Allahabad High Court
Prem Kumar And Others vs Gurdev Singh And Others on 11 December, 2024
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2024:AHC:193613 Reserved on 22.11.2024. Delivered on 11.12.2024 a.f.r. In Chamber Case :- SECOND APPEAL No. - 694 of 2001 Appellant :- Prem Kumar And Others Respondent :- Gurudev Singh And Others Counsel for Appellant :- ,Amitabh Agarwal,B. N. Agarwal,B. N. Agarwal,Mrinalini Risu,P. K. Jain,Ram Prakash Srivastava,Sanjay Agrawal Counsel for Respondent :- J.P.Pandey, ,Adarsh Kumar,Archit Mehrotra,J.P.Singh,Madan Lal Rai,Manish Goyal,Nasiruzzaman,R.S.Maurya,Rahul Sahai Hon'ble Kshitij Shailendra,J.
1. The instant second appeal at the instance of defendants of Original Suit No.169 of 1983 (Gurudev Singh v. Prem Kumar and others) arises from a suit for specific performance of an unregistered Agreement for Sale (in short 'AFS') in relation to an immovable property situated in District Meerut. The trial court decreed the suit by judgment and order dated 20.10.1997, against which, the defendants filed Civil Appeal No. 84 of 1997 (Prem Kumar Sachdeva and another v. Gurudev Singh) which met the fate of dismissal by judgment and decree dated 25.01.2001.
Brief facts of the case
2. One Gurudev Singh instituted the suit in question, initially at Jullundur (now known as Jalandhar), State of Punjab, where it was registered as Original Suit No.26 of 1980. Decree was claimed against three defendants on the basis of AFS dated 31.05.1977 qua land bearing Khasra Nos. 1035 and 1049 situated at Village Ghat, Pargana, Tehsil and District Meerut on the plea that defendants No.1 and 2 had executed a registered power of attorney dated 24.04.1977 in favour of defendant No.3- Puran Chand Sachdeva (in short 'PCS') authorizing him to enter into an AFS. An agreement was, accordingly, executed by the Attorney and a sum of Rs.55,000/- was received by the defendants in advance as part of sale consideration and he agreed to pay the balance amount before the competent registering authority at the time of registration of sale deed. The date fixed for execution of the sale deed was pleaded as 15.07.1977. It was stated in the plaint that on 14.07.1977, the plaintiff tendered balance sale price amounting to Rs.1,42,014/- besides cost of stamp and registration expenses and through a telegram dated 11.07.1977, he intimated the defendants that the plaintiff would reach Meerut on 14.07.1977 for registration of sale deed and the defendants should keep ready the income tax certificate. When, on 15.07.1977, the plaintiff waited for the defendants before the competent registering authority at Meerut but defendants did not appear to execute the sale deed, the suit was filed. The cause of action was alleged to have accrued on 31.05.1977 at Jalandhar and, then, on 15.07.1977.
3. The defendants No.1 and 2, i.e. the appellants herein, filed written statement taking a ground that power of attorney dated 23.05.1977 executed in favour of defendant No.3 had been cancelled on 25.05.1977, publication in respect whereof was made in daily newspaper Dainik Prabhat on 26.05.1977 and, therefore, the Attorney did not remain competent to execute an agreement or to receive advance money. Regarding execution of the agreement, it was pleaded that someone had made defendant No.3 to drink in Jalandhar, he did not remain in his senses and execution of the agreement was the result of such mischief.
Trial Court's Judgment
4. The trial court, after recording a finding that defendant Nos.1 and 2 had admitted execution of power of attorney in favour of defendant No.3 who failed to prove its due cancellation, the defendant No.3 was competent to execute an agreement. It disbelieved the defence and held the agreement as a duly proved document. As far as the question of "readiness and willingness", the trial court recorded that plaintiff had successfully established the said component by not only reaching the Sub Registrar's office on 15.07.1977 but also by opening a bank account on 14.07.1977 and depositing the money therein for the purposes of making payment to the appellants. When the plea was taken by the appellants as regards non-maintainability of the suit for want of registration of AFS, the trial court discarded the said objection by observing that since the agreement was executed in Jalandhar, i.e the State of Punjab, there being no requirement of registration in Punjab, merely because the property is situated in the State of U.P., the agreement could not be discarded.
Appellate Court's Judgment
5. The defendant appellants filed Civil Appeal No.84 of 1997 that was also dismissed by the first appellate court on 25.01.2001 simply confirming the decision of the trial court.
Return of Plaint from Punjab to U.P.
