Chattisgarh High Court
Beniram Sahu vs Virendra Kumar Thakur And Anr on 3 March, 2026
1
2026:CGHC:11146
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
FA No. 157 of 2010
Judgment reserved on 03/12/2025
Judgment delivered on 03/03/2026
Beniram Sahu, S/o Shri Devi Prasad Sahu, aged about 51 yrs, Cultivator, R/o
Vill. Panhada, Tah. Berala, Dist. Durg, C.G. At Present R/o Q. No. 4/B, Street
25, Sector 4, Bhilai (wrongly written as Bhilai Nagar), Tah. & Dist. Durg, C.G.
... Appellant
Versus
1. Virendra Kumar Thakur, S/o Nathu Singh Thakur, aged about 45 yrs, R/o
Vill. Panhada, Tah. Berala, Dist. Durg, C.G. At present R/o Sonkar Para, Near
Ganjmandi, Navapara (Rajim), Dist. Raipur (C.G.)
2. State of C.G., Through Collector, Durg, C.G.
... Respondents
(Cause title taken from Case Information System)
For Appellant : Mr. B.P. Gupta, Advocate
For Respondent No.1 : Mr. Raj Kumar Pali, Advocate
For Respondent No.2/State : Mr. Arvind Dubey, Govt. Advocate
Hon'ble Shri Justice Ravindra Kumar Agrawal
C.A.V. Judgment
VED
PRAKASH 1. The instant first appeal under Section 96 of the Civil Procedure Code,
DEWANGAN
Digitally signed by
VED PRAKASH 1908, has been filed by the appellant/plaintiff against the impugned
DEWANGAN
Date: 2026.03.03
20:45:39 +0530
2
judgment and decree dated 16-09-2010, passed by the learned
Additional District Judge, FTC, Bemetara, District Durg, in Civil Suit No.
06-A/2009, whereby the civil suit filed by the plaintiff for specific
performance of the contract is dismissed.
2. For the sake of convenience, the status of the parties is to be taken as
per their status in the civil suit.
3. The plaintiff has instituted the present suit in respect of agricultural land
bearing Khasra Nos. 2/2, 42/2, 833/2, 968/2 and 2039/2, total
admeasuring 2.30 hectares, situated at Village Pahanda, Tahsil Berla,
District Durg (hereinafter referred to as the "suit land"), which was
admittedly owned by Defendant No. 1. The case of the plaintiff is that
on 24/03/2007, Defendant No. 1 agreed to sell the suit land to him for a
total consideration of Rs. 2,50,000/-. It is pleaded that the entire sale
consideration was paid in cash on the same day in the presence of
witnesses, and that Defendant No. 1 delivered possession of the suit
land along with the Rin-Pustika to the plaintiff. On that date, an
agreement to sell was executed by Defendant No. 1, acknowledging
receipt of the full consideration and stating that the plaintiff would be at
liberty to have the sale deed registered at his convenience. The plaintiff
asserts that since 24/03/2007, he has been in continuous, peaceful
possession and cultivation of the suit land.
4. According to the plaintiff, although Defendant No. 1 assured that he
would execute and register the sale deed whenever required, he
subsequently began to avoid the matter on one pretext or another. The
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plaintiff issued a legal notice dated 22/05/2009 calling upon Defendant
No. 1 to execute the sale deed, but the same was refused. A further
notice dated 25/08/2009 was also sent, which was again not accepted.
Apprehending that Defendant No. 1 might obtain a duplicate revenue
record and alienate the suit land to a third party, the plaintiff approached
the Tahsildar seeking restraint on the issuance of copies of revenue
records. It is further pleaded that when proceedings were initiated
before the Tahsildar, Defendant No. 1 appeared on 31/08/2009 and
denied the transaction. The plaintiff thereafter initiated proceedings
under Section 31 of the Indian Stamp Act, before the competent
authority for adjudication of proper stamp duty on the agreement dated
24/03/2007. The Collector of Stamps determined the market value and
directed payment of stamp duty amounting to Rs. 49,450/-, which the
plaintiff duly deposited on 26/10/2009. Endorsement regarding payment
of the requisite stamp duty was made on the back side of the
agreement. The plaintiff contends that he has thus complied with all
legal requirements and has always been ready and willing to get the
sale deed registered in his favour.
5. It is the specific case of the plaintiff that Defendant No. 1, with dishonest
intention, is denying execution of the agreement and is attempting to
sell the suit land to some other person despite having received the
entire sale consideration and delivered possession. The plaintiff submits
that he has a prima facie strong case, that the balance of convenience
lies in his favour as he has been in settled possession since
24/03/2007, and that he would suffer irreparable loss if the suit land is
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alienated to a third party. On these grounds, the plaintiff has filed the
present suit seeking specific performance of the agreement to sell
dated 24/03/2007 and a decree of permanent injunction restraining
Defendant No. 1 from transferring or alienating the suit land to any other
person.
6. The defendant No. 1 has filed his written statement, denying the
material averments of the plaint. While admitting that the total area of
the land is 2.30 acres and that certain proceedings were pending before
the Tehsildar, the defendant has categorically denied execution of any
agreement, promise, or contract in favour of the plaintiff. He has
specifically denied having delivered possession of the suit property at
any point in time and has asserted that he continues to remain in
possession and cultivation of the land, partly through a cultivator
engaged on Adhiya. The defendant No. 1 has further pleaded that the
document relied upon by the plaintiff is an unregistered instrument
which, even if duly stamped, cannot operate as a transfer of title nor
confer any enforceable right in immovable property requiring
compulsory registration. He has also disputed the service and validity of
notices alleged to have been issued by the plaintiff and has denied any
intention to alienate the property to third parties. Preliminary objections
regarding improper valuation of the suit, insufficiency of court fees, and
lack of maintainability under the governing law relating to specific
performance have also been raised.
7. Based on the pleadings of the parties, the learned trial Court framed the
following issues:-
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"1) क्या वादी द्वारा वादग्रस्त भूमि को क्रय करने का सौदा
प्रति.क्रं . 1 से दि. 24.03.07 को किया गया ?
2) क्या वादी द्वारा प्रति.क्र.1 को वादग्रस्त भूमि का विक्रय मूल्य
2,50,000/- रू. क्रय दि. 24.03.2007 को अदा कर दिया गया
था ?
3) क्या प्रश्नगत दस्तावेज वचन पत्र / इकरारनामा दि.
24.03.3007 प्रभावशील नहीं है।
4) क्या प्रति.क्रं . 1 द्वारा वादग्रस्त भूमि का आधिपत्य एवम् मूल
ऋण पुस्तिका क्रमांक 2063080 विक्रय दि. 24.03.2007 को
वादी को प्रदान किया गया?
5) क्या वादग्रस्त भूमि पर वादी का आधिपत्य है ?
6) क्या वादग्रस्त भूमि पर प्रति.क्रं . 1 का आधिपत्य है ?
7) क्या प्रश्नगत वचनपत्र दि. 24.03.2007 के अनुसार वादी
प्रति.क्र. 1 से जब चाहे पंजीयन की कार्यवाही करा पाने का
अधिकारी रहा है।
8) क्या प्रति.क्रं . 1 द्वारा प्रश्नगत सौदा अनुसार पंजीयन संबंधी
कार्यवाही नहीं की गई है ?
9) क्या वादी प्रति.क्रं . 1 से प्रश्नगत सौदा दि. 24.03.2007 के
अनुसार वादग्रस्त भूमि के संबंध में विक्रय पत्र का निष्पादन करा
पाने का अधिकारी है?
