Bombay High CourtPrakash Ramkrishna Khadse vs Manikrao Ramaji Sonwane on 22 September, 2009Author:C.  L.  PangarkarBench:C.  L.  Pangarkar1

      IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR 
                        BENCH NAGPUR.




                                                                               
               FIRST   APPEAL   NOS.   690    &     732     OF   2007




                                                       
                     FIRST  APPEAL   NO.  690  OF 2007




                                                      
                                                                          
    1.Prakash Ramkrishna Khadse,
    aged Adult, Occu. Agriculturist.




                                           
    2. Vilas Ramkrishna Khadse
    aged Adult, occu. Agriculturist.
                             
    3. Smt. Shakuntala wd/o Ramkrishna 
    Khadse, aged Adult. Occu. Household,
                            
    All residents of Post Varora,
    Tah. & Distt. Nagpur.                                 APPELLANTS.
           


                                    VERSUS
        



    1. Manikrao Ramaji Sonwane,
    Prop. Shri Kripa Housing Agency,





    aged 46 yrs. Occu. Business,
    R/o indira Nagar, Jattarodi,
    Nagpur. 

    2. Anil Gulabrao Kantode,





    aged 32 yrs. Occu. Not known,
    R/o Chatrapati Nagar, Nagpur. 

    3. Balabhau Ambadas Khule,
    aged 32 yrs. Occu. Not known,
    R/o 226, Vijaya Bhawan, W.H.C. 




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                                          2

    Road, Nagpur. 




                                                                          
    4. Manisha w/o Moreshwar 
    Ambhorkar, aged 40 yrs., 




                                                  
    Occu. Not known.

    5. Moreshwar Vithalrao Ambhorkar,
    Aged 46 yrs. Occu. Not known




                                                 
    Both residents of Shantinagar 
    Nagpur.                                          RESPONDENTS. 




                                            
                        FIRST  APPEAL  NO.  732  OF  2007.
                             
    1. Manisha w/o Moreshwar Ambhorkar,
    aged 45 yrs.  Occu. Household. 
                            
    2. Moreshwar Vitthalrao Ambhorkar,
    aged 51 yrs. Occu. Service. 
           


    Both R/o 65, Central Excise Colony, 
    Telecom Nagar, Khamla Nagpur.
        



                                     VERSUS





    1. Manikrao Ramaji Sonwane
    aged 50 yrs., Occu. Business, 
    Proprietor Sai Kripa Housing
    Agency, R/o Indira Nagar,





    Jat Tarodi, Nagpur. 

    2. Prakash Ramkrishna Khadse,
    aged 28 yrs., Occu. Agriculturist.




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    3. Vilas Ramkrishna Khadse,
    aged 23 yrs., Occu. Agriculturist.




                                                                                     
    4. Smt. Shakuntala wd/o Ramkrishna 




                                                            
    Khadse, aged Adult. Occu. Household,

    Nos. 2, 3 and 4 R/o Warora,
    Tah. & Distt. Nagpur. 




                                                           
    5. Anil Gulabrao Kantode,
    aged 38 yrs. Occu. Not known,
    R/o Chatrapati Nagar, Nagpur. 




                                                
    6. Balabhau Ambadas Khule,
    aged 36 yrs. Occu. Not known,ig
    R/o 226, Vijaya Bhawan, W.H.C. 
    Road, Nagpur.
                               
    F. A. No. 690 of 2007:
    Shri S. R. Deshpande, Counsel for appellant.
    S/Shri   S.   P.   Dharmadhikari,   Senior   Counsel   with   S.   S.   Sanyal 
    Counsel for Respondent 1. 
           


    Shri. M.  G.  Bhangde,  Senior  Counsel with Shri D. N. Dani Counsel 
    for Respondents-4 & 5.
        



    Shri L. Meshram Counsel for R-2 & 3.

    F. A. No. 732 of 2007:
    Shri M. G. Bhangde Senior Counsel with Shri D. N. Dani Counsel for 





    appellant.
    Shri   S.   p.   Dharmadhikari   Senior   Counsel   with   Shri   S.   S.   Sanyal 
    Counsel for Respondent 1. 
    Shri S. R. Deshpande Counsel for Respondents 2 to 4. 
        





                        CORAM:   C.  L.  PANGARKAR  J. 
                        Date:      22nd    SEPTEMBER   2009.




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    ORAL JUDGMENT:These   two   appeals   can   be   disposed   of   by   common 

    judgment since they arise out of judgment in Special Civil Suit No. 




                                                          
    857 of 2002.  Appeal No. 732 of 2007 has been preferred by original 

    defendants 6 and 7 while Appeal no. 690 of 2007 has been preferred 

    by original defendants No. 1 to 3.   Respondent No.1 is the original 




                                               
    plaintiff.   The parties shall hereinafter be referred to as plaintiff and 
                                
    defendants.2.         Defendants No. 1 to 3 are the owners of Survey No. 91 of 
           


    village Warora District Nagpur.  The defendants 1 to 3 entered into 
        



    an agreement of sale of 2.80 hectares i. e. 7 acres of land with the 

    plaintiff.  Price of the said land was settled at Rs. 1,37,500/- per acre.Thus the plaintiff was to pay total consideration of Rs. 9,62,500/- .One of the conditions of the agreement of sale was that the plaintiff-purchaser would pay Rs. 3,00,000/- to the defendants 1 to 3 upon 





    which the defendants would execute the sale deed in respect of 2 

    acres  of  land.    At the  time  of  execution   of  the  agreement   of   sale::: Downloaded on - 09/06/2013 15:06:27 :::5plaintiff   paid   Rs.   75,000/-   in   cash   to   the   defendants   1   to   4.Defendant No.1 had obtained a loan for purchase of a vehicle from 




                                                                  
    one Finance Company.  It was agreed that the plaintiff would repay 

    the   loan   of   Rs.   1,50,000/-   due   to   the   said   finance   company.Accordingly plaintiff had issued three cheques of Rs. 50,000/- each.It is the contention of the plaintiff that he paid Rs. 3,00,000/- total to 

    the defendants 1 to 3.  Inspite of that,  it is alleged,  that defendants 




                                                    
    1 to 3 failed   to execute the sale deed.   It was also agreed that the 
                                   
    total land would be sold on or before 17.1.2002.  It is the contention 
                                  
    of   the   plaintiff   that   without   giving   any   notice   to   the   plaintiff   the 

    defendants 1 to 3 executed a sale deed in respect of 5 acres of land 
            


    in   favour   of   defendants   4   and   5   by   registered   sale   deed   dated 
         



    13.07.2001.   Plaintiff submits that this was a clear act of cheating.The plaintiff published a notice in the daily newspaper informing 





    the public not to purchase the said property.  A notice was also sent 

    to defendants 1 to 3.  Defendants 4 and 5 later sold the same piece 

    of   land   to   defendants   6   and   7   by   a   sale   deed   dated   07.02.2002.Plaintiff submits that the plaintiff was ready and willing to execute 

    the   sale   deed(?).     Plaintiff   therefore   instituted   a   suit   for   specific::: Downloaded on - 09/06/2013 15:06:27 :::6performance of contract and for setting aside the sale in favour of 




                                                                                          
    defendants 4 to 7.3.           Defendants 1 to 3 filed their separate Written Statement at 




                                                                 
    Ex. 23.   Defendants do not dispute that defendants 1 to 3 are the 

    owners of the suit property.  They also do not dispute that they had 

    agreed to sale 7 acres of  land to the plaintiff for consideration of Rs.2,62,500/-   .     They   also   do   not   dispute   that   upon   payment   of   Rs.3,00,000/-   to   them   they   were   to   execute   initially   a   sale   deed   in 
                                  
    respect   of   2   acres   of   land.     Further   they   do   not   dispute   that   the 

    entire   land   was   to   be   sold   on   or   before   17.11.2002.     Defendants 
            


    submit that it was the plaintiff who was unwilling to perform his 
         



    part   of   contract   and   at   his   request   the   land   was   sold   by   the 

    defendants 1 to 3 to defendants 4 and 5.  It is also the contention of 





    the   defendants   that   plaintiff   failed   to   execute   the   sale   deed   in 

    respect of 2 acres of land.  Their specific contention is that they did 

    not receive a sum of Rs. 3,00,000/- which was a condition precedent 





    for execution of sale deed in respect of 2 acres of land.   They also 

    submit   that   they   had   called     upon   the   plaintiff   to   produce   the::: Downloaded on - 09/06/2013 15:06:27 :::7evidence in respect of  payment of money to defendants 1 to 3 and 




