R.S.A. No. 536 of 2002 [ 1] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No. 536 of 2002 (O&M) Date of decision: December 24 ,2008 Maya Devi alias Savita Rikhya ..Appellant v. Kulwant Singh Sawheny and others .. Respondents CORAM: HON'BLE MR. JUSTICE RAJESH BINDAL Present: Mr. Arun Palli, Senior Advocate with Mr. Parminder Singh, Advocate for the appellant. Mr. Anil Kshetarpal, Advocate for the respondents. .. Rajesh Bindal J. The defendant is in second appeal before this Court against concurrent finding of fact by both the courts below, whereby the suit filed by respondents No.1 to 7- plaintiffs for specific performance was decreed by both the courts below. Briefly, the facts are that the respondents-plaintiffs filed a suit for specific performance with the averments that the appellant-defendant was the owner of agricultural land measuring 41 kanals 15 marlas bearing khasra No. 65, Khatauni No. 79, Khasra Nos. 44/2/2(1-0), 8/2(0-9), 9/2(3-13), 10(8-19), 12(6-8), 22(7-1), 45/16(6-5), Rakba Chahi Khewat No. 67, Khatauni No. 82, Khasra Nos. 44//26(0-13), Kitas 8 and of Gair Mumkin to the extent of ½ share and of Khewat No. 112, Khatauni No. 139, Khasra No. 44/27(0-18) Gair Mumkin Chahi to the extent of 1/6th share situated at Nabha. On 13.11.1973, the appellant-defendant agreed to sell the land in question in favour of the respondents-plaintiffs for a total consideration of Rs. 1,50,000/-. A sum of Rs. 25,000/- was received in cash as earnest money at the time of execution of the agreement to sell. The sale deed was to be executed within a period of 6 months from the date of agreement. It was further mentioned in the agreement that the land was mortgaged with Sita Devi wife of Prem Raj for a sum of Rs. 25,000/-. After redemption of the land on payment of sum to Sita Devi, balance of Rs. 1,00,000/- was to be paid to the appellant-defendant at the time of registration of sale deed. It was agreed upon between the parties that any litigation with regard to the suit property was to be defended by the respondents-plaintiffs at their own cost as the appellant-defendant R.S.A. No. 536 of 2002 [ 2] was living abroad. It was further averred in the plaint that one Kiran Sharma wife of Surjit Sharma filed a suit for injunction against the defendant-appellant seeking restrain from selling the suit land with the allegation that there was a prior agreement to sell pertaining to the same land in her favour, which was ultimately dismissed on 1.4.1976. Another suit for specific performance of contract was filed by Sita Devi wife of Prem Raj requiring the defendant-appellant to execute the mortgage deed in her favour which was dismissed on 11.12.1978. A general power of attorney was executed for the purpose on 9.8.1977 which was duly registered. In view of the fact that litigation regarding the property in dispute was pending and the sale deed could not be executed, on request of the respondents- plaintiffs the appellant-defendant extended the time for registration of sale deed for a period of two years from the date limitation to file suit from the earlier agreement was to expire, i.e., till 13.5.1979. As 13.5.1979 was Sunday, the suit was filed on 14.5.1979. Both the courts below found favour with the contentions raised by the respondents-plaintiffs and decreed the suit for specific performance. Learned counsel for the appellant-defendant submitted that document (Ex. C1) dated 21.1.1977, vide which the earlier period for execution of sale deed was shown to have been extended was not executed by the appellant. Even if it is presumed to have been executed, recitals therein do not show that it was an act of extending the period provided for execution of sale deed, rather, it was only her willingness to do so and there being no acceptance from the side of the respondents, the time was never extended. The document even otherwise as such was not admissible in evidence, the same having not been attested in accordance with law. The same was not even exhibited during the course of trial, as it was merely at the fag end at the time of argument that on an application filed by the respondents-plaintiffs, it was exhibited. Even if earlier litigation was pending with regard to the property in question, that did not extend the period of limitation as such. The original agreement was executed on 13.11.1973. If the extension, as is sought to be projected by the respondents vide document (Ex. C1), is excluded, the suit was hopelessly time-barred. Even from that date as well, the suit was filed on the last date fixed for execution of the sale deed, which clearly established that the respondents-plaintiffs were not ready and willing to get the sale deed executed. He further submitted that in fact the respondents-plaintiffs misused their relationship with the appellant-defendant, as power of attorney had been given in their favour for certain acts to be carried out on her behalf and it was in good faith that certain documents were got executed from the appellant by the respondents. Document (Ex. C1), being a statutory declaration, not attested by a Notary Public, is not R.S.A. No. 536 of 2002 [ 3] admissible as such in evidence. Even in terms of Section 20 of the Specific Relief Act, 1963 (for short, `the Act'), the decree for specific performance of agreement to sell cannot be passed at this stage, the relief being discretionary, because