Case: P. Ramasubbamma Vs. V. Vijayalakshmi &amp; Ors

and 4 and even specific issues were framed, which on appreciation of evidence were held against defendant Nos. 2 to 4. Therefore, the High Court is not justified in quashing and setting aside the judgment and decree passed by the learned Trial Court declaring that sale deeds dated 03.05.2010 are not binding on defendant No. 1 and the plaintiff. 5.4 It is also required to be noted that on appreciation of evidence, the learned Trial Court has specifically given the finding that the alleged sale consideration paid by defendant Nos. 3 and 4 to original defendant No. 2 for executing sale deeds dated 03.05.2010 have not been established and proved by defendant Nos. 2 to 4. Therefore, there was a specific finding given by the learned Trial Court on appreciation of evidence that sale deeds dated 03.05.2010 were nominal sale deeds. The High Court has brushed aside the same on the ground that even in agreement to sell dated 12.04.2005, the amount was alleged to have been paid by cash. However, it is required to be noted that so far as receipt of substantial advance sale consideration mentioned in the agreement to sell dated 12.04.2005 has been specifically admitted by defendant No. 1. Therefore, when it was specifically alleged that defendant No. 2 executed sale deeds in favour of defendant Nos. 3 and 4, who are his sisters-in-law, with a view to defeat the rights of the plaintiff and defendant No. 1 and when it was alleged that they were nominal sale deeds, thereafter, defendant No. 2 was required to prove the receipt of sale consideration mentioned in the sale deeds dated 03.05.2010, which defendant Nos. 2 to 4 have failed to do so. 5.5 It is also required to be noted that on appreciation of evidence, learned Trial Court has specifically found that the stamp papers of agreement to sell dated 12.04.2005 was purchased in the name of defendant No. 2 and therefore defendant No. 2 was aware and in the knowledge of agreement to sell dated 12.04.2005. It is also required to be noted that even defendants did not reply to the legal notice served by the plaintiff, which was issued before filing the suit. 5.6 In light of the aforesaid factual aspects and the findings recorded by the learned Trial Court, the decision of this Court in the case of Lala Durga Prasad & Ors. (supra) is required to be referred to. In paragraph 42, it is observed and held as under: - 42. In our opinion, the proper form of decree is to direct specific performance of the contract between the vendor and the plaintiff and direct the subsequent transferee to join in the conveyance so as to pass on the title which resides in him to the plaintiff. He does not join in any special covenants made between the plaintiff and his vendor; all he does is to pass on his title to the plaintiff. This was the course followed by the Calcutta High Court in Kafiladdin v. Samiraddin [AIR 1931 Cal 67] and appears to be the English practice. See Fry on Specific Performance, 6th Edn., p. 90, para 207; also Potter v. Sanders [67 ER 1057]. We direct accordingly. The aforesaid decision has been subsequently referred to and followed by this Court in the subsequent decision in the case of Rathnavathi & Anr. (supra). 5.7 From the impugned judgment and order passed by the High Court, it appears that the High Court has heavily relied upon Section 34 of the Specific Relief Act. However, considering the fact that specific issues were framed with respect to sale deeds dated 03.05.2010 executed by original defendant No. 2 in favour of defendant Nos. 3 and 4 and the parties led the evidence also on the aforesaid issues and thereafter, when the learned Trial Court had given findings on the said issues and thereafter, had granted the declaration that the sale deeds executed by original defendant No. 2 in favour of defendant Nos. 3 and 4 are not binding on defendant No. 1 and the plaintiff and those sale deeds are nominal sale deeds and that defendant Nos. 2 to 4 have failed to prove that agreement to sell dated 12.04.2005 is a created document and by virtue of the same no consideration has been paid, Section 34 of the Specific Relief Act, upon which the reliance has been placed by the High Court will have no application. 