Patna High Court
Jiwanandan Singh vs Sia Ram Prasad Singh on 9 December, 1960
Equivalent citations: AIR1961PAT347, AIR 1961 PATNA 347
JUDGMENT H. Mahapatra, J.
1. This appeal by the plaintiff arises out of a suit for specific performance of an agreement for sale executed by the defendant on July 13, 1955 in respect of 8 bighas 17 kathas 16 dhurs of land out of plot No. 2144 under khata No. 2 in tauzi 2703 of Saran Collectorate for Rs. 8,001/-. This document has been marked as Exhibit 1. On the date of the execution of this agreement, Rs. 2000/- was paid as a part of the consideration money to the defendant. Rupees 3,810/- was to be left in deposit with the plaintiff for redemption of several zarpeshgi deeds in favour of others. Rupees 974-12-6 was also to be left with him to pay the decretal dues of one Ramautar Singh.
Another sum of Rs. 213-13-6 was to be paid for another decretal dues of Bhuteli Pandey, brother of the plaintiff. The balance of Rs. 1,002-6-0 was to be received by the defendant in cash at the time of the execution of the sale deed. This agreement was executed at Durgapur where the plaintiff works as a contractor, and it had been agreed between the parties that when the plaintiff would come to the village to which both he and the defendant belong, the sale deed would be executed, but when the plaintiff came later to his village and demanded execution of the sale deed from the defendant, the latter did not pay any heed to that. The suit was, therefore, instituted to enforce the specific performance of that contract for sale.
2. In defence the execution of the agreement was denied, and it was alleged that the defendant had gone to the plaintiff at Durgapur and asked for Rs. 1,200/- from the plaintiff which the latter paid on the defendant agreeing to sell 14 kathas 5 dhurs of land appertaining to plot No. 2549 of village Piroutha. The defendant received Rs. 1200/-from the plaintiff for which he gave a receipt putting his signature and thumb-mark on a blank piece of paper. He admitted that he acknowledged in that receipt a sum of Rs. 2,100/-, though in fact he had taken only Rs. 1,200/- as he was asked to do so.
It was agreed according to him, at that time between the parties that the sale deed would be executed by the defendant when the plaintiff would come to his village; but as the plaintiff asked for a sale deed in respect of the suit land, the defendant refused. He alleged that the blank paper containing his thumb-mark, signature and acknowledgment of receipt of money has been subsequently filled up as an agreement, and, as such, it is not genuine.
Inadequate price and want of legal necessity were also pleaded. It should be noted here that the defendant has been sued in the present suit in his capacity as the karta of the family on an averment in the plaint that the family was benefited by that agreement. It is admitted that the only other male member of the family is the minor son of the defendant.
3. Seven issues were framed by the trial Court of which the following are important for our purpose :
"(5) Is the mohaida-deed set up by the plaintiff valid, genuine and for consideration? (5a) Is the alleged contract for legal necessity for adequate price and for the benefit to the family of the defendant? (6) Is the plaintiff entitled to specific performance of contract?''
4. It has been held by the trial Court that the plaintiff succeeded in proving the execution of the agreement (Ext. 1) by the defendant, and the allegation that the signature, thumb-impression and acknowledgment were on a blank paper which was subsequently filled up as the suit in agreement has been found untrue. But against the plaintiff it has been found that the market value of the land under the agreement could not be less than Rs. 1500/-per bigha in the year 1955 when the suit transaction took place, but the price stipulated in the agreement works to Rs. 900/- per bigha. On that basis the trial Court has also held that the plaintiff failed to prove the legal necessity for alienation. In that view the specific performance has been refused.
5. The learned Additional Subordinate Judge, who tried the case, relied upon Exhibits A(4), A(5) and A(6), which are three mortgage-deeds relating to plot No. 2144 with which we are also concerned in the present suit. Those mortgages were of the year 1945 and filed by the defendant to show that the price of the land in suit was much higher than what appears from the suit agreement. The consideration as mentioned in these three exhibits comes to Rs. 1,000/-, Rs. 1,333/- and Rs. 1,333/-respectively. As against these, four other mortgage deeds in respect of the same plot No. 2144 of the year 1923 marked as Exhibits A, 2, 2(d) and 2(e) were proved by the plaintiff. There the average zarpeshgi amount comes to Rs. 500/- per bigha. (After considering the documentary evidence his Lordship concluded :) The average price, as it appears from these documents of Exhibits 3 series and Exhibits C series, comes to about Rs. 1,000/-, as against which the price in the suit agreement at Rs. 900/- does not appear unreasonable or far too inadequate. It is well known that when the seller approaches the buyer and has great need for money, he is usually met in the market with a little lower price than the average. In the present case it is admitted that the defendant approached the plaintiff at his place of business and asked for accommodation with money, in which circumstances it is not unlikely that the price agreed to between the parties would have been a little less than what the land would have fetched otherwise in the market. In consideration of all the circumstances in the case and the admitted facts, and the average price of the land in the village as indicated by the documents of sale executed nearabout the suit transaction. I am distinctly of the view that Rs. 900/- per bigha was not at all inadequate, and the finding of the trial Court only on the basis of 10 years old mortgage deeds was improper.
