LexOUSEPH VARGHESE versus JOSEPH ALEY & ORS.
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A 8 c D E F G .. \ ·.::~ , H ;,, 921 ' OUSEPH VARGHESE v. JOSEPH ALEY & ORS. August 18, 1969 [J<. .S. HEGDE AND A. N. RAY, JJ.] Specific Relief Act 1877 (! of 1877), s. 12-Suit for specific per/or· mance of oral agral'/'Jtnt to re..convey property sold through sale-deed- ",I Burden of proof on. plflintiff is heavy-Court will rarely grant specific per-. .· formance of contrtICI <Vz the basis of oral evidence only-Offer by de/en- . dant in written statetnent to sell part of property to plaintiff at certain price-Offer not ~eptdd by plaintiff-Court can not pass decr_ee in favour of plaintiff on the basis of such. offer-Costs where both parties have withheld facts from Court. ' - i / The plaintiff as' ozl.iinal owner of the suit properties sold the same to the !st defendant 'lllho ,was husband of the 2nd defendant. According to the plaintiff apart from the written sale-deed there was an oral agreement between him and the !st defendant whereunder the latter agrees to re- convey the properties sold at the same price whenever the plaintiff called upon him to do Sd~ The suit was filed for specific performance of the said oral agreement The !st defendant died even before he filed his written statement. Betilre his death. he had gifted the suit properties to his wife, the 2rid qefe@ant. In her vritten statement the 2nd defendant denied the agreement pleaded in the p. \nt but stated that just before his death her husband \lad agreed to sell to plaintiff item No. I of the suit property less one ac;e of paddy field for a sum of Rs. 11,500 but due to his illness the sale rould not be effected. She reiterated the said offer in her written statement but the plaintiff did not acoept it and the suit pro- ceeded on the basj$ of. the agreement pleaded in the plaint. The trial court decreed the lillit as prayed for. In appeal the High Court did not accept the agreement pleaded by the plaintiff but still granted a decree directing the de'fendant to execute a sale deed in favour of the plaintiff in respect of item No. I of the plaint schedule properties less one acre of paddy field for a sum of Rs. 11,500. Both the parties appealed to this Court. HELD : (i) '!he burden of proving the oral agreement was on the plaintiff. The sale deed on the face of it evidenced an outright sale. The stipulation in it that the _purchaser would not mortgage or assign the pro-- perties to anyone else dming the vendor's lifetime went against the plain.- tiff's case ina'Smuch as it-, only gave the vendor a right to pre-empt. There was no satis'factory e.x~ation why such an important thing as the agree~ ment to re-convey was made orally and not reduced to writing. [923 G, 924 B! It appeared likO!y in the present case that neither side had come for- ward with the true version. But befdre a court can grant a decree for specific performance, the contract pleaded must be a specific one and the same must be established by convincing evidence. Rarely a decree for specific performanceiis granted on the basis of an agreement support· ed solely by ore, evidence. [925 D·El On the evidence adduced by him tho plaintiff bad failed to prove the agreement pleaded in the plaint. [925 FJ (ii) The High Ciqurt.was wrong in passing the decree in respect of plaint item No. 1 on th~ basis df the admission of the 2nd defendant in her written statement. The plaintiff did not at any stage accept the 922 SUPREME COURT REPORTS ( 1970] 1 S.C.R. agreement pleaded by the defendant as true. The agreement pleaded by the plaintiff in his plaint and that pleaded by the defendant in her written statement v.:crc tv.·o totally different agrecmenL~. The plaintiff did not plead at any stage that he was ready and v.·illing to perfo:m the agr~e· ment pleaded in the written statement of defendant. A sull for specific pc-rformancc has to conform to the requirements prcscrihed in Forms 47 and 48 of the 1st ~hedule in the Civil Procedure Code. Be'forc a decree for specific performance can be given the p~aintiff has to plead ar,d satis~y the court about his willingness to perform hts part of the contract. [925 G· 926 Bl Pt. Pre,n Raj v. The D.L.F. Housing and Construction (P} Ltd. &. Anr., [19681 3 S.C.R. 648, applied. Srii1ivas Rani Kr"nar v. Mahabir Prasad &: Ors., [1951} S.C.R. 277, distinguished. (iii) Since the parties had not laid the true version before the court and the defendant had rc.'iiled from the o
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