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2000 DIGILAW 352 (RAJ)

Harnek Singh v. Surjeet Kaur

2000-03-14

RAJESH BALIA

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Judgment Rajesh Balia, J.-This appeal is directed against the Judgment and decree dated 27-2-1981 passed by the learned District Judge. Sri Ganganagar whereby the learned District Judge has dismissed the suit filed by the plaintiff-appellant. 2. The brief facts leading to this appeal are : that plaintiff-Harneksingh filed a suit against defendants-Punjab Kaur widow of Baggasingh and mother of Mewasingh, Balwant Kaur widow of Mewasingh and Jugrajsingh son of Mewasingh, who was minor aged about 10 years, for specific performance of the agreement to sell of the land measuring 4 bighas and 18 biswas situated in Chak No. 3A, Tehsil Sri Ganganagar District Sri Ganganagar for a sum of Rs. 13000/ - executed by Mewasingh (since deceased) on 11-4-1974. Defendant-Punjabkaur was the mother and defendant-Balwant Kaur was the widow of deceased-Mewasingh and Jugrajsingh is the son of deceased executant of the agreement to sell. Defendants-Punjabkaur and Balwant Kaur died during the pendency of the suit and their legal representatives were brought on record. 3. It hasbeen averred in the plaint that agreement to sell was executed on 11-4-1972 by deceased-Mewasingh in favour of plaintiff-Hameksingh whereby the land in question was agreed to be sold to plaintiff-Hameksingh Rs. 2600/-per bigha. It was also averred that Mewasingh was indebted by Rs. 3000/-under a pro-note and was further indebted by Rs. 3,000/-under a mortgage. The aforesaid amount of Rupees 6000/-was adjusted against the sale consideration of the land in question and Rupees 5500/-were paid in advance and a sum of Rs. 1500/-remained due to be paid at the time of registry. The possession of the land was also lying with the plaintiff , which was acknowledged to be delivered to the plaintiff under the agreement. The executant of the agreement to sell viz., Shri Mewaram died on 31-8-1974. The sale deed was to be got registered in pursuance of that agreement by 11-4-1975 but Mewasingh died before 11-4-1975 i.e. on 31-8-1974. It was further alleged that the plaintiff was always ready and willing to perform his part of the contract viz., to make payment of Rs. 1500/-and further to get the sale deed executed and registered in his favour. A notice to that effect was also given on 1-11-1974 and 22-5-1975 but the defendants have not responded in these circumstances, the plaintiff has prayed for a decree for specific performance of the agreement to sell dated 11-4-1974. 1500/-and further to get the sale deed executed and registered in his favour. A notice to that effect was also given on 1-11-1974 and 22-5-1975 but the defendants have not responded in these circumstances, the plaintiff has prayed for a decree for specific performance of the agreement to sell dated 11-4-1974. The suit has been filed on 18-8-1975. 4. Thedefendants in their written statement denied any such agreement to sell. They also denied even receipt of any loan whether under pro-note or through mortgage. The receipt of advance money in addition to the adjustment of Rs. 6,000/-was also denied. It was pleaded that Mewasingh was a habitual drunkard and used to drink liquor along with the plaintiff and if any documents have been got executed by Mewasingh under his drunken state by the plaintiff , the defendants are not bound by them. It was also pleaded that the land in question was an ancestral property owned by grandfather of Mewasingh and he was not the sole owner of the property. Defendant No. 3 Jugrajsingh was a co-parcener. There was no legal necessity for Mewasingh to alienate the property. The possession of the plaintiff over the land in question was admitted but it was alleged that the plaintiff was in possession of the impugned land as it was given to him for cultivation on contract basis but he was not possessing this land as its purchaser. It was also alleged that market price of the land in question was Rs. 4000/-per bigha and not Rs. 2600/-per bigha. 5. It was also alleged that market price of the land in question was Rs. 4000/-per bigha and not Rs. 2600/-per bigha. 