Delhi District Court
Smt. Raj Rani vs Rca Dj No. 17/2016 20325/16 on 17 August, 2023
1
IN THE COURT OF MS. TWINKLE WADHWA:
ADDITIONAL DISTRICT JUDGE 04 - SOUTH EAST
DISTRICT, SAKET COURTS, NEW DELHI.
In the matter of:
RCA DJ No. 17/2016 20325/16
1. Smt. Raj Rani
W/o Late Sh. J.K. Khanna
2. Sh. J.K. Khanna
(since deceased)
Through his legal heirs.
i) Smt. Raj Rani (Appellant No. 1)
ii) Sh. Chandan Khanna
S/o Late Sh. J.K. Khanna
iii) Smt. Shanoo Arora
D/o Late Sh. J.K. Khanna
iv) Smt. Angel Malhotra
D/o Late Sh. J.K. Khanna
v) Smt. Astha Dutt
D/o Late Sh. J.K. Khanna
All R/o E-42,
Greater Kailash Enclave-V,
New Delhi
........Appellants
VERSUS
RCA DJ No. 17/2016 20325/16
Raj Rani & Ors. Vs. Vijay Rani & Ors.
RCA DJ No. 18/2016 20324/16
Mohammad Yusuf Vs. Vijay Rani Anr.
2
1. Smt. Vijay Rani
W/o Sh. Gulshan Lal
R/o B-1/42, Second Floor,
Sewak Park, Dwarka More,
New Delhi.
2. Sh. Mohammad Yusuf
S/o Sh. Ghazeta
R/o RZ-2947/33,
Tuglakabad Extension,
New Delhi.
Also at:-
A-557, Kalkaji,
New Delhi.
........Respondents
Date of institution of suit : 30.03.2016
Orders reserved on : 01.08.2023
Judgment announced on : 17.08.2023
Final Decision : DISMISSED
AND
In the matter of
RCA DJ No. 18/2016 20324/16
Mohammad Yusuf
S/o Sh. Ghazeta
R/o RZ-2947/33,
Tuglakabad Extension,
New Delhi
RCA DJ No. 17/2016 20325/16
Raj Rani & Ors. Vs. Vijay Rani & Ors.
RCA DJ No. 18/2016 20324/16
Mohammad Yusuf Vs. Vijay Rani Anr.
3
Also at:-
A-557, Kalkaji,
New Delhi ........Appellants
VERSUS
1. Smt. Vijay Rani
W/o Sh. Gulshan Lal
R/o B-1/42, Second Floor,
Sewak Park, Dwarka More,
New Delhi.
2. Smt. Raj Rani
W/oLate Sh. J.K. Khanna
3. Sh. J.K. Khanna
(since deceased)
Through his legal heirs.
i) Smt. Raj Rani
ii) Sh. Chandan Khanna
S/o Late Sh. J.K. Khanna
iii) Smt. Shanoo Arora
D/o Late Sh. J.K. Khanna
iv) Smt. Angel Malhotra
D/o Late Sh. J.K. Khanna
v) Smt. Astha Dutt
D/o Late Sh. J.K. Khanna
RCA DJ No. 17/2016 20325/16
Raj Rani & Ors. Vs. Vijay Rani & Ors.
RCA DJ No. 18/2016 20324/16
Mohammad Yusuf Vs. Vijay Rani Anr.
4
All R/o E-42,
Greater Kailash Enclave-V,
New Delhi ........Respondents
Date of institution of suit : 30.03.2016
Orders reserved on : 01.08.2023
Judgment announced on : 17.08.2023
Final Decision : DISMISSED
JUDGMENT
1. Vide this judgment this Court shall decide two appeals titled as Raj Rani and Ors. Vs. Vijay Rani and Ors. and another appeal titled as Mohd. Yusuf Vs. Vijay Rani and Ors. The present appeals are filed by appellant/ defendants (in main suit) against the impugned judgment/decree dated 10.02.2016.
2. Brief Facts of the Case The brief facts of the case as are culled out from the judgment of the Ld. Trial Court are as follows:-
"1. Initially, the present suit was filed against the defendant no. 1 and 2 but later, an application was moved under Order 1 Rule 10 CPC which was allowed vide order dated 19-03-2004 and Mohd. Yusuf was impleaded as defendant no.3.
2. The brief facts, as per averments of the amended plaint, are that in the 3rd week of October 1997, the defendants approached the plaintiff for sale of shop in House No. A-557, Kalkaji, New Delhi which is owned by defendant no. 1 and is in her physical possession as owner thereof as claimed by her and bargain was struck for a sum of Rs. 25,000/and as per directions of defendant no. 1, the plaintiff paid the same by means of bank draft issued by Indian Overseas Bank, Golf Links Branch, New Delhi dated 27-10-1997 in favour of RCA DJ No. 17/2016 20325/16 Raj Rani & Ors. Vs. Vijay Rani & Ors.
