Patna High Court
Babu Rameshwar Prasad Sahi vs Mst. Anandi Devi And Anr. on 1 September, 1955
Equivalent citations: AIR1956PAT53, AIR 1956 PATNA 53
JUDGMENT Sinha, J.
1. The plaintiff is the appellant, and the appeal arises out of a suit for specific performance of a contract for sale and for possession of the suit lands. Defendant 1 is the grandmother of defendant 2. Defendant 2, then a minor, entered into a contract for sale with the plaintiff in respect of 3 bighas 14 kathas 21/2 dhurs of land in village Baruraj, district Muzaffarpur, for a consideration of Rs. 1,000/-.
The stamps for the sale deed were purchased and the document was executed by defendant 1 for self and as guardian for defendant 2, and a .sum of Rs. 555/- was paid by the plaintiff out of the consideration money. The plaintiff's case further is that defendants 1 and 2 are residents of village Sisai, and these lands in suit were in village Baruraj.
The defendants wanted to sell off their lands in village Baruraj and buy lands in village Sisai. In September 1945, the defendants needed money for taking settlement of 12 kathas of land in village Sisai for a consideration of Rs. 1,300/-. Defendant 1 went to the Registration office on 21-9-1945, along with the plaintiff, but the document could not be registered on account of the absence of the Sub-Registrar.
Thereafter, it is alleged, defendant 1 fell ill and remained confined to bed for about six months, and, after her recovery, when the plaintiff wanted the registration of the document, defendant 1 refused.
2. The defence was that a portion of the property was the separate property of defendant 2 and defendant 1 had no right to enter into a contract on behalf of defendant 2, and that no money was needed by the defendants in September, 1945.
It was also alleged that, on the very date when the document in question was to be registered, namely, 21-9-1945, defendant 1 had executed a kebala in favour of Basawan Sahi, and in connection with that kebala, Basawan Sahi, a friend and neighbour of the plaintiff, in collusion with the plaintiff, had fraudulently obtained thumb marks of defendant 1 on several stamp papers, and defendant 1 feared that some of those stamp papers were converted into the kebala in question.
There was complete denial of any receipt of money from the plaintiff.
3. The learned Munsif found that defendant 1 had entered into a contract with the plaintiff for sale of the lands, as alleged by the plaintiff, and that she had received a sum of Rs. 555/- as earnest money. He, however, found that the contract for sale of the lands in question was not for the benefit of defendant 2 and, as such, was not binding upon defendant 2, and that the kehala was not registered on account of the laehes of the plaintiff and so no decree for specific performance and possession could be passed because those laches amounted to abandonment of the contract and of the right of the plaintiff for specific performance.
In that view of the matter, the suit was dismissed. There was, however, a decree for refund of Rs. 555/- by defendant 1 to the plaintiff.
4. On "appeal, those findings arrived at by the learned Munsif have been upheld and the suit has been dismissed.
5. Mr. Kailash Rai, appearing on behalf of the appellant, has submitted -- (1) that there was, benefit to the minor; (2) that there were no laches amounting to abandonment of the contract or waiver by the plaintiff;' and (3) that even if there was no benefit to defendant 2, the plaintiff was entitled to a decree for specific performance in respect of the lands equivalent to the share of defendant 1.
6. It should be noted that defendant 2, who was supposed to be minor at the time of the execution of the sale deed in question, has attained majority before the suit was brought on 11-9-1946. Both the Courts below agree, in finding that there was no benefit to defendant 2 by the transaction in question. This is a question of fact, and it is not open to the appellant to go behind that finding in second appeal.
The Court has found that only 12 kathas of land were to be acquired in village Sisai and for that purpose there was already a sale deed in favour of Basawan for 1 bigha of land and another sale deed for 10 kathas of land in favour of one Tappi. Besides these 1 bigha and' 10 kathas of land, 3 bighas 14 kathas and 21/2 dhurs were to be sold to the plaintiff for acquisition of 12 kathas of land in village Sasai. On the very face of it, therefore, the transaction was not for the benefit of defendant 2, a minor at the time of the execution of the sale deed.
