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Advocates
  • For the Appellant :- Shri Sandeep Punchhi
  • Advocate. For the Respondent :- Shri Ashok Singla
  • Advocate.
Judges
  • Hemant Gupta
Acts
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Citation Codes
Equivalent Citations
citation codes
Advocates
  • For the Appellant :- Shri Sandeep Punchhi
  • Advocate. For the Respondent :- Shri Ashok Singla
  • Advocate.
Judges
  • Hemant Gupta
Acts
See more information ...
Smart Summary

Summary of the Opinion (Hemant Gupta, J.)

Factual and Procedural Background

The appeal arises from a first appeal by the defendant against a trial court judgment and decree dated 9.3.1979, which decreed a suit for specific performance filed by the plaintiffs. Originally six plaintiffs filed suit based on two separate agreements to sell 1/2 share of a 59 kanals parcel of land: an agreement dated 3.12.1976 in favour of plaintiff Nos. 1 to 3, and an agreement dated 7.12.1976 in favour of plaintiff Nos. 4 to 6. Plaintiff Nos. 1 to 3 subsequently withdrew their claim based on 3.12.1976, leaving the suit confined to the agreement dated 7.12.1976.

The plaintiffs' case (filed 8.3.1977) was that the defendant agreed to sell 29 kanals 10 marlas (half of 59 kanals) for Rs. 34,000/-, received Rs. 19,100/- at the time of agreement, and that Rs. 12,900/- of the mortgage amount (of Rs. 29,800/-) would be redeemed by the plaintiffs; Rs. 2,000/- was to be paid at registration and the deed was to be executed within one month. Plaintiffs alleged breach by the defendant and filed suit for specific performance. The defendant denied execution of the agreement and receipt of consideration in his written statement dated 9.6.1977.

The trial court framed eight issues on 28.7.1978. At trial the plaintiffs produced the scribe (PW-1 Niranjan Singh) and two attesting witnesses (PW-2 Mehar Singh and PW-3 Narinder Nath) and PW-4 (guardian of a minor plaintiff). The defendant gave evidence himself as DW-1 and produced DW-2 (Gurcharan Singh) and DW-3 (Puran Singh). The trial court found for the plaintiffs; the defendant appealed. The appellate court (Hemant Gupta, J.) heard counsel and examined the record, thereafter dismissing the appeal.

Legal Issues Presented

  1. Whether the defendant had entered into agreement dated 2.12.1976 for sale of 1/2 share of the suit land in favour of plaintiff Nos. 1 to 3 for Rs. 34,000/- as alleged? (OPP)
  2. Whether the defendant had entered into agreement dated 7.12.1976, for the sale of 1/2 share of the suit land in favour of plaintiff Nos. 4 to 6, for Rs. 34,000/- as alleged? (OPP)
  3. Whether the plaintiffs have always been ready and willing to perform their part of the contract? (OPP)
  4. Whether the defendant have committed breach of agreement in dispute? (OPP)
  5. Whether the suit is bad for misjoinder of causes of action? (OPD)
  6. Whether the plaintiffs are entitled to specific performance of the disputed agreement? If so on what terms? (OPP)
  7. If issue No. 6 is not proved, to what amount, they are entitled in the alternative relief? (OPP)
  8. Relief.

Arguments of the Parties

Plaintiffs' (Respondents') Case and Arguments

  • The plaintiffs relied on the agreement dated 7.12.1976 (Exhibit P-2) for sale of half the land for Rs. 34,000/-, alleging that Rs. 19,100/- was paid at the time of the agreement.
  • They alleged that Rs. 12,900/- of the mortgage liability (of Rs. 29,800/-) was to be redeemed by them, leaving only Rs. 2,000/- to be paid at registration.
  • PWs (scribe and attesting witnesses) deposed that the agreement was read over to Santa Singh (the defendant) who thumb-marked it after understanding the contents, and that payment of Rs. 19,100/- was made in their presence.
  • Plaintiffs stated they had always been ready and willing to perform (including the minor remaining payment of Rs. 2,000/-), sought registration within the contractual period, filed suit for specific performance promptly (8.3.1977), and earlier filed a suit for injunction when the defendant intended to sell the property.