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defendant no. 2 as full and final payment in respect of the shop in question, as shown in red colour in the site plan attached with the plaint against receipt which is in the form of Agreement to Sell. That entire sale-consideration of Rs. 25000/as settled between the parties was received by the defendant no. 1 from the plaintiff and nothing is payable by the plaintiff. That defendant no. 1 was to deliver vacant physical possession of the shop in question to the plaintiff and to execute necessary papers in respect thereto on the evening of 27thOctober 1997 but inspite of receipt of entire sale consideration, defendant no. 1 failed to deliver the vacant physical possession of the shop in question to the plaintiff and also did not execute necessary title deed for the execution of sale-deed in favour of the plaintiff or her nominee. That the plaintiff was constrained to issue notice upon the defendant no. 1 through her counsel dated 04-11-1997 under registered AD cover but defendant no. 1 maliciously avoided to receipt the Same and in these circumstances, plaintiff got issued another notice upon the defendant no. 1 requesting her to deliver the possession of the shop in question and to execute necessary documents for the execution of Sale-deed on 15-11-1997.
2 That plaintiff has prayed for a decree of specific performance of the agreement to sale which is in the form of receipt and agreement dated 27-10-1997 in favour of the plaintiff by directing the defendants to deliver possession of the shop in question as shown in red colour in the site plan attached with the plaint forming part of house No. A-557, Kalkaji, New Delhi to the plaintiff and defendant nos. 1 and 2 to execute necessary documents for the execution of sale-deed.
4. WS was filed on behalf of defendant nos. 1 and 2 in compliance of the order dated 28-01-1999 wherein it is stated that the plaintiff with pre-calculated mind and intention, wants to grab the property of the poor defendants as the property in question is under the possession of the tenant and the tenant was paying rent @ Rs.1500/p.m. and knowing this fact that the money is required for the treatment of the defendant no. 1, the husband of the plaintiff approached the defendants and entered for the sale of the only shop No. A-557, Double Storey, Kalkaji, New Delhi for total consideration of Rs.3.25 lacs and brought a bank draft for a sum of Rs.25,000/dated 27-10-1997 along with one receipt which was purported to be signed by Smt. Raj Rani-defendant no. 1 and same was got signed from the defendant no. 2-Sh. Jagdish Khanna without reading the full contents of the same and also got attested by the defendant no. 1 and after giving draft, he got the signature of the RCA DJ No. 17/2016 20325/16 Raj Rani & Ors. Vs. Vijay Rani & Ors.
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defendant no. 2 and attested by defendant no. 1 without going through the contents of the same. However, immediately, it was transpired that the bank draft was in the name of defendant no. 2 and thereafter, the same was taken back by the plaintiff with the assurance that he shall bring another draft in the name of defendant no. 1 but he never turned-up. That the alleged receipt having no value as no such agreement was arrived as no consideration amount was ever been paid/ received and even agreement is void and receipt is no receipt in the eyes of law and same is without consideration and the suit filed by the plaintiff is liable to be dismissed. That it was well within the knowledge of the plaintiff's husband that the shop in question was under the possession of the tenant and as per the agreement, in the presence of the husband of the plaintiff, part payment was to be paid to the tenant so she will deliver the possession of the shop in question to the defendants and same shall be delivered at the time of full and final consideration amount within a period of one week failing which the said agreement shall stand cancelled and knowing this fact, the plaintiff made manipulation and prepared forged and fabricated receipt. That during the pendency of the case tenant Ms. Ruby Rajpal also filed a suit for permanent injunction against the replying defendants and the Id. Court has already passed the restrained order against the replying defendants that the defendants should not take the forcible possession in respect of the premises under the possession of tenant Ruby Rajpal and the matter is subjudice before the Ld. Civil Judge, Delhi. That the market value of the shop in question at the time of alleged agreement was around Rs.3.25 lacs and no sane person would like to sell such a valuable shop for just meager amount of Rs.25,000/as alleged by the plaintiff. Other averments of the plaint have been denied as wrong.
5. Replication filed to the WS of defendants nos.1 and 2 wherein averments of the plaint have been reiterated and reaffirmed and averments made in the WS have been denied as wrong.
6. WS was filed on behalf of defendant no. 3 wherein in preliminary objections it is stated that the answering defendant is a bonafide purchaser of the suit property which was purchased by him after making the entire sale-consideration amount to its previous owner Smt. Raj Rani and sale-deed was executed after receiving the full and final sale consideration amount from him and the same was duly registered and the shop in question was earned by him from his hard-earned money and he is in exclusive possession of the shop in RCA DJ No. 17/2016 20325/16 Raj Rani & Ors. Vs. Vijay Rani & Ors.
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question. Hence, the suit is not maintainable and liable to be dismissed. On merits, all the averments of the plaint have been denied as wrong.
7. Replication filed to the WS of defendant no. 3 wherein averments of the plaint have been reiterated and reaffirmed and averments made in the WS have been denied as wrong."
Grounds of Appeal/ Arguments of Ld. Counsel on behalf of Smt. Raj Rani/appellant.
3. It is argued by Ld. Counsel for appellant that as per Law, bayana received cannot be termed as agreement to sell. Further the receipt dated 27.10.1997 was entered into between Vijay Rani and husband of Raj Rani namely Jagdish Khanna. It is further argued that Raj Rani was only a witness to this receipt of money.
4. It is further argued that as per legal notice Ex.
PW1/11 placed by plaintiff on record, it is mentioned therein that the agreement was entered into between Vijay Rani and Raj Rani and not between Vijay Rani and Jagdish Khanna.
