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DURAISAMY versus N.ETHIRAJULU

High Court of Madras

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Duraisamy v. N.Ethirajulu - A.S.No.737 of 1986 and A.S. No.369 of 2002 [2002] RD-TN 913 (25 November 2002)



IN THE HIGH COURT OF JUDICATURE AT MADRAS



DATED: 25-11-2002

CORAM

THE HONOURABLE MR.JUSTICE P.SHANMUGAM

AND

THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM

A.S.No.737 of 1986 and A.S. No.369 of 2002

A.S.No.737/86:

1. Duraisamy

2. Lakshmanan

3. Venkatesh .. Appellants -Vs-

1. N.Ethirajulu

2. N.Gopal

3. Janaki

4. Mohanambal

5. Santhi

6. R.Jagannathan

7. Jayakannan

8. B.Ramalingam

9. Sarasu

10.S.Perumal Naidu .. Respondents A.S.No.369/02:

1. N.Lakshmanan

2. N.Venkatesan .. Appellants vs

1. Ethirajulu

2. N.Gopal

3. N.Doraiswami

4. R.Jaganathan

5. P.Ramalingam

6. S.Jayakkannan

7. C.Veluswami Naidu .. Respondents These appeal suits have been preferred under S.96 of The Code of Civil Procedure against the common judgment and decree of the II Additional Subordinate Judge, Erode, dated 31.1.1986 and made in O.S.No.40/8 1. For Appellants : Mr.V.K.Muthusamy

Senior Counsel

for Mr.P.Pandi

For Respondents : Mr.S.Parthasarathy

for Mr. V.K.Nachimuthu

for RR1 & 2

Mr.M.V.Venkataseshan

for Mr.S.V.Ramesh for RR3 to 5

No appearance - RR6 to 9

RR7 & 10 given up

:COMMON JUDGMENT



M.CHOCKALINGAM, J.

Defendants 1 to 3 in O.S.No.40 of 1981 and plaintiffs in O.S.No.1286 of 1980 are the appellants herein.

2. Both the appeals have been filed against the common judgment and decree passed by the learned II Additional Subordinate Judge, Erode in the said suits.

3. The plaintiffs in O.S.40/81 have alleged in their plaint as follows:

Item 1 of the plaint schedule properties originally belonged to A.S.Abbai Naidu, from whom Thirumalai Ammal, wife of Nainar Chettiar purchased the same on 5.3.64 under a registered sale deed for a consideration of Rs.2,500/-. She was in exclusive possession and enjoyment of the said property until she died on or about 8.1.68. On her death, the plaintiffs and the defendants 1 to 6 who are her children, are each entitled to 1/8th undivided share. The plaintiffs together are entitled to 1/4th share. Item 2 of the plaint schedule properties originally belonged to Venkataperumal Naidu, senior paternal uncle of the plaintiffs and the defendants 1 to 6. He executed a registered Will bequeathing item 2 to Thirumalai Ammal to be enjoyed by her without any power of alienation or encumbrance till her life time and the remainder to vest absolutely in favour of her sons. Venkataperumal Naidu died on 21.8.61. She got possession of item 2 and was enjoying the same till she died on 8.1.68. The plaintiffs and the defendants 1 to 3 became absolutely entitled to item 2. As the plaintiffs and the defendants 1 to 3 are residing at different places, by consent the first defendant was allowed to collect the rents from the tenants and was directed to distribute the rents so far as item 2 is concerned among the plaintiffs and the defendants 1 to 3 and so far as item 3 is concerned, to distribute it among the plaintiffs and defendants 1 to 6 . But the first defendant appropriated the entire income without equally distributing the rent among the sharers. The plaintiffs were demanding defendants 1 to 6 for division of the suit properties. The defendants 4 to 6 were amenable for partition of item 1, while the defendants 1 to 3 were not amenable for partition of the suit properties. The first defendant brought forth some henchmen as Panchayatdars for settling the dispute among them. There was no agreement for panchayat nor was there any award in writing. At the instigation of the first defendant, the defendants 2 and 3 issued a notice calling upon the plaintiffs to execute release deeds relinquishing their rights over item 2. The defendants 2 and 3 also filed a suit in O.S.1286/80 on the basis of the oral award and agreement to execute a release deed. The plaintiffs did not execute any agreement. They did not agree to relinquish their right, title and interest in item 2 in favour of the defendants 2 and 3. The alleged award or decision and the agreement are all void ab initio and cannot be enforced. Hence this suit.

