# Prem Kumar & Ors v. Gurudev Singh & Ors

- **Citation:** (2024) 12 ILRA 111
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-12-11
- **Case number:** Second Appeal No. 694 of 2001
- **Bench:** Kshitij Shailendra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/prem-kumar-ors-v-gurudev-singh-ors-51154
- **Pages:** 16

## Headnote

A. Civil Law - Unregistered Agreement for
Sale - Effect - Registration Act, 1908 -
Transfer of Property Act, 1882 - Sections
3, 49 & 54 - U.P. Civil Laws (Reforms and
Amendment) Act, 1976 (U.P. Act No. 57 of
1976) came into force w.e.f. 1-1-1977.
Issue: Whether an unregistered document
for sale of an immovable property could
be
enforced
in
a
suit
for
specific
performance?
Whether
a
decree
for
specific
performance
based
upon
an
unregistered
agreement
for
sale
is
sustainable?
Held:
From
a
combined
reading of Sections 3, 4, and 54 of the Act
of 1882 and Section 17 of the Act of 1908,
as applicable to the State of U.P., as
amended by U.P. Act 57 of 1976, it is clear
that
every
contract
of
sale
of
an
immovable
property
situated
in
any
district of U.P. shall be made only by a
registered instrument w.e.f. 1-1-1977.
Prior to 01.01.1977, an unregistered
contract for sale qua immovable property
situated in U.P. could be enforced in a suit
for specific performance of a contract, but
after the amendment in Section 49 of the
Registration Act w.e.f. 01.01.1977, an
unregistered
agreement
cannot
be
enforced in a suit for specific performance
of a contract nor can it be read in
evidence.
In
the
instant
case
the
unregistered AFS, though executed in
Jalandhar, State of Punjab, but being in
respect of immovable property situated in
Meerut, i.e., State of U.P., and after the
coming into force of the amendments
incorporated by U.P. Act No. 57 of 1976,
was clearly inadmissible in evidence, and
no decree for specific performance could
be drawn on that basis. Decree based
upon
an
unregistered
AFS
dated
31.05.1977 not according to law. (Para
24, 26, 27)

B. Specific Relief Act, 1963 - Section 16 -
Suit for specific performance - Pleadings
and Proof - Order VI Rule 3, Appendix A,
Forms 47 and 48 - Forms 47 and 48 of
Appendix A to the CPC. provide for
making an averment that the plaintiff "has
been and still is ready and willing
specifically to perform the agreement on
his part" or that "the plaintiff is still ready
and willing to pay the purchase money of
the said property to the defendant".
Specific performance of a contract cannot
be enforced in favour of person who fails
112 INDIAN LAW REPORTS ALLAHABAD SERIES
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
- Meaning of expression 'ready' and
'willing' - 'ready' is preparedness for the
moment or to be equipped with what is
needed;
whereas
'willing'
denotes
inclination to do a thing voluntarily or
without reluctance. Expression "ready and
willing" implies capacity to act as well as
inclination to do a thing. Court while
deciding the question of "readiness and
willingness"
has
to
focus
on
the
maintained continuity or discontinuity as
regards
"readiness
and
willingness".
(Para 34, 35)
C. Specific Relief Act, 1963 - Section 16 -
Suit for specific performance - Agreement
For Sale was

## Text

_Characters 0–39,763 of 53,156. This is a partial read: ask again with offset=39763 for what follows._

12 All. Prem Kumar & Ors. Vs. Gurudev Singh & Ors.
111
XXXIX Rule 2-A CPC, accordingly stands
disposed off.

59. The second appeal succeeds and stands
ALLOWED with above observations and
directions. The impugned judgment and order
dated 19.12.1979 pronounced and passed by
learned Munsif, Meerut Court No.12 in Original
Suit No.625 of 1971 (Subhash Chand and others
vs. Jetha Nand and others) as well as judgment
and order dated 25.03.2000 pronounced and
passed by Vth Additional District Judge, Meerut
in Civil Appeal No.641 of 1979 (Shiv Charan
Dass and others vs. Subhas Chand and others) and
the decree drawn on that basis are hereby SET
ASIDE. The Original suit stands DISMISSED.

60. A copy of this judgment may also be
filed by the appellants before the SubRegistrar concerned in order to make
necessary endorsements in the concerned
records in terms of Section 31 of the Specific
Relief Act, 1963.
----------
(2024) 12 ILRA 111
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 11.12.2024

BEFORE

THE HON'BLE KSHITIJ SHAILENDRA, J.

