Calcutta High Court (Appellete Side)
Smt. Shyamali Chandra & Anr vs Smt. Reba Adak & Ors on 14 September, 2018
Author: Biswajit Basu
Bench: Nadira Patherya, Biswajit Basu
Form No. J(1)
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
Present:
Hon'ble Justice Nadira Patherya, J.
And Hon'ble Justice Biswajit Basu, J.
F.A. No. 18 of 2004 Smt. Shyamali Chandra & Anr.
Vs. Smt. Reba Adak & Ors.
For the appellants : Mr.Pushpendu Bikash Sahu
Mr. Sukumar Bhattacharyya
Ms. Piyali Show
Ms. Sayani Bhattacharya
For the respondent no. 1: Mr. Dipankar Dhar.
Mr. Rudra Dhar
Mr. Pallab Mandal.
For the respondent no. 2: Mr. Sibasis Ghosh
Mr. Bidhayak Lahiri
Ms. Debjani Bandyopadhyay.
For the respondent no. 3: Mr. Mirnal Kanti Das, Sr. Adv.
Mr. Sisir Kumar Bhowmick
Mr. Amritendu Bhyowmick
Heard on : 22nd June, 2018
Judgment on : 14.09.2018
Biswajit Basu, J.
This appeal is at the instance of the defendant Nos.2 and 3 in a suit for specific performance of an agreement for sale of immovable property and is directed against the judgment and decree dated January 31, 2000 passed by the learned Civil Judge (Senior Division), 1st Court at Howrah in Title Suit No. 34 of 1994.
2. The case of the plaintiff in the plaint is that the suit property originally belonged to one Fularani Dutta. While in possession, she transferred the property by virtue of a deed of settlement dated November 21, 1984 in favour of the defendant Nos.1, 2 and 3 and they became the absolute owners of the suit property. The plaintiff agreed to purchase the suit property at a valuable consideration of Rs. 1,00,000/- (rupees one lakh) only being the highest prevailing market price. On May 09, 1991, there was an agreement for sale between the plaintiff and the defendant no. 1 and the father of the defendant nos. 2 and 3. The plaintiff paid the sum of Rs. 10,000/- (rupees ten thousand) only as earnest money out of the total consideration of Rs. 1,00,000/- (rupees one lakh) only to purchase the suit property. In terms of the said agreement, the defendants were to handover all the relevant papers and documents relating to the title of the property to the plaintiff but the defendants supplied only Xerox copies of the deed of settlement dated November 21, 1984. The defendants did not take any step for measuring and demarcating the suit property although the plaintiff took all possible steps to conclude the contract. On enquiry, the plaintiff came to know that defendants were attempting to sell the suit property to third parties at a higher price.
On October 20, 1993 the plaintiff sent a letter through her authorized Agent Shri Ganesh Chandra Das, Advocate under Registered post with Acknowledgement Due requesting the defendants to execute and register the Deed of Conveyance in respect of the suit property in favour of the plaintiff on acceptance of the balance consideration money after measuring and demarcating the same. On November 18, 1993 the defendant No.1 replied the same through his Advocate Shri Monojit Bhattacharjee admitting the oral agreement for sale in respect of the suit property by and between the parties and on acceptance of the earnest money to the tune of Rs.10,000/- (rupees ten thousand) only but took the plea that on May 9, 1991 the plaintiff obtained the agreement for sale under the influence of the husband of the plaintiff and refused to execute the Registered Deed of Conveyance with the willingness to refund the earnest money.
The further case of the plaintiff is that she was and is always ready and willing to perform the part of her contract and to purchase the suit property by means of a Registered Deed of Conveyance provided the same is appeared to be free from all encumbrances.
3. The defendant Nos.1, 2 and 3 filed a written statement. The case of the said defendants in the said written statement as recorded by the Learned Trial Judge in the judgment under challenge needs to be highlighted and is reproduced hereunder.
The suit is not maintainable in its present form and prayer of the plaintiff has no cause of action for the suit or right to sue and the suit is barred by limitation.
The father of the defendant had no authority to enter into any agreement or to sign or accept any payment on behalf of the defendant Nos. 2 and 3. The oral agreement entered into was never such as has been sought to be agreed at the alleged agreement for sale. The oral agreement was made earlier to May 09, 1991 in respect of the landed property and not with the furniture etc. The plaintiff never acted in terms of the agreement for sale and never arranged for measurement nor any step was taken to make searches. No requisition for such document was also made.
The plaintiff and her husband insisted on delivery of the possession of the property after removal of the care taker there, which was not possible for the defendants.
The defendant Nos.2 and 3 were not interested in sale of the property. The husband of the plaintiff gave an understanding that it would be possible for them to get rid of the caretaker if some papers in writing were given to them and on good faith the defendant No.1 and his father signed some papers as per dictation of the husband of the plaintiff without going through the contents of the alleged agreement for sale.
The defendant Nos.2 and 3 never had any knowledge about the written agreement for sale after the oral agreement. The defendant lastly submitted that the instant suit was filed at the instance of the husband of the plaintiff and is collusive and should be dismissed with costs.
