- Bookmark
- Share
- CaseIQ
Nallaya Gounder And Another v. P. Ramaswami Gounder (Died) And 3 Others
Judgment Summary — Thangamani, J.
Factual and Procedural Background
This is an appeal from the judgment and decree of the learned Subordinate Judge of Salem in O.S. No. 124 of 1981. The respondents (plaintiffs) sued for specific performance against five defendants; the appellants in this appeal are defendants 4 and 5. The plaintiffs alleged that defendants 1 to 3 entered into a sale agreement (Ex. A1) dated 27.8.1980 to sell certain suit properties to them for Rs. 52,500/-, received an advance of Rs. 20,000/-, and agreed to receive the balance and execute the sale deed. The plaintiffs claim they were put in possession on 16.11.1980 (the 1st of the Tamil month Karthigai) and have been in actual enjoyment since. The plaintiffs further alleged that defendants 1 to 3, together with the appellants, colluded to create Ex. B2 (a sale agreement) and Ex. B1 (a sale deed dated 2.1.1991) in favour of the appellants by antedating or fabricating those documents to deprive the plaintiffs of their rights under Ex. A1. Defendants 1 to 3 remained ex parte at trial.
The appellants denied the plaintiffs' case: they challenged Ex. A1's asserted date and the claim of delivery of possession, contended that they lawfully entered Ex. B2 with defendants 1 to 3 on 5.3.1980, that the sale deeds (Ex. B1 dated 2.1.1981 and Ex. B9 dated 13.1.1981) were executed in their favour and that they were put in possession, and they asserted that Ex. B2 was not antedated.
At trial the learned Subordinate Judge found Ex. A1 genuine, accepted plaintiffs' evidence of possession (Ex. A9 delivery receipt dated 16.11.1980), held Ex. B2 was antedated, and decreed specific performance in favour of the plaintiffs with costs. On appeal the Division Bench (Thangamani, J.) considered evidence and legal submissions and allowed the appeal, set aside the trial court's decree and dismissed the suit with costs in favour of defendants 4 and 5.
Legal Issues Presented
- Whether the plaintiffs' asserted agreement (Ex. A1 dated 27.8.1980) and their alleged delivery of possession (Ex. A9 dated 16.11.1980) were genuine or fabricated/antedated.
- Whether Ex. B2 (the appellants' agreement) preceded Ex. A1 (i.e., which instrument came into existence first), and whether Ex. B2/Ex. B1 were antedated or genuine.
- Whether the plaintiffs came to court with clean hands such that the equitable remedy of specific performance should be refused.
- Whether the plaint complied with the requirements of S.16(c) of the Specific Relief Act and the procedural/formal requisites (Forms 47 and 48 of Appendix A, Code of Civil Procedure) — specifically, whether the plaint averred demand by the plaintiff for performance and refusal by the defendants, and pleaded readiness and willingness to perform.
Arguments of the Parties
Plaintiffs' (Respondents') Case and Arguments
- Alleged an agreement of sale (Ex. A1) dated 27.8.1980 for Rs. 52,500/- between plaintiffs and defendants 1 to 3 and receipt of an advance of Rs. 20,000/-. The balance was to be paid and conveyance executed.
- Claimed actual delivery of possession on 16.11.1980 as evidenced by Ex. A9 delivery receipt and subsequent enjoyment of the suit properties.
- Asserted that defendants 1 to 3 postponed execution of sale deed and convened panchayats thrice; the last panchayat (1.1.1981) resulted in a promise to execute conveyance on 7.1.1981.
- Alleged collusion between defendants 1 to 3 and appellants to create Ex. B2 and Ex. B1 by antedating/fabrication to deprive the plaintiffs (thus appellants are not bona fide transferees without notice).
Appellants' (Defendants 4 & 5) Arguments
- Denied that Ex. A1 was executed on 27.8.1980 or that plaintiffs were given actual possession; disputed the existence or genuineness of Ex. A9 delivery receipt.
- Asserted that they lawfully entered Ex. B2 with defendants 1 to 3 on 5.3.1980 and that the vendors conveyed the properties to them by sale deeds Ex. B1 (2.1.1981) and Ex. B9 (13.1.1981), and that they had been put in actual possession.
