Patna High Court
Laddu Gope vs Manoj Kuer Sharma & Ors on 7 August, 2012
Author: Vijayendra Nath
Bench: V. Nath
IN THE HIGH COURT OF JUDICATURE AT PATNA
First Appeal No.119 of 1987
===========================================================
Laddu Gope, Son of Late Kanshi Gope, Resident of Mohalla- Bhawar pokhar, P.O.-
Bankipore, P.S.-Pirbahore, Town and District-Patna( Defendant No.1)Plaintiff.
.... .... Appellant.
Versus
1. Manoj Kuer Sharma, Son of Sri Nand Kumar Sharma residing in the house of
Kumud Sammritte, Nageshwar Colony, Boring Canal Road, Police Station-
Kotwali, District-Patna.-Respondent 1st Party.
2. Sri Surendra Prasad Singh, Son of Late Dwarika Prasad Singh.
3. Sri Upendra Kumar Sinha, Son of Sri Hari Narain Prasad.
(Serial Nos.2 and 3, both resident of Salimpur Ahara, behind Reserve Bank of
India, near Alembic Compound, P.O.-Kadamkuan, P.S.-Gandhi Maidan, town
and District-Patna-(Defendant Nos. 2 and 3)................. .... Respondent/s
with
First Appeal No. 120 of 1987
===========================================================
Laddu Gope, Son of Late Kanshi Gope, Resident of Mohalla- Bhawar Pokhar, P.O.-
Bankipore, P.S.-Pirbahore, Town and District-Patna( Defendant -Appellant).
.... .... Appellant.
Versus
1. Ashwini Kr. Sharma, Son of Sri Nand Kumar Sharma residing in the house of
Kumud Sammritte, Nageshwar Colony, Boring Canal Road, Police Station-
Kotwali, District-Patna-----------------------------Plaintiff-Respondent.
2. Bangali Yadav @ Bangali Rai(father's name not known to appellant).
3. Bhagwan Yadav @ Bhagwan Rai, Son of Bangali Yadav.
Both residents of Alembic Compound Salempur Ahara, P.S.-Gandhi Maidan,
Town & District-Patna.--Defendants-Respondents(2nd party).
.... .... Respondent/s
with
First Appeal No. 121 of 1987
===========================================================
Laddu Gope, Son of Late Kanshi Gope, Resident of Mohalla- Bhawar Pokhar, P.O.-
Bankipore, P.S.-Pirbahore, Town and District-Patna( Defendant No.1) -Appellant).
.... .... Appellant/s
Versus
1. Smt. Indramani Sharma, Wife of Sri Nand Kumar Sharma, Resident of
Mohalla-Mithapur, P.S.-Jakkanpur, Town and District-Patna-Plaintiff
Respondent 1st party.
2. Bangali Yadav @ Bangali Rai(father's name not known to appellant).
3. Bhagwan Yadav @ Bhagwan Rai, Son of Bangali Yadav.
Both residents of Alembic Compound Salempur Ahara, P.S.-Gandhi Maidan,
Town & District-Patna. (Defendant nos. 2 and 3)Respondent 2nd party.
------------------------------------------------------------------------------- Respondent/s
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2 Patna High Court FA No.119 of 1987 dt.07-08-2012
2 / 23
Appearance :
(In FA No. 119 of 1987)
For the Appellant/s : Mr. KALI DAS CHATTERJEE
Mr. B.K.Bariar
For the Respondent/s : Mr. DRONACHARYA
(In FA No. 120 of 1987)
For the Appellant/s : Mr. KALI DAS CHATTERJEE
Mr. B.K.Bariar
Mr. Ajay Kumar
For the Respondent/s : Mr. DRONACHARYA
(In FA No. 121 of 1987)
For the Appellant/s : Mr. KALI DAS CHATTERJI
Mr. Ajay Kumar
Mr. B.K.Bariar
For the Respondent/s : Mr. DRONACHARYA
Mr. Rajendra Pd.
