Bombay High Court
Shi Mahadev Sitaram Navale And Ors. vs Sshri Baburao Ramchandra Navale And ... on 8 September, 2025
Digitally signed
by VARSHA
VARSHA VIJAY
VIJAY RAJGURU
2025:BHC-AS:37267
RAJGURU Date:
2025.09.08
17:25:13 +0530
1-SA-10-1994
varsha
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
SECOND APPEAL NO. 10 OF 1994
1. Shri Mahadeo Sitaram Navale,
2. Smt. Chaturabai Mahadeo Navale,
Both Agriculturist, Resident of
Shendurjane, Taluka Wai,
District: Satara .... Appellants
Versus
1. Shri Baputao Ramchandra Navale,
deceased by his heirs.
A. Smt. Manukabai Bapurao Navale,
B. Gulab Bapurao Navale,
C. Subhash Bapurao Navale,
D. Shivaji Bapurao Navale,
E. Smt. Suman Ramchandra Gaikwad,
F. Smt. Nanda Sambhaji Jagtap,
All of Adult and residing
at Shendurjane, Taluka Wai,
District Satara.
2. Pushpa Ankush Navale,
3. Yogita Ankush Navale,
4. Prabhakar Ankush Navale,
All Agriculturist, Resident of
Shendurjane, Taluka Wai,
District Satara. .... Respondents
Page no. 1 of 44
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1-SA-10-1994
Mr. Amol Sakpal for Appellants.
Ms. Riddhi Gurav i/b. Mr. Ashwin Kapadnis for Respondent
Nos. 3 to 4.
Mr. S.G. Deshmukh i/b. Mr. Ajit J. Kenjale a/w. Mr. Sai
Rajendra Kadam for Respondent Nos. 1A to 1F.
CORAM : GAURI GODSE J.
RESERVED ON: 8th MAY 2025
PRONOUNCED ON: 8th SEPTEMBER 2025
JUDGMENT :
-
Basic Facts:
1. This second appeal is preferred by the original
defendants to challenge the judgment and decree passed by
the first appellate court for specific performance of an
agreement executed by the defendants in favour of Ankush
Navale. After the execution of the agreement, Ankush
expired. The respondents are the original plaintiffs. Plaintiff
no. 1 is the father of Ankush, plaintiff no. 2 is the widow of
Ankush and plaintiff nos. 3 to 5 are the children of Ankush
and plaintiff no. 2. The second appeal was admitted on 10 th
January 1994 on the following substantial questions of law.
Page no. 2 of 44
1-SA-10-1994
"1) Whether the first appellate court did not frame
proper points for its determination while deciding the
appeal?
2) Whether the first appellate court ought to have
specifically addressed itself to the question of exercise
of discretion as contemplated under section 20 of
Specific Relief Act, 1963 and the decree passed by
first appellate court is vitiated by reason of omission
on the part of first appellate court to do so?
3) Whether the suit transaction evidenced by the
purported agreement of sale dated 25-5-1977 was
liable to be viewed in conjunction with or in context of
several money, lending transactions between the
parties at or about his time when the suit agreement
was arrived at or independently thereof ?"
2. The agreement for sale was executed on 27 th May
1977 (hereinafter referred to as "the suit agreement"). The
plaintiffs contended that the suit agreement was executed by
the defendants, i.e. the present appellants, for the sale of
their property, i.e. Gat No. 497 (hereinafter referred to as "the
suit property"). The trial court dismissed the suit. In an appeal
preferred by the plaintiffs, the suit is decreed, and the
defendants are directed to execute a sale deed in favour of
the plaintiffs with respect to the suit property.
Page no. 3 of 44
1-SA-10-1994
3. The appellants filed an application in this appeal for
permission to produce additional evidence. It is the
appellants' case that plaintiff nos. 2 to 5, i.e. the widow and
children of deceased Ankush, executed and registered a
deed of cancellation of the suit agreement. The cancellation
document was executed on 23rd January 2020. Hence, the
appellants filed an application to bring the document of
cancellation on record as additional evidence. By order dated
27th February 2025, this court allowed the application to
produce additional evidence, and the appellants were
permitted to produce the original document dated 23 rd
January 2020 before this court.
4. Accordingly, the original document was produced
before this court on 6 th March 2025. The original document
and the photocopy were forwarded to the learned Registrar
(Judicial-I) for verification. The original document was
accordingly verified by the learned Registrar (Judicial-I), and
a report was placed on record. The original document was
returned to the learned advocate for the appellants, and the
verified photocopy was taken on record on 6 th March 2025,
and marked 'X' for identification. Respondent No. 2, i.e. the
Page no. 4 of 44
1-SA-10-1994
widow of Ankush, expired during the pendency of the second
appeal. The children of respondent no. 2 and deceased
Ankush are already on record in different capacity as
respondent nos. 3 and 4, hence the name of respondent no.
2 was deleted. Respondent No. 5 was deleted as he died,
unmarried and issueless.
5. The impugned decree grants specific performance of
the contract executed in favour of Ankush. Thus, in view of
the impugned decree, the respondents claim to get the sale
deed executed in their favour in terms of the contract that
was executed in favour of Ankush. Respondent nos. 2 to 5
are the Class-I heirs of deceased Ankush. However, they
executed a registered document and cancelled the suit
agreement. The respondents do not deny the execution of
the document. Hence, the document produced on record by
way of additional evidence was admitted in evidence and
marked as 'X1' by order dated 27th March 2025.
