Research › Search › Judgment

Andhra High Court · body

2024 DIGILAW 658 (AP)

S. Rahmath Bi v. Unnam Pullamma

2024-06-19

V.GOPALA KRISHNA RAO

body2024
JUDGMENT : V. Gopala Krishna Rao, J. 1. This Appeal, under Section 96 of the Code of Civil Procedure [for short 'the C.P.C.'], is filed by the Appellants/plaintiffs challenging the Decree and Judgment, dated 19.12.2001, in O.S. No. 14 of 1998 passed by the learned Additional Senior Civil Judge, Kurnool [for short 'the trial Court']. The Respondents herein are the defendants in the said Suit. 2. The Plaintiffs filed the above said suit for specific performance of the agreement of sale dated 29.03.1994 and also for grant of compensation for Ac.0.50 cents of land which is part of the suit schedule land. 3. Both the parties in the Appeal will be referred to as they are arrayed before the trial Court. 4. The brief averments of the plaint, in O.S. No. 14 of 1998, are as under: i) The first plaintiff is the wife of one late Shaik Mahaboob Peeran. Plaintiffs 2 to 12 are the children of Mahaboob Peeran. The first defendant is the mother of the second defendant. The first defendant got another son by name Unnam Ramakrishna Reddy. On 29.03.1994 the first defendant executed an agreement of sale in respect of the suit schedule property in favour of late Mahaboob Peeran agreeing to sell the same @ Rs.1,50,000/- per acre. The extent agreed to be sold is Ac.3.30 cents situated in two survey numbers. On the date of agreement of sale, the first defendant received an advance of Rs.1,00,000/-. The balance of sale consideration was agreed to be paid within 6 months. Subsequently on 10.04.1994 and on 19.05.1994 Ramakrishna Reddy, who is the elder son of first defendant, received an amount of Rs.5,000/- each on behalf of first defendant and the first defendant herself received an amount of Rs.20,000/- on 11.05.1994. The said payments were endorsed on the agreement of sale, altogether the first defendant has received an amount of Rs.1,30,000/. When the first defendant failed to execute sale deeds, inspite of demands made by late Mahaboob Peeran, then Mahaboob Peeran issued lawyer's notice on 16.09.1994 to the first defendant demanding her to perform her part of contract. ii) On enquiries, Mahaboob Peeran came to know that the correct survey numbers are 135/2 and 136/2 and the actual extent available was Ac.2.84 cents, but not Ac.3.30 cents. Late Mahaboob Peeran expressed his willingness to perform his part of contract even after the land was measured. ii) On enquiries, Mahaboob Peeran came to know that the correct survey numbers are 135/2 and 136/2 and the actual extent available was Ac.2.84 cents, but not Ac.3.30 cents. Late Mahaboob Peeran expressed his willingness to perform his part of contract even after the land was measured. The first defendant got issued a reply notice on 17.11.1994 admitting the agreement of sale but stating that she has gifted Ac.0.50 cents in survey No. 135/2 on the Western side with specific boundaries to second defendant on 14.06.1990 and the sale transaction was arranged at the behest of her elder son Ramakrishna Reddy and the first defendant expressed her willingness to execute sale deed with regard to the remaining portion of the land at the price agreed to. Late Mahaboob Peeran was willing to forego Ac.0.50 cents of land. It was discovered that actual survey numbers are 135/2 and 136/2 and the exact extent contained in those survey numbers was not Ac.2.84 cents, but actually Ac.2.34 cents was available. In these circumstances, the plaintiffs filed a suit for specific performance of agreement of sale. 5. The defendants filed a written statement by denying the averments mentioned in the plaint and further contended as under: - i) The first defendant never intended to sell the suit schedule property to anybody including late Mahaboob Peeran. There were no consultations also. The agreement of sale is a concocted one, the first defendant did not sign in the alleged agreement of sale dated 29.03.1994 and she did not receive any amount as mentioned in the agreement of sale. ii) The defendants filed additional written statement. After amending the written statement, the first defendant took a plea which is contrary to her pleadings in the written statement in the first instance. As per the amended pleadings, prior to one week of Ex.A5, first defendant informed that she was always ready and willing to receive balance of sale consideration and execute the sale deed for actual extent of Ac.2.34 cents at the rate of Rs.1,50,000/- per acre, but Mahaboob Peeran refused to accept the said offer and he wanted her to perform the whole part of the contract. Now it is very well clear that the first defendant is in capable of performing her part of contract. Now it is very well clear that the first defendant is in capable of performing her part of contract. During his life time, Mahaboob Peeran not accepted the offer made by the first defendant, who was willing to execute sale deed for Ac.2.34 cents at the agreed site. Now the price of the land has been increased enormously, hence, the plaintiffs have come forward to purchase the suit schedule land, therefore, the plaintiffs are not entitled to the relief of specific performance of agreement of sale and the suit is liable to be dismissed as the time was essence of contract. 6. After filing the amended written statement, the plaintiffs filed a rejoinder contending that late Mahaboob Peeran was ready and willing to purchase Ac.2.34 cents provided a way is shown to the said land from the National High Way. As an easement of necessity, the plaintiffs are entitled to claim a right of way to the Ac.0.50 cents of land owned by the second defendant and the plaintiffs are entitled for the relief of specific performance to obtain a sale deed for Ac.2.34 cents and in respect of Ac.0.50 cents of land, the plaintiffs are entitled to compensation. 7. Based on the above pleadings, the trial Court framed the following issues: (i) Whether the suit agreement of sale dated 29.03.1994 is true, valid and binding on the defendants? (ii) Whether the payment endorsements dated 10.04.1994, 11.05.1994 and 19.05.1994 are true? (iii) Whether the plaintiffs are entitled for specific performance of contract as prayed for? (iv) Whether the plaintiffs are entitled for possession of suit schedule property? (v) To what relief? 8. During the course of trial in the trial Court, on behalf of the Plaintiffs, PW1 was examined and Ex.A1 to Ex.A11 were marked. On behalf of the Defendants DW1 and DW2 were examined and Ex.B1to Ex.B4 were marked. 9. After completion of the trial and on hearing the arguments of both sides, the trial Court dismissed the suit, but the trial Court granted relief of refund of advance amount, vide its judgment dated 19.12.2001, against which the present appeal is preferred by the appellants/plaintiffs in the Suit questioning the Decree and Judgment passed by the trial Court. 10. Heard Sri Srinivasa Rao Bodduluri, learned counsel for appellants/plaintiffs and Sri O.Manohar Reddy, learned senior counsel on behalf of Sri P.Hema Chandra, learned counsel for respondents. 11. 10. Heard Sri Srinivasa Rao Bodduluri, learned counsel for appellants/plaintiffs and Sri O.Manohar Reddy, learned senior counsel on behalf of Sri P.Hema Chandra, learned counsel for respondents. 