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2001 DIGILAW 705 (PNJ)

Mohinder Singh v. Harjit Singh

2001-07-18

R.L.ANAND

body2001
JUDGMENT R.L. Anand, J. - This is a litigation between the three real brothers - one on one side and the two on other side. Shri Mohinder Singh appellant filed a suit for possession for specific performance of contract of sale of the land measuring 36 kanals 19 marlas being 1/3rd share of the land as entered win the jamabandi for the year 1970-71, situated in the village Lohat, against his two brothers Harjit Singh and Karam Singh by alleging that the defendant had entered into an agreement of sale on his favour on 27.8.1973 and under the agreement the possession of the land was also given to him. 2. The case set up by the plaintiff Shri Mohinder Singh against his two brothers was that Shri Puran Singh, father of the parties, was the owner of the land measuring 36 kanals 19 marlas situated in village Lohat fully detailed in the head note of the plaint as per jamabandi for the year 1970-71. On 27.8.1973 the defendants represented to the plaintiff that Shri Puran Singh had executed a will in favour of the defendants on 7.7.1968. The defendants entered into an agreement with the plaintiff to sell the land measuring 12 kanals 6 marlas i.e. 1/3rd share of the total land measuring 36 kanals 19 marks as entered in the Jamabandi for the year 1970-71 for a sum of Rs. 5000/-. It was also agreed between the parties that the defendants will execute the sale deed in respect of the land in dispute within one month from the date of the sanctioning of the mutation of inheritance to the estate of Puran Singh in accordance with the will dated 7.7.1968. It was also agreed that the registration expenses shall be borne by the plaintiff. Also it was agreed between the plaintiff and the defendants that if the defendants did not execute the sale in favour of the Plaintiff, they shall be liable to pay Rs. 5000/- which was received by them as earnest money and in addition to that they shall pay Rs. 5000/- as damages. The total sale consideration of the land was also Rs. 5000/-. According to the plaintiff, he is peaceful possession of the suit land since 27.8.1973 under the agreement. 5000/- which was received by them as earnest money and in addition to that they shall pay Rs. 5000/- as damages. The total sale consideration of the land was also Rs. 5000/-. According to the plaintiff, he is peaceful possession of the suit land since 27.8.1973 under the agreement. The mutation of inheritance in respect of the estate of Puran Singh has been sanctioned by the Assistant Collector Ist Grade, Garhshankar on 1.6.1976 in accordance with the will dated 7.7.1968. The defendants are shrewed persons and have backed out from the agreement. The time stipulated in the agreement has since expired. Earlier the plaintiff filed a suit for injunction, which was dismissed as withdrawn. Now, he has filed the suit for possession by way of specific performance. It was also pleaded by the plaintiff that he served a legal notice upon the respondents 8.6.1976. He even gave a telegram on 29.6.1976 to the defendants for execution of the sale deed, but the defendants did not reach in the office of the Sub Registrar. The plaintiff was always ready and willing to perform his part of the agreement. Defendants have refused to execute the sale deed. Hence the suit. 3. The suit was contested by the defendants and they took the stand that it was within the knowledge of the plaintiff that their father Puran Singh had made will in their favour and there was no occasion for the defendants to make any representation to the plaintiff of the factum of the Will. They never entered into an agreement with the plaintiff for Rs. 5000/- nor they executed any agreement and, in fact, nothing was paid to them. The plaintiff being the eldest brother had a dominating effect upon the defendants. Defendant No. 2 was a man of an unsound mind and incapable of entering into any contract with the plaintiff. Defendant No. 1 is a simpleton person. About three years before the filing of the suit, the plaintiff represented to the defendants that he would arrange Tacavi loan for the installation of a tube-well in their land and for that purpose the defendants were brought to Balachaur and their signatures were obtained on some papers. The defendants could never imagine that the plaintiff would play a fraud upon them. The market value of the suit land was more than Rs. The defendants could never imagine that the plaintiff would play a fraud upon them. The market value of the suit land was more than Rs. 20,000/- per acre and the defendants could never agree to sell the same for a paltry sum of Rs. 5,000/-. The agreement set up by the plaintiff was false and fictitious. The defendants were under the influence of the plaintiff. The plaintiff must have used this fiduciary relationship to serve his own ends. The plaintiff forcibly occupied some part of the land. There was a conspiracy between the plaintiff and the scribe and the witnesses. The mutation of the estate of Puran Singh was rightly attested in favour of defendants Nos. 1 and 2. 4. From the pleadings of the parties, the learned trial Court framed the following issues : 1. Whether the defendants did not execute agreement dated 27.8.1973 in plaintiffs favour ? OPD. Onus objected to. 2. Whether the said agreement is without consideration ? 