6. A significant feature of this case is that the suit was filed in Jalandhar, State of Punjab where an issue was framed regarding territorial jurisdiction of Punjab Court. The issue was decided in favour of the defendants and, consequently, the plaint was returned for being presented before the competent court at Meerut. Consequently, the plaint was represented before Civil Court, Meerut where it was numbered as Original Suit No.169 of 1983.
Admission Order
7. The instant second appeal was admitted by order dated 10.05.2001 on the following single question:-
"Whether the Trial Court and Lower Appellate Court wrongly held that provisions of Section 17(1) of Indian Registration Act are not applicable to the agreement in question?"
8. However, recently, Civil Misc. Application No. 32 of 2024 was filed by the appellants with a prayer to add three more questions of law and to hear the appeal on those questions too. This Court, by order dated 15.07.2024, disposed off the said application with the observation that by virtue of power conferred upon this Court under sub-Section (5) of Section 100 Civil Procedure Code, 1908, the appeal can be heard on additional questions also with a further observation that the additional questions of law pressed by the appellants shall be considered at the time of final hearing of appeal and it would be open for the respondents side to argue that such questions do not arise for consideration.
Substantial questions of law reframed and added
9. The appeal was heard at length and during the course of hearing and based upon the arguments advanced by both the sides, this Court proceeds to hear instant appeal on following substantial questions of law:-
(i). Whether a decree for specific performance based upon an unregistered agreement for sale dated 31.05.1977 is at all sustainable?
(ii). Whether the plaintiff-respondents utterly failed to aver and prove "readiness and willingness" as regards execution of the sale deed as per parameters of law recognized by Civil Procedure Code, 1908 and Specific Relief Act, 1963?
(iii). Whether evidence led by power of attorney holder in respect of matters which were not in his personal knowledge could suffice granting a decree?"
Learned Counsel heard
10. Heard Sri Pramod Kumar Jain, learned Senior Counsel assisted by Mr. Sanjay Agrawal, for the appellants and Sri Rakesh Pandey, learned Senior Counsel assisted by Sri Jyoti Kumar Singh, Ms. Vishakha Pandey, Sri Adarsh Kumar & Ms. Krishna Shukla for the contesting respondents.
Appellants' arguments
11. Assailing the validity of the impugned decree(s), Shri Pramod Kumar Jain, learned counsel vehemently argued that the AFS dated 31.05.1977, being an unregistered document, in view of the amendments made in the Transfer of Property Act, 1882 (hereinafter referred to as 'the Act of 1882') as well as Registration Act, 1908 (hereinafter referred to as the Act of 1908), suit could not be decreed and both the courts below have grossly erred in this regard; that the plaintiff utterly filed to specifically aver and prove "readiness and willingness" on his part to get the sale deed executed and the pleadings contained in paragraph No.8 of the plaint are not in consonance with Section 16 (c) of the Specific Relief Act, 1963 (hereinafter referred to as 'the Act of 1963') read with Order VI Rule 3, Appendix A, Forms 47 and 48; that the suit was instituted in the year 1980 in Jalandhar, the plaint was returned on 27.08.1982, the suit was re-registered before the Civil Court, Meerut on 30.08.1982 and, just before that, the plaintiff Gurudev Singh executed a power of attorney in favour of Gurubaksh Singh on 27.05.1982 and since the plaintiff did not appear in witness box, the oral testimony of attorney Gurubaksh Singh would not suffice proving "readiness and willingness" of the plaintiff, inasmuch as, in order to succeed in his claim, a plaintiff has to establish before the civil court that he was, is and has been ready and willing to get the sale deed executed right from the date of execution of the agreement or the date fixed for performance of the agreement till the decree is drawn. Submission is that attorney Gurubaksh Singh did nothing nor could he do anything to establish readiness and willingness since 1977 till 1982 i.e. for a period of five years and, hence, the courts below have wrongly treated the claim for specific performance as proved.
12. Assailing the finding of the courts below that there was no requirement of registration in the State of Punjab, Shri Jain vehemently argued that as per Section 17 read with Section 49(c) of the Act of 1908 and Section 54 of the Act of 1882, as applicable in the State of U.P. after amendments incorporated by U.P. Act No.57 of 1976, since the property is situated in Meerut, i.e. the State of U.P., if the plaintiff wanted the Court to receive and read the agreement in evidence, he should have got the agreement re-registered in U.P. in terms of Sections 23, 24 and 25 of the Act of 1908 and, in the event of refusal by the Registrar to re-register the agreement, the plaintiff had a remedy of filing appeal under Section 72 of the Act of 1908 but he, having done nothing and having continued to press his claim based upon an unregistered agreement, the suit was bound to fail. Shri Jain pressed various statutory provisions during the course of arguments and placed reliance upon various authorities out of which relevant authorities shall be discussed hereinlater.
