IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 24.03.2010
CORAM :
THE HONOURABLE Mrs.JUSTICE R.BANUMATHI
and
THE HONOURABLE Mr.JUSTICE M.VENUGOPAL
Appeal Suit No.773 of 2005
Manoharakumari ... Appellant
vs.
1.Anitha
2.Swetha ... Respondents
Prayer: Appeal filed under Section 96 of C.P.C. against the Decree and Judgment made in O.S.No.632 of 2004 dated 18.5.2005 on the file of Additional District and Sessions Judge- Fast Track Court No.I, Coimbatore.
For Appellant : Mr.AR.L.Sundaresan
for Ms.A.L.Gandhimathi
For Respondents : Mrs.Vedavalli Kumar
JUDGMENT
R.BANUMATHI,J.
Being aggrieved by the dismissal of the suit for specific performance, the unsuccessful Plaintiff has filed this appeal. For convenience, the parties are referred to as arrayed in the suit.
2. The case of Plaintiff is that she and the Defendants entered into an agreement of sale dated 30.6.1994 agreeing to sell the suit schedule house property for Rs.16.75 lakhs and a sum of Rs.3,20,000/- was paid by the Plaintiff to the 1st Defendant by means of a Pay Order bearing No.398659 dated 29.6.1994 drawn on the Vijaya Bank, Dr.Nanjappa Road, Coimbatore towards part of sale consideration and the Pay order was encashed by the 1st Defendant. Defendants 2 and 3 are minor daughters of 1st Defendant. As per the terms of the sale agreement, sale deed has to be executed after getting permission of the competent Court in so far as the share of minors - Defendants 2 and 3. Jayaram - 1st Defendant's husband was the absolute owner of the suit property and he died intestate on 3.8.1991. After death of Jayaram, Venkatalakshmi mother of of Jayaram and Snehalatha, sister of Jayaram have relinquished their right in the suit property in favour of Defendants by virtue of Ex.A.19 - release deed. Further case of Plaintiff is that to obtain permission of the Court to alienate the shares of minors, the 1st Defendant filed H.M.G.O.P.No.433 of 1994 before the Sub-Court, Coimbatore. In the said H.M.G.O.P., Plaintiff filed application I.A.No.457 of 1995 to implead herself. According to Plaintiff, with an intention to defeat the legitimate right of Plaintiff, by filing memo, 1st Defendant has not pressed the main O.P., and the Court dismissed the H.M.G.O.P., as well as her impleading petition. According to the Plaintiff, she was always ready and willing to perform her part of contract. Only the Defendants have not honoured their commitments under the sale agreement. After issuance of the pre-suit notice Ex.A.13, which was acknowledged by the Defendants, the Defendants have not chosen to reply. Hence, the Plaintiff has filed the suit for specific performance stating that she is always ready and willing to perform her part of the contract.
3. During pendency of the suit, 1st Defendant died on 6.6.1998 and her only legal heirs - the respondents/Defendants 2 and 3 had become majors.
4. Denying execution of sale deed and alleging fraud and forgery, Defendants No.2 and 3 have filed written statement contending that the suit agreement of sale dated 30.6.1994 is void and cannot be enforced in a Court of law. According to the Defendants, their paternal grandfather Venkatapathi was the original owner of the suit property and he had executed a Will and their father Jayaram was given life interest without any right or power of alienation. Further case of Defendants is that after death of their paternal grandfather - Venkatapathy and their father V.Jayaram, right, title and interest in the suit property stand absolutely vested in the Defendants and their mother - 1st Defendant did not have any right to enter into agreement of sale to execute any agreement on behalf of Defendants No.2 and 3. Stating that the 1st Defendant had not and could not have received any pay, much less the sum of Rs.3,20,000/-, the Defendants have taken the plea that the agreement of sale is only an attempt to knock off the property. According to Defendants, there was no necessity for sale of the suit property and the Defendants are not bound by Ex.A.1 agreement of sale and the Defendants prayed for dismissal of the suit.
5. Defendant No.3 filed separate written statement inter alia contending that she is no way connected with sale consideration of RS.3,20,000/- paid by the Plaintiff to the 1st Defendant. Action of 1st Defendant with regard to share of 3rd Defendant does not bind her. Under Section 8(2) of the Hindu Minority & Guardianship Act, 1956, it is necessary to obtain previous permission of Court in effecting sale of immovable property of minor and 3rd Defendant prayed for dismissal of suit.
6. The suit was originally filed before the Subordinate Judge's Court, Coimbatore as O.S.No.18 of 1996 and thereafter transferred to the Additional District and Sessions Judge-Fast Track Court No.1, Coimbatore and re-numbered as O.S.No.632 of 2004.
7. On the above pleadings, the trial Court framed six issues: Whether the suit agreement of sale was for benefit and welfare of minors, Whether 1st Defendant can validly execute the sale deed and Whether Plaintiff is entitled for the relief of specific performance.
8. In the trial Court, Plaintiff examined herself as P.W.1. Tenant in the shop was examined as P.W.2. Krishnamurthy attesting witness to Ex.A.1 and who negotiated for sale was examined as P.W.3. Brother of Plaintiff was examined as P.W.4 and the Manager of Vijaya Bank was examined as P.W.5. Exs.A.1 to A.26 were marked on Plaintiff's side. On the Defendant's side, 3rd Defendant was examined as D.W.1. To bring home the value of property, Pitchaiappan, Civil Engineer was examined as D.W.2. Exs.B.1 to B.3 were marked on the Defendant's side.
