SHINGHAL, J. - (1.) THIS second appeal of the defendant is directed against the appellate judgment and decree of District Judge, Pratabgarh, dated August 11,1666 in a suit for specific performance of a contract for the sale of immoveable property situated in Pratabgarh.
(2.) PHEROZSHAH Fardoonji, the husband of the defendant Smt. Dhanbai admittedly died on December 23, 1956 leaving the defendant and their daughter Smt. Zarbai as bis heirs. It seems that he owned plots Nos. 450 and 451, including a petrol godown, in Pratabgarh. Plaintiff PHEROZSHAH is also a resident of Pratabgarh On December 23, 1958, on the second anniversary of the death of the defendant's husband, there was a contract between the plaintiff and "Perozshah Rustamji & Sons" for the sale of the suit land for Rs. 3,501/- in terms of document Ex. 1 executed by the defendant. The defendant received an advance payment of Rs. 101/-frorn the plaintiff and specifically stated in Ex. 1 that she would get the sale deed registered within two days. She further stated that she and her children will have no objection to the sale and that if any objection was raised, she herself would be personally responsible to her children. Then it was stated that "from today onwards the right, title and interest in property will pass in you that is Ferozshah Rustamji & Son." The document was written by Shri Basant Lal Jain P.W. 4, who was a local advocate. The plaintiff raised the present suit on October 18, 1960, alleging that the defendant put him in possession of the suit property, and that he stopped paying the rent to her but that she did not execute the sale deed within the stipulated period of two days. The plaintiff stated in paragraph 2 of the plaint that inspite of his reminder and demand, the sale deed was not executed and that, on the other hand, the defendant gave him a notice on February 3, 1959 refusing to do so. He sent a reply to that notice on February 7, 1959, informing the defendant that if she would not atonce execute the sale deed after registering it and take Rs. 3,400/- from him, proper action would be taken against her. February 8. 1959, was stated to be the date on which the cause of action for the suit arose to the plaintiff. It was further stated in the plaint that Smt. Zarbai T. Marfatia, the daughter of the defendant, filed a suit for cancellation of document Ex. 1, but it was dismissed on August 18, 1960. Thereafter the plaintiff instituted the present suit claiming that he was entitled to get the sale deed executed and registered on payment of Rs. 3,400/-. He prayed for a decree for the execution of the sale deed and for the payment of Rs. 3,400/- to the defendant. He also prayed for a declaration that he was in possession of the suit property as its owner, and that the defendant had no right to interfere with it. The defendant filed a written statement stating that she was not the only owner of the suit property and that her daughter Smt. Zarbai T. Marfatia was a co-owner. She contended that letters of administration or any other certificate had not been obtained in respect of the property under the Indian Succession Act and that it was therefore a point for consideration as to who were its owners. The defendant admitted the execution of document Ex 1, but pleaded that it was executed in favour of Ferozshah Rustam, & Son, and that it was obtained from her by undue influence because she was a widow and was overwhelmed with grief on the date of execution of the document as it happened to be the second anniversary of her husband's death. According to her, she could not obtain independent opinion about the execution of Ex. 1 and the document was obtained by misrepresentation and coercion even though the property was worth at least Rs. 10,000/- at that time. She pleaded that when she refused to accept Rs. 101/-, the plaintiff threw it without her consent and went away. She then consulted her relations, sought advice from others and gave notice Ex. 2 to the plaintiff. The defendant also took the plea that as the right, title and interest in the land was transferred to the plaintiff by document Ex.1 which was not a registered document it was not admissible in evidence. Then a specific plea was taken that as the document was in favour of "Ferozshah Rustamji & Son" the plaintiff alone was not entitled to institute the suit which should be dismissed for nonjoinder of a necessary party. The defendant, however, denied the claim that the plaintiff was put in possession of the suit property by document Ex. 1. She also denied that he had any cause of action for the suit. The plaintiff filed a written statement under O. 8, r. 9 C.P.C. on March 13, 1956 stating that document Ex. 1 was obtained by him and that the agreement was made only with