S.V.R. MUDALIAR (DEAD) BY LRS. AND ORS. versus MRS. RAJABU F. BUHARI (DEAD) BY LRS. AND ORS.

Citation: [1995] 3 S.C.R. 312 · Decided: 17-04-1995 · Supreme Court of India · Bench: K. RAMASWAMY · Disposal: Appeal(s) allowed

Judgment (excerpt)

A 
S.V.R. MUDALIAR (DEAD) BY LRS. AND ORS. 
v. 
MRS. RAJABU F. BUHARI (DEAD) BY LRS. AND ORS. 
\ . 
APRIL 17, 1995 
B 
[K. RAMASWAMY AND B.L. HANSARIA, JJ.] 
Specific Relief Act, 1963-Sections 20(2) and (3}-Specific peifonnance 
for reconveyance of property-Sale deeds-Understanding to reconvey proper-
c 
tie~ocuments executed by agents of both panies-Valid and enforceable 
contract for reconveyance-Panies ad idem-Prices having risen during pen-
dency of litigation-Assignment of interest to outsiders-Whether plaintiff can 
seek decree for specific peifonnance-Held, Yes. 
Appellant-plaintiff sold two of his properties ostensibly to Mrs. B. 
D The sale deeds were registered on 31.3.1959. The plaintiff's case was that 
before these properties had been sold there was a 'gentlemen's under-
standing' between him and Mr. B, husband of Mrs. B that in case the 
purchase amounts as per the sale deeds were repaid within three years, 
' 
the properties would be reconveyed. This understanding was put in writing 
\-
E 
subsequently under the title 'Record of fact', Ex.Pl. Plaintiff pleaded that 
though the sale deeds were in the name of Mrs. B, the real purchaser was 
,, 
Mr.Band Mrs. B was only an ostensible owner; that Ex Pl had been signed 
by one K as an agent of the couple, who were impleaded as defendants in 
the suit. Of the two properties sold, only one, styled as 'Serles Garden' was 
reconveyed in May, 1960. The suit for specific performance was filed for 
F seeking a decree for the reconveyance of the second property. 
The trial court decreed the suit, which decree came to be reversed in 
appeal by the Letters Patent Bench, which regarded the 'Record of fact', 
Ex Pl not as a genuine document mainly because the sale deed did not 
G 
contain a stipulation regarding the reconveyance of the properties sold by 
the plaintiff. Even Ex.plS, by which Selers Garden was resold, did not 
mention about the same having been done pursuant to any contract of 
reconveyance. As in support of proof of Ex. P.1, the plaintiff had examined, 
apart from himself, bis agent, the appellate court did not feel satisfied 
about there being credible evidence in this regard. When the trial began, 
\ -
H another signatory to P.1 who had played prominent part throughout 
• 
312 
S.V.R. MUDALIAR "· RAIAJlU F. llUI i..IRi 
having died, was not available for exan1t11ation. The onl)'·other signator:· A • 
was K, who could not be examined even as a court '~itness. 'l'ht> L-tttl..'r.'' 
~ > 
Patent Bench set aside t.he decree. Hence this appeal. 
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The respondent, apart from mentioning about silence of sale deeds 
relating to any agreement of reconveyance, urged that the agreement had 
created no legal obligation and as such was not enforceable as the evidence 
adduced by the plaintiff would itself show that Pl bad not seen the light 
of the day; that this document was described by PWl in bis evidence as a 
'letter' and queries were raised as to why Pl was not signed by Mr. B and 
why the plaintiff himself did not sign the same; that such an agreement, 
even if enforceable, could be so done only against the executant of the 
original contract;that the remedy of specific performance being discretion· 
ary, the same might not be granted at this length of time, ntore su wheu 
the appellant had assigned their interest to some outsiders. 
B 
c 
As to why in sale deeds no mention was made. about P.1, it was D 
explained by the plaintiff in his evidence stating that his legal advisor R 
had advised accordingly. R was a legal advisor both lo the plaintiff and 
/ 
the respondent. The appellants referring to sub-sec. (I) of Sec.20 of the 
Specific Relief Act contended that the relief of specific perforrnance was 
said to be discretionary only in the sense that the court may not act 
arbitrarily and nothing beyond this and while exercising the discretion, 
E 
judicial conscience and judicial statesmanship alone are the guiding fac-
tors. Defending the delay in the disposal of the case and the rise in prices 
during interregnum, he urged that the delay not having been occasioned 
by any act of the plaintiff, he should not be punished for the same on the 
principle . of 'actus cun·ae nenzinern gravabit'-an act of the court shall F 
prejudice no man. As regards the rise in prices, the submission was that 
it should not weigh with the court in refusing the relief if otherwise due. 
Regarding the plaintill's successor in interest having assigned the right to 
third parties

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