Defendant's (Appellant's) Case and Arguments

  • The defendant denied executing the agreement dated 7.12.1976 and denied receipt of any consideration; he denied breach and said he had not negotiated with anybody.
  • In evidence, the defendant produced witnesses (DW-2 and DW-3) who testified the defendant (Santa Singh) was present at the scribe's shop with Surjit Singh and was under the influence of liquor and therefore not in a state to execute/attest the agreement; those witnesses said they refused to attest for that reason.
  • The defendant challenged the plaintiffs' readiness and willingness to perform, and argued (on appeal) that because the plaintiffs had claimed alternative reliefs, decree of specific performance could not have been passed. He also raised an issue of misjoinder of causes of action (Issue No. 5).

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Manjunath Annadappa urf Shivappa Hanasi v. Tammanasa and others, 2003(10) SCC 390 (also reported 2003(2) RCR(Civil) 713 (SC)) The case was cited for the proposition that Forms 47 and 48 of the Schedule to the CPC prescribe procedure to prove readiness and willingness in suits for specific performance; a plaintiff must plead and prove readiness and willingness under Section 16(c) of the Specific Relief Act, and only in exceptional situations can readiness and willingness be inferred from the pleadings and record. The case also applied Section 20 (requirement of approaching court within a reasonable time) to deny specific performance where there was an undue delay. The appellate court held that Manjunath Annadappa did not support the appellant's case. It found that in the present record the plaintiffs had specifically pleaded and deposed to readiness and willingness, had paid substantial consideration leaving only Rs. 2,000/-, and had filed suit promptly (within two months of the date fixed for execution), so the statutory requirement was satisfied. The delay reasoning in Manjunath was distinguished on facts.

Court's Reasoning and Analysis

The court carried out an issue-wise appraisal of the evidence and applied ordinary principles of evaluation of documentary and oral evidence. The key steps in its reasoning were:

  1. Issues 1, 2 and 4 (existence of agreements and breach): The court observed that plaintiff Nos.1–3 had withdrawn their claim in respect of 3.12.1976, rendering Issue No.1 redundant for the appeal. For Issue No.2 (agreement dated 7.12.1976), the court accepted the testimony of PW-1 (scribe Niranjan Singh) that he scribed Exhibit P-2 at the instance of Santa Singh, recorded the consideration and the arrangement regarding the mortgage, and that Rs. 19,100/- was paid to Santa Singh in his presence. The attesting witnesses PW-2 and PW-3 corroborated this account, stating the agreement was read over to Santa Singh who thumb-marked it after understanding it. The court treated these witnesses as categorical and credible.
  2. The defendant's oral evidence was a denial of execution and receipt of consideration. However, the defence witnesses DW-2 and DW-3 introduced a new contention at trial — that Santa Singh was intoxicated at the scribe's shop and therefore could not have validly executed the document. The court noted this contention was not pleaded in the written statement nor raised in the statement on oath; it treated the testimony as an unpleaded new case and found that the statements of DW-2 and DW-3 in fact proved the presence of Santa Singh at the scribe's shop (thus supporting, rather than undermining, the plaintiffs' evidence of execution).
  3. On Issue No.3 (readiness and willingness): The court found the plaintiffs' pleading and evidence sufficient. It noted that only Rs. 2,000/- remained to be paid at the time of registration, a comparatively small sum, while Rs. 19,100/- had already been paid and Rs. 12,900/- had been earmarked for redemption of the mortgage. The court specifically relied on the plaintiffs' sworn statements, prompt filing of the suit (filed within two months of the date fixed for registering the deed), and antecedent conduct (a prior injunction suit) to conclude plaintiffs discharged the onus of proving readiness and willingness.
  4. On Issue No.5 (misjoinder of causes of action): The court noted nothing on record showed the suit was bad for misjoinder and that no argument had been advanced; it therefore decided this issue in favour of the plaintiffs.
  5. On Issues No.6 and 7 (entitlement to specific performance / alternative relief): The court rejected the appellant's argument that the plaintiffs' claim of alternative relief barred a decree for specific performance. It considered the authority relied upon by the appellant (Manjunath Annadappa) and explained that the factual basis there (significant delay such that Section 20 required approaching court within reasonable time) was absent in the present case. The court emphasized that plaintiffs had filed promptly and that there was no circumstance warranting interference with the trial court's discretionary exercise in favour of specific performance.
  6. Conclusion of analysis: The appellate court found no jurisdictional error in the trial court's findings, upheld the trial court's evaluation of witnesses and evidence, and therefore dismissed the appeal.

