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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION
SECOND APPEAL NO.113 OF 2020
WITH
CIVIL APPLICATION NO. 104 OF 2020
IN
SECOND APPEAL NO. 113 OF 2020

1. Haridas Vishnu Sawant .. Appellants

Aged 50 yrs, Occ.Agri, residing at
Kalambi, Tal.Khatav, Dist. Satara
2. Bhanudas Bajirao Jadhav, since
dec. thru his Legal heirs
2A Kumudini Bhanudas Jadhav,
residing at Yeliv, Tal. Khatav,
Dist.Satara,

Versus
1 Sou.Nalini Satish Jadhav .. Respondent
Aged 32 yrs, Occ.Household
2 Satish Dhanaji Jadhav
Aged 38 yrs, Occ. Agri
Residing at Yeliv, Tal.Khatav
Dist. Satara.
…

Mr. Dilip Bodake with Sharad Bhosale for the appellants.

Mr.Sachin S. Punde for the respondent.

CORAM: BHARATI DANGRE, J.

DATED : 8th APRIL 2022.

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JUDGMENT :-

1 The appellants in this Appeal are the defendants in

the Regular Civil Suit No.350 of 2001 filed by the plaintiff,
specific performance of agreement of sale dated 14/6/2001 in
respect of the property belonging to the defendant and which is
alleged to have been agreed to be sold to the plaintiff for a
consideration of Rs.70,000/-.

The Suit came to be decreed with costs and the

defendants were directed to execute the sale transaction in favour
of the plaintiff by accepting the amount of Rs.59,000/- and
perform his part of the contract. On the failure of the defendant
no.1 to execute the sale transaction, liberty was given to the
plaintiff to get the same executed through the Court.

2 Being aggrieved by judgment dated 10/3/2011,

decreeing the Suit of the plaintiff, the defendants preferred
Regular Civil Appeal No.38/2011 which was also dismissed by
judgment dated 22/10/2018 at the hands of the District Judge-1
Vadunj.

Being aggrieved, the present Second Appeal is

instituted by the said appellants.

3 I have heard Shri Dilip Bodake for the

appellant/original defendant and Advocate Sachin Punde for the
respondent in the Appeal and original plaintiff.

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4 The suit property is a parcel of land located in Mauje

Yeoul, Taluka Khatav and the defendant, who agreed to sell, his 5
anna 4 pai share to the plaintiff resulted in execution of
agreement of sale on 14/6/2001 for a consideration of
Rs.70,000/-. The plaintiff paid earnest money of Rs.11,000/- to
the defendant no.1 and agreed to pay the balance within three
months of the agreement of sale. The agreement being
unregistered, the plaintiff pleaded that the possession of land was
delivered to him on the same day and the defendant was to incur
expenses of the sale deed. The plaintiff particularly pleaded that,
on 2/7/2001, the plaintiff paid further sum of Rs.20,000/- to the
defendant no.1 and he was ready and willing to execute the sale
transaction by paying remaining amount of Rs.59,000/-. In order
to convey his readiness and willingness, he send a notice to the
defendant no.1 on 3/8/2001 by Registered Post, extending his
willingness to get the agreement executed and requesting the
defendant no.1 to execute the transaction as per the agreement for
sale. Accordingly, the plaintiff remained present in the Registrar's
office on 13/9/2001 from 11.00 am, but despite notice being
served upon the defendant no.1 on 5/9/2001, he failed to remain
present and avoided to execute the transaction as per the terms
and conditions to sell.

The plaintiff claimed to have incurred an amount of

Rs.15,000/- to Rs.20,000/- towards expenses in developing the
suit land and in order to restrain the plaintiff from enjoying the

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fruits of the property, the defendant no.1 sold the suit land to one
Shri Bhanudas Jadhav, thereupon the plaintiff amended the suit
and impleaded him as defendant no.2.

In the backdrop of the above pleadings, the plaintiff

sought specific performance of the contract and a declaration,
directing defendant no.1, to execute the sale transaction in favour
of the plaintiff.

