Manjula vs M.R. Jayalakshmi

Anand Byrareddy, J—Heard the learned counsel for the appellant and the respondent.

The appellant was the plaintiff before the trial court. It was the case of the plaintiff that the plaintiff and defendants were related to each other and on the representation of the defendant that she was the owner of the suit schedule property bearing No. 30, khata No. 691/1173 in the layout formed on the converted land bearing Survey No. 190/2A of Kodigehalli village, Yelahanka Hobli, Bangalore North Taluk, measuring east to west 30 feet and north to south 50 feet and consisting of a small house. The defendant claimed to have purchased the suit schedule property from one Venkatamma, under a registered deed dated 11.8.1994. There were documents to indicate that the land was indeed converted from agricultural to non-agricultural purposes. There was a map indicating the suit property as site No. 30 and therefore had entered into a sale agreement, wherein the plaintiff had agreed to purchase the suit schedule property for a sale consideration of Rs. 4,50,000/-. The plaintiff had paid a sum of Rs. 2,80,000/- by way of cheque, which was duly encashed by the defendant and on 1.8.2005, the plaintiff is said to have paid a further sum of Rs. 1,50,000/- by way of cheque. It was also claimed by the defendant that the plaintiff was to pay the remaining amount of Rs. 20,000/- for the sale transaction to be complete. The sale transaction was to be completed by paying the balance amount. It transpires that in terms of the agreement, it was understood that the defendant would continue to be in possession of the 4 square RCC roofed house, which was situate on the suit schedule property, till her death. Subject to the same, the sale deed was to be executed. It transpires that the plaintiffs husband had prepared a draft sale deed and had presented it to the defendant for approval. The defendant on noticing that the draft sale deed did not contain any clause conferring a right on the defendant to remain in possession of the 4 square house, situated on the suit schedule property, had flatly refused and rejected the proposed sale as there was clear breach of the terms of the agreement. It is in this background that the suit for specific performance was filed.

The defendant had entered appearance and had taken up the defence that there was breach of the agreement in the plaintiff not having included term as regards the continued possession of the house by the defendant during her lifetime.

On the basis of the pleadings, the court below had framed the following issues:

"1. Whether the plaintiff proves that she has paid Rs. 4,30,000/- towards sale consideration in respect of agreement dated 31.03.2005?

Whether plaintiff proves her readiness and willingness to perform her part of the contract?

Whether plaintiff is entitled to the relief of specific performance of contract?"

Insofar as the receipt of a substantial advance of Rs. 4,30,000/- is concerned, the court below has held that the plaintiff had proved such payment. But however, on the issue whether there was readiness and willingness to perform her part of the contract and whether the plaintiff was entitled to the relief of specific performance of contract, was concerned, the court below has negatived the same on the ground that there was indeed a term in the agreement of sale that the defendant would be permitted to continue in possession even after the conveyance of the suit schedule property that was in existence and this being the material term, which was excluded from the draft sale deed, the defendant was well within her right to claim that there was breach of contract and that there was no readiness and willingness to perform the plaintiffs part of the contract and it is in that vein that the court below has answered issues 2 and 3 in the negative and dismissed the suit.

It is that which is under challenge in the present appeal.

The learned counsel for the appellant would contend that there is no denial of the terms of the agreement, including the term under which the defendant was to be allowed to remain in possession of a house during her life time even after conveyance of the suit schedule property. The appellant is ready and willing in respect of this aspect. However, it is also true that the draft sale deed which was presented by the plaintiffs husband to the defendant for approval did not contain any such clause. Since it was a draft sale deed, it was always open for the defendant to have insisted on inclusion of such clause and the mere rejection of the draft sale deed did not enable the defendant to claim that there was breach of contract. There is no such indication forthcoming. Therefore, the learned Counsel would submit that insofar as the readiness and willingness is concerned, in the admitted circumstance that a substantial amount of Rs. 4,30,000/- was paid out of a total sale consideration of Rs. 4,50,000/-, would on the face of it, indicate that only 5% of the sale price was outstanding. There are whole line of cases of the Supreme Court whereby it was held that when a substantial price has been paid, the presumption is that the plaintiff was ready and willing to perform his part of the contract. Therefore, the court below having held that the draft sale deed did not contain a clause permitting the continued residence of the defendant in the suit schedule property and that it would amount to breach of contract construction, would result in a miscarriage of justice. Hence, the learned counsel seeks that the judgment be set aside and the suit be decreed in favour of the plaintiff.

