Appeal filed against decree for specific performance for sale of property. This Court held Power of Attorney could depose, contract was not contingent, and agreement was not terminated. Discussed precedent regarding defective title and Maintainability of suit.
No costs. Trial Court decree upheld.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
A.S.No.180 of 2013
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 12.12.2023
CORAM
THE HONOURABLE MR. JUSTICE G.K.ILANTHIRAIYAN
A.S.No.180 of 2013
-Vs-
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11180 of 2021 in A.S.No.180 of 2013) ... Respondents Prayer: First Appeal filed under Section 96 of CPC to allow the appeal by setting aside the Judgment and Decree dated 18.01.2013 passed in O.S.No.168 of 2006 on the file of the 2nd Additional District Judge, Thiruvallur at Poonamallee, with costs.
For Appellants : M/s.R.V.Rukmani for M/s P.B.Ramanujam and Associates For R1 : Mr.S.Thanka Sivan R2 : Died (steps taken) For R3, R6, R7 and R9 : No appearance
For R4, R5 and R8 : Mr.S.Venkatesh
JUDGMENT
This appeal suit has been filed as against the Judgment and Decree dated
18.01.2013 passed in O.S.No.168 of 2006 by the II Additional District Judge, Thiruvallur at Poonamallee, thereby decreed the suit for specific performance.
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A.S.No.180 of 2013
first defendant filed a writ petition before this Court in W.P.No.12820 of 2004
for issuance of patta in respect of the suit property. The Writ Petition was ordered by this Court, by an order dated 30.04.2004, thereby this Court directed the authorities to consider the request made by the first defendant and to grant patta, within a period of 12 weeks from the date of receipt of the order. However, no patta was granted. The plaintiff awaited till December 2005 for execution of the sale deed. However, as per the agreement of sale, the pendency of patta proceedings and mutation of revenue records are not impediments for the defendants 1 to 3 to execute the sale deed in favour of the plaintiff. Even then, the defendants did not execute any sale deed and as such, the plaintiff caused legal notice dated 07.09.2006. Though the said notice was returned with an endorsement “addressee not found”, they issued reply notice. In fact, though the fourth defendant is not a party to the agreement of sale, she had replied that she offered to sell her share in favour of the plaintiff. Thereafter, the plaintiff came to know that, without the knowledge of the fourth defendant, the defendants 1 to 3 had entered into an agreement for sale with the plaintiff. Hence, the suit.
A.S.No.180 of 2013
patta in respect of the suit property. On the date of agreement of sale itself, the
original documents were handed over in favour of the plaintiff and the possession of the property was also handed over in favour of the plaintiff. Even then, the plaintiff failed to produce the original document before the revenue authorities for issuance of patta and mutation of revenue records. Therefore, the defendants are always ready and willing to perform their part of contract. In
fact, the defendants caused notice, thereby revoking the agreement for sale and filed a suit in O.S.No.514 of 2006, on the file of the District Munsif Court, Ambathur.
issues:-
“ 1. Whether the time is the essence of contract?
2. Whether the defendants have cancelled the suit sale agreement on 22.06.2006?
3. Whether the suit property is in possession of the plaintiff?
4. Whether the plaintiff has spent huge amount in fencing and leveling the suit property?
5. Whether the plaintiff has spent huge amount in filing a writ petition in getting patta to the suit property?
6. Whether there is a supervening impossibility of performance of contract at the time and also subsequent to the sale agreement?
7. Whether the plaintiff is ready and willing to perform
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his part of contract?
8. Whether the plaintiff is entitled to the decree for specific performance as prayed for?
9. To what relief?”
Exs.A1 to 14. On the side of the defendants, they had examined D.Ws.1 to 3.
and marked Exs.B1 to 7. Ex.C1 was marked as Court side document. On perusal of oral and documentary evidence, the Trial Court decreed the suit and directed the defendants to execute the sale deed in favour of the plaintiff. Hence, this Appeal suit.
The suit is filed by the Power of Attorney of the plaintiff and as such, he has no personal knowledge to depose before the Court. The Principal failed to get into the box to prove his case.
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A.S.No.180 of 2013
India reported in 2013 15 SCC 27 in the case of I.S.Sikandar (dead) by LRs
Vs. K.Subramani and others, wherein the Hon'ble Supreme Court of India held that in the absence of such prayer by the plaintiff, the original suit filed by him before the Trial Court for grant of decree for specific performance in respect of the suit schedule property on the basis of agreement of sale and consequential relief of decree for permanent injunction is not maintainable in law.
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title cannot be a plea for the owner of the property. Now, as per the decree, the entire balance sale consideration was already deposited by the Trial Court. In fact, the defendants 1 to 3 without the knowledge of the 4th defendant, who is also one of the legal heirs, had entered into an agreement for sale. The 4th defendant alone replied that she is ready and willing to perform the contract insofar as her share in favour of the plaintiff. Further, the non ratification of revenue records and non issuance of patta are not an impediment for the defendants to perform their part of the contract.
