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Veerappa Lakshmappa Angadi Vs. Siddanagouda Basalinganagouda Dharmayat - Court Judgment

LegalCrystal Citation
SubjectProperty;Contract
CourtKarnataka High Court
Decided On
Case NumberRSA No. 448 of 1976 C/W 558 of 1976
Judge
Reported inILR1985KAR3841
ActsSpecific Relief Act, 1877 - Sections 27A; Transfer of Property Act, 1882 - Sections 53A; Registration Act, 1908 - Sections 2(7), 17, 27A, and 49
AppellantVeerappa Lakshmappa Angadi
RespondentSiddanagouda Basalinganagouda Dharmayat
Appellant AdvocateB P. Holla, Adv. for Udaya Holla, Adv.
Respondent AdvocateA.J. Gunjal, Adv. for J.S. Gunjal, ;K.S. Desai and ;U.L. Narayana Rao, Advs.
DispositionAppeal allowed
Excerpt:
(a) specific relief act, 1877 (central act no.1 of 1877) - section 27a -- contract to be in writing signed by parties thereto and possession of subject matter of lease taken by leasee -- ingredients of section to be satisfied if unregistered lease agreement is to be a basis for specific performance by filing suit.;section 27a of the specific relief act, 1877, applies only if the entire contract is made in writing and further if possession of the entire property, which is the subject matter of the lease, has been taken by the lessee ..... if at all an unregistered agreement to lease has to be used as a basis for specific performance by filing a suit the ingredients of section 27a of the specific relief act have to be satisfied.;(b) transfer of property act, 1882 (central act no. 4 of 1882).....nesargi, j1. i.a. no. iii in r.s.a. no. 448 of 1976 and la. no. ii in r.s.a. no. 558 of 1976 have not been as yet disposed of. one and the same person has filed these i.a.s. he has sought to be impleaded as a party on the ground that respondent-1, who has expired, has executed a will in his favour. as the appeal has been heard and is being disposed of on merits, it would be proper to decide this question at the end.1 (a). respondents 1 and 2 in these two appeals are the same. respondent-1 was plaintiff-1 and respondent-2 was plaintiff-2 in l.c.s. 21 of 1967 on the file of the iiadditional munsiff, gadag. appellant in r.s.a. 448 of 1976 was defendant no. 2 and appellant in r.s.a. 558 of 1976 was defendant no. 1.2. the property in question is cts no. 6707 a site measuring 1111 sq. yards, in.....
Judgment:

Nesargi, J

1. I.A. No. III in R.S.A. No. 448 of 1976 and LA. No. II in R.S.A. No. 558 of 1976 have not been as yet disposed of. One and the same person has filed these I.A.s. He has sought to be impleaded as a party on the ground that respondent-1, who has expired, has executed a will in his favour. As the appeal has been heard and is being disposed of on merits, it would be proper to decide this question at the end.

1 (A). Respondents 1 and 2 in these two appeals are the same. Respondent-1 was plaintiff-1 and respondent-2 was plaintiff-2 in L.C.S. 21 of 1967 on the file of the IIAdditional Munsiff, Gadag. Appellant in R.S.A. 448 of 1976 was defendant No. 2 and appellant in R.S.A. 558 of 1976 was defendant No. 1.

2. The property in question is CTS No. 6707 a site measuring 1111 sq. yards, in Gadag Town. Plaintiff No. 1 and No. 2 have died during the pendency of the appeal and their L. Rs. have been brought on record. A memo is filed today that L.R. No. 1 (c) that is respondent 1 (c) had died on 1-2-1983.

3. The facts are : That the suit property belongs to defendant No. 1-Muth. One Amarappagouda Channabasanagouda Patil, who was examined as PW-4 was holding a power of attorney of the defendant No. 1, Plaintiffs filed the suit in question for specific performance of the suit agreement Ex. P. 16, dated 25-11-1961 said to have been executed by Amarappagouda Channabasanagouda Patil as General power of Attorney Holder of defendant No. 1, (hereinafter referred to as 'GPAH'), agreeing to lease the suit property for 99 years on certain terms. Ex.P. 16 is an unregistered document, but has been written on a stamp paper.