Holding and Implications

APPEAL DISMISSED; the decree of the trial court ordering specific performance is upheld.

Direct consequences and implications explicitly stated in the opinion:

  • The trial court's decree for specific performance in respect of the agreement dated 7.12.1976 is affirmed in favour of the plaintiffs and against the defendant.
  • The appeal is dismissed and there is no order as to costs.
  • The court found no error of jurisdiction in the trial court's findings and therefore did not disturb the discretionary decision to grant specific performance.

The opinion does not purport to lay down any new legal precedent beyond its application of existing principles; it distinguished the authority relied upon by the appellant on its facts.

Show full summary ...

    Santa Singh v. Binder Singh And Others

    Hemant Gupta, J. - The defendant is in first appeal aggrieved against the judgment and decree passed by the learned trial Court on 9.3.1979, whereby the suit for specific performance filed by the plaintiff-respondents, was decreed. 2. Originally, the suit was filed by six plaintiffs to seek specific performance of an agreement to sale dated 3.12.1976 entered in favour of plaintiff Nos. 1 to 3 in respect of 1/2 share of the land measuring 59 kanals in the sum of Rs. 34,000/-. Plaintiff Nos. 4 to 6 relied upon another agreement for sale dated 7.12.1976 of the balance 1/2 share of the said land measuring 59 kanals for the sum of Rs. 34,000/-. The plaintiff Nos. 1 to 3 have withdrawn their suit in respect of the agreement dated 3.12.1976, therefore, the present suit for specific performance is confined to the agreement dated 7.12.1976. 3. As per the case of the plaintiffs in a suit filed on 8.3.1977, the defendant agreed to sell land measuring 29 kanals 10 marlas i.e. 1/2 share of 59 kanals for Rs. 34,000/-. The defendant received Rs. 19,100/- at the time of execution of agreement. Since the land was mortgaged with one Jhanda for Rs. 29,800/-, the plaintiffs were to redeem the land after paying Rs. 12,900/- to Jhanda Singh. The balance consideration of Rs. 2,000/- was to be paid at the time of registration. The sale-deed was to be registered within one month of agreement and in case of default, the defendant was to pay Rs. 10,000/- as compensation. Since the defendant committed the breach of agreement, the plaintiffs filed the present suit for specific performance of agreement. The defendant denied the execution and receipt of any consideration of the agreement in his written statement dated 9.6.1977. It was further submitted that the defendant has not committed any breach of contract nor negotiated with anybody. On the basis of the pleadings of the parties, following issues were framed by the learned trial Court on 28.7.1978 :-