5.8 The High Court has set aside the judgment and decree passed by the learned Trial Court on the ground that the relief under Section 20 of the Specific Relief Act, is a discretionary relief and therefore, in view of the fact that original defendant No. 2 had executed sale deeds in favour of defendant Nos. 3 and 4, the learned Trial Court ought not to have exercised discretion in favour of the plaintiff for passing the decree for specific performance. However, in the facts and circumstances of the case narrated hereinabove and when the learned Trial Court specifically gave the findings that defendant No. 1 – vendor specifically admitted the execution of agreement to sell dated 12.04.2005 in favour of the plaintiff by accepting a substantial advance consideration and that defendant No. 2 was in the knowledge of the agreement to sell and despite the same, he sold the same in favour of defendant Nos. 3 and 4, who are his sisters-in-law and that too the sale deeds found to be nominal sale deeds, the learned Trial Court as such rightly decreed the suit for specific performance and also rightly declared that sale deeds dated 03.05.2010 executed by original defendant No. 2 in favour of defendants No. 3 and 4 are not binding upon the plaintiff and defendant No. 1. The High Court has committed a grave error in reversing the judgment and decree passed by the learned Trial Court by ignoring the vital facts of the case which are either admitted or proved in the instant case.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]4. Though served nobody has entered appearance on behalf of defendant Nos. 2 to 4. Even respondent No. 3 – defendant No. 3 is served by substituted service, namely, by way of publication in two daily newspapers. In that view of the matter, this Court has no other alternative but to proceed further with the appeal ex-parte.5.2 Considering the fact that original defendant No. 1 – vendor – original owner admitted the execution of agreement to sell dated 12.04.2005 and even admitted the receipt of substantial advance sale consideration, the learned Trial Court decreed the suit for specific performance of agreement to sell dated 12.04.2005. Once the execution of agreement to sell and the payment/receipt of advance substantial sale consideration was admitted by the vendor, thereafter nothing further was required to be proved by the plaintiff – vendee. Therefore, as such the learned Trial Court rightly decreed the suit for specific performance of agreement to sell. The High Court, was not required to go into the aspect of the execution of the agreement to sell and the payment/receipt of substantial advance sale consideration, once the vendor had specifically admitted the execution of the agreement to sell and receipt of the advance sale consideration; thereafter no further evidence and/or proof was required.5.3 Now, so far as the sale deeds executed by original defendant No. 2 in favour of defendant Nos. 3 and 4 and the decree passed by the learned Trial Court that the sale deeds executed by original defendant No. 2 in favour of defendant Nos. 3 and 4 are not binding on defendant No. 1 as well as on the plaintiff is concerned, at the outset, it is required to be noted that issue Nos. 4 and 5, reproduced hereinabove, were in respect of the sale deeds executed by original defendant No. 2 in favour of defendant Nos. 3 and 4 dated 03.05.2010. Therefore, specific issues were framed on sale deeds dated 03.05.2010 executed by original defendant No. 2 in favour of defendant Nos. 3 and 4. In that view of the matter, the High Court has erred in setting aside the decree passed by the learned Trial Court by observing that as there was no specific relief/prayer of cancellation of sale deeds dated 03.05.2010 executed by original defendant No. 2 in favour of defendant Nos. 3 and 4, therefore, the learned Trial Court could not have passed the decree that the said sale deeds are not binding on defendant No. 1 and the plaintiff. The High Court has not noted the specific issue Nos. 4 and 5 framed by the learned Trial Court, which were with respect to sale deeds dated 03.05.2010. Therefore, as such, there was a lis between the parties in respect to sale deeds dated 03.05.2005 executed by original defendant No. 2 in favour of defendant Nos. 3 and 4 and even specific issues were framed, which on appreciation of evidence were held against defendant Nos. 2 to 4. Therefore, the High Court is not justified in quashing and setting aside the judgment and decree passed by the learned Trial Court declaring that sale deeds dated 03.05.2010 are not binding on defendant No. 1 and the plaintiff.5.4 It is also required to be noted that on appreciation of evidence, the learned Trial Court has specifically given the finding that the alleged sale consideration paid by defendant Nos. 3 and 4 to original defendant No. 2 for executing sale deeds dated 03.05.2010 have not been established and proved by defendant Nos. 2 to 4. Therefore, there was a specific finding given by the learned Trial Court on appreciation of evidence that sale deeds dated 03.05.2010 were nominal sale deeds. The High Court has brushed aside the same on the ground that even in agreement to sell dated 12.04.2005, the