AZHAR SULTANA versus B. RAJAMANI & ORS.

Citation: [2009] 2 S.C.R. 537 · Decided: 17-02-2009 · Supreme Court of India · Bench: S.B. SINHA · Disposal: Disposed off

Cited by 4 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

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J 
[2009] 2 S.C.R. 537 
AZHAR SULTANA 
V. 
B. RAJAMANI & ORS. 
Civil Appeal No.1077 of 2009 
FEBRUARY 17, 2009 
(S.B. SINHA AND CYRIAC JOSEPH, JJ.) 
Specific Relief Act, 1963: 
A 
B 
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ss.16(c), 19(b) - Subsequent purchaser of land - Plea 
for Specific Performance of the contract- Knowledge of earlier c 
sale - Readiness and willingness to perform contract - Failure ~ 
to establish - Further, grant of decree of specific performance 
of contract is discretionary - Conduct of both parties not good 
- Interest of justice would be subserved if the Court refuses to 
exercise discretionary jurisdiction and defendant directed to 0 
.... 
pay Rs. 60, 0001- to plaintiff which would include advance paid 
>-. 
J., 
by her - Transfer of Property Act, 1882. 
In this appeal filed against the judgment of the High 
Court, the subsequent purchasers arrayed at a later stage 
in a suit for Specific Performance of contract, questioned E 
the said judgment of the High Court. 
Disposing of the appeal, the Court 
HELD: 1. In view of the fact that approval was 
required to be obtained from the competent authority, the F 
plaintiff could not have proceeded on the assumption that 
the suit could be filed within a period of three years from 
the date of refusal on the part of the original defendant to 
execute the said deed of sale in terms of the agreement. 
[Para 14] [548-8, C] 
G 
2. Defendant Nos.5 and 6 were in possession of the 
properties. The deed of sale was a registered one. Plaintiff, 
therefore, must be deemed to have notice thereof in terms 
537 
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538 
SUPREME COURT REPORTS 
[2009] 2 S.C.R. 
'; 
A 
of Section 3 of the Transfer of Property Act. She, however, 
neither in her notice nor in her plaint raised any question 
..-~ 
with regard to the bona fide or otherwise of the transaction 
of sale entered into by and between Shri Khanna and the 
respondent Nos.5 and 6. Prior to execution of the said 
B deed of sale dated 30.10.1981, the suit filed by Khanna 
against Bahadur Hussain was dismissed by the appellate 
court by a judgment and decree dated 30.11.1978. There 
does not appear to be any reason as to why the plaintiff 
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cannot be said to have been not aware thereof. It was, 
.. 
c therefore, expected that not only the subsequent 
purchasers but also Bahadur Hussain be impleaded as 
parties in the suit. It is of some significance to notice that 
replication to the said written statement was filed wherefor 
no leave was obtain·ed. [Para 15] [ 548-0, E, F] 
D 
3. Indisputably again, although the written statem~nt 
was filed by Shri Khanna on 30.8.1983, defendant Nos.5 
i-· 
and 6 were impleaded as parties only in the year 1987. It· 
;.. 
is f~r the first time in the replication, the plaintiff alleged 
tha.t·there had been a collusion by and between Khanna 
E and Bahadur Hussain. Bahadur Hussain, however, was. 
not imp leaded as a party. Replication was filed in 1991. · 
Such a contention has been raised only in 1991 which 
was impermissible in law. [Para 16] [ 548-G, H; 549-A] 
"' 
4. It may be true that the name of the purchaser was 
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not' disclosed but then it was open to the plaintiff to ask -
for other and better particulars of the said stateme.nts~ why 
she had to wait for a period of more than thr~e years for. 
impleading the subsequent purchasers as parties has not 
been explained. Even an application for injunction wa~. 
G filed only in September 1985. According to her husband, 
she came to learn about the sale of property in the name 
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of defendant No.5 only on 29.9.1986. Why an inquiry was 
... 
not made in the Registration Office although the~, deed of 
sale was a registered one again defies anybody's 
H comprehension. Readiness and willingness on the part 
AZHAR SULTANA V. B. RAJAMANI & ORS. 
539 
,... ..., 
of the plaintiff, therefore, is required to be considered from A 
the aforementioned backdrop of events. [Para 17] [549-8, C] 
5. It was not necessary that the entire amount of 
consideration should be kept ready and the plaintiff must 
file proof in respect thereof. It may also be correct to B 
contend that only because the plaintiff who is a Muslim 
f 
lady, did not examine herself and got examined on her 
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behalf, her husband, the same by itself would lead to a 
conclusion that she was not ready and willing to perform 
her part of contract. [Para 20] [551-C] 
c 
5.2 If the plaintiff has failed to establish that she had 
all along been ready and willing to perform her part of 
contract, it wo

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