Punjab-Haryana High Court
Achhar Singh vs Smt. Gurdev Kaur And Ors. on 9 August, 2001
Author: R.L. Anand
Bench: R.L. Anand
JUDGMENT R.L. Anand, J.
1. Unsuccessful plaintiff Shri Achhar Singh, has filed the present Regular Second Appeal and it has been directed against the judgment and decree dated 5.10.1999, passed by the Court of Additional District Judge, Ludhiana, which affirmed the judgment and decree dated 7.12.1998 passed by the trial Court, vide which the suit of the plaintiff for specific performance was dismissed with costs.
2. Shri Achhar Singh is non else but the father-in-law of Smt. Ranjit Kaur and father of S/Shri Amarjit Singh, Sukhdev Singh and Tarlochan Singh, who are defendants Nos. 3,4,5 and 6 in the trial Court. It is a case of betrayal of trust which 1 will try to show from my subsequent discussion of my this judgment but at the moment, 1 may give the facts of the case leading to the present suit.
3. Defendant No.1 Smt. Gurdev Kaur through her attorney Shri Mohinder Singh, defendant No.2, entered into an agreement of sale dated 21.11.1980 regarding the plot measuring 258-1/3 sq.yards for a total consideration of Rs. 32.990/- with the plaintiff and terms and conditions were reduced into writing on the same day. The plaintiff paid a sum of Rs. 24,218/-by way of earnest money and he was to pay Rs. 8.072/- at the time of the execution of the sale deed. The plaintiff Shri Achhar Singh alleges that in pursuance of the agreement he got the possession of the plot and so much so he raised the construction over it and after sometime he paid Rs. 700/- more to Shri Mohinder Singh, defendant No.2 at his instance and after sometime defendant No.2 as attorney of defendant No.1 executed a sale deed dated 5.6.1989 in favour of defendants No.4 to 6 namely Amarjit Singh, Sukhdev Singh and Tarlochan Singh at the instance of the plaintiff.
Thereafter, the plaintiff had been calling upon defendants No.1 and 2 to execute the sale deed of the remaining portion but to no effect. Rather the matter was being delayed. It is further alleged by the plaintiff that he gave the original agreement of sale to defendant No. 4. When it was demanded from him he made an excuse that the agreement has been lost. According to the plaintiff he was always ready and willing to perform his part of the contract. He called upon defendants No. 1 and 2 to execute the sale deed of the remaining portion of the property but he was informed by defendant No. 2 that defendants No. 1 and 2 had already executed the sale deed in favour of defendant No. 3 Smt. Ranjit Kaur. Resultantly, the plaintiff called upon defendants No. 3 and 4 to admit that the second sale deed dated 9.7.1991 executed by defendants No. 1 and 2 in favour of defendant No. 3 as null and void document as they were fully aware that there was a prior agreement of sale in favour of the plaintiff and by virtue of that agreement defendants No. 1 and 2 were required to execute the sale deed with regard to the remaining portion of the plot. Since defendants No. 3 and 4 have not admitted this fact, hence the suit.
4. Notice of the suit was given to the defendants. Defendant No. 1 Smt. Gurdev Kaur and her attorney Shri Mohinder Singh, Defendant No. 2, filed a joint written statement and denied the claim of the" plaintiff. They took the preliminary objections to the effect that suit is not within limitation and the plaintiff has not come to the Court with clean hands. On merits, it was alleged that agreement dated 21.11.1980 was executed but the same was rescinded and cancelled and two sale deeds i.e. one in the names of defendants No. 4 to 6 and other in the name of defendant No. 3 have been executed.
5. Joint written statement was also filed on behalf of defendants No. 3 and 4 in which they denied the claim of the plaintiff and they took the objection that the suit of the plaintiff is barred by limitation : that the suit is barred by Benami Transaction (Prohibition) Act; that the suit for partial specific performance is not maintainable; that defendant No. 3 is a bona fide purchaser for consideration; that plaintiff has come to the Court with concealment of true facts and misrepresentation. It was also pleaded on merit by these defendants that they had paid the consideration to defendants No. 1 and 2. The plaintiff has not paid anything to defendants No. 1 and 2. The agreement dated 21.11.1980 is not subsisting nor it is executable. The sale deed dated 9.7.1991 is illegal, void and without consideration.
