M. Duraiswamy, J.@mdashBoth the appeals arise against the judgment and decree passed in O.S. No. 33 of 2004 on the file of Principal District Court, Krishnagiri at Dharmapuri. The first defendant in the suit has filed the appeal in A.S. No. 46 of 2006. However, the defendants 2 and 3, who were originally respondents 2 and 3 in the appeal were transposed as appellants 2 and 3, therefore, A.S. No. 46 of 2006 has been filed by the defendants 1 to 3 and the respondents 1 and 2 were the plaintiffs.
2. In A.S. No. 91 of 2006, the defendants 2 and 3 are the appellants, respondents 1 and 2 were the plaintiffs and the 3rd respondent was the 1st defendant in the suit.
3. The plaintiffs filed the suit in O.S. No. 33 of 2004 for specific performance and for permanent injunction.
4. The brief case of the plaintiffs are as follows:-
(i) According to the plaintiffs, the suit properties belonged to the 1st defendant. The 1st defendant entered into an agreement of sale with the 2nd plaintiff on 27.4.2002 to sell the suit property for a sum of Rs. 6,90,000/-. On the date of execution of the agreement, the 2nd plaintiff paid an advance of Rs. 50,000/- to the 1st defendant. The 2nd plaintiff also paid a further advance of Rs. 1,50,000/- to the 1st defendant on 29.04.2002. The 1st defendant had also endorsed the said payment and also the delivery of possession of the suit property in the agreement. The possession was handed over to the 2nd plaintiff on 29.4.2002.
(ii) According to the plaintiffs, since the 2nd plaintiff, who is a hardware merchant, wanted business capital urgently, he agreed to assign his rights under the sale agreement dated 27.4.2002 to the 1st plaintiff by receiving the advance amount of Rs. 2,00,000/-. Therefore, on 3.6.2002, the 2nd plaintiff executed a deed of assignment in favour of the 1st plaintiff after receiving the said sum of Rs. 2,00,000/- from him. The 2nd plaintiff also delivered possession of the property to the 1st plaintiff on 3.6.2002 and the original sale agreement dated 27.4.2002 was delivered to the 1st plaintiff along with the assignment deed dated 3.6.2002. Time for performance of the contract was fixed as five months from the date of sale agreement dated 27.4.2002. The 1st plaintiff was and has been ready and willing to perform his part of the contract.
(iii) According to the plaintiffs, on 16.6.2002, the 1st plaintiff, through J.P. Periasamy and Narayanan of Krishnagiri sent a xerox copy of the assignment deed to the 1st defendant and requested her to receive the balance sale consideration of Rs. 4,90,000/- from him and execute the sale deed in his favour. But the 1st defendant refused to perform her part of the contract and sent a legal notice dated 21.6.2002 to the 2nd plaintiff with false allegations stating that the transactions covered under the sale agreement dated 27.4.2002 is only a loan transactions between the 1st defendant and the 2nd plaintiff. On 23.7.2002, the 2nd plaintiff issued reply to the 1st defendant and thereafter, on 12.8.2002 the 1st defendant sent a rejoinder to the second plaintiff''s counsel stating that the assignment deed is invalid and also asserted that she is in possession of the suit property.
(iv) According to the plaintiffs, the 1st plaintiff has been and is always ready and willing to perform his part of the contract. On 4.9.2002, the 1st plaintiff issued a legal notice to the 1st defendant by registered post, calling upon her to receive the balance of sale consideration and execute the sale deed. The said postal cover was returned with an endorsement stating that there was no such addressee. The said notice sent by courier was also refused by the 1st defendant.
(v) According to the plaintiffs, the 1st defendant appears to have created false documents purporting to be an unregistered sale agreement and a power of attorney deed, in the name of the 2nd defendant, who is an Advocate, The 2nd defendant, based on those documents, filed a suit in O.S. No. 235 of 2002 on the file of District Munsif Court, Krishnagiri against the 1st plaintiff, his brother Thangamuthu and their sister''s husband Nagarajan with a view to lay a false claim to the suit property. According to the 1st plaintiff, the 2nd defendant has created a false sale deed in the name of his wife, the 3rd defendant on 16.9.2002. In these circumstances, defendants 2 and 3 were made as parties in the suit.
(vi) According to the plaintiffs, under the guise of false document, the defendants are trying to trespass upon the suit property. The 3rd defendant was also trying to create complications by selling portions of the suit property to third parties. The 3rd defendant is not a bonafide purchaser for valuable consideration in good faith and without notice of prior agreement. The defendants 2 and 3 are aware of the said assignment and the possession of the suit property with the 1st plaintiff. In these circumstances, the plaintiffs filed the suit.
