Arun Kumar Goel, J.
1. This appeal was admitted on 12-10-1998 on the following substantial questions of law :
1. Whether the plaintiff/respondent can compel the vendor/appellant No. 2 to perform his part of the contract after the expiry of the date of the alleged agreement i.e. 25-2-1989?
2. What is the legal effect of the writing dated 26-12-1990?
3. If, the time is the essence of the contract whether plaintiff/respondent has performed his part of contract, if not, its effect?
4. Whether the plaintiff/respondent has proved his continuous readiness and willingness to perform his part of contract in the evidence and upto the date of decreeing the suit, if not its effect?
5. What is the effect of material contradictions in the pleadings and evidence?
6. Whether appellant No. 2 is a bona fide purchaser after the expiry of the date of alleged agreement i.e. 25-2-1989?
7. Whether the suit of the plaintiff was filed within time?
8. Whether the alleged agreements or writings are genuine or not?
2. Appellants were the defendants in the trial Court and respondent was the plaintiff. Both sides are being referred to as such in this judgment.
3. A suit for specific performance was filed by the plaintiff against the defendants on the plea that parties entered into an agreement to sell on 25-2-1988 (Ex. PW2/A). By means of this agreement, defendant No. 1 Rohlu agreed to sell his land measuring 3-2-0 bighas as detailed in the plaint for a consideration of Rs. 9500/-. At the time of entering into this agreement, Rs. 3800/-were received by defendant No. 1 from the plaintiff. Balance amount was payable after deducting Rs. 66.50 being the mortgage money at the time of executing and registration of the sale deed of the suit land by the said defendant in favour of the plaintiff. Time for execution and registration of sale deed was fixed upto 25-2-1989. On 3-5-1988 defendant No. 1 demanded a further sum of Rs. 1600/- which was paid to him by the plaintiff. A further agreement was entered into between the' parties on this date i.e. 3-5-1988 (Ex. PW2/B). Now a sum of Rs. 4100/- after deducting the mortgage money was to be received by defendant No. 1 from the plaintiff at the time of execution and registration of the sale deed. Time of execution and registration of sale deed was also extended as per this document. Plaintiff claimed that he was always ready and willing and was still ready to perform his part of the contract by making payment of the balance sale consideration which in fact was tendered by him to defendant No. 1. However, needful was not done by the said defendant. In addition to the aforesaid amounts, a further sum of Rs. 3100/- was received by defendant No. 1 on 26-12-1990 which fact is acknowledged in writing. Further case of the plaintiff was that instead of executing the sale deed and getting it registered on receipt of the balance amount, with a view to defeat his claim, defendant No. 1 executed sale deed (Ex. DA) in favour of defendant No. 2 for and ostensible consideration of Rs. 38,000/-. He further claimed that defendant No. 2 was well aware regarding existence of the agreement between the parties, i.e. plaintiff on one side and defendant No. 1 on the other. Despite this, sale deed was executed as above between the defendants. Thus plaintiff was not bound by the sale deed, which was illegal, null and void.
4. Defendants when put to notice contested and resisted the suit by filing separate written statement. While admitting the agreement dated 25-2-1988, defendant No. 1 pleaded that taking undue advantage of his illiteracy actual terms entered between the parties were not mentioned in the said agreement. Thus the agreement was obtained by practicing fraud, on him. He denied the receipt of Rs. 38,000/- on 25-2-1988. According to him only a sum of Rs. 1800/- was received by defendant No. 1 from the plaintiff and thus a sum of Rs. 7700/- was payable on or before 25-2-1989 and the sale was to be executed. In case the balance out of the agreed consideration was not paid the earnest money was to be forfeited and the agreement was to be treated as cancelled/revoked. Certain other conditions were incorporated in connivance with the scribe (PW-2 Bhuvneshwar Dutt). He also denied having received a sum of Rs. 3100/- on 26-12-1990 as well as Rs. 1600/-on 3-5-1988.
5. So far defendant No. 2 is concerned, her case is simple that she was not aware about agreement between the plaintiff and defendant No. 1. Thus according to her, she is a bona fide purchaser for consideration without notice of the prior agreement.
6. In the replication filed by the plaintiff to the written statements of the defendants pleas which were contrary to those set up in the plaint were denied and facts as set out in the plaint were reiterated. Trial Court framed following issues and finally decreed the suit.