4. The case of the defendants was that Ex. P. 16 is not a genuine document, it is a document which has been ante-dated because defendant No. 1 agreed to lease the suitproperty to defendant No. 2, under the registered deed Ex P. 5 for 99 years on 10-9-62 and on 16-3-1964 executed a registered lease deed as per Ex. D.6. The plaintiffs intended to deprive the defendants of the benefit of this transaction. It was also contended that the GPAH had been removed long back by defendant No. 1 and he had colluded with the plaintiffs to create Ex.P. 16.

5. The facts found by the two Courts below are :

1) Ex.P. 16 is a genuine document and it has been satisfactorily proved.

2) Plaintiffs had come into possession of the suit property from 1-2-1964 as claimed by them and that they were entitled to a decree for specific performance on these facts.

6. Sri B.P. Holla, the learned Advocate appearing for the appellants urged that the two Courts below have ignored contradictions and variances available in the evidence relied upon by the plaintiffs while concluding that Ex. P. 16 was a genuine document and was not an ante-dated document. In view of the two Courts below having applied their minds to the evidence adduced and having regard to the concurrent finding on fact that Ex.P. 16 was a genuine document, I cannot accept this argument of Sri Holla, because of the limitations imposed by Section 100 of the Code of Civil Procedure.

7. Sri Holla, nextly argued that Ex. P. 16 is inadmissible in view of Section 27A of the Specific Relief Act, 1877, which governs the transaction in question and was in force prior to the coming into force of the Specific Relief Act, 1963 and the two Courts below have committed an error in law in relying on Ex. P. 16.

8. This argument was met by the other side by contending that Ex. P. 16 does not fall within the purview of Section 27A of the Specific Relief Act, 1877 (hereinafter referred to as the old Specific Relief Act). In view of the evidence of PW-1 disclosing that he and the other plaintiff had executed a counterpart to Ex. P. 16, affixed signatures and handed over the same to defendant No. l's GPAH and therefore, Ex. P. 16 and the counterpart satisfy the requirement of Section 27A of the Old Specific Relief Act. It was also contended that the suit filed by the plaintiffs was to enforce the oralagreement of lease and Ex. P. 16 is only evidence of that oral agreement.

9. Sri B. P. Holla, replied that the theory of counterpart having been executed by the plaintiffs has been put forward by the plaintiffs before this Court for the first time and even then the material on record does not support it, except stray sentences in the examination in chief of PW-1 and that a reading of the plaint and the relevant provisions of law viz., Order VII Rule 14 of the Code of Civil Procedure, discloses that the counterpart of Ex. P. 16 was never in the picture upto the stage of argument in this appeal and as a result the theory of the suit having been based on the oral agreement cannot be accepted as it cannot bear any kind ofconsideration when the plaint averments and the evidence of P. W. 1 and the witnesses are scrutinised.

10. The records show that a list with documents was filed along with the plaint. That list does not contain any narration in regard to the counter agreement. Ex. P. 16 has been produced in that list along with the plaint. A reading of paragraph 3 of the plaint, which is in Kannada shows that the agreement, the specific performance of which has been sought in the suit is referred to as the 'dawada vachana patra'. It is not referred to as art oral agreement. Therefore, the argument of Sri Narayana Rao that the suit is based on an oral agreement and as such plaintiffs are entitled to take shelter under the provisions of law settled by the Calcutta High Court in Monfar Raja -v.- Rowsan Kamar : AIR1943Cal586 cannot be accepted. I have no hesitation in recording a finding that the suit for specific performance could have been based only on the 'dawada vachana patra' which can only be Ex. P. 16.