4. On consideration of the aforesaid pleadings of the parties following issues were framed in the suit and reads as follows:-
i) Is the suit maintainable in its present form in law?
ii) Has the plaintiff any cause of action?
iii) Is the plaintiff entitled to get a decree for specific performance of contract as prayed for?
iv) To what other relief/reliefs is the plaintiff entitled to?
v) Whether Narayan Babu had any right and authority to enter into the agreement for sale and to execute the agreement for sale for and on behalf of the defendant Nos.2 and 3 on 9.5.91?
vi) Whether the plaintiff was and is always ready and willing to perform her part of contract?
5. The learned Trial Judge by the judgment and decree under challenge allowed the suit by directing the plaintiff/respondent No.1 to pay the balance consideration money within March 31, 2000. The defendant Nos.1 to 3 were also directed to execute and register the deed of sale within April 30, 2000 on deposit of the balance consideration money, in default, the plaintiff/respondent No.1 has been granted liberty to execute and register the deed of sale through Court in due course of law.
6. Mr. Puspendu Bikash Sahu, learned Counsel, appearing on behalf of the appellants throws challenge to the validity and legality of the judgment and decree under appeal on various grounds as recorded in seriatim herein below:-
i) The plaintiff in a suit for specific performance, as required under Section 16(c) of the Specific Relief Act, 1963 (hereinafter referred to as 'the said 1963 Act') must aver and prove his readiness and willingness to perform essential terms of contract which are to be performed by him under the agreement. He by referring to Order 6 Rule 3 of the Code of Civil Procedure submitted that the averments made in the plaint of the suit to satisfy the requirement of Section 16(c) of the said Act of 1963 must be in the form as prescribed under the Form Nos.47 and 48 of appendix 'A' of the Code of Civil Procedure, but the averments of the plaint of the present suit do not satisfy the said requirement. In support of this contention he places reliance on the decision of the Apex Court reported in 2003 (10) Supreme Court Cases - 390 (Manjunath Anandappa URF Shivappa Hanasi- Versus- Tammanasa And Others) and a decision of the Andhra Pradesh High Court reported in [MANU/AP/0250/2008 (Baddamprathap Reddy -Versus- Chennadi Jalapathi Reddy & Anr.). ]
ii) The plaintiff admittedly is not in possession of the suit property, although is entitled to pray for such relief at any stage of the proceeding by amending the plaint but till date the plaintiff has not prayed for the said relief of possession, and according to him, such omission on the part of the plaintiff hits the maintainability of the suit.
iii) The description of the suit property in the agreement for sale dated May 09, 1991 does not match the description of the suit property in the schedule appended in the plaint. Therefore, the agreement for sale suffers for uncertainty and is void under Section 29 of the Indian Contract Act, 1872.
iv) The agreement dated May 9, 1991 is not the result of the oral agreement for sale between the parties. The agreement dated May 09, 1991 has no nexus with the oral agreement for sale and the plaintiff seeks specific performance of the said agreement dated May 09, 1991 in the present case. The plaintiff, to prove her case that the oral agreement between the parties has been reduced in writing in the agreement dated May 09, 1991 must bring the terms and conditions of the said oral agreement on record and must prove that the parties agreed to the said terms and conditions and thereafter agreed to reduce the same in writing.
Mr. Sahu to strengthen this contention, places reliance on the decisions of the Apex Court reported in (2016) 1 Supreme Court Cases - 762 (K. Nanjappa (Dead) By Legal Representatives -Versus- R.A. Hameed Alisa Ameersab (Dead) By Legal Representatives And Another). According to him, in the present case, the plaintiff has not established any evidence that the agreement is based on the terms and conditions of the oral agreement, or the oral agreement was a concluded contract, reduced into writing by the parties. He further submits that from the materials on record it is clear that the plaintiff seeks specific performance of the agreement dated May 9, 1991 and the said agreement has not been signed and executed by the appellants but on their behalf a person has signed, who may be their father but had no authority to do so. He by referring to Section 7 of the Transfer of Property Act, 1882 and Section 11 of the Contract Act, 1872 submits that daughters were major and competent to transfer their property and were entitled to enter into agreement for the said purpose. He by referring to the decision reported in AIR 1998 Calcutta - 44 (Punit Beriwala -Versus- Suva Sanyal And Others) submits that the contract entered into by the agent not having power of attorney of the owner was not specifically enforceable.
v) The jurisdiction to decree of Specific Performance is discretionary and the Trial Judge has exercised such discretion arbitrarily in decreeing suit at least in respect of the shares of the defendant Nos. 2 and 3 in the suit property as there is no valid and enforceable agreement for sale between the plaintiff and the defendant Nos. 2 and 3. He by relying on the decision of the Apex Court in the case of reported in (1990) 3 Supreme Court Cases - 1 (Mayawanti -Versus- Kaushalya Devi) concludes that the agreement for sale suffers from the defect, makes the contract invalid or unenforceable therefore specific performance cannot be decreed. According to him, the discretion exercised by the learned Trial Judge in decreeing the suit arbitrarily, is capable to being corrected by the Court of appeal.