10) क्या वादी वादग्रस्त भूमि का पंजीयन करा पाने का
अधिकारी है ?
11) क्या वादी वादग्रस्त भूमि का एकमात्र स्वत्वाधिकारी है ?
12) क्या वादी द्वारा अपने दावे का उचित रूप से मूल्यांकन कर
पर्याप्त न्यायाशुल्क अदा नहीं किया गया है।
13) क्या वादी द्वारा प्रस्तुत वाद प्रचलनयोग्य नहीं है।
14) क्या वादी प्रति.क्र. 1 के विरूद्ध वाद भूमि के संबंध में
निषेधाज्ञा का अनुतोष प्राप्त करने का अधिकारी है ?
15) सहायता एवं व्यय"
8. In support of his claim, the plaintiff Beni Ram examined himself as P.W.
1, Dinesh Kumar Thakur P.W. 2, Jagrakhan Sahu P.W. 3, Lakhan Lal
Nishad P.W. 4, Shiv Kumar Sahu P.W. 5, Harish Kumar Thakur P.W. 6.
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He relied upon the documents Agreement dated 24-03-2007 Ex. P-1, B-
1 Kishtabandi Ex. P-2, Khasara Panchsala Ex. P-3, Khasara Panchsala
Ex. P-4, Rin-Pustika Ex. P-5, Order dated 24-10-2009, Copy of notice
dated 22-05-2009 Ex. P-7, Registered Postal envelope Ex. P-8, Copy of
notice dated 25-08-2009 Ex. P-9, postal receipt Ex. P-10, Registered
postal envelope Ex. P-11, General notice published in the daily
newspaper Ex. P-12, Objection to the Deputy Registrar and its receipt
Ex. P-13 and P-14, Objection to Registrar and its receipt Ex. P-15 and
P-16, Objection to the Tahsildar Berla Ex. P-17, Complaint to the police
Ex. P-18, reply filed by the defendant before the Tahsildar, Berla Ex. P-
19.
9. The defendant examined in support of his case, Shrawan Singh D.W. 1,
Girwar Sahu D.W. 2. The defendant No. 1 has not relied on any
document in his favour.
10. After appreciation of the oral as well as documentary evidence led by
the parties, the learned trial Court decided all the issues in favour of the
plaintiff, but dismissed the suit by holding that the plaintiff was not ready
and willing to perform his part of the contract and is not entitled for
decree of specific performance. Hence, this first appeal.
11. In the present appeal, the defendant No. 1 has filed his cross-objection
under Order 41 Rule 22 of the C.P.C. on 14-03-2011, challenging the
finding of issue No. 4 recorded by the learned trial Court in its judgment
dated 16-09-2010. The said issue is with respect to the delivery of
possession of the suit land to the plaintiff by the defendant No. 1 and
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also the handing of the Rin-Pustika to him, which has been answered
by the learned trial Court in favour of the plaintiff. The delay in filing the
cross-objection is condoned by the order dated 01-03-2016.
12. Learned counsel for the appellant would submit that the impugned
judgment is legally unsustainable since the learned trial Court, after
recording categorical findings on all material issues in favour of the
appellant, paradoxically refused the relief of specific performance. The
Court has held that the agreement to sell dated 24/03/2007 (Ex. P-1)
was duly executed by the respondent; that the entire sale consideration
of Rs. 2,50,000/- was paid on the date of execution of the agreement;
and that possession of the suit land along with the original Rin-Pustika
was delivered to the appellant. These findings, based on consistent
testimony of P.W. 1 to P.W. 6 and corroborated by documentary
evidence, including adjudication of stamp duty under Section 31 of the
Indian Stamp Act, conclusively establish a concluded and enforceable
contract. The objection regarding non-registration of the agreement is
misconceived, as an agreement to sell does not itself create title and is
admissible in evidence for seeking specific performance. The Hon'ble
Supreme Court in S. Kaladevi v. V.R. Somasundaram, 2010 (5) SCC
401, has authoritatively held that even an unregistered agreement can
be received in evidence for the purpose of enforcing specific
performance. Likewise, in Nathulal v. Phoolchand, 1969 (3) SCC 120,
it was held that where the plaintiff proves execution of a valid
agreement and payment of consideration, and there is no default on his
part, equity demands enforcement of the contract. In the present case,
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the respondent neither produced any documentary evidence nor
discharged the burden of disproving execution; mere denial cannot
override positive evidence. Having accepted the foundational facts in
favour of the appellant, the trial Court could not have denied the
consequential relief, as such refusal amounts to an arbitrary exercise of
discretion contrary to settled principles governing suits for specific
performance.
******* He would further submit that the finding that the appellant was
not ready and willing to perform his part of the contract is contrary to
both pleadings and the unimpeached evidence on record. Under
Section 16(c) of the Specific Relief Act, readiness and willingness must
be pleaded and proved through conduct, and it is not a ritualistic
formula but a matter of substance. The appellant specifically pleaded
continuous readiness and willingness; he issued legal notices dated
22/05/2009 and 25/08/2009 calling upon the respondent to execute the
sale deed; he initiated proceedings before the competent authority for
adjudication of proper stamp duty; he deposited Rs. 49,450/- as
determined; and he instituted the suit well within limitation immediately
upon categorical denial by the respondent. These acts demonstrate
persistent assertion of contractual rights and bona fide intention to
complete the transaction. The Hon'ble Supreme Court in N.P.
Thirugnanam (Dead) By Lrs. v. Dr. R. Jagan Mohan Rao and
others, 1995 (5) SCC 115, held that readiness and willingness must be
determined from the entirety of circumstances and conduct of the
plaintiff, while in Azhar Sultana v. B. Rajamani, 2009 (17) SCC 27, it
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was reiterated that where substantial compliance and genuine intent are
established, denial of specific performance would defeat equity. In the
present case, the entire consideration was paid at inception, possession
was delivered, and the appellant consistently pursued registration;
hence, financial readiness was no longer in question. There is no
evidence of abandonment, delay attributable to the appellant, or refusal
to perform. The trial Court's conclusion on readiness is therefore
perverse and contrary to law, warranting interference in the appeal and
grant of a decree for specific performance along with the permanent
injunction.
******* Learned counsel for the appellant further submits that the
respondent No. 1 has filed a cross-objection with respect to the finding
of issue No. 4 only, which is the issue of delivery of possession. The
said cross-objection is not in format, and no proper court fee has been
paid for it. The said cross-objection is also beyond the limitation period.
Therefore, the cross-objection is not maintainable in the present case.
13. Per contra, learned counsel for the respondent No. 1 opposes the
submissions and submits that the learned trial Court has rightly
exercised its judicial discretion in refusing the equitable relief of specific
performance, as the appellant failed to discharge the mandatory burden
under Section 16(c) of the Specific Relief Act of proving continuous
readiness and willingness to perform his part of the contract. Mere
pleading or issuance of notices does not suffice; the plaintiff must
establish through cogent and convincing evidence that he was always
ready with the means and intention to complete the transaction. In N.P.
