Punjab-Haryana High Court
Om Parkash vs Babu Ram Etc on 24 January, 2023
RSA No.3254 of 2014 (O&M) and
RSA No.2531 of 2014 (O&M) 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Sr. No.206 Date of Decision: 24.01.2023
1) RSA No.3254 of 2014 (O&M)
Om Parkash Shankla .... Appellant
Versus
Babu Ram and others ... Respondents
2) RSA No.2531 of 2014 (O&M)
Om Parkash Shankla .... Appellant
Versus
Babu Ram and others ... Respondents
CORAM: HON'BLE MR. JUSTICE TRIBHUVAN DAHIYA
Present: Mr. Satinder Khanna, Advocate
for the appellant.
Mr. Aseem Sharma, Advocate for
Ms. Sambodhi Kasni, Advocate
for respondents No.6 and 7.
***
TRIBHUVAN DAHIYA, J.
By this common judgment, the aforesaid two appeals shall be
decided as both of them have been filed impugning the common judgment
dated 15.01.2014 passed by the lower appellate Court.
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RSA No.3254 of 2014 (O&M) and
2. These are plaintiff's appeals in a suit for delivery of possession
by way of specific performance of the agreement to sell dated 20.01.2003,
for setting aside that part of the impugned decree which provides for refund
of the earnest money.
3. The facts of the case in brief are, the appellant/plaintiff
(hereinafter referred to as the 'plaintiff') filed a suit for delivery of possession
by way of specific performance of an agreement to sell entered into with the
respondents/defendants (hereinafter referred to as the 'defendants') dated
20.01.2003 for sale of a residential house measuring 32 sq.yards for a total
sale consideration of `4.5 lakh. Out of this consideration, `2.5 lakh was paid
as earnest money at the time of execution of the agreement, and an amount
of `50,000 was paid later towards the remaining sale consideration, vide an
endorsement on the rear side of the sale agreement. The sale deed was
agreed to be executed on or before 20.12.2003. When the defendants refused
to execute the sale deed and deliver possession of the property/the house, the
suit in question was filed.
4. Upon notice the defendants pleaded that they never entered into
the agreement to sell with the plaintiff as they themselves were not the
owners of the property at the time when the alleged agreement to sell dated
20.01.2003 was executed. Therefore, the agreement cannot be performed.
5. Upon completion of pleadings, the following issues were settled
by the trial court:
1. Whether the plaintiff is entitled to specific
performance of the agreement and
injunction?OPP
2. Whether the plaintiff is guilty for
concealment?OPD
3. Relief.
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6. In the evidence led, the plaintiff examined himself as PW-1 and
stated that after receiving the sale consideration, the defendants had handed
over sale deed of the house to him. He also examined the marginal witness
to the agreement to sell Kishori Lal as PW-2,who stated that both the parties
were known to him and the agreement was executed in his presence. The
original agreement was tendered as Ex.P1, apart from other documentary
evidence. The defendants, on the other hand, examined defendant No.3 Hari
Ram, who stated that they were three brothers and were co-sharers in the suit
property, which devolved upon them through natural succession on death of
their mother Mohiri Devi. He categorically denied the factum of execution
of the agreement to sell. Babu Ram himself stepped into the witness box as
DW-2 and denied execution of the agreement to sell. Amarjit Kumar,
another witness who was examined by defendants as DW-3, averred that
defendants No.1 and 2 had raised a loan to the tune of `30,000 from the
plaintiff and delivered title deed to him. The plaintiff had taken their
signatures on blank papers. Although the amount was repaid, the plaintiff
converted the said blank papers into a fake agreement to sell.
7. The trial Court while returning findings on Issue No.1 held that
two of the defendants, i.e., Babu Ram and Rupa Ram/defendants No.1 and 2
had admitted their signatures on the agreement to sell (Ex.P1) though they
averred that the same were obtained by the plaintiff on blank papers, and the
third defendant, i.e., defendant No.3 Hari Ram denied his signatures on the
ground that he did not know English and would sign only in Hindi.