11. Now the question :- whether the counterpart of Ex. P. 16 had been executed by the plaintiffs in favour of defendant No. 1 and handed over by the plaintiffs to GPAH in the presence of defendant No. 1 is to be gone into. This Court does not have the benefit of the finding on this aspect as recorded by the two Courts below, apparently because this aspect was not placed before the two Courts below and the two Courts below were not required to consider this aspect. This argument has been advanced by Sri Narayana Rao in order to meet the contention of the defendants in view of Section 27 A of the Old Specific Relief Act. Sri Narayana Rao, contended that PW-1 has stated that GPAH had taken the counter agreement from him and the other plaintiff. He further pointed out that this part of his evidence has remained unchallenged and also that the cross-examination of PW-1 has not demolished this part of the evidence of PW-1. He nextly placed reliance on Exs. P. 6 and P. 7, which are the original statement and certified copy of the statement of one Fakkrigouda, recorded on 3-11-1965 during the CTS enquiry by the officer authorised to record it. It is available in Ex. P. 6 that a counter agreement had been executed by the plaintiffs in favour of defendant No. 1.

12. Ex. P. 6 is the original statement said to have been given by Fakkirgouda. PW-1 has sworn that Fakkirgouda is no more, Ex. P. 6 would be admissible in evidence only if it falls under the provisions of Section 32 or 33 of the Indian Evidence Act. If at all Section 32 of the Indian Evidence Act is to apply, it can only be sub-sections (4) and (7) which read as follows:

'(4) When the statement gives the opinion of any such person, as to the existence of any public right or custom or matter of public or general interest, of the existence of which, if it existed, he would have been likely to be aware, and when such statement was made before any controversy as to such right, custom or matter had arisen.

XX XX XX XX(7) When the statement is contained in any deed, will or other document which relates to any such transaction as is mentioned in Section 13, Clause (a).'

A plain reading of these provisions makes it abundantly clear that Ex. P. 6 does not fall within the ambit of these provisions. Section 33 of the Evidence Act, reads as follows :

'33. Evidence given by a witness in a judicial proceeding, or before any person authorised by law to take it, is relevant for the purpose of proving, in a subsequent judicial proceeding, or in a later stage of the same Judicial proceeding, the truth of the facts which it states, when the witness is dead or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party, or if his presence cannot be obtained without an amount of delay or expense which, under the circum-stances of the case, the Court considers unreasonable : -

Provided --

that the preceeding was between the same parties or their representatives in interest ;

that the adverse party in the first proceeding had the right and opportunity to cross-examine ;

that the question in issue were substantially the same in the first as in the second proceeding.

Explanation -- A criminal trial or inquiry shall be deemed to be a proceeding between the prosecutor and the accused within the meaning o f this section.'

Here again I have no hesitation in holding that Ex. P. 6 cannot fall within the ambit of this Section. Hence Ex. P. 6 will not be available as evidence in support of the proof of the fact that a counter agreement had been executed.

13. At this stage it is to be noticed that this Court may be required to address itself to the evidence on record in proof of this fact, though it is exercising jurisdiction under Section 100 C.P.C. It is pointed out, before proceeding to do so, that the plaintiffs are trying to rely on the counter agreement in support of the agreement to lease, the specific performance of which they have sought. This is one aspect. The other aspect as argued by Sri B.P. Holla is that the agreement and the counter agreement would form one transaction. But the suit is based only on Ex.P. 16 and therefore, the two Courts below could not have decreed the suit. I am not impressed by the argument of Sri B.P. Holla. The suit is based on the contract viz., agreement to lease. Ex. P. 16 has been produced along with the plaint. It is up to the plaintiffs to establish how that agreement of lease came into existence and what are its terms. Law permits them to adduce evidence in proof of these facts. May be the evidence would be incomplete in the absence of the counter agreement. It is at this stage the provisions of Order VII Rule 14 of the Code of Civil Procedure would become pertinent. Order VII Rule 14 of the Code of Civil Procedure, reads as follows :-

'14. Production of document on which plaintiff sues :- (1) Where a plaintiff sues upon a document in his possession or power, he shall produce it in Court when the plaint is presented, and shall at the same time deliver the document or a copy thereof to be filed with the plaint.

