{"id":252960,"date":"2000-08-02T00:00:00","date_gmt":"2000-08-01T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/ajaib-singh-ors-vs-smt-tulsi-devi-on-2-august-2000"},"modified":"2016-10-07T01:51:44","modified_gmt":"2016-10-06T20:21:44","slug":"ajaib-singh-ors-vs-smt-tulsi-devi-on-2-august-2000","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/ajaib-singh-ors-vs-smt-tulsi-devi-on-2-august-2000","title":{"rendered":"Ajaib Singh & Ors vs Smt. Tulsi Devi on 2 August, 2000"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Ajaib Singh & Ors vs Smt. Tulsi Devi on 2 August, 2000<\/div>\n
Author: S N Variava<\/div>\n
Bench: V.N. Khare, J., S.N. Variava, J.<\/div>\n
           PETITIONER:\nAJAIB SINGH & ORS.\n\n\tVs.\n\nRESPONDENT:\nSMT.  TULSI DEVI\n\nDATE OF JUDGMENT:\t02\/08\/2000\n\nBENCH:\nV.N. Khare, J. & S.N. Variava, J.\n\n\n\n\nJUDGMENT:\n<\/pre>\n
S.  N.\tVariava, J.\n<\/p>\n
    This  Appeal  is against the Judgment dated 27th  April,
\n1993  passed  by  the Division Bench of the  High  Court  of
\nDelhi.\t At the beginning of his submission learned  counsel
\nfor  the  Appellants very fairly stated that the  Appellants
\nare  not  challenging  grant  of  specific  performance\t and
\ntransfer of title to the Respondent in respect of block 67B.
\nThis  Appeal  is  therefore confined to the  potion  of\t the
\nimpugned  Judgment  dealing with Block 67A.  Briefly  stated
\nthe facts are as follows :  One Sunder Singh was a displaced
\nperson\tfrom  Pakistan.\t In 1955 the Government,  under\t the
\npolicy\tof rehabilitation allotted to him block numbers 67-A
\nand  67-B in Malviya Nagar, New Delhi-110017.  In  1957\/1958
\nthe  Government offered to Sunder Singh a chance to purchase
\nthe properties allotted to him on payment of the cost of the
\nproperties as fixed by the Government, with arrears of rent,
\nif  any,  either in lump sum or by annual installments.\t  In
\nrespect\t of  plot M-67A and M-67B, the Government fixed\t the
\npurchase  price at Rs.\t8080\/-.\t In 1959 the Government gave
\nto  Sunder Singh a final demand notice to make payment under
\nthe  Scheme.   Sunder Singh did not have the money  to\tmake
\npayment\t to the Government.  He, therefore, entered into  an
\nAgreement   dated  22nd\t June,\t 1959  with  the  Respondent
\n(herein).   The Agreement recites the fact that Sunder Singh
\nhad  been allotted the above two blocks and that he has been
\ngiven an offer by the Government to purchase these plots and
\nthat he is not in a position to pay its purchase price.\t The
\nAgreement  recites that the Respondent was eager and willing
\nto  cooperate  with  Sunder Singh and purchase half  of\t the
\nproperty,  namely, block 67B at a price of Rs.\t5,000\/-\t and
\narrears\t of  rent  due\tto the\tGovernment.   The  Agreement
\nrecites\t that  the  Respondent was to make  payment  to\t the
\nGovernment  either  in lump sum or by instalments or in\t any
\nform  acceptable  to the Government.  The Agreement  recites
\nthat  a sum of Rs.  3,000\/- is being paid to Sunder Singh to
\nenable\thim to make payment of the first installment to\t the
\nGovernment  and that this amount was to be treated as a loan
\nto Sunder Singh.  The relevant clauses of the Agreement read
\nas  follows :  “1.  That the entire cost of the quarter\t and
\narrears or rent shall be deposited or caused to be deposited
\nwith  the government of India by the second party either  in
\nlump  sum or by instalments or by offering claims or by\t one
\nor more of these modes at the discretion of the second party
\nor  Shri  D.N.\tKaul husband of the second party.  The\tsaid
\npayments  shall\t be made in the name of the first party\t and
\nall  other steps shall be taken by both the parties to\thave
\nthe  ownership rights of the quarter in question transferred
\nin  favour  of the first party and registration effected  in
\nhis  favour.   The  first  party   shall  refund  a  sum  of
\nRs.3,000\/- only to the second party or her husband Shri D.N.
\nKaul,  whosoever,  shall  demand the same,  in\tfive  yearly
\ninstalments  of Rs.600\/- each year payable on or before\t the
\nfirst day of January each year.\t The balance of the purchase
\nprice  paid as also the arrears of rent paid shall be deemed
\nand  treated as advance payment of purchase price paid by or
\non  behalf  of the second party to the first party  for\t the
\nportion\t 67B  agreed to be sold and transferred to  her\t and
\nshall represent the full and final consideration therefor.\n<\/p>\n
    Xxx xxx xxx<\/p>\n
    2.\t That  in case the second party choses to  associate
\nsome claiment in the matter of purchase of the said property
\nshe  shall be free to do so at her absolute risk and choice.
