agreement is hit by section 29 of the Contract Act for being vague,
ambiguous and uncertain. It was never intended by mortgagor to sell her
property to the mortgagee and was an extension of the mortgage deed in
existence prior thereto. It matters little if the term "agreement to sell" or
"sale deed" in incorporated in the Exhibited document. The sale agreement
is dated "2.6.1980" while the date of registration of sale deed was fixed as
"13.3.1980". What can any person of reasonable intelligence make of this?
Parties could not go back in time to execute the sale deed when the date of
execution was prior to the date of the agreement. Plaintiffs did not put the
defendant to notice of change by extension of the period of execution of
sale deed by a separate contract or a corrigendum signed by mutual consent
to go to office of the Sub Registrar for registration of the conveyance deed.
The lacuna was fatal enough and tended to remove the base of a suit for
specific performance which depends by the nature of things on future target
dates agreed upon and compliances made to fructify a contract into a sale
deed or a decree for execution of an agreement when defendant defaulted in
performance of his part of the contract or within reasonable time of it where
time is not the essence of the contract. The relief in any case is discretionary
and an order will not be passed only because it is lawful to do so. Besides,
the overarching principle against clogs in redemption found in section 60 of
the Transfer of Property Act, 1882 which contains the exception "Provided
that the right conferred by this section has not been extinguished by act of
the parties" but the proviso did not apply when ambiguity did not dictate an
extinguishment of a right to redemption by any of the material acts of theoriginal defendant in relation to the plaintiffs. On a comprehensive reading
between the lines of the agreement dated June 2, 1980 in the context of the
existing relationship of mortgagor and mortgagee between the parties and
for the variety of reasons recorded above I am unable to persuade myself to
commend the view that the right of redemption was "extinguished" by act of
parties irrevocably in the face inter alia of the brooding presence of
condition # 3 in the agreement. In any case the suit document was one sided
and not ad idem and thumb impressions of the plaintiff on the document are
not sufficient to conclude a contract based on consent of both the parties
that it should be treated as an intention to transfer property. Still murkier is
the condition lurking at the end of the deed which recites: "Hen ce, this sale
deed ha s been got scribed so that it may serve as an authority at the time ofneed". If the document pretended to act in replacement of a sale deed or a
“need” [to do what?]it was not registered and then what was the legal basis
of effecting mutation of the suit property in the name of the plaintiffs whenproperty had not been legally passed on, is not clearly discernible amongst
the evidence oral and documentary on record when read as a whole. In any
event a revenue entry in the mutation confers no title rights. Only a
cumulative understanding of the totality of the facts and circumstances
presented can resolve the controversy logically and holistically and in this
pursuit allowance must rest finally in the court of second instance as the
final court on law and fact and for this Court to act in support of the
appellate decree even if it does so ex aequo et bono, that is, for a decision
based on what is fair and just. It is towards this salutary end the above
discussion proceeds to a culmination.
For the variety of reasons recorded above, the appeal is accepted,
the appellate decree is set aside as not legally sustainable and that of the
trial court is restored being a just and proper adjudication of the dispute.
The suit for possession by way of specific performance is dismissed with
costs in all the courts. Refund adjustments, if any, would remain open to
For the variety of reasons recorded above, the appeal is accepted,
the appellate decree is set aside as not legally sustainable and that of the
trial court is restored being a just and proper adjudication of the dispute.
The suit for possession by way of specific performance is dismissed with
costs in all the courts. Refund adjustments, if any, would remain open to
redemption proceedings, if and when taken.
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
RSA No. 2256 of 1987 (O&M)
Date of Decision: 15.05.2015
Bachan Kaur through her LRs
Sadhu Singh and others
... Appellants
Versus
Kaka Singh and others ... Respondents
CORAM:- HON'BLE MR. JUSTICE RAJIV NARAIN RAINA
Citation: AIR 2016(NOC)291 P&H
RSA No. 2256 of 1987 (O&M)
Date of Decision: 15.05.2015
Bachan Kaur through her LRs
Sadhu Singh and others
... Appellants
Versus
Kaka Singh and others ... Respondents
CORAM:- HON'BLE MR. JUSTICE RAJIV NARAIN RAINA
Citation: AIR 2016(NOC)291 P&H
1. The substantial questions of law which arise in this appeal on
which the parties were heard are as follows:-
(i) Whether the agreements to sell dated June 02, 1980 Ex.
PW-10/A and June 20, 1980 Ex.P-6 suffer from vagueness and uncertainty
and are, therefore, void under section 29 of the Contract Act, 1872?
(ii) Whether the agreement dated June 02, 1980 is an
agreement to sell immovable property with clear expression of intention of
offer and acceptance by the parties clearly expressing their intention or
whether the transaction was in continuation of mortgage and the agreement
is or is not a clog on redemption with reference to section 60 of the Transfer
of Property act, 1882?
(iii) Whether there has been an error of judgment in the
appellate decree by misreading the evidence on record leading to recording
of unsatisfactory findings on the major issues on which the case rested?
The parties agree that an opinion is demanded from court in
second appeal on the above three questions of law which are substantial in
nature arising from the evidence on record and the legal propositions
involved.
2. This is defendant's second appeal. The plaintiffs' suit for
possession by way of specific performance of agreement to sell the property
in dispute was dismissed by the trial court. The decree has been reversed in
first appeal. The suit has been decreed. Hence, the present appeal has been
preferred.
3. The focal point of the litigation is the sale agreement dated June
02, 1980 which is an unregistered document produced by plaintiffs on
record as Ex.PW-10/A. Plaintiffs claim there rights to suit property from it
while the defendant #1 through her legal representatives stoutly refute the
claim asserting to the contrary that there was no real intention to sell suit
property and the document when read in the correct perspective was in
continuation of mortgage deed/s existing between the parties. Much will
depend on the construction of the exhibits terms and conditions in the
background of a prior mortgage deed with respect to suit land in order to
find out the real intention of the parties from the document which falls at
page 104 of the lower court record and its relevant translated extract reads
as follows:-
(iii) Whether there has been an error of judgment in the
appellate decree by misreading the evidence on record leading to recording
of unsatisfactory findings on the major issues on which the case rested?
The parties agree that an opinion is demanded from court in
second appeal on the above three questions of law which are substantial in
nature arising from the evidence on record and the legal propositions
involved.
2. This is defendant's second appeal. The plaintiffs' suit for
possession by way of specific performance of agreement to sell the property
in dispute was dismissed by the trial court. The decree has been reversed in
first appeal. The suit has been decreed. Hence, the present appeal has been
preferred.
3. The focal point of the litigation is the sale agreement dated June
02, 1980 which is an unregistered document produced by plaintiffs on
record as Ex.PW-10/A. Plaintiffs claim there rights to suit property from it
while the defendant #1 through her legal representatives stoutly refute the
claim asserting to the contrary that there was no real intention to sell suit
property and the document when read in the correct perspective was in
continuation of mortgage deed/s existing between the parties. Much will
depend on the construction of the exhibits terms and conditions in the
background of a prior mortgage deed with respect to suit land in order to
find out the real intention of the parties from the document which falls at
page 104 of the lower court record and its relevant translated extract reads
as follows:-
"...I am in need of more money for my business (karobaar).
Therefore, I while making addition of Rs.10,000/- in mortgage
amount in respect of the share of Harbhajan Singh, undertake
that a sum of Rs.35750/- in respect of the share of Harbhajan
Singh have been received by me at the house. I have entered
into an agreement to sell this mortgaged land with Kaka Singh
and Dev Singh aforesaid as per the following terms and
conditions:-
1. That the value of land has been fixed @ Rs.20,000/- per
Killa.
2. That sale deed would have to be got registered prior to
10.3.2037. The vendees shall bear the expenses of registration.
3. All the remaining terms and conditions would remain the
same like that of mortgage deed.
4. If I fail to abide by the conditions of this agreement, I would
pay a sum of Rs.20,000/- and the vendees would have the right
to get the sale deed registered through the court.
5. In case the vendees fail to get the sale deed registered as
per the terms of Agreement to Sell prior to 10.3.1980 and
would not pay the remaining amount that eventuality I would
forfeit the said amount of Rs.10,000/- and sell the same (land)
to some one else. Hence, this sale deed has been got scribed so
that it may serve as an authority at the time of need.
Dated: 2.6.1980 S. 12.3.1902 Monday"
(underlined for emphasis)
4. In order to understand the case better a few introductory facts are
necessary to be narrated. Kaka Singh and Baldev Singh instituted a Civil
Suit # 200 of 8.9.81 against Bachan Kaur and Gurmel Singh, wife and son
of Joginder Singh. One Harbhajan Singh died unmarried and issueless. His
estate was succeeded by his mother Bachan Kaur defendant # 1. Bachan
Kaur died pending second appeal and her legal heirs were impleaded vide
order dated January 18, 1993 passed in CM # 181-C of 1993. These were
Sadhu Singh, Labh Kaur and Gurmail Kaur. Sadhu Singh also died pending
appeal and yet another application under Order 22 Rule 3 CPC was filed for
Therefore, I while making addition of Rs.10,000/- in mortgage
amount in respect of the share of Harbhajan Singh, undertake
that a sum of Rs.35750/- in respect of the share of Harbhajan
Singh have been received by me at the house. I have entered
into an agreement to sell this mortgaged land with Kaka Singh
and Dev Singh aforesaid as per the following terms and
conditions:-
1. That the value of land has been fixed @ Rs.20,000/- per
Killa.
2. That sale deed would have to be got registered prior to
10.3.2037. The vendees shall bear the expenses of registration.
3. All the remaining terms and conditions would remain the
same like that of mortgage deed.
4. If I fail to abide by the conditions of this agreement, I would
pay a sum of Rs.20,000/- and the vendees would have the right
to get the sale deed registered through the court.
5. In case the vendees fail to get the sale deed registered as
per the terms of Agreement to Sell prior to 10.3.1980 and
would not pay the remaining amount that eventuality I would
forfeit the said amount of Rs.10,000/- and sell the same (land)
to some one else. Hence, this sale deed has been got scribed so
that it may serve as an authority at the time of need.
Dated: 2.6.1980 S. 12.3.1902 Monday"
(underlined for emphasis)
4. In order to understand the case better a few introductory facts are
necessary to be narrated. Kaka Singh and Baldev Singh instituted a Civil
Suit # 200 of 8.9.81 against Bachan Kaur and Gurmel Singh, wife and son
of Joginder Singh. One Harbhajan Singh died unmarried and issueless. His
estate was succeeded by his mother Bachan Kaur defendant # 1. Bachan
Kaur died pending second appeal and her legal heirs were impleaded vide
order dated January 18, 1993 passed in CM # 181-C of 1993. These were
Sadhu Singh, Labh Kaur and Gurmail Kaur. Sadhu Singh also died pending
appeal and yet another application under Order 22 Rule 3 CPC was filed for
impleading his LRs in CM # 1508-C of 2006. Widow Karamjit Kaur, her
two minor sons and a daughter under the guardianship of Karamjit Kaur
were impleaded in place of late Sadhu Singh vide order February 23, 2006.
The operation of the appellate decree passed by the learned Additional
District Judge (II), Sangrur dated May 19, 1987 was stayed by this court
when the appeal was admitted on July 10, 1987. The operation of the stay
order continues till presently.
5. Late Harbhajan Singh and Gurmel Singh were owners of 38
Kanals 8 Marlas of land in equal shares. Bachan Kaur wife of Joginder
Singh was the mother of late Harbhajan Singh and Gurmail Singh were the
defendants in the suit, with Bachan Kaur as Class I inheritor of Harbhajan
Singh's rights in property, her predeceased son. On June 08, 1978
Harbhajan Singh and Gurmel Singh mortgaged the property in favour of
plaintiffs for a sum of Rs.45,000/- and delivered possession to them. They
created a further mortgage of the suit land for Rs.6500/- vide separate
mortgage deed dated December 28, 1978 vide [ExP2]. Both the defendants
i.e. Bachan Kaur and Gurmel Singh created further charge on the said land
in the sum of Rs.9000/- and executed another mortgage deed dated May 23,
1979. Thereafter, Harbhajan Singh died and was succeeded qua his share by
his mother, Bachan Kaur. Bachan Kaur, according to the plaintiffs, agreed
to sell her half inherited share to the plaintiffs by the sale agreement dated
June 02, 1980 [ExP4] and received Rs.10,000/- as earnest money from the
plaintiffs. A sum of Rs.35,750/- out of the previous mortgage deed was to
be adjusted towards the sale price which was fixed at Rs.20,000/- per killa
(acre). The sale deed was to be executed by March 10, 2037 BK (equivalent
two minor sons and a daughter under the guardianship of Karamjit Kaur
were impleaded in place of late Sadhu Singh vide order February 23, 2006.
The operation of the appellate decree passed by the learned Additional
District Judge (II), Sangrur dated May 19, 1987 was stayed by this court
when the appeal was admitted on July 10, 1987. The operation of the stay
order continues till presently.
