any arrangement between the partners relating to the distribution of the assets consequent on dissolution of the partnership is not an income and not liable to tax as capital gains. "S.45(4) The profits or gains arising from the transfer of a capital asset by way of distribution of capital assets on the dissolution of a firm or other association of persons or body of individuals ( not being a company or a co- operative society) or otherwise, shall be chargeable to tax as the income of the firm, association or body, of the previous year in which the said transfer takes place and, for the purpose of section 48, the fair market value of the asset on the date of such transfer shall be deemed to be the full value of the consideration received or accruing as a result of the transfer." Thus it is clear that the legislature, even though it was aware of the above decisions, did not choose to amend the law by making the partner liable when it amended the I.T Act,1961 by introducing clause (4) to s.45 by the Finance Act,1987 w.e.f 1.4.1988 and made only the firm liable. Therefore the contention of the assessee has to be accepted and that of the Revenue is liable to be rejected. 23. In this view of the matter, this appeal is allowed and the order of the I.T.A.T., confirming the orders of the C.I.T (Appeals) and the respondent is set aside. No costs.

HONOURABLE SRI JUSTICE GODA RAGHURAM AND HONOURABLE SRI JUSTICE M.S.RAMACHANDRA RAO

I.T.T.A.No.70 of 2000

03.08.2012

Shri Chalasani Venkateswara Rao, Vijayawada

Income Tax Officer, Ward-IV, Vijayawada

< GIST:

> HEAD NOTE:  

Counsel for Appellant: Sri Y.Ratnakar

Senior Standing Counsel for Respondent: Sri J.V.Prasad

? Cases referred
[1] (1968) 068 I.T.R. 0240 (S.C.)
[2] (1971) 079 I.T.R. 0594 (S.C.)
[3] (1983) 141 ITR 0674
[4] (1988) 171 ITR 0128
[5] (1973) 91 ITR 393 (Guj)
[6] (1987) 165 ITR 166 (SC)

JUDGMENT (per Hon'ble Sri Justice M.S.Ramachandra Rao):  

              This appeal is filed by the appellant/assessee under Section 260-A
of the Income Tax Act, 1961 challenging the order dated
08-02-2000 of the Income Tax Appellate Tribunal, "B" Bench, Hyderabad in
I.T.A.No.1529/Hyd/94 for the assessment year 
1989-90.
2.              The appellant was a partner in a firm by name M/s.Theatre Radha,
a registered firm at Vijayawada along with one Y.Kalyana Sundaram under a
partnership deed dated 06-07-1976 with retrospective effect from 26-06-1976.
The partnership was a partnership at will.  Sri Y.Kalyana Sundaram was the owner
of the site and the super-structure and had brought those properties as his
capital in the firm.  The appellant brought in liquid cash of Rs.3.00 lakhs.
Accordingly the appellant acquired 50% interest in the site and the super-
structure of the cinema theatre.  At that point of time the property was valued
at Rs.6.00 lakhs.  The business of the firm was carried on till 28-02-1979.
Thereafter, disputes arose between the partners of the firm.  The appellant sent
a notice dated
07-03-1979 dissolving the partnership firm.  As per Section 43 of the
Partnership Act, 1932, where the partnership is at will, the firm stands
dissolved by any partner giving notice in writing of his intention to dissolve
the firm.  Therefore, the partnership stood dissolved on
07-03-1979 which falls in the assessment year 1979-80.
3.              The other partner Y.Kalyana Sundaram filed a suit O.S.No.125 of
1979 in the Sub Court, Vijayawada for settlement of accounts which was decreed
with the following directions:
" i) that the first defendant be and is hereby directed to render accounts of
2nd defendant firm up to 28-02-1979 within one month from the date of this
decree;
ii) that in case, the first defendant fails to render accounts as per clause
No.1, Commissioner be appointed for settlement of accounts of D-2 firm;
iii) that the plaintiff be and is hereby directed to deposit into court the half
share of the first defendant in D-2 firm within the three months from the date
of this decree, and within one month on such deposit, the first defendant be and
is hereby directed to transfer his interest in D-2 firm to the plaintiff by
executing necessary sale deed and registering it in the name of the plaintiff at
the expenses of the plaintiff as per Cl.18 of the Partnership deed dated 06-07-
1976 executed by plaintiff and 1st defendant;
iv) In case, the first defendant fails to execute the sale deed in favour of the
plaintiff as per Clause No.iii, the plaintiff be at a liberty to get the sale
deed executed and registered through Court;
v) and that the defendants do pay a sum of Rs.21,357.75 ps. to the plaintiff
towards suit costs and do bear their own costs of Rs.7,497/- in this suit."
4.              Aggrieved thereby, the appellant filed A.S.No.2242 of 1983 in
the High Court of Andhra Pradesh.  On 18-07-1987, the said appeal was allowed in
part with the following directions:
" 1) That the total value of the property as on 08-03-1979 be and hereby is
fixed at Rs.16,09,000/- (Rupees sixteen lakhs and nine thousand only)
determining the value of the land at Rs.300/- per square yard instead of
Rs.200/- per square yard;
2) That the first defendant liability to account is not disputed.
3) That the clauses (iii) and (i) of the Decree passed by the Trial Court shall
be deleted and in place of clauses (iii) and (iv) of the decree, the following
clauses namely "(iii) the partnership property i.e. the cinema theatre, shall be
put to auction between the parties herein and (iv) If for any reason this
auction fails, proceeds distributed between the parties equally subject to
satisfaction of the debts outstanding if any shall be substituted as clauses
(iii) and (iv) respectively.
4) That, same as aforesaid, the decree of the trial Court shall stand confirmed
in other respects, and
5) That there be no order as to costs in this appeal."
5.              Being aggrieved by the judgment and decree in A.S.No.2242 of
1983, Y.Kalyana Sundaram filed Civil Appeal No.2742 of 1988.  In the appeal,
both parties filed a compromise memo and the Supreme Court disposed of the
appeal by its judgment dated 08-09-1988 setting aside the judgment of the High
Court and directing that the said judgment be replaced by an order in the
following terms:
" 1. The decree passed by the trial Court in favour of the appellant/plaintiff
is restored subject to the modification in clause (iii) of the decree as regards
the sum to be paid by the appellant/plaintiff to respondent/defendant No.1 in
regard to the valuation of one half share of the defendant No.1 in the defendant
No.2 firm as per clause 18 of the Partnership Deed as indicated hereafter and to
the said extent.  Upon the accounts as on 7th March 1979 being taken and the
assets and liabilities being finally settled the assets will vest in the
appellant/plaintiff and the liabilities as determined on taking accounts will be
the responsibility of the appellant/plaintiff;
2. The appellant/plaintiff shall pay to respondent (defendant) No.1 Rs.15.00
lakhs (Rupees fifteen lakhs only) in the manner specified hereinafter.
3. Out of the amount of Rs.15.00 lakhs, a sum of Rs.10.00 lakhs shall be
deposited in the trial Court on or before November 5, 1988 and the remaining
amount of Rs.5.00 lakhs shall be deposited in the trial Court as early as
possible but in any event before February 7, 1989.  The sum of Rs.5.00 lakhs
will carry interest at the rate of 10% per annum from November 7, 1988 till the
date of payment.
4. On deposit of this amount of Rs.15.00 lakhs (and interest if any) being made
in the manner indicated above, the suit of appellant/plaintiff shall stand
decreed and all the assets and the liabilities of respondent No.2, firm shall
vest in appellant (plaintiff) as and from 7 March 1979.  Subject to the
modification to the aforesaid extent the rest of the terms of the decree passed,
by the trial Court will thereupon stand confirmed.  The amounts deposited can be
withdrawn by the 1st respondent.
5. In case, the aforementioned sum of Rs.10.00 lakhs is not deposited latest by
November 5, 1988 or the remaining amount is not deposited latest by February 7,
1989, the appeal will stand dismissed, and the order passed by the High Court
will hold the field."
6.              The appellant received the sum of Rs.15.00 lakhs from Sri
Y.Kalyana Sundaram in November/December 1988.  According to the appellant this  
sum was paid towards his share in full and final settlement of the amount due to
him on the dissolution of the firm in lieu of his 50% share in the firm and the
assets of the partnership were taken over by Sri Y.Kalyana Sundaram.
7.              The appellant as an individual filed his return for the
assessment year 1989-90 on 08-04-1991 declaring a total income of Rs.50,760/-.
This income comprised of income from business at Rs.48,864/- and other source 
Rs.15,989/-.  Out of this, the appellant claimed deduction under Sections 80-C
and 80-L of Rs.14,094/-.  The return of the assessee was processed by the
respondent under Section 143 (1) (a), on 25-10-1991.
8.              Subsequently, the respondent felt that the appellant had sold
away his right and title in 50% share in the Theatre Radha to his partner
Y.Kalyana Sundaram in November 1988 for Rs.15.00 lakhs, that the appellant did
not admit any capital gain out of this transaction, that there is reason to
believe that income chargeable to tax has escaped assessment and issued a notice 
under Section 148 on 27-12-1993.  The appellant filed a letter on 13-01-1994
stating that the return already filed by him on 08-04-1991 admitting a total
income of Rs.50,760/- may be treated as a return filed in response to the above
notice.
9.              The respondent then passed an order dated 29-03-1994 holding
that under the compromise recorded in the Supreme Court mentioned above, there
was a sale of an asset by the appellant to Y.Kalyana Sundaram, that the
appellant's contention that it was only a case of distribution between one
partner and the other on the dissolution of the firm is not correct, that there
was a sale by the appellant to Y.Kalyana Sundaram for Rs.15.00 lakhs, that the
sale took effect on the date of payment of the 1st instalment i.e.
07-11-1988 to the appellant, that on payment of second and final instalment, the
transfer dated back and took effect from the date of payment of the 1st
instalment i.e. 07-11-1988.  He therefore, computed the net long term capital
gain as Rs.3,51,050/- on the site and short term capital gain as Rs.4,98,450/-
on the assets and determined that the total income of the appellant for the
assessment year 1989-90 as Rs.9,00,260/-. He also proposed to initiate penalty
proceedings under Section 271(1) (c) of the Income Tax Act 1961.
10.          Aggrieved thereby, the appellant filed an appeal to the
Commissioner of Income Tax (Appeals), Vijayawada.  The appeal was numbered as  
