TMI Blog1968 (2) TMI 130X X X X Extracts X X X X X X X X Extracts X X X X ..... ad since 1952, and living there with the 1st defendant, whom he married in 1950. Jaganmohan Rao, the 2nd defendant, though he obtained Master's Decree in Arts, settled down in Moparru and is attending to the cultivation of his lands. The lands which fell to the share of Varaprasada Rao were managed by Rangayya, who was keeping the income therefrom. It is not disputed that the relations between the father and his two sons, despite the division of the properties, were cordial and affectionate. 2. The mother of the 1st defendant owned Ac. 14-54 of Seri Magani land situate in five survey numbers in Nelapadu village, also in Tenali Sub-District, having got it from her father. Out of the said land, she gifted in 1955 Ac. 10-00 (the suit land) to her daughter, the 1st defendant, and the rest of the land to her elder brother, by two separate deeds. Lingarao Chowdary, husband of the 1st defendant's elder sister, who arranged the marriage of the 1st defendant, was managing the suit land, leasing it to tenants, collecting the Makta, and remitting it to the 1st defendant. Evidently apprehending legislation in favour of tenants, Rangayya personally cultivated the suit lands in 1956 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng to that measurement. 4. In the plaint it was averred that in addition to ₹ 2,000 the plaintiff paid ₹ 10,000 to the 2nd defendant on behalf of both the defendants, on 18th January, 1960, and obtained the receipt, Exhibit A-2. The land was also measured in 1961, and the extent of Ac. 10.00 determined. The plaintiff made the balance of consideration ready before 22nd August, 1961, and was demanding the fulfillment of the terms of the contract, but the defendants were putting off the same. Thereupon, he issued telegraphic notices to both the defendants on 21st August, 1961. The plaintiff effected improvements to the land spending ₹ 5,000 as a result of which the yield increased from 4 to 5 to 20 or 25 bags, per acre and the price of the land also rose from ₹ 3,000 to ₹ 5,000 per acre, and there were offers from others at that rate. The defendants with a view to make profit stated that there was no necessity to furnish security, and that he should take the sale deed without security, or give up the contract altogether. The plaintiff had always been ready and willing to perform his part of the contract but the defendants were likewise bound by it and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... yielding 20 or 25 bags per acre even on the date of the contract. The defendant sent a proper reply to the telegraphic notice, and as the plaintiff in anticipation of her suit to recover possession, filed the suit for specific performance. 6. The 2nd defendant, in a separate written statement, contended that he was neither a necessary nor a proper party to the suit, as his only obligation was to give security in the event of the plaintiff being entitled to get a sale deed from the 1st defendant. The plaintiff was guilty of laches, and had not fulfilled the terms of the contract under which time was the essence. He is therefore, not entitled to specific performance. The 2nd defendant cannot be made liable for damages. He admitted that the plaintiff paid him ₹ 10,000 on 18th January, 1960 though admittedly, he was not the owner of the property. The payment was made on the plaintiff's own responsibility, and not because the 2nd defendant was the agent of the 1st defendant for that purpose. There was no authorisation in that regard. When the 2nd defendant remonstrated with the plaintiff that the contract was annulled for non-payment of ₹ 8,000 on or before 22nd Augus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as follows:-- (1) Whether the time for payment of ₹ 8,000 on or before 22nd August, 1958 is the essence of the contract. (2) Even if it is found in the affirmative, whether the contract has been avoided by the 1st defendant. (3) Whether the receipt of ₹ 10,000 by the 2nd defendant was binding on the 1st defendant, and amounted to a waiver of the 1st defendant's right to rescind the contract. (4) Apart from the delay in the payment of ₹ 8,000 whether plaintiff was otherwise ready and willing to perform the contract. (5) Whether the plaintiff is disentitled to claim specific performance either on the ground of default in payment of ₹ 8,000 or his not being ready and willing to perform the contract. (6) Whether the plaintiff became disentitled to specific performance by reason of the clause relating to security in Exhibit A-1 and Exhibit B-3, being vague and indefinite, and therefore void. 10. We shall now consider the validity of these contentions. The first three can conveniently be taken up together. 11. The law bearing on the question, when time is of the essence of the contract in the case of an agreement to sell land is well e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ven where the time is of the essence, is only voidable, it is enforceable by law at the option of the promisee, but not at the option of the promissor. It is therefore, necessary that the rescission must be express and unequivocal, whether it be by communicating the rescission as provided for in section 66, or bringing a suit to set aside the contract. 