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  • Bose, C.J
  • Mangalmurti, J.
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  • Mangalmurti, J.
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Smart Summary

Concise Analytical Summary of the Opinion

Factual and Procedural Background

On 17 March 1939 the defendant, Mt. Kulwantin Bai (the widow of the plaintiff's separated brother), entered into a written contract to sell her 6 annas share in mauza Chirpoti to the plaintiff, Dau Alakhram, for Rs. 7,000. The agreement specified payment of certain outgoings by the purchaser (including canal water rates and a decretal amount due to Seth Champalal Ghevarchand), a requirement that the vendor apply for and obtain sanction to transfer "sir" land without reservation of occupancy rights within one month, and that a sale deed be executed within 15 days of receiving that sanction. The purchaser paid the canal water rate and the decretal amount on 18 March 1939. The vendor obtained the required sanction on 22 July 1939.

The plaintiff filed a suit on 21 March 1942 seeking specific performance, alleging that after sanction was obtained the defendant negligently failed to execute the sale deed. The suit proceeded in the lower court, which dismissed the claim; the present opinion is from the appellate court disposing of the appeal. The appellate court examines whether the plaintiff had continuously shown readiness and willingness to perform his obligations under the contract and whether equitable relief (specific performance) should be granted in the circumstances.

Legal Issues Presented

  1. Whether the plaintiff (purchaser) adequately alleged and proved continuous readiness and willingness to perform his part of the contract from the date of contract to the date of hearing, a necessary prerequisite for specific performance.
  2. Whether the plaintiff's long delay (from 22 July 1939 to 21 March 1942) in calling for or completing the sale-deed amounted to an abandonment or inordinate delay that disentitles him to specific performance.
  3. Whether, even if time was not expressed as "of the essence", the plaintiff's delay justified the vendor in treating the contract as at an end and in resisting equitable relief.
  4. Whether, applying equitable discretion under the Specific Relief Act, the court should refuse specific performance because its grant would cause unforeseen hardship to the vendor.

Arguments of the Parties

Appellant's (Plaintiff's) Arguments

  • The plaintiff maintained that after the contract the vendor failed to execute the deed of sale as required following sanction, so he sought specific performance.
  • The appellant's counsel argued that time was not of the essence of the contract and therefore the plaintiff had not violated any essential term that remained to be performed.

Respondent's (Defendant's) Arguments

  • The defendant asserted that she was at all times ready and willing to perform her part of the contract and that it was the plaintiff who avoided performance.
  • The defendant produced multiple written notices sent to the plaintiff (dated 31 July 1939, 15 September 1939 and 21 February 1940) expressing her readiness and asking the plaintiff to act, and thus she contended the plaintiff failed to show continuous readiness and willingness.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Ardeshar (Adeshir) Mama v. Flora Sassoon, 52 Bom. 597 : A.I.R. 1928 P.C. 208 Requirement in suits for specific performance that the plaintiff must allege and, if traversed, prove continuous readiness and willingness to perform his part of the contract; failure leads to dismissal. The court relied on this authority to hold that the plaintiff had not alleged or proved continuous readiness and willingness after 24 March 1939 and therefore could not obtain specific performance.
Shamjibhai v. Jagoo Hemchind Shah (F.A. No. 78) Reinforcement of the principle that readiness and willingness must be pleaded and proved in specific performance suits. Cited alongside Ardeshar Mama to support the conclusion that the plaintiff's failure to show readiness and willingness required dismissal.
Jamshed Khodaram v. Burjorji Dhunjibhai, 40 Bom. 289 : A.I.R. 1915 P.C. 83 Equity will not assist where there has been undue delay by one party and the other party has given reasonable notice that the contract must be completed within a definite time. The court invoked this principle to show that unreasonable delay permits the other party to treat the contract as ended, subject to notice requirements; it underpinned the conclusion that the defendant could regard the contract as at an end after long delay.
Pearl Mill Co. v. Ivy Tannery Co., 1919-1 K.B. 78 Discussion of lapse of time and the inference of abandonment where delay is long and mutual; distinction between mere lapse of a reasonable time and a lapse indicating that both parties treated the contract as at an end. The court reproduced Rowlatt J.'s analysis to justify drawing an inference of abandonment or that the plaintiff had dispensed with performance after the long intervening period (2 years 8 months).
Jones v. Gibbons (1852) 8 Ex. 920 and Freeth v. Burr (1874) 9 C.P. 208 Illustrate legal mechanisms by which a contract may be put an end: (i) by notice fixing a reasonable time for performance; (ii) by lapse of time so long as to infer abandonment. These authorities were used to explain alternative doctrines—notice to complete vs. inference of abandonment—and to support the court's factual inference that delay justified treating the contract as at an end.