5. Late Harbhajan Singh and Gurmel Singh were owners of 38
Kanals 8 Marlas of land in equal shares. Bachan Kaur wife of Joginder
Singh was the mother of late Harbhajan Singh and Gurmail Singh were the
defendants in the suit, with Bachan Kaur as Class I inheritor of Harbhajan
Singh's rights in property, her predeceased son. On June 08, 1978
Harbhajan Singh and Gurmel Singh mortgaged the property in favour of
plaintiffs for a sum of Rs.45,000/- and delivered possession to them. They
created a further mortgage of the suit land for Rs.6500/- vide separate
mortgage deed dated December 28, 1978 vide [ExP2]. Both the defendants
i.e. Bachan Kaur and Gurmel Singh created further charge on the said land
in the sum of Rs.9000/- and executed another mortgage deed dated May 23,
1979. Thereafter, Harbhajan Singh died and was succeeded qua his share by
his mother, Bachan Kaur. Bachan Kaur, according to the plaintiffs, agreed
to sell her half inherited share to the plaintiffs by the sale agreement dated
June 02, 1980 [ExP4] and received Rs.10,000/- as earnest money from the
plaintiffs. A sum of Rs.35,750/- out of the previous mortgage deed was to
be adjusted towards the sale price which was fixed at Rs.20,000/- per killa
(acre). The sale deed was to be executed by March 10, 2037 BK (equivalent
to June 23, 1980). It may be mentioned in a minor digression that the
Bikrami calendar starts in 57 BC and is named after King Vikramaditya.
The stamp and registration expenses were to be borne by the plaintiffs. It
was agreed that in case of default, the other party would be entitled to get
the sale deed registered by court process.
6. It is the case of the plaintiffs that Bachan Kaur was not prepared
to execute the sale deed due to certain unavoidable circumstances and the
parties mutually extended the date of execution of the sale deed vide
another agreement dated June 20, 1980, which was the target date to effect
conveyance of property by registration in the Sub Registrar's office at
Sunam, Punjab. On June 20, 1980 Bachan Kaur received another sum of
Rs.6000/- as earnest money. Thus, she received Rs.16,000/- in all as earnest
money on the basis of two agreements to sell. The plaintiffs claimed that
they were ready and willing to perform their part of the agreement and get
the sale deed executed but Bachan Kaur defaulted. They came to know that
Bachan Kaur intended to sell her land before June 20, 1981, the target date.
The suit was filed three days before the target date for permanent injunction
to restrain Bachan Kaur from selling her land to third parties and intimation
in this effect was sent to her by registered post. It was their say that five
days before the target date, i.e. on June 15, 1981 she promised to reach the
office of the Sub Registrar, Sunam for execution of the sale deed. The
plaintiffs went forth but Bachan Kaur failed to turn up. They got an affidavit
attested on that date to mark their presence before the Sub Registrar. They
again approached Bachan Kaur and she once again promised to execute the
sale deed on June 22, 1981. This is alone an oral assertion. The plaintiffs
Bikrami calendar starts in 57 BC and is named after King Vikramaditya.
The stamp and registration expenses were to be borne by the plaintiffs. It
was agreed that in case of default, the other party would be entitled to get
the sale deed registered by court process.
6. It is the case of the plaintiffs that Bachan Kaur was not prepared
to execute the sale deed due to certain unavoidable circumstances and the
parties mutually extended the date of execution of the sale deed vide
another agreement dated June 20, 1980, which was the target date to effect
conveyance of property by registration in the Sub Registrar's office at
Sunam, Punjab. On June 20, 1980 Bachan Kaur received another sum of
Rs.6000/- as earnest money. Thus, she received Rs.16,000/- in all as earnest
money on the basis of two agreements to sell. The plaintiffs claimed that
they were ready and willing to perform their part of the agreement and get
the sale deed executed but Bachan Kaur defaulted. They came to know that
Bachan Kaur intended to sell her land before June 20, 1981, the target date.
The suit was filed three days before the target date for permanent injunction
to restrain Bachan Kaur from selling her land to third parties and intimation
in this effect was sent to her by registered post. It was their say that five
days before the target date, i.e. on June 15, 1981 she promised to reach the
office of the Sub Registrar, Sunam for execution of the sale deed. The
plaintiffs went forth but Bachan Kaur failed to turn up. They got an affidavit
attested on that date to mark their presence before the Sub Registrar. They
again approached Bachan Kaur and she once again promised to execute the
sale deed on June 22, 1981. This is alone an oral assertion. The plaintiffs
again went to Tehsil office on the fresh date and remained there from 9 AM
to 5 PM along with the balance of the sale price and expenses to meet stamp
duty and registration charges but she failed to turn up. They got another
affidavit attested on June 22, 1981. This is the background in which the suit
was brought.
7. On notice, Bachan Kaur appeared and contested the case and filed
her written statement wherein she denied the allegations in the plaint. She
pleaded that Inder Singh son of Mithu had half share in the suit land while
the remaining half was owned by her sons Gurmel Singh, Harbhajan Singh
and Sadhu Singh in equal shares. Therefore, Gurmel Singh and late
Harbhajan Singh were not owners to the extent of half share in the suit land.
She, however, admitted that she succeeded her son Harbhajan Singh after
the latter's death but the agreements dated June 02, 1980 and June 20, 1980
were fictitious. She was a poor widow. The plaintiffs had been cultivating
the suit land on Chakota on her behalf for Rs.2000/- per year in terms of a
Chakotanama and under the garb of this Chakotanama, they might have
taken her thumb impressions on some documents/papers fraudulently to
doctor them for their undue benefit. Defendant # 2 was served in the suit in
person on February 16, 1982 but he failed to turn up to contest the case. He
was proceeded against ex parte.
8. The contesting defendant left in the fray was Bachan Kaur, the
present appellant. On the pleadings of the parties, the following issues were
framed by the then Sub Judge I Class, Sangrur:-
"1. Whether the suit is bad for non-joinder of necessary
parties?
2. Whether the suit in the present form is not maintainable?
to 5 PM along with the balance of the sale price and expenses to meet stamp
duty and registration charges but she failed to turn up. They got another
affidavit attested on June 22, 1981. This is the background in which the suit
was brought.
7. On notice, Bachan Kaur appeared and contested the case and filed
her written statement wherein she denied the allegations in the plaint. She
pleaded that Inder Singh son of Mithu had half share in the suit land while
the remaining half was owned by her sons Gurmel Singh, Harbhajan Singh
and Sadhu Singh in equal shares. Therefore, Gurmel Singh and late
Harbhajan Singh were not owners to the extent of half share in the suit land.
She, however, admitted that she succeeded her son Harbhajan Singh after
the latter's death but the agreements dated June 02, 1980 and June 20, 1980
were fictitious. She was a poor widow. The plaintiffs had been cultivating
the suit land on Chakota on her behalf for Rs.2000/- per year in terms of a
Chakotanama and under the garb of this Chakotanama, they might have
taken her thumb impressions on some documents/papers fraudulently to
doctor them for their undue benefit. Defendant # 2 was served in the suit in
person on February 16, 1982 but he failed to turn up to contest the case. He
was proceeded against ex parte.
8. The contesting defendant left in the fray was Bachan Kaur, the
present appellant. On the pleadings of the parties, the following issues were
framed by the then Sub Judge I Class, Sangrur:-
"1. Whether the suit is bad for non-joinder of necessary
parties?
2. Whether the suit in the present form is not maintainable?
3. Whether the plaintiffs have got no locus standi to file the
suit? OPD.
4. Whether the defendant No.1 entered into an agreement of
sale deed dated 2.6.80 and received Rs.10000/- as earnest
money as alleged? OPP.
5. Whether the time of performance of agreement was extended
after the receipt of Rs.6000/- on 20.6.80 as alleged? OPP.
6. Whether the defendant mortgaged the land in dispute prior
to the agreement of sale vide mortgage deed dated 8.6.78 and
28.12.78 as alleged? If so, its effect? OPP.
7. Whether the plaintiffs were always ready and willing to
perform their part of contract? OPP.
8. Whether the thumb impression obtained on the agreement
have been obtained fictitiously and fraudulently as alleged by
the defendant. If so its effect? OPD.
9. Whether the plaintiff is entitled to the injunction prayed for?
OPP.
10. Whether the plaintiff is entitled to the specific performance
of agreement of sale? OPP.
11. If issue No.10 is not proved whether to any other
alternative relief the plaintiff is entitled to for Rs.32000/-?
OPP.
12. Relief."
9. The parties produced both oral and documentary evidence on the
issues struck, the onus of which were placed on either side according to the
pleadings.
10. Issue # 1 was decided in favour of the plaintiffs holding that the
suit does not suffer from non-joinder of necessary parties since only
defendant # 1 remained in the picture and in contesting position. Issue # 2
was decided against the defendants. The suit was found maintainable. Issue
# 3 re. locus standi went in favour of the plaintiffs. Issue # 4 & 5 were taken
up together and they have an important bearing on the case. The learned
suit? OPD.
4. Whether the defendant No.1 entered into an agreement of
sale deed dated 2.6.80 and received Rs.10000/- as earnest
money as alleged? OPP.
5. Whether the time of performance of agreement was extended
after the receipt of Rs.6000/- on 20.6.80 as alleged? OPP.
6. Whether the defendant mortgaged the land in dispute prior
to the agreement of sale vide mortgage deed dated 8.6.78 and
28.12.78 as alleged? If so, its effect? OPP.
7. Whether the plaintiffs were always ready and willing to
perform their part of contract? OPP.
8. Whether the thumb impression obtained on the agreement
have been obtained fictitiously and fraudulently as alleged by
the defendant. If so its effect? OPD.
9. Whether the plaintiff is entitled to the injunction prayed for?
OPP.
10. Whether the plaintiff is entitled to the specific performance
of agreement of sale? OPP.
11. If issue No.10 is not proved whether to any other
alternative relief the plaintiff is entitled to for Rs.32000/-?
OPP.
12. Relief."
9. The parties produced both oral and documentary evidence on the
issues struck, the onus of which were placed on either side according to the
pleadings.
10. Issue # 1 was decided in favour of the plaintiffs holding that the
suit does not suffer from non-joinder of necessary parties since only
defendant # 1 remained in the picture and in contesting position. Issue # 2
was decided against the defendants. The suit was found maintainable. Issue
# 3 re. locus standi went in favour of the plaintiffs. Issue # 4 & 5 were taken
up together and they have an important bearing on the case. The learned
trial Judge reached the conclusion that defendant # 1 did not agree to sell
the suit land nor had she received a sum of Rs.16,000/- as earnest money.
The second agreement dated June 20, 1980 was exhibited as P-6.
11. In order to prove both these issues, the plaintiffs examined
Gurbux Singh inter alia PW-10 who was one of the marginal witnesses to
the agreement. Kaka Singh appeared as PW-1 to prove the agreements.
Similarly, Rattan Singh PW-3 was marginal witness of the agreement Ex.P-
6 dated June 20, 1980. The question was whether there was due execution
of the agreements. After evaluating the evidence the trial court thought that
plaintiffs had failed to prove the agreements as binding documents in
support of a decree for specific performance of suit land of which they were
already in possession through mortgage deeds. In reaching this conclusion,
the trial court reasoned inferentially:-
(i) looking to the number of mortgage deeds from Harbhajan
Singh and Gurmel Singh that after the death of Harbhajan Singh, if money
was said to have been paid to the defendants then it appears that Bachan
Kaur was "pre-possessed" by the plaintiffs including late Harbhajan Singh
and Gurmel Singh who was young and had not the discretion to assess or
fully understand the impact of their acts in respect to their property.
(ii) The revenue record placed on the file showed that neither
Harbhajan Singh nor Gurmel Singh nor Bachan Kaur on the death of
Harbhajan Singh had half share in the land measuring 38 Kanals 8 Marlas
detailed in the head note of the plaint. On the other hand, it was Inder Singh
son of Mithu who had half share in the joint khata including the land in
dispute and the remaining half was owned by sons of Bachan Kaur i.e.
the suit land nor had she received a sum of Rs.16,000/- as earnest money.
The second agreement dated June 20, 1980 was exhibited as P-6.
11. In order to prove both these issues, the plaintiffs examined
Gurbux Singh inter alia PW-10 who was one of the marginal witnesses to
the agreement. Kaka Singh appeared as PW-1 to prove the agreements.
Similarly, Rattan Singh PW-3 was marginal witness of the agreement Ex.P-
6 dated June 20, 1980. The question was whether there was due execution
of the agreements. After evaluating the evidence the trial court thought that
plaintiffs had failed to prove the agreements as binding documents in
support of a decree for specific performance of suit land of which they were
already in possession through mortgage deeds. In reaching this conclusion,
the trial court reasoned inferentially:-
(i) looking to the number of mortgage deeds from Harbhajan
Singh and Gurmel Singh that after the death of Harbhajan Singh, if money
was said to have been paid to the defendants then it appears that Bachan
Kaur was "pre-possessed" by the plaintiffs including late Harbhajan Singh
and Gurmel Singh who was young and had not the discretion to assess or
fully understand the impact of their acts in respect to their property.
