Supreme Court of India
Shyam Kumar Inani vs Vinod Agrawal on 12 November, 2024
Author: Vikram Nath
Bench: Prashant Kumar Mishra, Vikram Nath
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 2845/2015
SHYAM KUMAR INANI …APPELLANT(S)
VERSUS
VINOD AGRAWAL & ORS. …RESPONDENT(S)
WITH
CIVIL APPEAL No. 2846/2015
CIVIL APPEAL No. 2850/2015
CIVIL APPEAL No. 2847/2015
CIVIL APPEAL No. 2848/2015
CIVIL APPEAL No. 2852/2015
JUDGMENT
VIKRAM NATH, J.
1. The six appellants are the plaintiffs in a suit for
specific performance of a contract. The Trial Court
decreed the suit. However, the High Court, on first
appeal, allowed the appeal, set aside the order of the
Trial Court and dismissed the suit. Aggrieved, the
present appeals by the plaintiffs.
Signature Not Verified
Digitally signed by
SONIA BHASIN
Date: 2024.11.12
18:45:14 IST
Reason:
CIVIL APPEAL NO(S). 2845/2015 ETC.ETC. Page 1 of 55
2. The dispute relates to 23.98 acres of Khasra Nos.546,
547 and 548 situate in village Godar Mau, Tehsil
Huzur, District Bhopal. It is an admitted position
between the parties that a larger area measuring
27.56 acres of the aforesaid three khasra numbers
was purchased by one Sushila Bai, wife of late
Chandra Mal Aggarwal, vide registered sale deed
dated 29.04.1966 executed by erstwhile owner Vijay
Chhatti for a sale consideration of Rs.7,000/-. Based
on the said instrument, the name of Sushila Bai was
mutated in land revenue records.
3. The appellants filed separate suits for specific
performance in May, 1995 against the legal heirs of
Sushila Devi.
4. It would be relevant to mention here that in the
plaint, defendant nos.1, 2, 3, 4 and 5 were the other
legal heirs of late Sushila Devi. We have mentioned
the name of Kailash Aggarwal separately as he had a
distinct role to play in the entire transaction. The
sequence of events which would be discussed and
pleaded upon at a later stage will reflect upon the role
of Kailash Aggarwal. However, needless to say that
Kailash Aggarwal was the eldest son of Sushila Devi.
All the plaints are more or less identically worded, as
CIVIL APPEAL NO(S). 2845/2015 ETC.ETC. Page 2 of 55
such, we are not giving any specific details of the
separate suit schedule property for each of the plaint,
but we have generally dealt with the plaint
allegations. Briefly stated the plaint allegations are as
follows:
a) Sushila Devi was the owner of the suit schedule
property. She entered into an Agreement to Sell
on 30.08.1990 with each of the appellants
separately after receiving the entire sale
consideration. The appellants had taken over
actual possession, having paid the entire sale
consideration, the suit schedule property was
agricultural land and cultivated by the
appellants.
b) Details of the land covered and the sale
consideration with respect to six Agreement to
Sell are as follows:
S. Khasra Area Consideration Name of
NO. No. Purchaser
1. 548 3.48 Rs.58,000/- Bharat
acres Kumar Lathi
2. 547 3.50 Rs.70,000/- Shyam
acres Kumar InaniCIVIL APPEAL NO(S). 2845/2015 ETC.ETC. Page 3 of 55
3. 547 4.0 Rs. 80,000/- Suryakanta
acres Maheshwari
w/o KD
Maheshwari
4. 547 4.0 Rs. 80,000/- Ram Kumar
acres Inani
5. 546 4.50 Rs. 90,000/- Sangeeta
acres Maheshwari
d/o K.D.
Maheshwari
6. 546 4.50 Rs. 90,000/- K.D.
acres Maheshwari
c) The defendants are the legal heirs of Sushila
Devi and Agreement to Sell was binding
upon them, but they declined to fulfil their
legal obligation by executing the sale deed in
favour of the appellants and had instead
applied for mutation for the suit schedule
property which had been allowed by the
revenue authority.
d) As the entire sale consideration had been
paid as per the contents of the Agreement to
Sell, the appellants were put into possession
also. The original title deed of 1966 in favour
of Sushila Devi was also handed over to the
appellants. The witnesses to the Agreement
CIVIL APPEAL NO(S). 2845/2015 ETC.ETC. Page 4 of 55
to Sell were Dipesh Chandra Patni PW-2 and
one Mr. Sharma. As the entire sale
consideration had been paid, the time was
not the essence of contract and the same
was also incorporated in the Agreement to
Sell in clause 6. Smt. Sushila Devi executed
a registered General Power of Attorney in
favour of M.K. Maheshwari on 04.09.1990.
She died on 25.12.1992 leaving behind the
respondent nos. 1, 2, 3, 9 and 10 as her legal
heirs and representatives.
e) The legal heirs applied for mutation of their
names over the suit schedule property to
which objections were filed by the
appellants. However, they were
unsuccessful, and the Tehsildar directed for
mutation of the names of the legal heirs by
order dated 23.02.1999.
f) The appellants, vide notice dated
28.04.1994 called upon the legal heirs of
Sushila Devi to execute the sale deed.
However, the same was not honoured.
g) The appellants instituted six separate Civil
Suits, each seeking a decree for specific
performance of an Agreement to Sell dated
30.08.1990, against the legal heirs of
CIVIL APPEAL NO(S). 2845/2015 ETC.ETC. Page 5 of 55
Sushila Devi, compelling them to execute the
sale deed in accordance with the said
agreement. In these suits, the following
reliefs were similarly claimed:
(i) A decree directing the defendants to
specifically perform their obligations
under the Agreement to Sell dated
30.08.1990 by registering a sale
deed for the agricultural land under
the respective khasra numbers in
favour of the appellants.
Alternatively, a direction was sought
for the court itself to execute a legal
sale deed for the disputed property
in favour of the appellants.
(ii) An award of costs of the suit in
favour of the appellants and against
the defendants, along with any other
reliefs deemed appropriate by the
court.
(iii) A permanent injunction restraining
defendants no. 1 to 5 from
alienating, altering or placing any
encumbrances on the said property,
and from transferring the suit
property to any third party or
governmental authority.
(iv) A declaration that the subsequent
transfer of the suit property, effected
on 18.01.2001, was void and not
binding on the appellants.
CIVIL APPEAL NO(S). 2845/2015 ETC.ETC. Page 6 of 55
h) Further, it was brought on record, by way of
amendment to the plaint that the defendant
numbers 1 to 5 on the basis of the mutation
order passed on 23.02.1999 was likely to
alienate the suit schedule property in favour
of third party and, later on, by a further
amendment, it was brought on record that
defendant nos. 2 to 5 by four separate sale
deeds actually alienated the suit schedule
property in favour of newly added
dependent nos. 7 to 10 on 18.01.2001. State
of Madhya Pradesh was also made a party to
the suit as defendant no. 6. Trial Court
passed an interim injunction order on
04.12.2000 putting a restraint on the
alienation of the property in suit.
i) Despite there being an injunction order
restraining the defendants from alienating
the suit schedule property, the appellants
were always ready and willing to perform
their part of the contract which only required
registration of the sale deed as the entire sale
consideration had already been paid. A
prayer for specific performance of the
CIVIL APPEAL NO(S). 2845/2015 ETC.ETC. Page 7 of 55
contract was made based on such plaint
averments.
5. A brief written statement was filed by the respondent
State of Madhya Pradesh-defendant number 6
(respondent no.8) to the effect that the suit schedule
property fell in urban area (Nagariya Kshetra) under
the Nagar Bhumi Seema Adhiniyam and as per the
requirements of the said Act, it was only after the
enforcement of the new Master Plan, that the actual
area of land which the owner would be entitled to
possess, would be determined. As such, the
defendant would not have any right to sell the
property, nor would the plaintiff have any right to buy
these properties. The plaintiff is, thus, not entitled to
any relief.
