Bombay High Court
Murlidhar Bapuji Valve vs Yallappa Lalu Chaugule Since Deceased ... on 18 February, 1994
Equivalent citations: AIR1994BOM358, 1994(3)BOMCR461, (1994)96BOMLR530, AIR 1994 BOMBAY 358, 1994 BOM CJ 783, (1995) 1 MAHLR 68, (1995) 1 HINDULR 83, (1994) 3 BOM CR 461
JUDGMENT
1. This appeal is directed against the judgment and decree dated 2-3-1982 passed by 4th Joint Civil Judge, Senior Division, Pune in Special Suit No. 127 of 1966. The appeal has been filed by the original plaintiff as the trial Court has decreed the suit for specific performance filed by the plaintiff only in part and not in its entirety. During the pendency of the suit, the original defendant Nos. 1 and 2 died. The heirs of original defendants Nos. 1 and 2 are brought on record of the suit and are impleaded as the respondents Nos. 1 and 2 in this appeal. The respondent No. 3 in the appeal was original defendant No. 3 in the said suit. The respondent No. 3 claims to be subsequent transferee for value without notice. The respondent No. 3 has filed cross-objections as permissible under the Code of Civil Procedure. The respondents Nos. 1 and 2 i.e. the heirs and legal representatives of original defendants Nos. 1 and 2 have not filed any objections against the findings recorded by the trial Court in favour of the appellant herein, The parties to the appeal are hereinafter referred to as the original plaintiff, original defendants Nos. 1 and 2 and original defendant No. 3.
2. On 29-8-1966, Murlidhar Bapuji Valve, the appellant herein, (i.e. the original plaintiff) filed Special Suit No. 127 of 1966 in the Court of Civil Judge (Senior Division), Pune seeking specific performance of an agreement to sell dated 14-2-1966 arrived at between the plaintiff and original defendants Nos. 1 and 2. The plaintiff impleaded Madhavrao Baburao Kathilkute as defendant No. 3 in the said suit in view of defendant No. 3 claiming to be subsequent purchaser of the suit property under sale deed dated 4-8-1966 executed by original defendants Nos. 1 and 2 in favour of defendant No. 3. The plaintiff contended that the defendant No. 3 was not a bona fide purchaser for value without notice of contract dated 14-2-1966. The defendant No. 3 contended that the defendant No. 3 was a bona fide purchaser for value without notice. The plaintiff also made an alternative claim in the plaint for refund of various amounts paid by the plaintiff to original defendants Nos. 1 and 2 and for damages. The defendant No. 1 filed his written statement in the suit. The defendant No. 1 contended that the plaintiff had no right to seek specific performance of the suit agreement as the plaintiff has no funds at the material time and as the period of the suit agreement had expired. Thus the defendant No. 1 disputed that the plaintiff was ready, and willing to perform the suit contract at all times. The plaintiff has contended throughout that simultaneously with execution of the suit agreement i.e. on 14th February, 1966, the defendants Nos. 1 and 2 had handed over actual possession of the suit lands to the plaintiffs as stated in the suit agreement itself and since then the plaintiff is in actual physical possession of the suit lands. The plaintiff contends that the defendants Nos. 1 and 2 handed over possession of the suit lands in favour of the plaintiff. In his written state-
ment, defendant No. 1 denied that the defendants Nos. 1 and 2 had handed over possession of the suit lands to the plaintiff. The plaintiff contended in the plaint that immediately after taking possession of the suit lands in part performance of the agreement, the plaintiff had ploughed the lands and made development therein. The defendant No. 1 disputed the correctness of this averment. The defendant No. 1 contended that the defendant No. 1 had rightly executed the impugned sale deed in favour of defendant No. 3 as the plaintiff had committed breach of the suit agreement and the suit agreement was therefore required to be cancelled and actually cancelled. According to the version of defendant No. 1 in the written statement, the defendant No. 3 is in possession of the suit lands since 4-8-1966. The defendant No. 3 filed his written statement in the suit. The defendant No. 3 contended that on the date when the suit agreement was arrived at between the plaintiff and defendants Nos. 1 and 2, the defendant No. 2 was minor and the suit agreement was therefore not enforceable. The defendant No. 3 thus disputed validity of the suit agreement of which the plaintiff had sought specific performance. The defendant No. 3 contended that the defendant No. 3 was in actual possession of the suit land as a subsequent purchaser for value without notice. The defendant No. 3 contended that the claim of the plaintiff for specific performance was not consistent with the provisions of the Urban Land (Ceiling and Regulation) Act, 1976. The defendant No. 3 made alternative submission in the said written statement and also filed a counterclaim. By the said alternative submissions and the said counter-claim, the defendant No. 3 sought a decree for vacant possession and mesne profits against the plaintiff on the footing that the plaintiff was in possession of the suit land. The defendant No. 3 contended that if the Court comes to the conclusion that the defendant No. 3 was not in actual possession of the suit land, the plaintiff may be directed to hand over vacant possession of the suit land to defendant No. 3. The plaintiff filed his reply to the said counter-claim. The plaintiff contended that the suit lands were agricultural lands and the provisions of law contained in Urban Land (Ceiling and Regulation) Act, 1976 did not affect the suit claim. The plaintiff also contended that the plaintiff was in actual possession of the suit lands. The plaintiff contended that the defendant No. 3 had actual notice of the claim and interest of the plaintiff in the suit land. The plaintiff further contended that the defendant No. 3 is deemed to have notice of the suit agreement in view of the fact that the plaintiff was in actual possession of the suit lands. The plaintiff denied that the defendant No. 3 was a bona fide transferee for value without notice. It emerges from the record that according to the defendants' case, the defendant No. 2 attained majority on 3-7-1966 even though it was represented by defendants Nos. 1 and 2 to the plaintiff at all material times that the defendant No. 2 was already a major on the date of the suit agreement. The defendant No. 1 was the natural guardian of defendant No. 2. The defendant No. 1 was father of defendant No. 2. There was no conflict between defendants Nos. 1 and 2 in respect of suit lands at any time.