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Thirugnanam (supra), the Hon'ble Supreme Court held that readiness
and willingness must be proved as a continuous requirement from the
date of the agreement till the date of the decree, and that absence
thereof is fatal to the suit. Similarly, in Man Kaur v. Hartar Singh
Sangha, 2010 (10) SCC 512, it was reiterated that the plaintiff must
establish his financial capacity and bona fide conduct beyond doubt. In
the present case, despite alleging payment of the entire consideration in
cash without independent documentary proof, the appellant failed to
produce reliable evidence of such payment or demonstrate that he took
timely steps for registration for nearly two years. The unexplained delay
between 2007 and 2009 itself casts serious doubt on the genuineness
of the transaction and disentitles the appellant to equitable relief.
******* He would further submit that the agreement relied upon by the
appellant is an unregistered and initially insufficiently stamped
document, which does not create any right, title, or interest in
immovable property. The respondent has consistently denied execution
and delivery of possession, and no independent revenue record was
produced to conclusively establish the change of possession. Specific
performance being a discretionary relief under Section 20 of the
Specific Relief Act (as it then stood), the Court is not bound to grant it
merely because execution is alleged; the conduct of the parties and
surrounding circumstances must inspire confidence. Relying upon the
judgment of the Hon'ble Supreme Court, in K.S. Vidyanadam v.
Vairavan, 1997 (3) SCC 1, he would submit that the Hon'ble Supreme
Court held that delay and inequitable conduct are relevant
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considerations for refusing specific performance, even if the suit is
within limitation. it is further submitted that the defendant No. 1 has only
challenged the finding of issue No. 4 and not challenged the decree;
therefore, he is not required to pay the court fee as required to file the
regular appeal. The delay in filing the cross-objection has already been
condoned by the order dated 01-03-2016. Even if no specific ground is
mentioned in the cross-objection, the respondent No. 1 can challenge
the adverse finding against him as provided under Order 41 Rule 22 of
the C.P.C. and the Court is also empowered to decide the issue in
accordance with law and under the facts and circumstances of the case
while invoking the powers under Order 41 Rule 33 of the C.P.C. In view
of the serious dispute regarding execution, the absence of credible
proof of payment, and the appellant's failure to establish continuous
readiness and willingness, the dismissal of the suit is legally justified
and calls for no interference in the appeal.
14. I have heard learned counsel for the parties and perused the record of
the trial Court with utmost circumspection.
15. In the present first appeal, the point for consideration is whether the
plaintiff, Beni Ram, having proved the execution of a valid agreement to
sell dated 24/03/2007, payment of the full sale consideration of Rs.
2,50,000/-, and delivery of possession along with the original Rin-
Pustika by Defendant No. 1, has sufficiently established continuous
readiness and willingness to perform his part of the contract, such that
the trial court erred in dismissing his suit for specific performance and
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permanent injunction despite recording favourable findings on all other
material issues.
16. The learned trial Court found several issues in favour of the plaintiff,
Beni Ram. The trial court assessed both oral and documentary
evidence presented during the trial. The plaintiff himself (P.W. 1) gave a
detailed account of the agreement dated 24/03/2007, explaining that the
full sale consideration of Rs. 2,50,000/- was paid in cash to Defendant
No. 1 in the presence of witnesses. This testimony was corroborated by
P.W. 2 to P.W. 6, who confirmed witnessing the transaction and the
delivery of possession. The plaintiff also produced the original Rin-
Pustika (Ex. P-5) and related Khasra and Kishtabandi records (Ex. P-2,
P-3, P-4), which showed his possession and cultivation of the suit land.
The trial court noted that the defendant failed to produce any
documents or receipts contradicting the plaintiff's claim of payment of
sale consideration or possession.
17. Upon consideration of the pleadings, documentary evidence, and oral
testimonies adduced on record, this Court finds that the plaintiff has
successfully discharged the burden of proof in respect of Issue Nos. 1,
2 and 4. The plaintiff has produced the original agreement dated
24/03/2007, wherein the defendant agreed to sell the suit land for a total
consideration of Rs. 2,50,000/-, and has categorically deposed that the
entire sale consideration was paid at the time of execution of the
agreement. The execution of the agreement has been duly supported
by the attesting witnesses, namely Dinesh Thakur, P.W. 2, and
Shivkumar P.W. 5, who have deposed that the transaction was
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concluded in their presence, that the defendant signed the document
after receiving the full consideration amount, and that possession of the
suit property along with the original Rin-Pustika was handed over to the
plaintiff. The plaintiff has further established that stamp duty amounting
to Rs. 49,450/- was paid on the said document, thereby lending further
assurance as to its genuineness and intended legal effect. The
documentary and oral evidence, read conjointly, establishes the
existence of a concluded contract supported by consideration and
accompanied by delivery of possession.
18. On the contrary, the defence set up by the defendant is found to be
evasive and unsupported by cogent evidence. In the written statement,
the defendant has merely denied the execution of the agreement
without specifically pleading that the document is forged, fabricated, or
obtained by fraud or misrepresentation. No expert evidence has been
led to dispute the signatures appearing on the document, nor has any
independent documentary material been produced to substantiate the
plea that the defendant ordinarily signs in English and, therefore, could
not have executed the impugned document in the manner alleged.
Significantly, the defendant chose not to enter the witness box to deny
the plaintiff's averments on oath or to subject himself to cross-
examination, although the material facts relating to execution and
receipt of consideration were within his special knowledge. In view of
the settled legal position enunciated by the Hon'ble Supreme Court
in Vidyadhar v. Manikrao, AIR 1999 SC 1441, an adverse inference is
liable to be drawn against a party who abstains from entering the
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witness box to rebut allegations directly concerning him. The
explanation furnished by the defence that the Rin-Pustika had been
taken away by his brother appears inherently improbable, particularly in
the absence of any complaint, notice, or legal action seeking its return.
19. Considering the cumulative effect of the oral evidence, documentary
proof, conduct of the parties, and the surrounding circumstances, this
Court is satisfied that the agreement dated 24/03/2007 was duly
executed by the defendant after receipt of sale consideration and that
possession of the suit property, along with the relevant documents, was
lawfully delivered to the plaintiff.
20. Now the question arises as to whether the plaintiff, Beni Ram, has
sufficiently established continuous readiness and willingness to perform
his part of the contract, which is a prerequisite for obtaining the
equitable relief of specific performance under the Specific Relief Act,
1963. While the trial court had accepted the existence of a valid
agreement to sell dated 24/03/2007, the payment of the full sale
consideration of Rs. 2,50,000/-, and delivery of possession along with
the original Rin-Pustika, it declined to grant specific performance on the
ground that the plaintiff had not proven that he was ready and willing to
perform his contractual obligations in a manner sufficient to justify the
relief sought.
21. In the case of "N.P. Thirugnanam" (supra), the Hon'ble Supreme
Court has held in para 5 of its judgment that:-
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"5. It is settled law that remedy for specific
performance is an equitable remedy and is in the
discretion of the court, which discretion requires to
be exercised according to settled principles of law
and not arbitrarily as adumbrated under s.20 of
the Specific Relief Act 1963 (for short, 'the Act').
Under s.20, the court is not bound to grant the
relief just because there was valid agreement of
sale. Section 16(c) of the Act envisages that plaintiff
must plead and prove that he had performed or
has always been ready and willing to perform the
essential terms of the contract which are to be
performed by him, other than those terms the
performance of which has been prevented or
waived by the defendant. The continuous
readiness and willingness on the part of the
plaintiff is a condition precedent to grant the relief
of specific performance. This circumstance is
material and relevant and is required to be be
considered by the court while granting or refusing
to grant the relief. If the plaintiff fails to either aver
or prove the same, he must fail. To adjudge
whether the plaintiff is ready and willing to perform
his part of the contract, the court must take into
consideration the conduct of the plaintiff prior and
subsequent to the filing of the suit alongwith other
attending circumstances. The amount of
consideration which he has to pay to the
defendant must of necessity be proved to be
available. Right from the date of the execution till
date of the decree he must prove that he is ready
and has always been willing to perform his part of
the contract. As stated, the factum of his
readiness and willingness to perform his part of
the contract is to be adjudged with reference to
the conduct of the party and the attending
circumstances. The court may infer from the facts
and circumstances whether the plaintiff was ready
and was always ready and willing to perform his
part of contract."