Second Appeal No. 694 of 2001

Prem Kumar & Ors. ...Appellants
Versus
Gurudev Singh & Ors. ...Respondents

Counsel for the Appellants:

Counsel for the Respondents:

A. Civil Law - Unregistered Agreement for
Sale - Effect - Registration Act, 1908 -
Transfer of Property Act, 1882 - Sections
3, 49 & 54 - U.P. Civil Laws (Reforms and
Amendment) Act, 1976 (U.P. Act No. 57 of
1976) came into force w.e.f. 1-1-1977.
Issue: Whether an unregistered document
for sale of an immovable property could
be
enforced
in
a
suit
for
specific
performance?
Whether
a
decree
for
specific
performance
based
upon
an
unregistered
agreement
for
sale
is
sustainable?
Held:
From
a
combined
reading of Sections 3, 4, and 54 of the Act
of 1882 and Section 17 of the Act of 1908,
as applicable to the State of U.P., as
amended by U.P. Act 57 of 1976, it is clear
that
every
contract
of
sale
of
an
immovable
property
situated
in
any
district of U.P. shall be made only by a
registered instrument w.e.f. 1-1-1977.
Prior to 01.01.1977, an unregistered
contract for sale qua immovable property
situated in U.P. could be enforced in a suit
for specific performance of a contract, but
after the amendment in Section 49 of the
Registration Act w.e.f. 01.01.1977, an
unregistered
agreement
cannot
be
enforced in a suit for specific performance
of a contract nor can it be read in
evidence.
In
the
instant
case
the
unregistered AFS, though executed in
Jalandhar, State of Punjab, but being in
respect of immovable property situated in
Meerut, i.e., State of U.P., and after the
coming into force of the amendments
incorporated by U.P. Act No. 57 of 1976,
was clearly inadmissible in evidence, and
no decree for specific performance could
be drawn on that basis. Decree based
upon
an
unregistered
AFS
dated
31.05.1977 not according to law. (Para
24, 26, 27)

B. Specific Relief Act, 1963 - Section 16 -
Suit for specific performance - Pleadings
and Proof - Order VI Rule 3, Appendix A,
Forms 47 and 48 - Forms 47 and 48 of
Appendix A to the CPC. provide for
making an averment that the plaintiff "has
been and still is ready and willing
specifically to perform the agreement on
his part" or that "the plaintiff is still ready
and willing to pay the purchase money of
the said property to the defendant".
Specific performance of a contract cannot
be enforced in favour of person who fails
112 INDIAN LAW REPORTS ALLAHABAD SERIES
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
- Meaning of expression 'ready' and
'willing' - 'ready' is preparedness for the
moment or to be equipped with what is
needed;
whereas
'willing'
denotes
inclination to do a thing voluntarily or
without reluctance. Expression "ready and
willing" implies capacity to act as well as
inclination to do a thing. Court while
deciding the question of "readiness and
willingness"
has
to
focus
on
the
maintained continuity or discontinuity as
regards
"readiness
and
willingness".
(Para 34, 35)
C. Specific Relief Act, 1963 - Section 16 -
Suit for specific performance - Agreement
For Sale was dated 31.05.1977. Date fixed
for execution of the sale deed was
15.07.1977. On 14.07.1977, the plaintiff
tendered balance sale price. Through a
telegram
dated
11.07.1977,
plaintiff
intimated the defendants that the plaintiff
would
reach
on
14.07.1977
for
registration of sale deed. On 15.07.1977,
the plaintiff waited for the defendants
before
the
competent
registering
authority at Meerut but defendants did
not appear to execute the sale deed. On
29.05.1979, the plaintiff sent a notice
calling upon the defendant to pay a sum of
Rs. 55,000/-. Suit instituted in Jalandhar
on 27.05.1982. Plaint was returned and
was presented on 30.05.1982 before the
civil court, Meerut. In 'paragraph 8' of the
plaint read as under:- "8. That the
plaintiff was and is still ready to pay the
balance purchase money of the said
property to the defendants." Held: Court
held that the pleadings contained in the
plaint were not strictly in consonance with
the prescribed Forms 47 and 48 of
Appendix A to the CPC and lacked the
necessary averment of 'willingness' of the
plaintiff to carry out his obligation as per
the agreement. Nothing was done by the
plaintiff from 15.07.1977 till 28.05.1979,
i.e. for about two years in the direction of
getting the sale deed executed though the
date fixed for performance had passed
away. Notice dated 29.05.1979 does not
raise a demand for executing the sale
deed. It showed that the plaintiff was
neither ready nor willing to get the sale
deed executed but was interested in
refund of money only. Plaintiff's case of
readiness and willingness was neither
pleaded nor proved. (Para 34, 35, 39, 41)

D. Civil Law - Specific Relief Act - suit for
specific performance - Evidence led by
power of attorney holder - Specific Relief
Act,
1963,
S.
16
-
"readiness
and
willingness" - Issue: Whether evidence led
by power of attorney holder in respect of
matters which were not in his personal
knowledge
could
suffice
granting
a
decree? Held: If a plaintiff, in a suit for
specific performance, is required to prove
that he was always ready and willing to
perform his part of the contract, it is
necessary for him to step into the
witness box and depose the said fact
and
subject
himself
to
crossexamination on that issue. A plaintiff
cannot examine in his place, his attorney
holder
who
did
not
have
personal
knowledge either of the transaction or
of his readiness and willingness. A third
party having no personal knowledge
about
the
transaction
cannot
give
evidence
about
the
readiness
and
willingness.
Plaintiff
did
not
make
attempt to prove his plaint case and
though the attorney was real brother of
plaintiff, that was not sufficient to prove
continuous "readiness and willingness"
on the part of the plaintiff to get the
sale deed executed. A very heavy burden
was upon the plaintiff to establish at
least
five
years
of
readiness
and
willingness i.e. since 1977 to 1982 but
evidence to that effect lacked. (Para 40)

