Kousalya v. Haridasan and Karimbanal Narayanan

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID FRIDAY, THE 6TH AUGUST 2010 / 15TH SRAVANA 1932 SA.No. 66 of 2003 ------------------- (A.S.NO.18/1997 OF THE SUB COURT, SULTAN BATTERY) (O.S.NO.323/1995 OF THE MUNSIFF COURT, KALPETTA) APPELLANT/RESPONDENT/1ST DEFENDANT: -----------------------------------------------SMT.KOUSALYA, W/O.RAMAN, KANDETHPARA HOUSE, MUNDAKUTTY P.O., KALPETTA VIA, VYTHIRI TALUK. BY ADV. MR.MOHAN JACOB GEORGE RESPONDENTS/APPELLANT & 2ND RESPONDENT/PLAINTIFF & 2ND DEFENDANT: - -------------------------------------------------------------------------1. HARIDASAN, S/O.NARAYANAN, KARIMBANAL HOUSE, KAVUMANNAM AMSOM AND DESOM, VYTHIRI TALUK. 2. KARIMBANAL NARAYANAN, S/O.KUMARAN, KANDOTHPARA HOUSE, MUNDAKUTTY P.O., KALPETTA VIA, VYTHIRI TALUK. - ADV. MR.P.K.RAMKUMAR FOR R1 MR.V.P.YELDO FOR R1. THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 06/08/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: SA.No. 66 of 2003 ORDER ON C.M.P.NO.221/2003 & I.A.NO.173/2004 DISMISSED. 6.8.2010 SD/- HARUN-UL-RASHID, JUDGE. // TRUE COPY // P.A TO JUDGE. ## **HARUN-UL-RASHID, J. -----------------------S.A.No.66 Of 2003 ---------------------Dated this the 6[th] day of August, 2010.** ## **J U D G M E N T** The first defendant in O.S.No.323 of 1995 on the file of the Munsiff Court, Kalpetta, is the appellant. The appeal is directed against the decree and judgment in A.S.No.18 of 1997 on the file of the Sub Court, Sultan Bathery. Suit was filed for specific performance. The trial court held that the plaintiff is not entitled to get a decree for specific performance. The trial court granted a decree directing the defendants to pay a sum of Rs.9,000/with interest at the rate of 12% per annum. In the appeal preferred by the plaintiff, the lower appellate court modified the judgment and decree passed by the trial court and granted a decree directing the appellant/first defendant to execute a sale deed in respect of the plaint schedule property in favour of the plaintiff after receiving the balance sale consideration. The parties hereinafter are referred to as the plaintiff and defendants as arrayed in the suit. 2. Parties to the suit are close relatives. The plaintiff is the son, first defendant daughter and second defendant is their ## **S.A.No.66 Of 2003** ::2:: father. The plaint schedule property having an extent of 73 cents admittedly belonged to the first defendant. Ext.A1 is the agreement entered into between the plaintiff and defendants. The agreement is dated 22.12.1994. First defendant agreed to sell her property in favour of the plaintiff. The terms and conditions are set out in Ext.A1. Father and his two children are parties to Ext.A1 agreement. On the date of agreement the first defendant received Rs.5,000/-. The plaintiff agreed to pay the balance sum of Rs.5,000/- at the time of execution of the sale deed. It is also agreed by the parties that the first defendant shall execute the sale deed in favour of the plaintiff subject to further condition that the father shall convey 50 cents of property in favour of the first defendant. It is also agreed that the plaintiff shall met the expenses for the said conveyance. Another clause in Ext.A1 agreement is that the plaintiff shall pay Rs.2,500/- and the interest thereof to the bank wherein the father has availed a loan of Rs.9,000/- 3. The execution of the agreement is admitted by the parties. The plaintiff contended that the first defendant had ## **S.A.No.66 Of 2003** ::3:: violated the terms of the agreement and therefore he approached the court for a decree of specific performance of the contract. The defendants contended that the plaintiff has not performed his part of contract and therefore he is not entitled to the reliefs claimed in the plaint. 4. The trial court framed necessary issues. The parties adduced oral and documentary evidence. The trial court held that the plaintiff has not complied with the requirements of pleadings. The learned Munsiff held that the pleadings in a suit for specific performance must be in strict conformity with the requirements in Forms 47 & 48 of Appendix A to the 1[st] schedule of the CPC. For want of pleadings the trial court held that the plaintiff is not entitled to get a decree for specific performance. The trial court also examined the question as to whether the plaintiff is entitled to realise the amount paid by him to the defendants. The trial court held that the plaintiff has paid an amount of Rs.9,000/- to the defendants as per the terms of Ext.A1 and further held that the plaintiff is entitled to realise the said amount from the defendants at the rate of 12% per annum. ## **S.A.No.66 Of 2003** ::4:: 5. Aggrieved by the judgment and decree passed by the trial court in not granting a decree for specific performance, the plaintiff preferred appeal. The lower appellate court held that the plaintiff had deposited Rs.2,500/- and interest in the bank on 22.12.1994 and that the plaintiff had paid Rs.5,000/- to the first defendant on the date of agreement and that the plaintiff has withdrawn the complaint filed by him before the Thahsildar, Neyyattinkara which is also another term in the agreement. After recording the above said facts in paragraph 9, the lower appellate court considered the question as to whether the plaintiff has complied with Section 16(c) of the Specific Relief Act. The appellate court rightly observed that the plaintiff must plead and prove that he is ready and willing to perform his part of contract. Following