3. The learned trial Judge recorded oral evidence of various witnesses examined on behalf of the plaintiff and defendant No. 3. No oral evidence was led on behalf of heirs and legal representatives of defendants Nos. 1 and 2. The trial Court exhibited various documents produced and proved by the parties.
4. It must be stated at the outset and in the forefront that the contents of the impugned sale deed dated 4-8-1966 are of considerable significance for purpose of deciding one of the principal questions arising in this appeal. The defendant No. 3 has asserted in his testimony before the trial Court that the contents of the said sale deed are correct. The impugned sale deed dated 4th August, 1966 was executed by the defendant No. 1 as well as the original defendant No. 2. By this time, on any view of the matter, the defendant No. 2 had already acquired majority. The contents of said sale deed can be relied on by the plaintiff in so far as contents thereof support the plaintiffs case.
The said sale deed provides that the defendant No. 1 was sole and exclusive owner of the suit lands and the suit lands were self-acquired properties of defendant No. 1 alone. Sale deeds dated 9-11-1964 and 23-4-1965 pertaining to suit land showed name of defendant No. 2, son of defendant No. 1, as the ostensible purchaser of the said lands. In the said sale deed dated 4-8-1966, it was set out by original defendant No. 1 and original defendant No. 2 both that the suit lands were purchased by defendant No. 1 in the name of defendant No. 2 and defendant No. 2 was benamidar of defendant No. 1 in respect of suit lands. The defendant No. 2 executed the impugned sale deed in favour of defendant No. 3 as a matter of abundant caution although the defendant No. 2 had no right, title or interest whatsoever in the suit lands. It is obvious from the said sale deed that the defendant No. 1 had acquired suit lands from his own funds as his own self-acquired property. The defendant No. 1 had however obtained the suit lands in name of his minor son defendant No. 2 without any intention to make defendant No. 2 as owner of suit lands as defendant No. 2 was merely a benamidar for defendant No. 1. The above referred admissions made by original defendants Nos. 1 and 2 and duly accepted by defendant No. 3 in his testimony as correct bind all the defendants.
5. I shall now summarise the relevant provisions of the suit agreement of sale. The suit lands are correctly described in the suit agreement as well as in para 1 of the plaint. The suit lands are as under :
(a) Survey No. 37/2area Acres 4-15-00 Assessed at Rs. 4.0.0.
The four boundaries of the same are:--
In the East :Survey No. 37/1
In the South :
Survey No. 36 Grazing ground.
In the West :Survey No. 37/3
and In the North :
Canal.
(b) Survey No. 40/2 Part Southern Side, area Acres 4-7-0-0 Assessed at Rs. 3.10.0.
The four boundaries are :
In the East :
No. 40 part-Dhondiba In the South :
No. 118 Grazing Ground In the West :
No. 41 Sonba In the North :
No. 40/2, part remaining land
(c) Southern Side of Survey No. 37/ 1, area acres 1-31-00 Assessed at Rs. 2. 10.0 The four boundaries are : -
In the East :Survey No. 36
In the South :
No. 118 Grazing Ground In the West :
Out of No. 37 Dhondiba In the North :
No. 40/2 Part remaining land
(d) Survey No. 37/7, area acres 0.8.0.0 Assessed at Rs. 0-4-0 The four boundaries of the same are :
In the East :
Out of No. 37 Dhondiba In the South :
Out of No. 37 Dhondiba In the West :
Out of No. 40 land In the North :
Out of No. 37 Shamu
(e) Survey No. 40/3, area acres 0-12-0-0 Assessed at Rs. 0-12-0 The four boundaries of the same are :
In the East :
Out of Sur. No. 40 Shamu In the South :
Out of No. 37 Dhondiba In the West :
Out of No. 40 Dhondiba In the North :
Out of No. 37 Dhondiba
(f) Survey No. 37/6, area acres 0-13-0 Assessed at Rs. 0-10-0 The four boundaries of the same are :
In the East :
118 Grazing ground In the South :
Out of No. 37 Shamu In the West :
Out of No. 37 Dhondiba In the North :
Out of No. 37 - Dhondiba Total area acres 11-6-0-0.
Assessment Rs. 11-15-0.
The said agreement was executed by Yallappa Lalu Chaugule and Parshuram Yallappa Chaugule. Parshuram Yallappa Chaugule was the son of Yallappa Lalu Chaugule. By the said agreement, the concerned vendors agreed to sell the suit lands to the plaintiff at the rate of Rs. 2,100/ - per acre. The total area of the suit lands is about 11 acres and 6 gunthas. The agreed price works out of Rs. 23,415/-. The said lands are situate at village Vajare, Tal. Haveli, District Pune. In the suit agreement, the suit lands were described as the self-acquired purchased properties. It was specifically provided by the said agreement that the possession of the suit lands was handed over to the plaintiff on the same day on which the agreement of sale was executed i.e. simultaneously with execution of the said agreement. By the said agreement it was provided that the period of agreement of sale would be three months but if an occasion arose the time could be extended by the vendor. It was further provided that the vendor shall get the entry in the village Form No. 7 x 12 certified within one month. It was further provided that the vendors had received a sum of Rs. 5000/- from the plaintiff in earnest and as part payment as under:--
7-2-66 Rs. 3,300/-
14-2-66 Rs. 1700/-
Total Rs. 5000/-
It was provided that the balance of the price shall be payable by the plaintiff to the vendors at the time of execution of the sale deed. It is not disputed that the plaintiff paid further sum of Rs. 2,200/- to the vendors as set out hereinafter :
5-3-66 Rs.800/- 16-3-66 Rs.800/- 8-5-66 Rs.600/-
6. On 26-2-1966, the plaintiff caused public notice to be published in the well known Pune newspaper known as Sakal informing the members of the public that the plaintiff had entered into the suit agreement. On 9-6-1966, another public notice was caused to be published by the Advocate for the plaintiff in well known newspaper known as "Prabhat" clearly stating therein that the plaintiff was in actual possession of the suit land in pursuance of the agreement arrived at between the plaintiff and the vendors and any one dealing with the suit lands shall do so at his own risk. The defendant No. 3 feigns ignorance in respect of said public notices.
