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2021 DIGILAW 535 (KER)

R. Santhi, Wife of Joseph v. N. Gopalakrishnan

2021-06-03

MARY JOSEPH

body2021
JUDGMENT : The challenge in the appeal on hand is by the plaintiff against a judgment passed by Additional Sub Judge I, Thiruvananthapuram (for short, 'the trial court') in O.S.No.38 of 1995 declining to grant a decree for specific performance in favour of her. According to the appellant, the trial court has committed a grave error while passing such a judgment and therefore is unjustified. 2. The pleadings of the parties in O.S No.38 of 1995 are very relevant to have an idea about the facts of the case and therefore, a narration is made hereunder in brief. For clarity, the parties will be referred to hereinafter as the plaintiff and the defendant in accordance with their status before the trial court. 3. The land belongs to the defendant was acquired by the Government for expansion of the Bus Terminus of the Kerala State Road Transport Corporation at Thampanoor. Consequent to eviction of the defendant, the plaint schedule property together with the right to use the road was assigned to the defendant. 4. K.S.R.T.C fixed a consideration of Rs.75,000/- per cent for the plaint schedule property and vide order passed in Writ Appeal filed as 1107 of 1994 before this Court challenging the same, cost of Rs.75,000/- per cent was maintained and the time for payment was extended upto 03.01.1995. 5. On 01.06.1992 an agreement was executed by the defendant with the plaintiff agreeing to sell the above property for a total consideration of Rs.12,50,000/- and Rs.1,00,000/- was paid as advance sale consideration. As per the terms of agreement for sale, the sale deed shall be executed by the defendant in favour of the plaintiff within one month from the date on which a certificate of purchase is secured by him and mutation of the property is effected in his name. 6. On 29.12.1994, the defendant had remitted Rs.4,20,615/- to the K.S.R.T.C. The plaintiff demanded the defendant to execute the sale deed but he has given evasive replies in response. The defendant even failed to satisfy the plaintiff that no objection and clearance were obtained from the authorities concerned and also from the income tax authorities. In the context, the plaintiff was constrained to address the Sub-Registry, Chalai and to lodge her protest against registration of a document in respect of property covered by agreement dated 01.06.1992. The defendant even failed to satisfy the plaintiff that no objection and clearance were obtained from the authorities concerned and also from the income tax authorities. In the context, the plaintiff was constrained to address the Sub-Registry, Chalai and to lodge her protest against registration of a document in respect of property covered by agreement dated 01.06.1992. The defendant vide letter sent on 14.09.1994, had intimated the plaintiff that he is unable to proceed with the agreement unless the terms are revised as suggested by him within seven days. The plaintiff received the letter on 15.09.1994 and sent a reply stating that she cannot vary the conditions unilaterally, that she is ready to pay to K.S.R.T.C the amount due towards sale consideration and in case he failed to execute the sale deed in accordance with the agreement, he will have to meet the consequences arising out of the same. The reply was served on the defendant on 23.09.1994. 7. The plaintiff caused to issue a lawyer notice to the defendant on 17.12.1994 intimating that she is ready and willing to perform her part as per the agreement for sale. The plaintiff had also addressed the Chairman, K.S.R.T.C intimating him that an agreement was executed on 01.06.1992 among herself and the defendant and advance sale consideration was paid and expressed her willingness to remit the balance amount due to the Corporation on handing over possession of the property to her. Protest complaint was also lodged by the plaintiff against registration of the property by the defendant to anyone else. Ultimately the plaintiff realised that the defendant has no intention to execute the sale deed as agreed by him and thereupon the suit in question was filed before District Court seeking specific performance of the agreement. The specific plea of the plaintiff in the suit was that the entire sale consideration was remitted by the defendant to K.S.R.T.C on 29/12/1994 and got the plaint schedule property transferred in his favour, that she is ready and willing to perform her part of the agreement, that she got sufficient funds to pay the balance sale consideration and that the defendant though obliged under the agreement to satisfy the plaintiff that the necessary clearance from the Income Tax Department was obtained and the property is free from encumbrance of any nature, failed to clear off those. 8. 8. The reliefs sought in the suit were: “(a) Directing the defendant to execute a sale deed in respect of the plaint schedule property to the plaintiff on the basis of the agreement of sale dated 01.06.1992 executed by defendant in favour of the plaintiff or its nominee and if he commits default the court be pleased to execute the sale deed as per the provisions of Code of Civil Procedure on deposit of balance consideration as per the agreement of sale in favour of plaintiff and put the plaintiff in possession of the plaint schedule property. (b) In the event this Honourable Court for any reasons holds that the specific relief sought for is not to be granted, allow compensation, refund of advance paid and interest thereon at 21% per annum from the date of respective payments till date of realisation from the defendant personally and his assets. (c) Allow the plaintiff to realise the cost of the suit from the defendant and his assets. (d) Any other relief the Honourable