# Smt. Sarita Gupta @ Savita Gupta & Ors v. Smt. Shanti Devi & Ors

- **Citation:** (2022) 6 ILRA 1231
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-05-06
- **Case number:** First Appeal From Order No. 145 of 2017
- **Bench:** Rohit Ranjan Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-sarita-gupta-savita-gupta-ors-v-smt-shanti-devi-ors-48645
- **Pages:** 19

## Headnote

A. Civil Law - Transfer of Property Act,
1882, Section 3 - "a person is said to have
notice" - Where any transaction relating
to immovable property is required by law
to be and has been effected by a
registered
instrument,
any
person
acquiring such property shall be deemed
to have notice of such instrument as from
the
date
of
registration
-
legal
presumption of knowledge of notice arises
from omission to search registration in the
register kept under the Registration Act -
Specific Relief Act, 1963, Section 19 -
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 - question as to whether
subsequent purchasers are bona fide
purchasers for value without notice -
burden
of
proving
exception
of the
general rule given in Section 19 of the
Specific Relief Act is on the party pleading
it - it is upon subsequent purchasers to
show
that
they
are
the
bonafide
transferee for value without notice -
subsequent purchasers have got only the
right to defend their purchase on the
premise
that
they
have
no
prior
knowledge of the agreement of sale with
the
plaintiff
-
They
are
bona
fide
purchasers for valuable consideration,
though they were not necessary parties to
the suit. (Para 21, 34)

In the present case, it is upon the appellants
to show that they are the bonafide transferee
for value without notice - a registered
1232 INDIAN LAW REPORTS ALLAHABAD SERIES
agreement to sale was entered between
plaintiff respondent and late Jaswant Singh,
the defendant, on 26.08.1985 - Original Suit
No. 849 of 1987 was filed by the plaintiff
respondent against late Jaswant Singh for
specific performance of the contract entered
on 26.08.1985 - Jaswant Singh after filing of
Original Suit No. 849 of 1987 executed a
registered sale-deed on 28.10.1987 in favour
of Ravi Prakash Agrawal and others -
Subsequently,
on
08.03.1988
the
suit
property was transferred by Ravi Prakash
Agrawal and others in favour of present
appellants - agreement to sale was registered
on 26.08. thus, the appellants will be deemed
to have notice of the fact that an agreement
to sale was entered between the plaintiff
respondent and defendant (deceased Jaswant
Singh) 937)

B. Civil Law - Code of Civil Procedure,
1908 - Order 41 Rule 31 C.P.C. - Order
41 Rule 31 C.P.C. mandates that a
judgment of the appellate court shall be
in writing and shall state the points for
determination - substantial compliance
- effect - Where the appellate court has
considered the entire evidence on record
and discussed the same in detail, come
to any conclusion and its findings are
supported by reasons even though the
point has not been framed by the
appellate Court there is substantial
compliance with the provisions of Order
41 Rule 31 C

## Text

_Characters 0–39,742 of 61,400. This is a partial read: ask again with offset=39742 for what follows._

6 All. Smt. Sarita Gupta @ Savita Gupta & Ors. Vs. Smt. Shanti Devi & Ors.
1231
Company Limited, shall, in turn, be
deposited by the Motor Accident Claims
Tribunal, Lakhimpur Kheri in the highest
interest bearing fixed deposit schemes,
either of the post office or of any
nationalized bank. The receipts of the fixed
deposit shall be given to the claimants who
shall be entitled to withdraw the maturity
amount when the fixed deposits mature.
The maturity amount shall be credited by
the bank/post office in any savings account
of the claimants. The concerned bank or
post office shall not permit any loan or
advance against the fixed deposits made in
favour of the claimants. The Tribunal,
while depositing the amount in any fixed
deposit scheme, shall communicate the
directions issued by this Court to the
concerned bank/post office. In case, the
New India Assurance Company Limited
fails to deposit the awarded amount within
three months from today, the Tribunal shall
recover the same from the New India
Assurance Company Limited in accordance
with law.

46. With the aforesaid directions
and observations, the First Appeal From
Order No. 566 of 2016 is dismissed and
First Appeal From Order No. 145 of 2017
is allowed. Parties shall bear their own
cost.

47. Office shall transmit the records
of the case to the Tribunal, at the earliest.
----------
(2022)06ILR A1231
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 06.05.2022 &
19.05.2022

BEFORE

THE HON'BLE ROHIT RANJAN AGARWAL, J.

Second Appeal No. 283 of 2022
Smt. Sarita Gupta @ Savita Gupta & Ors.
 ...Appellants
Versus
Smt. Shanti Devi & Ors. ...Respondents

Counsel for the Appellants:
Sri Kshitji Shailendra

Counsel for the Respondents:
Sri Tarun Agarwal, Sri Ravi Kant

A. Civil Law - Transfer of Property Act,
1882, Section 3 - "a person is said to have
notice" - Where any transaction relating
to immovable property is required by law
to be and has been effected by a
registered
instrument,
any
person
acquiring such property shall be deemed
to have notice of such instrument as from
the
date
of
registration
-
legal
presumption of knowledge of notice arises
from omission to search registration in the
register kept under the Registration Act -
Specific Relief Act, 1963, Section 19 -
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 - question as to whether
subsequent purchasers are bona fide
purchasers for value without notice -
burden
of
proving
exception
of the
general rule given in Section 19 of the
Specific Relief Act is on the party pleading
it - it is upon subsequent purchasers to
show
that
they
are
the
bonafide
transferee for value without notice -
subsequent purchasers have got only the
right to defend their purchase on the
premise
that
they
have
no
prior
knowledge of the agreement of sale with
the
plaintiff
-
They
are
bona
fide
purchasers for valuable consideration,
though they were not necessary parties to
the suit. (Para 21, 34)

In the present case, it is upon the appellants
to show that they are the bonafide transferee
for value without notice - a registered
1232 INDIAN LAW REPORTS ALLAHABAD SERIES
agreement to sale was entered between
plaintiff respondent and late Jaswant Singh,
the defendant, on 26.08.1985 - Original Suit
No. 849 of 1987 was filed by the plaintiff
respondent against late Jaswant Singh for
specific performance of the contract entered
on 26.08.1985 - Jaswant Singh after filing of
Original Suit No. 849 of 1987 executed a
registered sale-deed on 28.10.1987 in favour
of Ravi Prakash Agrawal and others -
Subsequently,
on
08.03.1988
the
suit
property was transferred by Ravi Prakash
Agrawal and others in favour of present
appellants - agreement to sale was registered
on 26.08. thus, the appellants will be deemed
to have notice of the fact that an agreement
to sale was entered between the plaintiff
respondent and defendant (deceased Jaswant
Singh) 937)

B. Civil Law - Code of Civil Procedure,
1908 - Order 41 Rule 31 C.P.C. - Order
41 Rule 31 C.P.C. mandates that a
judgment of the appellate court shall be
in writing and shall state the points for
determination - substantial compliance
- effect - Where the appellate court has
considered the entire evidence on record
and discussed the same in detail, come
to any conclusion and its findings are
supported by reasons even though the
point has not been framed by the
appellate Court there is substantial
compliance with the provisions of Order
41 Rule 31 CPC and the judgment is not
in any manner vitiated by the absence of
a
point
of
determination
-
Noncompliance - Non-compliance with the
provisions may not vitiate the judgment
and make it wholly void, and may be
ignored if there has been substantial
compliance with it and the second
appellate Court is in a position to
ascertain the findings of the lower
appellate (Para 18)

Issue/point of determination with regard to
bonafide/malafide purchase by the appellant
having
knowledge/no
knowledge
of
the
agreement to sale was framed never framed
nor decided. - Held - Held - Appellate court
has considered the entire evidence on record
and discussed the same in detail and has
come to conclusion and recorded its finding
though the point of determination has not
been framed by the lower appellate court, but
still there is substantial compliance of the
provisions of Order 41 Rule 31 C.P.C. - lower
appellate court rightly decreed the suit of
plaintiff
respondent
no.
1
for
specific
performance for which he is entitled pursuant
to the registered agreement to sale executed
on 26.08.1985 between the plaintiff and the
defendant (deceased Jaswant Singh) under
whom the present appellants are litigating
(Para 40)

Dismissed. (E-5)

List of Cases cited:-

1. Ram Pravesh & ors. Vs Ram Bilash & ors.,
2015 (5) ADJ 690,

2. Ram Chander Vs Imtiyaz Ali & anr. S.A. No.
226 of 2018 dt 30.03.2022

3. Guruswamy Nadar Vs P. Lakshmi Ammal
(Dead) Through LRS. & ors., 2008 (5) SCC 796

4.
Veluyudhan
Sathyadas
Vs
Govindan
Dakshyani, JT 2002 (5) SC 357

5. G. Jayashree & ors. Vs Bhagwandas S. Patel
& ors., 2009 (3) SCC 141

6. J.P. Builders & anr. Vs A. Ramadas Rao &
anr., 2011 (1) SCC 429

7. Jugraj Singh & anr. Vs Labh Singh & ors. Vs
1995 (2) SCC 31

8. G. Amalorpavam & ors. Vs R.C. Diocese of
Madurai & ors., 2006 (3) SCC 224

9. Awadh Raj & ors. Vs Gulab Singh & ors.,
2005 (2) AWC 1827 (All)

10. Smt. Ram Peary & ors. Vs Gauri & ors., AIR
1978 All 318

11. M. L. Abdul Jabbar Sahid Vs H. Venkata
Sastri and Sons & ors., AIR 1969 SC 1147

12. Kripa Ram (deceased) through Legal
Representatives & ors. Vs Surendra Deo Gaur &
6 All. Smt. Sarita Gupta @ Savita Gupta & Ors. Vs. Smt. Shanti Devi & Ors.
1233
ors.,
Civil
Appeal
No.8971
of
2010
dt
16.11.2020

(Delivered by Hon'ble Rohit Ranjan
Agarwal, J.)

