Judgment:
E. Padmanabhan, J.
1. Appeal Suit No. 1066 of 1988 has been preferred by the second defendant in the suit, being aggrieved by the judgment and decree, dated 8-4-1988 made in O. S. No. 60 of 1983 on the file of theSubordinate Judge, of Tiruvellore, in granting the relief of specific performance against the second defendant.
2. The plaintiff in the Suit O.S. No. 60 of 1983 on the file of the Sub-Judge, Tiruvellore, who is the first respondent in A.S. No. 1066 of 1988 has preferred Cross Objection No. 58 of 1991 insofar as his suit claim has been dismissed against the 5th defendant.
3. Dr. Williams, the plaintiff in O.S. No. 60 of 1990 prayed for (i) a decree granting specific performance of the contract of sale by directing the defendants to receive the balance of sale consideration of 19,274/-, execute and register a sale deed in favour of the plaintiff for a sale consideration of Rs. 60,000/- within the time that may be fixed by the Court and in default by the defendants the Court to execute and register the sale deed; (ii) for permanent injunction restraining the defendants from interfering with the plaintiffs peaceful possession and enjoyment of the suit property by restraining the defendants from evicting the plaintiff from the suit property and (iii) for cost and other incidental reliefs.
4. The suit property is the house and ground bearing Door No. 166 (old) and 316 (new) G.N.T. Road, Redhills, Narvarikuppam, Madras-52.
5. Plaintiffs case:-- The first defendant owned the suit property. The first defendant entered into a contract of sale on 13-1-1977 with the plaintiff to sell the schedule mentioned property for a total consideration of Rs. 42,500/- and no date has been fixed for performance by way of execution of sale deed. The first defendant agreed to discharge the existing debts on the schedule mentioned property to the plaintiff by adjusting the debts towards part of sale consideration. The first defendant also agreed to furnish an encumbrance certificate. The first defendant had expressly undertaken to obtain a letter of consent from Dilli Achary to close the ventilators and remove the sun shades that had been put up by the said Dilli Achaiy who occupies the house to the north of the suit property. Similarly the first defendant agreed to obtain letter of consent from M/s. Adityan Stores to the effect that the said Adityan would give consent to demolish the sun shades and close down the ventilators whenever the plaintiff wanted to construct on the suit site. On 6-12-1980 the original agreement dated 13-1-1977 wasmodified and the consideration was increased to Rs. 60,000/-. By 6-12-1980 the first defendant had received further portion of consideration to the tune of Rs. 40,000/- under various heads including plaintiffs obligation to discharge a debt due to Parasammal in a sum of Rs. 6,000/- and also received a further sum of Rs. 300/-. The first defendant though agreed to receive the balance of Rs. 19,275/- on or before 31-1-1991 and complete the sale by executing a registered sale deed, had subsequently been pleading for time to obtain the letters of consent. The plaintiff paid Rs. 1750/- on 28-3-1991 and Rs. 600 on 1-4-1981 and Rs. 950 on 29-2-1981 respectively. The first defendant approached the plaintiff and wanted money to discharge a debt of Rs. 6000/- due to Parasammal, which she will discharge directly and thereby she will be able to bargain with Parasammal and wanted a frsh agreement to be entered into affirming the correctness of amounts already received from and out of the sale consideration. Accordingly the first defendant executed a third agreement on 29-7-1981 in favour of the plaintiff under which the first defendant acknowledged the receipt of Rs. 6725/- besides deriving satisfaction to the tune of Rs. 21,000/- by way of liquidation of mortgage principal amount. The first defendant also acknowleged the receipt of Rs. 3000/-from the plaintiff in other respects. As on 29-7-1981 on deriving the total satisfaction of Rs. 40,725 the first defendant orally requested the plaintiff to grant her time for production of consent letters from Dilli Achary and M/s Adityan Stores and that she will receive the balance of sale consideration of Rs. 19,725/- and execute a formal registered sale deed in favour of the plaintiff.
6. The plaintiff for the first time came to know from the second defendant's notice dated 9-4-1982 that the 1st defendant had committed breach of the suit agreement by selling the suit property to the 2nd defendant under sale deed dated 26-12-1981 for a sum of Rs. 70,000/-. It is further alleged that one Mr. Kalifullah an agent of the de facto Trustee committed breach of the suit agreement and was the brain to sell the suit property to the second defendant by promising to pay Rs. 10,000/-, more and the first defendant was lured by the enhanced price of Rs. 10,000/-. The second defendant and her husband were fully aware that the first defendant had entered into an agreement tosell the suit property to the plaintiff. The first defendant is bound to honour the obligation under the sale agreement and convey the suit property to the plaintiff after receiving the balance amount of Rs. 19,275/-. The second defendant had wilfully purchased the suit property with notice of the subsisting rights of the plaintiff under the suit agreement. Hence the present suit for specific performance of the agreement against the defendants.
7. The defendants 3 to 5 have been impleaded for effective adjudication. It is further pleaded that the plaintiff has been ready and continues to be ready and willing to perform his part of the contract at all material point of time. The plaintiff had performed his part of the contract and willing to do if anything is found to be due in the discharge of his obligations under the terms of the contract. The plaintiff is depositing the sum of Rs. 19,275/- to the credit of the suit representing the balance of sale consideration. The plaintiff further pleaded that he had been inducted into possession of the suit property long prior to the date of original agreement as a tenant and it was orally agreed that rents payable to the first defendant has to be appropriated towards liquidation of interest due under the mortgages. Under the terms of the suit agreement it was agreed between the plaintiff and the first defendant that the plaintiff shall continue to be in possession as agreement holder. Possession of the plaintiff is in part performance of the contract of sale and the plaintiff is entitled to maintain the action in this respect as against the defendants.
8. The second defendant who is fully aware of the sale agreement between the plaintiff and the first defendant had deliberately filed a suit O.S. No. 456 of 1982 on the file of the District Munsif Court, Ponneri for evicting the plaintiff from the suit property on the ground that the second defendant is the owner and successor in interest of the original land lady, the first defendant. The tenancy has been determined by reasons of the subsequent intervention of the suit contract. As there are attempts to dispossess the plaintiff he also seeks for relief of injunction.
