Holding

Specific performance cannot be granted unless the plaintiff alleges and proves that he is ready and willing to perform his part of the contract as per its true construction, a mandatory requirement under Section 16(c) of the Specific Relief Act, 1963.

Summary

Bal Krishna and another filed a suit for specific performance of a reconveyance agreement concerning a house that had been sold in 1952. The plaintiffs claimed they were ready and willing to pay the consideration and sought a deed of reconveyance, while the defendant (deceased) denied the existence of the reconveyance agreement and alleged fraud. The trial court granted specific performance, but the High Court set aside the decree, holding the plaintiffs had not proved readiness and willingness to perform the contract as required by Section 16(c) of the Specific Relief Act, 1963. On appeal, the Supreme Court affirmed that a plaintiff must allege and prove readiness and willingness to perform the essential terms of the contract, and that this requirement is mandatory. Since the plaintiffs failed to demonstrate such readiness for the consideration of Rs 25,000 stipulated in the reconveyance agreement, the appeal was dismissed and the plaintiffs were ordered to be refunded Rs 5,000 with interest.

Issues considered

The plaintiff must allege and prove readiness and willingness to perform his part of the contract under Section 16(c) of the Specific Relief Act, 1963.
Whether the plaintiffs satisfied the requirement of readiness and willingness for the reconveyance agreement dated 21 July 1952.
Whether specific performance can be granted when the plaintiff fails to meet the statutory requirement despite the contract not being vitiated by fraud.
The discretion of the court under Section 20 of the Specific Relief Act in granting specific performance.

Legislation cited

Specific Relief Act, 1877s. 24
Specific Relief Act, 1963s. 16(c), s. 20

Subjects

Specific performanceSpecific Relief ActSection 16(c)Readiness and willingnessContract reconveyanceEquitable reliefDiscretion under Section 20Consideration

Judgment

[2008] 5 S.C.R. 389

~~
BAL KRISHNA AND ANR. A
V.
•
'
BHAGWAN DAS (DEAD) AND ORS .
(Civil Appeal No. 4033 of 2004)

MARCH 25, 2008
B
[P.P. NAOLEKAR & LOKESHWAR SINGH PANTA, JJ.]

Specific Relief Act, 1963:
s. 16(1 )(c) - In a suit for specific performance of contract
of sale of house, plaintiff must allege and prove that he was c
always ready and willing to perform his part of contract - On
facts, plaintiff entered into agreement for sale of suit house for
Rs. 25000 - Defendant paid Rs. 10, 000 - After two days they
entered into re-conveyance deed - Suit for specific
performance of contract of re-conveyance - Held: The plaintiffs' D
case throughout in the plaint as well as in the evidence was
that they were ready and willing to purchase the suit house for
·the consideration of Rs. 10, 0001- - 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 E
executed in their favour on payment of Rs.25,0001-, no case
is made out by the plaintiffs for specific performance of the
contract of re-conveyance - Specific Relief Act, 1877 - s. 24.
s. 20 - Conduct of parties - It is most relevant factor for
grant of refusal of equitable relief - Relief for specific F
• }- performance lies in discretion of the court - No specific
performance of 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 G
he did not foresee - Equity

f
..., The suit property was HUF property. HUF consisted
of two plaintiffs who were minors and their grandmother.

