Asha, J.
1. Appellant is the 1st defendant in O.S No.478 of 2007, on the file of the First Additional Sub Court, Thrissur. 1st respondent herin filed the suit against the appellant and his wife who is the 2nd respondent herein, praying for a decree for specific performance of Ext.A1 agreement. On coming to know about the settlement deed executed by the appellant in favour of his wife alienating the plaint schedule property in her name, the plaint was amended as per order in I.A No.626 of 2009, seeking a declaration that the document No. 902/07 of Sub Registry Office, Thrissur is not binding on the plaintiff or the plaint schedule property and cancelling the document.
2. The suit was decreed declaring that document No.902/2007 executed between the appellant and the 2nd respondent herein is a sham document not binding on the 1st respondent and directing the 1st respondent to pay the balance sale consideration of Rs.3,22,500/- to the appellant within 30 days and a further direction to the appellant herein to execute the sale deed in favour of the 1st respondent in respect of plaint schedule property. In the event of the parties refusing to receive the balance sale consideration, the 1st respondent could get the sale deed executed through court by depositing the sale consideration in the court.
3. The case of the plaintiff in the court below was as follows:
The appellant entered into an agreement with the 1st respondent on 3.11.2006, agreeing to sell the plaint schedule property, having an extent of 10.75 cents for a consideration @ Rs.30,000/- per cent. A sum of Rs.5,000/- was paid as advance on the date of agreement. Thereafter, another sum of Rs.10,000/- was paid on 2.12.2006 and its receipt was acknowledged as per endorsement made on the reverse side of the first page of the agreement. The time fixed for execution of the sale deed was on or before 3.5.2007. He used to request the appellant to execute the sale deed. In the week previous to the filing of suit, the appellant had told him that he has to think about it saying that there was hike in price of property. Even then he assured to bring the documents on 28.4.2007, but did not turn up. Therefore on 30.4.2007 a telegram was sent to him asking him to come prepared for execution of the sale deed on 3.5.2007. The 1st respondent was always ready with the requisite funds and was willing to perform his part of the agreement and he reminded and requested the appellant to execute the sale deed in time. After sending letter and telegram to the appellant, the 1st respondent waited for him in the office of the document writer and office of the Sub Registry. But the appellant did not turn up. When contacted over phone, the appellant told him that the 2nd respondent -his wife took the title deeds and kept it at her house and that she will not permit the sale unless the price is enhanced. The 1st respondent's case was that, the agreement was executed in the presence of the wife and she was aware of all the transactions. She was impleaded since she was aware of all the transactions and for felicitating production of the title deeds in the court. On the above averments a decree for specific performance of the agreement was sought. Subsequently the suit was amended seeking a declaration that the settlement deed executed by the appellant on 21.2.2007 in favour of his wife -alienating the property in her name was not binding on him or the property, saying that the same was intended only to defeat his claim. Since the settlement deed was executed while the agreement for sale was in force, it was not binding on the plaintiff; and the appellant continued to be in possession of the plaint schedule property. Therefore, the settlement deed which was executed fraudulently, was non-est in the eye of law. It was stated that the execution of the settlement deed was likely to create a cloud on the title with respect to the properties and therefore it was necessary to pass a decree cancelling the document. It was further stated that in the counter affidavit in support of the injunction petition - I.A No.3125/2007, the appellant had admitted the execution of the agreement for sale. However, in the written statement, he deviated from that version saying that, the agreement was a fabricated one fraudently created misusing the signed blank papers he had obtained from the appellant when he borrowed a sum of Rs. 5000/- from him. The deviation in the written statement, from the earlier stand, was a deliberate attempt to evade the execution of the sale deed.
4. The case of the appellant/1st defendant in the written statement was that his right over the property was already transferred in favour of his wife, before 3.11.2006 itself, as per a registered document, and the 2nd defendant mortgaged the plaint schedule property with a bank. Hence he did not have any right over the property and therefore the plaintiff was not entitled to any decree for specific performance as against him. He denied the execution of agreement and that it was created fraudulently by the 1st respondent, misusing the stamp paper and blank papers he got signed from him, when he had borrowed a sum of Rs.5,000/- from the plaintiff. He prayed for dismissal of the suit. In the additional written statement filed subsequent to the amendment of the plaint, he stated that the plaint schedule property was in the possession of his wife -the 2nd respondent, and she was the owner of the property. It was further stated that they wanted to construct a house in the plaint schedule property and wanted to have their own home as they were living in a rented house. He stated that he did not have any intention to assign the property at any point of time and had not entered into any agreement for sale, as alleged. The 2nd respondent had filed a written statement saying that the 1st respondent did not have any cause of action for filing any suit against her and therefore she was an unnecessary party, as she was not a party to the agreement. She stated that, it is for the appellant to return the amount if any received from the 1st respondent on the basis of the money transaction between them and the 1st respondent cannot have any claim over the plaint schedule property; she was not aware of execution of any agreement for sale. In the additional written statement, the contention of both the defendants was one and the same.
5. The court below framed issues as to (1) whether an agreement was entered into between the plaintiff and the defendants for sale of the plaint schedule property; (2) whether the defendant received advance of Rs.5,000/- from the plaintiff; (3) whether the plaintiff was ready and willing to perform his part of contract; (4) whether the defendant violated the terms and conditions in the agreement; (5) whether the plaintiff was entitled for declaration that document No.902/2007 was not binding on the plaint schedule property and the plaintiff and (6) whether the plaintiff was entitled to decree as prayed for.
6. The 1st respondent/plaintiff adduced oral evidence examining PWs 1 to 3 and documentary evidence by marking Exts.A1 to A5. On the side of the defendants, 1st defendant/appellant was examined as DW1 and Exts.B1 and B2 documents were marked.