9. Upon consideration of oral and documentary evidence and referring to evidence of D.W.1 - 3rd Defendant, trial Court held that signature in Ex.A.1 agreement of sale does not appear to be signature of 1st Defendant late Padmini. Trial Court faulted the Plaintiff for not taking steps to examine her father Santhanam, who has signed as first witness in Ex.A.1 and trial Court held that execution of Ex.A.1 was not properly proved. However, there was no specific finding recorded by trial Court as to whether Ex.A.1 is true or genuine. Pointing out that the Defendants No.2 and 3 have attained majority and 1st Defendant Padmini, who executed agreement, was dead, trial Court held that the Plaintiff cannot insist upon execution of sale deed by the Defendants. Trial Court also took the view that Ex.A.1- agreement of sale is not proved to be in the interest of the minors and in the absence of any permission from the Court, 1st Defendant mother cannot enter into an agreement to sell the property binding the shares of the minors.
10. Challenging the findings of trial Court, the learned Senior Counsel for Appellant/Plaintiff Mr.AR.L.Sundaresan contended that the plea taken by the Defendants that the suit property does not belong to them is not correct. Learned Senior Counsel would further submit that payment of advance of Rs.3,20,000/- was proved by the Plaintiff by Ex.A.2 Pay Order and Ex.A.26 Pay Order certificate issued by the Bank and while so trial Court erred in doubting the genuineness of Ex.A.1 agreement of sale. Drawing our attention to the oral evidence of P.Ws.1 and 3, the learned Senior Counsel would further submit that the trial Court erred in brushing aside independent evidence of P.W.3. It was further argued that when there is no specific denial of the agreement of sale and the 3rd Defendant, who had denied the signature of her mother in the sale agreement, has denied the signature of her mother in the sale agreement, the Court below erred in comparing the disputed signature in Ex.A.1. Learned Senior Counsel would further submit that deceased 1st Defendant being mother of minors, who is the only guardian and she had all the rights to deal with the undivided interest of the minors and the permission to sell itself was not necessary and Court below ought to have seen that Ex.A.1 - agreement of sale was intended for the benefit of the minors and their interest and welfare. Further contention of Plaintiff is that the trial Court has not properly analysed and the conduct of the 1st Defendant in withdrawing the H.M.G.O.P.No.433 of 1994.
11. The learned counsel for Respondents 1 and 2 Defendants No.2 and 3 contended that before written statement was filed, 1st Defendant died and what ever was within their knowledge 3rd Defendant deposed before the Court and nothing adverse could be attributed to 3rd Defendant (D.W.1). Placing reliance upon AIR 1994 KARNATAKA 271 (SMT.MANGALA VS. SMT.JAYABAI AND OTHERS) and AIR 1997 MADRAS 40 (THIRUMALAISWAMI GOUNDER VS. PARVATHIAMMAL (DIED) AND OTHERS), it was further contended that when the widowed mother was not the legal guardian and she cannot meddle with the property and 1st Defendant ought to have obtained permission from the Court for selling the property even for entering into the agreement of sale and while so without obtaining permission she could not have validly entered into agreement of sale.
12. We have carefully considered the submissions of both sides. Upon analysis of evidence and materials on record and judgment of the trial Court and the rival contentions, the following points arise for consideration.
(1) Whether the trial Court was right in saying Ex.A.1 - agreement of sale is not proved to be genuine?
(2) Whether Ex.A.1 - agreement of sale is true and binding upon Defendants No.2 and 3?
(3) Whether obtaining sanction from competent Court for entering into the agreement for alienation of share of minors is not necessary as contended by the Appellant?
(4) Whether the 1st Defendant has committed breach of contract as contended by the Appellant/Plaintiff?
(5) In the facts and circumstances of the case, when the 1st Defendant passed away, whether the Plaintiff is entitled to the equitable relief of decree for specific performance or to what relief she is entitled?
13. Points No.1 and 2:
The suit property relates to house site 3,600 sq.ft along with terraced building thereon in Survey No.391/1, Sriram Cooperative Colony, Sanganur, Coimbatore. Questioning right of their mother to enter into agreement of sale, Defendants 2 and 3 filed Written statement contending that their paternal grandfather - Venkatapathy was the original owner of the suit property and that he died testate bequeathing the suit property to the issues of his only son - Jayaram and vesting in him only life interest without any right or power of alienation. Further case of Defendants is that by virtue of the Will executed by their paternal grandfather - Venkatapathy, after death of Jayaram, Defendants No.2 and 3 have succeeded to the suit property and are having all title, right and interest in the suit property and their mother - 1st Defendant had no right to enter into agreement of sale.
14. Even though the Defendants 2 and 3 have pleaded that their paternal grandfather - Venkatapathy had executed the Will bequeathing the suit properties to the children of his son - Jayaram and only giving life interest to Jayaram, the said Will was not produced nor any document was produced by the Defendants to substantiate the defence plea that their paternal grandfather - Venkatapathy died testate leaving a Will. It is seen from Ex.A.19 that Venkatalakshmi and Snehalatha have relinquished their right in favour of Defendant Nos.1 to 3.
