Gujarat High Court
Natuhai Dhirubhai Naik vs Alkeshbhai Kashiram Patel on 29 September, 2025
NEUTRAL CITATION
C/FA/2331/2008 JUDGMENT DATED: 29/09/2025
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2331 of 2008
With
CIVIL APPLICATION (FOR ORDERS) NO. 1 of 2009
In R/FIRST APPEAL NO. 2331 of 2008
With
CIVIL APPLICATION (FOR ORDERS) NO. 1 of 2016
In R/FIRST APPEAL NO. 2331 of 2008
With
CIVIL APPLICATION (FOR ORDERS) NO. 2 of 2016
In R/FIRST APPEAL NO. 2331 of 2008
With
CIVIL APPLICATION (FOR DIRECTION) NO. 3 of 2013
In R/FIRST APPEAL NO. 2331 of 2008
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK Sd/-
==========================================================
Approved for Reporting Yes No
✓
==========================================================
NATUBHAI DHIRUBHAI NAIK & ANR.
Versus
ALKESHBHAI KASHIRAM PATEL & ANR.
==========================================================
Appearance:
MR JAAL UNWALA SENIOR COUNSEL FOR MR SHIVANG M SHAH(5916)
for the Appellant(s) No. 1,2
MR CHINMAY M GANDHI(3979) for the Defendant(s) No. 1,2
==========================================================
CORAM:HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
Date : 29/09/2025
ORAL JUDGMENT
CHALLENGE:-
1. Present appeal is filed by the appellants (original Page 1 of 40 Uploaded by SURESH SOLANKI(HC00208) on Mon Sep 29 2025 Downloaded on : Mon Sep 29 23:27:36 IST 2025 NEUTRAL CITATION C/FA/2331/2008 JUDGMENT DATED: 29/09/2025 undefined defendants) under Section 96 of the Civil Procedure Code 1908, challenging the judgment and decree dated 31.12.2007 passed by the learned 2nd Additional Senior Civil Judge and J.M.F.C, Navsari (hereinafter referred to as the "trial Court") in Special Civil Suit No.3 of 2005 whereby the trial Court has decreed the suit filed by the original plaintiff and directed the defendants to execute sale deed of suit land described in plaint para (2) bearing block no. 2409 admeasuring 4 Hectors 17 Are 74 sq. mtrs situated in the sim of village Abrama by accepting balance amount of Rs.3,59,517/- within one month from the date of judgment.
BRIEF FACTS:-
2. The respondents herein - plaintiffs (father and son) instituted the suit seeking specific performance of an agreement to sell dated 17.02.2004, and permanent injunction in respect of agricultural land bearing Block No. 2409, Nos.1 and 2, admeasuring 4 Hectares, 17 Ares and 84 sq.mtrs., situated at village Abrama. Taluka Jalalpur, District Navsari. The defendants are real brothers and recorded owners of the suit land.
2.1 It was the case of the plaintiffs that the defendants had agreed to sell the suit property for a total consideration of Rs. 9,00,000/-. Out of this, a sum of Rs. 5,40,583/- was paid by the plaintiffs, and possession of Page 2 of 40 Uploaded by SURESH SOLANKI(HC00208) on Mon Sep 29 2025 Downloaded on : Mon Sep 29 23:27:36 IST 2025 NEUTRAL CITATION C/FA/2331/2008 JUDGMENT DATED: 29/09/2025 undefined the suit property was handed over to them. The balance amount of Rs. 3,59,517/- was agreed to be adjusted towards clearing the bank debts and charges on the suit land, which the defendants had undertaken to discharge, and thereafter to execute the registered sale deed within six months. The plaintiffs alleged that despite repeated requests and notice dated 21.10.2004, the defendants failed to perform their part of the contract and instead attempted to alienate the property to third parties, though possession continued with the plaintiffs.
2.2 The defendants filed a written statement denying execution of any sale agreement. Their case was that the plaintiffs, taking advantage of their weak financial condition, had obtained signatures on blank papers under the guise of monetary assistance for repayment of loans. According to them, there was no concluded contract of sale, but only a money lending transaction, a major portion of which had already been repaid. They also denied that possession of the suit property was handed over to the plaintiffs.
2.3 On the basis of the pleadings, the trial Court framed issues vide Exh. 23 which read as under:-
"1. Whether plaintiff proves that they have purchased the suit property from the defendants, as per the terms recited in agreement to sale dated 17/02/2004 and since then they are in possession Page 3 of 40 Uploaded by SURESH SOLANKI(HC00208) on Mon Sep 29 2025 Downloaded on : Mon Sep 29 23:27:36 IST 2025 NEUTRAL CITATION C/FA/2331/2008 JUDGMENT DATED: 29/09/2025 undefined and occupation of 10 Vighas land of the northern side of the suit property?
2. Whether plaintiffs prove that defendants have failed to fulfill the stipulation of the agreement executed by and between the parties?
3. Whether plaintiff proves that defendants failed to fulfil the condition of the agreement of sale hence plaintiff issued notice dated 21/10/2004 and 26/10/2004 for specific performance of contract defendants failed to comply the notice?
4. Whether plaintiff proves that, the defendants are trying to sale or alienate suit property in any form to third parties?
5. Whether defendants prove that their bank debt has increased and to get the undue advantage of their weak economic condition under the guise of providing monetary assistance by tempting and under duress plaintiffs got the writings executed?
6. Whether defendants prove that there has been no contract of sale between the plaintiffs and defendants or have not sold the suit land under contract of sale to the plaintiffs?
7. Whether defendants proves that they have taken loan from the plaintiffs to pay bank dues and major portion of loan taken from the plaintiffs have been remitted to the plaintiffs?
8. Whether defendants proves that they are in possession of suit land?
9. Whether plaintiffs are entitled to get sale deed executed as prayed for?
10. Whether plaintiffs are entitled to get relief as Page 4 of 40 Uploaded by SURESH SOLANKI(HC00208) on Mon Sep 29 2025 Downloaded on : Mon Sep 29 23:27:36 IST 2025 NEUTRAL CITATION C/FA/2331/2008 JUDGMENT DATED: 29/09/2025 undefined prayed for?
11. What order and decree?
2.4 Before the trial Court, to prove their case, the plaintiffs and defendant have led oral as well as documentary evidence which read as under:-
Plaintiffs' Evidence Sr. Particulars Exhibit No. No.
1. P.W.1 Alkeshbhai Kashiram Patel filed affidavit under Ex.33 Order 18 Rule 4 CPC in the form of evidence
2. Abstract of Village Form No.7-12 of Block No.2490 for Ex.34 period 1990-91 to 1992-93
3. Abstract of Village Form No.7-12 of Block No.2490 for Ex.35 year 1993-94 to 1994-95
4. Revenue payment receipt dated 07/01/2005 Ex.36
5. Education cess payment receipt Ex.37
6. Notice dated 21/10/2004 issued by plaintiffs' Ld. Ex.28 Advocate to the defendants
7. Postal acknowledgment receipt regarding notice Ex.39 received by Defendant No.1
8. Postal acknowledgment receipt regarding notice Ex.40 received by Defendant No.2
9. Abstract of Village Form No.8-A, Khata No.48 Ex.41
10. Abstract of Village Form No.7-12 of Block No.2409 Ex.42 dated 04/07/2007
11. Agreement to Sale dated 17/02/2004 Ex.43
12. Agreement to Sale dated 13/01/1999 Ex.44
13. Contract dated 18/06/2001 of 10/8 Vighas northern side Ex.45 land of Block No.2409
14. P.W.2 Babubhai Jividas filed affidavit under Order 18 Ex.48 Rule 4 CPC
15. Plaintiffs' closing purshish Ex.56 Page 5 of 40 Uploaded by SURESH SOLANKI(HC00208) on Mon Sep 29 2025 Downloaded on : Mon Sep 29 23:27:36 IST 2025 NEUTRAL CITATION C/FA/2331/2008 JUDGMENT DATED: 29/09/2025 undefined Defendants' Evidence Sr. Particulars Exhibit No. No.