3. Whether the said agreement is unconscionable and void is the result of fraud, mis-representation and undue influence ? 4. Whether the plaintiff was ready and willing to perform his part of the agreement ? 5. Whether the suit is not correctly valued for purpose of court fee and jurisdiction ? 6. Whether defendant No. 2 is of unsound mind ? If so, to what effect ? 7. To what amount in the alternative plaintiff is entitled ? OPD 8. Relief. The parties led oral as well as documentary evidence in support of their case. While deciding issue Nos. 1, 2 and 3 collectively, all the issues were decided against the plaintiff and in favour of the defendants. Issue No. 4 as decided in favour of the plaintiff. Issue No. 5 was decided against the plaintiff. Issue No. 6 was decided against the defendants observing that defendant No. 2 was a simpleton person, but he was not a man of unsound mind. Finally, the suit of the plaintiff Shri Mohinder Singh was dismissed by the trial Court vide judgment and decree dated 29th March, 1978. Aggrieved by the judgment and decree, the plaintiff Shri Mohinder Singh has filed an appeal before the Court of Additional District Judge, Hoshiarpur, who reversed the findings of the trial Court on the point with regard to the execution of the agreement to sell (Exhibit P-1). Aggrieved by the judgment and decree, the plaintiff Shri Mohinder Singh has filed an appeal before the Court of Additional District Judge, Hoshiarpur, who reversed the findings of the trial Court on the point with regard to the execution of the agreement to sell (Exhibit P-1). The first appellate Court held that the respondents executed the sale deed in favour of the appellant for a consideration of Rs. 5000/- and also delivered possession of the land in dispute to him on 27.8.1973 at the time of the execution of the agreement to sell. However, the first appellate Court found that while the plaintiff is not entitled to a decree for possession by way of specific performance because it would be most inequitable to interfere with the specific performance and to this extent an alternative relief was given to the plaintiff and a money decree in the sum of Rs. 5000/- was passed against the defendants leaving the parties to bear their own costs of the suit. Still not satisfied with the judgment and decree of the first appellate Court, Shri Mohinder Singh plaintiff has come in the present appeal. 5. I have heard Ms. Harsh Rekha on behalf of the appellant and Shri I.S. Bajwa, on behalf of the respondents and with their assistance, have gone through the record of the case. 6. Before I give my own reasons to dispose of this appeal through this judgment, it will be appropriate for me to refer to the observations of the first appellate Court which are contained in paragraphs 5, 6 and 7 of the impugned judgment : "Coming to issue Nos. 1 to 3, I find that the finding of the trial Court on these three issues cannot be sustained. The relevant agreement of sale is Exhibit P-1 dated 27.8.1973. It was scribed by Shri Kulbhushan Dutt (PW5) and was attested by two witnesses, including Lachhman (PW3). They both supported the case of the plaintiff-appellant regarding the execution of the agreement of sale Exhibit P-1 by the two defendants and their receiving the consideration of Rs. 5,000/-. The learned counsel for the defendant- respondents Sh. O.L. Bahl, Advocate, did not even make an attempt to assail the testimony of Lachhman (PW3) or Kulbhushan Dutt (PW5). There is a recital in the agreement Exhibit P-1 regarding the payment of the sale consideration of Rs. 5000/- to the two defendant-respondents. 5,000/-. The learned counsel for the defendant- respondents Sh. O.L. Bahl, Advocate, did not even make an attempt to assail the testimony of Lachhman (PW3) or Kulbhushan Dutt (PW5). There is a recital in the agreement Exhibit P-1 regarding the payment of the sale consideration of Rs. 5000/- to the two defendant-respondents. There is also a recital regarding the delivery of possession of the said land which the respondents agreed to sell to the appellant. Even in para 3 of the written statement it was admitted that the plaintiff-appellant was in possession of the suit land though it was further pleaded that the appellant was in illegal possession of the land. No attempt was made to explain the circumstances in which nor any time was mentioned when the appellant had allegedly taken forcible possession of the land in dispute. Mohinder Singh appellant (PW1) deposed that he served the defendants with the notice, copy of the which was placed on record as Exhibit P-2. In this notice the appellant clearly indicated the terms of the agreement of sale dated 27.8.1973 which was claimed to have been executed by the respondent at Balachaur on 27.8.1973. It was also indicated in the notice that since the mutation had been sanctioned by the Assistant Collector 1st Grade, Garhshankar, on 1.6.1976 in accordance with the will dated 7.7.1968, the respondents were required to execute the sale deed in favour of the appellant on or before the 30.6.1976 otherwise the appellant was to institute a civil suit for that purpose. This notice is dated 8.6.1976 indicating thereby that the appellant sent the notice to the respondents within seven days of the mutation having been sanctioned in favour of the respondents. Shri P.C. Sharma, Advocate, appeared as P.W.2.2 and deposed that he served the appellant with the notice Exhibit P-8 at the instance of the two respondents and that it was singed by him and also by