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Case Number

A.S No. 371 of 1983

Advocates

For the Appellant: S. Subramani M. Balagovindan

Judges

P.C Balakrishna Menon
P.K Shamsuddin, JJ.

Acts

sec. 12 of the Specific Relief Act
Indian Succession Act, 1925.
Indian Succession Act

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Smart Summary

Judgment Summary — Balakrishna Menon, J.

Factual and Procedural Background

On 23 May 1977 defendants (the 2nd defendant for himself and as power-of-attorney-holder for defendants 2 to 5) entered into an agreement (Ext. A1) to sell 1 acre 11 cents of land to the plaintiff for Rs. 60,000. The plaintiff paid an advance of Rs. 20,000 (acknowledged in Ext. A1). The agreement required payment of the balance Rs. 40,000 and completion of the sale within two months.

The plaintiff issued a demand notice (Ext. A4) on 21 October 1977 and subsequent notices (Exts. A5–A8) for performance. On failure by the defendants to execute the sale deed, the plaintiff filed a suit for specific performance. The defendants raised various pleas; two principal contentions relevant on appeal were: (1) that the time fixed for performance had expired before any demand was made and therefore the defendants were not bound; and (2) that on the death of the original owner (Kuncheria T. Marattukulam) the property devolved on his wife and all his children (including daughters who were not parties) under the Indian Succession Act, 1925, so defendants 1 to 5 could not convey full title.

The trial court overruled the defendants' contentions and decreed specific performance, directing defendants 1 to 5 to execute the sale deed in favour of the plaintiff on the plaintiff paying the balance consideration of Rs. 40,005 within two months from the date of the decree. The 2nd defendant appealed against this decree.

Legal Issues Presented

Whether the defendants were relieved from performing the agreement because the time fixed for completion (two months from 23-5-1977) had expired before the plaintiff made a demand (Ext. A4 dated 21‑10‑1977).
Whether defendants 1 to 5 could be compelled to convey the property where intestate succession operated on the death of the original owner, resulting in daughters (not parties) having shares — and whether the plaintiff's failure to plead willingness under section 12 of the Specific Relief Act barred relief.

Arguments of the Parties

Appellant's (Defendant's) Arguments

Time-for-performance argument: The contract required completion within two months from 23-5-1977; that period expired on 23-7-1977 and the plaintiff's first demand was only on 21-10-1977, so the defendants were not bound to perform.
Title/competency argument: On the death of Kuncheria T. Marattukulam (in 1974) the property devolved by intestacy on his wife and all his children under the Indian Succession Act, 1925; daughters (not parties to the agreement or suit) therefore have an interest and defendants 1 to 5 cannot convey full title. Relatedly, the plaintiff had not pleaded willingness to accept an assignment of the defendants' shares under section 12 of the Specific Relief Act, and hence such relief could not be granted.

