Two second appeals by a vendor against concurrent decrees dismissing her suit for cancellation of a registered agreement to sell and decreeing the vendee's suit for specific performance of it. The High Court found no substantial question of law, held the vendor had not approached the court with clean hands, and dismissed both appeals.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
Court No. - 53
Case :- SECOND APPEAL No. - 4 of 2020 Appellant :- Krishna Devi Respondent :- Shiksha Devi Counsel for Appellant :- Nipun Singh Counsel for Respondent :- Sumit Daga
with
Case :- SECOND APPEAL No. - 7 of 2020 Appellant :- Krishna Devi Respondent :- Shiksha Devi Counsel for Appellant :- Nipun Singh Counsel for Respondent :- Sumit Daga
Hon'ble Vivek Agarwal,J.
Heard Sri Nipun Singh, learned counsel for the appellant and Sri Sumit Singh, learned counsel for the respondent in both the appeals.
These two appeals originate from common judgment and order dated 05.09.2019 passed by the Additional District Judge, Court No.5, Muzaffarnagar in Civil Appeal No.02 of 2018, Smt. Krishna Devi Vs. Smt. Shiksha Devi whereby learned Additional District Judge has affirmed the judgment and order dated 15.12.2017 passed by the Additional Civil Judge (Junior Division), Court No.1, Muzaffarnagar in original Suit No.838 of 2006 dismissing the claim of the plaintiff-Smt. Krishna Devi in regard to cancellation of the agreement dated 23.12.2005. Vide order of even date Original Suit No.838 of 2006 filed by Smt. Shiksha Devi against Krishna Devi for specific performance of the agreement was decreed by the Trial Court and such decree has been affirmed by the first Appellate Court.
Brief facts which culminated in the original litigation are necessary to be reproduced for proper appreciation of the fact situation of the case. It is an admitted position that Krishna Devi
appellant in both these second appeals had entered into an agreement for sale with one Laxman Singh on 06.01.2005. As per the recitals of the agreement between Krishna Devi and Laxman Singh, Krishna Devi had agreed to sale 0.5463 hectares of land contained in survey no.483 (ma) situated at villageHussainpur, Pargana, Gordhanpur, Tehsil and DistrictMuzaffarnagar.
It is case of Krishna Devi that she had obtained a loan of Rs.50,000/- from said Laxman Singh as a result of which said agreement dated 06.01.2005 was executed and later on such agreement on payment of loan amount was terminated vide cancellation deed dated 23.12.2005. Krishna Devi contested that this amount of Rs.50,000/- which forms part of the agreement between her and Laxman Singh was in fact obtained by her on account of illness of her husband who had met with an accident. Krishna Devi submitted that she had never executed an agreement to sale with Shiksha Devi on 23.12.2005 to allegedly sale total holding obtaining in her favour (i.e. 0.9692 hectares) for a sum of Rs.2,50,000/-. It is submitted that why should she agree to sale 0.9692 hectares of her land for a petty consideration of 2.50 lakhs when this area roughly translates into 14 Kaccha Bigha. Thus, it was alleged that the agreement to sale allegedly executed by Krishna Devi in favour of Shiksha Devi is a forged document and is not binding on Krishna Devi. Accordingly, she claimed relief of cancellation of the said agreement to sale having been obtained by fraud.
Learned counsel for the appellant-Krishna Devi further submits that in the suit filed by Krishna Devi a counter claim was filed by Shiksha Devi claiming injunction against Krishna
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Devi from creating any third party rights but no relief of specific performance of the agreement dated 23.12.2005 was claimed and, therefore, after having filed the counter claim, defendant-Shiksha Devi was precluded from filing another suit no.838 of 2006 seeking specific performance of the agreement dated 23.12.2005.
Learned counsel for the appellant has thus, raised following pleas namely (a) the agreement dated 23.12.2005 allegedly executed by Krishna Devi in favour of Shiksha Devi is a forged document; (b) that no sale consideration was ever transmitted in favour of Krishna Devi; (c), the suit for specific performance was not maintainable and (d), Shiksha Devi failed to prove her own case of readiness and willingness throughout the subsistence of the said agreement; (e), no notice was ever served on the plaintiff-Krishna Devi before approaching the Office of the Sub-Registrar on 22.08.2006 and finally the courts below were required to balance the equities and looking to the fact that Krishna Devi was not left with any piece of land for her subsistence, at best direction should have been issued for refund of the earnest money of Rs.2,50,000/- instead of decreeing the suit for specific performance.
Thus, it is submitted that appellant is claiming two reliefs respectively in Appeal Nos.4 and 7 namely the agreement dated 23.12.2005 be declared as nonest as was prayed by Krishna Devi in her suit and secondly, the decree of specific performance passed in favour of Shiksha Devi in the suit filed by Shiksha Devi be set aside.
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Learned counsel for the appellant has placed reliance on various decisions of Supreme Court and this High Court to buttress his claim for the aforesaid twin reliefs.
