IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA RSA No. 55 of 2000 Date of Decision : March 16, 2011 Sh. Ishar Dass Appellant Versus Smt. Bhagati Devi and others Respondents Coram: The Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting?1 No. For the appellant : Mr. Neeraj Gupta, Advocate, for the appellant. For the respondents : Mr. Vinod Gupta and Mr. Rakesh Jaswal, Advocates, for respondent No. 5. Sanjay Karol, J. (Oral) This is plaintiff’s regular second appeal filed under Section 100 of the Code of Civil Procedure, 1908. 2. Plaintiff’s Civil Suit No. 11 of 1994, for specific performance of agreement to sell and symbolic possession of the suit land stands partly decreed by Senior Sub Judge, L&S at Kullu, H.P. (Exercising the Powers of SJIC, Kullu, H.P.) in terms of judgment and decree dated 6.8.1998. Aggrieved of the same plaintiff Sh. Ishar Dass filed an appeal before the District Judge, Kullu, H.P. Defendant No. 2 Sh. Anup Ram and defendant No. 3 Sh. Gurdial are real brothers of Smt. Bhagati Devi Whether reports of Local Papers may be allowed to see the judgment? 2 (defendant No. 1). The appeal stands dismissed by the District Judge, Kullu in terms of judgment and decree dated 30.9.1999. 3. Plaintiff alone has filed the instant appeal which stands admitted on the following substantial questions of law:- 1. Whether the agreement of sale was admittedly executed by a person holding General Power of Attorney on behalf of the Defendant No. 1, could Defendant No. 1 in a suit for specific performance of such agreement, be permitted to defend on such grounds which were not permissible to be raised either by Defendant No. 1 or for holder of Power of Attorney? 2. When the execution of the agreement Exhibit PW-2/A was duly admitted by the Defendant No. 2 and passing of consideration was also admitted, was it permissible for both the courts below to deny the relief of specific performance of contract to the plaintiff by ignoring the principle of law enshrined in Specific Relief Act, Indian Evidence Act, Power of Attorney Act, Transfer of Property Act and Code of Civil Procedure? 3. Whether the findings of both the courts are contrary to the oral and documentary evidence available on the record as well against the provisions of Transfer of Property Act to hold Defendant No. 5 to be a bonafide purchaser for consideration? 4. It is not in dispute that Smt. Bhagati Devi (defendant No. 1) is the owner of the suit land. It is not in dispute that she is a widow and she has only one female child. It is also not in dispute that Sh. Gurdial and Sh. Anup Ram are her real brothers. 5. It is the plaintiff’s claim that vide agreement dated 15.1.1991 Smt. Bhagati Devi agreed to sell the suit land through her brothers Sh. Gurdial and Sh. Anup Ram in whose favour she had given power of attorney for a 3 total sale consideration of ` 25,000/- which amount was paid by the plaintiff in cash to Smt. Bhagati Devi through Sh. Gurdial and Sh. Anup Ram. 6. Smt. Bhagati Devi resisted the suit on various grounds. She being an old illiterate and rustic villager, having no male issue had authorized her real brothers only to watch her interest in the property. For the limited purpose of maintenance and getting the mutation of inheritance of the property attested in her name she executed general power of attorney in favour of her brothers. Without her consent, authorization, knowledge and information her real brothers, in connivance with the plaintiff, fraudulently executed the agreement in question. No payment was ever received by her. From the times of her late husband she has been residing in the house constructed over the suit land alongwith her daughter and except for the suit property she has no other property. 7. Defendants No. 2 conceded to the plaintiff’s claim in entirety. Defendant No. 3 was proceeded ex-parte. Defendants No. 1, 4 and 5 filed separate written statements. 