AI Drafter - (New and Powerful) 
Generate professional replies, appeals, opinions to Show Cause Notices, assessment orders, audit objections, and other legal communications using TaxTMI's AI Drafter. 
TaxTMI 
TaxTMI 
1968 (2) TMI 130
X X X X Extracts X X X X
X X X X Extracts X X X X
....n X'ray Clinic at Nizamabad, and has been carrying on his profession at Nizamabad since 1952, and living there with the 1st defendant, whom he married in 1950. Jaganmohan Rao, the 2nd defendant, though he obtained Master's Decree in Arts, settled down in Moparru and is attending to the cultivation of his lands. The lands which fell to the share of Varaprasada Rao were managed by Rangayya, who was keeping the income therefrom. It is not disputed that the relations between the father and his two sons, despite the division of the properties, were cordial and affectionate. 2. The mother of the 1st defendant owned Ac. 14-54 of Seri Magani land situate in five survey numbers in Nelapadu village, also in Tenali Sub-District, having got it from her father. Out of the said land, she gifted in 1955 Ac. 10-00 (the suit land) to her daughter, the 1st defendant, and the rest of the land to her elder brother, by two separate deeds. Lingarao Chowdary, husband of the 1st defendant's elder sister, who arranged the marriage of the 1st defendant, was managing the suit land, leasing it to tenants, collecting the Makta, and remitting it to the 1st defendant. Evidently apprehending legisl....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ed period, and the price paid to them (D-1 and D-2) according to that measurement. 4. In the plaint it was averred that in addition to Rs. 2,000 the plaintiff paid Rs. 10,000 to the 2nd defendant on behalf of both the defendants, on 18th January, 1960, and obtained the receipt, Exhibit A-2. The land was also measured in 1961, and the extent of Ac. 10.00 determined. The plaintiff made the balance of consideration ready before 22nd August, 1961, and was demanding the fulfillment of the terms of the contract, but the defendants were putting off the same. Thereupon, he issued telegraphic notices to both the defendants on 21st August, 1961. The plaintiff effected improvements to the land spending Rs. 5,000 as a result of which the yield increased from 4 to 5 to 20 or 25 bags, per acre and the price of the land also rose from Rs. 3,000 to Rs. 5,000 per acre, and there were offers from others at that rate. The defendants with a view to make profit stated that there was no necessity to furnish security, and that he should take the sale deed without security, or give up the contract altogether. The plaintiff had always been ready and willing to perform his part of the contract but the de....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... that the land was yielding 20 or 25 bags per acre even on the date of the contract. The defendant sent a proper reply to the telegraphic notice, and as the plaintiff in anticipation of her suit to recover possession, filed the suit for specific performance. 6. The 2nd defendant, in a separate written statement, contended that he was neither a necessary nor a proper party to the suit, as his only obligation was to give security in the event of the plaintiff being entitled to get a sale deed from the 1st defendant. The plaintiff was guilty of laches, and had not fulfilled the terms of the contract under which time was the essence. He is therefore, not entitled to specific performance. The 2nd defendant cannot be made liable for damages. He admitted that the plaintiff paid him Rs. 10,000 on 18th January, 1960 though admittedly, he was not the owner of the property. The payment was made on the plaintiff's own responsibility, and not because the 2nd defendant was the agent of the 1st defendant for that purpose. There was no authorisation in that regard. When the 2nd defendant remonstrated with the plaintiff that the contract was annulled for non-payment of Rs. 8,000 on or before....
X X X X Extracts X X X X
X X X X Extracts X X X X
....- (1) Whether the time for payment of Rs. 8,000 on or before 22nd August, 1958 is the essence of the contract. (2) Even if it is found in the affirmative, whether the contract has been avoided by the 1st defendant. (3) Whether the receipt of Rs. 10,000 by the 2nd defendant was binding on the 1st defendant, and amounted to a waiver of the 1st defendant's right to rescind the contract. (4) Apart from the delay in the payment of Rs. 8,000 whether plaintiff was otherwise ready and willing to perform the contract. (5) Whether the plaintiff is disentitled to claim specific performance either on the ground of default in payment of Rs. 8,000 or his not being ready and willing to perform the contract. (6) Whether the plaintiff became disentitled to specific performance by reason of the clause relating to security in Exhibit A-1 and Exhibit B-3, being vague and indefinite, and therefore void. 10. We shall now consider the validity of these contentions. The first three can conveniently be taken up together. 11. The law bearing on the question, when time is of the essence of the contract in the case of an agreement to sell land is well established. Section 55 of the....
