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1982 DIGILAW 451 (ALL)

Surati Devi v. Shyam Dei

1982-03-25

A.SRIVASTAVA

body1982
JUDGMENT A. Srivastava, J. - This appeal is directed against the judgment and decree dated 12.8.1974 of Shri U.S. Tripathi, Additional Civil Judge, Azamgarh, by means of which he has dismissed the appellant's appeal No. 231 of 1971. 2. The appellant Smt. Surati Devi is the defendant no. 2 of suit no. 29 of 1971, filed by Smt. Shyam Dei, respondent no. 1 for specific performance of a contract in respect of a house situate in mohalla Kurmi Tola in the city of Azamgarh, belonging to Vishwanath Ram, respondent no. 2. On 3.12.1969 the said Vishwanath Ram, respondent no. 2 executed a sale deed in respect of this house in favour of the present appellant. After the execution of this sale deed, the respondent no. 1 Smt. Shyam Dei filed the present suit that on 18.11.1969 the said vishwanath Ram had agreed to sell the said house to her for Rs. 4500/- by means of a registered agreement after receiving Rs. 1000/- in cash from her. It is further alleged that when Smt. Surati Devi appellant had purchased this house from Vishwanath Ram she and her husband were fully aware of the agreement to sell between respondent Shyam Dei and Vishwanath Ram. The defence to this suit is that neither the appellant nor her husband was aware of any agreement to sell between the respondents when she had purchased this house from Vishwanath Ram, the respondent no. 2. It is further alleged that there was an agreement to sell between the appellants and respondent no. 2 also which was of 1.9.1969 i.e. of a date prior to the agreement to sell in favour of Smt. Shyam Dei. The agreement to sell in favour of respondent no. 2 cannot, be enforced because Smt. Surati Devi appellant is a bona fide purchaser for value without notice of the agreement for sale executed in favour of Smt. Shyam Dei. The agreement to sell in favour of respondent no. 2 cannot, be enforced because Smt. Surati Devi appellant is a bona fide purchaser for value without notice of the agreement for sale executed in favour of Smt. Shyam Dei. This suit was decreed by the trial court on a finding that Vishwanath Ram had not agreed to seal the house in dispute to the present appellant Smt. Surati Devi on 1.9.1969 as alleged and that the appellant Smt. Surati Devi is not a bona fide purchaser of this house without notice of the agreement of sale between Visawanath Ram and Smt. Shyam Dei The present appellant Smt. Surati Devi then filed an appeal (Civil Appeal No. 231 of 1971), which was also dismissed by the Additional Civil Judge, Azamgarh, after confirming the said finding of the trial court. 3. After examining the record in the light of the arguments made before me I am of opinion that the finding of the courts below that there was no agreement to sell the disputed house in favour of the appellant before the execution of agreement to sell in favour of respondent no. 1 is a finding of fact and is supported by the evidence on record also. 4. The second finding of the courts below is that the appellant Smt. Surati Devi is not a bona fide purchaser of the house for value without notice. This finding is primarily based on the fact that the agreement to sell between the two respondents is a registered one. This finding, however, is not correct. An agreement for sale of house was not required to be registered under any law on 18.11.1969 when Vishwanath Ram executed the sale deed in favour of Smt. Shyam Dei. The registration of an agreement to sell was made necessary only in the year 1976 by Section 30 of the U. P Civil Laws (Reforms and Amendment) Act 1976). Now when document requires no registration, registration of such a document will not raise a constructive notice against the purchaser of such a property. Under the law such a purchaser was not bound to search the Registration Officer to find out whether the property proposed to be purchased was the subject-matter of any contract or not. In this connection a reference may be made to Hira Lal v. Bhagirathi (AIR 1975 Calcutta 445). Under the law such a purchaser was not bound to search the Registration Officer to find out whether the property proposed to be purchased was the subject-matter of any contract or not. In this connection a reference may be made to Hira Lal v. Bhagirathi (AIR 1975 Calcutta 445). In this view of the matter the court below was not justified to record a finding to the contrary merely on a surmise that Vishwanath "might have told" the appellant about the agreement between him and Smt. Shyam Dei. This surmise of the court below is not supported by evidence nor it is acceptable. If Vishwanath Ram had told the fact to the appellant, she would not part with her money to purchase a litigation. Therefore, I do not agree with his finding that the appellant was not a bona fide purchaser or that she had notice of the agreement to sell between the respondents inter se dated 18.11.1969. On this ground alone the decree for specific performance could not be passed against the appellant. 5. There is yet another ground on which no decree for specific performance can be passed in this case. A perusal of the plaint of the suit filed by respondent no. 1 Smt. Shyam Dei shows that she has nowhere alleged that she is ready and willing to perform his part of the contract which she was to enforce by this suit. In the absence of such an averment she has no cause of action to claim relief in this suit. The law on the point is well-settled. A reference in this connection may be made to the following observations made by the Supreme Court in Ouseph v. Joseph Aloy (1969-2 S. C. C. 539): "..........A suit for specific performance has to conform to the requirements prescribed in Forms 47 and 48 of the First Schedule in the Civil Procedure Code. In a suit for specific performance it is incumbent on the plaintiff not only to set out agreement on the basis of which he sues in all its details, he must go further and plead that he has applied to the defendant specifically to perform the agreement pleaded by him but the defendant had not done so. He must further plead that he has been and is still ready and willing to specifically perform his part of the agreement. He must further plead that he has been and is still ready and willing to specifically perform his part of the agreement. Neither in the plaint nor at any subsequent stage of the suit the plaintiff has taken those please." 6. In fact clause (c) of Section 16 of the Specific Relief Act also barred a relief of specific performance in such a suit. This section lays down that: "16. Specific performance of a contract, cannot be enforced in favour of a person - (c) who fails to over and prove that he has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him....." This question also came up for consideration before this Court in Har Pratap Singh v. Satya Narain Misra (A.I.R. 1980 All. 52) wherein two more decisions are referred namely International Contractors Ltd. v. Prasanta Kumar (A.I.R. 1962 S.C. 77) and Sharda Prasad v. Lala Jamuna Prasad (A.I.R. 1961 S.C. 1074). In the latter case the Supreme Court has affirmed Division Bench decision of this Court in Jamuna Prasad v. Sharda Prasad (A.I.R. 1955 Allahabad 186). Therefore, the question is now well settled and in this view of the matter the respondent no. 1 is not entitled to get a decree for specific performance of her contract in this case and her suit has therefore not been rightly decreed by the courts below. Her only remedy is to recover the amount paid by her to the respondent no. 2 under the agreement to sell. An offer has been made by the respondent no. 2 by means of an affidavit filed in this appeal that he is prepared to pay Rs. 1500/- which he has received from the respondent no. 1 at the time of execution of the agreement in question. I am therefore granting such a decree in term of the respondent no. 1 under Order 41 R. 33 C.P.C. though not claimed in the plaint. 7. In the above circumstances this appeal is allowed and the judgment and decree dated 12.4.1974 in Civil Appeal No. 231 of 1971 are set aside. The suit of the respondent no. 1 for recovery of Rs. 1500/- from respondent no. 2 is decreed. In the peculiar circumstances of this case there will be no order as to costs.