B.P. Dharmadhikari, J.
1. This First Appeal by original Defendant is challenging the judgment and decree dated 5th May 1992 delivered by 6th Joint Civil Judge, Senior Division Court, Nagpur by which it decreed the Special Civil Suit No. 660 of 1989 filed by present Respondent for specific performance. Deceased Appellant No. 1 was original Defendant No 1 in said Suit and present Appellant Nos. 2 and 3 are subsequent purchasers from her impleaded therein later on by the Respondent. During pendency of this Appeal, Appellant No. 1 expired and remaining Appellants contended that she expired without leaving any legal heir and they are prosecuting present Appeal as subsequent purchasers in possession.
2. The case of Respondent Plaintiff is that on 5/10/1986 an agreement was reached with present Appellant Defendant by which she agreed to sell a house property at Nagpur for total consideration of Rs. 3,01,000/-only (i.e. Three lakhs One thousand only) and received earnest amount of Rs. 5,000/-(Five thousand only). Balance amount of Rs. 2,96,000/-(Two lakhs Ninety six thousand only) was to be paid at the time of execution and registration of sale deed which was to be executed within period of three months. Defendant had claimed therein payment of Rs. 50,000/-only by 14/10/1986 but that condition was redundant in view of specific understanding about the point of time at which entire balance sell consideration was to be paid. He requested Defendant several times to execute sale deed and he also approached her with amount of Rs. 50,000/-on 14/10/86 but she refused to accept because she wanted to back out. He forwarded notice dated 30/12/1986 but Defendant avoided to execute any sale deed and forwarded on 18/6/1987 false telegram that in spite of two registered notices sent by her, Plaintiff failed to pay balance consideration and obtain sale deed. She threatened to sell the house to other purchaser if Plaintiff failed to obtain sale deed within 7 days. He further contended that in this notice Defendant did not claim that agreement stood cancelled for non-payment of amount of Rs. 50,000/-on 14/10/86 and thereby she waived said condition. He further stated that on 29/6/1987 he met Defendant-1 and requested her to execute sale deed but she did not and then he received notice dated 19/8/87 from her (Defendant) alleging that he had no sufficient funds to purchase the property and agreement was cancelled. He alleged in his plaint that he was always ready and willing to perform his part of contract. He further alleged that cause of action accrued on 5/1/1987 which was last date for obtaining sale deed. He filed suit on 12/10/1989 and joined original Appellant No. 1 Smt. Shyamabai only as sole Defendant. It appears that during pendency of suit, original Defendant sold the house property to present Appellants Nos. 2 and 3 in July 1991 and hence Plaintiff brought them on record before Trial Court as Defendants Nos. 2 and 3. Details of this event are also required to be considered while appreciating the rival arguments and hence, I, do not find it necessary to mention the same here.
3. Defendant landlady filed her written statement denying agreement dated 5/10/86 and contended that it was only acknowledgment for Rs. 5,000/-. Formal agreement for sale was agreed to be drawn if Plaintiff paid further amount of Rs. 50,000/ between 12 and 14 October 1986 failing which promise to sale was to stand cancelled and amount of earnest was to be forfeited. She further pleaded that sale deed was to be completed by 5/1/1987 and time was essence of contract. She requested Plaintiff to supply her copy of said receipt on several occasions by registered letters and orally but Plaintiff deliberately did not supply it because of forfeiture clause contained therein. She denied that Plaintiff at any time requested her to execute sale deed and contended that on the contrary she forwarded notice and telegram for that purpose. She denied that amount of Rs. 50,000/-was offered to her by Plaintiff but she refused it. She denied that Plaintiff met her on 29/6/1987 and clarified that she forwarded reply on that day to Plaintiff's legal notice. She accepted that she issued legal notice on 19/8/87 informing Plaintiff that he had no funds and cancelled the agreement. She denied that Plaintiff was always ready and willing to have sale deed. She denied all claims and requested for dismissal of suit with exemplary costs of Rs. 3,000/-under Section 35A of CPC. She, in the alternative, also claimed compensation of Rs. 6,000/ per month with effect from 5/1/1987 in case specific performance was granted with interest at 2% per month on balance sale consideration.
4. After they were joined as co-defendants, present Appellant Nos. 2 and 3 filed their written statement on 17/2/1992 stating that they were bonafide purchasers without any notice of pending litigation or without any notice of alleged agreement with Plaintiff. They also prayed for dismissal of suit with compensatory costs of Rs. 10,000/- only.
5. In view of these pleadings, Trial Court framed issues vide Exhibit 15 and answered the same in impugned judgment as mentioned below:
1. Does the Plaintiff prove that the defendant agreed to sale the suit property for total consideration of Rs. 3,01,000/- on 5/10/86? Answer:- Proved.
2. Does the Plaintiff prove that he paid Rs. 5,000/-as an earnest money on 5/10/86 at the time of agreement of sale?
3. Does the Plaintiff prove that the recital regarding the payment of Rs. 50,000/-was however redundant is was specifically was specifically stated in the agreement?
4. Does the Plaintiff prove that he was and is ready and willing to perform his part of contract by paying balance consideration to the defendant?
5. Is the Plaintiff entitled for a decree of Rs. 107700/ out of which Rs. 5000 as earnest amount, Rs. 2700 interest Rs. 100000/ as compensation for breach of contract?
6. Is Plaintiff entitled for decree of specific performance of contract against the defendant?
7. Does the defendant prove that the time is essense of contract? Answer:- Not proved.
8. Does the defendant prove that Plaintiff has committed two breaches firstly he failed to pay Rs. 50,000/-on 14/10/86 & accordingly he failed to complete the sale deed within three months? Answer:-- Not proved.
9. Is defendant entitled for compensatory costs of Rs. 3,000/-and compensation of Rs. 6000/-per month as Plaintiff's suit is false and frivolous? Answer:- Not proved.
10. What reliefs and costs? Answer:- As per final order.
1. Does defendant prove that she is entitled to claim interest at 2 percent per month on remaining consideration? Answer:- Not proved.
2. Do defendants 2 and 3 proved that they are bonafide purchasers without notice of litigation? Answer:- Not proved.
6. I have heard Advocate Chauhan holding for Advocate S.P. Dharmadhikari for Defendants/ Appellant Nos. 2 and 3 and Advocate C. P. Sen for Respondent/Plaintiff. In order to avoid unnecessary duplication, I find it more convenient to briefly mention the points argued in the beginning as both the learned Advocates have relied upon several precedents while making references to impugned judgment and evidence on record and hence their arguments can be more appropriately evaluated while considering each point.
Advocate Chauhan has raised following contentions:
1 --Document at Exhibit 34 is not an agreement for sale.
2 -- Time is essense of contract.
3--Appellant Nos. 2 and 3 are legal representatives of deceased Appellant/Defendant No. 1 entitled to prosecute the appeal.
4--Plaintiff did not prove that he was always ready and willing to perform his part of contract.
5 --Court below accepted story of alleged delay or fault on part of original Defendant No. 1 though there was no such stand and plea by Plaintiff.
6 --Court below has not used Section 20 of Specific Relief Act.
7 --Appellant Nos. 2 and 3 are bonafide purchasers without notice and hence specific performance could not have been directed against them in view of Section 19(b) of Specific Relief Act.
Advocate C. P. Sen while rebutting these arguments has invited attention to provisions of Section 52 of Transfer of Property Act and contended that provisions of Section 19(b) of Specific Relief Act do not override doctrine of lis pendens. He further stated that Appellant Nos. 2 and 3 had & have very limited rights that too before Trial Court and after death of original Defendant No. 1 present Appeal abates. He also pointed out that during pendency of Suit, Plaintiff had applied for grant of temporary injunction to prohibit Defendant No. 1 from transferring suit house to any third person and by filing reply affidavit, she undertook not to sale property to anybody else. He states that sale deed of present Appellant Nos. 2 and 3 is in breach of said undertaking given to the Trial Court and therefore void. In reply Advocate Chauhan urged that there was no such undertaking and hence, though Plaintiff filed application under Order 39 Rule 2A, Plaintiff preferred not to obtain any orders on it. He further states that in view of subsequent developments the issue has become academic insofar as this litigation is concerned.
7. Following questions therefore fall for determination by me in this Appeal:
A. Whether document at Exhibit 34 is an agreement for sale?
B. Whether time was essense of contract?
C. Whether present Appeal abates after death of Appellant No. 1/Defendant No. 1 Landlady?
D. Whether Plaintiff proved his readiness and willingness in the matter?
E. Whether Trial Court has used its discretion under Section 20 Specific Relief Act as per Law?
F. Whether sale deed of Appellant No. 2 and 3 is void as in breach of any undertaking of Defendant No. 1 to the Trial Court?
Though normally questions/issues about abatement of appeal or about sale deed being void should have been taken for consideration in the beginning, I find that certain facets need mention even for deciding these two issues and hence it is convenient to proceed in the sequence in which questions are framed by me.
8. Plaintiff examined himself to show his readiness & willingness, to state that time was not essence of contract, to point out failure on part of Defendant-1 and also examined one Balaji to prove his attempt to pay Rs. 50,000/-within time to the her. Defendant No. 1 examined herself to rebut all the above contentions & Defendant No. 2 also entered the witness box to show that he and Defendant No. 3 were bonafide purchasers without any notice. Apart from this oral evidence, as per Trial Court documents duly proved by parties are Exh. 34-a receipt/agreement dated. 5/10/1996, notice dated. 6 or 13 April 1987 at Exh. 35 by the Defendant to Plaintiff demanding execution to be completed by 30/4/1987, envelop at Exh. 42 dated. 24/2/1987 refused by Plaintiff with Exh. 14b, another communication at Exh. 44 by the Defendant/Appellant to Plaintiff dated. 17/5/1987 for getting sale deed executed before 31/5/1987, letter dated. 24/6/1987 by Respondent/Plaintiff to Defendant at Exh. 41 to get necessary no objection certificates for completing sale deed, notice dated. 24/12/1987 at Exh. 36 by Defendant-1 to Plaintiff that agreement was cancelled on 19/8/1987 and he could collect back his earnest after returning original receipt, notice dated. 5/1/1988 at Exh. 36 by Plaintiff to Defendant-1 to execute sale deed by 31/1/1988 and reply dated. 11/1/1988 at Exh. 37 by Defendant-1 to it denying story of Plaintiff. The questions above need to be answered in this background and the contention that subsequent sale is in breach of undertaking given by the Defendant to Trial Court.
