Jharkhand High Court
Sobhagmal Jain (Deleted Vide Order ... vs Uday Lal Sahu @ Uday Kumar Sahu Son Of Late ... on 25 August, 2025
Author: Anubha Rawat Choudhary
Bench: Anubha Rawat Choudhary
2025:JHHC:25223
IN THE HIGH COURT OF JHARKHAND AT RANCHI
S.A. No. 78 of 1999 (R)
1. Sobhagmal Jain (deleted vide order dated 06.06.2011)
1(a) Kailash Chand Jain
1(b) Kajormal Jain (deleted vide order dated 04.08.2025)
1(b) (1) Manju Jain aged about 67 years, widow of the late Kajor Mal
Jain
1(b) (2) Neha Jain, aged about 41 years, daughter of late Kajor Mal
Jain
1(b) (3) Aniket Jain, aged about 36 years, S/o Kajor Mal Jain
All resident of village Mahabir Mandir Chowk, Post Boddam Bazar,
P.S. Sadar Hazaribag, Dist. Hazaribag, Jharkhand
1(c) Bhagchand Jain
1(d) Santosh Kumar Jain
1(e) Nirmal Kumar Jain
1(f) Sunil Kumar Jain
1(g) Manoj Kumar Jain --- All sons of late Sobhagmal Jain
1(h) Rashmi Jain W/o Kamal Nain Jain and daughter of Sobhagmal
Jain, all residents of Mohalla Bodam Bazar, P.O., P.S. & District -
Hazaribagh ... ... Plaintiff/respondent/appellants
Versus
1. Uday Lal Sahu @ Uday Kumar Sahu son of Late Asharfi Lal Sahu
2. Smt. Chandrakanta Devi daughter of Shri Achit Lal Sahu wife of
Asharfi Lal Sahu (deleted vide order dated 06.05.2002)
Both residents of Mohalla Boddom Bazar, Golapatti Hazaribagh,
P.O. and P.S. Hazaribagh, Dist. Hazaribagh
Defendants/appellants/Respondents
3. Md. Ikram
4. Md. Ashar @ Md. Ashar
5. Md. Ibrar
6. Md. Ikrar son of late Inamne Haque
7. Jaimun Khatoon wife of Hafiz and daughter of Inamne Haque
All residents of Pugmal Hazaribagh
8. Sahida Khatoon wife of Ikram daughter of Late Imamul Haque
village Sibla District Chatra
9. Jubeda Khatoon wife of Md. Shfique @ Saquib and daughter of Late
Inamul Haque village Amar Nagar, District Nawadah
10.Hushn Ara wife of Late Md. Basir, Deceased
11.Md. Arif
12.Md. Ashraf
13.Md. Suhail
14.Md. Javed, 13 and 14 sons of late Md. Basir
15.Sakila
16.Nahid
17.Shana Prawin daughters of late Md. Basir
18.Saqukta Pravir wife of late Md. Imamul Haque, Pugmul, District
Hazaribagh
1
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Nos. 10 to 17 residents of Mohalla Hindpiri, P.S. Lower Bazar,
District Ranchi
19.Akhtar Hussain
20.Md. Manjoor both sons of late Fakir Mohammad
21.Nazima Khatoon wife of Serajuddin resident of Katkamsundi Road,
P.O. P.S. District Hazaribagh
22.Nawin Kumar Sahu
23.Om Prakash Sahu
24.Bina Kumari Sahu minor son and daughter of late Ashraf Lal Sahu,
through Shri Kishori Mohan Prasad Advocate G.A.L resident of
Boddom Bazar, Gola Patti, Hazaribagh
... Proforma/defendants/respondents
---
CORAM: HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
---
For the Appellants 1 (c) : Mr. R.N Sahay, Sr. Advocate
: Mr. Kirti Vardhan, Advocate
: Mr. Yashvardhan, Advocate
For the Appellants : Mr. Rahul Kr. Gupta, Advocate
: Ms. Swati Singh, Advocate
: Mr. Surya Prakash, Advocate
: Mr. Rakesh Kr. Singh, Advocate
For the Respondents : Mr. Ayush Aditya, Advocate
---
Lastly heard on 18.08.2025 Pronounced on 25.08.2025
This second appeal has been filed by the appellants (plaintiff)
against the judgment and decree dated 31.07.1999 (decree signed on
18.08.1999) passed by the learned 2nd Additional District Judge,
Hazaribagh, allowing the 1st appeal numbered as T.A. No.27/88 and
reversing the judgment and decree dated 11.03.1988 passed in T.S.
No.43 of 1981 by the learned Sub-Judge IV, Hazaribagh.
2. This second appeal arises out of a suit seeking specific
performance of a contract with respect to the property described in
Schedule A of the plaint.
3. The substantial questions of law for consideration are as
follows:-
a. Whether the Court of appeal below erred in law in
holding that defendants no.2 and 3 had neither actual
nor constructive notice of the agreement for sale in
favour of the plaintiff?
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b. Whether the part consideration paid in connection with
Exhibit A/1 and also Exhibit A after filing of the written
statement in the present suit/previous suit would
amount to payment in good faith so as to entitle the
defendant nos.2 and 3 for the benefit of Section 19 (b)
of the Specific Relief Act?
c. Whether the plaintiff satisfies the requirement of
readiness and willingness to perform his part of the
contract in terms of section 16(c) of the Specific Relief
Act of 1963 and whether the learned 1st appellate court
is justified in not entering into this question merely on
the ground that the vendor had already transferred the
suit property to defendant no. 2 and 3?
4. The suit was filed for a decree of specific performance of
contract dated 05.08.1979 (Exhibit-5) between the plaintiff and the
original defendant no. 1 and also for a direction upon the other
defendants to join in the conveyance. The defendant nos. 2 and 3 are
the purchasers of the suit property vide registered sale deeds dated
25.01.1980 (Exhibit- A) and 25.01.1980 (Exhibit-A/1) for a
consideration amount of 20,000/- and 25,000/- (total 45, 000/-) by the
defendant no.1 after alleged agreement of sale dated 05.08.1979
(Exhibit-5). As per the agreement of sale dated 05.08.1979 (Exhibit-5)
Rs. 1000/- was paid at the time of agreement out of total consideration
amount of Rs. 40,000/- and the balance amount was to be paid within 2
years from the date of the agreement failing which it was open to the
plaintiff to get it executed through the process of law. The sale deeds
dated 25.01.1980 (Exhibit- A) and 25.01.1980 (Exhibit-A/1) were
executed by the defendant no.1 in favour of the defendant no.2 and 3
much prior to expiry of a period of 2 years from agreement of sale dated
05.08.1979 (Exhibit-5). However, before filing of the suit seeking
specific performance of contract, the plaintiff issued legal notice dated
27.06.1980 (Exhibit-1) to the defendant no.1, its postal receipt is
Exhibit-2 and its acknowledgement is Exhibit- 3, but the defendant no.1
did not respond to the legal notice and ultimately the suit was filed
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seeking specific performance of the agreement of sale dated 05.08.1979
(Exhibit-5). The plaintiff averred readiness and willingness to perform
his part of the contract to pay the balance amount not only in the legal
notice (Exhibit-1) but also in the plaint. The averment in the plaint with
regard to readiness and willingness of the plaintiff is in paragraphs
6,7,8,9 and 10 which are quoted as under:
"6. That the defendant No. 1, in her extreme eagerness
to dispose of her remaining properties approached
many persons in the locality but failed to get a suitable
bidder. Ultimately again she turned to the Plaintiff and
renewed her offer to sell her remaining property of plot
No. 597 to him, but for a higher amount, which by
negotiation was finally fixed at Rs.40,000/-. By a
stamped agreement dated 5th August, 1979, duly
executed by the defendant No. 1, the defendant
contracted to sell to the Plaintiff the remaining portion
of the building, structures and lands shown as Block 'C'
and 'D' and 'E' in the enclosed trace map and which is
fully described in the Schedule 'A' to this Plaint, which
be considered as part hereof. The defendant No. 1,
however gave out that she required some time to
deliver vacant possession to the Plaintiff of the entire
Schedule 'A' properties and accordingly she stipulated
that the sale deed was to be executed within two years
from the date of agreement, by which time, she would
be in a position to move out. In part performance of the
agreement, Plaintiff had paid and advanced an amount
of Rs. 1,000/-(One thousand) agreeing to pay the
balance at any time to defendant No. 1, whenever she
was to execute and register the sale deed. The
defendant No. 1 on her turn with a show of good faith
and in part performance of her contract had allowed
the Plaintiff to occupy the portion (Marked "X"
measuring about 7' x 7' of Block 'D') and allowed to
raise walls and extend his godown existing in Block 'A'
to that part of Block 'D' besides allowing the Plaintiff
to continue to enjoy the use of the "Galli" (Block "E").
7. That the plaintiff has always been, and still is, ready
and willing to perform the agreement on his part, of
which the defendant has and had notice.
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8. That by a notice dated 27.6.1980 sent under
Registered A/D Post, served on 30.6.1980, the
Plaintiff and through his lawyer Sri S.S. Singh
Advocate, Hazaribagh applied to the defendant No. 1
(now dead) specifically to perform the agreement on
her part, but the defendant has not done so.
