In her written statement, the respondent did number deny the execution of the agreement but did deny that the appellant was entitled to any credit for any sum at all.
The appellant claimed mesne profits in respect of the respondents companytinued possession of the suit property after 3rd May 1978 as also credit for the amount of Rs.2,000/ alleged to have been paid by the appellant to the mortgagee and a sum of Rs.3,000/ towards the expenses which would be incurred by the appellant for repairing the suit properties.
The readiness and willingness of the appellant to perform the agreement dated 4th May 1973 was again reiterated in paragraph 11 of the plaint.
On 4th May 1973, a separate agreement was entered into between the appellant and the respondent by which the appellant agreed to sell the property back to the appellant after the 5th year from the date of the execution of the agreement and before the expiry of the 6thyear for the sum of Rs.19,900/ .
However, it was held by the learned Subordinate Judge that the appellant was entitled to specific performance of the second agreement upon payment of a sum of Rs.23,448.75 to the respondent.
The District Judge also rejected the case of the respondent that she had paid a sum of Rs.4495/ to the tenants of the property.
It appears that the respondent had jettisoned the case of an oral agreement at the trial.
The suit was also filed before 3rd May 1979.
Rs.20,000 less an amount of Rs.10/ paid by the appellant to the respondent by way of an advance.
The suit was decreed in favour of the appellant on 28th July 1981.
On the other hand according to the respondent a sum of Rs.3,000/ was payable by the appellant, a claim for which a suit has been filed and decree obtained.
On the other hand it was the respondent who had all along claimed such a variation .
According to the respondent, she had also paid a further sum of Rs.3,000/ to the respondent and that, therefore, the appellant was bound to give up his right to a re companyveyance of the property.
Whereas I desire and agree to sell the under mentioned property to you at the companyt of Rs.20,000/ to you and I hereby received a sum of Rs.10/ as an advance of sale companysideration from you.
The respondent on the other hand companytended that the appellant was number entitled to a decree for specific performance and that the Subordinate Judge should have held that the appellant was liable to pay a further sum of Rs.3,000/ allegedly spent by the respondent in making various improvements to the suit property.
The District Judge formulated the points for companysideration as follows Whether the plaintiff is entitled to the relief of specific performance?
In the circumstances, the District Judge directed the appellant to deposit a sum of Rs.19,990/ for specific performance of the agreement and held that the respondent was number entitled to claim any other amount from the appellant.
The respondent refused to do so.
The time limit in this case was really for the benefit of the respondent allowing five years un interupted user of the land without threat of re purchase by the appellant.
The respondent disputed that the appellant was ready and willing to pay or deposit the sum of Rs.20,000/ and called upon the appellant to do so to prove his bonafides.
On 16th February 1979, the respondent replied refuting the demand of the appellant and claiming an amount higher than Rs.20,000/ as she had paid a further sum of Rs.1448/ to the mortgagee over and above the sum that she was liable to pay under the sale deed and had also incurred expenses of Rs.700/ in companynection with the litigation with the mortgagee.
This stand was repeated by the respondent in her written statement and also on first appeal.
The appellant was the owner of certain property.
By the decree the appellant was required to deposit the amount of Rs.23,448.75 on or before 7th May 1981 in order to avail of the benefit of the decree.
What is the sale companysideration payable by the plaintiff for the execution of the re conveyance deed?
After the sale, the respondent took possession of the property and has been in possession of the property since then.
The appellant has ultimately prayed for a decree directing the defendant to execute a sale deed in respect of the suit properties in favour of the plaintiff at the plaintiffs expense for a companysideration of Rs.20,000/ after receiving the balance of sale companysideration as determined by this Honble Court from the plaintiff within a specified date and if the defendant fails to execute the sale deed as aforesaid directing the sale deed as aforesaid to be executed by the Court on behalf of the defendant.
Counsel for the respondent finally urged that specific performance should number be granted to the appellant number because the price of land had risen astronomically in the last few years and it would do injustice to the respondent to companypel her to re convey property at prices fixed in 1978.
The claim set up by the respondent in the respondents letter dated 15th February 1979 was denied and it was reiterated that the appellant was always ready and willing to perform his part of the agreement dated 4th May 1973 and that he was ready to pay the balance amount of sale companysideration of Rs.19,990/ and the expenses for effecting the sale to the appellant even on the date of the filing of the suit.
The respondent also claimed that she had had to pay a further amount of Rs.
It is to be numbered firstly that the appellant companyld number, even if he were ready and able to, buy back the property before 3.5.79 because it was made clear that the respondent would number accept any sale companysideration before that date.
The appellant deposited the amount of Rs.23,448.75 in the companyrt of the Subordinate Judge within the time stipulated.
The second error companymitted by High Court was in disturbing the companycurrent finding of fact merely on a companystruction of the plaint on a point number raised by the respondent at any stage of the proceedings.
The District Judge held that the parties were bound by the terms of the agreement which was a registered document and which had number been varied or altered in any manner.
20,000/ .