amount was alleged to have been paid by cash. However, it is required to be noted that so far as receipt of substantial advance sale consideration mentioned in the agreement to sell dated 12.04.2005 has been specifically admitted by defendant No. 1. Therefore, when it was specifically alleged that defendant No. 2 executed sale deeds in favour of defendant Nos. 3 and 4, who are his sisters-in-law, with a view to defeat the rights of the plaintiff and defendant No. 1 and when it was alleged that they were nominal sale deeds, thereafter, defendant No. 2 was required to prove the receipt of sale consideration mentioned in the sale deeds dated 03.05.2010, which defendant Nos. 2 to 4 have failed to do so.5.5 It is also required to be noted that on appreciation of evidence, learned Trial Court has specifically found that the stamp papers of agreement to sell dated 12.04.2005 was purchased in the name of defendant No. 2 and therefore defendant No. 2 was aware and in the knowledge of agreement to sell dated 12.04.2005. It is also required to be noted that even defendants did not reply to the legal notice served by the plaintiff, which was issued before filing the suit.5.6 In light of the aforesaid factual aspects and the findings recorded by the learned Trial Court, the decision of this Court in the case of Lala Durga Prasad & Ors. (supra) is required to be referred to. In paragraph 42, it is observed and held as under: -42. In our opinion, the proper form of decree is to direct specific performance of the contract between the vendor and the plaintiff and direct the subsequent transferee to join in the conveyance so as to pass on the title which resides in him to the plaintiff. He does not join in any special covenants made between the plaintiff and his vendor; all he does is to pass on his title to the plaintiff. This was the course followed by the Calcutta High Court in Kafiladdin v. Samiraddin [AIR 1931 Cal 67] and appears to be the English practice. See Fry on Specific Performance, 6th Edn., p. 90, para 207; also Potter v. Sanders [67 ER 1057]. We direct accordingly.The aforesaid decision has been subsequently referred to and followed by this Court in the subsequent decision in the case of Rathnavathi & Anr. (supra).5.7 From the impugned judgment and order passed by the High Court, it appears that the High Court has heavily relied upon Section 34 of the Specific Relief Act. However, considering the fact that specific issues were framed with respect to sale deeds dated 03.05.2010 executed by original defendant No. 2 in favour of defendant Nos. 3 and 4 and the parties led the evidence also on the aforesaid issues and thereafter, when the learned Trial Court had given findings on the said issues and thereafter, had granted the declaration that the sale deeds executed by original defendant No. 2 in favour of defendant Nos. 3 and 4 are not binding on defendant No. 1 and the plaintiff and those sale deeds are nominal sale deeds and that defendant Nos. 2 to 4 have failed to prove that agreement to sell dated 12.04.2005 is a created document and by virtue of the same no consideration has been paid, Section 34 of the Specific Relief Act, upon which the reliance has been placed by the High Court will have no application.5.8 The High Court has set aside the judgment and decree passed by the learned Trial Court on the ground that the relief under Section 20 of the Specific Relief Act, is a discretionary relief and therefore, in view of the fact that original defendant No. 2 had executed sale deeds in favour of defendant Nos. 3 and 4, the learned Trial Court ought not to have exercised discretion in favour of the plaintiff for passing the decree for specific performance. However, in the facts and circumstances of the case narrated hereinabove and when the learned Trial Court specifically gave the findings that defendant No. 1 – vendor specifically admitted the execution of agreement to sell dated 12.04.2005 in favour of the plaintiff by accepting a substantial advance consideration and that defendant No. 2 was in the knowledge of the agreement to sell and despite the same, he sold the same in favour of defendant Nos. 3 and 4, who are his sisters-in-law and that too the sale deeds found to be nominal sale deeds, the learned Trial Court as such rightly decreed the suit for specific performance and also rightly declared that sale deeds dated 03.05.2010 executed by original defendant No. 2 in favour of defendants No. 3 and 4 are not binding upon the plaintiff and defendant No. 1. The High Court has committed a grave error in reversing the judgment and decree passed by the learned Trial Court by ignoring the vital facts of the case which are either admitted or proved in the instant case.