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Brij Lal (Deceased) Vs. Boota Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtPunjab and Haryana High Court
Decided On
Judge
Reported in(2010)157PLR463
AppellantBrij Lal (Deceased)
RespondentBoota Singh and ors.
Cases ReferredM.L. Devinder Singh and Ors. v. Syed Khaja
Excerpt:
- .....of brij lal and ram rakhi plaintiffs for rs. 85,000/-. as agreed upon between the parties, the sale deed was to be executed and registered by 31.12.1987. the expenses of the stamp and registration were to be borne by the plaintiffs. a sum of rs. 78,000/- (rs.39,000/-by each plaintiff) was paid to the above mentioned intending vendor as earnest money which was to be adjusted in the sale consideration of the execution and registration of the sale deed. the plaintiffs had always been ready and willing and still ready and willing to perform their part of the said agreement and had been requesting the defendant to receive the balance sale consideration and to execute and register the sale deed in their favour. on one pretext or the other, the defendant went on putting off the plaintiffs......
Judgment:

Harbans Lal, J.

1. This appeal is directed against the judgment/decree dated 14.9.2004 passed by the court of learned Additional District Judge, Ludhiana whereby he dismissed the appeal preferred by Bagga Singh deceased through his legal representatives (a) Boota Singh (b) Manjit Singh (c) Darshan Singh (d) Pritam Singh and (e) Kuldeep Singh sons of Bagga Singh against the judgment/decree dated 17.10.2003 rendered by the court of learned Civil Judge (Junior Division), Ludhiana whereby he partly decreed the suit with costs holding that the plaintiffs are entitled to refund of Rs. 78,000/- from the defendants.

2. The facts which led to the filing of the suit are that Bagga Singh defendant entered into an agreement dated 12.6.1987 to sell the land measuring 14 Bighas 18 Biswas bearing khasra No. 65, 77/2, 78/2 and 79/2 as delineated in the plaint in favour of Brij Lal and Ram Rakhi plaintiffs for Rs. 85,000/-. As agreed upon between the parties, the sale deed was to be executed and registered by 31.12.1987. The expenses of the stamp and registration were to be borne by the plaintiffs. A sum of Rs. 78,000/- (Rs.39,000/-by each plaintiff) was paid to the above mentioned intending vendor as earnest money which was to be adjusted in the sale consideration of the execution and registration of the sale deed. The plaintiffs had always been ready and willing and still ready and willing to perform their part of the said agreement and had been requesting the defendant to receive the balance sale consideration and to execute and register the sale deed in their favour. On one pretext or the other, the defendant went on putting off the plaintiffs. In the month of December, 1988, the defendant received a sum of Rs. 8,000/- from the plaintiffs on account of stamp and registration expenses and to play fraud upon the plaintiffs got scribed a sale deed contrary to the terms and conditions embodied in the above mentioned agreement. When the plaintiffs requested him to take the balance sale consideration and get the sale deed registered in accordance with the terms and conditions of the aforesaid agreement, he left the place of deed writer. Brij Lal plaintiff on his own behalf and on behalf of his wife Ram Rakhi had been requesting the defendant to execute and register the sale deed on receipt of balance consideration and acceptance of stamp and registration but he continued procrastinating. A panchayat was convened in this regard about seven days before filing of the suit, but the defendant refused to accept the balance sale consideration as well as the expenses of the stamp and registration. On these allegations, the suit has been filed for specific performance of the agreement to sell dated 12.6.1987.

3. Having entered appearance, the defendant filed written statement inter alia pleading that the alleged sale agreement was never executed by him in favour of the plaintiffs nor earnest money of Rs. 8,000/- on account of stamp and registration expenses was received by him. As alleged the said agreement is false and forged document and that in fact he had entered into an agreement for sale of land in question with Mangat Ram son of the plaintiff Brij Lal for a consideration of Rs. 60,000/- and the sale deed to that effect has been executed on 5.4.1988 and registered on 19.4.1988 in favour of Ravi Kumar son of Megh Raj, the grand son of the plaintiffs.

