C. P. Jalajarajan v. P. Ramu and Rankaraj

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE SATHISH NINAN** **WEDNESDAY, THE 10[TH] DAY OF AUGUST 2023 / 19TH SRAVANA, 1945 RFA NO. 475 OF 2013** **AGAINST THE DECREE AND JUDGMENT DATED 15.01.2013 IN OS 66/2009 OF SUB COURT, OTTAPPALAM** **-----** ## **APPELLANT/DEFENDANT:** C.P.JALAJARAJAN, AGED 40 YEARS, S/O.CHENANGAMPARAMBIL PARAMESWARAN, KILLANNOOR VILLAGE, KOZHIKKUNNU DESOM, MEDICAL COLLEGE P.O., VARADIYAM VIA, THRISSUR TALUK, THRISSUR DISTRICT. BY ADVS. SRI.SANTHARAM.P SMT.REKHA ARAVIND ## **RESPONDENTS/PLAINTIFFS:** 1 P.RAMU, AGED 45 YEARS, S/O.PONNUSWAMY, RESIDING AT KOTTATHARA, CHANTHAKKADA, AGALI VILLAGE, DESOM, MANNARKKAD TALUK, PALAKKAD DISTRICT. 2 RANKARAJ, AGED 40 YEARS, S/O.LAKSHMANAN, RESIDING AT NAIKARPADI, AGALI VILLAGE, DESOM, MANNARKKAD TALUK, PALAKKAD DISTRICT. BY ADV SRI.JACOB SEBASTIAN THIS REGULAR FIRST APPEAL HAVING COME UP FOR HEARING ON 10.08.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **SATHISH NINAN, J.** **= = = = = = = = = = = = = = = = = = RFA No.475 of 2013** **= = = = = = = = = = = = = = = = = = Dated this the 10[th] day of August, 2023** ## **J U D G M E N T** The decree of specific performance of an agreement for sale is under challenge by the defendant. 2. As per Ext.A1 agreement dated 06.07.2008, the defendant agreed to convey 12 acres of property described as item Nos.1 to 3 in Ext.A1, to the plaintiffs for a total sale consideration of ` 6,50,000/-. An amount of ` 50,000/- was paid towards advance sale consideration. The period fixed for performance was three months. On 16.09.2008, a further advance of ` 50,000/- was paid. Subsequently the plaintiffs realised that the title deed of item Nos.2 and 3 stands in the name of plaintiff's mother, and also that the said property is a vested forest. Thereupon the plaintiffs sought enforcement of the contract with regard to item 1 in Ext.A1 agreement on payment of the proportionate consideration. It was not heeded to by the **RFA No.475 of 2013** -: 2 :- defendant. It is accordingly that the suit was filed. 3. The defendant contended that he was always ready and willing to perform the contract and that the sale deed in respect of item Nos.2 and 3 in Ext.A1 shall be got executed by the mother. The plaintiffs' allegation that the defendant suppressed the fact that the items 2 and 3 are forest land and that the sale deed relating to the property stands in the name of the mother, were denied. It was also contended that the plaintiffs were aware of the title of the properties since they were handed over copy of the title deeds even at the time of entering into contract. 4. The trial court, on the basis of the Commissioner's Report held that, items 2 and 3 in Ext.A1 agreement are forest land. It was found that the plaintiffs had performed their part of the contract. It was also held that the defendant suppressed from the plaintiffs regarding the nature of the property and **RFA No.475 of 2013** **==> picture [34 x 9] intentionally omitted <==** title. Before the trial court, during the course of final arguments, the counsel appearing for the plaintiffs submitted that the plaintiffs are prepared to take conveyance of item No.1 in Ext.A1 for the entire sale consideration as fixed in Ext.A1. Based upon the said submission, the Court granted a decree for specific performance with regard to item No.1 in Ext.A1 for the total sale consideration fixed in Ext.A1. 5. Heard Sri.Santharam P., the learned counsel for the appellant-defendant and Sri.Jacob Sebastian, the learned counsel for the respondents-plaintiffs. 6. The following points arise for determination: - _(i)_ Is the finding of the trial court with regard to suppression of the fact that the items 2 and 3 are forest land and that the sale deed relating to the property stands in the name of the mother, is sustainable on evidence? **RFA No.475 of 2013** -: 4 :- _(ii)_ Is the finding of the trial court that the plaintiffs had performed their part of the contract and thus the breach was committed by the defendant, based on materials? _(iii)_ Are the plaintiffs entitled for specific performance with regard to part of Ext.A1 agreement? _(iv)_ Exercise of discretion under Section 20 of the Specific Relief Act? 7. Before I proceed to discuss on the points, it needs to be noted that the suit is filed only in respect of item No.1 in Ext.A1 agreement. The said item alone is described in the plaint schedule. The plaintiffs seek for specific performance with regard to the said item on payment of the proportionate sale consideration. 