S. Maruthai and another vs Gokuldoss Dharam Doss and four others

The earlier appeal is against the judgment and decree in O.S.No. 68 of 1987 on the file of the Subordinate Court, Tiruvellore. The later appeal

is against the judgment and decree in O.S.No. 189 of 1991 on the file of the Subordinate Court, Tiruvellore. O.S.No. 189 of 1991 was originally

pending as O.S.No. 3002 of 1987 on the file of the City Civil Court, Madras and on being transferred it came to be taken on the file by the

Subordinate Court, Tiruvellore and renumbered as referred to above. In this judgment the substantive parties to the appeals would hereinafter be

referred to as ''vendors'' and ''buyer''. The buyer is the plaintiff in O.S.No. 189 of 1991. It is a suit for specific performance. The vendors,

numbering five, are the defendants in that suit. That suit was dismissed on merits. The vendors are the plaintiffs in O.S.No. 68 of 1987. The buyer

is the first defendant in that suit and his tenant is the second defendant in that suit. That was a suit laid by the vendors for declaration that the first

defendant committed breach of contract of sale and therefore he had lost his right to buy the suit property; for possession and for mesne profits,

past and future. That suit was decreed on merits. Hence the two appeals referred to above; Heard Mr.R. Alagar, learned Senior Counsel for the

buyer in both the appeals and Mr.S.V. Jayaraman, learned Senior Counsel for the vendors in both the appeals;

The suit for specific performance was originally presented before the City, Civil, Court, Madras on 6.4.1987 and numbered as O.S.No. 3002

of 1987. Later on it was taken on the file as O.S.No. 189 of 1991 by the Subordinate Court, Tiruvellore on 21.10.1991. The suit for declaration

and for recovery of possession was presented before the Subordinate Court, Tiruvellore on 17.7.1987 and was taken on file as O.S.No. 68 of

1987. The suit for specific performance being earlier in point of time to the suit for declaration of title I am inclined to summarize the pleadings in

the suit for specific performance first before summarizing the pleadings in the connected suit. The pleading in the suit for specific performance are

as follows:

The case of the plaintiff is summarized as hereunder:

(i) The second defendant is the father of defendants 1, 3, to 5. They constitute an undivided family. The second defendant is the main spokesman

for the family. Defendants 1 and 2 approached the plaintiff through one Ra-jamanickam for the sale of the suit properties. There were a number of

hut dwellers and trespassers in the suit property. Defendant thus found themselves in a difficult position. In that context they approached the

plaintiff and negotiated for the sale of the properties. An agreement of sale was entered into by the first defendant for himself and on behalf of the

other defendants with the plaintiff on 18.7.1975. The plaintiff paid a sum of Rs. 10,000 as advance. Since the sale deed for the property stood in

the name of the second defendant, the first defendant represented that the property is that of a Hindu undivided family. Therefore clauses were put

that the plaintiff''s advocate has to be satisfied about the title and the first defendant should arrange to get sale deeds executed by the different

owners of the property comprising the entire lot.

(ii) Though the first defendant had to remove the huts and tresspassers, yet he was not able to do so. Therefore the plaintiff spent considerable

money and had the huts as well as the tresspassers removed. The plaintiff put up a compound wall and employed a watchman in the premises. The

plaintiff also constructed sheds and quarters for watchman at his cost. The agreement contemplates removal of huts by the first defendant and the

plaintiff was required to put up a compound wall around the suit properties as soon as the huts were removed. The first defendant had not

removed the huts within three months and hence the parties to the suit considered that time was not the essence of the contract. The process of

removing the huts etc. was a long drawn process. A draft sale deed was also prepared and sent to the defendants. After sending the draft sale

deeds the plaintiff received a notice dated 27.3.1976 from an advocate at Chingleput addressed to the plaintiff as well as the second defendant In

that notice a third party claimed title to 53 cents of land in the suit property as his property. Therefore the plaintiff caused a legal notice dated

22.4.1976 to be issued to the second defendant pointing out that he had parted with large money; he was put in possession; he had prepared the

sale deed and that he has been ready and willing to complete the transaction and since the cloud in title has been raised he sought information as to

what steps the second defendant had taken to counter the claim of the third party.

(iii) Three weeks later two notices from the same advocate were sent to the plaintiff, one on behalf of the first defendant and the other on behalf of

the second defendant. The first defendant in his notice accepted the agreement and called upon the plaintiff either to complete the transaction or to

take refund of the sum of Rs. 10,000. The second defendant in his reply categorically repudiated the agreement of sale. In that notice the second

defendant had denied having received any notice from any lawyer issued on behalf of the third/claimant. The plaintiff sent a rejoinder pointing out

that the title deeds had been scrutinised and they were found to be in order and that the plaintiff had been put in possession and he had spent

considerable money. As such the plaintiff was always ready and willing to purchase and he wanted only a clarification regarding the notice issued

on behalf of the third party. In his rejoinder the plaintiff also adverted to the fact that defendants 1 and 2 met the plaintiff''s lawyer and discussed

with him as to how the sale deed was to be prepared as according to the defendants the property was the joint family property having been

assessed to income tax as such. The rejoinder also contained the statement that the plaintiff''s lawyer was also informed about the oral partition

among the members of the joint family of the vendors. Therefore the plaintiff was insisting on a draft partition deed and draft power of attorney duly

executed by absentee members of the defendant family to be produced for approval. All these took place before the receipt of the notice from the

lawyer for the third party. The plaintiff was apprehensive that the defendants are trying to back out of the transactions after finding that the hut

dewellers and trespassers had been removed and the property was free from encroachers. The plaintiff followed up his action by repeatedly

writing to the defendants to take necessary action. The defendants attempted to sell the property to third parties and were trying to obtain

possession from the plaintiff forcibly. This made the plaintiff to give advertisements regarding his agreement of sale in certain dailies to protect his

interest. The plaintiff has been paying property tax for the suit properties in his name for a long time.

(iv) The defendants came forward with a different version through another advocate making inconsistent statements. Though the defendants

admitted that they had met the plaintiff''s advocate and that the plaintiff had put up a compound wall on his own and employed a watchman in the

premises, yet they claim that the possession of the plaintiff was only in his imagination and that the plaintiff should pay the defendant damages at the

rate of Rs. 710 per month from the date of agreement till the plaintiffs imagination lasted, besides forfeiting the advance and expen diture incurred

for putting up the compound wall etc. Defendants 1 and 2 then filed a suit against the plaintiff in the City Civil Court at Madras. It was taken on file

as O.S.No. 5691 of 1979. In the suit they admitted the agreement and that though the second defendant disowned any connection or

responsibilities, yet the first defendant had the other defendant''s joining hands and consent to unanimous action. (Underlin- ing by this Court). In

that plaint it was also stated that the second defendant had voluntarily converted the property adjoint family property comprising the defendants

and the property has been assessed as joint family property. The said suit was dismissed and an appeal was preferred by defendants 1 and 2

which was taken on file as A.S.No. 366 of 1982. The appeal was allowed and the suit was remanded. Against that order of rernand C.M.A.No.

820 of 1983 was filed before the High Court. As the third party had not taken any steps except sending a notice, the plaintiff is now advised that

he can ignore the cloud in title and get the sale deed executed. This is on the strength of the facts disclosed in Court proceedings aforesaid. The

plaintiff is therefore filing the suit for spe cific performance. (Underlining by this Court). The plaintiff has been and continue to be ready and willing

to complete the transaction and he is ready to purchase the property in his name. The suit is not barred by limitation as the plaintiff is in possession

pursuant to the agreement of sale and pan payment and put up construction and stationed watchman providing him quarters and in view of the suit

in O.S.No. 5691 of 1979 on the file of the City Civil Court, Madras and further proceedings therefrom. (Underlining by this Court).

Therefore the suit for specific performance.

The first defendant filed a written statement contending inter alia as follows:

(i) The plaintiff seeks to enforce a contract dated 18.10.1985 which was cancelled on 27.3.1976 itself. Therefore the present suit is barred by

limitation. The suit is filed on the basis of permissive possession of the plaintiff which itself is disputed by the defendant. The plaintiff was never let

into possession of the property under the agreement dated 18.7.1975. Therefore the suit is misconceived and liable to be dismissed. It is true that

the agreement was entered into between the first defendant and the plaintiff on 18.7.1975. But the purpose of the agreement was depending on

various other events. That should happen and performed before it is put into enforcement. First of all the suit agreement relates to a property

belonging to the Hindu undivided family of the second defendant. Unless and until all the defendants agree for the sale, the property cannot be sold.

Secondly the possession of the property from the illegal occupants had to be restored. Thirdly the agreement had to be performed in three months.

Fourthly the title of the defendants to the suit properties had to be approved by the plaintiff: All these contentions had to be complied with before

the agreements is sought to be performed. Some of these conditions could not be complied with owing to the subsequent events that had happened

later. Hence the plaintiff having failed in his perform- ance of agreement cannot seek its enforcement belatedly.

(ii) It is true that the plaintiff came to be introduced to the first defendant by one Rajamanickam, It is true that the plaintiff is put on notice about the

nature of the holding of the suit property and any sale is subject to the approval of the transaction by other shareres. The other shareres did not

approve the transaction and the title was also not approved by the plaintiff. The defendant denies the allegations in the plaint regarding the alleged

expenditure by the plaintiff to remove the encroachers. It is true that the plaintiff agreed to put up a compound wall, but while doing so he

attempted to hold the property for his possession which resulted in the defendant filing the suit in this Court which was ultimately with drawn and

the comprehensive suit was filed in O.S.No. 68 of 1987 for possession. The allegation that time is not made the essence of the contract is denied.

The allegation that a copy of the draft sale deed was handed over to this defendant is dented. While the plaintiff disputed the title to the property

there is no question of concluding the sale transaction for any third party as the nominee of the plaintiff. The notices exchanged between the parties

expose the failure of the transaction dated 18.7.1975. The defendant had repudiated the agreement owing to the plaintiff not accepting the title and

the other defendant not approving the transaction. Hence the question of readiness will not be a ground available to the plaintiff. Factually the

plaintiff has not expressed his willingness to perform the agreement before the contract was repudiated by the defen- dants. Therefore the averment

as to his willingness to complete the transaction is only to perform the empty formality to sustain a case for specific performance. The plaintiff

attempted to vest title for himself and acting against the interest of the owners of the property. Hence any act done by the plaintiff during the

pendency of the Court proceedings will not bind the parties. The defendant had already filed O.S.No. 5691 of 1979 against the plaintiff for the

relief of possession and the appellate Court remanded the suit to the trial Court for fresh disposal. The present suit had come to be instituted only in

that background and it would therefore show that the plaintiff had not forward claiming specific performance alt these years and the said agreement

has lost its validity by lapse of time and wilful negligence on the pan of the plaintiff to assert his right, if any. Therefore the equitable relief of specific

performance should be denied. The relief to be granted being based on equitable principles, this Court cannot grant the decree for specific

performance even if it is lawful to do so. If a decree is granted in favour of the plaintiff it would put him in an unfair advantage over the defendants

and non-performance of the contract would do no hardship to the plaintiff. The circumstances under which the contract was entered into without

the other defendants being a party to the same makes it inequitable to grant specific performance. It is denied that the plaintiff was put in

possession pursuant to the agreement of sale.