7. So far as the question of laches is concerned, that, in my opinion, is a mixed question of law and fact as the inference of laches based upon findings of fact is an inference of law. In this case, it is evident that the sale deed in question was executed on 21-9-1945, and it was made over to the plaintiff on that very date. The document being with the plaintiff, he should have made efforts for getting the document registered.
He should have asked defendant 1 to admit registration of the document; on her failure or refusal to do so, steps should have been taken by him under Section 77, Registration Act for compulsory registration of the document. The plaintiff did not do anything of the kind, and absolutely, no action was taken by him. This inaction of the plaintiff for about one year disentitled him to relief by way of specific performance. I quite concede that mefe delay in bringing the suit for specific performance will not disentitle the plaintiff to a decree for specific performance; but if there is complete inaction for a long time without any adequate explanation, that inaction, in my opinion, debars the plaintiff to the equitable relief by way of specific performance.
Mr. Rai has placed reliance upon certain authorities, one of which is an unreported decision of this Court in -- 'Zakir Sadsgar v. Dolegobind Ghose', AIR 1955 Pat 201 (A). In this case on 10-3-1948, the price for sale of certain holdings was settled, and, in pursuance of the agreement for sale, a certain sum of money was paid out of the purchase money to defendant 1 for purchase of requisite stamp. That money was handed over by defendant 1 to a deed-writer for purchase of stamp papers. The stamp papers were purchased and the sale deed was actually written out and executed.
After the execution, defendant 1 demanded cost of registration and the plaintiff handed over a sum of Rs. 70/- to the scribe for that purpose. The parties, thereafter, on that very date, went to Registration office. Defendant 1 and the scribe went inside the office, but the sale deed could not be registered as the Sub-Registrar was going out on commission. On that Very date, on demand defendant 1, the plaintiff gave a sum of Rs. 550/-in advance to defendant 1.
The sale deed, however, remained in the custody of the scribe. The suit was brought on 8-3-1951, just a day or so before the expiry of the period of limitation. It was contended on behalf -of the defendant that the suit should fail on the ground of delay. It was observed, however that, although the suit was filed on 8-3-1951, "the plaintiff had not been inactive in the assertion of his rights under the contract. It would appear that on 10-7-1948, the plaintiff sent a notice to Ram Sunder Kundu to enquire of him as whether he was still prepared to refund. the amount which lie had given to him for purchasing the stamp and for meeting the cost of registration and to return the sale deed executed by defendant 1, pointing out that assistance of the Court would be taken against him and the execution of the sale deed.
......... Thereafter the plaintiff filed a criminal case against defendant 1 and Ram Sunder Kundu for cheating under Section 420, Penal Code. The accused, however, were acquitted on 16-11-1949."
In a proceeding under the House Rent Control Act for eviction of the plaintiff, the plaintiff had asserted that he was -in possession not as a monthly tenant of the premises but as an owner of it since the date of the execution of the sale deed in his favour by the owner, defendant 1, and according to their Lordships, this amounted to assertion of the plaintiff's right under the contract , in December 1949. The judgment in the House Rent Control Act case was given on 28-10-1951, and their Lordships observed that:
"It may well be that the plaintiff was waiting for these proceedings to end before filing a suit for specific performance. When, however, time was expiring and the proceedings were not yet coming to a final conclusion, he filed his suit on 8-3-1951. In my judgment there is no clear proof that the plaintiff abandoned his rights under the contract. The circumstances, as far as they have been established, on the contrary, indicate that the plaintiff was asserting his rights under the contract throughout."
Reliance was placed on another observation of their Lordships to the effect:
"It seems to me, however, that where there is law of limitation within which a person can bring his suit for specific performance he is entitled, to bring his suit at any time before the period of limitation has expired. Such delay as has taken place in the present case can be explained. The plaintiff was prosecuting defendant 1 and Ram Sunder Kundu for cheating. He was also resisting eviction. It cannot be said, in my opinion, that the plaintiff just remained idle since 10-3-1948 until 8-3-1951, and thus by his conduct showed no desire to enforce his rights under the contract."
Then, again, their Lordships, after quoting relevant passages from Fry on Specific Performance, observed as follows:
"It seems to me, however, unnecessary to deal with this aspect of the matter any further because, in my opinion, the circumstances clearly establish that the plaintiff was not altogether idle in asserting his rights under the contract between 10-3-1948 and 8-3-1951, when the present suit was filed. On the facts established in this case therefore, neither the theory of abandonment nor the ground for late filing of the suit can be regarded as sufficient to deny the plaintiff his right to have the contract of sale between him and defendant 1 specifically performed."
