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PETITIONER: INDUBEN ASHOKRAO NALVADE(DEAD) BY L.RS.

       Vs.

RESPONDENT: DHIRAJLAL SHIVLAL SURATI & ANR.

DATE OF JUDGMENT14/08/1995

BENCH: MAJMUDAR S.B. (J) BENCH: MAJMUDAR S.B. (J) BHARUCHA S.P. (J) FAIZAN UDDIN (J)

CITATION:  1995 AIR 2486            1995 SCC  Supl.  (3) 541  JT 1995 (6)   299        1995 SCALE  (4)824

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T S.B. Majmudar, J.      Leave granted.      By consent  of learned  advocates of  parties the Civil Appeal is  heard finally  and is  being disposed  of by this judgment. This  appeal arises  out of  the judgment  of High Court of Gujarat dismissing first Appeal No. 803 of 1982 and confirming the judgment and decree dated 2nd May 1981 passed by the  learned civil  Judge, Senior  Division,  Bharuch  in Special Civil  Suit No.22  of 1977. The appellants before us are the  heirs of  original plaintiff  while the respondents are the original defendants. We will refer to the appellants and respondents as plaintiff and defendants respectively for the sake of convenience in the latter part of this judgment.      A few  relevant facts for highlighting the grievance of the plaintiff  are required  to be  noted at the outset. The original plaintiff  Induben  Nalvade  who  died  during  the pendency of  proceedings before  the High  Court and  who is represented by  her heirs, the present appellants, had filed Special Civil  Suit No.  22 of  1977 in the Court of learned Civil  Judge,   Senior  Division,   Bharuch   for   specific performance of an agreement dated 16th July 1974 executed by defendants in  her favour  for sale  of  the  suit  property situated at  Darjiwad locality of Ankleshwar town of Bharuch District. Her case is that the defendants are brothers. They are owners  of the  suit house bearing City Survey No. 3112, Municipal No.  443 siturated  in the  aforesaid locality  of Ankleshwar town.  That on 12th March 1974 the defendants had agreed to  sell the  entire ground  floor of  the suit house including the  Chowk and  one attached room to the plaintiff for Rs.12,000/-.  She further  alleged  that  she  paid  Rs. 4,000/- to the defendants by way of earnest money. According to her  the defendants  had agreed  to execute  a registered Sale Deed  in her  favour on  or before 16th August 1974 and

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that she  had to  pay the  remaining amount of Rs.8,000/- at the time  of execution  of the  registered Sale Deed. It was here case that she was occupying a part of the property as a tenant  while   the  other  portion  of  the  house  was  in possession  of  another  tenant.  That  the  defendants  had mortgaged the  suit house  with one  Nanalal  Chhaganlal  of Nainpur Village, Tehsil Mahemdabad of Kera District and they wanted to redeem the suit house. It is her further case that on 16th  July 1974  the defendants came to her and suggested that they  were prepared  to sell  the entire suit house for Rs.16,000/- That  she agreed  to the  above terms and on the same day,  that is,  16th July  1974 she paid Rs.12,000/- in cash to  the defendants. She further alleged that thereafter the defendants had to execute the registered Sale Deed after redeeming the  mortgage. That  on the  16th of July 1974 the defendants accordingly  executed another  agreement to  sell the suit  house in favour of the plaintiff. According to her she being  a Maharashtrian  lady was  not  knowing  Gujarati language and  she could  not properly read or write the said language. That  the defendants  took undue advantage of this situation and  in the agreement dated 16th July 1974 did not mention about  the receipt  of Rs.16,000/-  by way  of total consideration, nor  did they mention that they had agreed to sell the entire suit house to the plaintiff but they wrongly mentioned in the agreement to sell that only half portion of the Wada  and the  room on  the ground floor of the property was agreed to be sold to her. According to the plaintiff the defendants redeemed  the suit  house but  they did  not show their willingness  to execute  registered Sale  Deed in  her favour. That  the plaintiff came to know that defendants had cheated her  and so  she filed  a criminal complaint against the defendants.  She also gave a notice dated 2nd March 1977 and called  upon them  to execute  a registered Sale Deed in her favour  of the  entire suit  property. As the defendants did not comply with the same she filed the suit for specific performance of  the agreement  to sell the entire suit house to her.  She also  prayed  for  award  for  damages  as  the defendants committed  breach of  contract. She alternatively prayed for a decree for Rs. 16,000/- against the defendants.      The defendants  contested the proceedings. According to them they  had executed one agreement on 16th February, 1974 in  favour  of  the  plaintiff.  That  there  was  a  tenant occupying the  first floor  of the  suit house and so it was difficult to get it vacated from the tenant. Consequently on 12th March  1974 they  executed second  agreement to sell in favour of  the plaintiff.  And by this agreement they agreed to sell  the ground floor of the suit house to the plaintiff for Rs.12,000/-. According to them the amount of Rs. 4,000/- which was  paid on  16th February,  1974 by  way of  earnest money was  adjusted in  the agreement dated 12th March 1974. The  defendants   denied  that   the   plaintiff   was   not understanding Gujarati  language and  that  they  had  taken undue  advantage   of  the   situation.  According   to  the defendants as there was no latrine in the Wada they required a portion  of the  Wada for construction of the bathroom and latrine. So  it was agreed between the parties that the land admeasuring 15’x7’  and 7  1/2’ x 7’ should be given to them and hence  on 16th  July 1974  a fresh  agreement to sell to that effect  was executed  and that  consideration  for  the agreement to  sell was fixed at Rs. 12,000/-. It was further contended that  the amount  of Rs  4,000/-  which  was  paid earlier was to be adjusted towards this new agreement and it was agreed between the parties that the plaintiff should pay the remaining amount of Rs. 8,000/- to them. That in view of this  agreement   dated  16th  July  1974  the  earlier  two

