Dismissed

Dr.Mrs.Jyotsna Subhash Modak v. Dr.Smt.Gangubai Alias Shalinibai Tilak and Ors.

Bombay HC18 Aug 2004SA/90/2002

Case brief

AI extract

What is this about?

This is a second appeal against the refusal of specific performance of an agreement to sell hospital premises. The High Court dismissed the appeal, holding that the lower courts rightly exercised discretion under Section 20 of the Specific Relief Act against the appellant due to suppression of material facts regarding loss of possession.

What did the court decide?

Second appeal dismissed with no order as to costs. Cross objection not entertained.

Dr.Mrs.Jyotsna Subhash Modak Vs Dr.Smt.Gangubai Alias… — Specific Performance | Bombay HC (2004)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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CIVIL APPELLATE JURISDICTION

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SECOND APPEAL NO.90 OF 2002

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Dr.Jyotsna Subhash Modak ...Appellant Vs. 1. Dr.Smt.Gangubai @ Shalinibai Tilak 2. Dr.Shalinibai Vishnu Tilak Charitable Trust 3. Mrs.Meena Arun Sathe 4. Dr.M.N.Chaudhari 5. Dr.Shalinibai Vishnu Tilak 6. Sau.Padmaja Prakash Deshpande ...Respondents Shri S.N.Chandrachud for the Appellants Shri V.B.Tapkir for the Respondent Nos.2,3,5 and 6. Shri Balasaheb Bandal h/f Shri Uday Warunjikar for the Respondent No.1

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CORAM: A.S.OKA, J.

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DATED: AUGUST 18, 2004.

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P.C.:

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1. Heard Shri Chandrachud appearing for the Appellant and

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Shri Tapkir for Respondent Nos. 2,3,5 and 6. The Appellant

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is	the original Plaintiff and the	Respondents	are	the
original specific	defendants. The suit is filed performance of the agreement dated 3rd September	by the	Appellant	for
1977 ex Appella Courts	ecuted by the Respondent No.1 in her favour. The nt is the daughter of the Respondent no.1. Both the below have declined to grant	relief	of	specific
perform	ance in favour of the Appellant.	Both	the	Courts
below	have held that execution of the	suit agreement	has	been

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proved and it is also proved that the Appellant was ready and willing to perform her part of the suit agreement. However, the Courts below have exercised discretion under Section 20 of the Specific Relief Act, 1963 (hereinafter referred to as

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the said Act of 1963) against the Appellant for the reasons

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recorded in the Judgments.

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2.	Shri	Ch	andrachud	th	e learned C	ounsel app	earing for	the
Appellant	sub	mitted	that		the lear	ned Tri	al Judge	has
exercised	discretion	und	er Se	ction	20 of	the said	Act o	f 1963
mainly	on	the	ground	of	hardship of	the Respo	ndent No.1	He
invited	my	atten	tion to	th	e finding r	ecorded by	the	Trial
Court	that	if	the	decree	for speci	fic perfor	mance is	passed,
the	Respondent	No.	1 who	w	as an old	lady w	ill suffer	hardship
as	the Resp	ondent	No.1	was	residing wi	th her	servant in	the
suit	building	and	that	she	has no	other pr	emises	available.
He	submitted	th	at due	to	unfortunate	event of	the death	of
the	Respondent	No.	1 duri	ng	the pendency	of thi	s Appeal,	the
ground	on whic	h the	learn	ed	Trial Judge	has ref	used to	pass a
decree	for	specific	perfor	mance	is no	more in	existence.	He
submitted	that	if	the	said	ground is	no mor	e in	existence,
the	decree	for	specific	perf	ormance must	follow	as the	suit
agreement	is	held	to be	pro	ved and it	is also	held that	the
Appellant	has	been	ready	an	d willing to	perform	her part	of
the agr	eement.	He	submit	ted	that in res	pect of	a part	of the
same	property	the	Respo	ndent	No.1 had	executed	an	agreement
for sale	in fa	vour	of one	Us	ha Wakade	who is	a real s	ister of

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the Appellant.	The reli	ef o	f specific	perform	ance	was	denied
to the said	daughter	by bo	th the	Courts	belo	w.	Being
aggrieved by	the Judgm	ents	and Decrees	passed	in	the	suit,
the said Usha	Wakade	has	preferred a	Second	Appeal	in	this
Court which has	been	admitt	ed for	final	he	aring.	He
therefore submitted	that	this	Appeal a	lso dese	rves	to	be
admitted and h	eard along	with	the said	Second	App	eal.	He
pointed out that	relianc	e	is placed	by	th	e	contesting
Respondents on	a fabricated	wil	l of the	Respond	ent	No.1.	He

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submitted that as the Respondent No.1 is no more alive,

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decree for specific performance deserves to be passed.

