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CASE NO.: Appeal (civil)  4033 of 2004

PETITIONER: Bal Krishna & Anr.

RESPONDENT: Bhagwan Das (Dead) & Ors.

DATE OF JUDGMENT: 25/03/2008

BENCH: P.P. NAOLEKAR & LOKESHWAR SINGH PANTA

JUDGMENT: J U D G M E N T P.P. NAOLEKAR, J.: 1.      By this appeal, the appellants (plaintiffs in the suit) (hereinafter  referred to as \023the plaintiffs\024 for the sake of convenience) have challenged  the judgment and order of the High Court dated 7.5.2002 whereby the suit  filed by the plaintiffs on 10.5.1973 for specific performance of the contract  to reconvey the suit property by Manaklal, the predecessor-in-interest of  respondents Nos. 1 and 2  herein (original defendant No. 1 in the suit)  (hereinafter referred to as \023the defendant\024 for the sake of convenience) was  dismissed by the High Court. 2.      The facts necessary are that the suit property was a joint family  property of the plaintiffs, namely, Bal Krishna and Ramanlal, both brothers  and their late grandmother Mainabai.  The parents of the plaintiffs as also  their grandfather late  Ramnarayan Bhutda, husband of late Mainabai had  died much before the execution of the transaction in dispute.  On 19.7.1952,  when the plaintiffs were minors, their late grandmother Mainabai purporting  to act for herself and as guardian of the plaintiffs executed a registered sale  deed vide Exhibit D/1for consideration which was stated to be Rs.25,000/- in  the sale deed and delivered possession to the defendant/vendee.  Mainabai  died on 1.3.1964 and her legal representatives, besides the plaintiffs, were  joined as proforma defendants Nos. 2 to 14.   In the plaint, it was pleaded by  the plaintiffs that they being in need of funds required for discharging the  business debts of the joint family of the plaintiffs, their grandmother  Mainabai, for herself and as their guardian entered into an agreement with  the defendant, according to which a sale deed of the suit house was executed  by her on behalf of herself and as guardian of the plaintiffs in favour of the  defendant  and the defendant was to execute an agreement of reconveyance  on certain terms and conditions in favour of said Mainabai and the plaintiffs.   Accordingly, Mainabai purporting to act on her own behalf and also as  guardian of the plaintiffs, who were both minors at that time, executed a  registered sale deed of the house on 19.7.1952 in favour of the defendant for  consideration which was stated in the deed to be a sum of Rs.25,000/- and  delivered possession of the house to him except one room and one gachhi  which is still in possession of the plaintiffs.    Although the consideration  mentioned in the sale deed was stated to be Rs.25,000/-, as a matter of fact  only a sum of Rs.10,000/- was paid by the defendant as consideration which  has been clearly accepted and acknowledged by the defendant in the  agreement of reconveyance which he later executed in favour of Mainabai  and the plaintiffs on the same day.  By this agreement, the defendant agreed  to reconvey the house to Mainabai and the plaintiffs after receiving from  them the sum of Rs.10,000/- and interest on this amount.  It was further  pleaded by the plaintiffs that all essential terms of reconveyance not having  been fully and properly stated in the aforesaid agreement which was  executed by the defendant on 19.7.1952, certain terms and conditions were  notified by a further agreement which the defendant executed in favour of  the plaintiffs and their grandmother Mainabai on 21.7.1952.  The terms and  conditions for reconveyance as agreed and stated in this document were as  follows:      (1)     The defendant No.1 will reconvey the house to Mainabai and the two

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plaintiffs whenever they shall call upon him to do so by a notice in  writing. (2)     For such reconveyance, Mainabai and the two plaintiffs will be liable  to pay the defendant No.1 the real and original amount which the  later had paid to them for the initial sale of the house, together with  interest on it @ 6% per annum from the date of the original sale to  the date of reconveyance. (3)     The amount which the defendant No. 1 shall realize by way of rent of  the house in question shall after deducting from it the amount spent  by him on house-tax, water tax, tokhat tax, electric charges and  expenditure on repairs, be either paid to him to Mainabai and the  plaintiffs or credit for it shall be given to them towards the amount  payable by them for the reconveyance. (4)     No amount on account of electric charges or water charges shall be  deducted by the defendant No.1 from the rent collected by him in  case he was not required to pay the same and it was collected by him  from the tenants. (5)     It will be open to Mainabai and the plaintiffs to pay to the defendant  No. 1 such sums as they may like from time to time towards the price  of reconveyance and the same shall be accepted and accounted for by  the defendant No. 1 when accounts shall be taken and interest shall  be calculated by ‘kat-miti\022.

