Case Note & Summary
The appellant, Kanhaiyalal Motilal Talera, filed a suit for specific performance of an agreement to sell dated 28-03-1979, allegedly executed by Sarubai Narayan Mulik (original defendant no.1) for sale of agricultural land at Survey No. 16, Vadgaon Sheri, Pune. The plaintiff claimed to have paid part consideration of Rs. 600, Rs. 2000, and Rs. 3000 in 1985. The trial court dismissed the suit on grounds of limitation and failure to prove readiness and willingness. In appeal, the High Court examined the evidence and found that the plaintiff failed to prove the execution of the agreement as no attesting witness was examined. The court also held that the plaintiff did not demonstrate readiness and willingness to perform his part, as he did not show financial capacity or any steps taken to pay the balance consideration. The suit was held to be within limitation as the cause of action arose from the notice of refusal in 1987. However, the plaintiff's claim for specific performance was rejected, and the appeal was dismissed with costs.
Headnote
A) Specific Relief Act, 1963 - Section 16(c) - Readiness and Willingness - Plaintiff must prove continuous readiness and willingness to perform his part of the contract from the date of agreement till the decree - In the present case, plaintiff failed to adduce evidence of financial capacity or steps taken to perform his obligations - Held that plaintiff not entitled to specific performance (Paras 10-15). B) Limitation Act, 1963 - Article 54 - Suit for Specific Performance - Limitation period of three years from the date fixed for performance or from notice of refusal - Agreement dated 28-03-1979, no date fixed for performance; plaintiff filed suit in 1988 after notice in 1987 - Held that suit is within limitation as notice of refusal was in 1987 (Paras 16-18). C) Evidence Act, 1872 - Section 68 - Proof of Execution of Document - Agreement to sell required to be proved by examining attesting witnesses - Plaintiff failed to examine any attesting witness - Held that execution of agreement not proved (Paras 19-22). D) Transfer of Property Act, 1882 - Section 53A - Part Performance - Doctrine of part performance requires possession in furtherance of contract - Plaintiff failed to prove possession or any act done in furtherance of contract - Held that part performance not available (Paras 23-25).
Issue of Consideration
Whether the plaintiff is entitled to specific performance of the agreement to sell dated 28-03-1979? Whether the suit is barred by limitation? Whether the plaintiff has proved his readiness and willingness to perform his part of the contract?
Final Decision
The appeal is dismissed with costs. The judgment and order of the trial court dated 16-11-2007 is confirmed.
Law Points
- Specific performance
- Readiness and willingness
- Limitation
- Burden of proof
- Agreement to sell
- Part performance
