Patna High Court
Jatadhari Prasad And Ors. vs Kishun Lal Daruka And Ors. on 27 July, 1950
Equivalent citations: AIR1950PAT535, AIR 1950 PATNA 535
JUDGMENT Jha, C.J.
1. This is an appeal by the plaintiffs from a decree of the Subordinate Judge at Darbhanga, dated 24th May 1946.
2. The appeal arises out of a suit for specific performance of an agreement, or, in the alternative, for recovery of possession of the property in suit on the ground that the court sale of the property held on 4th March 1940, is vitiated by fraud.
3. Originally one joint family firm, Pali Ram Parma Nand, was impleaded as defendant first party, and one Ajodhya Prasad along with others was impleaded as defendant second party. On the death of Paliram on 22nd April 1945 (during the pendency of the suit) his minor son, Kiasen Lal Daruka, and other members of his family were substituted in his place and were impleaded as defendants first party. Separate written statements were filed by the members of the family of Paliram, and it is common ground that Paliram's son alone is interested in the property is suit because on partition among the members of Paliram's family the property in suit was allotted to Paliram's share.
4. Paliram filed his written-statement and on his death his minor son, the present defendant 1, adopted the written-statement of his father. It may be stated here that the relief is claimed only against defendants first party and not against defendants second party and the contest is only by the present defendant 1, hereinafter to be referred to as the defendant.
5. The material facts of the case relevant to the points for consideration are these: Paliram was the karta of his joint family which owned the firm Pali Ram Parma Nand. Paliram obtained a money decree against the plaintiffs in the name of the firm on 22od December 1933, for a sum of about Rs. 15,000. Execution of the money decree was taken out, being Execution Case No. 12 of 1939, in the Court of the Additional Subordinate Judge of Darbhanga. The property in suit measuring 71 bighas and odd was attached on 21st July 1939. An objection was taken by the defendants second party on 24th July 1539, under Order 21, Rule 58, Civil P. C., in respect of a portion of the attached property, and was numbered, as Miscellaneous case No. 38 of 1939. It is now conceded that the defendants second party were really farzidars of the plaintiffs judgment-debtors. Another objection was taken by the plaintiffs judgment-debtors on 20th November 1939, under Section 13, Bihar Money-lenders Act and was numbered as Miscellaneous Case No. 59 of 1939. While the two miscellaneous cases were pending a joint petition, dated 2nd December 1939, (Ex. 2) was filed on behalf of the contesting parties in Miscellaneous case No. 88 of 1939, praying for two weeks' time on the ground that there was a talk of a compromise between the judgment-debtors and opposite parties, namely, the plaintiffs and the defendants first party in the present suit. The Court, as it appears from the order-sheet (Ex.6), adjourned the case to 9th December 1939, for hearing, and the parties were required either to file a compromise petition or come ready on the date fixed. On 7th December 1939 there was an agreement between the parties (hereinafter to be referred to as the first agreement) through the intervention of Mr. Dharnidhar (P. W. 1 examined on commission) a pleader of the Darbhanga Bar. The terms of this agreement were not, however, reduced to writing. There is difference as regards some of the terms between the plaintiffs and the defendants first party. From the evidence of Mr. Dharnidhar, who is relied upon by both parties it appears that it was settled between the parties that us. 7,500 would be paid in full satisfaction of the decretal amount and a further sum of RS. 1000 would be paid by the plaintiffs to Paliram for payment of arrears of rent in respect of the property under attachment for which three rent suits ware pending in the 1st Court of the Munsif of Darbhanga. Thus, in all, RS. 8,500 was to be paid by the plaintiffs to the defendants first party under the agreement, for which the plaintiffs were to execute a bai maiadi ksbala (a deed of conditional sale) in favour of Paliram, because the plaintiffs could not manage to pay the sum in cash. I may state here that, according to the plaintiffs' case, it was settled that if the plaintiffs paid RS. 8,500 to the defendants first party within a period of six years, the latter would execute a deed of reconveyance in favour of the plaintiffs. The case of defendant 1, however, is that the plaintiffs were to pay Rs. 8,500 in cash before 6th December 1939 (written statement 5 'ka') and he denies that the period fixed for the reconveyance was sis years, Mr. Dharnidhar in his evidence does not support this part of the defendant's case. Another term of the first agreement, according to the plaintiffs, was that the parties were to give up making pairvis in the execution case and the two miscellaneous cases and the same would be allowed to be dismissed for default. From the order-sheet (EX. 6) it appears that the plaintiffs took no steps and the two miscellaneous cases were dismissed for default on 9th December 1939, but the defendant first party proceeded with the execution.
