Manicka Sachindranath v Sankunni and Gopinathan

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN** **FRIDAY, THE 2[ND] DAY OF FEBRUARY 2024 / 13TH MAGHA, 1945 RSA NO. 300 OF 2005** **AGAINST THE DECREE AND JUDGMENT DATED 20.10.2004 IN AS 88/2000 OF ADDITIONAL SUB COURT, IRINJALAKUDA AGAINST THE DECREE AND JUDGMENT DATED 29.02.2000 IN OS 1322/1998 OF ADDITIONAL MUNSIFF COURT, IRINJALAKUDA** ## **APPELLANT/APPELLANT/2ND DEFENDANT:** **1 MANICKA SACHINDRANATH, (DIED) (LRS IMPLEADED) S/O. VENKITACHALA CHETTIAR, VENGASSERY PARAMBA, MANAVALASSERY VILLAGE, CHELOOR DESOM, MUKUNDAPURAM TALUK.** **ADDL.A2 RAJESWARI AGED 60 YEARS, W/O.LATE MANIKKA SAJEENDRANATH, VENGASSERY PARAMBIL HOUSE,CHELOOR, IRINJALAKUDA,THRISSUR-680 121.** **ADDL.A3 DIVYA NATH, AGED 36 YEARS, D/O.LATE MANIKKA SAJEENDRANATH, VENGASSERY PARAMBIL HOUSE,CHELOOR, IRINJALAKUDA,THRISSUR-680 121.** **ADDL.A4 DHANYA NATH AGED 36 YEARS, D/O.LATE MANIKKA SAJEENDRANATH, VENGASSERY PARAMBIL HOUSE,CHELOOR, IRINJALAKUDA,THRISSUR-680 121.** **ADDL.A5 AMAR NATH, AGED 30 YEARS, S/O.LATE MANIKKA SAJEENDRANATH, VENGASSERY PARAMBIL HOUSE,CHELOOR, IRINJALAKUDA,THRISSUR-680 121. (THE LEGAL HEIRS OF THE DECEASED SOLE APPELLANT ARE IMPLEADED AS SUPPLEMENTAL APPELLANTS 2 TO 5 AS PER ORDER DATED 20.11.2020 IN IA.1/2020.)** **RSA NO. 300 OF 2005** **2** **BY ADVS. P.RAVINDRAN (SR.) SRI.SREEDHAR RAVINDRAN** ## **RESPONDENTS/RESPONDENTS/PLAINTIFF & 1ST DEFENDANT:** - **1 SANKUNNI,(DIED) (LRS IMPLEADED) S/O.THOOPPATH KUNJAPPU, PARATHISERY VILLAGE, MUKUNDAPURAM TALUK** - **2 GOPINATHAN, S/O. VENGASSERY PARAMBIL CHELLAPPAN CHETIAR,, PARATHUSSERI VILLAGE, MUKUNDAPURAM TALUK.** - **ADDL R3 RAMANATHAN T.S.,(DIED) (LRS IMPLEADED) EPRATH HOUSE,PORANJISSERY, IRINJALAKUDA.** **ADDL R4 VISWANATHAN T.S. EPRATH HOUSE,PORANJISSERY, IRINJALAKUDA.** - **ADDL R5 SANTHAKUMARI T.S.,** - **A-47, SWASTIK HOUSING SOCIETY, SOOSEN TARSALI ROAD, BARODA-390 009.** ## **ADDL R6 SUMATHI CHANDRAN,** **KINATTUKARAPARAMBIL HOUSE, THANISSERY P.O.,IRINJALAKUDA.** **(THE LEGAL HEIRS OF DECEASED R1 ARE IMPLEADED AS ADDL.R3 TO R6 AS PER ORDER DATED 28.10.2022 IN IA.707/2022.)** ## **ADDL.R7 SUJANA,** **AGED 60 YEARS W/O.LATE RAMANATHAN T.S., THOOPRATH HOUSE, PORATHISSERY, IRINJALAKUDA,THRIISUR-680 121.** **RSA NO. 300 OF 2005** **3** ## **ADDL.R8 SABARINATH,** **AGED 36 YEARS S/O.LATE RAMANATHAN T.S., THOOPRATH HOUSE, PORATHISSERY, IRINJALAKUDA, THRIISUR-680 121.** **(THE LEGAL HEIRS OF DECEASED R3 ARE IMPLEADED AS ADDL.R7 AND R8 AS PER ORDER DATED 27.07.2022 IN IA.4/2020)** **BY ADVS.** **G.SREEKUMAR (CHELUR) T.N.MANOJ** **THIS REGULAR SECOND APPEAL HAVING COME UP FOR HEARING ON 19.01.2024, THE COURT ON 02.02.2024 DELIVERED THE FOLLOWING:** **RSA NO. 300 OF 2005** **4** ## **CR** ## **JUDGMENT** Dated this the 2[nd] day of February, 2024 This regular second appeal has been filed under Section 100 of the Civil Procedure Code, 1908 (hereinafter referred to as 'CPC' for short), challenging the decree and judgment dated 20.10.2004 in A.S.No.88/2000 on the files of the Sub Court, Irinjalakuda and also the decree and judgment dated 29.02.2000 in O.S.No.1322/1998 on the files of the Munsiff's Court, Irinjalakuda. The original appellant herein is the 2[nd] defendant in the above suit and the respondents are the plaintiff and the 1[st] defendant. 2. Heard the learned counsel for the additional appellants, who are the legal heirs of Manicka Sachindranath, the original 2[nd] defendant and the learned counsel appearing for the legal representatives of Sankunni, the original plaintiff. **RSA NO. 300 OF 2005** **5** 3. I shall refer the parties in this regular second appeal as 'plaintiff/Sankunni', '1[st] defendant/Gopinathan' and '2[nd] defendant/Manicka Sachindranath' for convenience. 