5. It is submitted that the demand draft which is mentioned in the receipt dated 27.10.1997 Ex. PW1/1 was never received by Raj Rani. The said demand draft was made in the name of 'Jagdish Khanna', but it was deliberately wrongly made by mentioning incorrect spelling by the name of 'Jagdish Khana'. Attention of the Court is drawn to Ex. PW1/15 which is receipt for making of the demand draft placed on record by plaintiff RCA DJ No. 17/2016 20325/16 Raj Rani & Ors. Vs. Vijay Rani & Ors.
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8Vijay Rani herself. It is submitted a perusal of this receipt would show that the spelling of the name 'Khanna' is incorrectly mentioned as 'Khana'. It is submitted that it is specifically denied by Raj Rani that she has received any consideration as the demand draft was returned. Hence no payment has ever been received by Raj Rani in this case. Hence in the absence of any consideration, agreement cannot be enforced. It is further argued that it is specifically denied by Raj Rani in her WS that she has not received Rs. 25,000/- and the onus was on plaintiff to prove but plaintiff has failed to prove that she has made payment of Rs. 25,000/- to Raj Rani.
6. It is further argued that validity of the draft was only three months, hence it could not have been encashed thereafter. It is further argued that it could not have been encashed being in wrong name. It is further argued by Ld. Counsel for appellant that the Order 39 Rule 1 and 2 CPC application filed by plaintiff was dismissed by the Ld. Trial Court as the possession was not with Raj Rani and the possession was with one tenant.
7. It is further argued by Ld. Counsel for appellant that the property stands in the name of Raj Rani while the draft was in the name of her husband Jagdish Khanna who is not the owner, hence it was returned. It is further argued that in the cross-examination of Vijay Rani dated 07.05.2012, it was specifically asked from her, if she enquired from her banker if the demand draft was encahsed or not and she RCA DJ No. 17/2016 20325/16 Raj Rani & Ors. Vs. Vijay Rani & Ors.
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9said that she did not enquire. It is submitted that plaintiff did not lead any evidence to show that payment of Rs. 25,000/- was deducted from her account.
8. It is submitted that plaintiff has to stand on her own feet. It is further argued that the husband of Raj Rani namely Jagdish Khanna was examined by the Court under section 10 on 21.02.2002. It is specifically mentioned by the appellant that they have not received Rs. 25,000/- and hence they have already sold property to one Mohd. Yusuf, who is in possession of the same. It is submitted that Smt. Raj Rani sold this property in good faith and Mohd. Yusuf is a bonafide purchaser of this property. He paid entire consideration and is the owner of this property.
9. It is argued that since Raj Rani had never received the consideration amount, the onus was on plaintiff to prove that they had always been ready and willing to perform their part of the contract and are ready to hand over the consideration amount to Raj Rani but no evidence is lead by plaintiff regarding the same. It is further submitted that it is not even pleaded in the plaint.
10. It is further argued by Ld. Counsel for appellant that during cross-examination of appellant and her husband they have denied that they have received Rs. 25,000/-. It is stated by DW1 that he did not accept the draft. It is also mentioned by Raj Rani that draft was returned. It is also argued by Ld. Counsel for appellant that in the agreement entered into between Raj Rani and Mohd. Yusuf, it is also RCA DJ No. 17/2016 20325/16 Raj Rani & Ors. Vs. Vijay Rani & Ors.
RCA DJ No. 18/2016 20324/16 Mohammad Yusuf Vs. Vijay Rani Anr.
10mentioned therein that the possession is with tenant and only symbolic possession was handed over to Mohd. Yusuf.
11. It is also argued by Ld. Counsel for appellant that as per pleadings on record, Raj Rani had already sold this property to Mohd. Yusuf vide GPA, Will, receipt etc. However plaintiff has not sought any declaration qua these documents to be declared as null and void.
12. Further as per amended plaint, only specific performance is sought without the relief of possession. It is submitted that the simplicitor suit for specific performance of contract of sale of immovable property without seeking possession is not maintainable. It is further submitted that registration of property documents was made mandatory in Delhi w.e.f. 01.09.2001 in view of the judgment of Suraj Lamp & Industries (P) vs State Of Haryana & Anr [2009 (7) SCC 363] [Special Leave Petition (C) No.13917 Of 2009]. Hence the documents were not required to be registered.
Arguments of Ld. Counsel for respondent/ plaintiff
13. It is the argument of Ld. Counsel for respondent that the receipt placed on record is a complete agreement in itself. It is submitted that whatever is written in document is deemed to be correct and if a party pleads otherwise, the onus is on the said party to prove the same.
RCA DJ No. 17/2016 20325/16 Raj Rani & Ors. Vs. Vijay Rani & Ors.
RCA DJ No. 18/2016 20324/16 Mohammad Yusuf Vs. Vijay Rani Anr.
1114. It is submitted by Counsel that in the amended written statement filed by appellant, it is mentioned by them that total sales consideration is Rs. 3 lacs 25 thousand but in appeal a different ground is taken. In the written statement, they admit receipt and signature. It is submitted that the defence set up in arguments that receipt bears a name of 'Jagdish Khana' and not 'Jagdish Khanna' was never taken before Ld. Trial Court and was set up for the first time before this Court.