II-Case of the first defendant :--
9. The first defendant Beejan Begam @ Kapsar Begum filed a written statement denying each and every one of the avermentsset out in the plaint. The first defendant also denied the averment that she had entered into an agreement to sell the suit property item for Rs. 42,500/- on 31-1-1977. The first defendant also denied that she had agreed to discharge or adjust any debt or furnish any encumbrance certificate, the first defendant further pleaded that she had never agreed to secure any consent letter from Dilli Achari or M/s. Adityan Stores as pleaded by the plaintiff, that there was no modification of any agreement, that the first defendant never directed the plaintiff to discharge any debt, that the first defendant never received Rs. 300/-, that she never pleaded for extension of time either, that the plaintiff is put to strict proof of the documents dated 6-12-1980, and 29-7-1982, that she did not acknowledge receipt of any money in the circumstances mentioned, that her three daughters have become the owners of the suit item and therefore the first defendant is not the full owner, on 7-7-1979 her daughters claimed in the papers by publication that nobody should enter into any kind of transaction with the first defendant with reference to the suit item, besides issuing printed pamphlets, the alleged agreement dated 13-1-1977 is barred by time, that the plaintiff has to strictly prove the same and how it is enforceable, that she had not executed the document dated 6-12-1980 as well as various other documents as alleged by the plaintiff, that the plaintiff secured several signatures on blank sheets for adjustment of the rents and interest due, that she suspects foul play by plaintiff, that she had not executed the document dated 29-7-1981, that the document dated 29-7-1981 is a farce one, that the signatures found therein are not hers, that the suit for specific performance is not enforceable or maintainable, that the suit is bad for non-joinder of necessary parties, as all the persons having interest in the property are neither parties to the transaction nor before Court or agreed to execute the sale deed and that the plaintiff is not entitled to any relief in the suit.
10. The second defendant Pushpa Bai filed a separate written statement denying contents of the suit plaint and pleading that the plaintiff is not entitled to specific performance. It is the case of the second defendant that the first defendant is not the absolute owner of the suit property as she had only 9/12th share of the superstruture which forms part of the suit property, that the landover which the superstructure stands belongs to Tulukkan Chatram Trust of Redhills, that the contract of sale entered into between the plaintiff and the first defendant is not valid in law and in any event it exceeds the share of the first defendant and as such it is not enforceable in law, that the first defendant was completely under the control and pressure of the plaintiff who was her creditor all along, that the original agreement dated 13-1-1977 was not revised as suggested, nor a fresh agreement was executed on 6-12-1980, that the so-called agreement is in the nature of a letter and no rights flow under the document. It is pertinent to note that only the first defendant seems to have signed the alleged agreement and as against the other sharers it is silent, which clearly exposes the bogus nature of the transaction, that the first defendant had not executed the third agreement in favour of the plaintiff, that the alleged third agreement is a cooked up document and intended to knock away the property, that the other sharers of the property are not parties and no prudent man would have advanced such a huge amount without the consent of the other sharers, that the plaintiff had approached the Court with unclean hands, that the plaintiff was fully aware of the negotiations between her husband and the first defendant with regard to the purchase of the suit property, that at any point of time the existance of an agreement was made known to the second defendant by the first defendant or by the plaintiff excepting the mortgage debt and the lease agreement, that she is the bona fide purchaser of the suit property from all the sharers for valuable consideration without notice of any prior agreement, that the sale deed in favour of the plaintiff by the first defendant as well as the sale in favour of the second defendant was made known to the plaintiff by the first defendant as well as the second defendant and it is false to state that only after receipt of a notice dated 9-4-1982 the plaintiff came to know of the purchase, that the allegations made by the plaintiff are baseless and it is intended to tarnish the image of the power of attorney agent, that the second defendant is a bona fide purchaser for value, she is not liable to perform the contract as claimed by the plaintiff, that the very fact that the plaintiff had come to the Court after a long delay of nearly seven years after the so-called agreement dated 13-1-1979 disentitle the plaintiff to claim the discretionary reliefof specific performance of the contract, that the inordinate delay is willful and amounts to waiver or giving up the contract. Even if it is true as the plaintiff had come with unclean hands claim the relief of specific performance which if granted will confer unfair advantage upon the plaintiff and would put a third party, the second defendant, to serious prejudice and irreparable loss, that the Court of enquity should refuse the relief of specific performance not only in view of the inordinate delay, but also due to the undue influence, pressure and control which the plaintiff had exercised upon the first defendant for the last seven years to create an advantage for himself, that the latches on the part of the plaintiff and his conduct for the past seven years as could be evidenced, which disentitle the plaintiff to the relief of specific performance, that the possession of the plaintiff in respect of the suit property springs from his tenancy and he is entitled to remain only as a tenant, that It is absolutely baseless and untenable to allege that the plaintiff as such continues to be in possession as agreement holder, that the second defendant emphatically denied all the allegations and also denied the claim that the plaintiff is in possession as part performance of the contract of sale, that the plaintiff is not entitled to maintain the suit, that the second defendant having purchased the suit property by registered sale deed dated 26-12-1981 called upon the plaintiff to attorn her and her vendors were also informed about the consideration in favour of the second defendant, that having been informed of the sale as early as December. 1981, the plaintiff put off payment of rent to the second defendant with oblique motives, that the second defendant caused a notice to the plaintiff and called upon him to surrender possession, that the second defendant after terminating the tenancy instituted O.S. No. 456 of 1982 with a false case of a subsisting right to purchase the property having abandoned his rights under the agreement of sale dated 13-1-1977, that the plaintiff has not only come with unclean hands, but has come with inordinate delay of seven years and therefore the plaintiff is not entitled to the relief of specific performance, that the plaintiff is entitled only to the amount due under the mortgages and the lease deed and is not entitled to claim specific performance of the agreement, that the plaintiff is not entitled to the reliefs prayed for in thesuit, that the first defendant owns a fractional share and since the other co-owners and co-sharers have not agreed with the plaintiff to sell their respective shares, the plaintiff is not entitled to the relief of specific performance as prayed for.
11. The second defendant in the suit, as already mentioned above, instituted the Suit O.S. No. 47 of 1984 for recovery of possession. The said suit was resisted by defendants 1 and 2 pleading that the defendants have not received the sum of Rs. 19,725/-, that such an averment is false, that on execution of sale agreement, the relationship between the plaintiff and the first defendant ceases to be that of a landlord and tenant, but he is in possession as a person who had entered into an agreement to sell.
