ARJUNA MUDALIAR Vs. LAKSHMI AMMAL AND ORS.

JUDGEMENT

(1.) THE plaintiff is the appellant. He and his deceased brother, one Ramaswami Mudali, and the latter as the guardian of his minor son the third defendant, sold the suit properties to the second defendant on 9th January, 1920, by registered sale deed Ex. D. 1, for a sum of Rs. 300. On the same day, the second defendant and his wife, the first defendant, executed in favour of the vendors an agreement, Ex. P -1, agreeing to reconvey the properties on the vendors paying on any day the principal of Rs. 300, the sale price, and interest accrued on it at the rate of Re. 1 per Rs. 100 per mensem. Ramaswami Mudali died, and defendants 3 and 4 are his sons and the fifth defendant is his widow. The plaintiff instituted the suit out of which this appeal arises in the Court of the District Munsiff of Ami on 4th September, 1942, claiming one of two alternative reliefs. His first claim was on the basis that the sale deed and the agreement to reconvey formed part of the same transaction, and together amounted in law to a mortgage by conditional sale. On this footing, he claimed redemption. In the alternative, he claimed specific performance of the agreement to reconvey. The contesting defendants 1 and 2 denied that the transaction amounted to a mortgage and pleaded that the suit was barred by limitation because the agreement was sought to be enforced after the expiry of a reasonable time. The plaintiff alleged that in calculating the amount payable to the defendants he would be entitled to the benefits of Madras Act IV of 1938, but the defendants denied that he was so entitled.

(2.) THE learned District Munsiff of Arni who tried the suit dismissed it. He held that as the agreement to reconvey was unregistered it cannot in any way affect in law the registered conveyance and the two together could not amount to a mortgage by conditional sale. He further held that the relief of specific performance could not be granted as there was no averment by the plaintiff of his willingness to perform his part of the contract and also because of his laches, as the transaction was so far back as 1920. The plaintiff appealed to the Subordinate Judge of Vellore who concurred with the District Munsiff in dismissing the suit but on a ground different from the grounds on which the District Munsiff based his decision. The learned Subordinate Judge held that the plaintiff would not be disentitled to the relief of specific performance because of delay but because one of the parties to the agreement to reconvey, namely, the present third defendant, was not joined as a plaintiff; and as he did not also pray for specific performance, the plaintiff alone would not be entitled to a decree. The plaintiff again appealed to this Court in S.A. No. 284 of 194.6. Chandrasekhara Aiyar, J., agreed with the lower Courts in dismissing the plaintiff's suit, but not exactly on the ground on which the learned Subordinate Judge negatived the plaintiff's claim. The learned Judge held that the plaintiff was not entitled to specific performance because he had not expressed his readiness and willingness to perform his part of the contract when such an averment was the foundation for an action for specific performance and also because there had been a long and unreasonable delay in enforcing the claim, and it would be inequitable to grant a decree for specific performance after the lapse of 22 years.

(3.) UNDOUBTEDLY , in a suit for specific per romance the plaintiff has to allege that he is ready and willing to perform his part of the contract. But we do not agree with the learned Judge that it is difficult to spell out such an averment from the plaint. It is true that he raised various pleas as regards the amount rightly payable to the contesting defendants 1 and 2, but finally in paragraph 16 he stated this: