LETTERS PATENT APPEAL No.1045 OF 1997. - - - - - - Against the judgment and order dated 24th September 1996 passed by Hon’ble Single Judge in Appeal from Original Order No. 555 of 1973. Smt.Tijiya Devi Daughter of Sukhdeo Sao, wife of Sidhnath @ Bhuwan Chand, Resident of Mohalla Dhamitola, P.S.Kotwali District Gaya, -----------------Appellant. Versus 1. Sudha Rani Gupta widow of Late Durga Charan. 2. Babita Devi daughter of Durga Charan. 3. Bina Kumari daughter of Durga Charan. 4. Lalit Kumar Gupta son of Durga Charan. Minor son/daughters of Late Durga Charan under he guardianship of their mother Sudha Rani Gupta. 5. Uma Charan. 6. Narendra Kumar. 7. Raj Kumar. 8. Raendra Kumar. All sons of Late Bishun Ram. 9. Raj Kumari. 10.Indra Kumari All daughters of Late Bishun Ram. All residents of Mohalla Dhamitola, P.S. Kotwali District Gaya. 11(a) Shambhu Prasad son of Late Goardhan Lal. (b) Anju Kumari. (c) Vinita Kumari. (d) Nisha Kumari, All daughters of Late Gobardhan Lal. ------------------Respondents. For the Appellant : Mr. S.S.Dwivedi, Senior Advocate. For the Respondents: Mr.Anjani Prasad, Advocate. P R E S E N T THE HON'BLE MR. JUSTICE SHIVA KIRTI SINGH. THE HON'BLE MR. JUSTICE C.M.PRASAD. C.M. Prasad,J The appellant was plaintiff and the defendant Nos.2 and 3 were the major sons of defendant no.1 and the defendant nos. 5 to 8 were the minor sons and daughters of defendant no.1. The plaintiff filed suit for specific performance of allegedly oral 2 contract between her and defendant nos. 1 to 8 for sale of the suit house. The plaintiff also prayed for a decree of possessions of the suit house and restraining the defendants from alienating or encumbering the suit property and the decree was also prayed for a sum of Rs.572/- spent by the plaintiff for preparation of the sale- deed in pursuance of the contract for the purchase of the suit house. 2. The plaintiff’s case was that the defendant no.1 had purchased the suit house, vide registered sale-deed dated 16th March 1952. Her name was mutated in the municipal records and she was paying the taxes thereof. That on 5th November 1961, the defendant no.1 executed a registered usufructuary mortgage deed in favour of one Gobardhan Lal to pay off her creditors from whom she had taken loan for performing Shradh of her husband Bishuni Ram and for other legal necessities. That Gobardhan Lal was subsequently added as defendant no.9 in the suit. Three years later, Gobardhan Lal, the mortgagee instituted a mortgage suit being Mortgage Suit No. 87 of 1964 on the basis of the usufructuary mortgage deed in the court of Sub-Judge-I, Gaya. The mortgage suit which was eventually numbered as Mortgage Suit No. 25 of 1966 was contested by the defendants and it was ultimately decreed by the 3rd Additional Sub-ordinate Judge, Gaya on 2nd February 1967. The decree was for a sum of Rs.6,686.60 with further interest @ 6 per cent per annum. 3. The plaintiff’s case was further that the said 3 Gobardhan Lal also obtained a decree against some of the defendants in money Suit No. 27 of 1963 from the court of Munsif-I, Gaya with respect to the arrears of rent relating to the suit house. The plaintiff also stated that the family of defendant no.1 being financially strained needed money to pay the decreetal amount. In such circumstances, the defendant no.1, the owner of the suit house negotiated with the plaintiff for selling the suit house and the sale price was finalized at Rs.13,000/-. According to the plaintiff, it was agreed between the plaintiff and the defendants that in order to avoid future claims and objections, all the defendants would join the sale and it was also agreed between the parties that a sum of Rs.9,000/- would be kept in deposit with the plaintiff to satisfy the decree and the municipal dues regarding the suit house and the remaining sum of Rs.4,000/- would be paid to the defendants at the time of admission of the sale-deed before the registering authority. That, accordingly, a draft of sale-deed was prepared which was approved by the parties and the defendants made over the documents of title and other documents regarding suit house to the plaintiff. Thereafter the plaintiff purchased the requisite stamp from the Treasury on 20th June 1967.Thereafter on 21st June 1967, the sale-deed was scribed. On the following day i.e. 22nd June 1967, the defendants, excepting defendant no.3, executed the sale-deed because the defendant no.3 was not available that day. Subsequently, the defendant no.3 refused to execute the sale-deed, hence, the same could not be registered 4 before the registering authority. 4. The plaintiff stated that despite her readiness and willingness to perform her part of obligation, the defendants did not agree to execute before the registering authority, hence, the suit was filed. 5. The plaintiff also alleged that the mortgage decree was put for execution under Execution Case no.12 of 1967 and the defendants were aware of the execution proceedings and they allowed the said execution proceeding to go with the result that the suit property covered by the mortgage deed was advertised for sale to be held on 17th June 1968 and that the plaintiff in order to protect her interest had to pay off the entire decreetal dues amounting to Rs.7, 786/- on 17th June 1968. 