Allahabad High Court
Sarita Gupta @ Savita Gupta And 4 Others vs Shanti Devi And 23 Others on 6 May, 2022
Author: Rohit Ranjan Agarwal
Bench: Rohit Ranjan Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Reserved Court No. - 10 Case :- SECOND APPEAL No. - 283 of 2022 Appellant :- Sarita Gupta @ Savita Gupta And 4 Others Respondent :- Shanti Devi And 23 Others Counsel for Appellant :- Kshitij Shailendra Counsel for Respondent :- Tarun Agrawal Hon'ble Rohit Ranjan Agarwal,J.
1. Heard Sri Kshitij Shailendra, learned counsel for the appellants and Sri Ravi Kant, learned Senior Counsel, assisted by Sri Tarun Agrawal, learned counsel for the respondents.
2. This is defendant-III set/appellants' second appeal under Section 100 C.P.C. challenging the judgment and decree dated 19.01.2022 passed by the District Judge, Aligarh in Civil Appeal No. 132 of 2016 arising out of Original Suit No. 849 of 1987, and judgment and decree dated 28.10.2016 passed by the Additional Civil Judge (Senior Division), Court No. 2, Aligarh in Original Suit No. 849 of 1987.
3. This appeal has a chequered history. A brief description is necessary for better appreciation of the case, which is as follows;
4. Plaintiff respondent nos. 1 and 2 entered into a registered agreement of sale with one Jaswant Singh, the original defendant Ist set/respondent on 26.08.1985 for the sale of bhumidhari land for Rs. 98,195 for which an advance of Rs. 5000/- was given at the time of agreement of sale and balance amount of Rs. 93,195/- was to be paid by the plaintiff respondent at the time of execution of sale-deed. According to the agreement to sale the sale-deed was to be executed within four months on taking balance sale consideration and defendant (deceased Jaswant Singh) was to take necessary permission of sale, if any.
5. According to the plaintiff respondent several requests were made with the defendant to obtain income tax exemption certificate but the sale-deed was not executed. Thus, a letter was sent by the plaintiff respondent to the defendant (deceased Jaswant Singh) on 05.12.1985 calling upon him to appear in the office of Sub-Registrar, Koil, Aligarh with income tax exemption certificate on 24.12.1985. When the defendant did not reach the office of Sub-Registrar, on his request the sale-deed was to be executed on 26.12.1985. On that day again, the defendant did not reach the office of Sub-Registrar and gave excuse that once the certificate is received regarding exemption from the Income Tax Department, he will execute the sale-deed. When the sale-deed was not executed by the defendant, the plaintiff respondent filed Original Suit No. 849 of 1987 on 26.10.1987 claiming relief of specific performance of contract in favour of the plaintiff respondent against the defendant and defendant be directed to execute the sale-deed after taking balance sale consideration of Rs. 93,195/-. An alternate plea was also taken that in case the relief cannot be legally granted then decree of return of Rs. 5000/- pendente lite in future be passed in favour of plaintiff respondent and against the defendant. The defendant (deceased Jaswant Singh) on 28.10.1987 executed a sale-deed in favour of one Ravi Prakash Agrawal. The said transferee through sale-deed dated 08.03.1988 transferred the said property in favour of present appellants' predecessor as well as the appellant.
6. Original Suit No. 849 of 1987 filed by the plaintiff respondent no. 1 was decreed ex parte on 05.12.1989. The trial court had directed the heirs of late Jaswant Singh to execute registered sale-deed in favour of plaintiff after depositing the balance amount of Rs. 93,195/- The heirs of defendant Ist set (deceased Jaswant Singh) filed an application under Order 9 Rule 13 C.P.C. for setting aside the ex parte decree dated 05.12.1989. In the meantime, the ex parte decree was put into execution which was registered as Execution Case No. 36 of 1990 and an amount of Rs. 93,195/- was deposited by the decree holder before the execution court. The application under Order 9 Rule 13 C.P.C. was allowed on 07.03.1998. The trial court again decreed the suit under Order 8 Rule 10 C.P.C. on 28.11.2000 directing for refund of Rs. 5000/- alongwith 12% interest per annum. The judgment and decree of trial court was put to challenge by the plaintiff respondent nos. 1 and 2 by filing Civil Appeal No. 12 of 2001 requesting that the suit be decreed for relief of specific performance of the contract. The said appeal was allowed on 30.10.2003 and the matter was again remitted to the trial court for decision afresh on merits after hearing the parties concerned.
7. Meanwhile, the heirs of defendant Ist set/respondent no. 3 (deceased Jaswant Singh) filed Suit No. 314 of 1992 before the Civil Judge (Junior Division), Hawali, Aligarh for cancellation of sale-deed executed by their father late Jaswant Singh against the respondent no. 4 Ravi Prakash Agrawal on 08.03.1988. In the said suit the present appellants were also arrayed as defendant and they had filed their written statement. The said suit was dismissed on 31.07.2015.
8. While in the Suit No. 849 of 1987 an amendment application was moved by the plaintiff respondent Paper No. 155-Ka for impleading the subsequent purchaser including the appellants, which was allowed on 03.08.2016. The trial court found that subsequent purchaser having not appeared despite notices and publication made proceeded ex parte as there was direction of this Court to conclude the suit proceedings and on 28.10.2016 partly decreed the suit of the plaintiff respondent to the extent that they were entitled to a decree for refund of Rs. 5000/- deposited at the time of execution of agreement to sale alongwith interest and as the litigation has been going on for 30 years they were entitled for compensation of Rs. 2,00,000/-. Being dissatisfied by the judgment of trial court, the plaintiff respondent nos. 1 and 2 filed Civil Appeal No. 132 of 2016 before the District Judge, Aligarh who allowed the appeal and directed for the execution of the sale-deed in view of the fact that the balance sale consideration money of Rs. 93,195/- is already deposited in the court. Hence, this present appeal by the subsequent purchaser and his legal heirs.
