Karnataka High Court
Indira Bai vs Parashuram Kallappa Hande on 20 October, 1987
Equivalent citations: ILR1988KAR1307
JUDGMENT Hiremath, J.
1. The appellant was the plaintiff in O.S.No.75/72 before the Court of the II Additional Civil Judge, Belgaum, for a decree for specific performance of an agreement on the part of the defendants to sell the suit property. The suit property is a shop building situated at Kirloskar Road, Belgaum City, bearing CTS.No.1766 measuring 226 sq. yards with a backyard and a right to use privy and well in an adjoining property. The 2nd defendant who is also the second respondent in this appeal has been carrying on a cold drink house under the name and style "Imperial Cold Drink House, Belgaum."This property originally belonged to her deceased husband Nagesh. He sold it away to defendant-1 for Rs.8,000/- on 15-7-1955. Nagesh was in financial difficulties when he was compelled to sell this property for Rs. 8,000/- as there were two mortgages of the same property and the mortgage debt was required to be discharged. Thus the mortgage money of Rs. 6,958-10 ps was left with the purchaser defendant-1 and the remaining amount was received by Nagesh. Though the property situate in a busy locality at Belgaum, due to financial strain, Nagesh had to part with this property. He then died within 10 days thereafter and even her mother-in-law who was also a party to the Sale Deed died in a few days later. Under these helpless conditions to which the plaintiff was put she requested defendant-1 to reconvey the suit property and after long deliberation defendant-1 agreed to reconvey the same under the terms and conditions set out in the agreement. As the fate of the entire suit depends on the interpretation of this agreement it would be useful to reproduce the same to know what exactly was the intention of the parties while entering into this agreement.
"1) I have purchased from your husband and his mother CTS 1766 situated at Kirloskar Road, Belgaum. It was in possession of the tenants. I filed suits and obtained possession of the same through Court and now I am in actual possession of it wherein I have been conducting my business.
2) The said property is agreed to be sold to you for Rs. 11.000/-. Out of the said amount a sum of Rs. 8,000/- is payable by you to me after ten years from today and within two years from the expiry of 10 years. You should pay your own money to me. I will not receive your money for executing the sale deed within 10 years and within a period of two years therefrom if you pay meat any time I will convey the property to you. I am not bound to convey the property in the name of any other person. Firstly, you have to pay me Rs. 8,000/- and I will execute the sale deed and thereafter the actual possession of the suit property will be with me as a tenant for such period as like and at a fixed rent of Rs. 60/- per month. You can take possession only when I do not want the suit property as a tenant. The rent of the entire property is fixed at Rs. 60/- per month between you and me and you are not entitled to demand any higher rent.
3) After the sale transaction is over as stated above in the manner specified in Clause 2 you are to adjust the amount of Rs. 3000/- against the rent payable to me to you untill satisfaction at the rate of Rs. 60/- per month.
4) If you do not pay me the agreed amount and obtain a sale deed from me within the stipulated time this agreement should be treated as cancelled and you will have no right whatsoever in this connection.
5) The above conditions are binding on me and my heirs. This deed is voluntarily executed this day 22nd July 1960."
2. On 17-7-1972 plaintiff gave a notice to defendant-1 through her lawyer that she was ready and willing to perform her part of the contract; but at the same time intimating him that some of the conditions in the agreement are void and inoperative. When defendant-1 sent his reply dated 19-7-1972 informing her that he was ever willing to act according to the terms of the agreement the lawyer of the plaintiff sent a cheque for Rs. 8,500/- to the first defendant's lawyer for being paid to defendant-1 and this offer included consideration amount of Rs. 8,000/-and that Rs. 500/- towards expenses of stamp and registration etc. Though she waited till the last date of the period fixed for performing the contract the first defendant never came forward to perform his part of the contract.
3. According to her the suit agreement contains reciprocal promises and it can be severed into two parts, namely, one to do a legal act and the other an illegal act. The first part relating to payment of consideration of Rs. 8,000/- is quite proper and valid. She attacks the remaining entire part of the agreement as being illegal and void, namely, there is no reference in the agreement as to why she should pay Rs. 3,000/- to defendant-1 and on this account itself the agreement is void for want of consideration. Secondly, it violates Section 4 of the Mysore Rent Control Act (as the Rent Control Legislation then stood) inasmuch as confirmation of a tenancy without the permission of the Rent Controller is forbidden and therefore Section 23 of the Contract Act makes it invalid. Violation of Section 4 is met with penalty. Thirdly, the stipulation that defendant-1 should enjoy the suit property as a tenant under plaintiff-1 at a fixed rent of Rs. 60/- per month and also for such period as he likes is a clog or prohibition depriving the plaintiff from ever getting back possession of her property thereby defeating the provisions of Section 21 of the same Act. This creates interest in defendant-1 absolutely and the restriction operates as a clog on the property which is free and transferable. It smacks of a perpetual lease.
4. As the agreement contains reciprocal promises it is divisible and under Section 27 of the Contract Act, that part of the agreement which is illegal and bad be rejected and the other good and valid part retained. With this interpretation of hers she expressed her readiness and willingness to perform that part of the contract which according to her is quite valid and according to law. Whenever the Court orders she was wilting to deposit the remaining Rs. 3,000/- at any time. Nothing ultimately, averred that she had paid Rs. 8,000/- towards stamp duty and registration fee, she prayed for specific performance of this agreement.
5. The first defendant inter alia contended that the husband of the plaintiff Nagesh no doubt was in pressing need of money to discharge his own debts but at the same time it is useful to keep in mind the nature of the property and the locality where it was situate then. It was also in the occupation of a tenant then. Thus Nagesh was agreeable to sell this property for Rs. 8,000/- and the other reason was that this locality originally known as "Bogarves" was inhabited by prostitutes and respectable persons used to think twice before passing through this lane after sun-set. In view of these circumstances the mother of Nagesh approached him and requested him to purchase the property and accordingly the price was fixed at Rs. 8,000/-. After purchasing it defendant-1 instituted eviction proceedings against the tenant in possession of the property then and obtained a decree for eviction. He then spent considerable amount for establishing the cold drink house and necessary repairs to the premises were also carried out.
6. It was in July 1960 that both plaintiff and defendant- 1 entered into an agreement to sell the property for Rs. 11,000/- and it was specifically agreed that the first defendant should continue as a tenant in the premises at the agreed monthly rental and therefore all the terms of the contract are inseparable and as a whole it is one agreement. Even the balance price of Rs. 3,000/- was agreed to be retained with the plaintiff only for appropriating Rs. 60/-per month out of this money towards rent till this Rs. 3,000/- stood completely adjusted.