12. In O.S. No. 60 of 1983, the trial Court framed the following issues :--
(1) Whether the agreement dated 13-1-1977, 6-12-1980 and 29-7-1981 are true?
(2) Whether the agreement is binding on all the owners?
(3) Whether the defendant had paid any amount? and whether it has been acknowledged ?
(4) Whether the suit is maintainable?
(5) Whether the second defendant is a bona fide purchaser of the suit property for value without notice?
(6) Whether the plaintiff is entitled to the relief of specific performance?
(7) To what relief, the parties are entitled to?
13. In the suit O.S. No. 47 of 1984, the following two issues were framed :--
(1) Whether the plaintiff is entitled to recover possession from the defendnats?
(2) To what relief the plaintiff and the defendants are entitled to
14. On the filing of a joint memorandum the two suits were consolidated. In the suit O.S. No. 60 of 1983 oral evidence was let in. On the plaintiffs side two witnesses were examined. The plaintiff marked Exs. A.1 to A. 11, while the defendant marked Exs. B.1 to B.8. The plaintiff had examined himself as P.W. 1 and one Shajahan Begum as P.W.2. The defendant examined one Beejan Begum as D.W.1, Mitalal as D.W.2 and Kallifullah as D.W.3.
15. The suit O.S. No. 47 of 1984 whichwas instituted by the second defendant in O.S. No. 60 of 1983 was dismissed with costs while in the suit O.S. No. 60 of 1983 the trial Judge granted a decree as prayed for while directing defendants to exclude sale deed after receipt of the balance consideration of Rs. 19,275/-, that the defendants are not entitled to interfere with the plaintiffs possession who had purchased the suit property as seen from the document.
16. The trial Court on the first issue held that Exs. A.1, A.2 and A.6 are true, that the plaintiff is entitled to the alternative relief. The trial Court also dismissed that the suit as against the 5th defendant and held that the plaintiff is entitled to maintain the suit as against the defendants 1, 3 and 4 and in the light of the said findings, the trial Court passed a decree for specific performance in O.S. No. 63 of 1983 and the Learned Judge dismissed O.S. No. 47 of 1984 instituted by Pushpa Bai the second defendant in O.S. No. 60 of 1983.
17. During the course of the argument, the learned counsel for the plaintiff stated that cross objection is given up. The memo dated 16-2-2001 was filed by the plaintiff giving up the plaintiffs right to shares of the defendants 3 and 4 in the event of this Court holding that the suit is liable to be dismissed against defendants 3 and 4 and his readiness to accept 9/12th share of the first defendant in the property. Mr. S. Raghavan, learned counsel for the appellant/the second defendant admitted that an appeal preferred against the Judgment and decree of the trial Court in O.S. No. 47 of 1984 on the file of the District Court, Chengalput though presented had not been re-presented or prosecuted and that the dismissal of the O.S. No. 47 of 1984 is final.
18. In this appeal, the following points arise for consideration :--
(1) Whether the suit claim for specific performance is barred by limitation?
(2) Whether the alleged agreements Exs. A.1, A.2 and A.6 are true or fabricated and enforceable against all the defendants or against the first defendant alone ?
(3) Whether the plaintiff-agreement holder was ready and willing to perform his part? Whether by conduct the plaintiff had abandoned his right, if any under Ex.A.1 ?
(4) Whether the suit for specific performance of a contract, different from what isagreed is enforceable?
(5) Whether the plaintiff had approached the Court with unclean hands?
(6) Whether the plaintiff is entitled to specific performance of the agreement on the fact of the case and whether the plaintiff could be permitted to elect at the final hearing of the appeal, a belated point of time, without a plea?
(7) Whether the second defendant is a bona fide purchaser for value without notice of Exs.A.2 and A.6 etc., agreements?
(8) to what relief the cross objector is entitled?
(9) Whether the dismissal of the suit O.S. No. 47 of 1984 constitute res judicata?
(10) To what relief, if any the appellant is entitled to?
19. The plaintiff marked Exs. A.1 to A.11 and the defendants marked Exs. B.1 to B.8. The first defendant had examined himself as P.W.1 and Shajahan Begum as P.W.2, while the defendants have examined the first defendant as D.W.1 and two other witness as D.Ws. 2 and 3.
20. Heard Mr. S. Raghavan, learned counsel appearing for the appellant, Mr. T.V. Ramanajuam, learned senior counsel appearing for Mr. T.V. Krishnamachari for the first respondent, Mr. Inamdar Abdul Gayum, learned counsel appearing for the remaining respondents.
21. As already stated cross objection No. 58 of 1991 preferred by the second defendant in the suit need not be considered as the counsel for the cross objector/second defendant fairly realising the situation represented that the cross objection is not pressed. Hence, point No. 8 is answered accordingly.
22. Ex. A. 1 is the agreement dated 13-1-1977 and it was followed with an agreement Ex.A.2 dated 6-12-1980 and a latter agreement Ex. A.6 dated 29-7-1981. Ex.B. 1 is the agreement executed by the first defendant and four others in favour of Davachand, brother-in-law of the second defendant. On 26-12-1981 the defendants 3 to 5 conveyed the suit property in favour of the second defendant and the said sale deed has been marked as Ex. B.2 = Ex. A.10. After the said purchase under Ex. A.10, the first defendant had written a letter to the plaintiff and his wife to attorn the tenancy and pay therents. Thereafter on 9-4-1982 under Ex.A.7 = Ex. B.4, the second defendant had caused a notice to the plaintiff and his wife which has been acknowledged on 30-4-1982. O.S. No. 456 of 1982 was filed by the second defendant against the plaintiff on the file of the District Munsif Court, Ponneri against the present plaintiff and his wife, Ambalavani for ejectment.
23. The two suits were ordered to be consolidated and consequently the suit O.S. No. 456 of 1982 pending on the file of the District Munsif Court, Ponneri was transferred and re-numbered as O.S. No. 47 of 1984 and tried along to the file of the Sub-Court, Tiruvellore, with O.S. No. 60 of 1983. The suit for ejectment is earlier in point of time.
24. On 25-2-1987 the plaintiff filed an interlocutory application I.A. No. 330 of 1986 to implead the defendants 3 to 5 which application was allowed. However, the amendment had not been carried out. As already pointed out the trial Court granted a decree for specific performance in O.S. No. 60 of 1983 against the defendants 1 to 4 and dismissed the the same as against the 5th defendant.