Relying on the decision reported in (2016) 1 SCC - 567 (Hemanta Mondal And Others -Versus- Ganesh Chandra Naskar he submits that possession of the suit property has not been given to the plaintiff till date, the area of land agreed to be sold not clear and the plaintiff has not done substantial acts or suffered losses in consequence of the contract as such there is no scope to exercise the said discretion in decreeing the suit under Sub-Section (3) of Section 20 of the Specific Relief Act, 1963.
7. Mr. Dipankar Dhar, learned Advocate appearing on behalf of the plaintiff/respondent No.1 at the threshold submits that the Learned Advocate for the appellant is advancing his argument on the grounds which have not been taken in the memorandum of appeal excepting the ground of authority of the father to enter into the agreement for sale on behalf of his daughters.
8. Mr. Dhar refuting the submissions of Mr. Sahu, that the averment of the plaint is lacking the requirement of 16(c) of the said Act of 1963 submits that the plaintiff in the plaint has asserted her readiness and willingness in Paragraph No.8 and has also demanded the specific performance of agreement vide exhibit No.6. He submits that the averment of readiness and willingness as required under the said provision of the said Act of 1963 can be culled out from the reading of all averments made in the plaint. He adds that in the present case the averment of the plaint are in form as prescribed under Form No.47 and 48 of appendix 'A' of the Code of Civil Procedure, therefore, satisfies the requirement of Section 16(c) of the said Act of 1963.
9. Mr. Dhar, learned Advocate submits that the failure of the plaintiff to ask for possession of the suit property is not fatal as urged by Mr. Sahu the plaintiff is entitled to ask for such possession even at the execution stage under Section 28(3) of the said Act of 1963 and in support of such contention he relies on the decision of the Apex Court reported in AIR 1982 (Supreme Court) page 818 (Babu Lal -Versus- M/s. Hazari Lal Kishori Lal And Others).
10. Mr. Dhar contends that there is no mismatch of the description of the suit property in the agreement for sale vis-à-vis in the schedule of plaint as raised by Mr. Sahu. According to him the plaintiff has detailed the description of the suit property in schedule of the plaint of the suit after getting the papers relating to the title of the suit property which were not available at the time of execution of the agreement for sale.
11. Mr. Dhar then submits that the Learned Trial Judge has rightly exercised his discretion as contemplated under Section 20 of the said Act of 1963 in decreeing the suit. He by referring to Sub-Section (3) of Section 20 of the Specific Relief Act, 1963 contends before us that the discretion has been properly exercised by the learned Trial Judge in decreeing the suit inasmuch as there is a contract capable of specific performance. He further contends that there was an oral agreement prior to the agreement dated May 09, 1991. The execution of the said oral agreement is admitted as would be appearing from Exbt. No.7 so also the reply of the learned Advocate for the defendant No. 1 to the notice of the plaintiff Exbt. No.6, demanding specific performance of the agreement. Existence of such oral agreement has also been mentioned in the plaint. He further contends that the defendants in their joint written statement at Paragraph No. 17 have admitted the existence of the oral agreement. The agreement dated May 09, 1991 is the culmination of the said oral agreement in the written form. He then by referring to the testimony of PW2 and PW3 contends that at the time of the oral agreement the appellants were present. Referring to the decision reported in AIR 2009 (Supreme Court) page 1527 (Aloka Bose -Versus- Parmatma Devi & Ors.) submits that the oral agreement for sale is valid.
He on the point of authority of the father of the appellants to sign the agreement for sale on behalf of his daughters refers to Sections 187 and 197 of the Indian Contract Act, 1872 and by referring to the oral testimony of the appellant to the effect that the husbands of the defendant Nos.2 and 3 jointly visited the husband of the plaintiff in Court prior to receipt of the reply dated November 18, 1993 and expressed their willingness to execute and register the deed of sale promptly after receiving the entire consideration money from the plaintiff and that the said incident demonstrates the expressed ratification of the appellants to the action of their father to enter into the said agreement for sale on their behalf. Therefore, according to him there is a concluded contract between the parties, which is capable of being enforced.
12. Mr. Sibasis Ghosh, learned Advocate appearing for the respondent No.2 by referring to clause No.1 of the agreement for sale dated May 09, 1991 contends that time is the essence of the said agreement and in terms of the said clause the plaintiff was to conclude the entire sale transaction within three months. The plaintiff having not done so within the said stipulated time is not entitled to a decree for specific performance of the said agreement. In support of his contention Mr. Ghosh relied on the decision reported in (2011) 12 SCC - 18 (Sardamani Kandappan vs. S. Rajalakshmi & Ors.). Mr. Ghosh further adds that his client although has not led any evidence in support of his written statement but that does not absolve the learned Trial Judge from the duty of scrutinizing the plaint case before decreeing the suit and in support of his contention he relied on the decision of the Apex Court reported in (1999) 8 SCC - 396 (Balraj Taneja & Anr. vs. Sunil Madan & Anr.).
