Raman (dead) by Lrs. v. R. Natarajan
4. The respondent herein filed a suit in O.S. No.360 of 2008 on
the file of the First Additional District Munsif, Salem, for specific
performance of an Agreement of Sale dated 19.06.1993, contending
inter alia :
that the appellants agreed to sell the suit property which is
a land of the extent of about 76 cents for a total sal e
consideration of Rs.1,44,000;
that an advance of Rs.25,000 was paid at the time of
execution of the Agreement;
that the defendant received further amounts of
Rs.50,000/- on 19.11.1995, Rs.43,000/- on 11.05.1998,
Rs.10,000/- on 27.01.2001 and Rs.16,400/- on 10.07.2005;
that appropriate endorsements were made on the reverse
of the first, second and third pages of the agreement;
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that the entire sale consideration thus stood paid;
that it was provided in the Agreement that the defendant
should simultaneously enter into an agreement with his
brother’s wife for the purchase of a portion of her land, to
be used as pathway for access to reach the suit property ;
that the time for performance of the obligations under the
Agreement was fixed as 11 months from the date of the
defendant entering into an agreement with his brother’s wife
for the purchase of the land for the pathway;
that however when the plaintiff issued a legal notice dated
27.03.2007, the defendant sent a reply denying everything;
and
that therefore, the plaintiff was constrained to file the suit.
5. The defendant filed a written statement denying everything,
including the execution of the Agreement. Therefore, the Trial Cou rt
framed the following issues;
“(i) Is the Agreement of Sale dated 19-8-93 real and true?
(ii) Is the suit barred by limitation?
(iii) Is the plaintiff eligible for the relief of specific performance?
(iv) Any other relief?”
6. After trial, the Trial Court passed a Judgment and decree dated
14.02.2012, holding that the Agreement dated 19.06.1993 was true and
valid; that the suit was not barred by limitation; and that the plaintiff
was entitled to the relief of specific performance.
7. The First Appellate Court came to the conclusion,
that the endorsements made in the Agreement of sale on
12.11.1995, 11.05.1998, 27.01.2001 and 10.07.2005 marked
as Exhibit A-2 to A-5, were not proved;
that the plaintiff could not prove that he was ready and
willing to perform his part of the obligations;
that the suit was barred by limitation; and
that, therefore, the plaintiff was not entitled to specifi c
performance.
RAMAN (DEAD) BY LRS v. R. NATARAJAN
8. The only substantial question of law framed by the High Court
at the time of admission of the second appeal was as follows:
“In the light of the finding of the trial Court that Ex. A-1 – s ale
agreement is true, whether the First Appellate Court was right in
holding that the endorsements made on Ex.A.1 under Exs.A.2 to
A.5 have not been proved though, according to the plaintiff, it has
been proved by the evidence of P.Ws. 2 and 3?”
9. The High Court recorded its opinion on the above substantial
question of law as follows:
“From over all consideration of pleadings, oral and documentary
evidence and the judgment of the trial Court, it is clear that the
first respondent only executed Exs.A.1 to A.5 and the First
Appellate Judge on erroneous consideration of pleadings and
evidence of P.Ws.2 to 3 held that the appellant failed to prove the
endorsements in Exs.A.2 to A.5 after holding that Ex.A.1 was
executed by the first respondent and relying of Ex.A.2 to hold
that suit is barred by limitation.”
10. What was recorded as above was not actually an answ er to
the substantial question of law, even if we construe what was framed, to
be a substantial question of law. The above finding is actually a finding
of fact. Apart from that, the High Court also went beyond the substantial
question of law framed by it and proceeded to hold that the suit was not
barred by limitation. The High Court opined that the time for performance
of the obligations under the Agreement was fixed as 11 months from the
date on which the defendant entered into an agreement with his brother’s
wife for the purchase of a land to be used as pathway. Howev er, the
defendant did not enter into any agreement with his brother’s wife. On
the other hand, the defendant chose to deny the very ex ecution of
Agreement of Sale in his reply notice dated 04.04.2007. Therefore, the
High Court held that limitation started running from the date of refusal
and that the suit filed in November, 2007 was within the period of limitation.
11. The mistakes committed by the High Court were manifold.
First, the High Court framed a question which was actually a question of
fact which involved appreciation of evidence and not a substantial question
of law. As a consequence, the answer given by the High Court was only
a finding of fact. Next, the High Court reversed the finding of the First
Appellate Court on the question of limitation, without framing a substantial
question of law and without even referring to the statutory provisions.
