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2013 DIGILAW 2037 (DEL)

Akhtar Ali v. Bimla Devi

2013-10-23

RAJIV SAHAI ENDLAW

body2013
Judgment : Rajiv Sahai Endlaw, J. 1. The appeal impugns the judgment and decree dated 9th February, 1990 of the Sub Judge, 1st Class, Delhi in Suit No.248/1989 filed by the appellant against the respondents for the relief of specific performance of an Agreement of Sale of immovable property and in the alternative for refund of advance paid with interest and compensation; by the impugned judgment, the appellant/plaintiff has been denied the relief of specific performance and has been granted a decree against the respondents/defendants no.1 to 8 for recovery of Rs.10,000/-with future interest at 12% per annum and proportionate costs. 2. The appellant/plaintiff, on 23rd August, 1983, had instituted the suit from which this appeal arises pleading:- (a). that the respondents/defendants no.1 to 8 had vide Agreement dated 4th March, 1983 agreed to sell their property No.6777 situated inside Akata Kidara, Bara Hindu Rao, Delhi to the appellant/plaintiff for a total sale consideration of Rs.16,000/-out of which the appellant/plaintiff paid Rs.5,000/- at the time of Agreement to Sell; (b). that the sale was agreed to be completed by executing the Sale Deed in favour of the appellant/plaintiff within one month of the Agreement to Sell i.e. by 3rd April, 1983; (c). it was stated in the Agreement to Sell that possession of the property was with Ashraf Ali father of the appellant/plaintiff who was a tenant in the property at a rent of Rs.4/- per month since the year 1934; (d). that the appellant/plaintiff as such since his birth has been residing in the property and had entered into the agreement to save his family from displacement therefrom at any time; (e). that though there was a provision in the Agreement to Sell that if the respondents/defendants no.1 to 8 committed default in execution of the Sale Deed they shall be liable to refund the earnest money and pay liquidated sum of Rs.5,000/-as damages to the appellant/plaintiff but the said stipulation was made for the purpose of securing performance of the contract and not for giving the respondents/defendants no.1 to 8 an option of paying the money in lieu of specific performance; (f). that the appellant/plaintiff had always been ready and willing to perform his part of the agreement and had on 24th March, 1983 also purchased non-judicial stamp papers for execution of the Sale Deed and had got prepared a plan of the property for being registered along with the Sale Deed; (g). that the appellant/plaintiff repeatedly requested the respondents/defendants no.1 to 8 to execute the Sale Deed and receive the balance sale consideration but they continued putting off the appellant/plaintiff on one pretext or other; (h). that ultimately the appellant/plaintiff got sent notice dated 30th March, 1983 to the respondents/defendants no.1 to 8 expressing his willingness and calling upon them to execute the Sale Deed; (i). that the respondents/defendants no.1 to 8 vide reply dated 7th April, 1983 of their Advocate took a stand that the appellant/plaintiff had expressed his inability to purchase the property and therefore the respondents/defendants no.1 to 8 had entered into an Agreement with another buyer and executed the Sale Deed in his favour and the appellant/plaintiff could have the remedy available to him to receive Rs.5,000/-; (j). that the appellant/plaintiff had never expressed inability to purchase the property and the sale by the respondents/defendants no.1 to 8 in favour of the respondent/defendant no.9 on 26th March, 1983 is deceitful, collusive and sham, being even before the expiry of the time stipulated in the agreement for execution of Sale Deed in favour of the appellant/plaintiff and also for the reason that while the sale in favour of the appellant/plaintiff was to be for Rs.16,000/-the sale effected in favour of the respondent/defendant no.9 was for Rs.9,500/- only; and, (k). that the respondent/defendant no.9 had purchased the property with knowledge of the Agreement of Sale with the appellant/plaintiff; the respondent/defendant no.9 along with her husband had come to see the house on 10th March, 1983 informing that she was interested in purchasing the same and the appellant/plaintiff had informed the respondent/defendant no.9 and her husband of the Agreement to Sell in his favour and had in fact also shown the said Agreement to them and upon seeing which they had said that they were not interested in buying litigation; however they had collusively still gone ahead and purchased the property to defeat the rights of the appellant/plaintiff. 3. The respondents/defendants no.1 to 8 contested the suit by filing a written statement, on the grounds:- (i). 3. The respondents/defendants no.1 to 8 contested the suit by filing a written statement, on the grounds:- (i). that the title of the property having already passed to the respondent/defendant no.9, the suit against the respondents/defendants no.1 to 8 was not maintainable; (ii). though admitting the execution of the Agreement to Sell but denying execution of any separate receipt of Rs.5,000/-and also denying having undertaken to complete the transaction by executing the Sale Deed by 3rd April, 1983; (iii). that the respondent/defendant no.1 is an illiterate lady and does not know the contents of the document got executed from her; the appellant/plaintiff got signed certain blank form/stamp paper from her under the belief that the same were for the rent of the premises; (iv). denying that the father of the appellant/plaintiff was a tenant in the premises since 1934 or that the appellant/plaintiff was residing in the premises since birth; (v). denying that the appellant/plaintiff had been ready and willing to perform his part of the Agreement; (vi). that the appellant/plaintiff never approached the respondents/defendants no.1 to 8 for doing the needful; rather when they approached the appellant/plaintiff he failed to do the needful; (vii). that when the respondents/defendants no.1 to 8 did not receive any positive reply from the appellant/plaintiff they entered into an Agreement with the respondent/defendant no.9; (viii). denying that the sale in favour of the respondent/defendant no.9 was collusive; (ix). that since the appellant/plaintiff had informed the respondents/defendants no.1 to 8 before hand that he was not in a position to furnish the balance consideration or even the money for the purchase of the stamp papers for execution of the Sale Deed, the Agreement to Sell was revoked and the appellant/plaintiff informed well in advance of the sale in favour of the respondent/defendant no.9; (x). that the respondents/defendants no.1 to 8 needed the money in emergency in view of the approaching marriage of the son of the respondent/defendant no.1 and the sale was thus carried out for even lesser amount; and, (xi). denying that the respondent/defendant no.9 was aware of the Agreement of the respondents/defendants no.1 to 8 with the appellant/plaintiff. 4. The respondent/defendant no.9 also contested the suit by filing a separate written statement on the grounds:- (A). denying that the respondent/defendant no.9 had any knowledge of the Agreement to Sell in favour of the appellant/plaintiff; (B). denying that the respondent/defendant no.9 was aware of the Agreement of the respondents/defendants no.1 to 8 with the appellant/plaintiff. 4. The respondent/defendant no.9 also contested the suit by filing a separate written statement on the grounds:- (A). denying that the respondent/defendant no.9 had any knowledge of the Agreement to Sell in favour of the appellant/plaintiff; (B). that the respondent/defendant no.9 purchased the property in good faith and acting on the promises and assurances of the respondents/defendants no.1 to 8 that the property was free from all liens, charges, transfers, disputes, legal flaws etc.; (C). that the Agreement to Sell had been fabricated by the respondents/defendants no.1 to 8 in collusion with the appellant/plaintiff; RFA No.418/1990 Page 9 of 34 (D). denying that the father of the appellant/plaintiff was a tenant in the property since the year 1934; (E). that the respondent/defendant no.9 paid in all a sum of Rs.25,000/-to the respondents/defendants no.1 to 8; a sum of Rs.15,500/-was appropriated towards the price of fixtures and fittings installed in the premises and the remaining amount of Rs.9,500/- was received towards sale of land and superstructure; (F). denying that the respondent/defendant no.9 had gone to see the house or that the appellant/plaintiff had informed her of the Agreement to Sell in his favour; and, (G). that the Agreement to Sell set-up by the appellant/plaintiff was not specifically enforceable and compensation in terms of money was the only adequate relief. 5. The appellant/plaintiff filed replications to the written statements but the same are mere reiteration of the contents of the plaint. 6. In the aforesaid state of pleadings, the following issues were framed in the suit on 25th July, 1986:- “1) Whether the defendant entered into agreement of specific performance or in the alternative whether the plaintiff is entitled to recover any amount from the defendant? 2) Whether the plaintiff has no cause of action against the defendant? OPD 3) Relief.” 7. The appellant/plaintiff besides himself examined two other witnesses. The appellant/plaintiff and his witnesses were cross examined by both, the counsel for the respondents/defendants no.1 to 8 and counsel for the respondent/defendant no.9. However thereafter the respondents/defendants no.1 to 8 stopped appearing and were proceeded against under Order 17 Rule 2 CPC vide order dated 28th August, 1989 and the suit fixed for evidence of the respondent/defendant no.9. The respondent/defendant no.9 examined herself only in her defence and closed her evidence. 8. However thereafter the respondents/defendants no.1 to 8 stopped appearing and were proceeded against under Order 17 Rule 2 CPC vide order dated 28th August, 1989 and the suit fixed for evidence of the respondent/defendant no.9. The respondent/defendant no.9 examined herself only in her defence and closed her evidence. 