Dipika Sen vs Sachindra Sabdakar And Ors

[1] This appeal under Section 100 of the CPC arises from the judgment dated 12.01.2016 delivered in Title Appeal No.4 of 2015 (Dipika Sen vs. Sachindra Sabdakar and Anr.) by the Addl. District Judge, Unakoti Judicial District, Kailasahar. This appeal by the defendant No.2 in the suit being Title Suit No.57 of 2013, instituted in the court of the Civil Judge (Sr. Div) Unakoti Judicial District, Kailasahar, was admitted by the order dated 16.04.2016 on the following substantial questions of law:

(i) Whether the suit being hit by Section 17 of the Specific Relief Act the decree can be sustained?

(ii) Whether the appellant, the defendant No.2 in the suit had any obligation under the said agreement (Exbt.2) to carry out and if there were no obligation whether the decree mandating him to execute the registered sale deed on receiving a sum of Rs.1,00,00/- (Rupees one lac) can again be sustained?

[2] The relevant fact relating to the suit may be introduced at the outset. The appellant (the defendant No.1 in the suit) intended to sell the suit land, as described in the schedule appended to the plaint, pertaining to Mouja Kamrangabari, Unakoti, Khatian No.48/1, ,48/2 48/3, CS Plot No.613 corresponding to RS Plot No.806 measuring 0.19 acre, CS Plot No.611 corresponding RS Pot No.807 measuring 0.14 acre and CS Plot No.632 corresponding RS. Plot No.808 measuring 0.26 acre, in total 0.59 acre. The respondent No.1 (the plaintiff) expressed his intention to purchase the suit land and on negotiation the consideration price was settled at Rs.3 lakhs. Out of the entire consideration money, during execution of "unregistered biana chukti patra" (the agreement to sale) on 05.03.2011, the respondent No.1 made payment of Rs.2 lakhs as the earnest money in presence of witnesses.

[3] Having received the said amount, the appellant executed the said unregistered baina chukti patra. The plaintiff made several attempts to pay the remainder of the consideration money so that the registered sale deed was executed by transferring the suit land. It was agreed between the plaintiff and the defendant No.1 that within 2 years, the remainder of the consideration money shall be paid. It has been contended in the plaint that on 16.02.2013, the last request for accepting the remainder of the consideration price was made by the plaintiff to the defendant No.1 but she did not act in accordance with the terms of the agreement of sale.

[4] On 16.09.2013, the defendant No.1 executed the registered sale deed in favour of the defendant No.2 (the respondent No.2 herein) by transferring the suit land showing the consideration price at Rs. 5.25 lakhs. The plaintiff-respondent has categorically stated that the said sale deed was executed in order to frustrate the obligation created by the agreement to sale. According to the plaintiff, that was a fraudulent transaction and not real. Most importantly, the plaintiff has stated that he was in possession of the suit land which was handed over by the defendant No.1. In this perspective, the suit was instituted for specific performance of the contract to sale as stated above.

[5] The defendants filed the separate written statements. In the written statement filed by the defendant No. 1 (Debendra Chandra Sen), it has been categorically admitted that on 05.03.2011, the plaintiff paid him Rs.2 lakhs out of Rs.3 lakhs fixed as the consideration price. Having accepted the payment of Rs. 2 lakhs, one unregistered biana chukti patra was executed between the plaintiff and the defendant No.1. but in the written statement, it has been recorded that the plaintiff assured the defendant No.1 that he will pay the remainder amount within three months (on verification of the agreement to sale, Exbt-2 series, it transpires the time as stipulated was 2 (two) years) but the plaintiff did not turn up with the remainder of the consideration price. The defendant No.2, grand-daughter-in-law of the defendant No.1, had started creating pressure on the defendant No.1 for transferring the suit land in her favour showing the higher price. Even she expressed her displeasure for allowing the plaintiff coming to the suit land.

[6] The said development was informed to the plaintiff and he was asked to return the unregistered baina chukti patra inasmuch as he had failed to pay the consideration price within a period of three months. Ultimately, the defendant No.1 executed the sale deed No.1-949 dated 27.4.2011 in favour of the defendant No.2 by transferring the suit land. But the defendant No.1 has categorically denied that the plaintiff was ready and willing to perform his part of the contract. It has been stated by the defendant No.1 in his written statement as follows:

"That, it is true that earlier defendant No.2 was in possession of this suit land but since some time before present plaintiff has taken over possession of this suit land and now he is in possession of this suit land. He could very well approach this defendant No. 1 with the rest amount of Rs. One lac within said three months to receive his Kabala but instead he remained inactive. However, this defendant No. 1 was ready to return his paid amount of Rs.2 lac to this plaintiff but this plaintiff, as it appears was also not willing to take back this Rs.2 lac with some evil intention."

[7] The defendant No.2, the appellant herein, by filing the reply has clearly stated that the defendant No.1 has no absolute right either at the time of executing the agreement to sell inasmuch as the property was joint and un-partitioned. Subsequently, the suit for partition was instituted being Title Suit No.37 (P) of 2012 for partition of the joint property. It has been contended that at the time of issuing the decree, the defendant No.2 (the appellant) was given her share from the account of the defendant No.1 in view of the sale deed. Execution of agreement to sell the suit land was a conspiracy inasmuch as the plaintiff was the bargadar [the share-cropper] under the defendant No.1. That is the reason, no categorical statement has been made in the plaint how the plaintiff came into that possession of the suit land. She has further asserted in her written statement that the defendant no. 1 was not diligently contesting the suit.

[8] On the basis of the rival pleadings, the Civil Judge (Sr. Div) hereinafter referred to as the trial judge, framed the following issues:

Whether the suit is barred by law of limitation and also not maintainable in its present form and law?

Whether the defendant No.1 has entered an agreement in writing to sell the suit land in favour of the plaintiff with the term and conditions laid in the agreement, and Rs. Two lakh was paid to the defendant No. 1 as advance of part of the sell price and in consequent possession of the suit land was given to the plaintiff?

Whether the plaintiff was ever ready and willing to perform the said agreement/contract from his part but, defendant No. 1 was not willing to perform the contract from his part?

Whether the defendant No.2 had knowledge of the sale agreement entered between plaintiff and defendant No.1?

Whether the defendant No.1 and defendant No.2 have entered into another sale agreement in respect of the suit land knowing fully about existence of the contract between plaintiff and defendant No.1?

Whether the plaintiff is entitled to get decree as prayed for?

Any other relief or relieves?

[9] The trial judge has observed that execution of the agreement to sell has not been disputed. The plaintiff (PW-1 ) has by evidence proved that he was ready and willing to pay the remainder of the consideration price (Rupees one lakh) within the stipulated period of two years. For purpose of verification of the agreed time, the deed of agreement to sale (Exbt-2 in series) has been examined and found that the period of making payment was agreed to be two years. It has been recorded in the said unregistered agreement of sale dated 05.03.2011 that the plaintiff had been given possession of the suit land in contemplation of transfer. The subsequent sale in favour of the defendant No.2, the appellant herein, was therefore held to be unsustainable in law and the performance of the context is liable to be enforced.

[10] It has been observed by the trial judge in the judgment dated 19.02.2014 as delivered in Title Suit No. 57 of 2013 as under:

Another decision is referred by Ld. Counsel for the plaintiff as reported in (2001) 8 SCC 133 (Vasantha Biswanathan and Others, Appellants Vrs. V.K. Elayalwar And Others, Respondents) to show that specific performance can be enforced not only against either party thereto but, against 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 original contact. In the present case it is established that defendant nos. 1 and 2 are close relatives to each other and both of them previously conducted a case by appointing common set of advocates and defendant no. 2 having the knowledge of previous contract purchase the property not in good faith rather it can be presumed that she along-with defendant no.1 by executing registered sale conveyance tried to defeat the plaintiff's right to have the contract successfully performed. Therefore, here in this case also as the defendant no. 2 was not a bonafied purchaser although she acquired title over the suit property, specific performance can be enforced against her if the plaintiff successfully proves his case otherwise.

[11] The said analogy, even though not in the same manner, has been accepted by the trial judge and has finally observed that the breach cannot adequately be made up by monetary compensation and the defendant No. 2 has failed to rebut the presumption as available under explanation (i) of Section 10 of Specific Relief Act. Thus, the suit was decreed. Against the said judgment and decree, the defendant No. 2 filed the appeal under Section 96 of the CPC being Title Appeal No.04 of 2015 which was dismissed by the impugned judgment dated 12.01.2016. It has been observed therein that the possession of the plaintiff having established shows that defendant No.2 in collusion with the defendant no. 1 managed to get the sale deed executed and registered.

[12] The appellant did raise serious objection that since the delivery of possession was caused along with execution of the agreement to sell, the agreement of sale was mandatorily registrable under Section 17 (1A) read with section 49 of the Registration Act, 1908 and Section 53 A of the Transfer of Property Act, 1882. Thereafter, the appellate court has observed that execution of the contract accompanied by delivery of possession or executed in favour of a person who is in possession is compulsorily registrable under Section 17 (1A) of the Registration Act 1908, but failure to register such contact would only deprive the person in possession of benefit conferred by Section 53A of the Transfer of Property Act, 1882.

[13] Having appreciated the agreement to sell (Exbt-2 series), the appellate court has returned the finding that the contention of the defendant No.1 that the period of payment of the remainder of the consideration price was three months cannot be accepted as the period has been clearly stipulated as two years in the said deed of agreement/contract to sale. The plaintiff has clearly pleaded his readiness and willingness and his approach to make the payment within the period. The appellate judge has concurred with the finding of the trial judge. This appeal is against the concurrent finding of fact. But this court has not accepted any substantial question of law having root in the pure fact.

[14] Mr. S. M. Chakraborty, learned senior counsel appearing for the appellant has categorically stated that Section 17 of the Specific Relief Act, 1963 has hit the suit and as such no decree ought to have been passed by the courts below for specific performance. For purpose of reference it would be apposite to reproduce the provisions of Section 17 of the Specific Relief Act, 1963:

Contract to sell or let property by one who has no title, not specifically enforceable.-

(1) A contract to sell or let any immovable property cannot be specifically enforced in favour of a vendor or lessor-

(a) who, knowing not to have any title to the property, has contracted to sell or let the property;

(b) who, though he entered into the contract believing that he had a good title to the property, cannot at the time fixed by the parties or by the Court for the completion of the sale or letting, give the purchaser or lessee a title free from reasonable doubt.

(2) The provisions of sub-section (1) shall also apply, as far as may be, to contracts for the sale or hire of movable property.

[15] It has been further stated that since the defendant No.1 had no absolute right over the suit land against him no decree of specific performance can be enforced. Mr. S. M. Chakraborty, learned senior counsel has brought to the notice of this court to the evidence led by the defendant No.2. From the judgment dated 08.02.2013 (Exbt-E series) delivered Title Suit (Partition) 37 of 2012 by the Civil Judge (Sr. Div) Unakoti, Kailashahar, it is evident that the said partition suit was institued in respect of the land including the suit land between the co-sharers, of whom the respondent No.1 is one. In the evidence of the said case, PW-1 has stated in his cross examination that some allocation of land was made in favour of various persons. He has categorically stated that in the Khatian, names of a few owners showing their possession on the plots of land, have been recorded. The defendant No. 1 in the suit, being Title Suit(P) 37 of 2012 from which this appeal arises testified made some statements which read as follows:

".......... as per amicable settlement I have also gave [sic] a portion of my land to my daughter in law (elder son Dilip Sen's wife) and on 29.7.2011 sold 0.59 acre of land to smt. Dipika Sen vide sale deed no.1-949 and registered on 24.10.2011 AD".

[16] The extracted part has come to the notice of this court while verifying the evidence at the instance of Mr. Chakraborty, learned senior counsel appearing for the appellant. Mr. Chakraborty, learned senior counsel in order to buttress his submission has relied on a decision of the apex court in Youngmen's Vysya Association reported in (2015) 5 SCC 355 where the apex court had occasion to observe vis-a-vis Section 17 of the Specific Relief Act, 1963 as follows:

The provisions of Section 17 of the Specific Relief Act in categorical term expressly state that a Contract to sell or let any immovable property cannot be specifically enforced in favour of a vendor or lessor who does not have absolute title and right upon the party. It is worthwhile to extract Section 17 of the Specific Relief Act, 1963 here :-

"17.-Contract to sell or let property by one who has no title, not specifically enforceable.- A contract to sell or let any immovable property cannot be specifically enforced in favour of a vendor or lessor;

(a) who, knowing not to have any title to the property, has contracted to sell or let the property;

(b) who, though he entered into the contract believing that he had a good title to the property, cannot at the time fixed by the parties or by the court for the completion of the sale or letting, give the purchaser or lessee a title free from reasonable doubt.

