IN THE HIGH COURT OF KARNATAKA AT...

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IN THE HIGH COURT OF KARNATAKA AT BANGALORE

Dated this the 11th day of October, 2013

PRESENT

THE HON’BLE MR.JUSTICE N. KUMAR

AND

THE HON’BLE MR.JUSTICE V.SURI APPA RAO

RFA NO.1242/2003 &

Misc. Civil No. 13365/2010 C/W

RFA NO.1312/2003 IN RFA NO.1242/2003 &

Misc. Civil No. 13365/2010

BETWEEN: Smt Padmini Raghavan W/o Dr.Ravi Raghavan Aged 45 years Now residing at Villa No.15, Prestige Cedars No.7, Convent Road Bangalore – 560025 …APPELLANT

(By Sri Udaya Holla, Senior Counsel for Sri Dayanand

S. Naik, Advocate)

2

AND: 1. Mr.H A.Sonnappa,

S/o Appaiahnnaa @ Byrappa, Aged about 40 years, Residing at Hennur Bande, St.Thomas Town Post Bangalore – 560084 Since dead by his LRs

1(a) Smt.Bhagyamma

W/o H.A.Sonappa Aged about 50 years

1(b) Sri Shivkumar

S/o H.A.Sonappa Aged about 31 years

1(c) Sri S.Mohan Kumar


1(d) Sri Sunil Kumar


1(e) Sri S.Srikant Kumar


1(f) Sri Anil Kumar


1(g) Sri S.Arun Kumar


3

1(h) Smt.Bindu D/o H.A.Sonappa Aged about 19 years

All are residing at: Annayyappa Colony Opposite RTC, St.Thomas Town Post Hennur Bande Bangalore – 560084

2. Smt.Hanumakka

W/o Late Muniswamy Gowda Aged about 70 years Residing at Thimmasandra Village Sulubele Hobli, Hosakote Taluk Bangalore Rural District

Since dead by LR:

2(a) Mr.Ashwathappa S/o late Muniswamy Gowda No.21, 1st Main Road, 6th Cross Pampa Extension Kempapura, Bangalore – 560 024

3. Smt.Lakshmi Thamaiah

W/o Thamaiah, Major in age Residing at Vaidyanathapura Maddur Taluk, Mandya District

4. Sri V.T.Anand

S/o V.B.Thanaiah, Major in age Residing at Vaidyanathapura Maddur Taluk, Mandya District …RESPONDENTS

(By Sri S Vijayashankar, Senior Counsel for Sri T.Seshagiri

Rao, Advocate, for R1(a) to (h);

4

Sri B.V.Acharya, Senior Counsel, for Sri Chouta, Advocate, for R3 & R4)

This RFA is filed u/S 96 read with Order XLI Rule 1 of

the Code of Civil Procedure, against the Judgment and Decree dated 10.07.2003 passed in O.S.No.316/93 on the file of the II Addl. Civil Judge (Senior Division), Bangalore Rural District, Bangalore, decreeing the suit for specific performance of agreement.

Misc. Civil No. 13365/2010 is filed praying to permit the appellant to produce additional documents for the reasons stated therein.

IN RFA NO.1312/2003

BETWEEN: 1. Smt.Lakshmi Thamaiah

W/o Sri Thamaiah, Major in age Residing at Vaidyanathapura Maddur Taluk, Mandya District

2. Sri V.T.Anand,

S/o V.B.Thanaiah, Major in age Residing at Vaidyanathapura Maddur Taluk, Mandya District …APPELLANTS

(BY Sri B.V.Acharya, Senior Counsel, for Sri Chouta,

Advocate) AND: 1. Sri H.A.Sonnappa

S/o Sri Appaiahnna Aged about 43 years Residing at Hennur Bande St.Thomas Town Post Bangalore – 560084

5

Since dead by his LRs 1(a) Smt.Bhagyamma

W/o H.A.Sonappa Aged about 50 years

1(b) Sri Shivkumar


1(c) Sri S.Mohan Kumar


1(d) Sri Sunil Kumar


1(e) Sri S.Srikant Kumar

S/o H.A.Sonappa Aged about 29 years 1(f) Sri Anil Kumar


1(g) Sri S.Arun Kumar


1(h) Smt.Bindu

D/o H.A.Sonappa Aged about 25 years

All are residing at: Annayyappa Colony Opposite RTC Hennur Bande

6

Bangalore – 560084 2. Smt.Hanumakka

W/o Late Muniswamy Gowda Aged about 70 years Residing at Thimmasandra Village Sulubele Hobli, Hosakote Taluk Bangalore Rural District

Since dead by LR:

2(a) Mr.Ashwathappa S/o late Muniswamy Gowda No.21, 1st Main Road, 6th Cross Pampa Extension Kempapura, Bangalore – 560024

3. Smt Padmini Raghavan

W/o Dr.Ravi Raghavan Aged 45 years Now residing at Villa No. 15, Prestige Cedars, No.7, Convent Road, Bangalore – 560 025 …RESPONDENTS

(By Sri S Vijayashankar, Senior Counsel for Sri T.Seshagiri

Rao and Sri Sunil S Rao, Advocate, for R1(a) to (h); Sri Udaya Holla, Senior Counsel for Sri Dayanand S Naik,

Advocate, for R3; R2 dead ) This RFA is filed u/S 96 read with Order XLI Rule 1 of

the Code of Civil Procedure, against the Judgment and Decree dated 10.07.2003 passed in O.S.No.316/93 on the file of the II Addl. Civil Judge (Senior Division), Bangalore Rural District, Bangalore, decreeing the suit for specific performance of agreement.

7

THESE APPEALS AND MISC. CIVIL COMING ON FOR HEARING THIS DAY, N KUMAR J., DELIVERED THE

FOLLOWING:

J U D G M E N T

These two appeals are preferred by defendants 2 to 4

against the judgment and decree of specific performance of

the agreement of sale granted by the trial Court.

2. For the purpose of convenience, the parties are

referred to as they are referred to in the original suit.

3. The subject matter of the suit is agricultural

lands bearing Sy.No.108 measuring 7 acres 20 guntas,

Sy.No.109 measuring 5 acres 33 guntas, Sy.No.112

measuring 10 acres and Sy.No.113 measuring 5 acres 24

guntas, all situated in Thylagere Village, Kundana Hobli,

Devanahalli Taluk, Bangalore District and bounded within

the boundaries mentioned in the schedule (hereinafter

referred to as the schedule property).

8

4. The first defendant Smt. Hanumakka is the

absolute owner of the schedule property. The case of the

plaintiff is that she entered into an agreement on 05.11.1990

agreeing to sell the aforesaid 28 acres 37 guntas of land in

favour of the plaintiff for a sum of Rs.3,47,100/-. The

plaintiff paid a sum of Rs.1,75,000/- to the defendants. On

the same day, the defendants delivered possession of the

schedule property to him. Her son by name Ashwathappa

has also attested the agreement of sale dated 05.11.1990.

The first defendant agreed to execute the sale deed as soon

as survey and durast work of the suit schedule property was

carried out. She also agreed to complete the sale transaction

within thirteen months from the date of the agreement. The

plaintiff was always ready and willing to perform his part of

the obligation. He was ready with the balance sale

consideration. He requested the first defendant more than a

dozen time to come and execute the sale deed. The first

defendant under one pretext or the other evaded to execute

the sale deed. The plaintiff during 1993 got issued two legal

9

notices to the defendants. Though the first defendant

received the said notice, she neither replied nor complied

with the demand made therein. Right from the date of

execution of the agreement, the plaintiff was ready to

perform his part of the obligation as contemplated under the

agreement. It is the defendants who were evading to execute

the sale deed. Pursuant to entering into the agreement, the

plaintiff has developed the land by investing huge lot of

money i.e., he has raised mango groves and he has also

leveled the entire land by using the bulldozer and also made

preparation to fence the entire land for which purpose he

has invested lot of money. The defendants even to this day

have not made any attempt to disturb the possession of the

suit schedule property. The first defendant has not executed

the sale deed. The suit was originally filed only against the

first defendant. Subsequently, an application was filed for

impleading second defendant, which was allowed.

Thereafter, the plaintiff filed an application for impleading

defendant Nos.3 and 4. It was also allowed. After they were

10

impleaded the plaintiff amended the plaint by adding para-

5(a). The second defendant has purchased item (c) of the

suit schedule property from the Power of Attorney holder of

the first defendant. The first defendant has executed a

General Power of Attorney in favour of one Sri Amit Gupta on

22.07.1992. On 29.08.1992 it was revoked. On the day

Amit Gupta conveyed the property to the second defendant

the General Power of Attorney was not in existence and Amit

Gupta had no power to convey the property. Even though he

has conveyed the property, it would not create or confirm

any better right, title or interest in favour of the second

defendant. The second defendant cannot claim that she had

become absolute owner of the property by virtue of the sale

deed dated 05.10.1993. By virtue of the agreement dated

05.11.1990 the plaintiff had no subsisting right over the

property in question. The sale deed in favour of the second

defendant would in no way affect the right of the plaintiff

over the suit property. The agreement dated 05.11.1990 has

not been terminated till the filing of the suit. Therefore, the

11

first defendant by herself or through her agent have no right

to convey the suit schedule property in favour of the second

defendant and the alleged sale deed do not bind the right of

the plaintiff in any manner nor affect his interest in any

manner. The first defendant has sold the first item of the

suit schedule property in favour of the third defendant under

a sale deed dated 15.02.1992. The first defendant on

26.06.1992 has also sold the ‘B’ and ‘D’ schedule properties

in favour of defendant No.4 by executing another sale deed

and getting it registered. The first defendant has not

disclosed the said alienation made by her in the written

statement placed by her in the year 1996. As such her

conduct in that regard is depricable. The plaintiff came to

know about the alienation in favour of defendant Nos.3 and

4 only during third week of June 1999. Thereafter he made

an application under Order 1 Rule 10(2) CPC for impleading

the purchasers as additional defendants in the above case,

which application was allowed. That is how they are arrayed

as defendants 3 and 4 in the suit. Defendants 3 and 4 have

12

purchased the property under two registered sale deeds. The

said sale deeds are subject to the final result of the case

since they came to picture after the agreement of sale dated

05.11.1990. The sale deeds dated 15.02.1992 and

26.06.1992 will not take away the right vested with the

plaintiff to get a decree for specific performance of the

agreement dated 05.11.1990. The said sale deeds are void

abinitio. They have been created by the first defendant in

favour of the defendant No.3 and 4 in order to defeat the

rights of the plaintiff under the agreement dated 05.11.1990.

The said documents are collusive, executed with an intention

to defraud the plaintiff and therefore, the plaintiff sought for

a decree for specific performance of the agreement dated

05.11.1990. Subsequently, by way of an amendment of the

prayer column, he sought for a direction directing the

defendant Nos.1, 3 and 4 to execute the sale deed jointly in

favour of the plaintiff in pursuance of the agreement dated

05.11.1990 and put the plaintiff in lawful possession of the

suit schedule property.

13

5. After service of summons, the first defendant

has filed the written statement. She admitted execution of

the agreement dated 05.11.1990 agreeing to sell the suit

property for a consideration of Rs.3,47,100/-. However, it is

her specific case that only a sum of Rs.75,000/- was paid

under the agreement and not Rs.1,75,000/- as alleged by

the plaintiff. It is her further case that plaintiff inserted Rs.1

Lakh in between the words “agreement” thereby tampering

the valuable agreement. She denied that she agreed to

execute the registered sale deed after survey and durasth

work of the suit schedule property. She denied that 13

months is the period agreed upon for completing the sale

transactions. It is her case that time agreed was only three

months from the date of agreement, but the plaintiff failed to

obtain sale deed within the stipulated period in spite of

repeated demands and requests made by the defendant.

Further, the plaintiff manipulated and tampered the

documents by inserting 13 months in place of 03 months.

The allegation that the plaintiff was ready and willing to

14

perform his part of the obligation arising out of the

agreement is an utter falsehood averred just for the purpose

of the suit. She admits the issue of legal notice and the

same has been replied to. The allegation that the plaintiff

has developed the lands by investing huge amounts and

raised mango fruits and he has also leveled the entire lands

by using buldozers and he has fenced the lands by spending

huge amounts are all denied as false. In fact there is already

mango groove in the land. The entire land has been fenced

and leveled and there is no need for the plaintiff to do these

works on the land. After the agreement, the plaintiff failed to

obtain the sale deed within the stipulated period and went

on postponing on one pretext or the other. Finally, he

expressed his inability to arrange funds and obtain sale deed

from the defendant. Hence, he agreed to take back the

advance amount and cancel the agreement. Though, the

defendant was entitled to forfeit the advance amount, she

has graciously returned the amount and got cancelled the

original agreement dated 05.11.1990. In fact, the suit

15

schedule property was sold to one Lakshmi Thammaiah of

Maddur and Padmini Raghavan under two separate sale

deeds registered in the office of the Sub-Registrar,

Devanahalli. The said land was sold much earlier to the

filing of the suit. Out of the sale consideration received by

the defendant, the advance amount has been returned to the

plaintiff by canceling the original agreement dated

05.11.1990. The defendant has executed a separate

document canceling the original agreement and also

acknowledged having received or having taken return of the

advance amount from the defendant. This document is in

accordance with oral understanding reached by plaintiff and

defendant when plaintiff was unable to perform his part of

the agreement. The said document dated 13.08.1992

cancelling of the original agreement dated 05.11.1990 was

produced as Annexure – ‘X’ to the written statement. The

defendants are in peaceful possession and enjoyment of the

suit schedule property. The plaintiff suppressing the

material facts of cancellation of the earlier agreement

16

between him and defendant and by inserting words in

between the lines and making material alterations filed the

suit. The plaintiff has not made proper parties to the suit.

Even if decree or order is made against the defendant, the

same is infructuous as she is not the owner of the suit

schedule property on the date of filing of the suit.

6. The second defendant filed an application to

implead herself in the suit. The application was allowed.

Thereafter, she filed her written statement.

7. She has stated that she has purchased the land

bearing Sy.No.112 referred to Schedule Item No.C of the suit

schedule property measuring to an extent of 10 acres

situated at Thylagere Village, Kundana Hobli, Devanahalli

Taluk, Bangalore Rural District for a valuable consideration

of Rs.1,70,000/- by a registered sale deed dated 05.10.1993.

Ever since the date of purchase, she is in possession and

enjoyment of the land in question. After purchase, she filed

17

an application before the Deputy Tahasildar of Devanahalli

Taluk with a request to change the khatha in her favour.

The Tahsildar had issued an endorsement dated 12.10.1995

stating that the plaintiff has filed the Original Suit No.

316/1993 before the Court. He has obtained an order of

temporary injunction which has been extended from

15.01.1995 till further orders. Therefore, the khatha cannot

be changed till the disposal of the suit. Till the said

endorsement was served on her, she was not aware of the

suit filed by the plaintiff. She preferred an appeal against

the order of the Deputy Tahsildar dated 12.10.1995 before

the Assistant Commissioner. The appeal was registered as

No.206/1995-96. She also stated that Item Nos. ‘B’ and ‘D’

schedule properties were sold to Sri V.T.Anand, the fourth

defendant in the suit, and item No.‘A’ schedule property was

sold to one Mrs.Lakshmithammaiah, the third defendant in

the suit, by a registered sale deed dated 15.02.1992, i.e.,

much prior to the institution of suit by the plaintiff.

Subsequently, khatha was also changed in favour of the

18

defendant by an order dated 21.09.1993. In view of the said

facts, the suit is not maintainable for mis-joinder and non-

joinder of parties. Therefore, she sought for dismissal of the

suit.

8. Defendants 3 and 4 who are impleaded on an

application filed by the plaintiff also filed their written

statement. They admitted the sale deed executed by the first

defendant in their favour. They have pleaded their complete

ignorance regarding the agreement dated 05.11.1990 and

the alleged payment of Rs.1,75,000/- by the plaintiff to the

first defendant. They denied that the plaintiff was put in

possession under the agreement of sale. They have denied

all the allegations in the plaint. They have denied the

plaintiffs possession over the suit schedule property. The

sale deeds have been executed by the first defendant in

favour of these defendants in accordance with law and these

defendants are bonafide purchasers for valuable

consideration without knowledge of the alleged agreement of

19

sale in favour of the plaintiff and therefore, the plaintiff has

no right to question the sale in favour of defendants. There

is no fraud in the purchase of item (a), (b) and (c) of lands by

these defendants. The suit for specific performance being a

discretionary relief, cannot be granted in favour of the

plaintiff as the plaintiff has not approached this Court

immediately on the expiry of 13 months in terms of the

alleged agreement of sale, even assuming that such an

agreement is there, but not conceding. In the meanwhile

third party interest having been created, he cannot maintain

the suit. The plaintiff having slept over the matter cannot

after the sale through proper registered documents being

effected in favour of these defendants, question the same.

The relief of specific performance cannot be granted as it

works out adversely to the interest of these defendants.

9. The plaintiff has filed a rejoinder to the written

statement of the first defendant. The allegation that the

original agreement of sale is tampered was denied. It is the

20

defendant who got the document prepared. In fact, some

corrections were there in the first page of the agreement and

thereafter she has attested those corrections by signing the

paper which clearly goes to show that no tampering has

been done by the plaintiff. The defendants have taken a

contention that the agreement dated 05.11.1990 is cancelled

on 13.08.1992 by the plaintiff himself which is denied as

false. The plaintiff has not executed any document on

13.08.1992. The document dated 13.08.1992 is concocted,

forged, fabricated document created by the defendants solely

with an intention to defraud the plaintiff. The signature

contained on the alleged document is not that of the plaintiff.

A careful reading of the said document shows that there was

an Agreement between the parties on 04.10.1990 and that

the same has been cancelled. The consideration set forth in

the document is something else and receipts incorporated is

Rs.80,500/- and the said Stamp Paper do not contain the

signature of the stamp vendor and further it does not

disclose in whose name the stamp paper was purchased. It

21

clearly makes out that it is a concocted document. Similarly,

rejoinder was filed to the written statement of defendants 3

and 4 also. The defendants 3 & 4 were fully aware of the

agreement dated 05.11.1990 when they purchased the

portion of the suit schedule property under the sale deed

dated 15.02.1992 and 26.06.1992. Despite she ventured to

purchase a portion of the suit schedule property from the

alleged Power of Attorney Holder of Defendant No.1. In that

view of the matter, the sale deeds dated 15.02.1992 and

26.06.1992 obtained by the defendants 3 & 4 are not valid

sale deeds in the eye of law. Further, defendants 3 & 4 are

not bonafide purchasers for value without knowledge of

agreement sale dated 05.11.1990 and as such, they are not

entitled for protection of her right alleged to have been

accrued under the sale deed dated 15.02.1992 and

26.06.1992. He denied that the defendants are in

possession of the property. On the contrary, he contended

that after taking possession, he has developed the same by

investing huge amount of money towards leveling the

22

schedule property with the help of bulldozer and he has also

sunk a Well, fitted with Diesel Motor for lifting water in order

to grow crops in the property in question. He has also

planted about 2000 Mango Plants which are presently aged

about 11 years and are already yielding fruits. The

defendants 3 and 4 at the time of taking the alleged Sale

Deed dated 15.02.1992 and 26.06.1992 were quite aware of

the possession of the plaintiff over the suit schedule property

in pursuance of the agreement dated 05.11.1990 and also

the development already made by the plaintiff therein. The

contention of the defendants 3 and 4 that the plaintiff slept

over the matter and approached the Hon’ble Court after 13

months and as such, the plaintiff is not entitled to claim for

specific performance of the agreement dated 05.11.1990 is

incorrect. There is no delay and laches on the part of the

plaintiff in approaching the Court. Hence, he prayed for

decree of the suit.

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10. Subsequently, an additional written statement

came to be filed by defendants 3 and 4. They contend that

the prayer of the plaintiff for possession cannot be granted

as the suit has not been properly valued. Unless the plaintiff

pays the court fee, the plaintiff cannot file a suit for

possession and as such, defendants are in possession

pursuant to the sale deed in their favour, unless the sale

deeds are declared as null and void, the suit of the plaintiff is

unsustainable.

11. On the aforesaid pleadings, the trial Court

framed the eight issues and two additional issues.

“1. Whether the plaintiff proves that under the

agreement of sale dated 5.11.90 he has

paid Rs.1,75,000/- to the 1st defendant as

part consideration?

2. Whether the plaintiff proves that he was

put in possession of the suit properties in

part performance of the contract?

3. Whether the 1st defendant proves that the

plaintiff has paid only Rs.75,000/- as part

24

consideration under the agreement dated

5.11.90 and he has inserted figure ‘1’ and

made it to appear Rs.1,75,000/- and

thereby tampered or altered the suit

agreement?

4. Whether the plaintiff proves that the 1st

defendant had agreed to complete the sale

transaction within 13 months from the date

of agreement and the time was the essence

of the contract?

5. Whether the plaintiff proves that he was

always ready and willing to perform his

part of the contract and obtain a regular

sale deed and it is the 1st defendant who

has evaded to execute the sale deed?

6. Deleted.

7. Whether the plaintiff is entitled for the relief

of specific performance of the contract

dated 5.11.90 in respect of the four

properties described in the plaint schedule?

8. What decree or order?

Additional issues

1. Whether the defendants 2 to 4 proves that

they are the bonafide purchasers of the suit

schedule properties accordingly they were

25

put in possession of the suit schedule

property in pursuance of their respective

sale deeds executed by the 1st defendant?

2. Whether the plaintiff proves that

defendants 2 to 4 have purchased the suit

schedule property with knowledge of the

agreement of sale entered into between him

and defendant No.1 in respect of the suit

properties?”

12. The plaintiff in order to substantiate his claim

examined himself as PW-1 and also examined two attesting

witnesses to the agreement of sale as PWs.2 and 3. They

produced 17 documents which were marked as Exs.P1 to

P17. On behalf of the defendants, 1st defendant’s son and

also her power of attorney holder Sri.T.Ashwatappa was

examined as DW-1. 2nd defendant was examined as DW-2.

Dr.Ravi Raghavan was examined as DW-3. The power of

attorney holder of 1st defendant Sri.Amith Gupta was

examined as DW-4. Sri.V.T.Anand, the 4th defendant was

examined as DW-5 and Sri.B.R.Yogish was examined as DW-

26

6 and they have produced 29 documents which were marked

as Exs.D1 to D29.

