JUDGMENT Hon’ble Pankaj Mithal, J.—One Narsingh Prasad Gupta was the original owner of the suit property which is a dwelling house. In the said house one Shyam Kishore Misra, was living as a tenant. At one point of time Narsingh Prasad Gupta was in need of financial help. He borrowed a sum of Rs. 4000/- from the tenant Shyam Kishore Misra. An agreement dated 4.11.1970 was entered into between them providing that Narsingh Prasad Gupta would return the borrowed amount of Rs. 4000/- with interest @ 2% per month to Shyam Kishore Misra within a period of 8 years and in the event the amount is not returned he would transfer the said house in favour of his heirs/nominees for a sale consideration of Rs. 15000/-. In the event of non-payment of the borrowed amount with interest within the stipulated time the agreement w.e.f. 5.11.1978 would be an agreement to sell the property and that Narsingh Prasad Gupta would execute the sale-deed within three years thereafter on receiving the balance sale consideration of Rs. 8,210/- after adjusting a sum of Rs. 6,790/- as the principal amount borrowed with interest. 2. The aforesaid Naringh Prasad Gupta on 20.3.1975 also executed a registered agreement to transfer the aforesaid dwelling house in favour of Smt. Lal Pari for a sale consideration of Rs. 16,100/-. 3. On the basis of the above agreement Smt. Lal Pari instituted original suit No. 128 of 1978 for specific performance of the agreement to sell against Narsingh Prasad Gupta. During the pendency of the suit Narsingh Prasad Gupta expired and his heirs namely his widow Smt. Munni Devi and the son Ramesh Chandra were substituted. They compromised the matter with Smt. Lal Pari and on the basis of compromise deed the suit was finally decided/decreed on 31.1.1981. According to the compromise decree, a sale-deed transferring the dwelling house was executed on 30.6.1981 by the heirs of Narsingh Prasad Gupta in favour of Smt. Lal Pari. 4. Before the above decree and the sale-deed, the sons of the tenant Shyam Kishore Misra, namely Shiv Mohan Misra and Kripa Shankar Misra on the basis of the agreement dated 4.11.1970 filed original suit No. 3 of 1981 for a decree of specific performance alleging that Narsingh Prasad Gupta failed to return the borrowed amount with interest and therefore, a sale-deed of the said house be executed in their favour. The aforesaid suit was decreed ex parte on 24.4.1981 against the heirs of Narsingh Prasad Gupta. 5. At this juncture, the heirs of the tenant Shyam Kishore Misra ie. Shiv Mohan Misra and Kripa Shankar Misra filed another original suit No. 143 of 1981 for the cancellation of the sale-deed dated 30.6.1981 executed by the heirs of Narsingh Prasad Gupta in favour of Smt. Lal Pari pursuant to the decree in original suit No. 128 of 1978. 6. This probably become necessary as it was not possible to execute the ex parte decree without getting the above sale-deed ineffective. 7. The above suit after contest was dismissed on 30.7.1985 but on appeal being preferred, was decreed on 30.6.1986. 8. Aggrieved by the decree so passed by the appellate Court cancelling the sale-deed dated 30.6.1981, Smt. Lal Pari preferred this second appeal. 9. The appeal was admitted. The relevant portion of the order admitting the appeal reads as under : “The principal question arising in this appeal is about the legality and the effect of the alleged agreement subsequent to the agreement of sale dated 4.11.1970 and whether it is enforceable.” The order states that the above aspect raises a substantial question of law. 10. The appeal came up for hearing on several occasions and on one of them i.e. 2.9.2014, the Court after hearing the parties was pleased to reformulate the following substantial questions of law : “1. Whether the document dated 4.11.1970 can be termed to be an agreement to sell? If yes, then from which date it has become enforceable? 2. Whether the registered agreement to sell dated 20.3.1975 can be termed to be a subsequent agreement and whether it is legally enforceable? 3. Whether the agreement dated 4.11.1970 is a mortgage by conditional sale as per Section 58 (c) of the Transfer of Property Act? 4. Whether a Contingent Contract is enforceable particularly when it is a void condition as per Section 31 of the Contract Act, 1872? 5. Whether a beneficiary under an agreement is competent to sue one of the parties to the agreement without impleading all the parties to the agreement? As such suit is not maintainable? 6. 4. Whether a Contingent Contract is enforceable particularly when it is a void condition as per Section 31 of the Contract Act, 1872? 5. Whether a beneficiary under an agreement is competent to sue one of the parties to the agreement without impleading all the parties to the agreement? As such suit is not maintainable? 