===========================================================
CORAM: HONOURABLE MR. JUSTICE V. NATH
ORAL JUDGMENT
Date: 07-08-2012
V.Nath,J. These three appeals arise out of the three judgments and decrees
dated 23.12.1986, passed by Sub Judge VII, Patna in T.S.No.73/83,
T.S.No.74/83 and T.S.No.75/83 by which the decree for specific
performance of contract has been granted to the respective plaintiffs
against the common defendant with regard to the parts of the same plot
belonging to him. All the three appeals have been filed by the
defendant Laddu Gope as appellant. As common questions of law and
fact are involved in all the three appeals, the prayer of the parties to the
appeals for analogous hearing of three appeals was allowed and
accordingly the aforesaid three appeals have been heard analogously
and are being disposed of by this common judgment.
2. In all the three suits i.e. T.S.No.73/83, T.S.No.74/83,
T.S.No.75/83, the defendants are common and the relief for specific
3 Patna High Court FA No.119 of 1987 dt.07-08-2012
3 / 23
performance of contract has been prayed against the defendant no.1,
Ladu Gope on the basis of the three registered agreements for sale
executed by him in favour of the plaintiffs. The plaintiffs also belong
to one family and are the sons and wife of Nand Kumar Sharma. In the
T.S.No.73/83 Manoj Kumar Sharma son of Nand Kumar Sharma is the
plaintiff and has claimed specific performance of contract against the
defendant no.1 on the basis of the registered agreement for sale dated
14.08.1982by which 15 Dhur, 15 Dhurki of Plot No.869 of Khata No. 66 has been agreed to be sold by the defendant no.1 for Rs. 37,800/- out of which Rs. 10,000/- has been paid as the advance money. The T.S.No.74/83 has been filed by the plaintiff Ashwani Kumar Sharma son of Nand Kumar Sharma claiming for the decree for specific performance of contract on the basis of the registered agreement for sale dated 03.08.1982 by which the defendant no.1 has agreed to sell 1 katha of Plot No.869 of Khata No.66 for total consideration money of Rs.48,000/-, after receiving Rs.12,000/- by way of earnest money. The T.S.No.75/83 has been filed by Smt. Indramani Sharma wife of Nand Kumar Sharma claiming specific performance of contract on the basis of the registered agreement for sale dated 03.08.1982 by which defendant no.1 has agreed to sell 1 katha of Plot No.869 of Khata No.66 for total amount of 48,000/-, after receiving Rs.12,000/- as advance money.
4 Patna High Court FA No.119 of 1987 dt.07-08-2012 4 / 23
3. The plaintiffs' case in all the three suits, in short, is that the defendant no.1- Ladu Gope is the owner of the suit land and has agreed to sell the same with the plaintiffs and has executed the three registered deeds of agreement for sale after taking advance money. The plaintiffs have further alleged that the sale deeds were agreed to be executed within three months after the permission from the authorities under the Urban Land Ceiling Act but after the grant of permission, the defendant no.1 started avoiding the execution of the sale deeds as agreed even after the repeated requests. Then the legal notices as well as telegrams were sent by the plaintiffs to him reiterating the request to execute the sale deeds. Ultimately the plaintiffs got a notice published in daily Hindi Newspaper ―Aryawart‖ but the defendant no.1 even thereafter failed to perform his part of contract by executing the sale deeds in favour of the plaintiffs. The plaintiffs have also averred in the plaint their continuous readiness and willingness to perform their part of the contract. On these basic facts, the three suits were filed seeking the relief.
