A.S.No.820 of 2015

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 05.01.2026

CORAM :

THE HONOURABLE MR. JUSTICE N. SATHISH KUMAR

AND

THE HONOURABLE MR. JUSTICE R. SAKTHIVEL

A.S.No.820 of 2015

and

M.P.No.1 of 2015

Dr.D.Murugan ... Appellant

Vs.

1.G.Vijayan

2.M.Devika ... Respondents

[2

nd

respondent/defendant was given up by the

plaintiff in the lower Court]

Prayer : Appeal filed under Section 96 of the Code of Civil Procedure

against the judgment and decree passed by the learned Principal District

Judge, Krishnagiri, in O.S.No.39 of 2012, dated 06.01.2015.

For Appellant: Mr.S.Vijayaraghavan

For R1: Ms.K.M.Valsala Kumari

For R2 : Mr.Babu Rangasamy

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J U D G M E N T

(Judgment was delivered by N. SATHISH KUMAR, J.)

Challenging the decree and judgment passed by the learned Principal

District Judge, Krishnagiri, in O.S.No.39 of 2012, dated 06.01.2015,

granting specific performance, the present appeal has been filed by the 1

st

defendant in the suit.

2.For the sake of convenience, the parties are referred to as per their

ranking before the trial Court.

3.Brief facts of the case are as follows :

A sale agreement, dated 25.07.2010, came to be entered between the

plaintiff and the 1

st

defendant for sale of the suit property at the rate of

Rs.14,50,000/- per Acre. The total area agreed to be sold is 5.15 Acres.

Further, it is also agreed between the parties that a sum of Rs.14,50,000/- per

Acre will be paid as per the actual measurement. On the date of agreement,

an advance of Rs.1,00,000/- has been paid by the plaintiff. It is also the case

of the plaintiff that, at the time of agreement, the 2

nd

defendant, who is the

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only daughter of the 1

st

defendant, was staying in USA and the 1

st

defendant

gave assurance to make arrangement to get back her at the time of

registration of sale deed. Despite the request made by the plaintiff, the 1

st

defendant postponed the survey. However, he has received a further sum of

Rs.4,00,000/- on 15.08.2010; Rs.5,00,000/- on 18.09.2010; and

Rs.10,00,000/- on 27.10.2010. Having received a total sum of

Rs.20,00,000/- towards sale consideration, the 1

st

defendant was postponing

the sale under the pretext that he will execute the sale deed after his daughter

returns from USA. According to the plaintiff, though time of three months

was fixed in the agreement, time was never intended to be the essence of the

contract. The plaintiff was always ready and willing to perform his part of

the contract. It is the further contention of the plaintiff that, though the sale

agreement was entered for 5.15 Acres, on the contrary, only 3.31 ½ Acres

was actually available on ground. The plaintiff was also approaching the 1

st

defendant through mediators. However, the defendant was postponing the

sale. Hence, the plaintiff issued a legal notice, dated 01.11.2011, and the

same was replied by the 1

st

defendant with false allegations. Immediately,

the 2

nd

defendant also issued a legal notice to the plaintiff on 12.04.2011,

stating that she has also got right over the sale agreement properties and that

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A.S.No.820 of 2015

the sale agreement will not bind her. Hence, the plaintiff filed the present

suit for specific performance to enforce the sale agreement dated

25.07.2010.

4.Admitting that there is a sale agreement, it is the contention of the

1

st

defendant that the 2

nd

defendant has also got a share in the property. It is

his contention that it was agreed to sell only S.No.460/1, whereas, in the

plaint, the plaintiff has sought for enforcement of contract in respect of

S.Nos.458/2 and 472. Further, it is his contention that, though he has

entered into an agreement, it was agreed that sale can be executed only when

his daughter/2

nd

defendant consents for such sale, since she was residing at

Chicago, USA. After she returned from USA, she has not agreed for sale of

the property and requested the 1

st

defendant to rescind the suit agreement.

Accordingly, the suit agreement was rescinded by notice. It is also his

contention that the plaintiff was never ready and willing to perform his part

of the contract. Hence, he opposed the suit.

5.Based on the above pleadings, the trial Court framed the following

issues :

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(1)Whether the 2

nd

defendant was an unnecessary party to

the suit ?

(2)Whether there is no connection between the properties

mentioned in the agreement and the suit schedule properties ?

(3)Whether time is not the essence of the contract ?

(4)Whether the suit agreement is binding on the 2

nd

defendant ?

(5)Whether the plaintiff is always ready and willing to

perform his part of the contract ?

(6)Whether the plaintiff is entitled to the relief of specific

performance after payment of the remaining sale

consideration?