8. The learned Sub Judge, in the impugned judgment, has found/observed/held:- (I). that since the Agreement to Sell was admitted by the respondents/defendants no.1 to 8, it could be read in evidence and had also been properly proved by the appellant/plaintiff; (II). a perusal of the Agreement to Sell showed that it did not contain any clause for specific performance of the contract and only provided that in case the respondents/defendants no.1 to 8 committed default, then the appellant/plaintiff can claim damages to the tune of Rs.5,000/-; (III). so the appellant/plaintiff could not ask for specific performance of the contract; (IV). however since the respondents/defendants no.1 to 8 had even before the expiry of one month’s time given under the agreement to sell to the appellant/plaintiff for purchase of the property, sold the property to the respondent/defendant no.9, this fact alone showed that the respondents/defendants no.1 to 8 were in default of performance of their part of the contract and the appellant/plaintiff was thus entitled to recover damages from the respondents/defendants no.1 to 8 as agreed and to also receive refund of earnest money of Rs.5,000/-; the appellant/plaintiff was thus entitled to recover a sum of Rs.10,000/- from the respondents/defendants no.1 to 8; (V). that the appellant/plaintiff in his affidavit had failed to prove that the respondent/defendant no.9 had knowledge of the Agreement to Sell in his favour; (VI). that though the plea of the appellant/plaintiff in the plaint was that the respondent/defendant no.9 had come to see the property along with her husband but in evidence it was suggested that the respondent/defendant no.9 had come along with her sister’s husband; (VII). that the respondent/defendant no.9 had denied ever visiting the property or having been informed of the Agreement to Sell; and, (VIII). that the appellant/plaintiff had thus failed to establish any cause of action against the respondent/defendant no.9. accordingly, the relief of specific performance was declined and the alternate relief of recovery of money granted. 9. The appeal was on 10th January, 1991 admitted for hearing. that the appellant/plaintiff had thus failed to establish any cause of action against the respondent/defendant no.9. accordingly, the relief of specific performance was declined and the alternate relief of recovery of money granted. 9. The appeal was on 10th January, 1991 admitted for hearing. On 11th July, 1997 the application of the appellant/plaintiff for stay of eviction proceedings instituted as well as for early hearing of the appeal was dismissed. The appeal was on 19th November, 2008 dismissed in default of appearance of the appellant/plaintiff. After more than seven months, in or about July, 2009 application for substitution of legal heirs of the appellant/plaintiff (who died on 26th March, 2009) and for condonation of delay in applying therefor and applications for restoration of the appeal and for condonation of delay in applying therefor were filed pleading that the legal heirs of the deceased appellant/plaintiff were unaware of the proceedings and the Advocate engaged by the appellant/plaintiff had also died and learnt of the proceedings upon receiving notice of an application for early hearing of a Revision Petition being C.R. No.410/2003 arising from the eviction proceedings. Notices of the said applications were issued and the proceeding remained pending for the last nearly four years at the said stage. Even though the respondents/defendants no.1 to 8 were ex parte before the Trial Court and had not entered appearance in this appeal also but still repeated steps were taken by the legal heirs of the appellant/plaintiff for their service and ultimately they were got served by publication and have not appeared. The respondent/defendant no.9 has contested the application by filing a reply inter alia pleading the negligence of the deceased appellant/plaintiff and his legal heirs. 10. Considering that the appeal is of the year 1990, the counsel for the legal heirs of the deceased appellant/plaintiff and for the respondent/defendant no.9 were asked to address arguments on the merits of the appeal also, while addressing arguments on the applications for substitution and for restoration of the appeal to its original position and have been so heard. 11. The counsel for the appellant/plaintiff has contended:- (a). that the onus to prove that the respondent/defendant no.9 was the bona fide purchaser for value without notice of the prior Agreement to Sell in favour of the appellant/plaintiff was on the respondent/defendant no.9; (b). 