C. Selvaraj (died) and Others vs The Corporation of Madras and Others

Srinivasan, J.—It is better to set out in the common the facts leading to the filing of the two writ petitions and the second appeal. We will

refer to the parties according to their ranks in the second appeal.

The dispute relates to door No. 124-F in Shenoy Nagar, Madras which originally belonged to the Corporation of Madras, (referred to

hereinafter as the first respondent). The first floor of the said building was allotted to the father of the second respondent by name P.C.

Sivanandam for occupation as a tenant on a monthly rent of Rs. 28. The allotment was made under R.D.C.No. 35928/50, dated 29.7.1950.

Asimilar allotment was made of the ground floor to the husband of the first appellant and father of appellants 2 to 5 by name C. Selvaraj under

R.D.C. No. 5/50, dated 29.7.1950 on a monthly rent of Rs. 28.

The father of the second respondent occupied the building on 15.8.1960, The exact date of occupation by Thiru Selvaraj is not available in the

records. But it is admitted by Thiru Selvaraj in his deposition in the suit out of which the second appeal arises that even when he went to occupy

the ground floor, the father of the second respondent was already residing there. By a communication under R.D.C. No. F5/12F/53, dated

5.1.1953, the first respondent made an offer to the father of the second respondent that there was a proposal to sell the entire building bearing

door No. 124-F to any one of the two tenants then occupying the building and the total approximate cost of the land and the building was Rs.

14,000. The tenant was asked to let the first respondent know within a week from the date of receipt of the said letter whether he desired to

purchase the premises on hire purchase system and the cost was said to be payable in 240 monthly equal instalments, interests calculated at 31/2%

p.a. A similar letter was sent to the husband of the first appellant on the same day under R.D.C. No. F5/1241/53. That letter is marked as Ex.A-2

in the suit. The father of the second respondent sent a reply on 12.1.1953 accepting the offer made by the first respondent and expressing his

willingness to pay the amount as it was specified therein. That letter is marked as Ex.B-6 in the suit. But there does not seem to have been any

reply whatever by the husband of the first appellant though in his deposition in the suit he claimed to have sent a reply. No copy of the reply has

been produced in this case; nor was the first respondent called upon to produce the original reply said to have been issued by him. As at present

there is no record to show that the first appellant''s husband accepted the offer contained in the letter dated 5.1.1953 and agreed to purchase the

entire house.

Though there was acceptance of the offer made by the first respondent by the father of the second respondent there was some difficulty in

concluding the sale transaction on account of certain litigations at the instance of the other parties. The Corporation''s council passed a resolution

on 7.8.1968 that the buildings need not be sold and they may be continued to let out on rental basis. Thereafter the State Government passed

G.O.Ms. No. 1981, dated 17.12.1979. As per the Government Order in supersession of the instructions issued earlier, the Government had

decided that the sale deed in favour of the first occupants of the remaining 9 ''F'' type houses could be executed as had been done earlier in the

case of 7 houses of that type in relaxation of the disposal of the immovable properties of Municipal Councils and Municipal Corporation issued in

G.O.Ms. No.730, Rural Development and Local Administration, dated 14.4.1976 and the Commissioner, Corporation of Madras was requested

to take immediate action in the matter and send a report to the Government. In other words, the Government order directed the Corporation to

execute sale deeds with reference to 9 buildings which still continued to be under the ownership of the Corporation just as the Corporation had

executed sale deeds in respect of seven houses earlier in favour of the first occupants of such houses. On that basis, the Corporation was bound to

execute a sale deed in favour of the father of the second respondent as he was the first occupant of the house bearing Door No. 124-F.

However, the validity of the Government Order was challenged by several persons in W.P.Nos. 641 and 836 of 1990,6160 to 6164 of 1981.