15. In the recitals in Ex.A.1 - agreement of sale, it is categorically stated that Venkatapathy purchased suit property from Rangaswamy under sale deed dated 11.9.1990 and that Venkatapathy was the owner of the property. In Ex.A.1 - agreement of sale, it is also stated that after death of Venkatapathy, the property devolved upon (i) son Jayaram, (ii) wife Venkatalakshmi and (iii) daughter Snehalatha. The recital in Ex.A.1 is to the effect that after the death of Jayaram on 3.8.1991, mother Venkatalakshmi and Snehalatha have executed Ex.A.19 release deed dated 2.5.1992. As per Ex.A.19, Venkatalakshmi has relinquished her 1/12th share and Snehalatha has relinquished her right in the suit property. The relevant portion in Ex.A.19 reads thus:
@fhyk;brd;w b$auhk; mth;fs; kidtpa[k; 1 yf;fkpl;ltUf;F 1.V.VENKATALAKSHMI 2.S.SNEHALATHA 6-------- kUkfSk; 2 yf;fkpl;ltUf;F rnfhjuh; kidtpa[khd n$/gj;kpdpf;Fk; 2. 3 yf;fkpl;l ikdh;fSf;Fk; fPH;f;fhQqk; tPL tifawh brhj;jpy; v';fspy; 1 yf;fkpl;ltUf;F 1-12 g';F ghj;jpaija[k; 2 yf;fkpl;ltUf;F fPH;f;fhQqk; brhj;ijg; bghWj;J bfhz;lhLk; chpika[k; ,jd; K:yk; ,d;W eh';fs; tpLjiy bra;JbfhLj;J mjw;fhf c';fspd; brhe;j ifapUg;gpypUe;J 1 yf;fkpl;ltUf;F U:/40.000-= (U:gha; ehw;gjhapuk;) Kk; 2 yf;fkpl;lth; U:/15.000-= (U:gha; gjpide;jhapuk;) Kk; fPH;fz;l rhl;rpfs; Kd;gl bgw;Wf;bfhz;nlhk;/----------- v';fSf;F cz;lhd g{uz ghj;jpaija[k; chpika[k; fPH;f;fhQqk; brhj;ijg; bghWj;J ,jd;K:yk; c';fSf;F tpLjiy bra;Jtpl;lgoahy; ,dpnky;bfhz;L fPH;f;fhQqk; brhj;ij eP';fSk; c';fs; ikdh;fSk; jhdhjp tpdpka tpw;fpua';f fijaha; rh;t Rje;jpu ghj;jpa';fSld; Mz;L mDgtpj;Jf;bfhs;s ntz;oaJ/@
16. From Ex.A.1, following aspects emerge:
No Will was referred to in Ex.A.1;
Venkatalakshmi and Snehalatha have relinquished their right in favour of Defendants 1 to 3 indicating that Jayaram could not have been given life interest.
1st Defendant does have a share in the suit property.
17. Having regard to the recitals in Ex.A.1 and that Ex.A.19 release deed was executed in favour of Defendants 1 to 3, Defendants 2 and 3 cannot contend that the 1st Defendant had no right in the suit property. As rightly contended by the learned Senior Counsel, the defence plea of Will executed by Venkatapathy is not based on any evidence or materials.
18. In the Written Statement, Defendants have raised plea of forgery and that agreement was brought into existence by the Plaintiff by exploiting innocence of 1st Defendant, who was then a widow. In her evidence, D.W.1 denied signature of 1st Defendant - Padmini in Ex.A.1 - agreement of sale and D.W.1 raised plea of forgery. Referring to denial of signature of 1st Defendant by D.W.1, the trial Court held that execution of Ex.A.1 - agreement of sale was not properly proved.
19. Since the defence plea of forgery was raised burden was upon the Plaintiff to prove execution of Ex.A.1 agreement of sale. In his evidence, P.W.1 has stated that after negotiation and fixing the sale consideration at Rs.16,75,000/-, they have entered into agreement on 30.6.1994 and that she (P.W.1) has paid advance amount of Rs.3,20,000/- by means of Pay Order dated 29.6.1994 drawn on Vijaya Bank in the name of 1st Defendant. In her evidence, P.W.1 has categorically stated that 1st Defendant has signed in Ex.A.1 for herself and on behalf of minor Defendants Defendants No.2 and 3.
20. To prove execution of Ex.A.1, attesting witness Krishnamurthy Pattar, who also negotiated for the sale, was examined as P.W.3. P.W.3, who was performing Sri Hanuman pooja is known to both Plaintiff and Defendants. In his evidence, P.W.3 has stated that he knows Plaintiff and Defendants when they come to offer worship to Sri Hanuman and he used to perform poojas for them. P.W.3 has further stated that he has learnt from 1st Defendant about her intention to sell the suit property and he informed the same to Janardhanan, husband of Plaintiff and thereafter they have negotiated for sale of suit property. Reiterating the evidence of P.W.1, P.W.3 has also stated that sale consideration was fixed at Rs.16,75,000/- and that Plaintiff has paid advance of Rs.3,20,000/- by way of demand draft to the 1st Defendant. Much weight has to be attached to the evidence of P.W.3, who is an attesting witness and also negotiated for sale.
21. P.W.3 being an independent witness, absolutely there is no reason to doubt his evidence. P.Ws.1 and 3 have consistently spoken about the execution of Ex.A.1 agreement of sale and payment of advance amount of Rs.3,20,000/-. The oral evidence of P.Ws.1 and 3 is also corroborated by the conduct of parties and other evidence and circumstances. Payment of Rs.3,20,000/- by way of Demand Draft/ Pay Order is strengthened by Ex.A.2 (29.6.1994) - Pay Order and Ex.A.26 certificate issued by Vijaya Bank in respect of Pay Order. That apart, P.W.5 Manager of Vijaya Bank has also spoken about the issuance of Pay Order drawn in the name of Padmini (1st Defendant) and that the amount was paid by their bank. Evidence of P.W.5 coupled with Exs.A.2 and A.26 would amply strengthen the recitals in Ex.A.1 agreement of sale. Trial Court has not at all kept in view of this vital piece of evidence of payment of Rs.3,20,000/-. Trial Court was not right in ignoring this circumstance of filing H.M.G.O.P.No.433 of 1994.
