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2010 DIGILAW 266 (PNJ)

Krishan Kumar v. Gurdial Singh

2010-01-12

VINOD K.SHARMA

body2010
Judgment VINOD K. SHARMA, J. 1. This regular second appeal is directed against the judgment and decree dated 11.9.1985, passed by the learned Courts below, vide which suit filed by the plaintiff / respondent for specific performance of an agreement of sale, was ordered to be decreed. 2. The plaintiff / respondent filed a suit against Smt. Bhagwanti and others, for specific performance of agreement of sale dated 12.12.1977, in respect of House No.706/3, situated near Top Khana Gate, Patiala. The case of the plaintiff / respondent was, that Bhagwan Dass husband of Bhagwanti defendant No.1 and father of defendant Nos.2 to 6, was the owner of house in dispute. He agreed to sell this house to the plaintiff / respondent for a consideration of Rs.15,000/- (Rupees fifteen thousand only), and executed an agreement to sell dated 12.12.1977, in favour of the plaintiff. A sum of Rs.1,000/- ( Rupees one thousand only) was paid as earnest money. The conveyance deed was agreed to be executed after one month, of permission from guardian Court. The remaining amount of sale consideration i. e. Rs.14,000/- (Rupees fourteen thousand only), was to be paid to Bhagwan dass at the time of registration of the sale deed. The case of the plaintiff was, that Bhagwan Dass was competent to sell the house. That his wife Smt. Bhagwanti defendant No.1 was also sitting by his side at the time of execution of the agreement and insisted that sale deed would be executed only after getting permission of guardian Court, qua share of minor son, in spite of the stand of the plaintiff that no permission was required as Bhagwan Dass, alone was the owner of the suit property. The plaintiff / respondent issued a notice to Bhagwan Dass and his wife on 10.2.1978, under postal certificate to execute the sale deed. Sh. Bhagwan Dass lateron fell ill and died on 15.3.1978. After the death of Bhagwan Dass, the plaintiff issued another notice on 29.4.1978 under postal Certificate to defendant No.1 requesting her to execute the sale deed, in pursuance to the agreement dated 12.12.1977, executed by her husband in favour of the plaintiff / respondent. 3. Sh. Bhagwan Dass lateron fell ill and died on 15.3.1978. After the death of Bhagwan Dass, the plaintiff issued another notice on 29.4.1978 under postal Certificate to defendant No.1 requesting her to execute the sale deed, in pursuance to the agreement dated 12.12.1977, executed by her husband in favour of the plaintiff / respondent. 3. The case of the plaintiff / respondent further was, that on coming to know that defendant No.1 was negotiating to sell the house to Krishan Kumar-defendant No.7 and his father Sarup Singh, a notice dated 1.6.1978 was issued to the plaintiff to them informing them, that there was already an agreement to sell dated 12.12.1977, executed by Bhagwan Dass in favour of the plaintiff, therefore, they could not purchase the property. The case of the plaintiff / respondent was that defendants No.1 to 4 executed the sale deed on 7.7.1978, in favour of Krishan Kumar defendant No.8. That the interest of Bhagwan Dass devolved on all his legal heirs i. e. defendants No.1 to 6. Defendants No.5 and 6, who were the minor daughter and son of Bhagwan dass, had also a share in the house. Their share could not be alienated by defendant No.1 without sanction of the Court. No sanction was obtained. The sale in favour of defendant No.7, was said to be illegal and not binding on the plaintiff. It was pleaded that the plaintiff had always been ready and willing to perform his part of the contract, and was still ready and willing to do so. It was prayed, that necessary direction be issued to respondent No.1, to get the permission of guardian Court to execute the sale deed. In case such permission of the Guardian Court was required. In the alternative, it was prayed that in case relief of specific performance is not to be granted, than the plaintiff/ respondent was entitled to recover Rs.1,000/- (Rupees one thousand only) paid as earnest money with another sum of Rs.1,000/- (Rupees one thousand only) as damages, as per the agreement. 4. The suit was contested by defendants No.1 to 4, by filing joint written statement, while defendant No.7 filed separate written statement, because Smt. Bhagwanti defendant No.1 mother of minor defendant Nos.5 and 6, had refused to act as the guardian of the minors, the Court therefore appointed Sh. Subhash Mathur, Advocate to act as Court guardian, in the suit. Sh. The suit was contested by defendants No.1 to 4, by filing joint written statement, while defendant No.7 filed separate written statement, because Smt. Bhagwanti defendant No.1 mother of minor defendant Nos.5 and 6, had refused to act as the guardian of the minors, the Court therefore appointed Sh. Subhash Mathur, Advocate to act as Court guardian, in the suit. Sh. Subhash mathur, Advocate filed a separate written statement on behalf of the minor / defendants, by taking more or less identical pleas taken by the other defendants. 