8. The suit has been filed on the allegation that the defendant suppressed from the plaintiffs that the sale deed relating to item Nos.2 and 3 stands in the name of the mother and also that it is a forest land. **RFA No.475 of 2013** **==> picture [34 x 9] intentionally omitted <==** The trial court has found in favour of such claim. However, the categorical admission of the second plaintiff in his cross examination while examined as PW1 have been over looked by the court. He has deposed that the first plaintiff is a real-estate broker and he knows all aspects regarding land dealings, that the plaintiffs had visited the properties and the agreement was entered into after they were convinced of the same. He has deposed that at the time of their visit they found forest jandas at the site. He also admitted that before entering into the agreement they had seen the title deeds relating to the properties and were convinced of the same. He has further deposed that in relation to the forest land, he was required to get release and NOC from the Forest Department. He has also admitted that at the time of entering into agreement, copies of both the title deeds were given to them and they were convinced by the same. The relevant portions of his deposition are **RFA No.475 of 2013** -: 6 :- ## as under: - “.... cm-ap-hn-\v Ø-e-¡-¨-h-S-am-Wv sXm-gnð. ..... cm-aphpw Rm\pw Iq-Sn Ø-ew t\m-¡n t_m-²y-s¸-«-m-Wv I-cm-dp ïm-bXv. ..... B k-a-b-¯pX-só t^m-d-kv-äv P-ïIÄ Ø-e-¯p-ïm-bn-cpóp. t^m-d-kv-änð \nópw hn-«p-In-S-¡pó Ø-e-am-Wv I-cmÀ sN-bv-XXv. I-cmÀ {]-Im-cw hn-e \nÝ-bn-¨-Xpw R-§Ä I-ïXm-b Ø-e-¯n-\mWv. I-cm-dn-\pap-¼v Ø-e-¯n-sâ tc-JIÄ I-ïn-«pïv. B tc-J-IÄ ] cn-tim-[n-¨p t_m-²y-s¸-«-Xn-sâ A-Sn-Øm-\-¯n-em-Wv I- cm-dnð tc-Jm-hn-h-c-§Ä tNÀ-¯Xv. I-cmÀ Zn-h-k-am-Wv tc-J-IÄ ]cn-tim-[n-¨Xv. ..... Ø-ew t]m-bn ]cn-tim-[n-¨ ti-j-am-Wv {]-Xn-bp-am-bn _-Ô-s¸-«-Xv. cm-ap-hn-\v Ø-ew C-S-]m-Sn-s\ kw-_-Ôn-¨v Fñm Im-cy-§fpw A-dn-bmw. ..... 5 G-¡À 30 skâ v Ø-ew {]-Xn-bp-sS A-½ k-tcm-Pn-\n¡-h-Im-i-s¸-«-XmWv. ..... {]-Xn-bp-sS A-½-¡-h-Im-i-s¸-« Ø-ew t^m-d-kv-äv Ø-e-am-sWópw Im-Wn-¡pó notification I-ïn-«pïv. t^m-d-kv-än-\-h-Im-i-s¸-« Ø-ew t^m-d-kv-änð \nópw hn-«p-hm-§n NOC hm-§-W-sa-óm-bncp-óp [mc-W. I-cmÀ {]-Im-cw NOC hm-t§-ï _m²y-X F-\n-¡m-bn-cpóp. ..... I-cmÀ k-a-b-¯v 2 B-[m-c-§fpw t\m-¡n t_m-²y-s¸-Sp-Ibpw A-Xn-sâ t^m-t«m-kv-äm-äv ]- IÀ-¸p-IÄ X-cn-Ibpw sN-bv-Xn-cpóp. .....” **RFA No.475 of 2013** **==> picture [34 x 9] intentionally omitted <==** In the light of the above it is evident that at the time of entering into Ext.A1 agreement the plaintiffs were aware that items 2 and 3 in the agreement are vested forest and also that the sale deed in respect of items 2 and 3 stands in the name of the defendant's mother. As stated in Ext.A1 agreement, it was for the plaintiffs to clear the documents relating to the properties including NOC from the Forest Department and this was admitted by PW1. Rather unusually and pertinently, in Ext.A1 agreement, the responsibility to get clear documents in respect of the title over the properties is burdened on the purchasers-plaintiffs. Therefore, from the oral and documentary evidence adduced it is clear that the agreement was to convey the property after getting release and NOC from the Forest Department. The finding of the court that the defendants suppressed facts, is on the evidence unsustainable. **RFA No.475 of 2013** -: 8 :- 9. The trial court found that the plaintiffs had performed their part of the contract and that the defendant was in fault. A reading of Ext.A1 agreement shows that the obligation cast on the defendant is only to convey an encumbrance free property to the plaintiffs on payment of the balance sale consideration by the plaintiffs. On the other hand, the obligations of the plaintiffs are to set right the records relating to the property at the expense of them and to pay tax and obtain receipt, possession certificate, NOC and other documents. The obligation to measure the property is also on the plaintiffs. The agreement further provided that if there occurs delay in obtaining NOC and other records, the plaintiffs are to intimate the defendant in writing and the period of agreement could be extended on mutual consent. Therefore, it is evident that parties were aware that documents