16. In the leading case of Jamshed Khodaram Irani v. Burjorji Bhunjibhai L.R. (1916) 43 IndAp 26 : (1916) 30 M.L.J. 186 : I.L.R. 40 Bom. 289 : A.I.R. 1915 P.C. 83, the Privy Council laid down that section 55 of the Contract Act did not lay down any principle which differed from those that obtained as regards contracts for the sale of land by which equity in such a case looks, not at the letter, but at the substance of the agreement in order to ascertain whether the parties, notwithstanding that they named a specific time within which completion was to take place, really intended no more than it should take place within a reasonable time. It was also laid down that equity will also infer an intention that time should be of the essence of a contract from what has passed between the parties prior to the signing of the contract, the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nly excludes the notion that these time limits were of merely secondary importance in the bargain, and that to disregard them would be to disregard nothing that lay as its foundation. His Lordship also observed that intention to make time of the essence of the contract may be evidenced by either express stipulations or by circumstances which are sufficiently strong to displace the ordinary presumption that in a contract of sale of land stipulation as to time are not of the essence. It was also held that even if time was not originally of the essence, the appellants could by notice served upon the respondent call upon him to take the conveyance within the time fixed and intimate that on default of compliance with the requisition the contract would be treated as cancelled. 19. Bearing these principles in mind, we shall now examine the evidence in this case as to whether the time for payment of ₹ 8,000 was of the essence of the contract. The answer to that mainly depends upon the construction of the contract as embodied in Exhibit A-1 and B-3. The relevant recitals in Exhibit A-1 are as follows:-- The 1st defendant had been residing at Nizamabad, and consequently unable to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ime for payment of money being intended to be of the essence. Since ₹ 8,000 were stipulated to be paid within 2 1/2 months, while the balance of ₹ 20,000 was to be paid only after three years, the parties might have thought it fit to provide for interest in respect of ₹ 20,000, but not for ₹ 8,000. That circumstance alone does not establish an intention of the parties contrary to the legal presumption. 22. The next document for consideration is Exhibit B-2, a letter dated 6th August, 1958, purporting to be signed by the plaintiff and addressed to Rangayya (D.W. 2). The plaintiff denied his signature as well as having written it. In this letter, it is stated that the plaintiff bargained for the sale of his land in Burrapalem, but that was not settled, and that as soon as it was settled, he would pay ₹ 8,000 with interest. The plaintiff wanted to explain to D.W. 2 all the facts personally, but as he was informed that it was not necessary, that letter was sent. It was also stated that the plaintiff was going to Mahabubabad, and that D.W. 2 should not think that the amount was not paid, and that it would be paid with interest by harvesting time. It was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be the best course. Though the genuineness of this letter was questioned by the plaintiff, since it is written on an inland letter paper bearing the postal seals, it is difficult to hold that it was brought into existence. Even so, Exhibit B-4 only expresses the opinion of the 1st defendant's husband regarding the default. It does not say that the parties intended that the time for payment of ₹ 8,000 was of the essence of the contract, or that his wife was unwilling to extend the time, or that she had authorised him to write that letter. He only expressed his opinion that it might land to trouble if the contract is not cancelled. The most significant fact is that Exhibit B-4 does not say that D-1 or her husband who wrote that letter, would give or had already given a notice cancelling the contract, but only suggested that D.W. 2 might send a notice and take back possession. Nor does this letter recite, as put forward in defence evidence, that the 1st defendant intended to purchase the land of Dr. Krishna Murthy in Nizamabad, relying upon this payment of ₹ 8,000 and that that contract had fallen through by reason of the non-payment by the plaintiff. This letter t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n, the plaintiff failed to pay ₹ 8,000, by 22nd August, 1958, and that therefore she treated the contract as cancelled and the plaintiff had no rights under the contract and that ₹ 2,000 paid by the plaintiff on 6th June, 1958 had become forfeited. Even in this reply the 1st defendant only stated that she treated the contract as cancelled, but not that it was ever communicated to the plaintiff, or, in what manner and by whom. In Exhibit A-9 she denied the fact of payment of ₹ 10,000 and stated that she did not authorise any one to receive it on her behalf, and that, even if true, it would not bind her. It recited that the plaintiff delayed the contract very much and, contravened the essential term of the contract, and, therefore, he had no cause of action. The reply concluded by saying that as the contract was cancelled, the plaintiff had no right to be in possession of the property, and was liable to pay rent at 18 bags per acre for the last three years. 