Harjit Singh respondent. In his cross- examination, he made it clear that the respondents had executed power of Attorney in his favour but they had later taken away the brief from him. He denied, the suggestion that he got the signatures of Harjit Singh respondent on a blank inland letter. In his cross- examination, he made it clear that the respondents had executed power of Attorney in his favour but they had later taken away the brief from him. He denied, the suggestion that he got the signatures of Harjit Singh respondent on a blank inland letter. Harjit Singh respondent appeared as D.W.2 and stated in his examination-in-chief that he contacted Shri Prem Chand Advocate for replying to the notice of the appellant and that he instructed the counsel to mention in the reply to the notice the story about the Tacavi loan but the counsel had sent the reply to the notice of his own accord. In his cross- examination, he stated that the tacavi was to be taken from the Land Mortgage Bank in which the respondents were not the shareholders. He rather stated that he was serving in the Army at that time. He then added that the respondents were to take tacavi of Rs. 5000/-. He admitted that no application for the tacavi was made in the year 1973 or earlier to that. It is also in his cross-examination that the respondents did not go to the Bank on that day when the agreement of sale came into existence. Harjit Singh respondent admitted that the agreement Exhibit P-1 was signed by him and Karam Singh respondent and further that they had also signed in the register of the scribe of Exhibit P-1. It is also in his cross-examination that on the receipt of the notice, he came to know that instead of bringing into existence of a document for tacavi loan, the appellant had got executed the agreement of sale. He could not deny if the stamp appear on which Exhibit P-1 was scribed was purchased by Karam Singh. There could be no reason for Shri P.C. Sharma to support the claim of the appellant and reply to the notice of the appellant against the instructions of the respondents. In the reply Exhibit P-8 it was admitted that the respondents had entered into an agreement to sell the land mentioned in the notice, copy Exhibit P-2, for Rs. 5000/- but it was added that after the execution of the agreement of sale, the appellant had shown his inability to advance Rs. 5000/- to the respondents though he had agreed to pay the same on 27.8.1973, itself. 5000/- but it was added that after the execution of the agreement of sale, the appellant had shown his inability to advance Rs. 5000/- to the respondents though he had agreed to pay the same on 27.8.1973, itself. It was also mentioned in the reply that the appellant did not pay the amount of Rs. 5000/-. The reply further indicated that the respondents did not admit that they had agreed to pay the damages in case of default. It was also pleaded in the reply that the agreement was not a valid agreement. It was further alleged that the appellant was never ready with the amount of Rs. 5000/- and hence never wanted to get the sale deed executed in his favour and as such it was alleged that the appellant had not complied with the agreement of sale. They reply Exhibit P-8 is dated 12.7.1976. In view of the admissions made by the respondents in the reply Exhibit P-8, sent by them through their counsel in response to the notice of the appellant, copy Exhibit P-2, it did not lie in their mouth to plead that the agreement of sale Exhibit P-1 came into existence as a result of fraud or undue influence. Although there was a recital in the agreement of the sale Exhibit P-1 that the possession of the land agreed to be sold was delivered to the appellant, the respondents pleaded that the appellant was in unlawful possession of the land in dispute but it was not mentioned when and under what circumstances and in what manner the appellant had taken forcible possession of the land in dispute. Harjit Singh defendant-respondent (D.W.2) denied in his cross- examination that the possession of the land was given to the appellant on the day when the agreement of sale was executed. He rather claimed that the respondents were still in possession of the suit land. In the next breath he stated that the appellant took possession of the land after three months of the institution of the suit although in the written statement itself it had been pleaded that the appellant had taken forcible possession of the land. Harjit Singh further added that the possession was taken by the appellant after the mutation had been sanctioned in their favour on the basis of the will. Harjit Singh further added that the possession was taken by the appellant after the mutation had been sanctioned in their favour on the basis of the will. Evidently the respondents distorted the truth about the appellant taking possession of the land in dispute. The circumstances of the case leave no scope for doubt that the possession of the land was taken by the appellant under the agreement of sale (Exhibit P-1). It also appears from the cross- examination of Harjit Singh (DW2) that he made an application against the appellant to the year 1973 on which an inquiry was held and that during the inquiry the appellant produced the agreement of sale. In above mentioned circumstances, I hold that the respondents executed the agreement of sale Exhibit P-1 in favour of the appellant for a cash consideration of Rs. 5000/- and also delivered the possession of the land in dispute to the appellant on 27.8.1973 at the time of the execution of the agreement of sale. It evident from the reply Exhibit P-8 to the notice of the appellant that the respondent were not willing to comply with the terms of agreement of sale. This intention is also clear from their written statement. Even Harjit Singh respondent (DW2) stated at the close of his cross- examination that the respondents were never willing to execute the sale deed. I, therefore, set aside the findings of the trial Court on issue Nos. 1 to 3 in favour of the appellant on 27.8.1973 for a cash consideration of Rs. 5000/- and that the agreement of sale did not come into existence as a result of fraud, mis-representation or undue influence." 