6. In view of the aforesaid development, additional
substantial questions of law were framed under the proviso
to sub-section (5) of Section 100 of the Code of Civil
Page no. 5 of 44
1-SA-10-1994
Procedure, 1908 ("CPC"). The additional substantial
questions of law framed on 27th March 2025, read as under:
"(I) Whether the document at exhibit X1 would be hit by
the principles of Section 52 of The Transfer of Property
Act 1882?
(II) Whether the document at exhibit X1 would amount
to respondent nos. 2 to 5 relinquishing their right to
seek specific performance of the agreement executed
in favour of Ankush?
(III) In view of the cancellation of the said agreement by
class-I heirs of Ankush, whether the decree for specific
performance would be sustainable only in favour of
respondent no. 1, i.e. father of deceased Ankush?
(IV) Whether in view of the document at exhibit X1, the
suit agreement would be enforceable?"
Submissions on behalf of the appellants (defendants):
7. The plaintiffs claim specific performance of the suit
agreement in favour of plaintiff no.1 alone. However, plaintiff
no. 1 was not a party to the suit agreement. The suit
Page no. 6 of 44
1-SA-10-1994
agreement is alleged to have been executed in favour of the
deceased, Ankush. Plaintiff no.1 was a money lender, and
defendant no. 1 had taken hand loans from him from time to
time. Plaintiff no. 1 had issued receipts for the loans
advanced, and each time he charged interest thereon.
Before executing the suit agreement, plaintiff no. 1 had filed
various money suits to recover the amounts advanced as
loans to the defendants. Plaintiff no. 1 filed Regular Civil Suit
No. 110 of 1974 for recovering an amount of Rs. 3000/-. A
decree was passed in favour of plaintiff no. 1, and he also
filed execution proceedings, recovering the amount due
under the decree. Similarly, Regular Civil Suit No. 232 of
1975 was filed for recovering Rs. 3450/- and in execution
proceedings, part of the amount towards the decretal amount
was recovered. Thus, the agreement for sale was executed
solely to secure the loan amount advanced by plaintiff no. 1
to the defendants. The amounts paid and receipts issued
were not related to the suit agreement, but rather to the loan
amount.
8. Pursuant to an order dated 26 th October 1977, passed
in Regular Civil Suit No. 110 of 1974, the suit property was
Page no. 7 of 44
1-SA-10-1994
attached, and simultaneously, plaintiff no.1 also sought
specific performance of the alleged suit agreement dated 27 th
May 1977. Plaintiff no. 1 had also filed Regular Civil Suit
No.116 of 1983 for an injunction against defendant no.1, that
he should not disturb plaintiff no. 1's possession. However,
the said suit was dismissed. The plaintiffs were aware that
the suit property is ancestral, and there were other co-
sharers along with defendant no.1. In the absence of a
partition of the suit property and in the absence of any legal
necessity, the suit agreement cannot be specifically
performed. The mother of defendant no. 1 had executed a
Will dated 29th August 1973, and she bequeathed her share
to her three grandsons. Accordingly, an application for
probate was also filed and letters of administration was
granted on 31st March 1980. Thus, the defendants had no
authority to transfer shares of the other co-sharers to a third
party, and they never intended to do so. Therefore, the suit
agreement was not enforceable.
9. Plaintiff no. 1 failed to enter into the witness box to
avoid cross-examination and counter questions on the loan
transactions. The evidence led by his son, as his power of
Page no. 8 of 44
1-SA-10-1994
attorney holder cannot be relied as rebuttal evidence to the
defendants' evidence that there were loan transactions
between the defendants and plaintiff no. 1. Hence, the
receipts at Exhibits 41 and 42 cannot be relied upon as
sufficient evidence to support the plaintiffs' contention that
the defendants had agreed to sell the suit property to plaintiff
no.1 or Ankush and the amounts were paid towards part
consideration amount.
10. The first appellate court failed to consider that the
evidence on record indicated that the transaction between
plaintiff no. 1 and the defendants was a loan transaction and
that the defendants never agreed to sell the suit property.
The first appellate court failed to consider the provisions of
Section 20 of the Specific Relief Act while granting the
decree for specific performance. The first appellate court
could not have interfered with the trial court's findings.
Hence, the first three questions of law must be answered in
favour of the appellants.
11. After the death of Ankush, in whose favour the suit
agreement is alleged to have been executed, respondent
Page no. 9 of 44
1-SA-10-1994
nos. 2 to 5, being the Class-I heirs, were entitled to seek
specific performance of the contract in the name of Ankush.
However, the said respondents executed and registered a
cancellation deed, which is produced on record by way of
additional evidence. The cancellation deed is not challenged
by the respondents. Thus, the respondents are now
precluded from raising any objection relying on the doctrine
of the bar under Section 52 of the Transfer of Property Act.
There is no bar in law to waive the claim to seek specific
performance. Hence, the suit agreement does not survive
and is not enforceable. The law of equity warrants dismissal
of the suit. Hence, additional questions of law must be
answered in favour of the appellants.
12. According to the learned counsel for the appellants,
specific performance cannot be granted only because it is
lawful to do so. Plaintiff no. 1 is a money lender, and he
engineered all the events to grab the defendants' property.
The conduct of the plaintiffs does not warrant any
discretionary relief of specific performance. The suit property
is ancestral, and based on the suit agreement allegedly
executed only by the defendants, the plaintiffs would not be
Page no. 10 of 44
1-SA-10-1994
entitled to any discretionary relief of specific performance in
respect of the suit property.
