Bombay High Court
Prabhakar Balasa Saoji vs Subhash Baburao Malode And Ors. on 5 August, 2004
Equivalent citations: 2005(1)MHLJ306
Author: Anoop V. Mohta
Bench: Anoop V. Mohta
JUDGMENT Anoop V. Mohta, J.
1. This Second Appeal has been preferred by the original plaintiff/appellant herein against the original defendants/respondents herein and challenged the concurrent finding given by both the Courts below whereby, Suit of the appellant for possession was dismissed.
2. This Second Appeal was admitted on the law point mentioned in the Memo of Appeal on 27-2-1992 out of which following substantial question of law have been argued by the appellant.
"That the Exh. No. 119 should have been held as proved by the learned Additional District Judge in view of the fact that the attesting witness Govind had categorically deposed that the agreement at Exh. No. 119 was executed by Annasa in favour of Balasa and the same was attested by him and not considering the evidence of Govind by both the Courts below resulted into illegality and perversity and therefore, the judgment and order of the both the Courts below is unsustainable in law and liable to be set aside by this Hon'ble Court.
That the learned Additional District Judge has further erred in not considering the aspect that the agreement which is held to be proved by the Appellate Court i.e. partition memorandum dated 24-12-1932 which is Exh. No. 118 on record, refers to the right of pre-emption for the purpose of sale of the suit property by either of the party and therefore not considering the same tantamounts to illegality resulted into perversity and therefore, the order passed by Courts below are deserves to be set aside by this Hon'ble Court.
That the learned Lower Appellate Court has erred in holding that the Exh. Nos. 118 and 119 are not enforceable at law in view of Section 10 of the Transfer of Property Act. The Appellant submits that the Section 10 could not apply to the covenant of pre-emption and therefore, this is not the case which squarely covered under Section 10 and therefore the findings is perverse and thus liable to be quash and set aside by this Hon'ble Court.
That the learned Lower Appellate Court has further erred in holding that the claim on the basis of Exh. No. 119 is barred by limitation. The said findings is perverse inasmuch as Article 97 of the Limitation Act prescribes a limitation for a period of one year for the enforcement right of pre-emption and accordingly suit should have been filed within a period of one year from the date of the instrument of sale is registered. That in this case, the suit has been filed within a period one year from the date of execution of sale deed in favour of Defendants 1 to 4 and therefore the suit itself was in time and therefore the findings of both the Courts below on the limitation points is a perverse and based on no evidence and the same has been recorded without application of mind and therefore, the judgments of both the Courts below is unsustainable in the law and therefore, the same needs to be quash and set aside by this Hon'ble Court.
That the learned Lower Appellate Court has further erred in not considering the amendment which was allowed by the Lower Court and which was incorporated in the suit by an application dated 10-4-1979 and further erred in holding that the claim for specific performance of contract is barred by limitation the said finding is based on no evidence and contrary to material on record and provision of law and therefore the order of the learned Lower Appellate Court is illegal and liable to be quash and set aside by this Hon'ble Court That the learned lower Appellate Court has further erred in observing that there is no pleading of plaintiff in respect of readiness and willingness to perform the part of contract, the said observation is bad, as the plaintiff has pleaded before the Lower Court that he is ready to purchase the suit house as per the Exh. Nos. 118 and 119 and therefore, not considering the same by the learned Lower Appellate Court is bad in law and order passed by the Court below is liable to be quashed and set aside by this Hon'ble Court."
From the above, the basic questions of law can be formulated as under :
(1) Whether the concurrent findings given by the Courts below are perverse and unsustainable in law." No. (2) Whether the Suit was within limitation ? No. (3) Whether appellants/plaintiffs were ready and willing to perform their part of the contract. No. (4) What order?
Second Appeal dismissed and needs no interference.
Submissions:
3. Mr. Parsodkar in support of his submissions based on the above law points relied on AIR 1988 SC 881, Roshan Singh and Ors. v. Zile Singh and Ors., , Lakhi Baruah and Ors. v. Padma Kanta Kalita and Ors., AIR 1922 All. 239, Lala Brij Lal and Ors. v. Lala Damodara Das , Debi Dayal v. Ghasita and Ors., , Bulkan Sah and Ors. v. Ganga Devi Nathani and Ors. AIR 1960 Assam 178, Mahamud Ali Majumdar v. Brikodar Nath Nath and Ors. and additionally submitted, after going through the evidence and documents placed on the record, to remand the matter for fresh trial.
