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2000 DIGILAW 571 (MAD)

Sankaran v. Kuppa Gounder

2000-06-16

B.AKBAR BASHA KHADIRI

body2000
Judgment :- 1. The second defendant who has lost before the first Appellate Court has come forward with the instant Second Appeal. 2. This appeal has arisen in this way: — Subbarayan, the first defendant before the trial Court is admittedly the owner of the property in dispute. According to the plaintiff, Kuppa Gounder, Subbarayan the first defendant had entered into an agreement with him for sale of the property to the plaintiff for a consideration of Rs. 75 per cent extent, the total extent of the property being 25 cents. According to him, Rs. 300/- was paid as advance on the date of the agreement and one months time was fixed for payment of balance of Rs. 1,575/- and to complete the sale transaction. According to the plaintiff, the first defendant committed breach of contract. He had not come forward to execute the sale deed. On the other hand, he had sold the property to the second defendant on 6.9.1980. The second defendant Sankaran had purchased the property with full knowledge of the existence of the agreement dated 4.9.1980 in favour of the plaintiff. Pleading so, the plaintiff has instituted O.S. No. 672 of 1980 on the file of the District Munsif Court, Dindivanam for the relief of specific performance. 3. The first defendant countered the case of the plaintiff contending that he had not entered into any agreement for sale with the plaintiff; that he had borrowed Rs. 200/- from the plaintiff in driplets. The plaintiff insisted for return of the money. By then, the first defendant had made arrangement to sell the property to the second defendant and therefore, he informed the plaintiff that he would clear the debt as soon as the sale consideration is received from the second defendant, but the plaintiff insisted for execution of a promissory note for due repayment of loan and accordingly, obtained his signature in a revenue stamps affixed in blank paper and with the help of which, he had created the impugned agreement. According to the first defendant, the plaintiff had not even served a notice on him for the defendant to put forth his objection before the plaintiff can institute a suit. 4. The second defendant countered the case of the plaintiff contending that he had purchased 25 cents of the suit property for the consideration of Rs. According to the first defendant, the plaintiff had not even served a notice on him for the defendant to put forth his objection before the plaintiff can institute a suit. 4. The second defendant countered the case of the plaintiff contending that he had purchased 25 cents of the suit property for the consideration of Rs. 1,600/- from the first defendant, that the sale deed was executed on 2.9.1980 and it had been registered on 6.9.1980, and that he is a bona fide purchaser for value without notice of any defect in title. 5. The trial Court, after enquiry, held that ExA.1 agreement for sale is not a true, valid and genuine document, on the other hand Ex.B.1 sale deed is a genuine sale deed which had passed on title in the suit property to the second defendant and accordingly, dismissed the suit. 6. On appeal, the Appellate Court held that the plaintiff had examined four witnesses to prove the agreement and their evidence had not been controverted, and that ExA.1 is a genuine agreement, whereas Ex.B.1 sale deed is a later creation to defeat Ex.A.1 agreement and accordingly, reversed the findings of the trial Court, which has led to the filing of the instant Second Appeal by the second defendant. 7. Ratnam, J. as he then was, formulated the following point: “whether the Lower Appellate Court was right in its conclusion that the appellant is not a bona fide purchaser for value, is the substantial question of law that arises for consideration in this Second Appeal.” 8. Again, at the time of the argument, the learned counsel for the appellant/second defendant submitted that the plaintiff had not pleaded and proved his readiness and willingness, which is sine quo non for grant of relief of specific performance. The learned counsel submitted that this requirement being a statutory requirement amounts to a question of law and can be raised at the Second Appeal stage also. 9. To consider the first question, whether or not the second defendant/appellant herein is a bona fide purchaser, it has become necessary to refer to ExA.1 agreement. Ex.A.1 agreement is not written on stamp paper. Of course, law does not require that an agreement for sale should always be concluded under a written agreement. It can even be an oral agreement, because the agreement by itself does not pass any title to the instant purchaser. Ex.A.1 agreement is not written on stamp paper. Of course, law does not require that an agreement for sale should always be concluded under a written agreement. It can even be an oral agreement, because the agreement by itself does not pass any title to the instant purchaser. But, once a document is reduced to writing, it should be in the proper form. The instant agreement is written on a white sheet to which two 20 paise revenue stamps are affixed. 