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Induben Ashokrao Nalvade (DEAD) By L. RS. Versus Dhirajlal Shivlal Surati & Anr.

1995 (8) TMI 328 - SUPREME COURT OF INDIA

Dated:- 14-8-1995 - Majmudar S.B.,Bharucha S.P. And Faizan Uddin, JJ. JUDGMENT: S.B. Majmudar, 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 appella .....

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eirs, 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 o .....

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on 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 .....

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d 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 ₹ 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 t .....

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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 ₹ 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. Conse .....

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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 ₹ 12,000/-. It was further contended that the amount of ₹ 4, .....

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ies 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 ₹ 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 ₹ 16,000/- to the defendants as alleged? (4) Whether the pla .....

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scribed in the agreement to sell Ex. 75 to the plaintiff for ₹ 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 ₹ 16,000/- 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 ₹ 4, 000/- or ₹ .....

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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, n .....

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ts in Special Leave petition and as noted earlier special leave is granted and the appeal is being disposed of by this judgment. As the 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 .....

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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 .....

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lished 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 ₹ 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 plaintif .....

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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 .....

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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 ₹ 12,000/-. Having given our anxious consideration to the rival contentions we have reached the conclusion that th .....

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aid agreement clearly recites that the defendants were agreeing to sell the ground floor portion of the suit house to the plaintiff for ₹ 12,000/-. The property sought to be conveyed under that document for total consideration of ₹ 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 ₹ 12 .....

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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 ₹ 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 ₹ 12,000/-, ₹ 9,999/- were to be paid to Nanalal Ch .....

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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 ₹ 12,000/- in cash by the plaintiff. The relevant recitals in the agreement, Ex. 75, clearly show that for a total consideration of ₹ 16,000/- (Rs. 12,000/- being paid along with the document, Ex. 75, and ₹ 4,00 .....

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₹ 12,000/- as clearly recited in the document, the total consideration which passed from the plaintiff to the defendants was to the tune of ₹ 16,000/-. Thus as compared to the consideration of ₹ 12,000/- mentioned in the earlier document dated 12th March 1974 the plaintiff paid an additional amount of ₹ 4,000/- by the latter agreement dated 16th July 1974. When additional consideration of ₹ 4,000/- passed from the plaintiff to the defendants it is obvious that as c .....

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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 ₹ 4,000/- .....

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ance and had purported to convey only ground floor protion of the suit house pursuant to the agreement, Ext,75 even after getting ₹ 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 .....

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