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2019 DIGILAW 279 (UTT)

Shahjad Hasan @ Aajad Hasan v. Mohd. Mustafa

2019-04-05

SUDHANSHU DHULIA

body2019
JUDGMENT : Sudhanshu Dhulia, J. 1. This is defendants’ second appeal. The suit of the plaintiff for specific performance was decreed on 30.05.1996 and the defendants’ appeal against that order has also been dismissed on 04.10.2016. Aggrieved, defendants’ have filed the second appeal before this Court under Section 100 of the Code of Civil Procedure. 2. On 30.11.2016, a coordinate Bench of this Court had formulated three substantial questions of law which are as under:- “1. Whether both the Courts below have erred in law in holding that the plaintiff remained ready and willing to perform his part of contract as required under section 16 (b) of Specific Relief Act, 1963? 2. Whether both the Courts below have committed a substantial illegality by not extending the benefit of the protection of section 19 (b) of the Specific Relief Act, 1963 as the appellants are bona fide purchaser with consideration of small portion of disputed property and without notice of the agreement to sell dated 17.02.1982? 3. Whether it was mandatory for Shri Irfan to wait complete for three years after 30.04.1985 (the last date of executing the sale deed in terms of the agreement dated 21.07.1982) before executing any other sale deed in favour appellants herein?” 3. Heard learned counsel for the appellants/defendants Sri M.S. Tyagi and Mr. B.C. Pande, Senior Advocate assisted by Mr. Tapan Singh, Advocate for the plaintiff/respondent no.1. 4. Brief facts of the case are that Mohd. Mustafa and Irfan were real brothers. Vide an agreement for sale dated 17.02.1982 executed between the two brothers i.e. Mohd. Mustafa and Irfan, Irfan had agreed to sell his share of the property to his brother Mohd. Mustafa on consideration of Rs.90,000/-(Rupees Ninety Thousand Only). The terms of the agreement reveal that on the date when the agreement for sale was executed, an amount of Rs.30,000/-(Rupees Thirty Thousand Only) was given to Irfan by Mohd. Mustafa. More importantly the agreement was registered on the same day i.e. on 17.02.1982. 5. There is no dispute that the total consideration of the agreement was of Rs.90,000/-(Rupees Ninety Thousand Only). A sum of Rs.30,000/-(Rupees Thirty Thousand Only) was given to Irfan on the date of execution for agreement to sale and the remaining amount of Rs.60,000/-(Rupees Sixty Thousand Only) was to be given by 30.04.1985, by which the sale deed was to be executed by Irfan in favour of his brother Mohd. A sum of Rs.30,000/-(Rupees Thirty Thousand Only) was given to Irfan on the date of execution for agreement to sale and the remaining amount of Rs.60,000/-(Rupees Sixty Thousand Only) was to be given by 30.04.1985, by which the sale deed was to be executed by Irfan in favour of his brother Mohd. Mustafa. It has come on record that before 30.04.1985, when the sale deed was to be executed, a notice was given by his brother Mohd. Mustafa (i.e. the plaintiff) to his brother/defendant no.1 on 09.04.1985 stating that he is ready and willing to execute the sale deed and give the remaining amount and Irfan should come forward for the execution of the sale deed. Admitted facts are that Irfan never appeared for the execution of the sale deed at the designated place. Meanwhile, on 01.10.1985, Irfan sold his share of property to Shahjad Hasan, Aabad Hasan and Jamil Ahmad, who were defendant nos. 2, 3 and 4 respectively before the court below. In the written statement filed before the court below, Irfan admitted that he received a sum of Rs.30,000/-(Rupees Thirty Thousand Only) as an advance at the time of the agreement to sale. However, he took a stand that defendant nos. 2, 3 and 4 have got the sale deed executed in their favour by playing fraud. Defendant nos. 2, 3 and 4 came with the stand before the trial court that they are the bona fide purchaser of the property and they were not aware of the agreement for sale executed between the two brothers i.e. Mohd. Mustafa and Irfan. 6. Defendant nos. 2, 3 and 4 would argue that even assuming for the sake of argument that there was an agreement for sale then the outer limit for execution of the sale deed, even as per the agreement was 30.04.1985. The sale deed which has been executed by Irfan in favour of the defendant nos. 2 to 4 was after almost 5 months i.e. on 01.10.1985. Since they are the bona fide purchaser of the property, they are liable to be given the benefit of Section 19 (b) of the Specific Relief Act, 1963 as specific performance contract cannot be enforced against them as they have not only paid the value for the property in good faith but they had no notice of the original contract. The trial court framed the following issues:- “1. The trial court framed the following issues:- “1. Whether defendant no.1 had executed any valid agreement on 17.02.1982 for selling the property in dispute on a sale consideration of Rs.90,000/-and had received a sum of Rs.30,000/-as advance? If yes, then its effect? 