The opinion states that the defendants raised various pleas in answer to the plaint but confines its consideration on appeal to the two contentions summarized above.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Govind Prasad Chaturvedi v. Hari Dutt Shastri (1977 SC 1005)	That time is not the essence of a contract for sale of land (i.e., an agreement can be enforced after the stipulated time).	The court relied on this authority to reject the appellant's contention that the lapse of the two‑month period automatically discharged the vendors from performance.
Gomathinayagam Pillai v. Palaniswami (AIR 1967 SC 868)	Same principle: time is not necessarily the essence in contracts for sale of land.	Used alongside Govind Prasad to support the proposition that delayed demand does not prevent specific performance.
Mary Roy v. State of Kerala (1986 KLT 508)	That intestate succession of an Indian Christian dying after the commencement of the Part B States (Law) Act, 1951 is governed by Chapter II of Part V of the Indian Succession Act, 1925.	The court accepted that the Indian Succession Act governs succession in the present facts and therefore daughters are legal heirs; this formed the factual legal backdrop to the title objection raised by the appellant.
Balmukand v. Kamala Wati (AIR 1964 SC 1385)	In the specific factual context of a Kartha of a joint Hindu family, the Supreme Court observed that a decree cannot be granted for sale of even the share due to executants where the agreement is not binding on the whole family; observation linked to the need for a plaintiff to plead willingness to pay entire consideration if relief is to affect non‑contracting interests.	The court noted this decision but distinguished it on facts: that case concerned attempts to bind non‑contracting co‑owners/kin under Hindu joint family principles; it was not applicable to the present case where the plaintiff did not seek to bind the daughters or obtain their shares.
Balakrishnan v. Kunjukrishnan (ILR 1981 (2) Ker. 218)	Held that in the absence of a specific plea, relief under section 12 of the Specific Relief Act cannot be granted.	The court recognized this authority but distinguished it factually: the present plaintiff does not seek relief under section 12 to obtain non‑party shares, so the decision did not bar specific performance against the defendants who were parties to the agreement.
Baluswami Aiyar v. Lakshmana Aiyar (AIR 1921 Madras 172) (Full Bench)	Where a purchaser impleads only the executant vendors, there is no necessity to determine the vendor's title; a purchaser willing to take the title the vendor has is not precluded from specific performance merely because title may be defeasible by third parties. But if the purchaser seeks to bind non‑parties, issues of their rights may be necessary.	The court relied heavily on this Full Bench observation to hold that defendants could not avoid the contract by raising title of non‑parties and that the purchaser may obtain the vendor's title (subject to third‑party defeasibility) when only executants are sued.
Muni Samappa v. Gurunanjappa (A.I.R. 1950 Mad. 90)	When only executants are sued and no reference is made to other persons, it is unnecessary to determine vendor's title; purchaser willing to accept vendor's title may obtain specific performance despite potential third‑party challenges.	Applied to support the principle that vendor's title need not be decided and is not a defence for vendors to avoid performance when the purchaser sues only executants.
Palanisamy v. Komara Chettiar (AIR 1950 Madras 91)	Where plaintiff impleads only vendors and does not allege the agreement binds other persons (e.g., sons), those other persons are not necessary parties and the vendor's or their sons' title is not the question in the suit.	Used to reinforce that the sons/daughters of a vendor are not automatically necessary parties and that the plaintiff's willingness to take the vendor's title is decisive for proceeding with specific performance.
Mir Abdul Hakeen Khan v. Abdul Mannan Khadri (AIR 1972 Andhra Pradesh 178)	In a specific performance suit, it is unnecessary to determine the vendor's title; vendor cannot be permitted to set up defective title as a defence to avoid performance.	Cited in support of the view that the trial court was wrong to refuse specific performance on the ground of a possibly defective vendor title and that vendors cannot set up third‑party title as a defence.
Deenanath v. Chunnilal (AIR 1975 Rajasthan 69) (per S.N. Modi J.)	Expressed the view that a vendor cannot be permitted to set up lack of title or defective title as a defence to a specific performance suit; reliance upon similar authorities.	Reinforced the court's conclusion that the vendors could not successfully defend by asserting third‑party title and that specific performance was appropriate.

Court's Reasoning and Analysis

The court proceeded in two analytical stages corresponding to the principal contentions on appeal.

Time for performance: The court observed the established principle from higher authorities that time is not necessarily the essence of a contract for sale of land. Citing Govind Prasad Chaturvedi v. Hari Dutt Shastri and Gomathinayagam Pillai v. Palaniswami, the court held that an agreement to sell can be enforced even after the time stipulated between the parties. Applying that principle, the court rejected the appellant's contention that the defendants were absolved from performance because the plaintiff's demand was made after the two‑month period.
Title/third‑party interest issue: The court accepted that upon the death of Kuncheria (in 1974) succession among Indian Christians is governed by the Indian Succession Act, 1925 (as explained in Mary Roy v. State of Kerala), and that daughters are legal heirs. However, the court examined whether that fact permitted defendants to avoid their contractual obligation by asserting the title of persons who were not parties to the suit.
The court analyzed and distinguished authorities relied upon by the appellant (e.g., Balmukand v. Kamala Wati and Balakrishnan v. Kunjukrishnan) which were concerned with attempts to bind non‑contracting co‑owners or where relief under section 12 was sought without appropriate pleadings. It then reviewed Full Bench and other decisions (Baluswami Aiyar, Muni Samappa, Palanisamy, Mir Abdul Hakeen Khan, Deenanath v. Chunnilal) that established a countervailing principle: when a purchaser sues only the executant vendors and there is no attempt to bind non‑parties, the court need not go into the vendor's title, and the vendor cannot set up third‑party title as a defence to avoid specific performance.
Applying these principles, the court concluded that the question whether the vendors had full title was not properly before the suit; if the title were defensible by third parties not before the court, the purchaser would simply obtain whatever title the vendors themselves had. The vendors could not successfully defeat specific performance by asserting the title of non‑parties who were not impleaded.