It was further pleaded in the plaint that towards the said agreement of  reconveyance, the plaintiffs had paid to the defendant Rs.1,000/- on  13.10.1953  and Rs.4,000/- on 1.2.1955 and the defendant has executed in  their favour two receipts on 13.10.1953 and 1.2.1955 respectively.  As per  the plaint, according to the agreement of reconveyance, the plaintiffs and  defendants Nos. 2 to 14 were entitled to require the defendant (No. 1) to  reconvey the suit house to them by a registered deed after receiving from  them the amount of consideration payable to him as per that agreement.  He  had already been paid Rs.1,000/- on 13.10.1953 and Rs.4,000/- on 1.2.1955.   He was further entitled to receive the balance amount of Rs.5,000/- less the  net rental income of the house received by him which was to be ascertained  after taking an account. For determining the precise balance of the  consideration payable to the defendant according to the agreement of  reconveyance he was to give an account of all sums collected by him as rent  of the house and also of all sums spent by him on account of taxes, repairs or  any other charges and after deducting the amounts spent by him from the  payable amount realized as rent, to adjust the sum towards the balance  amount of Rs.5,000/- and interest which was to be paid to him.  On  7.5.1973, the plaintiffs had approached the defendant personally and  requested him to take the balance price of Rs.5,000/- together with interest  of Rs.10,000/- by kat-miti and after adjusting towards it the net rental  income realized by him to be ascertained after an account, to reconvey the  house to the plaintiffs and defendants Nos. 2 to 14 by executing a registered  sale deed of the house in their favour at their own cost.  Then in paragraph  12 of the plaint, it was averred that ‘the plaintiffs have been and are ready  and willing to perform their part of the contract according to its true  construction\022.  As per the plaint, the cause of action accrued on service of  notice on 9.5.1973 when the defendant failed to comply with the plaintiffs\022  notice dated 7.5.1973.  For the purposes of court fee and jurisdiction, the suit  for specific performance was valued according to the consideration for the  reconveyance on it by kat-miti from 19.7.1952 to the date when the  defendant failed to perform the contract in spite of notice taking into account  the two payments of Rs.1,000/- and Rs.4,000/- already made to the  defendant.  The amount of interest by kat-miti on Rs.10,000/- comes to  Rs.6,930/-.  Accordingly, the suit for specific performance was valued at the  total amount of Rs.16,980/- for the purposes of court fee and jurisdiction.  The plaintiffs, inter alia, made a prayer that ‘defendant No. 1 may be  directed to reconvey the suit house to the plaintiffs and defendants Nos. 2 to  14 by a registered sale deed to be executed by him in consideration of  Rs.11,930/- and to deliver possession of the same to them\022.   3.      The defendant had died even before filing of the written statement  which was then filed by his legal representatives.  It was denied in the