2. Whether the plaintiff has been ready and willing to perform the contract on his part? 3. Whether the defendant nos. 2 to 4 are bona fide purchaser of some part of the property after paying proper value, without notice? If yes, then its effect? 4. Whether the sale deed by defendant no. 1 in favour of defendant nos. 2 to 4 is fraudulent and without any consideration? If yes, then its effect? 5. Whether on 17.02.1985 defendant no. 1 was minor, as has been submitted by defendant nos. 2 to 4 in part no. 21 of the written statement? 6. Relief.” 7. On all issues, the findings were in favour of the plaintiff, except Issue No. 4 which was whether the contract has been executed between defendant no. 1 and the remaining defendants fraudulently and without consideration. The findings were that this was not done fraudulently but it was on a consideration. Nevertheless, the findings in totality have to be considered inasmuch as on specific Issue No. 3, there is a clear cut finding that defendant nos. 2, 3 and 4 had purchased the property with their eyes and ears open as admittedly for the property in question there was already an agreement for sale which was duly registered. 8. Explanation I to Section 3 of the Transfer of Property Act, 1882 will come into operation inasmuch as once there is a registered agreement to the property it will be deemed that it has notice to all the concerned parties. Section 3 of the Transfer of Property Act, 1882 reads as under:- “3. 8. Explanation I to Section 3 of the Transfer of Property Act, 1882 will come into operation inasmuch as once there is a registered agreement to the property it will be deemed that it has notice to all the concerned parties. Section 3 of the Transfer of Property Act, 1882 reads as under:- “3. Interpretation clause:-In this Act, unless there is something repugnant in the subject or context,- “immovable property”.-“immovable property” does not include standing timber, growing crops or grass; “instrument”.-“instrument” means a non-testamentary instrument; “attested”, in relation to an instrument, means and shall be deemed always to have meant attested by two or more witnesses each of whom has seen the executant sign or affix his mark to the instrument, or has seen some other person sign the instrument in the presence and by the direction of the executant, or has received from the executant a personal acknowledgment of his signature or mark, or of the signature of such other person, and each of whom has signed the instrument in the presence of the executant; but it shall not be necessary that more than one of such witnesses shall have been present at the same time, and no particular form of attestation shall be necessary; “registered”.-“registered” means registered in any part of the territories to which this Act extends under the law for the time being in force regulating the registration of documents; “attached to the earth”.-“attached to the earth” means— (a) rooted in the earth, as in the case of trees and shrubs; (b) imbedded in the earth, as in the case of walls or buildings; or (c) attached to what is so imbedded for the permanent beneficial enjoyment of that to which it is attached; “actionable claim” means a claim to any debt, other than a debt secured by mortgage of immoveable property or by hypothecation or pledge of moveable property, or to any beneficial interest in moveable property not in the possession, either actual or constructive, of the claimant, which the Civil Courts recognise as affording grounds for relief, whether such debt or beneficial interest be existent, accruing, conditional or contingent; “a person is said to have notice” of a fact when he actually knows that fact, or when but for wilful abstention from an enquiry or search which he ought to have made, or gross negligence, he would have known it. Explanation I.—Where any transaction relating to immoveable property is required by law to be and has been effected by a registered instrument, any person acquiring such property or any part of, or share or interest in, such property shall be deemed to have notice of such instrument as from the date of registration or, where the property is not all situated in one sub-district, or where the registered instrument has been registered under sub-section (2) of Section 30 of the Indian Registration Act, 1908 (XVI of 1908) from the earliest date on which any memorandum of such registered instrument has been filed by any Sub-Registrar within whose sub-district any part of the property which is being acquired, or of the property wherein a share or interest is being acquired, is situated: Provided that— (1) the instrument has been registered and its registration completed in the manner prescribed by the Indian Registration Act, 1908 (XVI of 1908) and the rules made thereunder, (2) the instrument or memorandum has been duly entered or filed, as the case may be, in books kept under Section 51 of that Act, and (3) the particulars regarding the transaction to which the instrument relates have been correctly entered in the indexes kept under Section 55 of that Act. Explanation II.