- (1.) THE plaintiff-respondents instituted a suit for specific performance and possession and in the alternative, for the award of Rs. 1500/- as compensation for the breach of contract. THE suit was dismissed by the Munsif, Sanchore, by his judgment dated October 16, 1973. An appeal was preferred by the plaintiffs and the learned Civil Judge, Jalore, vide judgment dated May 3, 1974 accepted the appeal and directed Mst. Kanu to get the sale-deed (Ex. l) registered and to put the plaintiffs in possession over the land measuring 27 bighas 3-1/2 biswas of khasra No. 210 situated in Sanchore and Gajja and Achla (defendants No. 2 and 3 respectively) were directed to join the conveyance so as to pass title to the plaintiffs. Aggrieved against the appellate judgment, the defendants have come up in appeal to this Court under section 100 of the Code of Civil Procedure.
(2.) A few facts necessary for the disposal of this appeal may be noticed: Smt. Kanu is alleged to have sold her land measuring 27 Bighas 3-1/2 Biswas out of khasra No. 210 situate in Sanchore to the plaintiffs for Rs. 1500/-on August 3,1965 and executed a sale-deed (Ex. 1) on the same day on a stamp of Rs. 48/ -. It was not registered on the same day because the Office of the Sub-Registrar was closed. The old accounts between the plaintiffs and Mst. Kanu were settled and the balance of Rs. 1100/- was adjusted towards the sale price. The plaintiffs paid Rs. 400/- in cash to her (Smt. Kanu ). According to the plaintiffs, she was misguided by others and, therefore, she sold the same land to the defendants Gaja and Achla (defendants No. 2 and 3 respectively) by means of sale-deed, which was registered on May 29, 1966. The plaintiffs have averred that defendants No. 2 and 3 had knowledge about the transfer in their favour when they obtained the sale-deed of the land in suit in their favour. The plaintiffs therefore, filed the suit for specific performance and possession and in the alterative for the return of the sale price, stamp expenses with interest @ 12% till realisation. A joint written statement was filed by the defendant appellants. It was denied that Smt. Kanu had sold half of khasra No. 210 measuring 54 Bighas 7 Biswas. It was, however, stated in para 1 of the written statement that the thumb-marks of Smt. Kanu were taken representing the papers to be that of money dealings. In para 1 of the written statement amongst other it was mentioned as under: *** It was stated in the written statement that Smt. Kanu of her own accord sold the land in dispute to defendants No. 2 and 3. It was also pleaded that Smt. Kanu was an old and illiterate lady and advantage of illiteracy and old age was taken in obtaining the thumb-marks. A rejoinder was filed by the plaintiffs denying the allegations made in the written statement. On the basis of the pleadings of the parties, the learned Munsif framed the issues, which when translated into English read as under: 1. Whether Smt. Kanu sold her share of khatedari field No. 210 to the plaintiffs for Rs. 1500/- and executed the sale-deed in dispute for the same? 2. Whether the plaintiffs are entitled to get a decree for specific performance of the contract on the basis of the sale-deed ? 3. Whether the plaintiffs are entitled to get the sale-deed registered? 4. Whether the plaintiffs are entitled to get the possession of the land in dispute? 5. Whether the plaintiffs are entitled to get Rs. 49. 20p for the nonjudicial stamps on which the sale-deed was written on August 3, 1965? 6. Whether the sale of the land by defendant No. 1 in favour of defendants No. 2 and 3 on August 9, 1966 is liable to be set aside? 7. If the suit is not decreed for the specific performance of the contract, whether in the alternative the plaintiffs are entitled to get Rs. 1500/- from the defendants? 8. Whether the sale deed dated August 3, 1965 is forged and without consideration? 9. Whether the plaintiffs are entitled to get the costs and compensation from the defendants? 10. Relief. The plaintiffs examined UK Chand (PW 1), Pratapmal (PW 2), Ridmal (PW 3), Amarlal (PW 4), Bhagwana (PW 5), Lakha (PW 6), Sawa (PW 7) and Ladumal (PW 8 ). In rebuttal, Sm. Kanu (DW 1), and Gajja (DW 2) were examined on behalf of the defendants. After trial, the learned Munsif, by his judgment dated October 16, 1973 dismissed the suit of the plaintiffs. Feeling aggrieved, the plaintiffs went in appeal and the learned Civil Judge, Jalore accepted the appeal, set aside the judgment and decree of the learned Munsif and decreed the suit of the plaintiffs for specific performance of the contract (Ex. 1) dated August 3, 1965. Defendant No. 1, Smt. Kanu, was directed to get the sale-deed (Ex. 1 Registered and to put the plaintiffs in possession over the land in dispute described in para 1 of the plaint. Defendants No. 2 and 3 were directed to join in the conveyance so as to pass title which resides in them to the plaintiffs. A further direction was also given that in case, the defendants failed to do so within three months, the plaintiffs may apply to the court for executing the aforesaid decree on behalf of the defendants. It may be stated that during the pendency of this appeal, defendant-appellant No. 1 (Smt. Kanu) died and in her place Smt. Vadu w/o Jagga, as her Dalai representative, was substituted. I have heard Mr. Rajendra Mehta, learned counsel for the appellants and Mr. Mangilal Shreemali, learned counsel for the respondents and have gone through the record.