13. To support his submissions, learned counsel for the
appellants relied upon the following decisions:
a) Krishnaji Vinayak Belapurkar Vs. Motilal Magandas
Gujarati1.
b) Vidhyadhar Vs. Manikrao and Another 2.
c) Man Kaur (Dead) by Lrs Vs. Hartar Singh Sangha3.
d) Sunil s/o Ramchandra Mahajan Vs. Sudhir s/o.
Gulabrao Malode4.
e) Santosh Hazari Vs. Purushottam Tiwari (Deceased) by
Lrs5.
f) Satish Kumar Vs. Karan Singh and Another 6.
g) A.C. Arulappan Vs. Smt. Ahalya Naik7
1 1928 SCC Online Bom 200
2 (1999) 3 SCC 573
3 (2010) 10 SCC 512
4 2023 (6) Mh.L.J 133
5 (2001) 3 SCC 179
6 (2016) 2 MLJ 40 (SC)
7 AIR 2001 SCC 2783
Page no. 11 of 44
1-SA-10-1994
Submissions on behalf of respondents nos. 1A to 1F (heirs of
plaintiff no. 1):
14. The cancellation document is not denied by these
respondents, as it was executed by keeping them in the dark.
The cancellation document, however, is not admitted by
these respondents. Therefore, the document is required to
be proved by leading evidence. The cancellation document is
ex facie improbable. The suit was filed by the respondents
for specific performance of the contract executed in favour of
the deceased Ankush, which was dismissed by the trial
court. In an appeal preferred by all the plaintiffs, the District
Court allowed the suit and granted specific performance in
favour of all the plaintiffs. Thus, by keeping plaintiff no. 1 in
the dark, plaintiff nos. 2 to 4 executing the cancellation deed,
which is the very basis of filing a suit for specific
performance, is apparently next to impossible.
15. The cancellation document is allegedly executed by the
defendants (appellants) on one hand and plaintiffs nos. 2, 3
and 4 (respondents nos. 2, 3 and 4) on the other hand.
Plaintiff no. 2, the widow of Ankush, is not alive and plaintiff
Page no. 12 of 44
1-SA-10-1994
nos. 3 and 4 have informed their advocate representing them
before this court that their signatures were obtained by their
mother, plaintiff no. 2, without informing them about the
nature of the document. Hence, it is obvious that the
execution of the cancellation document itself is doubtful. The
cancellation document is not formally proved before this
court by giving an opportunity to the respondents to cross-
examine the witness proving the document. Hence, the
document would not be admissible in evidence. It is
important to note that the wife of plaintiff no. 1 and mother of
deceased Ankush is brought on record as one of the heirs
and legal representatives of plaintiff no. 1. Hence, the
present respondents would inherit the interest of the mother
of deceased Ankush. Hence, these respondents would be
entitled to seek specific performance of the contract
executed by the appellants in favour of the deceased
Ankush.
16. The trial court's findings are not based on a correct
appreciation of the pleadings and evidence. Therefore, the
first appellate court has rightly corrected the errors. All the
factual aspects are admitted by the defendants. The power of
Page no. 13 of 44
1-SA-10-1994
attorney holder of plaintiff no. 1 deposed on his personal
knowledge; hence, the evidence led by the son of plaintiff no.
1 needs to be relied upon in support of the execution of the
suit agreement by the defendants. In the suit agreement, the
defendants claimed to be the exclusive owners. The written
statement states for the first time that there are other co-
sharers. All the procedures were followed, and the suit
agreement was executed before the Sub-Registrar. The
defendants are no strangers to the plaintiffs, and they are
related to defendant no.1. Therefore, equities are in favour of
the plaintiffs, and the discretionary jurisdiction needs to be
exercised in favour of the plaintiffs. In the present case, the
first appellate court has correctly appreciated the pleadings
and evidence to grant the discretionary relief of specific
performance in favour of the plaintiffs. The second appeal
cannot be dealt with on the factual aspects. Therefore, all the
questions of law must be answered in favour of these
respondents.
17. With reference to the additional substantial questions of
law framed, learned counsel for these respondents submitted
that the cancellation document at Exhibit X1 is hit by Section
Page no. 14 of 44
1-SA-10-1994
52 of the Transfer of Property Act. The cancellation
document is executed during the pendency of the present
second appeal. This court, being the jurisdictional court to
decide the second appeal, and the document executed
pending the appeal is in respect of the suit property, which is
an immovable property, becomes directly and specifically in
question in this appeal. Thus, the act of executing the
cancellation deed pertaining to the suit property would
amount to otherwise dealing with it during the pendency of
this appeal by the respondents (plaintiff nos. 2 to 4) in favour
of the appellants (defendants). Hence, the rights of these
respondents (heirs of plaintiff no. 1) are affected. Therefore,
the cancellation document executed and registered without
permission from this court must be discarded as it is hit by
Section 52 of the Transfer of Property Act.
18. The cancellation document, if at all valid, will take effect
subject to the outcome of this second appeal. The
cancellation document at Exhibit X1, if held to be valid, would
amount to respondent nos. 2 to 4 relinquishing their right. If
the cancellation document is valid, the decree would be
sustainable in favour of these respondents. As the document
Page no. 15 of 44
1-SA-10-1994
at Exhibit X1 is hit by Section 52 of the Transfer of Property
Act, the same needs to be ignored, and the suit agreement
would be enforceable. Hence, the additional questions of law
also must be answered in favour of these respondents, and
the second appeal must be dismissed.
Analysis and conclusions:
19. I have carefully perused the pleadings and evidence
on the record. The execution of the registered agreement
dated 27th May 1977 is not disputed. The plaintiffs claim that
it is an agreement for the sale of the suit property in favour of
the deceased Ankush for a total consideration of Rs. 4000/-.