13. Mr. Mrinal Kanti Das, learned Senior Advocate appearing for the respondent No.3 submits before us that his client is a bona fide purchaser with value without notice. Though the name of his client is 'Smt. Surati Dey' but was added as 'Smt. Suravi Dey', she was not allowed to contest the suit and as a consequence thereof she could not place her case before the Trial Court. The said mistake has been corrected by the order dated February 14, 2013 passed in the present appeal. He, therefore, submits that the purchase of his client cannot be affected by the decree under challenge in the present appeal.
14. We have heard the learned Advocates for the parties at length and have perused the materials on record. Now let us consider the submissions of the Learned Advocates of the respective parties on the basis of the materials available on record.
15. It is rightly submitted by Mr. Sahu as has been held in the decision reported in (2003) 10 SCC - 390 (Supra) that to satisfy the requirement of Section 16(c) of the said Act of 1963 the plaintiff must aver and proof that he has always been ready and willing to perform the essential terms of the contract which are to be performed by him and the averment in the plaint must be in conformity with Form No.47 and 48 under appendix 'A' of the Code of Civil Procedure. The said Form No.47 requires that the plaintiff has applied to the defendant specifically to perform the agreement on his part, but the defendant has not done so and the plaintiff has been and still is ready and willing specifically to perform the agreement on his part of which the defendant has had notice. Form No.48 requires pleadings regarding the demand of specific performance by the plaintiff and the refusal thereof by the defendant so also tender of money. In the present case in the plaint there is clear demand by the plaintiff for the specific performance of the agreement for sale and the suit was preceded by a notice of such demand. There is payment of earnest money of Rs.10,000/- (rupees ten thousand) only. The plaintiff in the plaint has categorically stated that she is still ready and willing to perform her part of obligation under the agreement for sale and ready to pay the balance consideration price subject to the suit property is free from encumbrances. We are at one with Mr. Dhar that the pleadings in the plaint are in the form as required under Form No.47 and 48 under appendix 'A' of the Code of Civil Procedure thus satisfy the requirement of Section 16(c) of the said Act of 1963.
16. The plaintiff in a suit for specific performance is required to pray for relief of possession and such relief shall not be granted unless specifically claimed. But it is rightly pointed by Mr. Dhar that the plaintiff under Sub- Section (3) of Section 28 can claim the said relief of possession at any stage of proceeding including at the execution stage. The position of law in this regard has been settled in the decision relied on by Mr. Dhar reported in AIR 1982 (Supreme Court) - 818 (Supra) where it has been held that the legislature has given ample power to the Court to allow amendment of the plaint at any stage of the proceeding, including execution proceedings and further held that Section 22 of the said Act of 1963 is only an enabling provision. Relevant portion of the Paragraph Nos.20 and 22 of the said reported decision are reproduced below:-
"20. It is thus clear that the Legislature has given ample power to the Court to allow amendment of the plaint at any stage, including the execution proceedings (emphasis supplied). ............ "
22. The only amendment to be made in the plaint was to add a relief for possession necessitated because of the provisions of S. 22. which is only an enabling provision."
We, therefore, find no substance in the said submission of Mr. Sahu that the plaintiff not being in possession of the suit property should have asked the relief of possession and omission on the part of the plaintiff to make such prayer fatal for the suit. The decree under challenge is yet to be executed and it is rightly submitted on behalf of the plaintiff/respondent no.1 that the plaintiff can claim the relief of possession or partition and separate possession even at the execution stage.
17. The third contention of Mr. Sahu that the agreement for sale is vague and is void under Section 29 of the Indian Contact Act, 1872 as description of the suit property as appearing in the agreement for sale is different with that of the description of the property appended to the agreement for sale. We find on perusal of the description of the property mentioned under the schedule of the agreement for sale that the property is in R.S. Dag nos.1806, 1807 and 1809 under Khatian nos. 2723 and 2724 in Mouza - Amta, Police Station - Amta under Amta Sub-registry Office. The area of the land is 27-13/20.
There is no difference in the description of the suit property with that of the description of the property mentioned in the said agreement excepting in the schedule of the plaint the total area of the whole plot no.1806 has been mentioned, which is 42-1/4. We do not think that description of the property in the agreement is vague and/or uncertain which could attract Section 29 of the Indian Contract, 1872 to render the agreement for sale dated May 09, 1991 void for uncertainty.
18. Let us now consider the fourth contention of Mr. Sahu that there is no concluded contract between the plaintiff and the Defendant Nos. 2 and 3 as the agreement for sale has been signed by the father of the appellants for and on their behalf without having any authority. The Learned Court below has framed an issue on this point being issue No.5 which reads as follows:-
"5. Whether Narayan Babu had any right and authority to enter into the agreement for sale and to execute the agreement for sale for and on behalf of the defendant Nos.2 and 3 on May 09, 1991?"
19. This issue according to us was the main issue to be decided in the suit. The learned Trial Judge although has framed the aforesaid issue but has not recorded any clear cut finding on the said issue in his judgment. However, to decide the said issue let us now first examine whether the agreement dated May 09, 1991 is the culmination of the oral agreement for sale as claimed by the learned Counsel for the plaintiff/respondent No.1.
