2007 Supreme(Bom) 1045

IN THE HIGH COURT OF BOMBAY
B.H. MARLAPALLE,J.
Chandulal Balaprasad Parandekar -Appellants
Versus
Abdul Karim Saheblal Sayyad -Respondents
SECOND APPEAL NO. 176 OF 1988
Decided on : August 01, 2007

Headnote:Specific Relief Act, 1963 - Section 34 - Suit for specific performance of agreement for sale of land - Dismissed by trial Court - Trial Court proceeded to go for alter- native prayer of refund of advanced amount of Rs. 6,000/- with interest - Defendants 5 and 6 in possession of land - Cultivating it for past about 40 years - Counsels asked to take instructions about market value of land - It was said to be around Rs. 5,000/- per acre - Borrow land near Municipal Areas can be put to use of horticulture - Court fixed market value at Rs. 10,000/- per acre - Appeal allowed - Decree of lower Court set aside - Substituted - The trial Court, as noted earlier, recorded a finding that defendant Nos. 4 and 5 were not the bona fide purchasers and so far as the defendant No. 6 is concerned, it held that he had purchased part of the suit land after ascertaining the ownership of defendant No. 1. The trial Court also noted that all the defendant were from the same village with a population of 1582. The trial Court further stated that it was not inclined to hold that the defendant Nos. 4 to 6 paid their money in good faith and without notice of the original contract. The trial Court has not recorded a finding on the issue that the plaintiffs would derive an unfair advantage if the relief of specific performance of contract was granted in their favour. However it proceeded to consider the alternative prayer set out in the plaint for compensation and held that the plaintiffs were entitled to recover Rs. 6,000/- from the defendant Nos. 1 to 3 jointly and/or severally together with interest at the rate of 6% p.a. from the date of the decree till the date of payment. The recent 7x12 extract copies placed before Court in respect of the suit land do indicate that all along during the pendency of the instant proceedings the defendant Nos. 4 to 6 have been in possession thereof and they have been cultivating the same for the last about 40 years.

       Specific Relief Act, 1963 - Section 34 - Suit for specific performance of agreement for sale - Readiness and willingness - To perform part of contract - Lower Court dismissed suit holding that plaintiff not ready and willing to pay amount - First appellate Court affirmed it - Findings incorrect - As agreement for sale dated 20.9.1965 prepared by 23.4.1966 - Defendants not executed it - Notice dated 5.4.1966 issued by plaintiff to defendants to execute it - Supplementary agreement for sale dated 28.4.1966 signed by defendants - Findings recorded by lower Court erroneous - Not tenable. - The lower appellate Court framed issue No. 2 as to whether the plaintiffs had proved that they were always ready and willing to perform their part of the contract? The said issue has been answered in the negative for the reasons set out in para 24 of its judgment by the lower appellate Court. As per the lower appellate Court it was necessary for the plaintiffs to prove that before Chaitram Shudha 1 Shake 1888 which means 23.3.1966, they were ready and willing to get the sale-deed executed in terms of the agreement for sale and that there was no evidence to prove the same. Whether this reasoning could be legally accepted is to be decided. Admitted ly, as per the agreement for sale at Exh. 85, the sale deed was to be executed by 23.3.1966 and obviously if it was not so done on account of any reason attributable to any of the parties, the question of one party calling upon the other unwilling party by a legal notice would arise and there would be any occasion to issue the legal notice by any of the parties before 23.3.1966 and in the instant case the supplementary agreement for sale at Exh. 86 was signed on 28.4.1966. As the agreement was not signed by 23.3.1966 the plaintiffs have issued legal notice dated 5.4.1966 to the defendant Nos. 1 to 3 calling upon them to execute the sale deed which indicated that the notice was issued at the earliest after the dead line for signing the sale deed was over. In response to the said notice the defendant Nos. 1 to 3 held fresh negotiations with the plaintiffs and the supplementary agreement for sale at Exh. 86 was signed on 28.4.1966 and, therefore the findings recorded by the lower appellate Court are manifestly erroneously.

       Specific Relief Act, 1963 - Section 34 - Transfer of Property Act, 1882, Section 52 - Suit for specific performance of agreements for sale - Defendant’s right - Land transferred during pendency of suit - Defendant’s Nos. 1 to 3 sold land in parts to defendants 4, 5 and 6 - They claimed that they are bona fide purchasers for consideration without notice - Lower Courts dismissed suit for performance - But decreed it for amount of Rs. 6,000/- with 6% interest thereon - Transfer of land during pendency of suit bad in view of Section 52 of T.P. Act - Transfer of land is of no consequence - Sale deeds in favour of defendants 4, 5 and 6 executed by defendants 1 to 3 held as illegal. - Section 52 of the Transfer of Property Act, 1882 clearly states that the property cannot be transferred or otherwise dealt with by any party to the suit so as to affect the rights of any other party thereto during the pendency, in any Court of a suit. Both the Courts below have held that the transactions of sale in favour of defendant Nos. 4 to 6 are hit by the doctrine of the pendente lite but the lower appellate Court held that as the agreements at Exhs. 85 and 86 were merely a security for loan transaction the sale of the suit land in favour of defendant Nos. 4 to 6 during the pendency of the suit would not be affected and thus would not come within the ambit of Section 52 of the Transfer of Property Act, 1882. This finding is patently erroneous and more so when the finding of the Courts below regarding the nature of the said agreements has been discarded in this second appeal it is clear that the sale transactions by defendant Nos. 1 to 3 in favour of defendant Nos. 4 to 6 were intended to defeat the claim of the plaintiffs in the suit and the suit property could not have been transferred in favour of defendant Nos.4 to 6 during the pendency of the suit filed by the plaintiffs. The finding recorded by the lower appellate Court that the defendant Nos. 4 to 6 were not aware of the agreement between the plaintiffs on one hand and the defendant Nos. 1 to 3 on the other hand, cannot be accepted having regards to the oral evidence of DW 1 and DW 6. The lower appellate Court was not right in turning down the findings on this issue recorded by the trial Court. Even otherwise during the pendency of the suit the defendant Nos. 1 to 3 were estopped from transferring the suit land in view of the embargo of Section 52 of the Transfer of Property Act, 1882 and therefore the sale deeds in favour of defendant Nos. 4 and 5 and defendant No. 6 executed by defendant Nos. 1 to 3 are required to be held as illegal.