of the time lag. The submission is that the appeal involves substantial questions of law and deserves admission for consideration thereof. On the other hand, learned counsel for the respondents-plaintiffs submitted that a perusal of agreement to sell executed by the appellant on 13.11.1973 with the respondents clearly shows that recital was made regarding the mortgage of the property in question with possession to Sita Devi. It was also mentioned that any litigation with regard to the property in question was to be defended by the respondents at their own cost. Immediately after the agreement to sell was executed on 13.11.1973, Sita Devi filed a suit on 21.11.1973 which was ultimately dismissed. Respondent No.1 was in fact given power of attorney by the appellant-defendant only for the purpose of defending litigation on her behalf. It was only because of pendency of the litigation and stay by the courts that sale deed could not be executed and as the respondents were defending the litigation on behalf of the appellant, vide document (Ex. C1) executed by the appellant while in Canada, the period for execution of sale deed was extended. It also clearly mentions about the litigation and stay by the Court therein. He further referred to an application dated 23.7.1980 (Ex. P2) filed by the appellant-defendant before the Income Tax Officer for getting “No Objection Certificate” to transfer the property to the respondents. She even got her statement recorded before the Income Tax Officer. A draft sale deed was produced there. In support of the application, an affidavit was also sworn by the appellant along with which two surety bonds were annexed, which were of the respondents who admitted of their being vendees. On 21.7.1980, even demand drafts for the balance sum were also got prepared. To get the same credited in her account, the appellant and her husband opened a bank account for the purpose. However, the demand drafts had to be ultimately cancelled as the sale deed was not executed. To defeat the rightful claim of the respondents, the appellant- defendant even got a suit filed from her nephew on flimsy grounds which was ultimately dismissed. Another suit was filed by the so-called brother of the appellant on 29.7.1980 which was defended by respondent No.1 as attorney of the appellant. The litigation went upto Hon'ble the Supreme Court. Copy of the judgment in the suit filed by Sita Devi was also referred to as mark X-1, where even the respondents were also party. He further submitted that there is no question of denial of execution of document (Ex. C1) extending the period for R.S.A. No. 536 of 2002 [ 4] execution of the sale deed as the appellant, though visited India a number of times, but never choose to appear in Court to face her cross-examination with regard to the document. No error has been committed by the learned court below in placing reliance on the document as the same, as such, was not required to be executed on any stamp paper or attested as simple acknowledgement on a plain paper was enough. He further submitted that it is not mere document (Ex. C1) which established that the parties were still ready and willing to adhere to the terms of agreement to sell, rather, it is the conduct of the appellant-defendant even thereafter which clearly corroborated the fact that there was extension of time for execution of sale deed and it was only for this reason that she came to India and filed application with the Income Tax Officer for seeking “No Objection Certificate” where even her statement was also recorded and affidavit was also filed. Even otherwise, the document was duly proved on record with the evidence and examination of signatures put by the appellant thereon which were even confirmed by the witness produced by the appellant. As far as denial of relief of specific performance considering Section 20 of the Act is concerned, it was submitted that the respondents were not at fault. The suit was filed way back in 1979, which remained pending for almost 20 years before the trial court on account of delaying tactics by the appellant-defendant. For that reason, the respondents should not be made to suffer as they had approached the court at the right time and even after filing of the suit, the appellant-defendant was ready and willing to execute the sale deed. Merely because the litigation remained pending, the respondents-plaintiffs should not be deprived of their legitimate relief. The prayer is for dismissal of the appeal. Heard learned counsel for the parties and with their assistance perused the relevant referred records. The admitted facts on record are that the appellant executed an agreement to sell in favour of the respondents on 13.11.1973, which contains recitals regarding the property being under mortgage with possession to Sita Devi. The respondents were to defend the litigation, if any, with regard to the property at their own cost. A power of attorney was also executed in favour of respondent No.1 by the appellant for defending the litigation. The relevant clauses of the agreement to sell dated 13.11.1973 (Ex. P1) are extracted below: “9. That in case some expenses are required to be incurred in respect of the land agreed to be sold for redeeming the land or otherwise and also in case there is some dispute or claim by any other person then Party No.2 shall incur all the expenses R.S.A. No. 536 of 2002 [ 5] in order to protect and defend the rights of party No.1 as Party No.1 is living abroad and Party No.2 shall not be entitled to claim any such expenses incurred therein from Party No.1. However, Party No.1 shall give full assistance in respect thereof. 