11. The counsel for the appellant/plaintiff has contended:- (a). that the onus to prove that the respondent/defendant no.9 was the bona fide purchaser for value without notice of the prior Agreement to Sell in favour of the appellant/plaintiff was on the respondent/defendant no.9; (b). that since the family of the appellant/plaintiff was in possession of the property, the respondent/defendant no.9 ought to have been put to enquiry and on making such enquiry would have learnt of the prior Agreement to Sell in favour of the appellant/plaintiff; (c). reliance in this regard is placed on:- (i). Section 3 of the Transfer of Property Act, 1882 providing that a person is said to have notice of a fact when he actually knows that fact or when but for the willful abstention from an enquiry or search which he ought to have made or gross negligence, he would have known it and on Explanation II thereto deeming notice to a person acquiring immovable property of the title if any of any person in possession of such property; (ii). definition of ‘good faith’ in Section 52 of the Indian Penal Code, 1860 as being not which is done without due care and attention; (iii). definition of ‘good faith’ in Section 3 (22) of the General Clauses Act, 1897 as thing done honestly, whether it is done negligently or not; (iv). R.K. Mohammed Ubaidullah Vs. Hajee C. Abdul Wahab (2000) 6 SCC 402 – laying down that the onus to prove good faith is on the purchaser who takes the plea and that it is essential that the subsequent purchaser should make an enquiry as to the title or interest of the person in actual possession and of further interest if any acquired by him; (v). Guruswamy Nadar Vs. P. Lakshmi Ammal (2008) 5 SCC 796 following R.K. Mohammed Ubaidullah supra; (vi). Har Narain Vs. Mam Chand (2010) 13 SCC 128 - laying down that enquiry at the time of the subsequent transaction is material; and, (vii). Municipality of Bhiwani and Nizampur Vs. M/s. Kailash Sizing Works (1974) 2 SCC 596 also on what is good faith. (d). It is argued that the claim of the respondent/defendant no.9 of having purchased the property without even visiting the same itself establishes that the respondent/defendant no.9 is not a bona fide purchaser; (e). Municipality of Bhiwani and Nizampur Vs. M/s. Kailash Sizing Works (1974) 2 SCC 596 also on what is good faith. (d). It is argued that the claim of the respondent/defendant no.9 of having purchased the property without even visiting the same itself establishes that the respondent/defendant no.9 is not a bona fide purchaser; (e). that the collusion between the respondents/defendants no.1 to 8 and the respondent/defendant no.9 is writ large from the sale to the respondent/defendant no.9 for a consideration lesser than agreed with the deceased appellant/plaintiff; and, (f). reliance is placed on judgment dated 20th February, 2013 of the Supreme Court in Civil Appeal No.1457/2013 titled Mata Prasad Mathur Vs. Jwala Prasad Mathur on the aspect of condonation of delay in applying for substitution of the legal heirs of the deceased appellant/plaintiff. 12. The counsel for the respondent/defendant no.9 has contended that in view of the following clause in the Agreement to Sell, in which the respondents/defendants no.1 to 8 were described as the first party and the appellant/plaintiff as the second party:- “the parties have agreed to complete the sale transaction within one month of the signing of this Agreement. In case the second party backs out from this Agreement, the first party shall be entitled to forfeit the earnest money and if the first party commits a default in execution of Sale Deed, the first party shall be liable to refund the earnest money and pay a liquidated sum of Rs.5,000/- (Rupees Five Thousand Only) as damages.” the relief of specific performance is not available. It is also contended that the appellant/plaintiff having not sought the relief of cancellation of the sale in favour of the respondent/defendant no.9, is not entitled to any relief against the respondent/defendant no.9 in whom the title to the property now vests. 13. I may at the outset state that the Court of minimum pecuniary jurisdiction, after change in valuations of the Courts, to hear this appeal against the judgment and decree of the Court of the Sub Judge 1st Class would not be this Court but the Court of the District Judge/Addl. District Judge. However after the appeal has remained pending in this Court for 23 years without any counsel highlighting the said fact, it was not deemed expedient to at this stage transfer the appeal and the arguments were heard. 14. District Judge. However after the appeal has remained pending in this Court for 23 years without any counsel highlighting the said fact, it was not deemed expedient to at this stage transfer the appeal and the arguments were heard. 14. As far as the pending applications, for substitution of legal representatives of the deceased appellant/plaintiff and for restoration of the appeal dismissed in default on 19th November, 2008 and for condonation of delay in applying therefor are concerned, in the face of the admitted demise of the appellant/plaintiff on 26th March, 2009 i.e. within a few months of the date when the appeal was dismissed in default as well as the demise of the Advocate of the appellant/plaintiff, I am inclined to condone the delays in applying for substitution of legal representatives and for restoration of the appeal and also find the same to be a sufficient reason for non-appearance of the appellant/defendant on 19th November, 2008 when the appeal was dismissed in default The suit claim being for specific performance of an agreement of purchase of immovable property, the cause of action is also found to survive. Therefore the delays in applying for substitution of legal representatives and in applying for restoration of the appeal are condoned and the legal heirs of the deceased appellant/plaintiff are substituted in his place and the appeal restored to its original position. The amended memo of parties already filed is taken on record. None having appeared for the respondents/defendants no.1 to 8; they are proceeded against ex parte in this appeal. 