him. His son was not present at that time and there was no business entity of the name of Ferozshah & Son. He clarified that the words "& Son" were written so thai his son may be his only heir after his death. On this basis, the plaintiff pleaded that his son was not a necessary party to the suit. He further pleaded; that the defendant engaged Shri Basantlal Jain as her counsel in the dispute with the Municipality in respect of the suit land, and that the land was released by the Municipality. It was thus pleaded that the defendant had availed of the independent advice of her counsel when she executed document Ex. 1 on receipt of Rs.101/-from the plaintiff and promised to execute the sale deed within two days "after bringing the stamp," The plaintiff denied the allegations regarding undue influence, coercion and mis-representation. He also denied that Smt Zarbai had anything to do with the property or was a necessary party to the suit. According to him the value of the property on the date of the agreement was not more than Rs. 3,000/-or Rs. 3,500/-. The trial court framed 13 issues, and decreed the suit. The defendant preferred an appeal to the District Judge of Pratabgarh. That learned Judge partly allowed the appeal by directing that the decree for specific performance would be confined to the defendant's share in the suit property on payment of Rs. 3,400/-. As the rest of the appeal was dismissed, the defendant has preferred the present second appeal. It has been argued by Mr. Bachawat, learned counsel for the defendant-appellant, that learned Judge of the lower appellate court committed a substantial error of law in not dismissing the suit even though the plaint did not disclose a cause of action inasmuch as it did not contain an averment regarding the plaintiff's readiness and willingness to perform his part of the contract. On the other hand, Mr. Gupta, learned counsel for the plaintiff-respondent, has pointed out that no such plea was taken in the written statement and there was no issue in respect of it so that it could not be raised for consideration at all. In the alternative, Mr. Gupta has argued that the averment about the plaintiff's readiness and willingness to perform his part of the contract was a condition precedent to the maintainability of the suit and should be implied under O. 6 r. 6 C. P. C. This is therefore the first point for consideration in this appeal. As I shall show in a while, it is an essential requirement of a suit for the specific performance of a contract for the sale of the immoveable property that the plaintiff should make an averment about his readiness and willingness to perform his part of the contract. It therefore forms part of the cause of action for the suit, and it is always open to a party to pray for the dismissal of a suit which does not disclose a cause of action. The plaintiff must therefore have been a ware of this requirement. It has infact been argued by his learned counsel that this was so and that the plaintiff has specifically made such an averment in paragraphs 2, 5 and 8 (1) of the plaint. Now the averment in paragraph 2 has been admitted by the defendant only to the extent that the plaintiff sent a reply to her notice, and the rest of it has been denied in the written statement. Then the defendant has taken the further plea in paragraph 3 of the written statement that there was no cause of action for the suit. It therefore appears that the parties were aware about the necessity of making an averment about the plaintiff's readiness and willingness to perform his part of the contract, so that it cannot be urged with any justification that a new point has been raised for the first time in this court. Moreover issue No.3 has been so worded that the controversy regarding the averment may well be said to fall within its purview, for it raises the question whether the plaintiff was entitled to have the sale-deed executed on payment of Rs. 3,400/-. It may also be mentioned that the plaintiff has led his evidence on this point and it was raised for the consideration of the lower appellate court, and has been considered in paragraphs 14 to 17 of its judgment. No objection was raised in that court that the point could not be argued in the absence of an issue and, for all these reasons. I am not inclined to take the view that it should be ruled out of consideration. Reference in this conec-tion may be made to Gomathinayagam Pillai vs. Palaniswami Nadar(l). That was also a case of specific performance of a contract for the sale of the immoveable property, and there also the trial court did not raise a specific issue about the readiness and willingness of the plaintiff to perform his part of the contract. But the parties were fully aware of what was