Whether purchaser can get specific performance of contract if agreement of sell is not signed by some of coparcener?

IN THE HIGH COURT OF MADHYA PRADESH (JABALPUR BENCH)

First Appeal No. 340 of 2003

Decided On: 01.09.2016

Anand Kumar and Ors.
Vs.
Rajesh Kumar and Ors.

Hon’ble Judges/Coram: S.K. Gangele and Ashok Kumar Joshi, JJ.
Citation: AIR 2017(NOC) 914 MP

1. Appellants have filed this appeal against the judgment and decree dated 25.4.2003 passed in Civil Suit No. 38-A/2000. Plaintiffs filed a suit for specific performance of contract in regard to suit land. The suit is based on a contract, which is said to be executed on 26.9.1995. The plaintiffs also prayed for relief that the sale deed executed by the defendants No. 12 to 14 (i.e. the appellants) dated 14.5.1997 be declared null and void.

2. An agreement is said to be executed on 26.9.1995 between plaintiffs and defendant No. 1, Ex. P-2 to the effect that the defendant No. 1 agreed to sell a land in a consideration of Rs. 3000/- per acre. It is mentioned that at the time of execution of agreement Rs. 40,000/- was paid and remaining amount shall be paid at the time of execution of registry, which shall be executed within a period of 6 months. The Agreement was signed by Rajesh Kumar and Gajay Bahadur Bakshi. Mr. Subhash Chandra Bansal and Mr. Vinay Bahadur attested the agreement as witnesses. The agreement was on stamp paper of Rs. 20/-. The period of execution of registered sale deed, which was up to 31.12.1996 was further extended up to 31.3.1997 by another agreement Ex. P-3 dated 26.12.1996. It was also executed between Gajay Bahadur Bakshi and Rajesh Kumar. Mr. Subhash Chandra, Sushil, Jinnu and others had also agreed for extension of time for execution of sale deed because they were owners of the land. As per the plaintiff, he had requested the defendants to execute the sale deed and he was willing to execute the sale deed. However, the sale deed was not executed. Defendants No. 1 to 11 had executed a sale deed on 14.5.1997 in favour of defendants No. 12 to 14. They had knowledge that the agreement to sale was already executed in regard to said land in favour of the plaintiff. The plaintiff further pleaded that he was in possession on the land and he was willing to perform the contract as well, hence, a decree of specific performance of contract be passed in favour of the plaintiff.

3. The defendants No. 1, 3, 4, 7, 8, 12, 13 and 14 in their written statement, filed jointly, denied the pleadings. They raised preliminary objection about the maintainability of the suit on the ground that the suit was not filed within a period of 3 years from the date of execution of agreement dated 26.9.1995. The defendants further pleaded that the defendants No. 1 to 11 did not enter into any agreement in regard to sale of the land. The defendants No. 12 to 14 obtained possession on the land. The time was essence for execution of sale deed in accordance with agreement dated 26.5.1995. The plaintiff had no sufficient fund, neither he was willing to execute the sale deed. The land was also mutated in favour of defendants 12 to 14. The defendants No. 2(A), (B), (C), (D) & (E) filed independent written statement. They pleaded that their father late Shri Raghvendra Kumar Bakshi was not associated in agreement dated 26.9.1995 and 26.12.1996. He was one of the joint owner of the suit property. Mr. Raghvendra Kumar Bakshi was ill. He did not tell the sons about execution of agreements dated 26.9.1995 and 26.12.1996. The answering defendants had no knowledge of execution of the agreements. Defendant No. 5 filed a separate written statement. He also denied execution of the agreements and pleaded that no agreement was executed by the defendant No. 5, neither he had any knowledge.

4. On the pleadings of the parties, the trial Court framed issues that whether defendants No. 1 to 11 had entered into an agreement with the plaintiff, whether the plaintiff is entitled to get decree of specific performance of contract, whether the sale deed executed by the defendants No. 1 to 11 in favour of defendants No. 12 to 14 is null and void and whether the suit is barred by time.

