{"id":92895,"date":"2010-02-03T00:00:00","date_gmt":"2010-02-02T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/hodil-singh-deceased-and-others-vs-bhagwant-singh-deceased-and-on-3-february-2010"},"modified":"2017-07-19T05:13:29","modified_gmt":"2017-07-18T23:43:29","slug":"hodil-singh-deceased-and-others-vs-bhagwant-singh-deceased-and-on-3-february-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/hodil-singh-deceased-and-others-vs-bhagwant-singh-deceased-and-on-3-february-2010","title":{"rendered":"Hodil Singh (Deceased) And Others vs Bhagwant Singh (Deceased) And … on 3 February, 2010"},"content":{"rendered":"
Allahabad High Court<\/div>\n
Hodil Singh (Deceased) And Others vs Bhagwant Singh (Deceased) And … on 3 February, 2010<\/div>\n
                                                                  Court No.1\n                   Second Appeal No. 156 of 2010\nHodil Singh (Deceased) represented by Legal Heirs\nLegal Representatives.............................................Appellants\n                                 Versus\nBhagwant Singh(Deceased) represented by Legal Heirs\nLegal Representatives........................................Respondents\n                                  ________\n\n\n\n\nHon'ble Rakesh Sharma, J.\n<\/pre>\n
      Heard Sri Anil Kumar Aditya, learned counsel for the
\nappellants and Sri Manish Chandra Tiwari, holding brief of Sri A.T.
\nKulsreshtha, learned counsel for the respondents as well as perused
\nthe materials on record, including the judgments of the courts
\nbelow.\n<\/p>\n
      This Second Appeal has been preferred against the judgment
\nand decree dated 21.11.2009, passed by the Additional District
\nJudge, Court No.12, Aligarh, in Civil Appeal No.130 of 2004,
\nBhagwant Singh Vs. Holdil Singh, allowing the Appeal preferred by
\nrespondent no.1 by which the judgment and decree dated
\n22.5.2004, passed by the Trial court has been set aside.\n<\/p>\n
      It emerges from the record that an agreement to sell (a lease
\ndeed as alleged by the appellant) was executed by one Hodil Singh,
\nnow represented through his legal heirs and legal representatives,
\non 27.4.1994 for selling of his Bhumidhari agricultural land
\nmeasuring 8 Bigha 13 Biswa and 15 Biswansi, situate in Village
\nBajrangpur, Majra Vijay Garh, Pargana Akrabad, Tehsil Sikandra
\nRao, now Tehsil Koil, District Aligarh.           The said deed was duly
\nregistered in the office of the Sub Registrar Sikandra Rao, District
\n                                                                       2<\/span><\/p>\n
Aligarh. Lateron, two Suits were filed in the Civil Court, that is, one
\nbeing Suit No. 375 of 1995, preferred by Hodil Singh against
\nBhagwant Singh, seeking a relief that the said agreement to sell,
\nregistered on 27.4.1994, be declared null and void.           He had
\nchallenged this deed on various grounds as mentioned in the plaint.
\nAccording to him, a document which was registered on 27.4.1994,
\nwas, in fact, a lease deed for cultivating the land in dispute.
\nNeither adequate consideration or price of the land was given to him
\nnor he ever intended to transfer his agricultural land. Another Suit,
\nthat is, Suit No. 855 of 1998, Bhagwant Singh Vs. Hodil Singh was
\nfiled by Bhagwant Singh, now represented through his legal heirs
\nand legal representatives, against Holdil Singh seeking specific
\nperformance of the contract entered into between the parties.\n<\/p>\n
     It was pleaded by Bhagwant Singh that the said agreed to sell
\nwas executed by Hodil Singh agreeing to sell the aforesaid land for a
\ntotal sum of Rs.1,55,000\/= for which a written agreement\/contract
\nwas prepared, executed and registered on 27.4.1994 in the office of
\nthe Sub Registrar. A sum of Rs.30,000\/- was paid as an advance
\namount to Hodil Singh.      According to him Rs.26,000\/- was paid
\nbefore to Hodil Singh before registration of the agreement to sell
\nand Rs.4,000\/- was paid at the time of registration of the
\nagreement to sell in the office of the Sub Registrar. These events
\nwere noted in the agreement to sell. The parties were agreed that
\nthe sale deed would be executed by 27.10.1995. In the meantime,
\nvendee,   that   is,   Bhagwant   Singh,   was   required   to   make
\narrangements of the remaining amount to be paid to vendor at the
\ntime of execution of the sale deed.\n<\/p>\n
     In furtherance of the agreement to sell, Bhagwant Singh, sent
\na written notice to Hodil Singh, vendor, on 3.7.1995 for execution of
\n                                                                       3<\/span><\/p>\n
the sale deed, indicating therein that he had arranged the money,
\nbut Hodil Singh did not turn up to execute the sale deed.
