Smt. Khudejabi Umar Patel vs Shri Ayanuddin Abdul Razak and Others

H.L. Gokhale, J.—This Second Appeal arises out of the judgment and decree in Regular Civil Appeal No. 326 of 1993, dated 29th July, 1995 passed by the 2nd Additional District Judge, Kolhapur, whereby he dismissed the appeal filed by the appellant herein and thereby confirmed the judgment and decree of the Civil Judge, Senior Division, Kolhapur, dated 30th March, 1993 in Regular Civil Suit No. 84 of 1985 dismissing the said suit filed by the appellant herein. Mr. Patil has appeared for the appellant herein in support of this Second Appeal and Mr. Sakhare with Mr. Dalvi have appeared for Respondent No. 1. Respondent No. 2 is served and is represented by an Advocate, but both of them are not present.

The facts leading to this Second Appeal are as follows:-

The appellant who filed Regular Civil Suit No. 84 of 1985 is a widow. Respondent No. 1 herein is the brother and respondent No. 1 is her own son who is also the son-in-law of respondent No. 1. The property in this litigation is an agricultural land bearing Survey No. 378, Hissa No. 2/1, which is subsequently numbered as Gat No, 1302, admeasuring 0.92 R., which is situated at Rukdi, Taluka Hatkanangale, District Kolhapur. It is the case of the appellant that she wanted to purchase that parcel of land and hence for that purpose she sold another parcel of land on 27.4.1964 and gave the amount of Rs. 4.000/- realised therefrom to her brother Le. respondent No. 1. Respondent No. 1 instead of buying this new parcel of land in his sister''s name purchased it in his own name on 8.9.1964 from one Ramchandra Balwant Kashid. This purchase from Ramchandra Kashid was however subject to an agreement of reconveyance between Kashid and defendant No. 1 and it was agreed between them that if Kashid would repay the amount of Rs. 4.000/- by falgun of 1970 then respondent No. 1 would have to reconvey the land to Kashid. It further appears that respondent No. 1 gave a further amount of Rs. 1,000/- to Kashid and thus the amount of Rs. 5.000/- was to be paid by Kashid to respondent No. 1 to enable him to get back the land. This was reduced to a writing between Kashid and Respondent No. 1 on 19th October, 1964. However to protect her possession, the appellant got a writing executed from her brother Le, respondent No. 1 on 10th August, 1966 wherein he accepted that the amount of Rs. 4.000/- which he had paid to Kashid was in fact received by him from his sister i.e. the appellant herein and that in the event, Kashid fails in getting the reconveyance of the land, respondent No. 1 will restore the land back to the appellant herein.

It appears that the above-referred Ramchandra Kashid filed a suit for reconveyance being Regular Civil Suit No. 169 of 1970 but did not pursue that suit. He has sought specific performance of the agreement of reconveyance but he withdrew it. Kashid filed another suit for the same purpose being R.C.S. No. 375 of 1973 and withdrew that second suit also. In view of the withdrawal of these two suits by the above-referred Ramchandra Kashid, the appellant herein claimed the land which her brother respondent No. 1 had purchased out of her own funds and which he had agreed to return to her by a writing entered between two of them on 10th August, 1966. She, therefore, filed Regular Civil Suit No. 84 of 1985 for that purpose. Prayer (a) in this suit is that respondent No. 1 be directed to enter into a document of conveyance in favour of the appellant herein and prayer (b) seeks that the appellant''s possession in the land be confirmed as the owner of the concerned land etc. Both the respondents filed their written statement but it was the respondent No. 1 who contested the suit. After recording the evidence, the learned Judge of the Trial Court took the view that specific performance could not be granted in the facts and circumstances of the case and he therefore dismissed the suit. Appeal preferred there from was also dismissed. The learned Judge of the Appellate Court principally relied upon some of the discrepancies with respect to the dates in the pleadings but that apart he dismissed the appeal principally on three counts viz. (1) that the kind of contingent contract which was sought to be enforced was not enforceable in the facts and circumstances of the present case, (ii) that in the earlier suit filed by Kashid against the appellant and respondent No. 1, the appellant had taken a stand that she was a tenant in the said land and that respondent No. 1 was the owner. The appellant having admitted the ownership of respondent No. 1, it was not permissible for her now to turn back and say that respondent No: 1 was not the owner, (iii) The learned Judge also took the view that the suit filed by the appellant was time barred.

