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IN THE HIGH COURT OF BOMBAY
ABDUL SALAM
VERSUS
SHEIKH MEHBOOB
Decided no: November 18, 2005
Held, that whatever acts were performed by the plaintiff were only in the nature of negotiations and it is not possible to conclude that there was a bona fide agreement of sale of the suit house by defendant No. 1 in favour of the plaintiff. Simply because the plaintiff had purchased the stamp paper on 18.11.1981; served notice dated 3.12.1981 and also published, a public notice in the newspaper on 25.12.1981 are not sufficient to show that there is evidence to show that there was a concluded agreement of sale between the parties. Even the earnest amount was not paid though it was in the nature of negotiations that Rs. 5,000/would be paid within a week. When the stamp paper was purchased on 18.11.1981 and if the plaintiff was willing to pay the earnest amount, he ought to have paid it on the same day itself. But, fact remains that neither the earnest amount was paid nor the agreement of sale was reduced into writing signed by the parties in accordance with the provisions of Sections 10 and 25 of the Contract Act. The trial Court as well as the appellate Court has misread the evidence and recorded the findings, which are inconsistent with the provisions of Sections 10 and 25 of the contract Act. The substantial question of law formulated in this appeal deserves to be answered in the affirmative as it follows that both the Courts below have committed in error by holding that oral agreement without consideration is valid and enforceable in law. 2002 (2) Mh LJ (SC) 1, Rel.
Transfer of Property Act, 1882 - Section 52 - Doctrine of lis pendens - Suit house purchased by defendant No. 3 during pendency of the suit after inquiry from defendant No. 1 and having satisfied that no prior agreement of sale is subsisting between defendant No. 1 and the plaintiff or with any other person - Held, the doctrine of lis pendens is not attracted. - Defendant No. 3, purchased the suit house during the pendency of the suit on 29.4.1982 but the facts and circumstances of this case would show that the said transaction is not hit by Section 52 of the Transfer of Property Act because it has been brought on record in the evidence that defendant No. 3 is a bona fide purchaser of the suit house and before the purchase of the suit house she had made full inquiry about the house from defendant No. 1 and when she was fully satisfied that no prior agreement of sale is subsisting between defendant No. 1 and the plaintiff or with any other person, then only she purchased the suit house in her own name. Therefore, the doctrine of lis pendens is obviously not applicable.
( 2 ) ON hearing the learned counsel for the respective parties, the following substantial question of law is formulated by this Court; (1) Whether both the Courts below have committed an error of law by holding that the oral agreement without consideration is valid and enforceable in law?
( 3 ) BRIEF facts are as under: (A) Defendant No. 1 (deceased) is owner of the house bearing No. 315 situated on plot No. 47, Central Avenue Road, Nagpur. The plaintiff was inducted as tenant in one of the block of the suit house since 1960 on the rent of Rs. 16/- per month and the rest of the house was in possession of pratapsingh Harbaji Bais. It is contended by the plaintiff that on 17-11-1981 defendant No. 1 had offered to sell the suit house to him for consideration of Rs. 25,000/- and this offer was accepted by defendant no. 1. The agreement was oral which had taken place in presence of two witnesses namely; Mohammad Ibrahim Mohd. Ismail and Chandramani marotrao Godbole. As per the agreement, the plaintiff was to bear the expenses of the sale deed such as stamp, typing, registration, etc. The plaintiff had also agreed to pay Rs. 5,000/- to defendant No. 1 within a week from 17-11-1981 and to get the agreement reduced into writing on the requisite stamp paper and that the amount of Rs. 20,000/- was agreed to be paid before the Sub Registrar at the time of execution of the sale deed within three months from 17-11-1981. The plaintiff continued to be tenant in the suit premises and he was ever ready and willing to perform his part of the contract. He had purchased the general stamp paper as the earnest money was to be paid on 18-11-1981. He approached to defendant No. 1 and requested him to execute the agreement of sale in his favour to which he had refused and told that defendant No. 2 had offered him the price of Rs. 30,000/ -. It is contended that defendant no. 1 has thus committed breach of the contract. Therefore, the plaintiff had served notice dated 4-12-1981 and called upon him to perform his part of contract, but in vain. On 25-12-1981 a public notice was also published in daily "nav Bharat" alarming the public to refrain from purchasing the suit house from defendant No. 1. Ultimately, defendant no. 1 did not execute the agreement of sale or sale deed in favour of the plaintiff, and therefore, he was constrained to file the suit for specific performance of the oral contract. (B) Defendant No. 1 died during the pendency of the suit and his legal representatives were brought on record. LRs. of defendant No. 1 resisted the suit and contended that defendant No. 2 has purchased the suit house for Rs. 30,000/- in the name of defendant No. 3 who is wife of defendant no. 2 on 29-4-1982 and they are bona fide purchaser for value without notice, and therefore, the provisions of section 52 of the Transfer of property Act, 1882 would not be attracted. (C)The learned Joint Civil Judge, Junior Division on consideration of the evidence, recorded the finding that the plaintiff has proved that there was agreement to purchase the suit house with defendant No. 1 on 17-11-1981 for consider
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