Allahabad High Court
Jor Singh & Another vs Prabal Pratap Singh on 19 February, 2013
Author: Sudhir Agarwal
Bench: Sudhir Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 34 Case :- SECOND APPEAL No. - 462 of 2005 Appellant :- Jor Singh & Another Respondent :- Prabal Pratap Singh Appellant Counsel :- Akhilesh Singh, K.S. Chauhan, R.B.Pal Respondent Counsel :- M.L. Jain Hon'ble Sudhir Agarwal,J.
1. Heard Sri K.S. Chauhan, learned counsel for appellants and Sri M.M. Jain, Advocate, holding brief of Sri M.L. Jain, learned counsel for respondent.
2. This is defendants' appeal. The defendant-appellant no. 1, Jor Singh, was Bhumidhar of plot no. 227 area 1.59 acres, and plot no. 251 area 1 dismal, situate at mauza Kathphori, Tehsil Shikohabad, District Firozabad. He executed an agreement to sell on 22.5.1984 in respect of the entire land, as above, with one Om Prakash. Having failed to get executed sale-deed in his favour, Sri Om Prakash instituted a suit for specific performance of the contract, registered as Original Suit No. 105 of 1986 in the Court of Civil Judge, Mainpuri but the same was dismissed as withdrawn, on 26.8.1987.
3. Thereafter, defendant-appellant no. 1 executed an agreement for sale with the plaintiff-respondent on 24.8.1987 but failed to honour the same and instead executed another agreement with him on 5.8.1988, stipulating therein that the sale-deed shall be executed within one year. The consideration was Rs. 40,000/- out of which Rs. 25,000/- was already paid to defendant-appellant no. 1.
4. Since defendant-appellant no. 1 did not show any inclination for execution of sale deed, a notice dated 24.7.1989 was served upon him requiring him to receive the balance amount on 4.8.1989, and remain present in the registry office for registration of sale-deed but the defendant-appellant not. 1 got the notice, returned, unserved.
5. In the meantime, defendant-appellant no. 1 executed an arrangement-deed ¼O;oLFkk&i=½ in favour of appellant no. 2 on 7.8.1987.
6. Plaintiff-respondent instituted O.S. No. 67 of 1990 for specific performance by enforcement of agreement to sell, directing defendants to execute sale-deed in respect of plots no. 227 area 1.59 acres and 251 area 0.01 acres after accepting Rs. 15,000/- from plaintiff. He also sought a declaration to the effect that agreement dated 5.8.1988 be rectified and in respect of plot no. 251 instead of area mentioned therein as 0.09 acres, it should be read as 0.01 acres and the total area of both the plots mentioned as 1.68 acres, be corrected as 1.60 acres. He also prayed for cancellation of the deed dated 7.8.1987.
7. Separate written statements were filed by defendants no. 1 and 2. Defendant no. 1 admitted that he is bhumidhar of plot no. 251 areas 0.01 acres but defendant no. 2 is bhumidhar and in possession over plot no. 227 area 1.59 acres since 7.8.1987 pursuant to the ¼O;oLFkk&i=½/gift-deed dated 7.8.1987 which was executed by defendant no. 1 in her favour. Admittedly, defendant no. 2 is the wife of defendant no. 1.
8. Defendant no. 1 denied to have agreed to sell land in question to plaintiff and he also denied both the agreements dated 24.8.1987 and 5.8.1988, and, also denied of having accepted any money from him. He, however, stated in para 15 of written statement that a sum of Rs. 10,000/- was borrowed from plaintiff on 24.8.1987 which was repayable in an year, with interest at the rate of 1.50 per cent per month. The deed dated 24.8.1987 was by way of security for re-payment of aforesaid loaned money. In para 16, defendant no. 1 further said that, when plaintiff proposed for execution of deed dated 24.8.1987, defendant no. 1 told him about execution of O;oLFkk&i=/gift-deed dated 7.8.1987 in favour of his wife. Still plaintiff insisted upon execution of agreement dated 24.8.1987 knowing it well that defendant no. 1 had no title in plot no. 227 and the deed dated 24.8.1987 is/was only a security for re-payment. The aforesaid money was borrowed for payment to Sri Om Prakash since the agreement dated 24.8.1987, when executed, the earlier agreement executed by Sri Om Prakash was also subsisting. Hence the subsequent agreement was of no legal consequence. He also said that after receiving notice dated 30.7.1989, defendant no. 1 arranged Rs. 10,000/- and Rs. 3,600/- towards interest and paid to the plaintiff, who assured to return the two agreements, but, thereafter, filed the suit in question. The agreements, therefore, sought to be enforced were never intended to be agreement for sale and purchase and, therefore the suit for specific performance is liable to be dismissed.
