Calcutta High Court (Appellete Side)
Md. Salim Rahaman & Ors vs Smt. Monorama Mondal on 2 March, 2012
Author: Tapan Kumar Dutt
Bench: Tapan Kumar Dutt
1
IN THE HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
Present :
The Hon'ble Justice : Tapan Kumar Dutt
S.A. 569 of 1981
( C.A.N. 7011 of 2000 )
Md. Salim Rahaman & Ors.
... Appellants
-vs-
Smt. Monorama Mondal
... Respondent
For the Appellants : Mr. Subrata Ch. Pelle,
Mr. Abu Zafar M. S. Alam,
Mr. Aloke Chatterjee,
Mr. Utpal Basu Mallik.
For the Respondent : Mr. Amal Krishna Saha,
Ms. Sanchayita De.
Heard on : 01.03.2012 and 02.03.2012
Judgement on : 02.03.2012
Tapan Kumar Dutt, J. :
Today the learned Advocate for the respondent has completed his submissions and thereafter the learned Advocate for the appellants has also made his submissions in reply.
Hearing has been concluded.
The Court now delivers the following judgement :
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The predecessor-in-interest of the present plaintiffs-appellants namely, Mussamat Aklimannessa Bibi filed a suit for specific performance of contract against the defendant-respondent, Smt. Monorama Mondal being Title Suit No. 74 of 1976 which was placed before the learned 1st Court of Munsif at Basirhat and the learned Trial Court after a contested hearing by judgement and decree dated 29.11.1978 decreed the said suit in preliminary form and directed the defendant to execute the Kobala concerned.
Challenging such decree the defendant filed Title Appeal No. 88 of 1979 which was placed before the learned 14th Additional District Judge, 24-Parganas and the learned Lower Appellate Court by judgement and decree dated 11.6.1980 allowed the said Title Appeal and dismissed the Title Suit concerned. Challenging the impugned judgement and decree passed by the learned Lower Appellate Court, the plaintiff filed the instant appeal but on the death of the plaintiff the present plaintiffs-appellants have been substituted in place and stead of original plaintiff-appellant.
The facts of the case, briefly, are as follows :
On 22.1.1971 three deeds and/or agreements were executed. One of such documents was a registered sale deed by which the original plaintiff transferred the suit property in favour of the defendant for a consideration of Rs.4,000/-. The other deed was a deed of ekrarnama executed by the defendant in favour of the plaintiff and it was agreed between the parties that the defendant shall re- convey the suit property in favour of the plaintiff if the plaintiff repays the aforesaid consideration money within a stipulated period of time. The other 3 document which has been described as an agreement was executed by the plaintiff in which the plaintiff stated that for the purpose of certain pre-emption proceedings she needed money and thus she sold the suit property in favour of the defendant for a consideration and that she was likely to become the owner of certain properties (described in 'Ka' schedule to the said agreement) and a promise was made by the plaintiff that on becoming the owner of the said properties through the pre-emption proceedings she would sell the said properties (i.e. 'Ka' schedule to the agreement) to the defendant and the defendant would in such circumstances re-convey the suit properties to the plaintiff. It was also mentioned by the plaintiff in the said agreement that in the event the plaintiff becomes unable to sell the aforesaid 'Ka' schedule properties (to the agreement), then in that case the defendant would not be under any obligation to re-convey the suit properties in the plaintiff's favour. The said agreement has been marked as Exhibit - 'E'. It seems from the discussions made by the learned Trial Court that an argument was advanced on behalf of the plaintiff before the learned Trial Court that it was a case of contingent contract and reference was made to Sections 31 and 35 of the Indian Contract Act, 1972. It also appears from the judgement of the learned Trial Court that the defendant had argued that Section 62 of the Contract Act applies and the ekrarnama was not required to be performed since the said Ext. 'E' came into existence i.e. the agreement. However, the learned Trial Court came to the conclusion that Section 62 and Section 56 of the Contract Act will not apply in the instant case and the learned Trial Court came to the conclusion that since D.W. 1 has stated in 4 evidence that the said witness cannot say what was written in the papers, the said learned Trial Court could not agree with the submissions made on behalf of the said defendant. The learned Trial Court came to the finding that it was a case of contingent contract as there was some event collateral to such contract i.e. the pre-emption case. On the basis of such findings the learned Trial Court decreed the said suit in preliminary form as already indicated above.
