# 921 ' OUSEPH VARGHESE v. JOSEPH ALEY & ORS

- **Citation:** [1970] 1 S.C.R. 921
- **Court:** Supreme Court of India
- **Decided:** 1969-08-18
- **Case number:** Civil Appeals Nos. 1782 and 1783 of 1966
- **Bench:** J<. .S. Hegde, A. N. Ray
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/921-ouseph-varghese-v-joseph-aley-ors-4734
- **Pages:** 7

## Headnote

Specific Relief Act 1877 (! of 1877), s. 12-Suit for specific per/or·
mance of oral agral'/'Jtnt to re..convey property sold through sale-deed-
",I
Burden of proof on. plflintiff is heavy-Court will rarely grant specific per-.
.·
formance of contrtICI <Vz the basis of oral evidence only-Offer by de/en- .
dant in written statetnent to sell part of property to plaintiff at certain
price-Offer not ~eptdd by plaintiff-Court can not pass decr_ee in favour
of plaintiff on the basis of such. offer-Costs where both parties
have
withheld facts from Court.
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i
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The plaintiff as' ozl.iinal owner of the suit properties sold the same to
the !st defendant 'lllho ,was husband of the 2nd defendant. According to
the plaintiff apart from the written sale-deed there was an oral agreement
between him and the !st defendant whereunder the latter agrees to reconvey the properties sold at the same price whenever the plaintiff called
upon him to do Sd~ The suit was filed for specific performance of the
said oral agreement The !st defendant
died even before he filed his
written statement. Betilre his death. he had gifted the suit properties to
his wife, the 2rid qefe@ant. In her vritten statement the 2nd defendant
denied the agreement pleaded in the p. \nt but stated that just before his
death her husband \lad agreed to sell to plaintiff item No. I of the suit
property less one ac;e of paddy field for a sum of Rs. 11,500 but due to
his illness the sale rould not be effected. She reiterated the said offer in
her written statement but the plaintiff did not acoept it and the suit proceeded on the basj$ of. the agreement pleaded in the plaint. The trial
court decreed the lillit as prayed for.
In appeal the High Court did not
accept the agreement pleaded by the plaintiff but still
granted a decree
directing the de'fendant to execute a sale deed in favour of the plaintiff
in respect of item No. I of the plaint schedule properties less one acre of
paddy field for a sum of Rs. 11,500.
Both the parties appealed to this
Court.
HELD : (i) '!he burden of proving
the oral agreement was on the
plaintiff. The sale deed on the face of it evidenced an outright sale. The
stipulation in it that the _purchaser would not mortgage or assign the pro--
perties to anyone else dming the vendor's lifetime went against the plain.-
tiff's case ina'Smuch as it-, only gave the vendor a right to pre-empt. There
was no satis'factory e.x~ation why such an important thing as the agree~
ment to re-convey was made orally and not reduced to writing. [923 G,
924 B!
It appeared likO!y in the present case that neither side had come forward with the true version.
But befdre a court can grant a decree for
specific performance, the contract pleaded
must be a specific one and
the same must be established by convincing evidence.
Rarely a decree
for specific performanceiis granted on the basis of an agreement support·
ed solely by ore, evidence. [925 D·El
On the evidence adduced by him tho plaintiff bad failed to prove the
agreement pleaded in the plaint. [925 FJ
(ii) The High Ciqurt.was wrong in passing the decree in respect
of
plaint item No. 1 on th~ basis df the admission of the 2nd defendant in
her written statement. The plaintiff did not at
any stage accept the
922
SUPREME COURT REPORTS
( 1970] 1 S.C.R.
agreement pleaded by the defendant as true. The agreement pleaded by
the plaintiff in his plaint and that pleaded by the defendant in her written
statement v.:crc tv.·o totally
different agrecmenL~. The plaintiff did
not
plead at any stage that he was ready
and v.·illing to perfo:m the agr~e·
ment pleaded in the written statement of defendant.
A sull for specific
pc-rformancc has to conform to the requirements prcscrihed in Forms 47
and 48 of the 1st ~hedule in the Civil Procedure Code. Be'forc a decree
for specific performance can be given the p~aintiff has to plead ar,d satis~y
the court about his willingness to perform hts part of the contract. [925 G·
926 Bl
Pt. Pre,n Raj v. The D.L.F.

