Subhadra And Ors vs Thankam

1. Ramakrishna Menon, who unfortunately died during the pendency of the litigation, entered into an agreement to sell, dated 20th June, 1979, in favour of Thankam for sale of the full rights over the property measuring about 5 cents of land in Sy. No. 460/3 in Peringavu Village and all improvements purchased and processed by him under the Document No. 1887 of 1969 and registered in Paras 283 to 285 of Book No. 1 Volume 54 of Thrissur, Sub Registrar Office for a total consideration of Rs.45,250/-. A sum of 1 Rs.5,000/- was paid by way of earnest money and it was agreed that the sale deed would be executed in favour of the predecessor, within six months from the date of the execution of the Agreement. It was also stated in the Agreement, which came to be exhibited as Ext.A1 during the course of recording of evidence, that all receipts, encumbrance certificate etc. should be taken and handed over to the predecessor at the time of execution of the sale deed. In other words, the sale deed was to be executed on or before 20th December, 1979. Thankam served the Registered Notice dated 10th December, 1979 upon the seller stating that they were always ready and willing to purchase the property and were ready to execute a sale deed, free of encumbrance, in their favour. A reply to the above notice was given on 12th December 1979, saying that the seller was prepared to give the land lying within the four well-defined boundaries, but only 5 cents would be given to the plaintiff. Thereafter, the defendant tried to demolish the northern boundary wall and tried to shift it towards the south. A suit was instituted by Thankam as O.S. No. 1387 2 of 1979 simply to prevent this mischief in which a commissioner was appointed to file a report after making an inspection of the property. Thereafter, the predecessor in interest and her husband approached the defendant with the balance consideration to get the sale deed executed, which was not so done and they, then, filed a suit for specific performance, which came to be registered as O.S. No. 3 of 1980.

3. Both the above suits were tried together and finally, vide its judgment and decree dated 24th March, 1994, a decree was passed in favour of the respondent in both the suits. While granting a decree for specific performance, the Court directed the payment of the balance price of Rs.45,250/- at the time of registration of the sale deed. In the event the appellant failed to get the sale deed executed, the same was to be executed through the Court at the cost of the appellant. This judgment and decree of the trial Court was challenged by the appellants by filing two separate appeals being Appeal Nos. 354 of 1994 and 667 of 1995 before the High Court of Kerala at Ernakulam. The High Court rejected both the appeals and while relying upon the report of the commissioner Ext.C1, it held that in the agreement, the intention of the parties was to sell the entire property obtained by him as per Ext.B1, in which the property had been fully described and 5 cents did not refer to the entire subject matter agreed to be sold under the terms of Agreement Ext.A1. Being aggrieved by the judgment of the High Court dated 11th November, 2003, the 4 appellant has filed the present two appeals being Civil Appeal Nos. 291-292 of 2006. The main contentions raised before us are that the language of Agreement Ex.A1 is ambiguous, uncertain and that the respondent ought to have sought rectification of the deed in relation to that extent of the property in terms of Section 26 of the Specific Relief Act 1963 (hereinafter refer to as `the Act'). It is further argued that the Courts in the judgments under appeal have failed to appreciate the documentary and oral evidence in its correct perspective inasmuch as only 5 cents of land have been agreed to be sold to the respondent by the appellant and/or their predecessor in interest and that much of land was not available.

9. For the reasons afore recorded, we see no merit in the present appeals and same are dismissed. While declining to interfere in the concurrent judgment of the courts, we dismiss these appeals. The parties are, however, left to bear their own costs.

....J. [ SWATANTER KUMAR ] New Delhi July 8, 2010.