Nand Lal Singh v. Krishna Sharma @ Kishun Sharma — 1997 DIGILAW 275 (PAT)

Judgment O.N. Asthana, J. This is the first civil appeal against the judgment and decree dated 9th September, 1986 where the trial Judge decreed the plaint of the plaintiffs-respondents for the specific performance of the contract. 2. The property shown in schedule A attached with the plaint lies within Khasmahal of estate of State of Bihar bearing Tauzi No. 599, and this property was recorded in the name of late Ram Narayan Lal in the settlement records, who died living his sons defendants Nand Lal Singh, Mani Lal Singh and Shambhu Prasad Singh, defendants 1, 3 and 4 and Shanti Prasad Singh (deceased son and represented by his widow Smt. Ramia Devi defendant No. 2 in the case); this property came in the joint possession of the four sons of Ram Narayan Lal; the plaintiff-respondent No. 1 Sri Krishna Sharma has been occupying two road side front rooms and the outer verandah of this property on a monthly rent of Rs. fifty since November, 1961, and this plaintiff respondent has been running the business for his livelihood in this tenanted accommodation. 3. fifty since November, 1961, and this plaintiff respondent has been running the business for his livelihood in this tenanted accommodation. 3. The case of the plaintiff is that in the year, 1979 these defendants 1, 3, 4 and late Shanti Lal (sons of Ram Narayan Lal) needed considerable money to perform the marriages of their daughters and sons, and they became anxious to sell this property shown in schedule A of the plaint in order to raise money for the performance of the marriages of their own family members including the daughters; the plaintiffs came to know of it and expressed their desire to purchase this property; that these defendants 1, 3, 4 and late Shanti Lal as kartas of their respective branches and in the knowledge and with the approval of the junior members of their family agreed to sell this house property to the plaintiff for Rs.35,000, and finally defendants 1, 3, 4 and late Shanti Lal executed the deed of agreement, Exhibit-3 on 17th March, 1979 agreeing to sell this house property to the plaintiffs for Rs.35,000/-, and the defendants 1, 3, 4 and late Shanti Lal were paid Rs.11,603/- by these plaintiffs on the same day on 17th March, 1979 as earnest money, and it was agreed that the balance sale consideration shall be paid by the plaintiffs at the time of the execution and registration of the sale deed; it was agreed between the parties that the defendant would be vacating this house premises and would hand over possession of it to the plaintiff in the month of Baisakh; that on the same day on 17th March, 1979, these defendants 1, 3, 4 and late Shanti Lal filed a petition to "the Area Sub-divisional Officer, Sahibganj for obtaining necessary prior permission from the Area District Collector, Dumka permitting the defendants to sell this property to the plaintiffs, as under Khasmahal property of Sahebganj town, the permission was necessary for making a transaction of the properly. This petition for permission was registered as P.R. Case No. 72 of 1978-79. 4. Further, the plaintiffs pleaded this agreement dated 17th March, 1979 was executed in presence of the other members of the family of the defendants including defendants 5 to 11, and Rajendra Prasad Singh, son of defendant No. 1 and another person Puran Singh attested this deed of agreement dated 17th March, 1979 as witnesses. 5. 4. Further, the plaintiffs pleaded this agreement dated 17th March, 1979 was executed in presence of the other members of the family of the defendants including defendants 5 to 11, and Rajendra Prasad Singh, son of defendant No. 1 and another person Puran Singh attested this deed of agreement dated 17th March, 1979 as witnesses. 5. The plaintiffs pleaded that they were always ready and willing to pay all the consideration money due to the defendants, and even they were ready and willing to pay the entire consideration money on the date of agreement itself, but the prior written information (sic) of the District Collector, Dumka for sale was mandatory requisite before the sale; that the permission slip, Exhibit-7 was issued on 1st July, 1983, though the final order of District Collector, Dumka was passed on 19th December, 1983 sanctioning the sale of the suit property provided defendants paid all the rental dues up to date and also got the lease renewed; that later in time it came to the knowledge of the plaintiffs that the lease of the defendants relating this property required renewal, and this lease renewal case No. 18 of 1968-69 was finalised on 12th May, 1982 ordering the renewal of lease in favour of defendants 1, 3, 4 and late Shanti Lal. 6. Further, the plaintiffs being perturbed due to the unnecessary delay on the part of the defendants in getting the final mission for sale, the plaintiffs served registered notices by post on the defendants through their advocates on 14th July, 1983; that the defendants should accept the balance consideration money and defendant should execute the sale deed within fifteen days of the receipt of the notice, and these notices were served on defendants 3 and 2 personally on 19th and 30th July, 1983 respectively and the defendants 1 and 4 refused to take the notice finally. 7. The plaintiffs pleaded that they were still ready and willing to perform their part of the contract and to pay the balance sale consideration to get the sale deed executed in their favour, to the defendants. The plaintiffs also expressed in the plaint that they were ready to deposit the balance sale consideration of Rs.23,397 as and when ordered and permitted by the Court. 8. The plaintiffs also expressed in the plaint that they were ready to deposit the balance sale consideration of Rs.23,397 as and when ordered and permitted by the Court. 