In view of the aforesaid provisions of the Specific Relief Act, the Agreement of Sale entered between the plaintiffs and some of the co-sharers who do not have the absolute title to the suit schedule property is not enforceable in law. This aspect of the matter has not been properly appreciated and considered by both the First Appellate Court and the Second Appellate Court. Therefore, the impugned judgment is vitiated in law.

Even assuming for the sake of argument that the agreement is valid, the names of three sons are mentioned in Agreement of Sale, out of whom the agreement is executed by defendant Nos. 1 and 2 and they assured that they would get the signatures of the 3rd brother namely, Srinivasa Rao and also the remaining 3 sisters. At the time of execution of this agreement signatures were not obtained. Therefore, the agreement is not executed by all the co-sharers of the property which fact is evident from the recitals of the document itself. Hence, the plaintiffs are not entitled for specific performance decree. This vital factual and legal aspect has been ignored by both the First Appellate Court and the Second Appellate Court. Therefore, the impugned judgment is vitiated both on facts and law. Accordingly, the point No. 1 is answered in favour of the defendants.

[17] Thereafter Mr. Chakraborty, learned senior counsel has projected his alternative submission in order to protect the subsequent title of the defendant No.2, the appellant. He has referred to section 19 of the Specific Relief Act, 1963 for this purpose. According to Mr. Chakraborty, learned senior counsel, the said provision protects the subsequent transferee. For purpose of reference, Section 19 of the Specific Relief Act, 1963 is gainfully reproduced:

"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 the plaintiff, might have been displaced by the defendant;

(d) when a company has entered into a contract and subsequently becomes amalgamated with another company, the new company which arises out of the amalgamation;

(e) when the promoters of a company have, before its incorporation, entered into a contract for the purpose of the company and such contract is warranted by the terms of the incorporation, the company:

Provided that the company has accepted the contract and communicated such acceptance to the other party to the contract."

[18] In this context, reference may be made to R.K. Mohammed Ubaidullah & Ors vs Hajee C. Abdul Wahab (D) and Others (the judgment dated 18.07.2000) where the apex court has having referred to Section 19 observed as follows:

"As can be seen from Section 19 (a) and (b) extracted above specific performance of a contract can be enforced against (a) either party thereto and (b) any person claiming under him by a title arising subsequent to the contract, except a transferee for value who has paid his money in good faith and without notice of the original contract. Section 19(b) protects the bona fide purchaser in good faith for value without notice of the original contract. This protection is in the nature of exception to the general rule. Hence the onus of proof of good faith is on the purchaser who takes the plea that he is an innocent purchaser. Good faith is a question of fact to be considered and decided on the facts of each case. Section 52 of the Penal Code emphasizes due care and attention in relation to the good faith. In the General Clauses Act emphasis is laid on honesty.

Notice is defined in Section 3 of the Transfer of Property Act. It may be actual where the party has actual knowledge of the fact or constructive. "A person is said to have notice" of a fact when he actually knows that fact, or when, but for willful abstention from an inquiry or search which he ought to have made, or gross negligence, he would have known it. Explanation II of said Section 3 reads:

"Explanation II - Any person acquiring any immoveable 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."

Section 3 was amended by the Amendment Act of 1929 in relation to the definition of 'notice'. The definition has been amended and supplemented by three explanations, which settle the law in several matters of great importance. For the immediate purpose Explanation-II is relevant. It states that actual possession is notice of the title of the person in possession. Prior to the amendment there had been some uncertainty because of divergent views expressed by various High Courts in relation to the actual possession as notice of title. A person may enter the property in one capacity and having a kind of interest. But subsequently while continuing in possession of the property his capacity or interest may change. A person entering the property as tenant later may become usufructuary mortgagee or may be agreement holder to purchase the same property or may be some other interest is created in his favour subsequently. Hence with reference to subsequent purchaser it is essential that he should make an inquiry as to title or interest of the person in actual possession as on the date when sale transaction was made in his favour. The actual possession of a person itself is deemed or constructive notice of the title if any, of a person who is for the time being in actual possession thereof. A subsequent purchaser has to make inquiry as to further interest, nature of possession and title under which the person was continuing in possession on the date of purchase of the property. In the case on hand defendants 2 to 4 contended that they were already aware of the nature of possession of the plaintiff over the suit property as a tenant and as such there was no need to make any inquiry. At one stage they also contended that they purchased the property after contacting the plaintiff, of course, which contention was negatived by the learned trial court as well as the High court. Even otherwise the said contention is self-contradictory. In view of Section 19(b) of the Specific Relief Act and definition of 'notice' given in Section 3 of the Transfer of Property Act read along with explanation II, it is rightly held by the trial court as well as by the High Court that the defendants 2 to 5 were not bona fide purchasers in good faith for value without notice of the original contract." [Emphasis added]