Court's Reasoning and Analysis

The court's analysis proceeded in sequential factual and legal steps, grounded in the contract terms and established authority:

  1. Contract performance timeline and obligations: The contract (17 March 1939) required purchaser to pay certain sums immediately and to bear sale-deed expenses so the deed could be executed within 15 days after sanction to transfer sir land was obtained. The plaintiff paid the canal and decretal sums on 18 March 1939; the vendor obtained sanction on 22 July 1939.
  2. Legal prerequisite for specific performance: The court emphasized settled law (Ardeshar Mama and Shamjibhai) that a plaintiff seeking specific performance must plead and prove continuous readiness and willingness to perform his part from contract date to hearing. The court found that such an allegation/evidence was lacking for the period after 24 March 1939.
  3. Evaluation of plaintiff's evidence: The plaintiff produced two witnesses (Ramprasad P.W.2 and Sunhar P.W.8) with conflicting accounts about who accompanied whom; the court treated these inconsistencies as indicative that the witnesses were false and therefore discredited the plaintiff's claim of requests to the vendor to execute the sale-deed. The court noted the plaintiff did not send a written notice (which would have been expected if he had been ready and willing), drawing an adverse inference from the absence of such communication.
  4. Defendant's demonstrated readiness: The vendor sent multiple written notices (31 July 1939, 15 September 1939 and 21 February 1940) to several addresses, expressing readiness and calling upon the plaintiff to perform. Some notices were returned with a post-office endorsement that the addressee had gone on pilgrimage; the court accepted that the vendor had given clear notice of readiness and called for performance.
  5. Possible reasons for plaintiff's delay: The court accepted factual possibilities that the plaintiff exhausted funds treating his wife's illness and death (wife died 7 June 1939) and went on pilgrimage, or alternately that he changed his mind. But regardless of motive, the plaintiff did not show continuous readiness to perform from the critical period until suit initiation (21 March 1942).
  6. Legal effect of long delay: Relying on the cited authorities and statutory provisions (Sections of the Contract Act and the Specific Relief Act invoked in the opinion), the court held that the plaintiff's unexplained delay of two years and eight months (22 July 1939 to 21 March 1942) justified the vendor in inferring that the plaintiff had dispensed with performance and that the contract could be treated as at an end. The court applied the doctrine that equity will not assist where there has been undue delay and that lapse of time may allow an inference of abandonment.
  7. Discretionary refusal of specific performance: Even aside from the procedural pleading and proof failings, the court exercised its equitable discretion to refuse specific performance because enforcing it would cause unforeseen hardship to the vendor. The court detailed that the mortgagee had obtained a decree for Rs. 5,572; with payments already made by the plaintiff the total is Rs. 6,722 leaving a balance of only Rs. 278 for the vendor, and the vendor had relied on the balance to meet petty debts and cultivation management. Granting specific performance now would therefore work an unforeseen hardship on the defendant.
  8. Statutory placement and outcome: The court concluded this case fell under Case II of Section 22 of the Specific Relief Act, 1877 (as identified in the opinion) and thus affirmed the lower court's dismissal of the suit and dismissed the appeal with costs.

Holding and Implications

APPEAL DISMISSED.

Holding: The appellate court affirmed the lower court's decision and dismissed the plaintiff's appeal. The court held that the plaintiff failed to plead and prove continuous readiness and willingness to perform the contract and that his long inordinate delay (2 years 8 months) justified treating the contract as at an end. The court also declined to grant specific performance in the exercise of its equitable discretion because doing so would cause unforeseen hardship to the defendant.

Direct consequences and implications:

  • The plaintiff's suit for specific performance is dismissed and the appeal fails; costs were awarded against the appellant as ordered.
  • The court applied established precedents and statutory provisions (including Section 22 of the Specific Relief Act for discretionary refusal, and principles from the Contract Act regarding reasonable time and remission) but did not purport to create a new legal precedent; it affirmed and applied existing principles to the facts.

