Pronounced on Kanwal Kant & Another ant & Another v. Bhagwan Kaur
Case Details
RSA-139-1992 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA IN THE HIGH COURT OF PUNJAB AND HARYANA IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH AT CHANDIGARH RSA-139-1992 (O&M) RSA Reserved on: 18.08.2025 Reserved on Pronounced on: 25.08.2025 Pronounced on Kanwal Kant & Another ant & Another .....Appellants VERSUS Bhagwan Kaur (deceased) Smt. Bhagwan Kaur through her LRs & Others through her LRs .....Respondents .....Respondents HON'BLE MS. JUSTICE MANDEEP PANNU CORAM: HON'BLE MS. JUSTICE MANDEEP PANNU HON'BLE MS. JUSTICE MANDEEP PANNU Mr. M.L.Saggar, Sr. Advocate with Present: Mr. M.L.Saggar, Sr. Advocate with Mr. M.L.Saggar, Sr. Advocate with Advocate for the appellants. Ms. Armaan Saggar, Advocate for the appellants. Ms. Armaan Saggar, LRs of contesting respondents No.1 and 2 were proceeded LRs of contesting respondents No.1 and 2 were proceeded LRs of contesting respondents No.1 and 2 were proceeded ex- parte vide order dated 23.07.2025 -parte vide order dated 23.07.2025 MANDEEP PANNU, J (ORAL) MANDEEP PANNU, J (ORAL) 1. The present Regular Second Appeal has been preferred by the The present Regular Second Appeal has been preferred by the The present Regular Second Appeal has been preferred by the The present Regular Second Appeal has been preferred by the appellants/plaintiffs against the judgment and decree appellants/plaintiffs against the passed by judgment and decree dated 19.09.1991 passed by ppellate Court, whereby the decree of the learned trial Court the learned lower Appellate Court, whereby the decree of the learned trial Court ppellate Court, whereby the decree of the learned trial Court the learned lower plaintiffs for specific 1987 decreeing the suit of the appellants/plaintiffs for specific 1987 decreeing the suit of the dated 24.07.1987 decreeing the suit of the performance was reversed, and instead, the lower A performance was re ppellate Court granted only the versed, and instead, the lower Appellate Court granted only the alternative relief of refund of earnest money with interest. alternative relief of refund of earnest money with interest. alternative relief of refund of earnest money with interest. Brief Facts 2. laintiff, Kanwal Kant, filed a suit for specific performance Appellant/Plaintiff, Kanwal Kant, filed a suit for specific performance laintiff, Kanwal Kant, filed a suit for specific performance Appellant/
Facts
of contract against Bhagwan Kaur and six others. The case of the plaintiff was that of contract against Bhagwan Kaur and six others. The case of the plaintiff was that of contract against Bhagwan Kaur and six others. The case of the plaintiff was that of contract against Bhagwan Kaur and six others. The case of the plaintiff was that Bhagwan Kaur, widow of Arjun Singh, executed an agreement to sell dated Bhagwan Kaur, widow of Arjun Singh, executed an agreement to sell dated Bhagwan Kaur, widow of Arjun Singh, executed an agreement to sell dated Bhagwan Kaur, widow of Arjun Singh, executed an agreement to sell dated 28.05.1973 in his ell a plot for a total consideration of his favour, agreeing to sell a plot for a total consideration of ell a plot for a total consideration of ₹2,47,500/-. An amount of was paid as earnest money, and the balance . An amount of ₹36,000/- was paid as earnest money, and the balance was paid as earnest money, and the balance TRIPTI SAINI 2025.09.03 12:22 I attest to the accuracy and integrity of this document RSA-139-1992 (O&M) -2- Registrar at the time of execution of the sale deed. was to be paid before the Sub-Registrar at the time of execution of the sale deed. Registrar at the time of execution of the sale deed. was to be paid before the Sub The date fixed for the execution of the sale deed was 25.11.1973. The date fixed for the execution of the sale deed was The date fixed for the execution of the sale deed was 3. defendant It was a stipulation in the agreement that if respondent No.1/defendant It was a stipulation in the agreement that if It was a stipulation in the agreement that if No. 1, Bhagwan Kaur, was not able to get the portion of the plot vacated from No. 1, Bhagwan Kaur, was not able to get the portion of the plot vacated from No. 1, Bhagwan Kaur, was not able to get the portion of the plot vacated from No. 1, Bhagwan Kaur, was not able to get the portion of the plot vacated from who had industries installed therein, she would execute and register the tenants, who had industries installed therein, she would execute and register the who had industries installed therein, she would execute and register the who had industries installed therein, she would execute and register the ed of the remaining portion within the stipulated period. It was further sale deed of the remaining portion within the stipulated period. It was further ed of the remaining portion within the stipulated period. It was further ed of the remaining portion within the stipulated period. It was further agreed that if the vendee so desired, the sale deed of the entire plot could be agreed that if the vendee so desired, the sale deed of the entire plot could be agreed that if the vendee so desired, the sale deed of the entire plot could be agreed that if the vendee so desired, the sale deed of the entire plot could be executed in one lot. It was also agreed that if within the stipulated period the executed in one lot. It was also agreed that if within the stipulated period the executed in one lot. It was also agreed that if within the stipulated period the executed in one lot. It was also agreed that if within the stipulated period the btain possession of the portion under tenants and register vendor was unable to obtain possession of the portion under tenants and register btain possession of the portion under tenants and register vendor was unable to o the sale deed, then the vendee would be entitled to approach the Court for the sale deed, then the vendee would be entitled to approach the Court for the sale deed, then the vendee would be entitled to approach the Court for the sale deed, then the vendee would be entitled to approach the Court for enforcement of the contract, and in that event the vendor would be liable for costs enforcement of the contract, and in that event the vendor would be liable for costs enforcement of the contract, and in that event the vendor would be liable for costs enforcement of the contract, and in that event the vendor would be liable for costs vendee committed breach, the earnest and damages. On the other hand, if the vendee committed breach, the earnest vendee committed breach, the earnest and damages. On the other hand, if the money paid would be liable to forfeiture. money paid would be liable to forfeiture. 