[19] There cannot be any amount of doubt that section 19(b) of the Specific Relief Act, 1963 protects the bona fide purchaser in good faith for value without notice to the original contract. This protection is in the nature of exception to the general rule. The onus of proof of good faith is on the purchaser who takes the plea that he is an innocent purchaser.

[20] For the plaintiff-respondent, Mr. R. Datta, learned counsel has submitted that even if the appellant had purchased the suit land having taken notice of the agreement to sale inasmuch as the appellant is the grand daughter through the nephew of the defendant No. 1. The said nephew of the defendant No.1 had live-interest in the un-partitioned property. Thus, it should be presumed that the notice of possession of the plaintiff pursuant to the agreement to sale did exist at the time of execution of the sale deed in favour of the defendant No. 2 (the appellant herein).

[21] Mr. Datta, learned counsel has referred a decision of the apex court in Dr. Govinddas and Anr. Vs Shrimati Shantibai And Ors reported in AIR 1972 SC 1520, where it has been held that if it is noticed that the evidence is contradictory, the court has then to decide whose version is more acceptable. The onus of proof was not very heavy on the plaintiff. The defendant No.2 (the appellant herein), DW-5 even did not state that she had no knowledge of the said agreement to sale. But in the cross-examination, she had admitted that after purchase of the suit land she had instituted the suit for perpetual injunction being TS 20/2012 and in that suit, an interim order for maintaining status quo had been passed.

[22] The apex court in Dr. Govinddas (supra) has observed that the onus in respect of proving that the party had no knowledge is not conventional. It has been observed by the apex court as follows:

First, all the parties are residents or have shops in the same vicinity and in places like this it is not probable that the appellants would not come to know of the execution of the agreement (Souda Chitthhi) of the plaintiff. Secondly, the haste with which the sale deed in favour of the appellants was executed was unusual. It is more usual for an agreement to be executed in such cases rather than arrive at an oral agreement on one day and have the sale deed executed the next day and registered the following day. For some reason the appellants were in a hurry to get the deed registered. What was the reason? In view of all the circumstances we are inclined to accept the evidence of Hem Raj Chouhan, and corroborated by Hayat, that Goverdhandas knew of the execution of the agreement with the plaintiff on March 1, 1960. [Emphasis added]

That apart, PW-2 Sudhir Chandra Roy has also categorically stated in the trial as follows:

"3. I had one week later there from talk about this contract for sale of this suit land by Debendra Ch. Sen to plaintiff with our neighbour Kanu Sen and his wife Dipika Sen who reside at their house at Kirtanthali which is about 500 cubits away from my house."

[23] The said statement has not been contested by the defendants at all. A similar statement has been made by DW-3 Krishnalal Deb, but there is no cross objection in respect of the statement made by him in this regard. As stated earlier, the case of the appellant is quite strange that subsequent to 29.07.2011 the defendant No. 1 and the plaintiff along with a deed writer and the stamp vendor collusively created the agreement to sale dated 05.03.2011 falsely. Even the suit, as filed by the defendant-respondent is collusive. She has stated in the cross examination that she was cultivating the land under the defendant No. 1, as Bargadar previously. In the cross examination she has admitted that she filed the vakalatnama along with defendant No. 1 is TS (P) 37 of 2012 and she has not enmity with anyone. Even DW-2, Anjana Sen has admitted that the said partition suit was conducted collectively and the defendant No.2 was part of that collective defence.

[24] In rejoinder, Mr. Chakraborty has submitted that without having granted a decree for enforcing specific performance, the plaintiff could have been compensated. In this regard, this court may refer to Section 20 of the Specific Relief Act, 1963 which provides as follows:

"20. Discretion as to decreeing specific performance. (1) The jurisdiction to decree specific performance is discretionary, and the court is not bound to grant such relief merely because it is lawful to do so; but the discretion of the court is not arbitrary but sound and reasonable, guided by judicial principles and capable of correction by a court of appeal.