4. The defendant no.1in his written statement has not denied the execution and registration of the deeds of agreements for sale in favour of the plaintiffs by him for the suit land but has alleged that the same have been obtained by Nand Kumar Sharma father of the plaintiffs in T.S.No.73/83 and T.S.No.74/83 and husband of the plaintiff in 5 Patna High Court FA No.119 of 1987 dt.07-08-2012 5 / 23 T.S.No.75/83 by intoxicating him with wine. It is the case of the defendant no.1 that he has got addiction for wine and taking its advantage, Nand Kumar Sharma with his sons and wife thoroughly intoxicated him and got the deeds executed by him without letting him know or understand the contents of the deeds. The defendant no.1 has further stated that the land subject matter of the three agreements for sale are the joint family properties of the defendant no.1 in which his other family members have also got shares. It has also been stated that although the agreement with Nand Kumar Sharma was to sell the suit land at the rate of Rs.1,00000/- per katha but by playing fraud the rate had been shown in the deeds of agreement for sale to be only Rs. 48,000/- per katha. The plaintiffs' readiness and willingness to perform their part of the contract has also been challenged alleging that the plaintiffs had no ready money for payment of the balance amount of the consideration.
5. The learned court below in view of the pleadings of the parties has framed the following issues which are common in all the three suits:
(i) Is the suit as framed, maintainable?
(ii) Has the plaintiff got any cause of action for the suit?
(iii) Is the suit barred by law of limitation, waiver, acquiescence and estoppel?
6 Patna High Court FA No.119 of 1987 dt.07-08-2012 6 / 23
(iv) Is the suit barred u/s 34 of the Specific Relief Act?
(v) Is the deed of contract for sale fraudulent as alleged?
(vi) Is the plaintiff entitled to get a decree for specific performance of contract in terms of the deed of agreement for sale dated 14.08.1982?
(vii) Whether time was an essence of the contract and was the plaintiff always ready to perform his part of contract?
(viii) Is the plaintiff entitled to claim damages as an alternative relief for specific performance of contract?
(ix) What other relief or reliefs, if any, the plaintiff is entitled?
6. After scrutinizing the evidence of the parties, the learned court below has disbelieved the story of execution of agreement for sale in inebriated condition as put forward by the defendant no.1 and has come to the conclusion that the deeds of agreement for sale are valid and legally enforceable document. The learned court below has further found that the plaintiffs have always been ready and willing to perform their part of the contract and discarded the case set up by the defendant that the plaintiffs had no available fund to pay the consideration money. On the basis of these main findings, all the three suits have been decreed.
7. Mr.K.D.Chatterjee, the learned counsel appearing on behalf of the appellant in all the three appeals, has firstly submitted that there 7 Patna High Court FA No.119 of 1987 dt.07-08-2012 7 / 23 is no material evidence on record to sustain the plea of the plaintiffs regarding their continuous readiness and willingness to perform their part of the contract. Elaborating his submissions, the learned counsel has urged that the provision contained in Section 16(c) of the Specific Relief Act is couched in negative and creates a personal bar to a plaintiff in obtaining a decree for specific performance of contract if he fails to aver and prove his continuous readiness and willingness to perform his part of the contract. The learned counsel has propounded that the word ―readiness‖ as used in the provision connotes the physical preparedness to pay the consideration money if that is the part to be performed by a plaintiff in a suit for specific performance of contract based on agreement for sale of immovable property. The bald statement in the pleading or in deposition by the witnesses, it has been submitted, is not sufficient to establish the readiness, and the plaintiff is also required to produce cogent material evidence to show that the necessary amount of consideration money is ready with him. It has been submitted that in this case the defendant in his written statement has clearly stated that the plaintiffs had no ready money to pay the balance amount of consideration but no evidence has been adduced by the plaintiffs to establish the availability of the necessary fund with them by producing the bank documents or any other material in that regard. Questioning the legal pregnability of the finding on this count, 8 Patna High Court FA No.119 of 1987 dt.07-08-2012 8 / 23 the learned counsel has further argued that the learned court below has overlooked these vital lacunae in the evidence of the plaintiffs and has come to the wrong conclusion that the plaintiffs have all along been ready and willing to perform their part of the contract.
