Bibi Jaibunnisa v. Jagdish Pandit — 1996 DIGILAW 364 (PAT)

JUDGMENT Gurusharan Sharma, J. - Plaintiff is the appellant. She has lost in both the courts below. 2. On 21.2.1969, by a registered sale deed, Bibi Jaibunnisa, the plaintiff sold one brick built house with tiled roof standing over 2½ Kathas of land in Churi Mohalla of Giridih town for a consideration of Rs. 4000/- (rupees four thousand) to the original defendant, Bimli Devi. Simultaneously, on the same day (21.2.1969), a registered deed of agreement for sale was executed by the defendant for re-conveyance of the aforesaid house to the plaintiff within a period of four years for the same consideration of Rs. 4000/- (rupees four thousand). Out of the consideration amount, Rs. 50/- was paid as advance to the defendant at the time of execution of the agreement and the balance amount of Rs. 3950/-was agreed to be paid at the time of execution and registration of the sale deed. The period of four years was to expire on 21.2.1973, but due to the mistake of the scribe, the date of expiry was wrongly written as March, 1972 in place of February, 1973. As a part performance of the contract the possession of the premises was allowed to remain with the plaintiff and she continued and remained in possession of the said house. Several times in the year 1972 and lastly in January 1973, the plaintiff approached the defendant and offered her the balance amount of consideration money and requested to execute deed of re-conveyance, but she neither accepted the consideration money, nor executed the deed. The plaintiff, therefore, filed the suit for specific performance of contract for sale of the house in suit. 3. In her written statement the defendant, inter alia, pleaded that the suit was not maintainable and was barred by limitation. On 25.1.1969, the plaintiff agreed to sell the suit house to the defendant and received a sum of Rs. 300/- (Rupees three hundred) against the total consideration amount of Rs. 4000/- and executed an agreement for sale. On 01.02.1969, the plaintiff advanced a further sum of Rs. 922/- to the defendant and an additional agreement for sale was executed. Soon thereafter the defendant came to know that the plaintiff had already sold the suit house to Bibi Fatima, wife of Md. 4000/- and executed an agreement for sale. On 01.02.1969, the plaintiff advanced a further sum of Rs. 922/- to the defendant and an additional agreement for sale was executed. Soon thereafter the defendant came to know that the plaintiff had already sold the suit house to Bibi Fatima, wife of Md. Usman by registered sale deed dated 2.11.1968 and Bibi Fatima, in her turn, had executed an agreement for re-sale of the suit property in favour of the plaintiff on the same day. The defendant, therefore, confronted the plaintiff regarding the fraudulent concealment of the aforesaid transaction. The plaintiff thereafter pressurised the defendant to pay her out of the balance of the consideration money further sum of Rs. 2200/- to payoff Bibi Fatima in order to get the suit property re-transferred. The defendant had no other alternative, but to yield to it and so she paid the said amount. The plaintiff obtained transfer of the suit property by registered deed of sale dated 14.2.1969 from Bibi Fatima and thereafter on 21.2.1969 executed a deed of sale with respect to the suit property in favour of the defendant and at the time of execution, received balance of the consideration money. The defendant under coercion and threat and against her will and volition had to execute the deed of agreement for resale of the suit property in favour of the plaintiff on the same day. The defendant had absolutely no say in the matter. In the said deed, a sum of Rs. 50/- was fraudulently and falsely shown to be paid by the plaintiff to the defendant as earnest money. 4. According to the defendant, the plaintiff at no time in the year 1972, nor at any time in the month of January, 1973 approached the defendant through her father Dahu Kumhar, nor offered the balance of consideration money, nor requested the defendant to execute the deed of re-conveyance. The defendant did not promise to execute the deed of re-conveyance at any time. The defendant did not promise to execute the deed of re-conveyance at any time. The plaintiff had no right to demand re-conveyance of the suit property from the defendant, because all these years she and Bibi Fatima were engaged in serious litigation with the defendant regarding title and possession of the suit property and in course of these litigations, she never put forward any claim to the suit property on the basis of the agreement for sale dated 21.2.1969, The plaintiff's case of readiness and willingness to perform her alleged part of the contract was a cock and bull story. 5. On the basis of the evidence on record, the trial court found that the deed of agreement (Ext. 1) was not obtained by the plaintiff from the defendant under coercion and held that there was an agreement between the parties for re-conveyance of the suit property and the deed of agreement for re-conveyance of the suit property was perfectly a valid document and was not obtained under coercion or threat. 6. The trial court thereafter considered the question as to whether the plaintiff has performed or has always been ready and willing to perform the essential terms of the contract to be performed by her in detail and discussed the evidence led by the parties in this regard and held that the plaintiff never offered the consideration money within the period fixed by the contract. The trial court, thereafter, further held that the plaintiff failed to act according to the terms of the contract and as such, lost her right to re-purchase and was not entitled to enforcement of the said contract. 