Therefore, the plaintiff was held to have discharged his onus regarding
execution of the agreement to sell by the first and the second defendants
only. Accordingly, the Issue was decided in favour of the plaintiff and
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RSA No.3254 of 2014 (O&M) and
against first and second defendants only, who were directed to perform their
part of the contract by execution of the sale deed in terms of the agreement
to sell dated 20.01.2003 to the extent of their share only, i.e., 1/3rd each. On
Issue No.2, it was held that no material facts were concealed by the plaintiff,
accordingly, the issue was decided against defendants.
8. Against the judgment and decree of the trial Court dated
02.02.2012, both, the plaintiff and first and second defendant, filed appeals
before lower appellate Court, which were jointly decided by the impugned
judgment and decree dated 15.01.2014. The appeal filed by the two
defendants was dismissed except for the modification, the defendants would
be liable to pay an amount of `3 lakh with costs of the suit along with
interest at the rate of 9% per annum from the date of advancement of the
amount till the date of passing of the decree and 6% per annum thereafter till
recovery. The plaintiff's appeal was allowed by granting the alternative
relief of recovery of `3 lakh with costs along with interest at the rate of
9% per annum from the date of advancement of the amount till the date of
passing of the decree and at the rate of 6% thereafter till recovery.
9. The lower appellate Court held that initially the defendants
denied execution of the agreement to sell altogether and also passing of any
sale consideration, but in the evidence, a totally different version was given
by them that signatures of the first and second defendants were obtained on
blank papers on account of some financial transactions which were later on
converted into the agreement to sell (Ex.P1). There was no evidence qua any
financial transaction on record nor was there any explanation for affixing
signatures on blank papers by the first and second defendants. On the other
hand, there was positive evidence of execution of the agreement and passing
of sale consideration thereupon. Even if some documents were produced by
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the third defendant to prove that he used to affix signatures in Hindi, that in
itself was not sufficient to disprove execution of the agreement. All the three
defendants, who are brothers, filed a joint written statement, and no financial
dealings to establish their signatures having been obtained on blank papers
could be proved on record. Therefore, there was no reason to believe that the
agreement in question was not signed or executed by the third defendant.
Findings of the trial Court to the contrary were found erroneous, and the
agreement to sell (Ex.P1) was held duly proved to have been executed by the
defendants on receipt of an amount of `2.5 lakh as earnest money and
further an amount of `50,000 as part sale consideration on 27.03.2003.
10. Despite holding that the agreement to sell was validly executed,
the lower appellate Court did not decree the suit by ordering execution of the
sale deed; instead the alternative relief of recovery of earnest money was
granted on the ground that the decree for specific performance of contract
could not be enforced. The defendants only own 3/4th share in the suit
property/residential house, i.e., 1/4th each, along with their Mohiri Devi, who
owned the remaining 1/4th share. It was also observed that as per recital in
the agreement to sell (Ex.P1), the defendants were to take necessary steps
for getting the sale deed executed by successors of their mother Mohiri Devi,
who, apart from the defendants, had other legal heirs also but the same were
not impleaded as party to the suit, nor is there any evidence with regard to
inheritance and succession of the deceased Mohiri Devi.
11. Only the plaintiff has come in regular second appeal before this
Court challenging the judgment and decree passed by the lower appellate
Court in both the appeals before it, granting the alternate relief of recovery.
The defendants have not challenged the judgment and decree of the lower
appellate Court.
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12. In this background, the following substantial question of law
arises for consideration in the instant regular second appeal:
Whether specific performance of the agreement to sell,
that has been duly proved on record as having been
executed by the defendants, can be denied on account of
the defendants' failure to obtain absolute title of the suit
property?
13. It is a case where the Courts below on due appreciation of
evidence have held that the agreement to sell dated 20.01.2003 (Ex.P1) has
been duly executed between the parties with respect to the residential house
measuring 32 sq. yards. It is also an admitted fact on record, as testified by
the third defendant Hari Ram, that the three defendants were co-sharers in
the suit property to the extent of 1/4th share each. It devolved upon them
through natural succession on the death of their mother Mohiri Devi. The
recital in the agreement to sell is that the defendants are to take necessary
steps for getting the sale deed executed by successors of their mother Mohiri
Devi, who is shown owner of the house property to the extent of 1/4th share
in the record of ownership. For a suit of specific performance, the recitals in
the agreement, its due execution and passing of consideration for the
bona fide purpose are to be seen. It is the settled law that no vendor can sell
property beyond his share. At the same time, he remains bound to execute
the sale deed to the extent of his share, even if the property is joint and other
co-sharer(s) have not joined the agreement. Further, whenever the share in
property is transferred to the vendee, he has a right to seek partition and get
his share demarcated. The Court is not to go into the question of inheritance
or title of the suit property, and/or decline relief of specific performance on
that account. Issues relating to title of the suit property are beyond the scope
of specific performance of a valid agreement to sell.