13. The trial Court on appreciation of the oral and

documentary evidence on record held that the execution of

agreement of sale is admitted. The evidence of the plaintiff’s

witnesses coupled with the evidence of DW-1 shows that

there are no interpolations in the agreement of sale. It also

held that a sum of Rs.1,75,000/- was paid and possession

was delivered on the date of agreement of the sale. It held

that the 1st defendant has failed to prove that only

Rs.75,000/- was received under the agreement of sale and

not Rs.1,75,000/-. The 1st defendant has failed to prove the

interpolation pleaded by her in the written statement. It

recorded a finding that the plaintiff was put in possession on

the date of the agreement and continuously he is in

possession of the property. It held that the 13 months was

the period prescribed for completion of the sale transaction

from the date of the agreement and not three months.

27

Defendants 2 to 4 have failed to prove that they are the

bonafide purchasers for valuable consideration. Though no

specific issue was framed regarding limitation, as both the

parties argued on the basis of the material on record, it

recorded a finding that the suit is in time. Accordingly, the

suit for specific performance was decreed. Aggrieved by the

said judgment and decree of the trial Court, 2nd defendant

has preferred RFA 1242/2003 and defendants 3 and 4 have

preferred RFA No.1312/2003.

ARGUMENTS

14. Sri B. V. Acharya, learned Senior Counsel

appearing for the appellants-defendants 3 and 4 contended

as under:-

(a) A bare perusal of the suit agreement discloses two

types of interpolations. First interpolation is by typing.

The second interpolation is by writing in hand. The

interpolation is regarding material terms of the

contract. The contract should have been completed

28

within three months and only Rs.75,000/- was paid

under the agreement. Now the interpolation is as if

Rs.1,75,000/- was paid and 13 months was agreed

upon. In fact, careful reading of the agreement shows

that out of the balance amount, Rs.1,00,000/- has to

be paid within 13 months and balance amount has to

be paid within three months thereafter and before

registration. In fact in the legal notice issued, the

reference is only to the payment of Rs.1,75,000/- and

13 months. Absolutely, there is no reference to the

subsequent clauses which are in writing. Similarly, in

the plaint, there is no reference to that condition. It

clearly demonstrates the interpolations of the suit

document. It is settled law that once there is

interpolation, the document gets vitiated and the

question of enforcing an agreement would not arise.

He also submits that a specific performance being the

discretionary relief, the conduct of the parties assumes

importance.

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(b) When the suit was filed on 22.10.1993, in pursuance

of the sale deed executed in favour the defendants 3

and 4, mutation entry had been made on 20.9.1993.

The plaintiff produces the RTC’s of the year 1990

which shows the 1st defendant as the owner. If the

plaintiff had the RTC records on the date of the suit, it

would have shown the purchaser’s name. The plaintiff

files a suit and also files an application for temporary

injunction and the trial Court acting on the said RTCs

produced, grants an injunction restraining the 1st

defendant from alienating the property by which time,

1st defendant had already alienated the property in

favour of defendants 2 to 4 and therefore, he submits

that this conduct of the plaintiff disentitles him from

seeking the discretionary relief.

(c) When the 1st defendant filed the written statement on

20.2.1994, it is categorically mentioned that she has

already sold the property in favour of defendants 2 to

4, but still the plaintiff did not chose to implead the

30

defendants. It is the 2nd defendant who filed the

application on 27.11.1995 which was allowed. Still,

the plaintiff did not attempt to implead defendants 3

and 4. Immediately thereafter, defendant No.2 filed

written statement with reference to the sale deed in

favour of defendants 3 and 4. It is only on 2.8.1999

when plaintiff filed an application for impleadment of

defendants 3 and 4, by which time, nearly six years

had elapsed. Defendants 3 and 4 were impleaded on

6.8.2000 and therefore, the suit against them is clearly

barred by the law of limitation.

(d) The defendants have specifically contended that they

are the bonafide purchasers for valuable

consideration. In the entire plaint, there is no

allegation that the defendants 3 and 4 were aware of

the agreement. Even otherwise, the evidence on

record shows that the plaintiff was totally unaware of

the sale deeds and as such, the sale in favour of

defendants 3 and 4 is not vitiated and they are not

31

bound to execute the sale deed in favour of the

plaintiff.

(e) Though the agreement of sale is dated 5.11.1990, the

legal notice was issued on 19.1.1993 nearly after two

years. There is absolutely no material on record to

show that the plaintiff made an attempt to complete

the transactions during the stipulated period. It is

because the said agreement of sale has been cancelled

by an agreement dated 19.8.1992. Therefore, the suit

filed at a belated stage even against the 1st defendant,

though in time, is liable to be dismissed on the ground

of delay and laches.

(f) Lastly it was contended that there is absolutely no

evidence on record to show that the plaintiff was ready

and willing to perform his part of the contract, he was

ready with the balance sale consideration and he

tendered balance sale consideration to the defendants.

The trial Court has not properly appreciated the

32

evidence on record and has blindly decreed the suit of

the plaintiff which requires to be interfered with.

15. Sri Udaya Holla, learned Senior Counsel

appearing for the 2nd defendant adopting the aforesaid

arguments contended that the 2nd defendant has purchased

the ‘A’ schedule property for valuable consideration. She

was put in possession. The sale was effected after the

cancellation of agreement of sale. The very fact that she was

not made a party by the plaintiff and she had to get herself

impleaded and contest the claim shows lack of bonafides on

the part of the plaintiff. He submits that the suit agreement

is tampered, interpolated and the said agreement is also

cancelled. Therefore, the decree for specific performance is

unsustainable in law.

16. Per contra, Sri S. Vijaya Shankar, learned

senior Counsel appearing for the plaintiff submitted that

execution of suit agreement is admitted. It is true that there

33

are some corrections. It is after the corrections 1st defendant

has affixed her signature. Plaintiff and his two witnesses

have spoken about these corrections and consent of the 1st

defendant. Therefore, merely because the document was

corrected, it does not vitiate the agreement and the case of

tampering the document is not proved. The 1st defendant

who set up the plea has not entered the witness box.

Similarly, the period agreed upon is 13 months. In fact, in

reply notice by the defendants, it is clearly mentioned that

the 13 months is the period agreed upon and therefore, this

story of tampering is without any substance. Though a plea

of cancellation was set up in the written statement of the 1st

defendant, which was reiterated by the other defendants, the

said cancellation deed was not produced in evidence.

Plaintiff has specifically denied the execution of the

cancellation agreement. No witnesses who have attested the

cancellation deed have been examined and therefore, the

said cancellation deed is not proved. In the suit agreement,

there is a specific reference that the plaintiff was put in

34

possession of the property. Therefore, Section 53A of the

Transfer of Property Act is attracted. That apart in Exs.P16

and P17-notices issued by the revenue authorities to the

parties before surveying the property and fixing the

boundaries, it is clearly mentioned that the plaintiff is in

possession of the property on the date it was issued. Even

the evidence of the defendants in this case shows that they

are not in possession. In those circumstances, the finding

recorded by the trial Court that the plaintiff is in possession

of the property cannot be found fault with. Defendants 3 and

4 claim that they are the bonafide purchasers. The evidence

on record shows that before purchasing the property, they

did not go near the land, they did not enquire who were in

possession of the property. The said fact shows the

negligence and lack of good faith of the defendants and

therefore, it cannot be said that they are the bonafide

purchasers for valuable consideration. The trial Court was

justified in decreeing the suit even against them.

35

17. He also submitted that, before this Court an

application is filed under Section 21(1) of the Limitation Act

along with an application under Section 5 of the Limitation

Act to condone the delay in filing the said application.

Though in law the impleading applicants are considered as

parties to the suit from the day of service of notice of the

impleading application, in a given case, the Court has ample

power to condone the delay and treat the suit having been

filed against them in time. In the facts of the case, the case

is made out for condoning the delay and to treat the suit

against the defendants 3 and 4 having been filed in time. He

submits that for the aforesaid reasons, no case for

interference is made out.

POINTS FOR CONSIDERATION

18. In the light of the aforesaid facts and the rival

contentions, the points that arise for our consideration are

as under : -

36

(1) Whether the suit agreement of sale is interpolated

so as to render it void and unenforceable?

(2) Whether the plaintiff was ready and willing to

perform his part of the contract?

(3) Whether defendants 3 and 4 are bona fide

purchasers for valuable consideration without

notice of the agreement of sale in favour of the

plaintiff?

(4) Whether the application filed by the plaintiff in the

Appellate Court under Order XXI Rule (2) of CPC,

is maintainable and requires to be allowed or

whether the suit of the plaintiff is barred by

limitation in so far as defendants 3 and 4 are

concerned?

(5) Whether the suit of the plaintiff is liable to be

dismissed on the ground of delay and latches?

37

POINT No. (1) - EFFECT OF MATERIAL ALTERATION

19. The suit is one for specific performance of the

agreement of sale dated 5.11.1990. The consideration

agreed upon for sale is Rs.3,47,100/-. The extent of land

agreed to be sold is 28 acres 37 guntas, at the rate of

Rs.12,000/- per acre. The execution of this agreement is not

in dispute. What is contended is that in the agreement

material alteration has been made to which the vendor has

not agreed. Secondly, the said agreement is cancelled. It is

after such cancellation and after sale of the schedule

property to defendants 2 to 4 the agreement is altered and

on that basis the suit is filed. Therefore, the suit agreement

is unenforceable. The effect of making such an alteration

without the consent of the party bound is exactly the same

as that of cancelling the deed. The plaintiff has not

mentioned in the plaint about these alterations. However, in

his evidence he admits that the writing in the hand

happened in the presence of the first defendant. The first

defendant has consented for the same and accordingly she

38

has also signed. Therefore, the interpolation in Ex.P1-the

agreement of sale is admitted. Therefore, the question is,

whether the interpolation took place prior to the execution of

the agreement of sale and whether the first defendant has

given her consent for such alteration. Further, whether the

said alteration is a material alteration so as to render the

deed void, if it is proved that the alteration has been made

without the consent of the first party.

20. In order to prove this agreement with alteration,

plaintiff in his evidence in chief has not whispered a word

about this alteration. It is only in the cross-examination at

para 8 after identifying the agreement which is marked as

Ex.P1 admits that in the first page of the agreement there is

a writing in the pen and it was written in the presence of the

first defendant. He has not made any corrections. The said

writing/correction was marked as Ex.P1(a). He asserts that

the said writing was done in the presence of the first

defendant. First defendant has affixed his signature

39

consenting for the said correction. He identifies her LTM as

Ex.P1(b). Her son one Ashwathappa also has signed at

Ex.P1(c). One Annayappa has affixed his signature at

Ex.P1(d), Srinivasagouda at Ex.P1(e) and K.Govindaraju at

Ex.P1(f). He further admits that Ex.P1 was got prepared and

written by the first defendant’s son by name Ashwathappa

who is examined in this case as DW1. Before the first

defendant affixed her signature to Ex.P1, it was read over to

her. One Swamy, advocate, also has signed the said Ex.P1

as the scribe. She has deposed that the first defendant’s son

is the author of that writing in the pen.

21. In support of his case, he has examined PW2-

Narayanappa. He has stated in the examination in chief that

the writing in ink was there before the first defendant

executed Ex.P1. In the cross-examination, he states that

Ex.P1 is in handwriting. He has signed the said document.

Thereafter, he goes back on that statement and states that

Ex.P1 is type written. In the cross-examination, he also

40

asserts that Ex.P1 was got typed by DW1 the first

defendant’s son.

22. PW3-one Sri C. M. Srinivasagouda, another

witness to Ex.P1, admits that, in Ex.P1 there is a writing in

ink. It is after the said writing the first defendant has affixed

her signature. She has affixed her signature at the place

where the correction is made. The first defendant after

getting the document read over and agreeing to the contents

of the same has affixed her signature. In the cross-

examination he deposes that he is not aware where the

Ex.P1 was typed.

23. DW1-the son of the first defendant has been

examined as the Power of Attorney Holder of the first

defendant. In his examination in chief he has stated that,

when the transaction took place, three months was the

period mentioned for completion of the transaction. Because

the first defendant did not find time to complete the sale

41

transaction, it became 13 months. He admits in his cross-

examination that there are corrections in Ex.P1. His mother

has affixed her signature. Nowhere in his evidence, he has

stated that he has made the correction. None of these

witnesses who are said to be present at the time of execution

of Ex.P1 though admit the corrections in Ex.P1 in ink in

handwriting, they do not whisper about who is the author of

these alterations and corrections. If the evidence of DW1 is

to be believed, the period stipulated for completion of the

sale transaction is three months. It is because they could

not find time to complete the transaction, it became 13

months. Therefore, the said alteration was not there on the

day the document was executed, but the alteration obviously

is made after the expiry of the three months period as they

could not complete the transaction. If that evidence is to be

believed, then the evidence of PWs 1 to 3 falls to ground.

24. It is an admitted fact that the first defendant is

an illiterate lady. She has affixed her LTM. The plaintiff says

42

he has studied up to 7th standard. The document bears the

seal of one Kandaswamy, B.Com, B.L, Advocate and above

the seal it is written as “drafted by me”. The plaintiff also

admits to this fact, i.e., Ex.P1 is drafted by an advocate. The

document is in Kannada. It is typed. The evidence of all

these witnesses show that it is DW1, the son of the first

defendant, who got this agreement prepared, typed and

brought for execution. The advocate who drafted the

agreement was not present at the time of execution of the

agreement. If any corrections were to be made in the said

agreement before execution and if he was present, being the

draftsman of the agreement, the corrections should have

been in his handwriting. It is nobody's case that the writing

found in Ex.P1 is in his handwriting. Though PW1 in his

evidence says that the said writing is in the handwriting of

DW1, DW1 has not stated so. Therefore, who is the author

of this corrections is a mystery, which is not explained. The

argument is that before the first defendant put her LTM to

the document, this correction was made with her consent.

43

She, in token of her consent, has affixed her LTM near the

said corrections. Therefore, it is immaterial who made the

corrections, but she is a consenting party to the corrections

and therefore the said corrections do not vitiate the

document.

25. In order to appreciate this contention, it is

necessary to look at the original agreement and find out

where this LTM is put. Is it a LTM put in token of

consenting for corrections or is it a LTM which is put in the

normal course. The agreement runs to 3 pages. In the first

page, at the bottom on the right side, we find there is a LTM

of Smt. Hanumakka. The LTM is not clearly visible. If that

should be construed as execution of the agreement, in page

No. 2 we do not find the LTM of Hanumakka at the bottom

on the right side. However, we find one LTM in the left

margin of page No.1 at the center. The place where that LTM

is put is not the place where this correction in ink is made.

The said LTM is put roughly after 8 lines from the correction

44

in the center of the page. If a LTM in the center of the page

is to be construed as a consent for the corrections, in page

No.2 also we find one such LTM where there are no

corrections. If LTMs are taken in the left margin in the

center even at the place where there are no corrections, the

only inference that could be drawn is that those LTMs is the

proof of execution of the document. In fact, the LTMs found

at the left margin of page No.1, page No.2 and at the end of

writing at page No.3 are alike, whereas the so called LTM of

the first defendant at the bottom of page No.1 on the right

side has no similarity with the same. The evidence of DW1,

the son of the first defendant makes it clear, that the

alteration is made after the expiry of three months period as

they could not complete the transaction within three

months. Therefore, it is not possible to hold from the

aforesaid undisputed material on record that the LTM on the

left margin in page No.1 is affixed by the first defendant in

token of her consent for the corrections made in hand and

ink, at the time of execution of the agreement.

45

26. Then, let us see what are the corrections, how

did the document read before the corrections and how does

the document read after corrections and does it amount to

material alteration. What is typed in the document discloses

that, “out of Rs.3,47,100/- this day in the presence of the

witnesses Rs.75,000/- has been received as advance. The

balance sale consideration of Rs.2,72,100/- would be paid in

about 6 months from the date of execution of the agreement.”

Thereafter, at the cost of the vendee he is entitled to get the

document registered. If he commits breach, the advance

amount will not be refunded. The agreement also stands

cancelled. The interpolation is of two types. One is by typing.

Second one is by hand writing. A careful perusal of the

agreement shows that, before the word “75,000-00”, “1”

appears to have been typed subsequently. Thereafter, after

the word “75,000-00” the word “Lakh” has been typed

subsequently and in the next line the word “the” has been

typed subsequently. The resultant position is, originally it

was mentioned that 75,000-00 has been received as

46

advance. In the next line when the word “1,72,100-00” is

mentioned in Kannada, it is typed as “1,72,000-00”.

Whereas, in the earlier portion, the word “1,00,000-00” is

conspicuously missing and the word used is “Lakh”. This is

an interpolation by typing. Then we have the interpolation

in ink. The word “6” has been struck off. In its place “13” is

mentioned in Kannada language. In the bracket “3” is

mentioned in writing and in the bracket also “3” is

mentioned. Below that also “3” in writing and “3” in words

are mentioned. After mentioning the same, again there is a

interpolation mentioning in Kannada “Hadi” meaning “13”

and “1” is added which is clearly visible because it is beyond

the circle. Now, with the correction in ink it reads as

under:-

“Within 13 months 1,00,000-00 is to be paid and

the balance amount should be paid within 3

months”.

47

27. In other words, the time stipulated for

completing the transaction is 16 months and not 13 months

as contended by the plaintiff. In fact, this last alteration read

properly would make no sense. In one breadth it says that

Rs.1,00,000/- is to be paid within 13 months. In another

breadth it means after paying Rs.1,00,000/-, balance

amount is to be paid within 3 months and then document is

to be registered. It only shows that even while making this

alteration they are not clear about what they really intend to

alter as those alterations appear to have been done in

installments. There is no coherence even in the alterations.

28. Now, in this background, we have to find out in

the first place whether this alteration is a material alteration.

In an agreement of sale, the material terms of the contract

are, the total consideration agreed upon, how the said

consideration is to be paid and the period within which the

consideration is to be paid. There is no alteration in the

instant case about the total consideration which is

48

Rs.3,47,100/-. Before this alteration what is typed is, Rs.

75,000/- is paid as advance. If that Rs. 75,000/- is altered

as Rs. 1,75,000/- certainly it makes a lot of difference and if

it is an alteration without the consent of the first defendant,

it is a material alteration. Similarly, if the balance amount

payable is Rs.2,72,100/- and if it is now altered to mean

Rs.1,72,100/-, it is yet another material alteration. Further,

as typed 6 months is the period prescribed for completing

the sale transaction. If three months is the period agreed

upon in place of 6 months which appears to be the case and

if it is altered as 13 months, it is yet another material

alteration. Therefore, unless the plaintiff proves that the

first defendant has consented for these material alterations,

the agreement gets vitiated, the said alterations render it

void and in law it has the effect of cancelling the deed of sale.

29. It is in this context it is necessary to look at the

conduct of the parties after the execution of this agreement.

Ex.P5 is the legal notice issued on behalf of the plaintiff

49

before filing the suit. In the legal notice there is no whisper

about this alteration. On the contrary it is stated that a sum

of Rs.1,75,000/- is paid by the plaintiff to the defendant and

it is mutually agreed that the sale transaction should be

completed within 13 months. The plaintiff approached the

first defendant more than 10 times and she went on evading

the execution of the document. The notice is dated

19.1.1993. If this alteration was there in the document on

the day the legal notice is issued as the recitals with this

correction stand, the plaintiff ought to have paid a sum of

Rs.1,00,000/- within 13 months and the balance amount

had to be paid within 3 months thereafter at the time of

registration. There is no whisper about the agreement to pay

Rs.1,00,000/- within 13 months from the date of the

agreement or the said amount being tendered to the first

defendant. Similarly, one more notice came to be issued on

21.1.1993 as per Ex.P8. Even in this notice there is no

whisper about the obligation to pay Rs.1,00,000/- within 13

months from the date of the agreement and obligation to pay

50

the balance amount within 3 months thereafter and at the

time of registration. Therefore, it is clear that the aforesaid

corrections and alterations are made subsequent to the said

legal notice and before filing of the suit.

30. In fact, after service of summons, the defendant

has entered appearance and she has filed the written

statement. In the written statement she has categorically

stated that it is false to say that the plaintiff paid a sum of

Rs.1,75,000/- on the date of the agreement. It is her specific

case that he paid only a sum of Rs.75,000/- under the

agreement and not Rs.1,75,000/-. The plaintiff inserted

Rs.1,00,000/- in between the words, thereby tampering the

valuable agreement. Further she has stated that the time

agreed was only three months from the date of the

agreement, but, the plaintiff failed to obtain sale deed within

the stipulated period in spite of repeated demands and

requests made by the defendant to obtain the sale deed.

Further, the plaintiff manipulated and tampered the

51

documents by inserting 13 months as the period agreed

upon in place of 3 months and therefore at the earliest point

of time when the said tampering was brought to her notice,

she has made her stand very clear. This assumes

importance, because she has not entered the witness box.

She has executed Power of Attorney to her son DW1 who has

deposed before the Court giving a go-bye to the stand taken

by his mother. In fact, he admits that 3 months was the

period prescribed for completing the sale transaction. As

they could not complete the sale transaction it became 13

months. Therefore, the evidence on record shows that the

period agreed upon is 3 months. It is altered subsequently.

It is altered according to DW1 obviously after the period of 3

months when they could not complete the sale transaction.

Therefore, the argument that on the day the agreement was

executed, these alterations, corrections in handwriting and

in ink were very much in existence and accepting the said

corrections the first defendant executed the agreement is

disproved. Coupled with the fact, as to who is the author is

52

not spoken to. When the plaintiff says it is DW1 who is the

author of the corrections, DW1 has not stated so and even

there is no suggestion to him to that effect, though on the

day he was giving evidence he has been won over by the

plaintiff.

31. In this background, the question that arises for

our consideration is, what is a material alteration and what

is the effect of such alteration in a deed.