The second defendant filed a written statement contending inter alia as follows:

(i) The suit is barred by limitation. Merely because the plaintiff is in posses- sion of the property it could not save the limitation. The possession of

the plaintiff is wrongful and illegal. The plaintiff had lost all his rights under the agreement when he has been informed by the advocate for the first

defendant on 14.5.1976 either to complete the sale or take refund of the advance. The plaintiff failed to choose either of the course. On 5.7.1976

the first defendant''s lawyer sent another letter to the plaintiff requiring him to complete the sale or otherwise the sale in favour of the third party

would take place. The plaintiff failed to respond to this notice as well and therefore it amounts to failure on the part of the plaintiff to complete his

part of the contract of sale. It also amounts to refusal of the performance of the contract of sale by the first defendant and all other co owners of

the properties. The earlier proceedings between the parties to the suit will not have limitation. The plaintiff has come before the Court after several

years according to his whims and fancies. He ought to have filed as early as in 1976 itself. The plaintiff was never willing and ready to perform his

part of the contract. Hence the discretionary relief should be denied to him. The agreement dated 18.7.1975 stipulated that the first defendant

agreed to sell and/or arrange or procure sale of the portion of the vacant land free from encumbrances. The plaintiff paid Rs.10,000 as advance.

The first defendant agreed to have the huts then existing on the land removed before the sale was completed. It was further provided that if the first

defendant was unable to have the huts removed on or before the date fixed for completion of the sale the plaintiff would have the option to

purchase the vacant portion of the land on which no huts stood at the same rate or have the agreement cancelled. The sale was to be completed

within three months from the date of the agreement, time being the essence of the contract. The plaintiff as soon as the huts were removed, has to

put up a compound wall around the land agreed to be sold so as to prevent further encroachments. The first defendant was under no obligation to

remove fresh encroachers.

(ii) The first defendant had removed the unauthorised encroachers from the property and allowed the plaintiff to put up the compound wall. The

plaintiff accordingly put up a compound wall in or around September, 1975 when the huts were removed. This defendant along with the first

defendant informed the plaintiff of fheir readiness and willingness to convey the property in 1976 itself and the plaintiff did not take any steps to

complete the sale. The plaintiff tried to take shelter under a notice issued by a third party claiming title to the property. On 14.5.1976 the advocate

foe the first defendant Wrote to the advocate for the plaintiff pointing out that the plaintiff committed breach of contract by not completing the sale.

The plaintiff had not even sent a draft sale deed. Therefore the first defendant called upon the plaintiff to pay the balance sale price within one week

from 14.5.1976 and complete the transaction or accept the refund of Rs. l0.000 paid as advance in token of the cancellation of the agreement. On

20.5.1976 the advocate for the plain tiff wrote stating that there was cloud in title; the plaintiff had spent large sum that his client was ready and

willing to complete the transaction provided the cloud in title is removed. The defendants never put the plaintiff in possession of the property. The

permission granted to construct the compound wall was only to secure the property against the encroachments. It cannot amount to delivery of

possession. The sale had to be completed within three months. The parties to the agreement treated time as the essence of the contract. As the

plaintiff was not adhering to the terms of the contract, this defendant along with the first defendant filed O.S.No. 5671 of 1979 before the City

Civil Court, Madras against the plaintiff. The suit was dismissed on 22.2.1982. The plaintiffs in that suit appealed in A.S.No. 366 of 1982 and the

appellate court by judgment dated 10.3.1983 remanded the suit for fresh disposal. The defendant in that suit filed CMA. No. 820 of 1983 before

the High Court at Madras. During the pendency of that appeal the defendants came to know that the plaintiff herein had unauthorisedly let the

property to Madras Container Terminal for a rent of Rs.10,000 per month. Therefore the suit was allowed to be withdrawn by an order of Court

and accordingly a comprehensive suit in O.S.No. 68 of 1987 came to be filed. Even during the pendency of the proceedings referred to above the

plaintiff had not elected to discharge his obligation under the agreement of sale. The claim of the stranger to the suit properties was not a reason for

the default or delay. The plaintiff committed breach of contract on 18.10.1975 by not completing the sale. In any event the defendant extended the

time by one week from 14.5.1976 and even this opportunity the plaintiff did not avail of.

Therefore the suit must be dismissed.

The third defendant filed a separate written statement and it was adopted by the fourth defendant. The statement of the third defendant inter alia

reveals the following defence:

The suit is barred by limitation. The reasons given in paragraph 7 for saving the suit form the period, of limitation is neither sustainable in law nor

maintainable on the facts of the case. It is not true to say that defendants 1 and 2 approached the plaintiff through one Rajamanickam. The

agreement is between the first defendant and the plaintiff. The other parties were put on notice of such a sale only later. However they adopted the

agreement as having been entered into by the first defendant for and on behalf of the members of the joint family, namely the defendants. But the

joint family stands now disrupted. The first defendant had removed the unauthorised occupants of the property and allowed the plaintiff to put up

the compound wall with a view to protect the property from further encroachment. That would not mean that the possession of the property was

handed over to the plaintiff. For the limited purpose of putting up a compound wall alone the plaintiff was permitted and no possession was handed

over to the plaintiff as is sought to be made out in the plaint. It is not correct to say that it is the plaintiff who removed the encroachments by

spending money. Time is the essence of the contract and the agreement shows that. It is denied that a draft sale deed was prepared and sent to the

defendants. A notice dated 14.5.1976 was issued to the advocate for the plaintiff pointing out that he had committed breach of contract of sale. In

any event the suit should have been filed within three years from the date of such notice of breach. No suit for specific performance having not

been filed within that time the present suit is liable to be dismissed. Having entertained a doubt on the title and having shown no interest in 1976 the

plaintiff is attempting to grab at the property evidently to take advantage of the increase in the price of the property in and around Madras. The

plaintiff was never willing and ready to purchase the property. The plaintiff by his own acts had disentitled himself to have the discretionary relief for

specific performance.

The suit is therefore liable to be dismissed.

The fifth defendant filed a separate written statement contending as follows:

The defendants constitute a Hindu undivided family of which the second defendant is the Kartha. The sale certificate for the suit property was

issued on 28.7.1956 to the second defendant by the Competent Authority under the Displaced Persons (Compensation & Rehabilitation) Act,

1954. The said certificate covered other properties as well. The second defendant brought the entire property so purchased into the hotchpot of

the joint family constituted by the defendants. In the year 1976 the property was orally divided into specific shares without division by metes and

bounds among the defendants. This defendant was not consulted by the first defendant when he entered into the agreement with the plaintiff dated

18.7.1975. The defendant came to know about the sale agreement very much later. A perusal of the agreement would show that this defendant is

not a party to the sale and the first defendant had only agreed to arrange for the sale. Assuming for argument that when the sale agreement is

binding on this defendant the subsequent events would show that this defendant is relieved by the conduct of the plaintiff from the obligation to sell.

Time is the essence of the contract and the plaintiff has not performed his part of the contract within the contracted time. The defendant

understands that the plaintiff had not even accepted the title of the property and wanted defendants 1 and 2 to prove the title. Under the agreement

the second defendant had to remove the encroachers and if he did not succeed in that, the plaintiff had the liberty to purchase such lands that were

available free from encroachers. The defendant understands that the second defendant removed the encroachment and allowed the plaintiff to put

up a compound wall and accordingly the plaintiff put up a compound wall in or about 1975 with the permission of the second defendant. The

second defendant by notice dated 14.5.1976 called upon the plaintiff to conclude the transaction within, one week. However the plaintiff failed.

The plaintiff got into possession of the property subsequently presumably taking advantage of the permission given by the second defendant to put

up the compound wall. The plaintiff had illegally let out the premises to others. The suit in O.S.No. 68 of 1987 for declaration and possession filed

by the defendants against the plaintiff is pending. The plaintiff was never ready and willing to perform his contract. The plaintiff is not in possession

of the property pursuant to the agreement of sale and his possession is illegal. The defendant had not put the plaintiff in possession of the property.

The plaint allegations in O.S.No. 68 of 1987 are summarized as hereunder:

(i) Plaintiffs 2 to 5 are the sons of the first plaintiff. The plaintiffs are the owners of the suit property. The suit property along with the adjacent

property was acquired by the first plaintiff under sale certificate dated 28.7.1956 given by the Competent Authority under the Disabled Persons

(Compensation and Rehabilitation) Act, 1954. Later he brought it into hotchpot of the joint family consisting of all the plaintiffs, they being Hindus.

In the year 1976 the properties were orally divided into specific shares but without division by metes and bound. The second plaintiff without

reference to other plaintiffs entered into an agreement dated 18.7.1975 with the first defendant for the sale of the suit property. The other parties

came to know of it later and they adopted the agreement as entered into by the second plaintiff for and on behalf of the members of the joint

family, namely, the plaintiffs, since disrupted. Under the agreement the second plaintiff agreed to sell and/or arrange or procure the sale of the lands

to the extent 18 grounds free from encumbrances. The first defendant paid Rs. 10,000 as advance. The second plaintiff had to remove the huts

then existing on the land before the sale was completed. It was further agreed that if the second plaintiff was unable to have the huts removed on or

before the date fixed for completion of the sale, the first defendant would have an option to purchase the vacant portion of the land excluding the

land on which the huts stood at the same rate or have the agreement cancelled. The sale was to be completed within three months, time being the

essence of contract. The first defendant as soon as the huts were removed was to put up a compound wall around the lands agreed to be sold, to

prevent further encroachments. The second plaintiff was under no obligation to remove fresh encroachments. The second plaintiff in the discharge

of the obligation under the agreement removed the unauthorised occupants from the suit properties and allowed the first defendant to raise the

compound wall so as to protect the property from further encroachment Accordingly the first defendant put up a compound wall in or about

September, 1975 when the huts were removed. The first and the second plaintiffs informed the first defendant about the readiness and willingness

to convey the property even in the year 1976. However the first defendant was not taking any steps to complete the sale.

(ii) The first defendant tried to take shelter under a notice issued by a third party claiming title to the property. On 14.5.1976 the advocate of the

second plaintiff wrote to the advocate of the first defendant pointing out that he had committed breach of contract by not completing the sale under

the agreement. The first defendant had not even sent a draft sale deed. Therefore the advocate for the second plaintiff gave notice calling upon the

first defendant to pay the balance sale price within one week from 14.5.1976 and to complete the sale or accept refund of Rs.10,000 paid as

advance in token of cancellation of the agreement. On 20.5.1976 the advocate for the first defendant wrote that there was cloud in title. It was

stated therein that the first defendant spent a large sum of money and he is in possession of the property, and that the first defendant was ready and

willing to complete the transaction provided the cloud in title was removed. The first defendant was never put in possession of the property. The

permission so granted to construct the compound wall was only to secure the property against encroachments. It was not symbolic of delivery of

possession. It was neither so conceived nor intended to be so. The sale has to be completed within three months. At no stage prior to the issuance

of notice the first defendant had ever stated that there is failure on the part of the second plaintiff to remove the huts and therefore he had removed

the huts. The first defendant is not authorised to remove the huts under the contract. The parties treated ''time'' as the essence of the contract.

Although the first defendant through his advocate would say that he was ready and willing to complete the sale but for the claim of the third party, it

was evident that the first defendant was not ready and willing to perform his pan of the contract. His conduct of taking shelter on the third party''s

claim was only an excuse.

