Relief of declaration without specific performance if maintainable

Can a suit for declaration be filed without seeking specific performance of agreement?

Right under agreement to sell

The appellant had no title to the suit land. All that he had claimed to possess in relation to the suit land was an agreement dated 24.04.1980 to purchase the suit land from its owner (Shri Ved Prakash Kakaria). The appellant, as mentioned above, failed to prove the agreement. In this view of the matter, the appellant had no prima facie case in his favour to file a suit nor he had even any locus to file the suit in relation to the suit land once the agreement was held not proved.

Specific performance is proper remedy

Second, the proper remedy of the appellant in this case was to file a civil suit against respondent Nos.1 to 3 to claim specific performance of the agreement in question in relation to the suit land and such suit should have been filed immediately after execution of agreement in the year 1980 or/and within three years from the date of execution. It was, however, not done. The suit was, however, filed by the appellant almost after 12 years from the date of agreement and that too it was for declaration and mandatory injunction but not for specific performance of agreement. It was, in our opinion, a misconceived suit and was, therefore, rightly dismissed.

Bar of limitation

Third, the suit was otherwise hopelessly barred by limitation because, as mentioned above, the date of agreement is 24.04.1980 whereas the suit was filed on 10.10.1992. There is nothing to show that the agreement was to be kept alive for such a long time. It is apart from the fact that the alleged agreement itself was not held proved and, therefore, no suit for claiming any relief in relation to the suit land could be filed by the appellant.

Will in favour of stranger

Even the Will was rightly held not proved by the Courts below and we are inclined to uphold the finding on this issue too. Indeed when the deceased has two sons and one daughter (respondent Nos.1-3), why should he execute a Will in appellant’s favour, who was not related to him.

[Source: Suresh Kumar  vs Anil Kakaria, decided by SC on 6 November, 2017]

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