    "1. Whether the defendant had entered into agreement dated 2.12.1976 for sale of 1/2 share of the suit land in favour of plaintiff Nos. 1 to 3 for Rs. 34,000/- as alleged ? OPP 2. Whether the defendant had entered into agreement dated 7.12.1976, for the sale of 1/2 share of the suit land in favour of plaintiff Nos. 4 to 6, for Rs. 34,000/- as alleged ? OPP 3. Whether the plaintiffs have always been ready and willing to perform their part of the contract ? OPP 4. Whether the defendant have committed breach of agreement in dispute ? OPP 5. Whether the suit is bad for misjoinder of causes of action ? OPD 6. Whether the plaintiffs are entitled to specific performance of the disputed agreement ? If so on what terms ? OPP 7. If issue No. 6 is not proved, to what amount, they are entitled in the alternative relief ? OPP 8. Relief."
    4. In proof of the case pleaded by the plaintiffs, the plaintiffs examined PW-1 Niranjan Singh, the scribe of the agreement dated 7.12.1976 as well as PW-2 Mehar Singh and PW-3 Narinder Nath, the attesting witnesses of the agreement. The guardian of the minor plaintiff Surjit Singh appeared as PW-4. To controvert such evidence, the defendant appeared as his own witness as DW-1 and produced Gurcharan Singh as DW-2 and Puran Singh as DW-3, in support of his case that the agreement was not executed. 5. I have heard learned counsel for the parties at length and also gone through the evidence on record. The issue-wise finding is as under :- Issue Nos. 1, 2 and 4 : 6. Since plaintiff Nos. 1 to 3 have withdrawn their suit in respect of an agreement dated 3.12.1976, therefore, Issue No. 1 is redundant for the purposes of the present appeal. However, in respect of Issue No. 2, PW-1 Niranjan Singh, Scribe has appeared as witness and deposed that he has scribed agreement Exhibit P-2 at the instance of Santa Singh. He has deposed that the sale consideration was settled at Rs. 34,000/- and 1/2 of the mortgage amount i.e. Rs. 12,900/- was to be adjusted. He has further deposed that a sum of Rs. 19,100/- was paid to Santa Singh in his presence. The agreement was read over and Santa Singh has put his thumb impression after understanding the contents thereof. He has brought his register. Such entries in the register have been produced as Exhibit P1/B and P2/B. Similarly, PW-2 Mehar Singh and PW-3 Narinder Nath have supported the execution of the agreement. Both the witnesses are categorical to the effect that the sum of Rs. 19,100/- was paid to Santa Singh in their presence and that Santa Singh has thumb marked the documents after the same were read over to him and understanding the contents thereof. Though PW-4 Surjit Singh has stated that he cannot depose about the total amount paid at the time of agreement but he has stated that the agreement Exhibit P-2 was read over to Santa Singh and he thumb marked the same. 7. On the other hand, the defendant, while appearing his own witness denied the execution of the agreement and receipt of any consideration. But the witnesses produced by the defendant had made out a new case for the defendant, which was not even the case pleaded. As per DW-2 Gurcharan Singh, about 2-1/2 years ago, Santa Singh defendant was present at the shop of Niranjan Singh, deed writer, along with Surjit Singh, father of the plaintiff. Santa Singh had taken liquor at that time and was not in senses. Santa Singh called him while he was going to bazar along with Puran Singh. He has further deposed that Surjit Singh called him to attest an agreement executed by Santa Singh but he refused to attest the said agreement as Santa Singh was under the influence of alcohol. Similarly, DW-3 Puran Singh also deposed that he knew the parties. He was going to the shop of Niranjan Singh along with Gurcharan Singh when Surjit Singh, father of the plaintiff present at the shop along with Santa Singh, who was unconscious due to alcohol. Surjit Singh asked him to attest the agreement to sell, but he refused to do so as Santa Singh was under the influence of liquor. 8. A perusal of the statements of DW-2 and DW-3, in fact proves the presence of Santa Singh with Surjit Singh at the shop of Niranjan Singh. The allegation that Santa Singh was under the influence of liquor was not even pleaded by the defendant in his defence nor such was his stand in the written statement nor in the statement on oath. Therefore, keeping in view the statements of the witnesses examined by the parties, the finding recorded by the learned trial Court that the defendant entered into an agreement dated 7.12.1976 for the sale of 1/2 of the suit land, cannot be said to be suffering from any error. Thus, Issue No. 1, 2 and 4 are decided in favour of the plaintiffs and against the defendant. Issue No. 3 9. It is the case of the plaintiffs that a sum of Rs. 19,100/- was paid at the time when the agreement was executed and a sum of Rs. 12,900/- was kept for payment to the mortgagee. The balance sale consideration was only Rs. 2,000/-, which