\nThereafter, notices were sent on 25.10.1995 and 27.10.1995 by
\nBhagwant Singh for execution of the sale deed in the office of the
\nSub Registrar. It was pleaded by Bhagwant Singh in the plaint of
\nSuit No. 855 of 1998 that through notices he had indicated to Hodil
\nSingh that he was will to pay the remaining balance amount
\ntowards sale consideration and was ready to get the sale deed
\nexecuted to discharge his part of contract.       On refusal of Hodil
\nSingh, he was compelled to file Suit No. 855 of 1998, which was
\nultimately decided by the judgment and decree dated 22.5.2004.\n<\/p>\n
     The Trial court had decided these two Suits by one and
\ncommon judgment.      It had dismissed the Suit preferred by Hodil
\nSingh, declining to hold that the document\/deed, which was
\nregistered on 27.4.1994 was a lease deed. It was held by the Trial
\ncourt that Hodil Singh had executed an agreement to sell in favour
\nof Bhagwant Singh, which was registered on 27.4.1994. Following
\nfindings and conclusions have been recorded by the Trial court in its
\njudgment:-\n<\/p>\n
     “……\u0909\u0915 \u0924\u0925\u092f\u094b \u0938\u0947 \u0938\u092a\u0937 \u0939\u0948 \u093f\u093f \u092f\u093f\u093f \u0939\u094b\u0921\u0932 \u093f\u0938\u0902\u0939 \u0926\u093e\u0930\u093e \u092a\u091f\u093e \u093f\u093f\u0937\u092a\u093e\u093f\u093f\u0924 \u093f\u093f\u092f\u093e<\/p>\n
\u0917\u092f\u093e \u0924\u094b \u093f\u093f\u093f\u093f\u093f\u0924 \u0930\u092a \u0938\u0947 \u0938\u092e\u092a\u093f\u093f \u093f\u093e \u093f\u092c\u091c\u093e \u092d\u0940 \u092d\u0917\u0935\u0902\u0924 \u093f\u0938\u0902\u0939 \u093f\u094b \u093f\u0947 \u093f\u093f\u092f\u093e \u0939\u094b\u0924\u093e \u0914\u0930<\/p>\n
\u092f\u093f\u093f \u093f\u092c\u091c\u093e \u093f\u0939\u0940 \u093f\u093f\u092f\u093e \u0917\u092f\u093e \u0924\u094b \u0935\u093e\u093f\u0940 \u0939\u094b\u0921\u0932 \u093f\u0938\u0902\u0939 \u092f\u0939 \u0938\u092a\u0937 \u093f\u0930\u0924\u093e \u093f\u093f \u093f\u093f\u093f<\/p>\n
\u092a\u093f\u0930\u093f\u0938\u093f\u093f\u0924\u092f\u094b \u092e\u0947 \u092a\u091f\u093e \u093f\u093f\u0937\u092a\u093e\u093f\u093f\u0924 \u093f\u0930\u093f\u0947 \u093f\u0947 \u092c\u093e\u093f \u092d\u0940 \u0909\u0938\u093f\u0947 \u0926\u093e\u0930\u093e \u092d\u0917\u0935\u0902\u0924 \u093f\u0938\u0902\u0939 \u093f\u093e \u0938\u092e\u092a\u093f\u093f<\/p>\n
\u092a\u0930 \u093f\u092c\u091c\u093e \u093f\u0939\u0940 \u093f\u093f\u092f\u093e \u0917\u092f\u093e \u093f\u093e\u0964 \u0909\u092a\u0930\u094b\u0915 \u092a\u093f\u0930\u093f\u093f\u093e\u093e \u0938\u0947 \u0938\u092a\u0937 \u0939\u0948 \u093f\u093f \u0935\u093e\u093f\u0940 \u0939\u094b\u0921\u0932 \u093f\u0938\u0902\u0939 \u0926\u093e\u0930\u093e<\/p>\n