(ii) The revenue record placed on the file showed that neither
Harbhajan Singh nor Gurmel Singh nor Bachan Kaur on the death of
Harbhajan Singh had half share in the land measuring 38 Kanals 8 Marlas
detailed in the head note of the plaint. On the other hand, it was Inder Singh
son of Mithu who had half share in the joint khata including the land in
dispute and the remaining half was owned by sons of Bachan Kaur i.e.
Gurmel Singh, Harbhajan Singh and Sadhu Singh. Therefore, Bachan Kaur
representing Harbhajan Singh had only 1/6
th share in the joint khata
including the land in dispute. It was not the case of the plaintiffs that
defendant # 1 had agreed to sell 1/6th
share in the joint khata and had agreed
to transfer possession of share in the land measuring 38 Kanals 8 Marlas
subject matter of suit. Thus, even if Bachan Kaur intended to sell her part of
the joint khata she would alienate only 1/6
th share in the suit land and not
half of it. It appeared to the trial Judge that the plaintiffs did not consult the
previous record before entering into the alleged sale agreements. If they had
exercised due diligence on the land they would have known the real position
with respect to ownership of land. The trial Judge noticed with his eyes
open that in the agreement Ex.PW-10/A, the number of the khewat entered
is 37/78 as mentioned in the Jamabandi for the year 1972-73 but by June 02,
1980 the Jamabandi for the year 1977-78 had come into existence. In the
heading of the plaint, the khewat number mentioned is 38. This also showed
that the plaintiffs did not consult the latest revenue record to find out the
true ownership legacy in respect of the suit land. The court found the
plaintiffs were already in possession of land under certain mortgage deeds
and on the basis of the same, they continued to obtain further sale deeds
from the defendants and finally they ventured to procure the agreements of
sale on the basis of entries in the mortgage deeds.
(iii) The trial Judge found a significant factor which it thought
went to the root of the case and demolished the entire plank of the plaintiffs
inasmuch as the stamp papers were purchased on the date of the agreement
i.e. June 02, 1980 whereas the date for the execution of the sale deed was
fixed prior thereto i.e. on March 10, 1980 in terms of condition # 2 of the
agreement reproduced above. Obviously, it follows squitter that there was
something fundamentally wrong in the agreement to sell where the target
date could have only been subsequent to the date of execution. This alone
cast a serious doubt as to the genuineness and validity of the sale agreement.
This void or chasm was not explained by the plaintiffs in their oral and
documentary evidence produced in support of a decree of specific
performance.
(iv) Insofar as the thumb impressions on the sale agreements are
concerned they were denied emphatically by Bachan Kaur. Her case was
that she really intended to give the suit land on Chakota to the plaintiffs and
they misused their authority and good faith reposed in them by Bachan Kaur
who was by then an aged person and proved on the file not to be a literate or
an educated person. The trial court reasoned, and I think quite correctly, that
though burden remained on defendants but onus shifted on the plaintiffs in
view of the denial of the thumb impressions as being intended to be put on a
document for the purposes of sale. To recite this question, the trial court
read the evidence of Shanti Sarup, the scribe of Ex.PW-10/A and Ex.P-6
appearing as PW-12 but no direct question was put to him in the crossexamination
that these agreements were scribed by him although he
appeared for them as a scribe to the aforesaid agreements. Bant Singh is also
a common witness to the two sale agreements but he was given up as
unnecessary by the plaintiffs. This, the learned trial Judge thought cast a
serious shadow on the validity of the agreements in dispute. Facing failure
of proof of fact by evidence, an attempt was made by the plaintiffs to recall
representing Harbhajan Singh had only 1/6
th share in the joint khata
including the land in dispute. It was not the case of the plaintiffs that
defendant # 1 had agreed to sell 1/6th
share in the joint khata and had agreed
to transfer possession of share in the land measuring 38 Kanals 8 Marlas
subject matter of suit. Thus, even if Bachan Kaur intended to sell her part of
the joint khata she would alienate only 1/6
th share in the suit land and not
half of it. It appeared to the trial Judge that the plaintiffs did not consult the
previous record before entering into the alleged sale agreements. If they had
exercised due diligence on the land they would have known the real position
with respect to ownership of land. The trial Judge noticed with his eyes
open that in the agreement Ex.PW-10/A, the number of the khewat entered
is 37/78 as mentioned in the Jamabandi for the year 1972-73 but by June 02,
1980 the Jamabandi for the year 1977-78 had come into existence. In the
heading of the plaint, the khewat number mentioned is 38. This also showed
that the plaintiffs did not consult the latest revenue record to find out the
true ownership legacy in respect of the suit land. The court found the
plaintiffs were already in possession of land under certain mortgage deeds
and on the basis of the same, they continued to obtain further sale deeds
from the defendants and finally they ventured to procure the agreements of
sale on the basis of entries in the mortgage deeds.
(iii) The trial Judge found a significant factor which it thought
went to the root of the case and demolished the entire plank of the plaintiffs
inasmuch as the stamp papers were purchased on the date of the agreement
i.e. June 02, 1980 whereas the date for the execution of the sale deed was
fixed prior thereto i.e. on March 10, 1980 in terms of condition # 2 of the
agreement reproduced above. Obviously, it follows squitter that there was
something fundamentally wrong in the agreement to sell where the target
date could have only been subsequent to the date of execution. This alone
cast a serious doubt as to the genuineness and validity of the sale agreement.
This void or chasm was not explained by the plaintiffs in their oral and
documentary evidence produced in support of a decree of specific
performance.
(iv) Insofar as the thumb impressions on the sale agreements are
concerned they were denied emphatically by Bachan Kaur. Her case was
that she really intended to give the suit land on Chakota to the plaintiffs and
they misused their authority and good faith reposed in them by Bachan Kaur
who was by then an aged person and proved on the file not to be a literate or
an educated person. The trial court reasoned, and I think quite correctly, that
though burden remained on defendants but onus shifted on the plaintiffs in
view of the denial of the thumb impressions as being intended to be put on a
document for the purposes of sale. To recite this question, the trial court
read the evidence of Shanti Sarup, the scribe of Ex.PW-10/A and Ex.P-6
appearing as PW-12 but no direct question was put to him in the crossexamination
that these agreements were scribed by him although he
appeared for them as a scribe to the aforesaid agreements. Bant Singh is also
a common witness to the two sale agreements but he was given up as
unnecessary by the plaintiffs. This, the learned trial Judge thought cast a
serious shadow on the validity of the agreements in dispute. Facing failure
of proof of fact by evidence, an attempt was made by the plaintiffs to recall
Shanti Sarup to face further examination through application dated January
20, 1983 but the same was disallowed by the then learned trial Judge and for
a valid reason. The plaintiffs then moved an application dated December 04,
1982 to produce an expert to opine on the thumb impressions but the same
was dismissed on February 10, 1983. These facts deliver their own story.
Fifthly, the next question presented before the trial Judge was to
examine the file and to see wherefore the plaintiffs had the money to redeem
the mortgage deeds and to foot the sale consideration of the agreements in
dispute. Kaka Singh plaintiff appearing as his own witness PW-1
maintained that the entire amount was lying in his house. The court did not
believe the story or found any other evidence to prove where the cash lying
at home came from. If it came from commission agents there was no proof
of it. The sale price was fixed at Rs.20,000/- per killa. Even if it is taken that
Bachan Kaur would want to sell half share in the suit land, the price of that
half share would come to Rs.52,000/-. The case of the plaintiffs in the plaint
was that Rs.35,750/- out of the previous mortgage money was to be adjusted
in the sale price. The plaintiffs alleged that contesting defendant had
received two sums of money, i.e. Rs.10,000/- and Rs.5000/- respectively on
the two sale agreements. Therefore, it follows sequitur that a sum of
Rs.51,750/- had been received by defendant # 1 as sale consideration
leaving only a few hundred rupees as balance of the sale price which would
have hardly been of any difficulty in arranging if their story of keeping huge
amounts in their house were to be accepted. The trial Judge found evidence
on record to suggest that there was valid reason for not executing sale deed
on June 20, 1980 and why was the date postponed and how. The court thus
20, 1983 but the same was disallowed by the then learned trial Judge and for
a valid reason. The plaintiffs then moved an application dated December 04,
1982 to produce an expert to opine on the thumb impressions but the same
was dismissed on February 10, 1983. These facts deliver their own story.
Fifthly, the next question presented before the trial Judge was to
examine the file and to see wherefore the plaintiffs had the money to redeem
the mortgage deeds and to foot the sale consideration of the agreements in
dispute. Kaka Singh plaintiff appearing as his own witness PW-1
maintained that the entire amount was lying in his house. The court did not
believe the story or found any other evidence to prove where the cash lying
at home came from. If it came from commission agents there was no proof
of it. The sale price was fixed at Rs.20,000/- per killa. Even if it is taken that
Bachan Kaur would want to sell half share in the suit land, the price of that
half share would come to Rs.52,000/-. The case of the plaintiffs in the plaint
was that Rs.35,750/- out of the previous mortgage money was to be adjusted
in the sale price. The plaintiffs alleged that contesting defendant had
received two sums of money, i.e. Rs.10,000/- and Rs.5000/- respectively on
the two sale agreements. Therefore, it follows sequitur that a sum of
Rs.51,750/- had been received by defendant # 1 as sale consideration
leaving only a few hundred rupees as balance of the sale price which would
have hardly been of any difficulty in arranging if their story of keeping huge
amounts in their house were to be accepted. The trial Judge found evidence
on record to suggest that there was valid reason for not executing sale deed
on June 20, 1980 and why was the date postponed and how. The court thus
concluded that plaintiffs were taking undue advantage of defendant # 1, a
septuagenarian widow. Bachan Kaur recounted her story that after the death
of her husband Joginder Singh and with one son predeceased, the other two
did not look after her material comforts. It was in these critical financial
straits that she had asked the plaintiffs to lend her some money of the like of
Chakota for her to survive and that are how the plaintiffs took undue
advantage of the weak position and arranged the making of two sale
agreements. It was in these circumstances that issues # 4 & 5 were held in
favour of the contesting defendant and against the plaintiffs.
12. With respect to issue # 6 the trial court did not join issue since it
was not a suit for redemption of mortgage but a suit for specific
performance therefore the need to decide the issue did not arise. Therefore,
essentially the execution and consideration of the mortgage deeds was not in
issue, though an issue was framed to that effect.
13. Findings on issues # 4 & 5 were read into certain question and
answers to resolve issue # 7 as to whether the plaintiffs were ready and
willing to perform their part of the contract. In resolving this issue, the trial
Judge reasoned: (i) why did the plaintiffs having paid almost the whole of
the sale price leaving just a few hundred rupees in balance, and then wait for
a year to press the execution of sale deed against defendant # 1. As a point
of fact the trial Judge noted that no notice was given by defendant # 1 when
the target date had arrived for postponing the execution of the sale deed.
The affidavits Ex.P-4 dated June 15, 1981 and Ex.P-6 dated June 22, 1981
sworn by the plaintiffs to show they were present before the Sub Registrar
on the material dates were not sufficient proof of presence since the best
septuagenarian widow. Bachan Kaur recounted her story that after the death
of her husband Joginder Singh and with one son predeceased, the other two
did not look after her material comforts. It was in these critical financial
straits that she had asked the plaintiffs to lend her some money of the like of
Chakota for her to survive and that are how the plaintiffs took undue
advantage of the weak position and arranged the making of two sale
agreements. It was in these circumstances that issues # 4 & 5 were held in
favour of the contesting defendant and against the plaintiffs.
12. With respect to issue # 6 the trial court did not join issue since it
was not a suit for redemption of mortgage but a suit for specific
performance therefore the need to decide the issue did not arise. Therefore,
essentially the execution and consideration of the mortgage deeds was not in
issue, though an issue was framed to that effect.
13. Findings on issues # 4 & 5 were read into certain question and
answers to resolve issue # 7 as to whether the plaintiffs were ready and
willing to perform their part of the contract. In resolving this issue, the trial
Judge reasoned: (i) why did the plaintiffs having paid almost the whole of
the sale price leaving just a few hundred rupees in balance, and then wait for
a year to press the execution of sale deed against defendant # 1. As a point
of fact the trial Judge noted that no notice was given by defendant # 1 when
the target date had arrived for postponing the execution of the sale deed.
The affidavits Ex.P-4 dated June 15, 1981 and Ex.P-6 dated June 22, 1981
sworn by the plaintiffs to show they were present before the Sub Registrar
on the material dates were not sufficient proof of presence since the best
evidence would have been to make an application before the Sub Registrar,
Sunam requesting marking of their presence and to show the officer the
source of meeting the balance sale price. The evidence of Shabad Parkash
PW-2 to prove the affidavits is not proof by evidence of presence of the
plaintiffs in the Tehsil office, Sunam in the office of the Sub Registrar. (ii)
The suit was brought a few days before the target date and, therefore,
presences recorded prior thereto or thereafter are of hardly any consequence
and matter little. The suit was brought for a restraint order against alienation
of suit land by the defendants and not for specific performance. In these
circumstances, if it is so, it did not prove that they were ready and willing to
perform their part of the agreement as prospective buyers. Therefore, the
trial Judge turned to the view that since issues # 4 & 5 having been found
against the plaintiffs issue # 7 ought to fail and against the plaintiffs. Then,
this aspect should also suffer similar consequence. An injunction was
refused so was relief for specific performance nor even the alternative relief
of recovery of Rs.32,000/- claimed in the plaint because the due execution
of the agreements by a preponderance of probabilities was not proved by
evidence nor passing of any consideration thereof. The suit was dismissed.