\nThe  first  party  shall  do all that may  be  necessary  or
\ndemanded  on  him in the matter of effective association  of
\nthe  said claiment with him and the ultimate transfer of 67B
\nin favour of the second party jointly with the said claiment
\nor serverally.\n<\/p>\n
    3.\t That on the transfer of ownership rights in respect
\nof  the\t said quarter in favour of the first party he  shall
\nimmediately  transfer or cause to be transferred in  respect
\nof the portion 67B as detailed hereinbefore in favour of the
\nsecond\tparty  for  the above referred to  consideration  of
\nRupees five thousand and the amount of arrears of rent to be
\npaid  to Government or total amount paid on account of\tcost
\nof 67A & B and arrears of rent in full and final settlement,
\nwhichever  be  less,  irrespective of the fact\twhether\t the
\namount\tis  paid in cash or in verified claims or partly  in
\none  or partly in the other form.  The said sum shall be the
\nfull  and  final  and adequate consideration  for  the\tsaid
\nportion of the property.\n<\/p>\n
    4.\t That  the  amount  paid or caused  to\tbe  paid  or
\ndeposited  on account of purchase price and arrears of\trent
\nin  respect of the above quarter 67 A&B with the  Government
\nof  India shall be treated as the first charge of the second
\nparty  and  her\t husband  the said Shri D.N.   Kaul  on\t the
\nproperty  so  long as 67B is not effectively transferred  to
\nthe 2nd party and Rs.3,000\/- repaid to them.\n<\/p>\n
    5.\tThat if the first party fails to refund the said sum
\nof  Rupees three thousand to the second party as  stipulated
\nand  if\t anyone instalment due remains unpaid after 30\tdays
\nR.A.D.,\t notice in that behalf the entire sum of  Rs.3,000\/-
\nor  balance due shall become due at once and on the  failure
\non  the part of the first party to repay the same within  15
\ndays  next,  he\t shall\ttransfer the other  portion  of\t the
\nproperty  namely,  67A also to the second party or the\tsaid
\nShri D.N.  Kaul or her nominee for the said consideration of
\nRs.3,000\/-  and\t give  her\/him or their nominee\t vacant\t and
\npeaceful  possession  thereof  and have a deed\tof  transfer
\nexecuted  and  registration duly effected before the  proper
\nregistering authority.\n<\/p>\n
    Xxx xxx xxx<\/p>\n
    8.\t That in case the first party shall fail to  execute
\nhis  part  of  the agreement and fail  to  transfer  quarter
\nNo.67B\tto  the\t second party and execute sale deed  in\t her
\nfavour and have it duly registered he shall be liable to pay
\nthe  second  party a sum of rupees five thousand,  plus\t the
\naforesaid  amount  paid or caused to be paid by\t the  second
\nparty  to  the Government in respect of the said quarter  on
\naccount of purchase price and arrears of rent and the monies
\nspent  on  improvement and additions, as liquadated  damages
\nwithout\t prejudice to the second party’s right to demand the
\nspecific  performance  of  this agreement and  to  have\t the
\nspecified  share  i.e.\t Quarter  No.\t67B  transferred  to
\nherself\t compulsorily  through\ta Court of  Law.   The\tsame
\nprovisions  shall  apply if and when the right to  have\t the
\nquarter No.67A transferred in favour of second party or Shri
\nD.N.   Kaul  arises  and  the first party  fails  to  do  so
\neffectively.\n<\/p>\n
    9.\t That  in case the allotment in favour of the  first
\nparty  in  respect of the said quarter is cancelled for\t any
\nreason\t whatsoever  and  the\tpurpose\t of  this  agreement
\nfrustrated  the first party shall refund to the second party
\nany  amount  paid or caused to be paid to the Government  in
\nrespect\t of  the  said quarter and cost of  improvement\t and
\nadditions  made\t by the second party within three months  of
\nthe  said fact coming to the second party’s notice  together
\nwith interest @ 6% per annum.”\n<\/p>\n
    Thus  under this Agreement the Respondent had taken\t the
\nobligation  of making payment to the Government the cost  of
\nthe  quarters,\tinterest  thereon and the arrears  of  rent.
\nAlso  the Respondent was put in possession of block 67B.  It
\nis  clear  that the transfer of ownership right\t could\tonly
\ntake  place  when  the said Sunder Singh became\t the  owner.
