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Raminder Singh And Another v. Sham Lal And Another
Factual and Procedural Background
This is a second appeal by defendants Nos. 2 and 3 against the judgment and decree of the District Judge, Chandigarh dated 19th May, 1975.
The material facts set out in the opinion are:
- Mehar Singh (defendant No.1) owned two houses in Mani Maira, mortgaged to Jagir Singh (defendant No.3) for Rs. 3,000.
- Mehar Singh entered into an agreement to sell the houses to Raminder Singh (defendant No.2) dated 27th December, 1970 (Exhibit D-1).
- Subsequently, Mehar Singh entered into an agreement to sell the same houses to the plaintiff on 3rd January, 1971 for Rs. 4,800 (Exhibit P-7); the plaintiff paid Rs. 300 by way of advance, with Rs. 3,000 to be paid to the mortgagee and Rs. 1,500 to defendant No.1 at execution of the sale deed, to be executed within one week.
- On 5th January, 1971 the plaintiff had a sale deed executed and presented it to the Sub-Registrar; Jagir Singh objected and the sale deed was not registered.
- Defendant No.2 sued for specific performance of his prior agreement dated 27th December, 1970 on 11th January, 1971 and obtained an ad interim injunction restraining defendant No.1 from selling to the plaintiff; that suit was dismissed on 28th February, 1972 for lack of readiness and willingness by defendant No.2.
- On 28th February, 1972 defendant No.1 executed two fresh sale deeds (Exs. P-1 and P-2) in favour of the plaintiff, which were again not registered upon representation by defendants Nos.2 and 3 who said they intended to appeal; no appeal was filed.
- Defendant No.2 got a sale deed executed in his favour on 4th May, 1972 and had it registered on 24th May, 1972 despite an interim injunction obtained by the plaintiff on 5th May, 1972 in a suit for specific performance filed by the plaintiff on 5th May, 1972.
- The plaintiff amended his plaint to allege that the sale deed registered in breach of the injunction was illegal and void and sought specific performance of his agreement dated 3rd January, 1971.
- The trial Court found for defendant No.2 (holding his prior agreement rendered his subsequent sale valid against the plaintiff) and dismissed the plaintiff’s suit; the Additional District Judge reversed that, holding the prior agreement had been rendered unenforceable by the dismissal of defendant No.2's suit and granted specific performance in favour of the plaintiff; defendants Nos.2 and 3 appealed to this Court.
Legal Issues Presented
- Whether the plaintiff in a suit for specific performance had adequately pleaded and proved that he was always ready and willing to perform his part of the agreement dated 3rd January, 1971.
- Whether a prior agreement in favour of defendant No.2 (dated 27th December, 1970) and the sale executed in pursuance of it can operate to defeat the plaintiff's subsequent agreement dated 3rd January, 1971, particularly after dismissal of defendant No.2's suit for specific performance.
- Whether a sale deed executed and registered in breach of an injunction and during pendency of competing proceedings (and possibly affected by principles of lis pendens) can be declared void as against the plaintiff, or whether other remedies such as contempt or CPC proceedings alone are available.
- Whether the plaintiff was entitled to a decree directing registration/registration assistance (i.e., ordering the sale deed to be registered or directing subsequent transferees to join in conveyance) even if a specific form of prayer was not expressly made in the plaint.
- Whether Section 77 of the Registration Act could be raised as a defence against maintainability of the plaintiff's suit when that plea was not taken in written statement nor argued in lower courts.
Arguments of the Parties
Appellants' (Defendants Nos. 2 & 3) Arguments — as presented by Mr. Bindra
- The plaintiff failed to plead and prove continuous readiness and willingness to perform his part of the agreement for specific performance; hence he was not entitled to decree.
- The sale deed dated 4th May, 1972 executed in favour of defendant No.2 pursuant to the prior agreement dated 27th December, 1970 took priority over the plaintiff's subsequent agreement dated 3rd January, 1971, and accordingly the plaintiff could not obtain specific performance.
