# Babu Ram & Ors v. Om Singh & Anr

- **Citation:** (2022) 4 ILRA 201
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-03-14
- **Case number:** Second Appeal No. 657 of 2003
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/babu-ram-ors-v-om-singh-anr-48286
- **Pages:** 22

## Headnote

A. Civil Law - Specific Relief Act, 1963 -
Section 16 - Bars to relief - Specific
performance of a contract cannot be
enforced in favour of a person who fails to
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 - Issue - Whether
a suit for specific performance can be
decreed without an issue about readiness
and willingness being framed where the
issue is substantially suited between
parties? - Held - a suit for specific
performance can be decreed without an
issue about readiness and willingness
being framed, provided readiness and
willingness are substantially pleaded and
proved by the parties' evidence, where the
parties have gone to trial conscious of the
plea, with opportunity to the defendants,
to dispel the same - decree would not
vitiate where the parties had notice of the
case about readiness and willingness and
had opportunity to lead evidence about it,
with no prejudice being occasioned to the
defendants on account of the failure to
specifically frame that issue (Para 39, 40)

B. Civil Law - Specific Relief Act, 1963 -
U.P. Consolidation of Holdings Act, 1953 -
Section 30 - Transfer of Property Act,
1882 - Section 54 - Whether specific
performance can be granted in relation to
agricultural land that has been the subject
matter of consolidation operations where
the vendee has been moved to different
plots, different from those that are subject
matter of the suit agreement ? - Held -
where agricultural land, subject matter of
consolidation, that is agreed to be sold, is
consolidated and the defendant-vendor is
moved to different plots, the contract
would frustrate; but it would not frustrate
where substantially, the subject matter of
the suit agreement remains the same,
with minor or negligible changes - Once
the chak allotted to the defendant-vendor
is substantially the same land, that is
subject matter of the suit agreement, the
contract would not frustrate - Minor
202 INDIAN LAW REPORTS ALLAHABAD SERIES
adjustments in the area of the plots or
exclusion of a plot number of negligible
area from the consolidated holding would
not, in any manner, change the identity of
the subject matter (Para 45, 46)

C. Civil Law - Specific Relief Act, 1963 -
Section 20, Substituted performance of
contract - Transfer of Property Act, 1882 -
Section 52, Transfer of property pending
suit relating thereto - lis pendens - a
transfer pendente lite confers title upon
the purchaser, who takes the risk subject
to the rights of his vendor - If the vendor
fails in the litigation, the purchaser
pendente lite has no right of his own or
equities to plead - There is only one
eventuality under which the transferee
pendente lite may acquire rights that
would not be affected by the decree, and
that is if the transfer has been made with
permission of the Court, where the suit
about rights of parties is pending, Else, a
purchaser pendente lite has no rights
under the law (Para 50, 51)

Suit was instituted by the plaintiff-vendees
on
20th
August,
1998
for
specific
performance of contract, to execute sale
deed - the defendant- vendor executed a
registered sale deed relating to the suit
property
in
favour
of
the
defendantpurchasers on 16.09.1998 - the sale deed hit
by the principle of lis pendens - defendantpurchasers have not taken the suit property
through a sale deed that was executed with
the permission of the Court - suit property
have been transferred very shortly after the
suit was instituted - Sale dded have been
executed to defeat the rights of the plaintiffvendees
-
discretion
to
grant
specific
performance has been rightly exercised by
the two Courts below (Para 51)

Dismissed. (E-5)

List of Case cited:-

## Text

_Characters 0–39,828 of 76,291. This is a partial read: ask again with offset=39828 for what follows._

4 All. Babu Ram & Ors. Vs. Om Singh & Anr.
201
the Hindu Marriage Act on the ground
of irretrievable breakdown of marriage.

43. In view of the answer to
Substantial Questions of Law (A) and (B),
this appeal must succeed.

44. In the result, this appeal succeeds
and is allowed. The impugned decree dated
19.02.2013 passed by the Lower Appellate
Court and that dated 12.09.2012 passed by
the Trial Court are set aside and reversed. The
divorce petition is allowed. There shall be a
decree dissolving the marriage between the
appellant and the respondent forthwith.

45. Costs easy.

46. Let a decree be drawn up
accordingly.

47. The lower court records shall be
sent down at once to the Family Court
along with a certified copy of this
judgment.
----------
(2022)04ILR A201
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 14.03.2022

BEFORE

THE HON'BLE J.J. MUNIR, J.

Second Appeal No. 657 of 2003

Babu Ram & Ors. ...Appellants
Versus
Om Singh & Anr. ...Respondents

Counsel for the Appellants:
Sri U.K. Mishra, Sri A.K. Mishra, Sri
Ashutosh Mishra, Sri I.B. Yadav, Sri K.
Mishra, Sri V.K. Mishra

Counsel for the Respondents:
Sri Y.S. Bohra, Ms. Pooja Agarwal

A. Civil Law - Specific Relief Act, 1963 -
Section 16 - Bars to relief - Specific
performance of a contract cannot be
enforced in favour of a person who fails to
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 - Issue - Whether
a suit for specific performance can be
decreed without an issue about readiness
and willingness being framed where the
issue is substantially suited between
parties? - Held - a suit for specific
performance can be decreed without an
issue about readiness and willingness
being framed, provided readiness and
willingness are substantially pleaded and
proved by the parties' evidence, where the
parties have gone to trial conscious of the
plea, with opportunity to the defendants,
to dispel the same - decree would not
vitiate where the parties had notice of the
case about readiness and willingness and
had opportunity to lead evidence about it,
with no prejudice being occasioned to the
defendants on account of the failure to
specifically frame that issue (Para 39, 40)