required to be proved and led evidence in support of their respective cases. No objection was raised in the High Court against the trial of the plea about the plaintiff's readiness and willingness to perform the agreement without a specific issue thereon. For these reasons their Lordships of the Supreme Court held that the second issue, which dealt with the question whether the plaintiff was not entitled to specific performance of the sale of the suit properties, included trial of the plea regarding the absence of the averment about the plaintiff's readiness and willingness to perform his part of the contract. There is therefore high authority for the view that the question whether the plaintiff has made an averment regarding his readiness and willingness to perform his part of the contract should be allowed to be raised in the facts and circumstances of a case like the present, as it relates to the basic question whether the plaint at all discloses a cause of action. As, however, there has been a good deal of controversy before me on the question whether any such averment is necessary in a suit of this nature, I shall proceed to examine the law in that respect. I shall begin by stating the position of the law in England. It has been stated as follows at page 331, paragraph 486, of the Halsbury's Laws of England, third edition, volume 36, - "486. Plaintiff's plea that he is ready and willing to convey - A plaintiff in an action for specific performance of a contract for the sale of land must plead that he is ready and willing to carry out the contract, and repudiation of the contract by the defendant does not relieve the plaintiff from this obligation." The question then is whether this has been so in our country? Such a question arose for consideration in Ardeshir H. Mama vs. Flora Sassoon (2). Lord Blanesburgh stated the position according to the common law of England as follows - "Where the injured party sued at law for a breach, going, as in the present case, to the root of the contract, he thereby elected to treat the contract as at an end and himself as discharged from its obligations. No further performance by him was either contemplated or had to be tendered. In a suit for specific performance on the other hand, he treated and was required by the Court to treat the contract as still submitting. He had in that suit to allege, and if the fact was traversed, he was required to prove a continuous and willingness, from the date of the contract to the time of the hearing, to perform the contract on his part Failure to make good that everment brought with it the inevitable dismissal of his suit." The learned Judge has then stated the position in India as follows. - "Bearing in mind this statement of the existing operation of the English system at the time of the passing of the Specific Relief Act, their Lordships now proceed to an examination of the relevant provisions of that statute. And, first, very notable is the fact that in the Act, the distinction between the two kinds of action is maintained, a distinction obvious in England where originally they had to be brought in different Courts, but not necessarily called for, when, as in India, both legal and equitable relief may be obtained in one. The distinction, however, is clearly indicated in S. 24[c], which enacts that specific performance of a contract cannot be enforced in favour of a person 'who has already chosen his remedy and obtained satisfaction for the alleged breach of contract: and even more directly is it manifested in S. 29 already referred to which enacts that the dismissal of a suit for specific performance of a contract............shall bar the plaintiff's right to sue for compensation for the breach of such contract.' Although so for as the Act is concerned, there is no express statement that the averment of readiness and willingness is in an Indian suit for specific performance as necessary as it always was in England (S. 24(b) is the nearest), it seems invariably to have been recognized, and, on principle their Lordships think rightly, that the Indian and the English requirements in this matter are the same." This statement of Lord Blanesburgh regarding the correct legal position in India has been cited with approval by their Lordships of the Supreme Court in Pt. Prem Raj vs. The D.L.F. Housing and Construction (P.) Ltd. (3) where it has been observed as follows, - "There is also another reason for holding that the appellant has made out no cause of action with regard to the relief of specific performance of the contract. It is well-settled that in a suit for specific performance the plaintiff should allege that he is ready and willing to perform his part of the contract. In the present case, no such averment is made in