9. That the Plaintiff was surprised to learn from the
Hazaribagh Municipality that the defendant No. 2 and
3 despite having full knowledge and informations and
notice of the prior agreement for sale subsisting
between the Plaintiff and defendant No. 1, got created
two sale deeds dtd. 25.1.1980 by defendant No.1. One
sale deed in favour of each of defendants 2 and 3,
wherein the names of the Plaintiff are mentioned on the
boundaries of alleged demised property but the same
contain incorrect and unreal dimensions. These sale
deeds are out and out fraudulent and collusive,
intended to injure the right of the Plaintiff and create
complication for him to purchase the Schedule 'A'
properties under the terms of the agreement dated 5th
August, 1979, about which the defendants 2 and 3 and
all the sons of the defendant No. 1 had full knowledge
and notice.
10. That the malafide of the defendants 2 and 3 in
obtaining the above two documents, with a view to
injure the Plaintiff in enforcing his rights under the
agreement, would be apparent from the following:
(i) That these defendants had both actual and
constructive notice of the pre-existing agreement
between the Plaintiff and defendant No. 1 in regard to
the intended sale.
(ii) That it was well known to the defendants 2 and
3 and all other persons of the locality that the Plaintiff
was peacefully enjoying the use of the "Galli" which
provided the only link, approach in between the two
blocks 'A' and 'B'.
(iii) That the Plaintiff was from before in physical
possession of 7' x 7' of Block 'D' on which he had
extended his godown from Block 'A'
(iv) That the dimensions got mentioned in the above
two documents were not based on any actual
measurement, but were made deliberately to include
substantial portions of Block 'A' and 'B' which
undisputably and admittedly belonged to the Plaintiff,
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his wife and brother, with intent to create
complication for the Plaintiff in purchasing the Block
'C' and 'D' and 'E' property under the agreement.
(v) That the negotiations leading to the impugned
deed Nos. 759 and 760 dated 25.1.80 were conducted
in an air of mysterious secrecy, and in particular,
avoiding leakage of any possible information to the
Plaintiff and his family, who were admittedly the title
holders in possession of the major part of the Plot.
(vi) That the two of the sons of defendant No. 1,
namely Enamul Haque and Manjoor Ali, were
amongst witnesses as identifying and attesting the
execution of the deed of agreement dated 5.8.1979 by
the defendant No.1, and yet these two amongst others
appear to have figured as witnesses in the above
impugned sale deeds dated 25.1.1980.
(vii) The defendant No. 1 in her written-
Statement in T.S. No. 69 of 1980 of the Court of the
Munsif, (as defendant No.3 therein) has stuck to her
commitment for transfer of Block 'C' and 'D'
properties to the Plaintiff under Agreement dated
5.8.1979 and she was further stated about the
misrepresentations fraud practiced upon her by the
other defendants in collusion with her sons. For
details, the said written statement is being referred to.
(viii) That the impugned sale deeds themselves
prima facie indicate non-payment of the stipulated
consideration.
(ix) That other patent and latent circumstances will
go to show that the alleged purchase by defendant
No.2 and 3 dated 25.1.1980 are not bona fide."
11. The defendant nos.2 and 3 in their written statement have given
para wise reply to the aforesaid contentions made in the plaint at
paragraphs 6, 7, 8, 9 and 10 which are quoted as under:
"6. That the statement made in para 6 of the plaint has
been made deliberately after the consultations to suit
his purpose. The statements made are new and made
for the first time. They were never pleaded in T.S. no.
69/1980 in the court of the Munsiff, Hazaribagh. The
statements are false and they are denied and the
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constructions alleged to have been made in part
performance of the agreement is denied. The only
purpose for the story propounded in this para of the
plaint is to get precedence over the sale deed made in
favour of the defendants no. 2 and 3. There is no truth
in the statement made in the said two paras. The
extension of the godown and raising of wall is also
false.
7. The defendants had no knowledge of any notice dated
27.06.1980 as alleged in paragraphs 7 and 8 of the
plaint.
8. That so far the statement made in para 9 of the plaint
as to how the plaintiff came to know about the sale
deeds in favour of these defendants 2 and 3, these
defendants are not in a position either to affirm or deny
the same and put the plaintiff to the strict proof of the
same. The hard fact is that the defendant no. 3 sold to
these defendants portions of the plot no. 597 as covered
by the two Registered sale deeds, both dated 25.1.80,
one in favour of the defendant no. 2 and the other in
favour of defendant no. 3 and put them into the
possession thereof. These defendants began to reside
and occupy the portion from 21.2.80. But it is all false
to say that the defendant no. 1 had fraudulently and in
collusion with these defendants have created the said
two sale deeds. These sale deeds are genuine and for
consideration. These defendants had no knowledge of
the alleged agreement mentioned in the earlier
paragraphs of the plaint. As a matter of fact, there was
no agreement and if there is any, it must have been anti
dated. It is piece of forgery. The statement regarding
the dimensions of the properties sold to these
defendants are not correct and the reasons given for
discarding the said deeds are not correct.
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9. That the statement made in para 10 and sub-para (i)
to (ix) of the plaint have been made only to suit the
purpose of the plaintiff. It was not correct to say that
the plaintiff is in physical possession of 7' x 7' of block
D and enjoyment of the passage. This passage is the
exclusive property of these defendants and is used by
them only. The sale deeds in favour of these defendants
are all genuine documents and for consideration. It is
false to say that both these sale deeds are sham and
colourable transactions and it was equally false to say
that they have been brought into existence either by
fraud upon the defendants no. 1 or in collusion with
her. It was also not correct to say that these defendants
had knowledge of the sale-deeds dated 7.12.73 and
17.5.76 and of the agreement dated 5.8.79. It has
always been stated that this agreement is a forgery and
has been antidated. The written statement of defendant
no. 1 of T. S. no. 69 of 1980 of the court of the Munsiff,
Hazaribagh has been managed subsequent to the
institution of the suit and drafted at the instance of the
plaintiff."
12. Thus, the defendant nos. 2 and 3 alleged that the agreement dated
05.08.1979 was fraudulent and they had no knowledge about the
agreement. It was contended that the written statement of defendant
no.1 in T.S. No.69 of 1980, in the court of the Munsiff, Hazaribagh, was
managed subsequent to the institution of the suit and drafted at the
instance of the plaintiff. The written statement did not deny readiness
and willingness of the plaintiff to pay the balance consideration amount.
The proceeding was ex-parte against the defendant no.1.
13. On the basis of the plaint and written statement filed by
defendant nos.2 and 3, the following issues were framed by the learned
trial court:
1. Is the suit maintainable as framed?
2. Has the plaintiff got cause of action for the suit?
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3. Is the suit properly valued?
4. Is the agreement dated 5.8.79, genuine and valid
document?
5. Have defendants notice about agreement between the
plaintiff and defendant no.1
6. Is the plaintiff entitled to get the decree as prayed for?
7. What any other relief or reliefs, the plaintiff is entitled?"
14. In the suit, defendant no.1 did not appear to contest the case.
Neither the defendant no.1 filed written statement nor examined herself
as a witness.
15. Both oral and documentary evidences were adduced on behalf of
the plaintiff and the defendant nos.2 and 3. The plaintiff had examined
as many as 22 witnesses and the plaintiff was examined as P.W. 19.
16. On behalf of the defendants, altogether 13 witnesses were
examined. D.W. 11 was the defendant no.2 and the defendant no.3 was
not examined although admittedly she was alive at the relevant point of
time and she is the wife of defendant no.2.
17. The learned trial court inter alia recorded the plot no.597
belonged to defendant no.1 and portions of the said plot were sold to
the plaintiff and also that there was an agreement for reconveyance of
block B property but such agreement was not the subject matter of the
suit as the defendant nos.2 and 3 had purchased the property in Blocks
C and D of the sketch map and it was an admitted fact that the plaintiff
was in possession of Blocks A and B although the dimensions were in
dispute. It was also admitted fact that defendant no.1 had left the entire
plot number 597 and she was not in possession of any portion of the
same. The learned trial court also recorded that it was also admitted fact
that defendant nos.2 and 3 got possession of the purchased land on
different dates and after execution of the sale deed, entire amount of the
consideration was not paid at that time to defendant no.1. It was also an
admitted fact that there was a Title Suit No.69/80 in the court of
Munsiff, Hazaribagh seeking injunction which was filed by the plaintiff
and there was an order of maintain status quo in the suit. It was further
admitted fact that defendant no.1 appeared in Title Suit No.69/80 in the
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court of Munsiff, Hazaribagh and filed a written statement but the
defendant nos.2 and 3 have alleged that this written statement filed on
19.07.1980 was filed in collusion with the plaintiff.