Allowed. (E-5)
List of Cases cited:
1. Surendra Kumar Vs Amarjeet Singh & ors.,
2004 (4) AWC 3134 All
2. Vijay Kumar Sharma Vs Devesh Behari
Saxena, AIR 2008 All 66
12 All. Prem Kumar & Ors. Vs. Gurudev Singh & Ors.
113
3. K. Arumuga Velaiah Vs P.R. Ramasami & ors.,
(2022) 3 SCC 757
4. K.Nanjappa (Dead) by Lrs. Vs R.A. Hameed
@ Ameersab (Dead) by Lrs. & anr., (2016) 1
SCC
5. Ram Singh Vs Sughar Singh, 2010 (6) AWC
6331
6. Manisha Mahendra Gala & ors. Vs Shalini
Bhagwan Avatramani & ors., (2024) 6 SCC 130
7. Rajesh Kumar Vs Anand Kumar & ors., 2024
(4) AWC 3271
8. Janki Vashdeo Bhojwani & anr. Vs Indusind
Bank Ltd. & ors., (2005) 2 SCC 217
9. Man Kaur Vs Hartar Singh Sangha, (2010) 10
SCC 512
10. A.C. Narayanan Vs St. of Mah. & anr.,
(2014) 11 SCC 790
(Delivered by Hon'ble Kshitij Shailendra, J.)

1. The instant second appeal at the
instance of defendants of Original Suit
No.169 of 1983 (Gurudev Singh v. Prem
Kumar and others) arises from a suit for
specific performance of an unregistered
Agreement for Sale (in short 'AFS') in
relation to an immovable property situated
in District Meerut. The trial court decreed
the suit by judgment and order dated
20.10.1997, against which, the defendants
filed Civil Appeal No. 84 of 1997 (Prem
Kumar Sachdeva and another v. Gurudev
Singh) which met the fate of dismissal by
judgment and decree dated 25.01.2001.

Brief facts of the case

2. One Gurudev Singh instituted the
suit in question, initially at Jullundur (now
known as Jalandhar), State of Punjab,
where it was registered as Original Suit
No.26 of 1980. Decree was claimed against
three defendants on the basis of AFS dated
31.05.1977 qua land bearing Khasra Nos.
1035 and 1049 situated at Village Ghat,
Pargana, Tehsil and District Meerut on the
plea that defendants No.1 and 2 had
executed a registered power of attorney
dated 24.04.1977 in favour of defendant
No.3- Puran Chand Sachdeva (in short
'PCS') authorizing him to enter into an
AFS. An agreement was, accordingly,
executed by the Attorney and a sum of
Rs.55,000/- was received by the defendants
in advance as part of sale consideration and
he agreed to pay the balance amount before
the competent registering authority at the
time of registration of sale deed. The date
fixed for execution of the sale deed was
pleaded as 15.07.1977. It was stated in the
plaint that on 14.07.1977, the plaintiff
tendered balance sale price amounting to
Rs.1,42,014/- besides cost of stamp and
registration
expenses
and
through
a
telegram dated 11.07.1977, he intimated
the defendants that the plaintiff would
reach Meerut on 14.07.1977 for registration
of sale deed and the defendants should keep
ready the income tax certificate. When, on
15.07.1977, the plaintiff waited for the
defendants before the competent registering
authority at Meerut but defendants did not
appear to execute the sale deed, the suit
was filed. The cause of action was alleged
to have accrued on 31.05.1977 at Jalandhar
and, then, on 15.07.1977.

3. The defendants No.1 and 2, i.e. the
appellants herein, filed written statement
taking a ground that power of attorney
dated 23.05.1977 executed in favour of
defendant No.3 had been cancelled on
25.05.1977, publication in respect whereof
was made in daily newspaper Dainik
Prabhat on 26.05.1977 and, therefore, the
114 INDIAN LAW REPORTS ALLAHABAD SERIES
Attorney did not remain competent to
execute an agreement or to receive advance
money.
Regarding
execution
of
the
agreement, it was pleaded that someone
had made defendant No.3 to drink in
Jalandhar, he did not remain in his senses
and execution of the agreement was the
result of such mischief.

Trial Court's Judgment

4. The trial court, after recording a
finding that defendant Nos.1 and 2 had
admitted execution of power of attorney in
favour of defendant No.3 who failed to
prove its due cancellation, the defendant
No.3 was competent to execute an
agreement. It disbelieved the defence and
held the agreement as a duly proved
document. As far as the question of
"readiness and willingness", the trial court
recorded that plaintiff had successfully
established the said component by not only
reaching the Sub Registrar's office on
15.07.1977 but also by opening a bank
account on 14.07.1977 and depositing the
money therein for the purposes of making
payment to the appellants. When the plea
was taken by the appellants as regards nonmaintainability of the suit for want of
registration
of
AFS,
the
trial
court
discarded the said objection by observing
that since the agreement was executed in
Jalandhar, i.e the State of Punjab, there
being no requirement of registration in
Punjab, merely because the property is
situated in the State of U.P., the agreement
could not be discarded.