8. The defendants raised the defence that besides four sons Ram Narayan Lal left a daughter Bhuli Devi; that the defendants 1 to 4 did not require money in connection with any marriage in the family and they did not enter into any agreement with the plaintiff for selling their residential house property for Rs.35,000/- that the defendants never received Rs.11,603/- as advance towards any sale consideration; that earlier these defendants were taking small loans at times separately from plaintiff No. 1 and thus a sum of Rs.11,603/- including interest was found due from the defendants; and the plaintiff No. 1 exerting undue influence and coercion obtained this deed from the defendants on 17th March, 1979 misrepresenting that the deed was being created only to lease out the portion of the suit property in occupation of the plaintiff No. 1 for the longer period; the plaintiff No. 1 also managed to obtain the signature of the defendants on an application; but it was not on the instructions of the defendants, and its contents were also not read over and explained to the defendants; that the suit property was worth Rs. one lac and the defendants reside in it; that on 17th March, 1979 there was no lease of this suit property in the name of the defendants and as such there could be no agreement to sell; that the defendants 5 to 11 sons of defendants 1 to 4 are having the coparcenary interest in this house property, and there was no necessity in the family to sell the property and that the suit has been filed beyond limitation. 9. The trial Judge arrived at the findings that the suit was filed within limitation; that the agreement dated 17th March, 1979, Exhibit-3 is a genuine document and Rs.11,603/- was paid by the plaintiffs to the defendants as part sale consideration; that the property was being sold by defendants 1 to 4 as karta of the branches and for legal necessity; that the plaintiffs have always been ready and willing to perform their part of the contract. 10. 10. The learned advocate for the appellants raised the contentions that the suit was barred by limitation; that there was no agreement to sell; that there was no legal necessity to sell this house property and that the plaintiffs had failed to show that they had been ready and willing to purchase these properties. 11. In the agreement deed, Exhibit-3, it was written that the sale deed be executed in Baisakh. The year had not been mentioned with month of Baisakh. The Hindi Month Baisakh is within April or May of English calendar year. 12. Article 54 of the Limitation Act lays down the period of limitation for specific performance of the contract as three years from the date fixed for the performance or if no such date is fixed when the plaintiff has notice that performance is refused. 13. Undoubtedly, the permission to sell this property was required under the law from District Collector before executing any deed of transfer relating this property. 14. Firstly, the deed of agreement is silent about the year and the performance of the contract was to be carried finally for the execution of the sale deed. Secondly, this agreement to transfer the property was subject to the statutory requirement of the permission of the District Collector, and without the permission of District Collector, this property was not transferred. The decision Nathulal vs. Phoolchand, A.I.R. 1970 Supreme Court 546 lays down that the agreement to transfer such a property shall be deemed subject to the implied condition' that the transferor will obtain the sanction of the authority concerned. 15. Thus, the limitation in this case shall start from 19.12.1983 when the District Collector accorded the permission to sell or earlier from 01st July, 1983 when such a permission slip was issued. 16. Accordingly, the contention of the appellants that the suit is beyond limitation has no force. 17. The defendants have stated on oath in the Court that they signed the blank paper called Exhibit-3 and there was no agreement for selling this house. Obviously, this statement of the defendants on oath is a false one. In the written statement, the defendants alleged that the plaintiffs, making misrepresentation and exercising undue influence, got this document executed by these defendants, and the plaintiffs represented that the document had been executed by these defendants for securing the outstanding dues against each of the defendants. 18. Obviously, this statement of the defendants on oath is a false one. In the written statement, the defendants alleged that the plaintiffs, making misrepresentation and exercising undue influence, got this document executed by these defendants, and the plaintiffs represented that the document had been executed by these defendants for securing the outstanding dues against each of the defendants. 18. There is no evidence on behalf of the defendants that undue influence was exercised by the plaintiffs. The plaintiffs were only the tenants in a portion of this house and the defendants were the landlords. 19. Relating the alleged contention of the defendants that they were indebted to the plaintiffs as they were taking small loans from time to time and thus they were called upon to execute this deed, Exhibit-3. The depositions of the defendants in the trial Court discloses that none of the defendants remembered what amount of loan was taken by them from the plaintiffs and on which date and what was the total amount of the loans. The defendants even could not tell how many times they took the loan from the plaintiffs. There is no documentary evidence of any kind on the record to show that the defendants took loan from the plaintiffs. The defendants stated that they never repaid any part of the alleged loan taken by them from the plaintiffs. Considering this evidence, it is held that the defendants had failed to prove that they were indebted to the plaintiffs at the time when they executed this agreement to sale. 20. The learned advocate for the appellants has drawn attention to the recitals in the agreement, Exhibit-3. In this agreement, the recitals are that these four defendants were occupying the house dividing it amongst themselves and these defendants were in need of the money for marrying their own sons and daughters and they were agreeing to sell