22. As per the recitals in Ex.A.1 agreement of sale, 1st Defendant has to obtain permission from the Court for alienation of minor's share. Pursuant to the said recitals, 1st Defendant has also filed H.M.G.O.P.No.433 of 1994 on the file of District Court, Coimbatore seeking permission of the Court to transfer by sale the undivided 1/3rd share of her two minor daughters Defendants No.2 and 3. Filing of H.M.G.O.P.No.433 of 1994 is a strong piece of evidence strengthening the execution and genuineness of Ex.A.1 agreement of sale.
23. After 1st Defendant has withdrawn H.M.G.O.P.No.433 of 1994, Plaintiff has issued Ex.A.13 (28.11.1995) - legal notice calling upon the 1st Defendant to execute the sale deed and to perform her part of the contract. Ex.A.13 legal notice was received by the 1st Defendant for herself and on behalf of Defendants No.2 and 3 vide Exs.A.14 to A.16 - acknowledgment cards. Inspite of receipt of Ex.A.13 legal notice, the 1st Defendant has not chosen to reply. As alleged by the Defendants, if really Ex.A.1 agreement of sale was a forged one, the 1st Defendant would have definitely responded to Ex.A.13 legal notice. But that was to be so. The absence of any reply to Ex.A.13 legal notice is a strong circumstance militating against the plea of forgery put forth by the Defendants.
24. Based on D.W.1's casual denial of her mother's signature, the learned trial Judge held that genuineness of Ex.A.1 agreement of sale was not proved and raised doubts as to the genuineness of Ex.A.1. When D.W.1 was in the box and when she was confronted with the signature of her mother, she has denied the signature of her mother. At the time of Ex.A.1 agreement of sale, D.W.1 - 3rd Defendant was only aged about 12 years. Evidently, a girl of such young age would not have known about the negotiation and the agreement entered. Nor she would have known about the agreement.
25. Referring to the evidence of D.W.1, the trial Court ventured to compare the signature of 1st Defendant in Ex.A.1 and the learned trial Judge made a casual observation raising doubts as to the genuineness of Ex.A.1. Of course, Section 73 of Indian Evidence Act permits comparison of signature and writing of a person with others admitted or proved to have been written by that person. Even if no expert has been examined, the Court is competent to compare the admitted or proved wrongs with the disputed writing. But prudence demands that the Court should be extremely slow in venturing to form an opinion on the basis of some comparison. As to comparison of signature or writing by the Court, the Supreme Court in AIR 1979 SC 14 (STATE (DELHI ADMN.) Vs. PALIRAM) held that "Although there is no legal bar to the Judge using his own eyes to compare the disputed writing with the admitted writing, even without the aid of the evidence of any handwriting expert, the Judge should, as a matter of prudence and caution, hesitate to base his finding with regard to the identity of a handwriting which forms the sheet-anchor of the prosecution case against a person accused of an offence, solely on comparison made by himself. It is therefore, not advisable that a Judge should take upon himself the task of comparing the admitted writing with the disputed one to find out whether the two agree with each other; and the prudent course is to obtain the opinion and assistance of an expert."
26. The Court, as a matter of prudence and caution, should hesitate or be slow to base its findings solely on the comparison made by the Court. However, if there is an opinion, whether of the expert or any witness, the Court may apply its own observation by comparing the signatures or handwriting for giving a decisive weight and arrive at the conclusion. In our considered view, based on the casual denial of signature of Padmini by D.W.1, the learned trial Judge was not justified in venturing to form an opinion on comparison of signature and thereby brushing aside the consistent version of P.Ws.1 and 3.
27. When the findings of trial Court are based upon oral evidence, by and large, the Appellate Court will be slow to interfere. The Appellate Court will not interfere unless the Appellate Court is satisfied that a material aspect has escaped notice of the trial Court. This does not mean that when an appeal lies the appellate Court cannot reverse the finding of fact. It is a rule of practice when there is conflict of oral evidence on any matter and the decision of the lower Court hinges upon the credibility of the witnesses unless there is something to indicate that a special feature has escaped the notice of the trial Judge the appellate Court should not interfere with the finding of the trial Judge.
28. Observing that when the finding of fact has been recorded by the trial Court mainly on appreciation of oral evidence, it should not be lightly disturbed unless the approach of the trial court in appraisal of evidence is erroneous, in 2008(3) CTC 528 [Jagdish Singh v. Madhuri Devi], in the Supreme Court held as follows:-
"25. ..... the Appellate Court is expected, nay bound, to bear in mind a finding recorded by the trial Court on oral evidence. It should not forget that the trial Court had an advantage and opportunity of seeing the demeanour of witnesses and therefore, trial Court's conclusions should not normally be disturbed. No doubt, the Appellate Court possesses the same powers as that of the original Court, but they have to be exercised with proper care, caution and circumspection. When a finding of fact has been recorded by the trial Court mainly on appreciation of oral evidence, it should not be lightly disturbed unless the approach of the trial Court in appraisal of evidence is erroneous, contrary to well-established principles of law or unreasonable."
