Pankaj Mithal, J.@mdashRam Singh had agreed to transfer his half share in the agricultural land Khasra No. 72 area 5.3 acre and Khasra No. 215 A and B area 17.5 acre total area 20.45 acre situate in village Kherat, district Mathura in favour of Sughar Singh for a total consideration of Rs. 56,000 after receiving an advance of Rs. 25,000 at the time of the agreement. The agreement was executed on 10.10.1976 but was not registered as at the relevant time there was no compulsion for getting such an agreement registered.
2, Later Plaintiff Sughar Singh, instituted a suit for specific performance of the above agreement to sell against Ram Singh arraying him as Defendant No. 1 and Hari Singh, Rakshapal, Raghuvir and Goverdhan as the other Defendants 2 to 5 being the subsequent purchasers of the aforesaid land vide sale deed dated 23.6.1984.
3. The aforesaid suit was filed on the allegation that under the aforesaid unregistered agreement to sell Defendant No. 1 had agreed to transfer his half share in the said land to the Plaintiff for a sum of Rs. 56.000. He had received Rs. 25.000 in advance at the time of the agreement and it was agreed that the sale deed would be executed within a period of two years. On the request of Defendant No. 1 the aforesaid period was extended by three years upto 31.10.1981 vide document dated 30.9.1978 and again for a further period of three years upto 31.10.1984 vide document dated 29.9.1981. Defendant No. 1 despite notice to execute the sale deed failed to turn up and execute the sale deed though the Plaintiff was always ready to fulfil his part of his obligation and to get the sale deed executed in terms of the agreement. The Plaintiff on acquiring knowledge that Defendant No. 1 is likely to transfer the aforesaid land in favour of Defendant Nos. 2 to 5 even got published in the news paper Amar Ujala dated 24.5.1984 a notice cautioning the public at large not to deal with the aforesaid land in view of the agreement existing in his favour but even then on 23.6.1984 Defendant No. 1 executed the sale deed transferring the aforesaid land in favour of Defendant Nos. 2 to 5.
4. The suit was contested by the Defendant No. 1 by filing a written statement denying the very execution of the agreement dated 10.10.1976 as well as the two documents of alleged extension of time dated 30.7.1978 and 29.9.1981. He also denied having received a sum of Rs. 25,000 at the time of agreement and Rs. 8,000 and Rs. 7,000 respectively at the time of alleged two extensions as part of the sale consideration.
5. Defendants No. 2 to 5 by a separate written statement contended they are the bona fide purchasers in good faith of the aforesaid land for value vide registered sale deed dated 23.6.1984. They had no knowledge of the agreement dated 10.10.1976.
6. The suit was decreed by the court of first instance vide judgment and order dated 7.2.1987 and Defendant No. 1 together with Defendant Nos. 2 to 5 were directed to execute the sale deed of the aforesaid land in favour of the Plaintiff after receiving the balance sale consideration of Rs. 16,000. The Court held that the agreement and the documents granting two extensions of time for executing the sale deed were validly executed by Defendant No. 1 ; he had received a sum of Rs. 25,000, 8,000 and 7,000 respectively total Rs. 40,000 as part of sale consideration: the Plaintiff was always ready and willing to get the sale deed executed ; and Defendant Nos. 2 to 5 have not purchased the aforesaid land bona fidely.
7. All the Defendants disturbed by the aforesaid Judgment, order and decree of the first court preferred an appeal, which was dismissed vide judgment and order dated 24.8.1998. During the pendency of the appeal Defendant No. 1 Ram Singh died but the appeal was continued by Defendant Nos. 2 to 5.
8. Aggrieved by both the aforesaid judgments and orders of the courts below, Defendant Nos. 2 to 5 preferred Second Appeal No. 1388 of 1998 before this Court. The above appeal was decided by this Court on 26.10.2007. The judgment and order of the lower appellate court dated 24.8.1998 was set aside. The matter was remanded to the lower appellate court for decision afresh on issue No. 3 with regard to readiness and willingness of the Plaintiff to get the sale deed executed and for framing an additional issue with regard to the effect of non-registration of the two documents granting extension of time to execute the sale deed in view of the amendment made in Section 54 of the Transfer of Property Act vide U.P. Act No. 57 of 1976 and to decide the same in accordance with law.
9. In pursuance to the remand order, the lower appellate court after framing an additional issue as directed, vide impugned judgment and order dated 24.7.2010 has again dismissed the appeal of the Defendants. Lower appellate court has held that the Plaintiff was always ready and willing to perform his part of the obligation under the agreement and to get sale deed executed and that the two documents granting extension of time for getting the sale deed executed were only acknowledgments and as such required no registration.