5. Before the trial Court, power of attorney holder of plaintiff Mr. Laxman Prasad Khare entered into witness box and deposed on behalf of the plaintiff. He deposed that he is power of attorney holder of plaintiff and he has right to depose on behalf of the plaintiff. He deposed that Mr. Gajay Bahadur and other defendants came to execute the agreement on 26.9.1995. An agreement was executed by which they agreed to sell the land area measuring 145 acres in a consideration of Rs. 3000/- per acre. The agreement was executed, which is Ex. P-2 and an amount of Rs. 40,000/- was also paid in this regard. On 22.5.1996, another amount of Rs. 20,000/- was paid. Thereafter, the period of execution of sale deed was further extended up to 31.3.1996 and an agreement was executed to this effect, which is Ex. P-3. It was signed by Mr. Subhash Chandra Bansal and Mr. Vinay Bahadur Singh. The defendants again sought time to execute the sale deed on 27.3.1997, 30.4.1997. The last date to execute the sale deed was 31.5.1997. The plaintiff issued a registered notice dated 31.5.1997 to execute the sale deed. He had also gone office of Registrar, Sehora alongwith an amount of Rs. 1 lakh, but the defendants did not turn up to execute the sale deed. In his cross-examination, he admitted the fact that he did not know that how many persons were owners of the land for which the agreements to sale were executed. There were other owners also. PW-2 Vinay Bahadur Singh in his evidence deposed that the agreement was executed before him, which is Ex. P-2 and he had signed the same as witness of the agreement and Rs. 1 lakh was paid at the time of execution of agreement. Further, another agreement was executed and date of execution of sale deed was extended up to 31.05.1997, which is Ex. P-3. PW-3 Shivcharan Tiwari deposed that he was working, at the relevant time, as Head Constable and he was posted at Police Station Madhavnagar Katni. Mr. Gajay Bahadur Bakshi made a complaint before the police and thereafter, an affidavit Ex. P-14 was executed and other affidavits Ex. P-15 and Ex. P-16 were also executed.

6. The defendant No. 1 Gajay Bahadur DW-1 in his evidence deposed that initially an agreement was executed in the year of 1995. The agreement was executed between him and Mr. Rajesh Kumar. He deposed that sellers were he himself, his brother, two uncles and sisters. There was no talk between him and Rajesh Kumar. It was agreed that the registry would be executed within a period of six months. Thereafter, further period of six months was extended. On the second time, the time of execution of registry was extended. Thereafter, the witness further deposed that he had a talk with Mr. Subhash Bansal that he was not taking the land and he had a requirement of money because health of his mother was not proper, hence, he would like to sell the land. At that time, he had canceled the agreement and also returned the money. At that time, his younger brother Mahendra Kumar, elder brother Raghvendra were present and thereafter, the sale deed of the land was executed in favour of other defendants. He denied the fact that he had received any intimation for registry of the sale deed from the plaintiff. DW-2 Anand Kumar, the witness of defendant deposed that he had purchased the land from Mr. Vikas Goyal and Sharda Devi had purchased the land from Mr. Gajay Bahadur, Raghvendra Prasad and others in a consideration of Rs. 4,50,000/- by a registered sale deed on 14.5.1995. The possession of the land was handed over to him. Mutation was also done in favour of him and he is in possession on the land. The rin-pustika is also in his favour. DW-3 Sanjay Bahadur in his evidence deposed that he knows Mr. Raghvendra Bakshi. He did not enter into any agreement in regard to sale of the land of his ownership, neither he was authorized to sell the land to Mr. Gajay Bahadur Bakshi.

7. Except these witnesses, no other witness has been examined on behalf of the plaintiffs and defendants.

8. The trial Court on the basis of evidence has held that the plaintiff is eligible to get a decree of specific performance because an agreement was executed and subsequently, other persons had also ratified the agreement. The defendants in spite of notice did not execute the sale deed. It is further held by the trial Court that the sale deed executed in favour of the defendants No. 12 to 14 is null and void and the Court passed a decree of specific performance of contract.

