Nainar Sundaram, J.@mdashThis appeal is directed against the judgment and decree of the subordinate judge of Tiruchirappalli, in O.S. No. 282 of 1975 dated 20th March, 1978. The appellants are the defendants. The respondent is the plaintiff. The plaintiff laid the suit for specific performance of a registered contract of sale dated 12th January, 1972, marked in the case as Ex. A-1. We may have occasion to refer in detail the pleadings put forth by the parties when we deal with the contentions raised before us on behalf of the defendants and the answers given thereto on behalf of the plaintiff. The necessary facts may be narrated as follows: Defendants 1 to 5 constituted a joint Hindu family, of which the first defendant is the father and the manager. Ex. A1 the contract of sale, was entered into with the plaintiff by the first defendant for himself and on behalf of defendants 4 and 5, who were then minors, and defendants 2 and 3. The sale price was Rs. 1 lakh. Rs. 5,000 was agreed to be paid as advance at the time of the registration of the contract of sale and, in fact, there is no dispute that this advance of Rs. 5,000 was paid. The sale was to be completed within three months from 12th January, 1972. A release deed should be obtained from the sons and the widow of Kandaswami Pillai, the divided brother of the first defendant, and the amount required for the said purpose shall be paid out of the sale consideration. After release deed is registered, a sum of Rs. 10,000 shall be paid by the plaintiff to the first defendant under receipt for family expenses. On 31st January, 1972 the first defendant passed on a letter to the plaintiff, agreeing that out of the sale consideration, expenses if any, incurred by the plaintiff with regard to obtaining copies from court and the office of the Registrar shall be deducted. This is evident from Ex.A13. The deed of release, as contemplated above, got executed on 30th June, 1972 and in fact, the stamp papers therefore were purchased in the name of the plaintiff on 17th May, 1972. A registration copy of the release deed has been produced in this appeal and we admitted the same by order in C.M.P. No. 2585 of 1985, and the lame has been given the mark, Ex. B3. On 8th July, 1972, defendants 1 to 3, the first defendant for himself and on behalf of defendants 4 and 5 passed on a letter to the plaintiff, stating that even though the plaintiff was ready, since the defendants could not complete the transaction and delay occurred, they will positively complete the transaction within a further period of three months. The release deed was presented for registration on 4th October, 1972 and it was registered on 10th October, 1972. On 18th January, 1973, as per Ex.A3, the defendants issued a notice through counsel, wherein they referred to the terms of the contract of sale, the factum of having obtained the release deed referred to, the document number and the office of registration, and further stated that the release deed was shown to the plaintiff and there was a demand for payment of Rs. 40,000 towards the release deed and also the sum of Rs. 10,000 as agreed to be paid after the registration of release deed. The defendants complained that in spite of these features, the plaintiff was giving evasive replies and did not pay the amounts. The defendants also notified the plaintiff that if he does not complete the transaction within seven days from the date of receipt of the notice, the agreement will be deemed to have been cancelled and not binding on the defendants and that they will be at liberty to have the sale effected in favour of others. On 22nd January, 1973, as per the original of Ex.A4, the plaintiff replied through his counsel, repudiating the allegations in Ex.A3 by stating that the registered release deed was not shown to him and complaining that there was failure to give the details of the property to be offered as security under the contract of sale, Ex.A1 and calling upon the defendants to explain as to how the municipal tax registry stands in the name of one Prasanna and further calling upon the defendants to get the income tax clearance certificate, and ultimately the plaintiff stated that he was ready and willing to perform his part of the contract. On 31st January, 1973, as per Ex.A5, there was a rejoinder to the original of Ex.A4 by the defendants through their counsel, wherein it was asserted that the release deed was shown to the plaintiff and even otherwise, the details of the document having been given in Ex.A3 the plaintiff could as well satisfy about the release deed It was notified that the plaintiff had no right to keep quiet without paying Rs. 40,000 and Rs. 10,000 as agreed to and ultimately calling upon the plaintiff to pay the sum of Rs. 40,000 towards the release deed and Rs. 10,000 aggregating to Rs. 50,000 within three days from the date of receipt of the rejoinder, failing which, it was notified that no further reply will be entertained and the defendants would treat the contract of sale as cancelled. The plaintiff did not react to Ex. A5 in any concrete manner until he filed the suit in April, 1975. The defendants resisted specific performance of the contract of sale asked for by the plaintiff and in view of the contentions raised on behalf of the defendants-appellants herein, there is no need to refer to the entire gamut of the defence and it is sufficient to state that amongst other defences, they would contend that the plaintiff did not pay the sum of Rs. 10,000 as contemplated under the agreement even after the registration of the release deed and hence, he committed breach of the contract and is not entitled to specific performance thereof and further, the suit is barred under the provisions of the Tamil Nadu Urban Land (Ceiling and Regulation) Act. 1976. On behalf of defendants 4 and 5 who had attained majority subsequently, it was contended that the contract of sale entered into by the first defendant on their behalf was not for any joint family necessity or for joint family benefit and hence, the contract cannot be imposed on them and specific performance cannot be directed against their shares in the suit property.
2. The Court below, reflecting the controversy raised by the parties on their pleadings'' formulated the following issues:
1. Is the agreement of sale, dated 12th January, 972 true, valid and binding on the defendants 4 and 5 and enforceable ?
2. Is the plaintiff entitled to specific performance as claimed against all the defendants?
3. Was time made the essence of the contract and if so, is the suit in time?.
4. Is the agreement vitiated by material alteration?
5. Is it inequitable to enforce specific performance against the defendants 1 to 3 and will it give an unfair advantage to the plaintiff?
6. To what relief, is the plaintiff entitled?
Additional Issue:
Whether the suit is barred under the provisions of Tamil Nadu Urban Land (Ceiling and Regulations) Act, 1976?
The parties placed their evidence, oral and documentary and that was the subject-matter of assessment by the Court below and, after doing so, the court below on issue No 1, rendered a finding that the contract of sale was true, valid and binding on defendants 4 and 5 and was also enforceable. On issue Nos. 2 and 5, the Court below held that the plaintiff is entitled to specific performance against all the defendants and he could enforce specific performance against defendants 4 and 5 also issue No. 3 was answered in favour of the plaintiff. On issue No. 4, the court below found that there was absolutely no material alteration in Ex.A1. The answer given by the court below on the additional issue was against the defendants. As a result, the court below granted a decree in favour of the plaintiff but without costs. The plaintiff was directed to deposit the balance of Rs. 95,100 into court on or before 10th April, 1978.
3. Mr. G. Ramaswami, learned counsel appearing for the defendants, appellants herein, chose to put the case of his clients in their endeavour to avoid specific performance of the contract of sale, Ex.A1, under two substantial heads without troubling us on any other aspect. One is that specific performance of the contract cannot be enforced in favour of the plaintiff, because his case comes within the mischief of S.16(b) and (c) of the Specific Relief Act, 47 of 1963, hereinafter referred to as the Act. Expatiating this submission, learned counsel would state that the plaintiff, even after the release deed as contemplated in the contract of sale Ex.A-1, got registered, did not pay the sum of Rs. 10,000 as enjoined in the contract and in spite of demands, more than once, and hence, the plaintiff must be deemed to have violated an essential term of the contract and further, the plaintiff failed to aver and prove that he has performed or has always been ready and willing to perform the said essential term of the contract. The second contention is that on the date of the contract of sale, Ex.A1, defendants 4 and 5 were minors and the first defendant, as the father and manager of the joint Hindu family, had no necessity to enter into a contract for the sale of the property and the sale was and could not be for the benefit of the family and hence, the contract as such could not be enforced as against the shares of defendants 4 and 5 and even assuming that the contract of sale could be enforced as against the shares of defendants 1 to 3, that would lead to further legal problems and controversies and, in that context, this Court in its discretion, shall not accord the relief of specific performance in favour of the plaintiff. We shall deal with the answers given by Mr. M. Raghavan, learned counsel appearing for the plaintiff, respondent herein, while discussing this contention raised on behalf of the defendants. Before we do that, we think it necessary to extract that part, though not the entirety, of Ex. A1 which is relevant for considering the contention raised before us. The relevant part of Ex.A1 runs as follows: --
4. We are primarily called upon to examine as to whether the plaintiff''s case for specific performance of the contract will be barred by Section 16(b) and (c) of the Act. The said provisions read as follows:
16. Specific performance of a contract can not be enforced in favour of a person--
(b) who has become incapable of performing, or violates any essential term of, the contract that on his part remains to be performed, or acts in fraud of the contract, or willfully acts at variance with, or in subversion of, the relation intended to be established by the contract; or
(c) who fails to over 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.
