* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RSA Nos.65/1997, 66/1997, 67/1997, 68/1997 & 69/1997
% 17th April, 2014
1. RSA No.65/1997
CHANDER LAL VIRMANI & ORS. ......Appellants
Through: Mr. R.G. Srivastava, Advocate.
VERSUS
SMT. RAM PIARI ...... Respondent
Through: Mr. Sunil Fernandes, Advocate.
2. RSA No.66/1997
CHANDER LAL VIRMANI & ORS. ......Appellants
Through: Mr. R.G. Srivastava, Advocate.
VERSUS
SMT. RAM PIARI ...... Respondent
Through: Mr. Sunil Fernandes, Advocate.
3. RSA No.67/1997
CHANDER LAL VIRMANI & ORS. ......Appellants
Through: Mr. R.G. Srivastava, Advocate.
VERSUS
SMT. RAM PIARI ...... Respondent
Through: Mr. Sunil Fernandes, Advocate.
RSA 65/1997 to 69/1997 Page 1 of 17
4. RSA No.68/1997
CHANDER LAL VIRMANI & ORS. ......Appellants
Through: Mr. R.G. Srivastava, Advocate.
VERSUS
SMT. RAM PIARI ...... Respondent
Through: Mr. Sunil Fernandes, Advocate.
5. RSA No.69/1997
CHANDER LAL VIRMANI & ORS. ......Appellants
Through: Mr. R.G. Srivastava, Advocate.
VERSUS
SMT. RAM PIARI ...... Respondent
Through: Mr. Sunil Fernandes, Advocate.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
RSA No. 65/1997
1. This second appeal is of the year 1997 i.e seventeen years old. I am informed that the suit was filed in the year 1967 i.e 47 years back. Besides RSA 65/1997 to 69/1997 Page 2 of 17 the aspect of litigation pending for the last 47 years, the biggest hurdle in effective disposal of this case is that there is almost no record of the trial court because the trial court record was destroyed. The only record available before me is the depositions of witnesses, and there are neither any pleadings of the case and nor are there any documents proved and exhibited by the parties in the court below. Yet, this Court has to perform the onerous task of deciding this second appeal as the counsel for the parties have stated no compromise is possible and appeal has to be decided on merits. This Court, therefore, with the assistance of counsels for the parties and the limited record available, has made an endeavour to understand the facts, the issues etc and accordingly decide the RSA. I may also note that most of the facts which are referred to in the present judgment would be the admitted/ common facts as were found/established in the trial court at the time of disposal of the suit. With this preface, let me turn to the facts and issues in the present case.
2. The disputed property is an old property which was initially owned by the Rehabilitation Department. The suit/disputed property is an old construction on a plot land admeasuring 40 sq yds. The suit property bears municipal number R-29, Double Storey, Maszid Road, Shiv Market, RSA 65/1997 to 69/1997 Page 3 of 17 Jungpura, New Delhi. The suit property was allotted by the Ministry of Rehabilitation to one Sh. Chaman Lal, original plaintiff, and who is now represented by his legal heirs the appellants. Sh. Chaman Lal paid 20% of the price of the property to the government and was to pay the balance of Rs.3,380/- to the Ministry of Rehabilitation. At this stage the defendant (respondent herein) entered into an agreement to sell with Chaman Lal on 07.01.1962 to purchase the suit property for a sum of Rs.5,825/-. The respondent/ defendant had to pay a sum of Rs.2,425/- to Chaman Lal/ plaintiff and was to pay the balance payment of Rs.3,380/- to the Ministry of Rehabilitation. The agreement dated 07.01.1962 entered into between the parties has been proved and exhibited before the court below as Ex. D1. Parties before me also do not dispute this agreement. As per this agreement, a power of attorney (POA) was executed in favour of the respondent/ defendant. After the respondent/ defendant made payment of the balance consideration of Rs.3,380/- to the Ministry of Rehabilitation, Chaman Lal/ plaintiff had to obtain necessary permission for selling of the suit property to the respondent/ defendant and also transfer the same to the respondent/defendant. Disputes arose between the parties because whereas the respondent/defendant claimed that the POA executed in favour of the respondent/ defendant had to be registered by Chaman Lal/ plaintiff but the RSA 65/1997 to 69/1997 Page 4 of 17 same was not got done and thus the respondent/ defendant could not pay the balance sale consideration of Rs.3,380/- to the Ministry of Rehabilitation, the plaintiff/ Chaman Lal alleged that the respondent/ defendant had committed a breach of contract by not making payment of the balance sale consideration of Rs.3,380/- to the Ministry of Rehabilitation. Chaman Lal/ plaintiff thereafter paid the balance sale consideration to the Ministry of Rehabilitation and got the sale deed executed in his favour from the Ministry of Rehabilitation. The disputes continued between the parties because Chaman Lal/ plaintiff claimed that the respondent / defendant did not make payment of moneys for completing the sale transaction but the respondent/ defendant on the other hand insisted that the breach of contract was on the part of Chaman Lal/ plaintiff. Notices were exchanged between the parties and some of them have been proved on record of trial court as Ex. DW4/3, Ex. DW4/7, Ex. DW4/9 & Ex. DW4/13. What are the dates of these notices, is not too clear from the judgments of the court below which are available in this case, however, the notices appear to be of the years 1964, 1966 & 1967 as agreed before me by the counsels for the parties. The plaintiff / Chaman Lal thereafter alleging that the respondent/ defendant was only a licencee, cancelled the licence by means of legal notice exhibited as Ex. PW9/8 and RSA 65/1997 to 69/1997 Page 5 of 17 the corresponding postal receipt was exhibited as Ex. PW9/9 and whereafter in 1967 the subject suit for possession and mense profit came to be filed.
