Madhya Pradesh High Court
Gajanand vs Smt. Manju Devi on 26 July, 2024
Author: Hirdesh
Bench: Hirdesh
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IN THE HIGH COURT OF MADHYA PRADESH
AT I N D O R E
BEFORE
HON'BLE SHRI JUSTICE HIRDESH
FIRST APPEAL No. 574 of 2000
BETWEEN:-
1. GAJANAND S/O MAHADEVI VERMA (Deleted as per C.O. dated 12.12.2014)
AGED-68 YEARS, OCCUPATION-RETIRED,
R/O 18/2 MAHESH NAGAR, INDORE (MADHYA PRADESH)
2. SMT. SAVITRIDEVI W/O GAJANAND VERMA
AGED-65 YEARS, OCCUPATION-NOTHING,
R/O 18/2 MAHESH NAGAR, INDORE (MADHYA PRADESH)
3. TEJKARAN S/O GAJANAND VERMA
AGED-30 YEARS, OCCUPATION-DRIVER
R/O 18/2 MAHESH NAGAR, INDORE (MADHYA PRADESH)
4. CHANDRAKANT S/O GAJANAND VERMA
AGED-30 YEARS, OCCUPATION-SERVICE
R/O 18/2 MAHESH NAGAR, INDORE (MADHYA PRADESH)
5. RAMKRISHAN S/O GAJANAND VERMA
AGED-40 YEARS, OCCUPATION-SERVICE
R/O 18/2 MAHESH NAGAR, INDORE (MADHYA PRADESH)
.....APPELLANTS
(SHRI SANJAY P.JOSHI, LEARNED COUNSEL FOR THE APPELLANT NO.1
[LR/S].
(SHRI SHAILENDRA POLEKAR, LEARNED COUNSEL FOR THE
PETITIONER [P-1][LR/S])
AND
1. SMT. MANJU DEVI W/O GAJENDRAKUMAR JI JAIN
AGED ABOUT 37 YEARS, R/O 16/2, MAHESH NAGAR, INDORE
(MADHYA PRADESH)
2. GAJENDRAKUMAR JAIN S/O CHIMANLAL JI JAIN, AGED ABOUT 40
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YEARS, R/O 16/2, MAHESH NAGAR, INDORE (MADHYA PRADESH)
3. SMT GULABBAI JAIN W/O CHIMANLAL JI JAIN, AGED ABOUT 60
YEARS, 16/2, MAHESH NAGAR, INDORE (MADHYA PRADESH)
.....RESPONDENTS
(SHRI REVAT SINGH RAGHUVANSHI, LEARNED COUNSEL FOR THE
RESPONDENT [R-3].
(SHRI NITIN SINGH BHATI, LEARNED COUNSEL FOR THE RESPONDENT
[R-2])
RESERVED ON : 01.02.2024
PRONOUNCED ON : 26.07.2024
This first appeal coming on for orders this day, the court passed
the following:
JUDGMENT
This first appeal under Section 96 of CPC has been filed by the defendants/appellants challenging the judgment and decree dated 26.07.2000 passed by Additional District Judge (Special Judge), Indore in civil suit No.25-A/99, which was filed by the respondents/plaintiffs for specific performance and permanent injunction of the suit house.
2. Brief facts of the case are that plaintiffs/respondents filed a civil suit before the trial court and pleaded that plaintiffs and defendants entered into an agreement to sale dated 13.10.1996 for purchase of house bearing plot No.18/02, Mahesh Nagar, Indore wherein defendants agreed to sell the said house for sale consideration of Rs.18,51,000/- and also received earned money of Rs.4 Lacs. Agreement was in the name of plaintiff-Manjudevi and defendant -Gajanand. In agreement dated 13.10.1996 both the parties agreed that they will be executing the sale- deed till 15.11.1996 after receiving the rest of the amount which was extended to 15.12.1996.