                                                                                        
    they had even signed the sale deed to be executed in favour of the 




                                                                
    plaintiff.     They   submit   that   the   sale   deed   was   not   registered   in 

    respect of two acres of land because of the fact that plaintiff though 




                                                               
    agreed to produce the receipts of the payments to the defendants 

    failed to do so.  The defendants submit that plaintiff had in fact paid 

    Rs.   1,02,992/-.     The   cheques   issued   by   the   plaintiffs   in   favour   of 




                                                  
    Finance   Company   were   never   encashed.     The   defendants   finally 
                                  
    submit that since plaintiff f's financial condition was not proper and 
                                 
    therefore he had asked defendants to execute sale deed in favour of 

    defendants   4   and   5   and   plaintiff   was   never   ready   and   willing   to 
            


    perform his part of the contract.4.          Defendants   4   and   5   have   filed   their   separate   Written 





    Statement and have raised a preliminary objection.   According to 

    defendants   the   agreement   that   was   entered   into   was   for   and   on 

    behalf   of   Sai   Kripa   Housing   Agency   which   appears   to   be   a 





    partnership   firm.     They   submit   that   agreement   would   show   that 

    present plaintiff  Manikrao represents the said firm as partner.  They::: Downloaded on - 09/06/2013 15:06:27 :::8also submit that the suit has been filed in an individual name of 




                                                                                     
    Manikrao and therefore suit itself is not maintainable.  Defendants 




                                                            
    4 and 5 contend that they are not aware of the terms of contract 

    between plaintiff and defendants 1 to 3.  They contend that plaintiff 




                                                           
    was knowing  the defendants 4 and 5.  He introduced defendants 4 

    and 5 to the defendants 1 to 3 and with a proposal that sale deed 

    should be executed by defendants 1 to 3 in favour of defendants 4 




                                                
    and 5.  They contend that accordingly the sale deed is executed and 
                                
    plaintiff therefore has filed this suit mischievously.5.         Defendants 6 and 7 have also filed their separate Written 
           


    Statement.   These defendants also feign ignorance with regard  to 
        



    the   terms   and   conditions   of   agreement   between     plaintiff   and 

    defendants  1 to  3.    They submit that  they  do not know anything 





    about the transaction.   Defendants submit that they had agreed to 

    purchase  the land from defendants 4 and 5 and had published a 

    notice in the Lokmat Newspaper on 29.12.2001 informing public at 





    large  about their intended purchase.  Inspite of said publication of 

    public   notice   nobody   raised   an   objection   and   the   sale   deed   was::: Downloaded on - 09/06/2013 15:06:27 :::9registered on 07.02.2002.  They submit that more than one month's 




                                                                                       
    time was available for plaintiff to make a grievance but he did not 




                                                               
    do anything in the matter.   They submit that they have therefore 

    purchased   the   property   bonafide   and   silence   on   the   part   of   the 




                                                              
    plaintiff clearly indicates that he had no objection.6.          On these pleadings of the parties the learned Judge of the 




                                                  
    trial   Court   framed   issued.     He   found   that   defendants   1   to   3   had 
                                  
    entered into an agreement of sale and plaintiff had infact paid Rs.3,00,000/-   to  the   defendants.         He  also  found  that   plaintiff  was 

    ready and willing to perform his part of the contract.  Holding so he 
            


    set aside the sale deed executed in favour of defendants 4 and 5 and 
         



    6 and 7 and held that plaintiff was entitled to decree for specific 

    performance.  Being aggrieved  by that these two appeals have  been 





    preferred.7.          I   have   heard   the   learned   counsel   for   appellant   and   the 





    respondents.   The following points arise for   my consideration on 

    their submissions and I am recording my findings on them:::: Downloaded on - 09/06/2013 15:06:27 :::10POINTS:-1.Whether suit is brought in wrong name and by a person 
               having   no   privity   of   contract   with   defendants   1   to  
               3?                                             .....Yes.2. Whether the contract was void because the property of 
               minor was sought to be sold without the permission of the 
               District Judge?                       .......No.3.Whether the plaintiff was ready and willing to perform 
                               
               his part of contract with regard to 2 acres of land as well as 
               remaining land of 5 acres?                ........No.8.         Point No. 1:  The description of the plaintiff in the cause 
           


    title of plaint is as follows:Shri Manikrao s/o Ramaji Sonwane,

               Proprietor Sai Kripa Housing Agency,





               aged about 46 years, Occupation: Business,

               R/o Indira Nagar, Jat Tarodi, Nagpur.From  this  cause   title it appears  that  the plaintiff  claims 

    that Sai Kripa Housing Agency is a proprietory concern.  There is no::: Downloaded on - 09/06/2013 15:06:27 :::11doubt that   the   proprietor   of  the  business  concern   can   sue in  his 




                                                                                          
    own name.   However, in this case defendants 4 and 5 submit that 




                                                                  
    the agreement was with partnership firm and the suit is not brought 

    in the name of partnership firm and therefore the suit is bad.  This 




                                                                 
    was the preliminary objection in the Written Statement.  It would be 

    necessary   to   look   into   the   agreement   of   sale   Ex.   35.     In   the   said 

    agreement   the   vendee   is   described   as   Sai   Kripa   Housing   Agency 




                                                    
    through   partner   Manikrao   Ramaji   Sonwane.     The   agreement 
                                   
    therefore makes it clear that the agreement was entered into by a 
                                  
    partnership firm through Manikrao as a partner.  Specifically word 

    partner   is   used   and   the   vendee   is   shown   as   Sai   Kripa   Housing 
            


    Agency.  The description is clear and unambiguous.  In the context 
         



    oral evidence of the plaintiff   has to be looked into.   In the cross 

    examination   for   defendants   4   and   5   P.   W.   1   Manikrao   states   as 





    follows.  I quote his admission in his own words:"Saikripa Housing Agency which is 





                   the partnership firm is registered consisting 
                   of two partners namely myself and my wife. 
                   Shakuntalabai.  It is true that agreement was 
                   enter   into   in   the   name   of   said   Saikripa 
                   Housing Agency a partnership firm.  It is true::: Downloaded on - 09/06/2013 15:06:27 :::12that   this   agreement   is   not   entered   into   in 
               personal   name.     It   is   true   that   I   have   not 




                                                                                       
               entered   into   said   agreement   as   the 
               proprietor of the   Saikripa Housing Agency.It   is   true   that   this   suit   is   not   brought   by 
               partnership firm.It is true that in my plaint and in 




                                                              
               my   affidavit   I   have   not   whispered   about 
               Saikripa   Housing   Agency   a   partnership. 
               Witness volunteer that he filed this suit in his 
               personal capacity.   It is true that I have not 
               mention   about   relation   between   Saikripa 




                                                 
               Housing   Agency   a   partnership   firm   and 
               proprietory concerned.   I cannot assign any 
                                
               reason as to why I have not whispered about 
               said relation."Now with this admission it is clear that there is a partnership firm of 
           


    P. W. 1 Manikrao of which he and his wife are partners.  He admits 
        



    that the agreement was between partnership firm and he had not 

    entered into an agreement as a proprietor.   The suit is admittedly 





    brought in individual name and not in the name of the partnership 

    firm at all.  Now if the agreement was with partnership firm and the 

    suit is brought in personal capacity, it is a suit brought in the name 





    of wrong plaintiff and by a person having no privity of contract.::: Downloaded on - 09/06/2013 15:06:27 :::139.           Shri   Dharmadhikari   learned   Senior   Counsel   for   the 




                                                                                          
    respondent   No.1   submits   that   it   is   not   a   partnership   firm   and   a 




                                                                  
    layman does not understand the intricacies of law.  He brings to my 

    notice the part of the cross examination by defendants 4 and 5.  He 




                                                                 
    submits that plaintiff specifically says, he is a proprietor and even 

    gives   the   name   of   the   concern   and   its   registration   number.     No 

    doubt witness P. W. 1 Manikrao says he is a proprietor and gives out 




                                                    
    the   registration   number.     Though   he   says   in   the   first   part   of   his 
                                   
    evidence that he is a proprietor in later part which is quoted above, 
                                  
    he admits that agreement was entered into in the name of Saikripa 

    Agency-a partnership firm and suit is brought in personal capacity.The inference that can be drawn from this, is that the plaintiff may 
         



    be   carrying   out   business   in   two   different   capacities   and   names.That   appears   to   be   a   fact   since   P.   W.   1   admits   that   he   has   not 





    pleaded   in   the   plaint   about   relation   between       Saikripa   Housing 

    Agency a partnership firm and the proprietory concern.   The fact 

    however   remains   and   is   clear   from   evidence   that   agreement   was 





    with partnership firm  but suit is brought by individual.  The learned 

    Judge of trial Court seems to have dealt with the question in a very::: Downloaded on - 09/06/2013 15:06:27 :::14slipshod manner.   He no doubt accepts   that plaintiff entered into 




                                                                                          
    an agreement as partner and suit is filed as a proprietor.   He says 




                                                                  
    that on this technical ground relief cannot be refused to plaintiff.Indeed the concept in the mind of the learned Judge appears to be 




                                                                 
    strange.     Suit   itself   is   brought     by   a  person   not   having   privity   of 

    contract who cannot enforce it at all.   The suit was therefore bad 

    and was liable to be dismissed on this count alone.10.
                                   