4. This is a suit filed, seeking the relief of specific performance of an agreement of sale alleged to be executed between the plaintiff/Sankunni and 1[st] defendant/Gopinathan on 27.03.1998. According to the plaintiff/Sankunni, on receipt of Rs.70,000/- (Rupees seventy thousand only) as advance, the 1[st] defendant/Gopinathan agreed to execute sale deed in respect of the plaint schedule property for a total consideration Rs.1,00,000/- (Rupees one lakh only) with undertaking to pay Rs.30,000/- (Rupees thirty thousand only), at the time of execution of the sale deed. After impleadment of the 2[nd] defendant/Manicka Sachindranath, who purchased the property in the interregnum, the plaint was amended, contending that two documents executed in between the 1[st] defendant/ Gopinathan and the 2[nd] defendant/Manicka Sachindranath were concocted **RSA NO. 300 OF 2005** **6** documents generated to defeat the interest of the plaintiff/Sankunni. 5. The 1[st] defendant/Gopinathan filed written statement and denied the execution of the agreement as alleged by the plaintiff/Sankunni and the contention raised by the 1[st] defendant/Gopinathan was that he borrowed Rs.55,000/- (Rupees fifty five thousand only) from the plaintiff/Sankunni on 01.05.1997 and he had entrusted signed blank papers as security for the amount. Later, those signed blank papers were misused for the purpose of creating the agreement. 6. The 2[nd] defendant/Manicka Sachindranath, on impleadment, also filed written statement, _inter alia,_ contending that the 1[st] defendant/Gopinathan executed an agreement as early on 03.05.1997 in favour of the 2[nd] defendant/Manicka Sachindranath agreeing to execute sale deed in respect of the plaint schedule property for a total consideration of Rs.1,50,000/- (Rupees one lakh fifty **RSA NO. 300 OF 2005** **7** thousand only) and Rs.50,000/- (Rupees fifty thousand only) was paid as advance. Later, the 1[st] defendant/Gopinathan executed sale deed in favour of the 2[nd] defendant/Manicka Sachindranath, vide sale deed No.1495/1998 of SRO Irinjalakuda and therefore, the reliefs sought for were opposed. 7. The court below raised necessary issues and tried the matter. PW1 to PW3 examined and Exts.A1 to A3 were marked. DW1 and DW2 examined and Exts.B1 to B8 series were marked. Exts.X1 to X1(b) series were also marked. 8. On appreciation of evidence, the trial court decreed the suit, granting the relief of specific performance. 9. On appeal before the Sub Court, Irinjalakuda, the appellate court also confirmed the finding of the trial court. 10. It is discernible that as on 31.03.2005, my learned predecessor admitted this appeal on substantial questions of law 1 and 2 raised in the appeal memorandum without formulating the same and the the same are as under: **RSA NO. 300 OF 2005** **8** - “ _1) Whether in the facts and circumstances of the case the Court below were right in decreeing the suit appellant when there was neither a prayer for such relief nor any contractual relationship between the appellant and the plaintiff?_ - _2) Whether on the facts and in the circumstances of the Court below were right in granting a decree against the appellant who is a bonafide purchaser of plaint schedule property for valuable consideration and in good faith without notice of Ext.P1 agreement?”_ 11. In view of the arguments mooted by both sides, one more substantial question of law formulated for consideration as under; - _3) Whether the courts below exercised the discretion in terms of Section 20 of the Specific Relief Act, rightly, while granting decree of specific performance?