7. On anlysis of the materials on record, the trial court found that the appellant had admitted the signature in Ext.A1 agreement for sale, though he denied its execution. According to him, he borrowed a sum of Rs.5,000/- for which the 1st respondent/plaintiff obtained his signatures in a blank stamp paper and other papers. But in the objection filed by him in I.A No.3127/2007 filed for temporary injunction, he did not raise such a contention. On the other hand, his case was that the sole reason for not executiing the sale deed in terms of the agreement was the lapses on the part of the plaintiff in performing his part of the agreement, whereas he had kept ready all the documents in respect of the plaint schedule property. His further contention was that it was not possible for the plaintiff to raise funds to purchase the property, as he did not have any occupation or other source of income. In his deposition as DW1, the explanation he offerred for adopting such a conflicting stand was that, at the time of filing objections to the injunction petition, a copy of the plaint was not available. The trial court noticed that he did not have any such case, at the time of hearing the I.A. The court below found it unbelievable seeing that the contents of the agreement as well as the payments made on different occasions were made clear in the affidavit in support of the I.A No.3125 of 2007. The court below found that such a twist in the stand was to avoid the execution of sale deed. It is pertinent to note that, he did not choose to state in that objection anything regarding the execution of the settlement deed in favour of his wife on 21.2.2007. Similarly, the 2nd defendant also did not state anything regarding execution of the settlement deed in the objection filed by her in I.A. 3125/07. Her contention was that the plaintiff was not ready or willing to perform his part of the contract. In these circumstance, the court below found that the 2nd defendant was very well aware of the execution of Ext.A1 agreement for sale. The trial court found that, evidence was sufficient to prove the execution of Ext.A1 agreement, the receipt of Rs.5,000/- towards advance and a sum of Rs.10,000/- subsequently, as evidenced from Ext.A1. On the basis of such admissions and conduct of the defendants and the evidence on record, the trial court found that Ext.A1 agreement was entered into between the plaintiff and the 1st defendant and the 1st defendant had received a sum of Rs. 5000/- from the plaintiff.
8. Regarding the readiness and willingness of the plaintiff, the court below, from the testimony of the plaintiff, found that he had approached the 1st defendant several times for getting the sale deed executed within the period of 6 months stipulated in the agreement. Apart from that even after receipt of the telegram sent by him on 30.04.2007, as evidenced by Ext.A3 postal receipt and the admission in the written statement, the defendants did not take any steps to perform their part. Moreover, from Ext.A4 receipt issued from the office of the Sub Registrar, it was found that the plaintiff was present in the Sub Registry on 3.5.2007, as intimated by him in the telegram.
9. On the question of availability of funds, trial court found, from Ext.A4 extract of accounts of the plaintiff with Vijaya Bank, Trichur Branch, that a sum of Rs.3,21,400/- was lying in deposit in the name of the plaintiff, as on 2.5.2007. Therefore, it was found that the plaintiff had sufficient means to pay the balance sale consideration.
10. Regarding the settlement deed executed on 21.02.2007, the court below found that it was executed when defendants 1 and 2 were fully aware of Ext.A1 agreement executed for sale of the plaint schedule property and the execution of such a settlement deed in a hurry within the time stipulated for execution of the sale deed was devoid of any bonafides. It was found that the only reason stated for execution of settlement deed in favour of the wife-2nd defendant was love and affection'. Moreover, it was found that the defendants had suppressed these facts from the court till they filed the written statement. Therefore, the court below held that Ext.B2 was a sham document, created for the sole purpose of evading the execution of sale deed. Further the court below found that the 1st defendant did not have any contention as to their intention to construct a house in the plaint schedule property. Further he did not adduce any evidence also in support of such a contention. It was further found that, in the settlement deed, nothing was stated as to the intention if any to construct a house.
11. In these circumstances, the court below found that the plaintiff was ready and willing to perform the contract; he had sufficient funds with him to pay the balance consideration. On the other hand, the 1st defendant, after entering into the agreement, created a document in favour of his wife and suppressed that fact from the court. The intention of the defendant was found only to evade the execution of sale deed. It was found that the defendants did not adduce any evidence to prove their contention that they wanted to construct a house. The court below, after evaluatiing the evidence on record, held that there was no circumstance to deny a decree for specific performance, and declared the settlement deed as a sham document. The trial court therefore decreed the suit declaring the settlement deed No. 902 of 2007 of SRO Ollukkara in favour of 2nd defendant as sham; directing the plaintiff to pay the balance sale consideration of Rs.3,22,500/- to the 1st defendant within one month and directing the 1st defendant to execute the sale deed or in the event of failure to do so to execute the sale deed through court.
12. The 1st defendant filed this appeal with the plaintiff as the 1st respondent and his wife - the 2nd defendant, as the 2nd respondent. The contention raised in the appeal is that the nature of the suit itself got altered on account of the execution of settlement deed and therefore no relief of specific performance could be granted by the court below, as there was no prayer sought against the 2nd defendant on whom the title of the property is vested. According to the appellant, the transaction was with respect to the borrowal of money and execution of document towards the security for the same. According to him, the counter statement to the injunction petition was filed in the absence of a plaint or other documents and therefore, the statements therein should not have been considered by the court below for arriving at its conclusion against the appellant. It was further contended that, there was no admission made by the appellant and he was only describing the circumstances in executing such an agreement. According to him, when he had stated in the written statement that the transaction was not a genuine one, there was no suppression as to the execution of the settlement deed. Further it was alleged that the readiness and willingness of the plaintiff could not have been said to be proved just because Ext.A1 was found to be a genuine document, without any pleading and proof. It was further contended that, there was no substantial injury caused to the plaintiff, whereas it caused substantial injury to the defendants, who did not have any house of their own and it was the only property with them. At the time of argument, the learned counsel for the 1st respondent argued that the appellant did not invoke relief under Section 19(b) of the Specific Relief Act; whereas his contentions were with respect to Section 39 of the Specific Relief Act. According to the learned counsel for the appellant, just because signature in Ext.A1 was admitted, it cannot be concluded that the contents of the agreement were admitted. The effect of Section 19(b) and Section 39 of the Specific Relief Act are entirely different. It was pointed out that, in order to seek cancellation of a document under Section 39, it was necessary for the plaintiff to remit separate court fee. On the other hand, the plaintiff did not remit the court fee saying that, it was an anciliary relief. At the same time, no relief was sought against the 2nd defendant in whose name the title of the property was vested, consequent to the settlement deed. In the absence of any decree against the 2nd defendant, the 1st defendant who did not have any title over the property could not have been asked to execute the sale deed.
