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IN THE HIGH COURT OF JUDICATURE AT PATNA
PARTHA SARTHY, J.
Smt. Sangita Sinha, Wife of Deepak Kumar Sinha - Appellant
Versus
Smt. Bhawana Bhardwaj, Wife of Dr. Ajay Kumar Bhardwaj – Respondents
First Appeal No.83 of 2018
Decided On : 09-05-2024
Transfer of Property Act, 1882 – Section 54 – "Sale" & "Contract for Sale" – effect of non-registration – from the definition of sale and contract for sale as provided under Section 54 of the T.P. Act together with decision of the Hon'ble Supreme Court it transpires that a contract of sale is merely an agreement of sale and the same itself does not create any interest in or charge on the property – a contract for sale or an agreement to sell does not confer any title nor transfers any interest in an immovable property, the same not being a deed of sale – in is not in dispute that an agreement of sale may be unregistered also, however in case any benefit of right granted under Section 53A of the transfer of Property Act is sought, only in that case will agreement for sale be required to be registered in view of Section 17 (1A) of the Registration Act, 1908 – so far as the facts of the instant case is concerned the plaintiff contend that they have made part payment of the total consideration and even after return of the amount by the defendants, some amount of the plaintiff still remains with the defendants – neither the plaintiffs for grant of benefit as provided under Section 53A of the TP Act, they have not contended that they even came in possession over any part of the suit property at any stage and thus, the agreement to sell dated 25.01.2008 being merely an agreement that a sale will take place at a future date does not require that the same be mandatorily registered. (Paras 56 & 57)
Transfer of Property Act, 1882 – Section 54 read with Indian Succession Act, 1925 – Section 63 – effect of Will on agreement for sale – a Will comes into effect only after the death of the testator not being in dispute, the existence of a Will or even a registered Will, during the lifetime of the testator would be of no value – as held by the Hon'ble Supreme Court, "a Will is not worth the paper on which it is written, as the testator can revoke if" – thus, in the present case, the existence of a Will executed the original defendant no. 1 would have absolutely no effect on her capacity to enter into an agreement for sale or even to execute a registered sale deed with respect to the suit property which is the subject matter of the Will – instant appeal having no merit, the same is dismissed. (Paras 59)
Cases Referred:
AIR 1951 SC 280; AIR 1967 SC 878; AIR 1963 SC 1279; (2003) 4 SCC 161; AIR 1963 SC 884; (2003) 7 SCC 52; (2003) 8 SCC 745; AIR 2009 SC 2157; (2023) 4 SCC 239; AIR 1999 SC 1341; (2021) 2 SCC 718; (2012) 1 SCC 390; (2015) 14 SCC 341; (2019) 9 SCC 381; (2019) 17 SCC 429; (2019) 19 SCC 415; (2020) 3 SCC 280; (2003) 8 SCC 745; (2003) 7 SCC 52 – Referred to.
(2005) 6 SCC 243; (2023) 4 SCC 239; (2012) 1 SCC 656 – Relied upon.
| Table of Content |
|---|
| 1. facts of the case (Para 1 , 2 , 3) |
| 2. arguments of the original defendant (Para 4 , 5 , 9) |
| 3. the position of the original defendant after the suit (Para 6 , 8 , 10) |
| 4. circumstances surrounding the contract execution (Para 11 , 12 , 22) |
| 5. court's analysis of agreement validity (Para 25 , 30 , 36) |
| 6. court's decision on the validity of the agreement. (Para 26) |
| 7. determination of readiness and willingness (Para 40 , 42 , 44) |
| 8. final judgment and dismissal of the appeal (Para 48 , 50 , 61) |
| 9. clarity on the issues raised and arguments presented by both sides. (Para 51 , 52) |
JUDGMENT :
(Partha Sarthy, J.) :
1. The instant appeal has been preferred against the judgment dated 27.4.2018 and decree dated 10.5.2018 passed in Title Suit no. 176 of 2008 whereby the suit filed by the plaintiff- respondent no.1 was decreed on contest with a direction to the defendants to execute the sale deed in favour of the plaintiff with respect to the suit property described in Schedule-A of the plaint.
2. The case of the plaintiff in brief is that Kusum Kumari (original defendant no.1) was the owner of plot no. A/164 in P.C. Colony, Kankarbagh, Patna measuring an area of 2800 sq.ft. with a house constructed thereon. The same has been fully described in Schedule-A (herein after referred to as ‘the suit property’) of the plaint of Title Suit no.176 of 2008. Having come to know the desire of the original defendant no.1 to sell, the plaintiff approached her with the offer to purchase the suit property. In the discussion, her grandson i.e. the defendant no.1 and his wife, the defendant no.3 also participated and it was agreed that the original defendant no.1 would sell the suit property to the plaintiff for a consideration of Rs.25 lacs. An agreement dated 25.1.2008 was entered into, which was duly signed by Bhawna Bhardwaj (plaintiff) and Kusum Kumari (original defendant no.1) as also the witnesses Deepak Kumar Sinha (defendant no.1) and his wife Sangita Sinha (defendant no.3). As per the agreement, the plaintiff paid Rs.2,51,000/-in cash to the original defendant no.1 and also issued cheques worth Rs.7,50,000/-. The defendant acknowledged receipt of Rs.10 lacs against the sale of property and she agreed to obtain a no objection certificate (NOC) from the Peoples Co-operative Grih Nirman Samiti for transferring the membership of the Society in the name of the plaintiff. She also agreed to transfer the suit property to the plaintiff by executing a registered sale deed in her favour. She agreed to get the suit property vacated from possession of the tenants prior to registration.
3. It is further case of the plaintiff that in terms of agreement dated 25.1.2008, the original defendant no.1 made an application before the Secretary, Peoples Co-operative Grih Nirman Samiti requesting to issue a form so that the membership of the original defendant no.1 (member no.710, plot no. A/164) may be transferred in the name of the plaintiff. The application contains the written consent of her granddaughter-in-law Sangita Sinha (defendant no.3), in whose favour the original defendant no.1 had executed a registered will in respect of the property. It is further case of the plaintiff that on her visiting the house of the original defendant no.1 on 11.2.2008 at about 4 p.m. with her husband to discuss the matter, the tenants of the original defendant no.1 namely Ajay and wife of Amar interfered, started to scuffle and abuse the plaintiff and her husband and forced them to return. The plaintiff states that she was surprised and shocked to see that the original defendant no.1 supported them and thus the plaintiff having understood that the original defendant no.1 was intending to avoid carrying out the terms of the agreement dated 25.1.2008 sent a legal notice dated 23.2.2008 through her lawyer. The plaintiff expressed her desire to pay the balance amount of consideration as per the terms and conditions of the agreement and to get the property registered in her fa
AI
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Specific Relief Act, 1963 – Section 20 – Indian Evidence Act, 1872 – Sections 91 and 92 – Agreement to sell – Decree for specific performance of contract – Agreement does not require to be signed nec....
Agreement to Sell – Vendor is not permitted to set up defect of title as a defence in a suit for specific performance.
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