389 H
390 SUPREME COURT REPORTS [2008] 5 S.C.R.

A They entered into a sale agreement on 19.7 .1952 for sale ,._ "'
of suit property for Rs.25000 and gave possession except
for one room. The defendant paid Rs.10,000. Two days
later on 21.7.1952, parties entered into a re-conveyance
deed in which it was stated that plaintiffs would be entitled
B to re-buy the property on payment of original amount
received from defendant with interest and defendant was
to keep accounts of rent received and taxes paid. Towards
the said agreement of reconveyance, the plaintiffs paid
to the defendants Rs.1000 and Rs.4000. Plaintiffs then
0 approached defendant saying that he should take
balance amount and given the accounts of expenses and
rent received by him. Thereafter plaintiffs filed suit for
specific performance of contract to reconvey the suit
property. Plaintiffs averred in the plaint that they were
always ready and willing to perform their part of contract.
0
Defendant died before filing written statement. His y
LRs. denied that sale was only for Rs.10,000. They also
did not admit that any re-conveyance was entered into
between the parties. They contended that plaintiffs got
E signature of defendant on some papers by falsehood mis-
representation. Trial Court decreed the suit holding that
sale in 1952 was for Rs.25000/-; that agreement of re-
conveyance of 21. 7.1952 was for total consideration of
Rs.25000 and agreement dated 21.7.1952 and not one
'F dated 19.7.1952 was enforceable; and that plaintiff had
paid Rs.5000 and he was always willing to perform his
part of contract. Both parties appealed against this which
were dismissed. In LPA, case was remanded to Single
Judge for redecision. On remand, High Court held that
G on execution of agreement dated 21.7.1952, the
agreement of 19.7.1952 stood substituted. It was also held
that plaintiffs had not complied with mandatory
requirement of s.16(c) of Specific Relief Act by not stating
that they were always ready and willing to perform their
H part of contract. The only step they took was paying of
BAL KRISHNA AND ANR. v. BHAGWAN DAS (DEAD) 391
AND ORS .
.... ... Rs.1000 in 1953 and Rs.4000 in 1955 and thereafter no A
step was taken showing callous indifference or willful
negligence. T~e decree was set aside and defendant was
asked to refund Rs.5000 to plaintiff with interest. Hence
the present appeal.
Dismissing the appeal, the Court B
~
HELD: 1.1. S.16 of the Specific Relief Act, 1963
corresponds with s.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 c
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
D
perform essential terms of the contract. Explanation (ii)
to clause (c) of s.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 s. 16(c) is mandatory
and in the absence of proof of the same that the plaintiff E
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's readiness and
willingness must be in accordance with. the terms of the F
~ ,.... 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.
[Para 8] [401-G, 402-A, B, C, D] G
1.2 By virtue of s.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
H
392 SUPREME COURT REPORTS (2008] 5 S.C R.

A 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 wculd take into
consideration the circumstances of the case, the conduct
8 of parties, and their respective interests under the
contract. No specific performance of 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
C foresee. [Para 8] [402-D, E, F, G]

, 2.1. The sale deed executed on 19.7.1952 shows that
the consideration for the sale of the house was paid,
Rs.5000/- in cash and Rs.20,000/- by way of cheque. Sale
deed does not show that the amount of Rs.10,000/- was
0
paid in cash. Endorsement on the sale deed shows that
this amount was paid by cash and cheque to the plaintiffs
before the Registrar. 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
E handwritten figure has not been initialled by the defendant
or the plaintiffs. These facts clearly belie the case of the
.plaintiffs that the sale deed was executed for only an
amount of Rs.10,000/- and that agreement of resale was
executed by the defendant for a consideration of
F 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. [Para 1OJ
G [403-G; 404-A, B, C]
2.2. 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' case that as the terms of Ex.Pl
'
H 1 were not complete, the second document was executed
BAL KRISHNA AND ANR. v. BHAGWAN DAS (DEAD) 393
AND ORS.

on 21.7.1952. From a bare reading of the document dated A
21. 7.1952, it does not appear to be so. The document Ex.Pl
2 dateu 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 document
contends that the defendant had purchased the suit i1
house for a consideration of Rs.25,000/- by registered sale
deed; and that the house was sold by the plaintiffs as they
1

were in needrt>f\n'loney. 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. 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 [Para 11J
[404-C, D, E, F, G]
Syed Dastagir v. TR. Gopa/akrishna Setty AIR (1999)
SC 3029; Moti/al Jain v: Ramdasi Devi (Smt.) and Ors. (2000)
6 SCC 420; Umabai and Anr v: Nilkanth Dhondiba Chavan
(Dead) by LRs. and Anr (2005) 6 SCC 243 - referred to.
2.3. When the entire plaint is read, there is no E
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 F
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. In the evidence also, the
plaintiffs have throughout maintained that the agree1nent
394 SUPREME COURT REPORTS [2008] 5 S.C.R.

A of reconveyance was for a sale consideration of )- ....
~.10,000/- only of which Rs.5,000/- has already been paid.
There is no specific statement made by the plaintiffs in
examination-in-chief or in cross-examination that plaintiffs
were ready and willing to pay the entire amount of
B Rs. 25,000/- as consideration amount to the defendant for
rec·onveying the suit house. Theofindtl'T~recorded by the
1-
trial .court that the sale conside.r.ati.Dtl~dft the suit house
was Rs.25,000/- was even chaHengeditbylthe plaintiffs by
filing an appeal before the 'Htg.h20ourt!q[Paras 15, 16]
[406-D, E, F, G; 407-A, B] ~··.

c
2.4. The 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
iii favour of the plaintiffs. That document indicates that
D the consideration for the reconveyance would be
Rs.25,000/-. The plaintiffs' case throughout in the plaint
a$ well as in the evidence was that they were and are ready
r
and willing to purchase the suit house for the t
consideration of Rs.10,000/-. In the absence of pleadings
or proof by the plaintiffs as to their willingness and
E
r~adiness 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. On ..
the above findings, there would be no need to go into the
F 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. [Paras 17,
.. . ~

18] [407-C, D, E, F, G]
G
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
4033 of 2004.
From the final Judgment and Order dated 07.05.2002 of >- -
the High Court of Madhya Pradesh, Bench at Indore in First
H Appeal Nos. 93 & 118of1980.
BAL KRISHNA AND ANR. v. BHAGWAN DAS (DEAD) 395
...
~ ...(
AND ORS. [P.P. NAOLEKAR, J.]

. S.K. Gambhir, D.M. Shali, Anil Sharma and T.N. Singh for A
the Appellants.
A.K. Chitale, Niraj Sharma, Vikrant Singh Sais and Charu
Kapoor for the Respondents.
The Judgment of the Court was delivered by B
P.P. NAOLEKAR, J. 1. By this appeal, the appellants
(plaintiffs in the suit) (hereinafter referred to as "the plaintiffs" 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 1'0.5.1973 for specific performance of the c
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
"the defendant" for the sake of convenience) was dismissed by
the High Court. D

2. The facts necessary are that the suit property was a
joint family property of the plaintiffs, namely, Bal Krishna and
Ramanla1, both brothers and their late grandmother Mainabai.
The parents of the plaintiffs as also their grandfather late
E
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 F
>- 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 G
debts of the joint family of the plaintiffs, their grandmother
Mainabai, for herself and as their guardian entered into an
~-I 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 H
396 SUPREME COURT REPORTS [2008] 5 S.C.R.
'
~ "~
A d~fendant 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
G 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
c 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
D plaintiffs after receiving from them the sum of Rs.10,000/- and
f
in~erest 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
E 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:
F (1) The defendant No.1 will reconvey the house to
Mainabai and the two plaintiffs whenever they shall -'.
call upon him to do so by a notice in writing.
,_
1')) For such reconveyance, Mainabai and the two
"'-' plaintiffs will be liable to pay the defendant No.1 the
real and original amount which the latter 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.

H (3) The amount which the defendant No. 1 shall realize
BAL KRISHNA AND ANR. v. BHAGWAN DAS (DEAD) 397
AND ORS. [P.P. NAOLEKAR, J]
"- --(
by way of rent of the house in question shall after A
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 B
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 c
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 0
the defendant No. 1 when accounts shall be taken
and interest shall be calculated by 'kat-miti'.
It was further pleaded in the plaint that towards the said
agreement of reconveyance, the plaintiffs had paid to the E
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
F

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 G
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 H
3$8 SUPREME COURT REPORTS [2008] 5 S.C.R.

)... ~
A 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
B the balance price of Rs.5,000/- together with interest of
R$.10,000/- by kat-miti and after adjusting towards it the net
rental income realized by him to be ascertained after an account,
toreconvey 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
c was averred that 'the plaintiffs have been and are ready and "-;=

willing to perform their part of the contract according to its true '
.~

copstruction'. As per the plaint, the cause of action accrued on
se1rvice of notice on 9.5.1973 when the defendant failed to
comply with the plaintiffs' notice dated 7.5.1973. For the
D 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
th~ defendant failed to perform the contract in spite of notice
taking into account the two payments of Rs.1,000/- and
E 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
F 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'.

I 3. The defendant had died even before filing of the written
G statement which was then filed by his legal representatives. It
was denied in the 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 f"""
19.7.1952 or 21.7.1952 was denied. They also denied the terms
H set out in the agreement. It was submitted that the signature of
BAL KRISHNA AND ANR. v. BHAGWAN DAS (DEAD) 399
AND ORS. [P.P. NAOLEKAR, J.]

Manaklal was obtained by the plaintiffs on some papers in A
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. B

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 C
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 D
amount of Rs.20,000/-. On these findings, the plaintiffs' 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 E
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 F
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 G
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 $Um of Rs.5,000/- was paid to late Manaklal
and plaintiffs' willingness to perform their part of the contract H
400 SUPREME COURT REPORTS [2008) 5 S. C. R

A were also challenged. It was submitted that as per tne plaintiffs'
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' readiness and
willingness was only to make the payment as per the agreement
B Ex.P/1 dated 19.7.1952 and not agreement Ex.P/2 dated
21.7.1952.

