Heirs of Khant Lakhman Khoda v. K. H. Luhar — 1999 DIGILAW 486 (GUJ)

JUDGMENT : K.R. Vyas, J. The appellants are the heirs and legal representatives of deceased Khant Laxman Khoda who are brought on record on the demise of Khant Laxman Khoda during the pendency of the appeal. The appellant deceased-defendant had preferred an appeal challenging the judgment and order passed in Special Civil Suit No. 48 of 1976 dated 30.8.1980 by the learned Civil Judge, Senior Division, Junagadh, allowing the suit for specific performance of contract for sale in favour of the respondents-plaintiffs. The learned trial Judge was pleased to direct the plaintiffs to recover the suit property from the possession of the defendant and the defendant was directed to execute the document of sale in respect of the suit property in favour of the plaintiffs at their costs. The defendant was directed to pay the costs of the suit to the plaintiffs. 2. The plaintiffs filed the said suit for specific performance of contract for sale and damages. It is the case of the plaintiffs that the deceased-defendant was the owner of the house bearing Sanad No. 41/90 of the area of 670-3-0 "Gaj" situated in Keshod. As per the say of the plaintiffs, the defendant executed contract of sale in their favour on 12.2.1975 for consideration of Rs. 28000/-. According to the plaintiffs, the contract of sale was registered and the amount of Rs. 28000/- was paid to the defendant. It is the further case of the plaintiffs that the defendant had mortgaged the suit property with one Popatlal Pragji of Keshod under a document of agreement of sale. The defendant got released the said property by payment of the mortgage money from the amount he had realised from the plaintiffs.Since the defendant had been paid the entire amount of consideration, a registered document of sale was to be executed on that very day. However, the defendant desired to find out suitable accommodation for his residence. It was, therefore, agreed that the defendant should hand over the possession of the house on Magsar Sudi Bij of S.Y.2032 and should execute the document of sale. The plaintiffs averred that the defendant had entered into a contract of sale of the suit house for his family necessities and also to pay his debts. It was, therefore, agreed that the defendant should hand over the possession of the house on Magsar Sudi Bij of S.Y.2032 and should execute the document of sale. The plaintiffs averred that the defendant had entered into a contract of sale of the suit house for his family necessities and also to pay his debts. It is the further case of the plaintiffs that as per the terms and conditions stipulated in the contract of sale, the plaintiffs informed the defendant to hand over the possession. However, the defendant failed to secure accommodation elsewhere and so he asked for the time of one month. It was, therefore, that the time for execution of the document for sale was extended till Posh Sudi Bij of S.Y.2032. It was further the case of the plaintiffs that on the aforesaid date, the defendant asked for further time of one week. However, at that time, the plaintiffs asked him to give a writing and accordingly, the defendant executed a writing on 3.1.1976. It is the further case of the plaintiffs that since the defendant had shown readiness and willingness to execute the document of sale, the plaintiffs purchased stamp of the amount of Rs. 2450/- on 15.1.1976 and got the document prepared. However, the defendant intentionally did not remain present for the execution of the document of sale. The plaintiffs served a notice dated 24.2.1976 through their advocate upon the defendant calling upon him to execute the document of sale and to hand over the possession. According to the plaintiffs, the defendant gave an evasive reply to the said notice and refused to execute the document of sale. The plaintiffs, therefore, instituted a suit to enforce the specific performance of contract for sale. According to the plaintiffs, they are entitled to enjoy the possession of the suit property after Magsar Sudi Bij of S.Y.2032 and, therefore, the plaintiffs claimed damages of Rs. 900/- for three months at the rate of Rs. 300/- per month. The plaintiffs also claimed Rs. 300/- per month from the date of the suit till they get possession of the property. It appears that by amending the plaint, the plaintiffs, in the alternative, prayed that they should be paid Rs. 28000/- with interest thereon at the rate of 12% p.a. from the date of the execution of contract of sale. 3. 