\nUnder  his Agreement with the Government Sunder Singh  could
\nonly  become  owner if the cost of the flat and\t arrears  of
\nrent  were paid in full.  Therefore transfer of title  could
\nonly  take  place  if Respondent performed  her\t obligations
\nunder the Agreement and paid the entire cost of flat and all
\narrears\t of  rent.  It is also to be seen that Sunder  Singh
\nwas  only required to repay a sum of Rs.  3,000\/-.  This  is
\nbecause\t the  balance amount of was to be consideration\t for
\ntransfer  of block 67B in favour of the Respondent.  On 30th
\nDecember,  1959, the Sunder Singh entered into an  Agreement
\nwith  the Government.  This Agreement provided that the cost
\nof the plot was Rs.  8080\/-, out of which a sum of Rs.1616\/-
\nhad already been received on 22nd June, 1959.  The Agreement
\nprovided  that\tthe  balance was to be paid  in\t installment
\nalong  with interest.  Clause (1) of the Agreement  provides
\nthat  the  balance  of the purchase price was a sum  of\t Rs.
\n8108\/7\tpaisa  and  that there was to be  interest  on\tthis
\namount.\t The Agreement provides that the same was to be paid
\nin 7 yearly installments, the first installment being due on
\n22nd  June,  1960.  The Agreement also provided that if\t the
\ndefault\t was committed in payment of any instalment then the
\nGovernment  could  by notice in writing forthwith  determine
\nthe  Agreement and resume possession of the premises.\tThus
\nthe  Respondent\t was to pay a sum of Rs.  8108\/7 paisa\twith
\ninterest thereon in 7 yearly installments to the Government.
\nAs  the\t first instalment was to be paid on 22nd June,\t1960
\nthe  last instalment would have to be paid on or before 22nd
\nJune,  1966.   Sunder Singh died on 20th October, 1964.\t  He
\nwas  survived  by  his\twife Gurnam  Kaur  and\tthe  present
\nAppellants.  After the death of Sunder Singh both the Blocks
\nwere  allotted to his wife.  It appears that there was\tsome
\ndispute\t between  Gurnam  Kaur\t and  the  Respondent.\t The
\nRespondent  filed  Suit\t No.  328 of 1965  for\ta  permanent
\ninjunction   against  Gurnam  Kaur   restraining  her\tfrom
\ndisposing  of  the property.  Thereafter on 1st June,  1968,
\nthe  Respondent\t filed a Suit No.  14 of 1968  for  specific
\nperformance  of\t the Agreement dated 22nd June, 1959.\tThis
\nSuit  was filed under Order 33 Civil Procedure Code  praying
\nthat she be allowed to sue in forma pauparise.\tIn the Suit,
\nafter setting out the above mentioned history, it is averred
\nas follows:- “Shri Sunder Singh before his death did not pay
\nany  instalments  on account of the loan advanced to him  as
\nmentioned  herein before which under the agreement  entitles
\nthe  plaintiff to claim the transfer of House No.M\/67-A also
\nin  her favour on payment of the money due to the Government
\n(emphasis supplied).\n<\/p>\n
    Thus  it  is  to  be seen that  even  according  to\t the
\nRespondent\/Plaintiff  she  is  entitled to transfer  of\t the
\nblock  No.   67-A, only on payment of all money dues to\t the
\nGovernment.   Thereafter  in  para 10 of the plaint,  it  is
\nstated that under the aforesaid Agreement, the Plaintiff has
\npaid  all  sums due to the Government.\tIt is  obvious\tthat
\nsuch  an averment is made because the Respondent knows\tthat
\nunless\tand until all sums are paid by her to the Government
\nthere  could  not be specific performance of  the  Agreement
\ndated  22nd June, 1959 by transferring block 67A in favor of
\nthe  Respondent.   A  reading of further  averments  in\t the
\nPlaint\tmake  it clear that the\t Respondent\/Plaintiff  knows
\nthat  she  has\tnot made payment of all amounts due  to\t the
\nGovernment.  This is clear from the fact that the Respondent
\nthen  goes on to aver that the heirs of Sunder Singh are not
\ndelivering  the challans in respect of the payment due after
\nthe  last  payment  made by her and that she  is  ready\t and
\nwilling\t to  fulfil the terms of contract in respect of\t any
\nresiduary  obligations.\t  In para 13(a) it is  averred\tthat
\nsince  the entire sale price of 67-A and 67-B had been paid,
\nthe  Defendants\t were  bound to convey the property  to\t the
\nPlaintiff.   In\t para  14, it is then averred as  follows  :
\n“14.   The cause of action accrued on 2.12.65 when the\tlast
\npayment was made and the plaintiff expressed her willingness
\nto pay any other sum due to the Government on behalf of Shri
\nSunder Singh or the defendant no.1.”\n<\/p>\n
    The\t Plaint\t was amended on 28th of October, 1971.\t The
\naverment that the last payment was made on 2.12.1965 has not
\nbeen  changed.\t Therefore the Respondent\/Plaintiff came  to
\nCourt and maintained that she had not made any payment after
\n2nd  of\t December, 1965.  It must be mentioned that  in\t the
\nPlaint no details or particulars are given as to when and on
\nwhat  dates  and in what amounts payments were made  by\t the
\nRespondent\/Plaintiff.\t To  be\t  remembered  that  specific
\nperformance  could  only be granted provided that the  party
\nasking\tfor  specific performance has always been ready\t and
\nwilling\t and has performed their part of the obligation.  As
\nseen  above  under the Agreement the Respondent was to\tmake
\npayment of the costs of the block and arrears of rent to the
\nGovernment.  This included not just the sum of Rs.8108\/- due
\ntowards\t the  costs of the blocks and interest\tthereon\t but
\nalso  the arrears of rent.  If the Respondent has  committed
\nbreaches  and did not pay the amounts to the Government then
\nthe  Government\t may or may not have revoked  the  Agreement
\ndated  30th December, 1959 and\/or forfeited all amounts\t and
\nrecovered possession.  If there is non payment then it could
\nnot  be\t said that the Respondent had been always ready\t and
\nwilling\t and had always performed her part of the Agreement.