The learned Lower Appellant Court found from the record that the plaintiff was not a party at all in the pre-emption proceedings which the plaintiff had mentioned in the said agreement (Ext. E) and the learned Lower Appellate Court raised a question as to how could, in such circumstances, the plaintiff transfer the 'Ka' schedule property to the agreement (Ext. E) in favour of the defendant. The learned Lower Appellate Court found that a certain Matiar Rahaman Dhali and his brothers were the applicants in the pre-emption proceedings and they got some properties by way of the pre-emption proceedings. The learned Lower Appellate Court was of the view that the contract in question could not be specifically performed and as such there was no merit in the suit.
The learned Advocate appearing on behalf of the plaintiffs-appellants submitted before this Court that the parties to the suit were mistaken as regards the identity of the property which the plaintiff was expected to become the owner of on conclusion of the pre-emption proceedings because it will appear from the records that the properties described in schedule 'Ka' of the said agreement (Ext. E) are not the properties which have been described in the pre-emption 5 proceedings and, therefore, the agreement being Ext. E is void as both the parties were under a mistake as to a matter of fact essential to the agreement.
The said learned Advocate further submitted that it will appear from the records that the plaintiff herself did not file any pre-emption case at all in respect of the properties described in schedule 'Ka' to the said agreement (Ext. 'E') and, therefore, the parties were also mutually mistaken with regard to a matter of fact essential to the agreement and thus according to him Section 20 and Section 36 of the Indian Contract Act, 1872 apply. Section 36 of the said Act of 1872 stipulates that contingent agreements to do or not to do anything, if an impossible event happens, are void, whether the impossibility of the event is known or not to the parties to the agreement at the time when it is made. The said learned Advocate also referred to Section 56 of the said Act of 1872 which stipulates inter alia that an agreement to do an act impossible in itself is void. The said learned Advocate submitted that novation of contract does not arise since the agreement being Ext. 'E' is void. He has further submitted that the deed of conveyance and ekrarnama should be treated as one transaction and the Ext. 'E' should be treated as void document. According to him, the ekrarnama having been executed by the defendant alone is quite a valid one and there is no impediment in the vendor alone signing such deed of ekrarnama. The said learned Advocate submitted that since the plaintiff could not have sold the 'Ka' schedule property to the agreement (Ext. 'E') under any circumstances to the defendant, the said agreement (Ext. 'E') has to be declared as void agreement. 6
The learned Advocate for the plaintiffs-appellants referred to a decision reported at AIR 1998 Supreme Court 1400 in support of his contention that unilateral mistake is outside the scope of Section 20 of the Contract Act and the mistake has to be a mutual one relating to a matter of fact essential to the agreement.
He has also referred to paragraph 32 of the said reports wherein the Hon'ble Court has been pleased to observe inter alia that one of the essential elements which go to constitute a free consent is that a thing is understood in the same sense by a party as is understood by the other party. The Hon'ble Court was further pleased to observe that it may often be that the parties may realize, after having entered into the agreement or after having signed the contract, that one of the matters which was essential to the agreement, was not understood by them in the same sense and that both of them were carrying totally different impressions of that matter at the time of entering into the agreement or executing the document and such realization would have the effect of invalidating the agreement under Section 20 of the Act.
The said learned Advocate cited another decision reported at AIR 1963 Calcutta 325 in support of his contention that the deed of conveyance and the deed of ekrarnama formed really part of one and the same transaction.
