High Court of Gujarat
JINABHAI LIMABHAI KAPADIAversusHIRJIBHAI MAHIRAJBHAI HINGRAJIYA (SINCE DECEASED)
- Disposal
- 47-DISPOSAL IN ANY OTHER MODE FH
Holding
The appellate court held that the trial court was correct in dismissing the suit for specific performance because the plaintiffs failed to prove a valid agreement to sale, the requisite payments, and their readiness and willingness to perform, and therefore the appeal is dismissed.
Summary
The appellants filed a first appeal under Section 96 of the Code of Civil Procedure challenging the trial court's dismissal of their suit for specific performance of a 1990 agreement to sale of land in Junagadh. The trial court found that the plaintiffs failed to prove the existence of a valid agreement to sale dated 24‑09‑1990, the receipt of Rs 1,90,000, and the later extension deed of 21‑04‑1991, and that the signatures on the documents were inconsistent. The court also held that the plaintiffs were not ready and willing to pay the balance consideration within the stipulated 15‑month period and that the land in Survey No. 26/1 was a fragment land barred by the Gujarat Prevention of Fragmentation Act. The High Court affirmed the trial court’s findings, dismissed the appeal, and ordered the continuation of the interim status‑quo relief. A refund of the consideration with interest was ordered in the lower suit.
Issues considered
- Whether the plaintiffs proved that the defendant executed an agreement to sell on 24‑09‑1990 and received Rs 1,90,000.
- Whether the plaintiffs proved the execution of the agreement to sell on 26‑09‑1990 for Rs 1,45,000 per vigha and receipt of Rs 2,00,000.
- Whether the sale deed was to be executed within 15 months as per the agreement.
- Whether the extension deed of 21‑04‑1991 and payment of Rs 5,00,000 extending the time limit to six years was proved.
- Whether the plaintiffs were ready and willing to perform their part of the agreement.
- Whether the plaintiffs proved that the defendant refused to perform his part of the agreement.
- Whether the defendant proved he had no right, title or interest over the suit land.
- Whether the agreement to sale was bogus and forged.
- Whether the plaintiffs were entitled to specific performance and injunction.
Legislation cited
- Bombay Land Revenue Codes. 1879
- Code of Civil Procedure, 1908s. 96
- Indian Trusts Acts. 90, s. 91, s. 92
- Limitation Act, 1963s. 54
- Specific Relief Act, 1963s. 10, s. 12, s. 16(c), s. 17, s. 20
Subjects
specific performanceagreement to salereadiness and willingnesslimitation periodfragment landtitle clearancesale deedequitable remedycivil procedurespecific relief act
Judgment
C/FA/1685/2011 CAV JUDGMENT DATED: 12/06/2026
Reserved On : 01/04/2026
Pronounced On : 12/06/2026
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 1685 of 2011
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE BHARGAV D. KARIA
and
HONOURABLE MR.JUSTICE L. S. PIRZADA
==========================================================
Approved for Reporting Yes No
✓
==========================================================
JINABHAI LIMABHAI KAPADIA & ANR.
Versus
HIRJIBHAI MAHIRAJBHAI HINGRAJIYA (SINCE DECEASED) & ORS.
==========================================================
Appearance:
MR MEHUL SURESH SHAH, SENIOR ADVOCATE WITH MR. ZALAK B
PIPALIA(6161) for the Appellant(s) No. 1,2
MR ANSHIN H DESAI(1020) for the Appellant(s) No. 2
MR DEVEN PARIKH, SENIOR ADVOCATE WITH MR.BHANUKUMAR B
AGRAWAL(10031) for the Defendant(s) No. 1
==========================================================
CORAM:HONOURABLE MR. JUSTICE BHARGAV D. KARIA
and
HONOURABLE MR.JUSTICE L. S. PIRZADA
CAV JUDGMENT
(PER : HONOURABLE MR. JUSTICE BHARGAV D. KARIA)
1.Heard learned Senior Advocate Mr. Mehul Shah
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assisted by learned advocate Mr. Zalak B.
Pipalia for the appellants original
plaintiffs and learned Senior Advocate Mr.
Deven Parikh assisted by learned advocate Mr.
Bhanukumar B. Agrawal for the respondents
original defendants.
2.This appeal under section 96 of the Code of
Civil Procedure, 1908 (For short “the Code”)
is preferred challenging the Judgment and
Decree dated 11.05.2011 passed by learned 9th
Additional Senior Civil Judge, Junagadh in
Special Civil Suit No.64 of 1999 whereby the
suit filed by the appellants original
plaintiffs is ordered to be rejected.
3.The appeal is admitted by order dated
15.06.2011 (Coram : Hon’ble Mr. Justice
Jayant Patel and Hon’ble Mr. Justice J.C.
Upadhyaya, As Their Lordships were then).
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4.In Civil Application - For Interim Relief
No.6225 of 2011, by order dated 15.06.2011,
it was directed that the respondents shall
maintain status-quo qua the title and
possession in respect of property in
question, until final disposal of the appeal
and application was disposed of accordingly.
5.For the sake of convenience, appellants and
respondents are here-in-after referred to as
the plaintiffs and the defendant
respectively.
Facts:
6.Brief facts of the case are that the
plaintiffs filed Special Civil Suit No.64 of
1999 seeking specific performance of
Agreement to Sale dated 26.09.1990 (Exh.108)
and for declaration and permanent injunction
in respect of land bearing Revenue Survey
No.25 and Revenue Survey No.26/1 situated at
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Village Timbawadi, Taluka and District
Junagadh.
7.The averments made in the plaint discloses
that the plaintiffs were agriculturists
residing at Morvada in Timbawadi village and
the defendant was residing at Timbawadi and
holding land bearing Revenue Survey No.25
admeasuring 5 acres and 13 gunthas and Survey
No.26/1 admeasuring 14 gunthas in Sim of
Village Timbawadi, Taluka and District
Junagadh.
8.Father of the defendant Mahidas Arjan was
farmer of old State of Junagadh and
possession rights were given to him under
Bombay Land Revenue Code,1879 in 1950. The
permanent rights were entered into revenue
records for Revenue Survey No.8, 25, 26/1 and
27 of Timbawadi by Promulgation Entry No.31.
Thereafter Mahidas Arjan has entered the land
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bearing Revenue Survey No.25 in the name of
the defendant and land bearing Revenue Survey
No.27 in the name of his second son Kantilal.
By application dated 18.04.1990 made by
Mahidas Arjan, Entry No.307 was mutated in
property record regarding land bearing
Revenue Survey No.26/1 adjacent to Revenue
Survey No.25 in the name of his four sons
defendant-Hirjibhai and other three sons,
Hasmukh, Kantilal and Himmatlal.
9.It also appears that Mahidas Arjan borrowed a
loan from State Bank of Saurashtra, Juangadh
mortgaging land bearing Revenue Survey No.27
and 26/1 and Revenue Entries were mutated
regarding the same.
10. It is the case of the plaintiffs that
the defendant Hirjibhai Mahidas agreed to
sell the parcels of land situated at Revenue
Survey No.25 and Revenue Survey No.26/1
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stating that Revenue Survey No.25 was of his
share and his brothers and father had taken
away their rights from that land and he would
make necessary entry pertaining to the same
in the revenue record for land situated at
Revenue Survey No. 26/1 and he was empowered
to sell the land of Revenue Survey No.26/1.
11. It is the case of the plaintiffs that
an acknowledgement receipt accepting the
consideration of Rs. 1,90,000/- (Exh.107) was
executed by the defendant issuing a receipt
of the same to the plaintiffs and thereafter
agreement to sale dated 26.09.1990 (Exh.108)
was executed for Revenue Survey Nos. 25 and
26/1 in favour of the plaintiffs for an
agreed consideration of Rs.1,45,000/- per
Vigha. The plaintiffs also paid Rs.
2,00,000/- as consideration at the time of
execution of agreement to sale.
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12. As per the terms of agreement to sale,
it was agreed that remaining consideration
was to be paid within 15 months from the date
of agreement to sale and thereafter sale deed
was to be executed and before that defendant
was to clear the title so as to empower him
to sell the land bearing Revenue Survey
No.26/1 striking out the name of his
remaining three brothers from the revenue
record and clearing the other charges and
dues of the Government and cooperative
society.
13. It appears that defendant was unable to
clear the charges on the land and was also
unable to strike off the names of his
brothers from Revenue Survey No.26/1 within
15 months time limit.
14. It is the case of the plaintiffs that
the plaintiffs were ready and willing to pay
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the remaining amount of consideration but in
spite of repeated requests, defendant did not
clear his title and act as per the agreed
condition and instead of utilising the amount
of consideration paid for clearing the title,
it was utilised for other purposes and the
defendant further demanded remaining amount
of consideration from the plaintiffs which
was refused by the plaintiffs and further
showed their readiness to pay the remaining
amount of consideration at the time of
execution of the sale deed. Therefore, the
defendant prayed for more time for title
clearance and also agreed to execute writing
for the same. It is the case of the
plaintiffs that as the plaintiffs were
willing to buy the land in that area,
additional amount of Rs. 5,00,000/- was paid
to the defendants on 21.04.1991 and writing
was executed on the stamp paper on the same
day (Exh.109)extending the time limit to 6
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years for execution of the sale deed instead
of 15 months as agreed in the agreement to
sale dated 26.09.1990. Thus, according to the
plaintiffs amount of Rs.8,90,000/- was paid
towards consideration to the defendant in the
year 1990-1991 extending the time limit to 6
years for execution of the sale deed.
15. It is the case of the plaintiffs that as
the time limit of six years was completing on
21.04.1997, the plaintiffs repeatedly asked
the defendant to execute the sale deed either
individually or through third party, but the
defendant failed to comply with such request.
The plaintiffs, therefore, published a public
notice in “Sandesh” Daily Newspaper, Rajkot
Edition on 27.11.1997 (Exh.104) that nobody
should purchase the land bearing Revenue
Survey Nos. 25 and 26/1.
16. The defendant instead of giving reply to
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the public notice filed caveat application on
21.02.1998 (Exh.106) wherein it was admitted
that agreement to sale dated 29.09.1990 was
executed for sale of the land at Revenue
Survey Nos. 25 and 26/1 by the defendants. It
is also averred in the caveat that an
agreement to sale dated 05.02.1991 was also
executed for resale of the land.
17. The plaintiffs thereafter preferred
Special Civil Suit No.64 of 1999 on
17.05.1999 for specific performance,
declaration and permanent injunction as well
as damages in lieu of specific performance.
18. On service of summons and notice, the
defendants filed written statement at Exh.12
denying the averments made in the plaint
contending inter-alia that so far as land
situated in Survey No.26/1 is a fragment land
under Gujarat Prevention of Fragmentation and
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Consolidation of Holdings Act,1947 and sale
or agreement of fragment land is void under
the said Act and part of Revenue Survey No.25
was acquired for by-pass road of Junagadh and
name of the defendant was entered into
revenue record for compensation proceedings.
It was also contended that the plaintiffs
were doing the money lending business in
village without any license and as the
defendant needed amount of Rs. 1,00,000/-, it
was agreed by the defendants to borrow the
amount from the plaintiffs on interest at the
rate of 10% per month and as a security, the
agreement to sale was executed and signature
of the defendant was taken on stamp paper of
Rs. 5/-. It was also contended that writing
for payment of Rs. 1,90,000/- alleged to have
been executed on 24.09.1990(Exh. 107) is
concocted and defendant did no sign any such
writing nor accepted any amount. It was
therefore, submitted that the suit is
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required to be dismissed as the same is filed
after nine years and hence barred by
limitation.
19. Learned Judge framed the following
issues after granting temporary injunction
below Exh.5 to maintain the status-quo till
disposal of the suit:
SR. ISSUES FINDINGS
NO.
1. Whether the Plaintiff proves that In Negative
Defendant has executed agreement
to sell 14 vigha of suit property
to plaintiff on Dt: 24.09.1990 and
accepted an amount of Rs.
1,90,000/- (Rupees One Lakh Niney
Thousand only) by way of
consideration?
2. Whether the plaintiff proves that Partly in
the defendant executed agreement affirmative
to sell 14 vigha of suit property
to the plaintiff on dt:26.09.1990
and agreed to sell each vigha for
an amount of Rs.1,45,000/- and
accepted an amount of
Rs.2,00,000/- by way of
consideration from the
Plaintiff’s?
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3. Whether the plaintiff proves that In
as per agreement the sale deed was affirmative
to be executed within 15 months
from date of agreement to sell?
4. Whether the plaintiff proves that In negative
the defendant has executed
additional document in original
agreement to sell dt.25-9-90
dt.21-4-91 on and further accepted
Rs.5,00,000/- by way of
consideration from the plaintiff
and further extended the time
limit to six years?
5. Whether the plaintiff is ready and In negative
willing to perform his part of
agreement to sell dtd.25/9/90?
6. Whether the plaintiff proves that In negative
the defendant has refused to
perform his part of agreement
dt.25-9-90?
(6A) Whether the defendant proves
that he has no right, title or
Partly in
interest over the suit property?
affirmative
7. Whether the defendant proves that In
plaintiff has made bogus and affirmative
forged agreement to sell?
8. Whether the plaintiff's entitled In negative
to get relief as prayed for?
9. Whether the plaintiff's is In negative
entitled to get injunction as
prayed for?
10.What order and decree? As per final
order
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20. It appears that prior to filing of
Special Civil Suit No.64 of 1999, defendant
had entered into agreement to sale dated
09.07.1998 in respect of the suit land and
possession thereof was handed over for part
consideration of Rs.15,51,000/- in favour of
one Mr. Parbatbhai Jethabhai Bhatia. An
application was preferred by the said third
party to be joined as party defendant in the
suit which was rejected by the trial Court on
05.09.2007 by order passed below Exh.32 which
was challenged before this Court in writ
petition being Special Civil Application
No.27463 of 2007 which was also rejected vide
order dated 21.07.2008 on the ground that
there is no privity of contract between the
third party and the plaintiffs of the present
suit.
21. It also appears that said third party
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has filed Special Civil Suit No.108 of 2010
seeking specific performance of agreement to
sale dated 09.07.1998 for the suit land which
is pending in the Court of Additional Senior
Civil Judge, Junagadh wherein the plaintiffs
of the present suit made an application to be
joined as party. However, such application
was also rejected and therefore, Special
Civil Application No.9018 of 2011 was
preferred and by order dated 20.06.2012, the
writ petition is allowed and plaintiffs of
the present suit have been ordered to be
impleaded as party defendant in Special
Civil Suit No.108 of 2010. It appears that
the third party also filed Civil Application
No.2/2011 in this appeal which is rejected by
order dated 17.07.2025 on the ground of “Res
judicata”.
22. Both the sides adduced oral and
documentary evidence which have been
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considered by the learned Judge in detail in
the impugned Judgment and Order and has
decided the issues as per the findings stated
against each issue here-in-above while
dismissing the suit.
Submissions of the appellants-plaintiffs
23. Learned Senior Counsel Mr. Mehul Shah
for the appellants-plaintiffs submitted that
the learned Trial Court has failed to
consider the most relevant aspect that the
defendant did not deny his signature on the
Agreement to Sale dated 26.09.1990 at Exh.108
but in fact it is admitted and therefore,
learned Trial Court ought to have held that
agreement to sale at Exh.108 is proved.
24. It was submitted that as per the
agreement to sale, the condition was to pay
the remaining balance amount of consideration
within 15 months from the date of agreement
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and on payment of consideration, final sale
deed was to be executed, however before that
defendant was required to clear the title in
respect of the suit land and more
particularly, to remove the names of his
brothers from the revenue record qua Survey
No. 26/1 or to take their consent to execute
the sale deed as well as to clear the dues of
the Government and co-operative society and
to make the land free from all encumbrances.
It was pointed out that during the period of
15 months, the defendant could not fulfill
his obligation to clear the title of the suit
land so as to enable the plaintiffs to pay
the remaining consideration and to execute
the sale deed. It was submitted that the
plaintiffs have paid additional amount of Rs.
5,00,000/- towards sale consideration on
21.04.1991 so as to enable the defendant to
clear the title and in exchange written
acknowledgment (Exh.109) for receipt of Rs.
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5,00,000/- was executed by the defendant
extending the time limit for execution of the
sale deed by 6 years so as to enable the
defendant to pay the outstanding dues of the
bank and the co-operative society and to
remove the names of his brothers from revenue
record of Survey No. 26/1.
25. It was submitted that the trial Court
has exceeded its jurisdiction by comparing
the signature of the defendant on documents
at Exhs. 107, 108 and 109 on its own to
arrive at the conclusion that the signature
of the defendant varies in these documents.
It was pointed out that the trial Court could
not have exercised such power of comparing
the signature on its own to decide the case
against the plaintiffs and even if the trial
Court chooses to do so it was bound to record
specific reasons in detail. However, in facts
of the case, no such reasons are recorded to
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compare the signature to conclude that
plaintiffs failed to prove document extending
time at Exh. 109.
26. It was submitted that signatures on Exh.
108 is not disputed by the defendant whereas
trial Court discarded Exh.109 whereby the
time period of contract was extended by six
years on the ground of difference in
signature without assigning any cogent
reason. It was pointed out that Exh.109 is a
vital piece of evidence to prove the case of
the plaintiffs which has been discarded by
the trial Court to conclude that the
plaintiffs have failed to prove what exact
amount is paid to the defendants. It was
submitted that plaintiffs were always ready
and willing to pay the balance amount of sale
consideration but the defendant failed to
execute the final sale deed by not getting
the title clearance of the suit land and
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therefore, the plaintiffs were compelled to
issue public notice on 27.11.1997 on
completion of 6 years in daily newspaper
“Sandesh”, Rajkot edition. However, defendant
instead of executing the sale deed or
replying to the notice published in the
newspaper filed a caveat application in the
Court. It was therefore, submitted that
conduct of the defendant would demonstrate
that the defendant was never ready to perform
his part of the agreement to sale to execute
the sale deed by accepting the balance amount
of sale consideration from the plaintiffs.
27. It was pointed out from the caveat
application filed by the defendant that the
defendant has not denied execution of the
agreement to sale and therefore, learned
trial Court has erred in not considering such
admission on behalf of the defendant.
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28. It was further submitted that the trial
court ought to have held that documents at
Exh. 108 and Exh. 109 are proved by the
plaintiffs because on combined reading of
both the documents, it emerges that there is
no variance between the same and both the
documents demonstrate the readiness and
willingness of the plaintiffs to fulfill
their part of obligation to pay the
consideration which is corroborated by public
notice issued by the plaintiffs.
29. It was submitted that as the document at
Exh.108 agreement to sale is admitted by the
defendant, same is required to be considered
as held by Hon’ble Apex Court in case of P.
Ramasubbamma v. Vijayalakshmi reported in
2022 (7) SCC 384, wherein it is held that
once execution of agreement to sell and
payment/receipt of advance substantial sale
consideration was admitted by the vendor,
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thereafter nothing further is required to be
proved by the plaintiff-vendee. It was
therefore, submitted that the Trial Court was
not justified in dismissing the suit for
specific performance of agreement to sell as
agreement to sale (Exh.108) and part payment
made by the plaintiffs are not in dispute.
30. It was submitted that in similar facts
the Hon’ble Apex Court in case of K. Prakash
v. B.R. Sampath Kumar reported in (2015) 1
Supreme Court Cases 597 has held that once an
agreement to sell is legal and validly proved
and further requirements for getting a decree
of specific performance is established then
the Court has to exercise its discretion in
favour of parties seeking relief for specific
performance. Reliance was placed on para nos.
13 to 16 of the said decision which read as
under:
“13. Indisputably, remedy for
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specific performance is an equitable
remedy. The Court while granting
relief for specific performance
exercise discretionary jurisdiction.
Section 20 of the Act specifically
provides that the court's
jurisdiction to grant decree of
specific performance is
discretionary but not arbitrary.
Discretion must be exercised in
accordance with the sound and
reasonable judicial principles.
14. The King's Bench in Rookey's
Case [77 ER 209; (1597) 5 Co.Rep.99]
it is said :
"Discretion is a science, not to
act arbitrarily according to
men's will and private
affection: so the discretion
which is exercised here, is to
be governed by rules of law and
equity, which are to oppose, but
each, in its turn, to be
subservient to the other. This
discretion, in some cases
follows the law implicitly, in
others or allays the rigour of
it, but in no case does it
contradict or overturn the
grounds or principles thereof,
as has been sometimes ignorantly
imputed to this Court. That is a
discretionary power, which
neither this nor any other
Court, not even the highest,
acting in a judicial capacity is
by the constitution entrusted
with"
15. The Court of Chancery in
Attorney General V/s. Wheat [(1759)
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1 Eden 177; 28 ER 652] followed the
Rooke's case and observed :
"the law is clear and courts of
equity ought to follow it in
their judgments concerning
titles to equitable estates;
otherwise great uncertainty and
confusion would ensue. And
though proceedings in equity are
said to be secundum discretionem
boni vin, yet when it is asked,
vir bonus est quis- The answer
is, qui consulta partum, qui
leges juraq servat. And as it is
said in Rooke's case, 5 Rep. 99
b, that discretion is a science
not to act arbitrarily according
to men's will and private
affection: so the discretion
which is exercised here, is to
be governed by rules of law and
equity, which are to oppose, but
each, in its turn, to be
subservient to the other. This
discretion, in some cases
follows the law implicitly, in
others or allays the rigour of
it, but in no case does it
contradict or overturn the
grounds or principles thereof,
as has been sometimes ignorantly
imputed to this Court. That is a
discretionary power, which
neither this nor any other
Court, not even the highest,
acting in a judicial capacity is
by the constitution entrusted
with. This description is full
and judicious, and what ought to
be imprinted on the mind of
every judge."
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16. The principles which can be
enunciated is that where the
plaintiff brings a suit for specific
performance of contract for sale,
the law insists a condition
precedent to the grant of decree for
specific performance that the
plaintiff must show his continued
readiness and willingness to perform
his part of the contract in
accordance with its terms from the
date of contract to the date of
hearing. Normally, when the trial
court exercises its discretion in
one way or other after appreciation
of entire evidence and materials on
record, the appellate court should
not interfere unless it is
established that the discretion has
been exercised perversely,
arbitrarily or against judicial
principles. The appellate court
should also not exercise its
discretion against the grant of
specific performance on extraneous
considerations or sympathetic
considerations. It is true, as
contemplated under Section 20 of the
Specific Relief Act, that a party is
not entitled to get a decree for
specific performance merely because
it is lawful to do so. Nevertheless
once an agreement to sell is legal
and validly proved and further
requirements for getting such a
decree is established then the Court
has to exercise its discretion in
favour of granting relief for
specific performance.”
31. It was also pointed out that the Apex
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Court considering the period in litigation
has also increased the sale consideration
keeping in mind the factual position of
increase in the price of the property in area
where it was situated.
32. In support of his submission that the
plaintiffs were ready and willing to perform
their part of contract of agreement to sale,
reliance was placed on the decision of the
Hon’ble Apex Court in case of A Kanthamani v.
Nasreen Ahmed reported in 2017(4) SCC 654
wherein Hon’ble Apex Court in para nos. 28 to
30 has considered interpretation of
expression “readiness and willingness” which
reads as under:
“28. The expression "readiness and
willingness" has been the subject
matter of interpretation in many
cases even prior to its insertion in
Section 16 (c) of the Specific
Relief Act, 1963 . While examining
the question as to how and in what
manner, the plaintiff is required to
prove his financial readiness so as
to enable him to claim specific
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performance of the
contract/agreement, the Privy
Council in a leading case which
arose from the Indian Courts
(Bombay) in Bank of India Limited &
Ors. v. Jamsetji A.H. Chinoy and
Chinoy and Company, AIR 1950 PC 90,
approved the view taken by Chagla
A.C.J., and held inter alia that "
it is not necessary for the
plaintiff to produce the money or
vouch a concluded scheme for
financing the transaction to prove
his readiness and willingness."
29. The following observations of
the Privy Council are apposite:
"21..............Their Lordships
agree with this conclusion and
the grounds on which it was
based. It is true that the
plaintiff 1 stated that he was
buying for himself, that he had
not sufficient ready money to
meet the price and that no
definite arrangements had been
made for finding it at the time
of repudiation. But in order to
prove himself ready and willing
a purchaser has not necessarily
to produce the money or to vouch
a concluded scheme for financing
the transaction. The question is
one of fact, and in the present
case the Appellate Court had
ample material on which to found
the view it reached. Their
Lordships would only add in this
connection that they fully
concur with Chagla A.C.J. when
he says:
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"In my opinion, on the evidence
already on record it was
sufficient for the court to come
to the conclusion ' that
plaintiff 1 was ready and
willing to perform his part of
the contract. It was not
necessary for him to ' work out
actual figures and satisfy the
court what specific amount a
bank would have advanced on the
mortgage of his property and the
pledge of these shares. I do not
think that any jury--if the
matter was left to the jury in
England--would have come to the
conclusion that a man, " in the
position in which the plaintiff
was, was not ready and willing
to pay the purchase price of the
shares which he had bought from
defendants 1 and 2."
For the foregoing reasons, their
Lordships answer question(4) in
the affirmative."(Emphasis
supplied)
30. This Court in Sukhbir Singh &
Ors. v. Brij Pal Singh & Ors., AIR
1996 SC 2510=(1997) 2 SCC 200
followed the aforesaid principle
with these words:
"5. Law is not in doubt and it
is not a condition that the
respondents should have ready
cash with them. The fact that
they attended the Sub-
Registrar's office to have the
sale deed executed and waited
for the petitioners to attend
the office of the Sub-Registrar
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is a positive fact to prove that
they had necessary funds to pass
on consideration and had with
them the needed money with them
for payment at the time of
registration. It is sufficient
for the respondents to establish
that they had the capacity to
pay the sale consideration. It
is not necessary that they
should always carry the money
with them from the date of the
suit till the date of the
decree. It would, therefore, be
clear that the courts below have
appropriately exercised their
discretion for granting the
relief of specific performance
to the respondents on sound
principles of law."
33. Reliance was also placed on the decision
of Hon’ble Supreme Court in case of Gaddipati
Divija v. Pathuri Samrajyam reported in 2023
(6) Scale 331 wherein the Hon’ble Apex Court
considered the provision of section 16(c) of
the Specific Relief Act, 1963 and more
particularly, Explanation (ii) below
clause(c) prior to 2018 amendment to submit
that the plaintiff was entitled for specific
performance of contract if he avers and
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proves that he has performed or has always
been ready and willing to perform his
obligation under the contract. The
explanation attached to clause (c) clarifies
that in a contract involving the payment of
money, the plaintiff need not actually
deposit the money to the defendant, and that
he must aver that he has performed, or is
ready and willing to perform the contract
according to its true construction.
Reliance was placed on para nos. 22 to 24 and
30 which read as under:
“22. We have carefully considered
the rival contentions of the learned
Senior Counsel appearing for the
parties and perused the entire
records. The only issue involved in
the instant appeal before us is:-
Whether the High Court was justified
in allowing Respondent No. 1's
appeal and decreeing the suit for
specific performance, by holding
that the deceased G. Venugopala Rao
and his legal heirs (including the
Appellants herein) failed to perform
their obligation with regard to
getting the property measured and
demarcated, while Respondent No. 1
herein was always ready and willing
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to perform her part of contract by
paying the balance sale
consideration-
23. At the outset, we would like to
mention that Section 16 (c) of the
Specific Relief Act, 1963 (along
with its explanation) is the
relevant provision of law which is
attracted in the present case, and
as has also been held by the High
Court. The 2018 Amendment to the
Specific Relief Act made certain
amendments to Section 16 as well.
However, it has been clarified in
the recent 3-Judge Bench judgment of
this Court in Katta Sujatha Reddy v.
Siddamsetty Infra Projects (P) Ltd.
& Ors., (2023) 1 SCC 355 that the
2018 Amendment was not a mere
procedural enactment, but it had
substantive principles built into
its working, and, as such, the said
Amendment is prospective in nature
and cannot apply to those
transactions that took place prior
to its enforcement. Therefore, in
the present case, Section 16, as it
stood prior to the 2018 Amendment,
would be applicable, since the
matter dates back to 2002. Section
16 (as it then stood) is being
reproduced hereunder:-
"16. Personal bars to relief.-
Specific performance of a
contract cannot be enforced in
favour of a person-
(a) who would not be entitled to
recover compensation for its
breach; or
(b) who has become incapable of
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performing, or violates any
essential term of, the contract
that on his part remains to be
performed, or acts in fraud of
the contract, or wilfully acts
at variance with, or in
subversion of, the relation
intended to be established by
the contract; or
(c) who fails to aver and prove
that he has performed or has
always been ready and willing to
perform the essential terms of
the contract which are to be
performed by him, other than
terms of the performance of
which has been prevented or
waived by the defendant.
Explanation.- For the purposes
of clause (c),-
(i) where a contract involves
the payment of money, it is not
essential for the plaintiff to
actually tender to the defendant
or to deposit in court any money
except when so directed by the
court;
(ii) the plaintiff must aver
performance of, or readiness and
willingness to perform, the
contract according to its true
construction."
24. On a bare perusal of the
aforementioned section, it becomes
clear that prior to the 2018
Amendment, clause (c) of Section 16
laid down that the plaintiff is
entitled for a specific performance
of contract if he avers and proves
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that he has performed or has always
been ready and willing to perform
his obligation under the contract.
The explanation attached to clause
(c) further clarified that in a
contract involving the payment of
money, the plaintiff need not
actually deposit the money to the
defendant, and that he must aver
that he has performed, or is ready
and willing to perform the contract
according to its true construction.”
34. Reliance was placed on the decision of
Hon’ble Supreme Court in case of Nadiminti
Suryanarayan Murthy (Dead) Through Legal
Representatives v. Kothurthi Krishna Bhaskara
Rao and others reported in (2017) 9 Supreme
Court Cases 622, in support of the submission
that once bona fide agreement to sale is
proved by the plaintiff then the next
question is whether the plaintiff was able
to prove that he was ready and willing to
perform his part of the agreement and that he
has always been ready and willing to perform
his part of the agreement and has in fact
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performed his part and secondly, whether any
breach is committed by the defendant in not
performing his part has to be considered as
per the provisions of section 16(c) of the
Specific Relief Act. It was therefore,
submitted that in facts of the case before
the Apex Court, it was held that once the
plaintiff was ready and willing to perform
his part of agreement, suit ought to have
been decreed in favour of the plaintiff and
against the defendant.
35. Reliance was placed on the decision of
Hon’ble Apex Court in case of Motilal Jain v.
Ramdasi Devi (Smt) and others reported in
(2000) 6 Supreme Court Cases 420, wherein
Hon’ble Apex Court in facts of the case held
as under:
“9. That decision was relied upon by
a three Judges Bench of this Court
in Syed Dastagir's case (supra),
wherein it was held that in
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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. It is pointed out
that in India most of the pleas are
drafted by counsel and hence they
inevitably differ from one to the
other; thus, to gather true spirit
behind a plea it should be read as a
whole and to test whether the
plaintiff has performed his
obligations, one has to see the pith
and substance of the plea. It was
observed, "Unless a statute
specifically requires a plea to be
in any particular form, it can be in
any form. No specific phraseology or
language is required to take such a
plea. The language in Section 16(c)
of the Specific Relief Act, 1963
does not require any specific
phraseology but only that the
plaintiff must aver that he has
performed or has always been and is
willing to perform his part of the
contract." So the compliance of
"readiness and willingness" has to
be in spirit and substance and not
in letter and form." It is thus
clear that an averment of readiness
and willingness in the plaint is not
a mathematical formula which should
only be in specific words. If the
averments in the plaint as a whole
do clearly indicate the readiness
and willingness of the plaintiff to
fulfil his part of the obligations
under the contract which is subject-
matter of the suit, the fact that
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they are differently worded will not
militate against the readiness and
willingness of the plaintiff in a
suit of specific performance of
contract for sale.
10. In the instant case a perusal of
paras 6 to 11 of the plaint do
clearly indicate the readiness and
willingness of the plaintiff. The
only obligation which he had to
comply with was payment of balance
of consideration. It was stated that
he demanded the defendant to receive
the balance of consideration of Rs.
8000.00 and execute the sale deed.
The defendant was in Patna (Bihar)
at the time of notices and when he
came back to his place the plaintiff
filed the suit against him. In
support of his case, he adduced the
evidence of PW 1 and PW 2. The
plaintiff had parted with two-third
of the consideration at the time of
execution of Ext. 2. There is no
reason why he would not pay the
balance of one-third consideration
of Rs. 8,000.00 to have the property
conveyed in his favour.”
36. It was therefore submitted that once the
defendant has failed to perform his part of
the contract, the trial Court ought to have
decreed the suit in favour of the plaintiff.
37. Reliance was placed on decision of
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Hon’ble Apex Court in case of Beemaneni Maha
Lakshmi v. Gangumalla Appa Rao (Since Decd)
By Legal Representatives reported in (2019) 6
Supreme Court Cases 233 wherein Hon’ble
Supreme Court in para no.10 to 12 held that
when vendor fails to perform his part of
contract, failure of vendee to demonstrate
that he was having sufficient money with him
to pay the balance consideration as per the
agreement on date of his evidence is not much
of consequence.
38. Learned advocate Mr. Shah submitted that
expression “date” used in Article 54 of the
Limitation Act, 1963 is suggestive of a
specified date in the Calendar. It was
therefore, submitted that Article 54 of the
Limitation Act read with section 38 of the
Specific Relief Act, meaning of word “date”
and “fixed” would have to be considered to be
a specified date in the calendar and as such,
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in facts of the case once the defendant has
not performed the agreement to sale by
executing the sale deed in favour of the
plaintiffs on completion of 6 years as agreed
on 21.4.1991 agreement (Exh.109), the suit
was filed within three years in the year 1999
from the specified date i.e. 21.04.1997. In
support of his submission, reliance was
placed on the decision of Hon’ble Supreme
court in case of Ahmmadsahab Abdul Milla
(Dead) By Proposed Lrs. Versus Bibijan
reported in 2009(5) SCC 462 wherein Hon’ble
Apex Court has held as under:
“5. According to Advanced Law
Lexicon by P. Ramanatha Aiyar, 3rd
Edition 2005, the word `date' means
as follows:
"Date. (As a noun) The point of
time at which a transaction or
event takes place; time given or
specified; time in some way
ascertained and fixed; in a
deed, that part of the deed or
writing which expresses the day
of the month and year in which
it was made, (2 Bl. Commn. 304;
Tomlin). In Bement V/s. Trenton
Locomotive, etc.,Mfg. Co., 32
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NLJ 513 (515), it is said : `The
primary signification of the
word date, is not time in the
abstract, nor time taken
absolutely but, as its
derivation plainly indicates,
time given or specified time in
some way ascertained and fixed;
this is the sense in which the
word is commonly used. When we
speak of the date of a deed, we
do not mean the time when it was
actually executed but the time
of its execution, as given or
stated in the deed itself.
"Where a deed bears no date, or
an impossible date, and in the
deed reference is made to the
`date', that word must be
construed `delivery'; but if the
deed bears a sensible date, the
word `date', occurring in the
deed, means the day of the date,
and not that of the delivery"
(Elph. 123, citing Styles V/s.
Wardle, 4 B&C 908;
"Date", though sometimes used as
the shortened form of "day of
the date", is not its synonym;
but mean the particular time on
which an instrument is given,
executed, or delivered (Howard's
Case, 1 Raym. Ld 480; Armitt
V/s. Breame, 2 Raym Ld 1076;
Pewtress v Annan, 9 Dowl 828, at
pp. 834, 835).
"The word `date' is much more
commonly descriptive of a day
than of any smaller division of
time" (per Simpson V/s.
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Marshall, 37 SLR 316).
"Date" means day, so that where
a cover note providing for
temporary insurance of a motor
car expires "15 days after date
of commencement" it runs for the
full 15 days after the day on
which it was to commence
(Cartwright V/s. Mac Cormack;
Trafalgar Insurance Co. (Third
Party), 1963 1 WLR 18)."
6. `Fixed' in essence means having
final or crystallized form or
character not subject to change or
fluctuation.
7. The inevitable conclusion is that
the expression `date fixed for the
performance' is a crystallized
notion. This is clear from the fact
that the second part "time from
which period begins to run" refers
to a case where no such date is
fixed. To put it differently, when
date is fixed it means that there is
a definite date fixed for doing a
particular act. Even in the second
part the stress is on `when the
plaintiff has notice that
performance is refused'. Here again,
there is a definite point of time,
when the plaintiff notices the
refusal. In that sense both the
parts refer to definite dates. So,
there is no question of finding out
an intention from other
circumstances. Whether the date was
fixed or not the plaintiff had
notice that performance is refused
and the date thereof are to be
established with reference to
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materials and evidence to be brought
on record. The expression `date'
used in Article 54 of the Schedule
to the Act definitely is suggestive
of a specified date in the calendar.
We answer the reference accordingly.
The matter shall now be placed
before the Division Bench for
deciding the issue on merits.”
39. Reliance was also placed on decision of
Hon’ble Apex Court in case of Madina Begum
Versus Shiv Murti Prasad Pandey reported in
2016 (15) SCC 322, wherein the Apex Court has
held as under:
15. In coming to the conclusion that
the suit was barred by time, the
High Court considered Article 54 of
Schedule 1 of the Limitation Act,
1963 (for short, "the Act"). The
discussion thereon was brief and it
reads as follows:-
"Under Article 54 of the
Limitation Act, the prescribed
period of limitation for filing
a suit of specific performance
of a contract is three years and
the period of three years has to
be calculated based on two
contingencies i.e. the date
fixed for performance of the
contract or if no such date is
fixed, the date when the
plaintiffs had notice about
refusal of the performance by
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the defendants. In this case,
admittedly, a date for
performance is fixed i.e. six
months from the date of
execution of the contract and,
therefore, as a specific period
for performance is fixed, the
period of limitation would be
three years w.e.f. 3.03.2002
i.e. the date when the period of
six months for execution of the
sale-deed lapsed."
xxx
17. The interpretation of the first
part of Article 54 of Schedule 1 of
the Act is no longer res-integra.
Article 54 reads as follows:-
54. For specific performance Three The date fixed for the
of a contract years performance, or, if no
such date is fixed,
when the plaintiff has
notice that performance
is refused.
xxx
20. Quite independently and without
reference to the aforesaid decision,
another Bench of this Court in
Rathnavathi and Another v. Kavita
Ganashamdas, (2015) 5 SCC 223 came to
the same conclusion. It was held in
paragraph 42 of the Report that a mere
reading of Article 54 would show that
if the date is fixed for the
performance of an agreement, then non-
compliance with the agreement on the
date would give a cause of action to
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file a suit for specific performance
within three years from the date so
fixed. But when no such date is fixed,
the limitation of three years would
begin when the plaintiff has notice
that the defendant has refused the
performance of the agreement. It was
further held, on the facts of the case
that it did not fall in the first
category of Article 54 since no date
was fixed in the agreement for its
performance.
xxx
22. As far as the present appeal is
concerned, the agreement between Gulab
Bai and Madina Begum did not specify a
calendar date as the date fixed for
the performance of the agreement.
Consequently, the view expressed in
Ahmadsahab Abdul Mulla and Rathnavathi
on the first part of Article 54
clearly applies to the facts of the
case. In taking a contrary view,
ignoring the absence of a specified
date for the performance of the
agreement and reversing the Trial
Court, the High Court has fallen in
error.”
40. It was further contended that land
situated at Survey No.26/1 admeasuring 14
guntha was subjected to consent of other
brothers of the defendant and removal of
their names from the revenue record. It was
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submitted that with regard to the contention
raised on behalf of the defendant that the
defendant has no right to sell the land
bearing Revenue Survey No.26/1 as it is hit
by section 7 of the Gujarat Prevention of
Fragmentation and Consolidation of Holdings
Act,1947, it was submitted that section 20
of the Specific Relief Act confers equitable
jurisdiction upon the Trial Court and
conditional decree could have been passed by
the trial Court on regularisation of the land
situated at Revenue Survey No.26/1 which is
adjacent to Revenue Survey No.25 and on
consolidation of the lands under the
provisions of the relevant Act, the defendant
ought to have been directed to execute the
sale deed.
41. In support of his submission, reliance
was placed on the following decisions:
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1) Kartar Singh Versus Harjinder Singh
reported in 1990 (3) SCC 517, wherein it is
held as under:
“4. We are afraid that the very
foundation of the. reasoning of the
Division Bench of the High Court is
defective. It was never disputed
that the respondent and his sister
had each half share in the suit
properties. Hence a mere failure to
mention in the agreement that they
had such share in the property would
not entitle one to come to the
conclusion that they did not have
that share. When the property is
owned jointly, unless it is shown to
the contrary, it has to be held that
each one of the joint owners owns a
moiety of the property. In the
present case, there is neither a
pleading nor a contention that the
respondent and his sister did not
own the property in equal shares.
Secondly, the agreement of sale
clearly mentions that respondent was
entering into the agreement both on
behalf of himself and his sister,
and that he was, under the
agreement, selling the whole of his
share and also the whole of the
share of his sister in the property.
Further in the agreement itself he
had stated that he was responsible
to get the sale-deed executed by his
sister and that he would pursuade
her to do so. This being the case,
the properties agreed to be sold
were clearly distinguishable by the
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shares of the respective vendors. In
the circumstances when the absentee
vendor, for some reason or the
other, refused to accept the
agreement, there is no reason why
the agreement should not be enforced
against the vendor who had signed it
and whose property is identifiable
by his specific share.
5. We are, therefore, of the view
that this is not a case which is
covered by sec. 12 of the Act. It is
clear from sec. 12 that it relates
to the specific performance of a
part of a contract. The present is
not a case of the performance of a
part of the contract but of the
whole of the contract so far as the
contracting party, namely, the
respondent is concerned. Under the
agreement, he had contracted to sale
whole of his property. The two
contracts, viz. for the sale of his
share and of his sister's share were
separate and were severable from
each other although they were
incorporated in one agreement. In
fact, there was no contract between
the appellant and the respondent's
sister and the only valid contract
was with respondent in respect of
his share in the property.”
2) Hanumappa Channappa Hullur (D) By Lrs.
Versus Shivamaruthappa Parappa Kalli reported
in 2015 (9) Scale 328, wherein it is held as
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under:
“14. In Kammana Sambamurthy Vs.
Kalipatnapu Atchutamma case (supra)
this Court was concerned with a case
where vendor-husband and his wife
had each half share in the suit
property and the agreement for the
sale was executed by the vendor-
husband concerning the entire suit
property. The question arose as to
whether the agreement be enforced
against the vendor-husband to the
extent of his half share in the
property. This Court relying on the
decision in Kartar Singh Vs.
Harjinder Singh [(1990) 3 SCC 517]
and the decision in A. Abdul Rashid
Khan's case (supra) held that the
vendee is not entitled to seek
specific performance of the
agreement to the extent of half
share of the vendor's wife and there
is no impediment for enforcement of
the agreement against the vendor-
husband to the extent of his half
share in the property.”
3) Kammana Sambamurthy (D) By Lrs. Versus
Kalipatnapu Atchutamma (D) reported in 2011
(11) SCC 153, wherein it is held as under:
“19. The crucial question in the
case is whether the agreement could
be enforced against the vendor to
the extent of his half share in the
property. The terms of the agreement
show that the vendor represented to
the vendee that he was absolute
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owner of the property that fell to
his share in the partition effected
with his brothers and he did not
have any male child. The vendor
assured the vendee that excepting
him none has got any right over the
property and he would obtain the
witness signatures of his daughters
and get their voluntary consent
letters in his favour. It is clear
from the evidence that the vendee
had no knowledge that vendor's wife
has half share in the property which
devolved upon her on the death of
her son intestate.
21. Section 12 prohibits specific
performance of a part of a contract
except in the circumstances under
sub-sections (2), (3) and (4). The
circumstances mentioned in these
sub-sections are exhaustive. Is
Section 12 attracted in the facts
and circumstances of the present
case- We do not think so. The
present case is not a case of the
performance of a part of the
contract but the whole of the
contract insofar as the vendor is
concerned since he had agreed to
sell the property in its entirety
but it later turned out that vendor
had only half share in the property
and his wife held the remaining
half. The agreement is binding on
the vendor as it is without being
fractured. As regards him, there is
neither segregation or separation of
contract nor creation of a new
contract. In Kartar Singh V/s.
Harjinder Singh & Ors.1, this Court
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was concerned with a case where
vendor--brother and a sister had
each half share in the suit
properties. The agreement for the
sale was executed by the brother
concerning the suit properties in
which the sister had half share. The
sister was not executant to the
agreement; rather she refused to
accept the agreement. The question
for consideration before this Court
was whether agreement could be
enforced against the vendor--brother
to the extent of his half share.
This Court considered Section 12 and
held as under :
"5. We are, therefore, of the
view that this is not a case
which is covered by Section 12
of the Act. It is clear from
Section 12 that it relates to
the specific performance of a
part of a contract. The present
is not a case of the performance
of a part of the contract but of
the whole of the contract so far
as the contracting party,
namely, the respondent is
concerned. Under the agreement,
he had contracted to sell whole
of his property. The two
contracts, viz. for the sale of
his share and of his sister's
share were separate and were
severable from each other
although they were incorporated
in one agreement. In fact, there
was no contract between the
appellant and the respondent's
sister and the only valid
contract was with respondent in
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respect of his share in the
property.
6. As regards the difficulty
pointed out by the High Court,
namely, that the decree of
specific performance cannot be
granted since the property will
have to be partitioned, we are
of the view that this is not a
legal difficulty. Whenever a
share in the property is sold
the vendee has a right to apply
for the partition of the
property and get the share
demarcated. We also do not see
any difficulty in granting
specific performance merely
because the properties are
scattered at different places.
There is no law that the
properties to be sold must be
situated at one place. As
regards the apportionment of
consideration, since admittedly
the appellant and respondent's
sister each have half share in
the properties, the
consideration can easily be
reduced by 50 per cent which is
what the first appellate court
has rightly done."
22. Kartar Singh has been followed
by this Court in Manzoor Ahmed
Magray V/s. Ghulam Hassan Aram &
Ors. In Manzoor Ahmed Magray, this
Court considered the matter in the
context of Section 15 of J & K
Specific Relief Act, 1977 which is
pari materia to Section 12 of
Specific Relief Act, 1963 . This
Court said :
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".......Hence, there is no bar
for passing the decree for
specific relief with regard to
1/3rd or 2/3rds share owned by
the contracting party for which
he can execute the sale deed.
For the share of Ghulam Rasool
(brother of Defendant 1)
admittedly, no decree is passed
by the High Court. Dealing with
the similar contention where
agreement was for sale of
property belonging to a brother
and sister each having a half
share, the Court in Kartar Singh
V/s. Harjinder Singh held that
when the absentee vendor, for
some reason or the other refused
to accept the agreement, there
is no reason why the agreement
should not be enforced against
the vendor who had signed and
his property is identifiable by
specific share. The Court
further held that such case is
not covered by Section 12 of the
Specific Relief Act, 1963 which
relates to specific performance
of a part of a contract. Such
type of case would be the case
of specific performance of the
whole of the contract so far as
the contracting party is
concerned. Further, whenever a
share in the property is sold
the vendee has the right to
apply for the partition of the
property and get the share
demarcated. Hence there would
not be any difficulty in
granting specific performance of
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the contract to the extent to
which it is binding between the
parties."
23. In the case of A. Abdul Rashid
Khan (Dead) & Ors. V/s. P.A.K.A.
Shahul Hamid & Ors.3, this Court
held that even where any property is
held jointly and once any party to
the contract has agreed to sell such
joint property by agreement, then,
even if the other co-sharer has not
joined, at least to the extent of
his share, the party to the contract
is bound to execute the sale deed.
In that case, the suit property
originally belonged to one Aziz
Khan. On his death, his heirs under
the Muslim law--nine sons and two
daughters inherited that property.
The sons agreed to sell that
property to the first respondent
therein. However, some dispute arose
between the parties and that
necessitated the first respondent
therein to file the suit for
specific performance in which the
executants of the agreement as well
as the two daughters of Aziz Khan
were impleaded as defendants. It was
admitted case that the daughters of
Aziz Khan had not joined in the
agreement of sale. The trial court
dismissed the suit by holding that
the agreement was indivisible and
could only be enforced if the
daughters of Aziz Khan agreed. The
first respondent therein preferred
an appeal before the High Court
against the judgment and decree of
the trial court. The High Court held
that he had not pleaded and proved
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that the daughters of Aziz Khan had
agreed to sell the suit property and
hence, it cannot be held that the
said agreement was by all the heirs
of Aziz Khan. The two daughters of
Aziz Khan were held not bound by the
agreement. However, the High Court
held that insofar as the executants
of the agreement (sons of Aziz Khan)
were concerned they were bound by it
and valid and enforceable contract
existed between the first respondent
and the sons of Aziz Khan. The High
Court, accordingly, granted decree
for specific performance to the
extent of 5/6th shares which Aziz
Khan's sons had in the property.
This Court affirmed the decree of
the High Court and it was held that
plaintiff's suit for specific
performance to the extent of 5/6th
share was rightly decreed by the
High Court warranting no
interference. While holding so, this
Court relied upon earlier decision
in the case of Manzoor Ahmed Magray.
24. In view of the above decisions
of this Court and the facts and
circumstances which have already
been noticed by us, in our opinion,
there is no impediment for
enforcement of the agreement against
the vendor to the extent of his half
share in the property. However, Mr.
A.T.M. Sampath, learned counsel for
the vendor's wife placed great
reliance upon HPA International V/s.
Bhagwandas Fateh Chand Daswani &
Ors., (2004) 6 SCC 537 and,
particularly, the following
paragraphs of the report.
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"67. If the vendee intended to
seek conveyance separately of
the life interest of the vendor,
the earliest opportunity for him
was when he had received notice
dated 11-9-1979 sent through the
lawyer by the vendor cancelling
the contract. Assuming that at
that time he could not opt for
lesser relief as the suit for
sanction was pending, he could
have, in any case, opted for
conveyance of life interest of
the vendor soon after he came to
know of the negotiations for
sale with Bob Daswani, which
took place in the presence of
one of the partners of the
plaintiff vendee. Even after
deriving the knowledge of the
execution of the sale deed dated
29- 12-1979 Ext. D-1, the option
to obtain lesser relief of
transfer of life interest was
not exercised. It was exercised
as late as on 25-11-1986 by
filing an affidavit and at the
time when pleadings of the
parties were completed and the
joint trial in the two suits had
already commenced. During long
pendency of the suits between
1979 to 1986, the parties
interested in the property
changed their positions. The
vendor by executing a registered
sale deed in favour of the
subsequent vendee got his public
dues paid to relieve the
pressure on the property and
obtained market price of the
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property. After obtaining
possession of the property
pursuant to the sale deed, the
subsequent vendee has raised
construction and inducted
tenants. Accepting the legal
stand based on Sections 90, 91
and 92 of the Indian Trusts Act
that the subsequent vendee,
being a purchaser with knowledge
of prior agreement, is holding
the property as a trustee for
the benefit of the prior vendee,
the vendor, who changed his
position by effecting a
subsequent sale cannot be
compelled to convey his life
interest when such lesser relief
was not claimed at the earliest
opportunity and the terms of the
contract did not contemplate
transfer of life interest
alone."
98. The above argument has no
merit and the aforesaid decision
is hardly of any help to the
vendee. This is not a case where
the vendor had only right of
spes successionis and after
execution of agreement of sale,
he subsequently acquired full
interest in the property to be
held bound by Section 43 of the
Transfer of Property Act. In the
case before us, the reversioners
were not parties to the
agreement of sale. When in the
suit for sanction to transfer
their interest they were made
parties and were noticed, they
expressly objected to the
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proposed transfer. No principle
of estoppel or provisions of
Section 43 of the Transfer of
Property Act can, therefore,
operate against them. So far as
the subsequent vendee is
concerned, in the course of
suit, he was pushed to a
position in which he could not
take a stand that he had no
knowledge of the prior agreement
with the vendee but he has
separately purchased life
interest from the vendor and
obtained separate release deeds,
on payment of consideration,
from the reversioners. The
reversioners being not parties
to the sale agreement, Ext. P-1
entered into with the vendee,
the latter could not enforce the
contract, Ext. P-1 against the
former."
It is sufficient to say that the
agreement of sale and the facts
which their Lordships had to
consider in the case of HPA
International were in many respects
different from the agreement in the
present case. In that case vide
agreement of sale (Exhibit P1)
therein, full interest in the
property, i.e. life interest of the
vendor and spes successionis of
reversioners with sanction of the
court was agreed to be sold. The
reversioners were not parties to the
sale agreement that was entered with
the vendee therein. The parties were
conscious that the vendor had only
life interest in the property and he
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could not convey more than his own
interest. The court found that
vendee entered into a speculative
deal for obtaining full interest in
the property depending upon the
sanction to be granted by the court.
In the backdrop of these facts, this
Court observed in paragraphs 68, 69
and 70 of the report thus :
"68. On duly appreciating the
evidence on record, construing
specific terms of the contract
and considering the conduct of
the parties, we have arrived at
the conclusion that the
rescission of the contract, due
to non-grant of sanction by the
Court within two years after
execution of the contract and
filing of the suit for sanction,
was not an act of breach of
contract on the part of the
vendor to justify grant of
relief of specific performance
of the contract to the prior
vendee.
69. We are also of the view that
the plaintiff vendee, by his own
act in the pending suits, was
responsible for rendering the
suit for sanction as
infructuous. He was guilty of
lapse in not seeking conveyance
of life interest of the vendor
at the earliest opportunity when
notice of rescission of the
contract was received by him and
later when he derived the
knowledge of execution of
registered sale deed in favour
of the subsequent vendee. The
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option was exercised
conditionally in the midst of
the joint trial of the two
suits.
70. There was one integrated and
indivisible contract by the
vendor to convey full interest
in the property i.e. his own
life interest and the interest
of the reversioners with
sanction of the Court. As the
Court had not granted the
sanction, the contract could not
be specifically enforced. The
lesser relief of transfer of
life interest was not claimed
within a reasonable time after
the vendor had intimated that
the contract, as agreed for full
interest, was not possible of
performance. We find that
neither equity nor law is in
favour of the plaintiff vendee."
The Court further observed in
paragraph 100 of the report as
follows :
"100. In the case before us, we
have not found that the vendor
was guilty of rendering the suit
for sanction infructuous. It did
terminate the contract pending
the suit for sanction but never
withdrew that suit. The vendee
himself prosecuted it and
rendered it infructuous by his
own filing of an affidavit
giving up his claim for the
interest of reversioners. In
such a situation where the
vendor was not in any manner
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guilty of not obtaining the
sanction and the clause of the
contract requiring the Court's
sanction for conveyance of full
interest, being for the benefit
of both the parties, the
contract had been rendered
unenforceable with the dismissal
of the sanction suit."
HPA International, thus, have no
considerable bearing on the case in
hand.”
4) Van Vibhag Karamchari Griha Nirman Sahkari
Sanstha Maryadit (Regd.) Versus Ramesh
Chander reported in 2011 (0) AIR(SC) 41,
wherein it is held as under:
“31. In fact, a suit for Specific
Performance could have been easily
filed subject to the provision of
Section 20 of the Ceiling Act.
Similar questions came up for
consideration before a Full Bench of
Gujarat High Court in the case of
Shah Jitendra Nanalal V/s. Patel
Lallubhai Ishverbhai [AIR 1984 Guj
145]. The Full Bench held that a
suit for Specific Performance could
be filed despite the provisions of
the Ceiling Act. A suit for Specific
Performance in respect of vacant
land in excess of ceiling limit can
be filed and a conditional decree
can be passed for Specific
Performance, subject to exemption
being obtained under Section 20 of
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the Act. (Paras 11- 13)
32. We are in respectful agreement
with the views of the Full Bench in
the abovementioned decision and the
principles decided therein are
attracted here.”
42. Referring to the above decisions, it was
submitted that out of total consideration as
agreed upon between the parties at the time
of execution of agreement to sale for
purchase of the suit land at the rate of
Rs.1,45,000/- per vigha, the plaintiffs have
already paid Rs.8,90,000/- out of total
consideration of Rs.20,30,000/- i.e. more
than 43% of the total amount of sale
consideration which clearly shows the
readiness and willingness of the plaintiffs
to perform their part of agreement to sale.
43. It was submitted that the Trial Court
has wrongly placed reliance on the photocopy
of document at temporary Exh.130 dated
05.02.1991 whereby amount of Rs.2,00,000/-
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was paid back to the plaintiffs by the
defendant. It was submitted that no original
proof or document was produced before the
trial Court to show the same and therefore,
the trial Court could not have referred to
and relied upon such documents.
44. It was further submitted that the
defendant in caveat application has admitted
the fact of execution of agreement to sale
between the parties and even if the document
at temporary Exh.130 is to be considered
without the original being produced alleging
the returning of amount by the defendant to
the plaintiffs, it clearly shows that
consideration was paid by the plaintiffs to
the defendant, part of which is alleged to
have been returned. It was therefore,
submitted that the trial Court has committed
an error in coming to the conclusion that
agreement to sale is not proved by the
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plaintiffs.
45. Learned Senior Advocate Mr.Mehul Shah
submitted that the trial Court has answered
issue nos. 2 and 3 in the affirmative to the
effect that there was an execution of
agreement to sale between the parties on
26.09.1990 for a consideration of Rs.
1,45,000/- per vigha for the suit land and as
such, the trial Court could not have answered
the same issue by giving two separate
findings when the signature is proved at Exh.
108 and the trial Court has held that the
defendant has executed the sale deed and on
the other hand, the trial Court has arrived
at finding that payment of part consideration
by the plaintiffs is not proved. It was
therefore, submitted that in view of settled
legal position unless and until when contrary
is proved, the Court shall presume in favour
of the plaintiffs and breach of contract to
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transfer immovable property cannot be
adequately removed by compensation in terms
of money.
46. It was submitted that decree of specific
performance ought to have been passed in
favour of the plaintiff as per the provisions
of section 10 of the Specific Relief Act,
1963.
47. It was submitted that the trial Court
has wrongly placed reliance on section 17 of
the Specific Relief Act which provides that a
contract to sell or let out any immovable
property cannot be specifically enforced in
favour of a vendor or lessor who knowing not
to have any title to the property, has
contracted to sell or let the property or who
though entered into the contract believing
that he had a good title to the property,
cannot at the time fixed by the parties or by
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the Court for the completion of the sale or
letting, give the purchaser or lessee a title
free from reasonable doubt. It was submitted
that agreement to sale was for two pieces of
suit land and the defendant has not taken any
defence regarding his efforts for making a
clear title and ownership of the suit land.
Submissions of the Respondent-defendant
48. On the other hand, learned Senior
Advocate Mr. Deven Parikh submitted that the
plaintiffs have made averment in the plaint
that a cash receipt dated 24.09.1990
(Exh.107) was executed in his favour.
However, same was denied by the defendant in
the written statement and also the signature
on such cash receipt is denied and the
plaintiffs have failed to prove these
documents through any oral or written
evidence and in the cross examination also
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admitted that the signature of the defendant
on the cash receipt (Exh.107) and agreement
to sale dated 26.06.1990 (Exh.108) were
different. It was further submitted that name
of the person in whose favour cash receipt
was issued was not mentioned. Hence such cash
receipt is concocted document as the
defendant has never received Rs. 1,90,000/-
as alleged by the plaintiffs.
49. It was submitted that though the
agreement to sale dated 26.09.1990 was
executed by the defendant and was admitted in
the written statement as well as caveat filed
by the defendant, however terms and
conditions of the execution of the sale deed
was for 15 months from the date of execution
of the agreement to sale which was not
adhered to by the plaintiffs and no steps
were taken to perform the part of the
agreement to sale by the plaintiffs and after
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9 years on 27.11.1997 the plaintiffs have
issued a public notice (Exh.106) with no
particulars such as name of owners of the
land in question or reference to the
agreement to sale dated 26.09.1990.
50. It was further submitted that the Trial
Court has therefore, rightly compared the
signatures of the defendant in Exh.107 and
Exh.109 and has come to just and proper
conclusion that signatures are different so
as to hold that the plaintiffs have failed to
prove Exh.109 for extension of time of 6
years for execution of the sale deed.
51. It was submitted that main contention of
the plaintiffs that agreement to sale dated
26.09.1990 (Exh.108) was further extended by
6 years by subsequent agreement on 21.04.1991
(Exh.109) has been denied by the defendant
and the plaintiffs have failed to prove the
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same through oral or documentary evidence. It
was submitted that witness of the plaintiffs
Mansukh Chhaganbhai Tank (Exh.103), (Exh.104)
(Exh.105) who according to the plaintiffs had
signed as witness in such agreement for
extension and who was alleged to have been
present at the time of execution of the
agreement for extension, has not supported
the case of the plaintiffs and the plaintiffs
has not sought permission to declare him
hostile and accordingly, he was not even
reexamined by the plaintiffs. It was
submitted that the plaintiffs in his cross
examination at Exh.115 has also denied
execution of any other document except
agreement to sale dated 26.09.1990 (Exh.108)
and therefore, the contention of the
plaintiffs regarding subsequent execution of
agreement for extension of time dated
21.04.1991 is not tenable. It was submitted
that the plaintiffs have failed to prove that
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the amount of Rs. 5,00,000/- was paid to the
defendant on 21.04.1991.
52. It was submitted by learned Senior
Advocate Mr. Parikh that reason assigned by
the plaintiffs for execution of the agreement
for extension of time on 21.04.1991 that the
loan amount was due on property in question
and hence the amount of Rs.5,00,000/- was
paid to clear the title of the property, is
also incorrect as the plaintiffs before
creating such concocted document to bring the
suit within the limitation have failed to
check the revenue entries of the property in
question because as per Entry No.2113 dated
04.02.1991 (Exh.98), no dues on the property
in question at the time of alleged execution
of the agreement to sale was outstanding. It
was therefore, submitted that the averments
made in the pleadings as well as Exh.109
agreement for extension are concocted
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documents. It was therefore, submitted that
the Trial Court has rightly come to the
conclusion that the plaintiffs have failed to
prove Exh.109 agreement for extension of
time.
53. It was further submitted that the suit
property was re-conveyed to the defendant by
separate agreement dated 05.02.1991 (Exh.130)
and signature on the same was admitted by
both the plaintiffs in the cross examination
at Exh.76 and Exh.115 respectively and the
same is also admitted by the witness of the
plaintiffs namely Mansukh Chhaganbhai Tank
(Exh.103) in his cross examination. It was
therefore, submitted that the suit was filed
only on basis of agreement for extension
(Exh.109) concocted by the plaintiffs.
54. It was submitted that the plaintiffs
have failed to bring on record any document
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which suggest that the plaintiffs were ready
and willing and to perform part of their
agreement which was basic requirement before
decree for specific performance can be
passed. It was therefore, submitted that
appeal being devoid of any merit is liable to
be dismissed.
55. Learned Senior Counsel Mr. Parikh for
the respondent placed reliance on decision in
case of U.N. Krishnamurthy (Since deceased)
thr. Lrs. v. A.M. Krishnamurthy (Judgment
dated July, 12, 2022 rendered in Civil
Appeal No.4703 of 2022 arising out of SLP(C)
No.19463 of 2018) to submit that it is well
settled that in a suit for Specific
Performance of an agreement, it is for the
plaintiff to prove his readiness and
willingness to perform his obligations under
the agreement. It was pointed out that where
a certain amount has been paid in advance and
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the balance is required to be paid within a
stipulated time, it is for the plaintiff to
show that he was in a position to pay the
balance money and the plaintiff has to prove
that he has the money or has alternatively
made necessary arrangements to get the money
for payment of consideration. The Hon’ble
Apex Court has held as under:
“21. It is well settled that, in a
suit for Specific Performance of an
agreement, it is for the Plaintiff
to prove his readiness and
willingness to perform his
obligations under the agreement.
Where a certain amount has been paid
in advance and the balance is
required to be paid within a
stipulated time, it is for the
Plaintiff to show that he was in a
position to pay the balance money.
The Plaintiff has to prove that he
has the money or has alternatively
made necessary arrangements to get
the money. In this case, the
Original Defendant/Appellants have
all along contended that the
Plaintiff Respondent neither offered
to pay nor was in a position to pay
the balance consideration of
Rs.15,00,000/-.
xxx
25. To aver and prove readiness and
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willingness to perform an obligation
to pay money, in terms of a
contract, the plaintiff would have
to make specific statements in the
plaint and adduce evidence to show
availability of funds to make
payment in terms of the contract in
time. In other words, the plaintiff
would have to plead that the
plaintiff had sufficient funds or
was in a position to raise funds in
time to discharge his obligation
under the contract. If the plaintiff
does not have sufficient funds with
him to discharge his obligations in
terms of a contract, which requires
payment of money, the plaintiff
would have to specifically plead how
the funds would be available to him.
To cite an example, the plaintiff
may aver and prove, by adducing
evidence, an arrangement with a
financier for disbursement of
adequate funds for timely compliance
with the terms and conditions of a
contract involving payment of
money.”
56. It was therefore, submitted that in
facts of the case, the plaintiffs have failed
to prove that they were ready and willing to
perform their part of contract by payment of
balance amount of sale consideration to the
defendant within the time period of 15 months
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from the date of execution of agreement to
sale.
57. Learned Senior Advocate Mr. Parikh also
placed reliance upon the decision of Hon’ble
Supreme Court in case of Shehbagam and ors.v.
K.K. Rathinavel (Judgment dated January 20,
2022 rendered in Civil Appeal No.150 of
2022), wherein Hon’ble Apex Court after
considering the settled legal position has
held as under:
“29 We shall now advert to the
respondent’s conduct throughout the
sale transaction. The respondent has
failed to provide any documents or
communication which would indicate
that he called upon the appellants
to perform their obligations or
discharge the mortgage within the
time period stipulated in the
contract. Even after the expiry of
the six months, the respondent did
not reach out to the appellants. It
is only in response to the
appellant’s legal notice that the
respondent demanded performance of
their obligations. Merely averring
that he was waiting with the balance
consideration and believed that the
appellants would clear the
encumbrance is insufficient to prove
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that the respondent-plaintiff was
willing to perform his obligations
under the contract.
xxx
31 The “readiness” of the respondent
to perform his obligations refers to
whether he was financially capable
of paying the balance consideration.
Both thetrial court and the first
appellate court have observed that
the respondent was ready to pay the
balance consideration as (i) he was
paying income tax since 1988 and
(ii) his bank passbooks indicate
that he had sufficient funds. The
payment of income tax by itself does
not show that the respondent had
sufficient resources to pay for the
suit property. Moreover, the bank
passbooks submitted in evidence by
the respondent were for accounts
opened on 11 March 1992 and 22 July
1994, that is, after the expiry of
the period written in the contract.
The first appellate court despite
noting this, has chosen to hold that
the respondent was ready and willing
to perform the agreement. The
respondent however did not lead any
evidence to indicate that in the
year 1990 he had the money to pay
the balance consideration. The first
appellate court shifted the burden
on the appellants to prove that the
respondent-plaintiff was incapable
of paying the balance consideration.
It is an established principle of
law that the plaintiff must prove
that he is ready and willing to
perform the contract. The burden
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lies on the plaintiff. The
respondent has not led any evidence
that he was ready or willing to
perform his obligations under the
agreement.
32. Even assuming that the
respondent was willing to perform
his obligations under the contract,
we must decide whether it would be
appropriate to direct the specific
performance of the contract in this
case. In Zarina Siddiqui v. A.
Ramalingam [(2015) 1 SCC 705], a
two-judge Bench of this Court while
dealing with a suit for specific
performance of a contract regarding
the sale of immovable property
observed that the remedy for
specific performance is an equitable
remedy and Section 20 of the
Specific Relief Act confers a
discretion on the Court. The Court
held:
“24. It is well settled that remedy
for specific performance is an
equitable remedy. The court while
granting decree of specific
performance exercises its
discretionary jurisdiction. Section
20 of the Specific Relief Act
specifically provides that the
Court's discretion to grant decree
of specific performance is
discretionary but not arbitrary.
Discretion must be exercised in
accordance with sound and reasonable
judicial principles.”
xxx
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36. True enough, generally speaking,
time is not of the essence in an
agreement for the sale of immoveable
property. In deciding whether to
grant the remedy of specific
performance, specifically in suits
relating to sale of immovable
property, the courts must be
cognizant of the conduct of the
parties, the escalation of the price
of the suit property, and whether
one party will unfairly benefit from
the decree. The remedy provided must
not cause injustice to a party,
specifically when they are not at
fault. In the present case, three
decades have passed since the
agreement to sell was entered into
between the parties. The price of
the suit property would undoubtedly
have escalated. Given the blemished
conduct of the respondent-plaintiff
in indicating his willingness to
perform the contract, we decline in
any event to grant the remedy of
specific performance of the
contract. However, we order a refund
of the consideration together with
interest at 6% per annum.”
58. Reliance was also placed on the decision
in case of Sukhwinder Singh v. Jagroop Singh
& anr (Judgment dated January 28, 2020
rendered in Civil Appeal No.760 of 2020)
wherein it is held as under:
“9. The suit being the one for
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specific performance of the contract
on payment of the balance sale
consideration, the readiness and
willingness was required to be
proved by the plaintiff and was to
be considered by the Courts below as
a basic requirement if a decree for
specific performance is to be
granted. In the instant case though
the defendant No.2 had denied the
agreement as also the receipt of the
earnest money, the same would not be
of consequence as the agreement
claimed by the plaintiff is with the
defendant No.1 and the contention of
the defendant No.2 to deny the same
is without personal knowledge on
that aspect. However, even in the
absence of the defence put forth,
the plaintiff was required to prove
his readiness and willingness and
that aspect of the matter was to be
considered by the Courts below. In
the present case though the
plaintiff examined himself as PW1,
as also PW2 and PW3, the document
writer, and the witness to the
agreement who stated with regard to
the execution of the agreement, the
evidence to prove the readiness and
willingness with regard to the
resources to pay the balance sale
consideration is insufficient. In
the absence of denial by the
defendant No.1, even if the payment
of Rs.69,500/ and the claim by the
plaintiff of having gone to the
office of Sub Registrar on
15.06.2004 is accepted, the fact as
to whether the plaintiff had
notified the defendant No.1 about he
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being ready with the balance sale
consideration and calling upon the
plaintiff to appear before the Sub-
Registrar and execute the Sale Deed
was required to be proved. From
among the documents produced and
marked as Exhibit P1 to P9 there is
no document to that effect, more
particularly to indicate the
availability of the balance sale
consideration as on 15.06.2004 and
as on the date of filing the suit.
Despite the same, merely based on
the oral testimony of PW1, the
Courts below have accepted the case
put forth by the plaintiff to be
ready and willing to complete the
transaction.”
Points for Determination:
1) Whether the Trial Court has correctly
held that the plaintiffs have failed to prove
that defendant had executed agreement to sell
14 Vigha of suit property to the plaintiffs
on 24.09.1990 and accepted the amount of
Rs.1,90,000/-?