7. At the trial of the suit, the plaintiff examined himself as a witness. The plaintiff also examined one Lalchand Ramchandra Toshniwal as P. W. 2 one Chintaman Laxman Galande a neighbour as P. W. 3. The plaintiff also examined Shri Vinayak Shankar Nazare Advocate as P.W.4. The defendant No. 3 examined himself as a witness at the trial. The defendant No. 3 also examined an Astrologer by name Suresh Chintaman Bhat to prove that the defendant No. 2 had acquired the age of majority only in July, 1948 and not earlier. I have gone through the entire evidence oral and documentary evidence with the assistance of learned counsel on both sides. The documentary evidence produced at the trial consisted mainly of the suit agreement, correspondence between the advocate for the plaintiff and advocate for defendants Nos. 1 and 2, Isar pavati dated 25-6-1966 in respect of transaction of subsequent purchase between the defendant No. 1 and defendant No. 3 and the impugned sale deed dated 4-8-1966. The correspondence consists of letter dated 11th May, 1966 addressed by Advocate for plaintiff, letter dated 28th May, 1966 addressed by the Advocate for defendants to Advocate for plaintiff, tetter dated 6th June, 1966 addressed by Advocate for plaintiff to Advocate for defendants and letter dated 18th July, 1966 from Advocate for defendants to Advocate for plaintiff. Parties also produced extracts from various revenue records in support of their respective contentions. The extracts from revenue records i.e. village form 7 x 12 pertaining to suit lands show name of plaintiff as party in possession of suit lands under an agreement and as cultivator thereof.
8. The learned trial Judge framed various issues arising out of the pleadings in the suit. The learned trial Judge reached the following conclusions.
(1) The plaintiff had proved that the plaintiff was ready and willing to carry out his part of the contract at all times and the vendors had failed to perform their part of the contract.
(2) The defendant No. 3 was not a bona fide purchaser for value without notice of the suit agreement.
(3) The suit transaction was not binding on defendant No. 2 to the extent of his share in the suit lands as defendant No. 2 was a minor at the time of entering into of the suit transaction.
(4) The suit claim was partly hit by the provisions contained in Urban Lands (Ceiling and Regulation) Act, 1976 as more particularly set out in para 19 of the judgment.
(5) The learned trial Judge held that the plaintiff was entitled to a decree of specific performance of the land bearing Survey Nos. 37/1, 2, 3 and 7 as described in the plaint to. the extent of the half share of defendant No. 1. The trial Court held that the plaintiff was not entitled to a decree of specific performance of contract in respect of land bearing Survey Nos. 40/2, 3 and the lands bearing Survey Nos. 37/2, 1, 7 and 3 to the extent of half share of original defendant No. 2.
9. By its judgment and decree dated 2-3-1982, the trial Court also directed the plaintiff to deposit the proportionate amount of con-
sideration in the Court on or about 2-4-1982. By the said decree the heirs of defendants Nos. 1 and 2 were directed to execute the sale deed in favour of the plaintiff. The trial Court reached the conclusion that the plaintiff was in actual possession of the suit land since 14-2-1966. In view of the decree for specific performance having been restricted by the trial Court to some of the suit lands as more particularly set out in the decree, the trial Court held that the defendant No. 3 was entitled to recover the possession of the lands bearing Survey Nos. 40/2, 3 (entire) from the plaintiff and also recover the possession of the lands bearing Survey Nos. 37/1, 2, 3, 7 after separation of the half-share by the Collector, Pune. The trial Court issued various other directions and also passed a limited decree for mesne profits in favour of defendant No. 3 as specified in the operative part of the judgment. It is not necessary to set out all the details at this slage.
10. The following points for consideration of this Court arise for disposal of this appeal.
(1) Whether at all material times the suit lands belonged to defendant No. 1 alone as his self-acquired property and the specific and categorical admissions made by the defendants Nos. 1 and 2 in this behalf in the impugned sale deed dated 4-8-1966 are binding on all the respondents in the appeal?
(Note:-- The defendant No. 3 has specifically stated in his deposition that the contents of said sale deed were all correct. If so, whether the plaintiff is entitled to rely on the admissions contained in the said sale deed and seek specific performance of suit agreement against heirs and legal representatives of original defendant No. 1 on the above footing coupled with a direction that the heirs and legal representatives of original defendant No. 2 as well as defendant No.3 be required to join in the sale deed as consenting party thereto?) (2) Whether the plea of the plaintiff to the effect that the suit lands in reality belonged to original defendant No. 1 and defendant No. 2 was merely a benamidar of defendant No. 1 in respect thereof is hit by the provisions contained in Benami Transactions (Prohibition) Act, 1988?
(3) Whether the suit transaction was void in entirety or in part by reason of the alleged minority of the original defendant No. 2? If so, whether the claim for specific performance is liable to be dismissed in entirety or in part?
(4) Whether in alternative, the plaintiff is entitled to rely on S. 8 of the Hindu Minority and Guardianship Act, 1956 in support of his claim and the suit transaction is liable to be enforced specifically on the footing that suit contract was entered into by defendant No. 1 for himself and as natural guardian of defendant No. 2 for benefit of estate and benefit of minor in view of admissions made in impugned sale deed dated 4th August, 1966 and also in view of the fact that the defendant No. 2 did not challenge the suit contract within 3 years of attaining the age of majority or at any other time?
(5) Whether the plaintiff is not entitled to seek specific performance of the suit contract in entirety or in part in view of the provisions contained in the Urban Land (Ceiling and Regulation) Act, 1976?