B. Civil Law - Specific Relief Act, 1963 -
U.P. Consolidation of Holdings Act, 1953 -
Section 30 - Transfer of Property Act,
1882 - Section 54 - Whether specific
performance can be granted in relation to
agricultural land that has been the subject
matter of consolidation operations where
the vendee has been moved to different
plots, different from those that are subject
matter of the suit agreement ? - Held -
where agricultural land, subject matter of
consolidation, that is agreed to be sold, is
consolidated and the defendant-vendor is
moved to different plots, the contract
would frustrate; but it would not frustrate
where substantially, the subject matter of
the suit agreement remains the same,
with minor or negligible changes - Once
the chak allotted to the defendant-vendor
is substantially the same land, that is
subject matter of the suit agreement, the
contract would not frustrate - Minor
202 INDIAN LAW REPORTS ALLAHABAD SERIES
adjustments in the area of the plots or
exclusion of a plot number of negligible
area from the consolidated holding would
not, in any manner, change the identity of
the subject matter (Para 45, 46)

C. Civil Law - Specific Relief Act, 1963 -
Section 20, Substituted performance of
contract - Transfer of Property Act, 1882 -
Section 52, Transfer of property pending
suit relating thereto - lis pendens - a
transfer pendente lite confers title upon
the purchaser, who takes the risk subject
to the rights of his vendor - If the vendor
fails in the litigation, the purchaser
pendente lite has no right of his own or
equities to plead - There is only one
eventuality under which the transferee
pendente lite may acquire rights that
would not be affected by the decree, and
that is if the transfer has been made with
permission of the Court, where the suit
about rights of parties is pending, Else, a
purchaser pendente lite has no rights
under the law (Para 50, 51)

Suit was instituted by the plaintiff-vendees
on
20th
August,
1998
for
specific
performance of contract, to execute sale
deed - the defendant- vendor executed a
registered sale deed relating to the suit
property
in
favour
of
the
defendantpurchasers on 16.09.1998 - the sale deed hit
by the principle of lis pendens - defendantpurchasers have not taken the suit property
through a sale deed that was executed with
the permission of the Court - suit property
have been transferred very shortly after the
suit was instituted - Sale dded have been
executed to defeat the rights of the plaintiffvendees
-
discretion
to
grant
specific
performance has been rightly exercised by
the two Courts below (Para 51)

Dismissed. (E-5)

List of Case cited:-

1. M/ s. J.P. Builders & anr. Vs A. Ramadas Rao
& anr. (2011) 1 SCC 429

2. Atma Ram Vs Charanjit Singh (2020) 3 SCC
311
3. Dhanu Vs Ajai Kant & ors. 2019 SCC OnLine
All 5148

4. Channayya & anr. Vs Annapurna 2006 SCC
OnLine Kar 24

5. Official Liquidator, Supreme Bank Ltd. Vs P.A.
Tendolkar (dead) by LRs & ors. (1973) 1 SCC
602

6. P. Purushottam Reddy & anr. Vs Pratap
Steels Ltd (2002) 2 SCC 686

7. Piarey Lal Vs Hori Lal (1977) 2 SCC 221

8. Baikunthi Devi & ors. Vs Mahendra Nath &
anr. (1977) 2 SCC 496

9. A. Nawab John & ors. Vs Subramaniyam
(2012) 7 SCC 738

(Delivered by Hon'ble J.J. Munir, J.)

1. This is a defendants' second appeal,
arising
out
of
a
suit
for
specific
performance of contract.

2. Om Singh and Jay Bhagwan, who
are the two respondents to this appeal,
instituted Original Suit No. 769 of 1998
against Bhawar Singh, Suresh Pal, Rajpal,
Tejpal, Babu Ram and Jagpal, all of whom
are the appellants here, seeking a decree for
specific performance of contract. It was the
plaintiffs' case that defendant no. 1 to the
suit, Bhawar Singh is the bhumidhar of
agricultural land comprising plot no.
248(M) admeasuring 0.008 hectares, plot
no. 250 admeasuring 0.010 hectares, plot
no. 251(M) admeasuring 1.354 hectares,
plot no. 252/1 admeasuring 0.086 hectares,
plot no. 252/2 admeasuring 0.020 hectares
and plot no. 253 admeasuring 0.089
hectares, aggregating an area of 1.567
hectares, situate at Village Harchandpur,
Tehsil and District Baghpat. Out of the said
plots, he had sold away on 15.06.1994, a
substantial part in favour of the plaintiff-
4 All. Babu Ram & Ors. Vs. Om Singh & Anr.
203
vendees, leaving a residue of 0.237
hectares. The defendant-vendor Bhawar
Singh executed a registered agreement to
sell, relating to the remainder of 0.237
hectares of land in the plots above detailed,
in favour of plaintiff-vendees Om Singh
and Jay Bhagwan, covenanting to sell the
said property for a total sale consideration
of Rs. 48000/-. Bhawar Singh received in
earnest a sum of Rs. 5000/- out of the
contracted sale consideration.

3. The agreement to sell was admitted
to registration by the Sub-Registrar on
15.06.1994. It was covenanted that the
conveyance in terms of the suit agreement
shall be executed by Bhawar Singh
(hereinafter referred to as the ''defendantvendor') within a period of 1 year and 3
months, that is to say, by 15.09.1995. The
plaintiffs, Om Singh and Jay Bhagwan
pleaded that they have been ever ready and
willing to get a conveyance executed and
registered in accordance with the suit
agreement and have never neglected to
perform their part of the contract. Om
Singh and Jay Bhagwan shall hereinafter be
referred to as the ''plaintiff-vendees'.