13. It was argued that the 1st defendant was unable to execute the sale deed when the title over the property stood in the name of the 2nd defendant. It was contended that relief has to be stated specifically as provided under Order 7 Rule 7 of the Code of Civil Procedure. According to the appellant, the decree for specific performance could not have been granted in favour of the plaintiff, since there was no relief sought against the 2nd defendant and no court fee was paid as against the relief for cancellation of sale deed. Contentions were raised with respect to Section 54 of the Transfer of Properties Act and Section 91 of the Indian Trust Act. The learned counsel appearing for the appellant relied on the judgments in Bankim Chandra v. Anand Bazar Patrika [AIR (37) 1950 Calcutta 128],Thanga Pandiyan v. S.R.Periaswami Thevar [1953 KHC 196: 1953 KLT 475, 2015 KHC 90, etc. It was further argued that trial court was not right in decreeing specific performance of the agreement when hardship was on the defendant who wanted to construct a house in that property availing loan, apart from the hike in the market value of the property. The learned counsel appearing for the appellant relied on the judgment of this Court in Mohandas K. K. and others V Thankamma Pillai [2015 KHC 90] in support of his contention that, the court below ought to have refused relief of specific performance, on the ground of inadequacy of consideration as well as low bargaining position of the appellants.
14. At the same time, the learned counsel appearing for the 1st respondent pointed out that, it was not necessary to remit the court fee for the ancillary relief. As per Section 6 of Court Fees Act, court fee need be remitted only on the basis of valuation of the main relief. He further pointed out that, there was every reason for granting the decree for specific performance when the appellant had not pleaded or proved hardship if any caused to him, as held in Mohandas K.K and another v. Thankamma Pillai [2015 KHC 90]. Further the learned counsel for the 1st respondent relied on the judgment in Durga Prasad and Anr. v. Deep Chand and Ors. [AIR 1954 SC 75], Appukuttan v. Kamalakshi [1996(2) KLT 977], Dilip Bastimal Jain V Baban Bhanudas Kamble and others [AIR 2002 Bom. 279], judgment in W.P. 6225 of 2007 of Bombay High Court, Chendivel R vs G Damodaran and others [AIR 2015 Mad 96], 2010(2) KLT 642 (SC), etc. It was argued that, under Section 12(4) of the Kerala Court Fees and Suit Valuation Act, appellate court can permit payment of court fee, if at all found necessary. Relying on the judgment in Appukuttan vs Kamalakshy [1996 (2) KLT 977], it was contended that, payment of court fee in multifarious suits is governed by the provisions contained in Section 6 of the Act. The judgment in Dilip Bastimal Jain v. Baban Bhanudas Kamble [AIR 2002 Bombay 279] and the judgment dated 23.3.2009 of the High Court of Bombay in W.P(c) No.6225/2007 with respect to Section 6(ha) of the Court Fees Act were also referred to.
15. We have considered the rival contentions raised on either side, examined the pleadings and analysed the evidence on record. Ext.A1 is the agreement entered into between the plaintiff and the 1st defendant. Though the appellant admits his signature in the agreement, he denies its execution and says that it was fabricated. A perusal of Ext.A1 document would show that the appellant agreed to sell the plaint schedule property on conditions stipulated therein within a period of 6 months; he had received a sum of Rs. 5000/- on the date of agreement. The endorsement effected on the reverse of the 1st page of the agreement acknowledges the receipt of another sum of Rs. 10,000/- on 2.12.2006. Ext.A1 document contains the signatures of the appellant and the 1st respondent, on all the pages of the agreement and below the endorsement made on 2.12.2006 as to receipt of total amount of Rs.15,000/- towards advance. The signature of witness also is found. The respondent/plaintiff has proved these transactions by the documentary evidence as well as by his oral testimony corroborated by that of PW2 and PW3, who have witnessed the transactions. There is no material available, to substantiate the story of fabrication of document. Therefore, the appellant was bound to execute the sale deed on or before 3.5.2007. Ext.A4 statement of account of the Bank will show that the 1st respondent was having sufficient funds to pay the balance consideration. Ext.A2 letter, Ext.A3 cash receipt towards sending telegram and Ext.A5 receipt would show that the plaintiff was ready and willing to execute the sale deed. But Ext.B2 would show that the appellant alienated the property to his wife, who is the 2nd respondent, by way of settlement deed registered on 21.2.2007, when Ext.A1 agreement was in force. It also shows that settlement deed was executed for no consideration merely on account of love and affection towards the wife for the rest of her life and for residence. It was stated there that property along with the right of way to it was worth Rs.44,000/-. It is also pertinent to note the deposition of the appellant that, the property is worth Rs.12 lakhs i.e at the rate of Rs. 1.5 lakhs per cent. At any rate, there is no explanation for execution of such a document. Therefore, the court below has rightly found that the settlement deed was executed for evading the execution of sale deed.
