Ganesh Prasad vs Saraswati Devi and others

This is a defendants second appeal in a suit for specific performance of a contract of reconveyance of two houses at Varanasi. The trial court dismissed the suit but the lower appellate court has decreed it on payment of Rs, 3000/ as the amount of price agreed to be paid, Rs, 1800/ as

interest thereon for five years and Rs. 30/ on account of unpaid house and water taxes total Rs. 4830/.

The main question which arises in this appeal is whether the plaintiffs could be said to be ready and willing to perform their part of the contract within the meaning of S.16(c) of the Specific Relief Act, 1963.

Kali Das, husband of the first plaintiffrespondent and father of plaintiffrespondents Nos.2 to 5 sold that property in dispute to one Pera Lal on 15th May, 1957 reserving to himself the right to repurchase the same. Kali Das was however, unable to arrange for the necessary funds to repurchase the property from Pera Lal within the time limited by the agreement with Pera Lal, rather, he seems to have been in need of more money. The property being obviously worth much more, pera Lal and Kali Das sold it to the defendantappellant Ganesh Prasad for Rs. 3000/ by a saledeed dated 23rd October, 1962 and Ganesh Prasad, the defendantappellant, agreed to recovery the property to Kali Das on payment Rs. 3000 with interest at the rate of 1% per mensem as also expenses on repairs and Municipal taxes and other expenses with interest thereon as well, at the rate of 1% per mensem within 5 years by a separate agreement also dated 23rd Oct. 1962. Both the saledeed and the agreement for reconveyance were presented for registration on 24th October, 1962 and duly registered in accordance with law. The certified copy of the agreement of reconveyance is Ext.I while the original sale deed in favour of the defendantappellant is Ext. A2. Kali Das also executed a rent note in favour of the defendantappellant agreeing to pay him Rs. 30/ per month as rent of the property for being allowed to continue to remain in possession thereof as a tenant.

Kali Das appears to have died sometime in the year 1966 or so, and after his death when the period of 5 years limited by the agreement was to expire, the first plaintiffrespondent, widow of Kali Das, served a notice dated 30th May, 1967 Ext.9 on the defendant appellant requiring him to reconvey the property to her within 30 days of the receipt of the notice on payment of the entire sale consideration. The defendantappellant sent a reply dated 30th June, 1967, Ext.A9. wherein he denied the right of the first plaintiffrespondent to purchase the property or that there was any agreement of reconveyance with her. In deed, the very existence of the agreement of reconveyance was denied and it was urged that Kali Das was merely a tenant on payment of Rs. 30/ per month which he had not paid. To this, a notice by way of rejoinder dated 26th July, 1967 was served by the first plaintiffrespondent. Reference was made to the fact that the agreement for reconveyance was registered and even the volume and book number etc., were given and also the date on which the agreement was registered by the SubRegistrar. It was asserted that first plaintiff respondent, was the widow and heir of Kali Das. The defendantappellants claim that Kali Das was a tenant and after him the plaintiffrespondent was a tenant (sic) about the tenancy had been got executed from Kali Das, the defendant was not bound by it inasmuch as Kali Das never paid any rent to the defendant nor did the plaintiff ever do so. A demand was made that the property should be conveyed within 15 days. The defendant does not appear to have made any reply to the rejoinder notice, Ext.8, and did not reconvey the property. The plaint was thereupon presented in forma pauperis on 9th September, 1967 and although the first plaintiff made a statement while presenting the plaint that day that she did not have the means to pay the courtfees, the full courtfee was paid on 19th September, 1967. It may be here noticed that all this happened before the expiry of the 5 year period fixed for reconveyance.

It is unnecessary in this case to detail the pleadings of the parties except for the fact that the plaintiffs pleaded specifically that they were always ready and willing to purchase the property in accordance with the terms of the contract dated 23rd October, 1962, and that it was the defendant who refused to do so in spite of notices dated 30th May, 1967 and 26th July, 1967. The defendant denied that allegation and asserted that the plaintiffs did not have ready money for taking the sale and could not be thus said to be ready and willing to purchase the property. The trial court raised issue No.2 "whether the plaintiffs were ready and willing

to purchase the house in suit within the stipulated period ? The third issue raised by the trial court was "To what amount, if any, in case the performance is allowed, is the defendant entitled? These are the only two issues which now survive between the parties.