10. According to the second respondent/first defendant, he had incurred a debt with the first respondent/plaintiff and the first respondent/plaintiff insisted for execution of a bond or promissory note to secure the debt and accordingly, he has subscribed his signature in the blank paper in which the revenue stamps were affixed. Though the first respondent plaintiff denies creation of a false agreement, he admits that the second respondent/first defendant had to pay Rs. 200/- to him. If really, the second respondent/first defendant approached the first respondent/plaintiff for sale of his property and the first respondent/plaintiff had the inclination to buy the property, he would have had the agreement written on a stamp paper or atleast on a blank paper, but not on a paper in which revenue stamps are affixed. One should not lose the sight of the general practice that exists in this part of the country regarding execution of the agreement and other documents. Generally, signatures are obtained on revenue stamp papers only to evidence a debt or a receipt and not to have an agreement written. I hold that the trial Court has rightly held that Ex.A.1 is a created document. It is unfortunate that the first Appellate Court has been swayed away by the fact that the first respondent/plaintiff had examined three attestors. It is needless to point out that evidence has to be weighed and not counted. The trial Court has given convincing reason as to why Ex.A1 cannot be accepted as a true document. Once when ExA1 goes off, then the question of readiness and willingness would not at all arise. 11. The trial Court has held that the second respondent/first defendant had executed a sale deed in favour of the appellant/second defendant on 2.9.1980 and the document was registered on 6.9.1980. Once when ExA1 goes off, then the question of readiness and willingness would not at all arise. 11. The trial Court has held that the second respondent/first defendant had executed a sale deed in favour of the appellant/second defendant on 2.9.1980 and the document was registered on 6.9.1980. Law requires that a document which requires registration if written and concluded, (can be registered) within a period of four months from the date of execution. After all Ex.B.1 had been executed on 2.9.1980 and registered on 6.9.1980, 2.9.1980 happened to be Tuesday and 6.9.1980 was Saturday. What has weighed in the mind of the Appellate Court is that the document having been written on 2.9.1990, there was no reason as to why the same was not registered on the same date. The Appellate Court has also considered this aspect as in Ex.B.1, there are recitals to the effect that consideration has been passed on 2.9.1980 itself. But, both D.W.1 and D.W.2, the vendor and vendee, have clearly stated that at the time when the document was written, the purchaser had sold certain quantity of paddy to the agricultural committee and he had a bill with him which was ready for encashment. According to them, the bill was encashed on 619.1980 and therefore, the consideration was paid on 6.9.1980 and the sale transaction was completed. When the four days delay in execution and registration has been explained, the explanation has been rightly accepted by the trial Court, whereas the Appellate Court has gone astray in doubting the genuineness. The trial Court has rightly held that the second defendant/appellant herein is a bona fide purchaser for value without notice of defect in title. 12. Coming to the question of readiness and willingness, the requirement under Section 16(c) of the Specific Relief Act is mandatory, in that the first respondent/plaintiff must aver and prove that the readiness and willingness to have the transaction completed. This requirement is a mandatory requirement of law and it is of two folds: — (i) the plaintiff must aver in the plaint: and (ii) he must prove by the evidence that he has always been ready and willing to perform his part of the contract.’ The preparedness may not, however, be a mere verbal show of readiness to do his part. The first respondent/plaintiff need not go about jingling money to demonstrate his capacity to pay the purchase price and that what the first respondent/plaintiff has to do in such a situation is, to be ready and willing to purchase the property when time for doing so comes and to have means to arrange for payment of the consideration payable by him. 13. The requirement of readiness and willingness being a question of law, even the fact that the defendants have not raised any plea to that effect in the written statement, nor was there any issue, the mandate the statute requires is that the first respondent/plaintiff must aver in the plaint and must give proof of the fact that he was and has been ready and willing to perform his part of the contract. The phraseology ‘readiness and willingness’ refers to two different factors, viz. (i) readiness and (ii) willingness. Though a person may be willing, yet may not be able to do what he wills, he cannot be said to be ready to do it. So also, a person may possess of that is necessary to do an act, he may be ready, but if a will to do is not there, his willingness will be lacking. In the instant case, by filing the suit, the first respondent/plaintiff has expressed his willingness. But the question is whether he” has proved readiness. I have already pointed out that the first respondent/plaintiff need not go about the jingling money to demonstrate his readiness. But we have to find out from the circumstances whether the first respondent/plaintiff had offered and proved his readiness. In the plaint, the first Tamil respondent/plaintiff has pleaded It is doubtful “whether such averment would be sufficient to hold that the first respondent/plaintiff has pleaded readiness and willingness. Even holding so if we analyse the evidence, it is clear that the first