Bombay High Court
Asudamal S/O Laxmandas Sindhi vs Kisanrao S/O Wamanrao Dharmale And Ors. on 4 March, 2003
Equivalent citations: 2004(2)BOMCR361, 2003(4)MHLJ134
Author: V.M. Kanade
Bench: V.M. Kanade
JUDGMENT V.M. Kanade, J.
1. None appears on behalf of the respondents though served. Notice before admission was issued on 17-9-1990. This notice was served on the respondent Nos. 1 to 7. Thereafter, the matter was admitted on 10-4-1991. Notice on merits was served on the respondents and legal heirs of respondent No. 3 on 10-7-1992. Further all respondents have been served again on 10-4-2000. This is an old matter of 1990. The original suit was filed in the year 1978, in this view of the matter, the matter is heard finally.
2. This is a Second Appeal filed by the appellant, who is the original plaintiff, challenging the Judgment and order of the Second Additional District Judge, Amravati, who set aside the Judgment and Decree passed by the Second Joint Civil Judge, Junior Division, Daryapur.
3. Brief facts are as follows :
The original plaintiff filed a Regular Civil Suit No. 126 of 1978 for specific performance of contract or in the alternative for refund of earnest money with damages. It was the case of the original plaintiff that the defendant Wamanrao s/o Anyaji Dharmale entered into an agreement of sale of suit survey No. 49/2 admeasuring 2 acres, 34 gunthas of village Thillory, Taluka Daryapur, District - Amravati for a total consideration of Rs. 4,500/-. This agreement was reduced into writing on 23rd October, 1975 and the plaintiff paid an amount of Rs. 1,500/- towards earnest money to the defendant Wamanrao. It was the case of the plaintiff that the sale deed was to be executed on or before 15th April, 1976. The plaintiff's contention was that he was always ready and willing to perform his part of the contract. However, the original defendant avoided to execute the sale deed and hence notice dated 21st June, 1977 was served on the defendant for compliance of the contractual liability. Hence, the plaintiff filed the present suit on 26th October, 1978.
4. The original defendant Wamanrao filed his written statement, denied the execution of the agreement and it was his case that the agreement was executed by way of security for repayment of the loan advance. The contention of the defendant was that it was a loan transaction and that the plaintiff was doing money lending business without licence. It was further contended that original plaintiff was not an agriculturist and, therefore, purchase of agricultural land was invalid unless proper permission was obtained from the authority under the provisions of Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958.
5. The Trial Court framed issues and decreed the suit filed by the plaintiff by holding that the plaintiff had proved that the defendant had entered into an agreement of sale on 23rd October, 1975 for a consideration of Rs. 4,500/- and that he had paid earnest money of Rs. 1,500/- to the defendant. The Trial Court further gave a finding that the plaintiff was not carrying on money lending business and that the defendant had not proved that the agreement of sale was a loan transaction. The Trial Court further examined various other documents and came to the conclusion that the consideration in the agreement of sale was not inadequate and that the total consideration of Rs. 4,500/- was as per the market value of the land. The Trial Court, however, did not give any finding on issue Nos. 14, 15 and 16 by holding that the Trial Court had no jurisdiction to decide the said issue. These three issues are reproduced below :
(14) Do the plaintiffs prove that his family was an agriculturist family before coming to Vidharbha?
(15) Do the plaintiffs prove that the joint family was or is agriculturist family?
(16) Do the Defendants prove that Original Plaintiff Laxmandas was not an agriculturist?
6. The defendant preferred an appeal against the said judgment and decree by filing Regular Civil Appeal No. 228 of 1985 which was heard by the Third Additional District Judge, Amravati. The appellate Court set aside the Judgment and decree passed by the Trial Court and present appellant original-plaintiff has filed this Second Appeal challenging the Judgment of the lower appellate Court. The appeal was admitted on 10-4-1991 and the substantial question of law which was framed by this Court was as to whether under the provisions of Section 68 of the Evidence Act, it was necessary to examine the attesting witnesses to prove the agreement of sale, particularly when the signature and execution of the executor were admitted by the defendant in their written statement and oral evidence. Secondly, whether a decree for specific performance could be denied on the ground that the relevant permission which is required under Section 89 of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958 and lastly whether a suit which is filed for specific performance could be dismissed on the ground that there was a delay of 1 and 1/2 years for filing the suit from the date of agreement of sale though the suit was within the limitation as prescribed by the Limitation Act.
7. I have heard the learned counsel appearing on behalf of the appellant at length. She has taken me through the judgment and order of the appellate Court as well as trial Court. It is submitted by the learned counsel appearing on behalf of the appellant that the appellate Court had erred in coming to the conclusion that the agreement of sale was not proved on account of non examination of the attesting witnesses. She submitted that the learned District Court had clearly erred in relying on the said provision that for execution of agreement of sale it was not necessary to examine an attesting witness. She submitted that only in respect of a mortgage, Will, attestation witness had to be examined for proving the document. The said provision would not be applicable in respect to an agreement of sale. Section 68 of the Indian Evidence Act, 1872 reads as follows :
"Section 68. Proof of execution of document required by law to be attested.--If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence."