(7)In the event of the 1

st

defendant refusing to receive the

amount, whether the plaintiff is entitled to deposit the amount

and get the sale deed executed through Court ?

(8)To what other reliefs ?

6.The trial Court has also framed the following additional issues :

(1)Whether the 2

nd

defendant is entitled to half share in the

property ?

(2)Whether the plaintiff is entitled to alternative relief of

refund of Rs.20,00,000/- with interest @ 24% p.a. ?

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7.On the side of the plaintiff, P.W.1 was examined and Exs.A1 to A9

were marked. On the side of the defendants, D.W.1 was examined and

Exs.D1 and D2 were marked.

8.Based on the evidence and materials on record, the trial Court has

granted the relief of specific performance in favour of the plaintiff. As

against the same, the present appeal has been filed by the 1

st

defendant.

9.The main contention of the learned counsel for the appellant/1

st

defendant is that, admittedly, the property is a joint family property. The

plaintiff is also aware of the said fact. The very recitals in the agreement

clearly indicate that the sale should be executed by the legal heirs also. The

2

nd

defendant has a half share in the property. The plaintiff, having made the

2

nd

defendant as a party to the suit, has given up the relief as against the 2

nd

defendant and she has been omitted from the array of parties. Hence, it is

his contention that, when half share of the property belongs to the 2

nd

defendant, the 1

st

defendant has no title to the entire property, and therefore,

the contract cannot be enforced. It is his further contention that the very

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agreement clearly indicates that time is the essence of the contract. The very

recitals with regard to forfeiture of the advance amount, makes time as

essence of the contract. It is the further submission of the learned counsel

for the appellant that the terms agreed between the parties clearly stipulate

that, in the event of the 1

st

defendant not measuring the property or executing

the sale deed, the remaining sale consideration shall be deposited in the

Court by the plaintiff, which has also not been done. It is his further

contention that the plaintiff was never ready and willing to perform his part

of the contract at any point of time. No evidence, whatsoever, available on

record to prove the readiness and willingness of the plaintiff from the very

inception of the contract. Therefore, the learned counsel prays for setting

aside the decree of specific performance.

10.Whereas, the learned counsel for the 1

st

respondent/plaintiff would

submit that, having received Rs.20,00,000/- as advance and agreed to

execute the sale deed within a period of three months, the 1

st

defendant did

not come forward to measure the property. Further, only after the plaintiff

issued the legal notice (Ex.A2) dated 10.01.2011, a reply has been sent by

the 1

st

defendant on 18.02.2011 disputing the contract, followed by the legal

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notice issued by the 2

nd

defendant, dated 12.04.2011 (Ex.A4). It is her

contention that the plaintiff, having paid the substantial amount, had the

capacity to pay the remaining amount and payment of such huge amount of

Rs.20,00,000/- itself clearly proves his readiness and willingness. It is her

further contention that, though the plaintiff has also made the 2

nd

defendant,

who is the daughter of the 1

st

defendant, a party to the suit, she has been

given up since the 2

nd

defendant had withdrawn her suit for partition filed

against her father, stating that she is not claiming any right over the property.

Only in that context, the 2

nd

defendant was removed from the array of

parties. Therefore, that cannot be taken advantage of by the 1

st

defendant.

Hence, the learned counsel prayed for dismissal of the appeal.

11.In the light of the above submissions, now the points that arise for

consideration in this appeal are as follows :

(1)Whether the plaintiff, namely, the 1

st

respondent, was

always ready and willing to perform his part of the contract

from the very inception of the agreement ?

(2)Whether a part of the contract can be enforced without

relinquishment expressed by the plaintiff ?

(3)If the 2

nd

defendant had half share in the property,

without making her party to the suit, whether the contract could

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be enforced in respect of her share, particularly when she is not

a party to the contract ?

Point No.(1) :

12.With regard to Point No.(1), it is not in dispute that the agreement,

dated 25.07.2010, was entered into between the plaintiff and the 1

st

defendant. The recitals in the agreement itself clearly show that the property

was originally allotted to the 1

st

defendant and it is a joint family property.

