Punjab-Haryana High Court
Anokh Devi And Ors. vs Trilok Singh And Ors. on 21 September, 1995
Equivalent citations: (1996)112PLR372
JUDGMENT N.K. Kapoor, J.
1. This defendant's regular second appeal against the judgment and decree of the District Judge affirming in appeal the judgment and decree passed by the trial Court.
2. Plaintiff filed a suit for possession by way of specific performance of agreement dated 20.11.1977 against Babu Singh. As per averment made in the plaint, Babu Singh agreed to sell the land measuring 65 Kanals 18 marlas as detailed in agreement dated 20.11.1977 for a consideration of Rs. 51,000/- and he received a sum of Rs. 14,000/- as part purchase price on the same day. As per terms mutually agreed between the parties, the sale deed was to be executed by 15.6.1978. It was further agreed that in case of default by the plaintiffs, the earnest money shall stand forfeited and in case defendant No. 1 resiles from executing the sale deed, the plaintiffs, shall be entitled to compensation of Rs. 20,000/-. It is the case of the plaintiffs that they were ever ready and willing to perform their part of the contract and for which they had issued notice to Babu Singh defendant. Defendant Babu Singh, however, refused to perform his contract. Not only this, he transferred this land to the names of defendants No. 2 to 5 suffering a collusive and fraudulent decree in {their favour on 11.4.1978. Accordingly, the plaintiffs impleaded these persons also as defendants.
3. Defendant No. 1 put in appearance and filed written statement controverting the various material averments made in the plaint Defendant No. 1 alleged that he never agreed to sell the suit land nor he received any earnest money from the plaintiffs and in case the plaintiffs have any agreement in their possession, the same has been obtained by fraud. It was further stated that there has been a family settlement between him, his sons and wife in the year 1976 and under the family settlement the suit land has fallen to the share of other defendants.
4. Defendants Nos.2 to 4 filed a separate written statement taking a plea that the land in dispute is a joint Hindu Family Property and so defendant No. 1 had no right to alienate the same without legal necessity. They further pleaded that defendant No. 1 is an opium eater and drunkard.
5. Defendant No. 5 filed written statement that defendant No. 2 to 5 are owners in possession of the suit land. Other averments made in the plaint were denied for want of knowledge.
6. On the pleadings of the parties, following issues were framed:-
1. Whether defendant No. 1 was owner of the land as described in para No. 2 of the plaint O.P.P.
2. Whether defendant No. 1 entered into an agreement dated 20.11.1977 to sell the suit land for Rs. 51,000- and received Rs. 14,000/- as earnest money? O.P.P.
3. Whether the plaintiffs are ready and willing to perform their part of contract and continued to be so? O.P.P.
4. If issue No. 2 is proved, what were the terms and conditions of agreement? O.P.P.
5. Whether the decree suffered by defendant No. 1 in favour of other defendants is collusive fraudulent and ineffective against the rights of the plaintiffs? O.P.P.
6. Whether the suit is not properly valued? O.P.P.
7. Whether the plaintiffs have no locus standi to file the suit? O.P.D.
9. Relief.
7. The trial Court also framed the following additional issues :-
7-A. Whether the defendants constitute Joint Hindu Family and the suit land is a Joint Hindu Family property, if so, to what effect? O.P.D. 7-B. Whether the 1st defendant is an opium addict, drunkard and spend thrift person, if so, to what effect? O.P.D. 7-C Whether the suit land is ancestral of defendant No.1 qua defendants No. 2 to 5 and whether defendant No.1 cannot alienate the same as alleged in para 3 of the written statement? O.P.D.