32. In paragraph 1378 of Volume 12 of Halsbury's Laws

of England (Fourth Edition) it is observed as under:-

"if an alteration (by erasure, interlineation, or

otherwise) is made in a material part of a deed,

after its execution, by or with the consent of any

party to or person entitled, under it, but without

the consent of the party or parties liable under it,

the deed is rendered void from the time of the

alteration so as to prevent the person who has

made or authorised the alteration, and those

claiming under him, from putting the deed in suit

53

to enforce against an party bound by it, who did

not consent to the alteration, any obligation,

covenant, or promise thereby undertaken or

made.

. A material alteration, according to this

authoritative work, is on which varies the rights,

liabilities, or legal position of the parties as

ascertained by the deed in its original state, or

otherwise varies the legal effect of the instrument

as originally expressed, or reduces to certainty

some provision which was originally

unascertained and a such void, or which may

otherwise prejudice the party bound by the deed

as originally executed.

The effect of making such an alteration

without the consent of the party bound is exactly

the same as that of cancelling the deed.”

33. The Privy Council in NATHU LAL vs.

MUSSAMAT GOMTI KAUR [AIR 1940 SC 160] has held as

under : -

54

“A deed is nothing more than an instrument

or agreement under seal; and the principle of

those cases is that any alternation in a material

part of any instrument or agreement avoids it,

because it thereby ceases to be the same

instrument.”

Again the Judicial Committee observed as

under:-

“A material alteration has been defined in

the rule as one which varies the rights, liabilities

or legal position of the parties ascertained by the

deed, etc.,” and after applying that test they held

that the alteration in that case was not material

in the sense of altering the rights, liabilities or

legal position of the parties or the legal effect of

the document.”

34. The Supreme Court in the case of VALIAMMAL

RANGARAO RAMACHAR vs MUTHUKUMARASWAMY

GOUNDER AND ANOTHER [(1982) 3 SCC 508] held that, a

motivated interpolation in a solemn document completely

vitiates the document. Common course of human conduct has

55

uptil now indicated to us that solemn agreements have been

violated when more price is offered, but here is a breach

attempted for a lesser price and by a fairly crude attempt

which stares in the face. The interpolation is motivated

inasmuch as when translated it meant that the plaintiff who

seeks specific performance of his contract was aware of and

had the knowledge of an agreement which the vendor

appears to have entered into with original defendant 2.

There was hardly any explanation about the interpolation

offered to the High Court and in fact none was forthcoming to

us also.

35. The Apex Court in the case of

LOONKARAN SETHIYA AND OTHERS vs. MR. IVAN

E. JOHN AND OTHERS, [AIR 1977)SC 336] after referring

to the aforesaid passage of the Halsburys Law of England

observed that:

“a material alteration is one which varies the

rights, liabilities, or legal position of the parties,

as ascertained by the deed in its original state, or

56

otherwise varies the legal effect of the instrument

as originally expressed, or reduces to certainty

some provision which was originally

unascertained and as such void, or which may

otherwise prejudice the party bound by the deed

as originally executed. The effect of making such

an alteration without the consent of the party

bound is exactly the same as that of cancelling

the deed.”

After laying down the aforesaid law, applying the same

to the facts of that particular case it was observed as under:-

25. Now a comparison of Exh. A-I (produced by

the defendants first set) with Exh. 168 (produced

by the plaintiff) would show that besides the

obliteration of the word 'partner' from the

preamble as stated above, the plaintiff made two

other alterations in Exh.168. Originally, the

second proviso to sub-clause (8) of clause 1 of the

agreement stood as given in Exh. A-1 ran thus:-

"The payment for purchase of cotton will be made

on the first (emphasis ours) day of its receipt in

the mills of the partners."

57

26. In Exh 168, however, the word 'first' has

been changed into 'tenth' thus making it read as

"the payment for purchase of cotton will be made

on the tenth (emphasis ours) day of its receipt in

the mills of the partners."

27. The third alteration is no less important. As

would be evident from Exh. A-1, sub-clause (3) of

clause 12 of the agreement as actually drawn up

between the parties read as follows:-

“A commission of Rupee one percent

on value of all sales of products of the

above three spinning mills, viz. yarn, and

newar, whether sold directly by the

partners or otherwise but delivered and

produced during the currency of this

agreement.

28. After the alteration, the clause has been

made to read as follows on Exh.168:-

"A commission of Rupee one percent on value

of all sales of products of the above three

spinning mills, viz. yarn, and newar, whether

sold directly by the partners or otherwise but

58

delivered or produced during the currency of

this agreement."

29. As a result of the last change, the word

'and' has been substituted by the word 'or'.

30. As the above mentioned alterations

substantially vary the rights and liabilities as

also the legal position of the parties, they cannot

be held to be anything but material alterations

and since they have been made without the

consent of the defendants first set, they have the

effect of cancelling the deed. Question No.5 is,

therefore, answered in the affirmative.”

36. Therefore, once the evidence on record shows

that a material alteration is made in a deed, after its

execution, without the consent of the party liable under it,

the deed is rendered void from the time of the alteration so

as to prevent the person who has made or authorised the

alteration from putting the deed in suit to enforce against a

party bound by it, who did not consent to the alteration, any

obligation, covenant, or promise thereby undertaken or made

59

because the material alteration varies the rights, liabilities

and legal position of the parties as ascertained by the deed

in its original state. It varies the legal effect of the

instrument as originally expressed. It prejudices the party

bound by the deed as originally executed. The effect of

making such an alteration without the consent of the party

bound is exactly the same as that of cancelling the deed.

Therefore, as the above mentioned alteration substantially

vary the rights and liabilities as also the legal position of the

parties, they cannot be held to be anything, but material

alterations and since they have been made without the

consent of the first defendant, it has the effect of cancelling

the deed and it is unenforceable, as on the date of the suit in

law as the deed has become void and it is non est, i.e., not in

existence.

37. Dealing with this interpolation, the trial Court

held that, the first defendant did not step into the witness

box. On the other hand, she has examined the Power of

60

Attorney Holder who is her own son DW-1. He has clearly

deposed that on the date of the agreement it was settled that

the sale deed has to be executed within 3 months. Since

the required time for execution of the sale deed was extended

to 13 months, according to the learned trial Judge this

evidence of DW1 fully supports the case of the plaintiff, but

in no way helps the defence of defendant No.1. In the

evidence of PWs 1 to 3 they have stated that some

corrections were made with the pen in Ex.P1 agreement and

defendant No.1 has put her LTM on the said correction and

the said fact is also admitted by DW1 in his cross-

examination. In view of this clear admission by DW1, the

question of tampering by the plaintiff either consideration

amount or time fixed for execution of the sale deed will not

survive. On going through Ex.P1, undoubtedly there are

some corrections in Ex.P1, but those corrections are attested

by defendant No.1 by putting her LTM. So, under such

circumstances, Ex.P1 is not a tampered document. On the

other hand, in view of the admission of DW1 in his cross-

61

examination, it has to be held that Ex.P1 is the genuine

document and there are no material alterations in Ex.P1. In

view of the evidence of PWs1 to 3 and DW1 the stand taken

by the first defendant that there are material alterations in

Ex.P1 must fall to the ground and the said allegations of the

first defendant are baseless.

38. This finding is contrary to both oral and

documentary evidence on record. Firstly, DW1 has clearly

deposed that 3 months was the period prescribed for

completing the sale transaction. Further, he has specifically

deposed that as they could not complete the sale transaction

it became 13 months. Therefore, on the day the agreement

was executed, the period prescribed was only 3 months and

not 13 months. It is only after the expiry of 3 months when

they were unable to complete the transaction it became 13

months. Therefore, this interpolation of 13 months

introduced in the suit document is only after the expiry of 3

months period and it was not there on the day the

62

agreement was executed. This aspect was not noticed by the

trial Judge. This evidence of DW1 on which the plaintiff

relies on clearly establishes the case of interpolation.

39. Secondly, the plaintiff has not produced any

independent evidence to show the payment of Rs.1,75,000/-.

When the defendants have clearly demonstrated the

interpolation and now that the interpolation is also admitted

by the plaintiff and his witnesses and the finding of the trial

Court also is to that effect, the burden of showing that in

terms of the interpolation, the plaintiff paid Rs.1,75,000/- to

the first defendant was squarely on him. Except the bear

assertion in the oral evidence of PW1 coupled with the

aforesaid interpolated recital nothing else is produced before

the Court to substantiate the contention that either the

interpolation was acted upon or a sum of Rs.1,75,000/- is

paid. The trial Judge has not carefully scrutinized the suit

document. It shows not only the interpolation in

handwriting, there is an interpolation even by way of

63

typewriting. If the evidence of the plaintiff and his witnesses

is to be accepted, the first defendant has affixed her LTM

approving this interpolation on the left side margin. A

perusal of the document shows her LTM in the first page is

not found near the lines where this interpolation is made. It

is about 8 lines above that where there is no interpolation. If

affixing a LTM on the side margin of a page is proof of

acceptance of the interpolation, we find such a LTM in the

second page also in the left margin where there is no

interpolation at all. Therefore, this argument that this

interpolation took place even before execution and the first

defendant affixed her LTM in token of acceptance of this

interpolation falls to ground. This aspect also has not been

seen by the trial Judge. Therefore, the finding recorded by

the trial Court that there is no interpolation and these

interpolations are all done prior to the execution of the

document and that the first defendant has consented for

such interpolation by affixing LTM is contrary to the oral and

documentary evidence on record.

64

POINT NO.2 - READINESS AND WILLINGNESS

40. In a suit for specific performance the

plaintiff should not only plead and prove the terms of the

agreement, but also plead and prove his readiness and

willingness to perform his obligation under the contract in

terms of the contract.

41. Section 16 of the Specific Relief Act reads as

under: -

“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 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

65

(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 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.

42. This provision has been the subject matter of

interpretation by the Apex Court on several occasions:

66

43. The law on the point is well settled. The

Supreme Court in the case of N.P.THIRUGNANAM (DEAD)

BY LRS vs DR R.JAGAN MOHAN RAO AND OTHERS [(1995)

5 SCC 115] has held as under: -

“5. It is settled law that remedy for

specific performance is an equitable remedy and

is in the discretion of the court, which discretion

requires to be exercised according to settled

principles of law and not arbitrarily as

adumbrated under Section 20 of the Specific

Relief Act 1963 (for short, 'the Act'). Under Section

20, the court is not bound to grant the relief just

because there was valid agreement of sale.

Section 16(c) of the Act envisages that plaintiff

must plead and prove that he had 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 those terms the

performance of which has been prevented or

waived by the defendant. The continuous

readiness and willingness on the part of the

plaintiff is a condition precedent to grant the relief

of specific performance. This circumstance is

67

material and relevant and is required to be

considered by the court while granting or refusing

to grant the relief. If the plaintiff fails to either

aver or prove the same, he must fail. To adjudge

whether the plaintiff is ready and willing to

perform his part of the contract, the court must

take into consideration the conduct of the plaintiff

prior and subsequent to the filing of the suit along

with other attending circumstances. The amount

of consideration which he has to pay to the

defendant must of necessity be proved to be

available. Right from the date of the execution till

date of the decree he must prove that he is ready

and has always been willing to perform his part

of the contract. As stated, the factum of his

readiness and willingness to perform his part of

the contract is to be adjudged with reference to

the conduct of the party and the attending

circumstances. The court may infer from the facts

and circumstances whether the plaintiff was

ready and was always ready and willing to

perform his part of contract.”

68

44. The Supreme Court in the case of HIS

HOLINESS ACHARYA SWAMI GANESH DASSJI vs SITA

RAM THAPAR [(1996) 4 SCC 526] has held as under: -

“2. There is a distinction between readiness to

perform the contract and willingness to perform

the contract. By readiness may be meant the

capacity of the plaintiff to perform the contract

which includes his financial position to pay the

purchase price. For contract, the conduct has to

be properly scrutinised. There is no documentary

proof that the plaintiff had ever funds to pay the

balance of consideration. Assuming that he had

the funds, he has to prove his willingness to

perform his part of the contract. According to the

terms of the agreement, the plaintiff was to

supply the draft sale deed to the defendant

within 7 days of the execution of the agreement,

i.e., by 27.2.1975. The draft sale deed was not

returned after being duly approved by the

petitioner. The factum of readiness and

willingness to perform plaintiff's part of the party

and the attending circumstances. The court may

infer from the facts and circumstances whether

the plaintiff was ready and was always ready

69

and willing to perform his part of the contract. The

facts of this case would amply demonstrate that

the petitioner/plaintiff was not ready to perform

his part of the contract as he had no financial

capacity to pay the consideration in cash as

contracted and intended to abide for the time

which disentitles him as time is the essence of the

contract.”

45. The Supreme Court in the case of RAM AWADH

(DEAD) BY LRS AND OTHERS Vs ACHHAIBAR DUBEY AND

ANOTHER [2000 (2) SCC 428] interpreting section 16 of the

Specific Performance Act 1963 has held as under: :

“6. The obligation imposed by Section 16 is

upon the court not to grant specific performance to

a plaintiff who has not met the requirements of

clauses (a), (b) and (c) thereof. A court may not,

therefore, grant to a plaintiff who has failed to

aver and to prove that he has performed or has

always been ready and willing to perform his

part of the agreement the specific performance

whereof he seeks. There is, therefore, no question

of the plea being available to one defendant and

70

not to another. It is open to any defendant to

contend and establish that the mandatory

requirement of Section 16(c) has not been

complied with and it is for the court to determine

whether it has or has not been complied with

and, depending upon its conclusion, decree or

decline to decree the suit. We are of the view that

the decision in Jugraj Singh's case is erroneous.

46. The Apex Court in the case of P.D'Souza v.

Shondrilo Naidu [ 2004 (6) SCC 649] has held as under :

“It is indisputable that in a suit for specific

performance of contract the plaintiff must

establish his readiness and willingness to

perform his part of the contract. The readiness

and willingness on the part of the plaintiff to

perform his part of contract would also depend

upon the question as to whether the defendant

did everything which was required of him to be

done in terms of the agreement for sale. The

question as to whether the onus was discharged

by the plaintiff or not will depend upon the facts

71

and circumstances of each case. No straitjacket

formula can be laid down in this behalf.”

47. The Supreme Court in the case of ANIGLASE

YOHANNAN V. RAMLATHA (2005) 7 SCC 534 [SCC p 540,

para 12) has held as under:

“12. The basic principle behind Section 16(c) read

with Explanation (ii) is that any person seeking

benefit of the specific performance of contract

must manifest that his conduct has been

blemishless throughout entitling him to the

specific relief. The provision imposes a personal

bar. The Court is to grant relief on the basis of the

conduct of the person seeking relief. If the

pleadings manifest that the conduct of the

plaintiff entitles him to get the relief on perusal of

the plaint he should not be denied the relief.”

This Court further held that the averments

relating to readiness and willingness are not a

mathematical formula which should be expressed

in specific words and if the averments in the

plaint as a whole, do clearly indicate the

72

readiness and willingness of the plaintiff to fulfil

his part of the obligations under the contract, the

fact that the wording was different, will not

militate against the readiness and willingness of

the plaintiff. The above observations cannot be

construed as requiring only a pleading in regard

to readiness and willingness and not `proof'

relating to readiness and willingness. In fact, in

the very next para, this Court clarified that

Section 16(c) of the Act mandates the plaintiff to

aver in the plaint and establish the fact by

evidence aliunde that he has always been ready

and willing to perform his part of the contract.

Therefore, the decision merely reiterates the need

for both pleadings and proof in regard to

readiness and willingness of the plaintiff.

48. The Supreme Court in the case of M.M.S.

INVESTMENTS, MADURAI AND OTHERS Vs V.VEERAPPAN

AND OTHERS [2007 AIR SCW 4809] has held as under:-

“5. Questioning the plea of readiness and

willingness is a concept relatable to an

agreement. After conveyance the question of

73

readiness and willingness is really not relevant.

Therefore, the provision of the Specific Relief Act,

1963 (in short the 'Act') is not applicable. It is to

be noted that the decision in Ram Awadh's case

(supra) relates to a case where there was only

an agreement. After the conveyance, the only

question to be adjudicated is whether the

purchaser was a bona fide purchaser for value

without notice. In the present case the only issue

that can be adjudicated is whether the

appellants were bona fide purchasers for value

without notice. The question whether the

appellants were ready and willing is really of no

consequence. In Ram Awadh's case (supra) the

question of the effect of a completed sale was not

there. Therefore, that decision cannot have any

application so far as the present case is

concerned. Once there is a conveyance the

concept would be different and the primary relief

could be only cancellation.”

49. The Supreme Court in the case of AZHAR

SULTANA vs B. RAJAMANI AND OTHERS [AIR 2009 SC

2157] has held as under:-

74

“18. Section 16(c) of the Specific Relief Act, 1963

postulates continuous readiness and willingness

on the part of the plaintiff. It is a condition

precedent for obtaining a relief of grant of specific

performance of contract. The court, keeping in

view the fact that it exercises a discretionary

jurisdiction, would be entitled to take into

consideration as to whether the suit had been

filed within a reasonable time. What would be a

reasonable time would, however, depend upon

the facts and circumstances of each case. No

hard and fast law can be laid down therefor. The

conduct of the parties in this behalf would also

assume significance.

50. The Supreme Court in the case of MAN KAUR

(DEAD) BY LRS vs HARTAR SINGH SANGHA [(2010) 10

SCC 512] has held as under:-

“12. Section 16(c) of the Specific Relief Act 1963

(`Act' for short) bars the specific performance of a

contract in favour of a plaintiff

75

“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 (ii) to section 16 provides that for

purposes of clause (c) of section 16,

“the plaintiff must aver performance of, or

readiness and willingness to perform, the

contract according to its true construction.

Thus in a suit for specific performance, the

plaintiff should not only plead and prove the

terms of the agreement, but should also plead

and prove his readiness and willingness to

perform his obligations under the contract in

terms of the contract.

51. Thus, Section 16(c) of the Act envisages that

plaintiff must plead and prove that he had performed or has

76

always been ready and willing to perform the essential terms

of the contract which are to be performed by him, other than

those terms the performance of which has been prevented or

waived by the defendant. The continuous readiness and

willingness on the part of the plaintiff is a condition

precedent to grant the relief of specific performance. This

circumstance is material and relevant and is required to be

considered by the court while granting or refusing to grant

the relief. If the plaintiff fails to either aver or prove the same,

he must fail. The basic principle behind Section 16(c) read

with Explanation (ii) is that any person seeking benefit of the

specific performance of contract must manifest that his

conduct has been blemishless throughout entitling him to the

specific relief. The provision imposes a personal bar. The

Court is to grant relief on the basis of the conduct of the

person seeking relief.

52. Thus in a suit for specific performance, the

plaintiff should not only plead and prove the terms of the

77

agreement, but should also plead and prove his readiness

and willingness to perform his obligations under the contract

in terms of the contract. The continuous readiness and

willingness on the part of the plaintiff is a condition

precedent to grant the relief of specific performance. This

circumstance is material and relevant and is required to be

considered by the court while granting or refusing to grant

the relief. If the plaintiff fails to either aver or prove the same,

he must fail. It is indisputable that in a suit for specific

performance of contract, the plaintiff must establish his

readiness and willingness to perform his part of the contract.

The readiness and willingness on the part of the plaintiff to

perform his part of contract would also depend upon the

question as to whether the defendant did everything which

was required of him to be done in terms of the agreement for

sale. The question as to whether the onus was discharged by

the plaintiff or not will depend upon the facts and

circumstances of each case. No straitjacket formula can be

laid down in this behalf. To adjudge whether the plaintiff is

78

ready and willing to perform his part of the contract, the

court must take into consideration the conduct of the plaintiff

prior and subsequent to the filing of the suit along with other

attending circumstances. The amount of consideration which

he has to pay to the defendant must of necessity be proved to

be available. Right from the date of the execution till the date

of the decree, he must prove that he is ready and has always

been willing to perform his part of the contract. As stated, the

factum of his readiness and willingness to perform his part of

the contract is to be adjudged with reference to the conduct

of the party and the attending circumstances. The court may

infer from the facts and circumstances whether the plaintiff

was ready and was always ready and willing to perform his

part of contract.

53. Readiness and willingness refer to the state of

mind and conduct of the purchaser, as also his capacity and

preparedness on the other. One without the other is not

sufficient. There is a distinction between readiness to perform

79

the contract and willingness to perform the contract. By

readiness may be meant the capacity of the plaintiff to

perform the contract which includes his financial position to

pay the purchase price. In so far as willingness is concerned,

it reflects the mental attitude of the plaintiff to part with or

pay the balance sale consideration agreed to be paid. If there

are any reservations without any justification, or it is made

conditional on the happening of any event which is not

agreed upon, it shows his unwillingness to perform his part of

the contract. The obligation imposed by Section 16 is upon

the court not to grant specific performance to a plaintiff who

has not met the requirements of clauses (a), (b) and (c)

thereof. A court may not, therefore, grant to a plaintiff who

has failed to aver and to prove that he has performed or has

always been ready and willing to perform his part of the

agreement the specific performance whereof he seeks. There

is, therefore, no question of the plea being available to one

defendant and not to another. It is open to any defendant to

contend and establish that the mandatory requirement of

80

Section 16(c) has not been complied with and it is for the

court to determine whether it has or has not been complied

with.

54. Therefore, it is necessary to see whether there is

a proper plea which satisfies the requirement of Section 16(c)

of the Specific Relief Act, 1963. In para 4 it is stated that the

plaintiff was ever ready and willing to perform his part of the

obligation and he was ever ready with the balance sale

consideration amount and that the plaintiff requested the

defendant more than a dozen times to come and execute the

sale deed. In para 5 of the plaint the plaintiff has averred

that right from the date of execution of the agreement he was

ready to perform his part of the obligation as contemplated

under the agreement. On the other hand the defendant had

evaded to execute the sale deed on one pretext or the other.

The plaintiff during 1993 had got issued two legal notices to

the defendant. Though the defendant received the said

notice, she never replied nor complied.

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55. The 1st defendant has specifically traversed

these allegations. She specifically contends that the time

agreed was only three months from the date of the

agreement, but the plaintiff failed to obtain sale deed within

the stipulated period in spite of repeated demands and

requests made by the defendant to obtain the sale deed. The

averments in the plaint that the plaintiff was ready and

willing to perform his part of the obligation arising out of the

agreement is utter falsehood and are averred just for the

purpose of the suit. Further, it is stated that the averment

in para 5 of the plaint that the plaintiff was ever ready to

perform his part of the agreement and the defendant had

postponed the execution of the sale deed on one pretext or

the other was denied as false. It is because of these material

allegations in the plaint which were denied in the written

statement, issue No.5 in the suit was framed as under : -

“Whether the plaintiff proves that he was

always ready and willing to perform his part of

the contract and obtain a regular sale deed and it

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is the first defendant who has evaded to execute

the sale deed?”

