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PETITIONER: OUSEPH VARGHESE

       Vs.

RESPONDENT: JOSEPH ALEY & ORS.

DATE OF JUDGMENT: 18/08/1969

BENCH:

ACT:     Specific  Relief Act 1877 (1 of 1877), s.  12--Suit  for specific performance of oral agreement to re-convey property sold  through  sale-deed-Burden  of proof  on  plaintiff  is heavy--Court  will  rarely  grant  specific  performance  of contract,  on  the  basis of oral  evidence  only--Offer  by defendant  in written statement to sell part of property  to plaintiff   at   certain  price--Offer   not   accepted   by plaintiff--Court can not pass decree in favour of  plaintiff on  the basis of such offer--Costs where both parties   have withheld facts from Court.

HEADNOTE:    The  plaintiff as original owner of the  suit  properties sold  the same to the 1st defendant who. was husband of  the 2nd  defendant.  According to the plaintiff apart ’from  the written  sale-deed there was an oral agreement  between  him and  the  1st  defendant whereunder  the  latter  agrees  to reconvey the properties sold at the same price whenever  the plaintiff called upon him to do so.  The suit was filed  for specific  performance of  the said oral agreement.  The  1st defendant  died even before he filed his written  statement. Before  his death he had gifted the suit properties  to  his wife, the 2nd defendant.  In her ’written statement the  2nd defendant  denied  the agreement pleaded in the  point   but stated that just before his death her husband had agreed  to sell t6 plaintiff item No. 1 of the  suit property less  one acre  of paddy field for a sum of Rs. 11,500 but due to  his illness  the sale could not be effected. She reiterated  the said  offer in her written statement but the  plaintiff  did not  accept  it and the suit proceeded on the basis  of  the agreement  pleaded in the plaint.  The  trial court  decreed the  suit as prayed for.  In appeal the High Court  did  not accept  the  agreement pleaded by the plaintiff   but  still granted  a decree directing the defendant to execute a  sale deed in favour of the plaintiff in respect of item No. 1  of the plaint schedule properties less one acre of paddy  field for a sum of Rs. 11,500.  Both the parties appealed to this HELD.: (i) The burden of proving  the oral agreement was  on the plaintiff.  The sale deed on the face of it evidenced an outright  sale.   The stipulation ha it that  the  purchaser would  not mortgage or assign the properties to anyone  else during  the vendor’s lifetime went against  the  plaintiff’s case inasmuch as it only gave the vendor a right to preempt. ]’here was no satisfactory explanation why such an important thing as the agreement to re-convey was made orally and  not reduced to writing. [923 G,924B] It appeared likely in the present case that neither side had come forward with the true version.  But before a court  can

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grant  a  decree  for  specific  performance,  the  contract pleaded   must  be  a specific  one and the  same  must  be: established  by  convincing evidence.  Rarely a  decree  for specific performance is granted on the basis of an agreement supported solely by oral evidence. [925 D-E]     On the evidence adduced by him the plaintiff had  failed to prove the agreement pleaded in the plaint. [925 F]     (ii)  The High Court was wrong in passing the decree  in respect  of plaint item No. 1 on the basis of the  admission of  the  2nd  defendant  in  her  written  statement.    The plaintiff did not at  any  stage  accept  the 922 agreement  pleaded by the defendant as true.  The  agreement pleaded  by the plaintiff in his plaint and that pleaded  by the  defendant  in her written statement  were  two  totally different  agreements.  The plaintiff did  not plead at  any stage  that  he  was  ready  and  willing  to.  perform  the agreement pleaded in the written statement of defendant.   A suit  for  specific  performance  has  to  conform  to   the requirements  prescribed  in  Forms 47 and  48  of  the  1st Schedule  in the Civil Procedure Code.  Before a decree  for specific  performance  can be given the  plaintiff  has  to. plead and satisfy the court about his willingness to perform his part of the contract. [925 G926 B]     Pt. Prem Raj v. The D.L.F. Housing and Construction  (P) Ltd. & Anr., [1968] 3 S.C.R. 648, applied.     Srinivas  Ram  Kumar v. Mahabir Prasad  &  Ors.,  [1951] S.C.R. 277, distinguished.     (iii)  Since the parties had not laid the  true  version before  the   court and the defendant had refiled  from  the offer made by her in her written statement it was a case  in which it was appropriate to direct the parties to bear their own costs throughout. [926 H]

