SWAMlKKANNU


This is an appeal preferred by Shanmughasundaram, the first defendant, against the judgement and decree dated 28th June, 1982 in O.S. No. 548 of 1979 on the file of the Court of the First Additional Subordinate Judge, Coimbatore, decreeing the suit for specific performance, holding that the plaintiffs have to deposit before 28-7-1982 into the Court below a sum of Rs. 60,045/-, the balance of sale price, that as and when such deposit is made by the plaintiffs, the property mentioned in Ex. A.1 agreement of sale has to be sold in favour of the plaintiffs by the first defendant and that the said sale deed has to be executed before 28-8-1982 failing which the Court below would execute the sale deed on behalf of the defendants in favour of the plaintiffs. The other relief prayed for by the plaintiffs was dismissed without costs. The Court below directed the first defendant to pay plaintiffs the costs of the suit and directed defendants 1 to 5 to bear their own costs.


2. The suit was filed before the Court below together with two sale deeds to be executed by the defendants within the time specified by the Court below failing which praying the Court to execute the said sale deeds specifying a sum of Rs. 1,164/- as well as the interest at 12% on Rs. 20,000/- from the date of the suit till the date of judgement and subsequently till the date of realisation of the said sum together with interest at the rate of 6% per annum to be paid by the defendants to the plaintiffs and also to render an account relating to the income derived from the suit property from 17-9-1978 till date of delivery of possession and for delivery of possession of the suit property by the defendants to the plaintiffs. The plaintiffs have also prayed for recovery of costs of the suit.


3. The case of the plaintiff's, in brief, is as follows : Defendants 2 to 5 are the children of the first defendant. The first defendant has no son. The first plaintiff died during the pendency of the suit. His legal representatives, defendants 5 to 9, were impleaded. On 17-9-1978, the first defendant on the one side and defendants 1 and 2 on the other, entered into an agreement of sale with respect to the suit property. As per the agreement of sale, a specific one-third share belonging to the first defendant has to be sold out of the total extent of 6 acres 86 cents in S.F. No. 428, Ganapathi village, Coimbatore Taluk. For the sale, the first and second plaintiffs agreed to pay a sum of Rs. 35,000/- per acre to the first defendant. On the date of the agreement of sale, the first and second plaintiffs had paid a sum of Rs. 20,000/- to the first defendant as advance. Later when the sale deeds were to be executed, the first defendant agreed to prepare a list of his debts and hand over the same. The time stipulated as per the agreement of sale was extended to 13-1-1979 subsequently. The first and 2nd plaintiffs were always ready and willing to purchase the property as per the agreement of sale. The first defendant agreed to sell the land to the 1st and 2nd plaintiffs or to their nominees. According to him, the first plaintiff had purchased stamp-papers in his name. The second defendant had purchased the stamp papers in the name of the 4th plaintiff for Rs. 8,800/-. Two sale deeds were written for Rs. 39,900/- on 10-12-1978. The first and the 2nd plaintiffs asked the first defendant to execute the sale deed. The first defendant had stated that his brothers had instituted a suit in O.S. No. 1268 of 1978 on the file of the Second Additional Subordinate Judge, Coimbatore and in that suit an order of interim injunction has been obtained against him restraining him from selling the suit property. But with respect to the said suit property, sub-division had been effected. In the specified portion, the first defendant is in possession. Therefore, the interim injunction order obtained by the brothers of the first defendant does not in any way affect the right of the first defendant selling the property as agreed to by him. The first defendant and his brother have entered into an agreement surreptitiously and both sides had endorsed in the petition for interim injunction. The above act on their part is only to thwart the agreement of sale. The suit property is now in the enjoyment of the first defendant. The first defendant is also enjoying the interest on the advance amount of Rs. 20,000/-. On both these debts, the plaintiffs have incurred loss. So, on the said amount, the plaintiffs are entitled to interest at the rate of 12% per annum from 10-12-1978. With respect to the income that is being derived from the suit property by the first defendant, he is bound to render accounts relating to the income received by him. On 6-1-1979 a notice was sent to the first defendant by the Advocate for the plaintiffs. A reply dated 25-1-1979 containing false details was issued by the first defendant. As per the agreement, the first defendant is bound to execute a sale deed.