5 Both the defendants, to the Suit resisted the relief by

filing their respective written statement at Exhibit 36 and 37
respectively.

The defendant no.1 denied the execution of

agreement of sale in favour of the plaintiff and he also denied
acceptance of earnest money as well as acceptance of Rs.20,000/-.
He further denied to the delivery of possession, in view of the
agreement of sale. By amending his pleading, defendant no.1
specifically pleaded alternatively, that if the Court comes to a
conclusion regarding the agreement of sale dated 14/6/2001, since
it was an unregistered agreement, coupled with possession and in
terms of the said agreement, the plaintiff was liable to pay an
amount of Rs.59,000/- within three months and to get the sale
transaction executed. However, since the plaintiff failed to pay
the requisite amount during the prescribed period of three
months and since defendant no.1 was in need of money due to
illness of his mother and he had to repay the amount of

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household expenses, and since there was a failure on part of the

plaintiff to pay the remaining amount, his right of specific
performance is extinguished because time was the essence of
contract. The defendant no.1 thus alleged that the plaintiff is
responsible for breach of conditions of the Agreement, which
prompted him, to sell the suit land to defendant no.2.

The defendant no.2 also opposed the claim of the

plaintiff, on the basis, that he had purchased the suit land on
15/9/2001 for a consideration of Rs.91,000/- from defendant
no.1 and before execution of the sale transaction, he had verified
the mutation entries, and found that the name of the defendant
no.1 recorded in the ownership as well as possession column.
He, therefore, claimed that he is a bonafide purchaser without
notice of the transaction between the plaintiff and defendant no.1.
He claimed to be the exclusive owner of suit land on the basis of
sale deed dated 15/9/2001.

6 In the wake of the aforesaid facts involved, the trial

Court framed 13 issues and the burden to prove the execution of
the agreement dated 14/6/2001 and receipt of earnest money as
well as handing over of the possession of the suit property on the
very same date, was cast on the plaintiff. The defendant no.1 was
shouldered with burden to prove, whether time was the essence of
the contract and whether the Suit is hit by provisions of
Consolidation Act. Burden of proving that he is a bonafide
purchaser for value without notice, was cast on defendant no.2.
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Further, the burden to prove readiness and willingness to pay an

amount of Rs.59,000/- was also cast upon the plaintiff.

7 In support of the claim, the plaintiff examined

himself (Exhibit-50) and one more witness, Suhas Hattigote,
scriber of the written agreement (Exhibit-67). The defendant
no.1 examined himself along with defendant no.2, the bonafide
purchaser of the suit property.

By appreciating the evidence placed before him, the

learned Civil Judge, Sr. Division, Vadunj, accepted the case of the
plaintiff as pleaded, that the defendant delivered the possession of
the suit land on the day of agreement of sale. The witness of the
plaintiff deposed that both the parties were present before him
when the document was executed and that defendant no.1 put his
signature in presence of the witnesses.

Accepting the aforesaid evidence brought on record

by the plaintiff, the trial Court held that execution of agreement
dated 14/6/2001 is proved. The payment of earnest money of
Rs.11,000/- was also held to be proved by the witness of the
plaintiff and particularly, when during the argument, the counsel
on behalf of defendant no.1 fairly admitted the execution of the
agreement as well as payment of earnest amount of Rs.11,000/-.

8 Coming to t13he third issue which was framed for

determination, as to whether the plaintiff was handed over the
possession of the suit property on 14/6/2001. Recording that,

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except the recitals of the agreement for sale, there was no evidence
on record to support the factum of the plaintiff's possession over
the suit land and particularly when 7/12 extract of the land
continue to record the name of the defendant no.1, the said issue
was answered in the negative, and also the issue about the
subsequent payment of Rs.20,000/- made by the plaintiff to the
defendant. The burden cast on the defendant no.1 as to whether
time was essence of contract, was also answered in the negative.