1. Heard Sri Kshitij Shailendra, learned
counsel for the appellants and Sri Ravi Kant,
learned Senior Counsel, assisted by Sri Tarun
Agrawal, learned counsel for the respondents.

2. This is defendant-III set/appellants'
second appeal under Section 100 C.P.C.
challenging the judgment and decree dated
19.01.2022 passed by the District Judge,
Aligarh in Civil Appeal No. 132 of 2016
arising out of Original Suit No. 849 of 1987,
and judgment and decree dated 28.10.2016
passed by the Additional Civil Judge (Senior
Division), Court No. 2, Aligarh in Original
Suit No. 849 of 1987.

3. This appeal has a chequered history.
A brief description is necessary for better
appreciation of the case, which is as follows;

4. Plaintiff respondent nos. 1 and 2
entered into a registered agreement of sale
with one Jaswant Singh, the original
defendant Ist set/respondent on 26.08.1985
for the sale of bhumidhari land for Rs. 98,195
for which an advance of Rs. 5000/- was given
at the time of agreement of sale and balance
amount of Rs. 93,195/- was to be paid by the
plaintiff respondent at the time of execution
of sale-deed. According to the agreement to
sale the sale-deed was to be executed within
four
months
on
taking
balance
sale
consideration
and
defendant
(deceased
Jaswant Singh) was to take necessary
permission of sale, if any.

5.

According
to
the
plaintiff
respondent several requests were made
with the defendant to obtain income tax
exemption certificate but the sale-deed was
not executed. Thus, a letter was sent by the
plaintiff respondent to the defendant
(deceased Jaswant Singh) on 05.12.1985
calling upon him to appear in the office of
Sub-Registrar, Koil, Aligarh with income
tax exemption certificate on 24.12.1985.
When the defendant did not reach the office
of Sub-Registrar, on his request the saledeed was to be executed on 26.12.1985. On
that day again, the defendant did not reach
the office of Sub-Registrar and gave excuse
that once the certificate is received
regarding exemption from the Income Tax
Department, he will execute the sale-deed.
When the sale-deed was not executed by
the defendant, the plaintiff respondent filed
Original Suit No. 849 of 1987 on
26.10.1987 claiming relief of specific
performance of contract in favour of the
plaintiff respondent against the defendant
and defendant be directed to execute the
sale-deed
after
taking
balance
sale
consideration of Rs. 93,195/-. An alternate
plea was also taken that in case the relief
cannot be legally granted then decree of
return of Rs. 5000/- pendente lite in future
be passed in favour of plaintiff respondent
and against the defendant. The defendant
(deceased Jaswant Singh) on 28.10.1987
executed a sale-deed in favour of one Ravi
Prakash Agrawal. The said transferee
through
sale-deed
dated
08.03.1988
transferred the said property in favour of
present appellants' predecessor as well as
the appellant.

6. Original Suit No. 849 of 1987 filed
by the plaintiff respondent no. 1 was
decreed ex parte on 05.12.1989. The trial
court had directed the heirs of late Jaswant
Singh to execute registered sale-deed in
favour of plaintiff after depositing the
balance amount of Rs. 93,195/- The heirs
of defendant Ist set (deceased Jaswant
1234 INDIAN LAW REPORTS ALLAHABAD SERIES
Singh) filed an application under Order 9
Rule 13 C.P.C. for setting aside the ex parte
decree dated 05.12.1989. In the meantime,
the ex parte decree was put into execution
which was registered as Execution Case
No. 36 of 1990 and an amount of Rs.
93,195/- was deposited by the decree
holder before the execution court. The
application under Order 9 Rule 13 C.P.C.
was allowed on 07.03.1998. The trial court
again decreed the suit under Order 8 Rule
10 C.P.C. on 28.11.2000 directing for
refund of Rs. 5000/- alongwith 12%
interest per annum. The judgment and
decree of trial court was put to challenge by
the plaintiff respondent nos. 1 and 2 by
filing Civil Appeal No. 12 of 2001
requesting that the suit be decreed for relief
of specific performance of the contract. The
said appeal was allowed on 30.10.2003 and
the matter was again remitted to the trial
court for decision afresh on merits after
hearing the parties concerned.

7. Meanwhile, the heirs of defendant
Ist set/respondent no. 3 (deceased Jaswant
Singh) filed Suit No. 314 of 1992 before
the Civil Judge (Junior Division), Hawali,
Aligarh for cancellation of sale-deed
executed by their father late Jaswant Singh
against the respondent no. 4 Ravi Prakash
Agrawal on 08.03.1988. In the said suit the
present appellants were also arrayed as
defendant and they had filed their written
statement. The said suit was dismissed on
31.07.2015.