1. D.W.1 Natubhai Dhirubhai Naik filed affidavit under Ex.63 Order 18 Rule 4 CPC
2. D.W.2 Sumantrai Bhikhabhai Ex.69
3. Defendants' closing purshish Ex.71 2.5 Upon appreciation of the above oral and documentary evidence of both the sides, the trial Court held in favour of the plaintiffs, finding that the agreement dated 17.02.2004 was proved, possession of the land was with the plaintiffs, and the defendants had failed to perform their obligations. The issues raised by the defendants regarding coercion, loan transaction, and possession were negatived.
2.6 Accordingly, by judgment and decree dated 31.12.2007 passed in Special Civil Suit No. 3 of 2005 the trial Court decreed the suit in favour of the plaintiffs.
2.7 Being aggrieved and dissatisfied by the said judgment and decree, the original defendants-present appellants have preferred the present appeal.
3. Heard Mr. Jaal Unwala, learned Senior counsel assisted by Mr. Shivang M. Shah, learned counsel for the appellants and Mr. Chinmay M. Gandhi, learned counsel Page 6 of 40 Uploaded by SURESH SOLANKI(HC00208) on Mon Sep 29 2025 Downloaded on : Mon Sep 29 23:27:36 IST 2025 NEUTRAL CITATION C/FA/2331/2008 JUDGMENT DATED: 29/09/2025 undefined for the respondents.
SUBMISSIONS ON BEHALF OF THE APPELLANTS:-
3.1 Mr. Jaal Unwala, learned Senior counsel for the appellants has submitted that the suit filed by the respondents seeking specific performance of the agreement to sell dated 21.02.2004 was not maintainable in the eye of law and the decree passed by the trial Court is wholly unsustainable. Learned senior counsel has submitted that the very agreement relied upon is an unregistered agreement to sell which narrates transfer of possession. He has submitted that in view of the settled legal position, no decree for specific performance can be granted on the basis of such an unregistered document, as the same is inadmissible in evidence under the provisions of the Evidence Act read with the provisions of the Specific Relief Act.
3.2 Learned Senior counsel for the appellants has further submitted that the alleged agreement is hit by the provisions of law being based on an unlawful consideration. He has submitted that the recitals of the agreement itself indicate that the consideration was adjusted towards the outstanding loan amount and accumulated interest. He has submitted that the respondents-plaintiffs have neither pleaded nor proved that they were holding any valid money lending licence as Page 7 of 40 Uploaded by SURESH SOLANKI(HC00208) on Mon Sep 29 2025 Downloaded on : Mon Sep 29 23:27:36 IST 2025 NEUTRAL CITATION C/FA/2331/2008 JUDGMENT DATED: 29/09/2025 undefined required under the Bombay Money Lenders Act, 1946 and in fact, in cross-examination the plaintiff candidly admitted that he did not possess any such licence. He has submitted that the trial Court itself framed an issue with regard to the repayment of debts, but without examining the legality of charging interest, proceeded to decree the suit. He has submitted that in terms of Sections 10, 18 and 19 of the Bombay Money Lenders Act, no decree can be passed unless the plaintiff proves lawful imposition of interest under a valid licence. Thus, the performance of such an agreement is barred under Sections 23 and 24 of the Indian Contract Act, 1872.
3.3 Learned Senior counsel for the appellants has submitted the respondents were themselves in breach of the obligations cast upon them under the agreement. He has submitted that the scheme of the Specific Relief Act is founded on mutual rights and obligations, and it is a settled law that no party can enforce performance against another if he himself has failed to perform his own obligations.
3.4 Learned Senior counsel for the appellants has further submitted that the respondents failed to prove the essential requirement of "readiness and willingness" as mandated under Section 16(c) of the Specific Relief Act. Neither in the pleadings nor in evidence has the plaintiffs established continuous readiness and willingness to Page 8 of 40 Uploaded by SURESH SOLANKI(HC00208) on Mon Sep 29 2025 Downloaded on : Mon Sep 29 23:27:36 IST 2025 NEUTRAL CITATION C/FA/2331/2008 JUDGMENT DATED: 29/09/2025 undefined perform their part of the contract from the date of agreement till the disposal of the suit.
3.5 On the aspect of possession, learned Senior counsel for the appellants has submitted that the law is well settled that delivery and transfer of possession in respect of immovable property can only be made through a legally executed registered document. He has submitted that in the present case, the plaintiff has not produced any such valid document to prove possession. He has submitted that the reliance on unregistered agreements of 1999, 2001 and 2004, which themselves narrate transfer of possession, is wholly misconceived as all such documents are inadmissible in evidence.
3.6 Learned Senior counsel for the appellants has further submitted that the trial Court failed to consider the defence raised in the written statement. He has submitted that the specific plea of signatures being obtained on blank papers, the illegality of the transaction, the unregistered nature of the agreement, the calculation of consideration including interest, and the issue of possession, were all brushed aside without proper determination. He has submitted that such non- consideration of material issues goes to the root of the matter and renders the judgment unsustainable in law.
3.7 Learned Senior counsel for the appellants has Page 9 of 40 Uploaded by SURESH SOLANKI(HC00208) on Mon Sep 29 2025 Downloaded on : Mon Sep 29 23:27:36 IST 2025 NEUTRAL CITATION C/FA/2331/2008 JUDGMENT DATED: 29/09/2025 undefined referred to and relied upon the following decisions:-
(1) In the decision of Hon'ble Apex Court in case of Mahnoor Fatima Imran and Ors vs. Vishweswara Infrastructure Pvt. Ltd. reported in 2025 SCC OnLine 1062=2025 INSC 646=2025 LiveLaw (SC) 679, the Hon'ble Apex Court has held as under:-
"17. It is in this context that we must examine the document of 19.03.1982, an agreement which is said to have been validated in the year 2006. We immediately notice that the very contention of the writ petitioners is only that they have obtained proper conveyances by registered sale deeds from Bhavana society, whose claim is under the agreement of 1982, which has not till date been registered and hence cannot be recognized as a valid mode or instrument of transfer of immovable property, going by the above decision.
25. We make it clear that we have not said anything about the possession of 99.07 acres which will have to be agitated in appropriate proceedings. As far as the writ petition praying for a direction not to dispossess, we find that the writ petitioners to have not established a valid title. We prima facie find the title to be suspect, which would disentitle them from claiming a rightful possession, which also has not been proved."