The husband of the first appellant, viz., Selvaraj was the petitioner in W.P. No. 6164 of 1981. A learned single Judge of this Court held that the

G.O. was not valid in view of the resolution passed by the Corporation'' s council on 7.8.1968 which continued to be in force and consequently

quashed the said G.O. There were three appeals in this Court viz., W. A.Nos. 222,473 and 483 of 1985. There was no appeal against the order

in W.P.No. 6164 of 1981, in which the husband of the first appellant had secured a writ quashing the Government Order. The appeals were heard

together by a Division Bench of this Court and by judgment dated 2.3.1989 they were allowed. The judgment of the learned Single Judge was set

aside. The validity of the Government Order was upheld by the Division Bench. The judgment of the Division Bench was challenged before the

Supreme Court by way of petitions for Special Leave. There were two petitions for Special Leave viz., 3856 and 3857 of 1989. They were

disposed of along with two applications for transfer viz., T.P.Nos.272 and 274 of 1989. It is seen from the xerox copy of the order of the

Supreme Court produced by learned Counsel for the second respondent, that Thiru Selvaraj, the husband of the first appellant was the second

petitioner therein while V. Narayanasamy who was the first respondent in W.A. No. 222 of 1985 was the first petitioner. The petitioners and the

respondents were represented by counsel. The petitions for special leave were dismissed on 2.5.1989, On the same day, the Transfer Petitions

were allowed to be withdrawn. Neither of the counsel is in a position to state clearly as to whether Selvaraj was a party to the SLP as such or

party to the transfer petition. But one thing is clear, that is, C. Selvaraj was a party to the proceedings before the Supreme Court.

Thereafter, the first respondent executed a sale deed on 10.5.1989 in favour of the second respondent herein and his brothers as before then,

his father Sivanandam had died. The second respondent as soon as his father died, entered into correspondence with the first respondent and

prayed for substitution of his name in the place of the name of his father and that was accepted by the first respondent. Consequently, the sale deed

was executed in favour of the second respondent and his brothers P.S. Ponnurangam and P.S. Mohanavelu. The sale deed sets out the history of

the transaction. It is better to set out that portion of the sale deed as the facts have been chronologically stated therein. It reads as follows:

Whereas the house and ground premises bearing Door No. 28-F (Old No. 124-F), 1st Main Road, West Shenoy Nagar, Madras-30 more fully

described in the schedule hereafter is the absolate property of the vendor herein; and whereas the said property and several other properties in the

said locality were originally belonging to the Corporation of Madras;

And whereas under a housing scheme framed by the Corporation of Madras under the name and style of Shenoy Nagar Housing Scheme the

Corporation constructed houses in the said areas and let out on rental basis (hire purchase system) and were allotted to under the sale scheme

agreeing to adjust the rentals paid by such occupants as Hire purchase Instalments for the said property;

And whereas in the course of such allotments the purchasers herein were also allotted a house property and were put in possession of the said

property more fully described in the schedule herein and by Letter No. R.D.C. No. F/5528050, dated 29.7.1950;

And whereas subsequent thereto in and by the letter of the Corporation of Madras, R.D.C.No. F5/124F/53, dated 5.1.1953 confirmed the sale

allotment of one ground and 1030 sq.ft. or thereabout and fixed the sale price at Rs. 13,231.00; And whereas in and by said letter the vendor was

granted permission to pay the said price in 240 monthly equated instalments with interest at 3 1/2% per annum by 20 years annuity basis; And

whereas the said offer was accepted to by the Purchasers;

And whereas in and by the said Letter R.D.C. No. S1/60, dated 4.6.1960 the Corporation of Madras made a fresh offer to the purchasers to

purchase the said property either by payment of the sale price in lumpsum or by annuity and the purchasers agreed to pay the annuity;

And whereas in terms of the proceedings vide their memo No. supra the vendor executed the sale deeds to 7 allottees and in the meanwhile the

Government vide their Memo No. 9149/A/M5/65-7 R.D., & L.A., dated 8.1.1968 banned the further sale of ''F'' type buildings and the

Corporation also passed a resolution in Ref. No.609 of 1968, dated 7.8.1968 to the effect that the remaining ''F''; type buildings should not be

sold; And whereas having aggrieved over the said ban the purchasers and other allottees made representations to the Government of Tamil Nadu

and in turn the Government of Tamil Nadu in their G.O.Ms. No. 1981, dated 17.12.1979 resolved that ""the Government in supercession of the

instructions issued Memo No. 941/M5/65-7, Rural Development and Local Administration dated 8.1.1968 have decided that the sale deed in

favour of the first occupants"" of the remaining 9 ''F'' type houses be executed as has been executed as has been done earlier in the case of 7

houses of this type in, relaxation of the ban on disposal of Immovable properties of Municipal Councils and Municipal Corporations issued in

