Patna High Court
Basruddin Khan And Anr. vs Gurudarshan Das And Ors. on 23 May, 1969
Equivalent citations: AIR1970PAT304, AIR 1970 PATNA 304
JUDGMENT M.P. Varma, J.
1. Both the appellants were defendants second party in Title Suit No. 23/2 of 1960/62, which had been brought against them as well as defendants first party by the plaintiff Gurudarshan Das, for specific performance of a contract for sale, and the learned Additional Surbordinate Judge of Sasaram has decreed the suit with costs.
2. Briefly stated, the case of the plaintiff was that the defendants first party constituted a joint Hindu family. Father of defendants 1 and 2, Sukhdeo Singh, lived at Bhabua, in the district of Shahabad, and practised there as a Mukhtar. He lived in the houses described in Schedule A to the plaint, namely, Holding Nos. 3 and 3-A of Ward No. 3, in the town of Bhabua, standing on an area of about one katha and seventeen dhurs of Sand. After his death, these houses were not required by the family of defendants first party, who are residents of the district of Deoria in Uttar Pradesh, and fell in disrepair. There were other legal necessities to meet, and so defendant No. 1, as Karta of the joint family, contracted with the plaintiff to sell the said houses for a consideration of Rs. 10,500.00, out of which the defendant No. 1 received Rs. 1,855.00 from the plaintiff as earnest money. Defendant No. 1 executed a Moahdanama (agreement for sale) dated the 15th October, 1958, in favour of the plaintiff. It was stipulated in this agreement of sale that, out of the balance of the consideration money, Rs. 2,500.00 would be left in deposit with the plaintiff for payment to the rehandars of the defendants first party, namely, Data Singh and Husnain Mian, and the remain-Ing Rs. 6,145.00 would be paid by the plaintiff to the defendants first party at the time of execution and registration of the sale deed, which was to be executed before the 15th April, 1959. It was also undertaken by defendant No. 1 that he would get the sale deed executed in favour of the plaintiff by all the co-sharers of the property. Plaintiff was always willing to get the sale deed executed, after paying the balance of the consideration money, but till the 15th April, 1959, either defendant No. 1 or defendant No. 2 did not appear at the Bhabua Sub-Registry office to get the sale deed executed and registered. A few days later on the 19th June 1959 both defendants 1 and 2 met the plaintiff at Bhabua and some altercation took place between them because each party was accusing the other for not keeping his part of the promise. On the intervention of some persons present there including defendants second party, it was settled that the sale deed would be executed in favour of the plaintiff on the 22nd June, 1959. Plain-
tiff paid a further sum of Rs. 250.00 to defendants 1 and 2 for the purchase of requisite stamps and to meet other expenses. Defendants 1 and 2, on their part, paid Rs. 220-8-0 to Shri Krishna Singh, a deed writer, for the purchases of stamps. Defendants first party, however, did not turn up at Bhabua on the 22nd June, 1959, for executing the sale deed. Plaintiff, thereafter, came to know that defendants second party obtained a sale deed from defendants first party with respect to the said houses by promising to pay a higher consideration. This sale deed was executed not at Bhabua, but at Arrah on the 26th June, 1959. According to the plaintiff, the whole transaction was a fraudulent and collusive one, because the defendants second party did not pay anything in cash on the date of the execution of the sale deed. Defendants second party had knowledge of the plaintiff's Moahdanama from the very beginning and even when the time for execution of the sale deed was extended, they were present at the spot. In that view of the matter, defendants second party were not bona fide purchasers for value. They paid no consideration for the sale deed which they took with notice Of the plaintiff's Moahdanama. Plaintiff, therefore, brought the suit for specific performance of the contract for sale.