(6) Whether the plaintiff was in actual possession of the suit lands in part performance of the suit agreement since 14-2-1966? If so, whether Explanation 2 to S. 3 of the Transfer of Property Act, 1882 appended to the definition of the expression "A person is said to have notice" is applicable and the defendant No. 3 is in any event deemed to have constructive notice of the suit agreement? Whether the defendant No. 3 is deemed to have constructive notice of suit agreement by reason of bis failing to make reasonable enquiries in the matter from the neighbouring owners or going at the site?
(7) Whether defendant No. 3 is a bona fide purchaser for value without notice? Whether the defendant No. 3 has discharged the onus which lay on him to bring the case within the exception contained in S. 19(b) of the Specific Relief Act, 1963?
(8) What order should be passed in the appeal and in the cross-objections filed by defendant No. 3?
11. For the reasons discussed in the later part of this judgment, I have reached the following conclusions in respect of the points for consideration of this appeal. The following conclusions are arrived at by this Court after considering the entire record of the case and the submissions of the learned counsel on either side are briefly summarised as under :
(1) The admissions contained in the impugned sale deed dated 4-8-1966 in respect of exclusive title of defendant No. 1 to the suit lands are binding on all the defendants to the suit and the respondents to the appeal. At all material times, the suit lands belonged to defendant No. 1 alone as his self-acquired property and defendant No. 2 has no right, title or interest in the suit lands. The defendant No. 1 was sole and absolute owner of the suit lands. The defendant No. 1 had purchased the suit lands from his own funds in the name of defendant No. 2 and defendant No. 2 was merely a benamidar of defendant No. 1. The plaintiff is emitted to rely on the above referred admissions.
(2) In view of the above, the suit transaction is not at all affected by reason of the alleged minority of original defendant No. 2.
(3) The plea of the plaintiff to the effect that the suit lands in reality belonged to original defendant No. 1 and original defendant No. 2 was merely a benamidar of defendant No. 1 is not hit by the provisions contained in Benami Transactions (Prohibition) Act, 1988.
(4) In the alternative and in the event of it being necessary to examine the validity of the suit transaction in the context of minority of defendant No. 1 as on 14-2-1966, I hold that the suit transaction is protected by the provisions contained in S. 8(1) of the Hindu Minority and Guardianship Act, 1956 as in my opinion the transaction was arrived at by defendant No. 1 for himself and as the natural guardian of the minor, for benefit of the minor and for benefit of estate. In my opinion, the defendant No. 2 ought to have challenged the said transaction within three
years from the dale of attaining majority as contemplated under S. 8(3) of the above referred Act which he failed to do. The defendant No. 2 never contended that the suit transaction was void ab initio wholly or in part. S. 8 of Hindu Minority and Guardianship Act, 1956 or the principle thereof is applicable not merely to alienations of minor's property duly completed but also to contracts entered into by natural guardian of the minors as held by the Supreme Court. The contracts entered into by natural guardian within scope of his authority are enforceable by and against the minors.
(5) The provisions contained in Urban Land (Ceiling and Regulation) Act, 1976 are not applicable to the suit transaction. In any event, the claim for specific performance of the suit contract is not hit by the provisions contained in the said Act.
(6) The plaintiff was in actual physical possession of the suit lands from 14-2-1966 throughout. The defendant No. 3 is thus deemed to have notice of the suit contract by reason of operation of Explanation 11 to the definition of the expression "a person is said to have notice" contained in S. 3 of the Transfer of Property Act, 1882.
(7) The defendant No. 3 was not a bona fide purchaser for value without notice.
(8) The appeal is liable to be allowed in entirety and the cross-objections are liable to be dismissed as discussed below.
12. I have already summarised the main clauses of the suit agreement. The suit agreement proceeds on the footing that the defendants Nos. 1 and 2 both are to convey suit lands to the plaintiff and the defendant No. 2 was a major and not a minor. I shall now summarise the correspondence between the Advocate for plaintiff and Advocate for defendants 1 and 2. By his advocate's letter dated 11-5-1966, the plaintiff called upon both the defendants to extend the period of the suit agreement in view of the facts set out therein. It was staled in the said letter that the relevant entries pertaining to suit lands were still not got confirmed in the record of rights pertaining thereto as stipulated. By their Advocate's letter dated 28-5-1966 both the defendants informed the plaintiffs that the defendants were ready and willing to complete the suit transaction provided the plaintiff completed their part of the obligation within two days from the receipt of the letter. The defendants Nos. 1 and 2 never contended that the suit transaction was void by reason of alleged minority of defendant No. 2. By his Advocate's letter dated 6-6-1966, the plaintiff sought inspection of certain documents and made certain requisitions. By his Advocate's letter dated 8-7-1966, the plaintiff sought certain clarification from defendants Nos. 1 and 2 as by this time it appeared to the plaintiff that perhaps the defendant No. 2 was a minor on the date of the transaction although it was stated in the agreement dated 14th February, 1966 that the defendant No. 2 was already a major on the said date and thus not a minor. By his Advocate's letter dated 18-7-1966 the defendants Nos. 1 and 2 purported to cancel the suit agreement and forfeit the amounts already paid by the plaintiff on the ground that the plaintiff had committed breach of his obligation under the said agreement.
13. I shall now refer to the documents executed by the vendors or either of them in favour of defendant No. 3. The said documents contain an important admission to the effect that the defendant No. 1 alone was sole and absolute owner of suit lands at all times and the defendant No. 2 had no right, title or interest therein, the defendant No. 2 being merely the benamidar of defendant No. 1.
(a) On 25-6-1966, the original defendant No. 1 executed a writing/agreement in favour of defendant No. 3 stating therein that the defendant No. 1 had agreed to sell the suit lands to defendant No. 3. The said writing clearly states that the suit land belonged to defendant No. 1 alone and the defendant No. 1 had agreed to sell the suit lands to defendant No. 3. By Cl. 4 of the said writing, it was provided that the defendant No. 1 shall cause execution of the sale deed by his son Parsharam Yallappa Chaugule (original defendant No. 2) also presumably as a matter of abundant caution even though the said defendant was not the co-owner of the suit lands.
