An unregistered agreement to sell does not confer rights for specific performance; plaintiffs failed to show readiness and willingness to perform contractual obligations.

JUDGMENT :

Hemant M. Prachchhak, J.

CHALLENGE:-

1. Present appeal is filed by the appellants (original defendants) under Section 96 of the Civil Procedure Code 1908, challenging the judgment and decree dated 31.12.2007 passed by the learned 2nd Additional Senior Civil Judge and J.M.F.C, Navsari (hereinafter referred to as the "trial Court") in Special Civil Suit No.3 of 2005 whereby the trial Court has decreed the suit filed by the original plaintiff and directed the defendants to execute sale deed of suit land described in plaint para (2) bearing block no. 2409 admeasuring 4 Hectors 17 Are 74 sq. mtrs situated in the sim of village Abrama by accepting balance amount of Rs.3,59,517/- within one month from the date of judgment.

BRIEF FACTS:-

2. The respondents herein - plaintiffs (father and son) instituted the suit seeking specific performance of an agreement to sell dated 17.02.2004, and permanent injunction in respect of agricultural land bearing Block No. 2409, Nos.1 and 2, admeasuring 4 Hectares, 17 Ares and 84 sq.mtrs., situated at village Abrama. Taluka Jalalpur, District Navsari. The defendants are real brothers and recorded owners of the suit land.

2.1 It was the case of the plaintiffs that the defendants had agreed to sell the suit property for a total consideration of Rs. 9,00,000/-. Out of this, a sum of Rs. 5,40,583/- was paid by the plaintiffs, and possession of the suit property was handed over to them. The balance amount of Rs. 3,59,517/- was agreed to be adjusted towards clearing the bank debts and charges on the suit land, which the defendants had undertaken to discharge, and thereafter to execute the registered sale deed within six months. The plaintiffs alleged that despite repeated requests and notice dated 21.10.2004, the defendants failed to perform their part of the contract and instead attempted to alienate the property to third parties, though possession continued with the plaintiffs.

2.2 The defendants filed a written statement denying execution of any sale agreement. Their case was that the plaintiffs, taking advantage of their weak financial condition, had obtained signatures on blank papers under the guise of monetary assistance for repayment of loans. According to them, there was no concluded contract of sale, but only a money lending transaction, a major portion of which had already been repaid. They also denied that possession of the suit property was handed over to the plaintiffs.

2.3 On the basis of the pleadings, the trial Court framed issues vide Exh. 23 which read as under:-

"1. Whether plaintiff proves that they have purchased the suit property from the defendants, as per the terms recited in agreement to sale dated 17/02/2004 and since then they are in possession and occupation of 10 Vighas land of the northern side of the suit property?

2. Whether plaintiffs prove that defendants have failed to fulfill the stipulation of the agreement executed by and between the parties?

3. Whether plaintiff proves that defendants failed to fulfil the condition of the agreement of sale hence plaintiff issued notice dated 21/10/2004 and 26/10/2004 for specific performance of contract defendants failed to comply the notice?

4. Whether plaintiff proves that, the defendants are trying to sale or alienate suit property in any form to third parties?

5. Whether defendants prove that their bank debt has increased and to get the undue advantage of their weak economic condition under the guise of providing monetary assistance by tempting and under duress plaintiffs got the writings executed?

6. Whether defendants prove that there has been no contract of sale between the plaintiffs and defendants or have not sold the suit land under contract of sale to the plaintiffs?

7. Whether defendants proves that they have taken loan from the plaintiffs to pay bank dues and major portion of loan taken from the plaintiffs have been remitted to the plaintiffs?

8. Whether defendants proves that they are in possession of suit land?

9. Whether plai