8. The second limb of the submission of the learned counsel for the appellant is confined to the F.A.No.119/87 and 120/87 arising out the two suits filed by the plaintiffs as minors through their grand father acting as their next friend and guardian. It has been submitted by the learned counsel that after coming into force of the Hindu Minority and Guardianship Act, 1956, no other person, except the persons mentioned in Section 6 of the said Act can act as a guardian of a minor. The contention therefore is that the agreements for sale dated 14.08.1982(Ext.2 in T.S.No.73/83) and agreements for sale dated 03.08.1982(Ext.1 in T.S.No.74/83) have been entered into by the minors through their grand father even when admittedly their father and mother were alive on that date and as such these agreements being illegal and void ab initio cannot be legally enforceable. It has been further urged that although this issue was not raised by the defendant no.1 in his written statement in the two suits but in view of the admitted facts, this question can be raised for the first time in appeal as it pertains only to a question of law. Several decisions have been cited by the learned counsel to buttress his submissions which shall later be 9 Patna High Court FA No.119 of 1987 dt.07-08-2012 9 / 23 referred to appropriately.
9. Per contra, Mr. Dronacharya, the learned counsel appearing on behalf of the plaintiff-respondents in all the three appeals, has submitted that besides pleading their continuous readiness and willingness to perform their part of the contract, the plaintiffs have adduced sufficient cogent evidence to establish the said fact. It is the contention of the learned counsel that the readiness and willingness as required under Section 16(c) of the Specific Relief Act is not an abstract term to be determined in isolation but has necessarily to be gathered from the attending circumstances. Learned counsel has canvassed that it is not the requirement of law that a plaintiff must produce or deposit the money in Court in order to establish his readiness to pay the balance consideration money, and it is the conduct of the plaintiff which is the determinative factor. The repeated legal notices to the defendant no.1, publication of notice in the daily newspaper, sending the message through telegram and obtaining the permission from the competent authority for sale of the suit lands and execution of the sale deeds, it has been argued, are the factors which inescapably lead to the conclusion that the plaintiffs have always been ready and willing to perform their part of the contract and the learned court below has rightly come to the said conclusion on the basis of the materials on the record.
10 Patna High Court FA No.119 of 1987 dt.07-08-2012 10 / 23
10. Replying to the submission pertaining to the minority of the plaintiffs in T.S.No.73/83 and T.S. No. 74/83, learned counsel has pointed out that a de facto guardian has not been completely excluded by the provisions of Hindu Minority and Guardianship Act, 1956 to act for the benefit of a minor. It has been submitted that the doctrine of mutuality in a contract is no longer applicable in India and there is no bar to a minor from entering into contract for the purchase of the property through a de facto guardian which, in the present case, is non else then the grand father of the plaintiffs. It has been further urged that in any view of the matter a vendor cannot be allowed to raise this objection which is available only to the minor or his natural guardian. Pointing out that the consent of the father of the plaintiffs is manifest when he has sworn affidavit to the plaints of the title suits and has also deposed as a witness in the suits and on this basis it has been submitted that this plea as a defence is not available to the appellant either on facts or in law.
11. In view of the rival contentions of the parties, the following points arise for consideration in this appeal:-
(i) Whether the plaintiffs in all the three suits have succeeded in establishing their continuous readiness and willingness to perform their part of the contract, as required under Section 16(c) of the Specific Relief 11 Patna High Court FA No.119 of 1987 dt.07-08-2012 11 / 23 Act?
(ii) Whether the plaintiffs in T.S. No. 73/83 and T.S.No. 74/83 have the legal competence to enter into the agreement with the defendant no.1 for the purchase of the suit land through their grand father acting as their guardian and whether the said agreements can be legally enforced by the plaintiffs?