(2) In the decision of Hon'ble Apex Court in case of Shenbagam and Ors vs. KK Rathinavel reported in 2022 SCC OnLine SC 71=AIR 2022 (SC) 1275, the Hon'ble Apex Court has held as under:-
"25 All the three courts, including the High Court, grossly erred in the manner in which they have adjudicated upon this dispute in a suit for specific performance. In the first instance, the trial court failed Page 10 of 40 Uploaded by SURESH SOLANKI(HC00208) on Mon Sep 29 2025 Downloaded on : Mon Sep 29 23:27:36 IST 2025 NEUTRAL CITATION C/FA/2331/2008 JUDGMENT DATED: 29/09/2025 undefined to frame an issue on whether the respondent-plaintiff was ready and willing to perform his obligations under the contract and instead assessed whether he is entitled to the relief of specific performance. In doing so, the trial court viewed the legal issue from an incorrect lens. The foundation of a suit for specific performance lies in ascertaining whether the plaintiff has come to the court with clean hands and has, through his conduct, demonstrated that he has always been willing to perform the contract. There is a conspicuous absence in judgment of the trial court of any reference to evidence led by the respondent to indicate his willingness to perform the contract. The trial court merely adverted to "document produced on behalf of the plaintiff" and concluded that he had sufficient means to purchase the suit property. Apart from this observation, the judgment fails to analyse the terms of the agreement, the obligations of the parties and the conduct of the respondent or the appellant.
26 In evaluating whether the respondent was ready and willing to perform his obligations under the contract, it is not only necessary to view whether he had the financial capacity to pay the balance consideration, but also assess his conduct throughout the transaction.
36 True enough, generally speaking, time is not of the essence in an agreement for the sale of immoveable property. In deciding whether to grant the remedy of specific performance, specifically in suits relating to sale of immovable property, the courts must be cognizant of the conduct of the parties, the escalation of the price of the suit property, and whether one party will unfairly benefit from the decree. The remedy provided must not cause injustice to a party, specifically when they are not at fault. In the present case, three decades have passed since the agreement to sell was entered into between the parties. The price of the suit property would undoubtedly have escalated. Given the blemished conduct of the respondent-plaintiff in indicating his willingness to perform the contract, we decline in any event to grant the remedy of specific performance of the contract. However, we order a refund of the consideration Page 11 of 40 Uploaded by SURESH SOLANKI(HC00208) on Mon Sep 29 2025 Downloaded on : Mon Sep 29 23:27:36 IST 2025 NEUTRAL CITATION C/FA/2331/2008 JUDGMENT DATED: 29/09/2025 undefined together with interest at 6% per annum."
(3) In the decision of the Hon'ble Apex Court in case of Pydi Ramana @ Ramulu vs. Davarasety Manmadha Rao reported in 2024(7) SCC 515=2024 (AIR) SC 3242, the Hon'ble Apex Court has held as under:-
"13. In order to obtain a decree for specific performance, the plaintiff must aver and prove that he has performed his part of the contract and has always been ready and willing to perform the terms of the contract which are to be performed by him. Section 16(c) of the Specific Relief Act mandates 'readiness and willingness' of the plaintiff to be averred and proved and it is a condition precedent to obtain the relief of specific performance.
14. There is a distinction between the terms 'readiness' and 'willingness'.3 'Readiness' is the capacity of the plaintiff to perform the contract which includes his financial position to pay the sale consideration. 'Willingness' is the conduct of the party. In the instant case, even according to the concurrent findings recorded by the courts below, it would emerge that the plaintiff had been able to successfully prove the sale agreement dated 07.06.1993 Ex.A1 on which date Rs.2,005/- was paid by the plaintiff to the defendant. The evidence on record tendered by plaintiff came to be accepted by all the courts and judgments of courts below would also indicate that further amount towards sales consideration in a sum of Rs.17,000/- was paid by plaintiff to defendant on 23.06.1993 and same was endorsed by him. As per the recital in the agreements, the defendant was His Holiness Acharya Swami Ganesh Dassji v Sit ram Thapar (1996) 4 SCC 526 required to get the suit land surveyed and as such the total consideration was agreed to be settled after such survey. On the one hand, the plaintiff contends that defendant never got surveyed the suit land. On the other hand pleadings and evidence of plaintiff is silent on steps taken by the plaintiff as expected of a reasonable person which has not been taken in the instant case namely the plaintiff has not produced any evidence either oral or documentary to Page 12 of 40 Uploaded by SURESH SOLANKI(HC00208) on Mon Sep 29 2025 Downloaded on : Mon Sep 29 23:27:36 IST 2025 NEUTRAL CITATION C/FA/2331/2008 JUDGMENT DATED: 29/09/2025 undefined establish that there was any demand made by him for the land being surveyed by defendant. No witnesses have been examined on behalf of the plaintiff to establish that at any point of time there has been demand made by the plaintiff with the defendant by calling upon him to get the suit land surveyed as agreed under the agreement of sale Ex.A1. It is for the first time after a period of 3 years from the date of agreement Ex.A.1 namely on 30.05.1996 legal notice (Ex.A3) was got issued or in other words plaintiff was silent for a period of 3 years in enforcing of the agreement of sale. It is for this specific reason the trial court while rejecting the prayer for decree of specific performance has recorded a categorical finding to the following effect:
21. The terms of the agreement xxx the period of one year. The plaintiff got issued a legal notice on 30.05.1996 Ex.A.3 expressing his readiness to go ahead with the transaction and calling upon the vendors to execute the sale deed. That means nearly for two years after the expiry of one year period. The plaintiff vendee did nothing to act in furtherance of the agreement. Excepting a bald and vague assertion that he was contacting the vendors but they were dodging nothing more is brought on record to satisfy the court that the plaintiff was at all material times interested in finalizing the deal and showing his readiness and willingness to perform the essential terms of the agreement.
Though the suit was filed within the period of limitation, it is not sufficient. In assessing the question of readiness and willingness of the party to perform his part of the contract. It is highly essential to take into account the long unexplained silence and inaction on the part of the plaintiff.
22. Plaintiff must perform his part of the contract within reasonable time. There was total inaction on the part of the plaintiff for 2 ½ years which was not consistent with the terms of agreement. From 6.6.94 to 30.5.96 i.e., for a period of 23 months, plaintiff sat quiet without taking any steps to perform his part of the contract under the Page 13 of 40 Uploaded by SURESH SOLANKI(HC00208) on Mon Sep 29 2025 Downloaded on : Mon Sep 29 23:27:36 IST 2025 NEUTRAL CITATION C/FA/2331/2008 JUDGMENT DATED: 29/09/2025 undefined agreement though the agreement specified a period of one year, within which he was expected to urge the defendant- vendor to get measurements of land and fix the sale price and to tender the balance amount and call upon the defendants to execute sale deed and deliver possession of the property.
As rightly pointed out by the trial court, the respondent- plaintiff has not produced any satisfactory evidence to prove his readiness and willingness. As regards 'willingness' of the plaintiff to perform his part of the contract, the conduct of the plaintiff warranting the performance has to be looked into. The following conduct of the plaintiff warrants consideration:
a. Plaintiff got issued legal notice nearly after two years after the expiry of one year period as prescribed in the agreement.
b. Plaintiff has not brought anything on record to prove that he contacted the Defendant after the expiry of one year period and was interested in finalising the deed.
c. There was total inaction of the Plaintiff from 06/06/1994 (expiry of one year period) to 30/05/1996 (Date of issuance of legal notice) d. Suit was filed on 09/06/1997 i.e. after a period of more than one year from the date of issuing of legal notice. Said delay has not been sufficiently explained by the Plaintiff.
The continuous readiness and willingness is a condition precedent to grant the relief of specific performance.4 The trial Court has rightly held that plaintiff has not sufficiently explained and proved that he was always ready and willing to perform his part of the contract. As such the High Court and the First Appellate Court had erred in holding that plaintiff had proved his readiness and willingness."