Explanation.-- For the purposes of Cl.(c)--
(1) where a contract involved 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;
(11) the plaintiff must aver performance of, of readiness and willingness to perform, the contract according to its true construction."
S.16(b) of the Act lays down that specific performance of the contract cannot be enforced in favour of a person who violates any essential term of the contract which on his part remains to be performed. This is the aspect which is very much being pressed into service by the defendants to deny specific performance to the plaintiff. We are not concerned with the other contingencies contemplated under S. 16(b) of the Act. Equally so, the defendants would state that under S.16(c) of the Act, the plaintiff has failed to aver and prove that ho has performed or has always been ready and willing to perform the essential term of the contract, which are to be performed by him.
5. Coming to the averments as such, as required by S.16(c), we should not lose sight of the principal that the plaint must be read as a whole and it is not possible to take too technical a view by dissecting the averments in the plaint to find out as to whether the plaintiff has failed to aver that he has always been ready and willing to perform the essential terms of the contract. We shall shortly examine this aspect. We heard Mr. G. Ramaswami, learned counsel appearing for the defendants to state that the payment of Rs. 10,000 after the registration of the release deed is an essential term and even after the registration of the release deed, on being put on notice of the same, more than once, the plaintiff (sic) no inclination to pay and evaded payment of this sum of Rs. 10,000 as stipulated in the document itself, as per its true construction. Hence, when we examine the grievance that there is lack of averments of the plaintiff''s readiness and willingness to perform the essential terms of the contract, we are obliged to concentrate only on this aspect, namely, the plaintiffs'' readiness and willingness to pay this sum of Rs 10,000. It is nobody''s case that this sum of Rs. 10,000 stood disbursed. We will presently come to the other contention as to whether the plaintiff committed violation of the terms of payment of Rs. 10.000, which the defendants want to characterise as an essential term, and hence, he is disentitled to seek specific performance.
6. The requirement under S.16(c) of the Act has got a legal ethic behind it and that is, in a suit for specific performance, the plaintiff must have treated and is required by Court to treat the contract as still subsisting and it is only to bring out the stand of the plaintiff, he is enjoined to make the requisite averments that he is ready and willing to perform the essential part of the contract.
7. Even prior to the enactment of the Act, under the Specific Relief Act, 1877, even though there was no such specific provision as we find in S.16(c) of the Act, the said principles stood countenanced by case law and only to incorporate the said principles laid down by case law, this new provision was introduced in the Act. In AR deshir Mama v. Elora Sassoon it was observed as follows:
Although so far as the Act is concerned there is no express statement that in a suit for specific performance the averment of readiness and willingness on the plaintiff''s part upto the date of decree is as necessary as it was always in England, it seems invariably to have been recognized that the Indian and the English requirements in this matter are the same.
Where the injured party sued at law for breach, going, as in the present case to the root of the contract, he thereby elected to treat the contract as (sic) an end and himself as discharged from its obligations. No further performance by him was either contemplated or had to be tendered. In a suit for specific performance, on the other hand, he treated and was required by the Court to treat the contract as still subsisting. He had in that suit to allege, and if the fact was traversed, he was required to prove a continuous readiness and willingness, from the date of the contract to the time of the heating, to perform the contract on his part. Failure to make good that averment brought with it the in evitable dismissal of his suit.
The Law Commission of India (Ninth Report on Specific Relief Act, 1877, in paragraph 60 of its report recommended as follows;
60. It has been held by the Privy Council that in a suit for specific performance, the plaintiff must show that all conditions precedent have been fulfilled and also allege and (where the fact is traversed) prove a continuous readiness and willingness to perform the contract on his part, from the date of the contract to the time of hearing. Though there is no express requirement to this effect in the Specific Relief Act, it has been held that failure to allege readiness and willingness will lead to a dismissal of the suit.
But the plaintiff need not prove performance of or over readiness and willingness to perform nonessential terms; or terms of a separate or collateral contract; or terms the performance of which has been prevented or waived by the defendant: or terms, the performance of which has become impossible without the plaintiff''s fault.
We consider that the doctrine of readiness and willingness so formulated should be incorporated into our Act.
In
...It is well-settled that in a suit for specific performance the plaintiff should allege that be is ready and willing to perform his part of the contract. In the present case, no such averment is made in the plaint.
In Oubeph Varghese v. Joseph Alley 1970 2 S.C.R. 703 : 83 L.W. 37 (S.N.) the Supreme Court took note of the observations in its earlier pronouncement referred to above and further opened that there should be adherence to the forms prescribed in the first Schedule to the Code of Civil Procedure, and it was stated as follows:
...A suit for specific performance has to conform to the requirements prescribed in Forms 47 and 48 of the 1st Schedule in the Civil Procedure Code. In a suit for specific performance it is incumbent on the plaintiff not only to set out the agreement on the basis of which be sues in all its details, he must go further and plead that he 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 perform his part of the agreement.
We can take it that subsequent pronouncements of Courts have uniformly adhered to the above principle and there is no necessity to multiply citation of authorities on this proposition.
8. Mr. M. Raghavan, learned counsel for the plaintiff, would contend that the defendants never voiced forth a grievance in their pleadings that there was lack of averments in the plaint of readiness and willingness on the part of the plaintiff and there was no issue, and hence, the defendants cannot be heard to advance such a contention for the first time before us. We are sorry, we cannot subscribe our support to this submission of the learned counsel. Compliance with S.16(c) of the Act is not an empty formality. It is a mandate of the statute. Irrespective of whether the opposite party raises a contention or not with regard to compliance with S. 16 (c), it is the duty of the court to advert to this aspect to find out compliance or otherwise and when there is non-compliance with this statutory mandate, to decline to grant specific performance. A similar contention was raised before S. Malik, J., of the High Court of Allahabad in
It was argued by the learned counsel for the plaintiff-respondent that no specific issue was framed by the trial court on this point and as it does not appear that the appellants or defendant No. 1 pressed for framing of such an issue, the appellants should not be allowed at this stage to raise this question which does not appear to have been specifically urged either before the trial court or in the Lower Appellate Court. The contention has no force. In view of S.16 (c) of the Specific Relief Act, it was the duty of the courts below to enter into the question as to whether the plaintiff had made an averment as required in Cl. (c) of S.16 of the Specific Relief Act and also as laid down in paragraph 3 of Form No. 47 of the First Schedule of the CPC because without giving a finding that the plaintiff, in fact, had done so, they could not have decreed the plaintiff''s suit.