## Text

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921 '
OUSEPH VARGHESE
v.
JOSEPH ALEY & ORS.
August 18, 1969
[J<. .S. HEGDE AND A. N. RAY, JJ.]
Specific Relief Act 1877 (! of 1877), s. 12-Suit for specific per/or·
mance of oral agral'/'Jtnt to re..convey property sold through sale-deed-
",I
Burden of proof on. plflintiff is heavy-Court will rarely grant specific per-.
.·
formance of contrtICI <Vz the basis of oral evidence only-Offer by de/en- .
dant in written statetnent to sell part of property to plaintiff at certain
price-Offer not ~eptdd by plaintiff-Court can not pass decr_ee in favour
of plaintiff on the basis of such. offer-Costs where both parties
have
withheld facts from Court.
' -
i
/
The plaintiff as' ozl.iinal owner of the suit properties sold the same to
the !st defendant 'lllho ,was husband of the 2nd defendant. According to
the plaintiff apart from the written sale-deed there was an oral agreement
between him and the !st defendant whereunder the latter agrees to reconvey the properties sold at the same price whenever the plaintiff called
upon him to do Sd~ The suit was filed for specific performance of the
said oral agreement The !st defendant
died even before he filed his
written statement. Betilre his death. he had gifted the suit properties to
his wife, the 2rid qefe@ant. In her vritten statement the 2nd defendant
denied the agreement pleaded in the p. \nt but stated that just before his
death her husband \lad agreed to sell to plaintiff item No. I of the suit
property less one ac;e of paddy field for a sum of Rs. 11,500 but due to
his illness the sale rould not be effected. She reiterated the said offer in
her written statement but the plaintiff did not acoept it and the suit proceeded on the basj$ of. the agreement pleaded in the plaint. The trial
court decreed the lillit as prayed for.
In appeal the High Court did not
accept the agreement pleaded by the plaintiff but still
granted a decree
directing the de'fendant to execute a sale deed in favour of the plaintiff
in respect of item No. I of the plaint schedule properties less one acre of
paddy field for a sum of Rs. 11,500.
Both the parties appealed to this
Court.
HELD : (i) '!he burden of proving
the oral agreement was on the
plaintiff. The sale deed on the face of it evidenced an outright sale. The
stipulation in it that the _purchaser would not mortgage or assign the pro--
perties to anyone else dming the vendor's lifetime went against the plain.-
tiff's case ina'Smuch as it-, only gave the vendor a right to pre-empt. There
was no satis'factory e.x~ation why such an important thing as the agree~
ment to re-convey was made orally and not reduced to writing. [923 G,
924 B!
It appeared likO!y in the present case that neither side had come forward with the true version.
But befdre a court can grant a decree for
specific performance, the contract pleaded
must be a specific one and
the same must be established by convincing evidence.
Rarely a decree
for specific performanceiis granted on the basis of an agreement support·
ed solely by ore, evidence. [925 D·El
On the evidence adduced by him tho plaintiff bad failed to prove the
agreement pleaded in the plaint. [925 FJ
(ii) The High Ciqurt.was wrong in passing the decree in respect
of
plaint item No. 1 on th~ basis df the admission of the 2nd defendant in
her written statement. The plaintiff did not at
any stage accept the
922
SUPREME COURT REPORTS
( 1970] 1 S.C.R.
agreement pleaded by the defendant as true. The agreement pleaded by
the plaintiff in his plaint and that pleaded by the defendant in her written
statement v.:crc tv.·o totally
different agrecmenL~. The plaintiff did
not
plead at any stage that he was ready
and v.·illing to perfo:m the agr~e·
ment pleaded in the written statement of defendant.
A sull for specific
pc-rformancc has to conform to the requirements prcscrihed in Forms 47
and 48 of the 1st ~hedule in the Civil Procedure Code. Be'forc a decree
for specific performance can be given the p~aintiff has to plead ar,d satis~y
the court about his willingness to perform hts part of the contract. [925 G·
926 Bl
Pt. Pre,n Raj v. The D.L.F. Housing and Construction (P} Ltd. &.
Anr., [19681 3 S.C.R. 648, applied.
Srii1ivas Rani Kr"nar v. Mahabir Prasad &: Ors., [1951} S.C.R. 277,
distinguished.