Reliance has been placed on the judgment of Supreme Court in case of Gopal Krishnaji Ketkar Vs. Mohammed Haji Latif and others as reported in AIR 1968 SC 1413 wherein, it has been held that even if the burden of proof does not lie on a party, the Court may draw an adverse inference if he withholds important documents in his possession which can throw light on the facts of an issue. It is not, in our opinion, a sound practice for those desiring to rely upon a certain state of facts to withhold from the Court the best evidence which is in their possession which could throw light upon the issues in controversy and to rely upon the abstract doctrine of onus of proof.
Similarly, reliance has been placed on the judgment of this High Court in case of Bhaiyalal Vs. Ram Din as reported in AIR 1989 Alld.130 wherein, it has been held that as per the provisions contained in Section 10 of the Specific Relief Act and Section 67 of the Evidence Act in a suit for specific performance of an agreement to sale, if execution of document is under challenge then failure of the plaintiff to examine scribe and witness of deed/agreement to sale so to prove the execution of document then plaintiff is not entitled to claim enforcement of that agreement.
Similarly, reliance is also placed on the judgment of Allahabad High Court in case of Surendra Singh Vs. Sanjeev as reported in 2018 (6) AWC 5470 wherein, it has been held that defendant being farmer should not be deprived of his only
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source of livelihood and equitable and discretionary relief of specific perormance of contract should not be granted to the plaintiff especially when the act agreed between the parties can be properly compensated in terms of money.
Reliance has also been placed on the judgments of Supreme Court in case of Vijay Kumar and others Vs. Om Prakash as reported in AIR 2018 SC 5098 wherein, it has been held that plaintiff has to prove his readiness and willingness to perform his part of contract and readiness and willingness has to be shown throughout and established by the plaintiff.
Reliance is also placed on the judgment of this High Court in case of Ram Autar Vs. Baldeo Singh as reported in 2017 (3) ARC 408 wherein agreement to sale, period of execution of sale deed was one year, plaintiff admitted even after one year period, he did not give any written notice for execution of sale deed and under such facts as were obtaining in that case, it was held that there was no material on record to prove that he was not ready and willing to perform his part of contract.
Similary, reliance is also placed on the judgment of Allahabad High Court in case of Bijai Bahadur and others Vs. Shri Shiv Kumar and another as reported in AIR 1985 Alld. 223 wherein, it has been held that mere proof of readiness and willingness is not enough averment to that effect and pleadings must be made.
Reliance has also been placed on the judgment of Supreme Court in case of Manohar Ganapathi Ravankar Vs. H. Gurunanda Raikar as reported in 2019 (5) SCC 236 wherein, it has been held that failure to establish readiness and willingness
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will disentitle the plaintiff to decree for relief of specific performance.
Reliance has also been placed on Supreme Court judgment in case of S.P. Chengalvaraya Naidu (dead) by L.Rs. Vs. Jagannath (dead) by L.Rs. and others as reported in AIR 1994 SC 853 wherein, it has been held that in a proceedings before Court, if fraud is played by a litigant by withholding vital document relevant to litigation, it is fraud on Court and guilty party is liable to be thrown out at any stage.
Reliance has also been placed on the judgment of Allahabad High Court in case of M/s. Krishna Utensils Vs. State Financial Corporation Regional Office, Moradabad and others as reported in 1989 (15) ALR 662 wherein, it has been held that in a petition under Article 226 of Constitution of India omission to mention all relevant facts in petition amounts to suppression of material facts which dis-entitles the petitioner of any discretionary reliefs and petition is liable to be dismissed on this ground also.
Reliance is also placed on the judgment of Supreme Court in case of Lalit Kumar Jain and another Vs. Jaipur Traders Corporation Private Ltd. passed in Civil Appeal No.2957 of 1997 on 24.04.2002 wherein, it has been held that the conduct of the plaintiff who has sought equitable remedy should be kept uppermost in the mind of the Court. Plaintiff seeking equitable remedy cannot approach the Court with unclean hands or be guilty of latches. Irrespective of the conduct of the defendants, we must hold that the plaintiff has, for various reasons as discussed above dis-entitled himself to the relief of cancellation of instruments and for recovery of possession from the
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defendants and that too after the property was substantially developed.
Reliance is also placed on the judgment of Supreme Court in case of Jayakantham and others Vs. Abay Kumar as reported in 2017 (5) SCC 178 wherein in para-11, it has been held that at the time of entering into the agreement, the conduct of the parties and the circumstances under which the contract was entered into gave the plaintiff an unfair advantage over the defendants. These circumstances make it inequitable to enforce specific performance.
Reliance is also placed on the judgment of Supreme Court in case of Sardar Singh Vs. (smt.) Krishna Devi and another as reported in 1994 (4) SCC 18 wherein, in para-14, it has been held that as per the provisions contained in Section 20(1) of the Specific Relief Act, 1963, the jurisdiction to decree specific performance is discretionary. The circumstances specified in Section 20 are only illustrative and not exhaustive. The Court would take into consideration the circumstances in each case, the conduct of the parties and the respective interest under the contract.