- Pointed to suspicious circumstances: recitals in Ex. A1 (e.g., life enjoyment by vendors of a house on the property) inconsistent with alleged surrender of possession; late filing of Ex. A9 (produced only on 28.6.1982 during trial); inconsistencies and unexplained discrepancies in panchayat details and failure to call panchayatdars as witnesses.
- Argued that, as an equitable remedy, specific performance should be denied if plaintiffs did not come to court with clean hands; relied on precedent that falsity in material particulars disentitles a plaintiff to the equitable relief.
- Contended that the plaint did not plead necessary averments required by S.16(c) Specific Relief Act and Forms 47/48 (i.e., specific demand and refusal), and relied on authorities to say such non-compliance affects maintainability.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Ramaswamy Gounder v. Venkatachalam (1976(1) M.L.J. 243) | Falsity in a plaintiff's case disentitles him from the discretionary equitable relief of specific performance when the falsity affects essential ingredients necessary for the relief. | The bench relied on this decision to support the proposition that plaintiffs who had advanced inconsistent or false particulars (e.g., alleged delivery receipt and panchayat averments) could be denied specific performance for not coming with clean hands. |
| Vaiyapuri v. Vijayan (1978 T.L.N.J. 62) | The Court held that where the plaintiff's averments about material facts (such as payment of advance) are false, the plaintiff may be disentitled from the equitable relief of specific performance; the discretion must be exercised on recognised principles. | Cited to reinforce the rule that a plaintiff who makes false material averments relevant to the relief of specific performance can be denied the remedy; used to justify refusing specific performance here. |
| Appeal No. 355/84 (bench decision referred to in judgment) | Where a party bases relief on a document after making interpolations so as to create an appearance of right, that falsification suffices to refuse equitable relief. | The bench referred to its own earlier view in that appeal to support refusal of specific performance where the plaintiff has put forward an interpolated or falsified document; applied analogously to the present plaintiffs' alleged fabrication/late production of Ex. A9 and panchayat discrepancies. |
| Abdul Khader Rowther v. Sara Bai (1989 (4) S.C.C. 313) | A suit for specific performance must conform to the requirements in Forms 47 and 48 (First Schedule, CPC): the plaint must plead the agreement in complete detail, that the plaintiff specifically applied to the defendant to perform, that the defendant refused, and that the plaintiff is ready and willing to perform. | The appellants relied on this authority to argue that the plaint failed to aver demand and refusal and thus was defective; the Court considered the submission in light of the plaint's averments and Forms 47/48 requirements. |
| Prem Raj v. D.L.F. Housing and Construction (Private) Limited (1968 (3) SCR 648) | It is well settled that in a suit for specific performance the plaintiff should allege he is ready and willing to perform his part of the contract; absence of such an allegation may render the suit not maintainable. | The Court cited this authority in relation to the requirement of pleading readiness and willingness. It concluded, after examining the plaint, that the requirements of Forms 47 and 48 (including readiness and willingness) had been sufficiently complied with in the present case. |
Court's Reasoning and Analysis
The bench engaged in a factual and legal analysis addressing (a) the genuineness and chronology of competing documents (Ex. A1/Ex. A9 v. Ex. B2/Ex. B1/Ex. B9), (b) the credibility of the plaintiffs' evidence, and (c) compliance with statutory and procedural prerequisites for specific performance.
Evaluation of possession evidence and documentary chronology
- The Court scrutinised Ex. A1's recitals (for example, that a house on Survey No. 231/1 was to be enjoyed by certain vendors for life) and found those recitals inconsistent with the plaintiffs' assertion that those vendors surrendered occupation and handed over possession contrary to the instrument's terms. No satisfactory explanation was provided in evidence for this inconsistency.
- Ex. A9 (delivery receipt dated 16.11.1980) was central to the plaintiffs' possession claim. The Court noted that Ex. A9 was not mentioned in the plaintiffs' notice (Ex. A3) and was not included among documents listed in the plaint; it was filed only on 28.6.1982 during trial. The lateness and absence of prior reference cast doubt on its authenticity or bona fides.