7. Though these are inseparable parts of the agreement the plaintiff sent a cheque only for Rs. 8,500/- through her advocate and in the letter accompanying it she never showed her willingness to perform all the terms of the contract which she was bound to perform. Defendant-1 returned it to her advocate as the payment was made conditionally and not in accordance with the terms of the agreement. It appears she was labouring under an impression that the agreement was an agreement for reconveyance. Mere sending of Rs. 8,500/-does not amount to readiness and willingness to perform her part of the contract. It is thus abundantly clear that the plaintiff was never ready and willing to perform her part of the contract. This agreement took place as far back as in the year 1960 and all the parts of it were valid even according to law then prevailing. Even under Section 105 of the Transfer of Property Act. where the title of defendant-1 as owner terminated his status as tenant commences under Section 105 of the Transfer of Property Act. Leases either for a fixed term or in perpetuity are not prohibited by law or unlawful. There is also no subsequent legislation invalidating agreements of leases of this nature. There is no question of any clog in the matter of asserting her rights under the Rent Control Act.
8. The Trial Court framed the following issues for consideration :-
"1) Whether plaintiff proves that she is ever ready and willing to perform her part of the contract as per the terms of the suit agreement?
2) Whether plaintiff proves that some terms of the agreement are void as contended in paras-5(a)(b)(c) and (d)?
3) Whether the suit agreement is hit by Section 23 of the Contract Act?
4) Whether suit agreement is in violation of the provisions of Section 21 of the Mysore Rent Control Act?
On issues-2 to 4, the trial Court gave a finding in the negative and by its Judgment dated 11-11-1975 decreed the suit enforcing all the parts of the agreement. While directing the plaintiff to deposit the entire consideration amount of Rs. 11,000/- it directed the first defendant to execute the sale deed as stipulated and also to deliver symbolical possession of the property to the plaintiff, Within one month after the decree if sale Deed was not executed assistance of the Court may be invoked by the plaintiff. As far the other part the trial Court directed that simultaneously (underlined by me) on the same day of execution of sale deed and thereafter defendant-1 shall execute valid lease deed as per terms of the agreement at the cost of defendant-1 by plaintiff taking up her Rs. 3,000/- out of the amount deposited by her and adjust the same towards future rents to be paid at the rate of Rs. 60/- per month. As far execution of the lease deed the same direction as in the case of the Sale Deed was given.
8. When these findings were challenged by the appellant before the first appellate Court the first respondent preferred cross-objections challenging that part of the decree which went against him. This clause with regard to executing a lease deed simultaneously is in substance a counter claim and therefore the Courts could not have enforced it without giving an opportunity to the appellant to say against it. It was argued for the respondent therein that the entire suit ought to have been dismissed as the plaintiff had never shown her readiness or willingness to perform :he contract. The averment in the plaint clearly indicate that she was never willing to perform her part of the agreement. She did not even step into the box to give evidence and to show her willingness to act according to the terms of notice. Ex.P.53 sent by the plaintiff clearly manifests his intention to perform his part of the contract. When this was clearly pleaded by the respondent, appellant even went to the extent of urging remand of the case so that all the portions of the decree could be considered properly and decision rendered. It addressed itself to the following points :-
"1) Whether matter deserves to be remanded to the trial Court for fresh disposal giving an opportunity to the appellant plaintiff to put her say or written statement to the alleged counter claim of the defendant?
2) Whether plaintiff-appellant is entitled to a decree for specific performance as prayed for in his plaint?
3) Whether direction given by the lower Court in its decree to execute a lease simultaneously with the sale deed is proper?"
9. It negatived the contentions that there was a counter claim by the respondent while urging to enforce the entire agreement. Secondly, the plaintiff had not any reason to say that there is an ambiguity with regard to the amount fixed towards sale price. Her obligation was to pay the entire consideration of Rs. 11,000/-. All the parts of the agreement are so inextricably mixed up with one another that it is difficult to separate one part from the other. What is required to be urged in the case of this nature, is the plaintiff being ready and willing to perform her part of the contract throughout, but it is lacking. The fact that she did not even step into the witness box is a further indication that she did not disclose by evidence why she was not willing to perform all the parts of the contract. It even pointed out that the learned trial Judge was right in observing that the whole of the agreement is valid. Ultimately, it dismissed the entire suit accepting the cross-objections of the respondents.
10. In this second appeal, the appellant feels aggrieved that her contentions were not properly considered and appreciated. All the grounds on which she averred that the suit agreement is invalid were not traversed by the appellate Court. She still insists that she is entitled to specific performance of that part of the claim which is legal and enforceable under law.
11. During admission, the following substantial question of law has been formulated:
"Whether the appellate Court was justified in its view that the plaintiff suffered from a personal bar to relief under Section 16(c) of the Specific Relief Act?"
12. It is material to note that the trial Court found that the plaintiff was not ready to perform her part of the contract though the terms of the agreement are not void. Even by holding that the agreement is not hit by Section 23 of the Contract Act, it decreed the suit in favour of the plaintiff. At para-33 of the Judgment the relevant observation of the trial Court in this behalf is thus:-
"The agreement consists of two parts, one relating to execution of sale deed and other part relating to execution of lease deed Plaintiff has sought for enforcement of the agreement in respect of sale only. To this day she has not stated that she is ready and willing to perform her part of the contract relating to lease. It is also not possible to think in that way i.e., she is ready and willing to perform the entire contract as she has challenged the part relating to lease of the property as null and void."
Having held that the agreement is legal and valid, it further found that she acted in a bona fide belief that some of the terms cannot be complied with in view of the statutory restrictions and then made a material observation in para-34 as follows:-
"I have stated that but for agreement relating to lease defendant-1 would not have agreed to sell the property situated in a busy locality for the same consideration twenty years after he purchased the property. It is necessary to note that there was no agreement to reconvey the property ........It is also necessary to note that defendant-1 took the risk by purchasing the tenanted premises..........If we consider all these facts, it is but natural that defendant-1 has acted bona fide throughout."
This is how the trial Court gave a decree to the plaintiff even though it came to a definite finding that there was lack of willingness on her part to affirm the entire agreement. Though the decree was in her favour as far as specific performance is concerned she was aggrieved by the direction given by the trial Court to enforce all the terms of the agreement and particularly that of the liability of the plaintiff to execute the lease deed in favour of defendant-1. Allowing the cross-objections, the first appellate Court in view of similar findings given by it, it non-suited the plaintiff.
