Smt. Balbir Kaur vs Joginder Singh and Others

Harphul Singh Brar, J.—This is an appeal against the judgment/and decree dated 18.11.1992 of the learned Sub Judge Ist Class, Rajpura vide which the suit of the plaintiffs for possession by way of specific performance of the agreement to sell dated 2.9.1988 was decreed.

Briefly stated the facts as mentioned in the plaint are that defendant Balbir Kaur had executed an agreement to sell agricultural land measuring 73 bighas 17 biswas as described in the head-note of the plaint on 2.9.1988. She had received Rs. 40,000/- in advance as earnest money from the plaintiffs at the time of execution of the agreement to sell. Balbir Kaur defendant had agreed to get the sale deed executed and registered in favour of the plaintiffs as per terms of the agreement upto 15.5.1989. According to the terms of the agreement, it was promised that after getting the mutation attested on the basis of map Eri (popularly known in this part of the country as ''Naksha Jeem''), registered sale deed shall be executed and registered in favour of the plaintiffs on or before 15.5.1989. Map Eri had already been prepared as has been mentioned in the agreement to sell dated 2.9.1988. Partition proceedings with the other co-sharers of the land of the defendant were pending in the Court of Assistant Collector Ist Grade, Rajpura.

That the partition of the land in dispute belonging to the defendant with other co-sharers has been finalised and the defendant was bound to specifically perform the part of the contract upto 15.5.1989 and to get the sale deed executed and registered and deliver the possession of the disputed land to the plaintiffs. That the plaintiffs had come to the office of the Sub-Registrar, Rajpura on 15.5.1989 at 9 a.m. with the remaining sale consideration amounting to Rs. 6,98,500/- and the expenses for the execution and registration of the sale deed amounting to Rs. 1,12,000/- and waited for the defendant upto 5 p.m.; but the defendant did not turn up and as such the plaintiffs got their affidavit attested from the Executive Magistrate, Rajpura who was also the Sub-Registrar.

That the plaintiffs had always been ready and willing to perform their part of contract and are still ready and willing to get the sale deed executed and registered in terms of the agreement to sell dated 2.9.1988 on payment of the remaining sale consideration but the intention of the defendant has become mala fide due to the rise in the prices of the land. In these circumstances, the plaintiffs were compelled to file a suit for possession by way of specific performance of the agreement to sell dated 2.9.1988.

On notice, the defendant appeared and filed the written statement wherein she pleaded that it was correct that she had executed an agreement to sell dated 2.9.1988 in favour of the respondents and received Rs. 40,000/- in advance. She pleaded in the written statement that the partition proceedings regarding some of the suit land had started on 2.9.1988. Plan Eri had not been prepared till the date of execution of the agreement to sell. It was only prepared on 8.9.1988. Against the aforesaid plan Eri, two appeals have been filed by the other co-sharers and plan Eri is still under challenge before the Appellate Court. It is mentioned in the written statement that it was wrongly stated in the agreement to sell that the plan Eri had already been prepared. As such the agreement is void and the agreement was a contingent contract and the condition of the agreement was that the defendant would transfer the land after getting the mutation sanctioned in her name according to plan Eri. The mutation could only be sanctioned in favour of the parties after the partition proceedings had been finally decided and the cause of action would arise to the plaintiffs only if the plan Eri, an instrument of partition was prepared. No mutation has been sanctioned as yet and as such the present suit does not lie. As the condition for execution of the sale deed had not materialised, how the defendant could go to the registrar for registration of the sale deed. It is further stated in the written statement that the plaintiffs had no cause of action for registration of the sale deed, nor they had approached the defendant for the same. If the plaintiffs had come to the defendant, she would have told them that the partition proceedings were still pending and no mutation was sanctioned. It is also termed as wrong that the plaintiffs had gone to the office of the Sub-Registrar as alleged by them.

Replication was filed by the plaintiffs wherein they had dented the averments made in the written statement and affirmed the averments made in the plaint. On the pleadings of the parties, following issues were framed :-

Whether the defendant had not agreed to sell her

Clausejoint share in the suit land? OPD

Whether the agreement entered into between the parties

Clausewas a contingent contract? If so to what effect? OPD

Whether the agreement entered into between the partiesClauseis unlawful and is hit by Section 23 of the Indian Contract Act? OPD

What is the effect of non-compliance of the partitionClauseproceedings regarding the suit land? OPD

Whether the plaintiffs always remained ready and willingClauseto perform their part of the contract? OPD

Whether the plaintiffs are entitled to the specific performanceClauseof the agreement? OPP

If issue No.5 is not proved how much amount the plaintiffsClause are entitled to recover from the defendant in the alternative? OPP

Relief.

