Once Party Enters Agreement To Convey Property, It Cannot Take Defence Of 'Defective Title' In Suit For Specific Performance: Kerala High Court

Justice Sathish Ninan held,

“Having entered into an agreement to convey the same, it is not open for him to defend the claim for specific performance contending that he does not have a conveyable title. It is for the purchaser to opt whether he is willing to take whatever right the vendor has.”

The dispute is relating to an agreement entered between the parties. As per the agreement, the defendant agreed to convey some property to the plaintiff for sale consideration of thirty lakhs fifty thousand rupees within four months.

According to the plaintiff, he paid a total of twenty lakhs twenty five thousand rupees and was put in part possession of the property. The plaintiff filed the suit claiming that the defendant is evading specific performance of the agreement. The defendant has also filed a cross suit for getting back the possession of the part of the property.

Defendant admitted the agreement and said that only twenty lakhs was received as advance amount. He stated that the plaintiff was not ready and willing to perform the agreement. It is also stated that the description of the property that was agreed to be conveyed was incorrectly shown in the plaint. The defendant further submitted that the land agreed to be conveyed is not conveyable and there is prohibition in transacting it.

The trial court declined the prayer for specific performance and granted the alternate prayer for return of advance sale consideration. It is challenging the order of the trial court that the appeals were filed before the High Court. Both the appeals were heard and disposed together.

The court considered the contention of the defendant that he does not have sufficient title to convey the land that he agreed to sell under the agreement. The High Court held that in a suit for specific performance, once there is an agreement to sell, later the vendor cannot put forth a defence saying that he has no title or that his title is defective.

The Court referred to a decision of the full bench of the Madras High Court in Baluswami Aiyar v. Lakshmana Aiyar & Ors., AIR 1921 Mad 172 and various other decisions to state that the defendant-vendor cannot take the defence that he had no title or defective title. The Court observed thus: “Therefore, the defendant-vendor cannot challenge the claim for specific performance on the plea of defective title or absence of title”.

Another pertinent issue before the Court was the extent of the property that was agreed to be conveyed by the agreement between the parties. The Court observed that there is difference in the extent of property which is agreed to be conveyed under the agreement and the land that is sought by the plaintiff for specific performance. The court in this regard notes thus:

“A suit for specific performance is to specifically enforce the contract entered into. The plaintiff cannot seek enforcement in respect of the property or terms at variance from that agreed to. Here, what the plaintiff has sought for is a decree in respect of a property which is not agreed to be conveyed under Ext.A1. Therefore, the plaintiff is not entitled for a decree for specific performance.”

Based on the evidence adduced, the Court noted that the plaintiff was willing to pay the balance amount and perform the agreement only if the defendant agreed to convey more property than what was mentioned in the agreement between the parties. This adjacent property was sought by the plaintiff for widening the way leading to the property mentioned under the agreement. There was also ambiguity in the extent of the property that was sought by the plaintiff from the defendant for the performance of the agreement. “When there is ambiguity regarding the extent there could not be a relief for specific performance. The property must be certain and definite (See Nahar Singh v. Harnak Singh and Ors, 1996 6 SCC 699, Vimlesh Kumari Kulshretha v. Sambhajirao and Ors., (2008) 5 SCC 58, Sreekumar M.K. v. Ramadasan and Ors., 2017 (3) KLJ 798),” Court said.

The Court noted that the plaintiff was not ready and willing to perform the agreement entered between them. Without agreeing to convey more property as claimed by the plaintiff, he was not willing to go ahead with the agreement, the Court stated. Thus, the Court found that non-performance of the agreement is due to the fault of the plaintiff.

The High Court dismissed the appeals and found that the trial court had correctly declined the order of specific performance and granted a decree for return of the advance sale consideration.

Case Title: P.K.Abdul Salam v. Abdul Jabbar (Deceased)

Citation: 2023 LiveLaw (Ker) 372

Case Number: RFA 594/2012 and RFA 600/2012)

Counsel for the plaintiff: Sri. K.V. Sohan

Counsel for the defendant:  Sanjeetha K.A.