29. In the above said decision, in Paragraph 33, Supreme Court has framed three requisites for the Appellate Court to reverse the finding of trial Court as follows:-
33. Three requisites should normally be present before an Appellate Court reverses a finding of the trial Court:
(i) It apply its mind to reasons given by the trial court;
(ii) It has no advantage of seeing and hearing the witnesses; and
(iii)It records cogent and convincing reasons for disagreeing with the trial Court.
30. When there is a conflict of oral evidence on any matter in issue and its resolution turns upon the credibility of the witnesses, the general rule is that the Appellate Court should permit the findings of fact rendered by the trail Court to prevail unless it clearly appears that some special feature about the evidence of a particular witness has escaped the notice of the trial Court.
31. P.Ws.1 and 3 have consistently spoken in one voice about the execution of Ex.A.1 by the Plaintiff and 1st Defendant and payment of advance sale consideration of Rs.3,20,000/- as part of sale consideration , which is also strengthened by Ex.A.2 pay Order dated 29.6.1994 drawn in favour of 1st Defendant at Vijaya Bank. We are of the view that the trial Court was not right in brushing aside the consistent version of P.Ws.1 and 2. While analysing the oral evidence, the trial Court did not keep in view the other facts surrounding the circumstances fortifying the genuineness of Ex.A.1. Finding of trial Court that Ex.A.1 is not proved to be genuine is not based on evidence and that finding is liable to be set aside. On analysis of evidence of P.Ws.1 and 3 coupled with other materials on record, we hold that the execution of agreement of sale Ex.A.1 was well proved by the Plaintiff and Points No.1 and 2 are answered accordingly.
32. Point No.3:
As pointed out earlier, at the time of Ex.A.1 agreement of sale, the 2nd Defendant Anitha was aged 14 years and 3rd Defendant Swetha was aged 12 years. Since Defendants No.2 and 3 were then minors, a clause was incorporated in Ex.A.1 agreement that the 1st Defendant has to obtain permission of the Court for alienation of minor's share for execution of the sale deed. The relevant clause in Ex.A.1 reads as under:
,jdoapy;fhzqk; brhj;ij 3.4 yf;fkp;l;lth;fSf;fhf fpiuak; bra;j nrhh;l;oy; 2 yf;fkpl;lth; mDkjp bgw;W nkw;go cj;jput[g;go ikdh;fspd; tpfpjhr;rhubjhifia nfhh;l; cj;jut[g;go oghrpl; bra;jJ nghf ghf;fp cs;s fpiuaj;bjhifia nkw;go nfhh;l; cj;jut[ bgw;wJk;. fpiuag; gj;jpuk; vGjp hp$p!;lh; MFk; rkak; _hp$p!;l;uhh; mth;fs; Kd;dpiyapy; buhf;fk; bgw;Wf; bfhs;tjhff;fz;L nkw;go bfLtpw;Fs; 1 yf;fkpl;ltUf;fhtJk;. 1 yf;fkpl;lth; brhy;Yk; egh;fSf;fhtJk; xU fpiuakhfnth my;yJ gy fpiua';fshfnth vGjp hp$p!;lh; bra;J bfhLj;Jk;. nkny fz;lgo Rj;j RthjPdKk; bra;J bfhLf;f 2.3.4 yf;fkpl;lth;fs; xg;g[f;bfhz;oUf;fpwhh;fs;.
33. As per the above clause, the 1st Defendant has also filed H.M.G.O.P.No.433 of 1994 on the file of District Court, Coimbatore seeking permission of the Court to transfer by sale for a price of Rs.4 lakhs the undivided 1/3rd share of each of minors - Anitha and Swetha. In H.M.G.O.P.No.433 of 1994, one Mr.Thiagarajan, Managing Director of Southern Textiles Limited, Coimbatore and one Mr.C.V.Vijayakumar, who is a dealer in Pepsi Drinks for Madurai City, have filed objections to the effect that the suit property would easily fetch a price of more than Rs.20 lakhs to 30 lakhs and for want of proper contacts and connections, the guardian of the minors has filed petition seeking for permission to sell the property for a lesser price of Rs.12 lakhs. In their memo of objection, the objectors have raised strong objection for granting permission on the ground that the property would fetch more than Rs.20 lakhs to Rs.30 lakhs and raised an objection for grant of permission.
34. While H.M.G.O.P.No.433 of 2004 was pending and objectors have filed objection, noticing difficulties in getting the sale deed executed, Plaintiff has filed I.A.No.451 of 1995 under Order I Rule 10 of Civil Procedure Code to implead herself as a party Respondent in H.M.G.O.P proceedings. In the said impleading application, Plaintiff has brought it to the notice of the Court about the suit sale agreement for Rs.16,75,000/- and about payment of advance sale consideration of Rs.3,20,000/- by way of pay Order dated 29.6.1994 drawn in favour of 1st Defendant at Vijaya Bank as part of sale consideration. In the impleading petition, Plaintiff has further averred that after paying advance amount of Rs.3,20,000/-, she has been waiting all along and Plaintiff has also filed the documents along with the petition viz., (i) xerox copy of the sale agreement dated 30.6.1994; and (ii) xerox copy of Pay Order for Rs.3,20,000/- in favour of 1st Defendant drawn on Vijaya Bank. The 1st Defendant resisted the impleading petition contending that the Plaintiff is not a necessary party in H.M.G.O.P.No.433 of 1994. When the matter stood thus, 1st Defendant has withdrawn H.M.G.O.P. as not pressed.