16. Ext.B1 is seen marked in the proof affidavit stating that, it is a certificate issued from the Vellanikara Service Co-operative Bank towards loan availed. On perusal of the same it is seen that, it is a copy of Ext.B2 settlement deed with an endorsement in writing on the 1st page towards bottom with a seal "For Vellanikara Service Co- operative Bank Ltd No.549 Manager" and a signature. Endorsement is to the effect that, a sum of Rs.1,00,000/- is availed under Gehan Mortgage on the strength of the Ext.B2 and that the original document is kept in the Bank as there are arrears. In the proof affidavit DW1 stated that, loan was availed for constructing house. In the cross examination, he denied the suggestion that his versions as to availing loan and starting construction are all incorrect and for the purpose of creating evidence in the case.
17. In the light of the contentions raised, the issues to be considered are:
(i) whether the document Ext.B2 could have been set aside when court fee was not paid towards that relief;
(ii) whether the relief of specific performance was not liable to be granted without any decree as against the 2nd respondent when the title and ownership vested in her;
(iii) whether the incorporation of the prayer for cancelling the settlement deed will affect the benefit under Section 19(b) of Specific Relief Act.
18. The learned Counsel for the appellant contended that, the nature of the suit changed when the suit was amended seeking cancellation of settlement deed and therefore a decree for specific performance was not liable to be granted especially when relief was not sought against the 2nd respondent. He relied on the judgment of the Calcutta High Court in Krishna Chandra Kabiraj and others V Sankaran Kabiraj and others [AIR 1950 Calcutta 128]. There the suit was filed against a large number of defendants in different capacities, with respect to different transactions. The cause of action in respect of different groups were found to be different. Seeing that relief was not sought in respect of any single transaction made jointly, the appeal was allowed on the ground that the suit was bad for misjoinder of parties as well as of cause of action. Accordingly, the case was remitted to the trial court for giving opportunity to the plaintiff to amend the plaint and to elect against which of the defendants they would proceed to trial and to enable the defendants to file additional written statement, with liberty to the parties to raise preliminary objection as to maintainability. In this case, it cannot be said that there are innumerable causes of action or innumerable transactions. The plaintiff amended the plaint when the execution of settlement deed came to his notice. There was no circumstance as available in the decision relied on.
19. In Chendivel R vs G Damodaran and others [2015 KHC 2237: AIR 2015 Mad 96], a learned Single Judge held that the plaintiff who intentionally relinquished or omitted a relief which he could have sought at the time of filing the first suit, cannot thereafter be permitted to file a separate suit later seeking that relief. There the suit was filed for injunction against the revision petitioner and two others for restraining them from alienating of suit property. Plaintiff thereafter sought leave of the trial court to permit him to file a comprehensive suit for specific performance on a later stage. The court granted leave. Revision petition was filed as against the order granting leave contending that plaintiff should have filed a suit for specific performance in which it was possible to seek an injunction against alienation of the property. When the main relief of specific performance was not sought in the original suit, that omission has to be construed as relinquishment, under Order 2 Rule 2 of CPC. The agreement was for sale of property for a consideration of Rs. 4.4 crores. The plaintiff chose to file the suit seeking injunction restraining the defendants from alienating and encumbering the property alone, showing the valuation of the suit as Rs.1000/-. He did not choose to seek specific performance, in which case court fee would have been payable on the consideration of Rs.4.4 crores, as shown in the agreement for sale. It was held that the plaintiff could not have maintained a suit for injunction without seeking specific performance of the agreement for sale. The plaintiff, who evaded payment of court fee on plaint schedule property worth Rs.4.4 crores, cannot be permitted to file a suit for specific performance later. Relying on the judgments of the Apex Court in Vigro Industries Pvt Ltd V Venturetech Solutions P Ltd : 2012(5) CTC 359 and State Bank of India V Cracure Pharmaceuticals Ltd : 2013 STPL (Web) 939 it was held that, in view of Order 2 Rule 2, the object of which is to avoid multiplicity of suits, a person who omitted/relinquished certain reliefs which were available to him at the time of filing the first suit, cannot later be permitted to file a separate suit seeking the relief he had already relinquished. Hence the leave granted by the trial court was set aside. Therefore, if the plaintiff omits to sue in respect of or intentionally relinquishes any portion of his claim, he shall not afterwards be permitted to sue for the reliefs relinquished.
20. In this case, it cannot be said that the plaintiff relinquished any claim. At the time when he filed the suit, he was not aware of the execution of the settlement deed. The appellant or his wife did not disclose it when they filed their counter statements in the injunction applications.
21. Now we will examine the contentions as to payment of court fee. In Thanga Pandiyan vs S. R. Periaswami Thevar [1953 KLT 475], alternative relief for recovery of possession was sought in a suit for injunction. There plaintiff was directed to pay court fee on the market value of property. The suit was filed by the son against father as 1st defendant and a stranger as 2nd defendant, seeking injunction against the defendants from obstructing the plaintiff from taking yield from the plaint schedule property. Recovery of plaint property with future profits was sought from defendants 1 and 2 alternatively. Valuation of the suit for the purpose of court fee was made under clause viii (8) of schedule II of the Court Fees Act. The trial court directed the plaintiff to pay court fee on the market value of the property. The High Court upheld it. It was also held that, whenever the suit comes before Court of Appeal, reference or revision, it was open for that court to determine the court fees required and to direct the party to pay additional sums if necessary, if the first assessment of court fee was wrongly or improperly made to the detriment of the revenue. It was held that when the matter is before the High court, it can consider and determine the proper court fee to be paid by virtue of the proviso in section 9 of the Act. Paragraph 5 of Thanga Pandiyan vs S. R. Periaswami Thevar (supra) read as follows:
"5. The question now considered by the lower court was whether in suit for possession of land, building or garden which are not based on contract, the suit falls under section 3 (5) (a), or under clause 8 of Schedule II of the Court Fees Act I of 1125. For suits falling under section 3 (5) (a) of the Court Fees Act, Court fees has to be paid on the subject matter of the appeal. But if the recovery of possession is not based on a contract, there is a particular section of the Court Fees Act that could be made applicable to that and so the case will not fall under schedule II. In the present case it is seen that the plaintiff has in the alternative claimed relief for recovery of possession from defendants 1 and 2. Even if the 1st defendant is taken to be a care-taker under an arrangement between the plaintiff and himself, there is nothing to indicate that the 2nd defendant was interested in any way in that contract or that he has any thing to do with the plaintiff so far as the plaint property was concerned. This suit therefore should be taken to be one which is not based on a contract, and being so, he has to pay the court fees on the market value of the property as held by the lower court.."
