Karunakaran Nambiar v. V. C. Kallyani Amma and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** ## **FRIDAY, THE 14TH DAY OF DECEMBER 2012/23RD AGRAHAYANA 1934** ## **CRP.No. 2028 of 2003 (A)** **-----------------------OS.76/1982 of PRINCIPAL SUBORDINATE COURT,THALASSERY** **REVISION PETITIONER(S)/RESPONDENTS 1,3 TO 12:** - **--------------------------------------------** **1. VANNARATH CHAKKYARKANDY KARUNAKARAN NAMBIAR, S/O KUNHATI AMMA, RTD CLERK, NO.15, PUGZHENTH STREET, M.G.R. NAGAR, MADRAS 78.** **2. KOLATHIL ROHINI AMMA, W/O LATE CHANDU NAMBIAR, GOPALA MENON STREET, CHENNAI.** **3. JAYACHANDRAN, S/O ROHINI AMMA, DO -DO** **4. JAYAKUMAR,S/O ROHINI AMMA, DO -DO** **5. SHYAMALA, D/O ROHINI AMMA, DO -DO** **6. JAYAPRAKASH, S/O ROHINI AMMA, DO -DO** **7. PARIMALA,D/O ROHINI AMMA, DO -DO** **8. KARTHIYAYINI AMMA, W/O LATE PURUSHOTHAMAN NAMBIAR, 54-10TH SECTOR, 58 STREET, WEST K.K. NAGAR, CHENNAI – 78.** **9. PREMA, D/O LATE PURUSHOTHAMAN NAMBIAR, NOW RESIDING AT 54-10TH SECTOR, 58 STREET, WEST K.K. NAGAR,CHENNAI – 78.** **10. SUJATHA, D/O LATE PURUSHOTHAMAN NAMBIAR, -DO-DO-** **11. RAMACHANDRAN @ RAMABHADRAN -DO-DO-** **BY ADV. SRI.C.K.SREEJITH** ## **CRP.No. 2028 of 2003 (A)** ## **RESPONDENT(S)/2ND RESPONDENT:** ## **----------------------------** **1. V.C. KALLYANI AMMA, D/O KUNHATHI AMMA, EDAKKAD AMSOM, DESOM (DIED)** **2. KELOTH BAPPIDI BABY USHA, D/O LATE CHAKRAPANI NAMBIAR, SECTOR 5/567, M.B. ROAD, PUSHPA VIHAR, NEW DELHI-017.** ## *** ADDITIONAL RESPONDENTS** **ADDL.R3. C K NARAYANAN, S/O KALLIANI AMMA, AGED 57 YRS, RESIDING AT VANNARATH, CHAKKIARKANDY HOUSE, EDAKKAT AMSOM DESOM, KANNUR DISTRICT.** - **R4. PRABHAKARAN, S/O -DOAGED 55 YRS, -DO- DO-** - **# R5. PRABHAVATHI, D/O KALLIANI AMMA, AGED 53YRS, -DO- DO- (DIED)** - **R6. JANAKI AMMA, AGED 51 YRS, -DO- DO-** - **R7. RAJAGOPALAN, S/O PRABHAVATHI, RESIDING AT THANNAKKAT HOUSE, EDAKKAD P.O., KANNUR DISTRICT.** - **R8. SURESH BABU, S/O PRABHAVATHI, -DO- DO-** **R9. SREELATHA, D/O PRABHAVATHI,-DO- DO-** ## *** ADDITIONAL RESPONDENTS 3 TO 6 IMPLEADED AS LEGAL HEIRS OF THE DECEASED FIRST RESPONDENT AND** **# ADDITIONAL RESPONDENTS 7 TO 9 IMPLEADED AS THE LEGAL HEIRS OF THE DECEASED FIFTH RESPONDENT VIDE ORDER DATED 19.09.2012 IN I.A.1337/2005 AND I.A. 819/2009 RESPECTIVELY.** **R2 BY ADV. SRI.A.MOHAMED MUSTAQUE R2 BY ADV. SRI.M.K.SUMOD R3 BY ADV. SRI.P.SUJITH KUMAR R6 TO R9 BY ADV. SRI.R.PARTHASARATHY** **THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 14-12-2012, ALONG WITH C.R.P. NO. 1606/2003, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **LSN** ## **K. VINOD CHANDRAN,J.** ## **---------------------------------------** ## **C.R.P. NO. 1606 of 2003 & C.R.P. NO. 2028 of 2003** ## **----------------------------------------** Dated this the 14[th] day of December, 2012 ## **O R D E R** Kallyani Amma, filed a suit for specific performance with four defendants in the party array. The first defendant was her own brother, Karunakaran Nambiar. The defendants 2 and 3 were the children of the step-sister of Kallyani Amma, by name Madhavi Amma. The 4[th] defendant was the daughter of another deceased son of Madhavi Amma. The suit was one for specific performance of an agreement. The plaint schedule property belonged to the joint family, in which, the plaintiff and the defendants were members. The plaintiff claimed half share in the property. The defendants together had executed an agreement to convey the other half to the plaintiffs for a consideration of Rs. 50,000/-. An amount of Rs.5,000/- was paid as advance. The suit was compromised and it was agreed that, the defendants would execute a conveyance on C.R.P. NO. 1606 of 2003 & C.R.P. NO. 2028 of 2003 2 payment of Rs.50,000/-. On the basis of the compromise a judgment and decree was passed on 15.3.1986. 2. In the meanwhile; one Visalakshi Amma, filed O.S No.164/90 claiming 3/30 shares in the plaint schedule property. That was decreed on 09.12.1991 upholding the claim for partition. The three shares were allotted to her and the remaining 27 shares; noticing the decree in O.S. No. 164/1990, was allotted in favour of Kallyani Amma. It is admitted that, the plaintiff in O.S No. 164/1990 had taken delivery of her share after the final decree was passed in the suit. The partition suit is no more germane for consideration. Kallyani Amma remained in possession of the balance property. However, no conveyance was executed in favour of her, with respect to the half share of the property, as per the compromise decree. 3. On 6.3.1998 the entire sale consideration was deposited and Kallyani Amma filed an application before Court under Section 28 for getting a sale deed executed with 3 C.R.P. NO. 1606 of 2003 & C.R.P. NO. 2028 of 2003 the aid of the Court. By then the 2nd and 3rd defendants were no more. Hence, the respondents in the application filed by Kallyani Amma were the first defendant, the 4[th] defendant and the legal heirs of the 2[nd] & 3[rd] defendants. They contested the matter and also filed a separate application under Sec.28(2) for rescinding the contract. The Courts below considered the applications separately. The application of the plaintiff, to receive the amounts and to execute a sale deed was allowed by the Court below, by the impugned order. The application fled for rescinding the contract under Sec.28 (2) of the Specific Relief Act, 1963 was dismissed. Admittedly, there is no revision from the order rejecting the application filed under Sec.28(2). Of the two revisions, before this Court, one is filed by the 4[th] defendant and the other by the first defendant along with the legal heirs of the 2[nd] and 3[rd] defendants. 