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3.	I	ha	ve	cons	idered the	said	sub	miss	ions.	It	is	to	be
borne		in m	ind	that	that the	Ap	pellan	t	is	the	daughte	r of	the
Respo	ndent	No.	1.		On 3rd	Septe	mber	1	977,	the	agreem	ent	for
sale		of th	e	hospital	premises	wa	s	exe	cuted	by	the	Resp	ondent
No.1	in	fav	our	of	the Ap	pellant.			The	agr	eed	price	as
menti	oned	in	th	e agr	eement is	Rs.6	0,000	/-	out	of	which	a	sum
of	Rs.6,4	00/- i	s	paid	by the	App	ellant		to	the	Respo	ndent	No.1
as	earn	est	mon	ey.	It is t	herefore	c	lear	tha	t onl	y	10%	of
consi	deration	has		been	paid	by		the		Appella	nt	to	the
Respo	ndent	No.1.		The	suit	for	spe	cific		perform	ance	was	filed
nearly		five	and	half	years	after	the		date	of	agreem	ent	i.e.
on	19th	March	198	3.	It is to	be	no	ted	that	whe	n the	suit	was
filed,	a	s	per	the	cause title	of	the		plaint	the	age	of	the
Respo	ndent	No.	1	was	73 years.		The	c	ontenti	on	raised	in	the
suit	is	tha	t	the	Appellant	was	put	in		possess	ion	of	the

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property	subject	m	atter	of	the	agre	ement.	The	prayer	for
possession	is	incor	porated	i	n	the	plaint	but the	said	prayer
is made		without	prejud	ice	to	the	main	contention	that	the

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Appellant is in possession of the suit property. The said

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prayer is made in the alternative.

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3.	The	Appel	late	Court	h	a	s recor	ded a	findin	g that	that	in
the	cross	exam	ination	the			Appellant	admitted		that	she is	not
in a	poss	ession	from	the	ye	a	r 198	1. The	A	ppellant	has	also
admitted	in	the	cross	exa	min	a	tion	that a	par	tnership	was	made
between	the	Res	ponden	t N	o.1		and	the App	ellant	an	d as	a
partner,	the	Appella	nt	was	allo	w	ed to	use	some	port	ion of	the
hospital	to	p	ractice	medi	cine	.	I	t is al	so	admitted	in	the
cross	ex	aminatio	n	that	th	e	sai	d partner	ship	was	subs	equently
dissolved.		Th	e	Appellate			Court	has reco	rded	a	clear	finding
that	the	Ap	pellant	has		s	uppressed	the m	ateria	l fact	in	the
plaint	that	she	was	not	in		possess	ion from	the	year	1981.	I
find	from	the	depos	ition	of		the	Appellant	that	in	the	cross
examination	she	ad	mitted	that			she	lost pos	sessio	n in	the	year

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1981 and that she has not disclosed in the plaint that she

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lost possession in the year 1981.

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4.	The Tr	ial	Court	has	exercised th	e	discretion	under
Section	20	against	the A	ppellant	mainly on	the	ground	that
the	Respondent	No.1	will	suffer	hardship.		However,	the
Appellate	Court	has	taken	into	consideration	the	conduct	of
the	Appellant	of	suppressing	the	material	fact	in the	plaint

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that f	rom the ye	ar	1981			she	was		not in	po	ssession	of	the
property	subject matter	of	th	e		agr	eeme	nt.		The	perus	al of	the
paragraph	No.29 of	th	e	J	u	dgment	o	f	the	Ap	pellate	Court	shows
that the	suppression of		facts			on	the		part	of	the	Appellant	is
noted	by the Ap	pell	ate	C	o	urt.	T	he	Trial		Court	has	also
considered	the in	adeq	uacy			of	price		fixed	in	the	agre	ement.
It is	true that inade	quac	y	of		pric	e	b	y itself		is no	ground	to
refuse	the decree	of	sp	e	c	ific	perf	or	mance	of	the	agre	ement.
Considering	all the		facto	rs		th	e	A	ppellate	C	ourt	has d	eclined

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to exercise discretion under Section 20 of the said Act in

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favour of the Appellant.

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5. If the	find	ings recorded	by the	Appellate Co	urt	are
perused, it is	clear	that discr	etion under	Section 20	is	not
exercised arbitrarily.		While	exercising	the	di	scretion,
factors which are		relevant and	germane	are tak	en	into
consideration. Mere	ly	because some	other	view is pos	sible	on
the basis of	evid	ence on reco	rd, is no	ground to		interfere
under Section 100	of	the Code	of Civil	Procedure, 1908.		The
ground of hard	ship	to the Res	pondent No.1	which is		relied
upon the Trial Co	urt	may not be	in existe	nce today.	H	owever,
when the suit	was	decided, the	said gr	ound was	a	very
relevant ground for		exercising dis	cretion und	er Section	20	of
the said Act	against	the Appell	ant. As	stated earlier,		the
Appellate Court ha	s	exercised the	discretion	under Sec	tion	20
of the said	Act	against the	Appellant on	the gro	und	of
suppression of materi	al	facts by t	he Appellant	. No	fault	can

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be found with the Appellate Court for exercising discretion against the Appellant Plaintiff in a suit for specific performance filed by her against her old mother. 6. No substantial question of law arises in this Second Appeal, the same is dismissed with no order as to costs. 7. As the Second Appeal is not admitted, cross objection filed by the Respondents is not entertained. However, it will be open for the Respondents to file an Appeal in case they are aggrieved by any part of the impugned Judgments and Decrees.

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Judge.

Dr.Mrs.Jyotsna Subhash Modak v. Dr.Smt.Gangubai Alias Shalinibai Tilak and Ors.

Case brief

What is this about?

What did the court decide?

Dr.Mrs.Jyotsna Subhash Modak v. Dr.Smt.Gangubai Alias Shalinibai Tilak and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

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Coram

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