\nThe  fact that the Government did not forfeit would not have
\nany bearing on the factum of Respondent not having performed
\nher  obligations  under the Agreement.\tThe wife  of  Sunder
\nSingh  and  other  heirs filed a written  statement  raising
\nvarious contentions with which, we are really not concerned.
\nHowever\t in  para  6 of the written statement  they  made  a
\ncategoric statement that after the death of Sunder Singh the
\nRespondent  had\t not paid any amounts to the Government\t but
\nthat  the  wife, Gurnam Kaur, had deposited all the  amounts
\nwith  the Government.  Respondent\/Plaintiff did not get\t any
\nIssue  raised  on  this\t claim of  the\tAppellants.   To  be
\nremembered   that  the\t Respondent\/Plaintiff  was   herself
\nclaiming  that\tthe  last payment had been made\t by  her  on
\n2.12.1965.   The  trial court, therefore, did not raise\t any
\nIssue\ton   the  question  as\tto  whether   or   not\t the
\nRespondent\/Plaintiff had paid all amounts to the Government.
\nHowever,  an  Issue  was  raised as to whether\tor  not\t the
\nAgreement  could  be specifically performed.   In  answering
\nthis Issue it would have been necessary for the Court to see
\nnot  just readiness and willingness, at all stages, but also
\nwhether\t in fact the Respondent\/Plaintiff had performed\t her
\npart  of the to Agreement.  In this context the question  of
\npayments  m  ade  the Government under the Agreement  was  a
\nvital  aspect.\t Even  though no specific Issue\t was  raised
\nevidence  has  been led on this aspect.\t The husband of\t the
\nRespondent  was\t examined  as  PW5.   In  his  evidence\t he,
\ninter-alia,  states  as\t follows:  The\tbalance\t amount\t in
\nrespect\t of property No.  67A and 67B was to be deposited on
\nbehalf\tof Sunder Singh with the Deptt.\t Of  Rehabilitation,
\nJam  Nagar, New Delhi.\t.The entire amount in  respect
\nof  67A has been deposited and there remains any balance  we
\nwere  ready  to\t pay  the  same\t and  still  ready  to\tpay.
\n.We  have  receipts of the amounts deposited  by  us.
\nThus  even in evidence the only statement is that the entire
\namount in respect of 67A had been deposited.  Payment had to
\nbe  made for both 67A as well as 67B.  There is no statement
\nthat  full  payment is made.  The fact that the\t husband  of
\nRespondent  deposes  that they are ready and willing to\t pay
\nthe  balance also shows that to their knowledge all  amounts
\ndue have not been paid by them.\t Thus even in evidence there
\nis  an\tadmission  that\t the  entire  amount  had  not\tbeen
\ndeposited  by the Respondent with the Government.  On behalf
\nof  the\t Respondent\/Plaintiff one S.B.\tLal, Upper  Division
\nClerk  of the Government was examined as PW-4.\tHe had\tbeen
\nexamined to show that full payments had been made in respect
\nof  blocks  67-A and B.\t This witness, amongst other  things
\npoints\tout  that  towards  the cost of the flat  a  sum  of
\nRs.2221.10  was\t deposited  on 25th March, 1968.   In  cross
\nexamination  he is asked whether he can tell the name of the
\npersons\t who had deposited the amounts.\t He states that\t the
\namount was deposited in the name of the same person in whose
\nfavour\tthe  sale was to take place.  This evidence  coupled
\nwith the admitted position that the last payment was made by
\nthe  Respondent\/Plaintiff  on  2nd  December  1965  and\t the
\nevidence  of  Respondents  husband (set out  above)  clearly
\nestablished  that the Respondent\/Plaintiff had not performed
\ntheir  obligation  and\thad  not made all  payments  as\t was
\nrequired  to  be  done\tunder\tthe  Agreement.\t  Under\t the
\ncircumstances  it could never have been said that they\twere
\nalways\tready  and  willing  to perform their  part  of\t the
\nAgreement.   This aspect unfortunately was lost sight off by
\nthe  trial court.  In spite of the clear evidence on  record
\nto  show  that\tthe Respondent\/Plaintiff had  not  performed
\ntheir  part  of the Agreement, the trial court\tdecreed\t the
\nsuit  on  30th of September, 1978.  The trial Court  granted
\nspecific  performance  not only in respect of Block 67B\t but
\nalso  for 67A.\tThe heirs of Sunder Singh then filed Regular
\nFirst  Appeal No.123 of 1981 in the Delhi High Court.\tThis
\nwas  dismissed\tby the impugned Judgment on 27th  of  April,
\n1993.\tThe  portion of the impugned Judgment  dealing\twith
\nthis aspect reads as follows:- “The main ground urged by the
\nlearned\t counsel for the appellant Shri R.L.  Tandon  before
\nus  was\t that  on a proper consideration  of  the  agreement
\nrespondent-  plaintiff\tfailed\tto perform her part  of\t the
\nagreement  and was not entitled to invoke the provisions  of
\nSpecific Relief Act<\/a> in her favour.”\n<\/p>\n
    In\trejecting  this argument the High Court has held  as
\nfollows\t  :    “It   is\t the\tadmitted   case\t  that\t the
\nrespondent-plaintiff  made  payments  on various  dates\t and
\naccording  to Shri Tandon the respondent made payment of Rs.