9. Sri Kshitij Shailendra, learned counsel appearing for the appellants, assailed the order of lower appellate court on the ground that the mandatory provisions of Order 41 Rule 31 C.P.C. has not been complied with and not even a single point of determination has been framed. He has relief upon a decision of coordinate Bench of this Court in case of Ram Pravesh and others Vs. Ram Bilash and others, 2015 (5) ADJ 690, a decision of this Court in case of Ram Chander Vs. Imtiyaz Ali and another, Second Appeal No. 226 of 2018, decided on 30.03.2022.
10. He next contended that initially the suit for specific performance was filed against the defendant vendor Jaswant Singh and the present appellants who are subsequent purchaser were for the first time impleaded in suit by order of trial court on 03.08.2016 and no opportunity has been granted to file written statement. He then submitted that Section 19 (b) of the Specific Relief Act, 1963 (hereinafter referred as the ''Act of 1963') protects the case of subsequent purchaser and the said provision can only be invoked when an issue/point of determination with regard to bonafide/malafide purchase by the appellant having knowledge/no knowledge of the agreement to sale was framed, admittedly, this issue was never framed nor decided.
11. Reliance has been placed upon a decision of Apex Court in case of Guruswamy Nadar Vs. P. Lakshmi Ammal (Dead) Through LRS. and Others, 2008 (5) SCC 796. He then contended that once the decree passed by the trial court on 05.12.1989 was set aside, the Execution Case No. 36 of 1990 has lost its significance and amount deposited in the said execution proceedings would be of no consequence and the lower appellate court directing for enforcement of the contract of the year 1985 and co-relation to the amount deposited in execution case is totally illegal. He next submitted that the plaintiff having called upon the defendant to execute sale-deed on 24.12.1985 there was no notice on record and mere receipt dated 24.12.19985 and 26.12.1985 filed by the plaintiff alongwith list 98-C would not be sufficient to satisfy the requirement of Section 16 (c) of the Act of 1963.
12. Reliance has been placed upon a decision of Apex Court in case of Veluyudhan Sathyadas Vs. Govindan Dakshyani, JT 2002 (5) SC 357, G. Jayashree and others Vs. Bhagwandas S. Patel and others, 2009 (3) SCC 141, relevant paragraph nos. 32 to 35 are extracted here as under;
"32. The civil courts, in the matter of enforcement of an agreement to sell, exercise a discretionary jurisdiction. Discretionary jurisdiction albeit must be exercised judiciously and not arbitrarily or capriciously. A plaintiff is expected to approach the court with clean hands. His conduct plays an important role in the matter of exercise of discretionary jurisdiction by a court of law. In Mohammadia Cooperative Building Society Limited v. Lakshmi Srinivasa Cooperative Building Society Limited & ors. [(2008) 7 SCC 310], this Court held:
"71. Grant of a decree for specific performance of contract is a discretionary relief. There cannot be any doubt whatsoever that the discretion has to be exercised judiciously and not arbitrarily. But for the said purpose, the conduct of the plaintiff plays an important role. The courts ordinarily would not grant any relief in favour of the person who approaches the court with a pair of dirty hands."
33. In Sanjana M. Wig (Ms.) v. Hindustan Petroleum Corpn. Ltd. [2005) 8 SCC 242] in regard to exercise of the discretionary jurisdiction, this Court held that the same depends upon the facts and circumstances of each case wherefor no hard and fast rule can be laid down.
34. We may notice that B.P. Jeevan Reddy, J. in K.S. Vidyanadam & ors. v. Vairavan(1997) 3 SCC 1] held that a new look is required to be given and the rigour of the rule is required to be relaxed by courts as regards the principle that time is not of the essence of the contract in case of immovable properties as when the said principle was evolved the prices and values were stable and inflation was unknown, stating:
"11.......The learned Counsel for the plaintiff says that when the parties entered into the contract, they knew that prices are rising; hence, he says, rise in prices cannot be a ground for denying specific performance. May be, the parties knew of the said circumstance but they have also specified six months as the period within which the transaction should be completed. The said time-limit may not amount to making time the essence of the contract but it must yet have some meaning. Not for nothing could such time-limit would have been prescribed. Can it be stated as a rule of law or rule of prudence that where time is not made the essence of the contract, all stipulations of time provided in the contract have no significance or meaning or that they are as good as nonexistent? All this only means that while exercising its discretion, the court should also bear in mind that when the parties prescribes certain time-limit(s) for taking steps by one or the other party, it must have some significance and that the said time-limit (s) cannot be ignored altogether on the ground that time has not been made the essence of the contract [relating to immovable properties]."
This court therein noticed the decision rendered in Mademsetty Satyanarayana v. G. Yellogi Rao[(1965) 2 SCR 221] where Subba Rao, J. (As His Lordship then was) made a distinction between Indian law and the English law on the subject to hold that some delay may not be a bar in granting a relief of specific performance as the limitation for filing such suit is prescribed under the Limitation Act, 1963, stating:
"13. In the case before us, it is not mere delay. It is a case of total inaction on the part of the plaintiff for 2 1/2 years in clear violation of the terms of agreement which required him to pay the balance, purchase the stamp papers and then ask for execution of sale deed within six months. Further, the delay is coupled with substantial rise in prices- according to the defendants, three times - between the date of agreement and the date of suit notice. The delay has brought about a situation where it would be inequitable to give the relief of specific performance to the plaintiff."