6. The defendant nos. 1 to 8 contested the suit. The defendant nos. 1 & 2 filed their joint written statement wherein they pleaded that the present market value of the suit house was not less than Rs.30,000/- and that it was undervalued. They also pleaded that Bishuni Ram, the husband of defendant no.1 had purchased the house and he possessed the same as owner till his death. That since the suit house was purchased in the name of defendant no.1, she had executed the usufructuary mortgage. The defendants admitted the money decree in Mortgage Suit No. 25 of 1966 and Money Suit No. 27 of 1968. The case of the defendants was that the suit house, due to it being located in the heart of the town, was a valuable property and in auction in the execution 5 case, the bid amount arose to Rs.25,000/-, but on the application of the decree holder, Gobardhan Lal who declined to put the house on sale, the bid was not executed and the decree holder got the execution case ultimately dismissed with some ulterior motive. The defendants alleged that the plaintiff and her men practiced fraud upon the defendants in stopping the sale under bid in the execution case. The defendants stated that they had not negotiated for the sale of the suit house, but they also admitted that there was a contemporaneous agreement between the parties that at the time of finality of the negotiation of the sale, it would be enforceable only on the condition that the plaintiff would pay a sum of Rs.12,000/- after execution of the sale-deed but before its admission before the Registrar in addition to the amount of consideration as made in the sale-deed and in excess of the amount as was to be paid before the Registrar at the time of admission of the execution of the sale-deed. The defendants stated that despite their repeated demands, the plaintiff refused to pay the agreed amount of Rs.12,000/- before the execution and admission of the registration deed as per the oral agreement between them, hence, the sale-deed could not be executed and admitted before the Registrar. The defendants stated that they had contested the execution case and, in fact, they had filed Misc. Case Nos. 14 of 1968 and 15 of 1968 in order to get the execution cases dismissed but the plaintiff being in collusion with the decree holder did not allow the execution cases and their Misc. cases to proceed. The 6 defendants also stated that the plaintiff had not acquired any right or title at the time of depositing the decreetal amount and that she was allowed to deposit the decreetal money on her prayer, on the condition that the deposit will be without prejudice to any claim in future and at her own risk. The defendants stated that such order with regard to deposit of the decreetal money by the plaintiff was passed on 17th June 1968 in the execution case. 7. The defendant nos. 3 to 8 filed their joint written statement and they pleaded that the suit house was purchased by their father Bishuni Ram out of his personal income and that he possessed the same during his life time and till his death. It was their further case that Bishusn Ram ran a Biscuit Factory and a Flour Mill business in the suit premises. That in order to keep the suit house out of the hands of possible creditors or Commercial Department, he got the Kewala for the suit house in the name of his wife, defendant no.1 as a result of which name of defendant no.1 was recorded in the Municipal records. That Bishun Ram died in the year 1961 leaving behind his widow (defendant no.1) and his sons and daughters, defendant nos. 2 to 8 and that after his demise, the defendant nos. 1 to 8 being his heirs inherited the suit house and came in possession of the same as tenants in common. These defendants also pleaded that they were not aware of the mortgage executed by defendant no.1 nor they ever entered into negotiation for the sale of the suit house and that such transaction does not bind them at all. It was pleaded on behalf of minor 7 defendants, namely, defendant nos. 5 to 8 that without previous permission of the court, the defendant no.1 has no right to transfer by sale or enter into any contract for sale of the minors’ property. 8. The learned trial court discussed some orders as passed vide Ext-E/2 Series in the execution case. The trial court mentioned that vide order dated 29th August 1967, Dwarika Prasad and Geeta Devi had filed Vakalatnama in court to bid in the auction sale and that the bid on behalf of Geeta Devi was upto Rs.26,000/- and the bid on behalf of Dwarika Prasad was upto Rs.25,500/-. The trial court also discussed that after the bid, the decree holder filed an application to put off the auction sale and the case was stopped. 