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Judgment
Srinivasan, J.—The 2nd defendant in O.S. No. 152 of 1974 on the file of the District Munsif, Udumalpet in the appellant. The suit has been
filed by the 1st respondent herein for specific performance of an agreement dated 19.2.1974 between him and the 1st defendant in the suit, who is
the 2nd respondent in this appeal. The suit was originally instituted for specific performance and recovery of possession. Subsequently, the plaint
was amended and defendants 3 to 6 were impleaded as parties. The additional prayer introduced by way of amendment are for mandatory
injunction for removal of certain superstructures erected on the suit property and for restrictive injunction.
The suit was contested by the appellant herein on the footing that there was an agreement of sale in his favour by the 1st defendant on
28.7.1973, which was followed by a registered sale deed dated 1.4.1974. According to the appellant, the agreement with which the plaintiff has
come to court is brought about by collusion and fraud between the plaintiff and the 1st defendant. It is the case of the appellant that he was put in
possession pursuant to the transfer in his favour.
The suit was decreed by the trial court on the findings that there was no agreement in favour of the appellant on 28.7.1973 as claimed by him
and the document marked as Ex. B.1 must have been brought into existence subsequently and the sale deed dated 1.4.1974 in favour of the
appellant was only subject to the agreement in favour of the plaintiff dated 19.2.1974. The trial court also held that the appellant was not a bona
fide transferee for value, and granted a decree in favour of the plaintiff, as prayed for by him. On appeal, the same has been confirmed by the
learned subordinate Judge of Udumalpet.
In this second appeal, several contentions have been raised by Learned Counsel for the appellant. They are as follows:
i) There is no averment in the plaint that the plaintiff made a demand for execution of the sale deed in his favour by the 1st defendant or the 2nd
defendant and they had refused to do so. In the absence of such an averment in the plain, the requirement of S. 16(c) of the Specific Relief Act,
1963 O.6, R.3 of the CPC and forms 47 and 48 in Appendix A of the CPC are not fulfilled. Hence the suit is liable to be dismissed:
ii) The burden has been thrown wrongly on the appellant by the court below to prove that he is a bona fida transferee for value and Ex. A.1 is not
a true agreement ;
ii) The plaintiff was well aware of the constructions on the suit property, and he came forward with a prayer for mandatory injunctions only at a late
stage. That conduct disentitles the plaintiff from claiming the equitable relief of specific performance.
I will deal with the contentions one by one. Before doing so, the relevant facts, on which reliance has been placed by the court below for
dismissing the suit have to be set out herein. They are as follows: The execution of Ex. A.1 by the 1st defendant was not disputed. The only plea
raised by the 2nd defendant (as the 1st defendant has remained ex parte) was that Ex. A.1 was brought into existence by collusion between the
plaintiff and the 1st defendant and it was a result of fraud in order to defeat the rights of the appellant. Secondly, there is no reference to Ex. B.1 in
the sale deed dated 1.4.1974, marked as Ex. B.4 reads as if there was no written agreement. There was also no plea expressly in the written
statement that there was a written agreement on 28.7.1973. Thirdly, the document Ex. B.1 was produced into court only on 25.9.1975 and not
along with the written statement, which was filed in court on 9.8.1974. Fourthly, the stamp papers for Ex. B.1 stood in the name of one
Krishnasami and not in the name of the appellant. It was the case of the appellant that Krishnasami was the son of the 1st defendant. But there was
no evidence to prove the same. As per the document, Krishnasami in whose name the stamp papers stand, is said to belong to Udumalpet, but the
1st defendant belong to pollachi. Nobody has been examined by the appellant to prove that Krishnasami was the son of the 1st defendant, and in
his name, the stamp papers were purchased. Fifthly, there are material discrepancies with regard to the dates on which the documents of title were
said to have been handed over to the appellant and the handing over of the possession of the property. As regard documents of title, what is stated
by the appellant is, Exs.B.2 and B3 are the prior title deeds and they are handed over to him at the time of the agreement. That is clearly falsified
by the documents themselves as they are certified copies issued by the district & Sessions court, Coimbatore, on 19.3.1974 only. Both the
documents are certified copies or certain execution proceedings. They have been obtained from court only on 19.3.1974 and they could not have
been handed over to the appellant on the date of the agreement Ex. B.1, i.e. 28.7.1973. In fact, the plea in the written statement was, they were
handed over to the appellant at the time of the sale. That plea was given up in the evidence and a new case was sought to be put forward by the
appellant that they were handed over even at the time of agreement. Similarly, with regard to possession, it is the case of the appellant in the
witness box that possession was hand over to him at the time of agreement. But the recital in the sale deed Ex. B.4 is that possession was given to
him at the time of sale. There is the recital in Ex. B.1 that the appellant shall take possession of the property on the date of the agreement and enjoy
the same. In view of the recital in Ex. B.4, which is a registered sale deed, it is clear that the recital in Ex. B.1 is not false, but also throws
considerable suspicion as to the genuineness of Ex. B.1 itself. Sixthly, one of the stamp papers for the sale deed Ex. B.4 is in the name of one
Rajamani of Udumalpet. It bears the date 29.3.1974. The two remaining stamp papers are in the name of Visvanathan, Krishnapuram, bearing the
same date. The appellant is undoubtedly Visvanathan of Krishnapuram. There is no explanation for the stamp paper for the larger amount of Rs.