- Discrepancies in the panchayat allegation: the plaint alleged three panchayats and named certain panchayatdars; the oral evidence (P.W.1) gave different names and did not explain discrepancies. The plaintiffs did not examine any of the panchayatdars to support the panchayat plea. The dates of the other panchayats were neither pleaded nor proved. The bench concluded that the panchayat plea was suspect and far from truth.
- Based on these documentary and testimonial infirmities, the Court concluded that Ex. B2 preceded Ex. A1 (contrary to the trial court's conclusion that Ex. A1 preceded Ex. B2) — i.e., there was a credible basis to find the appellants' agreement predated the plaintiffs' asserted agreement or that plaintiffs' evidence on chronology was unreliable.
Clean hands and equitable discretion
- The bench applied equitable principles: since specific performance is discretionary, a plaintiff who advances false material particulars or fabricates evidence may be disentitled to the remedy. The Court found positive indications that Ex. A9 was connected for the purpose of the case and that the panchayat averments were false or unproved.
- Relying on the authorities cited in the judgment, the Court held that plaintiffs had not come with clean hands, and that this defect justified negativing specific performance even if Ex. A1 were to be treated as earlier in time.
Compliance with statutory/formal pleading requirements (S.16(c) and Forms 47/48)
- The appellants argued that under S.16(c) of the Specific Relief Act, and the mandatory language of Form Nos. 47 and 48 (CPC), a plaint for specific performance must plead that the plaintiff made a demand for performance and that the defendant refused, and must aver readiness and willingness to perform. Reliance was placed upon Abdul Khader Rowther v. Sara Bai and Prem Raj v. D.L.F.
- The Court examined the plaint and observed that it did contain statements that the plaintiffs were ready and willing to perform and also stated that the plaintiffs convened panchayats in which defendants 1 to 3 agreed to execute conveyance and later sold the properties to the appellants under Ex. B1 and B9. On that basis the bench concluded there was sufficient compliance with the requirements of Forms 47 and 48.
- However, notwithstanding that procedural sufficiency finding, the equitable defect (lack of clean hands, fabrication/late production of key evidence and unproved panchayat averments) remained a bar to granting the discretionary remedy.
Holding and Implications
Holding: The Court made the following dispositive orders:
Appeal allowed; the judgment and decree of the trial court are set aside; the suit for specific performance is dismissed.
Consequences and implications:
- Direct effect on the parties: The plaintiffs' suit for specific performance was dismissed; defendants 4 and 5 (the appellants) obtained a judgment in their favour and were awarded costs throughout. The trial court's decree in favour of the plaintiffs was overturned.
- Equitable principle reaffirmed: The bench applied established equitable principles that a plaintiff seeking specific performance must come to court with clean hands — falsity or fabrication in material particulars relevant to the claim may disentitle the plaintiff to the discretionary relief even if other procedural requisites are satisfied.
- Procedural/form pleading point: Although the Court reiterated the requirement under S.16(c) and Forms 47/48 for appropriate averments (demand/refusal, readiness and willingness), it found the plaint's averments sufficient in the present case and therefore did not dismiss on purely procedural grounds.
- On precedent-setting: The judgment applies existing equitable and procedural principles to the facts of this case; the opinion does not state that it establishes any new legal precedent beyond applying those principles to the material before it.
End of summary. This summary is strictly based on the content of the provided opinion and does not add or infer facts beyond that text.
JUDGMENT — Thangamani, J.
Appeal against the judgment and decree of learned Subordinate Judge of Salem in O.S No. 124 of 1981 on his file.