22. Examination of the record reveals that the plaintiff, in his pleadings and
oral testimony, did assert that he had been continuously ready and
willing to complete the transaction. He highlighted that he had issued
legal notices dated 22/05/2009 and 25/08/2009 requesting the
defendant to execute the sale deed, had approached the Tahsildar to
16
prevent the issuance of duplicate revenue records, and had deposited
the stamp duty amounting to Rs. 49,450/- as determined under Section
31 of the Indian Stamp Act. These acts, if considered in isolation, prima
facie demonstrate an effort to comply with the legal formalities
necessary for execution and registration of the sale deed. However,
upon scrutiny, it becomes apparent that the plaintiff did not specifically
aver certain substantive aspects that are integral to establishing
"readiness and willingness" under Section 16(c) of the Specific Relief
Act, 1963. First, the plaintiff did not demonstrate in his pleadings or
testimony that he had made arrangements to effectuate the execution
of the sale deed. There is no indication that the plaintiff had made
provisions for the incidental expenses related to drafting, notarization,
or registration of the sale deed. The mere statement of readiness
without evidencing practical or financial preparedness is insufficient,
particularly when the transaction involves immovable property where
substantial costs may be incurred during registration. While the plaintiff
asserted possession of the property, he did not substantiate that he was
prepared to execute the sale deed immediately, which would have
demonstrated actionable willingness beyond the procedural steps
already taken. The trial court, therefore, rightly observed that although
the foundational facts, i.e. execution of the agreement, payment of
consideration, and delivery of possession, are in favour of the plaintiff,
the element of continuous readiness and willingness remained
unproven in its entirety. Specific performance being a discretionary
remedy, courts require evidence that the plaintiff is not merely asserting
a claim but is also substantively prepared to perform his part of the
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contract without delay or contingency. In the absence of such evidence,
the plaintiff cannot compel the defendant to execute a sale deed, even if
the contract is otherwise valid and partially performed. The judgment
emphasizes that readiness and willingness under the law are not mere
assertions; they must be demonstrated through the remaining
obligations under the contract.
23. Consequently, while the trial court correctly recognised the validity of
the agreement and acts of part performance, its refusal to grant specific
performance aligns with established legal principles. The judgment
underscores that equitable relief will not be granted merely on the basis
of execution of a contract and delivery of possession; it requires proof of
actionable preparedness to fulfil contractual obligations. In the present
case, the plaintiff failed to provide evidence of such preparedness for
the execution and registration of the sale deed, and the trial court's
exercise of discretion in dismissing the suit on these grounds cannot be
interfered with lightly. The judgment thus reflects a careful balance
between recognizing contractual rights and upholding the equitable
requirement that a claimant seeking specific performance must
demonstrate continuous readiness and willingness to perform.
24. Hon'ble Division Bench of this Court, in the case of "Ramashankar Rao
and Another v. Nandlal Occhwani and Others" decided on 08-08-
2025, in F.A. No. 88/2022, has considered the readiness and
willingness to perform the part of the contract of the respective parties
and the requirement to plead and prove by the plaintiff. It has been held
that:-
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"10. In order to consider the plea raised at the
Bar, it would be appropriate to notice Section
16(c) along with Explanation (ii) of the Act of
1963, which bars the specific performance of a
contract in favour of the plaintiff. Section 16(c)
along with Explanation (ii) prior to its amendment
dated 01.10.2018, states as under:-
"16. Personal bars to relief. - Specific
performance of a contract cannot be
enforced in favour of person -
(a) and (b)
(c) who fails to aver and prove that he has
performed or has always been ready and
willing to perform the essential terms of the
contract which are to be performed by him,
other than terms the performance of which
has been prevented or waived by the
defendant.
Explanation. - For the purpose of clause
(c), -
(i) xxx xxx xxx
(ii) the plaintiff must aver performance of,
or readiness and willingness to perform,
the contract according to its true
construction."
11. Section 16(c) along with Explanation (ii)
suffered amendment w.e.f. 01.10.2018. In the
amendment word 10 FA No. 88 of 2022 "aver"
has been deleted. Section 16(c) along with
Explanation (ii) after amendment, states as
under:-
"16. Personal bars to relief. - Specific
performance of a contract cannot be
enforced in favour of person -
(a) and (b)
(c) who fails to prove that he has
performed or has always been ready and
willing to perform the essential terms of the
contract which are to be performed by him,
other than terms the performance of which
19
has been prevented or waived by the
defendant.
Explanation. - For the purpose of clause
(c), -
(i) xxx xxx xxx
(ii) the plaintiff must prove performance of,
or readiness and willingness to perform,
the contract according to its true
construction."
12. The amended Section 16(c) and Explanation
(ii) of the Act of 1963 came to be considered by
the Supreme Court in the matter of C. Haridasan
v. Anappath Parakkattu Vasudeva Kurup and
Others, AIR 2023 SC (Civil) 949; AIR Online
2023 SC 64 in which it has been held that the
deletion of words "who fails to aver" in Section 16
of the Act of 1963 does not bring about any real
change in position of law as it stood prior to the
amendment.
13. Thus, in terms of Section 16(c) read with
Explanation (ii) as unamended in a suit for
specific performance of a contract, the plaintiff
should not only plead and prove the terms of the
contract, but also plead and prove his readiness
and willingness to perform his obligations under
the contract, in terms of the contract.
14. Forms 47 and 48 of Appendix A of the CPC
prescribe the manner in which the averments are
required to be made by the plaintiff. For ready
reference Forms 47 and 48 of Appendix A of the
CPC have been reproduced as under:-
No. 47
SPECIFIC PERFORMANCE (No.1)
A. B., the above-named plaintiff, states as
follows:-
1. By an agreement dated the ......... day of
........ and signed by the defendant, he
contracted to buy of [or sell to] the plaintiff certain
immovable property therein described and
referred to, for the sum of ...... rupees.
20
2. The plaintiff has applied to the defendant
specifically to perform the agreement on is part,
but the defendant has not done so.
3. The plaintiff has been and still is ready and
willing specifically to perform the agreement on
his part of which the defendant has had notice.
[As in paras 4 and 5 of Form No.1.]
6. The plaintiff claims that the Court will order the
defendant specifically to perform the agreement
and to do all acts necessary to put the plaintiff in
full possession of the said property [or to accept
a transfer and possession of the said property]
and to pay the costs of the suit.
-----------------------------------------------------------------
No. 48
SPECIFIC PERFORMANCE (No.2)
A. B., the above – named plaintiff, states as
follows :-
1. On the ……… day of ……. 19…../20……., the
plaintiff and defendant entered into an
agreement, in writing, and the original document
is hereto annexed. The defendant, was
absolutely entitled to the immovable property
described in the agreement.
2. On the …….. day of ……. 19…. /20……, the
plaintiff tendered ……… rupees to the defendant,
and demanded a transfer of the said property by
a sufficient instrument.
