Bharti Rani Singh Vs Rajinder Singh Bedi

J.B. Goel, J.

(1) This Regular First Appeal has been directed against the judgment and decree dated September 27, 1978 passed by the learned Single Judge of this Court whereby the suit filed by deceased plaintiff Smt. Bharti Rani Singh against the respondents No. 1 to 5 who were defendants, for specific performance of an agreement to sell dated February 20, 1961 has been dismissed. However, a decree for refund of Rs. 89,678.41P. after disallowing the refund of earnest money of Rs. 17,000.00 has been passed in her favour.

(2) The said plaintiff had filed a suit for specific performance against the present respondents 1 to 5 alleging that Late Shri K.R. Bedi, the father of the respondent R.S. Bedi had entered into an agreement to sell dated February 20, 1961 for sale of property bearing Plot No. 18, Block No. 39, Kautilya Marg, Chanakyapuri, New Delhi for a consideration of Rs. 2,37,000.00. Out of sale consideration a sum of Rs. 17,000.00 was paid as

(3) Defendants No. 1 to 4 (respondents No. 1 to 4 herein) filed the written statement and contested the suit. It was not disputed that the deceased Shri K.R. Bedi had executed the agreement to sell in question for a consideration of Rs. 2,37,000.00 and out of it having received Rs. 17,000.00 as earnest money. They had also not disputed the receipt of various payments made by the plaintiff as aforesaid. However, it was alleged that it was plaintiff who was not ready and willing to perform her part of the agreement and to get the sale deed executed. It was also alleged that vide letter dated 25th July, 1969 sent by the defendants through their Advocate it was notified to the plaintiff that the sale deed must be completed and registered within one month from the date of obtaining the No Objection Certificate from the Taxation Authorities; this certificate was obtained on 6.8.1969 and the plaintiff was immediately informed about it. But the plaintiff was not ready and willing to complete the sale deed by paying the balance sale consideration and then by notice dated 8.11.1969 the defendants informed the plaintiff that she had committed the breach of the agreement and so they had forfeited all moneys paid by her or on her behalf. Defendants thus alleged that it was the plaintiff who had committed the breach of the agreement whereas the plaintiff put the blame on the defendants.

(4) Following issues were framed in the suit:

1. Whether plaintiff No. 2 has locus standi to file this suit?

2. Whether plaintiff No. 1 had always been ready and willing to perform her part of the contract?

3.Whether the defendants have breached the contract?

4.Relief.

Both the parties examined one witness each. On behalf of the plaintiff her husband Shri Sushil Singh was examined as PW.1 whereas on behalf of defendants Shri R.S. Bedi, defendants No. 1 was examined as DW.1. Some documents were also produced on behalf of the parties. Issue No. 1 was not pressed and it was claimed that decree may be passed on favor of plaintiff No. 1 alone. Issues No. 2 & 3 were decided against the plaintiff and in the result the suit of the plaintiff for specific performance was dismissed. However, a decree for refund of Rs. 89,678.41 (i.e., Rs. 1,06,678.41 paid to defendants towards sale price minus Rs. 17,000.00 as earnest money forfeited) was decreed. Being aggrieved the plaintiff filed the present appeal. Respondents No. 1 to 5 are the original defendants whereas respondent No. 6 is the original plaintiff No. 2. plaintiff No. 1 died during the pendency of the appeal and on their application her son and daughter were substituted for her vide order dated 17.8.1993. The agreement to sell (Ex.P.1) was entered into by the parties on 20.2.1961. Shri K.R. Bedi died in August, 1961 leaving behind his widow Smt. Somawanti, three sons, namely, Rajinder Singh Bedi (Defendant No. 1), Narinder Singh Bedi (defendant No. 2), Ravinder Singh Bedi (defendant No. 3), daughter Smt. Shakuntala Bammi (defendant No. 4), and a son of a predeceased daughter - Deepak Bammi (defendant No. 5). Deepak Bammi was a minor. After his death only defendant No. 1 has been dealing on behalf of the other co-owners in connection with this agreement to sell. The sale was not completed till 25.7.1969 when another agreement dated 25.7.1969 (Ex.P.16) was made between Bharti Rani singh and R.S. Bedi & Ors. Ex.D.10 is the certified copy of the perpetual lease deed to the land in question ly registered on 27.1.1956 placed on record by the defendants. By its clause 2(13) it is specifically provided that the lessee shall not assign or transfer the premises or any part thereof without the permission in writing of the Lesser or officer who may be authorised in this behalf and further it is provided that the Lesser shall be entitled to claim and recover 50% of the unearned increase in the value of the land at the time of transfer. It was agreed in the agreement to sell that sale deed will be executed after obtaining this permission. It was pleaded in the plaint that the plaintiff No. 1 had given the necessary affidavit to Shri K.R. Bedi for furnishing the same to the Land and Development Officer for enabling him to obtain the permission to sell the said property which is not disputed. It is further pleaded in the plaint that after the death of Shri K.R. Bedi, the defendants on 4th October, 1961 approached the plaintiff No. 1 and represented that they were in dire necessity of some amount and requested the plaintiff No. 1 that a sum of Rs. 5,000.00 may be paid. They confirmed the terms and conditions of the "agreement to sell" dated February 20, 1961 and agreed to execute sale deed after obtaining permission to sell from the Chief Commissioner, Delhi. On this the plaintiff No. 1 paid a sum of Rs. 5,000.00 vide cheque No. D-110139, dated 8th October, 1961 drawn on Lloyds Bank Limited, New Delhi, to the defendants. On the death of Shri K.R. Bedi the said property was required to be mutated in the name of the defendants and Smt. Somawanti. The defendants were also required to obtain permission from the taxation authorities, i.e., Income Tax, Wealth Tax etc. for enabling them to execute the sale deed. They were also liable to pay estate duty payable on the death of Shri K.R. Bedi. The defendants had approached the plaintiff No. 1 to make some payments to them to enable them to obtain such permission and no-objection. The plaintiff No. 1 was not liable to pay any such amount to the defendants as under the agreement to sell dated February 20, 1961 the plaintiff was to make the balance payments before the Sub-registrar, at the time of registration of the sale deed, however, the plaintiff, it is alleged, paid the following amounts to the defendants for enabling them to execute sale deed.