Appellate Court's Judgment

5. The defendant appellants filed Civil
Appeal No.84 of 1997 that was also
dismissed by the first appellate court on
25.01.2001 simply confirming the decision
of the trial court.

Return of Plaint from Punjab to U.P.

6. A significant feature of this case is
that the suit was filed in Jalandhar, State of
Punjab where an issue was framed
regarding territorial jurisdiction of Punjab
Court. The issue was decided in favour of
the defendants and, consequently, the plaint
was returned for being presented before the
competent court at Meerut. Consequently,
the plaint was represented before Civil
Court, Meerut where it was numbered as
Original Suit No.169 of 1983.

Admission Order

7. The instant second appeal was
admitted by order dated 10.05.2001 on the
following single question:-

"Whether the Trial Court and
Lower Appellate Court wrongly held that
provisions of Section 17(1) of Indian
Registration Act are not applicable to the
agreement in question?"

8. However, recently, Civil Misc.
Application No. 32 of 2024 was filed by
the appellants with a prayer to add three
more questions of law and to hear the
appeal on those questions too. This Court,
by order dated 15.07.2024, disposed off the
said application with the observation that
by virtue of power conferred upon this
Court under sub-Section (5) of Section 100
Civil Procedure Code, 1908, the appeal can
be heard on additional questions also with a
further observation that the additional
questions of law pressed by the appellants
shall be considered at the time of final
hearing of appeal and it would be open for
12 All. Prem Kumar & Ors. Vs. Gurudev Singh & Ors.
115
the respondents side to argue that such
questions do not arise for consideration.

Substantial questions of law reframed
and added

9. The appeal was heard at length and
during the course of hearing and based
upon the arguments advanced by both the
sides, this Court proceeds to hear instant
appeal on following substantial questions
of law:-

(i). Whether a decree for specific
performance based upon an unregistered
agreement for sale dated 31.05.1977 is at
all sustainable?

(ii).
Whether
the
plaintiffrespondents utterly failed to aver and prove
"readiness and willingness" as regards
execution of the sale deed as per
parameters of law recognized by Civil
Procedure Code, 1908 and Specific Relief
Act, 1963?

(iii). Whether evidence led by
power of attorney holder in respect of
matters which were not in his personal
knowledge
could
suffice
granting
a
decree?"

Learned Counsel heard

10. Heard Sri Pramod Kumar Jain,
learned Senior Counsel assisted by Mr.
Sanjay Agrawal, for the appellants and Sri
Rakesh Pandey, learned Senior Counsel
assisted by Sri Jyoti Kumar Singh, Ms.
Vishakha Pandey, Sri Adarsh Kumar &
Ms. Krishna Shukla for the contesting
respondents.

Appellants' arguments

11. Assailing the validity of the
impugned decree(s), Shri Pramod Kumar
Jain, learned counsel vehemently argued that
the AFS dated 31.05.1977, being an
unregistered document, in view of the
amendments made in the Transfer of
Property Act, 1882 (hereinafter referred to as
'the Act of 1882') as well as Registration
Act, 1908 (hereinafter referred to as the Act
of 1908), suit could not be decreed and both
the courts below have grossly erred in this
regard; that the plaintiff utterly filed to
specifically aver and prove "readiness and
willingness" on his part to get the sale deed
executed and the pleadings contained in
paragraph No.8 of the plaint are not in
consonance with Section 16 (c) of the
Specific Relief Act, 1963 (hereinafter
referred to as 'the Act of 1963') read with
Order VI Rule 3, Appendix A, Forms 47 and
48; that the suit was instituted in the year
1980 in Jalandhar, the plaint was returned on
27.08.1982, the suit was re-registered before
the Civil Court, Meerut on 30.08.1982 and,
just before that, the plaintiff Gurudev Singh
executed a power of attorney in favour of
Gurubaksh Singh on 27.05.1982 and since
the plaintiff did not appear in witness box, the
oral testimony of attorney Gurubaksh Singh
would not suffice proving "readiness and
willingness" of the plaintiff, inasmuch as, in
order to succeed in his claim, a plaintiff has
to establish before the civil court that he was,
is and has been ready and willing to get the
sale deed executed right from the date of
execution of the agreement or the date fixed
for performance of the agreement till the
decree is drawn. Submission is that attorney
Gurubaksh Singh did nothing nor could he do
anything
to
establish
readiness
and
willingness since 1977 till 1982 i.e. for a
period of five years and, hence, the courts
below have wrongly treated the claim for
specific performance as proved.