I.T.A.No.33/V/CIT(A)/94-95; and was dismissed on 05-08-1994.
11.          Challenging the appellate order, the appellant filed
I.T.A.No.1529/Hyd/94 before the Income Tax Appellate Tribunal, "B" Bench,
Hyderabad.
12.          Before the Tribunal, the appellant filed written submissions on 04-
02-2000 specifically contending  that any arrangement between the partners
relating to the distribution of the assets consequent on dissolution of the
partnership is not an income and not liable to tax as capital gains.  He cited
C.I.T Vs. Dewas Cine Corporation[1] and C.I.T. Vs. Bankey Lal Vaidya[2] in
support of his plea.    He contended that consequent to the dissolution of the
firm, there will be in specie distribution of assets between the partners and
this could be done in any of the following ways:
a)      one partner takes assets and pays the other
         partner or
b)      both of them distribute the assets in their profit
         ratios or
c)      sell the assets and distribute the proceeds.
In all these transactions any surplus realized by the partner in excess of this
capital balance or book balance cannot be subjected to tax as capital gains.  He
contended that the compromise in the Supreme Court and the consequent judgment  
passed by the Supreme Court is one of the ways of settlement of accounts
consequent to the dissolution of the firm and there was no transfer at all
involved in the transaction.  He further contended that even if any transfer had
occurred, it is in the assessment year 1979-80 and not in the assessment year
1989-90.  He  contended that a sale deed was to be executed by the appellant in
favour of the other partner on the dissolution and in fact, till that day, no
such sale deed is executed and registered in favour of the other partner.
Lastly he also contended that up to the assessment year 1987-1988, Section 47
(ii) of the Income Tax Act, 1961 excluded these transactions.  From assessment
year 1988-89, in the case of dissolution of a firm, only the firm is taxable on
capital gains on dissolution under Section 45 (4) of the Income Tax Act, 1961
and not the partner.
13.          The I.T.A.T. did not consider the above contentions raised by the
appellant before it and dismissed the appeal by order dated 08-02-2000.
Aggrieved thereby the appellant has filed the above appeal under Section 260-A
of the Income Tax Act, 1961.
14.          Heard Sri Y.Ratnakar, learned counsel for the appellant and Sri
J.V.Prasad, Senior Standing Counsel for the respondent.
15.          The counsel for the appellant reiterated the contentions raised by
the appellant before the I.T.A.T and cited the following decisions:  C.I.T Vs.
Dewas Cine Corporation (supra 1) and C.I.T. Vs. Bankey Lal Vaidya (supra 2),
C.I.T. Vs. Raghu Kumar[3], and C.I.T. Vs. Patel[4].
16.          The Standing Counsel for the respondent contended that the
appellant had not raised these contentions before the I.T.A.T. but when the
written submissions dated 04-02-2000 of the appellant before the I.T.A.T. were
pointed out by this Court, he accepted that these points were indeed raised
before the I.T.A.T. by the appellant.
17.          A reading of the impugned order shows that the I.T.A.T. did not
refer to the contentions raised by the appellant in his written submissions
dated 04-02-2000 filed before the I.T.A.T.  It also did not refer to the case
law cited by the appellant in the written submissions.  It merely adopted the
reasoning of the C.I.T. (Appeals) and opined that the half share enjoyed by the
appellant in the properties of the cinema theatre stood transferred to Y.Kalyana
Sundaram only on the receipt of consideration as stipulated in the compromise
decree of the Supreme Court and that for the purpose of income tax, capital
gains are assessable in the assessment year 1989-90.
18.          In C.I.T. Vs. Dewas Cine Corporation (supra 1), the Supreme Court
of India held as follows:
"On dissolution of the partnership, each theatre must be deemed to be returned
to the original owner, in satisfaction partially or wholly of his claim to a
share in the residue of the assets after discharging the debts and other
obligations.  But thereby the theatres were not in law sold by the partnership
to the individual partners in consideration of their respective shares in the
residue.  The expression "sale" and "sold" are not defined in the Income-tax Act
: those expressions are used in section 10 (2) (vii) in their ordinary meaning .
"Sale", according to its ordinary meaning, is a transfer of property for a
price, and adjustment of the rights of the partners in a dissolved firm is not a
transfer, nor it is for price."
It further held that a partner, may, in an action for dissolution insist that
the assets of the partnership be realized by sale of its assets, but where
satisfaction of the claim of the partner to his share in the value of the
residue determined on the footing of an actual or notional sale of property is
allotted, the property so allotted to him cannot be deemed in law to be sold to
him.
19.          In C.I.T. Vs. Bankey Lal Vaidya (supra 2), the Supreme Court held
that a partner in a firm (carrying on business of manufacturing and selling
pharmaceutical products and literature relating thereto) whose assets (which
included good will, machinery, furniture, medicines, library and copy right)
were valued at Rs.2,50,000/-,  was paid towards his half share, on the
dissolution of the firm, a sum of Rs.1,25,000/- in lieu of his share, the
arrangement between the partners of the firm amounted to a distribution of the
assets of the firm on dissolution.  It held that there was no sale or exchange
of the respondent's share in the capital assets to the other partner. The
Supreme Court of India further held as follows:
"In the course of dissolution the assets of a firm may be valued and the assets
divided between the partners according to their respective shares by allotting
the individual assets or paying the money value equivalent thereof.  This is a
recognized method of making up the accounts of a dissolved firm.  In that case
the receipt of money by a partner is nothing but a receipt of his share in the
distributed assets of the firm.  The respondent received the money value of his
share in the assets of the firm : he did not agree to sell, exchange or transfer
his share in the assets of the firm.  Payment of the amount agreed to be paid to
the respondent under the arrangement of his share was therefore not in
consequence of any sale, exchange or transfer of assets."
The Supreme Court upheld the contention of the assessee that no part of the
amount of Rs.1,25,000/- received by the assessee represented capital gains and
relied on C.I.T. Vs. Dewas Cine Corporation (supra 1) referred to above.  It
held that adjustment of the rights of the partners in a dissolved firm by
allotment of its assets is not a transfer for a price.  The facts of the instant
case are identical with the facts of the case in C.I.T. v. Bankey Lal Vaidya ( 2
supra).
20.          In C.I.T. Vs. Raghu Kumar (supra 3), a Division Bench of the Andhra
Pradesh High Court followed the judgment of the Gujarat High Court in C.I.T. Vs.
Mohanbhai Pamabhai[5] and held that no transfer is involved when a retiring
partner receives at the time of retirement from the firm, his share in the
partnership assets either in cash or any other asset.  It further held that for
the purpose of Section 45 of the I.T. Act, no distinction can be drawn between
an amount received by the partner on the dissolution of the firm and that
received on his retirement, since both of them stand on the same footing.
21.          In C.I.T. Vs. Patel (supra 4), a Division Bench of the AP High
Court noticed that the judgment in C.I.T. Vs. Mohanbhai Pamabhai (supra 5) was
approved by the Supreme Court in Additional C.I.T. Vs. Mohanbhai Pamabhai[6],
and following the judgment in C.I.T. Vs. L.Raghukumar (supra 3) held that when a
partner retires from a partnership firm taking his share of partnership
interest, no element of transfer of interest in the partnership asset by the
retiring partner to the continuing partner was involved.
22.          In the light of the above decisions, which are binding on us, we
hold that the I.T.A.T. was not correct in confirming the orders passed by the
C.I.T. (Appeals) and the respondent.  When the appellant was paid Rs.15.00 lakhs
by Y.Kalyana Sundaram in full and final settlement towards his 50% share on the
dissolution of the firm, there was no "transfer" as understood in law and
consequently there cannot be tax on alleged capital gain.  The appellant was
correct in law in contending that the amount he received from Y.Kalyana Sundaram
is towards the full and final settlement of his share and such adjustment of his
right is not a "transfer" in the eye of law.  It is a recognized method of
making up the accounts of the dissolved firm and  the receipt of money by him is
nothing but a receipt of his share in the distributed asset of the firm.  The
appellant received the money value of his share in the assets of the firm.  He
did not agree to sell, exchange or transfer his share in the assets of the firm.
Payment of the amount agreed to be paid to the appellant under the compromise
was not in consequence of any share, exchange or transfer of assets to Y.Kalyana
Sundaram.   Moreover , as rightly contended by the assessee, up to the
assessment year 1987-1988, Section 47 (ii) of the Income Tax Act, 1961 excluded
these transactions.  From assessment year 1988-89, in the case of dissolution of
a firm, only the firm is taxable on capital gains on dissolution under Section
45 (4) of the Income Tax Act, 1961 and not the partner. S.45(4) states as
follows:
"S.45(4) The profits or gains arising from the transfer of a capital asset by
way of distribution of capital assets on the dissolution of a firm or other
association of persons or body of individuals ( not being a company or a co-
operative society) or otherwise, shall be chargeable to tax as the income of the
firm, association or body, of the previous year in which the said transfer takes
place and, for the purpose of section 48, the fair market value of the asset on
the date of such transfer shall be deemed to be the full value of the
consideration received or accruing as a result of the transfer."
Thus it is clear that the legislature, even though it was aware of the above
decisions, did not choose to amend the law by making the partner liable when it
amended the I.T Act,1961 by introducing clause (4) to s.45 by the Finance
Act,1987 w.e.f 1.4.1988 and made only the firm liable. Therefore the contention
of the assessee has to be accepted and that of the Revenue is liable to be
rejected.
23. In this view of the matter, this appeal is allowed and the order of the
I.T.A.T., confirming the orders of the C.I.T (Appeals) and the respondent is set
aside.  No costs.