On these bases the court found the trial court correctly decreed specific performance in favour of the plaintiff and against defendants 1 to 5.

Holding and Implications

APPEAL DISMISSED.

Direct effect on the parties:

The decree of the lower court ordering specific performance stands: defendants 1 to 5 are to execute the sale deed in favour of the plaintiff on the plaintiff paying the balance consideration (as specified in the decree, Rs. 40,005) within two months from the date of the decree.
The appeal is dismissed "in the circumstances without any order as to costs" (i.e., no costs awarded).

Broader implications:

The court applied established principles that (a) time stipulations in agreements for sale of land are not automatically fatal to specific performance and (b) vendors sued alone cannot avoid performance by setting up the title of non‑parties; a purchaser who sues only the executants is entitled to obtain whatever title the vendors themselves could pass, even if third parties not before the court might later challenge that title.
The opinion does not announce any new legal principle or change in law; it applies and distinguishes earlier authorities to the facts before it.

This summary has been prepared exclusively from the content of the provided opinion. No information has been inferred beyond what the opinion itself states.

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M.K Marattukulam v. Dhirajal Hemchand & Others

Balakrishna Menon, J.:— The 2nd defendant for self, and as power-of-attorney-holder of defendants 2 to 5 entered into an agreement Ext A1 dated 23-5-1977 for sale of the suit property 1 acre 11 cents in extent to the plaintiff for a consideration of Rs. 60,000/-. The payment of advance Rs. 20,000/- is acknowledged in Ext. A1. As per the terms, of the agreement the balance Rs. 40,000/- is to be paid and the sale transaction is to be completed within a period of two months. The property belonged to Kuncheria T. Marattukulam, father of defendants 1 to 4 and the husband of the 5th defendant. Ext. A1 asserts that on the death of Kuncheria T. Marattukulam the property has devolved on defendants 1 to 5. The plaintiff issued notice Ext. A4 on 21-10-1977 demanding performance of the contract by the defendants. Exts. A5 to A8 are subsequent notices for the same purpose. On failure of the defendants to execute the sale deed, the plaintiff filed the present suit for specific performance of the contract. The defendants raised various pleas in answer to the plaint. For the purpose of this appeal it is necessary to advert only to two of the contentions raised by the defendants viz. (1) that the time fixed for performance of the contract had expired before the plaintiff made a demand and hence the defendants are not bound to perform the contract, and (2) on the death of Kuncheria T. Marattukulam the property devolved on his wife and all his children including for daughters who are not parties to the agreement, and hence the defendants could not convey full title to the property as agreed to between the parties. The court below overruled all the contentions of the defendants and decreed for specific performance of the contract directing defendants 1 to 5 to executet he sale deed in favour of the plaintiff on the plaintiff paying the balance consideration of Rs. 40,005/- within two months from the date of the decree. The 2nd defendant has appealed against this decree.

2. Counsel for the appellant submits that the defendants are not bound to execute the sale deed as the time fixed for completion of the transaction expired on 23-7-1977 and a demand for performance was made by Ext. A4 notice only on 21-10-1977.

3. It is well settled that time is not the essence of a contract for sale of land and an agreement can be enforced even after the time stipulated between the parties (Vide Govind Prasad Chaturvedi v. Hari Dutt Shastri, 1977 SC 1005, and Gomathinayagam Pillai v. Palaniswami, AIR 1967 SC 868).