Reliance is also placed on the judgment of Supreme Court in case of Kanshi Ram Vs. Om Prakash Jawal and others as reported in AIR 1996 SC 2150 wherein, it has been held that when vendor himself claims alternative relief for damages then in such circumstances ordering specific performance would be inequitable and unjust.
Reliance is also placed on the judgment of Supreme Court in case of A.C. Arulappan Vs. (Smt.) Ahalya Naik as reported in 2001(6) SCC 600 wherein, it has been held that on facts,
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respondent had tried to take unfair advantage of appellantdefendant, had approached Court with unclean hands, and had behaved unfairly throughout. High Court erred in allowing the respondent’s appeal and in decreeing her suit for specific performance.
Reliance is also placed on the judgment of Supreme Court in case of Punjab Urban Planning and Development Authority Vs. Shiv Saraswati Iron and Steel Mills as reported in 1998 ACJ 1006 wherein, it has been held that plaintiff has to prove his own case and cannot take advantage of weakness of the case of the defendant.
Placing reliance on all such judgments, it is submitted that firstly, the suit filed by the appellant-Krishna Devi for cancellation of the agreement should have been decreed and secondly, the suit filed by Shiksha Devi for specific performance should have been dismissed and in the alternative relief if suit for specific performance is to be decreed then the Court below should have exercised equitable jurisdiction asking the vendor Krishna Devi to refund the earnest money rather than depriving her of only source of livelihood.
Last issue which has been raised is in regard to nonservice of notice Krishna Devi before approaching the Office of Sub-Registrar. For this purpose, agreement dated 23.12.2005 wherein, it is clearly mentioned that time limit for getting the sale deed executed was fixed upto 22.08.2006 and once, such time limit was fixed and there is evidence of oral communication by Shiksha Devi to Krishna Devi and there is no effective rebuttal to such plea and there is proof of the fact that Shiksha Devi had approached the Office of Sub-Registrar on
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22.08.2006 and further there is no evidence on the part of the appellant-Krishna Devi that she ever asked Shiksha Devi to pay the remaining consideration and get the agreement executed but on the contrary had set up a defence that said agreement was executed in a fraudulent manner by misrepresenting the correct facts, this Court is of the opinion that after having failed to establish the plea of fraud and misrepresentation, this plea of non-service of notice is not open to the appellant.
Sri Sumit Daga, learned counsel appearing for Shiksha Devi-respondent in this appeal in his turn submits that the agreement to sale dated 23.12.2005 is a registered document. As per the terms of the agreement transaction was to be concluded by 22nd August, 2006. There is evidence to the effect that Shiksha Devi had approached the Office of Sub-registrar after orally intimating the vendor Krishna Devi calling her to execute the sale deed. It is also submitted that agreement to sale being a registered document, was an admitted document being in the form of a public document under Section 74 of the Evidence Act and, therefore, onus was on Krishna Devi who was alleging fraud to prove the factum of fraud.
It is submitted that Shiksha Devi had already paid a sale consideration of Rs.2,25,000/- at the time of execution of the agreement on 23.12.2005 and therefore for a paltry for a sum of Rs.25,000/-, no adverse inference could have been drawn in regard to readiness and willingness of Shiksha Devi.
In fact, her conduct of appearing before the Sub-registrar on the date so stipulated in the agreement to sale namely 22.08.2006 clearly demonstrates factum of readiness and willingness.
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It is submitted that Krishna Devi has admitted in her cross-examination that both Nakli Singh and Kiran Pal witnesses to the agreement which was executed between Laxman Singh and Krishna Devi are related to her. Kiran Pal is her nephew whereas Nakli Singh another attesting witness is uncle of Kiran Pal. She has also admitted that it was Kiran Pal who was knowing Laxman Singh and he had arranged for money through Laxman Singh. It is submitted that after specifically alleging commission of fraud in the hands of Laxman Singh, Kiran Pal, Nakli Singh and the document writer in the plaint filed by Krishna Devi, a copy of which is filed as Annexure-1 in Second Appeal No.07 of 2020 wherein, in para-11 of the plaint it is mentioned as under :-
“11. That the defendant obtained a forged, bogus and sham registered deed on the same day i.e. 23.12.2005 in collusion with Laxman Singh and the witnesses of the deed relating to Laxman Singh, Sri Nakli Singh and Sri Kiran Pal and the registering authority and the documents writer etc.” did not ever anything against Nakli Singh and Kiran Pal in her affidavits under Order18 Rule-4 C.P.C., which has been filed alongwith the Second Appeal No.07 of 2020 as Annexure-8 wherein in para-23, it is alleged that defendant in collusion with Laxman Singh and the document writer kept the plaintiff in dark and obtained a forged and fabricated agreement to sale.