14. Aggrieved by the decree dismissing the suit, the plaintiffs carried
an appeal to the court of the learned Additional District Judge (II), Sangrur
in Civil Appeal No.251 of 24.12.1985 which has reversed the decree. The
court of first appeal has upturned the findings of the learned trial court on
issues # 4 & 5 as not sustainable. The court of first appeal disagreed with
the observations and findings of the trial court that the plaintiffs had been
advancing money under mortgage deeds; therefore, they “pre-possessed” the
Sunam requesting marking of their presence and to show the officer the
source of meeting the balance sale price. The evidence of Shabad Parkash
PW-2 to prove the affidavits is not proof by evidence of presence of the
plaintiffs in the Tehsil office, Sunam in the office of the Sub Registrar. (ii)
The suit was brought a few days before the target date and, therefore,
presences recorded prior thereto or thereafter are of hardly any consequence
and matter little. The suit was brought for a restraint order against alienation
of suit land by the defendants and not for specific performance. In these
circumstances, if it is so, it did not prove that they were ready and willing to
perform their part of the agreement as prospective buyers. Therefore, the
trial Judge turned to the view that since issues # 4 & 5 having been found
against the plaintiffs issue # 7 ought to fail and against the plaintiffs. Then,
this aspect should also suffer similar consequence. An injunction was
refused so was relief for specific performance nor even the alternative relief
of recovery of Rs.32,000/- claimed in the plaint because the due execution
of the agreements by a preponderance of probabilities was not proved by
evidence nor passing of any consideration thereof. The suit was dismissed.
14. Aggrieved by the decree dismissing the suit, the plaintiffs carried
an appeal to the court of the learned Additional District Judge (II), Sangrur
in Civil Appeal No.251 of 24.12.1985 which has reversed the decree. The
court of first appeal has upturned the findings of the learned trial court on
issues # 4 & 5 as not sustainable. The court of first appeal disagreed with
the observations and findings of the trial court that the plaintiffs had been
advancing money under mortgage deeds; therefore, they “pre-possessed” the
mind of Bachan Kaur. The court of first appeal reasoned that there was no
such plea taken and consequently receipt of mortgage money stood admitted
by Bachan Kaur in her written statement.
15. The court of first appeal did not also agree with the observations
of the learned trial court that Bachan Kaur had 1/6th
share in the land and not
half share. The learned Judge relied on Ex.PW-11/A which is the jamabandi
according to which Harbhajan Singh had 1/6th share in the entire holding
measuring 232 Kanals 10 Marlas. If Harbhajan Singh had 1/6
th share in the
whole khata and that 1/6th share is less than 38 Kanals 8 Marlas which
parcel of land was mortgaged with possession by Harbhajan Singh and
Gurmel Singh in equal shares then the sale by Bachan Kaur could take place
within her share albeit in the written statement Bachan Kaur had admitted
that that she was the owner of one half share in the land in dispute. It was in
this context that one half of the land was agreed to be sold and it could not
be said that Bachan Kaur was the owner of 1/6th share of the land in dispute.
Thus, Bachan Kaur had agreed to sell one half share of the land already
mortgaged with the plaintiffs and that could be validly done as it was less
than 1/6th
share in the whole khata. In coming to this conclusion, the court
of first appeal agreed as correct that Bachan Kaur was infact owner of 1/6
th
share in the whole khata but still it is established that sale agreement
pertained to 38 Kanals 8 Marlas and it was that "she agreed to sell half of
that." This is a factually incorrect statement. Half of 38 Kanals 8 Marlas
would be half less than what was agreed to be sold. If this argument prevails
then most certainly the sale agreement is a vague contract hit by section 29
of the Contract Act. With respect to discrepancy in the description of the
such plea taken and consequently receipt of mortgage money stood admitted
by Bachan Kaur in her written statement.
15. The court of first appeal did not also agree with the observations
of the learned trial court that Bachan Kaur had 1/6th
share in the land and not
half share. The learned Judge relied on Ex.PW-11/A which is the jamabandi
according to which Harbhajan Singh had 1/6th share in the entire holding
measuring 232 Kanals 10 Marlas. If Harbhajan Singh had 1/6
th share in the
whole khata and that 1/6th share is less than 38 Kanals 8 Marlas which
parcel of land was mortgaged with possession by Harbhajan Singh and
Gurmel Singh in equal shares then the sale by Bachan Kaur could take place
within her share albeit in the written statement Bachan Kaur had admitted
that that she was the owner of one half share in the land in dispute. It was in
this context that one half of the land was agreed to be sold and it could not
be said that Bachan Kaur was the owner of 1/6th share of the land in dispute.
Thus, Bachan Kaur had agreed to sell one half share of the land already
mortgaged with the plaintiffs and that could be validly done as it was less
than 1/6th
share in the whole khata. In coming to this conclusion, the court
of first appeal agreed as correct that Bachan Kaur was infact owner of 1/6
th
share in the whole khata but still it is established that sale agreement
pertained to 38 Kanals 8 Marlas and it was that "she agreed to sell half of
that." This is a factually incorrect statement. Half of 38 Kanals 8 Marlas
would be half less than what was agreed to be sold. If this argument prevails
then most certainly the sale agreement is a vague contract hit by section 29
of the Contract Act. With respect to discrepancy in the description of the
khata numbers where the agreements talk about khata # 37 while the
heading of the suit described claimed rights in different khata # 38 which
the court of first appeal thoughts was only a clerical mistake in the
description of land and permitted the same to be amended by the trial court
vide order dated February 01, 1984. The court of first appeal has jibed the
trial court for not noticing this fact in its final dispensation. However, Mr.
Markan appearing for the appellants may not be wrong in urging that the
amendment having been allowed even then nothing depended on it as to the
fate of the suit.
16. The court of first appeal also did not agree with the observations
of the trial court and has not like the use of the word venturing by the trial
Judge that since plaintiffs were already in possession of the mortgage deed,
therefore, they "ventured" out in succeeding to enter the agreements of sale.
The court opined that there is no such plea in the pleadings nor is it true nor
it has been shown as to how the agreements were ventured on the basis of
mortgage deed. The court of first appeal found that both the agreements in
question have been proved on record by their marginal witnesses and the
plaintiffs. Bachan Kaur had impliedly admitted due execution of sale
agreements when she took the plea that thumb impressions were got
obtained by fraud. Bachan Kaur did not controvert in her statement the
purchase of stamp papers by her and she has not proved that thumb
impressions were obtained by fraud. No particulars of fraud have been
mentioned in the written statement. If these were got by representing the
same to be Chakota, no other Chakotanama of the similar type has been got
proved on record although it has been admitted that the plaintiffs were
heading of the suit described claimed rights in different khata # 38 which
the court of first appeal thoughts was only a clerical mistake in the
description of land and permitted the same to be amended by the trial court
vide order dated February 01, 1984. The court of first appeal has jibed the
trial court for not noticing this fact in its final dispensation. However, Mr.
Markan appearing for the appellants may not be wrong in urging that the
amendment having been allowed even then nothing depended on it as to the
fate of the suit.
16. The court of first appeal also did not agree with the observations
of the trial court and has not like the use of the word venturing by the trial
Judge that since plaintiffs were already in possession of the mortgage deed,
therefore, they "ventured" out in succeeding to enter the agreements of sale.
The court opined that there is no such plea in the pleadings nor is it true nor
it has been shown as to how the agreements were ventured on the basis of
mortgage deed. The court of first appeal found that both the agreements in
question have been proved on record by their marginal witnesses and the
plaintiffs. Bachan Kaur had impliedly admitted due execution of sale
agreements when she took the plea that thumb impressions were got
obtained by fraud. Bachan Kaur did not controvert in her statement the
purchase of stamp papers by her and she has not proved that thumb
impressions were obtained by fraud. No particulars of fraud have been
mentioned in the written statement. If these were got by representing the
same to be Chakota, no other Chakotanama of the similar type has been got
proved on record although it has been admitted that the plaintiffs were
cultivating the land earlier to the execution of the alleged agreements.
Therefore, the trial Judge fell in error in shifting the onus to the plaintiffs to
prove the thumb impressions of Bachan Kaur.
17. In coming to this conclusion, the learned appellate Judge has
failed to deal with all the findings of the trial court with sufficient degree of
precision. The trial Judge may have made minor deviations in the process of
his reasoning by using words like venturing etc. but that to the mind of this
court are not sufficient to hold that the learned trial Judge deflected from the
path of justice. If the learned trial Judge roped in the mortgage money and
sale consideration or balance sale consideration then the mortgage part can
be removed and the findings sustained on the question of sale consideration
or the readiness and willingness of the plaintiffs to perform their part of the
contract. It matters little to the lis with respect to specific performance
which is a discretionary relief that Bachan Kaur did not deny the money
received under the mortgage deed. The trial court was not deciding a case of
mortgage or redemption of mortgage. It was only called upon to examine
whether the discretionary relief of specific performance is to be granted or
declined and the heart of the matter I am inclined to think is really the one
as propounded by Mr. Markan that where the sale agreements suffer from
vagueness and irreconcilable ambiguity then they are hit by the provisions
of section 29 of the Contract Act, which important aspect and the
proposition of law applicable to such a document has sadly not been
considered by the court of first appeal while it was expected of him while
sitting in superior judicial appellate jurisdiction, as the final court of fact
and law, to have carefully perused and understood the terms and conditions
Therefore, the trial Judge fell in error in shifting the onus to the plaintiffs to
prove the thumb impressions of Bachan Kaur.
17. In coming to this conclusion, the learned appellate Judge has
failed to deal with all the findings of the trial court with sufficient degree of
precision. The trial Judge may have made minor deviations in the process of
his reasoning by using words like venturing etc. but that to the mind of this
court are not sufficient to hold that the learned trial Judge deflected from the
path of justice. If the learned trial Judge roped in the mortgage money and
sale consideration or balance sale consideration then the mortgage part can
be removed and the findings sustained on the question of sale consideration
or the readiness and willingness of the plaintiffs to perform their part of the
contract. It matters little to the lis with respect to specific performance
which is a discretionary relief that Bachan Kaur did not deny the money
received under the mortgage deed. The trial court was not deciding a case of
mortgage or redemption of mortgage. It was only called upon to examine
whether the discretionary relief of specific performance is to be granted or
declined and the heart of the matter I am inclined to think is really the one
as propounded by Mr. Markan that where the sale agreements suffer from
vagueness and irreconcilable ambiguity then they are hit by the provisions
of section 29 of the Contract Act, which important aspect and the
proposition of law applicable to such a document has sadly not been
considered by the court of first appeal while it was expected of him while
sitting in superior judicial appellate jurisdiction, as the final court of fact
and law, to have carefully perused and understood the terms and conditions
of the pretended agreement of sale and whether the terms therein amounted
to a clog in redemption and therefore violative of section 60 of the Transfer
of Property Act, 1882 as well. It is this principal argument that emerges
from a reading of the agreement to sell dated June 02, 1980. The agreement
says categorically that Bachan Kaur is in need of more money for her
business. She was clearly in a position of disadvantage and a victim of
circumstances. Bachan Kaur records in the agreement: "Therefore, I while
making addition of Rs.10,000/- in mortgage amount in respect of the share
of Harbhajan Singh, undertake that a sum of Rs.35750/- in respect of the
share of Harbhajan Singh have been received by me at the house." Whatever
this [by the underlined words] would mean is awfully hard to decipher or
understand, there being insufficient or lack of direct evidence or by
corroborative evidence in proof of payment of money and when and where
exactly did it take place.
18. I am afraid, the court of first appeal did not even care to read the
contents of the agreement by interpreting them and weighing them in the
scales of the entire evidence to cull out the true intention of the parties and
whether the document sounded like an agreement to sell at all or was in
extension of the mortgage deed continuing the relationship of mortgagor
and mortgagee and not of a prospective buyer and defaulting seller. What
was the need to incorporate condition # 3 if the agreement was one of sale?
Here lies the deepest ambiguity. Unless the subsequent agreement forms a
charge on the property the mortgagor was not liable to pay any sum arising
from his personal obligation except the mortgage amount. All said and
done, Bachan Kaur had contracted that the remaining terms and conditions
to a clog in redemption and therefore violative of section 60 of the Transfer
of Property Act, 1882 as well. It is this principal argument that emerges
from a reading of the agreement to sell dated June 02, 1980. The agreement
says categorically that Bachan Kaur is in need of more money for her
business. She was clearly in a position of disadvantage and a victim of
circumstances. Bachan Kaur records in the agreement: "Therefore, I while
making addition of Rs.10,000/- in mortgage amount in respect of the share
of Harbhajan Singh, undertake that a sum of Rs.35750/- in respect of the
share of Harbhajan Singh have been received by me at the house." Whatever
this [by the underlined words] would mean is awfully hard to decipher or
understand, there being insufficient or lack of direct evidence or by
corroborative evidence in proof of payment of money and when and where
exactly did it take place.