20. The burden lies heavily on the plaintiff to prove that the parties to the agreement had agreed on the terms and conditions of the oral agreement and those terms and conditions have only been reduced in writing in the agreement dated May 09, 1991. We from the entire materials on record do not find the terms and conditions of the said oral agreement.
We find from paragraph No.17 of the written statement filed jointly by the appellants with their brother, the defendant No.1 that the parties to the said agreement are not only in dispute with regard to the terms and conditions of the oral agreement and agreement dated May 09, 1991 but also they are in dispute with regard to the property to be conveyed under the oral agreement and the agreement dated May 09, 1991. The relevant portion of the said paragraph no.17 of the written statement is reproduced below for ready reference:-
".......in fact the oral agreement entered into was never such as has been sought to be agreed at the alleged bainama patra brought into existence subsequently by a Sr. Advocate, the husband of the plaintiff Oral agreement was much earlier to the date of 9.5.91 but that was in respect of the landed property and not with the furniture etc. and other belongings of the said property which has been made subject matter of the said bainama patra.........".
21. The plaintiff in Paragraph No.3 of the plaint stated in a very casual manner that the defendants offered to sell the suit property at a total consideration of Rs.1,00,000/-(rupees one lakh) only, being the highest available market price then prevailing in the area to which the defendants agreed verbally and there was a concluded contract. Excepting this statement the plaint is completely silent about the terms and other details of the oral agreement. PW1 (plaintiff) does not say anything about the oral agreement and its terms and conditions. PW2, PW3 and PW4 asserted that the oral agreement was made by the parties in their presence but the said witnesses are completely silent about the terms and conditions of the oral agreement and did not claim that the said oral agreement was reduced in writing on May 09, 1991.
22. It is necessary to mention in this connection that the plaintiff by the notice issued by her Advocate being exhibit No.6 demanded specific performance of the agreement dated May 09, 1991 without any reference to any oral agreement. In the agreement dated May 09, 1991 there is also no reference to any oral agreement. That apart Sections 91 and 92 of the Indian Evidence Act, 1872 do not permit the plaintiff to lead any oral evidence to contradict, vary or modify the terms and conditions of the written agreement. In this context it is necessary to quote from Taylor on Evidence (Twelfth Edition):-
"1132 ....... parol testimony cannot be received to contradict, vary, add to, or subtract from, the terms of a valid written instrument ......."
23. There is no dispute with regard to the proposition of law laid down in the decision of the Apex Court reported in AIR 2009 (Supreme Court) - 1527 (Supra) cited by Mr. Dhar that an oral agreement for sale is valid but it is rightly submitted by Mr. Sahu by taking support from the decision of Apex Court reported in (2016) 1 Supreme Court cases - 762 (Supra) that heavy burden lies on the plaintiff who seeks specific performance of a contract of sale of immovable property to prove that there was consensus ad idem between the parties for the concluded agreement for sale of immovable property. Paragraph Nos.21 and 22 of the said reported decision being relevant in the context, quoted below:
"21. There is no dispute that even a decree for specific performance can be granted on the basis of oral contract. Lord Du Parcq in a case observed, while deciding a suit for specific performance, that an oral contract is valid, binding and enforceable. A decree for specific performance could be passed on the basis of oral agreement. This view of a Privy Council was followed by this Court in Kollipara Sriramulu v. T. Aswatha Narayana and held that an oral agreement with a reference to a future formal contract will not prevent a binding bargain between the parties.
22. However, in a case where the plaintiff comes forward to seek a decree for specific performance of contract of a sale of immovable property on the basis of an oral agreement or a written contract, heavy burden lies on the plaintiff to prove that there was consensus ad idem between the parties for the concluded agreement for sale of immovable property. (Emphasis supplied) Whether there was such a concluded contract or not would be a question of fact to be determined in the facts and circumstances of each individual case. It has to be established by the plaintiffs that vital and fundamental terms for sale of immovable property were concluded between the parties."
The plaintiff has not placed on any material before the Court to discharge her burden to prove that the agreement dated May 09, 1991 is the culmination of the prior oral agreement entered into by and between the parties.
24. Therefore, the facts and circumstances of the present case as well as the materials available on record do not inspire us to hold that the agreement dated May 09, 1991, the Exhibit No.5 is the culmination and/or written form of the oral agreement entered into by and between the parties. On the contrary, on consideration of the entire materials on record we find that there is no nexus between the oral agreement and the agreement dated May 09, 1991. The entire materials on record unmistakably suggests that the plaintiff is seeking specific performance of the agreement for sale dated May 09, 1991, i.e., the Exhibit No.5.
25. The next question to be considered is regarding the authority of the father of the appellants to sign and execute the agreement for sale dated May 09, 1991, Exhibit No.5. Mr. Dhar, Learned Advocate for the plaintiff/respondent No.1 has contended before us by placing reliance on Section 197 of the Indian Contract Act, 1872 that the principal may ratify the act of its agent's authority, expressly or impliedly. He by referring to the oral testimony of PW1 submits that the husband of the appellants jointly visited the husband of the respondent No.1 prior to receipt of the reply dated November 18, 1993 in Court and expressed their willingness to execute and register deed of sale promptly after receiving the entire consideration money. The said incident signifies ratification of the appellants to the act of their father. This argument of Mr. Dhar is wholly based on surmise and conjecture. There is no material on record to, even remotely suggest that the husband of the appellants was authorized to negotiate a bargain on behalf of the appellants.
