Section 16(c) of the Specific Relief Act clearly
provides that in a suit for specific performance, the plaintiff must plead and prove that he/she was willing to perform the essential terms of the contract. Readiness and willingness to perform the contract cannot be only the end of the term/period of the agreement but must be continuous. In the reply letter dated 3rd May 1976, the respondent no.1 not only repudiated the agreement but demanded back the sum of Rs.20,000/-. She has thus exhibited her unwillingness to perform her part of the contract and to purchase the land. In the circumstances, the finding recorded by the two courts below that the respondent no.1 had proved her readiness and willingness to perform the contract is not only erroneous but clearly perverse.
Bombay High Court
Shantabai Bhima Sangle vs Sau. Yamunabai Waliba Kedar on 1 October, 2008
Bench: D.G. Karnik
Citation;2009 (5) ALL M R 321 Bombay1. This appeal is directed against the judgment and order dated 13th November 1997 passed by the Additional District Judge, Nashik dismissing the appellants' appeal bearing Civil Appeal No.13 of 1990.
2. Appellant no.1 is the widow and appellants nos.2 and 3 are the son and daughter respectively of Bhima Laxman Sangle (since deceased). By an agreement of sale dated 13th April 1976, Bhima agreed to sell to the respondent no.1 (hereinafter referred to as "the respondent") 4 acres from the eastern side of gat no.438 of village Dodi Budruk, District Nashik (hereinafter referred to as "the suit property") for a consideration of Rs.21,000/-. There was exchange of notices between Bhima and the respondent in the year 1976. 3
However, nothing was done by the respondent till the year 1984. On 3rd September 1984, the respondent issued a notice to the appellants claiming specific performance of the agreement of sale dated 13th April 1976. On 7th September 1984. the appellants replied the said notice denying the contentions therein and refusing to execute the sale deed. On 24th January 1985, the respondent filed a suit against the appellants for specific performance of the agreement for sale. Respondents nos.2 to 8, who were the co-owners of gat no.438, were also joined as party defendants to the suit in order to obviate any objection from them. Respondents nos.2 to 8 however did not contest the suit and are also absent in the appeal.
3. After consideration of the oral and documentary evidence, the trial court passed a decree for specific performance. Appeal filed by the appellants was dismissed by the order dated 13th November 1997 only with a small modification directing the appellants to apply to the Collector for permission for sale and directing execution of the sale deed after the grant of permission. That decision is impugned in this appeal.
4. By an order dated 7th January 1998, the appeal was admitted by this Court as to the following substantial questions of law: 4
(1)Whether after deceased Bhima had sought permission from the Collector to sell the land in terms of the agreement itself and on the permission being refused, could the Court decree the suit for specific performance of the contract?
(2)If permission was not required, could a suit for specific performance of the contract in respect of the agreement dated 13th April 1976 be instituted in the year 1985, more so after the Collector's letter dated 30th November 1976? Would not such a suit be barred by limitation?
5. After hearing the learned counsel for the parties, I have framed the following additional substantial question of law: (3) Whether the finding recorded by the court below that the respondent was ready and willing to perform her part of the contract, is perverse and contrary to the documents on record?
My answers to the above questions are as follows:- (1)No
5
(2)Suit was barred by limitation.
(3)The finding of court below that the respondent was ready and willing to perform her part of the contract is perverse and contrary to the unimpeachable evidence on record. Re: Question No.(3)
6. The appellants had produced on record the original reply dated 3rd May 1976 given by the respondent to their notice dated 17th April 1976. The document was filed at sr.no.1 of the list (Exhibit-23) in the trial court. The trial court has not referred to this notice at all. The lower appellate court in paragraph 10 of the judgment has observed that no such letter was proved by the appellants. It has further observed that only a suggestion was given to the respondent that she had written such a letter, but she had flatly denied to have written such a letter. In my view, these observations are clearly contrary to the evidence on record. With the help of learned counsel for the appellants, I have carefully gone through the original deposition of the respondent - Yamunabai which is to be found at Exhibit-37 in the suit. The deposition is in Marathi and the relevant portion is quoted below verbatim.
^^1976 lkykr eh e/kqdjyk jft"Vj iks"Vkus 6
e/kqdjyk i= ikBfoys gksrs- eyk vkrk 3@5@76 ps i=k nk[kfoys- rs eh vksG[kw 'kdr ukgh gs Eg.k.ks [kjs ukgh- 3@5@76 ps i= ehp ikBfoys gksrs o R;koj ek>k vkaxBk vkgs-**
When translated, it reads thus:
"In the year 1976, I had written a letter to Madhukar (appellant no.2) by a registered post. I am now shown letter dated 3/5/76. It is not correct to say that I cannot identify the same. I had written the letter dated 3/5/76. It bears my thumb impression."