(2) The following are cases in which the court may properly exercise discretion, not to decree specific performance:

(a) where the terms of the contract or the conduct of the parties at the time of entering into the contract or the other circumstances under which the contract was entered into are such that the contract, though not voidable, gives the plaintiff an unfair advantage over the defendant; or

(b) where the performance of the contract would involve some hardship on the defendant which he did not foresee, whereas its non-performance would involve no such hardship on the plaintiff; or

(c) where the defendant entered into the contract under circumstances which though not rendering the contract voidable, makes it inequitable to enforce specific performance.

Explanation 1.Mere inadequacy of consideration, or the mere fact that the contract is onerous to the defendant or improvident in its nature, shall not be deemed to constitute an unfair advantage within the meaning of clause (a) or hardship within the meaning of clause (b). Explanation 2. The question whether the performance of a contract would involve hardship on the defendant within the meaning of clause (b) shall, except in cases where the hardship has resulted from any act of the plaintiff subsequent to the contract, be determined with reference to the circumstances existing at the time of the contract.

(3) The court may properly exercise discretion to decree specific performance in any case where the plaintiff has done substantial acts or suffered losses in consequence of a contract capable of specific performance.

(4) The court shall not refuse to any party specific performance of a contract merely on the ground that the contract is not enforceable at the instance of the party."

[25] For purpose of exercising the discretion as to whether the decree be issued to enforce the specific performance, Section 20 is a complete code in respect of how to make the decision, sound and reasonable-guided by the judicial principle. The possibility of injury to the interest of the third party does not by itself, disentitle the plaintiff from specific performance. But it depends upon the facts and circumstances of each case, which will be meticulously considered by the court in the exercise of its discretion.

[26] In any case, whether the plaintiff has done substantial act and suffered losses in consequence of contract is generally entitled to specific performance. In Shivaji Yallappa Patil vs Ranajeet Appasaheb Patil (the judgment dated 14.06.2018) delivered in Civil Appeal No. 5012 of 2008, the apex court has observed as follows:

"12) In the instant case, Respondent Nos. 1 and 2 filed an original suit for the specific performance of the contract on the ground that owners of the suit property transferred the entire possession of property to them after agreement to sell and it was done in pursuance of part performance. Hence, plaintiffs are entitled for the benefit of Section 53A of the Transfer of Property Act, 1882 (In short the TP Act). Section 53 A which was added in 1929 and imports into India a modified form of the equity of part performance as developed in England in Elizabeth Maddison vs. John Alderson (1883) 8 App Cases 467. The following postulates are sine qua non for basing a claim on Section 53 A of the TP act, 1882:

• There must be a contract to transfer for consideration any immovable property.

• The contract must be in writing signed by the transferor, or by someone on his behalf.

• The writing must be in such words from which the terms necessary to construe the transfer can be ascertained.

• The transferee must be in part performance of the contract take possession of the property, or of any part thereof.

• The transferee must have done some act in furtherance of the contract.

• The transferee must have performed or be willing to perform his part of the contract.

13) It is well settled law that Section 53A of the TP Act confers no right on a party who was not willing to perform his part of the contract. A transferee has to prove that he was honestly ready and willing to perform his part under the contract.

14) In the present case, during the course of hearing, it is brought to our knowledge that both the trial court as well as the lower appellate court had proceeded to arrive at the conclusion that there was no delivery of possession in favour of the Respondent Nos. 1 and 2 herein as per the agreement to sell dated 28.05.1981 on the ground that there was no mention of delivery of possession. It is submitted that the said courts below had failed to appreciate the said judgment and decree dated 24.09.1987 of the learned Additional Munsiff, Hukkeri in O.S. No. 129 of 1984 in proper prospective which clearly shows that the said court having found the possession of Respondent Nos. 1 and 2 herein in respect of the said entire property including suit property had granted injunction in the matter and restrained the third party to interfere with the possession of Respondent Nos. 1 and 2 herein. Henceforth, Respondent Nos. 1 and 2 have been in possession of suit land against all other persons and can claim right of possession even against the subsequent purchaser."