JUDGMENT:     CIVIL  APPELLATE JURISDICTION:  Civil Appeals Nos.  1782 and 1783 of 1966.     Appeals  from the judgment and decree dated  October  6, 1964,  of  the Kerala High Court in Appeal Suit No.  569  of 1963.     O.P.  Malhotra and J.B. Dadachanji,  for  the  appellant (in C.A. No. 1782 of 1966) and the respondents (in C.A.  No. 1783 of 1966). M.C. Chagla and A.G. Pudissery,. for the respondents  (in C.A. No. 1782 of 1966) and the appellants (in C.A. No.  1783 of 1966). The Judgment of the Court was delivered by     Hegde, J.  These connected appeals by certificate  arise from  the  decision of the. High Court of Kerala  in  Appeal Suit No. 569 of 1963 on its file.  Civil Appeal No. 1782  of 1966 is filed by the plaintiff in the suit and Civil  Appeal No. 1783 of 1966 is filed by the second defendant (who shall hereinafter  be  referred  to  as  the  defendant),  who  is contesting this appeal.     The suit was for specific performance on the basis of an oral agreement alleged to have been entered into on 9.9.1121 (Malayalain   Era.)  between  the  plaintiff  and  the   1st defendant  who died very soon after the filing of the  suit. The  suit was contested by the second defendant, his  widow. The trial court decreed the suit as prayed for but in appeal the  High Court did not accept the agreement pleaded by  the plaintiff but still granted a decree directing the defendant to execute a sate deed in favour of the plaintiff in respect

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of  item  No. 1 of the plaint schedule properties  less  one acre of paddy field at its east for a sum of Rs. 11500/-. 923     Originally  the  plaintiff  was the owner  of  the  suit properties.  He  sold  the  same to  the  1st  defendant  on 9.9.1121  (Malayalam Era) under Exh. P-1.  According to  the plaintiff at the time of the execution of P-1, there was  an oral agreement between him and the 1st defendant  whereunder the 1st defendant agreed to reconvey the properties sold for the  very  price it was sold whenever  the  plaintiff  calls up.on  him  to  reconvey them.  The suit  from  which  these appeals  arise  has been rounded on the basis  of  the  said agreement.  The 1st defendant died even before he could file his written statement in the case.  Before his death he  had gifted the suit properties by means of a registered deed  in favour  of the defendant.  She denied the agreement  pleaded in  the  plaint but on the other hand she stated  that  just before his death her husband had agreed to sell to plaintiff item No. 1 of the suit property less one acre of paddy field for a sum of Rs. 11500 but due to the illness of her husband the  sale in question could not be effected.  She  proceeded further  and  averred  as follows in  paragraph  10  of  her written statement.                     "This defendant has been asked by the  1               st defendant before his death that even  after               his death the properties in item No. 1 (in the               plaint  schedule which are the subject  matter               of the contract) as mentioned in paragraph  7,               except the nilam on the eastern part  thereof,               should  be  assigned to the  plaintiff  for  a               consideration  of  Rs. 11500  and  accordingly               this   defendant  is  willing  to  give   such               property as mentioned above to the plaintiff." After  the  defendant  filed  her  written  statement,   the plaintiff  did not amend his plaint and pray for any  relief on  the basis of the agreement pleaded by the defendant  nor did  he  inform the court that he was ready and  willing  to accept the agreement pleaded by the defendant or that he was willing  to  perform his part of that agreement.   The  suit proceeded  on  the  basis of the agreement  pleaded  in  the plaint.     The 1st question that arises for decision is whether the agreement  pleaded  in the plaint is true.   The  burden  of proving  that agreement is naturally on the plaintiff.   The agreement in question as mentioned earlier is said to be  an oral  agreement.  Therefore the plaintiff’s task is all  the more  difficult.   The sale deed Exh. P. 1 proceeds  on  the basis that it evidences an outright sale. It does not either specifically or by implication lend support to the case  put forward by the plaintiff.  On the other hand it records  the following condition stipulated by the vendor:                     "Subject to the stipulation that  during               my life time the schedule properties shall not               be  mortgaged  or  assigned  to  anyone   else               without my knowledge and consent, I completely               convey ’and surrender to you all my               924               remaining  rights  and  possession,  and   the               properties  are  given to your  possession  on               receipt  of  the  sale  consideration  of  Rs.               24,500." From this clause it is clear that the plaintiff conveyed all his rights, title and interest in the suit properties to the vendee subject to the aforementioned stipulation.  It is not necessary to consider whether the restriction in question is

