Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 6554 OF 2022
(@ Special Leave Petition (C) NO.25554 OF 2018)
RAMAN (DEAD) BY LRS. …APPELLANT(S)
VERSUS
R. NATARAJAN ...RESPONDENT(S)
J U D G M E N T
Leave granted.
2. The suit for specific performance of an Agreement of Sale of
an immovable property, filed by the respondent herein, was
decreed by the Trial Court but the said decree was reversed by the
First Appellate Court. However, the High Court reversed the
Judgment and decree of the First Appellate Court and restored the
decree for specific performance granted by the Trial Court.
Aggrieved by the same, the legal representatives of the original
defendant are on appeal.
3. We have heard Mr. G. Sivabalamurugan, learned counsel for
Signature Not Verified
the appellants and Mr. S. Nandakumar, learned counsel for the
Digitally signed by
NEETA SAPRA
Date: 2022.09.13
16:34:27 IST
Reason:
respondent.
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4. The respondent herein filed a suit in O.S. No.360 of 2008 on
the file of the First Additional District Munsif, Salem, for specific
performance of an Agreement of Sale dated 19.06.1993,
contending :
inter alia
that the appellants agreed to sell the suit property
which is a land of the extent of about 76 cents for a
total sale consideration of Rs.1,44,000;
that an advance of Rs.25,000 was paid at the time of
execution of the Agreement;
that the defendant received further amounts of
Rs.50,000/ on 19.11.1995, Rs.43,000/ on
11.05.1998, Rs.10,000/ on 27.01.2001 and
Rs.16,400/ on 10.07.2005;
that appropriate endorsements were made on the
reverse of the first, second and third pages of the
agreement;
that the entire sale consideration thus stood paid;
that it was provided in the Agreement that the
defendant should simultaneously enter into an
agreement with his brother’s wife for the purchase of a
portion of her land, to be used as pathway for access to
reach the suit property;
that the time for performance of the obligations under
the Agreement was fixed as 11 months from the date of
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the defendant entering into an agreement with his
brother’s wife for the purchase of the land for the
pathway;
that however when the plaintiff issued a legal notice
dated 27.03.2007, the defendant sent a reply denying
everything; and
that therefore, the plaintiff was constrained to file the
suit.
5. The defendant filed a written statement denying everything,
including the execution of the Agreement. Therefore, the Trial
Court framed the following issues;
“(i) Is the Agreement of Sale dated 19893 real
and true?
(ii) Is the suit barred by limitation?
(iii) Is the plaintiff eligible for the relief of specific
performance?
(iv) Any other relief?”
6. After trial, the Trial Court passed a Judgment and decree
dated 14.02.2012, holding that the Agreement dated 19.06.1993
was true and valid; that the suit was not barred by limitation; and
that the plaintiff was entitled to the relief of specific performance.
7. The First Appellate Court came to the conclusion,
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that the endorsements made in the Agreement of sale
on 12.11.1995, 11.05.1998, 27.01.2001 and
10.07.2005 marked as Exhibit A2 to A5, were not
proved;
that the plaintiff could not prove that he was ready and
willing to perform his part of the obligations;
that the suit was barred by limitation; and
that, therefore, the plaintiff was not entitled to specific
performance.
8. The only substantial question of law framed by the High
Court at the time of admission of the second appeal was as
follows:
“In the light of the finding of the trial Court that Ex.
A1 – sale agreement is true, whether the First
Appellate Court was right in holding that the
endorsements made on Ex.A.1 under Exs.A.2 to A.5
have not been proved though, according to the
plaintiff, it has been proved by the evidence of P.Ws. 2
and 3?”
9. The High Court recorded its opinion on the above substantial
question of law as follows:
“From over all consideration of pleadings, oral and
documentary evidence and the judgment of the trial
Court, it is clear that the first respondent only
executed Exs.A.1 to A.5 and the First Appellate Judge
on erroneous consideration of pleadings and evidence
of P.Ws.2 to 3 held that the appellant failed to prove
the endorsements in Exs.A.2 to A.5 after holding that
Ex.A.1 was executed by the first respondent and
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relying of Ex.A.2 to hold that suit is barred by
limitation.”
10. What was recorded as above was not actually an answer to
the substantial question of law, even if we construe what was
framed, to be a substantial question of law. The above finding is
actually a finding of fact. Apart from that, the High Court also
went beyond the substantial question of law framed by it and
proceeded to hold that the suit was not barred by limitation. The
High Court opined that the time for performance of the obligations
under the Agreement was fixed as 11 months from the date on
which the defendant entered into an agreement with his brother’s
wife for the purchase of a land to be used as pathway. However,
the defendant did not enter into any agreement with his brother’s
wife. On the other hand, the defendant chose to deny the very
execution of Agreement of Sale in his reply notice dated
04.04.2007. Therefore, the High Court held that limitation started
running from the date of refusal and that the suit filed in
November, 2007 was within the period of limitation.