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agreements  stood   rescinded  and  that  they  had  already informed the  plaintiff in  their reply  to the  notice that they were  willing to  perform their  part of  the agreement dated 16th July 1974.      In the  light of the aforesaid pleadings of the parties the learned Trial Judge framed five issues as under :      "(1) Whether  the plaintiff  proves that      on 16.7.74 the defendants agreed to sell      the  suit   property  to   her  for  Rs.      16,000/- as alleged?      (2) Whether  the plaintiff  proves  that      the defendants  took undue  advantage of      her not knowing Gujarati language at the      time of  execution  of  agreement  dated      16.7.74 as alleged?      (3) Whether  the plaintiff  proves  that      she had  paid in all Rs. 16,000/- to the      defendants as alleged?      (4) Whether the plaintiff is entitled to      any relief as prayed for?      (5) What order and decree? After recording  evidence led by the parties on these issues the  learned  Trial  Judge  held  on  Issue  No.1  that  the plaintiff had  not  proved  that  on  16th  July,  1974  the defendants had  agreed to  sell the entire suit house to her for Rs.  16,000/-. However, it was proved that on 16th July, 1974 the  defendants agreed to sell ground floor of the suit house together  with half portion of the Wada and one of the rooms which  is described in the agreement to sell Ex. 75 to the plaintiff for Rs. 12,000/-. Issue No. 2 was found in the negative. As  far as  Issue No.  3 was concerned it was held that the plaintiff had paid Rs16,000/- to the defendants. On Issue No.  4 it  was held that the plaintiff was entitled to relief of specific performance of contract in respect of the agreement to  sell  dated  16th  July,  1974.  She  was  not entitled to  relief of  recovery of  damages and recovery of amount of  Rs. 4,  000/- or Rs. 16, 000/- or any amount from the  defendants.   Accordingly   the   suit   for   specific performance was  decreed and the defendants were directed to execute a  registered Sale  Deed in  terms of  the agreement Ext. 75  dated 16th  July 1974  in favour  of the  plaintiff within three  months from  the date  of the order and if the defendants failed to execute the registered Sale Deed within three months  of the order then the plaintiff was at liberty to move  the Court for execution of the registered Sale Deed in her favour. The rest of the suit was dismissed.      The original  plaintiff being aggrieved by the decision of the  Trial Court  inasmuch as  it did  not grant specific performance of  the agreement  to sell  dated 16th July 1974 for the  entire suit  house in  view of  the finding  of the learned Trial  Judge on  Issue No.1  preferred first  appeal before the High Court being First Appeal No. 803 of 1982. So far the defendants were concerned they did not challenge the decree for  specific performance  of the  agreement, nor did they challenge  any of  the findings recorded by the learned Trial Judge  on Issue  Nos. 3 and 4. Pending the said appeal the original  plaintiff expired  and the  present appellants were  brought   on   record   as   her   heirs   and   legal representatives. Said  First Appeal  came to be dismissed by the learned  Single Judge  of the  High Court.  Under  these circumstances the  heirs of  the  original  plaintiff  filed Special Leave  Petition (Civil)  No.3367 of 1993 before this Court. Notice was issued to the respondents in Special Leave petition and  as noted  earlier special leave is granted and the appeal  is being  disposed of  by this  judgment. As the