Thus, after realising a fact that she is alleging something against her own close relatives in para-11 of the plaint, she exonerated both the witnesses Kiran Pal and Nakli Singh and changed her version in the affidavit given in lieu of oral evidence.
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It is further submitted that in cross-examination plaintiffKrishna Devi has admitted that she had no enmity with Laxman Singh. She has no enmity with the document writer. It is also an admitted fact that Nakli Sing was an attesting witness to the agreement dated 23.12.2005 allegedly executed between Krishna Devi and Shiksha Devi but Nakli Singh though related to the plaintiff Krishna Devi was never examined in the Court of law. It is also an admitted fact that appellant Krishna Devi has only filed affidavit of Kiran Pal as was furnished under Order 18 Rule-4 C.P.C. along with the memo of second appeal and has not produced copy of cross-examination.
Sri Nipun Singh after appreciation of evidence as was given by Kiran Pal Singh before the trial court and submits before this court that trial court has wrongly drawn conclusion in regard to the evidence as was given by Kiran Pal Singh and has drawn erroneous conclusion to the effect that Kiran Pal Singh has admitted execution of the document and as noted in para-42 of the impugned judgment as under :-
^^42& vly iz’uxr bdjkjukek egk;nk c; fnukafdr 23&12&2005 dkxt la0 13d ds voyksdu ls Li"V gksrk gS fd mDr bdjkjukek esa lk{khx.k ds :i esa udyh flag o /khj flag ds uke vafdr gS o ys[kd ds :i esa enu izHkkdj dk uke vafdr gSA ifjokfn;k Jherh f’k{kknsoh }kjkizfrijh{kk esa lk{; fn;k x;k gS fd ^^lkSnk rglhy esa gqvk Fkk] tks enu izHkkdj ds cLrs ij gqvk FkkA d".kk nsoh ysdj x;h FkhA lkSns ds oDr gh fy[kr&i<r gks x;h FkhA eSus iSlk rglhy esa dksVZ esa fn;k FkkA** vkxs lk{; fn;k gS fd ^^lkSnk <kbZ yk[k :i;s esa gqvk FkkA fy[kr i<r ij nks yk[k ikap gtkj :i;s fn;s FksA** vkxs lk{; fn;k gS fd ^^esjs fy[kr i<r okys fnu gh vksj Hkh fy[kr i<r gqbZ FkhA y{e.k okys bdjkjukesa dh fy[kr i<r gqbZ FkhA y{e.k flag ml tehu dk iwjk cSukek djuk pkgrk FkkA d".kknsoh de cSukek djuk pkgrh FkhA** ih0MCyw0 2 ds :i esa ijhf{kr fdj.kiky }kjk Hkhvius lk{; esa okfn;k }kjk izfrokfn;k ds i{k esa bdjkjukek egk;nk c; fu"ikfnr djusdk lk{; nsrs gq, dFku fd;k x;k gS fd ^^d`".kk o f’k{k esa dksbZ ,xzhesaV gqvk gksxk] mldk eqdnek py jgk gSA** vkxs ;g Hkh lk{; fn;k gS fd ^^,xzheSaUV djhc 7 lky
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igys gqvk FkkA** okfn;k Jherh d".kknsoh }kjk Loa; ;g lk{; fn;k x;k gS fd mlds }kjk ftl dkxt ij Hkh vxWwBk fu’kkuh yxk;k x;k] mlus vius gks’k gokl esa rFkk lksp le>dj yxk;k gSA okfn;k Jherh d".kknsoh }kjk Loa; vius lk{; esa bdjkjukek egk;nk c; fnuakfdr 23&12&2005 ds fu"iknu dks Lohdkj fd;k gSA 1981 ,llh 2085 dh fof/k O;oLFkk esa vo/kkfjr fd;k x;k gS fd ^^Lohd`fr loksZRre lk{; gksrh gSA** okfn;k }kjk lUnfHkZr fof/k O;oLFkk izLrqr okn ds rF;ks ,oa ifjfLFkfr;ksa ij iz;ksT; ugh gksrh gSA vr% okfn;k ds fo}ku vf/koDrk dk mijksDr rdZ cyghu izrhr gksrk gSA**
When asked to show the evidence of Kiran Pal then counsel has drawn attention of this court to the affidavit of Kiran Pal S/o Sardar as was furnished before the trial court under Order 18 Rule 4 CPC where Kiran Pal was examined as PW-3 and such affidavit is available on record as Annexure-8. After going through the affidavit when this court enquired about cross examination, then it is submitted that a copy of cross examination of Kiran Pal is not on record. In absence of cross examination of Kiran Pal, it appears to this Court that it being deliberately kept away from the court by the party concerned. Finding of the trial court as recorded in para-42 can neither be appreciated nor assailed.
At this stage Sri Nipun Singh, counsel for the appellant submits that he has not placed reliance on the evidence of Kiran Pal.