5. On merit, it was denied that Bhagwan Dass had executed agreement of sale with the plaintiff. In any case, the agreement to sell was a result of fraud practiced by Bhagwan Dass. It was also pleaded that the property in dispute was co-parcenary Joint Hindu Family property of Bhagwan Dass, therefore, he was not competent to sell without legal necessity. 6. Krishan Kumar defendant No.7 took a plea, that he was bona fide purchaser for consideration without notice. An additional plea on behalf of the minors was taken, that their share could not be sold by their mother, without permission of the Court. The plea of estoppel against the plaintiff was also raised. On the pleadings of the parties, the learned trial Court framed the following issues :- "1. Whether the defendant Bhagwan Dass executed agreement to sell such property on 12.12.1977 in favour of plaintiff for Rs.15,000/- and received Rs.1,000/- as earnest money ? opp 2. Whether the plaintiff has been ready and willing to perform his part of contract ? opp 3. whether defendant No.7 Krishan Kumar is a bona fide purchaser for value without notice of agreement If so its effect OPD 7 4. Whether the plaintiff is estopped from filing the present suit by his act and conduct OPD 7 5. If issue No.1 is proved, whether the agreement dated 12.12.1977 is not binding upon defendant No.7 OPD 7 6. Whether the defendant No.7 is entitled to special costs ?if so to what effect OPD 7 7. If issue No.1 is proved, whether the agreement is forged and obtained by fraud ? if so its effect OPD7 8. Whether the suit property is coparcenary property and agreement if any is not binding on defendant Nos.1 to 6 OPD1 9. Relief. " 7. If issue No.1 is proved, whether the agreement is forged and obtained by fraud ? if so its effect OPD7 8. Whether the suit property is coparcenary property and agreement if any is not binding on defendant Nos.1 to 6 OPD1 9. Relief. " 7. On appreciation of evidence, the learned trial Court was pleased to hold, that late Bhagwan Dass executed the agreement to sell on 12.12.1977 for consideration of Rs.15,000/- (Rupees fifteen thousand only) and received a sum of Rs.1,000/- (Rupees one thousand only) as earnest money. 8. The learned trial Court on issue No.2, held that as the plaintiff stated on oath, that he was ready and willing to perform his part of contract and was still willing to perform his part of contract; and further that the averments made by the plaintiff, in this regard were not controverted. A false plea that agreement was not executed was taken. In view of this learned Court came to the conclusion that the plaintiff / respondent was always willing and still willing to perform his part of the contract. In order to record this finding reliance was placed on the notices i. e. Ex. P-2, P-3 and P-4, which were said to have been issued to Bhagwan Dass, Bhagwanti and Krishan Kumar under the certificate of postal Ex. P-5 to P-7. The learned trial Court decided issue no.2 also in favour of the plaintiff. 9. On issue No.3, the learned trial Court held that defendant No.7 Krishan kumar was not bona fide purchaser for consideration. Issues No.4 and 6 were decided against defendants as not pressed, whereas issue No.5 was decided against defendant as Krishan Kumar was not found to be bona fide purchaser without notice. On issue No.7, it was held that the agreement was neither forged nor obtained by fraud. 10. On issue No.8, the learned trial Court held that merely because it was stipulated in the agreement Ex. P-1, that the sale deed would be executed after the permission from guardian Court, and further that there was admission, by the plaintiff / respondent that it was ancestral house were not in itself sufficient to hold, that the house was not owned by Bhagwan Dass, exclusively and that it had come to him by inheritance. There was no evidence on record to prove the coparcenary nature of the property. There was no evidence on record to prove the coparcenary nature of the property. The issue No.8 was also decided against the appellant. The suit was decreed, for specific performance. Appeal filed by the appellant also failed. 11. Mr. J. S. Brar, learned counsel appearing on behalf of the appellant contended that the appeal raises the following substantial questions of law :- 1. Whether an agreement providing for permission from guardian Court, before sale of property would include the fact that the share / interest of the minor was in the property? 