- (1.) DILIP Gupta, J. The plaintiffs have filed this Second Appeal for setting aside the judgment and decree passed by the learned Additional District Judge, Agra by which the Civil Appeal that had been filed by them was dismissed.
(2.) THE plea that had been taken in the Original Suit was the usual plea that has time and again engaged the attention of the Courts. It was alleged that the deed dated 12th July, 1956 (Ext. 2, Paper No. 31-C) was an ostensible sale deed that had been executed by Haji Abdul Sattar in favour of Bhorey Ram Lal only for the purposes of securing the loan of Rs. 30,000that he had taken from Bhorey Ram Lal and that Bhorey Ram Lal had also executed a separate agreement dated 12th July, 1956 (Ext. 1, Paper No. I4-C) to reconvey the said property in favour of Haji Abdul Sattar within 20 years on certain terms and conditions; that Haji Abdul Sattar died on 29th October, 1958 leaving behind the plaintiffs and proforma defendants as the legal heirs and representatives who were entitled to get the suit property reconveyed in their favour but after the death of Bhorey Ram Lal, his heirs executed a sale deed in December, 1958 in favour of Sardar Kuldeep Singh and Gurdeep Singh (defendant Nos. 1 and 2); that the plaintiffs and the proforma defendants had been requesting defendant Nos. 1 and 2 to reconvey the property in their favour but that was not done and in fact defendant Nos. 1 and 2 even filed suits for cancellation of the reconveyance deed which were ultimately dismissed and that the plaintiffs and the proforma defendants had always been and were ready and willing to perform their part of the contract but defendant Nos. 1 and 2 were not ready to perform their part of the contract. Ultimately, after serving the registered notice dated 13th October, 1977 upon defendant Nos. 1 and 2, the suit was filed for specific performance of the reconveyance contract executed on dated 12th July, 1956 by Bhorey Ram Lal in favour of Haji Abdul Sattar. In the written statement filed by Kuldeep Singh (defendant No. 2), the plea of ostensible sale to secure the loan was denied and it was stated that Haji Abdul Sattar had sold the property for a consideration of Rs. 30,000to Bhorey Ram Lal through the registered deed to pay his debts and to meet his other requirements. It was also stated that the subsequent deed executed by Bhorey Ram Lal on 12th July, 1956 for reconveyance of the property on payment of Rs. 30. 000 within a period of 20 years contained a specific clause that Haji Abdul Sattar or his successors in interest shall regularly pay Rs. 120 per annum to Bhorey Ram Lal or his successors in interest towards the repairs of the property and if there was a default in such payment for a continuous period of five years, then the right to get the property reconveyed would stand extinguished and the agreement would also stand repudiated. It was stated that as the said payment was not made, the reconveyance agreement stood repudiated and even otherwise the plaintiffs and the proforma defendants were never ready and willing to perform their part of the contract as even the notice to execute the sale deed was given by them after the expiry of the period of 20 years stipulated in the reconveyance deed. On the pleadings of the parties, the Trial Court framed following issues : " (1) Whether Haji Abdul Sattar borrowed Rs. 30,000 from Bhorey Ram Lal and executed the sale deed dated 12. 7. 1956 in his favour to secure the amount? (2)Whether there was an agreement to reconvey the property? If so what was the amount which was payable under the agreement of reconveyance by Shri Abdul Sattar to Bhorey Ram Lal? (3)Whether the plaintiffs or their predecessor in interest have fulfilled the terms of the agreement of reconveyance? If so, is there any breach? (4)What is the effect of the non-payment of Rs. 120 per annum by the plaintiffs or their predecessor in interest to Bhorey Ram Lal or the contesting defendants? (5)Whether the condition to pay Rs. 120 is void? (6)Whether the plaintiffs are liable to pay only Rs. 3000 as the amount of sale consideration? (7)Whether there is any subsisting agreement between the parties? If so, whether the plaintiffs are entitled to get it specifically enforced? (8)Whether the plaintiffs had or have been ready and willing to perform their part of the contract? If not its effect? (9)Whether the plaintiffs are entitled to claim any damages from the contesting defendants? (10)To what relief, if any, are the plaintiffs entitled?"
(3.) THE Trial Court recorded a finding that the sale deed that had been executed by Haji Abdul Sattar in favour of Bhorey Ram Lal for a consideration of Rs. 30. 000 was not for securing the alleged loan; that the reconveyance deed had been executed for Rs. 30. 000 and not Rs. 3000; that the term of the agreement of reconveyance under which Abdul Sattar was required to pay Rs. 120 per annum continuously to Bhorey Ram Lal towards the repairs of the property had not been complied with; that the condition of payment of Rs. 120 per annum towards repairs was not void and that the plaintiffs had neither been and nor were ready and willing to perform their part of the contract and that the notice dated 13th October, 1977 was given by the plaintiffs for execution of the reconveyance deed after the expiry of 20 years period stipulated in the agreement. THE plaintiffs were, therefore, held not entitled to any relief of specific performance of contract and the suit was dismissed. The plaintiffs filed a Civil Appeal. The lower appellate Court framed the following four points for consideration : " (1) Whether the sale deed dated 12th July, 1956 and the reconveyance deed dated 12th July, 1956 constituted mortgage by conditional sale? (2)Whether time was the essence of the contract under the reconveyance deed? (3)Whether Haji Abdul Sattar abdicated the clause in the reconveyance deed that required him to pay Rs. 120 per annum to Bhorey Ram Lal to wards repairs of the property or whether the said clause in the reconveyance deed was penal in nature? (4)Whether the plaintiffs had and were ready and willing to perform their part of the contract under the reconveyance deed?";