13. During arguments on behalf of the appellant, Sri. K. Channabasappa, mainly urged three points:-
a) The two parts of the agreement with regard to execution of the sale deed and the execution of the lease deed are not an integral part of one agreement being not severable;
b) The second part of the agreement is unenforceable and therefore opposed to law and public policy in view of the bar under Sections 23 and 28 of the Contract Act;
c) The second part on which the plaintiff expressed her unwillingness to perform is not the essential term of the contract.
14. Even though she stated initially in her notice followed by averments in the plaint that she was willing to pay Rs. 8,000/- towards consideration, later agreed to deposit Rs. 3,000/- in Court if so directed. Therefore, her readiness and willingness to perform her part of the Contract is patently clear.
15. In elaborating the first point it was urged that until and unless a sale deed came to be executed in favour of the plaintiff the question of she executing a lease deed in favour of the first defendant did notarise. Therefore this is not an integral part of the agreement. A close reading of Ex.P-1 the agreement leaves no room for any speculation in this behalf. The first appellate Court rightly observed that when the first defendant purchased the property admittedly it was in the occupation of a tenant and even though the present Karnataka Rent Control Act, was not on the statute book as it was enacted in the year 1961, it was a task for the first defendant to get the tenant evicted before he could himself make use of the property. Unless he stood to gain or atleast his interest was protected he could not have come forward to sell the property for almost the same price and a little more of Rs. 3,000/-giving at the same time an option to the plaintif-vendor not to pay that money immediately but to adjust the same in the monthly rental both of them had stipulated for. Therefore the said transaction was for a total price of Rs. 11,000/- only the mode of payment of Rs. 3,000/- was specified for the benefit of the plaintiff and at the same time in recognition of his desire or necessity to continue to do business in the same premises. As the evidence shows day by day this locality grew in importance became a central business place and therefore when defendant-1 out of deference to her deceased husband agreed to sell back the property to the plaintiff alone, naturally he had to safeguard his business interest as well. If only the plaintiff had not agreed to this part of the agreement perhaps defendant-1 could not have agreed for the sale of this property. I have no hesitation in my mind that the entire agreement is one and all the terms form an integral part.
16. Arguments advanced by the appellant's Counsel is that Section 54 of the Transfer of Property Act, defines 'sale' and it emphasises only price paid or price promised to pay as consideration for sale. Therefore nothing more need be considered as consideration towards the agreement of sale. Section 2 relating to interpretation clause in the Contract Act defines the term "consideration." Material among them are as follows:-
"2(d). When at the desire of the promisor, the promisee or any other person has done or abstained from doing, or does or abstains from doing, or promises to do or to abstain from doing, something, such act or abstinence or promise is called a consideration for the promise.
2(e). Every promise and every set of promises, forming the consideration for each other, is an agreement. 2(f) promises which form the consideration or part of the consideration for each other are called reciprocal promises.
2(g). An agreement not enforceable by law is said to be void;
2(h). An agreement enforceable by law is a contract."
17. Though Section 54 defining "sale" speaks only of price as a consideration, when it is an agreement of sale embodying certain other terms to be fulfilled by one party or the other consideration for the performance of an agreement goes beyond simple price under Section 54 of the Transfer of Property Act. Otherwise the entire concept of consideration which is the foundation of an agreement has to be re-defined. Section 10 defines what are contracts. All agreements are contracts if they are made by the free consent of parties competent to contract for the lawful consideration and with a lawful object and are not hereby expressly declared to be void. Section 25 clearly states that an agreement without consideration is void unless as provided under Sub-section 1, it is expressed in writing and registered under the law for the time being in force for the registration of documents and is made on account of natural love and affection between the parties and standing in a near relation to each other. Therefore, any contract which is not excepted under the provisions of Section 21 if is made without consideration is void. As already pointed out consideration need not be solely money consideration though in an agreement of sale price is the main consideration. But if there are other considerations also say by way of reciprocal promises then a party choosing to enforce the contract cannot dissect the same into two parts, namely, one which is favourable to him and the other which is unfavourable or inconvenient to him. As rightly observed by the first appellate Court the entire agreement is an integral part of one contract not capable of being severed simply because the plaintiff wants it to be so done. In the light of this finding it now remains to be seen if the plaintiff was ready and willing to perform her part of the contract in respect of the whole agreement. It is futile to urge that the second part with regard to execution of the lease deed which perhaps is inconvenient to her in the present day circumstances is not an essential term of the contract.
18. The first step taken by her towards calling upon the first defendant to abide by the agreement was to issue notice to the first defendant. It is as follows:-
"Under instructions from my client Smt. Indirabai w/o. Nagesh Rodaye, of Belgaum, you are hereby called upon to execute a deed of reconveyance of City Survey No. 1766 of Belgaum as per agreement dated 22-7-1960 executed by you and my client. The last date of payment of Rs. 11,000/- to you is 21-7-1972. My client is ready and willing to pay you this amount. With regard to the condition in the agreement, that you should live in the property for such period as you like and the further condition that the rent should never exceed Rs. 60/- per month are void and inoperative in law. The principal amount is Rs. 8,000/- by way of consideration of the sale deed dated 15-7-1955 and the sum of Rs. 3,000/- is the amount of repairs spent by you. My client hereby expresses her willingness and readiness to pay you on intimation in writing from you before 19-7-1972 failing which my client will deposit Rs. 11,000/- in Court and file a suit against you in time and at your risk and consequences."
19. It is pertinent to note that the plaintiff has now sought to place her own interpretation with regard to the agreement to pay Rs. 11,000/- as price for the property. It clearly indicates that she never considered Rs. 3,000/- as a part of the consideration amount as could be made out from the second part of this notice. She now interprets that Rs. 3,000/- is the amount spent by the defendant towards repairs. She made it clear that the further condition that the property should be leased to him on a monthly rent of Rs. 60/- is void and inoperative in law. Similar was the stipulation regarding the tenure. The reply sent by the defendant-1 on 19-7-1972 is not to be found in the records. But to this reply the plaintiff's Counsel as per Exhibit P-3 made her position still more clear by stating as follows:-
"Ref:- Your reply dated 19-7-72 under instructions of your client Mr. Parasharam Kallappa Hande.