__________________________  
JUSTICE GODA RAGHURAM      


_________________________________    
JUSTICE M.S.RAMACHANDRA RAO        
Date:  03 -08-2012

the daughter of the respondent i.e the first wife of the husband of the complainant died, thereby the first marriage of the husband of the complainant does not exist now. Thus, the complainant is altogether a different person, who got no relationship with the respondent by virtue of any marriage otherwise or by consanguinity or by being a member of a joint family within the meaning of section 2(f). What is envisaged under the proviso in Section 2(q), which section defines what is meant by 'respondent' that an aggrieved wife or female living in a relationship in the nature of a marriage may file a complaint against a relative of the husband or male person is well within the ambit of the definition of domestic relationship only. In other words, when domestic relationship as defined in Section 2(q) is one of the conditions to file an application under the Act, a relative of the husband or male person must be one who comes within the ambit of that definition which excludes a relative like the respondent in this case.

THE HON'BLE SRI JUSTICE G.KRISHNA MOHAN REDDY          

CRIMINAL PETITION No.4140 of 2010  

2-8-2012

Nagamuthula Kondaiah

State of A.P., rep. by P.P. & another.

Counsel for the Petitioner: Sri P.SRIDHAR REDDY

Counsel for the Respondent No.1: The Public Prosecutor

< Gist:

> Head Note:

 ? Cases referred:

ORDER:
1.      This petition is filed under Section 482 Cr.P.C. seeking to quash
proceedings in D.V.C.No.1 of 2010 (D.V.C.) on the file of the Court of II
Additional Judicial Magistrate of First Class, Kothagudem.
 2.     The petitioner is the respondent and the second respondent is the
complainant in the DVC case.  The respondent filed the complaint under Sections
12, 18, 19, 20, 21 and 22 of the Protection of Women from Domestic Violence Act,
2005 (for short 'the Act') against the petitioner herein with a plea to restrain
him from dispossessing her from shared household and also to pay compensation.
3.      For the sake of convenience, I refer the parties as arrayed in the DVC.
It is pleaded and alleged in the complaint as follows.
4.      (a)     The complainant is the legally wedded wife of Chembeti Chinna
Koteshwar Rao, whereas their marriage took place as per Hindu Rites and Customs
on 15.11.2008.  In fact, her husband was first married to one Uma Maheshwari,
daughter of the respondent on 11.8.2000 and a girl by name Keerthi who is aged 7
years was born to them.   On 7.3.2008 Uma Maheshwari died.  The respondent used
to reside in their house as family member.  In fact he was looking after the
affairs of the house.  Her husband reposed implicit confidence on the respondent
in all respects.  Factually, the husband of the petitioner married her as she
was a relative of him and also for taking necessary care of the minor.
According to the complainant, further she and her husband have been taking care
of the minor.  The respondent got no interest in the welfare of the minor.  On
the other hand, he made several efforts to grab the amounts kept in the name of
the minor girl.
(b)     She alleges that apart from that, the respondent has also been making
efforts to subject her to domestic violence one way or the other for the purpose
of ruining the matrimonial house.  The petitioner is always under threat and
danger in the hands of the respondent.   While such circumstances existed, on
30.6.2009 the respondent along with some anti-social elements entered the house
and threatened her with dire consequences and expressed his intention to kidnap
the minor.  Apart from that on 1.7.2009, the respondent attempted to kidnap the
minor and in that context, criminally intimidated her again threatening her with
dire consequences.  Later, she informed about the incident to her husband,
following which they gave a report in Palvancha Police Station, which was
registered in Cr.No.170 of 2009  under Sections 363, 511, 506 read with Section
34 IPC and then the respondent was arrested by the police. She claims that
because of the conduct of the respondent, her health is endangered.   It is also
stated that the respondent left the sharing roof of the petitioner's matrimonial
house, but he is continuously making an onslaught to wreck vengeance against the
family.
5.      It is to be examined whether there are grounds to quash the proceedings in
the DVC as prayed.
6.      Here Sections 2(a), 2(f), 2(g), 2(q), 2(s) and 3 coupled with Sections 18
to 22 of the Act' are important.
(a)     By virtue of Section 2(a) of the Act, "aggrieved person" means any woman
who is, or has been in a domestic relationship with the respondent and who
alleges to have been subjected to any act to domestic violence by the
respondent. So existence of domestic relationship and living in shared house as
defined in Sections 2(f) and 2(s) of the Act are the conditions precedent for
the aggrieved party to initiate proceedings under the Act.    
(b)     By virtue of Section 2(q) "Respondent" means any adult male person who is,
or has been, in a domestic relationship with the aggrieved person and against
whom the aggrieved person has sought any relief under this Act: Provided that an
aggrieved wife or female living in a relationship in the nature of a marriage
may also file a complaint against a relative of the husband or the male partner.
The meaning of the proviso can be better understood while analyzing what is
meant by domestic relationship.
(c)     By virtue of Section 2(f) of the Act, "Domestic relationship" means a
relationship between two persons who live or have, at any point of time, lived
together in a shred household, when they are related by consanguinity, marriage,
or through a relationship in the nature of marriage, adoption or are family
members living together as a joint family.  Thereby to constitute domestic
relationship in between two parties, they should have lived in a shared house
and they are related by consanguinity marriage or through a relationship in the
nature of marriage, adoption or as members of a joint family.  The person
aggrieved, covered by the proviso under Section 2(q) falls within the ambit of
the definition of domestic relationship being a relative of the respondent by
marriage.
(d)     By virtue of Section 2(g)  "Domestic violence" has the same meaning as
assigned to it in Section 3.  Section 3 of the Act contemplates "Definition of
domestic violence".  For the purpose of this Act, any act, omission or
commission or conduct of the respondent shall  constitute domestic violence in
case if-
        (a) harms or injures or endangers the health, safety, life, limb or well-
being, whether mental or physical, of the aggrieved person or tends to do so and
includes causing physical abuse, sexual abuse, verbal and emotional abuse and
economic abuse; or

(b) harasses, harms, injures or endangers the aggrieved person with a view to
coerce her or any other person related to her to meet any unlawful demand for
any dowry or other property or valuable security; or

(c) has the effect of threatening the aggrieved person or any person related to
her by any conduct mentioned in clause (a) or clause (b);
or
(d) otherwise injures or causes harm, whether physical or mental to the
aggrieved person."

(e)     By virtue of Section 2(s) of the Act "Shared household" means a household
where the person aggrieved lives or at any stage has lived in a domestic
relationship either singly or along with the respondent and includes such a
household whether owned or tenanted either jointly by the aggrieved person and
the respondent, or owned or tenanted by either of them in respect of which
either the aggrieved person or the respondent or both jointly or singly have any
right, title, interest or equity and includes such a household which may belong
to the joint family of which the respondent is a member irrespective of whether
the respondent or the aggrieved person has any right, title or interest in the
shared household.  Significantly, it is emphasized that to constitute a shared
household, it must be a household where the aggrieved person lives or lived in a
domestic relationship subject to the other formalities incorporated therein.
7.      Thereby the main requirements here are as to whether the complainant and
the respondent lived together in a shared house and whether the complainant is
related to the respondent by consanguinity, marriage or through a relationship
in the nature of marriage, adoption or being a member of a joint family who
lived together as envisaged in Section 2(f) with regards to domestic violence.
Pertinently, the daughter of the respondent i.e the first wife of the husband of
the complainant died, thereby the first marriage of the husband of the
complainant does not exist now.  Thus, the complainant is altogether a different
person, who got no relationship with the respondent by virtue of any marriage
otherwise or by consanguinity or by being a member of a joint family within the
meaning of section 2(f).  What is envisaged under the proviso in Section 2(q),
which section defines what is meant by 'respondent' that an aggrieved wife or
female living in a relationship in the nature of a marriage may  file a
complaint against a relative of the husband or male person is well within the
ambit of the definition of domestic relationship only.  In other words, when
domestic relationship as defined in Section 2(q) is one of the conditions to
file an application under the Act, a relative of the husband or male person must
be one who comes within the ambit of that definition which excludes a relative
like the respondent in this case.
8.      With regards to the question of living in a shared house as defined in
Section 2(s), the respondent must have a right to live in the house or allowed
to live in the house under an obligation having domestic relationship as
contemplated in Section 2(f) with the other inmates of the house which is one of
the conditions to initiate the proceedings under the Act.  Importantly in the
definition of shared house also it is emphasized that the person aggrieved must
have lived in a shared house having got domestic relationship which in fact does
not include a person like the respondent herein subject to the formalities
mentioned.  That apart, neither the complainant nor her husband got any
obligation to allow him to reside in the house.  It is not a case of husband
keeping the respondent in the house aiding the respondent to harass the
complainant, rather it is admittedly a case of both the complainant and her
husband living together harmoniously and both of them facing the alleged conduct
of the respondent.  If he is residing in the house unwantedly, they can take
measures to send him out.  Thus, as the respondent cannot be brought within the
purview of the provisions enumerated that debars the complainant to file the
complaint.
9.      In addition to the discussion made above, the complaint is based only  on
surmises and conjectures.  There are no specific allegations, in other words,
there are only bald allegations against the respondent.  It clearly appear that
false allegations were made against the respondent for some purpose.  It is
something unbelievable in view of the circumstances of the case that the
respondent preferred to stay in the house of the complainant and her husband
after the death of his daughter, who was the first wife of the husband of the
complainant.  It is claimed by the respondent that the husband of the
complainant has filed D.W.O.P.No.777 of 2009 on the file of the Court of
Principal District Judge, Khammam for appointing him as the Guardian of the
minor and he has also filed O.S.No.169 of 2009 on the file of the Court of
Principal Senior Civil Judge, Kothagudem for damages against him on the ground
that he made derogatory allegations against him in another legal proceedings and
he also gave report to the Station House Officer, Palvancha Police Station and
got him arrested, which establish that the complainant and her husband are bent
upon to harass him to force him to accept their terms.
10.     Hence good grounds are made out to quash the proceedings in the DVC.  No  
body should be tried or enquired into unnecessarily in any proceeding.  If it is
done, it is nothing but abusing the process of law and harassing him or her.
11.     In the result, the criminal petition is allowed and the impugned
proceedings in the D.V.C.No.1 of 2010 are quashed.


IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH            
AT HYDERABAD    


THE HON'BLE SRI JUSTICE G.KRISHNA MOHAN REDDY          

Criminal Petition No.4140 of 2010


Date: 2.8.2012

Between:

Nagamuthula Kondaiah
.. Petitioner/Accused
And


The State of A.P., rep. by its
Public Prosecutor and another.
.. Respondents

THE HON'BLE SRI JUSTICE G.KRISHNA MOHAN REDDY          
Criminal Petition No.5558 of 2009
ORDER:
1.      This petition is filed under Section 482 Cr.P.C. seeking to quash
proceedings in D.V.C.No.1 of 2010 (D.V.C.) on the file of the Court of
Additional Judicial Magistrate of First Class, Armoor, Nizamabad district.
 2.     The petitioners are the respondents 1 to 3 and the second respondent
herein is the complainant in the DVC case.  For the sake of convenience, I refer
the parties as arrayed in the DVC.
3.      The complainant filed the complaint under Sections 12, 18, 19, 20, 21 and
22 of the Protection of Women from Domestic Violence Act, 2005 (for short 'the
Act') against the petitioners herein to pass protection orders, residence order,
maintenance order, custody order and to pay monetary relief compensation order
and any other reasonable order respectively.
4.      The claim of the complainant is as follows.
        Her marriage with the first respondent was performed on 14.7.2008 at
Tirupati.  Before the marriage, the first respondent was engaged to another girl
belonging to Ramadugu, by reason of which, he expressed his unwillingness to
marry her and therefore the engagement was cancelled subject to paying damages.
For two days after the marriage, the first respondent was cordial with her.
Later, the parents of the first respondent i.e. respondents 2 and 3 started
harassing her expressing that she was not suited to the first respondent and if
another girl was married to the first respondent, they would have got a dowry of
Rs.20.00 lakhs with the help of which, the husband of their daughter i.e. the
fourth respondent could have been sent to foreign countries for getting better
jobs.  Further it is alleged that the respondents 1 to 4 harassed her asking her
to leave the house voluntarily and also suggested her to marry another male
person.  Further, she was not allowed to take coffee, breakfast and launch by
the respondents and she was also not allowed to speak to the first respondent
and lead marital life with him.  It is further alleged that whenever she was
wearing good clothes, they used to irritate her saying where you were going.  It
is also alleged that the fourth respondent pushed the complainant out of the
house while asking her to leave the house expressing that they would conduct
another marriage to the first respondent after getting rid of her.   It is
further alleged unable to bear the torture of the respondents, the complainant
left the house and has been staying with her parents house.
5.      Learned counsel for the respondents would contend that the marriage
between first respondent and the complainant is in dispute, by reason of which
alone, the domestic violence case is not maintainable.  Further the complainant
and the first respondent never lived together and there was no consummation of
marriage.
6.      It is to be examined whether there are grounds to quash the proceedings in
the DVC as prayed.
7.      Here Sections 2(a), 2(f), 2(g), 2(q), 2(s) and 3 coupled with Sections 18
to 22 of the Protection of Women from Domestic Violence Act, 2005 (for short
'the Act')  are to be considered.
(a)     By virtue of Section 2(a) of the Act, "aggrieved person" means any woman
who is, or has been in a domestic relationship with the respondent and who
alleges to have been subjected to any act to domestic violence by the
respondent. Thereby the main criteria to file the case is that there should be
domestic relationship between the person aggrieved and the respondent.  It
necessitates to understand what is domestic relationship in this context.

