RAJ KISHORE (DEAD) BY LRS. versus PREM SINGH & ORS.

Citation: [2010] 14 S.C.R. 1019 · Decided: 10-12-2010 · Supreme Court of India · Bench: MARKANDEY KATJU · Disposal: Dismissed

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Judgment (excerpt)

[2010] 14 (ADDL.) S.C.R. 1019 
RAJ KISHORE (DEAD) BY LRS. 
v. 
PREM SINGH & ORS. 
(Civil Appeal No. 7471 of 2003) 
DECEMBER 10, 2010 
[MARKANDEY KAT JU AND T.S. THAKUR, JJ.] 
Transfer of Property Act, 1882: 
A 
B 
s.58 -
Mortgage by conditional sale -
Held: For c 
transaction to constitute mortgage by conditional sale, it is 
necessary that the condition is embodied in the document that 
purports to effect the sale - Mortgage. 
s. 58(e) -
Mortgage -
Essential conditions for a 
transaction to constitute an English mortgage - Held: What 
D 
is important in terms of the requirement of s.58(e) is not that 
. the purchaser has agreed or bound him:;elf to transfer the 
property by a particular date but that the seller has bound 
himself to pay the amount by a certain date - In the instant 
case, sale-deed did not contain any stipulation binding the 
E 
sef/er to pay an amount on a certain date - Agreement for 
re-conveyance was signed by purchaser only- Seller was not 
a signatory to the said agreement -
The seller cannot, 
therefore, be said to have bound himself to re-pay the 
- mortgage money on future date - The transaction was, thus, 
F 
not in the nature of English Mortgage. 
Contract: Agreement for re-conveyance - Held: In a case 
where the parties enter into a transaction of sale and also 
execute an agreement for re-conveyance of the property sold, 
time stipulated for re-conveyance is the essence of the 
G 
contract - In the instant case, the plaintiff-seller had failed to 
prove that he had tendered the stipulated amount to the 
purchaser within the date stipulated in the agreement for re-
1019 
H 
1020 SUPREME COURT REPORTS [2010] 14 (ADDL.) S.C.R. 
A conveyance - Any claim for re-conveyance made in default 
of the said stipulation must fail for the right of re-conveyance 
cannot be saved from forfeiture in the case of default. 
Specific Relief Act, 1963: s.16(c) - Specific performance 
- Held: In a suit for specific performance, it is absolutely 
B necessary for the plaintiff to assert that he/she was always 
·ready and willing to perform the essential terms of the contract 
sought to be enforced against the defendant- s.16(c) makes 
that requirement mandatory - In the instant case, there was 
no averment as to the readiness and willingness of the 
C plaintiff to perform his part of the contract - In the absence of 
such an averment, amendment of the plaint to incorporate a 
prayer for specific performance of the agreement for re-
conveyance would not have advanced the case of the plaintiff. 
0 
The plaintiff had executed a sale deed in favour of 
defendant no.1 on 6th, July 1974 in respect of the suit 
land for Rs.6000/-. He filed a suit for declaration that the 
sale deed executed by him was void and ineffective and 
that he continued to be in cultivating possession of the 
land as owner thereof. The plaintiff's case was that the 
E transfer of the suit land was only by way of security for 
the repayment of Rs. 6000/- which was taken only as a 
loan and an agreement was executed between the parties 
on 6th July, 1974 itself that the return of the loan amount 
by 6th July, 1981 would result in transfer back of the suit 
F land. The trial court dismissed the suit. The plaintiff filed 
appeal before the first appellate court. During the 
pendency of the appeal, the plaintiff filed an application 
for permission to amend the plaint to add an alternative 
prayer to the effect that in case the sale-deed in favour 
G of defendant no.1 was held to be validly executed, the 
plaintiff may be given a decree for specific performance 
by execution of a sale-deed for the transfer of the suit 
property in his favour. The first appellate court heard the 
appeal and the application for amendment together and 
H dismissed both. 
RAJ KISHORE (DEAD) BY LRS. v. PREM SINGH & 1021 
ORS. 
The High Court held that the dism.issal of the 
A 
application for amendment by the first appellate court was 
not correct as the proposed amendment would not have 
made any material difference. On merits, the High Court 
took the view that whenever a sale-deed is accompanied 
by a document for re-conveyance of the property sold, 
B 
the transaction between the parties would amount to a 
mortgage, subject to the condition that the mortgagee 
must get the property re-conveyed within the period 
stipulated for that purpose. The High Court relied upon 
revenue records for the year 1980-81 and on that basis c 
held that the finding of the courts below

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