9. Defendant no. 2, in her written statement, claimed herself to be the sole bhumidhar in possession, of Plot No. 227 area 1.59 acres, and in respect of another plot, defendant no. 1 was stated to be the bhumidhar. She claimed that gift-deed executed by defendant no. 1 in her favour, being earlier in point of time, subsequent agreements would confer no right upon the plaintiff in respect of plot no. 227 area 1.59 acres. On other aspects of the matter, she also took a stand, similar to that, as pleaded by defendant no. 1, in his written statement. She also said that initially the instrument dated 7.8.1987 was treated to be a deed of arrangement/mutual settlement between the husband and wife, but the stamp authorities took a view that the aforesaid document is a gift-deed and accepting their stand, defendants have paid stamp duty treating the instrument to be a gift-deed and thereafter all the incidents flowing from a valid gift would be deemed to have flown in favour of defendant no. 2 in respect of plot no. 227.
The Trial Court formulated 8 issues as under:
1- D;k izfroknh ua0&1 us fnukad 24-8-87 o 5-8-88 dks fooknxzLr Hkwfe 40]000@& :i;s esa cspuk r; fd;k rFkk oknh ds gd esa 25000@& :i;s c;kuk ysdj bdjkjukek eqvk;nk o; fu"ikfnr fd;k\ 2- D;k oknh bdjkjukek ds ckn lnSo cSukek djkus dks rS;kj o rRij o jtkeUn jgk vkSj vc Hkh gS\ 3- D;k izfoknh ua0&1 }kjk izfroknh ua0&2 ds gd esa fd;k x;k O;oLFkk i=@ nkui= voS/kkfud o izHkko 'kwU; gS] vkSj fujLr fd;s tkus ;ksX; gS\ 4- D;k fookfnr lafonk 10]000@& :i;s dk ++_.k dh vnk;xh ds fy, tekur ds rkSj ij fy[kk;k x;k] ;fn gka rks izHkko\ 5- D;k fodz; lafonk izfroknhx.k ds dFkukuqlkj izHkko'kwU; gS\ 6- D;k oknh }kjk djk;k x;k bdjkjukek 'kq)hdj.k ,oa jsDVhfQds'ku ;ksX; gS\ 7- oknh fdl vuqrks"k dks ikus dk vf/kdkjh gS\ 8- D;k izfroknh vUrxZr /kkjk 20 fof'k"V vuqrks"k vf/kfu;e dk ykHk ikus dk vf/kdkjh gS] tSlk fd vfrfjDr izfrokn i= esa dgk x;k gS\
1. Whether the defendant no. 1 on 24.8.87 & 5.8.88 agreed to sell the disputed land for a consideration of Rs. 40,000/- and executed an agreement to sell in favour of the plaintiff after taking Rs. 25,000/- as advance money?
2. Whether plaintiff after the agreement, has always been and still ready and willing to get the sale-deed executed?
3. Whether the arrangement deed / gift deed executed by defendant no. 1 in favour of the defendant no. 2 is illegal & void and liable to be cancelled?
4. Whether the disputed agreement to sell was got executed as a surety for repayment of loan amount of Rs. 10,000/-? If so, its effect?
5. Whether the sale-deed is void as contended by the defendants?
6. Whether the agreement got executed by the plaintiff is liable to correction & rectification?
7. To what relief the plaintiff is entitled?
8. Whether the defendant is entitled to get the benefit of Section 20 of Specific Relief Act, as claimed in the supplementary written statement?