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3. Plaintiffs got published Jaahir Soochna in delay news-paper 'Nai Dunia' inviting objection on 05.11.1996. On 14.11.1996, plaintiffs sent a legal notice through his advocate to the appellants/defendants and defendants sent reply to legal notice dated 14.11.1996 to 16.11.1996. Again plaintiffs sent a reply. Then after, plaintiffs again sent a legal notice Ex.P-9 to the defendants/appellants and appellants sent reply to the legal notice i.e. Ex.P-10.
4. Plaintiffs pleaded that he is always ready to perform the condition of the agreement and also showed readiness and willingness to execute the agreement to sale but defendants did not fulfill the contention of the agreement and also did not try to take any objection from income tax office and defendants were not ready to vacate the possession. On 18.04.1996, appellant invited a person Rakabchand along with one more person who inspected and visited the disputed house. Appellants were intending to sell the disputed house even after plaintiffs' filing the civil suit before the trial court for specific performance and permanent injunction.
5. The defendants/plaintiffs filed a written statement and denied all averments and pleaded that plaintiffs are not ready and willing to perform the execution of the agreement. On the request of the plaintiffs, the date of the execution of sale deed was extended because plaintiffs had no sufficient amount to pay the sale consideration. Plaintiff is unable to prove his readiness and willingness. Plaintiffs themselves have committed breach of condition of the agreement so he is not legally bound for specific performance of the sale deed and prayed for rejection of the suit/
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6. Trial court on the basis of the pleadings of both the parties framed the following issues:-
"1- D;k oknh 1 esa izfroknhx.k dks oknxzLr edku dh jftLVªh xtsUnzdqekj] Jherh eatw ,oa xqykckcbZ ds uke ls djkusa dh lwpuk izfroknhx.kdks ns nh 2- D;k oknh }kjk fookfnr edku dh jftLVªh xtsUnz dqekj] eatw ,oa xqykcckbZ ds uke ls djkus ds dkj.k fodz; vuqca/k 13-12-96 dh 'krkZ dk [kaMu gksrk gS\ 3- D;k oknh Ø-1 fookfnr edku dh 'ks"k jkf'k izfroknhx.k dks Hkqxrku dj fookfnr edku dk iath;u djkusa ds fy;s ges'kk rRij jgk gS\ 4- D;k oknh }kjk fuf'pr le; lhek ij vuqca/k dk ikyu uk djusa ij vuqc/a k fujLr gksusa vksj mlds ifj.kkeksa dh lwpuk izfroknhx.k esa oknhA dks ns nh Fkh\ 5- vlarks"k ,oa O;;\ vfrfjDr okn iz'u 6- D;k oknh }kjk izfroknh dks foØ; jkf'k dh 'ks"k jkf'k nsusa ds i'pkr gh izfroknh dks vuqca/k vuqlkj oknxzLr edku dk [kkyh dCtk nsusa gsrq oknxzLr edku [kkyh djuk Fkk o foØ; jftLVªh gsrq vk;d izek.ki= ysuk Fkk\ 7- D;k izfroknh }kjk vuqc/a khr vof/k esa vuqcfa /kr edku dh foØ; jftLVªh djus gsrq vk;dj izek.ki= ugha ysdj o vuqc/a k vof/k esa edku dk [kkyh dCtk nsus gsrq oknxzLr edku [kkyh ugha fd;k gksus ls izfroknh us vuqcU/k dks Hkax fd;k gS\ 8- d;k izfroknh oknxzLr edku fdlh vU; dks foØ; djuk pkgrs gksus ls o mldk dCtk fdlh vU; dks nsuk pkgrs gksus ls] oknh mDr lac/a k esa izfroknh ds fo:) LFk;h fu"ks/kkKk ikus dk ik= gS\ 9- tks foØ; vuqca/k gqvk gS] mldh 'krZ Øekad B esa ;g LiLV :i ls fy[kk gqvk gS fd ;fn fodz; izfrir dh cdk;k /kujkf'k vnk djus ds
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mijkar Hkh izFke i{k ds f}rh;i{k ds fgr esa ;k muds funZsf'kr O;fDr ds uke ij mdr laifRr ds foØ; foys[k dk fu"iknau ,oa iath;u dks C;kus dh jkf'k dh nqxuh ;kus vkB yk[k :i;s vnk djsxsa\ 10- D;k vuqca/k dk pj.k B {kfriwfrZ ds Li:i dk gksus ls oknh dk okn foØ; vuqca/k dh fof'k"V iwfrZ ds fy;s pyus ;ksX; ugha gS\"
7. Trial court took the evidence of both the parties and after hearing the arguments of both the parties decreed the suit filed by the plaintiffs.