(2) List of other documents :- Where he relies on any documents (whether in his possession or power or not) as evidence in support of his claim, he shall enter such documents in a list to be added or appended to the plaint.'

So far as sub rule (1) is concerned the plaintiff has produced Ex. P. 16 along with the plaint. So far as sub rule (2) is concerned, the plaintiff has filed a list of documents along with the plaint. That list is available on record. He has nowhere referred to any other document not in hispossession in the said list. He has no where referred to the counter agreement in the said list. But sub-rule (2) requires that a list of such documents on which the plaintiff relies as evidence in support of his claim for specificperformance, is to be produced. Hence it is clear that when the plaint was presented and the case progressed, the counter agreement was never in the mind of the plaintiffs. It is only when PW-1 was examined in chief that he has stated this fact by giving out stray sentences. The argument of Sri Narayana Rao, that this part of the evidence has not been challenged by the defendants cannot be accepted, becausethe case of the defendants is Ex, P. 16 was not in existence and it was concocted later by securing an earlier dated stamp paper andantedating it. When Ex. P. 16 is itself seriously challenged, it would be idle to say that the alleged counter-agreement has not been challenged. Therefore, I have no hesitation in concluding that a new question of fact is sought to be put forward during the argument of these second appeals. This is not permissible.

14. This takes me to the argument on the application of Section 27A of the old Specific Relief Act. Section 27A of the Old Specific Relief Act, reads as follows :-

'27A. Subject to the provisions of this Chapter, where a contract to lease immoveable property is made in writing signed by the parties thereto or on their behalf, either party may, notwithstanding that the contract, though required to be registered, has not been registered, sue the other for specific performance of the contract, if,-

(a) Where specific performance is claimed by the lessor, he has delivered possession of the property to thelessee in part performance of the contract ; and

(b) Where specific performance is claimed by the lessee he has, in part performance of the contract, taken possession of the property, or being already in possession, continues in possession in part performance, of the contract, and has done some act in furtherance of the contract ;

Provided that nothing in this Section shall affect the rights of the transferee for consideration who has no notice of the contract or part performance thereof.

This Section applies to contracts to lease executed after the first day of April, 1930.'?

Sri Holla, argued that Ex.P. 16 is signed by GPAH only. It is not signed by either of or the two plaintiffs. Therefore, it cannot be considered as a writing signed by the parties to the agreement or contract of agreement to lease. Hence, the main ingredient of Section 27A of the Old Specific Relief Act would not be satisfied. He placed reliance on the Full Bench decision of the Andhra Pradesh High Court in Sanyasi Raju -v.- Kamapaddu : AIR1960AP83 . It has been laid down in the said decision that in a suit for specific performance based on an unregistered agreement of lease signed by one party, Section 27A of the Old Specific Relief Act would beapplicable. It is also laid down therein that though the concerned party is in possession of the said property, Section 53A of the Transfer of Property Act was only available as defence and not for securing a decree for specificperformance. Sri Narayana Rao, argued that even though Ex. P.16 is not admissible in evidence, when the agreement of lease has been held proved a decree for specific performance has to be granted in law as laid down by the Calcutta High Court in Monfar Raja -v.- Rowsan Kamar. Sri Narayana Rao was particular in bringing my attention to thefollowing passage:

'As regards the first point, it is clear from Section 27A, Specific Relief Act, that its object is not to take away the right to claim specific performance in caseswhere such right existed before the introduction of that Section in Chapter 2, Specific Relief Act, by the Transfer of Property (Amendment) Supplementary Act, 20 of 1929. If the contract which is sought to be specifically enforced by the plaintiff is a contract to lease, as contemplated by that Section (a contract in writing signed by both the parties but not registered), the plaintiff cannot claim specific performance of such a contract without complying with the conditions mentioned in that Section. If, however, a contract does not come under that Section, there is nothing in that Section which takes away the right of the plain-tiff to enforce such a contract independently of the provisions of that Section : vide the case in I.L.R. (1938) 1 Cal. 563. The contract which is sought to be enforced in the present case is not a contract to lease within the meaning of Section 21A, specific Relief Act. Section 27A, Specific Relief Act, therefore, does not stand in the way of the specific performance of this contract.'

