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S.P. MUTHUSAMY versus V. THAYAMMAL

High Court of Madras

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S.P. Muthusamy v. V. Thayammal - A.S. No.23 of 1988 [2002] RD-TN 439 (5 July 2002)



IN THE HIGH COURT OF JUDICATURE AT MADRAS



Dated: 05/07/2002

Coram

THE HONOURABLE MR. JUSTICE P. SHANMUGAM

A.S. No.23 of 1988

S.P. Muthusamy .. Appellant vs.

1. V. Thayammal

2. A. Balasubramaniam

3. P.G. Vijayalakshmi

4. Pappammal

5. A. Palanisamy

6. P. Vimala

7. Dr. N. Venkatachalam

8. R. Kamalammal

9. M. Balasubramaniam

10. G. Geeva

11. M. Duraisamy

12. Palanisamy Gounder

13. Kuppathal

14. G. Duraisamy

15. Velusamy

16. Muthuvel

17. Neelamegam

18. Sundaramurthy

19. A. Suseela

20. Subbaraya Gounder

21. R. Santhamani

22. P. Subbaraya Gounder

23. Sundarambal

24. M/s. Tirupur Fulchand & Sons,

52/B-4, P.N. Salai,

Tirupur-2.

25. V. Palanisamy

(R-25 brought on record as

L.R. of the deceased R-1

vide court order dated

4.12.2000 in CMP No.2475/93) .. Respondents PRAYER : Appeal against the Judgment and Decree of the III Additional

Subordinate Judge, Coimbatore dated 14.12.1987 made in O.S. No.346 of 1986. For Appellant : Mr. R. Sekar for

M/s. Sarvabhauman Associates.

Respondents : Mr. K. Chandramouli, Sr. Counsel for Mr. K. Rakhmathan

(For R-5 to R-10)

Mr. K. Ravichandra Babu

(For R-1 to R-25)

:J U D G M E N T



Plaintiff is the appellant. The suit for specific performance to execute a gift deed as per the agreement dated 16.2.1977 was dismissed by the Subcourt, Coimbatore and the present appeal is against this judgment.

2. The facts of the case are as follows : The plaintiff claimed that he was a close and intimate friend and the confidential adviser of the first defendant's father Late Palanisamy Gounder, who owned large extent of properties. The first defendant's was living with her father Palanisamy Gounder. According to the plaintiff, in view of his close association with the first defendant' s father and at her request, he influenced the mind of the first defendant's father and got a will dated 27.11.1967 executed by him, bequeathing almost all his properties in favour of the first defendant. The plaintiff helped the first defendant in the suit filed by one P.K. Palanisamy for specific performance. According to him, he also helped her when a dispute about the will of her father was raised. In recognition of the plaintiff's assistance and support, the first defendant promised to convey, by means of gift, an extent of three acres of land and executed a letter of agreement dated 16.2.1977. However, she did not execute the gift deed inspite of several repeated demands, and on the contrary, she alienated certain portions of the land promised to be conveyed to him, both prior to and subsequent to the suit and hence, the above suit was filed. The first defendant opposed the relief and denied any such assistance pleaded by the plaintiff in her favour. She denied of having executed any agreement as alleged. She also pleaded that the plaintiff would have utilised blank papers obtained from her when certain litigations were pending, in the guise of preparing affidavits. On these pleadings, nine issues were framed and after a detailed examination of the matter, the learned Judge found that the agreement dated 16.2.1977 in favour of the plaintiff is true. However, the learned Judge held that the agreement is opposed to public policy inasmuch as the gift deed was agreed to be given for assisting the first defendant to obtain a will in her favour and to defend the case unlawfully. The learned Judge also found that the plaintiff cannot seek for specific performance of such an agreement. It was also found that the alienations made in favour of defendants 2 to 12 were valid and that they were bonafide purchasers of the properties. The appeal is against this judgment.

3. Learned counsel appearing on behalf of the appellant submitted that the trial court having found that the agreement is true and genuine, ought to have decreed the suit. According to him, in the absence of any pleading that the agreement is opposed to public policy, the court below erroneously held so, that this amounts to a special pleading on behalf of the defendant and that the trial court failed to consider the valuable services rendered by the plaintiff and in lieu of the same, as a consideration, the first defendant agreed to convey the property. According to him, the conclusion of the learned Judge that the assistance of the plaintiff is motivated and therefore it is hit by Section 23 of the Indian Contract Act on the vice of inducement is erroneous. The learned Judge, having found that the appellant had helped the first defendant to lay out the land belonging to her, the expression of the word 'gift' used in Ex.A.20 is merely a nomenclature for a transaction that has to be taken and therefore, it will not make the agreement is one without consideration.

4. The respondents, besides supporting the findings of the learned Subordinate Judge, contended that the suit prayer as such is not maintainable and that the judgment and the finding does not require any interference except reiteration of the same.

5. Before I go into the factual aspect of the matter and the findings of the court below, I feel that the appeal can be disposed of on the legal question itself. The prayer in the plaint in the suit is as follows :- "The plaintiff therefore prays that this Hon'ble Court may be pleased to grant a decree :

(i) directing the 1st defendant to execute a gift deed as per the agreement dt.16.2.77, and get the same registered at her expenses; (ii) on her failure, to execute the document within a time to be specified, then the court may be pleased to execute a gift deed in respect of three acres of land from the suit properties;

(iii) directing the 1st defendant to demarcate and deliver possession of the three acres of land gifted to the plaintiff within a specified period; (iv) directing the 1st defendant or such of them who may be found liable to pay the costs of the suit to the plaintiff; and (v) for such other and further reliefs as may be deemed just and necessary in the circumstances of the case."