(English Translation by the Court )
10. From pleadings, the Trial Court found that defendant no. 1, in fact, has admitted execution of the agreements dated 24.8.1987 and 5.8.1988, which both are registered documents, but he disputed that the same were executed with an intention of sale or purchase of the land in question, and, according to him, they constituted security for re-payment of loan amount of Rs. 10,000/-.
11. Once the execution of document is admitted, onus lies upon defendant to prove that intention and purpose was not such as was evident from the reading of aforesaid documents, which the Trial Court held that defendant no. 1 failed to prove. He also failed to prove that information of execution of instrument dated 7.8.1987 was conveyed to the plaintiff at any point of time while executing the agreement dated 24.8.1987 and 5.8.1988. In this regard, it has also recorded findings that instrument dated 7.8.1987, though presented for registration at an earlier point of time, but actually it was registered on 23.11.1992 and its reference has not been given in the two registered agreements dated 24.8.1987 and 5.8.1988, which clearly shows that information regarding instrument dated 7.8.1987 was never conveyed by defendant no. 1 to the plaintiff. It also held that mere fact that in revenue records, mutation has taken place and instead of name of defendant no. 1, name of defendant no. 2 was entered, would not result in conferment of title upon defendant no. 2, inasmuch revenue record recognizes only possession, and not the document of title. Issue no. 1 was decided in affirmance, i.e., in favour of plaintiff and issues no. 4 and 5 were decided in negative i.e. against defendants no. 1 and 2. Thereafter, issue no. 3 was also decided in affirmance and in favour of plaintiff holding that the instrument dated 7.8.1987 is wholly illegal and void, as a result whereof, the suit was ultimately decreed vide judgment dated 21.11.2000.
12. The lower Appellate Court has also confirmed findings of Trial Court on all the issues and, accordingly, dismissed Civil Appeal vide judgment and decree dated 28.2.2005.
13. Sri K.S.Chauhan, learned counsel for appellants, contended that a suit for specific performance of contract cannot be decreed when its performance has rendered impossible inasmuch the property in dispute has already been transferred to a third party. The Courts below have erred by not declining to exercise discretion in favour of plaintiff-respondent though provided and permitted vide Section 20 of Specific Relief Act, 1963 (hereinafter referred to as "Act, 1963"). At the best, they (Courts below) could have awarded only compensation, for breach of contract as provided in Section 21 (2) of Act, 1963. In support of his submission, he placed reliance on Veluyudhan Sathyadas Vs. Govindan Dakshyani 2002 (4) AWC 2767 (SC) and V. Muthusami (dead) by LRs. Vs. Angammal and others (2002) 3 SCC 316.
14. Substantial questions of law, arising in this matter, after hearing learned counsels for parties, in my view, are:
(1) Whether the deed dated 7.8.1987 executed by defendant-appellant no. 1 in favour of defendant-appellant no. 2, i.e., his wife, is a gift-deed having effect of transferring property, so as to render enforcement of an agreement for sale in a suit for specific performance, impermissible in law?
(2) Whether the deed/instrument dated 7.8.1987 is a document of arrangement between the husband and wife without affecting title of the property and without transferring title and ownership from its owner, i.e., defendant-appellant no. 1 to defendant-appellant no. 2?
(3) Whether the Courts below were right in decreeing the suit for specific performance and declining to exercise their discretion in favour of plaintiff-respondent?
15. Questions no. 1 and 2 can be dealt with together. The core issue is the nature of deed dated 7.8.1987 executed by defendant no. 1 in favour of his wife i.e. defendant no. 2. Whether the instrument dated 7.8.1987 is a gift-deed or any other kind of instrument transferring the title or even bhumidhari rights of defendant no. 1 to defendant no. 2 so as to render the two agreements executed by defendant no. 1 with plaintiff for sale of plot no. 227 area 1.59 acres, impermissible or rendering specific performance impossible.