10. That in case personal presence of Party No.1 is required in India at the instance of Party No.2, then the actual air travel charges shall have to be paid by Party No.2. 11. That the property is free from encumbrance except the above said mortgage and Party No.1 is responsible for any defect in title and Party No.2 has also satisfied itself about the rights and title of Party No.1 in the property being sold. 12. That Party No.2 shall obtain the income tax clearance from office if necessary for executing the sale deed but Party No.1 shall give the necessary assistance.” On 12.11.1973, Kiran Sharma wife of Surjit Singh filed suit against the defendant-appellant seeking permanent injunction restraining her from alienating the suit property, which was dismissed on 1.4.1976. Sita Devi filed a suit for specific performance of contract against the defendant-appellant on 21.11.1973, which was ultimately dismissed. Another suit was filed by Surjit Singh on 17.4.1976 claiming himself to be the adopted son of Bhola Singh seeking declaration to the effect that he was owner in possession of the suit property which was dismissed by the trial court. However, in the first appeal, the judgment and decree of the trial court was reversed which was again set aside by this Court in R.S.A. No. 858 of 1983, decided on 16.8.1990 (Ex. P40). It is relevant to add here that this litigation was defended by respondent No.1 as attorney of the appellant. As the sale deed could not be executed because of pending litigation regarding the suit property, vide document Ex. C1 dated 27.1.1977 executed by the appellant in Canada, time for execution of sale deed was extended through admission of document is sought to be disputed by the appellant on technical grounds. Relevant clauses of document (Ex. C1) are extracted below: “1. By agreement of Purchase and Sale dated the 13th day of November, 1973, I agreed to sell and Shri Kalwant Singh Sawhney son of S. Partap Singh and Shri Gian Chand Jain, son of Shri Ramji Dass of Nabha District Patiala, Punjab, India agreed to purchase lands being 41K-15M in the said Nabha District, Patiala, Punjab, India for the sum of Rs. R.S.A. No. 536 of 2002 [ 6] 1,50,000/-. 2. The said Agreement of Purchase and Sale was to have been completed within six months of the 13th day of November, 1973, during which period of time the sale deed was to have been executed. 3. The sale deed aforesaid was not executed within the six month period aforesaid as stipulated by the said Agreement of Purchase and Sale as a result of legal action and suits filed by one Kiren Sharma, wife of Surjit Singh of the said Nabha District, Patiala, Punjab, India and by one Sita Devi, wife of Prem Chand of the said Nabha District, Patiala, Punjab, India. 4. As a result of the legal actions commenced by the abovesaid parties a stay order was obtained from the Sub Judge, Ist Class, Nabha District, Patiala, Punjab, India. 5. Neither of the above parties who commenced legal action aforesaid have any right, title or interest of any kind whatsoever in my said lands. 6. I am advised that limitations for enforcing the above said Agreement of Purchase and Sale dated the 13th day of November, 1973, expires on the 13th day of May, 1977 and in order to consumate the above said Agreement I am prepared to extend the period of closing this transaction with the original purchasers on the 13th day of May, 1977, for a period of two years, upon the same terms and conditions as set out in the original Agreement of Purchase and Sale aforesaid. 7. I am advised and variably believe that one of the original purchasers, one Shri Gian Chand Jain has deceased however, notwithstanding I am prepared to execute the sale deed for the deceased party's interest in the said lands in favour of his wife, Shri Mati Shakuntla Raney, one of the deceased party's legal heirs provided all the terms and conditions of the original agreement of Purchase and Sale aforesaid remain the same, save and except as to he extention of time for executing the sale deed as agreed to by myself aforesaid.” The suit was filed on 14.5.1979. The appellant-defendant for the first time put in appearance in the suit on 10.9.1980 after service of notice. Further, it is evident from the record that prior to the service of notice in the suit, R.S.A. No. 536 of 2002 [ 7] the appellant in fact had been taking steps to get the sale deed executed in favour of the respondents, as is clear from an application on form No. 34-A (Ex. P2) filed before the Income Tax Officer for issuance of certificate under Section 230(1) of the Income-tax Act, 1961. Even a draft sale deed (Ex. P4) mentioning the demand draft number, vide which the payment was to be received by the appellant- defendant was annexed with the application. The appellant even got her statement recorded before the Income Tax Officer stating therein that she had signed the agreement to sell the land for Rs. 1,50,000/- with the respondents. Along with the application, an affidavit was also sworn admitting sale of land for a consideration of Rs. 1,50,000/-. This was