X X X X Extracts X X X X
X X X X Extracts X X X X
....essence, is only voidable, it is enforceable by law at the option of the promisee, but not at the option of the promissor. It is therefore, necessary that the rescission must be express and unequivocal, whether it be by communicating the rescission as provided for in section 66, or bringing a suit to set aside the contract. 16. In the leading case of Jamshed Khodaram Irani v. Burjorji Bhunjibhai L.R. (1916) 43 IndAp 26 : (1916) 30 M.L.J. 186 : I.L.R. 40 Bom. 289 : A.I.R. 1915 P.C. 83, the Privy Council laid down that section 55 of the Contract Act did not lay down any principle which differed from those that obtained as regards contracts for the sale of land by which equity in such a case looks, not at the letter, but at the substance of the agreement in order to ascertain whether the parties, notwithstanding that they named a specific time within which completion was to take place, really intended no more than it should take place within a reasonable time. It was also laid down that equity will also infer an intention that time should be of the essence of a contract from what has passed between the parties prior to the signing of the contract, the construction of which cannot, ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....these time limits were of merely secondary importance in the bargain, and that to disregard them would be to disregard nothing that lay as its foundation. His Lordship also observed that intention to make time of the essence of the contract may be evidenced by either express stipulations or by circumstances which are sufficiently strong to displace the ordinary presumption that in a contract of sale of land stipulation as to time are not of the essence. It was also held that even if time was not originally of the essence, the appellants could by notice served upon the respondent call upon him to take the conveyance within the time fixed and intimate that on default of compliance with the requisition the contract would be treated as cancelled. 19. Bearing these principles in mind, we shall now examine the evidence in this case as to whether the time for payment of Rs. 8,000 was of the essence of the contract. The answer to that mainly depends upon the construction of the contract as embodied in Exhibit A-1 and B-3. The relevant recitals in Exhibit A-1 are as follows:-- The 1st defendant had been residing at Nizamabad, and consequently unable to cultivate the suit lands. By lea....
X X X X Extracts X X X X
X X X X Extracts X X X X
....,000 were stipulated to be paid within 2 1/2 months, while the balance of Rs. 20,000 was to be paid only after three years, the parties might have thought it fit to provide for interest in respect of Rs. 20,000, but not for Rs. 8,000. That circumstance alone does not establish an intention of the parties contrary to the legal presumption. 22. The next document for consideration is Exhibit B-2, a letter dated 6th August, 1958, purporting to be signed by the plaintiff and addressed to Rangayya (D.W. 2). The plaintiff denied his signature as well as having written it. In this letter, it is stated that the plaintiff bargained for the sale of his land in Burrapalem, but that was not settled, and that as soon as it was settled, he would pay Rs. 8,000 with interest. The plaintiff wanted to explain to D.W. 2 all the facts personally, but as he was informed that it was not necessary, that letter was sent. It was also stated that the plaintiff was going to Mahabubabad, and that D.W. 2 should not think that the amount was not paid, and that it would be paid with interest by harvesting time. It was also stated in Exhibit B-2 that he wanted even to borrow on interest, but it could not be pro....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... an inland letter paper bearing the postal seals, it is difficult to hold that it was brought into existence. Even so, Exhibit B-4 only expresses the opinion of the 1st defendant's husband regarding the default. It does not say that the parties intended that the time for payment of Rs. 8,000 was of the essence of the contract, or that his wife was unwilling to extend the time, or that she had authorised him to write that letter. He only expressed his opinion that it might land to trouble if the contract is not cancelled. The most significant fact is that Exhibit B-4 does not say that D-1 or her husband who wrote that letter, would give or had already given a notice cancelling the contract, but only suggested that D.W. 2 might send a notice and take back possession. Nor does this letter recite, as put forward in defence evidence, that the 1st defendant intended to purchase the land of Dr. Krishna Murthy in Nizamabad, relying upon this payment of Rs. 8,000 and that that contract had fallen through by reason of the non-payment by the plaintiff. This letter therefore, does not at all establish the existence of any circumstances before the contract was executed, and to the knowledge....