                 Point   No.   2:   Learned   counsel   for   the 
                                  
    appellant/defendants   contend   that   there   is   no   averment   in   the 

    plaint that the contract was entered into by defendants 1 and 2 for 
            


    the benefit of minor defendant No.3 or that it will so benefit the 
         



    minor.  He submits that a guardian has no right to sell the property 

    of minor without obtaining permission  of the District   Judge and 





    admittedly in this case the permission is not obtained.  Vendor No.2 

    was   definitely   a   minor   and     is   represented   by   natural   guardian 

    mother.  The argument will have to be appreciated bearing in mind 





    the provisions ofHindu Minority  And Guardianship Actas well asGuardian   and   Wards   Act.     The   suit   property   is   admittedly   the::: Downloaded on - 09/06/2013 15:06:27 :::15ancestral property of defendants 1 to 3 i. e. vendors of the plaintiff.Section 6of the Hindu Minority And Guardianship Act says that in 




                                                               
    the absence  of the father   the minor shall be the guardian  of the 

    person and property of the minor excluding his undivided share in 




                                                              
    the   joint   family   property.Section   8speaks   of   powers   of   natural 

    guardian in respect of separate property of the minor.Section 8has 

    no application to cases where the minor has an interest in Hindu 




                                                  
    undivided family.   Supreme Court in a decision  reported  inSri 
                                  
    Narayan Bal And Others   Vs.   Sridhar Sutar And   Others(1996) 8 
                                 
    Supreme Court Cases 54 has held as follows:"In   the   instant   case   the   finding 
                  recorded   by   the   Courts   below   is   that   Jag 
         



                  Bandhu,   the   eldest   male   member   in   the 
                  family acted as a Karta in executing the sale 
                  and had joined with him the two widows for 
                  themselves   and   as   guardians   of   the   minor 





                  members of joint Hindu family, as supporting 
                  executants.  That act by itself is not indicative 
                  of the minors having a divided interest in the 
                  joint   Hindu   family   property     commencing 
                  before or at the time of the sale.  In this view 





                  of the matter,Section 8of the Act can be of 
                  no avail to the appellant's claim to nullify the 
                  sale."::: Downloaded on - 09/06/2013 15:06:27 :::1611.        It is   thus  clear   that  the  permission   of  the  Court    underSection 8of the Hindu Minority and Guardianship Act read with the 




                                                            
    provisions   ofGuardian   and   Wards   Actwould   not   be   necessary 

    where an interest in the joint family is sought to be disposed of.  In 




                                                           
    the   instant   case   the   elder   brother   and   mother   have   joined   the 

    execution of the agreement who is the Karta of the joint family.  Shri 

    Bhangde  Senior Counsel for the appellant contends that the power 




                                               
    of the guardian is limited and they can function with in the doctrine 
                                
    of legal necessity or benefit.  He relied on a decision of this Court in 
                               
    Popat Namdeo Sodanvor minor by his guardian mother Sundarabai  

    Vs.   Jagu Pandu Govekar   AIR   1969 Bombay 140,  the High Court 
            


    observed as follows:"19.         I   now   turn   to   the   Full 
                 Bench   decision   in   AIR   1956   Andh   33   (FB) 
                 referred to above.  In that case, there was one 
                 contract   entered   into   by   a   guardian   of   a 





                 Hindu   minor   which   embodied   both   an 
                 agreement to sell the minor's property and to 
                 purchase   it   after   the   minor   had   attained 
                 majority.  The other parties to the agreement 
                 brought a suit for the specific performance of 





                 this contract as in the meantime the guardian 
                 had sold the property to somebody else sub 
                 sequent   to   the   above   agreement.     So   the 
                 question   arose   whether   a   contract   entered 
                 into by a guardian of a Hindu minor for sale::: Downloaded on - 09/06/2013 15:06:27 :::17or for purchase of immoveable property was 
     specifically   enforceable   against   the   minor, 




                                                                           
     and,   that   question   was   referred   to   the   Full 
     Bench   in   view   of   the   observations   made   by 




                                                   
     Vishwanath   Sastri   J.   in   AIR   1951   Mad   431 
     already referred to.   The opinion of the Full 
     Bench   was   delivered   by   the   learned   Chief 
     Justice.   The whole question was reviewed in 




                                                  
     detail and they have deduced principles with 
     which,   with   great   respect,   I   find   entirely   in 
     agreement,   The principles and points made 
     out may be stated as follows:(1)   A     minor   has   no   legal 
     competency   to   enter   into   a   contract   or 
                     
     authorise an other to do so on his  behalf.  A 
     guardian,   therefore,   steps   in   to   supplement 
     the minor's defective capacity;(2) Capacity  is the creation  of law, 
     whereas  authority is derived from (nature of) 
     the act of parties;(3)   The   limit   and   extent   of   the 
   



     guardian's   capacity   (authority)   are 
     conditioned   by   Hindu   law.     They   can   only 
     function within the doctrine of legal necessity 
     or benefit.   The validity of the transaction is 





     judged   with   reference   to   the   scope   of   his 
     power to enter into a contract on behalf of the 
     minor;(4)   Even   the   personal   liability 
     arising   out   of   the   guardian's   contract   is   a 





     liability of the minor's estate only;(5)   Since   the   guardian   under   the 
     Hindu law has the legal competency to enter::: Downloaded on - 09/06/2013 15:06:27 :::18into   a   contract   on   behalf   of   the   minor   for 
     necessity or for the benefit of the estate, the 




                                                                             
     contract   is   valid   from   the   time   of   its 
     inception, and since either party can enforce 




                                                     
     and contract, the test of mutuality is satisfied;(6)   There   cannot   be   any   essential 
     distinction   between   a   contract   of   sale   and 




                                                    
     contract of purchase.   The difference is only 
     one   of   degree.     There   is   no   difference   in 
     principle between the case of purchase by a 
     guardian   and   that   of   a   case   of   a   sale   by   a 
     guardian,             because both depend for their 




                                       
     validity   on   the   competency   of   the   guardian 
     acting   within   the   scope   of   his   power   under 
                      
     Hindu law;(7)   An   agreement   to   convey   or 
                     
     purchase   is   only   a   preliminary   step   in 
     completing a transaction of sale or purchase 
     as the case may be.  Without negotiations and 
     without   any   agreement,   oral   or   in   writing, 
      


     rarely is a sale deed executed and registered.To hold that guardian can execute a sale deed 
   



     in respect of a specific property but he cannot 
     legally enter into an agreement to convey or 
     purchase   the   same   is   incongruous   and 
     illogical;(8)   Contracts   to   sell   or   purchase 
     property   are   transactions   closely   connected 
     with   dealings   in   immoveable   property   by   a 
     guardian giving rise to obligations  annexed to 





     that property.  They cannot b e equated with 
     contracts   of   loans   imposing   personal 
     obligations on the minor.(9)   The   courts   following   the::: Downloaded on - 09/06/2013 15:06:27 :::19decision   in   Mir   Sarwarjan's   case,  (1912)   ILR 
               39   Cal   232   (PC)   had   held   that   a   contract   of 




                                                                                      
               sale or purcahse entered  into by a guardian 
               on behalf  of a minor could  not be enforced 




                                                              
               against the minor on the ground of mutuality. 
               That view is no longer sound in view of the 
               later   Privy   Council   decision   in   75   Ind   App 
               115=(AIR   1948   PC   95)   which,   in   clear   and 




                                                             
               unambiguous terms, rules otherwise.20. The last conclusion seems to be 
               inevitable on the authority.   I have not been 
               referred   to   any     judgment   of   the   Supreme 




                                                
               Court or of this Court subsequent to the Privy 
               Council decision in 75 Ind App 115=(AIR 1948 
                               
               PC   95)   taking   a   contrary   view   or   even 
               doubting   it.   I would, therefore, hold that a 
               contract to purchase immoveable property by 
                              
               a   competent   guardian   acting   within   his 
               authority on behalf of a minor is specifically 
               enforceable by or against the minor."It is clear from this decision that a guardian has a power to enter 

    into a contract on behalf of a minor and it could be so enforced 





    against the minor.  It will always be for the minor to repudiate or not 

    to repudiate  on attaining  majority.    The contract is therefore not 

    void.  The point is accordingly answered.12.       Point No. 3: The facts disclose that there was a genuine::: Downloaded on - 09/06/2013 15:06:27 :::20agreement of sale.  It is the case of the plaintiff that though he had 