13. Shri Jain also argued that on 29.05.1979, the plaintiff sent a notice (Paper No.17-Ka, Ex. P9) calling upon the defendant to pay a sum of Rs.55,000/- alongwith cost of notice within one month with a clear stipulation that, in default, suit for recovery of the said amount would be filed in civil court at Jalandhar. Submission is that two years after the date fixed for execution of the sale deed, when the plaintiff did not issue notice calling upon the defendants to execute the sale deed but pressed his claim for refund of money paid to the defendants' attorney, the notice, in itself, establishes that the plaintiff was neither ready nor willing to get the sale deed executed but was interested in refund of money only.
Respondents' Arguments
14. Per contra, Shri Rakesh Pandey, learned Senior Counsel vehemently opposed all the submissions advanced by Shri Jain and submitted that once the defendants No.1 and 2 admitted execution of power of attorney in favour of the defendant No.3.- 'PCS', and failed to establish due cancellation thereof, they cannot raise any challenge to the competence of the attorney PCS; there being no bar under the law restraining execution of agreement at any place in India, since the agreement was executed in the State of Punjab where there is no requirement of registration, it was neither necessary to get the agreement re-registered in U.P. nor could the suit fail for want of registration. He further submitted that since the defendants No.1 and 2 denied execution of the agreement or atleast its due execution, the Registrar was bound to refuse to register the document as per Section 35 of the Registration Act, 1908 and, for this reason, any exercise suggested by Shri Jain to get the agreement re-registered would have been a futile exercise. Further submission is that since the document formed part of record of the suit proceedings , the plaintiff could not take it back from the civil court for the purposes of re-registration as the executant of the document was defendant No.3 and not the plaintiff.
15. As regards the amended provisions of Act of 1908 and Act of 1882, Shri Pandey, by referring to Section 17(1)(b) of the Act of 1908, submitted that agreement by itself does not create, declare, assign, limit or extinguish any right, title or interest in an immovable property and, therefore, it need not be registered. He vehemently argued that the only right created by an agreement in favour of a proposed transferee is the right to get the sale deed executed, which cannot be termed as a right in immovable property. He took aid of Section 54 of the Act of 1882 and submitted that a contract for sale, by itself, does not create any interest in or charge on immovable property and even the amended provisions would not come in the way of the plaintiff. By referring to Section 17(2)(v) of the Act of 1908, it was argued that requirements of sub-Section (1) Clauses (b) and (c) of Section 17 would not apply to any document other than contract for sale and such an exemption does not give rise to a legal necessity to get the contract for sale registered, inasmuch as, Clause (v) of sub-Section (2) would again relate back to Section 17(1)(b) and, therefore, it would again have to be seen as to whether contract for sale, in itself, would create, declare, assign, limit or extinguish, whether in present or in future any right, title or interest to or in immovable property and once, it does not, there is no requirement of its registration.
16. As regards "readiness and willingness", Shri Pandey urged that when the date for execution of sale deed was fixed as 15.07.1977 and time was the essence of contract, since the plaintiff has successfully established that he came all through from Jalandhar to Meerut on 14.07.1977, opened a bank account in his name, deposited the balance amount required to be paid to the defendants No.1 and 2, presented himself before the Sub Registrar on 15.07.1977, "readiness and willingness" was well established and nothing more was required for decreeing the suit. As regards competence of Gurubaksh Singh to prove the plaintiff's case, Shri Pandey submitted that he was real brother of plaintiff-Gurudev Singh and his testimony could not be discarded merely because he was also an attorney and plaintiff did not appear in witness box. He also submitted that law recognises oral transfer and oral understanding regarding transaction of sale and, therefore, registration or non-registration of the agreement would be irrelevant in the instant case, particularly when the appellants' attorney PCS acted in furtherance of the power attorned upon him.
17. As regards Shri Jain's submission based upon notice 17-Ka, it was argued that sending a notice calling upon the defendants to execute a sale deed, not being a pre-requisite of institution of suit for specific performance, merely because the plaintiff sent notice 17-Ka asking the defendants to refund the advance money to the plaintiff, this, in itself, does not mean that plaintiff lost his claim for getting the sale deed executed and the notice, therefore, does not amount to either waiver or relinquishment of right to get the sale deed executed. Shri Pandey, in support of his submissions placed reliance upon various authorities relevant of which shall be discussed hereinlater.
Analysis of Rival Contentions Re:- First Question:- Whether a decree for specific performance based upon an unregistered for sale dated 31.05.1977 is at all sustainable?
18. In view of the questions framed by this Court, it is not necessary to comment upon requirement or no requirement of getting the AFS re-registered in the State of U.P. and whether the plaintiff was obliged or not obliged to do that, is irrelevant as the Court has to examine validity of the decree based upon unregistered agreement, whatever might have been the reason behind its non-registration.