Further, the recitals also mandate that the 1

st

defendant should execute the

sale deed along with his legal heir. This fact also clearly shows that the

plaintiff is also aware that the property is a joint family property at the

relevant point of time. The agreement has been originally entered for

various Survey Numbers, comprising an extent of 4.50 Acres. That apart,

another 65 Cents is also agreed to be sold. On the date of agreement, a sum

of Rs.1,00,000/- has been received by the 1

st

defendant. It is agreed between

the parties that the sale shall be completed within a period of three months

from the date of agreement, provided the property is properly measured. It

is also agreed between the parties that the sale consideration per Acre would

be Rs.14,50,000/-. After the agreement dated 25.07.2010, within three

months, a further sum of Rs.4,00,000/- has been paid on 15.08.2010 and a

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further sum of Rs.5,00,000/- has been paid on 18.09.2010, which are

evidenced by the endorsements made in the agreement itself. However, the

fact remains that, later, neither of them adhered to the conditions in the

agreement.

13.It is specifically agreed between the parties that, in the event of the

1

st

defendant not coming forward to execute the sale deed within a period of

three months, the plaintiff has got a right to file a suit immediately and

deposit the amount in the Court itself. It is relevant to note that, normally

while filing a suit for specific performance, the law does not mandate actual

deposit before the Court. However, when the parties themselves make such

a condition to deposit the amount immediately, that condition cannot be

ignored altogether.

14.It is further indicated in the agreement that, if the 1

st

defendant was

ready and willing to execute the sale deed, but the plaintiff was not ready to

pay the remaining sale consideration, the advance amount shall be forfeited.

Making forfeiture clause in the agreement indicates that the parties, in fact,

intended to make the time as an essence of the contract. Though, as far as

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immovable property is concerned time is not the essence of the contract, the

time agreed and intended to be acted upon by the parties, cannot be ignored

altogether while enforcing the contract.

15.Be that as it may. The relief of specific performance, being an

equitable relief, a person who seeks equity before the Court, has to show that

he was always ready and willing to perform his part of the contract from the

very inception of the contract. Readiness and willingness is a continuous

process. Readiness virtually means the capacity to raise funds and

willingness is the mental attitude. Unless these twin conditions are satisfied

and established and the plaintiff exhibits both the conditions throughout, i.e.,

from the date of agreement till the agreement culminates into sale, the Court

will not normally enforce such contract. Mere plea that the plaintiff is

always ready and willing, will not actually prove his readiness or

willingness. The plaintiff, in fact, has to establish his capacity to pay the

remaining sale consideration from the very inception till the sale deed is

executed. Similarly, the mental attitude to perform his part of the contract

also has to be exhibited by the plaintiff from the very beginning. However,

in the present case, to show that the plaintiff was always ready and willing,

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no material, whatsoever, placed on record. No evidence is placed by the

plaintiff to show that he had ready cash in his hands to pay the remaining

sale consideration, nor any bank passbook or documents, whatsoever, filed

to show that he always had the capacity to raise the remaining funds.

16.Further, it is relevant to note that, initially, the plaintiff has issued

legal notice on 10.01.2011. Even assuming that the property has not been

measured as agreed in the agreement, the immediate reaction of the plaintiff

would be to issue legal notice then and there, which has not been done. In

the reply notice dated 18.12.2011 (Ex.B1), issued by the 1

st

defendant, he

has clearly exhibited his mind that he is not going to execute the sale deed,

followed by the another legal notice issued by the 2

nd

defendant (Ex.A4)

dated 12.04.2011. The reply notices clearly show that the defendants have

made up their mind not to execute the sale document. In such case, the

plaintiff atleast should have been vigilant and ought to have filed a suit

immediately and made deposit before the Court as per the terms of the

agreement. But, the present suit has been filed only on 23.04.2012, even

after the contract was rescinded by the defendants 1 and 2. This fact clearly

indicates that the plaintiff was not ready and willing to perform his part of

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the contract from the very inception. Even though deposit of the remaining

consideration is not mandatory as per Section 16 of the Specific Relief Act,

1963, the conduct of the plaintiff cannot be ignored altogether, particularly

when the contract itself has been rescinded by the defendants and the terms

of the contract also stipulate for immediate deposit of the remaining sale

consideration before the Court. Despite such terms, merely filing a suit with

a delay of more than a year, clearly exhibits the fact that the plaintiff was

never ready and willing to purchase the property. It is relevant to note that,

even in the entire evidence, the plaintiff has never stated that he had ready

money or capacity to mobilise the money. Therefore, this Court finds that

the plaintiff has not established his readiness and willingness to perform his

part of the contract. Point No.(1) is answered accordingly.

Point Nos.(2) and (3) :

17.It is relevant to note that, though the sale agreement has been

entered into in respect of 5.51 Acres, the suit has been filed only in respect

of 3.31 ½ Acres. Though it is stated in the plaint that the suit has been filed

only on the basis of actual extent available, as far as enforcement of the

contract is concerned, when there is a difference between the extent shown

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in the agreement and the schedule of the plaint, a person seeking

enforcement of a part of the contract, has to relinquish his claim in respect of

the remaining part of the contract which has not been claimed in the suit. In

this regard, it is useful to refer to Section 12 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 a

contract.