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appellants were  appearing as parties in person and were not in a  financial position  to engage  any  advocate,  we  had requested Shri  Mudgal, learned counsel to give legal aid to them and to assign a Marathi knowing senior lawyer to assist the appellants  and that  is how  Shri Salve, learned Senior Counsel, and Shri Khanwilkar appeared for the appellants.      We may  state at  the outset  that the  learned  Single Judge who  decided the  first appeal  had not considered all the relevant  aspects of  the case and had observed that the Trial Court  had reached findings of fact on appreciation of evidence and  even  after  hearing  the  heirs  of  deceased Induben for  sometimes the  learned Judge  did not  find any exception that  can  be  taken  to  the  reasoning  and  the findings of  the learned Trial Judge. With respect, the said approach of the First Appellate Court was, to say the least, a very casual and cursory one. As a Court of First Appeal it was expected of the court to come to the grip of the problem and to  re-appreciate the  evidence led in the case. As that has not been done we would have been required to remand this matter for a fresh decision in the first appeal. However, as we had  to consider  the circumstances  established  on  the record for  the purposes of this appeal and as they are of a clinching nature  in favour  of the  plaintiff  and  as  the litigation is  a very  old one  we decided not to remand the case and  to dispose it of finally. The learned advocates of the parties  addressed us  on the merits of their respective cases and took us through the relevant evidence on record.      Shri Salve,  appearing for  the  appellants,  submitted that both  the  courts  below  had  patently  erred  in  not decreeing the  suit of  the plaintiff  in its  entirety.  He submitted that when finding on Issue No.3 that the plaintiff had paid  Rs. 16,000/-  to the  defendants had remained well established on  record  and  when  the  defendants  had  not challenged  the  said  finding  before  the  High  Court  in appellants’ appeal  it was  obvious that  as compared to the earlier agreement  to sell  dated 12th March 1974 the latter agreement to  sell dated  16th July  1974 which contemplated payment of additional amount of Rs. 4,000/- by the plaintiff to the  defendants could  not have  covered lesser extent of the  property   sought  to  be  conveyed  under  the  latter agreement Ex.  75. That  the original  plaintiff was  not  a signatory to  the agreement  Ex.75 and,  therefore, her case that  she   was  not   knowing  Gujarati  language  and  the defendants had inserted self-serving averments in the latter agreement Ex.75,  was required to be accepted. That when the suit house  was agreed  to be  sold by the defendants to the plaintiff pursuant  to the suit agreement Ex. 75 it would be improbable to  believe that only ground floor portion was to be sold  to the  plaintiff excluding the upper floor portion which was  a Malia or a loft. That such a floorwise division of the  proprietory rights  in a residential house could not be countenanced  and normally  the first  floor loft portion would go with the ground floor portion of the suit house and it was  the entire  suit house  which would  be the  subject matter of  agreement to  sell. That  separate  ownership  of different floors  of a  residential house  in a taluka place like Ankleshwar,  could not  be contemplated. That even on a proper construction of the entire document, Ex.75, it became obvious that  the entire suit house was sought to be sold by defendants to  the plaintiff  and the  defendants could  not have retained  only the  first floor  loft portion  in their ownership. Learned  counsel for  the respondents  however on the other  hand submitted  that the  decree as passed by the learned Trial  Judge and as confirmed by the High Court does not suffer from any error of law or fact. That the plaintiff