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written statement that the sale deed dated 19.5.1952 was for consideration of  Rs.10,000/- only and not for Rs.25,000/-.  Agreement of reconveyance by  Manaklal either on 19.7.1952 or 21.7.1952 was denied.  They also denied  the terms set out in the agreement.  It was submitted that the signature of  Manaklal was obtained by the plaintiffs on some papers in connection with a  suit filed against late Ramanandji, father of the plaintiffs and it appeared to  them that false agreement and receipts had been prepared by the plaintiffs  using those signed papers.  The demand either oral or by any letter by the  plaintiffs from late Manaklal for execution of the sale deed was denied.   4.      The trial court recorded the finding that the sale deed was for  Rs.25,000/- and not Rs.10,000/-; that there was an agreement of  reconveyance  between the parties but for a total consideration of  Rs.25,000/-; that the agreement dated 21.7.1952, not the one dated  19.7.1952, was enforceable; that the plaintiffs had paid Rs.5,000/- to late  Manaklal and they had always been and were still willing  to perform their  part of the contract; that the suit was within limitation; and that the plaintiffs  were entitled to get the deed of reconveyance executed from the legal  representatives of late Manaklal on payment of balance amount of  Rs.20,000/-.  On these findings, the plaintiffs\022 claim for specific  performance was decreed with direction to the plaintiffs to pay or deposit the  balance consideration amount of Rs.20,000/-. 5.      Both parties aggrieved by the impugned judgment and decree of the  trial court filed first appeals before the High Court.  The grievance of the  plaintiffs was that the trial court committed an error in holding that the sale  deed dated 19.7.1952 was for a total sum of Rs.25,000/- and that said  amount was fixed as consideration for executing the deed of reconveyance.   It was asserted that the plaintiffs were liable only to pay Rs.10,000/- as  consideration amount to get the deed of reconveyance from the legal  representatives of late Manaklal, whereas the legal representatives of late  Manaklal (deceased defendant No. 1) assailed the entire judgment and  decree contending that the trial court erred in holding that execution of the  two agreements Ex.P/1 and Ex. P/2 was duly proved; that the two documents  were not only contradictory and inconsistent but also suspicious.  The  finding that a sum of Rs.5,000/- was paid to late Manaklal and plaintiffs\022  willingness to perform their part of the contract were also challenged.  It was  submitted that as per the plaintiffs\022 own showing it was clear that they were  never ready or willing to pay the entire consideration for reconveyance as  stipulated in the agreement Ex.P/2 and the plaintiffs\022 readiness and  willingness was only to make the payment as per the agreement Ex.P/1 dated  19.7.1952 and not agreement Ex.P/2 dated 21.7.1952. 6.      Both appeals \026 one filed by the plaintiffs and the other by legal  representatives of late Manaklal \026 were dismissed by the High Court on  10.4.1995.  However, in letters patent appeals, the judgment dated 10.4.1995  was set aside and the cases were remanded back    to the learned Single  Judge for rehearing and deciding the matter afresh. 7.      On remand, the High Court found that as per plaintiffs\022 own showing  a subsequent agreement Ex.P/2 was entered into between the parties on  21.7.1952, i.e., two days after execution of the agreement Ex.P/1 dated  19.7.1952.  It was observed by the High Court that although it was the case  of the plaintiffs that the subsequent agreement Ex.P/2 was executed by way  of modification/clarification of the agreement Ex.P/1, but a bare reading of  the agreement Ex.P/2 would show that it was wholly an independent  document making absolutely no reference of Ex.P/1.  So even if the  agreement Ex.P/1 was executed between the parties, the same stood  substituted by a new agreement Ex.P/2 and the agreement Ex.P/1 became  non-existent and neither of the parties was obliged to perform the same.  The  execution of the agreement Ex.P/2 was not seriously contested by the  counsel for the defendants and the High Court concurred with the finding of  the trial court that the factum of execution of agreement Ex.P/2 dated  21.7.1952 was duly established.  The High Court further considered whether  the plaintiffs were ready and willing to perform their part of the contract as  per the agreement Ex.P/2 and held that clause (c) of Section 16 of the  Specific Relief Act, 1963 provides that specific performance of a contract  cannot be enforced in favour of a person who fails to aver and prove that he  has performed or has always been ready and willing to perform the essential