35. The main contention of Respondents/Defendants is that in the absence of an order for permission in terms of Section 8 of Hindu Minority and Guardianship Act, ( in short, "HMG Act"), share of minors could not be compelled to be sold by virtue of an agreement of sale. Learned counsel for the Respondents placed reliance upon AIR 1994 KARNATAKA 271 (SMT.MANGALA VS. SMT.JAYABAI AND OTHERS), wherein the Court was considering the joint family property in the hands of a widow and her female children when no male member is existing. Finding that when there is no male member, it is not joint Hindu family property and that widow cannot act as Manager or natural guardian and meddle with the family property so as to bind interest of her minor female children, Division Bench of Karnataka High Court has held that in the absence of male member, the family property in the hands of widow and her female children cannot be characterised as Joint Hindu Family Property with a view to enjoin the widow to act as either Manager or as natural Guardian to meddle with the family property with a view to bind the interest of minor daughters who will have succeeded to the estate of their father by virtue of succession under the provisions of Hindu Succession Act, dehors the provisions of Section 8(3) of the Hindu Minority and Guardianship Act.
36. Countering the argument, the learned Senior Counsel for Appellant Mr.AR.L.Sudnaresan contended that even if agreement of sale stipulates that sanction from Court was to be obtained for transfer of minor's share in joint family property, obtaining sanction from competent Court as per agreement was not necessary when such sanction or permission was not necessary in law. It was further contended that though it might have been agreed to between the parties that sanction has to be obtained in respect of a minor's interest or sale it should not be overlooked that such stipulation was for the benefit of the purchaser and if the Plaintiff is prepared to purchase the same even without sanction from the Court it is not open for the Appellants to contend that in the absence of such sanction in respect of the minor's share the same cannot be compelled to be sold by enforcing the agreement of sale. In support of his contention, learned Senior Counsel placed reliance upon 1997(II) CTC 602 (K.LOGAMBAL AND 3 OTHERS VS. V.V.SAKUNTHALA AND 6 OTHERS), wherein it was held as under:
"This Question as to the necessity for obtaining the sanction of the District Court under Section 8 of the Hindu Minority and Guardianship Act in a matter of the kind in the case by mother of the minor child in respect of a property belongingto the joint family in the absence of the father, and in her capacity as the manager, and natural guardian came up directly for consideration before the Apex Court in the decision in Sri Narayan Bal and others and Sri Sridhar Sutar and others, (1996) 1CTC 390 : 1996 (1) Supreme 638."
37. Dealing with the said issue, the Supreme Court in Sri Narayan Bal and others and Sri Sridhar Sutar and others, 1996 (1) Supreme 638, has held thus:
"4. Section 6 of the Act inter alia provides that the natural guardians of a Hindu minor, in respect of the minors person as well as in respect of the minors property (excluding his or her undivided interest in joint family property), are in the case of a boy or an unmarried girl the father, and after him, the mother; provided that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother. Section 8 thereof inter alia provides that the natural guardian of a Hindu minor has power, subject to the provisions of this section, to do all acts which are necessary or reasonable and proper for the benefit of the minor or for the realization, protection or benefit of the minors estate; but the guardian can in no case bind the minor by a personal covenant. Furthermore the natural guardian shall not, without the previous permission of the court, mortgage or charge, or transfer by sale, gift, exchange or otherwise, any part of the immovable property of the minor or lease any part of such property for a term exceeding five years or for a term extending more than one year beyond the date on which the minor will attain majority. Any disposal of immovable property by a natural guardian, in contravention of sub-section (1) or sub-section (2), is voidable at the instance of the minor or any person claiming on behalf of the minor. Section 12 provides that where a minor has an undivided interest in the joint family property and the property is under the management of an adult member of the family, no guardian shall be appointed for the minor in respect of such undivided interest: Provided that nothing in this section shall be deemed to affect the jurisdiction of a High Court to appoint a guardian in respect of such interest."
38. The Supreme Court in the above said judgment has further held as follows:
"Under Section 8 a natural guardian of the property of the Hindu minor, before he disposes of any immovable property of the minor, must seek permission of the court. But since there need be no natural guardian for the minors undivided interest in the joint family property, as provided under Sections 6 and 12 of the Act, the previous permission of the court under Section 8 for disposing of the undivided interest of the minor in the joint family property is not required. The joint Hindu family by itself is a legal entity capable of acting through its Karta and other adult members of the family in management of the joint Hindu family property. Thus Section 8 in view of the express terms of Sections 6 and 12, would not be applicable where a joint Hindu family property is sold/disposed of by the Karta involving an undivided interest of the minor in the said joint Hindu family property. The question posed at the outset therefore is so answered."
39. The decision of the Division Bench of this Court in 1997 (II) CTC 602 was cited before the trial Court. However, the learned trial Judge did not choose to answer the issue as to whether obtaining sanction/permission of the Court was necessary or not and whether the non-obtaining of sanction of the Court was an impediment in execution of the sale deed. But the learned trial Judge side-tracked the issue by observing that the sale will not be in the interest and welfare of the minor children and that there are no recitals in Ex.A.1 agreement of sale that the sale is intended for the welfare of the minor children.
40. It is fairly well settled that under Section 8, a natural guardian of the property of the Hindu minor before he disposes of any immovable property of the minor, must seek permission of the court. But since there need be no natural guardian for the minor's undivided interest in the joint family property, as provided under sections 6 and 12 of the Act, the previous permission of the Court under Section 8 for disposing of the undivided interest of the minor in the joint family property is not required.