Court deem fit to grant in the nature and circumstances of the cost.” 9. The prime contention of the defendant in the written statement was that the agreement is void ab initio and cannot be enforced. It is contended that the sale deed is agreed to be executed by the defendant after receiving the purchase certificate and it was realised on obtaining that the plaint schedule property cannot be assigned in favour of any other person for a period of ten years. Therefore, the defendant cannot execute the sale deed in favour of the plaintiff as agreed. There was no breach of contract by the defendant and therefore, the plaintiff is not entitled to get any amount as compensation. He is ready to return Rs.1,00,000/- with interest as per Nationalised Bank rate to the plaintiff. The plaintiff is not entitled to get a decree for specific performance of the agreement for sale or compensation but only for return of the amount paid as advance towards sale consideration. 10. PWs 1 to 4 were examined and Exts.A1 to A26 were marked in evidence on the side of the plaintiff. The defendant had examined himself as DW1 and marked Ext.B1. Exts.C1, C1(a), C2, and X1 to X7 series were also marked as court exhibits. 11. 10. PWs 1 to 4 were examined and Exts.A1 to A26 were marked in evidence on the side of the plaintiff. The defendant had examined himself as DW1 and marked Ext.B1. Exts.C1, C1(a), C2, and X1 to X7 series were also marked as court exhibits. 11. The trial court found the agreement for sale marked in evidence as Ext.A1 unenforceable and therefore, the plaintiff is not entitled to get a decree for specific performance. The claim of the plaintiff for compensation was also declined for her failure to adduce sufficient evidence to establish breach of contract by the defendant. Accordingly, the decree passed by the trial court was confined to return of Rs.1,00,000/- paid as advance sale consideration with interest at the rate of 12% per annum from 01/06/1992 till reaslisation with costs. The plaintiff was also directed to realise the above from the defendant personally and from his assets. 12. The judgment and decree passed as above are assailed by the plaintiff in the appeal on hand. 13. The learned counsel for the appellant and the respondent were heard in the appeal. 14. The argument mainly advanced by Sri.G. Sreekumar, the learned counsel on behalf of the appellant was that the trial court has committed error while declining to grant a decree for specific performance of Ext.A1. According to him, the trial court on an erroneous appreciation of evidence arrived at a conclusion that Ext.A1 is unenforceable. According to him, the plaint schedule property belongs to the Kerala State Road Transport Corporation and as such a condition imposed against assignment of government land under Assignment Rules are not applicable to it. According to him, the trial court has relied on a printed condition incorporated in Ext.B1 to hold that it stands as a bar against conveyance of plaint schedule property for a period of 10 years. According to him, the plaint schedule property was sold to the defendant by K.S.R.T.C at a price fixed by the court and therefore it cannot be assignment of government land and therefore, the provisions of the Kerala Government Land Assignment Act, 1960 (Act 30 of 1960) (for short, ‘Act, 1960’) and the Kerala Land Assignment Rules, 1964 (for short ‘Rules, 1964’) framed thereunder will not be applicable and the trial court ought not to have held that the provisions thereunder are applicable to the context on hand. It is also pointed out that, the trial court overlooked the documents marked in evidence as Exts.A22 to A25 which speak about an identical situation where, despite the incorporation of a condition restraining alienation for ten years in the purchase certificate, property assigned by K.S.R.T.C has been sold by the brother of the defendant to the plaintiff. According to the learned counsel, the trial court ought to have taken a view on the strength of the documents marked in evidence as Exts.A22 to A25 that the condition restraining alienation of the property incorporated in Ext.B1 purchase certificate being a printed one, was not intended to be enforced. It is contended by the learned counsel that in a suit for specific performance the court has only to see whether the plaintiff is ready and willing to perform his/her part of the contract and he/she has the necessary money available with him/her to be paid as balance sale consideration. According to him, the plaintiff in the case on hand has raised specific pleadings that she is ready and willing to perform her part of the contract as per Ext.A1 and has also deposed in tune with. According to him, such being the context, the trial court ought not to have declined to grant the relief on the basis of some provisions of the Act and Rules which have no application at all to the situation on hand. 15. The learned counsel has also relied on M.K. Marattukulam v. Hemchand [ 1988 (2) KLT 166 ] to fortify his contention that time is not essence of the contract for sale. He has relied on Abdul Hameed v. Mohammed Nizzar [ 2005 (1) KLT 568 ] to contend that even if the title of the vendors are defeasible at the instance of persons not parties to the Suit, the purchaser will get only such title as the vendors themselves had in the property. He has relied on Abdul Hameed v. Mohammed Nizzar [ 2005 (1) KLT 568 ] to contend that even if the title of the vendors are defeasible at the instance of persons not parties to the Suit, the purchaser will get only such title as the vendors themselves had in the property. Ajit Prasad Jain v. N.K.Widhani and others [AIR 1990 Delhi 42] was relied on by the learned counsel to contend that Section 31 of the Foreign Exchange Regulation Act which places a restriction on a foreign citizen on