4. The following issues were framed by the learned trial Court.

i. Whether the defendant entered into an agreement to sell dated 12.6.1987 regarding the suit land with the plaintiffs, if so, its effect? OPP

ii. Whether the suit is not maintainable? OPD

iii. Whether no cause of action accrued to the plaintiffs? OPP

iv. Whether the plaintiffs were ready and willing and are still read and willing to perform their part of the contract? OPP

iv(a) Whether the defendant had entered into the agreement to sell regarding the property in dispute with Mangat Ram son of Brij Lal and on the basis of that the sale deed was executed on 5.4.1988/19.4.1988 in favour of Ravi Kumar grand son of plaintiff, if so, its effect? OPD

Relief:

5. After hearing the learned Counsel for the parties and examining the evidence on record the learned trial Court partly decreed the suit as noticed at the outset. Feeling aggrieved therewith, the defendant Bagga Singh through his legal representatives filed civil appeal No. 7 of 21.1.2004 and the plaintiffs moved civil appeal No. 39 of 20.7.2004. Both these appeals were dismissed by the learned Additional District Judge, Ludhiana. However, the findings returned on issue No. 4 were reversed in Civil Appeal No. 39. The plaintiffs being dissatisfied with the judgment/decree dated 14.9.2004 handed down by the learned Additional District Judge have preferred this appeal.

6. The following substantial question of law arises for decision by this Court.

Whether a specific performance can be denied on the ground that the property stands sold to a third person without establishing that the third person has purchased the same property, which is subject matter of the suit for specific performance?

7. I have heard the learned Counsel for the parties, besides perusing the record with due care and circumspection.

8. The learned Counsel for the appellant vehemently urged that the learned Appellate court below has gravely erred in denying the relief of specific performance of the agreement to sell dated 12.6.1987 only on the ground that the plaintiffs'have failed to implead Ravi Kumar subsequent vendee. The Courts below have rightly held that vide the aforesaid agreement Bagga Singh defendant had agreed to sell the suit land in favour of the plaintiffs. The learned lower Appellate Court while reversing the findings of the learned trial Court on issue No. 4 has rightly held that the plaintiffs had always been ready and willing to perform their part of the contract. However, despite recording this finding, the suit has not been decreed to the extent of directing the respondent-defendant to execute the sale deed in relation to the suit land in favour of the plaintiffs. In a suit for specific performance a subsequent 'vendee is not required to be made a party as he can neither be said to be a necessary nor a proper party for the effective adjudication of the subject matter of the dispute.

9. To overcome these submissions, the learned Counsel for the respondents-defendants maintained that Ravi Kumar being a subsequent vendee ought to have been impleaded as a party to the suit. On his back, the relief of specific performance cannot be allowed. He further puts that the plaintiffs-appellants have not adduced even an iota of evidence in proof of the fact that in adherence to the recitals contained in the sale agreement Ex.P-1 they had put in their appearance before the Sub Registrar or tendered the balance amount of sale consideration on the stipulated date to get the sale deed executed and registered in their favour. Besides this, the record is also quite barren to show that they had served any notice upon the defendant calling upon him to execute and register sale deed on the. basis of the disputed sale agreement. All this goes to show that they were not ready and willing to get the sale deed executed and registered in their favour.

10. I have given a deep and thoughtful consideration to the rival contentions.

11. In re: Rameshwar Prasad (dead) by L.Rs v. Basanti Lal : (2008) 5 Supreme Court Cases 676 the Hon'ble Supreme Court has held as under:

8. There is a specific statement that the plaintiff was willing to comply with the terms of the sale agreement which were applicable and was so ready even before. One of the terms in the agreement related to payment of interest. Therefore, the conclusion of the High Court that there is no specific plea regarding readiness to pay interest is contrary to the factual scenario, in view of the categorical averment made in the plaint.