(2) Where a party to a contract is unable to perform the

whole of his part of it, but the part which must be left

unperformed bears only a small proportion to the whole in

value and admits of compensation in money, the court may, at

the suit of either party, direct the specific performance of so

much of the contract as can be performed, and award

compensation in money for the deficiency.

(3) Where a party to a contract is unable to perform the

whole of his part of it, and the part which must be left

unperformed either—

(a) forms a considerable part of the whole, though

admitting of compensation in money; or

(b) does not admit of compensation in money;

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he is not entitled to obtain a decree for specific performance;

but the court may, at the suit of the other party, direct the party

in default to perform specifically so much of his part of the

contract as he can perform, if the other party—

(i) in a case falling under clause (a), pays or has

paid the agreed consideration for the whole of the

contract reduced by the consideration for the part which

must be left unperformed and in a case falling under

clause (b) 2 [pays or has paid] the consideration for the

whole of the contract without any abatement; and

(ii) in either case, relinquishes all claims to the

performance of the remaining part of the contract and all

right to compensation, either for the deficiency or for the

loss or damage sustained by him through the default of

the defendant.

(4) When a part of a contract which, taken by itself, can

and ought to be specifically performed, stands on a separate

and independent footing from another part of the same contract

which cannot or ought not to be specifically performed, the

court may direct specific performance of the former part.

Explanation.—For the purposes of this section, a party

to a contract shall be deemed to be unable to perform the whole

of his part of it if a portion of its subject-matter existing at the

date of the contract has ceased to exist at the time of its

performance.”

18.Even to enforce a part of the contract, the plaintiff has to relinquish

all his claims to the performance of the remaining part of the contract and all

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right to compensation, either for the deficiency or for the loss or damage

sustained by him through the default of the defendant. In the entire plaint,

absolutely, there is no pleading, whatsoever, with regard to the

relinquishment in respect of the remaining part of the contract. It is further

to be noted that, admittedly, the plaintiff is also aware of the fact that the 2

nd

defendant is also having equal share in the property. The agreement itself

indicates that the execution of sale has to be done not only by the 1

st

defendant, but also his legal heir. The plaint averments clearly show that the

2

nd

defendant is also having half share in the property and since she was in

America at the relevant point of time, the 1

st

defendant assured the plaintiff

that the 2

nd

defendant will also join in execution. Having pleaded so and

made the 2

nd

defendant as a party to the suit, later, the 2

nd

defendant has been

removed from the array of the parties mainly on the ground that the suit for

partition filed by the 2

nd

defendant as against her father, not only with regard

to the suit properties but also the other properties, was subsequently

withdrawn by her. To substantiate the said fact, Exs.A7, A8 and A9 are also

placed. On a perusal of Ex.A8 (memo), it is clear that the 2

nd

defendant, in

fact, has given up her right only in respect of the properties already sold by

her father, whereas in respect of the suit property, she is not insisting for

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partition for the present. Therefore, merely because she has not insisted for

partition for the present, it cannot be said that she has lost her right in the

entire property. Therefore, once it is admitted that the 2

nd

defendant also has

a half share in the entire property, the 1

st

defendant has no title to the entire

properties. Hence, the relief of specific performance cannot be granted in

respect of the share of the 2

nd

defendant. Even assuming that the 1

st

defendant has agreed to sell the immovable property in respect of the 2

nd

defendant’s share, for which he has no right or title, when a person intends to

enforce such contract, he should have made the 2

nd

defendant also a party to

the suit in order to compel the 1

st

defendant to procure the concurrence of the

2

nd

defendant as per Section 13 of the Specific Relief Act, 1963. Having

made the 2

nd

defendant as a party initially and having removed her later from

the array of parties, now, the plaintiff cannot seek specific performance of

the agreement, particularly when the 2

nd

defendant is not a party to the

agreement. Accordingly, Point Nos.(2) and (3) are answered against the

plaintiff.

19.In view of the above discussion, the trial Court granting specific

performance to enforce the contract in respect of the lesser extent of the

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land, in our view, is not proper.

20.It is an admitted fact that the 1

st

defendant has already received a

sum of Rs.20,00,000/- from the plaintiff. It is relevant to note that, when

this appeal came up for admission before this Court, this Court has passed

the following order on 26.10.2015.

“On 05.10.2015, we have passed the following orders :

“Caveator is on record.