The said learned Advocate cited another decision reported at AIR 2009 Supreme Court 1527 in support of his contention that even though the ekrarnama was signed by only the defendant, it can be treated to be a valid document as it has been observed in the said reports that even an agreement of 7 sale, if signed by the vendor alone and delivered to the purchaser, and accepted by the purchaser, can be considered to be a valid contract.
It appears that the ekrarnama has been signed by the defendant alone and the agreement (Ext. 'E') has been signed by the plaintiff alone. There cannot be any dispute with regard to the proposition of law laid down in the said reports but the question is as to whether or not the said report can be of any assistance to the plaintiff in the facts and circumstances of the instant case.
The learned Advocate appearing on behalf of the defendant-respondent submitted that it will be clear from a perusal of the materials on record that the plaintiff came up with an absolutely false case and the plaintiff knew from the very beginning she did not have any right, title and interest, and was never likely to have any right, title and interest, in the said properties described in the 'Ka' schedule to the agreement (Ext. 'E'). According to the said learned Advocate, the plaintiff totally misled the defendant in the transaction and came to the Court with unclean hands. The said learned Advocate submitted that all the three documents which were executed on a single day i.e. 22.1.1971 are part of single transaction, subject, of course, to the question as to whether or not the deed of re-conveyance was at all a valid contract between the parties. The said learned Advocate submitted that the plaintiff misled the defendant to think that the plaintiff was very likely to become the owner in respect of the 'Ka' schedule properties to the agreement (Ext. 'E') after the conclusion of the pre-emption proceedings and he laid emphasis on the stipulation in the agreement (Ext. 'E') that in the event the plaintiff fails to convey the said 'Ka' schedule properties to 8 the agreement (Ext. 'E') to the defendant, the defendant would be under no obligation to re-convey the suit properties in favour of the plaintiff. He referred to Section 56 of the Contract Act wherein it has been stipulated inter alia that where one person has promised to so something which he knew, or, with reasonable diligence, might have known, and which the promisee did not know to be impossible or unlawful, such promisor must make compensation to such promisee for any loss which such promisee sustains through the non- performance of the promise. The said learned Advocate submitted that the plaintiff was all along aware of the fact that it would never be possible for her to transfer the 'Ka' schedule property to the agreement (Ext. 'E') in favour of the defendant as she herself has been fully aware of the fact that she did not file any pre-emption case with regard to the said properties and on the other hand she has stated in the said agreement (Ext. 'E') that she sold the suit properties to the defendant to obtain money for the purpose of some pre-emption proceedings (to which she was not a party).
The learned Advocate appearing on behalf of the plaintiffs-appellants submitted in reply, by referring to Section 3 of the Transfer of Property Act, that "a person is said to have notice" of a fact when he actually knows that fact, or when, but for wilful abstention from an enquiry or search which he ought to have made, or gross negligence, he would have known it. He also submitted that the expression "good faith" has been defined in Section 2 of the Limitation Act where it has been provided that nothing shall be deemed to be done in good faith which is not done with due care and attention. He has also referred to Black's Law 9 Dictionary for the meaning of the word "caveat emptor" and has relied upon the following paragraph " "caveat emptor" is the ordinary rule in contract. A vendor is under no duty to communicate the existence even of latent defects in his wares unless by act or implication he represents such defects not to exist".