6. Defendant nos. 2, 3 and 4, namely Vinod Aggarwal,
Jagdish Aggarwal and Usha Aggarwal, three of the
legal heirs of Sushila Devi filed a joint written
statement. They denied the contents of the plaint
except to the extent that Sushila Devi was the owner
of the suit schedule property. It was further stated
that she had never executed any Agreement to Sell. It
was, thus, claimed that the suit deserves to be
dismissed.
CIVIL APPEAL NO(S). 2845/2015 ETC.ETC. Page 8 of 55
7. The subsequent purchasers, under the sale deed
dated 18.01.2001, filed a separate written statement
denying the plaint allegations. They also denied that
any Agreement to Sell dated 30.08.1990 was
executed by Sushila Devi. No specific answer has
been given as to whether the sale deed dated
18.01.2001 in their favour was executed in violation
of the injunction order. They also took the plea that
the Agreement to Sell required compulsory
registration and also payment of sufficient stamp
duty which was not done, as such, the same was not
admissible in evidence.
8. It was further stated in their written statement that
the sale consideration mentioned in the Agreement to
Sell was much below the prevailing market rate
which indicated mala fide on the part of the
appellants. A plea was also raised to the effect that
the suit scheduled property was owned by a HUF and
as such the Agreement to Sell having been executed
only by Sushila Devi without the consent or
confirmation of the other members of HUF, the
Agreement to Sell was void. On such averments, the
defendant nos. 7 to 10 stated that the suit was liable
to be dismissed.
CIVIL APPEAL NO(S). 2845/2015 ETC.ETC. Page 9 of 55
9. The Trial Court, on the pleadings of the parties,
framed the following issues as stated in paragraph 8
of the judgment along with its findings on each issue.
The same are reproduced hereunder:
“
Issues Finding
1. Whether an Agreement Sushilabai had
was executed on 30.08.90 with executed an
the plaintiff by the mother of agreement dated
the defendants late Sushilabai 30.08.90 for the sale of
for the sale of the disputed disputed land with the
land situated in Godar Mau plaintiff.
Khasra No.548 area 3.49
acres?
2. Whether the plaintiff All the amount of the
making full payment of the bai was paid by the
Agreement to late Sushilabai plaintiff to Sushila bai
obtained the possession of the and the possession of
disputed property on 30.08.90 the disputed property
itself? has been obtained.
3(a) Whether the plaintiff has In compliance with the
been always ready to comply agreement the plaintif
with the Agreement? has been willing and
ready to fulfil.
3(b) Whether the defendants The Defendants have
have refused to comply with refused to comply with
the agreement? the Agreement.
4. Whether the dispute Proved
being of agricultural land, the
State of M.P. is necessary
party?
CIVIL APPEAL NO(S). 2845/2015 ETC.ETC. Page 10 of 55
5.Whether the Defendant Yes
No.2 to 5 had sold the
disputed land to Deft. No.7 to
10 even there being order of
prohibition during the course
of trial?
6.Whether the plaintiff is All four sale-deeds
entitled to get 4 sale deeds dt.18.01.2001
dated 18.01.2001 to be concerning up to the
declared null and void? extent of the disputed
land the plaintiff is
entitled to get declared
null and void.
7. Relief and expenses As per last para of the
judgment & Decree
issued.”
10. The parties led both oral and documentary evidence
in support of their respective cases. The Trial Court,
vide judgment dated 14.05.2001, decreed all the
suits as contained in paragraph 45 of the judgment.
The operative part of the judgment of the Trial Court
is reproduced hereunder:
“…..
1. The disputed land situated in
Godar Mau in respect of Khasra
No.548 area 3.48 acres which was
sold by registered sale-deed dated
18.01.2001 b Usha Aggarwal to
Md. Shakir Khan, Vinod AggarwalCIVIL APPEAL NO(S). 2845/2015 ETC.ETC. Page 11 of 55
to Irfan Khan, Sangita Aggarwal to
Ashok Jaiswal and Jagdish
Aggarwal in favour of Tomo has
been executed, the lands of this
Khasra No. to that extent of about
4 sale deeds are declared null and
void.
2. That in favour of the plaintiff
defendants No.1 to 5 may get
executed the sale deed within a
period of two months of the
disputed land Khasra No.548 area
3.48 acres.
3. In respect of the above land, the
expenses are to be incurred on
getting the registered sale deed by
the plaintiff.
4. The cost of this suit of the plaintiff
will be borne by the defendants
and the defendants will bear their
own expenses.
….”
11. RCS No.47A/01 and one more were decided on
14.05.2001 and thereafter by a separate judgment
dated 05.10.2001, four other suits were decreed,
details whereof are given in the table below:
S.No. Civil Suit Party Name Decided
No. on.
1. RCS No. Bharat Kumar Lathi vs. 14.05.2001
22-A/97 Kaliash Agarwal & 9
others.
(Pankaj Maheshwari –
Power of attorney
Holder)
2. RCS No. Shyam Kumar Inani 14.05.2001
23-A/97 Vs.
CIVIL APPEAL NO(S). 2845/2015 ETC.ETC. Page 12 of 55
Kailash Agarwal & 9 ors.
Filed through self
(KDM Power of attorney
prosecuted later)
3. RCS Smt. Suryakanta vs. 05.10.2001
45-A/01 Kailash Agarwal and ors.
(KDM Power of attorney)
4. RCS Raj Kumar Inani 05.10.2001
46-A/01 Vs.
Kailash Agarwal & ors.
(KDM Power of attorney)
5. RCS Sangeeta Maheshwari 05.10.2001
47-A/01 Vs.
Kailash Agarwal & ors.
(KDM Power of Attorney)
6. RCS K.D. Maheshwari vs. 05.10.2001
48-A/01 Kailash Agarwal and ors.
(KDM Power of Attorney)
Filed through self
12. Aggrieved by the aforesaid two judgments, the
defendants filed an appeal under section 96 of the
Code of Civil Procedure, 1908 before the High Court.
The High Court, by the impugned judgment, has
allowed all the six appeals and after setting aside the
judgment of the Trial Court dismissed the suits.
Aggrieved, the plaintiffs are in appeal before this
Court.
13. Before proceeding further, briefly, the evidence led by
the appellant-plaintiffs and the defendant-
respondents may be noticed. The appellants
examined either the plaintiff or his Power of Attorney
holder as PW-1. Further, the attesting witness to the
CIVIL APPEAL NO(S). 2845/2015 ETC.ETC. Page 13 of 55
Agreement to Sell dated 30.08.1990, Dipesh Patni
was examined as PW-2 and Mahesh Kumar
Maheshwari was examined as PW-3, who was said to
have been Power of Attorney holder of Sushila Devi,
vide registered deed of Attorney dated 04.09.1990.
R.K. Pathik was examined as PW-4 as Handwriting
Expert (HWE).