I) Rs. 25,000.00 on 20.4.1965

II) Rs. 25,000.00 on 21.5.1965

III) Rs. 24,751.00

IV) Rs. 1,600.00

V) Rs. 10,000.00 on 8.3.1966

The plaintiff No. 1 had also paid Rs. 25,833.00 , the amount claimed by the L & D O as Government''s share in the increase in value of the land and another sum of Rs. 1102.41 was also paid by the plaintiff No. 1 to the L & D.O. on behalf of the defendants and as per their directions; the defendants thus had received Rs. 94,678.41 (including the amount received by Shri K.R. Bedi) and had been acknowledging their liability to execute the sale deed in favor of the plaintiff No. 1, while receiving those payments besides payments made to L&DO on behalf of vendor. These facts are not denied in the written statement. In the plaint it is alleged that defendant No. 5 was a minor at the relevant time. The defendants had not obtained requisite permission from the District Judge, Delhi, required to sell the minor''s share. Receipt of various payments have also been acknowledged by defendant No. 1 vide receipts/acknowledgements dated 8.3.1966 (Ex.P.9), Ex.P.7 and Ex.P.8 and by late Shri K.R. Bedi vide receipts Ex.P.2, P.3, P.4. Defendants thus were required to obtain permission/clearance from the Taxation authorities; permission of the District Judge on behalf of minor; on the death of Shri K.R. Bedi in August, 1961, requisite clearance under the Estate Duty Act and Wealth Tax Act, besides permission of L&DO. There is no averment made nor it is shown that the defendants had complied with these conditions and informed the plaintiff to this effect till 25.7.1969. Without fulfilling these requirements on their part on valid sale deed could be executed by the defendants in pursuance of the agreement to sell in question. The defendants through their advocate had sent a notice dated 31.12.1966 (Ex.D-2) admitting their obligation to execute the sale deed in pursuance of this agreement to sell and also having received various payments under the agreement to sell but still in para No. 4 of this notice it is alleged that defendants have always been ready and willing to perform their part of the contract and had approached plaintiff several times to complete the same but she did nothing. By this notice the plaintiff was required to complete the contract within 15 days from the receipt of this notice, to buy the stamp papers for sale deed and have the sale deed prepared to enable the defendants to execute and register it before the Sub Registrar against payment of the balance sale price. It was also notified in this notice that if she failed to do so within this period of 15 days it will be assumed that she is not interested in buying the above property and in that case the bargain shall be deemed to have come to an end on account of her default and the defendants will be at liberty to sell the said property to third party if they liked. This apparently was not bonafide as the defendants were not in a position to execute a sale deed. On 25th July, 1969 another notice (Ex.P.12) was sent on behalf of defendants through their Advocate to the plaintiff wherein they had asked for Rs. 15,000.00 more from plaintiff and then they will obtain documents/certificates required. This also shows that till 25.7.1969, the defendants were not in a position to execute a valid sale deed in favor of plaintiff and to produce relevant documents to convey valid title. On 25th July, 1969 parties had entered into an additional agreement (Ex.P.16). This agreement also confirms and contains admissions of the defendants that it was due to acts or omissions on the part of the defendants that the agreement to sell could not fructify and the sale deed could not be executed in favor of the plaintiff. There is no material brought on record to show that there was any fault or default on the part of the plaintiff or otherwise that the plaintiff had not been able to perform her part of the contract till 25.7.1969. On behalf of the plaintiff her husband Shri Sushil Singh had appeared as PW.1. He deposed as under:

...We have always been ready and willing to pay the amount. On two occasions I purchased the judicial stamp papers for the execution of the sale deed. The sale deed could not be executed because defendant Shri R.S. Bedi and others could not produce the requisite documents of title and certificates. The sale deed was drafted and typed only once on non-judicial stamp papers purchased for the purpose of execution of sale deed was Rs. 16,000.00. The non-judicial stamp papers were returned on the expiry of the period prescribed for execution of the sale deed on the said papers. On return of the stamp papers 10% of their price was deducted by the authorities. It happened both the times. My wife bore that loss on both occasions. I have always been asking the defendants, R.S. Bedi to produce the perpetual lease deed and other documents with regard to this property. Whenever I asked them to produce the documents of title regarding the property they gave various types of statements. Those statements were that Mr. R.S. Bedi said that they are with his brother at Calcutta and he would get them back. On another occasion Shri R.S. Bedi said that the documents had been lost and he was trying to trace them out. On another occasion he said that he was trying to get certified copies of the documents of title from the authorities. R.S. Bedi one of the defendants, said on another occasion that he would require about Rs. 25,000.00 for getting the certified copies of the documents and the certificates. The defendant said that he would either get the original or obtain a certified copy thereof. At that time of his asking for Rs. 25,000.00 R.S. Bedi told me that he would get those documents from one of his relations. R.S. Bedi did not tell me why those documents were lying with his relations.

In cross-examination no suggestion has been put to him that the witness had not met Shri R.S. Bedi till 1969 or the plaintiff had avoided the execution of the sale deed on the pleas as alleged or otherwise. He has been cross-examined at length about the purchase of stamp papers. He has denied the suggestion that he had concocted the story about the purchase of the stamp papers and return of the same at 10% less though in reply affidavit to Interrogatory No. 11 Shri R.S. Bedi, defendant has admitted that the plaintiff had obtained non-judicial stamp papers for the sale of the property.

The learned Judge has adversely commented upon the statement of PW.1 on the aspect of the purchase and return of the stamp papers:

In the written statement it is not the case of the defendants that plaintiff had not been ready and willing to complete her part of the contract before 25th July, 1969 or that she had not purchased the requisite stamp papers before that date. In notice dated 31.12.1966 (Ex.D-2) sent by defendants through Advocate the plaintiff was required to purchase the stamp paper, get sale deed prepared to enable the defendants to execute the sale deed etc. The stamp paper apparently would have been purchased in compliance of this notice. Finding of the learned Trial Court against the plaintiff to this extent in the circumstances is not justified. In the case of contract for sale of immovable property, it would normally be presumed that time was not the essence of the contract. In the agreement dated 20.2.1961 there is nothing to show that time was the essence of the contract nor it is the case of the parties that time was the essence of the contract originally. Both the parties had been treating the agreement as subsisting and payments have been demanded by the Vendors and were being made by the Vendee to them till 25.7.1969. Last payment of Rs. 12,000.00 was made on 25.7.1969. The parties could by mutual agreement make time as the essence of the contract by express stipulation to that effect. In the second agreement dated 25.7.1969 (Ex.P.16) parties had expressly stipulated and agreed that the Vendors would obtain requisite certificates/permission and other documents within one month and would send intimation of receipt of such certificates etc. to the Vendee by registered Ad post and the Vendee within one month of the receipt of such intimation shall complete her part of the contract and get the sale deed executed. It is also specifically agreed that time shall be the essence of the agreement. The case of the Vendors is that `No Objection Certificate'' was obtained from the Income Tax authorities on 6.8.1969, (That certificate is Ex.D-9) and intimation thereof was given to plaintiff vide letter dated 13.8.1969 sent by ordinary post under certificate of posting (for short UPC). Copy of that letter is Ex.D-5) and it Upc is Ex.D-3. The plaintiff has denied receipt of this intimation. Learned counsel for the appellants has contended that the plaintiff had not received such intimation and by not sending the intimation by registered Ad post the Vendors have committed breach of essential term of the agreement and in not complying it is a deliberate attempt to avoid completing sale. The course adopted for sending such intimation under postal certificate is dubious mode and it has also been so judicially noticed and is well known for its notoriety. He has also contended that when the parties had agreed to a particular mode other method of doing it is prohibited. He has relied on the provisions of Section 50 of the Contract Act, and the decisions reported as Bishambhar Nath Agarwal Vs. Kishan Chand and others, H.P. Gupta Vs. Hiralal, ; Ramashankar Prosad and Others Vs. Sindri Iron Foundry (P) Ltd. and Others, Shiv Kumar and Others Vs. State of Haryana and Others, ; and Badri Dass Vs. Agfr & Con. Coop. Store, 1986 Rlr 26. Section 50 of the Contract Act reads as under:

50.The performance of any promise may be made in any manner, or at any time which the promise prescribes or sanctions.

This provision applies when the promise has prescribed the mode of performance but in the present case the mode has been prescribed by both the parties. In Bishambhar Nath Aggarwal''s case (Supra) it was held by the Division Bench of the Allahabad High Court as under:

IF any agreement states that a particular act relating to the furtherance of the contract was to be done in a particular manner, then it should be done in that manner and it si not open to the concerned parties to chalk out his own manner of performing his part of the contract.

In Hanuman Parshad''s case it was held that where the power to pay dividend by posting a cheque or a warrant as provided in Section 205(5) of the Companies Act) is incorporated in the Articles of Association of the Company it constitutes a contract between a company and its members and if under a contract, a promise prescribes the manner in which the promise is to be performed, the promisor can perform the promise in the manner so prescribed (see Section 50 of the Contract Act). Sending of letters/notices under certificates of posting is not commended and has been looked with suspicion as is apparent from the following cases. In R. Prosad''s case (supra) at page 549 Mitter J. has observed as under:

IT is only too well known that certificates of posting can be got hold of without actually putting letters in the post.

And Mukerjee J. at page 536-64 in the same judgment has observed as under:

IN vain, Therefore, have we heard so much in the course of the address on behalf of the appellants of notices of the meetings having been sent through certificates of posting, as if these certificates are clothed with sacrosanctity. No doubt, under illustration (e) to Section 114 of the Evidence Act the Court may presume that an official act has been regularly performed. But such a presumption is optional. But not that the court is bound to presume so in every case.... That apart, how much of a letter sent with a certificate of posting is an official act? No officer of the Post Office guarantees even the address on the letter and the address on the certificate being the same. All that is guaranteed is the postal seal by the menial of the Post Office without any manner of the comparison. Nothing I imagine is easier for an unscrupulous person that to use a certificate of this sort as a bluff.

In Shiv Kumar''s case (supra) regarding unreliability in sending of notices to the workmen under postal certificates, it has been observed as under:

WE have not felt safe to decide the controversy at hand on the basis of the certificates produced before us, as it is not difficult to get such postal seals at any point of time.

Again in Badri Dass''s case (supra) a learned Single Judge of this Court (Sultan Singh, J.) has also noticed that sending notice by certificate of posting is dubious and it was observed as under:

IT is well known that it is not at all difficult these days to obtain a postal seal of a prior date on a certificate of posting.

On the other hand learned Senior Advocate Mr. S.S. Ray, for some of the respondents has contended that Section 50 of the Contract Act is not applicable in such a case and also that Section 50 is enabling provision to help the promisor, if he has acted in accordance with the directions of the promisee, he is discharged; he has also contended that the cases relied on behalf of the appellants are not relevant because in those cases the non-compliance entailed prosecution or involved criminality or otherwise because of their peculiar facts. According to him sending of letter under postal certificate is proper and gives rise to presumption of service unless rebutted; and presumption arising has not been so rebutted in this case. He has relied on Harihar Bannerji Vs. Rama Shashi Roy & Ors. Air 1918 Pc 102 Kanak Lata Ghose Vs. Amal Kumar Ghose, and Harcharan Singh Vs. Shiv Ram Air 1981 Sc 1284. In Harihar Bannerji''s case (supra) the following observations made in an earlier case in Gresham House Estate Co. Vs. Rossa Grande Gold Mining Co. 1870 Wn 119 have been referred to with approval;

That if a letter properly directed, containing a notice to quit, is proved to have been put into the post office it is presumed that the letter reached its destination at the proper time according to the regular course of business of the post office, and was received by the person to whom it was addressed. That presumption would appear to their Lordships to apply with still greater force to letters which the sender has taken the precautions to register, and it not rebutted but strengthened by the fact that a receipt for the letter is produced singed on behalf of the addressee by some person other than the addressee himself.

In the case of Harihar Bannerji, the notice to quit was sent to all defendants at their known and correct addresses by registered post. Receipts of registration were produced. The Peon of the Post Office, who was the defendants'' only witness, admitted having received receipts for the letters when delivered. Some of the receipts were signed by persons other than the addressees on their behalf. Only one of the defendants, who appeared as a witness, admitted that he had received through post office the notice addressed to him. None of the other defendants appeared as witnesses to deny that they had received the notices. In these circumstances, it was held that notices sent by registered post were duly served on all the defendants. The facts of this case are clearly distinguishable as in that case notices sent by registered post, were proved to have been delivered and the addressees did not appear in the witness box to deny the receipt thereof. This was not a case of notice sent under Certificate of Posting. In Harcharan Singh''s case (supra) it was held that the presumption both u/s 27 of the General Clauses Act as well as u/s 114 of the Evidence Act are rebuttable and in the absence of proof to the contrary a presumption of proper service or effective service on the addressee would arise. In that case there was positive evidence of the Postman to the effect that the registered envelope was actually tendered by him to the appellant who refused to accept it. In those circumstances service was held proper. In that case notice was sent by registered post and secondly, evidence of the Postman about tendering of and refusal by the addressee was believed by the Court. This case is clearly distinguishable on facts. In Kanak Ghosh''s case (supra) it was held that where letter is sent under postal certificate presumption arises u/s 114 of the Evidence Act but such presumption is rebuttable. In that case testimony of the addressee husband on other part of the main case between him and his wife was found to be not trustworthy as against the wife and her testimony was believed. And in these circumstances the statement of the husband that he had not received letters sent to him by wife under postal certificate was also not believed. It is well established principle that where power is given to do a certain thing in a certain way, the thing must be done in that way or not at all Nazir Ahmad Vs. King Emperor Air 1938 Pc 253 . Following Nazir Ahmad''s case one of us (Mahinder Narain J.) in Satya Narain P. Punj Vs. Union of India 1986 Rlr 517 has observed as under:

It is well settled principle of law that when a statute requires a thing to be done in a particular manner, it must be done in that manner or not at all.