4. The more formidable contention raised by learned counsel for the appellant is on point No. 2 stated above Kuncheria died in 1974 and his assets devolved on his wife and all his children. The Travancore Christian Succession Act, 1072 stood repealed on the coming into fores of the Part B States (Law) Act, 1951 and intestate succession to the estate of a deceased Indian Christian is governed by Chapter II of Part V of the Indian Succession Act, 1925. The daughters are also legal heirs of the deceased and defendants 1 to 5 are not competent to convey full title to the property in term of the agreement Ext. A1. It is also contended that the plaintiff had not pleaded his willingness to accept an assignment of the share due to defendants 1 to 5 in terms of sec. 12 of the Specific Relief Act and no such relief can also be granted in the present suit.

5. If is true that intestate succession to the assets of a deceased Indian Christian dying after the commencement of the Part B States (Law) Act, 1951 is governed by Chapter II of Part V of the Indian Succession Act as held by the Supreme Court in Mary Roy v. State of Kerala (1986 KLT 508). The further question is whether a decree for specific performance can be passed against defendants I to 5 who had agreed to convey the property to the plaintiff. Counsel for the appellant relies on the decision in Balmukand v. Kamala Wati (AIR 1964 SC 1385) in support of the proposition that a decree cannot be granted for sale of even the share due to the executants of the agreement. In the case before the Supreme Court the Kartha of a joint Hindu family agreed to convey joint family property to the plaintiff. It was found that the proposed conveyance was not for necessity or benefit and cannot be binding on the joint family. On that finding the prayer for specific performance was declined. It is in that context that the Supreme Court observed that for want of a claim by the plaintiff expressing his willingness to pay the entire consideration for obtaining a decree against the interests of the kartha in the property, no decree can be granted even in respect of the share due to the contracting party. Counsel relies also on the decision of a Division Bench of this Court in Balakrishnan v. Kunjukrishnan (ILR 1981 (2) Ker. 218) wherein it was held that in the absence of a specific plea, no relief can be granted under sec. 12 of the Specific Relief Act. In the case before the Division Bench there was an agreement for sale of 50 cents of land by the defendant to the plaintiff. The defendant had later sold 40 cents to strangers who were found to be bona fide purchasers for value without notice of the prior agreement. In those circumstances the Division Bench observed that the plaintiff can claim only the remaining 10 cents on satisfaction of the conditions mentioned in sec. 12 of the Specific Relief Act. In the absence of pleading to that effect it was held that no decree can be granted directing the sale even of the 10 cents.

6. These decisions can have no application to the present case where the plaintiff does not seek to obtain a conveyance of the share, if any, due to the daughters of Kuncheria, who are not even parties to the suit. The plaintiff seeks enforcement of the contract binding on defendants 1 to 5 and the question is whether they are entitled to avoid the contract by setting up a plea of title of persons who are not parties to the suit. A Full Bench of the Madras High Court in Baluswami Aiyar v. Lakshmana Aiyar (AIR 1921 Madras 172) stated at page 178:

“Where a person sues for specific performance of an agreement to convey and simply impleads the party bound to carry out the agreement there is no necessity to determine the question of the vendor's title, and the fact that the title which the purchaser may acquire might be defeasible by a third party is no ground for refusing specific performance if the purchaser is willing to take such title as the vendor has. But where a party seeking specific performance seeks to bind the interests of persons not parties to the contract alleging grounds which under Hindu Law would bind their interests and enable the vendor to give a good title as against them and make them parties, it is difficult to see how the question as to the right of the contracting parties to convey any interest except his own can be avoided and a decree passed the effect of which will merely be to create a multiplicity of suits.”

7. In that case a suit was brought by cartain plaintiffs to enforce specific performance of a contract to sell a house and ground made by defendant No. 1 alone. The plaintiff claimed that defendant 1's son, defendant 2, who was not a party to the contract, was nevertheless bound by the agreement entered into by the father because he had consented to the contract and also because the sale was for the benefit of the family. These pleas were denied and the learned trial Judge held that the pleas were not established and the suit was dismissed against the son. The question for decision was whether in such circumstances specific performance could be decreed against defendant 1 alone and, if it could be on what terms. The learned Judge's answer to the question was specific performance of the contract could not be granted so as to direct execution of a conveyance of the entire property. But it was open to the purchaser to get specific performance so far as the share of the vendor was concerned on payment of the consideration agreed upon without any abatement. It is in that context the Full Bench made the above observation. In the present case the plaintiff does not seek a conveyance of the share, if any, due to the daughters of Kuncheria. There is also no allegation in the plaint that the agreement sued on is binding on them Under these circumstances the earlier part of the observation of the Full Bench quoted above would squarely apply to the present case.