3. The suit was contested by defendants first and second parties. Their main allegation was that defendant No. 1 was not the Karta of the family, rather defendant No. 2 was functioning as the Karta, The family of the defendants did not constitute a ioint family, rather defendants 1, 2 and 3 formed one joint family and the other defendants of the defendants first party lived separately. They denied the negotiation for the sale of the said houses for a consideration of Rs. 10,500.00, or the receipt of Rs. 1,855.00 from the plaintiff by way of earnest money. According to the defendants first party, the consideration for the houses in question was fixed between the plaintiff and defendant No. 1 at Rs. 14,000.00, but the plaintiff got this sum reduced and fraudulently mentioned in the deed of agreement for sale. Defendant No. 1 did not himself read this deed of agreement and signed the same at the request of the plaintiff in good faith. Plaintiff was never ready with the money to purchase these houses. Defendant No. 1 did not give out that he would get the sale deed executed by all the co-sharers. Defendants 1 and 2 were present at the sub-Registry office at Bhabua on the 15th April and 16th April, 1959 ready to execute the sale deed in favour of the plaintiff, but the plaintiff did not turn up with the money, and the transaction fell through. On the 16th April, 1959, therefore, a notice was served on the plaintiff by defendant No. 2 intimating that the terms of the Moahdanama had expired. According to the defendants, the story about the extension of the date for execution of the sale deed, at the intervention of some persons, including defendants second party was a concocted one. Plaintiff never paid Rs, 250.00 or any money to defendants 1 and 2 for purchase of stamps. As defendants first party were in urgent need of money, they sold the houses in question to defendants second party for a consideration of Rs. 13,000.00. Out of this consideration, Rs. 2,500.00 was left in deposit with the defendants second party for payment of rehan money to Husnain Mian and Kastura Devi, wife of Data Singh. A further sum of Rs. 2,500.00 was paid by the defendants second party to defendants first party, and the balance of Rs. 8,000.00 was paid before the Sub-Registrar at the time of registration. Defendants second party further asserted that they had no knowledge of any prior contract for sale by defendants first party, in favour of the plaintiff.
4. Learned Additional Subordinate Judge, after a consideration of the evidence adduced on behalf of the plaintiff and defendants first and second parties, came to the conclusion that the plaintiff could enforce his claim for specific performance and defendants second party were not bona fide purchasers though for value, but with notice of the plaintiff's Moahdanama. Against this judgment and decree, the present appeal has been filed by defendants second party.
5. Learned counsel for the defendants second party appellants has raised several points in support of the appeal. His first argument is that some members of the defendants first party had executed a registered Mukhtarnama (Special Power of Attorney) in favour of defendant No. 2 (Ext. A-1) on the 2nd June, 1958, for entering into transaction in respect of the sale of the said houses, and he could not delegate his authority in this behalf to defendant No. 1. Defendant No. 1 was not the Karta of the family, and so the entire transaction is vitiated. His second argument is that defendant No. 3, widow of Sukhdeo Singh, did not join in the execution of the power of attorney in favour of defendant No. 2, and so the plaintiff could not enforce his right of specific performance of contract on the basis of this defective power of attorney in favour of defendant No. 2. His third contention was that the appellants had no knowledge of any deed of agreement for sale executed by defendant No. 1 in favour of the plaintiff. It was also contended that, the time being the essence of the contract, the original date for execution of the sale deed that is, the 15th April, 1959, could not be extended by verbal agreement, to 22nd June, 1959; when there was supersession of the first contract, a suit could not be brought on the basis of that contract.