It will thus be seen that it was a case most unlike the present one where there is complete inaction by the plaintiff, although the plaintiff in the present case had an advantage over the plaintiff of the case the decision of which has just been referred to in that be had the document duly executed in his favour in his possession,
8. Another case to which reference was made by Mr. Rai is that of -- 'Arjuna Mudaliar v. Lakshmi Ammal', AIR 1949 Mad 265 (B). In that case the suit for specific performance WAS filed after a lapse of 22 years and even then their Lordships held that even this delay by itself would not preclude the plaintiff from obtaining specific performance if his suit was otherwise in time. In that case it was doubtful whether the transaction in question amounted to a sale or it amounted to a mortgage by conditional sale.
According to the plaintiff, the transaction in that case amounted to mortgage by conditional sale which could be redeemed within 60 years. In those circumstances, it was held that mere delay did not by itself preclude the plaintiff from obtaining the specific, performance if his suit was otherwise within time. The delay must be snch that it may be properly inferred that the plaintiff had. abandoned his right, or on account of the delay there must have been such a change of circumstances that the grant of specific performance would prejudice the defendant. This case, therefore, also on facts is entirely different.
In the case of -- 'Raja of Vizianagaram v. - Maharaja of Jeypore', AIR 1944 Mad 518 (C), it was held that the plaintiff was "throughout insisting on the completion of the agreement. There was no suggestion that the agreement would not be completed so long as the Court of Wards managed the Madgole estate. Even, thereafter the Vizianagaram estate (the plaintiff) was pressing for the completion of the agreement.. ....."
It was on such facts that their Lordships held that when the statute provided a period of limitation for the bringing of a suit, the remedy of specific performance would not ordinarily be refused on the ground of delay if the suit was within the prescribed period; but they were careful to add that "No doubt eases might arise in which the delay in filing the suit might have led the other side to infer that the plaintiff had waived his rights under the agreement and in such cases the plea of laches might be considered a ground for refusing specific performance. But there is nothing of the kind here".
The last case on the point cited by Mr. Rai is that of -- 'Jhaman Mahton v. Amrit Mahton', AIR 1946 Pat 62 (D). In regard to this case, it is said that the suit for specific performance had been brought after a long delay; but it is not necessary to consider this case inasmuch as the question of delay was not raised there. The facts, however, do not indicate that there was much delay. On 4-8-1939, one Budhan Mahton executed a sale deed in favour of the plaintiffs. As Budhan failed, to register the deed, the plaintiffs applied for compulsory registration, but Budhan did not appear before the Registrar and the document was net registered.
We get no date of the proceeding taken for compulsory registration, and the suit was filed on 27-2-1940. Therefore, there was no question of delay in that case. From the judgment of the first Court in the case in hand it appears that, since the execution of the document, there has been change in the 'status quo', namely, that "a portion, as has transpired during the argument, of the property in dispute has been transferred to a third person in the meantime; and that third person is no party before the Court." (Vide p. 19 of the certified copy of the judgment of the first Court).
This fact is not referred to in the judgment of the Court below nor was this matter rained before me, in second appeal.
9. The case of -- 'Valambalachi v Duraiswami Pillai', AIR 1928 Mad 344 (E), is an authority for the proposition that where, in pursuance of an agreement to sell property, an unregistered deed of sale duly executed by the vendor is tendered by him to the purchaser and the document is accepted by the purchaser, the purchaser must be regarded as relieving the vendor from his obligation under the law to tender a registered document in performance of the contract and the vendor is not bound to execute another deed of sale if the vendee fails to take proceedings in time to get the document registered.
In the present case also, the document was made over to the plaintiff, and with great respect I think the judgment in the aforesaid case, though by a Single Judge, is entitled to weight. If the executant of a document has made over the document duly executed by him to the buyer, it is for the buyer to take steps for the registration of the document, and one of The steps he should take immediately within the time provided by law is to get that document registered under the provisions of the Registration Act. , If he takes steps and fails, he may sue for specific performance of the contract, but if he sits tight over the matter, takes no step which is open to him to be taken in law and waits without assigning any reason fof the delay, then that delay may disentitle him to specific performance which is a discretionary relief.