the plaint. On the other hand, the plaintiff has alleged that the agreement was a result of fraud and undue influence and was not binding upon him. For these reasons it must be held that so far as the relief of specific performance is concerned, the plaintiff has no cause of action." It is therefore quite clear that in our country also an averment about the plaintiffs readiness and willingness is necessary in the plaint. It may also be mentioned that Ardeshir H. Mama vs. Flora Sassoon (2) has been cited and followed with approval by their Lordships of the Supreme Court in Gomathinayagam Pillai vs. Palaniswami Nadar(l). Moreover in Ouseph Var-ghese vs. Joseph Aley(4) their Lordships have referred to the observation in Pt. Prem Raj's case(3) cited above and held that, - "It is well settled that, in a suit for specific performance the plaintiff should allege that he is ready and willing to perform his part of the contract and in the absence of such an allegation the suit is not maintainable." In view of these clear pronouncements, there can be no doubt that a suit for specific performance will not disclose a cause of action, and will not be maintainable, if the plaintiff does not make an averment in the plaint that he is ready and willing to perform his part of the contract. Mr. Gupta tried to get over the omission in the plaint by arguing, with reference to the decision in Tan Ah Boon vs. State of Johore(5), that an action for damages can also not be maintained unless the plaintiff can aver and prove that he has performed and had at all time been ready to perform his part of the contract. The learned counsel has thereby argued that the requirement of the law in England in this respect is the same in a suit for the recovery of damages as in a suit for specific performance, and that if such an averment can be implied in respect of a suit for the recovery of damages as in Tan Ah Boon's case (5), there is no reason why it should not be implied in the other suit for specific performance. The learned counsel has, in this connection, made a cross-reference to Abdullah Bey Chedid vs. Tenenbaum (6). That was a suit for damages by the purchaser, and it was held that readiness and willingness to carry out his obligation need not be expressly pleaded in England, and may be implied. I have gone through the two decisions cited by Mr. Gupta, but they cannot avail the plaintiff because they were actions for the recovery of damages, and not for specific performance of contracts for the sale of lands. The distinction between the two suits for damages the plaintiff treats the obligation at an end, and this is why it has been held that an averment regarding the readiness and willingness to carry out his obligations is a condition precedent to his right to recover damages, so that such a condition need not be specifically pleaded by virtue of 0.19, r. 14 of the Rules of England, which are similar to O.6, r.6 in our Code of Civil Procedure, and shall be implied. It will thus appear that while the averment regarding readiness and willingness is a condition precedent to an action for the recovery of damages, it is an essential part of the cause of action in a suit for specific performance inasmuch as the plaintiff does not put an end to the contract but makes a claim for its specific performance. A condition precedent does not, strictly speaking, form a part of the cause of action: Gates vs. W.A. and R.J. Jacobs, Limited(7). Krishna Prasad Singh vs. Adyanath Ghatak(8), and Ahmed Hossesn vs. Mt. Chembelli(9). It will thus appear that there is no force in the argument of Mr. Gupta to the contrary. He has however made a further reference to Firm Kanwar Bhan Sukha Nand vs. Firm Ganpat Rai-Ram Jiwan (10) which has been followed by this court in Ramdeo vs. Firm Birdhichand Sumermal (11) for the submission that an averment of the performance of the condition precedent, that is to say, readiness and willingness of the plaintiffs to perform their part of the contract, must be implied. It will be sufficient to say that those were cases for the recovery of damages, and are not really in point The same is the position regarding Arjunsa Raghusa vs. Mohanlal Harakchand Arjuna Mudaliar vs. Lakshmi Ammal (13) was no doubt a case for specific performance, and their Lordships, while stating that in a suit for specific performance the plaintiff has to allege that he is ready and willing to perform his part of the contract, reached the conclusion that such an averment could be spelled out from the plaint inasmuch as while the plaintiff put forward his own case, he made it clear that he was ready and willing to perform his part of the contract in accordance with the decision of the court. In Shamlal Yadorao Bhau vs. Yosaram Lodku Power [14], their