8. Based on the pleadings of the parties Trial Court framed the following issues:- “(1) Whether there was a valid agreement for sale of suit property executed on 15.1.1991 between the defendant No. 1 and plaintiff, as alleged? OPP (2) Whether the sale consideration of Rs. 25,000/- was received by the defendant No. 1 through the defendants No. 2 and 3, as alleged? OPP (3) Whether the suit is time barred, as alleged OPD (4) Whether the suit is based upon false, frivolous and fictitious grounds and the defendants are entitled to 4 the compensatory cost and if so to what extent? OPD-1 & 4 (5) Whether the sale made by defendant No. 1 to defendant No. 4 and subsequently by defendant No. 4 to defendant No. 5 was void, illegal and fraudulent as alleged? OPP (6) Whether the defendant No. 1 never executed power of attorney in favour of defendants No. 2 and 3 and the alleged power of attorney in their favour was the outcome of fraud and undue influence and mis- representation as alleged? OPD-1 (7) Whether the defendant No. 5 is bonafide purchaser for consideration in respect of the suit property as alleged? OPD-5 (8) Whether the defendant No. 5 is entitled to improvement cost and if so to what extent? OPD-5 (9) Whether the plaintiff is entitled for possession by way of specific performance as prayed for? OPP (10) Relief.” 9. Issues No. 1, 2, 6 and 9 were decided against the plaintiff. The Trial Court held that no agreement was ever executed between the plaintiff and defendant Smt. Bhagati Devi. No sale consideration was received by Smt. Bhagati Devi. She was neither a consenting nor a willing party to the agreement dated 15.1.1991. The suit was held to be within limitation. Defendants No. 4 and 5 were held to be the bonafide purchasers of the property in question through Smt. Bhagati Devi. However on the basis of admission made by defendants No. 2, Trial Court partly decreed the plaintiff’s suit for refund of earnest money of ` 25,000/- with cost to be recovered from defendants No. 2. 5 10. The lower Appellate Court upheld the findings returned by the Trial Court. The Court held that the plaintiff has failed to place on record the power of attorney. 11. I have heard Sh. Neeraj Gupta, learned Counsel appearing for the plaintiff and Sh. Vinod Gupta and Sh. Rakesh Jaswal, learned counsel for respondent No. 5. 12. Sh. Neeraj Gupta, learned counsel has invited my attention to the pleadings and the documents to contend that a false defence was taken by Smt. Bhagati Devi and consequently findings returned by the Courts below are complete misreading and misappreciation of evidence. He has also invited my attention to the provision of Section 188 of the Indian Contract Act, 1872 and to the decisions rendered by the various Courts in Yohannan and another versus Harikrishnan Nair and others, AIR 1992 Kerala 49 and K. Venkoji Rao versus M. Abdul Khuddur Kureshi, AIR 1991 Karnataka 119. In the alternative it is argued that in any event interest awarded by the Trial Court on the decretal amount is much on the lower side. 13. Per contra, Mr. Vinod Gupta, learned counsel for defendant No. 5 has argued that agreement in question is void and not legally enforceable for want of any consideration or authorisation. In the alternative it is argued that keeping in view the ratio of law laid down by the Apex Court in Parakunnan Veetill Joseph’s Son Mathew versus Nedumbara Kuruvila’s Son and others, AIR 1987 SC 2328; A.C. Arulappan versus Smt. Ahalya Naik, AIR 2001, SC 2783; Her Highness Maharani Shantidevi P. Gaikwad versus Savjibhai Haribhai Patel and others, (2001) 5 SCC 101 and Bal Krishna and another versus Bhagwan Das (Dead) by LRs and others, 6 (2008) 12 SCC 145 no decree for specific performance can be granted in favour of the plaintiff. 14 Certain facts which cannot be disputed have emerged from the record. The suit property is situated on the main Kullu – Manali National Highway and is just short of five kilometers from the main Manali Township. Judicial notice can be taken of the fact that Manali is a famous international tourist destination where many commercial establishments have come up and land there is quite valuable. From the statements of defendant No. 1 (DW-2) and defendant No. 5 (DW-4) it is evident that Smt. Bhagati Devi is a widow. She has no other property. On the suit land there is a house which is in her possession where she is permanently residing with her daughter. It also cannot be disputed that initially her brothers were living separately and on her asking started residing with her. It has also come on record that Smt. Bhagati Devi is an illiterate and a rustic villager. In fact both plaintiff and the brothers admit her to be a woman of little understanding. Record does not even remotely suggest the necessity to sell the suit property. Undisputedly agreement in question is not signed by Smt. Bhagati Devi. 15. Agreement (Ext. PW 2/A) records that sum of ` 25,000/- was paid to defendant No. 1 through defendants No. 2 and 3. 