9. The provision of Section 16(c) of the Specific Relief Act, 1963 in short 'the Act' are as follows:

16. Personal bars to relief-Special performance of a contract cannot be enforced in favour of a person-

(a)-(b)

(c) who fails to aver and prove that he has performed nor has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than terms of the performance of which has been prevented or waived by the defendant.

10.

12. The basic principle behind Section 16(c) read with Explanation (ii) is that any person seeking benefit of the specific performance of contract must manifest that his conduct has been blemishless throughout entitling him to the specific relief. The provision imposes a personal bar. The court is to grant relief op the basis of the conduct of the person seeking relief. If the pleadings manifest that the conduct of the plaintiff entitles him to get the relief on perusal of the plaint he should not be denied the relief.

13. Section 16(c) of the Act mandates the plaintiff to aver in the plaint and establish as the fact by evidence alude that he has always been ready and willing to perform his part of the contract. On considering almost identical fact situation it was held by this Court in Surya Narain Upadhaya v. Ram Roop Pandey : AIR 1994 Supreme Court 105 that the plaintiff had substantiated his plea.

11. These aspects were also highlighted in Sugani v. Rameshwar Das : (2006) 11 Supreme Court Cases 587.

12. Adverting to the instant one, there are specific averments in the plaint that 'the plaintiffs namely Brij Lal and Ram Rakhi were always and are ready and willing to perform their part of the aforesaid agreement for sale dated 12.6.1987. They had been requesting the defendant namely Bagga Singh to receive the balance of sale consideration and expenses of stamp and registration and to execute and get registered sale deed in favour of the plaintiffs namely Brij Lal and Ram Rakhi in equal shares as owners thereof in accordance with the terms, conditions and stipulations of the above said agreement for sale but on one pretext or the other, the defendant namely Shri Bagga Singh had been putting off the matter and declined to receive the balance of sale consideration and expenses of stamp and registration. That in the month of December, 1988 the defendant namely Bagga Singh received from the plaintiff namely Brij Lal Rs. 8000/- for stamp and registration expenses and this amount was paid by Brij Lal to the defendant Bagga Singh in pursuance and in accordance with the terms and conditions and stipulations of the above said agreement for sale dated 12.6.87 to get executed and registered sale deed in favour of the plaintiffs of the land specified in the aforecited agreement for sale dated 12.6.87.' The plaintiff Brij Lal appearing as PW-3 has testified that ' I and my wife had been continuously ready and willing to get the sale deed executed and registered in terms of agreement from Bagga Singh. We were ready with the money which is payable by us and we had informed Bagga Singh in this connection. 1 had asked Bagga Singh to execute the sale deed and to receive the balance of sale consideration but he had been putting me off with one pretext or the other. About 1-6 months after execution of Ex.P-1 Bagga Singh received Rs. 8,000/- from me saying that he will purchase the stamp paper for execution of the sale deed in our favour. He asked me to reach Doraha before the scribe whose name is probably Harbans Singh. Some sale deed was written there and Bagga Singh was present there. Some other numbers were entered in the sale deed and sale deed was in the name of my son. As the sale deed was not according to agreement I objected. Bagga Singh then did not sign that sale deed and left the place of scribe. Thereafter also, I had been ready and willing to get the sale deed executed according to agreement Ex.P-1, but Bagga Singh did not execute the sale deed.'