18. I am afraid, the court of first appeal did not even care to read the
contents of the agreement by interpreting them and weighing them in the
scales of the entire evidence to cull out the true intention of the parties and
whether the document sounded like an agreement to sell at all or was in
extension of the mortgage deed continuing the relationship of mortgagor
and mortgagee and not of a prospective buyer and defaulting seller. What
was the need to incorporate condition # 3 if the agreement was one of sale?
Here lies the deepest ambiguity. Unless the subsequent agreement forms a
charge on the property the mortgagor was not liable to pay any sum arising
from his personal obligation except the mortgage amount. All said and
done, Bachan Kaur had contracted that the remaining terms and conditions
would remain the same like that of mortgage deed. What was meant by this?
This is the darker mystery. The document Ex.PW-10/A is a one-sided
document and appears to me to be a clog on redemption of property. It is
only who Bachan Kaur speaks in the document but it is not appear to be an
agreement between Bachan Kaur on the one part and the plaintiffs on the
other, intending to transfer property. It is not an agreement of sale between
them and merely because the plaintiffs have put their thumb impressions is
not enough to read it as a due execution of the sale agreement even though it
pretends to be one. The veil must be lifted to find out what the parties
embarked to do in the subsequent agreement and really intended. Besides,
Condition # 2 fixes the target date as prior to March 10, 2037. This date is
in Bikrami calendar. Therefore, 57 years had to be deducted from 2037 if it
is to be converted into the Christian calendar (AD) then it means March 10,
1980. The agreement muddles up use of all three calendars including the
Sakaya calendar where the date of the execution is March 12, 1902. The day
is specified i.e. Monday, and obviously the registration, if any, had to take
place on a date prior to its execution, which was impossibility itself. This
was the fallacy. But I would not put too much weight on the dates and over
blow them; as placed by the lower appellate court, since the three dates read
in different ways of the working of calendars all add up to one and the same
thing. The dates should not in this case act or be read as a red herring that
misleads or distracts the court from the relevant and important issue forming
the substratum of the case.
19. If the trial court committed an arithmetical error in calculation as
reflected in para.12 of the judgment of court of first appeal then it is curable
This is the darker mystery. The document Ex.PW-10/A is a one-sided
document and appears to me to be a clog on redemption of property. It is
only who Bachan Kaur speaks in the document but it is not appear to be an
agreement between Bachan Kaur on the one part and the plaintiffs on the
other, intending to transfer property. It is not an agreement of sale between
them and merely because the plaintiffs have put their thumb impressions is
not enough to read it as a due execution of the sale agreement even though it
pretends to be one. The veil must be lifted to find out what the parties
embarked to do in the subsequent agreement and really intended. Besides,
Condition # 2 fixes the target date as prior to March 10, 2037. This date is
in Bikrami calendar. Therefore, 57 years had to be deducted from 2037 if it
is to be converted into the Christian calendar (AD) then it means March 10,
1980. The agreement muddles up use of all three calendars including the
Sakaya calendar where the date of the execution is March 12, 1902. The day
is specified i.e. Monday, and obviously the registration, if any, had to take
place on a date prior to its execution, which was impossibility itself. This
was the fallacy. But I would not put too much weight on the dates and over
blow them; as placed by the lower appellate court, since the three dates read
in different ways of the working of calendars all add up to one and the same
thing. The dates should not in this case act or be read as a red herring that
misleads or distracts the court from the relevant and important issue forming
the substratum of the case.
19. If the trial court committed an arithmetical error in calculation as
reflected in para.12 of the judgment of court of first appeal then it is curable
defect without impacting the result of the lis and only a mathematical
revision would be in order and even when sorted out would have no effect
on the legal rights of the parties of whether the amount paid was Rs.51,750/-
or Rs.41,750/- as money allegedly received by Bachan Kaur till June 20,
1980. At first flight the error might appear grave but on due reflection this
court does not view the error as fatal to the intrinsic reasoning of the learned
trial court in dismissing the suit. The trial court order can still be read in
favour of the defendant by removing the calculation defect and even then
the words 'few hundred rupees' will be changed to read a 'few thousand
rupees'. But how does that matter. Nothing hinges on an apparent mistake
which has no side effect on the conclusion of the trial court. In any case, this
error does not give rise to a substantial question of law as suggested by the
Mr. Majithia learned senior counsel appearing for the respondents to the
contrary that it indeed does.
20. The most crucial point in the case, in the incorrect line of
reasoning of the learned court of first appeal, was dependant on the dates
mentioned in the agreement Ex.PW-10/A,. The court blamed the scribe or
the deed writer to have "made a mess of the whole affair." The court of first
appeal has further reasoned by a sweeping generalization that “petition
writers do create such troubles so as to benefit one of the other party and the
other party even does not come to know about the same." The court has
apparently breached the first principle of the law of evidence that no amount
of it can be led with respect to the contents of a document. In the making of
the document evidence of facts can be brought in but it they have to be
admissible and meet probative standards in value in their relationship with
revision would be in order and even when sorted out would have no effect
on the legal rights of the parties of whether the amount paid was Rs.51,750/-
or Rs.41,750/- as money allegedly received by Bachan Kaur till June 20,
1980. At first flight the error might appear grave but on due reflection this
court does not view the error as fatal to the intrinsic reasoning of the learned
trial court in dismissing the suit. The trial court order can still be read in
favour of the defendant by removing the calculation defect and even then
the words 'few hundred rupees' will be changed to read a 'few thousand
rupees'. But how does that matter. Nothing hinges on an apparent mistake
which has no side effect on the conclusion of the trial court. In any case, this
error does not give rise to a substantial question of law as suggested by the
Mr. Majithia learned senior counsel appearing for the respondents to the
contrary that it indeed does.
20. The most crucial point in the case, in the incorrect line of
reasoning of the learned court of first appeal, was dependant on the dates
mentioned in the agreement Ex.PW-10/A,. The court blamed the scribe or
the deed writer to have "made a mess of the whole affair." The court of first
appeal has further reasoned by a sweeping generalization that “petition
writers do create such troubles so as to benefit one of the other party and the
other party even does not come to know about the same." The court has
apparently breached the first principle of the law of evidence that no amount
of it can be led with respect to the contents of a document. In the making of
the document evidence of facts can be brought in but it they have to be
admissible and meet probative standards in value in their relationship with
relevant facts and the fact-in-issue on which the trial is based. Needless to
say, the scribe of agreement Exb. PW 10/A Shanti Sarup was examined by
defendant # 1 as witness PW 12. However, the trial court reasoned that the
scribe was not asked in the witness stand by the plaintiffs during
questioning hour to reveal at least this much whether he was indeed the
scribe of the document, which was the first foundational fact to prove the
genuineness of the agreement that it was one intended for sale of property.
The court of first appeal appears to have ignored this aspect. Rather
strangely, the appeal court should not have adopted a a suspect process of
reasoning and to have accordingly penalized the defendant for the
cleverness of the petition writer when such cleverness added to nothing of
material value to the weight of the plaint. The lower appeal court has
reasoned that the scribe should not have mentioned the dates like that [in the
manner done]. This is how the learned ADJ (II), Sangrur answered the
question of the disparity in the dates observing that discrepancies there are
but they cannot be swept under the carpet.
21. The document Exb PW 10/A appears to this court ex facie vague
and not definitive and I feel inclined to agree with Mr. Markan that it is not
safe to rely on the alleged sale agreement being inhibited by section 29 of
the Contract Act. Moreover, Bant Singh a common witness to the two
agreements but was not produced as one given up as unnecessary by the
plaintiffs. This, the trial court rightly thought casts a shadow on validity of
the agreement in dispute. I would not like to agree with Mr. Majithia's
contention that the ambiguity in the document has to be seen in the light of
the backdrop that the plaintiffs are mortgagees in possession whose
say, the scribe of agreement Exb. PW 10/A Shanti Sarup was examined by
defendant # 1 as witness PW 12. However, the trial court reasoned that the
scribe was not asked in the witness stand by the plaintiffs during
questioning hour to reveal at least this much whether he was indeed the
scribe of the document, which was the first foundational fact to prove the
genuineness of the agreement that it was one intended for sale of property.
The court of first appeal appears to have ignored this aspect. Rather
strangely, the appeal court should not have adopted a a suspect process of
reasoning and to have accordingly penalized the defendant for the
cleverness of the petition writer when such cleverness added to nothing of
material value to the weight of the plaint. The lower appeal court has
reasoned that the scribe should not have mentioned the dates like that [in the
manner done]. This is how the learned ADJ (II), Sangrur answered the
question of the disparity in the dates observing that discrepancies there are
but they cannot be swept under the carpet.
21. The document Exb PW 10/A appears to this court ex facie vague
and not definitive and I feel inclined to agree with Mr. Markan that it is not
safe to rely on the alleged sale agreement being inhibited by section 29 of
the Contract Act. Moreover, Bant Singh a common witness to the two
agreements but was not produced as one given up as unnecessary by the
plaintiffs. This, the trial court rightly thought casts a shadow on validity of
the agreement in dispute. I would not like to agree with Mr. Majithia's
contention that the ambiguity in the document has to be seen in the light of
the backdrop that the plaintiffs are mortgagees in possession whose
mortgage amount has been adjusted in the agreement to sell and the same
cannot be read in isolation but has to be read with the mortgage deeds on
record duly exhibited and entered in the revenue record. Therefore the
plaintiffs cannot be divested of possession as they are sitting mortgagees on
the land from whom additional amounts have been received as sale
consideration.
22. The question to be answered really is not what the scribe over did
but what the parties intended to do. When a serious doubt is cast on the
agreement to sell, then prudence demands that it should not be given a free
hand to be acted upon by giving any undue benefit or unjust enrichment to
the propounders, the plaintiffs Kaka Singh and Baldev Singh, on the
sacrificial alter of the defendant. Bachan Kaur was reeling under mortgage
and continued to be so carrying onerous burdens. From a reading of the
remaining terms and conditions of the agreement which defendant Bachan
Kaur signed for would appear to possess similar features as are indicative of
a mortgage deed still in action. Even by the preponderance of probabilities
and on reading the five terms and conditions of the agreement Ex.PW-10/A
they do not even seem to me to read like a sale agreement or contract
between two parties for transfer of property. An agreement to sell which
prescribes the date of execution retrospectively is not enforceable being a
vague contract for grant of discretionary relief under the Specific Relief Act,
1963 as that would dislodge any target date set for registration of sale deed
and leave the entire deal in a confounded mess. This is back to the future
syndrome. The drafters of the Contract Act knew the pitfalls of slippery fish
in muddy waters of contracts had the foresight to enact the provisions of
section 29 of the Act to ensure that whenever bargains were struck the
contractual terms should be sufficiently certain, and not too vague or too
ambiguous, to be legally enforceable. The test lies is in the language used, if
one or the other terms conflict with each other as to lend uncertainty on the
contract read as a whole integrated document in the overarching intention
of the parties expressed in language and the res gestae which led to formal
writing, and with all these issues examined from the point of view of a
“reasonable person”.
23. There is still another aspect of the matter in order to balance the
equities in a case of grant of discretionary relief, and that is, as to which of
the parties was in a dominating position and which was the weak side so
that neither takes advantage of the other. Even slight but irreconcilable
ambiguities surfacing in the subsequent agreement of alleged sale, which
has material bearing on the text and context of the contract, should
ordinarily tilt the balance of probabilities in favour of the weaker party
reeling under the yoke, as in this case, from the burdens of a pre-existing
mortgage. The principle of contra proferentem can to some extent well be
applied to this case which means “against the offeror.” It refers to a standard
in contract law which states that if a clause in a contract appears to be
ambiguous, it should be interpreted against the interests of the person who
insisted that the clause be included. The ostensible sale agreement arose out
of the prior mortgage deed. The terms of the former suffer from an active
degree of uncertainty and are not capable of any fixed notion on the
evidence as the agreement presently stands formalized when nothing can be
read into it to create certainty or be capable of being made certain.
cannot be read in isolation but has to be read with the mortgage deeds on
record duly exhibited and entered in the revenue record. Therefore the
plaintiffs cannot be divested of possession as they are sitting mortgagees on
the land from whom additional amounts have been received as sale
consideration.