It is in the above background, Defendant Nos. 2 to 5 have preferred this second appeal again.
10. The Plaintiff had entered into a caveat. On the presentation of this second appeal both contesting parties agreed for the final disposal of the appeal at the threshold. Accordingly, I have heard the appeal finally with the consensus of counsel for the parties on all the points raised.
11. Sri B.D. Mandhyan, ably assisted by Sri Om Prakash, learned Counsel for the Defendants/Appellants has made three submissions. First, the Plaintiff/Respondent was not continuously ready and willing to get the sale deed executed in terms of the aforesaid agreement and as such in view of Section 16(c) of the Specific Relief Act (hereinafter referred as Act) the agreement cannot be enforced: secondly, the documents granting extensions of time for executing the sale deed pursuant to the aforesaid agreement are in the nature of fresh agreements and as such invalid for want of registration which was made mandatory in U.P. with effect from 1.1.1977 ; and thirdly, the courts below have ignored the provisions of Section 20 of the Specif Relief Act in decreeing the suit for specific performance.
12. Sri Arvind Srivastava, on the other hand on behalf of the Plaintiff/Respondent defending the judgments and orders of the courts below submitted that the matter stands concluded by findings of fact ; the extensions granted on 30.9.1978 and 29.9.1981 were only acknowledgments and since the agreement itself was unregistered, they were also not required to be registered: and that no issue with regard to exercise of discretionary power u/s 20 of the Specif Relief Act was framed and the above point not having been raised in the courts below cannot be permitted to be argued for the first time in the second appeal.
13. It may be pertinent to note that the findings on issues No. 1 and 2, i.e., with regard to due execution of the agreement dated 10.10.1976 and the documents dated 30.9.1978 and 29.9.1981 granting extension of time to execute the sale deed as well as the receipt of Rs. 40.000 as part of the sale consideration have become final and conclusive and are no longer res integra. They were not even disturbed by the High Court in the earlier appeal as the remand was on the limited ground for fresh consideration of issue No. 3 and an additional issue with regard to the effect of non-registration of the two documents granting extensions of time.
14. Let me first consider the question whether the documents dated 30.9.1978 and 29.9.1981 by which the time of executing the sale deed in terms of the agreement dated 10.10.1976 is said to have been extended, were required to be registered.
15. Admittedly, at the relevant time when the above agreement was executed, there was no requirement in law to get an agreement of sale of any immovable property registered. The agreement provided for execution of sale deed within two years subject to certain other conditions. Subsequently, as it was not possible to execute the sale deeds within the time so stipulated, the parties by executing documents dated 30.9.1978 and 29.9.1981 agreed for getting the sale deed executed latest by 31st October, 1984 and at the time of executing the above two documents a further sum of Rs. 8,000 and Rs. 7,000 respectively were paid to Defendant No. 1. In all other respects the terms and conditions of the agreement remained unaltered. The above documents as such only acknowledges the fact of receiving further part of the sale consideration and the consent of the parties to get the sale deed executed within the extended time. In such a situation the aforesaid documents are not in the nature of a fresh agreements so as to constitute substitution of the original agreement to sell dated 10.10.1976. The original agreement was not required to be registered, therefore, anything done in furtherance thereof also does not require any registration irrespective of the fact that in the meantime with effect from 1.1.1977 registration of agreement to sell an immovable property worth over Rs. 100 was made mandatory vide U.P. Act No. 57 of 1976.
16. The ruling of the Allahabad High Court in
17. The other authority cited in this connection is a decision of the Supreme Court in S. Saktivel v. M. Venugopal Pillai and Ors. 2000 (91) RD 615 (SC): 2000 (4) AWC 2.42 (SC) (NOC). This authority simply states that terms of registered document cannot be altered, varied or rescinded otherwise than by a subsequent registered document. The necessary corollary of it is that the terms and conditions of an unregistered document can be altered by an unregistered document. In the present case subsequent documents are not even documents altering or varying the conditions of the earlier agreement. Thus, the aforesaid authority is also of no help to the Defendants/Appellants.
18. Now, I take up the question of compliance of Section 16(c) of the Act, which requires that a specific performance of a contract cannot be enforced in favour of a person who fails to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract.
19. The submission of Sri Mandhyan, is that it is mandatory for the Plaintiff not only to aver but also to prove that he was always ready and willing to perform his part of the agreement. The Plaintiff only averred-and proved his readiness and not having averred that he was also willing to perform the terms of the contract, the courts below committed a gross illegality in decreeing the suit contrary to the bar placed by Section 16(c) of the Act.
