Civil Appeals Nos 1782 and 1783 of 1966
Appeals from the judgment and decree dated October 6 1964 of the Kerala High Court in Appeal Suit No 569 of 1963
OP Malhotra and JB Dadachanji for the appellant in CA No 1782 of 1966 and the respondents in CA No 1783 of 1966
MC Chagla and AG Pudissery
for the respondents in CA No 1782 of 1966 and the appellants in CA No 1783 of 1966
The Judgment of the Court was delivered by Hegde J
These connected appeals by certificate arise from the decision of the
High Court of Kerala in Appeal Suit No 569 of 1963 on its file
Civil Appeal No 1782 of 1966 is filed by the plaintiff in the suit and Civil Appeal No 1783 of 1966 is filed by the second defendant who shall hereinafter be referred to as the defendant who is contesting this appeal
The suit was for specific performance on the basis of an oral agreement alleged to have been entered into on 991121 Malayalain Era between the plaintiff and the 1st defendant who died very soon after the filing of the suit
The suit was contested by the second defendant his widow
The trial court decreed the suit as prayed for but in appeal the High Court did not accept the agreement pleaded by the plaintiff but still granted a decree directing the defendant to execute a sate deed in favour of the plaintiff in respect of item No 1 of the plaint schedule properties less one acre of paddy field at its east for a sum of Rs 11500 
923 Originally the plaintiff was the owner of the suit properties
He sold the same to the 1st defendant on 991121 Malayalam Era under Exh
According to the plaintiff at the time of the execution of P 1 there was an oral agreement between him and the 1st defendant whereunder the 1st defendant agreed to reconvey the properties sold for the very price it was sold whenever the plaintiff calls upon him to reconvey them
The suit from which these appeals arise has been rounded on the basis of the said agreement
The 1st defendant died even before he could file his written statement in the case
Before his death he had gifted the suit properties by means of a registered deed in favour of the defendant
She denied the agreement pleaded in the plaint but on the other hand she stated that just before his death her husband had agreed to sell to plaintiff item No 1 of the suit property less one acre of paddy field for a sum of Rs 11500 but due to the illness of her husband the sale in question could not be effected
She proceeded further and averred as follows in paragraph 10 of her written statement
This defendant has been asked by the 1 st defendant before his death that even after his death the properties in item No 1 in the plaint schedule which are the subject matter of the contract as mentioned in paragraph 7 except the nilam on the eastern part thereof should be assigned to the plaintiff for a consideration of Rs 11500 and accordingly this defendant is willing to give such property as mentioned above to the plaintiff After the defendant filed her written statement the plaintiff did not amend his plaint and pray for any relief on the basis of the agreement pleaded by the defendant nor did he inform the court that he was ready and willing to accept the agreement pleaded by the defendant or that he was willing to perform his part of that agreement
The suit proceeded on the basis of the agreement pleaded in the plaint
The 1st question that arises for decision is whether the agreement pleaded in the plaint is true
The burden of proving that agreement is naturally on the plaintiff
The agreement in question as mentioned earlier is said to be an oral agreement
Therefore the plaintiff s task is all the more difficult
The sale deed Exh
P 1 proceeds on the basis that it evidences an outright sale
It does not either specifically or by implication lend support to the case put forward by the plaintiff
On the other hand it records the following condition stipulated by the vendor Subject to the stipulation that during my life time the schedule properties shall not be mortgaged or assigned to anyone else without my knowledge and consent I completely convey and surrender to you all my 924 remaining rights and possession and the properties are given to your possession on receipt of the sale consideration of Rs 24500
 From this clause it is clear that the plaintiff conveyed all his rights title and interest in the suit properties to the vendee subject to the aforementioned stipulation
It is not necessary to consider whether the restriction in question is a valid one
Even if we assume that the same is valid it does not support the plaintiff s case
On the other hand by implication it negatives his case
At best the clause referred to above merely confers on the vendor a right to preempt
Hence by implication it negatives the plaintiff s case that there was an agreement to reconvey the suit properties
The plaintiff has not given any satisfactory explanation why the contract relating to reconveyance was not incorporated in the sale deed
To explain this important omission he has examined PW2 who
claims to be a document writer of considerable experience
He claims that the document in question was written by one of his assistants
His evidence is to the effect that the vendor and the vendee wanted to incorporate the agreement as regards re conveyance in Exh
P1 itself but he advised them that it could not be done
This is a strange legal advice
This evidence is on the
face of it unbelievable
There is also no satisfactory explanation why the alleged agreement was not reduced into
writing
In support of the alleged agreement reliance was tried to be placed on Exh
P 2 which is said to be a document signed by the first defendant after the present suit was filed and before his death
The High Court was unable to accept the genuineness of this document