(4) In the decision of Hon'ble Apex Court in case of U.N. Page 14 of 40 Uploaded by SURESH SOLANKI(HC00208) on Mon Sep 29 2025 Downloaded on : Mon Sep 29 23:27:36 IST 2025 NEUTRAL CITATION C/FA/2331/2008 JUDGMENT DATED: 29/09/2025 undefined Krishnamurthy (Since Deceased) Thr. LRs vs. A.M. Krishnamurthy reported in 2023(11) SCC 775=AIR 2022 SC 3361, the Hon'ble Apex Court has held as under:-
"24. Section 16 (c) of the Specific Relief Act, 1963 bars the relief of specific performance of a contract in favour of a person, who fails to aver and prove his readiness and willingness to perform his part of contract. In view of Explanation (i) to clause (c) of Section 16, it may not be essential for the plaintiff to actually tender money to the defendant or to deposit money in Court, except when so directed by the Court, to prove readiness and willingness to perform the essential terms of a contract, which involves payment of money. However, explanation
(ii) says the plaintiff must aver performance or readiness and willingness to perform the contract according to its true construction.
25. To aver and prove readiness and willingness to perform an obligation to pay money, in terms of a contract, the plaintiff would have to make specific statements in the plaint and adduce evidence to show availability of funds to make payment in terms of the contract in time. In other words, the plaintiff would have to plead that the plaintiff had sufficient funds or was in a position to raise funds in time to discharge his obligation under the contract. If the plaintiff does not have sufficient funds with him to discharge his obligations in terms of a contract, which requires payment of money, the plaintiff would have to specifically plead how the funds would be available to him. To cite an example, the plaintiff may aver and prove, by adducing evidence, an arrangement with a financier for disbursement of adequate funds for timely compliance with the terms and conditions of a contract involving payment of money.
46. It is settled law that for relief of specific performance, the Plaintiff has to prove that all along and till the final decision of the suit, he was ready and willing to perform his part of the contract. It is the bounden duty of the Plaintiff to prove his readiness and Page 15 of 40 Uploaded by SURESH SOLANKI(HC00208) on Mon Sep 29 2025 Downloaded on : Mon Sep 29 23:27:36 IST 2025 NEUTRAL CITATION C/FA/2331/2008 JUDGMENT DATED: 29/09/2025 undefined willingness by adducing evidence. This crucial facet has to be determined by considering all circumstances including availability of funds and mere statement or averment in plaint of readiness and willingness, would not suffice.
47. In this case, the Respondent Plaintiff has failed to discharge his duty to prove his readiness as well as willingness to perform his part of the contract, by adducing cogent evidence. Acceptable evidence has not been placed on record to prove his readiness and willingness. Further, it is clear from the Respondent Plaintiff's balance sheet that he did not have sufficient funds to discharge his part of contract in March 2003. Making subsequent deposit of balance consideration after lapse of seven years would not establish the Respondent Plaintiff's readiness to discharge his part of contract. Reliance may be placed on Umabai v. Nilkanth Dhondiba Chavan (supra) where this Court speaking through Justice SB Sinha held that deposit of amount in court is not enough to arrive at conclusion that Plaintiff was ready and willing to perform his part of contract. Deposit in court would not establish Plaintiff's readiness and willingness within meaning of section 16(c) of Specific Relief Act. The relevant part of the judgment is reproduced below: -
"45. ...Deposit of any amount in the court at the appellate stage by the plaintiffs by itself would not establish their readiness and willingness to perform their part of the contract within the meaning of Section 16(c) of the Specific Relief Act..."
49. The Respondent Plaintiff may have been willing to perform his part of contract. It however appears that he was not ready with funds. He was possibly trying to buy time to discharge his part of contract."
(5) In the decision of Hon'ble Apex Court in case of Janardan Das and ors. vs. Durga Prasad Agarwalla and ors. reported in 2024 SCC OnLine SC Page 16 of 40 Uploaded by SURESH SOLANKI(HC00208) on Mon Sep 29 2025 Downloaded on : Mon Sep 29 23:27:36 IST 2025 NEUTRAL CITATION C/FA/2331/2008 JUDGMENT DATED: 29/09/2025 undefined 2937=2024 INSC 778=2024 LawSuit SC 913, the Hon'ble Apex Court has held as under:-
"8. Section 16(c) of the Specific Relief Act, 1963, mandates that a plaintiff seeking specific performance of a contract must aver and prove that they have performed or have always been ready and willing to perform the essential terms of the contract which are to be performed by them. This requirement is a condition precedent and must be established by the plaintiff throughout the proceedings. The readiness and willingness of the plaintiff are to be determined from their conduct prior to and subsequent to the filing of the suit, as well as from the terms of the agreement and surrounding circumstances. The rationale behind this provision is to ensure that a party seeking equitable relief has acted equitably themselves. Specific performance is a discretionary relief, and the plaintiff must come to the court with clean hands, demonstrating sincerity and earnestness in fulfilling their contractual obligations. Any laxity, indifference, or failure to perform their part of the contract can be a ground to deny such relief. The importance of readiness and willingness for enforcement of specific performance has been summarized by this Court in U.N. Krishnamurthy v. A.M. Krishnamurthy1, as follows:
"23. Section 16 (c) of the Specific Relief Act, 1963 bars the relief of specific performance of a contract in favour of a person, who fails to aver and prove his readiness and willingness to perform his part of contract. In view of Explanation (i) to clause
(c) of Section 16, it may not be essential for the plaintiff to actually tender money to the defendant or to deposit money in court, except when so directed by the Court, to prove readiness and willingness to perform the essential terms of a contract, which involves payment of money.
However, Explanation (ii) says the plaintiff must aver performance or readiness and willingness to perform the contract according to its true construction.
Page 17 of 40 Uploaded by SURESH SOLANKI(HC00208) on Mon Sep 29 2025 Downloaded on : Mon Sep 29 23:27:36 IST 2025NEUTRAL CITATION C/FA/2331/2008 JUDGMENT DATED: 29/09/2025 undefined
24. To aver and prove readiness and willingness to perform an obligation to pay money, in terms of a (2023) 1 SCC 775 contract, the plaintiff would have to make specific statements in the plaint and adduce evidence to show availability of funds to make payment in terms of the contract in time. In other words, the plaintiff would have to plead that the plaintiff had sufficient funds or was in a position to raise funds in time to discharge his obligation under the contract. If the plaintiff does not have sufficient funds with him to discharge his obligations in terms of a contract, which requires payment of money, the plaintiff would have to specifically plead how the funds would be available to him. To cite an example, the plaintiff may aver and prove, by adducing evidence, an arrangement with a financier for disbursement of adequate funds for timely compliance with the terms and conditions of a contract involving payment of money.
xxx xxx xxx
45. It is settled law that for relief of specific performance, the plaintiff has to prove that all along and till the final decision of the suit, he was ready and willing to perform his part of the contract. It is the bounden duty of the plaintiff to prove his readiness and willingness by adducing evidence. This crucial facet has to be determined by considering all circumstances including availability of funds and mere statement or averment in plaint of readiness and willingness, would not suffice."
11. Upon perusal of the records and submissions, we find merit in the appellants' contention that the plaintiffs failed to prove their continuous readiness and willingness as required under Section 16(c) of the Specific Relief Act. The terms of the agreement imposed specific obligations on the plaintiffs, particularly in ensuring that Defendant Nos. 6 to 8 would participate in Page 18 of 40 Uploaded by SURESH SOLANKI(HC00208) on Mon Sep 29 2025 Downloaded on : Mon Sep 29 23:27:36 IST 2025 NEUTRAL CITATION C/FA/2331/2008 JUDGMENT DATED: 29/09/2025 undefined the execution of the sale deed within three months. The plaintiffs' failure to take any initiative in this regard is indicative of their lack of commitment to perform the contract. It is pertinent to note that the plaintiffs were aware that Defendant Nos. 6 to 8 were not parties to the agreement and that their consent was crucial for the completion of the sale. Despite this knowledge, the plaintiffs did not attempt to contact the sisters or address any correspondence to them. The plaintiffs also did not furnish any evidence to show that they had arranged the balance consideration amount or were prepared to pay it upon execution of the sale deed.