9. Learned counsel appearing on behalf of the appellants has contended that the agreement dated 26.9.1995 is void ab initio because it was not executed by all the owners of the land. It is further submitted that the evidence of power of attorney holder, who entered into witness box on behalf of the plaintiff, is inadmissible because he could not depose on behalf of the plaintiff. The learned counsel further submitted that there is no finding that the plaintiff was ready and willing to perform his part of contract and the agreements dated 26.9.1995 (Ex. P-2) and 16.12.1996 (Ex. P-3) are inadmissible in evidence because proper stamp duty was not paid on the agreements. It is further submitted that the suit was barred by limitation. In support of his contentions, the learned counsel relied on the following judgments:

(i) Shanmughasundaram and others vs. Diravia Nadar (dead) by LR’s and another, MANU/SC/0190/2005 : AIR 2005 SC 1836;

(ii) Baital Singh vs. Shrilal, MANU/MP/0565/2007 : 2008 (1) MPHT 499;

(iii) Janki Vashdeo Bhojwani and another vs. Industrial Bank Ltd. and others, MANU/SC/1030/2004 : 2005 (1) MPLJ 421;

(iv) Diwan Singh Harnam Singh vs. Bhaiya Lal, MANU/MP/0044/1997 : 1997 (2) MPLJ 202;

(v) Ram Awadh (dead) by LRs. and others vs. Achhaibar Dubey and another, MANU/SC/0066/2000 : AIR 2000 SC 860;

(vi) Leeladhar Yadav vs. Siddhartha Housing Cooperative Society Ltd. Garha, MANU/MP/0296/2005 : 2006 (3) JLJ 424;

(vii) Smt. Chand Rani (dead) by LRs vs. Smt. Kamal Rani (dead) by LRs, MANU/SC/0285/1993 : AIR 1993 SC 1742;

(viii) Vijay Bhadur and Champalal vs. Surendra Kumar, MANU/MP/0070/2003 : 2003 (2) MPLJ 86;

(ix) Deochand Bhura vs. Purushottam Das Tondon and others, MANU/MP/0228/2004 : 2004 (2) MPLJ 148;

(x) Omprakash vs. Laxminarayan and others, MANU/SC/1019/2013 : 2014 (2) MPLJ 16.

10. Contrary to this, the counsel appearing on behalf of the respondents has contended that the judgment and decree passed by the trial Court is in accordance with law. The executor of the agreement admitted in his evidence about the execution of agreement. Some consideration was paid at the time of execution of agreement. The initial agreement was ratified by other owners of the land. The plaintiff was willing to perform his part of contract. It is further submitted by the learned counsel for the respondents that the original executor of the agreement did not file the appeal. This appeal has been field by the subsequent purchasers. Hence, the appeal is not maintainable and the trial Court has rightly passed the decree of specific performance of contract. In support of his contentions, learned counsel has relied on the following judgments:

(i) Jugraj Singh and another vs. Labh Singh and others, MANU/SC/0178/1995 : (1995) 2 SCC 31;

(ii) Anokhilal vs. Seema Chordia (Ku.) & Ors., MANU/MP/0708/2009 : I.L.R. [2009] M.P. 1060;

(iii) Smt. Indira Kaur and others vs. Sheo Lal Kapoor, MANU/SC/0448/1988 : (1988) 2 SCC 488;

(iv) Sh. Raj Kumar Sharma vs. Smt. Pushpa Jaggi & others, MANU/DE/2934/2005 : AIR 2006 Delhi 156;

(v) Javer Chand and others vs. Pukhraj Surana, MANU/SC/0036/1961 : (1962) 2 SCR 333 &

(vi) Shyamal Kumar Roy vs. Sushil Kumar Agrawal, MANU/SC/8588/2006 : (2006) 11 SCC 331.

11. It is an admitted fact that initially an agreement Ex. P-2 dated 26.9.1995 was executed between the plaintiff and defendant No. 1. It is also admitted fact that the defendant No. 1 is not the sole owner of the land for which the agreement was executed. It was a coparcenary property. The other coparceners did not sign the initial agreement Ex. P-2. Subsequently, the period of execution of sale deed was extended vide another agreement dated 26.12.1996 i.e. Ex. P-3. On the backside of the agreement, signatures of other persons who were coparceners are there to the effect that they had agreed to extend the time. But fact remains that at the time of initial execution of the agreement, all the co-owners had not signed the agreement. The sale deed was not executed within time as per the initial agreement. The trial Court relied on the testimony of PW-3 Head Constable Shri Shivcharan Tiwari to the effect that some co-sharers had filed affidavits i.e. Ex. P-14 to Ex. P-16 and admitted that they had knowledge in regard to execution of agreement dated 26.9.1995. The defendants No. 2 to 5 have specifically denied that they had executed any agreement or authorized to execute the agreement to the defendant No. 1 on their behalf.