4. I have heard learned counsel Sri. Mohammed Mustaque for the revision petitioners and Sri Parthasarathy 4 C.R.P. NO. 1606 of 2003 & C.R.P. NO. 2028 of 2003 for the respondents who are the legal heirs of Kallyani Amma. The learned counsel for the revision petitioner would contend that, the terms of the compromise would indicate that the amounts agreed in the compromise i.e., Rs.50,000/had to be paid within three months. The plaintiff having not paid the said amounts within the said three months could not claim that, she had twelve years from the passing of the decree to make the deposit and seek the aid of the Court as provided under Sec.28(3). The learned counsel would submit that, the decree passed cannot be considered as a preliminary decree under Sec. 28 since, there was specific directions to pay the amounts within three months. That having been not paid within the stipulated time, the plaintiff cannot now seek conveyance of the properties. 5. The learned counsel, to buttress his contention that, the compromise entered into or rather the terms of such compromise cannot be altered without the consent of the parties places reliance on _**Hukamchand v. Bansilal &**_ 5 C.R.P. NO. 1606 of 2003 & C.R.P. NO. 2028 of 2003 _**others**_ **(AIR 1968 SC 86)** , _**Gupta Steel Industries v. Jolly Steel Industries Pvt. Ltd & Another**_ **[(1996)11 SCC 678]** and _**V S Palanichamy Chettiar Firm v. C Alagappan & another**_ **(AIR 1999 SC 918).** 6. The learned counsel for the respondent however, would contend that, this is a case in which the Court had fixed the time of three months that too, not for payment but for effecting the conveyance. The learned counsel relies on **Khoobiram v. Smt. Urmila Chouhan & Ors. (AIR 2010 Madhya Pradesh 211).** The plaintiff had been constantly after the defendants for accepting the money and executing a conveyance. The practical difficulty was highlighted in so far as the legal heirs were aplenty and the plaintiff could not bring all the defendants to agree on a meeting point. In the meanwhile, the plaintiff also was beset with the partition suit, which ended in a decree granting 3/30 shares in the property to another family member. It was in these circumstances that, the plaintiff eventually approached the C.R.P. NO. 1606 of 2003 & C.R.P. NO. 2028 of 2003 6 Court with the deposit and sought its aid under Sec.28(3), though belatedly, still within the limitation period. 7. The matter was compromised on the basis of an endorsement in the plaint, as is revealed from the plaint, available in the records, called for from the lower court. The hand-written compromise endorsed on the plaint itself, shows that, the agreement was that the plaintiff would pay an amount of Rs.50000/- to the defendant as balance consideration within three months and on the receipt of such amounts, the defendants would execute the conveyance. On the basis of the compromise, the Court below passed a judgment directing the defendants to execute the sale deed within three months on receiving balance consideration of Rs 50000/-, from the plaintiff. Further, on default, it was also directed that the plaintiff get executed the sale deed through Court on making the deposit of the balance sale consideration. With the terms of the compromise in the background, the decisions cited by both sides are to be 7 C.R.P. NO. 1606 of 2003 & C.R.P. NO. 2028 of 2003 ## examined. **8. Hukamchand** ( _supra_ ) was a case in which an application under Order 21 Rule 19 to set aside the sale was allowed on consent and on condition that, the applicant would pay the decretal amount within a specified period. The applicant having failed to do so, was before Court, seeking an extension. The Honourable Supreme Court found that, the rejection of the application for extension was proper. However, this was on the finding that, Order 21 Rule 92 mandated that an auction sale has to be confirmed in the event of there being no application under Rule 89, 90 or Rule 91. Hence, the Court, in the instant case ought to have confirmed the sale on the dismissal of application under O.21 R.90 and that was deffered only because of the prayer for breathing time to make payment of the decretal amount. **Gupta Steel Industries** case ( _supra_ ) was one in which a compromise decree was passed under O.23 R.3. The Honourable Supreme Court held that, it cannot be 8 C.R.P. NO. 1606 of 2003 & C.R.P. NO. 2028 of 2003 interfered with or modified by the Court unless the terms of the compromise were agreed to be modified by both the parties. **V S Palanichami Chettiar firm** ( _supra_ ) was also a case in which the original period having expired, extension of time to deposit was sought for 5 years after the decree. This Court is of the opinion that, the circumstances in the instant case is clearly distinguishable from those which existed in the above cited decisions. 