8. While in the Suit No. 849 of 1987
an amendment application was moved by
the plaintiff respondent Paper No. 155-Ka
for impleading the subsequent purchaser
including
the
appellants,
which
was
allowed on 03.08.2016. The trial court
found that subsequent purchaser having not
appeared despite notices and publication
made proceeded ex parte as there was
direction of this Court to conclude the suit
proceedings and on 28.10.2016 partly
decreed the suit of the plaintiff respondent
to the extent that they were entitled to a
decree for refund of Rs. 5000/- deposited at
the time of execution of agreement to sale
alongwith interest and as the litigation has
been going on for 30 years they were
entitled for compensation of Rs. 2,00,000/-.
Being dissatisfied by the judgment of trial
court, the plaintiff respondent nos. 1 and 2
filed Civil Appeal No. 132 of 2016 before
the District Judge, Aligarh who allowed the
appeal and directed for the execution of the
sale-deed in view of the fact that the
balance sale consideration money of Rs.
93,195/- is already deposited in the court.
Hence,
this
present
appeal
by
the
subsequent purchaser and his legal heirs.

9. Sri Kshitij Shailendra, learned
counsel appearing for the appellants,
assailed the order of lower appellate court
on
the
ground
that
the
mandatory
provisions of Order 41 Rule 31 C.P.C. has
not been complied with and not even a
single point of determination has been
framed. He has relief upon a decision of
coordinate Bench of this Court in case of
Ram Pravesh and others Vs. Ram Bilash
and others, 2015 (5) ADJ 690, a decision
of this Court in case of Ram Chander Vs.
Imtiyaz Ali and another, Second Appeal
No. 226 of 2018, decided on 30.03.2022.

10. He next contended that initially
the suit for specific performance was filed
against the defendant vendor Jaswant Singh
and the present appellants who are
subsequent purchaser were for the first time
impleaded in suit by order of trial court on
03.08.2016 and no opportunity has been
granted to file written statement. He then
submitted that Section 19 (b) of the
6 All. Smt. Sarita Gupta @ Savita Gupta & Ors. Vs. Smt. Shanti Devi & Ors.
1235
Specific Relief Act, 1963 (hereinafter
referred as the ''Act of 1963') protects the
case of subsequent purchaser and the said
provision can only be invoked when an
issue/point of determination with regard to
bonafide/malafide
purchase
by
the
appellant having knowledge/no knowledge
of the agreement to sale was framed,
admittedly, this issue was never framed nor
decided.

11. Reliance has been placed upon a
decision of Apex Court in case of
Guruswamy Nadar Vs. P. Lakshmi
Ammal (Dead) Through LRS. and
Others, 2008 (5) SCC 796. He then
contended that once the decree passed by
the trial court on 05.12.1989 was set aside,
the Execution Case No. 36 of 1990 has lost
its significance and amount deposited in the
said execution proceedings would be of no
consequence and the lower appellate court
directing for enforcement of the contract of
the year 1985 and co-relation to the amount
deposited in execution case is totally
illegal. He next submitted that the plaintiff
having called upon the defendant to
execute sale-deed on 24.12.1985 there was
no notice on record and mere receipt dated
24.12.19985 and 26.12.1985 filed by the
plaintiff alongwith list 98-C would not be
sufficient to satisfy the requirement of
Section 16 (c) of the Act of 1963.

12. Reliance has been placed upon a
decision of Apex Court in case of
Veluyudhan Sathyadas Vs. Govindan
Dakshyani, JT 2002 (5) SC 357, G.
Jayashree and others Vs. Bhagwandas S.
Patel and others, 2009 (3) SCC 141,
relevant paragraph nos. 32 to 35 are
extracted here as under;

"32. The civil courts, in the
matter of enforcement of an agreement to
sell, exercise a discretionary jurisdiction.
Discretionary jurisdiction albeit must be
exercised judiciously and not arbitrarily or
capriciously. A plaintiff is expected to
approach the court with clean hands. His
conduct plays an important role in the
matter
of
exercise
of
discretionary
jurisdiction by a court of law. In
Mohammadia
Cooperative
Building
Society Limited v. Lakshmi Srinivasa
Cooperative Building Society Limited &
ors. [(2008) 7 SCC 310], this Court held:

"71. Grant of a decree for specific
performance of contract is a discretionary
relief.
There
cannot
be
any
doubt
whatsoever that the discretion has to be
exercised judiciously and not arbitrarily.
But for the said purpose, the conduct of the
plaintiff plays an important role. The courts
ordinarily would not grant any relief in
favour of the person who approaches the
court with a pair of dirty hands."

33. In Sanjana M. Wig (Ms.) v.
Hindustan Petroleum Corpn. Ltd. [2005) 8
SCC 242] in regard to exercise of the
discretionary jurisdiction, this Court held
that the same depends upon the facts and
circumstances of each case wherefor no
hard and fast rule can be laid down.