G.O.Ms. No. 730, Rural Development and Local Administration, dated 14.4.1976;

And whereas the vendor was taking action to execute the orders in G.O.Ms. No.1981, dated 17.12.1979 and some of the allottees filed Writ

Petitions Nos.64 of 1980,6160 and 6461 of 1981 challenging the G.O.Ms. No. 1981 challenging the G.O.Ms. No. 1981, dated 17.12.1979

which was decided in their favour by a single Judge; And whereas Writ Appeal Nos. 222, 473 and 483 of 1985 were filed in the High Court of

Judicature at Madras, wherein their Lordships Mr. Justice Mohan, Officiating Chief Justice and Mr. Justice Venkataswamy set aside the order

passed by the single Judge and allowed and the G.O.Ms. No. 1981, dated 17.12.1979 was set at rest and thereafter the purchasers approached

the Corporation of Madras, the vendor, for execution of sale deed and the purchasers have already paid a sum of Rs. 1 1,375.00 (Rupees Eleven

thousand three hundred and seventy-five only) towards part payment; now they paid a sum of Rs. 7,253.80 (Rupees Seven thousand two hundred

and fifty-three and paise eighty only) being the balance amount, receipt of which sum the vendor doth hereby acknowledge being the entire cost of

the land and buildings and interest.

Soon after the disposal of the aforesaid petitions by the learned single Judge, the husband of the first appellant, filed W.P. No. 14964 of 1984.

The prayer in the writ petition is for issue of mandamus directing the first respondent to carry out the scheme of sale of flats on Hire Purchase as

promised in respect of the retraining 9 ''F'' type buildings bearing old No. 124-F, new No. 28 situate in Shenoy Nagar, on the basis of the original

allotment viz., sale to each person of the portion allotted to him respectively in so far as it relates to the petitioner. The only respondent to the writ

petition is the first respondent. The other tenant viz., Sivanandam or his son the second respondent is not impleaded in that writ petition as a party.

In the affidavit filed in support of the petition, a claim is made on the basis of the resolution passed by the Corporation Council on 7.8.1968 and

the declaration of the invalidity of the Government Order by the learned single Judge of this Court in writ petitions already referred to.

After the sale deed was executed by the first respondent as aforesaid on 10.5.1989 the Revenue Officer of the Corporation of Madras sent a

communication in R.D.C. No. S2/017-1064/90, dated 5.2.1990 to the first appellant''s husband informing him that the property had been sold in

favour of the second respondent and his brothers and the monthly rent payable by him need not be sent to the Corporation as it was no more the

owner of the property. A copy thereof was also sent to the second respondent.

Selvaraj died and his wife and sons came on record as petitioners in W.P. No. 11964 of 1984. The first appellant, wife of Selvaraj wrote a

letter to the first respondent on 7.5.1991. A copy of the letter is not made available to the court. What exactly are the contents of the letter is not

known. That letter was followed by a representation by her on 27.5.1991. A copy of that representation is also not made available. However, the

first respondent sent a communication under LC, 2/25347 91 to the second respondent and his brothers that the house was originally allotted to

their father Sivanandam and Selvaraj on 28.7.1950. According to the communication, the allotment letter dated 29.7.1950 was in favour of both

of them with respect to the respective portions. But by mistake, the entire house was sold in favour of the second respondent and his brothers. The

communication proceeded to say that as per the allotment letter the second respondent and his brothers were eligible only for the first floor of the

premises in question and therefore they were requested to reconvey the ground floor portion of the building to the first respondent, in order to sell

the same to Selvaraj or his legal heirs, since Selvaraj was also the first allottee as per the allotment letter. That communication is challenged by the

second respondent in W.P. No. 10772 of 1991. The prayer in that writ petition is for issue of a writ of certiorari to call for the records from the

first respondent and quash the said communication. In that writ petition, the appellants filed W.M.P. No. 19104 of 1991 and got themselves

impleaded as respondents 2 to 5 therein.