19. As regards requirement of registration of an AFS, it is to note that the U.P. Civil Laws (Reforms and Amendment) Act, 1976 (U.P. Act No. 57 of 1976) came into force w.e.f. 1-1-1977. This Act amended the Registration Act 1908 as well as the Transfer of Property Act, 1882, besides several other enactments. Section 54 of the Transfer of Property Act, 1882, as applicable to the State of U.P., w.e.f. 1-1-1977, reads as under:
"Section 54. "Sale" is a transfer of ownership in exchange for a price paid or promised or part-paid and part-promised.
Sale how made- Such transfer, in the case of tangible immovable property [***], or in the case of a reversion or other intangible thing, can be made only by a registered instrument.
Contract of Sale- A contract for the sale of immovable property is a contract that a sale of such property shall take place on terms settled between the parties.
It does not, of itself, create any interest in or charge on such property.
Such contract can be made only by a registered instrument."
20. Section 3 of the Transfer of Property Act, 1882 defines-
"Instrument- as a non testamentary instrument "Registered- means registered in any part of the territories to which this Act extends under the law for the time being in force regulating the registration of documents."
21. Section 17 of the Registration Act, 1908 Act provides that certain documents are required to be compulsorily registered and, other documents are exempted from being registered. Section 17(1)(b) of the Registration Act, 1908, as applicable in the State of U.P., reads as under:
"Section 17(1)- The following documents shall be registered- (1) The following documents shall be registered, if the property to which they relate is situate in a district in which, and if they have been executed on or after the date on which, Act No.XVI of 1864, or the Indian Registration Act, 1877, or this Act came or comes into force, namely:-
.........................................
(b) other non-testamentary instruments which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent to in immovable property."
22. Section 17(2)(v) of the Act of 1908 reads as under:
"Section 17(2)- Nothing in clauses (b) and (c) of sub-section (1) applies to-
(v) any documents other than documents specified in sub-section (1-A)] [other than contract for sale] not itself creating, declaring, assigning, limiting or extinguishing any right, title or interest to or in immovable property, but merely creating a right to obtain another document which will, when executed, create, declare, assign, limit or extinguish any such right, title or interest; or The words "other than contract for sale" occurring in Section 17(2)(v) of the Registration Act have been inserted by U.P. Act No. 57 of 1976 w.e.f. 1-1-77.
23. Section 4 of the Transfer of Property Act, 1882 reads as under:
"4. Enactments relating to contracts to be taken as part of Contract Act and supplemental to the Registration Act. - The chapters and sections of this Act which relate to contracts shall be taken as part of the Indian Contract Act, 1872 (IX of 1872).
[And Section 54, Paragraphs 2 and 3, 59, 107 and 123 shall be read as supplemental to the Indian Registration Act, 1908 (XVI of 1908).]"
24. Thus, from a combined reading of Sections 3, 4 and 54 of the Act of 1882 and, Section 17 of the Act of 1908, as applicable to the State of U.P., as amended by U.P. Act 57 of 1976, it is clear that every contract of sale of an immovable property situated in any district of U.P. shall be made only by a registered instrument. Even though a contract for sale of immovable property does not by itself create any interest in or charge on such property and only creates a right to obtain another document which will, when executed, create, declare, assign, limit or extinguish any such right, title or interest, nonetheless, the said contract for sale of an immovable property is required to be registered in the State of U.P. w.e.f. 1-1-1977.
25. The next question which arises for consideration is whether an unregistered document for sale of an immovable property, could still be enforced in a suit for specific performance. At this stage, the Court may refer to Section 49 contained in the Registration Act, 1908 alongwith U.P. Amendments made therein by U.P. Act No.57 of 1976, w.e.f. 01.01.1977. A careful perusal of the amendments made would reflect that certain provisions relating to admissibility of an unregistered agreement in a suit for specific performance have been "omitted" and requirement of registration has been "inserted." The provision reads as under:-
Central Act "49. Effect of non-registration of documents required to be registered.- No document required by section 17 [or by any provision of the Transfer of Property Act, 1882 (4 of 1882) to be registered shall-
(a) affect any immovable property comprised therein, or
(b) confer any power to adopt, or
(c) be received as evidence of any transaction affecting such property or conferring such power, unless it has been registered:
[Provided that an unregistered document affecting immovable property and required by this Act, or the Transfer of Property Act, 1882 (4 of 1882), to be registered may be received as evidence of a contract in a suit for specific performance under Chapter II of the Specific Relief Act, 1877 (3 of 1877) [***] or as evidence of any collateral transaction not required to be effected by registered instrument.] In Uttar Pradesh:
In Section 49,-
(i) in the first paragraph, after the words "or by any provision of the Transfer of Property Act, 1882", insert the words "or of any other law for the time being in force";
(ii) for clause (b), substitute the following clause, namely:-
(b) confer any power or create any right or relationship, or";
(iii) in clause (c), after the words "such power", insert the words "or creating such right or relationship";
(iv) in the proviso, omit the words "as evidence of a contract in a suit for specific performance under Chapter II of the Specific Relief Act, 1877, or."