34. We may notice that B.P.
Jeevan Reddy, J. in K.S. Vidyanadam &
ors. v. Vairavan(1997) 3 SCC 1] held that a
new look is required to be given and the
rigour of the rule is required to be relaxed
by courts as regards the principle that time
is not of the essence of the contract in case
of immovable properties as when the said
principle was

"11.......The learned Counsel for
the plaintiff says that when the parties
entered into the contract, they knew that
1236 INDIAN LAW REPORTS ALLAHABAD SERIES
prices are rising; hence, he says, rise in
prices cannot be a ground for denying
specific performance. May be, the parties
knew of the said circumstance but they
have also specified six months as the period
within which the transaction should be
completed. The said time-limit may not
amount to making time the essence of the
contract but it must yet have some
meaning. Not for nothing could such timelimit would have been prescribed. Can it be
stated as a rule of law or rule of prudence
that where time is not made the essence of
the contract, all stipulations of time
provided
in
the
contract
have
no
significance or meaning or that they are as
good as nonexistent? All this only means
that while exercising its discretion, the
court should also bear in mind that when
the parties prescribes certain time-limit(s)
for taking steps by one or the other party, it
must have some significance and that the
said time-limit (s) cannot be ignored
altogether on the ground that time has not
been made the essence of the contract
[relating to immovable properties]."

This court therein noticed the
decision
rendered
in
Mademsetty
Satyanarayana v. G. Yellogi Rao[(1965) 2
SCR 221] where Subba Rao, J. (As His
Lordship then was) made a distinction
between Indian law and the English law on
the subject to hold that some delay may not
be a bar in granting a relief of specific
performance as the limitation for filing such
suit is prescribed under the Limitation Act,
1963, stating:

"13. In the case before us, it is not
mere delay. It is a case of total inaction on the
part of the plaintiff for 2 1/2 years in clear
violation of the terms of agreement which
required him to pay the balance, purchase the
stamp papers and then ask for execution of
sale deed within six months. Further, the
delay is coupled with substantial rise in
prices- according to the defendants, three
times - between the date of agreement and the
date of suit notice. The delay has brought
about a situation where it would be
inequitable to give the relief of specific
performance to the plaintiff."

35. Mr. Nariman, however, would
contend that somewhat different view has
been taken by this Court in Nirmala Anand
v. Advent Corporation (P) Ltd. & ors.
[(2002) 8 SCC 146], wherein this Court in
a situation of this nature had directed
payment of a higher price. Each case is,
thus, required to be considered on its own
facts. No hard and fast rule, therefore, can
be laid down. While determining the lis in a
suit for specific performance of contract, no
legal principle in absolute terms can be laid
down. Relief in a matter of this nature has
to be granted keeping in view a large
number of facts."

13. Reliance has also been placed
upon decision of Apex Court in case of J.P.
Builders and another Vs. A. Ramadas
Rao and another, 2011 (1) SCC 429,
relevant paragraph nos. 22, 24, 25, 26 and
27 are extracted here as under;

"22. The words "ready" and
"willing" imply that the person was
prepared to carry out the terms of the
contact.
The
distinction
between
"readiness" and "willingness" is that the
former refers to financial capacity and the
latter to the conduct of the plaintiff wanting
performance.
Generally,
readiness
is
backed by willingness.

24. In P.D'Souza vs. Shondrilo
Naidu, (2004) 6 SCC 649 paras 19 and 21,
this Court observed:
6 All. Smt. Sarita Gupta @ Savita Gupta & Ors. Vs. Smt. Shanti Devi & Ors.
1237

"19. It is indisputable that in a
suit for specific performance of contract the
plaintiff must establish his readiness and
willingness to perform his part of contract.
The question as to whether the onus was
discharged by the plaintiff or not will
depend upon the facts and circumstance of
each case. No strait-jacket formula can be
laid down in this behalf....

21.........The
readiness
and
willingness on the part of the plaintiff to
perform his part of contract would also
depend upon the question as to whether the
defendant did everything which was
required of him to be done in terms of the
agreement for sale."

25. Section 16 (c) of the Specific
Relief Act, 1963 mandates "readiness and
willingness" on the part of the plaintiff and
it is a condition precedent for obtaining
relief of grant of specific performance. It is
also clear that in a suit for specific
performance, the plaintiff must allege and
prove
a
continuous
"readiness
and
willingness" to perform the contract on his
part from the date of the contract. The onus
is on the plaintiff.

26. It has been rightly considered
by this Court in R.C. Chandiok & Anr. vs.
Chuni Lal Sabharwal & Ors., (1970) 3 SCC
140 that "readiness and willingness" cannot
be treated as a straight jacket formula. This
has to be determined from the entirety of
the facts and circumstances relevant to the
intention
and
conduct
of
the
party
concerned.

27. It is settled law that even in
the absence of specific plea by the opposite
party, it is the mandate of the statute that
plaintiff has to comply with Section 16(c)of
the Specific Relief Act and when there is
non-
compliance
with
this
statutory
mandate, the Court is not bound to grant
specific performance and is left with no
other alternative but to dismiss the suit. It is
also clear that readiness to perform must be
established throughout the relevant points
of time. "Readiness and willingness" to
perform the part of the contract has to be
determined/ascertained from the conduct of
the parties."