5. The brief case of the 1st defendant is as follows:
(i) According to the first defendant, the suit agreement was executed not for the purpose of selling the property. Since the first defendant required funds to celebrate the marriage of her daughter, she approached the 2nd plaintiff with a request to extend a loan of Rs. 2,00,000/-. The 2nd plaintiff agreed to give the said amount as loan and he required the first defendant to execute an agreement to sell the suit property in his favour as security for due repayment of the loan amount with 18% interest. Since the first defendant was hard pressed for money, she agreed to execute the agreement; Further, the defendant was also compelled to sign on the back of the agreement in blank. The 2nd plaintiff promised to return the agreement after the return of the loan amount. The defendant did not agree to sell the suit property for a sum of Rs. 6,90,000/-. The defendant did not deliver possession of the suit property to the second plaintiff on 29.4.2002 and there was no recital in the agreement to that effect.
(ii) According to the first defendant, she continued in possession of the suit property till she delivered the same to the second defendant under an agreement of sale dated 10.4.2002. The suit property continues in the possession and enjoyment of the 3rd defendant. The alleged assignment deed is not valid in law. The time of five months recited in the agreement refers to the time for return of the loan amount. The 1st defendant denied that on 16.6.2002 the 1st plaintiff sent assignment deed through J.P. Periasamy and Narayanan. The defendant has no enmity with the 1st plaintiff. The defendant sent a notice offering the second plaintiff to return the loan amount of Rs. 2,00,000/- with interest at 18% for which, the 2nd plaintiff sent reply belatedly. On 12.8.2002, the defendant sent a rejoinder. The averment that the first plaintiff was ready and willing to perform his part of the contract does not arise. The defendant did not create documents in old stamp papers. The documents are genuine.
(iii) According to the first defendant, the 2nd plaintiff was not ready and willing to perform his part of the contract, since the date of the agreement. If the second plaintiff had sufficient funds even at the time of execution of the assignment deed on 3.6.2002, he would have paid the balance sale consideration himself and got the sale deed registered in his name. As he was in urgent need for money, he wanted to get back the amount of Rs. 2,00,000/- paid to her, and at this juncture, the first plaintiff appears to have approached the second plaintiff and had taken assignment of the suit agreement from the second plaintiff. The evidence of P.Ws.1, 2 and 5 clearly shows that the second plaintiff was not in a position to pay the balance sale consideration to the first defendant. He had no financial capacity to raise the balance sale consideration. The first plaintiff is only an assignee of the suit agreement, who had come into the picture later. There was property dispute and enmity between the first defendant and the first plaintiff after the death of first defendant''s husband K.R. Chinnaraj. In these circumstances, the first defendant prayed for dismissal of the suit.
6. The brief case of the second and third defendants are as follows:
(i) According to the second and third defendants, the agreement entered between the 2nd plaintiff and the 1st defendant was only a loan transaction and nothing else. The possession was not handed over to the second plaintiff by the 1st defendant. The assignment could not be made for realisation of the loan amount of Rs. 2,00,000/- with interest. The defendants denied that the 2nd plaintiff delivered possession of the suit property and also the original sale agreement executed by the 1st defendant to the 1st plaintiff. The 2nd plaintiff was not ready and willing to perform his part of the contract. The 1st plaintiff did not send copy of the assignment deed to the 1st defendant on 16.6.2002.
(ii) The 3rd defendant denied that her vendor is not the wife of K.R. Chinnaraj. In the title deed and the sale deed she is described as the wife of K.R. Chinnaraj. The 1st plaintiff is not in possession of the suit property. It is only the 3rd defendant, who is in possession of the suit property, since her purchase on 16.9.2002. The 3rd defendant had purchased the suit property bonafidely for valuable consideration without notice of the alleged agreements, etc. The sale deed is valid and binding.
(iii) The defendants denied that the 2nd plaintiff was ready and willing to perform his part of the contract, since 27.4.2002, till he assigned the suit agreement in favour of the 1st plaintiff on 3.6.2002. The defendants also denied that the 2nd plaintiff is running the business in his own building and that he has got immovable properties including residential house worth more than Rs. 50,00,000/- apart from cash and movables. The evidence of plaintiffs 1 and 2, who were examined as P.Ws. 1 and 2 and also the evidence of P.W.5 clearly shows that the 2nd plaintiff was not in a position to pay the balance sale consideration to the 1st defendant. The 2nd plaintiff had no financial capacity to raise the balance sale consideration and he was not continuously ready and willing to perform his part of the contract. There was property dispute and enmity between the 1st defendant and the 1st plaintiff and in order to grab the suit property, the 1st plaintiff had obtained the assignment of the suit agreement from the 2nd plaintiff, knowing fully well about the earlier agreement dated 27.6.2001 to sell the suit property executed between the 1st defendant and the 2nd defendant. The financial capacity of the 1st plaintiff and his readiness and willingness to complete the sale is immaterial as he is only an assignee who came into the picture later. In any event, the first plaintiff was not ready and willing to perform his part of the contract. The 1st plaintiff is not entitled to get specific performance of the agreement.