[Vide Uttar Pradesh Act 57 of 1976, sec. 34 (w.e.f. 1--1-1977).]"
26. The result of these amendments is, that, prior to 01.01.1977, an unregistered contract for sale qua immovable property situated in U.P. could be enforced in a suit for specific performance of a contract, but after the amendment in Section 49 of the Registration Act w.e.f. 01.01.1977, an unregistered agreement cannot be enforced in a suit for specific performance of a contract nor can it be read in evidence.
27. Reliance placed by Shri Jain on the judgments of Surendra Kumar v. Amarjeet Singh and others, 2004 (4) AWC 3134 All, Vijay Kumar Sharma v. Devesh Behari Saxena, AIR 2008 All 66 supports the submissions made by him and, therefore, it is held that an unregistered AFS, though executed in Jalandhar, State of Punjab but being in respect of immovable property situated in Meerut i.e. State of U.P. and after coming into force of the amendments incorporated by U.P. Act No.57 of 1976 was clearly inadmissible in evidence and no decree for specific performance could be drawn on that basis. Reliance placed by Shri Rakesh Pandey on the judgment of K. Arumuga Velaiah v. P.R. Ramasami & others, (2022) 3 SCC 757 does not help him for the reason that the Apex Court was dealing with a case arising from State of Madras with reference to a different provision contained under Section 17 of the Act of 1908 and though it was held that the agreement does not by itself create a right or interest in immovable property but merely creates a right to obtain another document and, therefore, the former document does not require registration, since there was no discussion, nor could there be, as regards admissibility of an unregistered document executed after 01.01.1977 in relation to an immovable property situated in the State of U.P. where, as aforesaid, such document has been held to be inadmissible, the ratio of law laid down by Supreme Court in K. Arumuga Velaiah (supra), with due respect, does not apply in the present case.
28. Similarly, judgment of K.Nanjappa (Dead) by Lrs. v. R.A. Hameed @ Ameersab (Dead) by Lrs. and another, (2016) 1 SCC 762 based upon oral contract would be of no assistance for the respondents, inasmuch as, the said case had arisen from State of Karnataka and the Supreme Court held that in a case where the plaintiff comes forward to seek a decree for specific performance based upon an oral agreement or a written contract, heavy burden lies on the plaintiff to prove that there was consensus ad idem between the parties in the concluded AFS. The Court may note here that in the instant case, the agreement was seriously attacked on by the defendant-appellants and there was no consensus ad idem between the parties to the suit. Even otherwise, the plea of oral transfer based upon Section 9 which provides that "a transfer of property may be made without writing in every case in which a writing is not expressly required by law" is not available to the respondents since, in the State of U.P., requirement of law is that there has to be a written and duly registered AFS for the purposes of granting a decree for specific performance. Hence, the argument based upon oral contract has no substance.
29. In view of the above, first question is answered in favour of the defendant-appellants and it is held that decree based upon an unregistered AFS dated 31.05.1977 is not according to law.
Re: Second and Third Questions:-
"(ii). Whether the plaintiff-respondents utterly failed to aver and prove "readiness and willingness" as regards execution of the sale deed as per parameters of law recognized by Civil Procedure Code, 1908 and Specific Relief Act, 1963?
(iii). Whether evidence led by power of attorney holder in respect of matters which were not in his personal knowledge could suffice granting a decree?"
30. Although the appeal can succeed only in the light of answer to the first question, since two more questions have been framed and require answer in the light of arguments advanced and also being necessity of law, the arguments of both sides on the question of "readiness and willingness" are being dealt with.
31. It is first necessary to refer Section 16(c) of the Specific Relief Act, 1963 which reads as under:-
"16. Personal bars to relief.- Specific performance of a contract cannot be enforced in favour of person-
......
(c) who fails to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than terms the performance of which has been prevented or waived by the defendant."
32. Simultaneously, Order VI Rule 3 CPC needs reproduction as under:-
"3. Forms of Pleading.-The forms in Appendix A when applicable, and where they are not applicable forms of the like character, as nearly as may be, shall be used for all pleadings."