\u093f\u0938\u0924\u093e\u0935\u0947\u091c \u093f\u094b \u0907\u093f\u0930\u093e\u0930\u093f\u093e\u092e\u093e \u0938\u092e\u091d\u0924\u0947 \u0939\u0941 \u090f \u0939\u0940 \u093f\u093f\u0937\u092a\u093e\u093f\u093f\u0924 \u093f\u093f\u092f\u093e \u0917\u092f\u093e \u093f\u093e\u0964”\n<\/p>\n
     Ultimately, the Trial court had dismissed Suit NO. 375 of 1995,
\nfiled by Hodil Singh and the Suit filed by Bhagwant Singh was partly
\n                                                                          4<\/span><\/p>\n
decreed, directing the vendor to return Rs.4,000\/- receiving by him
\nas advance money. This decree was challenged by Bhagwant Singh
\nby filing a First Appeal, which was registered as Civil Appeal No. 130
\nof 2004. The lower Appellate court has allowed he appeal preferred
\nby Bhagwant Singh, represented by his legal heirs and legal
\nrepresentatives.    The judgment and decree passed by the Trial
\ncourt, while deciding, Suit no. 855 of 1998, preferred by Bhagwant
\nSingh was set aside. The lower Appellate court has held that Hodil
\nSingh could receive the balance amount of sale consideration of
\nRs.1,25,000\/-      and    execute   sale   deed   in   favour   of   legal
\nrepresentatives of Bhagwant Singh.           This judgment is under
\nchallenge in this Second Appeal.\n<\/p>\n
     Sri Anil Kumar Aditya, learned counsel for the appellants, has
\nassailed this judgment on various grounds. According to him, the
\ndocument registered on 27.4.1994 was merely a lease deed. It was
\nnot an agreement to sell. The total advance amount of Rs.30,000\/=
\nas alleged was not paid to Hodil Singh. The Trial court has rightly
\nheld that he was only paid Rs. 4,000\/- at the time of registration of
\nagreement to sell.       Much stress has been laid that there was no
\nwillingness or readiness shown by Bhagwant Singh in arranging the
\nmoney and getting the sale deed executed within time. Hodil Singh
\nwas not paid the entire agreed amount within time. Suit N. 855 of
\n1998 was preferred beyond time of three years of the deed of
\nexecution of agreement to sell.      This shows that Bhagwant Singh
\nnever intended to get the sale deed executed within the stipulated
\nperiod of time and he was only taking advantage of the situation.
\nIn support of his submissions, he has placed reliance on the
\njudgments reported in 2009(2) AWC 1546, Azhar Sultana Vs. B.
