2013 Supreme(Raj) 491

RAJASTHAN HIGH COURT AT JAIPUR BENCH
Mohammad Rafiq, J.
Subedar Kanwar Singh - Petitioner
Versus
Harnam Singh - Respondent
Civil First Appeal No. 76 of 1990
Decided On : 24-07-2013

An unregistered agreement to sale is admissible in evidence in a suit for specific performance under Section 49 of the Registration Act, 1908, where possession of the land has been transferred to the purchaser.

Headnote:

SPECIFIC PERFORMANCE - AGREEMENT TO SALE - ADMISSION OF EXECUTION - BURDEN OF PROOF - REGISTRATION - UNREGISTERED AGREEMENT - ADMISSIBILITY - SECTION 49 OF THE REGISTRATION ACT, 1908 - SECTION 17(1) OF THE REGISTRATION ACT, 1908 - SECTION 19(B) OF THE SPECIFIC RELIEF ACT, 1963 - EXPLANATION II OF SECTION 3 OF THE TRANSFER OF PROPERTY ACT, 1882 - GOOD FAITH - BURDEN OF PROOF - POSSESSION - NOTICE - CANCELLATION OF AGREEMENT - BURDEN OF PROOF - SECTION 58 OF THE EVIDENCE ACT, 1872 - ADMISSIONS IN PLEADINGS - JUDICIAL ADMISSIONS - SECTION 65 OF THE INDIAN EVIDENCE ACT, 1872 - SECONDARY EVIDENCE - LOST DOCUMENT - PHOTOCOPY - NOTICE PUBLISHED IN NEWSPAPER - SUFFICIENCY OF EVIDENCE - SPECIFIC PERFORMANCE SUIT - DECREE - EXECUTION OF SALE DEED - PAYMENT OF REMAINING CONSIDERATION - FAILURE TO EXECUTE SALE DEED - DEPOSIT OF MONEY THROUGH EXECUTING COURT.

Fact of the Case:

Plaintiff filed a suit for specific performance of the contract and perpetual injunction against the defendants. Plaintiff alleged that defendant No.1 was the khatedar of the land and entered into an agreement with him on 01/07/1986 for the sale of the land for a consideration of Rs. 72,000/-. Defendant No.1 accepted Rs. 16,500/- as advance money and delivered possession of the land to the plaintiff as part performance of the contract. Agreement to sale was reduced into writing on a stamp paper in the presence of witnesses and got attested by the Notary Public. Defendant No.1 also gave a receipt on the same document and signed both the documents. As per agreement to sale, defendant No.1 was required to get the registered sale-deed executed upto i July, 1987. Plaintiff approached defendant No.1 many a time asking to execute the registered sale-deed but he refused to perform his part, whereas the plaintiff was always ready and willing to perform his part of performance and to pay the remaining amount of sale consideration. The money was tendered to him within the contract period. Though defendant No.1 continued to give assurance to the plaintiff to execute the sale-deed in favour of the plaintiff but he did not actually ever execute the registered sale-deed. Plaintiff on 08/08/1987 gave a registered notice to defendant No.1 to execute the sale-deed and to accept the remaining amount. Defendant No.1 gave reply to the notice on 17/01/1987, wherein he asserted that (i) plaintiffs brother Shakti Singh has disputed the right of way over land bearing Khasra No.34 to be sold to Shakti Singh on 30/9/1985, (ii) agreement was lost & (iii) he got an agreement to sale executed on 10/07/1986 for sale consideration of Rs. 72,000/-. He denied having handed over possession of the disputed land to the plaintiff. It was to further pleaded that plaintiff went to consult his lawyer at Alwar regarding the notice and its reply. He lost his bag in the train while returning from Alwar to Khairtal, which contained many documents and the original agreement to sale. He immediately reported the matter to the Station Master of Railway Station and at his instance got a public notice published in a newspaper dated 10/01/1988 but the agreement could not be traced out. However, photostat copy thereof, which he had got prepared earlier, was filed with the plaint, which is Exh.5. Specific prayer was made to direct defendant No.1 to execute the sale-deed in his favour after obtaining remaining amount of sale consideration and further for injunction that defendants be restrained by perpetual injunction from interfering into the possession of the plaintiff over the disputed land or otherwise directing them not to alienate the same to any one.

Finding of the Court:

1. The court found that the plaintiff had proved the execution of the agreement to sale by defendant No.1 and the acceptance of Rs. 16,500/- towards sale consideration as part performance of the contract. 2. The court also found that the plaintiff was ready and willing to perform his part of the contract and had tendered the remaining sale consideration within the time limit of the agreement. 3. The court further found that the defendant No.1 had failed to prove the cancellation of the agreement to sale and the refund of the advance money to the plaintiff. 4. The court also found that the defendants No.2 and 3 were not bonafide purchasers for value in good faith without notice of the original contract.

Issues: 1. Whether the document agreement to sale was lost by plaintiff on 7/1/1988? 2. Whether plaintiff was and is ready and willing to perform his part as per condition of agreement to sale? 3. Whether the disputed land is in possession of the plaintiff since 1/7/1986? 4. Whether defendant by offering the remaining sale consideration asked the plaintiff on several occasions to get the sale-deed registered and whether plaintiff expressed his helplessness to do so and returned the advance received by him to the plaintiff on 9/4/1987 and the plaintiff by cancelling the deal, burnt the agreement to sale? 5. Relief?

Ratio Decidendi: 1. An unregistered agreement to sale is admissible in evidence in a suit for specific performance under Section 49 of the Registration Act, 1908, where possession of the land has been transferred to the purchaser. 2. The burden of proving good faith is on the subsequent purchaser, who takes the plea that he is an innocent purchaser. 3. In the facts of the case, when defendants No.2 and 3 have not adduced any evidence to prove their good faith and rather set up a plea similar to the one taken by vendor defendant No.1, which has been found to be not proved by this Court, purchase of the disputed property by defendants No.2 and 3, cannot be said to be bonafide. It cannot be accepted that they purchased the same property in good faith.

Final Decision: The appeal was allowed and the judgment & decree passed by the learned Additional District and Sessions Judge, Kishangarh Bas, District Alwar dated 24/03/1990 was set-aside. Original Suit No.5/1988 filed by the plaintiff-appellant for specific performance was decreed in terms of the prayer. Plaintiff-appellant on payment of remaining amount of consideration viz : 72000-16500 = 55,500 would be entitled to get the sale-deed executed from the defendant-respondents. In case, defendants fail to execute the sale-deed within the said period, plaintiff would be entitled to get the sale-deed executed after deposit of such money through the executing court. Fresh decree be prepared accordingly.