8. The learned counsel appearing on behalf of the appellant further submitted that the document of agreement of sale was properly proved, firstly by the plaintiff and secondly, the execution of the document was admitted by the defendant in the written statement. Similarly, the defendant in his deposition also admitted that the document was executed by his father and he recognised his signature. He also admitted that this document was written by Shri Ghurande in his presence at Daryapur and that he knew both the attesting witnesses and that they had singed the documents of agreement of sale Exh. 74 in his presence. He also admitted that Exh. 74 was signed by his father after the contents were read over to him. The relevant deposition of the defendant is reproduced below for ready reference.
"............ Exh. 74 bears the signature of my father. Exh. 74 was scribed by Shri Ghurade in my presence at Daryapur. I know both the attesting witnesses. Attesting witnesses signed Exh. 74 in my presence. The contents of Exh. 74 was read over. My father singed Exh. 74 after read over the contains of it........"
9. In my view, the findings given by the appellate Court that the isarchitthi i.e. agreement of sale was not proved because the plaintiff did not examine any of the attesting witnesses cannot be sustained. A perusal of Section 68 of the Indian Evidence Act would reveal that the provision of Section 68 of the Act are applicable only in respect of those documents which are required by law to be executed.
10. Section 2 Sub-clause (e) of the Indian Contract Act, 1872 defines an agreement of the contract which reads as follows :
"Every promise and every set of promises, forming the consideration for each other, is an agreement."
Section 10 of the Indian Contract Act, 1872 defines which agreement are contracts, which reads as follows :
"All agreements are contracts if they are made by the free consent of parties competent to contract, for a lawful consideration and with a lawful object, and are not hereby expressly declared to be void. Nothing herein contained shall affect any law in force in (India) and not hereby expressly repealed, by which any contract is required to be made in writing or in the presence of witnesses, or any law relating to the registration of documents."
11. None of the provision of the Indian Contract Act state that in order to prove an agreement it is necessary to examine the attesting witnesses. Only under the provision of the Indian Succession Act, for proving a Will, examination of attesting witness is essential. Thus, only where there is a specific provision made in the Act requiring that the document is to be attested then in such cases the examination of the attesting witnesses is necessary as laid down in Section 68 of the Indian Evidence Act. The finding of the appellate Court that though one of the attesting witness is alive, the original plaintiff was duty bound to examine him to prove the execution of the isarchitthi i.e. agreement of sale is, therefore, not correct.
12. The Judgment of the Apex Court which has been relied by the appellate Court reported in the case of H. Venkatachala Iyengar v. B. N. Thimmajamma and Ors., will not be applicable to the facts of the present case as the Apex Court in the said judgment reiterated that when a document is required by law is to be attested and an attesting witness is available then at least one witness should be called. The appellate Court had clearly erred further when it says that no value to the attestation by Asudamal i.e. son of the original plaintiff could be given though he was an eye-witness to the execution of the document. This finding is clearly illegal.
13. In my view, agreement of sale has been properly proved since the execution of the document was witnessed by Asudamal and the defendant has admitted the execution of the document in his presence and he has stated that his father had executed the documents in his presence and both the attesting witnesses also had executed the documents in his presence. In view of this admission also, the agreement of sale was properly proved by the plaintiff and the appellate Court, therefore, clearly erred in coming to the conclusion that the trial Court had committed a legal error in considering the isarchitthi i.e. agreement of sale as a valuable piece of evidence.
14. The second contention urged by the learned counsel appearing on behalf of the appellant was that the appellate Court had clearly erred in holding that the trial Court had erred in deciding the suit without making any reference to the tenancy Court to, decide the issue as to whether the plaintiff was an agriculturist or not. She submitted that the Civil Court was competent to pass a decree of specific performance of the contract in favour of the plaintiff with a condition that the decree would be executed only after the plaintiff obtained the necessary permission from the competent authority.
15. The learned counsel appearing on behalf of the appellant has relied on the judgment of the Apex Court reported in the case of Ajit Prashad Jain v. N. K. Wadhani and Ors., , which is a Judgment given by Shri Justice Y. K. Sabharwal (as he then was), wherein it has been held that the permission from Land and Development Office was not a condition precedent for grant of decree for specific performance. It after grant of the decree of specific performance of the contract the Land and Development Office refuses to grant permission for sale, the decree-holder would not be in a position to enforce the decree but it could not be held thai such a permission was a condition precedent of the contract.
16. In the said judgment, reliance was placed on one judgment of the Apex Court in the case of Mrs. Chandnee Widya Vati Madden v. Dr. C. L. Katial and Ors., The Apex Court in the said judgment has held that the Court could enforce the terms of the contract and direct the vendor to make the necessary application for permission. I am of the view that the finding given by the appellate Court that it was essential to refer the matter to the Tenancy Court for deciding the issue as to whether the plaintiff was an agriculturist or not was patently incorrect. It is a settled law that the reference of the issue to the revenue authority becomes necessary only when the issue is required to be settled or decided for the purpose of the decision of the suit. This view is already taken by this Court in the case of Baliram Maruti Satveka v. Dadu Govind Tipugade, reported in 1981 Mh.L.J. page 321.