9. In relation to document dated 5/10/1986( Exh.34), there cannot be much of dispute in present facts. Plaintiff has in paragraph 1 of his Plaint expressly mentioned that said document is an agreement and he has further stated that stipulation therein to pay Rs. 50,000/--on 14/10/86 was redundant in view of its earlier portion by which Defendant accepted to receive entire balance amount of Rs. 296000/only at the time of registration and execution of sale deed. Original Defendant-1 in her Written Statement, paragraph 1 has stated that there was no agreement as alleged and it was only a promise to sale. She alleges that formal agreement for sale was to be entered into if Plaintiff paid further amount of Rs. 50,000/-in cash between 12th and 14th October 1986. She accepted execution of sale receipt dated 5/10/1986. She has also accepted the other contents of the said receipt. While recording evidence of Plaintiff, in paragraph 2 of examination in chief, the Trial Court has observed that said document though termed as receipt was in fact an agreement and hence inadequately stamped. The document was therefore impounded and was also Exhibited as Exhibit 34 subject to payment of proper stamp duty. It is admitted position that the document was accordingly impounded and has been duly stamped. In paragraph 2 of notice at Exhibit 35 dated 6/13 April 1987, the Defendant-1 has further accepted that she agreed to sale the house to Plaintiff for total consideration of Rs. 3,01,000/ only and has also accepted other terms and conditions including drawing for receipt of payment of Rs. 5,000/-only. This notice Exhibit 35 dated 6/13 April 1987 issued by Defendant No. 1 to Plaintiff reveals that Plaintiff had served upon her a notice dated 30/12/1986 and she forwarded reply to it which was not accepted by Plaintiff and she received back the envelope with postal endorsement "refused". In said notice in paragraph No. 6, Defendant-1 has called upon Plaintiff to pay full amount of consideration in balance and get the sale deed registered by 30th April 1987. In earlier paragraphs she has blamed Plaintiff for not obtaining sale deed or for not getting formal agreement for sale executed and for failure to fix the date of registration of sale deed. She also warned him that if sale was not completed by 30 April 1987, she would sale the property to some other purchaser This position therefore unequivocally establishes that document Exhibit 34 dated 5/10/1986 is in fact an agreement between parties though it does not bear signature of Plaintiff and parties have conducted themselves accordingly. This also becomes apparent from further discussion being undertaken by me while considering the controversy on merits. Question No. A is thus answered in the affirmative.
10. Though agreement at Exhibit 34 mentions time for payment of Rs. 50,000/ between 12th to 14th October, 1986 the contention of Plaintiff is that said stipulation which occurs in latter part of the document needs to be ignored in view of its earlier portion which requires payment of entire balance consideration of Rs. 2,96,000/ -at the time of registration and execution of sale deed. It is in necessary to point out that translation of said document provided for by Appellant is not correct. Portion is translated by Appellants as:--"In between 12th October to 14th October 86, the buyer Shri Ramkrishna Prabhatilal will pay Rs. 50,000/--(Rs. in words Fifty Thousand only) to me". However receipt in original is in Hindi language and it uses the Hindi word " Beech" twice and said word in English means "between" or "before that" or .in the mean while. Proper translation therefore has to be: --"Before that, between 12th October to 14th October, the buyer Shri Ramkrishna Prabhatilal will pay Rs. 50,000/--(Rs. in words fifty thousand only) to me". Thus use of both these words "before that" and "between" clearly shows the emphasis on payment of Rs. 50,000/ -between two dates mentioned therein. Stand of Defendant is that a formal agreement was to be entered into between parties after payment of this amount of Rs. 50,000/-. The Plaintiff has relied on
"Kaivelikkal Ambunhi v. H. Ganesh Bhandary" which basically deals with the interpretation of a testamentary document. Hon'ble Apex Court has observed that the rules of interpretation of the "Will" are different from the rules which govern the interpretation of other documents say, for example, a Sale Deed or a Gift Deed or a Mortgage Deed or, for that matter, any other instrument by which interest in immovable property is created. While in these documents if there is any inconsistency between the earlier or the subsequent part or specific clauses inter se contained therein, the earlier part will prevail over the latter as against the rule of interpretation applicable to a Will under which the subsequent part, clause or portion of will prevails over the earlier part on the principle that in the matter of "Will", the testator can always change his mind and create another interest in place of the request already made in the earlier or on an earlier occasion. Hon'ble Apex Court in paragraph 6 of the judgment has also pointed out that such an interpretation is to be resorted to only if different clauses cannot be reconciled. In the present case, agreement at Exhibit 34 clearly reflects that balance payment of Rs. 296000/-was to be received by vendor/Defendant within 3 months at the time of registration and execution of sale deed. After two sentences in Hindi, said period of three months is stated to be up to 6/1/1987 from 5/10/86. The two Hindi sentences read: --"Before that, between 12th October to 14th October, the buyer Shri Ramkrishna Prabhatilal will pay Rs. 50,000/--(Rs. Fifty Thousand only) to me. If this payment is not made on 14/10/86, agreement shall be presumed as cancelled and earnest will not be refunded". These two sentences therefore clearly indicate that failure to pay Rs. 50,000/--by outer date i.e. 14/10/1986 was agreed to result in cancellation of agreement and forfeiture of earnest. Use of Hindi word "Beech" twice and its impact is already mentioned by me above. The sentence following it also makes the intention of parties very clear. It is therefore obvious that out of balance amount of Rs. 2,96,000/--, amount of Rs. 50,000/--was agreed to be paid between 12th to 14th October 1986 and failure to pay it was to result in cancellation of agreement. The contention of Plaintiff that this stipulation about payment of Rs. 50,000/-or consequences of its non-payment must yield to earlier portion which required payment of entire balance consideration at the time of registration and execution of sale deed, is therefore without any merit in present case. Plaintiff has in fact lead evidence to show that he attempted to pay that amount of Rs. 50,000/--as agreed on 14/10/86 and Defendant avoided said payment. I therefore find that language of document is capable of reconciliation and in any case there is no confusion between parties about its meaning or effect. The above referred ruling of Hon'ble Apex Court itself envisages certain exceptions to the rule of interpretation narrated in paragraph 3 of the reported judgment.
11. Notice Exhibit 35 dated 6/13 April 1987 issued by Defendant-1 to Plaintiff reveals that Plaintiff had served upon her a notice dated 30/12/1986 and she forwarded reply to it which was not accepted by Plaintiff and she received back the envelope with postal endorsement "refused". In notice Exh. 35 in paragraph No 6, Defendant-1 has called upon Plaintiff to pay full amount of consideration in balance and get the sale deed registered by 30th April 1987. In earlier paragraphs she has blamed Plaintiff for not obtaining sale deed or for not getting formal agreement for sale executed and for failure to fix the date of registration of sale deed. She also threatened that if sale was not completed by 30 April 1987, she would sell the property to some other purchaser. On 24/6/1987, vide Exhibit 41, Plaintiff wrote to Defendant-1 mentioning that she had refused to take notice on 7/5/1987 and further that she should procure income tax clearance certificate and no objection certificate for execution of sale. In last paragraph Plaintiff has called for execution of sale deed within maximum period of 2 months. Plaintiff has stated that Defendant1 cancelled the agreement as per her notice dated 19/8/87. It therefore appears that time as fixed in agreement at Exhibit 34 was latter on extended at least till April 1987 end and vide Exh. 44 till May end. This exchange of communications also show that even payment of Rs. 50,000/--was to be made by Plaintiff on 15/2/1987 and Defendant told him to pay it by 4th or 5th March or May, 1987 as her son in law was to arrive from Jabalpur by then. More discussion on this is necessary while considering the other questions little later. Defendant has put an end to agreement on 19/8/1987 after giving two extensions to the Plaintiff to perform his part and with previous warning. The specific language of Exhibit 34 and subsequent dealing & deadlines fixed by her demonstrate that at least Defendant-1 was treating the time as essense of contract.
12. Defendant is relying heavily upon "K.S.
Vidyanadam v. Vairavan", wherein suit came to be filed almost 21.5 years after the agreement. Hon'ble Apex Court observes:
8. Section 55 of the Contract Act is in three parts. For our purpose it is enough to notice the first two which reads:
35. Effect of failure to perform at fixed time, in contract in which time is essential.-When a party to a contract promises to do a certain thing at or before a specified time, or certain things at or before specified times, and fails to do so any such thing at or before the specified time, the contract, or so much of it as has not been performed becomes voidable at the option of the promisee, if the intention of the parties was that time should be of the essence of the contract.
Effect of such failure when time is not essential.-If it was not the intention of the parties that time should be of the essence of the contract, the contract does not become voidable by the failure to do such thing at or before the specified time; but the promisee is entitled to compensation from the promisor for any loss occasioned to him by such failure.
9. Article 54 of the Limitation Act prescribes three years as the period within which a suit for specific performance can be filed. The period of three years is to be calculated from the date specified in the agreement for performance or in the absence of any such stipulation within three years from the date the performance was refused.
10. It has been consistently held by the Courts in India, following certain early English decisions, that in the case of agreement of sale relating to immovable property, time is not of the essence of the contract unless specifically provided to that effect. The period of limitation prescribed by the Limitation Act for filing a suit is three years. From these two circumstances, it does not follow that any and every suit for specific performance of the agreement (which does not provide specifically that time is of the essence of the contract) should be decreed provided it is filed within the period of limitation notwithstanding the time limits stipulated in the agreement for doing one or the other thing by one or the other party. That would amount to saying that the time-limits prescribed by the parties in the agreement have no significance or value and that they mean nothing. Would it be reasonable to say that because time is not made the essence of the contract, the time- limit(s) specified in the agreement have no relevance and can be ignored with impunity ? It would also mean denying the discretion vested in the Court by both Sections 10 and 20. As held by Constitution Bench of this Court in Chand Rani v. Kamal Rani. , "it is
clear that in the case of sale of immovable properly there is no presumption as to time being the essence of the contract. Even if it is not of the essence of the contract, the Court may infer that it is to be performed in a reasonable time if the conditions are (evident ?) : (1) from the express terms of the contract; (2) from the nature of the property; and (3) from the surrounding circumstances, for example, the object of making the contract". In other words the Court should look at all the relevant circumstances including the time-limit(s) specified in the agreement and determine whether its discretion to grant specific performance should be exercised. Now in the case of urban properties in India it is well-known that their prices have been going up sharply over the last few decades -particularly after 1973*. In this case, the suit property is the house property situated in Madurai, which is one of the major cities of Tamil Nadu. The suit agreement was in December 1978 and the six months' period specified therein for completing the sale expired with 15th of June, 1979. The suit notice was issued by the plaintiff only on 11-7-1981, i.e., more than two years after the expiry of six months' period. The question is what was the plaintiff doing in this interval of more than two years? The plaintiff says that he has been calling upon Defendants 1 to 3 to get the tenant vacated and execute the sale deed and that the defendants were postponing the same representing that the tenant is not vacating the building. The defendants have denied this story. According to them, the plaintiff never moved in the matter and never called upon them to execute the sale deed. The Trial Court has accepted the defendants' story whereas the High Court has accepted the plaintiffs story. Let us first consider whose story is more probable and acceptable. For this purpose, we may first turn to the terms of the agreement. In the agreement of sale, there is no reference to the existence of any tenant in the building. What it says is that within the period of' six months. The plaintiff should purchase the stamp papers and pay, the balance consideration whereupon the defendants will execute the sale deed and that prior to the registration of the sale deed, the defendants shall vacate and deliver possession of the suit house to the plaintiff. There is not a single letter or notice from the plaintiff to the defendants calling upon them to get the tenant vacated and get the sale deed executed until he issued the suit notice on 117-1981. ---induced the plaintiff to wake up after 21/2 years and demand specific performance.