12. Point No.1: On behalf of the appellant it has not been disputed that the appellant is the owner of the suit land and has executed the agreements for sale of the parts of the suit land in favour of the plaintiffs of T.S.No.73/83, T.S.No.74/83 and T.S.No.75/83. It has also not been disputed that the plaintiffs of all the three suits are members of one family and the suit lands in the three suits are parts of the same Plot No.869. From the recital of the agreement for sale dated 14.08.1982(Ext.2 in T.S.No.73/83) it appears that 15 Dhurki , 15 Dhur of land of Plot No.869 has been agreed to be sold for total consideration money of Rs.37,800/- out of which Rs.10,000/- has been paid by way of advance. The agreement for sale (Ext.1 in T.S.No.74/83) shows that an area of 1 katha of land of Plot No.869 has been agreed to be sold for total consideration amount of Rs. 48,000/- out of which 12,000/- has been paid as advance. Similarly in T.S.No.75/83, the agreement for sale (Ext.2) shows that an area of 1 12 Patna High Court FA No.119 of 1987 dt.07-08-2012 12 / 23 katha of Plot No.869 has been agreed to be sold for Rs.48,000/- out of which Rs.12,000/- has been paid as the earnest money. In their plaints the plaintiffs have stated that they have always been ready and willing to perform their part of the contract. The defendant no.1 on the other hand, in his pleading has firstly disputed the agreed amount of the consideration money as mentioned in the deeds of the agreement for sale and has further denied his exclusive ownership over the suit land asserting the same to be his joint family property. He has also raised the defence that the plaintiffs have failed to perform their part of the contract within time when the time was the essence of the contract as they had no ready money to pay to the defendant and get the sale deeds executed.
13. The plaintiffs have stated in the plaint that according to the agreed terms, the sale deed was to be executed within three months from the date of permission from the Ceiling Authorities under Urban Land Ceiling Act and as such the applications for permission, though was filed in the name and under the signature of the defendant no.1 but the plaintiffs pursued the said application and by dint of the efforts of the plaintiffs, the permission was granted on 06.11.1982. The defendant no.1 in his written statement has not denied the fact that the permission has been granted to him to sell the suit land to the plaintiffs. The plaintiffs, thereafter, have asserted to have sent lawyer's notice 13 Patna High Court FA No.119 of 1987 dt.07-08-2012 13 / 23 dated 10.12.1982 to the defendant no.1 after his protracting attitude to act in accordance with the agreed terms of the agreements for sale. The plaintiffs have further stated to have sent a telegram on 01.01.1983 to the defendant no.1 and thereafter another lawyer's notice dated 31.01.1983 to him. Then the plaintiffs also got notice published in the local Hindi Newspaper ―Aryawart‖. The lawyer's notice, the telegram and the publication of notice in the newspaper have been brought on record as evidence by the plaintiffs. In all these documentary evidence, the plaintiffs have consistently stated that the consideration money has been ready with them, and have requested the defendant no.1 to execute the sale deed after receiving the same. The fact of purchase of requisite non-judicial stamps from the treasury on 19.11.1982 by the plaintiffs for the purpose of the execution and registration of the sale deeds has also been mentioned in the lawyer's notice.
14. Besides the aforesaid documentary evidence, the oral evidence has also been adduced on behalf of the plaintiffs to establish their readiness and willingness. The P.W.1, Mamraj Sharma, who is the grand father of the plaintiffs in T.S.No.73/83 and T.S.No.74/83, has stated that he has got ready money with him for purchasing the land in question, although he has also said that he has no documentary proof to support the said fact. The P.W.2 Nand Kumar Sharma is the father of the plaintiffs in T.S.No.73/83 and T.S.No.74/83 and he has 14 Patna High Court FA No.119 of 1987 dt.07-08-2012 14 / 23 categorically stated that he has all along been ready with the money to pay to the defendant no.1 for the execution of the sale deeds as per the agreements. He has further stated that he has also filed the application to the manager of the Bank of India for providing him the monthly statement of account but the same could not be made available to him and the duplicate passbook also could not be made available to him till the date of the deposition, due to the strike of the bank staffs. He has produced the letter written to the manager of the bank in this regard as evidence. He has also stated to have got the two notices sent by the lawyer to the defendant no.1 and thereafter sending the telegram to the defendant no.1 and publication of the notice in the daily newspaper which all contained the statement of readiness to pay the balance consideration money. P.W.3 Satynarayan Mishra in his deposition has stated that he accompanied Nand Kumar Sharma to the defendant no.1 where he requested him for executing the sale deed after receiving the consideration amount.