X X X X Extracts X X X X
X X X X Extracts X X X X
....d no rights under the contract and that Rs. 2,000 paid by the plaintiff on 6th June, 1958 had become forfeited. Even in this reply the 1st defendant only stated that she treated the contract as cancelled, but not that it was ever communicated to the plaintiff, or, in what manner and by whom. In Exhibit A-9 she denied the fact of payment of Rs. 10,000 and stated that she did not authorise any one to receive it on her behalf, and that, even if true, it would not bind her. It recited that the plaintiff delayed the contract very much and, contravened the essential term of the contract, and, therefore, he had no cause of action. The reply concluded by saying that as the contract was cancelled, the plaintiff had no right to be in possession of the property, and was liable to pay rent at 18 bags per acre for the last three years. 27. Even in this notice D-1 did not assert that the 1st defendant or her husband or D.W. 2 on her behalf rescinded the contract, or communicated it to the plaintiff. It is specially significant to note that even in Exhibit A-9 she did not state that because she intended to purchase from Dr. Krishna Murthy land in Nizamabad with that sum of Rs. 8,000, that time....
X X X X Extracts X X X X
X X X X Extracts X X X X
....d was charged with securing the performance of the contract, and by Exhibit B-4 he was even requested by the 1st defendant's husband to cancel the contract. It is also admitted by defendant 1 that D.W. 2 was the person who gave instructions for preparing the written statement, and in charge of the conduct of the suit on her behalf. The omission in the written statement to put forward a positive and specific case regarding the circumstances existing before the contract which made time the essence of contract, or why it was not cancelled either by D.W. 2 or by D.W. 1, apart from the other omission referred to supra, establish that the case now put forward by the defendant is not true, and that the written statement was kept vague with a view to improve the case during trial. 29. The 1st defendants D.W. 1 deposed that ten days before the contract her father-in-law (D.W. 2) came to Nizamabad and told her that the plaintiff was willing to purchase the suit land at Rs. 3,000 per acre, and asked for her opinion, and she told him that it would be sold at that rate, but the vendee must pay at least Rs. 10,000 as advance, so that she could acquire land at Nizamabad. She stated that P.....
X X X X Extracts X X X X
X X X X Extracts X X X X
....1961, D-2 sent word through D.W. 3 that the plaintiff paid Rs. 10,000 subject to the condition that he (the plaintiff) would obtain her consent and ratification for the payment, and enquiring whether he (D-2) could retain the money, or should return it to the plaintiff. She replied that she did not want to receive the money. She denied the suggestion that there were disputes between herself and D-2 with regard to the keeping of Rs. 10,000, and consequently the sale-deed was not executed. 30. The evidence of the 1st defendant that time for paying Rs. 8,000, was of the essence of the contract cannot be accepted for several reasons. If really she wanted that the contract should be finalised in her presence, and, therefore, the plaintiff and D.W. 2 came to Nizamabad with the agreement, and she, her husband and D.W. 2 all wanted that payment of Rs. 8,000 by 22nd August, 1958, should be of the essence of the contract, the easiest thing would have been to have such a clause inserted in Exhibit A-1 especially when, according to her, the plaintiff was also present. But admittedly, that was not done, and there is no explanation for it. The reason for payment of Rs. 8,000 by 22nd August, 1....