12. The Apex Court in the matter of Shanmughasundaram and others vs. Diravia Nadar (dead) by LR’s and another, MANU/SC/0190/2005 : AIR 2005 SC 1836 has held in regard to enforceability of an agreement which was not executed by all the co-shares. The Apex Court has held as under:

“29. The facts in present case are distinguishable. Admittedly, the property has been jointly inherited by two brothers and three sisters. As heirs under the Hindu Succession Act, they inherited the property as co-owners. In the absence of partition between them, the two brothers together had undivided share in the property and they could not have agreed for sale of the entire property. They were competent to execute agreement to the extent only of their undivided share in the property. In the event of sale of such undivided share, the vendee would be required to file a suit for partition to work out his right in the property. The left out three sisters as co-owners having undivided share in the whole property, the two brothers are incompetent to abide by the award.

30. Learned counsel makes a reference to Section 12 of the Specific Relief Act 1963 and submits that arbitration agreement and consequent award should be allowed to be enforced to the extent of share of two brothers leaving the vendee to work out his right, if necessary, in case the sisters object to the sale, by a suit in accordance with Section 12 of the Specific Relief Act.

31. Section 12 of the Specific Relief Act, in our considered opinion, would be of no assistance in the situation obtaining here. In the absence of sisters being parties to the agreement, the vendee can at best obtain undivided interest of two brothers in the property. Section 12 of the Specific Relief Act can not be invoked by the vendee to obtain sale of undivided share of the two brothers with a right to force partition on the sisters who were not parties to the agreement of sale. Such a relief under section 12 cannot be obtained by a vendee, on purchase of an undivided share of the property of some of the co-owners, against other co-owners who were not parties to the sale agreement.”

13. It is a fact that the plaintiff did not appear in the witness box. On behalf of plaintiff, his power of attorney holder appeared in the witness box, but the power of attorney holder cannot depose in a civil suit on behalf of plaintiff as held by the Hon’ble Apex Court in the matter of Janki Vashdeo Bhojwani and another vs. Industrial Bank Ltd. and others, MANU/SC/1030/2004 : 2005 (1) MPLJ 421. The Apex Court has held as under:

“15. Apart from what has been stated, this Court in the case of Vidhyadhar vs. Manikrao and Another, MANU/SC/0172/1999 : (1999) 3 SCC 573 observed at page 583 SCC that “where a party to the suit does not appear in the witness-box and states his own case on oath and does not offer himself to be cross-examined by the other side, a presumption would arise that the case set up by him is not correct”.

16. In civil dispute the conduct of the parties is material. The appellants have not approached the Court with clean hands. From the conduct of the parties it is apparent that it was a ploy to salvage the property from sale in the execution of Decree.

17. On the question of power of attorney, the High Courts have divergent views. In the case of Shambhu Dutt Shastri Vs. State of Rajasthan, MANU/RH/0397/1985 : 1986 2 WLL 713 it was held that a general power of attorney holder can appear, plead and act on behalf of the party but he cannot become a witness on behalf of the party. He can only appear in his own capacity. No one can delegate the power to appear in witness box on behalf of himself. To appear in a witness box is altogether a different act. A general power of attorney holder cannot be allowed to appear as a witness on behalf of the plaintiff in the capacity of the plaintiff.

18. The aforesaid judgment was quoted with the approval in the case of Ram Prasad Vs. Hari Narain & Ors. MANU/RH/0233/1998 : AIR 1998 Raj. 185. It was held that the word “acts” used in Rule 2 of Order III of the CPC does not include the act of power of attorney holder to appear as a witness on behalf of a party. Power of attorney holder of a party can appear only as a witness in his personal capacity and whatever knowledge he has about the case he can state on oath but be cannot appear as a witness on behalf of the party in the capacity of that party. If the plaintiff is unable to appear in the court, a commission for recording his evidence may be issued under the relevant provisions of the CPC.

