2024 Supreme(Pat) 456

IN THE HIGH COURT OF JUDICATURE AT PATNA
PARTHA SARTHY, J.
First Appeal No.83 of 2018
(9.5.2024)
Smt. Sangita Sinha ... Appellant
vs.
Smt. Bhawana Bhardwaj & Ors. ....Respondents

Headnote:

Specific Relief Act, 1963 – Section 4 – Sale agreement – Suit property – From the respective stand of the defendants as stated original defendant no.1 signed on the agreement for sale – Though she was not examined as she died during pendency of the suit and the plaintiffs did not have the chance to cross-examine her nevertheless if her stand is examined this Court finds that the agreement for sale is an agreement between the plaintiff and the original defendant no.1 with respect to Schedule-A suit property – Also, as required, as per the terms of the agreement, the original defendant no.1 made an application to the Society praying for providing a form to her to transfer the membership of the Society in favour of the plaintiff – The society also admitted the said fact – Defendants are trying to introduce a new case of the agreement having been entered into at the time of mental inalertness of the original defendant no.1., no such case was pleaded, by the original defendant no.1 in her written statement nor has any material by way of any doctor's prescription etc. been brought on record by witnesses – Agreement for sale was entered into between the plaintiff and the original defendant no.1 and the original defendant no.1 had signed the same being conscious of the fact that it was an agreement for sale – Agreement for sale entered into between the plaintiff and the original defendant no.1 was legal, valid and enforceable – No merit in the appeal and the same is dismissed. (Paras 36 to 40, 42 & 61)

Specific Relief Act, 1963 – Section 16(c) – Willingness to pay consideration – Averments in the plaint, the deposition of the witnesses examined on behalf of the plaintiff and sale deeds brought on record showing the financial capacity of the plaintiff and her husband who has throughout supported the case of the plaintiff, there remains no doubt that the plaintiff has been able to prove that she was always ready and willing to pay the balance consideration amount payable under the agreement. (Para 47)

Civil Procedure Code, 1908 – Order XIV, Rule 1(1) – Issues arise when a material proposition of fact or law is affirmed by one party and denied by the other – In the instant case, both the sides were fully aware with the case of the other side – Taking into consideration the case of the parties on both the sides, issues and additional issues had been settled – Evidence at length were led by both the parties and both the sides got opportunity to cross-examine the witnesses of the other side – However, it was on the date of the judgment that the issues were recast by the learned Trial Court and the judgment delivered – All the issues framed earlier by the trial Court included in the recast issues – Though the issues and the additional issues were a total of twelve in number, in the issues recast at the time of judgment, a number of them were joined together – Even these two issues which may not be specifically stated to have been included in the issues recast – Defendant no.3-appellant has not been able to show as to how recasting of the issues on the date of judgment caused prejudice to her. (Paras 50 and 51)

Specific Relief Act, 1963 – Section 4 – Defendant no.3 contention that the total consideration amount having been returned by the original defendant no.1 and the same having been received by the plaintiff, the plaintiff has no cause of action to file the instant suit – In no manner can it be said that the total amount paid by the plaintiff which as per the plaintiff's case was paid pursuant to the agreement for sale – Balance amount of at least Rs.40,000/- paid by the plaintiff in cash remaining with the defendants and not having been returned back, the deposit of the drafts subsequent to filing of the suit is not of much value. (Para 52)

Transfer of Property, 1882 – Section 53A & 54 – Contract of sale – Part performance – 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 – Agreement of sale may be unregistered also however in case any benefit of right granted under Section 53A only in that case will the agreement for sale be required to be registered – 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 prayed for grant of benefit as provided under Section 53A, they have not contended that they ever came in possession over any part of the suit property at any stage – The Agreement to sell 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)

Indian Succession Act, 1925 – Section 2(h) – Will – 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 – Existence of a Will executed by the original defendant 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. (Para 59)