Learned counsel for the respondent-Shiksha Devi submits that Courts below have appreciated the conduct of Krishna Devi. Courts below have dispelled the pleading of Krishna Devi that she is a ‘Pardanashin’ illiterate lady having no idea of litigation when it has discussed the fact that she is a chronic litigant and earlier she had entered into an agreement to sale on 21.01.2003 with one Subhash Rastogi and, then had filed a suit on the similar facts that she had never executed such
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agreement and later on entered into a compromise on 29.07.2003/31.07.2003 in Suit No.102 of 2003.
Placing reliance on such documents as are available on record as document no.151C/18 to 151c/20, 151c/21 to 151c/31 or 151c/32 to 151c/48, 151c/49 to 151c/51 to demonstrate that appellant-Krishna Devi is aware of the Court procedure and she has been regularly contesting cases in Courts of law against different parties and therefore it cannot be said that she is an illiterate and a woman not aware with the court procedures.
It has also come on record and is apparent from the documents that though Krishna Devi alleged that she had taken loan from Laxman Singh for treatment of her husband who had met with an accident, in fact she had entered into the agreement to sale with Laxman Singh on 06.01.2005 after death of her husband. It has also come on record that the said agreement was not a loan agreement but an agreement for sale for a consideration of Rs.1,40,000/- for sale of 0.5463 hectares of land. Therefore, Krishna Devi had not approached the Court with clean hands. She could have examined Nakli Singh an attesting witness to the agreement dated 23.12.2005 especially when Nakli Singh is related to her and admittedly she enjoys a cordial relationship with Nakli Singh but Krishna Devi failed to discharge her burden that such agreement was executed by using fraud or coercion. Therefore after having failed to substantiate her own suit that the agreement was a sham document and was not enforceable, she was precluded from raising a plea of readiness and willingness especially when defendant has been able to demonstrate through documentary evidence as to her presence before the Sub-Registrar on
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22.08.2006 for execution of the sale deed in pursuance to the agreement to sale.
It is also pointed that in fact on 21.08.2006, Krishna Devi had filed a suit for cancellation of the agreement and therefore after gathering knowledge of such suit on or after 22.08.2006, there was no occasion for Shiksha Devi to have issued any notice for further compliance of the agreement seeking specific performance but too file suit for specific performance.
In this backdrop, learned counsel for the respondent has placed reliance on the judgment of this High Court in case of Rajendra Singh Vs. Chandra Pal as reported in 2016 (7) ADJ 564 wherein, a co-ordinate Bench of this Court in para-16 has held that when it is found that the one party was acting in dishonest and mala fide way and was giving false defences and telling lie before the Court, then such party should not be awarded and given benefit of his greed nor should be permitted to benefit them misuse of process of Court.
Reliance is also placed on the judgment of Supreme Court in case of Ramathal Vs. Maruthathal and others as reported in 2017 (3) ARC 657 wherein, it has been held that escalation of price cannot be a ground for denying the relief of specific performance. Specific performance is an equitable relief and granting the relief is the discretion of the Court.
Reliance is also placed on the judgment of Supreme Court in case of Randhir Kaur Vs. Prithvi Pal Singh and others as reported in 2019 (3) ARC 14 wherein in para-17, it has been held that High Court could not interfere with the findings of the fact recorded after appreciation of evidence merely because
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the High Court thought that another view would be a better view.
Reliance is also placed on the judgment of Supreme Court in case of Jamila Begum (D) through L.Rs. Vs. Shami Mohd (D) Through L.Rs. and another as reported in 2019 Alld. CJ 435 (SC) wherein, in para-14, it has been held that once a document is registered, registration of such document gives fair presumption as to valid execution of the deed. A registered document carries with it a presumption that it was validly executed. This proposition of law has been passed on the basis of the law laid down in case of Prem Singh and others Vs. Birbal and others as reported in 2006 (5) SCC 353 wherein, it has been held as under:-
“There is a presumption that a registered document is validly executed. A registered document, therefore, prima facie would be valid in law. The onus of proof, thus, would be on a person who leads evidence to rebut the presumption. In the instant case, Respondent 1 has not been able to rebut the said presumption.”
Placing reliance on such judgment, it is submitted that judgments relied by the appellant’s counsel are not relevant to the controversy and or distinguishable on its own facts.
Another issue which has been raised by the appellant Krishna Devi is in regard to the readiness and willingness throughout. However, reliance has been placed on the judgment of Kerala High Court in case of Bhaskaran Vs. George Joseph as reported in AIR 1988 Kerala wherein in para-5 meaning of readiness and willingness has been explained to mean that
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person claiming performance has kept contract subsisting with preparedness to fulfil his obligation and accept performance when time for performance arrives. This judgment negates the submission of the appellant that there was no readiness and willingness on the part of the vendee to get the specific performance of the agreement carried out.
After hearing learned counsel for the parties and going through the record and the case law submitted by the rival parties, a few facts are unambiguous namely an registered agreement executed between Krishna Devi and Shiksha Devi on 23.12.2005 in the form of a registered agreement to sale is available on record. This document was registered on the same day at about the same timing when admittedly Krishna Devi had approached the Office of Sub-registrar to execute a deed of cancellation in relation to the agreement dated 06.01.2005 allegedly executed by her in favour of Laxman Singh.