(b)     By virtue of Section 2(q) "Respondent" means any adult male person who is,
or has been, in a domestic relationship with the aggrieved person and against
whom the aggrieved person has sought any relief under this Act: Provided that an
aggrieved wife or female living in a relationship in the nature of a marriage
may also file a complaint against a relative of the husband or the male partner;
(c)     By virtue of Section 2(f) of the Act, "Domestic relationship" means a
relationship between two persons who live or have, at any point of time, lived
together in a shred household, when they are related by consanguinity, marriage,
or through a relationship in the nature of marriage, adoption or are family
members living together as a joint family.  So, to satisfy this definition both
should have lived or live in a shared house and they are related by
consanguinity marriage etc.
(d)     By virtue of Section 2(s) of the Act "Shared household" means a household
where the person aggrieved lives or at any stage has lived in a domestic
relationship either singly or along with the respondent and includes such a
household whether owned or tenanted either jointly by the aggrieved person and
the respondent, or owned or tenanted by either of them in respect of which
either the aggrieved person or the respondent or both jointly or singly have any
right, title, interest or equity and includes such a household which may belong
to the joint family of which the respondent is a member irrespective of whether
the respondent or the aggrieved person has any right, title or interest in the
shared household.
(e)     By virtue of Section 2(g)  "Domestic violence" has the same meaning as
assigned to it in Section 3. This is the criteria in fact to grant the reliefs
under the Sections 18 to 22.
(f)     Section 3 of the Act reads - "Definition of domestic violence".  For the
purpose of this Act, any act, omission or commission or conduct of the
respondent shall  constitute domestic violence in case if-
        (a) harms or injures or endangers the health, safety, life, limb or well-
being, whether mental or physical, of the aggrieved person or tends to do so and
includes causing physical abuse, sexual abuse, verbal and emotional abuse and
economic abuse; or

(b) harasses, harms, injures or endangers the aggrieved person with a view to
coerce her or any other person related to her to meet any unlawful demand for
any dowry or other property or valuable security; or

(c) has the effect of threatening the aggrieved person or any person related to
her by any conduct mentioned in clause (a) or clause (b);
or
(d) otherwise injures or causes harm, whether physical or mental to the
aggrieved person."

8.      From the pleas taken, it appears that after the marriage, the first
respondent and the complainant lived together.  There is no basis to say that
the respondents 2 and 3 and the complainant lived together in a shared house as
defined though no doubt the other ingredients are satisfied.  On this ground,
the complaint is not tenable and hence ultimately the proceedings are to be
quashed so far as the respondents 2 and 3 are concerned.
        In the result, the petition is dismissed so far as the first respondent is
concerned and is allowed so far as the other respondents are concerned.




______________________  
G. Krishna Mohan Reddy, J
Date: 2.8.2012
Note:
L.R. copy be marked.
        B/o
DA




THE HON'BLE SRI JUSTICE G.KRISHNA MOHAN REDDY          










Criminal Petition No.4140 of 2010




2.8.2012

















______________________  
G. Krishna Mohan Reddy, J
Date: 9.8.2012

bare injunction without a prayer for declaration of title Therefore, when the plaintiffs filed the suit based on their title and possession and prayed for injunction and during the pendency of the suit the plaintiffs title is questioned by the defendants for the first time then the Court can go into the question of title also, when necessary pleadings are there and there is no need for the plaintiffs to pray for declaration in that suit. Therefore, as held by the Hon'ble Supreme Court the Judgement referred to above, a suit for bare injunction is maintainable when parties have come to Court with a specific case of ownership and let in evidence about the title and in that case the Courts below can incidentally give a finding regarding title and the suit cannot be dismissed on the ground that the suit is not maintainable for not praying the relief of declaration. Hence, the substantial question of law is answered in favour of the appellants and the suit for bare injunction is maintainable and as the appellants proved that there are the owners of the property and they are in possession and enjoyment of the suit property, they are entitled to injunction as prayed for.

IN THE HIGH COURT OF JUDICATURE AT MADRAS

Dated 21.01.2011

Coram:

The Honourable Mr. Justice R.S.RAMANATHAN

S.A. Nos. 1316 and 1317 of 1997
and
C.M.P.Nos.12922, 12923 of 1997 and 1861 of 2010
 
S.A.NO.1316 of 1997:
               
1. P. Lakshmanan
2. L. Thangaraj
                                             ...          Appellants/                     Plaintiffs in both
                                                         Second Appeals
     ..vs..
                 

1. P. Arumugam (Died)
2. Sakunthala
3. P.Marimuthu (Died)
4. Periyannan (Died)
(1st Respondent P.Arumugam(already died),
  3rd Respondent P.Marimuthu (already died)
  recorded as LRs., of the deceased 4th Respondent
  vide order of Court dated 11.11.2010 made in
  Memo dated 9.11.2010.)

5. A.Nagammal
6. Parvathi
7. Rajendran
8. Krishnakumar
9. Vanithamani
10.Maragatham
11.Muthu
12.Baggiam
13.Kokila
14.Mani
                                              ...         Respondents 1 to 14
                                                           in S.A.No.1316/1997
                                                           Defendants 1 to 4
                                                           in O.S.No.2514/1993
                                                           
S.A.NO.1317 of 1997:

1. P. Lakshmanan
2. L. Thangaraj
                                             ...          Appellants/                     Plaintiffs in both
                                                          Second Appeals
                                          ..vs..            

1. Periyannan (Died)
2. Nagammal
3. Parvathi
4. Rajendran
5. Krishnakumar
6. Vanithamani
7. Maragatham
8. Muthu
9. Baggiam
10.Kokila
11.Mani

(Respondents 2 to 11 brought on record
  as LRs., of the deceased sole respondent
  vide Order of Court dated 16.12.2010
   made in C.M.P.No.1861 of 2010 in
   S.A.No.1317 of 1997)
                                              ...         Respondents 1 to 11
                                                           in S.A.No.1317/1997
                                                           4thDefendant
                                                           in O.S.No.2514/1993
                                                                                                                 
                                                                                                 
Prayer in S.A.No.1316 of 1997:
                                     
Second Appeal filed under Section 100 of Civil  Procedure Code against the Common Judgement and Decree dated 7.2.1997 made in A.S.No.2 of 1996 on the file of the I Additional District Judge Coimbatore , by reversing the Judgement and Decree made in O.S.No.2514 of 1993 dated 10.11.1995 on the file of the First Additinal District Munsif Court, Coimbatore.
Prayer in S.A.No.1317 of 1997:                                      
Second Appeal filed under Section 100 of Civil  Procedure Code against the Common Judgement and Decree dated 7.2.1997 made in A.S.No.5 of 1996 on the file of the I Additional District Judge Coimbatore , by reversing the Judgement and Decree made in O.S.No.2514 of 1993 dated 10.11.1995 on the file of the First Additinal District Munsif Court, Coimbatore.
       For Appellants in both the
       Second Appeals               ...  Mr. B. Soundrapandian

       For 5th Respondent in
       S.A.No.1316 of 1997 and
       2nd Respondent in
       S.A.No.1317 of 1997       ...   Mr.  V. Nicholas
 
       For Respondents 6 to 10
       and Respondents 12 to 14 in
       S.A.No.1316 of 1997 and
       Respondents 3 to 7 and 9 to 11 in
       S.A.No.1317 of 1997
                                           ...   Mr. K.Kalyansundaram                                                    
           
C O M M O N  J U D G E M E N T
The plaintiffs in O.S.No.2514 of 1993 on the file of the I Additional District Munsif Court, Coimbatore are the appellants.
2.  The plaintiffs filed the suit for injunction stating that the suit property and other properties belonged to the 4th defendant ancestrally and the total extent of the properties owned by the family was an extent of 60 x 90 feet and thereafter there was a partition in the family and in that partition the 1st plaintiff was allotted an extent of 60 x 30 feet of property and the 1st plaintiff constructed a house in that property and is enjoying the same.  As the defendants attempted to interfere with the plaintiffs right to the suit property, the suit was filed for injunction.

3.  The defendants 1 to 3 filed a statement denying the oral partition and also the enjoyment of the property by the 1st plaintiff.  The 4th defendant also filed the separate statement stating that the property is his self acquired property and the 1st plaintiff can not claim any right in the property and the 4th defendant sold an extent of 30 x 30 feet to the 3rd defendant under a registered sale deed dated 30.11.1993 and the remaining properties are in the possession of the 4th defendant.  Therefore, the plaintiffs were never in possession of the property and they are not entitled to injunction.

4.  The trial Court on the basis of the documentary evidence held that the property was the ancestral property belonging to the plaintiffs and defendants 1, 2 and 4 and the suit property was allotted to the share of the 1st plaintiff and he has put up construction and he is in possession of the property and therefore he is entitled to injunction.  Aggrieved by the same, the defendants 1 and 3 filed an appeal in A.S.No.2 of 1996 and the 4th defendant filed an appeal in A.S.No.5 of 1996 on the file of the First Additional District Court, Coimbatore and the learned First Additional District Judge confirmed the finding of the trial Court and held that the 1st plaintiff is the owner of the suit property and he is possession and enjoyment of the same.  Nevertheless, the learned First Additional District Judge, Coimbatore allowed the appeal on the ground that the suit filed for injunction without a prayer for declaration is not maintainable and the appellants/ plaintiffs ought to have prayed for declaration, when the title was disputed and having not prayed for declaration,  the suit for bare injunction is not maintainable.  Aggrieved by the same, these two Second Appeals are filed.

5.  Mr. B.Soundarapandian, the learned counsel for the appellants submitted that both the Courts below have concurrently held that the suit property belongs to the 1st appellant and therefore the concurrent finding of fact cannot be interfered with in the Second Appeals and the lower appellate Court allowed the appeal and dismissed the suit only on the ground that the suit for bare injunction is not maintainable in the absence of any declaration of title and the reasoning of the lower appellate Court that a suit for bare injunction without a prayer for declaration is not maintainable is against the Judgements rendered by this Court reported in 2007 (1) MLJ 827 (A.P.Kuppusamy  v. P.Kumarapalayam Municipality, represented by its Commissioner, Tiruchengode Taluk) and 1997 (1) CTC 407 (Yadhavan and another  v. Md. Dayanudin and two others) and even in a suit for bare injunction the Court can give incidental finding about the title and the suit cannot be thrown out on the ground that the relief of declaration was not sought for.

6.  On the other hand, Mr. V.Nicholas the learned counsel for the 2nd respondent in S.A.No.1317 of 1997 and 5th respondent in S.A.No.1316 of 1997 submitted that when title to the suit property is in dispute it is the duty of the plaintiffs to pray for declaration and a suit for bare injunction is not maintainable.   He relied upon the Judgement reported in 2011 (1) Law Weekly 235 (T. Matheswari  v. T.G.Tulasi) in support of his contention that a suit for injunction is not maintainable when the title is in dispute.

7.  Mr. K. Kalyanasundaram, the learned counsel for the Respondents 6 to 10  and 12 to 14 in S.A.No.1316 of 1997 and Respondents 3 to 7 and 9 to 11 in S.A.No.1317 of 1997 submitted that the lower appellate Court has erroneously held that the appellants are the owners of the suit property and they are in possession of the suit property and the appellants failed to prove the oral partition alleged by them and in the absence of any proof of oral partition the appellants cannot claim title to the suit property and without prayer for declaration the suit for bare injunction is not maintainable and he also relied upon the Judgement of the Hon'ble Supreme Court reported in 2008 (4) SCC 594 ( Anathula Sudhakar  v. P.Buchi Reddy (Dead) by LRs., and others).