14. On behalf of the defendants, Mohd. Shakir Khan was
examined as DW-1. One of the legal heirs of Sushila
Devi, namely Vinod Kumar Aggarwal, was examined
as DW-2, and Naveen Chandra Deshpande was
examined as DW-3 as Handwriting Expert (HWE). On
behalf of the plaintiffs, the Power of Attorneys of the
respective plaintiffs were filed and exhibited. The
Agreement to Sell dated 30.08.1990 was also filed
and duly proved as Exhibit-P/2. The original
documents handed over by Sushila Devi to her Power
of Attorney holder Mahesh Kumar Maheshwari were
also filed which included loan book, Ex.-P/3, Original
Sale deed dated 29.04.1966, Ex.-P/4, and the Power
of Attorney in favour of Mahesh Kumar Maheshwari,
Ex.-P/5
15. Further, the defendants filed documents relating to
the sale deed in favour of the defendants 7 to 10 along
with supporting documents like loan book etc. which
CIVIL APPEAL NO(S). 2845/2015 ETC.ETC. Page 14 of 55
were marked as Exhibits – D/1 to D/6. The list of
documents with brief description filed by the
plaintiffs as also the defendants in one of the suits is
given hereunder: –
“Documents filed by the Plaintiffs
Exhibit P-1 Sale agreement dated 30.8.1990
Exhibit P-2 Registered General Power of Attorney dated
4.9.1990 executed by Smt. Sushila Devi in
favour Shri M.K. MaheshwariExhibit P-3 Legal notice dated 28.04.1994
Exhibit P-4 Postal Receipt
Exhibit P-5 Sale-deed dated 29.4.1966 executed by
Vijay Chhatti in favour of Smt. Sushila Devi
in respect of Khasra Nos. 546, 547 and 548
area 9.3, 15.5 and 3.3 acres, total are 27.56
acres situated in Godarmau, Tahsil Huzur
District BhopalExhibit P-6 Rin Pustika issued in favour Smt. Sushila
DeviExhibit P-7 Registered Power of Attorney dated
20.04.1995 executed by Shri Ramkumar
Inani (Plaintiff) in favour of Shri K.D.
Maheshwari.
Exhibit P-8 Judgment and decree dated 14.05.2001
passed by learned Second Additional
District Judge, Bhopal in Civil Suit no.22-
A/1994 [Bharat Kumar Lathi vs. Kailash
Agrawal]
Exhibit P-9 Judgment and decree dated 14.05.2001
passed by Second Additional District Judge,
Bhopal in Civil Suit No.23-A /1997 [Shyam
Kumar Inani vs. Kailash Agrawal]
CIVIL APPEAL NO(S). 2845/2015 ETC.ETC. Page 15 of 55
Exhibit P-9A Evidence of Vinod Kumar Agrawal in Civil
Suit No.23-A/1997 [Shyam Kumar Inani vs.
Kailash Agrawal]
Exhibit P-10 Report of Handwriting Expert Shri R.K.
Pathik
Documents filed by the Defendants
Exhibit D-1 Bhu Adhikar Evam Rin Pustika issued in
favour of Kailash, Vinod and Jagdish
Exhibit D-2 Rin Pustika issued in favour of Irfan Khan
Exhibit D-3 Rin Pustika issued in favour of Modh. Shakir
Exhibit D-4 Rin Pustika issued in favour of Mr. Tommy
Exhibit D-5 Rin Pustika issued in favour of Ashok
Jaiswal
Exhibit D-6(c) Order sheets of Ceiling Case passed by
Additional Collector/Competent Authority
Exhibit D-7 Covering letter dated 28.08.2001 together
with opinion of Shri N.C. Deshpande
(Handwriting Expert)
Exhibit D-8 Copies of specimen signature of Smt.
Sushila Bai
to D-20
16. We have mentioned this list only for the purpose of
showing as to what were the documents generally
filed by the parties. Most of the documents were
common for all the six suits. The difference in
different suits could be of numbering of the
documents as exhibits but, more or less, they are one
and the same.
CIVIL APPEAL NO(S). 2845/2015 ETC.ETC. Page 16 of 55
17. We may now briefly refer to the discussion and
analysis made by the Trial Court including the
documents relied upon by it while decreeing the suit.
The Trial Court thoroughly analysed the claims of
both the parties, particularly focusing on the
Agreement to Sell dated 30.08.1990 and the
subsequent conduct of the parties. Following findings
were recorded by the Trial Court:
17.1. The Trial Court found that the appellants had paid
the entire sale consideration at the time of the
agreement, and the possession of the disputed
land was handed over by Sushila Devi to the
plaintiff-appellants. The appellants remained in
possession of the land since 30.08.1990, using it
for agricultural purposes. The Trial Court also
noted that after Sushila Devi’s death on
17.12.1992, the appellants had repeatedly
requested the defendants, as legal heirs, to
execute the sale deed in their favour, which the
defendants failed to do. This refusal constituted
the cause of action for filing the suit for specific
performance.
17.2. The Trial Court relied on the Power of Attorney
holder, Pankaj Maheshwari, as a key witness. HeCIVIL APPEAL NO(S). 2845/2015 ETC.ETC. Page 17 of 55
testified to his personal knowledge of the facts, the
execution of the agreement, and the possession
handed over to the plaintiff. Notably, Pankaj
Maheshwari also presented crucial documents,
including the original loan book, the registered
sale deed of 1966, and the Power of Attorney, all
of which were duly exhibited before the Trial
Court. The agreement was witnessed by Dipesh
Chandra Patni and one Mr. Sharma. Dipesh
Chandra Patni was examined as plaintiff’s witness
supporting the appellants’ case.
17.3. The defendants, despite alleging fraud and forgery
regarding the execution of the agreement and
Power of Attorney, failed to appear or provide any
rebuttal evidence. The Trial Court emphasized
that the burden of proving fraud lay with the
defendants, who did not present any credible
evidence to support their claims. The Trial Court
held that the defendants’ absence and failure to
present any substantial challenge to the
appellants’ evidence effectively confirmed the
validity of the agreement.
17.4. Further, the Trial Court addressed the sale of the
disputed property by the defendants to
subsequent purchasers, Defendant Nos. 7 to 10,
during the pendency of the trial. It noted that aCIVIL APPEAL NO(S). 2845/2015 ETC.ETC. Page 18 of 55
prohibition order had been passed restraining
such a transfer, yet the defendants proceeded
with the sale in violation of the Court’s directive.
As a result, the four sale deeds dated 18.01.2001
were declared null and void.
17.5. In its final findings, the Trial Court ruled that the
appellants had been ready and willing to perform
their obligations under the agreement. The suit
was found to be within the period of limitation, as
the cause of action arose when the legal heirs of
Sushila Devi refused to execute the sale deed after
her death.
17.6. The Trial Court directed that Defendant Nos. 1 to
5 must execute the sale deed in favour of the
plaintiff within two months and further declared
the sale deeds executed in favour of Defendant
Nos. 7 to 10 as null and void.
18. Now, we briefly refer to the reasoning and findings of
the High Court in allowing the appeal.
18.1. The High Court first scrutinized the Agreement to
Sell dated 30.08.1990, emphasizing that it was
not registered, and the sale consideration
appeared to be significantly below the market rate
prevailing at the time of the alleged transaction.
The High Court found this to be an indicator of
CIVIL APPEAL NO(S). 2845/2015 ETC.ETC. Page 19 of 55
potential mala fides on the part of the plaintiff-
appellants.
18.2. Furthermore, the High Court noted that the
agreement lacked specific details concerning the
boundaries of the disputed land, leading to
ambiguity about the property that was to be
conveyed.
18.3. On the issue of possession, the High Court
observed that while the appellants claimed to have
been put in possession of the land by Sushila
Devi, there was no substantial evidence to
corroborate this assertion.
18.4. The High Court found that the appellants had
failed to convincingly establish their possession of
the land in question, which significantly
weakened their case for specific performance.
18.5. In addition, the High Court placed significant
weight on the fact that the appellants did not enter
the witness box to testify in support of their
claims. Instead, the appellants relied on their
Power of Attorney holder, Pankaj Maheshwari, to
provide testimony. The High Court emphasized
that while a Power of Attorney holder may testify
regarding facts within their personal knowledge,
critical facts regarding the execution of the
CIVIL APPEAL NO(S). 2845/2015 ETC.ETC. Page 20 of 55
Agreement to Sell could only be testified to by the
appellants themselves. The failure of the
appellants to take the witness stand led the High
Court to draw an adverse inference under the
established legal principle that the best evidence
should be produced, especially when a party to
the agreement is alive and capable of testifying.