4. The first defendant had filed a written statement which was adopted by defendants 2 to 5. It is, inter alia, contended that on 17-9-1978 the first defendant had executed the agreement of sale and also obtained Rs. 20,000/- as advance. It is denied that the first defendant had agreed to sell one-third share in S.F. No. 428 in Ganapathi village. It is a travesty of truth when it is stated that the first and second plaintiffs were ever ready and willing to perform their part of the obligation arising out of the agreement. The brothers of the first defendant had obtained an order or interim injunction in I.A. No. 1575 of 1978 restraining the alienation of specific one-third share in the suit property. The first defendant took proper steps and in order to vacate the said injunction in the said interlocutory application an endorsement was made by both sides. Accordingly, the first defendant had been granted permission to sell the common one-third share in favour of the plaintiffs. The first defendant was ready and willing to execute the sale deed as per the agreement of sale, but it was only the plaintiffs who were protracting and were not coming forward to have the sale deed executed. Thereafter, the first defendant sent a registered notice to the plaintiffs asking them to complete the sale. After the permanent injunction had been issued against the first defendant in I.A. No. 1575 of 1978 in O.S. No. 1258 of 1978, the first defendant is unable to sell the property immediately. It is incorrect to say that there had been surreptitious agreement entered into by the first defendant and his brothers so as to thwart the agreement of sale by obtaining an injunction putting forth false reason in O.S. No. 1258 of 1978 and also by a joint endorsement. It is only for executing the sale deed in favour of the plaintiffs before the stipulated time, without any delay, the first defendant had made the joint endorsement in the said suit. It is incorrect to say that the plaintiffs in this suit were ready and willing to perform their part by getting the sale deed in their favour and that the first defendant had failed to perform his part of the contract so for as the agreement of sale is concerned. The plaintiffs have no right to ask for interest on the advance of Rs. 20,000/- or an account relating to the income derived from the suit property. The defendants 2 to 5 have got no right or interest in the suit property. They have been impleaded unnecessarily in this suit. Therefore, the suit has to be dismissed with costs.


5. On 29-11-1980, an ex parte judgement was passed against defendants 1 to 5. Therefore, the first defendant alone had filed before the Court below I.A. No. 162 of 1981 for setting aside the ex parte judgement against him. The Court below set aside the ex parte judgement as against the first defendant alone and took the case on file for fresh disposal.


6. The first defendant had filed an additional written statement before the lower Court inter alia contending that the suit is barred by limitation, that the first defendant was ready and willing to sell, but yet the plaintiffs had not come forward to discharge their part of the obligation as per the agreement of sale. They had slept over their rights. They had not proved that they were ready and willing to get the sale deed executed in their favour. After the price of house-sites had increased, the plaintiffs had instituted the suit. By their own laches and infirmities the plaintiffs cannot now pray for the reliefs sought for by them. They are not entitled to the reliefs as they have lost their right to get the sale deed executed in their favour as per the agreement.


7. On the above pleadings, the following issues were framed by the court below for consideration :-


1. As per the contentions raised in paragraph 4 of the written statement, are not the plaintiffs entitled to the relief of specific performance pursuant to the agreement of sale ?


2. Whether the plaintiffs had been ready and willing to perform their part of the contract as per the agreement of sale ?


3. Whet her the first defendant is responsible for the non-performance of the suit agreement of sale ?


4. Are defendants 2 to 5 necessary parties to the suit ?


5. Are plaintiffs entitled to interest on the amount of Rs. 20,000/- paid by them as advance to the first defendant ?


6. Whether the plaintiffs are entitled to demand accounts relating to the income derived from the suit property ?


7. To what reliefs, if any, are the plaintiffs entitled ?


8. An additional issue was framed on 6-11-1981 to the following effect :-


Whether the reliefs prayed for by the plaintiffs are barred by limitation ?