(iii) The first and the second plaintiffs filed a suit in O.S.No. 5671 of 1979 in the City Civil Court, Madras against the first defendant for the relief

mentioned therein. The suit was dismissed on 22.2.1982. The plaintiffs appealed in A.S.No. 366 of 1982 and by judgment dated 10.3.1983 the

appellate Judge remanded the suit for fresh disposal. The defendant in that suit filed CMA. No. 820 of 1983 before the High Court. During the

pendency of the appeal the plaintiffs came to know that the first defendant had without any authority put the second defendant in possession of the

property. Therefore on advice the earlier suit was withdrawn with liberty to file a fresh suit undef orders of the Court. In the written statement filed

in the earlier suit, the first defendant after referring to the claim made by the third parties wanted only a clarification regarding the notice issued to

the third parties. Even during the pendency of the earlier proceedings the first defendant had not elected to discharge his obliga tion under the

contract of sale and admittedly the contention of the stranger being not a reason for the default or delay. The first defendant committed breach of

contract on 18.10.1975 by not completing the sale. In any event the plaintiffs had extended the time for the first defendant to perform his obligation

by seven days from 14.5.1976 and even that opportunity he has not availed of. The first defendant remained in default from 21.5.1976 and thus

lost his right to purchase the suit property under the agreement dated 18.7.1975. The first defendant has no right or title to be in possession of the

suit property. His possession is wrongful. The first defendant has let out the ''B'' schedule property on 2.4.1986 to the second defendant. The

leased out portion forms part of the ''A'' schedule property. The lease was oN a monthly rent of Rs. 8,500. The second defendant has no right to

remain in the property. It appears that the first defendant is wrongfully gaining a sum of Rs. 10,000 per month. Even if the Court holds that the

plaintiffs put the first defendant in possession of the property (Plaintiffs do not admit) the first defendant having no title and not paid the entire

themselves at the rate of Rs. 10,000 per month from 2.4.1986 to 16.7.1987 and the plaintiffs are entitled to claim a sum of Rs. l,55,000 as past

mesne profits. The plaintiffs have not permitted the first defendant to apply for permission to construct. Hence the suit.

The first defendant filed a written statement contending inter alia as follows:

(i) The suit as prayed for is not maintainable. The plaintiffs themselves have entered into an agreement with the first defendant and undertook to sell

the suit vacant site to him. The plaintiffs put the first defendant in possession of the same. Therefore the relief of declaration cannot be granted and

it cannot be sustained especially when the first defendant had filed the suit for specific performance of the contract of sale. The encroachments

were removed by the defendant. This defendant leveled the site spending huge amount and he has to spent much for removal of the

encroachments. The site being very near to the seashore, to prevent the erosion of the land by sea, the defendant had strengthened the border with

boulder stones and raised a compound wall 14 feet in height involving huge expenditure of more than Rs.1,00,000. When the encroachment was

removed the entire site was available for completion of the sale transaction. (Underlining by this Court). In the meanwhile a third party intervened

with a notice and claimed title for 52 cents in the suit property. The plaintiffs gave possession of the entire suit property to the first defendant and it

was only then he could remove the encroachment, level the ground, put up the compound wall around the entire site as per the instructions of the

plaintiffs so as to prevent any fresh encroachments. Thereafter the first defendant constructed house and watchman quarters to the knowledge of

the plaintiffs. (Underlining by this Court). This amounts to acquiescence by the plaintiffs and thus confirming the right and possession of the

defendants.

(ii) The second plaintiff did not remove the encroachments and he was never in the picture. The first defendant constructed the compound wall

independently and as a person in possession. The first defendant paid money to the hut dewellers for the removal. A sum of over Rs.50,000 was

spent to get the hut dwellers vacated and a further some of Rs.50,000 to have the ground levelled putting boulder stones for the compound wall.

Five independent houses with well, latrine and other amenities had been constructed as also watchman''s quarters. Since 1975 three watchman had

to guard the property in shifts. (Underlining by this Court). The defendant had received a notice from a lawyer issued on behalf of a third party

claiming title. Immediately thereafter the defendant sent a lawyer''s notice to the first plaintiff asking them to clear the cloud on the title. The plaintiffs

could not solve the third party''s claim and took time for completion. There was no proper response thereafter from the plaintiffs. As the

defendants has already in possession of the suit property he was anxiously awaiting intimation from the plaintiffs that the cloud in title was cleared.

There was no compliance.

(iii) The first defendant was put in possession in pursuance of the agreement of sale alone and it is not permissive. The first defendant is entitled to

be in possession in pursuance of Section 53A of the Transfer of Property Act. Time is not the essence of the contract and it was never intended to

be so. If time was the essence of the contract the plaintiff would not have kept quite when the first defendant put up constructions in the suit

property. In the normal course they would have raised objections. The first defendant is and he was always ready and willing to perform his part of

the contract according to it''s true constructions. The earlier suit filed by the plaintiff''s against the first defendant was maliciously withdrawn by the

first defendant never committed breach of contract and therefore his right under the contract is still in time. The possession is with the first

defendant and he has to necessarily exercise his right based on such possession. The value of the construction put up by the first defendant is more

than Rs.1.00 lakh. In having invested so much of money the first defendant is justified in leasing the property and earning an income. The first

defendant is now ready and willing to pay the balance sale consideration and obtain the sale deed. The plaintiffs should pay the Court fee on the

market value of the superstructure put up by the first defendant in the suit property when they seek the relief of declaration. The proper court fee is

therefore not paid in the plaint. The first defendant is not liable to pay any mesne profits. The defendant is not liable to hand over possession of the

site or superstruc- ture. The plaintiffs are not entitled to seek the relief of possession without paying the first defendant the marked value of the

superstructure and improvements made. The findings in O.S.No. 5691 of 1979 between the parties will apply to the case on hand on the principles

of res judicata and it is binding on the plaintiffs. The property tax to the suit property and the electricity service connection are in the name of the

first defendant and he is paying the amount due in respect thereof. The defendant is alone paying the watchman his remuneration which act the

plaintiff never questioned. The defendant had been recognised by the municipal authorities as the person in possession of the property pursuant to

the agreement of sale and he has been paying the property tax for the property. Ever since he was put in possession of the property for the past 13

years the watchman has been paid the salary and he has been guarding the property against instructions. The First defendant had spent over Rs. 6-

1/2 lakhs on various aspects mentioned above. Finding that mere was no return for the amount spent the first defendant has let out the building on

rent. Hence the suit must be dismissed.

The second defendant filed a memo adopting the written statement of the first defendant.

On the pleadings in O.S.NO. 189 of 1991 the learned trial Judges framed the following issues:

A. Whether the plaintiff is entitled to a decree for specific performance?

B. Whether the suit is barred by limitation?

C. Whether the plaintiff is ready and willing to perform his part of the contract?

d. Whether the plaintiff is in possession of the property under the contract of sale?

e. To what relief are the parties entitled to?

On the pleadings arising in O.S.No. 68 of 1987 the learned trial Judge framed the following issues:

a. Who had committed breach of contract namely whether the plaintiffs or the defendants?

b. Whether the relief of declaration prayed for by the plaintiffs is in accord ance with law?

c. Whether the plaintiffs claim for possession against the defendant is in accordance with law?

d. Is not the defendant liable to pay past and future mesne profits?

e. To what relief the plaintiffs are entitled to?

It appears that common oral evidence as well as documentary evidence had been let in O.S.No. 68 of 1987. On behalf of the vendors the

second plaintiff in O.S.No. 68 of 1987 examined himself as P. W. l. On behalf of the buyer the first defendant in O.S.No.68 of 1987 examined

himself as D.W.1. He had also examined another witness D.W.2. On the side of the vendors seven exhibits were marked as Ex.A.l to Ex.A.7 and

on the side of the buyer 50 exhibits were marked as Exs.B.l to B.50. After applying his mind the learned trial Judge first took up for consideration

issue No.l in O.S.No. 68 of 1987 and issues No.2. 3 and 4 in O.S.No. 189 of 1991. The finding on issue No.l in O.S.No. 68 of 1987 was

decided in favour of the plaintiffs in that suit holding that it is the defendant in that suit who had committed breach of contract. On issue No.4 in

O.S.No. 189 of 1991 the learned trial Judge held that the buyer is not in possession of the property pursuant to the contract and the property is in

the possession of the vendors. On issue No.3 in O.S.No. 189 of 1991 the finding was that the plaintiff in that suit was not ready and willing to

perform his part of the contract. Likewise on issue No.2 the learned trial Judge held that the suit was barred by limitation and on issue No.l in

O.S.No. 189 of 1991 the learned trial Judge found that the plaintiff in that suit is not entitled to the relief for specific performance. Consequently

the answer on issues No.2 and 3 in O.S.No. 68 of 1987 went in favour of the plaintiff in that suit. On issue No.4 in O.S.No. 68 of 1987 the

learned trial Judge granted a decree for a sum of Rs. 43,500 towards past mesne profits and at the rate of Rs.3,000 per month towards future

mesne profits. In the result O.S.No. 189 of 1991 was dismissed and O.S.No. 68 of 1987 was decreed. Questioning the correctness of these two

judgments the defendants in O.S.No. 68 of 1987 are before this Court in A.S.No. 729 of 1993 and the plaintiff in O.S.No. 189 of 1991 is before

this Court in A.S.No. 730 of 1993. On behalf of the appellant in A.S.No. 730 of 1993 C.M.P.No. 17936 of 1999 under Order XLI Rule 2 of

C.P.C. is filed for leave to raise additional grounds. I perused the affidavit filed in support of the application. The additional grounds are purely

questions of law about the starting point of the limitation and it can be decided with reference to the pleadings and the materials available on

record. Mr.R. Alagar, learned Senior Counsel in both the appeals confirms this and the submission is not controverted by Mr.S.V. Jayaraman,

learned senior Counsel for the contesting respondent/decree holders in the declaration suit. I am also of the opinion that the additional grounds

raised do not require any further evidence and those grounds can also be decided, if allowed to be raised on the materials available on record.

Accordingly the C.M.P. is allowed as prayed for.

Mr.R. Alagar, learned senior Counsel for the appellant in both the appeals contended as follows:

It may be true that the agreement of sale between the parties is dated 18.7.1975 and the suit to specifically enforce a contract of sale came to be

filed only on 6.4.1987. But it cannot be said that from the mere presentation of the plaint on 6.4.1987 i.e., almost at the end of 12 years from the

date of agreement of the sale, it should be held that the suit is barred by limitation. The learned Senior Counsel elaborated the arguments stating

that even though clause 5 of the agreement of sale stipulates three months time from the date of the execution of the agreement as the time for

completion of the sale and time being made the essence of the contract, yet the Court is entitled to apply the doctrine of imputing the intention of

the parties to a contract which may at times be at variance with the terms of the contract reduced to writing. The learned Senior Counsel also

states that in all transactions relating to the sale of immovable properties time is not the essence of contract and unless it is specifically mentioned,

supported by circumstances, the Court has to ignore the time stipulated for completing the sale. The learned Senior Counsel would contend that

the property agreed to by conveyed do not belong absolutely to the party who contracted to sell the same under the agreement. The agreement

itself provides an obligation oh the party agreeing to sell to arrange or to procure sale of the land by getting the sale deed or sale deeds executed

by the different owners of the property comprising the entire lot of about 18 grounds. Right from 18.7.1975 the party, who agreed to sell, did not

put on notice the buyer about the steps taken by him in regard to making arrangements or getting sale deed or sale deeds executed by the other

owners of the property. In other words so long as the party, who agreed to sell under the agreement, had not made it known to the buyer by any

acceptable evidence that alt the owners of the property are willing to join in the execution of the sale deed, there is no obligation on the part of the

buyer to perform any act under the contract. According to the learned Senior Counsel in such events, the time for filing the suit would commence

only from the vendor showing his readiness to sell and performs all the obligations to be performed by him under the contract. Unless the vendors

perform all their obligations under the agreement, the buyer need not do anything at all and his right to enforce the contract would not arise at all.