13. In light of the above reasoning, we agree with the Trial Court's findings that the plaintiffs failed to prove their continuous readiness and willingness to perform their part of the contract as mandated under Section 16(c) of the Specific Relief Act. The High Court erred in not adequately addressing this critical aspect and in overlooking the plaintiffs' inaction and lack of diligence. The plaintiffs' failure to comply with the essential terms of the agreement and to take necessary steps within the stipulated time demonstrates a lack of readiness and willingness, which is fatal to their claim for specific performance."
(6) In the decision of Hon'ble Apex Court in case of M.S. Anantharmurthy vs. J. Manjula Etc. reported in 2025 SCC OnLine SC 448=2025 INSC 273=2025 LawSuit SC 284, the Hon'ble Apex Court has held as under:-
"47. It is a settled law that a transfer of immovable property by way of sale can only be by a deed of conveyance. An agreement to sell is not a conveyance. It is not a document of title or a deed of transfer of deed of transfer of property and does not confer ownership right or title. In Suraj Lamp (supra) this Court had reiterated that an agreement to sell does not meet the requirements of Section 54 and 55 of the TPA to effectuate a 'transfer'.Page 19 of 40 Uploaded by SURESH SOLANKI(HC00208) on Mon Sep 29 2025 Downloaded on : Mon Sep 29 23:27:36 IST 2025
NEUTRAL CITATION C/FA/2331/2008 JUDGMENT DATED: 29/09/2025 undefined
53. Even from the combined reading of the POA and the agreement to sell, the submission of the appellants fails as combined reading of the two documents would mean that by executing the POA along with agreement to sell, the holder had an interest in the immovable property. If interest had been transferred by way of a written document, it had to be compulsorily registered as per Section 17(1)(b) of the Registration Act. The law recognizes two modes of transfer by sale, first, through a registered instrument, and second, by delivery of property if its value is less than Rs. 100/-."
3.8 In view of the above submissions and the decisions of the Hon'ble Apex Court, learned Senior counsel for the appellants urges before the Court that present appeal may be allowed and the impugned judgment and decree passed by the trial Court may be quashed and set aside.
SUBMISSIONS ON BEHALF OF THE
RESPONDENTS:-
4. On the other hand, Mr. Chinmay Gandhi, learned counsel for the respondents has submitted that the appeal is devoid of merits and deserves to be dismissed. He has submitted that the appellants themselves have admitted ownership of Block No.2409 admeasuring 4 Hectares 17 Are 84 sq.mtrs. of village Abrama, Taluka Jalalpur, District Navsari, and further admitted execution of agreements dated 13.01.1999 (Exh.44) and 18.06.2001 (Exh.45). He has submitted that having accepted these transactions in their own memo of appeal, the plea of Page 20 of 40 Uploaded by SURESH SOLANKI(HC00208) on Mon Sep 29 2025 Downloaded on : Mon Sep 29 23:27:36 IST 2025 NEUTRAL CITATION C/FA/2331/2008 JUDGMENT DATED: 29/09/2025 undefined coercion raised in the written statement is clearly an afterthought and cannot be accepted. He has submitted that under the agreement dated 13.01.1999, the respondents advanced Rs.3,50,000/- to the appellants with stipulation of interest at 24% p.a., and the appellants categorically agreed that in case of default, they would sell the land at Rs.50,000/- per Vigha after redeeming possession from one Rameshbhai Khapabhai. He has submitted that subsequently, under the agreement dated 18.06.2001, the appellants acknowledged liability of Rs.5,40,483/-, agreed to hand over possession of 10.80 Vighas of the land to the respondents, and also undertook to clear the charge of Bank of Baroda before execution of sale deed.
4.1 Mr. Gandhi, learned counsel for the respondents has also submitted that thereafter, under the Agreement to Sell dated 17.02.2004, the appellants agreed to sell the entire Block No.2409 for Rs.9,00,000/- and out of this, Rs.5,40,483/- was treated as part consideration and the respondents undertook to pay the balance Rs.3,59,517/- directly towards clearing the bank dues and six months' period was fixed for execution of the sale deed. He has submitted that the respondents, immediately upon default of the appellants, issued notice dated 21.10.2004 and continuously expressed their readiness and willingness to perform their part of the contract and they even Page 21 of 40 Uploaded by SURESH SOLANKI(HC00208) on Mon Sep 29 2025 Downloaded on : Mon Sep 29 23:27:36 IST 2025 NEUTRAL CITATION C/FA/2331/2008 JUDGMENT DATED: 29/09/2025 undefined deposited Rs.3,59,517/- in the trial Court pursuant to the decree, which amount still remains in fixed deposit. He has submitted that throughout, the respondents have complied with their obligations while the appellants have failed to honour theirs.
4.2 Mr. Gandhi, learned counsel for the respondents has submitted that the trial Court, on appreciation of the evidence, has rightly held that possession of the land was with the respondents. He has submitted that the oral testimony of Babubhai Jivibhai Patel (Exh.48) corroborates the fact of cultivation by the respondents and even this Court, in its order dated 06.05.2010 passed in Civil Application No.3024 of 2010, recorded that the respondents were cultivating the land and directed them to maintain accounts of crops. He has submitted that on the other hand, the conduct of the appellants is highly inequitable since they executed yet another Agreement to Sell dated 08.02.2000 in favour of one Bharatkumar Nanubhai Desai for the very same land, which led to filing of Special Civil Suit No.6/2005 and this fact was suppressed from the trial Court as well as this Court. He has submitted that they further created a mortgage in favour of Navsari Peoples' Co-operative Bank Ltd. in 2000 for Rs.6,00,000/- which later swelled to a charge of Rs.25,00,000/-, and this too was concealed. Such suppression disentitles the appellants to any Page 22 of 40 Uploaded by SURESH SOLANKI(HC00208) on Mon Sep 29 2025 Downloaded on : Mon Sep 29 23:27:36 IST 2025 NEUTRAL CITATION C/FA/2331/2008 JUDGMENT DATED: 29/09/2025 undefined discretionary relief.
4.3 Mr. Gandhi, learned counsel for the respondents has submitted that the contention that the agreement to sell dated 17.02.2004 is inadmissible for want of registration is misconceived since as per the proviso to Section 49 of the Registration Act, an unregistered agreement to sell is admissible in evidence for the purpose of a suit for specific performance, as held by the Hon'ble Apex Court in case of R. Hemalatha v. Kasthuri (2023 SCC OnLine SC 381). He has submitted that the trial Court has rightly held that time was not the essence of the contract. He has submitted that it is settled law that in contracts for sale of immovable property, time is not of the essence unless specifically provided, as held in Chand Rani v. Kamal Rani (1993) 1 SCC 519 and in the present case, no such stipulation exists.
4.4 Mr. Gandhi, learned counsel for the respondents has submitted thus, the respondents have acted bona fide, have paid substantial consideration, have remained ready and willing, and are in possession of the suit land, whereas the appellants have acted dishonestly, indulged in multiple fraudulent transactions, and attempted to defeat the legitimate rights of the respondents and the findings of the learned trial Court are based on proper appreciation of evidence and settled principles of law.