4. The plaintiff-vendees requested the
defendant-vendor many a times over by
word of mouth to come forward and
execute the sale deed as covenanted after
receipt of the balance sale consideration of
Rs. 43,000/-, but the defendant-vendor
would
ward
off
responding
to
his
obligation. The plaintiff-vendees, faced
with inaction, caused a registered notice
dated 14.08.1995 to be served upon the
defendant-vendor through their learned
Counsel
Mr.
Chashmveer
Singh,
an
Advocate at Baghpat, calling upon the
defendant-vendor to appear before the SubRegistrar's office at Baghpat on 15.09.1995
and execute the requisite sale deed in terms
of the suit agreement, upon receipt of the
balance sale consideration. The notice
aforesaid was served upon the defendantvendor in due time and on 15.09.1995, the
plaintiff-vendees attended the office of the
Sub-Registrar
at
Baghpat,
but
the
defendant-vendor did not appear to fulfil
his obligation under the suit agreement.
The
plaintiff-vendees,
on
15.09.1995,
reached the Sub-Registrar's office at
Baghpat,
along
with
balance
sale
consideration and waited outside the office
throughout the day for the defendantvendor. The plaintiff-vendees got their
attendance marked with the Sub Registrar
in accordance with rules. The defendantvendor got the plaintiff-vendees' notice
dated 14.08.1995 replied to through his
Counsel vide a memo dated 23.08.1995,
carrying incorrect facts. The defendantvendor's
reply
to
the
notice
dated
14.08.1995 assured the plaintiff-vendees
that the former had turned dishonest and
was disinclined to execute a sale deed in
terms of his obligations under the suit
agreement.

5. Accordingly, the plaintiff-vendees
instituted Original Suit No. 769 of 1998
before the Court of Civil Judge (Senior
Division), Meerut on 20.08.1998, seeking a
decree of specific performance, ordering
the
defendant-vendor
to
execute
the
requisite sale deed in terms of the suit
agreement after receipt of the balance sale
consideration. It was further prayed that in
the event the defendant-vendor does not
comply with the decree within the time
provided by Court, sale deed be executed in
favour of the plaintiff-vendees through
process of Court in accordance with law
and actual physical possession over the suit
property be delivered to them. The plaint,
as originally drawn up, arrayed the
defendant-vendor alone as the defendant
204 INDIAN LAW REPORTS ALLAHABAD SERIES
and it was against him alone that the relief
was sought.

6.
 A
written
statement
dated
23.11.1998 was filed by the defendantvendor, traversing the plaintiff-vendees'
case.
He
denied
executing
the
suit
agreement or receiving any earnest. It was
pleaded that on 15.06.1994, that is to say,
the date when the suit agreement is said to
have been executed, the defendant-vendor
had executed a sale deed of all his
agricultural holding in favour of the
plaintiff-vendees, under the pressure of his
son. The suit property was all that had been
left with him. The defendant-vendor's son
was given to vices and had subjected the
defendant-vendor
to
undue
influence,
asking him to execute a conveyance on
15.03.1994 in favour of the plaintiffvendees. In deference to his son's wishes,
the defendant-vendor executed a sale deed
in favour of the plaintiff-vendees, but was
not paid any sale consideration. All that is
shown as consideration in the sale deed
would have been paid to the vendor's son.
The vendor did not receive anything
towards consideration. It was denied that
any notice was served upon the defendantvendor, asking him to appear before the
Sub-Registrar and further that he never
caused a reply to that notice to be sent to
the plaintiff-vendees through his Counsel.
He never instructed any Counsel to answer
the plaintiff-vendees' notice. It was the
defendant-vendor's case that he never
instructed any Counsel and if a reply had
been sent to the plaintiff-vendees, it was a
got up one, which the plaintiff-vendees got
served upon themselves through Counsel,
set up on the defendant-vendor's behalf,
without the latter's authority.

7. It was further pleaded that the
defendant-vendor is an illiterate and a poor
man. He has a lone son, who is given vices
and stays away from the village. The son
brought undue influence to bear upon the
defendant-vendor, forcing him to sell his
land. Acting under his son's pressure and
influence, the defendant-vendor parted with
16 bighas (kachcha) of his agricultural
holding in favour of the plaintiff-vendees
through a registered sale deed dated
15.06.1994. The sale consideration set forth
in the sale deed was never received by the
defendant-vendor. He does not know how
much
money
was
paid.
Whatever
consideration was paid by the plaintiffvendees was received by the defendantvendor's son, who never accounted for it. It
is pleaded that the defendant-vendor had a
total of 19 bighas (kachcha) of agricultural
holding, out of which he had a remainder of
three bighas after execution of the sale
deed last mentioned. He had retained the
said land in order to feed his cattle. On the
date the sale deed was executed in favour
of the plaintiff-vendees, they had got a
number of papers thumb marked by him
and out of those papers, some were utilised
to manufacture the suit agreement. The
defendant-vendor came to know of all this
transaction carried in the suit agreement,
when he was served with the Court's
summons dated 19.08.1998 on 16.10.1998,
asking him to appear and put in his written
statement.

8. It is the vendor's case that the
plaintiff-vendees had got the suit agreement
executed by playing fraud, taking undue
advantage of his lack of understanding.
They got the papers carrying the suit
agreement thumb-marked by practising
fraud and on the basis of that fraudulent
agreement, they have instituted the present
suit.
The
vendor
never
consciously
executed the suit agreement nor did he
come to know of this fraud in good time. It
4 All. Babu Ram & Ors. Vs. Om Singh & Anr.
205
is also the defendant-vendor's case that he
is a humble farmer and had no occasion to
purchase land or so to speak, experience of
transacting sale/ purchase of land.