- The sale deed executed by defendant No.2 could not be declared void by the Court on account of lis pendens or by virtue of an injunction; at most, the defendants who disobeyed the injunction could be proceeded against under the Code of Civil Procedure or the Contempt of Courts Act, but the sale deed itself should not be declared void.
- A plea under Section 77 of the Registration Act (challenging maintainability) was available, but was not raised earlier — Mr. Bindra sought to raise it in this Court.
- No specific prayer had been made by the plaintiff for the relief of forcing subsequent transferees to join in conveyance, and therefore the plaintiff should not obtain such relief.
Respondent's (Plaintiff / Respondent No.1) Arguments — as presented by Mr. Roop Chand
- Mr. Roop Chand did not contest the appellant's submission about voidability of the sale deed; he submitted that, on the facts, the decree for specific performance be granted against defendants Nos.1 and 2 and that they be directed to execute the sale deed in favour of the plaintiff.
- The plaintiff sought specific performance of the agreement dated 3rd January, 1971 and prayed that the sale deeds dated 28th February, 1972 be registered in his favour (i.e., an effective form of relief to obtain conveyance).
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Gomathinaya Ram Pillai v. Palaniswami Nadar, AIR 1967 SC 868 | The proposition that in a suit for specific performance the plaintiff must plead and prove that he was ready and willing to perform his part of the contract continuously between the date of the contract and the date of hearing. | The Court acknowledged the proposition but found, on reading the plaint and evidence as a whole, that the plaintiff had averred and proved readiness and willingness; therefore the precedent did not bar relief on the facts of the case. |
| Ramasami Pettar v. Chinan Asari, (1901) ILR 24 Mad 449 | The principle that a person who cannot bring a suit to enforce a contract (because his suit was dismissed) cannot be allowed to use that contract as a defence in another's suit. | The Court relied upon this authority to hold that defendant No.2, after dismissal of his suit for specific performance, could not use his prior agreement as a defence to the plaintiff's suit for specific performance. |
| Shiv Dayal Kapoor v. Union of India, AIR 1963 Punjab 538 | Authority for the proposition that a plaintiff should be given the relief he is entitled to on the facts established even if the plaint lacks a specific prayer for that precise relief (relying on Order 7 Rule 7 CPC). | The Court relied upon this decision to hold that even if the plaint did not contain an explicit prayer for a particular form of relief (e.g., directing registration or joining of a subsequent transferee), the Court could grant relief based on the facts proved. |
| Durga Prasad v. Deep Chand, AIR 1954 SC 75 | Guidance on the proper form of decree: direct specific performance between vendor and plaintiff and direct the subsequent transferee to join in the conveyance so as to pass on title which resides in him to the plaintiff. | The Court examined and adopted the Supreme Court's approach to decree formulation, and applied it by directing specific performance and ordering defendant No.2 (the subsequent transferee) to join in executing the conveyance deed. |
| Kafiladdin v. Samiraddin, AIR 1931 Cal 67 | Supportive authority cited (by the Supreme Court in Durga Prasad) for the practice of directing subsequent transferees to join in conveyances. | Referenced as part of the authorities endorsing the form of decree adopted by this Court (directing the subsequent transferee to join in conveyance). |
| Potter v. Sanders, (1846) 67 ER 1057 (D) | English practice authority referenced in connection with the form of decree for specific performance involving a subsequent transferee. | Referenced (via Fry on Specific Performance and the Supreme Court's discussion) to support the form of decree directing the subsequent transferee to join in conveyance; used to justify the decree form ordered by the Court. |
Court's Reasoning and Analysis
The Court considered the parties' contentions sequentially and applied the governing principles and cited authorities to the facts before it:
- On the plaintiff's readiness and willingness: The Court examined the pleadings and evidence and concluded that, although the plea of readiness and willingness was not stated in the most formal or specific terms, the plaint and the plaintiff's conduct (prompt attempt to get the sale deed registered, repeated attendance at the Sub-Registrar, and evidence that the balance amount of Rs. 1,500 would have been paid at registration) demonstrated that the plaintiff had alleged and proved he was always ready and willing to perform. The Court acknowledged the rule in Gomathinaya Ram Pillai v. Palaniswami Nadar but found the factual record satisfied that requirement.