27. Even in this notice D-1 did not assert that the 1st defendant or her husband or D.W. 2 on her behalf rescinded the contract, or communicated it to the plaintiff. It is specially significant to note that ev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th by the 1st defendant (D.W. 1) and by her father-in-law (D.W. 2) that the whole matter relating to the sale contract was left to D.W. 2, that he carried on the negotiations and was charged with securing the performance of the contract, and by Exhibit B-4 he was even requested by the 1st defendant's husband to cancel the contract. It is also admitted by defendant 1 that D.W. 2 was the person who gave instructions for preparing the written statement, and in charge of the conduct of the suit on her behalf. The omission in the written statement to put forward a positive and specific case regarding the circumstances existing before the contract which made time the essence of contract, or why it was not cancelled either by D.W. 2 or by D.W. 1, apart from the other omission referred to supra, establish that the case now put forward by the defendant is not true, and that the written statement was kept vague with a view to improve the case during trial. 29. The 1st defendants D.W. 1 deposed that ten days before the contract her father-in-law (D.W. 2) came to Nizamabad and told her that the plaintiff was willing to purchase the suit land at ₹ 3,000 per acre, and asked for her ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... chase anywhere she liked. She was ready to perform her part of the contract, but the defendant committed breach in not paying ₹ 8,000. She did not authorise D-2 to receive money on her behalf from the plaintiff. In August, 1961, D-2 sent word through D.W. 3 that the plaintiff paid ₹ 10,000 subject to the condition that he (the plaintiff) would obtain her consent and ratification for the payment, and enquiring whether he (D-2) could retain the money, or should return it to the plaintiff. She replied that she did not want to receive the money. She denied the suggestion that there were disputes between herself and D-2 with regard to the keeping of ₹ 10,000, and consequently the sale-deed was not executed. 30. The evidence of the 1st defendant that time for paying ₹ 8,000, was of the essence of the contract cannot be accepted for several reasons. If really she wanted that the contract should be finalised in her presence, and, therefore, the plaintiff and D.W. 2 came to Nizamabad with the agreement, and she, her husband and D.W. 2 all wanted that payment of ₹ 8,000 by 22nd August, 1958, should be of the essence of the contract, the easiest thing would ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . But that it is not the case of the defendants. We cannot believe that the plaintiff was put in possession of the land even without the payment of ₹ 2,000 to D-2 at Tenali on 6th June, 1958. The agreement clearly recites that the land belongs only to the 1st defendant, and the price was due only to her, but that the consideration had to be paid to them, thereby empowering even the 2nd defendant to receive it on behalf of the 1st defendant. The other circumstances also probabilise this inference. Defendant 1 was away at Nizamabad, and the 1st defendant and the 2nd defendant were admittedly on cordial terms. So far as D.W. 2 is concerned, the 1st defendant admitted that she had complete faith and confidence in her father-in-law, and that she did not even participate in the negotiations for the sale, and she left the whole matter in his hands. In fact, it is he that engaged the Counsel, and prepared the written statement. We cannot, therefore, for a moment, believe that the 2nd defendant and D.W. 2 did not have the authority to receive ₹ 2,000 on 6th June, 1958, or the balance of consideration. The sum of ₹ 10,000 was received by D. 2 with the consent and acquiescen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wanted at least ₹ 10,000 to be paid as advance, as they intended to purchase land at Nizamabad where they were cheaper than at Moparru. He would have it that two or three days after he informed the plaintiff about it, the plaintiff stated that he could raise only ₹ 8.000 but not ₹ 10,000 and that he would pay ₹ 2,000 and pay the balance within 2 1/2 months as he could not secure the full amount of ₹ 10,000. The payment of ₹ 8,000 he deposed was thus intended to be the essence of the contract. He further deposed that he took objection to the recital in Exhibit A-1 that the land was intended to be purchased at Moparru, but that he was satisfied because that recital was omitted in Exhibit B-3. He stated that he and the plaintiff went to Nizamabad, but not P.W. 3, and that the plaintiff paid ₹ 2,000 directly to the 1st defendant there. He denied the suggestion that the plaintiff tendered ₹ 8,000, within the stipulated time, but that he asked him to keep it and pay the same with interest when called upon by D.W. 2. He corroborated D-1 as regards his going to Nizamabad with the letter, Exhibit B-2, and her insisting on the contract being ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which is not found