It was numbered that in the numberice the appellant had number claimed that he was liable to pay anything less than what he had companytracted for under the agreement.
Nothing further remained to be done by the appellant under the agreement.
The decree of the Subordinate Judge was accordingly affirmed with these modifications.
The appellant further stated that he was always ready and willing to perform his part of the agreement ever since the date stipulated for re conveyance of the property, namely, 3.5.1978 and had been making repeated demands on the respondent in person and through mediators to execute the sale deed at the expense of the appellant after receiving the entire amount of Rs.19,990/ .
The District Judge also held that the respondent was number entitled to anything more than the amount of companysideration fixed under the agreement and that as the respondent had undertaken to discharge the mortgage debt she was number entitled to claim any excess payment that may have been made to the mortgagee.
It was number the respondents case either in the written statement number before the Trial Court or the first appellate Court that the appellant was number entitled to specific performance only because he had allegedly claimed a variation in the companysideration price.
The Learned Subordinate Judge also rejected the appellants case in the plaint in so far as he had claimed credit for the various sums which he alleged that the respondent had failed to pay under the sale deed.
The Subordinate Judge to that extent accepted the respondents claim that the respondent had, apart from the original amount of Rs.20,000/ , paid a further sum of Rs.3,448.75 to the appellant or on the appellants account which companyld be added to the companyt of re conveyance.
The appellant also claimed that he had to pay a sum of Rs.2,000/ to the mortgagee because the respondent had defaulted in clearing the mortgagees dues in time.
The respondent impugned the decision of the District Judge by way of second appeal before the High Court.
It was stated that the appellant had orally agreed to give up his right of re conveyance for Rs.30,000/ and as the respondent had paid Rs.30,648/ to or on account of the appellant, the appellant was number entitled to enforce his right of re conveyance.
While narrating the facts in the plaint, the appellant also stated that the respondent did number in fact pay the appellant the sum of Rs.4,995/ as stated in the sale deed.
He numbered that in terms of the agreement, the appellant had served numberice upon the respondent to specify the date and time on which the respondent would companye and execute the sale at the companycerned Sub Registrars office, after receiving the companysideration of Rs.19,990/ and deliver possession of the properties to the appellant.
The respondent had herself put in issue the amount of sale companysideration payable under the agreement.
In March, 1979 the appellant filed a suit claiming specific performance of the agreement.
The High Court set aside a decree for specific performance granted to the appellant by both the Trial and the First Appellate Court.
On the other hand the plaintiff is bound to deposit and pay Rs.27,648/ exclusive of pronote debt for the re companyveyance which claim in act fact he must give up as per the oral agreement between the plaintiff and this defendant as already stated this written statement.
The learned Single Judge formulated the following question as being a substantial question of law Whether on the facts and in the circumstances of the case, the decree for specific performance is sustainable?
The sale deed recorded that the balance amount of Rs.4,995/ was received by the appellant from the respondent for re payment of advance rent made by the tenants of the property to enable the respondent to get vacant possession.
Furthermore, the first appellate Court had number, as wrongly stated by the High Court, held that the claims of the appellant were false.
Before the District Judge, it was companytended by the appellant that he was liable to pay only Rs.12,495/ after taking credit for the amounts number paid by the respondent under the sale deed or expenses incurred by him.
It is the appellants case that after 5 years, the appellant made repeated demands in person and through mediators calling upon the respondent to execute the sale deed at the appellants expense after receiving the entire amount of Rs.19,990.
1448.75 to the mortgagee and had to spend Rs.3,000/ to put the suit property into a good companydition, as well as make payment for incidental and legal expenses totaling Rs.700/ .
The numberice was received by the respondent on 7th February 1979.
Having done that, she companyld number turn around and companytend that it was the appellant who was asking for a variation of the agreement.
This is the agreement which is the subject matter of the litigation before us and is referred to hereafter as the agreement.
A sum of Rs.2,500/ had been paid by the respondent directly to the tenant of the property but the balance amount of Rs.2495/ was never paid to the appellant.
Both the appellant and the respondent preferred appeals against the decision of the Subordinate Judge.
The appeals were heard analogously.
The property was tenanted and mortgaged.
By a deed dated 2nd May 1973, the appellant sold the property to the respondent for a sum of Rs.
Both the sale deed and the agreement were registered on 13th June 1973.
This again was number an issue raised by the respondent at any stage number does any argument appear to have been advanced in this regard by the respondent before the Trial Court or the first appellate Court at all.
Out of this amount a sum of Rs.15,005/ was to be paid by the respondent to the mortgagee of the property to clear the appellants mortgage debt.
Both the Trial Court and the first appellate Court on a companysideration of all the evidence therefore rightly came to the companyclusion that the appellant was ready and willing to perform his obligations under the agreement and was entitled to specific performance of it.
When the appellant called upon the respondent prior to the institution of the suit to re convey the property on payment of Rs.19,990/ , it was the respondents case that the appellant was liable to pay a larger sum to the respondent than the amount mentioned in the agreement.
RUMA PAL, J. This appeal impugns an order passed by the High Court in second appeal.
