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1 - 9 of 9 (0.23 seconds)S. Ramalinga Pillai vs G.R. Jagadammal Alias Jagadamba Ammal ... on 23 March, 1950
After quoting the observations from Halsbury's Laws of England reproduced above, the Supreme Court referred to the decisions of the Federal Court in Shankugam Pillai v. Annalkhshmi Ammal AIR 1950 FC 38 and observed :
Caltex (India) Ltd vs Bhagwan Devi Marodia on 26 September, 1968
In Caltex Ltd. v. Bhagwan Devi, the supre Court, referring to the decison of the Privy Council in 43 Ind App 26 = (AIR 1915 PC 83) (cit, sup. has observed :
K. Simrathmull vs S. Nanjalingiah Gowder on 28 February, 1962
These obsevations were uoted with approval by th eSupre Court in Simrathmull v. Nanjalingiah. . In that case the plainitff had borrowed a certain amount fromt he defendant and in lieu thereof executed a deed of conveyance of certain land with a house thereon in faovur of th edefendant. On the ame day the deed of reconveyance was executed by the defendant andby this deed the defendant agrteed to reconvey the house but eh exercise of right of demanding reconveyance by the palintiff was subject to two conditions, namely 91) that the right must be exercised within two years and (2) that the rent payable by the plaintiff should not be in arrears for more than sim months be in arrears for more than six months at any time. the plainitff was found to have broken the second conditon. The defendant refused to reconvey and the plaintiff filed a suit for specific performance praying that the Court should exercise its equitable jurisdiciton to give relief against the forfeiture clause. it was held that the sale deed, the deed of recoconveyance and the rent note were parts of hte same transaciton and that the transction was not one of mortgage by conditional sale. It was further held that if the original vendor. i.e. the plaintiff failed to act punctually according to the terms of the contrct hte right to repurchase would be lsot and oucld not be specifically enforced and refusal to enforce the terms specifically for failure to abide by ht econditions did not amount ot emforcement of a penalty and the Court had no power to afford relief against forfeiture arising as a result of the breach of such a condition.
Pandit Chunchun Jha vs Sheikh Ebadat Ali And Another on 14 April, 1954
As pointed out by the Supreme Court in Chunchum Jha v. Ebadat Ali, under the proviso to Section 58(c) of the Transfer of Property Act, if the sale and agreemnt to repurchase are embodied in separate documents, then the transacitonc annot be a mortgage whether the document are contemporaneously executed or not and that the legislature had made a clearcut classifiction and excluded transaction embodied in more than one document from the category of mortgages. The averments in the palint and the notice clearly show that the plaintiffs were never ready and willing to perform their part of the contract of resale which considsted in their payment of the amount of Rs.9,000/- wih interest within the period stipulate in the document of resale. The statement of the plaintiff No. 1 Mohansingh in the witness box that he tried to see the defendnat baout a fortnight after sendintg the notice to him is a clear afterthought, because the plaint does not make any refernce to this. According to him, one Gulabraoi was ready to advance him Rs. 10,000/- and he had himself taken Rs. 2,000/- with himd and he told the defendnat that he had come with cash ready for payment. Now the defendnat was entitled to receive under the terms of the contract of reslae Rs. 17,100/- as found by the trail Court. Evfen assuming that the plainitff No,1's evidence is accepted, it would only mean that he had onge to the defendnt only with Rs. 12,000/- which the defendant was not bound to acept as he was entiled to receive Rs. 17,100/-. it is not possible for us to accept this statement that Gulabrao had accompanied him with an amount of Rs. 10,000/- because of ht ediscrepancy between the evidenc eof Gulabrao and the evidence of the plaintiff No. 1. According to Gulabrao (P.W. 2), he had agreed to advance plaintiff No. 1 Mohansingh an amount of Rs. 10,000/- provided the plaintiff No. 1 would sell to him the fruits in his garden for a period of three years. Mohansingh himself does not make any reference to such an arrangement except that he states that Gulabrao had agreed to advance him Rupees 10,000/- and had taken the amount with him. As already pointed out this case is mad eout for the first time at the stage of evidence and it is not even alleged in the plaintiff that the plaintiffs had ever offered any amount to the defendant at his residence. The trial Court, in our view, was not right in accepting this case of the plaintiffs which was made out for the first time at the stage of evidence. We must therefore, hold that th eplaintiffs have fialed to prove that they were ready and willing to perform their part of the contract whichw as a contract of resale and not a mortgage and that the were not entiled to any account form the defendant. Since time was of the essence of the contract of resale, the plaintiffs had failed to perform their part of the contract within the itme stipualted under the contract of resale and they were, therefore, not entitled to any decree for specific performance. The defendnat's appeal is allowed and the plaintiffs appeal is dismissed. The judgment and decree of the trial Court decreeing the plaintiff's claim for specific performance of the contract of resale are, therefore, set aside and the plaintiff's suit is dismised with costs throughout. Leave to file appeal to Supreme Court under Artcile 133 (i) (c) praved for the short Zinzarde for th eplaintiff is rejecctecd.