This deposition of the respondent has been misread by the lower appellate court to mean that the respondent had denied having written the letter dated 3rd May 1976. The respondent no.1 had clearly admitted that she had written the letter dated 3rd May 1976 and the thumb impression thereon was hers. The lower appellate court has clearly misread the evidence and has erroneously come to the conclusion that the letter dated 3rd May 1976 was not proved. If the letter is taken into consideration, the finding recorded by the lower courts that the respondent had proved that she was ready and willing 7
to perform her part of the contract is clearly erroneous and perverse. In the letter which was in the form of reply to the notice dated 17th April 1976 (Exhibit 23/1) issued by Bhima, the respondent has clearly stated that she had advanced money from time to time to Bhima for marriage expenses of Madhukar. The loan amount was not repaid by Madhukar who was his relative. As he was unable to pay the loan amount, he insisted upon the respondent no.1 executing an agreement to purchase the said land. Therefore, the agreement to purchase the suit land was executed at the instance of Bhima though the respondent no.1 never intended to purchase the land. Thereafter the letter specifically states that appellant no.2 should return the sum of Rs.20,000/- within 7 days and cancel the agreement of sale. At the end of the letter, the respondent repeated her demand that the sum of Rs.20,000/- should be returned and the agreement should be cancelled. Even if it is assumed that Rs.20,000/- which was given by the respondent to Bhima or Madhukar were not loan, but were given as an earnest money for agreement for sale, her letter demanding back Rs.20,000/- and praying for cancellation of agreement for sale unequivocally shows that she was not ready and willing to perform her part of the contract when she wrote the letter dated 3rd May 1976.
7. Section 16(c) of the Specific Relief Act clearly 8
provides that in a suit for specific performance, the plaintiff must plead and prove that he/she was willing to perform the essential terms of the contract. Readiness and willingness to perform the contract cannot be only the end of the term/period of the agreement but must be continuous. In the reply letter dated 3rd May 1976, the respondent no.1 not only repudiated the agreement but demanded back the sum of Rs.20,000/-. She has thus exhibited her unwillingness to perform her part of the contract and to purchase the land. In the circumstances, the finding recorded by the two courts below that the respondent no.1 had proved her readiness and willingness to perform the contract is not only erroneous but clearly perverse. The two courts below omitted to take into consideration the reply letter dated 3rd May 1976 which was admittedly issued by the respondent. This finding is recorded by omitting to take into consideration the admissible evidence on record and though it is a finding of fact, it is required to be set aside being perverse.
Re: Question nos.1 and 2.
8. The agreement for sale (Exhibit-39) states that Consolidation Scheme was made applicable to the village and therefore, permission of the Collector was necessary before the sale. 9
It further states that the permission was to be obtained by the vendor and vendor was to inform the purchaser of having obtained the permission. The sale deed was to be executed within one month of the permission being obtained. Sub-section(1) of section 31 of The Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947 (for short 'the Consolidation Act') states that notwithstanding anything contained anything in any law for the time being in force, no holding allotted under the Consolidation Act, nor any part thereof shall be transferred whether by way of sale (including sale in execution of a decree of a Civil Court or for recovery of arrears of land revenue or for sums recoverable as arrears of land revenue) or by way of gift, exchange, lease, or otherwise; without the previous sanction of the Collector. Sub-section (3) of section 31 creates an exception to sub- section (1) and states that nothing in sub-section (1) shall apply to any land which is transferred to ......... (iii) to an agriculturist or an agricultural labourer, in its entirety.
9. Section 31 of the Consolidation Act prohibits transfer of any holding allotted under the Consolidation Act without the permission of the Collector. The prohibition does not apply where the entire gat number is being transferred. In the present case, only part of the gat number was being transferred and therefore permission of the 10
Collector was necessary. The agreement also provided that such permission would be obtained by the vendor before the sale deed. In pursuance of the condition of the agreement of sale, appellant applied to the Collector for permission to transfer the suit land. By an order dated 30th November 1996 (Exhibit-47), the Collector refused the permission. In view of this refusal, the sale of the suit land was not permissible. Sale could not have been effected even in pursuance of a decree of a court as specifically provided under section 31 of the Consolidation Act. In view of the specific bar for sale without the permission of the Collector and the permission having been refused, the suit property could have been transferred by the appellants to the respondent. Agreement thus became unenforceable by virtue of section 31 of the Consolidation Act. The lower appellate court has however passed a decree with a condition that the appellant shall apply for permission to the Collector for execution of the sale deed and sale deed shall be executed after obtaining permission of the Collector. In view of the fact that the permission was already refused, there was no question of appellant again applying for the permission. The agreement did not contemplate applying for the fresh permission once the permission was refused. It is worthy to note that the order of the Collector refusing the permission was not challenged by either of the parties by filing of a writ petition or otherwise and the order has 11
become final. Once the permission was refused and the order became final, there was no question of granting a decree for specific performance as the sale prohibited by section 31 of the Consolidation Act. The agreement prescribes the time limit of one month from the order of the Collector. The order of the Collector as stated earlier was passed on 30th November 1976. The suit for specific performance therefore could have been filed within three years from that date. The suit was filed after expiry of period of three years from the date of the order of the Collector and was clearly barred by limitation. For these reasons, I answer question nos.1 and 2 in the negative.
10. For these reasons, the impugned judgment cannot be sustained. The appeal is accordingly allowed. Judgment and orders of the lower appellate court is set aside and the suit of respondent no.1 - original plaintiff is dismissed. In the facts and circumstances of the case, parties shall bear and pay their own costs. (D.G. KARNIK, J.)
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