4. The learned counsel, Mr. Samudra, appearing for the contesting respondents Nos. 1 to 4 supported the orders passed by the Courts below and relied on the following cases. , Manohar Shivram Swami v. Mahadeo Guruling Swami (deceased by LRs.) and Ors., , Bhaurao Shamrao Bhalme and Ors. v. Mahadeo Raghu Yelekar, , Govindram Mihamai v. Chetumal Villardas, , Omprakash Berlia and Anr. v. Unit Trust of India, , Mohammed Yusuf and Anr. v. D. and Anr., , J. Siromani and Anr. v. Hemkumar and Ors., 2003(5) Mh.L.J. 722, Gulamuddin s/o Hisamuddin dead through LRs. and Ors. v. Mohd. Bashiruddin Mohd. Saifuddin and Anr.
Findings of Courts below :
5. The Appellate Court, in Regular Civil Appeal No. 28 of 1985, by judgment dated 27th November, 1990, while confirming the judgment and decree passed by the learned Civil Judge in Regular Civil Suit No. 13 of 1983 dated 11th July, 1984, held that the appellant-original plaintiff failed to prove that he is entitled to possession of the Suit property being heir of Ramsa, despite the Deed dated 12-4-1937. He further failed to prove that he has preferential right to purchase Suit property in view of Section 22 of the Hindu Succession Act. That the Suit is barred for non-joinder of necessary parties. The appellant failed to prove document dated 24-4-1937. However, the appellant prove the agreement dated 24-12-1932. The registration of the Deed dated 21-12-1932 was not necessary. Appellants further failed to prove right of pre-emption. Appellants claim on the Agreement dated 12-4-1937 was barred by limitation. The original defendant No. 1 to 4 respondents Nos. 1 to 4 herein, proved that they are bona fide purchasers. Therefore, the appellants was not entitled for specific performance of the agreement dated 24-12-1932 and 25-4-1937 and for any declaration in respect of the part of the suit property as prayed. The Appeal was, therefore, accordingly dismissed.
6. The above finding given by the Appellate Court was based on the reasoning given by the Courts below thereby, it was held that appellant failed to prove that Balasa and Ramsa formed the joint Hindu family and the same was partitioned/divided in the year 1932. There was no agreement between Balsa and Ramsa at the time of partition regarding selling of the property to other party and not to a stranger as per the written Deed dated 24-12-1932. The plaintiff further failed to prove that after the death of Ramsa, plaintiff alone was his heir and had acquired, amongst others, the Suit property by heir-ship. The plaintiff did not prove that Gayabai and the defendants were occupying the Suit property allotted to the share of Ramsa. The plaintiff did not prove that Annasa and defendant Nos. 1 to 8 very well knew about the agreement pre-emption entered into between Balsa and Ramsa. The plaintiff failed to prove that the defendant Nos. 5 to 8 sold the suit property to defendant Nos. 1 to 4 knowing well that an agreement of pre-emption was entered into between Ramsa and Balsa. Plaintiff further failed to prove that defendant Nos. 5 to 8 had no right, title and interest in the suit property and had a right of pre-emption and, therefore, was entitled for possession of the suit property. On the contrary, original defendants proved that the deceased Ramsa had gifted the suit property and other property to Annasa and further bequeathed his remaining property to Annasa under a Deed of Gift and Deed of Will dated 12-4-1937 and 19-7-1940. The defendants further proved that the agreement of pre-emption entered into between Balsa and Ramsa was a concocted agreement. The defendants proved that subsequent agreement of 1937 executed by Annasa in favour of Balsa was a fake document. The defendants proved that neither defendant Nos. 1 to 4 nor defendant Nos. 5 to 8 were bound by the alleged agreement of pre-emption entered into between Balsa and Ramsa. The defendants proved that the plaintiff, by his conduct, was estopped from challenging the Sale deed executed by defendant Nos. 5 to 8 in favour of defendant No. 1 to 4. The defendants proved that the plaintiff alone was not the heir of the deceased Ramsa and as such, the plaintiffs suit is bad for non-joinder of necessary parties. Defendants further proved that the suit is barred by limitation because the plaintiff did not exercise his right of preemption within the prescribed period of time from the date of Deed of Gift executed by Ramsa in favour of Annasa. The suit of the plaintiff was, therefore, accordingly dismissed.