_ 12. The learned counsel for the legal heirs of the 2[nd] - defendant/Manicka Sachindranath zealously argued to **RSA NO. 300 OF 2005** **9** contend that since as per Ext.B3 dated 30.05.1997 the 1[st] defendant executed a sale agreement in favour of the 2[nd] defendant, Ext.A1 sale agreement relied on by the plaintiff/Sankunni dated 27.03.1998, generated after ten months, is of no legal consequence and therefore, in consonance with Ext.B3, when the 1[st] defendant/Gopinathan executed Ext.B7 sale deed in favour of the 2[nd] defendant/Manicka Sachindranath, the same became obsolete and no relief is entitled by the plaintiff/Sankunni, in view of Ext.A1. He also submitted that, at the most, return of advance money with interest, prayed as the alternative relief in the suit, could have been granted instead of granting the discretionary relief of specific performance. He also submitted that the available materials would show that the transaction between the plaintiff/Sankunni and the 1[st] defendant/Gopinathan is monetary in nature, though he produced the original sale deed in the name of the 1[st] defendant/Gopinathan before the court. He also pointed out **RSA NO. 300 OF 2005** **10** that the plaintiff/Sankunni did not offer himself as a witness to prove the execution of the agreement instead of his son mounted the box and gave evidence. 13. Repelling this argument, the learned counsel appearing for the legal heirs of the plaintiff/Sankunnni submits that Exts.B3 and B7 are documents generated in between the 1[st] defendant/Gopinathan and the 2[nd] defendant/Manicka Sachindranath, who are relatives, to defeat the claim of the plaintiff/Sankunni. It is specifically pointed out by the learned counsel that the plaintiff/Sankunni, who was entrusted with Ext.A2 sale deed, at the time of execution of Ext.A1 agreement, rightly produced the same before the court and the same would show the bona fides in executing Ext.A1 and the mala fides in Exts.B3 and B7. 14. In this matter, as pointed out by the learned counsel for the legal representatives of the 2[nd] defendant/Manicka Sachindranath, the plaintiff did not mount the box to give evidence, instead his son got examined as **RSA NO. 300 OF 2005** **11** PW1. He filed chief affidavit and supported the case. During cross-examination, his evidence is that his father is aged 89 and he had memory loss. He supported execution of Ext.A1 and he also given evidence that he had witnessed the execution of Ext.A1. During cross-examination, PW1 denied the suggestion that his father was having money business and keeping books for the same. Apart from PW1, one 'Haridas' was examined as PW2. His evidence is that he had been working as a document writer and Ext.A1 was written by him. He stated further that Ext.A1 was written as directed by 1[st] defendant/Gopinathan and plaintiff/Sankunni. During cross-examination, he stated that Ext.A1 was written in his handwriting and was signed after writing the same. He denied the suggestion that agreement was written in a signed blank paper. DW1 examined in this case is the 1[st] defendant/Gopinathan. He reiterated the contentions in the written statement and stated that he had entrusted blank stamp papers at the time when he borrowed Rs.55,000/- **RSA NO. 300 OF 2005** **12** from the plaintiff/Sankunni and Ext.A1 was created therein. He supported sale as per Ext.B7 in favour of the 2[nd] defendant/Manicka Sachindranath in continuation of Ext.B3 sale agreement, admittedly executed by him in favour of the 2[nd] defendant/Manicka Sachindranath. When Ext.A1 was shown, he admitted his name and signature therein. His evidence further is that when the 2[nd] defendant/Manicka Sachindranath asked for the original title deed, he demanded the same from the plaintiff. But he did not give the original title deed. Then the 2[nd] defendant/Manicka Sachindranath said that the same was lost. He also supported execution of Ext.B7 on receipt of sale consideration. 