41. Even though such permission of the Court is not required for alienation of minor's undivided interest in the joint family property, in the instant case, parties have jointly incorporated the clause in Ex.A.1 - agreement of sale that such permission/sanction of the Court has to be obtained by the 1st Defendant for alienation of the minor's interest. We are of the view that at the time of entering into agreement, when parties have consciously incorporated such term insisting for sanction of the Court for alienation of the minors' share, now it is not open to the Plaintiff to turn round and contend that such permission was not required and it is only to protect the interest of the purchaser. This point is answered accordingly.
42. Point No.4:
A feeble attempt was made by the Defendants that the intended sale to the Plaintiff was not in the welfare and interest of the minors. According to the Defendants, the suit property would fetch more than Rs.40,00,000/- and while so, Ex.A.1 agreement of sale for Rs.16,75,000/-a is a very low amount and therefore intended sale was not for the welfare and the interest of Defendants No.2 and 3, who were then minors. To substantiate their plea that the sale consideration of Rs.16,75,000/- is very low, the Defendants have examined D.W.2 Pitchaiappar, who is a consultant in Civil Engineering. In his evidence, D.W.2 has stated that on the request of 3rd Defendant Swetha, he has inspected the suit property and he prepared the report and plan - Exs.B.2 and B.3. In his report, D.W.2 has assessed the value of the building at Rs.38,52,000/-. The said assessed value of Rs.38,52,000/- by D.W.2 was in the year 2000. Absolutely there is no evidence to show the value of the suit building in the year 1994 at the time when the parties have entered into agreement. As pointed out by the learned Senior Counsel for the Plaintiff, even in H.M.G.O.P.No.433 of 1994, the 1st Defendant has averred that the property would fetch around Rs.12 lakhs and while so it cannot be contended that the sale consideration of Rs.16,75,000/- being a lesser amount could not have been for the welfare of the minors. In our considered view, evidence of D.W.2 and his report and plan Exs.B.2 and B.3 as to the value of the building in 2000 is of no assistance to the Defendants.
43. The 1st Defendant has entered into Ex.A.1 agreement of sale. As elaborated earlier, P.W.1 has advanced Rs.3,20,000/-, which is fortified by the oral evidence of P.W.3 and by the recitals of Ex.A.1. Evidence of P.W.5 Manager of Vijaya Bank establishes the payment of sale advance of Rs.3,20,000/- under Ex.A.2 Pay Order. Ex.A.26 certificate issued by the Bank would also strengthen the case of Plaintiff as to the payment of advance of Rs.3,20,000/-.
44. Only as per the covenants in Ex.A.1 agreement of sale, 1st Defendant has filed H.M.G.W.O.P.No.433 of 1994 seeking permission of the Court to transfer the 1/3rd share of minors, which she has later withdrawn. As pointed out earlier, when Plaintiff has filed impelading Petition - I.A.No.451 of 1995 in H.M.G.O.P.No.433 of 1994, 1st Defendant has strongly resisted the same by filing counter and objecting to the impleading petition on the ground that the Plaintiff is not a necessary and proper party to H.M.G.O.P. As per the terms in Ex.A.1 agreement of sale, after obtaining permission of the Court and after getting income-tax clearance, the 1st defendant has to execute the sale deed. In our considered view, withdrawing of H.M.G.O.P.No.433 of 1994 is a clear act of breach of contract committed by the 1st Defendant.
45. In a suit for specific performance, the Plaintiff must allege and prove the continuous readiness and willingness to perform the contract on his/her part from the date of the contract. The onus is on the Plaintiff. The requirement of law is two-fold: (i) the Plaintiff must aver in the plaint and (ii) that she must prove by evidence that she has always been ready and willing to perform her part of the contract.
46. In the plaint, Plaintiff has averred that she was always ready and willing to perform her part of the contract. The plaintiff, who examined herself as P.W.1 has stated that she was always ready and willing to perform her part of the contract. In her evidence, P.W.1 has also stated that her husband - Janardhanam is doing business and that they are having means to pay the balance sale consideration. P.W.1 has stated that her mother was owning building in Kolar, Karnatkaa, which was let out to Food Corporation of India from which she is getting her share of rent of Rs.30,000/- per annum. P.W.4 - brother of Plaintiff has also spoken about the share of rent given to the Plaintiff. P.W.1 has also stated that they own a shop in Cheran Towers, Coimbatore, which was let out to P.w.2, who pays rent of Rs.3,000/- per month and has also paid advance of Rs.37,000/-. P.W.2 has also spoken about paying rent to the Plaintiff. At the time of agreement, Plaintiff has paid Rs.3,20,000/- i.e., around 20% of sale consideration as advance. By the oral evidence of P.Ws.1, 2 and 4, Plaintiff has also proved her means. To show her readiness and willingness, the Plaintiff has also issued Ex.A.13 notice dated 28.11.1995. Only the 1st Defendant has not chosen to send any reply. It is brought out in evidence that the Plaintiff was ready and willing to perform her part of the contract and she had necessary means to pay the balance amount and that it was the 1st Defendant, who was resiling from the contract.