300/- per month from the date of the suit till they get possession of the property. It appears that by amending the plaint, the plaintiffs, in the alternative, prayed that they should be paid Rs. 28000/- with interest thereon at the rate of 12% p.a. from the date of the execution of contract of sale. 3. The deceased-defendant resisted the suit by filing a written statement Ex. 22. According to the defendant, the suit property was having a market value of Rs. 1,25,000/- when the suit was filed which was of his ownership and possession. According to him, he was an illiterate and the plaintiffs had loaned him only a nominal amount and had added interest of Rs. 8000/- in the principal amount. According to the defendant, it was a transaction of money lending and without having read out the document and explained to him, his thumb mark was taken on the document. He further stated that the plaintiffs had got it done through their agent and associates and on their own accord, got it registered. However, it was not a contract of sale, but it was a pure money lending transaction. He further stated that in that transaction, the plaintiffs had paid Rs. 16000/- plus Rs. 4000/-. He further stated that in the figure of Rs. 20000/-, plaintiffs added an amount of Rs. 8000/- towards the interest amount and got the document executed through a fraud. The defendant denied that the plaintiffs paid the encumbrance of Popatlal Pragji and got the contract of sale executed. The defendant further denied that he had taken full or any amount of consideration and the fact that the possession was to be handed at that moment and that he had to arrange for accommodation and so he had agreed to execute the document and to hand over possession on Magsar Sudi Bij of S.Y. 2032. It is the case of the defendant that the plaintiffs intended to secure the amount of loan and it was, therefore, that they had taken the Sanad of the property from him and had kept in their possession. In substance, the defendant denied to have entered into any contract of sale of the property for Rs. 28000/- for his legal necessities. 4. In substance, the defendant denied to have entered into any contract of sale of the property for Rs. 28000/- for his legal necessities. 4. The learned trial Judge, after appreciating the oral as well as documentary evidence on record, held that the plaintiffs proved that the defendant executed Satakhat on 12.2.1975 for the purchase of the suit house for Rs. 28000/- and that the defendant executed writing on 3.1.1976 for handing over possession of the suit house on S.Y. 2032 and that the plaintiffs were ready and willing to execute the terms and conditions of the Satakhat. The learned Judge also recorded the finding that the defendant has committed breach of terms and conditions of Satakhat and had prolonged the execution of the sale deed. The learned Judge negatived the contention of the defendant that the plaintiffs are doing money lending business and had advanced Rs. 16000/- plus Rs. 4000/- to the defendant. 5. In view of the aforesaid findings, the suit of the plaintiffs was allowed. It is that judgment and order which is challenged by way of this appeal. 6. Mr.R.M.Chhaya, the learned advocate for the appellants, after having taken me through the oral as well as documentary evidence, submitted that the agreement to sale dated 21.2.1976 was not a simple outright sale of the property, but it was a money lending transaction. Mr.Chhaya pointed out certain circumstances in order to substantiate his say that the transaction in question was a money lending transaction and since the respondents were not having valid licence, the transaction in question shall be hit by the provisions of Bombay Money Lending Act, 1946. Mr.Chhaya pointed out that even though under the agreement, payment of full consideration was made, admittedly the possession of the house was not given to the respondents. On the contrary, one year time was given to execute the sale deed. Mr.Chhaya further pointed out that the recital of the document of reconveyance Ex. 51, in favour of the appellant executed by Popatlal Pragjibhai for Rs. 12000/- clearly suggests that it was a loan amount of Rs. 12000/-. The said document was attested by the respondent Khushaldas and broker Kanaiyalal. Not only that, the agreement of sale Ex. 52 was also registered on the same day and that document was attested by Popatlal Pragjibhai and the broker Kanaiyalal. 12000/- clearly suggests that it was a loan amount of Rs. 12000/-. The said document was attested by the respondent Khushaldas and broker Kanaiyalal. Not only that, the agreement of sale Ex. 52 was also registered on the same day and that document was attested by Popatlal Pragjibhai and the broker Kanaiyalal. Mr.Chhaya, therefore, submitted that the execution of two documents simultaneously would definitely raise a doubt about the genuineness of the outright sale of the property. 