\n8240.04\t and  Rs.  255.59 till 2nd December,  1965.   Though
\naccording  to  the respondent she made payments, yet in\t the
\nsuit  the  total cost of the property was not mentioned\t but
\nduring\tthe hearing of the appeal counsel for the respondent
\nfiled  C.M.P.\tNo.   346 of 1993.  Notice of the  same\t was
\nissued\tto the counsel for the appellant who filed reply  to
\nthe  said  application.\t This application was filed  by\t the
\nrespondent  to clarify the controversy raised in relation to
\nthe  amount  of\t Rs.   2221.10 paid  on\t 25th  March,  1968.
\nAccording  to the counsel for the appellant the said  amount
\nwas  paid  by the appellant and according to the  respondent
\nthe  amount was not paid in 1968 but in 1965 that too by the
\nrespondent.   According to the respondent there is some over
\nwriting\t which\tshows  that the number ‘5’ was\twritten\t and
\nthereafter ‘8’ was over written on the same which makes 1965
\nto  1968.  We think that at this stage it is not material to
\ngo into the controversy as in the written statement filed by
\nthe  appellants\t no  where  stated that they  had  made\t the
\npayment\t of  the  said amount.\tMoreover,  if  we  carefully
\nexamine\t the  agreement to sell which is Ext.P1\/1 which\t was
\ndrafted by Shri S.  Watel, Advocate who was also examined as
\nP.W.1.\tShri Watel in his testimony has stated that the said
\nagreement  was\tdrafted at the instance of Sunder Singh\t and
\nplaintiff.   The said agreement specifically states that the
\nsaid  Sunder Singh was not in a position to pay the purchase
\nprice  of  the said quarter or the first instalment  thereof
\nand  after Sunder Singh received the final demand notice for
\npayment\t of the first instalment to the Government with\t the
\nwarning\t that in case of non- payment the quarter would\t not
\nbe  transferred to him with the consequence that it will  be
\nauctioned  and\tsold  to  a third  party.   Further  on\t the
\nagreement  says that for the aforesaid reasons Sunder  Singh
\nwanted to associate someone with him for the purchase of the
\nsaid  quarter in order to be able to continue to occupy\t the
\nsame  and own at least a part of the said property.  It\t was
\nfurther\t stipulated  in\t the agreement that  respondent\t was
\neager  and  willing  to\t cooperate  with  Sunder  Singh\t and
\npurchase  half\tof  the premises, namely,  M\/67-B  with\t its
\nkitchen, bath, lavatory and a common wall between m\/67-A and
\nM\/67-B\tat  a price of Rs.5000\/- and arrears of rent due  in
\nrespect\t of the property to be paid to the Government in the
\naccount\t of  Sunder  Singh in cash.   Sunder  Singh  further
\nassured that he was entering into the said agreement for the
\nbetterment  of his family and out of necessity.\t In view  of
\nthe unequivocal terms of the agreement and in the absence of
\nany  specific  plea raised in the written statement  by\t the
\nappellant  that\t they had paid the aforesaid amount  of\t Rs.
\n2221.10 it is too late in the day for them to take up such a
\nplea.”\n<\/p>\n
    At\tthis  stage  itself it must be noted that  the\tHigh
\nCourt  has fallen in error in observing that in the  written
\nstatement  there is no specific plea regarding payment\tmade
\nby the heirs of Sunder Singh.  As has been pointed out above
\nit  has\t been specifically pleaded that after the  death  of
\nSunder Singh (i.e.  in 1964) the Appellants have been making
\npayment to the Government.  Of course they do not state what
\namount\twas  paid or that Rs.  2221.10 was paid.   But\tthen
\nRespondent\/Plaintiff  has also nowhere set out what payments
\nwere  made  by\ther and when.  To be  remembered  upto\tthis
\nstage,\texcept\tfor making vague statement that amounts\t had
\nbeen made paid, Respondent\/Plaintiff had given no details or
\nparticulars  of\t payments alleged to have been made by\ther.
