H.R.Subramanya Shastry and others vs K. Mohan Kumar. Regular First Appeal 666/2013 decided on 6 January 2021.
Judgment Link: http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/358136/1/RFA666-13-06-01-2021.pdf
Relevant paragraphs: 31. In view of the oral agreement set up by the plaintiff in respect of the immovable property, heavy burden is on him to discharge the same when there was an oral contract that too when the defendants have filed a written statement denying the oral agreement.
33. The Hon’ble Supreme Court while considering the provisions of Section 54 of the Transfer of Property Act with regard to specific performance of oral agreement of sale sought in the case of Brij Mohan and Others –vs- Sugra Begum and Others reported in (1990) 4 SCC 147 at paragraphs 20 and 22 has held as under: “20. We have given our careful consideration to the arguments advanced by Learned Counsel for the parties and have thoroughly perused the record. We agree with the contention of the Learned counsel for the appellants to the extent that there is no requirement of law that an agreement or contract of sale of immovable property should only be in writing. However, in a case where the plaintiffs come forward to seek a decree for specific performance of contract of sale of immovable property on the basis of an oral agreement alone, heavy burden lies on the plaintiffs to prove that there was consensus ad- idem between the parties for a concluded oral agreement for sale of immovable property. Whether there was such a concluded oral contract or not would be a question of fact to be determined in the facts and circumstances of each individual case. It has to be established by the plaintiffs that vital and fundamental terms for sale of immovable property were concluded between the parties orally and a written agreement if any to be executed subsequently would only be a formal agreement incorporating such terms which had already been settled and concluded in the oral agreement.
35. When the plaintiff has set up an oral agreement and has not mentioned any terms and conditions in the plaint, it is clear that there was no contract between the parties and the decree for specific performance could not have been granted by the trial Court.
37. It is well settled that where the plaintiff comes forward to seek a decree for specific performance of contract of sale of immovable property on the basis of an oral agreement alone, “heavy burden lies on the plaintiff” to prove that there was consensus ad idem between the parties for a concluded oral agreement for sale of immoveable property. Whether there was such a concluded oral contract or not would be a question of fact to be determined in the facts and circumstances of each individual case. It has to be established by the plaintiff that vital and fundamental terms for sale of immovable property were concluded between the parties and in terms of the provisions of Section 20 of the Specific Relief Act where discretion for grant of specific performance is discretionary, but it has to be exercised in accordance with ‘sound and reasonable judicial principles’. To grant specific performance, however, the Court is not bound to grant such a relief merely because it is lawful to do so. The Court should meticulously consider all facts and circumstances of each case and to see that it is not used as an instrument of oppression to have an unfair advantage not only to the plaintiff but also to the defendant. The relief of specific performance is discretionary but not arbitrary; hence, discretion must be exercised in accordance with sound and reasonably judicial principles. The said principle is not at all considered by the trial Court while passing the impugned judgment and decree which cannot be sustained.
Appeal allowed.
Compiled by S. Basavaraj, Advocate, Daksha Legal.
Daksha Legal 