12. Assailing the finding of the courts
below that there was no requirement of
registration in the State of Punjab, Shri Jain
116 INDIAN LAW REPORTS ALLAHABAD SERIES
vehemently argued that as per Section 17
read with Section 49(c) of the Act of 1908
and Section 54 of the Act of 1882, as
applicable in the State of U.P. after
amendments incorporated by U.P. Act
No.57 of 1976, since the property is
situated in Meerut, i.e. the State of U.P., if
the plaintiff wanted the Court to receive
and read the agreement in evidence, he
should have got the agreement re-registered
in U.P. in terms of Sections 23, 24 and 25
of the Act of 1908 and, in the event of
refusal by the Registrar to re-register the
agreement, the plaintiff had a remedy of
filing appeal under Section 72 of the Act of
1908 but he, having done nothing and
having continued to press his claim based
upon an unregistered agreement, the suit
was bound to fail. Shri Jain pressed various
statutory provisions during the course of
arguments and placed reliance upon various
authorities out of which relevant authorities
shall be discussed hereinlater.

13. Shri Jain also argued that on
29.05.1979, the plaintiff sent a notice
(Paper No.17-Ka, Ex. P9) calling upon the
defendant to pay a sum of Rs.55,000/-
alongwith cost of notice within one month
with a clear stipulation that, in default, suit
for recovery of the said amount would be
filed in civil court at Jalandhar. Submission
is that two years after the date fixed for
execution of the sale deed, when the
plaintiff did not issue notice calling upon
the defendants to execute the sale deed but
pressed his claim for refund of money paid
to the defendants' attorney, the notice, in
itself, establishes that the plaintiff was
neither ready nor willing to get the sale
deed executed but was interested in refund
of money only.

Respondents' Arguments

14. Per contra, Shri Rakesh Pandey,
learned
Senior
Counsel
vehemently
opposed all the submissions advanced by
Shri Jain and submitted that once the
defendants No.1 and 2 admitted execution
of power of attorney in favour of the
defendant No.3.- 'PCS', and failed to
establish due cancellation thereof, they
cannot
raise
any
challenge
to
the
competence of the attorney PCS; there
being no bar under the law restraining
execution of agreement at any place in
India, since the agreement was executed in
the State of Punjab where there is no
requirement of registration, it was neither
necessary to get the agreement re-registered
in U.P. nor could the suit fail for want of
registration. He further submitted that since
the defendants No.1 and 2 denied execution
of the agreement or atleast its due
execution, the Registrar was bound to
refuse to register the document as per
Section 35 of the Registration Act, 1908
and, for this reason, any exercise suggested
by Shri Jain to get the agreement reregistered would have been a futile
exercise. Further submission is that since
the document formed part of record of the
suit proceedings , the plaintiff could not
take it back from the civil court for the
purposes of re-registration as the executant
of the document was defendant No.3 and
not the plaintiff.

15. As regards the amended provisions
of Act of 1908 and Act of 1882, Shri
Pandey, by referring to Section 17(1)(b) of
the Act of 1908, submitted that agreement
by itself does not create, declare, assign,
limit or extinguish any right, title or interest
in an immovable property and, therefore, it
need not be registered. He vehemently
argued that the only right created by an
agreement in favour of a proposed
transferee is the right to get the sale deed
12 All. Prem Kumar & Ors. Vs. Gurudev Singh & Ors.
117
executed, which cannot be termed as a right
in immovable property. He took aid of
Section 54 of the Act of 1882 and
submitted that a contract for sale, by itself,
does not create any interest in or charge on
immovable property and even the amended
provisions would not come in the way of
the plaintiff. By referring to Section
17(2)(v) of the Act of 1908, it was argued
that requirements of sub-Section (1)
Clauses (b) and (c) of Section 17 would not
apply to any document other than contract
for sale and such an exemption does not
give rise to a legal necessity to get the
contract for sale registered, inasmuch as,
Clause (v) of sub-Section (2) would again
relate back to Section 17(1)(b) and,
therefore, it would again have to be seen as
to whether contract for sale, in itself, would
create, declare, assign, limit or extinguish,
whether in present or in future any right,
title or interest to or in immovable property
and once, it does not, there is no
requirement of its registration.

16.
As
regards
"readiness
and
willingness", Shri Pandey urged that when
the date for execution of sale deed was
fixed as 15.07.1977 and time was the
essence of contract, since the plaintiff has
successfully established that he came all
through from Jalandhar to Meerut on
14.07.1977, opened a bank account in his
name, deposited the balance amount
required to be paid to the defendants No.1
and 2, presented himself before the Sub
Registrar on 15.07.1977, "readiness and
willingness" was well established and
nothing more was required for decreeing
the suit. As regards competence of
Gurubaksh Singh to prove the plaintiff's
case, Shri Pandey submitted that he was
real brother of plaintiff-Gurudev Singh and
his testimony could not be discarded
merely because he was also an attorney and
plaintiff did not appear in witness box. He
also submitted that law recognises oral
transfer and oral understanding regarding
transaction
of
sale
and,
therefore,
registration or non-registration of the
agreement would be irrelevant in the
instant
case,
particularly
when
the
appellants'
attorney
PCS
acted
in
furtherance of the power attorned upon
him.

