Tara Singh vs Smt. Charan Kaur and others

Shamsher Bahadur, J.—This is an appeal of Tara Singh plaintiff whose suit for possession of 40 Kanals and 18 Marlas of land in village Kandhala Jattan of Tehsil Dasuya by way of specific performance on payment of Rs. 5000 though decreed by the Court of the Subordinate-Judge, Dasuya, has been dismissed in appeal by the learned Additional District Judge, Hosbiarpur.

On 27th of November, 1963, the first respondent Charan Kaur entered into an agreement of sale of the disputed land with Tara Singh for a sum of Rs. 7000. According to. the agreement, which, is Exhibit P. 2, the sale-deed was to be executed on 27th of April, 1964 and the expenses of the registration were to be equally shared between the vendor and the vendee. A payment of Rs. 2000 was made as earnest money and the balance of Rs. 5000 was to be paid on 27th of April, 1964. Another term of the agreement,(Exhibit P. 2) was. that should Charan Kaur fail to exeeute the agreement, the sum of Rs. 2000 was to be refunded in addition to a sum of Rs. 500. If however, the breach was committed by the vendee, the amount, of Rs. 2000 which had already beempaid, would stand forfeited. On 27th of April, 1964, both parties reached the office of the Sub Registrar, Dasuya, where the document was to be registered, f thought the allegation, of each, side is that the other arrived there late. An application was submitted that day by Charan Kaur for extension of the date of registration by two days.. According to this application which is Exhibit P. 3, the registration was to take place on 27th of April 1964 and the reason given for this extension was that the requisite stamp was not available. The stamp paper for the sale-deed was purchased on 29th of April, 1964, and according to the evidence of the treasurer, Babu Ram, who appeared as P.W. 3, the stamp was purchased in the presence of. the first respondent Charan Kaur Tara Singh appellant and Darshan Singh, the fourth respondent.

It is common ground that the sale between the parties did not take place on 29th of April, 1964, and on the next day Charan Kaur entered unto a new agreement with respondents 2 to 4, Gian Singh, Resham Singh and Darhan Singh Sons of Atma Singh, for the sale of the disputed land this time for a sum of Rs. 6,600. The sale-deed Exhibit D. 1 was actually executed on 2nd of May, 1964.

Tara Singh plaintiff appellant lost no time in bringing the present suit for specific performance of the contract and the plaint was filed on 5th of May, 1964. Each party alleged against the other that the agreement of sate bad been breached and the learned trial Judge being of the view that the plaintiff had made, out his case granted a decree for possession of the suit land by specific performance on payment of a sum of Rs. 5000. This decree passed on 13th of December, 1965, has been set aside by the Additional District Judge, Hoshiarpur, on 25th of April, 1966, on two grounds. It has been found that the plaintiff himself having insisted on insertion of certain terms in the sale-deed which was not warranted by the agreement of sale, committed the breach and disentitled himself to a decree for specific performance. The lower appellate Court further held that respondents 2 to 4 being tenants on the suit land were in any event entitled to possession by way of pre-emption and a decree for specific performance in such a situation would have been futile and infructuous. The appeal filed by Charan Kaur defendant was accordingly allowed and the suit of the plaintiff dismissed.

Mr. Atma Ram, the Learned Counsel for the appellant has challenged the finding of the lower appellate Court that Tara Singh was himself responsible for the breach. It is pointed out that the plaintiff had definitely alleged in the plaint that he was at all times ready and willing to perform his part of the contract and this plea has never been traversed in the written statement. It is argued by Mr. Atma Ram that in the written statement all that was urged was that the plaintiff wanted the insertion of certain invalid conditions in the sale-deed and for this reason she had declined to execute the agreement. The absence of such an assertion in the written statement does not affect the decision of the lower appellate Court on the first issue in point which is in these words :

Whether the plaintiff has been ready and willing to perform his part of the contract ?" The lower appellate Court has relied on the statement made by the petition-writer Hargopal Singh who admitted in cross-examination that the appellant vendee wanted a condition to be drawn up in the sale-deed that if he come to be deprived of any portion of the land sold to him the vendor would be liable to compensate him from her other land. It seems to us that the finding of the lower appellate Court, based as it is on evidence, is not open to challenge in second appeal and all that Mr. Atma Ram has urged is that even if such a demand for insertion of this condition was made by the appellant it really amounted to a warranty of title which is implied in law under subsection (2) of section 55 of the Transfer of Property Act which says that:

The seller shall be deemed to contract with the buyer that the interest which the seller professes to transfer to the buyer subsists and that he has power to transfer the same.

This sub-section merely implies a covenant for title and nothing more. It does not result in an obligation which can be implied in law that the seller binds himself to make compensation to the buyer should there be found to be a defect in his title subsequently by parting with some other land in lieu of the one in which the title has been found to be defective. It is also urged by Mr. Atma Ram that in Exhibit D. 1 which was executed between the first respondent and respondents 2 to 4 on 2nd of May, 1964, a similar term had been inserted. Even if that be so, the existence of such term does not empower the Court to infer that a similar warranty should be implied under provisions of sub-section (2) of section 55 of the Transfer of Property Act. The conclusion of the learned trial Judge that the mere presence of the plaintiff at Dasuya on 27th of April, 1964, and again on 29th of April, 1964, showed that he was ready and willing to perform his part of the contract cannot be sustained as be has failed to discuss the evidence of Hargopal Singh which has a bearing on the first issue and the finding reached by the lower appellate Court, in our view, is unchallengeable in second appeal.

In view of this finding it is unnecessary to discuss the other question whether respondents 2 to 4 as tenants on the land were entitled to Pre-empt it under the provisions of section 15 of the Punjab Pre emption Act, 1913. As a good deal of argument has been addressed by both counsel on this aspect of the case, it would be sufficient to say that the case is governed by sub-section (i) of section 15 which vests the right of pre-emption in respect of agricultural land and village immovable property, where the sale is by a sole owner, inter alia in the tenant who holds under tenancy of the vendor the land or property sold or a part thereof. The position of the appellant is that the case is governed by sub section (2) which, notwithstanding anything contained in sub-section (1) of section 15, says that:

Where the sale is by a female of land or property to which she has succeeded through her father or brother or where the sale is by a female of land or property to which she had succeeded through her husband, the right of pre-emption shall vest" in persons in which a tenant is not included.

The property in this case has descended to Charan Kaur from her mother Ind Kaur as is stated in Exhibit P. 2 and clearly this is not a sale by female to which she has succeeded either through her father or brother or through her husband. As held by a Division Bench of this Court of Mabajan and Narula JJ. in Jai Singh v. Mughla (1967) 69 P.L.R. 475, a sale by a female as a sole owner under clause (a) of sub-section (1) of section 15 of the Punjab Pre-emption Act is separate and distinguishable from a sale by a female of property which she has inherited from her father or brother or husband. In this case, the sale was clearly made by Charan Kaur as sole owner, the property having descended to her from her mother. In such a situation, respondents 2 to 4 had the right to preempt the sale.

In our view there is no force in this appeal which fails and is dismissed with costs.

S.B. Capoor, J.

I agree.