Archana Bhutani vs Manju Jain
2008 Latest Caselaw 1948 Del

*                IN THE HIGH COURT OF DELHI

                  Judgment reserved on : September 30, 2008
%                 Judgment delivered on : November 04, 2008


+                      RFA 25/2004


ARCHANA BHUTANI                             ..... Appellant

            Through:   Mr. Sudip Kumar Shrotria, Advocate


                       VERSUS


MANJU JAIN                                  ..... Respondent

            Through:   Nemo

CORAM:

Hon'ble Mr.Justice Pradeep Nandrajog
Hon'ble Mr.Justice J.R. Midha

1. Whether reporters of local papers may be allowed
   to see the judgment?

2. To be referred to the Reporter or not?

3. Whether judgment should be reported in Digest?


: PRADEEP NANDRAJOG, J.

1. On 26.8.1998 an agreement to sell, Ex.PW-1/2, was

executed by Ms.Archana Bhutani, the appellant, in favour of

Ms.Manju Jain, the respondent, pertaining to a portion on the

ground floor together with mezzanine thereon forming part of

plot No.40, Block No.7, G.B.Road, Delhi - 110006. The sale

consideration recorded was Rs.3,00,000/- (Rupees Three Lacs

Only). The agreement records that Ms.Archana Bhutani had

received Rs.1,00,000/- (Rupees One Lac Only) by means of a

cheque and that the balance sum of Rs.2,00,000/- (Rupees

Two Lacs Only) was payable after Ms.Archana Bhutani

obtained a certificate of probate in respect of a will dated

13.4.1990 stated to have been executed by her father

bequeathing the subject property to her and based thereon

the property being mutated in her name in the municipal

records.

2. On 9.2.2000, vide Ex.PW-1/5, proved to be served

upon Ms.Archana Bhutani vide A.D.Card Ex.PWQ-1/7 and postal

receipt in respect thereof being Ex.PW-1/6, Ms.Manju Jain

called upon Ms.Archana Bhutani to obtain a certificate of

probate of the will executed by her father and after completing

the formalities of having the property mutated in her name, to

execute the sale deed.

3. Since Ms.Archana Bhutani did not execute the sale

deed, Ms.Manju Jain filed the suit in question for specific

performance alleging that she was always ready and willing to

pay the balance sale consideration in sum of Rs.2,00,000/-

(Rupees Two Lacs Only) provided Ms.Manju Jain obtained the

certificate of probate and have the property mutated in her

name in the municipal records. Ms.Archana Bhutani

responded to the plaint. She admitted having executed the

agreement to sell, Ex.PW-1/2, but stated that the same was

got prepared by Ms.Manju Jain and she merely signed the

same. She pleaded that the sale consideration agreed to was

Rs.30,00,000/- (Rupees Thirty Lacs Only) and that it was

wrongly mentioned in the agreement to sell that the sale price

was Rs.3,00,000/- (Rupees Three Lacs Only). Thus, she denied

an obligation to sell the subject property for Rs.3,00,000/-

(Rupees Three Lacs Only). She challenged the legality of the

agreement to sell on the plea that the same required

compulsory registration. She also challenged the same on the

plea that she had yet to perfect her title to the property

inasmuch as she had yet to be granted the certificate of

probate and hence pleaded her disability to sell the property

by entering into an agreement to sell.

4. On the pleadings of the parties following 3 issues

were settled on 21.9.2002:-

"(i) Whether the agreement dated 26.8.1998 is

non-est in the eyes of law as alleged in para 4 and 8 of

the preliminary objections of the written statement? OPD

(ii) Whether the plaintiff is entitled to the relief of

specific performance? OPP

(iii) Whether the plaintiff is entitled for

permanent injunction? OPP

(iv) Relief."