11. The learned counsel for appellants would contend that the Court below has committed a grave error in dismissing the main relief of specific performance of agreement of sale and the direction given by the Court below in refund of advance amount is contrary to law, since the plaintiffs have never prayed for alternative relief of refund of advance amount. He would further contend that the Court below has committed a grave error in came to conclusion that the suit is barred by limitation. He would further contend that the time is not an essence of contract, but the trial Court came to wrong conclusion that the time is an essence of contract. He would further contend that the trial Court came to wrong conclusion and dismissed the main relief of specific performance of agreement of sale and granted alternative relief of refund of advance amount, even though the plaintiffs have not claimed the refund of advance amount and the appeal may be allowed by setting aside the finding given by the learned trial Judge and the suit may be decreed and the relief of specific performance of agreement of sale may be granted. 12. Per contra, the learned senior counsel for the respondents would contend that on appreciation of entire evidence on record, the trial Court rightly came to conclusion that the plaintiffs are not entitled main relief of specific performance of agreement of sale and the plaintiffs are entitled alternative relief of refund of advance amount and the appeal may be dismissed. 13. Having regard to the pleadings in the Suit and the findings recorded by the trial Court and in the light of rival contentions and submissions made on either side before this court, the following points would arise for determination: I. Whether the suit is barred by limitation? II. Whether the appellants/plaintiffs are entitled the main relief of specific performance of agreement of sale dated 29.03.1994? III. Whether the trial Court is justified in dismissing the main relief of specific performance of agreement of sale and granting alternative relief of refund of advance amount? 14. Point No. 1: Whether the suit is barred by limitation? II. Whether the appellants/plaintiffs are entitled the main relief of specific performance of agreement of sale dated 29.03.1994? III. Whether the trial Court is justified in dismissing the main relief of specific performance of agreement of sale and granting alternative relief of refund of advance amount? 14. Point No. 1: Whether the suit is barred by limitation? The case of the plaintiffs is that the first defendant is the mother of the second defendant and the first defendant also got another son by name Unnam Ramakrishna Reddy. The plaintiffs further pleaded that the first plaintiff is wife of one Shaik Mahaboob Peeran and other plaintiffs are the children of Mahaboob Peeran and on 29.03.1994 the first defendant executed an agreement of sale in respect of suit schedule property in favour of late Mahaboob Peeran agreeing to sell the same at the rate of Rs.1,50,000/- per acre and the extent agreed to be sold is Ac.3.30 cents situated in two survey numbers. The plaintiffs further pleaded that the first defendant received advance amount of Rs.1,00,000/- on the date of agreement of sale and the balance of sale consideration was agreed to be paid within 6 months. The plaintiffs further pleaded that subsequently on 10.04.1994 Unnam Ramakrishna Reddy, the elder son of first defendant received Rs.5,000/- on behalf of first defendant and on 11.05.1994 the first defendant herself received another amount of Rs.20,000/- and on 19.05.1994 the said Ramakrishna Reddy received another amount of Rs.5,000/- on behalf of first defendant. In total, Shaik Mahaboob Peeran paid an amount of Rs.1,30,000/- to the defendants. The plaintiffs further pleaded that despite of issuance of legal notice, the defendants failed to come forward to discharge their part of the contract and further by issuing a reply notice, the defendant No. 1 pleaded that she executed a registered gift deed in favour of second defendant for an extent of Ac.0.50 cents long back i.e., 4 years prior to the date of Ex.A1. The plaintiffs further pleaded that some of the extent of land was acquired by the government under Land Acquisition Act prior to the gift deed itself and the first defendant suppressed the said real facts and entered into an agreement with Shaik Mahaboob Peeran for total extent of Ac.3.30 cents, later the Shaik Mahaboob Peeran died and that the plaintiffs being legal representatives of Shaik Mahaboob Peeran filed the present suit. 15. 15. The suit is based on Ex.A1 agreement of sale said to have been executed by first defendant. The recitals of Ex.A1 are: "The first defendant agreed to sell Ac.3.30 cents in survey Nos. 136 and 135 of Mamidalapadu village to one late Mahaboob Peeran on 29.03.1994 and the agreed price is Rs.1,50,000/- per acre and on the date of agreement Shaik Mahaboob Peeran paid Rs.1,00,000/- and the remaining balance of sale consideration has to be paid within 6 months, otherwise, the advance amount will be forfeited". The above recitals goes to show that on the date of Ex.A1 agreement of sale Shaik Mahaboob Peeran paid Rs.1,00,000/- as advance sale consideration to the first defendant. The above recitals of Ex.A1 go to show that within 6 months from the date of Ex.A1 i.e., on or before 29.09.1994 Mahaboob Peeran has to pay the remaining balance sale consideration. Furthermore, Ex.A1 goes to show that on 10.04.1994 and on 19.05.1994 the elder son of first defendant i.e., Ramakrishna Reddy received an amount of Rs.5,000/- each, respectively, on behalf of first defendant which is not at all disputed by the first defendant in Ex.A7 reply notice. The agreement of sale goes to show that on 11.05.1994 the first defendant herself received another Rs.20,000/-. The above payment endorsement goes to show that within 40 days the defendant No. 1 received total Rs.30,000/- under Ex.A2 to Ex.A4 towards part payments. Ex.A5 goes to show that on 16.09.1994 within 6 months from the date of Ex.A1, Mahaboob Peeran issued a legal notice to the first defendant. Ex.A5 recitals goes to show that Shaik Mahaboob Peeran is ready and willing to pay the balance sale consideration and ready to obtain a registered sale deed and on verification of actual extent of measurements, he demanded the first defendant to execute a registered sale deed by receiving the balance amount on or before 29th of September 1994. Ex.A6 goes to show that on 28.09.1994 the first defendant received the legal notice. In Ex.A5 it was specifically pleaded by Shaik Mahaboob Peeran that the time is not an essence of contract. After receipt of legal notice, after a lapse of more than 2 1/2 months, the first defendant issued Ex.A7 reply notice. In Ex.A7 reply notice, the first defendant admitted the execution of Ex.A1 agreement of sale and also receipt of part payments under Ex.A2 to Ex.A4. After receipt of legal notice, after a lapse of more than 2 1/2 months, the first defendant issued Ex.A7 reply notice. In Ex.A7 reply notice, the first defendant admitted the execution of Ex.A1 agreement of sale and also receipt of part payments under Ex.A2 to Ex.A4. In Ex.A7 reply notice, which is a belated reply by the first defendant, after a lapse of more than 2 1/2 months from the date of receipt of Ex.A5, it was specifically pleaded that