3. On the …… day of …….. 19….. /20…., the
plaintiff again demanded such transfer. [Or the
defendant refused to transfer the same to the
plaintiff.]
4. The defendant has not executed any
instrument of transfer.
5. The plaintiff is still ready and willing to pay the
purchase-money of the said property to the
defendants
21[As in paras 4 and 5 of Form No.1.]
8. The plaintiff claims-
(1) that the defendant transfers the said
property to the plaintiff by a sufficient
instrument [following the terms of the
agreement];
(2) …… rupees compensation for
withholding the same.
15. The mandatory provisions of Section 16(c) of
the Act of 1963 came up for consideration before
the Supreme Court in the matter of Ouseph
Varghese v. Joseph Aley, (1969) 2 SCC 539 in
which their Lordships of the Supreme Court have
held that a suit for specific performance has to
conform to the requirement prescribed in Forms
47 & 48 of the 1st Schedule in the CPC and
observed as under:-
“9. ………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 suit for specific
performance has to conform to the
requirements prescribed in Forms 47 and
48 of the First Schedule in the Civil
Procedure Code. In a suit for specific
performance it is incumbent on the plaintiff
not only to set out 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 those pleas. As
observed by this Court in Prem Rai v.
D.L.F. Housing and Construction (P) (Ltd.)
[1968 SCC OnLine SC 151] 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.”
22
16. Taking into consideration the principles of law
laid down in Ouseph Varghese (supra) the
Supreme Court in the matter of Manjunath
Anandappa urf Shivappa v. Tammanasa and
others, (2003) 10 SCC 390 has held that the
plaintiff should not only plead that he is ready
and willing to perform his part of contract from
date of filing of the suit, but also prove his
readiness and willingness to perform his part of
contract and held as under:-
“27. The decisions of this Court, therefore,
leave no manner of doubt that a plaintiff in
a suit for specific performance of contract
not only must raise a plea that he had all
along been and even on the date of filing
of suit was ready and willing to perform his
part of contract, but also prove the same.
Only in certain exceptional situation where
although in letter and spirit, the exact
words had not been used but readiness
and willingness can be culled out from
reading all the averments made by the
plaintiff as a whole coupled with the
materials brought on record at the trial of
the suit, to the said effect, the statutory
requirement of Section 16(c) of the
Specific Relief Act may be held to have
been complied with.”
17. Recently, in the matter of P. Ravindranath
and another v. Sasikala and others, 2024 SCC
OnLine SC 1749, the Supreme Court has held
that the suit for specific performance based on
bald and vague pleading must necessarily be
rejected. It was further held by their Lordships
that Section 16(c) of the Act of 1963 requires
readiness and willingness to be pleaded and
proved by plaintiff in a suit for specific
performance of contract and said provision has
been widely interpreted and held to be
mandatory. Relying upon the earlier decisions, it
has been held that it is the bounden duty of the
plaintiff to prove his readiness and willingness to
perform his part of contract by adducing
evidence and this crucial facet has to be
determined by adducing all circumstances
including availability of funds and mere statement
or averment in the plaint of readiness and
willingness would not suffice, and held as under:-
23
22. Having considered the submissions,
our analysis is as follows:
(i) Relief of specific performance of
contract is a discretionary relief. As such,
the Courts while exercising power to grant
specific performance of contract, need to
be extra careful and cautious in dealing
with the pleadings and the evidence in
particular led by the plaintiffs. The plaintiffs
have to stand on their own legs to
establish that they have made out case for
grant of relief of specific performance of
contract. The Act, 1963 provides certain
checks and balances which must be
fulfilled and established by the plaintiffs
before they can become entitled for such a
relief. The pleadings in a suit for specific
performance have to be very direct,
specific and accurate. A suit for specific
performance based on bald and vague
pleadings must necessarily be rejected.
Section 16(c) of the 1963 Act requires
readiness and willingness to be pleaded
and proved by the plaintiff in a suit for
specific performance of contract. The said
provision has been widely interpreted and
held to be mandatory.
(a) xxx xxx xxx xxx
(b) In the case of U.N. Krishnamurthy
(Since Deceased) Thr. Lrs. v. A.M.
Krishnamurthy, 2022 SCC OnLine 840,
following was held in paragraph 46:-
“46. It is settled law that for relief of specific
performance, the Plaintiff has to prove that
all along and till the final decision of the
suit, he was ready and willing to perform
the part of the contract. It is the bounden
duty of the Plaintiff to prove his readiness
and willingness by adducing evidence.
This crucial facet has to be determined by
considering all circumstances including
availability of funds and mere statement or
averment in plaint of readiness and
willingness, would not suffice.”
(c) In the case of His Holiness Acharya
Swami Ganesh Dassji v. Sita Ram Thapar,
24
(1196) 4 SCC 526 it was held under
paragraph 2:-
“2. There is a distinction between
readiness to perform the contract and
willingness to perform the contract. By
readiness may be meant the capacity of
the plaintiff to perform the contract which
includes his financial position to pay the
purchase price. For determining his
willingness to perform his part of the
contract, the conduct has to be properly
scrutinised. There is no documentary proof
that the plaintiff had ever funds to pay the
balance of consideration. Assuming that he
had the funds, he has to prove his
willingness to perform his part of the
contract.
(ii) xxx xxx xxx xxx
(iii) xxx xxx xxx xxx
(iv) If the plaintiffs were actually keen,
ready and willing to get the land
transferred or get the agreement to sell
enforced, they should have made an effort
in that regard. Neither any specific date
has been mentioned in the pleadings or in
the evidence, on which date the plaintiffs
tendered the balance amount with a
request to the defendants 1 to 5 to get the
land status changed and execute the sale
deed, or otherwise also, request the
defendants 1 to 5 to execute the sale deed
with the same status of the land in suit.
(v) Even before filing a suit, there is no
evidence forthcoming on behalf of the
plaintiffs to show that they tendered the
balance consideration or a draft sale deed
to the defendants 1 to 5 and requested for
execution and registration of the sale deed.
18. Furthermore, in the matter of Janardan Das
v. Durga Prasad Agrawal, 2024 SCC OnLine SC
2937 their Lordships of the Supreme Court while
considering Section 16(c) of the Act of 1963 have
held as under:-
25
“8. Section 16(c) of the Specific Relief Act,
1963, mandates that a plaintiff seeking
specific performance of a contract must
aver and prove that they have performed
or have always been ready and willing to
perform the essential terms of the contract
which are to be performed by them. This
requirement is a condition precedent and
must be established by the plaintiff
throughout the proceedings. The readiness
and willingness of the plaintiff are to be
determined from their conduct prior to and
subsequent to the filing of the suit, as well
as from the terms of the agreement and
surrounding circumstances. The rationale
behind this provision is to ensure that a
party seeking equitable relief has acted
equitably themselves. Specific
performance is a discretionary relief, and
the plaintiff must come to the court with
clean hands, demonstrating sincerity and
earnestness in fulfilling their contractual
obligations. Any laxity, indifference, or
failure to perform their part of the contract
can be a ground to deny such relief. The
importance of readiness and willingness
for enforcement of specific performance
has been summarized by this Court in U.N.