4. Before the stipulated date, i.e. 25.11. Before the stipulated date, i.e. 25 plaintiff came .11.1973, the appellant/plaintiff came to know that Bhagwan Kaur had taken a loan from the Department of Industries, to know that Bhagwan Kaur had taken a loan from the Department of Industries, to know that Bhagwan Kaur had taken a loan from the Department of Industries, to know that Bhagwan Kaur had taken a loan from the Department of Industries, dition that until the loan was paid off, she had no right to Punjab, under a condition that until the loan was paid off, she had no right to dition that until the loan was paid off, she had no right to Punjab, under a con transfer the plot. As Bhagwan Kaur could not obtain the necessary permission and transfer the plot. As Bhagwan Kaur could not obtain the necessary permission and transfer the plot. As Bhagwan Kaur could not obtain the necessary permission and transfer the plot. As Bhagwan Kaur could not obtain the necessary permission and clearance certificate from the Department of Industries, she made a subsequent clearance certificate from the Department of Industries, she made a subsequent clearance certificate from the Department of Industries, she made a subsequent clearance certificate from the Department of Industries, she made a subsequent inal agreement, extending the time for endorsement on the back of the original agreement, extending the time for inal agreement, extending the time for endorsement on the back of the orig performance until she was able to obtain the required clearance and permission, performance until she was able to obtain the required clearance and permission, performance until she was able to obtain the required clearance and permission, performance until she was able to obtain the required clearance and permission, with an undertaking to inform the plaintiff as soon as such permission and with an undertaking to inform the plaintiff as soon as such permission and with an undertaking to inform the plaintiff as soon as such permission and with an undertaking to inform the plaintiff as soon as such permission and clearance were obtained. clearance were obtained. 5. that he had always been ready and The appellant/plaintiff alleged that he had always been ready and that he had always been ready and The respondent No.1/defendant willing to perform his part of the contract. However, respondent No.1/defendant willing to perform his part of the contract. However, willing to perform his part of the contract. However, Bhagwan Kaur neither obtained the necessary clearance nor informed him No.1 - Bhagwan Kaur neither obtained the necessary clearance nor informed him Bhagwan Kaur neither obtained the necessary clearance nor informed him Bhagwan Kaur neither obtained the necessary clearance nor informed him TRIPTI SAINI 2025.09.03 12:22 I attest to the accuracy and integrity of this document RSA-139-1992 (O&M) -3- 1974, about it. Instead, through her counsel, she served notice dated 09.08.1974, about it. Instead, through her counsel, she served notice dated about it. Instead, through her counsel, she served notice dated 1973, intimating that she had extended the period of performance only up to 25.12.1973, intimating that she had extended the period of performance only up to 25 intimating that she had extended the period of performance only up to 25 plaintiff to pay the balance within six weeks, failing and called upon the appellant/plaintiff to pay the balance within six weeks, failing plaintiff to pay the balance within six weeks, failing and called upon the which she threatened to forfeit the earnest money. The plaintiff replied that which she threatened to forfeit the earnest money. The plaintiff replied that which she threatened to forfeit the earnest money. The plaintiff replied that which she threatened to forfeit the earnest money. The plaintiff replied that Bhagwan Kaur had failed to obtain the necessary permission and that the extension Bhagwan Kaur had failed to obtain the necessary permission and that the extension Bhagwan Kaur had failed to obtain the necessary permission and that the extension Bhagwan Kaur had failed to obtain the necessary permission and that the extension but until she obtained clearance and permission. of time was not till 25.12.1973, but until she obtained clearance and permission. but until she obtained clearance and permission. of time was not till 6. 1974, The parties exchanged communications. On 03.10.1974, The parties exchanged communications. On The parties exchanged communications. On the the appellant/plaintiff went to th e District Court with the necessary balance amount for plaintiff went to the District Court with the necessary balance amount for e District Court with the necessary balance amount for performance of the contract and remained present in Court, also moving an performance of the contract and remained present in Court, also moving an performance of the contract and remained present in Court, also moving an performance of the contract and remained present in Court, also moving an application expressing readiness to execute the sale deed. However, Bhagwan Kaur application expressing readiness to execute the sale deed. However, Bhagwan Kaur application expressing readiness to execute the sale deed. However, Bhagwan Kaur application expressing readiness to execute the sale deed. However, Bhagwan Kaur ed that Bhagwan Kaur intentionally did not turn up. The appellant/plaintiff alleged that Bhagwan Kaur intentionally ed that Bhagwan Kaur intentionally did not turn up. The concealed defects in her title and her inability to transfer the plot because of non- concealed defects in her title and her inability to transfer the plot because of non concealed defects in her title and her inability to transfer the plot because of non concealed defects in her title and her inability to transfer the plot because of non issuance of clearance certificate from the Industries Department. issuance of clearance certificate from the Industries Department. issuance of clearance certificate from the Industries Department. 