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a  valid one.  Even if we assume that the same is valid,  it does  not support the plaintiff’s case.  On the other  hand, by  implication  it negatives his case. At best  the  clause referred  to above merely confers on the vendor a  right  to preempt.  Hence by implication it negatives the  plaintiff’s case  that  there  was an agreement  to  reconvey  the  suit properties.   The plaintiff has not given  any  satisfactory explanation  why the contract relating to  reconveyance  was not  incorporated  in  the  sale  deed.   To  explain   this important omission he has examined P.W.2, who. claims to  be a  document  writer of considerable experience.   He  claims that  the  document in question was written by  one  of  his assistants.   His evidence is to the effect that the  vendor and  the  vendee  wanted to  incorporate  the  agreement  as regards re-conveyance in Exh. P.1 itself but he advised them that it could not be done.  This is a strange legal  advice. This evidence is on the. face of it unbelievable.  There  is also  no satisfactory explanation why the alleged  agreement was not reduced into. writing.     In  support of the alleged agreement reliance was  tried to  be  placed on Exh. P-2, which is said to be  a  document signed  by  the first defendant after the present  suit  was filed  and before his death.  The High Court was  unable  to accept  the  genuineness of this document.  It  opined  that this  document must have been got up by the  plaintiff  with the assistance of P.W. 7, his brother. From the High Court’s judgment  we find that though the document  contains  hardly few  lines,  for  completing  the  same  as  many  as  three different  types  o.f  ink  had  been  used.   The  original document  has not been called for and therefore we  have  to proceed on the basis that the. observations made by the High Court  are correct.  The very recitals in the document  show that it is a suspicious document.  For all these reasons  we are unable. to place any reliance on this document.  It  may be  again  emphasized at this stage that this  document  has come  into  existence after the institution of  the  present suit.     The  principal witnesses who are examined in support  of the oral agreement pleaded in the case are P.Ws.1, 2 and  7. We  have  already  referred to the evidence of P.W.  2.   He does  not appear to us to be a reliable witness.  P.W. 1  is no other than the plaintiff himself.  P.W. 7 is his brother. P.W.  1  has  no children and P.W. 7 is  his  nearest  heir. Therefore  it  is  quite 925 clear  that  both P.Ws. 1 and 7  are  interested  witnesses. Their evidence cannot carry much weight.     The story put forward by the plaintiff in the plaint  is an im probable one.  ItI is true that the plaintiff and  the 1st defendant are first cousins.  It is also true that their relationship  was  very cordial.  But if the  1st  defendant could not trust the plaintiff to advance a sum of Rs. 24,000 without  security as could be gathered from the  plaintiff’s evidence,  we fail to see why the 1st defendant should  have relied on the oral assurances given by the plaintiff in  the matter of reconveying the property.  From the averments made by  the  defendant in her written statement it  does  appear that  when  the  1st defendant was in his  death  bed  being stricken by cancer, there was some talk about reconveying  a portion  of  the suit properties to the plaintiff.   It  may also  be as held by the trial court that the  suit  property was worth more than Rs. 24,000 at the time of its sale.     It  appears  likely that neither side has  come  forward with  the  true  version.  But before a court  can  grant  a decree  for specific performance, the contract pleaded  must