For this purpose the learned Senior Counsel relied on the judgment of the Division Bench of this Court in Lakshminarayana Reddiar Vs.

Singaravelu Naicker and Another, . The learned Senior Counsel would again contend that on the facts available in this case it is clear that it is the

vendors who are guilty of committing breach of contract and not the buyer and once this is established the decree for specific performance should

automatically follow in favour of the buyer. It is again contended by the learned Senior Counsel that the buyer in this case had pleaded and proved

that he has always been ready and willing to perform his obligation under the contract of sale and therefore there cannot be any legal obstacle in the

way of the court in granting the decree for specific performance in favour of the buyer. Though the presentation of the plaint at the completion of

almost 12 years after the agreement of sale by itself may shock the conscience of the Court to deny the equitable relief, yet if the Court goes into

the facts deeply and analyse the conduct of the parties to the agreement, then there may not be any difficulty at the for the Court to come to the

conclusion that it is the vendors who have been evading through out to perform their part of the contract and for which the ever ready and willing

buyer should not be visited with any penalty. The learned Senior Counsel would also contend that to Ex.A.l all the owners of the property are not

parties to it. Therefore in the absence of any acceptance by the other owners of the property at any time after the agreement and before the filing of

the suit for specific performance to convey the lands, normally it should be held that on the date of the plaint, the plaintiff had no cause of action.

But in this case the vendors have accepted categorically in the plaint in O.S.No. 68 of 1987 that all the vendors have admitted the agreement as

one entered into on, their behalf. The plaint was verified on 17.7.1987 and therefore that date alone would be the starting point of the cause of

action for the suit for specific performance. The admission of the third defendant in the written statement filed to the suit for specific performance

that all of them adopted the agreement as having been entered into by one of the vendors for and on behalf of the members of the joint family will

also extend the period of limitation and that statement was verified on 7th of August, 1989. Therefore according to the learned Senior Counsel

these two admission namely, the plaint in the suit for possession and in the written statement to the suit for specific performance, being subsequent

events can always be taken into account to hold that though the plaint in the suit for specific performance was presented much earlier to these two

dates, yet the presentation of the plaint can be legally postponed to the two dates referred to above. Therefore if the subsequent admissions are

taken into account as facts giving rise, to cause of action it cannot be said that the suit is barred by limitation. For this argument that the subsequent

events can always be taken into account while moulding the relief the learned senior Counsel relied on the following decisions: relied on .

Amritlal N. Shah Vs. Alla Annapurnamma, ; 2. K.S. Deenadayalu Reddy Vs. Lalithakumari, ; 3. Velammal and Others Vs. Chokkiah Gounder

and Others, .

Lastly the learned Senior Counsel would contend that even assuming that the suit for specific performance has to be rejected solely on the ground

of limitation, yet the buyer had been put into possession of the property agreed to be sold under the agreement of sale. The buyer had satisfied all

the requirements of Section 53A of the Transfer of Property Act including his willingness to perform his part of the obligations under the contract of

sale. Therefore the buyer can legally and lawfully resist the suit for possession filed by the owners. The learned Senior Counsel would add that the

evidence available in this case established beyond doubt that there is a written instrument duly signed by the parties agreeing to transfer immovable

property; the buyer had taken possession of the same in part performance of the contract; he has done some act in furtherance of the contract and

that he has established that he is willing to perform his part of the contract. Relying upon the following judgments in

Sheth Maneklal Mansukhbhai Vs. Hormusji Jamshedji Ginwalla and Sons, ; 2. Ekadashi Vs. Ganga and Others, ; 3. Chaman Lal Vs. Surinder

Kumari, ; 4. Vijay Lalchand HUF and Another Vs. K.M. Lulls HUF, ; 5. Parvathi Ammal v. M. Kuppuswamy and another, 1999 TLNJ 177.

the learned Senior Counsel contended that Section 53A of the Transfer of Property Act would come to the rescue of the buyer. The learned

Senior Counsel lastly contended that in view of the coming into force of the Urban Land (C&R) Act 34 of 1976 (Central Act) and the coming into

force of the Tamil Nadu Urban Land (C&R) Act, 1978 the buyer was legally disabled from filing the suit for specific performance and therefore

during the period when the two the Acts were in force it cannot be said that the buyer could have filed the suit to show his readiness and

willingness Mr. R. Alagar would further add that the willingness on the part of the transferee as provided for u/s 53A of the Transfer of Property

Act cannot be treated on par with the readiness and willingness on the part of the buyer as provided for u/s 16(c) of the Specific Relief-Act.

According to the learned Senior Counsel the quantum of proof expected of a transferee to make out his case of willingness as provided for u/s

53A of the Transfer of Property Act cannot be as rigid as the quantum of proof from a buyer to establish his readiness and willingness as provided

u/s 16(c) of the Specific Relief Act.

Contending contra Mr.S.V. Jayaraman, learned Senior Counsel would state that even at the outset the willingness on the part of the transferee

as provided u/s 53A of the Transfer of Property Act must be treated on par with the readiness and willingness on the part of the buyer u/s 16(c) of

the Specific Relief Act and the quantum of proof to establish that fact under both the enactments must be the same. As in the case of the Specific

Relief Act the transferee u/s 53A of the Transfer of Property Act should also plead and establish his readiness and willingness right from the

agreement of sale continuously atleast till the hearing of the suit. As far as the arguments advanced on the doctrine of part performance is

concerned that the buyer was never put in possession pursuant to the agreement of sale therefore he cannot rely upon that protective clause. At

best the possession of the buyer can be construed as one of permissive in nature to enable him to put up a compound wall alone and nothing more

and the act of putting the compound wall would not amount to either the buyer being put in possession of the property or the buyer taking

possession of the same under any contract of sale. The moment the construction of the compound wall is completed the buyer has no authority to

be any where in the property. The buyer''s duty to prevent future encroachments would not give him any right consistent with the right of a person

put in possession of the property under the agreement of sale. According to the learned Senior Counsel for the vendors the buyer had not satisfied

any of the requirements of Section 53A of the Transfer of Property Act. The learned Senior Counsel would vehemently contend that the buyer had

also not established his readiness and willingness on his part to perform his obligations so as to give him the benefit of Section 53A of the Transfer

of Property Act. The learned Senior Counsel would also add that atleast on three clear occasions the buyer was put on notice about his duty to

perform his obligations and the suit having not been filed within three years from any of the three respective periods referred to above, it must be

held that the suit is barred by limitation. Once it is established that the buyer is not ready and willing to perform his obligations under the contract no

further question arises and therefore the learned trial Judge rightly dismissed the suit for specific performance as well as decreed the suit for

possession. As far as the filing of the suit for specific performance is concerned the learned Senior Counsel Mr.S.V. Jayaraman would contend that

though normally time is not the essence of the contract in an agreement of sale of the immovable property, yet the recent development of law as

pronounced by the Honourable Supreme Court of India is that the Court should not totally ignore the time stipulated in the agreement for

completion of sale and it must be given some meaning. Therefore the learned Senior Counsel would add that in any event a person seeking

equitable relief has to exercise that option within a reasonable time and in this case the buyer, having allowed more than 11-1/2 years to lapse from

the date of the agreement of the sale before ever he thought of filing the suit, should be denied the equitable relief. The learned Senior Counsel

would also add that by granting a decree for specific performance the vendors will be exposed to considerable hardship and the buyers will suffer

none if the decree goes against him. The contract of sale is of the year 1975. The property agreed to be sold is almost in the city of Madras

buzzling with commercial activities. The value of the property has gone up manifold and even on the date of the suit for specific performance filed in

the year 1987 the value was in the region of Rs.5,70,000 and even on this ground the relief in equity should be denied. The learned Senior Counsel

would also contend that the buyer never entertained any doubt in his mind as to whether all the persons would agree to join, or not in the execution

of the sale deeds and his only doubt, if at all there was any doubt, was with reference to the third party''s claim. Inasmuch as the doubt was cleared

long before the suit filed after the expiry of three years from that time also cannot be sustained Mr.S.V. Jayaraman, learned Senior Counsel in

support of his arguments relied upon the following decisions:

Maruthai v. Padmini Ramachaadran, 1993 (2) L.W. 318; 2. Vijay Lalchand HUF and Another Vs. K.M. Lulls HUF, ; 3. V.C. Siddha Chetty

& others v. Govindappa Naidu, 1996 TLNJ 358; 4. Vasantha & 3 others v. M. Senguttavan, 1997 (2) L.W. 820; 5. K. Narendra Vs. Riviera

Apartments (P) Ltd., .

In the light of the arguments I perused the entire records including the pleadings as well as the judgment under challenge. On the pleadings

available in both the suits the following questions arise for consideration in this appeal:

Whether the buyer has been or has not been ready and willing to perform his obligation under the agreement of sale dated 18.7.1975?

Whether the buyer is entitled to have the relief of specific performance granted in his favour?

Have not the vendors performed their obligations under the contract of sale dated 18.7.1975?

Was not the buyer put in possession of the property agreed to be sold in part performance of the contract dated 18.7.l975?

Is not the buyer entitled to the protection granted to a transferee u/s 53A of the Transfer of Property Act?

Is hot the suit for specific performance barred by limitation?

Whether the vendors are entitled to the relief of declaration; possession and for mesne profits, past and future?

To what relief the parties are entitled to?

A discussion on one issue is likely to overlap the discussion on the other issue. Therefore with a view to avoid repetition I have decided to take

up all the issues together. Since both the suits were disposed of by a common judgment, this Court also decides that it is desirable to dispose of

both the suits were disposed of by a common judgment, this Court also decides that it is desirable to dispose of both the appeals by a common

judgment.

It is needless to state that the agreement holder in his suit for specific performance has to necessarily plead and prove that he has been ready

and willing to perform his part of the contract. Courts have held that such readiness and willingness must be shown to be in existence continuously

right from the date of the agreement atleast till the hearing in the suit to be followed by the judgment. Section 16(c) of the Specific Relief Act states

that unless the agreement holder avers and proves 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 he would be disabled from getting the relief. One of the requirements to be established to get protection

u/s 53A of the Transfer of Property Act is that the transferee must have performed or is willing to perform his part of the contract: Mr.R. Alagar,

learned Senior Counsel for the buyer argued that the quantum of proof to show willingness to perform on the part of the transferee as

contemplated u/s 53A of the Transfer of Property Act cannot be as rigid and stringent as the quantum of proof expected of an agreement holder to

plead and prove in his suit for specific performance that either he has performed or he has always been ready and willing to perform. Mr.R.