8. Being aggrieved by the impugned judgment and decree filed this appeal and submitted that trial court has committed error in passing the impugned judgment and decree in favour of the plaintiffs because it is the duty of the plaintiffs/respondents to prove that he had sufficient amount to pay the sale consideration at the time of the execution of the sale-deed. Plaintiff is unable to prove the readiness and willingness. The evidence adduced by the plaintiffs before the trial court, none of the witnesses of the plaintiffs was able to prove that they were coming with sale consideration within time so readiness and willingness of the plaintiff was not duly proved. Witnesses of the plaintiffs are interested witnesses and they were not able to prove that they had sufficient amount in their account so there evidence are not supported by any documentary evidence.
9. Learned counsel for the appellants further submits that trial court has committed error in holding the findings that delivery of possession of suit property and appellants' sale consideration was simultaneously. Learned counsel for the appellants further submits that according to the agreement to sale Ex.P-1 it is the duty of the plaintiffs firstly to pay sale consideration to the appellants then after appellants were duty bound to vacate the possession and execution of the sale deed. He further submits
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that trial court has committed error in holding that condition No.8 of the Ex.P-1 was unnatural and also committed error in holding that suit is tenable. So he prays for setting aside the impugned judgment and allowing the appeal.
10. Learned counsel for the appellants has placed reliance upon the following judgments:-
"(i) Gopal Krishnaji Ketkar Vs. Mahomed Haji Latif and others, 1968, AIR (SC) 1413.
(ii) Bahubal Vs. Shafi Mohammad, ILR (2008) M.P., 2072.
(iii) Gyaneshwar Vs. Smt. Moongabi @ Muneshwaribai and another, 2006 (2) JLJ 170.
(iv) Rekha Singh Vs. Babu Singh, AIR 2002 Punjab and Haryana 270.
(v) Smt. Mohini and others Vs. Smt. Vidhyawati Rathore and others, 2004 (3) MPHT 68.
(vi) Abdul Hanef Vs. Mohd. Sehjad and another, 188 MPWN, 2006 (III).
(vii) Babulal S/o Bacharaj Ji Vs. Shafi Mohammad, 2008(4) MPHT 264.
(viii) Phoolchand Garg Vs. Gopal Das Agrawal & others, 2002 (I) MPJR SN 32.
(ix) Ammilal Vs. Kamla Bai, 2009 (4) MPLJ 631.
(x) Nirmal Kumar Vs. Kanta Devi, 2007 (4) MPLJ
464.
(xi) His Holiness Acharya Swami Ganesh Dassji Vs. Shri Sita Ram Thapar, 1996 AIR SCW 2522.
(xii) Abdul Haneef V. Mohd. Sehjad and another, MPWN 2006 (III), 188.
(xiii) Smt. Chand Rani (Dead) by LRs Vs. Smt. Kamal Rani (Dead) by LRs, (1993) 1 SCC 519.
(xiv) Karan Singh Vs. Maya Ram, 408 Seekly Notes, 1985.
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(xv) Matadin Yadav (Deceased) through LRs Vs. M/s. Midas Lids P. Ltd, AIR 2014 (NOC) 295 (DEL.) (xvi) Bal Krishna and another Vs. Bhagwan Das (Dead & ors, ILR [2008] M.P., 1340.
(xvii) Mahesh Chandra Gupta another Vs. A.K. Mishra, 1999 (2) JLJ 386.
11. On the other hand, learned counsel for the respondents/plaintiffs supported the impugned award and submitted that the trial court has rightly decreed the suit filed by the plaintiffs.