5. At the trial, Ms.Manju Jain successfully proved that

she was always ready and willing to pay the balance sale

consideration and acquire title to the suit property and that

Ms.Archana Bhutani was in default by not obtaining the

certificate of probate and getting mutation effected in her

name, the twin condition precedents for the sale to

materialize. Ms.Archana Bhutani failed to sustain the three

pleas raised by her challenging the agreement to sell with the

result the suit filed by Ms.Manju Jain stood decreed vide

judgment and decree dated 7.8.2003.

6. Needless to state, if Ms.Manju Jain proved that she

was ready and willing to perform her obligations under the

contract; namely that she had the means and was willing to

pay Rs.2,00,000/- (Rupees Two Lacs Only) the suit had to be

decreed unless the defence succeeded in respect of issue

No.1.

7. As noted above, the agreement to sell was

questioned on three counts.

8. In respect of the plea raised by Ms.Archana Bhutani

that the sale consideration agreed to was Rs.30,00,000/-

(Rupees Thirty Lacs Only) and that it was wrongly typed in the

agreement to sell that the same was Rs.3,00,000/- (Rupees

Three Lacs Only) and that Ms.Manju Jain had got typed the

agreement to sell, the learned Trial Judge has noted that the

stamp paper on which the agreement to sell was scribed was

purchased in the name of Ms.Archana Bhutani and since she

did not summon stamp vender who sold the stamp paper to

prove that as per his record the same was sold to Ms.Manju

Jain the presumption would be that Ms.Archana Bhutani had

purchased the stamp paper and that Ms.Archana Bhutani had

got scribed the agreement to sell.

9. To prove that the sale consideration was wrongly

recorded in the agreement to sell, Ms.Archana Bhutani cited

her brother, Mr.Arun Bhutani, as her witness who was

examined as DW-1. In his deposition Mr.Arun Bhutani stated

that before his sister signed the agreement to sell it was read

over and while so doing it was noted that the sale

consideration was wrongly mentioned at Rs.3,00,000/- (Rupees

Three Lacs Only) whereas the same was Rs.30,00,000/-

(Rupees Thirty Lacs Only). No satisfactory explanation being

given by Mr.Arun Bhutani as to why the agreement to sell was

not corrected there and then, conclusion drawn by the learned

Trial Judge is that the agreement to sell correctly records the

sale consideration at Rs.3,00,000/- (Rupees Three Lacs Only).

The learned Trial Judge has also brought into aid Sections 91

and 92 of the Evidence Act to hold that no oral evidence can

be led to contradict the terms of a written agreement.

10. Qua the plea that the agreement to sell was void as

the same required compulsory registration the learned Trial

Judge has noted that the agreement to sell is dated 28.6.1998

and that amendments were incorporated in the Stamp Act as

in force in Delhi and relatable provisions requiring registration

of agreements to sell where possession was handed over

having come into effect on 28.3.2001; it has accordingly been

held that at the time the agreement to sell was executed there

was no requirement of the same being compulsorily

registered.

11. The plea that Ms.Archana Bhutani had not acquired

title to the property and hence could not sell the same has

been repelled by the learned Trial Judge holding that on his

death, father of Ms.Archana Bhutani was survived by his wife

Ms.Sujata Bhutani, his daughter Ms.Archana Bhutani and his

son Mr.Arun Bhutani. Noting that the mother and the brother

had witnessed the agreement to sell, Ex.PW-1/2 conclusion

drawn is that the mother and brother acknowledged the sale,

meaning thereby that there was no dispute qua the title to the

suit property and hence Ms.Archana Bhutani was authorized to

represent herself as the owner thereof.