This summary is strictly confined to the information contained in the provided opinion and does not add facts or inferences beyond that text.

Show full summary ...

    Dau Alakhram v. Mt. Kulwantin Bai

    1. The defendant Mt. Kulwantin Bai, who is the widow of the plaintiff's separated brother Deosingh, had entered into a contract for the sale of her 6 annas share in mauza Chirpoti, tahsil and District Drug, for Rs. 7,000 to the plaintiff on 17th March 1939. The other terms of the contract were:

    (i) The entire expenses from the time of obtaining permission in respect of sir land up to the time of registration of the deed of sale and the like would be incurred by the purchaser and the vendor would not remain responsible for any expenses;

    (ii) Dau Alakhram (plaintiff-appellant) would pay within 2 days the entire canal water rate in respect of which a warrant was issued from the canal office and vendor's kharhi had been attached and would obtain a receipt therefor;

    (iii) The purchaser would within 2 days pay in full either through the vendor or himself the decretal amount of Seth Champalal Ghevarchand for which he had attached the vendor's share and got the same put to auction sale subject to the mortgage right of Dau Ghanashamsingh and his brothers and obtain a receipt therefore;

    (iv) The vendor would make an application for permission to sell sir land without reservation of occupancy rights therein within a month from the date of execution of the deed of agreement, and would execute a deed of sale within 15 days of the day on which permission would be obtained. Thereafter upon the payment of the amount due on the mortgage of Dau Ghanashamsing and his brothers the deed of sale shall be presented for registration; and

    (v) The vendor shall take the balance that would be left after the payment of that mortgage amount at the time of registration.”

    2. The purchaser accordingly paid the canal water rate and the decretal amount of Seth Champalal Ghevarchand on the following day, i.e, on 18th March 1939. Six days later the vendor made an application for sanction to transfer the village share without reservation of occupancy rights in sir land, and necessary sanction was obtained on 22nd July 1939. The plaintiff Dau Alakhram brought this suit on 21st March 1912 for specific performance of that contract alleging that after the receipt of the sanction mentioned above the defendant Mt. Kulwantin Bai (respondent 1) carelessly sat quiet and did not execute a deed of sale as required by the term of the agreement. This being a suit for specific performance the plaintiff had to allege and if the fact was traversed he was required to prove his continuous readiness and willingness from the date of the contract to the time of the hearing, to perform the contract on his part. Failure to make good that averment brings with it the inevitable dismissal of his suit; Ardeshar Mama v. Flora Sassoon, 52 Bom. 597 : (A.I.R (15) 1928 P.C 208); see also Shamjibhai v. Jagoo Hemchind Shah, F.A No. 78 of 1942, D/- 19th October 1918—Para, 54 of the judgment. There is no such allegation at least for the period subsequent to 20th April 1939 either in the plaint or in the written reply even though the defendant stated that she was ready and willing all along to sell the property and perform her part of the contract and it was the plaintiff who avoided the performance of his part threreof.

    3. As already mentioned above sanction to transfer sir land without reservation of rights of occupancy therein was obtained on 22nd July 1939. The next step in the performance of the contract was the execution of the deed of sale within 15 days of the day on which the sanction to transfer the sir land was obtained, but the expenses for the deed of sale were to be incurred by the purchaser. Until he paid the money for the stamp paper the sale deed could not be executed. It was thus for the plaintiff to express his readiness and willingness to pay the money and to call upon the other side to execute the sale-deed. He has led evidence of 2 witnesses Ramprasad (P.W 2) and Sunhar (P.W 8). The former says that no one ??? was present when he had the talk with Kulwantin Bai while the latter says that he and Ramprasad (P.W 2) were present on that occasion. Apart from this contradiction there is no mention in the evidence of the plaintiff Dau Alakhram (P.W 1) that he had sent those two witnesses to the defendant Kulwantin Bai to inquire of her when she would execute the document. There is, therefore, no doubt that these are false witnesses, and as Dau Alakhram tried to prove this fact by producing false evidence he cannot be believed when he says that after his return from pilgrimage he asked Kulwantin Dai to get the deed of sale executed. Had it really been a fact that he was ready and wiling to perform his part of the contract and Kulwantin Bai was sitting quiet he would have sent her a written notice expressing his readiness and willingness to do his part of the contract and calling upon her to execute the sale-deed. His failure to send such a written notice clearly proves that he was not ready and willing to perform his part of the contract.