25. It is also admitted that the land belong to Tulukkan Chatram WAKF. Under Ex.B.1 dated 16-12-1981 the said Tulukkan Chatram Trust Wakf and Sikkandar Sahib entered into a lease agreement. On 12-9-1952 Mohammed Yasin prior owner of the superstructure which had fallen down had executed a sale deed in respect of the superstructure in favour of M.K. Sikkandar Sahib along with leasehold right. It is claimed that the existing superstructure had been put up by Sikkandar Sahib who died during the year 1960 leaving behind his two wives, namely Khader Bee and the first defendant Beejan Begum @ Kafsar Begum and three daughters (defendants 3 to 5 through the first defendant).
26. It is the plea that on 21-5-1965 a registered release deed was executed by all the legal heirs of the deceased in favour of the first defendant, but the alleged document of release had not been marked, under Ex.B.6 dated 19-7-1967, the first defendant had executed a deed of settlement in favour of the defendants 3 to 5 of their 3/12th share in the property. Thereafter under Ex.A.8, on 19-9-1972 a registered second mortgage was executed for securing repayment ofRs. 10,000/- in favour of the plaintiff.
27. Under a registered lease deed dated 24-8-1975, marked as Ex.A.9 the first defendant had leased out the property in favour of the plaintiffs wife Ambalavant, for a period of 5 years with various stipulations set out therein. The Rent agreed being Rs. 300/- per month and advance paid being Rs. 2500/- under Ex.A.11. It is now pleaded that the rent has to be adjusted towards Interest due under Ex.A.8 and Ex.A.9, second mortagage executed by the first defendant in favour of the plaintiff and Ex, B.9 has been executed by the first defendant in favour of the plaintiff on 24-8-1975. Ex.A. 10 is the sale deed executed by the first defendant and three others in favour of Pushpa Bai. Apart from the above documents, there has been exchange of notices which requires a mention.
28. That apart, curiously, the first defendant who has been examined as D. W. 1 in the chief examination supported the second defendant and thereafter shifted her stand in favour of the plaintiff, but she had not made herself available for cross examination by the contesting defendants. It is to be pointed out that no coercive step had been taken to compel the said witness to come before the Court and depose or subject herself to the cross examination by the contesting parties. Therefore this Court has to consider the evidence of the D.W.1 very carefully as the conduct of D.W. 1 is extraordinary as she had adopted a shifting stand from time to time besides she had blamed her Kariasthar and also avoid the witness stand at the stage of cross examination.
29. D.W. 1 and her children were right through in financial strain and they have not acted Independently at any stage. But on the other hand they had acted at the instance of other plaintiffs or other defendants depending upon the time or contigency and whichever side she saw butter on bread. The financial frustration of D.W. 1 and her family members had been taken advantage by the contesting parties and they exploited the family members of D.W. 1, which is evident from their conduct either before suit as well as pending suit or appeal. In the circumstances the evidence of D.W. 1 as well as the truth, genuineness of agreements A. 1, A. 2 and A.6 are to be scanned carefully.
30. In fact, the evidence of D.W. 1 which is contrary to her pleadings is inadmissibleif it is held that D.W. 1 had not filed her written statement and somebody else had filed to which either she had subscribed her signature or mark, even then one or the other contesting defendants have to suffer as they have chosen to exploit the impecunious circumstances in which D.W. 1 and her family were placed and their being under the control of one or the other party as they had subjected themselves to the dictation or control of one or the other and they have not acted independently as well, much less to protect their Interest.
31. Though the plaintiff has pleaded that the plaintiff has been ready and continue to be ready and willing to perform his part of the contract at all material point of time and though the plaintiff had deposited R. 19,275/- to the credit of the suit at the time of institution, being the balance of sale consideration, the very conduct of the plaintiff would show that the plaintiff has not been ready and willing to perform his part of the contract and under some pretext or other the plaintiff had delayed the completion of sale which had made the first defendant to join with the second defendant at one stage or a particular point of time to convey the property. The second defendant or the person through whom an agreement to purchase was subsequently entered with the first defendant and her children also are not bona fide purchasers and they had the full knowledge of the first agreement and they cannot plead ignorance or innocence in respect of the agreement entered between the plaintiff and the first defendant.
32. Ex.A. 1 is the agreement dated 13-1-1977 entered between the plaintiff and the first defendant based upon which the suit has been filed. Ex.A. 1 had not been signed by the plaintiff. But it has been signed by the first defendant Beejan Begum in Urdu. Ex. A. 1 has been typewritten in English. It runs to two full pages on two stamp papers purchased in the name of the plaintiff. Ex. A. 1 proceeds as if the first defendant is owner of the suit property, that she had already executed two mortgages in favour of the plaintiff for Rs. 10,000/- and Rs. 11,000/- besides she had borrowed Rs. 25,000/-. The sale consideration agreed under Ex. A. 1 is Rs. 42,500/-, besides a sum of Rs. 4000/-has been paid on the date of agreement.
33. Ex. A. 1 is subject to the vendor,getting consent letters from Dili Achari and M/s. Adityan Stores with respect to the ventilators put by him on the northern side as well as the first defendant has to secure the sanction from the appropriate authorities. Schedule in Ex. A. 1 reads thus :--'House and ground with the land belonging to Tullukkan Chatram Trust'. Immdiately below the schedule the recital reads as if both the parties have signed or affixed their signature on the agreement. But factually the first defendant alone had signed. Apart from the first defendant signing in Urdu three left thumb impressions at the bottom of the second page are noticed. Two other thumb impressions also are found on the bottom of the second page. One is of John Basha and the other is not known as to who had affixed his thumb impresssion. One of the contention being that Ex.A.1 not having been signed by the plaintiff, being an inchoate document and in the light of the denial by the defendant the plaintiff cannot enforce the agreement. This contention cannot be brushed aside.
34. Concedingly the superstructure has been put up on the leasehold site belonging to Tullukkan Chatram Wakf, and the site was not owned by the first defendant or by her husband. It is also pointed out that without the consent of Tullukkan Chatram Trust, the lessee cannot convey the superstucture to anyone else. This again is a point to be reckoned cumulatively with other material points advanced by either side. The superstructure alone was put up by the lessee Sikkandar Sahib during his lifetime. Sikkandar Sahib died leaving behind the first defendant and his children through the first defendant and therefore it is clear that the first defendant alone is not the owner and being a Mohammedan, she has no lawful authority to agree or to convey the suit property on the date when Ex. A. 1 was executed on behalf her children and as well as on a later date as well.