22. The question to be answered really is not what the scribe over did
but what the parties intended to do. When a serious doubt is cast on the
agreement to sell, then prudence demands that it should not be given a free
hand to be acted upon by giving any undue benefit or unjust enrichment to
the propounders, the plaintiffs Kaka Singh and Baldev Singh, on the
sacrificial alter of the defendant. Bachan Kaur was reeling under mortgage
and continued to be so carrying onerous burdens. From a reading of the
remaining terms and conditions of the agreement which defendant Bachan
Kaur signed for would appear to possess similar features as are indicative of
a mortgage deed still in action. Even by the preponderance of probabilities
and on reading the five terms and conditions of the agreement Ex.PW-10/A
they do not even seem to me to read like a sale agreement or contract
between two parties for transfer of property. An agreement to sell which
prescribes the date of execution retrospectively is not enforceable being a
vague contract for grant of discretionary relief under the Specific Relief Act,
1963 as that would dislodge any target date set for registration of sale deed
and leave the entire deal in a confounded mess. This is back to the future
syndrome. The drafters of the Contract Act knew the pitfalls of slippery fish
in muddy waters of contracts had the foresight to enact the provisions of
section 29 of the Act to ensure that whenever bargains were struck the
contractual terms should be sufficiently certain, and not too vague or too
ambiguous, to be legally enforceable. The test lies is in the language used, if
one or the other terms conflict with each other as to lend uncertainty on the
contract read as a whole integrated document in the overarching intention
of the parties expressed in language and the res gestae which led to formal
writing, and with all these issues examined from the point of view of a
“reasonable person”.
23. There is still another aspect of the matter in order to balance the
equities in a case of grant of discretionary relief, and that is, as to which of
the parties was in a dominating position and which was the weak side so
that neither takes advantage of the other. Even slight but irreconcilable
ambiguities surfacing in the subsequent agreement of alleged sale, which
has material bearing on the text and context of the contract, should
ordinarily tilt the balance of probabilities in favour of the weaker party
reeling under the yoke, as in this case, from the burdens of a pre-existing
mortgage. The principle of contra proferentem can to some extent well be
applied to this case which means “against the offeror.” It refers to a standard
in contract law which states that if a clause in a contract appears to be
ambiguous, it should be interpreted against the interests of the person who
insisted that the clause be included. The ostensible sale agreement arose out
of the prior mortgage deed. The terms of the former suffer from an active
degree of uncertainty and are not capable of any fixed notion on the
evidence as the agreement presently stands formalized when nothing can be
read into it to create certainty or be capable of being made certain.
24. It is said; and to be forgiven some digression in the discussion but
not without value, that “Redemption is purely a creature of courts of
equity”: cf. Posten v. Miller, 19 N.W. 540. It is a principle of fairness and
against undue advantage. It is nothing more than the creditor's interest in the
property under mortgage which can be quantified by deducting the creditor's
interest from the value of the security. In U. Nilan v. Kannayyan (Dead)
Through LRs.; AIR 1999 SC 3750, the Supreme Court explained the
philosophy behind the doctrine. It was observed that –
“Adversity of a person is not a boon for others. If a person in
stringent financial conditions had taken the loan and placed
his properties as security therefor, the situation cannot be
exploited by the person who had advanced the loan. The
Court seeks to protect the person affected by adverse
circumstances from being a victim of exploitation. It is this
philosophy which is followed by the Court in allowing that
person to redeem his properties by making the deposit under
Order 34 Rule 5 C.P.C.”
25. In Stanley v. Wilde, (1899) 2 Ch 474 Lindley M.R. gave one of
the founding explanations of the basis of the doctrine of redemption of
mortgage:
“The principle is this: a mortgage is a conveyance of land or
an assignment of chattels as a security for the payment of a
debt or the discharge of some other obligation for which it is
given. This is the idea of a mortgage: and the security is
redeemable on the payment or discharge of such debt or
obligation, any provision to the contrary notwithstanding.
That, in my opinion, is the law. Any provision inserted to
prevent redemption on payment or performance of the debt or
obligation for which the security was given is what is meant by
a clog or fetter on the equity of redemption and is therefore
void. It follows from this, that ‘once a mortgage always a
mortgage’.”
26. The maxim ‘once a mortgage always a mortgage’ means that there
not without value, that “Redemption is purely a creature of courts of
equity”: cf. Posten v. Miller, 19 N.W. 540. It is a principle of fairness and
against undue advantage. It is nothing more than the creditor's interest in the
property under mortgage which can be quantified by deducting the creditor's
interest from the value of the security. In U. Nilan v. Kannayyan (Dead)
Through LRs.; AIR 1999 SC 3750, the Supreme Court explained the
philosophy behind the doctrine. It was observed that –
“Adversity of a person is not a boon for others. If a person in
stringent financial conditions had taken the loan and placed
his properties as security therefor, the situation cannot be
exploited by the person who had advanced the loan. The
Court seeks to protect the person affected by adverse
circumstances from being a victim of exploitation. It is this
philosophy which is followed by the Court in allowing that
person to redeem his properties by making the deposit under
Order 34 Rule 5 C.P.C.”
25. In Stanley v. Wilde, (1899) 2 Ch 474 Lindley M.R. gave one of
the founding explanations of the basis of the doctrine of redemption of
mortgage:
“The principle is this: a mortgage is a conveyance of land or
an assignment of chattels as a security for the payment of a
debt or the discharge of some other obligation for which it is
given. This is the idea of a mortgage: and the security is
redeemable on the payment or discharge of such debt or
obligation, any provision to the contrary notwithstanding.
That, in my opinion, is the law. Any provision inserted to
prevent redemption on payment or performance of the debt or
obligation for which the security was given is what is meant by
a clog or fetter on the equity of redemption and is therefore
void. It follows from this, that ‘once a mortgage always a
mortgage’.”
26. The maxim ‘once a mortgage always a mortgage’ means that there
can no covenant that modifies the character of the mortgage agreed between
the parties that would stop the mortgagor to redeem his property back on
payment of the principal and respective interests., cf G.C.V. Subha Rao,
Law of Transfer of Property Act 1882 (4th ed., 2006). However, the legal
also position appears to be that if there is a separate agreement whereby the
mortgagor executes a sale deed in favour of the mortgagee as an
independent transaction, such sale deed is valid. But in this case the so
called sale agreement is not an independent transaction but is irretrievably
mixed up with the prior mortgage where its terms were continued. And this
is where confusion seeps in to shift the mind against the plaintiffs.
27. In Meharban Khan v. Makhna, AIR 1930 PC 142, the Privy
Council had occasion to deal with a case in which the mortgage agreement
provided that the mortgagee was to be entitled to possession of the property
for 19 years. There was a stipulation that if the mortgagor paid off his debt,
he would be allowed to redeem the property only till a limited interest and
the residual interest would belong to the mortgagor. It was further envisaged
that on failure of the mortgagor to pay, the property would be deemed to be
sold to the mortgagee permanently. The Court ruled that both conditions
amounted to a clog. It was held that on payment of the full amount due, the
property would be reverted back without any encumbrance.
28. To expound the legal proposition adopted as an argument based
on section 29 of the Contract Act, Mr. Markan relies on an authority of this
court in Bhagwan Singh (deceased) represented by Ranjit Singh and
others vs. Nawab Mohammad Iftikhar Ali Khan, Nawab Malerkotla
and others, 1982 PLR 668 where the Bench considered the scope and
applicability of section 29 of the Contract Act with respect to an agreement
to sell and held that a vague and indefinite contract is void and cannot be
specifically enforced. Even oral evidence is not admissible to add to terms
of the contract. This court observed that in a suit for specific performance
the contract of sale must be definite and precise and if it is uncertain it must
be held to be void. This court held that no evidence other than the
agreement can be taken into consideration for determining the exact
location of the land in dispute. In reaching this conclusion, the court relied
on the decision of the Allahabad High Court rendered in Smt. Phuljhari
Devi vs. Mithai Lal and others, AIR 1971 Allahabad 494. The learned
Judge in the Allahabad High Court held that a plea that a particular contract
is void for uncertainty under section 29 of the Contract Act is a pure
question of law which can be raised for the first time at the hearing of
second appeal. Mr. Markan points out from this ruling as one of its ratios
that a contract of sale executed by the husband in regard to land owned by
his wife cannot bind the wife unless it is proved that the husband had the
authority either expressed or implied to act on behalf of his wife. There is
no presumption that the husband has authority to act on behalf of his wife to
sell the property. Implied agency within the meaning of section 187,
Contract Act arises from the conduct or situation of the parties or necessity.
Section 29 of the Indian Contract Act, 1872 reads:-
"Agreements, the meaning of which is not certain, or capable
of being made certain, are void."
29. Therefore, the court of first appeal fell in error in not paying due
regard to the recitals in the agreement and has under-read them and gone
tangentially wrong in erroneous directions to decree the suit on irrelevant
the parties that would stop the mortgagor to redeem his property back on
payment of the principal and respective interests., cf G.C.V. Subha Rao,
Law of Transfer of Property Act 1882 (4th ed., 2006). However, the legal
also position appears to be that if there is a separate agreement whereby the
mortgagor executes a sale deed in favour of the mortgagee as an
independent transaction, such sale deed is valid. But in this case the so
called sale agreement is not an independent transaction but is irretrievably
mixed up with the prior mortgage where its terms were continued. And this
is where confusion seeps in to shift the mind against the plaintiffs.
27. In Meharban Khan v. Makhna, AIR 1930 PC 142, the Privy
Council had occasion to deal with a case in which the mortgage agreement
provided that the mortgagee was to be entitled to possession of the property
for 19 years. There was a stipulation that if the mortgagor paid off his debt,
he would be allowed to redeem the property only till a limited interest and
the residual interest would belong to the mortgagor. It was further envisaged
that on failure of the mortgagor to pay, the property would be deemed to be
sold to the mortgagee permanently. The Court ruled that both conditions
amounted to a clog. It was held that on payment of the full amount due, the
property would be reverted back without any encumbrance.
28. To expound the legal proposition adopted as an argument based
on section 29 of the Contract Act, Mr. Markan relies on an authority of this
court in Bhagwan Singh (deceased) represented by Ranjit Singh and
others vs. Nawab Mohammad Iftikhar Ali Khan, Nawab Malerkotla
and others, 1982 PLR 668 where the Bench considered the scope and
applicability of section 29 of the Contract Act with respect to an agreement
to sell and held that a vague and indefinite contract is void and cannot be
specifically enforced. Even oral evidence is not admissible to add to terms
of the contract. This court observed that in a suit for specific performance
the contract of sale must be definite and precise and if it is uncertain it must
be held to be void. This court held that no evidence other than the
agreement can be taken into consideration for determining the exact
location of the land in dispute. In reaching this conclusion, the court relied
on the decision of the Allahabad High Court rendered in Smt. Phuljhari
Devi vs. Mithai Lal and others, AIR 1971 Allahabad 494. The learned
Judge in the Allahabad High Court held that a plea that a particular contract
is void for uncertainty under section 29 of the Contract Act is a pure
question of law which can be raised for the first time at the hearing of
second appeal. Mr. Markan points out from this ruling as one of its ratios
that a contract of sale executed by the husband in regard to land owned by
his wife cannot bind the wife unless it is proved that the husband had the
authority either expressed or implied to act on behalf of his wife. There is
no presumption that the husband has authority to act on behalf of his wife to
sell the property. Implied agency within the meaning of section 187,
Contract Act arises from the conduct or situation of the parties or necessity.
Section 29 of the Indian Contract Act, 1872 reads:-
"Agreements, the meaning of which is not certain, or capable
of being made certain, are void."
29. Therefore, the court of first appeal fell in error in not paying due
regard to the recitals in the agreement and has under-read them and gone
tangentially wrong in erroneous directions to decree the suit on irrelevant
reasoning.
30. I am afraid that even though the learned trial court may have
overstepped here and there in his observances but by and large he remained
fixedly moving in the right direction that the suit was unworthy of decree in
the equitable and discretionary jurisdiction exercised by it under the
Specific Relief Act, 1963 where one reason or the other may dissuade a
court in granting relief. No elaborate arguments are required to choose
judicially which way to go on reading and appreciating the sale agreement
Ex.PW-10/A and what it manifestly meant and intended.
31. On the other hand, Mr. Sanjay Majithia, learned senior counsel
submits that the prospective vendees/respondents are mortgagees in
possession of the land in dispute and they made the cut off date before
which sale deed should be registered as they were in receipt of full sale
price, it is thus urged that the agreement to sell is not void for uncertainty.
Bachan Kaur or her predecessor has received the price of the land which
fact is duly corroborated by executed documents and the evidence of
mutation entry in revenue record. He relies inter alia on Ex.PW-11/A which
is the Jamabandi for the year 1978-79 which bears an entry recognizing
mortgage of land for Rs.45,000/- by Harbhajan Singh and Gurmel Singh in
favour of plaintiffs, the present respondents. He did sign Ex.PW-12/A
which is an entry in the deed writer's register wherein it is entered that as on
December 28, 1978 a sum of Rs.51,500/- was received on behalf of the
plaintiffs i.e. Rs.45000/- + Rs.6500/-. Ex.PW-12/A is an entry of the deed
writer to the effect that Bachan Kaur had additionally received Rs.16,000/-
from the plaintiffs. There is no doubt that the mortgage amount was
30. I am afraid that even though the learned trial court may have
overstepped here and there in his observances but by and large he remained
fixedly moving in the right direction that the suit was unworthy of decree in
the equitable and discretionary jurisdiction exercised by it under the
Specific Relief Act, 1963 where one reason or the other may dissuade a
court in granting relief. No elaborate arguments are required to choose
judicially which way to go on reading and appreciating the sale agreement
Ex.PW-10/A and what it manifestly meant and intended.