15. As far as the merits of the appeal are concerned, as aforesaid the learned Sub Judge has, (i) held the Agreement to be not specifically enforceable; (ii) held the respondents/defendants no.1 to 8 to be in breach and resultantly liable for agreed compensation to the appellant/plaintiff; and, (iii) held the respondent/defendant no.9 to be bona fide purchaser for value without notice of the prior Agreement to Sell in favour of the appellant/plaintiff. 16. As far as the first of the aforesaid findings is concerned, though a two Judge Bench of Supreme Court in Dadarao Vs. Ramrao (1999) 8 SCC 416 had also held agreements providing for consequences of breach to be not specifically enforceable but subsequently another two Judge Bench in P. D’souza Vs. 16. As far as the first of the aforesaid findings is concerned, though a two Judge Bench of Supreme Court in Dadarao Vs. Ramrao (1999) 8 SCC 416 had also held agreements providing for consequences of breach to be not specifically enforceable but subsequently another two Judge Bench in P. D’souza Vs. Shondrilo Naidu (2004) 6 SCC 649 held the judgment in Dadarao to be per incuriam and observed that merely because the Agreement to Sell provides for payment by the sellers of compensation in the event of being in breach, does not take away the right of the purchaser to in law seek specific performance of the Agreement to Sell. Recently, in Man Kaur Vs. Hartar Singh Sangha (2010) 10 SCC 512 also it has been held that for an agreement purchaser to seek specific performance of a contract of sale relating to immovable property, it is not necessary that the contract should contain a specific provision that in the event of breach, the aggrieved party will be entitled to specific performance and the provision for damages is not intended to provide the vendor an option of paying money in lieu of specific performance. The impugned judgment thus, in so far as holding the agreement to sell to be not specifically enforceable for the reason of providing for compensation payable by respondents/defendants no.1 to 8 sellers in the event of breach or for the reason of the agreement not providing for specific performance, is erroneous. 17. There is no merit also in the contention of the counsel for the respondent/defendant no.9 of the appellant/plaintiff being required to seek the relief of cancellation of the sale in favour of the respondent/defendant no.9. The Supreme Court as far back as in Lala Durga Prasad Vs. Lala Deep Chand AIR 1954 SC 75 reiterated recently in Thomson Press (India) Ltd. Vs. Nanak Builders & Investors Pvt. Ltd. (2013) 5 SCC 397 held that there is no need to seek such cancellation or setting side and the plaintiff if found entitled to the relief of specific performance is entitled to a direction against the subsequent purchaser to join in the conveyance so as to pass on the title which resides in him to the plaintiff. 18. 18. Though the respondent/defendant no.9 in her written statement had taken a plea that the Agreement to Sell in favour of appellant/plaintiff is the result of collusion between appellant/plaintiff and respondents/defendants no.1 to 8 after sale in favour of respondent/defendant no.9 but appears to have not pressed the same. There is also no challenge to the finding of the learned Sub Judge of the respondents/defendants no.1 to 8 being in breach of the Agreement to Sell. Though there is no express finding of the appellant/plaintiff having been ready and willing but that impliedly follows. In the absence of challenge or any argument, I do not find any reason to disturb the said finding. 19. However for the appellant/plaintiff to be entitled to specific performance against respondent/defendant no.9, it has to be adjudicated whether the respondent/defendant no.9 who is admittedly a transferee for value, paid the sale consideration to respondents/defendants no.1 to 8 in good faith and without notice of agreement to sell in favour of appellant/plaintiff. The learned Trial Court has held the respondent/defendant no.9 to be such a transferee i.e. transferee for value who has paid money in good faith and without notice of the original contract. What needs to be adjudicated is whether such a finding is erroneous, to be disturbed in this appeal. Even if it were to be held that the respondent/defendant no.9 is not so, it will also have to be adjudicated whether discretion implicit in the grant of relief of specific performance is to be exercised in favour of appellant/plaintiff. 