    4. Oa the other hand the defendant Kulwantin Bai sent 3 notices to the plaintiff, appellant on 31st July 1939 to his addresses at Konari, Chirpoti and Dagania (vide Exs. D-12, D-14 and D-17). She again sent another 8 notices on 15th September 1939 to the plaintiff on those addresses (see Exs. D-18, D-19 and D-21). She also made one more effort in this direction and sent again 3 notices on those addresses on 21st February 1940: vide Ex. D-26. The first two sets of those notices were, no doubt, returned by the post office with the endorsement dated 6th October 1939 that the addressee had gone on pilgrimage, and though we are unable to say definitely from the evidence on record that the plaintiff got knowledge of them or of the subsequent notices dated 21st February 1940, this much is certain that the defendant had sent them and she had expressed in them her readiness and willingness to perform her part of the contract and had called upon the plaintiff to do his part.

    5. It seems that the plaintiff could not perform his part of the contract because he spent the money he had in the treatment of his wife who was seriously ill and subsequently died on 7th June 1939 and in the pilgrimage which he undertook after his wife's death; or it may be that he changed his mind and did not want to purchase the property because he thought that it was not a good bargain and that the property was ultimately going to be his after the death of the defendant Kulwantin Bai but again thought of purchasing it when the prices of properties went up and instituted this suit. Whatever may be the reason, this much is certain that he has not been able to show that he was ready and willing to perform his part of the contract affect, 24th March 1939 till the date of the suit, viz. 21st March 1942, while the defendant has established that she was ready and willing to perform her part. This naturally leads to the dismissal of the suit on the principle laid down in the above mentioned Privy Council ruling namely Adeshir Mama v. Flora Sassoon, 52 Bom. 597 at p. 619 : (A.I.R (15) 1928 P.C 208) and Shamjibhai v. Jagoo Hemchand, F.A No. 78 of 1918, D/- 19th October 1948, which principle is set out succinctly in Section 24(b) of the Specific Relief Act, 1877.

    6. The learned counsel for the appellant, however, argued that time not being of the essence of the contract his client had not violated any essential term of the contract that on his part remained to be performed. There is no doubt that time was not of the essence of the contract in the sense that the plaintiff ought to have expressed his readiness and willingness within 15 days of the obtaining of the sanction to transfer sir land without reservation of rights of occupancy, and that under Section 48 of the Contract Act, it could be performed within a reasonable time but that very provision says that it must be performed within a reasonable time. So if there is unnecessary delay on the part of one party it should be open to the other party to put an end to the contract, and that is the law which, however, requires the other party to give him notice before he terminates it. Their Lordships of the Privy Council remarked in Jamshed Khodaram v. Burjorji Dhunjibhai, 40 Bom. 289 at p. 299 : (A.I.R (2) 1915 P.C 83).

    “But equity will not assist where there has been undue delay on the part of one party to the contract, and the other has given him reasonable notice that he must complete within a definite time.”

    7. In that very case their Lordships further remarked at p. 297:

    “Their Lordships do not think that this Section (Section 55 of the Contract Act, 1872) lays down any principle which differs from those which obtain under the law of England as regards contracts to sell land.”

    8. The law has been summarized by Pollock and Mulla in their Indian Contract and Specific Relief Acts, 7th Edn. (1944) at p. 803 in the following words:

    “Either party's general right to have the contract performed within a reasonble time according to the circumstance is of course, unaffected by the fact of time not being of the essence and in case of unnecessary delay by one party the other may give him notice fixing a reasonable time after the expiration of which he will treat the contract as at an end; and where there has been inordinate delay on both sides, it may be inferred that the contract has been abandoned, although no such notice has been given.”