in Exhibit A-1. His explanation that when he questioned the scribe about that omission, the scribe replied that it was unnecessary to mention specifically about it, and that he accepted it, which is most fantastic. He corroborated defendant 1 as to what happened at Nizamabad at the time she signed Exhibit A-1. He stated that the whole document, Exhibit A-1, except the signature of D-1 as well as Exhibit D-3 were completed at Tenali. The witness admitted that he did not give a reply to Exhibit B-2, which is most unnatural, if time for payment of ₹ 8,000 was the essence of the contract. He was not aware if there was any correspondence between D-1 and her husband on the one hand and the plaintiff on the other. He admitted he did not issue any registered notice to the plaintiff, cancelling the contracts instructed by D-1 and her husband in the scope of peacefully settling the matter, and he did not send it even after he was asked to do by his son in his letter, Exhibit B-4. Not did he send a reply to his son to Exhibit B-4. He then made the amazing statement that there was no written correspondence at all between himself and his son after Exhibit B-4, that is, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entary evidence but is most artificial and improbable. He attempted to support the case of the defendant somehow or other, and he is not a witness of truth. 35. G. Papaiah, husband of the junior maternal aunt of D.W. 2, was examined as D.W. 3. He deposed that he was sent to Nizambad by D.W. 2 to inform the 1st defendant that he was not giving reply to several letters written to him with respect to the suit contract, and that they said that they were cancelling the contract and refunding to the plaintiff the money paid by him as advance, and that they asked him to intimate the same to D.W. 2, and that they would send a letter to him. The evidence of this witness is at variances with that of D.Ws. 1 and 2. Even D.W. 2 had not stated that he had sent several letters, but said that he sent only one letter in reply to Exhibit B-1. D-1 only stated that D.W. 2 should cancel the contract, but not that she herself was cancelling the contract and refunding the advance. In fact, they never wrote any such letter, nor refunded the amount. D.W. 3 also deposed that he was sent by D-2 after the plaintiff's telegraphic notice, to inform her about the payment of ₹ 10,000 and that she ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Exhibit A-1, without realising that he agreed to give his property as security for the sale consideration. He realised the hardship in not putting the time limit for security and was repenting for his having signed in Exhibit A-1 agreeing to give security. He stated that without receiving the sum of ₹ 2,000, he signed in Exhibit A-1 and gave it to the plaintiff. The sum of ₹ 10,000 received from the plaintiff was kept by him in an iron safe in his house for the last three years and three months. He would have it thinking that the plaintiff would obtain the consent of the 1st defendant in a short time, he passed the receipt, Exhibit A-2, in the usual course without mentioning the condition of the responsibility agreed upon by the plaintiff. He did not write a letter to D-1 intimating her about the payment of ₹ 10,000 because the plaintiff took the responsibility to obtain her consent. He had' not stated even in his reply notice, Exhibit A-10, that ₹ 10,000 was received as conditional deposit. He admitted that he did not refund the sum of ₹ 10,000 to the plaintiff, as he filed the suit immediately thereafter, nor refunded the money subsequently, no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... edge of D.W. 2 unconditionally on behalf of D-1 establishes that the 1st defendant was not entitled to claim compensation for loss, if any, occasioned by the non-payment of ₹ 8,000 within the stipulated period. 41. We shall now refer to the evidence on behalf of the plaintiff. 42. The plaintiff, Venkatasubbayya, examined himself as P.W. 1. He stated that Exhibit A-1 was executed in his favour with respect to the plaint schedule land, that he paid ₹ 2,000 to D-2 as earnest money, then after D-2 executed, and that D.W. 2 arranged the sale in his favour. Exhibit A-1 was written in the fuel depot of his nephew at Tenali, and it was attested by D.W. 2 and his brother-in-law P.W. 3. D-1 was not present at the time of execution of Exhibit A-1, and he saw her for the first time only in Court. Lakshmayya (P.W. 3) and Rangayya (D.W. 2) went to Nizamabad and after obtaining the signature of D-1, gave it to him. According to the agreement, he (P.W. 1) had to pay ₹ 8,000 by 22nd August, 1958 and the balance of ₹ 20,000 within three years thereafter with interest at 5 per cent. There was no term in the contract that the money should be paid only to D-1. According to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was being purchased by D-1 at Moparru only. He denied that Rangayya took any objection for the recital in Exhibit A-1 to that effect, or that thereupon it was scored out in Exhibit B-3. He also denied that he accompanied Rangayya to Nizamabad to get the signature of D-1 in Exhibit A-1, or that he paid ₹ 2,000 to her hands and delivered Exhibit B-3 to her. As Rangayya said that the amount should be paid without fail by 22nd August, 1958, he consented to that condition. 