Raman (Dead) By L.R.S. vs R. Natarajan

CIVIL APPEAL NO. 6554 OF 2022 (@ Special Leave Petition (C) NO.25554 OF 2018)

RAMAN (DEAD) BY LRS. …APPELLANT(S)

VERSUS R. NATARAJAN ...RESPONDENT(S)

JUDGMENT

Leave granted.

2. The suit for specific performance of an Agreement of Sale of

an immovable property, filed by the respondent herein, was

decreed by the Trial Court but the said decree was reversed by the

First Appellate Court. However, the High Court reversed the

Judgment and decree of the First Appellate Court and restored the

decree for specific performance granted by the Trial Court.

Aggrieved by the same, the legal representatives of the original

defendant are on appeal.

3. We have heard Mr. G. Sivabalamurugan, learned counsel for

the appellants and Mr. S. Nandakumar, learned counsel for the Signature Not Verified Digitally signed by NEETA SAPRA Date: 2022.09.13 16:34:27 IST Reason:

respondent.

1

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 sale 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;

 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

2 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

Court framed the following issues;

“(i) Is the Agreement of Sale dated 19­8­93 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,

3  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 A­2 to A­5, 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 specific performance.

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. A­1 – sale 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

4 relying of Ex.A.2 to hold that suit is barred by limitation.”

10. What was recorded as above was not actually an answer 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. However,

the defendant did not enter into any agreement with his brother’s

wife. On the other hand, the defendant chose to deny the very

execution 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

5 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.

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

Limitation Act, 1963 is three years, “from the date fixed for the

performance or if no such date is fixed, when the plaintiff has notice

that the performance is refused.”

6

15. But in the entire memorandum of grounds of second appeal

filed by the respondent­herein 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

limitation revolving around Article 54 of the Schedule to the

Limitation 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 against a person

compelling him to enter into an agreement with a third party and

seek specific relief against such a third party. In other words, the

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.

7

17. The High Court ought to have seen that the specific

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.

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 into an

agreement with the defendant. In other words, the performance of

the first part of the obligation, which we have indicated in the

preceding 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.

8

xxx xxx xxx”

19. From the pleadings on record, it appears that the case on

hand will not even be covered by sub­sections (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 sub­sections (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 3 rd 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 only an imperfect title, the purchaser or lessee (subject to the other provisions of this Chapter), has the following rights namely:-

(a) xxx xxx xxx

9

(b) where the concurrence of other persons is necessary 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 other 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;”

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.

…………………………….J. (Indira Banerjee)

…………………………….J. (V. Ramasubramanian)

New Delhi September 13, 2022

10