In the case of -- 'Subba Reddiar v. Visvanatha Reddiar', AIR 1914 Mad 275 (F), also it was held that where a vendor executed a sale ' deed and handed it over to the vendee without registration and the vendee, without having the deed compulsorily registered, allowed the period of registration to expire, he was not entitled to maintain a suit for the execution and registration of a fresh sale deed. I am, therefore, of the opinion, on a consideration of all these facts and circumstances, that the Court below has come to the right conclusion that the inaction of the plaintiff for about 12 months amounts to abandonment of the contract and waiver of his rights to sue for! specific, performance,
10. It was lastly argued that the plaintiff should have been given a decree for specific performance of a part of the contract, namely, in regard to the share in the lands in suit belonging to defendant 1, and reliance was placed upon Sections 14, 15 and 16, Specific Relief Act. It should be noted, however, that this point was nowhere taken, and this involves a finding of fact as to whether the shares of defendant 1 and defendant 2 were divisible, nor was it said at any time that the plaintiff was prepared to buy the share of defendant 1 for the whole of the consideration settled, namely, l\s. 1,000/-. At the lime of the hearing of this case, an additional ground was taken by the appellant which runs as follows:
"For that in any view of the case, the Courts below ought to have passed a decree for specific performance of the contract with respect to at least the share of defendant 1 in the disputed land which was to the extent of half."
Section 14, Specific Relief Act refers to specific performance of part of contract where the party to the contract is unable to perform the whole of the contract and the part unperformed is small. That, in my opinion, has no application. Section 15 reads as follows:
"Where a party to a contract is unable to perform the whole of, his part of it, and the part which must be left unperformed forms a considerable portion of the whole, or does not admit of compensation in money, he is not entitled to obtain a decree for specific performance. But the Court may, at the suit of the other party, direct the party in default to perform specifically so much of his part of the contract as he can perform, provided that the plaintiff relinquishes all claim to further performance, and all right to compensation either for the deficiency, or for the loss or damage sustained by him through the default of the defendant."
The first thing to notice is that there is no averment anywhere on record that the plaintiff relinquishes all claim to further performance, and all right to compensation either for the deficiency, or for the loss or damage sustained by him on account of the act of the defendant. In the second place, there is no inability on "behalf of defendant 1 to perform the whole of the contract.
Defendant 1 did not make any representation that the whole of the property, the subject-matter of the contract, belonged to her. She had made a contract on her behalf and on behalf of somebody else, and it has been found that the contract is not enforceable in law so far as that somebody is concerned. To such a case Section 15 has no application.
Illustration (a) to the section, on which reliance is placed, says that if A contracts to sell to B a piece of land consisting of 100 bighas and it turns out that 50 bighas of the land belong to A and the other 50 "bighas to a stranger, who refuses to part with them, then A cannot obtain a decree against B for the specific performance of the contract; but if B is willing to pay the price agreed upon, and to take the 50 bighas which belong to A waiving all right to compensation either for the deficiency or for loss sustained by him through A's neglect or default, B is entitled to a decree directing A to convey those 50 bighas to him on payment of the purchase money. This is not the case here.
The contract in the present case was not made by defendant 1 in respect of the whole of the property representing that it was hers. The contract was by her for self and on behalf of a minor. Section 16 also refers to a contract where a part of it, taken by itself, can and ought to be specifically performed, and stands on a separate and independent footing from another part of the same contract which cannot or ought not to be specifically performed, the Court may direct specific performance of the former part.
In the case of -- 'Abdul Haq v. Mohammad Yehia Khan', AIR 1924 Pat 81 (G), the facts were that there was an agreement for sale executed by defendant 1 and by defendant 2, for self and as guardian of defendants 3 and 4, to sell certain immovable properties; and it was held that defendant 2 as 'de facto' guardian of defendants 3 and 4, had no power to convey to the plaintiff the shares of defendants 3 and 4. A question arose whether specific performance could be granted in respect of the shares of defendants 1 , and 2, and with regard to that question, Das, J. (as he then was) observed as follows:
"Now as to this the rule is that the Court will not, as a general rule, compel specific performance of a contract unless it can execute the whole contract. It may, of course, be that the contract, though in form one and entire, is in substance divisible and where the contract is in substance divisible, there is nothing to prevent the Court from carrying into effect that portion of it, (in substance a separate contract), which is capable of being carried into effect ........