17. As regards Shri Jain's submission
based upon notice 17-Ka, it was argued that
sending
a
notice
calling
upon
the
defendants to execute a sale deed, not being
a pre-requisite of institution of suit for
specific performance, merely because the
plaintiff sent notice 17-Ka asking the
defendants to refund the advance money to
the plaintiff, this, in itself, does not mean
that plaintiff lost his claim for getting the
sale
deed
executed
and
the notice,
therefore, does not amount to either waiver
or relinquishment of right to get the sale
deed executed. Shri Pandey, in support of
his submissions placed reliance upon
various authorities relevant of which shall
be discussed hereinlater.

Analysis of Rival Contentions

Re:- First Question:- Whether a
decree for specific performance based
upon an unregistered for sale dated
31.05.1977 is at all sustainable?

18. In view of the questions framed by
this Court, it is not necessary to comment
upon requirement or no requirement of
getting the AFS re-registered in the State of
U.P. and whether the plaintiff was obliged
or not obliged to do that, is irrelevant as the
Court has to examine validity of the decree
based
upon
unregistered
agreement,
118 INDIAN LAW REPORTS ALLAHABAD SERIES
whatever might have been the reason
behind its non-registration.

19.
As
regards
requirement
of
registration of an AFS, it is to note that the
U.P.
Civil
Laws
(Reforms
and
Amendment) Act, 1976 (U.P. Act No. 57 of
1976) came into force w.e.f. 1-1-1977. This
Act amended the Registration Act 1908 as
well as the Transfer of Property Act, 1882,
besides several other enactments. Section
54 of the Transfer of Property Act, 1882, as
applicable to the State of U.P., w.e.f. 1-11977, reads as under:

"Section 54. "Sale" is a transfer
of ownership in exchange for a price paid
or promised or part-paid and part-promised.

Sale how made- Such transfer, in
the case of tangible immovable property
[***], or in the case of a reversion or other
intangible thing, can be made only by a
registered instrument.

Contract of Sale- A contract for
the sale of immovable property is a contract
that a sale of such property shall take place
on terms settled between the parties.

It does not, of itself, create any
interest in or charge on such property.

Such contract can be made only
by a registered instrument."

20. Section 3 of the Transfer of
Property Act, 1882 defines-

"Instrument-
as
a
non
testamentary instrument

"Registered- means registered in
any part of the territories to which this
Act extends under the law for the time
being in force regulating the registration of
documents."

21. Section 17 of the Registration Act,
1908 Act provides that certain documents
are required to be compulsorily registered
and, other documents are exempted from
being registered. Section 17(1)(b) of the
Registration Act, 1908, as applicable in the
State of U.P., reads as under:

"Section 17(1)- The following
documents shall be registered- (1) The
following documents shall be registered, if
the property to which they relate is
situate in a district in which, and if they
have been executed on or after the date on
which, Act No.XVI of 1864, or the Indian
Registration Act, 1877, or this Act came or
comes into force, namely:-

.........................................

(b)
other
non-testamentary
instruments which purport or operate to
create, declare, assign, limit or extinguish,
whether in present or in future, any right,
title
or
interest,
whether
vested
or
contingent to in immovable property."

22. Section 17(2)(v) of the Act of
1908 reads as under:

"Section
17(2)-
Nothing
in
clauses (b) and (c) of sub-section (1)
applies to-

(v) any documents other than
documents specified in sub-section (1-A)]
[other than contract for sale] not itself
creating, declaring, assigning, limiting or
extinguishing any right, title or interest to
or in immovable property, but merely
creating a right to obtain another document
which will, when executed, create, declare,
assign, limit or extinguish any such right,
title or interest; or

The words "other than contract
for sale" occurring in Section 17(2)(v) of
the Registration Act have been inserted by
U.P. Act No. 57 of 1976 w.e.f. 1-1-77.
12 All. Prem Kumar & Ors. Vs. Gurudev Singh & Ors.
119

23. Section 4 of the Transfer of
Property Act, 1882 reads as under:

"4.
Enactments
relating
to
contracts to be taken as part of Contract
Act and supplemental to the Registration
Act. - The chapters and sections of this Act
which relate to contracts shall be taken as
part of the Indian Contract Act, 1872 (IX of
1872).

[And Section 54, Paragraphs 2
and 3, 59, 107 and 123 shall be read as
supplemental to the Indian Registration
Act, 1908 (XVI of 1908).]"

24. Thus, from a combined reading of
Sections 3, 4 and 54 of the Act of 1882
and, Section 17 of the Act of 1908, as
applicable to the State of U.P., as amended
by U.P. Act 57 of 1976, it is clear that
every contract of sale of an immovable
property situated in any district of U.P.
shall be made only by a registered
instrument. Even though a contract for sale
of immovable property does not by itself
create any interest in or charge on such
property and only creates a right to obtain
another
document
which
will,
when
executed, create, declare, assign, limit or
extinguish any such right, title or interest,
nonetheless, the said contract for sale of an
immovable property is required to be
registered in the State of U.P. w.e.f. 1-11977.

