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2003 DIGILAW 1614 (PNJ)

Iqbal Singh v. Gurdev Kaur

2003-12-03

V.M.JAIN

body2003
Judgment 1. This Regular Second Appeal has been filed by the plaintiffs against the judgment and decree dated 12-1-1984 passed by the Addl. Distt. Judge, Faridkot, vide which the appeal filed by the defendants was allowed, the judgment and decree dated 9-11-1981 passed by the trial Court were set aside and the suit of the plaintiffs was dismissed. 2. Plaintiffs appellants had filed a suit for possession by specific performance of the agreement to sell dated 6-11-1978 in respect of sale of land measuring 10 kanals detailed in the heading of the plaint on payment of Rs. 15,000/- and that a sum of Rs. 10,000/- was paid as earnest money at the time of the execution of the said agreement to sell. It was alleged that Sarwan Singh was in hissedari possession of the suit land which was owned by him and other co-sharers and that he executed the aforesaid agreement dated 6-11-1978 or the sale of the suit land in favour of the plaintiffs for a sum of Rs. 15,000/- and a sum of Rs. 10,000/- was received by him at the time of the execution of the agreement and balance sum of Rs. 5,000/- was to be paid at the time of execution and registration of the sale deed for which purpose the last date was fixed as 1-7-1979. It was alleged that the plaintiffs were ready and willing to get the sale deed executed on the payment of remaining sale price. It was alleged that defendants are the legal heirs of Sarwan Singh as Sarwan Singh had died in between. It was further alleged that defendants had failed to perform their part of the contract even though they were approached for this purpose. In the written statement defendants denied that Sarwan Singh had ever executed any agreement to sell in favour of plaintiffs or had received any amount towards the earnest money. It was alleged that Sarwan Singh was a simpleton and had lost senses due to old age and that the plaintiffs were dominating over him and might have secured the agreement by exercising undue influence and/or by deception, as Sarwan Singh was also mentally deranged. On the pleadings of the parties the trial Court framed the following issues : "1. Whether Sarwan Singh deceased agreed to sell the land in dispute to the plaintiff vide agreement dated 6-11-1978. If so on what terms and conditions? On the pleadings of the parties the trial Court framed the following issues : "1. Whether Sarwan Singh deceased agreed to sell the land in dispute to the plaintiff vide agreement dated 6-11-1978. If so on what terms and conditions? OPP. 2. Whether the plaintiff has been ready and willing and is even now ready and willing to perform his part of the contract? OPP. 3. Relief. 3. After hearing both sides and perusing the record, the learned trial Court decided issue No. 1 in favour of the plaintiffs and held that Sarwan Singh had executed the agreement to sell dated 6-11 -1978 in favour of the plaintiffs for the sale of his land measuring 10 kanals for Rs. 15,000/- and had received Rs. 10,000/- as earnest money. Under issue No. 2 it was held that the plaintiffs were always ready and willing to perform their part of the contract and to make payment of Rs. 5000/-. In the result the learned trial Court vide judgment and decree dated 9-11-1981 decreed the suit of the plaintiffs for specific performance of the agreement to sell dated 6-11-1978 on payment of Rs. 5000/-. However, the appeal filed by the defendants was allowed by the learned Addl. Distt. Judge and the suit filed by the plaintiffs was dismissed. Learned Addl. Distt. Judge upheld the finding of the trial Court on issue No. 1 and held that Sarwan Singh had executed the agreement to sell dated 6-11-1978 in favour of the plaintiffs and had received Rs. 10,000/- as earnest money. However, the finding of the trial Court on issue No. 2 was partly reversed inasmuch the finding that the plaintiffs were ready and willing to perform their part of the contract was upheld but holding that plaintiffs had failed to prove that they had brought and tendered the balance amount of Rs. 5000/- to the defendants, it could not be said that the plaintiffs had discharged the onus of issue No. 2. According, in view of the finding on issue No. 2, judgment and decree of the trial Court were set aside and the suit of the plaintiffs was dismissed. Aggrieved against the same, plaintiffs filed the present Regular Second Appeal. 4. I have heard the learned counsel for the parties and have gone through the record carefully. 5. According, in view of the finding on issue No. 2, judgment and decree of the trial Court were set aside and the suit of the plaintiffs was dismissed. Aggrieved against the same, plaintiffs filed the present Regular Second Appeal. 4. I have heard the learned counsel for the parties and have gone through the record carefully. 