20. On the submissions of the parties, the substantial question of law in this regard which has arisen is whether in the absence of specific averment and proof of ''willingness'' on part of the Plaintiff to comply with his obligations under the agreement, the same could have been enforced in view of the bar contained in Section 16(c) of the Act.
The parties were put to notice on the above question of law and both of them readily addressed the Court on it.
21. I have gone through the entire plaint and find that the Plaintiff in paragraph 4 of the plaint has only stated that he was always ready and is even ready as on date to perform his part of the contract. The contents of paragraph 4 of the plaint" for the sake of convenience are reproduced here-inbelow:
22. The Plaintiff in the aforesaid paragraph 4 of the plaint has only stated that he was always ready to perform his part of the agreement. He has not expressed his willingness to fulfil his obligations. In other words, he has not specifically averred that he was always "ready and willing" to abide by the terms and conditions of the agreement.
23. Section 16(c) of the Specific Relief Act postulates that specific performance of a contract cannot be enforced in favour of a person who fails to aver and prove that he has performed or has always been ''ready and willing'' to perform the essential terms of the contract which are to be performed by him. The above provision is crystal clear. It provides for making a categorical averment about the party''s readinesses and willingness to perform his part of the terms and conditions and also to prove it. The expression used is "ready and willing" which is of great significance. It is a combination of two words ''ready'' and "willing" which may appear to carry the same meaning but are not synonyms.
24. The simple dictionary meaning of the word ''ready'' is preparedness for the moment or to be equipped with what is needed ; whereas ''willing'' denotes inclination to do a thing voluntarily or without reluctance. So readinesses connotes physical state of affairs and willingness on the other hand is linked with the mental state of things. To put it more lucidly, the expression "ready and willing" implies capacity to act as well as inclination to do a thing. e.g. Army may be ready for a war but may not be willing to go for a war.
25. In view of above difference in the meaning of the two words, the use of the word ready alone may not be sufficient compliance of the mandatory requirement of Section 16(c) of the Act which postulates specific averment both with regard to readinesses and willingness.
26. The essentials of pleadings are provided in Order VI of CPC Rule 3 of the said order stipulates that forms as prescribed shall be used for all pleadings.
27. Format of plaints for suits for specific performance of an agreement are provided in Forms 47 and 48 of Appendix A to the CPC The aforesaid forms clearly provide for making an averment that the Plaintiff has been "and still is ready and willing specifically to perform the agreement on his part" or that "the Plaintiff is still ready and willing to pay the purchase money of the said property to the Defendant".
28. The aforesaid forms of the suit for specific performance as provided in Appendix A to the CPC clearly demonstrate that the averment must be to the effect that the Plaintiff is always and is still "ready and willing" to perform his part of the agreement, which is also a mandatory requirement of Section 16(c) of the Act failing which no contract of specific performance is enforceable.
29. The pleadings of the plaint in the present case are not strictly in consonance with the prescribed Forms 47 and 48 of Appendix A to the CPC and lacks the specific averment of ''willingness'' of the Plaintiff to carry out his obligation as per the agreement.
30. The Court of first instance in deciding issue No. 3 in this regard recorded a very cursory finding in favour of the Plaintiff without considering the mandate of provision of Section 16(c) of the Act. It incorrectly interpreted the language used in paragraph 4 of the plaint to mean that the averment is to the effect that the Plaintiff was always and is still ready and willing to perform his part of the agreement for the purposes of execution of the sale deed. The above averment in the light of the statement of the Plaintiff was taken to be proved though there is no averment expressing ''willingness'' in the plaint. The averment in the plaint is only with regard to readinesses and there is no averment therein expressing willingness to perform the conditions of the agreement. Now the lower appellate court in dealing with the aforesaid issue has simply stated that as the Plaintiff has averred about his readinesses and has also proved his readinesses through his statement the non use of the word ''willingness'' in the pleadings or its proof by evidence would not be material. Thus, it is apparent not only from the plaint allegations but from the findings of the lower appellate court that the Plaintiff had only averred and proved about his readinesses without making any averment with regard to his willingness and proving the same.
31. In the case of Azhar Sultana v. B. Ramamani and Ors. 2009 (2) ARC 370: 2009 (2) AWC 1546 (SC), it has been clearly laid down that Section 16(c) of the Act postulates continuous readinesses and willingness on the part of the Plaintiff and it is condition precedent for obtaining a decree of specific performance of a contract.