respondent/plaintiff had not let in any direct oral or documentary evidence to prove his readiness and willingness. Considering the oral evidence, none of the witnesses including the first respondent/plaintiff had ever stated that the first respondent/plaintiff was ready and willing to complete the transaction. Even holding so if we analyse the evidence, it is clear that the first respondent/plaintiff had not let in any direct oral or documentary evidence to prove his readiness and willingness. Considering the oral evidence, none of the witnesses including the first respondent/plaintiff had ever stated that the first respondent/plaintiff was ready and willing to complete the transaction. Considering this circumstance, absolutely there is no evidence to show that the first respondent/plaintiff ever attended the Sub-Registrars Office on any day, after intimating the second respondent/first defendant and waited for the second respondent/first defendant to attend the office to have the sale deed executed. There is no evidence that the first respondent/plaintiff had ever purchased necessary stamp papers to have the sale deed drafted. There is no oral evidence that the first respondent/plaintiff had necessary funds to pass the consideration. It should also be pointed out that the first respondent/plaintiff had not issued any notice to the second respondent/first defendant expressing his readiness and willingness to perform his part of the contract to invite an approval or denial from the second respondent/first defendant. In the absence of issuance of a notice, it cannot be inferred that the first respondent/plaintiff had expressed his readiness and willingness or even had the mind to have the contract completed. In the absence of proving readiness and willingness the first respondent/plaintiff cannot seek the equitable relief of specific performance. 14. I am satisfied that the trial Court has rightly analysed the evidence and came to the right conclusion that the first respondent/plaintiff had not established that he had entered into an agreement for sale with the second respondent/first defendant, for him to enforce the sale. Even if there had been a contract, it is evident that he had never been ready to have the contract performed. 15. The learned counsel for the first respondent vehemently argued that the question about the readiness and willingness could be raised only by the second respondent/first defendant, who purports to be a party to the agreement and the appellant herein who is a subsequent purchaser cannot raise such a plea. This question has been set at rest by the Apex Court in the decision reported in Ram Awadh (Dead) by Lrs. & ors. v. Achhaibar Dubey and anr. (J.T. 2000 (1) S.C. 535), wherein the Apex Court has referred to an earlier Judgment reported in Jugraj Singh & anr. This question has been set at rest by the Apex Court in the decision reported in Ram Awadh (Dead) by Lrs. & ors. v. Achhaibar Dubey and anr. (J.T. 2000 (1) S.C. 535), wherein the Apex Court has referred to an earlier Judgment reported in Jugraj Singh & anr. v. Labh Singh & ors. ( (1995) 2 SCC 31 ) in which it has been held as under: “That plea is specifically available to the vendor/defendant. It is personal to him. The subsequent purchasers have got only the right to defend their purchase on the premise that they have no prior knowledge of the agreement of sale with the plaintiff. They are bona fide purchasers for valuable consideration. Though they are necessary parties to the suit, since any decree obtained by the plaintiff would be binding on the subsequent purchasers, the plea that the plaintiff must always be ready and willing to perform his part of the contract must be available only to the vendor or his legal representatives but not to the subsequent purchasers.” 16. Their Lordships of the Supreme Court have differed with the view expressed in Jugraj Singhs case and have observed as under: 6. “The obligation imposed by Section 16 is upon the Court not to grant specific performance to a plaintiff who has not met the requirements of clauses (a), (b) and (c) thereof. A Court may not, therefore, grant to a plaintiff who has failed to aver and to prove that he has performed or has always been ready and willing to perform his part of the agreement the specific performance whereof he seeks. There is, therefore, no question of the plea being available to one defendant and not to another. It is op en to any defendant to contend and establish that the mandatory requirement of Section 16(c) has not been complied with and it is for the Court to determine whether it has or has not been complied with and, depending upon its conclusion, decree or decline to decree the suit. We are of the view that the decision in Jugraj Singhs case is erroneous.” 17. Therefore, it is now settled that even the purchaser can raise the plea of readiness and willingness, because it is a statutory plea which the first respondent/plaintiff is expected to establish de hors any plea by the defendants in this regard. 18. We are of the view that the decision in Jugraj Singhs case is erroneous.” 17. Therefore, it is now settled that even the purchaser can raise the plea of readiness and willingness, because it is a statutory plea which the first respondent/plaintiff is expected to establish de hors any plea by the defendants in this regard. 18. In the result, the Second Appeal is allowed, with the cost of the appellant through out. The judgment of the Appellate Court is set aside. The judgment of the Trial Court is restored.