In view of this legal position it can not be said that the mode of sending of letter under postal certificate is a very reliable and dependable mode in which implicit reliance can be placed. It will depend on the quality of evidence and the facts and circumstances of each case whether in fact such mode was actually adopted in a case and the evidence adduced is acceptable, dependable, and reliable or not? There is no reason why the parties should not be required to comply express terms of the agreement. In the present case, letter (Ex.D-5) alleged to have been sent under postal certificate is sent contrary to the mode expressly agreed by the parties, i.e., agreed mode was sending by registered A.D. post. Non-compliance of this condition in itself is a suspicious circumstance creating doubt is the letter was at all actually sent. The finding of the learned Single Judge on the service of this letter is as under:

THE Vendor obtained Income Tax Clearance Certificate on 6.8.1969 as admitted in the plaint. Permission of the Land and Development Officer to effect the sale deed had been taken earlier. The perpetual lease deed had already been registered in favor of K.R. Bedi and copy thereof was obtained by the defendant on 25.7.1969 and the defendants were thus in a position to complete the sale. They wrote a letter to Bharti Rani Singh on 13.8.1969 telling her that Income Tax Clearance Certificate and the other documents required for the transfer of the property in question had been obtained and requesting her to take urgent steps to have the sale deed registered within a month as stipulated in the agreement. This letter was sent under postal certificate and proof of that fact is to be found in Ex.D-3. As per the last mentioned document he relevant communication was sent to Bharti Rani Singh at her residence, New Dak Bungalow Road, Patna as well as, "C/o Shri C.P.N. Singh, 115/48, Malcha Marg, Diplomatic Enclave, New Delhi". There is a presumption to be raised as to the notice aforesaid reaching the plaintiff u/s 114 of the Evidence Act. (See Shri Om Parkash Bahal Vs. A.K. Sharoff, 1972 Rcr 690 and Bharti Rani Singh has not appeared in the witness box to say that she did not get it.

Learned Single Judge has not referred to the oral evidence produced by the parties on this aspect, nor about non-compliance of essential term agreed about sending intimation by registered Ad post and other relevant circumstances of the case and has simply presumed that the letter sent under postal certificate had actually reached the addressee-plaintiff. Apparently adverse inference has been drawn against her as she had not appeared as a witness. The learned Single Judge has relied on Om Parkash Bhal Vs. A.K. Shroff 1972 Rcr 690, for raising presumption of service of notice sent under postal certificate. In that case, Landlord had resorted to three modes of service of notice u/s 106 of the Transfer of Property Act on the tenant, namely, (1) by registered post, (2) under postal certificate and (3) affixation. Notice sent by registered post was returned undelivered with the report of the Postman that no one came out of the house to take delivery of the registered article. The tenant appeared in the witness box to say that he was out of town when the notice would have been delivered and it was not served on him. But no person from the household appeared as a witness box to deny it. It was observed that it is well known that letters are delivered into the residence of the addressee and not personally to the addressee. In that case it was held that notice was served by post sent under postal certificate as well as by affixation. It was observed that when a notice is sent under certificate of posting there is presumption of service and tenant''s denial has no value unless he proves some extraordinary happening or event which prevented the following usual course of business. This case is of peculiar facts. Sending notice by three modes, i.e., by registered post; and under postal certificate simultaneously and also resorting to the mode of affixation, shows bonafides of the Landlord to ensure that notice is delivered. This authority does not lay down different principle. The presumption that arises is rebuttable and that will depend on the quality of evidence and other relevant facts and circumstances of the case. In the present case, sending letter by registered post was avoided and was in breach of the mode specifically agreed between the parties for sending intimation to the vendee. This stipulation in the agreement is an essential term forming part of the agreement between the parties. The essential terms are to be observed both by the Vendors and by the Vendee. As noticed earlier, the mode adopted is dubious and is well known for its notoriety. One can understand that to ensure that a letter or notice actually reaches the addressee, a parties may adopt both the means of sending by registered post as well as under postal certificate simultaneously. Such a course would lend credence to the bonafides of the sender that he intended to actually serve the notice on the addressee. But in the present case, the Vendors are claiming to have sent under Postal Certificate such a letter of vital importance which could entail devastating consequences and without any Explanation for departure from the agreed course in the case. This conduct of defendants is highly suspicious and doubtful. No suggestion has been put to PW.1 that such letter was sent and actually delivered to the plaintiff or her household inspire of the fact that receipt of such letters is specifically denied in the pleading and PW.1 has deposed in-chief that the sale deed could not be executed because the defendant failed to produce the requisite documents of title and certificate. And in cross-examination of DW.1 it is suggested on behalf of the plaintiff that the said two letters (i.e., D-5 and D-6) were not sent by him to plaintiff No. 1 and the postal certificates are spurious. In reply to another question DW.1 has stated that after sending letter under certificate of posting he did not consider it necessary to get a notice served on plaintiff No. 1 by registered post. Whereas earlier two notices were sent through Advocate by registered post. There is no Explanation why? DW.1 is not claiming ignorance or forgetfulness of the express stipulation in the second agreement about sending intimation by registered Ad post. It is highly doubtful if at all such letter was actually sent by the defendants. Conduct of the Vendors prior to 25.7.1969 also as noticed earlier does not show that they had shown keenness in performance of their part of the agreement. What can be the reason for deviating from the agreed mode of sending intimation by registered post? None else than taking some undue advantage. It is admitted by defendant No. 1 in his cross-examination as DW.1 (on 20.7.1978) that the value of this property was about rupees six lakhs on 25.7.1969. The contention on behalf of the plaintiff is that the vendors had apparently entered into another agreement to sell in favor of Mr. Wahi. Learned Counsel for the appellants has referred to us the following relevant portions from the cross-examination of DW.1 to support it:

I had no dealing with Mr. Wahi regarding the sale of the property in dispute to him. I did not receive Rs. 50,000.00 from Mr. Wahi. It was given by him to me as a loan but with the condition that if plaintiff No. 1 did not purchase the property in dispute, he would buy it and the said amount would be adjusted against the consideration. I may have received this amount some time in the end of 1961 or the early 1962. It is incorrect that Mr. Wahi had served a notice on me stating that the said amount had been paid as stating that the said amount had been paid as earnest money in respect of an agreement of sale. That money has not been re-paid to Mr. Wahi till today. I did not pay any interest to Mr. Wahi on that amount as there was no understanding regarding payment of interest. The money is no longer due to Mr. Wahi. I adjusted that amount against my salary from Mr. Wahi from 1970 till 1975. During the aforesaid period it was having litigation with Mr. Mohan Wahi and that matter went up to the Supreme Court. It is incorrect that I received a cheque for Rs. 5,033.85 in November, 1969. I received information from, L&DO that a cheque for that amount in their favor had been dishonoured and that cheque had been issued by Mr. Wahi, without my knowledge. It is incorrect that I was trying to resile from this agreement in 1969-70 and trying to sell this property to Mr. Wahi. The value of this property was about rupees six lakhs 25.7.1969.... I have never been assessed to Income Tax. I was serving M/s. Parts Service India Limited as an Adviser on a remuneration of Rs. 1,500.00 per month. This service continued for 5-1/2 years approximately. It is correct that a sum of Rs. 50,000.00 aforesaid had been received by me from Mr. Wahi and not from the company. No document was executed to constitute evidence of payment of Rs. 50,000.00 by Mr. Wahi to me. I do not remember even the year of the letter written by me to Mr. Wahi. I did not get any intimation from the company to the effect that the amount of my salary was being adjusted against Rs. 50,000.00 due by Mr. Wahi. Whenever, I was given some actual payment by the company, I signed a Voucher therefore. The company did not give me any appointment letter and they never informed me about the deduction of any Income Tax from my salary. There is no document to witness that I have done any adviser''s work for the aforesaid company.... It is correct that litigation was going on between me and Mohan Wahi in Calcutta High Court but I do not remember the period when the said litigation was going on Mr. Mohan Wahi had been residing in that property since the tenancy started.... I did not receive any letter dated 1.8.1970 from Mohan Wahi regarding purchase of this property.... It is correct that I had filed an affidavit in Calcutta High Court in which it was stated that the amount of Rs. 50,000.00 was received by me in my personal capacity. As per the directions of the Court and on the advice of my counsel, I had filed this affidavit. I have never been present in the Calcutta High Court and as such I cannot say whether Mohan Wahi had raised a question that he had paid a sum of Rs. 50,000.00 to me for the purchase of the property in suit. I do not remember the date or the year when I filed such an affidavit in Calcutta High Court. I was, however, filed subsequent to 1970.... It is wrong that we have backed out from the contract because the price of the property has risen since the date of agreement and Mr. Mohan Wahi was paying higher price for that....

One would not advance loan of Rs. 50,000.00 without interest to any one and if advanced it cannot be believed that no writing would be made or that the loan would not be repaid and in case of non-repayment within reasonable time, no demand for its payment would have been made. There is no satisfactory evidence that DW.1 was entitled to any salary which would have been adjusted in repayment of this loan. No document showing alleged adjustment is also forthcoming. This material shows that in all probability the defendants had entered into another agreement to sell the property, in question with Mr. Wahi and a sum of Rs. 50,000.00 was taken as advance against it. That could be the reason on the part of Vendors to avoid the completion of the sale in favor of the plaintiff and that is why dubious mode of U.P.C. was adopted instead of sending by registered Ad post as agreed vide Ex.P-16. They have apparently created false evidence of sending letter dated 13.8.1969 under certificate of posting. This equally applies to the second letter dated 8.11.1969 (Ex.D-6) similarly sent under U.P.C. Learned Single Judge has also drawn adverse inference for Smt. Bharti Rani Singh (plaintiff) having not appeared as her own witness. On her behalf her husband Shri Sushil Singh, PW.1 had appeared and he deposed that his wife was bed ridden and was not in a position to move about; she had been suffering from stone in Gall bladder with high sugar contents in the blood and she has not, Therefore, been able to move about for the last 6 months. In cross-examination he has also stated that he was holding a power of attorney executed by his wife in his favor in 1964 or 1965 but he had not produced it in the Court. There is no further cross-examination nor that he was not holding such power of attorney or his wife was not bed ridden for the last 6 months and was not able to appear before any Court. (She was living at Patna). In the absence of any cross-examination or anything to the contrary this part of his testimony is entitled to be believed. Being husband, he and his wife are members of the same family and in the absence of anything to the contrary it can be presumed that they are living together as members of the same family. As also noticed in the case of Om Parkash Vs. A.K. Sharoff (supra) it is well known that letters are delivered into the residence of the addressee and not personally to the addressee. Being a member of the family he must be aware if letters Ex.D-3 and D-6 were actually received by or delivered to the plaintiff or any of the members of his family. It was her husband or someone else who was mostly dealing with the defendants on her behalf in this transaction which fact is also admitted by the defendants. It cannot be said that the fact of receipt of letters in question would be within the special knowledge of the plaintiff only and would not be known to anyone else in the family if the plaintiff and actually received the said letters. In that case the husband would be in a position to depose in court on this aspect. It is common knowledge that in Indian Society especially in this part of the country such deals are mostly negotiated and pursued by the husband or other male member of the family. As such husband or such male member would be as good a witness as the lady herself. It is not the law that in every case in which the party in the case does not appear in the witness box adverse inference necessarily follows. It would depend upon the circumstances of the case. Adverse inference on account of non-appearance of party could be raised only when there is no other evidence on record on the point in issue. In the present case, it would not be reasonable to draw adverse inference when plaintiff''s husband had appeared in the witness box and deposed on facts of the case. In any case, as held earlier the very fact of sending letters Ex.D-5, and D-6 has not been accepted and the question of raising adverse inference for this reason thus would not arise. Now the question is that has the plaintiff been ready and willing to perform her part of the agreement when she filed the suit. Learned Senior Counsel for the appellants relying on Nathulal Vs. Phoolchand, has contended that the purchaser is not required to produce money or vouch a concluded scheme for financing the transaction. The obligation to perform the part of the contract on the part of the plaintiff would have arisen after the Vendors had completed the terms and obligations on their part as required by the two agreements. And since defendants had not intimated by registered Ad post as agreed about their ability to perform their part of the agreement, the occasion had not come for the plaintiff to show her readiness and willingness to perform her part of the contract. He has further contended that the learned Single Judge was not justified on the material on record to hold against the plaintiff to deny her the relief for specific performance. He has challenged the legality and correctness of the findings of the learned Trial Court on issues No. 2 & 3. On the other hand learned Senior Counsel for respondents has supported the judgment and decree. He has contended that even before the present Specific Relief Act of 1963 (for short the Act) the legal position as held by the Privy Council in AIR 1928 208 (Privy Council) was that in a suit for specific performance plaintiff must show readiness and willingness to do his part of the contract up to the passing of decree and this now is also the condition u/s 16(c) of the Act. He has further contended that readiness includes financial capacity to pay and for willingness his conduct has to be seen which according to him the plaintiff had failed to prove as rightly held by the Ld. Single Judge. He has relied inter-alia on the decision in His Holiness Acharya Swami Ganesh Dassji Vs. Shri Sita Ram Thapar, . The legal position is not in dispute. u/s 16(c) of the Act, the plaintiff seeking specific performance has to plead and prove that he had performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him continuously between the date of contract and the date of hearing of the suit. ( Gomathinayagam Pillai and Others Vs. Pallaniswami Nadar, and AIR 1928 208 (Privy Council) . In Swamy Ganesh Dassji''s case (supra) the meaning of two expressions `readiness'' and `willingness'' has been explained. There it was observed that there is a distinction between the readiness and willingness to perform the contract. By readiness may be meant the capacity of the plaintiff to perform the contract which includes his financial position to pay the purchase price. For determining his willingness to perform his part of the contract, the conduct has to be properly scrutinised. The factum of readiness and willingness to perform plaintiff''s part of the contract is to be adjudged with reference to the conduct of the party and the attending circumstances whether the plaintiff is and always was ready and willing to perform his part of the contract. In AIR 1950 90 (Privy Council) it was held that in order to prove himself ready and willing to perform his obligation under a contract to purchase, a purchaser has not necessarily to produce the money or to vouch a concluded scheme for financing the transaction. the question is one of fact. This principle has been followed in Nathu Lal''s case (Supra). Learned counsel for the appellants has laid great stress on the following observations made in Para 11 in Nathu Lal''s case (supra) (at page 548 of AIR) where it is stated as under:

IN considering whether a person is willing to perform his part of the contract the sequences in which the obligation under the contract are to be performed must be taken into account

And the contention is that unless the defendants had performed their part of a contract no obligation arose on the part on the part of the plaintiff to perform her part of the contract. The facts in Nathu Lal''s case (Supra) were that Nathu Lal who was the owner, on February 26, 1951 had agreed to sell land along with the factory situated thereon to Phool Chand for a consideration of Rs. 43,011.00 out of which he received Rs. 22,011.00 as part payment and placed Phool Chand in possession of the property. Balance amount was to be paid on or before May 7, 1951. The property in the revenue records stood in the name of Chhittar Mal, brother of Nathu Lal. On the plea that Phool Chand had failed to pay on the due date the balance of the price Nathu Lal rescinded the contract on October 8, 1951 and later commenced action in the court for a decree for possession of that property and for mesne profits. Phool Chand pleaded that he was ready and willing to pay the balance amount but Nathu Lal had failed to get the name of Chhittar Mal deleted from the revenue records according to the terms of the agreement. The Trial Court decreed the suit holding that Phool Chand committed breach in that he failed to pay balance due by him on or before the due date. High Court in appeal reversed the decree and held that Nathu Lal was entitled to balance consideration as also mesne profits from May 7, 1951 till the date on whh Rs. 21,000.00 were deposited. In the appeal in the Supreme Court it was found that out of two conditions, one condition was not fulfilled at all by Nathu Lal and the second condition was not fulfilled till October 6, 1952. In Nathulal Vs. Phoolchand, it has been observed as under:

IN considering whether an appellant is willing to perform his part of the contract the sequence in which the obligations under the contract are to be performed must be taken into account/.... If, Therefore, under the terms of the contract the obligations of the parties have to be performed in a certain sequence, one of the parties to the contract cannot require compliance with the obligations by the other party without in the first instance performing his own part of the contract which in the sequence of the obligations is performable by him earlier.

It was in these circumstances that in para 6- it has been observed as under:

6.Phool Chand could be called open to pay the balance of the price only after Nathulal performed his part of the contract. Phoolchand had an outstanding arrangement with his Banker to enable him to draw the amount needed by him for payment to Nathu Lal. To prove himself ready and willing a purchaser has not necessarily to produce the money or to vouch a concluded scheme for financing the transaction....

In the result the appeal was dismissed and it was held that he had at all relevant times made necessary arrangements for paying the amount due to the appellant, that as Nathu Lal did not carry out his part of the contract Phool Chand could not be called upon to pay the balance of the price. In this case the purchaser was found to be in financial position to pay the balance purchase price. This was not a suit for specific performance by a purchaser and the question was whether seller could claim performance from the Purchaser without fulfilling his own obligation/conditions under the contract. The legal principle laid down therein is of no help to the appellant in the present case. In Sukhbir Singh and others Vs. Brij Pal Singh and others, also at has been observed that law is not in doubt and it is not a condition that the respondent should have ready cash with them. But "It is sufficient for the respondent to establish that they had capacity to pay the sale consideration. It is not necessary that they should always carry the money from the date of the suit till the date of the decree." In this case also it has been found as a fact that the plaintiff who has sought specific performance had necessary funds with him for payment at the time of registration and had attended the Sub Registrar''s Office to have the sale deed executed and waited for the sellers to attend there Jawahar Lal Wadhwa and Another Vs. Haripada Chakroberty, relied on behalf of appellants also does not help appellant''s case as in this case explaining the ratio of an earlier decision in International Contractors Ltd. Vs. Prasanta Kumar Sur., it was observed as under:

THE decision, however, nowhere lays down that where one party to a contract repudiates the contract the other party to the contract who claims specific performance of the contract is absolved from his obligation to show that he was ready and willing to perform the contract.

In Smt. Chand Rani (dead) by LRs. Vs. Smt. Kamal Rani (dead) by LRs., plaintiff was not willing to pay part of the sale consideration as per the agreement, and so it was held that there was no readiness and willingness to perform the contract on the part of the plaintiff and so was not entitled to specific performance. The question thus is whether the plaintiff was ready and willing to perform her part of the contract and readiness includes capacity to pay the balance amount payable under the contract. Learned Single Judge has held against her. It is contended that the finding is not reasonable and justified on the material on record. Firstly, the learned single Judge has wrongly drawn adverse inference against the plaintiff for her not appearing as a witness. Non appearing of plaintiff as her witness has been adversely viewed by the Learned Single Judge in this case. Drawing of adverse inference on the as is of non-appearance by the plaintiff in my view would not be justified in this case as it cannot be said that there was anything within the special knowledge of the plaintiff which was not known to her husband (Public Witness 1). In this case, there is nothing to show that the husband of the plaintiff could not be imputed with full knowledge of the facts and circumstances of the case as well as about the financial position of the plaintiff and also of their family. However, the matter does not end here. By agreement dated 25.7.1969 time was made the essence of the contract whereby it was agreed that the Vendor shall obtain the certified copies of all documents, papers etc. and also `no objection certificate'' from taxation authorities within 30 days and shall inform the vendee by registered Ad post about it and the vendee shall within 30 days of receipt of information shall get the sale deed executed and registered and the time was specifically agreed to be of the essence of the contract. The case of plaintiff is that the defendants never informed her about their having obtained such documents and certificate from taxation authorities. But it is not the case of the plaintiff that she had complained about it to the defendants about non-compliance of this condition in writing at any time before the filing of the suit which normally a buyer if anxious or ready and willing to purchase would do. There apparently was stoic silence on her part for almost three years before filing the suit. Whether the plaintiff was in financial position to pay the balance sale price? Except alleging abstract readiness and willingness on her part, plaintiff has not disclosed about means and resources available to her to finance the sale. In his statement PW.1 has stated as under:

AKHILESHWAR Prasad Narain Singh is my younger brother. My brother said to me and to my wife that he had sufficient amount in the Grindlays Bank which he would provide to us immediately for the payment of the balance consideration.