9. In H.G. Krishna Reddy & Co v. M.M. Thimmiah AIR 1983 Mad. 169 : 96 L.W. 89, a Bench of this Court, consisting of K.B.N. Singh, C.J., and Padmanabhan, J. took note of the rigour of S. 16(c) and held as follows;
S.16(c) of the Specific Relief Act, 1963 is prohibitory and a specific performance of a contract can not be granted in favour of a person unless he avers and proves his readiness and willingness to perform his part of the contract. That being the nature of the statute, it would be the duty of the court to see whether the person who seeks to enforce the contract satisfies the mandatory provisions of S.16 of the said Act. If the conditions are not satisfied, the Court is bound to dismiss the suit.
Lack of plea by the other side and lack of formulating an issue over the same shall not absolve the Court from its duty to advert to this statutory mandate to find out compliance or non-compliance with it, and in the latter case, the Court is left with no other alternative but to dismiss the suit.
10. Mr. M. Raghavan, learned counsel for the plaintiff, would submit that the plaint averments, read cogently, do make out that S. 16(c) of the Act, when it requires the making of the averments of readiness and willingness stands amply satisfied. So far as the requisite averments are concerned, our reading of the plaint can not be disjointed and if so read, they do make out that the requisite averments with regard to the readiness and willingness on the part of the plaintiff to perform the essential term of the contract are there without being shrouded in any ambiguity. In paragraph 6 of the plaint, the terms of the contract have been set out. In sub-paragraph (v), it has been averred as follows:
Immediately after getting the release as aforesaid a sura of Rs. 10,000 shall be paid to the vendors towards family expenses which shall be received by 1st defendant and a receipt issue therefore.
In the beginning of paragraph 8, it has been averred;
The plaintiff has always been ready and willing to have the sale transaction completed.
In paragraph 9, referring to the reply notice, dated 22nd January, 1973 as per Ex.A4 it has been averred as follows:
...The plaintiff replied the same by notice, dated 22nd January, 1973 setting out the real facts and reiterating his readiness to perform his part of the agreement....
Even the last sentence in paragraph 9 runs as follows:
...It is only on account of the following circumstances which are attributable to the defendants failure to fulfill in terms of agreement, they have not so far executed the sale deed as agreed notwithstanding the fact that the plaintiff, the other party to the agreement has always been ready to take up the sale.
11. In Cort v. The Ambergate, etc., Railway Company (1851) 17 Q.B. 127, the observations of Lord Campbell run as follows:
In common sense the meaning of such an averment of readiness and willingness must be that the non-completion of the contract was not the fault of the plaintiff and that they were disposed and able to complete it if it had not been renounced by the defendants.
12. In Arjuna Mudaliar v. Lakshmi Ammal AIR 1949 Mad. 265 : 61 L.W. 601, the following observations are worth noting:
Undoubtedly in a suit for specific performance the plaintiff has to allege that he is ready and willing to perform his part of the contract..........
...The averment that the plaintiff had no objection to perform the contract in accordance with the decision of the court was a sufficient averment of his readiness and willingness to perform his part of the contract.
13. In Shamlal v. Yesaram, AIR 1954 Nag. 334 a Bench of the Nagpur High Court countenanced the principle that where the plaint in a suit for specific performance, does not contain the specific words "readiness and willingness" on the part of the plaintiff but the plaint as a whole complies in substance with this requirement the plaint cannot be thrown out on this ground. The learned judges while observing as above, took note of the ratio of Lord Campbell, extracted above.
14. In Narayan Nato Rao v. Amrit Haribhau, AIR 1937 Bom. 241 the question arose as to how to apply the test with reference to the averments that the plaintiff treated the contract as subsisting. The Court was prepared to take note of the averments in the notice preceding the suit which notice has been referred to in the plaint. In that context, it was observed as follows:
...This he can do by making a specific allegation of that kind in the plaint. In the instant case we find that the plaintiff has clearly referred to the notice given by him to the defendant in which he has expressly stated his readiness and willingness to perform his part of the contract and he has also made a grievance of the fact that in spite of this notice the defendant failed to execute a sale deed in his favour. In the relief clause the only substantial relief which is asked for is the relief of specific performance. He has not even claimed any alternative relief. In the circumstances, therefore, it could amount to being extremely technical if I were to hold that the plaintiff has not expressed his readiness and willingness to perform his part of the contract.
15. In Subbayya v Garikati, AIR 1957 A.P. 307 after referring to the decision in Arjuna Mudaliar v. Lakshmi Ammal, AIR 1949 Mad. 265 : 61 L.W. 601 the argument that it should be specifically pleaded that the purchaser was continuously ready and willing to perform the contract was repelled in the following terms:
...I am unable to accede to this argument either, in my opinion, the recitals in paragraphs 6 to 8 of the plaint are sufficient to show that he was ready and willing to perform his part of the contract. It is enough if it is made clear that he was continuously ready and willing to fulfill the terms of the contract.
16. In
17. In
It is undoubtedly true that there are divergent views as to the extent of the strictness in which plaints are required to be drifted. However, I have not been able to persuade myself to accept that if a plaintiff expresses that he was not responsible for non-completion of the contract and he was disposed and able to complete it, he should be non-suited merely because the specific words required in the forms of the Civil P.C. are not reflected in the pleadings.
18. In
The substantive provision incorporated in S.16 (c) of the Specific Relief Act does not insist upon a particular set of words being employed; the averment, according to S.16 (c), must in substance indicate the continuous readiness and willingness on the part of the person. The form prescribed under 0. 6, R. 3, C.P.C. is procedural; it is a rule of pleading; this has for its object the advance of the cause of justice and is not intended to short-circuit decision on merits. It is procedure, something designed to facilitate justice and further its end, not a penal enactment.
19. In our view, the court need not insist that the very language of the section should be repeated in the plaint. After all, the intendment behind the statutory provision is to find out as to whether the plaintiff treated and treats the contract at all relevant points of time as subsisting on the basis of which alone he can ask for specific performance of the contract. Pleadings need not be thrown out on the simple ground that the plaintiff has not borrowed the language of the statutory provision. If, on a comprehensive reading of the plaint allegations, the stand of the plaintiff is clearly made out that he has always been ready and willing to perform the essential terms of the contract, that would suffice the requirement of making averments under S. 16(c) of the Act. In our opinion, the averments in the plaint are adequate and unambiguous to the effect required by S.16(c) of the Act.
20. We are keeping aloof and distinct the other ingredient adumbrated in S.16 (c) of the Act, namely, that the plaintiff must not only aver but also prove that he has always been ready and willing to perform the essential terms of the contract. Averment of allegation is one part of the mandate and the other part is proof of such averment or allegation. This question with reference to proof may be appropriately dealt with the question as to whether the plaintiff violated or committed breach of any essential term of the contract. If the plaintiff did violate or commit breach of any essential term of the contract, then, certainly, he cannot claim that he was ready and willing to perform the said term. By the very fact that the plaintiff committed breach of the essential term of the contract, his case of readiness and willingness to perform will stand demolished. As stated above, we will examine this aspect separately. But, in our view, the plaint, read as a whole does satisfy the requirement of making the requisite averments or allegations that the plaintiff has always been ready and willing to perform the essential terms of the contract.