It is also an admitted fact that though Krishna Devi has been canvassing that she had obtained a loan from Laxman Singh and had executed an agreement in lieu of such loan with a stipulation to repay the loan and get such agreement cancelled, but the fact remains that the stipulations contained in the agreement dated 06.01.2005 clearly demonstrates that it was not a loan agreement but an agreement to sale.
It is also an admitted fact that attesting witness to the deed of cancellation with Laxman Singh were Kiran Pal and Nakli Singh both of whom are related to Krishna Devi. It is also true that Nakli Singh is an attesting witness to the agreement to sale allegedly executed between Krishna Devi and Shiksha Devi, but Nakli Singh was not examined in the Court of law so to
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dispel the genuineness of the agreement to sale admittedly challenged by Krishna Devi. The onus of proof was on Krishna Devi that such agreement was a sham document and that could have been proved by examining attesting witness Nakli Singh closely related through plaintiff-Krishna Devi.
Therefore, on facts, law laid down in case of Gopal Krishnaji Ketkar (supra) that a party in possession of best evidence which would throw light on the issue in controversy if withholds such evidence then Court ought to draw an adverse inference against him will in fact go against the appellant Krishna Devi and when this judgment is read in conjunction with the law laid down in case of Jamila Begum (supra) therebeing a registered document in the form of agreement to sale, presumption would be that it was a validly executed document.
As far as plea of the appellant that Shiksha Devi failed to examine the scribe and witness of deed/agreement to sale and therefore could not prove its execution is concerned, as has been laid down in case of Bhaiyalal Vs. Ram Din (supra) that also gets diluted in terms of the fact of the present case inasmuch as in that case, the agreement to sale was not a registered document whereas in the present case the document dated 23.12.2005 is a registered document and therefore in terms of the law laid down in case of Jamila Begum (supra) agreement to sale being a registered document ratio of law laid down in case of Bhaiyalal (supra) turns on its own facts and is not applicable to the facts of the present case.
As far as law laid down in case of Surendra Singh (supra) is concerned that nobody should be deprived of the source of the livelihood and the equitable and discretionary relief of
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specific performance of contract should not be granted would have been applicable if appellant-Krishna Devi would have approached the Court with clean hands.
In fact, learned counsel for the appellant has himself brought on record judgments to the effect that if a party fails to approach the Court with clean hands as has been noted in case of A.C. Arulappan (supra) then such party is liable to be thrown out of the Court and should not be permitted to take unfair advantage. Ratio of A.C. Arulappan is applicable to the facts of the case in all force inasmuch as Krishna Devi claimed herself to be ‘Pardanashi’ lady unaware of the Court procedure and claiming herself to be naive to the procedure whereas, there is documentary evidence on record that earlier she had entered into an agreement to sale with one Subhash Rastogi and later try to rescind that agreement on the similar plea of fraud and coercion as has been raised in the present case. This conduct of the appellant-Krishna Devi and then she not depicting the correct facts that in fact it was not a loan agreement but an agreement to sale which was executed by her with Laxman Sing, Krishna Devi is not entitled to claim any equitable relief by invoking plea of sympathy by highlighting a fact in her plaint that she belongs to a Scheduled Caste Community and being an illiterate Pardanashi woman should be dealt with compassion.
In fact, the plaint as was filed by Krishna Devi, is drafted in English. In the verification, there is no stipulation that it was read over to the plaintiff-Krishna Devi in Hindi and its contents were explained to her in Hindi as she is an illiterate woman and, thereafter, her thumb impression/signature was obtained on
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such plaint. This itself is sufficient to decline the pleading of the appellant that she is an illiterate woman. Same in the ratio in case of Lalit Kumar Rai (supra) that equitable relief is to be refused where a party is coming to Courts with unclean hands.
On the basis of the some reasoning, judgment rendered by a co-ordinate Bench of this Court in case of Surendra Singh (supra) gets distinguished.
As far as law laid down in case of Vijay Kumar and others (supra) is concerned, the question of readiness and willingness would have arisen when appellant-Krishna Devi would have accepted execution of the agreement. When she herself had denied the execution of the agreement, then the facts of the case that Shiksha Devi approached the Court of Sub-registrar for execution of the sale deed and marked her presence on 28.02.2006 a date specifically mentioned as cut off date in the agreement is sufficient proof of readiness and willingness on the part of Shiksha Devi and no adverse inference could have been drawn as has been rightly not drawn by the courts below.
Law laid down in case of Ram Autar (supra) turns on its own facts as such facts are distinguishable because there was a lot of time lag between the filing of the suit and the time limit mentioned in the agreement to sale for execution of the sale deed and, therefore, under those peculiar circumstances aspect of the issuance of notice has been considered.