35. Mr. Nariman, however, would contend that somewhat different view has been taken by this Court in Nirmala Anand v. Advent Corporation (P) Ltd. & ors. [(2002) 8 SCC 146], wherein this Court in a situation of this nature had directed payment of a higher price. Each case is, thus, required to be considered on its own facts. No hard and fast rule, therefore, can be laid down. While determining the lis in a suit for specific performance of contract, no legal principle in absolute terms can be laid down. Relief in a matter of this nature has to be granted keeping in view a large number of facts."
13. Reliance has also been placed upon decision of Apex Court in case of J.P. Builders and another Vs. A. Ramadas Rao and another, 2011 (1) SCC 429, relevant paragraph nos. 22, 24, 25, 26 and 27 are extracted here as under;
"22. The words "ready" and "willing" imply that the person was prepared to carry out the terms of the contact. The distinction between "readiness" and "willingness" is that the former refers to financial capacity and the latter to the conduct of the plaintiff wanting performance. Generally, readiness is backed by willingness.
24. In P.D'Souza vs. Shondrilo Naidu, (2004) 6 SCC 649 paras 19 and 21, this Court observed:
"19. It is indisputable that in a suit for specific performance of contract the plaintiff must establish his readiness and willingness to perform his part of contract. The question as to whether the onus was discharged by the plaintiff or not will depend upon the facts and circumstance of each case. No strait-jacket formula can be laid down in this behalf....
21.........The readiness and willingness on the part of the plaintiff to perform his part of contract would also depend upon the question as to whether the defendant did everything which was required of him to be done in terms of the agreement for sale."
25. Section 16 (c) of the Specific Relief Act, 1963 mandates "readiness and willingness" on the part of the plaintiff and it is a condition precedent for obtaining relief of grant of specific performance. It is also clear that in a suit for specific performance, the plaintiff must allege and prove a continuous "readiness and willingness" to perform the contract on his part from the date of the contract. The onus is on the plaintiff.
26. It has been rightly considered by this Court in R.C. Chandiok & Anr. vs. Chuni Lal Sabharwal & Ors., (1970) 3 SCC 140 that "readiness and willingness" cannot be treated as a straight jacket formula. This has to be determined from the entirety of the facts and circumstances relevant to the intention and conduct of the party concerned.
27. It is settled law that even in the absence of specific plea by the opposite party, it is the mandate of the statute that plaintiff has to comply with Section 16(c)of the Specific Relief Act and when there is non- compliance with this statutory mandate, the Court is not bound to grant specific performance and is left with no other alternative but to dismiss the suit. It is also clear that readiness to perform must be established throughout the relevant points of time. "Readiness and willingness" to perform the part of the contract has to be determined/ascertained from the conduct of the parties."
14. Lastly, he contended that the impleadment application impleading the subsequent purchaser was allowed on 03.08.2016 and notices having been issued on 22.08.2016 and the trial court on the next date i.e. 26.09.2016 observing that the suit has to be expeditiously decided in view of the directions of the High Court fixed for 27.09.2016 and thereafter publication was permitted on 24.10.2016 and the suit was decreed on 28.10.2016 leaving no time for the appellants to contest the same.
15. Sri Ravi Kant, learned Senior Counsel, appearing for the plaintiff respondent nos. 1 and 2, submitted that the agreement to sale which was entered on 26.08.1985 between the plaintiff and defendant (deceased Jaswant Singh) is a registered document. The sale-deed was to be executed within four months during which Jaswant Singh was required to take necessary permission from the Income Tax Department. According to him, the notice was given by the plaintiff to the defendant on 05.12.1985 for executing the sale-deed on 24.12.1985. The plaintiff having been present in the office of Sub-Registrar on that day and then again on 26.12.1985 had brought on record the receipt dated 24.12.1985 and 26.12.1985 through Paper No. 98-Ga which clearly proves that the plaintiff was always ready and willing to perform the essential terms of the contract which are to be performed by him and, thus, the provisions of Section 16 (c) of the Act of 1963 should be read in favour of plaintiff having complied the said provision.
16. He further submitted that a subsequent purchaser from vendor defendant, though necessary party to a suit, cannot raise such a plea and it is only the vendor defendant who can raise such plea. Reliance has been placed upon the decision of Apex Court in case of Jugraj Singh and another Vs. Labh Singh and others Vs. 1995 (2) SCC 31. Relevant paragraph nos. 3 to 5 are extracted here as under;
"3. Section 16 (c) of the Specific Relief Act, 1963 provides that the plaintiff must plead and prove that he has always been ready and willing to perform his part of the essential terms of the contract. The continuous readiness and willingness at all stages from the date of the agreement till the date of the hearing of the suit need to be proved. The substance of the matter and surrounding circumstances and the conduct of the plaintiff must be taken into consideration in adjudging readiness and willingness to perform the plaintiff's part of the contract.
4.The Privy Council in Ardeshir H. Mama v. Flora Sassonhas held that in a suit for specific performance the averment of readiness and willingness on plaintiff's part up to the date of the decree is necessary.