(iii) Since the parties had not laid the true version before the court
and the defendant had rc.'iiled from the offer made hy her in her written
staten1cnt it \\·as a C;)SC in which it was appropriate to direct the parties to
bear "their o"·n cost<; throughout. [926 1-1}
CIVIL APPELLATE JURISDICTION:
Civil Appeals Nos. 1782
and 1783 of 1966.
Appeals from the judgment and decree dated Oclober 6, 1964
of the Kerala High Court in Appeal Suit No. 569 of 1963.
0. P. Malhotra and J. B. Dadachanji, for the appellant (in
C.A. No. 1782 of 1966) and the respondents (in C.A. No. 1783
of 1966).
M. C. Chag/a and A. G. Pudissery, for the
r~spondents (in
C.A. No. 1782 of 1966) and the appellants (in C.A. No. 1783
of 1966).
The Judgment of the Court was delivered by
llegde, .J.
These connected appeals by certificate arise from
lhc decision of the High Court of Kera!a in Appeal Suit No. 569
of· 196.1 on its tile.
Civil Appeal 1'o. 1782 of 1966 is filed by
the plaintiff in the suit and Civil Appeal No. 1783 of 1966 is
filed by the second defendant (who sha II hereinafter be referred to
as the defenuant), who is contcsring thi> appeal.
The suit was for specific performance on the basis of an oral
agreement alkgcd to have been entered inlo on 9.9.1121 (Malayalam Era) between the plaintiff r.nd the 1st defendant who died
very soon after the filing of the suit.
The suit was contested by
the second defendant, his widow.
The trial court decreed the
suit as prayed for but in appeal the High Court did not accept
the agreement pleaded by the plainliff bm still granted a decree
directing the ddcndant to execulc a sale deed in favour of the
plaintiff in respect of item No. 1 of the plaint schedule properties
Jess one acre of paddy field at its cast for a sum of Rs. 11500/-.
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OUSBPH v. JOSEPH (Hegde, !.)
923
Originally the plaintiff was the owner of the suit properties.
He sold the same to the 1st defendant on 9.9.1121 (Malayalam
Era) under Exh. P-1.
According to the plaintiff at the time of
the execution of P-1, there was an oral agreement between him
and the 1st defendan~ whereunder the !st defendant agreed to reconvey the properties sold for the very price it was sold whenever
the plaintiff calls upon him to reconvey them.
The suit from
which these appeals arise has been founded on the basis of the
said agreement.
The I st defendant died even before he could
file his written stateinent in the case.
Before his death he had
gifted the suit properties by means of a registered deed in favour
of the defendant. She denied the agreement pleaded in the plaint
but on the other hand she stated that just before his death her
husband had agreed to sell to plaintiff item No. l of the suit
property less one acre of paddy field for a sum of Rs. 11500 but
due to the illness of her husband the sale in question could not be
effected. She proceeded further and averred as follows in piiragraph I 0 of her written statement.
"This defendant has been asked by the I st defendant
before his death that even after his death the properties
in item No. 1 (in the plaint schedule which are the subject matter of the contract) as mentioned in paragraph 7,
except the nilan;i. on the eastern part thereof, should be
assigned to the plaintiff for a consideration of Rs. 11500
and accordingly. this defendant is willing to give such
property as mentioned above to the plaintiff."
After the defendf!Ilt filed her written statement, the plaintiff did
not amend his plaint and pray for any relief on the basis of the
agreement pleaded by the defendant nor did he inform the court
that he was ready and willing to accept the agreement pleaded
by the defendant· or that he was willing to perfonn his part of
that agreement. The suit proceeded on the basis of the agreement
pleaded in the plaint.
The !st question that arises for decision is whether the agreement pleaded in the plaint is true.
The burden of proving that
agreement is naturally on the plaintiff.
The agreement in question as mentioned earlier is said to be an oral agreement. Therefore the plaintiff's task is all the more difficult.
The sale deed
Exh. P. l proceeds 011 the basis that it evidences an outright sale.
It does not either specifically or by implication lend support to
the case put forward by the plaintifI. On the other hand it records
the following .condition stipulated by the vendor :
"Subjeet to the stipulation that during my life time
the schedule properties shall not be mortgaged or assigned to anyone else without my knowledge and consent, I completely convey and surrender to you all my
924
SUPREME COURT REPORTS
[1970] l S.C.R.
remaining rights and possession, and the properties are
given to your possession on receipt of the sale consideration of Rs. 24,500."