Alagar, learned Senior Counsel laid emphasis on the absence of the word ''ready'' before the word ''willing'' in Section 53A of the Transfer of

Property Act and contended that the said absence makes all the difference between the quantum of proof required u/s 53A of the Transfer of

Property Act when compared to Section 16(c) of the Specific Relief Act. This argument though prima facie appears to be impressive, yet in my

respectful opinion it really does not deserve acceptance. It is no doubt true that the word ''ready'' is absent in Section 53A of the Transfer of

Property Act. The word ''willing'' is given the meaning as ''ready to consent'' or ''undertake''. Therefore, there cannot be ''willingness'' in the

absence of ''readiness''. To establish that a person is willing unless the fact of readiness is established, willingness by itself cannot stand. This

question about what meaning should be attached to the term ''willingness'' in Section 53A of the Transfer of Property Act came up for

consideration in the reported judgment of this Court in Y.A. Kader Vs. Muthulakshmi Ammal (deceased by L.R''s), . A distinction was sought to

be made before the learned Judge in that case stating that mere willingness to perform the transferee''s pan of the contract u/s 16(c) of the Specific

Relief Act need not be shown. But however the learned Judge rejected the said contention holding as follows:

But, the learned Counsel for the appellant, however, contends that the term used in Section 53A is mere willingness to perform the transferee''s

part of the contract and not readiness and willingness to perform his part as mentioned u/s 16 of the Specific Relief Act. But, the said counsel was

unable to cite any authority to make any such distinction between the above said terminology used in Section 53A and the corresponding one used

in Section 16 of the Specific Relief Act. On the other hand, the learned Counsel for the Respondents brought to my notice three decisions from

which it can be safely inferred that the term ''willingness'' used in Section 53A of the Transfer of Property Act is nothing different from the term

''willingness and readiness'' used in Section 53A of the Specific Relief Act.

...............

So, it is clear from the above said passages quoted in the above referred to three decisions, the term ''willingness'' used in Section 53A would

mean only ''readiness and willingness'' used in Section 16 of the Specific Relief Act.

Therefore according to me there cannot be any doubt in the mind of the Court that both in the suit for specific performance filed by the vendors

against the buyer for possession. Where the buyer had assumed the role of ''transferee'' the common fact, namely ''readiness and willingness'' to

perform the respective obligation of the agreement holder/transferee has to be necessarily established. In the suit for specific performance there is

pleading on the requirement of readiness and willingness. It is not the case of the agreement holder/transferee that he has performed his part of the

contract. Therefore the Court has to decide by scanning the materials available as to whether the agreement holder/transferee is ready and willing

to perform his part of the contract. As already noticed in a suit for specific performance filed by the agreement holder the plaintiff must show his

readiness and willingness continuously from the date of the agreement till the hearing of the suit. This requirement as noticed above would equally

apply to a transferee taking shelter u/s 53A of the Transfer of Property Act and there cannot be any dispute on this question. In Karthikeya

Mudaliar v. Singaram Piliai and another AIR 1956 Mad. 693 the question that came up for consideration was whether defendant-2 in that suit is

entitled to continue in possession by virtue of the application of the doctrine of part performance u/s 53A of the Transfer of Property Act. That was

a suit filed by the plaintiff for injunction or in the alternative for possession. It was contended before the learned Judge in that case that the second

defendant had not expressed his readiness and willingness to perform his part of the contract. The learned Judge found that he was unable to see

anything either in the pleadings or in the evidence or in the correspondence that passed between the parties that there was no such readiness and

willingness on the part of the second defendant to comply with his part of the agreement. After doing so the learned Judge held as follows:

The readiness and willingness to perform his part of the contract must no doubt be established by evidence and that readiness and willingness must

be shown to have existed ever since the time of the agreement and not necessarily when the suit is filed (Italics by this Court)

In Sardar Govindrao Mahadik & another v. Devi Sahai and others, AIR 1992 S.C. 989 it was held:

Section 53A requires that the person claiming the benefit of part performance must always be shown to be ready and willing to perform his pan of

the contract and if it is shown that he was not ready and willing to perform his part of the contract he will not qualify for the protection of the

doctrine of pan performance."" (Italics by this Court)

The judgment of the Honourable Supreme Court of India in Mohan Lal (Deceased) through his Lrs. Kachru and Others Vs. Mirza Abdul Gaffar

and Another, is based on the following facts:

The appellant on an agreement of sale dated 8.3.1956 paid part consideration of Rs. 500 and obtained possession of the lands, Subsequently the

respondent purchased the lands by sale deed dated 23.3.1960. In the meanwhile the appellant''s suit for specific performance of the contract of

sale was dismissed and became final. The respondent filed a suit for possession which had given rise to the appeal. The trial Court decreed the suit

and on appeal it was reversed and the suit was dismissed. In the second appeal the High Court set aside the judgment of the appellate Court and

restored the decree of the trial court.

On the facts noticed above the Honourable Supreme Court of India held as follows:

The question then is whether he is entitled to retain possession u/s 53A. It is an admitted fact that suit for specific performance had been dismissed

and became final. Then the question is whether he is entitled to retain possession under the agreement. Once he lost his right under the agreement

by dismissal of the suit, it would be inconsistent and incompatible with his right to remain in possession under the agreement. Even otherwise, a

transferee can avail of Section 53A only as a shield but not as a sword. It contemplates that where any person contracts to transfer for

consideration any immovable property by writing, signed by him or on his behalf, from which the terms necessary to constitute the transfer can be

ascertained with reasonable certainly and the transferee has performed or is wilting to perform his part of the contract, he would be entitled to

retain possession and to continue in possession which he has already received from the transferor so long as he is willing to perform his part of the

contract. Agreement does not create title or interest in the property. Since the agreement had met with dismissal of the suit his willingness to

perform his part of the contract does not arise.

Even otherwise, in a suit for possession filed by the respondent, successor-in-interest of the transferor as a subsequent purchaser, the earlier

transferee must plead and prove that he is ready and willing to perform his pan of the contract so as to enable him to retain his possession of the

immovable property held under the agreement. The High Court has pointed out that he has not expressly pleaded this in the written statement. We

have gone through the written statement. The High Court is right in its conclusion. Except vaguely denying that he is not ready and willing to

perform his part, he did not specifically plead it u/s 16(c) of Specific Relief Act, 1963, the plaintiff must plead in the plaint, his readiness and

willingness from the date of the contract till date of the decree. The plaintiff who seeks enforcement of the agreement is enjoined to establish the

same. Equally, when the transferee seeks to avail of Section 53A to retain possession of the property which he had under the contract, it would

also be incumbent upon the transferee to plead and prove his readiness and willingness to perform his pan of the contract. He who comes to equity

must do equity. The doctrine of readiness and willingness is an emphatic way of expression to establish that the transferee always abides by the

terms of the agreement and is willing to perform his part of the contract. Part performance, as statutory right, is conditioned upon the transferee''s

continuous willingness to perform his part of the contract in terms covenanted thereunder. (Italics by this Court).

Therefore as u/s 16(c) of the Specific Relief Act, the transferee relying on Section 53A of the Transfer of Property Act, to protect his possession,

must show his readiness and willingness continuously from the date of the agreement till the hearing of the suit.

To decide the question as to whether the agreement holder/transferee has been ready and willing to perform his part of the contract and

whether the vendors had committed any breach of the contract it will be useful to extract herein the relevant clauses in the agreement of sale and

they are as hereunder:

The vendor agrees to sell and/or arrange or procure the sale of the vacant land of an approximate extent of 18 grounds free from encumbrances

and the deed has to be in the name of the purchaser or his nominees; a sum of Rs. 10,000 has been paid as advance which has to be adjusted in

the final payment to be made before the Registering Officer; the vendor has to remove the huts existing on the land before the sale is completed; if

the vendor is unable to remove the huts on or before the date fixed for the completion of the sale the purchaser shall have the option to purchase

the vacant portion of the land excluding the land occupied by the huts at the same rate or have the agreement cancelled, in which event he is

entitled to have the sum of Rs. 10,000 paid with interest; the root of the title to the property is the certificate of allotment by the Assistant

Settlement Commissioner, Bombay, Ministry of Rehabilitation on 29.8.1958 and encumbrance certificate from the said date till date and the patta

standing in the name of Gokaldas Dharamdas and the partition deed; the vendor shall make available the said documents for scrutiny by the

buyer''s lawyer within one month from that date and title shall be subject to the approval of the said lawyer; the sale or sales shall be completed

within three months and time is the essence of the contract; the vendor shall arrange to have the sale deed or sale deeds executed by different

owners of the property comprising the entire lot of about 18 grounds, the buyer shall put up a compound wall around the land agreed to be sold as

soon as the huts are removed so as to prevent any further encroachment and the vendor shall be under no obligation to have the hut dowellers

vacated if such encroachment takes place after the removal of the huts then standing.

The parties to the contract are (a) Arjun Gokaldas (one of the owners and (b) Maruthai (the buyer). It is clear from the terms of the agreement that

the vendor has to arrange for the sale of the entire land by getting the sale deed or sale deeds executed by the different owners and that he has to

remove the huts before the sale is completed. Since three months time is fixed for the completion of the sale, the removal of the huts must therefore

necessarily be before the expiry of the said three months from 18.7.1975. The obligations fast upon the buyer under this agreement is that he must

pay, the balance price before the registering officer; that his lawyer must approve the title; that the buyer had a right to buy the land excluding the

land occupied by the huts if the huts are not removed and if the huts were removed he has to put up a compound wall around the land as provided

for in the agreement to prevent any future encroachments. It is not in dispute between the parties that the hut dewellers and the encroachments

were removed. However there is a dispute as to who removed those encroachments. The vendors would contend that it is they who removed the

encroachments whereas the buyer would contend that the vendors were not able to remove the huts within three months'' time and thereafter it is

he who had removed the encroachments. The fact also remains and it is not in dispute that the buyer has put up a compound wall and appointed a

watchman to prevent future encroachments. Once the encroachments are shown to have been removed the only other obligation of the vendor

under Ex.A.1, is to arrange for the sale of the entire lands by different owners. As sale deed or sale deeds executed by different owners. As far as

the title is concerned the parties are ad idem that the vendors had good title till the buyer for the first time was put on notice about the claim of the

third party by a lawyer''s notice dated 27.3.1976 marked in this case as Ex.B.11. Therefore it is clear that from 18.7.1975 till the receipt of

Ex.B.11 there was no doubt and there could not have been a doubt in the mind of the buyer about the title of the vendors. Therefore two out of

three obligations of the vendor namely removal of the huts and showing good title had been shown to have been performed by the vendors. In fact

in Ex.B.7 dated 29.5.1976 the lawyer, for the buyer had affirmed the scrutiny of the title documents and they were found to be in order. It is also

not the case of the buyer that the vendors had not established their title. As already noticed only under Ex.B.11 a third party projected his claim.

The question whether who removed the encroachments is not really going to matter much in this case since the removal of the encroachment was

also in the year 1975 itself. The buyer in his written statement in the suit for possession had stated that after the removal of the encroachment by

him he had put up a compound wall besides putting up a number of constructions on the land and since 1975 three watchmen had to guard the

property in shifts through out day and night. Therefore it is clear that the removal of encroachment was complete after the agreement of sale and

during the year 1975 itself. As otherwise there was no need for the buyer to employ three watchmen to guard to property even in the year 1975

itself. In his oral evidence as D.W.1 the buyer would state that the compound wall was constructed by him in the year 1975. The averment in the

plaint filed in the suit for specific performance is that the buyer had sent a draft sale deed to the vendors and only after that Ex.B.11 issued on

behalf of the third party claim was received. When exactly the draft sale deed was sent cannot be found out from the entire records. But I am

referring to this aspect at this stage only to show that the buyer was satisfied with the title of the vendors also. The buyer in his written statement

filed in the suit for possession would also state that after the encroachment was removed the entire site was available for completion of the sale

transaction. (Italics by this Court). AH this would definitely mean that even by the end of the year 1975, the sale could have been completed.