15. It is further submitted that it is mentioned in the amended written statement that demand draft was found to be in the name of husband Jagdish Khanna and not wife and hence it was returned to get it made afresh in the name of Smt. Raj Rani. However here the defence taken during arguments is that it was returned as the name was incorrect. It is further argued that the defence taken by appellant is that agreement is with Sh. Jagdish Khanna, consideration was in name of Jagdish Khanna while actual owner is wife and there is no agreement with wife. However the Counsel has pointed out that husband was ostensible owner of the property.
16. It is further argued that it is not stated by appellant anywhere in the appeal that Rs. 25,000/- was not the total sale consideration, rather it is nowhere pleaded in the appeal that total sale consideration was Rs. 3,25,000/-, hence there are made up defences taken by appellant before Ld. Trial court and before this Court. It is further RCA DJ No. 17/2016 20325/16 Raj Rani & Ors. Vs. Vijay Rani & Ors.
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12argued that appellant had concealed the fact from Ld. Trial Court that he had sold this property during pendency and the application filed by respondent to implead new purchaser was dismissed in 2002. Later on in 2004, on the statement of Sh. Jagdish Khanna, it came to the knowledge of the Court that the property has been passed on to third party after which stay was granted in their favour.
17. It is argued by Ld. Counsel for respondent that in the order dated 01.06.2000, it was observed by Ld. Predecessor of this court that bank draft was prepared and handed over to the respondent/ appellant. It has reached out of the hands of plaintiff and plaintiff had no control over what happened to the draft.
18. It is further argued that right to cross-examine plaintiff's witness was closed vide order dated 12.08.2005 and it was never reopened. Hence plaintiff's witness was not cross-examined by defendant (in this case only witness was cross-examined by DW3). It is argued by Ld. Counsel for respondent that the receipt is admitted by Smt. Raj Rani and she never raised objection to this despite receiving legal notice by the plaintiff. No objections were raised to it till filing of the written statement.
19. It is argued that though it is the case of appellant that the total sale consideration was Rs. 3,25,000/- but in receipt it is mentioned only as Rs. 25,000/-, yet no police complaint was filed by Smt. Raj Rani. Further if she had any grievance, she could have issued any legal notice RCA DJ No. 17/2016 20325/16 Raj Rani & Ors. Vs. Vijay Rani & Ors.
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13which she did not.
20. It is argued that it is the case of Smt. Raj Rani that the total sale consideration is Rs. 3,25,000/- but in cross- examination she stated that she sold this property for more than Rs. 1 lac. It is argued that it is stated by Sh. Jagdish Khanna in the plaint that he had not read document while Smt. Raj Rani stated in the cross that she signed it as she was under the influence of medication.
21. It is argued that Sh. Jagdish Khanna has admitted in cross that the total sale consideration was Rs. 25,000/- and not Rs. 3,25,000/-. It is argued that Sh. Jagdish Khanna in cross stated that total sale consideration was Rs. 3,50,000/- which is in contradiction with the stand taken by his wife Smt. Raj Rani.
22. It is argued that Sh. Jagdish Khanna had stated that the property was sold to Mohd. Yusuf for Rs. 3,50,000/-. Smt. Raj Rani stated that it was for more than Rs. 1 lac while the document on record would show that it is only for Rs. 1 lac. It is submitted that the value as depicted by Sh. Jagdish Khanna/ Smt. Raj Rani to be Rs. 3,50,000/- is false as according to the documents of Mohd. Yusuf placed on record, the property was sold only for Rs. 1 lac and the value of the property was never Rs. 3,25,000/-. It is further argued that Mohd. Yusuf says that he purchased it for Rs. 1.70 lacs. It is argued by Ld. Counsel that they have valued the suit at Rs. 25,000/- which is the agreed amount as mentioned in the receipt and have paid court fee on the RCA DJ No. 17/2016 20325/16 Raj Rani & Ors. Vs. Vijay Rani & Ors.
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14said amount. It is argued by Counsel that there is a written proof on record that I had handed over them demand draft while the averment is made verbally by appellant that the demand draft was returned. There is no proof filed that demand draft was returned by appellant. It is argued by Counsel that the definition of 'consideration' as is mentioned in the judgment of Regional Provident Fund Commissioner Vs. Shiv Kumar Joshi passed by Hon'ble Supreme Court of India is that it is benefit of one party and loss to the one party. It is submitted that once demand draft was got prepared and money has gone out of the hands of plaintiff there is a loss of money to him and this is sufficient consideration.
23. It is submitted that one application under Section 151 CPC was filed on record by appellant in December, 2017. This application filed in this appeal along with reply to the RTI application. It is submitted that as per the response received by appellant under RTI from the bank, an amount of Rs. 25,000/- is still lying unclaimed with the bank, hence there is loss of amount to the plaintiff which is sufficient consideration in the present matter.
24. It is argued by Ld. Counsel for respondent that once the execution of agreement is proved by plaintiff, nothing further is required to be proved by plaintiff and it is submitted execution of the receipt is proved by the plaintiff.
RCA DJ No. 17/2016 20325/16 Raj Rani & Ors. Vs. Vijay Rani & Ors.
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1525. It is argued by Counsel that in a suit for specific performance of contract for immovable property, plaintiff was not required to deposit the entire amount in court. As per section 16 (c), the plaintiff is only required to prove that there is sufficient amount in his possession for the purpose of agreement and it is submitted that in this case, the draft of the entire amount was already handed over to the plaintiff which shows sufficient consideration.