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was staying  in Ankleshwar since last number of years and it could not  be believed  that she  was not  knowing  Gujarati language. That  both the  courts  have  given  a  concurring finding of  fact that  what was sought to be conveyed by the defendants to  the plaintiff  pursuant to  the agreement  to sell, was  not the entire suit house. That only ground floor of the  suit house  together  with  Wada  and  the  room  as described in  the agreement  to sell,  Ex.75, was to be sold for Rs. 12,000/-.      Having given  our anxious  consideration to  the  rival contentions  we   have  reached   the  conclusion  that  the appellant-heirs of  original plaintiff  are entitled  to the decree for  specific performance  for the  entire suit house and  not  to  a  limited  decree  for  specific  performance confined only  to a  part of the suit house being its ground floor  portion.   The  reasons   are  obvious.  The  earlier agreement  dated   12th  March  1974  which  the  defendants executed in  favour of  the original  plaintiff was  for the sale of  the ground  floor portion of the property mentioned in the  said document,  for Rs. 12,000/-. The said agreement clearly recites  that the  defendants were  agreeing to sell the ground  floor portion of the suit house to the plaintiff for Rs.  12,000/-. The  property sought to be conveyed under that document  for total  consideration of  Rs. 12,000/- was described to  comprise of  the entire  ground floor  portion along with  the ceiling over that portion and also the Chowk portion of  the Wada  and the  room adjoining  it. The  said agreement further  recited that towards the consideration of Rs. 12,000/-  Rs. 4,000/- were received by the executants on the same day and on receipt of the balance the sale deed was to be  executed by 16th August 1974. Both the defendants had signed that  agreement. It  is in  light  of  the  aforesaid document of  12th March  1974 that  we have to consider what was agreed to be sold pursuant to the latter agreement dated 16th July  1974. The said agreement recites that on the date of the  agreement, that is, 16th July 1974, Rs.12,000/- were paid by  the plaintiff to the defendants. And in lieu of the said payment  defendants were  agreeing to sell their house, that is,  the suit  house to  the  plaintiff.  It  was  also recited in  the  said  document  that  the  said  house  was mortgaged by  way of conditional sale for Rs. 9,999/- to one Nanalal of  Nainpur Village  of Mahemdabad Taluk. That house was to  be released  from said  Nanalal on  payment of  said amount. Consequently  out of  the said  consideration of Rs. 12,000/-, Rs.  9,999/- were to be paid to Nanalal Chhaganlal and for  that purpose  that amount was received in cash from the plaintiff.  After getting the said house released it was to be conveyed to the plaintiff by regular Sale Deed and the plaintiff would  be entitled  to get  the Sale Deed executed from the  defendants  and  their  heirs  and  assigns.  Then follows  the  description  of  the  property  sought  to  be conveyed. But  while describing  the property  sought to  be conveyed in  the last  line of  the agreement, Ex. 75, it is mentioned  that  the  ground  floor  portion,  Wada  portion including the ceiling of the Malia portion were agreed to be sold to  the plaintiff  by  the  said  document.  Below  the signature of the defendants on the said document, Ex. 75, is found a  written receipt  executed  by  defendant  no.2  for having been  paid Rs. 12,000/- in cash by the plaintiff. The relevant recitals  in the  agreement, Ex.  75, clearly  show that for a total consideration of Rs. 16,000/- (Rs. 12,000/- being paid  along with  the document, Ex. 75, and Rs.4,000/- already paid  earlier) the defendants had agreed to sell the entire suit  house to  the plaintiff and not only the ground floor thereof.  It is  obvious that  when only  ground floor