accompanied by two surety bonds (Ex. P6 and Ex. P7) signed by Shakuntla Rani and Kulwant Singh son of Partap Singh, respondents No.1 and 2- vendees, who stood sureties to the extent of ½ share each in case any liability of income tax, gift tax, wealth tax or any direct tax was found to be due against the appellant. The above mentioned two sureties even got their statements (Ex. P8) recorded before the Income Tax Officer to that effect on 29.7.1980. On 21.7.1980, the appellant along with her husband Gian Chand opened a bank account with Allahabad Bank. The account was opened on an introduction by the Manager of Allahabad Bank, Parliament Street, New Delhi. Ex. P12 to Ex. P19 are the applications filed by the respondents for getting the demand drafts of various amounts issued in favour of Maya Devi in terms of their shares in the property. Even copies of the demand drafts and cancellation thereof are also on record as Ex. P20 to Ex. P34. It is relevant to mention here that power of attorney executed by the appellant-defendant in favour of respondent No.1 for taking care of the property in question in various litigations initiated by different parties was cancelled by the appellant after service of notice in the suit. As far as document (Ex. C1) is concerned, I do not find any merit in the submission of learned counsel for the appellant to the extent that the same should not be read in evidence as such, having not been attested by the Notary or the same having not been proved on record formally. In my considered opinion, the learned courts below have fairly dealt with this aspect of the matter. In civil proceedings, it is probabilities on preponderance of evidence as a whole. No document is to be considered or rejected in isolation. The appellant did not choose to appear before the court to deny the execution of the document. It was only her attorney who was representing her in the case. Her signatures on the document have been duly compared with her standard signatures on various other admitted documents and no suspicion was found therein as such. Not only this, even DW6- R.S.A. No. 536 of 2002 [ 8] Sh. R. J. Rai, Advocate, produced by the appellant-defendant, stated that he recognised the signatures of the appellant on document (Ex. C1). Section 18 of the Limitation Act only provides that there has to be acknowledgement for extension of limitation. It no where provides that acknowledgement has to be registered or notarised. Once the signatures of the appellant on document (Ex. C1) are proved, the appellant having not stepped into the witness box, the learned courts below have not committed any error in placing reliance on the said document. As far as contention of learned counsel for the appellant that the document only recited that the appellant-defendant was ready and willing to extend the period and in fact there was no act subsequent thereto on the part of the respondents to accept the same, is totally misconceived for the reason that subsequent to the execution of the document before the notice in the suit filed by the respondents was served upon the appellant, by her own conduct while filing application before the Income Tax Officer, getting her statement recorded, placing on record there a copy of the draft sale deed and also asking the respondents to stand sureties for her is sufficient to come to the conclusion that intention of the parties was to extend the period for execution of the sale deed and both of them were ready and willing to execute the sale deed in terms of the agreement. As far as plea regarding grant of relief of specific performance to the respondent-plaintiff in terms of Section 20 of the Act is concerned, I do not find any merit in the submissions of the appellant for the simple reason that till the year 1980, the respondents were ready and willing to execute the sale deed, as is evident from the material placed on record and since then the litigation is pending in the civil court. It is not a case of delayed filing of suit. Even the factum of not filing the suit earlier also cannot be taken against the respondents for the reason that there were earlier litigations pending regarding the suit property, which were initiated by the relatives of the appellant and some of them were even defended by the respondents, one of them being decided by this Court even during the pendency of the present litigation. This was in terms of the recital in the agreement to sell. Meaning thereby even if it is assumed for argument's sake that the consideration, as agreed upon between the parties, for sale of property was less than the market value on that date, the same was in fact accompanied with litigation. Once the vendor was admitting her liability, there was no question of filing the suit at that stage and the same was filed when the execution of sale deed was refused. No argument has been addressed on any of the applications filed in R.S.A. No. 536 of 2002 [ 9] the appeal before this Court. Accordingly, the same are dismissed. For the reasons mentioned above, I do not find that any illegality has been committed by the courts below in decreeing the suit of the respondents- plaintiffs. The findings are plain and simple findings of fact giving rise to no question of law, much less a substantial question of law. Accordingly, the appeal is dismissed. (Rajesh Bindal) Judge December 24, 2008 mk