Now the scope of Section 27 A of the Old Specific Relief Act, Section 53A of the Transfer of Property Act and Proviso to Section 49 of the Registration Act, are to be gone into. These three provisions were introduced in the respective Acts at one and the same time by the Transfer of Property (Amendment) Supplementary Act, 20 of 1929. Section 3 of the said Act introduced Section 27A in Old Specific Relief Act. Section 15 of the said Act introduced Section 53A to the Transfer of Property Act and Section 10 of the said Act introduced the Proviso to Section 49 of the Registration Act. The scope, ambit, operation and effect of these three provisions has been analysed and clearly put forth in the decision of Balram -v.- Mahadeo . In paragraphs 22 to 33 of the decision ; They read as follows :

'22. 'Writing' means different things under different Acts. Section 49, Registration Act, speaks of ''documents' which are required to be registered by Section 17 of by any provision of the Transfer of Property Act. Had it not been for the definition of 'lease' given in Section 2{7) Registration Act, an agreement to lease would not have been covered by Section 17 any more than an agreement to sell which is just as much a contract requiring apromise and promisee as an agreement to lease ; and yet an agreement to sell is undoubtedly a 'document' and so a 'writing' even when it is executed by only one party, as it usually is. It embodies the 'terms of a contract' within the meaning of Sections 91 and 92, Evidence Act.

23. The mere fact that both parties have not signed the contract would not make the agreement oral within the meaning of Sections 91 & 92 because these Sections do not require the whole contract, in the sense of signatures and dates and so forth, to be embodied in the writing but only 'the terms.' Therefore, even when the signatures are absent, or the proposal and acceptance are not entered in it, it would still be hit by Sections 91 and 92 provided the 'terms' are reduced to writing. Of course all the 'terms' must be there, if some are oral and some written, the writing would not be the final depository of the conditions agreed to and would not, therefore, be hit by Sections 91 and 92. But if all the terms are there, these Sections would, in our opinion, be attracted even if there are no signatures and no proposal and acceptance or date embodied in the document.

24. The absence of a signature could be used as evidence, and good evidence, of the fact that the document was not intended to be final and binding. But that would depend on the facts of each case. The point is that mere absence of signatures would not prevent the document from being the final depository of the intention of the parties, if the fact could be proved, any more than the presence of signatures would operate to bind if it could be established that the signing was conditional. Section 53-A.T.P. Act which requires the signature of only one party is a sufficient illustration of this.

25. We are aware that there are English cases under the Statute of Frauds and some other Acts which would appear to take a different view regarding 'written' contracts. But as we have explained, that is because 'writing' means different things in different Acts. We are governed here by our own Acts. The Transfer of Property Act does not deal with an agreement to lease and consequently requires neither writing nor registration for such an agreement. It is the Contract Act which applies and under that, contract to lease can be either oral or written, just as other contracts. If it is oral, then it can be specifically enforced under Section 12, Specific Relief Act, but if it is written, or, as the Registration Act calls it, reduced to a 'document', then Section 49, Registration Act comes into play and the document is excluded unless it can be brought within the ambit of the proviso.

26. Now the proviso, read with Sections 12 and 27-A, Specific Relief Act, can be interpreted in two ways. One is to regard Section 49 as removing the bar of exclusion from evidence of an unregistereddocument in all cases where the suit is for specific performance of a contract under Chapter II, Specific Relief Act. This is such a suit, therefore, on this reading of the Section the document can be received in evidence. If it can be received in evidence, then, as Section 27-A does not apply, the matter is covered by the general provisions of Section 12 and so the agreement can be specifically enforced in the same way as an oral agreement.

27. The other method of interpretation, and the one which appeals to us, is to regard the Specific Relief Act as the primary and substantive source of the right and to look upon Section 49 as ancillary, touching a matter of procedure.

