[CASE NUMBER] 1/21 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR. [CASE NUMBER] 1. [ENTITY] [ENTITY] aged about 54 years, Occupation : Business, 2. [ENTITY] s/o [ENTITY], aged about 50 years, Occupation : Business Both residents of Yash Handlooms, near Gandhi Putla, New Itwari Road, Nagpur. Appellants. -vs- 1. [ENTITY] s/o [ENTITY], Aged about 51 years, Occupation : Business Resident of Panchpaoli Road, Opposite Daga Hospital, Nagpur 2. [ENTITY] w/o [ENTITY], Aged about 56 years, Occupation : Household, resident of near Janpad, Kailash Nagar, Chhindwara (M.P.) 3. [ENTITY] s/o [ENTITY], Aged about 60 years, Occupation : Business, Resident of Nagoba Galli, Jalalpura Nagpur 4. [ENTITY] s/o [ENTITY], Aged about 49 years, Occupation : Business. 5. [ENTITY] s/o [ENTITY], Aged about 47 years, Occupation : Business, 6. [ENTITY] s/o [ENTITY], Aged about 45 years, Occupation : Business, 7. [ENTITY] s/o [ENTITY], Aged about 42 years, Occupation : Business, Uploaded on - 21/07/2018 Downloaded on - 22/07/2018 01:32:01 [CASE NUMBER] 2/21 Respondent Nos.4 to 7 Residents of Old Subhedar Layout, Plot No.64, Nagpur, Tahsil and District Nagpur Respondents. Shri [ENTITY], Advocate for appellant. Shri [ENTITY], Advocate for respondent No.1. Shri [ENTITY], Advocate for respondent No.2. WITH SECOND APPEAL NO.481 OF 2016 [ENTITY] w/o [ENTITY], Aged about 56 years, Occupation : Household, resident of near Janpad, Kailash Nagar, Chhindwara (M.P.) Appellant -vs- 1. [ENTITY] s/o [ENTITY], Aged about 60 years, Occupation : Business, 2. [ENTITY] aged about 54 years, Occupation : Business, Resident of Nagoba Galli, Jalalpura, Nagpur, 3. [ENTITY] s/o [ENTITY], aged about 52 years, Occupation : Business 4. [ENTITY] s/o [ENTITY], Aged about 49 years, Occupation : Business. 5. [ENTITY] s/o [ENTITY], Aged about 47 years, Occupation : Business, 6. [ENTITY] s/o [ENTITY], Aged about 45 years, Occupation : Business, 7. [ENTITY] s/o [ENTITY], Aged about 42 years, Occupation : Business, Uploaded on - 21/07/2018 Downloaded on - 22/07/2018 01:32:01 [CASE NUMBER] 3/21 Respondent Nos.1, 3 to 7 Residents of Old Subhedar Layout, Plot No.64, Nagpur, Tahsil and District Nagpur 8. [ENTITY] s/o [ENTITY], Aged about 51 years, Occupation : Business Resident of Panchpaoli Road, Opposite Daga Hospital, Nagpur Respondents. Shri [ENTITY], Advocate for appellant. Shri [ENTITY], Advocate for respondent No.2 to 4. Shri [ENTITY], Advocate for respondent No.8. CORAM : [ENTITY], J.
ARGUMENTS WERE HEARD ON : June 26, 2018 JUDGMENT PRONOUNED ON : July 19, 2018 Common Judgment :
Since both these second appeals arise out of a common judgment of the first appellate Court they are being decided together by this common judgment.