18.6. The High Court further examined the issue of
fraud and misrepresentation, which had been
raised by the defendants. It found that the entire
transaction was shrouded in suspicion, given the
low consideration, the alleged absence of clear
possession by the plaintiffs, and the fact that the
legal heirs of Sushila Devi were unaware of the
agreement. The High Court concluded that the
burden of proving the validity of the agreement
rested on the appellants, particularly in light of
the defence of fraud, but the appellants had failed
to discharge this burden satisfactorily.
18.7. On the issue of limitation, the High Court
disagreed with the Trial Court’s finding. The High
Court held that the suit was barred by limitation
under Article 54 of the Limitation Act, 1963. It
found that the cause of action for filing the suit
arose immediately after the death of Sushila Devi
CIVIL APPEAL NO(S). 2845/2015 ETC.ETC. Page 21 of 55
in 1992, yet the suit was filed only in 1995. Given
that no specific time was stipulated in the
agreement for the execution of the sale deed, the
High Court concluded that the suit was not filed
within the prescribed period of three years from
the date of Sushila Devi’s death or the time when
the right to sue first accrued. Based on these
findings, the High Court concluded that the
plaintiffs had failed to prove their case for specific
performance of the Agreement to Sell, and the sale
deeds executed in favour of Defendant Nos. 7 to
10 were not liable to be declared null and void.
The High also recorded a finding that the vendor
Sushila Devi was entitled to the benefits
admissible to a Pardanashin lady and relied upon
the judgments in the case of MST. Kharbuja Kuer
vs. Jangbahadur Rai & Ors1. and Krishna
Mohan Kul2. The High Court, thus, allowed the
appeal, set aside the decree passed by the Trial
Court, and dismissed the suits filed by the
plaintiffs.
19. We have heard Shri P.S. Patwalia and Shri Rahul
Sripat, learned senior counsels appearing for the
1
AIR 1963 SC 1203 (para 6)
2
(2004) 9 SCC 468
CIVIL APPEAL NO(S). 2845/2015 ETC.ETC. Page 22 of 55
appellants, Shri Sunil Kumar, Shri Sudhanshu
Shashikumr Choudhari and Shri Ardhendumauli
Kumar Prasad, learned senior advocates appearing
for different respondents in different appeals and
Shri Shekhar Kumar, advocate for the intervenor.
20. Briefly summarised, the arguments advanced on
behalf of the appellants by learned senior counsel are
to the following effect:
20.1. The Agreement to Sell dated 30.08.1990 executed
by Sushila Devi was duly proved and it was valid
and binding on the legal representatives of late
Sushila Devi. Our attention has been drawn to the
oral evidence as well as documentary evidence led
by the plaintiffs in support of the said Agreement
to Sell. The same would be dealt with at an
appropriate stage.
20.2. It was next submitted that the defence taken by
the respondents regarding plea of fraud and
misrepresentation with respect to Agreement to
Sell dated 30.08.1990, would be required to be
established by the defendants as the onus of proof
in this regard laid on the defendants. The High
Court, in the impugned judgment, erred to shift
the burden on the plaintiff-appellants, evenCIVIL APPEAL NO(S). 2845/2015 ETC.ETC. Page 23 of 55
though the High Court had specifically recorded
that the defendants had failed to lead any
evidence in respect of misrepresentation and
fraud.
20.3. An objection and argument was raised by the
respondents with regard to the plaintiffs not
entering the witness box to prove Agreement to
Sell dated 30.08.1990, and that the evidence led
by their Power of Attorney could not establish
such facts. The submission is that one of the
plaintiffs, namely K.D. Maheshwari, had entered
the witness box in his suit and he had the Power
of Attorney of the other five plaintiffs. This
witness, thus, had full knowledge of the facts
relating to Agreement to Sell as he was present at
the time of the execution of the Agreement to Sell
dated 30.08.1990 as one of the agreements was in
his favour. It was submitted that only a technical
objection was being raised by the respondent to
frustrate the valid claim of the appellants.
20.4. The High Court erred in observing that there was
no readiness and willingness on the part of the
plaintiff-appellants. In fact, the plaintiff-
appellants had discharged their full burden of
payment of the entire sale consideration at the
CIVIL APPEAL NO(S). 2845/2015 ETC.ETC. Page 24 of 55
time of execution of the Agreement to Sell and had
also received possession of the suit schedule
property. The only requirement left was of
execution of the sale deed and its registration, for
which, according to the appellants, they had been
requesting the legal heirs of late Sushila Devi but
as they declined and applied for mutation of their
names, the appellants instituted the suit for
decree of specific performance. It was not that any
obligation on the part of the plaintiff-appellants
towards Sushila Devi, or after her death her legal
heirs, remained. The issue of readiness and
willingness would arise where any obligation of
the plaintiff-purchaser towards the seller was
liable to be fulfilled and had not been fulfilled
within the time that may have been stipulated in
the Agreement to Sell. It is for this reason only that
the time was not the essence as stated in
paragraph 6 of the Agreement to Sell.
20.5. With respect to the submissions of the intervenor
of being bona fide purchasers for value, it was
submitted that the said intervenors would only get
the rights which their vendors had and if the
rights of the vendors are extinguished, no better
right can be claimed by the intervenors, who are
CIVIL APPEAL NO(S). 2845/2015 ETC.ETC. Page 25 of 55
the second set of subsequent purchasers after the
High Court decided the appeals by the impugned
order.
20.6. The High Court erred in holding that the suit was
barred by limitation. Once there was no specific
time frame mentioned in the Agreement to Sell for
performance, in view of the second part of the
Article 54 of the Limitation Act, the limitation to
file the suit of three years would run from the time
of refusal by the seller, which in this case arose in
1994 when the mutation proceedings were
initiated. The suit was well within time as it was
filed in May 1995.
20.7. The observations and the findings by the High
Court regarding the vagueness of the Agreement
to Sell and to declare the said document as void is
also not sustainable in law and such plea could
not have been raised by the seller having accepted
the consideration.
20.8. The conduct of the defendants has not been
correctly appreciated by the High Court which
would actually disentitle them from raising their
defence and contesting the claim of the
appellants. In this respect, reference has been
CIVIL APPEAL NO(S). 2845/2015 ETC.ETC. Page 26 of 55
made to the oral evidence of the defendants which
has been dealt with at an appropriate stage later
in this judgment. Referring to the expert evidence
relating to the genuineness of the signature of
Sushila Devi on the Agreement to Sell dated
30.08.1990, it was submitted that even the expert
witness introduced by the defendants, Shri N.C.
Deshpande, DW-3 had stated in his report to the
effect that this report would not go to establish
that the Agreement to Sell was not signed by
Sushila Devi. Thus, the defendants had failed to
establish their claim that no Agreement to Sell had
been executed by Sushila Devi.
21. On behalf of the respondents, the following
submissions have been made which are summarised
hereunder: –
21.1. The plaintiff-appellants failed to prove the
Agreement to Sell dated 30.08.1990 as also the
General Power of Attorney dated 04.09.1990. Our
attention was drawn to the evidence led by the
plaintiffs as also the defendants in support of the
submissions which would be dealt with
appropriately at a later stage while analysing the
arguments. Reliance was placed upon the
judgment of this Court in the case ofCIVIL APPEAL NO(S). 2845/2015 ETC.ETC. Page 27 of 55
Thiruvengadam Pillai vs. Navaneethammal and
Anr.321.2. Not only the plaintiffs failed to prove the execution
of Agreement to Sell and General Power of
Attorney, but they also failed to prove the contents
of the Agreement to Sell and the General Power of
Attorney. The submission that the contents of the
General Power of Attorney and the Agreement to
Sell were not read out and explained to the
executor, namely Sushila Devi as she was an old
illiterate lady, it was submitted that Sushila Devi
would thus fall in the category of a Pardanashin
lady and would be entitled to the protection
available to the Pardanashin lady as explained
and settled in the following judgments:
– MST. Kharbuja Kuer vs. Jangbahadur Rai &
Ors. (Supra)
– Krishna Mohan Kul vs. Pratima Maity and
ors.(para 17)21.3. The plaintiffs did not enter the witness box and
therefore could not have proved the Agreement to
Sell executed on 30.08.1990. Execution of a
document could be proved only by a person3
(2008) 4 SCC 250 (Para 19)CIVIL APPEAL NO(S). 2845/2015 ETC.ETC. Page 28 of 55
present at the time of the Agreement to Sell.
