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PETITIONER: S.V.R. MUDALIAR (DEAD) BY LRS. & ORS.

       Vs.

RESPONDENT: MRS. RAJABU F. BUHARI (DEAD) BY LRS. & ORS.

DATE OF JUDGMENT17/04/1995

BENCH: HANSARIA B.L. (J) BENCH: HANSARIA B.L. (J) RAMASWAMY, K. MANOHAR SUJATA V. (J)

CITATION:  1995 AIR 1607            1995 SCC  (4)  15  JT 1995 (3)   614        1995 SCALE  (2)720

ACT:

HEADNOTE:

JUDGMENT: HANSARIA, J. 1.  This litigation is about three and half decades  old  by now   inasmuch  the  suit  for  specific   performance   for reconveyance 618 of the property sold by the plaintiff was filed in 1962.  It was decreed by the trial court (a single Judge of the Madras High Court) on 10.11.65. The letters Patent Bench,  however, on appeal being preferred, set aside the decree on  10.5.72. Hence this appeal by special leave by the plaintiff.  As the plaintiff  died  in  1990, his  legal  representatives  have pursued  the appeal.  It may also be stated that during  the pendency of this appeal the appellants assigned their  right to  two  outsiders sometime in September,  1988.   We  would have,  therefore, to see, in case we were to agree with  the plaintiff  regarding  there  having  been  a  contract   for reconveyance,  which is the real bone of contention  between the parties, whether in view of the aforesaid assignment,  a decree  for specific relief is still called for, keeping  in view the fact that such a relief is discretionary. 2.   We  may  note  relevant  facts.   These  are  that  the original  plaintiff, SV Ramakrishna Mudaliar, was a  man  of means at one point of time, to run into rough weather, which required mortgage of some of his properties.  It is to repay the  mortgage  debt  that  the plaintiff  sold  two  of  his properties  ostensibly to Mrs. Rajabu Fathima  Buhari  (Mrs. Buhari)  described in Schedules ’A’ and ’B’ of  the  plaint. The sale deeds in respect of these properties were  executed on  26.3.59  (Ex.P  2)  and  31.3.59  (Ex.P.3);  both  were, however,  registered on 31.3.1959. The plaintiff’s  case  is that  before  these  properties had been sold  there  was  a ’gentleman’s  understanding’  between him  and  Mr.  Buhari, husband of Mrs Buhari, on 24.3.59 that in case the  purchase amounts  as  per  the sale deeds were  repaid  within  three

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years, the properties would be reconveyed, when in  addition to sale price, 10% thereof shall be paid as solatium of  the actual   amount   spent  on  improvement,  if   any.    This understanding  was  put in writing  subsequently  under  the title  "Record  of  fact", which was  exhibited  during  the course  of the trial as Ex.P1. Plaintiff’s another case  was that though the sale deeds were in the name of Mrs.  Buhari, the  real purchaser was Mr. Buhari.  To put it  differently, Mrs.  Buhari  was  only  an  ostensible  owner.   The  third important  facet of the plaintiff’s case was that Ex.P1  had been signed by one Kamal as an agent of the couple, who were impleaded  as defendants in the suit.  As, however,  of  the two properties sold, only one, styled as ’Serles Garden’ was reconveyed  in May, 1960, the suit was filed for  seeking  a decree   for  the  reconveyance  of  the  second   property, described in Schedule ’A’ to the plaint. 3.   As  already  noted the trial court  decreed  the  suit, which  decree came to be reversed in appeal by  the  Letters Patent Bench.  The following questions are to be answered to dispose of the appeal:- (1)Whether   Ex.P1  is  a  genuine  document.   This   needs determination  because the Letters Patent Bench has  allowed the appeal of the defendants principally on the ground  that this document is a result of fabrication. (2)If  the aforesaid document be genuine, whether Kamal  who is  said  to have signed the same was an agent  of  the  de- fendants. (3)Whether  the understanding given by Mr. Buhari, could  be enforced  against  Mrs.  Buhari.  This  would  also  require determination of the question whether Mrs. Buhari was a name lender. 619 (4)In  case  the factual basis of the  plaintiff’s  case  be correct,  the legal question to be decided would be  whether in   the   facts  and  circumstances  of  the   case,   more particularly the assignment of the right by the  successors- in-interest  of  the plaintiff in favour of  third  persons, granting  of  the relief of specific performance  is  called for,  which  the statute has left to the discretion  of  the Court. GENUINENESS OF EX.P1 4.   The  Letters  Patent Bench of the High  Court  regarded Ex.P1 not as a genuine document mainly because Exs.P.2 and 3 do  not contain a stipulation regarding the reconveyance  of the  properties sold by the plaintiff.  Not only this,  even Ex.P.  15,  by  which Selers Garden  was  resold,  does  not mention  about  the same having been done  pursuant  to  any contract  of  reconveyance.  This apart, as  in  support  of proof  of Ex.  P. 1, the plaintiff had examined, apart  from himself,  his agent Narayana lyer, the appellate  court  did not  fell satisfied about there being credible  evidence  in this regard.  It may be mentioned that when the trial began, another signatory to P.1, Shri VS Rangachari, who had played prominent part throughout, having died was not available for examination.   The  only  other  signatory  to  Ex.P.  1  is aforesaid  Kamal,  who could not be examined  by  the  trial Judge even as a Court witness. 5.   Shri  Vaidyanathan, learned counsel  representing  Mrs. Buhari, has, apart from mentioning about silence of Exs.P.2, 3  and 15 relating to any agreement of  reconveyance,  urged that the evidence adduced in the case by the plaintiff would itself  show that P. 1 had not seen the light of the day  on 24.3.59.  The  basic submission in this regard is  that  his document  was described by PW 1 Narayana in his evidence  as ’letter’.   We  do  not think if we  should  go  by  labels,