11. Sri Sivasubramanium cited ----. Except paying the small amount of Rs. 5,000/-(as against the total consideration of Rs. 60,000/-) the plaintiff did nothing until he issued the suit notice 2 1/2 years after the agreement. Indeed, we are inclined to think that the rigor of the rule evolved by Courts that time is not of the essence of the contract in the case of immovable properties evolved in times when prices and values were stable and inflation was unknown -requires to be relaxed, if not modified, particularly in the case of urban immovable properties. It is high time, we do so. Learned Counsel for the plaintiff says that when the parties entered into the contract, they knew that prices are rising ; hence, he says, rise in prices cannot be a ground for denying specific performance. May be, the parties knew of the said circumstance but they have also specified six months as the period within which the transaction should be completed. The said time-limit may not amount to making time the essence of the contract but it must yet have some meaning. Not for nothing could such time-limit would have been prescribed. Can it be stated as a rule of law or rule of prudence that where time is not made the essence of the contract, all stipulations of time provided in the contract have no significance or meaning or that they are as good as non-existent ? All this only means that while exercising its discretion, the Court should also bear in mind that when the parties prescribe certain time-limit(s) for taking steps by one or the other party it must have some significance and that the said time- limit(s)cannot be ignored altogether on the ground that time has not been made the essence of the contract (relating to immovable properties).
Hon'ble Apex Court has laid down that fixation of period within which contract is to be performed does not make stipulation as to time essence of contract. Nor default clause in contract by itself evidences intention to make time of essence. Time is of essence if parties intend it to be so & such an intention may be evidenced either by express stipulations or by circumstances which are sufficiently strong to displace ordinary presumption that in contract for sale of land stipulation as to time is not of essence. It is also observed that if time is not of essence originally, it can be made of essence even subsequently by serving notice on other party.
Another case relied upon him is Govinda Prasad
Chaturvedi v. Hari Dutta Shastri. Hon'ble Apex Court in paragraph 5 has held that mere fixation of period in agreement does not make stipulation as to time the essense of contract. It has been observed that in case of a contract for sale of immovable property, normally time is not essense and intention of parties to treat time as essence of contract may be evidence by circumstances which should be sufficiently strong to displace the normal presumption. Clause number 4 of the agreement which provided for forfeiture without further notice of earnest money if sale deed was not obtained by purchaser within two months has been held not to make time essense of contract as language did not unmistakably reveal such intention. It is to be noted that there was no such plea in written statement or in evidence of landowner before Trial Court. Written statement only mentioned that appellant before Hon'ble Apex Court did not perform his part of contract within stipulated time and that contract thereafter did not subsist and the suit was consequently misconceived.
In her written statement, present Appellant/Defendant1 denied not only case of Plaintiff but stated that in spite of several registered notices and telegraphic notices, he could not get sale deed executed and he never tendered the money. Defendant-1 expressly stated that time was essense of contract and also pointed out that contention of Plaintiff that she waived benefit of said stipulation was incorrect. In view of this position, question is not whether time could have been made essence of contract in the circumstances but whether parties made it an essence for the contract between them. It is clear that Defendant had introduced time limit both for the purposes of receipt of amount of Rs. 50,000/--and also for the purposes of execution of final sale deed. I find that it was her property and she could have proceeded to sell it in mode and manner she wanted. Plaintiff's cross examination also shows that he agreed to time stipulations. Language of Exhibit 34 shows that time was essense for its performance. Though she granted certain extensions to comply therewith to Plaintiff, there is nothing on record to show that Defendant-1 relinquished that right at any time thereafter . More discussion in this respect is being undertaken while considering other issues in this judgment. In view of 1997 judgment of Hon Apex Court in case of K.S. Vidyanadam v. Vairavan (supra), I feel that primacy needs to be given to intention of parties and there cannot be any presumption about time not being essense of contract in transactions of sale and purchase of immovable property. Law does not disregard time stipulations or require vendor like Defendant-1 to wait for 3 years in such contracts with express stipulation of time limit and its consequences. I therefore hold that here parties willingly made time the essence of contract. Question B above is thus answered in affirmative.
13. At this stage it will be convenient to find out whether the Plaintiff has proved that he was ready & willing to perform his part of contract. Simultaneously, question whether discretion under Section 20 of Specific Relief Act has been judiciously exercised in the matter can also be conveniently looked into. Before picking this aspect, it will be necessary to appreciate case law cited by both parties indicating norms for this purpose. I-In "Bijai Bahadur v. Shri Shiv C. P. Sen" relied on by Adv. Chauhan, Hon'ble Single Judge has observed plaintiff must not only aver but also 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. Further considering this aspect and the difference between "readiness" and "willingness" envisaged in Section 16(c) of Specific Relief Act, it is observed:
13. There seems to be an essential difference between the terms 'willingness' and 'readiness'. Since these two terms having almost a similar meaning have been used in a sequence, it would only be fair to assume that the legislature had done this with a view to distinguish between the two. What is the difference between 'willingness' and 'readiness' must, therefore, be examined first.
14. According to Bouvier's Law Dictionary, IIIrd Revision, the expression 'ready and willing' has been defined as "implies capacity to act as well as disposition." In Stroud Dictionary, this expression is defined as under:
It implies not only the disposition but the capacity to do the act.
Plaintiff must show that non-completion of the contract was not the fault of the plaintiffs and that they were disposed and able to complete it if it had not been renounced by the defendants.
15. In Webster Dictionary page 796, 'ready' is defined as "prompt in performance or action" and 'willing' at page 1138 is defined as "having the mind inclined not averse, desirous, ready, relating to or pertaining to power or process of choice, volitional.
16. Corpus Juris Secundum defines the word "ready" is "variously defined as meaning prepared for what one is about to do or experience; prepared for immediate movement or action: causing no delay for lack of being prepared; equipped or supplied with what is needed for some act or event, inclined or willing." It also mentions that 'ready' has been held to be synonymous with 'prompt' 'Willing' has been defined as "desirous, inclined or favourably disposed in mind; ready; it has been compared with 'justified'. 'Willingness', according to Corpus Juris Secundum, "Signifies a mental state and may be evidenced by consent."
17. All the above definitions clearly point out at least one thing that 'readiness and willingness' are sometimes treated as synonymous and have almost the same sense or meaning but there is a clear cut distinction between the two while 'willingness' is merely mental process, 'readiness' is something to do with translating that will into action and is preceded by necessary preparation for being in a position to be ready. In other words, we can say that while 'willingness' may be something to do mainly with a person's mental process to do an act, his readiness implies close proximity of such willingness and its ultimate physical manifestation. 'Readiness' must in all cases be backed by 'willingness' and its imminent physical action is demonstrated when it is about to be put into action. Time lag between the two may sometimes be very short, may even be negligible, but it must always be preceded by an intention or a will to do. In short, 'readiness' must be said to be the total equipment of a person who is willing to do a thing before he actually does it.
18. There may be cases where though a person may be willing, yet may not be able to do what he wills. He cannot be said to be ready to do it. In other cases, the person may possess all that is necessary to do an act. He may be ready but if the will to do is not there, his willingness will be lacking. One cannot remain unaware of such cases in which the plaintiff may go on demanding performance of the contract for keeping the agreement alive, yet really speaking he does not intend to pursue the matter but only wants to keep it alive for some ulterior motives. Since in granting specific performance the Court acts in equity, it becomes necessary that a high standard of equitable conduct must be displayed by the plaintiff. It is for this reason that a rigor of this kind has been provided in Section
16. It is primarily to eliminate any element of fraud and risk of a party taking undue advantage of the other that the discretion to decree specific performance has still been left with the Court.
II---In N.P. Thirugnanam v. R. Jagan Mohan Rao,
relied upon by Defendant, Hon Apex Court has observed that such readiness and willingness of plaintiff must be shown to be in existence from the date of execution of agreement till end. It has been also observed that relief of grant of specific performance being discretionary, conduct of plaintiff also assumes importance. Following paragraph clinches the issue:
5. It is settled law that remedy for specific performance is an equitable remedy and is in the discretion of the Court, which discretion requires to be exercised according to settled principles of law and not arbitrarily as adumbrated under Section 20 of the Specific Relief Act 1963 (for short, 'the Act'). Under Seciton 20, the court is not bound to grant the relief just because there was valid agreement of sale. Section 16(c) of the Act envisages that plaintiff must plead and prove that he had 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 those terms the performance of which has been prevented or waived by the defendant. The continuous readiness and willingness on the part of the plaintiff is a condition precedent to grant the relief of specific performance. This circumstance is material and relevant and is required to be considered by the court while granting or refusing to grant the relief. If the plaintiff fails to either aver or prove the same, he must fail. To adjudge whether the plaintiff is ready and willing to perform his part of the contract, the court must take into consideration the conduct of the plaintiff prior and subsequent to the filing of the suit along with other attending circumstances. The amount of consideration which he has to pay to the defendant must of necessity be proved to be available. Right from the date of the execution till date of the decree he must prove that he is ready and has always been willing to perform his part of the contract. As stated, the factum of his readiness and willingness to perform his part of the contract is to be adjudged with reference to the conduct of the party and the attending circumstances. The court may infer from the facts and circumstances whether the plaintiff was ready and was always ready and willing to perform his part of contract.
III. In "Aniglase Yohannan v. Ramlatha", Hon'ble
Apex Court observes that Section 16(c) of the Act mandates the plaintiff to aver in the plaint and establish as the fact by evidence aliunde that he has always been ready and willing to perform his part of the contract. The basic principles behind Section 16(c) read with Explanation. (ii) is that any person seeking benefit of the specific performance of contract must manifest that his conduct has been blemishless throughout entitling him to the specific relief. The provision imposes a personal bar. The Court is to grant relief on the basis of the conduct of the person seeking relief. If the pleadings manifest that the conduct of the plaintiff entitles him to get the relief on perusal of the plaint he should not be denied the relief. In said case, the agreement fixed period during which the sale was to be completed to be six months. Undisputedly, immediately after the expiry of this period lawyer's notice was given calling upon the appellant-defendant to execute the sale deed. The plaint also averred that the plaintiff met the defendant several times and requested him to execute the sale deed. On finding inaction on his part, the suit for specific performance of contract was filed and there was clear averment in plaint that the plaintiff was always ready to get the sale deed prepared after paying necessary consideration and also that defendant is bound to execute the sale deed on receiving the balance amount and the plaintiff was entitled to get the document executed by the defendant. Hon'ble Apex Court held order decreeing suit for specific performance in favour of plaintiff to be proper.
IV. In this connection in Sugani v. Rameshwar Das,
Hon'ble Apex Court observes:
17. Lord Campbell in Cork v. Ambergate etc. and Railway Co. (1851) 117 ER 1229, observed that in common sense the meaning of such an averment of readiness and willingness must be that the noncompletion of the contract was not the fault of the plaintiffs, and that they were disposed and able to complete it had it not been renounced by the defendant.