20. I have with this intent perused the evidence recorded. The appellant/plaintiff has proved the Agreement to Sell, receipt, legal notice got sent by him, reply of respondents/defendants no.1 to 8 thereto as well as the stamp papers purchased by him. His cross examination comprises only of suggestions as per the written statements of the respondents/defendants no.1 to 8 and respondent/defendant no.9. PW2 Shri Rohtas Kumar examined by the appellant/plaintiff is an attesting witness to the Agreement to Sell who proved payment of earnest money in cash at the time of execution thereof. He in his cross examination admitted that only the respondents/defendants no.2&3 and the appellant/plaintiff had signed the Agreement in his presence and the respondent/defendant no.1 and the respondents/defendants no.4 to 8 had not signed the Agreement in his presence or at the same time. He in his cross examination admitted that only the respondents/defendants no.2&3 and the appellant/plaintiff had signed the Agreement in his presence and the respondent/defendant no.1 and the respondents/defendants no.4 to 8 had not signed the Agreement in his presence or at the same time. The oral evidence of PW3 examined by the appellant/plaintiff is not material. The respondent/defendant no.9 in her deposition reiterated the contents of her written statement and proved the original Agreement to Sell and Sale Deed in her favour showing the total price paid by her as Rs.25,000/-and denied knowledge of prior Agreement in favour of the appellant/plaintiff. In cross examination she withstood her ground that though she knew that the property was tenanted but had neither gone to see the property nor was informed by the appellant/plaintiff of the prior Agreement to Sell in his favour. 21. Though specific performance of an agreement can only be against the parties to an agreement but Section 19(b) of the Specific Relief Act, 1963 enables specific performance also against a person claiming under a party to an agreement by a title arising subsequent to the agreement of which specific performance is claimed, except against a transferee for value who has paid his money in good faith and without notice of the original contract. 22. The learned Sub Judge has held that the respondent/defendant no.9 had no notice of the prior Agreement to Sell with the appellant/plaintiff. Though it was the case of the appellant/plaintiff that he himself had informed the respondent/defendant no.9 of such Agreement upon the respondent/defendant no.9 visiting the property prior to purchase but he learned Sub Judge has held the appellant/plaintiff to be unsuccessful in having proved so. The appellant/plaintiff had given his bare word on the said aspect. As against that there is on record a bare denial of the respondent/defendant no.9. The appellant/plaintiff in cross examination of the respondent/defendant no.9 could not shake her on this aspect. The appellant/plaintiff did not examine any independent witness to prove such visit by the respondent/defendant no.9. It is also not the case of the appellant/plaintiff that the appellant/plaintiff immediately after the said visit protested to the respondents/defendants no.1 to 8 as to why they were negotiating with others when they had an Agreement to Sell with the appellant/plaintiff, as the appellant / plaintiff in normal course of human behaviour would have done. It is also not the case of the appellant/plaintiff that the appellant/plaintiff immediately after the said visit protested to the respondents/defendants no.1 to 8 as to why they were negotiating with others when they had an Agreement to Sell with the appellant/plaintiff, as the appellant / plaintiff in normal course of human behaviour would have done. The appellant/plaintiff even in the notice preceding the suit did not state that the respondents/defendants no.1 to 8 had sent respondent/defendant no.9 to see the property. 23. Considering the custom of parda practiced amongst muslims specially of the locality to which the appellant/plaintiff as well as the respondent/defendant no.9 belong, the version of the appellant/plaintiff of having directly intimated so to the respondent/defendant no.9 is improbable. The appellant/plaintiff has not examined any other family member who may be present at the time of her visit, specially lady family members who may have interacted with the respondent/defendant no.9 during the visit. The likelihood of the appellant/plaintiff and his family members permitting strangers as the respondent/defendant no.9 and whosoever accompanying her inside their house is also improbable. The time of the visit has not been deposed and as to how the appellant/plaintiff could be said to be present in the house at that time. The appellant/plaintiff has not examined his father who is stated to be a tenant in the property. It cannot be lost sight of that the respondents/defendants no.1 to 8 denied that the appellant/defendant was a resident of the said premises and the appellant/plaintiff has not proved any document in that regard. Besides, there is the inconsistency on record as noticed by the leaned Sub Judge, of the appellant/plaintiff at one stage stating that the respondent/defendant no.9 had visited along with her husband and at the later stage stating that she had visited along with her sister’s husband. Thus, the version of the appellant/plaintiff of actual knowledge by respondent/defendant no.9 of Agreement to Sell in favour of appellant/plaintiff, cannot be accepted. The counsel for the appellant/defendant has also not argued so. His emphasis has been on the lack of enquiry by the respondent/defendant no.9 prior to purchase and the resultant inference of the respondent/defendant no.9 having not paid money in good faith and without notice. 