                                                                                         
    paid consideration of Rs. 3,00,000/- to become entitle to execution 




                                                                 
    of   sale   deed   in   his   favour   in   respect   of   two   acres   of   land   the 

    defendants   1   to   3   failed   to   execute   the   said   sale   deed.     The 




                                                                
    agreement of sale Ex. 35 is dated 17.05.2001.     The agreement is in 

    respect of sell of total 7 acres of land at the rate of Rs. 1,37,500/-per 

    acre.  It is clear from agreement that Rs. 75,000/- only were paid at 




                                                   
    the time of earnest note and it is further envisaged that the plaintiff 
                                  
    purchaser   would   pay   by   three   cheques   of   Rs.   1,50,000/-   to   the 
                                 
    financer   of   defendant   No.1   who   had   purchased   a   car   on   hire 

    purchase.  It also speaks that after total sum of Rs. 3,00,000/- is paid 
            


    the seller would execute the sale deed of 2 acres of land out of 7 
         



    acres in favour of purchaser plaintiff.   It is next   agreed that there 

    after the purchaser plaintiff would pay the amount every 3 months 





    to the seller by installments.   I now propose to deal with the first 

    part i. e. whether defendants No. 1 to 3 were  bound to execute the 

    sale deed of 2 acres   and whether Rs. 3,00,000/- were paid before 





    such claim for execution could be laid by the plaintiff.::: Downloaded on - 09/06/2013 15:06:27 :::2113.         Here two undisputed facts need to be noted.   The first is 




                                                                                            
    payment   of   Rs.   75,000/-   and   second   non   encashment   of   three 




                                                                    
    cheques worth Rs. 1,50,000/-.  I must say  that the pleadings of the 

    plaintiff   are   very   cryptic,   ambiguous   and   inconsistent.     I   would 




                                                                   
    reproduce   here   the   relevant   pleadings   in   paras   1,  2   and   3   of   the 

    plaint:"1.          "That, the defendant No. 1, 2 and 3are   the   owners   of   the   agricultural   land 
                  situated at Mouza Warora, admeasuring 6.86 
                  Hect.   R.   P.   H.   No.   41   City   Survey   No.   91, 
                                   
                  Tahsil   and   District   Nagpur   (Rural).     It   is 
                  further submitted that vide agreement dated 
                  17.5.2001 the plaintiff agreed to purchase and 
                  the   defendant   agreed   to   sale   the   aforesaid 
            


                  the 2.80 Hect. R (7 acres) out of the aforesaid 
                  land to the plaintiff for a total consideration 
         



                  of Rs. 9,62,500/- i. e. Rs. 1,37,500/- per acre.The   said       agreement     to     sale     is     duly 
                  notarised       before   the   Notary   Public.     It   issubmitted that till date the plaintiff has paid 





                  Rs.3,00,000/- to the defendant No. 1 to 3.2.            It   is   respectfully   submitted   that   it 
                  was   decided   between   the   plaintiff   and   the 
                  defendant No.1 to 3 that after the payment of 





                  Rs.   3,00,000/-   the   defendants   with 
                  immediately  execute  sale deed of 2 acres  of 
                  land   in   favour   of   the   plaintiff.     It   is   further 
                  submitted   that   as   it   is   already   stated   above 
                  the   plaintiff   has   paid   Rs.   2,30,000/-   to   the::: Downloaded on - 09/06/2013 15:06:27 :::22defendant No.1 to 3 and performed the part 
     of contract from his side.3.            It   is   respectfully   submitted   that 




                                                    
     after   receiving   the   amount   of   Rs.2,06,000/-the defendant 1 to 3 were bound to execute 
     sale deed of 2 acres in favour of the plaintiff, 
     but the defendant No.1 to 3 did not execute 




                                                   
     the sale deed of 2 acres land in favour of the 
     plaintiff   within   the   decided   period.     The 
     intentions  of the defendant No. 1 to 3 were 
     always   of   mischievous   nature   it   is   further 
     submitted that as per the agreement between 




                                      
     the   plaintiff   and   defendant   1   to   3   the   sale 
     deed   of   the   total   7   acres   land     was   to   be 
                     
     executed   on   or   before   17.11.2002.     it   is 
     submitted   that   without   giving   any   notice   to 
     the plaintiff nor intimation the defendant No. 
                    
     1 to 3 executed  sale deed in respect  of 2.00Hect. R. (5 acres) in favour of defendant No. 4and   5   by   a   registered   sale   deed   dated 
     13.07.2001   which   is   duly   registered   in   the 
      


     office of Sub Registrar Nagpur at Sr. No. 263. 
     It was a clear cheating by the defendant No.1 
   



     to   3   with   the   plaintiff.     The   plaintiff   also 
     published a paper notice in daily news paper 
     "NAVRASHTRA" informing the public not to 
     enter   into   any   agreement   in   respect   of   the 





     aforesaid property.   The plaintiff also sent a 
     legal   notice   to   the   defendant   No.1   to   3.Inspite of  that the defendant No. 1 to 3 sold 5acres  of  land to the defendant No. 4 and  5.The plaintiff was not at all aware of the said 





     fact.    Later  on  it  was known   to  the  plaintiff 
     that   the   5   acres   land   sold   to   the   defendantNo.4 and 5 was sold by defendant No.4 and 5to the defendant No.6 and 7 by a registered 
     sale   deed   dated   07.02.2002   which   is   duly::: Downloaded on - 09/06/2013 15:06:27 :::23registered sale deed dated 07.02.2002 which is 
                  duly   registered   in   the   office   of   the   sub 




                                                                                            
                  registrar Nagpur at Sr. No. 304.   The plaintiff 
                  was not all aware of the series of sale deeds 




                                                                    
                  executed by the defendants.  The plaintiff was 
                  under a sweet impression that the defendant 
                  No.   1   to   3   will   execute   sale   deed   of   total   7 
                  acres of land in favour of the plaintiff."In   para   1   it   is   alleged   without   giving   details   that   a   sum   of   Rs.3,00,000/- is paid.  To my mind it was absolutely necessary for the 
                                    
    plaintiff to have given the particulars and details of payment of Rs.3,00,000/- since the agreement of   sale saya that upon payment of 
                                   
    Rs. 3,00,000/- the obligation to execute the sale deed would arise, 

    and   the   agreement   does   not   disclose   payment   of   Rs.   3,00,000/-.Further   to   my   mind     no   amount   of   evidence   can   be   looked   into 
         



    unless such particulars are given.   Let us otherwise see what is the 

    evidence.  Defendants 1 to 3 definitely disputed having received Rs.3,00,000/-  and  specifically  the pleading  in  para  11  of the Written 

    Statement that they refused to execute the sale deed since plaintiff 





    failed   to show the receipts of payment of Rs. 3,00,000/- to them.Plaintiff in his affidavit in evidence gives details of the payment as 

    follows:::: Downloaded on - 09/06/2013 15:06:27 :::24i)          On the date of Agreement             Rs. 75,000/-




                                                               
                (17.05.2001)

    ii)         On 18.05.2001                        Rs.   5,000/-




                                                              
    iii)        On 05.06.2001                        Rs.    2,500/-

    iv)         On 07.06.2001                        Rs.   15,700/-

    v)          On 07.06.2001                        Rs.      1,500/-




                                                 
    vi)         On 12.06.2001     ig                 Rs.       3,292/-

    vii)        Towards repayment ofVehicle loan of defendant 1. Rs. 1,09,000/-viii)       On 10.07.2001                        Rs.     88,010/-____________________________
           



                                         Total          Rs. 3,00,002/-_____________________________





    Out of this,   it seems  that the defendants 1 to 3 dispute last two 

    sums  i. e. Rs. 1,09,000/- and Rs. 88,010/-.  We have already seen that 

    it   is   not   disputed   that   the   cheques   of   Rs.   1,50,000/-   issued   by 





    plaintiff   as   detailed   in   agreement   Ex.   35   were   never   encashed.Those cheques are on record at Ex. 74 to 76.   Obviously the only::: Downloaded on - 09/06/2013 15:06:27 :::25amount   paid  under  the   agreement   is Rs.   75000/-   only.    We have 




                                                                                       
    therefore   to   look   into   the   evidence   of   payment   of   Rs.   2.25   lacs.Defendants 1 to 3 dispute receipt of Rs. 1,09,000/- and Rs. 88,010/-.Obviously they do not dispute rest.   Therefore from Rs. 3,00,000/-Rs. 1,09,000/- and Rs. 88,010/- will have to be deducted.   If that is 

    deducted the total sum admittedly paid by plaintiff to defendants 1 

    to 3 comes to Rs. 1,02,990/-.14.
                                  