On the second issue the trial court held that "there was no evidence at all that the plaintiffs were ever ready to pay to the defendant the amount due to him and obtain the transfer of the house in suit" and that "the plaintiffs were never ready to repurchase the houses in suit." On the third issue, the finding of the trial court was that if the plaintiffs want to seek the enforcement of the agreement the amount which they must pay to the defendant was Rs. 3000/ on account of the agreed price Rs. 1800/ on account of interest, Rs. 1800/ on account of rent and Rs. 12250 p. on account of taxes, total Rs. 672250 p. In view of its finding on issue No.2 the trial court dismissed the suit with costs.

On appeal by the plaintiffs against the trial courts decree, the learned Additional District Judge, after an elaborate discussion, held that there was sufficient evidence on the record to prove that the Plaintiffs were ready and willing to get the properties reconveyed and that having made such an averment in the plaint they had proved it also, and ultimately that the plaintiffs were ready and willing to get the properties reconveyed in accordance with the terms of the agreement executed by the defendant in favour of Kali Das on 23rd October, 1962. On the third issue, the learned Additional District Judge held that the defendant was not entitled to interest after the expiry of 5 years as it was he who prolonged the matter by refusing to reconvey the property in spite of the first plaintiffs request, and thus was entitled to Rs. 1800/ only as interest, that the amount of house and water taxes due was only Rs. 30/ and further that the payment of the amount of rent, if any, could not be made a condition for reconveyance of the property to the plaintiffs.

. The finding of the lower appellate court on the second issue was criticised as illegal by the learned counsel for the appellant. The plaintiff, he urged did not have any money even to pay the courtfees when they presented the plaint on 9th September, 1967. The demands made by the first plaintiff by her notices Exts.8 and 9 for reconveyance of the property were mere Peshbandi. She could not be said to have the capacity to pay the money payable by the plaintiffs under the agreement and that being so, the plaintiffs could not be said to have been ever ready to perform their part of the agreement. Two of my decisions (1) Har Pratap Singh v. Surya Narain Misra (AIR 1980 All 52), and (2) unreported judgment dated 26th September, 1979 in Second Appeal No.2385 of 1974 (Ram Roop Pandey v. Surya Narain Upadhyaye) have been cited in support of the proposition that a plaintiff who files the suit for specific performance of a contract of sale in his favour, in forma pauperis, and thus is proved on his own admission not to possess sufficient funds even for payment of courtfees payable on the institution of the suit, cannot be said to ready to perform the essential term of the contract to be performed by him. namely, the payment of the purchase price. It is true that in both the said cases the fact that the plaintiff filed the suit in forma pauperis was taken as a circumstance showing that he could not be said to be ready to perform his part of the contract. But that was one of the several circumstances and not the only basis. The facts and circumstances of those cases are essentially different from the facts and circumstances of the present case and since every case is determinable on its own fact, I need not discuss the facts of those cases. Suffice it to say that in Har Pratap Singhs case the allegations in the plaint were that the plaintiffs were somehow managing to live by beggary and nothing was due and payable by them for the reconveyance. In Ram Roop Pandeyg case the plaintiff was the creditor who had, instead of taking a sale of the house and agreeing to reconvey the property to the debtor, taken an agreement to sell the property in his favour for four times the amount of Rs. 3000/ which was advanced at the time of the execution of the agreement, and had expressly said in the agreement that he did not have the balance amount of sale consideration, and the parties had by agreement fixed an year for completing the sale. The agreement