32. The Supreme Court in the case of Bal Krishna and Anr. v. Bhagwan Das and Ors. 2008 (2) ARC 893 : 2008 (2) AWC 1760 (SC), reiterated that compliance of requirement of Section 16(c) of the Act is mandatory and in its absence the suit of specific performance cannot succeed. It further lays down that the first requirement u/s 16(c) of the Act is that the Plaintiff must aver in the plaint his readinesses and willingness to perform his part of the obligation under the agreement and thereafter to prove those averments made in the plaint.
33. In
34. In another case Uma Bai and Anr. v. Nil Kanth Dhondiba Chavan and Anr. 2005 (2) ARC 129 : 2005 (3) AWC 2948 (SC), the Supreme Court while considering the mandatory requirement u/s 16(c) of the Act held that in terms of Forms 47 and 48 contained in Appendix A of the CPC the Plaintiff must plead that "he has been and still is ready and willing specifically to perform the agreement on his part of which the Defendant has notice" or "the Plaintiff is still ready and willing to pay the purchase money of the said property to the Defendant."
35. His Lordship of this Court as far back as in the year 1974 in the case of
36. In Ouseph Varghese (supra) the Apex Court had observed as under:
...A suit for specific performance has to conform to the requirements prescribed in Forms 47 and 48 of the 1st Schedule in the Code of Civil Procedure. In a suit for specific performance it is incumbent on the Plaintiff not only to set out agreement on the basis of which he sues in all its details, he must go further and plead that he has applied to the Defendant specifically to perform the agreement pleaded by him but the Defendant has not done so. He must further plead that he has been and is still ready and willing to specifically perform his part of the agreement. Neither in the plaint nor at any subsequent stage of the suit the Plaintiff has taken those pleas. As observed by this Court in Pt. Prem Rai v. D.L.F. Housing and Construction (Private (Ltd.) Civil Appeal No. 37/66, decided on 4.4.1968,
37. In view of catena of the aforesaid authorities as well as the plain and simple language used in Section 16(c) of the Act, it was incumbent upon the Plaintiff to first plead specifically by making an averment with regard to his readinesses and willingness to perform his obligations under the agreement and then to prove the same by leading cogent evidences so as to enforce the contract. In the event such specific averments as contemplated by Section 16(c) of the Act and as laid down in Forms 47 or 48 of Appendix A of Schedule 1 of the CPC are not made the Court is duty bound to refuse the relief of specific performance without even going into the merits of the evidence to record a finding thereof.
38. In the present case this is what is exactly lacking in the pleadings which has escaped notice of the Court of first instance and though raised before the lower appellate court brushed aside casually by treating averment of readinesses alone to be sufficient expression of the willingness also.
39. I could have stopped here but in view of
40. I have perused the entire plaint. Apart from the averment made in paragraph 4 of the plaint about readinesses no other averment in this regard has been made by the Plaintiff. In paragraph 8 of the plaint it has casually been stated that a notice by registered post was also given in respect of the agreement cautioning Defendant No. 1 not to execute any sale deed of the disputed land to any one else. The plaint does not even contain any averment that the Plaintiff ever required Defendant No. 1 to attend the office of the Sub-registrar to execute the sale deed within time agreed. The plaint as such even in its entirety does not give an impression that the Plaintiff ever expressed that he is ''ready and willing'' to perform his part of the agreement to get the sale deed executed. The courts below simply on the basis of averment made in paragraph 4 of the plaint and the statement of the Plaintiff that he was ready to get the sale deed executed inferred and held that he was always ''ready and willing'' for the sale deed.
41. It may be noted that Order VI, Rule 3, CPC provides that forms of pleadings as laid down in Appendix A, CPC shall be used when applicable as nearly as may be for all pleadings. The use of the word shall'' therein makes it mandatory even though procedural for the Plaintiff to make averments as far as possible in the Form prescribed particularly when Section 16(c) of the Act also mandates for making such a specific averment. Thus, the absence of specific averment as contemplated by Section 16(c) of the Act and as prescribed by Forms 47 and 48 of Appendix A to the CPC coupled with the fact that no such intention of the requisite pleadings is otherwise can be gathered even from the attending circumstances, I am of the view that the suit has to fail for non-compliance of pleadings as per Section 16(c) of the Act. The findings to the contrary recorded by the courts below are not only illegal but suffers from wrong application of principles of law. Accordingly, findings on issue No. 3 as returned by the lower courts are reversed.