7. My attention has been invited by Mr.Chhaya to document Ex.53 dated 3.1.1976 whereby further extension of time was given to the appellant to retain the possession for one month. Even that document is also attested by the broker Kanaiyalal and one Ranchhodbhai. In the submission of Mr.Chhayya, since Kanaiyalal was the common party, having attested the first document between the appellant on one hand and Popatlal Pragjibhai on the other, his attestation below Ex.83 would certainly raise suspicion about the genuineness of the same. 8. It is true that Ex.51 is a document of reconveyance executed in favour of the appellant by Popatbhai Pragjibhai and Ex.52 is a document of sale between the appellant and the respondents executed on the same day i.e. on 12.2.1975. It is undoubtedly true that Kanaiyalal, the broker has attested both the documents. It is also not in dispute that the appellant, even though received full amount of consideration, did not hand over the possession of the suit house to the respondents and on the contrary, sought further extension. These facts by themselves, in my opinion, will not be sufficient to brand the respondents as money lenders and to declare the entire transaction between the parties as null and void on the ground that the same is hit by the provisions of Bombay Money Lending Act, 1946. It is the case of the appellant in his written statement that the respondents have taken undue advantage of his illiteracy and poor economic condition by advancing him Rs. 16000/- plus Rs. 4000/- and that by addition of Rs. 8000/- by way of interest in the banakhat executed by him. In order to find out the substance, if any, in the said submission, let us see the evidence of the parties. 9. According to the evidence of respondent no.1 Khushaldas Hansraj, Ex. 16000/- plus Rs. 4000/- and that by addition of Rs. 8000/- by way of interest in the banakhat executed by him. In order to find out the substance, if any, in the said submission, let us see the evidence of the parties. 9. According to the evidence of respondent no.1 Khushaldas Hansraj, Ex. 41, the plaintiffs were in need of a house and so the broker Kanaiyalal brought the appellant to the plaintiffs and he informed that he had mortgaged his house with Popatlal Pragjibhai and that he intends to dispose of the house. The appellant had to pay the debts of Popatlal Pragjibhai and, therefore, he told the respondents that he was ready and willing to dispose of the house for Rs. 30,000/-. The respondents offered Rs. 22000/-, but ultimately it was agreed that it should be sold for Rs. 28000/-. He has further deposed that the appellant purchased the stamps and Shivlalbhai, the Petition Writer drafted the writing. He has further stated that at that time, Kanaiyalal, broker and Popatbhai Pragjibhai were also present and the appellant executed document by putting his thumb mark on the said document. Kanaiyalal and Popatbhai Pragjibhai, both attested the said document. He has further deposed that when the said banakhat was attested, he paid Rs. 28000/- i.e. the full amount of consideration to the appellant. He has further deposed that out of the said amount, the appellant paid Rs. 12000/- to Popatlal Pragjibhai and that Popatlal Pragjibhai returned back the appellant all the papers and the documents pertaining to the house. According to him, this banakhat was also got registered at the Office of the Sub-Registrar. He has further deposed that as the appellant did not have any other house and as he wanted to construct the house in the wadi, he agreed that the appellant should hand over the possession to him on Magsar Sudi Bij and execute the document of sale. Again at the request of the appellant, the respondents agreed to extend the time and for that, the appellant had given a writing which was also drafted by the Scribe Shivlalbhai vide Ex. 53. Again at the request of the appellant, the respondents agreed to extend the time and for that, the appellant had given a writing which was also drafted by the Scribe Shivlalbhai vide Ex. 53. He has further deposed that before the stipulated date i.e. Posh Sudi Bij, the appellant went to his house and expressed his willingness to execute the deed and so he (respondent Khushaldas) himself and the appellant went to the office of Shivlal and as per the say of the appellant, stamp paper of the amount of Rs. 2450/- was purchased by Shivlal on behalf of the respondents. According to the respondents, Shivlal prepared the draft as per the instructions of the appellant. He has further deposed that thereafter the appellant went to his house. However, he did not come to execute the document even though he waited for about two to three hours. Not only that, on the next day, at about 11.00 a.m., he again went to the house of the appellant and he was informed by the appellant that they will go to the office of the Registrar and that he (appellant) will follow them. However, the appellant did not go to the office of the Sub- Registrar. Ultimately, he served a notice through his advocate vide Ex. 42 to the appellant. It is also clear from his evidence that at the time of his deposition, the prevalent market rate of the house in question was around Rs. 28000/-. There is no dispute about the fact that the house in question is a kutcha built house consisting of two rooms, having the roof covered by country tiles. It is also clear during the evidence of the respondent Khushaldas that he is merely a blacksmith and not doing the business of money lending. Not only that, he had disposed of his own plot for Rs. 16000/- two to three months before the Banakhat and, therefore, he was having the amount on hand and he could pay Rs. 28000/- to the appellant. 