18. The exhibit - 1 is the office copy of the pleader's notice and
exhibit 2 is the postal receipt, exhibit - 3 acknowledgement, exhibit 4
series are the municipal receipts and exhibit 5 is the agreement involved
in the present case, which is dated 05.08.1979 executed by Bibi Saliman
in favour of the plaintiff and exhibit 5/A is another agreement executed
by the plaintiff in favour of Bibi Saliman. Exhibit 6 is the registered
sale deed executed by Bibi Saliman in favour of plaintiff with respect
to portion of plot no.597. Exhibit 6/A is the registered sale deed
executed by Bibi Saliman in favour of Bhawri Devi and Hansraj Jain
with respect to 'Block A' property. The learned trial court reveals that
apart from other exhibits including the exhibits of finger print expert,
exhibit 14 is written statement filed by defendant no.1 Bibi Saliman in
Title Suit No.69 of 1980 in the court of Munsiff, Hazaribagh on
19.07.1980; exhibit 15 is the vakalatnama filed in the court of
Hazaribagh by Bibi Saliman.
19. The defendants also produced number of documentary evidences
including Exhibit A, which is a registered sale deed by defendant no.1
in favour of defendant no.2 on 25.01.1980. Exhibit A/1 is the registered
sale deed executed by defendant no.1 in favour of defendant no.3
which is dated 25.01.1980. Exhibit B is the receipt for payment
executed by defendant no.1 in favour of defendant no.2 dated
21.02.1980. Exhibit B/1 is receipt dated 07.04.1981, B/2 is the receipt
dated 11.04.1981, B/3 is the receipt dated 12.07.1981, B/4 is the receipt
dated 14.09.1981.
20. Issue no.4 was taken as the main issue. It was recorded that Title
Suit No.69 of 1980 was filed by the plaintiff in the court of Munsiff,
Hazaribagh seeking injunction against defendant nos.1, 2 and 3.
Meaning thereby, all the persons were parties in Title Suit No.69 of
1980. In the said case, the written statement was filed by defendant no.1
vide Exhibit 14 whereby she accepted the agreement between the
plaintiff and herself and also stated that her two sons got sale deeds
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fraudulently executed in favour of defendant nos.2 and 3, although she
had no intention to sell the land to defendant nos.2 and 3. This statement
of defendant no.1 was challenged by the defendant nos.2 and 3 in the
present suit by stating that the written statement by defendant no.1 was
collusive.
21. The learned trial court considered the materials rejected the plea
of the defendant nos.2 and 3 that the agreement dated 05.08.1979
(exhibit-5) was forged and fabricated and also rejected the plea of the
defendant nos. 2 and 3 that the written statement filed in Title Suit
No.69 of 1980 was collusive. The trial court recorded that the
agreement dated 05.08.1979 (exhibit-5) was attested by her two sons,
who made endorsement regarding payment of Rs.1,000/- out of
Rs.40,000/- and the agreement was also attested by an Advocate.
22. The learned court also took into consideration that in the suit for
injunction in the year 1980, defendant no.1 had filed a written statement
and admitted that she had no intention to execute the sale deed in favour
of defendant nos.2 and 3. The learned trial court took into consideration
the previous statement of defendant no.1 in Title Suit No.69 of 1980 in
which she had admitted about the execution of agreement with the
plaintiff. The learned court ultimately held that the agreement with the
plaintiff (exhibit 5) was executed between the plaintiff and defendant
no.1.
23. The learned court also took into consideration that D.W. 11 i.e.
defendant no.2 has stated in his evidence that he had asked defendant
no.1 and her sons to give evidence in the court but they did not attend
the court. The learned trial court ultimately held that the plaintiff was
able to prove his case and the issue no.4 was decided in favour of the
plaintiff.
24. While deciding the issue no.5, the learned trial court took into
consideration the conduct of the respective parties and observed that
P.W. 19 i.e. plaintiff himself had stated that all the persons of the
locality had knowledge about his agreement and in spite of knowledge
of agreement, the defendant nos.2 and 3 got the sale deed from
defendant no.1. The learned trial court was of the view that D.W.11 had
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not disclosed about his purchase; he made no inquiry about the land; he
has also stated that he asked his wife not to disclose about the sale deed.
These circumstances were used against defendant nos.2 and 3 and the
learned trial court held that such conduct of the D.W.11 supports the
case of the plaintiff that defendant nos.2 and 3 had full knowledge about
the previous agreement between plaintiff and defendant no.1. The
learned trial court considered another circumstance in support of the
case of the plaintiff that the defendant nos.2 and 3 had not made full
payment of the consideration amount at the time of execution of the sale
deed and on the date of execution only Rs.20,000/- i.e. Rs.10,000/- for
each sale deed were paid and they were not put in possession over the
land on that day. At the time of execution of the sale deed, defendant
no.1 was in possession of the land and house and according to the case
of the defendant nos.2 and 3, they have got the possession after 25 days
over one portion of the house when they made payment of the remaining
consideration amount on different dates they were put in possession of
the entire house. This circumstance was also taken into consideration
by the learned trial court and was held to be in favour of the plaintiff
that the sale deed obtained by defendant nos.2 and 3 had not been
obtained after due payment of the consideration amount.
25. The learned trial court though did not frame any issue with regard
to readiness and willingness to pay, but has certainly given a finding
on the basis of evidence of P.W. 19 (plaintiff) by holding that when the
plaintiff was ready to perform his part of contract and was ready to pay
remaining amount of consideration, then why he should be debarred
from his right. The learned trial court also recorded that on the basis of
the agreement, the plaintiff was put in possession of 'Block X' land and
he had extended his godown over it and he was also using the passage
'block E' for entering into 'Block B' portion and 'Block B' portion is
only connected through 'Block E' passage. The learned court observed
that 'Blocks C and D' are in possession of defendant nos.2 and 3, but
the plaintiff has got right to get sale deed executed for it and therefore
defendant nos.2 and 3 cannot be allowed to change the nature of the
'Blocks C and D'. Ultimately, the learned trial court directed the
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defendants to execute the sale deed in favour of the plaintiff within a
period of 60 days failing which the sale deed will be executed through
the process of court.
26. Thus, the learned trial court held that the agreement dated
05.08.1979 genuine and valid document and the defendant nos.2 and 3
had notice about agreement between the plaintiff and defendant no.1
and inspite of such notice, they purchased the suit property and the trial
court decreed the suit.
27. The learned trial court decreed the suit and immediately
thereafter and within the time granted by the court, the plaintiff
deposited Rs. 39,000/- in the court which is still lying with the court as
the judgement and decree was reversed by the 1st appellate court.
The 1st appeal
28. The appeal was filed by the legal heirs and successors of the
defendant nos.2 and 3.
29. It further appears that against the trial court judgment dated
11.03.1988 passed in the title suit, Title Appeal No.27 of 1988 was filed
which was disposed of vide judgment dated 6 th March 1991 by way of
remand. The order of remand was challenged before this court in M.A
No.300 of 1991 (R) and the order of remand was set-aside and the
appeal was to be decided afresh on the basis of the materials available
on record. The fresh judgement is impugned in this second appeal which
is a judgement of reversal.
30. Fresh judgment was passed by the learned 1st appellate court on
31.07.1999 and following points of determination were decided: -
"(I) Whether the document dated 5.8.1979 was rightly held
to be a genuine document.
(II) Whether the learned court below had found sufficient
evidence to hold that the defendant/appellants had actual
or constructive notice of the agreement.
(III) Whether the learned court had failed to take into
consideration that the defendant/appellants had been able
to prove their title and possession over the suit premises.
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(IV) Whether the decree was nullity on the ground that it
was passed against a dead person.
(V) Whether the suit was barred by order 2 rule 2 C. P.C.
(VI) Whether agreement purported to be an agreement of
sale was a contract or mere undertaking.
(VII) Whether the judgment and decree passed in
T.S.43/81 was fit to be set aside or interfered with on any
other ground."
31. The learned 1st appellate court while deciding the point of
determination no. (I) held that the agreement dated 05.08.1979 was
rightly held to be a genuine document by the learned trial court. VIth
point of determination was also decided against the defendants by
holding that the agreement cannot be said to not enforceable. This
finding has attained finality.
32. The point of determination no.(II) regarding previous knowledge
of the agreement in terms of Section 19 was considered by the learned
1st appellate court vide paragraph 16. The learned court recorded that it
has come during the trial that defendant no.1 was in possession of the
suit house and so it was sufficient that the defendant nos.2 and 3 did not
make any further enquiry about other occupants of other portions of the
house because it was not required to do so. The learned 1st appellate
court referred to a judgement passed by Hon'ble Patna High Court
reported in 1968 BLJR 28 and observed that it has been held in the said
judgment that purchaser is not bound to make inquiry about the
previous contract from every tenant occupying a portion of the house
and enquire from owner himself occupying a portion of the house is
sufficient. Reliance was also placed on the judgement passed by
Hon'ble Patna High Court reported in AIR 1987 Pat 5 and it was
observed that it has been held that principle of constructive notice as
incorporated in explanation II of Section 3 of the Transfer of Property
Act cannot be extended to a case in which the person basing his claim
on the basis of prior agreement is in possession of only a fraction of the
suit property. The learned 1st appellate court recorded that in the present
case, the question of constructive notice to the defendants of prior
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agreement was not substantiated by cogent evidence and his plea that
because the owner was in possession of the disputed property, he relied
upon her and her sons that the suit property belonged to them and the
learned court held that there was no duty of making more inquiry
regarding their possession.