(b) The impugned sale deed dated 4-8-1966 was executed by defendants Nos. 1 and 2 in favour of defendant No. 3 contents of which were and arc accepted as totally correct by defendant No. 3 in his testimony before the trial Court. By Cl. 2 of the said sale deed, it was provided that according to the real facts the suit lands were personal self-acquired properties of defendant No. 1 and defendant No. 2 was merely a benamidar of suit lands for defendant No. 2 having no right, title or interest therein. By Cl. 2 of the said sale deed, it was provided that in order to prevent any trouble or obstruction in future, the defendant No. 2 of his own free will had also placed his signature on the said sale deed even though the defendant No. 2 was not the owner of the suit lands. By Cl. 3 of the said sale deed dated 4-8-1966, it was provided that the suit lands were sold by defendant No. 1 for legal necessity as defendant No. 1 wanted moneys for his business and discharge of certain business liabilities. The above referred admission can be availed of by the plaintiff in this suit as relevant evidence in the suit and the relief for specific performance can be moulded suitably.
(c) It was recited in the said sale deed that the defendant No. 3 had agreed to pay the stipulated price to the vendor i.e. the defendant No. 1 alone at the rate of Rs. 2,300/- per acre. The said sale deed further provided that the price payable by the defendant No. 3 worked out to Rs. 25,645/- i.e. about Rs. 2000/- more than the price stipulated in the suit agreement. It is not disputed that the defendant No. 3 actually paid a sum of Rs. 16000/- and odd to defendant No. 1 by the time the impugned sale deed referred to hereinabove was executed and defendant No. 3 retained the balance of the price with himself for discharge of an encumbrance on the suit lands. It is not known whether defendant No. 3 ever paid the said amount to the vendor i.e. defendant No. 1 or his creditor.
14. It is well settled law that an "admission" of a party is liable to be considered as substantive evidence even if the party making the admission is not confronted with the statement. If necessary, a reference may be made to the judgment of the Supreme Court in the case of Bharat Singh v. Mst. Bhagirathi, . The learned counsel for respondent No. 3 has submitted across, the Bar during the course of his argument that no relief can be granted to the appellant on the basis of the admissions referred to hereinabove and the plaintiff must stand or fall by his own case. It is true that the plaintiff had approached the Court with a plea to the effect that both the defendants were owners of the suit lands and the suit contract was liable to be enforced against both the defendants in view of representations made by defendants to plaintiff. In my opinion, that would make no difference to the applicability of principle of law to the admitted facts in the situation arising in this case. It was held by the Supreme Court in case of Firm Sriniwas. Ram Kumar v. Mahabir Prasad, that in a given situation relief could be granted to the plaintiff on the basis of the defendants' case even without amendment of the plaint by raising an alternative plea. The plaintiff is entitled to rely on all relevant material on record and project additional facets in support of his claim for equitable relief. If cannot be said that the defendants are prejudiced by reason of the plaintiff's reliance on admissions of the defendants. In my opinion, it is not necessary to prolong the life of this old suit by considering application of the plaintiff for amendment of the plaint at this stage as the plaintiff is clearly entitled to rely on the above referred admissions and seek relief on the footing that the suit lands belong to defendant No. 1 alone and defendant No. 2 was made party to the suit transaction only as a matter of abundant caution. It is not the case of the respondents in this appeal that the above referred admissions were or are mistaken. The respondents are still relying on the above referred admissions contained in the impugned sale deed dated 4th August, 1966 and every word of what is stated therein. On this aspect, the approach and treatment of the subject by the Supreme Court in case of Firm Sriniwas Ram Kumar v. Mahabir Prasad clearly helps the plaintiff. I propose to decide this appeal on the footing that in reality the said suit lands belonged to defendant No. 1 alone as absolute owner thereof and defendant No. 2 was merely the benamidar of defendant No. 1 in respect thereof.
15. The provisions qpntained in Benami Transactions (Prohibition) Act, 1988 are not at all attracted in the situation presented in this case. S. 4(1) of the said Act provides that no suit, claim or action to enforce any right in respect of any property held benami against the person in whose name the property is held or against any other person shall lie by or on behalf of a person claiming to be the real owner of such property. This is not a suit filed by defendant No. 1 or on behalf of defendant No. 1 against defendant No. 2 or the legal representatives of defendant No. 2. This is a suit filed by a third party for specific performance of the suit contract against the real owner as well as benamidar. In my opinion, S. 4(1) of the above referred Act has no application to the claim made in the suit.
