DHANBAI Vs. PHEROZSHAH

JUDGEMENT

(1.) THIS second appeal of the defendant is directed against the appellate judgment and decree of District Judge, Pratabgarh, dated August 11,1666 in a suit for specific performance of a contract for the sale of immoveable property situated in Pratabgarh.

(2.) PHEROZSHAH Fardoonji, the husband of the defendant Smt. Dhanbai admittedly died on December 23, 1956 leaving the defendant and their daughter Smt. Zarbai as bis heirs. It seems that he owned plots Nos. 450 and 451, including a petrol godown, in Pratabgarh. Plaintiff PHEROZSHAH is also a resident of Pratabgarh On December 23, 1958, on the second anniversary of the death of the defendant's husband, there was a contract between the plaintiff and "Perozshah Rustamji & Sons" for the sale of the suit land for Rs. 3,501/- in terms of document Ex. 1 executed by the defendant. The defendant received an advance payment of Rs. 101/-frorn the plaintiff and specifically stated in Ex. 1 that she would get the sale deed registered within two days. She further stated that she and her children will have no objection to the sale and that if any objection was raised, she herself would be personally responsible to her children. Then it was stated that "from today onwards the right, title and interest in property will pass in you that is Ferozshah Rustamji & Son." The document was written by Shri Basant Lal Jain P.W. 4, who was a local advocate. The plaintiff raised the present suit on October 18, 1960, alleging that the defendant put him in possession of the suit property, and that he stopped paying the rent to her but that she did not execute the sale deed within the stipulated period of two days. The plaintiff stated in paragraph 2 of the plaint that inspite of his reminder and demand, the sale deed was not executed and that, on the other hand, the defendant gave him a notice on February 3, 1959 refusing to do so. He sent a reply to that notice on February 7, 1959, informing the defendant that if she would not atonce execute the sale deed after registering it and take Rs. 3,400/- from him, proper action would be taken against her. February 8. 1959, was stated to be the date on which the cause of action for the suit arose to the plaintiff. It was further stated in the plaint that Smt. Zarbai T. Marfatia, the daughter of the defendant, filed a suit for cancellation of document Ex. 1, but it was dismissed on August 18, 1960. Thereafter the plaintiff instituted the present suit claiming that he was entitled to get the sale deed executed and registered on payment of Rs. 3,400/-. He prayed for a decree for the execution of the sale deed and for the payment of Rs. 3,400/- to the defendant. He also prayed for a declaration that he was in possession of the suit property as its owner, and that the defendant had no right to interfere with it.

(3.) IT is thus clear that the cases cited by Mr. Gupta do not really help the plaintiff, and the fact remains that his learned counsel has not been able to cite any case in which a view contrary to that stated in Ardashir H. Mama vs. Flora Sasson 2) has been taken, or in which O.6, r. 6 C. P. C [O. 19, r. 14 in England] has been invoked for taking the view that such an averment should be taken to be implied in the pleading. There is therefore no force in the argument of Mr. Gupta to the contrary and it may well be said that the point almost settles itself as a result of the above discussion. I have no hesitation in holding that the plaintiff in an action for specific performance of a contract for the sale of land must plead that he is ready and willing to carry out the contract The repudiation of the contract by the defendant will not relieve him of this obligation.