Even on 26.6.1989, that is, soon after the execution of the sale deed dated 10.5.1989 by the first respondent in favour of the second

respondent and his brothers the husband of the first appellant filed O.S. No. 5948 of 1989 on the file of the City Civil Court, Madras, praying for

a direction to the defendants therein to execute a registered deed of convenyance in his favour in respect of the property described in the Schedule

and for an injunction restraining the defendants from acting in any manner inconsistent with the ownership of the flat in his occupation. The subject

matter of the suit is the ground floor of the building in question. The defendants to the suit are respondents 1 and 2 herein. Later, the plaint was

amended and a prayer was added for declaration that the sale deed dated 10.5.1989 in respect of the suit property was invalid and illegal and the

same will have to be set aside in so far as the sale deed related to the suit property in the occupation of the plaintiff. That suit was contested by

both the defendants. During the pendency of the suit, the husband of the first appellant died and the appellants herein came on record as legal

representatives. By judgment dated 20.2.1991, the suit was dismissed. On appeal by the appellants in A.S. No. 165 of 1991 the decree passed

by the trial court was confirmed. The Judgment of the lower appellate court is dated 21.10.1991. It is against the said judgment, the second appeal

has been filed.

We will now take up for consideration, the writ petitions and the second appeal independently having so far stated the facts leading to the filing

of the same in common.

W.P.No. 11964 of 1984: As stated already, the only prayer in the writ petition is for issue of mandamus directing the first respondent to carry

out the scheme of sale of flats on Hire Purchase as promised in respect of the remaining 9 ''F'' typed buildings bearing old No. 124-F. new No. 28

situate in Shenoy Nagar. The writ petition has become infructuous in view of the execution of the sale deed by the first respondent on 10.5.1989 in

favour of the second respondent and his brothers.

Apart from that, the petitioners in the said writ petition cannot make a claim to the relief prayed for by them inasmuch as there is no basis

therefor. The petitioners have placed reliance on the resolution passed by the Corporation council on 7.8.1968. That resolution is only to the effect

that the Corporation will continue to have the system of letting out the property to tenants and will not sell the property to any person. It is

thereafter, the Government passed the Government Order whereby the Corporation was directed to sell the houses to the first occupants thereof.

The validity of the said G.O., has been upheld by this Court and the Supreme Court and eventhough there was no appeal in this Court as against

the judgment in favour of the first appellant''s husband, he was a party to the proceeding before the Supreme Court and he cannot now say that in

so far he is concerned the Government Order is valid/Even assuming that the Government Order is invalid, he has no right to get a mandamus

issued against the first respondent inasmuch as there is no document whatever creating any legal right in his favour to purchase the property or a

legal duty on the part of the first respondent to execute the sale deed in his favour. In this view, the writ petition deserves to be dismissed.

W.P.No. 10772 of 1991: In this writ petition the second respondent has prayed for quashing the communication dated 17.7.1991 issued by

the first respondent to reconvey the ground floor portion of the building to the first respondent in order to enable him to sell it to the husband of the

first appellant. There is no agreement for reconveyance at the time when the sale deed was executed on 10.5.1989 by the first respondent in

favour of the second respondent and his brothers. The only ground on which the reconveyance is claimed in the impugned communication dated

17.7.1991 is that the original allotment of the house was in favour of both Sivanandam and Selvaraj on 29.7.1950. It cannot be forgotten that the

said allotment of the house was only on the basis of tenancy. While the first floor was allotted to the father of the second respondent, the ground

floor was allotted to the husband of the first appellant. That was only for the purpose of the allottees occupying the premises allotted to them as

tenants on a particular rent fixed in the allotment orders themselves. The allotment orders do not make any reference whatever to the sale of the

property to any one of the allottees. For the first time, in 1953, under communication dated 5.1.1953 referred to earlier, the first respondent made

an offer to the father of the second respondent as well as the husband of the first appellant that the entire building would be sold to any one of the

tenants and it was open to them to accept the offer. The only person who accepted the offer was the father of the second respondent. The

husband of the first appellant did not accept the offer and send any communication to that effect to the first respondent. Hence the only person who

had a right to purchase the property pursuant to that agreement was the father of the second respondent. After his death, his sons- second

respondent and his brothers are rightly entitled to purchase the property- as per the sale deed executed in their favour on 10.5.1989 by the first

respondent. The offer made by the first respondent was also followed by the Government Order in G.O.Ms. No. 1981 referred to already

whereby the Government directed the first respondent to convey the entire building to the person who occupied the building in the first instance.