7. The suit was contested by respondent No.1/ The suit was contested by defendant No. 1 alone, respondent No.1/defendant No. 1 alone, Respondent while the other defendants were proceeded against ex parte. Respondent while the other defendants were proceeded against ex parte. while the other defendants were proceeded against ex parte. Defendant No. 1 admitted her ownership of the property and execution of the No.1/Defendant No. 1 admitted her ownership of the property and execution of the Defendant No. 1 admitted her ownership of the property and execution of the Defendant No. 1 admitted her ownership of the property and execution of the agreement, as well as receipt of earnest money, but pleaded that she had filed a suit agreement, as well as receipt of earnest money, but pleaded that she had filed a suit agreement, as well as receipt of earnest money, but pleaded that she had filed a suit agreement, as well as receipt of earnest money, but pleaded that she had filed a suit the agreement which was pending in another Civil Court, and for setting aside the agreement which was pending in another Civil Court, and the agreement which was pending in another Civil Court, and for setting aside therefore the present suit was not maintainable. She contended that the contract therefore the present suit was not maintainable. She contended that the contract therefore the present suit was not maintainable. She contended that the contract therefore the present suit was not maintainable. She contended that the contract 1973. She further pleaded that no clearance or had come to an end on 25.11.1973. She further pleaded that no clearance or 1973. She further pleaded that no clearance or had come to an end on ale and that the plea of impediment was an permission was required to execute the sale and that the plea of impediment was an ale and that the plea of impediment was an permission was required to execute the s afterthought since the plaintiffs were not ready with the balance consideration. afterthought since the plaintiffs were not ready with the balance consideration. afterthought since the plaintiffs were not ready with the balance consideration. 8. by the appellant/plaintiff controverting the Replication was filed by the appellant/plaintiff controverting the by the appellant/plaintiff controverting the Replication was filed contentions of respondent No.1/defendant No.1- contentions of respondent No.1/defendant No.1 - Bhagwan Kaur. TRIPTI SAINI 2025.09.03 12:22 I attest to the accuracy and integrity of this document RSA-139-1992 (O&M) -4- 9. On the pleadings of the parties, learned trial Court framed the On the pleadings of the parties, learned trial Court framed the On the pleadings of the parties, learned trial Court framed the On the pleadings of the parties, learned trial Court framed the following issues:- following issues: 1) Whether the defendants committed breach of the agreement in Whether the defendants committed breach of the agreement in Whether the defendants committed breach of the agreement in question? OPP 2) Whether the plaintiffs had been ready and willing to perform their Whether the plaintiffs had been ready and willing to perform their Whether the plaintiffs had been ready and willing to perform their part of the contract? OPP 3) Whether the suit is bad for mis joinder of the defendants and ether the suit is bad for mis-joinder of the defendants and causes of actions?OPD 4) Whether the agreement is not admissible in law and has no legal Whether the agreement is not admissible in law and has no legal Whether the agreement is not admissible in law and has no legal force? OPD 5) Whether the relief of possession is premature and incompetent? Whether the relief of possession is premature and incompetent? Whether the relief of possession is premature and incompetent? OPD 6) ent in the way of sale as alleged Whether there is a legal impediment in the way of sale as alleged Whether there is a legal impedim in preliminary objection No.4 and 5 of the written statement? OPD in preliminary objection No.4 and 5 of the written statement? OPD in preliminary objection No.4 and 5 of the written statement? OPD 7) Whether the suit is not maintainable in the present form? OPD Whether the suit is not maintainable in the present form? OPD 8) Whether the value of suit for court fee and jurisdiction is wrong? Whether the value of suit for court fee and jurisdiction is wrong? Whether the value of suit for court fee and jurisdiction is wrong? OPD 9) ssence of the agreement? OPD Whether the time was essence of the agreement? OPD 10) Relief. 10) 10. Before conclusion of defendant’s evidence, an application under Before conclusion of defendant’s evidence, an application under Before conclusion of defendant’s evidence, an application under Before conclusion of defendant’s evidence, an application under was filed for of the Code of Civil Procedure, 1908 (for short, ‘CPC’) was filed for of the Code of Civil Procedure, 1908 (for short, ‘CPC’) Section 10 of the Code of Civil Procedure, 1908 (for short, ‘CPC’) stay of the present suit on the ground that her earlier suit for declaration that the stay of the present suit on the ground that her earlier suit for declaration that the stay of the present suit on the ground that her earlier suit for declaration that the stay of the present suit on the ground that her earlier suit for declaration that the hether the agreement had become infructuous was pending. Issue was framed “Whether the agreement had become infructuous was pending. Issue was framed agreement had become infructuous was pending. Issue was framed suit was liable to be stayed?” The trial Court vide order dated suit was liable to be stayed The trial Court vide order dated 05.19.1979 stay 1979 stayed the suit. TRIPTI SAINI 2025.09.03 12:22 I attest to the accuracy and integrity of this document RSA-139-1992 (O&M) -5- 11. The earlier suit filed by Bhagwan Kaur was, however, dismissed on The earlier suit filed by Bhagwan Kaur was, however, dismissed on The earlier suit filed by Bhagwan Kaur was, however, dismissed on The earlier suit filed by Bhagwan Kaur was, however, dismissed on 21.10.1980. Her appeal was dismissed on 1980. Her appeal was dismissed on 12.04. 