24. The next question is, whether respondent/defendant no.9 can be said to have deemed notice of Agreement to Sell in favour of appellant/plaintiff. His emphasis has been on the lack of enquiry by the respondent/defendant no.9 prior to purchase and the resultant inference of the respondent/defendant no.9 having not paid money in good faith and without notice. 24. The next question is, whether respondent/defendant no.9 can be said to have deemed notice of Agreement to Sell in favour of appellant/plaintiff. The Supreme Court in R.K. Mohammed Ubaidullah relied upon by appellant/plaintiff in this regard held that a subsequent purchaser is required to inquire as to the title or interest of the person in actual possession of the property as on the date when the sale transaction is made in its favour and not merely of such person’s title when he entered into possession as a person after entering into possession in one capacity, say as a tenant, later on may become a usufructuary mortgagee or an agreement purchaser. The same view, besides in Guruswamy Nadar & Har Narain supra, is also found to have been followed in Sargunam Vs. Chidambaram (2005) 1 SCC 162. However the claim of the appellant/plaintiff in the present case of being in possession of the property is not in his own right but as a son of the tenant in possession of the property. Notice imputed, in the judgments aforesaid, of title, is of the person in possession in his own right and not of title of others who may be in use and occupation of the premises along with such person in possession in his own right. The appellant/plaintiff as aforesaid has utterly failed to show/establish the knowledge or involvement in purchase, of his father who was the tenant in possession of the property. I am, in the facts and circumstances of the case unable to extend the principle of law enunciated in the judgments supra of deemed notice of title of the family members or the acquaintances of the person in possession of the property. It would have been a different matter had the father of the appellant/plaintiff deposed that the purchase was in his knowledge and to merge the title as tenant into title as purchaser of the property. 25. I am therefore unable to impute deemed notice even to the respondent/defendant no.9 of the Agreement to Sell in favour of the appellant/plaintiff. 26. It would have been a different matter had the father of the appellant/plaintiff deposed that the purchase was in his knowledge and to merge the title as tenant into title as purchaser of the property. 25. I am therefore unable to impute deemed notice even to the respondent/defendant no.9 of the Agreement to Sell in favour of the appellant/plaintiff. 26. I am also unable to find the conduct of the respondent/defendant no.9 lacking in good faith though she may be negligent in not visiting the property prior to purchase and buying it merely on representations of the respondents/defendants no.1 to 8. However negligence is not antithesis of good faith. 27. Even otherwise the relief of specific performance is a discretionary relief and I am for the reasons herein below appearing not inclined to exercise the discretion in favour of the appellant/plaintiff:- (a). it cannot be lost sight of that the father of the appellant/plaintiff was a tenant in the property at a meagre rent of Rs.4/- per month but according to the appellant/plaintiff himself, for half a century prior to the execution of the Agreement to Sell. Judicial notice can be taken of the fact that till then the Delhi Rent Control Act, 1958 had not been amended (which was amended in the year 1988) and the possibility of the respondents/defendants no.1 to 8 prior thereto evicting the father of the appellant/plaintiff from the property was remote. (b). it stands established that the respondent/defendant no.9 has paid a total consideration amount of Rs.25,000/- to the respondents/defendants no.1 to 8 for the property i.e. Rs.9,000/- more than what the appellant/plaintiff had offered. (c). the two transactions are nearly simultaneous i.e. within few days of each other and thus obviously the price offered by the appellant/plaintiff was depressed price, taking advantage of the tenancy in favour of the father of the appellant/plaintiff. (d). thus the terms of the contract or the conduct of the parties at the time of entering into the contract gave the appellant/plaintiff an unfair advantage over the respondents/defendants no.1 to 8 within the meaning of Section 20(2)(a) of the Specific Relief Act and make specific performance inequitable within the meaning of Section 20 (2)(c) of the said Act. (e). thus the terms of the contract or the conduct of the