2024 INSC 491 Civil Appeal No. 6782 of 2013 Page 1 of 24

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 6782 OF 2013

MAHARAJ SINGH & ORS. …APPELLANTS

VERSUS

KARAN SINGH (DEAD)

THR. LRS. & ORS. …RESPONDENTS

J U D G M E N T

ABHAY S. OKA, J.

1. This appeal is at the instance of the original third,

second, and fourth defendants. The first and second

respondents are the original plaintiffs. The third respondent is

the mother of the deceased original first defendant. For

convenience, we are referring to the parties according to their

status in the suit.

FACTUAL ASPECT

2. Reference to a few factual aspects will be necessary. The

first defendant executed a registered agreement for sale dated

7

th December 1981 by which he agreed to sell his Bhumidhari

land measuring 2.90 acres of Khasra no. 48 (for short, ‘the suit

property’) at village-Jauniwala, Tehsil-Kashipur, District-

Nainital in favour of the plaintiffs for the consideration of Rs.

Civil Appeal No. 6782 of 2013 Page 2 of 24

20,300/-. There was a recital in the registered agreement dated

7

th December 1981 (for short, ‘the suit agreement’) that the first

defendant had received a sum of Rs. 7,000/- as advance and

the balance consideration was payable at the time of execution

of the sale deed. The first defendant agreed to execute the sale

deed within three years from the date of the suit agreement.

According to the plaintiffs' case, requests were made orally and

by sending notices to the first defendant to execute the sale

deed. It is pleaded in the plaint that the first defendant refused

to accept notices.

3. On 6

th September 1983, the first defendant sold 1.60

acres out of the suit property to the second and third

defendants by a registered sale deed. By another sale deed

dated 12

th December 1983, the first defendant sold the

remaining part of the suit property to the second to fourth

defendants. We must note that the suit was filed on 17

th

December 1983, and the averments regarding the subsequent

alienations were incorporated by the amendment made to the

plaint in terms of the order dated 28

th July 1984. The case

made out in the plaint is that the subsequent sale deeds are

collusive. The prayer in the suit was for specific performance of

the suit agreement with a direction to the defendants to hand

over possession of the suit property to the plaintiffs and to

execute a sale deed in respect of the suit property in their

favour.

4. The defendants, including the legal representative (Smt.

Bhagwati Devi) of the original first defendant, filed separate

Civil Appeal No. 6782 of 2013 Page 3 of 24

written statements. In the written statement filed by the legal

representative of the first defendant, it was contended that the

suit agreement was fictitious. In the written statement filed by

the second and third defendants, it was pleaded that the suit

agreement is a forged document which was never to be acted

upon. It is pointed out that the first plaintiff - Karan Singh, and

the first defendant were relatives. The plaintiffs never paid any

money to the first defendant.

5. The first plaintiff was examined as a witness. The second

plaintiff, Murari Singh, did not support the first plaintiff. He

deposed in favour of the defendants. He stated on oath that the

suit agreement was made only to ensure that the first

defendant did not alienate the suit land. He stated that the first

defendant was his relative. He stated that the first plaintiff was

related to him and was a well-known person. The first

plaintiff’s name was included as the purchaser in the suit

agreement to deter the first defendant. He stated that he and

the first plaintiff never demanded execution of the sale deed

from the first defendant. The second plaintiff proceeded to state

that he had not filed the suit, and the signature shown to him

on the vakalatnama was of someone else. Subsequently, the

second plaintiff filed an affidavit stating that the first defendant

had several bad habits and , therefore, there was an

apprehension that he would sell the suit property.