21. Coming to the payment of Rs. 10,000 the clause in the document is specific. It states as follows:
A sum of Rs. 5,000 was contemplated to be paid as an advance at the time of the registration of the contract Ex.A-1. There is another clause with regard to the obtaining of the release from the sons and widow of Kandaswami Pillai and payment to be made therefore. The term relating to obtaining of such a release and payment therefore could also be made the bone of contention between the parties. But, before us the defendants are content to point out the accusing finger with reference to the non-payment of the sum of Rs. 10,000 whatever be the contention and controversy that could arise over the clause relating to the obtaining of the release and payment therefore, and in fact, we heard two conflicting constructions being put on this clause, one on behalf of the plaintiff and the other on behalf of the defendants, the payment of Rs. 10.000 stands as a separate and an independent stipulation in the contract. The liability to pay this sum of Rs. 10,000 arises after the release deed is registered. This payment of Rs. 10,000 was meant for family expenses. It is true, the document as such has not stipulated any specific time limit for the payment of this sum of Rs. 10,000. But, after the registration of the release deed, the defendants did demand the payment of Rs. 10,000 Certainly, this was not an amount stipulated and agreed to be paid at the time of the registration of the sale deed. The contract stipulates that after deducting the amounts to be paid for obtaining the release and this sum of Rs. 10,000 the balance alone should be paid at the time of registration of the sale deed. Hence, positively this sum of Rs. 10,000 should be paid before the registration of the sale deed and after the registration is of the release deed. It was and is not the case of the plaintiff that the release deed was not at all registered. In fact, the stamp papers for the release deed stand in the name of the plaintiff. It is only in this context and in this back ground the defendants have raised their voice of protest against the plaintiff getting specific performance by stating that the plaintiff committed breach of an essential term of the contract and hence, the mischief of S. 16 (b) of the Act is attracted.
22. To attract S.16 (b) and (c) of the Act the term in respect of which breach is complained and in respect of which there is the statutory insistence of averments, followed by proof of readiness and willingness to perform, must be an essential term. The grievance of the defendants is built upon the proposition that the payment of Rs. 10,000 after the registration of the release deed ought to have been fulfilled, especially after demand for payment had been made, without any postponement. This sum of Rs. 10,000 is part of the consideration. The parties consciously stipulated in Ex.A1, which is the sole contract between the parties, that this sum of Rs. 10,000 should be disbursed after the registration of the release deed and certainly, before the registration of the sale deed. It is too late in the day to advance before this Court a contention and in fact we did not hear such a contention -- that the release deed was not registered. The plain tiff was putting forth a stand that the release deed ought to have been shown to him. We will shortly advert to this aspect to show how futile and glibe this contention of the plaintiff is, when he states that there was an omission to show the release deed and hence, he withheld payment of Rs. 10,000. It was stipulated that this sum of Rs. 10,000 was to meet the family requirements of the defendants. It was not argued before us that this statement had no meaning at all In fact, no attempt was made before the court below that such a meaningless statement was incorporated in the document and the defendants had no necessity to have this amount to meet their family requirements at that relevant point of time. If the parties consciously stipulated that a particular amount, being part of the consideration, is to be disbursed at a particular point of time, we would be practically watering down and belittling the significance of the solemn obligation undertaken by one party and accepted by the other. There is no need to probe into the question as to whether the defendants had any necessity and contingency to insist for the payment of Rs. 10,000. That was the obligation specifically cast upon the plaintiff under the contract to be discharged after the registration of the release deed. 1 here cannot be an escape from it in the absence of any convincing answer. The plaintiff cannot be heard to say that he will pay at the time of the registration of the sale deed. It should be paid as contemplated between the parties, in the contract, after the registration of the release deed. Even though no specific time for such payment was stipulated, it ought to have been paid at least when demand therefore was made, stipulating a time for compliance and further notifying that non-compliance would entail cancellation of the contract.
23. Sir Edward Fry in "A Treatise on the Specific Performance of Contracts", 4th Edition, states at page 404:
Of what terms must the plaintiff show the performance?:-
(i) All conditions precedent;
(ii) The express and essential terms of the contract;
(iii) Its implied and essential terms, and
(iv) All representations made at the time of the contract on toe faith it was entered into, but that he need not show performance of;
(v) Non-essential terms;
(vi) The terms of a collateral contract, or
(vii) Terms of which the defendant has prevented or waived the performance, Lastly, it will be necessary to consider
(viii) Term''s, the performance of which has become impossible without the plaintiff''s fault or default". We can take it that if that if there was a representation made at the time of the contract, on the faith of which it was entered into, it would be an essential term of the contract. The parties are not supposed to have enumerated the terms of the contract and the manner and the order in which they have got to be performed without any meaning and significance attached to them. Courts are not supposed to water down the basic understanding on which contractual obligations were struck and privileges were conferred.
24. In
...On the materials produced by the plaintiff himself and in the light of the defendants'' letter Ex.3, there can be no doubt that this payment of the selami money within one year was a vital term of the alleged agreement which was intended to be performed by the parties within the stipulated time of one year from the date of agreement, namely, 8th Aswin, 1349 B.S., so that the document of lease might be executed and the transaction completed within that period. This is confirmed by the circumstances of the case and the conduct of the parties themselves. In this context, the above stipulated time for payment of the selami money must be regarded as of the essence of the contract and, the plaintiff having failed to perform this essential part of the contract and his explanation for his failure in that behalf being utterly unsatisfactory and wholly unworthy of acceptance, he will certainly not be entitled to specific performance of the disputed agreement for lease. On the merits, therefore, his suit for specific performance must fail.
25. Mr. M. Raghavan, learned counsel for the plaintiff, would rely on a pronouncement of a Bench of this Court, consisting of Sellappa v. Morappa AIR 1965 Mad. 37 : 77 L.W. 615, to state that by the non-payment of the sum of Rs. 10,000 there was no alteration of the mutual relationship of the parties. Learned counsel forgets that the facts of the case and the terms of the agreement dealt with by the Bench were entirely different. There, the agreement provided for a penalty for non-fulfillment of the obligations out of the consideration to be paid. The plaintiff in that case withheld a part of it, taking umbrage under the penalty clause and in these circumstances, the Bench viewed the matter as not a violation of an essential term. The facts of the present case being different, we do not think that the learned counsel for the plaintiff could derive any support from that decision.
26. It is not possible and it is not necessary to lay down an iron-jacketed and a rigid definition as to what is an essential term. The import and implication to be attached to a particular term stipulated in a contract, for it to become an essential term, will depend upon the facts of each case, and in particular, the intention of the parties. If the parties consciously stipulated a particular obligation to be fulfilled by one of them on a specified contingency coming to pass, on the faith of which the contract was struck, it is not permissible for courts to belittle the same and slight non-fulfillment of the same by the party concerned, and still proceed to accord specific performance at the instance of the defaulting party. We must also point out that we are not dealing with the ultimate payment and disbursement of the balance of the purchase money which contingency would arise only at the time of the execution of the sale deed and we are not testing the plaintiff''s readiness and willingness to pay the balance of the purchase money. We are aware that in such a case, it is not essential for the plaintiff to actually tender to the defendants such money or deposit the money in court, except when so directed by the Court. We are dealing with a term in the contract which stipulates that on the passing of a particular contingency, a particular amount should be paid to meet a specified requirement of the defendants.