8.  According to me, the following substantial question of law arises for consideration in these Second Appeals:
Whether the suit for bare injunction without a relief of declaration is maintainable ?

9.  In these appeals there is no dispute regarding the relationship between the parties.  The 4th defendant is the father and the 1st plaintiff and defendants 1 and 2 are his sons.  The 2nd plaintiff is the son of the 1st plaintiff.  The 3rd defendant is the daughter's daughter of the 4th defendant.  The case of the plaintiffs was that by selling the ancestral property the suit property and larger extent was purchased by the 4th defendant and thereafter there was a partition and in that partition the 1st plaintiff was allotted an extent of 30 x 60 feet of property and he had put up construction in that property.  The contention of the defendants/ respondents was that the property is the self acquired property of the 4th defendant and there was no oral partition as alleged by the plaintiffs and the 4th defendant is in possession and enjoyment of the property and sold an extent 30 x 30 feet in favour of the 3rd defendant and another extent was sold by the 4th defendant in favour of the wife of the 1st defendant and therefore the plaintiffs have no title over the same.

10.  The trial Court on the basis of Exs. A1 and A2 held that by selling the property belonging to the family under Ex.A2 the suit property and the larger extent was purchased under Ex.A1 and therefore held that the suit property and the larger extent was the ancestral property belonging to the plaintiffs and defendants 1,2 and 4.  Further, Exs.A3 and A4 are the house tax receipts and Exs. A6 and A8 are the water tax receipts in respect of the suit property and they stand in the name of the 1st plaintiff and also on the basis of the evidence of P.Ws.2 to 4 the Courts below held that there was a oral partition and in that oral partition the suit property was allotted to the share of the 1st plaintiff and he had put up construction and therefore he is the owner of the property and he is in possession and enjoyment of the same.  The learned first appellate Judge also concurred with the findings of the trial Court after appreciating the oral and documentary evidence and held that the 1st plaintiff the 1st appellant herein is the absolute owner of the suit property and he is in possession and enjoyment of the same.  Therefore, both the Courts below have concurrently held that after independently analyzing the evidence available on record that the 1st appellant is the owner of the suit property and he is in possession and enjoyment of the same.  I  therefore hold that the concurrent finding of fact cannot be interfered with and both the Courts below  have rightly come to the conclusion that the 1st plaintiff/ 1st appellant is the owner of the property and he is in possession and enjoyment of the same.

11.  The next question to be decided is:
       Whether the suit for bare injunction is maintainable ?

12.  It is submitted by the learned counsel for the appellants that when the 1st plaintiff comes to the Court with a specific case that he is the owner of the suit property and he is in enjoyment of the same and his possession is sought to be disturbed by the defendants, it is enough to file the suit for injunction.   Merely because the title is disputed in the written statement, it is not necessary to pray for declaration. In the Judgement reported in 1997 (1) CTC 407 (Yadhavan and another  v. Md. Dayanudin and two others),  this Court has held that a suit for bare injunction is maintainable and question of title can be gone into incidentally for deciding relief of injunction claimed in the suit.  Similarly, in the Judgement reported in  2007 (1) MLJ 827 (A.P.Kuppusamy  v. P.Kumarapalayam Municipality, represented by its Commissioner, Tiruchengode Taluk), this Court has held that under Section 38 of Specific Relief Act,1963, the relief of injunction can be granted even if no declaratory relief is expressly prayed for and suit for bare injunction is maintainable.  The Hon'ble Supreme Court in the Judgement reported in 2008 (4) SCC 594 ( Anathula Sudhakar  v. P.Buchi Reddy (Dead) by LRs., and others) has laid down the law in regard to suits for prohibitory injunction relating to immovable property is as under:
" (a) Where a cloud is raised over the plaintiff's title and he does not have possession, a suit for declaration and possession, with or without a consequential injunction, is the remedy.  Where the plaintiff's title is not in dispute or under a cloud, but he is out of possession, he has to sue for possession with a consequential injunction.  Where there is merely an interference with the plaintiff's lawful possession or threat of dispossession, it is sufficient to sue for an injunction simpliciter.
A cloud is said to raise over a person's title, when some apparent defect in his title to a property, or when some prim facie right of a third party over it, is made out or shown.

(b) As a suit for injunction simpliciter is concerned only with possession, normally the issue of title will not be directly and substantially in issue.  The prayer for injunction will be decided with reference to the finding on possession. But in cases where de jure possession has to be established on the basis of title to the property, as in the case of vacant sites, the issue of title may directly and substantially arise for consideration, as without a finding thereon, it will not be possible to decide the issue of possession.
) But a finding on title cannot be recorded in a suit for injunction, unless there are necessary pleadings and appropriate issue regarding title (either specific or implied).  Where the averments regarding title are absent in a plaint and where there is no issue relating to title, the Court will not investigate or examine or render a finding on a question of title, in a suit for injunction.  Even where there are necessary pleadings and issue, if the matter involves complicated questions of fact and law relating to title, the Court will relegate the parties to the remedy by way of comprehensive suit for declaration of title, instead of deciding the issue in a suit for mere injunction.
(d) Where there are necessary pleadings regarding title, and appropriate issue relating to title on which parties lead evidence, if the matter involved is simple and straightforward the Court may decide upon the issue regarding title, even in a suit for injunction.  But such cases, are the exception to the normal rule that question of title will not be decided in suits for injunction.  But persons having clear title and possession suing for injunction, should not  be driven to the costlier and more cumbersome remedy of a suit for declaration, merely because some meddler vexatiously or wrongfully makes a claim or tries to encroach upon his property.  The Court should use its discretion carefully to identify cases where it will enquire into title and cases where it will refer to the plaintiff to a more comprehensive declaratory suit, depending upon the facts of the case."
Therefore, when necessary pleadings are there regarding title, the parties have let in evidence regarding title, the Court can go into the question of title  and give a finding even in a suit for injunction.

13.  In this case, as stated supra, the appellants have pleaded that the property is the ancestral property in the hands of the 4th defendant and in a oral partition, the suit property was allotted to the share of the appellants and they have put up construction and they are in possession and enjoyment of the same.  Therefore,  the plaintiffs/ appellants have specifically pleaded about their title and possession  and that was denied by the respondents in the written statement and parties have let in evidence regarding title and both the Courts have concurrently held that the appellants/ plaintiffs are the owners of the suit property and they are in possession and enjoyment of the same.  Therefore, as held by the Hon'ble Supreme Court in the Judgement referred to above, there are specific pleadings regarding title and evidence was let in and the Courts below have rightly decided the question regarding title and that is permissible in a suit for injunction.  Therefore, the findings of the lower appellate Court that a suit for bare injunction without a prayer for declaration of title, when the same is disputed by the defendants is not maintainable, is not correct.  Further, in my opinion, that contingency may arise if prior to the filing of the suit the title of the plaintiff is disputed by the defendants and in that event it is incumbent on the part of the plaintiffs to pray for declaration and that situation may arise before filing of the suit by exchange notice and reply notice.  Therefore, when the plaintiffs filed the suit based on their title and possession and prayed for injunction and during the pendency of the suit the plaintiffs title is questioned by the defendants for the first time then the Court can go into the question of title also, when necessary pleadings are there and there is no need for the plaintiffs to pray for declaration in that suit.  Therefore, as held by the Hon'ble Supreme Court the Judgement referred to above, a suit for bare injunction is maintainable when parties have come to Court with a specific case of ownership and let in evidence about the title and in that case the Courts below can incidentally give a finding regarding title and the suit cannot be dismissed on the ground that the suit is not maintainable for not praying the relief of declaration.  Hence, the substantial question of law is answered in favour of the appellants and the suit for bare injunction is maintainable and as the appellants proved that there are the owners of the property and they are in possession and enjoyment of the suit property, they are entitled to injunction as prayed for.  

14.   Hence, the Judgement and Decree of the trial Court is confirmed and the first appellate Court Judgement and Decree are set aside and the Second Appeals are allowed. No costs.  Consequently, the connected Civil Miscellaneous Petitions are closed.                                                
 