22. In Appukuttan vs Kamalakshy [1996 (2) KLT 977], issue regarding the court fee payable was raised in the appeal. There the suit was filed for cancellation of a registered sale deed and for recovery of possession of plaint schedule property. Suit was valued for the relief of cancellation of document and recovery of possession separately at Rs. 1 lakh each. Suit was decreed setting aside the sale deed and granting the relief of recovery of possession. The appeal was valued at Rs.1 lakh adopting the market value of plaint schedule property as per the sale deed impugned. Court fee was paid under Section 40 of the Kerala Court Fees Act on the market value of the properties covered by the 2 sale deeds. In respect of the relief of recovery of possession court fee was not paid saying that relief sought was only ancillary to the relief of cancellation of sale deed. The cause of action was the same. The meaning of the word ancillary was examined and thereafter it was found that the relief of recovery of possession can only be treated as an ancillary relief to the main relief of cancellation of sale deed and under proviso to section 6 (1) of the Court Fees Act, court fee is payable only on the main relief. This Court relied on the judgments Thangachi Ammal vs Mohammed Moideen Maricair [ILR 56 Mad 401], Shyamlal vs Keshar Devi and others [ILR 1970 Raj 379].
23. In this case, court fee was paid only for the relief of specific performance of the agreement for sale. When the suit was amended incorporating the relief of setting aside the sale deed, court fee was not paid on the ground that it is only an ancillary relief. It is on this ground that, the appellant has filed this appeal. Section 9 of the Court Fees Act provides for granting of permission to pay additional court fee if any. Therefore the appeal cannot be dismissed on the ground that court fee is not paid, as contended by the appellant.
24. In this context, the judgment of a learned Single Judge of Bombay High Court, in Dilip Bastimal Jain V Baban Bhanudas Kamble and others [AIR 2002 Bom 279], relied on by Sri. K. G. Balasubramaniam, the learned Counsel for the respondent/plaintiff is relevant. The reliefs prayed for in that case, as seen from paragraph 6 of the judgment, are the following:
"i. The Defendant No.1 may be directed to execute a sale deed of the suit land in favour of the plaintiff by accepting the remaining consideration and be further directed to hand over the possession for the suit land of the plaintiff;
ii. It may be held and declared that all the sale transactions described herein above executed by the defendant amongst them are illegal and the said sale deeds are void and it be further declared that the defendants have got no right of ownership by virtue of the said sale deeds and the physical possession of the suit land may be handed over from them to the plaintiff.
iii. If there is any difficulty in executing the sale deed, the plaintiff may be awarded compensation from defendant according to the prevailing market rate."
There property was sold to defendants 2 to 5 subsequent to the agreement for sale and they in turn sold parts of the property to others. The defendants raised the contention that the suit claim was undervalued and the Civil Judge Junior Division did not have jurisdiction to try the case. The question of valuation and proper court fee payable was considered as a preliminary issue and trial court repelled the contentions on the ground that the main relief sought was for specific performance and declaration as to illegality of subsequent transfers was sought as ancillary relief. Relying on the judgment of Madras High Court in Vimala Ammal V C. Susheela [AIR 1991 Mad 209] and that of the Apex Court in Durga Prasad V Deep Chand AIR [1954 SC 75], reiterated in Dwarka Prasad Singh v. Harikant Prasad Singh [(1973) 1 SCC 179 :. AIR 1973 SC 655], it was observed that a relief for declaration as to illegality of subsequent transfers was not even necessary and that the only decree to be passed in such a case is against the original vendor. It was held that Section 19(b) provides for enforcement of the decree for specific performance against any other person claiming under the original vendor and it does not insist for a decree against such persons and that all what is necessary is that the party should be impleaded and the decree is required to direct such person to be a party to conveyance to be executed by the original vendor.
25. Dilip Bastimal Jain's case (supra) was followed by another Single Judge of the High Court of Bombay in the judgment dated 23.3.2009 in W.P. No. 6225 of 2007 (Khanderao V Bharathai). There suit was for specific performance of agreement of sale, recovery of possession and for declaration that the sale deeds executed subsequent to the agreement for sale, transferring the properties to other defendants, were ineffective. As per the rules existed at the relevant time of filing the case, the plaintiff being a lady was not required to pay court fee. However the trial court dismissed the suit. In appeal while determining the objections raised as to payment of court fee, the Court held that separate court fee was not required to be paid, for the ancillary relief sought in the plaint filed for specific performance.
26. Sri. Balasubramanyam furnished a copy of judgment dated 5.9.2006 of a learned Single Judge of the High Court of Delhi dated 5.9.2006 in Trident Projects and others V Sh. K.R. Dongre and others in which the judgment of Bombay High Court in Dilip Bastimal Jain's case, is followed. It was held that separate court fee is not required to be paid for the ancillary relief of declaration sought to invalidate a sale deed against subsequent transferees in a suit for specific performance of agreement for sale.