25. The next question which arises for
consideration is whether an unregistered
document for sale of an immovable
property, could still be enforced in a suit
for specific performance. At this stage, the
Court may refer to Section 49 contained in
the Registration Act, 1908 alongwith U.P.
Amendments made therein by U.P. Act
No.57 of 1976, w.e.f. 01.01.1977. A careful
perusal of the amendments made would
reflect that certain provisions relating to
admissibility of an unregistered agreement
in a suit for specific performance have been
"omitted" and requirement of registration
has been "inserted." The provision reads as
under:-

Central Act

"49. Effect of non-registration
of documents required to be registered.-
No document required by section 17 [or by
any provision of the Transfer of Property
Act, 1882 (4 of 1882) to be registered shall-

(a)
affect
any
immovable
property comprised therein, or

(b) confer any power to adopt, or

(c) be received as evidence of any
transaction affecting such property or
conferring such power,

unless it has been registered:

[Provided that an unregistered
document affecting immovable property
and required by this Act, or the Transfer of
Property Act, 1882 (4 of 1882), to be
registered may be received as evidence of
a contract in a suit for specific
performance under Chapter II of the
Specific Relief Act, 1877 (3 of 1877) [***]
or as evidence of any collateral transaction
not required to be effected by registered
instrument.]

In Uttar Pradesh:

In Section 49,-

(i) in the first paragraph, after the
words "or by any provision of the Transfer
of Property Act, 1882", insert the words
"or of any other law for the time being in
force";

(ii) for clause (b), substitute the
following clause, namely:-

(b) confer any power or create
any right or relationship, or";
120 INDIAN LAW REPORTS ALLAHABAD SERIES

(iii) in clause (c), after the words
"such power", insert the words "or creating
such right or relationship";

(iv) in the proviso, omit the
words "as evidence of a contract in a suit
for specific performance under Chapter
II of the Specific Relief Act, 1877, or."

[Vide Uttar Pradesh Act 57 of
1976, sec. 34 (w.e.f. 1--1-1977).]"

26. The result of these amendments is,
that, prior to 01.01.1977, an unregistered
contract for sale qua immovable property
situated in U.P. could be enforced in a suit
for specific performance of a contract, but
after the amendment in Section 49 of the
Registration Act w.e.f. 01.01.1977, an
unregistered agreement cannot be enforced
in a suit for specific performance of a
contract nor can it be read in evidence.

27. Reliance placed by Shri Jain on the
judgments
of
Surendra
Kumar
v.
Amarjeet Singh and others, 2004 (4)
AWC 3134 All, Vijay Kumar Sharma v.
Devesh Behari Saxena, AIR 2008 All 66
supports the submissions made by him and,
therefore, it is held that an unregistered
AFS, though executed in Jalandhar, State
of Punjab but being in respect of
immovable property situated in Meerut
i.e. State of U.P. and after coming into
force of the amendments incorporated by
U.P. Act No.57 of 1976 was clearly
inadmissible in evidence and no decree for
specific performance could be drawn on
that basis. Reliance placed by Shri Rakesh
Pandey on the judgment of K. Arumuga
Velaiah v. P.R. Ramasami & others,
(2022) 3 SCC 757 does not help him for
the reason that the Apex Court was dealing
with a case arising from State of Madras
with reference to a different provision
contained under Section 17 of the Act of
1908 and though it was held that the
agreement does not by itself create a right
or interest in immovable property but
merely creates a right to obtain another
document and, therefore, the
former
document does not require registration,
since there was no discussion, nor could
there be, as regards admissibility of an
unregistered
document
executed
after
01.01.1977 in relation to an immovable
property situated in the State of U.P. where,
as aforesaid, such document has been held
to be inadmissible, the ratio of law laid
down by Supreme Court in K. Arumuga
Velaiah (supra), with due respect, does not
apply in the present case.

28.
Similarly,
judgment
of
K.Nanjappa (Dead) by Lrs. v. R.A.
Hameed @ Ameersab (Dead) by Lrs.
and another, (2016) 1 SCC 762 based
upon oral contract would be of no
assistance for the respondents, inasmuch as,
the said case had arisen from State of
Karnataka and the Supreme Court held that
in a case where the plaintiff comes forward
to seek a decree for specific performance
based upon an oral agreement or a written
contract, heavy burden lies on the plaintiff
to prove that there was consensus ad idem
between the parties in the concluded AFS.
The Court may note here that in the instant
case, the agreement was seriously attacked
on by the defendant-appellants and there
was no consensus ad idem between the
parties to the suit. Even otherwise, the plea
of oral transfer based upon Section 9 which
provides that "a transfer of property may be
made without writing in every case in
which a writing is not expressly required by
law" is not available to the respondents
since, in the State of U.P., requirement of
law is that there has to be a written and
duly registered AFS for the purposes of
granting a decree for specific performance.
12 All. Prem Kumar & Ors. Vs. Gurudev Singh & Ors.
121
Hence, the argument based upon oral
contract has no substance.

29. In view of the above, first question
is answered in favour of the defendantappellants and it is held that decree based
upon
an
unregistered
AFS
dated
31.05.1977 is not according to law.