                We have seen that the plaintiff was entitled to sale deed 
                                 
    on payment of Rs. 3,00,000/-.  In this regard the evidence of plaintiff 

    Manikrao Ex. 32 needs to be looked into.  In para 5 of the affidavit 
            


    he specifically says that sale deed of 2 acres of land was written on 
         



    02.07.2001 but defendants 1 to 3 did not appear before Sub Registrar 

    for execution.   We have seen that defendants 1 to 3 in para 11 of 





    their Written Statement do not dispute this proposition but in fact 

    affirm.   Thus it is clear that plaintiff ought to show payment of Rs.3,00,000/- on or before 02.07.2001.  The pleadings of defendants 1 to 





    3   in   para   ii   show   that   they   did   not   execute   the   sale   deed   or 

    registered   the   sale   deed   for   want   of   evidence   from   plaintiff   of::: Downloaded on - 09/06/2013 15:06:27 :::26payment of Rs. 3,00,000/- to them.   Thus on that date there was a 




                                                                                           
    dispute of above payment of Rs. 3,00,000/- to the defendants.  The 




                                                                   
    fact   that   defendants   had   signed   the   sale   deed   to   be   executed   in 

    favour of plaintiff for 2 acres but refused to register it clearly goes to 




                                                                  
    show   that   they   had   shown   their   willingness   to   abide   all   the 

    conditions and had shown their bonafides.  It was justified on their 

    part   to   call   upon   the   plaintiff   to   produce   the   receipts   showing 




                                                     
    payment of Rs. 3,00,000/-.   Plaintiff did not and to my mind could 
                                    
    not have produced such evidence before the defendants as the plea 
                                   
    is   false.     From   affidavit   of   P.   W.   1   Manikrao   the   plaintiff,   it   is 

    absolutely   clear   that   he   had   not   paid   sum   of   Rs.   88,010/-   on 
            


    02.07.2001 at all.  In his affidavit the date of payment of Rs. 88,010/-is   shown   to   be   10.07.2001.     If   this   sum   of   Rs.   88,010/-   is   paid 

    alledgely on 10.07.01 it was certainly  not paid on 02.07.01.  Thus on 





    02.07.01   certainly   sum   of   Rs.   3,00,000/-   was   not   paid.     D.   W.   1 

    Prakash was shown the receipt dated 10.07.01 Ex. 43.   In his cross 

    examination   he   denies   his   signature   on   the   same.       Shri 





    Dharmadhikari   learned   Senior   Counsel   submits   that   in 

    examination-in-chief   D.   W.   1   Prakash   did   not   say   a   word   about::: Downloaded on - 09/06/2013 15:06:27 :::27receipt of Rs. 88,010/- being forged.To my mind Prakash need not 




                                                                                          
    say so in examination-in-chief as the plaintiff   has not pleaded in 




                                                                  
    the   plaint   that   he   has   paid   Rs.   88,010/-     on   a   particular   date   to 

    Prakash.     In   fact   I   would   say   that   Prakash   was  taken   by   surprise 




                                                                 
    when   he   was   shown   that   receipt.     Shri   Dharmadhikari   learned 

    Senior Counsel had contended that the Court has a right to reach to 

    a conclusion as to whether signature on the said receipt Ex. 43 is 




                                                    
    that   of   Prakash     taking   into   consideration   the   conduct   and 
                                   
    circumstances   if   no   expert   evidence   is   available.     He   relied   on   a 
                                  
    decision reported inShri Baru Ram   Vs.  Smt. Prasanni and othersAIR 1959 Supreme Court 93;"Mr.   Doabia   fairly   conceded   that 
                  there was no legal evidence on this point; but 
                  his argument was that from the other finding 
                  of fact recorded by the High Court it would 





                  be  legitimate to infer that the appellant had 
                  made the said signature.  In our opinion this 
                  contention is wholly untenable.   It must be 
                  borne in mind that the allegation against the 
                  appellant is that he has committed a corrupt 





                  practice   and   a   finding   against   him   on,   the 
                  point   would   involve   serious   consequences. 
                  In such a case, it would b e difficult to hold 
                  that   merely   from   the   findings   recorded   by 
                  the High Court it would be legitimate to infer::: Downloaded on - 09/06/2013 15:06:27 :::28that the appellant had signed the form and 
     had   in   fact   appointed   Puran   Singh   as   his 




                                                                           
     polling   agent.     Mr.   Doabia   argues   that   it  is 
     not always absolutely   necessary to examine 




                                                   
     an expert or to lead other evidence to prove 
     handwriting.  It would be possible and legal, 
     he  contends,  to   prove  the  handwriting   of  a 
     person   from   circumstantial   evidence.Section 67of the Indian Evidence Act   (1 of 
     1872) provides inter alia that if a document is 
     alleged   to   be   signed   by   any   person   the 
     signature   must   be   proved   to   be   in   his 
     handwriting.   Section 45 and 47 of the said 




                                     
     Act   prescribed   the   method   in   which   such 
     signature   can   be   proved.     Under   S.   45,   the 
                     
     opinion   of   the   handwriting   experts   is 
     relevant while under S. 47 the opinion of any 
     person   acquainted   with   the   handwriting   of 
                    
     the   handwriting   experts   is   relevant   while 
     under   S.   47   the   opinion   of   any   person 
     acquainted   with   the   handwriting   of   the 
     person   who   is   alleged   to   have   signed   the 
      


     document is admissible.  The explanation to 
     the   section   explains   when   a   person   can   be 
   



     said to be acquainted with the handwriting of 
     another person.  Thus, there can be no doubt 
     as   to   the   manner   in   which   the   alleged 
     signature of the appellant could and should 





     have   been   proved;   but   even   assuming   that 
     the signature of the appellant can be legally 
     held to be proved on circumstantial evidence 
     the principle which governs the  appreciation 
     of   such   circumstantial   evidence   in   cases   of 





     this kind cannot be ignored.  It is only if the 
     court   is   satisfied   that   the   circumstantial 
     evidence   irresistibly   leads   to   the   inference 
     that the appellant must have signed the form 
     that the court can legitimately reach such a::: Downloaded on - 09/06/2013 15:06:27 :::29conclusion.   In out opinion, it is impossible 
                 to accede to Mr. Doabia's argument that the 




                                                                                      
                 facts   held   proved   in   the   High   Court 
                 inevitably lead to its final conclusion that the 




                                                              
                 appellant had in fact signed the form.   It is 
                 clear   that   in   reaching   this   conclusion   the 
                 High Court did not properly   appreciate the 
                 fact that there was no legal evidence on the 




                                                             
                 point   and   that   the   other   acts   found   by   it 
                 cannot even reasonably support the case for 
                 respondent 1.   We must accordingly reverse 
                 the finding of the High Court and hold that 
                 respondent   1   has   failed   to   prove   that   the 




                                                
                 appellant had committed a corrupt practice 
                 under S 123(7)(c) of the Act."In   the   instant   case   the   circumstances   certainly   suggest   that   the 

    document must not have been signed by Prakash.     In fact due to 
           


    want of pleadings it was incumbent on the part of  plaintiff to have 
        



    examined an expert to prove that it   bears the signature of Prakash.In   a   decision   reported   inThiruvengadam   Pillai     Vs.  





    Navaneethmmal   And   Another(2008)4   Supreme   Court   Cases   530.Supreme Court observed as under:"19.   The   trial   court   had   analysed 
                 the evidence properly and had dismissed the 
                 suit   by   giving   cogent   reasons.     The   first 
                 appellate court reversed it by wrongly placing::: Downloaded on - 09/06/2013 15:06:27 :::30onus on the defendants.  Its observation that 
     when   the   execution   of   an   unregistered 




                                                                              
     document   put   forth   by   the   plaintiff   was 
     denied   by   the   defendants,   it   was   for   the 




                                                      
     defendants   to   establish   that   the   document 
     was     forged   or   concocted,   is   not   sound 
     proposition.     The   first   appellate   court 
     proceeded on the basis that it is for the party 




                                                     
     who   asserts   something   to   prove   that   thing;and   as   the   defendants   alleged   that   the 
     agreement   was   forced,   it   was   for   them   to 
     prove   it.     But   the   first   appellate   court   lost 
     sight   of   the   fact   that       the   party   who 




                                       
     propounds the document will have to prove 
     it.     In   this   case   the   plaintiff   came   to   court 
                      
     alleging that the first defendant had executed 
     an agreement of sale in his favour.   The first 
     defendant having denied it, the burden  was 
                     
     on   the   plaintiff   to   prove   that   the   first 
     defendant   had   executed   the   agreement   and 
     not   on   the     first   defendant     to   prove   the 
     negative.   The issues also placed the burden 
      


     on the plaintiff to prove the document to be 
     true.     No   doubt,   the   plaintiff   attempted   to 
   



     discharge   his   burden   by   examining   himself 
     as   also   scribe   and   one   of   the   attesting 
     witnesses.     But   the   various   circumstances 
     enumerated   by  the  trial  court   and  the  High 