43. The evidence of this witness that time was not of the essence of the contract, is consistent with the recitals in Exhibits A-1 and the other evidence already considered. But we are unable to accept the evidence of this witness and P.W. 3 that he tendered ₹ 8,000 on 10th August, 1958 for several reasons. The telegraphic notice itself does not mention that fact. There was no such averment even in the plaint. Further, it is also inconsistent with Exhibit B-1 that he was not able to raise the money on 1st February, 1959. This appears to be an attempt by the plaintiff to support his claim even in the event of its being found that time was of the essence of the contract. But we are unable to accept that e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aid to D-1 or D-2. He denied that Rangayya raised an objection to his mentioning in Exhibit A-1 that land would be purchased in Moparru, or that he and the plaintiff satisfied him that it would be omitted in Exhibit B-3, and need not be scored out in Exhibit A-1. He denied that the plaintiff and Rangayya went to Nizamabad. 46. The evidence of this witness is consistent with the recitals in Exhibit A-1, and the ether evidence, and corroborated the testimony of the plaintiff. 47. The brother-in-law, of the plaintiff, S. Lakshmayya, is examined as P.W. 3. In 1962, after the execution of Exhibit A-1, he was affected by paralysis, and his eye-sight was also affected. He attested Exhibit A-1 and B-3 and corroborated the evidence of the plaintiff and P.W. 2 with regard to their execution. He was present when the bargain was struck. Rangayya settled the transaction. D-2 was not present at the time of the bargain, or when the contract was written. The plaintiff paid ₹ 2,000 to D-2 as earnest money when Exhibit A-1 was written. Rangayya did not raise any objection to the recital in Exhibit A-1 that land was intended to be purchased at Moparru. He stated that the time for payment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... p between them. The learned Judge has also ignored the fact that without the payment of ₹ 2,000 the land would not have been delivered to the plaintiff on 6th June, 1958, which is not disputed. His conclusion that the absence of provision for interest shows that time was to be of the essence of the contract, cannot be accepted, as even the existence of a penal clause would not make time the essence of contract. He was in error in observing that there was no averment in the plaint, that the 1st defendant waived the right to avoid the contract nor an issue regarding the same, and therefore the plaintiff could not be permitted to urge the point. That view is opposed to law as already stated. Nor can we agree that the letter, Exhibit B-1 has the effect of cancelling the contract, or communicating the rescission to the plaintiff, or that the receipt of money by the 2nd defendant on 18th January, 1960 had not got the effect of condoning the delay in payment of ₹ 8,000. 50. For the foregoing reasons, differing from the trial Court, we hold that time for payment of ₹ 8,000 was not of the essence of the contract. Even though the plaintiff committed a breach in not payin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd willingness to perform his part of the contract. The trial Court found that the plaintiff did not have the necessary money ready till after the agreement was cancelled by the vendors, and that, in order to gain time and cover his inability to produce the amount, he made unreasonable demands on the vendors, calling upon them to produce satisfactory evidence about the discharge of a prior mortgage. Before the High Court, finding of the trial Court that the money was not kept ready, was not questioned, but it was argued for the plaintiff-vendee that he was ready and willing to perform the contract, in other words, that he could raise the money. Subba Rao, C.J., (as he then was) and Chandra Reddy, J. (as he then was) held that such a plea could be raised in appeal, and that the plaintiff could prove that he could have raised the said amount at the relevant time. On the other hand, Umamaheswaram, J., agreeing with the trial Court, held that since the plaintiff had made a clear, categorical and specific case that he had cash ready, it was not open to him to give up that case and to contend in the alternative that even if he had not got the cash ready with him, he could have raised tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l denial of all the allegations in the plaint including the averment that he was ready to pay the balance of the consideration within the time fixed and was demanding fulfillment of the contract, was made. The 2nd defendant simply alleged in his written statement that he cannot be deemed to have admitted any allegations not specifically admitted. It would thus be seen that in addition to alleging that the plaintiff made ready the balance of consideration within the time fixed, which is capable of being understood as his having the cash ready, he expressly averred that he was always ready and willing to perform his part of the contract, that is, he had the required capacity to raise the balance of money at the relevant time and that allegation was traversed, and it has therefore to be proved by the plaintiff, even in the absence of an issue. We shall now examine the evidence adduced on behalf of the plaintiff. 