FUTNANI DAIRY FARM Vs. P RANGASWAMY NADAR

JUDGEMENT

(1.) DEFENDANTS 2 and 3 are the appellants. They are aggrieved by the decree for specific performance passed by the First Additional Subordinate Judge, Chengalpattu, in favour of the first respondent herein. For the sake of convenience, the parties are referred to by their rank in the suit.

(2.) THE case of the plaintiff is as follows: THE first defendant, who is the owner of the suit property which is an agricultural land comprised in Survey Numbers 14 and 14/1 in Egathur Village, Chingleput District of an extent of 7. 35 acres fully described in the plaint, executed an agreement at Srivaikuntam on 20.9.1982 in favour of the plaintiff agreeing to convey the property to him for a total sum of Rs. 1,65,000 and received an advance of Rs.15,000. THE agreement stipulated that the sale should be completed and a deed should be executed and registered within six months therefrom, and that the plaintiff would be at liberty to take possession of the property in the meanwhile. THE plaintiff has always been ready and willing to pay the balance of consideration and tenders the same along with the plaint. THE plaintiff has also taken possession of the property. It would appear that on 11.10.1982 the first defendant executed and registered a sale deed in relation to the said property in favour of the second defendant in violation of the agreement in favour of the plaintiff. THE plaintiff came to know of the same from a letter received by him from the first defendant that her husband, who died on 7. 7. 1982, had borrowed some money from one of the partners of the second defendant firm and that she was compelled to sell the property to the second defendant. She expressed her inability to perform the agreement and offered to return the advance of Rs.15,000. THE second defendant represented by the third defendant, one of the partners, was always aware of the agreement in favour of the plaintiff and in order to make it appear to be a valid sale in his favour ante-dated the document as if it was executed on 30.6.1982. Defendants 2 and 3 are not bona fide purchasers without notice for value. THE recitals in the document in favour of the second defendant show that it is brought into existence only on or about 11.10.1982when it was supposed to have been registered. THE sale is null and void and not enforceable in law. THE second defendant did not get any right under the document. THE plaintiff has, therefore, prayed for a decree for specific performance directing the defendants to execute a conveyance in favour of the plaintiff after receiving the balance of sale price.

(3.) DEFENDANTS 2 and 3 filed a written statement setting out the following case: The truth of the agreement in favour of the plaintiff is denied and at any rate defendants 2 and 3 had no knowledge of the same. Possession could not have been delivered to the plaintiff as alleged by him, as even during the year 1975, the husband of the first defendant handed over possession of the suit property to defendants 2 and 3 and they continue to be in possession of the same till now. They are not aware of the readiness and willingness of the plaintiff. On 11.10.1982 the first defendant executed a registered sale deed and registration has been completed. The husband of the first defendant was known to defendants 2 and 3 from 1974. During March, 1982 when he was at Madras, he expressed his desire to sell the suit property to defendants 2 and 3. They entered into an agreement to purchase the same on 15.3.1982 with the first defendant and her husband. During June, 1982, the husband of the first defendant was in Stanley Hospital as an in-patient and the sale deed could not be completed though stamp papers were purchased. As agreed, the first defendant and her husband obtained income-tax clearance certificate and handed over the same to the defendants. However, during June, 1982 the first defendant's husband expressed his desire to execute and register the conveyance after returning from Srivai-kuntam. He left by the end of June and, therefore, the execution and registration of the sale deed were postponed. He died on 7. 7. 1982 at Srivaikun-tam. Two weeks later, the first defendant came to Madras with her brother-in-law and promised to executeand register the sale deed. In as much as the first defendant was the owner of the property and her late husband was to join the sale deed by way of abundant caution, all the defendants decided that the first defendant should execute the sale deed which was already prepared on stamps, after deletion of any reference to her late husband. The first defendant left for Srivaikuntam and did not return to Madras for registering the conveyance as promised by her and on 11.9.1982 defendants 2 and 3 sent a telegram about their readiness to go through the sale. The telegram was followed by a notice by their advocates on the same day, which was received by the first defendant on 13.9.1982. In the second week of October, 1982, she came to Madras and expressed her willingness to execute and register the document. DEFENDANTS 2 and 3 are transferees for value and they paid their monies without any notice of any contract as alleged by the plaintiff. To the knowledge of defendants 2 and 3, the plaintiff never entered into possession of the property. Later on after the suit was filed, the plain tiff, who is generally aggressive, at the time of the visit of the Court Commissioner of which there was no due or proper notice to the defendants, the plaintiff inducted his workers, obviously by way of trespass, to make it appear as if he was in possession. It is not known whether the first defendant for any reason had colluded with the plaintiff to make it appear as if an agreement was entered into even before the sale could be completed. At any rate, the first defendant ought not to have agreed to such an agreement even if it was true especially when she had received a lawyer's notice on 13.9.1982. The sale in favour of defendants 2 and 3 is true and valid. The plaintiff has not come to court with clean hands and is not entitled to the discretionary and equitable relief of specific performance. However, non-performance can be adequately met with by pecuniary compensation in favour of the plaintiff by the first defendant and, therefore, the plaintiff cannot succeed in the suit. Hence, the suit should be dismissed.