16. In no uncertain terms, plaintiff admits that Smt. Bhagati Devi alongwith her daughter permanently resides in the house constructed over the suit land. In Court Smt. Bhagati Devi has categorically deposed that even though she is in possession of suit property over which her husband had planted apple orchard but however plaintiff forcibly harvests the apple crop. 7 17. On the question of payment of ` 25,000/- I am in total agreement with the concurrent findings of fact recorded by the Courts below. No amount whatsoever was paid by the plaintiff to Smt. Bhagati Devi under the agreement. Importantly plaintiff has failed to place on record the alleged power of attorney authorizing him to sell the property in question. Admittedly no receipt of payment has been placed on record by the parties. It does not stand proved on record that earnest money of ` 25,000/- was ever paid by the plaintiff to defendant No. 1 or received by her from her brothers. Plaintiff’s claim of payment of the earnest money is based on falsehood. Plaintiff paid the same to defendant No. 2 who has conceded to the plaintiff’s claim. But then he was not authorized to sell the land. Defendant states that she never authorized her brothers to sell the suit property. Plaintiff has failed to show the source of payment of ` 25,000/-. Agreement is full of falsehood. No receipt was obtained for having made payment in cash. It is not that defendant No. 1 was not available. Agreement could have been got signed from her itself. Plaintiff is also a local person and aware of the circumstances in which defendant No. 1 was living. Thus it cannot be said that there was legally binding and enforceable agreement between the parties. 18. Further Section 10 of the Specific Relief Act, 1963 starts with a non obstante clause and although right of specific relief is conferred by a statute but however while granting relief to the plaintiff principles of equity are to be applied. Provisions of Section 10, when read conjointly with Section 20, evidently makes it clear that discretion, to be exercised by the Court, is to be based on the principles of equity, fair play, conduct, hardship and delay. Judgments cited by Mr. Vinod Gupta, learned counsel are also to this effect. Scales of equity, in the instant case, in my 8 considered view are heavily loaded in favour of defendant No. 1. Being a rustic lady and no male member to look after her property, she requested her brothers to help her in managing the same. She resides in the house constructed on the suit property. She has no other place to go and has a daughter. Both are dependent upon each other. There was no necessity to sell the property. Consequently it cannot be said that the Courts below erred in not granting the relief prayed for by the plaintiff in the suit. 19. Ratio of law laid down by the Apex Court in Parakunnan Veetill Joseph’s Son Mathew (supra), A.C. Arulappan (supra), Her Highness Maharani Shantidevi P. Gaikwad (supra) and Bal Krishna (supra) evidently disentitles the plaintiff to the relief claimed for. Decisions relied upon by the plaintiff are inapplicable to the instant facts. It cannot be said that the lower Appellate Court misdirected itself by allowing defendant No. 1 to urge question which were otherwise not permissible. Substantial questions of law are answered accordingly. 20. Noticeably defendants No. 2 and 3 have not filed any appeal. Based on their admission, findings of fact and decree passed by the Courts below, qua them, have attained finality. Interest has not been awarded by the Courts below. The alleged agreement is of the year 1990 when banking rates of interest were much higher. Consequently plaintiff is held entitled to interest @ 12% per annum. Accordingly decree be modified to the extent that plaintiff shall be entitled to interest @ 12% per annum. Appeal is partly allowed. (Sanjay Karol), Judge. March16, 2011 (PK)