(iv) The 1st and 2nd defendants had entered into an agreement of sale in respect of the suit property on 27.6.2001, as per which, the 1st defendant had agreed to sell the suit property to the 2nd defendant for a sale consideration of Rs. 17,25,000/- and had received an advance of Rs. 5,000/- on that day. It was agreed that the 2nd defendant should pay the balance sale consideration within eleven months and complete the sale. On 14.9.2001, the 2nd defendant had paid a further sum of Rs. 1,00,000/- to the 1st defendant. Again on 10.4.2002, the 2nd defendant paid a further sum of Rs. 1,00,000/- as further advance. The 1st defendant handed over possession of the suit property to the 2nd defendant on 27.6.2002. In the 1st week of September 2002, the 2nd defendant and his wife, the 3rd defendant paid the balance sale consideration to the 1st defendant. After receiving the same, the 1st defendant and her daughter had executed a registered power of attorney deed on 6.9.2002 in favour of the 2nd defendant authorising him to manage the suit property, to divide the same into house sites and prepare a lay out and to sell or alienate the same and also to execute necessary documents in respect of the same. Since the defendants 2 and 3 had already paid the entire sale consideration, to the 1st defendant, the 2nd defendant as power agent of the 1st defendant, on her behalf, had executed a registered sale deed in favour of the 3rd defendant on 10.9.2002 and handed over possession of the suit property to her. Since then, the 3rd defendant has been in possession and enjoyment of the suit property.
(v) Neither the 2nd defendant nor the 3rd defendant were aware of or had notice of the alleged suit agreement dated 27.4.2002 said to have been executed between the 2nd plaintiff and the 1st defendant, when the said sale deed dated 16.9.002 was executed. Hence, the 3rd defendant is a bonafide purchaser for value without notice of the suit agreement. In these circumstances, the second and third defendants prayed for dismissal of the suit.
7. Before the trial court, on the side the plaintiff, 5 witnesses were examined and 17 documents Exs. A-1 to A-17 were marked and on the side of the defendants, 4 witnesses were examined and 9 documents Exs. B-1 and B-9 were marked.
8. The trial court after taking into consideration, the oral and documentary evidences available on record, decreed the suit.
9. Aggrieved over the judgment and decree of the trial court, the defendants have filed the above appeals.
10. Heard Mr. D. Manimaran, learned counsel appearing for the 1st appellant, Mr. R. Gandhi, learned senior counsel appearing for the appellants 2 and 3, Mr. AR. L. Sundaresan, learned senior counsel appearing for the respondents 1 and 2 and Mr. D. Manimaran learned counsel appearing for the third respondent.
11. The contentions of the learned senior counsel appearing on behalf of the appellants are as follows:-
(i) that the trial court ought to have dismissed the suit for specific performance on the ground that Ex. A3 the alleged assignment deed dated 3.6.2002 executed by the 2nd plaintiff in favour of the 1st plaintiff, wherein the possession was alleged to have been handed over to the 1st plaintiff, when u/s 17(1-A) of the Registration Act, the document must have been registered and in the absence of registration, the trial court ought not have decreed the suit for specific performance;
(ii) that the trial court ought to have dismissed the suit for specific performance, since there was no pleading that the second plaintiff was ready and willing to perform his part of the contract;
(iii) that in the absence of any recital in Ex. A1 agreement dated 27.4.2002 giving power to the 2nd plaintiff to assign the agreement in favour of the parties, there is no privity of contract between the first plaintiff and the first defendant, therefore the suit filed by the plaintiffs is liable to be rejected;
(iv) that when the 1st defendant, through his power agent, the 2nd defendant, had sold the property to the 3rd defendant under Ex. B5 sale deed dated 16.9.2002, the plaintiffs should have sought for the prayer to set aside the sale deed. Since the plaintiffs have not prayed to set aside the sale deed, the suit for specific performance is liable to be rejected.
12. The learned senior counsel appearing for the appellants, in support of his contention relied upon the following judgments:
(i)
Section 20 of the Specific Relief Act, preserves judicial discretion to courts as to decreeing specific performance. The court should meticulously consider all facts and circumstances of the case. The court is not bound to grant specific performance merely because it is lawful to do so. The motive behind the litigation should also enter into the judicial verdict. The court should take care to see that it is not used as an instrument of oppression to have an unfair advantage to the plaintiff.