Reliance is placed upon the following four
judgments:
– Vidyadhar Vishnupant Ratnaparkhi v.
Manikrao Babarao Deshmukh and ors.4
– Janki Vashdeo Bhojwani & Anr. V. Indusind
Bank Ltd. And Anr.5
– Man kaur vs. Hartar Singh Sangha6
– Rajesh Kumar vs. Anand Kumar7
21.4. The readiness and willingness were not proved by
the plaintiff-appellants as they never made any
efforts to get the sale deed executed and registered
after getting the same typed out on the payable
stamp duty. The suit was not filed within a
reasonable time as it was not filed from three
years of the execution of the Agreement to Sell or
from the date of death of Smt. Sushila Devi who
had died on 25.12.1992. The suit was filed about
two and a half years from the date of death of
Sushila Devi and about four and a half years from
the date of execution of the alleged Agreement to
Sell. As such, no discretionary relief should be4
(1993) 3 SCC 573 (para 17)
5
(2005) 2 SCC 217
6
(2010) 10 SCC 512 (para 17 & 21)
7
(2024) SCC OnLine SC 981CIVIL APPEAL NO(S). 2845/2015 ETC.ETC. Page 29 of 55
granted in such a case where a suit is filed with
such delay.
21.5. The Agreement to Sell did not contain the specific
boundaries of the land covered by the same and
the same being vague, as such, no specific
performance could have been granted. Possession
has always remained with Sushila Devi and
thereafter her legal heirs and now is with the
transferees as has been held by the High Court.
The sale deeds executed during the pendency of
proceedings would not outrightly be declared as
void but would only be subject to adjudication.
Reliance is placed upon the following judgments:
– Thomson Press (India) Ltd. V. Nank Builders
& Investors (P) Ltd.8
– Yogesh Goyanka v. Govind9
21.6. On the above submissions, no discretionary reliefs
should be granted to the plaintiff-appellants and
the High Court has rightly declined the same.
22. On behalf of the intervenor, in addition to what has
been submitted on behalf of the respondents, further
submissions are summarised hereunder:-
8
(2013) 5 SCC 397 (para 53)
9
(2024) SCC OnLine SC 1692 (para 16 & 17)CIVIL APPEAL NO(S). 2845/2015 ETC.ETC. Page 30 of 55
22.1. Bona Fide Purchaser Without Notice: The
intervenor argued that they purchased the suit
property (22 acres) from Respondent Nos. 4 to 7
on 26/03/2012 and 31/03/2012 through a
registered sale deed for a total consideration of Rs.
7.92 crores. At the time of the purchase, the
intervenor had no knowledge of the pending
litigation. They only became aware of the appeals
after the purchase and filed the intervention
applications accordingly.
22.2. Lis Pendens Doctrine Not Applicable: The
intervenor submitted that the doctrine of lis
pendens under Section 52 of the Transfer of
Property Act, 1882, does not apply in their case as
the sale took place after the High Court’s
judgment on 15/03/2012 and before the Supreme
Court’s order on 30/04/2012 directing the parties
to maintain the status quo. Therefore, they
asserted that no litigation was pending during this
period, and the transfer of the property was
lawful.
22.3. Registered Sale Deeds Valid: The intervenor
contended that no relief can be granted to the
appellants in the absence of a specific challenge to
the registered sale deeds executed in their favor.
CIVIL APPEAL NO(S). 2845/2015 ETC.ETC. Page 31 of 55
They argued that as bona fide purchasers for
value, their rights should be protected.
22.4. Agreement to Sell and Specific Performance:
The intervenor further highlighted that the
Agreement to Sell dated 30.08.1990 was vague
and lacked specific details regarding the
boundaries of the land. This made the agreement
void under Section 29 of the Contract Act, 1872.
22.5. Power of Attorney Holder’s Limitations: The
intervenor pointed out that the plaintiffs relied on
Power of Attorney holder to prove the Agreement
to Sell, which was contrary to settled law. The
intervenor cited the case of Janki Vashdeo
(supra), to argue that a Power of Attorney holder
cannot depose for acts done by the principal
unless they had direct knowledge of the
transaction.
22.6. Lack of Readiness and Willingness: The
intervenor argued that the plaintiffs failed to
demonstrate readiness and willingness to execute
the sale deed, which is a crucial requirement
under Section 16(c) of the Specific Relief Act,
1963. They submitted that the plaintiffs never
acted to get the sale deed executed and failed to
CIVIL APPEAL NO(S). 2845/2015 ETC.ETC. Page 32 of 55
take any concrete steps before the death of
Sushila Bai on 25/12/1992.
ANALYSIS
23. The present case is one of non-concurrent
judgement, where the Trial Court, after appreciating
and analysing the evidence on record, decreed the
suit, however the High Court, on appeal, reversed the
findings of the Trial Court and dismissed the suit for
specific performance. We have carefully gone through
the pleadings and the evidence on record. The
findings recorded by the Trial Court and the High
Court have already been briefly summarised. The key
points germane to the litigation are briefly stated
below: –
(i). Whether the Agreement to Sell dated 13.08.1990
was validly executed and proved?
(ii). Whether the General Power of Attorney executed
by Sushila Devi in favour of M.K. Maheshwari on
04.09.1990 and duly registered created any
doubt or suspicion on the conduct of the
plaintiff-appellants?
(iii). Whether the plaintiffs not entering into the
witness box in five of the suits would call for an
adverse inference, although their Power of
Attorney had entered the witness box?
(iv). Whether the suit was barred by limitation?
CIVIL APPEAL NO(S). 2845/2015 ETC.ETC. Page 33 of 55
(v). Whether the forgery alleged by the defendants
was actually proved by way of proper pleading
and evidence to establish the same or was it just
taken as a casual defence?
(vi). Whether Kailash Aggarwal (defendant No.1), the
eldest son of Sushila Devi, having not filed any
written statement nor having entered the witness
box on behalf of the defendants, would have an
effect of adverse bearing against the defendants?
(vii).Whether the finding of the High Court that
Sushila Devi was a Pardanashin lady, and thus
entitled to the benefit of the same, was actually
pleaded and proved by the defendants?
(viii). Whether the plaintiff-appellants producing the
original sale deed of 1966 under which Sushila
Devi had acquired the rights of ownership and
the original Rin Pustika of Sushila Devi was a
relevant fact and would it adversely impact the
defendants?
(ix). Whether the alienation by the defendant-legal
heirs of Sushila Devi in gross violation of interim
injunction granted by the High Court would have
an impact on the validity of the sale deed
executed in favour of the 3rd parties and also have
an adverse impact on the conduct of the
defendants?
CIVIL APPEAL NO(S). 2845/2015 ETC.ETC. Page 34 of 55
(x). Whether there was any issue of readiness and
willingness relevant in a case where, at the time
of entering into the Agreement to Sell, the
purchaser had paid the entire sale consideration
to the seller?
24. We now proceed to deal with the each of the above
points framed by us to test whether the judgment of
the Trial Court or the High Court deserved to be
maintained.
