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Bishwanath Mahto v. Srimati Janki Devi .
Factual and Procedural Background
The plaintiff filed a suit for specific performance of a contract of sale, alleging that the defendants orally agreed on 28.6.1959 to execute a sale deed transferring the suit land for Rs. 7,200, with Rs. 290 paid by the plaintiff and the balance Rs. 7,000 payable at execution. Despite repeated requests, the defendants delayed execution. A formal notice (Ext. 1) was sent, to which the defendants replied through a lawyer denying the plaintiff's claims and asserting the plaintiff was the defaulter. The suit was contested by two defendants, Smt. Nageshwari Kuer and Smt. Janki Devi, with the defendants claiming the consideration was Rs. 17,200 and denying receipt of Rs. 200. The trial court decreed the suit in favor of the plaintiff, holding the consideration at Rs. 7,200 plus Rs. 2,400 mortgage money, but the lower appellate court reversed this, finding the plaintiff not ready and willing to perform his part of the contract and dismissing the suit. The plaintiff appealed to this court in a second appeal.
Legal Issues Presented
- Whether the plaintiff was continuously ready and willing to perform the essential terms of the contract from the date of the contract until the hearing of the suit.
- Whether the plaintiff’s failure to prove part payment and his conduct affected his entitlement to specific performance.
- Whether the lower appellate court erred in dismissing the suit on the ground that the plaintiff was not ready and willing to perform his part of the contract.
Arguments of the Parties
Appellant's Arguments
- The defendants acted dishonestly by falsely claiming the consideration was inflated and supporting this with tainted evidence.
- The plaintiff was not guilty of serious misconduct and had deposited the entire amount of Rs. 7,200 in court after judgment.
- The plaintiff was ready and willing to pay the full consideration, as evidenced by the deposit.
- The court should exercise discretion in favor of the plaintiff despite his earlier cross-objection challenging part payment findings.
- Attempted to distinguish the judgment of this Court dated 9.4.1971 in S.A 703 of 1968 relied upon by the defendants.
Respondent's Arguments
The opinion does not contain a detailed account of the respondents' legal arguments beyond their denial of part payment and assertion that the plaintiff was the defaulter.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Ardeshir H. Mama v. Florn Sassoon (A.I.R 1928 Privy Council, 208) | Established the rule that a plaintiff must be continuously ready and willing to perform his part of the contract to obtain specific performance. | The court applied this principle to emphasize the necessity of readiness and willingness from contract formation to suit hearing. |
| Comathinayagain Pillai v. Palaniswami Nadar (A.I.R 1967 Supreme Court, 868) | Reiterated the requirement of continuous readiness and willingness by the plaintiff in specific performance suits. | Supported the court’s conclusion that the plaintiff was not ready and willing, leading to dismissal of the suit. |
| Tandra Venkata Subrahmanayam v. Vegesana Viswanadharaju (A.I.R 1963 Andhra Pradesh, 190) | Referenced by appellant regarding readiness and willingness, though the court noted it did not address the key point. | The court noted the precedent but found it not directly applicable to the readiness and willingness issue in this case. |
Court's Reasoning and Analysis
The court analyzed whether the plaintiff was continuously ready and willing to perform his contractual obligations, a fundamental prerequisite for specific performance under Clause (c) of Section 16 of the Specific Relief Act, 1963. It noted that the plaintiff falsely asserted part payment of Rs. 200 in the notice and plaint, but concurrently it was found he had not made any part payment. The plaintiff's readiness was limited to paying Rs. 7,000 instead of the full Rs. 7,200, indicating a lack of willingness to pay the entire consideration. The plaintiff's attempt to include Rs. 2,400 mortgage money within the Rs. 7,200 consideration further undermined his claim of readiness. The court relied on established precedents emphasizing that readiness and willingness must be real and continuous throughout the period from contract to suit hearing. Given the plaintiff’s inconsistent assertions and conduct, the court agreed with the lower appellate court that the plaintiff was not ready and willing to perform his part of the contract, warranting dismissal of the suit.
Holding and Implications
The appeal is dismissed.
The court held that the plaintiff was not continuously ready and willing to perform the terms of the contract essential to his claim for specific performance. Consequently, he was not entitled to a decree for specific performance. The decision results in dismissal of the suit and no decree in favor of the plaintiff. No new precedent was set beyond affirming the established principle that readiness and willingness must be proven strictly in specific performance actions.
Lalit Mohan Sharma, J.:— The plaintiff filed a suit for specific performance of a contract of sale alleging that the defendants agreed orally on 28.6.1959 to execute a sale deed in his favour transferring the suit land for a sum of Rs. 7200/- and that a sum of Rs. 290/- was paid by the plaintiff to the defendants. The parties agreed that the remaining amount of Rs. 7000/- would be paid at the time of the execution of the sale deed. The plaintiff repeatedly requested the defendants to execute the documents but they put off the matter. A notice was ultimately sent formally requesting the defendants in that regard and a copy thereof has been admitted in evidence as Ext. 1. The plaintiff received a reply from the defendants through a lawyer which is Ext. 1.a denying the allegation made in Ext. 1 and asserting that the defendants were ready to perform their part of the contract and it was the plaintiff who was the defaulter. The plaintiff's statement about payment of a sum of Rs. 200/- to the defendants was mechanically denied in Ext. 1.a. The plaintiff thereafter filed the suit out of which this second appeal arises.