5.This Court in Gomathinayagam Pillai v. Palaniswami Nadarquoting with approval Ardeshir case had held as follows:
"But the respondent has claimed a decree for specific performance and it is for him to establish that he was, since the date of the contract, continuously ready and willing to perform his part of the contract. If he fails to do so, his claim for specific performance must fail."
That plea is specifically available to the vendor/defendant. It is personal to him. The subsequent purchasers have got only the right to defend their purchase on the premise that they have no prior knowledge of the agreement of sale with the plaintiff. They are bona fide purchasers for valuable consideration. Though they are necessary parties to the suit, since any decree obtained by the plaintiff would be binding on the subsequent purchasers, the plea that the plaintiff must always be ready and willing to perform his part of the contract must be available only to the vendor or his legal representatives, but not to the subsequent purchasers. The High Court, therefore, was right in rejecting the petitioners' contention and rightly did not accept the plea. We do not find any ground warranting interference."
17. He then submitted that the lower appellate court had categorically recorded the finding as to the readiness and willingness of the plaintiff for execution of sale-deed by the defendant in his favour. He then contended that the lower appellate court had substantially complied the provisions of Order 41 Rule 31 C.P.C. as it is clear from the judgment of lower appellate court that there is substantial compliance of requirement of Order 41 Rule 31 C.P.C.
18. According to him, the lower appellate court had considered the entire evidence and discussed in detail, and the conclusion and findings are supported by reasons even though no point of determination has been framed. Reliance has been placed upon the decision of Apex Court in case of G. Amalorpavam and others Vs. R.C. Diocese of Madurai and others, 2006 (3) SCC 224. Relevant paragraph no. 9 is extracted here as under;
"9. The question whether in a particular case there has been a substantial compliance with the provisions of Order 41 Rule 31 CPC has to be determined on the nature of the judgment delivered in each case. Non-compliance with the provisions may not vitiate the judgment and make it wholly void, and may be ignored if there has been substantial compliance with it and the second appellate Court is in a position to ascertain the findings of the lower appellate Court. It is no doubt desirable that the appellate court should comply with all the requirements of Order 41 Rule 31 CPC. But if it is possible to make out from the judgment that there is substantial compliance with the said requirements and that justice has not thereby suffered, that would be sufficient. Where the appellate court has considered the entire evidence on record and discussed the same in detail, come to any conclusion and its findings are supported by reasons even though the point has not been framed by the appellate Court there is substantial compliance with the provisions of Order 41 Rule 31 CPC and the judgment is not in any manner vitiated by the absence of a point of determination. Where there is an honest endeavour on the part of the lower appellate court to consider the controversy between the parties and there is proper appraisement of the respective cases and weighing and balancing of the evidence, facts and the other considerations appearing on both sides is clearly manifest by the perusal of the judgment of the lower appellate court, it would be a valid judgment even though it does not contain the points for determination. The object of the Rule in making it incumbent upon the appellate court to frame points for determination and to cite reasons for the decision is to focus attention of the Court on the rival contentions which arise for determination and also to provide litigant parties opportunity in understanding the ground upon which the decision is founded with a view to enable them to know the basis of the decision and if so considered appropriate and so advised to avail the remedy of Second Appeal conferred by Section 100 CPC."
19. He next submitted that the defendant (deceased Jaswant Singh) executed the sale-deed in favour of Ravi Prakash Agrawal on 28.10.1987 while the suit for specific performance was filed by the plaintiff respondent nos. 1 and 2 on 26.10.1987 i.e. prior to the execution of sale-deed in favour of Ravi Prakash Agrawal and others. According to him, the doctrine of lis pendens will apply and the party purchasing the property after suit has been filed by the original purchaser will not get the title and benefit. Thus, exemption of Section 19 (b) of the Act of 1963 will not be available to appellants in view of doctrine of lis pendens.
20. Reliance has been placed upon the judgment of Apex Court in case of Guruswamy Nadar (Supra). Relevant paragraph nos. 9, 10 and 17 are extracted here as under;
"9. Section 19 of the Specific Relief Act clearly says subsequent sale can be enforced for good and sufficient reason but in the present case, there is no difficulty because the suit was filed on 3.5.1975 for specific performance of the agreement and the second sale took place on 5.5.1975. Therefore, it is the admitted position that the second sale was definitely after the filing of the suit in question. Had that not been the position then we would have evaluated the effect of Section Section 52 the Transfer of Property Act. But in the present case it is more than apparent that the suit was filed before the second sale of the property. Therefore, the principle of lis pendens will govern the present case and the second sale cannot have the overriding effect on the first sale.
10. The principle of lis pendens is still settled principle of law. In this connection, the Full Bench of the Allahabad High Court in Smt. Ram Peary (supra) has considered the scope of Section 52 the Transfer of Property Act. The Full Bench has referred to a decision in Bellamy v. Sabine[(1857) 44 ER 842 at p.847)wherein it was observed as under:
"4....... It is scarcely correct to speak of lis pendens as affecting a purchaser through the doctrine of notice, though undoubtedly the language of the Courts often so describes its operation. It affects him not because it amounts to notice, but because the law does not allow litigant parties to give to others, pending the litigation, rights to the property in dispute, so as to prejudice the opposite party.
Where a litigation is pending between a plaintiff and a defendant as to the right to a particular estate, the necessities of mankind required that the decision of the Court in the suit shall be finding, not only on the litigant parties, but also on those who derive title under them by alienations made pending the suit, whether such alienees had or had not notice of the pending proceedings. If this wsere not so, there could be no certainty that the litigation would ever come to an end."