- On the effect of defendant No.2's prior agreement (27th December, 1970): Although recognizing that the prior agreement was valid between defendant No.1 and defendant No.2, the Court held that after dismissal of defendant No.2's suit for specific performance he could not specifically enforce that agreement and therefore could not use it as a defence to the plaintiff's suit. The Court relied upon the principle articulated in Ramasami Pettar v. Chinan Asari to support this view.
- On the contention that a sale deed executed in breach of an injunction or affected by lis pendens could not be declared void: The appellants' counsel argued that disobedience to an injunction should attract remedies under the Civil Procedure Code or the Contempt of Courts Act but should not make the sale deed void. The respondent's counsel did not contest the legal point and instead urged granting the decree. The Court did not rest its decision on a finding that the sale deed was void as a rule of law; rather, the Court proceeded to fashion an effective equitable remedy (see decree form below) after addressing procedural objections.
- On procedural pleas not earlier taken (Section 77, Registration Act): The Court declined to allow the appellants to raise a new plea under Section 77 of the Registration Act in this Court because that plea had not been taken in the written statement nor argued in the trial Court or in the first appeal.
- On the form of relief: The Court considered Supreme Court guidance (Durga Prasad v. Deep Chand) and related authorities regarding the form of decree in cases involving subsequent transferees. It concluded that the appropriate decree was to direct specific performance against defendant No.1 and to direct defendant No.2 (the subsequent transferee) to join in the conveyance so as to pass on the title; the Court relied also on the power under Order 7 Rule 7 Civil P.C. to grant relief appropriate to facts proved even if the plaint did not state the precise form of relief sought.
Holding and Implications
Appeal dismissed.
Direct consequences and orders imposed by the Court (as recorded in the opinion):
- The District Judge's decree in favour of the plaintiff for specific performance of the agreement dated 3rd January, 1971 was modified as follows: the Court ordered specific performance of that agreement in favour of the plaintiff by defendant No.1 on the condition that the plaintiff deposits Rs. 1,500/- in the executing Court within two months.
- Defendant No.2 was directed to join in executing the conveyance deed so as to pass on any title he holds to the plaintiff.
- If the defendants fail to execute the conveyance-deed, the plaintiff is entitled to have the conveyance executed through the Court (i.e., execution by the Court in the usual manner).
- The appellants (defendants Nos.2 and 3) were ordered to pay the costs of the appeal.
- Conversely, if the plaintiff fails to deposit the Rs. 1,500/- within the prescribed two-month period, his suit shall stand dismissed with costs throughout.
Broader implications: The opinion applies existing authorities on readiness and willingness, on inability to use an unenforceable contract as a defense, and on the form of decrees involving subsequent transferees. The Court did not purport to lay down new legal precedent; rather, it applied established principles (as cited) to the facts and fashioned an equitable decree to give the plaintiff effective relief while preserving appropriate procedural safeguards.
This is a second appeal, by defendants; Nos. 2 and 3 against the judgment and decree of the District Judge. Chandigarh, dt. 19th May, 1975.