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because  even if it was a letter which came  into  existence that shows that something in writing had been put on record; and  it  may  because of this that P.  1  was  described  as ’record of fact’ and it being on a letterhead of the  plain- tiff, might have loosely described as "letter" of PW 1. 6.   As to why in Exs.P.2,3 and 15 no mention was made about P.1, has been sufficiently explained by PW2 (the  plaintiff) in  his evidence, whose purport is that Shri Rangachari  who had  played a vital role in the entire episode, had  advised accordingly.  The evidence clearly shows that Rangachari was a  legal advisor both to the plaintiff and Mr.  Buhari.   On PW2 being specifically asked as to why Exs.P2 and P3 did not contain the recital about reconveyance, his answer was:               " I wanted it to be included in the sale deed.               Rangachari told that the gentleman’s agreement               is  binding  on  Mr. Buhari  to  reconvey  the               property  and so need not be included  in  the               sale deed". 7.   Shri  Salve, appearing for Mr. Buhari, puts his  weight (and  he  has  enough  of it) to  the  submissions  of  Shri Vaidyanathan and asks why is it that P. 1 was not signed  by Buhari;  and  why is it that the plaintiff himself  did  not sign the same?  The queries do not stop here as, the fulcrum senior  lawyer  asks why was the sale not in the  nature  of conditional sale?  When first two questions were put to  the plaintiff  his short, simple and unsophisticated answer  was that the confidence-inspiring advocate Rangachari had stated that  signing by the two agents in the presence of  the  two principals would meet the requirement of law.  And it  does, as  acts done by agents within the permitted field  do  bind the  principals.   The first two questions  raised  by  Shri Salve may be answered also by pointing out that we have seen lesser  mortals  signing  big  inter-country  agreements  in presence  of  higher-ups.   The  third  poser  is  no  doubt pertinent,  but  as there are many ways of getting  a  thing done,  all  concerned  might have thought  that  instead  of making  the sales conditional, for reasons not quite  known, the  situation demanded that the arrangement of   the   type gone into was better suited.  All   important  question   is whether  parties were ad idem; if so, how did  they  express their  meeting  of  mind  is not  material.   And  on  their agreeing as recorded in P. 1, we are in no doubt. 8.   The  case  of  the plaintiff in  this  regard  receives support  from P.28 which is a letter from the  plaintiff  to Mr.  Buhari, dated 1st Feb. 1961, which mentions  about  the understanding in question.  Though the Division Bench of the High  Court  has  held  that  Ex.P.28  is  also   fabricated document, we find ourselves unable to agree with it on  this point.   There  is some force in the case of  the  plaintiff that  the defendants challenged about the  understanding  in question after the death of Rangachari. 9.   According to us, therefore, it would not     be correct to doubt the existence of P.  1  because  of  non-mentioning about any stipulation to reconvey in Exs.  P2 and 3 and  for that matter for Ex.P. 15 having not mentioned about it-  nor do the questions raised by Shri Salve take away the ring  of ,truth,  the  plaintiff’s case has in this regard.   So,  we hold that P. 1 is a genuine document, as opined by the trial Judge. WHETHER KAMAL WAS AN AGENT OF THE DEFENDANTS 10.We  come to the role played by Kamal.  According  to  the plaintiff  full  name of Kamal who had signed Ex.P1  is  MH. Kamal,  son of MS Mohammed Hasan, who at the  relevant  time was residing at Nos.5/ and 58, 3rd Main Road, Gandhi  Nagar. As  per  the  second defendant, who alone  appeared  in  the