10. The evidence of respondent Khushaldas gets corroboration from the evidence of Shivlal Vrajlal, Ex. 50. He has clearly stated in his evidence that it was agreed that the house was sold for Rs. 28000/-. This witness himself had written down the Banakhat as per the instructions given to him. He has deposed that in his presence, the respondent Khushaldas paid Rs. 50. He has clearly stated in his evidence that it was agreed that the house was sold for Rs. 28000/-. This witness himself had written down the Banakhat as per the instructions given to him. He has deposed that in his presence, the respondent Khushaldas paid Rs. 28000/- to the appellant and from that amount, the appellant paid Rs. 12000/- and odd to Popatbhai. According to him, the document of Popatbhai was of conditional sale and so, Popatbhai having himself accepted the amount of Rs. 12000/-, re-conveyed the property by document of resale in favour of the respondents. That document was also drafted by this witness. This document of reconveyance Ex. 51 executed by Popatlal and attested by Kanaiyalal and the respondent herein is dated 12.2.1975 and the agreement of sale Ex. 52 which is also dated 12.2.1975 is executed by the appellant on the same day. According to this witness Shivlal, agreement of sale Ex. 52 was registered at the Office of the Sub Registrar and he identified the thumb impression of the appellant before the Registrar. He specifically stated that an amount of Rs. 28000/- was paid in his presence to the appellant. He has further deposed that the registered document of sale was to be executed on Magsar Sudi Bij (2nd day of Magsar), but none turned up on that day. According to this witness, the respondents thereafter contacted him and sought his advice. Accordingly, he had drafted the document Ex. 53 extending the time for execution of agreement of sale. That document is dated 3.1.1976. This witness has specifically stated that the appellant had put his thumb mark and Kanaiylal had identified in his presence. He has also deposed that after that event, the parties approached him and that the respondent Khushaldas purchased a stamp of Rs. 2450/-. This witness accompanied Khushaldas to treasury to purchase the stamps on his behalf. The stamps were purchased for execution of document of sale. He has deposed that he first prepared the draft of sale deed on the instructions of the appellant and got it typed. The photostat copy of the document is produced at mark 43/3. According to him, the appellant had refused to execute the original sale deed on the ground that he was not in a position to vacate the suit house. It was, therefore, that he handed over the original stamp to the respondents. The photostat copy of the document is produced at mark 43/3. According to him, the appellant had refused to execute the original sale deed on the ground that he was not in a position to vacate the suit house. It was, therefore, that he handed over the original stamp to the respondents. He has deposed that two to three months after that event, the respondents approached him to get the application drafted for getting the refund of the stamp amount of Rs. 2450/-. This witness has been cross examined at length. However, nothing substantial has come out from his evidence. Having gone through the evidence of this witness, I am of the view that he is an independent witness and there is no reason to disbelieve his evidence. 11. Kanaiyalal Narandas, Ex. 55, broker is also examined in this case by the respondents. He has specifically stated in his evidence that the appellant had talked to him that he intended to dispose of his property for Rs. 30,000/- as he wanted to pay up the debts of Popatbhai. He, therefore, acted as a middleman and talked to the respondents who were interested in purchasing the house if available on the road. He has deposed that the respondents offered Rs. 20,000/- to Rs. 25000/- to the appellant. However, ultimately it was agreed that the appellant would sell his house for Rs. 28000/-. According to him, it was agreed that the possession be handed over on Magsar Sudi Bij. However, the amount of Rs. 28000/- was paid on 12.2.1975. Out of that amount, the appellant paid Rs. 12000/- to Popatlal. Popatlal executed a document of reconveyance and the appellant and respondents executed an agreement of sale in favour of the respondents on the same day. He identified the thumb impression of the appellant. He has also corroborated the same from Shivlal and the respondents that extension of one month time was given to the appellant and thereafter also, further time of eight days was given to him. He has stated that the document was executed in his presence. Merely because this witness is a broker, his evidence cannot be doubted. He and witness Shivlal proved the documents at Ex. 50, 51 and 52. These are the documents duly