Krishnamurthy v. A.M. Krishnamurthy,
(2023) 11 SCC 775 as follows:
“23. Section 16(c) of the Specific Relief
Act, 1963 bars the relief of specific
performance of a contract in favour of a
person, who fails to aver and prove his
readiness and willingness to perform his
part of contract. In view of Explanation (i)
to clause (c) of Section 16, it may not be
essential for the plaintiff to actually tender
money to the defendant or to deposit
money in court, except when so directed
by the Court, to prove readiness and
willingness to perform the essential terms
of a contract, which involves payment of
money. However, Explanation (ii) says the
plaintiff must aver performance or
readiness and willingness to perform the
contract according to its true construction.
24. To aver and prove readiness and
willingness to perform an obligation to pay
26money, in terms of a contract, the plaintiff
would have to make specific statements in
the plaint and adduce evidence to show
availability of funds to make payment in
terms of the contract in time. In other
words, the plaintiff would have to plead
that the plaintiff had sufficient funds or was
in a position to raise funds in time to
discharge his obligation under the contract.
If the plaintiff does not have sufficient
funds with him to discharge his obligations
in terms of a contract, which requires
payment of money, the plaintiff would have
to specifically plead how the funds would
be available to him. To cite an example,
the plaintiff may aver and prove, by
adducing evidence, an arrangement with a
financier for disbursement of adequate
funds for timely compliance with the terms
and conditions of a contract involving
payment of money.
xxxxxxxxx
45. It is settled law that for relief of specific
performance, the plaintiff has to prove that
all along and till the final decision of the
suit, he was ready and willing to perform
his part of the contract. It is the bounden
duty of the plaintiff to prove his readiness
and willingness by adducing evidence.
This crucial facet has to be determined by
considering all circumstances including
availability of funds and mere statement or
averment in plaint of readiness and
willingness, would not suffice.”
9. The Trial Court rightly concluded that
the plaintiffs failed to demonstrate
continuous readiness and willingness to
perform their part of the contract. The
agreement dated 06.06.1993 explicitly
required the plaintiffs to ensure that
Defendant Nos. 6 to 8 would come to
Baripada within three months to execute
the sale deed. The plaintiffs, however, did
not take any concrete steps to secure the
consent or presence of the sisters within
the stipulated period. They relied solely on
Defendant No. 1 and late Soumendra to
procure the sisters, despite knowing that
27
the sisters were not signatories to the
agreement and held a significant share in
the property. The Trial Court observed that
the plaintiffs did not issue any notices or
correspondence to Defendant Nos. 6 to 8
during the three-month period, nor did they
make any efforts to communicate with
them directly to expedite the execution of
the sale deed. This inaction on the part of
the plaintiffs indicated a lack of diligence
and earnestness in fulfilling their
contractual obligations. Furthermore, the
plaintiffs continued to operate their petrol
pump on the suit land without taking
proactive steps to complete the purchase,
suggesting complacency and a lack of
urgency.
10. The High Court, in contrast, summarily
concluded that the plaintiffs were always
ready and willing to perform their part of
the contract. It stated that there was an
abundance of evidence on record to
establish the plaintiffs’ financial capacity
and willingness. However, the High Court
did not delve into the specifics of the
plaintiffs’ conduct or address the Trial
Court’s findings regarding their inaction.
The High Court’s assessment on this
crucial aspect was cursory and lacked a
thorough examination of the evidence and
circumstances that demonstrated the
plaintiffs’ lack of readiness and
willingness.”
19. In the matter of Abdul Khader Rowther v.
P.K. Sara Bai, (1989) 4 SCC 313 the Supreme
Court in paragraph No.11 has held as under:-
“11. ….. His plaint does not contain the
requisite pleadings necessary to obtain a
decree for specific performance. This
equitable remedy recognised by the
Specific Relief Act cannot be had on the
basis of such pleadings and evidence.”
20. In light of principles of law flowing from the
aforesaid judgments (supra) of the Supreme
Court, there is distinction between the terms
“readiness” and “willingness”. “Readiness” is the
capacity of the plaintiff to perform the contract
28
which includes his financial position to pay the
sale consideration, whereas, “willingness” is the
conduct of the party. The plaintiff must plead and
establish that he is ready and willing to perform
his part of contract from the date of agreement to
sale till the date of decision in the suit.
25. In order to consider the “readiness” on the part of the plaintiff, we will
first notice plaint averments in this regard of which paragraph No. 4 of
state as under:-
(4) यह कि दिनांक- 24/03/2007 को प्रतिवादी क्रमांक 01
द्वारा वाद भूमि के सौदा शुदा संपूर्ण रकम प्राप्त कर लेने पश्चात्
वाद भूमि का विक्रय पंजीयन वादी जब चाहे तब करानें का
कथन करते हुये इस बात का उल्लेख इकरारनामा । वचन पत्र
दिनांक- 24/03/2007 में भी किया गया परन्तु वादी द्वारा
प्रतिवादी क्रमांक 01 से विक्रय पत्र पंजीयन हेतु निवेदन किये
जाने पर प्रतिवादी क्रमांक 01 विक्रय पत्र पंजीयन कराने में
टाल मटोल करते हुये आज कल विक्रय पंजीयन कराने का
कथन करते हुये हमेशा वादी से मात्र समय की याचना की
जाती रही तब वादी को प्रतिवादी क्रमांक 01 द्वारा विक्रय
पंजीयन निष्पादित कराने बार-बार टाल मटोल करने से
प्रतिवादी क्रमांक 01 के नियत पर आशंका होने लगी कि कही
प्रतिवादी क्रमांक- 01 वाद भूमि के ऋण पुस्तिका की द्वितीय
प्रति तहसीलदार बेरला से प्राप्त कर वाद भूमि किसी अन्य
व्यक्ति को विक्रय ना कर दे तब वादी ने अपने अधिवक्ता के
माध्यम से प्रतिवादी क्रमांक 01 को पंजीकृ त डाक से नोटिस
दिनांक 22/05/2009 प्रेषित करा वाद भूमि का विक्रय पत्र
पंजीयन वादी के पक्ष में करा देने का निवेदन किया। वादी
अधिवक्ता द्वारा पंजीकृ त डाक से प्रेषित नोटिस को प्रतिवादी
क्रमांक- 01 द्वारा लेने से इंकार कर दिया गया ।”
26. The Hon’ble Division Bench of this Court in the case of Ramashankar
Rao (supra) further held that:-
“23. A careful perusal of the plaint averments
would show that the pleading with regard to
“readiness” on the part of the plaintiff to perform
his part of contract is not in conformity with
Section 16(c) read with Forms 47 & 48 of
Appendix A of the CPC. There is no pleading on
behalf of the plaintiff that he is still ready and
willing to perform his part of contract and to make
payment of remaining balance sale consideration
or he has sufficient funds in his possession or is in
position to raise funds in time to discharge his
29obligations under the contract. He has only
pleaded that he has been ready to perform his
part of the contract from the beginning but did not
aver and proved that he is still ready to perform
the part of the contract and did not specify any
date on which he tendered the amount and asked
the defendants to execute the sale deed in his
favour and also he did specifically said that on
which date or dates he contacted the defendants
for demarcating the land as promised in the sale
agreement. He also did not specify the date on
which he demanded the documents as per
agreement to sale that are Nazul records,
maintenance Khasra and other documents for
execution of the sale deed. Even no date has
been given by the plaintiff on which he tendered
the amount with request to execute the sale deed
to show his “continuous readiness”. As such, the
plaintiff has miserably failed to specifically plead
and prove that he was ready to perform his part of
contract by showing that he was financially able
and sound to make payment of the balance sale
consideration.
