Sulochana and K.R. Jayaram vs K Vijayakumar

A.S. Pachhapure, J.—The judgment and decree for specific performance of contract granted by the Trial Court and confirmed in the appeal is challenged before this Court by way of second appeal. The facts relevant for the purpose of this appeal are as under:

The parties will be referred as per their rank before the Trial Court for the sake of convenience.

The appellants herein are the defendants whereas the respondent herein is the plaintiff who instituted a suit for specific performance of contract. As per the averment in the plaint, the suit property is the house property bearing New No. 1891 within the town limits of Nanjangud properly described in the schedule to the plaint. The defendants are said to be the owners and they had agreed to sell the suit property to the plaintiff on 07.09.2001 for a consideration of Rs. 2,00,000/-. On the date of agreement, an amount of Rs. 1,50,000/- was paid to the defendants and the remaining amount of Rs. 50,000/- was to be paid after the tenant vacates the suit property and at the time of registration of sale deed. As the defendants did not execute the sale deed in terms of the agreement dated 07.09.2001, the plaintiff issued a notice on 13.06.2003 and the defendants replied stating that they have not executed an agreement of sale and that it was a loan transaction. It is in these circumstances that the plaintiff approached the Court below seeking specific performance of contract.

The defendants appeared and filed the written statement denying the allegations made and they contend that they had taken a loan of Rs. 1,00,000/- and they were taken to the Office of Sub Registrar stating that a simple mortgage deed will be executed. Further the plaintiff by committing fraud got executed the sale agreement in his favour. It is also their contention that there are other persons who are interested in the suit property and they are neither the parties to agreement nor to the suit. Further more, they contend that the plaintiff was not ready and willing to perform his part of the contract. On these grounds, the defendants sought for dismissal of the suit.

On the basis of these pleadings, the Trial Court framed as many as 7 issues and permitted the parties to lead evidence Accordingly, the plaintiff examined himself as PW1 and an attesting witness as PW2 and in their evidence, documents Exs. P1 to P4 were marked. Defendant No. 2 was examined as DW1 and two witnesses as DWs. 2 and 3 and the documents Exs.D1 and D2 have been marked. The Trial Court after hearing the counsel for parties and on appreciation of the material placed on record held that the suit agreement is an agreement of sale and that the plaintiff was ready and willing to perform his part of the contract and by rejecting the defence of defendants, it granted a decree for specific performance of contract in favour of the plaintiff. Aggrieved by the judgment and decree, the defendants preferred RA No. 180/2011 and the said appeal was also came to be dismissed alongwith the application filed by the defendants under the provisions of Order 41 Rule 27 and 28 CPC and also under the provisions of Order 14 Rule 5(1) of CPC. Aggrieved by the concurrent findings of the courts below, the defendants are in appeal before this Court.

I have heard learned Counsel for both the parties.

It is the contention of learned Counsel for the appellants that apart from the appellants there are other persons who have an interest in the suit property and in the absence of the said persons, a decree for specific performance cannot be passed. It is also his contention that the evidence led in the Trial Court is not sufficient to hold that the plaintiff was ready and willing to perform his part of the contract. Further more, he contends that the second defendant has a sister who has also instituted a suit for partition in the suit property and she is a necessary party to the present suit. Further, he contends that the transaction in question is a loan transaction and not an agreement of sale and therefore, submits that the courts below committed a grave error in granting the decree for specific performance and confirming the same in the appeal.

Per contra, learned Counsel for the respondent supported the judgment and decree of the courts below.

A perusal-. of. the material placed on record and the findings of Courts below reveal that Ex. P1 is the disputed document i.e., agreement of sale dated 07.09.200.1. A copy of the agreement of sale is made available. A perusal of document reveals that the defendants have agreed to sell the suit property for a consideration amount of Rs. 2,00,000/- and as on the date of agreement, they have received an amount of Rs. 1,50,000/-. Further they have agreed to execute the sale deed by receiving the remaining consideration of Rs. 50,000/- within two years after the tenant vacates the suit property. Ex. P2 is the property extract whereas Ex. P3 is the copy of notice issued by the plaintiff calling upon the defendants to execute the sale deed. Ex. P4 is the reply notice. A perusal of Exs. P3, P4 and the pleadings reveal that the defendants have taken up a contention that the suit agreement is not an agreement of sale and that it is a simple mortgage transaction. On this aspect of the matter, though learned counsel contends that the suit property was worth Rs. 8,00,000/- lakhs, except the oral version, the defendants have not produced any documents to show that the suit property was worth Rs. 8,00,000/- as on the date when the agreement of sale was entered into. Further more, it is relevant to note that the second defendant who is the son of first defendant is an educated person and he was present at the time of execution of Ex. P1 and he also admits in his evidence that he know reading and writing and further he knows the difference between agreement of sale, loan transaction, simple mortgage and a sale deed. So, the admission of DW1 in the context of the evidence of plaintiff who is examined as PW1 and the attesting witness PW2 would reveal that the defendants executed the sale agreement in favour of the plaintiff agreeing to sell the suit property for a consideration amount of Rs. 2,00,000/-. Further, the plaintiff is a lorry driver and in a rented premises. Such a person cannot dominate the defendant. The Trial Court has taken into consideration the material placed on record and on assessment of the evidence it has come to a conclusion that the suit document is an agreement of sale and that there is no material in the evidence of parties to hold that the suit agreement is a simple mortgage.

So far as the claim of daughter is concerned, she is not a party to the agreement of sale. If she is so aggrieved, she can approach the Court to claim her interest in the suit property on the ground that she is not a party to the sale agreement and when the defendants executed the sale agreement claiming themselves to be the owner of suit property, now, they are estopped from contending that there are persons other than the defendants who are having an interest in the suit property. In case if there are any other members in the joint family or that the daughter has got any interest in the suit property, she is at liberty to institute a suit for any such relief. Anyhow, it is the submission made by learned Counsel for the appellants that the daughter has already instituted a suit for partition and the same is pending in the Trial Court. The mere fact that other persons who are not parties for agreement of sale are not impleaded it does not mean that the present suit instituted is not maintainable in law. The plaintiff is at liberty to institute a suit for specific performance against those persons who have interest in agreement of sale. Therefore, the contention that the daughter is a necessary party cannot be accepted.

So far as the readiness and willingness is concerned, it is relevant to note that the agreement contains a condition that the remaining amount of Rs. 50,000/- was to be payable within two years. As on the date of registration of sale deed, there were tenants and they were to vacate the suit property. Hence, the plaintiff issued a notice to the defendants in Ex. P3 requesting him to execute the sale deed in terms of the sale agreement Ex. P1, but the defendants instead of agreeing for execution of sale deed have taken up a contention that the suit agreement is a simple mortgage or a loan transaction and not an agreement of sale. Anyhow, this contention has been taken into consideration by both the Courts below and on appreciation of the material placed on record, the Courts below have arrived at a conclusion that the plaintiff is ready and willing to perform his part of the contract. It is well established principle of law that when there are concurrent findings of the Courts below, this Court in the second appeal cannot interfere with such finding and even in case if there is erroneous and a capricious finding, the substantial question of fact cannot be a substantial question of law. In this context, if the contention raised by counsel for appellants is looked into, I am of the opinion that the appellant has not made out any substantial question of law for consideration in this appeal. As both the courts below on proper appreciation of material on record have granted a decree for specific performance, and there is no material to interfere with such finding, the appeal deserves to be dismissed.

In the result, the appeal fails and is dismissed.