Smt. Shova Devi vs Sri Hasmukh Thacker
2025 Latest Caselaw 3291 Jhar

Jharkhand High Court

Smt. Shova Devi vs Sri Hasmukh Thacker on 18 March, 2025

Author: Anubha Rawat Choudhary

Bench: Anubha Rawat Choudhary

                IN THE HIGH COURT OF JHARKHAND AT RANCHI

                                 Second Appeal No. 4 of 2016

            1. Smt. Shova Devi, wife of late Dasrath Prasad Swarnkar.
            2. Sri Krishna Prasad Verma
            3. Sri Suresh Prasad Verma
            4. Sri Rajesh Kumar Verma
            5. Sri Shyam Kumar Verma
            6. Sri Rakesh Kumar Verma
            7. Sri Sanjay Kumar Verma
            Appellant Nos. 2 to 7 are sons of late Dashrath Prasad Swarnkar,
            resident of Katras Road, Matkuria, P.O. & P.S. Bankmore, Dist.
            Dhanbad.
                        ...      ...    Defendants/ Respondents/ Appellants
                                    Versus
            Sri Hasmukh Thacker, son of late Ratilal Thacker, resident of Auto
            Centre, Katras Road, Matkuria, P.O. & P.S. Bankmore, Dist. Dhanbad.
                        ...        ... Plaintiff/ Appellant/Respondent
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CORAM :HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY

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For the Appellants : Mrs. Jasvindar Mazumdar, Advocate Mrs. Neeharika Mazumdar, Advocate For the Respondent : Mr. Rahul Kumar Gupta, Advocate Mr. Lukesh Kumar, Advocate Mr. Rakesh Kr. Singh, Advocate

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21/18.03.2025 Heard the learned counsel appearing on behalf of the parties.

2. This Second Appeal has been filed against the Judgment dated 09.09.2015 (decree signed on 14.09.2015), by learned District Additional Sessions Judge-VIII, Dhanbad in Title Appeal No. 136 of 2012, whereby the Appeal has been allowed. The 1st Appellate Court has set aside the judgment dated 25.09.2012 (decree signed on 10.10.2012) passed by learned Civil Judge (Senior Division)-VI, Dhanbad in Title Suit No. 52 of 2005, whereby the learned Trial Court had dismissed the suit for specific performance of contract instituted by the plaintiff.

3. The following substantial questions of law have been framed for consideration :

a) Whether the contradictory interpretation of exhibit 1 by both the lower court below gives rise to a substantial question of law as one of the co-sharer is not a party to thus any such alienation by virtue of said agreement in question is not sustainable in the eyes of law?

b) Whether the failure of the plaintiff with cogent evidence to demonstrate his willingness to perform his part of the agreement with the defendants debars the plaintiff to have specific performance of contract as per Section 16(c) of the Specific Relief Act?"

Arguments of the appellants (defendants)

4. The learned counsel for the appellants has submitted that the core of the dispute is in connection with the agreement of sale dated 05.07.2003 (exhibit-1) which was said to be entered on the one hand between the 7 legal heirs and successors of late Dasrath Prasad Swarnkar (in whose name the property was standing) and Sri Hasmukh Thacker on the other hand. She submits that admittedly the daughters of late Dasrath Prasad Swarnkar were not party to the said agreement and one son namely, Rajesh Kumar Verma, was not a signatory to the said agreement, as he did not sign the agreement and the agreement did not reveal that one or the other co-sharers of the property was authorized to act on behalf of said Rajesh Kumar Verma. She submits that though Rajesh Kumar Verma was not a signatory to the agreement, he was made party as defendant No. 4 in the suit and the written statement was filed on behalf of all the defendants stating that defendant No. 4 was not a signatory to the agreement.

5. The learned counsel has further submitted that as per the agreement, the total consideration amount with respect to the property was Rs.78,000/- out of which Rs.53,500/- was said to have been paid and remaining amount was Rs.24,500/- and the agreement reveals that the vendors were to execute and register a proper sale deed in favour

of the plaintiff within a period of 2 months from the date of the agreement at cost and expenses of the purchaser (plaintiff) on receipt of balance consideration amount of Rs.24,500/- only before Registering Authority at the time of registration of the sale deed. It was also stipulated that if the vendors fails to execute and register a proper sale deed within the stipulated time, the purchaser (plaintiff) shall be at liberty to make the vendors bound to executed and register the sale deed in favour of the purchaser (plaintiff) with the help of Court.