After execution of the agreement, Ankush died; hence, his
father, i.e. plaintiff no.1, his widow, i.e. plaintiff no. 2 and his
children, i.e. plaintiff nos. 2 to 5, filed the suit for specific
performance. The plaintiffs claim to have paid a total amount
of Rs. 3900/- out of the total consideration. However, the
defendants contended that the suit property is their ancestral
joint family property, and neither did they have any authority
to enter into any transaction for its sale, nor did they ever
intended to do so. They contended that plaintiff no. 1 was a
Page no. 16 of 44
1-SA-10-1994
money lender and the amount paid to the defendants was
towards the hand loan given by plaintiff no. 1 to defendant
no.1 from time to time. They denied that the suit agreement
was executed for the sale of the suit property.
20. The trial court dismissed the suit, holding that the
agreement was executed through misrepresentation and was
a sham and bogus document. The trial court accepted the
defendants' contentions that the suit agreement was not an
agreement for sale, but it was executed towards security for
the loan advanced by defendant no. 1. The trial court
considered the undisputed facts regarding the suit filed by
plaintiff no. 1 for recovering loan amount from defendant no.
1, based on a promissory note and another suit filed for
recovery of amount from defendant no. 1 based on the
receipts towards the loan advanced to him. The certified
copies of the judgments and orders of the money decrees
and their execution were produced on record. The fact that
the suit agreement was executed after the suits for recovery
of money were filed was held in support of the defendants'
contentions that the transaction between the parties was
towards the loan amount advanced by plaintiff no. 1 and that
Page no. 17 of 44
1-SA-10-1994
the defendants never intended to sell the suit property to the
plaintiffs by executing the suit agreement in the name of
Ankush.
21. The Trial Court referred to the contradictions in the
evidence of plaintiffs' witnesses regarding payments made
by plaintiff no.1 and the contents of the suit agreement and
held that the agreement was a sham and bogus document
executed by misrepresentation for security towards the loan
advanced by plaintiff no.1. The Trial Court thus held that suit
agreement was not executed by the defendants for sale of
the suit property and they never intended to sell the suit
property. The Trial Court disbelieved the payment receipts
relied upon by the plaintiffs and held that the plaintiffs failed
to prove the payments; hence, they were not entitled to the
alternative prayer for refund and damages.
22. In view of the questions of law framed at the time of
admitting the second appeal, it is necessary to examine the
findings recorded by the first appellate court. The first
appellate court held that the suit agreement is registered,
and the defendants do not dispute its execution. Hence, the
burden was on the defendants to prove that the agreement
Page no. 18 of 44
1-SA-10-1994
was not executed for sale, and the intention of the parties
was to secure the loan amount advanced by plaintiff no.1.
The first appellate court disbelieved the defendants' theory of
a loan transaction between plaintiff no.1 and defendant no. 1
by referring to the pleadings and evidence. The first appellate
court held that the defendants failed to plead and prove the
particulars of the loan transaction, including the actual
amounts of the loan, and the repayment schedule, along with
the interest.
23. The first appellate court held that the document at
Exhibit 40, coupled with the receipts at Exhibits 41 and 42,
along with the oral evidence, proves the execution and
registration of an agreement by the defendants for the sale of
the suit property. After reviewing the oral and documentary
evidence on record, it was concluded that there was no
material to support the theory of misrepresentation as
alleged by the defendants. The first appellate court was of
the view that in the absence of any evidence to prove a
contrary intention of the parties, the contents of the
registered suit agreement proved the intention of the parties
to enter into a transaction of an agreement to sell the suit
Page no. 19 of 44
1-SA-10-1994
property. The first appellate court observed that defendant
no. 1 had mortgaged his another land for Rs. 3000/- by way
of a conditional sale deed. Subsequently, the land was
remortgaged for a higher amount of Rs.15,000/-. Hence, the
first appellate court held that due to an increase in the price
of the land, the defendants were trying to avoid execution of
the sale in terms of the suit agreement. The defendants
failed to reply to the suit notice. Hence, the first appellate
court held that the defendants were not entitled to refuse
performance of their part of the suit agreement. The first
appellate court noted that the suit property was ancestral
joint family property. However, held that if the sisters of
defendant no. 1 or his sons were found entitled to a share in
the suit property, the same could be compensated by giving
them their respective share in other lands. The first appellate
court thus accepted the suit agreement as an agreement to
sell the suit property, and the receipts produced on record at
Exhibits 41 and 42 were accepted as payment towards the
balance of the consideration amount. The first appellate court
therefore decreed the suit for execution of the sale deed in
Page no. 20 of 44
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favour of the plaintiffs by directing the defendants to make
payment of the balance consideration of Rs. 100/-.
24. The plaintiffs pleaded that the suit agreement was
executed for repayment of the joint family debts and for the
education of the children. The defendants pleaded that
plaintiff no.1 got the suit agreement executed by
misrepresentation to secure the loan amount advanced by
plaintiff no.1 to defendant no 1. There is no dispute that
plaintiff no.1 had advanced loans to defendant no. 1 and that
he had also filed suits for recovering the amount. Admittedly,
both the suits for recovery of the loan amount were filed prior
to the execution of the suit agreement. One of the two suits
for recovery of the loan amounts was decreed after execution
of the suit agreement, and another suit was decreed during
the pendency of the present suit for specific performance.
The relevant dates and events surrounding the period of
execution of the suit agreement and the pendency of the suit
would be relevant to determining the third question of law.