2. Whether the admission of the plaintiff especially admitting that wife and daughter of vendor had right and interest in the property could be ignored to decree the suit? 3. Whether the plaintiff / respondent was able to prove that he was willing and always remain willing to perform his part of contract? 12. In support of the substantial questions No.1 and 2, the learned counsel for the appellant referred to the agreement Ex. P-1, which provided that the sale deed would be executed, after the permission from the Guardian Court. The learned counsel for the appellant also referred to the statement of plaintiff / respondent, who appeared as PW-1, wherein he admitted categorically, that son of Bhagwan Dass was minor, therefore, it was necessary to get permission from the Guardian Court and furthermore, the wife of Bhagwan dass also had share in the property. These facts according to the learned counsel for the appellant, were sufficient to prove that Bhagwan Dass was not the exclusive owner of the property, and the agreement was not specifically enforceable. 13. On consideration, I find no force in this contention of the learned counsel for the appellant. A wrong recital in the agreement cannot make the property to be ancestral or create any interest of the minor in the property, nor admission by the plaintiff could change character of property, especially when a specific issue No.7, was framed, and the appellant / defendant failed to lead any evidence to prove that the suit property was coparcenary Joint Hindu family property. The substantial questions No.1 and 2, therefore, are answered against the appellant, and in favour of the respondent. The findings on issue no.8, by the learned Courts below are also affirmed. Mr. J. S. Brar, learned senior counsel for the appellant, on the third substantial question of law, referred to Ex. The substantial questions No.1 and 2, therefore, are answered against the appellant, and in favour of the respondent. The findings on issue no.8, by the learned Courts below are also affirmed. Mr. J. S. Brar, learned senior counsel for the appellant, on the third substantial question of law, referred to Ex. P-4 i. e. notices said to have been issued to Sarup Singh at Top khana, Gate, Top Khana road, Patiala. On the certificate of posting, address given is Rup Singh, Top Khana, Patiala and Kisshna Singh son of Rup Singh, Top khana Patiala. The notices were, therefore, not sent at the correct address or correct name, which could lead to presumption that notice was issued to Sh. Krishan Kumar son of Sarup Singh, as per the stand taken by invoking Section 114 of the Evidence Act. 14. Not only this in Ex. P-6 i. e. certificate of posting, vide which the notice dated 29.4.1978, was said to have been sent to Bhagwanti, shows her to be wife of Bhagwan Dutt. The notice is said to have been posted on 29.4.1978, when Sh. Bhagwan Dass had already died. Not only this while on the "certificate of posting" address mentioned is Mst. Bhagwan-wanti w/o Bhagwan Dutt, Arya Smaj patiala, in the notice address given is Smt. Bhagwanti widow of Bhagwan Dass, near Mandir Sat Narian, Patiala. Similarly the notice dated 10.2.1978, which is shown to have been sent to Sh. Bhagwan Dass s/o Piara Singh, near Mandir Sat narian, Opposite Atta Chaki, Patiala, is shown to have been issued under the "certificate of posting" Ex. P-7, where the address given is bhagwan Dutt s/o piara Lal, Arya Smaj Patiala. The said letter has also shown to have been posted to Smt. Bhagwan Wanti widow of Bhagwan Dutt, Arya Samaj Patiala. This letter is shown to have been posted on 10.2.1978 showing Bhagwawnti as widow whereas Sh. Bhagwan Dass was still alive. 15. Thus, it prima facie proved that the "certificates of posting" ex. P-5 to P-7 were forged and fabricated documents. This also further proves that in fact the notices were not sent at the correct address, if they are taken to be sent for sake of arguments. 16. Bhagwan Dass was still alive. 15. Thus, it prima facie proved that the "certificates of posting" ex. P-5 to P-7 were forged and fabricated documents. This also further proves that in fact the notices were not sent at the correct address, if they are taken to be sent for sake of arguments. 16. The contention of the learned counsel for the appellant, therefore was, that if the notices and the postal certificates, are taken out of consideration, there is no other evidence, except bald statement of the plaintiff / respondent that he was always willing and still willing to perform his part of contract. 