As far as the plea of limitation is concerned, Mr. Patil, learned Counsel for the appellant, contended that under the Agreement dated 10th August, 1966, the right of the appellant to get back the land would become ripe only when Kashid failed to get the land reconveyed to him. This happened when he withdrew his suit on 20th September, 1984 and that being so, when the present suit was filed on 25th September, 1984, it could not be said that it was time barred. The submission of Mr. Patil is correct and well taken and there need not be any further deliberation on this aspect. As far as the other submission with respect to the appellant herself having accepted the ownership of respondent No. 1 in an earlier proceeding is concerned, what is relevant to note is that respondent No. 1 in Para 11 of his written statement in the present suit contended that whatever stand was taken in that suit was adopted so that the land does not return to Kashid. He has in terms stated that the tenancy entries in her favour are paper entries. Thus the stand taken by the appellant and respondent No. 1 herein in the earlier suit was a joint stand and respondent No. 1 cannot be permitted to take advantage of that against the appellant herein. Mr. Sakhare, learned Counsel for respondent No. 1, tried to contend that the Agreement of 10th August, 1966 should also be read in the same way and submitted that the appellant should not be permitted to take advantage of that agreement. This submission of Mr. Sakhare cannot be accepted for many reasons. Firstly, the agreement records that the funds for purchase of the new land have come from the sale of land which the appellant owned. It further states that because respondent No. 1 was a member of a Sugar Factory, for convenience his name had been shown as the owner of the land concerned. These aspects are not explained either by respondent No. 1 or by Mr. Sakhare. That being the position, in my view, the Courts below were in clear error in taking the view that the earlier stand taken by the appellant herein ought to be read against her and that she should be estopped from disputing the ownership on respondent No. 1 herein. The appellant could not have disputed the ownership on respondent No. 1 in the earlier suit inasmuch the land did stand in the name of respondent No. 1. Her case was that the same was erroneous and the funds for purchase of the land were given by her and now when as per the agreement between the appellant and respondent No. 1, third party i.e. Kashid had failed to get reconveyance, she was entitled to get specific performance. Section 32 of the Indian Contract Act provides that 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. On that event happening however the contingent contract can be enforced. This is what is sought by the appellant herein.

There is also some discussion as to whether the disputed transaction was in any way a benami transaction. Now, Section 4 of the Benami Transaction (Prohibition) Act, 1988, nullifies the defences based on right in respect of the property held benami. However Sub-section (3)(b) of the said Section 4 provides that where a person in whose name the property is held is a trustee or other person standing in a fiduciary capacity, then rigour of the said section would not apply to such a transaction. In a case where a person sending money from abroad to a respondent in India for purchasing immovable property was deceived and the property was purchased in the name of the respondent, the Supreme Court did not permit the respondent concerned to take the plea of benami in the case of C. Gangacharan Vs. C. Narayanan, . The present case is that of a sister relying on her brother and giving her own funds to him to buy land in her name but brother buying the land in his own name and now trying to contend that it is a benami transaction. This is also a situation which is a similar one. The writing of a sister who has placed her faith in her brother cannot be permitted to be defeated by erroneous interpretation of any such provisions.

Mr. Patil, learned Counsel for the appellant, contended that the appellant is in possession of the land concerned which submission was stoutly opposed by Mr. Sakhare. Mr. Sakhare also relied upon another proceeding between the parties being Writ Petition No. 1468 of 1992 wherein another Single Judge of this Court, by his order dated 27.9.1997, has recorded that respondent No. 1 is in possession of the concerned land. That being so, the appellant on getting the decree will have to get the document executed and thereby take the possession. All the points which are dealt with above are raised in Grounds (C), (D) and (I) to (1) of the Appeal Memo and in my view, rightly raised.

In the circumstances, the impugned judgments of both the Courts below will have to be interfered. The Appeal will have to be allowed. Accordingly, the Second Appeal is allowed and the judgments of both the Courts below are hereby quashed and set aside. There will be a decree in favour of the appellant in terms of prayer Clause (a) directing respondent No. 1 herein to complete the document of sale in favour of the appellant. It follows from this that the appellant will be entitled to get possession of the land after getting the document executed. No order as to costs.

Mr. Dalvi, learned Counsel for respondent No. 1, applies for stay of this judgment and decree for a period of eight weeks. Mr. Patil leaves it to the Court to pass appropriate order.

The decree will remain stayed for a period of eight weeks.

Drawing up of certified copy expedited.

Parties to act on an ordinary copy of this judgment.