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terms of the contract which are to be performed by him.  Explanation (ii) to  clause (c) makes it clear that the plaintiff must aver performance of, or  readiness and willingness to perform, the contract according to its true  construction.  The compliance of the requirement of Section 16(c) is  mandatory and in the absence of necessary averment in the plaint and in the  absence of proof of the same that the plaintiff has always been ready and  willing to perform his part of the contract, a suit cannot succeed.  The High  Court has held that the plaintiffs have failed to make averment and lead  evidence to prove their readiness and willingness to perform their part of the  contract according to its true construction, i.e., in accordance with the terms  and conditions of the agreement dated 21.7.1952.  The High Court has  further held that although the sale deed was dated 19.7.1952 and the  agreement to reconveyance was dated 21.7.1952 the only step taken by the  plaintiffs was to pay back the amount of Rs.1,000/- on 13.10.1953 and  amount of Rs.4,000/- on 1.2.1955 and thereafter till the service of notice  dated 7.5.1973 and 10.5.1973 when the suit was filed, no steps were taken  by the plaintiffs on their part to show their readiness or willingness to  perform their part of the contract.  Plaintiff No. 1 kept quiet almost for  18  years after attaining majority and plaintiff No. 2 for 7 years, which is  indicative of callous indifference and wilful negligence on the part of the  plaintiffs and, therefore, they were held not entitled for equitable relief of  specific performance of the contract in their favour and consequently the  decree for specific performance passed by the trial court was set aside and  plaintiffs\022 suit was dismissed. However, the legal representatives of late  Manaklal (original defendant No. 1 in the suit) were directed to pay back to  the plaintiffs a sum of Rs.5,000/- with interest at the rate of 6 per cent per  annum.  Aggrieved by this order, the plaintiffs have come up before this  Court by filing a special leave petition which has been converted into the  present appeal. 8.      Section 16 of the Specific Relief Act, 1963 (hereinafter referred to as  \023the Act\024) corresponds with Section 24 of the old Act of  1877 which lays  down that the person seeking specific performance of the contract, must file  a suit wherein he must allege and prove that he has performed or has been  ready and willing to perform the essential terms of the contract, which are to  be performed by him.  The specific performance of the contract cannot be  enforced in favour of the person who fails to aver and prove his readiness  and willingness to perform essential terms of the contract.  Explanation (ii)  to clause (c) of Section 16 further makes it clear that plaintiff must aver  performance of, or readiness and willingness to perform, the contract  according to its true construction.  The compliance of the requirement of  Section 16(c) is mandatory and in the absence of proof of the same that the  plaintiff has been ready and willing to perform his part of the contract suit  cannot succeed.  The first requirement is that he must aver in plaint and  thereafter prove those averments made in the plaint.  The plaintiff\022s  readiness and willingness must be in accordance with the terms of the  agreement.  The readiness and willingness of the plaintiff to perform the  essential part of the contract would be required to be demonstrated by him  from the institution of the suit till it is culminated into decree of the court.  It  is also settled by various decisions of this Court that by virtue of Section 20  of the Act, the relief for specific performance lies in the discretion of the  court and the court is not bound to grant such relief merely because it is  lawful to do so.  The exercise of the discretion to order specific performance  would require the court to satisfy itself that the circumstances are such that it  is equitable to grant decree for specific performance of the contract.  While  exercising the discretion, the court would take into consideration the  circumstances of the case, the conduct of parties, and their respective  interests under the contract.  No specific performance of a contract, though it  is not vitiated by fraud or misrepresentation, can be granted if it would give  an unfair advantage to the plaintiff and where the performance of the  contract would involve some hardship on the defendant, which he did not  foresee.  In other words, the court\022s discretion to grant specific performance  is not exercised if the contract is not equal and fair, although the contract is  not void. 9.      As per the pleadings, the plaintiffs\022 allegation is that on the date of the  execution of the said deed dated 19.7.1952, there was an agreement of resale

