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TMI Blog1995 (4) TMI 295X X X X Extracts X X X X X X X X Extracts X X X X ..... hether in view of the aforesaid assignment, a decree for specific relief is still called for, keeping in view the fact that such a relief is discretionary. 2. We may note relevant facts. These are that the original plaintiff, SV Ramakrishna Mudaliar, was a man of means at one point of time, to run into rough weather, which required mortgage of some of his properties. It is to repay the mortgage debt that the plaintiff sold two of his properties ostensibly to Mrs. Rajabu Fathima Buhari (Mrs. Buhari) described in Schedules 'A' and 'B' of the plaint. The sale deeds in respect of these properties were executed on 26.3.59 (Ex.P 2) and 31.3.59 (Ex.P.3); both were, however, registered on 31.3.1959. The plaintiff's case is that before these properties had been sold there was a 'gentleman's understanding' between him and Mr. Buhari, husband of Mrs Buhari, on 24.3.59 that in case the purchase amounts as per the sale deeds were repaid within three years, the properties would be reconveyed, when in addition to sale price, 10% thereof shall be paid as solatium of the actual amount spent on improvement, if any. This understanding was put in writing subsequently ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ied about there being credible evidence in this regard. It may be mentioned that when the trial began, another signatory to P.1, Shri VS Rangachari, who had played prominent part throughout, having died was not available for examination. The only other signatory to Ex.P. 1 is aforesaid Kamal, who could not be examined by the trial Judge even as a Court witness. 5. Shri Vaidyanathan, learned counsel representing Mrs. Buhari, has, apart from mentioning about silence of Exs.P.2, 3 and 15 relating to any agreement of reconveyance, urged that the evidence adduced in the case by the plaintiff would itself show that P. 1 had not seen the light of the day on 24.3.59. The basic submission in this regard is that his document was described by PW 1 Narayana in his evidence as 'letter'. We do not think if we should go by labels, because even if it was a letter which came into existence that shows that something in writing had been put on record; and it may because of this that P. 1 was described as 'record of fact' and it being on a letterhead of the plain- tiff, might have loosely described as letter of PW 1. 6. As to why in Exs.P.2,3 and 15 no mention was made about P. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nged about the understanding in question after the death of Rangachari. 9. According to us, therefore, it would not be correct to doubt the existence of P. 1 because of non-mentioning about any stipulation to reconvey in Exs. P2 and 3 and for that matter for Ex.P. 15 having not mentioned about it- nor do the questions raised by Shri Salve take away the ring of ,truth, the plaintiff's case has in this regard. So, we hold that P. 1 is a genuine document, as opined by the trial Judge. WHETHER KAMAL WAS AN AGENT OF THE DEFENDANTS 10.We come to the role played by Kamal. According to the plaintiff full name of Kamal who had signed Ex.P1 is MH. Kamal, son of MS Mohammed Hasan, who at the relevant time was residing at Nos.5/ and 58, 3rd Main Road, Gandhi Nagar. As per the second defendant, who alone appeared in the witness box, there were many Kamals in his employment and the signature appearing in P. 1 is not MH Kamal, who at some point of time was in employment of the defendants. 11.The trial Judge has dealt with this aspect in detail and to find out the truth as to whether ME Kamal has signed PI, he even wanted to examine this Kamal as a court witness; but, according to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is not right, but when it is shown to be wrong, as observed by three-Judge Bench of this Court in Dollar Co. v. Collector of Madras, 1975 Supp. SCR 403. As to this observation, the contention of Shri Vaidyanathan is that what was stated therein was meant to apply when this Court examines a matter under Article 136. We do not, however, think if this meaning can be ascribed to what was observed. 15.There is no need to pursue the legal principle, as we have no doubt in our mind that before reversing a finding of fact, the appellate court has to bear in mind the reasons ascribed by the trial court. This view of ours finds support from what was stated by the Privy Council in Rani Hemant Kumari v. Maharaja Jagadhindra Nath, 10 CWN 630, wherein, while regarding the appellate judgment of the High Court of Judicature at Fort William as careful and able , it was stated that it did not come to close quarters with the judgment which it reviews, and indeed never discusses or even alludes to the reasoning of the Subordinate Judge. 