she gifted away the Ac.0.50 cents of land in survey No. 135/2 on the Western side with specific boundaries to her second son Unnam Venkata Reddy i.e., second defendant herein and put him in possession of the gifted land and the gift is evidenced by registered gift deed dated 14.06.1990 and that she has no title with regard to the said Ac.0.50 cents of land. 16. Ex.A7 recitals go to show that the first defendant suppressed about the execution of gift deed for Ac.0.50 cents in favour of second defendant and executed Ex.A1 for total extent of Ac.3.30 cents including Ac.0.50 cents of gifted property, therefore, the conduct of first defendant is highly suspicious from the date of contract itself. Furthermore, it is not in dispute by both sides that some of the land was acquired by the government away back prior to the Ex.A1 agreement itself that was suppressed by the first defendant and the same was noticed by the plaintiffs subsequent to the receipt of Ex.A7 reply notice. Ex.A8 goes to show that another notice is issued by Mahaboob Peeran to the first defendant informing with a request to execute a sale deed for total extent because the second defendant is none other than the son of first defendant and both are residing together and the Mahaboob Peeran pleaded that he will take necessary steps for prosecuting the first defendant because she fraudulently committed a mistake by suppressing the execution of gift deed and also acquisition of some of the extent of land by the government under Land Acquisition Act. In response to Ex.A8, the first defendant issued Ex.A9 reply notice dated nil along with plan, in Ex.A9 reply notice it was demanded the Mahaboob Peeran to obtain a regular registered sale deed within 10 days of receipt of Ex.A9 notice. In response to Ex.A8, the first defendant issued Ex.A9 reply notice dated nil along with plan, in Ex.A9 reply notice it was demanded the Mahaboob Peeran to obtain a regular registered sale deed within 10 days of receipt of Ex.A9 notice. The date is not at all mentioned in Ex.A9 notice, but there was a specific reference in Ex.A9 that in response to the Ex.A8 notice issued by the plaintiffs dated 05.12.1994, Ex.A9 reply notice was issued, it means that it was issued subsequent to 05.12.1994. No doubt in Ex.A9 reply notice which is said to have been issued in the month of December 1994, the first defendant demanded the plaintiffs to obtain a regular registered sale deed within 10 days of receipt of the said notice. 17. The recitals of Ex.A1 go to show that the first defendant executed Ex.A1 agreement of sale on 29.03.1994 and agreed to sell Ac.3.30 cents in survey No. 135 and 136 of Mamidalapadu village and agreed to sell for Rs.1,50,000/- per acre and she received an amount of Rs.1,00,000/- as advance and the time limit fixed for specific performance of contract is 6 months i.e., within 28.09.1994. As stated supra, within 40 days, Shaik Mahaboob Peeran paid Rs.30,000/- under Ex.A2 to Ex.A4 part payment endorsements and the said Shaik Mahaboob Peeran got issued a legal notice on 16.09.1994 under Ex.A5 within 6 months from the date of Ex.A1 contract i.e., before a stipulated date dated 28.09.1994 with a demand to execute a regular registered sale deed and he is ready to pay the remaining balance sale consideration and he demanded the first defendant to measure the land. Ex.A6 goes to show that the said legal notice was received by the first defendant within 6 months' time stipulated in Ex.A1. Ex.A7 reply notice is issued to Ex.A5 notice which is said to have been given after 2 1/2 months from the date of receipt of Ex.A5 legal notice. In the said Ex.A7 reply notice, it was specifically mentioned by the first defendant that she is unable to execute a sale deed for total extent of Ac.3.30 cents mentioned in Ex.A1 agreement of sale. In the said Ex.A7 reply notice, it was specifically mentioned by the first defendant that she is unable to execute a sale deed for total extent of Ac.3.30 cents mentioned in Ex.A1 agreement of sale. It was further recited in Ex.A7 that 4 years prior to Ex.A1 i.e., 14.06.1990, she executed a gift deed in favour of second defendant for an extent of Ac.0.50 cents of land and that she is unable to execute a regular registered sale deed for the total extent mentioned in Ex.A1 agreement of sale. For the aforesaid reasons it is clear that on 17.11.1994 by issuing a reply notice under Ex.A7 the first defendant set up a new case instead of executing a registered sale deed by stating that she executed a gift settlement deed for an extent of Ac.0.50 cents in favour of her son i.e., second defendant, 4 years prior to Ex.A1 agreement of sale and she further replied that she is not having any title for the said Ac.0.50 cents of land and she is unable to execute a sale deed for total extent of Ac.3.30 cents, which terms are not there in Ex.A1, therefore, dated 17.11.1994 i.e., the date of issuance of reply notice by the first defendant has to be treated as denial in respect of extent of property is concerned. These terms are against the terms of Ex.A1 contract. The conduct of the party i.e., first defendant clearly goes to show on knowing fully well that she executed a registered gift settlement deed 4 years prior to Ex.A1 agreement of sale, she executed Ex.A1 for total extent of Ac.3.30 cents, furthermore, she is a signatory and even prior to the said gift deed, the government acquired Ac.0.46 cents of land under Land Acquisition Act, that was also suppressed at the time of execution of Ex.A1 agreement of sale by the first defendant, therefore, from the date of contract i.e., from the beginning itself, the total malafides are with the first defendant, such a party is not entitled to an equities. 18. As stated supra, dated 17.11.1994 has to be treated as a denial. The decree passed by the trial Court goes to show that the suit is filed by the plaintiffs on 13.11.1997 i.e., within 3 years from the date of denial i.e., from 17.11.1994. 18. As stated supra, dated 17.11.1994 has to be treated as a denial. The decree passed by the trial Court goes to show that the suit is filed by the plaintiffs on 13.11.1997 i.e., within 3 years from the date of denial i.e., from 17.11.1994. As per Article 54 of Schedule to the Act, the time limit for fixing specific performance of contract of sale is 3 years from the date fixed for the performance or if no such date is fixed when the plaintiff has noticed that performance is refused. Here, originally 6 months' time is fixed in Ex.A1 agreement of sale and within 6 months of Ex.A1 agreement of sale the Shaik Mahaboob Peera paid Rs.30,000/- towards part payments under Ex.A2 to Ex.A4 and the said Mahaboob Peeran also issued a legal notice within six months from the date of Ex.A1 with a request that he is ready with balance sale consideration and to execute a sale deed and within stipulated time the first defendant received the said notice and in the said notice Shaik Mahaboob Peeran specifically pleaded that time is not an essence of contract. Furthermore, after a lapse of 2 1/2 months from the date of receipt of legal notice, the first defendant issued a reply notice to Ex.A5 by expressing her inability to execute a sale deed for total extent of Ex.A1 agreement of sale. In Ex.A7 it was not specifically pleaded by the first defendant that the time is essence of contract. As stated supra, Shaik Mahaboob Peeran pleaded in Ex.A5 notice that the time is not an essence of contract, the same is not denied by the first defendant in reply notice dated 17.11.1994. Here, the plaintiffs noticed the first time for refusal of terms of Ex.A1 agreement of sale by way of reply notice issued by the first defendant dated 17.11.1994, the suit is filed on 13.11.1997 i.e., within 3 years from the date of refusal of terms of Ex.A1 agreement of sale i.e., 17.11.1994. Therefore, the suit is filed within the period of limitation. 