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2017 DIGILAW 1276 (ALL)

SHANTI DEVI v. JAGDISH LAL

2017-05-12

SIDDHARTHA VARMA

body2017
JUDGMENT Hon’ble Siddhartha Varma, J.—This plaintiff’s second appeal has been filed against the judgement and decree of the First Appellate Court dated 4.5.1978. 2. The defendant-respondent IInd set who was a Bhumidhar of the property in question executed a sale-deed dated 24.9.1967 in favour of the respondent-defendant Ist set. On the very same day i.e. on 25.9.1967 the defendant-respondent Ist set executed an agreement to sell in favour of the defendant-respondent IInd set and agreed to re-convey the plot in question after two years to respondent-defendant IInd set Sri Kishan Lal against a payment of Rs. 5,000/-. On 3.7.1970, the respondent-defendant IInd set assigned his rights of re-conveyance under the agreement dated 25.9.1967 in favour of the plaintiff for a consideration of Rs. 8,000/- by a duly registered agreement. Thereafter plaintiff Shanti Devi who had got the right assigned in her favour of re-conveyance of the suit property, served a notice on 8.7.1970 on the defendant-respondent Ist set Sri Jagdish Lal expressing her desire of getting the property re-conveyed to herself. However, when there were no hopes of re-conveyance of the property in favour of the plaintiff, she served a final notice on 6.5.1971 on the defendant-respondent Ist set requesting him to attend the registration office at Hathras between 11:00 a.m. and 4:00 p.m. on 10.5.1971 so that he could execute a registered sale-deed in her favour as per the deed of re-conveyance dated 25.9.1967. However, when on 10.5.1971, the defendant-respondent Ist set did not turn up to execute the sale-deed in her favour, a suit being Suit No. 236 of 1971 was filed in the Court of Munsif, Hathras, which was decreed on 6.11.1975. Aggrieved thereby a first appeal was filed by the defendant-respondent Ist set Sri Jagdish Lal. Upon the first appeal being allowed the second appeal has now been filed. 3. The substantial questions of law which were framed by the Court at the time of admission were given as grounds No. 1,3 and 6 in the memo of appeal. In substance, as per the questions of law what has to be decided is as to whether the defendant-respondent IInd set Sri Kishan Lal could have re-assigned his right for re-conveyance of the property which was to come to him from the defendant respondent Ist set to the plaintiff and also as to whether the plaintiff was ready and willing to perform her part of the contract. 4. The counsel for the appellant/plaintiff relied on exhibits 10 and 11, that is, the deed of re-conveyance dated 25.9.1967 in favour of the defendant respondent IInd set by defendant-respondent Ist set and the deed of assignment in favour of the plaintiff dated 3.7.1970 and has stated that there could be no doubt that the right of re-conveyance to the defendant-respondent No. IInd set could be assigned to the plaintiff. He has stated that the only condition under which a right of re-conveyance could not have been assigned to the plaintiff was where the right was such which was absolutely personal to the defendant-respondent II set and was such that it could not have been exercised by a stranger. 5. Further, it has been argued by the counsel for the appellant that right from the time the suit was filed till it was decreed there was a definite case of the plaintiff that she was always ready and willing to perform her part of the contract and that the First Appellate Court had wrongly concluded that the plaintiff had not been able to prove that she was ready and willing to perform her part of the contract. In fact learned counsel submitted that the the plaintiff was, and is even today ready and willing to perform her part of the contract. 6. The finding regarding readiness and willingness, it has been submitted, by learned counsel for the appellant, was arrived at by the Appellate Court in an absolutely perverse fashion without there being an issue framed. He has submitted that the First Appellate Court has looked into such facts and evidence which had not even surfaced before it. In reply the counsel for the respondent Ist set has stated that the right which was being sought to be assigned could not have been assigned to a stranger to the contract and that the deed of re-conveyance by the defendant-respondent Ist set in favour of the defendant-respondent IInd set clearly showed that the right of repurchase was only with the defendant-respondent IInd set. Further, it has been submitted that the finding of readiness and willingness was correctly arrived at and that when evidence was there before the First Appellate Court, the finding could be given even when no issue was framed. 7. Further, it has been submitted that the finding of readiness and willingness was correctly arrived at and that when evidence was there before the First Appellate Court, the finding could be given even when no issue was framed. 7. The counsel for the respondent has, relying on Narayanan Rajendran and another v. Lekshmy Sarojini and others, (2009) 5 SCC 264 , submitted that when a second appeal, though was admitted on certain questions of law but, was in fact concluded by findings of fact then there would be absolutely no justification for this Court to disturb any finding of fact after the reappraisal of evidence. 8. I have perused the judgments of both the Courts below and have also heard the arguments advanced by the counsel for the appellant as also the respondents. According to me, the right which had accrued to the defendant-respondent IInd set by the re-conveyance deed on 25.9.1967 could definitely have been assigned to the plaintiff by the deed of assignment dated 3.7.1970. The re-conveyance deed contained no such condition which could show that the right which was being re-conveyed to the defendant-respondent IInd set, namely, Sri Kishan Lal was, in any manner, personal to him. A perusal of the re-conveyance deed also goes to show that it contained no such condition which could be only exercised by the respondent defendant IInd set or his heirs alone. The re-conveyance which was in favour of the defendant-respondent IInd set could have easily been assigned to the plaintiff. The decisions rendered by the Supreme Court in the cases of Jagtar Singh v. State of Punjab, AIR 1993 SC 2449 and Shyam Singh v. Daryao Singh(dead) by L.Rs. and others, AIR (2004) SC 348, which have been relied upon by the appellant were of the view that such assignment could always be made where the right was not personal and which could be exercised by a stranger. In fact Section 15 of the Specific Relief Act, 1963, itself is absolutely clear