Pratul Kumar Raj vs Sita Bala Kayal

Debangsu Basak, J.—A suit for specific performance was dismissed by the Trial Court. On appeal, the same was decreed, giving rise to the present second appeal.

Facts of the case, as admitted between the parties, are as follows. The plaintiff was the owner of the suit property. She by a registered deed sold the suit property to the defendant that the price of Rs. 1700/-. Such sale took place on 12th Baishak, 1390 BS. On the same date, the parties entered into a registered agreement by which the defendant agreed to re-convey the suit property to the plaintiff on the plaintiff paying a sum of Rs. 1700/- to the defendant by 30th Chaitra, 1390 BS.

Facts of the case were disputed thereafter. The defendant claimed that, the plaintiff for a consideration of Rs. 600/- sold her right to receive reconveyance, to the defendant, in respect of the suit property. The plaintiff, according to the defendant, never tendered the sum of Rs. 1700/- to him. The receipt of the sum of Rs. 5600/- was not admitted by the plaintiff.

The plaintiff claimed that, she repeatedly tendered the sum of Rs. 1700/- to the defendant within the time stipulated in the agreement. However, the defendant refused to accept the sum and re-convey the suit property in her favour. Lastly the plaintiff went with her husband to the defendant on 29th Chaitra, 1390 BS to tender the sum of Rs. 1700/- when the defendant refused to execute and register a deed in favour of the plaintiff. The plaintiff, thereafter, filed the instant suit on April 16, 1984. The plaintiff deposited the sum of Rs. 1700/- in Court as consideration money for the conveyance. The plaintiff did not sale her right to receive re-conveyance for the sum of Rs. 600/- to the defendant.

Seven issues were framed at the hearing of the suit. Three issues were not pressed. These three issues related to the maintainability of the suit, whether the suit was barred by limitation, and whether the plaintiff had any cause of action for the suit. The balance four issues were held against the plaintiff and the suit was dismissed on April 11, 1986.

The plaintiff preferred an appeal. On appeal the decree of dismissal was set aside. The suit was decreed on contest with costs.

By an Order dated December 23, 2013 three questions of law were framed for consideration in the second appeal. Such questions of law where as follows:--

"1. Whether the learned Court of appeal below substantially erred in law in not drawing adverse presumption under Section 114(g) of the Indian Evidence Act, 1872 inasmuch as the plaintiff/respondent was the best person to depose if she had received the sum of Rs. 600/- from the defendant/appellant or not and the purpose of asking for such amount.

Whether the learned Court of appeal was in substantial will error of law in holding that the plaintiff was always ready and willing to pay the price inasmuch as it was found that the plaintiff sought a loan of Rs. 600/-.

Whether the learned Court of appeal below erred substantially in law in interfering with the discretion of the Trial Court refusing decree of specific performance of contract inasmuch as the decision under the Specific Relief Act, 1963 being discretionary need not always follow the law."

Appearing on behalf of the appellant, Mr. Ashish Bagchi learned Advocate, contended that, the plaintiff borrowed money from the defendant. In a suit for specific performance the plaintiff must establish readiness and willingness to perform the contract apart from anything else. In the instant case the plaintiff lacked both readiness and willingness to perform the contract inasmuch as the contract required the plaintiff to tender the sum of Rs. 1700/- to the defendant. The plaintiff borrowed money from the defendant. The plaintiff never tendered the sum of Rs. 1700/- to the defendant. The plaintiff was not in a financial position to do so, suggested the advocate for the defendant. Therefore, there was no readiness and willingness on the part of the plaintiff to perform the contract. In support of the contention that, the plaintiff must be ready and willing to perform the contract in a suit for specific performance reliance were placed on All India Reporter B. Ahmed Maracair Vs. Muthuvalliappa Chettiar, , All India Reporter Raval and Co. Vs. K.G. Ramachandran and Others, and All India Reporter 1962 Supreme Court page 77 (International Contractors Ltd. v. Prasanta Kumar Sur (deceased) & Ors.).