(ii)
(iii)
13. Countering the submissions made by the learned senior counsel for the appellants, learned senior counsel appearing on behalf of the respondents 1 and 2 submitted as follows:-
(i) that Ex. A1 agreement and Ex. A3 assignment deed can be received in evidence in spite of being unregistered for the reason that explanation to Section 49 of the Registration Act which deals with effects of non-registration, any unregistered document relating to an immovable may be received in evidence of a contract in a suit for specific performance or as evidence of collateral transaction. From the provisions of explanation to section 49 and section 17(2)(v), which clearly states that a right, title interest is created by execution of another document, the registration is not mandatory;
(ii) with regard to the readiness and willingness, the 2nd plaintiff, who was the original agreement holder, had initially advanced a sum of Rs. 50,000/- and subsequently advanced a further sum of Rs. 1,50,000/- and took possession of the suit property as detailed in Exs. A1 and A2 and thereby proved his readiness and willingness in performing his part of the contract. In Ex. A9, the 1st plaintiff had specifically stated that he was ready and willing to perform his part of the contract. Ex. A9 was filed as plaint document and hence, it forms part and parcel of the plaint. The 1st defendant admitted the assets of the 2nd plaintiff and had knowledge regarding his financial capacity to perform the terms of the contract. In the facts and circumstances of the case and the conduct of the parties clearly prove that the plaintiffs were ready and willing to perform their part of the contract;
(iii) As per section 15(b) of Specific Relief Act, where the contract provides that his interest shall not be assigned, his "representative in interest" or his principal shall not be entitled to specific performance of the contract unless such party has already performed his part of the contract, or the performance thereof by his "representative in interest", or his principal, has been accepted by other party. Therefore, when there is no bar under the agreement, the document can be assigned. u/s 15(b) of the Specific Relief act and section 37 of the Indian Contract Act, all contract are assignable unless the personal capacity of the panics are involved;
(iv) when the plaintiffs are in possession of the suit property, the 2nd and 3rd defendants ought to have been diligent and made enquiries and they were put on constructive notice as deemed u/s 3 of the Transfer of Property Act. The sister of the 2nd defendant and sister-in-law of the 3rd defendant one Padmini, an Advocate by profession, was a tenant of the 1st defendant and she had issued Ex. A8 notice on behalf of the 1st defendant. Hence, the contract between the plaintiffs and the 1st defendant would have been known to the 2nd and 3rd defendants. Therefore, in spite of having knowledge about the transaction between the plaintiffs and the 1st defendant, the 2nd and 3rd defendants wantonly and willfully absented form making enquiry with the ulterior motive of defeating the claims of the plaintiffs. u/s 19 of the Specific Relief Act, a suit for specific performance can be filed against parties and person claiming subsequent title from the seller. It gives an exemption only in the case of a bonafide purchaser for consideration without notice of prior contract. In the present case, the 3rd defendant is not a bonafide purchaser for consideration, who had prior knowledge of the earlier agreement hence, the suit for specific performance filed against the defendants can be enforced under the provisions of the Specific Relief Act.
14. The learned senior counsel appearing for the respondents 1 and 2, in support of his contention relied upon the following judgments:-
(i)
(ii)
(iii)
(iv)
(v)
(vi)
(vii) 2007 (1) CTC 505 (Mohideen Sahib v. A. Amea Bi and others) wherein, this court held that section 3 places constructive notice on purchaser about property proposed to be purchased by him and when owner of property enters into agreement with plaintiff for sale of property and receives sale consideration under such agreement and person who attests such agreement.
(viii)
(xi)
15. On a careful consideration of the materials available on record and on the submissions made by the respective learned counsels, the following points arise for consideration in these appeals:-
i) Whether Ex. A1 agreement dated 27.4.2002 is true, genuine and binding on the parties?
ii) Whether Ex. A3 assignment deed dated 3.6.2002 executed by the 2nd plaintiff in favour of the 1st plaintiff is binding on the defendants?
iii) Whether the plaintiffs 1 and 2 were ready and willing to perform their part of the contract?
iv) Whether the plaintiffs are entitled for a decree for specific performance?
v) Whether the plaintiffs are entitled for permanent injunction as decreed by the trial court?
vi) Whether the registration of Ex. A1 sale agreement and Ex. A3 assignment deed is mandatory under the provisions of section 17(1-A) of the Registration Act?
