Ram Khelawan v. Thakurdin — 1992 DIGILAW 1529 (ALL)

JUDGMENT A. B. Srivastava, J. 1. This is a defendant's second appeal directed against judgment and decree dated 22-10-1983 of the 1st Additional District Judge, Jaunpur, whereby he dismissed the first appeal of the defendant and confirmed the judgment and decree of the trial court in plaintiff's favour. 2. Briefly stated the facts relevant are that the plaintiff-respondent Thakurdin filed the suit with the allegation that he sold a plot of land measuring 53 acres to the defendant-appellant for a sum of Rs. 7 000/- by means of sale deed dated 16-5-1975. On the same day there took place an agreement between the parties stipulating that in case the plaintiff paid a sum of Rs. 7,000/- to the defendant within a period of six years, the defendant will execute a sale deed of the said plot in favour of the plaintiff and deliver possession to him. The terms of this agreement were reduced to writing by means of a deed of agreement dated 16-5-1975 The plaintiff thereafter arranged for the amount of Rs. 7,000/- as the expenses for execution of the sale deed and requested the defendant to accept the said amount of sale consideration and expenses and executed the sale deed in his favour, but the defendant paid no head. Ultimately the plaintiff gave a notice dated 22-8-1978 by registered post to the defendant which was personally served on him but he failed to comply with the same. The plaintiff has always been ready and willing to perform his part of the contract but the defendant failed in so doing, hence the suit was filed again with a prayer for specific performance of contract of sale on the terms and conditions incorporated in the deed of agreement. The defendant-appellant filed written statement denying that any agreement to reconvey the land in question to the plaintiff on payment of Rs. 7,000/- took place. He also denied the execution of the deed of agreement dated 16-5-1975 set up by the plaintiff and alleged that taking advantage of the illiteracy of the defendant the plaintiff obtained his thumb impression on a paper with a view to authorise the scribe of the sale deed dated 16-5-! 975 to receive the amount from the office of the sub-Registrar. The agreement appears to have been forged and fabricated on the said paper. The plaintiff never paid or tendered the amount of Rs. 975 to receive the amount from the office of the sub-Registrar. The agreement appears to have been forged and fabricated on the said paper. The plaintiff never paid or tendered the amount of Rs. 7,000/- or any expenses of execution and registration of sale deed, no notice was ever served on the defendant and there was no question of the defendant's failure to perform his part of any contract. The suit is barred by section 16 of the Specific Relief Act and is also not maintainable as the agreement was not registered. 3. The learned trial court decreed the suit of the plaintiff with a finding that the agreement as alleged by the plaintiff took place between the parties and the deed of agreement set up by the plaintiff was duly executed by the defendant. He also found that the plaintiff has always been ready and willing to perform his part of the contract, the suit was not barred by section 16 of the Specific Relief Act nor did the agreement for sale require registration. The first appellate court before whom the judgment was challenged, affirmed the same with a finding that the primary responsibility was upon the defendant appellant to execute the sale deed or to show his intention that he was willing to execrate the same, and in its absence the plaintiff could not be in a position to pay the amounts stipulated in the agreement to the defendant and in this view of the matter the plaintiff could not be held to have failed to perform his part of the contract. Aggrieved, this second appeal by the defendant. 4. In this appeal the findings of the two courts below to the effect that there was an agreement of reconveyance between the parties and the document dated 16-5-1975 evidencing such agreement was executed by the defendant-appellant has not been assailed. In deed it is also not open to the appellant to challenge the same, being a finding of fact. The contention of Shri G. N. Verma, the learned counsel for the defendant-appellant is that since as per the specific terms in the agreement of reconveyance dated 16-5-1975 the plaintiff was required to pay to the defendant a sum of Rs. In deed it is also not open to the appellant to challenge the same, being a finding of fact. The contention of Shri G. N. Verma, the learned counsel for the defendant-appellant is that since as per the specific terms in the agreement of reconveyance dated 16-5-1975 the plaintiff was required to pay to the defendant a sum of Rs. 7,000/- along with expenses of registration of sale deed, to entitle him to get the sale deed executed, and he did not pay such amount he himself was guilty of non-performance of his part of contract and consequently was not entitled to specific performance of the contract. 