Mr.R. Alagar, learned Senior Counsel would contend that Ex.A.l casts an obligation on the part of the one of the vendors, who alone was a

party to it to arrange of procure the sale of the land agreed to be conveyed and also get the sale deed or sale deeds executed by different owners.

Unless and until, according to the learned Senior Counsel, the buyer is put on notice by acceptable evidence that all the vendors have expressed in

writing that they are willing to execute the sale deed it cannot be said that the vendors have performed their part of the obligation under the

contract. This submission deserves to be noted only to be rejected for the following reasons: One of the vendors, who alone was made as a party

to Ex.A.l, had taken the responsibility of arranging for the sale of the entire land and also to get the sale deed or sale deeds from all the owners.

The agreement does not contemplate the vendor under Ex.A.l to get written consent from the other owners and pass on the same to the buyer.

Therefore for the buyer to insist on the vendor under Ex.A.l to get express consent letters in writing from the other owners would be calling upon

him to do an act which was not required to be done under the terms of the agreement. The buyer, with his eyes open and knowing fully well that

the person who, agreed to sell the lands to him under Ex.A.l was not the complete owner, relied upon his statement in Ex.A.l that he will arrange

for the sale of the entire land by getting the sale deed or sale deeds executed by all the owners, entered into the agreement. The other owners are

none else than his brothers and their father. Therefore it was a matter of trust between the parties and the buyer was prepared, to act on the day

when he entered into the agreement Ex.A.l to act on the assurances of the vendor as reflected, in the agreement itself. The question therefore is

whether the buyer had; information or, knowledge about the intention and the decision of all the vendors to join in executing the sale deed or sale

deeds in his favour.

The allegation in the plaint filed in the suit filed for specific performance is that a draft sale deed was also prepared and sent to the defendants

(Italics by this Court). It is too well known that when a draft sate deed is sent, it means that the buyer is ready to complete the sale. The act of

sending the draft sale deed would unequivocally put the vendors on notice about the readiness of the buyer. As already noticed the buyer never

complained at any stage when the suits were pending that he was unable to complete the sale for want of knowledge of all the owners agreeing to

execute the sale deed. It is no doubt true that the vendors have denied the receipt of the draft sale deed. In Ex.B.4 dated 22.4.1976 sent on behalf

of the buyer to the father (one of the five vendors) it is stated that a draft sale deed was also sent to the addressee. Ex.B.5 is the reply sent on

behalf of the vendor under Ex. A.1 and Ex.B.6 is the reply sent on behalf of the addressee under Ex.B.4. In both these documents there is no

denial about the receipt of the draft sale deed referred to in Ex.B.4. Therefore I agree with Mr.R. Alagar, learned Senior Counsel that a draft sale

deed has been sent. The conduct of the buyer in sending the draft sale deed to the other contracting party is yet another fact to conclude that the

buyer had accepted the title of the vendors. The buyer however had not chosen to file the copy of the said draft sale deed which would have been

normally prepared.

In Ex.B.5 reply the buyer was accused by stating that he is not having the requisite funds to complete the transaction and committed breach of

the contract. In that notice the buyer was called upon to pay the balance sate price within one week from that date and complete the sale or to

take back Rs.l0,000 paid as advance in cancellation of the agreement. It is no doubt true that the father under Ex.B.6 states that he had not given

his consent till then for the sale. Ex.B. 6 is dated 15.5.1976. Ex.B.7 is a common reply to Exs.B.5 and B.6 where it is admitted that the vendor

shown in Ex.A.l and his father met the lawyer and discussed about the manner and mode of bringing about the sale deed. It also refers to a draft

power of attorney to be executed by some of the vendors who are permanent residents of Bombay. Therefore it could be clearly seen from Ex.B.7

that prior to the issuance of Ex.B.7 there was meeting of minds among the parties and the buyer was put on notice about the willingness of all the

vendors to join in the sale deed as otherwise there would have been no need for the preparation of power of attorney to be executed by some of

the vendors. Ex.B.8 dated 5.7.1976 is a reply to Ex.B.7 issued on behalf of the vendor shown in Ex.A.l. In Ex.B.8 meeting of minds was accepted

and it is further stated that all the parties decided to join the sale and that there was no need for any partition deed. It is further stated therein that

when those aspects were settled the buyer, for the reasons best known to him, did not comply with the terms of the agreement and complete the

sale. It is further stated there in that the vendor shown in Ex.A.l was ready and willing to complete the sale but it is only the buyer who had been

protracting the transaction and it is because he had no means. When under Ex.A.1 one of the vendors, who is a party to Ex.A.l, had undertaken to

get the sale deed or sale deeds executed by other owners and/or arrange for the sale of the entire property it is not for the buyer to tell him in what

manner the vendor should arrange for the execution of the sale deeds. Botheration in this regard is that of the vendor under Ex.A.1 and when he

had categorically stated in Ex.B.8 that all the parties had decided to join the sale deed and that he was ready to have the sale completed, the buyer

should have acted upon it and got the sale deed executed.

It is not the case of the buyer at any stage i.e., when the two suits were pending before the lower Court or even before the filing of the suit that

absence of intimation or communication either from the vendor under Ex.A.1 or from the other vendors about their willingness to join the sale deed

was the ground which disabled him from completing the sale. Only for the first time before this Court Mr.R. Alagar, learned Senior Counsel made

submissions in that regard. In fact the averments in Ex.B.7 give a positive clue that the vendors performed all their obligations under the contract of

sale long before Ex.B.11 dated 27.3.1976. In fact it can even be said that the vendors might have performed their obligations under the contract

within the time prescribed under Ex.A.1 or within a reasonable time. The recitals in Ex.B.7 are as follows:

Obviously your clients have not given you full instructions as to what actually transpired all these months. (Italics by this Court) The title deeds

were scrutinised and found to be in order, advance was paid, my client put in possession of the property........

.....My recollection (Italics by this Court) is that both Arjundas Gokaldas and Gokaldas Dharamdas came to be one day (Italics is by the Court)

and discussed with me as to how the sale deed is to be prepared. Your clients represented that the property was joint family property and has

been declared so before the income tax authorities and that for purposes of capital gains tax it would be better if separate deeds were executed by

the various members of the joint family. (Italics by this Court) They also discussed with me stating that here had been an oral partition and that their

auditor had cited some judgment to state that the oral partition can be acted upon. But as I insisted on a partition your clients took from me a draft

of partition deed as also a draft of power of attorney to be executed by some of the members who are permanent residents of Bombay. It was

after all these (Italics by this Court) that my client got a copy of a notice claiming that one Bodlamul had also a claim. (Notice from Bodlamul is

Ex.B.11 dated 27.3.1976.

In the light of my above discussion and the facts noticed I am not impressed with this argument of the learned Senior Counsel and I hold that the

absence of communication or intimation either from the vendor under Ex.A.1 or from the other vendors about their willingness to join in executing

the sale deed in favour of the buyer or his nominee was never the ground which was in the mind of the buyer which disabled him from performing

his part of the contract. From the totality of the circumstances available, I am inclined to hold that the buyer was aware about all the vendors

joining the sale deed even immediately after the agreement of sale as otherwise he would have put that as the first ground either in his plaint or his

written statement in the suit for possession or in any other correspondence sent by him prior to the suits. In fact to be more emphatic I can say that

there is no reference at all to these aspects at any stage of the proceedings before the lower Court. As far as Ex.B.l 1 dated 27.3.1976 is

concerned, where a third party projected a claim, it is no doubt true that the buyer sent Ex.B.4 dated 22.4.1976 asking for clarification of the

doubt raised in Ex.B.11. To this are the replies Exs: B.5 and B.6. In Ex.B.5 it is clearly stated that the third party had no right whatsoever and in

Ex.B.6 the father denied having received a copy of Ex.B.11, It appears that the buyer had accepted the explanation offered in Ex.B.5. That is why

he had not adverted to that fact at all in his lawyer''s notice Ex.B.7 dated 20.6.1976. Even in the subsequent correspondence namely, Exs.B.9 and

B. 10 he has not projected that issue. Therefore it is clear to my mind the explanation offered under Ex.B.5 regarding the third party''s claim

appears to have been accepted by the buyer. What emerges from the above discussions is that the vendor under Ex.A.1 had performed his

obligation under that contract by making other vendors also join in execution of the sale deed in favour of the buyer or his nominee and the buyer

was also informed about such readiness and willingness on the part of the vendors. All these appear to have been there before the expiry of three

months fixed under Ex.A.1. For the first time the claim of the third party was projected only on 27.3.1976 by issuing Ex.B.11. Therefore it is clear

that from the date of execution of Ex.A.1 till 27.3.1976 the bail was in the Court of buyer to complete the sale. Nothing further remained to be

done by the vendors upto that time. There is absolutely no material whatsoever before the Court to even find out as to why the buyer did not get

the sale completed before 27.3.1976. In his oral evidence as D.W.1 the buyer would state that the vendors have not got income tax clearance

certificate as the consideration is high. He had also stated that the Urban Land (C&R) Act, Central Act of 34 of 1976 has come into force and

vendors have not got the ''no objection certificate''. It could be noticed here that the Central Act 34 of 1976 came into force only on 3.8.1976.

Again it is not clear as to why the buyer did not get the sale completed even after the claim of the third party was explained by the vendor under

Ex.A. 1 by issuing Ex.B.5. As already stated the buyer had accepted the explanations offered under Ex.B.5. Ex.B.5 is dated 14.5.1976. The

buyer had not taken any steps at all for having the sale completed from 14.5.1976 till the Act came into force on 3.8.1976. Nothing prevented him

from proceeding with and completing the sale before the Act came into force since the vendors have performed all that they have to do under the

agreement. For the first time under Ex.B.9 dated 27.10.1976 the buyer invited the attention of the vendors to the coming into force of the Central

Act 34 of 1976. Even thereafter he did not follow up the matter with all promptness and waited almost for one year and again issued Ex.B.10

dated 11.9.1979 asking for the action taken by the vendors in compliance to the Central Act 34 of 1976. Therefore there is no difficulty in holding

that there was total inaction and latches on the part of the buyer from the date of Ex.A.1 i.e., 18.7.1975 till 27.3.1976 when Ex.B.11 came to be

issued and again he is ''guilty of such conduct from the date of Ex.B.5 namely 14.5.1976 till 3.8.1976 on which date the Central Act 34 of 1976

came into force. This Act was in force till 17.5.1978 when the Tamil Nadu Urban Land (C&R) Act, 1978 came into force. u/s 25(1) of the

Central Act 34 of 1976 no transfer can be made except after giving notice in writing of the intended transfer to the Competent Authority. u/s 25(2)

of the Act the authority had the option to buy and if such option is not exercised within a period of 60 days from the date of receipt of the notice it

shall be presumed that the authority had no intention to buy such land and it shall be lawful for such person to transfer the land to whomsoever he

may like. Assuming that the Central Act 34 of 1976 is attracted to the case on hand the buyer after having sent Ex.B.9 dated 27.10.1976 requiring

compliance of the said Act could have followed it with all promptness if really he wag interested in buying the lands. The promptness in this aspect

also is found wanting on the part of the buyer. In any event the case of the buyer requiring compliance of Central Act 34 of 1976 or Tamil Nadu

Urban Land (C&R) Act, 1978 was not there when Ex.A.1 came into existence. It could not have been foreseen by the parties to Ex.A.1. Getting

the income tax clearance certificate is not the term of the contract entered into between the parties and therefore the buyer cannot take shelter

under the grounds referred to above to delay the completion of the sale.