Therefore, the plea of readiness and willingness to perform

the essential terms of the contract is found in the plaint.

56. In support of his plea of readiness and

willingness the plaintiff has adduced evidence. In his

evidence he stated that by employing bulldozers he got the

schedule land flattened, planted mango plants, dug a bore

well, installed a pump set at a cost of Rs.8,00,000-00. Within

13 months from the date of the agreement, he was in

possession of the balance amount payable under the

agreement of sale. He met the first defendant about 30 to

40 times in those 13 months. It is the first defendant who is

the cause for not completing the sale transaction. She was

expected to get the measurement of the property done which

she did not do. However, he was ready with the balance sale

consideration. Even on the day he was giving evidence he

was ready with the said amount. This is what he said in the

83

examination in chief. In cross-examination he deposed he

has no document to show that he was in possession of the

balance amount. However, he again asserted that he is in

possession of the balance sale consideration. Except this

evidence we have no evidence on record. In other words

except repeating these words that he was ready and willing

to perform his part of the contract in the witness box, he has

not placed any evidence on record to show that he was firstly

ready with the balance sale consideration and secondly he

was willing to part with the sale consideration to the first

defendant.

57. If the plaintiff after entering into the sale

agreement took possession of the schedule property under

the agreement and thereafter leveled the entire land by using

the bulldozers, dug a bore well, installed a pump set and

planted mango trees and spent nearly Rs.8,00,000-00

towards these expenses which is twice the amount of the

sale consideration, he should have produced evidence to

84

substantiate this fact. If he had employed a bulldozer to

level the entire land he should have paid money to the

owner of the bulldozer and obtained receipts even if cash

payment is made. Similarly, if a bore well is dug, there

should have been evidence to substantiate the said fact. If a

pump set had been installed, he should have had a receipt

evidencing the purchase of the said pump set. If he has

fenced the land, again there should be a receipt to show the

purchase of barbed wire because the land to be fenced is

about 28 acres 37 guntas. Except the oral assertion,

absolutely no scrap of paper is produced to substantiate this

fact. He has not said where he had kept that money. In

these days it is very difficult to keep so much cash in the

house. If he was ready with the balance sale consideration

and approached the 1st defendant 30 to 40 times in those 13

months period as spoken to by him, he could not have kept

the cash in the house. If he was really interested in

purchasing the property or at least when he issued a legal

notice and filed a suit, he would have deposited the amount

85

in some bank and could have produced documents showing

that he was ready with the balance sale consideration. At

least on the day he issued the legal notice or he filed the suit

or at least on the day he was giving evidence, he should have

demonstrated that he was ready with the balance sale

consideration. Absolutely no effort is made in this direction.

58. The plaintiff in order to succeed has to prove the

continuous readiness and willingness from the date of the

agreement till the date of hearing of the case. To adjudge

whether the plaintiff is ready and willing to perform his part

of the contract, the Court must take into consideration the

conduct of the plaintiff prior and subsequent to the filing of

the suit along with other attending circumstances. His

conduct should be blemishless throughout entitling him to

the specific relief. The mere assertion in the witness box

that he is ready and willing to perform his part of the

contract or he is ready with the balance sale consideration

would not meet the requirements of law. Seen from this

86

angle if we look into the evidence on record in the first place,

there is no evidence apart from the interpolated recital in the

suit agreement that he has paid Rs.1,75,000/- under the

agreement. The first defendant has admitted the receipt of

Rs.75,000/-. She has specifically denied the payment of

Rs.1,00,000/- and has contended that such a writing is an

interpolation. Therefore, in the first instance it was

necessary for the plaintiff to prove by acceptable evidence

other than the recital in the agreement that a sum of

Rs.1,00,000/- was paid in addition to Rs.75,000/- on

execution of the agreement of sale. Subsequently, 13

months is the period prescribed according to the plaintiff to

pay the balance sale consideration. Absolutely no evidence

is adduced to show that in these 13 months period the

plaintiff was ready with the balance sale consideration. It is

the specific case of the plaintiff that about 30 to 40 times

plaintiff approached the first defendant with the balance

consideration and requested her to execute the sale deed.

No evidence is coming forward to prove this fact of plaintiff

87

approaching defendant 30 to 40 times and during the said

period he had the balance sale consideration in his hand.

Two legal notices have been issued asserting readiness and

willingness to pay the sale consideration. But, no evidence

is adduced to show that on the day when these legal notices

were issued, the plaintiff was ready with the balance sale

consideration. Even after the filing of the suit till the day he

gave evidence in Court, no evidence is adduced to show

during that period that he was ready with the balance sale

consideration. It is the specific case of the plaintiff which is

averred in the plaint and also spoken to in his evidence that

after the agreement of sale, he has spent Rs.8,00,000/- for

the purpose of flattening the land, digging bore well,

installing a pump set, fencing the land and planting mango

trees. Absolutely no evidence is adduced to show that the

plaintiff was in possession of Rs.8,00,000/- and how much

he has spent out of Rs.8,00,000/- on these different heads

and from where he got the money. Therefore, the evidence

on record clearly establishes that the plaintiff has failed to

88

prove the possession of the balance sale consideration as

pleaded by him. There is absolutely no evidence on record to

show that he was willing to pay the said amount. When he

was not in possession of the amount at all, the question of

willing to part with that money would not arise. Therefore,

the plaintiff has failed to prove the legal requirement of

readiness and willingness to pay the balance sale

consideration. As the proof of readiness and willingness to

pay the sale consideration is a condition precedent for grant

of a decree of specific performance, the plaintiff has

miserably failed in this regard and therefore the plaintiff is

not entitled to the relief of specific performance.

59. The trial Court has proceeded on the basis that,

the evidence of PW2 and legal notices at Exs.P5 and P8

clearly goes to show that the plaintiff was/is ready and

willing to perform his part of the contract from the

agreement till the date of filing the suit and subsequently

also. Further it held that, in spite of service of notices the

89

defendant No.1 did not respond to the said notices. So

under such circumstances an inference has to be drawn that

the plaintiff was always been ready and willing to perform

his part of contract as per the agreement. Then, the trial

Court took note of the fact that, in the cross-examination of

DW1, it is elicited that the plaintiff after getting the

agreement approached the first defendant several times and

requested her to execute the sale deed by receiving the

balance consideration amount. So, the admission made by

DW1 in the cross-examination will cut the contention of the

defendants 2 to 4 that the plaintiff was not ready and willing

to perform his part of the obligation under the agreement

dated 5.11.1990.

60. This reasoning only demonstrates a very

superficial approach on the part of the trial Court in

appreciating the evidence. It failed to notice that mere

assertion in the witness box and issue of a legal notice is not

a proof of readiness and willingness to pay the balance sale

90

consideration. The plaintiff should not only aver, but also

prove the readiness and willingness to the satisfaction of the

Court. No inferences are permissible in law. Readiness and

willingness is purely a question of fact. The plaintiff has to

produce before the Court such evidence so as to satisfy the

Court that he was ready with the balance sale consideration

and he was willing to part with the balance sale

consideration. As set out above, the evidence on record

clearly demonstrates he was neither ready with the balance

sale consideration nor he made any attempt to pay the

balance sale consideration. On the contrary he has taken

false pleas which are not substantiated by any evidence.

Therefore, the finding recorded by the trial Court that the

plaintiff has established his readiness and willingness is not

based on any legal evidence and as such it is vitiated and

requires to be set aside and accordingly it is set aside.

91

POINT No. 3

61. Section 19 of the Specific Relief Act is pressed

into service by the plaintiff to bind defendants 3 and 4 and

to compel them to execute the sale deed in their favour.

Defendants 3 and 4 have taken a specific contention that

they are bona fide purchasers for valuable consideration

without notice of this agreement of sale and therefore they

are not bound by the said contract and no decree for specific

performance can be passed against them.

62. Section 19 of the Specific Relief Act, 1963 reads

as under:-

"19. Relief against parties and persons claiming

under them by subsequent title.- Except as

otherwise provided by this Chapter, specific

performance of a contract may be enforced

against -

(a) either party thereto;

92

(b) any other person claiming under him

by a title arising subsequently to the

contract, except a transferee for

value who has paid his money in

good faith and without notice of the

original contract;

(c) any person claiming under a title

which, though prior to the contract

and known to the plaintiff, might

have been displaced by the

defendant;

(d) when a company has entered into a

contract and subsequently becomes

amalgamated with another company,

the new company which arises out of

the amalgamation;

(e) when the promoters of a company

have, before its incorporation,

entered into a contract for the

purpose of the company and such

contract is warranted by the terms of

the incorporation, the company:

93

Provided that the company has

accepted the contract and communicated

such acceptance to the other party to the

contract.

63. The section lays down a general rule that the

original contract may be specifically enforced against persons

who are not parties to the original contract. It provides the

categories of persons against whom specific performance of a

contract may be enforced. Among them is included, under

clause (b), any transferee claiming under the vendor by a title

arising subsequently to the contract of which, specific

performance is sought. However, a transferee for value, who

has paid his money in good faith and without notice of the

original contract, is excluded from the purview of the said

clause. It is clearly for the transferee to establish the

circumstances which will allow him to retain the benefit of a

transfer which, prima facie, he had no right to get. Further,

the subsequent transferee is the person within whose

knowledge the facts as to whether he has paid and whether

94

he had notice of the original contract lie, and the provisions

of Sections 103 and 106 of the Indian Evidence Act, 1872,

have a bearing on the question. The plaintiff does not

necessarily have knowledge of either matter. To fall within the

excluded class, a transferee must show that:

(a) he has purchased for value the property (which is

the subject-matter of the suit for specific

performance of the contract);

(b) he has paid his money to the vendor in good

faith; and

(c) he had no notice of the earlier contract for sale

(specific performance of which is sought to be

enforced against him).

A bona fide purchaser for valuable consideration who obtains

a legal estate at the time of his purchase without notice of a

prior equitable right is entitled to priority in equity as well as

at law.

95

64. Under Section 19(b) a specific performance of a

contract can be enforced not only against either party thereto,

but against any other person claiming under him by a title

arising subsequently to the contract, except a transferee for

value who has paid his money in good faith and without

notice of original contract. Further, Section 91 of the Indian

Trusts Act, 1882 lays down that where a person acquires

property with notice that another person has entered into an

existing contract affecting that property, of which a specific

performance could be enforced, the former must hold the

property for the benefit of the latter to the extent necessary to

give effect to the contract. An agreement to sell immovable

property does not create any interest in the said property

unless a sale deed is executed conveying the said property.

The vendor, who has not transferred his interest in the

property, though he entered into an agreement with another

to sell the same, can certainly confer title on a third party by

executing a sale deed in his favour. As between the vendor

and the subsequent purchaser, there can be little doubt that

96

there is a transfer of ownership and, therefore, the title to the

property vests in the latter. But the title of the subsequent

purchaser with notice of the prior agreement in favour of

another is subject to the obligation under S. 91, Trusts Act.

He holds the property for the benefit of the latter to the extent

necessary to give effect to the contract. The person in whose

favour there was a prior agreement can specifically enforce

his agreement under Section 27(2) Section 27(b)), Specific

Relief Act, and compel him to execute a sale deed in his

favour. But till such a sale deed is executed by the

subsequent purchaser, the person in whose favour there was

a prior agreement cannot acquire any title to the same. It is

well settled that the initial burden to show that the

subsequent purchaser of suit property covered by earlier suit

agreement was a bona fide purchaser for value without notice

of the suit agreement squarely rests on the shoulders of such

subsequent transferee. Once evidence is led by both the sides

the question of initial onus of proof pales into insignificance

and the Court will have to decide the question in controversy

97

in the light of the evidence on record. Where a transferee has

knowledge of such facts which would put him on inquiry

which if prosecuted would have disclosed a previous

agreement, such transferee is not a transferee without notice

of the original contract. It is the bounden duty of the

purchaser to make all such necessary enquiries and to

ascertain all the facts relating to the property to be purchased

prior to committing in any manner and hence they cannot

simply come forward to put up the general plea that they are

the bonafide purchasers for value and without notice.

Explanation II appended to the interpretation clause in

section 3 of the Transfer of Property Act says: “Any

person acquiring any immovable property or any share or

interest in any such property shall be deemed to have notice

of the title, if any, of any person who is for the time being in

actual possession thereof.

65. Thus, it is seen that a statutory presumption of

“notice” arises against any person who acquires any

98

immovable property or any share or interest therein of the

title, if any, of the person who is for the time being in actual

possession thereof. Where there is a tenant in possession

under a lease or an agreement, a person, purchasing part of

the estate, must be bound to inquire, on what terms that

person is in possession.

66. Section 3 of the Transfer of Property Act is the

interpretation clause. It defines when a person is said to

have notice. It reads as under:-

“3. Interpretation- clause.- In this Act,

unless there is something repugnant in the

subject or context,--"

xxx xxx xxx

“a person is said to have notice" of a fact

when he actually knows that fact, or when, but

for willful abstention from an inquiry or search

which he ought to have made, or gross

negligence, he would have known it.

99

Explanation I.- Where any transaction

relating to immoveable property is required by

law to be and has been effected by a registered

instrument, any person acquiring such property or

any part of, or share or interest in, such property

shall be deemed to have notice of such instrument

as from the date of registration or, where the

property is not all situated in one sub- district, or

where the registered instrument has been

registered under sub- section (2) of section 30 of

the Indian Registration Act, 1908 (16 of 1908),

from the earliest date on which any memorandum

of such registered instrument has been filed by

any Sub- Registrar within whose sub- district any

part of the property which is being acquired, or of

the property wherein a share or interest is being

acquired, is situated:

Provided that—

(1) the instrument has been registered and

its registration completed in the manner

prescribed by the Indian Registration Act, 1908

(16 of 1908), and the rules made thereunder,

100

(2) the instrument or memorandum has

been duly entered or filed, as the case may be, in

books kept under section 51 of that Act, and

(3) the particulars regarding the transaction

to which the instrument relates have been

correctly entered in the indexes kept under

section 55 of that Act.

Explanation II.- Any person acquiring any

immoveable property or any share or interest in

any such property shall be deemed to have notice

of the title, if any, of any person who is for the

time being in actual possession thereof.

Explanation III.- A person shall be deemed

to have had notice of any fact if his agent

acquires notice thereof whilst acting on his behalf

in the course of business to which that fact is

material:

Provided that, if the agent fraudulently

conceals the fact, the principal shall not be

charged with notice thereof as against any

person who was a party to or otherwise cognizant

of the fraud.”

101

67. Thus, it is seen that a statutory presumption of

notice arises against any person who acquires any

immovable property or any share or interest therein of the

title, if any, of any person who is for the time being in actual

possession thereof. Notice is defined in Section 3 of the

Transfer of Property Act. It may be actual where the party

has actual knowledge of the fact or constructive. A person is

said to have notice of a fact when he actually knows that

fact, or when, but for willful abstention from an inquiry or

search which he ought to have made, or gross negligence, he

would have known it. From the definition of the expression,

a person is said to have notice in Section 3 of the Transfer of

Property Act, it is plain that the word notice is of wider

import than the word knowledge. A person may not have

actual knowledge of a fact but he may have notice of it

having regard to the aforementioned definition and

Explanation II thereto. If the purchasers have relied upon

the assertion of the vendor or on their own knowledge and

abstained from making enquiry into the real nature of the

102

possession of the tenant, they cannot escape from the

consequences of the deemed notice under Explanation II to

Section 3 of the Transfer of Property Act.

68. Section 3 was amended by the Amendment Act

of 1929 in relation to the definition of 'notice'. The definition

has been amended and supplemented by three explanations,

which settle the law in several matters of great importance.

Explanation-II states that actual possession is notice of the

title of the person in possession. Prior to the amendment

there had been some uncertainty because of divergent views

expressed by various High Courts in relation to the actual

possession as notice of title. A person may enter the property

in one capacity and having a kind of interest, but

subsequently while continuing in possession of the property

his capacity or interest may change. A person entering the

property as a tenant later may become a usufructuary

mortgagee or may be an agreement holder to purchase the

same property or may be some other interest is created in

103

his favour subsequently. Hence with reference to subsequent

purchaser, it is essential that he should make an inquiry as

to title or interest of the person in actual possession as on

the date when sale transaction was made in his favour. The

actual possession of a person itself is deemed or constructive

notice of the title if any, of a person who is for the time being

in actual possession thereof. A subsequent purchaser has to

make inquiry as to further interest, nature of possession and

title under which the person was continuing in possession

on the date of purchase of the property. When a person

purchases a property from the owner knowing that it is in

the possession of another, he is under a duty to inquire into

the nature of that possession, and, in the absence of such

inquiry or knowledge of title under which possession is held,

the same should be attributed to the purchaser. Where there

is a tenant in possession under a lease and an agreement of

sale in his favour, a person purchasing part of the estate

must be bound to inquire on what terms that person is in

possession. A tenant being in possession under a lease, with

104

an agreement in his pocket to become the purchaser, those

circumstances altogether give him an equity repelling the

claim of a subsequent purchaser who made no inquiry as to

the nature of his possession. It is the duty of the subsequent

purchaser to inquire from the persons in possession as to

the precise character in which they were in possession at the

time when subsequent sale transaction was entered into. If

there be a tenant in possession of land a purchaser is bound

by all the equities which the tenant could enforce against the

vendor and such equity extends not only to the interest

connected with the tenancy, but also to interests under the

actual agreement.

69. The law on the point is well settled. The principle

of constructive notice of any title which a tenant in actual

possession may have, was laid down by LORD ELDON IN

DANIELS VS. DAVISON [(1809) 16 VES. 249 AT P.254].

The learned law Lord observed:

105

"Where there is a tenant in possession under a

lease, or an agreement, a person purchasing part

of the estate must be bound to inquire on what

terms that person is in possession..........that a

tenant being in possession under a lease, with an

agreement in his pocket to become the purchaser,

those circumstances altogether give him an equity

repelling the claim of a subsequent purchaser

who made no inquiry as to the nature of his

possession"."

(emphasis supplied)

70. In the case of BHUP NARAIN SINGH vs GOKUL

CHAND MAHTON AND OTHERS [AIR 1934 PRIVY COUNCIL

68] it is held as under:-

“In their Lordships' opinion, the section lays

down a general rule that the original contract

may be specifically enforced against a

subsequent transferee, but allows an exception to

that general rule, not to the transferor, but to the

transferee, and, in their Lordships' opinion, it is

clearly for the transferee to establish the

circumstances which will allow him to retain the

benefit of a transfer which, prima facie, he had no

106

right to get. Further, the subsequent transferee is

the person within whose knowledge the facts as

to whether he has paid and whether he had

notice of the original contract lie, and the

provisions of Sections 103 and 106 of the Indian

Evidence Act, 1872, have a bearing on the

question. The plaintiff does not necessarily have

knowledge of either matter……”

71. The High Court of Andhra Pradesh in the case of

MUMMIDI REDDI PAPANNAGARI YELLA REDDY VS. SALLA

SUBBI REDDY AND OTHERS, AIR 1954 AP 20 referring to

various decisions in paragraph 8 has stated thus:

"It may be mentioned here that an

Explanation was introduced into the Transfer of

Property Act by the Amending Act 21 of 1929.

Even prior to this amendment, the law, as

declared in decided cases, was that, when a

person purchased property from the owner

knowing that it is in the possession of another, he

is under a duty to inquire into the nature of that

possession, and, in the absence of such inquiry,

107

knowledge of title under which possession is

held, should be attributed to the purchaser. The

leading case on the subject, relied on in a number

of Indian decisions.

72. A Division Bench of the High Court of Madras in

VEERAMALAI VANNIAR vs. THADIKARA VANNIAR (AIR

1968 MAD. 383) has held as under:-

“that it is also the duty of the subsequent

purchaser to inquire from the persons in

possession as to the precise character in which

he was in possession at the time when

subsequent sale transaction was entered into. If

there be a tenant in possession of land a

purchaser is bound by all the equities which the

tenant could enforce against the vendor and such

equity extends not only to the interest connected

with the tenancy but also to interests under the

actual agreement”.

73. The Apex Court in the case of GOVINDDAS (DR.)

VS. SHANTIBAI (1973) 3 SCC 418 has held as under:-

108

"14. It will be noticed that the evidence is

contradictory and we have to decide whose

version is more acceptable. The learned counsel

for the appellants contended that the onus of

proof was very light on the appellants and they

had discharged it by entering the witness-box

and stating that they had no knowledge. We are

unable to agree with him that in the

circumstances of this case the onus was light on

the appellants. The circumstances that tell

heavily against the version of the appellants are

these. First, all the parties are residents or have

shops in the same vicinity and in places like this

it is not probable that the appellants would not

come to know of the execution of the agreement

(Souda- Chitthi) of the plaintiff. Secondly, the

haste with which the sale-deed in favour of the

appellants was executed was unusual. It is more

usual for an agreement to be executed in such

cases rather than arrive at an oral agreement on

one day and have the sale-deed executed the

next day and registered the following day. For

some reason the appellants were in a hurry to get

the deed registered. What was the reason? In

view of all the circumstances we are inclined to

109

accept the evidence of Hem Raj Chauhan, and

corroborated by Hayat, that Goverdhandas knew

of the execution of the agreement with the

plaintiff on March 1, 1960."

74. The Bombay High Court in the case of

MURLIDHAR BAPUJI VALVE vs YALLAPPA LALU

CHAUGULE AND OTHERS (AIR 1994 BOMBAY 358) has

held as under:-

“20……It is well settled law that the onus

to prove the exception carved out in S.19(b) of the

Specific Relief Act, 1963 is on the subsequent

purchaser. S.19 of the Act clearly provides that

specific performance of a contract may be

enforced against either party thereto or any other

person claiming under him by a title arising

subsequently to the contract, except a transferee

for value who has paid his money in good faith

and without notice of the original contract.”