transfer or sale, mortgage, lease, gift, settlement or otherwise of any immovable property situated in India except with the previous general or special permission of the Reserve Bank of India, do not bar grant of relief of specific performance to the plaintiff and the question of permission of the Reserve Bank of India will arise if at all, at the stage of execution of the sale deed. 16. Sri.Biju C. Abraham, the learned counsel has contended on behalf of the defendant that the plaint schedule property is Government land and therefore the restrictive covenant in Ext.B1 binds him and by virtue of that he is incapacitated to sell the plaint schedule property proposed to be sold as per Ext.A1. According to him the defendant had agreed to sell the plaint schedule property to the plaintiff for a consideration of Rs.10,000/- per cent and to execute the sale deed in her favour within one month from the date on which a purchase certificate is issued in former's favour. Ext.B1 purchase certificate was obtained by the defendant on 25.07.1995 and upon perusal, he was informed that the property covered by it cannot be assigned to anyone for 10 years commencing from the date of it’s issuance. When examined as DW1, he categorically stated that when a covenant restraining alienation is incorporated in the purchase certificate, he is bound by that and cannot act against as was allegedly done by his brother. According to the learned counsel the trial court on appreciation of the evidence on record in its correct perspective held that the covenant in Ext.B1 restrains alienation of the plaint schedule property by the defendant to anyone else. According to the learned counsel the trial court on appreciation of the evidence on record in its correct perspective held that the covenant in Ext.B1 restrains alienation of the plaint schedule property by the defendant to anyone else. According to him, because of the restrictive covenant in Ext.B1, Ext.A1 has become unenforceable and the trial court was perfectly right in declining to grant a decree for specific performance in favour of the plaintiff. 17. The learned counsel for the defendant has also cited Gopi v. District Collector [ 1992 (2) KLT 605 ] and the judgment of a Single Bench in WP(C) No.15249/2009 to fortify his contentions. It has been held by this Court in Gopi (supra) that the non obstante clause in Section 8 of Act, 1960, would make the restrictions contained in the assignment prevail notwithstanding anything contained to the contrary in any other Act or law. In the Writ Petition above, validity of Rule 15(1) of the Kerala Land Assignment (Regularisation of Occupations of Forest Lands Prior to 01.01.1977) Special Rules, 1993 (for short ‘the Rules, 1993’ for future reference) was questioned and the court held that the challenge will not sustain. 18. Urmila Devi and others v. Deity, Mandir Shree Chamunda Devi Through Temple Commissioner and others [2018 KHC 6016 = AIR 2018 SC 640 ] has been cited by the learned counsel for the defendant to contend that when the contract has become impossible with no fault of the plaintiff, Section 21 of the Specific Relief Act, 1963 (for short ‘Act, 1963’) enables the Court to award compensation in lieu of specific performance. Consequent to acquisition of Suit land under the Land Acquisition proceedings decree of specific performance granted in favour of plaintiff could not be maintained. In the case on hand sale consideration in full had been paid by the plaintiff for the Suit land and the acquisition proceedings having been initiated thereafter, the court has directed compensation to be paid to the plaintiff in lieu of decree for specific performance. According to the learned counsel, compensation was rightly declined by the trial court in the case on hand since the defendant is not proved to have committed any breach of contract. According to him, at the time of execution of Ext.A1 agreement the defendant and the plaintiff were desirous of performing their respective parts under it. According to the learned counsel, compensation was rightly declined by the trial court in the case on hand since the defendant is not proved to have committed any breach of contract. According to him, at the time of execution of Ext.A1 agreement the defendant and the plaintiff were desirous of performing their respective parts under it. The sale deed was also agreed to be executed within one month from the date on which the defendant obtains purchase certificate. On obtaining the purchase certificate, by virtue of a condition incorporated therein restraining alienation the defendant was convinced that he has no authority to assign the land comprised therein for another ten years. 19. It is urged by the learned counsel for the plaintiff that under Section 10 of the Transfer of Property Act, 1882 (for short 'T.P. Act') any condition or limitation absolutely restraining the transferee or any person claiming under him, from parting with or disposing of his interest in the property is void. According to him, in that backdrop the restraint from alienation contained in the purchase certificate is only to be treated as void. 20. In this connection it is pertinent to have a look at the preamble of the T.P. Act which reads: “WHEREAS it is expedient to define and amend certain parts of the law relating to the transfer of property by act of parties, it is hereby enacted as follows:” Section 5 of the T.P Act defines transfer of property in the following manner : “5. “Transfer of property” defined.