5. The contention on behalf of the plaintiff-respondent advanced by his learned counsel Shri R N. Singh is that besides there being clear averment in the plaint, to this effect, evidence led by the plaintiff as well as the circumstances, clearly establish that he has always been ready and willing to perform his part of the contract, that he also served a notice to the effect on the defendant before filing the suit and that within the time stipulated in the decree of the trial court he also deposited requisite amount in the court. He has also contended that the pleading and the evidence in its totality has to be looked into while considering the question of compliance or otherwise, of the requirements of section 16-C of the Specific Relief Act. 6. Taking up first the controversy regarding the stipulation, as to payment of sale consideration and expenses of registration, in the deed of agreement, there can be no dispute about correctness of the proposition advanced on behalf of the defendant appellant that parole evidence is not admissible when the terms of the agreement have been reduced to writing. This view finds support from the principles laid down In Henderson v. Arthur, 1907 K.B.D. 10. The intention of the parties in this regard has thus to be gathered from the document in question and not by any extraneous factor. A perusal of the relevant clause in the deed of agreement dated 16-5-1975 would go to show that in order to entitle to get the property in question reconveyed by the defendant, the plaintiff was required to pay to the defendant a sum of Rs. A perusal of the relevant clause in the deed of agreement dated 16-5-1975 would go to show that in order to entitle to get the property in question reconveyed by the defendant, the plaintiff was required to pay to the defendant a sum of Rs. 7,000/- along with expenses of registration of document- The term 'pay' in this context, would however, not necessarily mean actual payment being materialised!, because acceptance of the amount, or other wise, would depend upon the volition of the defendant. The duty cast upon the plaintiff respondent, thus, was to arrange and offer for payment to the defendant, the amount of sale consideration and the expenses of registration The performance of the contract by the defendant thus could not be resisted on the plea of want of actual prior payment. 7. In Giribala Dasi v. Kalidas Bhanja, AIR 1921 PC 71, there was an agreement that the lease cannot be granted until the prospective lessee paid off contain debts on the property. It was under these circumstances that the said agreement as to payment was held to be a condition precedent, liable to be fulfilled before the agreement to grant the lease could be enforced. 8. In Annalakshami Animal v. Shanmugam Pillal, AIR 1946 Mad. 47 , property sold was leased in favour of the seller, with an agreement of reconveyance, if the rent was paid regularly and there was also paid an additional amount agreed, before the last instalment of rent. While accepting belated payment of rent by the lessee it was made clear by the lessor that agreement to reconvey stood cancelled, because of non-fulfilment of the conditions of agreement. It was under these circumstances that the lessee was held not entitled to specific performance of the agreement. The facts of the present case however, do not bear parallel; to any of these two cases as the agreement was only to the effect that reconveyance would be made on payment of the amount stipulated. 9. It was under these circumstances that the lessee was held not entitled to specific performance of the agreement. The facts of the present case however, do not bear parallel; to any of these two cases as the agreement was only to the effect that reconveyance would be made on payment of the amount stipulated. 9. Now the contention on behalf of the defendant appellant is that even the evidence of the amount being available and offered or tendered to him, is totally missing in this case and while the learned trial court did not at all touch this Question despite specific denial by the defendant appellant, the first appellate court traversed in am entirely different arena by basing his conclusion in plaintiff-respondent's favour, on the factum of willingness to deposit the amount pursuant to the trial court decree. 10. It would be found from the record as well as the judgment of the two courts below that despite there being a plea on the part of the defendant appellant, regarding non-performance of his part of the contract by the plaintiff-respondent prior to the filing of the suit, no attempt was made by either of the two courts to record any specific finding on these questions The trial court without giving any reasons in this regard merely stated that the plaintiff had always been ready and willing to get the sale deed executed Although it was alleged on behalf of the plaintiff that a notice was also given to the defendant calling upon to execute the sale deed after accepting the amount of sale consideration and expenses of registration, and a carbon copy of notice dated 22-8-1978 and a postal receipt of the same was filed, but despite defendants specific denial of service of such notice the same was not proved by producing the acknowledgement, or any secondary evidence thereof. Under these circumstances the burden in this regard was not discharged by the plaintiff-respondent. The first appellate court also did not act differently in the matter, in so far as it has not arrived at a definite finding, that the plaintiff respondent offender tendered for payment to the defendant the amount of