1. AGREEMENT TO SELL DATED 30.08.1990
25. In all, there are seven Agreements to Sell executed by
Sushila Devi in favour of different purchasers on
30.08.1990, and accordingly, seven suits were filed.
Before us, only six purchasers are in appeal. With
respect to the 7th purchaser, apparently the matter is
pending before the High Court or the Trial Court. One
of the purchasers is K.D. Maheshwari, who is the
plaintiff in suit RCS No. 48-A/01. He held the Power
of Attorney for the four other purchasers who are
before us. K.D. Maheshwari appeared as PW-1 in five
suits, either as the plaintiff in his own suit or as the
Power of Attorney holder for the other four plaintiffs.
In one case, the plaintiff Bharat Kumar Lathi had
executed Power of Attorney in favour of Pankaj
CIVIL APPEAL NO(S). 2845/2015 ETC.ETC. Page 35 of 55
Maheshwari. In the said suit, he examined himself as
PW-I. K.D. Maheshwari proved the execution of the
Agreement to Sell, the payment of the full
consideration to Sushila Devi, and also that Sushila
Devi and the witnesses duly signed the Agreement to
Sell. In addition, the plaintiffs examined one of the
attesting witnesses to the Agreement to Sell, namely
Dipesh Chandra Patni as PW-2. Further, M.K.
Maheshwari, who had a registered Power of Attorney
from Sushila Devi executed on 04.09.1990, was also
examined as PW-3, and he supported the plaintiffs
stating that Sushila Devi had executed the
Agreement to Sell after receiving the full
consideration. The plaintiffs also examined Mr. R.K.
Pathik, a handwriting expert, to prove that the
signatures on the Agreement to Sell were that of
Sushila Devi.
26. The plaintiff-appellants, thus, discharged their
burden of proving the transaction between Sushila
Devi and the plaintiffs on 13.08.1990, the passing of
the consideration, and the execution of Agreement to
Sell.
27. Coming to the evidence of defendant-respondents,
the legal heirs of Sushila Devi, one Mohd. Shakir
Khan was examined as DW-1, one of the legal heirs
of Sushila Devi namely Vinod Aggarwal was
CIVIL APPEAL NO(S). 2845/2015 ETC.ETC. Page 36 of 55
examined as DW-2, and one N.C. Deshpande, a
handwriting expert, was examined as DW-3. Mohd.
Shakir Khan is the subsequent purchaser. He had no
personal knowledge of the transaction that took place
on 30.08.1990 at the time of execution of the
Agreement to Sell. Vinod Kumar Aggarwal was one of
the sons of Sushila Devi, and was admittedly not
residing with her. Defendants had set up a case that
the Agreement to Sell was a forged document, and
had denied its execution and also passing of any
consideration. In support of their allegation of
forgery, the defendant had examined Mr. N.C.
Deshpande, a handwriting expert, as PW-3.
Interestingly, Mr. N.C. Deshpande could not come to
a definite conclusion that the signatures on the
Agreement to Sell, upon being compared with the
admitted signatures, could not be said to be definitely
not of Sushila Devi. He, in fact, made a candid
admission that according to his opinion, it could not
be said that the signatures on the Agreement to Sell
were not of Sushila Devi. The star witness of the
defendants could have been Kailash Aggarwal, the
eldest son, in whose presence the Agreement to Sell
had been executed and also the subsequent
registered Power of Attorney in favour of M.K.
Maheshwari. For reasons best known to the legal
CIVIL APPEAL NO(S). 2845/2015 ETC.ETC. Page 37 of 55
heirs of Sushila Devi (the original defendants),
Kailash Aggarwal chose not to appear in the witness
box. This clearly reflects that original defendants
were trying to avoid to face the real facts and,
therefore, they avoided Kailash Aggarwal from
entering the witness box. In the totality of
consideration of evidence on record with regard to the
execution of Agreement to Sell, we are of the view that
the same had been validly proved by the plaintiff-
appellants and the defendants had failed to establish
their claim that it was a forged document.
2. PLAINTIFF NOT ENTERING THE WITNESS BOX
28. Any adverse inference drawn by the High Court for
the reason that the plaintiffs did not enter the witness
box to prove the Agreement to Sell, in our opinion,
was completely misplaced. Mr. K.D. Maheshwari is
one of the purchasers and plaintiff in his suit for
specific performance. He was throughout present in
the transaction which took place on 30.08.1990. He
held the Power of Attorney from the other plaintiffs
and therefore, it was not necessary for each of the
plaintiffs in separate suits to appear and prove the
transaction of 30.08.1990. Mr. K. D. Maheshwari,
who was examined as PW-1 in each of the suits
whether in his capacity as plaintiff or as Power of
CIVIL APPEAL NO(S). 2845/2015 ETC.ETC. Page 38 of 55
Attorney from other plaintiffs, was fully justified in
establishing the facts that transpired on 30.08.1990.
The Trial Court had examined this aspect and had
found favour with the plaintiffs. The finding of the
High Court on this aspect is not approved in view of
the above.
3. EFFECT OF THE REGISTERED POWER OF ATTORNEY
DATED 04.09.1990
29. Sushila Devi on 04.09.1990, in the presence of her
son Kailash Aggarwal, executed a General Power of
Attorney in favour of M.K. Maheshwari, who
happened to be the real brother of K.D. Maheshwari,
one of the purchasers. If Sushila Devi executed the
Power of Attorney, no fault could be found with the
same, as she wanted herself to be free from
repeatedly going to the Registry Office for execution
and registration of sale deeds. No suspicion could
arise on account of execution of General Power of
Attorney which was a registered document. Any
challenge to the same by her legal heirs was without
any basis and totally based on conjectures. The bona
fides of the plaintiffs are also apparent from the fact
that if they were actually doing any mischief, fraud,
or misrepresentation, they would have immediately
got the sale deeds executed and registered through
CIVIL APPEAL NO(S). 2845/2015 ETC.ETC. Page 39 of 55
the Power of Attorney of M.K. Maheshwari soon after
its execution on 04.09.1990. But, they did not do so
and continued to request Sushila Devi and, later, her
legal heirs to execute the sale deed, even after her
death. However, when they failed to do so and upon
the death of Sushila Devi, applied for mutation of
their names in the revenue records and the plaintiff-
appellants had to file objections in the revenue
proceedings, they were compelled to file the suit.
4. LIMITATION
30. The limitation for filing a suit for specific performance
is three years from the date fixed for the performance
or if no such date is fixed, when the plaintiff had
notice that the performance is refused as stipulated
in Article 54 of the Schedule to the Limitation Act,
1963. In the present case, the Agreement to Sell did
not mention any date for the performance, nor did
Sushila Devi refused at any point of time and soon
after the death of Sushila Devi in December 1992, the
plaintiffs having come to know of the mutation
proceedings by her legal heirs, they proceeded to file
the suit, after giving notice in May 1995, which was
well within a period of three years. The High Court
fell in error in holding that the suit is barred by
limitation as it was filed after more than three years
from the date of execution of Agreement to Sell. The
CIVIL APPEAL NO(S). 2845/2015 ETC.ETC. Page 40 of 55
High Court failed to take into consideration that it
was the second part of Article 54 of the Schedule to
the Limitation Act which would be applicable once
there was no date fixed for performance in the
Agreement to Sell.
5. ORIGINAL TITLE DEEDS WITH THE PLAINTIFFS-
APPELLANTS
31. Sushila Devi had purchased the property in question
in the year 1966 by way of a sale deed dated
23.04.1966. The said sale deed would normally be in
possession of Sushila Devi or her legal heirs.
Surprisingly, the said original sale deed of 1966 was
filed and duly exhibited by the plaintiffs-appellants.