Arguments in Rebuttal by Appellant
26. It is argued by Ld. Counsel for appellant that the receipt is signed by husband of Smt. Raj Rani while Smt. Raj Rani is witness. It is submitted that when Principal was available, it is not explained by defendant why they entered into contract with agent, while the Principal was signing as witness.
27. It is further argued that mere preparation of draft is not sufficient as the limitation of draft is three months only and money does not reaches hand of appellant. Further respondent is not entitled to get the demand draft encashed after three months.
28. It is argued by Ld. Counsel for appellant that a perusal of the receipt would show that it does not mention handing over of the possession and only mentions about payment of money. Hence it is submitted that the receipt cannot be construed as agreement as it does not mention about possession. Attention is drawn to section 55 (2) of Transfer of Property Act. It is argued by Ld. Counsel for RCA DJ No. 17/2016 20325/16 Raj Rani & Ors. Vs. Vijay Rani & Ors.
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16appellant that in this case, since possession was not handed over, hence contract was not complete. It is further argued that if the entire payment had already been made by the defendant as alleged, then why only receipt was executed instead of sale deed.
29. It is argued that as perusal of the legal notice sent by defendant to the appellant would show that appellant has been asked to hand over the possession. While possession is not mentioned in the receipt, hence it was not part of the agreement. It is submitted that agreement was not complete and was an inchoate contract.
30. It is argued that the plaintiff has to stand on its own feet and onus was on them to prove their case. Taking benefit of weaknesses of the defendant's case, they cannot prove their own case. It is argued that it was for the defendant to prove consideration and that the draft could have been encashed. However it is submitted that the draft could not have been encashed. It was prepared in the name of 'Khana' and not 'Khanna'. It is argued that it is not proved by defendant that the draft was encashed or could have been encashed.
31. It is submitted that the initial burden was on plaintiff to prove their case and it was wrongly observed by Ld. Trial Court that the burden was otherwise. It is further argued that only because plaintiff's witness was not cross- examined, cannot be read against appellant. The plaintiff has to prove its own case and stand on its own feet.
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1732. I have heard both the sides and gone through the record.
Findings of the Court
33. It is admitted case of both the parties that they had entered into some talks for the purpose of sale of suit property of Smt. Vijay Rani. It is admitted by Smt. Raj Rani and her husband Sh. J.K. Khanna in their cross- examination that they have put their signatures on this receipt. This receipt contains certain terms and conditions and certain matter of fact are recorded therein. It is a signed document which is admitted by Smt. Raj Rani and her husband, though contents are denied. It is their claim that it was signed by them without reading. It is also stated by Smt. Raj Rani that she signed under medication.
Receipt dated 27.10.1997
34. According to section 91 of Indian Evidence Act, 1872 when the terms of the contract have been reduced to the form of a document, no evidence shall be given in proof of terms of such contract except the contract itself. Section 92 of Indian Evidence Act lays down that when the terms of the contract have been reduced into writing, no oral evidence shall be admitted as to proof of its contents. Hence to come to a conclusion regarding the terms of contract between the parties, it is the contents of the signed agreement which have to be looked into which is in writing. Hence this receipt was duly executed between the parties and it contains the terms which were agreed RCA DJ No. 17/2016 20325/16 Raj Rani & Ors. Vs. Vijay Rani & Ors.
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18between the parties.
Receipt is Agreement to Sell or Not
35. The next question for consideration is whether this document i.e. receipt dated 27.10.1997 is an agreement to sell or not. It is the observation of Ld. Trial Court that this receipt dated 27.10.1997 is an agreement to sell which was duly executed by and between the parties. However it is the argument of Ld. Counsel for appellant that this is not an agreement to sell and is a mere receipt only which was signed without reading it. Further it is argued that if it is an agreement to sell, it is neither registered nor stamped. However an agreement to sell does not require compulsory registration nor is it required to be on a stamp paper if not registered.
36. This receipt mentions the consideration of Rs.
25,000/-, it mentions the details of the property, it mentions the details of the demand draft issued in the name of Sh. J.K. Khanna. It further mentions that Sh. J.K. Khanna has accepted consideration on behalf of his wife Smt. Raj Rani. It bears signature of both Smt. Raj Rani and her husband. Both Sh. J.K. Khanna and Smt. Raj Rani admitted their signatures on this receipt. Hence all the essential ingredients which are required to be mentioned in an agreement to sell are already mentioned in this receipt dated 27.10.1997. Hence this receipt is an Agreement to Sell itself.