9. On behalf of the plaintiffs, the second plaintiff, A.S. Narayanaswami, examined himself as P.W. 1. Ex. A.1 is the agreement of sale executed by the first defendant in favour of the first and second plaintiffs on 17-9-1978, Ex. A.2 is the sale deed in which there is no signature of the executants and which has to be registered. Ex. A. 3 is a similar document. Ex. A. 4 is the lawyer's notice sent to the first defendant by the Advocate of first and 2nd plaintiffs on 6-1-1979. Ex. A. 5 is the reply notice sent by the Advocate of the first defendant to the 1st and 2nd plaintiffs on 2-51-1979. Ex. A. 6 is a rejoinder dated 3-2-1979 sent by the Advocate of the first defendant. Ex. A. 7 is the postal acknowledgment dated 5-2-1979. Ex. A. 8 is the endorsement dated 13-12-1978 extending the time mentioned in the agreement of sale. Ex. A.9 is the copy of the resettlement register in relation to the land bearing S.F. No. 428. Ex. A.10 dated 11-2-1974 is the first receipt. Ex. A.11 dated 11-4-1972 is the first receipt. Ex. A.12 is a copy of the counter filed by the first defendant in O.S. No. 1258 of 1978 on the file of the Court of the Second Additional Subordinate Judge, Coimbatore. Ex. A.13 is the counter filed by the first defendant in I.A. No. 1575 of 1978 in the above suit. Ex. A.14 is a copy of the order in I.A. No. 1575 of 1978. Ex. A.15 is a copy of the plaintiff the said suit. The first defendant A. Shanmughasundaram, examined himself as D.W. 1. Ex. B.1 dated 16-1-1979 which is a copy of the final order in I.A. No. 1575 of 1978 has been failed on behalf of the defendants.


10. On a consideration of the evidence available, both oral and documentary, the Court below came to the conclusion under issue No. 1 that as per the reasons stated in the written statement in paragraph 4, the contention raised on behalf of the first defendant that the plaintiffs are not entitled to the performance of the terms of the agreement of sale is not correct and accordingly the Court below had held issue No. 1 in favour of the plaintiffs. Under issue No. 2 the Court below had held that as per the agreement of sale, the plaintiffs were ready and willing to perform their part of the obligation. Under issue No. 3, the Court be low held that it is the first defendant who was responsible for the non-performance of the terms of the agreement. Under issue No. 4, the lower Court held that defendants 2 to 5 are not necessary parties to the suit. Under issue No. 5 the Court below held that the plaintiffs are not entitled to ask for interest on the advance amount paid by them to the first defendant. Under issue No. 6, the Court below held that the plaintiffs are not entitled to ask for accounts relating to the income derived from the suit property. On the additional issue, the Court below came to the conclusion that the suit is not barred by limitation. The Court below discussed issue No. 7 and held as follows :-


"The plaintiffs prayed for execution of the sale deed in their favour as per the boundaries stated in the plaint. It is not known as to the source from which the plaintiffs have obtained the said boundaries as well as the details of the property mentioned in the plaint. Therefore, as per the details given in Ex. A.1 agreement of sale, it is possible to pronounce an order directing the first defendant to execute a sale deed. As per the decisions arrived at with respect to the issues, as mentioned above, the plaintiffs have to deposit Rs. 60,045/- in the Court by 28-7-1982 and when such deposit is made by the plaintiffs, the first defendant has to execute the sale deed in favour of the plaintiffs before 28-2-1982 as stipulated in Ex. A.1. failing which the Court would execute the said sale deed on behalf of the first defendant in favour of the plaintiffs. The other reliefs prayed for by the plaintiffs were negatived. The cost of the suit was directed to be paid by the 1st defendant to the plaintiffs. Defendants 1 to 5 were directed to bear their own costs." *


11. Aggrieved by the above decision, the first defendant, Shanmughasundaram has come forward with this appeal. It is inter alia contended on behalf of the appellant - first defendant by Mr. K. Sengottian that the lower Court failed to note that the appellant herein entered into an agreement to convey any specific share in S.F. No. 428 as claimed by the plaintiffs and that the lower Court failed to note that it, is the plaintiffs who were not ready and willing to purchase the property by refusing to get the property, namely, common one-third share in S.F. No. 428. It is also contended on behalf of the appellants that the lower Court failed to note that the plaintiffs by claiming specific share in the suit property have committed breach of contract and as such they are not entitled to the equitable remedy of specific performance. It is also pointed out on behalf of the appellants that the lower Court failed to note that the plaintiffs respondents herein having agreed to purchase only a common one-third share in S.F. No. 428, as admitted by P.W. 1 himself, is now claiming falsely a specific share and this would prove that the plaintiffs are not ready and willing to purchase the common one-third share as per the agreements. So it is strenuously contended that the decree for specific performance of common one-third share is contrary below. In other words, it is contended that the trial Court ought to have dismissed the suit itself since the plaintiffs have not claimed the common one-third share as per Ex. A.1. It is also submitted that the lower Court failed to note that the defence of the appellants herein in O.S. No. 1258/78 does not in any way entitle the plaintiffs to claim any specific share in. S.F. No. 428. Further, it is pointed out on behalf of the appellant that the lower Court failed to consider Ex. B.1 while discussing the case of the first defendant - the appellant herein.


