JUDGMENT
Shantanu Kemkar, J.
1. This appeal by defendant is directed against the judgment and decree dated 9-12-1993 passed by the learned District Judge, Khandwa in Civil Suit No. 13-A/1988, decreeing the suit of the plaintiff for specific performance of contract.
2. The plaintiffs/respondents alleged in the plaint that defendant Smt. Godawaribai agreed to sell agricultural land owned by her admeasuring 8 acres bearing Khasra No. 424/2 (old) 177 (new) to them for consideration of Rs. 3 lacs out of this, an amount of Rs. 25,000/- was paid on 8-1-1988 towards earnest money. The sale-deeds were to be executed on or before 30th April, 1988 in favour of each plaintiffs for their portions on receiving the balance consideration of Rs. 2,75,000/-, the same to be paid at the time of the registration of the sale-deeds. It has been further averred by the plaintiffs that in spite of repeated requests, the defendant did not execute the sale-deeds. Ultimately registered notices were sent on 12-4-1988 (Ex. P-8) and 15-4-1988 (Ex. P-9) by which the defendant was called upon to execute the sale-deeds and was informed by the aforesaid notices that she should come to the office of Sub-Registrar, Burhanpur on 30-4-1988, plaintiffs remained present in the office of Sub-Registrar, Burhanpur on 30-4-1988 to get the sale deeds executed in their favour, from 11 a.m. to 5 p.m. but the defendant did not turn up. It was also averred by the plaintiffs that they were and are still ready and willing to pay the balance amount for execution of the sale-deed in their favour. Accordingly, plaintiffs filed the suit and prayed for decree for specific performance of contract.
3. In the written statement the defendant contended that she is not the sole owner of the land. Her son Pandrinath had purchased the land from his own income in her name. There was no necessity to sell the land. It was also averred by the defendant that there was no agreement of sale but the plaintiff No. 2 being known to her had offered to take her land for Banana crop on profit-sharing basis for Rs. 2500/- per acre and for this purpose to prepare the documents she went from Village Khadkod to Burhanpur with plaintiff No. 2. At Burhanpur the plaintiff No. 2 paid her only Rs. 2500/- and got the documents executed from her. On 20th February, 1988 when she came to Village Padalsa she informed her son Pandrinath about the transaction of giving of land on profit-sharing basis to plaintiff No. 2 Subhash. Next day Pandrinath contacted the plaintiff No. 2 subhash and enquired about the said transaction. Plaintiff No. 2 Subhash informed Pandrinath that defendant had agreed to sell her land to plaintiffs and for that purpose the documents have been executed. Pandrinath having come to know that the document is not for giving the land on profit sharing and the plaintiff No. 2 got executed an agreement for sale signed from his mother he sent a notice on 22-2-1988 (Ex. P-7A) to the plaintiff No. 2 alleging therein that the plaintiffs had committed fraud with defendant. The defendant accordingly prayed for dismissal of the suit.
4. The learned District Judge framed as many as 14 issues. The plaintiffs examined Gopal Rao (P.W. 1) Clerk of Sub Registrar Office, Burhanpur, Shami Ahmed (P.W. 2) Document Writer and witness of agreement, Lakshman s/o Hari (P.W. 3) witness of the agreement, Ravindra Gyani (P.W. 4) Document Writer, Subhash Patil (P.W. 5) plaintiff No. 2 and Lakshman s/o Totaram (P.W. 6) father-in-law of plaintiff No. 2. In rebuttal the defendant did not examine herself and examined her son Pandrinath (D.W. 1).
5. The Trial Court after appreciation of evidence and documents decreed the suit of the plaintiffs for specific performance of contract.
6. Heard learned Counsel for both the parties and perused the record.
7. Shri K.N. Agrawal, learned Counsel for the appellant has submitted that the Trial Court has erred in holding that the defendant entered into an agreement with the plaintiffs to sell the suit land while in fact the documents were prepared for the purposes of giving the land for cultivation of banana and for that purpose Rs. 2500/- were paid to the defendant. It was further contended that in fact the documents were concocted and should not have been relied upon. It was also contended that decree for specific performance being a discretionary relief, looking to the illiteracy of the defendant who is an old lady the Trial Court should not have passed the decree for specific performance. It was further contended that the plaintiffs having failed to prove their readiness and willingness to perform their part of the contract they are not entitled to decree for specific performance of the contract. In support of his contention the learned Counsel for the appellant has relied upon the judgment passed in the case at Ardeshir H. Mama v. Flora Sassoon, AIR 1928 Privy Council 208, Gomathinayagam Pillai and Ors. v. Palaniswami Nadar, AIR 1967 SC 868, Jugraj Singh and Anr. v. Labh Singh and Ors., AIR 1995 SC 945, Sirmul v. Smt. Annapurna Devi, AIR 2001 MP 10, N.P. Thirugnanam (D) by L.Rs. v. Dr. R. Jagan Mohan Rao and Ors., AIR 1996 SC 116.