19. The learned counsel for respondents placed a reliance in Sabbir (dead) through L.Rs vs. Anjuman (dead) through L.Rs 2023 SCC online SC 1292. Therefore, the suit is filed within the period of limitation. 19. The learned counsel for respondents placed a reliance in Sabbir (dead) through L.Rs vs. Anjuman (dead) through L.Rs 2023 SCC online SC 1292. In that decision it was held as follows: The limitation for filing a suit for specific performance, as per Article 54 of the Schedule to The Limitation Act, 1963 is 3 years 'from the date fixed for performance or if no such date is fixed, when the plaintiff has notice that the performance is refused.' In Ghewarchand v. Mahendra Singh, 2018 INSC 840 : (2018) 10 SCC 588 , it was observed that when deciding upon the question of limitation, it is mainly required to see the plaint allegations and how the plaintiff has pleaded the accrual of cause of action for filing of the suit. Apropos limitation, this Court observed, in Basawaraj v. Land Acquisition Officer, 2013 INSC 551 : (2013) 14 SCC 81 as under: '12. It is a settled legal proposition that law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the statute so prescribes. The court has no power to extend the period of limitation on equitable grounds. "A result flowing from a statutory provision is never an evil. A court has no power to ignore that provision to relieve what it considers a distress resulting from its operation." The statutory provision may cause hardship or inconvenience to a particular party but the court has no choice but to enforce it giving full effect to the same. The legal maxim dura lex sed lex which means "the law is hard but it is the law", stands attracted in such a situation. It has consistently been held that, "inconvenience is not" a decisive factor to be considered while interpreting a statute. 13. The statute of limitation is founded on public policy, its aim being to secure peace in the community, to suppress fraud and perjury, to quicken diligence and to prevent oppression. It seeks to bury all acts of the past which have not been agitated unexplainably and have from lapse of time become stale. According to Halsbury's Laws of England, Vol. 28, p. 266: "605. It seeks to bury all acts of the past which have not been agitated unexplainably and have from lapse of time become stale. According to Halsbury's Laws of England, Vol. 28, p. 266: "605. Policy of the Limitation Acts.- The courts have expressed at least three differing reasons supporting the existence of statutes of limitations namely, (1) that long dormant claims have more of cruelty than justice in them, (2) that a defendant might have lost the evidence to disprove a stale claim, and (3) that persons with good causes of actions should pursue them with reasonable diligence." An unlimited limitation would lead to a sense of insecurity and uncertainty, and therefore, limitation prevents disturbance or deprivation of what may have been acquired in equity and justice by long enjoyment or what may have been lost by a party's own inaction, negligence or laches. 20. The learned counsel for respondents placed another reliance in Raman (dead) by legal representatives vs. R.Natarajan 2022 INSC 954 : (2022) 10 SCC 143 . In that decision the Apex Court held as follows: But as a matter of fact, the limitation for filing a suit for specific performance, in terms of Article 54 of the Schedule to the Limitation Act, 1963 is three years, "from the date fixed for the performance or if no such date is fixed, when the plaintiff has notice that the performance is refused". 21. As per article 54 of the schedule to the Act, the time limit fixed for specific performance of contract is 3 years and the time from which period begins to run is the date fixed for the performance or if no such date is fixed when the plaintiff has noticed that performance is refused. As stated supra in the case on hand, the date of refusal of terms of the Ex.A1 contract by the first defendant is 17.11.1994 which date is reply notice said to have been issued by the first defendant. Within 6 months time Shaik Mahaboob Peeran issued Ex.A5 legal notice, the same is received by the defendant No. 1, after a lapse of more than two months the first defendant issued a reply notice under Ex.A7 by denying execution of registered sale deed for total extent of Ex.A1 agreement. 22. Within 6 months time Shaik Mahaboob Peeran issued Ex.A5 legal notice, the same is received by the defendant No. 1, after a lapse of more than two months the first defendant issued a reply notice under Ex.A7 by denying execution of registered sale deed for total extent of Ex.A1 agreement. 22. In the case of Ahmadsahab Abdul Mulla (dead) vs. Bibijan and others 2009 INSC 445 : 2009(5) SCC 462 , the Apex Court held as follows: The inevitable conclusion is that the expression "date fixed for the performance" is a crystallised notion. This is clear from the fact that the second part "time from which period begins to run" refers to a case where no such date is fixed. To put it differently, when date is fixed it means that there is a definite date fixed for doing a particular act. Even in the second part the stress is on "when the plaintiff has notice that performance is refused". Here again, there is a definite point of time, when the plaintiff notices the refusal. In that sense both the parts refer to definite dates. So, there is no question of finding out an intention from other circumstances. 23. The learned counsel for appellants placed a reliance in Madina Begum and another vs. Shiv Murti Prasad Pandey and others 2016 INSC 567 : AIR 2016 SC 3554 , in that decision, the Apex Court held as follows: In Ahmadsahab Abdul Mulla v. Bibijan and others, the following question was considered by a three-Judge Bench of this Court : "whether the use of the expression "date" used in Article 54 of the Schedule to the Limitation Act, 1963 (in short "the Act") is suggestive of a specific date in the calendar?" While answering this question on a reference made to the three-Judge Bench, this Court considered the meaning of the word "date" and "fixed" appearing in Article 54. Upon such consideration, this Court held that the expression "date fixed for the performance" is a crystallised notion. When a date is fixed it means there is a definite date fixed for doing a particular act. Therefore, there is no question of finding out the intention from other circumstances. It was reiterated that the expression "date" is definitely suggestive of a specified date in the calendar. When a date is fixed it means there is a definite date fixed for doing a particular act. Therefore, there is no question of finding out the intention from other circumstances. It was reiterated that the expression "date" is definitely suggestive of a specified date in the calendar. Paras 