25. The Supreme Court in the matter of Pydi
Ramana @ Ramulu v. Davarasety Manmadha
Rao, (2024) 7 SCC 515 while considering the
question of continuous “readiness” and
“willingness” relying upon the decision of Vijay
Kumar v. Om Prakash, (2019) 17 SCC 429 held
that the continuous readiness and willingness is
a condition precedent to grant specific relief and
held that the steps taken by the plaintiff during
the date of agreement till the date of filing of suit
will have to be explained in the plaint and proved
in the evidence, and held in paragraph No.20 as
under:-
20. The long unexplained delay and
silence on the part of the plaintiff in this
regard while in the witness box would not
entitle the plaintiff to a decree of specific
performance and it is for this precise
reason, the trial court as noticed supra has
refused to grant the equitable relief which
has been reversed by the appellate court
without assigning proper and cogent
reason and the one assigned are at
tangent or in other words contrary to the
facts. The resultant effect of filing the suit
for specific performance on the verge of
30limitation coming to an end came to be
examined by this Court in Rajesh Kumar v.
Anand Kumar [Rajesh Kumar v. Anand
Kumar, 2024 SCC OnLine SC 981] and
held that the plaintiff would not be entitled
to the equitable relief (vide paras 14, 15,
16, 17 and 18).
27. With respect to Clause-B of the relief column of the plaint, which is the
claim of relief of declaration of title based on the agreement dated 24-
03-2007, is concerned, this Court finds that the agreement contains the
averments of delivery of possession of the suit land, and the plaintiff
has averred that the possession of the suit land was delivered to him at
the time of execution of agreement. When the document contained the
payment of sale consideration and delivery of possession, it amounts to
a Conveyance, as defined under Section 2(10) of the Indian Stamp Act,
1899. It is necessary to notice here Section 2(10) of the Indian Stamp
Act, which is as under:-
“2. Definitions. — In this Act, unless there is
something repugnant in the subject or context, —
(10) “Conveyance”. — “conveyance”
includes a conveyance on sale every
instrument by which property, whether
moveable or immovable, is transferred inter
vivos and which is not otherwise specifically
provided for by schedule I:”
28. Article 23 of Schedule 1 of the Indian Stamp Act provided the leviable
fee on the document/instrument of Conveyance, which is also
necessary to be reproduced here, which is as under:-
Description of Instrument Proper Stamp-
duty
23. CONVEYANCE [as defined by section 2 (10)] not
31being a Transfer charged or exempted under No. 62
—
where the amount or value of the consideration for Eight annas.
such conveyance as set forth therein does not
exceed Rs. 50:
where it exceeds Rs. 50 but does not exceed Rs. One rupees.
100.
Ditto 100 ditto 200 Two rupees. Ditto 200 ditto 300 Three rupees. Ditto 300 ditto 400 Four rupees. Ditto 400 ditto 500 Five rupees. Ditto 500 ditto 600 Six rupees. Ditto 600 ditto 700 Seven rupees. Ditto 700 ditto 800 Eight rupees. Ditto 800 ditto 900 Nine rupees. Ditto 900 ditto 1,000 Ten rupees.
and for every Rs. 500 or part thereof in excess of Rs. Five rupees.
1,000
Exemption
(a) Assignment of copyright by entry made under the
Indian Copyright Act, 1847 (20 of 1847) section 5.
(b) for the purpose of this article, the portion of duty
paid in respect of a document falling under article
No. 23A shall be excluded while computing the duty
payable in respect of a corresponding document
relating to the completion of the transaction in any
Union territory under this article.
CO-PARTNERSHIP-DEED.
See Partnership (No. 46.)
23A. CONVEYANCE IN THE NATURE OF PART Ninety per cent.
PERFORMANCE–Contracts for the transfer of of the duty as a
32
immovable property in the nature of part Conveyance
performance in any Union territory under section 53A (No. 23)
of the Transfer of Property Act, 1882 (4 of 1882).
29. When the deed is considered to be a Conveyance, it requires
registration for transfer of a valid title as provided under Section 17 of
the Indian Registration Act, 1908. Section 17 of the Indian Registration
Act reads as follows:-
“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
No. XVI of 1864, or the Indian Registration Act,
1866, or the Indian Registration Act, 1871, or the
Indian Registration Act, 1877, or this Act came or
comes into force, namely:–
(a) instruments of gift of immovable property;
(b) other non-testamentary instruments which
purport or operate to create, declare, assign, limit
or extinguish, whether in present or in future, any
right, title or interest, whether vested or
contingent, of the value of one hundred rupees
and upwards, to or in immovable property;
(c) non-testamentary instruments which
acknowledge the receipt or payment of any
consideration on account of the creation,
declaration, assignment, limitation or extinction of
any such right, title or interest; and
(d) leases of immovable property from year to
year, or for any term exceeding one year, or
reserving a yearly rent;
(e) non-testamentary instruments transferring or
assigning any decree or order of a Court or any
award when such decree or order or award
purports or operates to create, declare, assign,
limit or extinguish, whether in present or in future,
33any right, title or interest, whether vested or
contingent, of the value of one hundred rupees
and upwards, to or in immovable property:
Provided that the 2[State Government] may, by
order published in the 3[Official Gazette], exempt
from the operation of this sub-section any lease
executed in any district, or part of a district, the
terms granted by which do not exceed five years
and the annual rents reserved by which do not
exceed fifty rupees.
(1A) The documents containing contracts to
transfer for consideration, any immovable
property for the purpose of section 53A 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 (48 of 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
53A.](2) Nothing in clauses (b) and (c) of sub-section
(1) applies to–
(i) any composition deed; or
(ii) any instrument relating to shares in a joint
stock Company, notwithstanding that the assets
of such Company consist in whole or in part of
immovable property; or
(iii) any debenture issued by any such Company
and not creating, declaring, assigning, limiting or
extinguishing any right, title or interest, to or in
immovable property except in so far as it entitles
the holder to the security afforded by a registered
instrument whereby the Company has mortgaged,
conveyed or otherwise transferred the whole or
part of its immovable property or any interest
therein to trustees upon trust for the benefit of the
holders of such debentures; or
(iv) any endorsement upon or transfer of any
debenture issued by any such Company; or
(v) any document other than the documents
specified in sub-section (1A) not itself creating,
34declaring, assigning, limiting or extinguishing any
right, title or interest of the value of one hundred
rupees and upwards to or in immovable property,
but merely creating a right to obtain another
document which will, when executed, create,
declare, assign, limit or extinguish any such right,
title or interest; or
(vi) any decree or order of a Court 2[except a
decree or order expressed to be made on a
compromise and comprising immovable property
other than that which is the subject-matter of the
suit or proceeding]; or
(vii) any grant of immovable property by
Government; or (viii) any instrument of partition
made by a Revenue-Officer; or (ix) any order
granting a loan or instrument of collateral security
granted under the Land Improvement Act, 1871,
or the Land Improvement Loans Act, 1883; or
(x) any order granting a loan under the
Agriculturists, Loans Act, 1884, or instrument for
securing the repayment of a loan made under that
Act; or(xa) any order made under the Charitable
Endowments Act, 1890 (6 of 1890), vesting any
property in a Treasurer of Charitable Endowments
or divesting any such Treasurer of any property;
or
(xi) any endorsement on a mortgage-deed
acknowledging the payment of the whole or any
part of the mortgage-money, and any other
receipt for payment of money due under a
mortgage when the receipt does not purport to
extinguish the mortgage; or
(xii) any certificate of sale granted to the
purchaser of any property sold by public auction
by a Civil or Revenue-Officer.