2. Briefly, the facts are that Mehar Singh defendant No. 1 was the owner of two houses situated in Mani Maira, which were under mortgage with Jagir Singh defendant No. 3 for a sum of Rs. 3.000/-. He entered into an agreement to sell the houses with Raminder Singh defendant No. 2 vide agreement deed dt. 27th December, 1970 (Exhibit D-1). Later, on 3rd January, 1971, he made an agreement for sale of the said houses with the plaintiff for a sum of Rs. 4.800/-. The agreement to sell is Exhibit P. 7. Out of the consideration, an amount of Rs. 300/- was paid by the plaintiff as advance to him. Out of the balance, a sum of Rs. 3.000/- was to be paid by the plaintiff to the mortgagee and Rs. 1500/- to defendant No. 1 at the time of execution of the sale deed which was to be got executed within one week. On 5th January, 1971, a sale deed was executed by defendant No. 1 in his favour on a judicial stamp paper of Rupees 300/- and was presented before the Sub-Registrar. Jagir Singh raised an objection before the Sub-Registrar that defendant No. 1 had agreed to sell the house to him and therefore, the sale deed be not registered. The Sub-Registrar accepted his request and did not register the sale deed.
3. Defendant No. 2. on 11th January, 1971. instituted a suit in the Court of Subordinate Judge IInd Class. Chandigarh, for specfic performance of the agreement of sale dated 27th December, 1970. Exhibit D. 1. and obtained an ad interim injunction against defendant No. 1, restraining him to sell the houses to the plaint ff. Ultimately, the suit was dismissed on 28th February, 1972. on the ground that defendant No. 2 was not ready and willing to perform his part of the agreement. Defendant No. 1, on the same day executed two fresh sale deeds. Exs. P. 1 and P. 2 in favour of the plaintiff and those were presented before the Sub-Registrar for registration. Defendants Nos. 2 and 3 appeared before the Sub-Registrar and represented to him that they wanted to file an apnea] against the decree of the Subordinate Judge, IInd Class and therefore, the sale deeds be not registered for some time. The Sub-Registrar accepted their prayer. However, they did not file any appeal.
4. On 4th May, 1972. defendant No. 2 got a sale deed executed in has favour regarding the houses from defendant No. 1. On 5th May, 1972, Sham Lal filed the present suit for specific performance of the agreement dt. 3rd January, 1971, and obtained an ad interim injunction restraining defendant No. 1 from transferring the houses in favour of defendants Nos. 2 and 3 or any other person till further orders. It appears that at the time of filing the suit, it was not within his knowledge that defendant No. 1 had already executed a sale deed in favour of defendant No. 2. However, in spite of the injunction order, defendant No. 2 got the sale deed registered on 24th May, 1972. Thereafter, the plaintiff amended the plaint and it was pleaded that as the sale deed was executed and registered in spite of the injunction order, it was illegal, void and liable to be cancelled.
5. The suit was contested by defendants Nos. 2 and 3 who inter alia pleaded that there was no agreement to sell dt. 3rd January, 1971. in favour of the plaintiff. They further stated that there was a prior agreement of sale in favour of defendant No. 2 and that defendant No. 1 had sold the house to him in view of that agreement. Consequently, the sale could not be challenged. He further pleaded that the plaintiff was not entitled to specific performance of the agreement dt. 3rd January, 1971. Some other pleas were also taken but they do not survive in the appeal.
6. The trial Court held that there was an agreement of sale by defendant No. 1 in favour of the plaintiff for a sum of Rs. 4,800/- and that defendant No. 2 had a prior agreement from defendant No. 1 in his favour and, therefore, the sale deed dt. 4th May, 1972 executed in his favour n pursuance of that agreement, was valid. It further held that the plaintiff, in view of the aforesaid circumstance, was not entitled to specific performance of the agreement dt. 3rd January, 1971. Consequently, the suit was dismissed. The plaintiff went up in appeal before the Additional District Judge who held that in view of the decree of the Subordinate Judge, IInd Class, dt. 28th February, 1972. dismissing the suit of defendant No. 2 for specific performance, the agreement dt. 27th December, 1970 was unenforceable. He, therefore, came to the conclusion that the sale by defendant No. 1 in favour of defendant No. 2 was invalid. Consequently, he accepted the appeal and granted a decree in favour of the plaintiff for specific performance of the agreement dt. 3rd January, 1971. by registration of the sale deed dt. 28th February, 1972. Defendants Nos. 2 and 3 having felt aggrieved from the judgment of the District Judge have come up in second appeal to this Court.