57. In his chief-examination, the plaintiff denied that he was unable to raise the sum of ₹ 8,000 within the specified time. He deposed that he took up forest contracts from 1944 in Mahaboobabad and Kothagudem. The contracts of coups in forest area taken by him ranged ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from the cash available with him, and partly from the loans taken from others. His nephew, Ramabhadrayya, came to Mahboobabad in January, 1960 and informed him of the demand made by Rangayya for money, and that four days later, he paid ₹ 10,000 to D-2 at Tenali. He had current amount in the Andhra Bank at Tenali. He admitted having withdrawn ₹ 10,000 after one month from the deposit of ₹ 21,500 after a month, as the amount was not fetching interest. He added that he was always willing and ready to re-deposit that amount. He withdrew ₹ 10,000 on 31st June, 1961 and invested it in his business. A sum of ₹ 11,000 and odd was available in his account by 1st July, 1961. He denied that he deposited ₹ 21,500 for the purpose of his business, and not for the payment of sale consideration. He sent word to D-2 and D.W. 2 after making the deposit and purchasing the stamps. It may be noted that the stamps were purchased on 24th May, 1961, and on that day the entire balance of sale price was in the bank. The plaintiff would have it that D-2 and D.W. 2 came along with his nephew, Gopalakrishnayya, and D-2 went to Nizamabad and brought D-1 and said that within f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tenali was worth ₹ 40,000. Thus D.W. 2 could not deny the solvency or capacity of the plaintiff to raise the money, or that he was ready and willing to pay the balance of the sale price. Regarding the deposit of the balance of the sale price in the Andhra Bank, the evidence of D.W. 2 is that he did not know whether the plaintiff deposited any amount in that Bank. 61. The 2nd defendant examined as D.W. 7 did not deny the capacity of the plaintiff to perform his part of the contract after the payment of ₹ 10,000. Evidently, to rebut the plaintiff's evidence that defendant 2 brought the 1st defendant from Nizamabad for execution of the sale deed, the 2nd defendant in his cross-examination stated that he did not remember whether he was in those parts or not in May, 1961, and that he did not remember whether defendant 1 came to Moparru in May, 1961, that he had no knowledge of the plaintiff purchasing the stamps or depositing the amount in May, 1961, in the Bank, and that he did not go to Nizamabad and bring D-1 to Tenali. This evidence of the witness is a vain attempt to support their case. He was giving evidence in 1963, and there should not have been any difficult ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e placed reliance on section 93 of the Evidence Act, and argued that since on its face, the clause is ambiguous and defective evidence cannot be let in, to give the meaning or supply the defects, and also cited some authorities. It is not necessary for us to consider the validity of this contention as Sri Subbarao, the learned Counsel for the appellant stated that he was instructed by his client to say that he does not press for a decree for specific performance in respect of the security clause but will be content with decree only against the 1st defendant. He argued that such a decree could be granted under section 16 of the Specific Relief Act. But Sri Bhujanga Rao stated that section 16 has no application to the present case, as the contracts are not severable. He submitted that registered notices were issued to both the defendants, the suit was instituted against both, and the plaintiff prayed for a decree against both of them in the trial Court as well as in appeal, and therefore, the plaintiff cannot be permitted to exercise the option at this stage. 64. Section 16 of the Specific Relief Act, 1877, which is reproduced in identical terms as section 12(4) of the Specific Re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pect to the land. D.W. 2 told him that D-2 would furnish his property as security. P.W. 2 deposed that the understanding was that a single document was to be executed by D-1 and D-2 including therein the security of D-2's property, and that such an arrangement was made to avoid stamp for separate security bond. The 1st defendant in her evidence stated that she was always ready and willing to perform the contract, though her complaint was that it was the plaintiff that committed breach of the contract, and therefore became disentitled. She deposed that she did not know whether there was any dispute with respect to her mother's title to the suit land, and that she thought that she had indisputable title to it. Her father-in-law (D.W. 2) did not tell her that the plaintiff had asked for security, and that the property of D-2 could be furnished as security. She also made the significant statement that she did not ask D-2 to give his property as security. The evidence of D.W. 2 is that there was no talk as to which property and what extent of the property of D-2 was to be furnished as security. In cross-examination he stated that the plaintiff asked for security, as, according t ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