27. The plaintiff himself understood that this sum of Rs. 10,000 should be paid immediately after getting the release, towards family expenses. He has stated so in paragraph 6(v) of the plaint, already extracted. The plaintiff did not interlink this payment of Rs. 10,000, with regard to the modus operandi to be adopted in and the payment to be made for the execution of the release deed, as now attempted by his learned counsel before us. Admittedly, the parties did not strictly adhere to the apparent tenor of the document Ex.A1, with regard to the execution of the release deed. But, the plaintiff did not make a complaint out of this. He never wanted to wriggle out of the obligations under the contract and disrespect the same on the ground, he was not allowed to participate in obtaining the release deed and in paying the amount to the releasers by himself. As we stated earlier, the only grouse which the plaintiff seemed to advance was that the release deed was not shown to him and on this ground he wanted to withhold the payment of Rs. 10,000. Learned counsel for the plaintiff would state before us (hat the release deed was not executed in the manner and amounts were not paid as contemplated by the parties in the contract and further, the release deed ought to have been handed over to the plaintiff, and on account of these laches on the part of the defendants, the plaintiff had the justification to withhold the payment of Rs. 10,000. The present case advanced by the learned counsel for the plaintiff was not the one expressed in his pleadings. Equally so, such was not the case which the plaintiff projected in the correspondence which got exchanged between the parties. One would except the plaintiff to take up the cudgels first with regard to the non-respecting of the obligations, if any, cast upon the defendants under the contract, Ex.A1. Portently, he did not do so. On the other hand, the note of complaint was struck by the defendants by the issuance of Ex. A3 on 18th January, 1973, Here again, in paragraph 1 (c), the defendants have recapitulated the terms of the contract that the sum of Rs. 10,000, after the release, should be paid to them for family expenses. They stated that the release deed had been registered as document No. 2966/72 before the Joint Registrar III, Tiruchirappali. They further stated that after the registration of the released deed, the defendants approached the plaintiff and showed the released deed and demanded not only a sum of Rs. 40,000 which they say, was paid towards the release, but also Rs. 10,000 which was agreed to be paid after the registration of the release deed. The defendants did not lack evincing an anxiety to have the transaction completed and they demanded completion of the transaction, stipulating seven day''s time therefore from the date of receipt of Ex.A3. They further gave the ultimatum that if the plaintiff is not going to respect his obligations and fulfill them within the period stipulated, the contract would be deemed to have been cancelled and the same would not be binding on the defendants and that they would have the full liberty to have the sale effected in favour of others, The reply to this notice, Ex.A3 is the original of Ex.A4, dated 22nd January, 1973. This notice, in our view, is glib and does not express any specific and tenable stand with regard to the discharge of the obligations cast upon the plaintiff. As we have already stated the plaintiff wanted to avoid the payment of Rs. 10,000 on the ground that the release deed was not shown to him. The plaintiff conveniently stopped with this bare averment of complaint. He did not even call upon the defendants to show the release deed. This attitude does not commend to us the conduct of the plaintiff as one indicative of readiness and willingness to honour his obligations under the contract. The plaintiff has got other grievances to express with regard to the non-furnishing of the details of the properties offered as security, the ambiguity which he felt on account of the name of a tenant standing registered in the Municipal Registry and the non-obtaining of the income tax clearance certificate. But, these features are not and could not be linked with the obligation to pay Rs. 10,000 which straightway arose after the registration of the release deed. In fact, the plaintiff has ignored them in the suit, when he wanted specific performance.
28. When we remember that the very stamp papers for the deed of release were purchased in the name of the plaintiff and when it is not the case of the plaintiff that the release deed was not, in fact, obtained and registered as contemplated in the contract, we legitimately feel that the answers of plaintiff for not honouring his obligations with regard to the payment of Rs. 10,000 for family expenses to the defendants is too facile for us to accept as a tenable answer at all and they patently appear to us to be afterthoughts. The defendants sent a rejoinder on 31st January, 1973 as per Ex.A5. They reiterated that the release deed was in fact, shown to the plaintiff. They further pointed out that the stamp papers for the release deed were purchased by the plaintiff and he cannot show ignorance of the release deed and its registration. They further referred to the fact that even in the earlier notice, Ex.A3 they had given the details of the registration and desperately ,they said that the plaintiff could as well satisfy about the release, deed from the particulars already furnished. We cannot find fault with this attitude of the defendants because even under the original of Ex.A4, the plaintiff never demanded the production of the release deed before him and further stated that he would disburse this sum of Rs. 10,000 on such production and exhibition. The defendants, in Ex.A5, clearly stated that the plaintiff had no right to keep quite without paying Rs. 10,000 as agreed to, apart from the sum of Rs. 40,000. The defendants, in our view, did not mix up the payment of Rs. 40,000 with Rs. 10,000 even though there was a demand for both. The controversy, if any, with regard to the quantum to be paid for the release deed and the method of payment of the same is a different matter. The payment of Rs. 10,000 stands apart and distinct. The plaintiff was duty bound to pay the same after the registration of the release deed. This is exactly what was contemplated in the contract. We have already extracted the relevant clause in Ex. A1. In the rejoinder, Ex.A5, the defendants stated that the plaintiff committed default in not even fulfilling a part of the agreement, namely, payment of Rs. 40,000 towards the release deed and Rs. 10,000 after the release deed. They further called upon the plaintiff to pay these amounts to prove that he was not at default, without resorting to replies and they specifically stipulated that if compliance was not made within three days of the receipt of the rejoinder, namely Ex.A5, the contract would be treated as cancelled. We must remember that the release deed got registered on 10th October, 1972 and Ex.A5 is dated 31st January, 1973. The defendants were perfectly justified in issuing the rejoinder, Ex.A5 stipulating a time for compliance with the solemn term with regard to payment of at least this sum of Rs. 10,000.
29. It is true, true is no time limit as such specifically stipulated in the contract for the payment of this sum of Rs. 10,000. Yet, the defendants rightly made time, the essence of fulfillment of this term of the contract by issuing Ex.A5, if not Ex. A3. That even though originally time was not specifically made the essence of the contract or the performance of a term of a contract, still the parties could, by notice issued, in stated circumstances, make time the essence of the contract, is well-settled proposition and the authorities are clear over the same. In the words of Sir Edward Fry:
Where time was not originally of the essence of the contract, but one party has been guilty of gross, vexatious, unreasonable, or unnecessary delay or default in relation to it, the other party becomes entitled to limit a reasonable time within which the contract shall be perfected by the other; and in default of obedience to such notice the court will not enforce specific performance, but will leave the parties to their strictly legal rights.
In
Time can be made the essence of the contract by subsequent notice given by any one of the parties to the contract, even though S.55 of the Contract Act does not provide for such a notice. It is of course necessary that if the notice wants time to be made essence of the contract, it must expressly or by necessary implication say so.
30. In fact, Mr. M. Raghavan, learned counsel appearing for the plaintiff, would not seriously dispute the above proposition, but he would build an argument that only a party who is not at fault could make time the essence of the contract by issuance of a notice. Learned counsel would expatiate this aspect by linking the payment of Rs. 10,000 with the payment to be made under the modus operandi to be adopted for the release deed. Learned counsel would state that only on the plaintiff being put on notice as to what exactly was the amount to be disbursed for the release deed and only on and after the plaintiff paying the same, the obligation to disburse the sum of Rs. 10,000 would arise after the registration of the release deed. Learned counsel does not want to disassociate the two aspects from one another and he wants them to remain intertwined on the question of discharge of the obligations under the contract. First of all, we must point out that such was not at all the case pleaded in the plaint. Such was not the case put forth in the course of oral evidence. Such was also not the case put forth in the reply under the original of Ex.A4. Hence, the present theory, in our view, is nothing but an afterthought, intended to cover the laches which patently stare in ones face. The reliance placed by the learned counsel for the plaintiff on the pronouncement of the Supreme Court in Nathulala v. Phoolchand 1971 S.C.W.R. 175 could be of no avail to the plaintiff. The principle is well-settled that in considering whether a person is willing to perform his part of the contract, the sequence in which the obligations under the contract are to he performed must be taken into account and if under the terms of the contract the obligations of the parties have to be performed in a certain sequence, one of the parties to the contract can not require compliance with the obligations by the other party without in the first instance performing his own part of the contract which, in the sequence of obligations, is performable by him earlier. This principle, was applied to the facts of the case dealt with by the Supreme Court and it found that there was a clear obligation case upon one of the contracting parties with regard to getting the Revenue records rectified by securing the deletion of the concerned individual''s name and there was an implied condition of the contract that the said party should also secure the sanction of the Collector to the transfer under the provisions of the Madhya Bharat Land Revenue and Tenancy Act 66 of 1950. The first condition was not fulfilled until a particular time and the second condition was never fulfilled and, in the said circumstances, the Supreme Court held that the said party having failed to carry out his part of the contract, the other party could not be called upon to perform his part. The facts of the present caw are different. The obligation to pay the sum of Rs. 10,000 arose after the registration of the release deed which the defendants were found to secure and did secure. The factum of the release deed having got registered was brought to the notice of the plaintiff. Though there is a dispute as to whether the release deed as such was shown to the plaintiff, the details of the document and registration were furnished to the plaintiff and only thereafter the call was made to pay the sum of Rs. 10,000. The present case of the plaintiff, put forth through his learned counsel that because the defendants did not have the release deed secured and registered in the manner contemplated in the contract, they cannot demand this sum of Rs. 10,000 is a theory which, as we stated above was never advanced as an answer to the demand for payment of this sum of Rs. 10,000 at any point of time earlier.