FINDINGS OF THE COURTS

6. The Trial Court held that the execution of the suit

agreement was proved. Relying upon Section 92 of the Indian

Civil Appeal No. 6782 of 2013 Page 4 of 24

Evidence Act, 1872 (for short, ‘the Evidence Act’), the learned

Trial Judge held that evidence contrary to the contents of the

suit agreement could not be adduced and was not admissible

in evidence. The learned Trial Judge held that in view of the

provisions of the Uttar Pradesh Civil Laws (Reforms and

Amendment) Act, 1976 , which came into force on 31st

December 1976, an agreement for sale was compulsorily

registrable in the State at the relevant time. Therefore, the

learned Trial Judge held that in view of the explanation to

Section 3 of the Transfer of Property Act, 1882 (for short, ‘the

TP Act’), the second to fourth defendants shall be deemed to

have a notice of the execution of the suit agreement. The

learned Judge held that it was a duty of the second to fourth

defendants to take a search in the office of the Sub-Registrar

to ascertain whether there was any prior transfer. Therefore,

the learned Trial judge held that the second to fourth

defendants could not be held to be bona fide purchasers for

value received. The finding on the issue of readiness and

willingness was also recorded in favour of the plaintiffs.

Therefore, the Trial Court passed a decree for the specific

performance, directing all the defendants to execute the sale

deed and deliver possession of the suit property to the

plaintiffs. In an appeal preferred by the second to fourth

defendants, the Additional District Judge, Nainital, confirmed

all the findings of the Trial Court. The Additional District Judge

dismissed the appeal. A second appeal was preferred by the

second to fourth respondents. The second appeal has been

dismissed by the impugned judgment.

Civil Appeal No. 6782 of 2013 Page 5 of 24

ORDERS OF THIS COURT

7. On 26

th October 2010, this Court issued notice. The order

of this Court reads thus:

“Mr. K.B. Sinha, senior advocate appearing

for the petitioners submits that after

coming into force of the Uttaranchal (The

Uttar Pradesh Zamindari Abolition and

Land Reforms Act, 1950) (Adaptation and

Modification Order, 2001) (Amendment)

Act, 2003, the sale of the suit land in terms

of the decrees of the Court would be

violative of the provisions of the Act

because the plaintiff is not an agriculturist.

Issue notice.

In the meanwhile, there shall be stay of

operation of the impugned decree.”

On 12

th August 2013, leave was granted. This Court granted a

stay to the operation of the impugned decrees on 26

th October

2010.

SUBMISSIONS

8. The learned senior counsel appearing for the second to

fourth defendants submitted that the three Courts refused to

consider the submission that the suit agreement was sham and

bogus. By pointing out Sections 91 and 92 of the Evidence Act,

he urged that the provisions did not prevent the defendants

from leading evidence to show that the suit agreement was

bogus or sham. He relied on the Privy Council's decision in the

Civil Appeal No. 6782 of 2013 Page 6 of 24

case of Tyagaraja Mudaliyar and Anr. v. Vedathanni

1. He

submitted that Sections 91 and 92 of the Evidence Act do not

exclude evidence on the question of whether the parties had

agreed to contract on the terms set forth in the document. He

also relied upon a decision of this Court in the case of

Krishnabai Bhritar Ganpatrao Deshmukh v. Appasaheb

Tuljaramarao Nimbalkar & Ors.

2. He submitted that it was

brought on record in the depositions of the second plaintiff who

was the uncle of the first defendant, and Bhagwati Devi, the

mother of the first defendant, that the first defendant had many

vices. Bhagwati Devi was apprehensive that the first defendant

would sell the property to fund his bad lifestyle. The second

plaintiff, Murari Singh, was her brother; therefore, she

approached Murari Singh to prevent the first defendant from

selling the suit property. The second plaintiff, Murari Singh,

brought his friend, the first plaintiff. Thereafter, the suit

agreement was executed to deter the first defendant from

selling the property. He submitted the specific contention that

the suit agreement was a sham document which was not to be

acted upon has been brushed aside by the three Courts.

9. He submitted that the first plaintiff filed the suit within a

few days after the first defendant executed a sale deed on 12th

December 1983 in favour of the second to fourth defendants.