X X X X Extracts X X X X
X X X X Extracts X X X X
....and the price was due only to her, but that the consideration had to be paid to them, thereby empowering even the 2nd defendant to receive it on behalf of the 1st defendant. The other circumstances also probabilise this inference. Defendant 1 was away at Nizamabad, and the 1st defendant and the 2nd defendant were admittedly on cordial terms. So far as D.W. 2 is concerned, the 1st defendant admitted that she had complete faith and confidence in her father-in-law, and that she did not even participate in the negotiations for the sale, and she left the whole matter in his hands. In fact, it is he that engaged the Counsel, and prepared the written statement. We cannot, therefore, for a moment, believe that the 2nd defendant and D.W. 2 did not have the authority to receive Rs. 2,000 on 6th June, 1958, or the balance of consideration. The sum of Rs. 10,000 was received by D. 2 with the consent and acquiescence of D.W. 2 who had authority to represent her in the sale transaction even on her own admission. The failure of the 1st defendant and her husband to issue a notice to the plaintiff, rescinding the contract, or demanding D.W. 2 to do so because of plaintiff's default in paying Rs....
X X X X Extracts X X X X
X X X X Extracts X X X X
....uld pay Rs. 2,000 and pay the balance within 2 1/2 months as he could not secure the full amount of Rs. 10,000. The payment of Rs. 8,000 he deposed was thus intended to be the essence of the contract. He further deposed that he took objection to the recital in Exhibit A-1 that the land was intended to be purchased at Moparru, but that he was satisfied because that recital was omitted in Exhibit B-3. He stated that he and the plaintiff went to Nizamabad, but not P.W. 3, and that the plaintiff paid Rs. 2,000 directly to the 1st defendant there. He denied the suggestion that the plaintiff tendered Rs. 8,000, within the stipulated time, but that he asked him to keep it and pay the same with interest when called upon by D.W. 2. He corroborated D-1 as regards his going to Nizamabad with the letter, Exhibit B-2, and her insisting on the contract being cancelled, and also his sending D.W. 3. He also deposed that after receiving Exhibit B-1 from the plaintiff, he wrote letters to the plaintiff, but he did not reply. Till the payment of Rs. 10,000 was made the witness stated, the plaintiff was not to be seen. He stated that neither he nor D-2 had authority to receive Rs. 10,000 on behalf of ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....t the signature of D-1 as well as Exhibit D-3 were completed at Tenali. The witness admitted that he did not give a reply to Exhibit B-2, which is most unnatural, if time for payment of Rs. 8,000 was the essence of the contract. He was not aware if there was any correspondence between D-1 and her husband on the one hand and the plaintiff on the other. He admitted he did not issue any registered notice to the plaintiff, cancelling the contracts instructed by D-1 and her husband in the scope of peacefully settling the matter, and he did not send it even after he was asked to do by his son in his letter, Exhibit B-4. Not did he send a reply to his son to Exhibit B-4. He then made the amazing statement that there was no written correspondence at all between himself and his son after Exhibit B-4, that is, for nearly 1 1/2 years, obviously to explain away the failure of D-1 to cancel the contract. Contradicting himself he stated that he wrote a letter fib, the plaintiff to receive the refund of Rs. 2,000 and deliver the land to him, but had not stated when it was written, nor did he file a copy of that letter. Apart from its being untrue, it is inconsistent with the evidence of D.W. 1 th....