31. To sum up, the contract specifically stipulated the payment of Rs. 10,000 after the registration of the release deed. The factum of registration of the release deed was not and is not being put in issue. In fact, a registration copy of the release deed has been produced in this appeal and we have received the same by orders passed in C.M.P. No. 2585 of 1935. Though it is dated 30th June, 1972, it got registered on 10th October, 1972, long prior to the notice, Ex.A3 issued on 18th January, 1973. As already stated, there is no quarrel before us over the proposition that though there was no stipulation of specific time within which the obligations under a particular term of the contract should be discharged, in that time was not initially contemplated as the essence of the contract, yet, when one of the parties calls upon the other party to the contract, who exhibits an unreasonable and recalcitrant attitude, to fulfill and discharge the obligations cast upon him, specifying a particular time therefore, time would become the essence of the contract. In the present case, though not specifically under Ex.A3 dated 18th January, 1973, yet under Ex.A5 dated 31st January, 1973, the defendants did demand the payment of Rs 10,000 as per the contract, fixing a particular time therefore and if, in spite of such a demand, the plaintiff cared not to adhere to and respect his obligations with regard to the payment of this sum of Rs. 10,000 and has no convincing answer or explanation for so doing, we do not think he could still be treated as a person who has not committed default with regard to an essential term of the contract. On the other hand, the facts of the case do bear out that the plaintiff must be held to have committed violation of an essential term of the contract and hence, the mischief of S.16(b) of the Act is attracted.
32. Mr. M. Raghavan, learned counsel for the plaintiff, conceived of an answer and expressed the same before us by submitting that the demand for the payment of Rs. 10,000 was combined with the demand for the payment of Rs. 40,000 which, the defendants claim, was paid for obtaining the release and the demand was a composite demand and even if the plaintiff had paid this sum of Rs. 10,000, yet, the defendants would not have obliged by completing the contract. If the plaintiff had kept himself above board by not violating an essential terra of the contract, and in this case, the payment of Rs 10,000 and if in spite of the same the defendants tried to wriggle out of the contract only on this stand, in the absence of any other convincing answer for them, certainly the court will not permit the defendants to stall off fulfillment of their obligations under the contract. But the plaintiff cannot mix up the two aspects, which was never done earlier, as an acceptable answer for his violation of the essential term. If there is a term to be performed and which term is essential as the parties understood the same on the facts and circumstances of the case, and if there is a violation with regard to the performance of the same by the plaintiff, in our view, the mischief of S.16(b) of the Act would be attracted and would disentitle the plaintiff from seeking specific performance.
33. The attempt on the part of the defendants was also to demonstrate that even assuming that the averments in the plaint are sufficient with regard to the plaintiff''s readiness and willingness always to perform the essential term of the contract, yet, these averments have not gone beyond the stage of being bare averments alone and they have not been proved to be the factual position. The discussion which we have made on the question of violation or breach of the essential term of the contract, in that the plaintiff did not pay this sura of Rs. 10,000 stipulated in the contract, Ex.A1 will hold good for this aspect also.
34. As we have already noted, the purpose behind the statutory provision is that where the plaintiff brings the suit for specific performance of a contract for sale, he must be found to have been always ready and willing to perform the essential terms of the contract in accordance with its construction, not at some point of time, but throughout, at all relevant points of time. If this element was lacking at any point of time, then the court must hold that the proof required under S.16(c) of the Act on the question of the plaintiff being always ready and willing to perform the essential terms of the contract is absent. In the instant case, the plaintiff, by his attitude of postponing the payment of Rs. 10,000 has exposed a position otherwise, namely, that he was evasive and was not astute to honour his solemn obligations in this regard. The facts discussed show that in spite of registration of the release deed and that too, with the stamp papers purchased in the name of the plaintiff and in spite of the factum of registration having been brought to the notice of the plaintiff, the plaintiff put forth a very glib stand that he was not shown the release deed. But, even this stand, he did not prosecute by calling upon the defendants to produce and exhibit before him the release deed. A note of complaint was struck and it was left at that In this connection, we must also take note of the fact that Ex.A-5 remained unanswered by the plaintiff. He neither tendered this amount of Rs. 10,000 nor did he call upon the defendants to show the release deed, so that he could disburse this sum of Rs. 10,000 if, in fact, the non-showing of the release deed alone was the impediment from the point of view of the plaintiff. This behaviour of the plaintiff in lying over for a considerable length of time and practically after the lapse of two years to corns to court seeking specific performance, speaks against him and dissuades this Court from countenancing the case of the plaintiff. It is true, the suit had come to be filed within the time allowed by the law of limitation. But, that is not the point which we are obliged to take note of. We find that the plaintiff, after adopting an evasive and an untenable stand, did not evince any interest for a considerable length of time and that too, without responding to Ex.A5 and, in this connection, we can legitimately take note of this aspect of delay as militating against the plaintiff''s case of his always having been ready and willing to perform the essential terms of the contract. Courts have taken note of the delay as a factor contradicting the element of ''readiness and willingness. Delay and laches on the part of a party in fulfilling the obligations cast on him under the contract, even though the time for their performance had ripened without any lawful excuse therefore, will certainly militate against readiness and willingness to perform. Willful delay and default under certain circumstances will be construed as indicative of the party not having been always ready and willing to perform his part of the contract. One who is always ready and willing to perform his part of the obligations would not lie over when an accusing finger is being pointed towards him with regard to the discharge of his obligations under a specific term of the contract and he must hasten to keep himself above board. Mr. M. Raghavan, learned counsel for the plaintiff, hastened to cite authorities for the proposition that waiver or abandonment of the right to specific performance cannot be inferred merely from laches or delay in the institution of the suit We are not putting--and such was also not the endeavour by the learned counsel for the defendants--laches or delay in the institution of the suit against the plaintiff, so as to infer waiver or abandonment of the right to specific performance. We are assessing the conduct of the plaintiff as it has come out from the evidence, to find out as to whether he has proved that he was always ready and willing to perform the essential terms of the contract. The conduct and attitude of the plaintiff are relevant and they do not make out that the plaintiff was in fact, ready and willing to perform the essential term of payment of Rs. 10,090 after the registration of the release deed, as solemnly undertaken by him in the contract. This sum was not intended to be paid as the balance of the consideration at the time of the execution and registration of the sale deed. It was intended to meet a specified contingency, namely, family purposes of the defendants. It was specifically contemplated and stipulated to be paid after the registration of the release deed. The evidence placed in the case leaves no room for doubt in our mind that the plaintiff has not proved his readiness and willingness to disburse this sum as undertaken by him, but he was unreasonably and willfully evading the same. Our assessment of the facts of the case obliges us to hold that the plaintiff failed to prove that he was always ready and willing to perform the essential term of the contract, namely, payment of Rs. 10,000 and, on the other hand, he was finding ruses to evade the same. The case comes under S. 16(c) of the Act with reference to lack of proof, though not lack of the requisite averments.