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1937. It is stated by Ld. Counsel for appellant Smt. Raj Rani that this receipt cannot be termed as Agreement to Sell. It was observed by Hon'ble Delhi High Court in Sobhag Narain Mathur v. Pragya Agrawal [227 (2016) DLT 511] that :
"8. In a contract for sale of an immovable property i.e. an agreement to sell entered into i.e. the sale deed of an immovable property to be entered into in future, four essential ingredients have to exist and they are. Who are the parties to the agreement has to be clear, what is the subject matter of the agreement to sell has to be clear and what is the total price has to be clear including fourthly as to how the total price is payable i.e. whether in lumpsum in advance or partly in advance and partly at the time of execution and registration of the sale deed, etc. Besides these aspects, it is also relevant to note that the document in question cannot be said to be an agreement as per the intention of the parties because the parties had intended a formal document to be entered into which only would be the actual contract between the parties. In such circumstances, a Court has to examine whether the document which is relied upon was intended by the parties to be a final contract in itself. This is being stated because in some cases an agreement may be complete in itself as required by law and still the parties may state that a formal agreement has to be entered into and in such case even if a formal agreement is not later on entered into. Courts have still held that the original agreement which is complete in itself is an agreement to sell which can be enforced in law by filing a suit for specific performance. However, where the facts and circumstances of the case as are reflected from the document itself and/or the surrounding circumstances or actions of the parties show that the original agreement which talks of entering later into an agreement is not a complete contract in the eyes of law, then, Courts will have to hold that contract between the parties has not been concluded because there is no consensus ad idem including on the aspects as to the minimum requisite terms for completing an agreement to sell. To complete the narration, it may be stated that there are various other terms which are agreed between a prospective purchaser and a prospective seller of an immovable property; in addition to the four main aspects which are stated above; but even if the other terms are not stated, law steps in and presumes that parties have agreed to those terms and which RCA DJ No. 17/2016 20325/16 Raj Rani & Ors. Vs. Vijay Rani & Ors.
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terms are specified in various sub-sections of Section 55 if the Indian Contract Act."
38. It is further argued that this receipt does not contain details viz. the time duration during which Sale Deed was to be entered into and the issue of possession. However an agreement to sell may be silent on these aspects and it cannot be rendered invalid, only because it does not contain these details.
39. Further it is argued by Ld. Counsel for Raj Rani that she has not received the consideration in this case while she is the owner of this property. The draft was issued in the name of her husband. However it is mentioned in the receipt itself that consideration was paid to her husband who received it on behalf of Smt. Raj Rani. Smt. Raj Rani had signed the receipt herself. Hence consideration was paid to her husband at the instance of Smt. Raj Rani. A consideration may be paid to an agent or any other representative at the instance owner. Smt. Raj Rani had herself signed this receipt which is admitted by her. Her conduct is evident by her signatures on this receipt that she wanted payment to be made to her husband Sh. J.K. Khanna for sale of this property. Having represented so by her conduct, she is now estopped to claim otherwise. She is estopped from pleading now that consideration is not received by her as demand draft was not in her name.
40. However this case/ receipt can be looked from a different aspect as well. If the argument of Ld. Counsel for RCA DJ No. 17/2016 20325/16 Raj Rani & Ors. Vs. Vijay Rani & Ors.
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21appellant is accepted that this receipt is not an agreement to sell and is considered to be a mere receipt only, even then this agreement is proved which is binding on the parties. It is not denied by appellants that talks with respect to sale of this property were going on. They admitted their signatures on this receipt. Hence even if this receipt is presumed to be a receipt only, it evidences that there was oral agreement between the parties with respect to the sale of suit property. In furtherance of such oral agreement to sell, this receipt was entered into between the parties. Further this receipt contains all the essential ingredients in support of such oral agreement to sell. An oral agreement to sell with respect to immovable properties is perfectly lawful and valid. Further there was an oral agreement between the parties is admitted by defendant himself in para 9 of his written statement, though it is the case of defendant that the agreement for sale of the suit property was for a different sale consideration of Rs. 3,25,000/-. Hence even if this receipt is not considered as an agreement to sell and is considered as a mere receipt only, even then the oral agreement between the parties which is corroborated by contents of this receipt on record, is proved. Needless to say, a suit for specific performance of contract of an oral agreement is also perfectly valid. It is relevant to quote here the judgment of Hon'ble Supreme Court of India titled as Aloka Bose V. Parmatma Devi and Others in Civil Appeal No. 6197 of 2000 :
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22"16. On the other hand, the observation in S.M Gopal Chetty that unless agreement is signed both by the vendor and purchaser, it is not a valid contract is also not sound. An agreement of sale comes into existence when the vendor agrees to sell and the purchaser agrees to purchase, for an agreed consideration on agreed terms. It can be oral. It can be by exchange of communications which may or may not be signed. It may be by a single document signed by both parties. It can also be by a document in two parts, each party signing one copy and then exchanging the signed copy as a consequence of which the purchaser has the copy signed by the vendor and a vendor has a copy signed by the purchaser. Or it can be by the vendor executing the document and delivering it to the purchaser who accepts it."
"17. Section 10 of the Act provides that all agreements are contacts if they are made by the free consent by the parties competent to contract, for a lawful consideration and with a lawful object, and are no expressly declared to be void under the provisions of the Contract Act. The proviso to Section 10 of the Act makes it clear that the section will not apply to contracts which are required to be made in writing or in the presence of witnesses or any law relating to registration of documents. Our attention has not been drawn to any law applicable in Bihar at the relevant time, which requires an agreement of sale to be made in writing or in the presence of witnesses or to be registered. Therefore, even an oral agreement to sell is valid. If so, a written agreement signed by one of the parties, if it evidences such an oral agreement will also be valid."
41. Hence the plaintiff/ respondent has been able to prove on record that there existed an agreement to sell between the parties which is duly proved on record.
Consideration
42. Now the consideration is disputed by defendants Smt. Raj Rani and her husband. According to them, consideration was Rs. 3.25 lacs as is mentioned in the plaint. However it has come in evidence that Smt. Raj Rani sold this property to Mohd. Yusuf at Rs. 1 lac. Mohd.