9 As far as the issue about readiness and willingness of

the plaintiff, the trial Court referred to the notice sent by the
plaintiff to the defendant before expiry of period of three months,
as stipulated in the agreement for sale, calling upon him to accept
the amount of Rs.59,000/- and to execute the sale deed. Holding
that this notice support the plaintiff's claim that he is ready and
willing to perform his part of the contract, the learned Judge
focused his attention on the conduct of the defendant from his
cross-examination, since he denied the execution of the
agreement, though on receipt of the notice, on 5/9/2001, he
forwarded a reply to the plaintiff on 11/9/2001. Recording that as
per the agreement dated 14/6/2001, period of three months was
over on 14/9/2001, and on 15/9/2001, the defendant no.1
executed a sale deed of the suit land in favour of defendant no.2
which was inferred as, the defendant no.1 avoided to perform his
part of the contract. The action of the defendant no.1 to execute
the transaction immediately on completion of period of three

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months, was held to be a deceitful act, giving rise to an inference

that he was only waiting for expiry of three months, as a technical
point. Referring to the document in form of sale transaction with
defendant no.2, for consideration of Rs.91,000/-, the trial Court
has recorded, that the amount was paid to defendant no.1 by
defendant no.2 prior to execution of sale transaction and not in
presence of the Registrar, which reflected the hurried approach of
the defendant no.1, so as to avoid the transaction with the
plaintiff. The plaintiff's readiness and willingness being proved,
he was held eligible for a decree of specific performance.

Recording that the plaintiff is entitled for a relief for

specific performance in the wake of the circumstances brought on
record and supporting his case, the Suit came to be decreed and
the plaintiff was directed to deposit an amount of Rs.59,000/- in
the Court within one month and defendant no.1 was directed to
execute sale transaction in his favour and perform his part of the
contract.

10 On an Appeal being filed by the defendants, the

Appellate Court upheld the findings of the trial Court, on reading
of the recitals in the deed of agreement of sale, in light of the
evidence of the plaintiffs and defendants in respect of proof of
execution of the said agreement of sale dated 14/6/2001. The
said fact is held to be substantiated by the evidence brought on
record, particularly in the cross-examination of the defendant
no.1, that at the time of execution of sale deed, plaintiff has given
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him earnest amount of Rs.11,000/-. Recording that the trial court

is right in holding that the defendant no.1 agreed to sell the suit
property for consideration of Rs.70,000/- to the plaintiff on the
basis of agreement to sell dated 14/6/2001 and accepting the
earnest money, though the subsequent payment of Rs.20,000/- is
not held to be proved, the Appeal is dismissed.

11 As far as the effect of an unregistered agreement on

which the plaintiff has relied, to establish transfer of possession to
the plaintiff, on the very same day, and while dealing with the
submission of the appellant in the Appeal which is also
vehemently sought to be advanced before me by the learned
counsel Dilip Bodake that the unregistered document cannot be
read in evidence, reliance was placed upon decision of the Apex
Court in case of Omprakash Vs. Laxminarayan & Ors, (2014) 1
SCC as well as judgment in case of Javer Chand and ors. Vs.
Pukhraj Surana, AIR 1961 SC 1655. The Appellate Court
recorded that insufficiently stamped document is distinguishable
from a non-registered document and it referred to the effect of the
said documents while concurring with the trial Court in its
finding upon readiness and willingness on part of the plaintiff,
but blamed the defendant no.1 who was avoided execution of the
sale transaction.

12 The question that arises for determination, is whether

the agreement to sell which contain a recital about delivery of
possession to the plaintiff could be accepted as the evidence of the
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possession being made over to the plaintiff, in absence of the said

document being registered and when registration is mandatory, as
from reading of Section 17 of the Registration Act, 1908.

17 Documents of which registration is

compulsory : (1) The following documents shall be
registered, if the property to which they relate is situate in
a district in which, and if they have been executed on or
after the date on which, Act 16 of 1864, or the Indian
Registration act, 1877 (3 of 1877), or this Act came or
comes into force, namely –
(1-A) The documents containing contracts to transfer
for consideration, any immovable property for the
purpose of Section 53-A of the Transfer of Property Act,
1882 (4 of 1882) shall be registered if they have been
executed on or after the commencement of the
Registration and Other Related Laws (Amendment) Act,
2001 and if such documents are not registered on or after
such commencement, then, they shall have no effect for
the purposes of the said Section 53-A”.

