THAILAMMAL AND ORS. Vs. ANGAMMAL

JUDGEMENT

(1.) THESE second appeals arise out of a suit for specific performance of an agreement to sell immovable property, and of these, Second Appeal No. 453 of 1965 by the defendants is directed against the decision of the Courts below granting the plaintiff a decree under Section 15 of the Specific Relief Act (I of 1877), the defendants having been directed to execute a sale deed in favour of the plaintiff in respect of a half share in the suit property for the full consideration of Rs. 5,450 covenanted for sale of the entirety of the property. If these second appeals have to be disposed of by reference only to the grounds of second appeal, they may be dismissed straight -away as the substantial grounds of appeal do not raise any question of law. Mr. R. Kesava Ayangar, learned senior Counsel appearing for the appellants, has raised a question of law at the time of arguments, and the excuse for entertaining it at this stage is that to an extent it is rested on the fact of presentation by the plaintiff of Second Appeal No. 1216 of 1965 from the same decree. After the second appeals had become part -heard Counsel appearing for the appellants in Second Appeal No. 1216 of 1965 has applied for leave to withdraw that second appeal and also filed petition Civil Miscellaneous Petition No. 13825 of 1967 with an affidavit in support thereof praying for withdrawal of the second appeal. I shall be adverting to this aspect of the matter later.

(2.) THE property, the subject of these proceedings was owned as joint family property by one Marimuthu Mudali and his son Vinayatha Mudali. Marimuthu Mudali died in 1950 leaving himself surviving his widow, the first defendant in the suit, and his son, the said Vinayatha Mudali. On 6th April, 1960, Vinayatha Mudali entered into the agreement Exhibit A -1 with the plaintiff for the sale to him of the suit property for a consideration of Rs. 5,450 and received in part payment of the consideration a sum of Rs. 2,000. The receipt of Rs. 2,000 is evidenced by a promissory note Exhibit A -2, dated 6th April, 1960. Vinayatha Mudali died on 25th May, 1960, and defendants 2 and 3 are persons who claim to have purchased the entirety of the suit property under a sale deed Exhibit B -2, dated 17th November, 1961 for a consideration of Rs. 9,000 from the first defendant. The suit by the plaintiff for specific performance was filed on nth December, 1961. It is the case of the plaintiff that the first defendant is the only heir of Vinayatha Mudali, and that when required by the plaintiff to receive the balance of purchase price and execute a sale deed, the first defendant was evading the execution of a sale deed and eventually brought out a sham and nominal sale deed in favour of defendants 2 and 3. Notices have been exchanged between the parties. The defendants would deny the truth, genuineness and validity of the agreement for sale relied upon by the plaintiff, and it is their further plea that the deceased Vinayatha Mudali was entitled only to a half share in the property. In the plaint inter alia it was averred that the plea that the deceased Vinayatha Mudali was entitled only to a half share was false, and even if it was so, the plaintiff would be entitled to specific performance in respect of the right, title and share of Vinayatha Mudali. It was specifically stated in the plaint that the plaintiff was always ready and willing to perform her part of the contract, and that she was willing to deposit the balance of purchase price and also the requisite money for the purchase of stamp papers and registration. Of the issues framed for trial, the following issues indicate the scope and extent of the defence.

(3.) HAVING regard to the character of the findings on the merits of the case, naturally learned Counsel for the appellants could not require this Court in second appeal to review the evidence and take a different view. The findings are one of fact based on relevant and material evidence. Of course for the appellants certain improbabilities as to the truth of the agreement Exhibit A -1 were mentioned. The failure of the plaintiff to refer to this agreement in another suit which had been instituted by defendants 2 and 3 against the plaintiff and her husband was commented upon as improbabilising the existence of the agreement. This aspect has been considered by the Courts below and the explanation submitted for the plaintiff was accepted. Mr. Kesava Ayyangar, learned Counsel for the appellants rests the appeal on the contention that the Courts below erred in law in granting the plaintiff relief under Section 15 of the Specific Relief Act. It is contended that under Section 15 the plaintiff has to elect to accept conveyance of part of the property on payment of the consideration agreed for the whole relinquishing all claims to further performance and all right to compensation either for the deficiency or for the loss or damage sustained by him through the default of the defendant. It is said that an option is given to the plaintiff to accept part of the property as full performance of the contract, and it is argued that in this case on the trial Court passing a decree granting relief under Section 15 of the Act, the plaintiff without accepting it, giving up further prosecution and seeking further enforcement of the agreement, preferred an appeal claiming a decree for conveyance of the entire property. It is said that thereby the plaintiff had declined the option given to her under the section and having elected to stand by her claim for the entirety of the property, she had forfeited all claims to equity for a decree under Section 15. The option under Section 15, not having been availed of, it is said that Section 17 of the Act operated and the Court cannot, therefore, direct specific performance of a part of the contract. Section 17 prohibits a decree for specific performance of a part of contract except in cases coming under Sections 14, 15, and 16. Section 14 and Section 16 are not applicable to the present case. It is argued for the appellant that even now notwithstanding the failure in the lower appellate Court the plaintiff has come up to this Court in second appeal filing Second Appeal No. 1216 of 1965 and asserting claim for conveyance of the entirety of the property. The argument is that specific performance is an equitable remedy and the plaintiff was bound to elect whether she would be satisfied with the performance in part. But here the plaintiff was seeking further performance based on untenable grounds. In the circumstances it is said that she should be deprived of the equitable relief which has been granted to her by the Courts below. As stated at the outset, the plaintiff to avoid this argument in the course of arguments, sought the permission of this Court to withdraw Second Appeal No. 1216 of 1965. In the affidavit in support of a petition for withdrawal the plaintiff stated that she was content with the decree of the Courts below holding that she was entitled to specific performance of a half share in the suit property, and that she relinquished all her claims to further performance and all right to compensation either for deficiency or for the loss or damage sustained by her. The defendants have filed a counter affidavit urging inter alia that there was no alternative prayer even in the plaint. But it is the right and privilege of an appellant whether or not to prosecute his appeal and all that the respondent in such a case could claim is that he must be given his costs. When the appellant chooses not to press the appeal, it has to be dismissed. The question whether the presentation of the second appeal disentitles the plaintiff to relief under Section 15, is a different matter.