27. Section 6 of the Kerala Court Fees and Suits Valuation Act, 1959 reads as follows:
"Multifarious suits:
(1) In any suit in which separate and distinct reliefs are sought based on the same cause of action, the plaint shall be chargeable with a fee on the aggregate value of the reliefs:
Provided that, if a relief is sought only as ancillary to the main relief, the plaint shall be chargeable only on the value of the main reliefs.
(2) Where more reliefs than one based on the same cause of action are sought in the alternative in any suit, the plaint shall be chargeable with the highest of the fees leviable in respect of any one of the reliefs.
(3) Where a suit embraces two or more distinct and different causes of action and separate reliefs are sought based on them, either alternatively or cumulatively, the plaint shall be chargeable with the aggregate amount of the fees with which plaints would be chargeable under this Act if separate suits were instituted in respect of the several causes of action:
Provided that, where the causes of action in respect of reliefs claimed alternatively against the same person arise out of the same transaction, the plaint shall be chargeable only with the highest of the fees chargeable on them."
In the present case, the main relief sought in the plaint originally was for a decree directing the 1st defendant/appellant to execute and register the sale deed after receiving the balance sale consideration from the plaintiff/1st respondent within a period to be fixed and to hand over possession of the property. The additional relief sought by way of amendment as per order dated 9.9.09 was for a decree declaring that the settlement deed no. 902/07 registered in Sub registry office, Thrissur is not binding on the plaint schedule properties or the plaintiff and for canceling the same; The relief sought by way of amendment is ancillary to the main relief. Moreover such a relief itself was not required to be sought in view of Section 19 (b) of the Specific Relief Act.
28. In this case the subsequent transfer is in favour of the wife of the 1st defendant and without consideration, which is not protected from enforcement of a decree for specific performance. Initially the case of the appellant was that she was not agreeing for the sale and she insisted for a higher rate of land value. Going by the pleadings and the evidence, it cannot be said that the 2nd defendant, who is the wife of the 1st defendant, was not aware of the transaction. The transfer by settlement was neither for any value paid nor on good faith.
29. Thus when a decree for specific performance can be enforced against a transferee like the 2nd defendant - the subsequent transferee, by virtue of the provisions contained in Section 19, even without a separate decree cancelling the subsequent document or declaration as to its invalidity, as held in the judgments discussed above, and as the reliefs sought are for facilitating the decree of specific performance, such a relief can only be termed as an ancillary one which does not require separate court fee. Even otherwise the plaintiff cannot be non-suited for non-payment of court fee or for its deficiency, as the appellate court is conferred with the power to determine the proper court fee to be paid as provided in Section 12(4) of the Kerala Court Fees and Suit Valuation Act and in the light of the judgments of this court in P.P.S Pillai V Catholic Syrian Bnak [2000(3) KLT 629], Peter Cherian v. Abraham [2007 (4) KLT 680], etc.
30. It is also pointed out that under Section 40 of the KCF Act, the court fee, if at all payable is on the value of the property shown in the sale deed to be cancelled. As held by the apex court in Satheedevi v. Prasanna [2010(2) KLT 642 (SC)] the court fee payable is on the value of the property for which the document was executed and not its market value. By employing the deeming clause, the legislature has made it clear that if the document is sought to be cancelled, the amount of court fee shall be computed on the value of the property for which the document was executed and not the market value of the property. The words "for which" appearing between the words "property" and "other documents" clearly indicate that the court fee is required to be paid on the value of the property mentioned in the document, which is the subject-matter of challenge. The value of the property shown in Ext B2 is Rs.44000/-.
31. Regarding the question whether in the absence of any relief sought against the 2nd defendant the decree for specific performance of the agreement could have been passed when the title is vested in the 2nd defendant and when she is not a party to the agreement, it is necessary to have a look at Section 19 (b) of the Specific Relief Act, 1963 which reads as follows.
"19 Relief against parties and persons claiming under them by subsequent title.-
(a) either party thereto;
(b) any other person claiming under him by a title arising subsequently to the contract, except a transferee for value who has paid his money in good faith and without notice of the original contract;
(c) any person claiming under a title which, though prior to the contract and known to the plaintiff, might have been displaced by the defendant;
(d) when a company has entered into a contract and subsequently becomes amalgamated with another company, the new company which arises out of the amalgamation;
(e) when the promoters of a company have, before its incorporation entered into a contract for the purpose of the company and such contract is warranted by the terms of the incorporation, the company:
Provided that the company has accepted the contract and communicated such acceptance to the other party to the contract."
Thus it can be seen that under Section 19(b) of the Specific Relief Act, 1963 specific performance of a contract is enforceable against the subsequent transferee, who purchased the property with notice of the agreement, on payment of money without good faith.
