Case Note & Summary
The case involves two second appeals arising from a suit for specific performance of an agreement of re-conveyance. On 24 June 1968, Babu Kale (common ancestor of respondents) sold 10 acres 9 gunthas of land to Dhavji for Rs.1,000, with a simultaneous agreement of re-conveyance. The plaintiff alleged that the transaction was a loan and that he had repaid Rs.1,000 in June 1973 and was ready to pay again before the five-year period ended on 24 July 1973. He issued a notice on 19 June 1973, which was returned unserved, and filed RCS No. 74/1974 on 31 October 1974. Both parties died during pendency, and their legal representatives were brought on record. The trial court decreed the suit, holding that the agreement to re-convey was made, time was not essence of contract, the suit was within limitation, and the plaintiff proved readiness and willingness. The appellate court confirmed the decree. The appellants (LRs of Dhavji) raised substantial questions of law: (i) findings on readiness and willingness are based on no evidence; (ii) plaintiff failed to comply with the time fixed; (iii) some LRs of Dhavji were minors and no guardian ad litem was appointed, violating Order 32 CPC. The High Court held that the findings on readiness and willingness were based on evidence, time was not essence of the contract, and the failure to appoint a guardian ad litem did not vitiate the proceedings as the minors were represented by their natural guardian and no prejudice was shown. The appeals were dismissed, and the decree for specific performance was upheld.
Headnote
A) Specific Performance - Readiness and Willingness - Section 16(c) Specific Relief Act, 1963 - The court held that the plaintiff proved readiness and willingness to perform his part of the contract by issuing notice and depositing the amount, and the findings of the trial and appellate courts were based on evidence. (Paras 1-5) B) Contract Law - Time Essence of Contract - The court held that time was not the essence of the contract in the agreement of re-conveyance, and the plaintiff's failure to pay within the exact period did not bar specific performance. (Paras 2-5) C) Civil Procedure - Guardian ad litem - Order 32 Rule 3 CPC - The court held that the failure to appoint a guardian ad litem for minor LRs of Dhavji did not vitiate the proceedings as the minors were represented by their natural guardian and no prejudice was shown. (Paras 3-5)
Issue of Consideration
Whether the findings on readiness and willingness are based on no evidence; whether the plaintiff failed to comply with the terms of re-conveyance within the fixed time; whether non-appointment of guardian ad litem for minor LRs vitiates the proceedings.
Final Decision
Both second appeals are dismissed. The decree for specific performance passed by the trial court and confirmed by the appellate court is upheld. Civil applications also disposed of.
Law Points
- Specific performance
- Readiness and willingness
- Time not essence of contract
- Limitation
- Order 32 CPC
- Guardian ad litem