From this clause it is clear that the plaintiff conveyed all his rights,
title and interest in the suit properties to the vcndee subject to
the afore-mentioned stipulation.
h is nut necessary to consider
whether the restriction in question is a valid one.
Even if we
assume that the same is valid, it docs not support the plaintiffs
case. On the other hand, by implication it negatives his case. At
best the clause referred to above merely confers on the vendor a
right to pre-empt.
Hence by implication it negatives the plaintiffs case that there was an agreement to rcconvcy ti:c suit properties.
The plaintiff has not given any satisfactory explanation
why the contract relating to rcconvcyancc was not incorporated
in the salt deed.
To explain this important omission he has examined P.W.2, who claims to be a document writer of c0nsiderable
experience.
He claims that the document in question was written
bv one of his assistants.
His evidence is to the effect that the
vendor and the vendee wanted to incorpor,llC the agreement as
regards re-conveyance in Exh. P.1 itself but he advised them
that it could not be done.
This is a strange legal advice.
This
evidence is on the face of it unbelievable.
There is also no satisfactory explanation why the alleged agreement was not reduced
into writing.
In support of the alleged agreement reliance was tried to be
placed on Exh. P-2, which is said to be a document signed by
the first defendant after the present suit was filed and before his
death. The High Court was unable to a~ccpt the genuineness of
tbis document. It opined that this docu111ent must ha1•e been go:
up by the plaintiff with the assistance of P.W. 7, his brother. From
the High Court's judgment we find that though the document
contains hardly few lines, for completing the same as many as
three different types of ink had been used.
The original docu·
ment has not been called for :md therefore we have to proceed
on the basis that tho observations made hv the 1ligl1 Court arc
correct.
Tlic wrv recitals in the document show that it is a su>-
picious document:
For all these reasons '"" arc unable to place
any reliance on this document.
It may be again emphasized at
this stage that this document has come into existence after the
institution of the present suit.
The principal witnesses who are examined in support of the
oral agreement pleaded in the case are P.Ws. !. 2 and 7.
We
have already
referred to the evidence of P.W. 2.
He docs not
appear to us to be a reliable witness.
P.W. I is no other than
tile plaintilI himself.
P.W. 7 is his broth~r.
P.W. I has no
children and P.W. 7 is his nearest heir.
Therefore it is quite
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OUSEPH v. JOSEPH (Hegde, J.)
925
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clear that both P. Ws. 1 and 7 are interested witnesses. Their evidence cannot carry much weight.
The story put forward by the plaintiff in the plaint is an improbable one. It is true that the plaintiff and the 1st defendant
are first cousins. It is also true that their relationship was very
cordial.
But if the 1st defendant could not trust the plaintiff
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to advance a sum of Rs. 24,000 without security as could be
gathered from tl)e plaintiff's evidence, we fail to see why the 1st
defendant should have relied on the oral assurances given by the
plaintiff in the ·matter of reconveying the property.
From the
averments made by the d_efendant in her written statement it does
appear that wh~n the l_st defendant was in his death bed being
c . stricken by canc~r, there was some talk about reconveying a portion of the suit properties to the plaintiff. It may alsv be as held
by the trial court that the suit property was worth more than
Rs. 24,000 at the time of its sale.
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It appears likely that neither side has come forward with the
true version. Eut before a court can grant a decree for specific
performance, the contract pleaded must be a specific one and the
same must be established by convincing evidence. Rarely a decree
for specific perfdrmance is granted on the basis bf an agreement
supported solely 'by oral evidence. That apart, as mentioned earlier, in this case the oral testimony adduced in support of the agreement pleaded is a highly interested one.
We do not think that
thctrial court was justified in relying on that testimony for granting the decree prayed for.
The trial court itself observed in the
course of its judgmc;lt (para 12) that "there is no clear cut evidence for proving the terms of the oral contract which is alleged
to have been entered into by the plaintiff and the I st defendant".
This finding alone should have been sufficient to non-suit the
plaintiff.
Therefore we agree with the High Court, though for
reasons other than those mentioned by it that the plaintiff has
failed to prove the agreement pleaded in the plaint.
This takes us to the decree passed by the High Court in respect
of plaint item No. 1.