6. The plaintiff filed the replication to the written statement of defendants No. 1 and 2 and defendants No. 3 and 4, in which he reiterated the allegations of the plaint by denying those of the written statement.
7- From the pleadings of the parties, the learned trial Court framed the following issues :-
1. Whether the defendant No. 1 through her general attorney entered into an agreement to sell dated 21.11.1980 of the property in question in favour of the plaintiff? If so, to what effect ? OPP
2. Whether the plaintiff was and is always ready and willing to perform his part of the agreement ? OPP
3. Whether the plaintiff is entitled for the specific performance of the agreement to sell dated 21.11.1980 if so to what effect? OPP
4. Whether the suit is within limitation ? OPP
5. Whether the defendants No. 3 and 4 are the bona fide purchasers for consideration without notice of the property in question ? OPP
6. Relief.
. Parties led evidence in support of their case and on the conclusion of the proceedings it was observed by the trial Court that defendant No. 1 through her attorney defendant No. 2 entered into an agreement of sale dated 21.11.1980 in favour of the plaintiff. Issue No. 2 was decided against the plaintiff and it was observed that plaintiff was not ready and willing to perform his part of the contract. Issues No. 3 and 4 were also decided against the plaintiff and issue No. 5 was decided against the defendants. Resultantly, the suit of the plaintiff was dismissed vide judgment and decree dated 7.12.1998.
8. Aggrieved with the judgment and decree of the trial Court, plaintiff Shri Achhar Singh filed the first appeal before the Court of Additional District Judge who dismissed the appeal vide the impugned judgment and decree dated 5.10.1999.
9. The first appellate Court for the reasons given in para No. 22 of the impugned judgment dismissed the suit and the appeal on the ground of limitation and affirmed the judgment and decree of the trial Court on the ground of limitation and the reasons given by the first appellate Court in para No. 22 of its judgment, are given as follows :-
"I have considered the contentions very carefully. I am of the opinion that the dispute in the present suit is basically between the father and the sons in which defendants No. 1 and 2 have been unnecessarily dragged. Earlier sale deed about half of the plot in dispute was admittedly executed by defendants No. 1 and 2 in favour of defendants No. 4 to 6 at the instance of the plaintiff. There is no notice given by the plaintiff to defendants No. 1 and 2 after execution of the earlier sale deed on 5.6.1989 calling upon them to execute the sale deed regarding the remaining half of the plot in dispute. Defendants No. 1 and 2 had no interest whatsoever in executing the sale deeds in favour of defendants No. 3 to 6 unless desired by the plaintiff-vendee. Therefore, it can impliedly be said that since the first sale deed dated 5.6.1989 in favour of defendants No. 4 to 6 was executed at the instance of the plaintiff, he was a consenting party to the second sale deed also and it is only after relations between him and defendants No. 3 and 4 became strained afterwards that he filed the present suit. It is not possible to hold that fresh cause of action accrued to the plaintiff to file the suit on 9.7.1991 when the impugned second sale deed was executed by defendant No. 2 in favour of defendant No. 3, copy of which is Ex.PWI4/15. As per the terms of the original agreement dated 21.11.1980, the sale deed was to be executed after one month of the decision of the land Ceiling Case of defendant No. 1. It was for the plaintiff to prove at; to when this land ceiling case was decided. It was admittedly decided prior to 5.6".1989 and that is why the earlier sale deed on that date was executed by defendant No. 2 in favour of defendants No- 4 to 6. It can be said that by executing the sale deed dated 5.6.1989, defendants No 1 and 2 extended the limitation, if any, for execution of the sale deed. Thus, the cause of action for execution of the sale deed regarding the balance of the plot accrued on 5.6.1989 and the limitation started running on that date. The execution of the sale deed by defendant No. 2 on 9.7.1991 in favour of defendant No. 3, in my view, cannot be said to amount to refusal on his part or on the part of defendant No. 1 to execute the sale deed in favour of the plaintiff because if he could execute the sale deed in favour of defendant No. 3 he could also execute it in favour of the plaintiff as well. Consequently, 1 am of the opinion that the suit is clearly barred by time, taking the limitation from 5.6.1989 and as such, taking the finding of the learned trial/Court on issue No. 4 is affirmed. In the circumstances, the readiness and willingness of the plaintiff to perform his part of the contract cannot be presumed nor he is entitled to specific performance of the agreement in question. Findings on issues No. 2 and 3 are also, therefore, affirmed".