18. The basic principle behind Section 16(c) read with Explanation (ii) is that any person seeking benefit of the specific performance of contract must manifest that his conduct has been blemishless throughout entitling him to the specific relief. The provision imposes a personal bar. The Court is to grant relief on the basis of the conduct of the person seeking relief. If the pleadings manifest that the conduct of the plaintiff entitles him to get the relief on perusal of the plaint he should not be denied the relief.
V. Adv. Sen for Respondent/Plaintiff has relied upon judgment of Hon Apex Court in case of Pandurang Ganpat Tanawade v. Ganpat Bhairu Kadam and others, reported at . There while
considering the question whether readiness and willingness has been proved by plaintiff, Hon'ble Court noticed that there were averments in plaint that purchaser sent registered notices to seller to execute sale deed, further averment by buyer that as per agreement he was willing to pay fees required for sale deed, costs of registration and balance amount of sale deed. There was a statement in deposition before Court by Purchaser that he had sent notices to seller and was willing to pay fees as aforesaid and balance amount immediately. In this background, Hon Apex Court held that buyer not only averred but also proved that he was ready and willing to perform his part of contract as required under Section 16(c).
14. In this case before me in paragraph 7 of his plaint Plaintiff asserts that he was and is ever ready to perform his part of contract and to get the sale deed executed on payment of balance consideration. In her written statement, Defendant-1 denied this and stated that in spite of several registered notices and telegraphic notices, he could not get sale deed executed and he never tendered the money. Defendant-1 expressly stated that time was essense of contract and also pointed out that contention of Plaintiff that she waived benefit of said stipulation was incorrect. It is further stated that he filed the suit after three years and Defendant had decided not to sell the house. In paragraph 3 of his deposition, Plaintiff has reiterated his plea and then stated that he was even in a position to pay the amount of consideration at the time of registration. He contended that Defendant-1 was to procure no objection certificate from Nagpur Improvement Trust, income tax clearance certificate and was to produce title deed. He further stated that he repeatedly and intermittently inquired from Defendant-1 whether tenant had vacated and she procured the required documents. He stated that Defendant told him that attempts were being made for that purpose and hence sale deed could not be executed. He pointed out that he issued notice dated 30/12/1986 to her but in vain. In cross examination, he denied that he was not financially sound to pay balance sale consideration or he never approached Defendant-1 with balance sale consideration. He also denied that in spite of repeated demands by Defendant-1 he did not supply her copy of Exhibit 34.
It is to be noticed that burden to prove his readiness and willingness was upon Plaintiff i.e. present Respondent. He has not filed on record the copy of notice dated 30/12/1986 forwarded by him Defendant-1. Defendant has in her reply notice dated 11/1/1988 at Exhibit 37 forwarded to legal notice dated 5/1/1988 (Exhibit 38) sent by Plaintiff, specifically averred in paragraph 3 that Plaintiff never had the amount of Rs. 2,96,000/-(Rs. Two lakh Ninety six thousand only) to purchase the property. Even in written statement, this stand was reiterated by her. Even Defendant-1 has not filed copy of notice dated 19/8/1987 by which she communicated cancellation of agreement to Plaintiff. However receipt of this communication is accepted by Plaintiff in plaint paragraph 6. In cross examination also he accepted receipt of this notice repudiating the contract. Defendant-1 in her examination in chief or in cross examination did not say anything about this notice dated 19/8/1987. She has only stated that by telegram she intimated Plaintiff about cancellation of contract. She stated that she handed over all her documents to her advocate. In plaint paragraph 6, Plaintiff has stated that:
The plaintiff thereafter received a notice from defendant dated 19/8/1987, falsely alleging that the plaintiff had no sufficient funds for purchasing the property, and that the agreement was cancelled. The plaintiff submits that he had got sufficient funds and was all the while ready and willing to purchase the property but the defendant was avoiding to execute the sale deed for one reason or the other.
Plaintiff therefore knew that his capacity to pay balance sale consideration amount was always in dispute and apart from orally expressing that capacity, he has not placed on record any Bank passbook or other similar document or accounts to substantiate it. Trial Court has not recorded any finding about this capacity of Plaintiff at all.
15. It is also necessary to consider whether Plaintiff has by his conduct demonstrated his readiness and willingness to perform his part of contract. He has issued 2 notices to Defendant-1 and the first one is dated 30/12/1986. He has chosen not to file its copy on record and to prove its contents. He has thereafter stated that he received notice dated 13/4/1987 sent by Defendant-1. He has proved this notice of Defendant as Exhibit 35, notice dated 24/12/1987 issued by Defendant as Exhibit 36 and her notice dated 11/1/88 as Exhibit 37. He also proved office copy of his notice dated 5/1/88 as Exhibit 38. In cross examination he stated that he issued four or five notices to Defendant and therefore could not tell which one of them was dated 24/6/1986. He stated that he did not receive any notice from Defendant dated 24/2/1987. He accepted that he received 2 or 3 notices but he did not know which one of them was dated 13/4/1987 and 18/6/1987. Notice dated 24/6/1986 was shown to him and then he said that that it was having his signature. It came to be Exhibited as Exhibit 41. (Note:--Deposition of Defendant is also marked by Trial Court as Exhibit 41.) Defendant-1 in her deposition at Exhibit 41 stated that she was first to issue notice but said notice was refused by Plaintiff. She proved refused envelope at Exhibit 42. She stated that postal acknowledgment was at Exhibit 43 while office copy of notice was at Exhibit 44. Perusal of record reveals that Exhibit 42 envelope is addressed to Plaintiff and it has a separate acknowledgment slip, white in colour, attached to it. Exhibit 43 is green acknowledgment addressed to Advocate D.C. Chahande of Kamptee and from postal stamp its date appears to be 19/5/1987. It is sent by Advocate Asgar Ali who represented Defendant-1. Exhibit 44 is office copy of legal notice dated 17/5/1987 which appears to have been sent by Advocate Asgar Ali to Advocate D.C. Chahande. Thus Exhibit 43 and 44 are unconnected with sealed envelope Exhibit 42. Said envelope has not been opened by parties before Trial Court or even before this Court. From various dates written in handwriting on envelope, it appears to have been forwarded by Defendant-1 to Plaintiff on 24/2 and last date upon envelope in hand writing appears to be 21/3. In notice Exhibit 44, Defendant has stated that she forwarded registered notice on 13/4/87 calling upon Plaintiff to get sale deed registered by 30/4/1987 but there was no response. It further mentions that agreement for sale was to be drawn after receipt of Rs. 50,000/--by Defendant but said amount was never paid by Plaintiff. It mentions that Plaintiff had through one Gupta sent a message that he would pay Rs. 80,000/--on 15/2/87 and thereafter agreement for sale would be prepared. This amount of Rs. 80,000/-is mentioned as Rs. 50,000/-by her in notice at Exhibit 35. Defendant stated that as her son-in-law at Jabalpur was to arrive on 4th or 5th of May 1987, she sent a message through very same Gupta to Plaintiff that he should pay promised amount of Rs. 80,000/--by then. These dates i.e. 4th or 5th of May 1987 are mentioned as 4th or 5th of March 1987 in said Exhibit 35. In concluding paragraph of Exhibit 44, Defendant has written that without prejudice to her rights she was still willing to execute sale deed if balance consideration was paid to her and sale deed was registered by 31/5/1987. She stated that in default she would be free to sell the property to any other person. She has not been subjected to any cross examination in this respect. Thus by notice forwarded in April 1987 vide Exhibit 35, Defendant called upon Plaintiff to have sale deed by 30/4/1987. By notice at Exhibit 44, she called upon him to obtain sale deed by 31/5/1987. In both these notices she also communicated to him that in default she would sell property to somebody else. It appears that thereafter on 19/8/87, she repudiated the agreement.
16. Though Plaintiff contended that condition requiring payment of Rs. 50,000/--by 14/10/1986 has to yield to earlier clause in Exhibit 34, in chief he has stated that on 14/10/86 Defendant-1 had come to Nagpur at the office of Sub Registrar and he had also gone there with Rs. 50,000/--. There Defendant expressed willingness to execute document at her residence and therefore all of them went to her residence where she declined to receive cash of Rs. 50,000/--stating that she was not in need of amount. He stated that Defendant told him that as one tenant did not vacate the part of house, Plaintiff should pay said amount only after tenant vacated. It is to be noted that this story at variance with express stipulation in Exhibit 34 is not pleaded by him in plaint. In cross examination he accepted that it was agreed to pay amount of Rs. 50,000/--in between 12 to 14th October 86 and hence said clause was incorporated in Exhibit 34. He however stated that it was not agreed that non-payment would result in cancellation of agreement and still the clause to that effect appeared in Exhibit 34. He stated that he did not remember whether this formed part of his pleading. His further cross examination reveals that in notices exchanged between parties, he never inquired whether tenant had vacated or never mentioned that tenant vacated before 30/12/86 or as tenant vacated, Defendant should accept Rs. 50,000/-. He stated that in January, February 87 Defendant-1 disclosed to him that house was vacated by tenant but he never went to her to offer Rs. 50,000/-. He could not assign any reason as to why all details about Rs. 50,000/--disclosed orally by him are missing from his pleadings. He accepted that he did not have any document to show that he had ready cash of Rs. 50,000/-on 14/10/86. His witness Balaji (Exhibit 39) states that Plaintiff and agreed to pay Rs. 6000/ after week on 5/10/86. He stated that after one-week parties had come to the office of Sub-Registrar at Nagpur and he was also present there. As it was taking time, Defendant left the office and went to residence. He and Plaintiff followed her. At residence she disclosed that she would accept amount of Rs. 50,000/-subsequently as tenant did not vacate. In cross examination he admitted that he had no idea of terms and conditions of the agreement. He stated that after payment of earnest amount of Rs. 5000/( five thousand), balance amount was agreed to be paid within 8 days. He accepted that upon payment of Rs. 50,000/--full-fledged agreement was to be reduced into writing. This discussion shows that Plaintiff could not prove that he had amount of Rs. 50,000/-with him on 14/10/86 and he also could not prove about oral modification of condition to pay that amount or its consequences as tenant did not vacate. There is no whisper about it in any of his legal notices or even in plaint. His witness Balaji has also not supported him in this respect. Stand of Plaintiff about this condition or payment is shaky since beginning. This entire story therefore is by way of afterthought. Conduct ascribed to Defendant to come to office of Sub-Registrar, then agreeing to execute document at her residence and then not accepting Rs. 50,000/--at residence under pretext that tenant had not vacated does not inspire confidence because work to be done in the office of Sub-registrar could not have been done at her residence. Further, it was not necessary to come to that office if she wanted to postpone receipt of amount as tenant had not vacated.
