1 IN THE HIGH COURT OF BOMBAY AT GOA. FIRST APPEAL NO.172 OF 2002 1.Mr. Edwin Ribeiro, and his wife, 2.Mrs. Edwin Ribeiro, Both residing at 4-20, Santa Cruz Mansion, Behind Post Office, Santa Cruz (East), Bombay 400 055. 3.Sr. Carma Lizarda N. Ribeiro, (Nun), residing at Margao, Goa. ... Appellants. Vs. Mr. Pandurang Narayan Sukhtankar, son of Narayan Sukhthankar, major of age, resident of Deolmol, Quepem, Goa. (Since deceased by L.Rs.) (1)Mrs. Sarojini P. Sukhthankar, (2)Mr. Narayan P. Sukhthankar, (3)Ms. Shweta P. Sukhthankar, (4)Ms. Shanta P. Sukhthankar, (5)Mr. Rohan P. Sukhthankar. ...Respondents. Mr. A.F. Diniz, Advocate for the Appellants. Mr. S. Usgaonkar, Advocate for Respondents. 2 Coram: A. H. Joshi, J. Dated: 20.8.2009 J U D G M E N T 1. Plaintiff had filed suit seeking relief which is in the nature of prayer for decree for specific performance. Present appellants filed an opposing written statement and had raised a counter-claim seeking the decree for partition. The suit was decreed. Counter claim filed by the defendants was dismissed. Defendants were directed to execute a sale deed in favour of plaintiffs, equivalent to respective shares of the defendants. 2. On the date of trial, the defendants who had remained in contest were defendant No. 1(c), defendant No. 1(d) and defendant No. 3(d). Three heirs of original defendants are appellants before this Court. 3. Suit pertains to land, locally known as “Peneamola” situated at Mollem,Taluka Sanguem. Suit land is described in Land Registration Office under No. 16971 and enrolled for matriz under No. 246. 4. Initially present appellant No. 3 had ceased to have interest due to gift deed of her share in suit property, made by her, on 27.1.1972. However, now she has again come into picture being the legal representative of 3 defendant No. 3. 5. The plaintiff construes the transaction as reached between the parties to be a concluded contract, as seen from the averments contained in paragraph No.11 of the plaint. Said para No. 11 is quoted below for ready reference:- “11. The plaintiff states that the said Hilario Ribeiro and his wife Mrs. Jacinta Ribeiro, and the defendants, and Fr. Jose Xavier Espirito Santo Miranda, Luis Miranda and his wife Mrs. Magdalena N. E. Pereira e Miranda, agreed to sell the suit property to the plaintiff for total price of Rs. 2,25,000/- (Rupees two lakhs twenty five thousand only). This has been confirmed by the defendant No. 1 by his letter dated 4.12.1986. The defendant No. 1 has also the authority of his two sisters, namely the defendant No. 3 and the mother of the defendant No. 4 late Maria Ana Augusta. The same fact has been confirmed again by the defendant No. 1 by his letter dated 29.6.1986.” (quoted from page 53 of paper book of appeal) 6. During the pendency of the suit, most of the defendants whose share is totalling to around 85/96 have executed sale deeds of their share in favour of the plaintiff. 7. Considering the execution of sale deeds, by various defendants the plaintiff's prayer which subsisted was to the extent of share of the defendants who were not agreeing. The plaintiff has therefore amended and restricted the prayer, contained in the plaint, which reads as follows:- 4 “By Judgment and decree the defendants 3 (d), 1(c) and 1(d) namely Sr. Carma Lizanda N. Ribeiro, Mr. Edwin and Mrs. Edwin Ribeiro be directed to execute the sale deed of their shares in the suit property on payment of the cost of their shares as stated in the plaint by the plaintiff.” 8. The defendants Nos. 1 and 2 had filed their written statement. The crux of the defence is contained in paragraph 7, 9, 14 and 15 which are quoted below for ready reference:- “7. The contents of para 11 are not correct. These defendants were not parties to any such agreement of sale neither did any of these defendants confirm any such agreement by any letter whatsoever. It is false that the defendant No. 1 had any authority of his sisters, namely the defendant No. 3, now deceased, and mother of defendant No. 4. It is false that any such thing was confirmed by the defendant No. 1 by his letter dated 29.6.86. 9. The contents of para 13 are false. It is stated that the entire property has an area of 1,79,150 sq. meters and the share of the defendant no. 1 and 2 alone will exceed Rs. 5,00,000/-, and hence the question of selling it for Rs. 52,000/- did not arise. 