Sham Kaur vs Malagar Singh

A.L. Bahri, J.—This first appeal has been filed by the Defendants in a suit brought by Malagar Singh for possession by specific performance of contact of land measuring 27 Kanals 18 Marias which was decreed by Sub Judge I Class Moga, on October 23, 1979.

On December 23, 1975, Sham Kaur entered into an agreement to sell land measuring 27 Kanals 18 Marias in favour of Malagar Singh. A sum of Rs. 7000/- at that time was paid towards earnest money. The remaining part of the sale consideration was to be paid at the time of execution and registration of the sale deed which was to be done on or before May 20, 1976. Sham Kaur vide sale deed dated December 30, 1975 sold 3/8th share out of the land comprising certain Khasra numbers in favour of Narain Kaur-Defendant No. 2. Coming to know of the intention of Sham Kaur to sell the land in. favour of Narain Kaur, Malagar Singh moved an application before the Sub Registrar informing him of his previous agreement to sell in his favour and that he should not register the sale deed in favour of Narain Kaur. The Sub Registrar-brought this fact to the notice of Narain Kaur before registration of the sale deed in her favour. Since the sale was effected the Plaintiff-Malagar Singh filed this suit for specific performance of agreement. In the alternative he also prayed for return of Rs. 7000/-, the earnest money and another amount of Rs. 7000/- towards damages which was contemplated in the agreement.

Both the Defendants (the present Appellants) contested the suit. Sham Kaur pleaded that instead of Rs. 7000/- she was paid only Rs, 1500/- and the remaining amount was to be paid in the village. Since this was not done even on her demand, the Plaintiff cancelled the agreement. Thus the Plaintiff was not entitled to specific performance of the agreement. Other pleas were also taken that the suit was pre-mature arid the Plaintiff was not ready and willing to perform his part of the contract. The sale in favour of Narain Kaur was admitted. Narain Kaur took up the plea that she was a bonafide purchaser for consideration and without notice of the previous agreement in favour of Malagar Singh. The Plaintiff controverted these allegations in his reflication. The trial proceeded on the following issues:

(1) Whether the suit is pre-mature?

(2) Whether the suit for specific performance does not lie?

(3) Whether the Plaintiff was ready and willing to perform his part of the contract.

(4) Whether the Plaintiff is estopped by his own conduct and actions from filing the suit?

(5) Whether Defendant No. 1 executed an agreement to sell the suit land to the Plaintiff? If so on what terms and conditions and to what effect?

(6) Whether Defendant No. 2 is bona fide purchaser of suit land without notice? If so, to what effect?

(7) Whether the Plaintiff is entitled to the claim for damages. If so, how much?

(8) Relief.

Under issue No. 5 the trial Court held that Sham Kaur Defendant executed the agreement in favour of Malagar Singh- Plaintiff and at that time a sum of Rs. 7000/- was paid as earnest money. Under issue No. 1 it was held that since the Defendant Sham Kaur had sold away portion of the property to Narain Kaur before the due date fixed in the agreement, the suit filed was not pre-mature. Under issue No. 2 it was held that suit for specific performance was maintainable. Under issue No. 3, the Plaintiff was held ready and willing to perform his part of the contract. The plea of Sham Kaur Defendant that a sum of Rs. 1500/- was paid at the time of execution of the agreement was held to be not proved. In fact Rs. 7000/- was paid. Issue No. 4 decided against the Defendant holding that the Plaintiff was not estopped by his own conduct and actions from filing the suit. No evidence was led by the Defendant on this issue. Under issue No. 6 it was held that Narain Kaur Defendant was not a bona fide purchaser of the suit land. She had the notice of the agreement to sell in favour of the Plaintiff. Since under issue No. 2 suit for specific performance was held to be maintainable, issue No. 7 was held to have become redundant as this issue related to claim for damages. In the result the suit was decreed with costs, for specific performance of the agreement with respect to land measuring 27 Kanals 18 Marias on payment of balance sale consideration. The price was to be calculated at the rate of Rs. 10,000/- per Killa. The Plaintiff was allowed one months time to deposit the requisite amount and both the Defendants were directed to execute the sale deed in favour of the Plaintiff within a period of three months otherwise the Plaintiff was to get the sale deed executed through the court.

Issue No. 1 -Nothing has been argued on this issue Further more when before the due date Sham Kaur had sold portion of the property in dispute, there was no reason for specific performance of the agreement as the Defendant Sham Kaur had already committed breach of the contract. The suit could not be held to be pre-mature in the facts and circumstances of the case. Furthermore the time for execution of the sale deed under the agreement having expired, decree for specific performance of the agreement could be passed now.