4. The first defendant in O.S.40/81 has filed a written statement with the following averments:

Item 1 of the suit property belonged to him. It is the first defendant who purchased the said property from Abbai Naidu under a registered sale deed for Rs.2,500/- in the name of his mother benami for him. He paid the entire purchase money, since Thirumalai Ammal had no sufficient funds. She did not pay the sale consideration. The said transaction is a benami transaction. Even though the document stands in the name of his mother, item 1 has been in his exclusive control, possession and enjoyment since 5.3.64. He has been exercising absolute right over the said item. He has been paying the municipal tax, etc. The plaintiffs and the defendants 2 and 3 were never in possession and enjoyment of item 1. He, as owner of item 1, let out the same to the 11th defendant and has been collecting rent from him, and hence, the question of distribution of rents did not arise at all. The plaintiffs and the defendants 2 to 6 have no right in item 1. They are not entitled to the relief of partition in respect of item 1. At the instance of the plaintiffs and defendants 1 to 3, a panchayat was convened on 13.7.1980, wherein the parties entered into a written agreement, and the value of item 2 was estimated at Rs.50,000/-. It was also agreed that the defendants 2 and 3 should take that property, and in lieu of the same, they should pay Rs.7,400/- to the plaintiffs and the first defendant each before the end of Iypasi last in the year 1980, besides Rs.13,000/- to the first defendant for the discharge of the family debts. Pursuant thereto, the plaintiffs and the first defendant have to execute necessary release deeds in respect of their rights over item 2 in favour of the defendants 2 and 3. If the defendants failed to perform their part of obligation under the agreement, the plaintiffs were entitled to get the release deed from the defendants 1 to 3 after payment of the similar amounts to them. The first defendant received Rs.13,000/- from the defendants 2 and 3 towards discharge of family debts and also a sum of Rs.7,400/- being his share of the amount covered under the agreement, and he executed a registered release deed on 11.11.80 in favour of the defendants 2 and 3. He also delivered item 2 to the defendants 2 and 3, and they were in possession and enjoyment of the same. Hence, it is only the defendants 2 and 3 who are answerable in respect of item 2. Since the plaintiffs have failed to perform their part of obligation under the agreement, the defendants 2 and 3 were driven to the necessity of seeking redress in a court of law, and hence, they filed a suit in O.S.1286/80. Contrary to the terms of agreement, the plaintiffs are not entitled to claim relief of partition in item 2 also. The plaintiffs were never in possession of item 2. The plaintiffs are bound to execute the release deeds. They are not in joint possession. Hence, the suit is liable to be dismissed with costs.

5. The defendants 2 and 3 in O.S.40/81 have filed a written statement with the following allegations:

The sale consideration in respect of item 1 was paid by the first defendant. The said sale was a benami transaction. Only the first defendant has been paying the municipal tax and collecting rent from item 1. The plaintiffs and the defendants 1 to 3 in consultation with panchayatdars viz. M.Kuppumuthu Raju, P.V.Gopalsamy Rowth, K.N.Deva Naidu, K.R.Arumugham and K.Veerasamy, entered into a written agreement on 13.7.80. According to the said agreement, the value of the 2nd item of suit property was fixed at Rs.50,000/-. It was also agreed that the defendants 2 and 3 had to pay Rs.13,000/- to the first defendant for paying the family debts and also Rs.7,400/- to the plaintiffs and the first defendant each before the end of last Iypasi and both the plaintiffs and the first defendant to execute release deeds in favour of the defendants 2 and 3. The defendants 2 and 3 were ready and willing to perform their part of the contract, and they expressed their willingness to the panchayatdars, who wrote two letters to the plaintiffs on 8.9.80 and 21.10.80 to come and receive the money and execute necessary release deeds in favour of the defendants 2 and 3. In spite of that, the plaintiffs refused to act as per the agreement. A registered notice was sent by the defendants 2 and 3 on 7.11.80 to the plaintiffs. The first defendant on receipt of Rs.13,000/- and Rs.7,400/- executed a registered release deed on 11.11.80 in favour of the defendants 2 and 3. Suppressing all these facts, the plaintiffs have filed this suit. The defendants 2 and 3 have filed a suit for specific performance against the plaintiffs. The defendants 2 and 3 are in possession of the 2nd item of the suit property absolutely from 11.11.1980. The doctrine of part performance as enunciated in S.53A of the Transfer of Property Act debars the plaintiffs from claiming any right in respect of item 2. Therefore, the suit has to be dismissed with costs.