33. Corresponding Forms 47 and 48 are also reproduced as under:-
"Form No.47 SPECIFIC PERFORMANCE (NO.1) (Title) A.B., the above-named plaintiff, states as follows:-
1. By an agreement dated the day of and signed by the defendant, he contracted to buy of [or sell to] the plaintiff certain immovable property therein described and referred to, for the sum of rupees.
2. The plaintiff has applied to the defendant specifically to perform the agreement on his part, but the defendant has not done so.
3. The plaintiff has been and still is ready and willing specifically to perform the agreement on his part of which the defendant has had notice.
[As in paras 4 and 5 of Form No.1.]
6. The plaintiff claims that the Court will order the defendant specifically to perform the agreement and to do all acts necessary to put the plaintiff in full possession of the said property [or to accept a transfer and possession of the said property] and to pay the costs of the suit.
Form No.48 Specific Performance (No.2) (Title) A.B., the above-named plaintiff, states as follows:-
1. On the day of 20 , the plaintiff and defendant entered into an agreement, in writing, and the original document is hereto annexed. The defendant was absolutely entitled to the immovable property described in the agreement.
2. On the day of 20 , the plaintiff tendered rupees to the defendant, and demanded a transfer of the said property by a sufficient instrument.
3. On the day of 20 ,the plaintiff again demanded such transfer [or the defendant refused to transfer the same to the plaintiff.]
4. The defendant has not executed any instrument of transfer.
5. The plaintiff is still ready and willing to pay the purchase-money of the said property to the defendant.
[As in paras 4 and 5 of Form No.1.]
6. The plaintiff claims-
(1) that the defendant transfers the said property to the plaintiff by a sufficient instrument [following the terms of the agreement];
(2) rupees compensation for withholding the same."
34. Section 16(c) of the Act of 1963 postulates that specific performance of a contract cannot be enforced in favour of a person who fails to aver and prove that he has performed or has always been 'ready and willing' to perform the essential terms of the contract which are to be performed by him. It provides for making a categorical averment about the party's readiness and willingness to perform his part of the terms and conditions and also to prove it. The expression used is "ready and willing" which is of great significance. It is a combination of two words 'ready' and 'willing' which may appear to carry the same meaning but are not synonyms. The simple dictionary meaning of the word 'ready' is preparedness for the moment or to be equipped with what is needed; whereas 'willing' denotes inclination to do a thing voluntarily or without reluctance. So 'readiness' connotes physical state of affairs and 'willingness' is linked with the mental state of things. To put it more lucidly, the expression "ready and willing" implies capacity to act as well as inclination to do a thing. Few examples may illustrate the concept:-
(i) Army may be ready for a war but may not be willing to go for a war;
(ii) a person may be ready to establish a new business but not willing to put his earnings at a risk and;
(iii) on a lighter note relating to our own institution of justice, a learned counsel may be fully ready to argue a case in terms of his preparation but not willing to argue it before a particular bench.
35. Now dealing with relevant provisions of C.P.C., the essentials of pleadings are provided in Order VI Rule 3 that stipulates that Forms as prescribed shall be used for all pleadings. Format of plaints for suits for specific performance of an agreement is provided in afore-quoted Forms 47 and 48 of Appendix A to the CPC. The aforesaid forms clearly provide for making an averment that the plaintiff "has been and still is ready and willing specifically to perform the agreement on his part" or that " the plaintiff is still ready and willing to pay the purchase money of the said property to the defendant". The aforesaid forms make the requirements more strict as would be apparent from use of present perfect tense as well as present indefinite tense. The Court finds that the pleadings contained in the plaint in the present case are not strictly in consonance with the prescribed Forms 47 and 48 of Appendix A to the CPC and lack the necessary averment of 'willingness' of the plaintiff to carry out his obligation as per the agreement.
36. On the same lines, this Court had allowed a second appeal filed by the defendants in the case of Ram Singh v. Sughar Singh, 2010 (6) AWC 6331 by reproducing the fourth paragraph of the plaint of the suit giving rise to the said appeal. In the instant case, 'paragraph 8' of the plaint needs reproduction as under:-
"8. That the plaintiff was and is still ready to pay the balance purchase money of the said property to the defendants besides cost of stamp and registration expenses in terms of the agreement for sale and get a sufficient instrument of transfer in his favour."
37. Notably, the strict requirements of law, as discussed above, were not fulfilled by the plaintiff and, therefore, merely because the plaintiff came from Jalandhar to Meerut on 14.07.1977, opened a bank account and presented himself before the Sub-Registrar on 15.07.1977 was not sufficient to decree the suit. At the most, such steps by the plaintiff could be treated as a proof of his readiness and willingness in the year 1977 but averments in that regard in consonance with the strict requirements of law being missing from the plaint filed in 1980 and few other circumstances being reflective of plaintiff's unwillingness, the decree drawn is not according to law.