\nUpto  this  stage the Respondent\/Plaintiff  was\t maintaining
\nthat the last payment made by her was on 2nd December, 1965.
\nThe  controversy,  referred  to\t by the\t High  Court,  arose
\nbecause\t in the course of their arguments and in the written
\nsubmission  Appellants\trelied on the deposition of  PW4  to
\nshow  that a sum of Rs.\t 2221.10 had been paid on 25th March
\n1968  for the cost of the flat.\t It was submitted that as it
\nwas  an admitted position that the last payment made by\t the
\nRespondent   was   on  2nd   December  1965,  this   clearly
\nestablished  that  all\tpayments had not been  made  by\t the
\nRespondent\/Plaintiff.\tThis  had  a direct bearing  on\t the
\nquestion  of performance by the Respondent\/Plaintiff and the
\nquestion  of  readiness\t and willingness.  If  correct\tthis
\nwould  establish that the Respondent\/Plaintiff had failed to
\nperform\t her  part  of the Agreement and was  therefore\t not
\nentitled  to specific performance.  The Respondent\/Plaintiff
\nthen  filed  CMP  No.\t346 of 1993.  In this  CMP,  it\t was
\naverred\t as  follows :\t“4.  That it is submitted  that\t the
\napplicant\/respondent  varily believing that there might have
\nbeen  some typing error in the paper book as supplied by the
\nappellants,  had applied for inspection of the file that was
\ninspected  on 11.2.1993.  Inspection of the file showed that
\nin  the\t original statement of PW-4 recorded as\t on  6.9.73,
\nthere  is an evidently on over writing in ink in the floures
\nwhich  has not been initialled by any authorised person\t and
\nit  is\tevident that the figure “5” in the original copy  of
\nthe testimony of PW-4 has been changed to “8”.\n<\/p>\n
    5.\t That it is thus evident that there is some possible
\ntampering  of the record.  The respondent is not to gain  by
\nthe  said change of date.  The over writing shows that first
\nthe  number “5” was written and thereafter “8” over  written
\non the same.\n<\/p>\n
    6.\t That  it  is submitted that before  coming  to\t any
\nconclusion,  either  way, it would be necessary and also  in
\nthe  interests\tof  justice  for   this\t Hon’ble  Courts  to
\nadjudicate  upon  the said fact.  It is also submitted\tthat
\nprobability  of\t the date being 25.3.1965 is  in  consonance
\nwith  the  stand  of  the plaintiff in\tpleadings,  and\t her
\ntestimony  through PW-5 and also the deposition of the DW-2,
\nall  of\t which lead in the irresistible conclusion that\t the
\nsaid  date has to be 25.3.65 instead of 25.3.1968  (emphasis
\nsupplied).\n<\/p>\n
    7.\t That accordingly, the present application is  being
\nfiled  before  your  Lordships, so that this fact  could  be
\nnoted  by this Hon’ble Court, while considering the case and
\nthe  case  be decided on the basis of the said date  in\t the
\ntestimony  of PW-4 being read as 25.3.65 instead of 25.3.68.
\nFor  this, appropriate directions will have to be issued  by
\nthis Hon’ble Court.”\n<\/p>\n
    Thus  it is to be noted that realising that the evidence
\nof  PW-4  read with the case in the Plaint  would  establish
\nthat  the last payment had been made by Appellants and\tthat
\nthis  would clearly show that she had not performed her part
\nof  the\t Agreement  and\t thus\tnot  entitled  to   specific
\nperformance the Respondent\/Plaintiff initially tries to make
\nout  a case that there was typing error in the paper book;
\nthat  there was some over writing in the original testimony
\nof  PW-4 and that there is some possible tampering of  the
\nrecord.\t Most importantly it is averred that probability of
\nthe  date being 25.3.1965 is in consonance with the stand of
\nthe  Plaintiff in pleadings.  Thus even at this stage it  is
\nbeing  maintained  that no payments were made after  2nd  of
\nDecember,  1965.   To be noted that at this stage it is\t not
\nbeing\tclaimed\t that  any  payments   were  made   by\t the
\nRespondent\/Plaintiff  after  1965.  The High Court has\talso
\nnoted  the  submissions made before it.\t They have been\t set
\nout  above but necessitate repetition:\t“Though according to
\nthe  respondent she made payments, yet in the suit the total
\ncost  of  the  property\t was not mentioned  but\t during\t the
\nhearing\t of  the  appeal counsel for  the  respondent  filed
\nC.M.P.\t No.346\t of 1993.  Notice of the same was issued  to
\nthe  counsel  for the appellant who filed reply to the\tsaid
\napplication.   This application was filed by the  respondent
\nto  clarify the controversy raised in relation to the amount
\nof  Rs.\t 2221.10 paid on 25th March, 1968.  According to the
\ncounsel\t for  the appellant the said amount was paid by\t the
\nappellant and according to the respondent the amount was not
\npaid  in  1968\tbut  in 1965 that  too\tby  the\t respondent.
