Pratap Singh v. Ram Singh — 1968 DIGILAW 86 (RAJ)

SHINGHAL, J.—This appeal of the plaintiff arises from the judgment and decree of Senior Civil Judge, Udaipur, dated March 24, 1961, by which his suit for specific performance of the contract for sale has been dismissed. 2. The facts of the case are quite simple. Ram Singh, the defendant, purchased plots Nos. 54 A and 55 A measuring 7283 and 8497 square yards, respectively., from the state government, in Udaipur, under pattas" Exs. A. 1 and A. 2. He paid for them at the rate of Rs. 1/- per square yard. "Patta" Ex. A. 1 was obtained by the defendant on July 9, 1949 "Patta" Ex. A. 2 on August 23, 1952. The defendant did not, however, make any construction on the plots beyond constructing some compound wall. Thereafter, there was an agreement between the parties, at Bhilwara, on July 30, 1960. According to the plaintiff, that agreement was a completed agreement for the sale of the two plots to him at the rate of Rs. 1/-per square yard, and no more. Thus the plaintiff took the plea that he was not liable to pay the amount spent on the construction of the compound wall because the defendant had agreed not to charge for it. The plaintiff deposited Rs 1000/-in defendant Ram Singhs account with the Punjab National Bank on August 23, 1950 and, soonafter, he wrote a letter (Ex. 1) to the defendant on August 26, 1960. The genuineness of that letter has been admitted by the defendant and as it is the first communication between the parties, it is of some importance. In that letter, the plaintiff stated clearly that in view of the relations between the parties, the defendant had agreed to dispose of the plots at the price actually paid by him to the Mewar Government and that he had agreed that he would not charge for the boundary wall which was already demolished by heavy rains. Then the plaintiff stated that, because of that agreement between the parties, he had deposited Rs. 1000/- in the defendants account with the Punjab National Bank and that he would deposit more money as soon as he heard from him. Then the plaintiff stated that, because of that agreement between the parties, he had deposited Rs. 1000/- in the defendants account with the Punjab National Bank and that he would deposit more money as soon as he heard from him. In that letter the plaintiff, by way of a re-assurance, informed the defendant that he had raised the necessary funds for the payment of the full price by selling his other property and the property of his wife, and that he was in a position to pay the remaining price at the command of the defendant. The defendant sent reply Ex. 10 on August 30, 1960 confirming that he was charging Rs. 1/- per yard for the plots because that was the price he had paid, and he further stated, with regard to the wall, that he would not charge for it as promised earlier. So far as the price was concerned, he expressed his thanks for the "advance" deposited by the defendant and asked him to intimate the date by which he could deposit the balance. The genuineness of this letter is again not in dispute. It is also not now in dispute that, as was intimated by the plaintiff in his subsequent letter (Ex.3) dated September 9, 1960, the plaintiff informed the defendant that he would deposit more money from time to time and that whatever remained by way of a balance, would be paid to the defendant at the time of the registration. In that letter also, the plaintiff re-iterated, while expressing his thanks to the defendant, that the defendant had agreed to charge the actual price of the land paid by him at the time of the initial purchase. The defendant sent a reply almost after a month on October 11, 1960 and that letter is Ex. 11. In it he stated that he hoped to reach Udaipur by November 15; and asked the plaintiff to get the money deposited in the Punjab National Bank so that on his arrival the sale-deed might be registered. The plaintiff thereupon sent a letter Ex. 8 on October 25, 1960 intimating that he had deposited Rs. 12,000/-in the defendants account and stating that he would pay the rest of the money at the time of registration. The plaintiff thereupon sent a letter Ex. 8 on October 25, 1960 intimating that he had deposited Rs. 12,000/-in the defendants account and stating that he would pay the rest of the money at the time of registration. No reply was received to that communication, even though the plaintiff had taken care to follow it up by a telegram of the same date. It so happened however that, according to the plaintiff, he learnt from the defendants "Kamdar" that negotiations were being made for the sale of the plots to some one else. The plaintiff therefore felt aggrieved and instituted the present suit for specific performance of the contract for the sale of the two plots to him on November 7, 1960. 3. The facts set out above have not been disputed before us. The defendant, however, took the plea that he had made it quite clear to the plaintiff that the entire sale price was to be deposited in his account with the Punjab National Bank, under intimation to him, and that as this was not done, the plaintiff was not entitled to succeed. The defendant also pleaded that it was agreed between the parties that he would be entitled to recover the price of the wall constructed by him. It was also pleaded that, under the terms of the "pattas" referred to above, there was a condition in clause No. 4 that the plots would not be sold without building the houses thereon, and it was not therefore possible for the defendant to make the sale in favour of the plaintiff. These three defences were the subject-matter of separate issues. The burden of proving them was placed on the defendant and the trial court decided them in his favour and dismissed the suit as aforesaid. It is in these facts and circumstances that the present appeal has arisen. 