13. Bagga Singh defendant as DW-2 has testified that 'I never entered into agreement with the plaintiff of the land in dispute. 1 am the owner in possession of the property in dispute. I have never entered into an agreement dated 12.6.87 or any other date with the plaintiffs. I have never received Rs. Thirty Nine thousand from the plaintiff as a earnest money nor I have thumb marked any agreement regarding the sale of the land with the plaintiffs. I have never entered into an agreement of my land 14 Bighas 18 Biswas with the plaintiffs for a consideration of Rs. 85,000/-. The alleged agreement is a forged document and the same is procured by the plaintiff with marginal witnesses who are inimical with me. The plaintiffs have procured the fabricated document with the active connivance with Achhra Singh and Gujar Singh and Virbhan alleged scribe of the fabricated document. 1 have never received Rs. Eight thousand in December, 1988 for the purchase of stamp and registration fee.... I have entered into contract and executed sale deed in favour of Ravi Kumar son of Megh Raj for a consideration of Rs. 60,000 and the sale deed executed by me in favour of Ravi Kumar is also without consideration and no sale consideration has been given to me by Ravi Kumar son of Megh Raj, grand son of the plaintiff.' Under the stress of cross-examination, he has testified that ' 1 obtained the amount from Achhra Singh on pronote and receipt. ... I have no enmity with Gujjar Singh, the other marginal witness of alleged agreement to sell Ex.P.1. I have no dispute with Bir Bhan, the scribe of the alleged agreement Ex.P.1.' It is worth pointing out here that in his examination-in-chief he has deposed that the attesting witnesses/scriber of the disputed agreement to sell Ex.P-1 are inimically disposed of towards to him, but in the cross-examination he denied this fact. This shows his conduct. If the above referred averments extracted from the plaint are looked in the background of the observations rendered in re: Rameshwar Prasad (supra), it transpires that the plaintiffs had been and are still ready and willing to perform their part of the contract. The learned Counsel for the appellants has produced certified copy of the sale deed executed on 9.4.1988 and registered on 19.4.1988 which is taken on record as Mark X/l. As the contents of this deed read, Bagga Singh executed and registered this sale deed in favour of Ravi Kumar son of Megh Raj son of Brij Lal in relation to land measuring khasra No. 61(13 Bighas 13 Biswas), Khasra No. 63 (17 Bighas 17 Biswas), Khasra No. 64 (7 Bighas 16 Biswas), khasra No. 65 (15 Bighas 15 Biswas), Khasra No. 78/2(17 Bighas 17 Biswas) and Khasra No. 79/2 (15 Bighas 3 Biswas) for a consideration of Rs. 40,000/-. As per Ex.P-3 the copy of the jamabandi for the year 1987-88 Bagga Singh was the is owner of the land measuring 55 Kanals 2 Bighas bearing Khasra No. 78/2(14 Bighas 3 Biswas), 79/2/2(11 Bighas 3Biswas), 5/2(0 Bigha-18 Biswas), 6(4 Bighas-5 Biswas), 63/3(15 Bighas-11 Biswas), 124/2/1(0 Bighas- 12 Biswas), 59/2 (0 Bighas-14 Biswas). In the remarks column of this jamabandi, it has been mentioned that vide mutation No. 1575 Bagga Singh has alienated this entire land in favour of his sons Darshan Singh, Boota Singh, Manjit Singh, Pritam Singh and Kuldeep Singh. Both the Courts below have returned a consistent finding that the sale agreement dated 12.6.1987 Ex.P.1 was executed by Bagga Singh in favour of the plaintiffs. Bagga Singh has denied the execution thereof. This document purport to bear his thumb impression. The science of Finger Prints is perfect. If this document did not bear his thumb impression, he could have got the same examined from some Finger Print Expert to prove it to be a forged and fabricated document. A perusal of the record reveals that he did not have the courage to examine any expert. As per stipulation in Ex.P.1, the sale deed was to be executed and registered by 31.12.1987. As emanates from the testimony of Virbhan scribe of Ex.P.1 the amount of Rs. 78,000/- was paid as earnest money by the plaintiffs to Bagga Singh. The entire sale consideration was Rs. 85,000/-. It is thus, inferable that only an amount of Rs. 7000/- remained due from the plaintiffs to the defendant Bagga Singh. This is indicative of the fact that substantial amount of sale proceeds has already been received by Bagga Singh at the time of execution of Ex.P.1. Bagga Singh has come up with a specific plea in his written statement as also in his evidence that the alleged agreement is a forged and fabricated document. It clearly indicates that his intention was mala fide right from the beginning. He has not come with clean hands to the court. As per mark X/1, he has sold the land measuring 10 Bighas only out of Khasra numbers referred to hereinbefore. The common khasra Nos in the disputed agreement Ex.P.1 as well as the sale deed Mark X/1 dated 5/19-4-1988 are 65, 78/2 and 79/2. He did not sell any area out of khasra Nos. 77/2. As per Mark X/1 the area of khasra Nos. 65, 78/2, and 79/2, is 15 Bighas-15 Biswas, 17 Bighas 17 Biswas and 15 Bighas-3 Biswas respectively. The total area of these Khasra Nos. works out to 48 Bighas-15 Biswas. According to Ex.P-1, he has agreed to sell the land measuring 14 Bighas 18 Biswas in favour of the plaintiffs. The total area of the disputed sale agreement as also Mark X/1 works out to 24 Bighas 18 Biswas, whereas the area of khasra numbers which are common in both these documents as noted supra comes to 48 Bighas 15 Biswas. This apart, the area of khasra No. 77/2 is also to be taken into account. In these premises, non-joining of Ravi Kumar as a party to the proceedings herein, this case, hardly affects the grant of specific performance. Had Bagga Singh sold the entire area of the above mentioned khasra No. s, only in that eventuality, the problem would have cropped up in granting such relief without joining Ravi Kumar. A combined reading of Ex.P1 as well as Mark X/1 would reveal that Bagga Singh defendant had executed and registered the sale deed after 3 months and 19 days of the expiry of the date as stipulated in Ex.P-1, though needless to say, limitation for filing the suit for specific performance is 3 years.