35. Mr. G. Ramaswami, learned counsel appearing for the defendants, would also urge that defendants 4 and 5 were minors on the date of the contract, Ex. Al and the property being a joint family property and the first defendant being not only the father but also the manager of the joint family, before there could be a sale of the interest of the quondam minors, defendants 4 and 5, there should be satisfaction that the sale could be for binding legal necessity or for the benefit of the estate. Learned counsel first draws our attention to the recitals in the contract, Ex.A1 to state that there is not even the barest averment to the effect that there was any binding necessity to oblige the sale of the property, not to speak of the benefit of the estate. Property belonging to a joint family is ordinarily managed by the father. The power of the manager of a Hindu joint family to alienate joint family property is analogous to that of a manager for an infant heir. The manager of the Hindu joint family has power to alienate for value, joint family property, so as to bind the interests of both adult and minor coparceners in the property, provided that the alienation is made for legal necessity or for the benefit of the estate. Where the joint family consists of adults and minors, the mere fact that the adult members, including the father-manager, consented to the alienation by itself is not proof of legal necessity, though such consent may have probative value, if in fact, legal necessity existed. Even in cases of such sale, the purchaser is bound to enquire into the necessity for the sale. The burden lay on the plaintiff to prove either there was a legal necessity, in fact, or that he made proper and bona fide enquiry as to the existence of such necessity and did all that was reasonable to satisfy himself as to the existence of such necessity. These are all age old propositions of Hindu Law and there is no escape from them.
36. The above principles will have to be applied both as regards executed contracts as well as executory contracts. A contract by a manager of a Hindu joint family for proper purpose, namely, for legal necessity or for the benefit of the estate is binding on all the members of the family, adults and minors. But, if the contract is not for proper purposes, in the sense it is not for legal necessity or for the benefit of the estate, the other coparceners, adults or minors, can avoid it. If all the coparceners are adults and the contract is made with the consent of all of them, even though without legal necessity, still it would be binding on all of them. On the other hand if it is made without the consent of the entire body of coparceners who are all adults, but for purposes not binding on the family, it would bind only the shares of the consenting coparceners. If the manager of a Hindu joint family enters into a contract for the sale of immovable property belonging to the family for legal necessity or for the benefit of the estate, the purchaser would be entitled in law to obtain a decree for specific performance of the contract, though some of the members of the joint family are minors. But, it is imperative on the purchaser to establish and prove that it is for legal necessity or for the benefit of the estate, or he made proper and bona fide enquiry as to the existence of such factors and did all that was reasonable to satisfy himself as to their existence. The plaint averments are, to say the least, very inadequate in this behalf. There is only one sentence in paragraph 7 of the plaint and it states as follows:
The same (referring to the agreement) was executed for a legal necessity and benefit of the family.
The written statement of defendants 4 and 5 is not lacking the requisite voice of protest on this aspect. In paragraph 3, it is stated as follows:
The suit property is admittedly joint family property in which these defendants are entitled to their share by birth. The agreement of sale alleged dated 12th January, 1972 is neither true nor valid nor binding on these defendants. It is indeed significant that the plaint does not contain any averment for what it may be worth regarding the binding nature of the agreement of sale.
In the beginning of paragraph 4, it is stated as follows:
The agreement of sale was not executed for any joint family necessity purpose or for joint family benefit.
In paragraph 11, the relevant averments are:
The 1st defendant as manager of the family had no right to enter into an agreement of the kind in question.
In paragraph 16, the averments runs as follows:
Fact remains that 4th defendant was a minor on the date of the agreement and the 5th defendant is even now a minor. The agreement of sale was not entered into for any joint family binding purposes. It is not supported by necessity or benefit. It is not a bargain that could be enforced against these defendants and they are not bound by same.
37. Coming to the oral evidence, P.W. 1 admits that on the date of the contract, Ex.A), he did not know as to whether the first defendant was having considerable debts. He further admits that he did not even enquire as to why the property should be sold. It has neither been pleaded nor has been proved that the family was having considerable debts to be discharged and that too, by the sale of the property, or the sale would be for the benefit of the estate. The validity and enforceability of a contract by a joint family manager should be judged as on the date when it was entered into and not as on the date when it is sought to be enforced. Nothing has been brought out in evidence that on the date of the contract, Ex.A1 the family of the defendants was burdened with debts and there was an imminent necessity to discharge the same. We do not get any particular for any debt in the materials exposed in the case. Equally so, it has not been proved that the plaintiff, as he was duty bound, made proper and bona fide enquiry as to the existence of any legal necessity or the benefit of the estate and did all that was reasonable to satisfy himself as to the existence of such factors. It has also not come out in evidence that the contract would be, even by a remote chance, for the benefit of the estate. In our view the conclusion is irresistible that there existed no legal necessity or benefit to the estate to compel the entering into of the contract, Ex. A1 so that it could be stated that specific performance thereof could be enforced against the shares of defendants 4 and 5. On the date of the contract, defendants 4 and 5 were minors and, of course, they have subsequently become majors. But, this does not alter the application of the principles. Hence, we find the complaint of the learned counsel for the defendants that the contract could not be enforced as against defendants 4 and 5 is a legitimate one in law and on facts.
38. The above complaint, we heard the learned counsel for the defendants projecting not with a view to carve out the shares of defendants 4 and 5 to be kept in fact and leaving the shares of defendants 1 to 3 to be sold away in enforcement of specific performance, He was advancing this aspect only to impress upon the court that even assuming that specific performance could be accorded in respect of the shares of defendants 1 to 3 they having been parties to the contract, yet it will lead to further litigation to effectuate a division and even then, the plaintiff could have only the role of an alienee of a share of the property which also takes in a building and which may be characterised as a dwelling house and defendants 4 and 5 could still insist both in law and in equity to purchase the share of the plaintiff without leaving the property to be disintegrated at the instance of such a third party purchaser and in this view, learned counsel for the defendants would submit that the discretionary relief of specific performance ought not to be accorded. We cannot eschew the possibility of further litigations. The court should, exercising the discretion, refuse specific performance where the granting of such relief would in result multiplicity of unwanted and futile litigations. However, Mr. M. Raghavan, learned counsel appearing for the plaintiff would state that even assuming that specific performance as against the shares of defendants 4 and 5 could not be granted, specific performance as against the shares of defendants 1 to 3 can be granted, further directing partition also in the very same present suit. The plaint is not to that effect and the present plea is only oral. Learned counsel for the defendants was advancing this factor only to dissuade the court from exercising the discretion for the grant of specific performance as against the shares of defendants 1 to 3 even if that is otherwise tenable in law. The defendants had no occasion at all to meet the plea for specific performance at least as against defendants 1 to 3 and consequential partition, for the first time put forth in the course of arguments on behalf of the plaintiff. Even here, the plaintiff may have to face hurdles, factual and legal.
39. The jurisdiction to decree specific performance is discretionary and the court is not bound to grant such relief merely because it is lawful to do so. This principle has found statutory countenance in S.20 of the Act. It is true, the discretion of the Court is not arbitrary, but sound and reasonable, guided by judicial principles. The right to specific performance is not absolute even in the case of a contract which is susceptible to enforcement. The accord of equitable remedy of specific performance is a matter of judicial discretion, of course, not an arbitrary and capricious discretion, synonymous with the mere pleasure of the judge. The sovereignty of technical law stands mellowed, subjugated and even superseded by the domain of judicial discretion and equity.