\nRajamani and others, AIR 2003 SC 1391, Manjunath Anandappa Urf
\nShivappa Hansi v. Tammanasa and<\/a> othrs, AIR 2004 SC 3504,
\n                                                                      5<\/span><\/p>\n
Pukhraj D. Jain and others v. G. Gopalakrishna and<\/a> 2008 (105) RD
\n739, Shambhu Prasad Vs. Smt. Shamim Jahan to strengthen his
\nsubmissions as put-forth in the grounds of appeal and during
\narguments. He led the Court to chronology of events and facts to
\nshow that the element willingness and readiness was absent in the
\npresent case. The delay in approaching the court itself reflects on
\nthe conduct of the respondent. He has further submitted that there
\nwere two Suits, that is, Suit No. 375 of 1995 and Suit No. 855 of
\n1998 and it can be said that there were two judgments deciding two
\nSuits.   Therefore, Bhagwant Singh should have filed two Appeals
\nwhich has not been done in the present case.        Principles of Res
\nJudicata have also not been followed in the present case. In this
\nregard, he has placed reliance on the judgments reported in AIR
\n2009 SC 1819, Harbans Singh and others Vs. Sant HariSingh and
\nothers and 2009(4) AWC 3613, Hradeshwar Nath v. Nandlal and
\nanother. In addition, the other grounds were also highlighted in the
\nmemo of Appeal.\n<\/p>\n
     On the other hand, Sri Manish Chandra Tiwari, learned counsel
\nfor the respondents, has opposed the motion.       According to him,
\nBhagwant Singh, had one and half years’ time to get the sale deed
\nexecuted.   It was stipulated in the agreement to sell itself that the
\nsale deed could be executed by 27.10.1995. He had arranged the
\nmoney and indicated his intention, willingness and readiness by
\nsending notice firstly on 3.7.1995 and thereafter on 25.10.1995 and
\n27.10.1995 requiring Hodil Singh to come in the office of the Sub
\nRegistrar and execute the sale deed. There is also a reference of a
\nPanchyat being held in the Village which could not yield any result.
\nIn these compelling circumstances, Bhagwant Singh was left no
\noption but to file Suit No. 855 of 1998 for specific performance of
\nthe contract. Sri Tiwari has supported the judgment rendered by
\n                                                                     6<\/span><\/p>\n
the lower Appellate court and drawn attention of the Court on
\nvarious findings recorded by the Appellate court and the conclusions
\ndrawn.\n<\/p>\n
     Having heard learned counsel for the parties and carefully
\ngone through the materials available on record as well as the
\njudgments of the courts below.\n<\/p>\n
     In the present case, the Trial court has already dismissed the
\nSuit No. 375 of 1995, filed by the appellant, Hodil Singh, the
\nvendor, against Bhagwant Singh, the vendee. It has categorically
\nrecording findings and concluded that there existed an agreement to
\nsell not a lease deed. The findings recorded by the Trial court, as
\nmentioned    in   the   foregoing   paragraphs,    have    remained
\nunchallenged and uncontested.       These findings and conclusions
\ncertainly operate against the appellants. Even this Court itself has
\nperused the findings recorded by the Trial court and the lower
\nAppellate court. Here is a case where the Trial court itself had held
\nthat Hodil Singh was conversant with the procedure for execution of
\nthe deeds. It was not the case that he was an illiterate person or
\ninsane person having no knowledge of execution of deeds. This fact
\nfinds support from the fact that in the agreement to sell
\nphotographs of both the parties, that is, vendor, Hodil Singh and
\nBhagwant Singh were affixed, which were duly identified by the
\nwitnesses, terms and conditions were stipulated in writing and it
\nwas also signed by the vendee, Hodil Singh and as such it cannot be
\nsaid that Hodil Singh was not aware of the contents of the
\nagreement to sell or unware of the execution of the agreement to
\nsell or that it was a lease deed. He was paid Rs.26,000\/- before
\nregistration of the agreement to sell and Rs.4,000\/- was paid to him
\nat the time of registration of the agreement to sell in the office of
\n                                                                     7<\/span><\/p>\n
the Sub Registrar.    Thus, by no stretch of imagination it can be
\npresumed that he was not aware that he had executed an
\nagreement to sell. Therefore, there is no reason to form a different
\nopinion during the course of hearing of Second Appeal on admission
\nto take another view in the matter. There is no allegation against
\nthe Sub Registrar or the Deed Writer that incorrect facts were
\nmentioned in the agreement to sell.       The Trial court has already
\nheld agreement to sell to be a valid and legal document and this
\nCourt while examining the matter in the Second Appal is in full
\nagreement with this finding recorded by the Trial court and the
\nlower Appellate court as this is a concurrent finding of fact.\n<\/p>\n
     As far as the intention to perform the part of the contract by
\nBhagwant Singh is concerned, in the present set of circumstances,
\nthis Court has taken note of the fact that the respondent-Bhagwant
\nSingh had filed 12 documents, which were placed as Paper 7-Ga.