7. On appeal, the learned District Judge, Giridih on careful consideration of the evidence adduced on behalf of the plaintiff found that the plaintiff herself admitted that she had withdrawn the money from the Bank thrice in order to tender the consideration money to the defendant, but the said evidence of the plaintiff was not supported by any documentary evidence. Further, the plaintiff in course of her deposition sought 15 days' time to get herself ready for payment as she was not ready with the money, and according to her deposition, her husband had no deposit to his credit in or about the year 1972. After the aforesaid sale deed, Ext. Further, the plaintiff in course of her deposition sought 15 days' time to get herself ready for payment as she was not ready with the money, and according to her deposition, her husband had no deposit to his credit in or about the year 1972. After the aforesaid sale deed, Ext. A was executed on 21.1.1969 by the plaintiff in favour of the defendant, the matter came to such a pass that the plaintiff and the defendant were locked up in litigation. According to the lower Appellate Court, this was a very clinching circumstance which repelled the case of offer of any amount by the plaintiff to the defendant. It was hardly reasonable to suppose that the plaintiff would have gone to the defendant during this period in order to offer the balance of the consideration money. Besides, the plaintiff has stated that her son Murtaza and one Allauddin had accompanied her when she had offered the amount to the defendant thrice, but Murtaza, PW 2, did not support the evidence of the plaintiff on this point. After the alleged refusal by the defendant to accept the amount, said to have been tendered by the plaintiff she did not send any notice to the defendant within the stipulated period in the agreement, calling upon him to receive the balance of the consideration money and to re-convey the suit property to her. For the aforesaid reasons, the court of Appeal below concurred with the findings of the trial court that the plaintiff did not offer the consideration money to the defendant within the period fixed by the contract. The lower Appellate Court further held that the Agreement for sale (Ext. 1) was not a contract simpliciter, rather a contract for re-conveyance of the suit property in favour of the plaintiff on paying the balance of the consideration money to the defendant within the stipulated period of four years and as such, the time was the essence of the contract and the plaintiff failed to perform her part under contract, namely payment of the balance consideration money within four years and therefore, had no legal right to get the property re-conveyed or to obtain a decree for specific performance of contract and her right to obtain re-conveyance of the suit property was thus lost. 8. 8. At the time of admission of this Appeal, the following substantial question of law was framed : "Whether in absence of any issue that the time was the essence of the contract, the lower appellate court could have dismissed the suit holding that the time was the essence of the contract and as the appellant failed to perform her part of the contract, she was not entitled to any relief ?" 9. Mr. N.K. Prasad, senior counsel for the appellant submitted that the sale deed was for a sum of Rs. 4000/- (four thousand). So also the agreement which could be enforced at any time within 4 years was also for an identical sum; if the defendant wanted to purchase the immovable property for the sake of investment, he would not have agreed to convey the very same property, for the same amount even after four years. The stipulated period for conveying the property was a very long period of four years. The very length of the period is suggestive of the transaction of mortgage and not a transaction of absolute sale with stipulation to re-convey the property in such peculiar circumstances, bearing on the relationship between the parties or some other relevant consideration. If the defendant wanted to purchase the property for his personal occupation, he would not have allowed the plaintiff to continue in the house in question. The property was never mutated in the name of the defendant. These factors clearly spell out the real intention of the parties that it was a transaction of mortgage. The reason for entering into such a transaction of ostensible sale coupled with a contemporaneous agreement to sell within four years was that if it was not garbed with this paraphernalia and was given the nomenclature of a mortgage the period of redemption would have been thirty years. This period could not have been curtailed without attracting the doctrine of clog on equity of redemption. This was obvious reason for resorting to this device. Mr. Prasad further submitted that since the sale was of an immovable property, the time was not the essence of the contract. 10. In this regard, reliance was placed on a decision of the Hon'ble Supreme Court in Smt. Indira Kaur & others VS. This was obvious reason for resorting to this device. Mr. Prasad further submitted that since the sale was of an immovable property, the time was not the essence of the contract. 10. In this regard, reliance was placed on a decision of the Hon'ble Supreme Court in Smt. Indira Kaur & others VS. Shri Sheo Lal Kapoor ( AIR 1988 SC 1074 ), wherein it was held that such a transaction was one of mortgage in essence and substance, though it was clothed in the garb of a transaction of ostensible sale. 11. Mr. Debi Prasad, senior counsel for the respondent on the other hand, referred to a decision of Bombay High Court in Hasam Nurani Malak Vs. Mohan Singh & others (AIR 1974 Bombay 136), wherein it was held that the plaintiffs have failed to prove that they were ready and willing to perform their part of the contract, which was a contract of re-sale and not a mortgage and they were not entitled to any accounts from the defendant. Since time was the essence of the contract of re-sale, the plaintiff had failed to perform their part of the contract within the time stipulated under the contract of re-sale and they were, therefore, not entitled to any decree for specific performance. Our High Court in Bibi Anwarunisa Vs. Daulat Rai and Another (AIR 1988 Patna 229) following Hasam Nurani Malak (supra) held that the conditions which apply to an ordinary contract of sale were not applicable to the deed of re-conveyance and the terms of the re-conveyance deed including the term as to the time has to be strictly construed and if the plaintiff failed to perform his part of the contract within the stipulated period, he cannot come forward to seek relief under the plea that time should not be regarded as essence of the contract. 