1. Whether the plaintiff is entitled to decree of specific performance as alleged on the basis of agreement to sell dated 25-2-1988? OPP
2. Whether the agreement to sell and receipts are not genuine documents as alleged in the preliminary objection No. 1? OPD-2
3. Whether the suit is riot within time? OPD-1
4. Whether the defendant No. 2 is a bona fide purchaser of the suit land from defendant No. 1 without knowledge of agreement dated 25-2-1988? OPD-2
5. Whether the alleged agreement dated 25-2-1988 is without consideration and unilateral and is not legally enforceable? OPP
6. Relief.
7. The defendants challenged this decree in appeal before the learned first appellate Court, who while dismissing the same upheld the decree of trial Court, hence this second appeal.
8. Mr. Bhardwaj, learned counsel appearing for the, defendants urged, that there is no legal evidence so as to uphold the judgments of the Courts below. According to him none of the documents i.e. agreement Ex. PW2/A of 1988, subsequent agreement Ex. PW2/B that too of 1988 and receipt Ex.PW4/A have been proved on record In accordance with law. Once this conclusion is arrived at, both the Courts below could not. have decreed the suit of the plaintiff. That being the position impugned judgment is perverse, and therefore, this appeal deserves to be allowed.
9. On the other hand, all these pleas have been controverted by Mr. Gautam, learned counsel appearing for the plaintiff. According to him, his client has clearly proved the execution of aforesaid documents and has also proved his readiness and willingness to perform his part of the agreement. According to him time was extended as per terms of agreement agreed between the parties. He referred to documents i.e. Ex. PW2/B as well as Ex. PW4/A. Before the expiry of such period, per Mr. Gautam defendant No. 1 created a device by executing a sale deed to defeat the claim of this client in favour of defendant No. 2, vide Ex. DA. Per him defendant No. 2 was a bona fide purchaser for consideration that too without notice.
10. Defendant No. 2 in law was required to place on record material in the shape of legal evidence to establish her claim of bona fide purchaser, that she made inquiries either from defendant No. 1 or through any other source so as to satisfy herself that there was no bar on the said defendant No. 1 to have executed the sale deed in her favour. What to talk of leading evidence she has not even stepped into the witness box. Though she has proved on record Ex. DA by producing its scribe before the trial Court i.e. DW-3 Sita Ram Mahant, Document Writer, Kullu.
11. In my considered view on the basis of Ex. DA only having been proved, learned counsel for the defendants cannot be permitted to argue that defendant No. 2 is a bona fide purchaser. For establishing this as a question of fact, said defendant was required to have stepped into the witness box. There is no evidence to this effect.
12. So tar statement of PW-1 plaintiff is concerned, it has remained unshaken. He has pledged his oath, and has further established the fact of payments made on different dates as detailed in the plaint as well as in his statement vide Ex. PW2/A and Ex. PW2/B, both having been scribed by Bhuvneshwar butt, Document Writer, Kullu (PW-2). This witness has also proved on record not only having scribed the two documents but has also proved their execution in accordance with law and thereafter having entered those in his register. Ex. PW2/A is entered at Serial No. 137 on 25-2-1988/ 6-12-1989 and Ex. PW2/B having been entered at serial No. 300 on 3-5-1988. In his cross-examination, there is nothing extracted, on the basis of which it can be said that this is a case of either no evidence or findings to these two documents are perverse so as to interfere in this appeal. Similarly, PW-3 Mani Ram is the marginal witness of documents i.e. Ex. PW2/A and Ex. PW2/B. He has withstood the test of cross-examination on behalf of the defendants.
13. In this case PW-4 is Hari Dass. He is none else but father of defendant No. 1. He has clearly proved Ex. PW4/A when Rs. 3100/- was received by the defendant No. 1 from the plaintiff. PW-5 Sangat Ram, who was examined in rebuttal is the scribe of Ex. PW4/A.
14. In these circumstances, plea urged on behalf of defendant No, 1 regarding aforesaid documents i.e. Ex. PW2/A, Ex. PW2/B and Ex. PW4/A having not been either proved or being result of misrepresentation as well as of fraud has no merit. This plea has been raised simply to be rejected.
15. Besides this there is overwhelming reliable and trustworthy evidence which proves the receipt of amount on three different occasions by defendant No. 1 from the plaintiff. At the risk of repetition, it may be reiterated that nothing has been attributed to PW-4 who is father of defendant No. 1 so as to doubt his statement, which is adverse to the interest of his own son i.e. defendant No. 1.