7. After going through the evidence, as well as, the material placed on including Gift Deed (Exh. 69) dated 12-4-1937, Partition Deed (Exh. 118) dated 24-12-1932, Agreement between Balsa and Annasa (Exh. 119) dated 25-4-1937 and other evidence and material, as well as, the reasoning given by the Courts below, according to me also, the suit is liable to be dismissed and, therefore, has been rightly dismissed by the Courts below on the following facts and reasoning.
Facts and Reasoning :
8. The appellant-original plaintiff is the son of the Balsa. One Ramsa was Balasa's cousin. They were not real brothers, but still by a family arrangement and partition of 24-6-1932, the joint property was partitioned and the same was reduced into writing by document (Exh. 118) dated 24-12-1932. It was agreed therein that Ramsa would not transfer this property to anybody, except Balsa in case he intended to transfer the same. Ramsa had no issues. Ramsa's sister Dayabai was a widow. Dayabai's son is Annasa. The said Ramsa had gifted the suit property by Gift Deed dated 13-4-1937 (Exh. 69). It is alleged that Annasa had also executed separate document in favour of Balsa on 25-4-1947 (Exh. 119) with a condition that he would abide by the agreement that had been entered into by Ramsa in favour of Balsa at the time of Partition Deed dated 24-12-1932 and endorsed and/or reiterated that he would sell the property only to Balsa in the event he decides to sell and not to any other person. This document was placed on the record by amendment by the plaintiff-appellant sometime in the year 1979. Exhibit 119 was signed only by Annasa. There is no signature of Balsa. The said document was witnessed by Gopal, Jankiram and Govinda. This document, admittedly, was executed after thirteen days from the Gift Deed (Exh. 69) dated 12-4-1937 between Ramsa and Annasa. Exhibit-119 was executed by Annasa without the signature of Balsa, but is alleged to be an agreement between Annasa and Balsa. The said Balsa died in 1962. Annasa's heirs executed an agreement/sale Deed dated 15-12-1971 and sold the property in question i.e. by respondents Nos. 5 to 8 (original defendant Nos. 5 to 8) to respondent Nos. 1 to 4 herein. There was no challenge to the said Sale Deed by the appellants.
9. The appellants plaintiffs filed the Suit No. 82 of 1972 for possession on the basis of heirship and right of pre-emption on 19-4-1972. The plaintiff led evidence of one Govinda (PW 2) and Anandilal (PW 3). The original defendants examined Baburao and Dattu. Defendants Nos. 5 to 8 examined one Manglabai. The said suit was decided by judgment and decree. The plaintiff had filed the Regular Civil Appeal No. 245 of 1979. The District Judge allowed the Appeal and remanded the Suit back for fresh trial. The said Suit was re-numbered as Regular Civil Suit No. 13 of 1983. The said re-numbered Suit was dismissed on 11-7-1984. It was appealed vide Regular Civil Appeal No. 13 of 1983. The said Appeal was also dismissed on 27-11-1990. Therefore, the present Second Appeal by the appellant.
Non-joinder of necessary party :
10. From the above facts, it is very clear that Ramsa had executed a Gift Deed dated 12-4-1937 in favour of Annasa (Exh. 69). Ramsa died issueless. Annasa's mother Gayabai, sister of Ramsa, died in the year 1963. Balsa died in the year 1962. Balsa died in the year 1962. Balsa had other issues also as observed by the Court below. Appellant Prabhakar is not the only issue. The finding given by the Court below so far as this aspect is concerned of non-joinder of necessary party, basically remained unchallenged and undisputed. This aspect also goes to the root of the matter to maintain the judgment and decree passed by the Court below.