32. In Ali Rowther v. Kochupennu [1986 KLT 718] a learned Single Judge of this court, after discussing a series of decisions including those which arose in the era of Manu, Yagnavalkia, etc. referring to West and Buhler on Hindu Law held that, the subsequent purchaser of property who was a party in the suit is bound to deliver possession in execution of a decree for specific performance, in which the sale deed is set aside, There suit was filed for setting aside the sale deed executed by the defendants 1 to 3 in favour of the 4th defendant and for specific performance of the agreement for sale between plaintiff and defendants 1 to 3. Suit was decreed setting aside sale and directing execution of sale deed in favour of plaintiff. Execution court ordered delivery of possession despite objection of 4th respondent that he was not bound by the decree. He took up the matter in revision contending that he is is not a contracting party and there is no decree or direction against him. Para 11 to 14 in which this court discussed the issue with reference to West and Buhler on Hindu Law is relevant which reads as follows:
"11. Equity acts on the conscience of a person. What one has undertaken to do, binding his conscience, ought to be done and equity courts therefore look to the acts of the person bound by his conscience and interpret and construe them in such a way that they amount to what ought to be done. I may say that this maxim of equity had its strong roots not only in the English legal system but also had well laid in the Indian legal system of the ancient time of Manu and Yagnavalkia. I shall quote West and Buhler Hindu Law page 14:
"All points of law, which may be left undecided by the works mentioned, may be settled according to passages from the Smritis or Dharmasastras, or even from the Puranas. The latter have less authority than the former, and may be overruled by them. In case of a conflict between the rules of the Smritis either may be followed, as reasoning on principles of equity (yuktivichara) shall decide the solution."
Yagnavalkia said where there is a conflict between Smritis, on principles of vyavahar, justice was supreme. Vide Yagnavalkia 2:21.
12. Chullavagga Vol. Vi. 49 records a case of specific performance which happened some four centuries before the Code of Manava. The case was before the Court of Lord Justices of Sravasti which was the capital of the Kingdom of Kosala. Sudatta a rich merchant of the Capital wanted to purchase a garden which belonged to Prince Jeta. Suddata was a charitable man and desired to make a gift of a particular garden to Lord Buddha. He enquired from the Prince as to what price he would take for the garden. Prince demanded an unreasonable sum but Suddata said "accepted I have taken the garden at that price." The Prince refused to part with the property and the merchant sued for specific performance. The Royal Judges, Vcharika Mahamatta heard and decided the case decreeing specific performance against the Prince following the principles of Dharma.
13. No doubt, this decision is recorded to illumine the practice of the theory that the principles of Dharma are above sovereign is also an object lesson to show that principles of the equitable jurisdiction of specific performance known to chancery courts alone in England were the law practised in ancient India, several centuries before Christ even during the time of Buddha. It is to be noted that the "merchant" wanted to buy the garden for the use of Buddha.
14. It has to be noted that the conception of law in Hindu jurisprudence owes its origin from the unswerving laws of the physical world. Dharma literally means "that which holds" that is "that which holds the universe the basic principles of the universe". Hence law was considered as supreme as even above sovereign in ancient India."
Referring to the judgments of Allahabad High Court in Kali Charanv. Janak Deo [A.I.R. 1932 Allahabad 694] and of the Supreme Courtin Durga Prasad V Deep Chand [A.I.R. 1954 S.C. 75], this courtfound that the subsequent transferee with notice of agreement forsale is bound by the decree of specific performance and he is todeliver possession to the decree holder when the sale is set aside. In the Allahabad decision it was held that such a purchase with notice of agreement is voidable at the option of the prior promisee and the agreement with him can be enforced specifically against the subsequent purchaser. It was held that in such a suit, the court should declare the second purchase null and void and cancel it and order the original promisor to carry out his contract by executing a sale deed in favour of the prior promisee. Though the apex court in A.I.R. 1954 S.C. 75 held that such a sale is only voidable at the option of the earlier contractor and held that the proper form of decree is to direct specific performance of the contract between the vendor and the plaintiff and direct the subsequent transferee to join in the conveyance so as to pass on the title in him to the plaintiff, as followed in Babu Lal v. Hazari Lal Kishori Lal [A.I.R.1982 S.C.818]. This court found that the view adopted by the Allahabad High Court was not held wrong by the Supreme Court. The petitioner therein raised the contention that he had no obligation to execute a sale deed under the decree and unlike the original owner -party to the agreement-he was not bound by the provisions in S.55 (1) of the Transfer of Property Act and hence the execution court cannot compel him to give delivery of possession. However it was found that under S.91 of the Indian Trusts Act, though it does not make a subsequent purchaser with notice a trustee, it casts an obligation on him in the nature of a trust to hold the property for the benefit of the prior contractor and such a contract is enforceable against such a purchaser, under Section 40 of the Transfer of Property Act also. After referring to the decisions of Supreme Court and the High Courts of Patna and Calcutta, it was held that the decree canceling the sale deed in favour of the 4th defendant implicits in itself an obligation on the part of the 4th defendant to deliver up possession of the property to the plaintiff and that obligation is incidental to the main relief granted and the executing court is bound to give effect to it by ordering delivery of the property from the 4th defendant. However in view of the decisions reported in Durga Prasad (supra) A.I.R. 1954 S.C. 75 and Babulal's case (supra) and the decisions in Potter v. Sanders (6 Ha. 1), Daniels v. Davison (17 Ves 433), Holmes v. Powell (8 De G.M. and G. 572) referred to by Fry in his book on Specific Performance, it was made clear that the proper form of a decree in a specific performance suit is to direct the subsequent transferee to join in the conveyance so as to pass on the title in the plaintiff. But in the circumstances of the case before it, which started in the year 1980, this court did not want to interfere in the matter in a revision petition under Section 115 of the Civil Procedure Code and did not consider it proper to direct the parties to file fresh suit.
33. In this context, the judgment in Thomson Press (India) Ltd. v. Nanak Builders and Investors (P) Ltd., (2013) 5 SCC 397 where the Apex Court was considering the maintainability of an impleading petition filed by a transferee pendente lite in a suit for specific performance, is relevant. After discussing various judgments as to the nature of decree to be passed in a case where the property covered by the agreement for sale is in the possession of a subsequent transferee, it was reiterated that there need not be any decree as against the subsequent transferee; but he need be joined in it for the purpose of conveying the title. The impleading petition was allowed on condition that they will be permitted to raise only those contentions available to the vendor. Paragraphs 39 to 43 of the judgment in Thomson Press (India) Ltd. v. Nanak Builders and Investors (P) Ltd.'s case (supra) read as follows:
"39. As discussed above, a decree for specific performance of a contract may be enforced against a person who claimed under the plaintiff (sic defendant), and title acquired subsequent to the contract. There is no dispute that such transfer made in favour of the subsequent purchaser is subject to the rider provided under Section 52 of the Transfer of Property Act and the restraint order passed by the Court.
