A Noorjahan v. Ayisumma and others

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: P. B. Suresh Kumar
Judgment Date: 2016-03-01
Court Decision / Holding: The second appeal is dismissed; the High Court affirms the appellate order denying specific performance and closing interlocutory applications.
Final Disposition: Second Appeal Dismissed

Parties to the Case

Appellants / Petitioners

A Noorjahan

Respondents

Ayisumma
Safiya
Sajeena
Nadheera
Fareedha
Roshna

Legal Representation & Advocates

Counsels for Petitioners

• Rajesh Sivaraman Kutty
• Philip Mathew

Counsels for Respondents

• Jacob Sebastian

Case Synopsis & Summary

The Regular Second Appeal concerns Noorjahan's suit for specific performance of a sale of one cent of property at Palakkad. Noorjahan claimed the defendant, Sarfuddin, promised to sell the property to her on 23 September 1998 for Rs 15,000, having received Rs 5,000 as advance. The agreement is Ext.A2, which provided that the balance would be paid within 11 months. Noorjahan argued she was ready and willing to perform her part, but the defendant allegedly refused to convey title. The defendant denied the claim, alleging that Ext.A2 is a fabrication and that the plaintiff used blank signed papers to create the document while borrowing Rs 5,000. The trial court accepted the plaintiff's case and decreed the suit for specific performance. On appeal, the appellate court accepted the defendant’s defense about hardship and, invoking Section 20(2)(b) of the Specific Relief Act, declined to grant specific performance, ordering only a refund of Rs 5,000. Noorjahan challenged the appellate order in RSA No. 553 of 2009. The High Court held that, regardless of pleadings, it is the court’s duty to consider whether the plaintiff is entitled to discretionary relief under Section 20, though it ultimately dismissed the appeal. The judgment cites Prakash Chandra v. Narayan to discuss issue framing but finds no substantial question of law, affirming the appellate decision and closing interlocutory applications.

Provisions of Law Cited

Section 20 of the Specific Relief ActSection 20(2)(b) of the Specific Relief Act

Submissions & Arguments

Contentions of Appellants / Petitioners

Appellant contends that the defendant did not claim the benefit of Section 20(2)(b) and that there was no issue framed in the suit regarding such relief. He relies on Prakash Chandra v. Narayan (AIR 2012 SC 2826) to argue that an issue framed under Section 20 should be decided; the court should examine whether discretionary relief of specific performance is available. The appellant asserts readiness and willingness to perform the contract Ext.A2, and argues that hardship to the defendant’s family cannot automatically bar specific performance. He claims that Section 20 should be applied to grant relief where appropriate, and that the approach of the appellate court denying specific performance was erroneous.

Contentions of Respondents

Respondents contend Ext.A2 is a fabrication and that the plaintiff misused blank signed papers. The defendant’s family, residing on the plaint schedule property, would suffer hardship if specific performance were granted, whereas non-performance would not cause similar hardship to Noorjahan. The appellate court found that enforcement would cause inequitable hardship to the defendant’s wife and daughters, justifying denial of specific performance under Section 20(2)(b) and ordering refund of Rs.5,000. The respondents argued that the trial court’s findings were correct and that equity favors allowing the defendant to retain the property while repaying the advance; they urged the High Court to affirm the appellate decision and dismiss the appeal, as no substantial question of law arises for interference. They maintained that the balance of convenience supports the denial of specific performance.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Prakash Chandra v. Narayan	AIR 2012 SC 2826	Mentioned Only	Cited in support of the argument on issue framing under Section 20; used as persuasive authority but not applied as a binding ruling in this decision.

Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **TUESDAY, THE 1ST DAY OF MARCH 2016/11TH PHALGUNA, 1937** ## **RSA.No. 553 of 2009 (G)** ## **-----------------------------** **AS 184/2004 OF IST ADDL.DISTRICT COURT, PALAKKAD DATED 27-03-2009 OS 558/2001 OF MUNSIFF COURT, PALAKKAD DATED 31-05-2004** **------------------** ## **APPELLANT/RESPONDENT/PLAINTIFF:** **-------------------------------------------------------** **A.NOORJAHAN, W/O.MUHAMMED BASHEER A., AGED 50 YEARS, KADAMKODE, KARINGARAPULLY AMSOM, PALAKKAD TALUK, PALAKKAD DISTRICT.** **BY ADVS. SRI.RAJESH SIVARAMANKUTTY SRI.PHILIP MATHEW** ## **RESPONDENT(S)/SUPPL. APPELLANTS 2 TO 7 (LRS OF DECEASED 1ST APPELLANT/DEFENDANT:** **-------------------------------------** **1. AYISUMMA, W/O.LATE SARFUDHIN, AGED 50 YEARS, RESIDING AT 17/66, MANAPPULIKAVU, CHITTUR ROAD, EAST YAKKARA, PALAKKAD TALUK, PALAKKAD DISTRICT.** **2. SAFIYA, D/O.LATE SARFUDHIN,** - **AGED 33 YEARS, RESIDING AT 17/66, MANAPPULIKAVU, CHITTUR ROAD, EAST YAKKARA, PALAKKAD TALUK, PALAKKAD DISTRICT.** **3. SAJEENA, D/O.LATE SARFUDHIN, AGED 31 YEARS, RESIDING AT 17/66, MANAPPULIKAVU, CHITTUR ROAD, EAST YAKKARA, PALAKKAD TALUK, PALAKKAD DISTRICT.** **4. NADHEERA, D/O.LATE SARFUDHIN,** - **AGED 29 YEARS, RESIDING AT 17/66, MANAPPULIKAVU, CHITTUR ROAD, EAST YAKKARA, PALAKKAD TALUK, PALAKKAD DISTRICT.** **5. FAREEDHA, D/O.LATE SARFUDHIN, AGED 25 YEARS, RESIDING AT 17/66, MANAPPULIKAVU, CHITTUR ROAD, EAST YAKKARA, PALAKKAD TALUK, PALAKKAD DISTRICT.** **PJ** **....2/-** **..2..** ## **RSA.No. 553 of 2009** **-----------------------------** ## **6. ROSHNA, D/O.LATE SARFUDHIN,** **AGED 22 YEARS, RESIDING AT 17/66, MANAPPULIKAVU, CHITTUR ROAD, EAST YAKKARA, PALAKKAD TALUK, PALAKKAD DISTRICT.** **BY ADV. SRI.JACOB SEBASTIAN** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 01-03-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **PJ** ## **P.B.SURESH KUMAR, J.** **= = = = = = = = = = =** ## **R.S.A.No.553 of 2009.** ## **= = = = = = = = = = =** Dated this the 1[st] day of March, 2016. ## **J U D G M E N T** The plaintiff in a suit for specific performance is the appellant in this second appeal. 2. The suit property measuring one cent belongs to the defendant. The case of the plaintiff is that the defendant had agreed to sell the suit property to the plaintiff on 23.9.1998 for a sum of Rs.15,000/-, after receiving a sum of Rs.5,000/- towards the advance sale consideration. Ext.A2 is the agreement for sale relied on by the plaintiff. Ext.A2 provides that the balance sale consideration shall be paid by the plaintiff to the defendant within 11 months. It is alleged by the plaintiff that though the plaintiff was ready and willing to discharge her obligations under Ext.A2 agreement, the defendant was not willing to convey the suit property. The defendant resisted **RSA.No.553/2009.** 2 the suit. According to the defendant, he had borrowed a sum of Rs.5,000/- from the plaintiff and the plaintiff has fabricated Ext.A2 agreement making use of the blank signed papers entrusted by him to the plaintiff while borrowing the amount. 3. The trial court rejected the contentions raised by the defendant and decreed the suit. The defendant challenged the decision of the trial court in appeal. Though the appellate court confirmed the findings rendered by the trial court in all respects, it declined the decree of specific performance sought by the plaintiff holding that the performance of Ext.A2 agreement for sale would involve hardship to the defendant and that the non-performance of the said agreement would not involve any hardship to the plaintiff. In other words, the appellate court granted the defendant the benefit of Section 20(2)(b) of the Specific Relief Act. Paragraph 11 of the appellate judgment dealing with the said aspect reads thus: **RSA.No.553/2009.