1983, 12.04.1983. Thereafter, on 07.10.1983, her children, namely, Prabh Dayal Singh, Pritpal Singh, and Kirpal Randhawa, her children, namely, Prabh Dayal Singh, Pritpal Singh, and Kirpal Randhawa, her children, namely, Prabh Dayal Singh, Pritpal Singh, and Kirpal Randhawa, her children, namely, Prabh Dayal Singh, Pritpal Singh, and Kirpal Randhawa, declaration that they were in joint possession of the property along filed a suit for declaration that they were in joint possession of the property along declaration that they were in joint possession of the property along declaration that they were in joint possession of the property along with their mother, Bhagwan Kaur, and their other brothers, Bhupinder Pal Singh with their mother, Bhagwan Kaur, and their other brothers, Bhupinder Pal Singh with their mother, Bhagwan Kaur, and their other brothers, Bhupinder Pal Singh with their mother, Bhagwan Kaur, and their other brothers, Bhupinder Pal Singh tted their claim, setting up a and Suba Pal Singh. In that suit, Bhagwan Kaur admitted their claim, setting up a and Suba Pal Singh. In that suit, Bhagwan Kaur admi and Suba Pal Singh. In that suit, Bhagwan Kaur admi Will in her favour, but t ill was not proved. Preliminary decree was passed on ill in her favour, but the Will was not proved. Preliminary decree was passed on ill was not proved. Preliminary decree was passed on 21.11.1984 and final decree on 1985, holding each heir entitled to 1/7th and final decree on 12.06.1985, holding each heir entitled to 1/7th 1985, holding each heir entitled to 1/7th share. 12. plaintiffs moved for restoration of the On 19.10.1984, the appellants/plaintiffs moved for restoration of the plaintiffs moved for restoration of the On 19 Bhagwan Kaur stood dismissed. The suit was present suit since the earlier suit of Bhagwan Kaur stood dismissed. The suit was Bhagwan Kaur stood dismissed. The suit was present suit since the earlier suit of accordingly restored. During pendency, on 04.12. accordingly restored. During pendency, on 1985, Prabh Dayal Singh, son of 04.12.1985, Prabh Dayal Singh, son of Bhagwan Kaur, moved an application under Order I Rule 10 CPC to be impleaded Bhagwan Kaur, moved an application under Order I Rule 10 CPC to be impleaded Bhagwan Kaur, moved an application under Order I Rule 10 CPC to be impleaded Bhagwan Kaur, moved an application under Order I Rule 10 CPC to be impleaded ed his written statement as defendant No. 6. The application was allowed. He filed his written statement as defendant No. 6. The application was allowed. He fil as defendant No. 6. The application was allowed. He fil sharer and not exclusive owner, and alleging that Bhagwan Kaur was only a co-sharer and not exclusive owner, and sharer and not exclusive owner, and alleging that Bhagwan Kaur was only a co thus incompetent to enter into the agreement. He claimed that the agreement was thus incompetent to enter into the agreement. He claimed that the agreement was thus incompetent to enter into the agreement. He claimed that the agreement was thus incompetent to enter into the agreement. He claimed that the agreement was ollowing illegal and unenforceable against him and other heirs. On his pleadings, following illegal and unenforceable against him and other heirs. On his pleadings, illegal and unenforceable against him and other heirs. On his pleadings, additional Issue No. 9A was framed: additional Issue No. 9A was framed: hether Bhagwan Kaur was not the sole owner and competent to Whether Bhagwan Kaur was not the sole owner and competent to hether Bhagwan Kaur was not the sole owner and competent to “W execute the agreement to sell?OPD execute the agreement to sell ?OPD.” 13. Evidence was led by the parties. The trial Court, after hearing the Evidence was led by the parties. The trial Court, after hearing the Evidence was led by the parties. The trial Court, after hearing the Evidence was led by the parties. The trial Court, after hearing the performance in favour of the plaintiffs. parties, decreed the suit for specific performance in favour of the plaintiffs. parties, decreed the suit for specific Findings of the First Appellate Court Findings of the First Appellate Court 14. Defendant No. 6-Prabh Dayal Deol Defendant No. 6 alone filed appeal. The lower Prabh Dayal Deol alone filed appeal. The lower ppellate Court concurred with the trial Court on all issues except Issue No. 9A. It Appellate Court concurred with the trial Court on all issues except Issue No. 9A. It ppellate Court concurred with the trial Court on all issues except Issue No. 9A. It ppellate Court concurred with the trial Court on all issues except Issue No. 9A. It TRIPTI SAINI 2025.09.03 12:22 I attest to the accuracy and integrity of this document RSA-139-1992 (O&M) -6- been allotted to Arjun Singh in 1958 by the Director of held that the plot had been allotted to Arjun Singh in 1958 by the Director of been allotted to Arjun Singh in 1958 by the Director of held that the plot had Industries. On his death in 1970, the property devolved upon his natural heirs Industries. On his death in 1970, the property devolved upon his natural heirs Industries. On his death in 1970, the property devolved upon his natural heirs Industries. On his death in 1970, the property devolved upon his natural heirs 1964 in favour of Bhagwan Kaur was not equally. The alleged Will dated 10.03.1964 in favour of Bhagwan Kaur was not 1964 in favour of Bhagwan Kaur was not equally. The alleged PA was not sufficient proof as the proved in accordance with law. The copy Ex. PA was not sufficient proof as the proved in accordance with law. The copy Ex. proved in accordance with law. The copy Ex. attesting witnesses were not examined. Ingredients of attesting witnesses were not examined. Sections 63 of the Indian Ingredients of Sections 