75. The Supreme Court in the case of

R.K. MOHAMMED UBAIDULLAH AND OTHERS vs HAJEE C

110

ABDUL WAHAB (D) BY LRS AND OTHERS [(2000) 6 SCC

402] has held as under:-

“As can be seen from Section 19 (a) and (b)

extracted above specific performance of a contract

can be enforced against (a) either party thereto

and (b) any person claiming under him by a title

arising subsequent to the contract, except a

transferee for value who has paid his money in

good faith and without notice of the original

contract. Section 19(b) protects the bona fide

purchaser in good faith for value without notice of

the original contract. This protection is in the

nature of exception to the general rule. Hence the

onus of proof of good faith is on the purchaser

who takes the plea that he is an innocent

purchaser. Good faith is a question of fact to be

considered and decided on the facts of each case.

Section 52 of the Penal Code emphasizes due

care and attention in relation to the good faith. In

the General Clauses Act emphasis is laid on

honesty.

15. Notice is defined in Section 3 of the

Transfer of Property Act. It may be actual where

111

the party has actual knowledge of the fact or

constructive. "A person is said to have notice" of a

fact when he actually knows that fact, or when,

but for willful abstention from an inquiry or

search which he ought to have made, or gross

negligence, he would have known it. Explanation

II of said Section 3 reads:

"Explanation II - Any person acquiring any

immoveable property or any share or interest in

any such property shall be deemed to have notice

of the title, if any, of any person who is for the

time being in actual possession thereof."

Section 3 was amended by the Amendment Act of

1929 in relation to the definition of 'notice'. The

definition has been amended and supplemented

by three explanations, which settle the law in

several matters of great importance. For the

immediate purpose Explanation-II is relevant. It

states that actual possession is notice of the title

of the person in possession. Prior to the

amendment there had been some uncertainty

because of divergent views expressed by various

High Courts in relation to the actual possession

as notice of title. A person may enter the property

112

in one capacity and having a kind of interest. But

subsequently while continuing in possession of

the property his capacity or interest may change.

A person entering the property as tenant later

may become usufructuary mortgagee or may be

agreement holder to purchase the same property

or may be some other interest is created in his

favour subsequently. Hence with reference to

subsequent purchaser it is essential that he

should make an inquiry as to title or interest of

the person in actual possession as on the date

when sale transaction was made in his favour.

The actual possession of a person itself is

deemed or constructive notice of the title if any, of

a person who is for the time being in actual

possession thereof. A subsequent purchaser has

to make inquiry as to further interest, nature of

possession and title under which the person was

continuing in possession on the date of purchase

of the property. In the case on hand defendants 2

to 4 contended that they were already aware of

the nature of possession of the plaintiff over the

suit property as a tenant and as such there was

no need to make any inquiry. At one stage they

also contended that they purchased the property

113

after contacting the plaintiff, of course, which

contention was negatived by the learned trial

court as well as the High court. Even otherwise

the said contention is self- contradictory. In view

of Section 19(b) of the Specific Relief Act and

definition of 'notice' given in Section 3 of the

Transfer of Property Act read along with

explanation II, it is rightly held by the trial court

as well as by the High Court that the defendants

2 to 5 were not bona fide purchasers in good faith

for value without notice of the original contract.

76. The Apex Court in the case of RAM NIWAS

(DEAD) THROUGH LRS vs BANO (SMT) AND OTHERS

[(2000) 6 SCC 685] has held as under:-

(a) “3. Section 19 provides the categories of

persons against whom specific performance

of a contract may be enforced. Among them

is included, under clause (b), any

transferee claiming under the vendor by a

title arising subsequently to the contract of

which, specific performance is sought.

However, a transferee for value, who has

114

paid his money in good faith and without

notice of the original contract, is excluded

from the purview of the said clause.

4. The said provision is based on the principle

of English law which fixes priority between

a legal right and an equitable right. If ‘A’

purchases any property from ‘B’ and

thereafter ‘B’ sells the same to ‘C’, the sale

in favour of ‘A’, being prior in time, prevails

over the sale in favour of ‘C’ as both ‘A’

and ‘C’ acquired legal rights. But where

one is a legal right and the other is an

equitable right

“a bona fide purchaser for valuable

consideration who obtains a legal estate at

the time of his purchase without notice of a

prior equitable right is entitled to priority in

equity as well as at law.” [Snells Equity –

13th Edn p.48].

7. Thus, it is seen that a statutory

presumption of “notice” arises against any

person who acquires any immovable

property or any share or interest therein of

115

the title, if any, of the person who is for the

time being in actual possession thereof.

77. The Supreme Court in the case of VASANTHA

VISWANATHAN AND OTHERS vs V.K.ELAYALWAR AND

OTHERS [(2001) 8 SCC 133] has held as under:-

“13…… Section 19(b) of the Specific Relief

Act, 1877 (sic 1963), which occurs in Chapter II,

applies to movables by virtue of the provisions of

Section 58 of the Sale of Goods Act referred to

above. Under Section 19(b) a specific performance

of a contract can be enforced not only against

either party thereto but against any other person

claiming under him by a title arising subsequently

to the contract, except a transferee for value who

has paid his money in good faith and without

notice of original contract. Further, Section 91 of

the Indian Trusts Act, 1882 lays down that where

a person acquires property with notice that

another person has entered into an existing

contract affecting that property, of which a

specific performance could be enforced, the former

must hold the property for the benefit of the latter

116

to the extent necessary to give effect to the

contract……”

78. In the instant case, the plaintiff contends that,

when the execution of the agreement of sale is not in dispute

and the agreement of sale specifically contains a recital that

the possession of the property is handed over to him on the

day of the agreement of sale, the fact that he is in possession

is established. Therefore, in so far as defendant No.2 is

concerned, she admits that she was aware of the existence of

such an agreement and that she purchased the property

because the said agreement had been cancelled. Therefore,

she actually knows the fact that plaintiff was in possession

of the property on the day she purchased the property. In so

far as defendants 2 to 4 are concerned, they were also aware

of the existence of the agreement of sale and therefore they

were also knowing the fact that the plaintiff is in possession.

Even otherwise, they did not make any enquiry which they

ought to have made and therefore because of their gross

negligence they are deemed to have had notice of the

117

possession of the plaintiff over the schedule property.

Therefore, they cannot plead that they purchased the

property without notice of the said agreement of sale.

79. It is true that in the agreement of sale there is a

recital that the plaintiff was put in possession of the

agreement of sale. The question is, on the day the

defendants’ purchased the property, was he in possession of

the property. The entire argument is based on the footing

that the plaintiff has taken possession of the property in part

performance of the agreement of sale and therefore Section

53A of the Transfer of the Property Act is attracted.

SECTION 53A OF THE TRANSFER OF PROPERTY ACT

80. Therefore, the question that arise for

consideration is, whether the plaintiff is entitled to the

benefit of Section 53A of the Transfer of Property Act.

Section 53A of the Transfer of Property Act reads as under : -

118

“53A. Part performance.- Where any

person contracts to transfer for consideration any

immoveable property by writing signed by him or

on his behalf from which the terms necessary to

constitute the transfer can be ascertained with

reasonable certainty,

and the transferee has, in part

performance of the contract, taken possession

of the property or any part thereof, or the

transferee, being already in possession,

continues in possession in part performance

of the contract and has done some act in

furtherance of the contract,

and the transferee has performed or is

willing to perform his part of the contract,

then, notwithstanding that where there is

an instrument of transfer, that the transfer has

not been completed in the manner prescribed

therefor by the law for the time being in force, the

transferor or any person claiming under him shall

be debarred from enforcing against the transferee

and persons claiming under him any right in

respect of the property of which the transferee

119

has taken or continued in possession, other than

a right expressly provided by the terms of the

contract.

Provided that nothing in this section shall

affect the rights of a transferee for consideration

who has no notice of the contract or of the part

performance thereof”.

81. This provision has been the subject matter of

interpretation by the Supreme Court. The Supreme Court in

the case of BAI DOSABAI vs MATHURDAS GOVINDDAS

AND OTHERS [AIR 1980 SC 1334] has held as under:-

“6. …… The concept and creation of duality

of ownership, legal and equitable, on the

execution of an agreement to convey immovable

property, as understood in England is alien to

Indian Law which recognises one owner i.e. the

legal owner……...The ultimate paragraph of

Section 54 of the Transfer of Property Act,

expressly enunciates that a contract for the sale

of immovable property does not, of itself, create

any interest in or charge on such property. But

120

the ultimate and penultimate paragraphs of

Section 40 of the Transfer of Property Act make it

clear that such a contract creates an obligation

annexed to the ownership of immovable property,

not amounting to an interest in the property, but

which obligation may be enforced against a

transferee with notice or the contract or a

gratuitous transferee of the property. Thus the

Equitable ownership in property recognised by

Equity in England is translated into Indian law as

an obligation annexed to the ownership of

property, not amounting to an interest in the

property, but an obligation which may be

enforced against a transferee with notice or a

gratuitous transferee.

7. If we now turn to the Indian Trusts Act, we

find "trust" defined as:

"an obligation annexed to the ownership of

property, and arising out of a confidence reposed

in and accepted by the owner, or declared and

accepted by him, for the benefit of another, or of

another and the owner",

121

and "beneficial interest" defined as the interest of

the beneficiary against the trustee as owner of

the trust- property. Chapter IX of the Trusts Act

enumerates in section after section cases where

obligations in the nature of trust are created.

Section 94 finally provides:

"94. In any case not coming within the

scope of any of the preceding sections, where

there is no trust, but the person having

possession of property has not the whole

beneficial interest therein, he must hold the

property for the benefit of the persons having

such interest, or the residue thereof (as the case

may be), to the extent necessary to satisfy their

just demands".

8. We may now examine some of the

provisions of the Specific Relief Act, 1877, which

though repealed and replaced by Act 47 of 1963.

is the statute with which we are concerned.

"Trust" was defined in Section 3 of the 1877 Act

as having "the same meaning as in Section 3 of

the Indian Trusts Act" and as "including an

obligation in the nature of a trust within the

122

meaning of Chapter IX of that Act". Section 12(a)

of the Act of 1877 provided, "Except as otherwise

provided in this Act, specific performance of

contract may, in the discretion of the Court, be

enforced when the act agreed to be done is in the

performance wholly or partly of a trust". The other

clauses of Section 12 and Sections 13 to 18

enumerated the other contracts which might be

specifically enforced. Section 21 specified when

contracts were not specifically enforceable.

Section 16 is of some relevance. It said:

"when part of a contract which, taken by itself

can and ought to be specifically performed,

stands on a separate and independent footing

from another part of the same contract which

cannot or ought not to be specifically performed,

the Court may direct specific performance of the

former part".

82. The Kerala High Court in the case of M/s

JACOBS PRIVATE LIMITED vs THOMAS JACOB [AIR 1995

KERALA 249] has held as under:-

123

“9 ……. The following postulates are sine

qua non for basing a claim on Sec.53-A (1). The

contract should have been in writing signed by

the transferor, (2) The transferee should have got

possession of the immovable property covered by

the contract. (3) The transferee should have done

some act in furtherance of the contract. (4) The

transferee has either performed his part of the

contract or is willing to perform his part of the

contract. Section 53-A makes it clear by

employing the word "then" after laying down the

pre-requisites that a transferee can seek refuge

under it only after satisfying the above pre-

requisites. In other words, the bar envisaged in

the section against enforcement of the transferor's

right can be exercised only on compliance with

the postulates. The said bar is intended to be

used by a transferee only as a shield and not as

a sword.

11. Willingness to perform the roles

ascribed to a party in a contract is primarily a

mental disposition. However, such willingness in

the context of Sec.53-A of the T. P. Act must be

absolute and unconditional. If willingness is

124

studded with a condition, it is in fact no more

than an offer and cannot be termed as

willingness. As a right is created by the statute in

favour of a transferee through Sec.53-A, the

transferee has to fulfil all the conditions for

acquiring the right. In other words, what is

contemplated is the complete performance or

complete willingness and not performance in part

or conditional willingness or even willingness in

part……”

83. The Supreme Court in the case of SHRIMANT

SHAMRAO SURYAVANSHI AND ANOTHER Vs PRALHAD

BHAIROBA SURYAVANSHI (DEAD) BY LRs AND OTHERS

[ILR 2003 KAR 503] has held as under:-

“7. A perusal of Section 53-A shows that it

does not forbid a defendant transferee from

taking a plea in his defence to protect his

possession over the suit property obtained in part

performance of a contract even though the period

of limitation for bringing a suit for specific

performance has expired. It also does not

expressly provide that a defendant transferee is

125

not entitled to protect his possession over the suit

property taken in part performance of the contract

if the period of limitation to bring a suit for

specific performance has expired. In absence of

such a provision, we have to interpret the

provisions of Section 53-A in a scientific manner.

It means to look into the legislative history and

structure of the provisions of Section 53- A of the

Act.

8. Earlier, the assistance of historical facts or

any document preceding the legislation was very

much frowned upon for purposes of construction

of statutes. At that time, there was some

injunction against applying principle of looking

into the historical facts or reports preceding the

legislation in construing a statute. However, by

passage of time, this embargo has been lifted.

9. In R.S. Nayak vs. A.R. Antulay - 1984 (2)

SCC 183, it was held thus :

"(R)eports of the Committee which preceded

the enactment of a legislation reports of

Joint Parliament Committee report of a

126

commission set up for collecting information

leading to the enactment are permissible

external aid to construction. If the basic

purpose underlying construction of

legislation is to ascertain the real intention

of the Parliament why should the aids

which Parliament availed of such as report

of a Special Committee preceding the

enactment existing State of Law, the

environment necessitating enactment of

legislation and the object sought to be

achieved be denied to Court whose function

is primarily to give effect to the real

intention of the Parliament in enactment of

the legislation. Such denial would deprive

the Court of a substantial and illuminating

aid to constructions. (SCC pp. 214-15

para 34)

The modern approach has to a

considerable extent eroded the

exclusionary rule even in England. (SCC p.

212. Para 33)”

127

The modern approach has to a

considerable extent eroded the

exclusionary rule even in England (SCC

p.212 para 33).

10. Now the accepted view is that the

document or report preceding the legislation can

legitimately be taken into consideration while

construing the provisions of an Act.

11. We, therefore, proceed to examine the

question before us in the light of facts stated

hereinafter.

12. In England, the provisions of the law of

Property Act of the Statute of Fraud provided that

no suit or action would be brought on agreement

relating to a property which was not in writing

signed by the parties. The aim and object of the

statute was to protect a party against fraud.

However, certain difficulties were experienced

when it was found that under an oral agreement

a party has performed his part of the contract, yet

he was unable to bring any action or suit against

other party viz., transferor for a specific

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performance of the agreement which was not in

writing in view of the provisions contained in the

Statute of Fraud. Under such situations,

transferors managed to play fraud on innocent

buyers who entered into an oral agreement and

performed their part of the contract. In view of

such prevailing circumstances in England, the

Court of Equity intervened on the ground of equity

and took action to enforce specific performance of

a parole agreement. The view taken by the Court

of Equity was that the object behind the Law of

Property of the Statute of Fraud was to protect

against a fraud, but the provisions of Law of

Property of Statute of Fraud were being used as

an instrument to help and protect fraud. Thus, the

Court of Equity did not permit the Statute of

Fraud to be used as an instrument to cover the

fraud by the transferors where there was a part

performance of a parole agreement.

13. When the Transfer of Property Act was

enacted, Section 53-A did not find place in it. In

the absence of Section 53-A, there arose

difference of opinion between various courts in

India as regards the application of English

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doctrine of part performance of contract as it was

then prevailing in England. Since there was a

difference of opinion on question of the

application of English equitable doctrine of part

performance in various courts of India, the Govt.

of India resolved to set up a Special Committee for

making recommendations amongst others

whether the British equitable doctrine of part

performance be extended in India also. The

Special Committee was of the view that an

illiterate or ignorant buyer who had partly

performed his part of contract required statutory

protection. The Committee was of the further view

that where a transferee in good faith that lawful

instrument i.e. a written contract would be

executed by the transferor takes possession over

the property, the equity demanded that the

transferee should not be treated as trespasser by

the transferor and subsequently evict him through

process of law in the absence of lawful transfer

instrument. The Special Committee also

considered the question whether protection under

the proposed Section 53-A to a transferee would

also be available even if the period of limitation

for bringing an action for specific performance of

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an agreement to sell has expired. On the said

question, the Committee was of the view that

even after expiry of period of limitation, the

relationship between the transferor and

transferee remains the same as it was within the

period of limitation and, therefore, the possession

over the property taken in part performance of an

agreement is required to be protected even if the

period of limitation for bringing an action for

specific performance has expired.

14. The aforesaid recommendation of the

Special Committee were accepted by the Govt. of

India as the same is well reflected in the aims

and objects of amending Act 1929 whereby

Section 53-A was inserted in the Act.

15. The Special Committee's report which is

reflected in the aims and objects of amending Act

1929 shows that one of the purposes of enacting

Section 53-A was to provide protection to a

transferee who in part performance of the

contract had taken possession of the property

even if the limitation to bring a suit for specific

performance has expired. In that view of the

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matter, Section 53-A is required to be interpreted

in the light of the recommendation of Special

Committee's report and aims, objects contained in

amending Act 1929 of the Act and specially when

Section 53-A itself does not put any restriction to

plea taken in defence by a transferee to protect

his possession under Section 53-A even if the

period of limitation to bring a suit for specific

performance has expired.

16. But there are certain conditions which are

required to be fulfilled if a transferee wants to

defend or protect his possession under Section

53-A of the Act. The necessary conditions are

1) there must be a contract to transfer for

consideration any immovable property;

2) the contract must be in writing, signed

by the transferor, or by someone on his

behalf;

3) the writing must be in such words from

which the terms necessary to construe the

transfer can be ascertained;

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4) the transferee must in part performance

of the contract take possession of the

property, or of any part thereof;

5) the transferee must have done some act

in furtherance of the contract; and

6) the transferee must have performed or

be willing to perform his part of the

contract.

17. We are, therefore, of the opinion that if the

conditions enumerated above are complied with,

the law of limitation does not come in the way of

a defendant taking plea under Section 53-A of the

Act to protect his possession of the suit property

even though a suit for specific performance of a

contract has barred by limitation.

18. The matter may be examined from another

angle. The established rule of limitation is that

law of limitation is not applicable to a plea taken

in defence unless expressly a provision is made

in the statute. The law of limitation applies to the

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suits and applications. The various articles of the

Limitation Act show that they do not apply to a

defence taken by a defendant in a suit. Thus, the

law of limitation bars only an action in a court of

law. In fact, what the Limitation Act does is, to

take away the remedy of a plaintiff to enforce his

rights by bringing an action in a court of law, but

it does not place any restriction to a defendant to

put forward any defence though such defence as

a claim made by him may be barred by limitation

and cannot be enforced in a court of law. On the

said principle, a defendant in a suit can put

forward any defence though such defence may

not be enforceable in a court of law, being barred

by limitation.

19. In M.K. Venkatachari & Ors. vs. I.A.R.

Arunachalam Pillai & Ors. AIR 1967 Madras,

410, it was held, thus:

"That defence to limitation is a creature of a

positive law and, therefore, cannot be

extended to cases which do not strictly fall

within the enactment. It is an established

canon of construction of law of limitation

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not to enlarge the scope of statutory

provisions of limitation by analogy or logic".

20. It is, therefore, manifest that the Limitation

Act does not extinguish a defence, but only bars

the remedy. Since the period of limitation bars a

suit for specific performance of a contract, if

brought after the period of limitation, it is open to

a defendant in a suit for recovery of possession

brought by a transferor to take a plea in defence

of part performance of the contract to protect his

possession, though he may not able to enforce

that right through a suit or action.

84. The Supreme Court in the case of FGP LIMITED

vs SALEH HOOSEINI DOCTOR AND ANOTHER [(2009) 10

SCC 223] has held as under:-

“23. The submission by the appellant's

counsel on part performance of the contract under

Section 53-A of the Transfer of Property Act also

cannot be accepted. Section 53-A of the Transfer

of Property Act is based upon the equitable

doctrine of part performance in English Law.

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Initially Section 53-A was not incorporated in the

Transfer of Property Act but the same came by

way of an amendment for the first time by the

Transfer of Property Amendment Act 1929 (Act of

1929). The amendment had to be made in view of

some divergence in judicial opinion on the

application of the aforesaid equitable doctrine by

various Courts in India.

24. Section 53-A of the Transfer of Property Act

has certain ingredients and, in our judgment,

those are:-

(1) a contract to transfer immovable

property;

(2) the transfer should be for

consideration;

(3) the contract must be in writing; (4) it

should be signed by or on behalf of

the transferor;

(5) the terms of the contract can be

ascertained with reasonable

certainty from the writing;

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(6) the transferee takes possession of

the whole or part of the property or if

already in possession continues in

possession;

(7) such taking of or continuance in

possession should be in part

performance of the contract;

(8) the transferee should do some act in

furtherance of the contract; and

(9) he should have performed, or be

willing to perform, his part of the

contract.

25. The rationale of the equitable doctrine of

part performance in English Law has been traced

in Section 53-A by this Court in the case of Sardar

Govindrao Mahadik Vs. Devi Sahai [1982(1) SCC

237]. In para 13, page 249 of the report while

tracing the said equitable doctrine in the way it

has been assimilated in Section 53-A of the

Transfer of Property Act, the learned Judges held

that the act or action relied upon as “evidencing

part performance”; must be of such nature and

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character that its existence would establish the

contract and its implementation. The learned

Judges further held that the crucial act or action

must be of such a character as to be

unequivocally referable to the contract as having

been performed in performance of the contract.

26. In support of the said conclusion, the

learned Judges referred to an Old English

decision rendered in the case of (Lady) V. Earl of

Glengall (2 HL Cases 131). In referring to the

said case, the learned Judges quoted the

observations therefrom and which are reproduced

herein below: (Thynne case, HL. p.158)

“...part performance to take the case out of

the Statute of Frauds, always supposes a

completed agreement. There can be no part

performance where there is no completed

agreement in existence. It must be

obligatory, and what is done must be under

the terms of the agreement and by force of

the agreement...”

Relying on the aforesaid principle, the learned

Judges in Sardar Govindrao Mahadik (supra)

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reiterated that the act relied upon by the party

invoking the said doctrine must be such as by its

own force to show the very existence of the same

contract.”