The learned senior counsel further submitted that the second

to fourth defendants are bona-fide purchasers as the suit

1

ILR (1936) 59 Mad 446 : 1935 SCC OnLine PC 68

2

(1979) 4 SCC 60

Civil Appeal No. 6782 of 2013 Page 7 of 24

agreement is sham and bogus. He submitted that the defence

that the plaintiffs were not ready and willing to perform their

part of the suit agreement is also available to the defendants

claiming to be subsequent purchasers through the vendor. The

learned senior counsel relied upon a decision of this Court in

the case of B. Vijaya Bharathi v. P. Savitri & Ors.

3, and

submitted that the plaintiffs are disentitled to relief of specific

performance as they have not prayed in the plaint for setting

aside or cancelling the subsequent sale deeds. Learned senior

counsel also relied upon Section 154-B of the Uttaranchal (The

Uttar Pradesh Zamindari Abolition and Land Reforms Act,

1950) (Adaption and Modification order, 2001) (Amendment)

Ordinance, 2003 (for short, ‘the Zamindari Abolition Act”). He

submitted that as the 1

st plaintiff is not an agriculturist within

the meaning of Section 3(a) thereof, in view of Section 154-B, a

sale deed cannot be executed in terms of the suit agreement.

He also pointed out that the legal representatives of the first

respondent (first Plaintiff) have not chosen to contest the

appeal despite service of notice. Therefore, they are not

interested in contesting the appeal.

QUESTIONS FOR CONSIDERATION

10. After having considered the submissions of the learned

counsel appearing for the appellants, we find that the following

questions arise:

a) Can the contention that the suit agreement was sham

and bogus and not intended to be acted upon be allowed

3

(2018) 11 SCC 761

Civil Appeal No. 6782 of 2013 Page 8 of 24

to be raised notwithstanding Sections 91 and 92 of the

Evidence Act?

b) Was the suit agreement sham and bogus and not

intended to be acted upon?

c) Were the second to fourth defendants bona fide

purchasers for value without notice of the suit

agreement?

d) Whether, in view of the decision of this Court in the case

of B. Vijaya Bharathi

3, the plaintiffs are not entitled to

a decree of specific performance in the absence of any

prayer for cancellation of the two subsequent sale deeds?

e) Do the provisions of the Zamindari Abolition Act create a

bar on the execution of the sale deed in terms of the suit

agreement?

f) Whether the plaintiffs are entitled to a decree of specific

performance?

FIRST TWO QUESTIONS – (a) AND (b)

11. Now, we come to the first two questions. Right from the

decision of the Privy Council in the case of Tyagaraja

Mudaliyar

1 the law is well settled. Section 91 of the Evidence

Act excludes oral evidence of the terms of the written document

by requiring those terms to be proved by the document itself.

Section 92 excludes oral evidence for contradicting, varying,

adding to or subtracting to such terms. These two sections do

not prevent parties from adducing evidence on the issue of

Civil Appeal No. 6782 of 2013 Page 9 of 24

whether the parties to the documents had agreed to contract

on the terms set forth in the document.

12. Coming to the facts of the case, firstly, we must refer to

the pleadings of the legal representative of the first defendant.

In paragraph 11 of her written statement, she raised the

following contention:

“……………………………………………… …

11. That the real facts are that plaintiff

Murari Singh is the brother of answering

respondent and Karan Singh is his

friend. So, under fear and making the

pressure on Preetam Singh, a fictitious

agreement was prepared by plaintiff

Murari Singh without any consideration

in order to deter late Preetam Singh, so

that the should not sale the land. Neither

this agreement was acted upon nor was

disclosed any time. The said amount for

consideration, written in the agreement,

is shown at very low price from the

market price.