Lordships no doubt referred to the decision in Arjunsa Raghusa vs. Mohanlal Harakchand [12], but that was with reference to the meaning of the averment of readiness and willingness and, in fact, their Lordships took note of the decision in Ardeshir H. Mama vs. Flora Sassoon[2]. On a perusal of the plaint, however, they found that the plaintiff had asserted that he was ready to perform his part of the contract, and that was therefore held to be quite sufficient. Narayan Nagorao vs. Amrit Haribhau[15J was also a case of specific performance. It was appreciated in that case that the plaintiff must treat the contract as subsisting, and it was held in that connection that he can do so by making a specific allegation to that effect in the plaint. As the plaintiff had clearly referred to the notice given by him to the defendant in which he had expressly stated his readiness and willingness to perform his part of the contract, it was held that there was sufficient compliance with the requirement of the law. Nannapanent Subayya Chowdary vs. Garikapati Veeraya [16] makes a reference to Arjuna Mudaliar vs. Lakshmi Ammal [13] and takes note of the decision in Ardeshir H. Mama vs. Flora Sasson [2]. It has been held in it that it is enough in a suit for specific performance of a contract for the sale of land if the plaintiff makes it clear in the recitals in the plaint that he is ready and willing to perform his part of the contract, and such an averment was found to exist in paragraphs 6 to 8 of the plaint Mr. Gupta has made a reference to Mulla Badruddin vs. Master Tufail Ahmed [17] also. That was a case relating to specific performance, and it was found that the plaintiff had clearly averred in the plaint that he was ready and willing to perform his part of the contract.
(3.) IT is thus clear that the cases cited by Mr. Gupta do not really help the plaintiff, and the fact remains that his learned counsel has not been able to cite any case in which a view contrary to that stated in Ardashir H. Mama vs. Flora Sasson 2) has been taken, or in which O.6, r. 6 C. P. C [O. 19, r. 14 in England] has been invoked for taking the view that such an averment should be taken to be implied in the pleading. There is therefore no force in the argument of Mr. Gupta to the contrary and it may well be said that the point almost settles itself as a result of the above discussion. I have no hesitation in holding that the plaintiff in an action for specific performance of a contract for the sale of land must plead that he is ready and willing to carry out the contract The repudiation of the contract by the defendant will not relieve him of this obligation. The question then is whether the plaintiff has made an averment in the present case that he was ready and willing to perform his part of the contract? It has been argued by Mr. Bachawat that no such averment has been made in the plaint, while it has been contended by Ms. Gupta that, the averment has been made in paragraphs 2, 5 and 8[1]. In order to arrive a decision, it has first to be seen what kind of a plea will meet the requirement of the law in this respect. The matter has been considered in paragraph 6 of Gomathinayagam Pillai vs. Palaniswami Nadar[l], which has been referred to above in another connection and their Lordships of the Supreme Court have held as follows, - "The respondent must in a suit for specific performance of an agreement plead and prove that he was ready and willing to perform his part of the contract continuously between the date of the contract and the date of hearing of the suit....................." The averment in the plaint relied on by Mr. Gupta has therefore to be examined in the light of this requirement. In paragraph 2 of the plaint it has been stated that inspite of reminder and demand, the defendant did not execute and register the sale-deed and that, on the other hand, she gave a notice to the plaintiff on February 3, 1959 refusing to execute the document and that the plaintiff therefore stated in his reply dated February 7, 1959 that if she would not at once execute the sale-deed after registering it, and take Rs. 3,400/- from the plaintiff, proper action would be taken against her. But such an averment cannot be said to fulfil the above-mentioned requirement. Then in paragraph 5 of the plaint the plaintiff has stated that he was entitled to have the sale-deed executed by the defendant and to get it registered, and to pay her Rs. 3,400/-. This is also not an averment of the kind of readiness and willingness required in such a case. Paragraphs 8[1] of the plaint relates to the relief claimed by the plaintiff but, even so, its relevant portion relied upon by Mr. Gupta merely contains the- prayer that the sale-deed should be got executed