14. With reference to paras 18 and 19 it is submitted that as the plaintiff was continuously flooding the defendant with letters and requests to sell the property he wrote back to him putting a price of Rs. 81,250/- as his share of the property. However, the plaintiff refused to agree to such payment and therefore, the question of executing any sale did not arise. 15. With reference to para 20 it is submitted that the sale deeds are not binding on the defendants who are not interested in selling their share of the property and they are entitled to get their share separated and disannexed from the entire property.” (quoted from page 68 and 69 of paper book of appeal) 5 9. These defendants had also prayed for decreeing the counter claim by which they had prayed for the relief which reads as follows:- a) to order partition of the suit property and separate possession of the one fourth share of the defendants from rest of the property. 10. The plaintiffs had filed written statement to the counter claim. It is also seen that any specific plea or challenge as regards share of contesting defendants or their claim for partition, if plaintiffs' suit fails, is raised therein. 11. In the aforesaid premises, the learned trial judge had framed four issues relating to:- 1. Proof & existence of agreement of sale. 2. Evasion by defendants to execute the sale deed. 3. Whether the agreement relied upon by plaintiffs binds the defendants Nos. 1 and 2. 4. Entitlement of the defendants Nos.1 and 2, to 1/4th share. 12. Plaintiff has examined himself and one more witness, apart from the documentary evidence such as the written correspondence, notices and reply thereto, in order to prove that the contract enforceable at law was entered. 6 13. The contesting defendants/present appellants have relied on the same correspondence and preferred not to lead any other oral evidence. 14. Mainly on the basis of documentary evidence, the plaintiff relies on existence and proof of a concluded and enforceable contract. 15. On appreciation of oral and documentary evidence, the learned trial judge has recorded finding that exhibit PW1/B, letter dated 12.8.1986 constituted acceptance of offer. 16. The exact text of finding is seen in para 15 of impugned judgment. Relevant portion thereof is for ready reference, quoted as follows:- “15............................................ The plaintiff offered an amount of Rs. 2,25,000/- as a total consideration of sale price and defendant No. 1 by his letter dated 4.12.1986 has stated that his share in the suit property comes to Rs. 56,250/-. He demanded the said amount partly in cash and partly by draft for himself as well as for his sisters. The letter issued by the letter dated 18.12.1986 which is at exhibit PW1/B colly is an unconditional absolute acceptance of the offer made by defendant No. 1 regarding the payment of his share. However he only informed the defendant No. 1 about the intention of Mr. Hilario Rebeiro, the own brother of defendant No. 1 that he wants to divide the consideration in five parts and claim 7 two parts out of it. From the tenor of said letter, it is very clear that the contract was concluded and the condition regarding the payment according to the shares of the co-owners was a condition subsequent and not condition precedent.......................................” (quoted from page 166 to 167 of paper book of appeal) 17. Learned Advocate for the appellants placed reliance on the following judgments: 1. Brij Mohan & ors. Vs. Sugra Begum & ors, (1990) 4 SCC 147. 2. Mayawanti Vs. Kaushalya Devi, (1990) 3 SCC 1. 3. T. L. Muddukrishana & anr. Vs. Smt. Lalitha Ramchandra Rao, AIR 1997 SC 772. 4. Jasmer Singh & ors. Vs. Kanwaljit Singh & anr., AIR 1991 Punjab & Haryana 194. 5. Notam Singh & ors. Vs. The Commissioner, Jullundur Divn. & ors., AIR 1991 Punjab & Haryana 196. 6. Rajendra Kumar Vs. Mahendra Kumar Mittal & ors., AIR 1992 Allahabad 35. 7. Ganesh Shet Vs. Dr. C. S. G.K. Setty & ors., AIR 1998 SC 2216 8. K. Raheja Constructions Limited Vs. Alliance Ministries, 1995 DGLS (soft)580. 