3. Following issues were framed in the suit :-
"ISSUES:
1) Is defendant no.1 is a licencee under the plaintiff, if so, under what terms? OPP
2) If issue no.1 is proved, is this suit maintainable in its present form? OPD
3) Has the plaint not properly valued for the purpose of court fee and jurisdiction? OPD
4) Is the suit bad for mis-joinder of defendants? OPD
5) If issue no.1 is proved, to what amount of licence fee is the plaintiff entitled? OPP
6) If defendantno.1 is guilty of breach of agreement to sell? OPP
7) Has the plaintiff been ready and willing to perform his part of contract? OPP
8) Did the plaintiff make it impossible for defendant no.1 to deposit the balance sale consideration with the Rehabilitation Authorities? If so, to what effect? OPD
9) If defendant no.1 still ready / willing to perform her part of the contract, if so what extent/ effect? OPD
10) If any equal efficacious relief open to the plaintiff: If so, what is that relief and to what effect? OPD
11) Is the plaintiff entitled to rescind the agreement? OPP
12) Is defendant no.1 in possession of the house in dispute in her own right and as owner as alleged in para nos. 11, 15 and 5 of the written statement? OPD
13) Relief."
4. The trial court decreed the suit holding the respondent/ defendant guilty of breach of contract. The first appellate court upturned the judgment of the trial court and dismissed the suit by holding that the respondent/ RSA 65/1997 to 69/1997 Page 6 of 17 defendant cannot be said to be guilty of breach of contract. The first appellate court has thereafter come to the following conclusion for allowing the appeal filed by the respondent/defendant:-
(i) The plaintiff/ Chaman Lal was guilty of breach of contract because he admitted in his cross-examination that when he took the POA executed by Ram Pyari to the Ministry of Rehabilitation, the Ministry of Rehabilitation had informed him that POA had to be prepared by the respondent / defendant, however, no such steps were taken by the plaintiff/ Chaman Lal for approaching Ram Pyari for preparation of the POA and its registration. In the cross-examination, plaintiff/ Chaman Lal admitted that POA had to be registered, but was not registered.
(ii) The agreement in question i.e the agreement dated 07.01.1962, Ex.D1, is in the nature of agreement falling under Section 53A of the Transfer of Property Act, 1882 i.e the respondent/ defendant was not a licencee under the alleged oral agreement entered into five days before the written agreement on 7.1.1962, as was claimed by the plaintiff/ Chaman Lal. This was because not only the oral agreement was not proved but also because an oral agreement could not be proved to contradict the written RSA 65/1997 to 69/1997 Page 7 of 17 terms of the agreement dated 07.01.1962 in view of Sections 91 & 92 of the Evidence Act, 1872.
(iii) The husband of the respondent / defendant was a government employee working in Railways and there was no reason why he having necessary financial wherewithal would have not paid the balance sale consideration to the Rehabilitation Department or to the plaintiff/ Chaman Lal after the plaintiff / Chaman Lal had paid the balance sale consideration to the Ministry of Rehabilitation.
(iv) Accordingly, holding the plaintiff/ Chaman Lal guilty of breach of contract, the first appellate court dismissed the suit for possession and mesne profit but simultaneously, directed the respondent/ defendant to pay a sum of Rs.3,380/- to the plaintiff/ Chaman Lal within 30 days from the date of judgment of the first appellate court.
5. The issue before this Court is whether the impugned judgment of the first appellate court can be said to be illegal and perverse and that substantial questions of law arise which can be answered in favour of the appellant/plaintiff. The following substantial questions of law were framed by this Court on 13.10.1997 and 30.08.1999:-
Substantial questions of law framed on 13.10.1997 are:-RSA 65/1997 to 69/1997 Page 8 of 17
"I. Whether the respondent is entitled to the benefit of Section 53A of the Transfer of Property Act under the agreement to sell dated 7th January, 1962? If so, its effect?