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23Yusuf says that he purchased this property for Rs. 1,70,000/-. Further Smt. Raj Rani and her husband have failed to prove on record what is the market value of this property if not Rs. 25,000/-.
43. Further value of the property being Rs. 25,000/- is mentioned in the receipt and sign is also admitted by Sh. J.K. Khanna in his cross-examination. Once the sign on receipt is admitted by Smt. Raj Rani and her husband, no oral evidence to disprove its contents is permitted in Law. Smt. Raj Rani is a graduate, B.Sc, B.Ed, hence the defence taken that they signed the receipt and did not read it before signing does not inspire confidence. The receipt dated 27.10.1997 bears the signature of both Smt. Raj Rani and Sh. Jagdish Khanna.
44. The next question to be considered is if the consideration has been paid by Smt. Vijay Rani to Smt. Raj Rani or not. The demand draft was prepared in the name of Sh. J.K. Khanna. However it is the case of Smt. Raj Rani that it was returned while it is the case of Smt. Vijay Rani that it was not returned.
45. Attention of the Court is drawn to reply to an RTI application which was obtained by Smt. Raj Rani from the bank from where this bank draft was got prepared of Rs. 25,000/-. As per the reply of this RTI, the said amount of Rs. 25,000/- is still lying with the Bank unclaimed. Hence by way of this document filed by Smt. Raj Rani herself, it is proved on record that the demand draft was got prepared RCA DJ No. 17/2016 20325/16 Raj Rani & Ors. Vs. Vijay Rani & Ors.
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24in the name of Sh. J.K. Khanna and the demand draft has not been encashed nor has it been cancelled.
46. To prove its case plaintiff Smt. Vijay Rani was required to prove that she is ready and willing to perform her part of the contract. Once she got the demand draft of the entire sale consideration made and handed it over to the appellant as is mentioned in the receipt also and it has not been cancelled, it is established on record that Smt. Vijay Rani had been ready and willing to perform her part of the contract.
47. On the other hand, it is the defendant/ Smt. Raj Rani who is denying this contract. Smt. Raj Rani never came forward to say that she is willing to accept Rs. 25,000/-. Hence she is not permitted to plead that she has not received the consideration as she has never been willing to receive the consideration. It is her case that sale consideration was Rs. 3,25,000/- which she has not been able to prove on record. Hence from the pleadings of the parties itself, it can be said that plaintiff Smt. Vijay Rani has been ready and willing to perform her part of the contract while Smt. Raj Rani has avoided in performing her part of the contract. Hence the question if the demand draft was encashed by Smt. Raj Rani or not becomes immaterial. Further it is mentioned in receipt that it was handed over to appellant.
48. It is the next argument of Ld. Counsel for appellant that the demand draft is in the name of Sh. J.K. Khana and RCA DJ No. 17/2016 20325/16 Raj Rani & Ors. Vs. Vijay Rani & Ors.
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25not Sh. J.K. Khanna. The same is objected to by Ld. Counsel for defendant Smt. Vijay Rani that this plea is taken for the first time before Ld. Appellate Court and has never been raised before. This Court is in agreement with the submissions made by Ld. Counsel for respondent. The fact that demand draft is in the name of 'Sh. J.K. Khana' and not Sh. J.K. Khanna has never been raised before Ld. Trial Court in all 20 years when the suit was pending before Ld. Trial Court. For 20 years it was not stated so in pleadings, nor in any evidence affidavit nor it was put to any witness in cross-examination. If it would have been brought before the Ld. Trial Court, the opposite party could have got a chance to explain it away as well.
49. The only presumption that can be drawn at this stage is that the draft being in the name of 'Sh. J.K. Khana' has never been a matter of dispute between parties at all. Rather the reason of non encashment of the draft has been different as it was never raised for 20 years before the Ld. Trial Court. If it would have actually been an issue between the parties, it would have come on record in 20 years but it did not, hence this argument at this stage cannot be accepted.
50. Further it is admitted by DW1/ Sh. J.K. Khanna in his cross examination that the deal was fixed at Rs. 25,000/-. He also admitted in his cross-examination that he had promised to hand over physical possession of the suit property on the date of acceptance of DD. Further it is also RCA DJ No. 17/2016 20325/16 Raj Rani & Ors. Vs. Vijay Rani & Ors.
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26admitted by DW1 in his cross-examination that he is a graduate and knows English language. D1W1/ Smt. Raj Rani admitted in her cross-examination that she is B.Sc, B.Ed. She also admits signing on the receipt as a witness. Further this receipt bears the words "full and final"
payment.
51. It is also the argument of appellant that only specific performance of contract is claimed and possession is not claimed. Hon'ble Supreme Court of India in the celebrated judgment of Hemant Gupta Vs. V. Ramasubramanian in Civil Appeal No. 2726 of 2022 held that in cases where suit is filed for specific performance of contracts for immovable property or where suit is filed for partition of immovable property, the relief of possession is inherent in it. It is pertinent to quote here the following extract :-
"20. The Division Bench of Calcutta High Court in a judgment reported as Debabrata Tarafder v. Biraj Mohan Bardhan held that "the delivery of possession is a part of the agreement between the parties in a suit for specific performance of such an agreement, the prayer for specific performance necessarily contemplates specific performance of the entire agreement including the agreement to deliver possession and an omission on the part of the plaintiff- purchaser to make an express prayer in that regard would not necessarily bring in the bar under subsection (2) of Section 22 of the Specific Relief Act."