200/-. being in the name of Rajamani. There is no evidence as to who the said Rajamani is. Seventhly, the sale deed has been registered at
Thiruppur and not at Udumalpet. It is the case of the plaintiff that when he went to the sub Registrar''s office on 10.7.1974, he saw the appellant
and the 1st defendant and they, on seeing him, went away in a taxi. It has to be noted that one of the attestors to Ex. B.4 is the driver of the said
taxi. The appellant has not examined any of the attestors or the scribe of Ex. B.4.
On the above circumstances, the courts below have come to the conclusion that the agreement in favour of the plaintiff is true and the agreement
set up by the appellant in Ex. B.1 is not genuine. The courts below have also held that the appellant was fully aware of the agreement in favour of
the plaintiff, and he is not a bona fide transferee for value from the 1st defendant.
The question whether the appellant is a bona fide transferee for value is a question of fact when the courts below have referred to the relevant
facts and circumstances and arrived at a finding. It is not open to this Court in second appeal to interfere with the same. The finding cannot, by any
stretch of imagination, be said to be unreasonable or perverse. It is based on the evidence on record and on proper appreciation of the evidence.
The courts below have drawn the necessary and proper inference for the various facts placed before them.
Now, I will advert to the contentions raised by Learned Counsel for the appellant, which had to be considered only in the light of the facts set
out above. The first contention is a technical one. S. 16(c) of the Specific Relief Act is to the effect 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, other than the terms, the performance of which has been prevented or waived by the
defendant. It is settled law that unless the requirement of S. 16(c) is fulfilled, a person cannot have the relief of specific performance. The relief
being an equitable one, the statute prescribes that the person, who seeks specific performance must have always been ready to perform his part of
the contract and should also plead and prove the said readiness. This is based on the principle that he who seeks equity must do equity. When the
plaintiff comes to court seeking the equitable relief of specific performance, he is bound to do equity by showing to the court that he has been
ready and willing to perform his part of the contact, and but for the indifference of the defendant, the contract would have been performed.
O.6, R.3 of the CPC reads thus:
Form 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.
In Form No. 47, paragraphs 2 and 3 are as follows:
The plaintiff has applied to the defendant specifically to perform the agreement on his part, but the defendant has not done so.
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.
In Form No. 48, paragraph 3 is as follows:
On the third day of 19, the plaintiff again demanded such transfer. (or the defendant refused to transfer the same to the plaintiff).
Learned Counsel submit that it will not be sufficient if the plaintiff pleads mid proves that he is ready and willing to perform his part of the contract:
but he must also plead that he made a demand on the defendant of performance of the contract and the defendant refused to comply with the
same. According to Learned Counsel, the language of Rule 3 of Order 6 is mandatory and any plaint of a suit for specific performance has to be
strictly in conformity with Form No. 47 or Form No. 48. Learned Counsel submits that the present plaint does not contain an averment to the
effect that the plaintiff made a demand for specific performance, and there was a refusal on the part of the defendants to comply with the said
demand.
Before referring to the judgments relied on by Learned Counsel for the appellant, I would like to point out that the provisions in O.6, R.3
C.P.C. and the forms found in Appendix A are only part of the procedural law and they do not form part of substantive law. The Substantive law
is found in the Specific Relief Act and the provision therein is S. 16(c) in so far as it is relevant for this case, to which I have already adverted to.