on this issue and is, thus, being reproduced here as under: 15. In fact Section 15 of the Specific Relief Act, 1963, itself is absolutely clear on this issue and is, thus, being reproduced here as under: 15. Who may obtain specific performance—Except as otherwise provided by this Chapter, the specific performance of a contract may be obtained by - (a) Any party thereto; (b) the representative-in-interest or the principal, of any party thereto: Provided that where the learning, skill, solvency or any personal quality of such party is a material ingredient in the contract, or where the contract provides that his interest shall not be assigned, his representative in interest or his principal shall not be entitled to specific performance of the contract, unless such party has already performed his part of the contract, or the performance thereof by his representative in interest, or his principal, has been accepted by the other party; 9. In this connection the decision cited by the learned counsel for the respondent, namely, Harkisandas Bhagwandas and others v. Bai Dhanoo, AIR 1934 Bombay 171, also lays down a proposition which is similar to the one which has been enunciated by the Supreme Court in the decisions cited in the preceding paragraphs. The second argument of the learned counsel for the appellant that the plaintiff was always ready and willing to perform her part of the contract also appears to be correct. 10. A perusal of the Section 16 (c) of the Specific Relief Act, 1963, which reads here as under : 16.(c)”who fails to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than terms the performance of which has been prevented or waived by the defendant.” makes it evident that apart from a specific averment in the pleadings that the plaintiff was ready and willing to perform her part of the contract, readiness and willingness could also be concluded from the conduct of the parties, attendant circumstances and the evidence on record. The decisions in Narinderjit Singh v. North Star Estate Promoters Limited, (2012) 5 SCC 712 ; J. Samuael and others v. Gattu Mahesh and others, (2012) 2 SCC 300 and Sarda Prasad Singh v. Sheo Shnakar Lal, 1982 ACJ 80, also are of this view. 11. The decisions in Narinderjit Singh v. North Star Estate Promoters Limited, (2012) 5 SCC 712 ; J. Samuael and others v. Gattu Mahesh and others, (2012) 2 SCC 300 and Sarda Prasad Singh v. Sheo Shnakar Lal, 1982 ACJ 80, also are of this view. 11. The First Appellate Court delved into the issue of readiness and willingness and despite the fact that there was an averment in the plaint and there were enough attendant circumstances and evidence on record to show that the plaintiff was always ready and willing to perform her part of the contract, strangely enough concluded that the plaintiff was not ready and willing to perform her part of the contract. Right from the time, the plaintiff served a notice on the defendant-respondent on 6.5.1971 till the filing of the suitt there were any number of evidence and surrounding circumstances which went to show that the plaintiff was always ready and willing to perform her part of the contract. 12. In the instant case non consideration of the evidence on record and the wrong assessment of a large number of them has not only resulted in a perverse finding but has done a great injustice to the plaintiff. 13. Upon the consideration of material on record, following facts emerge. 1. The notice dated 6.5.1971 requested the defendant-respondent to be present on 10.5.1971 between 11:00 am and 4:00pm in the office of the registrar so that the sale-deed could be executed. 2. On 10.5.1971, the husband of the plaintiff appellant reached the office of the Registrar and also moved an application before the sub-registrar. 3. The husband of the plaintiff Sri Babu Singh has stated on oath about his presence in the office of the Registrar. 4. Though, the Defendant-Respondent Ist set, Sri Jagdish Lal has not tried to disprove the presence of the husband of the plaintiff in the Office of the Registrar, the First Appellate Court, on its own, on the basis of surmises and conjunctures concluded that the plaintiff was not ready and willing to perform her part of the contract. 5. The husband of the plaintiff, to show the readiness and willingness of the plaintiff, also stated on oath that the plaintiff had sold some of her personal properties for Rs. 25,000/- so that she could pay the consideration of the sale to the defendant-respondent Ist set. 5. The husband of the plaintiff, to show the readiness and willingness of the plaintiff, also stated on oath that the plaintiff had sold some of her personal properties for Rs. 25,000/- so that she could pay the consideration of the sale to the defendant-respondent Ist set. This aspect was also not considered by the First Appellate Court. 14. The Supreme Court in Hafazat Hussain S/o Mubarak Hussain v. Abdul Majeed S/o Wali Mohd. Alias Sheikh Ballan and others, 2001(7) SCC 189 and Dinesh Kumar v. Yusuf Ali, AIR 2010 SC 2679 and this High Court in Jhuri Singh v. Ram Kumar Singh and another, 2002 (2) ARC 214 , have laid down that in the event of there being perversity in the finding of the First Appellate Court, this High Court while deciding a Second Appeal can, after reappraisal of evidence, substitute its own findings. Paragraph No. 25 of AIR 2010 SC 2679 would be relevant which reads as under : “Thus, the law on the subject emerges to the effect that Second Appeal under Section 100 CPC is maintainable basically on a substantial question of law and not on facts. However, if the High Court comes to the conclusion that the evidence on record recorded by the Courts below are perverse being based on no evidence or based on irrelevant material, the appeal can be entertained and it is permissible for the Court to re-appreciate the evidence. 15. Thus, in view of what has been stated above, it can be definitely concluded that the plaintiff was always ready and willing to perform her part of the contract and the First Appellate Court has wrongly concluded that she was not ready and willing to perform her part of the contract. 16. Under such circumstances, the second appeal is allowed and judgement and decree dated 4.5.1978 passed by the First Appellate Court is set aside. The suit is decreed, however, with a modification that the plaintiff will pay to the defendant-respondent Ist set a sum of Rs. 5,000/- with 12 per cent compound interest per annum which accrues till today and get the sale-deed executed. This modification was essential as the prices of land have escalated and it would be unjust to purchase the property in just Rs. 5,000/-, the price which was payable in the year 1971.