8. Issue No. 1 was decided in favour of the plaintiffs holding that defendant Babu Singh was owner of the suit land. Issues Nos. 2, 3 and 4 were taken up together and were decided in favour of the plaintiffs holding that the plaintiffs paid a sum of Rs. 14,000/- at the time of execution of agreement dated 20.11.1977 and that, they were ready and willing to perform their part of the contract and continued to be so. Issues No. 6 and 7 were decided against the defendants. Under Issue No. 5, it was held that the decree suffered by defendant No. 1 in favour of other defendants is collusive, fraudulent and thus ineffective against the rights of the plaintiffs. In respect of additional issue 2-A, the trial Court decided the same against the defendants holding that no documentary evidence has been adduced by the defendants to prove the ancestral nature of the property. Similarly, under issue No. 7-A it was held that there was no proof in the form of documentary evidence on the basis of which it could be proved that Babu Singh and his sons formed a Joint Hindu Family and so decided this issue against the defendants holding that there is no proof on record that Babu Singh defendant is an opium addict, drunkard and a spend thrift person. Resultantly, the suit of the plaintiffs was decreed and a direction was issued to Defendant No. 1. and other defendants to execute the sale deed of the suit land in favour of the plaintiffs and get it registered by 7.12.1981 subject to plaintiffs paying the balance consideration of Rs. 37,000/-.
9. Feeling dissatisfied with the judgment and decree of the trial Court, Babu Singh and other except Jai Kishan defendant who was arrayed as proforma respondent filed an appeal. Before the lower appellate Curt the main grievance was made in respect of issue No. 5 relating to decree suffered by defendant No. 1 in favour of other defendants which was held by the trial Court to be collusive, fraudulent and ineffective. The lower appellate Court once again examined the matter thread-bare and came to the conclusion that the findings recorded by the trial Court were perfectly just and legal in the circumstances of the case. The Lower appellate Court noticed that as per copy of plaint Exhibit P-4, the claim was based upon a family settlement alleged to have taken place in the month of August, 1976 but Babu Singh while executing the agreement did not make mention of any such settlement and so found it to be a device to get rid of the binding effect of the agreement dated 20.11.1977. The Court also noticed that the suit was filed on 11.4.1978 and decreed too on the same date. Thus the court did not issue any process for service of the defendants who perhaps accompanied the plaintiff and suffered a consent decree. The finding on issues No. 2, 3 and 4 were not seriously challenged by the appellants and issues No. 6, 7, 7-A, 7-B and 7-C were not pressed by the appellants during the course of arguments.
10. Before the appellate court argument was raised that the trial Court erred in law in ordering execution of the sale deed in the present case. According to the appellants suffering of collusive/consent decree in their favour was, in fact, recognition of their rights of specific performance of agreement to transfer the land in favour of the plaintiffs was neither proper nor justified. At best the plaintiffs would be compensated. The Court found no substance in this contention of the appellants as well. So the appeal was dismissed vide judgment and decree dated 6.9.1984.
11. Before me, learned counsel for the appellants has once again highlighted the terms of agreement; their superior right of pre-emption as well as property being ancestral/Joint Hindu Family Property. According to the counsel, both the courts have misread the agreement Exhibit P-1. Elaborating the counsel argued that the agreement stipulate that in the event of default, the other party in entitled to be compensated to the extent of double the amount which he paid in advance as earnest money. This being so, both the Courts, erred in ordering for specific performance of the agreement of the suit land. According to the counsel, the courts below were unnecessarily obsessed with the decretal of the suit on the same date. In fact, Babu Singh suffered a decree in view of the earlier settlement between the parties in the year 1976. Thus, this decree in a manner was recognition of the preexisting rights of the present appellants. Even otherwise, this decree could not be ignored only for the reason that the same was granted without any contest and on the day when the suit was filed. Otherwise too, if the matter is examined from an angle that the present appellants had right in the Joint Hindu Family property/ancestral property or otherwise had a right to pre-empt the sale, the decree so suffered could not be termed to be collusive or fraudulent and in any case the plaintiffs at best could claim damages to the tune of Rs. 28,000/- only.