17. Another reason put forth by Plaintiff is non-availability of income tax clearance certificate and no objection certificate. Admittedly Exhibit 34 does not contain any such requirement or stipulation. Even in his plaint there is no such plea. In her written statement Defendant-1 has not mentioned anything about it. However in her legal notice at Exhibit 35 issued in April 1987, she has demanded from Plaintiff xerox copies of Exhibit 34 and proposed sale-deed draft for obtaining income tax clearance and no objection from Nagpur improvement trust. Plaintiff has not shown compliance with this request. On the contrary in his notice dated 24/6/1987 (Exhibit 41) he has called upon Defendant-1 to prepare documents like tax clearance certificate and no objection certificate from Nagpur Corporation. In fact in notice after mentioning these two documents he has used the words "whatever be required". In concluding paragraph of this communication, Plaintiff states to get sale deed within maximum two months or else he would take legal action. In his evidence he has not pointed out when he supplied draft sale deed or copy of Exhibit 34 to Defendant-1. When by notice issued a month and half earlier vide Exhibit 35, Defendant-1 told him to get sale deed by 30/4/1987 or else she would execute sale deed in favour of some other person, she expressly demanded these copies or documents in it & hence reference thereto in Exhibit 41 must be naturally expected. Strangely Exhibit 41 does not mention Exhibit 35 or even request for documents made in it and proceeds to grant maximum two months time to Defendant-1 to execute sale deed. In his cross-examination, initially he avoided to state whether any of the notices issued by him to Defendant was bearing date 24/6/1986. On 24/12/1987 Defendant-1 vide Exhibit 36 wrote to Plaintiff that he forwarded her copies of sale deed without any covering letter that too after cancellation of agreement and she told him to collect Rs. 5000/ by surrendering original receipt. Again all these facts are missing from his pleadings.
18. It is no doubt true that Defendant-1 has also not placed on record copy of notice dated 30/12/86 or copy of notice dated 19/8/87 terminating the agreement. She has mentioned amount of Rs. 50,000/-as agreed to be paid on 15/2/87 and also as Rs. 80,000/-subsequently. She has also not produced copy of her reply to notice dated 30/12/86. But in the facts, basic burden is upon Plaintiff. It was for him to show that he was financially capable of paying Rs. 50,000/-or Rs. 2,96,000/-to complete the transaction. His financial capacity was being questioned by Defendant and in spite of that, he failed to prove it. Not only this, he took specific stand on certain vital issues only in oral deposition for the first time without any pleadings. Though, he accepts service of notice Exhibit 35 or Exhibit 44, he did not take any timely steps to obtain sale deed or did not give any reply to Defendant-1 alleging lack of bonafides on her part. On the contrary his notice at Exhibit 41 creates doubts about his bonafides. It is apparent that even at that stage Plaintiff was not certain about the documents required for registration and execution of sale deed. Even after termination of agreement on 19/8/87, he has chosen to file suit after long delay on 12/10/1989. Such conduct on part of a person who vide Exhibit 41 wanted sale deed at the most within two months is beyond comprehension. Any prudent buyer ready with amount to have sale deed would have immediately filed suit after getting notice of repudiation of agreement for sale. Only explanation given by him that his advocate promised to institute suit within limitation is far from satisfactory. Not only this, even then his pleadings lack in material particulars and are insufficient to meet two extensions given to him by Defendant. All this only points to absence of requisite funds with him. I find that this attitude to buy time and conduct of Plaintiff is totally overlooked by Trial Court. Plaintiff has failed to establish that he was ready and willing all throughout to get sale deed registered from Defendant. In any case, by his conduct he has established himself to be not diligent and also honest in the matter. He did not make clean breast of matter before the court. I therefore find that Court below could not have exercised discretion under Section 20 of Act in his favour and ought to have refused decree for specific performance to him. Question number D & E above are thus answered in negative i.e. against Plaintiff and in favour of Defendant/present Appellant.
19. Next contention of Advocate C. P. Sen is that the Appeal has abated. It is admitted position that original Defendant or Appellant No 1 Smt. Shamabai has expired on 25/10/1998. Present Appellant Nos. 2 and 3, the subsequent purchasers from her then filed Civil Application 3145/2002 (stamp No. 21769/1998 with affidavit dated 2/11/1998) seeking deletion of her name from record as she expired without leaving any legal heir. On 18/6/2002 after noticing the contention that Appellant Nos. 2 and 3 claim to be in possession of suit property, this Court granted that permission at the risk of Appellants. Thereafter present Respondent/original Plaintiff filed Civil Application 5369/2004 for dismissal of this Appeal contending that on account of death of landowner, subsequent purchasers do not get any right to prosecute the Appeal as transfer in their favour is affected by lis-pendans. It is contention of Respondent/Plaintiff that surviving Appellant Nos. 2 and 3 cannot challenge the decree for specific performance on any grounds and the entire Appeal has abated as legal heirs of deceased landowner i.e Defendant-1 are not brought on record. On 16/8/2004, this Court disposed of Civil Application 5369/2004 observing that the contentions therein can be considered at the stage of final hearing. These contentions are being opposed by Advocate Chauhan who states that Appellant No. 1 (original Defendant No. 1) expired without leaving any legal heirs. He further states that that aspect is totally irrelevant inasmuch as present Appellant Nos. 2 and 3 are in possession of suit property and as such are entitled to protect it. He argues that definition of phrase "legal representative" in CPC covers them and also in view of Section 19(b) of Specific Relief Act they are entitled to defend the suit. He argues that if they establish that suit itself could not have been decreed at all, their sale gets validated even otherwise. Both learned Counsel have made reference to various judgments in support of their stance.
20. Respondents contend that transferees from original Defendant No. 1 have no independent locus and status.
i------Reliance is being placed on judgment of Hon'ble Apex Court reported at Samarendra Nath Sinha v. Krishna C. P.
Sen Nag, and following paragraph in it is self-explanatory:
16. What then is the position of the respondent once it is held that the final decree for foreclosure was validly passed by the Trial Court? Could he challenge that decree in an appeal against it in the High Court on the basis that he was entitled to redeem the said mortgage? Section 91 of the Transfer of Property Act provides that besides the mortgagor any person other than the mortgagee who has any interest in or charge upon the property mortgaged or in or upon the right to redeem the same may redeem or institute a suit for redemption of such mortgaged property. An execution purchaser therefore of the whole or part of the equity of redemption has the right to redeem the mortgaged property. Such a right is based on the principle that he steps in the shoes of his predecessor-in-title and has therefore the same rights which his predecessor-in-title had before the purchase. Under Section 59A of the Act also all persons who derive title from the mortgagor are included in the term "mortgagor" and therefore entitled to redeem. But under Section 52 which incorporates the doctrine of lis pendens, during the pendency of a suit in which any right to an immovable property is directly and specifically in question such a property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein except under the authority of the court and on such terms as it may impose. Under the Explanation to that section the pendency of such a suit commences from the date of its institution and continues until it is disposed of by a final decree or order and complete satisfaction or discharge of such a decree or order has been obtained. The purchaser pendente lite under this doctrine is bound by the result of the litigation on the principle that since the result must bind the party to it so must it bind the person deriving his right, title and interest from or through him. This principle is well illustrated in Radhamadhub Holdar v. Monohur, (1888) 15 Ind App. 97 (PC) where the facts were almost similar to those in the instant case. It is true that Section 52 strictly speaking does not apply to involuntary alienations such as court sales but it is well established that the principle of lis pendens applies to such alienations. (See Nilkant v. Suresh Chandra (1885) 12 Ind App 171 (PC) and Motilal v. Karrabuldin (1897) 24 Ind App 170 (PC). It follows that the respondent having purchased from the said Hazra while the appeal by the said Hazra against the said preliminary decree was pending in the High Court, the doctrine of lis pendens must imply to his purchase and as aforesaid he was bound by the result of that suit.
In the view we have taken that the final foreclosure decree was competently passed by the Trial Court, his right to equity of redemption was extinguished by that decree and he had therefore no longer any right to redeem the said mortgage. His appeal against the said final decree was misconceived and the High Court was in error in allowing it and in passing the said order of remand directing the Trial Court to reopen the questions of redemption and to allow the respondent to participate in proceedings to amend the said preliminary decree.
ii--- Gauru Dutt Makaraj v. Mohammad, holds that
applicability of Section 52 of Transfer of Property Act cannot depend on matters of proof of strength or weakness of the case on one side or the other in bonafide proceedings. To apply any such test is to misconceive the object of the enactment and the Court is in error when it lays stress on the fact that agreement on which the suit is based has not been registered. These observations are made while Privy Council attempted to find out whether right to immovable property was "directly and specifically in question" both on the claim for specific performance and alternative claim for declaration of charge in respect of sum advanced. Appellant before Hon'ble Court had instituted suit for enforcement of mortgage and one of the defences of defendant was that mortgage was effected during pendency of suit No. 229 and hence his claim was not maintainable. Said suit was already compromised. Trial Court held against defendant observing that as agreement dated 8/6/1932 was not registered, it was in admissible and could not create valid charge. This reasoning was maintained by High Court. It is therefore clear that in subsequent suit, finding was being given about the issues and subject matter in previous litigation & hence, Privy Council was required to find out whether right to immovable property fell for adjudication in that earlier suit. In present facts, this Court is not attempting to find out whether right to property of deceased original Defendant No. 1 was in question in Civil Suit before Trial Court as that position is well admitted. The ruling therefore has no application.
iii---In A.I.R. 1949 Bombay 367 Digambarrao Deshpande v. Rangrao Desai, Division Bench of this Court has held that a final judgment in the suit binds not only the parties to the suit but also the transferee pendente lite from them.
iv---Similarly in A.I.R. 1928 Bombay 65 Basappa v. Bhimangowda, Division Bench of this Court holds that such transferee is bound by decree and it is immaterial whether he had notice of pending proceedings or not. It has been held that such transferee cannot be representative of transferor within meaning of Section 47 CPC for the purposes of attacking the decree holders right to sue. Plaintiff there brought a suit in 1918 against his brother Basangowda for partition and said brother after he sold certain property to defendants, expired. His widow and children were brought on record and ultimately decree in terms of compromise was passed. Plaintiff there brought suit against defendant's for recovery of possession as per said compromise. Trial Court dismissed that suit but on appeal, District Judge held that purchase by defendants was hit by provisions of Section 52 of TP Act and they were bound by consent decree. High Court found that defendants need not have been made parties to 1918 suit and they were not representatives of Basangowda and Transfer in their favour cannot be regarded as giving them any right to attack plaintiffs right to sue. Division Bench noticed view expressed in Sheo Narain v. Chunni Lal (1900) 22 All 243 & observed that judgment limits the decision to regarding the transferee as representative of the alienor only in the sense that, being bound by the decree afterwards passed, he is competent under Section 244 (now Section 47) of the Code, to raise in the execution of that decree any of the questions mentioned in that Section. One more thing to be noticed in this case is that widow and children of Basangowda were very much alive when consent decree on the basis of which Plaintiff was recovering possession was competently passed.
21. To point out abatement, reliance is placed by Respondents on provisions of Order 22 Rule 1 r/w Rule 11 C.P.C. as also on Rameshwarprasad v. Shambehari A.I.R. 1966 SC 1427 Sri Chand v. Jagdish Parshad Badni (dead) by L.R. v. Sri Chand (dead) by L.R. It is contended that as legal heirs of deceased original Defendant No. 1 were not brought on record, decree of specific performance passed against her has become final and, if in present Appeal this Court allows grievance of Appellant Nos. 2 and 3; conflict in decrees would result.