7. The learned counsel for the appellant submitted that when it is established on the record and it was so held by the first appellate Court that the defendants executed the agreement of sale in favour of the plaintiff and received a cash consideration of Rs. 5000/- and also delivered the possession and further it is established that the plaintiff was ready and willing to perform his part of the agreement, it was obligatory on the part of the first appellate Court as well as the trial Court to grant a decree of possession by way of specific performance. 5000/- and also delivered the possession and further it is established that the plaintiff was ready and willing to perform his part of the agreement, it was obligatory on the part of the first appellate Court as well as the trial Court to grant a decree of possession by way of specific performance. The first appellate Court has tried to make out a new case for the defendants which case was never pleaded by the defendants either in the written statement or anywhere else. She submitted that before the filing of the suit the plaintiff gave a notice and copy of which is Exhibit P-2 on the record. This notice was given on 8.6.1976. In response to that notice the defendants gave reply Exhibit P-8 and in the said reply it was categorically admitted by the defendants that they had entered into an agreement to sell the land for a sum of Rs. 5000/-. The defence at that time of the defendants was that the plaintiff showed his inability to advance Rs. 5000/- to his client just after the execution of the agreement. He gave a representation to the defendants that he would pay Rs. 5000/- in the village. He did not pay that amount as he had no money. Resultantly, the agreement was without any consideration. 8. On the contrary it was submitted by the defendants that the plaintiff never paid a sum of Rs. 5000/-. The agreement was executed in different circumstances. In fact, there was a dispute with regard to the mutation of Shri Puran Singh. That mutation proceedings were pending before the learned Assistant Collector Ist Grade. The plaintiff being brothers exercised influence upon the defendants and managed the agreement of sale in his favour. 9. Learned counsel appearing on behalf of the appellant-plaintiff submitted that a new case has been made out by the defendant in the written statement which is against their pleadings and no amount of evidence can be looked into which is beyond the pleadings of the parties. She submitted that the first appellate Court refused to give the specific performance mainly on two grounds, firstly that the value of the land at the time of the agreement to sell was more than Rs. 5000/- and secondly, that it was inequitable to gave a decree for specific performance when the relief of specific performance is discretionary. 10. She submitted that the first appellate Court refused to give the specific performance mainly on two grounds, firstly that the value of the land at the time of the agreement to sell was more than Rs. 5000/- and secondly, that it was inequitable to gave a decree for specific performance when the relief of specific performance is discretionary. 10. I have considered the rival submissions of the parties and am of the opinion that though it is established on the record that the agreement was signed by the defendants, but it was not the intention of the defendants to sell the land in favour of the plaintiff. Truth must come out. It has a volcanic effect. If we read the pleadings of the plaintiff it will show that the circumstances were different when the agreement to sell was executed on 27.8.1973. It is the admitted case of the parties that Shri Puran Singh was the father of the plaintiff and the defendants. It is also the common case of the parties that Shri Puran Singh had executed a will in favour of Sarvshri Harjit Singh and Karam Singh, meaning thereby that Shri Mohinder Singh was excluded under that will dated 7.8.1968 and the three brothers are agriculturist. It is always the desire of every agriculturist specially of a male issue to inherit the land of his father. It is stated in para No. 2 of the plaint by the plaintiff himself that on 27.8.1973 the defendants represented to the plaintiff that Shri Puran Singh had executed a will in their favour on 7.7.1968. What was the necessity on the part of the defendants to make a representation to the plaintiff of the execution of the will on 27.8.1973. We all know that mutation does not confer a title. Shri Puran Singh must have died before 27.8.1973. It has further come in evidence that mutation proceedings of Shri Puran Singh were being contested by his widow and the daughters. If the will dated 7.7.1968 goes naturally the plaintiff