When the Substantive Law prescribes only one requirement viz., the plaintiff shall plead and prove his readiness and willingness to perform the
contract, the procedural Law cannot go further than that and impose an additional requirement, which should be fulfilled before any relief is granted
as a condition precedent. It is well settled that form or procedure can never be exalted over the substance and procedure should always be the
handmaid of justice. It is in that light the provisions of O.6, R.3, C.P.C. and forms 47 and 48 in Appendix A should be interpreted and
understood. When S. 16(c) refers only to the readiness and willingness of the person, who seeks to have the contract enforced, O.6, R.3 cannot
be understood, as imposing an independent and additional requirement. The contents of forms 47 and 48 should be interpreted so as to fall within
the scope of S. 16(c) of the Specific Relief Act. If viewed in that light, paragraphs 2 and 3 in Form 47 should be read together. It is only as a limb
or part of the readiness and willingness to perform the contract, a plea of demand and refusal is considered necessary to be made. I am of the view
that the absence of a specific averment that demand was made and there was no Compliance by the defendant will not disentitle the plaintiff from
getting the relief of specific performance, If he proves on the facts that no such demand could have been made in the circumstances of the case and
he was ready and always willing to perform his part of the contract. A demand is only indicative of the readiness and willingness of the person
making it to perform his part of the contract.
Turning to the facts of this case, the relevant averments in the plaint are found in paragraph 3 and 9, which react as follows:
The plaintiff submits that he was, he is, and had always been willing an prepared to abide by the terms of the agreement and has also got ready
the balance of money payable to the 1st defendant. The plaintiff is also prepared to produce the necessary stamp papers for engrossing the deed of
sale whenever called upon to do so.
The execution of the sale by the first defendant in favour of the 2nd defendant amounts to an unilateral breach of the contract by the 1st
defendant even within the period stipulated under the agreement and the plaintiff who has always been ready and willing to perform his part of the
contract, is left with no other option but to come forward with this suit for the relief of specific performance and possession against both the
defendants.
In paragraph 9, the plaintiff has clearly stated as to why and how there was no occasion for his making a demand on the defendants for executing
the sale deed or fulfilling the contracts. It must be remembered that in Ex. A.1 the period fixed was five months. In other words, it was agreed
specifically that the balance of consideration should be paid by the plaintiff before 18-7-1974 and he should get the sale deed executed by the 1st
defendant at his instance. Thus, the plaintiff had time till 18-7-1974, but even on 1-4-1974, the 1st defendant had executed the sale deed in favour
of the 2nd defendant (appellant) and got it registered thus making his intention clear not to perform his part of the contract. Once the 1st defendant
has made such an open declaration by executing the sale deed in favour of the 2nd defendant conveying the very same property to the 2nd
defendant for a higher consideration, that is sufficient notice to the plaintiff that the 1st defendant will not perform his part of the contract, and, that
would amount, in law, to a refusal by the 1st defendant to perform the contract even before a demand is made by the plaintiff on the 1st defendant.
Immediately after coming to know of the sale deed, the plaintiff lost no time in filing the suit, on 17-4-1974. He made deposit of the entire balance
of consideration on 18-4-1974. Thus the plaintiff has proved that he was ready and willing to perform his part of the contract and he made the
deposit actually in court. Therefore, the plaintiff no only pleaded expressly that he was ready and willing to perform his part of the contract, but has
also proved the same by his action in depositing the amount in court. It is in that background the legal contention raised by Learned Counsel for the
appellant has to be considered.
Learned Counsel places reliance on a judgment of the Supreme Court in Ouseph Varghese Vs. Joseph Aley and Others, . In that case, there
was a sale by the plaintiff, who was the original owner of the properties to the 1st defendant, who was the husband of the 2nd defendant.
According to the plaintiff, there was an oral agreement on the date of sale between him an the 1st defendant, by which the latter agreed to re-
convey the properties at the same price whenever the plaintiff called upon him to do so. It was for specific performance of the said oral agreement,
the suit was filed. The 1st defendant died before filling the written statement. Before his death, he had gifted the properties to his wife, the 2nd
defendant. In her written statement, the 2nd defendant denied the agreement pleaded by the plaintiff, but stated that just before his death, her
husband had agreed to sell to plaintiff item No. 1 of the suit properties less one acre of paddy field for a sum of Rs. 11,500/-. but due to his illness
the sale could not be effected. She offered in the written statement to fulfill that agreement, but the plaintiff did not accept the same and he
proceeded with the suit claiming to enforce the agreement pleaded by him in the plaint. The trial court decreed the suit as prayed for. On appeal,
the High Court did not accept the agreement pleaded by the plaintiff, but yet granted a decree in his favour directing the defendant to execute a
sale deed in favour of the plaintiff in respect of item No. 1 of the plaint schedule properties less one acre of paddy field for a sum of Rs. 11,500/-..
In other words, the High Court enforced the agreement set up by the defendant in the written statement and granted a decree in favour of the
plaintiff on that basis. Both the parties were hot satisfied by the decree passed by the High Court and approached the supreme court.