19. In the case of Dr. Pradeep Mohanbay Vs. Minguel Carlos Dias reported in MANU/MH/0485/1999 : 2000 Vol. 102 (1) Bom. L.R. 908, the Goa Bench of the Bombay High Court held that a power of attorney can file a complaint under Section 138 but cannot depose on behalf of the complainant. He can only appear as a witness.

20. However, in the case of Humberto Luis & Anr. Vs. Floriano Armando Luis & Anr. reported in MANU/MH/0240/2000 : 2002 (2) Bom. C.R. 754 on which the reliance has been placed by the Tribunal in the present case, the High Court took a dissenting view and held that the provisions contained in order III Rule 2 of CPC cannot be construed to disentitle the power of attorney holder to depose on behalf of his principal. The High Court further held that the word “act” appearing in order III Rule 2 of CPC takes within its sweep “depose”. We are unable to agree with this view taken by the Bombay High Court in Floriano Armando (supra).

21. We hold that the view taken by the Rajasthan High Court in the case of Shambhu Dutt Shastri (supra) followed and reiterated in the case of Ram Prasad (supra) is the correct view. The view taken in the case of Floriano Armando Luis (supra) cannot be said to have laid down a correct law and is accordingly overruled.”

14. The Apex Court in the aforesaid case has affirmed the judgment of the Rajasthan High Court. In the aforesaid judgment, the Court has held that the power of attorney holder can appear only as a witness in his personal capacity to depose whatever knowledge he has about the case he can state on oath, but, he cannot appear as a witness on behalf of the party in the capacity of that party. In the present case, the power of attorney holder of the plaintiff could not depose about the readiness and willingness of the plaintiff to execute the agreement and also the fact that whether the plaintiff executed the agreement or not. Hence, the evidence abduced by the power of attorney holder on behalf of the plaintiff is inadmissible.

15. In view of the judgment of the Apex Court passed in the matter of Shanmughasundaram and others vs. Diravia Nadar (dead) by LR’s and another, MANU/SC/0190/2005 : AIR 2005 SC 1836, quoted above, if the agreement had not been signed by the undivided family persons, the agreement is not binding on the co-sharers who did not sign the agreement. In the present case, admittedly, the co-sharers of the land did not sign the initial agreement. It is alleged that subsequently they had agreed for extension of time. However, this does not amount that all the co-sharers had signed the initial agreement. The co-sharers denied execution of any agreement in their written statements. The evidence of the Police Constable is also not admissible to the effect that the co-sharers filed affidavits to the effect that the agreement was binding on them. In our opinion, there was no valid and legal agreement between the parties. Hence, the trial Court has committed error of law in passing decree of specific performance of contract.

16. In regard to the evidence that the plaintiff was willing to perform his part of agreement, the plaintiff did not appear in the witness box. Hence, in such circumstances, the trial Court has committed error of law in holding that the plaintiff was ready and willing to perform the agreement.

17. The counsel for the respondent No. 1 raised objection about the maintainability of appeal on the ground that the appeal has been filed by the subsequent purchasers, hence, the appeal is not maintainable. That objection is also unsustainable because the initial agreement was not executed by all the co-sharers. Hence, there was no agreement in the eye of law. It is a fact that all the co-sharers had sold the land subsequently in favour of the appellants. Hence, in our opinion, the appeal filed by the appellants is maintainable. The judgment cited by the counsel for the respondent No. 1 passed in the matter of Jugraj Singh and another vs. Labh Singh and others, MANU/SC/0178/1995 : (1995) 2 SCC 31 is distinguishable on facts.

18. In view of the aforesaid findings, in our opinion, it is not necessary to consider other arguments of the counsel for the appellants. Hence, the appeal filed by the appellants is hereby allowed. Impugned judgment and decree dated 25.4.2003 passed in Civil Suit No. 38-A/2000 by the trial Court is hereby set aside. The suit filed by the plaintiff is dismissed.

19. In view of the facts of the case, parties shall bear their own costs.

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