The relevant dates and events are as under:
Page no. 21 of 44
1-SA-10-1994
a) 1974: Regular Civil Suit No. 110 of 1974 filed by
plaintiff no. 1 against defendant no. 1 for recovery of
Rs. 3000/-.
b) 1975: Regular Civil Suit No. 232 of 1975 filed by
plaintiff no. 1 against defendant no. 1 for recovery of
Rs. 3450/-.
c) 27th May 1977: A registered agreement (suit
agreement) executed by the defendants in favour of
Ankush (son of plaintiff no. 1) for an amount of Rs.
4000/- for the sale of the suit property. This agreement
is signed by plaintiff no. 1 on behalf of Ankush. This
agreement records that an amount of Rs. 2200/- is
paid by plaintiff no. 1.
d) 26th October 1977: Regular Civil Suit No. 110 of 1974
decreed, and for the recovery of the decretal amount,
the present suit property was attached.
e) 20th September 1978: Plaintiff no. 1 paid an amount of
Rs. 1000/- to defendant no. 1 (receipt at Exhibit 41).
Page no. 22 of 44
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f) 23rd March 1979: Plaintiff no. 1 paid an amount of Rs.
700/- to defendant no. 1 (receipt at exhibit 42).
g) 2nd November 1979: Ankush died.
h) 1st March 1980: Legal notice issued by the plaintiffs for
performance of the suit agreement.
i) 27th March 1980: Present suit for specific performance
filed.
j) 29th April 1983: Plaintiff no. 1 filed Regular Civil Suit
No. 116 of 1983 against defendant no. 1 and one,
Dadasaheb Bhausaheb Jagtap, for an injunction in
respect of the present suit property, i.e. Gat No. 497
and another land bearing Gat No. 1094. In this suit,
plaintiff no. 1 pleaded about advancing the loan
amount to defendant no. 1. He also pleaded that
possession of the present suit property was handed
over to him on 18th February 1981. This suit was
dismissed.
k) 28th September 1987: Present suit dismissed.
Page no. 23 of 44
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l) 5th December 1987: Appeal filed in the district court to
challenge the dismissal of the present suit.
m) 10th August 1988: Regular Civil Suit No. 232 of 1975
was decreed.
25. The trial court has discussed these sequences of
events that occurred up to the decision of the suit and the
pleadings and decisions in the other suits to determine the
nature of the suit agreement. The first appellate court has
emphasised the registration of the suit agreement to accept it
as an agreement for sale. However, in my opinion, if the suit
agreement is viewed in conjunction with the other
transactions between plaintiff no. 1 and defendant no. 1, as
discussed above, it is difficult to accept the suit agreement
independently of these other transactions. Hence, the
reasons recorded by the first appellate court to reverse the
trial court's findings on the nature of the suit agreement are
not based on a correct appreciation of the pleadings and
evidence on record. Hence, the third question of law is
accordingly answered in favour of the appellant by holding
that the suit agreement has to be viewed in conjunction with
Page no. 24 of 44
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and in the context of several money lending transactions
between plaintiff no. 1 and defendant no. 1. Thus, the suit
agreement does not appear to be an agreement independent
of the other money lending transactions and was not an
agreement with an intention to execute an agreement for
sale of the suit property. However, it was an agreement to
secure the loan amount advanced by plaintiff no. 1 to
defendant no. 1, as correctly held by the trial court.
26. The first appellate court framed points for determination
on whether the suit agreement was sham and hollow without
any consideration, and whether the intention was to execute
an agreement for sale or the suit agreement was executed
towards the security of the loan. The first appellate court also
framed a point for determination regarding readiness and
willingness, as well as whether the plaintiffs were entitled to a
decree for specific performance or the return of the earnest
money. The first appellate court emphasised the controversy
as to whether the suit agreement was an agreement for sale
or whether it was executed as a security towards the loan
advanced by plaintiff no. 1 to defendant no. 1.
Page no. 25 of 44
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27. As discussed above, the first appellate court accepted
the suit agreement as an agreement for the sale of the suit
property. However, while granting a decree for specific
performance, the first appellate court did not consider
whether the plaintiffs were entitled to the discretionary relief
as contemplated under Section 20 of the Specific Relief Act,
although it accepted that the suit property was ancestral joint
family property. In my opinion, it was necessary for the first
appellate court to determine whether the plaintiffs would be
entitled to a decree for specific performance of the contract,
which was not signed by the other co-sharers. Defendant no.
2 is the wife of defendant no. 1. Although she signed the suit
agreement, she is not a co-sharer or a co-owner of the suit
property.
28. Once it is not in dispute that the suit property is an
ancestral joint family property; it was necessary for the first
appellate court to examine whether in the absence of,
consent of the other co-sharers and in the absence of any
theory pleaded and proved that the defendants were
authorised to enter into the transaction on behalf of all the
co-sharers the discretion as contemplated under Section 20
Page no. 26 of 44
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of the Specific Relief Act could be exercised in favour of the
plaintiffs. Hence, the first appellate court was required to
frame a proper point for determination, as to whether the
plaintiffs were entitled to the discretionary relief of specific
performance as contemplated under Section 20 of the
Specific Relief Act. Although the plaintiffs pleaded that the
suit agreement was executed for legal necessity to repay
joint family debts and for the education of the children, they
failed to prove that the suit agreement was executed for the
legal necessity of the joint family. The evidence relied upon
by the plaintiffs is with reference to only the loan transactions
between plaintiff no. 1 and defendant no. 1. There is no
material produced on record with reference to any joint family
debts. It is a well-established legal principle that the burden
to prove that the transaction is entered into for the legal
necessity of the joint family is on the purchaser.