The Supreme Court held that the High Court was wrong in passing the decree in respect of item No. 1 on the basis of the admission of the 2nd
defendant in her written statement, as the plaintiff did not, at any stage, accept that agreement as true. The Supreme Court found that it was a case
of plaintiff setting up one agreement and the defendant setting up another agreement, and on the failure of the plaintiff to prove his agreement, a
decree was passed by the High court on the basis of the agreement set up by the defendant. The supreme Court held that such a decree could not
be passed. The Supreme Court also found, on the facts that the agreement pleaded by plaintiff was not true. In the course of the judgment, the
Supreme Court referred to the provisions of Forms 47 and 48 in Appendix A of the CPC and observed as follows:
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 into at the time of the execution of Exh.P.1 whereas the agreement put forward by defendant is one
that is said to have been arrived at just before the filing of the suit. The two are totally different agreements. The 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 written statement of defendant. A suit for
specific performance has to conform to the requirements prescribed in Forms 47 and 48 of the 1st schedule in the Civil procedure code. In a suit
for specific performance it is incumbent on the plaintiff 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 plaint not at any
subsequent stage of the suit the plaintiff has taken those pleas.
Reliance is placed by Learned Counsel for the appellant on the aforesaid passage and he submits that the ruling of the supreme Court is to the
effect that forms 47 and 48 should be strictly complied with by a person, who seeks specific performance. The observations made by the Supreme
Court have to be understood in the context of the Cast and in fact, they have been very careful in making these observations after setting out very
clearly that the plaintiff in that case did not accept the agreement pleaded by the defendant. It was in those circumstances, the Supreme Court
placed reliance on forms 47 and 48 and there was no occasion for the Supreme Court to consider the question, which has now arisen before me in
the present case.
Learned Counsel invites my attention to another judgment of the Supreme Court in Abdul Khader Rowther Vs. P.K. Sara Bai and Others, In
that case, the suit properties were mortgaged by the plaintiff in favour of the 1st defendant in 1953. It was the case of the plaintiff that possession
was never handed over to the mortgagee and no amount was paid as consideration under the mortgage, though it was stated to be Rs. 22,000/-..
Subsequently, the properties were assigned by the plaintiff in favour of the 1st defendant under a document dated June 29,1953. The sale
consideration was stated to be Rs. 35,000/-.. According to the plaintiff no such consideration was received by him. Thus the contention of the
plaintiff was that both the transactions were sham and intended to protect the suit properties from creditors, who were possessing the plaintiff for
the amounts due from him to them. The 1st defendant dispossessed the plaintiff of the suit property and the plaintiff filed the suit for re-assignment
of the properties to him in terms of the assignment deed. It was the case of the defendants that the two transactions and they were really intended
to come into effect and they did come into effect as per the terms therein. It was also pleaded that the plaintiff was entitled to repurchase the
property within a particular period on payment of the sale consideration of Rs. 35,000/-. together with the value of improvements. The trial court
found that the transaction were not sham and were intended to come into effect and they were supported by consideration. It was also held that
there was sale of the properties with a covenant for re-conveyance and the plaintiff was granted a decree for specific performance. On appeal by
the defendants, the High Court accepted the contention of the defendants and dismissed the suit. The High Court held that the plaint did not contain
the necessary averments to grant a decree for specific performance of the covenant for reconveyance. In the appeal before the Supreme Court, the
plaintiffs counsel contended that the document evidenced a mortgage by conditional sale. That was negatived. The other contention put forward by
the plaintiffs counsel was that though the plaint was not in strict conformity with forms 47 and 48, there was substantial compliance with their
requirements and therefore, the suit was a properly laid one for specific performance and the decree granted by the trial court should have been
confirmed. Dealing with that contention, the Supreme Court held that the High Court was justified in their conclusion. Referring to the averments in
the plaint, the Supreme Court pointed out that the requirements of forms 47 to 48 were not in any manner satisfied. The Supreme Court relied on
the observations made in Ouseph Varghese Vs. Joseph Aley and Others,
A perusal of the judgment of the Supreme court shows that it will had no bearing on the present case, no stretch of imagination, the plaint in
that case could be said to have satisfied the requirement of forms 47 and 48 and thereby Rule 3 of O.6, C.P.C. That judgment will not help to
decide the issue in the present case.