8. After referring to the above decision of the Full Bench a Division Bench of the Madras High Court consisting of Rajamannar C.J and Balakrishna Ayyar, J. in Muni Samappa v. Gurunanjappa (A.I.R 1950 Mad. 90) held that when a person sues for specific performance of an agreement to sell property impleading only the executants of the agreement who are the only persons bound to carry out the agreement and the plaint does not make any reference to persons other than those who are parties to the agreement, there is no necessity to determine the question of the vendor's title and the fact that the title which the purchaser may acquire might be defensible at the instance of third parties is not ground for refusing specific performance if the purchaser is willing to take such title as the vendors had. In Palanisamy v. Komara Chettiar (AIR 1950 Madras 91) Krishnaswami Nayudu, J. held that in a case where the plaintiff sues for specific performance of an agreement to sell, impleading only the vendors and without any allegation in the plaint that the agreement is binding on their sons, the title of the vendors or the right of their sons to the properties agreed to be sold is not the question involved in the suit and therefore the sons of the vendors are not necessary parties to the suit. The learned Judge stated at page 93:

“The plaintiff-petitioner is willing to take such title as the vendors, that is, defendants 1 and 2 could pass in his favour. The learned Subordinate Judge states to avoid multiplicity of suits the addition of parties might be allowed. In an application under O. 1 R. 10, Civil P.C the Court should consider mainly whether the presence of the proposed parties would be necessary for adjudicating upon the questions that are involved in the suit and an order for addition of parties should not be made merely with a view to avoid multiplicity of suits if otherwise their presence is not necessary for determining the real questions involved in the suit. In a simple suit for specific performance like the present one filed against the vendors, the sons of the vendors are not necessary parties.”

9. Following - the decisions in Baluswami Aiyar's case (AIR 1921 Madras 172) and in Palaniswamy's case (AIR 1950 Mad. 91), A Division Bench of the Andhra Pradesh High Court in Mir Abdul Hakeen Khan v. Abdul Mannan Khadri (AIR 1972 Andra Pradesh 178) held that in a suit for specific performance on the foot of an agreement to sell property, there is no need to determine the question of the vendor's title. It was accordingly held that the question whether the property involved in the suit belonged to a partnership to which the defendant was a partner or separately to the defendant ought not have been gone into by the trial court and that court was wrong in refusing specific performance to the purchaser on the ground that the vendor's title was defective. The same view is expressed by S.N Modi J. in Deenanath v. Chunnilal (AIR 1975 Rajasthan 69) where the learned Judge observed at page 71:

“In my opinion, the vendor cannot be permitted to set up a defence in a suit for specific performance brought by the purchaser that he had no title or had defective title to the property which he had agreed to sell. In support of my view I place reliance on Mir Abdul Hakeem Khan v. Abdul Mannan Khadri, AIR 1972 Andh Pra 178; Baluswami Aiyer v. Lakshmana Aiyar, AIR 1921 Mad 172 (FB) and Muni Samappa v. Gurunanjappa, AIR 1950 Mad 90.”

10. Whether the vendors had full title to the property agreed to be conveyed to the plaintiff is not a question properly arising for decision in the present suit for specific performance. If their title is defensible at the instance of persons not parties to the suit the purchaser will get only such title as the vendors themselves had in the property, It is not open to the vendors to set up title of third parties in defence to the suit for specific performance. We, therefore, hold that the court below was perfectly right in decreeing specific performance of the agreement Ext. A1.

11. The appeal fails and is dismissed, in the circumstances without any order as to costs.

M.K Marattukulam v. Dhirajal Hemchand & Others

Judgment Summary — Balakrishna Menon, J.

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Appellant's (Defendant's) Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

M.K Marattukulam v. Dhirajal Hemchand & Others

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