17. Similarly, in Jugraj Singh & Anr. V. Labh Singh & Ors. [ (1995) 2 SCC 31], it was also emphasized that the plea that the plaintiff was to prove that he was ready and willing to perform his part of the contract. It is personal to him. The subsequent purchasers have got only the right to defend their purchase on the premise that they have no prior knowledge of the agreement of sale with the plaintiff. They are bona fide purchasers for valuable consideration, though they were not necessary parties to the suit. But in the present case, the second purchaser was a defendant in the suit and this plea was also considered by learned Single Judge and it found that there was sufficient allegation made in the plaint that the plaintiff was ready and willing to perform his part of the contract. This aspect was dealt with by learned Single Judge in its order dated 24.7.1990 and learned Single Judge in paragraph 8 held as follows:
" On the first of these submissions, I find that as against the definite plea in paragraph 7 of the Plant that Plaintiff has been and is still ready and is still ready and willingly specifically to perform the agreement on her part of which the 1st Defendant has had notice. The only plea in the written statement of the 1st Respondent is " the allegations in Para 7 of the Plaint that this Defendant is aware of the contract is denied as false". Thus, it is found that there is no denial at all t the plea that the Plaintiff was ready and willing to perform her part of the contract. Likewise, the 2nd Respondent also has not denied the said plea, in his written statement. Further, to the specific averment in para 5 of the Plaint "by the latter part of July, 1974, the Plaintiff informed the Defendants of her readiness to complete the sale", there is no specific denial at all. There is only a vague and evasive denial by the 1st Respondent as follows:
" The allegation contained in para 5 of the Plaint are frivolous and denied.' Likewise, the 2nd Respondent also has not specifically denied the above said averment in the Plaint."
Therefore, from this finding it is more than apparent that the plaintiff while filed the suit for specific performance of the contract was ready and willing to perform her part of the contract. This argument was though not specifically argued before the Division Bench, the only question which was argued was whether the principle of lis pendens will be applicable or Section 19 of the Specific Relief Act will have overriding effect to which we have already answered. In the present case the principle of lis pndens will be applicable as the second sale has taken place after the filing of the suit. Therefore, the view taken by the Division Bench of the High Court is correct and we do not find any merit in this appeal and the same is accordingly dismissed with no order as to costs."
21. Reliance has also been placed upon a decision of coordinate Bench of this Court in case of Awadh Raj and others Vs. Gulab Singh and others, 2005 (2) AWC 1827 (All). Relevant paragraph nos. 17 and 18 are extracted here as under;
"17. The fourth substantial question of law relates to the question as to whether the defendant-appellants are bona fide purchasers for value without notice. I may again refer to the exception of the general rule given in Section 19 of the Specific Relief Act. This exception has been created in Section 19 of the Specific Relief Act in favour of the bona fide transferee without notice. The burden of proving this exception is on the party pleading it. Here, in the instant case, the defendant-appellants are pleading that they are the bona fide transferees for value without notice. In order to challenge the finding of the lower appellate court; the defendant-appellants have raised this contention. The learned first appellate court has recorded a finding that the agreement in question executed in favour of the plaintiff is a registered document and the defendant-appellants have not made any enquiry before getting the sale deed executed from the office of the Sub-Registrar about the title over the disputed land. The first appellate court has referred the admission of the defendant No. 2 Lalta Prasad Singh in which he has stated that he had not made any enquiry before the execution of the sale deed. It has been argued that the registration of the agreement cannot be said to be sufficient notice to the purchaser. This contention has no force of law. For this purchase, I may refer the interpretation of a phrase "a person is said to have notice" given under Section 3 of the Transfer of Property Act, 1882 which is as follows :
" 'a person is said to have notice' of a fact when he actually knows that fact, or when, but for wilful abstention from an inquiry or search which he ought to have made, or gross negligence, he would have known it.
Explanation 1.--Where any transaction relating to immovable property is required by law to be and has been effected by a registered instrument, any person acquiring such property or any part of, or share or interest in, such property shall be deemed to have notice of such instrument as from the date of registration or where the property is not all situated in one sub-district, or where the registered instrument has been registered under Sub-section (2) of Section 30 of the Indian Registration Act, 1908 from the earliest date on which any memorandum of such registered instrument has been filed by any Sub-Registrar within whose sub-district any part of the property which is being acquired, or of the property wherein a share or interest is being acquired, is situated ;
Provided that--
(1) The instrument has been registered and its registration completed in the manner prescribed by the Indian Registration Act, 1908 and the rules made thereunder.
(2) The instrument or memorandum has been duly entered or filed, as the case may be, in books kept under Section 51 of that Act, and ;
(3) The particulars regarding the transaction to which the instrument relates have been correctly entered in the indexes kept under Section 55 of that Act.
Explanation II.--Any person acquiring any immovable property or any share or interest in any such property shall be deemed to have notice of the title, if any, of any person who is for the time being in actual possession thereof.
Explanation III.--A person shall be deemed to have had notice of any fact if his agent acquires notice thereof whilst acting on his behalf in the course of business to which that fact is material :
Provided that, if the agent fraudulently conceals the fact, the principal shall not be charged with notice thereof as against any person who was a party to or otherwise cognizant of the fraud."