2. The appellants are defendants 4 and 5 in the trial court. Respondents-Plaintiffs instituted the suit for specific performance against the appellants and three others alleging that on 27.8.1980 defendants 1 to 3 entered into Ex. A1 sale agreement with them undertaking to sell the suit properties for Rs. 52,500/-. They received a portion of the sale price of Rs. 20,000/- as advance and agreed to receive the balance from that date and to execute the sale deed in favour of the plaintiffs. On 16.11.1980 which corresponds to the 1st of Tamil month Karthigai, the plaintiffs were put in possession of the properties as agreed and since then they are in actual enjoyment of them. Appellants were aware of Ex. A1 agreement as well as handing over possession of the properties to the plaintiffs by defendants 1 to 3. Since defendants 1 to 3 were postponing the execution of the sale deed, the plaintiffs convened panchayat thrice. The last panchayat took place at the house of Village Munsif or Konnayar on 1.1.1981 in which defendants 1 to 3 undertook to execute the conveyance on 7.1.1981 Appellants were also present along with defendants 1 to 3 in that panchayat. However, defendants 1 to 3 and the appellants have colluded together and created Ex. B2 sale agreement dated 3.3.1980 in favour of the appellants on 3.1.1991 by antedating the same. Ex. B1 sale deed dated 2.1.1991 was also executed by defendants 1 to 3 in favour of the appellants in respect of the suit properties fraudulently in order to deprive the plaintiffs of their right. The recitals as to consideration, possession are all false and fabricated so as to get over the right of the plaintiffs under Ex. A1 agreement dated 27.8.1980 Appellants cannot derive any right, title or interest in the suit properties by virtue or Ex. B1 sale deed. Appellants are not bona fide transferees for value without notice of the earlier agreement for sale in favour of the plaintiffs and their possession.
3. Defendants 1 to 3 remained ex parte in the suit.
4. The appellants resisted the suit denying that Ex. A1 came into existence on 27.8.1980 and that the plaintiffs were ever in actual possession of the properties and that there was any mediation in this connection. They pleaded that they lawfully entered into Ex. B2 agreement with defendants 1 to 3 on 5.3.1980 and in pursuance of the same, defendants 1 to 3 conveyed the suit properties in favour of them under two sale deed Ex. B1 dated 2.1.1981 and Ex. B9 dated 13.1.1981 They were also put in actual possession of the suit properties. Till then their vendors alone were in enjoyment of the properties and Ex. B2 agreement is not an antedated one.
5. Holding that Ex. A1 is a genuine agreement and there is nothing to suspect that it was created later on by antedating the instrument, that appellants were aware of the existence of Ex. A1 agreement, that possession was delivered to the plaintiffs as per Ex. A9 delivery receipt dated 16.11.1980, that Ex. B2 sale agreement was created by antedating the same and that the plaintiffs had came to court with clean hands, the trial court decreed the suit with costs for specific performance.
6. The endeavour of Mr. G. Subramanian, learned senior counsel for the appellants was mainly to place before the Court the suspicious circumstances attendant on the transactions and to demonstrate that Ex. A1 sale agreement dated 27.8.1980 was created subsequent to the coming into existence of Ex. B2 agreement on 5.3.1980 In other words, his argument was that Ex. B2 agreement preceded Ex. A1 agreement. The first submission in this connection relates to delivery of possession of the property. It is the evidence or the first plaintiff as P.W 1 that on 27.8.1980 defendants 1 to 3 agreed to convey the suit items to them for Rs. 52,500/- and received an advance of Rs. 20,000/- The sale deed was to be executed within a period of 5-1/2 months. He was willing to pay the balance of sale consideration and get the sale deed executed. On 16.11.1980 defendants 1 to 3 handed over possession of the properties to him as per Ex. A9 delivery receipt. Learned senior counsel for the appellants pointed out that as per the recitals in Ex. A1 the property in Survey No. 231/1 is a plot of 30 cents with a five anganam thatched shed thereon. 1st defendant Periyakaruppa Gounder and third defendant Nellammal are to enjoy this property till their lifetime and only thereafter appellants are to take possession of the same. There is no reason why contrary to the express recitals in Ex. A1. defendants 1 and 3 should have surrendered the right to reside in that house till their lifetime. None of the witnesses examined on the side of the plaintiff seeks to give any explanation on this aspect. So, in all probability plaintiffs were never given possession as indicated in Ex. A9 delivery receipt.