………………………………………………… ”

Thus, the legal representative of the first defendant did not

plead that the first defendant was addicted to several vices and

that to prevent him from selling the suit property for supporting

his bad lifestyle, the suit agreement was executed. It is merely

stated that the second plaintiff prepared a fictitious agreement

without any consideration to deter the first defendant from

selling the land. It is not pleaded that as the first plaintiff was

an influential person, he was brought into the picture to deter

Civil Appeal No. 6782 of 2013 Page 10 of 24

the first defendant. The second and third defendants filed a

written statement. The contention raised by them in the written

statement is entirely different. In paragraph 12 of the written

statement, they pleaded thus:

“…………………………………………………

12. That the alleged agreement to sale

dated 17.12.1981 is a forged document

and was never acted upon. The plaintiff

no. 1 and Sh. Pritam Singh are relative

to each other. The plaintiffs are the

resident of some other districts. They

never paid any money. They got prepared

a forged documents colluding with some

persons of their party. The agreement to

sale is illegal and the plaintiffs are not

entitled of any relief on the basis of this

forged document.

………………………………………………… ”

The legal representative of the first defendant did not dispute

that the first defendant signed the agreement. However, the

other defendants raised a contention that the suit agreement

was a forged document. The second to fourth defendants did

not plead anything about the object of getting the agreement

for sale executed from the first defendant. The case that the

first defendant was addicted to vices and that with a view to

deter him from selling the suit property, the agreement for sale

was executed, was pleaded for the first time by the mother of

the first defendant in her evidence. Even the allegation that the

first plaintiff was joined as a purchaser to put pressure on the

deceased - the first defendant was made by her for the first time

Civil Appeal No. 6782 of 2013 Page 11 of 24

in her evidence. Thus, the contention that the deceased-first

defendant was addicted to vices was never raised in the written

statements and the same has come by way of an afterthought

in the evidence of the mother of the first defendant. Moreover,

the stand of the second to fourth defendants in their written

statement is that the suit agreement was forged and was

prepared by the plaintiffs and some persons of their party.

Therefore, in the facts of the case, it is very difficult to accept

the contention that the suit agreement was got executed from

the first defendant with the object to deter him from selling the

suit property to meet the demands of his bad lifestyle. Hence,

the suit agreement cannot be held as bogus or sham.

ON QUESTION – (c)

13. The three Courts concurrently found that under the Uttar

Pradesh Civil Laws (Reforms and Amendment) Act 1976, clause

(v) of Section 17(2) of the Registration Act 1908 was amended,

which made an agreement for the sale of an immovable

property, a compulsorily registerable document in the State.

On this aspect, no arguments have been canvassed by the

appellants. Therefore, in view of explanation 1 to Section 3 of

the TP Act, the second to fourth defendants shall be deemed to

have knowledge of the suit agreement, which was duly

registered. It cannot be said that the second to fourth

defendants had no knowledge of the suit agreement in view of

the constructive notice. It is not their case that they took a

search in the office of the Sub-Registrar before getting the sale

deeds in their favour. Hence, it cannot be said that they paid

Civil Appeal No. 6782 of 2013 Page 12 of 24

money in good faith to the first Defendant. Therefore, the

second to fourth defendants can never be held to be bona-fide

purchasers who have paid consideration in good faith without

the notice of the suit agreement.

ON QUESTION (d)

14. Now, we deal with another argument that the plaintiffs

ought to have prayed in the suit to cancel the subsequent sale

deeds executed by the first defendant. On this aspect, the law

has been laid down by a Bench of three Hon’ble Judges of this

Court in the case of Lala Durga Prasad & Ors. v. Lala Deep

Chand & Ors.

4,. Paragraphs 40 to 42 of the said decision read

thus:

“40. First, we reach the position that the title

to the property has validly passed from the

vendor and resides in the subsequent

transferee. The sale to him is not void but only

voidable at the option of the earlier “contractor”.