II. Whether the plea of oral agreement in between the parties as to the induction of the respondent in the property as a licensee barred, when there is no much recital in the agreement dated 7 th January, 1962?
III What would be the time available to an intending buyer of an immovable property to pay the sale consideration when there is no stipulation with regard to the time for payment of the consideration in the impugned agreement to sell?" Substantial question of law framed on 30.08.1999 are:-
"I. Whether the respondent is entitled to protection under Section 53 A of the Transfer of Property Act?
II. Whether the plea of oral agreement between the parties as to the induction of the respondent to the suit property as an alleged licensee is barred when the main agreement dated 07.01/1962 is silent on the said issue?
III. Whether a seller of an immovable property whose title itself is not complete can enter into any such agreement to sell with any such buyer and whether such an agreement is legal and enforceable?
IV. Whether law permits any buyer of immovable property not to pay sale consideration for an indefinite period even if no time limit is specified in the agreement to sell?"
6. So far as the first two questions which have been framed on 13.10.1997 and 30.08.1999 are concerned, they are the same. Essentially, therefore, there would be a total of five substantial questions of law i.e the RSA 65/1997 to 69/1997 Page 9 of 17 four substantial questions of law framed on 30.08.1999 and the fifth one being the third substantial question of law framed on 13.10.1997.
7. So far as the first question of law i.e 'whether the agreement in question dated 07.01.1962 is one falling under Section 53 A of the Transfer of Property Act, 1882 is concerned, no doubt, when the agreement dated 07.01.1962 when the same was originally entered into, it in a way could not be said to be an agreement falling under Section 53 A because the plaintiff/Chaman Lal was not the owner of the property, however, in law subsequent events can cause a person to become the owner of the property and in which circumstance the agreement would become an agreement to sell. Indication of this is given under Section 43 of the Transfer of Property Act and which reads as under:
"43. Transfer by unauthorized person who subsequently acquires interest in property transferred. - Whether a person fraudulently or erroneously represents that he is authorized to transfer certain immovable property and professes to transfer such property for consideration, such transfer shall, at the option of the transferee, operate on any interest which the transferor may acquire in such property at any time during which the contract of transfer subsists. Nothing in this section shall impair the right of transferees in good faith for consideration without notice of the existence of the said option."RSA 65/1997 to 69/1997 Page 10 of 17
8. Therefore, when the plaintiff/Chaman Lal became owner of the suit property, and at which stage there was no notice by which the agreement dated 07.01.1962 was cancelled, at that stage the agreement dated 07.01.1962 became an agreement to sell in the nature as found in Section 53A of the Transfer of Property Act, 1882. Accordingly, I hold that in the facts of the case that once the agreement dated 07.01.1962 did pass possession of the suit property to the respondent/defendant, this possession subsequently became a possession under Section 53 A of the Transfer of Property Act in the nature of the part performance. That the plaintiff/Chaman Lal became the owner of the suit property by getting a registered conveyance deed from the Ministry of Rehabilitation is proved before the trial court as the deeds from the Ministry in favour of Chaman Lal/plaintiff have been proved and exhibited before the trial court as Ex PW8/21 & Ex. PW8/17. The original agreement dated 07.01.1962 when it was entered into was inchoate as required under Section 53 A of Transfer of Property Act, subsequently it became a choate agreement once the plaintiff/ Chaman Lal became owner of the property. No substantial question of law accordingly arises so far as this finding of first appellate court is concerned and which first appellate court has held that the respondent/defendant is entitled to take benefit of the agreement dated 07.01.1962 by taking the RSA 65/1997 to 69/1997 Page 11 of 17 same in the nature of part performance under Section 53A of the Transfer of Property Act.
9. So far as the second substantial question of law is concerned, the same has rightly been answered in favour of the respondent/ defendant by the first appellate court by referring to Sections 91 & 92 of the Evidence Act,1872 in as much as once there is a written agreement between the parties no oral evidence can be led to contradict or vary the terms of the written agreement. Accordingly, this question of law also really does not arise and in any case is answered in favour of the respondent /defendant.
10. So far as the third substantial question of law which was framed on 30.08.1999 is concerned, the same will stand answered in favour of the respondent/plaintiff in view of the discussion given with respect to the substantial question of law no.(i) of applicability of Section 53 A of the Transfer of Property Act.
