PETITIONER: JUGRAJ SINGH AND ANOTHER Vs. RESPONDENT: LABH SINGH AND OTHERS DATE OF JUDGMENT28/11/1994 BENCH: RAMASWAMY, K. BENCH: RAMASWAMY, K. VENKATACHALA N. (J) CITATION: 1995 AIR 945 1995 SCC (2) 31 1994 SCALE (5)286 ACT: HEADNOTE: JUDGMENT:
ORDER
1.The petitioners are defendants 2 and 3. The first
defendant, Jasbir Singh, had executed an agreement of sale
dated 30-8-1984 in favour of the plaintiffs Labh Singh and
his brother Surinder Singh. The petitioners had an
agreement of sale on 4-1-1985. The plaintiffs filed the
suit against Jasbir Singh, the first defendant. All the
courts have concurrently found that the
petitioners/defendants 2 and 3 are not bona fide purchasers
for value without notice of the prior agreement dated 30-8-
1984 and accordingly, decreed the suit. Thus, this SLP.
2.It is contended for the petitioners that the trial court
having found the petitioners to be necessary parties was not
right in negativing the plea of the petitioners that Labh
Singh, plaintiff, was not ready and willing to perform his
part of the contract and that the High Court equally
committed an error of law in rejecting that plea. We find
no force in the contention.
+ From the Judgment and Order dated 31-5-1994 of the Punjab
and Haryana High Court in Regular Second A. No. 2069 of 1990
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3.Section 16(c) of the Specific Relief Act, 1963 provides
that the plaintiff must plead and prove that he has always
been ready and willing to perform his part of the essential
terms of the contract. The continuous readiness and
willingness at all stages from the date of the agreement
till the date of the hearing of the suit need to be proved.
The substance of the matter and surrounding circumstances
and the conduct of the plaintiff must be taken into
consideration in adjudging readiness and willingness to
perform the plaintiff’s part of the contract.
4.The Privy Council in Ardeshir H. Mama v. Flora Sasson1 has
held that in a suit for specific performance the averment of
readiness and willingness on plaintiff’s part up to the date
of the decree is necessary.
5.This Court in Gomathinayagam Pillai v. Palaniswami Nadar2
quoting with approval A rdeshir case 1 had held as follows:
“But the respondent has claimed a decree for
specific performance and it is for him to
establish that he was, since the date of the
contract, continuously ready and willing to
perform his part of the contract. If he fails
to do so, his claim for specific performance
must fail.”
That plea is specifically available to the vendor/defendant.
It is personal to him. The subsequent purchasers have got
only the right to defend their purchase on the premise that
they have no prior knowledge of the agreement of sale with
the plaintiff. They are bona fide purchasers for valuable
consideration. Though they are necessary parties to the
suit, since any decree obtained by the plaintiff would be
binding on the subsequent purchasers, the plea that the
plaintiff must always be ready and willing to perform his
part of the contract must be available only to the vendor or
his legal representatives, but not to the subsequent
purchasers. The High Court, therefore, was right in
rejecting the petitioners’ contention and rightly did not
accept the plea. We do not find any ground warranting
interference.
6. The SLP is accordingly dismissed.
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