29. The first appellate court neither framed any point for
determination nor examined whether the discretionary
jurisdiction under Section 20 of the Specific Relief Act could
be exercised in the facts of the present case. Thus, merely
accepting the suit agreement as an indication of the parties'
Page no. 27 of 44
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intention to enter into a contract for the sale of the suit
property would not be sufficient to grant a decree for specific
performance. Therefore, the decree for specific performance
would stand vitiated for want of determination of the point as
to whether, in the facts of the present case, the plaintiffs
would be entitled to a decree for specific performance of the
contract for sale of an ancestral joint family property. Hence,
the first two questions of law are answered accordingly in
favour of the appellants.
30. Learned counsel for the appellants relied upon the
decisions of the Hon'ble Apex Court in the cases of
Vidyadhar and Man Kaur. In the decision of Vidyadhar, the
Hon'ble Apex Court held that where a party to the suit does
not appear in the witness box and states his own case on
oath and does not offer himself to be cross-examined, a
presumption would arise that the case set up by him is not
correct. This legal principle, as established in the decision of
Vidyadhar, is relied upon in the case of Man Kaur. In the
case of Man Kaur, the Hon'ble Apex Court summarised the
legal position as to who should give evidence regarding
matters involving personal knowledge. It is held that if the
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power of attorney holder has done any act or handled any
transactions in pursuance of the power of attorney granted
by the principal, he may be examined as a witness to prove
those acts or transactions. It is thus held that if the power of
attorney holder alone has personal knowledge of such acts
and transactions and not the principal, the power of attorney
holder shall be examined if those acts and transactions have
to be proved.
31. In the present case, plaintiff no. 1, who signed the
agreement on behalf of Ankush, in whose favour the
agreement was executed, failed to enter the witness box. All
the payments are alleged to have been made by plaintiff no.
1 in furtherance of the suit agreement. However, plaintiff no.
1 failed to enter the witness box and offer himself for cross-
examination. Hence, plaintiff no. 1 not entering into the
witness box is a relevant factor for deciding the nature of the
transaction. Plaintiff no. 1's son, who was examined based
on the power of attorney executed by plaintiff no. 1, cannot
be accepted as sufficient evidence to support the plaintiffs'
contentions regarding the nature of the suit agreement.
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32. The Hon'ble Apex Court, in the case of Santosh Hazari
held in paragraph 15 as under:
" ........Secondly while reversing a finding of fact the
appellate Court must come into close quarters with the
reasoning assigned by the trial Court and then assign its
own reasons for arriving at a different finding. This
would satisfy the Court hearing a further appeal that the
first appellate Court had discharged the duty expected
of it. We need only remind the first appellate Courts of
the additional obligation cast on them by the scheme of
the present section 100 substituted in the Code. The
first appellate Court continues, as before, to be a final
Court of facts; pure findings of fact remain immune from
challenge before the High Court in second appeal. Now
the first appellate Court is also a final Court of law in the
sense that its decision on a question of law even if
erroneous may not be vulnerable before the High Court
in second appeal because the jurisdiction of the High
Court has now ceased to be available to correct the
errors of law or the erroneous findings of the first
appellate Court even on questions of law unless such
question of law be a substantial one".
33. This court, in the decision of Sunil, while dealing with a
prayer for specific performance of an oral agreement,
followed the legal principles settled in the decision of
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Santosh Hazari and held that the first appellate court could
not have given benefit of weaknesses of the defendant to the
plaintiff by ignoring that no cogent and clear evidence was
brought on record by the plaintiff to establish the oral
agreement. Thus, it was held that the reversal of the trial
court's decree based on the weaknesses of the defendant
was not permissible. In the present case, the first appellate
court completely ignored that plaintiff no. 1 failed to enter the
witness box and offer himself for cross-examination. The oral
evidence of plaintiff no.1 would have been relevant as it was
the plaintiffs' case that plaintiff no. 1 had signed the
agreement on behalf of Ankush, and the payments towards
the consideration for sale were also made by plaintiff no. 1.
Thus, the findings recorded by the first appellate court to
reverse the trial court's findings on the nature of the suit
agreement would not be sustainable. Thus, the legal
principles settled in the decision of Santosh Hazari and Sunil
would squarely apply to the arguments made on behalf of the
appellants.
34. The Hon'ble Apex Court in the case of Satish Kumar
relied upon the legal principles settled in the decision of
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Parakunnan Veetil Joseph's Son Mathew Vs Nedumbara
Kuruvila8 and held that specific performance cannot be
ordered if the contract itself suffers from some defect which
makes the contract invalid or unenforceable. It is further held
that the discretion of the court will not be there, even though
the contract is otherwise valid and enforceable. The relevant
paragraph 14 of the decision in the case of Parakunnan
Veetill Joseph's Son Mathew, reads as under:
"14. Section 20 of the Specific Relief Act, 1963 preserves
judicial discretion of courts as to decreeing specific
performance. The court should meticulously consider all facts
and circumstances of the case. The court is not bound to
grant specific performance merely because it is lawful to do
so. The motive behind the litigation should also enter into the
judicial verdict. The court should take care to see that it is not
used as an instrument of oppression to have an unfair
advantage to the plaintiff. The High Court has failed to
consider the motive with which Varghese instituted the suit. It
was instituted because Kuruvila could not get the estate and
Mathew was not prepared to part with it. The sheet anchor of
the suit by Varghese is the agreement for sale Exhibit A-1.