     Court referred to earlier, when taken together 
     rightly create a doubt about the genuineness 
     of   the   agreement   and   dislodge   the   effect   of 
     the evidence of PWs 1 to 3.  We are therefore 
     of   the   view   that   the   decision   of   the   High 





     Court,   reversing   the   decision   of   the   first 
     appellate   court,   does   not   call   for 
     interference."::: Downloaded on - 09/06/2013 15:06:27 :::31It   is   thus   clear   that   plaintiff   has   failed   to   show   payment   of   Rs.88,010/-     at   all,   much   less  prior   to   02.07.2001.     Plaintiff   inserts   a 




                                                                  
    notice Ex. 45 in newspaper on 03.07.2001 i. e. the next day of refusal 

    of registration of sale deed.  It is alleged in it that the defendants 1 to 




                                                                 
    3 are avoiding execution of the sale deed.   It is in this background 

    that it is difficult to accept the theory that plaintiff paid Rs. 88,010/-to the defendants  vide Ex. 43 on 10.07.2001.  It is difficult to accept 




                                                    
    further   that   defendants   would   accept   Rs.   88,010/-   on   10.07.2001 
                                   
    when plaintiff had inserted the notice on 03.07.2001 and they had 
                                  
    refused to execute the sale deed.  In view of this the decision in AIR 

    1959 Supreme Court 93 has no bearing on the case at hand.15.          Next   payment   is   of   Rs.   1,09,000/-.     Surprisingly   the 

    plaintiff does not give the date of this payment of Rs. 1,09,000/- in 





    the pleadings.   In affidavit however date of such payment in para 

    3(f) is given as 29.06.2001.  If this sum was paid on 29.06.01 at a time 

    it must be assumed that such a large sum is paid under a receipt.  It 





    must   therefore   further   be  assumed   that   it  was  available   with  the 

    plaintiff on 29.06.2001.  However if it was so available on 29.06.2001,::: Downloaded on - 09/06/2013 15:06:27 :::32there  was  no  difficulty  in  showing  it to  the  defendants 1 to  3 on 




                                                                                       
    02.07.2001.     Existence   of   this   receipt   on   29.06.01   is   therefore 




                                                               
    certainly  doubtful.   The  reason   is to  be found in  the evidence of 

    financer  itself.        The  receipt  Ex.  63  said  to   be  issued   by  P. W. 2 




                                                              
    Subhashchandra shows that it is a single receipt of Rs. 1,09,000/-paid   on   same   day.     In   the   evidence   the   witness   says   that   this 

    payment was made to him from time to time.  If it was made from 




                                                 
    time to time it was made in installments and therefore there ought 
                                 
    to be separate receipt of each repayment made to him and not one 
                                
    consolidated receipt.     Witness admits that he maintains accounts.If he maintains books of accounts it was still very easy   for him to 
            


    produce the account books showing the entries of the repayment 
         



    and their particular dates.  Now this Ex. 63 speaks of repayment of 

    Rs. 1,09,000/- towards full and final satisfaction of loan of defendant 





    No.1.   It is dated 29.06.2001.   This receipt shows that it is towards 

    full and final settlement  of the account.  It must be said that from 

    that date the account was completely closed.   However this is also 





    proved to be false.   Ex. 77 is the other receipt of repayment of Rs.39,500/-   by   defendant   No.   1   to   P.   W.   2   Subhashchandra.     It   has::: Downloaded on - 09/06/2013 15:06:27 :::33come   in   cross   examination   of   D.   W.   1   Prakash   that   he   paid   Rs.39,500/- to financer on 28.02.2002.  Now if according to plaintiff he 




                                                               
    paid   Rs.   1,09,000/-   to   financer   on   29.06.2001   in   full   and   final 

    settlement   of   the   account   the   question   is,   why   did   the   financer 




                                                              
    accept Rs. 39,500/- from defendant and why did defendant No.1 pay 

    such a large amount.   There is no explanation from plaintiff about 

    this.  The date of Ex. 43 in respect of Rs. 1,09,000/- is therefore not a 




                                                 
    correct   date.   In order  to  show  that  money  was paid  in  time the 
                                 
    receipt   was   obtained   without   date   and   it   must   have   been   put 
                                
    according to plaintiff's wish later.   I, therefore, conclude that even 

    on 29.06.2001 this amount may not have been paid   at the most it 
            


    may have been paid  subsequent thereto.  I may say further that it 
         



    may have been paid subsequent to 13.07.2001 when the defendants 

    1 to 3 executed sale deed in favour of defendants 4 and 5.  It is for 





    these reasons that the plaintiff  has kept back best  evidence in the 

    form   of   books  of   accounts   of   witness  No.2   Subhashchandra.    He 

    could have very well called him along with books of accounts since 





    Subhashchandra   admits   maintenance   of   said     accounts.     I, 

    therefore, find that as on 02.07.2001 and 13.07.2001 neither amount::: Downloaded on - 09/06/2013 15:06:27 :::34of Rs. 88,010/- nor amount of Rs. 1,09,000/- was paid.  There is also 




                                                                                          
    plaintiff's   own   admission   of   having   paid   Rs.   2,30,000/-   only   by 




                                                                 
    16.11.2002.   In reply to the notice sent by defendants plaintiff says 

    that he has paid Rs. 2,30,000/- only.   This supports the theory that 




                                                                
    sum of Rs. 88,010/- was never paid.  Receipt dated 10.07.2001 Ex. 43 

    therefore really appears to be a forged one.In any case therefore 

    prior   to   02.07.2001   plaintiff   had   not   paid   Rs.   3,00,000/-.     It   is 




                                                   
    therefore the plaintiff who committed breach.  A person who raises 
                                  
    false plea for the payment of consideration could not be said to be 
                                 
    ever ready to perform his part of the contract .   It is so held in a 

    decision reported inRam Kumar Agarwal And Another  Vs.  Thawar  
            


    Das   (Dead)   Through   Lrs.     (1999)7   Supreme   Court   Cases   303.Supreme Court observed as under:"It is statutorily provided bySection 
                 16(c)of   the   Specific   Relief   Act,   1963   that   to 
                 succeed in a suit for specific performance of a 
                 contract the plaintiff shall aver and prove that 
                 he has performed and has always been ready 





                 and willing to perform the essential terms of 
                 the contract which were to be performed by 
                 him other than the terms the performance of 
                 which  has  been prevented  or waived by the 
                 defendant.  In the facts and circumstances of::: Downloaded on - 09/06/2013 15:06:28 :::35the   case   raising   of   the   plea   by   Thawar   Das 
                 that   on   19.09.1966   there   was   afresh 




                                                                                      
                 agreement   between   the   parties   and   he   had 
                 paid Rs. 2000 to Phool Chand associated with 




                                                              
                 the   positive   finding   arrived   at   by   the   two 
                 courts   below   which   finding   has   not   been 
                 upset   by   the   High   Court   that   the   plea   was 
                 false and was sought to be substantiated  by 




                                                             
                 producing   a   false   and   fabricated   document 
                 makes the situation worse for Thawar Das.  A 
                 person   who   falsely   alleges   to   have   paid   Rs.
                 2000 and also attempts at proving the plea at 
                 the stage of the trial cannot be said to have 




                                                 
                 been   ever   ready   and   willing   to   pay   Rs.7000 
                 which under the contract it was his obligation 
                                 
                 to pay.  The present one is not a case where a 
                 plea as to payment was raised bona fide but 
                 abandoned at or before the trial for inability 
                                
                 to prove."16.        This takes me to consider the question of performance of 
         



    second part of the contract that is in respect of 5 acres of land sold 

    to defendants 4 and 5.     The sale   had taken place on 13.07.2001.Shri   Dharmadhikari   learned   Senior   Counsel   for   plaintiff   submits 

    that   in   cases   of   immoveable   property   time   is   never   essence   of 

    contract and once contract is broken there would never be question 





    of plaintiff being ready or otherwise.   He submits that the plaintiff 

    was also therefore not bound to perform his part of the contract and::: Downloaded on - 09/06/2013 15:06:28 :::36make   further   payment.     Shri   Dharmadhikari   Learned   Senior 




                                                                                        
    Counsel has relied on a decision of the Supreme Court inM. M. S. 