With regard to deferred payment as per sale deed exhibits- A and A/1,
the learned 1st appellate court held that in a case of transfer of
immovable property registration of the document and delivery of
document to the purchaser is sufficient compliance of sale and the sale
is complete as soon as the document is delivered and even if there is
stipulation that part of consideration money is to be paid later on that
will not cause any hindrance in passing title to the purchaser. It was held
that actual or constructive notice of previous agreement could not
therefore be imputed to the defendants as the defendants were not
proved to have actual or constructive notice of the earlier agreement and
title through registered deed was transferred to them through a legal
document. The decree was not enforceable against the heirs of the
defendant no.1 as they had no right, title and interest in the suit property.
The plea of readiness and willingness on the part of the
plaintiff/respondent to perform his part of the contract had become
immaterial as the vendor had transferred her property much before the
suit had been instituted and so had no right, title and interest in the suit
property. The defendants were protected under provision of exception
contained in section 19 (b) of Specific Relief Act, the suit could not
have been decided against them nor it would have decreed against non-
contesting defendants as they had transferred their title to the
defendants prior to institution of the suit and also because no relief for
return of money was an alternative relief was sought for.
33. While considering the point of determination nos. (III) along
with (I), (II) and (VII), the learned court did not disturb the finding of
the learned trial court that the plaintiff was in possession of a part of the
suit premises but recorded that this would not give protection under
explanation II of Section 3 of the Transfer of Property Act.
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34. The learned 1st appellate court decided other points of
determination against the defendants with which this court is not
concerned.
Arguments of the appellants (plaintiff)
35. The learned counsel has submitted that in paragraph 7 of the
plaint; a plea was raised that the plaintiff was ready and willing to
perform his part of the contract but the defendant no. 1 with whom the
agreement was entered into i.e. Exhibit-5 never appeared before the
court nor filed any written statement and at any point of time, she did
not participate in the proceedings. The learned counsel has submitted
that upon the death of defendant no. 1, she was substituted and written
statement was filed on behalf of the minor legal heirs through the
guardian but again no objection with regard to the readiness and
willingness was taken. The learned counsel has also submitted that so
far as written statement filed by the defendant nos. 2 and 3 is concerned,
they also did not dispute the statement made by the plaintiff that the
plaintiff was ready and willing to perform his part of the agreement.
The learned counsel has submitted that since the readiness and
willingness to perform the part of the contract on the part of the plaintiff
was not in dispute, neither any issue was framed by the learned trial
court, nor any such issue was framed by the learned 1st appellate court
and the substantial question of law framed by this Court is only required
to be answered.
36. The suit property was sold to the defendant nos. 2 and 3 vide
exhibit- A and A/1 for a consideration amount of Rs. 20,000/- and
25,000/- respectively and at the time of execution of the sale deed on
10,000/- each was paid. The last payment of Rs.5,000/- in connection
with Exhibit A/1 by Chandra Kanta Devi was made on 14.09.1981
which was after the filing of the written statement in this case on
07.09.1981 and the concerned document is Exhibit B/4 relating to the
last payment Rs.5,000/-. So far as Exhibit A is concerned, the last
payment of Rs.5,000/- is dated 07.04.1981 and the concerned document
is Exhibit B/1 and this payment was made prior to filing of the written
statement in this case. However, there is also a written statement of the
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vendor placed on record in connection with the previous suit i.e. Exhibit
14 which was filed on 19.07.1980 in Title Suit No.69 of 1980 in which
all the parties in the present case were also parties and the suit was
relating to injunction. It has been submitted that the exhibit 14 reveals
that it was disclosed by the vendor about the previous agreement.
37. It has been argued by the learned counsels appearing on behalf
of the appellants that for getting the benefit of Section 19 (b) of Specific
Relief Act certain pre-conditions are required to be satisfied. The
subsequent purchaser or any person claiming under him ought to have
purchased the property for value and has paid the consideration in good
faith and also without notice of the previous contract/agreement of sale.
38. The learned counsel has submitted that at least part payment of
consideration amount in connection with aforesaid two sale deeds are
not in good faith in view of the fact that part payment of Rs.5,000/- in
connection with Exhibit A was made on 07.04.1981 which was after the
filing of the written statement by the vendor on 19.07.1980 in the
previous suit and part payment in connection with the Exhibit A/1 was
done on 14.09.1981 (Exhibit B/4) after filing of the written statement
in the present suit. The written statement in the present suit was filed on
07.09.1981.
39. The learned counsels for the appellants have submitted that the
learned 1st appellate court has wrongly come to a finding that the
defendant nos.2 and 3 were entitled to benefit under Section 19 (b) of
the Specific Relief Act. It is submitted that except the payment of
Rs.10,000/- each at the time of registration of sale deeds, all the balance
payment are of the year 1981 except part payment to the extent of only
Rs.5000/- in connection with Exhibit A was dated 21.02.1980 and
remaining part payment in connection with exhibit A is also in 1981.
40. The learned counsel for the respondents does not dispute the
aforesaid dates and facts regarding payment in connection with Ext.
A and A/1 which have been brought on record.
41. The learned counsel for the appellants referred to the evidence of
D.W. 11 (the defendant no.2) and submitted that during his cross-
examination at paragraph 73, he has stated that after the registration of
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the deed, the payment was made five times and except the 1st payment,
at the time of making remaining payment on 4 occasions, there was a
discussion in connection with the litigation. The learned counsel, by
referring to this, has submitted that the D.W. 11 (the purchaser of the
property) himself who was defendant no.2 admitted that the part
payments were made after having knowledge of the pending litigation.
He has submitted that defendant No. 3 has not been examined in this
case, although the five payments relate to both defendant Nos. 2 and 3.
42. The learned counsel for the appellants has relied upon the
judgment passed by the Hon'ble Madras High Court reported in 1968
SCC OnLine Mad 134 (Sinna Ponnu and Ors. Vs. Singaru Odayar
and Anr.) and submitted that an identical provision was available under
Section 27 (b) of the Specific Relief Act, 1877 as that of Section 19 (b)
of the Specific Relief Act, 1963. He has submitted that in the said
judgment, it has been held that the term "who has paid his money"
means "the whole of the consideration".
43. The learned counsel for the appellants on the point of
constructive notice has submitted that defendant No.3 has not been
examined, and so far as defendant No.2 is concerned, he did not make
any inquiry and such finding has been recorded by the learned courts.
He has also submitted that "a person is said to have notice" of the fact
when he actually knows that fact, or when, but for willful abstention
from an inquiry or search which he ought to have made, or gross
negligence, he would have known it. For this proposition, the learned
counsel has relied upon the judgement passed by the Hon'ble Supreme
Court reported in (2000) 6 SCC 402 (R.K. Mohammed Ubaidullah and
Ors. Vs. Hajee C. Abdul Wahab (D) by Lrs. paragraph 15. He has
emphasized on the initial few lines of the aforesaid paragraph which
deals with the proposition of law. The learned counsel has also
submitted that the aforesaid situation is coupled with the fact that the
defendant No.2 had asked defendant No.3 not to disclose about the
purchase of the property to anybody. The learned counsel has submitted
that in case of constructive notice, the conduct of the parties is primarily
to be seen to come to a conclusion.
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44. The learned counsel has also referred to paragraphs 18 and 19 of
the aforesaid judgement reported in (2000) 6 SCC 402 (supra) and
submitted that the manner in which the bonafide is to be tested with
respect to inquiry prior to purchase has been fully discussed. He submits
that in the said case, people were in the vicinity and the plaintiff did not
make any inquiry with the people around. In the present case, the
adjoining property was already purchased by the plaintiff, but defendant
No.2 did not make any inquiry from them. This conduct is also an
indicative of the fact that the defendant no. 2 had purposely omitted to
make any inquiry from the plaintiff. Had he made that inquiry, the true
facts would have revealed then and there. The defendant no.3 has not
deposed before the court.
45. He has also submitted that considering the nature of the property,
the trial court had decreed the suit by observing that the property
involved in the present case was the property involved for ingress and
egress with respect to the other properties which were already
purchased by the plaintiff by way of registered deed from the same
vendor. The learned counsel has also submitted that this particular
property was sandwiched between both the properties belonging to the
plaintiff sold by the same vendor to the plaintiff. Had the defendant
Nos.2 and 3 made any inquiry from the vendor, the vendor was duty
bound to disclose the fact about the agreement of sale but having not
made any inquiry the purchase of the property is not bonafide, and there
can be no doubt that the defendant nos.2 and 3 had constructive notice
with regard to the agreement of sale. The learned counsel has submitted
that the only inquiry which defendant No.2 has stated in his evidence is
from the sons of the vendor and admittedly he made no inquiry from
the vendor.
46. With respect to the 3rd substantial question of law, the learned
counsel for the appellants has submitted that a specific statement was
made in paragraph 7 of the plaint on the point of readiness and
willingness which was responded to by the plaintiff in paragraph 7
which is a response to both paragraphs 7 and 8 of the plaint. The learned
counsel submits that in the entire suit, there was no dispute with regard
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to readiness and willingness regarding payment of the balance
consideration amount by the plaintiff and since there was no denial with
respect to readiness and willingness of the plaintiff so no specific issue
as such was framed.