6. Whether the appellate can be said to be purchaser with notice when admittedly from the date of registered agreement to sell dated 20.3.1975 till the passing of decree in Original Suit No. 128 of 1978 on 30.1.1975 there was a notice to appellant about institution of Original Suit No. 3 of 1981 by Shiv Mohan Misra?” 11. I have heard Sri Manish Goyal, learned counsel for the defendant appellant and Sri Vrindavan Misra, learned counsel for the plaintiff respondent. 12. The submission of Sri Goyal, is that the agreement dated 4.11.1970 is void as it is contingent in nature. It stood frustrated in view of the finding of the Court of first instance that the borrowed amount with interest was returned by Narsingh Prasad Gupta and the appellate Court is not justified in reversing the said finding. He further submits that the aforesaid agreement if at all is treated to be valid or an agreement for sale of property, it would be an agreement for sale of property only w.e.f. 5.11.1978 whereas the agreement of sale in favour of defendant appellant is of an earlier date i.e. 20.3.1975 which has to be given precedence. The suit of defendant appellant was decreed on 31.1.1981 before the ex parte decree in favour of plaintiffs respondents was passed in suit No. 3 of 1981. Since the sale-deed was executed on the basis of the decree passed in favour of defendant appellant it was not liable to be cancelled on the grounds pleaded. 13. Sri Vrindawan Mishra, learned counsel appearing for the plaintiffs respondents in defence submits that the appellate Court below is the last Court of fact. The finding recorded by the lower appellate Court is not liable to be disturbed in second appeal unless any perversity is established therein. In the light of the finding returned by the lower appellate Court the agreement dated 4.11.1970 never came to an end and therefore, the suit of the plaintiff respondents for its specific performance has rightly been decreed. The finding recorded by the lower appellate Court is not liable to be disturbed in second appeal unless any perversity is established therein. In the light of the finding returned by the lower appellate Court the agreement dated 4.11.1970 never came to an end and therefore, the suit of the plaintiff respondents for its specific performance has rightly been decreed. The said decree cannot be made redundant only for the reason that the defendant appellant had obtained a sale-deed in respect of the same property despite notice of the agreement dated 4.11.1970. The agreement in favour of the plaintiffs respondents was of much earlier date i.e. 4.11.1970 and requires precedence. Even the decree which has been passed in favour of the plaintiff respondent for specific performance is prior in time to the execution of the sale-deed dated 30.6.1981 in favour of the defendant appellant. 14. Learned counsel for the parties after arguments at length accepted that all substantial questions of law framed earlier are not actually the substantial questions of law raising on the facts of the case and that the Court may reformulate them. 15. On reconsideration, the parties were informed that the appeal can be decided on the basis of the following points : (i) Whether the agreement dated 4.11.1970 is void being a contingent contract? (ii) Whether it stands frustrated and is unenforceable in law? (iii) Whether the sale-deed dated 30.6.1981 is liable to be cancelled as pleaded? 16. On the consensus of the counsel, the only substantial question arising in this appeal is whether the sale-deed dated 30.6.1981in respect of the dwelling house in question executed in favour of the defendant appellant Smt. Lal Pari is liable to be cancelled on the grounds pleaded in the plaint. 17. This question takes into its fold the other two points as well. 18. Learned counsel for the parties, fully aware of the above aspects of the matter and the substantial question of law as formulated above, addressed the Court accordingly leaving all other aspects or the questions framed earlier virtually meaningless. 19. Even though the substantial questions of law which were formulated earlier were not actually addressed but I consider it appropriate to briefly deal with each one of them lest it may be taken that the Court failed to address the substantial questions of law once framed in deciding the appeal. 20. 19. Even though the substantial questions of law which were formulated earlier were not actually addressed but I consider it appropriate to briefly deal with each one of them lest it may be taken that the Court failed to address the substantial questions of law once framed in deciding the appeal. 