                                                                
    Investments,   Madurai   And   Others     Vs.     V.   Veerppan   And   Others(2007)9 Supreme Court Cases 660:"Questioning the plea of readiness 
                 and willingness is a concept relatable to an 
                 agreement.  After conveyance the question of 




                                                  
                 readiness   and   willingness   is   really   not 
                 relevant.     Therefore,   the   provision   of   theSpecific Relief Act, 1963(in short "the Act") is 
                 not   applicable.     It   is   to   be   noted   that   the 
                 decision inRam AwadhCase relates to a case 
                                
                 where   there   was   only   an   agreement.     After 
                 the   conveyance,   the   only   question   to   be 
                 adjudicated is whether the purchaser was a 
                 bona fide purchaser for value without notice.In the present case the only issue that can be 
                 adjudicated   is   whether   the   appellants   were 
        



                 bona   fide   purchasers   for   value   without 
                 notice.  The question whether the appellants 
                 were   ready   and   willing   is   really   of   no 
                 consequence.InRam   AwadhCase   the 





                 question of the effect of a completed sale was 
                 not   there.     Therefore,   that   decision   cannot 
                 have   any   application   so   far   as   the   present 
                 case   is   concerned.     Once   there   is   a 
                 conveyance  the concept would be  different 





                 and   the   primary   relief   could   be   only 
                 cancellation."::: Downloaded on - 09/06/2013 15:06:28 :::37Supreme Court says that after the conveyance is executed question 




                                                                                     
    of   readiness   and   willingness   is   irrelevant.     Shri   Bhangde   learned 




                                                             
    Senior   Counsel   appearing   for   defendants   6   and   7   submits   that 

    question can also be raised by subsequent purchasers also.     The 




                                                            
    Supreme Court observed in a decision reported inAzhar Sultana 

    Vs.  B. Rajamani & Ors.2009(3) SCALE 159 as under:"18. It is also a well settled principle 
                                
                 of   law that not only the original vendor but 
                 also a subsequent purchaser would be entitled 
                 to raise a contention that the plaintiff was not 
                               
                 ready   and   willing   to   perform   his   part   of 
                 contract.   [SeeRam Awadh (Dead) by L.Rs. & 
                 Ors.  V.  Achhaibar Dubey & Anr.(2000) 2 SCC 
                 428 para 6].20.   If   the   plaintiff   has   failed   to 
        



                 establish   that   she   had   all   along   been   ready 
                 and willing to perform her part of contract, in 
                 our   opinion,   it   would   not   be   necessary   to 
                 enter   into   the   question   as   to   whether   the 





                 defendant   Nos.   5   and   6   were   bona   fide 
                 subsequent   purchasers   for   value   without 
                 notice or not."In yet  another  decision  of Larger  Bench  reported  inJawahar Lal 

    Wadhwa And Another  Vs.  Haripada Chakroberty(1989) 1 Supreme::: Downloaded on - 09/06/2013 15:06:28 :::38Court Cases  76.  Supreme Court observed as follows:"4. It is a common ground that the 
               sum   of   Rs.   105   per   month   referred   to   in 
               Clause 2(b) of the said agreement was paid by 
               the respondent only up to January 1976 and 




                                                          
               that   this   payment   covered   up   to   23 
               instalments   and   more   than   200   instalments 
               were   remaining   unpaid.         Mr.   Bhandare 
               pointed   out   that   it   was   contended   by   the 
               appellants before the arbitrator that, although 




                                              
               the   agreement   for   sale   between   the   parties 
               was not registered and might not convey any 
                              
               interest to     appellant 1 in the property, the 
               appellants had been put in possession of the 
               said   land   and   construction   pursuant   to   the 
                             
               said   agreement   since   September   1973,   as 
               appears   from   the   agreement   of   sale,   and   in 
               view of this, appellants were entitled to retain 
               possession  under the protection  afforded bySection 53-Aof the Transfer of Property Act, 
               1882.  he drew our attention to the fo9llowing 
       



               statements   contained   in   the   award   of   the 
               learned arbitrator:The   respondent   who   has   been   in 





               possession   of   the   property   since   September 
               1973   as   would   appear   from   the   first 
               agreement   for   sale,   claimed   that   his 
               possession was protected underSection 53-Aof the Transfer of Property Act.....Section 53-A affords protection to a 
               transferee on certain conditions, one of which 
               is   that   "the   transferee   has   performed   or   is 
               willing   to   perform   his   part   of   contract".::: Downloaded on - 09/06/2013 15:06:28 :::39Under the agreement of sale, the respondent 
     was required  to pay the claimant a monthly 




                                                                             
     sum of Rs. 105 to enable the latter to pay the 
     instalments   in   discharge   of   the   house 




                                                     
     building   loan.     From   the   receipts   filed   it 
     appears that the respondent paid only up to 
     January   1976   which   covered   23   instalments 
     only   and   more   than   100   instalments 




                                                    
     remained   to   be   paid.     There   is   no   valid 
     reasons why he should have failed to carry out 
     his   obligation   under   the   contract.     Thus   it 
     cannot   be   said   that   the   respondent   had 
     performed or was willing to perform his part 




                                       
     of   the   contract.     Therefore,   the   respondent 
     was   not   entitled   to   retain   possession   of   the 
                      
     disputed property beyond January 1976.It   was   submitted   by   Mr.   Bhandare 
                     
     that these statements clearly disclose an error 
     apparent   on   the   face     of   the   award.       It   is 
     pointed   out   by   him   that,   prior   to   February 
     1976, the respondent by his advocate's notice 
      


     dated   January   16,   1976   had   repudiated   the 
     said agreement for sale by contending in his 
   



     notice   that   it   had   been   procured   by     fraud, 
     undue   influence   and   coercion   practised   by 
     appellant 1 and it was submitted that the said 
     repudiation was wrongful and in view thereof 





     appellant 1 was absolved from his obligation 
     to make any   further payment of Rs. 105 per 
     month or to continue to be ready and willing 
     to perform the agreement.   It was submitted 
     by   him   that   the   aforestated   statements 





     contained   in   the   award   ran   counter   to   the 
     settled  position  in law and  disclosed  a  clear 
     error of law on the fact of the award,.  He drew 
     out attention the the decision of this Court inInternational   Contractors   Ltd.   V.   Prasanta::: Downloaded on - 09/06/2013 15:06:28 :::40Kumar   Sur.     In   that   case   the   appellant   had 
     purchased   the   property   in   dispute   from   the 




                                                                          
     respondent   but   soon   thereafter   there   was   n 
     agreement   for  reconveyance   of  the   property 




                                                  
     to the respondent within a period of two years 
     for   almost   the   same   value   for   which   it   was 
     sold.     Before   the   expiry   of   the   stipulated 
     period   the   respondent   entered   into 




                                                 
     correspondence with the appellant asking for 
     the   completion   of   the   agreed   reconveyance 
     and intimating that the purchase money was 
     ready   to   be   paid   but   after   some   further 
     correspondence   the  appellant's  solicitors   on 




                                     
     his     behalf   repudiated   the   agreement   for 
     reconveyance.   The respondent then did not 
                     
     tender the price agreed to be paid and filed a 
     suit   for   specific   performance.     The   suit   was 
     dismissed   by   the   trial   court   on   the   ground 
                    
     that the respondent had not paid the money.The   High   Court   reversed   the   decision   and 
     decreed the suit.  On an appeal to this Court it 
     was   held   that   as   the   appellant   had     totally 
      


     repudiated the contract for reconveyance and 
     had failed to perform his part of the contract 
   



     it was open to the respondent  to  sue for its 
     enforcement and the High Court was right in 
     holding   that   respondent   was   entitled   to   a 
     decree for specific performance.  In our view, 





     Mr. Bhandare may be right in contending that 
     this decision does show that it has been held 
     b y this   Court that in certain circumstances 
     once   a  party   to   a  contract   has   repudiated   a 
     contract it is not necessary for the other party 





     to   tender   the   amount   payable   under   the 
     contract   in   the   manner   provided   in   the 
     contract   in   order   to   successfully   claim   the 
     specific   performance   of   the   contract.     The 
     decision,   however,   nowhere   lays   down   that::: Downloaded on - 09/06/2013 15:06:28 :::41where one party to a contract repudiates the 
     contract the other party to the contract which 




                                                                           
     claims specific performance of the contract is 
     absolved from his obligation to show that he 




                                                   
     was ready and willing to perform the contract. 
     Mr.   Bhandare's   argument     really   is   to   the 
     effect that the respondent wrongly repudiated 
     the contract by his said letter dated January 




                                                  
     16,   1976   before   all   the   mutual     obligations 
     under the contract had been carried out, that 
     is   to   say,   he   committed   an   anticipatory 
     breach   of   the   contract   and   in   view   of   this, 
     appellant   1   was   absolved   from   carrying   out 