9. The plaintiff-vendees are natives of
village Sunheda. They had their land in
Village Harchandpur, which they have sold
off and purchased land from the defendantvendor worth the proceeds that they
received from the sale of their land. The
defendant-vendor agreed to sell that land in
deference to his unworthy son's wishes. He
never wished to sell his land, but did not
have the courage to disoblige his son. He
was left with three bigha (kachcha) land
(the suit property) that he utilizes to earn
his livelihood. He owned a buffalo that
yielded milk, but the same was not
sufficient to feed himself and his ageing
wife. He has purchased, therefore, a
bullock-cart after selling off his buffalo to
make his ends meet.

10. It appears that pending suit, on
16.09.1998, the defendant-vendor sold off
the suit property through a registered
conveyance in favour of Babu Ram, Jagpal,
Tejpal and Rajpal, all sons of Preetam
Singh and Suresh Pal son of Dalel. In order
to avoid any legal complication, these
defendant-purchasers pendente lite were
applied to be impleaded as defendants to
the suit by the plaintiff-vendees and
necessary amendment sought to the plaint,
both of which were granted. Accordingly,
appellant nos. 1 to 5 to this appeal were
impleaded as defendant nos. 2 to 6 to the
suit. The defendants-appellant nos. 1 to 5
shall hereinafter be referred to as the
defendant-purchasers.
It
appears
that
pending suit, the suit property, in relation
whereto, the suit agreement was executed,
was the subject matter of consolidation, in
consequence whereof the plot numbers
mentioned in the suit agreement were
assigned a new number bearing khasra no.
530. Therefore, along with the amendment
sought to implead the defendant-purchasers
and bringing on record facts about the sale
deed in their favour, an amendment was
also sought to the plaint, pleading that the
old plot numbers, subject matter of the suit
agreement, have been assigned a new
khasra number bearing no. 530 during
consolidation with an identical area.

11. The written statement filed by the
defendant-vendor was amended twice; once
on 12.10.2000 and the other on 11.04.2001.
By the amendment of 12.10.2000, it was
pleaded that the plaintiff-vendees never
expressed their willingness to purchase the
suit
property
and
never
demanded
execution of a conveyance on the basis of
the suit agreement.

12. By the other amendment dated
11.04.2001, it was pleaded that the
defendant-purchasers have purchased the
defendant-vendor's entire land comprising
plot no. 530 admeasuring 0.237 hectares,
whereof the defendant-vendor was the sole
bhumidhar, the said land being allotted to
him under Section 30 of the U.P.
Consolidation of Holdings Act, exclusively,
and in relation whereto, he had complete
rights under the law to transfer in favour of
the defendant-purchasers. It was pleaded
that the transfer made in favour of the
defendant-purchasers was valid and the
said conveyance does not entitle the
plaintiff-vendees to any compensation from
the defendant-vendor. A plea was further
incorporated to the effect that the suit is
barred by limitation.

13. A separate written statement was
filed on behalf of the defendant-purchasers
jointly
on
10.04.2000,
in
substance,
206 INDIAN LAW REPORTS ALLAHABAD SERIES
pleading a case that they were the bona fide
purchasers for value without notice. The
other pleadings raised are the same as those
raised by the defendant-vendor that the suit
agreement was secured by the plaintiffvendees through the practice of fraud etc.
which does not confer any right upon them.

14. On the pleadings of parties, the
Trial Court framed the following issues
(translated into English from Hindi):

"1. Whether the plaintiffs are
entitled to get a sale deed executed in their
favour on the basis of the disputed
agreement to sell dated 15.06.1994 as
pleaded in plaint?

2.
Whether
the
disputed
agreement was executed by Bhawar Singh
in favour of the plaintiffs is without
consideration as pleaded in paragraph
no. 11 of the written statement bearing
paper no. 18 ka-1, if yes, its effect on the
suit?

3.
Whether
the
disputed
agreement to sell dated 15.06.1994 was got
executed by the plaintiffs by defrauding the
defendant, as pleaded in paragraph no. 13
of the written statement?

4. Whether defendant nos. 2 to 6
are bona fide purchasers for value without
notice as pleaded in paragraph no. 18 of
their written statement bearing paper no.
31 ka-1?

5. Relief, to which the plaintiffs
are entitled?

6. Whether the suit is time
barred?

7. Whether defendant no. 1 has
exclusive right to the suit property?

8. Whether defendant nos. 2 to 6
in their capacity as the transferees of the
disputed land have exclusive right to it, if
yes, its effect?"

15. The plaintiff-vendees, in support
of their case, have led documentary
evidence that inter alia includes the suit
agreement in original, marked Ex. ka-2, the
notice dated 14.08.1995 in original, marked
as Ex. ka-1, registered postal receipt paper
no. 10-ga, the A.D. Card paper no. 11-ga,
the reply to the notice dated 23.08.1995,
paper no. 12-ga, a certified copy of the
application for attendance, paper no. 13-ga
Ex. ka-3, a certified copy of the application
for attendance Ex. ka-4, a certified copy of
CH-Form Ex. ka-1, a certified copy of CHForm-41, Ex. 2. In addition, oral evidence
was led on behalf of the plaintiff-vendees
comprising PW-1 Om Singh, PW-2 Shiv
Charan and PW-3 Virendra Kumar.