11 and 12 of the Report in this regard are of importance and they read as follows: "The inevitable conclusion is that the expression "date fixed for the performance" is a crystallised notion. This is clear from the fact that the second part "time from which period begins to run" refers to a case where no such date is fixed. To put it differently, when date is fixed it means that there is a definite date fixed for doing a particular act. Even in the second part the stress is on "when the plaintiff has notice that performance is refused". Here again, there is a definite point of time, when the plaintiff notices the refusal. In that sense both the parts refer to definite dates. So, there is no question of finding out an intention from other circumstances. Whether the date was fixed or not the plaintiff had notice that performance is refused and the date thereof are to be established with reference to materials and evidence to be brought on record. The expression "date" used in Article 54 of the Schedule to the Act definitely is suggestive of a specified date in the calendar. We answer the reference accordingly. The matter shall now be placed before the Division Bench for deciding the issue on merits." In the case on hand, the decree passed by the trial court goes to show that the suit is filed on 13.11.1997 and the same was returned and represented on 09.03.1998. The decree of the trial Court goes to show that the suit is filed on 13.11.1997 within 3 years from the date of Ex.A7 reply notice dated 17.11.1994 on which date the first defendant refused to execute a sale deed for total extent mentioned in Ex.A1 agreement of sale and first defendant expressed her inability to perform her part of contract of Ex.A1 agreement of sale. Therefore, the limitation to file the suit within 3 years from the date of refusal starts from 17.11.1994 onwards. Therefore, the limitation to file the suit within 3 years from the date of refusal starts from 17.11.1994 onwards. As stated supra, the suit is filed before the trial Court on 13.11.1997, therefore the suit is filed within the period of limitation, accordingly, the point No. 1 is answered in favour of the appellants. 24. Point No. 2: Whether the appellants/plaintiffs are entitled the main relief of specific performance of agreement of sale dated 29.03.1994? The suit is based on Ex.A1 agreement of sale said to have been executed by the first defendant. The plaintiffs herein claimed the relief of specific performance of agreement of sale dated 29.03.1994, alternative relief of refund of advance amount is not sought by the plaintiffs. It is quite surprise that the trial Court came to conclusion that the suit is not filed within a period of limitation and the suit is barred by law of limitation, but the trial Court granted alternative relief of refund of advance amount, which shall not be granted in such a case the suit is barred by limitation. In fact, though the plaintiffs have not sought the relief of refund of advance amount, the trial Court granted alternative relief of refund of advance amount which is against Section 22(2) of Specific Relief Act 1963 and which is also unknown to law. 25. The legal position in this regard is no more res-integra, the law is well settled that, grant of decree of specific performance of agreement of sale is not an automatic and it is a discretionary relief, the same is required to be exercised judiciously sound and reasonably. 26. Ex.A1 is a crucial document based on which the suit is filed, in the written statement itself the execution of Ex.A1 agreement of sale by first defendant and receipt of advance amount of Rs.1,00,000/- on the date of Ex.A1 agreement and receipt of Rs.30,000/- towards part payments under Ex.A2 to Ex.A4 were denied by the first defendant, no doubt, time of 6 months is fixed to perform the part of the contract in Ex.A1 agreement of sale. As stated supra, within a 40 days from the date of Ex.A1 agreement of sale, Shaik Mahaboob Peeran paid an amount of Rs.30,000/- under Ex.A2 to Ex.A4 part payment endorsements respectively and within a stipulated time of 6 months, Shaik Mahaboob Peeran issued a legal notice with a request to execute a regular registered sale deed and he is ready to pay the balance sale consideration. The first defendant also received the said legal notice within a 6 months stipulated time. It was specifically mentioned in Ex.A5 legal notice by Shaik Mahaboob Peeran that time is not an essence of contract even otherwise he is ready with money. In Ex.A7 reply notice the first defendant did not deny the same and did not plead that the time is essence of contract. In Ex.A7 reply notice dated 17.11.1994 it was admitted by the first defendant about the execution of agreement of sale and receipt of advance sale consideration and receipt of amounts under Ex.A2 to Ex.A4 part payment endorsements, contrary to the contents of reply notice dated 17.11.1994, the first defendant mentioned in her written statement by denying the Ex.A1 agreement of sale and also receipt of advance amount and also part payment endorsements. Subsequently on filing a petition vide I.A. No.473 of 2000 dated 29.12.2000 written statement was amended and additional written statement was also filed, later, after amending the written statement, the first defendant took a plea which is contrary to what she pleaded in the written statement at first instance. As per the amended pleadings, prior to one week of Ex.A5, the first defendant informed that she is always ready and willing to perform the part of the contract and in the amended written statement she admitted the execution of agreement of sale and also receipt of part payment endorsements, therefore, it is clear from the beginning of Ex.A1 agreement of sale itself, the attitude of the first defendant is different and changed her stand several times. The conduct of parties has to be taken into consideration from the beginning in the suit proceedings itself, the first defendant suppressed the real facts and approached the Court with unclean hands by mentioning the false averments by filing a written statement in the Court. The material on record reveals that the first defendant suppressed the fact that the actual survey numbers are 135/2 and 136/2 and not survey Nos. The material on record reveals that the first defendant suppressed the fact that the actual survey numbers are 135/2 and 136/2 and not survey Nos. 135 and 136 and she also suppressed the fact of Ac.0.23 cents of land and Ac.0.23 cents of land in survey No. 135/2 and 136/2 were acquired by the government for the purpose of laying a road by the National High Way Authorities of India and the first defendant also suppressed the fact that on 14.06.1990 she gifted Ac.0.50 cents of land in Survey No. 135/2 in favour of her son i.e., second defendant. Furthermore, the conduct of the parties is utmost importance in the civil suit in this type of specific performance of agreement of sale. The first defendant not only suppressed the crucial facts prior to Ex.A1 agreement of sale but even in the Court proceedings also she changed her stand from one stage to another stage, as stated supra, in the written statement original pleadings the first defendant denied the execution of Ex.A1 agreement of sale and also receipt of advance sale consideration, later the said written statement