6. The plaintiffs' case is that according to the terms of the agreement defendants first party paid to the plaintiffs Rs. 127-8-0 for purchase of stamp and, in fact, on 12th December 1939, the plaintiffs purchased the stamp through plaintiff 1 from the Treasury at Darbhanga for the execution of the deed of conditional sale, and on 17th December 1939, Shib Chandra Prasad (D. W. 1), a servant of the defendants first party, wrote the contents of the deed on the aforesaid stamp paper and the plaintiffs put their signatures thereon, and thereafter the document was handed over to the defendants first party. Registration of the document could not be completed because there was a second appeal (second Appeal No. 569 of 1939) pending in the High Court in which the title of Ajodhya Praaad, one of the defendants second party wag in dispute, and the defendants first party wanted to wait till the title of Ajodhya Prasad was finally decided by the High Court. The allegation of defendant 1 in his written statement is that the bai maiadi kebala (deed of conditional gale) was not executed by the plaintiffs and the first agreement was not given effect to because the defendants second party refused to execute the kebala, I have already stated that the defendants first party proceeded with the execution. The property in suit was put up to court-sale on 4th March 1940, and Paliram purchased it for a sum of Rs. 2000 and took delivery of possession on 24th December 1940. The plaintiffs' case is that the defendants first party committed an act of fraud in proceedings with the execution and getting the property in suit sold at court-sale. According to them, they gob information of the sale on 24th December 1940, when delivery of possession was taken, and thereupon plaintiffs 3 and 10 went to Mr. Dharnidhar and informed him of the fraud committed by the defendants first party. Mr. Dharnidhar thereupon sent for Parmanand, the younger brother of Paliram, and again through his intervention a fresh agreement was arrived at between the parties on 3rd January 1941 (hereinafter to be referred to as the second agreement). According to the second agreement, it was agreed that on payment by the plaintiffs of a sum of Rs. 8500 to the defendants first party within a period of three years the defendants first party would execute a deed of reconveyance in favour of the plaintiffs in respect of the property in suit. It was further agreed that tilt the payment of the aforesaid money the defendants first party would remain in possession and occupation of the disputed property. Defendant 1 now admits that there was a second agreement but denies that the term fixed for reconveyance was throe years. The plaintiffs' case is that according to the terms of the agreement they went in the month of June 1943, and several times thereafter, to the defendants first party with RS. 8500 and requested them to accept the money and execute a registered deed of reconveyance and relinquish possession of the properties in suit and put the plaintiffs in possession thereof, but the defendants first party declined. They have, therefore, instituted the present suit, claiming specific performance or, in the alternative, recovery of possession on the ground of fraud as already stated.
7. The learned Subordinate Judge dismissed the suit. He did not record his finding with regard to the first agreement, but with regard to the second agreement he found that it is highly improbable that Parmanand independently of Paliram'a consent would have agreed to the payment being made within three years from the date of the subsequent agreement. He also found that the story of tender as alleged by the plaintiffs is false; and lastly, he found that, defendant 1 being a minor, a decree for specific performance could not be made in favour of the plaintiffs. In view of these findings, he dismissed the suit.
8. Three questions arise for determination in this appeal : (1) Whether there were agreements as alleged by the plaintiffs ; (2) Whether specific performance can be granted in respect of the second agreement, if any; (3) Whether a suit for settling aside the auction-sale, dated 4th March 1940, in Execution case No. 12 of 1939, on the ground of fraud is maintainable, in view of Order 21, Rule 92, Civil P. C.