12. The point that arises for consideration in this appeal is :-


Whether the defendants-respondents herein are entitled to have a decree for specific performance on the basis of Ex. A.1 ?


13. Ex. A.1 reads as follows :- (Matter in vernacular omitted - Ed.)


14. Ex. B.1 reads as follows :-


"Petition dated 12-12-1978 under Order 39, Rules 1 and 2 and Section 151, C.P.C., praying for issue of an interim injunction restraining the respondent from in any way alienating or encumbering the suit property pending disposal of the suit.


This petition coming on this day, before me, for hearing, upon perusing the petition, affidavit and counter and other connected papers and upon hearing the argument of Thiru P. Kuppuswami and A. Viswananthan Advocates for petitioners and of Thiru V.G. Palanisamy, Advocate for the respondent, this Court doth order and direct :


That the respondent be, and is hereby restrained from selling the specific portion in the suit property and that he be entitled to sell his undivided 1/3rd share in the suit property.


Description of property :-


Coimbatore Regn. Dt. Coimbatore Sub-Regn. Dt. in Ganapathy village S.F. No. 428 Ac 6.86 Kist Rs. 1542/- in this a well S.C. 5.5 H.P. Electric Motor pumpset 10 anganam tiled shed and trees and other appurtenances etc." *


15. It is relevant to note that on a careful and anxious scrutiny of the entire evidence available on record, both oral and documentary, at no point of time the plaintiffs have expressed their willingness to purchase the common one-third share. EX.A.6 dated 3-3-1979 sent by the Advocate of plaintiffs 1 and 2 to the Advocate of the first defendant, reads as follows :-


"I have been instructed by my clients (1) Ponnuswami and (2) A.S. Narayanaswamy to give you the following rejoinder to your reply notice dated 25-1-1979 sent on behalf of your client, Shanmugasundaram, son of Arunachala Goundar, residing at Sakkilian Thottam, Ganapathy, Coimbatore-641006.


1. It is clear from your reply that your client is definitely having second thoughts about the agreement dated 17-9-1978. In one portion of the reply he has denied the agreement, while in another portion he is willing to complete the sale as agreed. It is difficult to reconcile this contradiction. Your client apparently wants to either delay the transaction or back out of the same.


2. The reference in your reply to O.S. 1258 on the file of the Subordinate Judge, Coimbatore, is misleading. In the counter statement filed by your client he has definitely stated that the properties have been divided long ago and the portion agreed to be conveyed to my client had been subdivided by the Revenue Department. Your client has further asserted his rights to convey to my clients what has been agreed. However, during the enquiry in the injunction application your client has gone back on his counter statement and has made a joint endorsement to the detriment of my clients. Therefore, the alleged impossibility on the part of your client to complete the sale was of his own deliberate seeking. It is well-known that your client's brothers want to upset the agreement and get at the properties. Therefore, all of you appear to have joined together and have filed a make belief suit to defeat the rights of my client.


3. Your client was never ready and willing to complete the sale deed as agreed. He has also received an advance of Rs. 20,000/- from my clients, who are losing interest on the same. Further, my clients have not been let into possession with the result your client is enjoying the income therefrom. Your client is liable to account the income also. My clients have long ago purchased the stamp-papers and have written two sale deeds with your client's knowledge; but which he has refused to sign. The stamp-papers alone have been purchased at a cost of Rs. 8,800/-. My clients have, therefore, no choice except to file a suit against your client for appropriate reliefs and your client will be liable for all the items referred to above." *


16. Ex. A.5 dated 25-1-1979 reply notice sent by the Advocate of the first defendant to the Advocate of the plaintiffs 1 and 2 reads as follows :


Under instructions from my client Thiru Shanmugasundaram son of Arunachala Goundar Ganapathy, I am giving this reply to your notice issued on behalf of your clients Ponnusamy and A.S. Narayanaswamy of Coimbatore.