by the plaintiff on a stamp paper, that it should be registered after attestation and thereafter Rs. 3,400/- should be ordered to be paid to the defendant. This again is not an averment of the plaintiff's continuous readiness and willingness to perform his part of the contract. On the other hand, it may well be said that the pleas taken in paragraphs 2, 5 and 8[1] of the plaint go to show that the plaintiff was not prepared to do anything more than pay Rs. 3,400/- to the defendant Now it has to be remembered that as no contract to the contrary was pleaded in the plaint, it was the duty of the buyer, under sec. 55[l][d] of the Transfer of Property Act, to tender a proper conveyance of the property to the seller for execution at a proper time and place. So also, it was his duty under sec. 29[c] of the Stamp Act to bear the expenses for the purchase of the proper stamp for the conveyance. These statutory obligations of the buyer inhere in every such contract, in the absence of an agreement to the contrary. As it is admitted that there was no agreement to the contrary, it was the plaintiff's duty to make a general [averment of his readiness and willingness to perform his part of the contract, or to plead specifically that he was, inter alia, ready to tender the conveyance and pay the expenses for the purchase of the stamp, Reference in this connection may be made to Ma Hnit vs. Maung Po Pu (18) in which it has been held by their Lordships of the Privy Council that it is the duty of the purchaser to tender a conveyance, and he would then, and not before such a tender was either made or waived, have the right to the deed of transfer. Then it has been held in Dau Alakhram vs. Mt Kulwantin Bai(19) that the expenses for the deed of sale have to be incurred by the purchaser and it was thus for the plaintiff to express his readiness and willingness to pay the money for the stamp paper and to call upon the other side to execute the sale-deed. The other decisions on the point are Saral Kumar Chatterjee vs. Madhusudan Auddy(20) (paragraph 33A), and Mst. Suraj Bai vs. Nawab Mohammad Mukarram Ali Khan(21) The averments referred to by Mr. Gupta in the plaint are therefore quite inadequate. On the other hand, it appears that in paragraph 2 of his written statement under O. 3 r. 9 C.P.C. the plaintiff went to the extent of taking the plea that the defendant agreed to bring the stamp, and he therefore blamed her for her refusal to execute the sale deed. A perusal of Ex. 1 shows, however, that there was no such agreement between the parties and the plaintiff had to admit, during his cross-examination, that this was really so. So even if the averments in the plaint and in the plaintiff's written statement are construed liberally, they do not contain a plea that he was ready and willing to perform his part of the contract continuously between the date of the contract and the date of the hearing of the suit. I have, in this connection, tried to find out whether there is a mention of any such document in the plaint from which such readiness and willingness may be inferred on behalf of the plaintiff. I find that he has made a reference to his reply (Ex. 3) to the defendant's notice Ex 2, but it has not been stated in any part of that reply that the plaintiff was ready and willing to perform his part of the contract. Faced with such a situation, Mr. Gupta tried to get out of the difficulty arguing that the tender of the conveyance and the expenses for the purchase of the stamp were not the essential conditions of the contract for sale and that it was not therefore necessary for the plaintiff to plead that he was ready and willing to comply with the requirement of the law in that respect. The learned counsel made a reference to paragraph 923 of "Fry on Specific Performance", sixth edition, page 436, where it has been stated that the plaintiff need not show performance of, inter alia, the nonessential terms. But that paragraph falls under the heading relating to the performance of past acts and is not really of any relevance for pur-poses of the present controversy. On the other hand, it has been stated as follows in paragraph 948 which appears under the heading. "The performance of the future acts" - "948. We may now consider the obligation which lies on the plaintiff, in an action for specific performance, of being ready and willing to perform all acts that on his part yet remain to be performed." There is therefore no force in the argument of Mr. Gupta, and it was necessary for the plaintiff to make an averments of his readiness and willingness to perform "all acts", and it was not open to him to leave out, or to refuse to comply, with the requirement regarding the tender of the conveyance or the purchase of the stamp. ;