—In the following sections “transfer of property” means an act by which a living person conveys property, in present or in future, to one or more other living persons, or to himself, or to himself and one or more other living persons; and “to transfer property” is to perform such act. In this section “living person” includes a company or association or body of individuals, whether incorporated or not, but nothing herein contained shall affect any law for the time being in force relating to transfer of property to or by companies, associations or bodies of individuals. ” (Emphasis supplied) 21. As per the definition, transfer of property means an act by which a living person conveys property in present or in future to one or more other living persons, or to himself or to himself and one or more other living persons. ” (Emphasis supplied) 21. As per the definition, transfer of property means an act by which a living person conveys property in present or in future to one or more other living persons, or to himself or to himself and one or more other living persons. It is clarified that though 'living person' include a company or association or body of individuals, whether incorporated or not, but, the provision will be inapplicable to any transfer by or to the companies, association or bodies of individuals. 22. For regulating the assignment of Government lands and to remove doubts as to the validity of the limitations and restrictions imposed on assignments of land by the Government or under their authority, Act 1960 was enacted in the Eleventh year of the Republic of India. Therefore, assignment of Government lands are governed by the provisions of the above Act and Rules, 1964 framed thereunder. Section 3 of Act, 1960 reads : “3. Assignment of Government land.--(1) Government land may be assigned by the Government or by any prescribed authority either absolutely or subject to such restrictions, limitations and conditions as may be prescribed. (2) No Government land assignable for public purpose may be assigned under sub-section (1) without consulting the local authority as defined in the Kerala Panchayat Raj Act, 1994 (13 of 1994) or the Kerala Municipality Act, 1994 (20 of 1994) as the case may be and if such local authority required such land, for carrying out any of the functions assigned to it, Government may set apart such land for that purpose. Explanation.- Any restriction as to alienation, whether voluntary or otherwise, of the rights of the assignee, shall, be a restriction within the meaning of this section.” 23. Explanation to Section 3 of Act, 1960 specifically provides that any restriction on alienation, whether voluntary or otherwise, of the rights of the assignee, shall be a restriction within the meaning of Section 3 of Act, 1960. Section 8 of Act, 1960 is relevant and it reads: “8. Assignment to take effect with restrictions, conditions, etc. according to their tenor.- All the provisions, restrictions, conditions and limitations contained in any Pattah or other document evidencing the assignment of Government land or of any interest therein shall be valid and take effect according to their tenor, notwithstanding any law for the time being in force or any custom or contract to the contrary. according to their tenor.- All the provisions, restrictions, conditions and limitations contained in any Pattah or other document evidencing the assignment of Government land or of any interest therein shall be valid and take effect according to their tenor, notwithstanding any law for the time being in force or any custom or contract to the contrary. Explanation.- In this section, the expression “Government land” shall include land under the control or management of the Government at the time of the assignment.” 24. Therefore, all restrictions, conditions and limitations contained in any Pattah or other document issued by the Government evidencing the assignment of its land or of any interest therein shall be valid and will take effect according to their tenor notwithstanding any law for the time being in force or any custom or contract to the contrary. By virtue of Explanation appended to Section 8 of Act, 1960, the expression 'Government land' will also takes in, land under the control or management of the Government at the time of assignment. In view of the non obstante clause in Section 8 of Act, 1960 assignment of government land or any interest therein shall be valid and take effect according to their tenor irrespective of a law that exists to the contrary. In the above circumstances, even if a law exists to the contrary of what is envisaged under Section 8 of Act, 1960, the latter would prevail. As already stated, the T.P. Act governs only transfer of property between living persons. As emphasized by Section 5 of the T.P. Act, the term 'living person' will not take ‘Government’ within it's sweep. Therefore, if at all any restriction is imposed by the Government against assignment, that would prevail, notwithstanding anything contained in the T.P. Act. 25. It was contended by the learned counsel for the plaintiff that the condition restraining alienation was a Clause in the printed format and the defendant has never subscribed to that. Attention was also drawn to Ext.B1 to justify his contention. The first page is a format of an Order assigning the Government land. On it's reverse side the schedule of the property is incorporated. Underneath the same, a declaration is incorporated and it reads : 26. Around 16 conditions have been enumerated in the Format and the defendant by affixing his signature thereunder cannot be said to have not subscribed those. On it's reverse side the schedule of the property is incorporated. Underneath the same, a declaration is incorporated and it reads : 26. Around 16 conditions have been enumerated in the Format and the defendant by affixing his signature thereunder cannot be said to have not subscribed those. Therefore, the argument that the defendant is not bound by a condition restraining alienation for 10 years is only liable to be discarded as untenable. The name of the defendant and the expenses for survey and fixation of boundaries have been found written in ink and that would impress that the conditions are intended for compliance by the defendant in whose favour Government land has been assigned. 