20. At the time of admission, the substantial question of law which was formulated was in respect to the legality and effect of the agreement dated 4.11.1970 and whether it is enforceable. This question of law covers substantial questions No. 1 and 4 which were formulated on 2.9.2014 by the Court ie. whether the agreement dated 4.11.1970 can be recognised as an agreement to sell if so from which date and whether it is void in view of Section 31 of the Indian Contract Act, 1872 (hereinafter referred to as the Contract Act)? 21. All the three questions referred to above being interconnected are dealt with together. 22. There is no dispute that the owner of the house Narsingh Prasad Gupta had executed the agreement dated 4.11.1970 in favour of the tenant Shyam Kishore Mishra. The said agreement states that Narsingh Prasad Gupta had borrowed a sum of Rs. 4,000/- from Shyam Kishore Mishra on interest @ Rs. 2/- per month ie. @ 24% per annum which was to be returned within 8 years. 23. On failure to return it within the above time, the agreement was to be treated as an agreement to sell the dwelling house for a sale consideration of Rs. 15000/- whereupon Narsingh Prasad Gupta was liable to execute the sale-deed in respect of the said house in favour of the heirs of Shyam Kishore Mishra -within three years after receiving the balance sale consideration of Rs. 8,210/. 24. A plain reading of the above agreement makes it clear that the agreement is in two parts. The first is in connection with the borrowing and the second part is in respect to the sale of the dwelling house. The agreement itself provides that the second part of the agreement will come into effect with 5.11.1978 i.e. on the expiry of the period of 8 years from the date of its execution only if the amount borrowed with interest is not repaid.The second part though dependent upon the first part of the agreement but is otherwise in the shape of a separate agreement. 25. 25. Section 31 of the Contract Act provides as under : “31. “Contingent contract” defined :A “contingent contract” is a contract to do or not to do something, if some event, collateral to such contract, does or does not happen.” 26. The aforesaid section has to be read alongwith Section 32 of the Contract Act which is as follows : “32. Enforcement of contracts contingent on an event happening :Contingent contracts to do or not to do anything if an uncertain future event happens, cannot be enforced by law unless and until that event has happened. If the event becomes impossible, such contracts become void.” 27. A reading of the above two provisions amply demonstrates that a contingent contract becomes void and cannot be enforced unless the event mentioned therein happens or does not happens and the event stipulated in the contingent contract becomes impossible. The second part of the agreement dated 4.11.1970 is an independent contract which comes into effect from 5.11.1978 if the amount borrowed with interest is not paid. It could be regarded as void if the first part becomes impossible of performance. 28. There is no positive evidence on record from either side with regard to repayment of the borrowed amount with interest. The Court of first instance only in view of one subsequent tenancy agreement dated 31.3.1979 between the heirs of Narsingh Prasad Gupta and the heirs of tenant Shyam Kishore Mishra drew an inference that the borrowed amount with interest was probably returned as in the said agreement there was no reference or mention of the earlier agreement dated 4.11.1970 between the parties probably for the reason that it stood satisfied. 29. The appellate Court as a last Court of fact, reversed the aforesaid finding on the ground that in the absence of any positive evidence to show the repayment of the borrowed amount as per the agreement dated 4.11.1970, the Court below was in error in drawing inference on the basis of the subsequent agreement of tenancy dated 31.3.1979. 30. The aforesaid reasoning of the appellate Court does not suffer from any error of law for the reason that the burden to prove that the payment under the agreement had been made was upon the party asserting the payment which was not discharged. 30. The aforesaid reasoning of the appellate Court does not suffer from any error of law for the reason that the burden to prove that the payment under the agreement had been made was upon the party asserting the payment which was not discharged. Any inference on the basis of a subsequent agreement only for the reason that it fails to mention about the earlier agreement cannot be regarded as sufficient to draw a presumption that the amount was repaid. 31. The finding of the appellate Court in this regard that the second part of the agreement was legal and valid and become enforceable before the Court of law for a period of three years from 5.11.1978 is undoubtedly a finding of fact and even if some doubt regarding this finding is raised, it cannot be disturbed and substituted in second appeal which is only for adjudicating the substantial questions of law if any arising in the appeal. 