4. The first question for consideration is whether the defendant was not bound to make the sale under the alleged agreement dated July 30, 1960 because the plaintiff did not pay the full price thereof in terms of the agreement ? This point was the subject matter of issue No. 1. The learned trial judge, as has been stated, upheld the defence, and the question is whether his finding is correct ? 5. This point was the subject matter of issue No. 1. The learned trial judge, as has been stated, upheld the defence, and the question is whether his finding is correct ? 5. We have examined the record on the point and we find that the defence taken by the defendant regarding the plaintiffs failure to deposit the entire sale price, could be upheld only if the defendant had pleaded and proved that it was an intrinsic part of the agreement (which was made at Bhilwara on July 30, 1960) that the whole of the sale price would be deposited all atonce. The burden of proving this, lay on the defendant. We have therefore gone through the evidence in order to examine whether that burden has been discharged. The agreement for sale is said to have been made orally at Bhilwara, between the parties, but we find that defendant Ram Singh did not care to record his statement in the trial court so that we do not have it from him that it was an intrinsic condition of the agreement that the cntire sale-price was to be deposited all at-once. It is true that he examined two witnesses, but Bhanwar Lal D. W. 2 has deposed nothing regarding the agreement at Bhilwara. Only Zorawar Singh D. W. 1 has stated that the entire amount was to be deposited, all at once, in the bank. We have read the statement of the witness but we find that it is not reliable. The witness has gone to the extent of stating that the price of the compound wall was fixed at the time of the agreement at Rs. 4,000/-, but we find that even the defendant did not venture to take such a specific defence in his written statement. We are of the opinion that Zorawar Singh has been over zealous in supporting the case of the defendant and, as we shall presently point out on the basis of the documentary evidence, the statement of the witness that the entire sale price at the rate of Re. 1 /- per square yard and Rs. 4,000 on account of the compound wall were to be deposited all atonce, is quite incorrect. 6. We have already referred, in brief, to the correspondence between the parties, for that is the main and the only reliable documentary evidence in the case. 1 /- per square yard and Rs. 4,000 on account of the compound wall were to be deposited all atonce, is quite incorrect. 6. We have already referred, in brief, to the correspondence between the parties, for that is the main and the only reliable documentary evidence in the case. It would appear from the plaintiffs letter Ex. 1 that he informed the defendant that he had made a deposit of Rs. 1,000/- by way of an advance, and he conveyed his willingness to deposit more money on hearing from him. If it had been agreed between the parties that the entire price was to be deposited all atonce, we would have expected a strong re-action to that effect in the defendants reply. But, far from any such reaction, we find that in his reply Ex. 10 dated August 30, 1960, the defendant conveyed his thanks for the deposit of Rs. 1,000/- and asked the plaintiff to intimate the date by which he would be in a position to deposit the balance. This reply is quite sufficient to belie the contention that it was agreed between the parties that the entire price would be deposited all atonce, in a single instalment. We find further support for this conclusion from the documents Exs. 3 and 11. It will be recalled that in his letter Ex. 3 dated September 9, 1960, the plaintiff made it clear that while he had deposited Rs. 1,000/-, he would deposit more money from time to time and pay the remaining amount at the time of registration. The defendant sent his reply Ex. 11 after almost a month on October 11, 1960, but again he did not express his dis-approval of the mode of payment adopted and suggested by the plaintiff and, on the other hand, he gave the intimation that he would reach Udaipur on November 15, and asked the plaintiff to arrange and get the money deposited so that the sale-deed might be registered on his arrival. The correspondence between the parties therefore shows that there is no substance in the plea taken by defendant that the plaintiff was to blame for not depositing the entire sale price atonce in a single instalment, and was guilty of a breach of contract for that reason. The correspondence between the parties therefore shows that there is no substance in the plea taken by defendant that the plaintiff was to blame for not depositing the entire sale price atonce in a single instalment, and was guilty of a breach of contract for that reason. In arriving at a contrary finding, the learned trial judge did not appreciate the fact that the defendant had not proved by any satisfactory parole evidence that it was agreed between the parties at Bhilwara on July 30 1960 that the price was to be paid in one instalment. The learned judge also failed to appreciate the evidentiary value of the correspondence between the parties which, as we have shown, went to prove beyond doubt that there was no agreement between the parties that the plaintiff would deposit the price in a single instalment. On the other hand, the defendant had agreed to its payment from time to time. We have no hesitation, therefore, in setting aside the contrary finding of the trial court on issue No. 1 and in deciding it against the defendant. 