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witness  box, there were many Kamals in his  employment  and the signature appearing in P. 1 is not MH Kamal, who at some point of time was in employment of the defendants. 11.The trial Judge has dealt with this aspect in detail  and to find out the truth as to whether ME Kamal has signed  PI, he  even  wanted to examine this Kamal as a  court  witness; but, according to him, Kamal was kept out by the defendants, because  of  which  some adverse inference  has  been  drawn against them by him. 12.Mr.   Parasaran,  appearing  for  the  appellants,  fully supports the finding of the trial Judge in this regard  and, according  to  him, law permits an adverse inference  to  be drawn,  where  a  party  in  possession  of  best   evidence withholds the same, even if the onus of proving the fact  in question were not to be on him.  To support him on the legal submission, the learned counsel has relied on a  three-Judge Bench decision of this Court in Gopalakrishnaji v.  Mohammed Hazi Latiff, AIR 1968 SC 1413.     In  that case this  Court while stating as    above observed that a party cannot  rely on abstract doctrine of onus. 13.  According  to the learned counsel for the  respondents, the case of the defendants on this score finds support  from none 621 other  than aforesaid Kamal, if what has been stated by  him in  his affidavit filed before this Court is borne in  mind. That affidavit is a part of IA No.2, in which the prayer  Is to  direct  examination  of MH Kamal as  a  witness  in  the appeal.   Shri Salve has drawn our attention to the  account of  salary  and  batta paid to Kamal, as  mentioned  in  the enclosure to the affidavit, according to which, for the year 31.3.63 batta paid was Rs. 124 and salary was Rs. 525.   The learned  counsel brings to our notice that in earlier  years the  batta had ranged about four times more and  the  salary more  than that, which would go to show that  after  31.3.62 Kamal  was  in the service not upto 31.3.63, but for  a  few months  after  31.3.62, as in the case  of  the  defendants. There seems to be some force in this contention. 14.  We,  therefore, do not propose to decide this  fact  by drawing  any adverse inference against the  respondent-  but would do so on the basis of evidence led by the plaintiff As already stated, this evidence has received better  treatment at  the hand of trial Judge, who, while holding  that  Kamal had  acted as an agent of the defendants, referred  to  many circumstances  also.   Shri  Parasaran  has  submitted  that though  the  appellate court is within its right to  take  a different  view on a question of fact, that should  be  done after  adverting to the reasons given by the trial Judge  in arriving  at the finding in question.  Indeed, according  to Shri Parasaran an appellate court should interfere with  the Judgment under appeal not because it is not right, but  when it is shown to be wrong, as observed by three-Judge Bench of this Court in Dollar Co. v. Collector of Madras, 1975  Supp. SCR  403.   As to this observation, the contention  of  Shri Vaidyanathan  is that what was stated therein was  meant  to apply  when this Court examines a matter under Article  136. We do not, however, think if this meaning can be ascribed to what was observed. 15.There  is  no need to pursue the legal principle,  as  we have no doubt in our mind that before reversing a finding of fact,  the appellate court has to bear in mind  the  reasons ascribed  by  the  trial court.  This  view  of  ours  finds support  from what was stated by the Privy Council  in  Rani Hemant  Kumari  v. Maharaja Jagadhindra Nath,  10  CWN  630, wherein, while regarding the appellate judgment of the  High