47. Point No.5:
As per Section 20 of the Specific Relief Act discretion as to decreeing specific performance, grant of decree for specific performance of contract is not automatic and is one of the discretions of the Court and the Court has to consider whether it would be fair, just and equitable. But the discretion of the Court is not arbitrary. But the one of the sound and reasonable and discretion guided by Principles of Justice, equity and good conscience. In Section 20(2) of the Act, certain circumstances have been mentioned as to under what circumstances, the Court shall exercise such discretion. If under the term of the contract the Plaintiff gets an unfair advantage over the Defendant, the Court may not exercise its discretion in favour of the Plaintiff. So, also specific relief may not be granted if the Defendant would be put to undue hardship which he did not foresee at the time of agreement, if it is inequitable to grant specific relief, then also the Court would desist from granting a decree to the Plaintiff. In exercising discretion, court is obliged to take into consideration circumstances of the case, conduct of the parties and respective interests under the contracts.
48. The mother of Defendants 2 and 3, who were then minors, had entered into Ex.A.1 - agreement of sale in entirety of the property. Now mother has passed away and the Defendants No.2 and 3 cannot be compelled to execute the agreement of sale at this distant point of time. Having regard to the facts and circumstances of the case and that now the value of the property in Coimbatore had gone up, the decree for specific performance would cause undue hardship to the Defendants 2 and 3. On the other hand, by declining the relief of specific performance, no serious prejudice to the Plaintiff would be caused. The interest of justice would be sub-served by directing the Defendants 2 and 3 to repay the amount of Rs.3,20,000/-.
49. While declining the decree for specific performance, the learned trial Judge did not properly analyse the payment of sale advance of Rs.3,20,000/-. Absolutely there are no reasonings of the trial Court for brushing aside Ex.A.2 Pay Order and Ex.A.26 certificate and the evidence of P.W.5. Faced with overwhelming evidence as to payment of advance sale consideration/advance of Rs.3,20,000/-, the Defendants are to be necessarily directed to refund the advance amount of Rs.3,20,000/- with interest at the rate of 7.5 percent from the date of filing of the suit till the date of realisation.
50. The only point that remains to be considered is what is the relief to be granted to the Plaintiff. The 1st Defendant mother is entitled to 1/3rd share. Admittedly, the amount of Rs.3,20,000/- was paid to the 1st Defendant and was received by her. Upon analysis of material on record, the interest of justice would be met if Respondents/Defendants 2 and 3 are directed to refund the amount of Rs.3,20,000/- together with interest at 7.5 percent from the date of filing of the suit till the date of realisation.
51. Costs:-
The next question falling for consideration is, as to whether Plaintiff would be entitled to costs or only proportionate costs for the advance amount ordered to be refunded. The general rule is that the successful party is entitled to costs, unless he is guilty of misconduct, negligence or omission. The discretionary power as to awarding of costs has to be judicially exercised.
52. Expressing concern over the order of Courts directing parties to bear their own costs, which leads to filing of frivolous suits and frivolous defence, in (2005) 6 SCC 344 (SALEM ADVOCATE BAR ASSOCIATION VS. UNION OF INDIA), the Supreme Court has held as under:
"37. Judicial notice can be taken of the fact that many unscrupulous parties take advantage of the fact that either the costs are not awarded or nominal costs are awarded against the unsuccessful party. Unfortunately, it has become a practice to direct parties to bear their own costs. In a large number of cases, such an order is passed despite Section 35(2) of the Code. Such a practice also encourages the filing of frivolous suits. It also leads to the taking up of frivolous defences. Further, wherever costs are awarded, ordinarily the same are not realistic and are nominal. When Section 35(2) provides for cost to follow the event, it is implicit that the costs have to be those which are reasonably incurred by a successful party except in those cases where the court in its discretion may direct otherwise by recording reasons therefor. The costs have to be actual reasonable costs including the cost of the time spent by the successful party, the transportation and lodging, if any, or any other incidental costs besides the payment of the court fee, lawyers fee, typing and other costs in relation to the litigation. It is for the High Courts to examine these aspects and wherever necessary make requisite rules, regulations or practice direction so as to provide appropriate guidelines for the subordinate courts to follow."
53. Even though we have held that execution of Ex.A.1 has been proved and the Plaintiff was ready and willing to perform her part of the contract, on equitable grounds, we have declined relief of specific performance and ordered refund of advance of Rs.3,20,000/-. The Plaintiff has paid court fee on the entire sale consideration of Rs.16,75,000/- at the rate of 7.5 percent. As discussed earlier, Defendants have taken extreme stand of plea of forgery. By withdrawing H.M.G.O.P.No.433 of 1994, the 1st Defendant has committed breach of contract. In such circumstances, while ordering the refund of advance amount of Rs.3,20,000/- with interest at the rate of 7.5 percent, Defendants 2 and 3 are to be held liable to pay costs to the Plaintiff throughout.
54. In the result, the judgment and decree dated 18.5.2005 made in O.S.No.632 of 2004 on the file of Additional District and Sessions Judge- Fast Track Court No.I, Coimbatore is set aside and the Appeal is partly allowed. It is held that Respondents/Defendants No.2 and 3 are liable to pay Rs.3,20,000/- with interest at the rate of 7.5 percent per annum from the date of plaint till the date of realisation. In view of our reasonings in Paras (51) to (53), Respondents/Defendants No.2 and 3 are directed to pay costs throughout i.e., in the suit as well as this appeal to the Plaintiff.
[R.B.I.,J] [M.V.,J]
24.03.2010
Index:Yes
Internet:Yes
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Copy to:
Additional District and Sessions Judge-
Fast Track Court No.I,
Coimbatore
R.BANUMATHI, J.
and
M.VENUGOPAL,J.
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Judgment in
A.S.No.773 of 2005
24.03.2010
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