35. Ex. A. 1 proceeds as if the first defendant Beejan alone is the owner of the superstructure or suit property which is factually not so and it is admitted by either side. Ex. A. 1 had not been assigned by the purchaser even though the purchaser had come with the suit.
36. The first defendant had denied and disputed the very agreement as well as the subsequent letters Exs. A2 and A.6. It is notas if the first defendant had accepted the same. The first defendant in her written statement denied the very factum of entering into an agreement with the plaintiff as well as the alleged agreement Exs. A. 1, A.2, and A.6. The first defendant also pleaded that she had neither entered into an agreement, nor received any consideration, nor agreed to get the consent letters from neighbouring owners. The first defendant pleaded that there was no arrangement between her and the plaintiff and that rent payable for the suit property has to be paid by the tenant and there was no agreement to adjust the rent,
37. It is the further case of the first defendant that the first wife of Sikkandar Sahib, daughters who are alive are jointly entitled to the suit properties. The first defendant and three daughters are also co-sharers and the first defendant not being the full owner. The agreement, if any and even if it is held to be true, does not bind her daughters and she has no authority to enter into an agreement on behalf of her daughters as well as her co-widow.
38. The first defendant also put forward a plea of limitation besides denying the two agreements Exs. A. 2 and A. 6, while pleading that the plaintiff had secured signatures on blank papers from the first tenant for the purpose of adjustment of rents and the account. The second defendant who is a subsequent purchaser had merely denied the agreement and pleaded that she is a bona fide purchaser for valuable consideration without notice of the alleged agreement. The defendants 3 to 5 had been impleaded pending the suit. But as seen from the original plaint no amendment had been made after impleading the said defendants and there is no plea at all that the said defendants 3 to 5 are bound to convey the suit properties or as to how Exs.A. 1, A, 2 and A. 6 are binding on the said defendants.
39. It is well settled and also not in dispute that even assuming that a contract of sale has been entered by the first defendant, it cannot be enforced against the defendants 3 to 5 who are not parties and parties being Mohammedan the first defendant has no authority to enter into an agreement on behalf of the defendants 3 to 5. If at all the first defendant could convey her undivided interest and not more than that even if it is held that Exs. A. 1, A. 2 and A. 6are true.
40. In the light of the said plea of the first defendant when the plaintiff is not a signatory to the Ex. A. 1 sale agreement and when the sale agreement recital as well as the entire body of the agreement proceeds as if both the parties are to sign, of Ex. A. 1 not being signed by the plaintiff, it is too late in the day to contend that the plaintiff is entitled to specific performance of the agreement of sale Ex. A. 1.
41. It is well settled that specific performance of contract may be obtained by (i) any party to the agreement (ii) representative in interest or any member of any party thereto or assignee of the contract are entitled to sue on the contract. The plaintiff had not signed the agreement, nor anyone else had signed the agreement Ex. A. 1, on behalf of the plaintiff as his representative or agent or power of attorney. In the light of the denial and there being no admission, and the plaintiff not being a signatory to the agreement Ex. A. 1, it is too late for him to claim specific performance. Further, it is not as if the defendant in terms of the recital had addressed the terms of the plaintiff and bind herself to the stipulation, but being mutual Ex.A. 1 is not binding.
42. The contention that Ex. A. 1 need not be signed by the plaintiff and that mere absence of signature will not disable the plaintiff to get the agreement enforced cannot be sustained. Ex. A. 1 contract to sell, entered into is concluded by consensus ad idem which consensus ad idem, is signified by the parties affixing their respective signature. In the absence of such consensus ad idem by the plaintiff, in the absence of his signature or any other indication, Ex. A. 1 is not enforceable.
43. It is for the plaintiff to prove that there is a valid agreement to sell and purchase or there is a concluded contract between the plaintiff and the first defendant. The trial court had overlooked the facts that Ex. A. 1 had not been signed by the palintiff. The plaintiffs failure to affix his thumb impression, his signature indicate that he had accepted the terms of the stipulations and in the absence of his signature the plaintiff cannot establish a contract or he could validly enforce such a contract by seeking specific performance.
44. A contract for sale of immovable property is a contract that sale of suchproperty shall take place on terms settled between the parties. It may be that a contract of sale of immovable property need not be in writing. Yet, even in respect of such oral agreement the burden is on the party to prove that there is consensus ad idem between the parties for a concluded oral agreement of sale of immovable property. A contract to sell in the present case, if at all is binding on the first defendant alone and not on the other defendants namely defendants 3 to 5 who are not parties to the sale agreement. Further Ex. A. 1 proceeds as if the first defendant had agreed to convey the entire property including the land which would show that the plaintiffs intention and also taking advantage of the possession of the property in the hands of the plaintiffs wife, Ex. A. 1 had been created and signature of the first defendant had been secured on some stamp papers, which agreement is neither true nor mutual.
45. Ex.A. 2 is a letter dated 6-12-1980 written by the first defendant addressed to the plaintiff. The entire Ex. A. 2 is in the form of letter by the first defendant, Bibi Jan addressed to the plaintiff. As seen from Ex. A. 1 the vendor had described herself as Beejan Begum. Ex. A. 2 is a letter written by Beevi John wife of Abdul Wahab Sahib. It may be that after the death of Hafsar Begum the said Bibi Jan alias Hafsar Begum had married Abdul Wahab Sahib, but she had not changed her name. Nor in the plaint it has been set out that the first defendant had got an alias name as Bibi Jan. The letter has been written in English and in the long hand. It is dated 6th Dec. 1980, which is three years and eleven months after Ex. A. 1. While Ex. A. 1 would show that the sale consideration agreed to has been arrived at Rs. 42,500/, Ex. A. 2 proceeds as if the sale consideration agreed is Rs. 60,000/- and the balance to be paid being Rs. 20, 000/-.