\nAccording to the respondent there is some over writing which
\nshows that the number “5” was written and thereafter “8” was
\nover written on the same which makes 1965 to 1968.  We think
\nthat  at  this\tstage  it is not material  to  go  into\t the
\ncontroversy  as\t in  the  written  statement  filed  by\t the
\nappellants no where stated that they had made the payment of
\nthe said amount.”\n<\/p>\n
    This  shows\t that even during arguments before the\tHigh
\nCourt  it  was maintained that this payment of Rs.   2221.10
\nwas  made  in  1965  by the  Respondent.   Even\t during\t the
\narguments  it  had been submitted that the date 1968  was  a
\nmistake\t and  that  originally number “5”  was\twritten\t and
\nthereafter  it was over written with “8”.  If Respondent had
\nmade  payment  of this sum she would have a receipt for\t it.
\nThe Respondent would know with certainty on what date it was
\npaid.  Most importantly at this stage it is not claimed that
\nany  payment  was made by the Respondent after 2nd  December
\n1965.\tIt appears that the Appellants then produced  before
\nthe  High Court receipts to show that they had made payments
\ntowards\t  the  cost  of\t the   flat  on\t 25th  March   1968.
\nUnfortunately  the  High Court has dealt with  an  important
\naspect most cursorarily and wrongly refused to look into it.
\nBefore\tthis Court Respondent has filed a counter  affidavit
\ndated  27th  July,  1995.   In\t para  15  of  this  counter
\naffidavit,  it\tis  averred  as\t follows  :   “In  fact\t the
\nfollowing  payments were made by the respondent, the details
\nof which are given below :-\n<\/p>\n
    PAYMENT  MADE TOWARDS HOUSE NO.M-67\/A & B MALVIYA NAGAR,
\nNEW DELHI:\n<\/p>\n
    Payments from 1959 to 1965 :\n<\/p>\n
    1.\t Rs.1,616.00 On 22.6.1959 2.  Rs.1,149.00 On 1960 3.
\nRs.1,158.00  On\t 18.2.1963  4.\tRs.600.00  On  14.5.1963  5.
\nRs,.558.00  On\t17.6.1963  6.\t Rs.3,158.39  On   2.12.1965
\n________________  Total\t :  Rs.8,239.39 ________________  B)
\nPAYMENT\t MADE  TOWARDS RENT WATER CHARGES  INTEREST,  GROUND
\nRENT ETC.\n<\/p>\n
    1.\tRs.101.90 On 30.2.1959 2.  Rs.44.00 On 30.12.1959 3.
\nRs.9.00\t On 30.2.1959 4.  Rs.20.00 On 2.12.1965 5.   Rs.2.00
\nOn  25.3.1968 6.  Rs.2,237.10 On 25.3.1968 7.  Rs.55.80\t On.
\n25.3.1968   8.\t Rs.20.00  On\t25.3.1968   9.Rs.922.05\t  On
\n25.3.1987<\/p>\n
    Therefore,\tnow  for  the first time the  Respondent  is
\nclaiming that some payments had been made by her in 1968 and
\n1987.\tShe is now claiming that the sum of Rs.\t 2221.10 was
\npaid  by her.  To be remembered that in the Plaint there  is
\nspecific  averment that the last payment made by her was  on
\n2nd  December,\t1965.  Even before the High Court her  stand
\nwas  that the last payment was made on 2nd December, 1965  .
\nBefore\tHigh  Court an application was filed to\t the  effect
\nthat  the  evidence of PW4 had been tampered with  and\tthat
\ndate  should  not  be 25th March, 1968 but  should  be\t25th
\nMarch,\t1965.  The counter affidavit now filed shows that on
\n25th   March,  1965,  no  payment   has\t been  made  by\t the
\nRespondent.   This was to her knowledge.  If she had not any
\nmade  payment on 25th March 1968 and if she had made payment
\non 25th March 1968 why claim that there was tampering and\/or
\nerror  and that the correct date should be 25th March  1965.
\nOn  solemn  affirmation it is stated before the\t High  Court
\nthat  the date of payment of Rs.  2221.10, in the deposition
\nof  PW-4,  should be 25th of March, 1965.  Before  the\tHigh
\nCourt  it  is  claimed\tby  the\t Respondent\/Plaintiff\tthat
\npayments  were\tmade on 25th March, 1965.  It is thus  clear
\nthat  the Respondent\/Plaintiff has not made this payment  on
\n25th  March  1968.   This is also clear from the  fact\tthat
\nreceipts  for  this payment are with the Appellants.  It  is
\nnot the Respondents case that any receipt was handed over by
\nthem  to the Appellants.  To be remembered that Sunder Singh
\nhad  died in 1964.  Therefore these could not be part of the
\nthree  receipts alleged to have been handed over to him.  It
\nis  clear that the Respondent\/Plaintiff is making  averments
\nas are convenient to her without any regard for truth.\tThis
\nconduct would preclude Respondent from getting any equitable
\nrelief.\t  However  in this case even otherwise it  is  clear
\nthat Respondent had not performed her part of the Agreement.
