Heard Sri Ashfaq Ahmad Ansari, learned counsel for the appellants and Sri K.N. Sahai, learned counsel who has appeared for respondents through caveat.
This is plaintiffs' Second Appeal arising out of O.S. no.386 of 1986. The suit was filed on 8.7.1986 for specific performance of an unregistered agreement for sale dated 14.7.1975 alleged to have been executed by Smt. Alimun Nisa defendant no.1 since deceased and survived by legal representatives. She was either divorcee or separated from her husband due to his second marriage. It was further stated that son of Smt. Alimun Nisa was involved in some criminal cases, hence, Smt. Alimun Nisa requested plaintiff no.2 Mohd. Usman, her real nephew to help her financially, accordingly, plaintiff no.2 advanced money to her and she executed unregistered agreement for sale of her already separated share in the ancestral house in favour of plaintiff no.1 Maimunun Nisa w/o plaintiff no.2 for Rs.30000/- and she was paid Rs.15000/- as earnest money as plaintiffs who are husband and wife were not having ready money. It was further pleaded that at the time of agreement Smt. Alimun Nisa also delivered possession of one room of the house in dispute to the plaintiffs. It was further stated that Rs.7000/- were subsequently paid on different dates till May 1986 to one of the sons of Smt. Alimun Nisa. The property in dispute was subsequently sold on 8.7.1986 (the date on which suit was filed) by Smt. Alimun Nisa to respondent no.4 since deceased and survived by legal representatives in 1986.
The suit was decreed on 10.5.2002 by Civil Judge (S.D.), Court no.2, Varanasi. Against the said judgment and decree Civil Appeal no.69 of 2002 was filed by the legal representatives of defendant no.4 subsequent purchaser Haji Shamsuddin which was numbered as Civil Appeal no.69 of 2002. A.D.J. Court no.14 Varanasi through judgment and decree dated 25.7.2011 allowed the appeal set aside the judgment and decree passed by the trial court and dismissed the suit of the plaintiffs hence this Second appeal.
It was specifically pleaded by the plaintiffs that due to involvement of her son in criminal case Smt. Alimun Nisa had incurred debt and creditors were pressurising her to repay the debt and she was in dire need of money. The agreement was executed only in favour of Maimunun Nisa plaintiff no.1. It is not clear that why her husband Dr. Mohd. Usman plaintiff no.2 was impleaded as plaintiff. The suit was filed on 8.7.1986 i.e. after 11 years of alleged agreement. It was alleged that Rs. 7000/- were paid on different dates till May 1986 to one of the sons of Alimun Nisa. It was further alleged that on 5.7.1986 plaintiffs came to know that defendant no.1 was going to execute the sale deed in favour of defendant no.4, hence they filed application before the Ceiling Department for permission.
The lower appellate court held that for 11 years neither notice was given by the plaintiff no.1 to the defendant no.1 for execution of the sale deed nor she took any other step towards that.
It was also pleaded in the plaint that in the year 1975 State of U.P. had imposed restriction on transfer of Urban Properties. However, that restriction stood lifted by passing of Urban Land Ceiling Act 1976. Under the said Act if only constructed portion was to be sold no permission was required and even if constructed portion and some open appurtenant land was to be sold, it could be sold with the permission. Plaintiffs did not take any step for obtaining the permission until filing of the suit. Plaintiff no.1 in whose favour agreement was alleged to have been executed did not appear as witness to prove that she was always ready and willing to get the sale deed executed. Lower appellate court further held that no dates of subsequent payment of Rs.7000/- were mentioned in the plaint. Lower appellate court further held that no witness of the plaintiff (apart from plaintiff no.2) stated anything about the payment of Rs.7000/-. Lower appellate court categorically held that payment of Rs.7000/- was not proved. Even the allegation of the plaintiffs was that the said amount had not been paid to the defendant no.1 but to her son.
The lower appellate court held that the agreement was not proved to have been executed.
Learned counsel for the appellants after reading one or two sentences of the lower appellate court judgment (second para under point no.1 on pages 9 and 10 of the certified copy of judgment) argued that lower appellate court held that the agreement had in fact been executed by defendant no.1. Some words appear to be missing in the said portion of the judgment. The lower appellate court in the para in question mentioned the case of the appellant and thereafter of the respondent. By reading the whole jdugment it becomes quite clear that the lower appellate court held that the agreement had not been executed by original defendant no.1.
Lower appellate court recorded a categorical finding of fact that the alleged subsequent payment of Rs.7000/- had not been proved. The plaintiffs themselves asserted that at the time of agreement they did not have sufficient money. Moreover, according to the plaint allegations defendant no.1 was divorced or separated real aunt of plaintiff no.2 and was residing in the house in dispute which she inherited from her father and she was in dire need of money. The whole transaction, even if took place, therefore becomes an unconscionable bargain. Such an exploitation by real nephew of divorced lady is rather shocking. If defendant no.1 was in dire need of money, plaintiff no.2 being her nephew it was his moral duty to advance the amount either as help or as loan. Even if agreement for sale was got executed, it was under such extreme circumstances that it can not be said to be a voluntary Act. This amounts to taking undue advantage of week position of one party by the other party. By maximum it can be termed as loan transaction.
Not doing anything for 11 years clearly proves that no agreement was executed and even if agreement was executed, plaintiff no.1 was not ready and willing to perform her part of the agreement and get the sale deed executed. No notice for executing the sale deed was given. No permission was applied for.
The contention that plaintiff no.1 repeatedly requested defendant no.1 to execute the sale deed and on each occasion defendant no.1 replied that she would do that after some time and due to near relation ship plaintiff no.1 did not insist much is nothing but a lame excuse. Even if it is accepted, it goes against the plaintiffs. If twice or thrice executant of agreement for sale on being asked to execute the sale deed defers the execution on one pretext or other, it amounts to refusal. Specific dates of demand and postponement have not been mentioned. Accordingly, the plaintiff no.1 completely failed to prove her readiness and willingness and suit was also barred by time, if the agreement is presumed to have been executed.
Even if every thing stated by the plaintiffs is taken to be correct, still discretionary relief of specific performance cannot be granted particularly in view of the inordinate delay in filing suit (even if the suit is held to be within time).
After hearing learned counsel for the parties on the earlier occasion as well as today I am of the opinion that the appeal is concluded by the findings of fact and no question of law has wrongly been decided by the lower appellate court.
However, on the facts and circumstances of the case, on the earlier date I made a suggestion that respondents legal representatives of subsequent purchaser should pay some amount to the plaintiffs appellants. The learned counsel for the respondents agreed to the suggestion of the Court, however, learned counsel for the appellants sought time to consult his clients.
Today learned counsel for the appellants states that his clients are not agreeable to the suggestion of the Court and their counter suggestion is that the property may be divided in equal share. The property in dispute is a house and in the opinion of the Court it may not be convenient to divide the property. In any case learned counsel for the respondents states that his clients are not agreeable to the division of the property.
Accordingly, Second Appeal is dismissed, however, it is directed the respondents shall pay Rs. 1,25,000/- to the appellants for which Sri Sahai, learned counsel for the respondents has agreed. Let the said amount be deposited before the trial court within two months which may be withdrawn by the appellants according to their share under Muslim law. If it is not so deposited it may be recovered in execution.
Order Date :- 21.11.2011 vkg