7. We now pass on to a consideration of issue No. 3 which relates to the question whether the defendant was entitled to recover the price of the compound wall also, in addition to the price of the two plots of land at the rate of Re. 1/- per square yard. As has been mentioned, this issue has also been decided in favour of the defendant by the trial court, but, here again, that court has not correctly read and appreciated evidence on record. 8. Before considering the evidence, however, we would like to point out that even though much stress has been laid before us, and in the evidence of the defendant, that the price of the compound wall was really settled and fixed at Rs. 4,000/-, at the time of the initial agreement of sale dated September 30, 1960, we find that no such plea was taken in the written statement. We have no doubt therefore that it was an after-thought on the part of the defence to fix the sum of Rs. 4,000/- as the price of the compound wall. The reason for this attempt is quite clear. We have no doubt therefore that it was an after-thought on the part of the defence to fix the sum of Rs. 4,000/- as the price of the compound wall. The reason for this attempt is quite clear. The parties had entered into an agreement for sale, and the defendant was aware of the commitments which he had made in the letters which he had sent to the plaintiff. He therefore found that it would not be possible for him to succeed in claiming any amount on account of the walls without taking the further defence that its quantum or the mode of its calculation had been agreed at the time of the initial agreement at Bhilwara. But we have no doubt that this is an after thought for, if the amount had really been fixed in the manner stated by Zorawar Singh D.W. 1 and argued by the learned counsel for the respondent, it would have been mentioned in the written statement. The fact therefore remains that no amount was fixed, and as there is no evidence to show how the amount of the wall was otherwise to be fixed, it is quite reasonable for us to conclude that the defendant had really agreed not to charge any thing on account of the expenditure incurred by him on the wall. 9. This is in fact fully established by the documentary evidence. We have already pointed out that the plaintiff had taken care to re-state the terms of the sale in his first letter Ex. 1 dated August 26, 1960 and he had further stated in that letter that the defendant had agreed that he "will not charge for the boundary wall which is already demolished by heavy rains." The defendant adverted to this part of the agreement in his reply Ex. 10 dated August 30, 1960, in the following words— "I thank you for your letter. As you know we all paid Re. 1/- per yd. for the A class plot to Udaipur Govt. So I agree to charge you above amount. I promised you that I will not charge you for the wall." It is therefore quite clear from the two documents just referred that there is really no scope for any controversy in regard to the wall. 1/- per yd. for the A class plot to Udaipur Govt. So I agree to charge you above amount. I promised you that I will not charge you for the wall." It is therefore quite clear from the two documents just referred that there is really no scope for any controversy in regard to the wall. The plaintiff had made it clear that nothing was payable on its account, and the defendant had confirmed that this was so. 10. All the same, the trial court was led away by the words "which is already demolished by heavy rains" occurring in Ex. 1 and took the view that the plaintiff had agreed to pay for the boundary wall which had not fallen but continued to exist. We do not find that this would be a proper and natural construction of the plaintiffs letter Ex. 1 but, even if it is assumed, for the sake of argument, that the wordings of the letter were not very direct and explicit, the matter is really clinched by the defendants reply Ex. 10 and we have extracted the relevant paragraph therefrom. The defendants reply that he had promised that he would not charge for the wall, conclusively determines the controversy and leaves us in no doubt that nothing was payable on account of the price of the compound wall under the agreement of sale. We are constrained to say that the contrary finding of the trial court on this point is based on a mis-reading of the evidence. We would therefore unhesitatingly reverse that finding and decide issue No. 3 also against the defendant. 