Law laid down in case of Bijai Bahadur and others (supra) too has no relevance to the facts of the present case inasmuch there is a specific averment as to the willingness and readiness to perform the part of the contract on the part of the respondent.
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Law laid down in case of Dr. Manhohar Ganapathi Ravankar (supra) is also distinguishable on its own facts inasmuch as Hon’ble Supreme Court has in para-11 discussed in detail that when earnest money of Rs.26,000/- was paid by cheque, then contention of the vendee that he had made payment of Rs.6,75,000/- in cash is beyond comprehension.
Therefore, in that case vendee having failed to show payment of substantial consideration, was declined the equitable relief and a direction was given to the vendor to refund a sum of Rs.26,000/- which was admittedly paid by cheque with simple interest @ 9% in lieu of decree of specific performance.
Law laid down in case of S.P. Chengalvaraya Naidu (supra) are not applicable to the facts of the present case inasmuch as, there is no allegation of withholding of any document by the defendants except that it has been alleged that defendant could have produced a copy of the pass-book on the strength of which, it was averred that she had withdrawn some amount from her bank and paid it to the appellant. That fact gets diluted in view of the fact that there is a registered agreement to sale and, therefore, the presumption will be that such document is a validly executed document.
Similarly, law laid down in case of M/s. Krishna Utensils has no application to the facts of the present case.
Law laid down in case of Jayakantham and others (Supra) is also not in favour of the appellant inasmuch as when the totality of the facts and circumstances are taken into consideration, when contract was entered into between Shiksha Devi and Krishna Devi, then it cannot be said that any unfair advantage was derived by Shiksha Devi over Krishna Devi.
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Though, it has been urged that why Krishna Devi sell her land for a paltry sum of Rs.2,50,000/- but the fact remains the same Krishna Devi had agreed to sale more than 50% of her holding in favour of Laxman Singh for a paltry sum of Rs.1,40,000/and, therefore, when there was an addition of Rs.1,10,000/- for remaining portion, then it cannot be said that deal was inequitable. In any case, the discretion, which has been exercised by the Hon’ble Supreme Court is under Article 142 whereby Hon’ble Supreme Court decided to direct the parties to pay a sum of Rs.15 lakhs in lieu of specific performance but such authority is not vested in the High Court and, therefore, any discretion exercised by Hon’ble Supreme Court in exercise of its authority vested under Article 142 can not be exercised by this Court and, therefore, ratio of the judgment is not available to the appellant.
As far as law laid down in case of Sardar Singh (supra) is concerned, it is true that the grant of relief of specific performance is discretionary but that discretion is to be exercised in favour of a person who approaches with the Court with clean hands and not in favour of a person who is a habitual litigant and has a habit of entering into an agreement and then challenging the same as a sham and bogus document as is discussed by the learned first Appellate Court in case of Subhash Rastogi as mentioned discussed above.
Issue no.2 raised by the appellant that no sale consideration was paid, is not available as a defence to challenge the judgment and decree that no sale consideration was ever transmitted in favour of Krishna Devi.
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In this regard, law is settled mere non-payment of purchase money does not prevent the passing of the ownership of the purchased property from the vendor to the purchaser, and the purchaser notwithstanding such non-payment can maintain the suit for possession as has been laid down by Allahabad High Court in case of Rajnath Singh Vs. Paltu and others as reported in 1908 (5) Alld. L.J., Page-79.
Similarly, in case of Vidyadhar Vs. Manik Rao and another as reported in AIR 1999 SC 1441, wherein, it has been held that when sale will be deemed to be complete and payment of whole price at time of execution of sale deed is not ‘sin qua non’ to completion of sale.
Another issue which has been raised is that the suit for specific performance was not maintainable as Shiksha Devi had filed a counter claim and was required to include all her claims in it.
In this regard, provisions contained in Order-8 Rule-6A are relevant which provides that a defendant in a suit may, in addition to his right of pleading a set off under Rule-6, set up, by way of counter claim against the claim of the plaintiff, any right or claim in respect of a cause of action accruing to the defendant against the plaintiff either before or after the filing of the suit but before the defendant has delivered his defence on or before the time limited for delivering his defence has expired. Whether such counter claim is in the nature of a claim of damages or not; provided that such counter claim shall not exceed the pecuniary limits of the jurisdiction of the Court.