42. The provision of Section 20 of the Specific Relief Act is also important in deciding a suit for specific performance. It provides that Court is not bound to grant relief of specific performance only for the reason that it is lawful to do so and that he has sufficient discretion in the matter which may be exercised not in an arbitrary manner but on sound and reasonable basis guided by judicial principles. A simple reading of the aforesaid provision indicates that it is a duty cast upon the Court while deciding a suit for specific performance whether to grant a decree of the specific relief or not on the basis, of the attending circumstances. In Ganesh Shet v. Dr. C.S. J.K. Shetty and Ors. 1998 (33) ALR 512: 1998 (3) AWC 2.152 (SC) (NOC), Apex Court has clearly observed that the relief for specific performance is discretionary in nature and is not given merely because it is legal to do so. It further lays down that in a suit for specific performance the evidence and proof of the agreement must be absolutely clear and certain. Similar view has been expressed by the Supreme Court in the Case of
43. In the instant case none of the courts below have exercised discretion u/s 20 of the Specif Relief Act. The suit has been decreed after holding that there existed an agreement whereunder the Defendant was enjoined upon to execute the sale deed on performance of certain conditions by the Plaintiff which he was always ready and willing to perform. Such an approach of the courts below is contrary to the mandate of Section 20 of the Specific Relief Act and cannot be approved of.
44. Sri Arvind Srivastava, learned Counsel for the Plaintiff/Appellant in this connection has submitted that no issue with regard to exercise of discretion u/s 20 of the Specif Relief Act was formulated and therefore it was not obligatory upon the courts below to have decided any aspect of the matter on which issue had not been framed. The argument may be attractive but cannot be accepted for two reasons. The exercise of power u/s 20 of the Specif Relief Act is statutory which obliges the Court to consider the various factors necessary for granting a decree for specific performance, at least those enumerated in the provision itself though the same may not be exhaustive. Secondly, the exercise of discretion u/s 20 of the Specif Relief Act is ordinarily covered in the general issue as to what relief the Plaintiff is entitled to in the suit and accordingly it can not be said that there was no issue on the point and theCourts were not obliged to record any finding in this connection. The issue No. 5 of the suit amply covers the above aspect but none of the courts below cared to weigh the relevant factors as contemplated by Section 20 of the Specif Relief Act while granting the decree of specific performance.
45. In a recent decision of the Supreme Court in Azhar Sultana v. B. Ramamani and Ors. 2009 (2) ARC 370: 2009 (2) AWC 1546, it has been observed that grant of decree of specific performance of contract is discretionary and the conduct of the parties assumes great significance and therefore interest of justice would be subserved if the Court directs for refund of the sale consideration received in advance instead of specific performance of the decree in exercise of its discretionary jurisdiction u/s 20 of the Act.
46. It is tirite to note that the applicability or compliance of Section 20 of the Act is a pure legal question and as such can be permitted to be raised even in second appeal for the first time in view of the ratio laid down in
47. In view of the above discussion I am of the considered opinion that in the present case the substance of the pleadings are not in confirmoty with the Form set out and prescribed under Appendix ''A'' read with Order VI, Rule 3, CPC and even otherwise do not constitute specific averment expressing ''readinesses and willingness'' on the part of the Plaintiff to comply with his obligation under the agreement and as such he is not entitled to enforce the same in view of bar contained in Section 16(c) of the Act. Moreover, there is failure on part of the courts below from exercising jurisdiction vested in them by Section 20 of the Specific Relief Act and as such the impugned Judgments and orderscannot be sustained in law. However as Defendant No. 1 had received part of the sale considerationamounting to Rs. 40,000, the same is liable to be refunded to the Plaintiff. The Defendant No. 1 having died and the Defendants No. 2 to 5 having stepped into his shoes by virtue of the sale deed dated 23.6.1984 and since they are not found to be the bona fide purchasers, they are liable to refund the aforesaid amount of Rs. 40,000 to the Plaintiff with interest @ 8% per annum with effect from 23.6.1984 till its payment.
48. Accordingly, I allow this second appeal, set aside the judgment and orders dated 24.7.2010 and 7.2.1987 passed in Civil Appeal No. 183 of 1997 and O.S. No. 254 of 1984 respectively and the consequential decree and simultaneously dismisses the suit of the Plaintiff for the specific performance of the agreement in question with the direction to the Defendants No. 2 to 5 (Appellants) to refund a sum of Rs. 40,000 received as part of sale consideration to the Plaintiff within one month with interest @ 8% with effect from 23.6.1984.
Parties to bear their own costs.