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Court  of Judicature at Fort William as "careful and  able", it  was stated that it did not "come to close quarters  with the judgment which it reviews, and indeed never discusses or even alludes to the reasoning of the Subordinate Judge." 16.Shri  Salve has taken pains to satisfy us that it is  not quite correct to submit that the Division Bench did not take note  of circumstantial evidence noted by the  trial  Judge. To satisfy us in this regard, our attention has been invited to what was stated by the Bench at page 291 of Vol. 11.   As perusal  of this part of the appellate judgment  shows  that two   circumstances  mentioned  by  the  trial  Judge   were traverssed,  but  all were not.  This apart,  first  circum- stance  was  not  regarded  as  connecting  Kamal  with  the defendants  mainly  because the Bench was not  satisfied  if Kamal who had taken part in the documents marked as Ex.  P9, 10,  64 and 65, and the Kamal referred in PI are  the  same. We  do not, however, think that this view is  sound  because though  the  defendants  might  have  had  many  Kamals   as employees but they had only one employee, named MH.  Kamal, 622 son  of Mohammad Hasan, and it is this Kamal who had  signed Ex.P. 1. As to the second circumstance relatable to issuance of  Ex.P.28, we have already observed that we do  not  agree with the view of the Division Bench qua this. WHETHER MRS.  BUHARI WAS A BENAMIDAR OF MR.  BUHARI 17.The  trial Judge has answered this question in favour  of the  plaintiff-, the Division Bench has observed that it  is not  necessary to advert to this aspect of the case  of  the plaintiff.   We also propose to traverse the path  taken  by the  appellate court and resist from giving our  finding  on this  aspect of the case.  We have taken this stand  because we  are satisfied about the genuineness of Ex.P. 1; so  also about Kamal who had signed the same as being an agent of the defendants,  because of which the understanding recorded  in Ex.P.  1  has to be regarded as binding on  the  defendants. For  the sake of completeness, we may also observe that  the understanding  having had consent of Mr. Buhari,  and  there being evidence a-galore about Mr. Buhari acting as an  agent of  Mrs.  Buhari,  there  is  nothing  to  doubt  that   the understanding  given  by Mr. Buhari has to  be  regarded  as bindIng  on  Mrs. Buhari.  The leading role  played  by  Mr. Buhari  in the entire episode is writ large and there is  no escape  from the conclusion that the consent of  Mr.  Buhari has to be regarded as a consent given by Mrs. Buhari. 18.We,   therefore,  conclude  that  there  did   exist   an understanding to reconvey two properties as recorded in  the document  executed  on  24.3.59.  This  conclusion  of  ours receives support from reconveyance of ’Serles Garden’ within the  period of 3 years as stipulated in Ex.P.1 and that  too at  the  added solatium of 10%.  Ibis property  having  been sold at Rs.85,000, 10% of the same comes of Rs. 8,500/-  and Ex.P.  1  5 evidences the sale at Rs. 95,000/-Though  it  is correct  that  Rs.85,000/-  and 10% of  that  comes  to  Rs. 93,500/-,  it may as well be at this figure was  rounded  to Rs.95,000/  In this context Shri Vaidyanathan’s  submission, however, is that ’Serles Garden’ was sold back, not pursuant to the agreement to reconvey, but because Mrs. Buhari  could not  get a lessee despite advertisement having been  put  in ’The Hindu’ and ’The Mail’, as evidenced by Exs.  D 1 to D4. Though  this  contention  has some  cutting  edge,  we  were inclined  to  think,  on the totality  of  facts,  that  the transfer  of  Serles  Garden back to the  plaintiff  was  in discharge of the legal obligation contained in P. 1, as both the  period during which it was transferred and for the  sum it was so done, fit in well with the terms embodied in P. 1.

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IS A CASE FOR SPECIFIC PERFORMANCE MADE OUT IN LAW? 19.Being  satisfied that the parties had agreed as  recorded in  Ex.P  1,  the question to be  examined  is  whether  the agreement  of the type at hand, described as  "  gentlemen’s understanding" in Ex.P.1, permitted the plaintiff to seek  a decree  for  specific  performance.   According  to  learned counsel  for the respondents, the agreement has  created  no legal  obligation and as such is not agreement, even if  en- forceable, can be so done only against the executable of the original contract.  The final submission is that the  remedy of  specific performance being discretionary, the  same  may not  be  granted at this length of time; more so,  when  the appellants have 623 assigned their interest to some outsiders. 20.  So  far as the first submission is concerned, we  agree that  it  is a valid and enforceable contract which  is  the basis for the jurisdiction to order specific performance, as pointed out in Mayawanti v. Kaushalya Devi, 1990 (3) SCC  1. The  point  for determination is whether  the  agreement  as recorded in Ex.P1 is enforceable.  It has been contended  on behalf  the respondents that while agreeing as  embodied  in the  document  the parties had no intention  to  create  any legal  interest,  because of which the agreement  cannot  be enforced.   Strong reliance has been placed, in  support  of this  submission, on the decision of House of Lords in  Rose and  Frank  Co.  v.J.R. Crompton &  Bros.   Ltd.,  1924  All E.L.R.(Reprint)  245.  In that case, after noting  what  had been agreed upon, the House of Lords came to the  conclusion that  the parties had not intended that the document  should be legally enforceable. 21.  As  the aforesaid decision was arrived at on the  basis of what was contained in the document, it would be pertinent to note the clause in question, which read as below:               "This arrangement is not entered into, nor  is               this memorandum written, as a formal or  legal               agreement,  and shall not be subject to  legal               jurisdiction  in the law courts either of  the               United  States  or England, but it is  only  a               definite expression and record of the  purpose               and intention of the three parties  concerned,               to   which   they   each   honourably   pledge               themselves with the fullest confidence   based               on  past  business with each  other   that  it               would be carried through by each of the  three               parties  with mutual loyalty and friendly  co-               operation.  " 22.  The  decision  being on the facts of  the  case  cannot apply to facts here which a different; and we do think  that what  agreed upon in the present case is much different,  as would appear from Ex.P 1 which reads as below:                       "Record of fact               This  is  to  record  the  gentleman’s  under-               standing  between  Mr.  S.V.R.  and  Mr.  A.M.               Buhari that Mr. Buhari will see to it that  in               case  the  purchase amounts as  per  the  sale               deeds  in  favour  of Mrs.  A.M.B.  Buhari  is               repaid  within  3 years from  this  date,  the               properties  will be reconveyed to Mrs.  S.V.R.               who will also have to pay in addition to  sale               price  10 per cent thereof as solatium of  the               actual amount spent on improvement if any." 23.  The aforesaid shows that though what has been  recorded was  described as "gentlemen’s understanding", according  to us,  the understanding was such which was meant to be  acted

