Research › Search › Judgment

J&K High Court · body

2011 DIGILAW 380 (JK)

Mohammad Maqbool Patu v. Mst. Misra Begum & Ors

2011-07-30

MANSOOR AHMAD MIR

body2011
1. This civil first appeal is directed against judgment and decree dated 30th of October, 2001 passed by 4th Additional District Judge, Srinagar in a suit titled as Raja Abdul Aziz Lesoo & Ors. Versus Mohammad Maqbool Patoo, whereby the suit for grant of decree of specific performance, came to be granted, hereinafter for short as impugned judgment. 2 Raja Abdul Aziz Lesoo, plaintiff filed a suit for specific performance of contract on the ground that defendant/appellant herein has executed a deed of agreement to sell in his favour for land measuring 13 marlas falling under khewat No. 102 Min and survey No. 242 Min situated at Owanta Bhawan Tehsil Ganderbal. 3 Defendant resisted the suit on various grounds and following issues came to be framed:- 1. Whether the plaintiff is in possession of the suit land from 1997 and continues to be so till date? OPP 2. Whether the plaintiff has served notice dated 29th May, 1984 upon the defendant to obtain the revenue papers with regard to the land from the Patrwari and execute the sale deed in his favour? OPP 3. Whether an amount of Rs. 23,000/have been received back by the plaintiff in lieu of the amount of Rs. 20,000/paid by him to the defendant at the time of execution of contract of sale dated 8th April, 1980? OPD 4. Whether Shri Ghulam Ahmad Teeli is in possession of the land and has constructed shops and other structures on the land, if so, what is its effect on the suit? OPD 5. Whether the defendant has executed a contract sale for 10 marlas of land out of the suit land in favour of Shri Teeli on 6th September, 1980, if so, what is its effect on the suit? OPD 4. Parties led evidence and suit came to be decreed vide impugned judgment. 5. Mr. Lone argued that plaintiff- Raja Abdul Aziz had not signed the document thus the agreement to sell was not enforceable under law. Trial court-4th Additional District Judge, Srinagar has, after discussing the material, held that a plea was raised that plaintiff had managed the signatures of the document during the pendency of suit and matter was referred to Registrar Vigilance High Court for conducting enquiry which could not be determined as the same was later on deferred in terms of a direction of Lord Chief Justice till decision in the suit. 6. 6. Whether the signatures were managed during the pendency of the suit or the plaintiff had signed the document at the time of execution is a moot question for consideration and the entire controversy revolves around it. Trial court has kept the said question undecided and has held that at present the document is signed. It is apt to reproduce relevant para of the judgment herein:- Presently the document bear the signature of the plaintiff and has been also proved in evidence by the plaintiff as EXPW1. It is also true that at the time of filing written statement by the defendant, it has been pleaded that this agreement to sell deed has not been accepted by the plaintiff. For the arguments sake as argued by the learned counsel for the defendant that the deed has not been signed by the plaintiff at the time of its execution, the moot question arises that whether in such situation the document is not enforceable under law The conditions have been fulfilled by the plaintiff by making payment in accordance with the terms of contract and the defendant has also received the payment in terms of the contract, therefore, the defendant has no right to avoid the performance of contract. Since all the formalities in the contract stands fulfilled, therefore, the contract cannot be deemed to be in-valid only that it did not bear the signature of the plaintiff. This is just a presumption.. 7. Perusal of the relevant extract of the judgment makes it amply clear that the trial court has not returned finding whether the agreement to sell was signed at the time of execution or not. It was obligatory on the part of the trial court to determine this point because the contents contained in Section 54 of the J&K Transfer of Properties Act are not the same which are contained in Section 54 of the Central Code of Transfer of Properties Act. It is apt to reproduce the Section 54 of both the Acts herein: Section 54 of Central Code 54. Sale defined.- Sale is a transfer of ownership in exchange for a price paid or promised or part-paid and part-promised. It is apt to reproduce the Section 54 of both the Acts herein: Section 54 of Central Code 54. Sale defined.- Sale is a transfer of ownership in exchange for a price paid or promised or part-paid and part-promised. Sale how made.-Such transfer, in the case of tangible immoveable property of the value of one hundred rupees and upwards, or in the case of a reversion or other intangible thing, can be made only by a registered instrument. In the case of tangible immoveable property of a value less than one hundred rupees, such transfer may be made either by a registered instrument or by delivery of the property. Delivery of tangible immoveable property takes place when the seller places the buyer, or such person as he directs, in possession of the property. Contract for sale.-A contract for the sale of immoveable property is a contract that a sale of such property shall take place on terms settled between the parties. It does not, of itself, create any interest in or charge on such property. Section 54 of State Code 54. Sale defined Sale is a transfer of ownership in exchange for a price paid or promised or part-paid and part-promised. Sale how made Such transfer, in the case of tangible immoveable property or in the case of a reversion or other intangible thing, can be made only by a registered instrument. Contract for sale A contract for the sale of immoveable property is a contract that a sale of such property shall take place on terms settled between the parties, but no such contract shall be valid, unless it is in writing, and signed by the parties. It does not, of itself, create any interest in or charge on such property. 