15. The trial court as well as the appellate court granted discretionary relief of specific performance in favour of the plaintiff/Sankunni, mainly disbelieving the execution of Ext.B3 prior to Ext.A1 on two grounds. The first ground is that the plaintiff/Sankunni is the custodian of the title deed of the plaint schedule property and according to the **RSA NO. 300 OF 2005** **13** plaintiff/Sankunni, the 1[st] defendant/Gopinathan entrusted the same at the time of execution of Ext.A1. Though Ext.B3 is prior in date, viz, 30.05.1997, it seems that at the time of Ext.B3 the 2[nd] defendant/Manicka Sachindranath did not care about the original title deed in any manner. Secondly, the courts below disbelieved Ext.B7 since the sale consideration shown is much less than what is stated in Ext.B3. Thus, the questions to be answered are: whether Ext.B3 is a bonafidely executed document prior to the execution of Ext.A1, or else the same was generated after the execution of Ext.A1 with a prior date, so as to defeat the claim of the plaintiff/Sankunni. 16. Before addressing further in this matter, it is discernible that, as per Section 15 of the Specific Relief Act, 1963, any party to an agreement, the representative in interest or the principal, of any party thereto, seek the relief of performance of a contract. As per Section 16(c) of the Specific Relief Act, the specific performance of a contract cannot be enforced in favour of person, who fails to aver and **RSA NO. 300 OF 2005** **14** prove that (prior to amendment with effect from 01/10/2018) he has performed or has always been ready and willing to perform the essential terms of a contract which are to be performed by him, other than terms of the performance of which has been prevented or waived by the defendant. After the amendment with effect from 01.10.2018, for the text _“who fails to aver and prove_ ” is substituted by “ _who fails to prove_ ” 17. In the decision in _**B.K.Sri.Harsha v. Bharath Heavy Electricals Ltd,**_ reported in **AIR 2008 SC 1297 : 2000 KHC 4207** , the Apex Court held that _the right to specific performance of an agreement for sale of immovable property, when filed, raises questions of substantial importance between the parties as to whether the plaintiff has satisfied the requirements of S.16 of the Specific Relief Act, whether it is a case in which specific performance of the contract is enforceable in terms of S.10, whether in terms of S.20 of the Specific Relief Act, the discretion to decree_ **RSA NO. 300 OF 2005** **15** _specific performance should be exercised by the Court and in some cases, whether the suit was barred by limitation and even if not, whether the plaintiff has been guilty of negligence or laches disentitling him to a decree for specific performance. These questions, by and large, may not be questions of law of general importance. But they cannot also be considered to be pure questions of fact based on an appreciation of the evidence in the case._ 18. In another decision in **Motilal Jain v. Ramdasi Devi,** reported in **AIR 2000 SC 2408 : 2000 KHC 1261** , the Apex Court held that _an averment of readiness and willingness in the plaint is not a mathematical formula which should only be in specific words. If the averments in the plaint as a whole do clearly indicate the readiness and willingness of the plaintiff to fulfil his part of the obligations under the contract which is subject-matter of the suit, the fact that they are differently worded will not militate against the readiness and willingness of the plaintiff in a suit of specific_ **RSA NO. 300 OF 2005** **16** _performance of contract sale._ 19. In the decision in **Azhar Sultana v.B.Rajamani,** reported in **AIR 2009 SC 2157,** the Apex Court held that _it is not necessary that entire amount of consideration should be kept ready by plaintiff to show his readiness and willingness to perform contract._ 20. In the decision in **U.N.Krishnamurthy (since deceased) Thr.Lrs v. A.M.Krishnamurthy,** reported in **2022 LiveLaw (SC) 588** , the Apex Court held that ‘readiness’ and ‘willingness’ are necessary for the relief of Specific Performance – While readiness