Basic unchallenged documents:
11. The Sale Deed executed by defendant Nos. 5 to 8, heirs of Annasa, to whom the property was gifted by Ramsa by Gift Deed dated 12-4-1937, also remained unchallenged. The said Sale Deed dated 15-12-1971 executed by defendant Nos. 5 to 8 in favour of defendant Nos. 1 to 4 was duly registered and became final and binding upon the parties. Therefore, the rights which are created in favour of the respondent Nos. 1 to 4 as crystallized in the year 1971 and till this date, remained unchallenged. I see there is no reason now to revoke and/or accept the case of the appellant-plaintiff as contended in this case.
Unreliable document exhibit-119:
12. One more facet which needs attention is that, as alleged, by Exhibit- 119 dated 25-4-1937, Annasa and Balasa had executed an agreement after 12 days from the Gift (Exh. 69) executed by Ramsa in favour of Annasa whereby, Annasa had agreed not to sell the said property to anyone else, except Balsa. This document, as referred above, is signed only by Annasa even though it is titled as an "Agreement" and name of Annasa is mentioned therein. This document was not initially placed on the record by the appellant-plaintiff when the Suit was filed in the year 1971 for this first time. This Exhibit-119 was placed on the record and/or brought on the record by the amendment made sometime in the year 1979, on a foundation that they found this document at a later stage and, therefore, brought the same on the record. It may be noted here that by this time, Sale Deed dated 15-12-1971 was executed by defendant Nos. 5 to 8 in favour of defendant Nos. 1 to 4. Therefore, by this amendment in the year 1979, practically after eight years, Exhibit-119 i.e. the alleged document was brought on the record of the Suit. As pointed out, we have seen the original Exhibit-119 dated 25-4-1937. it was signed only by Annasa. It was witnessed by three witnesses. One Govinda has been examined by the plaintiff in support of this document. The stamp used herein, as contended by the counsel appearing for the plaintiff further shows that this is a 30 years old document. But, as a witness - Govinda was available, he was examined. Learned counsel for the appellant, however, contended that in view of Section 90 of the Evidence Act and based on the settled principle as laid down in Lakhi Baruah (supra), that the presumption of due execution of such 30 years old document must be applied in favour of the appellant. Such document and its contents are final and binding, and cannot be said to be forged and/or fabricated. Therefore, on this ground itself, the Courts below ought to have allowed the Suit, as prayed. He relied specifically on the following paragraph No. 15 in Lakhi Baruah's case.
"Section 90 of the Evidence Act, 1872, is founded on necessity and convenience because it is extremely difficult and sometimes not possible to lead evidence to prove handwriting, signature of execution of old documents after lapse of thirty years. In order to obviate such difficulties or improbabilities to prove execution of an old document. Section 90 has been incorporated in the Evidence Act, 1872 which does away with the strict rule of proof of private documents. Presumption of genuineness may be raised if the documents in question is produced from proper custody. It is, however, the discretion of the court to accept the presumption flowing from Section 90. There is, however, no manner of doubt that judicial discretion under Section 90 should not be exercised arbitrarily and not being informed by reasons. "
He, therefore, further contended that such document cannot be said to be forged, fabricated and/or false. This perversity, as recorded by the Courts below, needs interference and, therefore, the Second Appeal should be allowed. To this, the learned counsel appearing for the respondents relied on Gulamuddin (supra), Mohd. Yusuf. Omprakash and contended that even if this document is 30 years old, that by itself is not sufficient to hold that the contents of the said documents are proved. The party has to lead proper and appropriate evidence to support the contents of the said documents. As appellant-plaintiff failed to prove the contents of the document and as this document is false, fabricated and unreliable, there is no question of interfering with the order passed by the Courts below.
13. The reasoning given by the Appellate Court, so far as agreement dated 24-124932 is concerned, there is no dispute or denial and/or defendants failed to disprove the said partition and/or document dated 24-12-1932. That document is also more than 30 years old. The presumption under Section 90 also applies to this document in respect of handwriting and signature. Therefore, the contents as observed, should be presumed to have been proved as remained unchallenged by the parties. There is no evidence on the record to rebut the presumption. Therefore, Exhibit 118 dated 24-12-1932 and the contents therein are proved.