6. The question, whether defendant No. 1 or defendant No. 2 was the karta of the family of defendants first party, has been discussed under issue No. 2 of the judgment under appeal. The finding of the learned Additional Subordinate Judge is that the Moahdanama (Ext. 5) was executed bona fide by defendant No. I with authority to represent the joint family of the defendants first set. It is argued on behalf of the appellants that Birendra Bahadur Singh (defendant No, 2) is the eldest son of Sukhdeo Singh, and Birpal Singh (defendant No. 1) is younger to Birendra Bahadur Singh, so, generally the senior member of the family is the karta. The agreement for sale was entered into on behalf of the family by a junior member of the family namely defendant No. 1, though the Mukhtarnama (Ext. A-1) was executed in favour of defendant No. 2. In my opinion, there should be no confusion concerning this point. Of course, the seniormost member is to function as the karta of a joint Hindu family, but this is not the universal rule. Even in this family there are many senior members who are uncles of these two defendants, but it is not said that anyone of them ever worked as the karta of the family. So the kartaship does not necessarily go with the seniority of a member in the family. Both these defendants are evidently educated persons. As defendant No. 2 Birendra Bahadur Singh (D.W. 11) has stated, he practised as a lawyer at Banaras and then at Deoria. He joined Government service in September, 1957, and during the relevant period, he was posted at Block Office at Chiraigaon, in the district of Varanasi. He further stated that defendant No. 1 passed his Matriculation examination in 1958 and joined Government service in 1960. So, during the relevant period, defendant No. 1 was not in any service and moved about and worked for the family. Except the statements of a few witnesses, there is nothing on the record to show that defendant No. 2 had ever acted as the karta of the joint family of the defendants first party.
In his evidence, defendant No. 2 stated that he is the karta of the family consisting of defendant No. 1, himself and defendant No. 3, his mother, and the other defendants were separate. This is apparently an interested statement and is falsified by his own action, Admittedly, defendants first party executed the sale deed, dated the 26th June, 1959 (Ext. C-II) in favour of the defendants second party. This sale deed clearly recites that the executants, namely, defendants 1 to 8 were members of the same joint family, and were surviving heirs of that joint family. In view of this clear assertion of iointness, it is now too late for the appellants to contend that defendant No. 2 was the karta of the joint family of defendants 1 to 3 only. It is also in evidence that, except these two defendants, the Other members of the defendants first party were residing in a village in the district of Deoria (Uttar Pradesh) and only these two sons of Sukhdeo Singh, who was practising as a Mukhtar at Bhabua, used to came to Bhabua at times. In the Moahdanama (Ext. 5), defendant No. 1. Birpal Singh specifically asserted that he had full authority to execute a sale deed on behalf of the entire family as he was the karta thereof. He further assured the plaintiff that for his (plaintiff's) satisfaction, all his (defendant's) co-sharers will jointly execute the sale deed. It is important to find that defendant No. 1 did not come to pledge his oath one way or the other, and the plaintiff was debarred from the opportunity of putting to him this statement of his, as mentioned in the Moahdanama (Ext. 5) concerning his assurance to the plaintiff to the effect that he was the karta of the ioint family of the defendants first party. The evidence shows that both these brothers were working on behalf of the joint family and looking after its affairs. For some time one member of the family may work as the karta, and. if he is incapacitated, another member may take his place, So, there is no hard and fast rule that a particular member of the family must always be the karta. Secondly, I may point out that by the Mukhtarnama (Ext. A-I), dated the 2nd June, 1958, defendant No. 2 was not given any power to enter into any contract for the sale of the joint family property, but, as he was a lawyer, he was given the power to execute a sale deed in respect of these houses on behalf of the executants of the Mukhtarnama. So, this Mukhtarnama itself shows that defendant No. 2 was not the karta of the family. Moreover, in his own evidence defendant No. 2 clearly stated that about one and a half months after the execution of the Moahdanama by Birpal Singh in favour of the plaintiff, he became aware of the same and he also accepted and acknowledged that Moahdanama. It is, therefore, clear that he ratified the transaction of defendant No. 1 Birpal, and so there was no matter of dispute