The parties are being referred to by their original status. In [CASE NUMBER] the appellants-original defendant Nos.1 and 2 are aggrieved by the decree for specific performance passed by the appellate Court directing the said defendants to register the sale-deed in respect of a shop block admeasuring 200 sq. ft in terms of agreement dated 07/12/2000 in favour of the respondent No.1-plaintiff. It is the case of the plaintiff that he was occupying the premises owned by defendant Nos.1 and 2 for a period of more than twenty years prior to filing of the suit. He was carrying on his business of selling handloom products therein. The defendant Nos.1 and 2 on 07/12/2000 agreed to sell the shop block to the plaintiff for a consideration of Rs.4,50,000/-. As per that agreement an amount of Rs.1,00,000/- was paid as earnest amount and the balance consideration was to be paid within a period of six months by which time the said defendants were to complete construction of the shop block. It was further agreed that in case the defendants failed to perform their part of agreement, the plaintiff would be entitled to claim damages at the rate of Rs.15,000/- per month. Other relevant documents were to be obtained by the defendants. According to the plaintiff he was always ready and willing to perform his part of agreement but the defendants avoided to complete the transaction. On 02/06/2001 a letter was issued by the plaintiff to the defendants to complete the transaction. As there was no response, the plaintiff issued a notice to the defendants on 14/06/2001 calling upon them to execute the sale-deed. The defendants were also informed that a Pay Order for an amount of Rs.3,50,000/- towards balance consideration was kept ready. As the defendants avoided to execute the sale-deed, the plaintiff filed suit for specific performance of the agreement dated 07/12/2000 on 29/06/2001.
2. In the written statement the defendants took the stand that the agreement dated 07/12/2000 was illegal and void ab initio. According to them the suit property was ancestral property of their family. As suit for partition and separate possession being Spl. [CASE NUMBER] with regard to the same property was pending, question of executing the sale-deed in favour of the plaintiff did not arise. The agreement had been frustrated and attempts were made by the defendants to refund the earnest amount of Rs.1,00,000/-. It was further pleaded that the grandfather of the defendants [ENTITY] had executed a Will on 22/01/1981 bequeathing the property in their favour. However, by revoking that [ENTITY] had executed a subsequent Will on 15/03/1981. The defendants were not aware about revocation of the Will in their favour. It was thus pleaded that the suit was liable to be dismissed.
3. The trial Court after considering the evidence on record came to the conclusion that the plaintiff had proved the agreement dated 07/12/2000 and that he was ready and willing to perform his part of agreement. The defendants having failed to perform their part of agreement, the trial Court decreed the suit for specific performance by its judgment dated 27/10/2005. Being aggrieved the defendant Nos.1 and 2 filed [CASE NUMBER]. By the judgment dated 07/06/2016 the appellate Court confirmed the findings of the trial Court and dismissed the appeal. That adjudication is challenged in [CASE NUMBER].
4. [CASE NUMBER] has been filed by the original plaintiff who had filed [CASE NUMBER] for partition and separate possession. It is the case of the plaintiff who is the sister of defendant Nos.1 and 2 in [CASE NUMBER] that the grandfather of the plaintiff and defendant Nos.1 to 7 [ENTITY] had executed his last Will on 05/03/1981 and had bequeathed his entire property to all his legal heirs. Said [ENTITY] expired on 31/03/1981. The plaintiff claimed that she had a share in the suit property to the extent of 1/8th share and hence filed the aforesaid suit on 21/07/2001.
5. The family members of the original plaintiff who were defendant Nos.1 to 7 supported the case of the plaintiff and admitted that the plaintiff had 1/8th share in the suit property. The defendant No.8 who was the plaintiff in the suit for specific performance filed his written statement and took the stand that the suit for partition and separate possession had been filed merely to defeat the claim of the plaintiff in the suit for specific performance. It was pleaded that the Will dated 22/01/1981 was never revoked and that the subsequent Will put forth by the plaintiff in the suit for partition had no legal basis. It was thus prayed that the suit was liable to be dismissed. In the alternate it was pleaded that the agreement dated 07/12/2000 ought to be specifically enforced against the defendant Nos.1 and 2 with regard to their share.
6. The trial Court recorded a finding that the plaintiff had failed to prove that she was having share in the suit property. It was further held that it was not proved that the suit property was joint family property and that the defendant No.8 had proved that the suit for partition was filed only to frustrate the agreement dated 07/12/2000. The trial Court accordingly dismissed the suit on 27/10/2005. The appellate Court by its judgment in [CASE NUMBER] dated 07/06/2016 confirmed the findings of the trial Court and dismissed the appeal. Being aggrieved, that adjudication is challenged in [CASE NUMBER].
7. The following substantial questions of law were framed while admitting the appeal :
(i) Whether on failure to prove the Will dated 5 th March 1981(Exhibit-17) the relief for partition and separate possession can be refused on the basis of Will dated 22/01/1981(Exhibit-152) which was proved on admission ?