sale consideration and expenses of registration at any point of time before filing of the suit. Its observation that a notice to that effect was served on the defendant appellant is also based on no evidence. Its observation that a notice to that effect was served on the defendant appellant is also based on no evidence. The copy of the notice on record of the trial court also does not indicate that any specific date or time was fixed by the giver of the notice for receiving the payment and executing the sale deed, 11. It thus becomes clear that there was no legally admissible evidence on record to indicate that before filing the suit the plaintiff-respondent made any attempt to perform his part of contract by paying or tendering to the defendant appellant a sum of Rs. 7,000- consideration, and expenses of registration of sale deed. Strictly speaking as on the date of filing the suit, the right of the plaintiff-respondent to enforce the contract of sale thus, had not matured. However, in the peculiar circumstances of this case and the terms incorporated in the agreement the matter does not end here. 12. It would be found on a perusal of the deed of agreement dated 16-5-1975. the stipulation therein was, that the plaintiff would be entitled to pay the sale consideration and expenses of the registration the defendant- appellant within six years and to get the property reconveyed. The period available for performance of his part of contract to the plaintiff thus was upto 16-5-1982 In other words, if at: any point of time within this period the plaintiff had performed his part of the contract or was ready or willing to do so by paying or tendering the amount stipulated, he would have a right to enforce the contract of the reconveyance. In the instant case as the facts and circumstances would show the conditions aforesaid have been fully satisfied. The fact of filing of the suit in the trial court on 23-10-1978 would signify his readiness and willingness to perform his part of the contract and get the sale deed executed, at that point of time and during the pendency of the suit. This view finds support from the principles laid down in Prag Dutt v. Smt. Saraswati Devi, AIR 1982 Alld. 37.Relying on the observations of the Supreme Court in AIR1971 SC 1238, it has been laid down that the requirement of section 16(C) of the Specific Relief Act are not to be Interpreted narrowly and in a hyper technical manner. This view finds support from the principles laid down in Prag Dutt v. Smt. Saraswati Devi, AIR 1982 Alld. 37.Relying on the observations of the Supreme Court in AIR1971 SC 1238, it has been laid down that the requirement of section 16(C) of the Specific Relief Act are not to be Interpreted narrowly and in a hyper technical manner. IT is the substance of the matter which is of important If from the averments made in the plaint and surrounding circumstances it is established in substance that the plaintiff was, and remained throughout ready and willing to perform his part of the contract, it would not be proper to non-suit him on a verbal omission here and there. The institution of the suit for specific performance of contract and prosecution of the case with due diligence shows the readiness and willingness of the plaintiffs to perform teir part of the contract. In the present case the trial court on 5-2-1992 decreed specific performance directing the plaintiff to deposit the amount stipulated and the defendant to execute the sale deed within a month On appeal filed by the defendant vide order dated 20-2-1982, the operation of the said decree was stayed- The appeal was ultimately dismissed on 22-10-1983 directing the plaintiff respondent to deposit the amount within tea days. The said amount was actually deposited on 29-10-1983. This goes to clearly signify that the plaintiff respondent was possessed of the means, and also deposited the amount stipulated at the earliest opportunity, when the restraint on such deposit was withdrawn. This thus is ample proof of the fact of the plaintiff respondent being ready and willing to perform his part of the contract at the time of institution of the suit, and at all relevant point of time thereafter, and the right of specific performance though pre-mature on the eve of filing of the suit, had matured on account of his readiness and willingness as aforesaid on the date of institution of the salt sad also daring the pendency thereof. The learned Ist appellate court though not correct in its view that the burden in this regard was also on the defendant-appellant, was justified In its conclusion that the right of specific performance of contract was available under these circumstances to the plaintiff-respondent, and the claim was not barred under provisions of section 16-C of the Specific Relief Act. The learned Ist appellate court though not correct in its view that the burden in this regard was also on the defendant-appellant, was justified In its conclusion that the right of specific performance of contract was available under these circumstances to the plaintiff-respondent, and the claim was not barred under provisions of section 16-C of the Specific Relief Act. The suit for specific performance of contract was thus rightly decreed. There Is no force in this appeal. 13. The appeal is hereby dismissed. Costs easy. Appeal dismissed.