As the title no longer rests in the vendor it

would be illogical from a conveyancing point of

view to compel him to convey to the plaintiff

unless steps are taken to revest the title in him

either by cancellation of the subsequent sale or

by reconveyance from the subsequent

purchaser to him. We do not know of any case

in which a reconveyance to the vendor was

ordered but Sulaiman, C.J. adopted the other

course in Kali Charan Singh v. Janak Deo

Singh [Kali Charan Singh v. Janak Deo Singh,

AIR 1932 All 694 : 1932 SCC OnLine All 154] .

He directed cancellation of the subsequent sale

4

(1953) 2 SCC 509

Civil Appeal No. 6782 of 2013 Page 13 of 24

and conveyance to the plaintiff by the vendor in

accordance with the contract of sale of which

the plaintiff sought specific performance. But

though this sounds logical the objection to it is

that it might bring in its train complications

between the vendo r and the subsequent

purchaser. There may be covenants in the deed

between them which it would be inequitable to

disturb by cancellation of their deed.

Accordingly, we do not think that is a desirable

solution.

41. We are not enamoured of the next

alternative either, namely, conveyance by the

subsequent purchaser alone to the plaintiff. It

is true that would have the effect of vesting the

title to the property in the plaintiff but it might

be inequitable to compel t he subsequent

transferee to enter into terms and covenants in

the vendor's agreement with the plaintiff to

which he would never have agreed had he been

a free agent; and if the original contract is

varied by altering or omitting such terms the

court will be remaking the contract, a thing it

has no power to do; and in any case it will no

longer be specifically enforcing the original

contract but another and different one.

42. 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

Civil Appeal No. 6782 of 2013 Page 14 of 24

to the plaintiff. This was the course followed

by the Calcutta High Court

in Kafiladdin v. Samiraddin [Kafiladdin v.

Samiraddin, AIR 1931 Cal 67 : 1930 SCC

OnLine Cal 46] and appears to be the English

practice. See Fry on Specific Performance ,

6th Edn., p.90,

Para207;also Potter v. Sanders [Potter v. Sa

nders, (1846) 6 Hare 1 : 67 ER 1057] . We

direct accordingly.”

(emphasis added)

15. Reliance is placed by the appellants on the decision of

this Court in the case of B. Vijaya Bharathi

3. In paragraph 17

of the said decision, this Court held thus:

“17. It must also be noted that though

aware of two conveyances of the same

property, the plaintiff did not ask for

their cancellation. This again, would

stand in the way of a decree of specific

performance for unless the sale made by

Defendant 1 to Defendant 2 , and

thereafter by Defendant 2 to Defendant

3 are set aside, no decree for specific

performance could possibly follow. While

Mr Rao may be right in stating that mere

delay without more would not disentitle his

client to the relief of specific performance,

for the reasons stated above, we find that

this is not such a case. The High Court was

clearly right in finding that the bar of

Section 16(c) was squarely attracted on the

facts of the present case, and that

therefore, the fact that Defendants 2 and 3

may not be bona fide purchasers would not

Civil Appeal No. 6782 of 2013 Page 15 of 24

come in the way of stating that such suit

must be dismissed at the threshold

because of lack of readiness and

willingness, which is a basic condition for

the grant of specific performance.”

(emphasis added)

A bench of two Hon’ble Judges has rendered this decision.

Unfortunately, the attention of the Bench was not invited to

binding precedent in the form of a decision of a larger bench in

the case of Lala Durga Prasad & Ors.

4. Hence, the decision

in the case of B. Vijaya Bharathi

3 is not a binding precedent.

Therefore, there was no requirement to make a prayer in the

plaint for cancellation or setting aside the subsequent sale

deeds.