kr

To

1. The  I Additional District Munsif,
    I Additional District Munsif Court,
    Coimbatore.

2. The I Additional District Judge,
    I Additional District Court,
    Coimbatore

Transfer of Property Act, 1882: s.58 - Mortgage by conditional sale - Held: For transaction to constitute mortgage by conditional sale, it is necessary that the condition is embodied in the document that purports to effect the sale - Mortgage. s.58(e) - Mortgage - Essential conditions for a transaction to constitute an English mortgage - Held: What is important in terms of the requirement of s.58(e) is not that the purchaser has agreed or bound himself to transfer the property by a particular date but that the seller has bound himself to pay the amount by a certain date - In the instant case, sale- deed did not contain any stipulation binding the seller to pay an amount on a certain date - Agreement for re-conveyance was signed by purchaser only - Seller was not a signatory to the said agreement - The seller cannot, therefore, be said to have bound himself to re-pay the mortgage money on future date - The transaction was, thus, not in the nature of English Mortgage. Contract: Agreement for re-conveyance - Held: In a case where the parties enter into a transaction of sale and also execute an agreement for re- conveyance of the property sold, time stipulated for re-conveyance is the essence of the contract - In the instant case, the plaintiff-seller had failed to prove that he had tendered the stipulated amount to the purchaser within the date stipulated in the agreement for re-conveyance - Any claim for re-conveyance made in default of the said stipulation must fail for the right of re-conveyance cannot be saved from forfeiture in the case of default. Specific Relief Act, 1963: s.16(c) - Specific performance - Held: In a suit for specific performance, it is absolutely necessary for the plaintiff to assert that he/she was always ready and willing to perform the essential terms of the contract sought to be enforced against the defendant - s.16(c) makes that requirement mandatory - In the instant case, there was no averment as to the readiness and willingness of the plaintiff to perform his part of the contract - In the absence of such an averment, amendment of the plaint to incorporate a prayer for specific performance of the agreement for re-conveyance would not have advanced the case of the plaintiff. The plaintiff had executed a sale deed in favour of defendant no.1 on 6th, July 1974 in respect of the suit land for Rs.6000/-. He filed a suit for declaration that the sale deed executed by him was void and ineffective and that he continued to be in cultivating possession of the land as owner thereof. The plaintiff's case was that the transfer of the suit land was only by way of security for the repayment of Rs. 6000/- which was taken only as a loan and an agreement was executed between the parties on 6th July, 1974 itself that the return of the loan amount by 6th July, 1981 would result in transfer back of the suit land. The trial court dismissed the suit. The plaintiff filed appeal before the first appellate court. During the pendency of the appeal, the plaintiff filed an application for permission to amend the plaint to add an alternative prayer to the effect that in case the sale-deed in favour of defendant no.1 was held to be validly executed, the plaintiff may be given a decree for specific performance by execution of a sale-deed for the transfer of the suit property in his favour. The first appellate court heard the appeal and the application for amendment together and dismissed both. The High Court held that the dismissal of the application for amendment by the first appellate court was not correct as the proposed amendment would not have made any material difference. On merits, the High Court took the view that whenever a sale-deed is accompanied by a document for re- conveyance of the property sold, the transaction between the parties would amount to a mortgage, subject to the condition that the mortgagee must get the property re-conveyed within the period stipulated for that purpose. The High Court relied upon revenue records for the year 1980-81 and on that basis held that the finding of the courts below that the property was not held jointly by the plaintiff and defendant no.2 was perverse and restrained defendant no.1 from interfering with the possession of the plaintiff till such time he obtained a decree for partition from the revenue court concerned. The instant appeal was filed challenging the order of the High Court Dismissing the appeal, the Court HELD: 1.1. A bare reading of Section 58 of Transfer of Property Act, 1882 would show that for a transaction to constitute mortgage by conditional sale, it is necessary that the condition is embodied in the document that purports to effect the sale. That requirement is stipulated by the proviso which admits of no exceptions. The High Court overlooked the proviso to Section 58(c) according to which the condition regarding payment of the mortgage money as a condition for transfer of the property to the seller must be embodied in the sale-deed itself. That was not so in the instant case. The sale-deed executed by the plaintiff in the instant case did not embody any condition like the one referred to in clause (c) of Section 58. The broad statement of law made by the High Court to the effect that every sale accompanied by an agreement for re-conveyance of the property would constitute a mortgage by conditional sale was, therefore, not correct. [Paras 12, 13] [1030-H; 1031-A-D] K. Simrathmull v. Nanjalingiah Gowder AIR 1963 SC 1182 - relied on. 1.2. For a transaction to constitute an English mortgage the following essential conditions must be satisfied: (1) The mortgagor must bind himself to re-pay the mortgage money on a certain date; (2) The property mortgaged should be transferred absolutely to the mortgagee; (3) Such absolute transfer should be made subject to proviso that the mortgagee shall re- convey the property to the mortgagor upon payment by him of the mortgage money on the date the mortgagor binds himself to pay the same. It is only in cases where all the three requirements are satisfied that the transaction constitutes an English mortgage and not otherwise. The case at hand does not satisfy all the three requirements. In particular, the first requirement where under the mortgagor binds himself to re-pay the mortgage money on a certain date is not satisfied. That is so because the sale-deed executed by the plaintiffs-appellants does not contain any such stipulation binding the seller to pay the amount of Rs.6,000/- on a certain date. As a matter of fact, the sale-deed does not even remotely suggest that the transaction is in the nature of a mortgage or that there is any understanding or agreement between the parties whereunder the property sold has to be re-transferred to the seller. The only other document which could possibly contain such a stipulation binding the mortgagor to return the mortgage money is the agreement for re-conveyance. Significantly, this document was signed only by the purchaser and not by the seller. The document signed by purchaser is described as an agreement for re- conveyance. There is no doubt a stipulation that the purchaser has agreed to re-transfer the property to the seller in case the plaintiff returns the sum of Rs.6,000/- by 6th July, 1981, yet there is nothing in the document to suggest that the seller had bound himself to abide by that stipulation. What is important in terms of the requirement of Section 58(e) is not that the purchaser has agreed or bound himself to transfer the property by a particular date but that seller has bound himself to pay the amount by a certain date. Since the seller is not a signatory to the agreement of re- conveyance, it is difficult to see how he can be said to have bound himself to re-pay the mortgage money by the 6th July, 1981. The transaction was therefore, not in the nature of an English Mortgage and the suit was not a suit for redemption of such a mortgage. [Paras 16, 17] [1032-E-H; 1033-A-G] 1.3. It is incorrect to say that the stipulation of a date for payment of money as a condition for re-conveyance of the property is a clog on equity of redemption. The suit filed by the appellants did not proceed on the basis that the transaction between the parties tantamounted to a mortgage nor did the plaintiff pray for a decree for redemption from the court. The suit was one for declaration to the effect that the sale-deed executed by him was void and the plaintiffs continued to be owner and in occupation. The contention that the transaction between the parties was in the nature of a mortgage or that the suit was in substance one for redemption is accordingly rejected. [Para 17] [1033-G-H; 1034-A-B] 2. In a suit for specific performance, it is absolutely necessary for the plaintiff to assert that he/she was always ready and willing to perform the essential terms of the contract sought to be enforced against the defendant. Section 16(c) of the Specific Relief Act 1963 makes that requirement mandatory. There was no averment as to the readiness and willingness of the plaintiff to perform his part of the contract. In the absence of such an averment, amendment of the plaint to incorporate a prayer for specific performance of the agreement for re-conveyance would not have advanced the case of the plaintiff or the appellants who have succeeded him. Therefore, the view of the High Court that even if the prayer was allowed to be incorporated by amendment, since there was no averment in the plaint to the effect that the plaintiff was ready and willing to perform his part of the contract, any such amendment would be of little value was correct. [Para 18] [1034-C-G] Chunchun Jha v. Ebadat Ali AIR 1954 SC 345; Bismillah Begum (Smt) Dead by Lrs. v. Rahmtullah Khan (Dead) by Lrs. (1998) 2 SCC 226; Gauri Shankar Prasad and Ors. v. Brahma Nand Singh (2008) 8 SCC 287; Caltex (India) Ltd. v. Bhagwan Devi Marodia AIR 1969 SC 405 - relied on. 3. In a case where the parties have entered into a transaction of sale and also executed an agreement for re-conveyance of the property sold, time stipulated for re-conveyance is the essence of the contract. The courts below have concurrently held that the plaintiff had failed to prove that he had tendered the amount of Rs.6,000/- to the purchaser within the date stipulated in the agreement for re-conveyance. That being a finding of fact, any claim for re-conveyance made in default of the said stipulation must fail for the right of re-conveyance cannot in the case of default be saved from forfeiture. The general principle of law that equity grants relief against penalty in a money bond and also against the penal sums made payable on breach of bonds has an exception to it. The exception was recognized by the Federal Court in Shanmugam Pillai case where, by a majority, the Court held that if under an agreement an option to a vendor is reserved for re-purchasing the property sold by him, the option is in the nature of a concession or a privilege and may be exercised in fulfillment of the conditions on the fulfillment of which it is made exercisable. In the instant case there is no allegation of fraud, accident or surprise to call for intervention of equity so as to save the plaintiffs right of re-conveyance of the property against forfeiture. [Paras 19, 21, 22] [1034-H; 1035-A-C; 1036-C-F; 1037-B-C] Ardeshir H. Mama v. Flora Sassoon AIR 1928 PC 208 - relied on. Davis v. Thomas (1830) 39 ER 195; Shanmugam Pillai v. Annalakshmi Ammal AIR 1950 FC 38 - referred to. Case Law Reference: AIR 1963 SC 1182 relied on Para 13 AIR 1954 SC 345 relied on Para 19 (1998) 2 SCC 226 relied on Para 19 (2008) 8 SCC 287 relied on Para 19 AIR 1950 FC 38 referred to Paras 19, 21 AIR 1969 SC 405 relied on Para 19 AIR 1928 PC 208 relied on Para 20 (1830) 39 ER 195 referred to Para 21 CIVIL APPELLATE JURISDICTION : Civil Appeal No. 7471 of 2003. From the Judgment & Order dated 25.02.2003 of the High Court of Madhya Pradesh, Bench at Gwalior in Second Appeal No. 230 of 1995. Sushil Kumar Jain, Puneet Jain, Trishna (for Pratibha Jain) for the Appellant. Shiv Sagar Tiwari for the Respondents.

                                              REPORTABLE



              IN THE SUPREME COURT OF INDIA

              CIVIL APPELLATE JURISDICITION

               CIVIL APPEAL NO.7471 OF 2003



Raj Kishore (Dead) By Lrs.                  ...Appellants


     Versus


Prem Singh & Ors.                           ...Respondents




                     JUDGMENT


T.S. THAKUR, J.



1.   This appeal by special appeal arises out of a judgment

and order dated 25th February, 2003, passed by the High
                             2


Court of Madhya Pradesh at Jabalpur, Gwalior Bench,

whereby Second Appeal No.230 of 1995 filed by the

appellants-plaintiffs was allowed but only in part and to the

extent of granting a decree for injunction restraining the

defendants-respondents from interfering with the possession

of the appellants over the suit property till such time the

said property is partitioned between them through the

competent Revenue Court concerned. The facts necessary

for disposal of this appeal may be briefly stated as under:



2.   Late Shri Raj Kishore the predecessor-in-interest of the

plaintiffs-appellants herein owned jointly with his brother

defendant-respondent no.2 Shri Jugal Kishore agricultural

land situate in different survey numbers of village Morasa,

Tehsil Kurwai in the State of Madhya Pradesh. In terms of a

sale-deed executed and registered on 6th July, 1974 by Shri

Raj Kishore an extent of 14 bighas and 15 biswas of the land

aforementioned from out of survey nos. 436, 439/1 and 441

was transferred to the defendant-respondent no.1 for a sum
                              3


of Rs.6,000/- only. The plaintiff's case is that the transfer

was only by way of security for the repayment of Rs.6,000/-

which according to the plaintiff was taken only as a loan.

The plaintiff's further case is that return of the loan amount

by the 6th July, 1981 would result in the land in question

being transferred back to the plaintiff to which effect an

agreement was also executed between the parties to the

transaction on the 6th July, 1974 itself. The plaintiff alleged

that the possession of the land in question continued with

him and defendant no.2 as agreed. It was also agreed

between the parties that defendant no.1 shall not get the

disputed land mutated in their name till 6th July, 1981, the

date by which the plaintiff could repay the amount of loan

and secure the return of their land.



3.   The plaintiff further alleged that contrary to the

agreement between the parties defendant no.1 got a

mutation regarding the land in question attested in his

favour although he had no right to do so in view of the
                             4


specific stipulation contained in the agreement between the

parties forbidding any such mutation. The plaintiff asserted

that they had approached defendant no.1 several times to

receive back the sum of Rs.6,000/- borrowed from him and

to get the land in question transferred back to them, but the

said defendant had refused to do the needful. The plaintiff

in that backdrop prayed for a decree for declaration to the

effect that the sale-deed executed by him in favour of

defendant no.1 was void and ineffective and that he

continued to be in cultivating possession of the land as

owner thereof.



4.   Defendant-respondent no.1 contested the suit by filing

a written statement in which he denied the assertion that

the sale-deed in question was executed by way of security

for repayment of any loan. It was also alleged that the

defendant was in possession of the land in question ever

since the execution of the sale-deed and that a mutation

based on the sale-deed had been attested in his favour.
                               5


Defendant    no.1    further   alleged   that   he   had   made

improvements over the land and that a suit for declaration

simplicitor was not maintainable as the plaintiff was out of

the possession of the land in question.



5.   On the pleadings of the parties the Trial Court of Civil

Judge First Class, Kurwai, District Vidisha, framed as many

as eight issues for determination and recorded evidence

adduced by the parties before it. The Trial Court eventually

held that the sale-deed in question was not executed as

security for any loan as alleged by the plaintiff nor was the

execution of agreement dated 6th July, 1974 proved. The

Trial Court further held that defendant no.1 had not forcibly

occupied the land in question during the pendency of the

suit as alleged by the plaintiff.