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14. The law in this regard is well settled. A reference can be made
to judgment of the Supreme Court in Kammana Sambamurthy (Dead) by
LRs v. Kalipatnapu Atchutamma (Dead) and others 2011 (11) SCC 153,
wherein it was held as under:
xxx xxx xxx xxx
25. In A.Abdul Rashid Khan v. P.A.K.A. Shahul Hamid
(2000) 10 SCC 636, this Court held that
(a) "even where any property is held jointly, and once
any party to the contract has agreed to sell such joint
property by agreement, then, even if the other co-sharer
has not joined, at least to the extent of his share", the
party to the contract is bound to execute the sale deed. In
that case, the suit property originally belonged to one
Aziz Khan. On his death, his heirs under the Muslim law-
nine sons and two daughters inherited that property.
(b) The sons agreed to sell that property to the first
respondent therein. However, some dispute arose
between the parties and that necessitated the first
respondent therein to file the suit for specific
performance in which the executants of the agreement as
well as the two daughters of Aziz Khan were impleaded
as defendants.
26. It was the admitted case in Rashid Khan case that
the daughters of Aziz Khan had not joined in the
agreement of sale. The trial court dismissed the suit by
holding that the agreement was indivisible and could
only be enforced if the daughters of Aziz Khan agreed.
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RSA No.3254 of 2014 (O&M) and
The first respondent therein preferred an appeal before
the High Court against the judgment and decree of the
trial court. The High Court held that he had not pleaded
and proved that the daughters of Aziz Khan had agreed to
sell the suit property and hence, it cannot be held that the
said agreement was by all the heirs of Aziz Khan. The
two daughters of Aziz Khan were held not bound by the
agreement. However, the High Court held that insofar as
the executants of the agreement (sons of Aziz Khan) were
concerned they were bound by it and valid and
enforceable contract existed between the first respondent
and the sons of Aziz Khan. The High Court, accordingly,
granted decree for specific performance to the extent of
5/6th share which Aziz Khan's sons had in the property.
This Court affirmed the decree of the High Court and it
was held that the plaintiff's suit for specific performance
to the extent of 5/6th share was rightly decreed by the
High Court warranting no interference. While holding so,
this Court relied upon an earlier decision in Manzoor
Ahmed Magray v. Ghulam Hassan Aram, (1999) 7 SCC
27. In view of the above decisions of this Court and
the facts and circumstances which have already been
noticed by us, in our opinion, there is no impediment for
enforcement of the agreement against the vendor to the
extent of his half-share in the property.
xxx xxx xxx xxx
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15. In view of the aforesaid facts as well as the settled position in
law, there can be no hindrance in granting the decree for specific
performance of the agreement with respect to the suit property to the extent
of the three defendants' share in it, i.e., 1/4th each. The substantial question
of law stands answered accordingly.
16. The present appeals are allowed, and the suit of the plaintiff is
decreed by holding that defendants No.1, 2 and 3 shall perform their part of
the contract by execution of the sale deed in terms of the agreement to sell
dated 20.01.2003 to the extent of their share only, i.e., 1/4th each, within a
period of three months, failing which the plaintiff shall be entitled to get the
sale deed executed and registered through the process of law. The judgments
and decree of the Courts below shall stand modified to the extent
aforestated.
17. Pending miscellaneous application(s), if any, stand disposed of
as having been rendered infructuous.
18. A photocopy of this order be placed on the connected file.
(TRIBHUVAN DAHIYA)
JUDGE
24.01.2023
Maninder
Whether speaking/reasoned : Yes
Whether reportable : Yes
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