27. The first Clause in the Format reads : Being a subscriber to Clause 1 above, the defendant is barred from alienating the land assigned by the Government in his favour to any one for a period of ten years. 28. Another argument of the learned counsel for the plaintiff was that the property was assigned by KSRTC and not by Government. The explanation given in Section 8 of Act, 1960 itself would make it clear that though property has been assigned in favour of the defendant by the K.S.R.T.C, the same is one under the control and management of the Government. 29. The further question to be dealt with is whether the restraint on alienation for ten years incorporated in Ext.B1 takes effect according to its tenor. As made clear by Section 8 of Act, 1960, any restrictive conditions and limitations incorporated in the patta or any other document evidencing assignment of government land or creation of any interest therein shall be valid and take effect, according to its tenor. Therefore, Section 8 has to be read in isolation and independently in ignorance of Section 10 of T.P.Act. Therefore there is no scope for a doubt to arise that Clause 1 extracted supra, imposing restriction on alienation of the government land assigned in favour of the defendant by Ext.B1 for ten years, is a valid one and binding on the defendant according to its tenor. 30. The consequence of disobedience of Clause 1 in Ext.B1 is incorporated in Clause 3 which reads : Therefore, if the defendant disobeys the condition in Clause 1, it would lead to cancellation of Ext.B1. 30. The consequence of disobedience of Clause 1 in Ext.B1 is incorporated in Clause 3 which reads : Therefore, if the defendant disobeys the condition in Clause 1, it would lead to cancellation of Ext.B1. What follows is that in the event of the defendant assigning the property in favour of a third party, within ten year period commencing from the date of grant of Ext.B1, it would result in cancellation of Ext.B1 itself. Therefore, Clause 1 in Ext.B1 is a valid restraint on the authority of the defendant to alienate the property for a period of 10 years from the date of issuance of Ext.B1 and in case of any violation, the defendant would have to meet the consequence of cancellation of Ext.B1. The cancellation of Ext.B1 would have it's own repercussions in the proposed exeuction of sale deed in respect of plaint schedule property in plaintiff’s favour. Therefore, the tiral court is perfectly justified in arriving at a finding that the condition restraining alienation of the plaint schedule property for a period of ten years has made Ext.A1 unenforceable and declining to grant the decree for specific performance. Since Ext.A1 has become unenforceable not due to any wilful default of the defendant the trial court is perfectly justified in declining to grant compensation to the plaintiff. 31. Mir Abdul Hakeem Khan v. Abdul Mannan Khadri [ AIR 1972 AP 178 ] and Baluswami Aiyar v. Lakshmana Aiyar and others [AIR 1921 Madras 172 (FB)], cited by the learned counsel for the plaintiff have no relevance at all since, the issue involved in the case on hand is not one related to want of title or defective title of the defendant but, one imposing restraint on alienation for ten years in view of a condition, incorporated in Ext.B1. In M.K. Marattukulam (supra) cited by the learned counsel, the contention taken by the defendant was that on the death of 'Kuncheria T. Marattukulam' the property was devolved on his wife and children including four daughters, who are not parties to the agreement and therefore the defendants could not convey full title of the property agreed to be conveyed among the parties. The property at the time of execution of Ext.A1 agreement for sale belongs to Mr.Kuncheria and on his death, that it devolved upon his legal heirs. The property at the time of execution of Ext.A1 agreement for sale belongs to Mr.Kuncheria and on his death, that it devolved upon his legal heirs. At the time of filing of the suit seeking for a decree of specific performance, the owner of the property proposed to be sold died and this Court held in paragraphs 5 and 8 as follows : “5. These decisions can have no application to the present case where the plaintiff does not seek to obtain a conveyance of the share, if any, due to the daughters of Kuncheria, who are not even parties to the suit. The plaintiff seeks enforcement of the contract binding on defendants 1 to 5 and the question is whether they are entitled to avoid the contract by setting up a plea of title of persons who are not parties to the suit. A Full Bench of the Madras High Court in Baluswami Aiyar V. Lakshmana Aiyar (AIR 1921 Madras 172) stated at page 178: “Where a person sues for specific performance of an agreement to convey and simply impleads the party bound to carry out the agreement there is no necessity to determine the question of the vendor's title, and the fact that the title which the purchaser may acquire might be defeasible by a third party is no ground for refusing specific performance if the purchaser is willing to take such title as the vendor has. But where a party seeking specific performance seeks to bind the interests of persons not parties to the contract alleging grounds which under Hindu Law would bind their interests and enable the vendor to give a good title as against them and make them parties, it is difficult to see how the question as to the right of the contracting parties to convey any interest except his own can be avoided and a decree passed the effect of which will merely be to create multiplicity of suits”. In that case a suit was brought by certain plaintiffs to enforce specific