Page 23 of 40 Uploaded by SURESH SOLANKI(HC00208) on Mon Sep 29 2025 Downloaded on : Mon Sep 29 23:27:36 IST 2025NEUTRAL CITATION C/FA/2331/2008 JUDGMENT DATED: 29/09/2025 undefined ANALYSIS:-
5. Considering the facts of the case, the issue arises for consideration before this Court are as follows:-
1. Whether the trial Court was justified in passing the impugned judgment and decree of specific performance by relying upon unregistered documents?
2. Whether the plaintiff proves that the documents referred to and relied upon by him can be considered as an agreement to sell?
3. Whether the trial Court committed an error in passing the impugned judgment and decree of specific performance on the basis of oral evidence led by both sides, in the absence of any evidence supported by independent witnesses?
6. For the purpose of deciding the above referred questions, let us first we go to the evidence of the witnesses before the trial Court.
6.1 It is evident from the cross-examination of plaintiff Alkeshbhai Exh. 33 that the very foundation of the plaintiffs' case suffers from serious infirmities. The plaintiff himself has admitted that the initial transaction dated 13/01/1999 was essentially a loan transaction for a Page 24 of 40 Uploaded by SURESH SOLANKI(HC00208) on Mon Sep 29 2025 Downloaded on : Mon Sep 29 23:27:36 IST 2025 NEUTRAL CITATION C/FA/2331/2008 JUDGMENT DATED: 29/09/2025 undefined sum of Rs.3,50,000/-, for which the suit land was kept as security. He further admitted that the subsequent agreements of 18/06/2001 and 17/02/2004 merely recorded the outstanding dues and interest, without execution of any fresh agreement of sale or delivery of possession.
6.2 The plaintiff has categorically stated that "our transaction involved giving the money and recovering it with interest, with the land mortgaged as security for the debt." Such an admission demolishes the theory of an outright agreement to sell and establishes that the plaintiffs stood in the shoes of moneylenders, without license, who had sought to camouflage a money lending transaction as an agreement to sell immovable property.
6.3 The plaintiff has further admitted that no possession of the suit land was handed over to him under any of the agreements. The possession continued with Rameshbhai Bapabhai, and no contemporaneous document evidencing delivery of possession was ever produced. Even in the subsequent agreements, there is no recital of possession having been transferred. The absence of possession -- coupled with the admission that interest and installments were agreed upon -- reinforces the case of the defendants that the true nature of the transaction was one of loan and mortgage, and not of sale.
Page 25 of 40 Uploaded by SURESH SOLANKI(HC00208) on Mon Sep 29 2025 Downloaded on : Mon Sep 29 23:27:36 IST 2025NEUTRAL CITATION C/FA/2331/2008 JUDGMENT DATED: 29/09/2025 undefined 6.4 Equally significant are the admissions regarding non- compliance with the very conditions of the agreement dated 17/02/2004. The plaintiff conceded that he did not comply with Condition Nos.2, 3 and 4, which required repayment of bank dues within six months. He further admitted that no notice of compliance was served upon the defendants. The agreement itself stipulated that non- compliance would render the agreement void. This vital clause, admitted by the plaintiff, strikes at the very enforceability of the agreement.
6.5 Coming to the deposition of plaintiff's witness Babubhai Jividas (Exh.48), his testimony further weakens the plaintiffs' case. Though he attempted to support the plaintiffs, his admissions expose the lack of proof on essential aspects. He admitted that while he had signed as a witness to Exh.43, there is nothing in the said deed to show how possession of the land was handed over. He also accepted that he did not sign any possession receipt and that the affidavit relied upon by him does not clearly disclose payment of the alleged amount of Rs.5,40,483/-, except for Rs.3,50,000/- said to be paid in his presence.
6.6 The witness candidly admitted that, in fact, the transaction originated as borrowing of money by the defendants with the condition of repayment along with interest, and that the plaintiffs had inserted recitals of agreement to sell only to secure the repayment of loan.
Page 26 of 40 Uploaded by SURESH SOLANKI(HC00208) on Mon Sep 29 2025 Downloaded on : Mon Sep 29 23:27:36 IST 2025NEUTRAL CITATION C/FA/2331/2008 JUDGMENT DATED: 29/09/2025 undefined He further admitted that there is no clear note in Exh.43 regarding payment of bank dues or interest by the plaintiffs. Such admissions by plaintiffs' own witness corroborate the defendants' stand and belie the plaintiffs' attempt to portray the transaction as a genuine agreement to sell.
6.7 It is also material to note that this witness candidly acknowledged that despite the high market value of the land, the plaintiffs have sought to claim rights under agreements based on much lower consideration. His statement that a false suit has been filed to usurp valuable land at less rates lends further credence to the defence version.
6.8 In light of these admissions, this Court is of the considered opinion that the trial Court committed a grave error in decreeing the suit for specific performance. The plaintiffs have failed to establish that the impugned agreements were genuine agreements to sell. On the contrary, the cross-examinations of both plaintiff Alkeshbhai and his witness Babubhai establish that the underlying transaction was a money lending arrangement, unenforceable in law, and that the plaintiffs themselves have not complied with the contractual conditions.
Page 27 of 40 Uploaded by SURESH SOLANKI(HC00208) on Mon Sep 29 2025 Downloaded on : Mon Sep 29 23:27:36 IST 2025NEUTRAL CITATION C/FA/2331/2008 JUDGMENT DATED: 29/09/2025 undefined CONCLUSION:-
7. I have considered the facts of the case and relevant material produced on record. I have also gone through the record and proceedings vis a vis the impugned judgment and order passed by the trial Court.
8. It appears from the record that, in the first agreement executed between the appellants and the respondents (original defendants and plaintiffs respectively) on 13.01.1999, which is exhibited at Exhibit 44, a specific period of 5 years was stipulated, within which the appellants were to repay the borrowed amount to the original plaintiff. However, instead of waiting for the completion of the said 5-year period, another document came to be executed on 11.06.2001, i.e. within 2 years of the earlier agreement. Thus, without waiting for the agreed period of 5 years, a fresh document was prepared and signed. This clearly reflects the intention of the original plaintiffs from the very inception to grab the land at a throwaway price.
9. Instead of seeking recovery of the borrowed amount, the original plaintiffs appears to have misused the blank signed papers of the appellant. Without properly appreciating these facts, the Trial Court has erroneously allowed the suit of the plaintiffs and directed the Page 28 of 40 Uploaded by SURESH SOLANKI(HC00208) on Mon Sep 29 2025 Downloaded on : Mon Sep 29 23:27:36 IST 2025 NEUTRAL CITATION C/FA/2331/2008 JUDGMENT DATED: 29/09/2025 undefined defendants to execute the sale deed in favour of the respondents-original plaintiffs, which is completely illegal, unjust and unsustainable. Even on a bare perusal of the said documents, if they are considered and believed, it is evident that as per the agreement, the defendants had agreed to sell only 10.80 Vighas of land to the respondents-original plaintiffs
10. Instead of 10.80 Vighas of agricultural land as agreed, the plaintiffs took possession of the entire 18 Vighas of land, which is contrary to the terms of the first agreement exhibited at Exhibit 45. Moreover, during the stipulated period of 5 years, the appellants-original defendants had already repaid the said amount along with interest at the rate of 24%. However, without properly considering these material facts, the Trial Court has erroneously passed the impugned judgment and decree.