16. As already stated, Ex. A1 agreement was entered into between the 1st defendant and the 2nd plaintiff on 27.4.2002. According to the plaintiffs, the sale consideration was fixed at Rs. 6,90,000/- and a sum of Rs. 50,000/- was paid as an advance on the date of Ex. A1 agreement. According to the plaintiffs, thereafter, under Ex. A2 endorsement dated 29.4.2002 (made in Ex. A1 agreement a further sum of Rs. 1,50,000/- was paid as further advance and possession of the suit property was handed over to the 2nd plaintiff by the 1st defendant. Ex. A1 agreement is an unregistered sale agreement. Thereafter, the 2nd plaintiff executed Ex. A3 assignment deed in favour of the 1st plaintiff on 3.6.2002. According to the plaintiffs, since the 2nd plaintiff required money for his business investment under Ex. A3 assignment deed, the 1st plaintiff paid a sum of Rs. 2,00,000/- to the 2nd plaintiff. According to the plaintiffs, under Ex. A3 assignment deed, the possession was handed over to the 1st plaintiff by the 2nd plaintiff. In Ex. A3 assignment deed, the 2nd plaintiff had assigned all his rights which he had under Ex. A1 sale agreement in favour of the 1st plaintiff.
17. It is not in dispute that Ex. A3 assignment deed is also an unregistered document. Though the 1st defendant contended that the suit agreement was not executed for the purpose of selling the suit property and that it was executed for availing the loan of Rs. 2,00,000/- the said contention was not argued on behalf of the 1st defendant. Therefore, the said issue is decided in favour of the plaintiffs.
18. Since it is found that Ex. A1 agreement is true and genuine document, the next point that arise for consideration is whether the plaintiffs can rely upon the said unregistered agreement for the reason that the possession of the property was handed over to the 2nd plaintiff by the 1st defendant under Ex. A2 endorsement dated 29.04.2002 made in Ex. A1 agreement.
19. The plaintiffs have filed the present suit for specific performance, permanent injunction not to alienate the property and for permanent injunction restraining the defendants from interfering with the 1st plaintiffs peaceful possession and enjoyment of the suit property.
20. The learned senior counsel appearing for the appellants contended that u/s 17(1-A) of the Registration Act, if possession is dealt with in a sale agreement, the provision of Registration Act makes it mandatory to register the said agreement.
21. The learned senior counsel appearing for the respondents 1 and 2 contended that explanation to Section 49 of the Registration Act which deals with the effects of non-registration, any unregistered document relating to an immovable may be received in evidence of a contract in a suit for specific performance or as evidence for collateral transaction not required to be effected by registered instrument. The learned senior counsel also submitted that under sub section (v) of section 17(2) of the Registration Act, any document other than the document specified, in section 17(1-A) not itself creating, declaring, assigning, limiting or extinguishing any right, title or interest of the value of one hundred rupees and upwards to or in immovable property but, merely creating a right to obtain another document which will, when executed create, declare, assign, limit or extinguish any such right, title or interest. Therefore, the learned senior counsel contended that even an unregistered document can be produced as an evidence in a suit for specific performance.
22. As per section 17(1-A) of the Registration Act, an agreement for sale relating to any immovable property, for reaping the benefits of section 53-A of Transfer of Property Act. 1882, shall be registered. An intending purchaser, who enters into an agreement for sale with the owner of the property and got delivery of possession of the property, cannot claim the benefits u/s 53-A of the Transfer of Property Act unless the deed of agreement for sale which contemplates such delivery of possession is registered. But the said provision shall not affect the right of a transferee for consideration who has no notice of the contract or of the part performance thereof. It is not as if all the agreements for sale referring to instance of delivery of possession shall be compulsorily registered u/s 17(1-A) of the Registration Act. Only when the agreement for sale which speaks about delivery of possession is filed to claim benefit of part performance as contemplated u/s 53-A of the Transfer of Property Act, court will have to find out whether the document was registered or not. If such document was not registered then the benefit of section 53-A of Transfer of Property Act cannot be claimed by the prospective purchaser of the property.