9. As regards the first question, there is, as already stated, no document embodying the terms of settlement arrived at between the parties. Therefore, the plaintiffs have to rely upon the oral evidence as well as the admitted circumstances and resulting probabilities in support of their case. The learned Subordinate Judge has not recorded his finding with regard to the first agreement. But, in my opinion, it is necessary to find whether there was an agreement between the parties on 7th December 1939; because the two agreements are inter-connected, and if it is found that there is ample evidence in support of the plaintiffs' story of the first agreement, the necessity for entering into the second agreement becomes highly probable. The defendant totally denied the existence of the second agreement in his written statement. At the hearing, however, it was admitted that there were two agreements, but the parties differ as to the terms. (After discussing evidence his Lordship concluded.)
10. On a careful consideration of the evidence and circumstances of the case I am satisfied that the plaintiffs have proved that there were two agreements between the parties as alleged by them, and there is ample evidence to show that the plaintiffs have succeeded in proving that on payment of Rs. 8500 at any time within three years from the date of the second agreement they are entitled to claim specific performance of the contract.
11. The next question that arises is whether there was any tender of Rs. 8500 by the plaintiffs to the defendants first party in June 1943, as alleged by them and there was refusal by the defendants to accept the same. Mr. Dharnidhar says that he advised Kesho Babu (one of the plaintiffs) to arrange money for cash payment and get the property reconveyed. He further says "I fell ill in December 1942, and Kesho Babu came to me after my illness complaining that he was ready with the money but Babu Paliram was not willing to execute a reconveyance. I express my inability to help him on account of my illness." P. W. 2 says that money was tendered to Paliram and he refused to accept it and he is supported in his evidence by P. Ws. 10 and 13 and we see no reason to disbelieve their testimony. In view of all these facts there is no reason why I should not accept the plaintiffs' evidence of tender. But once the agreements are proved the question of tender is not material at all when the plaintiffs have come to Court within three years of the second agreement.
12. Now the question is whether specific performance of the second agreement can be enforced against the present defendant 1, who is a minor son of Paliram. I have already stated that the suit was originally instituted against the joint family firm; and the minor son of Paliram, the present defendant l, was brought on the record by substitution on Paliram's death, during the pendency of the suit. Therefore, the point for consideration ia whether a decree for specific performance could be made against the joint family firm if Paliram had been alive, and secondly, whether such a decree can be made against his minor son who has been brought on the record after his death.
13. In a suit by a promises for enforcement of specific performance of a contract it is necessary that the parties should have the capacity to contract; and if the contracting parties are Hindus and the agreement is entered into by the karta or kartas of a joint Mitakshara Hindu family, it is further necessary for the plaintiff to prove either legal necessity or benefit to the estate.
14. It may be stated here that in the plaint there is no allegation of either legal necessity or benefit to the estate, nor is there any allegation in the written statement filed by Paliram, which was subsequently adopted by his minor son, the present defendant 1, after the death of Paliram, that the contract is unenforceable for want of legal necessity or benefit to the estate, nor was any issue raised on the point. But it was argued at the bar on behalf of the respondent that a decree for specific performance of the contract entered into by Paliram cannot be passed against defendant l, who is a minor, because the contract on the very face of it was adverse to his interest. This argument is founded on the observation of the learned Subordinate Judge which runs as follows :
"It has been urged that the agreement arrived at is not enforceable at law but even if it be presumed that it was capable of being enforced in that case the contract could not be enforced against defendant 1 who is a minor. It may have been one thing for Paliram, his father, who was a major, to have agreed to sacrifice some of his interest, but it is extremely doubtful if a decree for specific performance of ft contract could be passed against defendant 1, who is a minor, in respect of a contract which on the very face of it was adverse to his own interest."