15. Learned counsel for the appellant has put much emphasis on the fact that P.W.2 Nand Kumar Sharma has stated to have a bank account but has failed to produce the passbook of the said account or the statement of account, and has submitted, therefore, that an adverse inference should have been drawn against the plaintiffs and it should be held that no funds were available with the plaintiffs for paying the 15 Patna High Court FA No.119 of 1987 dt.07-08-2012 15 / 23 balance consideration amount till the hearing of the suit. It is worth noting however that there was no prayer made on behalf of the defendant no.1 in the suit for direction to the plaintiffs to produce the pass book of the bank account or the statement of the account. Mere failure by the plaintiffs to produce the bank documents in absence of the prayer by the defendant no.1 for such production will not lead to drawing of adverse inference pertaining to the non-availability of the funds and the incapacity of the plaintiffs to pay the consideration money. The Hon'ble Supreme Court in the case of Indra Kaur Vs. Shivlal Kapoor, 1988(2)SCC 488, in almost similar circumstances, has considered the question of drawing of adverse inference against the plaintiff for his failure to produce the passbook of his bank account in order to establish his capacity to pay the consideration amount for establishing his readiness and willingness. It has been held by their lordships that when the plaintiff was not called upon to produce the passbook either by the defendant or by the Court, no adverse inference could have been drawn to infer non-availability of the requisite fund with him. Their Lordships have relied upon the decision in the case of Most. Ramrati Kuer Vs. Dwarika Prasad Singh, AIR 1967 SC 1134 and have quoted its relevant paragraph which is as follows:-
―Fourthly, it is urged that the respondents did not produce any accounts even though their case was that accounts were maintained
16 Patna High Court FA No.119 of 1987 dt.07-08-2012 16 / 23 and that Basekhi Singh used to give maintenance allowance to the widows who were messing separately. It is urged that adverse inference should be drawn from the fact that accounts were not produced by the respondents and that if they had been produced that would have shown payment not of maintenance allowance but of half share of the income to the widows by virtue of their right to the property. It is true that Dwarika Prasad Singh said that his father used to keep accounts. But no attempt was made on behalf of the appellant to ask the court to order Dwarika Prasad Singh to produce the accounts. Adverse inference could only have been drawn against the plaintiffs-respondents if the appellant had asked the court to order them to produce accounts and they had failed to produce them after admitting that Basekhi Singh used to keep accounts. But no such prayer was made to the Court, and in the circumstances no adverse inference could be drawn from the non-production of accounts. But it is urged that even so, the accounts would have been the best evidence to show that maintenance was being given to the widows and the best evidence was withheld by the plaintiffs and only oral evidence was produced to the effect that the widows were being given maintenance of Basekhi Singh. Even if it be that accounts would be the best evidence of payment of maintenance and they had been withheld, all that one can say is that the oral evidence that maintenance was being given to widows may not be acceptable; but no adverse inference can be drawn(in the absence of any prayer by the appellant that accounts be produced) that if they had been produced they would have shown that income was divided half in accordance with the title claimed by 17 Patna High Court FA No.119 of 1987 dt.07-08-2012 17 / 23 the appellant.‖ (emphasis added)
16. From the above pronouncement of law, it is clearly discernible that the non-production of the bank documents by the plaintiffs will not necessarily lead to the inference of non-availability of the requisite funds with them and thus there is no force in the submission of the learned counsel for the appellant in this regard.
17. It has been well settled by now that the factum of readiness and willingness is to be adjudged on the basis of the conduct of the parties and attending circumstances, and the apex court has also repeatedly laid down that there cannot be a strait-jacket formula to test the readiness and willingness which has necessarily to be adjudged from the entirety of the facts and circumstances of the case. The reference in this regard may be made to the law laid down by a three Judge Bench of the Apex Court in the case of R.C. Chandiok Vs. Chunilal, 1970(3) SCC 140.