(3.) BEFORE I proceed to examine the arguments advanced on behalf of the parties, it will be useful to state the findings recorded by the learned Civil Judge: 1. that the sale-deed (Ex. l) was executed with consideration whereby deciding issue No. 1 in favour of the plaintiffs, 2. that defendants No. 2 and 3 were not the purchasers with value having no knowledge of the prior contract existing in favour of the plaintiffs and thus the contract can be specifically enforced against them, 3. that the defendants have not pleaded laches, acquiescence or delay on the part of the plaintiffs as such, the specific performance of the agreement could not be denied particularly when no prejudice was going to be caused to the defendants, 4. that the defendant No. 1 had received full consideration. All her defences were found wholly unsustainable, as such the plaintiffs were entitled to the relief of specific performance and. 5. that the court need not pass the order regarding cancellation of the subsequent sale-deed inasmuch as defendants No. 2 and 3 are also to join defendant No. 1 in the conveyance so as to pass title which resided in them to the plaintiffs. It was argued, in the first instance, by Mr. Rajendra Mehta, learned counsel for the appellants that there is no averment of readiness and willingness to perform their part of the contract by the plaintiffs in the plaint and, therefore in, the absence of such an averment, the suit for specific performance ought not to have been decreed by the lower appellate court In support of his argument, he referred to section 16 (c) of the Specific Relief Act, 1963 (No. XLVII of 1963) (for short 'the Act' hereafter ). The material portion of section 16 of the Act is as under: " 16. Personal bars to relief: Specific performance of a contract cannot be enforced in favour of a person: (a ). . . . . . . . . . . . . . . . . . (b ). . . . . . . . . . . . . . . . . . (c) who fails to aver and prove 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, other than terms the performance of such has been prevented or waived by the defendant. Explanation: for the purposes of clause (c), (i) where a contract involves the payment of money, it is not essential for the plaintiff to actually tender to the defendant or to deposit in Court any money except when so directed by the Court; (ii) the plaintiff must aver performance of, or readiness and willingness to perform, the contract according to its true construction. " On the basis of Prem Raj V. D. L. F. Housing and Construction (P.) Ltd. (l), R. P. Rai vs. Rajdeva Rai (2), Sankatha Prasad vs. Abdul Aziz Khan (3)Har Pratapsingh vs. Satyanarain Misra (4), he submitted that the requirement of the provisions of sec. 16 (c) of the Act are mandatory. On the other hand, Mr. Mangilal Shreemali learned counsel appearing for the respondents, urged that the aforesaid point was not raised by the defendants either in the written statement or before any of the courts below, and, therefore he should not be allowed to raise this point. He also submitted that had he taken this point either in the trial court or in the first appellate court, steps would have been taken by the plaintiffs to remove the alleged defects. According to him, the question of readiness and willingness is one which can only be determined on the basis of the evidence, and as such it being a mixed question of law and fact should not be permitted to be raised in second appeal. He invited my attention to Nurual Hasan V. Mahbub Bux (5) and State of Gujrat V. Vora Solebhai Gulamali (6 ). Reference was also made to section 99 of the Code of Civil Procedure and it was pressed that the objection that the averment of readiness and willingness was not made in the plaint does not effect the consequence. He decision of the case on merits and as such it is not of much also contended that on the facts and in the circumstances of the case, from the plaint, compliance of the provisions of section 16 (c) of the Act can be inferred. He relied on Kamdev Nath Choudhary V. Devendra Kumar Nath (7 ). The copies of the plaint and written statement were shown to me by the learned counsel for the defendants, as the same were not readable which are on the record. It is clear from the plaint that the sale-deed (Ex. 1) dated 3-8-1965 was written on a non-judicial stamp paper and it was executed. It is also stated that the sale deed could not be registered as the office time of the Sub-Registrar was over on that day and, therefore, the defendant agreed to get it registered. In para 2 of the plaint it was stated that the sale consideration was Rs. 1500/- out of which Rs.- which were found due from Smt. Kanu were adjusted towards the sale price and Rs. 400/- were paid in cash. In para 3, it is mentioned that the plaintiffs spent Rs. 48/- in connection with the stamps etc. and Rs. 1. 20 were paid cash on being asked by defendant No. 1 which she failed to return. The sale-deed, which was executed by defendant No. 1 was presented for registration in the office of the Sub-Registrar by the plaintiffs. But despite information, she d|id not appear before the Sub-Registrar for registration and tried to avoid it. From these averments in the plaint, it is clear that whatever was performed by nothing remained and willing to the plaintiffs in respect of the contract was averred and that to be performed by them. It was observed by a learned Judge of the Gauhati High Court in Kamdev's case (7) as under : " The plaintiff instead of expressing in so many words that he was ready perform the contract did deposit the entire consideration money into Court. This is a clear manifestation of his "readiness and willingness" and the act of deposit is full and complete compliance of the provisions of section 16. " I respectfully agree with the view taken in the above case. In my opinion, there is substantial and due compliance of the provisions of section 16 (c) of the Act, and the plaintiffs cannot be non-suited in the absence of specific objection being raised in the written statement by the defendants on the ground that they have failed to ever and prove that they had performed or have always been ready and willing to perform the essential terms of the contract which are to be performed by them. At the risk of repetition, it may be stated that from the averments made in the plaint, so far as plaintiffs are concerned, there remained nothing to be performed, for, even after the execution of the sale-deed (Ex. 1), they presented it for registration before the Sub-Registrar when Smt. Kanu failed to get it registered. In view of this, it is not necessary to examine the authorities cited by the learned counsel for the parties. The first contention raised by Mr. Rajendra Mehta, learned counsel for the appellants is, therefore, rejected. ;