7. The first contention of Mr. Bindra is that in a suit for specific performance, the plaintiff has to allege and prove that he had always been ready and willing to perform his part of the agreement which was neither pleaded nor proved. According to him, the plaintiff, therefore, was not entitled to a decree for specific performance.
8. I have given due consideration to the argument of the learned counsel but regret my inability to accept the same. In the plaint, all the facts have been narrated, as stated above. Thereafter, it is pleaded that the plaintiff was ready and willing to perform the agreement and the amount of Rs. 1500/- was always available with him and he could make the payment to the defendant at any time. From the facts it is clear that immediately after the execution of the agreement of sale by defendant No. 1 in favour of the plaintiff, a sale deed was got executed bv the plaintiff within two days. It was also presented for registration but on the representation of defendant No. 3 it was not registered by the Sub-Registrar. The balance amount of Rs. 1500/- would have been paid by the plaintiff at the time of registration. Later, an injunction order was obtained by defendant No. 2 in the suit filed by him for specific performance of the agreement dt. 27th December, 1970. Consequently during the pendency of the suit, the sale deed could not be got registered. Immediately after the decision of the suit on 28th February, 1972, two sale deeds, Exs. P-1 and P. 2 were got executed from defendant No. 1 in respect of the houses but again an objection was raised by defendants Nos. 2 and 3 that they wanted to file an appeal and the sale deeds were again not registered by the Sub-Registrar. The fact that the plaintiff went before the Sub-Registrar for getting the document registered shows that he was ready to pay Rs. 1508/- at that time. From all the pleas, it is evident that the plaintiff was alleging that he was always ready and willing to perform his part of the agreement. No doubt, it has not specifically been stated so but it is well-settled that substance of the pleas should be kept in view and pleadings should not be construed very strictly in India. It is also settled that the pleadings should be read as a whole. Therefore, it cannot be held that a plea had not been taken by the plaintiff that he was ready and willing to perform his part of the agreement. Similarly, in his statement, he stated all the above said facts. The inference is that he was always ready and willing to perform his part of the agreement. As stated above, the plaintiff has alleged in the plaint that he is still ready and willing to perform his part of the agreement and he has also made the same statement. Mr. Bindra made a reference to Gomathinaya Ram Pillai v. Palaniswami Nadar, AIR 1967 SC 868, wherein it was observed that the plaintiff in a suit for specific performance of an agreement must plead and prove that he was ready and willing to perform his part of the contract continuously between the date of the contract and the date of hearing of the suit There is no dispute about the proposition. However after taking into consideration all the above facts. I am of the view that the plaintiff has averred in the plaint that he was always and is ready and willing to perform his part of the agreement, I am further of the view that he has proved the averments.
9. The second contention of Mr. Bindra is that the sale deed dt. 4th May, 1972, was executed by defendant No. 1 in favour of defendant No. 2 in pursuance of the agreement dt. 27th December, 1970 and therefore, the decree for specific performance on the basis of the agreement dt. 3rd January, 1971, wlvch is subsequent to the agreement in favour of defendant No. 2, could not be passed in favour of the plaintiff.
10. I do not find any substance in this contention too. It is true that the agreement dt. 27th December, 1970. was a valid agreement between defendant No. 1 and defendant No. 2 but after the dismissal of the suit filed by defendant No. 2. he could not specificallv enforce the agreement. Consequently, he cannot be allowed to use the agreement as a defence to the plaintiff's suit. In the above view, I am fortified by the observations in Ramasami Pettar v. Chinan Asari, (1901) ILR 24 Mad 449.