6. The finding of the lower Court about want of legal necessity in respect of the suit transaction appears to have been based on its view that the price for which the land was to be sold was inadequate. Both the documentary and the oral evidence given by the plaintiff was that money was required by the defendant for effecting repairs of his house, purchasing bullocks and meeting other needs of agricultural and household affairs besides the redemption of the mortgagee mentioned in the document and the payment of the decretal dues specified therein.
It was urged for the respondent that neither of the two decrees was under execution, and the mortgagees were also not pressing for repayment of the advances. There was sufficient time left for redemption of the mortgages. In absence of any pressure either in respect of the mortgages or the decrees, there was no immediate necessity for the defendant to dispose of valuable lands belonging to the family for the - discharge of those debts. Learned counsel contended that no mortgage debt can be taken as pressing until the sixtieth year is about to expire.
I am afraid this contention cannot prevail. As long as the mortgage is not redeemed, the family is deprived of the enjoyment of the entire property given in mortgage. It may be considered prudent to redeem the mortgage and dispose of either a portion of the property or some other property, in which case the family can have the benefit of full enjoyment of those or remaining lands. What will be an act of prudence is to be judged in the light of the surrounding circumstances and the disposition of the family, and particularly of the Karta.
That is a matter to be left to the decision of the managing member of the joint family. In the case of Niamat Rai v. Din Dayal, 54 Ind App 211 : (AIR 1927 PC 121), the managing members of the joint Hindu family sold part of the joint property, and out of the consideration received a portion was applied to discharge debts incurred in carrying on a business to which the joint family had succeeded, and the balance was invested in that business.
Two minor members of the family sued to set aside the sale. The High Court of Lahore was of the opinion in that case that as the business had recently resulted in loss, the managing member was not justified in putting more money in it, and that in any case he should have raised money by mortgage instead of by sale. This was overruled by their Lordships of the Judicial Committee who held that that was a question for the manager to decide and it was for him to determine whether it would be better to raise more money or to close down the business, and it was unreasonable to require the lender or the purchaser to go into questions of that kind as to which he would rarely be in a position to form a sound opinion.
It thus appears whether it was desirable to redeem the mortgagee and repay the decretal dues at that time with a view to avoiding further interest and costs on the decretal amount and releasing the mortgaged properties for full enjoyment of the family was for the defendant, who was the father and Karta of the family, to decide and he decided the way as we find stipulated in the suit agreement. That cannot be challenged either by the minor coparcener or the defendant himself.
As to the receipt of cash consideration of Rs. 2,000/- at the time of the execution of the agreement the endorsement made by the defendant is absolutely clear wherein he acknowledged to have received Rs. 2,000/-. His case that he actually received Rs. 1200/- cannot be supported by evidence. The explanation given by him is hardly acceptable. If he approached the plaintiff to sell some land and to receive a part of the price in advance, there was no point why he should be forced to acknowledge a receipt of a higher amount than what was paid to him.
It is in evidence that he needed money for the purchase of bullocks, house repairs and other family necessities. The defendant's case is that he is addicted to Ganja intoxication, and the money was needed by him for that purpose alone. There is no evidence whatsoever to connect the transaction with that vice. Apart from the fact that it has not been established that the defendant is really given to such kind of Ganja smoking and intoxication, even if it is taken that he is so, until and unless the transaction in suit is connected with that vice, namely, that the money was obtained and utilised for that immoral purpose, there cannot be any defence on that ground.
7. It was contended for the respondent that the minor son, though not impleaded as a party defendant in the suit, was represented by the defendant himself inasmuch as the defendant was sued in his capacity as Karta, and it is open for him to take the defence on the ground of immoral debt. Every debt incurred or every transaction entered into by a father, who is given to immoral habits, is not necessarily tainted with immoral purpose. That has to be shown by evidence, and until it is done, the debt or transaction cannot be avoided.
In the present case there is no evidence whatsoever that the money received was utilised for Ganja smoking, far less for any other immoral purpose. Thus the defence raised on that account cannot prevail. It was further argued for the respondent that the statement of the necessities about the purchase of bullocks, house repairs and other family requirements was untrue, and as a matter of fact no part of the consideration was spent on that account. (His Lordship then considered this contention along with other contentions raised and held (1) that it had not been established by the defendant that money was not needed for the purchase of bullocks, house repairs and other family necessities; (2) that in view of the oral evidence and the circumstances, particularly the admitted facts, the finding that Exhibit 1 was executed by the defendant could not be assailed; and (3) that the finding of the trial Court that Exhibit G an endorsement appearing on Exhibit A, a mortgage bond was suspicious and ante-dated could not be assailed.)