63 of the Indian Succession Act and 68 of the Evidence Act were not satisfied. It was thus held that Succession Act and 68 of the Evidence Act were not satisfied. It was thus held that Succession Act and 68 of the Evidence Act were not satisfied. It was thus held that Succession Act and 68 of the Evidence Act were not satisfied. It was thus held that into the agreement. Bhagwan Kaur was not exclusive owner and could not enter into the agreement. Bhagwan Kaur was not exclusive owner and could not enter Bhagwan Kaur was not exclusive owner and could not enter 15. ppellate Court further held that as Bhagwan Kaur had The lower Appellate Court further held that as Bhagwan Kaur had ppellate Court further held that as Bhagwan Kaur had The lower taken a loan from the Industries Department and resumption proceedings were taken a loan from the Industries Department and resumption proceedings were taken a loan from the Industries Department and resumption proceedings were taken a loan from the Industries Department and resumption proceedings were pending, she was not in a position to convey title. Referring to the statement pending, she was not in a position to convey title. Referring to pending, she was not in a position to convey title. Referring to statement of therefore, bserved that resumption of the plot was still subsisting. It, therefore bserved that resumption of the plot was still subsisting. It PW8, it observed that resumption of the plot was still subsisting. It refused specific performance but directed refund of earnest money with interest. refused specific performance but directed refund of earnest money with interest. refused specific performance but directed refund of earnest money with interest. refused specific performance but directed refund of earnest money with interest.
Legal Reasoning
Having considered the record and the rival contentions, this Court is Having considered the record and the rival contentions, this Court is Having considered the record and the rival contentions, this Court is Having considered the record and the rival contentions, this Court is whether satisfied that the decisive controversy turns on Issue No. 9-A i.e “whether satisfied that the decisive controversy turns on Issue No. 9 satisfied that the decisive controversy turns on Issue No. 9 Bhagwan Kaur was not the sole owner and competent to execute the agreement to Bhagwan Kaur was not the sole owner and competent to execute the agreement to Bhagwan Kaur was not the sole owner and competent to execute the agreement to Bhagwan Kaur was not the sole owner and competent to execute the agreement to sell?” 19. Firstly, the procedural history supports the Firstly, plaintiffs case. ral history supports the appellants/plaintiffs case.
Arguments
Submissions of learned counsel for the appellant Submissions of learned counsel for the appellant Submissions of learned counsel for the appellant 16. Learned counsel for the appellants contends that the lower Appellate Learned counsel for the appellants contends that the lower Appellate Learned counsel for the appellants contends that the lower Appellate Learned counsel for the appellants contends that the lower Appellate Court has erred in recording a finding that Bhagwan Kaur was not exclusive owner Court has erred in recording a finding that Bhagwan Kaur was not exclusive owner Court has erred in recording a finding that Bhagwan Kaur was not exclusive owner Court has erred in recording a finding that Bhagwan Kaur was not exclusive owner of the suit property and, therefore, was not entitled to enter into any agreement to of the suit property and, therefore, was not entitled to enter into any agreement to of the suit property and, therefore, was not entitled to enter into any agreement to of the suit property and, therefore, was not entitled to enter into any agreement to ther submits that appellants/plaintiffs are not the propounders sell the same. He further submits that appellants/plaintiffs are not the propounders ther submits that appellants/plaintiffs are not the propounders sell the same. He fur of the Will and have not claimed any title through it. Rather, Bhagwan Kaur has of the Will and have not claimed any title through it. Rather, Bhagwan Kaur has of the Will and have not claimed any title through it. Rather, Bhagwan Kaur has of the Will and have not claimed any title through it. Rather, Bhagwan Kaur has out all the litigations and her status always claimed exclusive ownership through-out all the litigations and her status out all the litigations and her status always claimed exclusive ownership through of ownership has only been challenged by defendant No.6 of ownership has only been cha Prabh Dayal, just to llenged by defendant No.6 – Prabh Dayal, just to defeat the interest of the appellants/plaintiffs. Furthermore, the lower Appellate defeat the interest of the appellants/plaintiffs. Furthermore, the lower Appellate defeat the interest of the appellants/plaintiffs. Furthermore, the lower Appellate defeat the interest of the appellants/plaintiffs. Furthermore, the lower Appellate Court has also erred in burdening the appellants/plaintiffs with the onus to prove Court has also erred in burdening the appellants/plaintiffs with the onus to prove Court has also erred in burdening the appellants/plaintiffs with the onus to prove Court has also erred in burdening the appellants/plaintiffs with the onus to prove the Will. TRIPTI SAINI 2025.09.03 12:22 I attest to the accuracy and integrity of this document RSA-139-1992 (O&M) -7- 17. No one has contested the present appeal on behalf No one has contested the the respondents. It present appeal on behalf the respondents. It is pertinent to mention here that legal representatives of contesting respondents is pertinent to mention here that legal representatives of contesting respondents is pertinent to mention here that legal representatives of contesting respondents is pertinent to mention here that legal representatives of contesting respondents No.1 and 2 were proceeded against ex parte vide order dated 23.07.2025. No.1 and 2 were proceeded against ex parte vide order dated 23.07.2025. No.1 and 2 were proceeded against ex parte vide order dated 23.07.2025. Findings 18.