With reference to your reply quoted above and as required by Clause 2 of the agreement dated 22-7-1960 it is necessary that my client should first pay Rs. 8,000/- to your client within the period of two years commencing from 22-7-1970 to 21-7-1972. Accordingly, l am remitting herewith a sum of Rs. 8,500/- by cheque No.H.899225 dated 20-7-1972 on Belgaum Bank Limited in your name which may please be passed on to your client on account of consideration of the sale deed amounting to Rs. 8,000/- and the balance on account of cost of stamp duty and registration fee. I have enclosed herewith the draft sale deed.
Since the order of performance of contract is fixed my client is performing her part of the contract first by remitting the consideration of sale deed and cost of stamp and registration fee.
Please acknowledge the receipt of this letter, cheque and draft sale deed."
20. It is pertinent to note that she never whispers in this reply about her liability to pay remaining Rs. 3,000/- in any manner but has turned round and said that she was liable to pay only Rs. 8,000/- as consideration for the sale deed and Rs. 500/- was towards balance on account of cost of stamp duty and registration. The same averment has been made in the plaint as well in para-7(2), while accepting at the same time that the property was agreed to be sold for Rs. 11,000/-. A very material averment could be found in para-6 of the plaint. It says:-
"There is no reference in the suit agreement, why plaintiff should pay Rs. 3,000/- to defendant No. 1. The suit agreement is void for want of consideration but without prejudice, plaintiff is ready and willing to deposit this amount in Court at any time, according to the orders of the Court."
Therefore, while filing the suit she settled down to her own interpretation that the lawful consideration is only Rs. 8,000/- but remaining Rs. 3,000/- is illegal part of it. Thus, it is now established by these averments time and again that she was willing to pay only Rs. 8,000/- as consideration by way of price towards sale of the property and Rs. 3,000/- which according to her is the amount which could not be legally claimed would be deposited by her only if the Court ordered. As for execution of the lease deed she has no hesitation in her mind that she did not want to perform it. It may be mentioned here that she did not choose to enter the box to tell the Court whether she was ready and willing to perform her part of the contract and during arguments it was only urged that her evidence even if tendered could not go any further.
21. The decision of the Rajasthan High Court in the case of KIRPAL SINGH v. MST. KARTARAO & ORS, was referred to by the appellant's Counsel in which it is held by the Division Bench that in a suit for specific performance of the contract it is the duty of the plaintiff to aver and prove that he was and is ready and willing to perform the essential terms of the Contract. Before granting specific performance the Court has to see whether the plaintiff has complied with the condition precedent laid down in Clause (c) of Section 16 which is based on the maxim "he who seeks equity, must do equity." In judging the same on conduct of parties and essential terms of the contract are to be taken into consideration. As for the scope of interpretation in second appeal it was also held that it is a finding of fact which could not be interfered with unless warranted by glaring circumstances. No reappreciation of evidence in such an appeal is called for.
22. This Court in the case of GURUPADAYYA SHIVAYYA HIREMATH v. SHIVAPPA BASAPPA GURAMMANAVAR, pointed out that Section 16(c) makes it obligatory for the plaintiff to aver in the plaint and also to 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. The plaint need not be followed by the actual deposit when the contract involves such payment, but there must be proper averments in the plaint regarding the plaintiff's willingness to perform his part of the contract followed by the evidence to prove it. In other words his conduct should not be any thing other than his readiness to perform his part of the contract. If there is no such proper pleas in that regard the suit for specific performance is not maintainable. In that case before the learned Single Judge of this Court there was an agreement to sell two properties by the vendor, one belonging to him and another to one of his relatives in the suit for specific performance. The purchaser claimed a decree for specific performance only in respect of property belonging to the vendor and though a period of one year was prescribed in the agreement for performing the contract, the vendee deposited balance amount in Court after nearly about 4 1/2 years and it was held it could not be said that the vendee was willing or ready to perform his part of the contract and consequently the suit for specific performance was rejected. The Supreme Court in the case of Ouseph Verghese v. Joseph Aley on which reliance was placed by the learned Judge clearly emphasised that the plaintiff did not plead either in the plaint or at any subsequent stage that he was ready and willing to perform the agreement pleaded in the written statement of the defendant. A suit for specific performance has to conform to the requirements prescribed in Forms 47 and 48 of the 1st Schedule in the Civil Procedure Code. In a suit for specific performance it is incumbent on the plaintiff not only to set out agreement on the basis of which he sues in all its details, he must go further and plead that he has applied to the defendant specifically to perform the agreement pleaded by him but the defendant has not done so. He must further plead that he has been and is still ready and willing to specifically perform his part of the contract. These observations were based on Forms 47 and 48 given in Appendix-A to the 1st Schedule in the C.P.C. which also require the plaintiff to state in the plaint that he requested the defendant specifically to perform the contract on his part but the defendant has not done so. Form-48 also requires the plaintiff to state in the plaint that on such and such a date the plaintiff tendered ....rupees to the defendant and demanded a transfer of the suit property by a sufficient instrument. That form also requires the plaintiff to state that the plaintiff demanded such transfer or the defendant refused to transfer the same to the plaintiff. This decision clearly bears anology to the facts of this case, inasmuch as the plaintiff has sought to dissect the agreement and totally ignore the other part requiring him to lease the property to defendant-1.
23. A similar view was taken in the case of MAHMOOD KHAN and ANR. v. AYUB KHAN and ORS, in which the Division Bench of the High Court made a reference to Form 47, referred to above and held that in view of the mandate of Section 16(c) of the Specific Relief Act, it has become obligatory for the plaintiff not only to aver in the plaint but also to prove by evidence that the plaintiff has always been ready and willing to perform his part of the contract. The first requirement is that he must aver in the plaint. Indeed the question of evidence of proving a particular fact would come only if there is an allegation in the plaint to that effect. The compliance of requirement of Section 16(c) of the Specific Relief Act is mandatory and in the absence of necessary averment in the plaint and in the absence of the proof of the same that the plaintiff had been ready and willing to perform his part of the contract the suit cannot succeed. Though the defendants had not raised any plea to that effect in the written statement nor was there any issue the mandate of the statute require that the plaintiff must aver in the plaint and must give proof of the fact that he was and is ready to perform his part of the contract. The learned Judges of the Division Bench even went a step ahead and observed that merely giving proof of the fact will not be a substitute for the necessary averment in the plaint. The amendment in the plaint in such case cannot be allowed for two reasons; firstly, because a valuable right has accrued to the defendant and, secondly, because the amendment seeks to bring out a cause of action in the plaint which was conspicuous by its absence in the plaint as originally filed. In sum it is well established that there is no ambiguity that when a party to a contract approaches the Court for specific performance of that agreement it is obligatory on him to show his willingness and readiness to perform his part of the contract right from the inception, namely, may be in the prior notice if such a notice is given and thereafter through averments in the plaint, conduct consistent with it and then proof by giving evidence. As I have pointed out repeatedly the plaintiff has shown her total unwillingness to perform the other part maintaining that it is not according to law and therefore is unenforceable.