relating to the property were worth to be set right after which alone Ext.A1 agreement **RFA No.475 of 2013** -: 9 :- could be proceeded with further. It is not in dispute that but for tax receipt and possession certificate relating to item-1 in the agreement, no other documents are obtained by the plaintiffs. The trial court has brushed aside the same stating that since the property is a forest land compliance with the other conditions is an impossibility. On the other hand, the court finds that the contract did not go through due to the noncooperation of the defendant. As noticed earlier PW1 has admitted receipt of copies of the sale deeds from the defendant at the time of entering into agreement. There is no basis for the finding that the sale did not go through due to non-cooperation of the defendant. Therefore, the said finding by the trial court is liable to be interfered with. 10. Now coming to the question as to whether the plaintiffs can seek for part performance of the contract that is, in relation to the item No.1 in Ext.A1 **RFA No.475 of 2013** -: 10 :- agreement alone, Ext.A6 is the notice issued by the plaintiffs to the defendant wherein they required performance of Ext.A1 agreement confining it to item No.1 therein and for a proportionate consideration. In the suit also, the plaintiffs have scheduled only item No.1 in Ext.A1 as the plaint schedule property and sought for specific performance in respect of that item. In the plaint, it is claimed that he is liable to pay only the proportionate consideration for the extent of the plaint schedule property. It is not in dispute that the price fixed for the property was not on centage basis but for the entire 12 acres covered under Ext.A1. Ext.A1 recites so and is further admitted by PW1. The relevant portion of the deposition of PW1 in his crossexamination reads thus: - “sam-¯w Ø-e-¯n-\mWv 6,50,000/--- I hn-e \n-Ý-bn-¨-Xv. skâ v I-W-¡n\ñ.” **RFA No.475 of 2013** ## -: 11 :- 11. The learned counsel for the respondent – plaintiff relied upon Section 12(4) of the Specific Relief Act, 1963 and contended that the plaintiff is entitled for specific performance of the part of the contract which relates to the plaint schedule property which is item No.1 in Ext A1 agreement. Section 12(4) reads thus: ## _“_ _**12. Specific performance of part of contract** .⸺_ _(1) xxxxx_ _(2) xxxxx_ _(3) xxxxx_ _(4) When a part of a contract which, taken by itself, can and_ _ought to be specifically performed, stands on a separate and independent footing from another part of the same contract which cannot or ought not to be specifically performed, the Court may direct specific performance of the former part.”_ 12. Section 12(4) applies when part of a contract stands on a separate and independent footing from the remaining part of the contract which cannot be **RFA No.475 of 2013** -: 12 :- performed. In other words, the contract must be a divisible one and not a single whole. Section 12(4) of the Specific Relief Act, 1963 corresponds to Section 16 of the Specific Relief Act, 1877. Referring to the provision the Madras High Court in _**Abdul Aziz v. Abdul Sammad, AIR 1937 Mad. 596**_ held that, when the contract is not divisible into two parts, the Court cannot substitute a new bargain and enforce a new contract. Referring to corresponding provision under the 1877 Act a Division Bench of the Madras High Court in _**Parthasarathi Mudaliar v. Venkata Kondiah Chettiar (AIR 1965 Madras 188)**_ explained the ingredients of the Section thus: _“To make S 16 applicable, it has to be shown (1) that the contract can be split up into parts (2) that there is a part of the contract which taken by itself can and ought to be specifically performed and (3) that the said part stands on a separate and independent footing from the other part of the same contract. Before a court can exercise the power given in the section, it must have before it some material tending to establish these propositions.”_ **RFA No.475 of 2013** -: 13 :- Whether a contract is divisible or not depends on the agreement involved in each case and a uniform rule cannot be laid. In the case at hand, a reading of Ext A1 indicates that though three items of properties are separately mentioned, the agreement is to sell the entire property in one lot fixing the total consideration for the entire extent. As noticed earlier, quite different from ordinary sale agreements, the obligation has been cast on the purchaser to set right the documents relating to the property including NOC from the Forest Department and to get the sale deed executed on payment of balance consideration. The parties only intended a performance of the agreement as a whole and in one lot. Therefore, this is not a case where Section 12(4) of the Specific Relief Act is attracted. 