Issue No. 2, 3, 5, and 6 -These issues can be disposed of together while dealing with the arguments addressed in appeal. Although Sham Kaur Defendant while appearing as DW 1 has admitted the execution of the agreement to sell in favour of the Plaintiff her case was only this that a sum of Rs. 1500/-was paid to her at the time of execution of the agreement and not Rs. 7000/-. When in the village she demanded the remaining amount, the Plaintiff cancelled the agreement. In order to prove that in fact Rs. 1700/- were paid at the time of the execution of the agreement PW 1 Hukam Chand, Scribe, PW 3 Lachhman Singh, an attesting witness of agreement Exhibit P. 1, PW 4 Gulwant Singh, another attesting witness, have deposed consistently that a sum of Rs. 7000/- was paid to Sham Kaur at the time of execution of the agreement to sell, exhibit P.1.

The contention of Shri R.S. Bindra, Sr. Advocate for the Appellant, is that Sham Kaur, a widow an aged lady, was roped into a fraud and in fact a sum of Rs. 1500/- was paid to her, as deposed by her, and the remaining amount was to be paid in the village. When she asked for the remaining amount, and the same was not paid, Malagar Singh cancelled the agreement. this contention cannot be accepted. The Plaintiff produced cogent evidence to prove Exhibit P.1 - the agreement entered into by Sham Kaur with Malagar Singh and at the time of the agreement a sum of Rs. 7000/- was paid to her. Since execution of the agreement has been admitted by Sham Kaur, there is no reason to disbelieve the witnesses of execution of the agreement produced by the Plaintiff with regard to the passing of the consideration. PW 1 Hukam Chand in a Deed - Writer and had deposed to the execution of the agreement Exhibit P. 1 having been scribed by him at the instance of Sham Kaur who thumb marked it. According to him a sum of Rs. 7000/- was paid to Sham Kaur. Statement of this witness regarding passing of Rs. 7000/- to Sham Kaur was not questioned during cross-examination. Rather no question was put to him that only Rs. 1500/- were paid and not Rs. 7000/-. Similar is the position that of the evidence of Lachhman Singh PW 3 and Gulwant Singh PW 4 who are attested witnesses of the agreement Exhibit P.4. They also deposed about the payment of Rs. 7000/- to Sham Kaur at the time of the execution of agreement and their statements were not challenged. Malagar Singh PW 7 also deposed about the execution of the agreement and payment of Rs. 7000/- to Sham Kaur at the very time. The statements of Lachhman Singh and Gulwant Singh were criticised during arguments they being distantly related to Malagar Singh. In my view on the ground of relationship the evidence of these witnesses could not be ignored, more so, when the factum of agreement stands admitted.

Some evidence was produced by Sham Kaur that in village she demanded Rs. 5500/- from Malagar Singh and on his non-payment the agreement was cancelled. DW 1 Sham Kaur stated about it. DW 2 Arjan Singh was produced to support her. Their evidence cannot be accepted firstly on the ground that the same is contrary to the contents of agreement Exhibit P. 1. Further Sham Kaur admitted in the cross examination that she did not issue any notice regarding non-payment of Rs. 7000/-. She only collected certain person in this respect. No document was executed regarding cancellation of the agreement. Of course, she denied the suggestion that Rs. 7000/- were paid to her in cash at the time of the agreement. Arjan Singh stated that Kartar Kaur and Sham Kaur came to Nathuke where he was taken and met Malagar Singh. In their presence Sham Kaur demanded Rs. 5500/- Malagar Singh cancelled the previous agreement. Rather Arjan Singh DW stated that no agreement had been entered into. Sham Kaur, as stated by him, was resident of Nathuke. He admitted his relationship with Sham Kaur, while denying his relationship with Kartar Singh. His evidence has not inspired confidence and was rightly rejected by the trial Court. The story put forth by Sham Kaur that only Rs. 1500/- were paid to her at time of execution of the agreement is not acceptable.

Plea was taken by the Defendant Sham Kaur that consideration did not pass under the agreement and the Plaintiff having successfully proved execution of the agreement and payment of earnest money having been established there was no reason to deny the relief of specific performance of the agreement, more, so, when Sham Kaur committed breach of the agreement by selling the land to Narain Kaur. The discretion to deny the relief of specific performance could only be refused on the existence of some special circumstances envisaged u/s 20 of the Specific Relief Act. In the present case no such circumstances exist.