85. From the aforesaid judgments of the Apex Court

it is clear that, the ultimate paragraph of Section 54 of the

Transfer of Property Act, expressly enunciates that a

contract for the sale of immovable property does not, of itself,

create any interest in or charge on such property. But the

ultimate and penultimate paragraphs of Section 40 of the

Transfer of Property Act make it clear that such a contract

creates an obligation annexed to the ownership of immovable

property, not amounting to an interest in the property, but

which obligation may be enforced against a transferee with

notice or the contract or a gratuitous transferee of the

property. Thus the Equitable ownership in property

recognised by Equity in England is translated into Indian law

as an obligation annexed to the ownership of property, not

amounting to an interest in the property, but an obligation

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which may be enforced against a transferee with notice or a

gratuitous transferee. When the Transfer of Property Act was

enacted, Section 53-A did not find place in it. In the absence

of Section 53-A, there arose difference of opinion between

various Courts in India as regards the application of English

doctrine of part performance of contract as it was then

prevailing in England. A Special Committee was constituted

to consider, whether the British equitable doctrine of part

performance was extended in India also. Based on the

recommendation of the Committee by Amending Act 1929,

Section 53A was inserted in the Act. The purpose of

enacting Section 53A was to provide protection to a

transferee who in part performance of the contract had taken

possession of the property even if the limitation to bring a

suit for specific performance has expired. However, there

are certain conditions which are required to be fulfilled if a

transferee wants to defend or protect his possession under

Section 53-A of the Act. The necessary conditions are:

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1) there must be a contract to transfer for

consideration any immovable property;

2) the contract must be in writing, signed by the

transferor, or by someone on his behalf;

3) the writing must be in such words from which

the terms necessary to construe the transfer can

be ascertained;

4) the transferee must in part performance of the

contract take possession of the property, or of

any part thereof;

5) the transferee must have done some act in

furtherance of the contract; and

6) the transferee must have performed or be willing

to perform his part of the contract.

86. Therefore, it is clear that, before a transferee can

claim the benefit of Section 53A, the contract should have

been in writing signed by the transferor, the transferee

should have got possession of the immovable property

covered by the contract, the transferee should have done

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some act in furtherance of the contract and lastly the

transferee has either performed his part of the contract or is

willing to perform his part of the contract. Section 53-A

makes it clear by employing the word "then" after laying down

the pre-requisites that a transferee can seek refuge under it

only after satisfying the above pre-requisites. In other words,

the bar envisaged in the section against enforcement of the

transferor's right can be exercised only on compliance with

the postulates. Willingness to perform the roles ascribed to a

party in a contract is primarily a mental disposition.

However, such willingness in the context of Sec.53-A of the

Transfer of Property Act must be absolute and unconditional.

If willingness is studded with a condition, it is in fact no more

than an offer and cannot be termed as willingness. Therefore,

the sine qua non for basing a claim on Section 53A is the

complete performance or complete willingness and not

performance in part or conditional willingness or even

willingness in part. It is only when the transferee has either

performed his part of the contract or is willing to perform his

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part of the contract, he is entitled to the benefit of Section

53A of the Transfer of Property Act.

87. Proviso to Section 53A makes it clear that

nothing in Section 53A shall affect the rights of a transferee

for consideration who has no notice of the contract or of the

part performance thereof. Therefore, Section 53A has no

application in so far as the rights of the transferee for

consideration who had no notice of the contract or of the

part performance thereof. It is in this background that we

have to appreciate the facts of this case.

88. Though the execution of the agreement of sale is

not in dispute, we have already held the agreement of sale is

interpolated in so far as the material terms of the contract

are concerned and therefore, it amounts to cancelling the

agreement of sale. Even otherwise we have said it is

unenforceable in law. Secondly we have recorded a finding

that plaintiff was not ready and willing to perform his part of

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the contract and therefore the agreement is not enforceable.

For application of Section 53A mere acceptance of an

agreement of sale and taking possession of the property

agreed to be sold in part performance of the contract by itself

is not sufficient. The transferee should perform or is willing

to perform his part of the contract. It is only then Section

53A is attracted. In view of our finding that the plaintiff has

neither performed nor willing to perform his part of the

contract, the plaintiff cannot take advantage of Section 53A.

Therefore, it does not confer any right under the agreement

so as to protect his alleged possession. The plaintiff in his

examination in chief at para 7 has categorically stated that

the suit agreement was not cancelled prior to the execution

of the sale deed by the first defendant in favour of

defendants 2 to 4. As the first defendant had taken a

specific contention in para 7 of the written statement that

the agreement is cancelled and in para 8 it was specifically

stated that the said document of cancellation dated

19.8.1992 is produced as Annexure-X to the written

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statement, the plaintiff was deposing that the said

cancellation deed was not executed prior to the execution of

the sale deeds by the first defendant in favour of defendants

2 to 4. Even otherwise, we have recorded a categorical

finding that because of the interpolation of material terms of

the contract, it has the effect of cancelling the agreement and

it is unenforceable.

89. The plaintiff in his evidence speaking about part

performance of the agreement of sale has stated in para 3 of

the deposition that, when he purchased the property the

schedule land was not even and some shrubs were there.

After he took possession he engaged a bulldozer and got the

land levelled so as to make it useful for the purpose of

agriculture. Thereafter, he had planted mango trees. He got

a well dug and also installed a pump set. Further, he got a

barbed wire fencing to the schedule property. He spent

about Rs.8 Lakhs for these developments. This fact is

disputed by the defendants. The plaintiff has not produced

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any scrap of paper to establish this fact of part performance

and therefore we have already recorded a finding that the

case of part performance as pleaded is not established. It

was contended that defendants 3 and 4 have not made any

enquiry at all before purchasing the property and therefore

they cannot contend they had no notice of this agreement of

sale. The evidence of defendant Nos. 2, 3 and 4 do not show

that they have made any enquiries at all. It is in this regard

it is to be noticed defendant DW2 and her husband DW3

were residing at Saudi Arabia whereas defendants 3 and 4

are residents of Bangalore. They did not purchase the

property from the first defendant. They have purchased the

property from the Power of Attorney Holder of the first

defendant. The said Power of Attorney in original is

produced and marked in this case as Ex. D2. The Power of

Attorney Holder Sri Amit Gupta was also examined as DW4.

The first defendant admits the execution of sale deed in

favour of defendants 2 to 4 in para 7 of the written

statement. Her son who was examined as DW1 in the case

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as her Power of Attorney Holder has deposed at para 4 of the

deposition that, his mother has sold some part of the

property to the third defendant. It has been done without

his knowledge. With the intention of deceiving the plaintiff,

in the year 1992 she has executed a Power of Attorney in

favour of the fourth defendant. That was also done without

his knowledge. The said Power of Attorney is executed on

26.6.1992. Therefore, execution of the Power of Attorney by

the first defendant in favour of Amit Gupta-DW4 and the

execution of the sale deed by Amit Gupta in favour of

defendants 2 to 4 is not in dispute. The said Amit Gupta

has been examined who has deposed that he did not make

enquiry to find out who is in possession of the property

before execution of the Power of Attorney. After execution of

the sale deed in favour of defendants 2 to 4, he has handed

over the money to 1st defendant, who has executed receipts

after receiving the money. The second defendant negotiated

with him to purchase the land. A year earlier her husband

had come to him for negotiations. Then he has seen some

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nilagiri trees and other trees in the land. He did not enquire

with 1st defendant who has planted those trees. He did not

make any enquiry with the 1st defendant to find out whether

she had made any commitments with regard to the suit

property with any persons. She must have executed

agreement with plaintiff and she told that the same was

cancelled. He did not enquire with the plaintiff whether the

said agreement was cancelled. He is doing real estate

business. On the say of the defendant 2 and her husband,

the 1st defendant executed the Power of Attorney in his

favour and prior to the execution of Power of Attorney,

negotiations were completed. He was present on the date of

negotiations between the parties. On that day there was no

token advance taken. He has denied the suggestion that 1st

defendant was not in possession of the suit land on the date

of execution of the sale deed. He has pleaded his ignorance

that plaintiff was put in possession of the property on the

date of the agreement. He denied the suggestion that 1st

defendant did not deliver possession to the defendants.

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90. We have also the evidence of DW6-the Power of

Attorney Holder of third defendant. He has stated that the

third defendant prior to purchase of the schedule land

through her son fourth defendant made enquiries regarding

title of 1st defendant over the said land. He was present

throughout the negotiations, registration and thereafter. He

is a family friend of the third and fourth defendants. He

assisted them in all these matters. He has deposed that

prior to purchase, they verified the RTC, katha entries and

encumbrance certificates and found that the property stood

in the name of 1st defendant after the death of her husband

Sri Munishami Gowda and that after being convinced about

the title of 1st defendant, the third defendant purchased the

said land for valuable consideration. At all the time when

they negotiated for the purchase of the land and at the time

of purchase, 1st defendant was in possession of the said land

and as such, she delivered possession of the schedule land

to the third defendant. Immediately after the purchase of

the land, the third defendant submitted necessary

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applications to the revenue authorities and got her name

mutated as kathedar of the said land vide the mutation

register bearing No. 5/93-94. She has been shown as the

person in personal cultivation of the said land in the pahani

register. At no point of time, the name of the plaintiff was

shown in the pahani records. The third defendant planted

mango trees on the said land. The third defendant was not

informed of the alleged agreement of sale, which the first

defendant has entered into with the plaintiff. The third

defendant is totally unaware of the said agreement of sale.

Further, when they made enquiries in the village at the time

of purchase, nobody in the village was aware of any such

agreement of sale. In fact, everyone said that the first

defendant is the owner of the said land and she has valid

title to the said land and therefore, the third defendant

purchased the said land from the first defendant. The third

defendant is in possession of the land in Sy. No. 108

measuring 7 acres 20 guntas.

150

91. In the cross-examination he has stated that, he

made enquiries near the land, village and also with the

Village Accountant. He enquired with one Govindappa, but

he does not remember the other names. He has asserted

that it is he who has planted the mango trees. He is taking

the usufructus from the mango trees. He has also deposed

about the steps he has taken after purchase of the land for

getting the land surveyed and the mutation entries written in

the name of the purchasers.

92. The fourth defendant was also in the witness

box. He deposed that one Muniraju from Kannamangala

Village introduced him to the 1st defendant. He is a broker

and a middle man. They entered into the transactions

through him. He was a local man and he was knowing the

state of affairs at the spot of the suit land. He did not accept

whatever was told by Muniraju. He also visited the spot and

checked the land and also enquired the villagers. He has

gone number of times near the land. When he saw the land

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for the first time, there were nilagiri trees. It may be of 15 to

20 feet height. The trees may be aged about 3 to 4 years.

He does not remember whether the nilagiri trees were cut

and removed in the month of January and February 1991.

He has not enquired with 1st defendant who cut and removed

the nilagiri trees. He asserts that, in his mother's property

they have planted mango trees. Age of mango trees is about

10 to 12 years. He has employed some workers and planted

the mango trees. The mango trees are already yielding

fruits. He has not maintained any accounts regarding the

expenditure incurred.

93. From this evidence it is clear that, it is not as if

that defendants 2 to 4 did not make any enquiries before

purchase of the land. They did make enquiries through their

agents. It is not the law that the purchaser should make

enquiry personally. Explanation II states that, any person

acquiring any immovable property or any share or interest in

any such property shall be deemed to have notice of the title,

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if any, of any person who is for the time being in actual

possession thereof. In other words, for application of

Explanation II, the possession of the property by the plaintiff

is a must. It is only thereafter if no enquiry is made or

search which he ought to have made, is not made, then he is

deemed to have notice. In so far as search is concerned, the

evidence on record shows that plaintiff’s name was not

entered in the RTC. No katha was made out. Agreement

was not registered. The evidence of the defendants clearly

establish that they obtained an encumbrance certificate,

they obtained pahanis, they obtained katha, all of which

showed the name of the first defendant-the vendor. Except

the recital in the agreement of sale that the plaintiff was put

in possession, there is absolutely nothing on record to show

that he was put in possession and more so he continued in

possession. His case of carrying out developmental activities

is held to be not proved. Therefore, on the day the

defendants 3 and 4 purchased the property, there is nothing

on record to show that the plaintiff was in possession of the

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property. The plaintiff relies on a notice issued to the

defendant No.2 by the revenue authorities calling upon her

to be present at the time of survey where a reference is made

to the effect that the plaintiff is in possession of the property.

Relying on that piece of evidence which is marked as Exs.

P16 and 17 it was contended that it shows the plaintiff’s

possession. The evidence on record shows that the plaintiff

is an adjoining land owner. After purchase, when

applications were filed for mutating the name of the second

defendant, he has raised objections contending that he is in

possession. It is in that context he was able to get that

recital in Exs. P16 and 17, the document which has come

into existence subsequent to the date of sale and subsequent

to the dispute between the parties. That is not a document

which establishes the possession of the plaintiff over the

schedule property. In fact, mutation entries were made in

pursuance of the sale deed in favour of defendants 3 and 4

in respect of the property which they have purchased and

there was no such objection. Ultimately, the mutation

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entries were made in the name of the second defendant after

enquiry when they found that the claim of the plaintiff is

baseless. Therefore, the evidence on record do not show

plaintiff’s possession over the schedule property on the day

defendants 2 to 4 purchased the property and as such they

cannot be attributed any notice of any title which the

plaintiff possessed over the schedule property. It is here, it

is necessary to mention that a contract for sale of immovable

property is a contract that sale of such property shall take

place on terms settled between the parties and it does not

itself create any interest in or charge of such property.

Therefore, plaintiff acquired no interest under the agreement

of sale. Secondly, the said agreement is interpolated

resulting in its cancellation. Thirdly, in part performance of

the agreement of sale nothing is done. The plaintiff was not

ready and willing to perform his part of the contract and

therefore no right under Section 53A is acquired by the

plaintiff under the agreement. Defendants 3 and 4 have

purchased the property. The sale is not in dispute. Payment

155

of consideration is not in dispute. Now, mutation entries are

made on the basis of the sale deed in their name. The sale

deed recites that possession is delivered to them on the date

of sale. They have been paying taxes. Subsequently, the

plaintiff has amended the plaint seeking the relief of

possession which shows he is not in possession. In the light

of these proved facts on record, the contention that the

plaintiff was in possession of the land from the date of the

agreement of sale, defendants 2 to 4 failed to make

enquiries, therefore they are deemed to have notice of the

plaintiff’s right over the property and they cannot be

construed as bona fide purchasers for valuable consideration

without notice of the agreement of sale is not established. On

the contrary, the defendants have established that they are

bona fide purchasers for valuable consideration and

defendants 3 and 4 have also established that they have no

notice of the agreement of sale.

94. The trial Court was of the view that from the

evidence of DW6 it goes to show that defendant No.3

156

purchased the property without making any proper enquiry

which is mandatory under law. It did not accept the case of

defendants 3 and 4 that they have purchased the portion of

the suit property without the knowledge of the prior

agreement between the first defendant and plaintiff.

According to the trial Court, the document alleged to be got

executed by defendants 2 to 4 appears to be suspicious

nature of document and they have not purchased the

property for valuable consideration can be gathered from

their evidence only. Therefore, the contention that they are

the bona fide purchasers for value without knowledge of the

agreement falls to the ground. It relies on Exs. P16 and 17

notices issued by the survey authorities where it is

mentioned that plaintiff was in possession of the suit land

and defendants 2 to 4 never came in possession of the

purchased lands at any point of time. Defendants 2 to 4

without verifying as to who are in possession of the property

and without making proper enquiry with any of the adjoining

land owner or villagers, they have ventured to purchase the

157

property and they have got executed the sale deeds from the

first defendant. Hence, it cannot be said that they are bona

fide purchasers for value without notice of the prior

agreement.

95. This reasoning runs counter to the evidence on

record. The execution of the sale deeds in favour of

defendants 2 to 4 is not in dispute at all. DW1 has admitted

in his evidence that the said sale deeds came to be executed

without his knowledge. The executant of the sale deed, the

Power of Attorney Holder of the first defendant has been

examined in this case. The sale deeds are all duly registered.

The consideration mentioned clearly go to show that the

properties were sold for valuable consideration. The revenue

authorities acting on these registered sale deeds have made

mutation entries entering the names of the purchasers.

They have been paying taxes. It is because of the objection

of the plaintiff to mutate the name of the second defendant,

proceedings were initiated. It is in that context Exs. P16 and

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17 came to be issued by the survey authorities. What the

survey authorities are expected to do before conducting the

survey is to issue notice to the adjoining land owners. They

are not the authorities to say who is in possession of the

land. They issued notices to the adjoining owners on the

basis of the title deed. They are not concerned with

possession. Even before conducting survey, they cannot say

in the notice issued for conducting survey who is in

possession of the property. In this background if it is

mentioned in Exs. P16 and P17 that the plaintiff is in

possession of the schedule property, it is because he is the

owner of the adjoining land and because he had filed

objections and as the suit had already been filed by the time

the said proceedings were initiated, he wanted to create

evidence and therefore he has got the same mentioned in the

notice. That notice is not proof of possession of the plaint

schedule property by the plaintiff. Unfortunately, the trial

Court did not consider this document in a proper

perspective. It failed to take note of the contents of the

159

registered sale deed which are validly executed and which

are not in dispute. It erred in holding that the sale deeds are

all executed in suspicious circumstances which is not a case

pleaded by any of the parties. It is on that assumption it has

recorded a finding that defendants 3 and 4 are not the bona

fide purchasers for valuable consideration, a finding which is

contrary to the evidence on record and as such, it is vitiated

and the same is hereby set aside.

POINT No. 4: LIMITATION

96. The defendants 3 and 4 contend that the suit

against them is barred by the law of limitation as they were

impleaded only on 6.8.2000, whereas suit was filed on

22.10.1993 and the date of the agreement being 5.11.1990

the suit is clearly barred by the law of limitation.

97. In this regard it is to be noticed that the plaintiff

has filed the suit for specific performance of the agreement of

sale dated 5.11.1990 on 22.10.1993 impleading only the first

160

defendant-the owner of the schedule property who had

executed the agreement of sale in his favour. The land in

question being an agricultural land, Section 132 of the

Karnataka Land Revenue Act, 1964 mandates that the

plaintiff shall annex with the plaint a certified copy of the

record of rights or register of mutation relevant to the lands,

failing which the plaint shall be rejected. The record of

rights and mutation extracts which are produced along with

the plaint were of the years 1988 and 1990 which only

reflected the name of the first defendant Hanumakka as the

owner. They are marked as Exs. P11 to P14. The suit

having been filed on 22.10.1993, the plaintiff ought to have

obtained the record of rights and mutation extracts as they

stood prior to the date of the suit. It has not been done. It

is the case of the defendants that, when the plaintiff was not

ready with the balance sale consideration, the agreement

came to be cancelled by cancellation deed dated 19.8.1992.

After such cancellation she has sold the properties to

defendants 2 to 4 to the knowledge of the plaintiff. Because

161

the plaintiff was aware that defendants 2 to 4 had purchased

the schedule property under three different sale deeds prior

to the date of the suit, deliberately the plaintiff did not obtain

and produce the record of rights and mutation extracts as on

the date of the suit. If only the record of rights and mutation

extracts had been obtained or an encumbrance certificate

had been obtained, it would have disclosed the name of

defendants 2 to 4 as the owners of the schedule property on

the date of the suit. Therefore, defendants 3 and 4 ought to

have been made defendants in the suit. As the defendants

wanted to obtain an order of temporary injunction against

the defendant No.1 not to alienate the property, these facts

which were all well within the knowledge of the plaintiff has

been deliberately suppressed.

98. The first defendant after service of notice filed

the written statement on 20.2.1994. In the written

statement so filed, in para 7 the defendant has categorically

stated that, though the defendant was entitled to forfeit the

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advance amount, she has graciously returned the amount

and got cancelled the original agreement dated 5.11.1990.

However, she has stated that the suit schedule property was

sold to one Lakshmi Thammaiah of Maddur and Padmini

Raghavan under two separate sale deeds registered in the

office of the Sub-Registrar, Devanahalli. The said land was

sold much earlier to the filing of the suit before the Court.

Out of the sale consideration received by the defendant, the

advance amount has been returned to the plaintiff by

canceling the original agreement dated 5.11.1990. The

plaintiff has executed a separate document canceling the

original agreement and also acknowledged having received or

having taken return of the advance amount from the

defendant. This document is in accordance with oral

understanding reached by plaintiff and defendant when

plaintiff was unable to perform his part of the agreement.

The said document dated 19.8.1992 cancelling the original

agreement dated 5.11.1990 was produced as Annexure – ‘X’

to the written statement.

163

99. From the aforesaid averments it is clear that, at

least on 20.2.1994 the plaintiff became aware that the first

defendant has sold the schedule property under registered

sale deeds in favour of defendants 2 to 4, but still the

plaintiff did not take any steps to get these defendants 2 to 4

impleaded as parties. No effective decree for specific

performance could be granted in the suit filed by the

plaintiff, as, on the date when the suit was filed, first

defendant had ceased to be the owner of the property and

defendants 2 to 4 had acquired title to the property. When

the plaintiff and first defendant probably colluded to defeat

the rights of defendants 2 to 4, the second defendant filed an

application for impleadment in the suit on 27.11.1995. In

fact, the plaintiff filed objections to the said application

opposing the impleadment. However, the trial Court passed

an order allowing the application and second defendant was

impleaded. The second defendant also in para 10 of the

written statement averred that, item Nos. B and D of the

schedule property was sold to one Mr. Anand-the fourth

164

defendant in the suit and item No. A of the schedule property

to one Mrs. Lakshmi Thammaiah-the third defendant, by a

registered sale deed dated 15.2.1992, i.e., much prior to the

institution of the suit by the plaintiff. Subsequently, katha

was also changed in favour of the defendants by an order

dated 21.9.1993 and therefore she contended the suit itself

is not maintainable in view of misjoinder and non-joinder of

parties. The said written statement was filed as aforesaid on

24.7.1996. Even then the plaintiff did not make any effort to

implead defendants 3 and 4. It is only after 3 long years on

2.8.1999 the application is filed by the plaintiff for

impleadment of defendants 3 and 4 which came to be

allowed. They were impleaded on 6.8.2000. These facts are

not in dispute. In this factual background, whether the suit

filed against defendants 3 and 4 is within limitation. In

order to answer this question it is necessary to look into the

relevant statutory provisions governing the issue. The

relevant Article is Article 54 of the Limitation Act 1963 which

reads as under:

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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.