It was contended that, the Appeal Court ought not to have reversed the decree of the Trial Court since the Trial Court appreciated the facts correctly. It was submitted that, the Appeal Court ought not to have reversed findings of fact. Reliance was placed on Manjunath Anandappa Urf. Shivappa Hanasi Vs. Tammanasa and Others, in that regard.

It was submitted that, the evidence of the husband of the plaintiff was not appreciated correctly by the Appeal Court. Husband of the plaintiff was competent to give evidence. Reliance was placed on Bijan Behari Bhattacharjee Vs. Krishna Prakash Mitra, . There was no need for extending the benefits given to a pardanashin lady to a lady who was illiterate. The Appeal Court had erred in doing so.

On the issue of part performance of the contract under Section 53A of the Transfer of Property Act, reliance was placed on All India Reporter 1954 Andhra Pradesh page 17 (Dubaguntu Subramanyam v. Kannukollu Bhavanarayana Rao & Ors.).

It was contended on behalf of the appellant that, in the facts of the instant case Section 17 of the Registration Act was not attracted. Reliance was placed on section 54 of the Transfer of Property Act. It was submitted that the deed of purchase of the right of re-conveyance did not come within the definition of sale under Section 54 of the Transfer of Property Act requiring the deed to be registered under Section 17 of the Registration Act.

I have considered the respective submissions of the parties and the materials on record. Two registered deeds between the parties were admitted. Both the deeds are dated March 26, 1983. The first deed was the conveyance executed by the plaintiff in favour of the defendant in respect of the suit property. By such deed of conveyance the plaintiff conveyed the suit property in favour of the defendant for the sum of Rs. 1700/-. The parties are related to each other. The defendant is the son of the brother of the plaintiff. They reside in the same homestead. Simultaneously with the execution of the deed of conveyance the parties executed and registered the agreement for re-conveyance. Under the registered deed of re-conveyance the defendant was obliged to re-convey the suit property in favour of the plaintiff upon the plaintiff tendering to the defendant the sum of Rs. 1700/- within 30th Chaitra 1392 BS.

The plaintiff claimed to have offered such sum to the defendant on numerous occasions prior to the filing of the suit. The defendant failed and neglected to execute and register the deed of conveyance requiring the plaintiff to file the instant suit. The instant suit was filed on April 16, 1984. Simultaneously with the filing of the suit, the plaintiff deposited the sum of Rs. 1700/- in Court by way of a Chalan. The Chalan was marked as an exhibit in the proceedings being Exhibit ''2''.

On behalf of the defendant it was contended that, the plaintiff was never ready and willing to perform the contract. In support thereof the defendant claimed that, the plaintiff took loan from the defendant. The defendant contended that, the plaintiff never tendered the sum of Rs. 1700/- to him.

On appraisal of the rival contentions and the evidence on record the Appeal Court came to the finding that, the plaintiff was ready and willing to perform her part of the obligations under the agreement for re-conveyance dated March 26, 1983. The very fact that, the plaintiff deposited the sum of Rs. 1700/- in Court was required to be considered. The plaintiff, therefore, was both the ready and willing to perform her obligations under the agreement for re-conveyance dated March 26, 1983.

The plaintiff, therefore, crossed the first hurdle of establishing readiness and willingness to perform the obligations under the agreement dated March 26, 1983. On facts, the plaintiff being ready and willing to perform her obligations under the contract, the ratio of the judgment cited on behalf of the appellant on the point of readiness and willingness to perform the obligations under a contract, did not help the appellant in that regard.

In All India Reporter B. Ahmed Maracair Vs. Muthuvalliappa Chettiar, it was held that, though no writing was ordinarily necessary for surrendering the tenancy, if the original lease was registered, the surrender of a portion of the tenancy with an abatement of rent would only be effected by a registered instrument as in such a case the surrender involved a variation of the original contract of tenancy. Oral evidence as regard such surrender was inadmissible under Section 92 of the Evidence Act.