12. Learned counsel for the appellant urged at the

hearing of the appeal that the findings of the learned Trial

Judge pertaining to the issue that the agreed sale

consideration was Rs.3,00,000/- (Rupees Three Lacs Only) and

not Rs.30,00,000/- (Rupees Thirty Lacs Only) counsel urged

that the learned Trial Judge has ignored the explanation

furnished by Mr.Arun Bhutani who stated in his deposition that

when the same was detected before execution it was agreed

that necessary correction would be made but Ms.Manju Jain,

with mala fide intent did not do so. Hence, counsel urged that

it has to be held that the stated sale consideration as recorded

was not the agreed sale consideration. Secondly, counsel

urged that admittedly Ms.Archana Bhutani did not obtain a

certificate of probate of the will of her father and hence it has

to be held that she was not the owner of the subject property.

It was urged that there was no evidence to sustain the finding

that Ms.Manju Jain was ready and willing to pay the balance

sale consideration. Lastly, counsel urged that the agreement

to sell is dated 26.8.1998, notice issued by Ms.Manju Jain,

Ex.PW-1/5 is dated 9.2.2000 and that the suit was filed on

20.9.2001; in the interregnum prices rose and therefore

discretion should not be exercised in favour of Ms.Manju Jain

compelling Ms.Archana Bhutani to execute the sale deed.

13. On the plea of Ms.Manju Jain being ready and

willing to pay the balance sale consideration it would be

enough for us to record that said obligation of Ms.Manju Jain

was contingent upon Ms.Archana Bhutani obtaining a

certificate of probate pertaining to the will 13.4.1990 executed

by her father and based thereon to have the property mutated

in her name. Admittedly, Ms.Archana Bhutani has not done so

till the suit was filed. The fact that Ms.Manju Jain required

Ms.Archana Bhutani to obtain the necessary certificate of

probate and have the property mutated in her name and

thereupon receive the balance sale consideration is good

evidence of Ms.Manju Jain being willing to comply with her

obligations. On the issue of readiness it may be noted that law

does not require the prospective purchaser to prove that

he/she had money jingling in his/her pocket. It is enough to

prove that the party could muster the requisite resources. We

thus hold that the learned Trial Judge is correct in returning a

finding that Ms.Manju Jain has proved her readiness and

willingness to proceed ahead with the sale.

14. The plea that the agreed sale consideration was

Rs.30,00,000/- (Rupees Thirty Lacs Only) and not Rs.3,00,000/-

(Rupees Three Lacs Only) has to be noted and rejected for the

reason the agreement to sell Ex.PW-1/2 records the same as

Rs.3,00,000/- (Rupees Three Lacs Only). That the document

was read over before it was signed by Ms.Archana Bhutani has

been admitted by Mr.Arun Bhutani in his cross examination.

To quote he stated: the defendant came to know about the

discrepancy in Ex.PW-1/2 when she signed the same. The

discrepancy was the value mentioned in the agreement Ex.PW-

1/2 was written as Rs.3 Lakhs (Three Lakhs) instead of Rs.30

Lakhs (Thirty Lakhs). I cannot give the answer on behalf of my

sister (illegible) had made any correction in Ex.PW-1/2 after

she came to know that the sale consideration has been

wrongly mentioned.

15. It has to be noted that Mr.Arun Bhutani never

explained that the correction was not made as Ms.Manju Jain

had agreed to make the necessary corrections and by not

doing so had played a fraud on his sister. Thus, the argument

of learned counsel for the appellant that Mr.Arun Bhutani had

given an explanation is incorrect. Further, it does not stand to

logic and reasoning that a person would not correct a

document if a discrepancy is noted before the same is

executed.

16. The plea that Ms.Archana Bhutani could not have

entered into the agreement to sell as she was not declared to

be the owner of the subject property has to be noted and

rejected for the reason when the agreement to sell dated

26.8.1998 was executed, the probate sought by Ms.Archana

Bhutani of her father's will dated 13.4.1990 had been disposed

of and allowed vide order dated 27.1.1995. The only formality

which was required to be completed by her was to file a

certificate of valuation of the property and deposit stamp

papers of adequate value for the instrument of probate to be

drawn up formally by the Court.