It opined that this document must have been got up by the plaintiff with the assistance of PW 7 his brother
From the High Court s judgment we find that though the document contains hardly few lines for completing the same as many as three different types of ink had been used
The original document has not been called for and therefore we have to proceed on the basis that the
observations made by the High Court are correct
The very recitals in the document show that it is a suspicious document
For all these reasons we are unable
to place any reliance on this document
It may be again emphasized at this stage that this document has come into existence after the institution of the present suit
The principal witnesses who are examined in support of the oral agreement pleaded in the case are PWs1 2 and 7
We have already referred to the evidence of PW 2
He does not appear to us to be a reliable witness
PW 1 is no other than the plaintiff himself
PW 7 is his brother
PW 1 has no children and PW 7 is his nearest heir
Therefore it is quite 925 clear that both PWs 1 and 7 are interested witnesses
Their evidence cannot carry much weight
The story put forward by the plaintiff in the plaint is an im probable one
ItI is true that the plaintiff and the 1st defendant are first cousins
It is also true that their relationship was very cordial
But if the 1st defendant could not trust the plaintiff to advance a sum of Rs 24000 without security as could be gathered from the plaintiff s evidence we fail to see why the 1st defendant should have relied on the oral assurances given by the plaintiff in the matter of reconveying the property
From the averments made by the defendant in her written statement it does appear that when the 1st defendant was in his death bed being stricken by cancer there was some talk about reconveying a portion of the suit properties to the plaintiff
It may also be as held by the trial court that the suit property was worth more than Rs 24000 at the time of its sale
It appears likely that neither side has come forward with the true version
But before a court can grant a decree for specific performance the contract pleaded must be a specific one and the same must be established by convincing evidence
Rarely a decree for specific performance is granted on the basis of an agreement supported solely by oral evidence
That apart as mentioned earlier in this case the oral testimony adduced in support of the agreement pleaded is a highly interested one
We do not think that the trial court was justified in relying on that testimony for granting the decree prayed for
The trial court itself observed in the course of its judgment para 12 that there is no clear cut evidence for proving the terms of the oral contract which is alleged to have been entered into by the plaintiff and the 1st defendant
This finding alone should have been sufficient to non suit the plaintiff
Therefore we agree with the High Court though for reasons other than those mentioned by it that the plaintiff has failed to prove the agreement pleaded in the plaint
This takes us to the decree passed by the High Court in respect of plaint item No 1
This decree is purported to have been passed on the basis of the admission made by the defendant
It may be noted that the agreement pleaded by the defendant is wholly different from that pleaded by the plaintiff
They do not refer to the same transaction
plaintiff did not at any stage accept the agreement pleaded by the defendant as true
The agreement pleaded by the plaintiff is said to have been entered into at the time of the execution of Exh
P 1 whereas the agreement put forward by the defendant is one that is said to have been arrived at just before the filing of the suit
The two are totally different agreements
The plaintiff did not plead either in the plaint or at any subsequent stage that he was ready and willing to perform the agreement pleaded in the written statement of defendant
A 926 suit for specific performance has to conform to the requirements prescribed in Forms 47 and 48 of the 1st Schedule in the Civil Procedure Code
In a suit for specific performance it is incumbent on the plaintiff not only to set out the agreement on the basis of which he sues in all its details he must go further and plead that he has applied to the defendant specifically to perform the agreement pleaded by him but the defendant has not done so
He must further plead that he has been and is still ready and willing to specifically perform his
part of the agreement
Neither in the plaint nor at any subsequent stage of the suit the plaintiff has taken thos pleas
As observed by this Court in Pt
Prem Raj vs The DLF Housing and Construction Private Ltd and anr1 that it is well settled that in a suit for specific performance the plaintiff should allege that he is ready and willing to perform his part of the contract and in the absence of such an allegation the suit is not maintainable
The High Court purported to rely on the decision of this Court in Srinivas Ram Kumar vs Mahabir Prasad and ors
2 in support of the decree passed by it
We do not think that the ratio of that decision is applicable to the facts of this case
Therein the plaintiff brought a suit for specific performance of an agreement to sell a house alleging that he had paid Rs 30000 towards the price and had been put into possession in part performance of the contract but the defendant pleaded that the amount of Rs 30000 was received as a loan and the plaintiff was put into possession only to facilitate the payment of interest
This Court accepted the plea of the defendant and negatived the claim of the plaintiff and refused to decree the specific performance prayed for by the plaintiff but at the same time this Court thought that on the peculiar facts of that case it was appropriate to grant a decree in favour of the plaintiff for Rs 30000 which admittedly remained unpaid
