2024 INSC 491

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

JUDGMENT

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
7th December 1981 by which he agreed to sell his Bhumidhari
land measuring 2.90 acres of Khasra no. 48 (for short, ‘the suit
Signature Not Verified

Digitally signed by
ASHISH KONDLE

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

Date: 2024.07.09
16:14:55 IST
Reason:

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

Civil Appeal No. 6782 of 2013 Page 1 of 24

20,300/-. There was a recital in the registered agreement dated
7th 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 6th 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 12th 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 17th
December 1983, and the averments regarding the subsequent
alienations were incorporated by the amendment made to the
plaint in terms of the order dated 28th 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 2 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 3 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 4 of 24

ORDERS OF THIS COURT

7. On 26th 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 12th August 2013, leave was granted. This Court granted a

stay to the operation of the impugned decrees on 26th 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 5 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 6 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 1st 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 7 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 Bharathi3, 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
Mudaliyar1 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 8 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 9 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 10 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 11 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 12 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 vendor 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 the 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 13 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 Bharathi3. 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 14 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 Bharathi3 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 15 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 16 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 another5, 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 17 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 18 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 19 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 20 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 21 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 22 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 23 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.

Civil Appeal No. 6782 of 2013 Page 24 of 24