6. The plaintiff has categorically stated in the plaint as follows : "The first defendant promised to convey by means of a gift, an extent of three acres of land in T.S. Nos.442 and 443 of Thottipalayam Village, Tiruppur Town." Again, it is stated in paragraph 7, "The first defendant executed a letter of agreement on 16.2.1977 whereunder she assured to gift an extent of three acres of land"; and again, in paragraph 9, it is stated, "she did not execute the gift deed pursuant to the letter of agreement dated 16.2.1977 inspite of several and repeated demands personally and through her son. On the other hand, in contravention of the agreement, the first defendant, in the course of a couple of months, sold certain portions of the land agreed to be gifted to the plaintiff in favour of defendants 2 to 4. He further says as follows :

"So, the plaintiff sent a registered lawyer's notice dated 30.4.1985 to the first defendant calling upon her to fulfill the assurances and promises and to execute the gift deed."

In the cause of action paragraph also, it is stated that the agreement assured a gift deed to be executed. Therefore, from the pleadings and the prayer, it is clear that the plaintiff wants a gift deed to be executed.

7. "Gift" has been defined under Section 122 of the Transfer of Property Act as the transfer of certain existing movable or immovable property made voluntarily and without consideration by one person called the donor to another called the donee and accepted by or on behalf of the donee. As per this definition, the gift could be made only voluntarily and without consideration. The appellant, in his plaint, has categorically stated that he seeks for a direction and decree to the first respondent to execute a gift deed. He further says that the agreement was made in consideration of his alleged assistance to the first defendant.

8. Section 20 of the Specific Relief Act, 1963 says that the jurisdiction of a civil court to grant a decree for specific performance is discretionary and the discretion of the court has to be exercised on a sound and reasonable principle. Sub-section 20(a) says that a decree for specific performance cannot be granted if the contract or the conduct of the parties or the other circumstances under which the contract was entered into are such that the contract, though not voidable, gives the plaintiff an unfair advantage over the defendant and that under the circumstances, though the contract cannot be rendered voidable, makes it inequitable to enforce the specific performance. It has been well settled that if the court is satisfied that there has been an illegality, it is bound to take the point of its own notion. In such a case, it must apply the over-riding basic principle of public policy and the court should not assist a plaintiff by enforcing an illegal contract. If the illegality is disclosed, the court must take notice of it although it is not pleaded. In STATE OF PUNJAB VS. AMAR SINGH (A.I.R. 1974 S.C. 994), it was held that by an agreement, parties cannot be achieve what is contrary to law and a decree merely based on such agreement cannot furnish a judicial amulet against statutory violation. In UNION CARBIDE CORPORATION VS. UNION OF INDIA (A.I.R. 1992 S.C. 248), their lordships held that the validity and durability of a consent order are wholly dependent on the legal validity of the agreement on which it rests. Such an order is amenable to be set aside on any ground which would justify the setting aside of the agreement itself and these principles are unexceptionable. Therefore, the argument of the counsel for the appellant that there was a special pleading by the learned Judge in holding that the agreement is opposed to public policy cannot be accepted. As stated earlier, gift cannot be obtained by compulsion through a decree of a court and it can only be obtained without consideration. An enforcement of such a gift will be clearly contravening Section 122 of the Transfer of Property Act. The definition of 'Gift' says that it should be without any consideration. Section 23 of the Indian Contract Act says that the consideration of an agreement is lawful unless the court regards it as opposed to public policy. Therefore, it is open to the court to consider whether the consideration is lawful and is not opposed to public policy. The relief of specific performance being discretionary, the court is always entitled to consider whether the contract is fair and is equitable before seeking to enforce the agreement. Thus, looked at from any angle, I find that the appellant cannot enforce the agreement to compel the first respondent to execute a gift.

9. The argument of the learned counsel for the appellant that though the terminology used in the agreement is gift, the court can mould the relief to direct the conveyance in favour of the appellant. The said argument is totally unacceptable. The court cannot modify the terms of the contract. As per the terms of Ex.A.20, it is seen that what the parties intended is only execution of a gift deed and not any other document and the plaint categorically and clearly proceeds that the first defendant agreed to execute a gift deed in favour of the plaintiff and therefore, there is absolutely no scope to grant the specific performance of such an agreement, and the finding of the court below that the agreement is opposed to public policy is correct and calls for no interference in the facts and circumstances of the case.

10. It is rightly pointed out that in case where the plaintiff himself accepted the alienation of the properties in favour of defendants 2 to 24 prior to and pending the suit, the plaintiff ought to have sought for a direction to those respondents to execute the sale deed. In this case, no such relief had been sought for. On this ground also, the suit is liable to be dismissed.

11. For all the above reasons, the appeal is liable to be dismissed and is accordingly dismissed with costs.

Index : Yes 05..07..2002 Internet : Yes

ab

To

1. The III Additional Subordinate Judge,

Coimbatore (with records).

2. The Record Keeper,

V.R. Section,

High Court, Chennai.

P. SHANMUGAM, J.

Judgment in

A.S. No.23 of 1988




Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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