40. The aforesaid question was considered by the Calcutta High Court in Kafiladdin v. Samiraddin (AIR 1931 Cal), where Their Lordships referred to the English law on this point and quoted one of the passages of the book authored by Dart, on `Vendors and Purchasers', 8th Edn., Vol. 2, which reads as under: (Kafiladdin case, AIR p. 68)
"`Equity will enforce specific performance of the contract for sale against the vendor himself and against all persons claiming under him by a title arising subsequently to the contract except purchasers for valuable consideration who have paid their money and taken a conveyance without notice to the original contract.'"
Discussing elaborately, the Court finally observed: (Kafiladdin case, AIR p. 68)
"This statement of the law is exactly what is meant by the first two clauses of Section 27 of the Specific Relief Act. It is not necessary to refer to the English cases in which decrees have been passed against both the contracting party and the subsequent purchaser. It is enough to mention some of them: Daniels v. Davison: 33 ER 978, Potter v. Sanders:67 ER 1057 and Lightfoot v. Heron: 160 ER 835.
The question did not pertinently arise in any reported case in India; but decrees in cases of specific performance of contract have been passed in several cases in different forms. In Chunder Kant Roy v. Krishna Sunder RoyILR (1884) 10 Cal 710 the decree passed against the contracting party only was upheld. So it was in Kannan v. KrishnanILR (1890) 13 Mad 324. In Himatlal Motilal v. Vasudev Ganesh Mhaskar:ILR (1912) 36 Bom 446 the decree passed against the contracting defendant and the subsequent purchaser was approved. In Faki Ibrahim v. Faki Gulam Mohidin AIR 1921 Bom 459 the decree passed against the subsequent purchaser only was adopted. In Gangaram v. Laxman Ganoba Shet Chaudole ILR (1916) 40 Bom 498 the suit was by the subsequent purchaser and the decree was that he should convey the property to the person holding the prior agreement to sale. It would appear that the procedure adopted in passing decrees in such cases is not uniform. But it is proper that English procedure supported by the Specific Relief Act should be adopted. The apparent reasoning is that unless both the contracting party and the subsequent purchaser join in the conveyance it is possible that subsequently difficulties may arise with regard to the plaintiff's title."
41. The Supreme Court in Durga Prasad v. Deep Chand: AIR 1954 SC 75 referred to the aforementioned decision of the Calcutta High Court in Kafiladdin case and finally held: (Durga Prasad case, AIR p. 81, para 42)
42. In our opinion, the proper form of decree is to direct specific performance of the contract between the vendor and the plaintiff and direct the subsequent transferee to join in the conveyance so as to pass on the title which resides in him to the plaintiff. He does not join in any special covenants made between the plaintiff and his vendor; all he does is to pass on his title to the plaintiff. This was the course followed by the Calcutta High Court in Kafiladdin v. Samiraddin, and appears to be the English practice. (See Fry on Specific Performance, 6th Edn., p. 90, para 207 and also Potter v. Sanders.) We direct accordingly."
42. Again in R.C. Chandiok v. Chuni Lal Sabharwal:AIR 1971 SC 1238:(1970) 3 SCC 140 this Court referred to their earlier decision and observed: (SCC p. 146, para 9)
"9. It is common ground that the plot in dispute has been transferred by the respondents and therefore the proper form of the decree would be the same as indicated at SCR p. 369 in Durga Prasad v. Deep Chand viz.
`to direct specific performance of the contract between the vendor and the plaintiff and direct the subsequent transferee to join in the conveyance so as to pass on the title which resides in him to the plaintiff. He does not join in any special covenants made between the plaintiff and his vendor; all he does is to pass on his title to the plaintiff'. (AIR p. 81, para 42)
We order accordingly. The decree of the courts below is hereby set aside and the appeal is allowed with costs in this Court and the High Court."
43. This Court again in Dwarka Prasad Singh v. Harikant Prasad Singh:AIR 1973 SC 655 subscribed to its earlier view and held that in a suit for specific performance against a person with notice of a prior agreement of sale is a necessary party."
In the light of the above legal position, there is nothing wrong in the judgment and decree passed by the court below.
34. The next question to be considered is whether the court below was right in exercising its discretion by decreeing specific performance. The appellant's case is that, in view of the hardship involved in the matter and the prevailing market value, the grant of decree for specific performance is inequitable. The respondent's case is that equity is in his favour, as held in the judgment in S.V.R. Mudaliar v. Rajabu F. Buhari, AIR 1995 SC 1607, where it was held that merely for the hike in prices during the litigation, specific relief cannot be denied. On account of the conduct of the defendants, who suppressed the fact of execution of settlement deed in their counter statement to the injunction petition and thereafter deviated their stand in the written statement, the trial court found no bonafides in their version and did not find any reason for denying a decree in favour of the plaintiff. It is pertinent to note that, even in the written statement what the appellant stated was that the settlement deed was executed and registered well before 3.1.1996, the date of agreement, and hence there was no occasion for him to enter into an agreement. In fact, the date of Ext.B2 is 21.2.2007, when there was hardly one week for expiry of the time stipulated for execution of sale deed. There is no material for coming to the conclusion that, there was any circumstance under which the decree can be reversed.
In the above circumstances, we dismiss the appeal and there shall be no order as to costs.