My client do admit the agreement dated 17-9 -1978 referred in your notice. My client is anxious to complete the sale as agreed but meanwhile his brother have filed a partition suit O.S. No. 1258 of 1978 on the file of the Subordinate Judge of Coimbatore and also obtained an injunction restraining my client from alienating the property which was agreed, to be sold to your client. So it became impossible for my client to complete the sale.


But my client had now got the injunction order vacated to the extent that he could sell his 1/3rd common share. That your clients are quite aware of all these proceedings and my client cannot be found fault with.


My client is always willing and ready to complete the sale. In view of the order passed in the I.A. 1575 of 1978 in O.S. No. 1258 of 1978 my client is ready to sell his common 1/3rd share. If your client fix up the date and inform my client for executing the sale, my client is ready to do it at once. Hence, my client hereby request your client to get ready with the balance of purchase money and complete the sale. Otherwise, my client will not be responsible for the consequences arising therefrom".


17. It is seen that in spite of the first defendant's assertion in Ex.A.5 and the contents of the pleadings, the plaintiffs - respondents have not at any point of time expressed their willingness to purchase the common 1/3rd share. A careful reading of the evidence let in on behalf of the plaintiffs - respondents herein clearly shows that they want to improve their case while the witnesses were examined on their behalf. They want to improve their case over and above what they stated already in the plaint. No amount of evidence can be looked into upon a plea which was never put forward. In 1953 AIR(SC) 235, 1953 (23) CC 307, 1953 SCJ 345, 1953 (4) SCR 789, 1953 (1) MLJ 729, 1930 AIR(PC) 57 (1) Siddik Mohamed Shah v. Mt. Saran it has been observed by their Lordships as follows :-" *


The spiritual adviser, who is the appellant wishes to keep them first upon the ground already specified which their Lordships have already disposed of and, secondly upon the ground that it was gift made by the widow herself but that claim was never made in the defence presented and the learned Judicial Commissioners therefore, very truly find that no amount of evidence can be looked into upon a plea which was never put forward. The result is that their Lordships will humbly advise His Majesty that the appeal should be dismissed.

"18. In the instant case, we do find that on behalf of the plaintiffs-respondents, evidence had been let in respect of the relief claimed by them which is an equitable remedy which cannot be granted to them in view of the fact that it is not specifically. stated in the pleadings that they are willing to purchase the common one-third share. There are ample prevarications and uncertainties in the case of the plaintiffs which are fatal to the equitable relief claimed by them. Hence, the jud

gement and decree of the Court below have necessarily to be set aside. 19. Ex. A.12 the written statement filed in O.S. No. 1258 of 1978 reads thus :" * The defendant does not admit the allegations that there was no partition of the suit properties. Even though there was no partition deed, the parties were enjoying separate shares with clear demarcation ever since the partition of other family properties i.e., from 28-4-1955. There was also subdivision of the suit property as per the enjoyment of the plaintiffs and the defendant. So, the absence of a document to prove partition cannot make the properties common". At this appellate stage, on behalf of the appellants C.M.P. No. 16924 of 1987 had been filed to receive the certified copy of the partition deed dated 28-4-1955 and admit the same as additional evidence in this appeal. This is admitted and marked as Ex. B.2. It is stated in the affidavit accompanying the petition for reception of additional evidence that in the original partition deed dated 28-4-1955 entered into between him and his brother, the entire S.F. No. 428 was left in common. Since the matter was not disputed by the plaintiffs in the trial Court the said partition deed was not marked as an exhibit. Therefore, this Court admit this document and mark it as Ex. B.2 as additional evidence since there can be no controversy in admitting the same. As already stated, at no point of time, the plaintiffs have expressed their willingness to purchase the common one third share. 20. On a consideration of the contentions of the parties together with the evidence already available on record, we find that the plaintiffs-respondents herein are not entitled to the equitable remedy of specific performance of Ex. A.1 agreement of sale since no definite case has been put forward by them as to their willingness to purchase the common one-third share in the property mentioned in Ex. A.1 or specific one-third share as claimed by them. The contention now raised on behalf of the respondents is that sub-division had been effected, that it was in the possession of the first defendant and that the first defendant had an undisputed right to sell the same to the plaintiffs respondents herein cannot be upheld in view of the fact that the evidence on record shows that there had been no clear partition of specific portion of the property which is the subject-matter of the agreement of sale Ex. A.1. 21. In the result, the appeal is allowed. But, in the circumstances of the case, there will be no order as to costs.