\nThese 12 documents included the registered notice sent by
\nBhagwant Singh, requiring Hodil Singh to come to the office of the
\nSub Registrar for execution of the sale deed and the receipts issued
\nby the Sub Registrar that the vendee, Bhagwant Singh, had
\nappeared before the Sub Registrar.           Thus, on the basis of
\ndocumentary and oral evidence produced by the vendee, Bhagwant
\nSingh, the lower Appellate court has formed the opinion that there
\nwas every intention, willingness and readiness available on the part
\nof Bhagwant Singh to show that he was always prepared to get the
\nsale deed executed. The notices were sent by Bhagwant Singh to
\nHodil Singh within the stipulated period on 3.7.1995, 25.10.1995
\nand 27.10.1995 for getting the sale deed executed.          There was
\nspecific mention in the plaint also that such intention, willingness
\nand readiness were existed at the time of filing of the Suit.\n<\/p>\n
                                                                     8<\/span><\/p>\n
     It is noteworthy that the appellant had failed to demolish these
\n12 documents and testimony of the witnesses. No document to the
\ncontrary was produced by Hodil Singh before the courts below. The
\nlower Appellate court, in the light of these documents and oral
\ntestimony of witnesses has rightly recorded its opinion that these
\nevidences remained uncontroverted and unchallenged.            While
\ndeciding the Suits, the Trial court has ignored all these documents.
\nIt is relevant to mention here that the lower Appellate court has
\nfollowed the law laid down in the judgments reported in AIR 1997
\nSC 463, AIR 2006 SC 2172, Sugani v. Rameshwar Daw and others
\nand AIR<\/a> 2009 SC 2408, Moti Lal Jain v. Ramdasi and others while
\nrecording its findings and conclusions.   Even this Court, from the
\nfactual matrix of the case, is of the opinion that the vendor,
\nBhagwant Singh, had proved his case before the courts below that
\nhe was always willing and ready to get the sale deed executing after
\nthe remaining balance sale consideration. His willingness and
\nreadiness finds support from the notices sent by him on 3.7.1995,
\n25.10.1995 and 27.10.1995 and from other documentary evidence.\n<\/p>\n
     As far as application of principles of Res Judicate and other
\narguments of Sri Anil Kumar Aditya, learned counsel for the
\nappellants, are concerned, both the Suits, that is, Suit Nos. 375 of
\n1995 and 855 of 1998 were clubbed together by the Trial court and
\nboth were decided by one common judgment and decree dated
\n22.5.2004, after hearing learned counsel for the parties and with
\ntheir consent as the very genesis and the subject matter of both the
\nSuits were same. By the said judgment and decree, Suit No. 375 of
\n1995, filed by the vendee, Hodil Singh against the vendor,
\nBhagwant Singh, was dismissed and Suit No.855 of 1998, filed by
\nthe vendor, Bhagwant Singh, was partly decreed. The Trial court,
\nwhile deciding the Suits, framed separate issues which were dealt
\n                                                                     9<\/span><\/p>\n
with, findings and conclusions were recorded and evidence adduced
\nwere appreciated. Both the parties agreed for clubbing of the Suits,
\nthus, one and common judgment was rendered as the issues and
\nsubject matter of both the Suits were common and same.         Thus,
\nrightly a single Appeal was preferred by Bhagwant Singh, which was
\nrightly dealt with by the lower Appellate court. It appears that no
\nserious objection was raised either before the Trial court or before
\nthe lower Appellate court and, therefore, at the Second Appellate
\nstage it is not permissible to raise this issue.   Since there was a
\ncommon judgment, the lower Appellate court did not add anything
\nnew, while dealing with the appeal and decided the issues and
\nconcluded the controversy.\n<\/p>\n
     While dealing with Second Appeals, this Court is regularly
\nnoticing that the parties entering into agreement to sell or contract
\nor sale deeds are approaching the Court taking the dishonest pleas
\nthat either they have not executed agreement to sell or contract or
\nthey do not have knowledge about the contents or terms and
\nconditions of the agreement to sell or the contract entered into just