X X X X Extracts X X X X
X X X X Extracts X X X X
....d that they said that they were cancelling the contract and refunding to the plaintiff the money paid by him as advance, and that they asked him to intimate the same to D.W. 2, and that they would send a letter to him. The evidence of this witness is at variances with that of D.Ws. 1 and 2. Even D.W. 2 had not stated that he had sent several letters, but said that he sent only one letter in reply to Exhibit B-1. D-1 only stated that D.W. 2 should cancel the contract, but not that she herself was cancelling the contract and refunding the advance. In fact, they never wrote any such letter, nor refunded the amount. D.W. 3 also deposed that he was sent by D-2 after the plaintiff's telegraphic notice, to inform her about the payment of Rs. 10,000 and that she expressed her dissatisfaction as to why it was received by D-2 when he was not authorised to do so, and that he communicated it to D. 2. 36. In his cross-examination he stated that he was deputed on both the occasions because he was free, evidently meaning that he could spare time. He stated that D.W. 2 did not give him any letter addressed to D-1, but simply asked him to enquire D-1 as to what he should do, which is very ar....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e in his house for the last three years and three months. He would have it thinking that the plaintiff would obtain the consent of the 1st defendant in a short time, he passed the receipt, Exhibit A-2, in the usual course without mentioning the condition of the responsibility agreed upon by the plaintiff. He did not write a letter to D-1 intimating her about the payment of Rs. 10,000 because the plaintiff took the responsibility to obtain her consent. He had' not stated even in his reply notice, Exhibit A-10, that Rs. 10,000 was received as conditional deposit. He admitted that he did not refund the sum of Rs. 10,000 to the plaintiff, as he filed the suit immediately thereafter, nor refunded the money subsequently, nor deposited it into Court. He admitted that he could not give any reason why he did not inform D-13 about the receipt of Rs. 10,000 before receiving the notice from the plaintiff. He denied having said that the amount of Rs. 10,000 should be paid to him, so that property could be purchased with that money, and the same be given as security. He denied the suggestion that on account of alleged disputes between himself and D-1 regarding that money, the sale was not co....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ter D-2 executed, and that D.W. 2 arranged the sale in his favour. Exhibit A-1 was written in the fuel depot of his nephew at Tenali, and it was attested by D.W. 2 and his brother-in-law P.W. 3. D-1 was not present at the time of execution of Exhibit A-1, and he saw her for the first time only in Court. Lakshmayya (P.W. 3) and Rangayya (D.W. 2) went to Nizamabad and after obtaining the signature of D-1, gave it to him. According to the agreement, he (P.W. 1) had to pay Rs. 8,000 by 22nd August, 1958 and the balance of Rs. 20,000 within three years thereafter with interest at 5 per cent. There was no term in the contract that the money should be paid only to D-1. According to it the amount could be paid to either D-2 or D.W. 2. When the witness (P.W. 1) tendered Rs. 8,000 to D-1 and D.W. 2 within two months and five days of the contract, they said that after the bargain for land was settled, they would send for him (the plaintiff) and the money could then be paid. He was not informed by any one that D-1 had proposed to purchase land in Nizamabad. In January, 1960, P.W. 2 informed his brother-in-law (P.W. 3) that D-2 and D.W. 2 required money. He then brought Rs. 10,000 and paid to t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ntract, is consistent with the recitals in Exhibits A-1 and the other evidence already considered. But we are unable to accept the evidence of this witness and P.W. 3 that he tendered Rs. 8,000 on 10th August, 1958 for several reasons. The telegraphic notice itself does not mention that fact. There was no such averment even in the plaint. Further, it is also inconsistent with Exhibit B-1 that he was not able to raise the money on 1st February, 1959. This appears to be an attempt by the plaintiff to support his claim even in the event of its being found that time was of the essence of the contract. But we are unable to accept that evidence, as P.Ws. 1 and 3 would have taken something in writing to evidence that tender. Likewise, the testimony of this witness and P.W. 2 that the land was measured in 1959 cannot be believed for the main reason that the case put forward in the plaint was that the land was measured in May, 1961. Our disbelieving his evidence on these two points does not detract from our conclusion that time was not intended to be the essence of the contract, or that the contract was not avoided on account of the default in payment of Rs. 8,000. 44. The scribe, G. Sre....