47. He has also submitted that the learned trial court had given a clear
finding with respect to readiness and willingness in as much as the
learned trial court while decreeing the suit also observed that when the
plaintiff was ready to perform his part of the contract, there was no
reason that the suit for specific performance be not decreed in his
favour. The fact also remains that as per the prayer made in the suit, the
defendants were to execute the sale deed and therefore the property
having been sold has no bearing in the matter.
48. The learned counsel submits that in a case where there is a
subsequent sale deed after the agreement of sale, the subsequent
purchaser can be directed to join in to execute the sale deed, and
therefore, this observation of the learned 1st appellate court that the
court need not enter into the readiness and willingness on the part of
the plaintiff to honour his part of agreement of sale, merely on the
ground that the sale deed was executed, is not in accordance with law.
However, the finding of fact was recorded by the learned trial court and
in view of the pleadings and the materials on record, there is no dispute
that there was readiness and willingness on the part of the plaintiff to
perform his part of the contract.
Arguments of the Respondents
49. On the 3rd substantial question of law, the learned counsel for
the respondents has referred to Section 16 (c) of the Specific Relief Act
to submit that there is a personal bar to grant of relief. A person seeking
specific performance of contract had to not only aver but also prove
with respect to readiness and willingness to perform his part of the
contract. The terms "readiness" and "willingness" have two different
connotations, and a bald statement of readiness and willingness in the
plaint and a bald statement of readiness and willingness in evidence of
the plaintiff is not sufficient. The capacity to pay was also required to
be demonstrated, and the availability of the amount was also required
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to be demonstrated. He submits that there is neither any pleading nor
any proof with regard to availability of balance consideration amount.
The total consideration amount was Rs.40,000/- out of which an
advance of only Rs.1,000/- was paid.
50. The learned counsel has also submitted that the conduct of the
plaintiff is also required to be taken into consideration inasmuch as
there was a previous agreement with respect to the same property, but
on account of inability on the part of the plaintiff to give the balance
amount, the agreement was not taken to a logical end and subsequently
another agreement was entered into which is involved in the present
case.
51. The learned counsel has referred to the following judgements
passed by the Hon'ble Supreme Court:
(i) (1995) 5 SCC 115 (N.P. Thirugnanam (dead) By Lrs. Vs. Dr. R.
Jagan Mohan Rao and Ors.) Paragraph 5
(ii) (2023) 11 SCC 775 [U.N. Krishnamurthy (since deceased)
through legal representatives Vs. A.M. Krishnamurthy] paragraph 33
(iii) (2024) SCC OnLine SC 1749 (P. Ravindranath and Anr. Vs.
Sasikala and Ors.) para 22
(iv) Civil Appeal No.3015 of 2013 with Civil Appeal No.3016 of
2013 [R. Kandasamy (since deceased) & Ors. Vs. T.R.K. Sarawathy &
Anr.] dated 21.11.2024 paragraph 18; equivalent to (2025) 3 SCC 513
paragraph 18.
52. The learned counsel has submitted that vague pleadings are no
pleadings in the eyes of the law so far as the readiness and willingness
to perform the part of the contract by the plaintiff is concerned.
53. With respect to the 2nd substantial question of law, the learned
counsel for the respondents has submitted that Section 19 (b) has to be
interpreted taking into account that execution of a registered sale deed
permits payment of consideration at a later point in time. The learned
counsel has referred to Section 54 of the Transfer of Property Act and
submitted that the price of the property can be paid, part-paid or
promised, or partly promised to be paid. The learned counsel submits
that the moment the deed is registered, the sale is concluded irrespective
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of the time of payment of the consideration amount. The learned
counsel has further submitted that so far as payment of money in good
faith is concerned, the same would essentially depend upon the facts
and circumstances of a case and merely because there is a deferred
payment of part consideration, the same by itself will not take away
good faith from the side of the person, who has purchased the suit
premises without prior knowledge of the agreement of sale.
54. The learned counsel has tried to distinguish the judgement relied
upon by the appellants, passed by Hon'ble Madras High Court in the
case of Sinna Ponnu and Ors. Vs. Singaru Odayar and Anr. Reported
in 1968 SCC OnLine Mad 134 (supra) and submitted that in the said
case, prior to the sale, by virtue of notice, the prior agreement was
within the knowledge of the purchaser of the property after the
agreement of sale. The learned counsel has also submitted that so far as
the applicability of Section 19 (c) is concerned, the same is to be tested
at the time of enforcement of the Specific Performance of Contract.
55. Learned counsel for the defendant Nos. 2 and 3 has submitted
that as per the two sale deeds executed in their favour i.e. Exhibit A and
Exhibit A/1 respectively, the consideration amount was Rs.20,000/- and
Rs.25,000/- respectively and in the deed itself it was mentioned that
Rs.10,000/- only was paid at the time of registration and the remaining
amount was to be paid later on. He has submitted that under such
circumstances, the balance amount having been paid later on, the
payment is in good faith and therefore, there is no violation of Section
19(b) of the Specific Relief Act.
56. He has also referred to paragraph 17 of the written statement
wherein it has been asserted that some amount was still due which they
were ready to pay, but the vendor had not vacated one room and
therefore, the remaining was not paid. Subsequently, during the
pendency of the case, the remaining amount was also paid and the
vendor vacated the premises and handed over the possession to the
purchaser.
57. Learned counsel for the respondents has responded to the terms
of the agreement which provided that the sale deed was to be executed
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in favour of the plaintiff within the period of two years failing which it
was open to the plaintiff to get it executed through a process of law and
in the present case admittedly the sale deed was executed in favour of
defendant Nos. 2 and 3 much prior to the expiry of the two years. He
has submitted that the terms of the agreement were also required to be
proved and further he has referred to Section 42 of the of the Specific
Relief Act, 1963.
58. Learned counsel has submitted that the terms of the agreement
have not been sufficiently proved and therefore, the same cannot be
used against the defendant Nos.2 and 3.
59. Learned counsel submits that with respect to the two years period
as referred to in the agreement, there is neither any foundational
pleadings nor any evidence rather the case is contrary, the plaintiff has
stated that he was all along ready and willing to pay remaining
consideration amount. Even in the legal notice he stated that he was
ready and willing to pay the balance consideration amount.
Rejoinder of the appellants.
60. While referring the judgment relied upon by the respondents and
reported in (2023) 11 SCC 775 in the case of U. N. Krishnamurthy
(since Deceased) through Legal Representatives Vs. A. M.
Krishnamurthy the learned counsel for the appellants has referred to
paragraph 11 to the said judgment to submit that in the said case specific
plea was raised in the written statement that the plaintiff was never
ready and willing to perform his part of the contract and therefore, a
specific issue was framed as to whether the plaintiff was always ready
and willing to perform his part of the contract. He submits that the
defendant No.1 in the present case, who is the vendor, never
participated in the proceeding, never filed any written statement nor
came forward to the court to depose inspite of the defendants having
asked her to depose before the court. In such circumstances, the
defendant No.1 was the person who could have questioned the readiness
and willingness on the part of the plaintiff to perform his part of the
contract and it was the case where the statement made by the plaintiff
that the plaintiff was ready and willing to perform his part of contract,
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could not be controverted. Learned counsel submits that even the
defendant Nos.2 and 3 did not specifically take a plea regarding absence
of readiness and willingness on the plaintiff to perform his part of the
contract.
61. Accordingly, the parties did not joint issue on the point of
readiness and willingness and for the first time before this Court this
plea of readiness and willingness has been raised and a substantial
question of law has been framed. He submits that the respondents who
were defendant Nos. 2 and 3 did not controvert the statement made by
the plaintiff regarding readiness and willingness to perform his part of
the contract.
62. While further distinguishing the aforesaid judgment, the learned
counsel has referred to paragraph 20 of the judgment and submitted that
the Hon'ble Supreme Court has held that when a certain amount has
been paid in advance and the balance is required to be paid within a
stipulated time, it is for the plaintiff to show that he was in a position to
pay the balance money. The plaintiff has to prove that he has the money
or has alternatively made necessary arrangements to get the money and
in the said case before the Hon'ble Supreme Court, the appellant/the
original defendant have all along contended that the plaintiff respondent
neither offered to pay nor was in a position to pay the balance
consideration of Rs.15,00,000.
63. The learned counsel has then referred to paragraph 26 of the
aforesaid judgment which in turn referred to the judgment reported in
AIR 1968 SC 1355 [Prem Raj v. DLF Housing Co. Construction (P)
Ltd.] and has submitted that the Hon'ble Supreme Court held that it is
well settled that in a suit for specific performance, the plaintiff should
allege that he is ready and willing to perform his part of the contract and
if the fact is traversed, he is required to prove a continuous readiness
and willingness from the date of the contract to the time of the hearing,
to perform the contract on his part. The learned counsel has submitted
that the question about the readiness and willingness of the plaintiff is
required to be further proved if such statement is traversed in the written
statement. In absence of any contrary statement in the written statement
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the readiness and willingness have been averred and stated by the
plaintiff in the evidence was sufficient. The learned counsel has
submitted that in absence of any denial with regard to statement made
by the plaintiff regarding his readiness and willingness to perform his
part of the contract, the case of the plaintiff was well proved.