12. It was undisputed that plaintiff and defendant entered into an agreement to sale dated 13.10.1996 for purchase of house bearing plot No.18/02, Mahesh Nagar, Indore wherein defendants/appellants agreed to execute the sale-deed of the house for sale consideration of Rs.18,51,000/- and Rs.4 lacs in advance. It is was also admitted that defendant No.1 Savitri Bai and defendant No.2 Tejkaran. Defendant No.4 Chandrakant and defendant No.5 Ramkrishna who are the appellants in present appeal, gave consent for this agreement Ex.P-1. In the agreement, Ex.P-1 it is mentioned as follows:-
"3- ;g fd] fodz; izfrQYk dh 'ks"k jkf'k :i;s 14]51]000-00 ¼v{kjh :i;s pkSng yk[k bD;kou gtkj dsoy½ f}rh;i{k] izFkei{k dks fnukad 15@11@1996 rd nsdj lnj lEifRr ds foØ; i= dk iath;u e; fjDr dCts ds vius uke ls ;k vU; fdlh Hkh funZsf'kr uke ;k ukeksa ls djok ysox sa s rFkk blesa izFkei{k mtj ugha djsx a sA f}rh;i{k pkgs rks ,d ls vf/kd Hkkxksa esa Hkh lnj lEifRr ds foØ; i=ksa dk a sA"
iath;u djok ldsx The agreement was extended from 15.11.1996 to 15.12.1996.
13. Learned counsel for the appellant's first concern is that respondent/plaintiff did not show her readiness and willingness to perform the agreement to sale. He further submits that plaintiff was
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unable to give rest amount within the stipulated time and she did not give any registry proforma to the defendant. He further submits that plaintiff is unable to produce any pass-book before the trial so the fact of having sufficient fund with the plaintiff is not duly proved. Finding of the trial court is perverse in this regard. He further submits that the duty lies upon the plaintiff to establish her readiness and willingness. If rest fund was not available with the plaintiff then she was not entitled to get decree for specific performance. He further submits that readiness and willingness for the purpose of seeking decree of specific performance implies monitory potential to pay the consideration and mental preponderance to perform the part under the contract.
14. He further submits that it is bounden duty of the plaintiff to prove his readiness and willingness by adducing the evidence. It includes availability of funds and mere statement or averments in plaint of readiness and willingness would not suffice. He further submits that the conduct of the plaintiff and circumstances are not sufficient to infer readiness and willingness of the plaintiffs.
15. He placed the reliance upon the judgment delivered in the cases of Smt. Godavari Bai Vs. Pandit and others, 2005 (1) MPHT 84; U.N. Krishnamurthy (since deceased) through LRs Vs. A.M. Krishnamurthy, 2022 LiveLaw SC 588; His Holiness Acharya Swami Ganesh Dassji Vs. Sita Ram Thapar, 1996 SCC (4) 526 and Saradamani Kandappan Vs. S. Rajalakshmi & Ors, AIR 2011 SC 3234.
16. On the other hand, learned counsel for the respondents submits that by way of evidence he proved readiness and willingness to execute the agreement to sale.
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17. Heard the learned counsel for both the parties and perused the record of the trial court.
18. Plaintiff PW-1 Manju Devi stated in her evidence that she had arranged payment for remaining consideration on the date of agreement and in this regard plaintiff PW-1 Manju Devi filed her own and her husband's bank statement and plaintiff also filed the letter of her brother Prakash Ex.P-2, letter of her brother Lalit Kumar Ex.P-3 and letter of her father Ex.P-11. Plaintiff gave notice Ex.P-5 on 14.11.1996 and informed the defendant regarding her willingness to perform the agreement. Vide notice dated 20.11.1996 and notice dated 13.12.1996 Ex.P-9 plaintiff stated that she is ready and willing to perform the obligation under the agreement. Plaintiff stated in her evidence that she has arranged the amount for remaining consideration.