performance of a contract to sell a house and ground made by defendant No.1 alone. In that case a suit was brought by certain plaintiffs to enforce specific performance of a contract to sell a house and ground made by defendant No.1 alone. The plaintiff claimed that defendant 1's son, defendant 2, who was not a party to the contract, was nevertheless bound by the agreement entered into by the father because he had consented to the contract and also because the sale was for the benefit of the family. These pleas were denied and the learned trial Judge held that the pleas were not established and the suit was dismissed against the son. The question for decision was whether in such circumstances specific performance could be decreed against defendant 1 alone and, if it could be, on what terms. The learned Judge's answer to the question was specific performance of the contract could not be granted so as to direct execution of a conveyance of the entire property. But it was open to the purchaser to get specific performance so far as the share of the vendor was concerned on payment of the consideration agreed upon without any abatement. It is in that context the Full Bench made the above observation. In the present case the plaintiff does not seek a conveyance of the share, if any, due to the daughters of Kuncheria. There is also no allegation in the plaint that the agreement sued on is binding on them. Under these circumstances the earlier part of the observation of the Full Bench quoted above would squarely apply to the present case.” “8. Whether the vendors had full title to the property agreed to be conveyed to the plaintiff is not a question properly arising for decision in the present suit for specific performance. If their title is defeasible at the instance of persons not parties to the suit, the purchaser will get only such title as the vendors themselves had in the property. It is not open to the vendors to set up title of third parties in defence to the suit for specific performance. We, therefore, hold that the court below was perfectly right in decreeing specific performance of the agreement Ext.A1.” 32. It is not open to the vendors to set up title of third parties in defence to the suit for specific performance. We, therefore, hold that the court below was perfectly right in decreeing specific performance of the agreement Ext.A1.” 32. The facts in the case cited and the one on hand are entirely different for the reason that the property proposed to be sold in the case cited is private property and the one in the case on hand is government land. It was discussed in total hereinabove that in case of assignment of government land, the government is empowered to impose restrictions, limitations and conditions, which if imposed are valid and are bound to be followed by the party in whose favour the land was assigned. 33. In WP(C) No.15249/2009, a situation similar had come up for consideration. The petitioners claimed to be assignees of 0.41.60 hectares of land in survey No. 30/8 of Chinnakkanal Village in Udumbanchola Taluk in Idukki District as per Exts.P2 and P3 sale deeds. The vendor of the petitioners had obtained the said land on assignment as evidenced from Ext.P1. The assignment was made under Rules, 1993. The claim of the petitioners was that pursuant to the assignment of land in their favour a building was put up therein, mutation was effected and basic tax was paid. By Ext.P7 the 4th respondent Tahsildar addressed the vendor of the petitioners stating that the assignment in her favour would be cancelled. Ext.P7 was challenged by the petitioners before the Government and by Ext.P8 order, the action of the Tahsildar was affirmed. It was found that the alienation made by pattadar under Exts.P2 and P3 in favour of the petitioners was clearly in contravention of Rule 15(1) of the Rules, 1993. Rule 15(1) of the Rules, 1993 reads : “15. Lands assigned to be heritable but not alienable except in certain cases:- (1) The lands assigned under these Rules shall be heritable but shall not, subject to sub-rule(2) be alienable.” 34. The original assignment was subject to a condition that the property is not alienable. In view of the restriction of alienation in Ext.P1 patta, the assignee of the property was prevented from alienating the same to the petitioners by executing Exts.P2 and P3. The original assignment was subject to a condition that the property is not alienable. In view of the restriction of alienation in Ext.P1 patta, the assignee of the property was prevented from alienating the same to the petitioners by executing Exts.P2 and P3. Therefore, the petitioners who are purported to acquire a right from the assignee under Ext.P1, is not entitled to claim any right over the property. Ext.P8 was taken up in challenge by the petitioners. They have also challenged the validity of Rule 15(1) of Rules, 1993. It was contended therein that the very purpose of assignment in favour of the original assignee would be defeated, if a restriction against alienation is imposed. It was also contended that Rule 15(1) of Rules, 1993, as it provides for a restriction against alienation of the property is also violative of Section 10 of the T.P. Act. The Government has taken a stand that it is open to the Government as the owner of the property to impose a restriction against alienation of it’s property for a limited period. Referring to the preamble and Sections 3 and 8 of Act, 1960, the court held that there is a good reason for the imposition of a restriction against alienation of a property assigned under the provisions of the Rules. The court found that the intention behind the Rules promulgated in the year 1993 was to see that those persons who had cultivated land over a long period were not deprived of the benefits of their effort and that such agricultural lands remain as they are. Accordingly, it was held in the case that the challenge to Rule 15(1) of Rules, 1993 is untenable and unsustainable. 