Even the original Rin Pustika in the name of Sushila
Devi was also filed by the plaintiffs-appellants and
duly exhibited. Kailash Aggarwal (Sushila Devi’s
eldest son) is said to have been present both at the
time of Agreement to Sell dated 30.08.1990 and again
at the time of execution and registration of General
Power of Attorney on 04.09.1990. Original title deed
and Rin Pustika must have been handed over in his
presence. How and why the original sale deed of 1966
and Rin Pustika of Sushila Devi were in possession of
the plaintiffs-appellants had not been explained by
the defendants, nor did they dispute that the 1966
CIVIL APPEAL NO(S). 2845/2015 ETC.ETC. Page 41 of 55
sale deed and the Rin Pustika in the name of Sushila
Devi were forged and fabricated documents. This
clearly shows that the transaction which took place
on 30.08.1990 was valid transaction, the full sale
consideration was paid, and it is only thereafter that
the seller would part with the original title deed and
the Rin Pustika and hand them over to the
purchasers.
6. POSSESSION
32. A purchaser who has paid the full consideration and
received the original title deeds from the seller would
have taken possession under normal circumstances.
Any possession taken by any other party thereafter
would be unauthorised and illegal. Therefore, the
finding of the High Court regarding plaintiff not being
in possession and therefore the suit being barred in
law, is untenable. It is relevant to mention here that
the plaintiffs-appellants had produced Rin Pustika of
the revenue department to show that they had been
paying the land revenue.
7. VIOLATION OF INJUNCTION
33. The plaintiffs-appellants had sought amendments in
the plaint and had expressed their apprehension that
the legal heirs of Sushila Devi, the original
CIVIL APPEAL NO(S). 2845/2015 ETC.ETC. Page 42 of 55
defendants, were likely to alienate the land in favour
of the third party. Upon their application, the Trial
Court had passed an interim injunction order on
04.12.2000, restraining the defendants from
alienating the property in dispute. Despite the same
and having full knowledge of the interim injunction
order, the defendant nos. 2, 3, 4 and 5 executed four
separate sale deeds on 18.01.2001 in favour of third
parties, who were later on impleaded in the suit as
defendant nos.7,8,9 and 10. This conduct by the
original defendants (legal heirs of Sushila Devi)
clearly indicates their desperation, as they wanted to
further gain financial benefits by hook or by crook
and, therefore, alienated the property in violation of
the injunction order. Such sale deed would be a void
document. The conduct of the original defendants
disentitles them from any discretion being exercised
in their favour, as they blatantly and knowingly
violated the interim injunction order. The High Court
failed to take note of this conduct of the original
defendants.
34. Learned counsel for the respondents have relied upon
a number of authorities. However, we find that none
of the authorities cited by the respondents really
extend any help or benefit to them as the same are
CIVIL APPEAL NO(S). 2845/2015 ETC.ETC. Page 43 of 55
all distinguishable on facts, as would be clear from
the following references in brief:
34.1. The respondents have relied upon the judgement
of this Court in Thiruvengadam Pillai (Supra) to
argue that the plaintiffs failed to prove the
execution of the Agreement to Sell dated
30.08.1990 and the General Power of Attorney
dated 04.09.1990. In that case, the Court
dismissed the suit for specific performance
because the agreement was written on old stamp
papers purchased years earlier, the attesting
witnesses were close relatives of the plaintiff and
one was not examined, possession was not
delivered despite being stated in the agreement,
and there was no expert verification of the thumb
impression alleged to be that of the defendant. The
plaintiff also failed to discharge the burden of
proof, and the appellate court wrongly shifted this
burden to the defendants. However, the present
case is distinguishable on key facts. Here, the
Agreement to Sell was executed on appropriate
stamp paper without irregularities, and the
plaintiffs diligently discharged their burden by
providing credible evidence, including the
testimony of PW-1 (either the plaintiffs or their
Power of Attorney holder with personal knowledge)CIVIL APPEAL NO(S). 2845/2015 ETC.ETC. Page 44 of 55
and the attesting witness PW-2, who was not a
close relative but an independent witness.
Moreover, the plaintiffs produced the original title
deed of 1966 and the Rin Pustika, handed over by
Sushila Devi—a fact not contested by the
defendants—which corroborates the genuineness
of the transaction. An expert handwriting analysis
affirmed the authenticity of Sushila Devi’s
signature, and the defendants’ expert could not
conclude otherwise. Unlike in Thiruvengadam
Pillai (Supra), the plaintiffs in this case were given
possession of the property, have been cultivating
it, and have been paying land revenue.
34.2. The respondents further contended that Sushila
Devi, being an old and illiterate lady, fell into the
category of a pardanashin woman entitled to
special protection under the law, as established in
the case of Mst. Kharbuja Kuer (Supra). In that
case, the Court held that the burden of proving
that a Pardanashin lady understood the contents
of a document lies on the person seeking to
enforce it. However, the facts of the present case
are materially different. Firstly, there is neither
any pleading nor any evidence to suggest that
Sushila Devi was a Pardanashin lady who lived in
CIVIL APPEAL NO(S). 2845/2015 ETC.ETC. Page 45 of 55
seclusion; mere old age and illiteracy do not
suffice to classify her as such. She had
independently conducted property transactions in
the past, including the purchase of the suit
property in 1966, demonstrating her active
involvement in legal and financial matters.
Secondly, the plaintiffs have adequately
discharged any burden of proof by providing
credible evidence that the contents of the
Agreement to Sell and the General Power of
Attorney were duly explained to her. The attesting
witness, PW-2, testified that the documents were
read over and explained to Sushila Devi before she
affixed her signature. Additionally, her son,
Kailash Aggarwal, was present during the
execution of these documents, and there is no
allegation that he raised any objections or that
any undue influence was exerted. The defendants
have failed to provide any evidence to the contrary
or to establish that Sushila Devi did not
understand the nature of the transactions.
Therefore, the reliance on the principles laid down
in Mst. Kharbuja Kuer (Supra) is misplaced, as
the circumstances of that case are distinguishable
from the present one, and the respondents’
argument on this ground cannot be sustained.
CIVIL APPEAL NO(S). 2845/2015 ETC.ETC. Page 46 of 55
34.3. The respondents have also relied upon the
judgment in Krishna Mohan Kul (supra),
involving an old, illiterate, and physically
incapacitated person who allegedly executed a
deed of settlement. This Court held that when an
aged, illiterate, and infirm person is involved, the
burden of proving the validity of the document lies
on the beneficiary, who must demonstrate that
the executant was in a fit state to understand the
transaction and that no undue influence was
exerted. However, in the present case, while
Sushila Devi was elderly and illiterate, there is no
evidence to suggest that she was physically or
mentally incapacitated at the time of executing the
Agreement to Sell and the General Power of
Attorney. Unlike in Krishna Mohan Kul (supra),
where the executant was over 100 years old,
paralytic, and bedridden, Sushila Devi was
capable of managing her affairs and had a history
of independently conducting property
transactions.
34.4. The respondents have also relied upon the
judgment in Vidyadhar Vishnupant (supra) to
contend that the plaintiffs’ absence from the
witness box prevents them from proving the
CIVIL APPEAL NO(S). 2845/2015 ETC.ETC. Page 47 of 55
execution of the Agreement to Sell dated
30.08.1990, as such execution must be attested
by someone present at the time. In Vidyadhar
Vishnupant (supra), this Court observed that
when a party refrains from testifying and avoids
cross-examination, it may lead to an adverse
inference against that party’s case. However, the
circumstances of the present case are significantly
different. The plaintiffs’ interests were represented
by their Power of Attorney holders, namely Shri
K.D. Maheshwari and Shri Pankaj Maheshwari.