14 In re: Waryam Singh and Ors. v. Gurnam Singh and Ors. (1991) 100 PLR 246 it has been held as under:

After entering into an agreement with the vendee, the vendor immediately entered into another agreement of sale of the land in dispute in favour of another person who had been impleaded as a party. No useful purpose would have been served thereafter to offer the entire sale consideration to the vendor and to call upon him to execute the sale deed in favour of the vendee. His intention not to do so per se was apparent on his entering into the latter agreement for a higher price. The only course open to the vendee was to straight away file the suit for specific performance of the contract. In those circumstances, failure of the vendee to plead that he tendered the sale consideration amount to the vendor and called upon him to execute the sale deed in his favour, was not fatal to the suit particulars given in the Forms attached to the Schedule in the C.P.C. to be mentioned in the plaint are only by way of guidance. Nonobservance of such Forms cannot in any manner deny the party the relief otherwise due under the law.

15. In re: M.L. Devinder Singh and Ors. v. Syed Khaja : AIR 1973 Supreme Court 2457 it has been observed as under:

Mere specification of a sum of money to be paid for breach in order to compel the performance of the contract does not by itself remove the strong presumption contemplated by the use of the words 'unless and until the contrary is proved'. The sufficiency or insufficiency of any evidence to remove such a presumption is matter of evidence. It is only when payment is an alternative to carrying out the other terms of the contract, it would exclude, by the terms of contract itself, specific perfonnance of the contract to convey a property. The jurisdiction of the Court to decree specific relief is discretionary and must be exercised on sound and and reasonable grounds 'guided by judicial principles and capable of correction by a Court of appeal.' This jurisdiction cannot be curtailed or taken away by merely fixing a sum even as liquidated damages. It is made perfectly clear by the provisions of Section 20 of the old Act (corresponding to Section 23 of the Act of 1963) that the Court has to determine, on the facts and circumstances of each case before it, whether specific performance of a contract to convey a property ought to be granted.

Section 16 of the Specific Relief Act, 1963 reads as under:

16. Personal bars to relief-Special performance of a contract cannot be enforced in favour of a person-

(a) who would not be entitled to recover compensation for its breach; or

(b) who has become incapable of performing, or violates any essential term of, the contract that on his part remains to be performed, or acts in fraud of the contract, or willfully acts at variance with, or in subversion of, the relations intended to be established by the contract; or

(c) who fails to aver and prove that he has performed nor has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than terms of the performance of which has been prevented or waived by the defendant.