was got amended by admitting the execution of Ex.A1 agreement of sale. 27. In the case of Shenbagam and others vs. K.K. Rathinavel 2022 INSC 75, the Apex Court held as follows: "True enough, generally speaking, time is not an essence of contract for the sale of immovable property. In deciding whether to grant the remedy of specific performance, specifically in suits relating to sale of immovable property, the Courts must be cognizant of the conduct of the parties, the escalation of the prices of the suit property, and whether one party will unfairly benefit from the decree. The remedy provided must not cause injustice to a party, specifically when they are not at fault". As stated supra, from the date of contract itself, the first defendant changed her version from one stage to another stage and she suppressed the real facts and executed agreement of sale for more extent even though she is not having any title in the said property. Even though, she pleaded that her elder son Ramakrishna Reddy is behind back of the Ex.A1 transaction, it is not the case of the first defendant that she is having enmity with her elder son Unnam Ramakrishna Reddy, to that extent, no evidence is adduced by the first defendant. Even though, she pleaded that her elder son Ramakrishna Reddy is behind back of the Ex.A1 transaction, it is not the case of the first defendant that she is having enmity with her elder son Unnam Ramakrishna Reddy, to that extent, no evidence is adduced by the first defendant. In the case on hand, the conduct of the first defendant has to be taken into consideration. As stated supra, the first defendant has changed her version from one stage to another stage and has taken a contrary to Ex.A7 reply notice with a plea that she denied about the execution of agreement of sale and she denied about the receipt of advance amount, but subsequently, she got amended the written statement, undoubtedly due to attitude of the first defendant i.e., the husband of the first plaintiff and father of other plaintiffs suffered a lot and went into the extent of filing a criminal case against the first defendant and her family members under Section 420 of Indian Penal Code, later, he died on 20.08.1997 by leaving the plaintiffs as legal representatives of the deceased Shaik Mahaboob Peeran. After the death of Shaik Mahaboob Peeran, the plaintiffs herein being the legal representatives of Shaik Mahaboob Peeran got filed the present suit. 28. The learned counsel for respondents would contend that after receipt of Ex.A9 which is a reply notice to notice dated 05.12.1994, the plaintiffs have not taken any steps to obtain a sale deed. The material on record reveals that after receipt of Ex.A9 notice, Shaik Mahaboob Peeran lodged a complaint in Crime No. 333 of 1995 on 27.09.1995 and ultimately the said case was acquitted and later Shaik Mahaboob Peeran died on 20.08.1997 by leaving the plaintiffs as his legal representatives. 29. It was contended by the learned counsel for respondents that after receipt of Ex.A9 Shaik Mahaboob Peeran kept quite without obtaining the regular registered sale deed, further he initiated a criminal complaint before the concerned police. As stated supra, though the specific time limit is fixed for performance of the contract in Ex.A1, subsequently it was extended by first defendant herself. As stated supra, within 6 months of stipulated time, Shaik Mahaboob Peeran himself issued a legal notice by expressing his intention to obtain the registered sale deed after paying balance sale consideration, but the first defendant did not come forward. As stated supra, within 6 months of stipulated time, Shaik Mahaboob Peeran himself issued a legal notice by expressing his intention to obtain the registered sale deed after paying balance sale consideration, but the first defendant did not come forward. It is also relevant to say that the first defendant suppressed the real fact about the acquisition of land of Ac.0.23 cents in survey No. 135/2 and Ac.0.23 cents in survey No. 136/2 by the government for the purpose of laying a road by the National High Way Authority of Indian, and first defendant also suppressed the fact that 4 years prior to Ex.A1, she gifted Ac.0.50 cents of property in survey No. 135/2 to her son i.e., second defendant herein. Admittedly on the date of Ex.A1 itself, the first defendant, with a fraudulent view, did not disclose the gift deed said to have been executed by her in favour of her son i.e., second defendant on 14.06.1990 i.e., 4 years prior to Ex.A1 agreement of sale and so also some part of the land was acquired by the government under Land Acquisition Act and by suppressing the same, she entered into an Ex.A1 agreement of sale. The plaintiffs approached the Court within a period of limitation and prayed the trial Court to grant the main relief of Specific Performance of agreement of sale dated 29.03.1994, the trial Court refused to grant the main relief and granted alternative relief of refund of advance amount which is not originally sought by the plaintiffs. Aggrieved the said decree and judgment passed by the trial Court, the plaintiffs filed an appeal before this Court and prosecuting the said appeal. The intention of the appellants as on today also to obtain a regular registered sale deed from the defendant No. 1 for the available extent of land on ground i.e., Ac.2.34 cents and the plaint is also amended and the plaint schedule is also amended, the first defendant admitted in her evidence in cross examination that she gave instructions to prepare reply notice and written statement. As stated supra, from the beginning itself i.e., from the date of contract itself, the malafides are with the first defendant, such a party is not entitled equities. As stated supra, from the beginning itself i.e., from the date of contract itself, the malafides are with the first defendant, such a party is not entitled equities. Moreover, the plaintiffs fairly approached the Court for seeking relief of specific performance of agreement of sale, since trial Court negatived the main relief of specific performance of agreement of sale, the plaintiffs filed an appeal, the aforesaid circumstances clearly go to show that as on today also the intention of the appellants/plaintiffs is to obtain a regular registered sale deed but not for refund of advance money as ordered by the trial Court. 30. The learned counsel for respondents would contend that PW1 admitted in cross examination that they are not agreeable for taking Ac.2.84 cents excluding Ac.0.50 cents shown in the plan enclosed to Ex.A9 as it will not access to the National High Way and that the main relief cannot be granted. The law is well settled that for arriving conclusion of testimony of witness, the entire deposition of the witness has to be taken into consideration, in the said deposition itself PW1 clearly admits that he is ready and willing to pay the balance sale consideration for the extent of land available on ground, but the first defendant is not came forward to execute a regular registered sale deed in view of the increase of market value of the prices. In cross examination PW1 also admits that they are ready to take Ac.2.34 cents of land which is available on the ground from the first defendant. He further admits that after the exact location of Ac.0.50 cents is identified by surveyor, they are ready to take the sale deed for Ac.2.34 cents. The testimony of PW1 clearly goes to show that the plaintiffs are ready and willing to pay the balance sale consideration for the extent of available land of Ac.2.34 cents. Furthermore, the plaint schedule and boundaries were amended by the plaintiffs, now the extent of plaint schedule is Ac.2.34 cents and specific boundaries and relief prayer is also amended in the plaint and additional written statement is also filed by the first defendant. As per the admissions of both the parties the first defendant is the owner of the amended schedule property of Ac.2.34 cents. 