Since Chettiar had waived his rights thereunder, Varghese
as an assignee could not get a better right to enforce that
8 AIR 1987 SC 2328
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agreement. He is, therefore, not entitled to a decree for
specific performance."
emphasis applied by me
35. The Hon'ble Apex Court, in the decision of A. C.
Arulappan, relied upon the legal principles settled in the
decision of Parakunnan Veetil Joseph's Son Mathew and
held that the granting of specific performance is an equitable
relief, and the same is governed by the salutary provisions of
the Specific Relief Act. It is held that these equitable
principles are nicely incorporated in Section 20 of the Act,
and while granting a decree for specific performance, these
guidelines shall be at the forefront of the mind of the court. In
view of these legal principles, the Hon'ble Apex Court
reversed the decree for specific performance by holding that
the plaintiff had been trying to take an unfair advantage over
the defendant and that the circumstances in which the
agreement was executed made it highly probable that the
defendant might not have readily agreed to this contract. The
Hon'ble Apex Court noted the facts of the case where the
defendant was to retire from service and did not have funds
to purchase another house, and thus, to move to a small
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house elsewhere, and with a view to discharging some
debts, the agreement was executed. However, the defendant
was not keeping good health and voluntarily retired from
service. Thus, in these facts, the defendant's contention was
accepted regarding the dispute over the consideration
amount and the failure to obtain the requisite permission
under the Urban Land Ceiling Act, as well as the Income Tax
clearance certificate. Thus, although the execution of the
agreement was excepted, the decree for specific
performance was refused.
36. This court, in the decision of Krishnaji Vinayak
Belapurkar, was dealing with an argument that by virtue of
the compromise, during the pendency of the suit, there was a
transfer of property in favour of the plaintiff by one of the
defendants, which was invalid under Section 52 of the
Transfer of Property Act. This court, in the facts of the case,
held that the compromise partially recognised the title of the
plaintiff to institute the suit for redemption. Hence, assuming
that the compromise effected a transfer of property, it would
not in any way affect the right of the defendants-mortgagees,
and the defendant who compromised with the plaintiff was
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made a plaintiff, and if any amount had been decreed as due
on account of the mortgage, both the plaintiffs and the
transposed defendant would have been bound to pay that
amount. Thus, the rights established by the compromise
between the plaintiff and one of the defendants would in any
event have been subservient to the rights of the defendants-
mortgagees, and would not, in any way, have affected their
right to recover the money on the mortgage. Therefore, it
was held that Section 52 of the Transfer of Property Act
would not apply to the facts of the case.
37. Thus, the legal principles settled in the decisions
discussed above and relevant for deciding the questions of
law in the present case are summarised as below:
a) Merely accepting the suit agreement as an indication of
the parties' intention to enter into a contract for the sale
of the suit property would not be sufficient to grant a
decree for specific performance. Before granting a
decree for specific performance of a contract, it is
necessary to examine whether it is lawful to do so in
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the exercise of the discretionary jurisdiction under
Section 20 of the Specific Relief Act.
b) Where a party to the suit does not appear in the
witness box and states his own case on oath and does
not offer himself to be cross-examined, a presumption
would arise that the case set up by him is not correct. If
the power of attorney holder has done any act or
handled any transactions in pursuance of the power of
attorney granted by the principal, he may be examined
as a witness to prove those acts or transactions. If the
power of attorney holder alone has personal knowledge
of such acts and transactions and not the principal, the
power of attorney holder shall be examined if those
acts and transactions have to be proved.
c) While reversing a finding of fact, the first appellate
Court must come into close quarters with the reasoning
assigned by the trial Court and then assign its own
reasons for arriving at a different finding.
d) Specific performance cannot be ordered if the contract
itself is cancelled or becomes unenforceable. The court
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is not bound to grant specific performance merely
because it is lawful to do so. The grant of specific
performance is an equitable relief, and while granting a
decree for specific performance, the guidelines under
Section 20 of the Specific Relief Act 1963 must be
followed.
e) The principles of Section 52 of the Transfer of Property
Act would not apply if a party entitled to seek specific
performance of a contract relinquishes that right during
the pendency of the suit or appeal, which would not
affect the rights of any other party thereto under any
decree or order which may be made therein.
38. In the present case, the additional substantial
questions of law are framed with reference to the subsequent
event of executing the cancellation document produced on
record at Exhibit X1. Admittedly, the suit agreement was
executed in the name of the deceased, Ankush. The plaintiffs
filed the suit for specific performance on the grounds that
they, being the heirs and legal representatives of the
deceased Ankush, were entitled to seek specific
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performance. Plaintiff no. 1 is the father of the deceased,
Ankush. Plaintiff no. 2 is the widow of deceased Ankush, and
plaintiff nos. 3 to 5 are the children of deceased Ankush and
plaintiff no. 2. Plaintiff nos. 2 to 4, executed and registered a
deed of cancellation of the suit agreement on 23 rd January
2020. Hence, the document of cancellation is brought on
record by way of additional evidence and is admitted in
evidence and marked as Exhibit X1, vide Order dated 27 th
March 2025. Respondent no. 2(plaintiff no. 2), i.e. the widow
of Ankush, expired during the pendency of the second
appeal. The children of respondent no. 2 and deceased
Ankush are already on record in different capacity as
respondent nos. 3 and 4, hence the name of respondent no.
2 was deleted. The name of respondent no. 5 was deleted as
he died, unmarried and issueless.
39. The impugned decree grants specific performance of
the contract executed in favour of Ankush. The suit for
specific performance was filed by plaintiff no. 1, i.e. father of
Ankush, plaintiff no.2, i.e. widow of Ankush and plaintiff nos.