X X X X Extracts X X X X
X X X X Extracts X X X X
....he execution of Exhibit A-1, he was affected by paralysis, and his eye-sight was also affected. He attested Exhibit A-1 and B-3 and corroborated the evidence of the plaintiff and P.W. 2 with regard to their execution. He was present when the bargain was struck. Rangayya settled the transaction. D-2 was not present at the time of the bargain, or when the contract was written. The plaintiff paid Rs. 2,000 to D-2 as earnest money when Exhibit A-1 was written. Rangayya did not raise any objection to the recital in Exhibit A-1 that land was intended to be purchased at Moparru. He stated that the time for payment of Rs. 8,000 was not intended to be essence of the contract. He swore that he and D.W. 2 went to Nizamabad and obtained the signature of D-1 on 7th June, 1958 that the plaintiff remained in Tenali till he returned from Nizamabad, and that he handed over Exhibit A-1 to the plaintiff after obtaining her signature in it. He deposed that in January, 1960, Rangayya came to his fuel depot and asked for money, when he sent word to the plaintiff through Ramabhadrayya. The plaintiff then brought Rs. 10,000 and paid the amount to D-2 and obtained the receipt, Exhibit A-2 which was execute....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ermitted to urge the point. That view is opposed to law as already stated. Nor can we agree that the letter, Exhibit B-1 has the effect of cancelling the contract, or communicating the rescission to the plaintiff, or that the receipt of money by the 2nd defendant on 18th January, 1960 had not got the effect of condoning the delay in payment of Rs. 8,000. 50. For the foregoing reasons, differing from the trial Court, we hold that time for payment of Rs. 8,000 was not of the essence of the contract. Even though the plaintiff committed a breach in not paying the sum of Rs. 8,000, within the stipulated time, he was not disentitled to claim specific performance as not only was the contract not avoided, but the payment of Rs. 10,000 long afterwards was accepted by defendant 2 and D.W. 2 under the authority of the 1st defendant. Even otherwise it was ratified by defendant 1 and is binding on her, and it amounts to a waiver of her right to rescind the contract. We further hold that neither before nor after the receipt of Rs. 10,000 was the contract rescinded by the 1st defendant or by any one on her behalf. 51. We shall now consider points 4 and 5. 52. It is well settled that in a....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ey. Subba Rao, C.J., (as he then was) and Chandra Reddy, J. (as he then was) held that such a plea could be raised in appeal, and that the plaintiff could prove that he could have raised the said amount at the relevant time. On the other hand, Umamaheswaram, J., agreeing with the trial Court, held that since the plaintiff had made a clear, categorical and specific case that he had cash ready, it was not open to him to give up that case and to contend in the alternative that even if he had not got the cash ready with him, he could have raised that amount. Gajendragadkar, J. (as he then was) speaking on behalf of the Supreme Court, held that the view taken by Umamaheswaram, J., was correct, and that the trial Court was not bound to enquire whether respondent No. 1 could have raised the said amount. It was held that as the plea made by the plaintiff and the evidence led on his behalf unmistakably indicated the case that cash was ready at all material times, it was not open to him to take the alternative contention. It was also held that if the plaintiff had pleaded that he would have been able to raise the necessary amount, the appellant would have had an opportunity to meet that case....
X X X X Extracts X X X X
X X X X Extracts X X X X
....equired capacity to raise the balance of money at the relevant time and that allegation was traversed, and it has therefore to be proved by the plaintiff, even in the absence of an issue. We shall now examine the evidence adduced on behalf of the plaintiff. 57. In his chief-examination, the plaintiff denied that he was unable to raise the sum of Rs. 8,000 within the specified time. He deposed that he took up forest contracts from 1944 in Mahaboobabad and Kothagudem. The contracts of coups in forest area taken by him ranged between Rs. 19,000 and one lakh. In 1963 when he was giving evidence he took a contract for Rs. 95,000. He owned 10 acres of land in Chenaravur and Davaluru in Guntur District, out of which 6 acres were purchased by him in 1950, for Rs. 15,000 and the remaining 4 acres were his ancestral lands. He also owned a building and site in Tenali, worth Rs. 65,000. He constructed the building during 1951-54. He also constructed a building at a cost of Rs. 30,000 at Mahaboobabad in 1962. He further stated that in May or June, 1961, Rangayya (D.W. 2) and D-2, who were acting on behalf of D-1, sent word that the sale-deed would be executed, and that he might come. The pla....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e purpose of his business, and not for the payment of sale consideration. He sent word to D-2 and D.W. 2 after making the deposit and purchasing the stamps. It may be noted that the stamps were purchased on 24th May, 1961, and on that day the entire balance of sale price was in the bank. The plaintiff would have it that D-2 and D.W. 2 came along with his nephew, Gopalakrishnayya, and D-2 went to Nizamabad and brought D-1 and said that within four days she would come and execute the sale deed, but on account of differences between them, she did not execute the sale-deed, that those differences he said had arisen with respect to the money, evidently meaning Rs. 10,000. He stayed at Tenali for one week at that time. As he was busy with other work, he got the stamps purchased by his nephew, Ramabhadrayya, with the money realised by sale of his paddy. He denied that Ramabhadrayya purchased the stamps for his own use. He admitted that there were six partners in the firm which took forest contracts, and that he had 3 annas' share in it. Exhibit B-1 itself shows that prior to 1st February, 1959 he had deposited Rs. 60,000 lumpsum, and that that year again he deposited Rs. 80,000. Nothi....