24. In such a situation when it is established that the plaintiff has failed to prove that she is ready and willing to perform her part of the contract, the next material question is whether that part of the agreement which she wants to ignore is illegal and unenforceable under the provisions of Sections 23 and 24 of the Contract Act. For this purpose the rights and liabilities of a lessor and a lessee under the Transfer of Property Act as well as the Karnataka Rent Control Act, have been relied upon. At the outset infringement of Section 4 of the Act is out of place though urged in the plaint as a ground for repudiation of this part of, the agreement for the simple reason that unless a building becomes vacant intimation of such vacancy by the landlord does not arise and so also the Controller under the Act does not get jurisdiction to exercise his power of leasing out to any public authority or any other person under Section 5 of the Act.
25. Sri Channabasappa did not urge this point as admittedly even if the lease agreement comes into existence between the plaintiff and defendant-1, it would not be in respect of a premises that has ''fallen vacant" Therefore, a lease created by which only the character of defendant would change from one of owner to one of tenant cannot be said to be in contravention of Sections 4 an 5 of the Rent Control Act. When this is so, we must go to other provisions of the Act relating to leases.
26. The appellants Counsel has taken exception to the two principal clauses in the second part of the agreement, namely, that it seeks to create almost a permanent lease and takes away the right of the landlord to exercise his right of eviction invoking the provisions of the Rent Control Act. In this behalf the manner of creating leases, the rights and obligations of a lessor and the provisions of the Rent Control Act, according to Sri. K.I. Bhatta appearing for the respondents, are only intended to protect the tenants from whimsical eviction of tenants by landlords The respective contentions now require examination.
27. As already stated the main plank of the appellant's Counsel's argument is that the second part of the contract is unlawful and against public policy and therefore unenforceable, whereas, the first part which is severable is certainly enforceable and therefore the appellant be given a decree as far as the first part regarding the agreement to sell is concerned. Reliance has been placed on Sections 23, 24 and 28 of the Indian Contract Act. Section 23 of the Contract Act, reads as follows:-
''23. The consideration or object of an agreement is lawful, unless --
It is forbidden by law; or is of such a nature that, if permitted, it would defeat the provisions of any law, or is fraudulent; or involves or implies injury to the person or property of another; or the Court regards it as immoral, or opposed to public policy.
In each of these cases, the consideration or object of an agreement is said to be unlawful. Every agreement of which the object or consideration is unlawful is void.
Section 24 of the Contract Act reads thus:-
"24. 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."
Section 28 of the Contract Act reads thus;-
"28. Every agreement, by which any party thereto is restricted absolutely from enforcing his rights under or in respect of any contract, by the usual legal proceedings in the ordinary tribunals, or which limits the time within which he may thus enforce his rights, is void to that extent."
Exception 1 - This section shall not render illegal a contract by which two or more persons agree that any dispute which may arise between them in respect of any subject or class of subjects shall be referred to arbitration, and that only the amount awarded in such arbitration shall be recoverable in respect of the dispute so referred.
When such a contract has been made, a suit may be brought for its specific performance, and if a suit, other than for such specific performance, or for the recovery of the amount so awarded, is brought by one party to such contract against any other such party in respect of any subject which they have to agreed to refer, the existence of such contract shall be a bar to the suit.
Exception 2 - Nor shall this section render illegal any contract in writing by which two or more persons agree to refer to arbitration any question between them which has already arisen, or affect any provision of any law in force the time being as to references to arbitration."
28. In relying on these provisions it has been argued that "sale" has been defined under Section 54 of the Transfer of Property Act, and as far as a "sale" is concerned consideration is only price. Therefore the latter part of this agreement which also stipulates execution of a lease deed by the appellant cannot be considered as consideration within the meaning attributed to it under Section 54 of the Transfer of Property Act. Section 54 of the transfer of Property Act reads :-
"54. "Sale" is a transfer of ownership in exchange fora price paid or promised or part-paid and part-promised. Such a transfer, in the case of tangible immoveable property of the value of one hundred rupees and upwards, or in the case of a reversion or other intangible thing, can be made only by a registered instrument. In the case of tangible immoveable property, of a value less than one hundred rupees, such transfer may be made either by a registered instrument or by delivery of the property.
Delivery of tangible immoveable property takes place when the seller places the buyer, or such person as he directs; in possession of the property.
A contract for the sale of immoveable 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."
29. The price alone should be considered in respect of an agreement of sale and other part therefore does not form part of the consideration. But the second part of the definition of sale as could be seen from above makes it clear that a contract for sale of such property shall take place on terms settled between the parties. "Consideration" under Section 2(d) of the Contract Act, is interpreted as follows:-
"2(d). When, at the desire of the promisor the promise or any other person had done or abstained from doing, or does or abstains from doing, or promises to do or to abstain from doing, something, such act or abstinence or promise is called a consideration for the promise."
Under Sub-section (e) every promise and every set of promises forming the consideration for each other is an agreement. Under Clause (f) promises which form the consideration or part of the consideration for each other are called reciprocal promises. Now an agreement without consideration is void. In my view simply because the definition of sale is restricted to payment of price the argument that the other consideration in an agreement cannot be considered as part of the agreement is not acceptable. If a party to a contract has specifically stipulated for a consideration in addition to the price to be paid it is idle to contend that that part of the consideration which is not related to price becomes unenforceable. Respondent-1 entered into an agreement to sell this property to the appellant in consideration of her promise to execute the lease deed in his favour. Though this can be a reciprocal promise cannot be considered as one that could be severed from the first part of the agreement. Having been in actual possession of the property after purchasing it from the husband of the appellant the first respondent could not have agreed to sell it back unless his possession as a tenant was guaranteed by a lease deed that had to come into existence simultaneously. Hence this part of the agreement does fall within the definition of "consideration" under Section 2(d) of the Contract Act. The argument that it does not form a part of the consideration of the agreement is unacceptable.