between either of them concerning this transaction. It is also apparent from the recitals in the Moahdanama that the title deeds and other documents of the family of the defendants first party concerning these houses were in possession of Birpal (defendant No. 1). If he was a junior member of the family, how and why these documents came into his possession? The possession of the documents with Birpal clearly indicates that, even if he was a junior member of the family, he had been authorised by the other members of the family to negotiate for the sale of the houses in question. It is also in evidence that the earnest money of Rs. 1,855/- was received by defendant No. 1, who also granted a receipt (Ext. 6) for the same. Defendant No. 2 (D.W. 11), in his evidence, does not challenge the receipt of this earnest money by defendant No. 1. On behalf of defendants first party, three witnesses were examined, out of whom only defendant No. 2 asserted that he was the karta of the family. On behalf of defendants second party, eight witnesses had been, examined, out of whom only defendant No. 9 stated that defendant No. 2 was the karta of the joint family. Both these persons are interested in the case and their evidence cannot be accepted at its face value. On behalf of the plaintiffs, twelve witnesses have been examined. Out of them, P.W. 3 Rambachan Tiwari clearly stated that defendant No. 1 was functioning as the karta of the family. Of course, the plaintiff and defendant No. 1 told him about the agreement for sale. Parasnath Singh (P.W. 5) a businessman, also stated that defendant No. 1 was working as the karta. P.W. 10 Harbans Pandey, who worked as a peon in the Block Office, and who was formerly working in the Zamindari Department at Bhabua, pledged his oath to say that defendant No. 1 was the karta of the family. Of course, the plaintiff (P.W. 12) also supported this statement. So, in this background and in view of the oral and documentary evidence, it must be held in favour of the plaintiff that defendant No, 1 was working as the karta of the joint family of defendants first party, he represented himself as the karta of the family to the plaintiff, and his action was expressly ratified by defendant No. 2, who now claims to be the karta. The argument of the learned counsel that defendant No. 1 had no authority on behalf of the family to enter into any negotiation for sale cannot be accepted, and the plaintiff's suit does not suffer from any such infirmity.
7. The next contention raised on behalf of the appellants is that in the Mukhtarnama (Ext. A-I), defendant No. 3 had not joined. It is not clear as to how this omission occurred. Defendant No. 3 is the widowed mother of defendants 1 and 2. It is difficult to say whether this omission was deliberate and intentional or accidental. This aspect of the question would have assumed importance if defendant No. 3 had asserted some adverse right against the action of the other members of the family on whose behalf the Mukhtarnama had been executed. Of course, she is not a coparcener in strict legal sense, but she has got community of interest and unity of possession along with the other members of the coparcenary. This point had not been raised before the Court below, and has been raised for the first time here in appeal. If this point had been raised at the time of the hearing of the suit, perhaps, the plaintiff might have adduced evidence on this point to show that the widow was a consenting party to the Mukhtarnama, though her name does not find place in that document. The subsequent act of the widow (defendant No. 3) also goes to indicate that she was in agreement with the action taken by her sons, defendants 1 and 2. She has filed a joint written statement along with them.
In paragraph 7 of the written statement, which is on her behalf also, it is stated "the truth is that the plaintiff finalised with defendant No. 1 the negotiation for sale of the property mentioned in Schedule A", but this was for a consideration of Rs. 14,000/-, and not for Rs. 10,500/-. So, this lady (defendant No. 3) does not assert any separate title adverse to the interest of the joint family, which was represented in this transaction by defendant No. 1.
8. Learned counsel has further argued that the Court would be reluctant to grant specific performance of the contract in respect of a portion of the property only, because if defendant No. 3 did not join the Mukhtarnama, her interest would not pass to the plaintiff, if a sale deed was to be executed on the basis of that Mukhtarnama, In my opinion, such a situation does not arise in this case. The sale deed has not been executed in favour of the plaintiff, though, of course, it can be said that defendant No. 3 had not given authority to defendant No. 2 to execute the sale deed. Defendant No. 3 was not examined either in Court or on commission to say one way or the other.