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be  a  specific  one and the same  must  be  established  by convincing   evidence.   Rarely  a   decree   for   specific performance  is  granted  on  the  basis  of  an   agreement supported solely by oral evidence.  That apart, as mentioned earlier, in this case the oral testimony adduced in  support of the agreement pleaded is a highly interested one.  We  do not  think that the trial court was justified in relying  on that  testimony  for granting the decree  prayed  for.   The trial  court itself observed in the course of  its  judgment (para  12) that "there is no clear cut evidence for  proving the terms of the oral contract which is alleged to have been entered  into by the plaintiff and the 1st defendant".  This finding  alone should have been sufficient to  non-suit  the plaintiff.   Therefore we agree with the High Court,  though for  reasons  other  than those mentioned  by  it  that  the plaintiff  has failed to prove the agreement pleaded in  the plaint.     This takes us to the decree passed by the High Court  in respect  of plaint item No. 1.  This decree is purported  to have  been passed on the basis of the admission made by  the defendant.   It may be noted that the agreement  pleaded  by the  defendant is wholly different from that pleaded by  the plaintiff.  They do not refer to the same transaction.  The. plaintiff did not at any stage accept the agreement  pleaded by  the  defendant  as true. The agreement  pleaded  by  the plaintiff  is said to have been entered into at the time  of the execution of Exh. P-1 whereas the agreement put  forward by the defendant is one that is said to have been arrived at just  before  the filing of the suit.  The two  are  totally different agreements.  The plaintiff did not plead either in the plaint or at any subsequent stage that he was ready  and willing  to  perform the agreement pleaded  in  the  written statement of defendant.  A 926 suit  for  specific  performance  has  to  conform  to   the requirements  prescribed  in  Forms 47 and  48  of  the  1st Schedule  in  the  Civil  Procedure Code.   In  a  suit  for specific  performance it is incumbent on the  plaintiff  not only to set out the agreement on the basis of which he  sues in all its details, he must go further and plead that he has applied  to  the  defendant  specifically  to  perform   the agreement pleaded by him but the defendant has not done  so. He  must further plead that he has been and is  still  ready and  willing  to  specifically  perform  his.  part  of  the agreement.   Neither  in the plaint nor  at  any  subsequent stage  of the suit the plaintiff has taken thos  pleas.   As observed  by  this  Court in Pt. Prem  Raj  v.   The  D.L.F. Housing and Construction (Private) Ltd. and anr.(1) that  it is well settled that in a suit for specific performance  the plaintiff  should  allege that he is ready  and  willing  to perform his part of the contract and in the absence of  such an allegation the suit is not maintainable.     The High Court purported to rely on the decision of this Court  in Srinivas Ram Kumar v. Mahabir Prasad and ors.  (2) in support of the decree passed by it.  We do not think that the  ratio  of that decision is applicable to the  facts  of this  case.   Therein  the  plaintiff  brought  a  suit  for specific  performance  of  an  agreement  to  sell  a  house alleging  that he had paid Rs. 30,000 towards the price  and had  been  put into possession in part  performance  of  the contract but the  defendant  pleaded that the amount  of Rs. 30,000 was received as a loan and the plaintiff was put into possession only to facilitate the payment of interest.  This Court  accepted the plea of the defendant and negatived  the claim  of the plaintiff and refused to decree  the  specific

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performance prayed for by the plaintiff but at the same time this Court thought that on the peculiar facts of that  case, it  was  appropriate  to grant a decree  in  favour  of  the plaintiff  for Rs. 30,000 which admittedly remained  unpaid. As seen earlier before a decree for specific performance can be  given the plaintiff has to plead and satisfy  the  court about  his willingness to perform his part of the  contract. Hence  in our opinion the decision in Srinivas  Ram  Kumar’s case (2) does not bear on the facts of the present case.     For the reasons mentioned above we dismiss Civil  Appeal No.  1782 of 1966 and allow Civil Appeal No. 1783  of  1966. In the result the suit from which these appeals arise stands dismissed.     Now  coming to the question of costs, on the  facts  and circumstances  of  this case we think it is  appropriate  to direct the parties to bear their own costs throughout.   Our reasons for doing so are these:  It is proved that the  suit properties  were  sold to the 1st defendant at  a  very  low price.  There must have been some good (1) [1968] 3 S.C.R. 648.    (2) [1951] S C.R. 277. 927 reason for doing so but the parties have not chosen to place the  true version before the Court.  It is also proved  that the  1st defendant before his death was willing to resell  a portion of the suit properties.  He had directed his wife to resell  the   major  portion of item No.  1  of  the  plaint schedule to the plaintiff for a consideration of Rs.  11,500 though its price at that time is proved to be much more than Rs.  11,500. As seen earlier, the defendant was  willing  to sell  item No. 1 in the plaint  schedule  to  the  plaintiff for Rs. 11,500.  She expressed her readiness to do so in her written statement.  She is evidently not willing to stand by that  offer  now because of the enormous rise  of  price  of properties  in  recent  times.   Mr.  M.C.  Chagla,  learned Counsel for the defendant told us at the time of the hearing that the property concerned in the defendant’s appeal is now worth   over   a  lac  of’ rupees.  That appears to  be  the reason why the defendant is backing out of the offer made by her in her written statement.  All that one need say is that all is not well with defendant’s ease either. G.C.                    Civil Appeal 1782/66 dismissed..                          Civil Appeal 1783/66 allowed. 928