17. Thus, not for the reason given by the learned Trial

Judge we hold that Ms.Archana Bhutani had title to the suit

property.

18. In respect of the reasons given by the learned Trial

Judge, suffice would it be to state that where a person signs as

a witness on a document, it does not mean that he

acknowledges the contents of the document. Animus

Attestendi is different than the animus while executing a

document. Though, on the facts of this case it may be urged

that when Mr.Arun Bhutani and Ms.Sujata Bhutani, the brother

and mother of Ms.Archana Bhutani witnessed the execution of

the agreement to sell they were aware of its contents and

hence acquiesced in Ms.Archana Bhutani acting as the owner

of the property. The reason is, that in his testimony Mr.Arun

Bhutani the brother of Ms.Archana Bhutani has stated that

before the agreement to sell was executed the contents

thereof were read meaning thereby everybody present knew

the contents of the document.

19. The plea that this Court should not exercise

discretion in favour of Ms.Manju Jain was urged on the fact that

the suit was filed at the fag end of the period of limitation and

in the interregnum there was a rise in the price of the

property. Suffice would it be to state that there is no evidence

on record to show that in the interregnum the price of the

property rose. At this stage it may be noted that Ms.Archana

Bhutani had examined as PW-4, a valuer, and attempted to

prove that the value of the subject property was

Rs.30,00,000/- (Rupees Thirty Lacs Only). Said evidence has

to be discounted for the reason once it is held that the

agreement to sell correctly recorded the sale consideration, no

evidence can be led to contradict or vary the same. Secondly,

the valuer sought to justify the valuation with reference to the

property being vacant. The instant property is admittedly

under the tenancy of the husband of Ms.Manju Jain and the

protection of the Delhi Rent Control Act 1957 is available to

the property. Thus, said property would fetch a much lesser

value when sold. Thus, even on said account the valuation

report sought to be proved by PW-4 is of no use.

20. In the decision reported as AIR 1993 SC 1742,

(1993) 1 SCC 537 Smt. Chand Rani by LRs. Vs. Smt. Kamal

Rani (Deceased) by LRs in para 19, it was observed as under:-

"19. It is a well-accepted principle that in the case of sale of immovable property, time is never regarded as the essence of the contract. In fact, there is a presumption against time being the essence of the contract. This principle is not in any way different from that obtainable in England. Under the law of equity which governs the rights of the parties in the case of specific performance of contract to sell real estate, law looks not at the letter but at the substance of the agreement. It has to be ascertained whether under the terms of the contract the parties named a specific time within which completion was to take place, really and in substance it was intended that it should be completed within a reasonable time. An intention to make time the essence of the contract must be expressed in unequivocal language."

21. In the decision reported as AIR 2000 SC 2408,

(2000) 6 SCC 420 Motilal JainVs.Smt. Ramdasi Devi & Ors. In

para 6, it was observed as under:-

"It may be apt to bear in mind the following aspects of delay which are relevant in a case of specific performance of contract for sale of immovable property:

(i) Delay running beyond the period prescribed under the Limitation Act; (ii) Delay in cases where though the suit is within the period of limitation, yet: (a) due to delay the third parties have acquired rights in the subject-matter of suit; (b) in the facts and circumstances of the case, delay may give rise to plea of waiver or otherwise it will be inequitable assumption with regard to cause of action.

Ext. 2 was executed on February 20, 1977 and under it the sale deed was to be executed on or before July, 19, 1977. The last notice was issued on November 26, 1978 and from that date the suit was filed only after nine months and not after more than a year as noted by the High Court. Therefore on the facts of this case the ground of delay cannot be invoked to deny relief to the plaintiff."

22. We are thus not impressed that case has been

made out not to exercise discretion in favour of Ms.Manju Jain.

23. We find no merits in the appeal.

24. The appeal is dismissed with costs.

PRADEEP NANDRAJOG, J.

J.R. MIDHA, J.

November 04, 2008 mm