Sri Chand v. M/s Jagdish Parshad (supra) is latter judgment of Hon'ble Apex Court and in it during the pendency of a suit by A against B three persons stood sureties for the satisfaction of the decree to be passed in the suit by executing an unregistered bond. A sought to execute the decree obtained in the suit against the sureties by enforcing the surety bond as in the meantime B had been wound up on A's petition. The sureties objected to the execution against them on the grounds, inter alia that the surety bond being unregistered was not enforceable and that the decree holder A having committed an act by which the remedies of the sureties against the judgment debtor B had been impaired, the sureties stood discharged. These objections were rejected by the executing Court and the order was upheld by the High Court in appeal. The sureties appealed to the Supreme Court by special leave but before the record was transmitted to the Supreme Court one of the appellants sureties died without his heirs being brought on record as appellants within time prescribed under Order 16, Rule 12 Supreme Court Rules. An application for condensation of delay was rejected by the High Court and was confirmed by the Supreme Court with the result that the appeal abated so far the deceased appellant surety was concerned. The question was whether the appeal had abated in its entirety or whether the Supreme Court could proceed with the hearing of the appeal so far as the remaining sureties were concerned and reverse the order of the High Court under Order 41, Rule 4, Civil P. C. Hon'ble Apex Court held that the appeal had abated in its entirety. The order of the High Court holding that the sureties were liable to satisfy the claim notwithstanding their objections, having become final so far as the deceased surety was concerned, there was possibility of two inconsistent orders coming into existence if the appeal were to be decided. Earlier judgment --Rameshwarprasad v.
Shambehari has been followed here.
In Badni (dead) by L.R. v. Sri Chand (dead) by L.R (supra) suit for possession by way of redemption was decreed & one of appellants died pending various appeals against the decree before High Court. Decree was based on common issue against the appellants in all appeals. Failure to bring legal representatives of one of deceased-appellants in one appeal was held to result in abatement of other appeals & order of High Court dismissing all appeals as abated so as to avoid conflicting decrees was maintained Hon Apex Court.
Appellants Nos. 2 & 3 rely on AIR 1982 S.C. 948 (1) "Mohammad Arif v. Allah Rabbul Alamin" which considers similar issue in the light of provisions of Order 22, Rule 4, Rule 11 Civil P.C. While setting aside the order of the High Court and sending the appeal back it for disposal according to law, Hon'ble Apex Court observes:--" that the High Court's order stating that the appeal had abated and the appellant Mohammad Arif could not be brought on record as a legal representative of Mohammad Ahmad is clearly wrong. It is true that the appellant did not prefer any appeal to the District Court against the original decree but in the First Appeal he was a party respondent. But that apart, in the second appeal itself Mohammad Arif had been joined as coappellant along with his vendor Mohammad Ahmad. On the death of Mohammad Ahmed all that was required to be done was that the appellant who was on record should have been shown as a legal representative inasmuch as he was the transferee of the property in question and at least as an inter meddler was entitled to be treated as legal representative of Mohammed Ahmed. He being on record the estate of the deceased appellant qua the property in question was represented and there was no necessity for application for bringing the legal representatives of the deceased appellant on record. The appeal in the circumstances could not be regarded as having abated and Mohammad Arif was entitled to prosecute the appeal."
22. Section 52 of the Transfer of Property Act is as under:
Transfer of property pending suit relating thereto During the pendency in any Court having authority within the limits of India excluding the State of Jammu and Kashmir or established beyond such limits by the Central Government of any suit or proceedings which is not collusive and in which any right to immovable property is directly and specifically in question, the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein, except under the authority of the Court and on such terms as it may impose.
Explanation -For the purposes of this section, the pendency of a suit or proceeding shall be deemed to commence from the date of the presentation of the plaint or the institution of the proceeding in a Court of competent jurisdiction, and to continue until the suit or proceeding has been disposed of by a final decree or order and complete satisfaction or discharge of such decree or order has been obtained, or has become unobtainable by reason of the expiration of any period of limitation prescribed for the execution thereof by any law for the time being in force.
The language of Section 52 clearly demonstrates that transfer during pendency of litigation cannot defeat the rights of any party to the suit provided conditions mentioned therein are fulfilled. In present facts, it is no doubt true that all conditions warranting application of Section 52 are fulfilled. However decree of Trial Court against her has been already questioned by original Defendant No. 1 in present Appeal before this Court and thereafter she expired. She effected sale in favour of present Appellant Nos. 2 and 3 and said fact was brought on record by present Respondent/original Plaintiff. Not only this but he also added them as Defendant Nos. 2 and 3 before Trial Court and these Defendants also filed written statement taking appropriate pleas in defence. They also lead evidence and after considering that evidence, Trial Court has decreed the suit by impugned judgment. Trial Court has directed Defendant Nos. 2 and 3 to join Defendant No. 1 and execute sale deed of suit house in favour of Plaintiff. It has also permitted Defendant Nos. 2 and 3 to withdraw amount of Rs. 296000/--which Plaintiff was directed to deposit. Thus there is Decree against Appellant Nos. 2 and 3 and they are entitled to challenge it. Having brought them on record, Respondent cannot contend that Appeal at their instance is not maintainable. It is to be noticed that there was no such contention during lifetime of Appellant No. 1/Defendant No. 1. Before Trial Court, Appellant Nos. 2 and 3 have only tried to establish that they were bonafide purchasers without notice. Before this Court, after death of Appellant No. 1, while granting permission to delete her name this Court noticed that they are in possession of suit property. In her Appeal, original Defendant No. 1 was trying to demonstrate that the Respondent had no right to claim specific performance. As the property is purchased by Appellant Nos. 2 and 3, they can also establish that Respondent had no right to claim or was not entitled to grant of specific performance. In other words, Defendant No. 1 was trying to demonstrate that Respondent/original Plaintiff did not possess any such right and hence Section 52 TP Act was not attracted. Appellant Nos. 2 and 3 are undertaking very same exercise and are advancing her cause by stepping in her shoes and not otherwise. Rights of Respondent bonafide adjudicated in suit contemplated under above Section 52 qua suit property and its original owner (deceased Appellant No. 1) cannot be allowed to be defeated by any transfer during pendency of suit. However such rights are required to be established and Appellant Nos. 2 and 3 being purchasers from Appellant No. 1 step in her footsteps and being in possession, can point out errors committed by Court below only in the light of defences available to her. They can not raise any issue or defence personal to them in the matter.
Samarendra Nath Sinha v. Krishna C. P. Sen Nag, (supra) considers challenge to decree in favour of Mortgagee which had become final in proceedings initiated by respondent who was auction purchaser of the interest of Mortgagor Hazra in court auction. Hazra himself was assignee of original mortgagors and in proceedings instituted by Mortgagee for recovery of money, to annul the right to redeem and for possession original Mortgagors as also Hazra were parties. They did not contest suit and Hazra claimed to be bonafide purchasers without notice & pleaded that loan advanced to a minor without obtaining sanction of District Judge was null and void. Preliminary decree was then passed for payment of amount giving liberty to mortgagee to apply for final decree for sale in default. This decree was unsuccessfully challenged by Hazra in High Court. Ultimately final decree came to be passed but before that respondent purchased interest of said Hazra in auction as mentioned above. In execution of final decree possession was handed over to appellant and then respondent filed application under order 21 rule 100 CPC which came to be rejected by Trial Court. He also filed application under section 151 CPC. He independently filed appeal before High Court against final decree without impleading original mortgagors or Hazra , who still was partially interested in equity of redemption in said property. The observations made by Hon Apex Court need to be understood in this background. Judgment of Privy Council in Gauru Dutt Makaraj v. Mohammad (supra) again shows that earlier suit was compromised and appellant before privy Council was mortgagee during its pendency. Said appellant latter on filed civil suit for enforcement of his mortgage which came to be dismissed in view of provisions of Section 52. In both judgments of this Court Digambarrao Deshpande v. Rangrao Desai (supra) & Basappa v. Bhimangowda (supra) effect of Section 52 TP Act has been considered in subsequent suit and not in the same suit during which transfers took place. It is also to be noted that in all these matters, transferee pendente lite was not party defendant to the suit during which transfer or assignment occurred. Here in facts before me, first appeal under section 96 CPC is itself pending and question is being raised about applicability of said Section 52 on account of death of landowner Appellant No. 1 during pendency of first appeal. Thus rights of present Respondent/original Plaintiff are yet not finally crystallized so as to avoid scrutiny of his entitlement to claim specific performance . The language of Section 52 which contemplates such transfer as intended to defeat or affect his rights, permits original Defendant Nos. 2 and 3 to demonstrate that he has or had no such rights. I therefore find that in facts before me, these rulings have no application.
23. Section 2(11) of the Code of Civil Procedure defines the said expression as follows:
2(11) "legal representative" means a person who in law represents the estate of deceased person. and includes any person who intermeddles with the estate of the deceased and where a party sues or is sued in a representative character the person on whom the estate devolves on the death of the party so suing or sued."
Observations of Hon'ble Apex Court in 2004 AIR SCW 470--Raj C. P. Sen v. Sardari Lal , show that the doctrine of "lis pendens" expressed in the maxim "ut lite pendente nihil innovetur" (during a litigation nothing new should be introduced) has been statutorily incorporated in Section 52 of the Transfer of Property Act, 1882. A defendant cannot, by alienating property during the pendency of litigation, venture into depriving the successful plaintiff of the fruits of the decree. The transferee pendente lite is treated in the eye of law as a representative-ininterest of the judgment-debtor and held bound by the decree passed against the judgment-debtor though neither the defendant has chosen to bring the transferee on record by apprising his opponent and the Court of the transfer made by him nor the transferee has chosen to come on record by taking recourse to Order 22, Rule 10 of the CPC. In case of an assignment, creation or devolution of any interest during the pendency of any suit, Order 22, Rule 10 of the CPC confers a discretion on the Court hearing the suit to grant leave for the person in or upon whom such interest has come to vest or devolve to be brought on record. Bringing of a lis pendens transferee on record is not as of right but in the discretion of the Court. Though not brought on record the lis pendens transferee remains bound by the decree. In the case before Hon'ble Apex Court, the transfer took place during the pendency of the suit in which the decree was passed ex parte. It was sought to be set aside not by the defendant on record but by a person who did not come or was not brought on record promptly and hence apparently appeared to be a third party. However, in view of principle incorporated in S. 52 of T.P. Act , said person would be a representative-in-interest of the defendant judgment-debtor. The plaintiff there did not dispute that the decree though passed against the defendant transferor could be executed even against the lis pendens transferee of defendant though not having been joined in the suit as a party. Hon'ble Apex Court has found that such a person can prefer an appeal being a person aggrieved and it further observed that clearly, the person who is liable to be proceeded against in execution of the decree or can file an appeal against in decree, though not a party to the suit or decree, does have locus standi to move an application for setting aside an ex-parte decree passed against the person (original defendant) in whose shoes he has stepped in. This judgment holds that in the expression employed in Rule 13 of Order 9 of the CPC that "in any case in which a decree is passed ex-parte against a defendant, he may apply for an order to set it aside" the word "he" cannot be construed with such rigidity and so restrictively as to exclude the person, who has stepped into the shoes of the defendant, from moving an application for setting aside the ex-parte decree especially in the presence of Section 146 of the CPC.