8. While going through the provisions of Section 54 of the J&K Transfer of properties Act it is crystal clear that the document must be in writing and signed by both the parties. If the document is not signed even by one of the parties, it is not enforceable at all. The same question came up for consideration before the Division Bench of this court in a Civil 1st Appeal titled as Chaman Lal and anr. Versus Khan Abdul Ghani reported as 1987 KLJ 526. It is apt to reproduce Para 14, 15, and 16 herein:- 14. The same question came up for consideration before the Division Bench of this court in a Civil 1st Appeal titled as Chaman Lal and anr. Versus Khan Abdul Ghani reported as 1987 KLJ 526. It is apt to reproduce Para 14, 15, and 16 herein:- 14. In Kashmir Singh vs. Janak Singh (3, J&K L.R: 139) the Board of judicial Advisors had an occasion to consider the validity of an agreement in the light of section 54 of the Transfer of Property Act. It may be stated that section 54 of the J&K State Transfer of Property Act is couched in a different language which is not used in the said section applicable to the rest of the country. It was held that agreement of sale in order to be valid and binding must clearly set forth the respective rights and liabilities of both the parties to the agreement and must also receive the signatures of both parties to signify their assent. 15. Again in Ghulam-ud-Din and ors vs. Haji Abdul Razak Keng and others (4, J&K L. R: 126) the Board of Judicial Advisors laid down that agreement for sale is to be signed by both the parties and it is not valid and binding if it is not signed by both the parties. 16. In respect of 3, J&K L. R. (Supra) Mr. Bhagotra contends that section 54 requires that terms as regards rights and liabilities of both the parties to the agreement should be set forth and it should receive assent of both the parties which assent is to be evidenced by their respective signatures. If otherwise terms and conditions of agreement of sale have received assent of the parties, it is not necessary that both of them should put their signatures on it. Putting signatures on the document is only to indicate that the terms and conditions have been accepted by both the parties. If that can be ascertained from the evidence, then, non- signing by vendee may not be fatal. The vendor admittedly in the present case has assented to the sale of his house in lieu of consideration which he has partly received and agreed to receive the balance on a future date, has rendered the agreement valid even if there is no signature of the appellant No. 2. According to Mr. The vendor admittedly in the present case has assented to the sale of his house in lieu of consideration which he has partly received and agreed to receive the balance on a future date, has rendered the agreement valid even if there is no signature of the appellant No. 2. According to Mr. Bhagotra assent of the vendor can be inferred from the contents of the agreement as also from the evidence adduced in the case by the parties. The appellant No. 2 has also given the assent because he has paid part of the consideration which is accepted by the respondent. About the authority reported in 4, J&K LR (Supra) Mr. Bhagotra has urged that this authority was on a different point and did not directly deal with the point involved in the present case. We have examined this authority. It really pertains to the question of payment of damages and do not raise any question regarding the validity of agreement for sale on the basis of section 54 of the Transfer of Property Act. The Nazool land was also subject matter of agreement for which permission was to be obtained by the defendant from the authorities. The permission was not granted. Therefore the question arose whether credit of Rs. 1000/- should be given to the defendant and whether he was liable to pay the damages to the plaintiff or not. The Board held that default was not because of the defendant but because of the revenue authorities not giving permission to him to sell out Nazool land, though the defendant had made an application before them. Therefore on his part he was willing and ready to perform his obligation which could not be performed because of some other agency which was not party to the agreement. 9. In the said case one of the contracting parties had not signed the document and it was held that the said agreement to sell cannot be enforced by the party who has not signed the same. It is apt to reproduce Para 28 of the judgment supra herein:- 28. Issue No. 1 in suit No. 49 relates to the validity of the agreement EXPW1/1. It is apt to reproduce Para 28 of the judgment supra herein:- 28. Issue No. 1 in suit No. 49 relates to the validity of the agreement EXPW1/1. In the light of the detailed discussion made hereinabove the answer to issue No.1 is that the document in question dated 16.9.1972 is valid only in between appellant No.1 and the respondent and it cannot be said to be valid between appellant No.2 and the respondent. The effect of non- signing of the document EXPW1/1 by the appellant No. 2 is that it will not be enforced by the appellant No. 2 against the respondent for the relief of specific performance of the contract. Issues Nos, 1 & 2 are accordingly answered. 10. It pains me to make mention herein that instead of asking the plaintiff to discharge the onus and prove the document to be valid and enforceable, the trial court, unfortunately, had put the burden on defendants-appellant to discharge the onus. However the parties despite being conscious about the controversy, did not object to such shoulder change, and instead chose to lead evidence. It was for the trial court to see and determine whether document was signed by the plaintiff at the time of execution and then decide the fate of the suit and without doing so, the trial court has fallen in error in granting the suit. 10 In the given circumstances, the finding returned by the trial court while deciding the issue No.1 is set-aside. I deem it proper to remand the case back to the trial court with the direction to decide the issue with a further direction that both the parties be given two opportunities each to lead evidence vis-`-vis issue No.1. Accordingly appeal is allowed, impugned judgment and decree is set-aside. Appellant is directed to cause appearance before the trial court on 10th of August, 2011. Trial court to issue notice to the legal heirs of the plaintiff-respondent before proceeding ahead with the direction to decide the suit within three months from the date the parties cause appearance before it. The appeal is accordingly, disposed of.