As seen earlier before a decree for specific performance can be given the plaintiff has to plead and satisfy the court about his willingness to perform his part of the contract
Hence in our opinion the decision in Srinivas Ram Kumar s case 2 does not bear on the facts of the present case
For the reasons mentioned above we dismiss Civil Appeal No 1782 of 1966 and allow Civil Appeal No 1783 of 1966
In the result the suit from which these appeals arise stands dismissed
Now coming to the question of costs on the facts and circumstances of this case we think it is appropriate to direct the parties to bear their own costs throughout
Our reasons for doing so are these It is proved that the suit properties were sold to the 1st defendant at a very low price
There must have been some good 1  2  927 reason for doing so but the parties have not chosen to place the true version before the Court
It is also proved that the 1st defendant before his death was willing to resell a portion of the suit properties
He had directed his wife to resell the major portion of item No 1 of the plaint schedule to the plaintiff for a consideration of Rs 11500 though its price at that time is proved to be much more than Rs 11500
As seen earlier the defendant was willing to sell item No 1 in the plaint schedule to the plaintiff for Rs 11500
She expressed her readiness to do so in her written statement
She is evidently not willing to stand by that offer now because of the enormous rise of price of properties in recent times
Mr MC Chagla learned Counsel for the defendant told us at the time of the hearing that the property concerned in the defendant s appeal is now worth over a lac of  rupees
That appears to be the reason why the defendant is backing out of the offer made by her in her written statement
All that one need say is that all is not well with defendant s ease either
Civil Appeal 178266 dismissed
Civil Appeal 178366 allowed


Summary:
The plaintiff as original owner of the suit properties sold the same to the 1st defendant who
was husband of the 2nd defendant
According to the plaintiff apart from the written sale deed there was an oral agreement between him and the 1st defendant whereunder the latter agrees to reconvey the properties sold at the same price whenever the plaintiff called upon him to do so
The suit was filed for specific performance of the said oral agreement
The 1st defendant died even before he filed his written statement
Before his death he had gifted the suit properties to his wife the 2nd defendant
In her written statement the 2nd defendant denied the agreement pleaded in the point but stated that just before his death her husband had agreed to sell t6 plaintiff item No 1 of the suit property less one acre of paddy field for a sum of Rs 11500 but due to his illness the sale could not be effected
She reiterated the said offer in her written statement but the plaintiff did not accept it and the suit proceeded on the basis of the agreement pleaded in the plaint
The trial court decreed the suit as prayed for
In appeal the High Court did not accept the agreement pleaded by the plaintiff but still granted a decree directing the defendant to execute a sale deed in favour of the plaintiff in respect of item No 1 of the plaint schedule properties less one acre of paddy field for a sum of Rs 11500
Both the parties appealed to this HELD
 i The burden of proving the oral agreement was on the plaintiff
The sale deed on the face of it evidenced an outright sale
The stipulation ha it that the purchaser would not mortgage or assign the properties to anyone else during the vendor s lifetime went against the plaintiff s case inasmuch as it only gave the vendor a right to preempt  here was no satisfactory explanation why such an important thing as the agreement to re convey was made orally and not reduced to writing
923 G924B It appeared likely in the present case that neither side had come forward with the true version
But before a court can grant a decree for specific performance the contract pleaded must be a specific one and the same must be established by convincing evidence
Rarely a decree for specific performance is granted on the basis of an agreement supported solely by oral evidence
925 D E On the evidence adduced by him the plaintiff had failed to prove the agreement pleaded in the plaint
925 F ii The High Court was wrong in passing the decree in respect of plaint item No 1 on the basis of the admission of the 2nd defendant in her written statement
The plaintiff did not at any stage accept the 922 agreement pleaded by the defendant as true
The agreement pleaded by the plaintiff in his plaint and that pleaded by the defendant in her written statement were two totally different agreements
The plaintiff did not plead at any stage that he was ready and willing to
perform the agreement pleaded in the written statement of defendant
A suit for specific performance has to conform to the requirements prescribed in Forms 47 and 48 of the 1st Schedule in the Civil Procedure Code
Before a decree for specific performance can be given the plaintiff has to
plead and satisfy the court about his willingness to perform his part of the contract
925 G926 B Pt
Prem Raj vs The DLF Housing and Construction P Ltd  Anr   applied
Srinivas Ram Kumar vs Mahabir Prasad  Ors   distinguished
iii Since the parties had not laid the true version before the court and the defendant had refiled from the offer made by her in her written statement it was a case in which it was appropriate to direct the parties to bear their own costs throughout
926 H