7. Ex. A1 agreement reads that the properties are to be handed over to the prospective purchasers on the 1st of Karthigai month. The specific averments in the plaint are to the effect that defendants 1 to 3 are closely related to defendants 4 and 5, and they are colluding with each other. It is not the evidence of the first plaintiff as P.W 1 that defendants 1 to 3 are, in any way related to or interested in him. While so, it passes one's comprehension as to the necessity or urgency for defendants 1 to 3 to undertake and later on hand over possession of the properties to the plaintiffs even before receiving sale consideration in full. Besides the version of the first plaintiff as P.W 1 that because there were standing cotton crops, the venders undertook to hand over possession on the first of Karthigai month does not inspire confidence. Had it been the real reason, certainly this would have found place in Ex. A1 sale agreement itself.
8. Ex. A9 purports to be a delivery receipt dated 16.11.1980 evidencing handing over possession of the suit properties by defendants 1 to 3 in favour of the plaintiffs. No doubt Ex. A1 agreement recites that on the 1st of Tamil Month Karthigai the vendors are to hand over possession to the vendees. And in Ex. A3 the notice dated 6.1.1981 issued by the plaintiffs to the defendants stating that Ex. B2 agreement has been created by ante-dating. Mention is made about the plaintiffs taking possession on 16.11.1980 However, it is significant to note that this notice makes no reference to Ex. A9 delivery receipt. Even the plaint is conspicuously silent about the execution of Ex. A9 delivery receipt, even though there is an allegation that possession was handed over on 16.11.1980 Besides, a scrutiny of Ex. A9 reveals that it has been filed into Court only on 28.6.1982 during trial. Had it really been in existence on the date of document, such a vital piece of evidence would not have been filed to be disclosed in the list of documents appended to the plaint.
[Discussion of evidence omitted]
xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx
14. …. We find as per the plaint averment, the plaintiffs convened panchayat thrice and the last panchayat took place at the house of the Village Munsif of Konnayar on 1.1.81 in which it was decided and the defendants 1 to 3 agreed to convey the suit properties to the plaintiff free of all encumbrances at their cost on 7.1.81 The Panchayatdars are Sellappa Gounder, son of Periya Gounder, Sankaranpalayam (2) Kaliyanna Gounder, Nallamapalayam (3) Ponnayaru Poon gounder, Kuppuswami gounder, Seiliyamman Koil Trustee Konnaryaru and Ex. Village Munsif of Konnayar.” However, in his evidence P.W 1 gives the names of panchayatdars as Kuppanna Gounder, Konnayar Munsif, Sellappa Gounder, Pulli Gounder and Subramanian. The discrepancy in the names of the panchayatdars mentioned in the plaint and the evidence has not been explained. And the plaintiffs have not chosen to examine any of the panchayatdars to substantiate their allegations. Though Ex. A3 notice has been issued on 6.1.1981, subsequent to the date of the last panchayat, the said panchayat is not referred to in this notice. Ex. A1 agreement stipulates that the sale is to be completed within 5 1/2 months from 27.8.1980 However, the plaintiffs have not given any reason for convening three Panchayats within the date agreed to under agreement Ex. A1. While the date of the last panchayat alone finds a place in the plaint, the dates of other panchayats are neither pleaded nor spoken to in evidence. So there could be no doubt that this plea of panchayat is also far from truth. In the circumstances, we are of the view that it is Ex. B2 agreement which preceded Ex. A1 agreement and not vice-versa as concluded by learned trial Judge.