16.Shri Salve has taken pains to satisfy us that it is not quite correct to submit that the Division Bench did not take note of circumstantial evidence noted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Ibis property having been sold at ₹ 85,000, 10% of the same comes of ₹ 8,500/- and Ex.P. 1 5 evidences the sale at ₹ 95,000/-Though it is correct that ₹ 85,000/- and 10% of that comes to ₹ 93,500/-, it may as well be at this figure was rounded to ₹ 95,000/ In this context Shri Vaidyanathan's submission, however, is that 'Serles Garden' was sold back, not pursuant to the agreement to reconvey, but because Mrs. Buhari could not get a lessee despite advertisement having been put in 'The Hindu' and 'The Mail', as evidenced by Exs. D 1 to D4. Though this contention has some cutting edge, we were inclined to think, on the totality of facts, that the transfer of Serles Garden back to the plaintiff was in discharge of the legal obligation contained in P. 1, as both the period during which it was transferred and for the sum it was so done, fit in well with the terms embodied in P. 1. IS A CASE FOR SPECIFIC PERFORMANCE MADE OUT IN LAW? 19.Being satisfied that the parties had agreed as recorded in Ex.P 1, the question to be examined is whether the agreement of the type at hand, described as gentlemen's understanding i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... #39;s under- standing between Mr. S.V.R. and Mr. A.M. Buhari that Mr. Buhari will see to it that in case the purchase amounts as per the sale deeds in favour of Mrs. A.M.B. Buhari is repaid within 3 years from this date, the properties will be reconveyed to Mrs. S.V.R. who will also have to pay in addition to sale price 10 per cent thereof as solatium of the actual amount spent on improvement if any. 23. The aforesaid shows that though what has been recorded was described as gentlemen's understanding , according to us, the understanding was such which was meant to be acted upon. We have taken this view because terms and conditions of reconveyance have been clearly mentioned and document was executed by the agents of both the sides. It was, there- fore, intended to create legal obligation. In this context, Shri Parasaran has brought to our notice a decision of this Court rendered in Commissioner of Wealth Tax, Bhopal v. Abdul Hussain Mulla Mohammad Ali, (dead) by LRs., 1988 (3) SCC 562, in which after referring to the decision of the House of Lords in the aforesaid case and some other decisions, as well as what has been stated in legal treatise, it was observed in para 24 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d judicial statesmanship alone are the guiding facts. That this is the legal position is sought to be sus- tained by referring to sub-section (1) of section 20 of the Specific Relief Act, 1963, in which, it has been stated that the jurisdiction to decree the specific performance is discretionary, but the discretion is not arbitrary; it is sound and reasonable and is to be guided by judicial principles. As to when the court may not exercise discre- tion to grant the decree for specific performance has been mentioned in sub-section (2); whereas subsection (3) states as to when the court may properly exercise its discretion to decree specific performance. No doubt what has been stated in these two sub-sections is not exhaustive, but is illustrative, yet the intention of the legislature has been well reflected, both as regards the granting of the relief and nongranting of the same. Clause(c) of subsection (2) states that if granting of specific performance would make it inequitable , the court may not grant the relief It is this part of the statutory provision which is sought to be relied by the learned counsel for the respondents by contending that it would be inequitable to grant sp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fused; indeed, should be refused. In the present case, however, we find that the assignees themselves applied to this Court for impleading them as appellants and put on record the deeds of assignment, a perusal of which shows that the need for assignment was It for pressing reasons. There has been no hide an seek with the court and the legal representatives of the original plaintiff having received a sum of about ₹ 13 lacs pursuant to the contract of assignments entered between September to November '1988, we do not think if we would be justified in refusing the relief of specific performance, if the conduct of the respondents is also borne in mind, about which one could say that the same is tainted inasmuch as they departed from truth to bolster their case and went to the extent of not complying with the desire of the trial judge in allowing aforesaid Kamal to be examined even as a court witness. Such parties who pay foul with equity cannot be allowed to use the shield of equity to protect them. 30.The result of the foregoing discussions is that we allow the appeal, set aside the impugned judgment of the Letters Patent Bench and restore that of the trial Judge and dec ..... X X X X Extracts X X X X X X X X Extracts X X X X
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