Heard.

Issue Nos. 1 to 6 have rightly been decided by the trial Court in favour of the plaintiffs and against the defendant. Execution of agreement to sell Ex.P.2. by the defendant Balbir Kaur in favour of the plaintiffs and the receipt of Rs. 40,000/- as earnest money has been admitted by the defendant Balbir Kaur in her written statement. It has been clearly stated in the agreement to sell Ex. P2 that plan Eri in respect of the partition of the land in dispute has been prepared. It has further been specifically mentioned in the agreement to sell Ex. P2 that the defendant shall get the mutation of the land attested on the basis of plan Eri.

The defence taken by the defendant in her written statement that it was wrongly stated in the agreement to sell Ex. P2 that plan Eri had already been prepared is without any force. As has already been stated above, it has been clearly stated in the agreement to sell without any ambiguity that the plan Erf had already been prepared. Moreover, there is no evidence produced by the defendant which could show that the plan Eri was not in existence at the time of the agreement to sell Ex. P.2. The instrument of partition is dated 8.9.1988. A copy of the plan Eri is Ex. P6. In the instrument of partition, it is specifically mentioned that the partition is sanctioned in accordance with the plan Eri which clearly demonstrates the fact that the plan Eri had been prepared prior to the sanctioning of partition on 8.9.1988. Thus, the stand taken by the defendant that on the date of execution of the agreement to sell, the plan Eri had not been prepared and the recital in the agreement in this regard was wrong, is without any merit.

Next comes the sanction of mutation. It was undertaken by the defendant in her agreement with the plaintiffs that she would get the mutation sanctioned on the-basis of the plan Eri but she did not produce any evidence which could show that she had taken steps to get the mutation sanctioned on the basis of the plan Eri. If she had not taken that step, may be due to the rise in the prices of the land, as has been alleged by the plaintiffs, it does not give her a right to resile from the agreement to sell Ex.P2 executed by her in favour of the plaintiffs. It has rightly been held by the trial Court that the agreement to sell in hand is not a contingent contract of the type where non-fulfilment of the condition mentioned in the agreement would render un-enforceable or void. The inaction of the defendant in not getting the mutation sanctioned on the basis of the plan Eri and when undisputedly, there was no obstacle in her way by way of a stay of any court or due to some other valid cause to get the mutation sanctioned in accordance with the plan Eri, does not debar the plaintiffs to get the relief from the Civil Court for enforcement of the agreement to sell Ex.P2 against the defendant.

Learned counsel for the appellant-defendant has contended that the plaintiffs had not always been ready and willing to perform their part of contract and they were not having sufficient amount to pay the balance sale consideration to the defendant on the date fixed for the execution of the sale deed. To substantiate this argument, the learned counsel has pointed out that Mohinder Singh plaintiff (P.W.7) in his cross-examination has stated that they withdrew the amount of balance sale consideration on 13.5.1989 but no evidence has been led to prove the fact that they withdrew the above said amount on that date from the bank. He further contends that from the statement of P.W.8 Fakir Chand, Clerk-cum-Cashier, Punjab National Bank, Ambala, it is evident that on 13.5,1989, the amount stated to have been withdrawn by the plaintiffs or anyone-else is not proved.

On the other hand, learned counsel for the respondent-plaintiffs submits that the expression ''readiness and willingness'' cannot be treated in a straight jacket formula and it has to be determined on the basis of the totality of the facts and circumstances of the case and from the conduct of the parties as to whether the plaintiffs were ready and willing to perform their part of the contract or not. He submits that it is amply proved on the record that the plaintiffs were willing and ready to perform their part of the contract. He brought to the notice of the Court the statement of P.W.8 Fakir Chand, Clerk-cum-Cashier, Punjab National Bank, Ambala from where it is proved that on 14,5.1989, an amount of Rs. 7,49,700/- was deposited in the account of Mohan Singh and Mohinder Singh through F.D. It has further been stated by that witness that on 24.5.1989, an amount of Rs. 1 lac was also deposited in the account of Mohinder Singh. The learned counsel submits that from the statement of this witness, it does not stand proved that on 3.5.1989, the plaintiffs withdrew the amount of Rs. 8-1/2 lacs from the bank as stated by P.W.7 Mohinder Singh but nevertheless from the testimony of the above said witness, it is evident that on the relevant date, the plaintiffs were in a position to pay the balance sale consideration to the defendant and to meet the expenses of stamp duty and registration in case the defendant had been ready and willing to perform her part of the contract.