32. In view of above finding of the appellate Court, the argument that the agreement dated 4.11.1970 stood frustrated is of no substance. 33. In the light of the above discussion it is held that the agreement dated 4.11.1970 is an agreement to sell w.e.f. 5.11.1978 and is not void under Section 31/32 of the Contract Act. 34. This concludes the substantial question formulated at the time of admission of the appeal and substantial questions of law No. 1 and 4 framed on 2.9.2014. 35. The substantial question of law No. 2 formulated on 2.9.2014 is regarding agreement to sell dated 20.3.1975 namely; whether it is a subsequent agreement and is legally enforceable. 36. The parties agree that it is an agreement to sell. Thus, there is no dispute regarding its nature. 37. The aforesaid agreement is dated 20.3.1975. It has been executed subsequent to the agreement dated 4.11.1970. However, as discussed in the earlier part of the judgment, the agreement dated 4.11.1970 stood converted into an agreement to sell w.e.f. 5.11.1978. In this sense of the matter the agreement to sell dated 20.2.1975 cannot be regarded as a subsequent agreement vis-a-vis the agreement dated 4.11.1970 in so far as it relates to transfer of the property. 38. The above aspect of the matter is otherwise of no purpose as nothing turns upon it. In this sense of the matter the agreement to sell dated 20.2.1975 cannot be regarded as a subsequent agreement vis-a-vis the agreement dated 4.11.1970 in so far as it relates to transfer of the property. 38. The above aspect of the matter is otherwise of no purpose as nothing turns upon it. The parties admit existence of two agreements to sell one dated 20.3.1975 and the other dated 4.11.1970 which became enforceable as an agreement to sell w.e.f. 5.11.1978. 39. Since both the agreements are admitted and have been duly executed they are legally enforceable in law. Accordingly, in deciding substantial question No. 2 as framed on 2.9.2014 it is held that the agreement to sell dated 20.3.1975 is not a subsequent agreement vis-a-vis agreement to sell dated 4.11.1970 which became enforceable from 5.11.1978 and that both of them are legally enforceable in law. 40. The substantial question No. 3 formulated on 2.9.2014 as to whether the agreement dated 4.11.1970 is a mortgage by conditional sale under Section 58(c) of the Transfer of Property Act, 1882 stands concluded by the findings of the lower appellate Court which actually have not been assailed before me. 41. It was held that the amount borrowed under the agreement was not secured by the mortgage of the property as no interest in the house was transferred converting it into a mortgage. The agreement for sale was a separate transaction. 42. None of the parties have addressed the Court on the above aspect of the matter. 43. In view of above, the agreement dated 4.11.1970 has rightly not held to be a mortgage and the decision of the lower appellate Court in this regard is affirmed. 44. The above discussion also covers the two aspects which have been referred to by me before the substantial question of law required to be adjudicated upon. The conclusion in respect of the above two point is that the agreement dated 4.11.1970 is not void and it does not stand frustrated or becomes unenforceable in law. 45. This takes me to the real substantial question of law as formulated by me above ie. whether the sale-deed dated 30.6.1981 in respect of the dwelling house in question executed in favour of the defendant appellant Smt. Lal Pari is liable to be cancelled on the grounds pleaded in the plaint? 46. 45. This takes me to the real substantial question of law as formulated by me above ie. whether the sale-deed dated 30.6.1981 in respect of the dwelling house in question executed in favour of the defendant appellant Smt. Lal Pari is liable to be cancelled on the grounds pleaded in the plaint? 46. In connection with the above substantial question of law it is important to first consider the pleadings of the parties specially the plaint to ascertain the grounds taken for the cancellation of the sale-deed dated 30.6.1981. 47. It may also be relevant to remind here that the sale-deed dated 30.6.1981 was executed in pursuance to a compromise decree dated 31.1.1981 passed in original suit No. 128 of 1978. The execution of the said sale-deed is not in dispute. 