31. As per the admissions of both the parties the first defendant is the owner of the amended schedule property of Ac.2.34 cents. 31. The first defendant i.e., DW1 admitted in her evidence in cross examination itself that Shaik Mahaboob Peeran demanded sale deed for Ac.2.84 cents which included Ac.0.50 cents of land gifted by her to second defendant and she expressed her inability in executing the sale deed for Ac.2.84 cents and she did not fix any time limit for execution of the sale deed and she furnished the particulars of Ac.0.50 cents of land gifted by her to the second defendant. Therefore, it clearly goes to show that the time is not an essence of contract. She further admits that they agreed to sell the suit land @ Rs.1,50,000/- per acre. She further admits that she herself gave instructions to her counsel when the reply notice was issued and she gave instructions to her counsel at the time of drafting of written statement. The execution of Ex.A1 agreement of sale and recitals in Ex.A1 agreement of sale is not at all disputed by the first defendant. 32. The leaned counsel for respondents placed a reliance in J.Samuel and others vs. Gattu Mahesh and others 2012 INSC 31 : (2012) 2 SCC 300 , in that decision, the Apex held as follows: "16. Personal bars to relief.- specific performance of a contract cannot be enforced in favour of a person- (a)-(b) (c) 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, other than terms the performance of which has been prevented or waived by the defendant. Explanation.-For the purposes of clause (c),- (i) where a contract involves the payment of money, it is not essential for the plaintiff to actually tender to the defendant or to deposit in court any money except when so directed by the court; (ii) the plaintiff must aver performance of, or readiness and willingness to perform, the contract according to its true construction." In the case on hand, the first defendant has taken defense in the written statement that she did not execute Ex.A1 agreement of sale and she did not receive advance sale consideration, which is contrary to the plea taken by her in the reply notice, again subsequently she amended the written statement itself and she has taken a new plea in the reply notice that she gifted away Ac.0.50 cents of land prior to Ex.A1 agreement of sale and an extent of Ac.0.46 cents of land was acquired by the government a way back prior to Ex.A1 agreement of sale. All the aforesaid events were suppressed by the first defendant and entered into an agreement of sale for total extent of Ac.3.30 cents even though she is not having any title for more extent of land and subsequently the plaint was amended and the first defendant filed additional written statement. Therefore, the facts and circumstances in the cited decision are different to the instant case. 33. The learned counsel for respondents placed another reliance in Shenbagam and others vs. K.K. Rathinavel 2022 Livelaw SC 74, in that decision it was held as follows: Section 16 of the Specific Relief Act provides certain bars to the relief of specific performance. These include, inter alia, 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, other than terms the performance of which has been prevented and waived by the defendant. In JP Builders v. A Ramadas Rao, a two-judge Bench of this Court observed that Section 16(c) mandates 'readiness and willingness' of the plaintiff and is a condition precedent to obtain the relief of specific performance. The Court held: "Section 16(c) of the Specific Relief Act, 1963 mandates "readiness and willingness" on the part of the plaintiff and it is a condition precedent for obtaining relief of grant of specific performance. The Court held: "Section 16(c) of the Specific Relief Act, 1963 mandates "readiness and willingness" on the part of the plaintiff and it is a condition precedent for obtaining relief of grant of specific performance. It is also clear that in a suit for specific performance, the plaintiff must allege and prove a continuous "readiness and willingness" to perform the contract on his part from the date of the contract. The onus is on the plaintiff. It is settled law that even in the absence of specific plea by the opposite party, it is the mandate of the statute that the plaintiff has to comply with Section 16(c) of the Specific Relief Act and when there is non-compliance with this statutory mandate, the court is not bound to grant specific performance and is left with no other alternative but to dismiss the suit. It is also clear that readiness to perform must be established throughout the relevant points of time. "Readiness and willingness" to perform the part of the contract has to be determined/ascertained from the conduct of the parties." The Court further observed that 'readiness' refers to the financial capacity and 'willingness' refers to the conduct of the plaintiff wanting the performance. In the case on hand from the beginning itself i.e., from the date of contract itself, the total malafides are with the first defendant and the first defendant suppressed the real facts i.e., execution of gift settlement deed in favour of second defendant for an extent of Ac.0.50 cents and Ac.0.46 cents land was acquired by the government a way back prior to Ex.A1 agreement of sale and executed Ex.A1 agreement of sale for total extent including the gifted property and land acquired by the government. Therefore, the conduct of the first defendant is highly suspicious and she is not entitled for equities. 34. The learned counsel for respondents placed another reliance in Saradamani Kandappan vs. S.Rajalakshmi and others 2011 INSC 446 : 2011 (12) SCC 18 , in that decision it was held as follows: The question whether time is the essence of the contract, with reference to the performance of a contract, what generally may arise for consideration either with reference to the contract as a whole or with reference to a particular term or condition of the contract which is breached. In a contract relating to sale of immovable property if time is specified for payment of the sale price but not in regard to the execution of the sale deed, time will become the essence only with reference to payment of sale price but not in regard to execution of the sale deed. Normally in regard to contracts relating to sale of immovable properties, time is not considered to be the essence of the contract unless such an intention can be gathered either from the express terms of the contract or impliedly from the intention of the parties as expressed by the terms of the contract. 