40. It cannot be argued as a general proposition that in the case of a contract, if it is not enforceable against all, it should not be enforced as against those who are legally and factually susceptible to it. But, in such a contingency the intention must be evident that the parties contemplated that even though specific performance could not be obtained as against all, yet the contract should and could be enforced as against those with reference to whom there is no legal or factual impediment. In Sivasami Chetti v. Sevugan Chetti (1902) ILR 25 Mad. 389, a Bench of this Court, consisting of Benson and Bashyam Ayyangar, JJ., countenanced that whether a document was intended to take effect at least against those persons who had executed the same or it was intended to take effect only if all the parties contemplated to be made parties had executed the same, was dependent upon the intention of the parties. Again, in Nethiri Menon v. Gopalan Nair ILR (1916) Mad. 597, another Bench of this Court, constituted of Spencer, J. and Courts Trotter, J., as he then was observed as follows:
... but if a document is drawn up in the name of all, and it is the intention of the parties that all should execute it, it will be incomplete and inoperative till all have dons so. See Sivasami Chetty v. Sevugan Chetty1 and Latch v. Wedlak 1840 11 A. & E. 959; S.C., 113 E.R., 678".
In
If the intention of the parties in this document had been that nobody would agree to sell his share unless all the others also agreed to sell their shares, the matter would ex necessitate be different. In such a case it could not be held that where one of them had failed to sign the document, the document was a complete document. On the other hand if the sales were not interdependent in the sense that each vendor might well have sold his share of the property without reference to the sale by others, and what really should have been a number of separate sale deeds were rolled into one because of convenience, then the fact that in the agreement to sell one of the vendors had not joined would not affect the question as between the vendee and the vendor who had signed the agreement to sell. The question of intention has to be settled by a reference to the terms of the document and to the circumstances of the case.
In Sethu Parvathy Ammal v. Bajji K. Srinivasan Chettiar 1972 2 M.L.J. 55 : 85 L.W. 89, Ismail, J., as he then was, referred to the above pronouncements amongst others and countenanced that the question as to whether a contract is enforceable at least against the persons who executed it or not would depend upon the intention of the parties.
41. In the present case, we are not able to gather any such intention either in the contract, Ex.A1 or in the materials placed in the case. First of all, we must point out that there is no pleading at all that the parties intended to have specific performance of the contract against those who could be susceptible to specific performance, even in case specific performance could not be enforced against others. The property is a joint family item. It could not have been the intention of the parties that the share of each of the venders could be dealt with separately and without reference to others and their shares, and such share of each one of the vendors could be conveyed independently. The intention was obvious that the shares of all vendors should be conveyed as a unit. If the intention is to be gathered by a reference to the terms of the contract, Ex.A1 and the circumstances of the case, we could not spell out an intention to convey the shares of each of the vendors independently. But we gather that the intention was only to convey the shares of all as an indivisible and single unit, the rights of the vendors interdependent on one another. We must straightway point out that even when defendants 4 and 5 put forth a case that the contract cannot be enforced as against their shares, setting forth the factors justifying it, the plaintiff did not care to file any reply statement advancing factors either of legal necessity or benefit of the estate, or of the intention of the parties to have specific performance at least in respect of the shares of defendants 1 to 3, even if specific performance is not feasible as against the shares of defendants 4 and 5. There was no attempt to have the plaint amended, expressing alternative case of intention of parties to have specific performance at least as against the shares of defendants 1 to 3 and further praying for partition. Furthermore, we have found that the plaintiff had exhibited callous and willful omission which exposes only covetousness on his part to get at the property somehow or other and admittedly, he made no enquiries about the existence of binding legal necessities or the benefit of the estate. On an overall assessment of the relevant features, we have come to the conclusion that as a court of equity, we shall not accord specific performance to the plaintiff even in respect of the shares of defendants 1 to 3, assuming that such a relief is otherwise tenable in law. We have already found that the provisions of S.16(b) and (c) of the Act disentitle the plaintiff from getting the relief of specific performance at all. Learned counsel for the defendants also draws our attention to the finding rendered by the court below that only to discharge the debts and to invest the balance of the amount properly, the defendants agreed to sell the property and would state that this conclusion has no foundation on facts and in evidence. We agree with the learned counsel for the defendants that it is so. We make it clear that the above aspect was argued only in the alternative and in addition to, and not in substitution of, the questions under S.16(b) and (c) of the Act, which we have already answered in favour of the defendants.
42. Learned counsel for the defendants also made a submission that the sale, if it is to be effected in implementation of any decree for specific performance, will come within the mischief of the Tamil Nadu Urban Land (Ceiling and Regulation) Act, 1976. The materials placed in the case are scanty and this court is not made wiser as to how at all the provisions of the said Act would be attracted to the sale as such on facts. Realising the insufficiency of the materials placed in the case, learned counsel for the defendants did not further prosecute this submission.
43. Mr. M. Raghavan, learned counsel for the plaintiff, would state that the defendants were also not above board. Expatiating (his submission, learned counsel would state that the defendants ventured to put forth a complaint that they had to sell away their other properties at a low price to get the release deed which is admittedly not true, and further the defendants never stated that they executed a promissory note in favour of the releasers for the amount to be paid for the release deed, which is now stated to be the case and, as per Ex.B2 certified copy of the Subordinate Judge of Tiruchirappalli (admitted as additional evidence as per order in C.M.P. No. 2585 of 1985, a suit is found to have been filed on the promissory note which suit was settled for a sum of Rs. 27,000 only. These features, assuming they are assertive on the conduct of the defendants, cannot absolve the plaintiff from his legal obligations under the contract and the implications of non-fulfillment or, in other words, breach of the same. The vendors are not seeking specific performance, so that it could be stated that their culpable conduct will impinge upon the questions of grant of specific performance to them. But here, the vendee is seeking specific performance, and on the ground of the culpable conduct of (he vendors, the vendee is not avoiding the contract. The conduct of the vendors will not be very germane to bolster up the claim of the vendee if he himself is found to be at fault and which claim could not otherwise be sustained in law. The features pointed out by the learned counsel for the plaintiff are on the other question of the release deed and the consideration paid therefore. As we have already pointed out-the defendants are not, in this appeal, treating the plaintiff at fault for not disbursing the sum of Rs. 40,000 and they are on the question of non-payment of the sum of Rs. 10,000, which is an essential term, as already discussed. In a suit for specific performance of contract, the falsity of the defence story does not necessarily establish the truth of the plaintiff''s story, which must stand or fail on its own merits independently to any inherent weakness in the defence case. Such a view has been expressed by Renupaka Mukherjee, J., in
44. As a result, the defendants succeed; the appeal is allowed; the judgment and decree of the court below according specific performance in favour of the plaintiff are set aside; and the suit of the plaintiff with the prayer for specific performance is dismissed. In the circumstances of the case, the parties are directed to bear their respective costs throughout. Then the question arises as to whether we should order the refund of the sum of Rs. 5,000. We have found that the plaintiff was at fault with regard to the fulfillment of an essential term of the contract and further, he was not always ready and willing to perform the same. The sum of Rs. 5,000 was treated only as an advance in the contract, Ex.A1. It was not stipulated as earnest money deposit liable to be forfeited on the plaintiff committing breach of the contract. The defendants have not placed any material before us to show that they sustained any loss or damages on account of the breach committed by the plaintiff. In the said circumstances, we are of the view that the plaintiff is entitled to get back the sum of Rs. 5,000 with interest at least from the date of suit. Accordingly, while we have negatived the relief of specific performance, we pass a decree in the suit, directing the defendants to pay the plaintiff the sum of Rs. 5000 with interest thereon at 6% per annum from the date of suit, till the date of realisation, but without costs.