He has also produced copy of his statement of account in the said bank as Ex.P.13. This document was filed in Court on 20.7.1978 when statement of PW.1 was being recorded whereas the suit was filed on 24.7.1972 and issues were framed on 17.2.1975. Ex.P.13 shows that a sum of Rs. 2 Lacs was credited on 26.11.1969 and that amount was withdrawn on 25.2.1970. His brother has not appeared as a witness to corroborate him. There is no evidence to show how and under what circumstances this amount of Rs. 2 Lacs was deposited in the bank on 26.11.1969 and withdrawn within 3 months on 25.2.1970. This is the case of the plaintiff and also so deposed by PW1 that they had no information if the defendants had obtained requisite documents and certificates as per the agreement dated 25.7.1969. In the circumstances, it cannot be said or taken that this amount was arranged to finance the transaction in question. The balance sale price payable by the plaintiff was Rs. 1.30 Lacs. There is no Explanation why excess amount was deposited on 26.11.1969. There is also no Explanation if it was available after 25.2.1970, nor it was available on or after 25.9.1969 when the performance was to be made according to the second agreement whereby time was of the essence of the contract. In our view the learned Single Judge has rightly not placed reliance on this piece of evidence adduced by the plaintiff and ignoring it. PW1 has also stated that his wife and he had enough cash money to pay balance amount but in cross-examination he has admitted that his wife had no money in the bank from 1969 to 1970. He has not disclosed the means and resources available with them. He has then claimed that they had sufficient cash with them being old Zamindars. There is no material on record to show what estate or assets were available to them to raise money or to convert it into money or what arrangement had been made for financing and completing the sale. It is also not his case that any money was available in his own bank accounts like the money shown in Ex.P.13 in the bank account of his brother. Without disclosing the means and resources at their command his statement that he could arrange Rs. 3 Lacs in a week''s time cannot be believed. No witness or material to corroborate him in this respect has also been examined or produced. No doubt to prove himself ready and willing a purchaser has not necessarily to produce money or to vouch a concluded scheme for financing the transaction. But one has to show his bonafides and it cannot be left to the ipse dixit of the plaintiff and for that purpose it is necessary that the plaintiff to be entitled to the relief of specific performance should prove his financial position or capacity to finance the purchase price as held in His Holiness Acharya Swami Ganesh Dassji Vs. Shri Sita Ram Thapar, and Sukhbir Singh and others Vs. Brij Pal Singh and others, . In N.P. Thirugnanam (D) by L.Rs., Vs. Dr. R. Jagan Mohan Rao and others, it has been held that, "The continuous readiness and willingness on the part of the plaintiff is a condition precedent to grant the relief of specific performance. Right from the date of the execution till date of the decree he must prove that he is ready and has always been willing to perform his part of the contract. This circumstance is material and relevant and is required to be considered by the Court while granting or refusing to grant the relief. To adjudge whether the plaintiff is ready and willing to perform his part of the contract, the Court must take into consideration the conduct of the plaintiff prior and subsequent to the filing of the suit along with other attending circumstances. The amount of consideration which he has to pay to the defendant must of necessity be proved to be available. The Court cannot infer from the facts and circumstances the plaintiff is and was always ready and willing to perform his part of the contract." Learned counsel for the appellant has laid emphasis on the fact that it is admitted by DW1 that on 25.9.1969 the value of the property was over Rs. 6 Lacs and in such a situation the plaintiff would not have allowed such a profitable transaction to fail especially when she had paid very substantial part of the sale consideration. He has also contended that it was specifically agreed between the parties that sale deed could be executed in favor of the nominee of the plaintiff and for that purpose it would not have been difficult to find out such a nominee or a person to finance such a transaction. However, it is not the case nor there is any sale on record to show that the plaintiff had made any arrangement with any nominee who was ready and going to take the property and pay for it or had entered into arrangement with plaintiff to finance transaction to enable her to obtain the sale deed. This point was also urged before the learned Single Judge but was not accepted and in our view rightly. For the reasons given above we agree with the findings of the learned Single Judge on issue No. 2 and affirm the same. However, it cannot be said that defendants had not committed breach of the part of the agreement on their part. But that will not help the plaintiff. In the result we do not find any merit in this appeal and the same is hereby dismissed. However, the parties are left to bear their own costs. C.M.No.1572/95 This application under Order 22 Rule 10 read with Order I Rule 10 and Section 151 of the Civil Procedure Code. has been filed by M/s. Pawan Garg & Sons (HUF) on 12.10.1995 for being imp leaded in the appeal as appellant on the basis of an alleged assignment dated 10.3.1993 executed in their favor by the deceased appellant Smt. Bharti Rani Singh. The respondents are contesting it but the appellants are not contesting it. Learned counsel for the applicant has contended that the deceased appellant has assigned her rights under the agreement to sell dated 20.2.1961 and by virtue of three documents, namely (1) agreement to sell, (2) agreement, and (3) the General Power of attorney in favor of Pawan Garg, all dated 10.3.1993, executed by the deceased Smt. Bharti Rani Singh; The documents constitute transfer of right and interest by her in favor of applicant under the agreement to sell and the applicant as assignee is entitled to seek specific performance of the agreement to sell u/s 15 of the Specific Relief Act. As such the applicant is entitled to be substituted as appellant and to continue the appeal. Whereas learned counsel for respondent has contended that the deceased had no assignable rights or interest in the property nor the three documents constitute a valid assignment of the right and interest of the appellant or to prosecute the appeal. He has also contended that the alleged assignment is even otherwise not legal and valid inter-alia because it is akin to champertous in nature and that discretionary and equitable relief of specific performance would not be granted on its basis. The questions that arise are-

(1)Whether there is an assignment in favor of applicant?

(2)What right or interest has been assigned?

(3)Whether the applicant is entitled to be substituted as appellant?

