Chander Lal Virmani & Ors. vs Smt. Ram Piari
2014 Latest Caselaw 1942 Del

*             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.

 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

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,

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

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

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/

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

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:-

"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

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."

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

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

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.

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

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.

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

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.
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