Decision
order On an application under Section 10 CPC, the present suit was stayed vide order On an application under Section 10 CPC, the present suit was stayed On an application under Section 10 CPC, the present suit was stayed dated 05.09.1979 because of 1979 because of the earlier suit filed by Bhagwan Kaur seeking a the earlier suit filed by Bhagwan Kaur seeking a ctuous and that earnest money declaration that the agreement had become infructuous and that earnest money declaration that the agreement had become infru declaration that the agreement had become infru her appeal stood forfeited. That earlier suit was dismissed on 21.10.1980 and her appeal stood forfeited. That earlier suit was dismissed on stood forfeited. That earlier suit was dismissed on dismissed on 12.04. 12.04.1983. It was only thereafter, on , that the sons of 1983. It was only thereafter, on 07.10.1983, that the sons of Bhagwan Kaur ant No. 6 including Prabh Dayal Singh (later impleaded as defendant No. 6 including Prabh Dayal Singh (later impleaded as defend on 04.12.1985), instituted a separate suit claiming that they, along with their 04.12.1985), instituted a separate suit claiming that they, along with their instituted a separate suit claiming that they, along with their set up a mother and brothers, were joint in possession. In that suit Bhagwan Kaur set up a mother and brothers, were joint in possession. In that suit Bhagwan Kaur mother and brothers, were joint in possession. In that suit Bhagwan Kaur 1984 and a final ill in her favour and a preliminary decree followed on 21.11.1984 and a final ill in her favour and a preliminary decree followed on Will in her favour and a preliminary decree followed on decree on 12.06. 1985 declaring 1/7th share of Bhagwan Kaur. The timing and 12.06.1985 declaring 1/7th share of Bhagwan Kaur. The timing and 1985 declaring 1/7th share of Bhagwan Kaur. The timing and tenor of these later proceedings, commenced during the pendency of the present tenor of these later proceedings, commenced during the pendency of the present tenor of these later proceedings, commenced during the pendency of the present tenor of these later proceedings, commenced during the pendency of the present specific-performance and long after Bhagwan Kaur had herself sued to forfeit performance suit and long after Bhagwan Kaur had herself sued to forfeit and long after Bhagwan Kaur had herself sued to forfeit agreement treating herself as full owner, weigh against the credibility of the the agreement treating herself as full owner, weigh against the credibility of the agreement treating herself as full owner, weigh against the credibility of the agreement treating herself as full owner, weigh against the credibility of the defence to resist performance. defence to resist performance. 20. A, the lower appellate court reversed the trial court Turning to Issue 9-A, the lower appellate court reversed the trial court A, the lower appellate court reversed the trial court Turning to Issue 9 o Arjun Singh on findings on this issue by holding that the plot had been allotted to Arjun Singh on findings on this issue by holding that the plot had been allotted t findings on this issue by holding that the plot had been allotted t TRIPTI SAINI 2025.09.03 12:22 I attest to the accuracy and integrity of this document RSA-139-1992 (O&M) -8- 1970 1958 by the Director of Industries and that Arjun Singh died on 03.05.1970 1958 by the Director of Industries and that Arjun Singh died on 12.06.1958 by the Director of Industries and that Arjun Singh died on and his estate devolved equally upon his natural heirs and that the copy Ex. PA of and his estate devolved equally upon his natural heirs and that the copy Ex. PA of and his estate devolved equally upon his natural heirs and that the copy Ex. PA of and his estate devolved equally upon his natural heirs and that the copy Ex. PA of the will dated 10.03. 1964 was not proved in accordance with Sections 63 of the 1964 was not proved in accordance with Sections 63 of 10.03.1964 was not proved in accordance with Sections 63 of Indian Succession Act and 68 of the Evidence Act, as no attesting witness was Indian Succession Act and 68 of the Evidence Act, as no attesting witness was Indian Succession Act and 68 of the Evidence Act, as no attesting witness was Indian Succession Act and 68 of the Evidence Act, as no attesting witness was examined and registration officials deposed only examined and registration officials register entries. On that only about register entries. On that footing, it concluded Bhagwan Kaur was not exclusive owner and thus footing, it concluded Bhagwan Kaur was not exclusive owner and thus footing, it concluded Bhagwan Kaur was not exclusive owner and thus footing, it concluded Bhagwan Kaur was not exclusive owner and thus the agreement for the entirety. incompetent to enter into the agreement for the entirety. incompetent to enter into 21. ppellate This Court is unable to agree with this approach of lower Appellate This Court is unable to agree with This Court is unable to agree with ill as they do not derive title The plaintiffs are not the propounders of the Will as they do not derive title The plaintiffs are not the propounders of the Court. The plaintiffs are not the propounders of the The will was through it and were not asserting it as the root of their claim. The will was through it and were not asserting it as the root of their claim. through it and were not asserting it as the root of their claim. consistently invoked by Bhagwan Kaur herself across litigations to project consistently invoked by Bhagwan Kaur herself across litigations to project consistently invoked by Bhagwan Kaur herself across litigations to project consistently invoked by Bhagwan Kaur herself across litigations to project the present case by defendant No-6 the present case by defendant N exclusive ownership but was being denied in the present