23. In the case on hand, the 1st plaintiff claimed benefit u/s 53-A of the Transfer of Property Act. The plaintiffs have sought for the Relief of permanent injunction restraining the defendants from interfering with the 1st plaintiffs peaceful possession and enjoyment of the properties which he got under Exs. A1 and A3 documents. When the 1st plaintiff sought for protection claiming benefits u/s 53-A of the Transfer of Property Act, u/s 17(1-A) of the Indian Registration Act, Exs. A1 and A3 documents must have been registered. Since both the documents viz., Exs. A1 and A3 were not registered, the plaintiffs cannot rely upon these documents. If the plaintiffs had not claimed benefits u/s 53-A of the Transfer of Property Act seeking for protection with regard to possession which they got under Exs. A1 and A3 documents, in that case, the registration is not mandatory. But in the case on hand, since the 1st plaintiff had sought for a prayer for permanent injunction restraining the defendants from interfering with his possession and enjoyment of the suit property based on Exs. A1 and A3 documents. Therefore, the documents must have been registered u/s 17(1-A) of the Registration Act. Since Ex. A1 was not registered, the plaintiffs cannot rely upon the said document. Similarly, in the case of Ex. A3 assignment deed, it was alleged that possession was handed over to the 1st plaintiff by the 2nd plaintiff under the said document. As already stated, since the 1st plaintiff had sought for the relief of permanent injunction, in respect of his possession based on Ex. A3 assignment deed, the document must have been registered u/s 17(1-A) of the Registration Act. Since the document was not registered, the 1st plaintiff cannot rely upon the said document and file the suit for specific performance based on the said document. Therefore, even if Exs. A1 and A3 are true and genuine documents, the said documents cannot be relied upon by the plaintiffs for the reason tat they were not registered u/s 17(1-A) of the Indian Registration Act. Therefore, the provision of section 49 of the Registration Act are not applicable to the present case.
24. The 2nd plaintiff executed Ex. A3 assignment deed dated 6.3.2002 in favour of the 1st plaintiff. Admittedly, the 1st defendant, who was the owner of the property, was not made as a party in Ex. A3 assignment deed. To enforce the contract, there must be a privity of contact between the parties. No one, other than the parties to the contract is entitled to enforce the same. The third party, for whose benefit a contract has been made, may sue on the contracting party making the contract, for specific performance, to the benefit of the third party. According to the 2nd plaintiff, the 1st plaintiff is a nominee. Ex. A3 assignment deed is only between 1st and 2nd plaintiffs. In the plaint, the plaintiffs had averred that on 16.6.2002 the 1st plaintiff through one J.P. Periasamy and Narayanan of Krishnagiri sent a xerox copy of the assignment deed to the 1st defendant and requested her to receive the balance sale consideration of Rs. 4,90,000/- from the 1st plaintiff and execute the sale deed in his favour. The said Narayanan was examined as P.W.4. In his cross examination, P.W.4 had stated that 15 days after the execution of Ex. A3 assignment deed, he along with the 1st plaintiff and one Periasamy went to the 1st defendant and requested her to execute the sale deed in favour of the 1st plaintiff on receiving the balance sale consideration. Further, P.W.4 had specifically stated that the 1st plaintiff accompanied him when he went to him with the 1st defendant. When the 1st plaintiff himself had stated that he sent a xerox copy of Ex. A3 assignment deed to the 1st defendant through one Periasamy and P.W.4, in his evidence had stated that the 1st plaintiff had also accompanied him. The evidence of P.W.4 is contrary to the pleadings of the plaintiffs. The 1st defendant was examined as D.W.1, She had stated that the said Periasamy and Narayanan did not meet her and informed her about the assignment deed and also did not request her to execute the sale deed in favour of the 1st defendant. Therefore, the evidence of P.W.4 creates a doubt with regard to the contention raised by the 1st plaintiff that the 1st defendant was informed about Ex. A3 assignment deed dated 16.6.2002.
25. Section 15 of the Specific Relief Act, 1963, deals with persons who can obtain specific performance of a contract which reads as follows:-
15, Who may obtain specific performance - Except as otherwise provided by this chapter, the specific performance of a contract may ''be obtained by-
(a) any party thereto;
(b) the representative in interest or the principal, of any party thereto;
Provided that where the learning, skill, solvency or any personal quiet of such party is a material ingredient in the contract, or where the contract provided that his interest shall not be assigned, his representative in interest or his principal shall not be entitled to specific performance of the contract, unless such party has already performed his part of the contract, or the performance thereof by his representative in interest, or his principal, has been accepted by the other party;
(c) where the contract is a settlement on marriage, or a compromise of doubtful rights between members of the same family, any person beneficially entitled thereunder;
(d) where the contract has been entered into by a tenant for life in due exercise of a power, the remainderman
(e) a reversioner in possession, where the agreement is a covenant entered into with his predecessor in title and the reversioner is entitled to the benefit of such covenant;
(f) a reversioner in remainder, where the agreement is such a covenant, and the reversioner is entitled to the benefit thereof and will sustain material injury by reason of its breach;
(g) when a company has entered into a contract and subsequently becomes amalgamated with another company, the new company which arises out of the amalgamation;
(h) when the promoters of a company have, before its incorporation, entered into a contract for the purposes of the company, and such contract is warranted by the terms of the incorporation, the company;
Provided that the company has accepted the contract and has communicated such acceptance to the other party to the contract.