30. Whether this part of the agreement is hit by Section 23 of the Contract Act is the next point. Section 105 relating to leases in the Transfer of Property Act, defines 'lease' as follows:-
"105. A lease of immoveable property is a transfer of a right to enjoy such property, made for a certain time, express or implied, or in perpetuity, in consideration of a price paid or promised, or of money, a share of crops, service or any other thing of value, to be rendered periodically or on specified occasions to the transferor by the transferee, who accepts the transfer on such terms.
The transferor is called the lessor, the transferee is called the lessee, the price is called the premium, and the money, share, service or other thing to be so rendered is called the rent."
Thus, a perpetual lease could be created and there is nothing illegal about it. Even the Karnataka Rent Control Act, 1961 does not prohibit the creation of permanent leases expressly though Section 21 of the K.R.C. Act, contains a non-obstante clause, whether a particular agreement could be enforced or not is a different aspect. But an agreement to be hit by Section 23 must be against public policy or unlawful or should be forbidden by law.
31. Learned Counsel for the appellant has argued that because this agreement stipulates that the tenant should continue in the premises "as long as he likes" it takes away the right of the landlord to institute eviction proceedings even if the requirements under Section 21 of the K.R.C. Act are fulfilled. A reading of Section 23 of the Contract Act and the other provisions of the K.R.C. Act, does make it abundantly clear that permanent leases by themselves are not forbidden under any of the provisions of the K.R.C. Act, nor are unlawful.
32. Under Section 10 of the Contract Act, an agreement is a contract and is enforceable only if it is made for a lawful consideration and with the lawful object. Section 23 is not concerned with motive but is confined to the object of transaction and not to the reasons or motive which promoted it. Some times although there is nothing unlawful in performing a promise a positive rule of law founded on reasons of general expediency will not serve any legal obligation to arise from a promise of that kind. In the circumstances are cases of wagers and of agreements in restraint of trade outside the limited sanction given them. An actor undertaking is forbidden by law whenever it violates a prohibitory enactment of the legislature or a principle of un-written law. If a contract is expressly or by necessary implication forbidden by statute or if it is ex facie illegal or both parties know that though ex facie legal it could only be performed by illegality or is intended to be performed illegally, the law will not help the plaintiff in any way, that is, by direct or indirect enforcement of rights under the Contract Act. Judged from this angle even ex facie the contract does not appear to be illegal as the parties are competent to agree that a tenancy should be a perpetual tenancy. Whether by virtue of non-obstante clause in Section 21 of the K.R.C. Act, the landlord would be entitled to initiate eviction proceedings is besides the point. In the case of BHIKANBHAI v. HIRLAL, ILR(24) Bombay 622 before the High Court of Bombay, a question arose whether an agreement by lessee of tolls from Government under the Bombay Tolls Act, 1875, to sub-let the tolls was valid and binding between the lessee and sub-lessee.
Section 10 of the Act, empowered the Government to lease the levy of tolls on such terms and conditions as the Government deemed desirable. One of the conditions of the lease was that the lessee should not sublet the tolls without the permission of the Collector previously obtained and another condition empowered the Collector to impose a fine of Rs.200/- for a breach of the condition. The lessee sublet the tolls to the defendant without the permission of the Collector, and then sued him to recover the amount which he had promised to pay for the sublease. It was contended on behalf of the defendant that the sublease was unlawful, as it was made without the permission of the Collector, and that the lessee was not therefore entitled to recover the amount claimed by him.
33. The learned Judge Parsons observed:-
"In our opinion this case falls within the latter class, because the statute itself does not forbid or attach a penalty to the transaction of subletting, but merely give power to impose a condition under which it can be forbidden should the Collector see fit to do so for what can be only purely administration purposes. The Act imposing tolls is an Act passed for the benefit of the revenue and not an Act for the protection of public morals."
34. Rajade J, also observed as follows:-
"As a general rule, the law does not forbid things in express terms, but imposes penalties for doing them, and the imposition of such penalties implies prohibition, and an agreement to do a thing so prohibited is unlawful under Section 23 of the Contract Act. As no penalties are prescribed under the (Tolls) Act, the agreement does not prime facie fall under the 1st clause of Section 23."
In the case of MOHAMMAD SYED BABA v. UNIVERSAL TIMBER TRADERS, AIR 1976 J. & K 9 there was a prohibition of a forest lease without government sanction of the lease. But it was held that the transfer was not hit by Section 23 of the Contract Act and therefore not void. If there is an express prohibition to do a certain act and if that act is done in contravention of such prohibition then certainly it is unenforceable and is a case forbidden by law
35. A question arose before the Division Bench of this Court in the case of NEMINATH APPAYYA HANAMANNAVAR v. JAMBURAO SATAPPA KOCHERI, 1965(1) Mys.LJ. 442 if an agreement to sell land which if enforced would leave the purchaser with lands in excess of ceiling area and therefore the contract is unenforceable as it by Section 23 of the Act, in view of prohibition contained under Section 34 of the Bombay Tenancy and Agricultural Lands Act, and also Sections 35 and 73(m) and 85 of that Act. Somanath Iyer J, (as his Lordship then was), speaking for the Bench observed that Section 23 of the Contract Act, and the other seven Sections following it incorporate among others three well settled principles. The first is that an agreement or contract whose purpose is the commission of an illegal act is void; second is that an agreement or contract expressly or impliedly prohibited by law is similarly void; and the third is that an agreement or contract whose performance is not possible without disobedience to law is again void. Reference was made to the observations of Delvin J, in the case of ST. JOHN SHIPPING CORPORATION v. JOSEPH RANK LTD., L.R. (1957) 1 Q.B. 267 According to Delvin J :-
"There are two general principles. The first is that a contract which is entered into with the object of committing an illegal act is unenforceable. The application of this principle depends upon proof of the intent, at the time, the contract was made, to break the law; if the intent is mutual the contract is not enforceable a tall, and, if unilateral, it is unenforceable at the suit of the party who is proved to have it.....the second principle is that the Court will not enforce a contract which is expressly or impliedly prohibited by statute. If the contract is of this class it does not matter what the intent of the parties is; if the statute prohibits the contract, it is unenforceable whether the parties meant to break the law or not. A significant distinction between the two classes is this. In the former class you have only to look and see what acts the statute prohibits, it does not matter whether or not it prohibits a contract; if a contract is deliberately made to do a prohibited act, that contract will be unenforceable. In the latter class, you have to consider not what acts the statute prohibits, but what contract it prohibits; but you are not concerned at all with the intent of the parties; if the parties enter into a prohibited contract, that contract is unenforceable."