16. In the light of the aforesaid discussion question No. 1 is answered against the defendant No. 2 because in the face of documents referred to hereinabove plaintiff could force defendant No. 1 to execute the sale deed within the extended period.
17. Similarly, question Nos. 2 and 3 are also answered against the defendants-appellants. Reason being that there was no laxity on the part of the plaintiff in getting the sale deed executed and registered in his favour. So far defendant No. 1 is concerned suffice it to say that in case of agreement to sell Immovable property time is not essence, unless it is specifically intended to be made by the parties. There is overwhelming documentary evidence which has been rightly accepted by both the Courts below such findings are upheld in this appeal that within the extended time plaintiff could have got the sale deed executed and registered. But defendant No. 1 had already executed sale deed Ex. DA in favour of defendant No. 2.
18. Question No. 4 is also answered against the defendant. Reason being that plaintiff was always ready and willing to perform his part of the contract as per evidence discussed hereinabove.
19. Plea of material contradictions has been raised simply to be rejected. On material on record, particularly the statements of PWs-1 to 5 question No. 5 is answered against the defendants.
20. There is no legal evidence so as to hold that defendant No. 2 was a bona fide purchaser for consideration. She has not cared to step into the witness box. As such mere proof of Ex. DA the sale deed in her favour by defendant No. 1 is of no consequence. Therefore question No. 6 is answered against the defendant No. 2.
21. Suit on the basis of the documents in question was well within time as detailed in the judgments of the Courts below and as discussed here-in-above. Because as per statements of PWs and proved documents time stood extended for completion of sale transaction. In the instant case, suit was filed on 14-7-1993 before the trial Court, therefore, it was within time. So question No. 7 is answered against the defendants.
22. In view of the oral and documentary evidence discussed here-in-above, all the three documents i.e. Ex. PW2/A, Ex. PW2/ B and Ex. PW4/A were genuine. Their execution has been proved in accordance with law. Thus question No. 8 is also answered against both the defendants-appellants.
23. So far jurisdiction of this Court in appeal under Section 100, CPC is concerned, the matter was set at rest long ago, as far back as in 1963 by three-Judge Bench in V. Ramachandra Ayyar v. Ramalingam Chettiar, AIR 1963 SC 302, wherein while allowing the appeal it was held as under :
'Held that the High Court was not Justified in interfering with the finding of fact recorded by the lower appellate Court merely because the judgment of the lower appellate Court was not as elaborate as that of the trial Judge, or because some of the reason given by the trial Judge had not been expressly reversed by the lower appellate Court. The findings of the lower appellate Court could not be said to be perverse or not supported by any evidence.'
24. Again while dealing with Section 100 of the CPC another three-Judge Bench of Supreme Court in Mst. Kharbuja Kuer v. Jang Bahadur Rai, AIR 1963 SC 1203, was of the view, that concurrent findings of fact that there was partition and separation in the joint family and those being based on evidence and such finding having direct impact on main question to be decided in the case were findings of fact based on evidence is thus binding in the second appeal.
25. In Babu Ram alias Durga Prasad v. Indra Pal Singh (Dead) by L.Rs. (1998) 6 SCC 358 : (AIR 1998 SC 3021) while dealing with Section 100, CPC it was held as under at Page 3026 of AIR:
'14. In our view, the High Court, while holding that the sale deed dated 15-9-1964 was traceable to a new agreement erred seriously in making out of a new case for which there was neither any issue nor evidence. In fact, the defendant specifically admitted in his evidence as DW-1 that there was no fresh agreement between the Official Receiver and the defendant at or before the execution of the sale deed dated 15-9-1964 The defendant, no doubt, came forward with such a statement to negative any fresh agreement of reconveyance entered into by and between the Official Receiver and the defendant. But that evidence equally negatives the theory that the sale deed dated 15-9-1964 was executed pursuant to a fresh or new agreement entered into between the Official Receiver and the defendant. The recitals in the sale deed do not support such a contention. Further, the sale by the Official Receiver was one made pursuant to the Court order dated 21-11-1963 and was not a sale in exercise of his normal powers to sell the insolvent's property nor was it a sale for distributing the sale proceeds to the creditors. No doubt; the Court's order permitted the 'Interim Receiver' to sell but in view of the subsequent adjudication of the debtor as an insolvent on 29-5-1964, the sale deed had to be executed by the Official Receiver. A reading of the sale deed dated 15-7-1964 which is in Hindi and was read out in Court showed that it was executed in pursuance of the agreement between the creditor and the 'insolvent, second party'. The sale deed did not refer to any agreement with the 'Official Receiver' who was one of the executants of the sale deed. It referred only to the agreement with the 'insolvent, second party', which, in our opinion could only be the one entered into on 19-11-1963 between the plaintiff and the defendant before adjudication.