Shri K.D. Maheshwari is himself one of the
purchasers and a plaintiff in his own suit. He
appeared as PW-1 in all the suits, either as the
plaintiff or as the Power of Attorney holder for the
other plaintiffs. He had personal, firsthand
knowledge of the execution of the Agreement to
Sell, being directly involved in the transaction and
present at the time of its execution. His detailed
testimony provided substantial evidence
supporting the plaintiffs’ claims. Similarly, Shri
Pankaj Maheshwari acted as the Power of Attorney
holder for the plaintiff Bharat Kumar Lathi and
also appeared as a witness. He had personal
knowledge of the transaction and corroborated the
execution of the Agreement to Sell and the
CIVIL APPEAL NO(S). 2845/2015 ETC.ETC. Page 48 of 55
payment of the consideration. Both Shri K.D.
Maheshwari and Shri Pankaj Maheshwari were
intimately connected with the transaction and
were competent to testify about the facts in issue.
Moreover, one of the plaintiffs did enter the
witness box in his own suit, further reinforcing the
plaintiffs’ case. Unlike in Vidyadhar Vishnupant
(supra), where the defendant deliberately avoided
the witness box, here the plaintiffs ensured that
competent and directly involved witnesses
testified on their behalf.
34.5. The respondents have cited several other
judgments to argue that the plaintiffs’ failure to
personally testify is detrimental to their case. In
Janki Vashdeo (supra), this Court held that a
power of attorney holder cannot depose on behalf
of the principal regarding matters within the
principal’s personal knowledge. In Rajesh Kumar
(supra), the Court reiterated that non-appearance
of the plaintiff in the witness box can be fatal in
specific performance suits. However, the
circumstances in the present case are distinct as
already discussed above. Therefore, the principles
from the cited cases do not apply here, as the
plaintiffs have adequately proved their case
CIVIL APPEAL NO(S). 2845/2015 ETC.ETC. Page 49 of 55
through competent witnesses with personal
knowledge.
34.6. The respondents have then referred to the
judgment in Thomson Press (India) Ltd. (supra)
to argue that the Agreement to Sell lacks specific
boundaries of the land, rendering it vague and
unenforceable, and that possession has always
remained with Sushila Devi and her heirs, now
with the transferees, as held by the High Court.
They further contend that the sale deeds executed
during the pendency of the proceedings are not
void but subject to adjudication. However, the
circumstances and legal issues in Thomson Press
(India) Ltd. (Supra) are not comparable to the
present case. In Thomson Press (India) Ltd.
(Supra), this Court dealt with the impleadment of
a transferee pendente lite in a suit for specific
performance and discussed the doctrine of lis
pendens under Section 52 of the Transfer of
Property Act. This Court held that a transferee
pendente lite is bound by the outcome of the
litigation and may be added as a party to the suit,
especially if the transfer was made with knowledge
of the pending proceedings and in violation of an
injunction. In contrast, the present case revolves
CIVIL APPEAL NO(S). 2845/2015 ETC.ETC. Page 50 of 55
around the enforceability of the Agreement to Sell
dated 30.08.1990, which sufficiently identifies the
property through detailed descriptions, including
khasra numbers, area, and location. The absence
of explicit boundary details does not render the
agreement vague or unenforceable, as the
property can be clearly identified from the
information provided. Moreover, the plaintiffs
have been in possession of the suit property since
the execution of the Agreement to Sell, actively
cultivating it and paying land revenue, which
contradicts the respondents’ claim that
possession remained with Sushila Devi and her
heirs.
34.7. Regarding the sale deeds executed during the
pendency of the suit, while such transfers are not
void ab initio, they are subject to the doctrine of lis
pendens and cannot prejudice the plaintiffs’ rights
under the prior Agreement to Sell. The transferees
acquire the property subject to the outcome of the
pending litigation and cannot defeat the plaintiffs’
claim for specific performance. Therefore, the legal
principles established in Thomson Press (India)
Ltd. (Supra) do not apply to the present case, and
the respondents’ arguments based on that
CIVIL APPEAL NO(S). 2845/2015 ETC.ETC. Page 51 of 55
judgment do not hold in light of the facts and
circumstances here.
34.8. Similarly, the respondents have also relied upon
the judgment in Yogesh Goyanka v. Govind
(supra) where this Court dealt with the
impleadment of a transferee pendente lite who had
notice of the pending litigation. In that case, the
Court held that while transfers made during the
pendency of a suit are not void ab initio under
Section 52 of the Transfer of Property Act, the
transferee’s rights are subservient to those of the
parties in the litigation. The Court allowed the
impleadment of the transferee to protect his
interests, especially when there was a possibility
of collusion between the original parties. However,
the facts and legal issues in Yogesh Goyanka are
different from the present case. In Yogesh
Goyanka, the Court addressed whether a
transferee pendente lite could be impleaded in a
suit to protect his interests. In contrast, the
present case involves the enforceability of the
Agreement to Sell dated 30.08.1990 and whether
the subsequent sale deeds executed during the
pendency of the suit affect the plaintiffs’ rights.
While the respondents argue that the sale deeds
are not void but subject to adjudication, the
CIVIL APPEAL NO(S). 2845/2015 ETC.ETC. Page 52 of 55
doctrine of lis pendens ensures that such
transfers cannot prejudice the plaintiffs’ prior
contractual rights.
35. Having thoroughly examined the judgments and
authorities cited by the respondents, it is imperative
to consider the primary precedents relied upon by the
appellants. We will analyse their applicability to the
present case.
35.1. The appellants have relied upon the judgment in
Pawan Kumar Gupta v. Rochiram Nagdeo10 to
assert that when fraud and misrepresentation are
alleged by the defendants, the burden of proof lies
upon them to substantiate such claims. In the
present case, the defendants contended that the
Agreement to Sell dated 30.08.1990 was forged
and fraudulent. However, they failed to provide
credible evidence to support these allegations. In
Pawan Kumar Gupta (supra), this Court held that
when a party alleges fraud or that a transaction is
benami, the onus is on that party to prove the
allegation. The Court emphasized that the
apparent tenor of a document is presumed to be
true unless disproved by the party alleging
otherwise. The burden does not shift to the party
10
AIR 1999 SC 1823
CIVIL APPEAL NO(S). 2845/2015 ETC.ETC. Page 53 of 55
relying on the document to prove its validity
beyond its face value. Pawan Kumar Gupta
(supra) reinforces the appellants’ position and
supports their claim for specific performance of
the contract.
35.2. The appellants have further relied upon the
judgment in Man Kaur (supra) to substantiate the
argument that a power of attorney holder can
depose on behalf of the principal in respect of acts
and transactions that the attorney has personal
knowledge of. In this case, this Court clarified that
while an attorney holder can definitely testify
regarding the acts they have personally carried
out on behalf of the principal, they cannot testify
about matters requiring personal knowledge of the
principal, such as the principal’s state of mind or
readiness and willingness to perform obligations
under a contract. In the present case, the power
of attorney K.D. Maheshwari was himself one of
the vendees and all the transactions in the six
suits having taken place simultaneously on the
same day, same time and at the same place he was
well aware personally of all the facts.
36. The subsequent purchasers and the intervenors, who
had further purchased the property from third
CIVIL APPEAL NO(S). 2845/2015 ETC.ETC. Page 54 of 55
parties, will only get rights of their vendors. And if the
vendors did not have any rights, the vendees cannot
be said to be in any better position.
37. For all the reasons recorded above, the appeals are
allowed. The impugned judgment and order of the
High Court is set aside in all six appeals, and that of
the Trial Court is restored. As the subsequent
purchasers also joined in this litigation by filing
impleadment/intervention application(s), we allow
the same. We further direct that all the respondents,
including the newly added respondents, shall execute
the sale deed in favour of the appellants as per the
directions of the Trial Court. Appellants to provide
amended copy of the memo of parties within four
weeks.
…………………………………………J.
(VIKRAM NATH)
…………………………………………J.
(PRASHANT KUMAR MISHRA)
NEW DELHI
NOVEMBER 12, 2024
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