9. The learned trial court discussed the registered sale- deed dated 16th March 1952 (Ext-1) regarding the acquisition of the suit house. The deed of execution shows that Bishuni Ram, the husband of defendant no.1 had negotiated the transaction for the purchase of the suit house and he had paid off the consideration money to the vendor. In this context, the pleadings of the defendants was that the acquisition was made in the name of defendant no.1 (Sudha Rani Gupta) in order to keep the property out of the hands of possible creditors or the Commercial Department. The defendants also pleaded that Bishuni Ram was running a Biscuit Manufacturing business and a Flour Mill in the suit house. Ext-D was the license in the name of Bishuni Ram to run a Flour Mill in the suit premises in Dhani Tola, Gaya. The 8 license was renewed on 1st January 1956 and 1st January 1957. The learned trial court considered the evidence of some of the witnesses examined by the parties who stated about the running of the Flour Mill in the suit premises of Bishuni Ram, the husband of defendant no.1. The learned trial court considered that the witnesses stated about the acquisition of the suit house by Bishuni Ram, the husband of defendant no.1, whereas there was no satisfactory evidence from the side of the plaintiff to say that the acquisition was by the defendant no.1 herself. Thus, the learned trial court rightly held that Bishuni Ram had acquired the suit house and after his death, it devolved upon the defendant nos. 1 to 8, who held the property as tenant in common. 10. As against the plaintiff’s claim that there was an oral agreement for the sale of the suit house for Rs.13,000/- and in consequence to the said oral agreement, the execution of the sale- deed (Ext-3) was entered into by the defendant nos. 1 & 2, the defendants pleaded that the oral agreement was also to the extent that the plaintiff would pay in addition to the sale amount of Rs.13,000/- as per the deed a sum of Rs.12,000/- before the execution of the sale-deed and its admission before the Registrar, but the plaintiff subsequently refused to pay the amount of Rs.12,000/-, hence, the deed could not be finally executed and admitted before the Registrar. In this context, the trial court came to find that any such oral agreement was not proved. Thus, the trial court did not find any oral agreement for sale of the house as 9 alleged by the plaintiff or the defendants. But in this context some circumstances are worth considering. Firstly, the order dated 29th August 1967 was passed in Execution Case No. 105 of 1966. Vide Ext-E/2, the suit property was put on auction sale and the bid of Geeta Devi rose upto Rs.26,000/- and the bid of Dwarika Prasad was of Rs.25,500/-, but the bid was not accepted and materialized due to the reason that the decree holder, defendant no.9 had filed a petition for not proceeding with the execution case and the plaintiff had deposited the decreetal amount under the permission of the court, but it being without prejudice to any claim to be raised in future. Hence, it appears worth considering why one would have agreed to sell the suit property for a sum of Rs.13,000/- only, when the same was bringing a price of Rs.26,000/- in the auction sale. In this context since the plaintiff had deposited the decreetal amount in the execution case, the bid could not proceed but the defendants have alleged that it was done in collusion with defendant no.9, the decree holder. On consideration, nothing is found to show that there was any type of agreement between the plaintiff and the defendant nos. 1 to 8 with regard to the plaintiff depositing the decreetal amount in the execution case and thereby getting the case dropped. Thus, there does not appear to be any substance in the claim of the plaintiff that in order to save the interest of the defendants, she had deposited the decreetal amount in the execution cases at the instance of or under any agreement with defendant nos. 1 to 8. 10 11. The trial court on the basis of the evidence rightly came to find that the suit house was acquired by Bishuni Ram, the husband of defendant no.1 and that after his death, the defendant no.1 to 8 had inherited the suit house in equal shares and possessed the same as tenant in common. The learned trial court also found that the defendant no.3 had not joined the sale-deed (Ext-3), hence, he was not liable for any agreement for the execution of the sale (Ext-3). The learned trial court further found that the defendant nos. 5 to 8 being minors were also not liable and bound under any agreement for the execution of sale-deed (Ext-3) which is sought to be executed by the plaintiff. But the learned trial court was of the view that the defendant nos. 1 and 2 having joined the execution of the sale-deed (Ext-3) they were bound to execute it and admit the same before the Registrar and, therefore, the suit was decreed against the defendant nos. 1 & 2 directing them to execute and admit the sale-deed before the Registrar with respect to the suit property. 12. But the issue for consideration is whether the sale- deed (Ext-3) as was executed under LTI and signature of defendant nos. 1 & 2, can be deemed to be agreement to sale and thereby in a suit for specific performance of contract, the defendant nos. 1 & 2 can be asked to execute a sale-deed in performance of such agreement. It has to be remembered here that even the plaintiff has not taken such plea and her case was that there was an oral agreement to sale and in consonance of that the 11 sale-deed (Ext-3) was prepared. It has further to be remembered that the plaintiff failed to prove any such oral agreement. So far the question of considering the sale-deed (Ext-3), as an agreement to sale, even for argument sake, is concerned, it is found that it cannot be so considered, in view of the facts and circumstances that no consideration money, in fact, had passed to the defendants from the plaintiff at the time the execution of the sale-deed and the part of consideration was simply a promise to be done at the time of admission of the sale-deed. So far the question of the