Vishnudas Dnyanoba Padile And ... vs Bhanudas Nivrutti Gurame
2021 Latest Caselaw 12726 Bom

                                                                      sa-620-2019.odt


               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                          BENCH AT AURANGABAD

                           SECOND APPEAL NO.620 OF 2019

     VISHNUDAS S/O DNYANOBA PADILE (DIED) THR LRS NIVEDITA
                  VISHNUDAS PADILE AND ORS
                           VERSUS
                BHANUDAS S/O NIVRUTTI GURAME

                                         ...
                     Mr. S. S. Manale, Advocate for appellants.
                    Mr. A. S. Reddy, Advocate for the respondent.
                                         ...

                                   CORAM        : SMT. VIBHA KANKANWADI, J.

                                   DATE         : 07.09.2021

ORDER :-


.        Present appeal has been filed by the original defendants

challenging the concurrent judgment and decree. Present respondent -

original plaintiff had filed Special Civil Suit No.48 of 2010 (Old No.33 of

2016) before the learned Joint Civil Judge Senior Division, Udgir for

declaration and specific performance of the contract. The said suit came

to be decreed. It was declared that the sale deed bearing Registration

No.3248 of 2005 dated 29.08.2005 executed by defendant No.1 in

favour of defendant Nos.2 and 3 to the extent of suit land, is nominal,

bogus and inoperative. Defendant No.1 was directed to execute sale

deed of the suit land in terms of agreement to sell (Exhibit-48)

excluding the terms mentioned in pursis (Exhibit-102) in favour of the

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plaintiff by taking remaining amount of consideration Rs.12,29,000/-

and the consequential relief has been granted. The said decree was

passed by the learned Trial Judge on 20.04.2016. The said judgment

and decree was challenged by the present appellants by filing Regular

Civil Appeal no.36 of 2016. It was heard by learned District Judge-1,

Udgir and dismissed on 26.04.2019. Hence, this second appeal. During

pendency of the second appeal, appellant No.1 expired and appellant

Nos.2 to 4 are his legal representatives as well as his mother, who has

been brought on record by order dated 21.08.2021 passed in Civil

Application No.8483 of 2021.

2. Heard learned Advocate Mr. S. S. Manale for appellants and

learned Advocate Mr. A. S. Reddy for the respondent. In order to cut

short it can be said that both of them have made submissions in support

of their respective contentions.

3. Present respondent - original plaintiff had come with the case

that since defendant No.1 was indebted and was in financial need, there

were negotiations and the plaintiff agreed to purchase 2 Acres of land

from land bearing Survey No.308/2001 admeasuring 1 H 62 R situated

at Shelal, Tq. Udgir, Dist. Latur for a consideration of Rs.17,79,000/-.

That agreement was entered into on 02.03.2005 and on the same day,

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the earnest amount of Rs.5,50,000/- was paid to defendant No.1. It was

also stated that defendant No.1 had obtained loan from one

Sau. Sukumar Satish Godbharle and Sau. Manjusha Vaijanath Matpathi

and, therefore, he was in need of money. Original defendant No.4 i.e.

the wife of defendant No.1 had also signed the said agreement as

consenting party. Defendant No.1 did not comply with the terms and

conditions of the agreement and executed a false, fictitious, nominal and

bogus sale deed on 29.08.2005 in favour of defendant Nos.2 and 3, who

are his own children by showing their grandmother as their guardian

and, therefore, the plaintiff contends that the said sale deed is not

binding on him. He was ready and willing to perform his part of the

contract. He, therefore, prayed for the specific performance.

4. Defendants denied everything, even the execution of the

agreement to sell. It was then contended that the wife of the plaintiff

was Director of one Priyadarshini Mahila Co-operative Bank, Latur.

Sau. Sukumar Godbharle and Sau. Manjusha Matpathi were also

Direcotrs of the bank and they used to serve in the bank. All of them

had approached to defendant No.1 through his father-in-law and

induced that they would gave him employment in the bank. They had

then demanded amount of Rs.1,00,000/- and obtained 2 to 3 signatures

on blank stamp papers. Defendant No.1 was not given employment by

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them, but when he demanded the stamp papers back, a bogus

agreement to sell has been got prepared. It is also then contended that

defendant No.1 consumes liquor and taking disadvantage of his mental

condition, that documents have been prepared.

5. Parties have led oral as well as documentary evidence. Both the

Courts below have considered the proof about execution of agreement to

sell and it has been held that it has been proved. The attesting witness

has been examined. It is also held that the earnest amount has been

paid to defendant No.1 on the same day of agreement. It has also held

that defendant No.1 failed to bring on record as to why the attesting

witness would depose falsely against him. Therefore, when the

agreement to sell has been proved so also the payment of earnest

amount, then the only fact was to see as to whether plaintiff had shown

readiness and willingness to perform his part of the contract. It has

been vehemently submitted on behalf of appellants that the plaintiff has

not produced any such evidence on record that he had the capacity to

pay the earnest amount of consideration and the amount was ready with

him. At the outset, the argument is not convincing at all for the simple

reason that here, first of all, the facts are different. Here, there was a

condition put that defendant No.1 would prepare a road in the suit land

and would obtain N.A. permission by getting layout plan sanctioned by

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the end of 30.06.2005. No evidence was adduced by defendant No.1

that he had taken any such kind of step. Secondly, he then sold out the

property to his own children by showing his mother as their guardian on

29.08.2005. When both the parents are alive, why there was necessity

to show the grandmother as guardian of defendant Nos.2 and 3 is the

question, which has been left unanswered by defendants. Further, there

was every opportunity for defendants to ask ennumber of questions to

the plaintiff regarding readiness and willingness and the availability of

funds with him. No such cross has been conducted. Another point to be

noted is that defendant No.1 is admitting that he is addicted to vices.

