DEOKABAI Vs. UTTAM

JUDGEMENT

(1.) THIS appeal is directed against the judgment and decree dated July 29,1986 by a Division Bench of the Nagpur Bench of the Bombay High Court in Letters Patent Appeal No. 69 of 1983 arising in First Appeal No. 125 of 1982. It appears that on Januray 19, 1979, the day following the day of the execution of the agreement, she entered into another agreement for sale pertaining to the other portion of the house with one Jayanti Lal Shah and later executed a sale deed, registered in his favour. So far as the present agreement for sale was concerned, she took the steps of applying for necessary permission to the competent authority, Nagpur on March 3, 1979. The requisite permission for selling the house was granted to her in the month of May 1979. On July 9,1979, a notice was sent by the respondent to the appellant requiring her to get the sale deed executed and registered in his favour on July 9,1979 and to remain present in the office of Registrar at 11 a.m. Since the appellant failed to turn up at the appointed time and place and the respondent allegedly had taken all steps necessary towards completion of the sale deed, like purchase of stamp papers and buying of drafts of money, he filed a suit for specific performance on July 26, 1979. The respondent firstly prayed for a decree for specific performance and possession of the property in dispute, but in the alternative claimed return of the earnest money of Rs. 5,000 with interest in case specific performance was not allowed.

(2.) A Before the trial Court, the important point which rose for consideration was whether the term afore -translated of obtaining a suitable house was a condition on the fulfillment of which lay the contingency of parting the property by way of sale. The trial Court took the view that the respondent was entitled to relief of specific performance. First Appeal No. 125 of 1982 preferred by the appellant before the High Court was allowed by a learned Single Judge on October 26, 1983 dismissing the claim for specific performance, but decreeing the suit alternatively for the refund of Rs. 5,000 along with interest at the rate of 8% per annum. Being aggrieved, the respondent filed letters patent appeal before a Division Bench of the High Court which resulted in decreeing the suit for specific performance. The ground on which the learned Single Judge had allowed the first appeal of the appellant were essentially compassionate, such as the appellant being a widow, her 45 years old son having died in the recent past and her living with her daughter and grandchildren in the house in question which was her sole property. The learned Single Judge did not agree with the appellant that the afore -extracted term of the contract bore a contingency. The Letters Pa tent Bench upset the judgment and decree of the learned Single Judge based as it was on compassionate and not on legal grounds, but otherwise affirmed the view of the learned Single Judge that the term afore -referred to did not contain any condition requiring fulfillment before which the appellant was required to execute the sale. The appeal before us is confined to the interpretation of the said term. It is well settled that the terms of a document, like the present one, have to be read as a whole. The document as translated, though wrongly at certain places, figures atpp. 45 to 47 of the paper book Takingouta term in isolation and giving it a meaning tom from the context may tend to lead to a wrong interpretation causing injustice. The term afore -extracted is followed by a term which may lend some colour to the construction. That is (as translated by us from Hindi):

(3.) ONE is that there could be any complication in getting the sale deed of the house registered in the name of the vendee. The other is that there could be a difficulty in getting the sale deed of the house registered in the name of vendee. The third one conceived is that it could become legally impossible to get the sale deed registered. The difficulty in getting the sale deed of the house registered was ex -facie clear as the appellant was asked to execute the sale deed at a time when she had not obtained another suitable accommodation, the respondent overlooking her need to get another suitable house for accommodating her and her family members. Such an important term, specifically included, was not mere roughage to swell the document. It had a positive safeguarding meaning. These were not empty words. The conduct of the respondent in these circumstances becomes material to be examined before his claim is accepted.