18. The Transfer of Property Act, 1882 contemplates three kinds of notice ; (i) actual notice, (ii) constructive or implied notice and (iii) notice to an Agent. Notice includes both actual and constructive notice. The legal presumption of knowledge of notice arises from (a) a wilful abstention from inquiry and search ; (b) gross negligence ; (c) omission to search registration in the register kept under the Registration Act; (d) Actual possession and (e) Notice to Agent. (See Ram Saran and Anr. v. Kuriamal and Ors., 1988 ALJ 1288). The person who is bound to make an inquiry and fails to do it should be held to have notice of all facts which would have come to his knowledge had he made the inquiry. Where a document has been registered a person would, as a matter of law be deemed to have notice in the circumstances and to the extent mentioned in the Explanation / to Section 3 of the Transfer of Property Act, 1882 cited above. It has been held by the Supreme Court that if, there is a charge on immovable property by registered instrument, the subsequent transferee will have notice of charge (See M.L. Abdul Jabbar Sahib v. H. Venkata Sastri and Sons and Ors., AIR 1969 SC 1147). Therefore, in view of the aforesaid legal proposition of law, I hold that the registration of an agreement to sell can be termed as sufficient notice to the purchaser in the circumstance when the subsequent purchaser himself admits that he had not made any enquiry before getting the sale deed executed from the vendor. The question as to whether the finding whether the defendant-appellants are bona fide purchaser for value without notice or not? is a finding of fact or law? Here, in this case when the defendant-appellants have not made any enquiry, there is a legal presumption of knowledge of notice arising from wilful abstention from enquiry and search. There can be a case of constructive notice and in that case, it will be a question of fact."
22. Sri Ravi Kant, learned Senior Counsel, lastly submitted that the impleadment application was allowed on 03.08.2016 and, thereafter, the order-sheet reveals that when the matter was fixed for 26.09.2016 there being a direction of this Court for early disposal of the matters which are prior to the year 2000, the Court fixed 27.10.2016. On that day the trial court found that the registered notice sent to the some of the defendant had returned back, order was passed for publication. On 14.10.2016 the court found that publication having been made and no one had appeared the court fixed 19.10.2016 for proceeding ex parte. Thereafter, 26.10.2016 was fixed for argument and on 28.10.2016 the judgment was passed by the trial court.
23. According to him, the defendant appellants deliberately did not appear before the trial court. He invited the attention of the Court to the Original Suit No. 314 of 1992 filed by the legal heirs of late Jaswant Singh for cancellation of the sale-deed executed in the year 1987 and 1988 in favour of Ravi Prakash Agrawal and others, and thereafter in favour of appellants' predecessor as well as the appellants, wherein the appellants have filed their written statement and the issue was framed regarding the cancellation of the sale-deed in view of the agreement to sale which had been executed by the father of the plaintiff of that suit in favour of plaintiff respondent nos. 1 and 2. The defendants have contested the suit and the said suit was dismissed on 31.07.2015. Thus, it can safely be said that the present appellants were fully aware of the fact that suit of plaintiff respondent nos. 1 and 2 was pending for specific performance.
24. I have heard rival submissions and perused the material on record.
25. Before proceeding to decide the present appeal, a cursory glance of Section 16 and Section 19 of the Act of 1963 are necessary for better appreciation of the case.
"16. Personal bars to relief.--Specific performance of a contract cannot be enforced in favour of a person--
2 [(a) who has obtained substituted performance of contract under section 20; or]
(b) who has become incapable of performing, or violates any essential term of, the contract that on his part remains to be performed, or acts in fraud of the contract, or wilfully acts at variance with, or in subversion of, the relation intended to be established by the contract; or
(c) 3 [who fails to prove] that he has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than terms of the performance of which has been prevented or waived by the defendant.
Explanation.--For the purposes of clause (c),--
(i) where a contract involves the payment of money, it is not essential for the plaintiff to actually tender to the defendant or to deposit in court any money except when so directed by the court;
(ii) the plaintiff 4 [must prove] performance of, or readiness and willingness to perform, the contract according to its true construction.
19. Relief against parties and persons claiming under them by subsequent title.--Except as otherwise provided by this Chapter, specific performance of a contract may be enforced against--
(a) either party thereto;
(b) any other person claiming under him by a title arising subsequently to the contract, except a transferee for value who has paid his money in good faith and without notice of the original contract;
(c) any person claiming under a title which, though prior to the contract and known to the plaintiff, might have been displaced by the defendant;
[(ca) when a limited liability partnership has entered into a contract and subsequently becomes amalgamated with another limited liability partnership, the new limited liability partnership which arises out of the amalgamation.]
(d) when a company has entered into a contract and subsequently becomes amalgamated with another company, the new company which arises out of the amalgamation;
(e) when the promoters of a company have, before its incorporation, entered into a contract for the purpose of the company and such contract is warranted by the terms of the incorporation, the company: Provided that the company has accepted the contract and communicated such acceptance to the other party to the contract."
26. Section 16 (c) of the Act of 1963 provides that specific performance of a contract cannot be enforced in favour of a person who fails to prove that he has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him. Thus, a suit at the instance of a person seeking enforcement of a contract has to prove that he was ready and willing to execute his part of contract. Likewise, Section 19 provides that subsequent sale can be enforced for good and sufficient reasons where the transferee has paid his money in good faith and without notice of the original contract.
27. In the case in hand, it is an admitted position from both the sides that a registered agreement to sale was entered between plaintiff respondent nos. 1 and 2 and late Jaswant Singh, the defendant, on 26.08.1985. It is also not in dispute that Original Suit No. 849 of 1987 was filed by the plaintiff respondent against late Jaswant Singh for specific performance of the contract entered on 26.08.1985. Moreover, Jaswant Singh after filing of Original Suit No. 849 of 1987 executed a registered sale-deed on 28.10.1987 in favour of Ravi Prakash Agrawal and others. Subsequently, on 08.03.1988 the suit property was transferred by Ravi Prakash Agrawal and others in favour of present appellants' predecessor and appellant as well.