8. Per contra Shri Virendra Verma, learned Counsel appearing for respondent Nos. 1 to 4 has supported the impugned judgment and decree and contended that in view of the evidence on record it has been duly established that the defendant had executed an agreement to sale of the land in favour of plaintiffs and received a consideration of Rs. 25,000/-. He further submitted that the story of giving the land by the defendant to the plaintiff No. 2 on profit-sharing basis has been cooked up by the son of the defendant in order to back off from the agreement. The learned Counsel for the respondents has further submitted that in view of the overwhelming evidence from plaintiff’s side, the judgment and decree is unassailable. In his support he relied upon judgment passed in the case of Sukhbir Singh and Ors. v. Brij Pal Singh and Ors., AIR 1996 SC 2510 and Pandurang Ganpat Tanawade v. Ganpat Bhairu Kadam and Ors., AIR 1997 SC 463 and A. Maria Angelena (Dead) and Ors. v. A.G. Balkis Bee, (2002) 9 SCC 597.
9. During the pendency of appeal defendant/appellant Smt. Godawaribai died and in her place name of her son Pandrinath has been substituted.
10. In order to appreciate the rival submissions of the parties, it would be apposite to refer to the pleadings and evidence of the parties. Subhash (P.W. 5)/plaintiff No. 2 in his deposition has stated that having come to know that defendant wants to sell her land he, his brother plaintiff No. 1, his brothers in law, plaintiff Nos. 3 and 4 has decided to purchase the same. In order to negotiate about the same he along with his father-in-law Laxman s/o Totaram (P.W. 6) went to the house of defendant. On their way, Pandrinath (D.W. 1) son of the defendant met them. He informed Pandrinath about his intention to purchase the land. Pandrinath called one Laxman s/o Hari (P.W. 3) a labourer of the village who was doing the job of digging a well at the farm of the defendant to accompany him. After reaching to the house of defendant they started the talks about the sale with Pandrinath in the presence of the defendant. Initially Pandrinath was demanding Rs. 4 lakhs towards the price of the land but subsequently he agreed for Rs. 3 lakhs. Therefore, it was agreed that the earnest money will be paid at Burhanpur when they will execute the agreement of sale. As agreed on 8-1 -1988 the defendant and her son Pandrinath came to his Village Khadkod from where they all went to Burhanpur. It was further deposed by Subhash (P.W. 5) that Rs. 25,000/- were paid to the defendant as earnest money and an agreement to sale the land (Ex. P-6) was executed. Defendant put her thumb impression in the presence of witnesses Shami (P.W. 2) and Laxman (P.W. 3). An affidavit (Ex. P-7) was sworn by the defendant before the Tehsildar for the purpose of submitting it to the Income Tax Department. As per agreement (Ex. P-6) the registration of the sale deed was to be done by or before 30-4-1988. However, in spite of his repeated requests the defendant did not execute the registration of the sale deed. She was influenced by Pandrinath and his in-laws for not executing the same. Ultimately notices dated 12-4-1988 and 15-4-1988 (Ex. P-8 and Ex. P-9) were sent to the defendant and she was directed to execute the sale-deed and for that purpose she was asked to remain present in the office of Sub Registrar on 30-4-1988. He along with other plaintiffs attended the said office on 30-4-1988 and remained present there from 11.00 a.m. to 5 p.m. with the balance amount of the transaction, for payment to the defendant but she did not turn up. Subhash (P.W. 5) further deposed that he filed an objection (Ex. P-1/C) on 30-4-1988 in the office of Sub Registrar, by depositing the requisite fee of Rs. 10/- vide receipt (Ex. P-2). It was denied by Subhash (P.W. 5) in his deposition that the land was taken by them on profit-sharing basis. The evidence of Subhash (P.W. 5) stands fully corroborated by the evidence of Gopal Rao (P.W. 1), Shami Ahmed (P.W. 2), Lakshman s/o Hari (P.W. 3) and Lakshman s/o Totaram (P.W. 6).
11. In rebuttal the defendant did not examine herself. Her son Pandrinath (D.W. 1) has admitted that there is land in the name of his mother Godawaribai at Village Khadkod. On 20-2-1988 Godawaribai informed him that she has given her land for sowing crop of banana to Subhash (P.W. 5) for Rs. 2500/- on which he objected and contacted Subhash (P.W. 5) and told him to lake back Rs. 2500/-. Subhash (P.W. 5) informed him that in fact an agreement of sale has been executed by Godawaribai in their favour and as an earnest money he has paid Rs. 25,000/- to Godawaribai. On this he sent a notice to Subhash on 22-2-1988 (Ex, P-7/A).