Re: Second and Third Questions:-

"(ii). Whether the plaintiffrespondents utterly failed to aver and
prove "readiness and willingness" as
regards execution of the sale deed as per
parameters of law recognized by Civil
Procedure Code, 1908 and Specific
Relief Act, 1963?

(iii). Whether evidence led by
power of attorney holder in respect of
matters which were not in his personal
knowledge could suffice granting a
decree?"

30. Although the appeal can succeed
only in the light of answer to the first
question, since two more questions have
been framed and require answer in the light
of arguments advanced and also being
necessity of law, the arguments of both
sides on the question of "readiness and
willingness" are being dealt with.

31. It is first necessary to refer Section
16(c) of the Specific Relief Act, 1963
which reads as under:-

"16. Personal bars to relief.-
Specific performance of a contract cannot
be enforced in favour of person-

......

(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 which has been prevented
or waived by the defendant."

32. Simultaneously, Order VI Rule 3
CPC needs reproduction as under:-

"3. Forms of Pleading.-The
forms in Appendix A when applicable, and
where they are not applicable forms of the
like character, as nearly as may be, shall be
used for all pleadings."

33. Corresponding Forms 47 and 48
are also reproduced as under:-

"Form No.47

SPECIFIC
PERFORMANCE
(NO.1)

(Title)

A.B., the above-named plaintiff,
states as follows:-

1. By an agreement dated the day
of and signed by the defendant, he
contracted to buy of [or sell to] the plaintiff
certain
immovable
property
therein
described and referred to, for the sum of
rupees.

2. The plaintiff has applied to the
defendant specifically to perform the
agreement on his part, but the defendant
has not done so.

3. The plaintiff has been and still
is ready and willing specifically to perform
the agreement on his part of which the
defendant has had notice.

[As in paras 4 and 5 of Form
No.1.]

6. The plaintiff claims that the
Court will order the defendant specifically
to perform the agreement and to do all acts
necessary to put the plaintiff in full
possession of the said property [or to accept
a transfer and possession of the said
property] and to pay the costs of the suit.
Form No.48
122 INDIAN LAW REPORTS ALLAHABAD SERIES

Specific Performance (No.2)

(Title)

A.B., the above-named plaintiff,
states as follows:-

1. On the day of 20 , the plaintiff
and defendant entered into an agreement, in
writing, and the original document is hereto
annexed. The defendant was absolutely
entitled
to
the
immovable
property
described in the agreement.

2. On the day of 20 , the plaintiff
tendered rupees to the defendant, and
demanded a transfer of the said property by
a sufficient instrument.

3. On the day of 20 ,the plaintiff
again demanded such transfer [or the
defendant refused to transfer the same to
the plaintiff.]

4. The defendant has not executed
any instrument of transfer.

5. The plaintiff is still ready and
willing to pay the purchase-money of the
said property to
the defendant.

[As in paras 4 and 5 of Form
No.1.]

6. The plaintiff claims-

(1) that the defendant transfers
the said property to the plaintiff by a
sufficient instrument

[following the terms of the
agreement];

(2)
rupees
compensation
for
withholding the same."

34. Section 16(c) of the Act of 1963
postulates that specific performance of a
contract cannot be enforced in favour of a
person 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. It provides for making a
categorical averment about the party's
readiness and willingness to perform his
part of the terms and conditions and also to
prove it. The expression used is "ready and
willing" which is of great significance. It is
a combination of two words 'ready' and
'willing' which may appear to carry the
same meaning but are not synonyms. The
simple dictionary meaning of the word
'ready' is preparedness for the moment or to
be equipped with what is needed; whereas
'willing' denotes inclination to do a thing
voluntarily or without reluctance. So
'readiness' connotes physical state of
affairs and 'willingness' is linked with the
mental state of things. To put it more
lucidly, the expression "ready and willing"
implies capacity to act as well as
inclination to do a thing. Few examples
may illustrate the concept:-

(i) Army may be ready for a war
but may not be willing to go for a war;

(ii) a person may be ready to
establish a new business but not willing to
put his earnings at a risk and;

(iii) on a lighter note relating to
our own institution of justice, a learned
counsel may be fully ready to argue a case
in terms of his preparation but not willing
to argue it before a particular bench.

35.
Now
dealing
with
relevant
provisions of C.P.C., the essentials of
pleadings are provided in Order VI Rule 3
that stipulates that Forms as prescribed
shall be used for all pleadings. Format of
plaints for suits for specific performance of
an agreement is provided in afore-quoted
Forms 47 and 48 of Appendix A to the
CPC. The aforesaid forms clearly provide
for making an averment that the plaintiff
"has been and still is ready and willing
specifically to perform the agreement on
his part" or that " the plaintiff is still ready
and willing to pay the purchase money of
the said property to the defendant". The
12 All. Prem Kumar & Ors. Vs. Gurudev Singh & Ors.
123
aforesaid forms make the requirements
more strict as would be apparent from use
of present perfect tense as well as present
indefinite tense.