18. In these premises the questions which fall for consideration in appeal are:- (1) Has the plaintiff proved a concluded contract of sale between him and the defendant No. 1, the defendant No. 2 and defendant No.3 ? (2) Does the letter dated 4.6.1987, written 8 by defendant No. 1 to the plaintiff amount to refusal to act upon original promise, and putting up fresh offer,and a clear notice to the plaintiff that the sale sought by plaintiff shall not be made/executed,if terms proposed therein are not accepted? (3) Is plaintiff's suit barred by limitation? (4) What relief the appellants are entitled? 19. This Court has perused the documentary and oral evidence on record. 20. In his oral evidence, P.w.1 has tendered a set of documents which trial court has marked as exhibit PW1/B (Collectively). Reading of two letters dated 4.6.1987, and 3.12.1989 which are amongst exhibit P.w.1/B(collectively)in specific,and rest of the evidence on record goes to show as to what was actually transacted between the parties. It reveals from reading thereof that:- (1) In the beginning defendant No. 1 had agreed purportedly for himself and purportedly for his brother - co-sharer the price of entire undivided parcel of suit land. (2) This was done by the defendant no. 1 on a belief but not express authorization that remaining sharer would agree for what defendant No. 1 was transacting. (3) It has not come in positive terms that co- sharers were either agreeing with price or mutually agreed to the same. (4) The defendant No. 2 was claiming amount apart from the price as agreed between the plaintiff on one hand and the defendant No. 1 on the other hand. 9 (5) It however can be safely inferred that between the defendant No. 1 and plaintiff there was an agreement of sale- a concluded contract. 21. Letter dated 4.6.1987 (page 188) written by plaintiff reveals the following:- “ I spent nearly Rs.4,000/-for this trip of mine. The return air-tickets itself are nearly Rs. 2,000/-. I had gone specially for the sake of disposing this “aforament”, and brother with one word closed the chapter. Now to come again, we need Rs. 2,000/- towards the air ticket. Why should I spent to much money for no fault of mine? MY wife was in Goa and brother's wife approached her to ask what we intend to do about this “aforament”. I replied to my wife with a copy of this letter to brother,saying: I and my two sisters have decided to give him towards all his expenses and labour, including the expenses done by his son, Rs. 25,000/- out of this amount brother have to pay me towards my journey, Rs. 2000/-. Then I and my two sister EACH must get Rs. 50,000/-. In short i must get Rs. 52,000/- and each of my sisters must get Rs. 50,000/-. This amount must be paid by you (Mr. Sukhthanker) before signing the sale deed. I have already clarified all this points on my letter which they now deny saying that they have not received it. It is a lie. We do not trust our brother. If you are willing to pay us the said specified amount, then only we will sign and come to Goa not otherwise. If they are agreeable, then we will come just for 2 days. The sale deed and to her formalities are to be completed, on the very same day of our arrival. On the 2nd day we will return to Bombay.” 10 22. It is evident from letter dated 4.6.1987 and subsequent letter dated 15.12.1989, that the plaintiff did not positively or otherwise respond to this communication admittedly received by him till 15.12.1989 i.e. for about 2 ½ years to defendant No. 1's letter dated 4.6.1987. Letter dated 4.6.1987 is produced on record by; plaintiff with his evidence. 23. It is seen from the evidence of the plaintiff that in 1987 itself the sale deed was to be executed which could not be executed. Admittedly, there was controversy in relation to or dispute in relation to distribution/apportionment as well in relation to price or agreed amount of consideration. 24. In subsequent letter dated 30.12.1989, as well defendant No. 1 has in clear words reiterated refusal to execute the sale deed. 25. All that the plaintiff has done is that he has sent the notice of legal action in 1990 after about 2 ½ years from the letter dated 4.6.1987. 26. The notice dated 1.2.1990 refers to the correspondence and also to letter dated 4.6.1987. 