14. Lastly, he contended that the
impleadment application impleading the
subsequent purchaser was allowed on
03.08.2016 and notices having been issued
on 22.08.2016 and the trial court on the
next date i.e. 26.09.2016 observing that the
suit has to be expeditiously decided in view
of the directions of the High Court fixed for
27.09.2016 and thereafter publication was
permitted on 24.10.2016 and the suit was
decreed on 28.10.2016 leaving no time for
the appellants to contest the same.

15. Sri Ravi Kant, learned Senior
Counsel,
appearing
for
the
plaintiff
respondent nos. 1 and 2, submitted that the
agreement to sale which was entered on
26.08.1985 between the plaintiff and
defendant (deceased Jaswant Singh) is a
registered document. The sale-deed was to
be executed within four months during
which Jaswant Singh was required to take
necessary permission from the Income Tax
Department. According to him, the notice
was given by the plaintiff to the defendant
on 05.12.1985 for executing the sale-deed
on 24.12.1985. The plaintiff having been
present in the office of Sub-Registrar on
that day and then again on 26.12.1985 had
brought on record the receipt dated
24.12.1985 and 26.12.1985 through Paper
No. 98-Ga which clearly proves that the
plaintiff was always ready and willing to
perform the essential terms of the contract
1238 INDIAN LAW REPORTS ALLAHABAD SERIES
which are to be performed by him and,
thus, the provisions of Section 16 (c) of the
Act of 1963 should be read in favour of
plaintiff
having
complied
the
said
provision.

16. He further submitted that a
subsequent
purchaser
from
vendor
defendant, though necessary party to a suit,
cannot raise such a plea and it is only the
vendor defendant who can raise such plea.
Reliance has been placed upon the decision
of Apex Court in case of Jugraj Singh and
another Vs. Labh Singh and others Vs.
1995 (2) SCC 31. Relevant paragraph nos.
3 to 5 are extracted here as under;

"3. Section 16 (c) of the Specific
Relief Act, 1963 provides that the plaintiff
must plead and prove that he has always
been ready and willing to perform his part
of the essential terms of the contract. The
continuous readiness and willingness at all
stages from the date of the agreement till
the date of the hearing of the suit need to be
proved. The substance of the matter and
surrounding circumstances and the conduct
of the plaintiff must be taken into
consideration in adjudging readiness and
willingness to perform the plaintiff's part of
the contract.

4.The Privy Council in Ardeshir
H. Mama v. Flora Sassonhas held that in a
suit for specific performance the averment
of readiness and willingness on plaintiff's
part up to the date of the decree is
necessary.

5.This Court in Gomathinayagam
Pillai v. Palaniswami Nadarquoting with
approval Ardeshir case had held as follows:

"But the respondent has claimed a
decree for specific performance and it is for
him to establish that he was, since the date
of the contract, continuously ready and
willing to perform his part of the contract.
If he fails to do so, his claim for specific
performance must fail."

That plea is specifically available
to the vendor/defendant. It is personal to
him. The subsequent purchasers have got
only the right to defend their purchase on
the premise that they have no prior
knowledge of the agreement of sale with
the plaintiff. They are bona fide purchasers
for valuable consideration. Though they are
necessary parties to the suit, since any
decree obtained by the plaintiff would be
binding on the subsequent purchasers, the
plea that the plaintiff must always be ready
and willing to perform his part of the
contract must be available only to the
vendor or his legal representatives, but not
to the subsequent purchasers. The High
Court, therefore, was right in rejecting the
petitioners' contention and rightly did not
accept the plea. We do not find any ground
warranting interference."

17. He then submitted that the lower
appellate court had categorically recorded
the finding as to the readiness and
willingness of the plaintiff for execution of
sale-deed by the defendant in his favour.
He then contended that the lower appellate
court had substantially complied the
provisions of Order 41 Rule 31 C.P.C. as it
is clear from the judgment of lower
appellate court that there is substantial
compliance of requirement of Order 41
Rule 31 C.P.C.

18. According to him, the lower
appellate court had considered the entire
evidence and discussed in detail, and the
conclusion and findings are supported by
reasons
even
though
no
point
of
6 All. Smt. Sarita Gupta @ Savita Gupta & Ors. Vs. Smt. Shanti Devi & Ors.
1239
determination has been framed. Reliance
has been placed upon the decision of Apex
Court in case of G. Amalorpavam and
others Vs. R.C. Diocese of Madurai and
others, 2006 (3) SCC 224. Relevant
paragraph no. 9 is extracted here as under;