— Any person acquiring any immovable property or any share or interest in any such property shall be deemed to have notice of the title, if any, of any person who is for the time being in actual possession thereof. Explanation III.— A person shall be deemed to have had notice of any fact if his agent acquires notice thereof whilst acting on his behalf in the course of business to which that fact is material: Provided that, if the agent fraudulently conceals the fact, the principal shall not be charged with notice thereof as against any person who was a party to or otherwise cognizant of the fraud.” 9. The finding has also come that the plaintiff was always ready and willing to execute the sale deed. The lower appellate court has upheld all the findings recorded by the trial court. 10. Before this Court the matter has to be seen in an extremely narrow compass within the range of substantial questions of law, which have been formulated by a coordinate Bench of this Court on which this second appeal has been admitted. 11. The lower appellate court has upheld all the findings recorded by the trial court. 10. Before this Court the matter has to be seen in an extremely narrow compass within the range of substantial questions of law, which have been formulated by a coordinate Bench of this Court on which this second appeal has been admitted. 11. Although an objection has been raised at the hands of the learned Senior Counsel for respondent no. 1 Sri B.C. Pande that this second appeal was not even liable to be admitted on the substantial questions of law and in fact no questions of law arise from it, leave aside the substantial questions of law as at best it can only be called as a mixed questions of law and facts. Nevertheless, purely in the interest of justice, since this appeal has already been admitted by a coordinate Bench of this Court, parties are being heard. 12. There is a clear finding of the trial court that the plaintiff was always ready and willing to perform his part of the contract. The overwhelming evidence to substantiate this fact, more particularly the notice dated 09.04.1985 by the plaintiff to the defendant no.1 expressing that he is ready and willing to come forward for the execution of the sale deed. 13. The second substantial question of law is whether such a decree can be executed in favour of the bona fide purchaser which is given under Section 19 (b) of the Specific Relief Act, 1963. 14. In this regard, it has already been held that the only fact by which the defendants could have come out of the purview of the Specific Performance Act, 1963 was that they could have shown that they are the bona fide purchaser of the property and they had no notice of the earlier agreement to sale. This, however, is not correct. There is a heavy presumption by none else but by the law under Explanation I to Section 3, referred above. It is an admitted fact that it was a registered agreement for sale and therefore it will be presumed in law that defendant nos. 2, 3 and 4 had a notice of the earlier contract. In other words, they are not the bona fide purchaser of the property. 15. As regarding substantial question of law no. 3 that it was mandatory for the defendant no. 2, 3 and 4 had a notice of the earlier contract. In other words, they are not the bona fide purchaser of the property. 15. As regarding substantial question of law no. 3 that it was mandatory for the defendant no. 1 Irfan to wait for a period of three years, as that was the limitation under the law for institution of a suit, what has to be seen here is as to what risk had Irfan and defendant nos. 2, 3 and 4 had exposed themselves being parties to the sale deed dated 01.10.1985 as it is well within three years from 30.04.1985. The law provides that a suit for specific performance can be instituted within a period of three years. This three years period will run from the date a cause of action has arisen, which would be from 30.04.1985. Therefore, Irfan had time from 30.04.1985 to 30.04.1988 for filing a suit for specific performance against Mohd. Mustafa. By not waiting for three years, Irfan and defendant nos. 2, 3 and 4 had exposed themselves for a litigation. This substantial question of law goes against the appellants/defendants. 16. In view of the above, the second appeal has no merit and the same is hereby dismissed. 17. Let the lower court record be sent back to the court concerned.