registered and have not been disputed by the appellant. He has stated that the document was executed in his presence. Merely because this witness is a broker, his evidence cannot be doubted. He and witness Shivlal proved the documents at Ex. 50, 51 and 52. These are the documents duly registered and have not been disputed by the appellant. Merely because the payment of full consideration was made without getting the possession of the house and that one year time was given to the appellant to execute the sale deed and thereafter a further extension of one month was given, these facts by themselves will not nullify the transaction entered into by the parties. In any case, the transaction cannot be doubted by treating it as a money lending transaction. Even though the appellant executed the transaction, he has taken the stand in the written statement that the respondents have taken undue advantage of his illiteracy and poor economic condition. He has contended that the respondents had advanced Rs. 16000/- plus Rs. 4000/- to him and added Rs. 8000/- by way of interest in the agreement of sale executed, but it was a transaction of loan and, therefore, the respondents are not entitled to specific performance of sale. It is to be noted that in the written statement, no where he has specifically pleaded that he had paid Rs. 11000/- at the first instance. He has also not mentioned the date on which the transaction had taken place and at what rate of interest the amount was paid to him. According to his version in the evidence, he had taken the amount of Rs. 10000/- on interest from one Popat Pragji and he was required to repay the amount of Rs. 12000/- inclusive of interest. He, therefore, handed over the documents to Kanaiyalal who got the amount paid to him. He has deposed that he was to give his sanad to the respondents on payment of Rs. 28000/- to him. According to him, it was agreed that this amount was to be repaid within one year i.e. Magsar Sudi Bij inclusive of Rs. 8000/- towards interest and so he had to pay Rs. 28000/-. According to him, when Shivlal prepared the writing, nothing was paid to him and that the Banakhat was not read over. According to him, even though he went to the Office of the Sub- Registrar where he signed, but nothing was read over to him. 8000/- towards interest and so he had to pay Rs. 28000/-. According to him, when Shivlal prepared the writing, nothing was paid to him and that the Banakhat was not read over. According to him, even though he went to the Office of the Sub- Registrar where he signed, but nothing was read over to him. He has deposed that thereafter all went to the house of Popatlal and Popatlal handed over all the documents pertaining to his house to Kanaiyalal and that he had paid nothing at that time. He has further deposed that he failed to pay the amount by Magsar Sudi Bij and, therefore, he asked for some more time. He has denied that he executed the agreement of sale for Rs. 28000/-. He has deposed that in his area, the market value per sq. yd. was Rs. 150/- and his property was worth more than Rs. One lac. Having gone through the evidence of the appellant, it is clear that his evidence is not consistent with his statement. Even though in his evidence he has stated that he (appellant) paid Rs. 12000/- to Popat Pragji and that he was paid Rs. 11000/-, meaning thereby that in all Rs. 23000/- were paid; however, in the written statement, he has stated that an amount of Rs. 16000/- plus Rs. 4000/- was paid as a loan. There, he does not say as to what amount was paid to Popat Pragji towards his debt. Thus, the evidence of the appellant is not consistent with his statement. He has admitted the fact that the entire deal was made through Kanaiyalal, the broker and that he had no enmity with Kanaiylal. Therefore, there is no reason for Kanaiyalal to give false evidence against him. The fact that the appellant is disputing the execution of document Ex. 51 between him and Popatlal, it goes to show that the appellant has no regards for truth. Surprisingly, the appellant in his cross examination, has stated that before the execution of the agreement of sale, he got total amount of Rs. 22000/- from the respondent in piecemeal. He has narrated that first, the respondents paid Rs. 12000/- at the house of Popatlal. He has further deposed that two to three days thereafter, again the respondents paid a sum of Rs. 4000/- and 15 to 20 days thereafter, again another sum of Rs. 4000/- was paid. 22000/- from the respondent in piecemeal. He has narrated that first, the respondents paid Rs. 12000/- at the house of Popatlal. He has further deposed that two to three days thereafter, again the respondents paid a sum of Rs. 4000/- and 15 to 20 days thereafter, again another sum of Rs. 4000/- was paid. Now, this version is completely contradictory to his own written statement and his oral evidence. I am not prepared to believe that he would execute the agreement of sale without being paid any amount whatsoever. He has