It has been argued by Shri R.S. Bindra, Sr. Advocate, for the Appellant, that no notice to execute the sale deed was issued to Sham Kaur by Malagar Singh and thus it should be held that Malagar Singh was not ready and willing to perform his part of the contract. In support of this contention reliance has been placed on the decision of B.S. Yadav, J. In Ishar Singh v. Sheo Ram 1987 PLJ 421, while making reference to Appendix ''A'' Form 47 of the Code of Civil Procedure, it was observed that the Plaintiff was required to plead and prove that he applied to the Defendant to execute the sale deed and non-compliance of these provisions would be fatal to the suit. The ratio of the decision aforesaid cannot be applied to the case in hand. Sham Kaur having already sold the property before the date fixed in the agreement which is in favour of Malagar Singh, the Plaintiff, there was no use serving any notice on Sham Kaur to execute the sale deed in favour of Malagar Singh. In such circumstances it was not necessary for the Plaintiff to plead and prove that he had actually tendered the balance amount of sale consideration to the Defendant and asked him to execute the sale deed. Reliance has been placed on the decision of the Supreme Court in Ouseph Varghese Vs. Joseph Aley and Others, , by the learned Counsel for the Appellant that in the absence of a plea of readiness and willingness to perform his part of agreement by the Plaintiff, the suit could not be decreed. Again ratio of this decision cannot be applied to the facts of the case in hand. In that case the Defendant had alleged in the written statement that there was an agreement to sell. In the light of that plea the Plaintiff did not file replication or amend his plaint stating that he was ready and willing to perform his part of aforesaid agreement. It was in these circumstances that the Supreme Court held that the Plaintiff could not be granted decree on the basis of such an agreement pleaded in the written statement.

In the present case sufficient evidence has been produced by Malagar Singh Plaintiff that he was ready and willing to perform his part of the contract. He was also in control of finances to meet the obligation under the contract. PW 2 Ram Kishan, a Commission Agent, deposed about the account of Bakhtawar Singh father of Malagar Singh with their firm. As per his statement Malagar Singh, as on November 18, 1975, had Rs. 11,476/- in the account. On December 22, 1975, he withdrew Rs. 2000/-. On the same day he took another sum of Rs. 4000/- and further on the following day a sum of Rs. 2000/-. In cross-examination he stated that the account was in the name of Bakhtawar Singh alone but the entry of December 22, 1975 was signed by Malagar Singh and was only for Rs. 200/-. The mistake occurred as he had not brought the spects. The entry of Rs. 4000/- was of Bakhtawar Singh. It is argued on behalf of the Appellant that even if Bakhtawar Singh father of Malagar Singh had some account, Malagar Singh had no control over it. This contention cannot be accepted. There is no evidence that relations of Malagar Singh with his father Bakhtawar Singh were strained. PW 7 Malagar Singh that stated the apart from the money in the said account of the Commission Agent, he had also cash amount at his house to the tune of Rs. 15,000/-. If the amount in cash at the house as well as the amount lying in the account of his father Bakhtawar Singh is taken into consideration, it can safely be held that he was in a position to meet his obligation under the agreement.

Malagar Singh has deposed that on coming to know of the alleged sale by Sham Kaur in favour of Narain Kaur, he moved an application before the Sub Registrar not to register the sale. PW 6 J.C. Jain, Sub Registrar, deposed about the endorsement made by him on the application of Malagar Singh -Exhibit P.2. He further stated that he brought this fact to the notice of Sham Kaur that Malagar Singh was alleging an agreement in his favour. On behalf of the purchaser Narain Kaur, Thakur Singh had appeared who is husband of Narain Kaur. Notice to Thakur Singh of the previous agreement to sell in favour of Malagar Singh by Sham Kaur would be deemed to be notice to Narain Kaur. Thus, in the facts of the present case it cannot be said that Narain Kaur is a bonafide purchaser without any notice of the agreement to sell - Exhibit P.1 which was in favour of Malagar Singh. These findings of the Court below on issue Nos. 2, 3, 5 and 6 are affirmed. The suit is held to be maintainable. The � Plaintiff was ready and willing to perform his part of the agreement. The agreement - Exhibit P.1 was duly executed by Sham Kaur in favour of the Plaintiff. The agreement - Exhibit P. 1 itself recites that the sale was to be at the rate to Rs. 10,000/- per Killa. The mere fact that the Plaintiff did not state while appearing as a witness that the rate was Rs. 10,000/- per Killa, is no ground to deny the relief.

Issue No. 1 - It was argued on behalf of the Appellant, though in a lukewarm manner, that the suit was premature having been filed before the date mentioned in the agreement i.e. December 23, 1975. This contention has no merit. As already observed above it was before that date that Sham Kaur sold the property to Narain Kaur by executing a registered sale deed. Thus on December 23, 1975 Sham Kaur was not going to execute any sale, deed in favour of Maghar Singh Plaintiff so that Malagar Singh should have waited. The suit is held to be maintainable and not pre-mature.

Issue No. 4 - Nothing cogent has been argued as to how the Plaintiff is estopped by his own conduct and actions from filing the suit. The issue is decided against the Appellant.

For the reasons recorded above, this appeal fails and is dismissed with costs. The judgment and decree of the trial Court are affirmed.

Execution of the sale deed was stayed by this Court. Sham Kaur Defendant is, therefore, directed to execute the sale deed in favour of Maghar Singh Plaintiff on receipt of the remaining amount of the sale consideration. The Plaintiff may deposit the remaining amount of the sale consideration in executing Court within a period of two months from today. Narain Kaur would join in the execution of the sale deed. On failure of the Defendants to execute the sale deed within a period of two months, the Plaintiff would be entitled to get the sale deed executed through the Court.