2. There were originally two defendants; Smt. Nageshwari Kuer and Smt. Janki Devi, the widow and daughter of late Shri Lakshmi Prasad. The suit land admittedly belonged to them. During the pendency of the case before the lower appellate court, Smt. Nageshwari Kuer died leaving behind her daughter Smt. Janki Devi, the present respondent, as her sole heir and legal representative. The suit was contested in the trial court jointly by the two defendants. They pleaded that the consideration for the sale deed was fixed at Rs. 17200/- and it was the plaintiff who was avoiding to get the sale deed executed. Certain other pleas were also raised in the written statement and it does not appear essential to state them in view of the scope of the second appeal excepting one matter. The defendants denied to have received the sum of Rs. 200/- alleged by the plaintiff to have paid.
3. The trial court held that the consideration of the sale-deed was fixed at Rs. 7200/- only, but the case of the plaintiff about the payment of a sum of Rs. 200/- out of it was incorrect. The court also rejected the evidence led on behalf of the plaintiff for proving that a sum of Rs. 2400/- payable to a mortgagee of the land was included in the price of Rs. 7200/-. The court rejected the other pleas raised on behalf of the defence and decreed the suit holding that the plaintiff was entitled to get a sale deed executed in respect of the suit land by the defendants on payment of Rs. 7200/- in cash, besides Rs. 2400/- payable by the plaintiff to the prior mortgagee. Necessary directions were given in this regard.
4. The defendants appealed and the plaintiff-respondent filed a cross-objection challenging the finding of the trial court on the question of payment of the sum of Rs. 200/-. The lower appellate court agreed with the findings of the trial court that the price of the land had been fixed at Rs. 7200/- besides the mortgage money and that the plaintiff had not made any part payment. The court further held that the plaintiff has been changing his stand from time to time about the consideration and other details of the agreement and his conduct was not fair; and that in the circumstances of the case, the defendants could not be considered to be dishonest. Proceeding further, the court held that the plaintiff was not ready and willing to perform his part of the contract and he was, therefore, not entitled to a decree in the suit. The appeal was accordingly allowed and the suit and cross-objection dismissed. The plaintiff has now come to this court in second appeal.
5. Mr. Tarakant Jha, learned counsel for the appellant, contended that the court was utterly wrong in thinking that the conduct of the defendants was not dishonest. They falsely claimed that the consideration for the sale deed had been fixed at an inflated amount and attempted to prove it by leading tainted evidence. On the other hand, the plaintiff was not guilty of a serious misconduct. Although the plaintiff pleaded to have made a part payment of Rs. 200/- he deposited the entire amount of Rs. 7200/- in the trial court after the judgment was delivered. It is true that the plaintiff filed and pursued a cross-objection in the lower appellate court challenging the finding of the trial court on the question of part payment but the plaintiff was ready and willing to pay the entire amount of Rs. 7200/-, as is evident by the fact of deposit. Mr. Jha submitted that in those circumstances the court should exercise its discretion in favour of the plaintiff. He attempted to distinguish the judgment of this Court given on 9.4.1971 in S.A 703 of 1968, produced and relied upon by the defendants before the lower appellate court.
6. The question which has been canvassed before me is whether the suit should be dismissed on the ground that the plaintiff has failed to aver and prove that he has been always ready and willing to perform the essential terms of the contract which are to be performed by him. It has been a well established rule that a plaintiff in a suit for specific performance of an agreement must plead and prove that he was ready and willing to perform his part of the contract continuously between the contract and the date of hearing of the suit. A reference may be made in this, connection to the observations of the Privy Council in (1) Ardeshir H. Mama v. Florn Sassoon (A.I.R 1928 Privy Council, 208 at page 216) and by the Supreme Court in (2) Comathinayagain Pillai v. Palaniswami Nadar (A.I.R 1967 Supreme Court, 868, para 6). This rule, founded on the principle that he who seeks equity must do equity, has been insisted upon by Courts with great rigor and has been included expressly by the legislature in Clause (c) of Section 16 of the Specific Relief Act, 1963. The readiness and willingness of the plaintiff to carry out his parts of the agreement must refer to the real agreement and the correct terms and he cannot be relieved of the responsibility and escape the consequences by pleading falsely.
7. In the present case, it has been concurrently found that the plaintiff did not make any part payment and it follows that he should have been ready and willing to pay that total amount of Rs. 7200/- to the defendants. In the notice (Ext. 1) sent to the defendants before the filing of the suit, he falsely asserted in paragraph 3 to have paid a sum of Rs. 200/- and in paragraph 6 it was mentioned that the plaintiff was ready to pay the balance consideration money, that is, Rs. 7000/- only. He made a similar assertion in paragraph 12 of the plaint. The irresistible conclusion is that the plaintiff was ready and willing to pay a sum of Rs. 7000/- only as the consideration for the sale deed when he sent the notice and when he filed the suit. His false pretense of having made part payment cannot help him in this regard. During the trial, the unwillingness of the plaintiff to pay the stipulated consideration money was emphasised, when he took the stand that the consideration money of Rs. 7200/- included the amount of Rs. 2400/- payable to a prior mortgagee. The readiness of the plaintiff to perform his part of the agreement must continue from the date of the contract till the hearing of the suit and it is evident that the appellant was, in reality unwilling during this period. I, therefore, agree with the court below that the suit must be dismissed. The observations made in the penultimate paragraph of the judgment in S.A 703/68 appear to support my view and it is not necessary to consider whether the said decision can be distinguished as I have come to my conclusion against the appellant independently.
8. The appellant also relied upon the decision in (3) Tandra Venkata Subrahmanayam v. Vegesana Viswanadharaju (A.I.R 1963 Andhra Pradesh, 190) before the lower appellate court and also before me, but the learned single Judge who decided the case do not appear to have considered the point discussed above.
9. In the result, I hold that the plaintiff was not ready and willing to perform the terms of the agreement which are to be performed by him and he is, therefore, not entitled to a decree for specific performance. The appeal is accordingly dismissed with costs. Hearing fee is assessed at Rs. 100/-.
Appeal dismissed.
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