11. This leaves for consideration the question whether the defendant was not in a position to specifically perform the contract of sale because of conditions Nos. 4 and 8 occurring in the two "pattas" Ex. A. 1 and Ex. A. 2. This was the subject matter of issue No. 2 and in respect of it also the trial court has given a decision in favour of the defendant-respondent. 12. The wordings of the two conditions in the "pattas" are quite similar. Clause 4 provides that it would not be permissible to sell the plot without constructing a house, except with the sanction of the Government. 12. The wordings of the two conditions in the "pattas" are quite similar. Clause 4 provides that it would not be permissible to sell the plot without constructing a house, except with the sanction of the Government. Then clause No. 8 provides, inter alia, that for breach of the condition of clause No. 4, it would be open to the government to forfeit the plot after remitting the amount of "nazarana" or the sale price. The question is whether these conditions Nos. 4 and 8 placed such an insuperable difficulty that the defendant was not in a position to carry out his obligation to sell the two plots to the plaintiff. 13. It has been argued by Mr. Agarwal, learned counsel for the appellant, that the learned trial judge was obsessed by the provision of sec. 23 of the Contract Act in deciding the issue in favour of the defendant, because he took the view that the agreement was illegal, even though no such defence had been taken in the written-statement. This contention of the learned counsel is quite correct. He has referred us to some decided cases in regard to the scope and implication of the provisions of sec. 23 of the Contract Act, but we do not think it necessary to refer to or to consider further the question of application of that section, because Mr. Parekh, the learned counsel for the defendant-respondent has very frankly conceded that this is not a case in which sec. 23 of the Contract Act could be said to be attracted. 14. Mr. Parekh has however argued that in view of conditions Nos. 4 and 8 of the "pattas" mentioned above, which were operative by virtue of the provisions of the Rajasthan Government Grants Act, 1961. it was not open to the defendant to specifically perform the contract of sale because the sale required, as a pre-requisite, the consent of a third Party. The learned counsel has tried to support his argument by a reference to Ganjhu Upendra Singh vs. Ganjhu Megh-nath Singh (1), Rabiabibi vs. Gangadhar Vishnu Puranik (2) Punjraj vs. Kalusa (3) and Mansingh vs. Rampiare (4). 15. On the other hand, Mr. The learned counsel has tried to support his argument by a reference to Ganjhu Upendra Singh vs. Ganjhu Megh-nath Singh (1), Rabiabibi vs. Gangadhar Vishnu Puranik (2) Punjraj vs. Kalusa (3) and Mansingh vs. Rampiare (4). 15. On the other hand, Mr. Agarwal has argued that the two conditions mentioned in clauses 4 and 8 of the "pattas" did not have the effect of prohibiting the sale, and that specific performance of contracts of sale have been upheld in worse circumstances where the conditions were much more stringent The learned counsel has supported his argument by reference to Motilal vs. Nanhelal(5), Dr. G. L. Katial vs. MrS.C.W.V, Madden(6) and Mrs. Chandnee Widya Vati Madden vs. Dr. G. L. Katial(7). 16. We have considered the arguments of the learned counsel with due regard to the conditions mentioned above. A reading of these conditions show that an absolute prohibition was not placed against the sale of a vacant plot and the State Government merely reserved, inter alia, the right to "forfeit" the plots after remitting the sale price. The plaintiff was aware of the two conditions and if he chose to ask for specific performance even at the risk of forfeiture in accordance with the provisions of clause 8 of the two "pattas", there could be no reason why the defendant should not have gone ahead and made the sale, for nothing has been shown to us which could be said to prohibit the sale absolutely or to make it void or illegal. The three cases cited by Mr. Agarwal are really of considerable relevance so far as this part of the controversy is concerned and go a long way to show that the claim of the plaintiff for specific performance could not be negatived because of the two conditions relied on by the defendant. In Motilal vs. Nanhe Lal (5) the agreement for sale was ordered to be specifically performed even though sanction to the transfer of the cultivating rights in "sir" land had to be obtained from the concerned Revenue Officer under sec. 50(1) of the Central Provinces Tenancy Act. Their Lordship took the view that in such a case, there was an implied covenant on the part of the vendor to do all things necessary to affect such transfer, including an application to the Revenue Officer to sanction the transfer. In Dr. 50(1) of the Central Provinces Tenancy Act. Their Lordship took the view that in such a case, there was an implied covenant on the part of the vendor to do all things necessary to affect such transfer, including an application to the Revenue Officer to sanction the transfer. In Dr. C L. Katyals case(6) there was an agreement for the sale of a house situated in New Delhi, which contained a clause to the effect that the vendor shall obtain the sanction of the Chief Commissioner for transfer of the site within two months. It was held by their Lordships that the agreement did not remain inchoate unless and until such sanction was