Though he has denied that he had taken any kind of loan from the two

ladies, yet the fact has come on record. Another fact is that when those

persons had allegedly taken his signatures on the blank papers, what

estopped him from lodging any report with the police is not explained

by him. The wife i.e. defendant No.4, in fact, admits her signatures on

the agreement to sell as consenting party. Then it leaves no inference to

be drawn that defendant No.1 had executed agreement to sell in favour

of the plaintiff. Further coming back to the readiness and willingness of

the plaintiff to perform his part of the contract, as per the fact which has

been pleaded by defendants themselves that the wife of the plaintiff is a

director in the bank, he could have even raised loan for purchase of the

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property. The plaintiff was consistent enough in saying in his plaint as

well as in his examination-in-chief that he was ready and willing to

perform his part of the contract and that has been considered by both

the Courts below as requirement of Section 16-C of the Specific Relief

Act and that is a correct position of law. It is not necessary that the

plaintiff should show, by producing bank account that in his bank

account, he has sufficient balance on the day the performance sought.

6. During the course of argument it has been tried to be contended

by learned Advocate for appellants that the suit property was the

ancestral property and this fact has not been considered by the Courts

below. In fact, this submission at the second appeal stage itself is

surprising. Further, it is contrary to the record. If that was the ancestral

property, in which, apart from defendant No.1, his mother would have

had share, she cannot purchase the property of her ownership for and

on behalf of children of whom, she has been shown to be the guardian.

Therefore, such lame excuse now at the second appeal stage cannot be

accepted as substantial question of law.

7. Learned Advocate for appellants has relied on the decision in C. S.

Venkatesh Vs. A. S. C. Murthy (D) by Lrs. and others, [AIR 2020 (SC)

930], wherein Hon'ble Apex Court held that "if the plaintiff has failed to

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prove that he was having sufficient amount/financial capacity, it cannot

be said that he was ready and willing to perform his part of the

contract." The ratio in this case is not applicable here for the simple

reason that on the basis of scanning of evidence, the Court had come to

the conclusion that the plaintiff had no financial capacity, as he was left

with no property, either movable or immovable. Due to heavy loss, he

had suffered. Here, when the defendants were having every opportunity

to bring the financial condition of the plaintiff on record through cross

examination, that opportunity has not been utilized. Further, on similar

lines there are decisions in Ravi Setia Vs. Madan Lal and others, [2019

(9) SCC 381], Manjunath Anandappa Urf. Shivappa Hanasi Vs.

Tammanasa, [2003 AIR (SC)1391] and Vijay Kumar and others Vs. Om

Prakash, [2018 AIR (SC) 5098]. The ratio in these authorities is not

applicable here for the simple reason that though the ratio cannot be

disputed, but it has been arrived at on the basis of facts of the case. At

the cost of repetition, it can be said that the plaintiff in this case has

proved the readiness and willingness and it has been properly

appreciated by both the Courts below. Another point that has been tried

to be raised is that the guardian was not appointed for defendant Nos.2

and 3 and therefore, in absence of adherence of Order XXXII Rule 3 of

Code of Civil Procedure, the suit should be dismissed. He is relying on

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the decision in K. P. Natarajan and Anr. Vs. Muthalammal and ors.,

Special Leave Petition (c) No.2492 of 2021 decided on 16.07.2021 by

Hon'ble Supreme Court. Here, it is to be noted that the citation,

definitely, states that both the minors are under guardian of their natural

mother defendant No.4 and defendant No.4 in her independent capacity

also is party to the proceedings. Further, defendant No.1, as aforesaid,

is the father of defendant Nos.2 and 3. When both the parents, either in

their individual capacity are on record so also it is specifically mentioned

that the mother is the guardian, it was sufficient compliance and it

appears that it was never raised either before the Trial Court or before

the first Appellate Court. Neither defendant No.1, nor defendant No.4

have shown that they have any kind of adverse interest to the minors.

Further, reliance has been placed on the decision in Narayan Sitaramji

Badwaik (Dead) Through Lrs. Vs. Bisaram and others, Civil Appeal

No.6124 of 2011 decided by three judge Bench of the Hon'ble Supreme

Court on 17.02.2021, wherein it has been held that, "it is a well settled

position of law that a second appeal, under Section 100 of the Code of

Civil Procedure, lies only on substantial a question of law. However, this

does not mean that the High Court cannot, in any circumstance, decide

findings of fact or interfere with those arrived at by the Courts below in

a second appeal. In fact, Section 103 of the Code of Civil Procedure

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explicitly provides for circumstances under which the High Court may

do so." Thereafter, taking into consideration the facts of the case, the

High Court therein itself has observed in the impugned judgment that

the first Appellate Court approached the matter incorrectly and,

therefore, in that case, it was observed that the High Court ought to

have either remanded the matter, or exercised its power under Section

103 of the Code of Civil Procedure and decided the issues of fact. No

such situation is arising in this case and, therefore, these citations are

not applicable.

7. Both the Courts below have considered the facts and law points

properly. It requires no interference. No substantial question of law as

contemplated under Section 100 of Code of Civil Procedure is arising in

this case requiring admission of the second appeal. Second appeal,

therefore, stands dismissed.

[SMT. VIBHA KANKANWADI, J.]

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