26. It is rightly submitted by Mr. Sahu that the appellants under Section 7 of the Transfer of Property Act, 1882 are competent to transfer their own property so also under Section 11 of the Indian Contract Act, 1872 to enter into agreement for such transfer. It is a settled position of law that a person who has no title in the property must have authority to transfer it. The instances of authority to transfer the property of another is one of an agent acting as a power of attorney holder; the donee of a power of appointment; the guardian of a minor duly authorized by the Court on its behalf; the manager of a Hindu family in case of necessity or for the benefit of the family: the committee or manager of lunatic; a receiver when empowered by Court; an executor or administrator having authority to dispose of the property of the deceased regulated under Section 307 of the Indian Succession Act, 1925.
27. In the present case there is no such material and/or document which remotely suggests grant of authority by the appellants in favour of their father Narayan Chandra Pain authorizing him to enter into the said agreement for sale on their behalf. The contention of Mr. Sahu that the father of the appellants is not competent to enter into the said agreement for and on behalf of the appellants in the absence of power of attorney executed by the appellants in his favour for the said purpose gets support from the decision relied on by him reported in AIR 1998 (Calcutta) - 44 (Supra).
28. Therefore, on consideration of the entire material on record before us and law relating to the issue, we hold that the father of the appellants entered into the agreement for sale dated May 09, 1991, the Exhibit No.5 for and on behalf of the appellants was without any authority. The said agreement, therefore, does not constitute a valid and legal agreement for sale so as to bind the appellants and for the said reason the said agreement is not enforceable against the appellants so far as it relates to their two third share in the suit property.
29. The last and final contention of Mr. Sahu that the learned Trial Judge has exercised his discretion in decreeing the suit arbitrarily needs to be addressed. It is true that under Section 20 of the said Act of 1963 the jurisdiction to decree the specific performance is discretionary. The exercise of such discretion by learned Trial Judge shall not be usually interfered with by the Appeal Court. But such discretion is capable of correction by the Court of appeal when it has been found that the said discretion has been exercised arbitrarily and without being guided by judicial principles.
30. The Apex Court in the decision reported in (1990) 3 Supreme Court Cases - 1 (Supra) has held that the specific performance will not be ordered if the contract itself suffers from some defect which makes the contract invalid and unenforceable. Paragraph No.8 of the said reported decision which is relevant in the context of the present appeal is quoted below:
"8. In a case of specific performance it is settled law, and indeed it cannot be doubted, that the jurisdiction to order specific performance of a contract is based on the existence of a valid and enforceable contract. The Law of Contract is based on the ideal of freedom of contract and it provides the limiting principles within which the parties are free to make their own contracts. Where a valid and enforceable contract has not been made, the court will not make a contract for them. Specific performance will not be ordered if the contract itself suffers from some defect which makes the contract invalid or unenforceable. (Emphasis supplied). The discretion of the court will be there even though the contract is otherwise valid and enforceable and it can pass a decree of specific performance even before there has been any breach of the contract. It is, therefore, necessary first to see whether there has been a valid and enforceable contract and then to see the nature and obligation arising out of it. (Emphasis supplied) The contract being the foundation of the obligation the order of specific performance is to enforce that obligation."
31. The Learned Trial Judge has exercised the discretion vested in him arbitrarily and without being guided by judicial principles in decreeing the suit in respect of the shares of the appellants in the suit property, as the agreement for sale dated May 09, 1991 is not a valid, concluded and enforceable agreement between the plaintiff/respondent No. 1 and the defendant Nos. 2 and 3/appellants
32. The agreement for sale when in itself is not enforceable against the appellants there is no scope for the Court to exercise discretion under Sub- Section (3) of Section 20 of the said Act of 1963 to decree the suit in respect of the shares of the appellants in the suit property. Moreover, the Apex Court in the decision reported in (2016) 1 Supreme Court Cases - 567 (supra) relied on by Mr. Sahu refused to grant the decree of specific performance of agreement as the plaintiff in the said case was not put into possession pursuant to the agreement and had not done substantial acts or suffered loss due to expenditure in construction etc. In the present case that the plaintiff pursuant to the agreement has neither been put into possession of the suit property nor she has suffered any loss in consequence of the said agreement. Therefore, the contention of Mr. Dhar that the learned Trial Judge has rightly exercised the discretion in decreeing the suit in terms of Sub-Section (3) of Section 20 of the said Act of 1963 is of no substance.
33. The issue raised by Mr. Dhar that the appellants are now assailing the judgment of the trial Court on the grounds not taken in the memorandum of appeal excepting the ground of the authority of the father of the appellants to enter into the agreement for and on behalf of his daughters needs to be dealt with.