100. Article 54 of the Act 1963 prescribes three years

as the period within which a suit for specific performance

can be filed. The period of three years is to be calculated

from the date specified in the agreement for performance or

in the absence of any such stipulation, within three years

from the date the performance was refused. Even if we

accept the interpolations regarding time for performance in

the agreement of sale as correct, then the suit filed by the

plaintiff on 22.10.1993 is well within time. But, admittedly

defendants 3 and 4 were not impleaded in the said suit.

Now, an application for impleadment has been filed only on

2.8.1999. What is the effect of such impleadment.

166

101. Order I Rule 10(4) and (5) of CPC deals with

addition of defendants. Where defendant is added, plaint to

be amended. It reads as under:-

(4) Where defendant added, plaint to be

amended.- Where a defendant is added,

the plaint shall, unless the Court otherwise

directs, be amended in such manner, as

may be necessary, and amended copies of

the summons and of the plaint shall be

served on the new defendant and, if the

court thinks fit, on the original defendant.

(5) Subject to the provisions of the Indian

Limitation Act, 1877 (15 of 1877), Section

22, the proceedings as against any person

added as defendant shall be deemed to

have begun only on the service of the

summons.

102. Therefore, it is clear that the proceedings as

against any person added as defendant shall be deemed to

have begun only on service of summons. Therefore, it is the

167

date which is subsequent to 2.8.1999. Sub-rule (5) makes it

clear the same is subject to the provisions of the Indian

Limitation Act, 1877 (15 of 1877)(Section 22). Now, Indian

Limitation Act, 1877 is repealed by the Limitation Act, 1908

by Act No. 9/1908. However, Section 22 is retained. It

reads as under:-

"22. Effect of substituting or adding new

plaintiff or defendant. (1) Where, after the

institution of a suit, a new plaintiff or defendant

is substituted or added, the suit shall, as regards

him, be deemed to have been instituted when he

was so made a party.

(2) Nothing in sub-section (1) shall apply to a case

where a party is added or substituted owing to

an assignment or devolution of any interest

during the pendency of a suit or where a plaintiff

is made a defendant or a defendant is made a

plaintiff".

168

103. However, Limitation Act, 36/1963 repealed the

Limitation Act, 1908. Section 21 of the Act 36/1963

corresponds to Section 22. It reads as under : -

"21. Effect of substituting or adding new plaintiff

or defendant. (1) Where after the institution of a

suit, a new plaintiff or defendant is substituted or

added, the suit shall, as regards him, be deemed

to have been instituted when he was so made a

party:

Provided that where the court is satisfied

that the omission to include a new plaintiff or

defendent was due to a mistake made in good

faith it may direct that the suit as regards such

plaintiff or defendant shall be deemed to have

been instituted on any earlier date.

(2) Nothing in sub-section (1) shall apply to a case

where a party is added or substituted owing to

assignment or devolution of any interest during

the pendency of a suit or where a plaintiff is

made a defendant or a defendant is made a

plaintiff."

169

104. It is clear from the aforesaid new provision, that

a proviso is added which was conspicuously missing under

the old Act. In the said proviso the word “good faith” has

been used. The word “good faith” in the proviso has been

defined under the Act at Section 2(h). It reads as under : -

"2.(h) "good faith-nothing shall be deemed to be

done in good faith which is not done with due

care and attention".

105. From a harmonious reading of these provisions

it is clear that, by virtue of sub-rule (5) of Rule 10 of Order I

of CPC where a defendant is added subsequent to the filing

of the suit, by way of impleadment, the plaint shall be

amended. After such amendment summons of the suit shall

be served on the new defendant. The proceedings as against

any person so added as defendant shall be deemed to have

begun only on the service of summons. It is subject to the

provisions contained in the Indian Limitation Act. In Section

22 of the old Act when a new defendant is added, the suit

170

shall as regards him be deemed to have been instituted when

he was so made a party. However, in the new Act a proviso

is added to the effect that if the omission to include a new

defendant was due to a mistake made in good faith, the

Court is vested with the power to direct that the suit as

regards such defendant shall be deemed to have been

instituted on any earlier date. But for this proviso, the suit

is deemed to have been instituted when the defendant who is

added was so made a party. These provisions had been the

subject matter of interpretation by the Apex Court.

106. The Supreme Court in the case of MUNSHI RAM

vs NARSI RAM AND ANOTHER [AIR 1983 SC 271] has held

as under:-

“7. It is clear from the foregoing that there was

no provision corresponding to the proviso to sub-

section (1) of section 21 of the Act in section 22 of

the repealed Act. Under the former Limitation Act

when after the institution of suit a new plaintiff or

defendant was substituted or added, the suit as

171

regards him was to be deemed to have been

instituted when he was so made a party. The

severity of the above law is sought to be reduced

by the introduction of the proviso to section 21 (1)

of the Act which provides that where the Court is

satisfied that the omission to include a new

plaintiff or defendant was due to a mistake made

in good faith, it may direct that the suit as

regards such plaintiff or defendant should be

deemed to have been instituted on any earlier

date. This change in section 21 of the Act appears

to have been made so that an omission to

implead a person owing to a bonafide mistake

does not deprive a plaintiff of his rights against

that person if the Court is satisfied in that behalf.

8. We shall now have to consider whether the

appellant is entitled to claim the benefit of the

proviso to section 21 (1) of the Act and if he is

entitled to it, what is the date on which the suit

against the party proposed to be newly added

should be deemed to have been instituted. It is

not disputed that the appellant had obtained a

certified copy of the sale deed in question from

the office of the Sub Registrar before the suit was

172

filed and in that copy only respondents 1 and 2

had been shown as the vendees. Munni Devi was

not shown in that copy as a vendee. The suit

which was filed on January 29, 1978 was well

within the period of limitation prescribed under

Article 97 of the Act as against respondents 1

and 2. There is no evidence to show that on the

date of the suit the appellant knew by any other

means that there was any other vendee who had

purchased the land along with respondents 1 and

2. In the written statement which was clearly

drafted, the name of Munni Devi was not

mentioned. It merely stated that all the vendees

had not been impleaded as defendants. The

original sale deed which was with respondents 1

and 2 was not produced in Court along with the

written statement. The appellant who had looked

into the certified copy of the sale deed asserted

that the plea that the suit should be dismissed for

non-joinder of necessary parties was untenable

as all the persons who were shown as vendees in

the certified copy had been impleaded. He had no

reason to suspect that there was an error in the

certified copy until the original sale deed was

read out in the trial court by the counsel for

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respondents 1 and 2 on June 14, 1978. It cannot

be presumed that the appellant must have known

that Munni Devi was also a vendee because the

vendor was his father. In fact the appellant had

nothing to gain by not impleading Munni Devi

also as a defendant when he filed the suit and

there could be no motive for doing so. It must,

therefore, be held that the omission to implead

her as a defendant was due to a mistake. If such

mistake is made in good faith, the proviso to

section 21 (1) of the Act would be attracted. The

meaning of the expression 'good faith' is

explained in section 2 (h) of the Act thus:

"2.(h) "good faith-nothing shall be deemed to be

done in good faith which is not done with due

care and attention".

9. In the instant case the appellant had

obtained a certified copy of the sale deed in

question and had filed the suit against

respondents 1 and 2 who alone had been shown

as the vendees in that copy. It has to be held that

in the circumstances he had acted with due care

and attention. When the original of the sale deed

174

was read out in Court by the counsel for

respondents 1 and 2, the appellant realised the

mistake and filed the application on the very next

date i.e. June 15, 1978 with all due diligence.

Hence we are of the view that the suit against

Munni Devi should be deemed to have been filed

on the date of the institution of the suit i.e.

January 29,1978 itself, which on the facts and in

the circumstances of the case, we consider,

should be treated as the 'earlier date' referred to

in the proviso to section 21 (1) of the Act. There is

no dispute that if the suit had been filed against

Munni Devi also on January 29, 1978 it would

have been in time and would not have suffered

from the defect of non-joinder of a necessary

party. The bar of limitation is thus got over by the

appellant. Because Munni Devi is a necessary

party, she has to be impleaded under sub-rule (2)

of Rule 10 of Order I of the Code of Civil

Procedure to enable the Court effectually and

completely to adjudicate upon and settle all the

questions involved in the suit. The application

filed by the appellant on June 15, 1978 is,

therefore, allowed. The amendment of the plaint

regarding the date of cause of action has thus

175

become unnecessary. The judgments and decrees

of the High Court, the first appellate court and the

trial court have, therefore, to be set aside as they

have been passed against the appellant only on

the ground of non-joinder of a necessary party

within time. They are accordingly set aside. The

suit has now to be remanded to the trial court to

dispose it of in accordance with law by recording

findings on the other issues which arise for

consideration in the suit. We accordingly do so.

The plaint shall be permitted to be amended by

the trial court by including the name of Munni

Devi as a defendant before issuing summons to

her.”


KARUPPASWAMY AND OTHERS vs C.RAMAMURTHY

[(1993) 4 SCC 41] has held as under:-

“4. A comparative reading of the proviso to

Sub-section (1) shows that its addition has made

all the difference. It is also clear that the proviso

has appeared to permit correction of errors which

have been committed due to a mistake made in

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good faith but only when the court permits

correction of such mistake. In that event its effect

is not to begin from the date on which the

application for the purpose was made, or from the

date of permission but from the date of the suit,

deeming it to have been correctly instituted on an

earlier date than the date of making the

application. The proviso to Sub-section (1) of

Section 21 of the Act is obviously in line with the

spirit and thought of some other provisions in Part

III of the Act such as Section 14 providing

exclusion of time of proceeding bona fide in court

without jurisdiction, when computing the period of

limitation for any suit, and Section 17(1) providing

a different period of Limitation starting when

discovering - a fraud or mistake instead of the

commission of fraud or mistake. While invoking

the beneficient proviso to Sub-section (1) of

Section 21 of the Act an averment that a mistake

was made in good faith by impleading a dead

defendant in the suit should be made and the

court must on proof be satisfied that the motion to

include the right defendant by substitution or

addition was just and proper, the mistake having

177

occurred in good faith. The court's satisfaction

alone breaths life in the suit.

6. The High Court relied on Ram Prasad

Dagduram v Vijay Kumar Motilal Mirakhanwala

(AIR 1967 SC 278) observing that it virtually

decided the point. It seems the High Court had

discerned and born in mind the following

observations of Bachawat, J. concurring with A.K.

Sarkar, C.J.:

“The Court has power to add a new

plaintiff at any stage of the suit, and in the

absence of a statutory provision like

Section 22 the suit would be regarded as

having been commenced by the new

plaintiff at the time when it was first

instituted. But the policy of Section 22 is to

prevent this result, and the effect of the

section is that the suit must be regarded as

having been instituted by the new plaintiff

when he is made a party, see Ramsebuk v.

Ramlall Koondoo (1881) ILR 6 Cal. 815. The

rigour of this law has been mitigated by the

provision to Section 21(1) of the Indian

178

Limitation Act, 1963, which enables the

court on being satisfied that the omission to

include a new plaintiff or a new defendant

was due to a mistake made in good faith,

to direct that the suit as regards such

plaintiff or defendant shall be deemed to

have been instituted on any earlier date.

Unfortunately, the proviso to Section 21(1)

of the Indian Limitation Act, 1963 has no

application to this case, and we have no

power to direct that the suit should be

deemed to have been instituted on a date

earlier than November 4, 1958.

(emphasis ours)

At the time of the cause the old Indian Limitation

Act, 1908, was in force.”

108. From the aforesaid judgments it is clear that,

under Section 22 of the repealed Act after the institution of

the suit when a defendant was added by way of

impleadment, the suit as regards him was to be deemed to

have been instituted when he was so made a party. The

179

severity of the above law is sought to be reduced by the

introduction of the proviso to section 21 (1) of the new Act

which provides that where the Court is satisfied that the

omission to include a new defendant was due to a mistake

made in good faith, it may direct that the suit as regards

such defendant should be deemed to have been instituted on

any earlier date. This change in section 21 of the Act has

been made so that an omission to implead a person owing to

a bonafide mistake does not deprive a plaintiff of his rights

against that person if the Court is satisfied in that behalf.

Therefore, this addition of the proviso to sub-section (1) has

made all the difference. The intention is to permit correction

of errors which have been committed due to a mistake made

in good faith, but only when the court permits correction of

such mistake. In that event its effect is not to begin from the

date on which the application for the purpose was made, or

from the date of permission, but from the date of the suit,

deeming it to have been correctly instituted on an earlier

date than the date of making the application. The said

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proviso is in line with the spirit and thought of other

provisions in Part III of the Act such as Section 14 providing

exclusion of time of proceeding bona fide in court without

jurisdiction, when computing the period of limitation for any

suit, and Section 17(1) providing a different period of

limitation starting when discovering a fraud or mistake

instead of the commission of fraud or mistake. While

invoking the beneficient proviso an averment that a mistake

was made in good faith by impleading should be made and

the court must on proof of the same be satisfied that the

motion to include the new defendant by substitution or

addition was just and proper and the mistake has occurred

in good faith. The court's satisfaction alone breaths life in

the suit.

109. Invoking this provision, an application under

Section 21(1) of the Limitation Act read with Section 104 of

the CPC is filed on 2.11.2010 before this Court requesting

this Court to hold that the impleadment of the appellants

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who are defendant Nos. 3 and 4 in O.S. No. 316/1993 is

deemed to have come on record on the date of institution of

suit i.e., on 22.10.1993. This application is registered as

Misc. Cvl. 19451/2010. In support of the application, the

plaintiff has sworn to an affidavit. After referring to the

plaint allegations and the contents of the agreement of sale,

in para 3 of the affidavit he has sworn to the fact that,

subsequent to service of summons, the respondent No.2

herein being the defendant No.1 appeared and she on 21-02-

1994 has placed the written statement on record. In the

written statement filed by her at para 7 she has stated that

she has sold the property to one Smt. Lakshmi Thimmaiah of

Maddur and Smt. Padmini Raghavan under two separate

sale deeds which are registered in the office of the Sub-

Registrar, Devanahalli. The defendant No.1 has not made

clear when she has sold the properties and to whom and

also did not furnish the correct name and address of the

purchasers nor did she produce the copies of those sale

deeds before the trial Court. At para 4 it is stated even after

182

impleadment the defendant Nos.3 and 4 also did not produce

the sale deeds before the trial Court. The properties alleged

to have been purchased by the appellants herein were not

the subject matter of any revenue dispute. However, there

was a survey dispute between them and him, which has

taken shape in 2000-01 and by then they were already on

record as defendant No.3 and 4. As such he had no

knowledge about the said transactions effected by the

defendant No.1 in favour of the defendant Nos.3 and 4 and

about the sale transactions dated 15-02-2010 on the day

when he filed the suit. If he had the knowledge of the sale

transactions definitely he would have made them as

defendants in the suit filed by him. Subsequent to the

defendant No.1 filing of the written statement, he did his

level best to know as to who are all the persons who have

purchased the suit schedule properties from the defendant

No.1 and also the sale deeds executed by defendant No.1 in

their favour. Despite his sincere efforts he was unable to

trace out the sale deeds executed by the defendant No.1 in

183

favour of defendant Nos.3 and 4. On 20-11-1995 the counsel

appearing for defendant No.2 at the trial Court had served a

copy of the impleading application i.e., .I.A. No.3 on his

counsel stating that she has purchased the land bearing

Sy.No.112 measuring 10 acres situated at Thaligere, which

is one of the properties covered under the agreement of sale

deed 5-11-1990. Said application was moved on 3-1-1996.

His counsel who appeared before the trial Court had stated

no objection for allowing the said application i.e., IA No.3,

which came to be allowed on 11-3-1996. Subsequently, the

plaint was amended accordingly. As regards the

impleadment of the appellants in RFA No.1312/2003, who

was the defendant No.3 and 4 at the trial Court are

concerned, 3 days earlier to 21-06-1999 he went to the

concerned Village Accountant of Devanahalli to remit the

Kandayam in respect of the suit schedule properties i.e.,

during the third week of June 1999. The Village Accountant

declined to accept the Kandayam from him on the ground

that some one has remitted the same, when he questioned

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the Village Accountant as to who remitted the Kandayam in

respect of the suit schedule properties he revealed that Smt.

Lakshmi Thimmaiah, Sri V.T. Ananda have remitted the

Kandayam. He was shocked to hear the same. Then he

enquired with the Village account as to how the Kandayam

was received from them in respect of the lands bearing

Sy.No.108, 109, 113 of Thailgere Village. He after going

through the records maintained by him informed him that

1st defendant has sold the lands bearing Sy.No.109 and 113

in favour of V.T. Anand and Sy.No.108 in favour of Smt.

Lakshmi Thimmaiah, under the two sale deeds both dated

15-02-1992. After coming to know the same, he went and

searched in the Office of the Sub-Registrar, Devanahalli, to

verify the same. Upon search he was able to know that the

sale transaction effected by defendant No.2 in favour of

defendant Nos.3 and 4 on 15-02-1992. On 21-6-1999 he

applied for a certified copy of the said sale deeds dated 15-

02-1992 and the certified copies of the sale deeds were made

available to him on 24-06-1999. After obtaining the certified

185

copies of the sale deeds he came to know about the illegal

sale effected by defendant No.1 in favour of defendant Nos. 3

and 4. Thereafter he instructed his Advocate who was

appearing at the trial Court to make an application to

implead them as additional defendants. Accordingly, the

impleading application was filed on 02-08-1999 which was

allowed on 06-06-2000. The trial Court while allowing the IA

No.6 recorded as hereunder:

“It is submitted that the plaintiff was not aware of

these transactions when the suit was filed

against the defendants for specific performance of

the contract dated 05-11-1990. Since the

proposed defendants are necessary parties hence

IA No.6 filed by the plaintiff is allowed”.

110. Therefore, he contends that he had no

knowledge of the sale transactions effected by defendant

No.1 in favour of the appellants i.e., defendant Nos.3 and 4

till he obtained the certified copies of the sale deeds. It was

only on 24-06-1999 he came to know about the sale

186

transactions effected by 1st defendant in favour of defendant

Nos.3 and 4 i.e., upon going through the said sale deeds.

Therefore the delay was neither deliberate nor an intentional

one. On the other hand, it was for want of knowledge, which

is a mistake in good faith. The application for impleading

was not filed soon after the filing of the written statement by

the first defendant for the bonafide reason stated above.

When the suit filed was in time, the impleadment of the

defendant Nos.3 and 4 shall take effect from the date of the

suit and not from the date of allowing the application for

impleadment. Therefore, he prayed that the Court should

direct that the suit has been instituted on an earlier date i.e.,

on 22.10.1993.

111. An application under Section 5 of the Limitation

Act was also filed to condone the delay in filing the said

application on the very same day which is numbered as

Misc. Civil 19452/2010. Again the same averments are

reiterated in the affidavit filed in support of the application.

187

112. Defendants 3 and 4 have filed a detailed

objections to the said application. They contend that, the

discretionary power under Section 21(1) is exercisable only

by the trial Court and since the plaintiff/applicant had

neither sought for such a relief no such relief was granted by

the trial Court, the prayer in the present application is not

maintainable. The application is filed at an abnormally

belated stage. The application in question was not filed

before the trial Court but even before this Court the same is

filed at the fag end of the hearing of the appeal which has

been heard for several days and in fact, after the arguments

of the defendant No.3 and 4 is concluded. The applications

are filed more than 7 years after the filing of the appeal and

more than 11 years from the filing of the impleading

application in the trial Court. Therefore the said application

is not maintainable.

113. They have traversed the allegations in each and

every para and have contended that the conduct of the

188

plaintiff disentitles him to a discretionary relief of specific

performance. Apart from the fact that the date of knowledge

of the plaintiff is immaterial, various circumstances in the

case would clearly establish plaintiff’s knowledge of the sale

deed in favour of these appellants. The plaintiff is deemed to

have knowledge of the sale deed from the date of its

registration i.e., 26-06-1992 as per explanation 1 to Section

3 of the Transfer of Property Act, 1882. Furthermore as per

Section 132 of the Karnataka Land Revenue Act, 1964 which

mandates that the plaintiff should annex a certified copy of

the record of rights or register of mutation relevant to the

lands, failing which the plaint shall be rejected. In the

present case the plaintiff, being fully aware that prior to the

institution of the suit, defendant No.1 had sold items A, B

and D properties to the appellants herein, has attempted to

suppress the same by producing the revenue records of the

years 1988 to 1990 and not for the period between 1990 to

1993. This discloses the dishonest intention of the plaintiff.

Further more the written statements of defendants 1 and 2

189

filed on 20-02-1994 and 06-07-1996 also discloses the

execution of sale deeds in favour of the defendants 3 and 4.

However in spite of bringing the same to the knowledge of

the plaintiff, he has chosen not to implead them within the

prescribed period of limitation. Viewed from any angle the

averments made in the application are devoid of merit and

contains concoctions and inventions only for the purpose of

this application and therefore they sought for dismissal of

the application.

114. It is in the light of these averments in the

application filed under Section 21(1) of the Limitation Act

and in the background of this case we have to see whether

the omission to include defendants 3 and 4 was due to a

mistake made in good faith so as to invoke the discretionary

power conferred on the Court to condone the delay in

impleading defendants 3 and 4 and to hold that the suit as

against them is instituted on the day of the suit i.e.,

22.10.1993. In the case of Munshi Ram the Apex Court

190

condoned the delay because in the certified copy of the sale

deed which was obtained by the plaintiff in the said suit, it

only showed the name of two persons as vendees who were

impleaded in the suit as first defendant. The third

purchaser’s name was not found in the certified copies made

available. It is only when the original sale deed was read out

in the Court by the defendants, the plaintiff realised the

mistake and came to know that there was a third vendee.