14. Mr. Samudra, learned counsel for the respondents relied on Gulamuddin s/o Hisamuddin (supra) and contended that the presumption as to document of 30 years old applies only to document which bears the signature of the writer or witness and presumption only relates to the signature on the document and not the contents of the said document. The said presumption is discretionary and so where a document is suspicious on the face of it, the Court may refuse. It is necessary to call upon the party to offer other proof. The presumption only relates to the signature on the document though it does not involve any presumption that its contents are true and they have been acted upon. In the present case, according to me also, both the Courts rightly came to the conclusion that the document relied by the appellant i.e. Exhibit 119 is a suspicious document. The contents are not proved. There is no sufficient evidence to show that on the basis of the said document parties have acted. The document is signed by only one of the party even though it is mentioned as "Agreement". The said document was also admittedly not registered.
15. In Omprakash Berlin and Anr. (supra), the Bombay High Court has explained the expression "contents of document" and "proof of contents thereof based on Sections 61, 62, 63, 65, 67, 74-90 and 114 of the Evidence Act and based on earlier judgment of our Court , Mohd. Yusuf and Anr. v. D. and Anr. The relevant paragraph is reproduced as under :
"The reason on which the decision of Bhagwati J. is based is not far to seek. The evidence of the contents contained in the document is hearsay evidence unless the writer thereof is examined before the Court. We therefore, hold that the attempt to prove the contents of the document by proving the signature or the handwriting of the author thereof is to set at naught the well recognised rule that hearsay evidence cannot be admitted."
In view of the reasoning given above, and in the facts and circumstances of the case, as observed concurrently by the Courts below, I am also of the view that the appellants failed to prove the contents of the document and the facts mentioned therein. Admittedly, the writer of the document was not examined. No other evidence has been led to support the contents of the said document. The facts and circumstances of the case also and/or the evidence led by the parties claiming the benefit of the said document were unable to substantiate and/or bring on record any other evidence in support of their case.
Memorandum of Partition and its Registration :
15-A. The law is settled that if it is a Memorandum of Partition, there is no need for registration. Such Memorandum of Partition cannot be said to be a Deed of Partition. In the matter in hand, there is no dispute or challenge to this partition. The issue of non-registration of such document and its admissibility has been decided rightly by the Courts below. The Judgment in Roshan Singh (supra) relied by both the parties itself crystallizes this issue in paragraph 16, the extract of which is reproduced as under :
"16. ...........The document Exh. P-12 does not effect a partition but merely records the nature of the arrangement arrived at as regards the division of the remaining property. A mere agreement to divide does not require registration. But if the writing itself effects a division, it must be registered. See : Rajangam Ayyar v. Rajangam Ayyar, (1923)69 Ind Cas 123 : (AIR 1922 PC 266) and Nani Bai v. Gita Bai, . It is well settled that the document though unregistered can however be looked into for the limited purpose of establishing a severance in status, though that severance would ultimately affect the nature of the possession held by the members of the separated family as co-tenants. "
However, as rightly observed that at this stage in this matter, want of substantial challenge to the said Partition, which was executed and accepted and agreed by the parties even before 24-12-1932, cannot be overlooked. Therefore, the reasoning given by the Court below, according to me also, is proper on this issue of partition, as well as admissibility of such document.
16. The Apex Court decision in J. Siromani (supra) further clarifies the effect of non-registration of a document effecting partition of joint family properties. It is observed that in absence of such registration, it is admissible to prove title of any of the coparceners to any of the property. However, such document is admissible to prove an intention of the coparceners to become divided in status. It is also based on the earlier Supreme Court judgment , Nani Bai v. Gita Bai. Therefore, in view of the above settled position of law also, the concurrent findings need not be disturbed.
17. The reliance on Balkan Sah and Ors. v. Ganga Devi Nathani and Ors. (supra) by the appellants is also not assisting the appellants in view of the Supreme Court judgment, as referred above. Even this judgment also explains and declares that the family arrangement is not a transfer within Section 5 of the Transfer of Property Act. Therefore, on facts also, this case is distinguishable. The provisions of Section 10 of the Transfer of Property Act definitely envisages that the condition of absolute restraint of alienation is void. In the present case, there is no such case made out.