** 3 “11.The evidence of DW1 shows that he along with his family has been residing in the house on the plaint schedule property measuring one cent, that he has got three unmarried daughters, and that he does not have financial capacity to construct another house. The evidence of PW1 shows that when Ext.A2 was executed, the defendant along with his family was residing in the house on the plaint schedule property covered by Ext.A2, and that the defendant had been conducting tea shop in the plaint schedule property. There is nothing on record to show that the defendant has got any other property than the plaint schedule property. The evidence of PW1 further shows that he does not know whether the defendant has financial capacity to purchase another building for his residence. His evidence also shows that the defendant has got five daughters of them three daughters have attained the age of marriage, and that the marriage of two daughters has already taken place. The evidence adduced in this case shows that the marriage of three daughters has not taken place. During the pendency of this appeal, the defendant died. Now it appears that the wife and unmarried daughters of the defendant have been residing in the house on the plaint schedule property. Admittedly, they have no other property to reside. In the circumstances, it appears that the performance of Ext.A2 contract would involve hardship on the wife and daughters of the deceased defendant, whereas its nonperformance would involve no such hardship on the plaintiff. Having regard to the entire facts and circumstances of this case, it appears that the defendant entered into Ext.A2 contract under the circumstances which make it inequitable to enforce specific performance. In the circumstances, the decree for specific performance of the contract for sale of the plaint schedule property cannot be granted. However, the respondents are liable to refund the advance amount of Rs.5,000/-.” **RSA.No.553/2009.** 4 The plaintiff, who is aggrieved by the said decision of the appellate court, has thus come up in this second appeal. 4. The learned counsel for the appellant contended that the defendant has not claimed in the written statement the benefit of Section 20(2)(b) of the Specific Relief Act. He also contended that there was no issue framed in the suit as regards the benefit, if any, due to the defendant under Section 20(2)(b) of the Specific Relief Act. The learned counsel for the appellant also relied on the decision of the Apex Court in _**Prakash Chandra v. Narayan**_ (AIR 2012 SC 2826) in support of his contention that there should have been an issue framed in the suit as regards the benefit, if any, due to the defendant under Section 20(2)(b) of the Specific Relief Act. 5. I do not find any substance in the arguments advanced by learned counsel for the appellant. It is the duty of every court dealing with a suit for specific performance to consider whether on the facts of the given **RSA.No.553/2009.** 5 case, the plaintiff is entitled to the discretionary relief of specific performance having regard to the provisions contained in Section 20 of the Specific Relief Act. As such, the contention that the defendant has not claimed the benefit of Section 20(2)(b) of the Specific Relief Act and therefore he is not entitled to the same is liable to be rejected. Coming to the decision of the Apex Court in _**Prakash Chandra v. Narayan**_ (supra), it is seen that a specific issue was not raised in the said case as regards the benefit, if any, which the plaintiff in the said case was entitled to under Section 20 of the Specific Relief Act. However, as far as the present case is concerned, the issue raised namely, whether the plaintiff is entitled to get a decree for specific performance of the contract, takes in within its scope, according to me, the issue as to whether the defendant is entitled to the benefit of Section 20 of the Specific Relief Act also. There is no question of law, much less any **RSA.No.553/2009.** 6 substantial question of law involved in this matter. The second appeal, in the circumstances, is devoid of merits and the same is accordingly, dismissed. All the interlocutory applications in the appeal are closed. _**Sd/-**_ **JUDGE.** **P.B.SURESH KUMAR,** _**Kvs/-**_ _**// true copy //**_ _**PA TO JUDGE.**_