35. On the basis of the discussions made hereinabove, this Court finds that the arguments advanced by the learned counsel for the appellant are liable to be discarded as untenable. The restriction imposed by Government on alienation of its property assigned in favour of the defendant is valid and therefore, the defendant is restrained from conveying it in favour of the plaintiff in terms of Ext.A1. Even if a decree for specific performance is granted in favour of the plaintiff, it cannot be enforced. 36. The restriction imposed by Government on alienation of its property assigned in favour of the defendant is valid and therefore, the defendant is restrained from conveying it in favour of the plaintiff in terms of Ext.A1. Even if a decree for specific performance is granted in favour of the plaintiff, it cannot be enforced. 36. Under Section 16(c) of Act, 1963 it is a condition precedent for the enforcement of specific performance that the party seeking for it must plead and establish that he has performed his part required to be performed under the agreement executed or that he was and is ready and willing to perform his part of the agreement for sale. 37. The Division Bench in Susheela (Died) and others v. T.M. Muhamedkunhi [ 2012 (1) KHC 508 ] has also drawn a distinction of the terms, ‘readiness’ and ‘willingness’, which is extracted hereunder : “A distinction may be drawn between readiness to perform the contract and willingness to perform the contract. Readiness means the capacity of the plaintiff to perform the contract and it includes his financial ability to raise the money to pay the purchase price. Even if the plaintiff has the financial capacity to pay the purchase price and he thereby shows readiness to perform the contract, that need not necessarily mean that he is wiling to perform his part of the contract. Unless he is also wiling to perform his part of the contract, mere readiness to do so cannot be of no avail to him. He may, nevertheless be disqualified from seeking specific performance of the contract if he is really unwilling to buy the property although he may be ready to do so.” It was further held : “Courts have been very strict regarding this requirement of S.16(c) of the Specific Relief Act which provision has been couched in negative terms. S.16(c) is not an empty formality and readiness and willingness are to be proved right from the date of the contract till the date of the decree. In other words, the strict requirement of law is the continuous readiness and willingness. S.16(c) is not an empty formality and readiness and willingness are to be proved right from the date of the contract till the date of the decree. In other words, the strict requirement of law is the continuous readiness and willingness. In the absence of a plea in the plaint regarding readiness and willingness, no decree for specific performance can be granted to plaintiff.” Sub-section (ii) of Explanation to Section 16(c) of Act, 1963 says that the plaintiff must aver performance of, or readiness and willingness to perform, the contract according to its true construction. Clause (c) provides that plaintiff 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 will not be entitled to get a decree for specific performance in his favour. 38. Therefore, the plaintiff has to establish that she was ready from the date of execution of Ext.A1 and continues to be so even at the time of institution of the suit to perform, the part to be performed by her as per Ext.A1. She must plead in the plaint that the fund to pay the balance sale consideration was ready and kept by her and still has it or that she has the necessary source of money wherefrom the balance sale consideration could easily be drawn or availed and paid. She must also aver in the plaint and adduce evidence to establish that she is prepared and willing to pay the balance sale consideration at any point of time as directed by the court for getting the sale deed executed in her favour. Non-compliance of Section 16(c) of the Act, 1963 undoubtedly will operate as a statutory interdict against the court granting a decree for specific performance of a contract. 39. In C.S. Venkatesh v. A.S.C Murthy [ (2020) 3 SCC 280 ], the Apex Court has considered the essentialities to establish readiness and willingness of the plaintiff approaching a court to obtain a decree for specific performance and held : “16. The words "ready and willing" imply that the plaintiff was prepared to carry out those parts of the contract to their logical end so far as they depend upon his performance. The words "ready and willing" imply that the plaintiff was prepared to carry out those parts of the contract to their logical end so far as they depend upon his performance. The continuous readiness and willingness on the part of the plaintiff is a condition precedent to grant the relief of performance. If the plaintiff fails to either aver or prove the same, he must fail. To adjudge whether the plaintiff is ready and willing to perform his part of 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 which he has to pay the defendant must be of necessity to be proved to be available. Right from the date of the execution of the contract till the date of decree, he must prove that he is ready and willing to perform his part of the contract. The court may infer from the facts and circumstances whether the plaintiff was ready and was always ready to perform his contract." "21. In the instant case, the plaintiff has alleged that he was ready to pay Rs.35,000/- to the defendants and called upon them to execute the re-conveyance deed. However, in para 11 of the plaint it is pleaded that the plaintiff was running contract business wherein he suffered heavy loss and as such he gave up the business. It is also pleaded that at present the plaintiff has no business or profession and has no source of income. He has no property, either movable or immovable. Mere plea that he is ready to pay the consideration, without any material to substantiate this plea, cannot be accepted. It is not necessary for the plaintiff to produce ready money, but it is mandatory on his part to prove that he has the means to generate the consideration amount. Except the statement of PW-1, there is absolutely no evidence to show that the plaintiff has the means to make arrangements for payment of consideration under the reconveyance agreement. 