C.S. VENKATESH versus MURTHY (D) BY LRS. & ORS.

Citation: [2020] 2 S.C.R. 676 · Decided: 07-02-2020 · Supreme Court of India · Bench: S. ABDUL NAZEER · Disposal: Appeal(s) allowed

Cited by 5 judgment(s) · cites 2 · see the full citation network in Lexace

Judgment (excerpt)

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SUPREME COURT REPORTS
[2020] 2 S.C.R.
 C.S. VENKATESH
v.
A.S.C. MURTHY (D) BY LRS. & ORS.
(Civil Appeal No. 8425 of 2009)
FEBRUARY 07, 2020
[S. ABDUL NAZEER AND DEEPAK GUPTA, JJ.]
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
 [2020] 2 S.C.R. 676
676
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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 

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