Patna High Court
Mostt. Sakuntala Devi And Ors. vs Hardeo Rai on 16 November, 2006
Equivalent citations: 2007(1)BLJR284, 2007(2)CTLJ97(PAT)
Bench: Barin Ghosh, Madhavendra Saran
JUDGMENT
Barin Ghosh and Madhavendra Saran, JJ.
Page 0285
1. There . must be three "Ps" in order to constitute an agreement for sale. The first P. represents the parties, who must be identified. The second P. represents the property, which must be specified. The third P. represents the ascertained price, agreed to be paid.
2. Every agreement, however, is not a contract. In order to be a contract, the consideration or object of the agreement must be lawful. If the object of the agreement is to cause injury to the person or property of another, the agreement does not become a contract.
3. Only such agreements, which are contracts, can be enforced by specific performance. The court will, therefore, not decree a suit for specific performance where the consideration or object of the agreement is not lawful. The court will also not grant a decree for specific performance, as claimed, when to the notice of the court the decree would become a futile decree. Therefore, when the plaintiff seeks the defendant to execute a sale deed pertaining to a property belonging to a 3rd party the court will not decree such suit.
4. In the instant case there is an agreement in writing which admittedly contains the left hand thumb impression of the defendant. It records that the property agreed to be sold thereby has been obtained by the defendant on the basis of a family settlement, interse the members of the joint family, to which the defendant belongs. The consideration as fixed was Rs. 25,000/- and it acknowledged that a sum of Rs. 16,000/- has been paid as earnest.
5. In the suit for specific performance launched by the plaintiff, the defendant contended that his left hand thumb impression on the agreement in writing was obtained by force and that the defendant is a coparcener of a Mitakshra family which is still joint and no partition as yet has taken effect amongst the coparceners of the said family and further that the property in question belongs to the said joint family.
6. In relation to the agreement in writing, the defendant, therefore, purported to take shelter under the principle of nonest factum and thereby took the defence of confession and avoidance. Naturally, the onus lay upon the defendant.
7. In order to demonstrate that the agreement in writing was obtained by the plaintiff by force, the story, as made out, was that the plaintiff, the defendant and two others were going to Gangasagar but midway through at Kolkata plaintiff lost Rs. 16,000/- and accordingly, the group proceeding to Gagngasagar came back without going there and after reaching the village, the plaintiff held out that the said sum of Rs. 16,000/- has been stolen by the defendant. On such plea on the threat of gun the Page 0286 plaintiff and his associates obtained the left hand thumb impression of the defendant on a plain paper which was later on converted into the purported agreement. In order to substantiate this story the defendant deposed himself and requested one Gita to depose on his behalf. Admittedly, Gita was not a member of the group which was going to Gangasagar, which came back from Kolkata. No-one of the said group was examined by the defendant and what was stated by the defendant, the same was repeated by Gita from the witness box. It was stated that the plaintiff and his associates on gun point obtained the thumb impression of the plaintiff on the agreement near the village temple. The trial court found that in relation to the alleged extraction of the left hand thumb impression on a blank white paper, the defendant did not lodge either a FIR or a complaint case. The defendant, therefore, in the opinion of the trial court, failed to prove his case.
8. Inasmuch as the left hand thumb impression of the defendant on the agreement was upheld and inasmuch as, it could not be proved that such thumb impression was obtained by force, the one and the only logical conclusion, to which the trial court could reach in the circumstances, was that the defendant with his freewill and consent gave his left hand thumb impression on the agreement. In consequence thereof, the contents of the agreement stood proved.
9. It is true that the defendant alleged and sought to contend that the defendant is still joint with his other two brothers and father in relation to the property, which is part of the joint family property, and accordingly, the property agreed to be sold by the agreement could not be sold by the defendant alone, but then the fact remains that the defendant in the agreement itself represented that the property he has agreed to sell has been obtained by him as his allotment of the joint family property by virtue of a partition. The defendant was, therefore, estopped by his representation from contending otherwise. He was not entitled to lead any parol evidence contrary to what he had represented and recorded in the agreement.
10. It is well settled that actions by strangers do not affect the true owners. It may be possible that the defendant in fact made incorrect representation. While the representation as made by him is binding on him, such representation may not be binding on his other two brothers and father, if in fact no partition has taken place. However, when the defendant held out by the representation, which though may be untrue, that there has been a partition and on partition in his allotment he has received the property in question, the same denotes that he wanted to convey to the plaintiff his entire interest in the property in question.
11. A coparcener of a Mitakshra Hindu family by birth acquires a right in the joint family properties belonging to the said family to the extent of his share therein. Until such time such right is exercised, the Karta of the family on his behalf and on behalf of all other coparceners manages the joint family properties. A coparcener, therefore, is in fact a joint owner of the family properties. He has, therefore, right to enforce his share in the joint family properties by asking for partition. It is now well settled in law that a coparcener even before partition can sale his share in the joint family properties to the extent he desires to sale.
12. Therefore, the defendant having made the representation in the manner as indicated above, which representation though may be held to be incorrect at a later point of time, he clearly intended to sell in entirety his interest in the subject property.
Page 0287
13. We, therefore, are of the view that there being no issue that the plaintiff was not ready, willing or able to discharge his obligations under the agreement and he having had called upon the defendant to discharge his part of the obligations thereunder, the plaintiff was entitle to a decree for specific performance as was awarded by the learned trial court.
14. In the First Appeal this has been upset by the First Appellate court not on the ground that agreement is void, but merely on the ground that the defendant was unable to sell joint family property.
15. For the reasons already indicated above, We do not agree with the learned Appellate Court. Accordingly, We allow the appeal and set aside the judgment of the Appellate Court and restore the judgment and decree passed by the trial court.