26. The words ''representative in interest'' are not used in the context of property rights, but only in the context of the specific performance of a contract, and, therefore, do not exclude a person who become entitled to the benefit of the contract. A contract is ordinarily assignable, unless the personal quality of a party is a material ingredient in the contract or where the contract shows an intention that the interest shall not be assigned. Where the benefit of a contract has been assigned, the assignee may, as a general rule, enforce specific performance, provided that the assignee can himself perform or procure the performance of the assignor''s obligations under the contract. The word "representative in interest" includes an assignee of an interest, who can also seek specific performance, unless the contract itself prohibits assignment, either expressly of by implication, when there is a prohibition to assign a contract, representative in interest of a deceased party to the contract cannot enforce the contract, unless there was performance by the deceased of his part of the contract or performance by the legal representative which has also been accepted by the other party.
27. In the present case, the 2nd plaintiff executed Ex. A3 assignment deed in favour of the 1st plaintiff assigning Ex. A1 agreement of sale in his favour. Therefore, Ex. A3 assignment deed dated 3.6.2002 executed by the 2nd plaintiff in favour of the 1st plaintiff is otherwise binding on the 1st defendant but for the reason since the document was not registered under the provisions of section 17(1)(A) of the Registration Act, the said document cannot be relied upon by the plaintiffs.
28. The next point that arise for consideration is whether the plaintiffs were ready and willing to perform their part of the contract.
29. According to Section 16 of the Specific Relief Act, 1963, specific performance of a contract cannot be enforced in favour of a person who failed to prove that he was always ready and willing to perform the contract. Section 16(c) of the said Act reads as follows:-
(c) 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 defendant.
For the purposes of clause (c):- where a contract involves the payment of money, it is not essential for the plaintiff to actually tender to the defendant or to deposit in court any money except when so directed by the court and the plaintiff must aver performance of, or readiness and willingness to perform, the contract according to its true construction.
30. The definition between the readiness and willingness is that the former has reference to financial capacity and latter on the conduct of the plaintiffs wanting specific performance. While willingness is merely mental process, readiness is something do with translating that will into action and is preceded by necessary preparation of being in a position to be ready. In other words, while willingness, may be something to do mainly with a person''s mental process to do an act, his readiness implies close proximity of such willingness, and its ultimate physical manifestation. Readiness must, in all cases, be backed by willingness and its imminent physical action is demonstrated when it is about to be put into action. There must be cases where though a person may be willing, yet may not be able to do what he wills. He cannot be said to be ready to do it. In other cases, the person may posses all that is necessary to do an act. He may be ready but if the will to do is not there, his willingness may be lacking. If the evidence shows that the plaintiff was never ready with the resources for fulfilling his contract, specific performance will be refused so also where the plaintiff admitted that he was indebted to various persons and often he failed to pay installments and his evidence showed that he never had funds to pay the price.
31. It is settled principle of law that the plaintiff in a suit for specific performance must set out the agreement, which the defendant has refused to perform. He must plead that he has been, and is, still ready and willing to specifically perform his part of the agreement. In the absence of such allegation the suit is not maintainable and before a decree for specific performance can be given, he must prove his readiness and willingness to perform his part. This is so even where the defendant has not appeared or has not filed any written statement or has not led any evidence. If the plaintiff fails to aver in the plaint that he was, and he is, ready and willing to perform his part of the contract, he has failed to disclose his cause of action for the relief of specific performance, and his prayer is liable to be rejected.
32. In the case on hand, the plaintiffs in paragraph No. VI of the plaint had stated as follows:-
The 1st plaintiff has been and is always ready and willing to perform his part of the contract as contemplated in the said deeds dated 27.4.2002 and 3.6.2002.