The old Specific Relief Act of 1877 was repealed and replaced by the Specific Relief Act of 1963, which came into force from the 1st March, 1964. Under the old Act, which would be applicable to this case, Sections 14 to 17 dealt with claims for specific relief of a part of a contract and Section 13 enshrined a principle generally applicable to cases falling within Sections 14 to 17. All these sections have now been grouped together into present Section 12. Sub-section (1) corresponds to Section 17. Sub-section (2) corresponds to Section 14, and Sub-section (3) corresponds to Section 15. But one important change which has been made in Sub-section (3) is that when the part which must be left unperformed forms a considerable portion of the whole but admits of compensation in money, the plaintiff is allowed a proportionate abatement of the consideration when he is to relinquish all claims to further performance or any further compensation for the breach. The previous position was considered to be inequitable in this respect. Sub-section (4) corresponds to Section 16, and the explanation reproduces Section 13 with verbal changes. I would have entered into a detailed discussion about the legal aspect of this matter, but, in the circumstances of this case as well as the facts which are available on the record, it is no use dilating upon this legal aspect. Defendant No. 3, though she did not join in the execution of the Mukhtarnama, does not claim any separate right in the family property and does not say that her sons were not competent to represent her interest in the transaction. The evidence is not clear as to what would be the share of this lady (defendant No. 3) in the suit houses. From the recitals in the sale deed (Ext. C-II), it appears that executants 5 to 8 were representing one branch and Deoki Singh and Sukhdeo Singh represented two other branches. Deoki Singh died issueless in a state of jointness with others and thereafter Sukhdeo Singh, father of Executants 1, 2 and 4 and husband of executant No. 3, died in a state of jointness, leaving the executants as his heirs. If this recital is taken to be correct, then the interest of defendant No. 3 would be 1/8th in the family properties. When the plaintiff was being examined, no question was put to him whether he was willing to purchase the suit houses on the basis of the Moahdanama to which defendant No. 3 was not a party. The plaintiff himself could not say anything about this because this plea was not then taken. To another question, he replied that he would not have obtained the sale deed if it was executed by Birpal alone. It is to be noted that this answer is significant, because the plaintiff had entered into the agreement only with Birpal Singh, but thereafter the differences arose, and the question of kartaship or jointness in the family began to crop up. In such circumstances, the plaintiff must have become nervous and so in Court he could not but have said that he was not ready to take a sale deed from Birpal alone. When defendant No. 3 herself does not come forward and raise any objection to the claim of the plaintiff by pledging her oath, strangers to the family should not be allowed to raise such subtle points.
9. When the case was being argued before us, it was submitted on behalf of the plaintiff that he was ready to take the sale deed in accordance with the deed of agreement for sale. In my opinion, therefore, the omission of the name of defendant No. 3 from the Mukhtarnama would not make the contract for sale made on behalf of the defendants first party illegal, inoperative or void. Plaintiff would still be entitled to enforce the specific performance of the contract which defendant No. 1 made on behalf of the entire joint family of the defendants first party.
10. The next point urged on behalf of the appellants is that defendants second party are bona fide purchasers for value without notice. The learned Additional Subordinate Judge has found that the defendants first party were in need of money and so they must not have executed the sale deed Ext. C-II without consideration. Apparently, they got some higher price than what was being offered by the plaintiff and so they duped the plaintiff and executed a sale deed in favour of the defendants second party. He further held that the defendants second party were not bona fide purchasers and that they had taken their sale deed with due notice of the plaintiff's previous contract.