6. In their written statement, the defendants 7 to 11 have stated that the defendants 7 to 10 are residing at item 2 of the suit property, while 11th defendant is residing at item 1; that there is no contractual relationship of landlord and tenant between them on one hand and the plaintiffs and the defendants 2 to 6 on the other hand; that from 11.11.80, the defendants 2 and 3 are collecting rents from the defendants 7 to 10, while the 11th defendant is regularly paying the rent to the first defendant, and therefore, the suit has to be dismissed.

7. The first defendant filed an additional written statement contending that from 5.3.64 onwards he is in open, continuous, hostile, uninterrupted possession and enjoyment of item 1 of the suit property to the knowledge of his mother since deceased and after her death, to the knowledge of his brothers and sisters for over the statutory period of 12 years; and hence, he has perfected title to this item by adverse possession and also by ouster; that his mother died on 8.1.69, and the suit having been filed on 12.1.81 is barred by limitation.

8. The plaintiffs in their reply statement have stated that it is denied that the plaintiffs were ousted. It is also denied that the first defendant had perfected title by adverse possession. The conduct of the first defendant manifestly shows his admission of title to item 1 of the suit properties in favour of the plaintiffs. The alleged benami transaction is denied.

9. The case of the plaintiffs in O.S.No.1286/80 is as follows: One N.Venkata Perumal Naidu executed a registered Will on 29.1.1959 bequeathing the suit property to Thirumalai Ammal for her life time, and after her death, the property should go to her five sons. He died on 21.8.61, and Thirumalai Ammal was in possession and enjoyment of the same till her death on 8.1.1969. After her death, her five sons got the property and leased out the same to the tenants viz. the defendants 4 to 7. On 13.7.80, a panchayat was held, wherein a written agreement was entered into between the parties. According to the said agreement, the plaintiffs have to pay Rs.13,000/- to the 3rd defendant for paying the family debts and pay Rs.7,400/- to the defendants 1 to 3 before the end of Iypasi and the defendants 1 to 3 to execute necessary release deeds in favour of the plaintiffs. As per the agreement, if the plaintiffs failed to perform their part of the agreement, the defendants 1 and 2 are entitled to get the release deeds from the plaintiffs and the third defendant after payment of similar amounts to them. The plaintiffs were ready and willing from September 198 0 to perform their part of the contract. Two letters were written by the panchayatars on 8.9.80 and 21.10.80 to the defendants 1 and 2. A notice was sent on 7.11.80 to the defendants 1 and 2. The second defendant though received the notice, has kept quiet. Hence this suit.

10. In their written statement, the defendants 1 and 2 have averred that the suit property originally belonged to Venkataperumal Naidu, who executed a Will bequeathing the property to Thirumalai Ammal for life, and after her life time, to her five sons. The third defendant has been collecting the rent from the property and has not been sharing the same among his brothers. No panchayat was constituted. Likewise, no agreement was entered into between the parties. Hence, the suit is liable to be dismissed with costs.

11. The third defendant filed a written statement stating that he has complied with and fulfilled the terms of the agreement, and thus, the dispute remains with the plaintiffs and the defendants 1 and 2, and hence, he has no objection for granting the relief as prayed for in the suit.

12. On the above pleadings, the trial Court framed necessary issues, tried the suits, granted a preliminary decree in O.S.40/81 and dismissed the suit in O.S.1286/81. The aggrieved defendants have brought forth both the appeals.

13. The points that would arise for consideration in both the appeals are:

1) Whether the plaintiffs in O.S.No.40/81 are entitled for the division of the suit properties as asked for?

2) Whether the plaintiffs in O.S.1286/80 are entitled to get the relief of specific performance, as asked for?

14. As stated above, both these appeals have arisen form a common judgment rendered by the learned Subordinate Judge, Erode, wherein a preliminary decree for partition was granted in O.S.No.40/81 filed by the respondents 1 and 2, while the suit in O.S.No.1286/80 filed by the appellants 2 and 3 for specific performance in respect of the 2nd item of the suit property in O.S.No.40/81.