X X X X Extracts X X X X
X X X X Extracts X X X X
....n May, 1961, and that he did not remember whether defendant 1 came to Moparru in May, 1961, that he had no knowledge of the plaintiff purchasing the stamps or depositing the amount in May, 1961, in the Bank, and that he did not go to Nizamabad and bring D-1 to Tenali. This evidence of the witness is a vain attempt to support their case. He was giving evidence in 1963, and there should not have been any difficulty for him to remember whether or not he was in Guntur District in his village or Tenali in May, 1961. As already seen, there is unimpeachable evidence that the plaintiff purchased stamps of the value of Rs. 2,400 and also kept in Bank Rs. 21,500 ready. The plaintiff's evidence is consistent with the documentary evidence, viz., stamp papers and the bank deposit receipts and the pass book. We also accept his testimony that the 1st defendant also came from Nizamabad for the purpose, but that she declined to execute the sale-deed because of differences with defendant 2 referred to above. We find that not only did the plaintiff keep cash of Rs. 21,500 ready from 24th May, 1961 till 1st July, 1961, when evidently the first defendant refused to execute the sale-deed, but even o....
X X X X Extracts X X X X
X X X X Extracts X X X X
....notices were issued to both the defendants, the suit was instituted against both, and the plaintiff prayed for a decree against both of them in the trial Court as well as in appeal, and therefore, the plaintiff cannot be permitted to exercise the option at this stage. 64. Section 16 of the Specific Relief Act, 1877, which is reproduced in identical terms as section 12(4) of the Specific Relief Act, 1960, is in the following terms:-- "When a part of a contract which, taken by itself, can and ought to be specifically performed, stands on a separate and independent footing from another part of the same contract which cannot or ought not to be specifically performed the Court may direct specific performance of the former part." If a contract consists of several parts which are separate from and independent of one another, and some of which cannot and ought not to be performed, such part or parts as can and ought to be performed may alone be specifically enforced. Such a contract, though nominally, is actually divisible, and when the Court enforces a part of the contract, it is really enforcing the entire and complete contract. Of course, the question whether a contract is divi....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ty, and that the property of D-2 could be furnished as security. She also made the significant statement that she did not ask D-2 to give his property as security. The evidence of D.W. 2 is that there was no talk as to which property and what extent of the property of D-2 was to be furnished as security. In cross-examination he stated that the plaintiff asked for security, as, according to him, D-1's title to suit land was defective. The scribe had with him the title deeds for the suit land, as he happened to write the contract of sale in respect of a portion of that land. He seemed to have informed the plaintiff that D-1's title was questionable, and the plaintiff asked for security two days before the contract. The witness said that he would get the security furnished by D-2. This evidence makes it manifest that the question of security did not crop up at all till after D.W. 2 returned from Nizamabad after fixing the price of Rs. 3,000 per acre with his daughter-in-law, and on his own responsibility he agreed to prevail upon D-2 to give security for that amount. That is also perhaps the reason why according to the plaintiff the 1st defendant was willing to execute the sal....