34. The law is clear on this point. Under Rule 2 of Order 41 of the Code of Civil Procedure the appeal Court is not bound to confine its decision to the grounds of the objection set forth in the memorandum of appeal provided the respondent is given an opportunity to contest the said grounds.
35. In the present appeal we find that although in the memorandum of appeal the grounds on which the learned Counsel for the appellant has argued before us are not set out not in a very clear language but the ground are in substance present in the memorandum of appeal. That apart the Learned Advocate for the respondents has argued on all the grounds on which the Learned Advocate for the appellants advanced his argument. Therefore, the said contention of Mr. Dhar is devoid of any merit as such rejected. The Rule 2 of Order 41 of the Code of Civil Procedure is quoted below for proper appreciation of the scope of the said provision of the code:
"2. Grounds which may be taken in appeal.- The appellant shall not , except by leave of the Court, urge or be heard in support of any ground of objection not set forth in the memorandum of appeal, but the Appellate Court, in deciding the appeal, shall not be confined to the grounds of objections set forth in the memorandum of appeal or taken by leave of the Court under this rule:
Provided that the Court shall not rest its decision on any other ground unless the party who may be affected thereby has had a sufficient opportunity of contesting the case on that ground."
36. Now to consider the contention of the learned Counsel for the respondent No.2 that the time is the essence of the agreement for sale dated May 09, 1991. We need to see whether terms and conditions of the said agreement and the conduct of the parties to the agreement reflect their intention to make time as the essence of the said agreement. In Paragraph 28 of the decision relied on by Mr. Ghosh reported in (2011) 12 SCC - 18 (supra), it has been held that the intention to make time stipulated for payment of balance consideration money to be essence of the contract where such intention is evident from the expressed terms or the circumstances necessitating the sale, set out in the agreement.
37. The contention of Mr. Ghosh that the learned Trial Judge is under an obligation to scrutinize the plaintiff's case that the suit is barred by limitation before decreeing the same, even in the absence of any written statement. There is no dispute with the said proposition of law but in the present case from a perusal of the terms and conditions of the agreement for sale it does not appear that the parties intended to make time, the essence of the contract. The Trial Court under the said circumstances has not committed any error in not considering the point urged by Mr. Ghosh. In the facts and circumstances of the present case the decision relied on by Mr. Ghosh reported in (1999) 8 SCC - 396 (supra) is of no help.
38. Let us now consider the case of the respondent No. 3 who has purchased the share of the defendant Nos. 2 and 3/appellants during the pendency of the suit by virtue of a registered deed of sale dated April 21, 1995. The contention of Mr. Mrinal Kanti Das, learned Senior Advocate for the respondent No. 3, that his client was not allowed to contest the suit does not appear to be correct on the scrutiny of the records.
39. The defendant No. 4, the respondent No. 3 herein was added in the suit vide Order no. 27 dated November 03, 1997 and the said defendant No. 4 appeared in the suit on March 05, 1998. Thereafter Surathi Dey appeared in the suit as defendant No. 4 on November 03, 1997 by executing a vakalatnama in favor of her learned advocate Chitralekha Chatterjee (Goswami). The learned trial Judge, thereafter, granted several opportunities to the defendant No. 4/ Surathi Dey to file written statement but no written statement was filed on behalf of the defendant No.4. As a result, the learned trial Judge vide Order No. 34 dated January 27, 1999 decided to proceed with the suit ex-parte against the defendant No. 4. Therefore, the submission of Mr. Das, learned Senior Advocate that his client was not allowed to contest the suit as she was wrongly described as Suravi Dey in the suit is not correct.
40. The defendant no. 4 did not avail the opportunity to protect her purchase by taking resort to Section 19 (b) of the said Act of 1963. Therefore, in the absence of any material before us that the defendant No. 4 is a bona fide purchaser for value without notice of the original contract, we are unable to protect the said purchase of the defendant No.4, by taking recourse to Section 19(b) of the said Act of 1963.
41. The defendant No.4 is a stranger purchaser who purchased the shares of the appellants and is not protected under Section 19(b) of the said Act of 1963. The suit was filed on May 06, 1994 and the defendant No.4 purchased the shares of the appellants during the pendency of the suit, i.e., on April 21, 1995. Therefore, the defendant No. 4 admittedly a post suit purchaser and her title to the purchased property is subject to the result of the suit and is hit by Section 52 of the Transfer of Property Act, 1882 as held by the Apex Court in the case of Guruswamy Nadar versus P. Lakshmi Ammal (D) through Lrs. and Ors. reported in AIR 2008 SC 2560. The relevant portion of Paragraph no.3 of the said Judgment is reproduced below:
"3........................Section 19 of the Specific Relief Act clearly says subsequent sale can be enforced for good and sufficient reason but in the present case, there is no difficulty because the suit was filed on 3-5-1975 for specific performance of the agreement and the second sale took place on 5-5-1975. Therefore, it is the admitted position that the second sale was definitely after the filing of the suit in question. Had that not been the position then we would have evaluated the effect of Section 19 of the Specific Relief Act read with Section 52 of the Transfer of Property Act. But in the present case it is more than apparent that the suit was filed before the second sale of the property. Therefore, the principle of lis pendens will govern the present case and the second sale cannot have the overriding effect on the first sale............................."