In the present case, a brief chronology will depict that how this plea of the appellants that suit for specific
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performance was not maintainable as Shiksha Devi had filed a counter claim, and had not included a suit for specific performance in such counter counter claim is not applicable. Agreement was dated 23.12.2005. (1) It was drawn between Krishna Devi and Shiksha Devi (2) Time limit prescribed for completion of the transaction in the agreement was upto 22.08.2006 (3) Krishna Devi filed original suit dated 446 of 2006 on 21.08.2006 from which S.A. No.07 of 2020 originates. (4) Shiksha Devi filed counter claim on 23.09.2006 and filed her original suit no.838 of 2006 on 06.10.2006 seeking specific performance. However, it is apparent that though the suit was filed by Krishna Devi before the Court of Civil Judge (Junior Division) as is apparent from the copy of the plaint filed in the paper book as Annexure-1 in Second Appeal NO.07 of 2020 and Annexure-5 copy of the counter claim filed by Shiksha Devi whereas suit which was filed by Shiksha Devi was filed in the court of Civil Judge (Senior Divison) and therefore, apparently in terms of the provisions contained in Order-8 Rule-6A, the suit of Shiksha Devi for specific performance exceeded the pecuniary limits of the jurisdiction of the Court where Krishna Devi had filed her suit for injunction therefore, it cannot be said that counter claim filed by Shiksha Devi claiming injunction against the plaintiff Krishna Devi has since not included the claim for specific performance was not maintainable.
Under such facts and circumstances, and armed with the judgment of this Hon’ble Court in case of Rajendra Singh and Chandra Pal (supra) that if a party gives false defence and for telling lies before the court such party should not be awarded and given benefit of his greed and coupled with the fact that
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escalation of a price cannot be a ground of denying the relief of specific performance and further that there is a presumption in favour of a registered document as has been held in case of Jamila Begum (supra) , this Court is of the opinion that concurrent finding of fact being against the appellant Krishna Devi does not call for any interference and, therefore, both the second appeals failed.
The judgment and decree passed in favour of Shiksha Devi granting her right to claim specific performance of the agreement is upheld and the judgment and decree refusing to interfere in the relief sought by the appellant for cancellation of the agreement too is upheld. No substantial question of law appears to have been made and, therefore, the appeals deserve to fail and are dismissed.
Order Date :- 6.1.2020 Ashutosh
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3 issues framed by the court
Whether the registered agreement to sell dated 23.12.2005 was a forged and sham document, so that the suit for its cancellation should have been decreed.
Whether the vendee proved her readiness and willingness to perform her part of the contract throughout the subsistence of the agreement.
Whether the vendee's suit for specific performance was not maintainable because she had omitted to claim that relief in her counter claim in the vendor's suit.
Colour shows how this judgement treated each authority
Gopal Krishnaji Ketkar Vs. Mohammed Haji Latif and othersApplied¶18
AIR 1968 SC 1413 · Who else cites this
Bhaiyalal Vs. Ram DinDistinguished¶19
AIR 1989 Alld.130 · Who else cites this
Surendra Singh Vs. SanjeevDistinguished¶20
2018 (6) AWC 5470
Vijay Kumar and others Vs. Om PrakashDistinguished¶23
AIR 2018 SC 5098 · Who else cites this
Ram Autar Vs. Baldeo SinghDistinguished¶24
2017 (3) ARC 408
Bijai Bahadur and others Vs. Shri Shiv Kumar and anotherDistinguished¶25
AIR 1985 Alld. 223 · Who else cites this
Manohar Ganapathi Ravankar Vs. H. Gurunanda RaikarDistinguished¶26
2019 (5) SCC 236 · Who else cites this
S.P. Chengalvaraya Naidu (dead) by L.Rs. Vs. Jagannath (dead) by L.Rs. and othersDistinguished¶29
AIR 1994 SC 853 · Who else cites this
M/s. Krishna Utensils Vs. State Financial Corporation Regional Office, Moradabad and othersDistinguished¶30
1989 (15) ALR 662
Lalit Kumar Jain and another Vs. Jaipur Traders Corporation Private Ltd.Relied on¶31
Civil Appeal No.2957 of 1997
Jayakantham and others Vs. Abay KumarDistinguished¶34
2017 (5) SCC 178 · Who else cites this
Sardar Singh Vs. (smt.) Krishna Devi and anotherExplained¶35
1994 (4) SCC 18 · Who else cites this
Kanshi Ram Vs. Om Prakash Jawal and othersReferred¶36
AIR 1996 SC 2150 · Who else cites this
A.C. Arulappan Vs. (Smt.) Ahalya NaikApplied¶37
2001(6) SCC 600 · Who else cites this
Rajendra Singh Vs. Chandra PalRelied on¶68
2016 (7) ADJ 564
Ramathal Vs. Maruthathal and othersRelied on¶69
2017 (3) ARC 657
Randhir Kaur Vs. Prithvi Pal Singh and othersReferred¶70
2019 (3) ARC 14
Jamila Begum (D) through L.Rs. Vs. Shami Mohd (D) Through L.Rs. and anotherRelied on¶73
2019 Alld. CJ 435 (SC)
Bhaskaran Vs. George JosephRelied on¶76
AIR 1988 Kerala
Rajnath Singh Vs. Paltu and othersRelied on¶108
1908 (5) Alld. L.J., Page-79
Vidyadhar Vs. Manik Rao and anotherRelied on¶109
AIR 1999 SC 1441 · Who else cites this
3 provisions across 3 enactments
Krishna Devi
Shiksha Devi
Vivek Agarwal
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