In All India Reporter Raval and Co. Vs. K.G. Ramachandran and Others, it was held that, any variation of rent reserved by a registered lease deed must be made by a registered instrument.

Both of these authorities were against the appellant. In the instant case, there were two registered deeds. The first one was the conveyance by which the plaintiff conveyed her property in favour of the defendant. The next registered deed on the same date was the agreement by which the defendant agreed to re-convey the property to the plaintiff upon the plaintiff being a sum of Rs. 1700/- to the defendant within the time specified. It was the case of the plaintiff that she tendered such sum within time and that the defendant refused to execute and register the necessary deed of conveyance in terms of the registered agreement dated March 26, 1983. In fact, the defendant claimed that he had purchased the right of re-conveyance from the plaintiff for the sum of Rs. 600/-. So much was discussed on the so called purchase of the right of re-conveyance by the defendant by both the Courts below. The Trial Court accepted the version of the defendant that he had purchased the right of re-conveyance from the plaintiff for the sum of Rs. 600/-. The Appeal Court found on the appreciation of the evidence that the defendant did not pay any money to the plaintiff. The Appeal Court found discrepancies in the version of the defendant claiming to pay the sum of Rs. 600/- to the plaintiff. The defendant did not produce any documentary evidence to establish that he paid the sum of Rs. 600/- of the plaintiff. That was an admitted position. In absence of any documentary evidence, the oral evidence on this point was required to be appreciated. The Appeal Court found that in cross-examination the defendant as the defendant witness No. 1 claimed to have paid the sum of Rs. 600/- to the plaintiff in the house of the defendant at one stage, while at another stage the defendant in cross-examination claimed that the plaintiff went to receive the sum of Rs. 600/- from the defendant''s tailoring shop. Two versions of payment did not instil any confidence in the claim of payment of the sum of Rs. 600/- by the defendant to the plaintiff. The payment of the sum of Rs. 600/- by the defendant to the plaintiff was, therefore, to be disbelieved. The consideration for the so-called purchase of the right of re-conveyance by the defendant, therefore, failed. On the failure of such consideration the only logical conclusion possible was that, there was no purchase of the right of reconveyance by the defendant. In absence of the right to re-convey being purchased by the defendant, the defendant was obliged to act in terms of the registered agreement dated March 26, 1983.

The defence of the defendant so far as his failure to act in terms of the registered agreement dated March 26, 1983 was concerned was two folds. The defendant first contended that, he had purchased the right of re-conveyance. Such contention was without any merit. The second contention of the defendant in that regard was that, the plaintiff did not tender the sum of Rs. 1700/- to him and that, the plaintiff was not ready and willing to perform her obligations under the registered agreement dated March 26, 1983. The defendant claimed to have purchased the right of the plaintiff under the registered agreement dated March 26, 1983. In such an event the plaintiff was not required to tender the sum agreed within the time specified in terms of the agreement dated March 26, 1983 to the defendant. However, the plaintiff did so. In order to re-emphasize the readiness and willingness, the plaintiff simultaneously with the filing of the suit deposited the sum of Rs. 1700/- in Court as would appear from Exhibit ''2''. The plaintiff, therefore, more than sufficiently, established her readiness and willingness to perform her part of the obligations under the agreement dated March 26, 1983.

The plaintiff did not come as a witness. On her behalf her husband deposed. As was held in Bijan Behari Bhattacherjee (Supra), the law did not require that the plaintiff herself must appear in court in support of her case. Anyone who was competent to depose to the facts of the case was a competent witness in an action though in some cases it may be desirable or necessary for the plaintiff to depose. In the instant case, the plaintiff adequately proved her claim through her husband who gave evidence on her behalf.

In All India Reporter Dubaguntu Subramanyam Vs. Kannukollu Bhavanarayana Rao and Others it was held that, it was for the person who plead want of consideration to prove it, notwithstanding the fact that they were not parties to the original document and that the persons claiming it did not claim under the executant. In the facts of the instant case, it was for the defendant, to establish that he purchased the right of re-conveyance by paying the sum of Rs. 600 to the plaintiff. The defendant, as was correctly held by the Appeal Court, failed to prove such fact.