64. With the aforesaid submissions, the learned counsel submits that
the judgment relied upon by the respondents reported in (2023) 11 SCC
775 (Supra) when read as a whole does not help the respondents in any
manner. With respect to the judgment reported in 2024 SCC OnLine
SC 1749 in the case of P. Ravindranath and Another vs. Sasikala and
Others the learned counsel has referred to paragraph 10 which deals
with the common written statement of the defendant Nos.1 to 5 of the
said case and has in particular referred to sub-paragraph (c) thereof to
submit that it was a specific plea of the defendant that the plaintiff was
never ready and willing to perform their part of contract at any point of
time.
65. Learned counsel has referred to the judgment reported in (1995)
5 SCC 115 in the case of N. P. Thirugnanam (Dead) by LRS. Vs. Dr.
R. Jagan Mohan Rao and Others which has been relied upon by the
respondents and referred to the last portion of paragraph 5 thereof to
submit that the readiness and willingness to perform the part of the
contract has to be necessarily decided on the basis of conduct of the
parties.
66. Learned counsel has also referred to Form 47 prescribed by Code
of Civil Procedure under Appendix A and submitted the requirements
of a pleading in connection with specific performance of contract has
been prescribed in this case. The pleading of the plaintiff is in
conformity with Form 47, and therefore, nothing else is required to be
pleaded so far as plaint is concerned.
67. The learned counsel has referred to the legal notice sent by the
plaintiff which is dated 27.06.1980 marked as Exhibit-1 postal receipt
is Exhibit-2 and the acknowledgment is Exhibit-3 and submitted that
readiness and willingness is demonstrated through the said notice also
to which the defendant No.1 did not respond inspite of service.
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68. The learned counsel has submitted that the perusal of Exhibit-1
reveals that it was specifically stated therein that the agreement was
executed on 05th August, 1979 for consideration amount of Rs.40,000/-
in which Rs. 1,000/- was already paid and the sale deed was to be
executed within two years from the date of the agreement. However,
much prior to expiry of two years, the legal notice was sent stating that
the plaintiff was still ready and willing to perform the agreement on his
part and he applied before the defendant No.1 to specifically perform
the agreement within a month from the date of the legal notice failing
which the plaintiff would approach the court for needful.
69. The learned counsel has submitted that the legal notice having
not been responded stood admitted by the defendant No.1, though
received. He also submits that the conduct of defendant No.1 also
becomes important as she neither filed the written statement nor
appeared before the court to controvert the stand of the plaint. He has
also submitted that once there is an agreement stating that the balance
is to be paid and that the final sale deed is to be executed within two
years, there was no occasion for the defendant No.1 to part with the
property much prior to expiry of two years.
70. The learned counsel has submitted that there was a time frame of
two years from the date of the agreement for getting sale deed executed
and making payment. He has submitted that the time frame for making
balance payment was of two years, but the property was sold which
much prior to two years.
71. Learned counsel has submitted that the cause of action to file the
suit normally might not have accrued prior to expiry of two years from
the date of the agreement in case of refusal by the defendant No.1 to
execute the sale deed but in the instant case since the property was
transferred much prior to that the legal notice was given and the suit
was filed.
72. Learned counsel has referred to paragraph 10 of the evidence of
Plaintiff/P.W.-19 and has submitted that he stated that pursuant to the
agreement he was throughout ready to pay the balance consideration
amount as per the agreement and still he was ready to pay. He has
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repeatedly asked the defendant No.1 to do the needful by executing the
sale deed for this they had also given the legal notice but no response
was received and he has supported his statement by filing documents
before the court. This statement is made in paragraph 11 of the evidence
of P.W-19. He submits that there was no cross examination with respect
to specific statement made in paragraphs 10 and 11 of the evidence of
P.W-19. He submits that this much is sufficient to show the readiness
and willingness throughout even during the pendency of the suit.
73. Learned counsel has also submitted that as is apparent from the
records of this case, the judgment was passed by the learned trial court
on 11.03.1988 and the decree was signed on 23.03.1988 with the
direction upon plaintiff to deposit balance amount of Rs.39,000/- within
60 days and the plaintiff deposited the said amount on 19.04.1988 and
the amount is still lying with the court as the judgment of the trial court
was reversed by the learned 1st appellate court. The learned counsel has
referred to order sheet dated 21.04.1988 with regard to deposit of
money by the plaintiff in terms of the judgment and decree while the
learned trial court.
74. The learned counsel has referred to Section 16, Explanation-2,
clause (c) thereof, to submit that it has been clearly mentioned therein
that where a contract involves the payment of money, it is not essential
for the plaintiff to actually tender to the defendant or to deposit the
money in the court except when the court directs. He submits that the
moment the court directed by decree dated 23.03.1988 the amount was
immediately deposited in terms thereof.
75. The learned counsel submits that immediately after expiry of 60
days, the plaintiff filed execution case on 25.05.1988 which was
numbered as Execution Case No. 03 of 1988. The draft sale deed was
also approved by the executing court on 27.05.1988. He submits that
this fact is recorded in the order sheet of the executing court dated
20.08.1990.
76. However, the records of the executing court are not available
before this Court as no such records has been called for.
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77. The learned counsel for the appellants has submitted that the
capacity to pay otherwise also cannot be disputed in view of the fact
that the adjoining two properties to the property involved in the present
case were purchased by the plaintiff/his wife /brother by paying a
consideration amount of Rs.5,100/- and Rs.29,000/- which was
executed way back in the year 1973 and 1976, those have marked as
Exhibit-6 and Exhibit-6/A.
78. Learned counsel for the appellants has referred to paragraph 5 of
the plaint and submitted that the plaintiff had disclosed himself about
the earlier agreement which was for a consideration amount of
Rs.36,000/- and that he was unable to pay, but this paragraph was
completely denied by the defendant Nos.2 and 3 in their written
statement, therefore, they cannot rely upon this paragraph.
79. The learned counsel has relied upon the judgment reported in
(1997) 2 SCC 200 in the case of Sukhbir Singh and Others vs. Brij Pal
Singh and Others, paragraph 5. The learned counsel has referred to
paragraph 5 thereof and submitted that even in case where the plaintiff
had attended the Sub-Registrar office for execution of sale deed and
waited for the same, the circumstance was considered to be sufficient
to show his readiness and willingness to pay the balance consideration
amount and even at that stage, it was not necessary for him to actually
show the availability of cash. He submits that in the present case, a legal
notice was furnished stating that he was ready and willing to perform
his part of the contract and the deed be executed within a period of one
month although as per the agreement there was still sometime left. This
itself, according to the learned counsel, was sufficient to indicate
readiness and willingness on the part of the plaintiff.
80. Learned counsel submits that the totality of the circumstances
and the conduct of the respective parties are to be taken together to see
the readiness and willingness on the part of the plaintiff to perform his
part of the contract. For this proposition, he has relied upon the
judgment reported in (1996) 10 SCC 51 in the case of Pandurang
Ganpat Tanawade vs. Ganpat Bhairu Kadam and Others paragraph 5
to 8.
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81. The learned counsel has relied upon the judgment passed by the
Hon'ble Supreme Court reported in (2012) 5 SCC 712 in the case of
Narinderjit Singh vs. North Star Estate Promoters Limited paragraph
24 and submitted that as in the present case in the judgment before the
Hon'ble Supreme Court there was a complete denial of the agreement
of sale rather it was alleged to be forged and fabricated, but the finding
in connection with the agreement of sale was found to be valid and was
decided in favour of the plaintiff. He submits that in a case where the
defendants have totally denied the very existence of the agreement of
sale, the matter has to be looked into slightly differently.
82. Learned counsel Mr. Kirtivardhan, in addition to the argument
advanced by Mr. Rahul Kumar Gupta, Advocate has submitted that the
consequence of specific pleading and readiness and willingness and
specific deposition of readiness and willingness by the plaintiff which
remained uncontroverted not only in the written statement but also
during the cross examination of the plaintiff who was examined as P.W-
19 is to be seen in the light of the judgment passed by the Hon'ble
Supreme Court reported in (2023) 4 SCC 239 in the case of Basavraj
vs. Padmavathi and Another paragraph 12, 13, 14 and 16.
83. Learned counsel has submitted that the statement in the plaint
and the statement made in evidence of P.W-19 who clearly stated his
readiness and willingness to perform his part of the contract and there
was neither any cross examination on the point nor was asked upon to
show the availability of fund. He has also submitted that the conduct of
the plaintiff is also required to be seen as was seen in the judgment of
the Hon'ble Supreme Court in the case of Basavraj vs. Padmavathi and
Another (Supra) that the balance consideration amount was
immediately deposited by the plaintiff in the court after the decree
passed by the learned trial court. The learned counsel has submitted that
although much time has elapsed, but the fact also remains that the
balance consideration amount was duly deposited by the plaintiff and
the same is still lying in the court and therefore, there is no equity in
favour of the respondents merely, because there are sale deeds in their
favour and the agreement of sale is of the year 1979.