I think this argument is not sustainable. It is true that the karta's power to alienate the joint family property is, under the Hindu law, a limited and qualified power. But an alienation by a karta, even if not warranted by the necessities of the family, is not void ab initio. The plaintiffs came forward with a clear casa that the property in suit belonged to them and the same had passed into the hands of the defendant by reason of a fraudulent court sale; they stated the relevant facts and simply asked for the restoration of their property by execution of a sale-deed under the terms of the compromise arrived at between the parties at the instance of Mr. Dharanidhar. The defendant in his written statement did not take the plea that the property in suit formed part of his joint family property and specific performance could not be granted for want of legal necessity or benefit to the estate. It was necessary for the defendant to allege, in the first place, that the property in suit forms part of his joint family property. If only such an allegation had been made, it would have been necessary for the plaintiff to allege legal necessity or benefit to the estate. Under Order 8, Rule 2, Civil P. C., the defendant must raise by his pleading all matters which show the suit not to be maintainable, or that the transaction is either void or voidable in point of law. If such a plea had been raised in the defence, the plaintiffs, if so advised, might have filed, with the leave of the Court, a written statement pleading legal necessity or benefit to the estate, and such written-statement might have formed part of the plaintiffs' pleading. On the pleadings as they stand the question of legal necessity or benefit to the estate did not arise. In my opinion, it must be taken to have been admitted that the agreement wag not vitiated for want of legal necessity or benefit be the estate. It is quite probable that the plea was not raised because the act of Paliram in entering into the second agreement was considered a prudent act beneficial to the estate. However, in my opinion, the learned Subordinate Judge does not seem to be right in his view that the contract on the face of it is adverse to the minor's interest. Paliram contracted to sell for Rs. 8,500, a property which he had purchases at court-sale for Rs. 2,000. This was obviously a prudent act on the part of Paliram and there was a clear benefit to the family. Besides Paliram knew that the sale had been obtained by fraud. Therefore, it wag considered by Paliram a prudent act to pub an end to the litigation and not to take the risk of the sale being set aside by an application under Order 21, Rule 90, or by some other appropriate proceedings. It may be observed that the property in suit belonged to the family of the plaintiffs. The sale was brought about by the fraudulent conduct of Paliram. The executing Court conducting the sale was not informed of the circumstances under which the plaintiffs had given up pairvi in the two miscellaneous cases, nor wag the Court informal of any of the terms of the contract. Therefore, in view of all these facts and circumstances I think it cannot be said that Paliram or his brother Parmanand, who according to the allegation in the plaint, carried on the court affairs of the family of the defendants first party, did any imprudent act in entering into either the first or the second agreement or that any of these agreements was not justified in the interest of the estate of the defendants. Therefore, the contract can be challenged only on the ground of lack of mutuality.
15. The fundamental rule of equity is that a contract will not be specifically enforced unless it is obligatory on both parties, nor unless both parties at the time it is executed have the right to resort to equity for specific enforcement of it. Therefore, a contract to be specifically enforced by the Court must, as a general rule, be mutual, that is to say, such that it might, at the time it was entered into, have been enforced by either of the parties against the other. The Specific Belief Act does not anywhere expressly repudiate the doctrine of mutuality. On the contrary, the language used in respect of the last nine illustrations of Clause (b) of Section 21, Specific Relief Act supports the position that the doctrine is part of the Indian law. The doctrine of mutuality was judicially recognized so far as India is concerned by their Lordships of the Judicial Committee in the case of Mir Sarwarjan v. Fakhruddin Mahomed, 39 Cal. 232 : (39 I. A. 1 P. C.), and since then the following propositions are firmly established:
"(1) A contract entered into by a minor being void, an agreement entered into by him either for sale or for purchase of immovable property cannot be specifically enforced either by or against him.
(2) A contract either for sale or for purchase of immovable property entered into by the guardian of a minor or his manager cannot be specifically enforced either on his behalf or against him."
16. In either case there being lack of mutuality the Court cannot order specific performance of a contract even if the transaction be beneficial to the minor.