46. According to Ex. A. 2 the sale has to be completed on or before 31-1-1981 and a sum of Rs 300/- had been paid on the date of Ex. A. 2. Ex. A. 2 had been signed by the plaintiff and below his signature, the word 'purchaser' had been written on the third sheet. There are two witnesses to Ex. A. 2 and the plaintiff had not chosen to examine the said two witnesses. There is difference in the alleged signatures of the first defendant i.e., between Ex. A. 1 and Ex. A. 2. Ex. A. 2is not a normal document which anyone could have written. It is neither an agreement, nor it is a letter. Nothing prevented the palintiff to get the endorsement on Ex. A. 1 itself. There is difference not only in the signature, but also in the stipulation and even with respect to the sale price.
47. Ex. A. 6 does not refer to Ex. A. 1 sale agreement, dated 13-1-1977, but it refers to the alleged agreement dated 7th Dec. 1980, Ex. A. 6 would show that on 29-7-1981 a sum of Rs. 6725/- has been received by the first defendant. The preamble portion of Ex. A. 6 would show that it is executed by Bibi Jan Begum. But it had been also signed by one Shajahan Begum and Shajan Begum. The date of the agreement referred to in Ex. A. 6 i.e.,7th Dec. 1980 not referred to either in Ex. A. 1 or in Ex. A. 2. In Ex. A. 2, dated 6-12-1980, the first defendant had acknowledged the payment of Rs. 13,000. The first of the payment being mortgage amount and the last of the payment is alleged to have been made on 7-12-1980. But there is nothing to show that any amount has been paid on 6-12-1980 or on 7-12-1981 and Ex. A. 6 also would show the payment of Rupees 6725/-. Therefore the entire recital of Ex. A.6 cannot be relied upon.
48. Further, Ex. A. 2 letter assuming to be true stipulates that the sale has to be completed on or before 31-1-1981 while Ex. A. 6 as seen from recital had been executed on 29-7-1981, This again will belie Ex.A. 2 and Ex. A.6. In the circumstances Mr. S. Raghavan, learned counsel for the appellant on the facts of the case is well justified in contending that Ex. A.2 and A.6 are brought up documents and they are not true documents. For the purpose of the suit Ex. A. 2 and A.6 had been created, the signatures were obtained from the first defendant under some pretext or other and as pleaded by the first defendant with reference to tenancy dealing. There are inherent defects in the three documents viz., Exs. A. 1, A. 2 and A.6 and these three documents cannot be held to be true, but at least the last two, it has to be held that they have been fabricated and it is a brought up agreement and they are not true documents. There is difference in the signatures between the three documents. The signature of the first defendant found in three documents are different and there is much variance which throws considerable doubt.
49. The trial Court had failed to consider the above materials viz. the contents of Exs. A. 1, A. 2 and A. 6 and it had proceeded on the assumption that they are true documents. The said findings of the trial court cannot be sustained. In the circumstances, this Court holds that Ex. A. 1, A.2 and A.6 are not true documents but fabricated and they are unenforceable.
50. Assuming that Ex. A. 1 is true, then again the plaintiff has to fail. In terms of Ex. A. 1, sale has to be completed after getting sanction from the appropriate authorities, besides getting consent letter from the neighbouring owners, no time has been stipulated in Ex. A. 1 for completion of sale, but within two months from the dale of getting the sanction from the competent authority the sale has to be completed. However, as seen from Ex. A.2, the parties have given a goby to the consent letter as well as the securing sanction of the competent authority, but had stipulated that the sale shall be completed on or before 31-1-981.
50-A. The said Ex. A.2 is dated 6-12-1980. Ex. A. 2 came into existence after 47 months after Ex. A. 1. Even as per the stipulations in Ex. A.2, also the sale had not been completed. The plaintiff had not paid the amount to the first defendant, nor the plaintiff had paid the balance of sale consideration, nor the plaintiff had called upon the first defendant to complete the sale. As already held Exs. A. 2 and A. 6 are brought up and fabricated documents.
51. It is to be pointed out that Ex.A.6 has also not been signed by the plaintiff. Even assuming that Ex.A.6 is true, having agreed to complete the sale by 31-1-1981 it is rather strange that the plaintiff had kept silent for seven more months while it is the understanding under Ex. A. 2 that the sale shall be completed on or before 31-1-1981. Thereafter, the first defendant had conveyed the suit property in favour of the second defendant on 26-12-1981 under Ex. B.2, Ex. B. 1 is the agreement dated 16-12-1981. On 5-1-1982 under Ex. B.3 a notice has been sent by the first defendant to the plaintiff.
52. On 9-4-1982 under Ex. B.4 the second defendant had sent a letter to the plaintiff immediately after his purchase. Thereafter only an interim reply was sent by the plaintiff. After Exs. B.3 and B.4 legal notices, the plaintiff had acknowledged thesaid notices under Ex. B.5 dated 30-4-1982. Excepting the interim reply, no reply has been caused by the plaintiff. Nor any demand has been made by the plaintiff. The present suit has been instituted only on 5-2-1983 i.e. several months after the first defendant conveying the suit property to the second defendant on 26-12-1981 under Ex. B.10 sale deed, Ex. 3. 2. The plaintiff obviously was not interested in proceeding with the alleged agreement to sell as he had advanced money on the mortgages and his wife is in occupation of the suit property as lessee and was only interested in continuing in possession. This is demonstrated by the very conduct of the plaintiff.
53. By his conduct and as seen from the document and oral evidence of P.W. 1 and P.W. 2, the plaintiff was never ready and willing to perform his part of the contract concluded under Ex. A.1. Alleged Ex. A. 2 came into being after three years and eleven months. Ex. A.6 came into force after the period stipulated in Ex. A.2 long after Ex. A.2. Even thereafter also the plaintiff had kept silent and when defendants 1 and 2 have called upon the plaintiff to surrender possession and the first defendant filed a suit for ejectment, the plaintiff thereafter instituted the suit after a lapse of ten months.
54. It is true that the plaintiff had deposited the balance of sale consideration which is the difference between sum as has been agreed to under Ex. A. 1 or under A. 2. The cumulative effect of the above would show that the plaintiff had not only failed to perform his part of the contract, but also fabricated the documents with ulterior objects after coming to know that the second defendant had purchased the property, caused notice and instituted the suit for ejectment. Hence it is clear that the plaintiff had either abandoned Ex. A. 1 or had been keeping silent as the plaintiff was absolutely satisfied with his possession and was interested only in getting the amount advanced if at all. Even the plaintiff had not taken steps to recover the amount due under the earlier mortgages. It is therefore, clear that the plaintiff had come to the Court with unclean hands and the plaintiff was never ready and willing to perform his part of the contract, nor he had called upon the first defendant within the period of limitation or the period stipulated under Ex. A. 1 or A. 2 or A.6 demanding the completion of sale transaction in his favour.
