Back
IN THE HIGH COURT OF ALLAHABAD
Deoki Nandan, J.
HAR PRATAP SINGH - Appellant
Versus
SATYA NARAIN MISRA - Respondents
Second Appeal 1809 Of 1969
Decided On : 09/13/1979
SPECIFIC PERFORMANCE - Contract - Suit for - Maintainability - Plaintiff's incapacity to perform essential term of contract - Effect - Specific Relief Act, 1963, Section 16(c).
Fact of the Case:
Plaintiffs, members of a joint Hindu family, filed a suit for specific performance of an agreement dated 8th December, 1952, for reconveyance of a house on payment of such sum as the court may determine. The trial court decreed the suit against the first defendant, directing him to execute and get registered a sale deed of the property in suit in favor of the plaintiffs and defendants Nos. 3 to 13, on payment of Rs. 1324/- by the plaintiffs to him at the time of the execution and registration of the sale deed. The first defendant appealed to the district court, which partly allowed the appeal and modified the decree of the trial court by ordering that the plaintiff-respondents shall pay the sum of Rs. 5,484/- instead of Rs. 1324/- to the defendant-appellant No. 1 at the time of the execution and registration of the sale deed by him. The first two defendants appealed to the High Court from that decree.
Finding of the Court:
The High Court held that the suit was liable to be dismissed on the ground that the plaintiffs had failed to aver and prove that they had performed or had always been ready and willing to perform the essential terms of the contract which were to be performed by them, as required under Section 16(c) of the Specific Relief Act, 1963. The Court found that the plaintiffs had no means to pay the sale consideration, and that their offer to pay the amount determined by the Court to be payable by them did not satisfy the requirements of Section 16(c) of the Specific Relief Act. The Court also held that the suit was barred by limitation, as there was a Karta in management of the joint family property at the relevant time when discharge could have been given without the concurrence of the plaintiffs, and that the time started running, when it did against all the members of the joint family, including the plaintiff and the Karta of the joint family namely, Mahabir Prasad, who could have given a valid discharge without the concurrence of the plaintiffs.
Issues: 1. Whether the plaintiffs had performed or had always been ready and willing to perform the essential terms of the contract which were to be performed by them? 2. Whether the suit was barred by limitation?
Ratio Decidendi: 1. Section 16(c) of the Specific Relief Act, 1963 requires that a plaintiff seeking specific performance of a contract must aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him. 2. The readiness and willingness to perform the essential term of a contract to be performed by him, and which is required to be averred and proved under Clause (c) of Section 16, has to be a real readiness and willingness, backed by the capacity to do so. 3. A person who is incapable of performing the essential term of a contract to be performed by him cannot be said to be ready or willing to perform it howsoever much he may say that he is ready and willing to perform it. 4. The provisions of Section 7 of the Limitation Act, 1963 are not limited to suits or decrees on monetary claims only. The word "discharge" used therein means to free from liability, and can refer to liabilities in respect of monetary claims, possession of property, taking some order as regards property, or many other matters. 5. Where a person capable of giving a discharge of the liability in question without the concurrence of the minor or the person under disability is there, i.e., in existence, time will run against all the joint owners, which means that if a suit is not filed within limitation, time will run out and a subsequent suit by a joint owner who is a minor or a person under disability will also be barred.
Final Decision: The appeal was allowed, the judgments and decrees of the two Courts below were set aside, and the plaintiffs' suit was dismissed with costs throughout.
( 1 ) THIS is a defendants second appeal in a suit for specific performance of a contract dated 8th dec. 1952, for reconveyance of a house on payment of such sum as the court may determine.
( 2 ) THE trial court decreed the suit against the first defendant Har Pratap Singh, the first appellant in this court, directing him to execute and get registered a sale-deed of the property in suit in favour of the plaintiffs and defendants Nos. 3 to 13, on payment of Rs. 1324/- by the plaintiffs to him at the time of the execution and the registration of the sale-deed, the expenses thereof being borne by the plaintiffs. The plaintiffs were also awarded the costs incurred by them against the first defendant who was directed to bear his own costs. The first defendant was further directed to pay the amount of court-fees payable on the plaint, for the plaintiffs had been permitted to sue in forma pauperis. No time was fixed for payment of the amount of Rs. 1324/- by the plaintiffs or for the execution of the sale-deed. It was ordered that if the defendant No. 1 failed to execute and register the sale-deed, the decree will be carried into effect by the court. The copy of the decree was ordered to be forwarded to the Collector, Allahabad, under Order 33, Rules 10 and 14, of the code of Civil Procedure. The first defendant Har Pratap Singh and the second defendant Girdhar singh appealed to the district court. The appeal was partly allowed and the decree of the trial court was modified by ordering that the plaintiff-respondents shall pay the sum of Rs. 5,484/instead of Rs. 1324/- to the defendant-appellant No. 1 at the time of the execution and registration of the sale-deed by him; and that plaintiff-respondents shall be entitled to 3/4th of the court-fees payable in the trial court, the remaining amount being made payable by the plaintiffs.
( 3 ) THE first two defendants have appealed to this court from that decree, and have prayed that the suit may be dismissed with costs throughout.
( 4 ) ACCORDING to the plaint, the first plaintiff was born on 10th April 1948, according to the birth register but in his school, the date of birth was recorded as 13th March, 1949. His age was about 19 years when the suit was instituted by presentation of the application for leave to sue in forma pauperis on the 10th August, 1967. The date of birth of the second plaintiff was 10th October, 1949, according to the birth register but it was entered as 1st July, 1951, in his school, His age was thus less than 18 years and he, accordingly, sued through the first plaintiff as his next friend. The first plaintiff is the uncle of the second plaintiff, who is the son of Gaya Frasad, first plaintiffs elder brother. The first plaintiff Satya Narain was the youngest among seven brothers. Their father Mahavir Prasad is the third defendant. The eldest among the seven sons of Mahavir prasad, Sukhdeo Prasad was impleaded as defendant No. 4, and the others, impleaded in order of their age, were Gaya Prasad as defendant No. 5, Hira Lal as defendant No. 6, Jawahar Lal as defendant No. 7, Nand Lal as defendant No. 8 and Gopal Lal alias Jhabhu Lal as defendant No. 9 narbada Prasad son of Sukhdeo Prasad was impleaded as defendant No. 10, Gaya Prasads first son Kallu alias Gopal Das being the second plaintiff, his second son Sudama, then a minor aged about eight years, was impleaded as defendant No. 11; Jawahar Lals minor son Bhola, then aged about six years, was impleaded as defendant No. 12, and Nand Lals minor son Bablu, then aged about five years, was impleaded as defendant No. 13.
( 5 ) THE following was the plaintiffs case; Charan was the father of Mahavir Prasad, the defendant no. 3. The house, for the reconveyance of which the suit was filed, was the Hindu Joint family property of Kali Charan and Mahavir Prasad, and on the death of Kali Charan, it descended to mahavir Prasad who became Karta of the Hindu Joint Family which included the plaintiffs. On 22nd June
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