31. On the other hand, Mr. Sanjay Majithia, learned senior counsel
submits that the prospective vendees/respondents are mortgagees in
possession of the land in dispute and they made the cut off date before
which sale deed should be registered as they were in receipt of full sale
price, it is thus urged that the agreement to sell is not void for uncertainty.
Bachan Kaur or her predecessor has received the price of the land which
fact is duly corroborated by executed documents and the evidence of
mutation entry in revenue record. He relies inter alia on Ex.PW-11/A which
is the Jamabandi for the year 1978-79 which bears an entry recognizing
mortgage of land for Rs.45,000/- by Harbhajan Singh and Gurmel Singh in
favour of plaintiffs, the present respondents. He did sign Ex.PW-12/A
which is an entry in the deed writer's register wherein it is entered that as on
December 28, 1978 a sum of Rs.51,500/- was received on behalf of the
plaintiffs i.e. Rs.45000/- + Rs.6500/-. Ex.PW-12/A is an entry of the deed
writer to the effect that Bachan Kaur had additionally received Rs.16,000/-
from the plaintiffs. There is no doubt that the mortgage amount was
Rs.51,500/- and the proposed sale was by adjusting the mortgage amount as
Bachan Kaur was unable to pay the mortgage money or to redeem the
mortgage and that may be very good but still Mr. Majithia had nothing
constructive to offer on Mr. Markan's argument based on section 29 of the
Contract Act.
32. In order to press his case to distinguish it from vice of vagueness,
Mr. Majithia recited from a selection of five judgments. He submits that in
all events vagueness will not lead a fortiori to declaration of voidness of
contract. In case 1 cited; M/s. Dhanrajamal Gobindram vs. M/s. Shamji
Kalidas and Co., AIR 1961 Supreme Court 1285 the Supreme Court dealt
with a case arising out of arbitration, contract law and the Foreign Exchange
Regulation Act, 1973. One of the parties invoked section 29 of the Contract
Act pleading that contract was vague and void for uncertainty. The facts
were: "Under Cl.6 of an agreement the buyers were to obtain the import
licence and to communicate the number thereof to the sellers not later than
February 20, 1958, and in the event of their failure to do so for any reason
whatsoever, the sellers were entitled "at their discretion" either to carry over
the goods or to ask the buyers to pay for the contracted goods and take
delivery in British East Africa. By a subsequent letter, the sellers confirmed
that "if necessary" they would carry over the contracted goods for two
months, namely, March and April, subject to payment of charges. It was
contended that the words "if necessary" were entirely vague and did not
show, necessarily for whom, when and why. The Court held that the
argument built on vagueness had no force whatsoever. By the letter the
sellers said that, if necessary, that is to say, if the buyers found it difficult to
Bachan Kaur was unable to pay the mortgage money or to redeem the
mortgage and that may be very good but still Mr. Majithia had nothing
constructive to offer on Mr. Markan's argument based on section 29 of the
Contract Act.
32. In order to press his case to distinguish it from vice of vagueness,
Mr. Majithia recited from a selection of five judgments. He submits that in
all events vagueness will not lead a fortiori to declaration of voidness of
contract. In case 1 cited; M/s. Dhanrajamal Gobindram vs. M/s. Shamji
Kalidas and Co., AIR 1961 Supreme Court 1285 the Supreme Court dealt
with a case arising out of arbitration, contract law and the Foreign Exchange
Regulation Act, 1973. One of the parties invoked section 29 of the Contract
Act pleading that contract was vague and void for uncertainty. The facts
were: "Under Cl.6 of an agreement the buyers were to obtain the import
licence and to communicate the number thereof to the sellers not later than
February 20, 1958, and in the event of their failure to do so for any reason
whatsoever, the sellers were entitled "at their discretion" either to carry over
the goods or to ask the buyers to pay for the contracted goods and take
delivery in British East Africa. By a subsequent letter, the sellers confirmed
that "if necessary" they would carry over the contracted goods for two
months, namely, March and April, subject to payment of charges. It was
contended that the words "if necessary" were entirely vague and did not
show, necessarily for whom, when and why. The Court held that the
argument built on vagueness had no force whatsoever. By the letter the
sellers said that, if necessary, that is to say, if the buyers found it difficult to
supply the number of the import licence, the contract would be carried over
to March and April. By this amendment, the sellers surrendered to a certain
extent their absolute discretion. The clause meant that the contract was not
extended to March and April, but that the sellers would extend it to that
period, if occasion demanded. Since both the parties agreed to this letter and
the buyers confirmed it, it could not be said that there was no consensus ad
idem, or that the whole agreement was void for uncertainty."
33. When parties had themselves agreed to the change brought about
ad idem then there was no question of vagueness in the words "if
necessary". I fail to see how this case is of any help to the respondents and
is clearly distinguishable on facts and the legal proposition arising out of its
own facts.
34. Mr. Majithia would then rely on case 2; Gomathinayagam Pillai
and others vs. Palaniswami Nadar, AIR 1967 Supreme Court 868 to
contend that since time was not of essence then delay alone would not
disentitle plaintiff to a decree and it cannot be said that plaintiff was never
ready and willing to perform his part of the contract when time was not of
the essence. I also fail to see that how this case helps Mr. Majithia in the
matter of discretionary relief.
35. In order to show the time was not the essence of the contract when
agreement implied the words prior to the target date then the contract had to
be performed within reasonable time and what is reasonable time is always a
question of fact and not one of law, strictly speaking. For this proposition,
Mr. Majithia relies on para.11 of case 3; Firm Bachhraj Amolakchand
and another vs. Firm Nandlal Sitaram and others, AIR 1966 Madhya
to March and April. By this amendment, the sellers surrendered to a certain
extent their absolute discretion. The clause meant that the contract was not
extended to March and April, but that the sellers would extend it to that
period, if occasion demanded. Since both the parties agreed to this letter and
the buyers confirmed it, it could not be said that there was no consensus ad
idem, or that the whole agreement was void for uncertainty."
33. When parties had themselves agreed to the change brought about
ad idem then there was no question of vagueness in the words "if
necessary". I fail to see how this case is of any help to the respondents and
is clearly distinguishable on facts and the legal proposition arising out of its
own facts.
34. Mr. Majithia would then rely on case 2; Gomathinayagam Pillai
and others vs. Palaniswami Nadar, AIR 1967 Supreme Court 868 to
contend that since time was not of essence then delay alone would not
disentitle plaintiff to a decree and it cannot be said that plaintiff was never
ready and willing to perform his part of the contract when time was not of
the essence. I also fail to see that how this case helps Mr. Majithia in the
matter of discretionary relief.
35. In order to show the time was not the essence of the contract when
agreement implied the words prior to the target date then the contract had to
be performed within reasonable time and what is reasonable time is always a
question of fact and not one of law, strictly speaking. For this proposition,
Mr. Majithia relies on para.11 of case 3; Firm Bachhraj Amolakchand
and another vs. Firm Nandlal Sitaram and others, AIR 1966 Madhya
Pradesh 145 (Vol.53, C. 34) a decision rendered by the Division Bench of
Madhya Pradesh High Court. In raising the argument Mr. Majithia fails to
see that the target date was two and a half month before the date of
execution of the agreement Ex.PW-10/A. What could be vaguer than this, I
fail to see. The blame could not be fastened on the scribe alone or the
fatalistic principle that such things do happen or that if a thing can go
wrong, it will.
36. On vagueness and uncertainty, Mr. Majithia also relies on
Division Bench decision in case 4; M/s. Uttam Singh Dugal and Co. Pvt.
Ltd., New Delhi vs. M/s. Hindustan Steel Ltd., Bhilai Steel Project,
Bhilai, AIR 1982 Madhya Pradesh 206 which delineates the principles to be
applied as a ground for declaring a contract void. The principle culled out is
that when contracts have been acted upon by the parties then court should
be very slow in finding defects in such contracts. The case arose out of the
Arbitration Act, 1940. The Court observed:-
"Solemn contracts entered into between the parties are not to
be readily declared invalid for uncertainty as to certain terms,
at any rate in those cases where the parties have acted upon
the contracts which have been fully executed. In construing a
contract the object of the Court is to do justice between the
parties and the Court will do its best, if satisfied that there was
an ascertainable and determinate intention to contract, to give
effect to that intention, looking at substance and not mere
form. It will not be deterred by mere difficulties of
interpretation. Difficulty is not synonymous with ambiguity so
long as any definite meaning can be extracted. A contract can
become void under Section 29 only when its terms cannot be
made certain. Mere vagueness or uncertainty which can be
removed by proper interpretation cannot make a contract
void. In dealing with commercial and business contracts which
have been acted upon by the parties, the Court should be very
Madhya Pradesh High Court. In raising the argument Mr. Majithia fails to
see that the target date was two and a half month before the date of
execution of the agreement Ex.PW-10/A. What could be vaguer than this, I
fail to see. The blame could not be fastened on the scribe alone or the
fatalistic principle that such things do happen or that if a thing can go
wrong, it will.
36. On vagueness and uncertainty, Mr. Majithia also relies on
Division Bench decision in case 4; M/s. Uttam Singh Dugal and Co. Pvt.
Ltd., New Delhi vs. M/s. Hindustan Steel Ltd., Bhilai Steel Project,
Bhilai, AIR 1982 Madhya Pradesh 206 which delineates the principles to be
applied as a ground for declaring a contract void. The principle culled out is
that when contracts have been acted upon by the parties then court should
be very slow in finding defects in such contracts. The case arose out of the
Arbitration Act, 1940. The Court observed:-
"Solemn contracts entered into between the parties are not to
be readily declared invalid for uncertainty as to certain terms,
at any rate in those cases where the parties have acted upon
the contracts which have been fully executed. In construing a
contract the object of the Court is to do justice between the
parties and the Court will do its best, if satisfied that there was
an ascertainable and determinate intention to contract, to give
effect to that intention, looking at substance and not mere
form. It will not be deterred by mere difficulties of
interpretation. Difficulty is not synonymous with ambiguity so
long as any definite meaning can be extracted. A contract can
become void under Section 29 only when its terms cannot be
made certain. Mere vagueness or uncertainty which can be
removed by proper interpretation cannot make a contract
void. In dealing with commercial and business contracts which
have been acted upon by the parties, the Court should be very
slow in finding defects and to reject them as meaningless. This
should be done only in extreme cases.
The instant case is a case of civil engineering contract. There
was a clause in the general conditions of Contracts which
envisaged that the contractors will comply with all legislations
governing labour that may he passed from time to time
including laws relating to fair wages, welfare measures, safety
etc. While submitting the tender the contractors in their letter
said that if there was any increase in the wage structure, they
will be entitled to "corresponding amount". It was agreed
between the parties in a meeting that the contractors shall be
entitled to increased payment in case of increase of minimum
wage rates of unskilled worker only and that the increased
payment will be applied to the percentage of labour content in
each item of work which the contractors would give for
scrutiny and approval of the employers. At regards other laws,
the parties differed on the point as to what was agreed in the
meeting between the parties. According to the contractors, the
minutes were correctly recorded to the effect that "any other
change in the labour laws will be admitted for escalation".
The point of view of the employers was that the word "any"
was a mistake for the word "no" and; that it was agreed that
"no other changes in the labour laws will be admitted for
escalation". The difference on this point, however, did not
mean that the contract did not come into existence or that
there was such ambiguity of uncertainty which made the
contract void. The result was that the relevant clause as
contained in the General Conditions of Contracts prevailed
subject to the variation agreed upon in respect of the increase
in rates of minimum wages under the Minimum Wages Act. It
could not therefore, he said that the contract documents read
as a whole did not make the position certain as regards
changes in other labour laws." (underlined for emphasis)
37. Compulsions of law [labour legislation as in Uttam Singh Dugal
case] are omnipresent and may have to be read into commercial and
business contracts on their own strength otherwise it may lead to
impermissible avoidance of statutory law, which could never have been
should be done only in extreme cases.
The instant case is a case of civil engineering contract. There
was a clause in the general conditions of Contracts which
envisaged that the contractors will comply with all legislations
governing labour that may he passed from time to time
including laws relating to fair wages, welfare measures, safety
etc. While submitting the tender the contractors in their letter
said that if there was any increase in the wage structure, they
will be entitled to "corresponding amount". It was agreed
between the parties in a meeting that the contractors shall be
entitled to increased payment in case of increase of minimum
wage rates of unskilled worker only and that the increased
payment will be applied to the percentage of labour content in
each item of work which the contractors would give for
scrutiny and approval of the employers. At regards other laws,
the parties differed on the point as to what was agreed in the
meeting between the parties. According to the contractors, the
minutes were correctly recorded to the effect that "any other
change in the labour laws will be admitted for escalation".
The point of view of the employers was that the word "any"
was a mistake for the word "no" and; that it was agreed that
"no other changes in the labour laws will be admitted for
escalation". The difference on this point, however, did not
mean that the contract did not come into existence or that
there was such ambiguity of uncertainty which made the
contract void. The result was that the relevant clause as
contained in the General Conditions of Contracts prevailed
subject to the variation agreed upon in respect of the increase
in rates of minimum wages under the Minimum Wages Act. It
could not therefore, he said that the contract documents read
as a whole did not make the position certain as regards
changes in other labour laws." (underlined for emphasis)
37. Compulsions of law [labour legislation as in Uttam Singh Dugal
case] are omnipresent and may have to be read into commercial and
business contracts on their own strength otherwise it may lead to
impermissible avoidance of statutory law, which could never have been
intended by the parties or even to contract out of the law.