11 27. In the oral evidence, the plaintiff has not come with facts based on which he can say in the background of letter dated 4.6.1987, not thereby, but by some other conduct defendants made a positive promise to show existence of willingness and not the refusal to perform their alleged promise to execute the sale deed. 28. It has not come in the plaintiff's evidence as to what was the immediate occasion or cause for him to send the notice dated 1.2.1990 in the background of long acquiescence from receipt of letter dated 4.6.1987. Moreover receipt of letter dated 4.6.1987 is an admitted fact. 29. It is seen that in the background of letter dated 4.6.1987 and the specific plea taken in the written statement about the suit being barred by limitation inorder to show that the suit is within 3 years from the date of refusal, it was the duty of the plaintiff to prove the circumstance in which he has inferred the refusal only after legal notice and not on any other earlier date. 30. Admittedly, correspondence if any in the intervening period i.e. 1987 to 1990 has not been brought on record by the plaintiff. 12 31. Though notice of legal action is dated 1.2.1990, the suit is actually filed on 6.8.1990. 32. The sale deeds by other defendants are admittedly executed during pendency of suit. 33. Admittedly, the contract which was initially entered into between plaintiff on one hand and defendant No. 1 G.A.N. Rebeiro, who had promised to sell would bind his heirs as well. The correspondence exchanged between the parties shows that though defendant No. 1 had agreed upon price of his share by agreeing upon price of entire suit land, other sharers were always at some difference. The process of offer and counter offer has remained a continuous and on going process. 34. It is pertinent to note that other sharers and their heirs, have, by separate sale deeds sold their share to plaintiffs. These sharers who had not initially joined the promise made by defendant No. 1, were claiming that the concluded contract had not emerged, have sold their share to plaintiff. 35. Plaintiff has not proved by producing on record copies of sale deeds, that in the sale deeds executed by 13 those sharers/their heirs the sale was done for the same price and that their sale deeds confirm agreement of sale as reached between the plaintiff and the defendant No. 1. Atleast during oral arguments any such submission and reliance did not emerge, apart that it would not bring suit within limitation, but it would matter as far as defendant No. 3 (d) is concerned. 36. In so far as rights of the present appellants are concerned, nothing has been brought on record by the plaintiff to non suit the appellants as to their claim of share and right of partition. 37. In the course of hearing this Court had queered to learned Advocates appearing, about the extent of shares of the appellants. 38. It has transpired during rival submissions that there is no controversy that the share of the appellants are as follows:- (a) Appellant No. 1 Mr. Edwin Rebeiro: 1/24th share. (b) Appellant No. 2 wife of Mr. Edwin Rebeiro: 1/96th share. (c) Appellant No. 3 Sr. Carma: 1/16th share. 14 39. In view of foregoing discussion findings and conclusion which this Court arrives at as to points framed in para No. 18 are as follows:- (1) Point No. 1. Plaintiff has proved concluded contract with defendant No. 1, but not with defendant No. 2 and defendant No. 3. (2) Point No. 2. (a) A categoric refusal to act as agreed formerly and fresh offer has to be inferred from the letter dated 4.6.1987. No other conclusion would thereby emerge. (b) Mr. G. Rebeiro the defendant No. 1 has in specific terms through his letter dated 4.6.1987 made a fresh offer whereby refusal to act upon earlier offer or promise and made fresh offer was made absolutely clear and unambiguous. (3) Point No. 3. Plaintiff's suit is not filed within 3 years from clear refusal and through letter dated 4.6.1987 is therefore barred by limitation. (4) Point No. 4. Appellants are entitled to shares as indicated in paragraph No. 38. 40. In the light of question which fell for consideration, and the discussion on facts, it is not necessary to discuss the precedents cited at bar. 41 In the background, that the plaintiffs' suit is 15 barred by limitation, the defendants who are present appellants are entitled to their share in partition. In the result, appeal succeeds. Appeal is allowed as below: (a) Plaintiff's suit is dismissed. (b) Counter-claim of appellants is also allowed in terms of paragraph 38 of this judgment- as regards respective share, and they are entitled for partition and separate possession. (c) The appellants shall be entitled to costs of suit and counter-claim throughout. A.H. JOSHI, J. MF/-