48. The plaint reveals that the plaintiff respondents want cancellation of the above sale-deed for the reason that they had a prior agreement to sell in their favour, the ex parte decree of specific performance which exists in their favour is also an earlier date qua the sale-deed dated 30.6.1981 and that the defendant appellant is not the bona fide purchaser in good faith. These are also precisely the grounds on which the appellate Court below has ordered the cancellation of the aforesaid sale-deed. 49. I am afraid in the absence of any ground of fraud, undue influence misrepresentation, coercion, in-personification or non-payment of sale consideration or any other irregularity in the execution of the sale-deed, a sale-deed can be cancelled simply for the reason that the plaintiffs respondents have a better claim for getting the sale-deed executed in their favour. 50. Section 31 of the Specific Reliefs Act, 1963 provides for the cancellation of a written instrument if it is void and voidable and if left outstanding may cause the party a serious injury. An instrument can be declared to be voidable or void for the reasons that it has been executed by a person not legally competent or under coercion, by exercise of undue influence, misrepresentation without free consent, fraud or for unlawful purpose etc. but these are not the grounds pleaded for seeking the cancellation of the above sale-deed. 51. An instrument can be declared to be voidable or void for the reasons that it has been executed by a person not legally competent or under coercion, by exercise of undue influence, misrepresentation without free consent, fraud or for unlawful purpose etc. but these are not the grounds pleaded for seeking the cancellation of the above sale-deed. 51. The plaintiff respondents no doubt have an agreement dated 4.11.1970 which is prior in time to the agreement dated 20.3.1975 which exist in favour of the defendant appellant but the fact remains that the agreement dated 4.11.1970 became enforceable as an agreement to sell only w.e.f. 5.11.1978. Therefore, the agreement to sell which exist in favour of the plaintiff respondents is technically of a subsequent period and they do not have any better rights to claim its specific performance vis-a-vis the defendant appellant. Even assuming they have a better right or that the agreement to sell in their favour is of earlier date, then also they have no right to get the sale-deed unless the grounds permitted under Section 31 of the Specific Relief Act, 1963 are pleaded and established. 52. Both the parties having agreements to sell in their favour are entitle to enforce their agreements. In the event one succeeds in getting the agreement enforced first and obtains a sale-deed, the other cannot complain and get the said sale-deed cancelled on the ground that he was having a better right which was ignored. Having a better right to get the sale-deed executed is not a ground provided in Law for the cancellation of the sale-deed. The only remedy available to the other party in such a situation is that of a suit for damages against the vendor. A sale-deed which has been executed pursuant to the decree of the Court is not liable to be cancelled on the ground pleaded in the plaint in the absence of any finding of the appellate Court regarding any fraud, undue influence, misrepresentation, coercion, in-personification or any other the wrong in its execution. Therefore, the appellate Court below fell in grave error in cancelling the sale-deed for reasons not known in law. 53. In view of the aforesaid facts and circumstances, the answer to the substantial question of law arising in this appeal, in my opinion is that the sale-deed dated 30.6.1981 was not liable to be cancelled. 54. Therefore, the appellate Court below fell in grave error in cancelling the sale-deed for reasons not known in law. 53. In view of the aforesaid facts and circumstances, the answer to the substantial question of law arising in this appeal, in my opinion is that the sale-deed dated 30.6.1981 was not liable to be cancelled. 54. Shri Mishra, had heavily relied upon a Supreme Court decision in R.K. Mohammed Ubaidullah and others v. Hajee C. Abdul Wahab and others, AIR 2000 SC 1658, to contend that defendant appellant is not a bona fide purchaser. 55. The argument has no force. There was no issue before either of the Courts below about the bona fide of the defendant appellant in purchase of the suit properly. No evidence was adduced by the plaintiff respondent to prove that the defendant appellant is not a bona fide purchaser of the property in good faith for valuable consideration. She had purchased the property pursuant to the decree of the Court and apparently her bona fides cannot be doubted. 56. In the end for the reasons and the answer to the substantial questions of law, the judgment, order and decree of the lower appellate Court dated 30.8.1986 is set aside and the second appeal is allowed with costs upon the parties. ——————