the decision of the Apex Court in _**Syed Distagir v. T.R.Gopalakrishna Setty**_ (AIR 1999 SC 3029) the appellate court observed that it is a well settled proposition of law that an averment of readiness and willingness in the plaint is not a mathematical formula which should only be in specific words. Following the above decision the appellate court further held that ## **S.A.No.66 Of 2003** ::5:: Section 16(c) of the Specific Relief Act does not require any specific phraseology. The lower appellate court took the view that if the averment in the plaint as a whole clearly indicate the readiness and willingness of the plaintiff to fulfil his part of the obligation that is sufficient compliance regarding the pleadings. The lower appellate court also referring to paragraph 6 & 7 of the plaint concluded that the averment in the paragraph reveal that the plaintiff was ready and willing to perform his part of contract. After holding that Section 16(c) of the Specific Relief Act has been complied, the appellate court held that the plaintiff is entitled to a decree for the relief sought in the plaint. Accordingly, a decree for specific performance of the contract was passed. 6. In the preceding paragraphs I have stated the terms of compromise. The first defendant shall execute the sale deed in favour of the plaintiff in respect of the plaint schedule property subject to the conditions stated in Ext.A1 agreement. The lower appellate court in paragraph 8 extracted the terms of agreement. It is very strange to notice that the most important term in the ## **S.A.No.66 Of 2003** ::6:: agreement was left out by both the courts. The most important term in Ext.A1 agreement is that the first defendant is liable to execute the sale deed in favour of the plaintiff only if her father conveys 50 cents of property in her favour. So the consideration for conveyance of the plaint schedule property is Rs.10,000/plus conveyance of 50 cents of property which stands in the name of the father. The agreement further provides that the plaintiff shall take the responsibility of execution of the conveyance deed in respect of 50 cents in favour of the first defendant. The plaintiff has no case that within the time fixed by the parties the father had conveyed 50 cents of property in favour of the first defendant. The plaint is silent regarding that important term. 7. The question answered by the trial court as well as the appellate court is regarding the requirement of Section 16(c) of the Specific Relief Act. The learned counsel for the appellant submitted that the finding of the appellate court that there is sufficient pleadings in the plaint and there is substantial compliance of Section 16(c) of the Act is wrong. According to ## **S.A.No.66 Of 2003** **==> picture [20 x 9] intentionally omitted <==** him the plaint does not contain any pleadings regarding the readiness and willingness of the plaintiff. The appellate court observed that paragraphs 6 & 7 of the plaint contains sufficient pleadings. I am not expressing any opinion about the conclusion arrived at by the lower appellate court in view of the decision I have to take in this appeal. The plaintiff is entitled to a decree for specific performance only if the terms and conditions agreed by the parties is complied with. The first defendant/appellant is bound to execute the sale deed only if the father conveyed 50 cents to her as per the agreement. If the said term is not complied with there is no obligation on her part to execute the agreement. Nobody has a case that the father executed conveyance deed in favour of the appellant. The learned counsel for the appellant submitted that the property agreed to be conveyed to the appellant was already conveyed to another daughter and the contract has become impossible for performance. In the light of the discussions made above, the matter requires reconsideration. The lower appellate court has to consider the terms set out in Ext.A1 agreement and further to ## **S.A.No.66 Of 2003** ::8:: enter a finding as to whether the parties to Ext.A1 agreement has complied with the terms so that the appellant/first defendant is bound to execute the sale deed in favour of the plaintiff. The lower appellate court shall also consider the contention of the appellant as to whether the suit is liable to be dismissed for want of pleadings regarding the readiness and willingness of the plaintiff. After considering these aspects the lower appellate court shall decide as to whether the court shall extent the discretionary relief of specific performance in case the court found that the plaintiff has complied with all the terms contained in Ext.A1. In the result, the appeal is allowed. The judgment and decree passed by the lower appellate court is set aside. The case is remanded to the lower appellate court for fresh consideration in accordance with law on the basis of the observations made above. The parties shall appear before the court below on 14.9.2010. The court below shall dispose of the suit within six months from the date of receipt of a copy of this judgment. There will be no order as to costs. The appellant has filed ## **S.A.No.66 Of 2003** **==> picture [20 x 9] intentionally omitted <==** C.M.P.No.222 of 2003 to produce additional documents before this Court. I have not passed any order in that petition. The petition is dismissed as withdrawn. The appellant is at liberty to take back the documents to be produced before this Court in order to produce it before the lower appellate court. **HARUN-UL-RASHID, Judge.** bkn/-