(ii) If the answer to question No.1 is in affirmative, whether the plaintiff in [CASE NUMBER] is entitled for specific performance of the agreement as against defendant Nos.1 and 2 ?
Thereafter an additional substantial question of law was framed as under :
(iii) Whether the plaintiff is entitled to the relief of specific performance especially in the light of provisions of [SECTION] of the [ACT] ?
8. Shri [ENTITY], learned counsel for the appellants in [CASE NUMBER] submitted that both the Courts erred in granting the decree for specific performance. According to him enforcement of the agreement dated 07/12/2000 was not possible in view of the fact that the Will dated 22/01/1981 at Exhibit-152 on the basis of which the suit property was bequeathed in favour of defendant Nos.1 and 2 stood revoked by the subsequent Will dated 05/03/1981 at Exhibit-17. The execution of Will at Exhibit-17 was admitted by the family members of late [ENTITY] and therefore its legal effect ought to be taken into consideration. According to him the defendant Nos.1 and 2 therefore were not the exclusive owners of the suit property that was agreed to be sold to the plaintiff on 07/12/2000. The defendant Nos.1 and 2 only had 1/8th share in the suit property and therefore it would not be an exercise of proper discretion to grant specific performance of that agreement in favour of the plaintiff. It was then submitted that there were various subsequent events that had occurred after 07/12/2000 which rendered completion of the agreement impracticable. According to the learned counsel greater hardship was likely to be caused to the defendant Nos.1 and 2 if the decree for specific performance was maintained. He submitted that before the first appellate Court the defendant Nos.1 and 2 had sought to place on record additional evidence in that regard. The pleadings were also sought to be amended and as the same was not permitted the defendant Nos.1 and 2 had approached this Court by filing [CASE NUMBER]. This Court had observed that the pleadings with regard to the subsequent events were already on record and same could be taken into consideration. Despite that the subsequent events had not been taken into consideration. The area of the property in question was drastically reduced due to acquisition of lands by the Authorities and the area remaining was not sufficient to pass a decree for specific performance. The learned counsel further referred to affidavit dated 04/06/2018 filed in the present proceedings to further substantiate his contention that subsequent events pertaining to the widening of road had material bearing on the present proceedings. The learned counsel referred to the provisions of [SECTION] of the [ACT] (for short, the Act of 1963) to substantiate his contentions and he also relied upon following decisions for said purpose :
1] [PRECEDENT]. 2] [ENTITY] (since deceased) through his [PRECEDENT].
3] [PRECEDENT].
4] [PRECEDENT] 5] [PRECEDENT] (dead) through legal
representatives and others reported in [PRECEDENT]. 6] S.R. Srinivasa and others v/s S. Padmavathamma reported in (2010) 5 SCC
7] Bharpur Singh and others v/s Shamsher Singh reported in (2009) 3 SCC 687 8] Janki Narayan Bhoir v/s Narayan Namdeo Kadam reported in (2003) 2 SCC
91. 9] [PRECEDENT] And ors. [PRECEDENT]. 10] [PRECEDENT].
9. Shri [ENTITY], learned counsel for the original plaintiff in the suit for specific performance and the defendant No.8 in the suit filed for partition and separate possession supported the impugned judgment. According to him the execution of Will dated 22/01/1981 at Exhibit-152 was admitted by the legal heirs of [ENTITY] and it was also acted upon by the beneficiaries viz. [ENTITY] and [ENTITY]. The said Will was also signed by [ENTITY], their father. After the death of [ENTITY] an application for mutation of the names of the beneficiaries at Exhibit-110 was moved which was within the knowledge of [ENTITY]. Thereafter necessary intimation was given to the Municipal Corporation and their names were entered in the property card. It was submitted that there were no pleadings whatsoever so as to dispute and challenge the execution of the Will dated 22/01/1981. In absence of any such pleadings the Courts rightly did not frame any issue with regard to the validity of the Will dated 22/01/1981 and there was no question of parties leading any evidence in that regard. With regard to the alleged Will dated 05/03/1981 the same was rightly held to be not proved by both the Courts. The burden to prove the same was on the propounder and the evidence on record was sufficient to indicate that the subsequent Will was a got up document merely to defeat the rights of the original plaintiff. In absence of the Will dated 05/03/1981 being proved, there was no question of granting any relief of partition and separate possession. In that regard the learned counsel placed reliance on the following decisions:
1] [PRECEDENT]. 2] [ENTITY] (Minor) v/s Seshammal. [PRECEDENT]. 3] [PRECEDENT].