28. Section 27A was introduced to modify the then existing law. It was considered unjust, when there is a written agreement to lease accompanied by part performance, to leave the other side without a remedy because of the technicality of registration. The rigour of the law was therefore modified. But it was only modified and not swept away altogether. Both Section 27A and the corresponding Section (Section 53-A) in the T.P. Act impose limitations.

29. Section 53A enables a person in possession to defend his possession in certain cases even though he has no title. But the fight isrestricted. It can only be done in certain cases, There must, for example, be 'a contract to transfer for consideration' and this must be 'in writing signed by him or on his behalf.'

30. Now, it will be seen that if there had been a transfer of possession in this case and the present plaintiff had been defending his possession, there would have been no difficulty because Section 53A does not require the contract to be signed by both sides. It is enough if one signs, and that, as we have said, bears out what we have said regarding 'written'contracts. It is evident that there can be no contract to transferimmoveable property for consideration unless both sides agree the one to transfer and the other to pay, and both agree about the price, and yet that con-tract is considered to be in writing under Section 53A even though only one side signs. However, to return to the present point.

31. Section 53A does not confer title. It enables a person without title to defend his possession in certain cases. Section 27A goes further and enables a lessee in possession to obtain a good title for him-self. An agreement to sell did not require registration even before the amending Act, so there was no need to amend the law there. Either side could claim specific performance within limitation and so get a good title. But lessors and lessees were at a disadvantage. Section 27A was there-fore introduced to ameliorate their position. But here again the legislature saw fit to impose conditions and we consider ourselves bound to giveeffect to them, Two of the conditions, when the agreement is in writing and is otherwise hit by the Registration Act, are (l) that the writing be signed by both sides and (2) that the lessee have possession.

32. In our judgment the words : 'Notwithstanding that the contract, though required to be registered, has not been registered,' contain the key to the section. These words would be necessary if the proviso to Section 49, Registration Act were to be regarded as sweeping away the necessity for registration in all cases of a written agreement to lease. We do not think it does. Section 17(1)(d) is left intact. It is not abrogated. Even the proviso to Section 49 speaks of an unregistered document. 'Required by this Act to be registered.' It does not sweep away the necessity for registration. It merely removes a bar in the law of evidence - but only in restricted circumstances. Therefore, the necessity for registration is still there, or, to put it in other words, Section 17(1)(d) still 'requires the document to be registered.'

33. Now Section 27-A, Specific Relief Act seizes upon some only for the range of contracts which are 'required to be registered,' namely those which are signed by both parties and where, in addition, the lessee is in possession under the contract. It does not alter the law regarding the rest. Therefore, in our judgment, the proviso to Section 49, only lifts the ban of inadmissibility on documents covered by Section 27-A. As Ex. P.I is not such a document, and as the agreement embodied in it cannot be regarded as oral, specific performance is not possible.''

I have got to express that the way it has been lucidly ex-pressed as above, leaves do scope for any further analysis of these provisions and come to a different conclusion. The Supreme Court has in the decision in Delhi Motor Co. -v.-V.A. Basrurkar : [1968]2SCR720 dealt with Section 53-A of the Transfer of Property Act and Section 27-A of the Old Specific Relief Act. It has laid down that the provisions of Section 53-A of the Transfer of Property Act is available only as a defence and cannot be invoked for enforcing rights under unregistered lease, and that Section 27-A of the Specific Relief Act (Old Specific Relief Act) applies only if the entire contract is made in writing and further if possession of the entire property which is the subject matter of the lease, has been taken by the lessee. Further on, the Supreme Court in the decision in Ranchhoddas v.- Devaji AIR 1977 SC 1570 reiterated the principles that the provisions of Section 53-A of the Transfer of Property Act can be used only for defending one's possession. These decisions have held that Section 53-A is a shield and not a sword. In view of the foregoing I respectfully agree with the principles laid down by the Nagpur High Court in . The reasoning in the decision : AIR1943Cal586 will not be in consonance with the principles as laid down above. I express with great respect to the learned Judges that I am unable to accept that reasoning.