5. On the basis of the above pleadings of the parties, the learned trial Court framed as many as six issues, which are as follows g us vkjkth ua- 26@4111 ¼3½ gky 19 pd 3 , cMk dk lkS1&Dk rkjh[k 11-04-1974 dks esokflank cS; eqnbZ ds lkFk djds 11500@& #i;s lkbZ isVs fteu ua- 1 nkok vuqlkj olwy djds bdjkj ukek cS; cgd eqnbZ j lkSnk cS; dh vkkargjhj o rdehy djk;k vkSd iwfrZ esa dCtk eqnbZ dk tks igys ls fn;k gqok Fkk Lohdkj fd;kA - - - - -ih dj vius gd es 2-D;k eqnbZ cdk;k 1500@& #i;s nsa c;ukek vkjkth eqrnkfo;k djkus dk rS;kj jgk gSA vkSj vHk Hkh rS;kj gSaA ih - - - - - 3-D;k vkjkth eqrnkfo;k esokflag ds nknk dh cukbZ gqbZ tnhtk;nkn gSaA ftldk c;ukekfcyk t;jr tk;t esokflag cS; djus dk lkSnk ugha dj ldrk Fkk vkSj bdk nkok ij D;k vlj gSaA - - - - - -Mh 4- D;k eqnbZ rdehyeqvk;nk dh fMxzh dk gdnkj gSaA 5-D;k eqnbZ us iapk;r ds lkeus vkjkth eqrnkfo;k Bsdk ij ysuk ekuk FkkA vkSj bldk nkok ij D;k vlj gSaA 6- nknjlhA Mh - - - - - 6. Upon appreciation of evidence, the learned trial Court found that execution of agreement to sell dated 11-4-1972 by Mewasingh is duly proved and that a sum of Rs. 11,500/-has been received by Mewasingh as alleged in the plaint and possession of the impugned land was with the plaintiff . Issue No. 2 was also decided in favour of the plaintiff . Issue No. 3 was decided in favour of the defendants holding that the Impugned property was ancestral one and in that property, Mewasingh was only a coparcener and Karta of the Joint Hindu Family but there was no legal necessity to alienate the property. Issue No. 5 was deleted. Issue No. 3 was decided in favour of the defendants holding that the Impugned property was ancestral one and in that property, Mewasingh was only a coparcener and Karta of the Joint Hindu Family but there was no legal necessity to alienate the property. Issue No. 5 was deleted. However, the learned trial Court was of the opinion that relief of specific performance of the agreement to sell is a equitable relief and the Court of equity is not bound to grant a decree for specific performance of the agreement to sell even though the agreement to sell is proved and the plaintiff is ready and willing to perform his part of the agreement and, therefore, the Court is expected to take into consideration the surrounding circumstances of the transaction itself to decide whether a decree for specific performance should be passed or hot? Keeping in view the above principle, the learned trial Court found that in totality of the circumstances, it will not be just and equitable to decree the suit in favour of the plaintiff . The impugned property was held to be ancestral one and it was also found that for its alienation, there was no legal necessity. It was also held that deceased-Mewasingh was a drunkard and this small piece of agricultural land is the only source of the livelihood of the defendants, who are widowed mother, wife and minor son of deceased-Mewasingh. 7. I have heard Mr. R.K. Singhal, the learned Counsel for the plaintiff-appellant and Mr. Section G. Ojha, the learned Counsel for the defendants-respondents and have carefully gone through the record of the case. 8. It is well settled principle of law that a decree for specific performance of the agreement to sell the immoveable property cannot be claimed as a matter of right. Jurisdiction to decree specific performance under Section 20 of the Specific Relief Act, 1963 (for short ‘the Act’) is discretionary and not mandatory and the Court is not bound to grant such relief merely because it is lawful to do so. Jurisdiction to decree specific performance under Section 20 of the Specific Relief Act, 1963 (for short ‘the Act’) is discretionary and not mandatory and the Court is not bound to grant such relief merely because it is lawful to do so. Section 20 of the Act specifically provides that the Jurisdiction to decree specific performance is discretionary and the Court is not bound to grant such relief merely because it is lawful to do so but the discretion of the Court is not arbitrary but sound and reasonable, guided by judicial principles and capable of examined by a Court of appeal. Sub-Section (2) of Section 20 of the Act further provides instances in which the Court may properly exercise discretion not to decree specific performance (a) where the terms of the contract or the conduct of the parties at the time of entering into the contract or the other circumstances under which the contract was entered into are such that the contract, though not void-able, gives the plaintiff an unfair advantage, over the defendant, or (b) where the performance of the contract would involve some hardship on the defendant which he did not foresee, whereas its non-performance would involve no such hardship on the plaintiff (c) wherethe defendant entered into the contract under circumstances which though not rendering the contract void-able, make it inequitable to enforce specific performance. 