10. Not satisfied with the judgments and the decrees of the Courts below, the present appeal has been filed by Shri Achhar Singh plaintiff which was admitted by the High Court on 14.7.2000 with the order that it will be heard within one year.
11. Notice of the appeal was given to the respondents. Nobody has appeared on behalf of respondents No. 1 to 5. However, Shri Sanjeev Ghai, Advocate, has appeared on behalf of respondent No. 6.
12. I have heard Shri Amit Rawal, learned counsel appearing on behalf of the appellant and Shri Sanjeev Ghai, learned counsel appearing on behalf of respondent No. 6 and with their assistance have gone through the record of the case.
13. I may state tha: presence of respondent No. 6 through his lawyer Shri Sanjeev Ghai is only for the benefit of the appellant because Shri Tarlochan Singh respondent No. 6 would always be happy if the second sale deed 9.7.1991 is set aside.
14. As stated earlier in this judgment it is betrayal of trust by a son and daughter-in-law qua the rights of the father and I have further remarked that the plaintiff has been non-suited in this case on the ground of limitation.
15. Let us see whether the limitation survives for the benefit of the plaintiff or not. The suit in this case was filed in the trial Court on 9.6,1992. It was a suit for specific performance with regard to the execution of the sale deed of the plot measuring 129-1/2 sq. yards fully described in the head note of the plaint on payment of the balance consideration of Rs. 4,0361- and the plaintiff had further prayed that the sale-deed dated 9.7.1991 executed by defendant No. 2 as general attorney of defendant No. 1 in favour of defendant No. 3 Smt. Ranjit Kaur, be set aside being illegal, void and ab initio and if this Court holds that the suit of the plaintiff is within limitation and that defendants No. 1 and 2 are bound to execute the sale deed with regard to remaining plot measuring 129-1/3 square yards then Smt. Ranjit Kaur is also bound to join hands with defendants No. I and 2 in the sale deed which will be executed.
16. First of all, we have to determine the limitation.
17. In para No. 13 of the suit of the plaint it was alleged by the plaintiff that cause of action accrued to him on 21.11.1980 when the agreement in question was executed on 5.6.1989 when the sale deed of 129 square yards was got executed acknowledging the right of the plaintiff; on 9.7.1991 when the defendants No. 1 and 2 sold the remaining portion of land to defendant No. 3 through defendant No. 4 all fully knowing the subsistence of a valid and executable agreement dated 21.11,1980 and last week when defendants No. I to 4 refused to treat the sale deed dated 9.7.1991 as illegal, void ab initio and a nullity and not binding on the plaintiff.
18. Article 54 of the Limitation Act lays down that period of limitation for suit for specific performance of contract is three years and the time will run from the date fixed for the performance, or, if no such date is fixed, when the plaintiff has notice that performance is refused.