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entered into between the parties on 19.7.1952 itself.  It is further alleged that  as the terms of the agreement dated 19.7.1952 were not complete, another  supplementary agreement of reconveyance was entered into and executed  between the parties on 21.7.1952.   10.     On 19.7.1952, an agreement is said to have been executed by  Manaklal, predecessor-in-title of the defendants in favour of the plaintiffs.   As per that agreement, he had purchased the suit house by a registered sale  deed on the same day.  Although an amount of Rs.25,000/- has been  mentioned in the sale deed as sale consideration, he had not paid the said  amount to the plaintiffs.  He had only given Rs.10,000/- and the balance  amount has been paid by the plaintiffs which has been added to the amount  and the amount of Rs.25,000/- has been paid as sale consideration.  When  the resale of the house will be executed, the plaintiffs will be required to pay  only an amount of Rs.10,000/- along with interest and the sale deed will be  executed.  Execution of this document does not stand to reason as to how the  amount of Rs.15,000/- has been paid by the plaintiffs to the defendant to be  included along with the amount of Rs.10,000/- which has been paid by him  to show the consideration of Rs.25,000/- as sale consideration.  When the  need of execution of the sale deed in favour of the defendant was alleged to  be the plaintiffs\022 need of  money on that date, then how it is that Rs.15,000/-  has been paid by the plaintiffs to the defendant whereas only Rs.10,000/-  was secured by sale of the house to the defendant.  If the plaintiffs were in  need of money and already possessed of Rs.15,000/-, then why they will sell  the house for a consideration Rs.10,000/- only.  Apart from this fact, the  amount of Rs.10,000/- in the document is written by hand, whereas other  contents of the document are typed.  The handwritten figure has not been  initialled by the defendant or the plaintiffs.  The sale deed executed on  19.7.1952 shows that the consideration for the sale of the house was paid :  Rs.5000/- as cash and Rs.20,000/- by way of Cheque No.877383 drawn on  Punjab National Bank, Siyaganj Branch.  Sale deed does not show that the  amount of Rs.10,000/- was paid in cash.  Endorsement on the sale deed  shows that this amount was paid by cash and cheque to the plaintiffs before  the Registrar.  These facts clearly belies the case of the plaintiffs that the sale  deed was executed for only amount of Rs.10,000/- and that agreement of  resale was executed by the defendant for a consideration of Rs.10,000/-  only.  Both the courts have for different reasons disbelieved this document.   Execution of the document for resale on the date of execution of the sale  deed for different consideration by the defendant than the sale consideration  cannot be believed.  11.     Ex.P/2 dated 21.7.1952 is a document executed by the defendant after  execution of the sale deed dated 19.7.1952 and the alleged document Ex.P/1  dated 19.7.1952.  It is the plaintiffs\022 case that as the terms of Ex.P/1 were not  complete, the second document was executed on 21.7.1952.  From a bare  reading of the document dated 21.7.1952, it does not appear to be so.  The  document Ex.P/2 dated 21.7.1952 does not refer to the document dated  19.7.1952, nor is there any mention that the sale consideration was  Rs.10,000/- only. This documents contends that the defendant had purchased  the suit house for a consideration of Rs.25,000/- by registered sale deed; and  that the house was sold by the plaintiffs as they were in need of money.  It  was agreed by the parties that whenever the plaintiffs would want to  purchase the house, then the sale deed would be executed by the defendant  in their favour on certain terms and conditions which have already been  referred by us.  From a bare reading of this document, it does not appear that  the document was executed in pursuance of the first document.  The  document dated 21.7.1952 is an independent separate document wherein the  defendant had agreed to reconvey the house whenever asked for by the  plaintiffs.   12.     It is urged by Shri S.K. Gambhir, learned senior counsel for the  appellants that on the language used in clause (c) of Section 16 read with  Explanation (ii), a contract may be open to more than one construction and a  plaintiff may allege the alternative construction to which the contract may be  open and claim relief on that basis.  The true construction of the contract  would be that construction which is finally accepted by the court.  The  plaintiff\022s suit would not be dismissed merely because one of the  constructions placed by the plaintiff to the contract was not accepted by the

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court where the alternative construction is being alleged and proved.      13.     In the present case, the plaintiffs placed reliance on paragraph 12 of  the plaint where it has been averred that \021the plaintiffs have been and are  ready and willing to perform their part of the contract according to its true  construction\022.  This construction is, no doubt, in tune with the words used in  clause (c) and its explanation (ii) of Section 16 of the Act, but when one  reads this averment in the context of the other averments made in the plaint,  then the averment made in paragraph 12 has a reference to the averments  made in the foregoing paragraphs of the plaint.   14.     In Syed Dastagir v. T.R. Gopalakrishna Setty, AIR 1999 SC 3029,  this Court has held in para 9 as under:         \023\005 In construing a plea in any pleading, Courts must keep in  mind that a plea is not an expression of art and science but an  expression through words to place fact and law of one\022s case for a  relief.  Such an expression may be pointed, precise, some times vague  but still could be gathered what he wants to convey through only by  reading the whole pleading, depends on the person drafting a plea.  In  India most of the pleas are drafted by counsels hence aforesaid  difference of pleas which inevitably differ from one to other.  Thus, to  gather true spirit behind a plea it should be read as a whole.  This does  not distract one from performing his obligations as required under a  statute.\024