4] [ENTITY] and others V/s Muktabai Vinayakrao Chavan and another. 2009 (3) Mh.L.J. 196 5] [PRECEDENT]. 6] [ENTITY] v/s Sahebrao Gajanan Salve and others.
2013 (5) [CASE NUMBER].
7] [ENTITY] and others v/s Thayyullathil Kalliani and others. [PRECEDENT].
8] [ENTITY] and another v/s Kopparthi Ramchandra Rao and others AIR 1994 Andhra Pradesh 284. 9] [ENTITY] and ors vs. Narayanan Nair and ors.
[PRECEDENT].
10. It was then submitted that both the Courts rightly granted a decree for specific performance in favour of the plaintiff. As per the agreement at Exhibit-98 the plaintiff had complied with all the terms which were to be complied by him. He had handed over possession of the suit property as the construction was to be completed within stipulated period. Though the construction was completed in June 2001, one of the signatories to the agreement viz. [ENTITY] had specifically stated that the parties did not intent to deliver possession of the shop block to the plaintiff. He referred to the letter at Exhibit-101 indicating willingness on the part of the plaintiff to pay the balance amount of Rs.3,50,000/- to the said defendants. The Pay Orders at Exhibits-131 and 132 indicated availability of funds with the plaintiff. As nothing further was to be done by the plaintiff it was rightly found that he was always ready and willing to perform his part of the agreement. The necessary ingredients in that regard were duly pleaded and also proved. As regards the submission that the earnest amount deposited had been withdrawn, it was submitted that this withdrawal was without prejudice to the rights of the plaintiff which was clear from the order dated 02/08/2006 passed in [CASE NUMBER] in [CASE NUMBER]. The same could not be a reason to hold that the plaintiff was not ready and willing to performance his part of the agreement. Moreover, the balance consideration was always kept ready by the plaintiff for being paid to the said defendants. In that regard, the learned counsel placed reliance on the decisions in [PRECEDENT], [PRECEDENT] and [PRECEDENT].
11. It was then submitted that the discretion in granting the relief of specific performance under [SECTION] of the said Act was rightly exercised in favour of the plaintiff. The evidence of the witnesses at Exhibits-63 and 80 indicated that the premises owned by the defendant Nos.1 and 2 would not be substantially affected. The pleadings with regard to subsequent developments were not of such nature that would result in causing hardship to the said defendants. The appellate Court had rightly considered all the subsequent events and it was found that the relief of specific performance could not be refused on that count. It was thus submitted that the decree for specific performance deserves to be maintained and no relief of partition and separate possession deserves to be granted as prayed.
12. I have heard the learned counsel for the parties at length and with their assistance I have perused the evidence on record.
As to substantial question of law No.(i) :
In this regard if the pleadings in the suit for specific performance of agreement dated 07/12/2000 being [CASE NUMBER] are perused, it can be seen that it is pleaded by the plaintiff by amending paragraph 3(a) in the plaint that the Will dated 22/01/1981 executed by [ENTITY] in favour of defendant Nos.1 and 2 was the only Will and that the execution of subsequent Will dated 05/03/1981 was denied. In the written statement filed by defendant Nos.1 and 2 it was pleaded that [ENTITY] had revoked his earlier Will dated 22/01/1981. It is further pleaded that defendant Nos.1 and 2 were under bonafide impression that they were the owners of the suit property in view of the first Will dated 22/01/1981 and that they got knowledge about the subsequent Will only after receiving the suit summons in the suit for partition being [CASE NUMBER]. In [CASE NUMBER] it has been pleaded that by cancelling his earlier Will, [ENTITY] executed his last Will on 05/03/1981 and bequeathed the entire property to all his legal heirs. On that basis 1/8th share in the suit property was claimed. The defendant No.8 in his written statement denied these averments. The defendant No.2 [ENTITY] was examined at Exhibit-146. In his cross-examination said witness admitted the contents of said Will dated 22/01/1981 and it was marked as Exhibit-
152. He further admitted that his father was aware about the contents of that Will and on that basis he and his brother became owners of the suit property. In his cross-examination he further admitted various steps taken pursuant to the Will at Exhibit-152 so as to mutate his name in the revenue records and the subsequent act of entering into the agreement with the original plaintiff dated 07/12/2000. The original plaintiff who had filed suit for partition and separate possession and who was the sister of said [ENTITY] and [ENTITY] has merely referred to cancellation of the earlier Will and execution of the subsequent Will on 05/03/1981. In her cross-examination she admitted that as per the earlier Will the names of her brothers were mutated in the revenue records. He further admitted that her suit was filed subsequent to the suit for specific performance being filed.