means the capacity of the Plaintiff to perform the contract which would include his financial position, willingness relates to the conduct of the Plaintiff. It was also held that in a suit for Specific Performance of a contract, the Court is required to pose unto itself the following questions, namely:- (i) Whether there is a valid agreement of sale binding on both the vendor and the vendee and (ii) Whether the Plaintiff has all along been and **RSA NO. 300 OF 2005** **17** still is ready and willing to perform his part of the contract as envisaged under Section 16(c) of the Specific Relief Act, 1963. Even in a first appeal, the first Appellate Court is duty bound to examine whether there was continuous readiness and willingness on the part of the Plaintiff to perform the contract _._ 21. When the vendee approaches a court seeking the relief of specific performance, the vendee shall plead and prove his readiness and willingness to perform the essentials of the terms of the contract, which are to be performed by him. Once such specific plea raised and proved, grant of the relief is governed under Section 20 of the Specific Relief Act. 22. No doubt, grant of relief of specific performance is the discretion of the court and the court has the power to grant the alternative relief provided under Section 22 of the Specific Relief Act, inclusive of refund of earnest money or deposit paid, in case claim for specific performance is refused, provided that as such alternative relief also is **RSA NO. 300 OF 2005** **18** claimed in the plaint. 23. In this case, the case of the plaintiff/Sankunni is that as on 27.03.1998, the plaintiff/Sankunni and the 1[st] defendant/Gopinathan executed sale agreement in respect of the plaint schedule property agreeing to sell the same in favour of the plaintiff/Sankunni for a total consideration of Rs.1 lakh and out of which Rs.70,000/- was received as advance. In order to prove execution of Ext.A1, the son of the plaintiff/Sankunni got examined as PW1 and he supported the execution without any ambiguity, being a person who directly witnessed the execution of Ext.A1. Similarly, PW2, who wrote Ext.A1, also supported the execution of Ext.A1. In order to prove the bonafides of plaintiff/Sankunni, in the matter of execution of Ext.A1, he had produced the original title deed, in the name of the 1[st] defendant/Gopinathan, entrusted by Gopinathan at the time of execution of Ext.A1. Coming to Ext.B3 agreement executed between the 1[st] defendant/Gopinathan and the 2[nd] defendant/Manicka **RSA NO. 300 OF 2005** **19** Sachindranath before the execution of Ext.B7 sale deed in favour of the 2[nd] defendant/Manicka Sachindranath by the 1[st] defendant/Gopinathan, the date of Ext.B3 is 30.05.1997. It is anxious to note that even though the 2[nd] defendant/Manicka Sachindranath entered into an agreement with the 1[st] defendant/Gopinathan, as on 30.05.1997, for the sale of the plaint schedule property for a sum of Rs.1,50,000/-, such an agreement was executed without handing over the original title deed in relation to the plaint schedule property. The reason is obvious. That is to say, plaintiff/Sankunni was entrusted with the original title deed at the time of execution of Ext.A1 and he produced the same before the court to prove execution of Ext.A1 and the same would show that at the time of alleged execution Ext.B3, the 2[nd] defendant/ Manicka Sachindranath not even concerned about the original title deed. This vital aspect shadows doubt in the matter of execution of Ext.B3. It is relevant to note that the original of Ext.B3 not even produced before the court and a **RSA NO. 300 OF 2005** **20** certified copy of the same obtained from a previous suit, based on the said agreement, had been produced before the trial court and the same is Ext.B3. No witness to prove execution of Ext.B3 was examined, apart from the evidence of DW1, Gopinathan and DW2, Manicka Sachindranath. 