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Findings
84. Section 16 and Section 19 as it stood at the relevant point of time
is quoted as under:
"16. Personal bars to relief.--Specific performance of a
contract cannot be enforced in favour of a person--
[(a) Who would not be entitled to recover compensation for its
breach; or]
(b) who has become incapable of performing, or violates any
essential term of, the contract that on his part remains to be
performed, or acts in fraud of the contract, or wilfully acts at
variance with, or in subversion of, the relation intended to be
established by the contract; or
(c) [who fails to aver and prove] that he has performed or has
always been ready and willing to perform the essential terms of
the contract which are to be performed by him, other than terms
the performance of which has been prevented or waived by the
defendant.
Explanation.--For the purposes of clause (c),--
(i) where a contract involves the payment of money, it is not
essential for the plaintiff to actually tender to the defendant or
to deposit in court any money except when so directed by the
court;
(ii) the plaintiff [must aver] performance of, or readiness and
willingness to perform, the contract according to its true
construction.
19. Relief against parties and persons claiming under them by
subsequent title.--Except as otherwise provided by this
Chapter, specific performance of a contract may be enforced
against--
(a) either party thereto;
(b) any other person claiming under him by a title arising
subsequently to the contract, except a transferee for value who
has paid his money in good faith and without notice of the
original contract;
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(c) any person claiming under a title which, though prior to the
contract and known to the plaintiff, might have been displaced
by the defendant;
1 [(ca) when a limited liability partnership has entered into a
contract and subsequently becomes amalgamated with another
limited liability partnership, the new limited liability
partnership which arises out of the amalgamation.]
(d) when a company has entered into a contract and
subsequently becomes amalgamated with another company, the
new company which arises out of the amalgamation;
(e) when the promoters of a company have, before its
incorporation, entered into a contract for the purpose of the
company and such contract is warranted by the terms of the
incorporation, the company:
Provided that the company has accepted the contract and
communicated such acceptance to the other party to the
contract."
85. Both the 1st and the 2nd substantial questions of law relate to
Section 19 (b) of the Specific Relief Act, 1963 and they are taken up
together. The learned trial court decided issue no. 5 - Have the
defendants notice about agreement between the plaintiff and defendant
no.1? in favour of the plaintiff and held that defendants No. 2 and 3
had prior notice of the agreement of sale. The learned trial court took
into consideration that a portion of the suit property to the extent
of 7' x 7' feet was already in occupation of the plaintiff; PW19
(plaintiff) stated that people of the locality had knowledge about his
agreement and DW11 (defendant No. 2) had made a specific statement
that he did not make any inquiry about the land and also the specific
statement of DW11 that he had asked his wife not to disclose anybody
about the sale deeds. The defendant no.3, the wife of defendant no.2 did
not depose before the court. The learned trial court had also taken into
consideration the written statement filed by the defendant no.1 in the
earlier suit and the fact remains that the defendant no.1 neither filed
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written statement nor deposed in the court in this suit in spite of requests
made by the defendant no.2. Even the sons of the defendant no.1, who
were witness to the agreement with the plaintiff and were also witnesses
to the sale deed executed in favour of the defendant nos. 2 and 3 and
they were the persons whom the defendant no.2 claimed to have
enquired about the property, did not depose in the court in spite of
requests made by the defendant no.2.
86. The learned trial court was of the view that the aforesaid
circumstances were against defendant Nos.2 and 3 which supported the
case of the plaintiff that defendants No. 2 and 3 had full knowledge
about the previous agreement between the plaintiff and defendant
No.1. Further circumstances which were taken into consideration was
that defendant Nos. 2 and 3 had not made full payment of the
consideration amount at the time of execution of the sale deed. The
learned trial court ultimately held that the defendants No. 2 and 3 had
knowledge about the agreement between plaintiff and defendant No.1.
87. So far as the learned 1st appellate court is concerned, it was of the
view that the vendor i.e. defendant No.1 was already in possession of
the suit house and so it was sufficient for defendant Nos. 2 and 3, and
they were not required to make any further inquiry from other occupants
of other portion of the house. The learned 1st appellate court was of the
view that the evidence of knowledge of the previous agreement must be
direct to impute actual knowledge, and it must be asserted with
certainty. The learned 1st appellate court observed that the evidence of
DW11 was not sufficient to impute knowledge and at the same time,
the plaintiff had not produced any evidence, oral or documentary, that
defendant No. 3 had any knowledge about the agreement. The learned
1st appellate court held that the defendant Nos. 2 and 3 did not have
actual knowledge of execution of agreement of sale of the disputed land
prior to execution of two registered sale deeds in their favour. The
learned 1st appellate court then considered the plea of constructive
notice in paragraph 17 of the judgement and held that the defendant
nos.2 and 3 had no constructive notice of the prior agreement of the
plaintiff and defendant no.1.
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88. The learned trial court had enumerated various circumstances to
show that the defendant nos. 2 and 3 had constructive notice of the
previous agreement of the defendant no.1 with the plaintiff but most of
those circumstances were not considered by the learned 1 st appellate
court while reversing the findings on the point of constructive notice of
the previous agreement of sale.
89. The learned 1st appellate court has been swayed away by the fact
that the possession of the plaintiff over a small portion of the suit
property was of no consequence and the defendant nos.2 and 3 having
purchased the suit property from the actual owner, who was in
possession of the major portion of the suit property which will not give
the benefit of explanation (ii) of Section 3 of the Transfer of Property
Act to the plaintiff.
90. However, the learned 1st appellate court has not considered the
other facts and circumstances which were pointed out by the plaintiff in
the plaint itself and proved by the plaintiff in the trial to demonstrate
constructive notice which were duly considered by the learned trial
court in decreeing the suit as discussed above. Further, the defendant
no.2 having admitted in his evidence that he had asked his wife not to
disclose about the purchase of the property to anyone coupled with non-
examination of the defendant no.3, wife of defendant no.2, who is the
sole purchaser of the a portion of the suit property in her independent
capacity vide exhibit A/1 is certainly one of the circumstances to draw
adverse inference against the defendant nos.2 and 3 with respect to
constructive notice of the agreement of sale between the defendant no.1
and the plaintiff. It is an admitted fact that the plaintiff did not make
any enquiry from the plaintiff who was in possession of 7 feet x 7 feet
of the suit property and using it as godown and was also using the
portion of the suit property as 'galli'.
91. This Court finds that while dealing with the constructive notice,
the learned 1st appellate court has not at all considered the
circumstances that the defendant No. 2 had even asked the defendant
No. 3 not to disclose about the purchase made by them and that the
defendant no.2 did not make any enquiries. The defendant No. 3 has not
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appeared before the court without any explanation, and consequently
the defendant No. 3 could not be cross-examined with respect to actual
or constructive notice in connection with the property involved in this
case. The plaintiff has sufficiently proved that he was in occupation of
a portion of the suit premises and using the same as godown and the
possession was given by the defendant no.1 pursuant to the agreement
of sale and was further using the galli in the suit premises for his ingress
and egress with respect to adjoining properties purchased by him/family
members from the same vendor but the defendant nos.2 and 3
completely omitted to make any enquiry from the plaintiff or even from
the neighbourhood with respect to the suit property and the defendant
no.3 did not depose and her non-examination would certainly go against
the defendant nos. 2 and 3.
92. In view of the aforesaid facts and circumstances, this Court is of
the view that the defendants no.2 and 3 had constructive notice of the
agreement, but still they went ahead to purchase the property involved
in this case. This Court is of the view that the court of 1st appeal erred
in law in holding that the defendants no. 2 and 3 did not even have
constructive notice of the agreement for sale in favour of the plaintiff.
The substantial question of law No. 1 is accordingly answered in
favour of the appellants and against the respondents.
93. Further, as per Section 19 (b) of the Specific Relief Act, the relief
of specific performance of contract can be granted even against any
other person claiming under the owner of the property by a title arising
subsequent to the contract. However, there is an exception to this. The
exception is that specific performance of contract is not enforceable
against: transferee for value, who has paid his money in good faith and
without notice of the original contract.
94. In the present case, it is an undisputed fact as surfaced during the
course of arguments and from the materials on record that the suit
property was covered by the agreement for sale dated 05.08.1979
(Exhibit 5) for a total consideration of Rs. 40,000/- out of which
Rs.1000/- was already paid and remaining Rs.39000/- was to be paid at
the time of execution of the sale deed, which was to be executed within
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2 years. However, prior to expiry of 2 years, the property was sold to
defendant Nos.2 and 3, vide Exhibit A and Exhibit A/1, both dated
25.01.1980, for a consideration amount of Rs.20,000/- and Rs. 25,000/-
respectively (total Rs.45,000/-) and at the time of execution of sale
deeds, only part payment to the extent of Rs.10,000/- each was made by
the defendant nos. 2 and 3 to the defendant no.1. Even if it is assumed
for a moment that defendant nos. 2 and 3 did not have any knowledge
of the agreement for sale dated 05.08.1979 (Exhibit 5) between the
plaintiff and the defendant no.1, then also the records reveal that part
payments of the consideration were made by defendant nos. 2 and 3 to
defendant no. 1 after they came to know about the agreement for sale
dated 05.08.1979 (Exhibit 5).