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upon.  We have taken this view because terms and  conditions of reconveyance have been clearly mentioned and document was executed  by the agents of both the sides.  It  was,  there- fore, intended to create legal obligation.  In this context, Shri Parasaran has brought to our notice a decision of  this Court  rendered  in Commissioner of Wealth  Tax,  Bhopal  v. Abdul  Hussain Mulla Mohammad Ali, (dead) by LRs., 1988  (3) SCC  562,  in which after referring to the decision  of  the House  of  Lords  in  the  aforesaid  case  and  some  other decisions,  as  well  as  what  has  been  stated  in  legal treatise,  it was observed in para 24 that  the  proposition that  in addition to the existence of an agreement  and  the presence of consideration, there is also a third element  in the form of intention of parties to create legal 624 relations,  is one which has not passed  unchallenged.   The Bench  observed  that  it  is not  possible  to  accept  the argument that an agreement will not, by itself, yield  legal obligations  unless  it  is  one  which  can  reasonably  be regarded  as  having  been  made  between  the  parties   in contemplation  of  legal consequences.  From  the  averments made  in Ex.P 1 and the legal position being what  has  been noted  in  this case, we are satisfied that  an  enforceable contract  had come into existence on the  parties  executing Ex.Pl. According to us, they were ad idem and the  plaintiff was  within his rights to seek specific performance  of  the same. 24.  On  the second legal question raised, we may not  spend much time because the prop of this submission being what was held  by this Court in Annapoorani Ammal v. G.  Thangapalam, 1989  (3) SCC 287, whose facts were entirely different,  the ratio  of  that  decision cannot be called  in  aid  by  the respondents.   In that case the mother of the appellant  who had allegedly executed the ’yadast’ was not the owner of the property because of which it was held that the suit  against the appellant filed for reconveyance of the property on  the basis of ’yadast’ could not have been decreed.  In our  case Ex.P  1  had  been  executed by Kamal as  an  agent  of  the defendants and what had been agreed upon by him has to  bind the principals. 25.  We now come to the main legal submission, which is that the  relief of specific performance being discretionary,  we may  not  grant the same for two reasons in  the  main:  (1) lapse  of  about 33 years after filing of  the  suit  during which  period price of the property has gone up  enormously; and   (2)  the  plaintiff’s  legal  representatives   having assigned  their right of repurchase. the assignees  are  the real person interested in getting back the property, and  we may  not allow the same, as what they had purchased was  not the property as such, but litigation, which could be said to be akin to champerty. 26.Shri  Parasaran  contends  that the  relief  of  specific performance  is said to be discretionary only in  the  sense that  the court may not act arbitrarily and  nothing  beyond this,   and   while  exercising  the   discretion   judicial conscience and judicial statesmanship alone are the  guiding facts.  That this is the legal position is sought to be sus- tained by referring to sub-section (1) of section 20 of  the Specific Relief Act, 1963, in which, it has been stated that the  jurisdiction  to  decree the  specific  performance  is discretionary,  but the discretion is not arbitrary;  it  is sound  and  reasonable  and  is to  be  guided  by  judicial principles.   As to when the court may not exercise  discre- tion  to grant the decree for specific performance has  been mentioned in sub-section (2); whereas subsection (3)  states

