The court upheld specific performance of a contract where the plaintiff proved payment despite the defendant's encumbrance issues, establishing that time was not of the essence in performance.

JUDGMENT :

Gauri Godse, J.

BRIEF FACTS:

1. This second appeal is preferred by the defendants to challenge the concurrent judgments and decrees passed for specific performance of the agreement to sell the suit property. The Trial Court decreed the suit, directing defendant no.1 (appellant no.1) to execute a sale deed in favour of respondent no. 1(plaintiff) and hand over possession of the suit property to the plaintiff. All the defendants challenged the Trial Court’s decree by filing the first appeal in the district court. The first appeal is dismissed, and the Trial Court’s judgment and decree is confirmed. The present respondents are the heirs and legal representatives of the deceased plaintiff.

2. The second appeal is admitted vide order dated 29^th July 1992 on the questions of law framed in grounds (C), (F)and (G), which read as under:

“(1) Whether both the Courts were justified in decreeing the suit filed on the basis of oral agreement, when admittedly there was a written document about the suit property, dated 31.12.1973, between the Plaintiff and the Defendant No.1, and the said Written document do not refer to earlier alleged oral agreement and therefore, earlier oral agreement if any was “novation”?

(2) Whether both the Courts were right in holding that even though, document dated 31.12.1973, stipulated 4 months period for completion of the transaction and that there was no provision for the extention of the period, “time was not essence of the contract” and that the Suit for specific performance filed in the year 1980 was within time?

(3) Whether both the Courts were justified in passing the decree for specific performance with respect to entire suit land, when Defendant No.1 alone had entered into the alleged suit transaction in which suit property is an ancestral joint Hindu Family property of all the Defendants and he could not have bound the shares of other coparcenors?

PLAINTIFF’S CASE:

3. It is the plaintiff’s contention that in 1972, the suit property was encumbered, and the defendants were willing to sell the property to the plaintiff for Rs. 48001/-, although the valuation was only Rs. 20000/-. Accordingly, as per an oral agreement, the plaintiff paid Rs. 15000/- and possession was handed over to the plaintiff. Thereafter, the plaintiff paid Rs. 5000/-. Thus, the plaintiff paid a total of Rs. 20000/- before December 1973. Defendants recorded a statement before the Consolidation Officer in the proceedings initiated under the Maharashtra Prevention of Fragmentation and Consolidation of Holdings Act 1947 (“the 1947 Act”)regarding the sale agreement in favour of the plaintiff and thereafter entered into a written contract dated 31^st December 1973 to sell the suit property to the plaintiff for a total consideration of Rs. 48,000/-. As per the written contract, out of the total consideration, a balance amount of Rs.33,001/- was to be paid within four months, and possession was to be handed over on execution of the sale deed. There was a discrepancy in the oral agreement and the written contract about the balance consideration amount and possession. However, given the cordial relations with the defendants and the plaintiff's possession, he accepted the terms and conditions of the written contract.

4. Thereafter, as requested by the defendants, the plaintiff on 24^th May 1974, repaid the defendants’ loan amount of Rs.4630/- and Rs.370/-. The defendants again requested to pay an amount of Rs.28,000/- for repayment of the loan; hence, the plaintiff paid an amount of Rs. 28,000/- on 1^st July 1975, and the defendants issued a receipt. Thus, the plaintiff paid a total amount of Rs. 53,000/- to the defendants. As per the statement recorded before t