17. The contention of the learned senior counsel for the appellant therefore was, that the finding of the learned Courts below, on issue No.2, therefore, on the face of it is perverse and contrary, to the evidence on record, therefore, cannot be sustained in law. Mr. Arun Palli, learned senior counsel appearing on behalf of respondent No.1, vehemently contended, that the agreement Ex. P-1 was duly proved and furthermore the plaintiff in para 8 of the plaint had specifically pleaded, that he was always willing and still willing to perform his part of contract, which remained uncontroverted, therefore, the concurrent finding of fact, recorded by the learned Courts below holding that the plaintiff / respondent No.1 was always willing and still willing to perform his part of contract, does not call for any interference by this Court. It was also the contention of the learned senior counsel for the respondent, that the fact of issuance of notices was proved, and thereafter was for defendants No.1 to 6 to get permission of the Guardian Court and approach the plaintiff / respondent to execute the sale deed. Once they failed to do so, no benefit can be taken, by the appellant on the plea, that dispatch of notices was not proved. 18. It was further contended by the learned senior counsel, that in any case, the concurrent finding of fact holding that the plaintiff / respondent was willing and still willing to perform his part of contract cannot be challenged in the regular second appeal. On consideration of the matter, I find force in the contentions raised by the learned counsel for the appellant. On consideration of the matter, I find force in the contentions raised by the learned counsel for the appellant. It is not disputed that except for the notices referred to above, there was no other evidence showing that the plaintiff ever contacted, the legal representatives of Bhagwan Dass, to execute the sale deed. 19. The suit of the plaintiff was based on false documents, as correctly pointed out by the learned counsel for the appellant. The plaintiff / respondent, tried to create evidence, to show his willingness to perform his part of contact by alleging that the notices were sent to Bhagwan Dass, defendant No.1- Bhagwanti, as well as Krishan Kumar, which on appreciation can be said to be forged, or in any case not dispatched at the correct address. The contention of the learned senior counsel for the respondent, that a concurrent finding of fact holding the plaintiff to be willing to perform his part of contact is not open to challenge in regular second appeal, also cannot be sustained as the Honble Supreme Court in the case of Rajeshwari vs. Puran Indoria 2005 (4) R. C. R. (Civil) 36 has laid down, that "whether discretion under Sec.20 of the specific Relief Act in ordering the specific performance of the agreement was exercised properly or not is also a substantial question of law, as it substantially affects the rights of the parties in the suit. " When the finding of fact is based on forged document, then such findings are to be held as perverse, and outcome of misreading of evidence, which is a substantial question of law. The error can be corrected by the High Court in exercise of jurisdiction under Sec.100 of the Code of Civil Procedure. The third substantial question of law is answered in favour of the appellant and against the plaintiff / respondent. The grant of relief of specific performance, is a discretionary relief, and a person who approaches the Court with unclean hands, and basis his case on false evidence by creating evidence, is not entitled to the discretion of the Court. 20 The finding of the learned Courts below, on issue No.2 is reversed, and it is held that the plaintiff has failed to prove that he was willing and still willing to perform his part of the contract. 20 The finding of the learned Courts below, on issue No.2 is reversed, and it is held that the plaintiff has failed to prove that he was willing and still willing to perform his part of the contract. In order to succeed in a suit for specific performance the plaintiff beside proving the due execution of agreement, is also under statutory duty to prove that he was always and still willing to perform the part of the contract, which plaintiff failed. The plaintiff in order to succeed in a suit for specific performance is also required to approach the Court, with clean hands. In case it is found that a party has not approached the Court with clean hands, the discretionary relief can not be granted to defaulting party. 21. Consequently, this regular second appeal is allowed, the judgment and decree passed by the learned Courts below is set aside. However, keeping in view the fact that the agreement Ex. P-1 stood proved, a decree is passed in favour of the plaintiff / respondent, for recovery of Rs.1000/- (Rupees one thousand only), along with interest @ 12% per annum thereon from the date of execution of agreement till date. The plaintiff / respondent shall also be entitled to future interest @ 6% per annum till realisation.