In Chiranjilal Shrilal Goenka v. Jasjit Singh,
Hon'ble Apex Court rules that the term legal representative is wide and inclusive of not only the heirs but also inter meddlers of the estate of the deceased as well as a person who in law represents the estate of the deceased. It is not necessarily confined to heirs alone. The executor, administrators, assigns or persons acquired interest by devolution under 0.22, R. 10 or legatee under a Will, are legal representatives. Therefore not only Class I heirs under Section 8 read with Schedule of the Hindu Succession Act but also the executor of the Will are legal representatives within the meaning of Section 2(11). Sudama Devi v. Jogendra Choudhary (FB) has been
quoted in this 1993 judgment by Hon'ble Apex Court. In said case observations made by Full Bench of Hon'ble Patna High Court reveal that the Section 2(11) is a wide and inclusive one and conceives of two distinct categories. Firstly, the heirs or persons, who in law represent the estate of the deceased person. However, at par with them and a class by itself is any person who intermeddles with the estate of the deceased. Such a person is equally a legal representative. The phrase inter meddler with the estate has come to be a term of art and has been construed as one of the widest amplitude. This apart, even the dictionary meaning of the word is one of considerable width. Hon'ble Full Bench has held that an inter meddler (who is on the same footing as an executor de son tort in English law) is one who in any way whatsoever dabbles with or comes in touch with the estate of the deceased. The wide sweep of the phrase, as term of art, and the intention of the legislature in expressly including an inter meddler in the definition of legal representatives under Section 2(11) of the Civil P.C. is thus not in doubt.
This position in law therefore leaves no manner of doubt that the Appellant Nos. 2 & 3 are in fact inter meddlers with the suit property being its purchasers & in its possession. They could have therefore maintained an Appeal under Section 96 independently in case death of Appellant would have occurred during pendency of suit or immediately after its decision. Had Respondent/original Plaintiff not joined them as party defendants before Trial Court, they were also entitled to move appropriate application for coming on record. In fact they represent the estate of deceased in this matter and even if it is presumed that deceased had any legal heir, in view of decree passed against them by Trial Court asking them to join in execution of sale deed with deceased and awarding them balance sale consideration, such legal heir cannot be and could not have been treated as legal representative in present facts. Fact that Appellant Nos. 2 and 3 are co-appellants at the time of institution of this Appeal itself along with Appellant No. 1/original Defendant No. 1 (now deceased) cannot be overlooked. I therefore find no substance in contention of Advocate C. P. Sen that appeal had abated. Accordingly contentions in Civil Application No. 5369/2004 moved by Respondent seeking dismissal of Appeal on that account are found to be without any substance.
24. Whether Appellant Nos. 2 and 3 can contend that as they are purchasers without notice, in view of Section 19(b) of Specific Relief Act, decree for specific performance cannot be passed against them. In some cases it has already been pointed out that plea of bonafide purchaser without notice is not open to transferee pendente lite. In Smt. Ram Peary v. Gauri and Ors., Division Bench of
Allahabad High Court declares that Section 52 of TP Act is not subject to Section 19(b) of Specific Relief Act and subsequent transferee, even though he obtained the Transfer without notice of original contract, cannot set up against the plaintiff any right as it would defeat the rule of lis-pendens which is founded upon public policy. AIR 1984 NOC 319 (Delhi) Joginder Singh Bedi V. Sardar Singh Narang again holds that Section 52 of TP Act is not subject to Section 19(b) of Specific Relief Act. I find that the following judgments clinch the issue. In Subhash Chand Goyal v. U. P. Financial Corporation,
Kanpur, Division Bench of Allahabad High Court holds:
61. At this juncture comes in the consideration of the argument advanced by Shri Ravi Kiran Jain, who has put in appearance by filing an impleadment application on behalf of the subsequent purchaser i.e. the respondent Nos. 5 and 6, who have purchased the property on 29 10-1999 from the respondent No. 3. It is alleged in the Affidavit appended to the impleadment application that they came to know of the present proceedings and the litigation only just before the moving of the application for impleadment and had no prior knowledge of any such litigation. It has also been alleged in the Affidavit that some vital and extensive improvement have been made to the Cold Storage Plant by increasing its capacity and other such improvement which has caused the client of Shri Ravi Kiran Jain a fair amount of money. The amount has been disclosed broadly without specifying details in the Affidavit therein. As noted above, Shri Ravi Kiran Jain had made a clear statement that he did not propose to file any counter-affidavit to the writ petition. Shri Jain has pointed out the provisions of Sections 51, 52 and 53 of the Transfer of Property Act and has urged that rights of respondent Nos. 5 and 6 to the property in question which have accrued as a bona fide purchaser for valid consideration cannot be defeated on account of the present pending litigation. He has further urged that purchase made by his client is not hit by Section 52 of the Transfer of Property Act and that even otherwise he was never put to notice about the same. We have examined the contention advanced by Shri Jain and we find it appropriate to refer to a decision of our Court in a referred matter . While
considering the implication of Section 52 read with Section 19(b) of the Specific Relief Act, the Court referred to certain passages of English decisions and commentaries and thereafter concluded in the following manner:
In our opinion, therefore, when the doctrine of lis pendens renders a transfer made during the pendency of the suit subservient to the rights of the plaintiff seeking specific performance of a prior contract entered into by the vendor in his favour and when on account of the operation of the doctrine of lis pendens such conveyance is treated as if it had never any existence, the subsequent transferee, even though he had obtained the transfer without notice of the original contract, cannot set up against plaintiff-contractor any right; for it would defeat the rule of lis pendens which is founded upon public policy. And considered in that manner, Section 52 of the T. P. Act is not subject to Section 19(b) of the Specific Relief Act.
8. We may yet arrive to a similar conclusion in a different manner. "A judgment inter partes raises an estoppel only against the parties to the proceeding in which it is given, and their privies, for example, those claiming or deriving title under them." (Halsbury's Laws of England, Third Edition, Volume 15, para 372). The transferee pendente lite would be treated as a representative in interest of the parties to the suit and the judgment which has been pronounced, in the absence of fraud and collusion, would have the effect of finally determining the rights of the parties and the cause of action which would sustain the suit in which the doctrine of lis pendens applied would be merged in the judgment duly pronounced in what may be described as the previously decided suit. The decision being res judicata would bind not only the parties thereto but also the transferees pendente lite from them. In a case to which besides the vendor the subsequent transferee is also impleaded in the array of the defendants, the judgment is final and binding not only on the parties to the original contract but also the transferee pendente lite from vendor. The conveyance in favour of the subsequent purchaser is treated as if it never had any existence. There would then be no lis or action which would survive, enabling the subsequent purchaser to take the defence of bona fide transfer for value without notice of the original contract. Accordingly, we take the view that lis pendens affects the transferee pendente lite and Section 52 of the T. P. Act is not subject to Section 19(b) of the new Specific Relief Act. The conveyance in favour of the subsequent purchaser pending the suit brought by the plaintiff contractor for specific performance of the contract between him and the vendor is taken "as if it had never any existence."
62. Applying the aforesaid principles it is evident that the respondent Nos. 5 and 6 are clearly bound by the aforesaid doctrine and they do not acquire any better right or title in the property than the respondent No. 3. Once the sale finalized and executed in favour of the respondent No. 3 has been found by us to be invalid, the subsequent sale in favour of the respondent No. 5 and others has also to fall through. The respondent Nos. 5 and 6 have not brought on record any document to indicate the terms and conditions on which the sale-deed had been executed in their favour. In these circumstances, this Court is not in a position to grant any protection to them.
Division Bench of Hon'ble Calcutta High Court has in Ceean International Private Limited v. Ashok Surana taken similar view and observed that the ground that the defendant No. 2 was a bona fide transferee for value without notice cannot be available in the facts and circumstances of case before it. Hon'ble Bench noticed that principle would have been applicable to him as provided in Section 19(b) SR Act if the transfer was a pre-suit transfer. The transfer there was effected on 19th June 1995 & suit was filed on 28th of April 1995. Therefore, this transfer was held as hit by the principles of lis pendens provided in Section 52 of the Transfer of Property Act, 1882. It has been further held that the principle of lis pendens is excluded in a suit or proceeding which is collusive and where the right to immovable property is not directly and specifically in question. Case before it was held as not coming under any of the two exceptions. Therefore, the benefit of Section 19(b) of the SR Act was not extended to the defendant No. 2 in that case.
25. In view of this position, I find that Section 52 T.P. Act overrides Section 19(b) of Specific Relief Act if the transfer is during pendency of suit of nature envisaged in Section 52. However, if it is a case of transfer before institution of suit and defendant has entered into contract with vendor subsequent to plaintiff without notice of previous contract between such vendor & plaintiff, Section 19(b) of Specific Relief Act becomes relevant & may be required to be applied. It is also clear that transferee pendente lite only steps in shoes of his vendor defendant and therefore can raise only such defences as are available to his vendor. He can not point out any defences special or personal to him. He has to stand or fall with the pleas open to original defendant with whom plaintiff has a contract which such plaintiff is seeking to specifically enforce. In this connection, I find it appropriate to refer again to Ceean International Private Limited v. Ashok Surana (supra) wherein the Hon'ble Division Bench has considered an application under Order 41, Rule 27, CPC for adducing additional evidence by the defendant No. 2, a post-suit purchaser & the doctrine of lis pendens. He had contended that though these documents, which are mostly orders of Courts or such documents, which need not be proved, were in his possession, but he could not adduce the same before the Trial Court because of the decision in Jugraj Singh v. Labh Singh AIR 1995 SC 945, by reason whereof he i.e. the defendant No. 2 was precluded from contesting the absence of readiness and willingness of the plaintiff. But, when the position changed by reason of the decision in Ram Awadh (Dead) by LRs v. Achhaibar Dubey the
defendant No. 2 was advised to file these documents. Hon'ble Division Bench has observed:
10. It will make no difference in such a case where a party was precluded from contesting the suit on these points/issues on account of being disentitled in law then governing the field. The principle, on which such right is denied to a party in appeal when such party did not contest the suit on particular issue/point, is the principle of estoppel or waiver, as the case may be. Inasmuch as, by not contesting the case on those points, it is deemed that such party had waived his known rights. Once a party has waived his rights or has failed to avail of such rights or espouse such rights, he is estopped from raising such rights in appeal, unless he is able to show that for sufficient reasons he was prevented from raising such points or availing of such rights. In the present case, it was the law that precluded him and it is the law that enables him now. Therefore, this was a reason sufficient to prevent him from agitating those points in the suit. The waiver is giving up of a known right. Here it was not a question that the defendant No. 2 had given up its known right. Therefore, the principle of waiver cannot be attracted in this case. The principle of estoppel can also not be attracted. Therefore, the defendant No. 2 despite having not contested the suit on these points, in view of the changed law, it is now entitled to contest the case on all points, as has been held in Ram Awadh (supra).