Section 58 in The Indian Contract Act, 1872 [Entire Act]
Ardeshir H. Mama vs Flora Sassoon on 21 May, 1928
9. It was then contended on behalf of the plainitff that the have been throughout ready and willing to perform theri part of the contract but that it was the defendant who was evading to retransfer the property inf avour of the plainitffs. It is urged that the plainitffs had sent a notice to the defendant on 9.3.1962 and had gone to the houses of the defendnat about a fortnight after this notice but the defendnat did not accpet the offer mad eby plaintiff No. 1 Mohansing and declined to reconvey the property. Having read the evidence of plaintiff No. 1 Mohansing and his witness Gulabrao who, accoridng to the plaintiff No. 1 was going to leand a sum of Rs. 10,000/- to him we are satisfied that there is no substance in this contention. As pointed out by the Privy Council in Ardeshir v. Flora Sassoon AIR 1928 PC 208 in a case where the plaintiff claims specific performance of a contract of sale he must allege, and if the fact was traversed, he is required to prove a continuous readiness and willingness from the date of the contract to the time of the hearing, to perform the contrct on his part and the failure to make good that averment bring with it the inevitable dismissal of the suit. The readiness and willingness to perform the contract must be with reference to the true nature of the contract found between the parties and not readiness and willingness to perform the contract as the plaintiff understood it to be. In the instant case, the plaintiffs case throughout has been that the defendnat is not entitled to the amount of the purchase price mentioned in the contract of sale but that in substance the transaction was one of mortgage and that the defendant was liable to account for the income of the land which was in his possession and that they would pay only whatever is found due after making accounts. This is clear form the terms of the notice (Exhibit 30) served by the plaintiffs on the defendnat. Even in the plaint, the plainitffs case was that the plaintiffs were entitled to get the resal after making acounts of the income made by the defendant from the trees in the land standing in the field in quesiton and that the defendnat had refused to abide by the real transactionor by the transaction as shown in the sale deed and the kararnama. It is obvious that the plainitffis were not entitled to contend that the transaction betweent he parties was in the nature of a mortgage. Such a contention is not open to them in view of the provisions of Section 58(c) of the Transfer of Property Act. The very object of the amending Act of 1929 which added the proviso to Section 58(c) was to shut out an inquiry whether a sale with a stipulation for retransfer is a mortgage where the stipulationis not embodied in the same document, as observed by Patanjali Sastri J. in Venkata Subbarao v. veeraswami, AIR 1946 Mad 456.
Maung Tha Huyin vs Maung Mya Su. on 2 December, 1909
Further in Maung Po Yin v. Maung shwe Kin, AIR 1923 Rang 42 the law on the subject and the distinction from cases where there is an option to repurchase and the decision in 43 Ind app 26 = (AIR 1915 PC 83) are emphasised by hte appropriate quotation from Halsbury's Laws of England. The citation from Vol. 21at page 72 is as follows :
Samarapuri Chettiar vs A. Sutharsana Chettiar And Anr. on 2 May, 1919
"In support of the contention that time was not the essence of the contract reliance is placed on the Privy Council decisions in ILR 40 Bom 289 : 43 Ind App 26 + (AIR 1915 PC 83). The cases how ever where there is an option of repurchase of immovable property once sold form an exception to this equitable rule, Indian Contract Act. Edn. 7 at page 302. and where a time limt has been noted in Pollock and mulla' Indian Contract Act. Edn. 7 at page 302 and where a time limt has been laid down in the agreement of repurchase and where there is no question of mutual obligaiton the exceptional proviions for the seller's benefit must be exercised strictly within th etime prescribed.
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