15. The facts held proved are that the plaintiffs have been in possession from 1-2-1964 because till 31-1-1964 the property was in possession of the Municipality forconstruction of a Post Mortem House in the same property, and the Municipality handed over possession to the plaintiffs on 1-2-1964. PW-1 himself has not sworn in his evidence that he took possession from defendant No. 1 or defendant No.2, but says that they simply went and took possession of the property. It may be that they took possession of theproperty by themselves. This might be to satisfy the necessary ingredients under Section 27A of the Old Specific Relief Act. But the main hurdle is the fact that Ex, P. 16 does not have a counter agreement and it is signed only by the GPAH. A plain reading of Section 27-A of the Old Specific Relief Act, makes it clear that such a writing would not fall within its ambit. As laid down in , the proviso to Section 49 of the Registration Act, lifts the ban of inadmissibility of such an unregistered document. That would only make Ex. P. 16 admissible in evidence, but does not go to the extent of making it evidence of agreement of lease. Section 2(7) of the Registration Act, reads as follows :

'lease' includes a counterpart, Kabuliyat, an undertaking to cultivate or occupy, and an agreement to lease ;'

This shows that the agreement to lease is deemed to be a lease for the purpose of Section 17(d) of the Registration Act. Therefore, Ex. P. 16 was compulsorily registrable. If at all an unregistered agreement to lease has to be used as a basis for specific performance by filing a suit, the ingredients of Section 27A of the Specific Relief Act have to be satisfied. Section 4(c) of the Old Specific Relief Act reads as follows :

'4. Except where it is herein otherwise expressly enacted, nothing in this Act shall be deemed

(a)

(c) to affect the operation of the Indian Registration Act on documents.'

What is expressly enacted in the old Specific Relief Act is Section 27 A of the Act. Therefore, it is not permissible to use Ex. P. 16 as evidence of the contract of agreement to lease relied upon by the plaintiffs to seek specific performance of the said contract.

16. The lower Appellate Court has brushed aside this contention of law by merely observing in two sentences that the contention has no force as would be clear from a reading of the provisions of Section 27A of the Old Specific Relief Act and proviso to Section 49 of the Registration Act. As is clear from the discussion in the preceding paragraphs the question of law is such as could not have been answered in the simplest way adopted by the lower Appellate Court.

17. Sri B. P. Holla, argued that even prior to the introduction of Section 16(c) of the Specific Relief Act, 1963, the decisions of various High Courts and the Privy Council made it mandatory that it should be averred in the plaint that the plaintiffs were ready and have been ready and willing to-perform their part of the contract and that averment should be proved, But the same is absent in this case. Thisargument does not impress me in view of what has been stated in plaint para 14 and what P.W. 1 has stated in his evidence and which fact is supported by other material. It is not, in my opinion, necessary to advert to that material. Hence, I do not accept this argument.

18. But in view of the position of law on the basis of Section 27A of the Old Specific Relief Act, it will have to be held that the decree for specific performance granted to the plaintiffs cannot be sustained.

19. Original Respondents 1 and 2 had succeeded in the two Courts below. It is now held that the suit filed by both is not maintainable and their representatives have contested these appeals on merits. Therefore, no practical purpose would be served by considering IA. III in R.S.A. No. 448 of 1976 and I.A. No. II in R.S.A. No. 558 of 1976 on merits. Hence, LA. III in R.S.A. No. 448 of 1976 and LA. II in R.S.A. 558 of 1976 are dismissed.

20. Before closing the Judgment it is to be observed that the death of L.R. 1-C of Respondent-l doss not have any affection these appeals becausethe appeals abate only as against him and the appellants' right to prosecute the appeals survives.

In view of the foregoing, the appeals are allowed with costs throughout. The judgments and decrees of the two Courts below are ser aside. The suit of the plaintiffs is dismissed.


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