In that case, ‘A’ mortgaged certain land with possession to ‘S’ for a sum of Rs. 100/-. The instrument of mortgage contained a covenant confering upon the mortgagee ‘S’ a right of pre-emption in case ‘A’ wanted to sell the land to some other person on receiving a specific consideration mentioned in the agreement from ‘S’. Later, ‘A’ sold the equity of redemption to ‘V’. V's interest was auctioned in execution of a decree and was purchased by the plaintiff. Subsequently, the plaintiff filed a suit for redemption. The mortgagee took a plea that the sale of equity of redemption by ‘A’ in favour of V was invalid. It was held that the defendant could not be allowed to use the contract as an answer to the plaintiff's suit as no suit could be brought by him to enforce the contract.
11. The third contention of Mr. Bindra is that the sale deed executed by defendant No. 2 in favour of defendant No. 1 could not be declared void as it is not hit by the principles of lis pendens, nor the injunction order by the Court would effect the validity of the transaction. According to him, if the defendants disobeyed the injunction order, action can be taken against them either under the Code of Civil Procedure or under the Contempt of Courts Act, but the sale deed cannot be declared to be void.
12. Mr. Roop Chand learned counsel for respondent No. 1. does not contest the argument. He however, submits that in view of the facts and circumstances of the case, the decree for specific performance be granted against defendants Nos. 1 and 2 and they be directed to execute the sale deed in his favour.
13. Mr. Bindra in reply has argued that no such prayer has been made in the plaint and, therefore, the plaintiff is not entitled to that relief. The plaintiff, in the present case, has claimed the relief of specific performance and has further prayed that the sale deeds dt. 28th February, 1972. be ordered to be registered in his favour. Thus, there is a prayer for specific performance of the agreement of sale in the plaint by the plaintiff. Even otherwise, under Order 7. Rule 7, Civil P.C the Court can grant relief on the facts proved in the case. In the said view. I am fortified by the observations of a Division Bench of this Court in Shiv Dayal Kapoor v. Union of India, AIR 1963 Punjab 538. It was held there that a plaintiff ought to be given such relief as he is entitled to get on the facts established upon the evidence in the case even if the plaint does not contain a specific prayer for that relief. I therefore, hold that the plaintiff is entitled to the relief of specific performance of the agreement dt. 3rd January, 1971.
14. Lastly, it was sought to be contended by Mr. Bindra that in view of Sec. 77 of the Registration Act the suit for specific performance was not mantainable. No such plea was taken by the defendant-appellants in the written statement and no argument was raised on their behalf either in the trial Court or before the District Judge in appeal. Consequently, I did not allow him to raise the plea.
15. Another question that arises is in which form the relief should be granted to the plaintiff. The matter has been examined by the Supreme Court in Durga Prasad v. Deep Chand, AIR 1954 SC 75. The relevant observations are as follows fat p. 81):—
“In our opinion, the proper form of decree is to direct specific performance of the contract between the vendor and the plaintiff and direct the subsequent transferee to join in the conveyance so as to pass on the title which resides in him to the plaintiff. He does not join in any special covenants made between the plaintiff and his vendor: all he does is to pass on his title to the plaintiff. This was the course followed by the Calcutta High Court in Kafiladdin v. Samiraddin, AIR 1931 Cal 67 (C) and appears to be the English practice. See Fry on Specific Performance, 6th Edn. page 90. para 207: also — Potter v. Sanders, (1846) 67 ER 1057 (D).”
16. For the aforesaid reasons, I do not find merit in the appeal but modify the decree and order specific performance of the agreement dt. 3rd January, 1971. in favour of the plaintiff by defendant No. 1 on deposit in the executing Court of Rs. 1500/- within a period of two months and direct defendant No. 2 to join in executing the conveyance deed. In case the defendants fail to execute the conveyance-deed, the plaintiff shall be entitled to get the same executed through Court. The appellants shall be liable to pay the costs of appeal. However, if the plaintiff fails, to deposit the amount within the said period, his suit shall stand dismissed with costs throughout.
Appeal dismissed.
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