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1997 Supreme(All) 383
IN THE HIGH COURT OF ALLAHABAD
R. K. Mahajan
KHEDU - Appellant
Versus
INDRAPATI - Respondents
Second Appeal 260 Of 1984
Decided On : 04/04/1997
G.D.Misra, R.P.Yadav, S.L.YADAV, Yashrath
An agreement to sell sirdari property is enforceable if the vendor has become a bhumidhar and is competent to sell the land. The transferee is not a bona fide purchaser if he has knowledge of the prior agreement and the transfer to him is made to frustrate the plaintiff's rights. The Consolidation of Holdings Act does not bar the execution of the sale deed if equivalent land has been allotted to the vendor during the consolidation proceedings.
Headnote:
SPECIFIC PERFORMANCE OF CONTRACT - AGREEMENT TO SALE - SIRDARI PROPERTY - TRANSFERABILITY - BONA FIDE PURCHASER - CONSOLIDATION OF HOLDINGS ACT - APPLICABILITY - EQUIVALENT LAND ALLOTMENT - EFFECT ON DECREE.
Fact of the Case:
Plaintiff sued for specific performance of an agreement to sell sirdari property. The defendants, who were the sons of the vendor from a previous marriage, claimed to be bona fide purchasers for value without notice of the agreement. The trial court and the lower appellate court decreed the suit, holding that the defendants were not bona fide purchasers and that the vendor had become a bhumidhar at the relevant time and was competent to sell the land.
Finding of the Court:
The High Court upheld the findings of the lower courts. It held that the amendment to the plaint to include a plea under Section 16C of the Specific Relief Act was properly allowed, as it was of an explanatory nature and did not introduce a new cause of action. The court also held that the agreement to sell was enforceable, as the vendor had become a bhumidhar and was competent to sell the land. The court further held that the defendants were not bona fide purchasers, as they had knowledge of the prior agreement and the transfer to them was made to frustrate the plaintiff's rights. The court also held that the Consolidation of Holdings Act did not bar the execution of the sale deed, as equivalent land had been allotted to the vendor during the consolidation proceedings.
Issues: 1. Whether the amendment to the plaint to include a plea under Section 16C of the Specific Relief Act was properly allowed? 2. Whether the agreement to sell sirdari property was enforceable? 3. Whether the defendants were bona fide purchasers for value without notice of the agreement? 4. Whether the Consolidation of Holdings Act barred the execution of the sale deed?
Ratio Decidendi: 1. The amendment to the plaint was properly allowed, as it was of an explanatory nature and did not introduce a new cause of action. 2. The agreement to sell was enforceable, as the vendor had become a bhumidhar and was competent to sell the land. 3. The defendants were not bona fide purchasers, as they had knowledge of the prior agreement and the transfer to them was made to frustrate the plaintiff's rights. 4. The Consolidation of Holdings Act did not bar the execution of the sale deed, as equivalent land had been allotted to the vendor during the consolidation proceedings.
Final Decision: The appeal was dismissed with costs.
( 1 ) THIS is a second appeal against the judgment and decree dated 15. 94983 in Civil Appeal No. 158 of 1975 by Sri R. C. Gupta, Special/additional District judge, Jaunpur by virtue of which he confirmed the judgment and decree dated 31. 10. 1975 passed by Sri H. P. Tripathi, the then Munsif Jaunpur decreeing Original Suit no. 382 of 1970. Indra Pati v. Khedu and others. The trial Court decreed the suit ordering that the defendant Nos. 1 to 3 shall execute the sale-deed in favour of the plaintiff and defendant No. 4 after accepting the balance amount within two months failing which the same shall be done on execution side at the costs of them.
( 2 ) IT was alleged by the plaintiff in the plaint that the defendant No. 1 Khedu had agreed to sell the land in dispute vide registered agreement dated 24. 2. 1969 in favour of plaintiff Indrapati and defendant No. 4 for a consideration of Rs. 3,000. Later on, vendor khedu, defendant No. 1, since deceased, executed registered sale-deed on 7. 7. 1970 in favour of defendants No. 2 and 3 (now defendant appellants No. 2 and 3) who are the tarail sons, i. e. , sons of previous wife of khedu for a consideration of Rs. 4,000. The plea of the defendant-appellants is that the agreement was procured by playing fraud. It was a case of usufructuary mortgage. The further plea of the defendants is that the defendant No. 1 Khedu had borrowed Rs. 1,000 from plaintiff and had gone to the registrars Office to execute the usufructuary mortgage deed.
( 3 ) THE trial Court, after considering the entire material on record, negatived all the pleas of the defendants and decreed the suit. Feeling aggrieved, an appeal was filed by the defendants before the lower appellate Court which too was dismissed, though by a lengthy judgment upholding the finding arrived by the trial Court. It was also held by the lower appellate Court that the land in dispute was never purchased by the defendant-appellants in good faith for valuable consideration. Obviously, the irresistible inference was that in view of the close relations between defendant no. 1 and defendants No. 2 and 3, they had knowledge of the previous agreement and it was a case of re-purchase. It was also held that the plaintiff was always ready and willing to perform his part of contract and had never resiled. The view of the courts below was also that it was not a case of usufructuary mortgage and there was no case of re-purchase. This is how the second appeal has been filed in this Court.
( 4 ) THE appeal was admitted on the following substantial questions of law : (1) Whether the amendment in the plaint through which the plea under Section 16c was brought on record should not have been allowed after the limitation was over? If so, its effect on the suit? (2) Whether the agreement to sale in respect of Sirdari property can be enforced? (3) Whether appellants No. 2 and 3 were wrongly denied the benefit of section 41 of the Transfer of Property act? If so, its effect?
( 5 ) I have heard the learned counsel for the parties and have perused the entire material on record. It has been submitted by the learned counsel for the appellants that the amendment was allowed after the bar of limitation of filing the suit. The lower appellate court rightly decided the plea by holding that the matter was covered by the pleadings and it was of explanatory nature. In India, the law of amendment is not to be interpreted with respect to pleading hypertechnically but taking into consideration the social condition of litigants. The plaintiff filed the suit for enforcement of agreement and the entire perusal of the pleadings shows that he was ready and willing to perform his part of contract. Mere repetition of word that he is ready and willing does not mean that the person was automatically ready and willing to perform his part of contract. It has to be Judged from the conduct of the parties. The matter has been concluded by finding of fact by both the courts belo