15. Novation under Section 62 of the Contract Act requires a clear plea, issue and evidence. Such a question cannot be raised or accepted under Section 100, CPC for the first time in second appeal. There was no such issue in the Courts below and the defendant's evidence was contrary to such a theory.
16. The High Court, in our view, also erred in thinking that the plaintiff committed breach of the agreement dated 19-11-1963 covered by the joint application when the said aspect covered by Issue 2 was not pressed in the trial Court. Further, the permission for sale dated 22-11-1963 granted by the Court was in favour of the 'Interim Receiver' and, therefore, the debtor could not have executed any sale deed. (We are not on the question whether the Insolvency Court could have asked the Interim Receiver to sell the Property.) The defendant admitted in his evidence that after 19-11-1963, he did not issue any notice to the plaintiff to execute a sale deed nor did he move the Insolvency Court to direct the debtor to execute the sale deed.
17. For the above reasons, we hold that the High Court in second appeal exceeded its jurisdiction under Section 100, CPC in giving a finding on an issue which was not pressed in the trial Court. So far as the finding as to a new contract is concerned, there was no issue or evidence. The evidence was to the contrary. We accordingly set aside these findings. Point 1 is, therefore, held in favour of the plaintiff and against the defendant.'
26. To similar effect are the decisions in cases of Satya Gupta (Smt.) alias Madhu Gupta v. Brijesh Kumar, (1998) 6 SCC 423; Sheel Chand v. Prakash Chand, (1998) 6 SCC 683 : (AIR 1998 SC 3063) and Ram Prasad Rajak v. Nand Kumar & Bros., (1998) 6 SCC 748 : (AIR 1998 SC 2730).
27. Again while dealing with the scope of Section 100, CPC after its amendment in the year 1976 in Ellangallur v. Gopalan, (2000) 2 SCC 11 : (AIR 2000 SC 533), it was held as under at page 534 of AIR :
'4. The learned counsel for the respondents submitted that the decision of the Kerala High Court in C.P. Madhavan Nair case does not lay down the correct law and also does not take notice of a Full Bench decision by the High Court of Punjab and Haryana in Ganpat v. Ram Devi, (AIR 1978 Punj & Har 137), taking the view that in spite of amendment in Section 100, CPC, the local law containing a provision inconsistent with Section 100, CPC shall continue to remain in operation.
5. In our opinion, the plea which is sought to be raised on behalf of the respondents before us was not raised before the High Court and, therefore, it will be appropriate if the matter is remitted back to the High Court leaving it open to the parties to raise their respective contentions before the High Court and the High Court forming and expressing its opinion on the effect of amendment in Section 100, CPC introduced by the Code of Civil Procedure (Amendment) Act, 1976 (104 of 1976) on the pre-casting Section 100 (1) (d) as applicable in the State of Kerala in view of local amendment.'
28. In Thimmaiah v. Ningamma, (2000) 7 SCC 409 : (AIR 2000 SC 3529 (2)) while dealing with scope of Section 100, CPC it was held as under at Pages 3532-3533 of AIR:
'15. We have already noted the findings of the trial Court as well as the first appellate Court on the question of consent. These observations clearly show that there was some evidence in support of the findings of the lower Courts. In the circumstances, the High Court was not entitled to re-assess the evidence and arrive at a different conclusion. Besides, the onus was on the respondents to prove the fact of Appellant 1's consent. When Items 3 to 6 were being claimed by the respondents to be the self-acquired property of Hiri, it could hardly be contended in the same breath that Appellant 1 had consented to the gift of Items 3 to 6 on the basis that it was coparcenary property and Appellant 1 the only other coparcener.