19. Ex.PW4/2 is the agreement of sale. The reading of the same would show that the plot measuring 258-1/3 square yards was agreed to be sold for a sum of Rs. 32,990/- out of which earnest money amounting to Rs. 24.218/- in cash was taken by the vendor and only a sum of Rs. 8,072/- was agreed to be paid before the Sub Registrar at the time of the execution of the sale deed. It was also stipulated that the vendor will get the permission from the urban land ceiling authorities and after obtaining the same, the vendee will be the sale deed executed within one month. This stipulation was added with a purpose because the property is situated in Ludhiana where the provisions of Urban Land Ceiling Act are applicable. Also it has been averred that the possession of the plot has been given to the vendee who will have the right to raise the construction. He can also get the plan sanctioned from the Municipal Corporation. He can also get the electric connection. In case the vendor does not execute the sale deed within one month after obtaining the permission from the Urban Land authorities it will be open to the vendee to file a suit for specific performance to get the sale deed executed. There is ample evidence on the record that in pursuance of this agreement the possession was taken by Shri Achhar Singh. He got the necessary connections from the Municipal Corporation and so much so he constructed the house. Defendants No. 4,5 and 6 are none else but are the real sons of the plaintiff. The intention of defendants No. 1 and 2 was clear and honest till the sale deed dated 5.6.1989 was executed by them in favour of defendants No. 4,5 and 6 at the instance of the plaintiff. These two defendants could even say to the plaintiff that they did not want to execute the sale deed in favour of defendants No. 4 to 6 because there was no privity of contract between them and defendants No. 4 and 6 but on the request made by the plaintiff the defendants No. 1 and 2 executed the sale deed of half of the plot i.e. measuring 129-1/3 square yards in favour of defendants No. 4 to 6 for consideration of Rs. 25.000/- and it is clearly mentioned in this sale deed that the possession is already with the vendee. It was also stipulated in this .sale deed that a sum of Rs. 20,964/- had already been taken and Rs. 4.036/- shall be taken at the time of the registration of the document The best part of the case is that Shri Achhar Singh is a signatory to the sale deed, meaning thereby Shri Achhar Singh was willing party and he wanted to see a fair and equitable distribution of the plot subject matter of this sale deed, in favour of his three sons. He could also get the sale deed of the entire plot registered in favour of his sons because out of total consideration of Rs. 32,9907- he had already paid Rs. 24,218/- and he was only to pay Rs. 8,072/-. Further a sum of Rs. 4,000/-was paid before the Sub Registrar but in fact Shri Achhar Singh never wanted to convey the title of half of the plot in favour of his sons for the obvious reason that he wanted to retain half of the property with him. To this extent there was no problem. Where the intention of defendants No. 3 and 4 became bad. It started subsequent to 5.6.1989. The case set up by the plaintiff is that he was always ready and willing to perform his part of the contract and this part of the case of the plaintiff stands proved because of the fact that much of the sale consideration had already passed on to defendants No. 1 and 2 at the time of the agreement of sale. Only a sum of Rs. 4,000/- was yet to be required to be paid out of the entire sale consideration. The plaintiff was a man of means. After taking the possession of the plot he raised a construction. He even got the connections of electricity and water. Now it is to be seen when the cause of action arose to the plaintiff. Up to 5.6.1989 the defendants No. 1 and 2 were accepting the advice and desire of the plaintiff. They executed the sale deed of half of the plot. Subsequently, defendants No. 1 and 2 had connived with defendants No. 3 and 4 and executed a sale deed dated 9.7.1991 at the back of the plaintiff. The question arises whether it amounts to breach of contract and whether it gives a cause of action to the plaintiff for the institution of the present suit and answer of this Court is in the affirmative which 1 will try to show hereunder.