2) Whether the Trial Court was justified in
arriving at a conclusion that signature of
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the defendant at Exh.107 and Exh.108 is
different?
3) Whether the Trial Court was justified in
holding that the plaintiffs have failed to
prove that the plaintiffs have executed the
additional document dated 21.04.1991 and have
paid further amount of Rs.5,00,000/- by way
of consideration by extending the time limit
to 6 years?
4) Whether the Trial Court was right in
holding that the plaintiffs were not ready
and wiling to perform their part of the
agreement to sale?
5) Whether the Trial Court was right in
holding that the plaintiffs have proved that
the defendant had no right, title or interest
over the suit land?
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6) Whether the Trial Court was justified in
holding that the defendant has proved that
agreement to sale dated 26.09.1990 was bogus
and false?
7) Whether the Trial Court was justified in
holding that Survey No.26/1 is a fragment
land and therefore, no decree of specific
performance can be granted in favour of the
plaintiffs?
8) Whether the Judgment and Decree of the
Trial Court suffer from any error of law or
fact?
9) Whether the appellants are entitled to the
relief sought in appeal?
Analysis
59. Having considered the submissions made
by the learned advocates of both sides and
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having perused the oral and documentary
evidence led before the Trial Court, it
emerges from the record that there was an
agreement to sale dated 26.09.1990 (Exh.108)
executed between the parties.
60. However, with regard to the averments
made in the plaint that acknowledgment
receipt was issued by the defendant on
24.09.1990(Exh.107) for an amount of
Rs.1,90,000/- towards sale consideration, the
Trial Court is justified in holding that the
same is not proved by the plaintiffs,
because, Dhirajlal Gordhanbhai Hadwani –
plaintiff no.2 in his cross examination at
Exh.77 has referred to the document dated
13.09.1990 which has been produced on record
wherein it is agreed between the parties to
give token money and execute an agreement to
sale which was thereafter executed on
26.09.1990. It is further deposed by him that
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no agreement was executed between 13.09.1990
and 26.09.1990. The plaintiffs have
therefore, failed to prove the execution of
acknowledgment receipt dated 24.09.1990 at
Exh.107.
61. There is also inconsistency in the
pleadings and documentary evidence led by the
plaintiffs regarding payment of part
consideration amounting to Rs.2,00,000/-
referred to in Exh.108 agreement to sale
dated 26.09.1990 and acknowledgment receipt
of Rs.1,90,000/- as the Trial Court has
rightly found that signatures of the
defendant on both the documents are
different. The plaintiffs have also failed to
rebut the same in cross examination of the
defendant (Exh.125) as no question is put
with regard to the difference in signature
and therefore, the Trial Court has rightly
come to the conclusion that there is a
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difference in signature in both the
documents. Moreover, the plaintiff no.1
Jinabhai Kapadiya has also not stated that on
which date he had paid Rs. 1,90,000/- to the
defendant Hijibhai in spite of mentioning the
fact of payment in his examination-in-chief
at Exh.115. Even the witness of the defendant
Kantilal Mahidas brother of the defendant has
also denied that any consent was given for
sale of land situated at Revenue Survey
No.26/1. In his cross examination, the said
witness has reiterated that no consent was
given for sale of land of Revenue Survey
No.26/1 which is a fragment land and the said
land was never mortgaged.
62. Learned Trial Court has also rightly
appreciated Exh.108 which contains no
reference to payment of Rs.1,90,000/- nor the
plaintiffs in cross examination have stated
what amount was paid by them as reflected in
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agreement to sale (Exh.108). There is no
mention as to how much amount was paid by
which plaintiff to the defendant in Exh.108
agreement to sale. Therefore, the Trial Court
was justified in partly affirming with regard
to extension of agreement to sale as it was
admitted by the defendant in his affidavit in
chief at Exh.125 that agreement at Exh.108
bears his signature and that sale deed was to
be executed within 15 months.
63. With regard to the extension agreement
dated 21.04.1991 (Exh.109) and further
payment of Rs.5,00,000/- by the plaintiffs to
the defendant and extension of time limit
upto 6 years is concerned, the Trial Court
has on comparison of the signature of the
defendant on document at Exh.109 with the
signature at document at Exh.107 and Exh.108
rightly held that the defendant has denied
his signature on Exh.109 which is not
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rebutted by the plaintiffs during the cross
examination of the defendant.
64. It also appears from the pleadings and
perusal of the documents placed on record
that in order to bridge the gap between the
execution of the agreement to sale on
26.09.1990 and filing of the suit in 1999,
the plaintiffs have created the writing at
Exh.109 without proving the same by leading
documentary and oral evidence. The plaintiffs
have tried to show continuation of
transaction till the suit was filed as no
prudent person would agree for extension of
six years of time to execute the sale deed
and making further payment of Rs.5,00,000/-
without possession of land.
65. It also appears that the defendant has
agreed to sell the property to a third party
for which a separate suit is also pending
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before the trial court being Special Civil
Suit No.108 of 2010, wherein the plaintiffs
are arraigned as defendants.
66. It appears that the plaintiffs have
filed suit after one year in the year 1999
from the date of issuing public notice in
Sandesh daily newspaper in 1997.
67. The Trial Court is also justified in
arriving at a conclusion that as per the
tentative Exh.130, the plaintiffs have
accepted Rs. 2,10,000/- from the defendant on
05.02.1991 for re-conveying the suit land
which was not clearly denied by the
plaintiffs and signature on the tentative
Exh.130- Mark 14/2 is admitted in the cross
examination. Even in cross examination of the
plaintiff at Exh.77, it is admitted that
plaintiffs did not send any draft or cheque
pertaining to the balance sale consideration
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during 15 months period from the date of
agreement to sale and no amount was paid
towards sale consideration during the
pendency of the suit. The Trial Court has
therefore, rightly come to the conclusion
that plaintiffs were not ready and willing to
perform their part of the contract. The Trial
Court has also considered the fact that there
was a charge of State Bank of Saurashtra on
the suit land which was cleared by the
defendant on 06.12.1990 and thereafter Entry
No. 2113 (Exh.98) was mutated in revenue
record which was corroborated by the witness
of the defendant- Kantilal, brother of the
defendant at Exh.133 and even in cross
examination it was reiterated that land
bearing Survey No.25 and 26/1 are adjacent to
each other and since land of survey no.26/1
is fragment land, same were not partitioned
between the brothers and no consent to sell
said parcel of land was given by him to the
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defendant and therefore, no decree of
specific performance could have been granted
by the Trial Court as there was no clear
title in the name of the defendant.
68. It also appears that averment in the
plaint is silent about the date of execution
of the agreement to sale at Exh.108 and
though the defendant has admitted signature
on the agreement to sale at Exh.108, has not
denied the same and only the aspect of
payment of Rs.2,00,000/- by the plaintiffs
was not admitted.
69. On appreciation of evidence on record,
the Trial Court has therefore, rightly come
to the conclusion that the plaintiffs have
failed to prove satisfactorily the execution
of the agreement to sale at Exh.108.
70. In view of above analysis of the
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evidence on record, it would be necessary to
refer to the various decisions cited at bar
to find out whether same would be applicable
to the facts of the case or not.
71. Reliance was placed by learned advocate
for the plaintiffs on the decision of Hon’ble
Apex Court in cases of (i) P. Ramasubbamma
v. Vijayalakshmi (supra) (ii) K. Prakash v.
B.R. Sampath Kumar (iii) Gaddipati Divija
v. Pathuri Samrajyam (iv) Nadiminti
Suryanarayan Murthy (Dead) Through Legal
Representatives v. Kothurthi Krishna Bhaskara
Rao and others and (v) Motilal Jain v.
Ramdasi Devi (Smt) and others and reliance
placed on decisions with regard to “date” as
per Article 54 of the Limitation Act, 1963
would also not be applicable in facts of the
case as on appreciation of evidence on
record, the plaintiffs have failed to prove
the agreement to sale at Exh.108 and
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agreement for extension of time at Exh.109.
Admittedly, the suit is filed in 1999 for
specific performance of agreement to sale
dated 26.09.1990 on pretext of extension of
time for further six years by extension
agreement dated 21.04.1991. Therefore, the
Trial Court has rightly not raised the issue
with regard to limitation but on considering
the facts of the case, Trial Court has
rightly arrived at the conclusion that the
plaintiffs have failed to prove the execution
of the agreement to sale whereby time period
is extended for further six years by the
document at Exh.109.
72. It appears that there was a loan
transaction between the plaintiffs and the
defendant and as a security for repayment of
loan, defendant would have executed the
agreement to sale dated 26.09.1990. In such
circumstances, the Trial Court was justified
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in dismissing the suit for specific
performance as the plaintiffs was never ready
and willing to perform his part of the
contract within the stipulated period of 15
months. Moreover, the plaintiffs have also
failed to demonstrate as to payment of
Rs.1,90,000/- on the basis of acknowledgment
receipt at Exh.107 and payment of
Rs.5,00,000/- as stated in extension deed
dated 21.04.1991 at Exh.109 by any oral
rebuttal during the cross examination or by
leading any other corroborative evidence.
73. The Trial Court has therefore, rightly
dismissed the suit for specific performance
as no decree could have been passed in favour
of the plaintiffs for directing the
defendants to execute the sale deed of the
suit land on the basis of oral and
documentary evidence led by the plaintiffs
and the defendants during the course of
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trial.
74. Appeal therefore, being devoid of any
merit, is accordingly dismissed. No order as
to costs.
(BHARGAV D. KARIA, J)
(L. S. PIRZADA, J)
FURTHER ORDER
At this stage, learned Senior Advocate Mr.
Mehul Shah submitted that the interim relief of
maintaining status-quo qua the title and
possession in respect of the property in question
granted by the trial Court which has been
continued by this Court, may continue for some
time.
Considering the fact that the interim relief
of maintaining status-quo qua the title and
possession with respect to the property in
question is in operation since 1999, in the
interest of justice, same is ordered to be
continued for a further period of 8 weeks from
today.
(BHARGAV D. KARIA, J)
(L. S. PIRZADA, J)
RAGHUNATH R NAIR
Original copy of this order has been signed by the Hon'ble Judges.
Digitally signed by: RAGHUNATH RAVINDRANATHAN NAIR(HC00196), PRINCIPAL PRIVATE SECRETARY, at High Court of Gujarat on 12/06/2026 17:13:18
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