obtained, when there was nothing to suggest that the application for sanction was likely to be rejected. They held that, so far as the parties to the agreement were concerned, the agreement was complete, and granted a decree for specific performance. The case went up to the Supreme Court and their Lordships decision is contained in Mrs. Chandnee Widya Vati Madden vs. Dr. G.L. Katial (7). They upheld the judgment of the Punjab High Court and rejected the plea that the contract was not enforceable being of a contingent nature because the condition had not been fulfilled. Their Lordships held that so far as parties to the contract were concerned, they had agreed to bind themselves by it and that even though it was for the Chief Commissioner to decide whether or not to grant the necessary sanction, the High Court was entirely correct in decreeing the suit for specific performance. If we may say so with great respect, the law on the point is really beyond the scope of any controversy, and we do not find any force in the argument that the contract was unenforceable on account of the two conditions in the "pattas" mentioned above. 17. We may here refer to the cases cited by Mr. Parekh. In Ganjhu Upendra Singh vs. Ganjhu Meghnath Singh(l) there was an absolute prohibition against transfer by sale or by creation of "mokarrari", and that was therefore a different case altogether. The decision in Rabiabibi vs. Gangadhar Vishnu Puranik(2) was based on a consideration of sec. 23 of the Contract Act because it was a lease of such a nature as to attract that section. The decision in Rabiabibi vs. Gangadhar Vishnu Puranik(2) was based on a consideration of sec. 23 of the Contract Act because it was a lease of such a nature as to attract that section. In Punjraj vs. Kalusa(3) it was the plaintiff who did not, in the circumstances of the case, want specific performance of the contract, and that was why he did not want to take the permission of the landlord for the transfer of the property in his favour. The reason was that, under the terms of the agreement of sale, it was the plaintiffs own obligation and not of the defendant to secure the consent of the landlord to the sale. The plaintiff therefore found that the contract was difficult of performance since its completion depended on the volition and concurrence of a third person who could not be compelled to give his consent thereto howsoever willing the parties to the contract may to perform their respective parts thereof. It was for that reason that their Lordships took the view that as the fulfilment of the contract, from the very nature, was contingent upon the securing of the consent of the landlord, the plaintiff was entitled to ask the court to direct the defendant to refund the consideration, and it was for that reason that the decree for specific performance was set aside. That case is therefore quite different and can be of no avail. This leaves for consideration the case of Ram Singh vs. Ram Piare(4). In that case sec. 45 of the Tenancy Act operated as a legal bar against the sale and that was why the contract could not be specifically performed. It would thus appear that the cases cited by Mr. Parekh are of no avail to the respondent and, for reasons already stated, we reverse the finding of the trial court on issue No. 2 and decide it also against the defendant. 18. Mr. Parekh has however argued that there was really no agreement for sale at all and that whatever talk took place between the parties on July 30, 1960 at Bhilwara was of a preliminary nature, and that even if there was a proposal from the defendant for sale, there was a counterproposal from the defendant, so that there was no completed agreement of sale. When the learned counsel took up this line of argument, we pointed it out to him that it was hardly possible for him to make any such submission because the defendant had not taken any such plea or had, at any rate, waived it during the course of the trial because it was not the subject matter of any issue between the parties. We do not therefore think it necessary to refer to this argument any further, or to make a mention of those cases with reference to which an attempt has been made to support it. It would be sufficient for us to say that the plaintiff has succeeded, in proving that an agreement for sale took place at Bhilwara on July 30, 1960, as stated in the plaint, and that the defendant was guilty of a breach of that contract. 19. No other point remains for consideration. For the reasons mentioned by us, the appellant is entitled to succeed. We allow the appeal, set aside the judgment and decree of the trial court and decree the suit. We direct specific performance of the contract between the defendant and the plaintiff for the sale of the plots in question on payment or deposit of the remaining sale price of Rs. 3,789/-because it is admitted that Rs. 12,000/- have already been paid to the defendant. On such payment or deposits, the defendant shall execute a sale deed in the plaintiffs favour. The appellant would be entitled to his costs in both courts. It may be mentioned that we have not thought it necessary to direct the defendant to obtain the sanction of the State Government to the sale, because Mr. Agarwal has stated at the Bar that the appellant has already obtained the sanction of the competent authority to that effect.