38. Here the Court may also mention that the suit was filed in Jalandhar on 27.05.1980 i.e. just two months before expiry of period of limitation. Though bar of suit on the ground of limitation is not an issue involved in the present case, some attending circumstances on record are relevant to adjudge validity of the decree. As established on record, nothing was done by the plaintiff from 15.07.1977 till 28.05.1979, i.e. for about two years in the direction of getting the sale deed executed though the date fixed for performance had passed away. Interestingly, the only written notice by the plaintiff to the defendants is the notice dated 29.05.1979 (Paper No.17 Ka, Ex. P9) which does not raise a demand for executing the sale deed.
39. The Court while deciding the question of "readiness and willingness" has to focus on the maintained continuity or discontinuity as regards "readiness and willingness". In the instant case, there was continuous silence for about two years from the date fixed for performance. The silence broke in terms of issuance of notice of demand of earnest money and not a request for execution of sale deed. Further, the power of attorney was executed by plaintiff in favour of Gurubaksh Singh, two years after institution of suit in Jalandhar i.e. on 27.05.1982 and, immediately thereafter, the plaint was returned and was presented on 30.05.1982 before the civil court, Meerut. The endorsement made on plaint is that it was returned to Gurubaksh Singh. The plaintiff did not make attempt to prove his plaint case and though the attorney was real brother of plaintiff, this, in itself, is not sufficient to prove continuous "readiness and willingness" on the part of the plaintiff to get the sale deed executed. A very heavy burden would lay upon the plaintiff to establish at least five years of readiness and willingness i.e. since 1977 to 1982 but evidence to that effect is quite lacking. Here, the judgment of Division Bench cited on behalf of the appellants in Manisha Mahendra Gala & others v. Shalini Bhagwan Avatramani & others, (2024) 6 SCC 130 should be referred. The Supreme Court, in paragraphs 28, 29, 30 and 31 of the report, held as under:-
28. The law as understood earlier was that a General Power of Attorney holder though can appear, plead and act on behalf of a party he represents but he cannot become a witness on behalf of the party represented by him as no one can delegate his power to appear in the witness box to another party. However, subsequently in Janki Vashdeo Bhojwani v. IndusInd Bank Ltd., (2005) 2 SCC 217, the Apex Court held that the Power of Attorney holder can maintain a plaint on behalf of the person he represents provided he has personal knowledge of the transaction in question. It was opined that the Power of Attorney holder or the legal representative should have knowledge about the transaction in question so as to bring on record the truth in relation to the grievance or the offence. However, to resolve the controversy with regard to the powers of the General Power of Attorney holder to depose on behalf of the person he represents, this Court upon consideration of all previous relevant decisions on the aspect including that of Janki Vashdeo Bhojwani (supra) in A.C. Narayan v. State of Maharashtra, (2014) 11 SCC 790 concluded by upholding the principle of law laid down in Janki Vashdeo Bhojwani (supra) and clarified that Power of Attorney holder can depose and verify on oath before the court but he must have witnessed the transaction as an agent and must have due knowledge about it. The Power of Attorney holder who has no knowledge regarding the transaction cannot be examined as a witness. The functions of the General Power of Attorney holder cannot be delegated to any other person without there being a specific clause permitting such delegation in the Power of Attorney; meaning thereby ordinarily there cannot be any sub-delegation.
29. It is, therefore, settled in law that Power of Attorney holder can only depose about the facts within his personal knowledge and not about those facts which are not within his knowledge or are within the personal knowledge of the person who he represents or about the facts that may have transpired much before he entered the scene. The aforesaid Power of Attorney holder PW-1 had clearly deposed that he is giving evidence on behalf of plaintiff Nos. 2 to 4 i.e. the Gala's. He was not having any authority to act as the Power of Attorney of the Gala's at the time his statement was recorded. He was granted Power of Attorney subsequently as submitted and accepted by the parties. Therefore, his evidence is completely meaningless to establish that Gala's have acquired or perfected any easementary right over the disputed rasta in 1994 when the suit was instituted.
30. The only proper and valuable evidence in this regard could have been that of Joki Woler Ruzer who had instituted the suit but he failed to depose before the court. His pleadings are also vague and do not specifically state that he had been in use of the rasta in dispute for over 20 years or that he had acquired and perfected easementary right over the said rasta by prescription or necessity.
31. In the absence of any evidence or material to show that Joki Woler Ruzer had actually acquired any easementary right over the rasta in dispute before the institution of the suit, he could not have transferred any such right in favour of the Gala's.