11. On perusal of the document subsequently executed on 11.06.2001, and on a plain reading of its contents, it prima facie appears that in the event of failure to repay the borrowed amount as per the agreement dated 13.01.1999, the respondents-original plaintiffs were entitled to get possession of only 10.80 Vighas of land. Though such possession was stated to have been handed over, the respondents-original plaintiffs in fact took possession of the entire agricultural land measuring more than 18 Vighas. This clearly indicates that from the very Page 29 of 40 Uploaded by SURESH SOLANKI(HC00208) on Mon Sep 29 2025 Downloaded on : Mon Sep 29 23:27:36 IST 2025 NEUTRAL CITATION C/FA/2331/2008 JUDGMENT DATED: 29/09/2025 undefined beginning, the intention of the respondents-original plaintiffs was not bona fide.
12. But without appreciating the aforesaid facts in their true and proper perspective, it appears that the Trial Court proceeded on the footing that the respondents- original plaintiffs were entitled to purchase 10.80 Vighas of land as per the subsequent document, which appears to have been got up on a blank papers by misusing the signatures of the appellant-original defendant. In my opinion, the Trial Court was not justified in directing the appellant-original defendant to execute the sale deed of the entire agricultural land measuring 18 Vighas.
13. While deciding Issue Nos. 1, 2, 5, 6, 7 and 8 jointly, and more particularly in paragraph 7 while interpreting the documents, the Trial Court has misread and misinterpreted the documents produced at Exhibits 44 and 45. The trial Court recorded findings to the effect that, so far as the bank dues are concerned, they were to be settled by the respondents-plaintiffs on behalf of the appellants-original defendants. However, no such recital or condition is mentioned in the said documents. On the contrary, there was no agreement to sell executed between the parties. If the documents at Exhibits 44 and 45 are properly considered, their contents are completely contrary to the recitals in the subsequent document. It appears that the Trial Court has erroneously treated a Page 30 of 40 Uploaded by SURESH SOLANKI(HC00208) on Mon Sep 29 2025 Downloaded on : Mon Sep 29 23:27:36 IST 2025 NEUTRAL CITATION C/FA/2331/2008 JUDGMENT DATED: 29/09/2025 undefined document intended as a mortgage as an agreement to sell, which is legally unsustainable.
14. The Court has considered the defence of the respondents-original plaintiffs that they were not holding any money-lending licence, and therefore there was no question of lending any money to the present appellants. According to them, it was a sale transaction, and they had agreed to purchase the land for a total consideration of Rs. 9,00,000/-, out of which an amount of Rs. 5,40,483/- had already been paid, and the remaining amount of Rs. 3,59,317/- was to be paid within a reasonable time, upon which the sale deed was to be executed by the present appellants. If we presume that the said document was dated 17.12.2004, even then it was not executed within the stipulated period.
15. Upon a comprehensive reappraisal of the evidence on record, particularly the cross-examination of appellant No.1 Natubhai (Exh.63) and the testimony of witness Sumantray Bhikhubhai Naik (Exh.69), this Court finds that the learned trial court has gravely erred in decreeing the suit of the original plaintiffs-now respondents, Alkeshkumar and Kashiram. The evidence of appellant Natubhai clearly reveals that there was never any loan transaction between the parties, as alleged by the respondents. On the contrary, the material on record indicates that the transaction in question was purely a Page 31 of 40 Uploaded by SURESH SOLANKI(HC00208) on Mon Sep 29 2025 Downloaded on : Mon Sep 29 23:27:36 IST 2025 NEUTRAL CITATION C/FA/2331/2008 JUDGMENT DATED: 29/09/2025 undefined sale transaction, and no consideration was advanced by the respondents by way of any loan. It has also been categorically stated that the appellants were not engaged in any money lending business nor did they possess any license to lend money, which renders the very foundation of the respondents' claim improbable and legally untenable. Moreover, the document relied upon by the respondents was not executed within the stipulated period and does not bear the features of a legally enforceable loan agreement. From the cross-examination of defendant No.1 - Natubhai (Exh.63), it emerges that his signatures were obtained on blank papers and stamp papers without his knowledge of the contents therein. The defendant has categorically stated that about 10 such blank papers were signed by him and his brother, and that he came to know about the alleged agreements only after service of summons in this suit. Such evidence creates a serious doubt about the voluntary execution of the documents relied upon by the plaintiffs. The admissions that his signatures were obtained on blank papers cannot be brushed aside lightly, particularly when the plaintiffs themselves have not produced any contemporaneous independent witness to prove execution.
16. Further, the deposition of witness Sumantray Bhikhubhai Naik lends strong corroboration to the Page 32 of 40 Uploaded by SURESH SOLANKI(HC00208) on Mon Sep 29 2025 Downloaded on : Mon Sep 29 23:27:36 IST 2025 NEUTRAL CITATION C/FA/2331/2008 JUDGMENT DATED: 29/09/2025 undefined appellants' defence. In his cross-examination, he has candidly admitted that no loan amount was paid by the respondents in his presence and that the appellants had never held themselves out as money lenders. This independent testimony discredits the version of the respondents and supports the stand of the appellants that the disputed transaction was only a sale arrangement and not a loan. When the evidence of both witnesses is read conjointly, it is evident that the respondents have failed to discharge their burden of proving the alleged loan transaction. The trial Court has thus erred in drawing adverse inferences against the appellants without any cogent and reliable evidence on record.
17. It is a settled principle of law that the burden lies heavily on the plaintiffs to prove their case affirmatively. The respondents have failed to discharge such burden. On the contrary, material contradictions in their pleadings and evidence have remained unexplained. The document on which they rely is unregistered, lacks any contemporaneous proof of consideration, and has not been proved in accordance with law. The trial Court has erred in treating such an unproved and doubtful document as conclusive evidence and has further erred in shifting the burden onto the appellants. Such an approach is contrary to the settled legal principles governing civil trials.
Page 33 of 40 Uploaded by SURESH SOLANKI(HC00208) on Mon Sep 29 2025 Downloaded on : Mon Sep 29 23:27:36 IST 2025NEUTRAL CITATION C/FA/2331/2008 JUDGMENT DATED: 29/09/2025 undefined
18. In light of the above discussion, this Court is of the considered view that the findings recorded by the trial Court are perverse, contrary to the material on record, and unsustainable in law. The respondents have failed to establish their case, whereas the appellants have been able to demonstrate that no such loan transaction had taken place.
19. Further, the Court has committed an error while interpreting the documents at Exhibits 44 and 45. In fact, in the second document dated 18.06.2001, while interpreting its clauses, it was specifically the duty cast upon the respondents-original plaintiffs to negotiate with the bank regarding the dues of the present appellants, in which the appellants were also to be a party to such negotiation. However, no such condition or obligation is mentioned in the first document.
20. Within a span of only two years, no necessity has been shown as to why the second document came to be executed by the respondents-original plaintiffs, and no explanation worth the name has been offered in this regard. Therefore, the observation made by the Trial Court in paragraph 31, wherein the Court has drawn an inference that since the defendants (original appellants) were not in possession, it must be presumed that they had handed over possession of the entire agricultural Page 34 of 40 Uploaded by SURESH SOLANKI(HC00208) on Mon Sep 29 2025 Downloaded on : Mon Sep 29 23:27:36 IST 2025 NEUTRAL CITATION C/FA/2331/2008 JUDGMENT DATED: 29/09/2025 undefined land, is completely baseless and unsustainable. Even on a plain reading of the said unregistered documents, the Court cannot pass a decree for specific performance. However, without considering this settled legal position, the Court has directed the present appellants-original defendants to execute the sale deed in favour of the plaintiffs. In fact, such a direction is completely contrary to settled legal principles.