was found in that case to be an agreement to secure a loan made by the plaintiff to the defendant but was made in that form to evade the provisions of S.164 of the U.P. Zamindari Abolition and Reforms Act. Indeed, the present case is governed not by any of these two cases cited by the learned counsel for the appellant, but by a third case, decided by me on 26th September, 1978, namely, Ram Prasad v. Smt. Urmila Devi (Second Appeal No.2642 of 1971).In that case also the plaint was originally presented on deficient courtfees but the deficiency in courtfees was made good after some time by the plaintiffs by raising funds by selling some other land belonging to them. As held by me in that case, in the present case also the plaintiffs could be said to have in fact filed a suit by presenting a duly stamped plaint capable of being acted upon for the first time on the date when full courtfees was paid, inasmuch as it is only by a fiction of law under Section 149 C.P.C. that the plaintiffs plaint, may be deemed to have the same force and effect as if it was presented on the date on which it was first presented, for such purposes as limitation etc. There is no question of limitation involved in the present case and since time is not generally of the essence in contracts relating to the sale of immoveable property, the fact that the courtfees is not paid when the plaint is first presented but is paid later is not of much significance. The learned Additional District Judge has relied on the decision of the Supreme Court in International Contractors Ltd. v. Prasanta Kumar Sur (AIR 1962 SC 77) and that of the Privy Council in Bank of India Ltd. v. Jamsetji A.H. Chinoy and Messrs Chinoy and Co. (AIR 1950 PC 90) and has emphasised the fact that the defendant wrongfully repudiated the contract in reply to the first plaintiffs first notice Ext.9. He further observed that the decision in Saral Kumar v. Madhusudan (AIR 1964 Cal 556) and another case of Ouseph Verghese v. Joseph Aley ((1969) 2 SCC 539), were distinguishable. I do not agree with the learned Additional District Judge when he says that on proof of repudiation of the contract by the defendant, it is no longer necessary for the plaintiffs to prove their readiness and willingness to perform their part of the contract or that the plaintiffs could in such circumstances be said to have been prevented from performing their part of the contract, yet on the facts of the present case the conclusion arrived at by the learned Additional District Judge that the plaintiffs had proved that they were ready and willing to perform their part of the contract in the present case is correct.

The case of International Contractors before the Supreme Court was a case under the Specific Relief Act, 1977 (sic) and not a case under the Specific Relief Act. The case was decided on the principle enunciated by S.38 of the Contract Act and it was held therein that "in a case of a sale with an agreement for repurchase on or before certain specified date, if the seller of the property offers to repurchase it before the due date but the purchaser denies the agreement to recovery, it amounts to a repudiation of the contract and in a case of this kind no question of formal tender of the amount to be paid arises, and the question to be decided is not whether the seller had any money within his power but whether the purchaser had so refused to perform his part of the contract and had intimated that the money will be refused even if tendered." So far as S.16(c) of the Specific Relief Act, 1963 is concerned, clause (i) of the Explanation thereto says that "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." The said clause shows that in order to express their readiness and willingness to perform their part of the contract for reconveyance of the property, it was not necessary for the plaintiffs to have actually tendered the amount of the consideration to the defendant at the time of making the demand for reconveyance or to deposit it in court at the time of filing the suit. The question is whether the plaintiffs not having done so, is the other evidence on the record sufficient for holding that they had always been ready and willing to perform their part of the contract.

The judgment of the Privy Council in Bank of India Ltd. v. Jamesetji A.H. Chinoy and Messrs Chinoy and Co. (AIR 1950 PC 90) is more helpful. It was said therein (at p.96) :

"It is true that plaintiff 1 stated that he was buying for himself, that he had

not sufficient ready money to meet the price and that no definite arrangements had been made for finding it at the time of repudiation. But in order to prove himself ready and willing a purchaser has not necessarily to produce the money or to vouch a concluded scheme for financing the transaction."

and the Privy Council endorsed the following observations of Chagla A.C.J. in the judgment under appeal before them (at PP. 96, 97) :

"In my opinion, on the evidence already on record it was sufficient for the Court to come to the conclusion that plaintiff I was ready and willing to perform his part of the contract. It was not necessary for him to work out actual figures and satisfy the Court what specific amount a bank would have advanced on the mortgage of his property and the pledge of these shares. I do not think that any jury if the matter was left to the jury in England would have come to the conclusion that a man, in the position in which the plaintiff was, not ready and willing to pay the purchase price of the share which he had bought from defendants 1 and 2."

