ADIMAKUTTY HYDU ALI OF PALLIYAKATHU Vs. AMBUJAM

JUDGEMENT

(1.) Plaintiff is the appellant. Suit was instituted for specific performance of an agreement dated 5.2.1978 by which an extent of 7 acres and 92 cents of property was agreed to be sold to plaintiff by defendants 1 and 4. Trial Court decreed suit as against defendants 1, 2 and 4 and directed execution of a sale deed regarding the suit property so far as their shares are concerned. It was ordered that the plaintiff need only to pay 3/4th of the price agreed for the suit property as defendants 1, 2 and 4 are competent to convey only 3/4 of the total extent available. As far as third defendant is concerned no relief was granted. First defendant took up the matter in appeal, A.S.224/87. Appeal was allowed and judgment of the Trial Court was set aside. Decree was granted to the plaintiff as against defendants 1, 2 and 4 for return of the amount paid by the plaintiff with 12% interest per annum from the respective dates of payment till realization. Aggrieved by the same the plaintiff has come up with this AFA.

(2.) Counsel on either side argued elaborately with regard to the validity or otherwise of Ext.A2 agreement dated 5.2.1978. Both the Trial Court as well as learned single Judge found that plaintiff has succeeded in proving execution of the agreement A2 by defendants 1, 2 and 4. Trial Court proceeded as if there was a valid agreement between the parties. Learned single Judge however declined jurisdiction under S.20 of the Specific Relief Act basically on the ground that it should not be allowed to be specifically performed in a suit instituted on 2.9.1981 for the reason that it can reasonably be inferred that the contract is not alive either because of a waiver of the right of the plaintiff or abandonment of the contract. Counsel appearing for the plaintiff appellant attacked the above finding of the learned single Judge. Counsel contended that time was not the essence of the contract and time was extended at the request of the defendants. Further counsel also contended that plaintiff was always ready to perform his part of the contract, which was so found by the Trial Court. Counsel also submitted learned single Judge did not disturb those findings but declined relief to plaintiff on the ground of abandonment and waiver. Counsel referred to several decisions of the Apex Court as well as this Court to contend that there is no waiver or abandonment. In the facts and circumstances of the case we feel there is no necessity of referring to those decisions for disposal of this matter. We are only concerned with the question as to whether this Court in the facts and circumstances of the case could exercise the discretion in declining relief of specific performance. The Supreme Court in Gobind Ram v. Gian Chand ( 2000 (7) SCC 548 ) held that it is the settled position of law that grant of a decree for specific performance of contract is not automatic and is one of discretion of the Court and the Court has to consider whether it will be fair, just and equitable to grant a decree for specific performance. Court is guided by principle of justice, equity and good conscience. Reference may also be made to the decision of the Apex Court in P.V. Josephs Son Mathew v. Nedumbra Kuruvilas Son, (1987 Supp. SCC 340).

(3.) Facts would reveal that the first defendant is a widow, second defendant is the son of the first defendant and defendants 3 and 4 are daughters of the first defendant. Admittedly, defendants 2, 3 and 4 are deaf and dumb. Subject matter of the suit is 7 acres and 92 cents of property situated in North Parur. Price of land agreed upon was Rs.38.50 per cent. Total consideration approximately would come to Rs.28,457/-. Even Rs.38.50 per cent at Parur in the year 1978 is on the lower side though cannot be compared with the land value in the year 2003. Widow and her children who are deaf and dumb are the owners of the property and are still in possession of the property. The question is whether they should be divested of the property at this distance of time. Trial Court decreed the suit as against defendants 1, 2 and 4 and found third defendant had not signed in the request for extension of time and no relief has been granted as against the third defendant. Written statement filed by the first defendant widow would indicate that she had received certain amounts from the plaintiff on various dates. But she has raised a contention that plaintiff was not ready and willing to execute the document and the period was extended not with the volition of her and defendants 2 to 4. In fact first defendant has also got a case that she has never agreed to extend the period of agreement. Defendants 2 and 4 filed a joint written statement stating that they had not signed the agreement out of their own free will. Their mother first defendant wanted to get some amount representing that fact those defendants were made to sign a document. The nature and contents of the document were not disclosed to them. It was also not read over to them. Before the Trial Court first defendant got himself examined as DW1 and the wife of the second defendant got herself examined as DW2. We find during chief examination of DW1 she has denied the signature of defendants 2 to 4 in Ext.A2 agreement. No steps have been taken by the plaintiff to prove the signature of defendants 2 to 4 who are deaf and dumb. The Trial Court has made its own comparison and took the view that it is the signature of defendants 2 to 4. Trial Court held the mere fact that defendants 2 to 4 are deaf and dumb did not absolve them from their liability. DW2 has admitted that they can be convinced of any matter by gestures and in fact the defendants had understood the implications of Ext.A2 agreement. We are of the view when defendants 2 to 4 have specifically denied signature the plaintiff ought to have taken steps to prove that they have put their signatures through an expert. The fact that defendants 2 to 4 are deaf and dumb persons is a relevant factor which should have been taken note of by the court. They have specifically stated in their written statement that they were made to sign some document and they are unaware of the nature and contents of the documents. According to them, the fact that their property was sold away to the plaintiff was unknown to the defendants 2 to 4. We are of the view there is no sufficient evidence in this case to show otherwise and to pass a decree against defendants 2 to 4 who are deaf and dumb persons. First defendant is also a widow. They are all situated in a disadvantageous position being a widow as well as children deaf and dumb. Counsel appearing for the plaintiff submitted this Court shall not be carried away by the fact that defendants 2 to 4 are deaf and dumb persons, but be confined to the legality of the transaction. We are of the view when the defendants are deaf and dumb the court must be very cautious. In our view this is an eminently fit case for any court to exercise discretion declining relief to the plaintiff under S.20 of the Specific Relief Act. The Apex Court in K. Narendra v. Riviera Apartments (P) Ltd. ( AIR 1999 SC 2309 ) held that the jurisdiction under S.20 of the Specific Relief Act, 1963 to decree specific performance is discretionary and the court is not bound to grant such relief merely because it is lawful to do so; the discretion of the court is not arbitrary but sound and reasonable, guided by judicial principles and capable of correction by a court of appeal. Performance of the contract involving some hardship on the defendant which he did not foresee while nonperformance in involving no such hardship on the plaintiff, is one of the circumstances in which the court may properly exercise discretion not to decree specific performance. Apex Court in Nirmala Anand v. Advent Corp. (P) Ltd., ( 2002 (5) SCC 481 ), held that specific performance being an equitable relief balance of equities have also to be struck taking into account all these relevant aspects of the matter, including the lapses which occurred and parties respectively responsible therefore. Before decreeing specific performance, it is obligatory for courts to consider whether by doing so any unfair advantage would result for the plaintiff over the defendant, the extent of hardship that may be caused to the defendant and if it would render such enforcement inequitable, besides taking into consideration the totality of circumstances of each case. We are of the view considering the totality of the circumstances of the case it would be inequitable to grant a decree as against the widow and other defendants who are deaf and dumb persons. The hardship that may be caused to them is much more than what the hardship that would be caused to the plaintiff. We are of the view in the facts and circumstances of the case plaintiff should be satisfied with the decree for the amount he had advanced with reasonable interest. It is too harsh for him to insist for a decree of specific performance against defendants in the facts and circumstances of the case. We therefore find no reason to interfere with the judgment of the learned single Judge in exercising the discretion in favour of the defendants.