However, Section 49 of the Registration Act, 1908

deal with effect of non-registration of document, required to be
compulsorily registered, which read thus :-

“49. Effect of non-registration of documents required to

be registered – No document required by Section 17 or by
any provision of the Transfer of Property Act, 1882 (4 of
1882), to be registered shall –
(a) affect any immovable property comprised therein,
or
(b) confer any power to adopt, or
(c) be received as evidence of any transaction affecting
such property or conferring such power.

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13 The Hon'ble Apex Court in case of Ameer Minhaj vs

Dierdre Elizabeth (Wright) Issar 2018 (7) SCC 639, was
confronted with the effect of a document which is unregistered
and whether it could be admitted as evidence of a contract, in Suit
for specific performance, wherein it made the following
observation :-

“12. In the reported decision, this Court has

adverted to the principles delineated in K.B. Saha &
Sons (P) Ltd. v. Development Consultant Ltd. and has
added one more principle thereto that a document is
required to be registered, but if unregistered, can still be
admitted as evidence of a contract in a suit for specific
performance. In view of this exposition, the conclusion
recorded by the High Court in the impugned judgment
that the sale agreement dated 9-7-2003 is inadmissible
in evidence, will have to be understood to mean that the
document though exhibited, will bear an endorsement
that it is admissible only as evidence of the agreement to
sell under the proviso to Section 49 of the 1908 Act and
shall not have any effect for the purposes of Section 53-
A of the 1882 Act. In that, it is received as evidence of a
contract in a suit for specific performance and nothing
more. The genuineness, validity and binding nature of
the document or the fact that it is hit by the provisions
of the 1882 Act or the 1899 Act, as the case may be, will
have to be adjudicated at the appropriate stage as noted
by the trial court after the parties adduce oral and
documentary evidence”.

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14 The issue that arises in the Appeal as against the

concurrent finding rendered against the appellant by the two
Courts below, being answered to the above effect in the wake of
proviso appended to Section 49 of the Specific Relief Act, and the
aforesaid position being rightly appreciated by the Appellate
Court, the Appeal do not give rise to the said substantial question
of law.

15 As far as the readiness and willingness of the plaintiff

is concerned, the learned counsel Mr.Dilip Bodake has placed
reliance on the decision of the Apex Court in Sukhwinder Singh
Vs. Jagroop Singh and Anr, AIR 2020 (SC) 4865, and in
particular, the following observations of the Apex Court in the
said lower Court.

“9. The suit being the one for specific performance of the
contract on payment of the balance sale consideration, the
readiness and willingness was required to be proved by the
plaintiff and was to be considered by the Courts below as a
basic requirement if a decree for specific performance is to
be granted. In the instant case though the defendant No.2
had denied the agreement as also the receipt of the earnest
money, the same would not be of consequence as the
agreement claimed by the plaintiff is with the defendant
No.1 and the contention of the defendant No.2 to deny
the same is without personal knowledge on that aspect.
However, even in the absence of the defence put forth, the
plaintiff was required to prove his readiness and
willingness and that aspect of the matter was to be
considered by the Courts below. In the present case
though the plaintiff examined himself as PW1, as also
PW2 and PW3, the document writer, and the witness to

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the agreement who stated with regard to the execution of

the agreement, the evidence to prove the readiness and
willingness with regard to the resources to pay the balance
sale consideration is insufficient. In the absence of denial
by the defendant No.1, even if the payment of Rs.69,500/
and the claim by the plaintiff of having gone to the office
of Sub-Registrar on 15.06.2004 is accepted, the fact as to
whether the plaintiff had notified the defendant No.1
about he being ready with the balance sale consideration
and calling upon the plaintiff to appear before the Sub-
Registrar and execute the Sale Deed was required to be
proved. From among the documents produced and
marked as Exhibit P1 to P9 there is no document to that
effect, more particularly to indicate the availability of the
balance sale consideration as on 15.06.2004 and as on the
date of filing the suit. Despite the same, merely based on
the oral testimony of PW1, the Courts below have
accepted the case put forth by the plaintiff to be ready and
willing to complete the transaction.