The first occupant of the building was only the father of the second respondent. Admittedly, the husband of the first appellant occupied the building

only later when he entered the ground floor pursuant to his allotment. Thus, by virtue of the G.O. preference was given to the first occupant and not

to the first allottee. In the impugned communication, the first respondent has mistakenly stated .that right to purchases belonged to the first allottees

and therefore both Sivanandam and Selvaraj were entitled to purchase as the allotment was made to them on the same day. That communication of

the first respondent is therefore undoubtedly erroneous and it cannot be sustained. The above reasons are sufficient to hold that the communication

in LC 2/2534/91. dated 17.7.1991 from the first respondent to the second respondent and his brothers is wholly unsustainable and it is illegal

which deserves to be quashed. Writ Petition No. 10772 of 1991 deserves to be allowed.

S.A.No. 407of 1993: We have already referred to the prayers made in the suit by the original plaintiff who is no more. In the plaint, a

reference is made to an agreement dated 26.8.1981 between the plaintiff on the one hand and the second defendant on the other. The second

defendant in the suit is none other than the second respondent herein. The agreement is, marked as Ex.A-6 in the suit. As per the agreement, the

first floor was occupied by the second defendant and the ground floor was occupied by the husband of the first appellant. When the Government

by its G.O.Ms. No. 1981, dated 17.12.1979 directed the first respondent to execute the sale deed in favour of the first occupant of the house, a

petition was filed by the husband of the first appellant in W.P. No. 6164 of 1981 and the G.O., was sought to be quashed. The parties to the

agreement, agreed that each of them will be willing for buying the respective portions in their occupation from the first respondent at the time of

allotment of the premises for occupation duly settling the matter themselves. It was further stated that the second respondent will buy the first floor

portion in his occupation and the husband of the first appellant will buy the ground floor portion in his occupation from the first respondent. The

entire building was shown in the schedule to the agreement. It is brought to our notice by learned Counsel for the appellants that in W.P. No. 6164

of 1981, the second respondent filed an affidavit on 11.9.1981 referring to the aforesaid agreement and stating that he had agreed to purchase the

first floor and the agreement between the parties could be recorded by the court and consequent orders be passed in respect of the same in the

writ petition. However, no step was taken by either party to get the agreement recorded in the writ petition and order passed on the basis of the

agreement in that writ petition. In fact, the agreement was clearly outside the scope of the writ petition as the prayer in the writ petition was only to

quash the G.O., passed by the Government. The second respondent herein was the fifth respondent in that writ petition. Obviously, the parties

were advised that the agreement could not be recorded in that writ petition and orders could not be passed on the basis of such agreement.

Ultimately, the writ petition was allowed by the single Judge and the G.O. passed by the Government was quashed. No doubt, there was no

appeal against the said order. But the proceedings before the Supreme Court show that the subject matter of the writ petition was also considered

in those proceedings. Whatever it may be, the fact remains that the agreement was not recorded in this Court and no order was passed on the

basis of that agreement. The mere fact that a reference was made to the agreement in the affidavit filed by the second respondent (Ex. A-7) will not

enable the appellants to get any relief in the suit.

Moreover, the agreement is only to the effect that the first floor will be purchased by the second respondent and the ground floor will be

purchased by the husband of the first appellant. The first respondent is not a party to the agreement. The brothers of the second respondent are

also not parties to the agreement. The first prayer in the suit is to direct the defendants to execute a registered deed of conveyance in favour of the

plaintiff in respect of the ground floor portion. The first respondent not being a party to that agreement could not be directed to execute a sale deed

for the ground floor in favour of the plaintiff. The first respondent had also ceased to be the owner of the ground floor by 10.5.1989. even before

the suit was filed. The second respondent cannot also be directed to execute the sale deed in respect of the ground floor as there was no

agreement by the second respondent to convey the ground floor to the plaintiff. The agreement was only for the plaintiff to get a sale deed in

respect of the ground floor from the first respondent.