19. Considering the evidence of PW-1 in regard to her readiness and willingness she is substantially unrebutted. PW-2 Prakash her cousin brother of plaintiff/Manjudevi also gave evidence that he has capacity to give Rs.10 Lacs as per the demand of plaintiff/Manjudevi. PW-3 Lalit Kumar also gave evidence that he has capacity to give Rs.3 Lacs as the plaintiff/Manjudevi demanded. PW-4 Shantilal and PW-5 Gajendra Singh also gave statement about their paying capacity.
20. On perusal of evidence of plaintiff and her witnesses and also perusal of her cross-examination, plaintiff's witnesses are found credible. Plaintiff's witnesses have given their businesses and profession in details and it is found credible that they are able to give money to the plaintiff when she demanded it.
21. Learned counsel for the appellant submits that plaintiff had no cash amount at the time of the execution of sale-deed but in Sukveer Singh
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Vs. Brijpal Singh 1996 (2) MPWN Short Note 2, the Apex Court has held that law is not in doubt and it is not a condition that respondent should have ready cash with them. So it is not possible for a person to have handsome cash amount at any time. It is not necessary for plaintiff to show that she had cash amount at that time but, it is sufficient to show that at the time of execution of sale deed she had sufficient amount, which is sufficient.
22. On perusal of the record of the trial court, it is found that defendant examined plaintiff and her witnesses elaborately but in the considered opinion of this Court, in regard of sufficient amount they are substantially unrebutted. So in the considered opinion of this Court, plaintiff had sufficient amount for paying the remaining sale consideration.
23. Section 16 of the Specif Relief Act provides that plaintiff has to prove his readiness and willingness to perform the obligation of agreement. Willingness means conduct of the party. Perusal of the record reveals that plaintiff on 05.11.1996 had published public notice (Jaahir Soochna) in "Nai Dunia" daily news-paper that plaintiff is buying the house in dispute and invited objection regarding the transaction. This public notice also shows willingness of the plaintiff. The plaintiff gave notice on 14.11.1996 to the defendants that plaintiff was ready to get the house registered within the stipulated period and in response to that defendant sent reply Ex.P-7 and asked for draft of sale deed and in pursuance of which plaintiff sent reply on 20.11.1996 and stated that defendant had not made any arrangement regarding vacation of disputed house.
24. On perusal of Ex.P-1 it is found that period of performance of execution of agreement to sale was extended upo 15.12.1996. Thereafter,
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plaintiff sent a legal notice to the defendant and defendant gave reply to the notice vide Ex.P-9 and Ex.P-10 and accepted that arrangement of vacating stay and income tax NOC is available and he is ready to vacate the house and plaintiff must execute the agreement. So the correspondence, notice and reply proves the readiness and willingness of the plaintiff.
25. In Pandurang Ganpat Tanawade Vs. Ganapt Bhairu Kadam and others, 1996 AIR SCW 3849, the Apex Court has held that plaintiff sent a notice to the respondent and he is ready and willing to execute the agreement and he has arranged sufficient remaining amount so it is duly proved that plaintiff is ready and willing to perform the agreement.
26. Learned counsel for the plaintiff submits that he had not deposited the amount before trial court but in the case of Basavaraj Vs. Padmavati and another, 2023 (4) SCC 239, the Apex Court has held that adverse inference could only have been drawn against the plaintiff, if the appellant has asked to the Court to order them to produce account and they fail to produce the same. In the present case, no such prayer has been made out to the Court so in such circumstances, no adverse inference can be drawn for non production of the amount.
27. In the present case, at the time of the execution of the agreement, plaintiff paid Rs.4 Lacs out of total amount of Rs.18,51,000/- to the appellant and appellant admitted the execution of the agreement to sale and receipt of 1/4th of the sale consideration. In the case of P. Ramasubbamma Vs. Vijayalakshmi and others, 2022 LiveLaw SC 375, the Apex Court has held that nothing further requires to prove by plaintiff if these above mentioned facts are admitted.