22. It is relevant to state here that before filing the suit, the plaintiff had filed an application before the competent authority under the Karnataka Debt Relief Act seeking extinguishment of the debt and delivery of the property back to him. No doubt, the application was dismissed by the authority. 22. It is relevant to state here that before filing the suit, the plaintiff had filed an application before the competent authority under the Karnataka Debt Relief Act seeking extinguishment of the debt and delivery of the property back to him. No doubt, the application was dismissed by the authority. But the fact remains that the intention of the plaintiff was not to pay the amount as per the re-conveyance agreement.” 40. Therefore, what is envisaged under Section 16 (c) of Act, 1963 was that, the party seeking for a decree of specific performance, if performed his part must plead that he had already performed the part assigned for performance by the agreement for sale and to establish those by adducing cogent and convincing evidence. If he has not performed his part till the relevant time of institution of the Suit, he must prove that he was ready and willing from the very inception of the agreement and that he is, even at the time of institution of Suit and during pendency of it, having the necessary funds to pay the balance sale consideration or that he has the source to obtain and pay it. He must also adduce cogent and convincing evidence to substantiate those aspects. 41. In the case on hand in paragraph 18 of the plaint, the plaintiff had pleaded as follows: “18. Plaintiff was/is ever ready and willing and even now willing/ ready to perform her part of the agreement and to take the sale deed. Plaintiff had performed her part of the contract. Plaintiff had/has sufficient funds to pay the balance of consideration, which fact was made known to defendant. Defendant failed to obtain the clearance from the Income tax Department for the sale. Defendant agreed/undertook to satisfy the plaintiff that the plaint schedule property is not subject to any encumbrance and agreed to clear, subsisting one if any at his cost and responsibility. Defendant has not taken any steps/ act to fulfill his obligation under the agreement. Plaintiff is therefore entitled to get specific performance of the agreement to get the sale of the property scheduled hereunder through court.” While being examined as PW1, plaintiff deposed to have sent a notice intimating her readiness and willingness to perform her part in Ext.A1. The copy of the notice is also produced and marked in evidence as Ext.A7. Plaintiff is therefore entitled to get specific performance of the agreement to get the sale of the property scheduled hereunder through court.” While being examined as PW1, plaintiff deposed to have sent a notice intimating her readiness and willingness to perform her part in Ext.A1. The copy of the notice is also produced and marked in evidence as Ext.A7. But, she failed to adduce evidence to establish her readiness and willingness to perform her part of the contract in it’s true construction as given by the Division Bench and the Apex Court in the decisions referred to supra. Therefore, she failed to establish the circumstances under Section 16(c) of Act, 1963 which entitles her to get a decree for specific performance. Trial court failed to advert to the above aspects which are crucial and decisive in the matter of grant of a decree for specific performance. 42. In the case on hand plaintiff had pleaded in the plaint that she was and is ready and willing to perform her part of the contract. Under Ext.A1, what is required to be performed by her was to pay the balance sale consideration and to demand the defendant to execute the sale deed in respect of the plaint schedule property in her favour. As PW1, the plaintiff had deposed that she was and still is ready and willing to perform her part of the contract. According to her, fund to pay the balance sale consideration was available with her. But, materials to evidence availability of funds with her was not produced and is marked in evidence. She also failed to establish wilful default of the defendant in executing the sale deed in her favour. In fact, the execution of the sale deed was defeated on account of Clause 1 in Ext.B1 restraining alienation. 43. Therefore, the trial court cannot be found fault with in decling to grant a decree for specific performance and also compensation. The trial court has allowed the suit in part and directed the defendant to return Rs.1,00,000/-, the advance consideration paid by the plaintiff with interest at the rate of 12% per annum from 01.06.1992, the date of agreement till realisation and costs. In the absence of a challenge raised by the defendant against the decree and judgment, the direction issued by the trial court in that respect is maintained. Appeal being devoid of any merits, is dismissed. In the absence of a challenge raised by the defendant against the decree and judgment, the direction issued by the trial court in that respect is maintained. Appeal being devoid of any merits, is dismissed. No order as to costs.