Hon'ble Apex Court had in Jugraj Singh's case (supra), in relation to requirement to establish that plaintiff was, since the date of the contract, continuously ready and willing to perform his part of the contract & if he fails to do so, his claim for specific performance must fail; held:
That plea is specifically available to the vendor/defendant. It is personal to him. The subsequent purchasers have got only the right to defend their purchase on the premise that they have no prior knowledge of the agreement of sale with the plaintiff. They are bona fide purchasers for valuable consideration. Though they are necessary parties to the suit, since any decree obtained by the plaintiff would be binding on the subsequent purchasers, the plea that the plaintiff must always be ready and willing to perform his part of the contract must be available only to the vendor or his legal representatives, but not to the subsequent purchasers.
However in --Ram Awadh v. Achhaibar Dubey, the larger bench of Hon'ble Apex Court observed:
6. The obligation imposed by Section 16 is upon the Court not to grant specific performance to a plaintiff who has not met the requirements of Clauses (a), (b) and (c) thereof. A Court may not, therefore, grant to a plaintiff who has failed to aver and to prove that he has performed or has always been ready and willing to perform his part of the agreement the specific performance whereof he seeks. There is, therefore, no question of the plea being available to one defendant and not to another. It is open to any defendant to contend and establish that the mandatory requirement of Section 16(c) has not been complied with and it is for the Court to determine whether it has or has not been complied with and, depending upon its conclusion, decree or decline to decree the suit. We are of the view that the decision in Jugraj Singh's case 1995 AIR SCW 01 : AIR 1995 SC 945 is erroneous.
In view of this right available to them, Appellant Nos. 2 & 3 who are already defendants before Trail Court & coappellants before me, can also prosecute this appeal & demonstrate that Respondent/Plaintiff is not entitled to grant of decree of specific performance from their deceased vendor. Hence by mere death of Appellant No. 1, the present Appeal does not abate and Appellant Nos. 2 & 3 are competent to prosecute it. Question No. C is accordingly answered in negative.
26. Whether purchase by Appellant Nos. 2 and 3 is liable to be ignored as it is in breach of undertaking given by original Defendant No. 1 to the Trial Court as contended by the Advocate C. P. Sen. is the next issue. There is dispute between parties because Appellant Nos. 1 and 2 contend that there is no such undertaking and there is no such breach. In order to cut short this controversy and find it appropriate to first point out what constitutes an undertaking to the Court.
Hon'ble Apex Court has in Rita Markandeya v. Surjit Singh Arora clarified when a party furnishing undertaking to
Court or a party not furnishing such undertaking can be held guilty of Civil Contempt.
Following observations in paragraph 12 are important:
12. Law is well settled that if any party gives an undertaking to the Court to vacate the premises from which he is liable to be evicted under the orders of the Court and there is a clear and deliberate breach thereof it amounts to civil contempt but since, in the present case, the respondent did not file any undertaking as envisaged in the order of this Court the question of his being punished for breach thereof does not arise. However,in our considered view even in a case where no such undertaking is given, a party to a litigation may be held liable for such contempt if the Court is induced to sanction a particular course of action or inaction on the basis of the representation of such a party and the Court ultimately finds that the party never intended to act on such representation or such representation was false. In other words, if on the representation of the respondent herein the Court was persuaded to pass the order dated October 5, 1995 extending the time for vacation of the suit premises, he may be held guilty of contempt of Court, notwithstanding non-furnishing of the undertaking, if it is found that the representation was false and the respondent never intended to act upon it. However, the respondent herein cannot be held liable for contempt on this score also for the order in question clearly indicates that it was passed on the basis of the agreement between the parties and not on the representation of the respondent made before the Court. It was the petitioner who agreed to the unconditional extension of time by four weeks for the respondent to vacate and subsequent extension of time on his giving an undertaking and this Court only embodied the terms of the agreement so arrived at, in the order. We are, therefore, of the opinion that the respondent cannot in any way be held liable for contempt for alleged breach of the above order.
Advocate C. P. Sen has relied upon Division Bench of the Bombay High Court in Bajranglal Gangadhar Khemka and Anr. v. Kapurchand Ltd. . In that case, a suit for specific performance by
execution of a lease was compromised and consent terms were filed in Court and an order passed thereon. One of the terms in the compromise recorded an undertaking by the defendants to have a third party joined as a confirming party to the lease which the defendant had agreed to execute in favour of the plaintiff.
Division Bench ultimately concluded : "...we can only construe the undertaking given by the defendants as an undertaking given to the Court and not given to the other side.... The very fact that the Court passed a decree after an undertaking was embodied in the consent terms clearly shows that the Court did sanction a particular course; and that course was the putting of its imprimatur upon the consent terms. The Court was led to pass an order upon the defendants to execute a lease in view of the fact that an undertaking was given by the defendants to get the Paradise Cinema Limited to join the lease." It is therefore apparent that there was a written undertaking and Court acted in pursuance thereof. Perusal of Board of Trustees of
the Port of Mormugao v. Chowgule and Company Pvt. Ltd., Mormugao Harbour, Gao, also shows that there respondent (original plaintiff) had given undertaking to compensate petitioner before High Court in earlier proceedings in which said petitioner was defendant, in case his that suit was dismissed. Bond executed by plaintiff was embodying clear undertaking given to Court to pay certain sum of money to defendant in case suit was finally decided against plaintiffs/respondent before High Court. Upon application by defendants for enforcement of undertaking, High Court held that Civil Court had inherent power to enforce bond and undertaking. Thus there existed a written undertaking in that case.
Perusal of records of Trial Court of Special Civil Suit 660/1989 reveal that present Respondent/original Plaintiff filed on 13/12/1989 application at Exhibit 9 under Order 39 Rule 1 and 2 of CPC to restrain original Defendant No. 1 from selling the suit house or from creating any charge till decision of suit. In her reply filed on 16/1/1990 at Exhibit 12, original Defendant while denying all allegations, in paragraph 2 stated "It is the plaintiff, who for want of necessary funds, did not purchase the house. Now this Defendant has no intention to sell the house". In paragraph 3 of her reply she stated "As submitted herein above this Defendant does not want to sell the house to any person. Hence the apprehension of plaintiff is without any basis. This application is malafide and has been filed with intention to cause mental torture to the defendant in her old age ". Thereafter Counsel for Plaintiff has on reverse of his application Exhibit 9 endorsed "in view of the statement made in reply by the defendant Shamabai that she does not want to sell property to anybody supported by an affidavit this application is not pressed". After putting his signature, said council has also put date "2/3/1990". There is no order of Court either accepting the statement of original Defendant-1 or filing or disposing of Plaintiff's application at Exhibit 9. The order sheet for date 2/3/1990 reads:--"Parties by Council. Say given by plaintiff on Exhibit 49. Hence case for WS". Below it is signature of learned Presiding officer/Judge of Trial Court. Reference to application of plaintiff as Exhibit 49 is obviously mistaken because till then last Exhibit on record was Exhibit 12. Once it is apparent that Court below has not accepted the statement made by Defendant No. 1, it cannot be said that Defendant No. 1 gave any undertaking to Court. It appears that on 17/1/1992, Plaintiff filed application under Order 39 Rule 2A for taking action against Defendant No. 1 on the ground that in spite of her statement, she sold the suit house to other person. This application at Exhibit 45 was filed in view of said disclosure made by her in her evidence on oath. By filing reply vide Exhibit 46, Defendant No. 1 contended that there was no order of injunction against her by Court and hence application was misconceived. On 21/1/1992, Plaintiff filed at Exhibit 47 application under Order 1 Rule 10(2) and Order 6 Rule 17 CPC for addition of parties and for consequential amendment. This application was allowed by learned Trial Court on 31/1/1992 and that is how present Appellant Nos. 1 and 2 were added as parties in Special Civil Suit 660/1989. It appears that thereafter added parties filed their written statement, their evidence was recorded, final arguments were heard and judgment impugned in this Appeal came to be delivered. No orders were passed on application at Exhibit 45 moved by present Respondent/Plaintiff under Order 39 Rule 2A for taking action against Defendant No. 1.
These facts on record demonstrate that there is no express order with application of mind by Trial Court accepting the statement or undertaking of original Defendant No. 1. Even if it is presumed that proceedings recorded in order sheet dated 2/3/1990 constitute acceptance of such statement or undertaking to the Trial Court and therefore, Court proceeded further in Civil Suit by fixing it for written statement, ignoring sale in favour of Appellant No. 2 and Appellant No. 3 or treating it as void will not mean that Suit stands decreed. Trial Court has itself accepted said sale by directing Appellant Nos. 2 and 3 to join with original Defendant No. 1 or deceased Appellant No. 1 in executing sale deed in favour of present Respondent. Balance amount of sale consideration of Rs. 296000/--deposited by Respondent is made payable by it to present Appellant Nos. 2 and 3. A breach of order of injunction or of undertaking can be punished adequately to maintain the prestige of administration of justice and honour of Court. In a given case plaintiff securing temporary injunction or even punishment order against erring defendant, may ultimately fail in his suit. Therefore even if breach of temporary injunction or of undertaking by original Defendant No. 1 in present matter is accepted, sale deed in favour of Appellant Nos. 2 and 3 can be ignored only if Respondent/original Plaintiff proves his entitlement to grant of specific performance on merits. He cannot hope to succeed only because said sale deed is to be ignored. Respondent/Plaintiff has not proved that these Appellant Nos. 2 and 3 were willing parties to any breach of undertaking or there was any collusion between original Defendant No. 1 and them. At the most original Defendant No. 1 could have been punished for such breach or undertaking but she is no more now. Appellant Nos. 2 and 3 cannot be punished for such breach. To succeed against them, Respondent has to establish that he was all through ready and willing to perform his part of contract. As already observed above, Appellant Nos. 2 and 3 have every right to demonstrate that he was not so ready and willing, and finding in his favour delivered by Trial Court is unsustainable. In view of this position, I find that issue of breach of undertaking by Defendant No. 1 or Appellant No. 1 does not have any bearing on merits of controversy before me. Question No. E is accordingly answered in negative.
27. In view of this discussion and findings reached, I find that the Suit of Respondent Plaintiff is liable to be dismissed and present Appeal deserves to be allowed. Accordingly the judgment and decree dated 5th May 1992 delivered by 6th Joint Civil Judge, Senior Division Court, Nagpur allowing the Special Civil Suit 660 of 1989 is hereby quashed & set aside. Special Civil Suit No. 660 of 1989 is accordingly dismissed. Appeal is allowed with costs throughout on Respondent. The respondent is at liberty to withdraw the amount of Rs. 2,96,000/-deposited by him with interest, if any accrued upon it. Decree be drawn accordingly.