16. The defendant-vendor and the
defendant-purchasers filed the sale deed in
original executed by the defendant-vendor
in favour of defendant-purchasers dated
16.09.1998 paper no. 43-ka. In their oral
testimony, the defendant-vendor and the
defendant-purchasers
examined
DW-1
Bhawar Singh and DW-2 Babu Ram.

17. The Trial Court, by its judgment
and decree dated 08.05.2002, decreed the
plaintiff-vendees'
suit
for
specific
performance of contract, ordering the
defendant-vendor to execute the requisite
sale deed in favour of the plaintiff-vendees
within a month after receiving the balance
sale consideration.

18. The defendant-purchasers and the
defendant-vendor
together
carried
an
appeal to the learned District Judge, Meerut
from the Trial Court's decree. The appeal
was numbered as Civil Appeal No. 130 of
2002 and came up for determination before
the learned District Judge, Meerut on
11.02.2003. The learned District Judge,
4 All. Babu Ram & Ors. Vs. Om Singh & Anr.
207
Meerut dismissed the appeal with costs,
affirming the Trial Court.

19. Aggrieved, this appeal from
appellate decree has been carried by the
defendant-vendor
and
the
defendantpurchasers
together. The appeal was
admitted to hearing on 22.05.2003 and by a
separate order of the said date, operation of
the decree for specific performance was
stayed. Since the order of admission made
on 22.05.2003 did not formulate the
substantial questions of law involved, but
admitted the appeal with reference to the
question no. 9-B as framed at the foot of
the appeal, this Court, before the opening
of hearing, proceeded to formulate the
substantial questions of law involved vide
order dated 01.09.2021. The substantial
questions of law involved in this appeal
read:

(1) Whether a suit for specific
performance can be decreed without an
issue about readiness and willingness being
framed?

(2) Whether a suit for specific
performance can be decreed without an
issue of readiness and willingness being
framed where the issue is substantially
suited between parties?

(3)
Whether
specific
performance can be granted in relation to
agricultural land that has been the
subject
matter
of
consolidation
operations where the vendee has been
moved to different plots, different from
those that are subject matter of the suit
agreement

(4) Whether the Court while
granting specific performance ought to
exercise
discretion
according
to
the
principles settled under Section 20 Specific
Relief Act?

20. Heard Mr. Ashutosh Mishra,
learned Counsel for the defendant-vendor
and the defendant-purchasers. Ms. Pooja
Agarwal, learned Counsel appearing on
behalf of the plaintiff-vendees, has been
heard in answer.

21. Substantial Questions of Law
Nos.1 and 2 are essentially the same, with
the second question carrying the essence of
the proposition involved to its last detail.
As such, both the questions are being dealt
with together.

22. It is submitted by Mr. Ashutosh
Mishra, learned Counsel for the defendants
that in a suit for specific performance, it is
essential that the plaintiffs must show their
readiness and willingness at all times.
Readiness connotes financial capacity of
the one who seeks to enforce specific
performance,
whereas
willingness
distinctly refers to his personal or mental
inclination to enforce performance of the
contract. Section 16(c) of the Specific
Relief Act, 1963 mandates 'readiness' and
'willingness' on the plaintiffs' part and is a
condition precedent to the grant of relief of
specific performance. The law requires that
the plaintiffs must allege and prove a
continuous 'readiness' and 'willingness'
from the date of the contract till the
institution of the suit. It is emphatically
argued that the Trial Court's failure to
frame an issue with regard to the plaintiffs'
'readiness' and 'willingness' renders the
decree passed by the two Courts below
unsustainable in law. It is pointed out by
the learned Counsel for the defendants that
failure of the Trial Court to frame a proper
issue with regard to 'readiness' and
'willingness' and the resultant failure of
justice was culled out as a ground in the
memorandum of appeal lodged before the
208 INDIAN LAW REPORTS ALLAHABAD SERIES
Lower Appellate Court, that has been
asserted in Paragraph No.8 thereof.

23. Elaborating these submissions, it
is argued that the plaintiff-vendees have
failed to establish their 'readiness' in view
of the specific averments carried in
Paragraph No.14 of the written statement
filed on behalf of the defendant-purchasers.
In support of his submission on this score,
Mr. Ashutosh Mishra has placed reliance on
the decision of the Supreme Court in M/s.
J.P. Builders and another v. A. Ramadas
Rao and another1. It is next submitted that
without framing an issue about readiness
and willingness, the Trial Court has
returned a finding about willingness alone,
with nothing said on the point of readiness.
To this end, learned Counsel for the
defendants has drawn the attention of the
Court to the findings of the Trial Court
recorded on Issue Nos.1 and 2.

24. It is submitted by Mr. Mishra that
the plaintiff-vendees have failed to prove
their readiness and willingness from
15.09.1995 (the date when they appeared
before the Sub-Registrar) to 20.08.1998
(the date of institution of the suit). The
Courts below, in the submission of the
learned Counsel for the defendants, have
failed to take into consideration the
plaintiff-vendees' failure to prove their
''readiness' and ''willingness' throughout the
aforesaid period of time. Instead, the Lower
Appellate Court has returned a perverse
finding that the suit can be filed even on the
last date of limitation with a remark that
people tend to avoid litigation. It is urged
that the Lower Appellate Court has
committed a manifest error of law in not
appreciating the fact that ''readiness' and
''willingness' had to be established on the
last day of limitation also. The Lower
Appellate Court, according to the learned
Counsel for the defendants, has confounded
the limitation prescribed for instituting the
suit with the requirement of readiness and
willingness to get a conveyance executed in
terms of the contract, a matter generically
different from limitation. In support of his
contention,
learned
Counsel
for
the
defendants has further placed reliance on
the decision of the Supreme Court in Atma
Ram v. Charanjit Singh2, the decision of
this Court in Dhanu v. Ajai Kant and
others3 and the authority of the Karnataka
High Court in Channayya & another v.
Annapurna4.