8. It was next urged that the plaintiff should be refused specific performance as he suffered long delay in coming to the Court. The agreement was on the 13th July, 1955. According to the evidence the plaintiff came to his village on the 20th October, 1955 and got the refusal from the defendant. He filed the suit on the 13th December, 1955. I do not understand how and where the delay has occurred. The plaintiff came to the Court within less than two months from the date of refusal by the defendant.
Besides, there is no question of limitation. When the State provides a definite period within which a litigant is free to come to the Court, delay within that period cannot be pleaded against him. In support of this view reference may be made to the case of Lindsay Petroleum Company v. Hurd, (1874) 5 PC 221 followed in Kissen Gopal Sadaney v. Kally Prosonno Sett, ILR 33 Cal 633 and Mt. Batulan v. Nirrnal Das, 44 Ind Cas 244 : (AIR 1918 Pat 630).
The observation of Sir Lawrence Jenkins in Osmond Beeby v. Khitish Chandra Acharjya, ILR 41 Cal 771 at p. 790 : (AIR 1915 Cal 13 at p. 15) strengthens the same view. Learned counsel for the respondent relied upon the case of Rameshwar Prasad Sahi v. Mt. Anandi Devi, AIR 1960 Patna 109 where the defendant executed an agreement but refused to present it for registration. No steps were taken by the plaintiff in that case for 12 months to get the document compulsorily registered as provided under the Indian Registration Act, nor did he file any suit for specific performance in Court.
On the facts and circumstances of that case it was held that the plaintiff had abandoned his right under the document, and in that view the suit failed. It has not been laid down there as it could not have been that the delay of 12 months in all cases will prove fatal in a suit for specific performance of an agreement In the case before us the delay, if any, was for two months and far less than 12 months as was in the reported case.
The Court, as a proposition of law, cannot apply arbitrarily a time limit to non-suit a litigant who under the statutory provision is entitled to seek the relief in a Court of law within a prescribed period. If the circumstances of any particular case would indicate that the plaintiff has waived and abandoned his rights to which he was entitled long before he came to the Court, he may be nonsuited but not otherwise. In the present case there is no material to point out that the plaintiff was ever guilty of such abandonment by his conduct.
9. The case of Ram Janam Pandey v. Shyam Behari Lal, 1955 BLJR 93, was cited, but on the facts that has no application. There the sale deed was executed and registered, but it was not delivered to the vendee as no consideration was paid by him for three months although there was a great urgency for the vendor. It was held there that on account of the delay in payment of the consideration committed by the plaintiff, he could not sue on the basis of that sale deed as a contract.
10. Next it was contended that admittedly the defendant's mother is alive who is entitled to an interest which her deceased husband, namely, the father of the defendant would have got on partition. In view of Section 14 of the Hindu Succession Act, 1956, she would be an absolute owner of that interest, and, as such, would not be bound by the suit agreement. On that basis no decree should be passed for specific performance.
There is a fallacy in this contention. In the first place, without partition she could not be taken to be possessed of the property without which the absolute ownership as provided in Section 14, would not come to her benefit. Secondly, she being a member of the joint family was bound by the act of the managing member which has been found to have been for legal necessity and consideration.
At one stage learned counsel also suggested that the decree, if any, that may be passed in this case in favour of the plaintiff would not be binding against the minor son of the defendant who may subsequently institute a suit to safeguard his interest. This again is erroneous as the defendant was sued against not only in his own capacity as the executant of the suit agreement, but also as the karta of the family. A decree, if passed against him, will necessarily be binding against all members of the family who are represented through the defendant in the present suit.
11. If the defendant was alone sued in his individual capacity as the executant of the agreement, it could never be open to him to raise inadequacy of price or want of legal necessity in his defence. Such a plea is not available to one who executes an agreement. Besides, he would have met with the principles of estoppel as on his representation and on execution of the contract he had led the plaintiff to part with Rs. 2000/- in part performance of that contract on his side.
12. Thus on a consideration of all the circumstances and the evidence in the present case, it cannot but be held that the suit agreement was duly executed by the defendant for legal necessity and the consideration was adequate, and the plaintiff is entitled to specific performance of that agreement. If the defendant does not execute the sale deed on receiving the consideration due to him after deducting Rs. 2,000/- already taken by him within a period of two months from today, the trial Court will execute and register the sale deed in favour of the plaintiff at the cost of the defendant.
13. The appeal is allowed with costs.