11. It is interesting to note that at the time the sale deed (Ext. C-II) was presented for registration, the Sub-Registrar made an endorsement to the effect that the entire consideration of Rs. 13,000/-had been paid in his presence. This endorsement is admittedly incorrect, because it is clear from the evidence on record as well as from the evidence of Eafruddin (defendant No. 9) that defendants first party received only Rs. 8,000/-at the time of the registration of the sale deed, inasmuch as they had received a sum of Rs. 2,500/- as earnest money as well as Rs. 300/- for purchase of stamps etc, A further sum of Rs. 2,500/- was left in deposit with the defendants second party to redeem the two rehan bonds in respect of the suit property. D. W. 2 Usman Ghani is son of the rehandar Husnain Mian, who was examined as D. W. 5. Both of them have stated that their rehan bond was redeemed by defendants 9 and 10. D. W. 6 Nijamuddin has spoken about the redemption of the rehan bond standing in favour of Choudhary Dataram's wife. So, apparently there is some 'golmal' in the endorsement made by the Sub-Registrar on the back of Ext. C-II.
12. It has been held in a series of decisions that the onus is upon the defendant who has taken a registered sale deed executed after the contract for sale in favour of the plaintiff to prove that he is a bona fide purchaser for value without notice of the earlier contract, so as to bring himself within the exception provided by Section 27(b) of the Specific Relief Act. I may refer to some of these cases, and they are : Bhupnarain Singh v. Gokulchand Mahton, reported in 61 Ind App 115 = (AIR 1934 PC 68); Shankerlal Narayandas Mundade v. New Mofussil Co. Ltd., AIR 1946 PC 97. In this case it was further held that by the law of India an oral contract is valid and enforceable, but in such a case it is a question of construction whether the execution of the further written contract is a condition, or term of the bargain, or whether it is a mere expression of the desire of the parties as to the manner in which the transaction already agreed to will in fact go through. Harendra Chandra Das v. Nanda Lal Roy, AIR 1933 Cal 98. In this case a Division Bench of the Calcutta High Court held that, when a person claims to be a transferee for value without notice of the original contract, the burden lies upon him to prove that he fulfils that character. If he was aware when he purchased the property that negotiations for the sale of the property were already in progress between his vendors and the plaintiff, and purchases the property without making necessary enquiries as to whether any agreement to sell the property had been definitely concluded between his vendors and the plaintiff, he cannot claim to be a transferee without notice. A similar view was expressed in Saukhi Sah v. Mahamaya Prasad Singh, AIR 1934 Pat 518. "Bona fide" means proper enquiry.
13. In the present case, the plaintiff has given reliable evidence that both the defendants 9 and 10 had knowledge of his agreement for sale with the family of the defendants first party. P.W. 4 Shyama Prasad stated that two days before Ramanavami, he met the plaintiff in the Court premises at Bhabua and he told him that he had with him money for the sale deed, but defendant No. 1 did not come to Court on that date. The occasion for this talk arose because Shyama Prasad wanted some loan from the plaintiff and as the plaintiff had to pay the money to defendants 1 and 2, he could not spare any money to Shyama Prasad. P.W. 5 Parasnath Singh stated that on the 19th June, 1959, he witnessed some altercation between the plaintiff and defendants 1 and 2 and at that time defendant No. 9 also was present there. He intervened in the matter and got it settled. The date for execution of the sale deed by defendants first party was extended to 22nd June, 1959. He further stated that the plaintiff paid Rs. 250/- to defendant No. 2 who paid the same to Shri Krishna Singh, a deed writer. The stamp papers (Exts. 4 to 4/b) indicate that Shri Krishna Singh had actually purchased the stamp papers for the sale deed. Of course, the plaintiff also has stated in his evidence that, on the 19th June, 1969, defendants 1 and 2 were in the company of defendant No. 9 when the altercation took place. He further stated that, on the 22nd June, 1959, defendant No. 10 was also present when he met Parasnath and Rambilas and complained to them that, in spite of the assurance given by defendants 1 and 2, the sale deed had not been executed. As against this positive evidence about the knowledge of defendants 9 and 10 about the previous contract for sale in favour of the plaintiff, the evidence adduced on behalf of defendants second party is very unreliable. Though the onus was both on defendants 9 and 10 to establish the fact that they were bona fide purchasers without notice of the previous contract, defendant No. 10 did not examine himself at all. So the evidence of the plaintiff is rather ex parte against him. I also find that D.W. 10 Bhola Ram, while stating that he had met defendant No. 2 on the 15th and 16th April, 1959 in Court premises, also stated that he met Badruddin (Defendant No. 9), who enquired from him on those dates if he had seen Birendra Singh. This clearly indicates that Badruddin was fully aware of the earlier contract for sale which defendants first party had made in favour of the plaintiff. If Badruddin had no concern with Birendra on the 15th/16th April, 1959, he must not have made any enquiry about Birendra from D.W. 10.