                                     
     his remaining obligations under the contract 
     and could claim specific performance of the 
                     
     same  even though he failed to carry  out his 
     remaining obligations under the contract and 
     might have failed to show his readiness and 
                    
     willingness   to   perform   the   contract.     In   our 
     view, this argument cannot  be accepted.   It is 
     settled in law that where a party to a contract 
     commits an anticipatory breach as putting an 
      


     end to the contract and sue for damages, but 
     in   that   event   he   cannot   ask   for   specific 
   



     performance.   The other option open to the 
     other   party,   namely,   the   aggrieved   party,   is 
     that he may choose to keep the contract alive 
     till   the   time   for   performance   and   claim 





     specific   performance   but,   in   that   event,   he 
     cannot   claim   specific   performance   of   the 
     contract   unless   he   shows   his   readiness   and 
     willingness   to   perform   the   contract.     The 
     decision   of   this   Court   inInternational 





     Contractors   Limited   V.  Prasanta   Kumar   Sur, 
     property   analysed   only   lays   down   that   in 
     certain  circumstances  it is not necessary  for 
     the   party   complaining   of   an   anticipatory 
     breach of contract by the other party to offer::: Downloaded on - 09/06/2013 15:06:28 :::42to   perform   his   remaining   obligations   under 
                  the   contract   in   order   to   show   his   readiness 




                                                                                       
                  and willingness to perform the contract and 
                  claim   specified   performance   of   the   said 




                                                               
                  contract.    Mr.  Bhandare  also  referred  to  the 
                  decision of the Andhra Pradesh High Court in 
                  Makineni   Nagayya   V     Makineni   Bapamma.We do not consider it necessary to refer to this 




                                                              
                  decision as it does not carry  the case of the 
                  appellants any further.   The ratio ofthe said 
                  decisionin no way runs counter to the said 
                  position in law set out above."To   my   mind   it   would   be   necessary   to   look   into   readiness   of   the 

    plaintiff   as   the   subsequent   purchaser   steps   into   the   shoes   of   the 
                                 
    vendor   and   since   such   plea   would   have   been   available   to   the 

    vendor,   such   a   plea   would   also   be   available   to   the   subsequent 
            


    purchaser.  If the decision inJawahar Lal Wadhwa's case by Larger 
         



    Bench is seen it would be clear that even when a party alleges wrong 

    repudiation he has a choice to keep the contract alive till the time of 





    performance and claim performance.    Butin that casehe will also 

    have to show his readiness and willingness to perform his part of 





    the contract throughout or he has other choice of putting contract 

    to an end and claim damages.::: Downloaded on - 09/06/2013 15:06:28 :::4317.         To   my   mind   the   controversy   in   this   appeal   can   be 




                                                                                        
    resolved by applying the decision inJawahar Lal Wadhwa's case.18.         The agreement of sale Ex. 35 says that the contract is to be 




                                                               
    concluded and sale deed executed within 1  ½ years from the date of 

    contract i.e. 17.05.2001.  The period of 1  ½ year comes to an end by 

    18.11.2002.  The plaintiff i. e. the purchaser had agreed to pay every 




                                                  
    three months some amount to the seller i. e. defendants 1 to 3.  It is 
                                  
    not disputed that plaintiff did not pay any amount as agreed after 
                                 
    the dispute arose over the sale of two acres of land.  We have already 

    seen  that  plaintiff  has  failed  to  establish  payment  of Rs.  88,010/-and Rs. 1,09,000/-.  He had also not paid any amount which he was 
         



    supposed to pay every three months.  Reluctance of the plaintiff to 

    perform his part of the contract is evident from two more facts.  The 





    first   that,   he   issued   notice   informing   the   public   that   he   has   a 

    contract with defendants and that the defendants are reluctant to 

    execute   the   sale   deed.     This   notice   is   Ex.   44   and   is   issued   on 





    03.07.2001 i. e. the day after refusal of defendants 1 to 3 to register 

    the sale deed due to the non supply of receipts with regard to the::: Downloaded on - 09/06/2013 15:06:28 :::44payment.   He says in the said notice that he intends to take legal 




                                                                                      
    action against defendants 1 to 3.  Surprisingly  after this notice the 




                                                              
    plaintiff does not take any action.  He neither pays the amount nor 

    informs the defendants 1 to 3 to perform the contract nor does he 




                                                             
    institute a suit immediately.  He just keeps quiet.  Defendants 1 to 3 

    issue notice Ex. 48 the notice first on 15.11.2001 calling upon the 

    plaintiff to be ready to take sale deed and pay money.   Until that 




                                                 
    date   i.   e.   from   03.07.2001   to   16.11.2002   there   is   no   notice   to 
                                 
    defendants by plaintiff nor he files a suit nor does he send or pay 
                                
    money to the defendants.   Even in reply to this notice of defendants 

    the plaintiff does not respond positively.  He says in reply that there 
           


    is   a   breach   of   contract   and   he   is   taking   action   against   the 
        



    defendants underSection 420Indian Penal Code.   He does not say 

    a word about his readiness to perform his part of the contract at all 





    and on the other hand gives a threat of criminal action.  Further in 

    this reply to the notice dated 16.11.2002 he positively says he paid 

    Rs. 2,30,000/- only .  Thus his plea of having paid Rs. 3,00,000/- prior 





    to   02.11.2001   was   patently   false.     All   this   conduct   of   plaintiff 

    certainly goes to show that he was not at all ready to perform.   A::: Downloaded on - 09/06/2013 15:06:28 :::45party   has   to   all   the   while   show   his   willigness   to   perform   the 




                                                                                       
    contract.   If plaintiff would have been really ready to take the sale 




                                                               
    deed he would have reached positively to the notice Ex. 48.  I have 

    no hesitation in concluding that plaintiff was not ready to perform 




                                                              
    the contract.19.         Much   ado   was   made   of   the   plea   of   defendants   that 
                                  
    plaintiff and defendants 4 and 5 were known to each other closely 

    and plaintiff introduced  defendants 4 and  5 to  defendants 1 to 3 
                                 
    which   ultimately   laid   to   execution   of   sale   deed   in   favour   of 

    defendants 4 and 5 on 13.07.2001.   This may or may not be true.That   does   not   turn   the   table   either   way.     Ultimately   as   held   inJawahar Lal Wadhwa's case the plaintiff must prove his readiness 

    and not merely complain of breach.  Supreme Court has said that if 





    the   plaintiff   wants   to   simply   complain   of   breach,   he   should   be 

    prepared to have damages and not specific performance.     For that 





    the other option is readiness to perform the contract.  Simply saying 

    on oath that he is ready does not do.  It must be established as a fact 

    that  all  that  is  required  to  be performed  under  contract  before a::: Downloaded on - 09/06/2013 15:06:28 :::46right to seek performance accrues must be performed.  To conclude 




                                                                                            
    I would say that the  amount of Rs. 3,00,000/-  is not paid  though 




                                                                    
    alleged to be paid, (2) the amount  required to be paid every month 

    is not paid and (3)  there is no positive response to the defendants 




                                                                   
    notice Ex. 48 calling upon the plaintiff to have a sale deed.   I find 

    that plaintiff was not ready and willing to perform his part of the 

    contract.     In   view   of   the   fact   that   plaintiff   raised   a   false   plea   of 




                                                      
    payment of Rs. 3,00,000/- , the discretion could not be used in any 
                                    
    case in favour of the plaintiff.20.          Shri Dharmadhikari learned Senior Counsel had cited to 
            


    me the following decisions also.The   first   decision   is   reported   inAbdulla   Ahmed       Vs. 

    Animendra Kissen MitterAIR 1950 Supreme Court 15.  This decision 





    was   cited   for   explaining   the   phrase   finding   a   purchaser.     I   have 

    found that even if plaintiff had not introduced the defendants 4 and 

    5 that does not make any difference.Second decision is reported in The Godhra Electricity Co.Ltd. And Another    Vs.   The State of Gujrat And Another   (1975) 1::: Downloaded on - 09/06/2013 15:06:28 :::47Supreme Court Cases 199.  This decision was cited for a proposition 




                                                                                       
    as   to   the   help   which   the   Court   can   take   of   extrinsic   factor   in 




                                                               
    interpreting the document.The third  decision is reported  inNagindas Ramdas   Vs.  




                                                              
    Dalpatram   Ichharamalias   Brijram   And   Others     (1974)1   Supreme  

    Court Cases 242, which deals with the value of the admissions underSection 58of the Evidence Act.  There is no doubt that admissions 




                                                  
    as  contemplated   by  Section   58  could   be made  foundation   of  the 
                                  
    rights   of   the   parties   and   carry   more   value   than   evidentiary 
                                 
    admissions.21.         In view of my findings, I proceed to allow both the appeals 
           



    and set aside the judgment and decree passed by the trial Court.  In 

    the   circumstances   the   appeals   are   allowed.     The   judgment   and 





    decree passed by the trial Court are set aside.  The suit is dismissed 

    with costs.  The  appellants are  entitled  to costs from respondent 

    No.1.svk                                                          JUDGE::: Downloaded on - 09/06/2013 15:06:28 :::48svk::: Downloaded on - 09/06/2013 15:06:28 :::