16. For considering the alternative argument of the learned counsel for the appellant, it shall have to be assumed for the same of argument that the defendant No. 2 had half share in the suit lands and defendant No. 2 was a minor up to 3rd July, 1966. For the purpose of considering this submission, it must be assumed that the defendant No. 2 was a minor at the time when the suit agreement was entered into. It cannot be disputed that the defendant No. 1 was natural guardian of defendant No. 2. S. 8(1) of the Hindu Minority and Guardianship Act provides that the natural guardian of a Hindu minor has power, subject to the provisions of this section, to do all acts which are necessary or reasonable and proper for the benefit of the minor or for the realization, protection or benefit of the minor's estate; but the guardian can in no case bind the minor by a personal covenant. S. 8(3) of the said Act provides that any disposal of immovable property by a natural guardian in contravention of sub-sec. (1) or sub-sec. (2), is voidable at the instance of the minor or any person claiming under him. S. 8 of the Act is held to be applicable to contracts entered into by a natural guardian on behalf of a minor. If the contract is held to be for purposes specified in S. 8(1) of the Act, it would be enforceable by or against the minor. If the contract entered into by natural guardian is in excess of authority, it would be voidable at the instance of minor and minor must take action for setting aside the transaction on attaining majority within the prescribed period of limitation. The question which arises for consideration of the Court is as to whether the suit contract can be considered as a contract entered into by the natural guardian i.e. defendant No. 1 for himself and on behalf of defendant No. 2. It cannot be disputed that being the father of defendant No. 2, the defendant No. 1 was the natural guardian of defendant No. 2 at material time. In the case of Manik Chand v. Ramchandra, , the Apex Court has held that the natural guardian of the minor concerned had requisite authority of law to enter into a contract on behalf of the minor provided the conditions prescribed by S. 8 of the Act were satisfied. The provisions contained in Cl. 3 of the impugned sale deed dated 4-8-1966 clearly provide that the transaction arrived at between the defendants Nos. 1 and 2 and defendant No. 3 was for legal necessity and for the benefit of estate. The difference between the sale price stipulated under the suit agreement and the price stipulated between the defendant No. 3 and defendant No. 1 is merely of about Rupees 2,000/-. If the impugned transaction with defendant No. 3 was within the scope and ambit of S. 8 of the above referred Act, so was the suit transaction. There is no material and significant difference between the two transactions. In this view of the matter, I have no hesitation in accepting the above referred alternate submission also. During the course of the correspondence, the defendants Nos. 1 and 2 never contended that the suit transaction was void ab initio. At a late stage the suit transaction was sought to be cancelled on an incorrect ground that the plaintiff had no fund available to him for completing the transaction and the plaintiff had failed to complete the transaction within the stipulated time. Time was not the essence of the contract. The defendants Nos. 1 and 2 had committed the breach of contract and not the plaintiff. The trial Court rightly held that the plaintiff was ready and willing to perform his part of the contract at all material times and I have no reason to take a different view after considering the oral and documentary evidence in detail. The learned counsel for the appellant is also supported by his submission in this behalf by the judgment of the High Court of Delhi in the case of Smt. Kamini Gupta v. Mukesh Kumar Gupta, reported in AIR 1985 Delhi 221. It must also be stated that no cross-objections have been filed by heirs and legal representatives of defendants Nos. 1 and 2.
17. I shall now proceed to discuss another crucial question debated at the Bar i.e. "Whether the appellant was in actual possession of the suit lands since 14-2-1966"?
18. It must be stated at this stage that the learned counsel for respondent No. 3 has concentrated his submission on the question as to whether respondent No. 3 is a bona fide transferee for value without notice. The learned counsel has submitted that the evidence of the plaintiff is not truthful and the plaintiff had not cultivated any part of the land as alleged as the suit lands were barren lands and the plaintiff's evidence regarding the defendant No. 3 having actual notice of suit agreement was false. The learned counsel has submitted that the Court should accept the evidence of defendant No. 3 in entirety and reject the evidence of plaintiff. The learned counsel has submitted that the plaintiff ought to have examined the labourers who were engaged by the plaintiff to work on the suit lands as witnesses in support of his case.
19. The plaintiff has deposed in his evidence that the plaintiff had taken actual possession of the suit lands on 14-2-1966 and affixed his board on the suit property indicating that the plaint iff was in possession. The plaintiff has stated in his evidence that the plaintiff had employed a watchman and constructed a hut thereon. During the course of correspondence between the advocate for plaintiff and advocate for defendant Nos. 1 and 2 referred to in earlier part of this order, the plaintiff asserted that defendant Nos. 1 and 2 had placed the plaintiff in actual possession of the suit lands in part performance of the suit contract. The plaintiff asserted the said fact in public notices published in newspapers. The defendant Nos. 1 and 2 denied the said assertion of the plaintiff. The plaintiff's assertion that the plaintiff was in actual possession of the suit lands is supported inter alia by the evidence of Chimaman Laxman Galande (P.W.3). The said witness has also stated that the Police Patil and Talathi were witnesses to the delivery of the suit lands to the plaintiffs. The said witness is a neighbouring owner of adjoining land. I accept the evidence of the plaintiff and his witnesses on this aspect. The testimony of the plaintiff and P.W. 3 is supported by documentary evidence and has remained unshaken in cross-examination. The plaintiff asserted his actual possession of the suit lands in the public notice published in newspaper Prabhat being notice dated 6-6-1966 published in newspaper dated 9-6-1966. It is true that the majority of the suit lands are barren lands. The plaintiff has asserted during the course of his testimony that the entire suit lands were not barren. It is of considerable significance that the defendant No. 3 himself filed a counter-claim in this suit, seeking a decree for possession in respect of the suit lands against the plaintiff although in alternative. The defendant No. 3 was specifically questioned during course of his testimony as to whether defendant No. 3 was in possession of the suit lands. The defendant No. 3 stated in para 13 of his testimony as under :
"I cannot tell definitely whether I am in possession of the suit lands. I cannot tell who is in possession of the suit lands."
The plaintiff has stated in the plaint as well as in his evidence that soon after taking possession of the suit lands, the plaintiff filled in ditches and prepared it for cultivation. The plaintiff has been paying land revenue in respect of the suit land. The plaintiff has produced revenue receipts in support of the said assertion. The plaintiff has given elaborate details in his evidence about agricul-
tural operations carried on on part of the land to a small extent. The plaintiff has also stated during the course of his evidence that a watchman was employed to look after the suit land. The plaintiff has given names of various persons working on the suit lands as labourers and has produced various receipts. It is true that the various labourers employed by the plaintiffs were not examined as witnesses though intended to be examined at one stage. In my opinion, that makes no difference in view of overwhelming evidence on record. The plaintiff has produced a photograph showing that the workers employed by the plaintiff were working on the suit lands. The plaintiff relies on various extracts from village Form No. 7 x 12 indicating that the plaintiff was in possession of the suit land under the said argument and that to some extent the plaintiff had cultivated the part of the suit land. The name of the plaintiff specifically appears in the revenue records as obvious from the extracts produced at the trial. It is the case of the defendant No. 3 that the plaintiff caused false entries to be made to the village record with help of Talathi and the revenue officers. It is not possible to accept ipsi dixit of defendant No. 3 in this behalf. The defendant No. 3 states that the defendant No. 3 had performed pooja on the suit land. I am not convinced. The defendant No. 3 ought to have examined an independent witness in support of his assertion on this aspect. The defendant No. 3 admits during the course of his testimony that defendant No. 3 did not make any enquiry from the owners of the neighbouring lands before entering into the alleged agreement and obtained the impugned sale deed. During the course of his evidence the defendant No. 3 has in terms stated as under :
"I purchased the suit land without making an enquiry with the neighbouring landlords about the possession."