16. Clause (a) to (c) of Section 19 of the Specific Relief Act

read thus:

“19. Relief against parties and persons

claiming under them by subsequent title.—

Except as otherwise provided by this

Chapter, specific performance of a

contract may be enforced against—

(a) either party thereto;

(b) any other person claiming under him

by a title arising subsequently to the

contract, except a transferee for value

who has paid his money in good faith

and without notice of the original

contract;

(c) any person claiming under a title which,

though prior to the contract and known to

Civil Appeal No. 6782 of 2013 Page 16 of 24

the plaintiff, might have been displaced by

the defendant;

(d)…………………………………………………

(e)………………………………………………… ”

(emphasis added)

In view of clause (b) of Section 19, the defendants who are

claiming under the sale deeds executed after the execution of

the suit agreement can be subjected to a decree of specific

performance as the suit agreement can be enforced specifically

against such defendants unless they are bona-fide purchasers

without the notice of the original contract. When, in a given

case, the defendants, who are subsequent purchasers, fail to

prove that they entered into the sale deed in good faith and

without notice of the suit agreement, in view of Section 19(b),

a decree for specific performance can be passed against such

defendants. Therefore, in such a case where Section 19(b) is

applicable, under the decree of specific performance, the

subsequent purchasers can be directed to execute the sale

deed along with the original vendor. There is no necessity to

pray for the cancellation of the subsequent sale deeds.

ON QUESTION – (e)

17. We have perused Section 154 -B of the Zamindari

Abolition Act. Sub-section (1) prohibits the sale or transfer of

agricultural lands to a person who is not an agriculturalist.

Clause (h) of sub-section (2) of Section 154-B permits the sale

of agricultural land to a non-agriculturalist with the permission

of the State Government for the purposes specified in clause (i)

Civil Appeal No. 6782 of 2013 Page 17 of 24

to (v) of clause (h). What is prohibited is the sale of agricultural

land to a non-agriculturalist. In view of Section 54 of the TP

Act, an agreement for sale does not transfer the property

subject matter of the agreement to the purchaser. It does not

create any interest in the property subject matter of the

agreement. Therefore, the embargo created by sub-section (1)

of Section 154-B will apply only to the execution of the sale

deed and not to the execution of the agreement for sale.

18. Now the question is whether the vendor and the persons

claiming through him can be directed to apply for permission

in accordance with clause (h) of sub-section (2) of Section 154-

B to sell and whether a decree for execution of the sale deed

can be made contingent upon the grant of permission to sell.

The law on this aspect is no longer res integra. In the case of

Rojasara Ramjibhai Dahyabhai v. Jani Narottamdas

Lallubhai and another

5, in paragraphs 12 to 14, this Court

held thus:

“12. Although Rana Mohabat Singh having

failed to fulfil the terms of his contract with

the appellant and execute a sale deed in his

favour might have rendered the contract

between them incapable of performance, but

with the extinction of the title of Rana

Mohabat Singh and the conferral of the rights

of an occupant on the appellant, the property

became transferable subject, of course, to the

express covenant on the part of the appellant

to do all things necessary to give effect to the

agreement. Here, the suit banakhat (Ex. 25)

embodies an express covenant to that effect.

5

(1986) 3 SCC 300

Civil Appeal No. 6782 of 2013 Page 18 of 24

There is always in such contracts an

implied covenant on the part of the vendor

to do all things necessary to give effect to

the agreement, including the obtaining of

the permission for the transfer of the

property. The principles on which a term

of this nature may be implied in contracts

are well-settled. It is enough to refer to

Halsbury's Laws of England, Vol. 8, 3rd Edn.,

p. 121 where the principles are summarised

as follows:

“In construing a contract, a term or condition

not expressly stated may, under certain

circumstances be implied by the court, if it is

clear from the nature of the transaction or

from something actually found in the

document that the contracting parties must

have intended such a term or condition to be

a part of the agreement between them. Such

an implication must in all cases be founded

on the presumed intention of the parties and

upon reason, and will only be made when it

is necessary in order to give the transaction

that efficacy that both parties must have

intended it to have, and to prevent such a

failure of consideration as could not have

been within the contemplation of the parties.”

