Devi Vs. Nawal Kishore  INSC 182 (2 April 1993)
Reddy, B.P. (J) Jeevan Reddy, B.P. (J) Venkatachala N. (J)
1994 AIR 1200 1995 SCC Supl. (1) 141
granted. None appears for the respondents. Heard counsel for the appellant.
appeal is preferred by the plaintiff. His suit for specific performance was
decided by the trial court and affirmed in appeal by the first appellate court.
On second appeal, however, the High Court has reversed the judgment and decree
of courts below and dismissed the suit.
plaintiff's case was that the first defendant executed an agreement of sale on 10-9-1969, whereunder he agreed to sell the suit property for
a consideration or Rs 9500. A sum of Rs 5000 was paid by way of earnest money.
The balance was to be paid and the sale deed registered on or before 31-10-1969. Plaintiff's case was that though he called upon the
first defendant to execute the sale deed, he did not. He said, he even
purchased requisite stamps and was ready with the balance consideration. The
first defendant avoided to execute the sale deed whereupon he issued a notice
on 26-12-1969 and filed the suit soon thereafter.
The first defendant contested the suit. She complained that the plaintiff
played fraud upon her.
to her, some other land was to be + Arising out of SLP (C) No. 1599 of 1986 142
sold and she was paid only Rs 1000. She denied the execution of the agreement
of sale sought to be enforced by the plaintiff.
first defendant Pachia Devi died and in her place Smt Jamuni Devi was brought
on record as the legal representative.
the suit, Jamuni Devi sold the suit land in favour of second defendant, Nawal Kishore.
consideration of the material placed before the parties, the trial court
decreed the suit. The operative portion of the trial court's judgment reads as
the result, it is hereby ordered that the suit be decreed on contest with cost
as against defendant 2, namely Nawal Kishore bu t ex parte without cost as
against defendant 1 , Jamuni Devi. It is to be noted that defendant 2, Nawal Kishore
is a purchaser from Jamuni Devi, heir of Pachia Devi pendente lite and hence,
his purchase is subject to the result of the suit. The result is that the
contract of sale is found legal and valid and can be upheld against Jamuni Devi.
The intervenor- defendant Nawal Kishore has no locus standi and is not entitled
to retain possession, if any, of the disputed property. The plaintiffs are
directed to deposit Rs 4500 as a balance amount of the price on which the
disputed land was contracted to be sold to them within a month from the passing
of the decree on deposit of the said money in favour of Jamuni Devi, the
plaintiffs will be entitled to get a sale deed executed in their favour in
respect of the properties in dispute by Jamuni Devi within period of a month
thereof failing the execution of the sale deed by Jamuni Devi, the plaintiffs
will have a right to get the sale deed executed through the agency of the Court
at the defendants' cost. Pleader's fee Rs 32 and pleader's clerk fee Rs IO
only." 7.The first defendant vendor did not file any appeal.
Kishore, the second defendant preferred the appeal which was dismissed by the
4th Additional District Judge, Gaya on 12-2-1977. Nawal Kishore then approached the High Court by way
of second appeal (being appeal against appellate decree No. 329/776). The
learned Judge observed in the first instance that the plaint does not contain
an averment to the effect that the plaintiff was ready and willing to perform
his part of the contract. He then observed that even if such a statement can be
said to be implicit in the plaint, even so it must be held that the plaintiff
was not ready and willing to perform his part of the contract. This, the
learned Judge said, was evident from the fact that even though the decree of
the trial court directed him to deposit the balance purchase money within one
month, he did not deposit the same. Indeed, the learned Judge observed the
plaintiff did never deposit the balance amount in the court. On the above
basis, the learned Judge concluded that the plaintiff was not ready and willing
to perform his part of the contract and accordingly dismissed the suit.
paragraph 10 of the SLP, it is stated that the plaintiff paid the balance
consideration of Rs 4500 to the first defendant-Jamuni Devi on 16-9-1974 and
that she executed the sale deed which was registered on 12-12-1974.
is how the statement in para 10 reads- "... that on 16-9-1974 defendant 1,
Smt Jamuni Devi, wife of Baso Thakur who was substitute d in place of Pachia Devi
who had died, executed the sale deed in favour of the petitioners after
receiving Rs 4500 the balance 143 amount due as per the judgment of the trial
court, continued in Annexure 1.
said deed was registered on 12-12-1974." 9.Learned counsel for the
petitioner points out that this statement in para 10 of the SLP has not been controverted
by the respondent-second defendant in his counter-affidavit though he chose to
controvert other allegations in the SLP.
this basis, the learned counsel for the appellant contends that the main basis
upon which the High Court has dismissed the suit is unsustainable. Counsel says
that there was no occasion for the plaintiff to state this fact in the first
appellate court or High Court, since it was never alleged by the second
defendant that he failed to deposit the amount as per the decree of the trial
only has the plaintiff paid the amount within one month of the trial court's
decree but has also obtained the sale deed from the first defendant. The
learned counsel submits that the mere fact that he paid the amount directly to
the first defendant, instead of depositing the same into court as per the judgment
and decree of the trial court, cannot be termed as a default on his part nor
does it disentitle him from the relief. He asserted that his allegation has not
even been dealt with or denied by the respondent in his counter-affidavit.
Apart from the above, there is another important circumstance against the
respondent-second defendant; he is a purchaser pendente lite. It is not as if
he holds an agreement of sale deed executed prior to the institution of suit.
The first defendant has not chosen to file an appeal against the decree of the
trial court. Even the second appeal is filed only by the second defendant.
second defendant cannot claim any right of his own; he is bound by the decree
passed against the first defendant, it is argued.
The suit was initially instituted only against the vendor (first defendant).Nawal
Kishore got himself impleaded, after purchasing the same pendente lite. Section
52 of the Transfer of Property Act provides that any such transfer shall not
affect the rights of the other party. In such a case there can be no question
of his claiming to a bona fide transferee for value. However, we do not wish to
rest our judgment on the said ground since it has not been put forward in the
courts below. Suffice it to hold that the reasoning of the High Court, viz.,
that the plaintiff was not ready and willing to abide by the decree passed by
the trial court, is found to be unsustainable. No such contention was ever
urged by the respondent-second defendant before the first appellate court, The
said contention appears to have been urged for the first time at the hearing of
the second appeal. Once it is held that the plaintiff did pay the amount and
obtain the sale deed within the period prescribed by the trial court, the main
ground upon which the High Court had dismissed his suit becomes untenable.
Regarding the absence of averment in the plaint that the plaintiff was ready
and willing to perform his part of the contract, we must say we are not
satisfied with the reasoning of the High Court, apart from the fact that the
said finding is a halting one. It is evident from the pleadings qua the facts
of the case that the plaintiff was anxious at all points of time and was ready
and willing to perform his part of the contract.
The appeal is accordingly allowed. No cost.