6. Both appeals - one filed by the plaintiffs and the other
by legal representatives of late Manaklal - were dismissed by
the High Court on 10.4.1995. However, in letters patent appeals,
C 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'
own showing a subsequent agreement Ex.P/2 was entered into
0
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
rnodification/clarification of the agreement Ex.P/1, but a bare
E 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 ifthe 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
F 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
G 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
H aver and prove that he has performed or has always been ready
BAL KRISHNA AND ANR. v. BHAGWAN DAS (DEAD) 401
AND ORS. [P.P. NAOLEKAR. J.]
.... ~

and willing to perform the essential terms of the contract which A
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 B
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
c
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 reconveyancewas 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 D
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 E
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 F
and plaintiffs' 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
G
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 "the Act") corresponds with Section 24 of the old
Act of 1877 which lays down that the person seeking specific H
402 SUPREME COURT REPORTS [2008] 5 S.C.R.

)... -#
A 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
k> be performed by him. The specific performance of the contract
cannot be enforced in favour of the person who fails to aver and
B 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
c 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's readiness and
willingness must be in accordance with the terms of the
D
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
E relief fof 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
F 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
G ·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's discretion to grant
,.
specific performance is not exercised if the contract is not equal
......
H and fair, although the contract is not void.
BAL KRISHNA AND ANR. v. BHAGWAN DAS (DEAD) 403
AND ORS. [P.P. NAOLEKAR, J.]
~ _..
9. As per the pleadings, the plaintiffs' allegation is that on A
the date of the execution of the said deed dated 19. 7 .1952,
there was an agreement of resale 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 B
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. c
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 D
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
E

need of execution of the sale deed in favour of the defendant
was alleged to be the plaintiffs'. need of money on that date,
then how it is that Rs.15,000/7 has been paid by the plaintiffs to F
~ ..... 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 G
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 H
404 SUPREME COURT REPORTS [2008] 5 S.C.R.

A No.877383 drawn on Punjab National Bank, Siyaganj Branch. ....
Sale deed does not show that the amount of Rs.10,000/- was lJ
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
i !
B 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
• I 1
I

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
c consideration ~I
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
D plaintiffs' 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
tb 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
E 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
F would want to purchase the house, then the sale deed would be
executed by the defendant in their favour on certain terms and
¢onditions 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
G
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
H Section 16 read with Explanation (ii), a contract may be open
BAL KRISHNA AND ANR v. BHAGWAN DAS (DEAD) 405
AND ORS. [PP. NAOLEKAR, J.]

~- -""" to more than one construction and a plaintiff may allege the A
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's suit would not be dismissed merely because one
of the constructions placed by the plaintiff to the contract was B
not accepted by the 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 'the
plaintiffs have been and are ready and willing to perform their c
part of the contract according to its true construction'. 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 D
r 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:
E
" ... 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's case for a relief. Such an expression may be pointed,
precise, some times vague but still could be gathered F
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
G
as a whole. This does not distract one from performing his
,. obligations ;:is required under a statute."

~
In Motilal Jain v. Ramdasi Devi (Smt.) and Others,
(2UOO) G sec 420, this Court has held that an averment as to
readiness and willingness in plairt is sufficient if the plaint, read H
406 SUPREME COURT REPORTS [2008] 5 S.C.R.

A as a whole, clearly indicates that the plaintiff was always and is
,)..... ..
still ready and willing to fulfil his part ofthe obligations. Such
av.erment is not a mathematical formula capable of being
expressed only in certain specific words or terms.
Further, in Umabai and Another v. Nilkanth Dhondiba
B Chavan (Dead) by LRs. and Anr., (2005) 6 SCC 243, this
Cc:>urt in para 30 has said as under:
"It is well settled that the conduct of the parties, with a view
to arrive at a finding as to whether the plaintiff-respondents
c 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
D
plaintiff-respondents must be judged having regard to the
1
entirety of the pleadings as also the evidences brought on
records."
15. When the entire plaint is read, there is no reference of
E 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
F as per the agreement dated 19. 7.1952. The agreement dated
21. 7.1952 has been referred to only for the purposes of
c;iccounting to be made for the payment of the consideration for
resale of property and there also the plaintiffs have specifically
.A.
-
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
G
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 l-
.
maintained that the agreement of reconveyance was for a sale
H consideration of Rs.10,000/- only of which Rs.5,000/- has already
BAL KRISHNA AND ANR. v. BHAGWAN DAS (DEAD) 407
AND ORS. [P.P. NAOLEKAR, J.]

been paid - Rs.1,000/- on 13.10.1953 and Rs.4,000/- on A
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 Raman la I 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 B
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 C
Ex.P/1dated19.7.1952 was not executed by the defendant in
favour of the plaintiffs. The 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 D
consideration for the reconveyance would be Rs.25,000/-. The
plaintiffs' 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 E
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 F
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.
G
19. For the aforesaid reasons, the appeal is dismissed.
However, in the circumstances of the case, there sball be no
order as to costs.
D.G. Appeal dismissed.
H