5. After hearing the learned counsel for the parties and perusing the record, in my opinion, the following substantial question of law arises for determination in this appeal : Whether it was necessary for the plaintiffs to allege and prove that they had brought and tendered the balance sale consideration of Rs. 5000/- to the defendants on the due date? 6. The learned Addl. Distt. Judge, while coming to the conclusion that the plaintiffs had failed to allege and prove that they had brought and tendered the balance amount of sale consideration to the defendants and as such they had failed to prove issue No. 2, had placed reliance on Dhanna Singh v. Malkiat Singh, 1983 The Punjab Law Reporter 275, in which it was held by this Court that the word "ready" implies that the plaintiff had money at his disposal to pay the sale consideration and the word "willing" implies that he was inclined to do what was required. It was further held in the said authority that it was incumbent upon the plaintiff to show that he had money at his disposal to pay the sale consideration and plaintiff was required to plead that he tendered the money to the defendant on a particular date and demanded transfer of the property by an instrument and the plaintiff having failed to aver and prove the aforesaid ingredients his suit was liable to be dismissed. In my opinion, the law laid down by this Court in Dhanna Singhs case (supra) is no longer good law in view of the law laid down by the Hon ble Supreme Court in Sukhbir Singh V/s. Brij Pal Singh. AIR 1996 SC 2510. In the said authority it has been held by the Hon ble Supreme Court that it is not a condition that the respondents should have ready cash with them. It was further held that it is not necessary that they should always carry money with them from the date of the suit till date of the decree. In the said authority it has been held by the Hon ble Supreme Court that it is not a condition that the respondents should have ready cash with them. It was further held that it is not necessary that they should always carry money with them from the date of the suit till date of the decree. It was further held that the fact that the plaintiffs attended the office of Sub-Registrar to have the sale deed executed and waited for the defendants to attend the office of Sub-Registrar is a positive fact to prove that they had necessary funds to pass on consideration and that they had the needed money with them for payment at the time of registration. 7. In view of the law laid down by the Hon ble Supreme Court in the aforesaid authority, in my opinion, it was not necessary for the plaintiffs to have pleaded or proved that they had tendered the money to defendants on any particular day or had demanded transfer of the property by a registered sale deed. In the present case there is enough evidence on record to show that the plaintiffs were ready and willing to perform their part of the contract and they had attended the office of the Sub-Registrar and had submitted writing Ex. P. 3 before the Sub-Registrar and had obtained his endorsement Ex. P. 1 showing the presence of the plaintiffs before the Sub-Registrar on 11-7-1979. Even the learned Addl. District Judge had upheld the finding of the trial Court to the effect that the plaintiffs were ready and willing to perform their part of the contract. 8. Accordingly. I reverse the findings of the trial Court on issue No. 2 and hold that the plaintiffs were willing and ready to perform their part of the contract and plaintiffs were not required to aver or prove that they have tendered balance amount of Rs. 5,000/- to the defendants at any point of time. 9. In view of the above, substantial question of law formulated above, is decided in favour of plaintiffs appellants. 10. No other point has been urged before me in this appeal. 11. For the reasons recorded above, present Regular Second Appeal is allowed, judgment and decree dated 12-1-1984 passed by the Addl. Dist. 9. In view of the above, substantial question of law formulated above, is decided in favour of plaintiffs appellants. 10. No other point has been urged before me in this appeal. 11. For the reasons recorded above, present Regular Second Appeal is allowed, judgment and decree dated 12-1-1984 passed by the Addl. Dist. Judge are set aside and that of the trial Court are restored and suit of the plaintiffs is decreed for possession of land measuring 10 kanals detailed in the heading of the plaint by way of specific performance of the agreement to sell dated 6-11-1978 on payment of Rs. 5,000/- by the plaintiffs to the defendants. It is further directed that on deposit of balance amount of Rs. 5,000/- by the plaintiffs, the defendants shall get the sale deed executed and registered in favour of the plaintiffs within two months of the deposit failing which the plaintiffs would be entitled to get the sale deed executed from the Court by execution of this decree. However, there shall be no order as to costs.Appeal allowed.