C.S. VENKATESH v. A.S.C. MURTHY (D) BY LRS & Ors.

Specific Relief Act, 1963 – s.16(c) – Plaintiff (since deceased) alleged that site in question was allotted in his favour – He commenced construction of building thereon – Since he did not have sufficient funds, defendants advanced money on condition of payment of interest – Plaintiff failed to pay it except for two months – Since the defendants were in need of accommodation, the plaintiff put them in possession of the schedule property by executing mortgage deed – As plaintiff could not pay the interest regularly, defendants asked him to execute a nominal sale deed – Plaintiff executed sale deed dated 23.04.1975 in favour of the defendants for Rs.35,000/- – After defendants having received Rs.35,000/- advanced by them, the plaintiff demanded that the defendants execute reconveyance deed in terms of the agreement of reconveyance dated 23.04.1975 – However, the defendants failed to execute sale deed – Plaintiff filed suit against defendants inter alia for specific performance of agreement of reconveyance dated 23.04.1975 in respect of the schedule property – Dismissed by trial court negativing plaintiff’s claim that sale deed was a nominal one obtained as a security for the amount advanced by the defendants – High Court allowed plaintiff’s appeal – Held: Real character of the transaction has to be ascertained from the provisions of the documents viewed in the light of surrounding circumstances – Since two documents were executed on the same day, the transaction cannot be a mortgage by way of conditional sale in view of the express provisions contained in s.58(c) of the 1882 Act – Perusal of recitals contained in the sale deed shows that the property was agreed to be sold absolutely for Rs.35,000/- – Since the execution of the reconveyance deed has already been established, question of holding the sale deed to be nominal cannot be accepted – Plaintiff alleged that he was ready to pay Rs.35,000/- and called upon the 676 C.S. VENKATESH v. A.S.C. MURTHY (D) BY LRS. & ORS. 677 defendants to execute the re-conveyance deed – However, in para 11 of the plaint it is pleaded that the plaintiff was running contract business wherein he suffered heavy loss and as such he gave up the business – Mere plea that he is ready to pay the consideration, without any material to substantiate this plea, cannot be accepted – Judgment of High Court set aside and that of trial court is restored – Transfer of Property Act, 1882 – s.58(c). Allowing the appeal, the Court HELD: 1.1 A reading of the sale deed marked at Exhibit P-8, along with other surrounding circumstances, would clearly indicate that it is an outright sale. The real character of the transaction has to be ascertained from the provisions of the documents viewed in the light of surrounding circumstances. Since two documents were executed on the same day, the transaction cannot be a mortgage by way of conditional sale in view of the express provisions contained in Section 58(c) of the Transfer of Property Act, 1882. A perusal of the recitals contained in the sale deed at Exhibit P-8 shows that the property was agreed to be sold absolutely for a total consideration of Rs.35,000/-. The language employed in this document is plain and unambiguous and the intention of the parties is also very clear from its recitals. Even the evidence led by the parties does not indicate to the contrary. The intention of the parties was to make the transaction a sale. Since the execution of the reconveyance deed has already been established, question of holding the sale deed to be nominal cannot be accepted. [Paras 12-13][682-G-H; 683-A-B, D-E]

1.2 The words ‘ready and willing’ imply that the plaintiff was prepared to carry out those parts of the contract to their logical end so far as they depend upon his performance. The continuous readiness and willingness on the part of the plaintiff is a condition precedent to grant the relief of performance. 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 contract, the court must take into consideration the conduct of the plaintiff prior, and subsequent to the filing of the suit along with other attending circumstances. The amount which he has to pay the defendant must be of necessity to be proved to be available. Right from the date of the execution of the contract A B C D E F G H 678 SUPREME COURT REPORTS [2020] 2 S.C.R. A B C D E F G H till the date of decree, he must prove that he is ready and willing to perform his part of the contract. The court may infer from the facts and circumstances whether the plaintiff was ready and was always ready to perform his contract. The plaintiff alleged that he was ready to pay Rs.35,000/- to the defendants and called upon them to execute the re-conveyance deed. However, in para 11 of the plaint it is pleaded that the plaintiff was running contract business wherein he suffered heavy loss and as such he gave up the business. It is also pleaded that at present the plaintiff has no business or profession and has no source of income. He has no property, either movable or immovable. Mere plea that he is ready to pay the consideration, without any material to substantiate this plea, cannot be accepted. It is not necessary for the plaintiff to produce ready money, but it is mandatory on his part to prove that he has the means to generate the consideration amount. Except the statement of PW-1, there is absolutely no evidence to show that the plaintiff has the means to make arrangements for payment of consideration under the reconveyance agreement. The trial court rightly held that the plaintiff was not ready and willing to perform his part of the contract. The High Court was not justified in reversing the well-reasoned judgment of the trial court. [Paras 15, 20, 23][683-G-H; 684-A-B; 685-F-H; 686-A-B, E-F] N.P. Thirugnanam (Dead) by LRs. v. Dr. R. Jagan Mohan Rao and Others (1995) 5 SCC 115 : [1995] 2 Suppl. SCR 53; Pushparani S. Sundaram and Others v. Pauline Manomani James (deceased) and Others (2002) 9 SCC 582; Umabai and Anr. v. Nilkanth Dhondiba Chavan (Dead) by LRs. and Anr. (2005) 6 SCC 243 : [2005] 3 SCR 521 – relied on.