She had no personal knowledge about the Will dated 05/03/1981 at Exhibit-
13. The attesting witness [ENTITY] was examined with regard to the subsequent Will dated 05/03/1981. In his cross-examination he admitted that he was not aware as to what property was the subject matter of that Will. The said Will was with [ENTITY] and he was not aware to whom it was handed over subsequently. He was also not sure about the signature of [ENTITY] on that Will. This evidence has been found to be not sufficient by the Courts to prove the execution of the Will at Exhibit-17. According to the plaintiff in [CASE NUMBER] she got knowledge about the subsequent Will from the father-in-law of her brother. However, he has not been examined in that regard. Be that as it may, it is clear from the record that execution of the first Will dated 22/01/1981 at Exhibit-152 stands duly admitted by the beneficiaries. It is further evident that said beneficiaries took various steps after the death of [ENTITY] to claim ownership over the suit property. They got their names mutated with the knowledge of other legal heirs and same was not objected to by any other legal heirs. The evidence on record with regard to due execution of the subsequent Will is insufficient to conclude that by executing the subsequent Will on 05/03/1981 the earlier Will dated 22/01/1981 should revoked. In the light of the pleadings of the parties and the evidence of record the conclusion recorded that the plaintiff in the suit for partition and separate possession had failed to prove the Will dated 05/03/1981 at Exhibit-17 is based on the evidence on record.
14. In the light of the ratio of the decisions in [ENTITY], [ENTITY], [ENTITY], [ENTITY], [ENTITY] [ENTITY], [ENTITY], [ENTITY] and [ENTITY] (supra) it is clear that due execution of the Will dated 22/01/1981 at Exhibit-152 stands admitted and that aspect was not required to be specifically proved by the plaintiff in the suit for specific performance. The parties went to trial on the premise that the Will dated 22/01/1981 at Exhibit-152 was the first Will of [ENTITY] and that it was sought to be revoked by the subsequent Will dated 05/03/1981 at Exhibit-17. There was no dispute with regard to the execution of the first Will dated 22/01/1981. The admissions of defendant No.2-[ENTITY] in his deposition as regards due execution of that Will did not require the plaintiff to further prove the same. Having failed to prove valid execution of the subsequent Will at Exhibit-17, the earlier Will at Exhibit-152 has to be given its full legal effect. On that basis since the bequest pursuant to the Will at Exhibit-152 was in favour of defendant Nos.1 and 2 in the suit for specific performance, the relief of partition and separate possession in [CASE NUMBER] has been rightly refused. The conduct of [ENTITY], father of [ENTITY], [ENTITY] as well as plaintiff [ENTITY] of having assisted in the mutation of the names of the beneficiaries in the revenue records as per the Will at Exhibit-152 itself belies the case of plaintiff [ENTITY] that the suit property was ancestral in nature. Said [ENTITY] expired on 19/08/1989 and names of his sons were mutated during his lifetime. This is another factor that cannot be ignored. In view of aforesaid discussion, substantial question of law No.
(i) is answered by holding that in view of Will dated 22/01/1981 in favour of [ENTITY] and [ENTITY], the plaintiff [ENTITY] was not entitled for the relief of partition and separate possession.
15. As to substantial question of law Nos.(ii) and (iii) :
As substantial question of law No.(i) has been answered in the affirmative the entitlement of the plaintiff to the relief of specific performance is required to be considered. The agreement in question is dated 07/12/2000 at Exhibit-98. As per this agreement amount of Rs.1,00,000/- was paid as earnest amount and the balance consideration of Rs.3,50,000/- was to be paid when the sale-deed was to be executed by 06/06/2001. It has come on record that the plaintiff issued letter dated 02/06/2001 at Exhibit-101 and a legal notice dated 14/04/2001 at Exhibit- 106 calling upon the defendant Nos.1 and 2 to complete the contract.