3 to 5, i.e. children of Ankush and plaintiff no. 2. By the
impugned decree, the respondents (all the plaintiffs) are held
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entitled to get the sale deed executed in their favour in terms
of the contract that was executed by Ankush. Respondent
nos. 2 to 5 are the Class-I heirs of deceased Ankush.
However, they executed a registered document and
cancelled the suit agreement. It is pertinent to note that the
mother of Ankush never asked for specific performance of
the contract in her favour on the ground that she, being the
heir of Ankush, was entitled to seek specific performance.
Though plaintiff no. 1, i.e., the father of Ankush, asked for
specific performance, he was not a Class-I heir of the
deceased Ankush. Hence, I do not find any substance in the
arguments made on behalf of respondent nos. 1A to 1F, that
the mother of Ankush and the widow of plaintiff no. 1, who is
brought on record as one of the heirs of plaintiff no. 1
(deceased respondent no.1), would be entitled to seek
specific performance as she would inherit the interest as the
mother of deceased Ankush.
40. None of the respondents filed any affidavit denying the
execution of the cancellation document. In the reply filed by
respondent nos. 1A to 1F, they contended that the
cancellation is by playing fraud and not binding upon them.
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The allegation of fraud is not supported by any material
pleadings. Hence, by a reasoned order dated 27 th March
2025, this court admitted the cancellation document in
evidence and marked it as Exhibit X1. Respondent nos. 3
and 4 are represented through a separate advocate.
However, nothing is argued, raising any objection to the
cancellation document. Thus, except for plaintiff no. 1, the
rest of the plaintiffs have cancelled the suit agreement. Thus,
the additional substantial questions of Law are required to be
determined only with reference to the plaintiff no. 1's right to
seek specific performance of the suit agreement.
41. It is argued on behalf of the heirs and legal
representatives of deceased plaintiff no. 1 that the
cancellation document at Exhibit X1 is hit by the principles of
Section 52 of the Transfer of Property Act. It is argued that
during the pendency of this appeal, the suit property cannot
be transferred or otherwise dealt with by any party, so as to
affect the rights of any other party, thereto under any decree
or order, which may be made therein without leave of the
court. The learned counsel for respondent nos. 1A to 1F
submitted that the decree for specific performance is in
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favour of all the plaintiffs. Hence, respondent nos. 2 to 5
(plaintiff nos. 2 to 5) were not entitled to execute a deed of
cancellation of the suit agreement without the consent of
respondent no. 1 and without seeking leave of the court.
Hence, it is argued on behalf of these respondents that the
deed of cancellation produced at Exhibit X1 should be
disregarded.
42. Admittedly, the suit agreement was in the name of the
deceased Ankush. The plaintiffs sought specific performance
on the ground that they were heirs of the deceased, Ankush.
Respondent nos. 2 to 5 are Class-I heirs of deceased
Ankush. Plaintiff no. 1, being the father of deceased Ankush,
is a Class-II heir. Hence, plaintiff no.1 would not be entitled to
seek specific performance on the ground that he is the heir of
deceased Ankush. The decree for specific performance is
granted in favour of all the plaintiffs because plaintiff nos. 2 to
5 (respondent nos. 2 to 5), along with plaintiff no. 1
(respondent no. 1) made a prayer for specific performance of
the contract.
43. During the pendency of this second appeal,
Respondent nos. 2, 3 and 4 have chosen to resolve the
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dispute and cancelled the suit agreement by executing a
valid deed of cancellation. The deed of cancellation is not
denied by respondent no. 1. Plaintiff nos. 2 to 4, the Class-I
heirs of deceased Ankush, have relinquished their right to
seek specific performance of the contract by executing the
deed of cancellation. Hence, plaintiff, no. 1, would not be
entitled to specific performance of the contract in his
individual capacity. The execution of the deed of
cancellation, therefore, cannot be held to affect the rights of
respondent no. 1 in the suit property.
44. Thus, the legal principles settled in the decision of
Krishnaji Vinayak Belapurkar support the arguments made
on behalf of the appellants. Hence, the document at Exhibit
X1 would not be hit by the principles of Section 52 of The
Transfer of Property Act 1882. By executing the document at
Exhibit X1, respondent nos. 2 to 5 have relinquished their
right to seek specific performance of the agreement executed
in favour of deceased Ankush. Therefore, in view of the
cancellation of the suit agreement by the Class-I heirs of
Ankush, the decree for specific performance would not be
sustainable only in favour of respondent no. 1, i.e. the father
Page no. 42 of 44
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of deceased Ankush. Plaintiff no. 1 has not pleaded and
proved that he is entitled to seek specific performance of the
suit agreement in his individual capacity. Thus, in view of the
cancellation deed at Exhibit XI, the suit agreement would not
be enforceable. Hence, the impugned decree would not
survive. Hence, all the additional substantial questions of law
are answered in favour of the appellants.
45. I have already recorded reasons to hold that the
impugned decree for specific performance is not sustainable
in law by answering all the first three questions of law in
favour of the appellants.
46. Hence, for the reasons recorded above, the second
appeal is allowed by passing the following order;
a) The impugned judgment and decree dated 24 th
August 1993, passed by the learned IVth Additional
District Judge, Satara, in Regular Civil Appeal No.
618 of 1987, is quashed and set aside. Regular Civil
Appeal No. 618 of 1987 is dismissed.
b) The judgment and decree dated 28th September
1987, passed by the learned Civil Judge, Junior
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Division, Wai, in Regular Civil Suit No. 103 of 1980,
is confirmed.
c) The Regular Civil Suit No. 103 of 1980 is
dismissed.
d) A decree be drawn up accordingly.
e) There will be no order as to costs.
(GAURI GODSE, J.)
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