Case Note & Summary
The appellant, M/s Multicon Builders, a registered partnership firm through its partner Suryakant Gendasingh Thakur, was the original defendant no.9 in a suit for specific performance filed by the respondent no.1, Smt. Sumandevi wd/o Shankarrao Deshmukh, along with other respondents. The suit sought specific performance of an alleged agreement to sell dated 01.08.1995 executed by Shankarrao Deshmukh (since deceased) in favor of the plaintiff for a property in Nagpur. The plaintiff claimed that the defendant no.9 was in possession of the property as a licensee and that the agreement was executed for a total consideration of Rs. 1,50,000, out of which Rs. 1,20,000 was paid as earnest money. The trial court decreed the suit in favor of the plaintiff, directing the defendants to execute the sale deed upon payment of the balance consideration. The appellant-defendant no.9 appealed against this decree. The High Court framed issues regarding the genuineness of the agreement, the plaintiff's readiness and willingness, limitation, and the nature of possession. The court analyzed the evidence and found that the plaintiff failed to prove the execution of the agreement. The attesting witness turned hostile, and the handwriting expert's report was inconclusive. The court noted that the plaintiff did not examine any independent witness and that the agreement was not registered. The court also found that the plaintiff did not prove her readiness and willingness to perform her part of the contract, as she did not produce any evidence of financial capacity. The suit was also held to be barred by limitation, as the alleged date of performance was 01.08.1995 and the suit was filed in 2002 without any explanation for the delay. The court further held that the defendant no.9's possession was not as a prospective purchaser but as a licensee, and the plaintiff failed to prove that the defendant was put in possession in part performance of the agreement. Consequently, the appeal was allowed, the trial court's decree was set aside, and the suit was dismissed.
Headnote
A) Specific Relief Act, 1963 - Section 16(c) - Readiness and Willingness - Plaintiff must plead and prove continuous readiness and willingness to perform her part of the contract - In the absence of such proof, decree for specific performance cannot be granted (Paras 15-20). B) Evidence Act, 1872 - Section 101 - Burden of Proof - The burden to prove the execution of an agreement to sell lies on the plaintiff who asserts it - Mere admission of signature on a blank paper does not prove the agreement (Paras 12-14). C) 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 - Plaintiff failed to prove that the suit was within limitation (Paras 21-23). D) Transfer of Property Act, 1882 - Section 53A - Part Performance - Defendant cannot claim benefit of part performance without proving that he was put in possession in part performance of the agreement - Possession must be referable to the agreement (Paras 24-26).
Issue of Consideration
Whether the plaintiff proved the execution of the agreement to sell and her readiness and willingness to perform her part of the contract, and whether the suit was within limitation.
Final Decision
Appeal allowed. The judgment and decree of the trial court are set aside. The suit for specific performance stands dismissed.
Law Points
- Specific performance
- burden of proof
- agreement to sell
- possession
- limitation
- readiness and willingness
