Archana Bhutani v. Manju Jain

PRADEEP NANDRAJOG, J.

J.R. MIDHA, J. November 04, 2008 mm

* IN THE HIGH COURT OF DELHI Judgment reserved on : September 30, 2008 % Judgment delivered on : November 04, 2008 + RFA 25/2004 ARCHANA BHUTANI ..... Appellant Through: Mr. Sudip Kumar Shrotria, Advocate VERSUS MANJU JAIN ..... Respondent Through: Nemo CORAM: Hon'ble Mr.Justice Pradeep Nandrajog Hon'ble Mr.Justice J.R. Midha 1. Whether reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporter or not? 3. Whether judgment should be reported in Digest? : PRADEEP NANDRAJOG, J. 1. On 26.8.1998 an agreement to sell, Ex.PW-1/2, was executed by Ms.Archana Bhutani, the appellant, in favour of Ms.Manju Jain, the respondent, pertaining to a portion on the ground floor together with mezzanine thereon forming part of plot No.40, Block No.7, G.B.Road, Delhi – 110006. The sale consideration recorded was Rs.3,00,000/- (Rupees Three Lacs Only). The agreement records that Ms.Archana Bhutani had received Rs.1,00,000/- (Rupees One Lac Only) by means of a cheque and that the balance sum of Rs.2,00,000/- (Rupees Two Lacs Only) was payable after Ms.Archana Bhutani obtained a certificate of probate in respect of a will dated 13.4.1990 stated to have been executed by her father bequeathing the subject property to her and based thereon the property being mutated in her name in the municipal records. 2. On 9.2.2000, vide Ex.PW-1/5, proved to be served upon Ms.Archana Bhutani vide A.D.Card Ex.PWQ-1/7 and postal receipt in respect thereof being Ex.PW-1/6, Ms.Manju Jain called upon Ms.Archana Bhutani to obtain a certificate of probate of the will executed by her father and after completing the formalities of having the property mutated in her name, to execute the sale deed. 3. Since Ms.Archana Bhutani did not execute the sale deed, Ms.Manju Jain filed the suit in question for specific performance alleging that she was always ready and willing to pay the balance sale consideration in sum of Rs.2,00,000/- (Rupees Two Lacs Only) provided Ms.Manju Jain obtained the certificate of probate and have the property mutated in her name in the municipal records. Ms.Archana Bhutani responded to the plaint. She admitted having executed the agreement to sell, Ex.PW-1/2, but stated that the same was got prepared by Ms.Manju Jain and she merely signed the same. She pleaded that the sale consideration agreed to was Rs.30,00,000/- (Rupees Thirty Lacs Only) and that it was wrongly mentioned in the agreement to sell that the sale price was Rs.3,00,000/- (Rupees Three Lacs Only). Thus, she denied an obligation to sell the subject property for Rs.3,00,000/- (Rupees Three Lacs Only). She challenged the legality of the agreement to sell on the plea that the same required compulsory registration. She also challenged the same on the plea that she had yet to perfect her title to the property inasmuch as she had yet to be granted the certificate of probate and hence pleaded her disability to sell the property by entering into an agreement to sell. 4. On the pleadings of the parties following 3 issues were settled on 21.9.2002:- "(i) Whether the agreement dated 26.8.1998 is non-est in the eyes of law as alleged in para 4 and 8 of the preliminary objections of the written statement? OPD (ii) Whether the plaintiff is entitled to the relief of specific performance? OPP (iii) Whether the plaintiff is entitled for permanent injunction? OPP (iv) Relief." 5. At the trial, Ms.Manju Jain successfully proved that she was always ready and willing to pay the balance sale consideration and acquire title to the suit property and that Ms.Archana Bhutani was in default by not obtaining the certificate of probate and getting mutation effected in her name, the twin condition precedents for the sale to materialize. Ms.Archana Bhutani failed to sustain the three pleas raised by her challenging the agreement to sell with the result the suit filed by Ms.Manju Jain stood decreed vide judgment and decree dated 7.8.2003. 6. Needless to state, if Ms.Manju Jain proved that