ESWARI AMMA Vs. K K KORAH

JUDGEMENT

(1.) APPELLANTS are defendants 1 and 6 in O. S. No. 23 of 1963, on the file of the subordinate Judge's Court, Padmanabhapuram. The first respondent-plaintiff filed the suit for specific performance of the agreement of sale Ex. A-4, dated 15-21961 for Rupees 52,000 in respect of 126 acres 91 cents of land known as "love grow Providence Estate" owned by defendants 1 and 2. The first defendant is the wife and the second defendant is the daughter of D. W. 4 Raman Pillai, who acted on their behalf in bringing about the agreement of sale. Defendants 1 and 2 had purchased the suit property from the third defendant on 20-6-1956 for Rs. 20,000 under the original of Ex. B-2, but paid only Rs. 1500 at the time of sale and agreed to pay the balance of Rs. 18,500 in four instalments from august, 1958 to august, 1962. There is no dispute about the claim of the third defendant for the balance of sale consideration payable to him. Defendants 4 and 5 were cultivating the suit lands excluding the portions occupied by rubber plants and trees for raising tapioca under an unregistered lease deed dated 27-3-1957, which has not however been produced in this case. According to the plaintiff, defendants 4 and 5 were in occupation of the suit lands as lessees of defendants 1 and 2 for the purpose of tapioca cultivation. But, according to defendants 1 and 2 defendants 4 and 5 were only licencees who were permitted to cultivate tapioca plants year after year. Defendants 4 and 5 claimed to be lessees in possession of the suit lands and contended that they had spent Rs. 10,000 for improving the properties and claimed benefits of Travancore-Cochin Act VIII of 1950. But they subsequently surrendered possession of the suit lands in pursuance of the compromise entered into by them with defendants 1 and 2. The sixth defendant purchased an extent of 67 acres 64 cents out of the suit properties from defendants 1 and 2 on 2-121963, that is after suit, for Rs. 60,000.

(2.) THE learned Subordinate Judge accepted the plaintiff's case that he was always ready and willing to perform his part of the agreement of sale and that the default was solely due to the inability of defendants 1 and 2 to give possession of the suit lands on account of the subsisting lease in favour of defendants 4 and 5. The learned Subordinate Judge, however, accepted the case of the contesting defendants 1 and 2 that the other conditions of sale as regards the obtaining of the encumbrance certificate and satisfying the plaintiff about the boundaries etc. of the suit properties were complied with. He did not agree that defendants 4 and 5 were merely licencees and that the possession of the suit properties remained with defendants 1 and 2, or that there was any abandonment of the suit claim by the plaintiff either on account of inordinate delay or other circumstances or that defendants 1 and 2 effected improvements as considerable cost and that specific performance should not therefore be granted. In the result, the learned subordinate Judge decreed the suit as prayed for with costs against defendants 1 and 2 and allowed the third defendant to draw the amount due to him out of the amount to be deposited by the plaintiff within three months from the date of the judgment.

(3.) IT is averred in paragraph 3 of the plaint that, as per the terms of the agreement, defendants 1 and 2 should have within three months of the date of the agreement of sale satisfied the plaintiff by getting encumbrance certificate regarding the plaint schedule property for the period from 8-6-1956 and showing that to the plaintiff, that they should have satisfied the plaintiff regarding the boundaries and extent of the plaint schedule property and that they should also have delivered vacant possession of the plaint schedule property to the plaintiff. The first defendant has pleaded in her written statement that paragraph 3 of the plaint is not correct and that the relevant terms of the agreement have not been truly and correctly stated in the said paragraph. There is no doubt about the truth of the agreement of sale Ex. A-4 and the terms of the agreement mentioned therein. According to the terms of the agreement, defendants 1 and 2 should obtain an encumbrance certificate in respect of the suit properties from 8-6-1956 and satisfy the plaintiff about the extent and boundaries of the schedule properties and hand over the entire schedule properties to him within three months from the date of the agreement of sale. D. W. 4 Raman Pillai applied for encumbrance certificate a few days prior to the expiry of the three months' period and got the encumbrance certificate Ex. B-1 on 20-5-1961, that is five days after the expiry of the three months' period. The learned Subordinate Judge has observed that the fact that Ex. B-1 was not obtained before the expiry of the three months' period, but only five days later, cannot at all be viewed with disfavour against defendants 1 and 2. D. W. 4 Raman pillai claims to have shown Ex. B-1 to the plaintiff on 26-5-1961, but the plaintiff as P. W. 6 denies the same. D. W. 1, Purushothaman Nair corroborates the evidence of D. W. 4 Raman Pillai that the latter showed the encumbrance certificate to the plaintiff. The learned Subordinate Judge has rightly observed that the probabilities are that D. W. 4 Raman Pillai who had obtained the encumbrance certificate would have shown it to the plaintiff when he came to his house on 26-51961. Thus the fact that defendants 1 and 2 did not obtain an encumbrance certificate within the period of three months cannot be considered to be a default on the part of defendants 1 and 2 which can lead to any inference that they were not willing to perform the agreement of sale, or wanted to commit any breach of it. But it is clear from the terms of the agreement Ex. A-4 that it is not the mere obtaining of the encumbrance certificate by defendants 1 and 2 within three months which is important, but that defendants 1 and 2 should satisfy the plaintiff about the extent and boundaries of the suit properties after obtaining the encumbrance certificate. The learned Subordinate Judge has referred to the fact that the plaintiff has gone to the suit lands two or three weeks prior to Ex. A-4 and also in the middle of April, that he had no difficulty in ascertaining the boundaries and the extent of the suit properties, that apart from the sum of Rupees 5000 paid as advance he has made a further payment of Rs. 3000 under Ex. A-11 in pursuance of the letter of request Ex. A-10 sent by the first defendant and observed that these circumstances would go to show that there was absolutely no difficulty in ascertaining the extent and boundaries of the suit properties and that the probabilities are that the plaintiff was satisfied with regard to the same. It is not possible to accept this finding having regard to the terms of the agreement. Under the terms of the agreement, defendants 1 and 2 should obtain an encumbrance certificate and satisfy the plaintiff about the extent and boundaries of the suit properties agreed to be sold under Ex. A-4. The fact that the plaintiff went to the suit properties on two prior occasions and that he paid a further sum or Rs. 3000 apart from the advance of Rupees 5000 already paid by him cannot be taken as satisfying the terms of the agreement of sale as to what defendants 1 and 2 should do. In fact, D. W. 4 Raman Pillai admitted in cross-examination that after the agreement of sale, the suit properties were not measured and identified in the presence of the plaintiff. But, here again, we have to point out that the strict non-compliance with this term of the agreement by defendants 1 and 2 could not have been a real grievance for the plaintiff in this case and it is not possible to inter from this circumstance that defendants 1 and 2 were unwilling to perform their part of the agreement.