15. For the sake of convenience, the parties will be hereinafter referred to as plaintiffs and defendants as per the cause title in O.S. No.40 of 1981.

16. The learned Counsel appearing for the appellants would submit that the important aspects viz. the source of purchase money, possession of original documents, subsequent possession of the property and the intention of the parties were not considered by the lower court; that the plaintiffs neither pleaded nor proved that their mother possessed sufficient funds; that there is nothing wrong in the first defendant purchasing the property benami in the name of his mother out of respect and love; that the first defendant has proved that he had paid the consideration; that the first defendant has been in possession and enjoyment of the property purchased in the name of his mother; that the mother did not advance any claim to the first item of the suit property during her life time; that the first defendant has prescribed title to the first item of property, and the suit is barred by limitation; that the trial court ought to have upheld the family arrangement and the agreement between the parties as evidenced by Ex.B4; that the agreement has been proved by sufficient evidence; that the parties have voluntarily entered into an agreement in the presence of panchayatars and they settled their disputes by a family arrangement; that there are no reasons to disbelieve the disinterested evidence adduced on the side of the defence; that it is not a case where the disputes were referred to the panchayatars and an award was passed by them; that the disputes were settled with the help of panchayatars, and the parties came to an amicable settlement with their help; that time is not considered to be the essence of contract in an agreement of sale of immovable properties; that it is clear from the evidence that the agreement was acted upon by the first defendant; that there was no necessity to produce the evidence for the sum of Rs.13,000/- as it was agreed by the parties; that the reasons set out by the lower court for decreeing the suit are not sustainable; that the defendants 2 and 3 were always ready and willing to perform their part of the contract; that the lower court without appreciation of the evidence has dismissed the suit filed by the defendants 2 and 3; that the reasons given by the trial court for rejecting the case of the defendants 2 and 3 are not sustainable in law, and hence, both the appeals have got to be allowed.

17. The learned Counsel appearing for the contesting respondents would argue that after careful consideration of the evidence, both oral and documentary, the trial court has decreed the suit; that the plaintiffs adduced sufficient and acceptable evidence with regard to partition of the suit properties; that there was no panchayat as alleged by the defendants 2 and 3; that no agreement was entered into between the parties; that the defendants 2 and 3 failed to prove their case in reference to the suit properties; that the suit filed by the defendants 2 and 3 for specific performance has no basis at all; that the alleged panchayatars are henchmen and partisans of the first defendant; that it is pertinent to note that even assuming that there was an agreement, the same is void and cannot be enforceable; that the trial court was perfectly correct in decreeing the suit filed by the plaintiffs and dismissing the suit filed by the defendants 2 and 3, and thus, both the appeals have got to be dismissed.

18. Admittedly, the plaintiffs and the defendants 1 to 3 are the sons and the defendants 3 to 6 are the daughters of Thirumalai Ammal, the wife of Nainar Chettiar. The first item of the plaint schedule property viz. the house property situate in door No.81, Valayakkara Street, Erode originally belonged to Abbai Naidu, who conveyed the same in favour of Thirumalai Ammal, under Ex.B23. Item 2 of the suit property belonged to Venkataperumal Naidu, the senior paternal uncle of the plaintiffs and the defendants 1 to 6. He executed a registered Will bequeathing life interest to Thirumalai Ammal and the reminder to vest absolutely in favour of the sons of Thirumalai Ammal viz. the plaintiffs and the defendants 1 to 3. Venkataperumal Naidu died on 21.8 .61. Thereafter, the Will came into force.

19. The plaintiffs have sought for partition claiming 1/4th share in the first item of property, since the plaintiffs and the defendants 1 to 6 each were entitled to an undivided 1/8th share, and have claimed 2/5th share in the second item of suit property, since the sons of Thirumalai Ammal were vested absolutely the said property under the Will. The prime defence that was raised by the contesting defendants was that the first item of the suit property was purchased by the first defendant from Abbai Naidu under a registered sale deed by paying Rs.2,500/- in the name of his mother benami for him; that the entire sale consideration was paid by him; that Thirumalai Ammal had no sufficient funds, and actually she did not pay the consideration; that he had been in exclusive control, possession and enjoyment of the said item of property, and thus, he was the absolute owner of the first item of the plaint schedule; that so far as the second item was concerned, pursuant to a panchayat dated 13.7.80, all the five sons of Thirumalai Ammal entered into a written agreement, in and by which the value of the second item was estimated at Rs.50,000/-; that the defendants 2 and 3 should take the said property, and in lieu of, they should pay Rs.7,400/- to the plaintiffs 1 and 2 and the first defendant each before the end of Ayppasi in the year 1980 apart from paying Rs.1 3,000/- to the first defendant for the discharge of the family debts; and that consequent upon the same, the first defendant has executed the release deed as agreed upon, but the plaintiffs have failed to do so, which constrained them to file a suit in O.S.No.1286/80 for specific performance. In the suit filed by the defendants 1 and 2 for specific performance, the plaintiffs have raised the defence that there was no panchayat; that they did not execute any agreement; and that even assuming that there was any agreement, it was neither valid nor enforceable.