18. In Lala Brij Lal and Ors. v. Lala Damodara Das (supra), as relied upon by the appellant, based on the deed and/construction of a particular document, right of preemption was decided. Therefore, on facts itself that case is distinguishable and is not applicable to the circumstances of the case before us. It is observed therein : "The essential thing is not the description of the document, but its effect."
No right of preemption :
18-A. Once the above document remained unchallenged and same was incorporated in the document (Exh. 119) dated 25-4-1937 and thereby contended that the said agreement/partition dated 24-12-1932 read with the agreement dated 25-4-1937 were sufficient to accept the case of the appellant-plaintiff. Both the Courts below, however, rejected this contention of the plaintiff-appellant and disbelieved the plaintiffs case of right of pre-emption and of possession on the foundation that the subsequent agreement of 1937 alleged to have been executed by Annasa in favour of Balasa was a fake document by observing as under :
"Contents of Exh. 69 clearly shows that deceased Annasa was put into possession of the suit site along with other property. However, the contentions of Exh. 119 shows that ["hi vernacular"] when the gift deed was already executed on 12-4-1937 i.e. prior to execution of document Exh. 119 i.e. dated 25-4-1937 the writing of the above sentence as mentioned by him was not necessary at all. It clearly shows that Exh. No. 119 is concerned document. Similarly, Exh. 118 which is registered 30 years old document clearly shows by need eyes the signature of Annasa on Exh. 119 not in his own hand-writing. The plaintiff has also admitted during the cross-examination that he cannot identify the signature of deceased Annasa and he was not present when the agreement was written. Shri K. S. Deshmukh, Advocate for the defendants has submitted that the plaintiff has mentioned the fact of any agreement in his notice Exh. 127 and thus it clearly shown that the documents are faked and concocted."
The Appellate Court has dismissed the right of preemption based on Exhibit-118 and Exhibit-119 additionally on the following reasonings, which are reproduced as under :
"His challenge to gift was very feeble. Defendants have proved the gift deed Exh. 69 and have also examined attesting witness. Defendants statement about gift on oath is nowhere challenged in the cross- examination. So also, no arguments are advanced before me in respect of challenge to gift-deed.
The further reasoning as verified from the record and evidence also needs no interference to the issue that the handwriting and the signature of Annasa on Exhibit-119 was not proved.
"All these factors are more than sufficient to conclude that Annasa had become owner of the suit property through gift deed Exh. 69 and hence the plaintiff cannot claim possession on the basis of his heirship from Annasa.
Undisputedly the properly has passed from Ramsa to Annasa. This transfer took place in the year 1937 and at that very time preferential right came to an end. Balasa should have claimed preferential right in the year 1937 itself when the property was gifted by Ramasa to Annasa."
As already observed above, even if document is proved, unless the contents are proved by due and proper evidence, in the facts and circumstances of the case, it is difficult to interfere with the concurrent findings given by the Courts below that the appellant-plaintiff failed to prove any right flowing from Exhibit-119. Therefore, in this background, if Exhibit-119 is not proved, as observed above, by the Courts below, I am also of the view that the plaintiff had no right to enforce any right of preemption, as claimed.
18-B. In Debt Dayal v. Ghasita and Ors. (supra), the Supreme Court observed on merit, that was a suit for pre-emption governed by the enforcement of a special contract between the parties. It was also observed therein that under the said agreement, there was no absolute restraint or alienation and Section 10 of the Transfer of Properly Act is obviously inapplicable. In the present case also, no case is made out by the appellants, as contended, based on Section 10 of the Transfer of Property Act.
19. Insofar as appellants case based on Section 10 of the Transfer of Property Act, the Appellate Court rightly observed that Exh. 119 is not enforceable in law in view of Section 10 of the Transfer of Property Act and, therefore, the findings of the Courts below cannot be said to be perverse. In view of the above findings, as the contents of the document itself were not sufficient to grant any relief to the appellant read with the other facts and circumstances of the case, this issue also looses its strength. Mr. Samudra placed reliance on Manohar Shivram (supra) whereby said contentions were held to be void under Section 10 of the Act. However, according to me, on merit itself appellants were not entitled for any relief, as observed rightly by the Courts below.