15. Learned senior counsel for the appellants next submitted that the remedy of specific relief being an equitable one, the plaintiffs must come to Court with clean hands. In this case there is positive proof that Ex. A9 delivery receipt has been connected for the purpose of this case. We have also seen that the plaintiffs have put forward a false case regarding convening of panchayat. So, even if we are to take that Ex. A1 agreement has come into existence prior to Ex. A, agreement, the plaintiffs cannot maintain this action. In support of his contention he cited the decision of Ismail, J. (as he then was) in Ramaswamy Gounder v. Venkatachalam (1976(1) M.L.J 243). In that case the plaintiff denied in his evidence that he averred in the plaint that the defendants did not come to the Sub-Registrar's Office. Further, while the allegation in the plaint was to the effect that prior to a particular date he had tendered the entire balance of Rs. 14,000/- to the defendant, it was borne out from his evidence that he came into possession of part of the money only at a later date. There was also discrepancy in his evidence regarding the persons in whose names the stamp papers were purchased. Besides, his version in the witness box on the receipt of the notice was not consistent with the averment in the plaint. On the question whether the plaintiff would be entitled to the relief of specific performance, it was held that the falsity of the case put forward by the plaintiff disentitled him from obtaining the discretionary relief of specific performance of agreement. The falsity of the case directly impinged on the essential ingredients and elements necessary for claiming the relief. In Vaiyapuri v. Vijayan (1978 T.L.N.J 62) the Court found that a sum of Rs. 11,000/- was not paid as advance as contended by the plaintiff and that what was paid was only a sum of Rs. 1,000/-. The Division Bench comprising of Ismail and Nainar Sundaram, JJ. held that the plaintiff who comes to the Court with a false case in material ingredients necessary for the grant of relief of specific performance, will not be entitled to the equitable remedy and is in the discretion of the Court, which discretion has to be exercised according to recognised principles of law and not arbitrarily. In Appeal No. 355/84 we had occasion to consider the same question. In that case the appellant based his relief on Ex. A1 agreement after making interpolation so as to make it appear that he has a right in it. On the ratio laid down in the decisions referred to above, this Bench took the view that that was sufficient to refuse the relief to the appellant. So, in the present action also we have no hesitation in negativing specific performance for the reason that the plaintiffs have not come forward with clean hands in asking for the equitable relief.
16. Under S. 16(c) of the Specific Relief Act, specific performance of a contract cannot be enforced in favour of a person who fails to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than terms, the performance of which has been prevented or waived by the defendants. Learned senior counsel for the appellants submitted that the plaint in this case did not contain any averment to the effect that the plaintiffs made a demand for specific performance and there was a refusal on the part of defendants 1 to 3 to comply with the said demand. It will not be sufficient if the plaintiff pleads and proves that he is ready and willing to perform his part of the contract, but he must also plead that he made a demand on the defendant for performance of the contract and the defendant refused to comply with the same and that the language refused to comply with the same and that the language of R. 3 of O. 6, of the Code of Civil Procedure is mandatory and any plaint in a suit for specific performance has to be strictly in conformity with Form No. 47 or 48 of Appendix A of the Code of Civil Procedure Learned counsel for the appellants further pointed out that the plaint does not contain averments regarding cause of action also. He relied on the decision in Abdul Khader Rowther v. Sara Bai (1989 (4) S.C.C 313) wherein the Apex Court has laid down: “A suit for specific performance has to conform to the requirements prescribed in Forms 47 and 48 or the First Schedule in the Civil Procedure Code. In a suit for specific performance it is incumbent on the plaintiff not only to set out agreement on the basis of which he sues in all its details, he must go further and plead that be has applied to the defendant specifically to perform the agreement pleaded by him but the defendant has not done so. He must further plead that he has been and is still ready and willing to specifically performa his part of the agreement. Neither in the plaint nor at any subsequent stage of the suit the plaintiff has taken those pleas. As observed by this Court in Prem Raj v. D.L.F Housing and Construction (Private) Limited (1968 (3) SCR 648) that it is well settled that in a suit for specific performance plaintiff should allege that he is ready and willing to perform his part of the contract and in the absence of such an allegation the suit is not maintainable.”
17. A perusal of Form Nos. 47 and 48 shows that in a suit for specific performance there must be averments to the effect that plaintiff has applied to the defendant specifically to perform the agreement on his part, but the defendant has not done so. The plaintiff was still ready and willing specifically to perform the agreement on his part, of which the defendant had notice. And we find from the plaint that besides stating that they are ready and willing to perform their part of the contract mention is made of the plaintiffs convening panchayat thrice and defendants 1 to 3 agreeing to execute the conveyance and later on selling the properties in favour of the appellants under Ex. B1 and B.9 So in our view there is sufficient compliance of the requirements of Forms 47 and 48 of Appendix-A of the Code of Civil Procedure.
18. In the result, the appeal is allowed and the judgment and decree of the trial court are set aside and the suit is dismissed with costs of defendants 4 and 5 (appellants) throughout.
RR/VCS
Alert