20. In these two appeals, in order to solve the controversy between the parties, the main question that would arise for consideration would be whether the defence put forth by the first defendant that the first item belonged to him is acceptable, and whether the defendants 2 and 3 (plaintiffs in O.S.1286/80) are entitled for a direction against the plaintiffs (defendants 1 and 2 in O.S.1286/80) to execute a release deed in their favour.

21. Concededly, the first item of the suit immovable property originally belonged to Abbai Naidu. He has executed a sale deed in favour of Thirumalai Ammal on 5.3.64 under Ex.B23 for a consideration of Rs.2,500/-. The plaintiffs claimed partition stating that the said property belonged to their mother, and hence, themselves and the defendants 1 to 6 were each entitled to 1/8th share. It is contended by the first defendant that it was he, who purchased the property in the name of his mother benami by paying the said sale consideration, and he has been in possession and enjoyment of the property all along, and hence, it exclusively belonged to him. The defence that was put forth by the first defendant was negatived by the Court below and rightly too. A perusal of Ex.B23 sale deed dated 5.3.64 executed by Abbai Naidu in favour of Thirumalai Ammal would clearly reveal that the sale consideration passed to the vendor from the vendee. Thus, it would be clear that as per the recitals in the sale deed, the consideration was paid by the said Thirumalai Ammal. While the said sale deed contains the said recital in respect of the payment of consideration by the vendee Thirumalai Ammal to the vendor, nothing contrary to the tenor of the document can be presumed, nor can anything be drawn what is not found therein. No material is placed before the court below by the first defendant that either the consideration passed from his hand or he had funds to pay the sale consideration during the relevant time. It is pertinent to note that all the sons and daughters of the said Thirumalai Ammal were living separately after their marriage, and hence, it cannot be stated that all of them were living jointly. It is an admitted position that there was no joint family property. A perusal of Ex.B23 sale deed would reveal that the said house property was subjected to a mortgage, and the vendor undertook to redeem the same. The plaintiffs have marked the registered discharge receipt issued at the time of the redemption of the said mortgage as Ex.A1. The recitals therein would reveal that Thirumalai Ammal cleared the dues for the discharge of the said mortgage. It remains to be stated that at the time of Ex.B23 sale deed, the first defendant was a major. But, he is unable to give any satisfactory or acceptable reason why he should purchase the property in the name of his mother and not in his name. From the time of Ex.B23 sale deed in 1964 till the time of the death of Thirumalai Ammal and even after her death, the said house property continued to stand in the name of Thirumalai Ammal, and the property tax receipt also stood in her name. The first defendant has not name any attempt to transfer the tax assessment to his name. The available documentary evidence for payment of house tax in respect of the first item would clearly reveal that the assessment continued to be in the name of Thirumalai Ammal till the time of the suit. The above circumstances would be indicative of the fact that the property was purchased by Thirumalai Ammal, and she continued to be the owner till her life time. Hence, the plea of the first defendant that he purchased the first item of property benami; that the same was in his exclusive enjoyment; and that he was entitled to the property exclusively, has got to be rejected. Equally the contention of the first defendant that he acquired title to the property by adverse possession has got to be brushed aside. Thus, the lower court was perfectly correct in holding that the eight children of Thirumalai Ammal were each entitled to 1/8th share in the first item of property, and the plaintiffs were entitled to 1/4th share.