But here again the rule is firmly established that a contract for sale of property in one lot will generally be considered indivisible, for the reason that there is obvious injustice in compelling the purchaser of the entirety to take undivided parts or shares of the estate. Now in the present case the plaintiff having purchased certain specific, properties belonging to four persons could not be compelled to take the shares of two of them in those properties. Defendants 1 and 2 could not be heard to say, 'It is true that we contracted to sell not our shares in the property, but certain properties belonging to us and two minors and that we are unable to convey the shares of the minors, but nonetheless you are bound to complete the sale so far as our shares are concerned.
The plaintiff would be entitled to say, if such a case was put forward by defendants 1 and 2, 'I did not contract to purchase your shares but I contracted to purchase certain specific properties of which you together with the minor defendants are the owners.' Such a contention on the part of the plaintiff would, in my opinion, be unanswerable; and no Court will force upon the plaintiff shares of the property when he has contracted to purchase the entirety. It is quite true that that is not the attitude of the plaintiff in the present case, and he, through his learned Vakil, has intimated his willingness to take a conveyance of the shares of defendants 1 and 2, but 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 of them.
Want of mutuality in the contract is a well-recognised defence to a suit for specific performance ............"
His Lordship quoted with approval the following observation of Lindley L J. in the case of -- "Lumley v. Ravenscraft', (1895) 1 QB 683 (H):
"This case is not within the exception as to misconduct stated in -- 'Price v. Griffith', (1851) 1 De C.M. and G. 80 (I) and -- Thomas v. Dering', (1837) 1 Keen 729 (J) but comes within the general rule that where a person is jointly interested in an estate with another specific performance will not be granted against him as to his shares."
Thereafter, his Lordship dealt with the provisions of Sections 14, 15 and 16, Specific Relief "Act and, on a consideration of those sections, held that it was quite impossible to give the plaintiff a decree for specific performance as against defendants, 1 and 2.
In my opinion, this case is an authority for the proposition that in a case like the present one no specific performance could be granted in respect of a part of the property, namely, in respect of the share of the property belonging to defendant 1. In Chap. XVI, Article 823, in Fry on Specific Performance, it is said as follows:
"823. A contract for the sale of property in one lot will generally be considered indivisible. Thus, in a case: where two undivided seventh shares of land were sold in one lot, the Court refused to enforce specific performance where a good title could be made to one-seventh only: and the purchaser of the entirety will, of course, not be compelled to take six undivided seventh parts of the estate. And so in a case where two persons were owners of an estate in undivided moieties, and the plaintiff sought to enforce an alleged contract by them to lease the coals under it, but could not prove any such contract against one of the owners, one ground on which the bill was dismissed against the other owner also was that he had never contracted to lease one share alone.
If he had held himself out and contracted as the owner of the whole, the pase would have been different. But, in the absence of misrepresentation or misconduct, the general rule is that, where a person is jointly interested in an estate with another person, and purports to deal with the entirety, specific performance will not be granted against him as to his share."
11. In my judgment, the observations quoted above are in no way in conflict with the provisions of - the Specific Relief Act, and, therefore, in the present case no decree for specific performance could be granted in respect of the share of defendant 1 only when the Court cannot grant specific performance in regard to the share of defendant 2. Reliance was placed on the case of -- 'Jainarain v. Surajmull', AIR., 1949 FC 211 (K). There the fact was that contract was made by different persons jointly in respect of certain shares in a private limited company It was held in that case that the plaintiffs were entitled to specific performance of the contract in respect of 350 shares by two of the joint promisors on payment of the entire consideration. That case was decided on the principle enunciated in Section 43, Contract Act which enacts that anyone of the joint promisors may be compelled to perform the contract, and that principle cannot be invoked in the present case, as there were no joint promisors.
12. In the circumstances discussed above, there is no substance in the appeal, and it must be dismissed, with costs.