12. It may be noticed that here the appeal has been filed by Anokhi Devi and others and not by Babu Singh. Babu Singh has been arrayed as a respondent. Agreement dated 28.11.1977 is between Babu Singh and the plaintiffs. Grievance, if any, of the agreement could be made by Babu Singh alone. Thus, the present appellants have no right to assail the findings of the courts being in respect of agreement dated 20.11.1977. Otherwise too, the courts below on the basis of evidence adduced by the parties had come to a firm conclusion that the agreement was duly executed by Babu Singh and in pursuance to which a sum of Rs. 14000/- was paid by the plaintiffs at the time of execution of agreement and the remaining amount was to be paid at the time of registration of sale deed. The present appellant have been impleaded as party on the basis of decree suffered by Babu Singh in their favour. At best these persons can be termed to be proper persons which does not in any manner clothe them with any right to assail the agreement executed by Babu Singh and duly proved by the plaintiffs by examining the witnesses to the agreement. Counsel for the appellants was unable to cite any judgment for the proposition that the appellants too can challenge the agreement executed by Babu Singh. There is no proof on record that the suit land was a Joint Hindu Family Property or that the present appellants constitute a Joint Hindu Family with Babu Singh. The trial Court has specifically noted that the defendants have failed to adduce any evidence in support of their contention. No meaningful argument has been advanced by the counsel for the appellant in this regard here too.
13. Similarly, the plea of the appellants that the transfer in their favour can be defended as they had a superior right to pre-empt the sale. This argument is far fetched and as per facts on record does not arise at all. In the instant case, such an occasion had not even arisen. Rather before, a sale deed could be executed, Babu Singh in a clandestine manner and solely to frustrate the agreement for sale of the property suffered a decree in favour of the appellants. Both the courts on reconsidering the documentary as well as oral evidence have held the decree to be collusive and fraudulent and that the same does not affect the rights of the plaintiffs in any manner. No fault can be found with this conclusion of the Courts as well.
14. As a last resort, counsel for the appellants once again argued that since the plaintiffs on their own had prayed for an alternative relief of double the payment of earnest amount, the courts below erred in ordering the execution of the sale deed. Reliance has been placed upon the decision of the Calcutta High Court in case reported as Monfut Raja Choudhury v. Dewan Rowean Kumar Khatun Choudhary and Ors., A.I.R. 1943 Calcutta 586. Admittedly, Babu Singh entered into an agreement for sale of the property, in pursuance to which he received a sum of Rs. 10,000/- as earnest money. A date for execution of the sale deed was duly stipulated. It has come on record that the plaintiffs expressed their readiness and willingness to execute the sale deed and took all necessary steps in this regard. This agreement is for the sale of immovable property. According to Section 10 of the Specific Relief Act, the Court is to presume that the breach of contract to transfer immovable property cannot be adequately relieved by compensation in money unless and until the contrary is proved i.e. in all the cases of agreement for sale of immovable property, transfer of immovable property is to be ordered unless for some compelling circumstances. Both the courts after carefully examining the matter have thought it appropriate to order for execution of the sale deed in favour of the plaintiffs. The claim of the plaintiffs in the alternative was for recovery of the amount. This can hardly be taken as a circumstance debarring the plaintiffs from specifically enforcing the agreement arrived at between the parties. The decision of the Calcutta High Court in Monfar Raja Choudhuary's case (supra) has in fact no applicability. On facts, it was noticed that respondent No. 1 agreed to give lease of the undivided property which was inherited by him from his deceased daughter, the other undivided share being in the possession of defendant No.2. In view of these circumstances, the parties agreed that the compensation in money could be an adequate relief for the breach of contract and the contract be not specifically enforced. No such terms form part of the agreement. So this decision does not help the appellants in any manner.
15. The apex Court in case reported as M.L. Devender Singh and Ors. v. Syed Khan, A.I.R. 1973 S.C. 2457, considered this precise plea as to the effect of stipulation in the agreement for payment of sum in case of breach. The court after considering the provisions contained in Sections 20, 23 and Section 10 Explanation of the Specific Relief Act held that the parties themselves had provided a sum to be paid by the party breaking the contract. Thus, by itself, remove the strong presumption contemplated by the use of the words "unless and until the contrary is provided". The Court thus held that in cases equity helps honest plaintiffs against defendants the break solemnly given undertakings. The High Court had rightly decreed the suit for specified performance of the contract." This decision of the Supreme Court squarely covers the point in issue.
16. Thus finding no merit in the appeal, the same is dismissed. Parties, however will bear their own costs.