11. That takes us to the third substantial question of law dated 13.10.1997 and the fourth question which was framed on 30.08.1999. Essentially, both of them pertain to the same issue as to whether time of performance was of essence of the contract and even if no time for performance was specified, what would be the time in which the performance should be granted. This RSA 65/1997 to 69/1997 Page 12 of 17 will include the aspect as to the time available to the respondent/ defendant to make payment of the balance sale consideration. The first appellate court has held the respondent/plaintiff guilty of breach of contract, and this being an aspect of appreciation of evidence, no substantial question of law arises under Section 100 CPC to hold otherwise. In my opinion, really the crux of the matter and the most important issue which is required for adjudication by this court pertains to these issues because even if the respondent/ defendant is allowed to take benefit of Section 53 A of the Transfer of Property Act, should not the appellants, legal heirs of the original plaintiff /Chaman Lal be suitably compensated, because, Chaman Lal /plaintiff did pay the balance sale consideration of Rs.3,380/- to the Ministry of Rehabilitation, and which benefit goes to the respondent/ defendant in view of the judgment of the first appellate court.
12. It is also relevant to note that the effect of dismissing the suit for possession of the plaintiff/ Chaman Lal and dismissal of this appeal would have the effect of respondent/ defendant becoming owner of the property by virtue of Section 53 A of the Transfer of Property Act but subject to paying a sum of Rs.3,380/- as directed by the first appellate court. RSA 65/1997 to 69/1997 Page 13 of 17
13. In my opinion it is at this stage that the discretionary power of this Court similar to those found under Section 20 of the Specific Relief Act, 1963 comes in. That the courts have power to increase the price is no longer res integra and two judgments of the Supreme Court in this regard are Nirmala Anand Vs. Advent Corporation (P) Ltd. and Ors. 2002 (8) SCC 146 and Satya Jain (D) Thr.Lrs. & Ors. Vs. Anis Ahmed Rushdie 2013 (8) SCC 131.
14. In the judgment in the case Nirmal Anand (supra) a Division Bench of three Judges of the Supreme Court held that the Courts have power in appropriate cases to increase the price payable for an immovable property which is the subject matter of an agreement to sell. This was reiterated by a Division Bench of two Judges in Satya Jain (supra) case.
15. In the peculiar facts of this case where the respondent/plaintiff is in possession of the suit property since 1962 pursuant to rights created under Section 53A T.P.Act having paid part consideration, and most part of the trial court record being destroyed, in order to do complete justice between the parties I invoke the ratios of the judgments of the Supreme Court in the cases of Nirmala Anand (supra) and Satya Jain (supra), and it is deemed fit that instead of only granting a sum of Rs.3,380/- to the appellants (legal RSA 65/1997 to 69/1997 Page 14 of 17 heirs of Chaman Lal/ plaintiff), the appellants must instead get 50% of the present market value of the suit property. I am informed by counsel for both the parties that approximately the market value of the suit property would lie between Rs.40 lacs to Rs.50 lacs, and consequently, I am taking the middle figure of Rs.45 lacs as the market value of the property today. Fifty percent of this market value would be therefore a sum of Rs.22.50 lacs and this sum of Rs.22.50 lacs be accordingly deposited in this Court by the respondent/defendant within a period of three months from today and which amount will be paid to the appellant for the balance price as the property. The respondent/ defendant on depositing the amount of Rs. 22.50 lacs will be entitled to apply for mutation in her name of the suit property in the records of the governmental authorities. Amount on being deposited would be put by the Registry in a fixed deposit so as to earn maximum rate of interest and the amount can be withdrawn by the appellants in accordance with their legal shares either in terms of the law of succession or in terms of any testamentary documents which one or more of the appellants may propound in his / her favour from the original plaintiff/ Chaman Lal and who is the father / grandfather/ father in law of the appellants. RSA 65/1997 to 69/1997 Page 15 of 17
16. At the end of this judgment, I must add that within the limitation of there not being complete record of the trial court, and there being only limited record in the form of oral depositions of the witnesses, this judgment has been passed with the assistance of the counsel for the parties because though at one stage compromise talks were going on, but on account of unnecessary insistence of some of the appellants, the compromise could not go through, though the respondent/ defendant was always ready and willing to go ahead with the compromise and arriving at a pragmatic solution to the problem which was there in the present case. I think I have, so to say, given a practical and pragmatic compromise between the parties and to this litigation pending for almost half a century. I also thank counsel for the parties for the stand taken before this Court of agreeing to the approximate market value of the suit property as on today and which figure has been taken for the purpose of passing of the present judgment.
17. The appeal is accordingly partly allowed by enhancing the amount payable to the appellants from Rs.3,380/- as directed by the first appellate court to Rs.22.50 lacs as stated in the present judgment. Parties are left to bear their own costs.
RSA Nos. 66/1997, 67/1997, 68/1997 & 69/1997 RSA 65/1997 to 69/1997 Page 16 of 17 In view of the judgment passed in RSA No. 65/1997, these appeals would also stand dismissed because these appeals are with respect to the licence fee/mesne profits which were to be paid by the respondent/ defendant to the appellants.
APRIL 17, 2014 VALMIKI J. MEHTA, J.
sm
RSA 65/1997 to 69/1997 Page 17 of 17