2.Mr.D.Vivekanandan, learned counsel for the

appellant/Petitioner/1st defendant fairly submitted that as

per decree in O.S.No.39 of 2010 on the file of the learned

Principal District Judge, Krishnagiri, dated 06.01.2015,

a sum of Rs.20,00,000/- has already been received from

the respondents/plaintiffs/decree holder. He further

submitted that if two weeks time is given from today, he

would produce a Demand Draft for Rs.20,00,000/-

received as advance towards the alleged performance of

contract dated 25.07.2010 with interest @ 7.5% per

annum, from the date of 15.08.2010, the first date on

which he received the part of the advance amount.

Post on 26.10.2015.”

2.Mr.S.Vijayaragavan, learned counsel for the appellant

submitted that as assured on 05.10.2015, a Demand Draft

No.040925 dated 31.02.2015 has been taken from Indian Bank,

Bargur Branch, for Rs.27,82,676/- in favour of Mr.G.Vijayan,

the 1

st

respondent, being the advance amount of Rs.20,00,000/-

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with interest @ 7.5% per annum from 15.08.2010, the first date

on which the appellant has received the amount and that the

same is produced before this Court.

3.Mr.SNJ.Hariharan, Junior counsel attached to the

office of Mr.V.Nicholas, the learned counsel for the 1

st

respondent, has acknowledged the Demand Draft dated

31.02.2015 drawn in the name of Mr.G.Vijayan, the respondent

herein. He has also made an endorsement in the Memorandum

of Grounds of first appeal.

Having regard to the compliance of the order dated

05.10.2015, there shall be a Stay of execution of decree in

O.S.No.39 of 2010 on the file of the learned Principal District

Judge, Krishnagiri, till the disposal of the appeal.”

21.The above order makes it clear that the plaintiff/1

st

respondent

herein has received back the entire amount of Rs.20,00,000/- along with

interest at the rate of 7.5% per annum without any demur or protest. This

conduct of the plaintiff also indicates that he is not intended to purchase the

property. This is also one of the reasons why we are not inclined to hold that

the plaintiff is entitled to specific performance.

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22.However, taking note of the fact that only an interest @ 7.5% p.a.

has been paid till 2015 for a huge amount of Rs.20,00,000/-, we are of the

view that, to advance substantial justice to the parties, atleast interest @ 12%

p.a. has to be calculated from the date of payment of advance amount of

Rs.20,00,000/- in the year 2010 till the entire amount is repaid to the

plaintiff. To balance both sides, we are of the view that the appellant/1

st

defendant can be directed to pay a further sum of Rs.10,00,000/- to give a

quietus to the entire issue, for which, the learned counsel for the appellant

submitted that, if the Court directs so, the appellant/1

st

defendant will pay the

amount and he sought eight weeks’ time to pay the said amount of

Rs.10,00,000/-. Acceding to the request of the learned counsel for the

appellant, we direct the appellant/1

st

defendant to pay a further sum of

Rs.10,00,000/- (Rupees Ten Lakhs only) to the 1

st

respondent/plaintiff in

addition to the amount already paid, within a period of eight weeks from

today. It is made clear that, till the amount as ordered by us is paid, there

shall be a charge over the property for that amount. The moment the entire

amount is paid within time, the charge shall stand released automatically.

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23.With the above directions, this Appeal is allowed and the decree

and judgment of the trial Court granting specific performance, is set aside.

However, considering the nature of litigation, no cost is ordered.

Consequently, connected miscellaneous petition is closed.

24.At this juncture, the learned counsel for the 1

st

respondent/plaintiff

would submit that, pursuant to the decree and judgment of the trial Court

granting specific performance, the plaintiff has deposited a sum of

Rs.28,06,750/- towards the remaining sale consideration before the trial

Court. In such view of the matter, as the decree of specific performance is

set aside, the 1

st

respondent/plaintiff is entitled to receive back his deposit

made before the trial Court. Therefore, the trial Court shall refund the

amount deposited by the 1

st

respondent/plaintiff in O.S.No.39 of 2012

towards balance sale consideration, on making proper application, along

with accrued interest, if any thereon, without any further delay.

(N.S.K., J.) (R.S.V., J.)

05.01.2026

mkn

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A.S.No.820 of 2015

Internet : Yes

Index : Yes / No

Speaking Order / Nonspeaking order

Neutral Citation : Yes

To

1.The Principal District Judge,

Krishnagiri.

2.The Section Officer,

VR Section,

High Court, Madras.

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A.S.No.820 of 2015

N. SATHISH KUMAR, J.

and

R. SAKTHIVEL, J.

mkn

A.S.No.820 of 2015

05.01.2026

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