22. So far as the second item of the suit property viz. the house property situate in door No.78, Valayakkara street, Erode, which is shown as the subject matter of O.S.1286/80, was concerned, it is admitted by the parties to the proceedings that the said property originally belonged to Venkataperumal Naidu; and that he executed a Will bequeathing life interest on Thirumalai Ammal and the remainder on her sons viz. the plaintiffs and the defendants 1 to 3. On the death of Thirumalai Ammal, the property came to the hands of the plaintiffs 1 and 2 and the defendants 1 to 3. While the plaintiffs 1 and 2 have claimed 1/5 share each in the said property, the defendants 2 and 3 have not only raised a defence in the partition suit but also have filed a suit in O.S.1286/80 seeking specific performance directing the plaintiffs to execute the release deed relating to their 2/5th share in the suit property in favour of the defendants 2 and 3, on the basis of an agreement dated 13.7.1980, marked as Ex.B4. The plaintiffs 1 and 2 have raised a defence stating that they did not execute the said agreement; that no panchayat was convened; that the defendants 2 and 3 brought forth their men as panchayatars, who were examined as defence witnesses; that they they were the henchmen and partisans of the first defendant; that there was no agreement for panchayat nor did the panchayat give their award in writing, and thus, the said agreement to release was void ab initio and cannot be enforced.

23. The defendants 2 and 3 rested their suit exclusively on Ex.B4 agreement dated 13.7.1980. Hence, the relief sought for by them centres round upon the execution, validity and enforceability of the said agreement. It is the specific case of the appellants/defendants 2 and 3 that a panchayat was constituted on 13.7.1980, in which M. Kuppamuthu Raju, P.V.Gopalasamy Rowth, E.N.Deva Naidu, K.B.Arumugham and K. Veerasamy were the panchayatars; that pursuant to the panchayat, the plaintiffs 1 and 2 and the defendants 1 to 3 entered into Ex.B4 agreement; that the value of the property viz. the second item was fixed at Rs.50,000/-; that the appellants/defendants 2 and 3 should pay Rs.13,000/- to the first defendant towards the family debts and should also pay Rs.7,400/- each to the plaintiffs and the first defendant before the end of Ayppasi, and the plaintiffs and the first defendant should execute necessary release deeds in favour of the defendants 2 and 3 in respect of all the rights in the said second item; and that it was also further agreed that if the defendants 2 and 3 failed to perform their part of the agreement within the stipulated time, the plaintiffs 1 and 2 were entitled to get the release deeds from the defendants 2 and 3 and the first defendant after payment of the similar amounts to them. 24. After careful scrutiny of the available evidence, both oral and documentary, the Court has to necessarily agree with the finding of the Court below that Ex.B4 agreement is not true and genuine and has not come into existence as stated by the defendants 2 and 3.

25. According to the appellants/defendants 2 and 3, Ex.B4 agreement came into existence following a panchayat in which five named persons participated as panchayatars. In order to prove Ex.B4 agreement, the second defendant has examined himself as D.W.1, apart from examining the first defendant as D.W.5 and Gopalsamy Rowth, Kuppamuthu Raj and Deva Naidu as D.Ws.2 to 4. Even in the written statement, the plaintiffs have categorically denied the constitution of the very panchayat and any decision thereon. While the plaintiffs have come forward to state that Ex.B4 agreement did not come into existence following the said Panchayat, a duty was cast upon the appellants/defendants 2 and 3 to prove the said panchayat. Though the appellants/defendants 2 and 3 have examined five witnesses in that regard, there are so many inconsistent versions found in the testimonies of the witnesses, which naturally cast a doubt whether there was any such panchayat as contended by the defendants 2 and 3. D.W.1 has deposed that all the brothers executed a mutchalikka stating that they would be bound by the decision of the panchayatars, and the decision of the panchayatars was also written. Contrarily D.W.2 has stated that no such mutchalikka or document was entered into by the parties. D.W.3 has deposed that except Ex.B4 agreement, nothing was written. While the appellants/ defendants 2 and 3 have specifically averred in the plaint that the five named persons constituted the panchayat, D.W.1 has categorically deposed that the panchayat was constituted by ten persons. According to D.W.4, the panchayatars passed an award, and they signed the same and handed over the said award to D.W.3 Kupamuthu Raja. The defence witnesses have given varying versions as to ho w the value of the second item was arrived at Rs.50,000/- and entered in the document. They are unable to show how the family debts were fixed at Rs.13,000/-. Admittedly, the appellants/defendants 2 and 3 have not placed any document to prove the said panchayat. While there are discrepant versions as to the constitution of panchayat and as to the manner in which the award either oral or written, was passed, the case of the appellants/defendants 2 and 3 that the agreement under Ex.B4 was valid and enforceable cannot be accepted. A reading of Ex.B4 agreement would clearly indicate that the said agreement was entered into following such a panchayat. In the absence of any acceptable evidence to hold that there was any panchayat, the said recital as if a panchayat was constituted and a decision was arrived at cannot be relied on at all. Naturally, the case of the appellants/defendants 2 and 3 that Ex.B4 agreement came into existence pursuant to a panchayat would become shaky.