25. The learned Counsel for the
plaintiff-vendees, Ms. Pooja Agarwal, has
refuted the submissions advanced on behalf
of the defendants on the questions under
consideration. She submits that a perusal of
the record indicates that the plaintiffvendees have categorically averred in the
plaint that they are ever ready and willing
to perform their part of the contract and had
given notice to the defendant-vendor to
appear in the Office of the Sub-Registrar,
Baghpat on 15.09.1995 to execute the
covenanted sale deed. It was the defendantvendor, who was in breach and did not turn
up all through the day before the SubRegistrar. It is pointed out that oral and
documentary evidence have been led by the
plaintiff-vendees to establish the twin facts
of readiness and willingness. She submits
that by deciding Issue No.1 along with
Issue
No.7,
the
Trial
Court
has
wholesomely tried the issues of readiness
and willingness. Upon consideration of the
relevant evidence, the Trial Court has found
the plaintiff-vendees ready and willing to
perform their part of the contract under the
suit agreement. It is the learned Counsel's
submission that a finding has been recorded
by the Trial Judge that the notice dated
14.08.1995 was received by the defendant-
4 All. Babu Ram & Ors. Vs. Om Singh & Anr.
209
vendor, but he did not appear before the
Sub-Registrar on 15.09.1995 to execute the
sale deed. It has also been found that the
plaintiff-vendees had appeared and their
attendance was recorded by the SubRegistrar, Baghpat on 15.09.1995.

26. It is urged that the Lower
Appellate Court has also recorded a finding
of fact that the plaintiff-vendees were ready
and willing to perform their part of the suit
agreement. The learned Counsel for the
plaintiff-vendees has relied upon the
decision of the Supreme Court in Official
Liquidator, Supreme Bank Ltd. v. P.A.
Tendolkar (dead) by LRs and others5
and further upon the authority of their
Lordships in P. Purushottam Reddy and
another vs. Pratap Steels Ltd.6 It is
submitted by Ms. Pooja Agarwal that
failure to frame a specific issue on
''readiness' and ''willingness', may be an
irregularity, but in a case like the one here,
where both parties have led oral and
documentary evidence, bearing on the issue
directly, which has been adjudicated by
both Courts of fact below, the decree of
specific performance, resultant on those
findings, cannot be held vitiated.

27. This Court has given a thoughtful
consideration
to
the
very
detailed
submissions addressed by both the learned
Counsel.

28. It is true that generally, in a suit
for specific performance, an issue about
readiness and willingness ought to be
framed so that parties lead evidence in
support of and against the case. The
substantial requirement, however, is that
the plaintiff-vendees, who seek relief of
specific performance of contract must aver
and prove their readiness and willingness to
perform
their
part
of
the
contract
throughout from the date the performance
falls due under the contract and until the
decree is passed. If the parties go to trial,
conscious of the other side's case and
wholesomely lead evidence on the point of
readiness and willingness, mere failure to
formally frame an issue about readiness
and willingness would not be fatal.

29. The submissions of the learned
Counsel for the defendants that ''readiness'
and ''willingness' is an issue that is
imperative to frame, draw support from the
following remarks of the Karnataka High
Court in Channayya (supra):

"9. It is well-settled that in a suit
for specific performance, the person who is
seeking specific performance should 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 which has been
prevented or waived by the defendant, in
view of the provisions of Section 16(c) of
the Act and in the absence of proof of the
said fact, specific performance of the
contract cannot be enforced in favour of the
person seeking specific performance. It is
clear from the issues framed by the Trial
Court that no specific issue has been
framed
regarding
the
readiness
and
willingness on the part of the plaintiff in
performing his part of the contract.
Similarly, the first Appellate Court has also
not framed any point for determination
regarding the readiness and willingness on
the part of the plaintiff in performing his
part of the contract. However, both the
Courts below have proceeded on the basis
that in view of the fact that Rs. 7,162-50
Ps., was paid in the execution of the decree
in O.S. No. 181 of 1980, the plaintiff has
paid the consideration amount. The said
210 INDIAN LAW REPORTS ALLAHABAD SERIES
reasoning of the Courts below without
framing an issue or point for determination
regarding the readiness and willingness on
the part of the plaintiff in performing his
part of the contract and without considering
the question as to whether it was stipulated
in the agreement of sale that the plaintiff
should pay the amount due to the Bank and
as to whether the said payment of Rs.
7,162-50 Ps., is pursuant to the agreement
of sale, is erroneous and cannot at all be
sustained. The decisions relied upon by the
Courts below lay down that if the plaintiff
was ready and willing to perform his part
of the contract, he is entitled to decree for
specific performance and readiness and
willingness cannot be treated as a straitjacket formula and the same have to be
determined from the entirety of facts and
circumstances relevant to the intention and
conduct of party concerned and when the
entire consideration amount has been paid
after obtaining receipt of last payment,
necessary allegations have to be presumed
and literal compliance of language of
provision of Section 16(c) of the Specific
Relief Act is not imperative. However, in
view of the fact that both the Courts below
have not framed any issue or point for
determination regarding readiness and
willingness on the part of the plaintiff in
performing his part of the contract, it is
clear that they were not justified in
decreeing the suit of the plaintiff without
framing an issue on the said condition
precedent required to be satisfied for
entitlement
of
decree
for
specific
performance, which has caused prejudice to
the defendant as parties have not led any
evidence
regarding
the
said
issue.
Therefore, it is clear that the substantial
question of law has to be answered in the
affirmative by holding that the Courts
below were not justified in decreeing the
suit of the plaintiff for specific performance
without framing an issue or point for
determination regarding the readiness and
willingness on the part of the plaintiff in
performing his part of the contract in the
absence of any issue and finding on the
basis of the evidence led on the said issue,
it is clear that the decree passed for specific
performance cannot be sustained in view of
the provisions of Section 16(c) of the
Specific Relief Act............"