“ Whatever may be the real truth about the title, it does not fall to be decided in these proceedings, as pointed out already, firstly because the father was no made a party, and secondly the defendant cannot be allowed to urge his own defective title as an answer to a suit for specific performance by the purchaser. He is bound in law to execute a conveyance in accordance with the terms of the agreement, and his right, title or interest, whatever it might be, will pass under the same.”
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the first respondent and the learned counsel for the respondents 4, 5 and 8 and
perused the materials available on record.
the learned counsel appearing on either side, the following points arise for consideration in this appeal:-
“ (i) Whether the Power of Attorney can depose on behalf of the Principal in suit for specific performance?
(ii) Whether the suit for specific performance is maintainable when the contract itself is terminated?
(iii) Whether the unfulfilled contract can be enforceable?”
plea before the Trial Court that the Power of Attorney cannot represent the
Principal in a suit for specific performance. No issue was framed by the Trial Court in that regard. In fact, the Power of Attorney had knowledge about the execution of agreement for sale and as such, he is fully conversant with the agreement for sale entered by his Principal and the defendants 1 to 3. That apart, he is only looking after the subject property and as such, he can very well depose on behalf of his Principal. Therefore, the Judgment cited by the learned
counsel for the defendants 1 to 3 are not helpful to the case on hand.
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dated 15.03.2004, revealed that it never consist of any contingent clause to obtain patta, mutation of revenue records and ratification of classification of the suit property. In fact, pending proceedings before the revenue officials, the defendants 1 to 3 offered to sell their property. After knowing these facts, the plaintiff agreed to purchase. In fact, the plaintiff only insisted the first defendant to file a writ petition before this Court. Even before that, the first defendant filed a suit in O.S.No.1656 of 1990, on the file of the District Munsif Court, Poonamallee, for declaration. It was decreed in his favour. Only thereafter, he applied for ratification of classification and mutation of revenue records. When it was pending before the revenue officials, the defendants had entered into an agreement for sale with the plaintiff on 15.03.2004. Thereafter, the writ petition was filed by the first defendant in W.P.No.12820 of 2004. Therefore, the agreement for sale would not be hit by Section 31 of the Indian Contract Act.
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notice was issued by the plaintiff on 07.09.2006. In fact, on receipt of the same, the fourth defendant alone replied by way of reply notice dated 14.09.2006, thereby agreed to execute a sale deed in respect of her share in favour of the plaintiff. By way of a reply, the defendants 1 to 3 had sent a reply notice dated 22.09.2006. Therefore, it would not amount to termination of agreement for sale. As stated supra, they cannot take a plea of defect in title. They ought to have executed a sale deed as per the terms and conditions of the registered agreement for sale dated 15.03.2004. Therefore, the Judgment cited by the learned counsel for the defendants 1 to 3 are not helpful to the case on hand.
https://www.mhc.tn.gov.in/judis Page 12 of 14
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the suit and this Court finds no infirmity or illegality in the Judgment and Decree dated 18.01.2013 passed in O.S.No.168 of 2006 by the II Additional District Judge, Thiruvallur at Poonamallee, for interference by this Court and all the points are answered in favour of the plaintiff.
12.12.2023
Internet: Yes Index : Yes/No Speaking/Non Speaking order mn
To
The II Additional District Judge, Thiruvallur at Poonamallee.
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A.S.No.180 of 2013
G.K.ILANTHIRAIYAN. J,
mn
A.S.No.180 of 2013
12.12.2023
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3 issues framed by the court
Whether the Power of Attorney can depose on behalf of the Principal in a suit for specific performance?
Whether the suit for specific performance is maintainable when the contract itself is terminated?
Whether the unfulfilled contract can be enforceable?
Colour shows how this judgement treated each authority
Man Kaur (Dead) by LRs. Vs Hartar Singh SanghaDistinguished¶8
2010 10 SCC 512 · Who else cites this
I.S.Sikandar (dead) by LRs Vs. K.Subramani and othersDistinguished¶11
2013 15 SCC 27 · Who else cites this
Shri Baij Nath Vs M/s Ansal and Saigal Properties Pvt. LtdDistinguished¶12
1992 SCC OnLine Del 221 · Who else cites this
Kannappa Chettiar Vs Abbas Ali and othersApplied¶13
1952 2 SCC 124 · Who else cites this
1 provisions across 1 enactments
R.S.Ranganathan (died) represented by 1-6 R.Rajesh Babu, R.Suresh Babu, R.Shanthi, D.Amul, R.Amaravathi
R.Rangarajan represented by Power Agent, Kittusamy
Kannammal (died)
R.Gunasekar
R.Saroja
R.Dhamodaran
G.K.ILANTHIRAIYAN
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