12. On appreciation of this evidence we find that the evidence of Subhash (P.W. 5) stands fully corroborated. Agreement (Ex. P-6) has been executed in the presence of witnesses Lakshman (P.W. 3) and Shami Ahmed (P.W. 2). Both these witnesses fully support the case of the plaintiffs. They deposed that the agreement to sale (Ex. P-6) was executed by the defendant on receiving earnest money of Rs. 25,000/- out of total agreed price of Rs. 3 lacs for outright sell of the land. The execution of affidavit (Ex. P-7), also corroborates the plaintiff’s version that an agreement to sale the land was executed between the plaintiffs and the defendant. The defendant has come forward with a case that this document was executed by misrepresenting her that it is executed for giving the land on profit-sharing basis. The Trial Court has rightly disbelieved this story. We find that there appears no reason for defendant in going to Burhanpur to receive amount of Rs. 2500/- as alleged by her for executing documents in the nature of giving land on profit-sharing. She has not come forward to contradict the evidence adduced by the plaintiffs. On the other hand from the evidence on record we find that there is ample evidence to hold that the documents (Ex. P-6 and Ex. P-7) were executed by the defendant knowing that the same arc executed for sell of her land and she received earnest money of Rs. 25,000/-. The documents are executed in the presence of the witnesses who by their evidence supports the plaintiffs case. The evidence on record clearly proves that the defendant went to Burhanpur to execute the agreement for sale of the land and for receiving the earnest money of Rs. 25,000/- as agreed between them. The judgment relied upon by the learned Counsel for the appellant in the case at Simmal v. Smt. Annapurna (supra) has no application to the facts of this case. In that case the plea of Smt. Annapurna was that her signatures were obtained by the plaintiff on blank papers and she had not read the sale-deed which was executed and the plaintiff referred her as mother and was enjoying her confidence. In the present case it is proved that the defendant travelled from her Village Khadkod to Burhanpur and executed the sale deed in the presence of independent witnesses and further sworn an affidavit before the Tehsildar. She failed to appear in the witness box though as per her son Pandrinath (D. W. 1) she was able to understand, speak and walk and keeping good health. In view of this the finding of the Trial Court on this point appears to be just and we confirm the same.
13. Coming to the next point raised by the learned Counsel for the appellant with regard to failure of plaintiffs to prove their readiness and willingness with regard to performance of their part of contract, we find that no such plea was ever taken by the defendant in their written statement and, therefore, rightly no issue was framed by the Trial Court. In the memo of appeal filed before this Court, no such ground finds place. In view of this, the appellant is not entitled to raise this point by way of arguments and the same though not required to be answered, still since various judgments have been cited by both the Counsel appearing for respective parties, we deem it proper to deal with it in the interest of justice. From the case law cited by the Counsel we find that it is well settled that the readiness and willingness to perform the contract have to be pleaded and proved and the conduct of the parties and attending circumstances have to be seen to infer readiness and willingness. In the present case we find that the plaintiffs have pleaded about their readiness and willingness to perform the contract. It is also proved by the plaintiffs that they served notices on 12- 4-1988 and 30-4-1988 (Ex. P-8 and Ex. P-9) and remained present with cash on 30-4-1988 in the office of Sub Registrar, the presence is found to be proved by their objection dated 30-4-1988 (Ex. P-16) filed in the said office. Thus, their conduct of remaining present with money for the execution of the sale deed in the office of Sub Registrar proves their readiness and willingness to perform their part of contract. In Sukhbir Singh v. Brijpal Singh (supra), the Supreme Court while dealing with somewhat identical situation has held as under :-
“3. Shri Manoj Swarup, learned Counsel for the petitioners contended that the suit is not in conformity with Forms 47 and 48 of the Appendix AA of the Code of Civil Procedure [Code] as amended by the High Court of Allahabad. The respondents have not pleaded, as enjoined in Section 16(c) of the Specific Relief Act, 1963 (for short, “the Act”) that the respondents had ready money for getting the sale deed executed. The decrees of the Appellate Court as well as of the High Court are, therefore, bad in law. We find no force in the contentions.
4. In Paragraphs 5, 9 and 10 of the plaint the respondents have in substance pleaded that they had been and were still willing to perform their part of the agreement and the defendants did have notice in that behalf. It is seen that averments made in the above paragraphs are in substance as per Forms 47 and 48 prescribed in Appendix AA of the Code as amended by the High Court. What requires to be considered is whether the essential facts constituting the ingredients in Section 16(c) of the Act were pleaded and that found mentioned in the said Forms do in substance point of those facts. The procedure is the hand-maid to the substantive rights of the parties. It would, therefore, be clear from a perusal of the pleadings and the forms that the averments are consistent with the Forms. When the respondents had pleaded and proved by the Sub Registrar’s endorsement as per paper No. 41/C that the respondents were present in the office of the Sub Registrar for having the sale deed executed and registered by the petitioners, it would be explicit that the respondents were ready and willing to perform their part of the agreement. The facts that the petitioners did not attend the office would prove positively that the petitioners had avoided execution of the sale deed.”
14. Applying the ratio of the Supreme Court the conduct and the attending circumstances of the plaintiffs establishes their readiness and willingness to perform their part of contract. Thus, in view of the above, we hold that the plaintiffs have proved their case. The judgment of the Trial Court is perfectly legal and is based on sound appreciation of evidence and, therefore, needs no interference. Accordingly, the appeal being of no merit is dismissed. Parties shall bear their own costs of the appeal.