I perused the oral evidence of D.W.1 also to find out whether he was ever ready and willing to perform his obligations under the contract of

sale and whether it was shown to be in existence continuously. As already noticed by me from the documentary evidence it is clear that the buyer

had not established his readiness and, willingness during the periods referred to above. Merely because in some of the notices sent on behalf of the

buyer it is mentioned that he was ready and willing to perform his part of the contract would not by itself established his readiness and willingness.

Besides such averments, the buyer should bring to the notice of the Court the factual materials available to establish such a stand. Apart from

stating in his pleadings about the encroachments having been removed and the compound wall having been put up, D.W.1 in his oral evidence also

admits that fact. But however he would state that the vendor under Ex.A.1 had not removed the encroachments hut it is only he who has done the

same. The evidence further shows that it took him nine months to remove the encroachments. This cannot be true for more than one reason. Under

the contract of sale the encroachment must be removed within three months by the vendor. If there is any failure on the part of the vendor then the

buyer had two options-the first option is that he can exclude the extent of the land occupied by the encroachers and buy the remaining lands free

from encroachments at the agreed rate and the second option is that he can take back the advance in cancellation of the agreement. The first

correspondence from the buyer after Ex.A.1 is Ex.B.4 dated 22.4.1976. Till that time there is nothing on record to show that the buyer had

complained to the vendors about their failure to remove the encroachments within the time mentioned in the contract. In his written statement in the

suit for possession he would state that the encroachment was removed and the entire site was available for completion of the sale transaction. I

have already referred to in the earlier portion of the judgment that the buyer had pleaded that in the year 1975 he has put up a compound wall and

appointed a watchman to guard the property. The putting up of the compound wall would arise only after removal of the encroachments

completely as otherwise there was no purpose behind it. In fact it is the term of the contract itself that only after the removal of the encroachments

the compound wall should be put up so as to prevent future encroachments. D.W.1''s oral evidence is that all the vendors had expressed their

willingness to execute the sale deed. If the context in which the evidence has come to be recorded is looked at, then it means that the consent was

after Exs.B.5 and B.6. But I have already found that even long before that time the buyer was put on notice about the same. But however for the

purpose of looking at the case from another angle, I assume for a moment that atleast some time after Exs.B.5 and B.6 (dated 14.5.1976 and

15.5.1976) the buyer had information that all the vendors have decided to execute the sale deed. In fact his suggestion to P.W.1 in his cross

examination is to the same effect'', namely only after issuing Exs.B.5 and B.6 the vendor under Ex.A.1 got the consent from other owners of the

property. So this time is taken as the starting point of limitation and on that day the Central Act 34 of 1976 was not in force and it having come into

force only on 3.8.1976, nothing prevented the buyer from completing the sale, especially when he had not chosen to place any reliance after

Exs.B.5 and B.6 on the claim of the third party. Only for the first time in his oral evidence recorded on 2.3.1993 he would state that the cloud on

title raised by the third party was not cleared. As I have already noticed after the receipt of Ex.B.5 dated 14.5.1976 where an answer is given in

regard to the claim of the third party till his oral evidence was recorded on 2.3.1993 the buyer had not raised that issue at all. The burden is on the

buyer not only to aware but also to prove that he has been ready and willing to perform his part of the contract, which is a common fact to bee

established by him in his suit for specific performance as well as in the other suit for possession filed against him. I carefully and meticulously

analysed the evidence of D.W.1 to find out whether he has established this fact. Though there is pleading in both the suit on his behalf yet I find that

neither by documentary evidence nor by oral evidence he had established that fact. To get the benefit of equitable relief in his suit for specific

performance and get the benefit of the passive equity provided u/s 53A of the Transfer of Property Act, a party who seeks those benefits should

prove the readiness and willingness on his part.

The suit for specific performance was filed by the buyer on 6.4.1987. Ex.B.10 dated 11.9.1977 is the last of the correspondence from the side

of the buyer to the vendors. The there was a total lull till 15.6.1979 on which day the vendors caused a lawyer''s notice to be issued to the buyer.

This was replied to by the buyer under Ex.B. 14 dated 5.7.1979. Ex.B.13 was issued on behalf of the vendor under Ex.A.1 and his father. Even in

this notice it is stated that though the father disowned any connection in the agreement of sale, yet he and the other co- parceners have been

advised to join hands and provide unanimous consent to any action, taken by the son (vendor under Ex.A.1) in dealing with the matter. The notice

further states that the father and the son have joined in issuing that notice in a representative character. It is further categorically stated in that notice

that the land owners have fulfilled all their obligations under the agreement and nothing further remained except to execute and register the sale

deed provided the buyer took steps for the same. The buyer''s obligation to pay the balance price; get ready the sale deed and make it available

for registration were also noted in that notice. The buyer was told in clear terms that though everything was cleared on behalf of the vendors, yet

since the buyer committed breach of contract and in the mean time the Central Act 34 of 1976 and the Tamil Nadu Act 24 of 1978 had come into

force (Both Urban Land (C&R) Acts), the vendors are no more interested in selling the property as getting exemption under the-Urban Land

Ceiling Act was not an easy proposition and that they are not prepared to that also for the sake of obliging a purchaser in default. This notice

terminated the contract. As already stated this met with the reply Ex.B.14 wherein it is stated that the buyer was ready and willing to complete the

transaction. It may be noticed here that subsequent to the issuance of Ex.B.13 two of the vendors also filed O.S.No. 5691 of 1979 for a

declaration that the agreement dated 18.7.1975 ceased to be in force. This, suit-was dismissed on 22.2.1982 and in the earlier part of this

judgment I have noted the filing of the appeal; the order of remand passed by the appellate Court; the order of remand being challenged before the

High Court by the buyer and the appeal against the order of remand itself being dismissed on 24.6.1987 and the suit itself was allowed to be

withdrawn with leave to file fresh soil resulting in filing of O.S.No. 68 of 1987. As already noticed the suit for specific performance has come to be

filed only on 6.4.1987 after much water had flown under the bridge from the date of Ex.B.13 dated 15.6.1979. Recognising the principle that time

is not normally the essence of the contract in the sale of the immovable property, the Honourable Supreme Court of India in the judgment reported

in Smt. Chand Rani (dead) by LRs. Vs. Smt. Kamal Rani (dead) by LRs., held that even if time is not the essence of the contract the Court may

infer that it is to be performed in a reasonable time. To the same effect is the following judgments of the Honourable Supreme Court of India,

namely

K.S. Vidyanadam and Others Vs. Vairavan, ; 2. K. Narendra Vs. Riviera Apartments (P) Ltd.,

In a judgment reported in V.C. Siddha Chetty and others v. Govindappa Naidu, 1996 TLNJ 358, it was held by a learned single Judge of this

Court that if really the agreement holder is ready and willing to perform his part of the contract as claimed by him one would expect him to file the

suit immediately or within a reasonable time after the receipt of the reply notice. Going by the law laid down, in the judgments above referred to it

cannot be said by any stretch of imagination that the suit filed on 6.4.1987 to specifically enforce a contract of sale dated 18.7.1975 could be

characterised as one filed by the buyer exercising his right under that contract within a reasonable time. I have already found that the bail was in the

Court of the buyer from 18.7.1975 till 27.3.1976 when for the first time a third party projected a claim under Ex.B.11 and from 14.5.1976 till

3.8.1976 when the Central Act 34 of 1976 came into force. There is absolutely no justifiable reason for the buyer for not completing the sale

during the periods above referred to. In fact in the suit for specific performance filed by him he would state as follows:

As the third party had not taken any steps except sending a notice, the plaintiff is now advised that he can ignore the cloud in title and get the sale

deed executed. This is on the strength of facts disclosed in proceedings arising out of O.S.No. 5691 of 1979.

The suit is not barred by limitation as the plaintiff is in possession pursuant to the agreement of sale and part payment and put up construction and

stationed watchmen providing him quarters in view of the suit in O.S.No. 5691 of 1979 on the file of the City Civil Court, Madras and further

proceeding therefrom.

Being in possession of the property, assuming he is in possession, may enure to his benefit to contend in a suit for possession filed by the

owners that he is in possession in part performance of the contract; that he has done some act in furtherance of the contract and that he is ready

and willing to perform the contract and thereby try to protect his possession. This plea of being in possession will not be available to him to save his

suit for specific performance from the law of limitation. Under Article 54 of the Limitation Act three years is prescribed as the time limit and it starts

to run from the date fixed for the performance of the contract or if no such date is fixed when the plaintiff has notice that performance is refused. In

this case admittedly a date is fixed namely three months from 18.7.1975 and therefore the time to file the suit on that contract started running from

the commencement of 18.10.1975. u/s 9 of the Limitation Act when once time has begun to run no subsequent disability or inability to institute a

suit or make an application would stop it. Assuming that the time of three months fixed under the contract was not really the time in the mind of the

parties and in fact the time would start running as against the buyer only when the vendors perform all their obligations under the contract of sale,

yet inasmuch as I have found that the vendors in this case have performed all their, obligations under the contract of sale within the period three

months itself, judgment reported in Lakshminarayana Reddiar Vs. Singaravelu Naicker and Another, , is of no help in this case. It is no doubt true

that in the suit for possession and in the written statement of the third defendant in the suit for specific performance there is an admission that the

vendors have adopted the agreement though they were not parties to it. Suit for possession was presented before court on 17.7.1987 and the

written statement of the third defendant in the other suit was filed on 7.8.1989. Relying on these two admissions the learned Senior Counsel would

contend that if at all the buyer had any knowledge about the others having adopted the agreement of sale it is only from the respective dates

referred to above and therefore the buyer would be entitled to file a suit for specific performance at any time thereafter. Since on facts I found that

the buyer had been told and had knowledge about the others also joining in the execution of the sale deed these circumstances relied upon by the

learned Senior Counsel really do not come in favour of the buyer. These admissions being subsequent events therefore the Court can allow

amendments by taking note of that is the submission of the learned Senior Counse for the buyer and for this purpose he relied upon the following

judgments:

Amritlal N. Shah Vs. Alla Annapurnamma, ; 2. K.S. Deenadayalu Reddy Vs. Lalithakumari, ; 3. Velammal and Others Vs. Chokkiah Gounder

and Others, .