28. Learned counsel for the appellant submits that present suit was
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filed by the plaintiff just before the expiry of 3 years. He placed reliance upon the judgment delivered in the case of U.N. Krishnamurthy (since deceased) through LRs Vs. A.M. Krishnamurthy, 2022 LiveLaw SC 588 and submitted that it is the duty of the plaintiff to explain as to why she filed civil suit just before the expiry of the limitation. But, in the present case, on perusal of the record it is found that plaintiff gave 1/4 th amount of sale consideration at the time of the agreement to sale. In the case of Indira Kaur And Ors. vs Sheo Lal Kapoor, 1998 (2) SCC 488 in para No.6, Apex Court has held that the law is well settled that in transaction of sale of immovable property, time is not essence of the contract. So in view of the evidence led before the trial court by both the parties, in the considered opinion of this Court, plaintiff has proved his readiness and willingness to perform the agreement to sale.
29. Now, it is undisputed that execution of agreement to sale was performed between the parties on 13.10.1996 and suit was filed by plaintiff for specific performance of this agreement to sale in April, 1999. In the case of Satya Jain(D) & Ors Vs.s Anis Ahmed Rushdie(D) Tr.Lrs. & Ors, 2013 (1) SCC D 17, Apex Court has held that we are of further view that sale deed will now not have to be executed by the defendants in favour of plaintiff will be for market price of the suit property as on the date of the present order. In the case of Zarina Siddiqui Vs. A. Ramalingam @ R.Amarnathan, 2014 LawSuit SC 886 in para 38 and 39 has held as under:-
"38. The defendant-respondent alternatively pleaded in the written statement that even at the relevant time the price of the suit property was Rs.3,00,000/- when the said agreement was executed for Rs.40,000/- only. But on the other hand it has come in evidence that against Rs.40,000/-, the plaintiff- appellant has paid a total amount of Rs.65,000/-.
39. Be that as it may, in the facts and circumstances of the
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case and considering the phenomenal increase in price during the period the matter remained pending in different courts, we are of the considered opinion that impugned order under appeal be set aside but with a condition imposed upon the appellant (plaintiff) to pay a sum of Rs.15,00,000/- (Rupees Fifteen Lacs) in addition to the amount already paid by the appellant to the respondent. On deposit in trial court of aforesaid amount by the appellant, for payment to the respondent, within three months from today, the respondent shall execute and register the sale deed in favour of the plaintiff in respect of the suit property. In the event the aforesaid condition of deposit of Rs.15 lacs is fulfilled within the time stipulated hereinabove but the defendant fails to comply with the direction, then the appellant shall be entitled to execute the decree in accordance with the procedure provided in law."
30. In the aforesaid judgment, the Apex Court has held that agreement to sale was executed in 1998 and it determined additional amount of Rs.15 Lacs valuation of suit property for execution of sale deed. So it is clear from the verdict of the Apex Court that when the execution of the sale-deed has been performed the valuation of the suit property must be assessed by market value at that time considering the facts and circumstances of the case and considering the principle of justice and equity.
31. In the present case, according to Ex.P-1 agreement to sale has been executed on 13.10.1996 and plaintiff filed civil suit for specific performance in 1999 and till now execution of the sale deed has not been performed so in the considered opinion of this Court, rate of the suit house must have been increased. Therefore, considering the facts and circumstances of the case as well as considering phenomenal increase of the price during the period and matter is pending from 1999 to till now before the court, in the considered opinion of this Court, an additional amount of Rs.50 Lacs (Fifty Lacs) has to be paid to the appellant in
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addition to the amount already paid by the respondent/plaintiff. On depositing the amount of Rs.50 Lacs (Fifty Lacs) in trial court by respondent/plaintiff for payment to appellant within 3 months from today, the appellant shall execute and register the sale deed in favour of the respondent/plaintiff in respect of the suit property in accordance with the procedure provided in law. If defendant/appellant is unable to execute the sale deed within stipulated time then respondent/plaintiff shall be entitled to execute the decree in accordance with the procedure of law.
32. With the aforesaid directions, the present appeal stands disposed of.
(HIRDESH) JUDGE N.R. Digitally signed by NARENDRA KUMAR RAIPURIA Date: 2024.07.26 18:04:55 +05'30'