was to be paid within one month of the date of the agreement. PW-4 Surjit Singh, while appearing as a witness has deposed that he was always ready and willing to get the registration of the sale-deed. He has further deposed that he has asked Santa Singh to execute the deed but he refused to do so. Therefore, he has filed the suit. 10. Since the case of the defendant is that of one of denial, therefore, the statement of the plaintiff that he was ready and willing to perform his part of the contract is sufficient to infer that plaintiffs were ready and willing to perform their part of the contract. It was a meagre amount of Rs. 2,000/- alone which was required to be paid at the time of registration of the sale- deed. The substantial amount was paid at the time of execution of the agreement. More than Rs. 12,000/- was kept for payment to the mortgagee. Therefore, the argument raised by the learned counsel for the appellant that the plaintiffs have not led evidence to prove their ready and willingness to perform the contract is not tenable. 11. Learned counsel for the appellant has relied upon Manjunath Annadappa urf Shivappa Hanasi v. Tammanasa and others, 2003(2) RCR(Civil) 713 (SC) : 2003(10) SCC 390 to contend that Forms 47 and 48 of Schedule appended to the CPC, prescribe the procedure to prove the readiness and willingness of a party to an agreement. In the said case, the plaintiff has not raised any pleading that he was ready and willing to perform his part of the contract nor he deposed that he was ready and willing to perform his part of the contract. The Court held that a plaintiff in a suit of specific performance of a contract not only must raise a plea that he had all along been and even on the date of filing of the suit, was ready and willing to perform his part of the contract but also prove the same. Only in certain exceptional situations where although in letter and spirit, the exact word had not been used, but readiness and willingness can be culled out from reading all the averments made by the plaintiff as a whole coupled with the materials brought on the record at the trial of the suit, the statutory requirement of Section 16(c) of the Specific Relief Act may be held to have been complied with. The said judgment does not lend any support to the case set up by the appellant. 12. In the present case, there is a specific pleading about the readiness and willingness of the plaintiffs supported by their statements on oath. Meagre amount of Rs. 2,000/- alone remains to be unpaid. The plaintiffs have filed the suit for specific performance within two months of the date fixed for the execution of the sale-deed. Prior thereto the plaintiffs have filed a suit for injunction as the defendant intended to sell the property in violation of the agreement. The said acts leave no manner of doubt that the plaintiffs have discharged the onus to prove that they were ready and willing to perform their part of the contract. Thus, issue No. 3 is decided in favour of the plaintiffs and against the defendant. Issue No. 5 : 13. There is nothing on record to show that how the suit is bad for misjoinder for cause of action. No argument has been raised on the said issue as well. Consequently, the said issue is decided against the defendant and in favour of the plaintiffs. Issue Nos. 6 and 7 : 14. Learned counsel for the defendant-appellant has argued that since the plaintiffs have claimed alternative relief, therefore, the decree for specific performance could not have been passed. However, the said argument is not tenable in law. In Manjunath Annandappa's case (supra), the relief of specific performance of the decree of the agreement was declined on the ground that the suit was filed six years from the date of entering into the agreement to sell. It was found that having regard to Section 20 of the Specific Relief Act, it was obligatory on the part of the plaintiff to approach the Court within a reasonable time. In the present case, the plaintiffs have filed suit for specific performance on 8.3.1977 in respect of agreement dated 7.12.1976. Since the suit was filed after the failure to execute the sale-deed by the defendant, it cannot be said that the plaintiffs are not entitled to decree for specific performance of an agreement. In the above-said case, it was also held that the Court in appeal should not ordinarily interfere with the discretion exercised by the Courts below. Therefore, there is no circumstance, which may call for the interference in the discretion exercised by the trial Court. Hence, issue Nos. 6 and 7 are decided in favour of the plaintiffs and against the defendant. 15. In view of the above, I do not find that there is any error of jurisdiction in the findings recorded by the learned trial Court. Consequently, the present appeal is dismissed with no order as to costs. Appeal dismissed.

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    Comments

    Santa Singh v. Binder Singh And Others
    (Mar 29, 2006)