42. It is now necessary to consider whether specific performance of the agreement dated May 09, 1991 in respect of the one third share of the defendant no.1/respondent no.2, in the suit property can be ordered or not?
The respondent No.1 is a party to the agreement dated May 09, 1991 and he signed the said agreement. He did not lead any evidence in the suit in support of his written statement. The respondent No.1 received the earnest money of Rs. 10,000/-(rupees ten thousand) only along with his father from the plaintiff. He has accepted the decree by not filing any appeal against the decree.
43. The whole decree cannot be set aside in the present appeal filed by the defendant Nos.2 and 3 against all the defendants by taking recourse to the provisions of Rule 4 of Order 41 of the Code of Civil Procedure. The appellants are not proceeding on a common ground to all the defendants. Rule 4 of Order 41 of the Code is reproduced below for ready reference:-
"Order 41 Rule 4: One of several plaintiffs or defendants may obtain reversal of whole decree where it proceeds on ground common to all.- Where there are more plaintiffs or more defendants than one in a suit, and the decree appealed from proceeds on any ground common to all the plaintiffs or to all the defendants, any one of the plaintiffs or of the defendants may appeal from the whole decree, and thereupon the Appellate Court may reverse or vary the decree in favour of all the plaintiffs or defendants, as the case may be."
44. We, therefore, on consideration of the entire materials on record hold that the agreement for sale, Exhibit No. 5 being a concluded and valid contract between the plaintiff and the defendant no.1/respondent no.2, is enforceable against said respondent No. 2 so far as it relates to his share in the suit property.
45. In the present case the appellants and the respondent No.2 are joint owners of the suit property having 1/3rd undivided share each. It has been held by the Apex Court in the case of A. Abdul Rashid Khan (dead) and Others - versus - P.A.K.A. Shahul Hamid and Others reported in (2000) 10 SCC 636 that even where property is held jointly and any party to the contract agrees to sell such property by agreement then even if the other co-sharer has not joined at least to the extent of his share he is bound to execute the sale deed. Paragraph 14 of the said reported decision is reproduced below:
"14. Thus we have no hesitation to hold, even where any property is held jointly, and once any party to the contract has agreed to sell such joint property by agreement, then, even if the other co-sharer has not joined, at least to the extent of his share, he is bound to execute the sale deed. However, in the absence of the other co-sharer, there could not be any decree of any specified part of the property to be partitioned and possession given. The decree could only be to the extent of transferring the share of the appellants in such property to other such contracting party. In the present case, it is not in dispute that the appellants have 5/6th share in the property. So, the plaintiff's suit for specific performance to the extent of this 5/6th share was rightly decreed by the High Court which requires no interference."
46. In view of the discussion made hereinabove we allow the appeal by setting aside the said judgment and decree dated January 31, 2000 passed by the learned Civil Judge (Senior Division) First Court at Howrah in Title Suit no.34 of 1994 to the extent so far as the said judgment and decree relate to two-third share of the appellants in the suit property.
It is however, declared that the plaintiff/respondent No.1 is entitled to a decree of specific performance in respect of the one-third share of the defendant No.1/respondent No.2 in the suit property. The total consideration price for the sale of suit property is Rs.1 lakh. The plaintiff to purchase the 1/3rd share of the defendant no. 1/respondent no. 2 is required to pay a sum of Rs. 33,333/-(Rupees thirty three thousand three hundred thirty three only). The plaintiff has already paid a sum of Rs.10,000/- (Rupees ten thousand only) to the defendant no. 1/ respondent no. 2. Therefore, the plaintiff has to pay balance sum of Rs. 23,333/- (Rupees twenty three thousand three hundred thirty three only) to purchase the 1/3rd share of the defendant no. 1/respondent no. 2.
47. The said amount of Rs.23,333/- (rupees twenty three thousand three hundred and thirty three) only shall be paid by the plaintiff/respondent no.1 to the defendant No.1/respondent No.2 within one month from this date and the defendant No.1/respondent No.2 within one month thereafter shall execute and register a proper deed of conveyance in respect of his one-third share in the suit property in favour of the plaintiff/respondent no.1. In default of payment of the balance consideration price within the stipulated time as aforesaid the suit shall stand dismissed.
48. In the event the defendant No.1/respondent No.2 fails and neglects to execute and register deed of conveyance within the time stipulated herein above even after the payment of the aforesaid sum of Rs. 23,333/- (Rupees twenty three thousand three hundred thirty three only) the plaintiff/respondent No.1 is at liberty to have the deed of conveyance executed and registered in his favour through the Court of Civil Judge (Senior Division) 1st Court, Howrah in accordance with law.
In view of the aforesaid the judgment and decree dated January 31, 2000 passed by the Learned Civil Judge (Senior Division) First Court at Howrah in Title Suit no.34 of 1994 is modified to the extent indicated above.
I agree.
(Nadira Patherya, J.) (Biswajit Basu,J.)