\nThus  there  never was any readiness and  willingness.\t She
\ncould  thus not get specific performance.  There is  another
\nreason\twhy the discretionary relief of specific performance
\nshould\tnot be granted.\t This Suit is for enforcement of Cl.
\n5 of the Agreement.  For sake of convenience Cl.  5 is again
\nset  out  herein.   It reads as follows:  5.  That  if\tthe
\nfirst  party  fails to refund the said sum of  Rupees  three
\nthousand  to  the second party as stipulated and  if  anyone
\ninstalment  due remains unpaid after 30 days R.A.D.,  notice
\nin  that behalf the entire sum of Rs.3,000\/- or balance\t due
\nshall  become due at once and on the failure on the part  of
\nthe  first  party to repay the same within 15 days next,  he
\nshall transfer the other portion of the property namely, 67A
\nalso  to the second party or the said Shri D.N.\t Kaul or her
\nnominee\t for  the said consideration of Rs.3,000\/- and\tgive
\nher\/him\t or  their  nominee vacant and\tpeaceful  possession
\nthereof\t  and  have  a\tdeed   of  transfer   executed\t and
\nregistration  duly  effected before the\t proper\t registering
\nauthority.\n<\/p>\n
    Thus under this clause The Respondent could have given a
\nR.A.D.\t notice of 30 days for non payment of instalment.  A
\nnotice\tdt.   1st May 1962 was given.  However it is  fairly
\nadmitted that the suit is not based on that notice.  Had the
\nsuit been based on that notice it would be time barred.\t The
\naverments   in\tthe  suit  make\t  it  clear  that   specific
\nperformance  of transfer of Block 67A is sought on basis  of
\nnon  return  of\t Rs.  3000.  However whilst the sum  of\t Rs.
\n3000  was to be returned the Respondent had to make  payment
\nof  costs of the Blocks with interest thereon and arrears of
\nrent.\tIt would hardly be equitable to hold the  Appellants
\nliable for default to repay Rs.\t 3000 when they have already
\nhad  to pay Rs.\t 2221.10 in order to prevent termination and
\nforfeiture.   Neither the trial court nor the High Court has
\ngiven  the  Appellants credit\/benefit of this  payment\teven
\nthough\tthe  admissions\t and the evidence showed  that\tthis
\npayment\t had  been made by them.  If out of the sum  of\t Rs.
\n3000  a\t major amount of Rs.  2221.10 has been paid  by\t the
\nAppellant it would be most inequitable to direct transfer of
\nBlock  67A by granting specific performance.  In our view it
\nis  clear that Respondent\/Plaintiff had not performed  their
\npart  of  the  Agreement.  There was thus no  readiness\t and
\nwillingness  on the part of the Respondent\/Plaintiff.\tBoth
\nthe trial court and the High Court have clearly erred in law
\nand  on\t facts\tby  granting  specific\tperformance  to\t the
\nRespondent\/Plaintiff  and directing transfer of Block 67A in
\nher  favor.  It is also inequitable to do so.  In our  view,
\nthe  judgment of the trial court and the judgment dated 27th
\nApril,\t1993  of the High Court cannot be sustained to\tthis
\nextant.\t  The  portions of the Judgments  granting  specific
\nperformance    by   transfer   of     Block   67A   to\t the
\nRespondent\/Plaintiff require to be and are hereby set aside.
\nHowever\t as  it\t is fairly admitted there has been  sale  of
\nBlock 67B to the Respondent\/Plaintiff and to that extant she
\nis  entitled to have Block 67B transferred to her name.\t The
\ndecree\tof the Courts below is affirmed to this extant.\t  As
\nset  out above the Respondent\/Plaintiff has not been  honest
\nwith  the  Court.  Whilst no punitive action need  be  taken
\nagainst\t her, in our view this is a fit case where she\tmust
\nbe  made to bear the cost of the other side not just  before
\nthis  Court  but  also before the trial court and  the\tHigh
\nCourt.\t There\twill  be an Order accordingly.\t The  Appeal
\nstands disposed off accordingly.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Ajaib Singh & Ors vs Smt. Tulsi Devi on 2 August, 2000 Author: S N Variava Bench: V.N. Khare, J., S.N. Variava, J. PETITIONER: AJAIB SINGH & ORS. Vs. RESPONDENT: SMT. TULSI DEVI DATE OF JUDGMENT: 02\/08\/2000 BENCH: V.N. Khare, J. & S.N. Variava, J. JUDGMENT: S. N. Variava, J. This […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-252960","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nAjaib Singh & Ors vs Smt. Tulsi Devi on 2 August, 2000 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/ajaib-singh-ors-vs-smt-tulsi-devi-on-2-august-2000\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Ajaib Singh & Ors vs Smt. 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