13. The learned counsel for the respondentplaintiff would argue that, the appellant is not put to **RFA No.475 of 2013** -: 14 :- prejudice in any manner since the decree granted by the Court requires the plaintiff to pay the entire agreed sale consideration for getting conveyance of merely one item of property in Ext.A1. Therefore, the defendant only stands to gain, it is contended. The learned counsel for the appellant-defendant would on the other hand submit that, if such an offer was made by the plaintiff initially itself, probably the defendant who was hard pressed for money would have agreed for the same. In the cross examination of the plaintiff he has admitted that there has been rise in land value after entering into the agreement. The offer made after much lapse of time and at the far end of the trial, during the final hearing, probabilises the defendant’s contention that the plaintiff is attempting to take advantage of the rise in price, after having failed to perform his obligations under the agreement, cannot be brushed aside. **RFA No.475 of 2013** -: 15 :- 14. All these apart, specific performance being an equitable relief, the conduct of the plaintiffs is significant while deciding as to whether discretion under Section 20 of the Specific Relief Act should be exercised to grant a decree for specific performance. As found by me earlier, Ext.A1 agreement was entered into by the plaintiffs with full knowledge regarding the nature and title of the property. However, in Ext.A4 notice, the stand taken by the plaintiffs was that, out of the two title deeds viz. Sale Deed numbers 438/1993 and 439/93, only copy of title deed number 438/1993 was given to them consequent to which they were unable to ascertain regarding the title of the defendant with regard to the other documents and also was unable to obtain the relevant records. In Ext.A6 notice also the plaintiffs took an identical stand with a further claim that they recently came to know that it is a vested forest and that Sale Deed number 438/1993 stands in the **RFA No.475 of 2013** -: 16 :- name of the defendant's mother. As found by me earlier, in fact all these facts were known to the plaintiffs even at the time of entering into Ext.A1. The plaint also proceeds on the similar lines. The plaintiffs had entered into Ext.A1 agreement being aware of the true state of affairs and taking upon them the responsibility to set the documents right for conveyance of the properties. When they realised that they are unable to set right the documents regarding item Nos.2 and 3 in Ext.A1 agreement they adopted a stand that they were kept in dark with regard to the nature and title of the said properties. I do not think that the plaintiffs are under the circumstances, entitled for the equitable and discretionary relief of specific performance. 15. For the reasons as above, the decree for specific performance granted by the trial court is liable to be interfered with. **RFA No.475 of 2013** -: 17 :- 16. The receipt of ` 1 lakh towards the advance sale consideration having been admitted, the plaintiffs are entitled for return of the said amount with interest. The plaintiffs have claimed interest at the rate of 12% per annum. On the facts and circumstances, I am of the opinion that interest at the said rate could be granted till date of decree and from the date of decree at 6%. Resultantly, this appeal is allowed. The decree and judgment of the trial court are set aside. The plaintiffs are granted a decree for recovery of ` 1 lakhs with interest at the rate of 12% per annum from 16.09.2008 till date of the suit (06.02.2009) and thereafter also at the same rate till date of decree. The plaintiffs shall be entitled for interest at the rate of 6% per annum from the date of decree till realisation. The plaintiffs shall also be entitled for proportionate costs throughout. The amount as above **RFA No.475 of 2013** -: 18 :- shall be a charge on the plaint schedule property. Sd/- **SATHISH NINAN JUDGE** kns/- //True Copy// P.S. to Judge