this house to the plaintiffs for Rs.35,000/- as settled between the parties and that the four defendants took the advance sale consideration of Rs.11,603/- and the defendants agreed to execute the deed of sale in the month of Baisakh and that the defendants would be applying to Sub-divisional Officer of the Area for the permission to transfer. In this agreement, all the defendants put their individual writings and the signatures what amount the defendants individually received in cash from the plaintiffs on the day of execution of this agreement that is on 17th March, 1979. The defendants have stated on oath in the Court that they made these endorsements of this agreement and they are the correct endorsements. Obviously, each defendant signed the agreement to sale and each defendant received the parts of sale consideration on 17th March, 1979 and in all a sum of Rs.11,603/- was given to all the defendants as advance sale consideration by the plaintiffs. Recitals in this agreement in the hands of the individual four defendants (defendants 1 to 4) show that the defendants Shambhu Prasad Singh, Mani Lal Singh, Shanti Lal Singh and Nand Lal Singh took Rs.285/-, 3500/-, 2651/- and 2601/- as part sale consideration from the plaintiffs, the date of the execution of the agreement, Exhibit-3. 21. The learned advocate for the appellants urged that these amounts said to be taken individually in themselves indicate that they were the loan amounts due against the defendants and the plaintiffs got them entered in this deed, Exhibit-3, and this deed really was a note secured by the plaintiffs relating their debts on the defendants. The defendants have admitted in their statements on oath that their endorsements in their pen were correct endorsements. These endorsements show that the defendants received individually cash amount from the plaintiffs on the date of the execution of this agreement deed, Exhibit-3. It has come in evidence that Rekha's marriage was performed by the defendants on 6th March, 1979. The stamp for this agreement, Exhibti-3 was purchased on 6th March, 1979. The defendant Mani Lal Singh (DW 1) would have taken Rs.3,500/- by way of advance sale consideration from the plaintiffs on 17th March, 1979 to clear the bills of the marriage of Rekha. The defendants Shanti Lal and Shambhu Lal Singh (oWs. 2 and 4) have stated that they signed Exhibit-3 after writing the note on it where the revenue tickets were affixed. 22. The defendants Shanti Lal and Shambhu Lal Singh (oWs. 2 and 4) have stated that they signed Exhibit-3 after writing the note on it where the revenue tickets were affixed. 22. Puran Singh (PW3), a witness to this deed, Exhibit-3 has stated on oath that the defendants agreed to sell their house for Rs.35,000/- and the deed of agreement was written and it was read over and explained to the defendants who put their signatures on this Exhibit-3 taking all the advance sale Consideration of Rs.11,603/- from the plaintiffs. This witness stated that in his presence, this deed, Exhibit-3 was written and it was read over to the defendants and the four defendants took the advance sale consideration from the plaintiffs and they made the endorsements on Exhibit-3 in his presence and he also signed on it as a witness. There is nothing to discredit the testimony of PW3. The other witness to the deed is Rajendra Singh son of defendant No.1. Rajendra Singh has not entered to witness box. Thus, it is proved that there was the agreement for sale of this house by defendants 1 the 4 sons of late Ram Narayan Lal, and the defendants 1 to 4 executed the agreement for sale on 17th March, 1979 incorporating the terms of the agreement and the defendants 1 to 4 also received a part of the sale consideration amounting to Rs.11,603/-. The defendants had failed to prove that this deed, Exhibit-3 was obtained by undue influence and fraud. 23. There is the specific recital in Exhibit-3 executed by defendants 1 to 4 that they were selling this house as they were needing money for the marriages of their daughters and sons. These marriages are the legal necessity for the Hindu family. This recital in itself is the evidence disclosing the element of legal necessity. 24. The defendant Manilal Singh (DW 1) has stated that he married one daughter Rekha on 6th March, 1979, and the other unmarried daughter is twenty three or twenty four years of age. This witness stated further that the two daughters and the son of his brother Shambhu Lal Singh are unmarried. Further, he stated that the sons of his brothers Shanti Lal and Ram Lal were unmarried. This witness stated further that the two daughters and the son of his brother Shambhu Lal Singh are unmarried. Further, he stated that the sons of his brothers Shanti Lal and Ram Lal were unmarried. This statement of Manilal Singh (DW 1) also confirms that the defendant's family was needing money raising the same by the sale of the house to marry the daughters and sons. 25. These defendants 1 to 4 as managers of their branches were competent to enter into the agreement of sale and are competent to execute the deed of the sale in respect of this house property in favour of the plaintiffs-respondents. 26. There are the allegations in the plaint that the plaintiffs had been and are ready and willing to perform their part of the contract. The plaintiff Sri Krishna Sharma (PW.2) stated on oath that the plaintiffs had been always ready and willing to perform their part of the contract, and they are ready and willing to perform their part of the contract. The notice sent by the plaintiffs, Exhibit-2 which was also served personally on defendants 2 and 3 had also the recitals that the plaintiffs were ready and willing to perform their part of the contract. 27. It is proved that the plaintiffs-respondents had always been and are ready and willing to perform their part of the contract. In this case the plaintiff respondents carry business for their livelihood as tenant in part of the property in suit. 28. Accordingly, this appeal has no force. The appeal is dismissed with costs.