18. From the materials on the record, it is graphically clear that firstly the plaintiffs have made the necessary pleading of their readiness and willingness to perform their part of the contract. Thereafter in the two legal notices sent by the plaintiffs, it has been specifically mentioned that the plaintiffs were ready with the remaining amount of the consideration money to be paid to the defendant no. 1 on the date of execution of the sale deed. It has further 18 Patna High Court FA No.119 of 1987 dt.07-08-2012 18 / 23 also been mentioned there that the requisite non-judicial stamps had been purchased from the Patna Treasury Office on 19.11.1982. In the telegram sent to the defendant no. 1 by the plaintiffs on 01.01.1983 also the fact that the consideration money was ready, had been mentioned. In view of the recalcitrant attitude of the defendant no. 1, the plaintiffs also got the notice published in the daily newspaper informing the public at large regarding the agreement for sale of the suit land, obviously for the purpose of obviating transfer of the suit land by the defendant no.1. These steps taken by the plaintiffs, in order to get the sale deed executed by the defendant as agreed, are definite pointers to the readiness and willingness of the plaintiffs and are clearly incompatible with the case of non-availability of the ready funds as made out by the defendant no. 1 to resist the prayer for specific performance. The defendant no.1 has accepted the execution of the agreements for sale and their registration and has also accepted that he received the telegram of the plaintiffs requesting him to execute the sale deeds after receiving the balance consideration money as the permission had been granted. It is nowhere the case of the defendant no.1 that the plaintiffs were financially incapable to pay the balance consideration money and the only plea which has been taken is that there was no ready money with the plaintiffs. But the defendant no.1 has nowhere disclosed the basis on which he came to gather the 19 Patna High Court FA No.119 of 1987 dt.07-08-2012 19 / 23 impression that the plaintiffs had no ready fund to pay the consideration money. This aspect assumes relevance as it is not the case of the defendant no.1 that at any point of time he asked the plaintiffs to pay the balance amount of consideration which they failed. Further, there is complete absence of pleading or evidence on the part of the defendant no.1 displaying, at least, his positive response to the request of the plaintiffs for execution of the sale deeds, as demonstrated by the legal notices and the telegrams. The defendant no.1, in his deposition, has accepted that even after having the knowledge of the fraudulent nature of the agreements for sale obtained by the plaintiffs by intoxicating him, he did not file any case against the plaintiffs or Nand Kumar Sharma or took any steps against them. He had never offered to return the advance amount which he had received at the time of the execution of the agreement for sale rather had accepted to have taken the scooter of Nand Kumar Sharma which according to the plaintiffs he took for going to Sasural. All these facts only demonstrate that the conduct of the defendant no.1 had not been above blemish and the plea of non-availability of ready fund with the plaintiffs has been raised only for the purpose of litigation. No reliable evidence has also been adduced by the defendant no.1 to establish that the time had been agreed to be the essence of the contract and he had incurred loss due to non-performance of the 20 Patna High Court FA No.119 of 1987 dt.07-08-2012 20 / 23 agreement within time. These facts and evidence lead to the inescapable conclusion that the plaintiffs have all along been ready and willing to perform their part of the contract and it was really the defendant no. 1 who has failed to perform his part.
19. The learned court below has also scrutinized the evidence of the parties in this regard and has rightly come to the conclusion that the plaintiffs have all along been ready and willing to perform their part of the contract and the relief claimed by the plaintiffs is not barred under Section 16 (c) of the Specific Relief Act. This point is, therefore, decided against the appellant.
20. Point No.2: The agreement for sale sought to be enforced in T.S. No. 73/83 and 74/83 has been executed by the defendant no. 1 in favour of the plaintiffs represented by their grand father as they were minors. It has been submitted on behalf of the appellant that such agreements for sale are not enforceable as the grand father of the plaintiffs could not have acted as guardian of the plaintiffs in view of the provision of Section 6 of the Hindu Minority and Guardianship Act 1956 which postulates that a minor can be represented only by his father and after him by his mother. The learned counsel has placed reliance upon the decision of the Apex Court in the case of Manik Chand Vs. Ramchandra A.I.R. 1981 SC 519 in support of his contention that the guardian of a minor alone has been recognized for 21 Patna High Court FA No.119 of 1987 dt.07-08-2012 21 / 23 the purpose of entering into contract on behalf of the minor.
