9911796707
TMI Blog1969 (8) TMI 91X X X X Extracts X X X X X X X X Extracts X X X X ..... l Appeal No. 1782 of 1966 is filed by the plaintiff in the suit and Civil Appeal No. 1783 of 1966 is filed by the second defendant (who shall hereinafter be referred to as the defendant), who is contesting this appeal. 2. The suit was for specific performance on the basis of an oral agreement alleged to have been entered into on 9.9.1121 (Malayalam Era) between the plaintiff and the 1st defendant who died very soon after the filing of the suit. The suit was contested by the second defendant, his widow. The trial court decreed the suit as prayed for but in appeal the High Court did not accept the agreement pleaded by the plaintiff but still granted a decree directing the defendant to execute a sale deed in favour of the plaintiff in respect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... part thereof, should be assigned to the plaintiff for a consideration of ₹ 11500 and accordingly this defendant is willing to give such property as mentioned above to the plaintiff. After the defendant filed her written statement, the plaintiff did not amend his plaint and pray for any relief on the basis of the agreement pleaded by the defendant nor did he inform the court that he was ready and willing to accept the agreement pleaded by the defendant or that he was willing to perform his part of that agreement. The suit proceeded on the basis of the agreement pleaded in the plaint. 4. The 1st question that arises for decision is whether the agreement pleaded in the plaint is true. The burden of proving that agreement is naturally o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed in the sale deed. To explain this important omission he has examined P.W. 2, who claims to be a document writer of considerable experience. He claims that the document in question was written by one of his assistants. His evidence is to the effect that the vendor and the vendee wanted to incorporate the agreement as regards re-conveyance in Exh. P. 1 itself but he advised them that it could not be done. This is a strange legal advice. This evidence is on the face of it unbelievable. There is also no satisfactory explanation why the alleged agreement was not reduced into writing. 5. In support of the alleged agreement reliance was tried to be placed on Exh. P-2, which is said to be a document signed by the first defendant after the prese ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... if the 1st defendant could not trust the plaintiff to advance a sum of ₹ 24,000 without security as could be gathered from the plaintiff's evidence, we fail to see why the 1st defendant should have relied on the oral assurances given by the plaintiff in the matter of reconveying the property. From the averments made by the defendant in her written statement it does appear that when the 1st defendant was in his death bed being stricken by cancer, there was some talk about reconveying a portion of the suit properties to the plaintiff. It may also be as held by the trial court that the suit property was worth more than ₹ 24,000 at the time of its sale. 8. It appears likely that neither side has come forward with the true vers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iff is said to have been entered into at the time of the execution of Exh. P-1 whereas the agreement put forward by the defendant is one that is said to have been arrived at just before the filing of the suit. The two are totally different agreements. The plaintiff did not plead either in the plaint or at any subsequent stage that he was ready and willing to perform the agreement pleaded in the written statement of defendant. A suit for specific performance has to conform to the requirements prescribed in Forms 47 and 48 of the 1st Schedule in the Civil Procedure Code. In a suit for specific performance it is incumbent on the plaintiff not only to set out the agreement on the basis of which he sues in all its details, he must go further an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plaintiff but at the same time this Court thought that on the peculiar facts of that case, it was appropriate to grant a decree in favour of the plaintiff for ₹ 30,000 which admittedly remained unpaid. As seen earlier before a decree for specific performance can be given the plaintiff has to plead and satisfy the court about his willingness to perform his part of the contract. Hence in our opinion the decision in Srinivas Ram Kumar's case [1951]2SCR277 : [1951]2SCR277 does not bear on the facts of the present case. 11. For the reasons mentioned above we dismiss Civil Appeal No. 1782 of 1966 and allow Civil Appeal No. 1783 of 1966. In the result the suit from which these appeals arise stands dismissed. 12. Now coming to the ques ..... X X X X Extracts X X X X X X X X Extracts X X X X
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