16. It would be first appropriate to consider the contents of document, to discern its true nature. Defendant-appellants themselves have termed the document to be a O;oLFkk&i= i.e. a deed of arrangement. This document dated 7.8.1987 is Paper No. 99-A. Admittedly, it is in respect of plot no. 227, area 1.59 acres only. Relevant extract of the document reads as under:
^^izzFke i{k us f}rh; i{k iRuh ds uke O;oLFkk i= vafdr djds fy[ks nsrk gwWa fd f}rh; i{k mijksDr Hkwfe dks vius ikyu iks"k.k ds fy, thouHkj bLrseky esa ykosxhA mlls viuk Hkj.k iks"k.k djrh jgsxhA mldks mDr Hkwfe dks fcdzh ,oa cU/kd rFkk gLrkarj.k vkfn fdlh Hkh izdkj dk djus dk vf/kdkj u gksxkA vxj djs rks xyr o >wB le>k tkosxkA f}rh; i{k dh e`R;q ds ckn izFke i{k ds mRrjkf/kdkjh gh ekfyd o Lokeh gksaxsA vr% f}rh; i{k dks vf/kdkj gS fd og viuk jktdh; i=ksa esa vafdr djk ysosA vius bLrseky esa Hkwfe dks ykosA vxj vU; dksbZ O;fDr vkifRr izxV djs rks bl O;oLFkk i= ds vk/kkj ij xyr o >wB le>k tk;sxkA vr% izFke i{k us f}rh; i{k ds uke O;oLFkk i= vafdr dj fn;k fd lun jgs le; ij dke vkosA^^ (emphasis added) "The first party is executing a 'Vyavastha Patra' (Arrangement Deed) in favour of the second party i.e. wife, stipulating that the second party shall use the aforesaid land for her maintenance throughout her life. She shall be maintaining herself out of the same. She shall have no right to sell, mortgage and transfer the said land in any manner. If she does so, the same shall be deemed to be faulty and erroneous. After death of the second party, only the heirs of the first party shall be landlord and owner. The second party shall, therefore, have right to get it recorded in government records and to put the land to her use. In case any other person raises any objection, the same shall be deemed to be wrong and erroneous on the basis of this arrangement deed. The first party has, therefore, executed the arrangement deed in favour of the second party so that it may serve as a certificate if there be such need."
(English Translation by the Court )
17. Apparently, it does not transfer bhumidhari rights to defendant no. 2. It says that defendant no. 1, in order to secure maintenance of his wife and to satisfy her, executed the aforesaid document, entitling her use of the said property for maintenance throughout her life but she would not be able or have any right to sell, mortgage or otherwise transfer the aforesaid property to anyone else. After her death, defendant no. 1 would be the owner. It is a kind of document creating life estate in favour of defendant no. 2 without any title etc. The same continued with defendant no. 1. Evidently, it does not satisfy the definition of "lease" contained in Section 105 of Transfer of Property Act, 1882 (hereinafter referred to as "Act, 1882").
18. In order to constitute a family arrangement, it is not necessary that every party taking a benefit under such a settlement must be shown to have, under the law, a share in the property. It is sufficient if they have a possible claim or even if there is related resemblance of a claim. Such an arrangement is not a transfer at all. Even if the document is held to be a gift under Section 122 of Act, 1882, the transfer of land in question does not include transfer of bhumidhari rights of defendant no. 1 to defendant no. 2, but it talks of the right to use the land during her lifetime for the purpose of her maintenance, but without any right of alienation to third party. It is true that at one stage, the document mentions that the donor is transferring the property with all rights owned by him, but, simultaneously, in the immediate subsequent stage/line, he has said in very clear words that donee shall not be entitled to transfer or create third party rights over the land in dispute, and, after her death, the donor shall continue to be the owner of property in question. The right of user of the land and for that purpose mutation in revenue record, thus, was conferred upon the donee. The document in its entirety, to me, it appears, at the best, can be construed to be an instrument of gift with limited rights in property in question, to the donee and, therefore, the ownership/bhumidhari rights continued with the donor.