In my opinion the oral testimony of defendent No. 3 is unsatisfactory.
20. Having regard to the overwhelming evidence on record and preponderance of probabilities, I have no hesitation in holding that the plaintiff was in actual possession of the suit lands since 14-2-1966 and any one going to the suit lands would have discovered the fact of such possession by making a little enquiry if necessary. I confirm the finding of trial Court on this aspect. The learned counsel for the respondent No. 3 has submitted that the land was a barren land and the plaintiff's story of ploughing and cultivation of part of land is false. I do not agree. The defendant No. 3 has almost admitted the plaintiff's possession of suit land by filing a counterclaim as aforesaid and seeking decree for possession against the plaintiff in this behalf as stated above. The learned counsel for respondent No. 3 argues that the respondent No. 3 believed the assertion of the vendors to the effect that the vendors were in actual possession of the suit lands immediately prior to 4th August, 1966. The appellant has proved several overt acts by him on his behalf over the suit lands. The defendant No. 3 has proved none. In this situation, the Court is required to consider as to whether defendant No. 3 has proved her plea to the effect that the defendant No. 3 is the subsequent purchaser for value without notice. It is well settled law that the onus to prove the exception carved out in S. 19(b) of the Specific Relief Act, 1963 is on the subsequent purchaser. S. 19 of the Act clearly provides that specific performance of a contract may be enforced against either party thereto or any other person claiming under him by a little arising subsequently to the contract, except a transferee for value who has paid his money in good faith and without notice of the original contract.
(the underlining is done to supply emphasis) The defendant No. 3 has undoubtedly asserted in his evidence that the defendant No. 3 had no notice of the suit contract at any time prior to 4th August, 1966. The defendant No. 3 has further asserted in his evidence that the defendant No. 3 had paid his money to defendants Nos. 1 and 2 in good faith as recited in the impugned sale deed. The plaintiff has stated in his evidence that the plaintiff has actually informed defendant No. 3 about the suit contract when he met him on the road side. I am not prepared to believe the plaintiff on this aspect of the testimony. I accept the testimony of the plaintiff in all respects except on this aspect. Having regard to proved facts of the case, I hold that constructive notice of the suit agreement shall have to be imputed to defendant No. 3 in view of actual possession of the suit lands being with the plaintiff since 14th February, 1966. "A person is said to have notice" when he actually knows that fact, or when, but for wilful abstention from an inquiry or search which he ought to have made, or gross negligence, he would have known it. It is so stated in S. 3 of Transfer of Property Act. Explanation II appended to the said relevant provision reads as under:--
Explanation II.-- Any person acquiring any immoveable property or any share or interest in any such property shall be deemed to have notice of the title, if any, of any person who is for the time being in actual possession thereof."
Explanation II was incorporated in the Transfer of Property Act by the Amending Act of 1929. I shall now refer to the third illustration to S. 27(b) of Specific Relief Act, 1877 which has been relied on by the learned counsel for the appellant with considerable force. The said statutory illustration to the old Act i.e. Specific Relief Act, 1877 reads as under :
"Illustrations to Cl.(b)--
A contracts to sell land to B for Rs. 5,000. B takes possession of the land. Afterwards A sells it to C for Rs. 6,000. C makes no inquiry of B relating to his interest in the land. B's possession is sufficient to affect C with notice of his interest, and he may enforce specific performance of the contract against C."
The material portion of S. 27 of Specific Relief Act, 1877 is identical to S. 19 of the Specific Relief Act, 1963. The statutory illustrations appended to Specific Relief Act, 1877 do not form part of Specific Relief Act, 1963. Still reference can be made to the statutory illustrations for purpose of understanding the legislative history of the Act and the back ground of the relevant provisions. In this view of the matter and in view of my finding that the plaintiff was in actual possession of suit lands since 14th February, 1966. I have no hesitation in holding that the defendant No. 3 has constructive notice in respect of the suit agreement and the suit agreement is enforceable against the defen dant No. 3 also. The defendant No. 3 ought to have made necessary inquiry in respect of possession of the suit land by going to the site or from neighbouring land owners which the defendant No. 3 failed to do. Actual posses sion of suit lands with prior purchaser operates as constructive notice of the original agreement to the subsequent purchaser. The defendant No. 3 cannot be considered as bona fide transferee for value without notice. It is therefore not necessary to examine the further question as to whether the defendant No. 3 was guilty of mere negligence or gross negligence in respect of his obligation to make necessary enquiries in the matter and as to whether the defendant No. 3 should be deemed to have notice of plaintiff's agreement before arriving at the impugned transaction on this count also. The learned counsel for the appellant has further submitted that the defendant No. 3 cannot avail of exception to S. 19(b) of Specific Relief Act, 1963 in view of the admitted fact that the defendant No. 3 had retained part of consideration amount for discharge of liability of the vendor. The learned counsel for the appellant has relied on a passage from S. C. Banerjee's Law of Specific Relief, 9th Edn. at page 270 which reads as under :
"The entire money or equivalent thereof must have been paid. If the subsequent purchaser detains money to be paid to third persons in discharge of their debt but it remains unpaid, the money "has not been paid."
Jagati Timmagaju v. Immani Hanumant Rao (1972) 1 APLJ 1.