Learned Counsel for the appellant places reliance on three decisions of the Allahabad High court in Mahmood Khan v. Ayub Khan AIR 1978
Allahabad 463; Suraj Singh v. Sohan Lal AIR 1981 Allahabad 330 and Bijai Bahadur v. Shri Shiv Kumar AIR 1985 Allahabad 223 in support of
the proposition that the equitable relief of specific performance cannot be granted unless there is a specific plea that the plaintiff was ready and
willing to perform his part of the contract and the same is proved by the plaintiff and that what applies to paragraph 3 in Form No. 47 would
equally apply to paragraph 2 said form. The judgments of the Allahabad High court do not take the Appellant anywhere. I have already referred to
the circumstances that the plea of readiness and willingness has been expressly taken in the plaint by the plaintiff in this case and that has also been
proved beyond doubt, with regard to paragraph 2 in Form No. 47, I am of the view that paragraph 9 of the present plaint is sufficient compliance
with the requirements of paragraph 2 of Form 47.
Even otherwise, I am of the view the relief of specific performance cannot be denied to the plaintiff, who has proved that, on the facts and
circumstances of the case, there was no question of making a demand on the defendant and waiting for his refusal. Thus I hold that reliance by the
appellant on S. 16(c) of the specific Relief Act or O.6, R.3, C.P.C. had with forms 47 and 48 in Appendix A thereto will not be of any avail to the
appellant in this case.
Learned Counsel for the appellant is not right in contending that the burden has been thrown on the appellant wrongly by the Courts below.
The courts below have approached the matter in the proper perspective. As pointed out by me already, the execution of Ex. A.1 was net in
dispute. The contention of the appellant was that Ex. A.1 was brought into existence by the plaintiff and the 1st defendant in collusion with each
other in order to defeat the rights of the appellant. Hence there was no necessity for the courts below to consider whether the 1st defendant
executed Ex. A.1 and whether it has been proved by the plaintiff. The courts below have considered all the facts on record and come to the
conclusion that Ex. B.1, on which reliance is placed by the appellant, is not genuine. That finding of fact by the courts below is unassailable. Once it
is found that the appellant is not a bona fide transferee for value, there is no question of his challenging Ex. A.1.
The next contention of Learned Counsel is that the appellant had no knowledge of Ex. A.1. That has been clearly found against by the courts
below on the evidence available. In fact, they have accepted the version of P.W. 1 that when he went to the sub Registrar''s office at Udumalpet,
the appellant and the 1st defendant saw him and went away hurriedly in a taxi so that they could have the document registered at Thiruppur. The
court below has discussed the matter in detail and it is not necessary for me to repeat the same in this judgment. It must also be pointed out that
P.W. 2 has, in his evidence, stated that four days prier is 1-4-1974, the appellant called on the plaintiff in the presence of 3rd defendant and some
others and demanded the produce of Ex. A.1. No doubt, there was no specific reference to the same in the plaint and there is only a general plea
that the appellant was aware of the plaintiff''s agreement. The courts below have not found any reason to reject the said version of the plaintiff in
the witness-box. It is not necessary for me to place reliance on that circumstance. Suffice it to point out that the other circumstances on record lead
to the inference that the appellant had knowledge of Ex. A.1.
It is also contended by Learned Counsel for the appellant that the there is no finding by the courts below that the plaintiff was ready and willing
to perform his part of the contract, and in the absence of such a finding, the judgment are vitiated. According to him, it is purely a question of law
and it can be raised at any stage. I did not permit him to raise that in the Second Appeal. There is also no ground in the memorandum of Second
Appeal. But I held on the facts that the plaintiff was ready and willing to perform his part of the contract. I have already referred to the relevant
facts and his finding of nine will hold good for sustaining the decree granted in favour of the plaintiff.
Learned Counsel referred to the construction on the suit property and the amendment of the plaint by introducing a prayer for mandatory
injunction. According to Learned Counsel, the plaintiff did not take any action as soon as the constructions were put up and he sought to amend
the plaint only at a late stage. The findings of the courts below are that the constructions were put up only after the filing of the suit and that too only
at the instance of defendants 3 to 6 and it is not the 2nd defendant, who put up the construction. Defendants 3 to 6 were claiming independent right
and possession, and they appear to have put up unauthorised construction. The illegality of the construction has been spoken to by P.W. 1, the
Executive officer of the Madathu Kulam Panchayat and by production of Exs.X1 to X5, to substantiate his version. In these circumstances the
appellant cannot place any reliance on the construction found on the suit property and the in action. If any, on the part of the plaintiff as against the
same. But as a fact, it is seen that the plaintiff has come forward with a prayer for necessary reliefs, as soon as the constructions are put up. In the
circumstances, all the contention put forward by the Learned Counsel for the appellant fail and the Second Appeal is dismissed with costs.