19. Once the title and ownership continued with the donor, it cannot be said that an agreement for sale, so as to transfer title and ownership of the land in question to a third party, could not have been executed by defendant no. 1. There is no legal bar in execution of such an agreement. It, thus, cannot be said that agreements for sale dated 24.8.1987 or 5.8.1988, were unenforceable due to execution of instrument dated 7.8.1987 by defendant no. 1 in favour of defendant no 2. Both the questions are answered, accordingly, and against the appellants.
20. Further the conduct of the defendant no. 1 also speaks volumes against him. The appellant knowing it well that there is a family arrangement or a limited gift, still proceeded to execute agreement for sale with the plaintiff and that too twice, and received money from him. This receipt of money is well within the knowledge of defendant no. 2 also inasmuch she herself has said in written statement that the money received from plaintiff was used by defendants in clearing money/amount they have taken from Om Prakash, with whom an earlier agreement for sale was executed by defendant no. 1. The chain of facts and transactions entered into by the defendants and their conduct as also the approach, firstly, denying the very execution of agreement to sale, and, thereafter, admitting the same, having failed to prove their defence of execution of document for surety, all demonstrate entire lack of bona fide on their part.
21. It cannot be doubted that relief of specific performance of contract is discretionary. However, this discretion does not mean whimsical and arbitrary discretion.
22. Section 10 of Act, 1963 provides cases where the Court exercising its discretion, may decline specific performance of any contract. The two such cases are :
"(a) when there exists no standard for ascertaining the actual damage caused by the non-performance of the act agreed to be done; or
(b) when the act agreed to be done is such that compensation in money for its non-performance would not afford adequate relief."
23. The explanation then talks of presumption which the Court has to draw unless and until contrary is proved and it says:
"Explanation.-Unless and until the contrary is proved, the Court shall presume-
(i) that the breach of a contract to transfer immovable property cannot be adequately relieved by compensation in money; and
(ii) that the breach of a contract to transfer movable property can be so relieved except in the following cases:-
(a) where the property is not an ordinary article of commerce, or is of special value or interest to the plaintiff, or consists of goods which are not easily obtainable in the market;
(b) where the property is held by the defendant as the agent or trustee of the plaintiff."
24. It has been held that once plaintiff seeking enforcement of contract is able to show his readiness and willingness, mere delay or laches would not justify refusal of specific performance of contract. In Ajit Prasad Jain Vs. N.K. Widhani and Ors., AIR 1990 Delhi 42 the Court said, grant of relief of specific performance is a rule and refusal an exception on valid and cogent grounds. This Court in Mt. Gaindo Devi v. Shanti Swarup and Ors., AIR 1937 All. 161 said that jurisdiction to decree specific performance is discretionary, but it must be understood that discretion of Court is not to be arbitrarily exercised but has to be guided by judicial principles.
25. In Hari Krishna Agarwala Vs. K.C. Gupta, AIR 1949 Allahabad 440, a Division Bench said that, mere hardship to the defendant will not affect discretion of the Court in enforcing specific performance of contract.
26. In Hari Narain Vs. Shiv Kumar 1990 (2) AWC 770, this Court took the view that delay by itself would neither amount to waiver nor abandonment nor acquiescence. The facts and circumstances justifying grant or refusal of enforcement of contract vary and plenty in number. No thumb rule can be penned down but are thing established in law is that such discretion cannot be arbitrary or whimsical.
27. The Apex Court also considered question about relief of specific performance being discretionary in S.V.R. Mudaliar (Dead) by Lrs. And Ors. Vs. Rajabu F. Buhari (Mrs) (Dead) by Lrs. and Ors., JT 1995 (3) SC 614 and observed, if granting of specific performance would make it "inequitable", the Court may not grant the relief. The discretion is not arbitrary but it must be sound and guided by judicial principles.
28. Looking to the facts of this case, and in view of discussion made above, it cannot be said that discretion exercised by Courts below is illegal or perverse so as to warrant interference by this Court. It is not the case of appellant that any relevant evidence has been ignored from consideration or any irrelevant or inadmissible evidence has been considered by the Courts below.
29. The question no. 3, therefore, is also answered against appellants and in favour of plaintiff-respondent.
30. In view of above, the appeal lacks merit. Dismissed.
Dt. 19.2.2013 PS