According to the Websters III New International Dictionary being ready means "prepared for something about to be done or experienced.........equipped or supplied with what is needed for some action or event......prepared in mind or disposition so as to be willing and not reluctant : not hesitant : inclined, disposed." Willing means according to the same dictionary : inclined or favourably disposed in mind." "The words ready and willing are to my mind simple words and all that they mean is that a plaintiff, in order to succeed in a suit for specific performance must aver and prove that he has performed or has throughout been prepared to do his part under the contract, that preparedness may not, however be mere verbal show of readiness to do his part. It should be backed by the means to perform his part of the contract when called upon to do so. The plaintiff does not have in such a case to go about jingling money to demonstrate his capacity to pay the purchase price, all that the plaintiff has to do in such a situation is to be really wining to purchase the property when the time for doing so comes and to have the means to arrange for payment of the consideration payable by him. One cannot also forget that most of these cases of contracts for reconveyance of property, or a device to secure a loan by needy persons in the present day situation when people are reluctant to advance money on mortgage on account of the dilatoriness, expense and trouble of litigation. Contracts of reconveyance are heritable and assignable. It is, open to the original owner of the property who has such a contract in his favour to sell it for consideration and the transferee can in such a case enforce the contract. There could, therefore, be no objection if the original owner raises the money for payment when the time for doing so comes, by assigning the whole or a part of the benefit under the contract to a third person, Cl.(1) of the Expln. to S.16(c) clearly enacts that money need be produced only when directed by the court.

The fact that the notices were served by the first plaintiff followed, by the suit is sufficient proof of the plaintiffs willingness to purchase the property. No doubt the Plaint was presented originally in forma pauperis, but the courtfees were paid well before the expiry of the five year period limited for the reconveyance. By not paying the courtfees initially the plaintiffs were probable trying to bring pressure on the defendant to execute the reconveyance, by informing him that if he did not do so they would pursue the matter in court. It was probably when they found that the defendant was recalcitrant in his attitude that they paid the courtfee and went ahead with the suit. The first plaintiffs statement made on 9th September, 1967 that she did not have the means to pay the courtfees could under the circumstances be ignored as she did pay the courtfees soon thereafter and well before the expiry of the five year period fixed for reconveyance. It is unfortunate that the first plaintiff should have made such a statement as she did in support of the application to sue in forma pauperis. But these are facts of life and anyone having the slightest acquaintance with our law courts would take no further notice of that statement.

In view of all the facts and circumstances of the case and the fact that the plaintiffs did deposit the money when they were called upon to deposit it under the decree of the lower appellate

court, I hold in agreement with the learned Additional District Judge that the Plaintiffs have proved that they were always ready and willing to do their part under the contract of reconveyance. On the third issue, the learned Additional District Judge was in my opinion harsh on the defendant when he held that the defendant shall not be entitled to any more interest after the expiry of five years as it is he who prolonged the matter when requested by the first plaintiff Smt. Saraswati Devi. Civil cases are decided on the basis of the rights of the parties. Under the contract of reconveyance the plaintiffs were entitled to interest at 1% per mensem on the amount of Rs. 3000/. Obviously interest was payable upto the date of payment of the amount of consideration to the plaintiffs. Since the amount of Rs. 3000/ was not tendered to the defendant by the first plaintiff along with her notice Ext.9 or even the rejoinder notice Ext.8, it cannot be said that her readiness and willingness to purchase the property on payment of the purchase price that was expressed by the said notices amounted to payment of the purchase price. The purchase price could be said to have been paid only when the amount was paid into court under the decree of the lower appellate court. According to the order of the lower appellate court dated 17th July, 1971 the amount was actually deposited on 18th January, 1971. The deposit was held to have been made within time and a revision against that order being Civil Revision No.770 of 1971, appears to have been dismissed by this Court on 21st December, 1972. In my view further interest amounting to Rs. 1,165/ at the rate of 1% per mensem simple is payable on the sum of Rs. 3000/ from 23rd October, 1967 to 18th January, 1971 in addition to the amount of; Rs. 4,830/ by the plaintiffs to the defendant for specific performance of the contract dated 23rd October, 1962 for the reconveyance of the two houses in suit by the defendant in their favour. This Point was not specifically taken in the appeal but I think it is necessary to modify the decree to this extent in order to do complete justice between the parties. I would, therefore, dismiss the appeal subject only to the modification of the decree appealed from by directing that the plaintiffs shall further pay by depositing in the executing court within three months from today the further sum of Rs. 1,165/ towards interest from 23rd Oct. 1967 to 18th Jan, 1971 on the principal amount of consideration. I may further clarify that the deed of reconveyance shall not be executed until the said amount of Rs. 1,165/ is deposited by the plaintiffs in the court. The defendantappellant shall, however, bear his own costs of appeal in this Court and pay full costs of the plaintiffs in this Court which shall be set off at the time of refunding the amount deposited in the executing court to the defendantappellant.

Order accordingly.