11. The mistakes committed by the High Court were manifold.
First, the High Court framed a question which was actually a
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question of fact which involved appreciation of evidence and not a
substantial question of law. As a consequence, the answer given by
the High Court was only a finding of fact. Next, the High Court
reversed the finding of the First Appellate Court on the question of
limitation, without framing a substantial question of law and
without even referring to the statutory provisions.
12. As we have pointed out earlier, the Agreement is dated
19.06.1993. The Agreement contains four endorsements which are
dated 12.11.1995, 11.05.1998, 27.01.2001, 10.07.2005.
13. The defendant raised the question of limitation, on the basis of
the fact that the fourth endorsement was made beyond a period of
three years from the date of the third endorsement. Such a defence
was based upon Section 18(1) of the Limitation Act, 1963.
14. But as a matter of fact, the limitation for filing a suit for
specific performance, in terms of Article 54 of The Schedule to the
Limitation Act, 1963 is three years, “ from the date fixed for the
performance or if no such date is fixed, when the plaintiff has notice
.”
that the performance is refused
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15. But in the entire memorandum of grounds of second appeal
filed by the respondentherein before the High Court, there was no
whisper or reference to Article 54 of the Schedule to the Limitation
Act, 1963. The only substantial question of law framed by the High
Court at the time of entertaining the second appeal was not about
limitation revolving around Article 54 of the Schedule to the
Limitation Act. Therefore, the High Court could not have answered
the question of limitation in favour of the respondent herein,
without framing any substantial question of law; and without
(i) (ii)
even a reference to Article 54.
16. In any case, the High Court ought to have seen that a Court
cannot grant the relief of specific performance against a person
compelling him to enter into an agreement with a third party and
seek specific relief against such a third party. In other words, the
specific performance of the agreement by the appellants herein,
depended upon the appellants entering into an agreement with a
(i)
third party; and (ii) appellants being in a position to compel such
third party to perform her obligations under such agreement.
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17. The High Court ought to have seen that the specific
performance of the Agreement in question comprised of two parts
namely, the defendant entering into an agreement with his
(i)
brother’s wife for the purchase of a land for providing access to the
land agreed to be sold under the suit Agreement of Sale; and (ii) the
defendant thereafter executing a sale deed conveying the property
covered by the suit Agreement of Sale.
18. Since the defendant’s brother’s wife was not a party to the suit
agreement of sale, the Court cannot compel her to enter into an
agreement with the defendant. In other words, the performance of
the first part of the obligation, which we have indicated in the
preceding paragraph, cannot be compelled by the Court, as it
depended upon the will of a third party. As a consequence, the
performance of the second part of the obligation, may be hit by
Section 12(1) of the Specific Relief Act, 1963 which reads as
follows:
“ 12. Specific Performance of part of contract. (1)
Except as otherwise hereinafter provided in this
section the court shall not direct the specific
performance of a part of contract.
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xxx xxx xxx”
19. From the pleadings on record, it appears that the case on
hand will not even be covered by subsections (2), (3) & (4) of
Section 12 of the Specific Relief Act. Since it is stated very clearly in
the suit Agreement of Sale that the land covered by the Agreement
will not have any access, unless the defendant entered into an
agreement with his brother’s wife, it is clear that none of the
exceptions contained in subsections (2), (3) and (4) of Section 12
will apply.
20. Even the limited rights conferred by Section 13(1)(b) of the
Specific Relief Act are not available to the respondent, as there was
rd
no legal right in the defendant to compel 3 parties to convey their
land to him for the purpose of providing a pathway to the land
agreed to be sold to the respondent herein. Section 13(1)(b) reads as
follows:
| “ | 13 | . | Rights of purchaser or lessee against person |
|---|
| with no title or imperfect title | .— |
|---|
contracts to sell or let certain immovable property
having no title or only an imperfect title, the purchaser
or lessee (subject to the other provisions of this
Chapter), has the following rights namely: -
(a) xxx xxx xxx
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(b) where the concurrence of other persons is
necessary for validating the title, and they are bound
to concur at the request of the vendor or lessor, the
purchaser or lessee may compel him to procure such
concurrence, and when a conveyance by other persons
is necessary to validate the title and they are bound to
convey at the request of the vendor or lessor, the
purchaser or lessee may compel him to procure such
conveyance;”
21. Therefore, the High Court committed a grave error in law in
granting a decree for specific performance. Hence the appeal is
allowed, the impugned judgment of the High Court is set aside and
the relief of specific performance claimed by the respondent is
rejected. However, there will be a decree directing the appellants to
pay to the respondent, the amount of Rs.1,44,400/ paid by the
respondent, with interest @ 9% p.a. from the date of filing of the
suit, till the date of repayment. The parties shall bear their
respective costs throughout.
…………………………….J.
(Indira Banerjee)
…………………………….J.
(V. Ramasubramanian)
New Delhi
September 13, 2022
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