16. The High Court also erred in its view on the effect of consent on a gift which may otherwise be void. This Court in Ammathayee v. Kumaresan summarised the Hindu law on the question of gifts of ancestral properties in the following words :
'Hindu law on the question of gifts of ancestral property is well settled. So far as moveable ancestral property is concerned, a gift out of affection may be made to a wife, to a daughter and even to a son, provided the gift is within reasonable limits. A gift for example of the whole or almost the whole of the ancestral moveable property cannot be upheld as a gift through affection : (see Mulla's Hindu Law, 13th Edn., P. 252, Para 225). But so far as immovable ancestral property is concerned, the power of gift is much more circumscribed than in the case of movable ancestral property. A Hindu father or any other managing member has power to make a gift of ancestral immovable property within reasonable limits for 'pious purposes' : (see-Mulla's Hindu Law, 13th Edn. Para 226, P. 252). Now what is generally understood by 'pious purposes' is gift for charitable and/or religious purposes. But this Court has extended the meaning of 'pious purposes' to cases where a Hindu father makes a gift within reasonable limits of immovable ancestral property to his daughter in fulfilment of an antenuptial promise made on the occasion of the settlement of the terms of her marriage, and the same can also be done by the mother in case the father is dead : (See Kamla Devi v. Bachulal Gupta, AIR 1957 SC 434.17. The karta is competent or has the power to dispose of coparcenary property only if (a) the disposition is of a reasonable portion of the coparcenary property, and (b) the disposition is for a recognised 'pious purpose'. The High Court has not come to any conclusion as to whether the gift of Items 3 to 6 by Hiri to Respondent No. 2 was within reasonable limits or in fulfilment of an antenuptial promise made on the occasion of the settlement of the terms of Respondent 2's marriage. It must be taken, therefore, that the findings of the lower Courts on both counts were accepted. That being so, Hiri could not have donated Items 3 to 6 to Respondent 2 and the deed of gift dated 9-6-1971 was impermissible under. Hindu Law. The question is -- could such an alienation be made with the consent of Appellant 1?'
29. Keeping in view the evidence on the file of this case it cannot be said that the findings regarding the documents having been proved in accordance with law can be said to be either perverse or based on no evidence so as to call for interference in this appeal. Unless such a situation is there, this Court would not interfere. While setting aside the judgment in case Hamida v. Md. Kahlil, AIR 2001 SC 2282 it was held as under at page 2283 :
'6. The High Court has upset the finding of fact recorded by the first appellate Court, taking a different view merely on re-appreciation of evidence in the absence of valid and acceptable reasons to say that the findings recorded by the first appellate Court could not be sustained either they being perverse or unreasonable or could not be supported by any evidence. The High Court neither framed a substantial question of law nor any such question is indicated in the impugned judgment as required under Section 100 of the Code of Civil Procedure. The approach of the High Court, in our view, is clearly and manifestly erroneous and unsustainable in law. Para 10 of the impugned judgment reads :--
'The appellate Court although has decided the issue of personal necessity but from the judgment it appears that the appellate Court has not decided this issue in its correct perspective. Since the trial Court has not recorded any finding on the issue of personal necessity, the finding recorded by the appellate Court cannot be said to a concurrent finding of fact. I am, therefore, of the definite view that in such circumstance, this Court can reappreciate the evidence and scrutinize the findings recorded by the appellate Court under Section 100 CPC when admittedly this issue was not decided by the trial Court.
The sons of the plaintiff for whose requirement the plaintiff sought eviction, have not been examined. The nephew of the plaintiff was examined as a witness who supported the case of the plaintiff. The plaintiff has also not led any evidence to the effect that the house property where the plaintiff resides, is not sufficient for their own use and occupation. There is also no evidence to the effect that suitable alternative accommodation is not available to the plaintiff for meeting the requirement. I am, therefore of the view that the finding recorded by the appellate Court on the issue of personal necessity cannot be sustained in law for want of sufficient evidence.'
As can be seen from the para extracted above, the High Court thought that it could re-appreciate the evidence and scrutinize the findings recorded by the first appellate Court under Section 100 CPC. This approach is plainly erroneous and against law. The High Court was also wrong in saying that the plaintiff did not lead sufficient evidence to establish his bona fide requirement. As observed by the first appellate Court and noted above already, there is evidence of the plaintiff, his nephew and the neighbour. The finding of fact recorded by the first appellate Court based on evidence could not be interfered with by the High Court, that too in the absence of any substantial question of law that arose for consideration between the parties.'
30. Applying the tests laid down by the Supreme Court in the above cases which have been noted to illustrate the consistent view of the Apex Court, it is clear that there is no substance in this appeal as also the questions of law on which it was admitted having been answered against defendants Nos. 1 and 2, this second appeal is dismissed. Defendants 1 and 2-appellants shall pay the costs to the plaintiff in all the three Courts.