Chitty on Contracts Vol. 1, 23rd Edn., paras

694-95 points out that a term would be

implied if it is necessary in the business

sense, to give efficacy to the contract.

13. In this context, reference may be made to

the decision of the Privy Council in Motilal v.

Nanhelal [AIR 1930 PC 287 : (1930) 57 IA

333] . There, the facts were these. In that

case, the plaintiff Mst Jankibai entered into

an agreement to purchase from Rajbahadur

Seth Jiwandas of Jabalpur four annas

proprietary share of Mauja Raisalpur

Civil Appeal No. 6782 of 2013 Page 19 of 24

together with the sir and khudkast lands

appurtenant thereto, with cultivating rights

in the sir lands. The property was subject to

the provisions of the Central Provinces

Tenancy Act, 1920. She filed a suit for

specific performance of the said contract. The

Privy Council held that the contract was for a

transfer of the sir lands without reservation

of the right of occupancy, and that the

sanction of the Revenue Officer to the

transfer was necessary under Section 50(1) of

the Act, which was in these terms:

“50. (1) If a proprietor desires to transfer the

proprietary rights in any portion of his sir

land without reservation of the right of

occupancy specified in Section 49, he may

apply to a revenue-officer and, if such

revenue-officer is satisfied that the transferor

is not wholly or mainly an agriculturist, or

that the property is self-acquired or has been

acquired within the twenty years last

preceding, he shall sanction the transfer.”

14. It was contended before the Privy Council

that a decree for specific performance of the

agreement of sale could not be made, because

such performance would necessitate an

application by or on behalf of the vendor to

the Revenue Officer for sanction to transfer

the cultivating rights in the sir land, and that

the court had no jurisdiction to require the

vendor to make such an application. In

repelling the contention, the Privy Council

observed that in view of their construction of

the agreement, namely, that the vendor

agreed to transfer the cultivating rights in the

sir land:

“There was, in Their Lordships' opinion, an

implied covenant on the part of the vendor to

do all things necessary to effect such

Civil Appeal No. 6782 of 2013 Page 20 of 24

transfer, which would include an application

to the Revenue Officer to sanction the

transfer.”

It was further observed that it was not

necessary for their Lordships to decide

whether in that case the application for

sanction to transfer must succeed, but that it

was material to mention that no facts were

brought to their Lordships' notice which

would go to show that there was any reason

why such sanction should not be granted.

After making the said observations, the

Privy Council held that in those

circumstances the court had jurisdiction

to enforce the contract under the Specific

Relief Act, 1877 and Order 21, Rule 35 of

the Code of Civil Procedure, 1908 by a

decree ordering the vendor to apply for

sanction and to execute a conveyance on

receipt of such sanction. The decision of

the Privy Council in Motilal v. Nanhelal

[AIR 1930 PC 287 : (1930) 57 IA 333]

therefore is an authority for the

proposition that if the vendor agrees to

sell the property which can be transferred

only with the sanction of some

government authority, the court has

jurisdiction to order the vendor to apply

to the authority within a specified period,

and if the sanction is forthcoming to

convey to the purchaser within a certain

time. See also Chandnee Widya Vati

Madden v. C.L. Katial [AIR 1964 SC 978 :

(1964) 2 SCR 495] and R.C. Chandiok v.

Chuni Lal Sabharwal [(1970) 3 SCC 140 :

AIR 1971 SC 1238 : (1971) 2 SCR 573]

where this Court following the Privy

Council decision in Motilal v. Nanhelal

case [AIR 1930 PC 287 : (1930) 57 IA 333]

reiterated the same principle.”

(emphasis added)

Civil Appeal No. 6782 of 2013 Page 21 of 24

Hence, a decree enjoining the defendants to obtain permission

to sell the suit property can be passed as it is their implied

obligation to do so. A decree for the specific performance can

be passed contingent upon the grant of the permission.

