TMI Blog1987 (9) TMI 423X X X X Extracts X X X X X X X X Extracts X X X X ..... ttiar for ₹ 24,500/-. Chettiar paid ₹ 5,500/- as advance on the date of agreement and undertook to pay the balance upon executing the sale deed. The sale deed was to be executed within two months from the date of agreement. The deed, however, was not executed and the matter was dragged on by correspondence between the parties. On December 22, 1963 Sait died leaving behind his wife Sulekha Bai and some minor children. In the neighbouring estate there was a lady Doctor P.W. 2. Mathew is her brother. Kuruvila is her husband. Varghese is her father-in-law. The first three appeared to have contacted Sulekha Bai and also took some steps to purchase the estate. Chettiar was not unaware of their efforts and transactions which we will pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tes that the legal representatives of Sait have sold the estate to Mathew who was fully aware of the agreement for sale Ex. A1. It further states that Mathew contacted Chettiar for the purpose of ascertaining the nature of the agreement and other details regarding the estate. 4.On March 29, 1966 Varghese armed with the deed of assignment Ex A24 alongwith Chettiar instituted O.S. No. 41 of 1966 for specific performance of the agreement Ex. A1. The suit was instituted against Mathew and legal representatives of Sait. The alternate relief claimed in the suit was for refund of the advance of ₹ 5,500/- paid under Ex. A1 with interest thereon and damages for breach of the agreement. That is not all. On October 18, 1967 Kuruvila institute ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s death the minority of his Children and the Execution of Ex B43 and Ex. B44 by Sulekha Bai to Mathew had created obstacles in the way of completing the sale. The assignment deed Ex. A24 was valid and the rights under Ex. A1 were assignable in law. The Court then observed that Mathew was originally a harmless photographer at a distant place. The estate was thrust upon him by his sister P.W 2 and her husband. Mathew was put in possession by Virtue of Ex B43, Ex B44 and Ex B8. Since then, he effected improvements with heavy investment. Considering these and other circumstances particularly the conduct of parties, the Court concluded that it would be just and fair to all parties concerned if Varghese was given refund of ₹ 5.500/- paid by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ormance granted in O.S. No. 41 of 1966. 9. Mr. S. Padmanabhan learned Counsel for the appellant urged that the events indicate that Chettiar had waived his rights under Ex. A1 and Varghese as an assignee could not get a better right. He also urged that in view of the stand taken by Varghese in O.S. No. 119 of 1967, there cannot be a decree for specific performance. Mr. G. Vishwanath Iyer, learned Counsel for the respondent while supporting the judgment of the High Court referred to us the various aspects of the matter. 10. It seems to us that contentions of Mr. Padmanabhan deserve to be accepted. The High Court appears to have missed the crux of the matter. It is not in dispute that Kuruvila, his wife and brother-in-law were moving ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... agreement with the plaintiff in the name of 1st defendant were got executed. Then he said: This defendant did not oppose the contentions made in the plaint. He also admits them. This defendant has no objection in deciding O.S. No. 41 of 1966 as per the decision of this case. 12. What do these averments mean? They are suggestive of the fact that Ex. B43 and Ex. B44 were executed with a view to close the transaction with Chettiar. Those deeds in the name of Mathew would serve as a source of strength for closing the transaction with Chettiar. Those averments also impliedly suggest that Ex. B43 and Ex. B44 were not obtained to defraud Chettiar from his legitimate rights, if any, under Ex. A1. In this context, the case of Varghese put f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shiki Kaisha. It is not possible or desirable to lay down the circumstances under which a Court can exercise its discretion against the plaintiff. But they must be such that the representation by or the conduct or neglect of the plaintiff is directly responsible in inducing the defendant to change his position to his prejudice or such as to bring about a situation when it would be inequitable to give him such a relief. 14. Section 20 of the Specific Relief Act, 1963 preserves judicial discretion to Courts as to decreeing specific performance. The Court should meticulously consider all facts and circumstances of the case. The Court is not bound to grant specific performance merely because it is lawful to do so. The motive behind the litig ..... X X X X Extracts X X X X X X X X Extracts X X X X
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