20. As I stated above that for every sale deed a permission is required from the local authority under the Urban Land Ceiling Act and requisite proformas are filled and signatures of the vendors and vendees are obtained. If defendants No. 1 and 2 were executing the sale deed on 9.7.1991 with the consent express or implied of the plaintiff, they should have obtained the signatures of Shri Achhar Singh on those forms or they should have obtained the signatures of Shri Achhar Singh on the second sale deed dated 9.7.1991 as it was done at the time of the execution of the sale deed dated 5.6.1989. Why it was not done. The reason is obvious that defendants No. 3 and 4 wanted to betray the trust of Shri Achhar Singh plaintiff and they connived with defendants No. 1 and 2 and managed the sale deed dated 9.7.1991 fully realising that there is no privity of contract between them and defendants No. 1 and 2. One more reason is that vendors never gave a notice to Shri Achhar Singh calling upon him that they were interested to execute the sale deed with regard to the remaining area or that they had obtained the permission from the Urban Land Ceiling Authorities. In fact, defendants No. 1 and 2 for the reasons best known to them became greedy and they conveniently connived with respondents No, 3 and 4 and got the sale deed executed on 9.7.1991 and when this fact came to the notice of the plaintiff Shri Achhar Singh, he called upon the defendants No. 1 and 2 to execute the sale deed and also called upon defendants No. 3 and 4 to admit that sale deed dated 9.7.1991 is a void document. The moment this request of the plaintiff was not accepted, it will tantamount to a refusal for the purpose of Article 54 of the Limitation Act and, therefore, the cause of action will arise to the plaintiff from 9.7.1991 and if period of limitation is taken from this date, the suit of the plaintiff was well within limitation. The sale deed dated 9.7.1991 is Ex.PW4/15 on the record which clearly spells out that Shri Achhar Singh was not a signatory to this document. When defendants No. 1 and 2 had taken the approval of Shri Achhar Singh at the time of the execution of the first sale deed Mark A-1, what was the difficulty on their part in not repeating the same thing at the time of the second sale deed. Defendants No. 3 and 4 in these circumstances, cannot be held to be a bona fide purchaser. They were very much aware of the agreement of sale in favour of the plaintiff. Earlier, defendant No. 4 became the beneficiary of the first sale deed. Second time he got the sale deed in favour of his wife Smt. Ranjit Kaur. It is established on the record that the plaintiff was always ready and willing to perform his part of the contract. The execution of the agreement also stands established and accepted by defendant No. 2. This aspect of the case has not been appreciated by the Courts below which have jumped to the conclusion that the second sale deed is with the consent of the plaintiff without realising a basic fact that to the second sale deed, plaintiff is not a signatory like the first sale deed and plaintiff would be the last person to create an imbalance by giving half of the plot to Smt. Ranjit Kaur wife of his own son Amarjit Singh. Shri Achhar Singh would not liked to create a rift between his sons by tilting the scales in favour of Amarjit Singh detrimental to the interest of Sukhdev Singh and Tarlochan Singh defendants No. 5 and 6. In fact he wanted to give half of the plot to his three sons in equal shares which he did with the execution of the first sale deed and half of the plot he wanted to retain with him as his self acquired property.
21. It was held on (1994-2)107 P.L.R. 50, Bhagwan Singh v. Teja Singh that limitation under Article 54 will start from the date fixed for the performance or if no such date is fixed when the plaintiff has notice that performance was refused. It was also held that period of limitation would commence from the date the plaintiff had the knowledge of permission having been obtained or that defendant had a right to transfer the property after expiry of period of restriction. In the present case the defendants after obtaining the permission from the local authorities never informed the plaintiff. Rather he hurriedly executed a sale deed at the back of the plaintiff in favour of defendant No. 3 Smt. Ranjit Kaur in connivance with defendant No. 4. When the findings of the trial Court are contrary to the record and are based on surmises it will always open to the High Court in the Regular Second Appeal to again re-appraise the evidence. It was also held by the Hon'ble Supreme Court in 1998(1) RCR (Civil) 550, D.S. Thimmappa v. Sidaramakka.2 that in a case of immovable property time is not the essence of the contract and limitation will run when execution of the sale deed was refused by conduct. In the present case with the execution of the sale deed dated 9.7.1991 a cause of action has arisen to the plaintiff. Therefore, the suit is within limitation.
22. In this view of the matter, I am of the opinion that a great injustice has been done to the plaintiff when both the Courts below have not rightly interpreted the facts of the case. The present Regular Second Appeal is allowed; the judgments and decrees of the Courts below are set aside; the suit of the plaintiff for specific performance of con tract is hereby decreed and directions are given to defendants No. 1, 2 and 3 to execute the sale deed in favour of the plaintiff within one month from today on receipt of Rs.
4,036/- failing which it will be open to the plaintiff to get the sale deed executed. It is further declared that the sale deed dated 9.7.1991 does not confer any valid title upon defendant No. 3. There shall be no order as to costs.