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12. As we have pointed out earlier, the Agreement is dated
19.06.1993. The Agreement contains four endorsements which are dated
12.11.1995, 11.05.1998, 27.01.2001, 10.07.2005.
13. The defendant raised the question of limitation, on the basis of
the fact that the fourth endorsement was made beyond a period of three
years from the date of the third endorsement. Such a defence was based
upon Section 18(1) of the Limitation Act, 1963.
14. But as a matter of fact, the limitation for filing a suit for specific
performance, in terms of Article 54 of The Schedule to the Limita tion
Act, 1963 is three years, “ from the date fixed for the performance or
if no such date is fixed, when the plaintiff has no tice that the
performance is refused .”
15. But in the entire memorandum of grounds of second appeal
filed by the respondent-herein before the High Court, there was no
whisper or reference to Article 54 of the Schedule to the Limitation Act,
1963. The only substantial question of law framed by the High Court at
the time of entertaining the second appeal was not about li mitation
revolving around Article 54 of the Schedule to the Limi tation Act.
Therefore, the High Court could not have answered the question of
limitation in favour of the respondent herein, (i) without framing any
substantial question of law; and (ii) without even a reference to Article
54.
16. In any case, the High Court ought to have seen that a Court
cannot grant the relief of specific performance aga inst a person
compelling him to enter into an agreement with a third par ty and seek
specific relief against such a third party. In other words, t he specific
performance of the agreement by the appellants herein, depended upon
(i) the appellants entering into an agreement with a third party; and (ii)
appellants being in a position to compel such third party to perform her
obligations under such agreement.
17. The High Court ought to have seen that the spec ific
performance of the Agreement in question comprised of two parts namely,
(i) the defendant entering into an agreement with his brother’s wife for
the purchase of a land for providing access to the land agreed to be sold
under the suit Agreement of Sale; and (ii) the defendant thereafter
executing a sale deed conveying the property covered by the suit
Agreement of Sale.
RAMAN (DEAD) BY LRS v. R. NATARAJAN
18. Since the defendant’s brother’s wife was not a party to the
suit agreement of sale, the Court cannot compel her to enter i nto an
agreement with the defendant. In other words, the performance of the
first part of the obligation, which we have indicated in the p receding
paragraph, cannot be compelled by the Court, as it depended upon the
will of a third party. As a consequence, the performance of the second
part of the obligation, may be hit by Section 12(1) of the Specific Relief
Act, 1963 which reads as follows:-
“12. Specific Performance of part of contract. -(1) Except as
otherwise hereinafter provided in this section the court shall not
direct the specific performance of a part of contract.
xxx xxx xxx”
19. From the pleadings on record, it appears that the case on hand
will not even be covered by sub-sections (2), (3) & (4) of Section 12 of
the Specific Relief Act. Since it is stated very clearly in the suit Agreement
of Sale that the land covered by the Agreement will not have any access,
unless the defendant entered into an agreement with his brother’s wife,
it is clear that none of the exceptions contained in sub-sections (2), (3)
and (4) of Section 12 will apply.
20. Even the limited rights conferred by Section 13(1)(b) of the
Specific Relief Act are not available to the respondent, as there was no
legal right in the defendant to compel 3rd parties to convey their land to
him for the purpose of providing a pathway to the land agreed to be sold
to the respondent herein. Section 13(1)(b) reads as follows:
“13. Rights of purchaser or lessee against person with no
title or imperfect title .—(1) Where a person contracts to sell
or let certain immovable property having no title or onl y an
imperfect title, the purchaser or lessee (subject t o the other
provisions of this Chapter), has the following rights namely:-
(a) xxx xxx xxx
(b) where the concurrence of other persons is necessa ry for
validating the title, and they are bound to concur at the request of
the vendor or lessor, the purchaser or lessee may compel him to
procure such concurrence, and when a conveyance by oth er
persons is necessary to validate the title and they are bound to
convey at the request of the vendor or lessor, the purchaser or
lessee may compel him to procure such conveyance;”
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21. Therefore, the High Court committed a grave error in law in
granting a decree for specific performance. Hence the appeal is allowed,
the impugned judgment of the High Court is set aside and the relief of
specific performance claimed by the respondent is rejected . However,
there will be a decree directing the appellants to pay to the respondent,
the amount of Rs.1,44,400/- paid by the respondent, with interest @ 9%
p.a. from the date of filing of the suit, till the date of repayment. The
parties shall bear their respective costs throughout.
Divya Pandey Appeal allowed.
(Assisted by : Roopanshi Virang, LCRA)
RAMAN (DEAD) BY LRS v. R. NATARAJAN