Referring to the agreement before his Lordship, it was observed that we should understand the words "If permitted, it would defeat the provisions of any law" occurring in third paragraph of Section 23 of the Contract Act, as referring to parties of an agreement which necessarily entails the transgression of the provisions of any law. It was not possible to accede to the view suggested by the learned Counsel. In that case, those words mean that even a possibility of such transgression is sufficient to denounce the agreement as void. What makes an agreement which is otherwise legal void, is that its performance is impossible except by disobedience of law. A bare possibility of such transgression if there be also a possibility of performance without transgression does not invalidate the agreement. It is a familiar principle that the presumption of law is in favour of the legality of a contract and that if it reasonably admits of two meanings or two modes of performance one legal and the other not, the interpretation which the Court should prefer is one which supports it and makes it operate the burden being on the person who impeaches its validity to establish illegality. So observing, it was held that even though the enforcement of the contract would leave the purchaser with land in excess of the ceiling limit, there are other provisions which would take care of it. The contract was thus held not to be unenforceable.
36. In the case of DHIRAJLAL VITTALJI & ANR. v. MRS. IVY DICKSON & ORS., 1975(1) KLJ 257 a lease in favour of the existing tenant on a monthly rental of Rs. 50/- provided that the tenant should effect repairs and make improvements subject to approval of the lessor, that the expenditure should not exceed Rs. 15,000/- and in lieu of this investment the lessor granted a lease for 20 years renewable for a further period of 20 years on the same terms subject to payment of Rs.50 as rental per month. It further provided that if before the expiry of the period stipulated the lessor terminates the lease, the lessee would be entitled to refund of the amount on the basis of book value. Malimath J, (as his Lordship then was) held:-
"As the agreement contained a stipulation for payment of Rs. 15,000/- by the lessee in addition to the agreed rent, the stipulation was void in view of Section 18(2) & (3). The effect of the stipulation being void was that the lessor has to refund that amount to the lessee or adjust it at the option of the lessee.
As the aforesaid consideration was forbidden by Section 18(2) of the Rent Control Act the consideration was unlawful under Section 23 Contract Act."
In that case, the Court was dealing with a clause which contained an express prohibition under Section 18(2) & (3) of the Act, the like of which is totally absent in the instant case.
37. In the case of N. VENKATARAMANA BHAT v. A. PRABODH NAIK & ORS., 1975(1) KLJ 262 the suit premises consisting of three residential houses belonging to one 'P' was leased to defendant under registered lease deed DI by P's mother and Power of Attorney Holder R. One of the conditions of the lease was that the defendant should put up a building worth not less than Rs. 20,000/- within two years and give vacant possession of the leased property after the expiry of the lease without claiming any compensation for the improvements made by him. The defendant erected a new building and used it for running a boarding hotel and restaurant. Before the expiry of the lease, by another lease deed D2 the defendant was allowed to continue for another period of 9 years expiring on 11-6-1970. On 23-4-1970 R executed a registered lease deed Ex.P-1 in favour of the plaintiff for 10 years from 12-6-70 on a monthly rent of Rs. 1,800/-. Under Ex.P-1 she also transferred her rights to evict the defendant and his sub-tenants. R terminated the tenancy of the defendant by registered notice dated 1-6-1970. In a suit by plaintiff for eviction of the defendant and recovery of mesne profits and damages, it was held by this Court that the Power of Attorney Exhibit P-2 authorised the Power of Attorney Holder to grant leases both in possession as well as in reversion. The defendant himself having obtained such a lease from R was estopped from questioning the authority of R to grant a lease in reversion in favour of the plaintiff under Ex.P-1. Sections 105 & 5 of the TP Act, do not recognise the distinction between lease in possession and lease in reversion. The lease deed was not void under Section 23 of the Contract Act, as offending Section 4 and other provisions of the Mysore Rent Control Act, 1961. The fair rent had not been fixed for the building and it was open to the lessee to agree to pay a higher rent and such an agreement would not be contrary to the provisions of the Act. The right under Section 109 of the T.P. Act, is not intended to be curtailed by the Rent Control Act, or any of these provisions. Plaintiff in that case exercised his right to sue for eviction under Section 109 of the T.P. Act. Merely because the contract between the parties would be subject to recognition by the Controller it could not be said that the contract was illegal or void. It was open to the Collector to recognise the rights of the parties under Ex.P-1 and allot the suit premises to the plaintiff after the premises became vacant and report made thereafter to the Controller.
38. Relying on a decision of GOVINDASWAMY R. v. PANNALAL C.S., 1978(1) KLJ 506 it was argued that the Karnataka Rent Control Act is a self-contained enactment governing the creation of a lease in respect of a building to which that Act applies, the rate of rent to be paid in respect of it and circumstances under which alone the landlord is entitled to seek eviction of the tenant from it. Therefore, the appellant's Counsel urged that such a term which is beyond the limitations placed under the K.R.C. Act is void.
39. The preamble to the K.R.C. Act, states that it is to provide for the control of rents and evictions, for the leasing of buildings, to control rates of hotels and lodging houses and for certain other matters in the State of Karnataka. That this is a self contained enactment that it is intended for the protection of tenants is made amply clear on more than one occasion. In the case of MISRILAL PARASMALLA v. H.P. SADASIVAYYA, 1963(1) Mys.LJ. 100. his Lordship Justice Hegde observed that the Mysore Rent Control Act, has put some restrictions on the rights of landlords and that naturally they have to be construed strictly. If any tenant pleads that he is protected in any of the provisions of the Act, it is for him to establish his claim.
40. His Lordship Justice Krishna Iyer of the Supreme Court, in the case of SANT RAM v. RAJINDER LAL & ORS, explained the approach to the piece of social legislation like Rent Control Act thus:
"Statutory construction so long as law is at the service of life, cannot be divorced from the social setting. That is why, welfare legislation like the one with which we are now concerned, must be interpreted in a Third world perspective. We are not on the Fifth Avenue or West End of London. We are in a hilly region of an Indian Town with indigents struggling to live and huddling for want of accommodation. The law itself is intended to protect tenants from unreasonable eviction and is, therefore, tilted a little in favour of that class of beneficiaries. When interpreting the text of such provisions and this holds good in reading the meaning of documents regulating the relations between the weaker and the stronger contracting parties - we must remember what in an earlier decision of this Court, has been observed in Motiram v. State of M.P. ."