95. It is also not in dispute during the arguments that written
statement was filed by the defendant No. 1, in Title Suit No.69 of 1980
on 19.07.1980, in which the plaintiff and the defendants of the present
case were also parties. In the written statement, the defendant No.1 of
the present case had taken a specific stand that she had earlier executed
the sale deed in favour of the present defendant Nos.2 and 3, who had
obtained LTI on the deeds, which she never intended to do, nor could
be done in view of the agreement in favour of the present plaintiff. She
had also stated in the written statement in that suit that defendant nos.2
and 3 were fully aware of the agreement and in collusion with her sons,
got the documents prepared and got them executed on 25.01.1980. This
Court finds that in the present case, the defendant no.1 neither appeared
nor filed any written statement and at the same time did not depose
before the court. Further, the defendant no. 2, who was examined as
DW-11 before the learned trial court, clearly stated that defendant no.1
and her sons did not appear before the court to give evidence in spite of
special request.
96. So far as sale deed Exhibit A is concerned, part payment was
made on 07.04.1981, which was after filing of the written statement by
DW-1 in Title Suit No.69 of 1980, wherein defendant no.1 had clearly
mentioned about the agreement of sale involved in this case. This Court
also finds that part payment of Rs.5000/- in connection with sale deed
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Exhibit A/1 was made on 14.09.1981, which was after the filing of the
written statement in the present case on 07.09.1981.
97. Thus, there can be no doubt that part consideration amount was
paid in connection with both the sale deeds executed by the defendant
No. 1 in favour of defendant Nos. 2 and 3 respectively after they came
to know about the agreement of sale dated 05.08.1979 between the
plaintiff and the defendant no.1.
98. In such circumstances, this Court is of the considered view that
the defendant Nos. 2 and 3 do not satisfy the test of a transferee for
value who has paid his money in good faith.
99. The requirement of Section 19 (b) of the Specific Relief Act is
that the transferee must have paid the full consideration money before
receiving notice of the prior agreement and this Court is of the
considered view that payments after notice of prior agreement defeats
the claim of good faith. This Court is of the considered view that once
it came to light to the defendant Nos. 2 and 3 that there was an
agreement of sale between the plaintiff and defendant No. 1, any
payment made in connection with the sale deed exhibit- A and A/1 with
respect to the suit property cannot be said to be payment in good faith,
for the purpose of coming into the folds of the exceptions under Section
19 (b) of the Specific Relief Act.
100. In the judgment passed by Hon'ble Madras High Court, in the
case of Sinna Ponnu (supra), similar provisions as that of Section 19
(b) were subject matter of consideration which was present in the
Specific Relief Act, 1877 as Section 27 (b). The Hon'ble Madras High
Court held that a transferee to claim the protection under Section 27 (b)
of the Specific Relief Act must have paid the entire consideration and
protection is not available to a transferee who has paid only part of it.
101. Thus, this Court is of the considered view that as per Section 19
(b) part payment of the consideration money, paid after the factum of
agreement of sale having come to light, cannot be said to be money paid
in good faith. As a cumulative effect of the aforesaid findings, the
defendant Nos.2 and 3 are not entitled for the benefit of exception under
Section 19 (b) of the Specific Relief Act. The learned 1st appellate court
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has not considered the aforesaid aspect of the matter and has wrongly
held that the defendant nos.2 and 3 have succeeded in their claim and
they were protected under the provisions of exception contained in
Section 19 (b) of the Specific Relief Act while reversing the judgment
passed by the learned trial court.
102. The substantial question of law No. 2 is accordingly answered
in favour of the appellants and against the respondents.
103. So far as the substantial question of law no.3 is concerned, this
Court finds that a clear averment was made by the plaintiff regarding
his readiness and willingness to perform his part of the contract in the
plaint. The statement made in paragraph 7 of the plaint was never
controverted by the defendants no. 2 and 3. The defendant no.1 neither
filed a written statement nor appeared before the court as a witness. The
factum of the readiness and willingness to pay the balance consideration
amount is also apparent from the legal notice dated 27.06.1980 (exhibit-
1) wherein the plaintiff had expressed his readiness and willingness to
perform his part of the contract and had requested the defendant no.1 to
execute the sale deed but there was no response from the defendant
no.1. It is equally important to note that the plaintiff had two years' time
as per the agreement to get ready for payment and get the sale deed
executed in his favour but the plaintiff had given the legal notice
showing his readiness and willingness to perform his part of the contract
within a period of 1 (one) year from the date of agreement. This Court
also finds that it has been stated by the D.W-11 (defendant no.2) that
they had asked the defendant no. 1 and her sons to depose before the
court, but none of them appeared. Accordingly, the defendant no.1 and
her sons purposely kept themselves away from the proceedings.
104. The plaintiff having asserted that he was ready and willing to
perform his part of the contract, and also having given a legal notice
dated 27.06.1980 much prior to expiry of 2 years from the date of
agreement of sale asking the defendant no. 1 to perform her part of the
contract, and stating that the plaintiff was ready and willing to perform
his part of the contract by paying the remaining balance amount and
asking the defendant no. 1 to perform her part of the contract, are
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sufficient to demonstrate that the plaintiff was ready and willing to
perform his part of the contract throughout.
105. Specific statement was made in paragraph 10 of the evidence of
the plaintiff (P.W. 19) that in the light of agreement entered in the
month of August 1979, he was throughout ready to make the balance
payment and still he was ready to give the balance payment. He further
stated that he has been chasing the defendant no.1 for execution of the
sale deed for which he had also given a legal notice (exhibit-1) but the
defendant no.1 did not give any reply. There has been no cross-
examination of P.W. 19 on this point. This Court is of the considered
view that the plaintiff had done whatever he could do to get the sale
deed executed in his favour and has expressed his readiness and
willingness to deposit the balance consideration amount of only
Rs.39,000/-. Thus, readiness and willingness on the part of the plaintiff
was duly averred and proved.
106. This Court finds the statement made by the plaintiff on the point
of readiness and willingness to perform his part of the contract was
never disputed in the written statement filed by the defendant nos.2 and
3. So far as defendant no.1 is concerned, she did not file any written
statement to controvert any statement of the plaintiff made in the plaint.
The learned trial court also did not frame any issue on the point of
readiness and willingness to perform the part of the contract by the
plaintiff as it remained undisputed. Even at the stage of evidence, the
plaintiff emphatically reiterated his readiness and willingness to
perform his part of contract and the steps taken by him to ensure that
the sale deed is executed but there was no cross-examination on this
point. Therefore, the learned trial court recorded that the plaintiff was
ready and willing to perform his part of the contract and also considered
the position and location of the property and ultimately decreed the suit
asking the plaintiff to deposit the balance consideration amount which
he duly deposited as per court's order.
107. So far as learned 1st appellate court is concerned, the defendants
did not raise any point regarding readiness and willingness on the part
of the plaintiff to perform his part of the contract and further the learned
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1st appellate court on account of the findings refused to pronounce on
readiness and willingness of the plaintiff and admittedly no such point
of determination on readiness and willingness was framed by the
learned 1st appellate court.
108. The point of readiness and willingness to perform the part of the
contract by the plaintiff has been framed for the first time before this
Court at the stage of framing additional substantial question of law at
the instance of the defendant nos.2 and 3. The law is well settled that
the issues are framed on the disputed questions and in the present case,
there was no dispute or denial with regard to readiness and willingness
on behalf of the plaintiff to perform his part of the contract at any stage
i.e. at the stage of filing written statement or even at the stage of
evidence, no such issue was framed by the learned trial court as well as
the learned 1st appellate court.
109. In the present case, the statement of readiness and willingness
was made in the plaint but was not traversed in the written statement.
Still the plaintiff has led sufficient evidence to satisfy the requirement
of law.
110. This Court finds that the statement made in the written statement
on the point of readiness and willingness to perform the contract by the
plaintiff remained uncontroverted in the written statement; the plaintiff
(P.W-19) had made specific statement and also in the light of the
evidence made by the plaintiff before the court again asserting his
readiness and willingness to perform his part of the contract, to which
again there was no cross examination. So far as relief for specific
performance in the present case is concerned, this Court is of the view
that in a case where a specific statement has been made and asserted
that the plaintiff was ready and willing to perform his part of the
contract which remained uncontroverted and statements were also made
at the time of evidence as to what steps were taken by the plaintiff to
ask the defendant no.1 to execute the sale deed including issuance of
legal notice showing readiness and willingness to perform his part of
contract and repeatedly approaching the defendant no.1 to execute the
sale deed, which also remained uncontroverted as there was no cross-
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examination on this aspect of the matter. The readiness and willingness
on the part of the plaintiff was sufficiently pleaded and proved.
111. The fact also remains that the entire balance consideration
amount of Rs. 39,000/- was deposited before the trial court way back in
the year 1988 in terms of the directions of the trial court immediately
after passing of the decree and the amount is still lying in the court.
112. In view of the aforesaid findings, the 3rd substantial question of
law is also decided in favour of the appellants and against the
respondents.
113. All the substantial questions of law having been answered in
favour of the appellants (plaintiffs), the judgement of the learned 1 st
appellate court, reversing the decree passed by the learned trial court, is
set-aside.
114. This second appeal is accordingly allowed.
(Anubha Rawat Choudhary, J.)
Saurav/AFR