These notices have been admitted to have been received but there was no response to them. The evidence on record further indicates that the plaintiff had applied for a loan of Rs.3,37,000/- which was duly sanctioned. The Pay Orders favouring defendant Nos.1 and 2 with regard to the balance consideration were placed on record at Exhibits-131 and 132. Under the said agreement nothing further was to be done by the plaintiff and therefore it has been rightly found by both the Courts that the plaintiff had proved that he was ready and willing to perform his part of the agreement. The suit for specific performance has also been filed immediately on 29/06/2001. Infact the appellate Court has observed in paragraph 66 of its judgment that it was not even suggested to the plaintiff in his deposition that he was not ready and willing to perform his part of agreement. On the contrary it was stated by defendant No.2 in his deposition that the defendants were not willing to hand over possession of the shop block to the plaintiff. In view of aforesaid evidence on record the finding with regard to the plaintiff's readiness and willingness stands confirmed.
16. Much emphasis was laid on the aspect of possible hardship to the defendant Nos.1 and 2 if the decree for specific performance was to be passed. Reference was made to the activity pertaining to road widening and the probable reduction in the area of the premises owned by defendant nos.1 and 2. For said purpose additional evidence was sought to be brought on record before the first appellate Court and even before this Court affidavit dated 04/06/2018 was sought to be relied upon. The appellate Court permitted the defendant Nos.1 and 2 to bring on record additional evidence pursuant to which two witnesses were examined. From the deposition of these witnesses who were the Executive Engineer and the City Survey Officer it was sought to be brought on record that there would be reduction in the property of the defendants. On perusing the evidence of these two witnesses at Exhibits-63 and 80 it is seen that the Surveyor examined at Exhibit-80 has clearly stated that after carrying out necessary measurement the property of defendant Nos.1 and 2 which was agreed to be sold to the plaintiff was far away from the central marking and that even if road widening took place, a minimum area of the said property would be acquired. The record indicates that the area of the suit plot was 983 sq. ft and the constructed area on the ground floor was about 650 sq. ft. The area that was agreed to be sold to the plaintiff was about 200 sq. ft. It is thus clear that the defendant Nos.1 and 2 had not been able to bring on record any evidence with regard to hardship of such nature on the basis of which discretion could be exercised in their favour for refusing the relief of specific performance. This aspect of the matter has been considered by the first appellate Court and it cannot be said that the discretion as exercised in favour of the plaintiff requires to be interfered with. Similarly, the documents filed alongwith affidavit dated 04/06/2018 do not take the case of the defendant Nos.1 and 2 any further.
17. The learned counsel for the appellants sought to rely upon various decision in support of the submission that discretion does not deserve to be exercised in favour of the plaintiff in the light of provisions of [SECTION] of the said Act. However, on considering the ratio of those decisions in the light of evidence on record, I do not find any reason whatsoever to hold in favour of the appellants that the discretion in that regard has been wrongly exercised in favour of the plaintiff. Substantial question of law Nos.(ii) and (iii) are answered accordingly.
18. Before concluding, it is necessary to note that the appellate Court has found that the original defendant Nos.1 and 2 made various attempts to prolong the adjudication of the appeal before it. Those observations are at paragraphs 96 to 110 of its judgment. On perusal of the entire record it is found that the appellate Court was justified in making those observations. The learned counsel for the plaintiff in the suit for specific performance is justified in relying upon the decisions in [PRECEDENT] and [PRECEDENT]. The plaintiff was required to part with possession on the strength of agreement dated 07/12/2000 and despite his readiness and willingness to complete the agreement, he was deprived of the fruits of that agreement. It is found that both the Courts have rightly held in favour of the plaintiff while decreeing the suit for specific performance. The attempt on the part of the plaintiff in [CASE NUMBER] in seeking to claim the relief of partition and separate possession is without any legal basis. No interference is therefore called for in the impugned judgment.
Both the Second Appeals stand dismissed with costs. The original plaintiff in [CASE NUMBER] is granted time of four weeks to deposit the balance consideration before the executing Court.
JUDGE [ENTITY]