The appellant did not want this Court in second appeal to re-appreciate the evidence and come to a different finding than that of the Trial Court. The suit was for specific performance of contract. It was contended that, the Trial Court rightly exercised discretion in refusing to grant relief. The Appeal Court was wrong in reversing such discretion. On second appeal this Court ought to come to the same findings as that of the Trial Court. This Court on second appeal should not interfere with the discretion exercised by the Trial Court in refusing to grant the relief prayed for by the plaintiff.

In Manjunath Anandappa (Supra) the Supreme Court laid down that the High Court in second appeal should not interfere with the findings of the Courts below without arriving at the decision that discretion was exercised by courts below on a wrong principle. In the facts of that case before the Hon''ble Supreme Court there was concurrent refusal by the two Courts to exercise discretion. In such context the Hon''ble Supreme Court made such observation. In the facts of the instant case, the Trial Court refused to grant the discretionary relief of specific performance. The refusal of the Trial Court to grant such relief was based on erroneous appreciation of evidence on record as well as on wrong principles of law. The Appeal Court rightly decreed the suit.

Section 17 of the Registration Act required any deed relating to the immovable property of a value in excess of Rs. 100/- to be registered. The so-called purchase of the right to re-convey by the defendant was for a sum of Rs. 600/-. No document was produced in support of such claim. Therefore, the purchase of the right to re-convey by the defendant which such right according to the defendant was more than Rs. 100/-, was not by a registered deed as required under Section 17 of the Registration Act. It was contended on behalf of the appellant that, purchase of the right to re-convey was not a sale within the meaning of Section 54 of the Transfer of Property Act.

The defendant admitted the existence of the registered agreement dated March 26, 1983. He claimed that, he purchased the right of the plaintiff under the registered agreement dated March 26, 1983 for the sum of Rs. 600/-. Therefore, he was perfecting his title with regard to an immovable property by purchasing the right of re-conveyance. Without the right to re-conveyance being purchased, the plaintiff was entitled to re-conveyance from the defendant upon the plaintiff paying the sum of Rs. 1700/- to the defendant. Title of the defendant to the immovable property was sought to be perfected by the purchase of the right of reconveyance. Therefore, such transaction affected a right to an immovable property valued in excess of Rs. 100/- and would require a deed and its registration under Section 17 of the Registration Act. In the instant case the value of the right of re-conveyance was Rs. 600/-. There was no deed admittedly in that regard.

In the instant case the plaintiff was seeking relief of specific performance on the basis of a registered deed dated March 26, 1983. The defendant resisted by claiming that, the right of the plaintiff under the agreement dated March 26, 1983 was purchased by the defendant for the sum of Rs. 600/- albeit without a document. The plaintiff proved the registered deed dated March 26, 1983. In fact, the deed was admitted. The plaintiff, therefore, discharged her burden of proof. On such discharge the plaintiff was entitled to the relief as prayed for in the plaint. To deny the plaintiff the relief as prayed for in the plaint, it was for the defendant, and the onus lay on him, which unfortunately he failed to discharge, to prove that the plaintiff sold her right to receive reconveyance under the registered agreement dated March 26, 1983. It was for the defendant to establish that he paid the sum of Rs. 600/- to the plaintiff. Question of adverse presumption under Section 114(g) of the Indian Evidence Act, 1872 did not arise.

The Trial Court did not grant relief to the plaintiff on the ground that the plaintiff sold her right to receive re-conveyance under the agreement dated March 26, 1983. The sale of such right was not properly established at trial. This fact was overlooked by the Trial Court. On appeal, the Appeal Court on re-appreciation of the evidence found the error committed by the Trial Court and proceeded to decree the suit.

The plaintiff was entitled to a decree as prayed for. There was no merit in the second appeal. The second appeal is, therefore, dismissed without any order as to costs.