9. It is true that merely Inadequacy of consideration, or the mere fact that the contract is onerous to the defendant or imprudent in its nature, shall not be deemed to constitute an unfair advantage within the meaning of Clause (a) or hardship within the meaning of Clause (b) of Section 20 of the Act but independent of inadequacy of consideration or onerous nature of the contract qua the defendant or imprudent nature of the contract, if the circumstances are so that where the plaintiff can be said to be in a position to exert undue influence over the defendant and the circumstances further go to show that granting of decree for specific performance of the agreement to sell could cause hardship to the defendants apart from inadequacy of the consideration, the decree for specific performance can be denied by the Court in exercise of its discretion and such exercise of discretion has to be taken to be judicious and reasonable. 10. 10. in the present case, the circumstances which emerge from the record, accepting the findings of the learned trial Court about execution of agreement and his readiness and willingness to perform his part of contract to be correct, are that deceased Mewaram was already Indebted to the tune of Rs. 6,000/-to the plaintiff , the impugned property has been held to be an ancestral property and it has also been found that no legal necessity existed for the disposal of the property. It has also been established that deceased Mewaram was a habitual drunkard and was satisfying his habits in the company of the plaintiff The fact that deceased Mewaram was companion of the plaintiff to satisfy his need of drinking puts him in vulnerable position of being influenced by the plaintiff It has also come on record that :he plaintiff was already in possession of the and in question apart from being creditor and mortgagee in respect of Rs. 3,000/-as a contractor for cultivating the land and was only giving a share of the agricultural produce to Mewaram and he continued to remain in possession until the decree dismissing the suit has been passed. It has further been brought to the notice of the Court during the course of hearing that since the dismissal of the suit, the possession of the suit property has been restored to respondent No. In the totality of the circumstances particularly when specific performance of contract in respect of a very small piece of agricultural land is sought to be enforced against the heirs of the deceased Mewaram, two of whom were widowed ladles and one is a minor son. The conclusion drawn by the learned trial Court that it would be inequitable to enforce the specific performance of the contract in the present case appears to be just exercise of discretion vested in it. I am therefore, not inclined to interfere with the Judgment and decree passed by the learned trial Court. 11. in these circumstances, ordinarily the Court would have been inclined to pass a decree for restoring the amount of consideration which has been found to be received by the defendant-respondents in lieu of agreement to sell which in the present case was Rs. 11,500/-(Rs. 6000/-by way of adjustment of outstanding debts and Rs. 5,500/-by way of advance). 11. in these circumstances, ordinarily the Court would have been inclined to pass a decree for restoring the amount of consideration which has been found to be received by the defendant-respondents in lieu of agreement to sell which in the present case was Rs. 11,500/-(Rs. 6000/-by way of adjustment of outstanding debts and Rs. 5,500/-by way of advance). However, it is apparent from the pleadings of the parties that since execution of the agreement to sell to the date of restoring the possession of the property upon dismissal of the suit, the plaintiff has not accounted for any mesne profit earned from the land in question, that it is to say that almost more than 13 years, the plaintiff enjoyed the fruits of the land as of right, in case restoration of part consideration paid is decreed, the plaintiff will be under obligation to submit account of that entire period and restore the balance in excess of Rupees 11,500/-to the defendant. 12. In these circumstances, no useful purpose would be served by passing a decree for restoration of the consideration and for giving accounts to the defendants. It will only further a long litigation to unforeseen length of time. 13. As a result, this appeal has no force and the same is hereby dismissed with no order as to costs.