The second prayer which was later brought in by amendment is to declare that the sale deed dated 10.5.1989 in favour of the second

respondent and his brothers is invalid and illegal and that it will have be set aside. With reference to the ground floor, we have already held while

dealing with the two writ petitions that the husband of the first appellant had no right whatever to get a sale deed. Consequently, he cannot have the

sale deed dated 10.5.1989, in favour of the second respondent and his brothers, declared as invalid. Further, the second respondent''s brothers

are not impleaded as parties to the suit. The suit is to fail for non-joinder of necessary parties. When a prayer is made in the suit for declaration that

the sale deed dated 10.5.1989 in respect of the property is invalid and illegal, they ought to have been made parties to the suit. Without impleading

them, the plaintiffis not entitled to such a relief. The third prayer for permanent injunction is only consequential to the first and second prayers.

Further, the third prayer assumes that the plaintiffis the owner of the flat in his occupation. He never became the owner of the said flat and he was

only a tenant under the first respondent till the entire house was sold by the first respondent in favour of the second respondent and his brothers.

The trial court held that the plaintiffs claim was barred by the decision in the prior procedure viz., writ appeals and the Special Leave petitions

on the file of the Supreme Court. The trial Court also held that the sale deed executed on 10.5.1989 in favour of the second respondent and his

brothers was only in pursuance of the decision in the writ appeals and special leave petitions and therefore it was quite valid and legal.

Consequently, the suit was dismissed.

The reasoning of the appellate court was slightly different. While holding that the agreement dated 26.8.1981 did not confer any right on the

plaintiff to get a sale deed either from the first respondent or from the second respondent, with reference to the ground floor, the appellate court

held that even if it could be construed as an agreement for sale in favour of the plaintiff, the suit was barred by limitation.

Learned Counsel for the appellants contends that the plea of limitation was not raised in the trial court and it was not open to the appellate

court to consider the question of limitation. There is no merit in this contention. Section 3 of the Limitation Act provides that it is the duty of the

court to dismiss any suit instituted, appeal preferred and application made after the prescribed period although the limitation has not been set up as

a defence. (See also the decision in Ittavira Mathai Vs. Varkey Varkey and Another, , However, in this case, we do not want to rest our

conclusion on the bar of limitation. It can be contended that cause of action for the plaintiff arose on 10.5.1989 when the sale deed was executed

by the first respondent in favour of the second respondent and his brothers. As already pointed out by us, there was no agreement in favour of the

plaintiff for sale of the ground floor of the building by the first respondent or the second respondent. Hence there is no question of enforcement of

such an agreement in favour of the plaintiff. It is also to be pointed out by us that the agreement dated 26.8.1981 is not supported by any

consideration whatever. The contention of learned Counsel for the appellants that the agreement is in settlement of dispute and such settlement is a

valid consideration, cannot be accepted as we have already observed that there was no attempt on the part of the parties to settle the dispute in the

writ petition and the writ petition was only decided on merits by this Court.

Yet another contention of learned Counsel for the appellants is that the second respondent is estopped from resisting the suit because of the

agreement dated 26.8.1981 and his affidavit filed in W.P. No. 6164 of 1981 (Ex.A-7). There is absolutely no merit in this contention. None of the

ingredients of Section 115, Evidence Act is present in this case. There is no pleading in the suit of the facts which are necessary to support the case

of estoppel. Neither the appellants nor their predecessor Selvaraj ever claimed to have acted on any presentation of the 2nd respondent or

suffered any detriment thereby. On the death of the father of the 2nd respondent on 22.8.1969, his rights devolved on the 2nd respondent and his

two brothers. The agreement dated 26.8.1981 with the 2nd respondent alone is invalid and unenforceable.

In the circumstances, we have no hesitation to hold that the appellants are no entitled to any of the reliefs prayed for in the plaint and the

second appeal deserves to be dismissed.

In the result, Writ Petition No. 11964 of 1984 and Second Appeal No. 407 of 1993 are dismissed. Writ Petition No. 10772 of 1991 is

allowed. No costs.

After the conclusion of the Judgment, learned Counsel for the appellants prays that a direction may be issued to the second respondent that he

shall not sell the property to any third person without making the first offer to the appellants herein. Once the second respondent and his brothers

have become the absolute owners of the property there cannot be a direction as prayed for. Further, we have now disposed of these proceedings

and nothing is pending before us. In such a situation, a prayer which fails outside the scope of the proceedings cannot at all be granted. Even if that

prayer had fallen within the scope of the proceedings, it cannot be granted, as the proceedings have been concluded as above. Hence the prayer,

is rejected.