6.   Aggrieved by the dismissal of the suit the plaintiff

appealed to the District Judge, Vidisha, M.P. During the

pendency of the said appeal the plaintiff filed an application
                                 6


for permission to amend the plaint to add an alternative

prayer to the effect that in case the sale-deed in favour of

defendant no.1 was held to be validly executed, the plaintiff

be given a decree for specific performance by execution of a

sale-deed for the transfer of the suit property in his favour.

This application was allowed by the Trial Court but in

revision the same was set aside and the amendment

application directed to be considered along with the main

appeal.



7.    The First Appellate Court accordingly heard the appeal

and the application for amendment together and by its

judgment and order dated 19th July, 1995 dismissed both.

The   First   Appellate   Court       held   that   the   prayer   for

amendment of the plaint to seek a decree for the transfer of

the land in question in favour of the plaintiffs-appellant was

time barred and that the amendment would in any case alter

the nature of the suit.
                                 7


8.   On the merits of the case the First Appellate Court held

that there was no stipulation in the sale-deed that the land

transferred thereby shall be retransferred to the Vendor by

executing a sale-deed in his favour. In so far as agreement

(marked Ex.D1) for retransfer of the land in question to the

plaintiff was concerned, the First Appellate Court held that

while the execution of the agreement was proved there was

no mention in the same about the sale-deed in question

being by way of security for repayment of the loan. The First

Appellate Court observed:



          "It is clear from the above analysis that the alleged
          sale deed of Ex.D-1 and agreement Ex.P-1 for which
          dispute has been raised and evidence adduced is
          actually a Sale deed. This Sale deed was not written
          for the security of loan. Similarly it is also clear that
          agreement of Ex.P-1 was        written       by       the
          Defendant No.1 but writing of Sale deed Ex.D-1 for
          Security on the basis of this agreement is not proved
          and the Appellants/Plaintiffs do not have eligibility of
          any relief from Defendant No.1 on the basis of this
          agreement. Hence, the judgment and decree passed
          by the lower court is not erroneous."
                             8


9.   Aggrieved   by   the   judgment   aforementioned    the

plaintiffs-appellants filed second appeal No.230 of 1995

before the High Court of Madhya Pradesh, Gwalior Bench.

The High Court held that the dismissal of the application for

amendment by the First Appellate Court on the ground that

the prayer sought to be incorporated by the amendment was

barred by limitation was not correct. All the same the

proposed amendment would make no material difference

unless the plaintiff also pleaded that he was ready to

perform his part of the contract so as to entitle him to any

relief based on the agreement executed between the parties.

The dismissal of the application was on that ground upheld.



10. On the merits of the case the High Court took the view

that whenever a sale-deed was accompanied by a document

for re-conveyance of the property sold the transaction

between the parties would amount to a mortgage, subject to

the condition that the mortgagee must get the property re-

conveyed within the period stipulated for that purpose. The
                               9


High Court further held that there was no cogent evidence

on record to prove that defendant no.1 was in possession of

the suit land on the date of the filing of the suit. Even in

Ex.D-2 relied upon by the defendant, the property was

recorded jointly in the names of the plaintiff and defendant

no.2 in the revenue records for the year 1980-81. The High

Court on that basis held that the finding of the Courts below

that the property was not held jointly by the plaintiff and

defendant no.2 was perverse. The appeal was accordingly

allowed   in   part   and   defendant   no.1   restrained   from

interfering with the possession of the plaintiff till such time

he obtained a decree for partition from the revenue court

concerned. The present appeal assails the above judgment

and order of the High Court as noticed earlier. Raj Kishore

the plaintiff in the suit having passed away during the

pendency of this appeal, his legal representatives were

brought on record on 5th November 2008.
                              10


11. We have heard learned counsel for the parties at

length. As seen above, the High Court has, while dealing

with the substantial question of law framed by it for

determination, held that whenever conveyance of any

property is accompanied by a document for re-conveyance

of the same to the seller the transaction would amount to a

mortgage. That proposition of law is not in our opinion

correctly stated. Although the High Court has not elaborated

as to what kind of mortgage an agreement for re-

conveyance would bring about, it is obvious that the High

Court meant to say that the transaction would constitute a

mortgage by conditional sale. Mortgage by conditional sale

is described by Section 58 as under:



          "58 (c) Mortgage by conditional sale.-Where, the
          mortgagor ostensibly sells the mortgaged property--

               on condition that on default of payment of the
          mortgage-money on a certain date the sale shall
          become absolute, or


                on condition that on such payment being made
          the sale shall become void, or
                               11



               on condition that on such payment being made
          the buyer shall transfer the property to the seller,

                the transaction is called a mortgage by
          conditional sale and the mortgagee a mortgagee by
          conditional sale:

                 Provided that no such transaction shall be
          deemed to be a mortgage, unless the condition is
          embodied in the document which effects or purports
          to effect the sale."




12. A bare reading of the above would show that for a

transaction to constitute mortgage by conditional sale it is

necessary that the condition is embodied in the document

that purports to effect the sale. That requirement is

stipulated by the proviso which admits of no exceptions.



13. The High Court it is manifest from the judgment under

appeal overlooked the proviso according to which the

condition regarding payment of the mortgage money as a

condition for transfer of the property to the seller must be

embodied in the sale-deed itself. That is not so in the instant

case. The sale-deed executed by the plaintiff in the instant
                             12


case does not embody any condition like the one referred to

in clause (c) of Section 58 extracted above.        The broad

statement of law made by the High Court to the effect that

every sale accompanied by an agreement for re-conveyance

of the property will constitute a mortgage by conditional sale

is not, therefore, correct. That is also the view taken by this

Court in K. Simrathmull v. Nanjalingiah Gowder AIR

1963 SC 1182 where the plaintiff had borrowed a certain

amount from the defendant and in lieu thereof executed a

deed of conveyance of certain land together with the house

standing thereon in favour of the defendant. Another deed

of re-conveyance was executed by the defendant on the

same date by which the defendant-purchaser of the property

agreed to re-convey the house provided the exercise of the

right of demanding re-conveyance took place within two

years and rent payable by the plaintiff is not in arrears for

more than six months at any time.       On the breach of the

second condition stipulated by the agreement for re-

conveyance the defendant-purchaser refused to re-convey.
                                 13


In a suit for specific performance the plaintiff sought to

invoke the equitable jurisdiction of the Court to give him

relief against the forfeiture clause. This Court held that the

sale-deed and the deed of conveyance and rent were no

doubt parts of the same transaction yet the transaction did

not constitute a mortgage by conditional sale. This Court

observed:



            "The sale deed the deed of reconveyance Ext. A-1
            and the rent note Ext. B-1 were undoubtedly parts of
            the same transaction. The plea of the plaintiff that
            the sale deed Ext. A-1 constituted a transaction of
            mortgage by conditional sale is inadmissible,
            because the sale deed and the covenant for
            reconveyance are contained in separate documents".



14. The finding of the High Court as to the legal effect of

the transaction of sale followed by an agreement for re-

transfer of the property is not, therefore, legally sound.



15. Mr. Jain learned counsel for the appellants all the same

argued that the transaction in question was in the nature of
                                 14


an English Mortgage as defined under Section 58(e) of the

Transfer of Property Act, 1882 which reads as under:


            "58 (e) English mortgage.- Where the mortgagor
            binds himself to repay the mortgage-money on a
            certain date, and transfers the mortgaged property
            absolutely to the mortgagee, but subject to a proviso
            that he will re-transfer it to the mortgagor upon
            payment of the mortgage-money as agreed, the
            transaction is called an English mortgage."



16. A plain reading of the above would show that for a

transaction to constitute an English mortgage the following

essential conditions must be satisfied:


(1)   The   Mortgagor     must    bind    himself    to   re-pay    the

      mortgage money on a certain date.

(2)   The    property     mortgaged      should      be   transferred

      absolutely to the Mortgagee.

(3)   Such absolute transfer should be made subject to

      proviso    that   the   Mortgagee      shall   re-convey      the

      property to the Mortgagor upon payment by him of the

      mortgage money on the date the Mortgagor binds

      himself to pay the same.
                             15




17. It is only in cases where all the three requirements

indicated above are satisfied that the transaction constitutes

an English mortgage and not otherwise. The case at hand

does not satisfy all the three requirements mentioned

above. In particular the first requirement where under the

Mortgagor binds himself to re-pay the mortgage money on a

certain date is not satisfied in the instant case. We say so

because the sale-deed executed by the plaintiffs-appellants

does not contain any such stipulation binding the seller to

pay the amount of Rs.6,000/- on a certain date. As a matter

of fact, the sale-deed does not even remotely suggest that

the transaction is in the nature of a mortgage or that there

is any understanding or agreement between the parties

whereunder the property sold has to be re-transferred to the

seller. The only other document which could possibly contain

such a stipulation binding the Mortgagor to return the

mortgage money is the agreement for re-conveyance.

Significantly, this document is signed only by Prem Singh
                             16


the purchaser and not by the seller. The document signed by

Prem Singh is described as an agreement for re-conveyance.

There is no doubt a stipulation that Prem Singh has agreed

to re-transfer the property to the seller in case the plaintiff

Raj Kishore returns the sum of Rs.6,000/- by 6th July, 1981

yet there is nothing in the document to suggest that the

seller had bound himself to abide by that stipulation. What is

important in terms of the requirement of Section 58 (e) is

not that the purchaser has agreed or bound himself to

transfer the property by a particular date but that seller has

bound himself to pay the amount by a certain date. Since

the seller is not a signatory to the agreement of re-

conveyance it is difficult to see how he can be said to have

bound himself to re-pay the mortgage money by the 6th July,

1981. We have, therefore, no difficulty in rejecting the

contention urged on behalf of the appellants that the

transaction was in the nature of an English Mortgage and the

suit was in essence a suit for redemption of such a

mortgage. We have also in that view no difficulty in repelling
                             17


the contention urged by Mr. Jain that the stipulation of a

date for payment of money as a condition for re-conveyance

of the property is a clog on equity of redemption.         We

cannot overlook the fact that the suit filed by the appellants

did not proceed on the basis that the transaction between

the parties tantamounted to a mortgage nor did the plaintiff

pray for a decree for redemption from the Court. The suit

was, as noticed earlier, one for declaration to the effect that

the sale-deed executed by him was void and the plaintiffs

continued to be owner and in occupation. The contention

that the transaction between the parties was in reality one in

the nature of a mortgage or that the suit was in substance

one for redemption has not, therefore, impressed us and is

accordingly rejected.



18. The only other question that arises for consideration is

whether the plaintiff could rely upon the agreement for re-

conveyance and pray for a decree for specific performance

thereof. The plaintiff had, in that regard, sought an
                              18


amendment which was declined by the Courts below.            The

first appellate Court was of the view that even if the relief

sought to be incorporated by amendment was allowed to be

incorporated the same would be time-barred.           The High

Court was on the contrary of the view that even if the prayer

was allowed to be incorporated by amendment since there

was no averment in the plaint to the effect that the plaintiff

was ready and willing to perform his part of the contract any

such amendment would be of little value.        The High Court

was, in our opinion, correct in the view taken by it. In a suit

for specific performance it is absolutely necessary for the

plaintiff to assert that he/she was always ready and willing

to perform the essential terms of the contract sought to be

enforced against the defendant. Section 16(c) of the Specific

Relief Act 1963 makes that requirement mandatory. There

is, in the present case, no averment as to the readiness and

willingness of the plaintiff to perform his part of the contract.