Explanation- For the purpose of clause (c)

(i) where a contract involves the payment of money, it is not essential for the plaintiff to actually tender to the defendant or to deposit in court any money except when so directed by the court;

(ii) the plaintiff must aver performance of, or readiness and willingness to perform, the contract according to its true construction.

It has been manifested in plain words in the language of explanation (i) that it is not essential for the plaintiff to actually tender to the defendant the money or to deposit the same, unless otherwise directed by the Court. It was not imperative on the plaintiffs to tender the amount to Bagga Singh defendant. Furthermore, when the latter repudiated the sale agreement Ex.P.1, plaintiffs were not required to tender the balance sale money before Bagga Singh defendant.

17. If Ravi Kumar had been added as defendant and contested the suit, he being the real grand son of the plaintiffs at the most would have taken the plea that he is a bonafide purchaser for value and without notice of Ex.P.1. This plea would have been hardly accepted by the Court for the simple and obvious reason that he being the real grand son of the plaintiffs and residing in the same village by no stretch of speculation would have remained oblivion of the fact that the defendant Bagga Singh has already executed the agreement in dispute in favour of the plaintiffs qua the land mentioned therein. Thus from whatever angle the matter may be viewed, Ravi Kumar was not a necessary or proper party herein. As a matter of fact, Bagga Singh defendant has defeated the equitable rights. Ravi Kumar being the grand son of the plaintiffs, it stands cogently established that he had express notice of the disputed agreement.

18. Though the contract for sale of immovable property does not create any interest in such property in the prospective vendee according to law, but on equitable grounds recognizes the principle that if there is a clear valid contract for sale, property in equity is transferred to the purchasers as the vendor, then becomes the 'trustee' for the vendee and, sequel to this, he is precluded from dealing with the property so as to defeat the rights of the prospective vendee. The subsequent transferee is required to prove (a) he or she is transferee for value, (b) he or she has paid money, (c) he or she acted bona fide and (d) he or she had no notice of the original contract. In the present one, Ravi Kumar at the most would have taken the plea that he had no knowledge of the agreement Ex.P.1. The same by no process of reasoning would have been accepted being the real grand son of the plaintiffs. In the present one, as already noticed Bagga Singh defendant has sufficient land in the same Khasra numbers, out of which, he has sold out 10 Bighas in favour of Ravi Kumar. The area left out by reducing 10 Bighas land is as much as would be more than enough to satisfy the decree if specific performance is granted on the basis of the disputed sale agreement. Thus, it would not be in the right perspective to decline the specific performance, merely because of the fact that some portion of the land comprised in Khasra numbers mentioned in the disputed agreement has been alienated by means of Mark X/l in favour of Ravi Kumar. In the ultimate analysis, it does not stand established that the third person i.e. Ravi Kumar has purchased the same land as has been recited in Ex.P.1. Accordingly, the substantial question of law stands determined.

19. In consequence of the preceding discussion, the judgment/decree dated 14.9.2004 passed by the learned Additional District Judge, Ludhiana is modified to the extent that the appellants are entitled to seek specific performance of Ex.P.1 and accordingly this relief is granted in their favour. The appellants shall deposit the balance sale consideration with the trial Court within two months from the date of receipt of the certified copy of this judgment and on such deposit, the respondent (defendants being the sons of Bagga Singh deceased defendant) will execute and register the sale deed pursuant to the sale agreement Ex.P-1 in favour of the plaintiffs within three months from the date of deposit. If they failed to execute and register the sale deed, in favour of the plaintiffs, in that eventuality, the trial Court shall be liberty to get the same executed and registered through the court Agency. Soon after the execution and registration of the sale deed, the balance amount of sale consideration shall be disbursed to the respondents (defendants) being the legal representatives of the deceased Bagga Singh. However, if the plaintiffs did not deposit the balance amount of sale consideration within the said period, their suit shall stand dismissed. The stamp and registration expenses shall be borne by the plaintiffs-appellants.


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