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

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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 9

th

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.

NO.

ISSUES FINDINGS

1.Whether the Plaintiff proves that

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?

In Negative

2.Whether the plaintiff proves that

the defendant executed agreement

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?

Partly in

affirmative

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3.Whether the plaintiff proves that

as per agreement the sale deed was

to be executed within 15 months

from date of agreement to sell?

In

affirmative

4.Whether the plaintiff proves that

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?

In negative

5.Whether the plaintiff is ready and

willing to perform his part of

agreement to sell dtd.25/9/90?

In negative

6.Whether the plaintiff proves that

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

interest over the suit property?

In negative

Partly in

affirmative

7.Whether the defendant proves that

plaintiff has made bogus and

forged agreement to sell?

In

affirmative

8.Whether the plaintiff's entitled

to get relief as prayed for?

In negative

9.Whether the plaintiff's is

entitled to get injunction as

prayed for?

In negative

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

of a contract

Three

years

The date fixed for the

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

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