In the absence of such an averment, amendment of the

plaint to incorporate a prayer for specific performance of the
                             19


agreement for re-conveyance would not have advanced the

case of the plaintiff or the appellants who have succeeded

him.


19. More importantly, in a case where the parties have

entered into a transaction of sale and also executed an

agreement for re-conveyance of the property sold, time

stipulated for re-conveyance is the essence of the contract.

The law on the subject is fairly well-settled by the decisions

of this Court in Chunchun Jha v. Ebadat Ali (AIR 1954 SC

345),   Bismillah   Begum      (Smt)    Dead    by   Lrs.   v.

Rahmtullah Khan (Dead) by Lrs. (1998) 2 SCC 226 and

Gauri Shankar Prasad and Ors. v. Brahma Nand Singh

(2008) 8 SCC 287.     Relying upon the decision of Federal

Court in Shanmugam Pillai v. Annalakshmi Ammal AIR

1950 FC 38, this Court in Caltex (India) Ltd. v. Bhagwan

Devi Marodia AIR 1969 SC 405, held that in contracts

relating to re-conveyance of property time is always the

essence of the contract. This Court observed:
                               20


          "At common law stipulation as to time in a contract
          giving an option for renewal of a lease of land were
          considered to be of the essence of the contract even
          if they were not expressed to be so and were
          construed as conditions precedent. Equity followed
          the common law rule in respect of such contracts
          and did not regard the stipulation as to time as not
          of the essence of the bargain"




20. This Court also held that the principle stated by the

Federal Court in Ardeshir H. Mama v. Flora Sassoon AIR

1928 PC 208 to the effect that time is not normally the

essence of the contract in contracts relating to immovable

property did not apply to contracts for re-conveyance of the

immovable property. This Court observed:


          "The above passage refers both to options for
          renewal and options to repurchase where, in regard
          to immovable property, as a matter of law time
          becomes the essence of the contract. Therefore in
          regard to contracts of reconveyance relating to
          immovable property the principle laid down in A.H.
          Mama v. Flora Sassoon - that time is not normally
          the essence of the contract in contracts relating to
          immovable property - does not apply. It is in fact,
          so observed in Caltex (India) Ltd. case. In view of
          the abovesaid decision of this Court relating to
          contract of reconveyance, and inasmuch as the
          amount was not paid within the stipulated time, the
          said option in favour of the plaintiff must be deemed
          to have "lapsed". For the aforesaid reasons, the
          appeal fails and is dismissed. No costs."
                               21


                                      (emphasis       added)




21. The Courts below have concurrently held that the

plaintiff had failed to prove that he had tendered the amount

of Rs.6,000/- to the purchaser within the date stipulated in

the agreement for re-conveyance. That being a finding of

fact any claim for re-conveyance made in default of the said

stipulation must fail for the right of re-conveyance cannot in

the case of default be saved from forfeiture. The general

principle of law that equity grants relief against penalty in a

money bond and also against the penal sums made payable

on breach of bonds has an exception to it.        The exception

was recognized by the Federal Court in Shanmugam Pillai

case (supra) where by a majority the Court held that if

under an agreement an option to a vendor is reserved for

repurchasing the property sold by him, the option is in the

nature of a concession or a privilege and may be exercised

in fulfillment of the conditions on the fulfillment of which it is

made exercisable.      If   the original vendor     fails   to act
                                22


punctually according to the terms of the contract, the right

to repurchase will be lost and cannot be specifically

enforced. Refusal to enforce the terms for failure to abide by

the conditions does not amount to enforcement of a penalty

and the Court has no power to afford relief against the

forfeiture arising as a result of breach of such a condition.

The Court followed the principle set out in Davis v. Thomas

(1830) 39 ER 195.      The above principle was recognized to

be correct in K. Simrathmull case (supra). This Court also

quoted with approval the following passage from Halsbury's

Laws of England Vol.14, III Edn., page 622, paragraph

1151:


                "Where under a contract, conveyance, or will a
          beneficial right is to arise upon the performance by
          the beneficiary of some act in a stated manner, or at
          a stated time, the act must be performed accordingly
          in order to obtain the enjoyment of the right, and in
          the absence of fraud, accident or surprise, equity will
          not relieve against a breach of the terms".




22. In the present case there is no allegation of fraud,

accident or surprise to call for intervention of equity so as to
                            23


save the plaintiffs right of re-conveyance of the property

against forfeiture.



23. In the result this appeal fails and is hereby dismissed

but in the circumstances without any order as to costs.




                                   .................................J.
                                   (MARKANDEY KATJU)



                                   .................................J.
                                   (T.S. THAKUR)
New Delhi
December 10, 2010

under Section 22(2) of the Specific Relief Act, 1963 the plaintiff can be permitted to amend the relief for refund of earnest money at any stage. Section.22(2) of the said Act reads as under:- "Section.22. Power to grant relief for possession, partition, refund of earnest money, etc., (1).......................... (2) No relief under clause (a) or clause (b) of sub-section (1) shall be granted by the Court unless it has been specifically claimed: Provided that where the plaintiff has not claimed any such relief in the plaint, the court shall, at any stage of the proceeding, allow him to amend the plaint on such terms as may be just for including a claim for such relief."

THE HONOURABLE SRI JUSTICE N.R.L.NAGESWARA RAO            

SECOND APPEAL NO.244 OF 2011      

29-08-2012

Padam Satyanarayana  

Smt.Ravula Varalakshmi and others

Counsel for the Appellant : Sri K.Chidambaram

Counsel for the Respondents: Sri Nimmagadda Satyanarayana  

<Gist :

>Head Note:

? Cases referred:

1.  1997-LAWS (PAT)-3-52
2.  AIR 2009 SC (SUPP) 2897
3. 1984 (1) An.W.R.336

JUDGMENT:-  

The defendant in O.S.No.14 of 1994 on the file of the court of Senior Civil
Judge, Kovvur is the appellant herein.

02.     The suit was one filed for specific performance of contract of sale
contending inter alia that the defendant has entered into an agreement of sale
on 17-12-1993 and first plaintiff paid an advance of Rs.1,15,000/- and the
balance of Rs.10,000/- is agreed to be paid by 17-03-1994. In case of default,
interest shall be paid @ 18%. After the said transaction, as there was an offer
for higher price, the defendant has issued a notice on 18-12-1993 with false
allegations for which a proper reply was given. Consequently, the suit was filed
for specific performance.

03.     The defendant has denied the sale transaction and claimed that the son-in-
law of the first plaintiff took the defendant to the house of the first
plaintiff on 17-12-1993 and asked the defendant to sign on blank stamped papers
and due to fear and threat, he signed on the said papers. During the pendency of
the suit, the relief of amendment for alterative relief of refund of money was
filed and defendant contended that the said claim is barred by time.

04.     After appreciation of the evidence on record, the court below has accepted
the agreement of sale as true, but, however, granted a decree for refund of the
advance money of Rs.1,15,000/- with interest @ 6%. As against that the appeal
was preferred to the VII Additional District Judge, West Godavari, at Eluru who
has also confirmed the said judgment and decree. Aggrieved by the said judgment,
the present Second Appeal is sought to be filed. The Second Appeal is admitted
on the following substantial questions of law:-
        (i) Whether the relief of refund of the consideration is barred by time;
and 
        (ii) Whether Section 22 of the Specific Relief Act is independent or
subject to the provisions of the Limitation Act?

05.     The learned counsel for the appellant sought to contend that the courts
below have not properly appreciated the evidence with regard to execution of the
agreement and passing of the consideration. Evidently, it is a question of fact,
which has to be decided by the court below. Considering the evidence of PWs.1 to
5, both the courts have found that the agreement is true and on the next day of
the agreement, a notice is given by the defendant is no ground to accept his
contention. It is difficult to believe that the agreement was obtained by force
or coercion. The particulars of which are not properly pleaded. Therefore, the
appellant cannot be allowed to contend on the question of fact about the
truthfulness of the agreement and also the payment of the consideration.

06.     The learned counsel for the appellant sought to contend that the
alternative relief claimed by the plaintiff is barred by limitation as it was
not pleaded at the time of filing of the suit. As matter stands, evidently, the
alternative relief was not claimed when the suit was filed. The agreement of
sale is dated 17-12-1993 and the suit was filed on 17-03-1994. There is no doubt
about the fact that the alternative plea of the refund of consideration was
taken by the plaintiffs 2 to 5 who are the legal representatives of the first
plaintiff, who came on record in the year 1999. Evidently it is beyond three (3)
years from the date of suit and also from the date of agreement. It is to be
noted that under Section 22(2) of the Specific Relief Act, 1963 the plaintiff
can be permitted to amend the relief for refund of earnest money at any stage.
Section.22(2) of the said Act reads as under:-
"Section.22. Power to grant relief for possession, partition, refund of earnest
money, etc.,
(1)..........................
(2) No relief under clause (a) or clause (b) of sub-section (1) shall be granted
by the Court unless it has been specifically claimed:
Provided that where the plaintiff has not claimed any such relief in the plaint,
the court shall, at any stage of the proceeding, allow him to amend the plaint
on such terms as may be just for including a claim for such relief."

07.     The learned counsel for the appellant relied upon a decision reported in
Bhagwati Prasad Jalan Vs. Smt.Prem Lata Devi Kedia1 whereunder the contention of
the appellant herein is supported. He also relied upon another decision reported
in M/S.Revajeetu Builders and Developers Vs. M/s. Narayanaswamy and Sons and  
Ors2 whereunder an amendment of the plaint introducing the new cause of action,
if it is barred by limitation, cannot be allowed.

08.     However, it is to be noted that the provision under Section 22(2) of the
Act is a special provision and it gives the power of amendment at any stage of
the proceedings. On this aspect, a decision rendered by this court reported in
Donthi Padmavathamma and another Vs. Suguna Fertilizers, by its Managing Partner
Durgamma Temple Street, Dharmavaram3 will answer the contention raised by the
counsel for the appellant and it was held in the said decision as under:-

"The proviso to sub-clause (5) of section 21 is clear and unambiguous and
enables the plaintiff to seek the amendment of the plaint at any stage of the
proceeding.  The object obviously is to avoid multiplicity of suits.  The
expression "at any stage" in it means without limitation either in the frequency
or duration or length of time.  The question of applying the provisions of the
Indian Limitation Act in a case where the amendment of the plaint is sought
either under sub-clause (5) of section 21 or sub-clause (2) of section 22 of the
Act does not arise.  A specific relief is an equitable remedy and the Courts are
competent to grant the relief sought for or other specific remedies which are
incidental.  It is a matter of common knowledge that in some cases the contract
becomes unenforceable and the party suffers some loss.  In such a case, it is
open for the party to ask for damages in the alternative in the same suit and
Section21 of the Act provides for the same".



09.     Therefore, in view of the above circumstances, there is no substantial
question of law involved in this Second Appeal and the same is liable to be
dismissed.,
Accordingly, the Second Appeal is dismissed. No costs.


_______________________  
N.R.L. NAGESWARA RAO,J    
29-08-2012