20. The appellants reliance on Mahamud Ali (supra) is also not helpful to them to support their contentions based on the facts of that case and the observation, which needs to be noted, is an under :
"Section 10 also did not apply for two reasons. Firstly, no property had been transferred under this agreement. The property had only been transferred under different kabalas. Secondly, the condition imposed of limitation placed on the right of transfer was not an absolute one."
In the present case, as already observed, no right was created in favour of the appellants. It is also observed :
"It cannot be disputed that the right of preemption had its origin in an agreement, but each agreement which is the foundation of the plaintiff's right in a case, has to be interpreted on its own language. This right has been called a primary right or inherent right. The pre-emptor also has a secondary right or a remedial right to follow the thing sold and that right is a right of substitution and not a right of repurchase. Unless, therefore, under the agreement, a right to the offer of the thing to be sold is conferred, it cannot be said that the parties to the agreement have acquired any right of pre-emption under the agreement. "
21. In the present case, as observed by the Courts below, appellants have no right of pre-emption as they have failed to prove the same.
No specific performance/readiness and willingness :
22. The Appellate Court further observed that assuming the Exhibits-118 and 119 are agreements and those documents were executed by Ramsa and Annasa still appellant failed to prove his case of specific performance of the contract as he never pleaded readiness and willingness and his right was barred by the limitation.
23. In Bhaurao Shamrao Bhalme (supra), the Bombay High Court observed, by referring to Section 20 of the Specific Relief Act that in a suit for specific performance of the contract, there should be exhaustive averments in the plaint about the willingness to perform his part of the contract and secondly, he must also prove the same if the averments are contrary and, therefore, failure to make such averment and fail to prove the readiness and willingness, such suit for specific performance needs to be dismissed. However, the said discretion is required to be exercised in accordance with the sound and reasonable judicial principles, based on the facts and circumstances of the case. In the present case, according to me, both the basic elements of specific performance were missing and, therefore, on that count also, the appellants are not entitled for any specific relief, as prayed. , Pran Raj v. D.L.E. Housing and Construction (Private) Ltd. has laid down the basic foundation of the law of specific performance as referred above.
Limitations: Time Bar
24. Plaintiffs suit is of 1972, based on Exhibit-119 which was brought on the record by amendment dated 10th April, 1979. In view of this, there was no question of showing readiness and willingness and as limitation period for enforcing specific performance is three years from the date of refusal and the present Suit was filed in 1972 for enforcement of alleged right of Exhibit-119, is time barred and cannot be accepted as observed by the Appellate Court also. The right which accrued in favour of the parties cannot be taken away even if such amendment was allowed in the year 1979 in the facts and circumstances of the case as and on the face of the record, such specific performance and such prayer cannot be allowed after a period of three years. The claim was time barred. Even otherwise, on merit, concurrent findings cannot be interfered with.
25. The Courts below rightly held that when Exhibit-69 is read with the above facts and circumstances, the claim of the appellants/original plaintiff was time barred. Admittedly, the suit was filed within a period of one year from the date of execution of the Sale Deed dated 15-12-1971 in favour of the respondents Nos. 1 to 4. Admittedly, the basic document which was executed in the year 1937 (Exh. 119) based on which appellants/plaintiffs were claiming the enforcement of pre-emption, on the face, it reflects that such suit was beyond limitation in view of Article 84 of the Limitation Act which prescribes limitation of a period of one year for the enforcement of the right of pre-emption. On the undisputed position on the record itself, both the Courts rightly held and dismissed the Suit accordingly. The document Exh. 119 was also not the foundation of the suit. It was brought on the record in the year 1979 by amendment. Therefore, also, suit based on pre-emption right from the date of sale deed 15-12-1971 cannot be said to be within limitation.
Conclusion:
26. Considering the overall circumstances and facts of the case, apart from the concurrent findings given by the Courts below, according to me, there is no substantial question of law, as such, involved in the present matter. The findings given by the Courts below are within the framework of law and the record. There is nothing perverse or contrary to the record. The reasonings are sustainable in law and, therefore, the Second Appeal filed by the appellants is dismissed with no order as to costs.