35. The learned counsel for respondents placed another reliance of this Court in Chunduru Padmavathi vs. Chunduru Narasimha Rao 2000(2) ALD 106 . In the case on hand, the time is not an essence of contract though 6 months' time is fixed in Ex.A1, subsequently time is extended by the first defendant herself. The first defendant i.e., DW1 admits that she did not fix any time limit for execution of sale deed when she furnished the particulars of Ac.0.50 cents of land gifted by her to second defendant i.e., in Ex.A7 reply notice. Furthermore Ex.A5 legal notice was issued by the Shaik Mahaboob Peeran by expressing his readiness and willingness to perform contract within 6 months period of time, after a lapse of 2 1/2 months beyond 6 months the first defendant issued a reply notice by taking a new plea and refused to execute a regular registered sale deed for total extent. 36. The learned counsel for respondents placed another reliance in Surjit Kaur vs. Naurata Singh and another 2000 INSC 444 : 2000(7) SCC 379 . In the instant case, as stated supra, the first defendant suppressed about the execution of gift deed in favour of second defendant and also some of the land acquired by the government and entered into an agreement of sale with Shaik Mahaboob Peeran and subsequently the plaint schedule was amended and therefore, the facts and circumstances in the cited decision are different to the instant case. 37. The learned counsel for respondents placed another reliance in Shanker Singh vs. Narinder Singh and others 2014 (16) SCC 662 . In the case on hand, the appellants claimed compensation for Ac.0.50 cents of land. 37. The learned counsel for respondents placed another reliance in Shanker Singh vs. Narinder Singh and others 2014 (16) SCC 662 . In the case on hand, the appellants claimed compensation for Ac.0.50 cents of land. Here in the case on hand the first defendant executed a gift deed a way back prior to Ex.A1 for Ac.0.50 cents of land in favour of second defendant. The second defendant is not a party to the agreement. The suit is based on Ex.A1 agreement of sale. Therefore, the plaintiffs are not entitled compensation for the said Ac.0.50 cents of land. At best, they are entitled to get sale deed for the extent of land available on ground in which the first defendant is having title. 38. As stated supra, the suit is filed within a period of limitation. The material on record reveals that the first defendant by suppressing the real things i.e., by suppressing the execution of gift settlement deed for Ac.0.50 cents in favour of her son second defendant and by suppressing Ac.0.46 cents of land acquired by the government under Land Acquisition Act, the first defendant entered into an agreement of sale for Ac.3.30 cents of land with Shaik Mahaboob Peeran under Ex.A1, even though she is not having title for Ac.3.30 cents. Furthermore, she is a signatory and she is not an illiterate. Even though a time limit is fixed for 6 months to perform the part of the contract, Shaik Mahaboob Peeran expressed his readiness and willingness within 6 months period of time and he also issued a legal notice within a stipulated of 6 months, even though the first defendant received the said notice within a stipulated period of 6 months but she issued a reply notice after a lapse of 2 1/2 months' time from the date of receipt of notice by taking a new defense that she executed a gift settlement deed for Ac.0.50 cents of land. The material on record reveals that the first defendant changed her version from one stage to another stage and in these type of cases the conduct of the parties has to be taken into consideration, undoubtedly the malafides are on the part of the first defendant from the beginning itself, in such a case, she is not entitled the equities. The material on record reveals that the first defendant changed her version from one stage to another stage and in these type of cases the conduct of the parties has to be taken into consideration, undoubtedly the malafides are on the part of the first defendant from the beginning itself, in such a case, she is not entitled the equities. The plaintiffs got amended the plaint for Ac.2.34 cents since the first defendant agreed to sell that extent only and after filing of the suit having defeated before the trial Court, the appellants filed an appeal before this Court praying the relief of specific performance of agreement of sale. In the plaint, the plaintiffs specifically pleaded that they are ready and willing to pay the remaining balance sale consideration for the extent of land available on the ground i.e., Ac.2.34 cents i.e., amended plaint schedule. As stated supra, from the date of contract, total malafides are with the first defendant, such a party is not entitled to any equities. Since the second defendant is not a party to the agreement and the first defendant in the case on hand died and her son second defendant who is on record also came on record as a legal representative of the first defendant by virtue of the registered will dated 23.09.2009 executed by the first defendant, therefore, the plaintiffs are entitled the main relief of specific performance of agreement of sale dated 29.03.1994 against the second defendant for amended plaint schedule property of Ac.2.34 cents, accordingly, the point No. 2 is answered. 39. Point No. 3: Whether the trial Court is justified in dismissing the main relief of specific performance of agreement of sale and granting alternative relief of refund of advance amount? In view of my findings on point Nos. 39. Point No. 3: Whether the trial Court is justified in dismissing the main relief of specific performance of agreement of sale and granting alternative relief of refund of advance amount? In view of my findings on point Nos. 1 and 2, the trial Court committed a grave error in dismissing the main relief of specific performance of agreement of sale and granting the alternative relief of refund of advance amount, therefore, the said finding of trial Court is liable to be set aside, but the appellants are not entitled compensation for the extent of Ac.0.50 cents, which was gifted by the first defendant in favour of second defendant, therefore, the plaintiffs/ appellants are entitled the main relief of specific performance of agreement of sale dated 29.03.1994 against the second defendant for amended plaint schedule property in an extent of Ac.2.34 cents, the plaintiffs are directed to pay the balance sale consideration in respect of amended plaint schedule property of Ac.2.34 cents within 2 months from the date of this judgment, if the second defendant failed to receive the same, the plaintiffs are at liberty to deposit the same before the trial Court. The second defendant is directed to execute a regular registered sale deed for amended plaint schedule property of an extent of Ac.2.34 cents by providing easement of necessity to the plaintiffs within one month from the date of receipt of balance of sale consideration or from the date of deposit of balance of sale consideration before the trial Court by the plaintiffs as case may be, failing which the appellants/plaintiffs are at liberty to take necessary steps as per law. With these observations, the appeal is partly allowed. 40. In the result, this appeal is partly allowed. Considering the circumstances of the case, I order that each party do bear their own costs in the appeal. As a sequel, miscellaneous petitions, if any, pending in the Appeal shall stand closed.