17. In the case before us the joint family was sued. Admittedly Paliram was the karta of the joint family. The position of the karta is sui generis. He represents the family and has power as karta of making contracts, giving receipts and compromising or discharging claims ordinarily incidental to the family business: Kishan Parshad v. Harnarain Singh, 38 I. A. 45 at p. 51 : (33 ALL. 272). He can sue and be sued in a representative capacity. In the case of Sheo Shankar Ram v. Mt. Jaddo Kunwar, 41 I. A. 216 at p. 220 : (A. I. R. (1) 1914 P. C. 136), their Lordships of the Judicial Committee have held that "the managers of a joint Hindu family so effectively represent all other members of the family that the family as a whole is bound,"
While discussing the doctrine of res judicata Lord Phillimore, in the case of Lingangowda v. Rastangowda, 54 I. A. 122 at p. 125 : (A. I. R. (14) 1927 P. C. 56), observes as follows:
"It is impossible to allow each member of the family to litigate the same point over and over again, and each infant to wait till be becomes of age, and then bring an action, or bring an action by his guardian before; and in each of these cases, therefore, the Court looks to Explanation 6 of Section 11, Civil P. C., 1908, to see whether or not the leading member of the family has been acting either on behalf of minors in their interest or if they are majors, with the assent of the majors."
It was pointed out in the case of Lalchand Thakur v. Seogobind Thakur, 8 Pat. 788 : (A. I. R. (16) 1929 Pat 741), by Chatterji J. that in a suit against a joint Hindu family the karta may effectively represent the other members of the family even though he is not described as such. Recently in the case of Ramsewak v. Ramaprasad, 26 Pat. 1 : (A. I. R. (35) 1948 Pat. 215), which related to the power of a manager to refer a certain dispute to arbitration, Sinha J. has observed that it is competent to the father of a joint Hindu family in his capacity of the managing member of the family to refer to arbitration the partition of the joint family property, and the award made on such a reference, if in other respects valid, is binding on the sons and grandsons, even if some of them happen to be minors.
18. Therefore, in my view, Paliram effectively represented all the members of the family including his minor son, and the contract entered into by him as karta of the joint family could be specifically enforced against him, had he been alive. If a decree had been passed against him, it would have been binding on his minor son as well because there was no lack of mutuality. This view gets support from the observation of Rachhpal J. in the case of Mt. Dhapo v. Ram Chandra, 57 ALL. 374 at p, 379 : (A. I. R. (21) 1934 ALL. 1019) where he observes as follows:
"In the case before us, it was open to the plaintiffs to have sued Reoti alone for the specific performance of the contract as representing the joint family. If a decree had been passed it would have been binding on the other member of the joint family, the minor." (Reoti was the karta and managing member of the family consisting of himself and his minor brother).
In my opinion, there is no change in the legal position simply because the present defendant, who was not originally impleaded in the suit, was substituted for Paliram. The law is that want of mutuality to be fatal to a claim for specific performance must exist at the time the action is brought. This view gets support from a passage in the case of the Eastern Counties Railway Co. v. Hawkes, (1855) 5 H. L. C. 331 at p. 365: (24 L. J. Ch. 601) where Lord Campbell is reported to have stated the law thus :
"But I am of opinion that whereas, in considering the validity of the agreement, the proper time to regard is the time when it was entered into as to the specific performance, regard ia to he had to the state of things when the bill was filed. No authority has been cited in support o! the position, that the decision upon a bill for a specific performance is to depend upon what has happened between the filing of the bill and the day when the decree is to be pronounced; and it would be strange if the plaintiff, being entitled to what he prays for when he files his bill, could be defeated by the chicanery of the defendant in vexatioualy resisting the suit."
The same view was taken in the case of Narayana Chetty v. Muthiah Chetty, 47 Mad. 692 at p. 697: (A. I. R. (11) 1924 Mad. 680) where the law is stated by Ramesam J. as follows :
"Where a contract is by a manager on behalf of a family, and for the benefit of the family and the manager dies, it can be enforced against the survivors when they are all majors; Venkateswara Aiyar v. Raman Nambudri, 3 M. L. W. 435 : (A. I. R. (4) 1917 Mad. 358). Should it make any difference that eome of the survivors are minors, and does the case of Mir Sarwarjan v. Mahomed Fakhuruddin Mahomed, 39 Cal. 232 support such a distinction ? The matter is res integra and I am inclined to answer the above queries in the negative."
