Bharucha, J. - (1.) This appeal stands referred to a Bench of three-Judges because the two learned Judges who heard it earlier found difficulty in following the judgment of a Bench of two learned Judges in Jugraj Singh v. Labh Singh, (1995) 2 SCC 31.
(2.) It is not necessary to go into any great detail insofar as the facts are concerned. The appellants before us are the legal representatives of a subsequent purchaser of certain property. They were defendants to a suit by one Bachna for specific performance of an earlier agreement to sell that property to her. She had not pleaded in her plaint that she was ready and willing to perform her part of the agreement, but that plea was later introduced by way of an amendment. The question now is in regard to whether she or her legal representatives were, in fact, at all material times ready and willing to perform their part of that agreement. The first appellate Court declined to permit the present appellants to plead and contend that Bachna and her legal representatives were never prepared to perform their part of the agreement and, for this purpose, it relied upon the judgment of this Court in the case of Jugraj Singh. The High Court, in second appeal, affirmed that view.
(3.) In Jugraj Singh's case (supra) upon substantially similar facts, this Court noted Section 16(c) of the Specific Relief Act and the dictum of the Privy Council in Ardeshir H. Mama v. Flora Sassoon, 55 Ind App 360 that in a suit for specific performance the averment of readiness and willingness on the plaintiff's part, upto the date of the decree, was necessary. It also noted that this Court in Gomathinayagam Pillai v. Palaniswami Nadar, (1967) 1 SCR 227 had held that it was for the plaintiff in a suit for specific performance "to establish that he was, since the date of the contract, continuously ready and willing to perform his part of the contract. If he fails to do so, his claim for specific performance must fail." Jugraj Singh's case (supra) (Para 5), however, held: "That plea is specifically available to the vendor/defendant. It is personal to him. The subsequent purchasers have got only the right to defend their purchase on the premise that they have no prior knowledge of the agreement of sale with the plaintiff. They are bona fide purchasers for valuable consideration. Though they are necessary parties to the suit, since any decree obtained by the plaintiff would be binding on the subsequent purchasers, the plea that the plaintiff must always be ready and willing to perform his part of the contract must be available only to the vendor or his legal representatives, but not to the subsequent purchasers." ;