case by defendant N exclusive ownership but was being denied in apparently in connivance with Bhagwan Kaur so it was expected from Bhagwan apparently in connivance with Bhagwan Kaur so it was expected from Bhagwan apparently in connivance with Bhagwan Kaur so it was expected from Bhagwan apparently in connivance with Bhagwan Kaur so it was expected from Bhagwan Kaur not to produce the original ill. Having chosen to rest on exclusive title roduce the original Will. Having chosen to rest on exclusive title ill. Having chosen to rest on exclusive title while contracting in 1973, and having pleaded as such in her earlier declaratory while contracting in 1973, and having pleaded as such in her earlier declaratory while contracting in 1973, and having pleaded as such in her earlier declaratory while contracting in 1973, and having pleaded as such in her earlier declaratory suit to forfeit the agreement (filed on 29.04. suit to forfeit the agreement (filed on 1976), Bhagwan Kaur cannot, in 29.04.1976), Bhagwan Kaur cannot, in equity, be permitted to defeat specific performance by declining equity, be permitted to defeat to produce and specific performance by declining to produce and ill she repeatedly invoked when it suited her. Her withholding of prove the very Will she repeatedly invoked when it suited her. Her withholding of ill she repeatedly invoked when it suited her. Her withholding of prove the very W the original Will while compelling the ill while compelling the appellants/ plaintiffs to resort to secondary appellants/plaintiffs to resort to secondary evidence by summoning certified copy and register entries through Sub evidence by summoning certified copy and Registrar register entries through Sub-Registrar officials warrants an adverse inference against her, particularly when coupled with officials warrants an adverse inference against her, particularly when coupled with officials warrants an adverse inference against her, particularly when coupled with officials warrants an adverse inference against her, particularly when coupled with her own repeated assertions of exclusivity in pleadings and conduct. In these her own repeated assertions of exclusivity in pleadings and conduct. In these her own repeated assertions of exclusivity in pleadings and conduct. In these her own repeated assertions of exclusivity in pleadings and conduct. In these t the time of contracting, circumstances, the trial court rightly accepted that, at the time of contracting, circumstances, the trial court rightly accepted that, a circumstances, the trial court rightly accepted that, a Bhagwan Kaur held and asserted full title and competence to sell, and it decreed Bhagwan Kaur held and asserted full title and competence to sell, and it decreed Bhagwan Kaur held and asserted full title and competence to sell, and it decreed Bhagwan Kaur held and asserted full title and competence to sell, and it decreed ppellate court’s insistence that the performance accordingly. The lower Appellate court’s insistence that the ppellate court’s insistence that the performance accordingly. The lower TRIPTI SAINI 2025.09.03 12:22 I attest to the accuracy and integrity of this document RSA-139-1992 (O&M) -9- appellants/plaintiffs must prove the Will, though they are not its propound appellants/plaintiffs must prove the W ers, ill, though they are not its propounders, misdirects the burden and ignores the vendor’s consistent admissions and misdirects the burden and ignores the vendor’s consistent admissions and misdirects the burden and ignores the vendor’s consistent admissions and misdirects the burden and ignores the vendor’s consistent admissions and representations forming the very basis of the contract. representations forming the very basis of the contract. representations forming the very basis of the contract. 22. Coming to the next question the A Coming to the next question the ourt below observed that Appellate Court below observed that sisted due to non payment of loan resumption of plot by industries depart still subsisted due to non payment of loan resumption of plot by industries depart still sub resumption of plot by industries depart still sub and that due to that reason specific performance cannot be ordered, this court does and that due to that reason specific performance cannot be ordered, this court does and that due to that reason specific performance cannot be ordered, this court does and that due to that reason specific performance cannot be ordered, this court does not find itself in agreement with the same as the trial court has dealt with this not find itself in agreement with the same as the trial court has dealt with this not find itself in agreement with the same as the trial court has dealt with this not find itself in agreement with the same as the trial court has dealt with this umber 13 of the judgement proposition in detail and in right perspective in para number 13 of the judgement proposition in detail and in right perspective in para n proposition in detail and in right perspective in para n under issue No.6 No.6 by observing that there is a letter PW 10/1 indicating that the by observing that there is a letter Ex.PW 10/1 indicating that the plot originally allotted to Arjun Singh had been resumed by the department for plot originally allotted to Arjun Singh had been resumed by the department for plot originally allotted to Arjun Singh had been resumed by the department for plot originally allotted to Arjun Singh had been resumed by the department for want of certain violations, but subsequently there is a deed of conveyance in favour want of certain violations, but subsequently there is a deed of conveyance in favour want of certain violations, but subsequently there is a deed of conveyance in favour want of certain violations, but subsequently there is a deed of conveyance in favour of Arjun Singh and also an office noting Ex.PW 10 /B to the effe