24. In this context, Section 19(b) of the Specific Relief Act assumes significance. Section 19 of the Specific Relief Act deals with relief against parties and persons claiming under them by subsequent title and it has been provided that _Except as otherwise provided by this Chapter, specific performance of a contract may be enforced against (a) either party thereto; (b) any other person claiming under him by a title arising subsequently to the contract, except a transferee for value who has paid his money in good faith and without notice of the original contract._ 25. Section 19(c) of the Specific Relief Act provides that _any person claiming under a title which, though prior to the contract and known to the plaintiff, might have been_ **RSA NO. 300 OF 2005** **21** _displaced by the defendant._ 26. In the decision reported in **R.K** . **Mahammed Ubaidullah v. Hajee V.Abdul Wahab** reported in **AIR 2001 SC 1658 : 2000 KHC** 1258, the Apex Court discussed the duty of the subsequent purchaser and held that _with reference to subsequent purchaser, it is essential that he should make an inquiry as to title or interest of the person in actual possession as on the date when sale transaction was made in his favour. The actual possession of a person itself is deemed or constructive notice of the title, if any, of a person who is for the time being in actual possession thereof. A subsequent purchaser has to make inquiry as to further interest, nature of possession and title under which the person was continuing in possession on the date of purchase of the property._ 27. In the instant case, the execution of Ext.A1, as contended by the plaintiff/Sankunni, stood proved, whereas the execution of Ext.B3 before the execution of Ext.A1 is in **RSA NO. 300 OF 2005** **22** the midst of doubts; rather, the same is not proved. Therefore, the trial court found that the 2[nd] defendant/ Manicka Sanchindranath might had notice of the agreement for sale between the plaintiff/Sankunni and the 1[st] defendant/ Gopinathan and therefore, the 2[nd] defendant/Manicka Sachindranath should be able to prove his successful defence in order to enable himself to seek benefit of Section 19(b) of the Specific Relief Act. The said finding appears to be correct. 28. On perusal of the plaint averments and the evidence tendered, the plaintiff/Sankunni pleaded his readiness and willingness always to perform his part of contract and given evidence supporting his readiness and willingness. PW1 given evidence that as directed by the 1[st] defendant/Gopinathan, the plaintiff/Sankunni reached the Sub Registrar Office on the date suggested for execution of the sale deed along with balance sale consideration. But the 1[st] defendant/Gopinathan did not reach the Sub Registrar **RSA NO. 300 OF 2005** **23** Office to execute the sale deed. 29. On evaluation of the materials available, the substantial questions of law answered, holding that the courts below granted decree for specific performance, the relief asked for by the plaintiff/Sankunni, by rightly exercising the discretion, on finding execution of Ext.A1 by the 1[st] defendant/Gopinathan in favour of the plaintiff/Sankunni and on finding that the 2[nd] defendant/Manicka Sachindranath is not a bonafied purchaser. 30. To sum up, it is held that the courts below rightly granted the decree and the said verdicts do not require interference by this Court in any manner. 31. In the result, this regular second appeal stands dismissed. All interlocutory orders stand vacated and all interlocutory applications pending in this regular second appeal stand dismissed. **RSA NO. 300 OF 2005** **24** Registry is directed to forward a copy of this judgment to the trial court as well as the appellate court forthwith. **Sd/A. BADHARUDEEN JUDGE** nkr