plaintiff depositing the decreetal amount in the execution proceeding is concerned, those decreetal amounts were deposited by the plaintiff in the execution proceedings and those decreetal amounts were deposited by the plaintiff at her own, without any prejudice to any claims to be raised by any one and there was nothing to show that such amount was deposited at the instance or consent of defendant nos. 1 to 8, rather the facts were like that the defendants had contested the execution proceedings by filing miscellaneous cases, but they lost the opportunity to contest the same due to the decree holder filing petition for not proceeding with the execution cases. The defendants have alleged that the decree holder got the execution cases dropped in collusion with the plaintiff. Thus in the facts and circumstances, even the sale-deed (Ext-3) cannot be said to carry any element of agreement to sale. 13. There are some further facts to be considered in this case. Vide this Court’s order dated 3rd March 2008 as passed 12 in this appeal, it was on the information of the appellants that the respondent no.12, namely, defendant no.1 had died prior to the filing of this appeal and this Court held that this appeal was not maintainable against the respondent no.12 and her name was struck off from the Memorandum of appeal. In the light of this and others, as discussed above, the discretion of the Court under Section 20(2)(c) of the Specific Relief Act rightly comes in play and that even if an agreement is presumed between the parties, the execution of the sale-deed (Ext-3), in the facts and circumstances of the case, renders it inequitable to enforce a specific performance of contract. In the circumstances, when defendant nos. 1 to 8 are holding the property as tenants in common and there has not been any partition, directing the defendant nos. 1 & 2 to execute the sale-deed with respect to the suit house would really be impracticable and inequitable and such a relief being relief to be granted under the discretion of the court under the Specific Relief Act, the court will not exercise its discretion and in such cases such performance will be improper and inequitable. 14. Learned counsel for the appellants cited the case of Ramdas Vs. Sitabai and others reported in 2009(3) BBCJ SC 359 wherein it has been held that undivided share of a co-sharer may be subject matter of sale, but possession cannot be handed over to the vendee, unless the property is partitioned by metes and bounds amicably and through mutual settlement or by a decree of court. Learned counsel for the appellants argued that the defendant nos. 1 13 & 2 had joined the sale-deed (Ext-3), hence, the trial court has rightly directed them to execute the sale-deed and they can be directed to do so at least with regard to their share in the property. But this submission of the learned counsel is not acceptable in view of the facts that the defendant no.1 is no more and she has already died before the filing of the appeal and her name has been struck off from the appeal holding the same not maintainable against her. The prayer of the learned counsel is also not acceptable in view of the facts that in this case the plaintiff has prayed for a decree, on the basis of agreement to sale but any such agreement has not been proved and that whatever quantum of sale in the suit property is sought to be sold under any agreement is undivided share and there is no prayer for any partition. 15. Referring to the ratio as laid down in the decisions in the cases of Brihanmunbai Maha Nagar Palika and another Vs. Akruti Nirman (P) Ltd. And another reported in (2008)3 SCC 78; Nicholas Vs. Menezes Vs. Joseph M.Menezes and others,. Reported in (2009)4 SCC 791; Ameer Mohammed Vs. Barkat Ali, reported in AIR 2002 Raj. 406; Madhukar and others Vs. Sangram and others reported in 2001(3) PLJR (SC) 192 and Haryana State Industrial Development Corporation Vs. Cork Manufacturing Company, reported in (2007)8 SCC 120 that the appellate court must give reasons to dislodge the finding of the lower court, learned counsel for the appellants argued that the appellate court has not given reasons for dismissing the appellant’s appeal and 14 allowing the cross-objection of defendant nos. 3 to 8 and thereby dismissing the suit. But this submission of the learned counsel is not acceptable in view of the fact that the Hon’ble single Judge mentioned all the reasons and also discretion of the court as available under Section 20(2) (c) of the Specific Relief Act and thereby dismissing the suit of the plaintiff. The reasons are well discussed in the judgment of the Hon’ble single Judge and they have also been considered in this judgment, as above. 16. Thus, in view of the discussions made above it is found that the Hon’ble single Judge has considered all the facts and circumstances of the case and by exercising discretion of the Court under Section 20(2)( c) of the Specific Relief Act, rightly dismissed the appeal and allowed the cross-objections and thereby dismissed the plaintiff’s suit. There is nothing to interfere in the judgment of the Hon’ble single Judge. 17. In the result, this Letters Patent Appeal is dismissed. Parties will bear their own cost althrough. Shiva Kirti Singh,J Patna High Court, Dd. 30th August, 2010. NAFR/ Jay/ Sd/- (C. M. Prasad, J.) I agree. Sd/- (Shiva Kirti Singh,J)