    9. We find a very instructive discussion about this question of inordinate delay in Pearl Mill Co. v. Ivy Tannery Co., 1919-1 K.B 78 : (38 L.J.K.B 134) and we think it better to reproduce the words of Rowlatt, J. which would be found at pp. 81 and 82:

    “…. That decision (Jones v. Gibbons (1852) 8 Ex. 920 : (22 L.J Ex. 347) deals with the position where the only point taken is that the buyer is in default by not asking for delivery within a reasonable time. He may be, consistently with that position, anxious to keep the contract, but if he will not come up to the point of making a demand for delivery the seller can bring him to the point by saying: ‘I shall cancel unless you ask for delivery by such and such a day.’ But he cannot bring the contract to an end by doing nothing and merely pleading that a reasonable time his elapsed. That case is not the same as the one we have to consider, which does not turn in that sense upon merely the lapse of a reasonable time but upon a lapse of time which may be very much more than that which would be a reasonable time for the purposes of the question in Jones v. Gibbons, (1852) 8 Ex. 920 : (22 L.J Ex. 347)—viz., a lapse of time, allowed to pass by both sides so long as to induce the Court to draw the inference that both parties thought that each of them had treated the contract as at an end. As I understand it, the learned county Court Judge took that view. He held that there were two entirely different ways in which the contract could be put an end to one by the machinery of Jones v. Gibbons, (1852) 8 Ex. 920 : (22 L.J Ex. 347) and the other by the operation of the principle which, although the facts and the form of the application of it are entirely different is the principle to be found in cases like Freeth v. Burr, (1874) 9 C.P 208 : (43 L.J.C.P 91), that is to say, when each party apprehends that the other abandons the contract. He held that the latter principle applied to the present case—that is, that there had been not merely the lapse of a reasonable time giving an option to the vendee to determine the contract by notice, but that the lapse of time had been so long on both sides that he thought that the proper inference to be drawn was that each party was justified in assuming that the matter was off altogether. If that is so, the only question is whether there were materials on which he could come to that conclusion. I think that there were plenty of materials. The lapse of time alone was enough, but it was a pure question of fact on which there were materials before him which justified him incoming to the conclusion at which be arrieved, and therefore we cannot interfere with his decision.”

    10. This principle finds place in Section 63 of the Contract Act which lays down—

    “Every promisee may dispense with or remit, wholly or in part, the performance of the promise made to him…….”

    11. In this case the contract was entered into on 17th March 1939. The entire canal water rate and the decretal amount of Seth Champalal Ghevarchand were actually paid within two days. The application for sanction to transfer sir land without reservation of rights of occupancy was to be made within a month from the date of the agreement and it was actually made a week after the date of the agreement and sanction was obtained on 22nd July 1939. According to the agreement the sale-deed was to be executed within 15 days of the day on which permission to transfer sir land would be obtained and the mortgage debt was to be paid after this and the balance was to be paid at the time of the registration. The defendant wanted to pay her petty debts from the balance and to utilize the surplus for management of her cultivation of the property that would be left with her. In spite of all this expedition the plaintiff-appellant kept quiet from 22nd July 1939 to 21st March 1942 on which date he filed this suit, i.e for 2 years and 8 months. Under these circumstances the defendant was justified in inferring that the plaintiff had dispensed with or remitted wholly the performance of the promise made to him.

    12. At any rate we are of opinion that in these circumstances we are not bound to grant to the plaintiff the discretionary relief of specific performance as it would involve hardship on the defendant which she did not foresee. It seems from the agreement that she never thought at the time of entering into it that the plaintiff would delay the performance of his part of the contract for such a long time. It is no justification to say that the defendant had received the crops of the property during this period as the interest on the mortgage debt was increasing every day. She wanted to get rid of her petty debts early and to manage the cultivation of the little property that would be left with the balance. This is not possible now as the mortgagee has obtained a decree for Rs. 5,572 and with the payment already made by the plaintiff the total comes to Rs. 6,722, and the balance that would be left would amount to Rs. 278 only. The plaintiff on the other hand cannot complain of any hardship on him as it is he who is responsible for this long delay. We are, therefore, of the opinion that this case would come under case II mentioned in Section 22 of the Specific Relief Act, 1877. The decision of the lower Court is therefore quite correct. The appeal fails and is hereby dismissed with costs. Costs in the lower Court as ordered by that Court.

    13. Appeal dismissed.

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    Comments

    Dau Alakhram v. Mt. Kulwantin Bai
    (Aug 12, 1949)