55. Ex. A.1 is dated 13-1-1977. Ex,A. 2 is dated 6-12-1980 and Ex. A.6 is dated 29-7-1981. Under Ex, A. 2 it was stipulated that the sale shall be completed before 31-1-1981. Even thereafter for seven months the plaintiff had kept silent and only on 29-7-1981 the alleged agreement Ex. A.6, came into force. Even Ex. A.6 has not been signed by the plaintiff. Nor the parties have agreed to extend the time with reference to Ex A. 1. Ex. A.6 recital refers to some other date or document or a different payment and there is inherent defect in the said documents. In that Ex. A, 6 had not been signed by the plaintiff and there is inconsistency between the three material exhibits, namely Exs. A. 1, A.2 and A.6. Even after Ex. A,6, the plaintiff had kept silent without calling upon the first defendant to complete the sale and only after the defendants 1 to 2 causing notice and take up action, the present suit has been filed on 5-2-1983.
56. The suit O.S, No. 60 of 1983 had been instituted on 5-2-1983 against the defendants 1 and 2. The defendants 3 to 5 were impleaded. But only after the expiry of 1986 and the defendants 3 to 5 were ordered to be impleaded on 25-2-1987. I.A. No. 330 of 1986 has been filed on 5-9-1986 i.e. after three years and 7 months from the date of institution of the suit O.S. No. 60 of 1983. As pointed out the defendants 3 to 5 were not parties to the agreement. There is nothing to show that the first defendant was authorised or empowered by the said defendants to enter into a binding agreement.
57. The defendants 3 to 5 though impleaded after several years from the date of the plaint, long after the expiry of the limitation period even reckoned from the date of plaint in O.S. No. 60 of 1983. Therefore, the suit claim assuming that the agreements viz. Exs. A. 1, A. 2 and A.5 binding on the defendants 3 to 5 it is unenforceable against the said defendants and it is barred by limitation. Apart from the fact that they are neither parties to any of the agreement or arrangement nor they could be compelled to execute the sale deed in favour of the plaintiff. The above conduct of the plaintiff would show that he was interested in continuing in possession as long as possible and there are no bona fides in the conduct of the plaintiff.
58. Had the plaintiff been particular in enforcing the terms of the agreement Ex..A. 1, the plaintiff woud have called upon the the first defendant and the other defendants either before Ex. A. 2 or before Ex.A.6 or before the time stipulated to in Ex. A. 2, which he had miserably failed, The trial Court had lost sight of these events and material dates and the omission on the part of the plaintiff and on a misconception of the above facts held that the plaintiff has been always ready and willing. This finding cannot be sustained as it is a clear misreading of the documentary evidence as well as oral evidence.
59. This Court was taken through the evidence of PWs. 1 and 2 and this Court is not convinced, nor it is persuaded to hold that they are speaking truth. The evidence of the said two witnesses examined on the part of the plaintiff, is not acceptable and they are not speaking truth, nor they can explain their conduct and the delay. Hence it is clear that the plaintiff was not ready and willing to perform his part of the contract. Even if the plaintiff had secured rights if any under Ex. A. 1, the plaintiff is not entitled to the specific performance of the alleged agreements Exs. A.1, A.2 and A.6.
60. Further admittedly defendants 3 to 5 were not parties to Exs. A. 1, A.2 and A. 6 and the agreement is unenforceable against the defendants 3 to 5. The defendants 3 to 5 have been impleaded several years after Ex.A.1, Ex. A. 2 and Ex.A. 6. Interlocutory Application to implead defendants 3 to 5 have been taken out only on 5-9-1986 when Ex. A. 1 is dated 13-1-1977 and Ex. A. 2 is dated 6-12-1980 and Ex. A6 is dated 29-7-1981. The said dates makes it clear that the plaintiff who is well aware of the rights of the defendants 3 to 5 cannot seek the relief of specific performance even against the said defendants.
61. As regards the plea of limitation Mr. S. Raghavan, learned counsel for the appellant is well justified in contending that the suit claim is barred by limitation. The dates set out would show, that the suit claim under Ex. A. 1 is barred by limitation. The plaintiff apart from being not ready and willing to perform his part of the contract and the plaintiff was interested only in continuing in possession as the suit property is in occupation of the plaintiffs wife as a lessee. On a careful consideration of the dates referred above it is clear that, the suit claim is barred by limitation and the point isanswered against the plaintiff.
62. An incidental contention was advanced by Mr. S. Raghavan, learned counsel for the appellant that though the defendants 3 to 5 had been impleaded on an application taken out by the plaintiff, the same had not been carried out in the original plaint. On a verification this Court finds that the same is factually correct. However, Mr. T.V. Ramanujam, learned senior counsel for the respondents contended that the amended copy of the plaint had been filed which would show that the amendment had been carried out.
63. It is not known as to how without amending the plaint, the three persons have been shown as defendants 3 to 5. The failure to amend the plaint even after allowing of application to implead the defendants 3 to 5 is fatal. Further there is extraordinary delay in taking out the application to implead the defendants 3 to 5 and therefore it is unnecessary to go into that aspect of the matter as no relief could be claimed against the defendants 3 to 5 even assuming that they been validly impleaded and assuming that amendment had been carried out.
64. On a verification of the original plaint, it is clear, that the amendment had not been carried out. Much could be said against the plaintiff. It is therefore, clear that no relief could be granted against the defendants 3 to 5, nor the plaintiff could enforce the agreement against them, nor the agreement alleged to have been entered is enforceable by the plaintiff even against the first defendant, much less against the defendants 3 to 5.
65. On a careful consideration of the above material documents and evidence, this Court holds that the suit claim is barred by limitation. The alleged agreement Exs. A.2 and A.6 are not true and they are fabricated and therefore the plaintiff is not entitled to seek for enforcement.
66. The plaintiff had been never ready and willing to perform his part of the contract and he is deemed to have abandoned his right and that is the reason he has fabricated Exs. A.1, and A.2 and A.6. The failure to carry out the amendment even construing it as an inadvertent omission, it will not in any manner come to the rescue of the plaintiff as the very impleading of defendants 3 to 5 is long after the expiry of limitation period and several years afterfiling of the suit itself. The specific performance agreement Ex. A. 1 is not enforceable not only as against the first defendant but also against the other defendants. The point No. 3 is answered against the plaintiff.