This decree is purported to have been
passed on the ba$is of the admissioin made by the defendant. It
may be noted tljat the agreement pleaded by the defendant is
wholly different ~om. that pleaded by the plaintiff. They do not
refer to the same tr!lnsaction. The plaintiff did not at any stage
accept the agreement pleaded by the defendant as true. The agreement pleaded by the plaintiff is said to have been entered into at
the time of the execution of Exh. P-1 whereas the agreement put
forward by the defendant is one (hat is said to have been arrived
at just before t~ filing of the suit. The two are totally different
agreements.
Thi:> plaintiff did not plead either in the plaint or at
any subsequent stage that he was ready and willing to perform
the agreement pleaded in the writtn statement of defendant.
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"926
Sl;PREME COURT PIOPORTS
[19 70] I S.C.R.
suit for specific performance has to conform to the requirements
prescribed in Forms 47 and 48 of the !st Schedule in the Civil
Procedure Code.
In a suit for specific pcrfonnance it is incumA' I
bent on the plaintilf not only to set out the agreement on the basis
of which he sues in all its details, he must go further and plead
that he has applied to the defendant specifically to perform the
agreement pleaded by him but the defendant has not done so. He
must further plead that he has been and is still ready and willing
to specifically perform his part of the agreement. Neither in the
plaint nor at any subsequent stage of the suit the plaintiff has taken
thos pleas. As observed by this Court in Pt. Prem Raj v.
The
D.L.F. Housing and Construction (Private) Ltd. and anr.(') that
it is well settled that in a suit for specific performance the plaintiff
should allege that he is ready and willing to perform his part of
the contract and in the absence of such an allegation the suit is
not maintainable.
The High Court purported to rely on the decision of this Court
in Srinivas Ram Kumar v. Mahabir Prasad and ors. ( ') in support
of the decree passed by it.
We do not think that the ra«io of
that decision is applicable to the facts of this case.
Therein the
plaintiff brought a suit for specific performance of an agreement to
sell a house alleging that he had paid Rs. 30.000 towards the
price and had been put into possession in part performance of
the contract but the
defendant
pleaded that the amount
of
Rs. 30,000 was received as a loan and the plaintiff was put into
possession only to focilitate the payment of interest.
This Court
accepted the plea of the defendant and n;gatived the claim of
the plaintiff and refused to decree the specific performanc-: ,;rayed for by the plaintiff but at the same time this Court thought
that on tr.e peculiJr facts of that case, it was 1ppropriate to grant
a decree in favour of the plaintiff for Rs. 3ll,OOO which admittedly
remained unpaid.
As seen earlier before a decree for specific
performance can be given the plaintiff has to plead and satisfy
the court about his willin~ness to perform his part of the contract.
Hence in our opinion the decision in Srinivas Ram Kumar's case(')
docs not bear on the facts of the present case.
For the reasons mentioned above -.ve dismiss Civil Appeal Js:o.
1782 of 1966 and allow Civil Appeal No. 1783 of 1966.
Jn
the result the suit from which these appeals arise stands dismissed.
Now coming to the question of costs, on the facts and circumstances of this case we think it is appropriate to direct the parties
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to bear their own costs throughout. Our reasom for doing so are
these:
It is proved that the suit properties were sold to the 1st
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defendant at a very low price. There must lrnvc been some good
(I) [1968) l SCR. 648.
(2) [1951] S.C.R. '27.' .
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OUSEPH v. JOSEPH (Hegde, J.)
927
reason for doing so but the parties have not chosen to place the
true version before the Court. It is also proved that the 1st defendant before his death was willing to re-sell a portion of the
suit properties. He had directed his wife to re-sell the major
portion of item No. 1 of the plaint schedule to the plaintiff for
a consideration of Rs. 11,500 though its price at that time is proved to be much more than Rs. 11,500. As seen earlier, the defendant was willing to sell item No. 1 in the plaint schedule to
the plaintiff for Rs. 11,500. She expressed her readiness to do so
in her written statement. She is evidently not willing to stand by
that offer now because of the enormous rise of price of properties
in recent times. Mr. M. C. Chagla, learned Counsel for the defendant told us at the time of the hearing that the property concerned in the defyndant's ,apl'tlal is now worth over a lac of
rupees. That apj:lears to be the reason why the defendant is backing out of thei o~r made by her in her written statement.
All
that one need say •is that all is not well with defendant's case either.
G.C.
Civil Appeal 1782/66 dismissed.
Civil Appeal 1783/66 allowed.