Kerala High Court: Expressing Readiness & Willingness To Lesser Extent Of Property Disentitles For Specific Performance Decree To Entire Extent

The Kerala High Court held that if one expresses readiness and willingness only to the lesser extent of the property, he/she is not entitled for a decree of specific performance in respect of the entire extent.

The Court held thus in a Regular First Appeal in which the decree for specific performance of an agreement for sale was under challenge.

A Division Bench of Justice Sathish Ninan and Justice P. Krishna Kumar observed, “The plaint, as amended, seeks for specific performance of only the lesser extent, based on the Commissioner's Report. Even going by the averments in the plaint, the plaintiffs were apprehensive of the extent of property. They have expressed their readiness and willingness only to the lesser extent. Therefore, they are not entitled for a decree for specific performance in respect of the entire extent.”

The Bench reiterated that in a suit for specific performance, the Plaintiff has to prove his readiness and willingness from the date of agreement till the date of decree.

Senior Advocate T. Krishnanunni appeared on behalf of the Appellants/Respondents, while Advocate B.G. Bhaskar appeared on behalf of the Respondents/Plaintiffs.

Case Background

An agreement was entered into between the first Plaintiff and Defendants whereunder a property was agreed to be conveyed by the Defendants to the Plaintiff or his nominee. The period fixed for performance was six months from the date of agreement and the consideration fixed was ₹16,000/- per cent, for the extent to be ascertained on measurement. According to the Plaintiffs, as per the prior title deed, the Defendants had title for only a lesser extent of property. Alleging failure on part of the Defendants to perform the agreement, specific performance was sought for conveyance of the actual extent over which Defendants had title.

Defendants denied the allegation that they did not have title over the entire property. It was contended that the agreement was entered into with the first Plaintiff alone and that there is no privity of contract with the second Plaintiff. It was alleged that the first Plaintiff was not ready and willing to perform the agreement. The financial capacity of the first Plaintiff to proceed with the transaction was challenged. The Trial Court held that the Defendants could establish title over only 3 acres and 84.625 cents, and a decree for specific performance was granted regarding the same, directing conveyance in favour of the second Defendant. Being aggrieved, the Plaintiffs were before the High Court.

Reasoning

The High Court in the above context of the case, said, “… the Apex Court held that, though it is not necessary for the plaintiff in a suit for specific performance to have sufficient funds with him to proceed with the transaction, still, if he intends to raise the amounts from other sources, it is a matter to be specifically pleaded in the plaint.”

The Court noted that in this case, not only that there is no averment that the first Plaintiff intended to raise funds from the second Plaintiff, on the contrary, the specific plea is that the first Plaintiff was ready and willing to perform the agreement.

“We find that the first plaintiff has failed to prove his readiness and willingness to perform Ext.A1 agreement. Having failed to prove his readiness and willingness, the first plaintiff is not entitled for a decree of specific performance”, it added.

The Court was of the view that a decree for specific performance could not have been passed excluding such extent of property.

“The inability to perform could be due to defective title or lack of title. But, on the facts noticed supra, it cannot be held that the defendants are unable to convey the property agreed to under Ext.A1”, it remarked.

The Court observed that it cannot be concluded that prima facie there is lack of title with the Defendants over the entire extent of property.

“This is not a case where the defendants are unable to perform the whole of Ext.A1 agreement. There is no reason for any inability on their part to perform Ext.A1 in its entirety. May be the plaintiff has an apprehension that at some point of time in the future a rival claim of title might crop up regarding the extent which is not mentioned in the prior document. However, that is not a ground to find that the defendants are unable to convey the entire property mentioned under Ext.A1 agreement”, it further noted.

The Court also said that this is not a case where Section 12(2) of the Specific Relief Act, 1963 could be applied and a decree be granted confining the extent to that mentioned in the prior deed.

“That apart, granting of a decree for part of the contract under Section 12(2) is, in the discretion of the Court. As could be noticed, Section 12 employs the word “the Court may … direct … specific performance...”, giving discretion to the Court to decide whether specific performance of part need to be or is liable to be granted on the facts and circumstances of the case. On the facts obtaining in this case, as noticed above, we are clear in our minds that a decree for part performance for the lesser extent, is not to be granted”, it explained.

Conclusion

The Court said that this is not a case where the discretion under Section 20 of the Specific Relief Act (as it existed prior to the amendment of 2018, which is applicable to the case) be exercised to grant a decree for specific performance.

“On the above discussions we find that, viewed in any manner, the first plaintiff is not entitled for a decree for specific performance. The decree for specific performance is liable to be set aside and we do so”, it added.

The Court, therefore, concluded that the first Plaintiff had failed to prove the readiness and willingness to go ahead with the agreement and having been at fault, he is not entitled to claim damages.

Accordingly, the High Court allowed the Appeal, set aside the Trial Court’s Judgment and Decree, and granted a decree for realisation of ₹26 lakhs @ 12% interest to the Plaintiff.

Cause Title- T.K. Vasudevan Nair & Ors. v. T. Vrij Mohan & Ors. (Neutral Citation: 2025:KER:83970)

Appearance:

Appellants: Senior Advocate T. Krishnanunni, Advocates K.C. Kiran, Meena A., and Vinod Ravindranath.

Respondents: Advocates B.G. Bhaskar and Biju Abraham.

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