67. The first defendant without independent advice had been subjected to very unfair or transfer the property for a consideration which is grossly inadequate when her bargaining power is grievously impaired by the reason of her own needs or desires or by her own Ignorance or indigent circumstances, coupled with the undue influence or pressures brought to bear on her by or for the benefit of other parties.
68. On the facts of the case on point No. 5, this Court holds that the plaintiff who was not ready and who had approached the Court with unclean hands, who had instituted the suit belatedly and who was only interested in persisting his occupation is not entitled to the relief of specific performance. Further, the first defendant is only entitled to a share while the other defendants are entitled to the larger extent. The plaintiff being aware of it had not elected to seek for performance of part of the first defendant's share, but had sought for specific performance of the sale of the entire suit house. Nowhere it has been pleaded that the plaintiff is ready and willing to accept a part of performance or as to what the first defendant could validly convey.
69. In fact the plaintiff filed cross objections claiming that the plaintiff is entitled to specific performance not only against the plaintiff and defendants 3 to 5, but also against the defendant No. 6 against whom the suit has been dismissed. Even thereafter the plaintiff was persisting in seeking the specific performance of the agreement against all the defendants including the 5th defendant by filing a cross objection. At the time of hearing the plaintiffs did not press the cross objections, but came out with a fresh proposal that the plaintiff will be satisfied by filing a memo that the plaintiff will be entitled to sale of 9/12th share in the suit property. This cannot be permitted as such an election at a belated stage cannot be permitted.
70. It may be that even at the final stage election is permissible as has been held by the Supreme Court in a recent pronouncement. But on the facts of the present case the plaintiff cannot be permitted at the fagend when the hearing of this appeal is being concluded set out his election. Therefore the election by the plaintiff at the last stage of the appeal cannot also be accepted as bona fide. Hence the plaintiff is not entitled to the relief of specific performance in the present suit nor the plaintiff could be allowed to elect at the belated stage of the hearing of the first appeal, which appeal has been pending for over twelve years and consciously the plaintiff had also filed a cross objection. The cross objector is not entitled to any relief as the counsel for the other side had to concede that there is no merits in the cross objections and the cross objection deserves to be rejected in the light of the fair statement made by the counsel for the cross objector. Consequently the cross objection is dismissed.
71. Taking up the next contention that the suit claim is barred by res judicata, Mr. T. V. Ramanujam, learned senior counsel appearing for the plaintiff-contesting respondent contended that the present suit is barred by res judicata as the appellant had allowed the decree in O.S. No. 47 of 1984 to become final. It is true that O.S. No. 47 of 1984 instituted by the second defendant for ejectment, and it had been dismissed by the trial Court consequent to the suit O.S. No. 50 of 1983 being decreed. It is also pointed out by Mr. S. Raghavan, learned counsel that as against the dismissal of the said suit the second defendant had preferred an appeal but the appeal admittedly had not been prosecuted. In order words, the dismissal of the suit O.S. No. 47 of 1984 though it has been Instituted earlier in point of time, had been allowed to become final.
72. The only point that arose for consideration in the said suit is whether the plaintiff Pushpa Bai who is the second defendant in the suit for specific performance is entitled for recovery of possession and ejectment against the defendants 1 and 2 in the said suit suit O.S. No. 47 of 1984. The dismissal of the suit O.S. No. 47 of 1984 in my considered view will not constitute res judicata while going into the merits of the present appeal seeking the relief of specific performance. It is unnecessary to refer to various pronouncements relied upon by either side in support of their respective contentions.
73. What was in issue in O.S. No. 47 of 1984 is the recovery of possession based upon the sale deed. The trial Court held thatthe defendants are bound to convey the suit property in favour of the plaintiff in O.S. No. 60 of 1983. The issue whether the plaintiff in the suit for specific performance is entitled for a decree of specific performance and the connected issues have to be confined to the said suit alone and those issues or findings in the said suit will not constitute res judicata.
74. That apart, the findings recorded by the trial Court on all material issues in O.S. No. 60 of 1983 had been set aside by this Court. When the findings of the trial Court are set aside, the dismissal of the suit O.S. No. 47 of 1984 Instituted by the second defendant in O.S. No. 60 of 1983 will not constitute res judicata and the present appeal could not be gone into on merits. The plea of res judicata advanced by Mr. T.V. Ramanujam, learned senior counsel for the plaintiff cannot be sustained. However, as the defendants had not preferred any appeal against the judgment in O.S. No. 47 of 1984, this Court is not in a position to grant any relief. Even, if the suit instituted by the plaintiff Dr. Williams, is dismissed, the position will be anamalous. The plaintiff had lost his suit for ejectment. As regards the mortgage or recovery or redemption, less said is the better for either parties have not agitated and as they are not the subject matter of the present suit.
75. While pointing out the above conduct of the plaintiff party and the financial position of the first defendant and her filing a written statement and thereafter disowning the same which evidence also cannot be accepted as she had not submitted herself for cross examination, this Court suggested to both the parties to amicably negotiate between themselves and settle. Though the counsel for the parties took time twice, ultimately they reported that they could not persuade the parties to settle.
76. This is an unfortunate situation which both sides have created. But on that score, this Court would not be justified in taking a different view. In the fitness of things both the parties should realise the legal and factual position and arrive at a fair settlement when both the contesting parties were interested in exploiting the first defendant and her family condition, besides her illiteracy and helplessness. The evidence of D.Ws. Is also not satisfactory and it is not necessary to go into the aspect, as well plea that the second defendant is a bona fidepurchaser without notice. In the light of the above findings, and the evidence of PWs. 1 and 2 being thoroughly unsatisfactory, the plaintiff has to necessarily fail.
77. Though the counsel on either side had referred to number of judgments in support of their contentions it is not necessary to refer to those pronouncements as on facts, this Court had decided and recorded findings on the above point and it is not necessary to refer to the various pronouncements relied on by either side in support of their respective contentions.
78. In the result the appeal A.S. No. 1065 of 1983 is allowed with costs. The judgment and decree in O.S. No. 60 of 1983 on the file of the Sub-Court, Tivuvellore dated 8th April, 1988 are set aside and the said suit O.S. No. 60 of 1983 shall stand dismissed with costs.