17. In the present case, the plaintiff had filed a Regular Civil Suit for specific performance of the agreement of sale of an agricultural land owned by the defendant. Section 89 of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958 lays down that the prior permission of the Commissioner has to be obtained before the sale of the said land.
18. In my view, the lack of permission could not be an impediment in issuing a decree for specific performance. This view has been taken consistently in a series of judgments. The Delhi High Court in the case of Ajit Prashad Jain v. N. K. Wadhani and Ors., has observed as follows :
"The permission from Land and Development Office is not a condition precedent for grant of decree for specific performance. In Mrs. Chandnee Widya Vati Madden v. Dr. C. L. Katial, , the Supreme Court confirmed the decision of the Punjab High Court holding that if the Chief Commissioner ultimately refused to grant the sanction to the sale the plaintiff may not be able to enforce the decree for specific performance of the contract but that was no bar to the Court passing a decree for that relief. The same is the position in the present case. If after grant of the decree of specific performance of the contract the Land and Development Office refuses to grant permission for sale the decree-holder may not be in a position to enforce the decree but it cannot be held that such a permission is a condition precedent for passing a decree for specific performance of the contract. I may also notice that Section 27(1) of the Urban Land (Ceiling and Regulation) Act, insofar as it imposes a restriction on transfer of any urban or urbanisable land with a building or a portion of such building, which is within the ceiling area, was declared invalid by Supreme Court in Maharo Saheb Shri Bhim Singhji v. Union of India, and as such it may not be necessary to obtain permission under the said Act but that is not a matter with which I am concerned at this stage. Assuming such a permission is required that would be a matter for consideration after passing of the decree and at the stage of execution. No fault can be found out with the plaintiff's anxiousness to take possession in terms of the agreement on payment of the amounts stipulated therein."
19. Similarly, our High Court has also taken a similar view in a case of Balu Baburao Zarole and Ors. v. Shaikh Akbar Shaikh Bhikan and Ors., , The Apex Court in the case of Manzoor Ahmed Magray v. Ghulam Hassan Aram and Ors. with Manzoor Ahmed Margray v. Gulam Hassan Aram & Ors.
, has held that Section 3 of the J & K Prohibition on Conversion of Land and Alienation of Orchards Act, 1975 did not create a bar for the maintainability of a suit for specific performance and permission to alienate could be obtained by filing proper application after passing of decree.
20. The learned counsel appearing on behalf of the appellant relied on judgment of the Apex Court reported in the case of Gundaji Satwaji Shinde v. Ramchandra Bhikaji Joshi, . In the said case, the Apex Court set aside a finding given by the trial Court which had decided an issue which could be only decided by the Tenancy Court. In the said case, the trial Court itself had recorded a finding that the plaintiff was not an agriculturist. The Apex Court in this view of the matter held that it was not open for the Civil Court to decide this issue and the issue ought to have been referred to the tenancy Court. In the present case, the trial Court has also considered the aspect about the adequacy of the consideration and has held that the price at which the property was being sold was the market price, taking into consideration the other sale deeds which were executed at the relevant time. The trial Court as well as the appellate Court have given a concurrent finding that the plaintiff was not carrying on the business of money lending.
21. In this view of the matter, the finding of the appellate Court that the issue as to whether the plaintiff was an agriculturist or not ought to have been referred to the Tenancy Court will have to be set aside. Further it has come on record that the plaintiff has already obtained the certificate from the revenue authorities and he has been declared as an agriculturist on 1st September, 1985.
22. The learned counsel appearing on behalf of the appellant lastly submitted that the appellate Court had erred in holding that there was a delay in filing the suit on the part of the plaintiff which itself proved that the plaintiff was not entitled for relief of specific performance of contract. She submitted that the agreement was entered on 23rd October, 1975 and the sale deed was agreed to be executed on or before 15th April, 1976. A notice was served on the defendant on 21st June, 1977 and suit was filed in the trial Court on 26th October, 1978. In my view, the finding of the appellate Court that since the plaintiff had waited for a period of one and half year to file the suit from the date of issuance of notice and, therefore, there was a delay in filing the suit cannot be sustained.
23. It is an admitted position that the suit was filed on 26th October, 1978 and the sale deed was to be executed on or before 15th April, 1976. The suit in any case was filed within limitation. Merely because the plaintiff waited for sometime after issuing legal notice that by itself would not be a ground for debarring him from getting a decree of specific performance in his favour. This finding of the appellate Court to see the least is unsustainable in law.
24. Under the facts and circumstances of this case, I am of the view that the Judgment and order passed by the appellate Court will have to be set aside and order passed by the Second Joint Civil Judge, Junior Division, Daryapur will have to be confirmed. In the result, Second Appeal is allowed. The Judgment and order passed by the Third Additional District Judge, Amravati in Regular Civil Appeal No. 228 of 1985 is quashed and set aside. Under the circumstances, there shall be no order as to costs.