Ex. A1 was executed on 27.4.2002 and Ex. A3 assignment deed was executed on 3.6.2002. In the plaint, plaintiffs have stated that 1st plaintiff was ready and willing to perform his part of the contract from the date of Exs. A1 and A3 documents. Absolutely there is no averment in the plaint that the 2nd plaintiff was ready and willing to perform his part of the contract. As per the provisions of Section 16(c) of the Specific Relief Act, the plaintiffs must plead and prove their readiness and willingness to perform their part of the contract. Since there is no averment in the plaint to the effect that the 2nd plaintiff was ready and willing to perform his part of the contract, the contention raised by the learned senior counsel appearing for the respondents 1 and 2 that in Ex. A9 notice issued by the 2nd plaintiff to the 1st defendant he had stated that he was ready and willing to perform his part of the contract is not sufficient for decreeing the suit for specific performance. No where in the plaint the 2nd plaintiff had stated that he was ready and willing to perform his part of the contract. That apart, even in the plaint, the plaintiffs have stated that since the 2nd plaintiff, wanted business capital urgently, he executed Ex. A3 assignment deed dated 27.4.2002 in favour of the 1st plaintiff. That apart, P.W.4, who is an attestor to Ex. A3 assignment deed, in his cross examination had stated that the 2nd plaintiff was struggling to mobilize funds to complete the sale under Ex. A1 agreement, therefore, he executed Ex. A3 assignment deed in favour of the 1st plaintiff Therefore, from the evidence of P.W.4 and the averments stated in the plaint, it is very clear that the 2nd plaintiff was hard pressed for money and he was not in a position to pay the balance sale consideration to the 1st defendant after the date of Ex. A1 sale agreement. When the pleadings and the evidence of P.W.4 are against the provisions of section 16(c) of the Specific Relief Act, the 1st plaintiff had stated that he was ready ad willing to perform his part of the contract.
33. The plaintiffs also filed I.A. No. 124 of 2004 under Order 6 Rule 17 read with section 151 of the CPC to amend the plaint by pleading readiness and willingness of the 2nd plaintiff to perform his part of the contract. The said application was resisted by the defendants. However, the trial court allowed the application for amendment. Aggrieved over the order passed in I.A. No. 124 of 2004, the 1st defendant preferred Civil Revision Petition in C.R.P. (PD) No. 1567 of 2004 and this court by order dated 7.9.2004, set aside the fair and final order passed in I.A. No. 124 of 2004 and allowed the Civil Revision Petition. This court while allowing the Civil Revision Petition took into consideration of the fact that the plea regarding the readiness and willingness to perform the contract was lacking in the plaint and the amendment was sought to be introduced only after the trial that too at the stage of the arguments. This court also considered the evidence of P.W.1., who admitted that he did not have necessary funds at the relevant point of time at the time of deciding the Civil Revision Petition.
34. Aggrieved over the order passed by this court in C.R.P. No. 1567 of 2004, the plaintiffs preferred appeal before the Hon''ble Supreme Court in SLP (Civil) No. 20317 of 2004 and the said SLP was dismissed as withdrawn. Therefore, from the above, it is clear that the plaintiffs were not ready and willing to perform their part of the contract from the date of Ex. A1 sale agreement. Therefore, the finding of the trial court that the plaintiffs were ready and willing to perform their part of the contract is liable to be set aside. Accordingly, the same is set aside.
35. There is no dispute with regard to the principles laid down in the judgments relied upon by the learned senior counsels appearing for the appellants and the respondents. However, the facts and circumstances of the judgments relied upon by the learned senior counsel for the respondents differs from the case on hand, therefore, the judgments are not applicable to the present case.
36. The 1st defendant executed Ex. B1 sale agreement dated 27.6.2001 in favour of the 2nd defendant and her daughters executed Ex. B4 power of attorney dated 6.9.2002 in favour of the 2nd defendant. By virtue of Ex. B4 power of attorney, the 2nd defendant executed Ex. B5 sale deed dated 16.9.2002 in favour of the 3rd defendant. By virtue of Ex. B5 sale deed, the 3rd defendant was put in possession of the suit property by the 1st defendant through his power agent, the 2nd defendant. Even with regard to the possession, P.W.4 had stated that he does not know whether the 1st plaintiff was in possession of the property. When the evidence of P.W.4 was not specific as to the possession of the 1st plaintiff, the trial court ought not have granted a decree for permanent injunction.
That apart, as already held in this judgment that u/s 17(1-A) of the Registration Act, Exs. A1 and A3 documents cannot be relied upon by the plaintiffs, since they are unregistered documents and it has been stated in those documents that possession was handed over to the plaintiffs. Therefore, plaintiffs cannot seek for protection claiming benefits u/s 53-A of the Transfer of Property Act. Since Exs. A1 and A3 documents were unregistered, the trial court ought not have granted a decree for permanent injunction. The decree is liable to be set aside.
37. For the reasons stated above, the trial court ought not have granted a decree for specific performance and permanent injunction. Since the plaintiffs are not entitled for a decree for specific performance, the decree for permanent injunction restraining the defendants from alienating the property is also liable to be set aside. In these circumstances, the judgment and decree of the trial court are set aside. The suit in O.S. No. 33 of 2004 on the file of Principal District Court, Krishnagiri at Dharmapuri stands dismissed. Both the appeals are allowed. Consequently, connected miscellaneous petition is closed. However, there shall be no order as to costs.