\nin order to escape to perform their part of contract and to frustrate
\nperformance of the contract thereby showing extreme dishonesty
\nand cheating to the sanctity of the agreement or contract or sale
\ndeeds, which, in fact they have entered into and received money in
\npart performance thereof.       In the process of execution of
\nagreements, contract or sale deed how it could be possible that the
\npersons executing these documents\/deeds was unaware of the
\ncontents or terms and conditions of the documents\/deeds on which
\nhe put his signature or thumb impression, as the case may be. In
\nmost of the cases of challenging the documents\/deeds, it is the
\ndishonesty of the person, who has executed the agreement to sell,
\ncontract or sale deed as well as it is high degree of cheating and
\n                                                                     10<\/span><\/p>\n
fraud with the other party. In the present days, if it is permitted it
\nwill create a chaos in the Banking, finance and other economic
\naffairs, which may result irreparable damage to the economy as
\nwell. In the execution of the agreements, contracts or sale deeds, it
\nis the faith and confidence of the parties which plays the important
\nrole.    If this faith and confidence in execution of agreements,
\ncontracts and sale deeds is permitted to be shaken, it will convey
\nvery bad indication for the economy and the promises reduced by
\nway of these documents. Thus, the sanctity of agreement must be
\nrespected and preserved.\n<\/p>\n
        Now a days, it has become a regular tendency that first enter
\ninto an agreement or a contract in respect of immoveable property
\nor some other contractual affairs or business with an ulterior motive
\nand thereafter resile from the promise made through the agreement
\nor contract by entering into litigation. It is a new device invented
\njust in order to get the execution of terms and conditions contained
\nin an agreement or contract frustrated. The person, who has paid
\nthe money or consideration on execution of an agreement or
\ncontract feels cheated after getting involved in an unexpected and
\nunsavoury situation of unwanted litigation so initiated by a
\ndishonest person.     Thus, the primary duty of a Court of law is to
\nenforce a promise, which the parties have made and to uphold the
\nsanctity of a contract or an agreement entered into between the
\nparties, which form the basis of a society, though there may be
\nexception. The Courts must exercise extreme restraint in holding a
\ncontract or an agreement to be void as it would encourage
\ndishonesty and cheating.\n<\/p>\n
        My this view finds support from the judgment reported in AIR
\n1959 SC 781, Gherulal Parakh v. Mahadeodas Maiya.<\/a>\n<\/p>\n
                                                                     11<\/span><\/p>\n
        In view of the discussions made above, no substantial question
\narises to be considered in the present Second Appeal. Accordingly,
\nthe Second Appeal is dismissed. The judgment and decree of the
\nLower Appellate court is affirmed.\n<\/p>\n
3.2.2010
\nbgs\/-<\/p>\n","protected":false},"excerpt":{"rendered":"
Allahabad High Court Hodil Singh (Deceased) And Others vs Bhagwant Singh (Deceased) And … on 3 February, 2010 Court No.1 Second Appeal No. 156 of 2010 Hodil Singh (Deceased) represented by Legal Heirs Legal Representatives………………………………………Appellants Versus Bhagwant Singh(Deceased) represented by Legal Heirs Legal Representatives………………………………….Respondents ________ Hon’ble Rakesh Sharma, J. Heard Sri Anil Kumar Aditya, learned […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[9,8],"tags":[],"class_list":["post-92895","post","type-post","status-publish","format-standard","hentry","category-allahabad-high-court","category-high-court"],"yoast_head":"\nHodil Singh (Deceased) And Others vs Bhagwant Singh (Deceased) And ... on 3 February, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/hodil-singh-deceased-and-others-vs-bhagwant-singh-deceased-and-on-3-february-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Hodil Singh (Deceased) And Others vs Bhagwant Singh (Deceased) And ... on 3 February, 2010 - 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