9. In the instant case, it is to be noticed that, though the parties had agreed to make the payment within three months, the specific direction by the Court was to the defendants to execute the conveyance, on receipt of the consideration agreed to, by both parties. The further direction to seek the aid of the Court for effecting the conveyance was only on the default of the defendants failure to execute the conveyance. What is highlighted by the learned counsel for the respondents/plaintiff, is the practical impossibility in bringing the defendants together, 9 C.R.P. NO. 1606 of 2003 & C.R.P. NO. 2028 of 2003 especially so, in the context of the death of two defendants. The plaintiff who was in possession, after being frustrated in the attempts to pay the balance consideration; as is stated in the affidavit accompanying the application, approached the Court with the deposit and an application under Sec.28 (3). True, the application was made just prior to the time in which the limitation of twelve years would have expired. However, the deposit having been made within the limitation period, the lower court could not find the application to be barred by limitation. 10. In this context, it is pertinent that, the defendants also did not avail of their remedy under Sec.28(2) for rescinding the contract till the plaintiff made the deposit. Immediately on making the deposit the defendants filed an application under Sec.28(2). The application for rescinding the contract under Sec.28(2), having been rejected by the Court below, was not challenged by the defendants. That order has become final. 10 C.R.P. NO. 1606 of 2003 & C.R.P. NO. 2028 of 2003 11. **Khoobiram** ( _supra_ ) was a case decided by a Division Bench of the Madhya Pradesh High Court wherein, almost a similar situation came to fore. The Court while granting the decree in favour of plaintiff, in that case, did not impose any obligation to pay balance consideration within a particular period. The obligation was upon the defendants to receive the balance consideration and to execute the registered sale deed within a period of two months from the date of decree. The Court found that, the obligation so imposed on the judgment debtor ought to have been discharged by him and on failure of the decree holder, to pay the amounts notice ought to have been issued, requiring the latter to pay the balance sale consideration. It was held that sub-sec.(2) of Sec.28 of the Specific Relief Act has no application and the petitioners before Court could not claim for rescinding the contract. The decree in the instant case is also couched and worded in a manner which would indicate that the specific direction was to the defendants 11 C.R.P. NO. 1606 of 2003 & C.R.P. NO. 2028 of 2003 and not to the plaintiff. The plaintiff was also given the liberty to approach the Court on failure of the defendants to execute conveyance. The plaintiff was acting in terms of the decree and in accordance with law when it approached the Court with the deposit and with the prayer under Sec.28(3). That being within the limitation period it cannot at all be said to be bad in law. 12. However, it is very evident that, there was delay in making the deposit and seeking the aid of the Court under Section 28(3). The plaintiff's contention that, she could not bring together all the defendants and their legal heirs. But that explanation cannot wish away the omission of the plaintiff in approaching the Court, immediately after the expiry of three months period or within a reasonable time thereafter. The defendants too, are guilty of latches and omissions. The order of the Court below rejecting their prayer for rescinding the contract under Sec.28(2) also stands dismissed and has become final. The plaintiff is in 12 C.R.P. NO. 1606 of 2003 & C.R.P. NO. 2028 of 2003 possession of the properties. Taking into consideration all these circumstances, this Court is of the opinion that, interest of justice would be served if the respondents herein, being the legal heirs of the plaintiff are directed to deposit a further amount of Rs.1,50,000/-; which works out to almost three times the amount agreed upon in the compromise before the Court below; within a period of four months from today. On the respondents/applicants before the Court below making such deposit, the Court below shall execute a conveyance as provided under sub-sec.(3) of Sec.28. The defendants shall be entitled to withdraw the amounts deposited before the court below. The Civil Revision Petitions are dismissed confirming the order of the Court below, but however, subject to the condition imposed by this Court, as above. The parties shall suffer their costs. **K.VINOD CHANDRAN JUDGE** lsn