28. A finding has been returned by the lower appellate court to the extent that on 05.12.1985 plaintiff respondent gave notice to the defendant (deceased Jaswant Singh) for executing the sale-deed on 24.12.1985, on that day the plaintiff appeared before the office of Sub-Registrar but defendant did not turn up to execute the sale-deed. Again, it was agreed between the parties to appear on 26.12.1985, but that day also the defendant failed to appear and sought time for obtaining exemption certificate from the Income Tax Department. The finding recorded by the lower appellate court that the plaintiff respondent no. 1 was ready and willing to perform his part of contract and through document Paper No. 98-C, receipt of presence of plaintiff respondent before the office of Sub-Registrar on 24.12.1985 and 26.12.1985, has been brought on record to establish the readiness and willingness of the plaintiff respondent.
29. The decisions relied upon by the appellants' counsel is not applicable in the present case as plaintiff respondent was always ready and willing to perform his part of the contract. Apex Court in case of J.P. Builders (Supra) in fact supported the case of the plaintiff respondent who by his conduct and document brought on record has established his readiness and willingness to carry out the terms of the contract. There is no dispute to the fact that a decree of specific performance can only be granted when once the plaintiff establishes his case that he was ready and willing to perform his part of contract. The law in regard to Section 16 (c) of the Act of 1963 is no more res integra.
30. Moreover, the Apex Court in case of Jugraj Singh and another (Supra) in categorical terms held that the subsequent purchasers have got only the right to defend their purchase on the premise that they have no prior knowledge of the agreement of sale with the plaintiff and they are bonafide purchasers for valuable consideration. The plea regarding readiness and willingness can only be raised by the vendor defendant and not by the subsequent purchaser or his legal representatives.
31. Now coming to the argument raised by the appellants that lower appellate court having decreed the suit for specific performance and directing defendants to execute sale-deed in favour of plaintiff respondent and not granting benefit of Section 19 (b) of the Act of 1963 cannot be done unless the issue/point of determination was framed by the court below and the same was decided.
32. The arguments, so raised, have no merits as the sale-deed executed on 28.10.1987 by the defendant (deceased Jaswant Singh) in favour of Ravi Prakash Agrawal and others was hit by doctrine of lis pendens as the suit was filed by the plaintiff respondent on 26.10.1987. The law regarding lis pendens has already been settled by Full Bench of this Court in case of Smt. Ram Peary and others Vs. Gauri and others, AIR 1978 All 318. The Supreme Court relying upon this judgment held that the sale as well as the subsequent sale of the property during pendency of the suit cannot have overriding effect and doctrine of lis pendens will apply.
33. Apex Court in case of Guruswamy Nadar (Supra) relying upon the judgment of Smt. Ram Peary (Supra) and Jugraj Singh (Supra) held that second sale cannot have overriding effect over the first sale due to principle of lis pendens and the subsequent purchaser has only got the right to defend their purchase on the premise that they have no prior knowledge of the sale to the plaintiff.
34. In case of Awadh Raj (Supra) the Court while deciding the issue "whether registration of an agreement to sell can be termed as sufficient notice to the purchaser" held that the exception created in Section 19 of the Act of 1963 in favour of the bonafide transferee without notice, the burden of proving this exception is on the party pleading it.
35. In the present case, it is upon the appellants to show that they are the bonafide transferee for value without notice. In this regard Section 3 of the Transfer of Property Act, 1882 (hereinafter referred as the ''Act of 1882') is of great significance where the interpretation of phrase "a person said to have notice" has been given, which is extracted here as under;
"["a person is said to have notice"] of a fact when he actually knows that fact, or when, but for wilful abstention from an enquiry or search which he ought to have made, or gross negligence, he would have known it.
Explanation 1.--Where any transaction relating to immovable property is required by law to be and has been effected by a registered instrument, any person acquiring such property or any part of, or share or interest in, such property shall be deemed to have notice of such instrument as from the date of registration or, [where the property is not all situated in one sub-district, or where the registered instrument has been registered under sub-section (2) of section 30 of the Indian Registration Act, 1908 (16 of 1908), from the earliest date on which any memorandum of such registered instrument has been filed by any Sub-Registrar within whose sub-district any part of the property which is being acquired, or of the property wherein a share or interest is being acquired, is situated]:
Provided that--
(1) the instrument has been registered and its registration completed in the manner prescribed by the Indian. Registration Act, 1908 (16 of 1908) and the rules made thereunder, (2) the instrument 3 [or memorandum] has been duly entered or filed, as the case may be, in books kept under section 51 of that Act, and (3) the particulars regarding the transaction to which the instrument relates have been correctly entered in the indexes kept under section 55 of that Act.
Explanation II.--Any person acquiring any immoveable property or any share or interest in any such property shall be deemed to have notice of the title, if any, of any person who is for the time being in actual possession thereof.
Explanation III.--A person shall be deemed to have had notice of any fact if his agent acquires notice thereof whilst acting on his behalf in the course of business to which that fact is material:
Provided that, if the agent fraudulently conceals the fact, the principal shall not be charged with notice thereof as against any person who was a party to or otherwise cognizant of the fraud.]"