"9. The question whether in a
particular case there has been a substantial
compliance with the provisions of Order 41
Rule 31 CPC has to be determined on the
nature of the judgment delivered in each
case. Non-compliance with the provisions
may not vitiate the judgment and make it
wholly void, and may be ignored if there
has been substantial compliance with it and
the second appellate Court is in a position
to ascertain the findings of the lower
appellate Court. It is no doubt desirable that
the appellate court should comply with all
the requirements of Order 41 Rule 31 CPC.
But if it is possible to make out from the
judgment
that
there
is
substantial
compliance with the said requirements and
that justice has not thereby suffered, that
would be sufficient. Where the appellate
court has considered the entire evidence on
record and discussed the same in detail,
come to any conclusion and its findings are
supported by reasons even though the point
has not been framed by the appellate Court
there is substantial compliance with the
provisions of Order 41 Rule 31 CPC and
the judgment is not in any manner vitiated
by the absence of a point of determination.
Where there is an honest endeavour on the
part of the lower appellate court to consider
the controversy between the parties and
there is proper appraisement of the
respective
cases
and
weighing
and
balancing of the evidence, facts and the
other considerations appearing on both
sides is clearly manifest by the perusal of
the judgment of the lower appellate court, it
would be a valid judgment even though it
does
not
contain
the
points
for
determination. The object of the Rule in
making it incumbent upon the appellate
court to frame points for determination and
to cite reasons for the decision is to focus
attention of the Court on the rival
contentions which arise for determination
and
also
to provide
litigant
parties
opportunity in understanding the ground
upon which the decision is founded with a
view to enable them to know the basis of
the
decision
and
if
so
considered
appropriate and so advised to avail the
remedy of Second Appeal conferred by
Section 100 CPC."

19. He next submitted that the
defendant
(deceased
Jaswant
Singh)
executed the sale-deed in favour of Ravi
Prakash Agrawal on 28.10.1987 while the
suit for specific performance was filed by
the plaintiff respondent nos. 1 and 2 on
26.10.1987 i.e. prior to the execution of
sale-deed in favour of Ravi Prakash
Agrawal and others. According to him, the
doctrine of lis pendens will apply and the
party purchasing the property after suit has
been filed by the original purchaser will not
get the title and benefit. Thus, exemption of
Section 19 (b) of the Act of 1963 will not
be available to appellants in view of
doctrine of lis pendens.

20. Reliance has been placed upon the
judgment of Apex Court in case of
Guruswamy Nadar (Supra). Relevant
paragraph nos. 9, 10 and 17 are extracted
here as under;

"9. Section 19 of the Specific
Relief Act clearly says subsequent sale can
be enforced for good and sufficient reason
but in the present case, there is no difficulty
because the suit was filed on 3.5.1975 for
specific performance of the agreement and
1240 INDIAN LAW REPORTS ALLAHABAD SERIES
the second sale took place on 5.5.1975.
Therefore, it is the admitted position that
the second sale was definitely after the
filing of the suit in question. Had that not
been the position then we would have
evaluated the effect of Section Section 52
the Transfer of Property Act. But in the
present case it is more than apparent that
the suit was filed before the second sale of
the property. Therefore, the principle of lis
pendens will govern the present case and
the second sale cannot have the overriding
effect on the first sale.

10. The principle of lis pendens is
still settled principle of law. In this
connection,
the
Full
Bench
of
the
Allahabad High Court in Smt. Ram Peary
(supra) has considered the scope of Section
52 the Transfer of Property Act. The Full
Bench has referred to a decision in Bellamy
v.
Sabine[(1857)
44
ER
842
at
p.847)wherein it was observed as under:

"4....... It is scarcely correct to
speak of lis pendens as affecting a
purchaser through the doctrine of notice,
though undoubtedly the language of the
Courts often so describes its operation. It
affects him not because it amounts to
notice, but because the law does not allow
litigant parties to give to others, pending
the litigation, rights to the property in
dispute, so as to prejudice the opposite
party.

Where a litigation is pending between
a plaintiff and a defendant as to the right to
a particular estate, the necessities of
mankind required that the decision of the
Court in the suit shall be finding, not only
on the litigant parties, but also on those
who derive title under them by alienations
made pending the suit, whether such
alienees had or had not notice of the
pending proceedings. If this wsere not so,
there could be no certainty that the
litigation would ever come to an end."

17. Similarly, in Jugraj Singh &
Anr. V. Labh Singh & Ors. [ (1995) 2 SCC
31], it was also emphasized that the plea
that the plaintiff was to prove that he was
ready and willing to perform his part of the
contract. It is personal to him. The
subsequent purchasers have got only the
right to defend their purchase on the
premise that they have no prior knowledge
of the agreement of sale with the plaintiff.
They are bona fide purchasers for valuable
consideration,
though
they
were
not
necessary parties to the suit. But in the
present case, the second purchaser was a
defendant in the suit and this plea was also
considered by learned Single Judge and it
found that there was sufficient allegation
made in the plaint that the plaintiff was
ready and willing to perform his part of the
contract. This aspect was dealt with by
learned Single Judge in its order dated
24.7.1990 and learned Single Judge in
paragraph 8 held as follows:

"
On
the
first
of
these
submissions, I find that as against the
definite plea in paragraph 7 of the Plant
that Plaintiff has been and is still ready and
is still ready and willingly specifically to
perform the agreement on her part of which
the 1st Defendant has had notice. The only
plea in the written statement of the 1st
Respondent is " the allegations in Para 7 of
the Plaint that this Defendant is aware of
the contract is denied as false". Thus, it is
found that there is no denial at all t the plea
that the Plaintiff was ready and willing to
perform her part of the contract. Likewise,
the 2nd Respondent also has not denied the
said plea, in his written statement. Further,
to the specific averment in para 5 of the
6 All. Smt. Sarita Gupta @ Savita Gupta & Ors. Vs. Smt. Shanti Devi & Ors.
1241
Plaint "by the latter part of July, 1974, the
Plaintiff informed the Defendants of her
readiness to complete the sale", there is no
specific denial at all. There is only a vague
and evasive denial by the 1st Respondent as
follows:

" The allegation contained in para
5 of the Plaint are frivolous and denied.'

Likewise, the 2nd Respondent
also has not specifically denied the above
said averment in the Plaint."

Therefore, from this finding it is
more than apparent that the plaintiff while
filed the suit for specific performance of
the contract was ready and willing to
perform her part of the contract. This
argument was though not specifically
argued before the Division Bench, the only
question which was argued was whether
the principle of lis pendens will be
applicable or Section 19 of the Specific
Relief Act will have overriding effect to
which we have already answered. In the
present case the principle of lis pndens will
be applicable as the second sale has taken
place after the filing of the suit. Therefore,
the view taken by the Division Bench of
the High Court is correct and we do not
find any merit in this appeal and the same
is accordingly dismissed with no order as to
costs."

21. Reliance has also been placed
upon a decision of coordinate Bench of this
Court in case of Awadh Raj and others
Vs. Gulab Singh and others, 2005 (2)
AWC 1827 (All). Relevant paragraph nos.
17 and 18 are extracted here as under;

"17.
The
fourth
substantial
question of law relates to the question as to
whether the defendant-appellants are bona
fide purchasers for value without notice. I
may again refer to the exception of the
general rule given in Section 19 of the
Specific Relief Act. This exception has
been created in Section 19 of the Specific
Relief Act in favour of the bona fide
transferee without notice. The burden of
proving this exception is on the party
pleading it. Here, in the instant case, the
defendant-appellants are pleading that they
are the bona fide transferees for value
without notice. In order to challenge the
finding of the lower appellate court; the
defendant-appellants
have
raised
this
contention. The learned first appellate court
has recorded a finding that the agreement in
question executed in favour of the plaintiff
is a registered document and the defendantappellants have not made any enquiry
before getting the sale deed executed from
the office of the Sub-Registrar about the
title over the disputed land. The first
appellate court has referred the admission
of the defendant No. 2 Lalta Prasad Singh
in which he has stated that he had not made
any enquiry before the execution of the sale
deed. It has been argued that the
registration of the agreement cannot be said
to be sufficient notice to the purchaser.
This contention has no force of law. For
this purchase, I may refer the interpretation
of a phrase "a person is said to have notice"
given under Section 3 of the Transfer of
Property Act, 1882 which is as follows :

" 'a person is said to have notice'
of a fact when he actually knows that fact,
or when, but for wilful abstention from an
inquiry or search which he ought to have
made, or gross negligence, he would have
known it.

Explanation
1.--Where
any
transaction relating to immovable property
is required by law to be and has been
1242 INDIAN LAW REPORTS ALLAHABAD SERIES
effected by a registered instrument, any
person acquiring such property or any part
of, or share or interest in, such property
shall be deemed to have notice of such
instrument as from the date of registration
or where the property is not all situated in
one sub-district, or where the registered
instrument has been registered under Subsection (2) of Section 30 of the Indian
Registration Act, 1908 from the earliest
date on which any memorandum of such
registered instrument has been filed by any
Sub-Registrar within whose sub-district
any part of the property which is being
acquired, or of the property wherein a share
or interest is being acquired, is situated ;

Provided that--

(1) The instrument has been
registered and its registration completed in
the manner prescribed by the Indian
Registration Act, 1908 and the rules made
thereunder.

(2)
The
instrument
or
memorandum has been duly entered or
filed, as the case may be, in books kept
under Section 51 of that Act, and ;

(3) The particulars regarding the
transaction to which the instrument relates
have been correctly entered in the indexes
kept under Section 55 of that Act.

Explanation
II.--Any
person
acquiring any immovable property or any
share or interest in any such property shall
be deemed to have notice of the title, if any,
of any person who is for the time being in
actual possession thereof.

Explanation III.--A person shall
be deemed to have had notice of any fact if
his agent acquires notice thereof whilst
acting on his behalf in the course of
business to which that fact is material :

Provided
that,
if
the
agent
fraudulently conceals the fact, the principal
shall not be charged with notice thereof as
against any person who was a party to or
otherwise cognizant of the fraud."

18. The Transfer of Property Act,
1882 contemplates three kinds of notice ;
(i) actual notice, (ii) constructive or implied
notice and (iii) notice to an Agent.