19. Therefore, in my opinion, in a suit instituted against a joint family a decree for specific performance can be passed and it would be binding on all the other members of the joint family, including a minor coparcener, if the transaction is found to be warranted by legal necessity or benefit of the estate. It has been held by a Full Bench of this Court in the ease of Hari Charan v. Kaula Rai, 2 P. L. J. 513 : (A. I. R. (4) 1917 Pat. 478 F. B.) that there is no lack of mutuality if the contract is entered into by the karta simply by reason of the face that a minor coparcener is impleaded in the action. But it has been held that the suit for specific performance cannot be decreed in she absence of proof of legal necessity or family benefit. Chamier C.J. states the law thus :
"(1) The interest of a member of a joint Hindu family in the family property is not individual property at all. The manager of such a family is not an agent of the other members nor is he a mere manager. He is much more like a trustee foe the other members.
(2) I apprehend that the decisions of their Lordships in the cases of Mahori Bibee v. Dharmo Dass Ghosh, 30 Cal. 539 : (30 I. A. 114 P. C.) and Mir Sarwarjan v. Mahomed Fakhruddin, 39 Cal. 232 : (39 I. A. 1 P. C.) do not apply to contracts made by the managing, member of a joint Hindu family for family necessities or for the benefit of the family, i.e., contracts made by the managing members which bind the minor members of the family. Such contracts can be enforced on behalf of the family by the persons who make them and I find nothing in the decisions of their Lordships which requires us to hold that such contracts cannot be enforced against the family. Contracts made not by minors but by persons who have power to make contracts on behalf of a joint family do not appear to come within those decisions. I am not prepared to dismiss this suit for specific performance on the ground that the contract lacks mutuality having been made by or on behalf of minors who are not competent to contract."
In the case of Mt. Dhapo v. Ram Chandra, 57 ALL. 374 : (A.I.R. (31) 1934 ALL. 1019), where the managing member along with his minor brother was impleaded, the Allahabad High Court followed the view taken in the case of Hari Charan Kuar v. Kaula Rai, 2 P. L. J. 513 : (A. I. R. (4) 1917 Pat. 478 F. B.). After a review of the case law on the point the Nagpur High Court has recently adopted in Ramrao Shamrao v. Suganchandra, A. I. R. (33) 1946 Nag. 139 : (I. L. R. (1946) Nag. 116) the view taken by the Full Beach of this Court in Haricharan v. Kaula Rai, 2 P. L. J. 513 : (A. I. R. (4) 1917 Pat. 478 F.B.).
20. I have already held that the second agreement was entered into by Paliram for the benefit of the estate and there was no lack of mutuality simply because his minor son was brought on the record by substitution on the death of Paliram. Therefore, the plaintiffs are entitled to a decree for specific performance against the present defendant 1.
21. It may be observed that the plaintiffs claimed an alternative relief that if for some reason a decree for specific performance of contract be not possible, then it may be adjudged that the court sale held on 4th March 1940, in Execution Case No. 12 of 1939 is entirely fraudulent, illegal, inoperative, useless and ineffective, and the defendants first party neither have nor can have any title on the basis thereof, and that the plaintiffs are entitled to get khas possession together with mesne profits. This point gives rise to the consideration of the third question raised before us, namely, where a suit for setting aside the auction sale on the ground of fraud is maintainable in view of Order 21, Rule 92, Clause (3), Civil P. C. I have already held that the plaintiffs are entitled to a decree for specific performance and in that view of the matter consideration of this question becomes unnecessary.
22. In the view that I have taken the appeal must be allowed and the judgment and decree of the Subordinate Judge set aside.
23. It is therefore ordered that upon payment into Court of the purchase money Rs. 8,500 on or before 22nd November 1960, or within such further time as the Court below, at its discretion, may allow, defendant 1 do execute and register a proper deed of conveyance of the properties in suit and do put the plaintiffs in possession thereof. The appeal is allowed accordingly with costs throughout.
Reuben, J.
24. I agree.