[27] It emerges that the entire challenge was raised on the basis of the restriction imposed under Section 17 of the Specific Relief Act, 1963. In this regard, decision of the apex court in Pemmada Prabhakar (supra) cannot be mechanically applied, inasmuch as section 17 (1) (a) provides that who knowing not to have any title to the property has contracted to sell cannot be held as an absolute owner having due regard to the sections 43 and 44 of the Transfer of Property Act, 1882. The legislature has as well cautiously worded the provision by statuting "to help any title to the property". In a joint property the co-parcener definitely has "any title" but it is only in the form of share. Even, in the suit for partition, the plaintiff therein had admitted that the transaction of land had occurred despite the land was not partitioned. Even the appellant (the defendant No.2) had purchased the land when the land was not partitioned.

[28] In this regard, provision of Section 7 of Transfer of Property Act, 1882 may be referred to Section 7 provides that every person competent to contract and entitled to transferable property, is authorized to dispose of transferable property; that person is competent to transfer such property either wholly or in part or either absolutely or conditionally in the circumstances to the extent and in the manner allowed and prescribed by any law for the time being in force. To understand the prohibition under Section 17 the any title has to be understood having due regard to the provision of section 7 of the Transfer of Property Act, 1882. The sale may also be conditional to the extent and in the manner allowed and prescribed by any law. If the defendant No.1 did not have any title as argued by Mr. Chakraborty, learned senior counsel, he could not have transferred the suit land by the sale deed No.1-49 dated 28.10.2011.

[29] In the said deed the defendant No. 1 has categorically stated that the land transferred by the sale deed dated 28.10.2011 (Exbt-D) is his own land and he got that part of the land (the suit land) by the amicable settlement. Therefore, the defendant No.1 cannot be stated to have knowing himself not to have any title to the property transferred the same.

[30] Hence, this court is of the view that the substantial question as framed in respect of impact of Section 17 of the Specific Relief Act, does not hold any substance. The plaintiff-respondent had been in possession and in such state, the agreement to sale was executed. The other substantial question of law has become relevant in the context of the decree dated 18.02.2013 issued in Title Suit 37 (P) of 2012 (Exbt-8 series) inasmuch as it has been contended that the said land had been extracted out in favour of the defendant No.2 from the un-partitioned land. In the decree, it has been categorically stated that the defendant No. 2 (the appellant herein) of that suit being Title Suit 37 (P) 2012 will get 0.55 acre of land from the share of the defendant No.1, the respondent No. 2 in this appeal.

[31] True it is that so far the agreement to sale is concerned the appellant [the defendant No.2] does not have any obligation arising therefrom. But, since through her, a third party right has been created by virtue of the sale deed (Exbt-D series), her right has become inalienable part of the dispute.

[32] Having due regard to and consideration of all the aspects including whether the discretion enforcing specific performance will be applied or not, this court is of the opinion that it is a case where the possession was/is with the plaintiff and substantive part of the consideration price has been paid. That apart, the apparent readiness and willingness to make payment of the remainder within the stipulated period is expressed satisfying the requirement of Section 16(c) of the Specific Relief Act. Hence, the plaintiff (the respondent No. 1) is entitled to decree for enforcement for specific performance of the agreement to sale (Ext-2 series). Thus, the second substantial question of law is answered. This court is persuaded to make certain change in the impugned judgment and decree. In supersession, or quashing, wherever it is necessary it is directed that since the title of the suit land has been transferred to the defendant No. 2 qua defendant No.1 who had entered in the agreement of sale with the plaintiff, the defendant no. 2 [the appellant], is directed to execute the sale deed on receiving a sum of Rupees one lakh from the plaintiff (the respondent No. 1 herein) within a period of one month from the day of receiving the amount through the trial court. The cost of the preparation of the sale deed and the registration shall be borne by the plaintiff.

[33] Further, the plaintiff shall deposit the remainder of the consideration price in the trial court within three months from the day of issue of the decree. Such payment be communicated to the defendant No.2. The defendant No.2 shall also be perennially considered as authorized by the defendant No.1 for purpose of transfer in the manner as provided herein in respect of the suit land. Thus, by the said transfer both the respondent No. 1 and the appelant shall remain bound. The defendant no.2 [the appellant] shall have the right to realize the consideration money. She had paid to the defendant No.1 on setting off the said amount of Rupees one lakh as will be paid by the plaintiff in terms of the decree. For purpose of realization, the cause to litigate against the defendant No. 1, shall rise in favour of the plaintiff from the day of the decree in terms of the judgment.

Subject to the modification made above, the appeal stands dismissed.

Draw the decree accordingly.

Send down the LCRs thereafter.