parties at the time of entering into the contract gave the appellant/plaintiff an unfair advantage over the respondents/defendants no.1 to 8 within the meaning of Section 20(2)(a) of the Specific Relief Act and make specific performance inequitable within the meaning of Section 20 (2)(c) of the said Act. (e). it is even otherwise not considered reasonable to now in appeal exercise the discretion for specific performance of an agreement which is now three decades old and when the ground realities have changed substantially with the amendment to the Rent Act and with the phenomenal change in values of real estate. (f). the appellant/plaintiff, perhaps taking advantage of occupation of the premises by his father as a tenant, is not found to have acted very diligently in the matter; as aforesaid the applications for substitution of legal representatives and for restoration were not pressed, expedited and were unnecessarily kept pending for about four years; a perusal of the order sheet shows laxity in taking steps for service of the respondents/defendants no.1 to 8. The appellant/plaintiff appears to have used the pendency of these proceedings to delay eviction proceedings as a tenant. The Supreme Court in Parakunnan Veetil Joseph’s Son Mathew Vs. Nedumbara Kuruvilas’s Son 1987 Supp SCC 340 held that motive behind litigation is a relevant factor in exercise of discretion for grant of relief of specific performance. (g). that the original appellant/plaintiff who had entered into the agreement is now no more and the case of his legal heirs is that they did not even know of the case and learnt of the same only on receipt of the notice in the application for early hearing in the eviction proceedings, thus though the right to sue may be surviving but it is not as if the present appellants/plaintiffs who are the legal heirs of the original appellant/plaintiff who had entered into the agreement of which specific performance was sought were pinning their hopes on the same. They are thus not found to have a live interest in having the agreement specifically enforced within the meaning ascribed by the Supreme Court in para 39 of Satya Jain Vs. Anis Ahmed Rushdie (2013) 8 SCC 131 . They are thus not found to have a live interest in having the agreement specifically enforced within the meaning ascribed by the Supreme Court in para 39 of Satya Jain Vs. Anis Ahmed Rushdie (2013) 8 SCC 131 . Per contra he respondent/defendant no.9 though having paid purchase consideration of Rs.25,000/-for the property nearly three decades ago is still fighting proceedings for eviction of the tenant in the premises and would suffer further hardship if were to be now deprived even of the title to the property. Such ground prevailed with the Supreme Court in V. Muthusami Vs. Angammal (2002) 3 SCC 316 to decline specific performance. (h). that though the conduct of the respondent/defendant no.9 in not making enquiries from the tenant in occupation of the property or in not visiting the property may be negligent but the same cannot be said to be lacking in good faith. The appellant/plaintiff set up a false case of the respondent/defendant no.9 having visited the property, he having informed her of the Agreement to Sell and of the respondent/defendant no.9 having purchased the property for a consideration lesser than offered by the appellant/plaintiff when in the facts of the case it is unlikely that he did not know the correct facts. The Supreme Court in Lourdu Mari David Vs. Louis Chinnaya Arogiaswamy (1996) 5 SCC 589 held false averments in pleadings to disentitle the plaintiff to the relief of specific performance. (i). the Supreme Court in A.C. Arvlappan Vs. Ahalya Naik (2001) 6 SCC 600 held that discretion will not be exercised in favour of plaintiff if it would be inequitable to grant specific performance; (j). the Supreme Court recently in Vimaleshwar Nagappa Shet Vs. Noor Ahmed Shariff (2011) 12 SCC 658 held that value of property escalates very fast in urban areas and it would not be equitable to grant specific performance after the lapse of a long period. The subsequent judgment in Satya Jain Vs. Anis Ahmed Rushdie (2013) SCC 131 supra also though not disagreeing with the said proposition sought to balance the equities by directing sale at prevalent market value, which was directed to be determined; that however would not be specific performance. 28. The subsequent judgment in Satya Jain Vs. Anis Ahmed Rushdie (2013) SCC 131 supra also though not disagreeing with the said proposition sought to balance the equities by directing sale at prevalent market value, which was directed to be determined; that however would not be specific performance. 28. Thus besides affirming the finding of the learned Sub Judge of the appellant/plaintiff being not entitled to the relief of specific performance against the respondent/defendant no.9, independently of the same also it is found that the appellant/plaintiff is not entitled to the discretion implicit in the grant of relief of specific performance. 29. No merit is thus found in the appeal which is dismissed; however in the facts no costs. Decree sheet be drawn up.