The learned counsel for the appellant submits that from this point of view also the respondent No. 3 cannot be considered as a subsequent purchaser for value who has paid entire sale price to the vendor. The learned counsel for the appellant submits that the respondent No. 3 cannot legitimately invoke exception contained in S. 19(b) of the Specific Relief Act, 1963 unless the respondent No. 3 proves each and every condition prescribed by law for availing of the said exception. I have little doubt about the correctness of the proposition of law formulated by the learned Author of the above referred book. If there is an encumbrance on the suit property and a provision is made far discharge of such encumbrance from part of sale price, it may not be possible to conclude that such an adjustment or arrangement does not amount to "payment of price" by the purchaser to the vendor. In view of the finding of the Court that the defendant No. 3 had constructive notice of suit agreement and defendant No. 3 is not entitled to avail of the exception contained in S. 19(b) of Specific Relief Act, 1963, it is not necessary to decide this aspect of the matter conclusively. I am not expressing any final opinion on this aspect of the matter as it is unnecessary to do so. I have gone through the judgment of the trial Court in detail with assistance of learned counsel on all sides. In my opinion, the trial Court was right in holding that having regard to the totality of facts and circumstances emerging from the record, the defendant No. 3 cannot be held as a bona fide purchaser for value without notice.
21. The only question which remains to be considered is as to whether the suit transaction is hit by the provisions contained in Urban Land (Ceiling and Regulation) Act, 1976. The learned counsel for the appellant has relied on a Division Bench judgment of our High Court in the case of Sureshkumar Sakharchand Shah v. Edna Shushila Samuel, reported in 1993 MLJ 1317 in support of his contention that even where the provisions of Urban Land (Ceiling and Regulation) Act are applicable, agreement to sell the land is not frustrated. This judgment is clearly helpful to the appellant. There is one another angle projected by the learned counsel for the appellant for consideration of the Court. The appellant has contended that the suit lands are not situate within urban agglomeration of Pune city and the suit lands were situate above five miles and one furlong away from Pune city. The evidence of the plaintiff on this aspect is firm and specific. The said evidence reads as under :
"The village Vaze is about 5 miles and 1 furlong away from Poona city."
In my opinion, the provisions of the Urban Land Ceiling and Regulation Act are not at all attracted to the present case. The suit lands were and are agricultural lands and no non-agricultural permission has yet been applied for or obtained by the plaintiff. Thus the provisions of the above referred Act are not at all attracted.
22. At the hearing of the appeal, the appellant has accepted title of heirs and legal representatives of the vendors (i.e. original defendant No. 1 and/or 2) without any reservation. In trial Court also, the appellant did not dispute the title of the vendors. Merely because certain querries were raised for purpose of ascertaining correct age of original defendant No. 2, it does not follow that the plaintiff is disentitled from claiming specific performance of the suit contract.
23. Before I conclude this judgment and pronounce operative part of the decree, I shall refer to the application for amendment of the plaint made on behalf of the appellant. The said application is rejected as unnecessary in view of my finding that the plaintiff is entitled to rely upon the admissions contained in the sale deed and other documents relied upon by the defendants themselves and it is not necessary to seek amendment of plaint for the said purpose.
24. It must be stated in the passing that no cross-objections have been filed on behalf of the heirs and legal representatives of the original defendants Nos. 1 and 2. The original defendants Nos. 1 and 2 are thus not entitled to challenge the findings in respect whereof they ought to have filed such cross-objections. No serious arguments were advanced by learned counsel for heirs and legal representatives of original defendants Nos. 1 and 2 and rightly so. The subsisting controversy is between the appellant and respondent No. 3.
25. By cross-objections filed by defendant No. 3, the defendant No. 3 has asserted that the defendant No. 3 was a bona fide transferee for value without notice. I have negatived the said contention. The cross-objections fail.
26. In the result, I pass the following decree.
(1) The appeal is allowed. The cross-objections are dismissed. The judgment and decree passed by the trial Court is set aside and is substituted by the following decree.
(a) Suit for specific performance is decreed in entirety as prayed for.
(b) The appellant (original plaintiff) is directed to deposit balance of the agreed price after deducting therefrom a sum of Rs. 7200/-and the amount already deposited in trial Court on or before 30th June, 1994.
(c) On the said amount being deposited the heirs and legal representatives of original defendants Nos. 1 and 2 shall execute the requisite sale deed in favour of the plaintiff in respect of the suit lands. The original defendant No. 3 is directed to join in the execution of the said sale deed as a necessary or proper party having regard to the format of decree required to be passed in the said suits as laid down in the case of Durga Prasad v. Deepchand, .
(d) It is hereby declared that the impugned sale deed dated 4-8-1966 is of no legal effect. The said sale deed is in any event cancelled and set aside. The trial Court shall forward copy of this decree to the registering authority cxpeditiously.
(e) In case the heirs and legal representatives of original defendants Nos. 1 and 2 and defendant No. 3 do not execute the required sale deed even if the balance of the consideration amount is deposited by the plaintiff in the trial Court, the Court shall get the said sale deed executed and registered expeditiously. It shall be incumbent on all the respondents to do all necessary acts and things so as to.perfect the title of the plaintiff in respect of the suit lands including taking of steps for registration of the said sale deed. In case the respondents fail to do so, the trial Court is directed to take all requisite steps in this behalf up to the stage of registration of sale deed in favour of the plaintiff.
(f) The learned counsel for the appellant, plaintiff accepts the title to the suit property as it stands and the appellant shall not be permitted to raise any dispute in respect of title to the suit land.
(g) If the above referred amount is not deposited by the plaintiff in the trial Court by 30-6-1994, time being the essence of the obligation, the suit shall stand dismissed.
It appears to be obvious from the proved facts of the case that the defendant No. 3 is entitled to refund of sum of Rs. 16544/- from defendants Nos. 1 and 2. The trial Court shall permit defendant No. 3 to withdraw the amount deposited and to be deposited by the appellant to the extent of the amount available after the sale deed is executed and registered in favour of the plaintiff. If there is a short fall the defendant No. 3 shall have to recover the amount of deficit if any by adopting appropriate legal proceedings against the heirs and legal representatives of defendants Nos. 1 and 2. If there is any surplus, the same be paid over to heirs and legal representatives of defendants Nos. 1 and 2.
(2) Having regard to the facts and circumstances of the case, there shall be no order as to costs throughout.
(3) On application of Mr. Pungalia, learned counsel for respondent No. 3 execution of the decree passed today is stayed up to 30-4-1994.
(4) Issue of certified copy expedited.
27. Appeal allowed.