36. Thus, the Act of 1882 contemplates three kind of notice, (i) actual notice, (ii) constructive or implied notice and (iii) notice to an agent. The legal presumption of knowledge of notice arises from (a) a wilful abstention from inquiry and search; (b) gross negligence; (c) omission to search registration in the register kept under the Registration Act; (d) Actual possession and (e) Notice to Agent. The Supreme Court in case of M. L. Abdul Jabbar Sahid Vs. H. Venkata Sastri and Sons and others, AIR 1969 SC 1147, held that if there is a charge on immovable property by registered instrument, the subsequent transferee will have notice of charge.
37. In the present case the agreement to sale was registered on 26.08.1985, thus, the appellants will be deemed to have notice of the fact that an agreement to sale was entered between the plaintiff respondent and defendant (deceased Jaswant Singh). Moreover, the present appellants as well as their vendor Ravi Prakash Agrawal and others were party to the suit filed by the legal heirs of Jaswant Singh for cancellation of sale-deed in the year 1992, wherein while deciding the issue no. 1 the fact regarding pendency of suit filed by the plaintiff respondent had come into light and the said suit was dismissed in the year 2015 itself.
38. The argument raised by the appellants' counsel that no notice was given nor they were party to the suit and the trial court in a hurried manner partly decreed the suit, has no legs to stand in view of the provisions of the Act of 1882, wherein the registration of agreement to sale and omission on the part of the appellants to such registration in the register kept under the Registration Act would amount to notice, and also the fact that they were the defendants in the suit filed by the legal heirs of the defendant (deceased Jaswant Singh) since 1992, thus, taking a plea in the year 2016 that they were not aware of the fact cannot be accepted.
39. Lastly, it has been argued that the lower appellate court without framing the point of determination, as mandated under Order 41 Rule 31 C.P.C. has decided the appeal.
40. From the reading of the judgment of lower appellate court, it is clear that the court has considered the entire evidence on record and discussed the same in detail and has come to conclusion and recorded its finding though the point of determination has not been framed by the lower appellate court, but still there is substantial compliance of the provisions of Order 41 Rule 31 C.P.C.
41. The provisions of Order 41 Rule 31 C.P.C. mandates that a judgment of the appellate court shall be in writing and shall state (a) the points for determination, (b) the decision thereon, (c) the reasons for the decision, and (d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled.
42. In the present case an honest endeavour has been made on the part of lower appellate court to consider the controversy between the parties. There is proper appraisement of the respective case of both the sides and after considering and balancing all the evidence, facts and other consideration, the lower appellate court had proceeded to pronounce the judgment.
43. In case of G. Amalorpavam (Supra), the Apex Court while dealing with the said issue had held that the very object of Order 41 Rule 31 C.P.C. is in making it incumbent upon the appellate court to frame points for determination and to cite reasons for the decision is to focus attention of the Court on the rival contentions which arise for determination and also to provide litigant parties opportunity in understanding the ground upon which the decision is founded with a view to enable them to know the basis of the decision and if so considered appropriate and so advised to avail the remedy of second appeal conferred by Section 100 C.P.C.
44. In the present case, substantial compliance of the Order 41 Rule 31 C.P.C. has been made out by the lower appellate court and the judgment has been passed after re-appreciating the judgment as well as considering and weighing the respective cases of the parties.
45. Considering the facts and circumstances of the case, I find that no substantial question of law arises in the present appeal and the lower appellate court has rightly decreed the suit of plaintiff respondent no. 1 for specific performance for which he is entitled pursuant to the registered agreement to sale executed on 26.08.1985 between the plaintiff and the defendant (deceased Jaswant Singh) under whom the present appellants are litigating. No interference is required by this Court with the judgment and decree passed by the lower appellate court on 19.01.2022 in Civil Appeal No. 132 of 2016.
46. The Apex Court in Civil Appeal No.8971 of 2010 (Kripa Ram (deceased) through Legal Representatives and others vs. Surendra Deo Gaur and others, decided on 16.11.2020 has held that the second appeal can be dismissed without even formulating the substantial question of law. Relevant paras 25 and 26 reads as under :
"25. In a judgment reported as Ashok Rangnath Magar v. Shrikant Govindrao Sangvikar (2015) 16 SCC 763, this Court held that the second appeal can be dismissed without even formulating the substantial question of law. The Court held as under:
"18. In the light of the provision contained in Section 100 Code of Civil Procedure and the ratio decided by this Court, we come to the following conclusion:
(i) On the day when the second appeal is listed for hearing on admission if the High Court is satisfied that no substantial question of law is involved, it shall dismiss the second appeal without even formulating the substantial question of law;
(ii) In cases where the High Court after hearing the appeal is satisfied that the substantial question of law is involved, it shall formulate that question and then the appeal shall be heard on those substantial question of law, after giving notice and opportunity of hearing to the Respondent;
(iii) In no circumstances the High Court can reverse the judgment of the trial court and the first appellate court without formulating the substantial question of law and complying with the mandatory requirements of Section 100 Code of Civil Procedure."
26. In view of the above findings, we do not find any error in the judgment and order of the High Court dismissing the Second Appeal. The present appeal is thus dismissed. Pending applications, if any, shall stand disposed of."
47. Both the Courts below had rightly dismissed the suit of the plaintiffs-appellants, which needs no interference by this Court. No substantial question of law is made out.
48. Second Appeal fails and is, hereby, dismissed.
Order Date :- 6.5.2022 Shekhar [Rohit Ranjan Agarwal,J.]