The learned counsel for the respondent would however seek to justify the judgment of the court below and would point out that with reference to Section 16(c) of the Specific Relief Act, 1963 and Explanation-II thereto, it is necessary for the plaintiff to demonstrate that he is ready and willing to perform the essential terms of the contract which are to be performed by him, other than the terms of the performance of which has been prevented or waived by the defendant. And the plaintiff must aver performance of, or readiness and willingness to perform, the contract according to its true construction. It is pointed out that the plaint does not contain any such undertaking on the part of the plaintiff to abide by the terms of the agreement and the draft sale deed not containing any such condition in favour of the defendant, would clearly prove that the plaintiff was never ready and willing to perform his part of the contract. It is contended that if indeed there was readiness on the part of the husband of the plaintiff, it is inexplicable that in the plaint, which is filed after rejection of the draft sale deed by the defendant, the plaintiff does not choose to specifically refer to this contention and that the plaintiff would be ready and willing to abide by such condition. Therefore, it is contended that on the face of it, it is demonstrated that the plaintiff was never ready and willing to perform her part of the contract and hence would seek to justify the judgment of the trial court. Notwithstanding the payment of a substantial amount of Rs. 4,30,000/-, which is received by the defendant, the learned counsel would submit that the defendant would repay this amount, with interest thereon, being warranted in the interest of justice and would submit that the judgment of the court below be sustained.

In the above circumstances, from a perusal of the agreement of sale, it is evident that there is an express clause whereby the defendant is reserved a right to continue in possession of a 4 square house situated on the suit schedule property. The plaintiff is not in a position to negate the same or ignore the said contention. It was always open for the defendant to enforce this clause even though the plaintiff did not choose to include the same in the proposed sale deed. The non-inclusion of the clause in the draft sale deed when it was presented for approval, did not lead to a breach of contract is sought to be contended by the defendant or as held by the court below. It was an independent contention which the defendant was always enabled to enforce.

The learned counsel for the appellant would now concede that there was never any intention to deprive the defendant of this benefit of continued possession even after the conveyance of the suit schedule property and would now state that the sale deed to be executed shall include such a contention.

However, the court below having opined that non-inclusion of such contention, which was an essential term of contract, being overlooked in the plaint, would certainly enable the defendant to claim that the plaintiff was not ready and willing, since all the essential terms of the agreement are not complied with or agreed to be complied with, it cannot be said that there was any such willful intention, as the plaintiff would even now claim that there is no hesitation to permit the defendant to occupy and continue in possession of the house in the suit schedule property.

In view of this controversy, the transaction between the parties having been delayed for over a decade, it is necessary in the ends of justice, that the consideration that is paid in respect of the suit schedule property, is appropriately enhanced and hence, having regard to the increase in the value of the property and the corresponding depreciation of the value of the rupee, it would be necessary to enhance the sale consideration atleast to a sum of Rs. 10.00 lakh, which the appellant plaintiff shall pay in stead of Rs. 4,50,000/- that has been agreed upon. On such payment of consideration, the defendant shall execute the sale deed while reserving his right to continue in occupation of the House measuring four squares on the suit schedule property, which shall be properly identified as to its location on the suit schedule property indicated with reference to a sketch to be appended to the sale deed. The appellant shall pay the amount within four weeks and the defendant shall execute the sale deed in favour of the plaintiff in the event the defendant should fail to do so, it is open for the appellant to approach the court below in seeking execution of the sale deed in terms as stated hereinabove.

The appeal stands disposed of.