was also to succeed to the property along with his sister and mother. Everybody would like to have the possessory title of the property. It was quite reasonable that as Shri Mohinder Singh never liked his two brothers Harjit Singh and Karam Singh may get the inheritance of Shri Puran Singh under the will dated 7.7.1968. Everybody would like to have the possessory title of the property. It was quite reasonable that as Shri Mohinder Singh never liked his two brothers Harjit Singh and Karam Singh may get the inheritance of Shri Puran Singh under the will dated 7.7.1968. He must have put the pressure upon the defendants to execute some writing in his favour and in that eventuality, he would not contest the mutation proceedings and the will dated 7.7.1968. With this background the agreement to sell was executed. There is one more strong stand to show that equity does not lie in favour of the plaintiff so as to claim a decree for possession by way of specific performance. If the plaintiff had paid a sum of Rs. 5000/- for the entire sale consideration on 27.8.1973, there was no necessity to say that the sale deed would be got executed one month after sanctioning of the mutation. On 27.8.1973 itself the plaintiff could get the sale deed executed in his favour by acknowledging a fact that Shri Puran Singh had executed a will in favour of his two brothers. We all know that the relief of specific performance is a discretionary one. It cannot be claimed as a matter of right though discretion has to be used in a judicious manner. Section 20(2)(c) of the Specific Relief Act, 1963 lays down that "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 correction by a Court of appeal". According to sub-clause (2) of Section 20 following are cases in which the court may properly exercise discretion not to decree specific performance - where the defendant entered into the contract under circumstances which though not rendering the contract voidable, makes it inequitable to enforce specific performance". The element of hardship had crept into the contract between the parties. It is true that mere inadequacy of consideration is no ground to refuse the specific performance, but granting specific performance after a lapse of 28 years specially when he has proved on record that the market value of the land even on the day of sale was not less than Rs. 12,000/-, would be totally unjustified. It is true that mere inadequacy of consideration is no ground to refuse the specific performance, but granting specific performance after a lapse of 28 years specially when he has proved on record that the market value of the land even on the day of sale was not less than Rs. 12,000/-, would be totally unjustified. It is abundantly proved on record that the agreement of sale was executed at the time when dispute regarding mutation was pending. Also it is established on record that after the execution of the agreement Exhibit P-1 the plaintiff appeared before the S.D.O. and made a statement that the mutation be sanctioned in favour of the respondents and he has no objection to its sanction, meaning thereby that the plaintiff had still a point in the shape of agreement of sale in his favour and for that reason he was concurring to the mutation in favour of the defendants. If the plaintiff or his brothers or sisters had objected to the mutation and to the sale of Shri Puran Singh, the mutation would have been declared contested by the revenue authorities aggravating the misery of the legatees under the sale. When the mutation of Shri Puran Singh was being contested before the revenue authorities by the plaintiff as well as by his mother and sister, if with that background a document has been executed which, prima facie, appears to be harsh, in such an eventuality decree for specific performance could not be granted in favour of the purchaser by virtue of the provisions of Section 20 sub-clause (2)(c) and (3) of the Specific Relief Act. 11. Now the point survives for determination is whether the plaintiff- appellant can be compensated more than Rs. 5000/- which was awarded by the first appellate Court. The decree for specific performance has been defeated in view of the provisions contained in Section 20(2)(c)(3) of the Specific Relief Act, 1963. A person who seeks equity must do equity to the opposite party. Defendants had received a sum of Rs. 5000/- under the agreement since 1973. They had drawn the fruits of this amount of Rs. 5,000/-. Therefore, they must return this amount with interest. This part of the case has not been considered by the first appellate Court. A person who seeks equity must do equity to the opposite party. Defendants had received a sum of Rs. 5000/- under the agreement since 1973. They had drawn the fruits of this amount of Rs. 5,000/-. Therefore, they must return this amount with interest. This part of the case has not been considered by the first appellate Court. Thus, the appeal is partly allowed; the judgment and decree of the first appellate Court is hereby modified and a money decree for a sum of Rs. 5000/- is hereby granted in favour of the plaintiff, Shri Mohinder Singh, against the defendants with interest at the rate of 12 per cent per annum from 1973 till payment. Simple rate of interest shall be calculated. The defendants shall also pay costs of the suit of the trial Court, first appellate Court and of the High Court to the plaintiff. Decree sheet be drawn accordingly. Appeal partly allowed.