The above observation distinguishable in wake of it's

applicability, since the facts involved an agricultural land, which
was purchased by virtue of registered sale deed by 110 persons for
construction of their house, the plaintiff being one of them, it was
converted into non-agricultural use and lay out was drawn at
subsequent point of time. One of the plot was allotted to the
plaintiff and another plot was allotted to defendant no.2. The
plaintiff contended that the defendant no.2 had no right, title or
interest in the plot of the plaintiff i.e. plaintiff no.1, but he erected
a hut and lived there for some days and allowed defendant no.1
to occupy the same. It is in the backdrop of these facts the

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provisions of Section 49 was sought to be invoked. The suit was

therefore, filed by the plaintiff calling upon the defendants to
restore his possession.

It is in the backdrop of these facts, the unregistered

sale deed was construed and held that since the document in form
of Kararnama between the plaintiff and the husband of the
defendant no.1 executed on 30/11/1956 when the defendant no.1
combated the claim of the plaintiff, by contending that her
husband Fulchand became the owner of plot no.1 and she had
purchased the said plot from him by virtue to Kararnama and she
was delivered the possession of the suit plot along with the hut
to her on the same day and that is how she is in continuous
possession and since she also pleaded that she had perfected her
title by adverse possession. The observations of the learned Judge
as regards the effect of non-registration of the said deed and its
admission in evidence even for co-lateral purpose, would
therefore, have to be read restricted to the facts involved.

15 Another point raised by Mr.Bodake in the Second

Appeal is about the readiness and willingness on part of the
plaintiff to perform his part of the contract.

Careful perusal of the concurrent finding rendered,

would reveal that, the plaintiff had issued notice before expiry of
period of three months within which the agreement was to be
executed, asking the defendant to execute the sale deed in the

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office of Registrar by remaining present on 13/9/2021. The

defendant failed to attend the office for executing the sale deed
and while responding to the notice, the defendant denied that
there was no question of remaining present in the Registrar’s
office. The evidence brought on record is to the effect that the
plaintiff sent a notice on 30.8.2001 to the defendant, calling
upon him to accept the amount of Rs.59,000/- and to execute the
sale transaction. This established the readiness and willingness on
part of the plaintiff to perform his part of the contract and the
Courts below have rightly construed, it to be sufficient
compliance of Section 16 and rather commented upon the
conduct of the defendant, who immediately on the next date, on
expiry of three months, i.e. 14/9/2001, executed a sale transaction
in favour of defendant no.2 on 15/9/2001. This conduct has
been construed as attempt on part of defendant no.1 to avoid to
perform his part of the contract.

16 To succeed in a Suit for Specific Performance, the

plaintiff has to prove (a) that a valid agreement of sale was entered
by the Defendant in his favour and the terms thereof; (b) that the
defendant committed breach of contract; and (c) that he was
always ready and willing to perform his part of the obligation in
terms of contract.

If a plaintiff has to prove that he was always ready and

willing to perform his part of the contract, that is, to perform his
obligation in terms of contract, necessarily he should step into the
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witness box and give evidence that he has all along been ready
and willing to perform this part. Readiness and willingness refer
to the state of mind and conduct of the purchaser, as also his
capacity and preponderance on the other one without the other is
not sufficient. The plaintiff has successfully brought this factum
on record and it is rightly appreciated by both Courts below.

The concurrent finding do not therefore, warrant any

interference on this unsubstantiated argument. Since no
substantial question of law arises in the Second Appeal for
consideration, the Appeal is dismissed.

In view of the dismissal of the Appeal, Civil

Application No.104/2020 do not survive and is disposed off.

( SMT. BHARATI DANGRE, J.)

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