After hearing the learned counsel, I find from the evidence on the file that the plaintiffs were willing and ready to perform their part of the contract. Readiness and willingness cannot be treated as straight-jacket formula. These have to be determined from the entirety of the facts and circumstances relevant to the intention and conduct of the parties concerned and it has to be determined from the totality of the facts and circumstances and the conduct of the parties as to whether the plaintiffs were ready and willing to perform their part of the contract. It was never the case of the defendant that she was ready and willing to perform her part of the contract and the plaintiffs were not willing to do so. In para-7 of the plaint, the plaintiffs have specifically pleaded that they had always been ready and willing to perform their part of the contract and are still ready and willing to perform their part of the contract and to get the sale deed executed and registered in terms of the agreement to sell dated 2.9.1988 Ex.P2 on payment of the remaining sale consideration. In the corresponding para of the written statement, the defendant has pleaded that the plaintiffs have no cause of action for registration of the sale deed nor they even approached the defendant for the same and if they would have even approached the defendant, she would have told the plaintiffs that the partition proceedings are still pending and no mutation was sanctioned. Thus, according to these averments, even if the plaintiffs had approached the defendant for execution of the sale deed, the defendant would not have executed the same on the ground that the partition proceedings were still pending and no mutation was sanctioned and thus she could not get the sale deed executed and registered.

The defendant Balbir Kaur as D.W.I has stated in her cross-examination at the trial that she was not ready to execute the sale deed in accordance with the agreement in dispute as she had not obtained the possession of the Khasra numbers which fell to her share. It is thus evident from the evidence on the file that the defendant was not ready to execute the sale deed in favour of the plaintiffs in accordance with the agreement in dispute..

On the other hand, P.W.7 Mohinder Singh plaintiff in his statement at the trial has clearly stated that the sale deed was to be executed on 15.5.1989; and on 15.5.1989 at 9 a.m., he attended the office of the Sub-Registrar with Rs. 8-1/2 lacs and they remained present till 5 p.m. but Balbir Kaur defendant did not turn up at all on that date. He further stated that they even got the affidavit attested from Sub-Registrar on that date to mark their presence. He further stated that they had always been ready and willing and are still ready and willing to get the sale deed executed. It is then proved from the statement of P.W.8 Fakir Chand, Clerk-cum-Cashier, Punjab National Bank, Ambala that on 24.5.1989, an amount of Rs. 7,49,700/- was deposited in the account of Mohan Singh and Mohinder Singh through F.D. He further stated that on 24,5.1989, an amount of Rs. 1 lac was already deposited in the account of Mohinder Singh. It lias thus become clear from the evidence on the file that the plaintiffs were in a position to pay the balance sale consideration to the defendant and to meet the expenses of stamp duty and registration in case the defendant had been ready and willing to perform her part of the contract.

Section 16 of the Specific Relief Act, 1963 does not require that the plaintiff must plead that he tendered the amount to the defendant and called upon him to perform Ms part of the contract, but he is required to plead and prove only that he had been and was ready and willing to perform his part of the agreement'' and to purchase the land. From the evidence on the record, I find that the plaintiffs had pleaded the requisite ingredients of Section 16 of the Act. If any authority is needed for the same, Jaswant Singh Vs. Karam Singh, is the one.

Thus, from the evidence produced in the case, it is proved that the plaintiffs were ready and willing to perform their part of the contract at the relevant time i.e. as contemplated under the contract as well as at the time of filling the suit.

Consequently, the plaintiffs are held entitled to the specific performance of the agreement in dispute. The judgment of the trial Court on all these issues is, thus, affirmed. The judgment of the trial Court on issue No.3 is also affirmed. This issue was not pressed by the learned counsel for the defendant at the time of the argument before the trial Court. Even otherwise, I do not find any valid ground to hold that the agreement in dispute is unlawful and hit by Section 23 of the Indian Contract Act in any manner.

Under issue No.7, in view of my finding above, I hold that the plaintiffs are entitled to specific performance of the agreement in dispute and as such the question of the plaintiffs being entitled to recover any amount from the defendant in the alternative does not arise.

Consequently, the judgment and decree of the learned Sub Judge Ist Class, Rajpura dated 18.1.1992 is affirmed and the appeal is dismissed with costs. If the judgment/decree of the Sub Judge Ist Class, Rajpura dated 18.1.1992 is not executed so far, then the direction is given that the plaintiffs shall deposit the amount of balance sale consideration in Court within a period of two months. After the deposit of the balance sale consideration by the plaintiffs in Court, the defendant shall get the sale deed in respect of the above said disputed land executed and registered in their favour. In case the plaintiffs fail to deposit the remaining sale consideration in Court within the time fixed above, the suit shall stand dismissed.