Sub Rule (1) of Order 22 Rule 10 of the Civil Procedure Code. reads as under:

10(1)In other cases of an assignment, creation or devolution of any interest during the pendency of a suit, the suit may, by leave of the Court, be continued by or against the person to or upon whom such interest has come or devolved.

By virtue of Rule 11 of Order 22 this provision applies to appeals also. Learned counsel for the applicant has contended that the benefit of agreement to sell in question could be assigned and the assignee could enforce the contract and consequently, the applicant being assignee is entitled to be substituted. He has relied on (1) AIR 1928 174 (Privy Council) ; (2) Vishweshwar Narsabhatta Gaddada Vs. Durgappa Irappa Bhatkar, ; (3) Sinnakaruppa Gounder Vs. M. Karuppuswami Gounder and Another, ; (4) T.M. Balakrishna Mudaliar Vs. M. Satyanarayana Rao and others, (5) Rambaran Prosad Vs. Ram Mohit Hazra and Others, ; (6) Mrs. Saradambal Ammal Vs. E.R. Kandaswamy Goundar & Ors. Air 1949 Mad. 23; This legal position is not disputed by the learned Senior Advocate for the respondents. But his objection is that there is not valid assignment. Two documents, i.e., (1) agreement to sell, and (2) `agreement'' acknowledge receipt of consideration of Rs. 9,00,000.00 and purport to agree to transfer by the First Party of the decree that may be passed in her favor to the Second party and to achieve that object it is also agreed to between the parties that a General Power of Attorney will be executed by First Party in favor of Shri Pawan Garg, as karta of the Second Party, to prosecute the appeal on behalf of the First Party and after the decree is passed in favor of the First Party, to transfer the property in question in the name of the Second Party or to his nominees or assignees. The first party is the deceased appellant and the second party is the applicant. u/s 54 of the Transfer or Property Act a contract for sale of immovable property does not of itself create any interest in or a charge on such property. The First Party had no transferable right in the property in question by virtue of agreement to sell dated 20.2.1961 or the subsequent agreement dated 25.7.1969 in her favour. Thus neither the first document, i.e., the agreement to sell" which provides that "the First Party has agreed to transfer her rights in the property No. 13, Kautilya Marg" nor the Second document, i.e., "agreement" which provides that "the first party has already assigned in favor of second party her right in property would legally operate as transfer or assignment of any right or interest in the suit property in favor of the second party in praesenti. It was held in AIR 1931 203 (Privy Council) that it is well settled that where the estate or interest which a deed of assignment purports to assign has at the date of the deed no existence neither at law nor in equity can the assignment of such an interest operate according to his tenor. The General Power of Attorney dated 10.3.1993 has been executed by First Party in favor of Shri Pawan Garg as contemplated in the earlier referred to two documents authorising the latter to act as under:

...I authorise by above named attorney to prosecute the above said litigation with regard to the property in question, make a statement, engage any advocate, arrive at any settlement, sign any settlement or consent deed, file any application for execution of the decree which might be passed in my favour, assign the decree to any other person and to execute/sign any document required for such assignment of the decree, to file any appeal/revision in any court of law, to get sale deed executed in my favor through court of law or otherwise, to execute sign and register any conveyance/transfer deed qua the property in question and to receive any amount towards the sale consideration. To sell, mortgage, lease out, enter into any collaboration agreement with any builder and to deal with the property known as 13, Kautilya Marg in any manner after the same is transferred to my name.

This also shows that Shri Pawan Garg was to act for and on behalf of the First Party as her attorney to prosecute for her the suit/appeal and if the suit for specific performance was ultimately decreed either to assign the decree or to get sale deed in her favor and further authorising him to sell or otherwise deal with the said property after the same is transferred in her name. The applicant did not apply for impleadment after these documents were executed during the life-time of the deceased assignor or thereafter for over two years. She died on 12.5.1993 and her two legal representatives were substituted in her place on 17.8.1993. Long after her death this application was made on 12.10.1995. Before that both the legal heirs of the deceased appellant had also executed two separate Power of Attorneys dated 16.3.1994 and 15.3.1994 in favor for said Shri Pawan Garg giving him similar powers as were given by Smt. Bharti Rani Singh authorising Shri Pawan Garg to prosecute this appeal on their behalf. The aforesaid three Powers of Attorneys one executed by the deceased appellant and the two by her two legal representatives have also not been put to use by Shri Pawan Garg during the life time of the deceased appellant or after her death by appointing any advocate of his choice on behalf of the appellant(s) and the appellants continue to be represented by their own advocate who was also representing the deceased appellant earlier. All these circumstances would show that the intention of the parties was only to assign the benefit which the deceased appellant might obtain under the decree to be passed in the suit and the appeal was to be continued and prosecuted in the name of the appellant. It was held in M.T. Rajamanickam Chetty and Another Vs. T.R. Abdul Halim Sahib, that it is lawful for a plaintiff in a pending suit to assign the benefit which he may obtain under the decree to be passed in the suit but this does not give the assignee of the fruits of action the right to interfere in proceeding in the action. Order 22 Rule 10 CPC is a mere enabling provision and it is not obligatory that an assignee or a person in whose favor an interest is created or devolved during the pendency of the suit must necessarily be imp leaded under this provision. This application was not pressed at the time of commencement of arguments in the appeal but after several days of the commencement of the arguments by the learned counsel for the appellants. Full arguments were addressed by him and have been concluded. It is not the case that the appellants have colluded with the respondents. It will be a sheer waste of Court''s time to hear arguments again on behalf of the applicant also. The applicant is thus not entitled to be substituted or added as appellant. This application is accordingly dismissed with no order as to costs. Cm No. 1284/89 & Cm No. 1015/96 Cm No. 1284/89 has been filed by Shri S.M. Wahi, and Ms. Reeta Wahi under Order I Rule 10 Civil Procedure Code. for being imp leaded as parties, on the basis of compromise decrees dated 8.2.1994, and 15.12.1987 passed on agreements to sell executed by the co-owners. Subsequently, C.M. No. 10.15/96 has been filed by them under Order 6 Rule 17 Civil Procedure Code. seeking amendment in C.M. No. 1284/1989 inter-alia making amendment to covert the petition under Order 22 Rules 10 and 11 and Section 151 Civil Procedure Code. Both these applications were not pressed by the learned counsel for the applicants. No valid transfer during pendency of suit for specific performance could be made because of Section 52 of the Transfer of Property Act. There is also a restraint order in operation against respondents from alienating the property during pendency of this appeal. Even otherwise, no sale deed in respect of the suit property or any share therein has been executed in favor of the applicants so far. As such right, title and interest in the property has not passed in the applicants. They are not thus entitled to be imp leaded or substituted as parties. These applications are also dismissed.