" 25. A perusal of the aforesaid judgments would show that relief of possession is ancillary to the decree for specific performance and need not be specifically claimed. That was the position even under the Specific Relief Act, 1877. Section 22 of the Act was introduced in pursuance of the recommendation of the Law Commission to avoid multiplicity of proceedings and to cut down the delay. Therefore, though the preponderance of judicial opinions under RCA DJ No. 17/2016 20325/16 Raj Rani & Ors. Vs. Vijay Rani & Ors.
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the Specific Relief Act, 1877 was in favour of the fact that relief of possession is ancillary to the decree for specific performance, it was further clarified by introducing Section 22 of the Act."
"30. The defendant in terms of the agreement is bound to handover possession of the land agreed to be sold. The expression "at any stage of proceeding" is wide enough to allow the plaintiffs to seek relief of possession even at the appellate stage or in execution even if such prayer was required to be claimed. This Court in Babu Lal has explained the circumstances where relief of possession may be necessary such as in a suit for partition or in a case of separate possession where the property conveyed is a joint property. In the suit for specific performance, the possession is inherent in such suit, therefore, we find that the decree-holders are in fact entitled to possession in pursuance of the sale deed executed in their favor."
52. It is argued by Ld. Counsel for Smt. Raj Rani that Smt. Raj Rani did not receive any consideration and did not sign any agreement to sell. Hence this receipt is not binding on her which she signed only as witness. However signatures on this receipt is admitted by Smt. Raj Rani. It is specifically mentioned in this receipt that money towards full and final payment is being made to her husband Sh. J.K. Khanna. This clearly shows that at the direction of Smt. Raj Rani money was paid to her husband. Further a witness is a person who witnesses the act which has taken place in front of him. Hence Raj Rani knew about this transaction which was going on with respect to suit property in furtherance of which she signed on the receipt though as a witness only. She is confirming party to the transaction.
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2853. Further as per section 41 of the Transfer of Property Act, when a person acts on the express or implied consent of another person, person who acts on such consent is ostensible owner of the property. Smt. Raj Rani signed this receipt wherein consideration was received by her husband on her behalf. By way of her conduct, she had given clear impression that money was to be received by her husband on her behalf. Smt. Raj Rani is now estopped from going back on the representation made by her. She has represented to the plaintiffs that her husband is authorized to receive the consideration on her behalf by way of signing on this receipt. She is now estopped from going back of the representation made by her. It was on her representation that draft was made in the name of husband of plaintiff/ Sh. J.K. Khanna.
54. Hence once the payment was tendered by the plaintiff, plaintiff has proved that he was ready and willing to perform his part of the contract while defendant never came forward to say that he is willing to accept the consideration.
55. On the basis of the evidence before the Ld. Trial Court, the initial burden was on plaintiff to prove the execution of an agreement to sell between the parties. Plaintiff has been able to prove before the Ld. Trial Court that an agreement to sell was entered into between the parties and this receipt was entered into between the parties willingly (no matter if this receipt is considered as RCA DJ No. 17/2016 20325/16 Raj Rani & Ors. Vs. Vijay Rani & Ors.
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29receipt or agreement to sell, plaintiff has been able to prove its case either ways). The plaintiff has been able to prove that this receipt was signed by Smt. Raj Rani and her husband Sh. J.K. Khanna. It is proved that consideration was Rs. 25,000/-. Plaintiff has been able to prove that he got prepared the demand draft of Rs. 25,000/- which was handed over to the defendants and the said amount is still lying with the said bank unclaimed, which proves that plaintiff had always been ready and willing to perform his part of the contract.
56. The onus was on defendant to prove otherwise which he failed to do so. He has failed to prove on record that consideration was Rs. 3,25,000/-. His argument that the receipt was signed without reading does not inspire any confidence at all. The argument that they have not received the consideration is immaterial as they never stated that they are willing to accept the consideration.
57. As far as purchase of property by Mohd. Yusuf is concerned, he has purchased this property pendente lite. The argument of Smt. Raj Rani that since there was no stay on the property, hence they have sold the same does not hold good in Law as such pendente lite transactions are hit by Section 52 of Transfer of Property Act. Hence Mohd. Yusuf has purchased this property with all liabilities and has stepped into the shoes of its erstwhile owners. He has not purchased any better rights in this property as compared with the erstwhile owner Smt. Raj Rani had.
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3058. As this Court is of the opinion that specific performance of agreement to sell in favour of plaintiff has to be granted in favour of plaintiff, hence the sale deed in favour of Mohd. Yusuf by Smt. Raj Rani automatically gets nullified.
59. In view of above, plaintiff has been able to prove its case against the defendant/ appellant. The relief part of the judgment of Ld. Trial Court is directed to be complied with from the date of this judgment. The appeal being without any merits is hereby dismissed.
60. A copy of this order be sent to Ld. Executing Court along with Trial Court Record, if any.
61. Appeal file be consigned to Record Room.
Announced in open Court on 17.08.2023 (TWINKLE WADHWA) ADJ-04/South-East, Saket Courts, New Delhi/17.08.2023 RCA DJ No. 17/2016 20325/16 Raj Rani & Ors. Vs. Vijay Rani & Ors.
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