Patna High Court
Mt. Bibi Moliman Nissa And Anr. vs Tafazul Karim on 3 October, 1958
Equivalent citations: AIR1959PAT132, AIR 1959 PATNA 132
JUDGMENT S.C. Prasad, J.
1. This is an appeal by the defendants against the judgment of the 1st Additional Judicial Commissioner of Chotanagpur reversing a decision of the Additional Subordinate Judge of the same place.
2. The suit was for specific performance of a contract in respect of some property in the town of Ranchi. It was alleged that Tafazul Karim had contracted with the plaintiff on the 23rd June, 1940 to sell 16 annas interest in a house for Rs. 6,000/- representing that the house belonged to him and his wife. He took Rs. 100/- as earnest money. A period of three years was fixed for the performance of the contract.
Later on this contract was cancelled and subsequently on the 5th November, 1941, there was a fresh oral contract between the same parties under which it was agreed between them that the plaintiff would first take sale deeds from Musammat Latifan, Bashir, Sharfuddin and the Municipality of Ranchi in respect of their shares in the house in dispute and thereafter the plaintiff would take sale deed from the defendants for Rs. 1,750/-, which was the price fixed for their share in the house, namely, 4 annas 8 pies.
On the 9th November, 1941, 14th November, 1941 and 26th November, 1941 the plaintiff took three sale-deeds from Musammat Latifan, Bashir and Sharfuddfn, but so far as the share of the Ranchi Municipality was concerned, he took the sale deed on the 22nd February, 1947. Thereafter he asked the defendants to execute the sale deed in respect of their share but they did not carry out their part of the contract and then the plaintiff filed this suit on the 2nd February, 1949.
3. The main defence relevant for the purpose of this appeal was that the defendants denied the execution of the verbal contract and resisted the claim of the specific performance on the ground that there had been inordinate delay, that the agreement was uncertain and that there was no mutuality in respect of this contract and, therefore, it was not specifically enforceable against the defendants.
4. The trial Court upheld the case of the plaintiff that there had been an oral agreement, but it refused to give a decree for specific performance of contract because of the change of the position of the parties due to rise in prices on account of the inordinate delay by the plaintiff, but it granted a decree for the refund of advances taken by the defendants from the plaintiff.
5. Two appeals were filed against the judgment, one by the plaintiff and the other by the defendants. The appellate Court allowed both the appeals. No cross appeal has been filed here by the defendants. The plaintiff was also allowed a decree for specific performance of contract.
6. The only point which was urged before me by the learned counsel for the appellants was that there was no mutuality of contract, because in view of the terms thereof the defendants could not have enforced the contract on the date it had come into existence nor could the plaintiff have claimed the performance of the contract and, therefore, the plaintiff was not entitled to claim specific performance of this contract.
The learned Counsel urged that he had not been able to get a direct ruling of any High Court but it was established that this doctrine of mutuality was applicable in India and had been accepted in some cases. He relied on the cases of Zeebunnissa Begum v. Mrs. H.B. Danagher, AIR 1936 Mad 564 and Jatadhari Prasad v. Kishun Lal AIR 1950 Pat 535.
7. The rule of the English Law on the point is that a contract can be specifically enforced only if, as a general rule, there is mutuality between the parties thereto. In other words, it should be such as it might have been enforced by either of the parties against the other at the time it came into existence but there are exceptions to this rule, one of which is that where the contract is conditional, the mutuality must be at the time when the condition is fulfilled. In my view, this is a sound rule grounded in common sense and natural justice and should be accepted as such.
8. In this particular case, however, as a matter of fact, the contract was conditional, the condition being that the plaintiff must take kobalas from four persons, namely, Latifan, Bashir Sharfuddin and the Ranchi Municipality and thereafter he was to be entitled to take a sale-deed from the defendants. Therefore, the proper time for the existence of the mutuality was the time when the condition was fulfiled, namely, the 22nd February, 1947, when the 4th kobala was taken from the Ranchi Municipality by the plaintiff. There was no question that in that date there was mutuality between the parties because each party could then have claimed performance of the contract against the other. I do not, therefore, find any substance in the argument of the learned counsel for the appellants in this connection.
9. He also urged that it would be very hard if the contract were to be enforced now because the plaintiff had made considerable delay in taking the kobala from the Ranchi Municipality, during which period, i.e. from 1941 to 1947, the prices of the immovable property had gone very high and if the defendants were compelled now to sell the house to the plaintiff, they would suffer a great loss for no fault of theirs.
Sir Sultan Ahmad, however, for the respondents relied on the case of Somkaralinga Nadar v. P.T. S. Ratnaswami Nadar reported in AIR 1952 Mad 389 and upon the finding of the court below that in this case the delay in taking the sale deed from the Ranchi Municipality was not due to the negligence on the part of the plaintiff but, in fact, the delay was due to the Municipality itself.
I think that Sir Sultan Ahmad is correct in this contention. Mere delay will not excuse the performance of specific contract unless there were circumstances to show that the plaintiff claiming specific performance was responsible for it or had abandoned his right or on account of the delay there had been such a change of circumstances as would prejudice the defendants. I do not think in the present case there had been such a change of circumstances which can reasonably lead to any of these results against the defendants.
The question of hardship on account of the subsequent rise in price is not material because this position must be judged as on the date of the transaction. The subsequent rise in priced was not taken in the above Madras case to be a relevant ground for refusing the plaintiffs prayer for specific performance of contract of sale. I think this view is correct. I see no reason to interfere. The appeal is dismissed with costs.