30. The principle in Channayya has
been laid down in the context that on
account of the failure of the Trial Court to
frame an issue regarding readiness and
willingness, prejudice had been caused to
the defendants, as parties did not lead any
evidence regarding the said issue. This is
not the case here. The Court has framed
Issue
No.1
in
the
following
terms
(translated into English from Hindi):

"1. Whether the plaintiff are
entitled to get a sale deed executed in their
favour on the basis of a disputed agreement
to sell dated 15.06.1994 as pleaded in
plaint?"

31. This issue has been tried together
with Issue No.7. The Trial Court on this
issue
has
recorded
a
finding
about
readiness and willingness of the plaintiffvendees and the circumstances attending it
in the following words:

"उक्त
मुिायदाबय
में
सदनांक
15.9.95 तक प्रश्नगतु् 3 ब़ीघे कच्च़ी जम़ीन का
बैनामा िवर ससंि को वाद़ीगण के पक्ष में कर
देना र्था। िवर ससंि ने उक्त जम़ीन का बैनामा
वाद़ीगण के पक्ष में करने िेतु कि़ी कोई इच्छा
जासिर नि़ीं क़ी सजसके कारण सदनांक 14.8.95
को अपने असधवक्ता के माध्यम से वाद़ीगण ने
नोसिस िवर ससंि को प्रेसषत सकया सजसक़ी प्रसत
4 All. Babu Ram & Ors. Vs. Om Singh & Anr.
211
प्रदशा क-1 को साक्ष़ी ओम ससंि बतौर प़ी.डब्लू.1
ने ससद्ध सकया िै। उक्त नोसिस िवर ससंि को
िेज़ी गई सजसक़ी रस़ीद शासमल समशल िै।
उक्त नोसिस िवर ससंि को प्राि हुआ सजसक़ी
बावत शासमल समशल 11ग िै। सजसे ओम ससंि
साक्ष़ी ने अपऩी मुख्य पऱीक्षा में तसद़ीक सकया
िै। इस साक्ष़ी ने बतौर प़ी.डब्लू. 1 अपऩी मुख्य
पऱीक्षा में किा िै सक यि एग्ऱीमेंि सदनांक
15.9.95 तक हुआ र्था। इस ब़ीच में मेरे िक में
बैनामा नि़ीं सकया तो मैंने एक नोसिस सदनांक
14.8.95 को चश्मव़ीर एडवोकेि बागपत द्वारा
सदलवाया। इस गवाि ने कागज संख्या 9ग को
देिकर किा सक यि वि़ी नोसिस िै सजसे उसने
अपने असधवक्ता से सदलाया र्था सजसे उन्हें
सलिते-पढते देिा िै और उसे तसद़ीक सकया।
यि नोसिस िवर ससंि को प्राि हुआ।"