In Motilal Jain v. Ramdasi Devi (Smt.) and Others, (2000) 6 SCC 420, this  Court has held that an averment as to readiness and willingness in plaint is  sufficient if the plaint, read as a whole, clearly indicates that the plaintiff was  always and is still ready and willing to fulfil his part of the obligations.   Such averment is not a mathematical formula capable of being expressed  only in certain specific words or terms.   Further, in Umabai and Another v. Nilkanth Dhondiba Chavan (Dead) by  LRs. and Anr., (2005) 6 SCC 243, this Court in para 30 has said as under:         \023It is well settled that the conduct of the parties, with a view to  arrive at a finding as to whether the plaintiff-respondents were all  along and still are ready and willing to perform their part of contract  as is mandatorily required under Section 16(c) of the Specific Relief  Act must be determined having regard to the entire attending  circumstances.  A bare averment in the plaint or a statement made in  the examination-in-chief would not suffice.  The conduct of the  plaintiff-respondents must be judged having regard to the entirety of  the pleadings as also the evidences brought  on records.\024

15.     When the entire plaint is read, there is no reference of the agreement  dated 21.7.1952 about which the plaintiffs have alleged that they are ready  and willing to perform their part of the contract as per the agreement.  From  the entire tenor of the plaint, it is clear that the plaintiffs have pleaded for  their readiness and willingness to perform their part of the contract as per the  agreement dated 19.7.1952.  The agreement dated 21.7.1952 has been  referred to only for the purposes of accounting to be made for the payment  of the consideration for resale of property and there also the plaintiffs have  specifically stated that they have already paid Rs.1,000/- on 13.10.1953 and  Rs.4,000/- on 1.2.1955 and the defendant is entitled to receive the balance of  Rs.5,000/- less the net rental income of the house received by him.  16.     In the evidence also, the plaintiffs have throughout maintained that the  agreement of reconveyance was for a sale consideration of Rs.10,000/- only  of which Rs.5,000/-  has already been paid \026 Rs.1,000/- on 13.10.1953 and  Rs.4,000/- on 1.2.1955.  There is no specific statement made by the plaintiffs  in examination-in-chief or in cross-examination that plaintiff No.1 Bal  Krishna and/or his brother plaintiff No.2 Ramanlal  were/was ready or are/is  ready and willing to pay the entire amount of Rs.25,000/- as consideration  amount to the defendant for reconveying the suit house.  It may also be  pertinent to note that the finding recorded by the trial court that the sale  consideration of the suit house was Rs.25,000/- was even challenged by the  plaintiffs by filing an appeal before the High Court. 17.     We have already recorded a finding that the document Ex.P/1 dated  19.7.1952 was not executed by the defendant in favour of the plaintiffs.  The

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document Ex.P/2 dated 21.7.1952, which has been executed after the sale  deed dated 19.7.1952, was executed by the defendant for reconveying the  property in favour of the plaintiffs.  That document indicates that the  consideration for the reconveyance would be Rs.25,000/-.  The plaintiffs\022  case throughout in the plaint as well as in the evidence was that they were  and are ready and willing to purchase the suit house for the consideration of  Rs.10,000/-.  In the absence of pleadings or proof by the plaintiffs as to their  willingness and readiness to perform their part of the contract and get the  sale deed executed in their favour on payment of Rs.25,000/-, no case is  made out by the plaintiffs for specific performance of the contract of  reconveyance. 18.     On the above findings, we need not go into the question whether it  would have been just, fair and equitable in the circumstances of the case to  grant the relief of specific performance to the plaintiffs exercising  discretionary power in favour of the plaintiffs. 19.     For the aforesaid reasons, the appeal is dismissed.  However, in the  circumstances of the case, there shall be no order as to costs.