21. The provision of Hindu Minority and Guardianship Act 1956 has been enacted to protect the minor's estate and his welfare. Section 4 of the said Act defines ―guardian‖ as a person having the care of the person of a minor or of his property or both his person and property and includes a natural ―guardian‖ besides the other categories of guardians mentioned therein. Section 6 of the said Act further provides that the natural guardians of a Hindu minor, in respect of his person or property, will be his father and after him his mother. However, Section 11 of the said Act prohibits the de facto guardian of a minor to deal with the property of a Hindu minor, and the said right has been exclusively given to the natural guardian empowering him to do all acts which are necessary, reasonable and proper for the benefit of the minor or for the realization and protection or for the benefit of the minor's estate. Thus, all these provisions relate to the prohibition in dealing with the minor's property to the detriment of minor's interest or welfare. There is no provision in the Act which prohibits an action which is apparently for the benefit of the minor whereby a minor seeks to acquire property.
22. From the facts of the case, it is manifest that the defendant no. 1 has accepted that Nand Kumar Sharma who is the father of the plaintiffs has made the negotiations for purchase of the suit land and at 22 Patna High Court FA No.119 of 1987 dt.07-08-2012 22 / 23 his instance the agreements for sale have been executed. In his written statement as well as in his deposition the defendant no. 1 has described the role played by the said Nand Kumar Sharma in getting the agreements for sale from the defendant no.1. It is not the case of the defendant no. 1 that he was not aware that the agreements for sale have been executed in the names of the minors represented by their grand father as guardian. From the perusal of the contents of the agreement for sale also nothing appears to be prejudicial to the interest of the minors, and even otherwise also such an objection could have been raised only by the minors or their natural guardian but to the contrary the minors and their father are striving to get the contract specifically performed by the defendant no.1. Apparently, the enforcement of the agreement for sale is for the benefit of the minor- plaintiff and the defendant no. 1 cannot have the locus standi to resist the enforcement on this ground. Even the case of Manik Chand's case (Supra) relied on behalf of the appellant, the Apex Court has observed as follows:-
".......It appears quite strange that the respondents should plead that the transaction is not for the benefit of the minor when the minor is convinced that it is in his benefit and that it is worth pursuing the litigation up to this Court. It is common knowledge that the prices of immovable property have been on the rise and there can be no doubt that the transaction is for the benefit of the minor...."
23 Patna High Court FA No.119 of 1987 dt.07-08-2012 23 / 23
23. It would be apposite to take notice of another decision by the Apex Court in the case of K. Balakrishnan Vs. K. Kamalam [2004(2) PLJR (SC) 44] where, while considering the disability of a minor from entering into a contract, it has been laid down as follows:-
"...... The position in law, thus, under the Transfer of Property Act read with the Indian Contract Act is that the acquisition of property being generally beneficial, a child can take property in any manner whatsoever either under intestacy or by Will or by purchase or gift or other assurance inter vivos, except where it is clearly to his prejudice to do so...."
24. In view of the aforesaid reasons and discussions, it is held that the specific performance of contract as prayed for in the two suits are definitely for minors' benefit and interest and the same cannot be denied at the instance of the defendant no.1 -appellant on the ground that the agreement has been entered into by the minor through their grand father as guardian. This point is, thus, decided against the appellant.
25. In the ultimate eventuate, the three appeals, being sans substratum are, accordingly, dismissed. The impugned judgment and decree in the three appeals are upheld. In the facts and circumstances of the case there shall be no order as to cost.
Patna High Court. (V. Nath, J) Dated the 07th August, 2012. Nitesh/N.A.F.R.