32. It has been recorded by the Trial
Court in its finding on Issues Nos.1 and 2
thus:

"प्रसतवादपत्र क़ी धारा 17 में किा
गया िै सक कसर्थत इकरारनामे के सवषय में उसने
नोसिस नि़ीं िेजा। परन्तु उक्त नोसिस के फजी
िोने क़ी बावत उसने कोई ि़ी उल्लेि कि़ीं नि़ीं
किा। वाद़ीगण द्वारा उसे प्राि प्रसतवाद़ी सं0 1
का उन्होंने पेपर संख्या 12ग को तस्द़ीक सकया
िै सक उक्त नोसिस उनके नोसिस सदनांसकत
14.08.95 के उत्तर में उन्हें प्राि हुआ र्था। उक्त
नोसिस के द्वारा उन्होंने प्रसतवाद़ी सं0 1 से यि
अपेक्षा क़ी र्थ़ी सक सदनांक 15.09.95 को रसजस्ट्ऱी
ऑसफस में आकर प्रश्नगत िूसम का बैनामा कर
दें सजसक़ी बावत इकरारनामा प्रदशा क-2 में तय
पाया गया र्था। सदनांक 15.09.9 को वाद़ीगण
सबरसजस्ट्रार कायाालय में उपण्डस्र्थत हुए, उन्होंने
अपऩी िासजऱी दजा कराय़ी सजसक़ी बावत प्रलेि
प्रदशा क-3 व प्रदशा क-4 सनष्पासदत सकया गया।
प्रलेि प्रदशा क-3 व प्रदशा क-4 सदनांक 15.6.94
को उपसनबन्धक बागपत में रसजस्ट्डा कराई गई
सजससे ससद्ध िोता िै सक ओम ससंि व
जयिगवान
प्रश्नगतु्
सववासदत
संपसत्त
का
इकरारनामा मिायदा बय सदनांक 15.6.96 के
आधार पर बैनामा कराने िेतु उपण्डस्र्थत रिें।
परंतु प्रसतवाद़ी सं0 1 उपण्डस्र्थत नि़ीं हुआ। ओम
ससंि वाद़ी बतौर साक्ष़ी प़ी.डब्लू.1 ने अपऩी मुख्य
पऱीक्षा में किा िै सक सदनांक 15.9.95 को िम
रसजस्ट्ऱी बागपत गए और िवर ससंि का इंतजार
करते रिे। जब वि नि़ीं आया तो िमने रसजस्ट्ऱी
में अपऩी िासजऱी कराई। पिले 11-12 बजे
कराय़ी सफर 3 बजे कराय़ी। इस साक्ष़ी का कर्थन
सक उसके द्वारा दाण्डिल प्रलेि प्रदशा-3 व प्रदशा-
4 से ि़ी ससद्ध िोता िै सक वि प्रश्नगत िूसम क़ी
रसजस्ट्ऱी कराने सदनांक 15.8.94 को उपसनबंधक
कायाालय में उपण्डस्र्थत हुआ, सजस सदन उक्त
इकरारनामा क़ी समयाद ित्म िो रि़ी र्थ़ी। परंतु
िवर ससंि रसजस्ट्ऱी कराने उपण्डस्र्थत नि़ीं हुआ।
उक्त इकरारनामे के आधार पर अपऩी िासजऱी
क़ी बाबत सनष्पासदत प्रदशा-3 व प्रदशा-4 प्रलेिों
से यि स्पष्ट िोता िै सक वाद़ीगड िमेशा बैनामा
कराने के सलए इच्छुक रिे। परंतु िवर ससंि
बैनामा कराने िेतु सबरसजस्ट्रार कायाालय
बागपत में उपण्डस्र्थत नि़ीं हुआ। जबसक उसके व
वाद़ी गण के मध्य 5,000/- रुपये प्रसतफल क़ी
धनरासश प्राि करते हुए सदनांक 15.6.94 को
इकरारनामा में मुिायदा बय उपसनबंधक
कायाालय में पंज़ीकृत हुई र्थ़ी, सजसक़ी समयाद
सदनांक 15.9.95 तक र्थ़ी। इस प्रकार सदनांक
15.9.95 सतसर्थ तक वाद़ीगण उक्त संपसत्त के
बैनामा कराने के िमेशा इच्छुक रिे और वि
प्रश्नगतु् संपसत्त का बैनामा प्रसतवाद़ी सं0-1 से
कराने के िकदार रिे।"

33. In his examination-in-chief, PW-1
Om Singh, who is one of the plaintiffvendees, has testified on oath as follows:

"मैं इस एग्ऱीमेंि वाल़ी जम़ीन को लेने
के सलए सदैव तैयार रिा हं और समय-2 पर इन्हें
212 INDIAN LAW REPORTS ALLAHABAD SERIES
बैनामा करने के सलए ि़ी किता रिा हं तर्था
आज ि़ी बैनामा कराने को तैयार हं।"

In his cross-examination, this
witness has stated about his financial
means on the date he purchased the larger
part of the defendant-vendor's holding, that
is on 15.06.1994, and also on the day that
he went to the Sub-Registrar's office to get
a sale deed executed, after calling upon the
defendant-vendor in terms of the suit
agreement. He has clearly mentioned that
on the date he went to the Sub-Registrar's
office and got his attendance marked, he
had with him a sum of Rs.48,000/- that his
brother had brought along from Delhi.
These facts are recorded in the crossexamination of PW-1, in the followings
words:

"िमारे िक में िवर ससंि का बैनामा 156-94 को हुआ र्था। स्ट्ेि बैंक बागपत में मेरा िाता
िै। िवर ससंि से जो बैनामा िमने सलया र्था उसका
रुपया िमने अपऩी जम़ीन बेच कर सदया र्था। िमाऱी
जम़ीन ढाई लाि क़ी सबक़ी र्थ़ी उतने का ि़ी बैनामा
कराया र्था। सजस सदन िमने बैनामा सकया उस सदन
िमारे पास 212000/- फालतू र्थे। यि किना गलत िै
सक उस रोज िमारे पास सजतने का बैनामा सलया िो
उससे िादा रुपया न िो। िवर ससंि का बैनामा व
मायदा िवर ससंि का एक सदन पिले बैनामा हुआ
सफर उस़ी सदन इकरार नामा हुआ। िम उस सदन ि़ी
तैयार र्थे उसने कि सदया र्था सक बोने को चासिये
कुछ सदन बाद बैनामा करूंगा। रसजस्ट्ऱी िासजऱी पर
िम 43 िजार उसे देने को तर्था 5000/- िचा के लेकर
गए र्थे। उस सदन िम जब जयिगवान, सशवचरण,
व़ीरेंद्र प्ऱीतव गए र्थे। उस सदन 48000/- मेरा िाई
सदल्ल़ी से लाया र्था। िाई इकट्ठे करके लाया र्था। वि
मांग कर लाया र्था या उसके पास र्थे। मुझे उसके
िाते के बारे में नि़ीं पता सकस बैंक में िै।"

34. The aforesaid evidence is eloquent
about the fact that the parties were not at all
prejudiced about the plaintiffs' case of
readiness and willingness for the Trial
Court's failure to specifically frame an
issue, mentioning those words. The parties
went to trial conscious of the case about
readiness and willingness, where evidence
was also led on the point and the plaintiff
and his witnesses were subjected to crossexamination. Therefore, the principles
enunciated in Channayya would not be
attracted at all to the facts here. Likewise,
the decision of the Supreme Court in Atma
Ram (supra) also does not apply to the
facts obtaining here. In Atma Ram, the
remarks of their Lordships bearing on the
point, which the defendants moot, read:

"9.