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as to when the court may properly exercise its discretion to decree specific performance.  No doubt what has been  stated in  these  two  sub-sections  is  not  exhaustive,  but   is illustrative, yet the intention of the legislature has  been well  reflected, both as regards the granting of the  relief and  nongranting of the same.  Clause(c) of  subsection  (2) states  that if granting of specific performance would  make it  "inequitable", the court may not grant the relief It  is this  part of the statutory provision which is sought to  be relied  by  the  learned  counsel  for  the  respondents  by contending  that it would be inequitable to  grant  specific performance for the aforesaid two reasons. 625 27.In  so far as the delay in the disposal of the  case  and the rise in prices during interregnum, Shri Parasaran  urges that the delay not having been occasioned by any act of  the plaintiff,  he  may  not be punished for  the  same  on  the principle of ’ actus curiae neminem gravabit"  an act of the court  shall  prejudice  no man.  As  regards  the  rise  in prices,, the submission is that it should not weigh with the court in refusing the relief if otherwise due, as opined  in S.  V.  Sankaralinga Nagar v. P.I.S. Ratnaswami  Nadar,  AIR 1992  Madras 389, which decision was cited with approval  in Mr. Abdul Hakeem Khan v. Abdul Menon Khadri, AIR 1972 Andhra Pradesh 178.  We are in agreement with this view because  of the  normal trend of price in prices of  properties  situate especially  in  metropolitan  city like  Madras,  where  the property  in  question is situate.  If  merely  because  the prices have risen during the pendency of litigation, we were to deny the relief of specific performance if otherwise due, this relief could hardly be granted in any case, because  by the  time the litigation comes to an end  sufficiently  long period  is  likely  to elapse in most of  the  cases.   This factor,  therefore,  should not normally weigh  against  the suitor in exercise of discretion by a court in a case of the present nature. 28.The final onslaught is on the ground that the  plaintiffs successors-in-interest  having assigned the right  to  third parties in the meantime, we may not grant the relief because the  assignees have, as already noted, purchased  litigation and  so the transaction could be described  as  champertous. Shri  Parasaran,  however,  contends  that  all  assignments pendente  lite cannot be regarded as champertous;  the  same would  depend on the facts of each case.  It is  also  urged that  an  assignee  has  the  right  to  pray  for  specific performance  because  he is one who has to  be  regarded  as "representative-in-interest", of which mention has been made in  clause  (b) of section 15 of the aforesaid  Act  dealing with the persons who may obtain specific performance.   ’Mat an  assignee  would be such a person was  accepted  by  this Court in T.M. Balakrishna Mudaliar v. M. Satyanarayana  Rao, 1993 (2) SCC 740. 29.We are of the view that if in a case the act of the third party  could be regarded akin to champertous, the relief  of specific  performance  may  be refused;  indeed,  should  be refused.   In  the present case, however, we find  that  the assignees  themselves applied to this Court  for  impleading them   as  appellants  and  put  on  record  the  deeds   of assignment,  a  perusal  of which shows that  the  need  for assignment  was It for pressing reasons.  There has been  no hide an seek with the court and the legal representatives of the original plaintiff having received a sum of about Rs. 13 lacs pursuant to the contract of assignments entered between September to November ’1988, we do not think if we would  be justified in refusing the relief of specific performance, if

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the conduct of the respondents is also borne in mind,  about which  one  could say that the same is tainted  inasmuch  as they  departed from truth to bolster their case and went  to the  extent  of not complying with the desire of  the  trial judge  in allowing aforesaid Kamal to be examined even as  a court witness.  Such parties who pay foul with equity cannot be allowed to use the shield of equity to protect them. 30.The result of the foregoing discussions is that we  allow the appeal, set aside 626 the  impugned  judgment  of the  Letters  Patent  Bench  and restore  that  of the trial Judge and decree  the  suit  for specific performance.  The respondents or their  successors- in-  interest  would  reconvey  the  property  mentioned  in Schedule  ’A’  of  the plaint within a period  of  1  month, failing which it would be open to the trial Judge to execute the required document(s).  In the facts and circumstances of the  case,  the  parties are left to bear  their  own  costs throughout. [A.  Nos.], 2 & 5 of 1994 31.I.A.  Nos. 1 and 2 are dismissed.  I.A. No.5 is  allowed; the cause title may be amended accordingly.