Then realising the mistake, application was filed on the very

next day with all due diligence. In those circumstances, the

Court exercising the power under the proviso to Section

21(1) of the new Act held the suit is deemed to have been

filed on the date of the suit and not on the day the

application for impleadment is filed. That is the due

diligence that is expected before the Court could exercise its

power. In the instant case the suit is filed on 22.10.1993.

Section 132 of the Karnataka Land Revenue Act mandates

that, when the suit is filed in respect of the agricultural land,

record of rights and mutation extracts should accompany

191

the plaint, otherwise the plaintiff is to be rejected. The

plaintiff who was aware of the said provisions produced RTC

of the year 1988-89 as Exs. P11 to P14 which was for the

period 1988-1990. They ought to have obtained the RTC of

the period immediately prior to the suit, i.e., for 1992-93

which in the facts of the case we are convinced deliberately

they have not done. It is because in the examination in chief

of the plaintiff at para 7 he has stated that before the first

defendant sold the schedule properties to defendants 2 to 4,

he had cancelled the agreement of sale dated 5.11.1990.

Therefore, he was aware of the cancellation of the agreement

dated 5.11.1990 on the day he filed the suit. If he had only

obtained RTC or mutation extract or encumbrance certificate

he would have known the property had been alienated in

favour of defendants 2 to 4. In fact the defendants have

produced Exs. D22 and D23 which show their name was

entered in the RTC in respect of the schedule property on

20.9.1993, roughly a month prior to the filing of the suit.

As the plaintiff wanted an interim order restraining the first

192

defendant from alienating the property, he produced the

revenue records showing the first defendant as the owner

and then obtained an interim order restraining him from

alienating the property. However, on the day when the suit

was filed and on the day the injunction order was granted,

the alienation had already taken place. This is not a bona

fide conduct on the part of the plaintiff. After service of

summons, the first defendant entered appearance. She filed

her written statement on 20.2.1994 clearly setting out the

date of the sale deed under which she had sold the property

in favour of defendants 2 to 4. The grievance is that, full

particulars and addresses of the purchasers is not

furnished. If only the plaintiff had applied for encumbrance

certificate it would have given the full particulars of the

alienation made and after obtaining the said particulars they

could have applied for certified copies as was done in the

year 1999 and the certified copies of the sale deeds would

have disclosed the particulars of the defendants. That is the

due diligence expected of the plaintiff, which he has

193

miserably failed to exercise. The second defendant filed an

application to implead herself. After she was impleaded she

has filed her written statement on 24.7.1996 giving full

particulars of sale deed executed by the first defendant not

only in her favour, but also in favour of defendants 3 and 4.

Again the plaintiff did not raise his little finger. He did not

obtain the certified copies of the sale deed or the

encumbrance certificate. It is only 3 years thereafter, the

application for impleadment is filed on 2.8.1999. After

impleadment the plaintiff did not invoke the jurisdiction of

the Trial Court under Section 21(1) of the Limitation Act and

sought for condoning the delay and to treat the suit having

been filed against defendants 3 and 4 on the date of the suit

itself. Merely because the application was allowed by the

Court it does not have the effect of suit against defendants 3

and 4 being filed on the date of the suit. No such order is

passed. Therefore, when Order I Rule 10 application is

allowed, the effect is that the proceedings against the

defendant shall be deemed to have begun only on the date of

194

service of summons. It is only when the Court passes an

order in terms of proviso to Section 21(1) of the Limitation

Act, 1963 it could be deemed to have been instituted on the

date of the suit. No application was filed. No prayer was

made. The trial Court proceeded and decreed the suit

without properly appreciating this legal position though

specific plea was taken in the written statement that the suit

action is barred by the law of limitation. Aggrieved by the

said judgment and decree dated 10-07-2003, the appellants

preferred the appeal before this Court. The appeal is filed on

16.10.2003. The appellants reiterated the said ground of

limitation in the said appeal memo. Appeal was heard by

another Bench. It is only when the appellant pointed out the

aforesaid provisions of law and contended before this Court

that the trial Court has committed serious error in holding

that the suit is in time then the present applications are

filed, nearly 7 years after the filing of this appeal. Therefore,

this application is filed 11 years after the application filed

under Order I Rule 10(2) CPC and 7 years after the filing of

195

the appeal. The Court gets the jurisdiction to pass an order

to the effect that the suit is deemed to have been instituted

on an earlier date only if the omission to include the

defendant was due to a mistake beyond good faith. Good

faith is defined under the Act to mean an act done with due

care and attention. Therefore, the admitted facts set out

above shows that there is no due care and attention

expected by the plaintiff throughout. The affidavit filed in

support of the application is full of falsehood, contrary to the

admitted material on record. The conduct of the plaintiff

throughout is mala fide. An attempt is made to suppress

facts from the Court. An interim order is obtained by

suppressing true facts. In spite of the fact that at the earliest

point of time this alienation is brought to the notice of the

plaintiff, he did not move his little finger to find out the

particulars of the alienation and to implead defendants at

the earliest point of time. Therefore, no case for exercising

the power under the proviso to Section 21(1) is made out. In

fact, that is a power to be exercised by the trial Court and

196

not by the Appellate Court. The Appellate Court is precluded

from exercising such power for the first time when no such

request is made to the trial Court and the trial Court has not

exercised the power. Suffice it to state in the facts of this

case, as the plaintiff has not exercised due care and

attention and this act is not in good faith, the plaintiff is not

entitled to the benefit of the proviso to Section 21(1) of the

Limitation Act, 1963. Consequently, the suit filed by plaintiff

against defendants 3 and 4 is clearly barred by the law of

limitation. Accordingly, the aforesaid Misc. Cvl. Application

Nos. 19451/2010 and 19452/2010 are liable to be

dismissed and they are dismissed.

POINT No.5: DELAY AND LATCHES

115. It is contended on behalf of the defendants that

the date of agreement is dated 5.11.1990. The legal notice is

issued on 19.1.1993, i.e., nearly after 2 years after the date

of the agreement. Even thereafter immediately suit is not

filed. 8 months thereafter second legal notice was issued on

197

21.9.1993. It is only thereafter the suit is filed on

22.10.1993, few days prior to the expiry of three years

period. Though the suit is filed within three years, whether

there was any justification for the delay in filing the suit. It is

only after the property is sold by the first defendant to

defendants 2 to 4, the suit is brought by interpolating the

suit agreement, i.e., the agreement of sale. The dates speak

for themselves.

116. The law on the point if fairly well settled. The

Supreme Court in the case of VEERAYEE AMMAL V. SEENI

AMMAL [(2002) 1 SCC 134] held as under:-

“11. When, concededly, the time was not of the

essence of the contract, the appellant-plaintiff

was required to approach the court of law within

a reasonable time. A Constitution Bench of this

Hon'ble Court in Chand Rani v. Kamal Rani held

that in case of sale of immovable property there is

no presumption as to time being of the essence of

the contract. Even if it is not of the essence of

198

contract, the court may infer that it is to be

performed in a reasonable time if the conditions

are (i) from the express terms of the contract; (ii)

from the nature of the property; and (iii) from the

surrounding circumstances, for example, the

object of making the contract. For the purposes of

granting relief, the reasonable time has to be

ascertained from all the facts and circumstances

of the case.”

It was furthermore observed:

13. The word “reasonable” has in law prima facie

meaning of reasonable in regard to those

circumstances of which the person concerned is

called upon to act reasonably knows or ought to

know as to what was reasonable. It may be

unreasonable to give an exact definition of the

word “reasonable”. The reason varies in its

conclusion according to idiosyncrasy of the

individual and the time and circumstances in

which he thinks. The dictionary meaning of the

“reasonable time” is to be so much time as is

necessary, under the circumstances, to do

conveniently what the contract or duty requires

199

should be done in a particular case. In other

words it means, as soon as circumstances permit.

In P. Ramanatha Aiyar's The Law Lexicon it is

defined to mean:

`A reasonable time, looking at all the

circumstances of the case; a reasonable time

under ordinary circumstances; as soon as

circumstances will permit; so much time as is

necessary under the circumstances, conveniently

to do what the contract requires should be done;

some more protracted space than `directly'; such

length of time as may fairly, and properly, and

reasonably be allowed or required, having regard

to the nature of the act or duty and to the

attending circumstances; all these convey more or

less the same idea.'

19. It is also a well settled principle of law that

not only the original vendor but also a subsequent

purchaser would be entitled to raise a contention

that the plaintiff was not ready and willing to

perform his part of contract. [See Ram Awadh

(Dead) by LRs. & Ors. v. Achhaibar Dubey & anr;

[(2000) 2 SCC 428 para 6]

200

20. We are, however, in agreement with Mr. Lalit

that for the aforementioned purpose it was not

necessary that the entire amount of consideration

should be kept ready and the plaintiff must file

proof in respect thereof. It may also be correct to

contend that only because the plaintiff who is a

Muslim lady, did not examine herself and got

examined on her behalf, her husband, the same

by itself would lead to a conclusion that she was

not ready and willing to perform her part of

contract.

21. If the plaintiff has failed to establish that she

had all along been ready and willing to perform

her part of contract, in our opinion, it would not be

necessary to enter into the question as to whether

the defendant Nos.5 and 6 were bona fide

subsequent purchasers for value without notice or

not.”


K.S.VIDYANADAM AND OTHERS vs VAIRAVAN [AIR 1997

SC 1751] has held as under: -

201

“9. Article 54 of the Limitation Act prescribes

three years as the period within which a suit for

specific performance can be filed. The period of

three years is to be calculated from the date

specified in the agreement for performance or in

the absence of any such stipulation, within three

years from the date the performance was

refused.

10. It has been consistently held by the courts in

India, following certain early English decisions,

that in the case of agreement of sale relating to

immovable property, time is not of the essence of

the contract unless specifically provided to that

effect. The period of limitation prescribed by the

Limitation Act for filing a suit is three years. From

these two circumstances, it does not follow that

any and every suit for specific performance of the

agreement [which does not provide specifically

that time is of the essence of the contract] should

be decreed provided it is filed within the period of

limitation notwithstanding the time limits

stipulated in the agreement for doing one or the

other thing by one or the other party. That would

amount to saying that the time-limits prescribed

202

by the parties in the agreement have no

significance or value and that they mean nothing.

Would it be reasonable to say that because time

is not made the essence of the contract, the time-

limits specified in the agreement have no

relevance and can be ignored with impunity? It

would also mean denying the discretion vested in

the court by both Sections 10 and 20. As held by

a Constitution Bench of this Court in Chand Rani

v. Kamal Rani , "it is clear that in the case of sale

of immovable property there is no presumption as

to time being the essence of the contract. Even if it

is not of the essence of the contract, the court may

infer that it is to be performed in a reasonable

time if the conditions are (evident?): (1) from the

express terms of the contract; (2) from the nature

of the property; and (3) from the surrounding

circumstances, for example, the object of making

the contract". In other words, the court should

look at all the relevant circumstances including

the time-limits specified in the agreement and

determine whether its discretion to grant specific

performance should be exercised. Now in the case

of urban properties in India, it is well-known that

203

their prices have been going up sharply over the

last few decades - particularly after 1973*.

11. …… Indeed, we are inclined to think that the

rigor of the rule evolved by courts that time is not

of the essence of the contract in the case of

immovable properties - evolved in times when

prices and values were stable and inflation was

unknown - requires to be relaxed, if not modified,

particularly in the case of urban immovable

properties. It is high time, we do so. learned

Counsel for the plaintiff says that when the

parties entered into the contract, they knew that

prices are rising; hence, he says, rise in prices

cannot be a ground for denying specific

performance. May be, the parties knew of the

said circumstance but they have also specified

six months as the period within which the

transaction should be completed. The said time-

limit may no amount to making time the essence

of the contract but it must yet have some

meaning. Not for nothing could such time-limit

would have been prescribed. Can it be stated as

a rule of law or rule of prudence that where time

is not made the essence of the contract, all

204

stipulations of time provided in the contract have

no significance or meaning or that they are as

good as nonexistent? All this only means that

while exercising its discretion, the court should

also bear in mind that when the parties prescribe

certain time-limits for taking steps by one or the

other party, it must have some significance and

that the said time-limits cannot be ignored

altogether on the ground that time has not been

made the essence of the contract [relating to

immovable properties].

118. The Apex Court in the case of MADEMSETTY

SATYANARAYANA V. YELLOJI RAO [AIR 1965 SC 1405],

held as under : -

“As Article 113 of the Limitation Act prescribes a

period of 3 years from the dated fixed thereunder

for specific performance of a contract, it follows

that mere delay without more extending up to the

said period cannot possibly be a reason for a

court to exercise its discretion against giving a

relief of specific performance. Nor can the scope of

the discretion, after excluding the cases

205

mentioned in Section 22 of the Specific Relief Act,

be confined to waiver, abandonment or estoppel.

If one of these three circumstances is established,

no question of discretion arises, for either there

will be no subsisting right or there will be a bar

against the assertion. So, there must be some

discretionary field unoccupied by the three cases,

otherwise the substantive section becomes otiose.

It is really difficult to define that field. Diverse

situation may arise which may induce a court not

to exercise the discretion in favour of the plaintiff.

It may better be left undefined except to state

what the section says, namely, discretion of the

court is not arbitrary,, but sound and reasonably

guided by judicial principles and capable of

correction by a court of appeal.

[emphasis supplied]

Subba Rao, J., speaking for the Bench, pointed

out the distinction between Indian Law and the

English Law on the subject and stated the

conclusion in the following words: "While in

England, mere delay or laches may be a ground

for refusing to give a relief of specific

performance, in India mere delay without such

conduct on the part of the plaintiff as would

206

cause prejudice to the defendant does not

empower a court to refuse such a relief.... It is not

possible or desirable to lay down the

circumstances under which a court can exercise

its discretion against the plaintiff. But they must

be such that the representation by or the conduct

or neglect of the plaintiff is directly responsible in

inducing the defendants to change his position to

his prejudice or such as to bring about a situation

when it would be inequitable to give him such a

relief."

13. In the case before us, it is not mere delay. It is

a case of total inaction on the part of the plaintiff

for 2½ years in clear violation of the term of

agreement which required him to pay the

balance, purchase the stamp papers and then

ask for execution of sale deed within six months.

Further, the delay is coupled with substantial rise

in prices - according to the defendants, three

times - between the date of agreement and the

date of suit notice. The delay has brought about a

situation where it would be inequitable to give the

relief of specific performance to the plaintiff.”

207

119. From the aforesaid judgment of the Apex Court it

is clear that, in the case of sale of immovable property there

is no presumption as to time being the essence of the

contract. Even if it is not the essence of the contract, the

Court may infer that it is to be performed within a reasonable

time, if the conditions are evident from the express terms of

the contract, from the nature of the property and from the

surrounding circumstances. For example, the object of

making the contract. In other words, the Court should look at

all the relevant circumstances including the time-limits

specified in the agreement and determine whether its

discretion to grant specific performance should be exercised.

One such fact which the Courts should take note of is that in

the case of urban properties in India, it is well-known that

their prices have been going up sharply over the last few

decades - particularly after 1973. This rule that the time is

not the essence of the contract in the case of immovable

properties was evolved in times when prices and values were

stable and inflation was unknown. The same requires to be

208

relaxed, if not modified, particularly in the case of urban

immovable properties. Where time is not the essence of the

contract, but still when stipulations of time is provided in the

contract, the significance or meaning of such stipulation as to

time cannot be completely ignored. The Court while

exercising the discretion should also bear in mind that when

the parties prescribe certain time limits for taking steps by

one or the other party, it must have some significance and

that the said time limits cannot be ignored altogether on the

ground that time has not been made the essence of the

contract. While in England, mere delay or laches may be a

ground for refusing to give a relief of specific performance, in

India mere delay without such conduct on the part of the

plaintiff as would cause prejudice to the defendant does not

empower a Court to refuse such a relief. If the conduct or

neglect of the plaintiff is directly responsible in inducing the

defendants to change his position to his prejudice or such as

to bring about a situation when it would be inequitable to

209

give him such a relief, the Court will be well within its

jurisdiction to refuse specific performance.

120. In the instant case, the agreement stipulates 6

months as the period of stipulation. According to the parties

it was reduced to 3 months by way of correction.

Subsequently, 3 months has been made 13 months by way

of interpolation. As is clear from the terms of the agreement,

out of the sale consideration of Rs.3,47,100/-, Rs.75,000/-

was paid under the agreement according to the first

defendant. According to the plaintiff Rs.1,75,000/- was

paid. According to the interpolated term, Rs.1,00,000/- has

to be paid within 13 months and the balance amount is to be

paid within 3 months. As is clear from the terms of the

agreement, there is no corresponding obligation which is to

be performed by the first defendant before the plaintiff pays

the balance consideration agreed upon. Within the time

stipulated plaintiff has not pointed out to the defendant No.1

what is the obligation she was expected to perform so that

210

the plaintiff could pay the balance consideration and obtain

a sale deed. In the evidence an attempt is made to contend

that, in the agreement of sale it is mentioned that the

balance consideration was payable only after the property is

surveyed and the sale deed is to be executed. There is no

such recital in the sale deed. On the contrary, the recital is,

it is the responsibility of the first defendant to get the

measurement of the property done and boundaries fixed.

She has already handed over xerox copies of all the

documents of title. The said survey and fixing the boundary

was not a condition precedent for the plaintiff to pay the

balance sale consideration as contended. Therefore, the

plaintiff ought to have paid the balance consideration

according to them within 13 months, according to the first

defendant within 3 months. However, the plaintiff has not

paid the amount even according to his own case. It is

because he did not possess the requisite money, he agreed to

the cancellation of the sale deed. Consequently, the first

defendant sold the property and from the consideration

211

received the first defendant instead of forfeiting the amount

has returned Rs.75,000/- received under the agreement of

sale to the plaintiff. It is in this context, if really the plaintiff

has paid Rs.1,75,000/- as contended by them and was ready

and willing to pay the balance amount of Rs.1,72,100/-

within 13 months and if the defendant has not come forward

to execute the sale deed, though time is not the essence of

the contract, the suit for specific performance ought to have

filed within a reasonable time. It is here for nearly two long

years the plaintiff has not raised his little finger. There is no

demand in writing. As set out earlier, there is no material

placed on record to show that he was ready with the balance

sale consideration. The plaintiff has chosen to file the suit

few days prior to the expiry of the period of limitation. In

that context, it is not a case of mere delay, it is a case of total

inaction on the part of the plaintiff for two years in clear

violation of the terms of the agreement which required him to

pay the balance consideration and then ask for execution of

the sale deed. Further, as the plaintiff was badly in need of

212

money after cancelling the agreement of sale, she has

proceeded to sell the property to defendants 2 to 4. They

have purchased the property for a valuable consideration.

The second defendant has purchased it on the assumption

that the suit agreement is cancelled. In so far as defendants

3 and 4 are concerned, they are not aware of the agreement

of sale at all. As the defendants 2 to 4 have purchased the

schedule property for valuable consideration and have taken

possession of the property and have invested money for its

improvement coupled with the fact that the mutation entries

are made in their name, they are paying taxes, the delay in

filing the suit has brought about a situation where it would

be inequitable to give the relief of specific performance to the

plaintiff. Moreover, when the plaintiff has not come to the

Court with clean hands, he has interpolated the material

terms of the agreement of sale, certainly such conduct

disentitles the plaintiff from invoking the discretionary relief

of specific performance at the hands of this Court.

213

APPLICATION FOR ADDITIONAL EVIDENCE

121. This application – Misc. Civil No. 13365/2010 is

filed by the second defendant for production of additional

documents, namely a Xerox copy of the cancellation deed

dated 13.8.1992 and a copy of the reply to the legal notice

dated 22.2.1993. The first defendant in para 8 of her written

statement has categorically stated that the original

agreement dated 5.11.1990 is cancelled by a deed of

cancellation dated 13.8.1992. It is also stated the original

agreement is produced as Annexure-X to the written

statement. However, the same was not marked during trial.

It is submitted that the same was not available. Therefore,

in the appeal the aforesaid application is filed along with a

Xerox copy of the said agreement and a copy of the legal

notice requesting the Court to permit the second defendant

to produce the said documents.

122. This Court by its order dated 13.9.2010 after

going through the order sheet dated 4.3.1994 of the trial

214

Court in O.S. No. 316/1993 had noticed that the said

document is kept in safe custody. Therefore, this Court

directed the High Court registry to secure the documents. In

pursuance of the said direction issued, the document was

secured as is clear from the order sheet dated 4.10.2010.

Therefore, the original is also now before the Court. But, the

question is, whether the application filed under Order 41

Rule 27 CPC requires to be allowed.

123. The said documents are relied on by the

defendants to show that the suit agreement is cancelled and

therefore the suit is liable to be dismissed and no specific

performance could be granted on the basis of an agreement

which is cancelled. From the discussions aforesaid, we have

held the suit document is interpolated and therefore the

material alteration in the suit agreement has rendered the

agreement of sale void, unenforceable and has the effect of

canceling the document. We have also held that the plaintiff

was not ready and willing to perform his part of the contract

215

and therefore he is not entitled to specific performance. We

have also further held that defendants 3 and 4 are bona fide

purchasers for valuable consideration without notice of the

suit agreement. Further, we have held the suit against

defendants 3 and 4 is barred by limitation. Lastly, we have

held the suit is liable to be dismissed on the ground of delay

and latches. Therefore, we have already come to the

conclusion that the suit is liable to be dismissed on the

aforesaid grounds.

124. In the light of the aforesaid findings recorded

already, this additional evidence which is now sought to be

produced, if proved would show that the suit agreement is

cancelled and it is not enforceable. Even without such a

deed of cancellation we have held the suit agreement stands

cancelled because of interpolation and not enforceable for

the reasons set out therein. Therefore, no prejudice is

caused to defendant No.2 by not allowing her to rely on these

documents. Even without those documents she succeeds in

216

the suit. For the aforesaid reasons we do no not see any

justification to allow the said application. Accordingly, the

application is dismissed.

125. In the light of the aforesaid discussion, the

judgment and decree of the trial Court is liable to be set

aside. Hence, we pass the following:-

O R D E R

(a) Both the appeals are allowed.

(b) The judgment and decree of the trial Court is hereby

set aside.

(c) The suit of the plaintiff is dismissed.

(d) The plaintiff is liable to pay costs of these appeals.

Sd/- JUDGE

Sd/- JUDGE

JT/CKL

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