40. Another decision cited by Shri Jain in the case of Rajesh Kumar v. Anand Kumar and others, 2024 (4) AWC 3271 (SC) needs a mention here. The Division Bench, having noticed the three judgments of Supreme Court in Janki Vashdeo Bhojwani and another v. Indusind Bank Ltd. and others, (2005) 2 SCC 217, Man Kaur v. Hartar Singh Sangha, (2010) 10 SCC 512 & A.C. Narayanan v. State of Maharashtra and another, (2014) 11 SCC 790, held that in view of Section 12 of the Act of 1963, in a suit for specific performance wherein the plaintiff is required to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract, a power of attorney holder is not entitled to depose in place and instead of the plaintiff (principal). In other words, if the Power of Attorney Holder has rendered some 'acts' in pursuance of power of attorney, he may depose for the principal in respect of such acts, but he cannot depose for the principal for the act done by the principal and not by him. Similarly, he cannot depose for the principal in respect of the matter of which only the principal can have personal knowledge and in respect of which the principal is entitled to be cross-examined. If a plaintiff, in a suit for specific performance is required to prove that he was always ready and willing to perform his part of the contract, it is necessary for him to step into the witness box and depose the said fact and subject himself to cross-examination on that issue. A plaintiff cannot examine in his place, his attorney holder who did not have personal knowledge either of the transaction or of his readiness and willingness. The term 'readiness and willingness' refers to the state of mind and conduct of the purchaser, as also his capacity and preparedness, one without the other being not sufficient. Therefore, a third party having no personal knowledge about the transaction cannot give evidence about the readiness and willingness.
41. In view of the above discussion, it is held that plaintiff's case of readiness and willingness was neither pleaded nor proved in accordance with the requirements of law. Consequently, second and third questions are also answered in favour of the appellants.
Impleadment Application
42. It is noteworthy that few persons namely Subhash Chanda and others filed an impleadment application No.150372 of 2004 under Order I Rule 10 C.P.C. seeking their impleadment and right of hearing in the present appeal in the capacity of respondents. The application was allowed by a Co-ordinate Bench of this Court by order dated 08.04.2022. Hearing in this appeal continued on various dates, however, on none of the dates any argument was advanced on behalf of the newly impleaded respondents though they are the contesting respondents in connected Second Appeal No.512 of 2000. Even on the last date i.e. 22.11.2024 when the judgment in both the appeals was reserved and connection in between the two appeals was described in the orders in the presence of learned counsel for all the parties to the lis covered by both the second appeals, no argument on behalf of newly impleaded persons was raised. Therefore, the matter has been decided on the basis of contest made by plaintiff and defendants and/or their substituted heirs.
Whether any relief can be granted to respondents.
43. Once this Court has held that suit could not be decreed for relief of specific performance of the agreement, but execution of the agreement was well established and the defendant-appellants had failed to dislodge its due execution, a question would arise as to whether the plaintiff-respondents would also be entitled for any relief. In this regard, Shri Jain drew attention of this Court towards order dated 26.08.2004 passed in the instant appeal whereby execution of the impugned decree was stayed subject to deposit of a sum of Rs.20,000/- per year by the appellants before the trial court w.e.f. 01.12.2004 onwards with a further observation that disposal of the amount so deposited would abide by the final decision in the appeal. The Court also observed that the amount deposited would be invested in some interest bearing Term Deposit in a Nationalized Bank. Shri Jain submits that the aforesaid order is being continuously complied with by the appellants by making yearly deposits strictly as directed by this Court. Therefore, once the Court has held that plaintiff is not entitled for a decree for specific performance of the agreement, in order to balance the equities and considering the length of litigation, it is hereby directed that the amount deposited by the appellants and invested in Nationalized Bank in terms of the order dated 26.08.2004 passed in the instant appeal shall be released with accrued interest in favour of the plaintiff-respondents forthwith. The concerned bank is directed not to cause any delay in this regard. If some aid of machinery of district court is required, the same shall be facilitated without any delay.
44. Consequently, the appeal is allowed.
45. The impugned judgment, order and decree dated 20.10.1997 pronounced, passed and drawn by the First Additional Civil Judge, (Senior Division), Meerut in Original Suit No.169 of 1983 (Gurudev Singh v. Prem Kumar and others) and judgment, order and decree dated 25.01.2001 pronounced, passed and drawn by 18th Additional District Judge, Meerut in Civil Appeal No.84 of 1997 (Prem Kumar and another v. Gurudev Singh and another) are hereby set aside and the Original Suit No.169 of 1983 stands dismissed for the relief of specific performance but a relief of refund of money to the plainiffs in terms of releasing the amount deposited by the appellants, as directed under paragraph 43 of this judgment, is granted to the respondents.
46. No order as to cost.
Order Date:-11.12.2024 Jyotsana (Kshitij Shailendra, J.)