of Arjun Singh and also an office noting ct that the entire PW 10 /B to the effect that the entire principal amount has been paid. In this way, there cannot be said to be any legal principal amount has been paid. In this way, there cannot be said to be any legal principal amount has been paid. In this way, there cannot be said to be any legal principal amount has been paid. In this way, there cannot be said to be any legal impediment in the matter of getting the sale deed registered. It is pertinent to impediment in the matter of getting the sale deed registered. It is pertinent to impediment in the matter of getting the sale deed registered. It is pertinent to impediment in the matter of getting the sale deed registered. It is pertinent to mention here that findings on Issue Nos. 1 to 6 were not challenged mention here that findings on ed lower 6 were not challenged. Learned lower ppellate court erred in holding that resumption still existed, the findings being Appellate court erred in holding that resumption still existed, the findings being ppellate court erred in holding that resumption still existed, the findings being ppellate court erred in holding that resumption still existed, the findings being without any basis. without any basis. 23. In the said premises, this Court holds In the ppellate premises, this Court holds that (i) the lower Appellate the plaintiffs ourt misdirected itself in shifting the burden regarding the will onto the plaintiffs ourt misdirected itself in shifting the burden regarding the will Court misdirected itself in shifting the burden regarding the will and in ignoring Bhagwan Kaur’s repeated assertions of exclusive ownership and and in ignoring Bhagwan Kaur’s repeated assertions of exclusive ownership and and in ignoring Bhagwan Kaur’s repeated assertions of exclusive ownership and and in ignoring Bhagwan Kaur’s repeated assertions of exclusive ownership and her withholding of the original W ill; (ii) its conclusion that resumption subsisted is er withholding of the original Will; (ii) its conclusion that resumption subsisted is ill; (ii) its conclusion that resumption subsisted is contrary to the pleadings and the evidence which show that resumption stood contrary to the pleadings and the evidence which show that resumption stood contrary to the pleadings and the evidence which show that resumption stood contrary to the pleadings and the evidence which show that resumption stood appealed and later revoked/cancelled; (iii) the endorsement extending time till appealed and later revoked/cancelled; (iii) the endorsement extending time till appealed and later revoked/cancelled; (iii) the endorsement extending time till appealed and later revoked/cancelled; (iii) the endorsement extending time till departmental clearance/permission squarely fixes the duty on the vendor and departmental clearance/permission squarely fixes the duty on the vendor and departmental clearance/permission squarely fixes the duty on the vendor and departmental clearance/permission squarely fixes the duty on the vendor and vindicates the appellants/ appellants/plaintiffs’ readiness; and (iv) the trial C ourt’s decree readiness; and (iv) the trial Court’s decree TRIPTI SAINI 2025.09.03 12:22 I attest to the accuracy and integrity of this document RSA-139-1992 (O&M) -10- performance accords with the contract, the evidence, and the granting specific performance accords with the contract, the evidence, and the performance accords with the contract, the evidence, and the granting specific equities. The findings of the trial court, returned after a detailed appreciation of equities. The findings of the trial court, returned after a detailed appreciation of equities. The findings of the trial court, returned after a detailed appreciation of equities. The findings of the trial court, returned after a detailed appreciation of oral and documentary evidence, are restored and oral and documentary evidence, are restored the contrary findings of the lower and the contrary findings of the lower Appellate Court on Issue 9 A and on the supposed impossibility of performance ourt on Issue 9-A and on the supposed impossibility of performance A and on the supposed impossibility of performance are set aside. Conclusion 24. ourt For all the above reasons, the findings of the lower Appellate Court For all the above reasons, the findings of the lower For all the above reasons, the findings of the lower are reversed and those of the trial court are upheld. The plaintiffs are entitled to are reversed and those of the trial court are upheld. The plaintiffs are entitled to are reversed and those of the trial court are upheld. The plaintiffs are entitled to are reversed and those of the trial court are upheld. The plaintiffs are entitled to 1973. Consequently, the specific performance of the agreement to sell dated 28.05.1973. Consequently, the specific performance of the agreement to sell dated specific performance of the agreement to sell dated Regular Second Appeal stands allowed. T Second Appeal stands allowed. The decree of the dated he decree of the learned trial Court dated learned decreeing the suit for specific performance is upheld and the learned decreeing the suit for specific performance is 24.07.1987 decreeing the suit for specific performance is lower Appellate ppellate Court’s decree dated 19.09.1991 confining relief to refund with dated 19.09.1991 confining relief to refund with interest is set aside. interest is set aside. 25. Pending application(s), if any, also stand disposed of. Pending application(s), if any, also stand disposed of. Pending application(s), if any, also stand disposed of. 2025 August 25, 2025 tripti (MANDEEP PANNU) JUDGE Whether speaking/non-speaking : Speaking speaking : Speaking Whether speaking/non : Yes/No : Yes/No Whether reportable Whether reportable TRIPTI SAINI 2025.09.03 12:22 I attest to the accuracy and integrity of this document