ON QUESTION – (f)

19. Now, the question is whether the plaintiffs were entitled

to a decree for specific performance. In his deposition, the first

plaintiff has proved the service of notice of demand to the first

defendant. The suit is filed within limitation, and the

defendants did not raise a plea of delay and laches. There are

concurrent findings of the three Courts on the issue of the

readiness and willingness shown by the first plaintiff. There is

no reason to disturb the said findings. Now, the question is,

what is the effect of the failure of the second plaintiff to support

the first plaintiff and his conduct of supporting the defendants?

In the facts of the case, the answer lies in the submissions

made by the second to fourth defendants before the High Court.

In paragraph 9 of the judgment, the High Court has recorded

the following submissions made by the counsel for the second

to fourth defendants:

“9. The learned senior counsel for the

appellants submitted that the plaintiff no.2

Murari Singh did not file the suit nor had

signed the vakalatnama and that the said

plaintiff had admitted this fact in his

deposition, consequently, the suit was not

maintainable. It was further submitted that

the percentage of share between the

Civil Appeal No. 6782 of 2013 Page 22 of 24

plaintiffs were not defined in the

agreement to sell and, consequently,

under Section 45 of the Transfer of

Property Act, the plaintiffs would be

deemed to have equal shares, namely, 50

percent. The learned senior counsel for

the appellants contended that since

Murari Singh did not institute the suit, the

decree for specific performance for the

whole land, which was undivided could not

have been decreed by the trial court and,

consequently, to that extent, the decree

passed by the trial court was erroneous .

……………………………………………………… ”

(emphasis added)

20. In our view, as the second plaintiff was not interested in

getting the specific performance, the decree ought to have been

restricted to the undivided one-half share in the suit property

in favour of only the first plaintiff.

21. Accordingly, we partly allow the appeal by passing the

following order:

(a) We modify the impugned decree by directing the legal

representative of the first defendant and second to fourth

defendants to execute a sale deed in favour of the first

plaintiff (Karan Singh) only to the extent of one half

undivided share in the suit property;

(b) The defendants shall join the first plaintiff in applying to

the State Government/Competent Authority for the grant

of permission under clause (h) of sub-section (2) of

Section 154-B of the Zamindari Abolition Act to sell the

Civil Appeal No. 6782 of 2013 Page 23 of 24

one half-undivided share in the suit land to the first

plaintiff within two months from today. It shall be the

obligation of the defendants to apply for the permission

and to do all such things which are necessary to get the

permission;

(c) If the defendants or any of them do not sign and file the

application with relevant documents within the period

mentioned above of two months , the executing Court

shall appoint a Court Commissioner to sign and file the

application on their behalf and to do all such things

which are necessary to get the permission;

(d) If the application for grant of permission is rejected, it will

be open to the first plaintiff to challenge the order of

rejection in accordance with law. If the application for

grant of permission is finally rejected, there shall be a

decree for refund of the sum of Rs. 7,000/- against the

legal representative of the first defendant together with

interest thereon at the rate of 8 per cent per annum from

the date of filing of the suit till the realisation. However,

her liability shall be restricted to the extent of the estate

of the first defendant inherited by her;

(e) If the State Government grants permission, the sale deed

shall be executed in terms of clause (a) by all the

defendants within three months from the date of grant of

the permission;

Civil Appeal No. 6782 of 2013 Page 24 of 24

(f) The suit stands dismissed as far as the second plaintiff is

concerned;

(g) The impugned decree stands modified accordingly;

(h) Even if a sale deed is executed in favour of the first

plaintiff in respect of the one-half undivided share in the

suit property, he will not be entitled to seek possession in

the execution of this decree as he will be at liberty to file

a suit for general partition;

(i) Accordingly, the appeal is partly allowed with no orders

as to cost.

……………………..J.

(Abhay S. Oka)

……………………..J.

(Sanjay Karol)

New Delhi;

July 09, 2024.