specifically stated in the cross examination that the respondents had never paid Rs. 16000/- at a time. However, his case in the written statement is to the effect that he has been paid Rs. 16000/- by the respondents. Thus, it is not possible for me to accept the evidence of the appellant on its face value. Needless to say, the respondents have established the execution of document of sale Ex. 52 and the document Ex. 53 whereby the period was extended by the parties. The evidence of the respondent no.1 is duly corroborated by the evidence of Shivlal Vrajlal and Kanaiyalal who are independent witnesses and having no axe to grind against the appellant. Therefore, there is no reason to disbelieve their version. Admittedly, the respondents had no other dealing except the suit deal with the appellant and it has also come out in the evidence that for the purpose of purchasing the suit house, the respondents in fact sold their own piece of land and procured the amount. In a catena of decisions, it has been laid down that before a person can be considered money lender under the Act, it is necessary that he advances money to a person as a matter of regular business i.e. he derives appreciable part of his income from this source. From the few instances, it could not be inferred that the respondents carried on money lending business. In the case of Gajanan v. Seth Brindaban, AIR 1970 SC 2007 , Their Lordships have held that a money lender is one who in his regular course of business advances loan and excludes isolated transactions of money lending. Thus, on the circumstances pointed out by Mr. Chhaya for the appellant, it is difficult to infer that the respondents are money lenders and the transaction in question is a money lending transaction. 12. Thus, on the circumstances pointed out by Mr. Chhaya for the appellant, it is difficult to infer that the respondents are money lenders and the transaction in question is a money lending transaction. 12. In my opinion, the learned trial Judge was perfectly justified in allowing the suit. The net result of the above discussion is that the parties have entered into an agreement of sale of the suit house and that the appellant has committed breach by not executing the sale deed even though he had received full amount of consideration i.e. Rs. 28000/- on 12.2.1975. In these circumstances, the respondents are entitled to get the decree of specific performance. 13. Mr.Chhaya, learned advocate for the appellant, however, submitted that the document of agreement of sale was executed by deceased Laxman Khodabhai during his life time and the decree of specific performance is confirmed after so many years which would result in hardships to the appellants who are the heirs of the deceased Laxman Khodabhai. Reliance was placed on the decision of the Supreme Court in the case of Anjan Anjaneyulu v. D. Venkata Seshaiah, AIR 1987 SC 1641 . The Supreme Court, considering the peculiar facts and circumstances of the case and more particularly special hardships to vendor instead of passing the decree for specific performance, directed the vendor to pay the present value of the disputed land instead of executing the sale deed in vendee's favour. Applying this decision of the Supreme Court in the instant case, I feel that the case of the appellant requires consideration. In view of the finding recorded by me that the deceased already received an amount of Rs. 28000/- from the respondents way back on 12.2.1975 and retained the said amount with him for all these years, the appellants who are the heirs of the deceased are bound to return the said amount with 12% interest from 12.2.1975 till the amount is realised. If the appellants pay the said amount to the respondents within ten weeks time, in that event, they will not be held liable to execute the sale deed in favour of the respondents. On failure to pay the said amount within the time stipulated, the respondents will be entitled to get the decree for specific performance executed in their favour. 14. In the result, this appeal is partly allowed. On failure to pay the said amount within the time stipulated, the respondents will be entitled to get the decree for specific performance executed in their favour. 14. In the result, this appeal is partly allowed. The judgment and decree passed by the learned Civil Judge, Senior Division, Junagadh, dated 30.8.1980 is modified as under:- The appellants shall pay to the respondents Rs. 28000/- with 12% interest per annum from 12.2.1975 till the amount is realised within ten weeks from today. If the amount is paid accordingly, in that event, the appellants will not execute the document of sale in respect of the suit property in favour of the respondents-plaintiffs. On failure to pay the amount aforesaid, the respondents shall be entitled to get executed the document of sale in respect of the suit property in their favour from the appellants. The appellants shall pay the costs of this appeal to the respondents. Appeal partly allowed.