26. A close reading of Ex.B4 agreement would clearly indicate that the time was considered to be the essence of the contract. As per the recitals found therein, the defendants 2 and 3 should pay Rs.7,400/- to the plaintiffs and the first defendant each within three months from the date of the agreement viz. 13.7.1980, and if the defendants 2 and 3 failed to perform their part of the agreement within the stipulated time, the plaintiffs 1 and 2 would be entitled to get the release deed from the defendants 2 and 3 after payment of the similar amounts to them. Thus, from the very recitals, it would be abundantly clear that the parties were conscious about the time factor, and the time was fixed as the essence of the contract. It is pertinent to note that at one place, the time for performance of the obligation by the defendants 2 and 3 is shown as three months, and at another place, it is shown as within the end of Ayppasi, which would be round about the middle of November viz. 4 months, and thus, the time for performance of the contract for the defendants 2 and 3 is not certain. It can even be stated that it was ambiguous, because if the defendants 2 and 3 failed to perform within the stipulated time, the plaintiffs will be entitled to pay the said sum and get the release deed from the defendants 2 and 3. The Court may hasten to say that no evidence is available to show that within the stipulated time either within three months or within four months, the defendants 2 and 3 exhibited their readiness to perform their part of the contract by making the stipulated payments to the plaintiffs. At this juncture, it has to be necessarily stated that the three months period commencing from 13.7.80, the date of Ex.B4, came to an end on 13.10.1980. The second defendant has categorically admitted that their right to get the release deed under Ex.B4 document gets extinguished immediately on the expiry of the time stipulated under the document. Even as per Ex.B4 agreement, after the stipulated period, the plaintiffs 1 and 2 acquired their right to get the release deeds from the defendants 1 to 3 by making the similar payment.

27. Much reliance was placed on Ex.B5 release deed executed by the first defendant by getting Rs.7,400/- from the defendants 2 and 3 and on Ex.B6 receipt acknowledging the receipt of Rs.13,000/-. The learned Counsel for the appellants/defendants 2 and 3 that Ex.B4 agreement has been acted upon. The lower Court has elaborated the reasons and circumstances why those documents should not be believed as they were created only to support Ex.B4 agreement and why the evidence of the first defendant as D.W.5 should be discarded.

28. Needless to say that specific performance is an equitable relief. Merely because the relief is available in law, it need not be granted. Before exercising the discretion, the Court must take into account all the circumstances attendant on the instrument to find out the truth or otherwise. The said discretion has to be exercised on a sound and reasonable principle. While doing so, the Court should look into the conduct of the parties, the circumstances under which the contract was entered into and whether it would give the person an unfair advantage over the opposite party. Apart from the above, the Court should also consider whether the contract was fair and equitable before granting the relief. Whenever there is a conflict between the pleadings and the evidence, the Court should refuse the relief of specific performance. In the absence of clear evidence and proof of the agreement, it is clear that the Court cannot grant the discretionary relief of specific performance and that too when the plaintiff has come forward seeking the relief with unclean hands. In the instant case, as discussed above, the defendants 2 and 3 have thoroughly failed to prove that the agreement has come into existence in manner set out by them. That apart, the said agreement suffers from infirmities and uncertainty as to the material terms. It has to be necessarily held that the terms of the agreement are not clear, but ambiguous; that there is conflict between the pleadings and the evidence; and no doubt, all the above circumstances would brand the document as invalid and unenforceable. There is nothing illegal or infirm found in the judgment of the court below. Therefore, the judgment and decree of the trial court have to be confirmed.

29. In the result, both the appeal suits are dismissed, confirming the judgment and decree of the court below. No costs. Index: Yes

Internet: Yes

To:

1. The II Additional Subordinate Judge,

Erode (with records).

2. The Record Keeper,

V.R.Section,

High Court, Madras.

nsv/-




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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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