6. The learned counsel has submitted that the agreement was executed on 05.07.2003 and two months expired on 05.09.2003 but the case was instituted seeking Specific Performance of Contract on 06.04.2005 and in the plaint there is no specific averment as to what steps the plaintiff had taken to show his readiness and willingness to execute the sale deed within 2 months from the agreement and even till the filing of the suit . The learned counsel has relied upon the judgment passed by the Hon'ble Supreme Court report in Janardan Das & Ors. Vs. Durga Prasad Agarwalla & Ors. [2024 SCC Online SC 2937] and has referred to paragraph- 7 of the said judgment and has submitted that the said judgment has considered the concept of continuous readiness and willingness as per mandate of Section 16(c) of the Specific Relief Act, 1963 and also had similar fact as is involved in the present case wherein one of the defendants of the case lacked the authority to act on behalf of other defendants without a valid and subsisting General Power of Attorney, meaning thereby all the defendants of the case were not party to the Agreement of Sale. She has referred to paragraphs-8, 9 and 13 of the said judgment.

7. The learned counsel has submitted that in the present case the learned Trial Court had interpreted the agreement by holding that it was not binding on the defendant No. 4 as he was not a signatory to the said agreement and consequently, the agreement was not at all enforceable and there was no valid agreement between the parties to sale vide agreement dated 05.07.2003. She submits that this finding has been reversed by the learned Appellate Court by observing that no separate

written statement was filed by the defendant No. 4 and no evidence was adduced by the defendant No. 4 and the only person who adduced in evidence was defendant No. 5, who deposed that the defendant No. 4 did not sign the agreement as he had gone out of station and he had agreed that he would sign the agreement once he comes back and that the agreement was executed considering the interest of the family. The learned counsel has submitted that though the defendant No.4 had not filed a separate written statement and had not deposed before the Court but a specific stand has been taken in the written statement filed by all the defendants that defendant No. 4 was not a signatory to the agreement and it was not the case of the purchaser (plaintiff) from the agreement or from the plaint that the defendant no.4 had authorised one or the other person to act on his behalf or had undertaken to sign later and on this court the agreement was binding on him. The learned counsel has submitted that the Appellate Court was not justified in reversing the decree and the 1st substantial question of law is fit to be answered in favour of the appellants and against the respondents.

8. With respect to the 2nd substantial question of law, she has submitted that the readiness and willingness in terms of Section 16(c) of the Specific Relief Act, is also to be seen in the light of the aforesaid judgment of Janardan Das (supra) and has submitted that there is no material on record that the purchaser (plaintiff) had acted in terms of the agreement and only a vague statement was made in the plaint that the plaintiff has been approaching the defendants for the purpose of execution of the sale deed although as per the agreement the needful was to be done within a period of 2 months from the date of agreement. The learned counsel has submitted that it is a requirement in law that party has to act in terms of the agreement to show their readiness and willingness. She has also submitted though the balance amount is not required to be deposited before the Court but availability of the fund is required to be demonstrated to show the readiness and willingness. She submits that the learned Appellate Court has recorded a finding in connection with readiness and willingness in para-14 of the impugned

judgment by merely observing that the total value of the property as per the agreement was Rs.78,000/- out of which Rs.53500/- i.e. to the extent of 70% was already paid and therefore, it cannot be said that the purchaser (plaintiff) was not ready to purchase the property or purchaser (plaintiff) was not ready and willing to act as per the agreement. Learned counsel submits that finding of the learned 1 st Appellate Court on the point of readiness and willingness is contrary to the judgment passed by the Hon'ble Supreme Court in case of Janardan Das (supra) and therefore, the 2nd substantial question of law is also fit to be answered in favour of the appellants and against the respondent- purchaser (plaintiff).

Arguments of the respondent- purchaser (plaintiff)

9. Learned counsel for the respondent- purchaser (plaintiff) , on the other hand, has opposed the prayer and has submitted that non-signing of the agreement of sale by Rajesh Kumar Verma (defendant No. 4) has been fully explained by the defendant No. 5 in his evidence and accordingly, the learned 1st Appellate Court has rightly taken note of the evidence of defendant No. 5 in the light of the fact that the defendant No. 4 did not file a separate written statement and defendant No. 4 had not even deposed before the learned Court. The learned counsel has submitted that the agreement was binding on defendant No. 4 in the light of the discussions made by the learned 1st Appellate Court and such finding of fact being based on material on record, cannot be said to be perverse in the eyes of law.

10. Without prejudice to the aforesaid arguments, the learned counsel has relied upon the judgment passed by Hon'ble Supreme Court in the case of Surinder Singh Vs. Kapoor Singh (dead) through LRS & Ors. [(2005) 5 SCC 142] and has submitted by referring to to paragraphs-6,7,8 and 16 of the said judgment to submit that merely because one of the co-owner of the property namely defendant No. 4 having not signed the agreement, the same is not fatal to the suit seeking specific performance of contract and the remaining defendants were to be directed to execute the sale deed and the property being a joint family

property, at the stage of partition, the property could be adequately distributed amongst the co-sharers. The entire joint property is 4 kathas and it is only a small portion of the property consisting 120 sq.ft. which was to be sold in terms of the agreement. The learned counsel has referred to the 1st Appellate Court's judgment and has submitted that though the Appellate Court has not excluded defendant No. 4 from executing the agreement but the Appellate Court has considered the evidence on record and has found that the agreement was also binding on defendant No. 4.

11. With respect to readiness and willingness to perform the part of the agreement by the purchaser (plaintiff), the learned counsel has referred to the plaint and has submitted that specific averment was made in paragraphs-3,4,5 and 6 with regard to readiness and willingness. The said paragraphs are quoted as under:

"(3) That, the plaintiff orally expressed his willingness to make the payment of balance consideration money to the defendants in order to accomplish the execution of the sale deed.

(4) That, the defendants started evading the execution/ registration of the sale deed before the Sub-Registry Office in terms of the said Sale Agreement dated 05.07.2003. (5) That, the plaintiff was/is always ready and willing to pay the balance consideration money to the Vendors and execute the Sale Deed.

(6) That, the cause of action for the present suit arose on 05.07.2003 and the various dates when the plaintiff expresses his willingness to make the balance consideration money and still continue."

12. The learned counsel has submitted that no legal notice as such was given by the plaintiff with regard to specific performance of contract but the plaintiff had deposed before the Court with respect to readiness and willingness to perform his part of the contract.

13. He has further submitted that the case of plaintiff as well as defendants is to be taken together and it was the specific case of the defendants that there was no agreement to sell and the amount

mentioned to have been paid in the agreement was returned to the plaintiff. He has submitted that it was never the case of the defendants that the defendants were ready and willing to perform their part of the contract. The learned counsel has submitted that giving the plaint and the written statement and facts and circumstances of the case, the learned Appellate Court has rightly come to a conclusion that the plaintiff was ready and willing to perform his part of the contract. He has submitted that once a substantial amount to the extent of 70% with respect to the suit property was already paid, the learned Appellate Court has rightly drawn a conclusion that there could be no reason for no willingness and readiness to pay the remaining balance amount and the said finding which has been recorded by the learned 1st Appellate Court cannot be said to be perverse. He submits that findings of readiness and willingness has been recorded on the basis of material on record and such findings do not call for any interference.

14. However, it has been observed by this court during the course of arguments and placement of the plaint and evidence on record, the averments and also the evidence regarding readiness and willingness does not reflect any date on which the purchaser (plaintiff) had taken steps to show his readiness and willingness to execute the sale deed or the dates on which the purchaser (plaintiff) had approached the defendants for the purposes of execution of the sale deed. Admittedly, the date of agreement is 05.07.2003, the sale deed was to be executed within 2 months from the date of the agreement and the suit was filed on 06.04.2005.

15. The arguments of the parties have concluded.

16. Post this case for further dictation on 24.03.2025 at 02:15 P.M.

(Anubha Rawat Choudhary, J.) Kunal/-