14. D.W. 11 Birendra Bahadur Singh has further stated that he had come on the 14th and both he and defendant No. 1 had put up in the suit houses on that occasion. This evidence was given in order to show that he was willing to perform his part of the contract but the plaintiff himself was not ready to fulfil his part of the contract. But this statement is very significant. If these two defendants really put up in the suit houses on the 14th April, 1959, they must have seen the plaintiff on the subsequent dates, because admittedly the plaintiff lives adjacent east of the suit houses, intervened by a narrow lane. The normal course of events would have been to meet the plaintiff, who was their neighbour, in his own house, and not to wander for him in Court premises. Further, defendant No. 2 did not produce any extract from the Casual Leave Register to show that he had taken casual leave to come to Bhabua on the 14th, 15th and 16th April, 1959. It cannot be denied that defendants 1 and 2 had full knowledge about the contract which they had made to the plaintiff concerning the sale of these houses. So it must be further said that they deliberately and intentionally deceived the plaintiff, and sold the house to defendants second party when they got some more consideration for the houses in question.
15. In this connection, I may dispose of another argument advanced on behalf of the appellants. The learned Additional Subordinate Judge has referred to Ext. 1, which is a complaint petition filed by Badruddin, to show that ' he had prior knowledge of the contract for sale between the plaintiff and the defendants first party. This petition is dated the 1st July, 1959. Badruddin had brought a criminal case against the plaintiff and two other females for their eviction from one of the suit rooms. It is stated in the complaint petition that the reason for commission of this offence by the accused was that accused No. 1 (the plaintiff herein) also wanted to purchase that house which the complainant had purchased after paying a greater price, and this extremely offended the accused and so he committed this illegal act. Though it may be said that this statement of Badruddin was admissible in evidence against him, I do not want to place any reliance on this document, because it can be very well argued that Badruddin came to know of the prior Moahdanama of the plaintiff after his own purchase and when he went to occupy the suit houses. This complaint petition does not clearly state that Badruddin had prior knowledge of the Moahdanama before he took his own sale deed from the defendants first party. I may further add that defendants 1 and 2 came to Court with a false case altogether. They contested the claim of the plaintiff by saying in the written statement as well as in evidence that the original Moahdanama was for Rs. 14,000/-, but through the collusion of the scribe the figure mentioned therein was Rs. 10,500/-. If this had been a fact defendants 1 and 2 must not have sold the suit houses for Rs. 13,000/- only to defendants second party. Furthermore, the receipt (Ext. 6) which was granted by defendant No. 1 in favour of the plaintiff clearly recites that the amount of consideration fixed was Rs. 10,500/- only. In view of the fact that defendants 9 and 10 failed to discharge the onus concerning notice and bona fide nature of the transaction. in their favour by defendants first party. I must, in full agreement with the finding of the learned Additional Subordinate Judge, hold that the stand taken by the appellants on this point must be negatived. The result is that the plaintiff is entitled to enforce the specific performance of this contract with defendants first party.