Having heard the learned Advocates for the respective parties and having considered the materials on record, it appears to this Court that a glaring fact emerges in the present case. The fact is that the plaintiff at the material times was aware of the fact that she was never likely to become the owner of the 'Ka' schedule properties to the agreement (Ext. 'E'). The argument made by the learned Advocate for the plaintiffs-appellants that the mistake was a mutual one is difficult to accept. The plaintiff by executing the said agreement (Ext. 'E') tried to make the defendant believe certain facts which the plaintiff knew were not correct. Whether the defendant ought to have exercised more care and caution while dealing with the plaintiff is a different matter. Such question could have assumed importance in the event the defendant had to bring an action against the plaintiff but in the suit the relief has been claimed by the plaintiff and it was imperative that the plaintiff came to court with clean hands. The learned Advocate for the defendant clearly submitted that even the properties described in the said 'Ka' schedule to the agreement (Ext. 'E') were not the same as those described in the pre-emption proceedings and, therefore, the plaintiff was nowhere in so far as the 'Ka' schedule properties are concerned. The records do not reveal that there was any possibility for the plaintiff to become the owner of such properties. The stand taken by the plaintiffs-appellants, as submitted by 10 the learned Advocate for the plaintiffs-appellants, that the agreement (Ext. 'E') being void the Court should grant a decree for specific performance directing the defendant to execute a deed of re-conveyance in favour of the plaintiff on the basis of the ekrarnama is wholly unacceptable. To grant such a decree would mean that the plaintiff is allowed to reap a benefit out of her own wrong. The learned Advocate for the plaintiffs-appellants clearly submitted that the said agreement (Ext. 'E') is void. The consequence of such stand being taken by the plaintiffs-appellants is that the defendant would be under no obligation to re- convey the property on the basis of the ekrarnama. The attempt made by the plaintiffs-appellants to take the agreement (Ext. 'E') out of the pale of transaction is not a bonafide one. The ekrarnama cannot be read dehors the agreement (Ext. 'E') as the said two documents were inter-related and inter-connected.
This Court is of the view that all the three documents comprised one single transaction and it is not possible for the plaintiff to obtain a decree by taking the stand that the agreement (Ext. 'E') is a void document. It cannot be said in the facts and circumstances of the case that the plaintiff was ready and willing to perform her contract for the simple reason that she was not at all entitled to transfer the 'Ka' schedule property to the agreement (Ext. 'E') in favour of the defendant at any point of time. The stand taken by the plaintiffs-appellants that the agreement (Ext. 'E') is void would necessarily mean that the suit fails since the said agreement (Ext. 'E') was a part of one single transaction and there is no valid contract for re-conveyance which can be enforced in a court of law. There cannot be any dispute with regard to the legal proposition laid down in the 11 aforesaid reported decisions but the said reported decisions cannot be of any assistance to the plaintiffs in the facts and circumstances of the present case, as already discussed above.
In view of the discussions made above, this Court does not find any merit in the instant second appeal which is dismissed.
There will be, however, no order as to costs.
It appears that there is an application pending filed by the defendant- respondent for taking note of subsequent events but the statement made in the application has been denied by the plaintiffs-appellants and in view of the dismissal of the second appeal itself it is not necessary for this Court to pass any further order in the application.
The application is also disposed of.
After the aforesaid judgement is delivered, the learned Advocate appearing on behalf of the plaintiffs-appellants submits that the original plaintiff had deposited Rs. 4,000/- before the learned Trial Court after the preliminary decree was passed by the learned Trial Court and since the second appeal has been dismissed, the plaintiffs-appellants should be allowed to withdraw the said sum of Rs. 4,000/- which has been deposited by the original plaintiff on 26.12.1978. He has referred to the judgement of the learned Lower Appellate Court in this regard.
The learned Advocate appearing on behalf of the defendant-respondent submits that the defendant-respondent has no objection if the said deposit of Rs. 12
4,000/- is withdrawn by the plaintiffs-appellants in view of the dismissal of the second appeal itself.
In such circumstances, the plaintiffs-appellants may file an appropriate application before the learned Trial Court and the learned Trial Court shall pass an appropriate order taking into consideration the fact that the present second appeal filed by the plaintiffs-appellants has been dismissed.
Urgent certified xerox copy of this judgement, if applied for, shall be given to the parties as expeditiously as possible on compliance of all necessary formalities.
( Tapan Kumar Dutt, J. ) AKD