21. Even as per the recent pronouncement of the Hon'ble Apex Court, such documents can merely be relied upon for the purpose of evidence, but they cannot form the basis for granting a decree of specific performance. Even if the contents of the said unregistered documents are considered, such documents cannot be treated as legal and valid, as they constitute an illegal contract which cannot be enforced. On the basis of such an unenforceable agreement, a suit for specific performance cannot be decreed. Moreover, the respondents-original plaintiffs do not possess any valid and legal license for money lending, yet the Court has incorrectly presumed against the present appellants-original defendants that the amount in question was towards self-consideration. Therefore, while passing the decree of specific performance, the Court has committed serious errors of both law and facts. The Trial Court has also erred in presuming that the appellants had agreed and were ready Page 35 of 40 Uploaded by SURESH SOLANKI(HC00208) on Mon Sep 29 2025 Downloaded on : Mon Sep 29 23:27:36 IST 2025 NEUTRAL CITATION C/FA/2331/2008 JUDGMENT DATED: 29/09/2025 undefined to pay interest at the rate of 24% on the amount allegedly advanced by the respondents-original plaintiffs.
22. Unless and until the respondents-original plaintiffs possess a valid license under the Bombay Money Lenders Act, they cannot charge interest at the rate of 24 percent as mentioned in the documents. Therefore, on a prima facie reading of the said documents, it is evident that they cannot form the basis for granting a decree of specific performance. I have also considered the provisions of Sections 23 and 24 of the Indian Contract Act, 1872 vis-à- vis the provisions of the Bombay Money Lenders Act. The said Act reveals that if any part of a single consideration for one or more objects, or any one or any part of any one of several considerations for a single object, is unlawful, the agreement is void. It also appears that the documents at Exhibit 44 and Exhibit 45 pertain to a period prior to the enactment of the Gujarat Money Lenders Act.
23. It appears that, without considering the aforesaid facts, even from a bare perusal of the documents it becomes evident that, prior to the institution of the suit, no legal notice was issued by the plaintiff to demonstrate his readiness and willingness to execute the sale deed. It is also well settled that unless a party proves that he was ready and willing to perform his part of the contract and had sufficient funds in his account to execute the sale deed, a decree of specific performance cannot be passed.
Page 36 of 40 Uploaded by SURESH SOLANKI(HC00208) on Mon Sep 29 2025 Downloaded on : Mon Sep 29 23:27:36 IST 2025NEUTRAL CITATION C/FA/2331/2008 JUDGMENT DATED: 29/09/2025 undefined In the present case, till the date of institution of the suit, the plaintiff has not shown such readiness and willingness to perform the contract. As per the settled legal principles repeatedly enunciated by the Hon'ble Apex Court, the impugned judgment and decree passed by the trial Court, being based upon such erroneous and illegal findings, deserves to be quashed and set aside.
24. So far as the aspect of possession is concerned, unless and until a registered sale deed is executed in favour of the purchaser, the possession of the property cannot be handed over until the full amount of consideration has been received. In the first document at Exhibit 44, there is no mention that the appellants had handed over possession of the subject parcel of land to the present respondents-original plaintiffs. Moreover, no documentary evidence has been produced before the Trial Court to prove that the respondents-original plaintiffs were ever put in possession on the basis of any unregistered agreement to sell. However, the Trial Court has completely ignored this vital aspect and has erroneously referred to and relied upon the contents of unregistered documents while passing the decree of specific performance.
25. All the three documents dated 13.01.1999, 11/18.06.2001 and 17.02.2004 are unregistered, and except for the limited purpose of evidence, they cannot be Page 37 of 40 Uploaded by SURESH SOLANKI(HC00208) on Mon Sep 29 2025 Downloaded on : Mon Sep 29 23:27:36 IST 2025 NEUTRAL CITATION C/FA/2331/2008 JUDGMENT DATED: 29/09/2025 undefined relied upon to grant a decree of specific performance. In my opinion, the Trial Court has completely overlooked this legal position and committed a serious error of law in passing the decree of specific performance. As per the recent pronouncements of the Hon'ble Apex Court, such unregistered documents can only be used for the purpose of evidence and cannot form the basis for granting a decree of specific performance.
26. Furthermore, even on issues which were neither framed nor any opportunity was given to the parties to lead evidence, the Trial Court could not have recorded any findings. Any judgment rendered on the basis of non- determination of such issues is not legal or valid and is a nullity in the eye of law.
27. Considering the ratio laid down by the Hon'ble Apex Court in the decision in case of Asma Lateef vs. Shabbir Ahmad reported in AIR 2024 SC 602, in my opinion, the findings recorded by the trial Court are completely erroneous and illegal, and therefore, the same deserve to be quashed and set aside. If we consider the recent judgment of the Hon'ble Apex Court in case of M.S. Anantharmurthy (supra), it clearly shows and suggests that an unregistered sale agreement does not confer any right, title, or possession. Therefore, if we apply the ratio laid down by the Hon'ble Apex Court, it is evident that the trial Court has completely overlooked this aspect and, Page 38 of 40 Uploaded by SURESH SOLANKI(HC00208) on Mon Sep 29 2025 Downloaded on : Mon Sep 29 23:27:36 IST 2025 NEUTRAL CITATION C/FA/2331/2008 JUDGMENT DATED: 29/09/2025 undefined based upon such unregistered documents, has passed a decree of specific performance, which is completely contrary to the settled legal principles enunciated by the Hon'ble Apex Court time and again. In fact, way back in 2012, the Hon'ble Apex Court had already clarified this position in the case of Suraj Lamp and Industries Pvt. Ltd. vs. State of Haryana, reported in (2012) 1 SCC 656.
28. It is now well settled that any revenue entry posted in the revenue record does not confer any right or title in favour of the person in whose name such entry is mutated. Unless and until a registered sale deed is produced for the purpose of posting any revenue entry, no right can be conferred upon such person. In the present case, there is no legal and valid transaction evidenced by any registered agreement to sell executed between the parties, and based upon such unregistered documents, the trial Court could not have passed a decree of specific performance. Therefore, the impugned judgment and decree passed by the trial Court is erroneous, illegal, and unjust, and the same deserves to be set aside.
29. In view of the above, present First Appeal is hereby allowed. The impugned judgment and decree dated 31.12.2007 passed by the learned 2nd Additional Senior Civil Judge and J.M.F.C, Navsari in Special Civil Suit No.3 Page 39 of 40 Uploaded by SURESH SOLANKI(HC00208) on Mon Sep 29 2025 Downloaded on : Mon Sep 29 23:27:36 IST 2025 NEUTRAL CITATION C/FA/2331/2008 JUDGMENT DATED: 29/09/2025 undefined of 2005 is hereby quashed and set aside. No order as to costs. The record and proceedings shall be sent back to the concerned trial Court forthwith. The connected civil applications are also hereby disposed of.
FURTHER ORDER:-
After the order is pronounced, Mr. Chinmay Gandhi, learned counsel for the respondents has requested to stay the further implementation and execution of the order passed by this Court for a period of eight weeks.
Considering the facts of the case and since more than 20 years the respondents are enjoying the possession of the land in question without there being any right over the same, the request is turned down.
Sd/-
(HEMANT M. PRACHCHHAK,J) SURESH SOLANKI Page 40 of 40 Uploaded by SURESH SOLANKI(HC00208) on Mon Sep 29 2025 Downloaded on : Mon Sep 29 23:27:36 IST 2025