16. It was further argued before us that a second contract came into effect on the 19th June, 1959, the time for the execution of the sale deed was extended to the 22nd June, 1959, and so a novation of contract took place, but the plaintiff has based his claim on the original contract which required the sale deed to be executed by the 15th April, 1959. As the evidence shows, it is not a novation of contract. Only the date of the execution of the sale deed was extended and that also in an awkward situation in which defendants 1 and 2 found themselves in the morning of the 19th June, 1959. Parasnath and Rambilas had to intervene in the altercation between defendants 1 and 2 and the plaintiff. In that sense, the time given in the deed of Moahdanama cannot be said to be the essence of the contract. If the sale deed was not executed by the 15th April 1959, the plaintiff was given the right to enforce the contract through Court and get a sale deed executed. In such a situation, the sale deed must have been executed after the 15th April, 1959.
17. It was argued on behalf of the appellants that in an action for specific performance, it is necessary for the plaintiff to prove the existence of a concluded contract between himself and the defendant and that he was ready and willing at all material dates to perform his part of the contract. On this point also the plaintiff's evidence must be accepted. In his own evidence he has clearly stated that he was still prepared to pay the balance of the consideration to the defendants first set and obtain sale deed from them. His conduct also supports his intention to be ready to purchase the suit houses. Three houses, as already stated, are contiguous west of the house of the plaintiff intervened by a narrow lane. So, he must be very much willing to purchase the same. Secondly, he showed his readiness on the 19th June, 1959 in this direction by advancing Rs. 250/- to defendants 1 and 2 for purchase of stamps. It is said that the deed writer Shri Krishna Singh (P.W. 8) was a man of the plaintiff and so he purchased the stamps in collusion with him. The learned Additional Subordinate Judge, while considering this part of the evidence came to the conclusion that the deed writer was not a man of the camp of the plaintiff (vide paragraph 20 of the judgment under appeal). The redemption of the rehan bond of Husnain Mian took place at the residence of this Shri Krishna Singh and he, as a matter of fact, is a witness to the redemption as per Exhibit 8/e. It is, therefore, clear that Shri Krishna Singh could not be a creature of the plaintiff, because even long after the purchase of the stamp papers Shri Krishna Singh enjoyed the confidence of Badruddin. The statement made by P.W. 5, Parasnath, who was a colleague of the father of defendants 1 and 2, could not be discarded, So in my opinion, the learned Additional Subordinate Judge came to a right conclusion in holding that the plaintiff was always ready to perform his part of the contract.
18. Another argument which was put forth on behalf of the appellants was that Ext. 5 shows that it was a contingent contract inasmuch as it was recited by Birpal that he would get the sale deed executed and registered by all the co-sharers.
This was an uncertain future event and so in such circumstances the contract cannot be enforced. In my opinion, this argument cannot prevail. By entering into a contract for sale Birpal, defendant No. 1, had the requisite authority to enter into the transaction on behalf of all the co-sharers. So on one side there was the plaintiff representing his entire family of four brothers, and, on the other, there was Birpal representing his family. So, if Birpal gave assurance that he would get the other members of his family also execute the sale deed, it cannot be said that it was an uncertain future event or that the contract was a contingent one. This point had been raised also in the court below and the learned Additional Subordinate Judge did not accept this argument advanced on behalf of the appellants.
19. In the end, I hold that the claim of the plaintiff for specific performance of contract must be allowed, as has been done by the learned Additional Subordinate Judge.
20. In a suit for specific performance of contract principles of equity apply in spite of the fact that in India relief by way of specific performance is the creature of statute. The rule is that equity does not regard the terms of the contract, but its substance is to be applied to see as to which of the parties is entitled to. have equitable consideration. Defendant No. 1 is an educated man and by that time he had passed his Matriculation examination. Defendant No. 2 was already practising as a lawyer and had accepted Government job in 1957. So they were in a better position than the plaintiff to know as to how to proceed in the matter. From whatever aspect the case may be looked at, I think the claim of the plaintiff must stand. The time for deposit of the balance of the consideration money, as directed by the Court below, is extended by three months from today, if not already deposited.
21. In the result, I do not find any merit in this appeal. It is, accordingly, dismissed with costs.
Anwar Ahmad, J.
22. I agree.