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portion was  agreed to  be sold  to  the  plaintiff  by  the defendants pursuant  to the  earlier  agreement  dated  12th March  1974   for  Rs.  12,000/-,  Rs.4,000/-  were  already received by the defendants. Consequently when the subsequent agreement, Ex.75,  was executed  on 16th  July 1974 and they received  additional  amount  of  Rs.  12,000/-  as  clearly recited in  the  document,  the  total  consideration  which passed from  the plaintiff to the defendants was to the tune of Rs.16,000/-.  Thus as  compared to  the consideration  of Rs.12,000/- mentioned  in the  earlier document  dated  12th March 1974  the  plaintiff  paid  an  additional  amount  of Rs.4,000/- by  the latter  agreement dated  16th July  1974. When additional  consideration of Rs.4,000/- passed from the plaintiff to  the defendants  it is obvious that as compared to the  agreement to  sell only  the ground floor portion of the suit house as per the earlier agreement dated 12th March 1974 the defendants must have agreed to convey at least some additional portion of the suit house by the latter agreement dated 16th  July 1974, as it cannot be countenanced that the plaintiff would  agree to  get a  lesser portion or the same protion of  the suit  property by paying Rs.4.000/- more, as compared to  what she  agreed to  purchase in March 1974 for Rs.12.000/- especially when it is no one’s case that between February and  July 1974 price of the suit house had risen or that the  defendants were  demanding more price for the same portion   of the  suit  property  covered  by  agreement  of February   1974.  It  has  to  be  kept  in  view  that  the defendants  have   not  challenged   decree   for   specific performance as  per Ex.75.  Not only  that they even did not challenge the  finding of  the learned  Trial Judge on Issue No.4 that  they had  already received  Rs.4,000/-  from  the plaintiff at  the time  of execution of earlier agreement to sell dated  12th March  1974. Consequently it has to be held that in all Rs.16.000/- were paid by the plaintiff in favour of the  defendants. Then there was no earthly reason for her to agree  to purchase only a part of the suit house pursuant to the  agreement Ex.75 by paying Rs.4,000/- more. That lays credence to  her case  that as  she was not knowing Gujarati the defendants  appear to  have taken undue advantage of her ignorance and  had purported  to convey  only  ground  floor protion of  the suit house pursuant to the agreement, Ext,75 even after  getting Rs.4,000/-  more from  the plaintiff. It has also  to be  kept in view that pursuant to the agreement Ext. 75  the defendants  had in  terms agreed  to convey the house to  the plaintiff,  namely, the  suit house  which was earlier mortgaged  to Nanalal.  It is  not the  case of  the defendants that  entire suit  house was  not   mortgaged  to Nanalal but  only ground floor portion was mortgaged and the upper floor,  namely, the  Malia  portion  was  not  subject matter of  mortgage. Once  that position becomes clear it is obvious that the entire house which was mortgaged to Nanalal was to  be got released by the defendants and to be conveyed to the  plaintiff. Any  inaccuracy in the latter part of the recitals about  the description of the suit property  cannot whittle down  the effect  of these  clear  recitals  in  the document. Ex.75.  about the  property agreed    to  be  sold thereby. Even otherwise it is impossible to contemplate that the entire ground floor of the suit house would be agreed to be sold  to the  plaintiff but the left protion on the first floor would  not be  sold to the plaintiff and its ownership would be  retained by the defendants. Such type of truncated conveyance of  a residential property in a taluka place like Ankleshwar and floorwise splitting up of ownership cannot be contemplated.      For all  these reasons  therefore, it must be held that

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the defendants  had agreed  to sell  the entire  suit  house including the  first floor  portion thereof to the plaintiff as per agreement Ex.75. The finding on Issue No.1 as arrived at by the Trial Court is set aside. It is held that Ex.75 is for  sale   of  entire   suit  house  for  Rs.16,000/-.  The appellant-heirs of  original plaintiff  would, therefore, be entitled to  the decree  of  specific  performance  for  the entire suit  house including  the first  floor portion.  The appeal is  accordingly allowed.  The judgment  and decree of the Trial  Court and  as confirmed  by the  High  Court  are modified by  directing the  defendants to execute registered Sale Deed  in terms  of the  agreement, Ext.  75, dated 16th July 1974  in favour  of the heirs of original plaintiff for the entire suit house including the first floor thereof. The rest of  the directions contained in the judgment and decree of the Trial Court would stand confirmed.      Before parting  with this case, we must place on record our appreciation  for the  trouble taken  by learned  senior counsel as  well as learned Advocate on Record for assisting the appellants in this case at our request.      In  the   result  the  appeal  is  allowed  with  costs throughout.