38. Lastly, the learned senior counsel relies on case 5; a single bench
decision again of the Madhya Pradesh High Court (Gwalior Bench) in
Mithu Kan vs. Ms. Pipariyawali and others, AIR 1986 Madhya Pradesh
39. This was a case where no date was fixed for performance of contract.
The agreement was said to be a loosely worded document. The court held
that the principle in the maxim "certum est quod certum reddi potest" that if
a thing is capable of being ascertained, it is treated as certain, cannot be
invoked. The suit was filed within four months from knowledge of sale of
property covered by the agreement of sale would attract principles of article
54 of the Limitation Act and the suit was held to be within limitation. The
court also held with reference to section 16(c) of the Specific Relief Act,
1963 that averments as to readiness and willingness to perform his part of
the contract, the plaintiff having paid full amount and having received the
last payment then the necessary allegations have to be presumed and the
literal compliance of language of the provision is not imperative nor is it the
requirement of the law. The court observed in para.9 as follows:-
"The plaintiff, after he paid the full amount to respondent and
obtained from him the receipt of the last payment, completes
his part of the contract. The proof as to readiness and
willingness by plaintiff to perform his part of the contract has
to be adjudged in the broad perspective. The Court in suitable
cases should look into the totality of the circumstances and the
allegations made in the plaint and from them come to the
conclusion whether necessary allegations have been made by
the plaintiff in that regard or not. No particular language or
phraseology is needed to be employed by the plaintiff. A literal
compliance of the language appearing in the provision is not
imperative, nor is this the requirement of law (see in case of
Ramesh Chandra vs. Chunnilal, AIR 1971 SC 1238)."
38. Lastly, the learned senior counsel relies on case 5; a single bench
decision again of the Madhya Pradesh High Court (Gwalior Bench) in
Mithu Kan vs. Ms. Pipariyawali and others, AIR 1986 Madhya Pradesh
39. This was a case where no date was fixed for performance of contract.
The agreement was said to be a loosely worded document. The court held
that the principle in the maxim "certum est quod certum reddi potest" that if
a thing is capable of being ascertained, it is treated as certain, cannot be
invoked. The suit was filed within four months from knowledge of sale of
property covered by the agreement of sale would attract principles of article
54 of the Limitation Act and the suit was held to be within limitation. The
court also held with reference to section 16(c) of the Specific Relief Act,
1963 that averments as to readiness and willingness to perform his part of
the contract, the plaintiff having paid full amount and having received the
last payment then the necessary allegations have to be presumed and the
literal compliance of language of the provision is not imperative nor is it the
requirement of the law. The court observed in para.9 as follows:-
"The plaintiff, after he paid the full amount to respondent and
obtained from him the receipt of the last payment, completes
his part of the contract. The proof as to readiness and
willingness by plaintiff to perform his part of the contract has
to be adjudged in the broad perspective. The Court in suitable
cases should look into the totality of the circumstances and the
allegations made in the plaint and from them come to the
conclusion whether necessary allegations have been made by
the plaintiff in that regard or not. No particular language or
phraseology is needed to be employed by the plaintiff. A literal
compliance of the language appearing in the provision is not
imperative, nor is this the requirement of law (see in case of
Ramesh Chandra vs. Chunnilal, AIR 1971 SC 1238)."
39. On a reading of the case law cited by Mr. Majithia, one is still left
facing a document which does not meet the tests of an intention to sell
immovable property as the agreement extends the principle of mortgage in
recital 3, apart from other glaring discrepancies as to dates of performance.
If there was an offer from Bachan Kaur for whatever it may be worth there
is no clear and categorical intention expressed in the alleged agreements to
sell that they were intended to act as a binding contract of sale and I would
thus lean in favour of Mr. Markan's submission that what is vague to the
degree experienced in the exhibited document cannot be fleshed out by
imaginative accretions or flights of fancy. The discretionary relief of
specific performance should not be decreed on a plank of the suit exhibits
and, therefore, this court is of the considered opinion that the agreements
fall within the vice and purview of section 29 of the Contract Act, 1872 and
accordingly the substantial question is answered by holding that the
agreements suffer from vagueness and are not enforceable in law by reading
and giving effect to section 29 of the Contract Act with the principles in the
Specific Relief Act, 1963 and, therefore, defendant # 1 was within her rights
to avoid performance. Even assuming that the documents had Bachan
Kaur's thumb impressions, which she had stoutly disputed in the trial as one
on a agreement to sell, even then on refutation of the agreement as ad idem I
tend to think that onus had shifted to the plaintiffs to prove them as
governing the intention of the parties which they failed to meet the
standards of by production of dependable evidence coming from any other
source in the trial court record. The more I ponder the more strongly I feel
this case is not fit for award of specific performance of the property in
facing a document which does not meet the tests of an intention to sell
immovable property as the agreement extends the principle of mortgage in
recital 3, apart from other glaring discrepancies as to dates of performance.
If there was an offer from Bachan Kaur for whatever it may be worth there
is no clear and categorical intention expressed in the alleged agreements to
sell that they were intended to act as a binding contract of sale and I would
thus lean in favour of Mr. Markan's submission that what is vague to the
degree experienced in the exhibited document cannot be fleshed out by
imaginative accretions or flights of fancy. The discretionary relief of
specific performance should not be decreed on a plank of the suit exhibits
and, therefore, this court is of the considered opinion that the agreements
fall within the vice and purview of section 29 of the Contract Act, 1872 and
accordingly the substantial question is answered by holding that the
agreements suffer from vagueness and are not enforceable in law by reading
and giving effect to section 29 of the Contract Act with the principles in the
Specific Relief Act, 1963 and, therefore, defendant # 1 was within her rights
to avoid performance. Even assuming that the documents had Bachan
Kaur's thumb impressions, which she had stoutly disputed in the trial as one
on a agreement to sell, even then on refutation of the agreement as ad idem I
tend to think that onus had shifted to the plaintiffs to prove them as
governing the intention of the parties which they failed to meet the
standards of by production of dependable evidence coming from any other
source in the trial court record. The more I ponder the more strongly I feel
this case is not fit for award of specific performance of the property in
dispute.
40. For the many reasons recorded above, it is held that the sale
agreement is hit by section 29 of the Contract Act for being vague,
ambiguous and uncertain. It was never intended by mortgagor to sell her
property to the mortgagee and was an extension of the mortgage deed in
existence prior thereto. It matters little if the term "agreement to sell" or
"sale deed" in incorporated in the Exhibited document. The sale agreement
is dated "2.6.1980" while the date of registration of sale deed was fixed as
"13.3.1980". What can any person of reasonable intelligence make of this?
Parties could not go back in time to execute the sale deed when the date of
execution was prior to the date of the agreement. Plaintiffs did not put the
defendant to notice of change by extension of the period of execution of
sale deed by a separate contract or a corrigendum signed by mutual consent
to go to office of the Sub Registrar for registration of the conveyance deed.
The lacuna was fatal enough and tended to remove the base of a suit for
specific performance which depends by the nature of things on future target
dates agreed upon and compliances made to fructify a contract into a sale
deed or a decree for execution of an agreement when defendant defaulted in
performance of his part of the contract or within reasonable time of it where
time is not the essence of the contract. The relief in any case is discretionary
and an order will not be passed only because it is lawful to do so. Besides,
the overarching principle against clogs in redemption found in section 60 of
the Transfer of Property Act, 1882 which contains the exception "Provided
that the right conferred by this section has not been extinguished by act of
the parties" but the proviso did not apply when ambiguity did not dictate an
40. For the many reasons recorded above, it is held that the sale
agreement is hit by section 29 of the Contract Act for being vague,
ambiguous and uncertain. It was never intended by mortgagor to sell her
property to the mortgagee and was an extension of the mortgage deed in
existence prior thereto. It matters little if the term "agreement to sell" or
"sale deed" in incorporated in the Exhibited document. The sale agreement
is dated "2.6.1980" while the date of registration of sale deed was fixed as
"13.3.1980". What can any person of reasonable intelligence make of this?
Parties could not go back in time to execute the sale deed when the date of
execution was prior to the date of the agreement. Plaintiffs did not put the
defendant to notice of change by extension of the period of execution of
sale deed by a separate contract or a corrigendum signed by mutual consent
to go to office of the Sub Registrar for registration of the conveyance deed.
The lacuna was fatal enough and tended to remove the base of a suit for
specific performance which depends by the nature of things on future target
dates agreed upon and compliances made to fructify a contract into a sale
deed or a decree for execution of an agreement when defendant defaulted in
performance of his part of the contract or within reasonable time of it where
time is not the essence of the contract. The relief in any case is discretionary
and an order will not be passed only because it is lawful to do so. Besides,
the overarching principle against clogs in redemption found in section 60 of
the Transfer of Property Act, 1882 which contains the exception "Provided
that the right conferred by this section has not been extinguished by act of
the parties" but the proviso did not apply when ambiguity did not dictate an
extinguishment of a right to redemption by any of the material acts of the
original defendant in relation to the plaintiffs. On a comprehensive reading
between the lines of the agreement dated June 2, 1980 in the context of the
existing relationship of mortgagor and mortgagee between the parties and
for the variety of reasons recorded above I am unable to persuade myself to
commend the view that the right of redemption was "extinguished" by act of
parties irrevocably in the face inter alia of the brooding presence of
condition # 3 in the agreement. In any case the suit document was one sided
and not ad idem and thumb impressions of the plaintiff on the document are
not sufficient to conclude a contract based on consent of both the parties
that it should be treated as an intention to transfer property. Still murkier is
the condition lurking at the end of the deed which recites: "Hen ce, this sale
deed ha s been got scribed so that it may serve as an authority at the time of
need". If the document pretended to act in replacement of a sale deed or a
“need” [to do what?]it was not registered and then what was the legal basis
of effecting mutation of the suit property in the name of the plaintiffs when
property had not been legally passed on, is not clearly discernible amongst
the evidence oral and documentary on record when read as a whole. In any
event a revenue entry in the mutation confers no title rights. Only a
cumulative understanding of the totality of the facts and circumstances
presented can resolve the controversy logically and holistically and in this
pursuit allowance must rest finally in the court of second instance as the
final court on law and fact and for this Court to act in support of the
appellate decree even if it does so ex aequo et bono, that is, for a decision
based on what is fair and just. It is towards this salutary end the above
original defendant in relation to the plaintiffs. On a comprehensive reading
between the lines of the agreement dated June 2, 1980 in the context of the
existing relationship of mortgagor and mortgagee between the parties and
for the variety of reasons recorded above I am unable to persuade myself to
commend the view that the right of redemption was "extinguished" by act of
parties irrevocably in the face inter alia of the brooding presence of
condition # 3 in the agreement. In any case the suit document was one sided
and not ad idem and thumb impressions of the plaintiff on the document are
not sufficient to conclude a contract based on consent of both the parties
that it should be treated as an intention to transfer property. Still murkier is
the condition lurking at the end of the deed which recites: "Hen ce, this sale
deed ha s been got scribed so that it may serve as an authority at the time of
need". If the document pretended to act in replacement of a sale deed or a
“need” [to do what?]it was not registered and then what was the legal basis
of effecting mutation of the suit property in the name of the plaintiffs when
property had not been legally passed on, is not clearly discernible amongst
the evidence oral and documentary on record when read as a whole. In any
event a revenue entry in the mutation confers no title rights. Only a
cumulative understanding of the totality of the facts and circumstances
presented can resolve the controversy logically and holistically and in this
pursuit allowance must rest finally in the court of second instance as the
final court on law and fact and for this Court to act in support of the
appellate decree even if it does so ex aequo et bono, that is, for a decision
based on what is fair and just. It is towards this salutary end the above
discussion proceeds to a culmination.
41. For the variety of reasons recorded above, the appeal is accepted,
the appellate decree is set aside as not legally sustainable and that of the
trial court is restored being a just and proper adjudication of the dispute.
The suit for possession by way of specific performance is dismissed with
costs in all the courts. Refund adjustments, if any, would remain open to
redemption proceedings, if and when taken. Decree sheet be drawn
accordingly. Pending applications, if any, stand disposed of. The lower
court records be returned. The file be consigned to the record room.
(RAJIV NARAIN RAINA)
JUDGE
15.05.2015
41. For the variety of reasons recorded above, the appeal is accepted,
the appellate decree is set aside as not legally sustainable and that of the
trial court is restored being a just and proper adjudication of the dispute.
The suit for possession by way of specific performance is dismissed with
costs in all the courts. Refund adjustments, if any, would remain open to
redemption proceedings, if and when taken. Decree sheet be drawn
accordingly. Pending applications, if any, stand disposed of. The lower
court records be returned. The file be consigned to the record room.
(RAJIV NARAIN RAINA)
JUDGE
15.05.2015
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