12. According to Mr. Prasad, in the present case, the plaintiff executed a sale deed in respect of the house in question with condition that the defendant should re-convey the property if the consideration amount was tendered by the plaintiff to the defendant by specific date. There was no proof of tender by the plaintiff. As such, under Section 55 of the Contract Act, the defendant was fully within her right in refusing to execute the sale deed. There was no proof of tender by the plaintiff. As such, under Section 55 of the Contract Act, the defendant was fully within her right in refusing to execute the sale deed. Unless the conditions of Section 58 (c) of the Transfer of Property Act were fulfilled, the deed should not be construed as a mortgage. 13. A reference to the four Judges' decision of the Hon'ble Supreme Court in Chunchun Jha vs. Ebadat Ali & Another ( AIR 1954 SC 345 ) may be made, wherein the question was whether a given transaction was a mortgage by conditional sale or a sale outright with a condition to re-purchase. It was held therein that if the sale and agreement to re-purchase are embodied in separate documents, then the transaction cannot be a mortgage, whether the documents are contemporaneously executed or not. 14. In the case of agreement of repurchase, the conditions of re-purchase must be construed strictly against the original vendor and the stipulation with regard to time of performance of the agreement must be strictly complied with as the time must be treated as being of the essence of the contract in the case of an agreement of re-conveyance. If the original vendor fails to act according to the terms of the contract, the right to repurchase is lost and cannot be specifically enforced. The plaintiff was, therefore, bound to have the re-conveyance made within the stipulated time as the time was of the essence of the contract. 15. We find that in the present case, the plaintiff has failed to prove that she was ready and willing to perform her part of contract, which was a contract for resale and not mortgage. Since time was of the essence of the contract of re-sale, the plaintiff failed to perform her part of the contract within the time stipulated under the agreement for re-sale and she was, therefore, not entitled to any decree for specific performance. 16. Since time was of the essence of the contract of re-sale, the plaintiff failed to perform her part of the contract within the time stipulated under the agreement for re-sale and she was, therefore, not entitled to any decree for specific performance. 16. It is true that there was no issue framed by the trial court whether the time was of the essence of the contract, but in the written statement, the defendant specifically pleaded that after expiry of the stipulated period in the agreement for obtaining re-conveyance of the suit property from the defendant, the sale of the suit house in favour of defendant became absolute and that the plaintiff neither in the year, 1972, nor at any time in January, 1973 approached the defendant, nor offered the balance of consideration money, nor requested the defendant to execute deed of conveyance, nor requested the defendant to execute deed of conveyance. The trial court following the decision in Hasam Nurani Malak (supra) held that since it was an agreement for re-conveyance of the suit property, so the time was of the essence of the contract and the plaintiff failed to act according to the terms of the contract and as such her right to re-purchase was lost and, therefore, she could not enforce the contract. 17. It is apparent that the plaintiff herself also did not treat the transaction (Ext. A) to be a mortgage and, therefore, has not prayed for redemption, rather asked relief for enforcement of the Agreement (Ext. 1 ) and a decree for specific performance. 18. In Smt. Indira Kaur and ors. (supra), neither there was any pleading, nor any issue was framed as to whether time was of the essence of the contract, nor any evidence on the said point was adduced by the parties, whereas in the present case, the defendant pleaded and the parties led evidence on the said point, although no such issue was framed by the trial court and both the courts below concurrently recorded findings of fact that the plaintiff failed to perform her part of the contract within the stipulated period in the agreement. Further in the aforesaid case before the apex court, in the agreement for sale, there was no reference of any transaction of sale, though both the deeds were executed contemporaneously, whereas in the present case, in the agreement (Ext. Further in the aforesaid case before the apex court, in the agreement for sale, there was no reference of any transaction of sale, though both the deeds were executed contemporaneously, whereas in the present case, in the agreement (Ext. 1) it was specifically recited that on the same day (21.1.1969), the executant of the agreement, namely, Bimli Devi, had purchased the property in question by registered sale deed for Rs. 4000/- (rupees four thousand). In the said case, the defendant had permitted the plaintiff to continue in possession of the property in question on payment of rent equivalent of about 13.5% interest on the consideration amount, whereas in the present case, although the plaintiff asked for relief of confirmation of possession, or in case, she was deemed to have been dispossessed, then in alternative for recovery of possession, but has failed to prove her possession over the suit house. In the circumstances, in my opinion, the aforesaid case is distinguishable in the facts and circumstances of the present case and the ratio of the said case is not applicable herein. 19. In view of the concurrent finding by the courts below that the plaintiff failed to tender/pay the balance amount of consideration money within the stipulated time, she was not entitled to get a decree for specific performance of contract for sale in question. This appeal stands concluded by the findings of fact. 20. In the result, this Second Appeal is dismissed, but without cost. B.P. Singh, J. - I agree.