41. It should thus be remembered that primarily the object of the rent legislation is to protect the interests of the tenants and restrictions have been placed on their eviction unless the grounds of eviction fall under Section 21 of the K.R.C. Act. When Section 4 of the Act dealing with lease of buildings admittedly is not attracted in the instant case for the reason that the building did not fall vacant and only the character has changed the provisions of Chapter-3 are not attracted.
42. What exactly would be the character of a person in occupation of a premises came for consideration in the case of SHAFIC AHMAD v. SMT. SAYEEDAN, the learned Judge held:-
"Where an agreement of sale of property in dispute was executed by the owner of the property in favour of the tenant thereof the interest of the lessor and lessee in the property became vested at the same time in the tenant in his same capacity as an individual, and a mere execution of an agreement to reconvey title to the property acquired under a deed of sale could not be construed in all such cases as exhibiting the retention of the interest as lessee intact. It was more so when in the instant case there was nothing to infer expressly or by necessary implication the intention of the parties that the pre-existing interest of the tenant be allowed to subsist despite the purchase taken by him merely on the footing that he entered into the agreement to reconvey within a period of three years from the date of the purchase."
By analogy it can be said that in the instant case it is only the character of the occupant that has changed and there was no creation of a lease in violation of Section 4 of the Act, as admittedly the building had not fallen vacant.
43. In my view Section 23 of the Contract Act, is not attracted in the instant case inasmuch as there is no express prohibition against creating permanent leases under the Rent Control Act and secondly, even though there is a stipulation that the tenant should continue as such as long he likes, the non-obstante clause in Section 21 certainly is intended to safe guard the rights of the landlords and tenants inter-se notwithstanding anything contrary to such a contract. The first appellate Court rightly found that all the clauses in the agreement are an integral part and it is not possible to sever one from the other.
Stipulation that a lease deed should be executed by the landlord or the appellant after the sale deed is executed by defendant-1 cannot be considered as unlawful. If that is so there is total absence on the part of the appellant to perform that part of the contract which cannot be severed.
44. What should be the readiness and willingness and till point of time has been discussed time and again in many a case. In the case of MALI BEWA & ORS. v. DHUNDA SAMAL & ANR., the High Court held that in a suit for specific performance it is for the plaintiff to establish that he was since the date of the contract continuously ready and willing to perform his part of the contract and in case that fact is controverted by the defendant, to prove it at the trial. If he fails to do so, his claim for specific performance must fail. It is mandatory that not only it should be averred in the plaint, but also should be stated in the Court during trial, otherwise readiness until the end of the trial cannot be indicated at the time of filing the suit. Reliance was placed on the case of GOMATHINAYAGAM PILLAI v. PALANISWAMI NADAR, AIR 1957 SC 868.
45. The appellant's Counsel referred to a decision of the Allahabad High Court, in the case of GANESH PRASAD v. SARASWATI DEVI & ORS., to urge how the words "ready and willing" in Clause (c) of Section 16 of the Specific Relief Act, should be interpreted. The learned Judge observed that all that they mean is that a plaintiff in order to succeed in a suit for specific performance must aver and prove that he has performed or has throughout been prepared to do his part under the contract, that preparedness may not, however be mere verbal show of readiness to do his part. It should be backed by the means to perform his part of the contract when called upon to do so. The plaintiff need not have to, in such a case go about jingling money to demonstrate his capacity to pay the purchase price, all that the plaintiff has to do in such a situation is to be really willing to purchase the property when the time for doing so comes and to have the means to arrange for payment of the consideration payable by him. It has been urged relying on these observations that in the plaint as well as in the notice the appellant has clearly expressed her willingness to perform that part of the contract which is legal according to her and therefore there is compliance with the requirements of Section 16(c) of the Act.
46. Now turning to the facts of the case, the first thing to be noted is that the appellant never entered the box and never proved during trial that she was ready and willing to perform her part of the contract much less all the parts of the contract. Secondly, even in the plaint she imposed her own interpretation regarding consideration money and averred that she has to pay Rs. 8,000/- as a condition precedent to obtain the sale deed. In para-6 of the plaint, she stated "there is no reference in the suit agreement why plaintiff should pay Rs. 3,000/- to defendant-1. The suit agreement is void for want of consideration but without prejudice the plaintiff is ready and willing to deposit this amount in Court at any time according to the orders of the Court." This clearly indicates that all through she maintained that the consideration was only Rs. 8,000/- as price and only looked for the orders of the Court for the payment of remaining Rs. 3,000/-. but the totally forgot that the consideration was Rs. 11,000/- Rs. 3,000/- to be retained with her only to adjust towards the rental at the rate of Rs. 60/- that the first defendant had to pay per month as a lessee after the, sale deed was executed. It is therefore clear that in the plaint itself she showed her unwillingness to pay the entire Rs. 11,000/- as consideration money. In the notice Exhibit P-5 she maintained that Rs. 8,000/- was the consideration money and accordingly remitted it along with Rs. 500/- towards registration fee as calculated by her. It may be said she was not properly advised as to her obligation under contract to pay Rs. 11,000/- towards consideration whatever may be her own impressions. Thus, throughout she maintained that the price agreed was only Rs. 8,000/- and looked to the orders of the Court for the payment of Rs. 3,000/-. This certainly cannot amount to readiness and willingness to perform her part of the contract. If only she had entered the box and gave evidence of explanation as to why she was willing to pay Rs. 8,000/- and waited for the Court's order for the payment of remaining Rs. 3,000/- the Court could have been in a position to know what exactly were the reasons for non performance of this part of the contract.
47. The first appellate Court therefore felt concerned about this lapse on her part by not entering the box. Even in the absence of any evidence the pleadings are enough to indicate that she was not ready and willing to perform her part of the contract. I am in agreement with the finding of the first appellate Court that these stipulations are an integral part of one contract and cannot be separated into lawful and unlawful paras. Section 28 of the Contract Act, does not in any way, come into operation.
48. For the reasons discussed above, I am of the view that there was nothing unlawful or anything forbidden by law for the parties to contract that the first defendant should be a tenant of the suit premises under a lease deed to be executed by the appellant after the sale deed was executed by him and as the appellant showed throughout that she was not ready and willing to perform all the parts of the contract she is not entitled to a decree for specific performance of only a part of the contract. Under such situation the appellant could have been wise to have grabbed the opportunity when a decree was given in her favour by the trial Court. Her refusal to perform this part of the contract by agitating the matter throughout has landed her in the present situation which is only of her own making.
49. I do not find any merit in this appeal, the same is liable to be dismissed and is dismissed.