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1997 Supreme(All) 418
HIGH COURT OF ALLAHABAD
R.K. Mahajan
KHEDU
Versus
INDRAPATI
Decided On : 09 April 1997
Second Appeal No. 260 of 1984
O.D.MISRA, R.P.Yadav, S.L.YADAV, Yashrath,
An agreement to sell sirdari property is enforceable if the vendor has become a Bhumidhar at the relevant time and is competent to sell the land.
Headnote:
SPECIFIC PERFORMANCE OF CONTRACT - AGREEMENT TO SELL - SIRDARI PROPERTY - TRANSFERABILITY - SECTION 134, U. P. ZAMINDARI ABOLITION AND LAND REFORMS ACT - SECTION 41, TRANSFER OF PROPERTY ACT - SECTION 16-C, U. P. ZAMINDARI ABOLITION AND LAND REFORMS ACT - SUMMARY OF FACTS, FINDINGS, ISSUES, RATIO DECIDENDI AND FINAL DECISION.
Fact of the Case:
Plaintiff filed a suit for specific performance of an agreement to sell sirdari property. The defendants, who were the sons of the vendor, claimed that the agreement was procured by fraud and that it was a case of usufructuary mortgage. The trial court and the lower appellate court decreed the suit in favor of the plaintiff.
Finding of the Court:
The High Court held that the amendment to the plaint to include a plea under Section 16-C of the U. P. Zamindari Abolition and Land Reforms 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 the sirdari property was enforceable, as the vendor had become a Bhumidhar at the relevant time 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 with the plaintiff and the transfer was made to frustrate the plaintiff's rights. The Court also held that the fact that the land had come under the operation of the Consolidation of Holdings Act did not prevent the execution of the sale deed, as the plaintiff could be given equivalent land in lieu of the land in dispute.
Issues: 1. Whether the amendment to the plaint to include a plea under Section 16-C of the U. P. Zamindari Abolition and Land Reforms Act was properly allowed? 2. Whether the agreement to sell the sirdari property was enforceable? 3. Whether the defendants were bona fide purchasers? 4. Whether the fact that the land had come under the operation of the Consolidation of Holdings Act prevented 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 the sirdari property was enforceable, as the vendor had become a Bhumidhar at the relevant time and was competent to sell the land. 3. The defendants were not bona fide purchasers, as they had knowledge of the prior agreement with the plaintiff and the transfer was made to frustrate the plaintiff's rights. 4. The fact that the land had come under the operation of the Consolidation of Holdings Act did not prevent the execution of the sale deed, as the plaintiff could be given equivalent land in lieu of the land in dispute.
Final Decision: The appeal was dismissed with costs.
This is a second appeal against the judgment and decree dated 15-9-1983 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 decree ing 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 ac cepting 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 2 and 3 (now defendant-appellants 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. 1000 from plaintiff and had gone to the Registrars office to execute the usufructury 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 appel late 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 defen dant-appellants in good-faith for valuable consideration, obviously, the irresistable in ference was that in view of the close rela tions between defendant No. 1 and defen dants 2 and 3, they had knowledge of the previous agreement and it was a case of repurchase. It was also held that the plaintiff was always read, 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 repurchase. 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 16-C 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 2 and 3 were wrong ly 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.
6. 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 appel late court rightly decided the plea by
hold ing that the matter was covered by the plead ings and it was of explanatory nature. In India the law of amendment is not to be interpreted with respect to pleading hyper-technically but taking into consideration the social condition of litigants. The plain tiff filed the suit for enforcement of agree ment and the entire perusal of the pleadings shows that he was ready and willing to per form his part of contract. Mere repetition of word that he is ready and willing dose not mean that the person was automatically ready and willing to perform his part of Contract. It has to be judged from the con duct of the parties. The matter has been concluded by finding of fact by both the courts below and unless it is per