Explanation.–A document purporting or operating
to effect a contract for the sale of immovable
property shall not be deemed to require or ever to
have required registration by reason only of the
fact that such document contains a recital of the
payment of any earnest money or of the whole or
any part of the purchase money.
35
(3) Authorities to adopt a son, executed after the
1st day of January, 1872, and not conferred by a
will, shall also be registered.”
30. The agreement dated 24-03-2007, though styled as an agreement for
sale, recites payment of the entire sale consideration and delivery of
possession of the suit property. A document which evidences transfer of
property inter vivos for consideration and records delivery of possession
squarely falls within the definition of “conveyance” under Section 2(10)
of the Indian Stamp Act, 1899, since it operates to transfer rights in
immovable property and is not otherwise specifically provided for. Once
the instrument answers the description of a conveyance, it necessarily
attracts stamp duty under Article 23 of Schedule I and, more
importantly, becomes compulsorily registrable under Section 17(1)(b) of
the Registration Act, 1908, as it purports to create or declare right, title
and interest in immovable property of value exceeding one hundred
rupees. It is a settled principle of law that title to immovable property
can pass only through a registered instrument where registration is
mandatory. In Suraj Lamp & Industries Pvt. Ltd. v. State of Haryana,
2012 (1) SCC 656, the Hon’ble Supreme Court authoritatively held that
transfer of immovable property by way of agreement to sell coupled with
possession does not convey title and that ownership can be legally and
lawfully transferred only by a registered deed of conveyance. In
paragraphs 16, 19 and 24 of the judgment, it has been held that:-
“16. Section 54 of TP Act makes it clear that a
contract of sale, that is, an agreement of sale
does not, of itself, create any interest in or charge
on such property. This Court in Narandas Karsondas
v. S.A. Kamtam and Anr. (1977) 3 SCC 247,
observed:
36
A contract of sale does not of itself create
any interest in, or charge on, the property.
This is expressly declared in Section 54 of
the Transfer of Property Act. See
Rambaran Prosad v. Ram Mohit Hazra
[1967]1 SCR
293. The fiduciary character of the personal
obligation created by a contract for sale is
recognised in Section 3 of the Specific
Relief Act, 1963, and in Section 91 of the
Trusts Act. The personal obligation created
by a contract of sale is described in Section
40 of the Transfer of Property Act as an
obligation arising out of contract and
annexed to the ownership of property, but
not amounting to an interest or easement
therein.”
In India, the word `transfer’ is defined with
reference to the word `convey’. The word
`conveys’ in section 5 of Transfer of
Property Act is used in the wider sense of
conveying ownership… …that only on
execution of conveyance ownership passes
from one party to another….”
19. Any contract of sale (agreement to sell) which
is not a registered deed of conveyance (deed of
sale) would fall short of the requirements of
sections 54 and 55 of TP Act and will not confer
any title nor transfer any interest in an immovable
property (except to the limited right granted under
section 53A of TP Act). According to TP Act, an
agreement of sale, whether with possession or
without possession, is not a conveyance. Section
54 of TP Act enacts that sale of immoveable
property can be made only by a registered
instrument and an agreement of sale does not
create any interest or charge on its subject matter.
24. We therefore reiterate that immovable
property can be legally and lawfully
transferred/conveyed only by a registered deed of
conveyance. Transactions of the nature of `GPA
sales’ or `SA/GPA/WILL transfers’ do not convey
title and do not amount to transfer, nor can they
be recognized or valid mode of transfer of
immoveable property. The courts will not treat
such transactions as completed or concluded
transfers or as conveyances as they neither
37
convey title nor create any interest in an
immovable property. They cannot be recognized
as deeds of title, except to the limited extent of
section 53A of the TP Act. Such transactions
cannot be relied upon or made the basis for
mutations in Municipal or Revenue Records. What
is stated above will apply not only to deeds of
conveyance in regard to freehold property but
also to transfer of leasehold property. A lease can
be validly transferred only under a registered
Assignment of Lease. It is time that an end is put
to the pernicious practice of SA/GPA/WILL
transactions known as GPA sales.”
31. Similarly, in Narandas Karsandas v. S.A. Kamtam, 1977 (3) SCC 247,
it was held that an agreement of sale does not, by itself, create any
interest in or charge on the property, and title does not pass until a
registered sale deed is executed. In para 32, it has been held that:-
“32. A contract of sale does not of itself create any
interest in, or charge on, the property. This is
expressly declared in Section 54 of the Transfer
of Property Act. See Rambaran Prosad v. Ram
Mohit Hazz The fiduciary character of the
personal obligation created by a contract for sale
is recognised in Section 3 of the Specific Relief
Act, 1963, and in Section 91 of the Trusts Act.
The personal obligation created by a contract of
sale is described in Section 40 of the Transfer of
Property Act as an obligation arising out of
contract and annexed to the ownership of
property, but not amounting to an interest or
easement therein.”
32. In view of Section 49 of the Registration Act, an unregistered document
required to be registered cannot affect immovable property nor be
received as evidence of any transaction affecting such property, except
for limited collateral purposes. Therefore, the unregistered agreement
dated 24-03-2007, even if it recites payment of consideration and
delivery of possession, cannot operate to convey title, and
38
consequently, no declaration of title can be granted in favour of the
plaintiff based on such an unregistered instrument.
33. Defendant No. 1, though he has filed the written statement disputing
delivery of possession under the agreement dated 24-03-2007, has not
entered the witness box to substantiate the pleadings taken by him. It is
a trite law that pleadings are not proof, and a party who asserts a fact
must step into the witness box to depose to such facts and subject
himself to cross-examination. In Vidhyadhar (supra), the Hon’ble
Supreme Court has categorically held that where a party to the suit
does not enter the witness box and does not offer himself for cross-
examination, a presumption would arise that the case set up by him is
not correct. Applying the said principle, the adverse inference
necessarily follows against Defendant No. 1 for withholding himself from
the witness box, particularly when the issue pertains to the delivery of
possession. In the absence of any substantive evidence from
Defendant No. 1 to rebut the plaintiff’s case, the finding recorded on
Issue No. 4 regarding delivery of possession does not warrant
interference. Consequently, the cross-objection filed by Defendant No.
1 challenging the said finding is devoid of merit and is hereby
dismissed.
34. Specific performance is an equitable remedy and discretionary in
nature. While the plaintiff’s acts, payment of consideration, taking
possession, and statutory compliance provide strong support for his
contractual right, the discretionary relief cannot be granted solely on
these facts without demonstrating practical preparedness to perform
39
remaining obligations. The absence of evidence on the plaintiff’s
readiness to execute and register the sale deed, and to bear the
associated costs, creates a legitimate basis for the trial court’s refusal to
grant specific performance. Consequently, while the plaintiff’s claim has
merit on the contractual and part-performance aspects, the dismissal of
the suit for specific performance on the ground of unproven readiness
and willingness is legally sustainable. The appeal, therefore, does not
warrant interference, and the judgment of the trial court is upheld with
respect to the discretionary relief sought. Since the decree of specific
performance of contract is a discretionary relief, and depends upon the
facts of each case, no benefit could be extended to the plaintiff based
on the judgments of “Nathulal” and “Azhar Sultana” cases (supra).
35. Accordingly, the first appeal filed by the plaintiff is dismissed.
36. Parties shall bear their own costs.
37. An appellate decree be drawn accordingly.
Sd/-
(Ravindra Kumar Agrawal)
Judge
ved