In view of my finding on facts as rendered earlier that the Vendors have performed their obligations under the contract of sale the argument

advanced by the learned Senior Counsel on the subsequent events and the judgments relied upon by him in that regard are not attracted to the case

on hand. A learned single Judge of this court in the judgment reported in J. Vasantha v. M. Senguttuvan, 1997 (2) L.W 820., had held that even if

for a single day the plaintiff/agreement holder is not ready to take the sale deed the equitable remedy should not be granted and the readiness and

willingness must be there continuously from the date of the agreement upto the date of hearing. For all the reasons stated above I hold that the

buyer had not established his readiness and willingness to perform his obligations under the Contract of sale at any point of time and therefore he is

not entitled to the relief of specific performance. I also hold that as far as the vendors are concerned they have established by clinching evidence

that they have performed all the obligations that are expected of them under the contract of sale. I also hold that the suit in this case is hopelessly

barred by limitation.

Once on facts it is found that the buyer had not established his readiness and willingness to perform his part of the contract which would

disentitle him from having the equitable relief of specific performance, I am of the opinion that the same yardstick would equally apply to the

defence of the buyer based on Section 53A of the Transfer of Property Act. The Honourable Supreme Court of India in Mohan Lal (Deceased)

through his Lrs. Kachru and Others Vs. Mirza Abdul Gaffar and Another, , held that once the buyer lost his right under the agreement by dismissal

of the suit for specific performance it would be inconsistent and incompatible on his right to remain in possession under the agreement. In the case

on hand the buyer is not non-suited in his suit for specific performance only on the ground of limitation but he stands non suited on facts. Therefore

the judgment reported in Ekadashi Vs. Ganga and Others, , brought to my notice by the learned Senior Counsel for the buyer that even when a suit

for specific performance is dismissed on the point of limitation and that decree had become final, yet the said disposal cannot stand in the way of

the Court protecting the possession of the transferee u/s 53A of the Transfer of Property Act, is not attracted to the case on hand.

The next question that remains for consideration is whether the possession of the buyer can be traced to the contract on the principle of part

performance u/s 53A of the Transfer of Property Act. There is no dispute that Ex.A.1 evidences a contract to transfer for consideration of an

immovable property; it is signed by the contracting party and the terms of the contract are certain. The other owners have accepted this agreement.

Therefore the first limb of Section 53A of the Transfer of Property Act is established. The second limb is whether the transferee has in part

performance of the contract taken possession of the property or any part thereof and the third limb is the transferee has done some act in

furtherance of the contract. In Sardar Govindrao Mahadik and Another Vs. Devi Sahai and Others, , it was held as follows:

To qualify for the protection of the doctrine of part performance it must be shown that there is a contract to transfer for consideration immovable

property and the contract is evidenced by a writing signed by the person sought to be bound by it and from which the terms necessary to constitute

the transfer can be ascertained with reasonable certainty.

After establishing aforementioned circumstances it must be further shown that a transferee had in part performance of the contract either taken

possession of the property or any part thereof..... .. and has done some act in furtherance of the contract. There must be a real nexus between the

contract and acts done in pursuance of the contract Or in furtherance of the contract and must be unequivocally referable to the contract

Anything done in furtherance of the contract postulates the pre-existing contract and acts done in furtherance thereon. Therefore the acts anterior

to the contract or merely incidental to the contract would hardly provide any evidence on part performance.

There is an understandable and noteworthy difference in the probative value of entering into possession for the first time and continuing in

possession with a claim of change in character.

In Ex.A.1 there is no recital that the transferee is put in possession of the property and it is also not the case of either of the parties. However

clause 7 of the contract reads as follows:

The party of the second part shall put up a compound wall around the land agreed to be sold as soon as the huts are, removed so as to prevent

any further encroachment and the party of the first part shall be under no obligation to get any hut dewellers vacated if such encroachment takes

place after the removal of the huts at present existing on the land.

The party of the second part is the buyer and the party of the first part is the owner. There is also no dispute in this case that the encroachments

have been removed. There is also no. dispute in this case that the buyer had put up a compound wall encircling the property. It is in evidence that

the buyer had appointed a watchman. Though there is a pleading on behalf of the owners that they have also employed a watchman, yet P.W.1 in

his oral evidence would state that they have not appointed any watchman. It is also true that apart from constructing a compound wall the buyer

had put up a number of other constructions inside the encircled area of the property. Of-course the buyer had no authority to put up those

constructions and his plea and evidence that he had put up the same with the knowledge of the owner is not at all impressive, substantiated and

therefore rejected. There me no materials on record to show that the vendors have acquicised in any manner in the conduct of the buyer in putting

up those constructions. Applying my mind to the facts available I am in entire agreement with Mr. R. Alagar, learned Senior Counsel that though

the transferee was not given possession of the property agreed to be conveyed to him under the contract itself, yet he had taken possession of the

property atleast when he was authorised to put up the compound wall. Under the contract it is the duty of the buyer to prevent future

encroachment after putting up the compound wall. Therefore unless the buyer is in possession of the property, he cannot effectively prevent

encroachments. The act of putting up a compound wall and the act of preventing future encroachments are acts referable to the contract; Under

these circumstances I have no difficulty in holding that the buyer is in possession of the property in part performance of the contract and therefore I

disagree with the finding of the learned trial Judge on this issue holding that the buyer is not in possession. I have already found on facts that the

buyer was never ready and willing to perform his part of the contract and therefore he is disentitled to get any relief based on his possession.

The transferee seeking protection u/s 53A of the Transfer of Property Act must establish that either he has performed or he is willing to

perform his part of the contract. This is the fourth limb of Section 53A of the Transfer of Property Act. It is not the case of the buyer here that as a

transferee he has performed his part. Therefore that opinion is out of consideration. The remaining ingredient is the willingness to perform the

contract. I have already held that the buyer in this case had not established by any evidence that he was ready and willing to perform the contract.

However assuming for a moment without, admitting that he is ready and willing, to perform his part of the contract evan then to get the protection

u/s 53A of the Transfer of Property Act he must show that there is complete willingness so, far as he is concerned. In Bechardas v. Ahmedabad

Municipality, AIR 1941 Bom 346, it has been held as follows:

The principal difficulty which the plaintiff municipality seeking to rely on the section had to get over is cl.3 which makes it a condition that the

transferee has performed or is wining to perform his part of the contract. Leaving aside for thee moment the question whether this section is only

enacted for the protection of the transferee and confers no rights on the transferor, it is obvious both from the language and also from the history of

this enactment that it is primarily intended for the benefit of the transferee and that being so, when the section speaks of the performance of his part

or willingness to perform his part, it must mean in our opinion complete performance or complete willingness so far as he is concerned.

Otherwise there would be no reason why the transferor should be confined within the four comers of the contract. We quite unable to accept the

argument of the learned advocate for the respondent that it is a sufficient compliance with this condition that the transferee should have performed

his part of the contract to some extent. It is true that B.J. Wadia, J., in Suleman v. Patell, 35 Bom LR 722, has taken this view, but with all

deference to the learned Jadge we are unable to agree .

The facts available in the case in Smt. Chand Rani (dead) by LRs. Vs. Smt. Kamal Rani (dead) by LRs., , are as follows:

The suit for specific performances was decreed by the trial Judge holding that one of the clauses i.e., payment of Rs. 98,000 by 6.9.1971 was not

the essence of the contract. However in the appeal the High Court reversed the holding that the non payment of Rs.98,000 by 6.9.1971 is fatal.

thereafter the matter came up before the Supreme Court. In the context of those facts the Honourable Judge held as follows:

The analysis of evidence would also point out that the plaintiff was not willing to pay this amount unless vacant delivery of possesion of one room

on the ground floor was given. In cross-examination it was deposed that since income tax clearance certificate had not been obtained the, sum of

Rs,98,000 was not paid. Unless the property was redeemed the payment would not be made. If this was the attitude it is clear that the plaintiff was

insisting upon delivery of the possession as a condition precedent for making this payment. The Income Tax certificate was necessary only for

completion of sale. We are unable to see how these obligations on the part of the defendant could be insisted upon for payment of Rs.98,000

The crux of the above referred to judgment is that the payment of Rs.98,000 was not dependant upon the vendor getting the income tax clearance

certificate and that it would be necessary only for completing the sale. Therefore the buyer insisting for income tax clearance certificate for making

the payment of Rs.98,000 was found to be acting contrary to the contract and therefore the High Court was justified in refusing the equitable relief

for specific performance. In Jacobs Private Limited Vs. Thomas Jacob, , the learned Judges held as follows:

Section 53A makes it clear by employing the word ''then'' after laying down the prerequisites that a transferee seek refuge under it Only after

satisfying prerequisites. In other words the bar envisaged in the section against the enforcement of the transferor''s right can be exercised only on

compliance with postulates. Willingness to perform the roles ascribed to a party in a contrast primarily a mental disposition. However, such

willingness in the context of Section 53A of the T.P. 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. Where the vendee Company expresses its willingness to pay the amount provided the

plaintiff to pay me amount provided the plaintiff clears his Income Tax arrears, there is no complete willingness but a conditional willingness or

partial willingness which is not sufficient to arm the company with the shield provided by Section 53A of the T.P. Act.

The learned Judges referred to the judgment of the Honourable Supreme Court of India in Smt. Chand Rani (dead) by LRs. Vs. Smt. Kamal Rani

(dead) by LRs., and understood it stating that as the purchaser in that case insisted on obtaining an income tax clearance certificate for making

payment of balance sale consideration, the Supreme Court pointed out that since such a condition was not covered by the contract the purchaser

cannot claim the equitable relief. The sum and substance of the three judgments referred to above in the context of willingness on the part of the

transferee u/s 53A of the Transfer of Property Act is that willingness on the part of the transferee must be complete, wholesome and unconditional.

In this case the learned Senior Counsel arguing for the buyer would contend that express consent of the vendors is necessary. This is not a

requirement covered under the contract. Likewise the requirement of getting a ''no objection certificate'' under the Central Act 34 of 1976 was not

a requirement in the contract as on the date of the contract the Act was not in force at all. Under the Central Act 34 of 1976 there is no total

prohibition of transfer. Section 25 of that Act only contemplated an advance notice in writing before the intended transfer. Under the Tamil Nadu

Act, there is a total prohibition of transfer. However it may be noted here that the buyer never placed his case at any stage when the suits were

pending before the trial Court under the Tamil Nadu Urban Land (C&R) Act. The reliance placed on the judgment of this Court in Manjini Vs.

Rajakumari, by the learned Senior Counsel for the buyer are not attracted to the case on hand on facts. The contention of the learned Senior

Counsel that the above quoted judgment would have the impact of totally disabling the agreement holder from filing the suit for specific

performance does not appear to be correct. In view of the overwhelming materials available in this case which established beyond boubt that the

buyer was never ready and willing to perform his obligation under the contract and that being one of the basic requirements to be established to

enable the transferee to protect his possession, I am of the considered opinion that though the transferee has been put in possession of the property

in part performance of the contract of sale, yet he is not entitled to the protection afforded to a transferee u/s 53A of the Transfer of Property Act.

Consequently the owners of the land are entitled to the reliefs they have prayed for in their suit. No argument whatsoever had been advanced

before this Court by either of the parties on the quantum of mesne profits both past and future, decreed. In view of my discussions above I am of

the respectful opinion that the judgment reported in Sheth Maneklal Mansukhbhai Vs. Hormusji Jamshedji Ginwalla and Sons, , Baruna Giri and

Others Vs. Rajakishore Giri and Others, ; Chaman Lal Vs. Surinder Kumari, , really do not apply to me case on hand on facts.

For all the reasons stated above I find that there are no merits in both the appeals. Accordingly they are dismissed with costs.