Anil Kumar and Others vs Ranbir Singh

A.L. Bahri, J.—Vide this judgment, two Regular Second Appeals Nos. 47 and 48 of 1985 are being disposed of. These appeals have been filed by the plaintiffs whose suits were decreed by the trial court but on appeal the same was dismissed.

Ranbir Singh defendant was allotted land in village Banur. On 12th March, 1980, he agreed to sell 33 Bighas 8 Biswas of land to the Plaintiffs for a consideration of Rs. 1,10,000/-. A sum of Rs. 10,000/- was paid as earnest money. The sale was to be transacted in two instalment i.e. 24 Bighas of land was agreed to be sold by June 1, 1980 for Rs. 70,000/- i.e. Rs. 60,000/- to be paid at the time of the sale and Rs. 10,000/- already paid as earnest money. 9 Bighas 8 Biswas of land was agreed to be sold on January 1, 1981. Since Ranbir Singh agreed to sell the land to somebody else, two suits for specific performance of the contract were filed. The first suit was filed on June 11, 1980 with respect to the sale of 24 Bighas of land & the second suit was filed on January 23, 1981 with respect to 9 Bighas 8 Biswas of land. Both the suits were consolidated and tried together, after framing of the issues in the respective suits. The suits were contested on different grounds. The following issues were framed in the first suit:

Whether defendant executed the agreement to sell dated 12.3.1980 as alleged? OPP.

Whether the Plaintiffs have been and still are ready and willing to perform their part of the contract? OPP.

If Issue No. 1 is proved, whether the defendant has committed breach of the terms-of the said contract? OPP.

Whether the plaintiffs have no locus standi to file the present suit? OPP.

4-A. Whether the suit land is coparcenary property of joint Hindu Family constituted of defendant and his son Dr. Chaudhary and decree for specific performance of sale cannot legally be passed? OPD.

Relief.

The following eight issues were framed in the second suit:

Whether the defendants executed an agreement to sell the suit land, dated 12.3.1980 to the plaintiffs? OPP.

Whether the defendant received Rs. 10,000/- at the time of execution of the agreement dated 12.3.1980? OPP.

Whether the plaintiffs have always been ready and are still willing to perform their part of the agreement? OPP.

Whether the defendant has breached the contract? OPP.

Whether the plaintiffs have no locus standi to file the present suit? OPP.

Whether the defendant is entitled to compensatory costs u/s 35-A CPC? OPP.

Whether th-5 agreement dated 12.3.1980 is the result of fraud? OPD.

Relief.

As already stated above, the trial court decreed the suits. However, decree was set aside in appeal and the suits were dismissed by the lower appellate court.

Shri R.K. Battas, Advocate for the Appellants, has argued that the Vendor (defendant) could not be allowed to say that he was not competent to enter into an agreement of sale in a suit for specific performance and only such defences are available which cannot be taken up under the law relating to contracts. Reference has been made to Section 9 of the Specific Relief Act in this respect which reads as under:

Defences respect in suits for relief based on contract - Except as otherwise provided herein, where any relief is claimed under this Chapter in respect of a contract, the person against whom the relief is claimed may plead by way of defence any ground which is available to him under any law relating to contracts.

In support of this contention, reliance has been placed on the decision of this Court in Telu Ram etc. v. Tej Ram etc., RSA No. 1543 of 1984 decided on 10th September 1984. There is no merit in this contention. RSA No. 1543 of 1984, as referred to above, was dismissed in limine although the appeal was disposed of by writing a short order. From the same, it cannot be gathered that any rule of law was laid down that in a suit for specific performance relating to coparcenary property, the defendant could not take up the plea that he was incompetent to sell the same and as such the sale transaction was not for legal necessity. Shri Battas has further argued that the decision of this Court in Devi Dayal v. Manohar Lal, 1982 PLR 105, holding that where a coparcener has agreed to sell coparcenary property such a contract cannot be specifically enforced, needs reconsideration. On Perusal of the said judgment, it is noticed that the decision is based entirely on the decision of the Supreme Court in Balmukand Vs. Kamla Wati and Others, . The Supreme Court upheld the judgment of the Division Bench of this Court in Balmukand L. Hira Nand Vs. Pindi Dass (deceased) and Others, . In Balmukand''s case (supra), there was agreement to sell part of the joint Hindu family property. Since the defendant had failed to execute the sale deed in favour of the plaintiff, he filed the suit for specific performance against the vendor as well as his brothers. There was nothing in the plaint to suggest that the vendor had agreed to sell the property because he found it difficult to manage it or because he found that the family was incurring loss by retaining the property. There was nothing to suggest that the idea was to invest the sale proceeds in some profitable manner. In nutshell, there was no allegation to the effect that the sale was being contemplated by any considerations of prudence. In such circumstances, it was held that the courts below were right in dismissing the suit for specific performance. It was observed as under:

Granting specific performance is always in the discretion of the court and in case of this kind the court would be exercising its discretion right by refusing specific performance.

It was further observed that no doubt the vendor himself was bound by the contract which he had entered into and the plaintiff would have been entered to the benefit of Section 15 of the Specific Relief Act. Since in the said case there was no claim on behalf of the plaintiff that he was willing to pay the entire consideration for "obtaining a decree against the interest of the vendor alone in the property, the suit was dismissed. The perusal of the judgment reveals that as there was no allegation that the contract of sale was to the benefit of the family and there was no proof of such an allegation, suit for specific performance of the contract was dismissed. No rule of law as such was laid down that suit for specific performance of contract of sale of coparcenary property cannot be specifically enforced. In this respect, the decision of this Court in Devi Dayal''s case (supra) only needs to be explained. In Devi Dayal''s case, it has been observed that specific performance of such an agreement of sale of coparcenary property could not be enforced because the sale could be challenged by any of the other coparceners and would be set aside. These observations fully explain that such a sale could be challenged only if it was not for the benefit of the family.

Shri Battas, Advocate for the appellants, has argued that agreement of sale in the present case was in fact for the benefit of the family. The vendor, an Advocate, and his son belonging to medical profession are living at Panipat and are unable to manage the land in dispute which is situated in tehsil Rajpura. Some of the land is stated to be under the tenants. From these facts it is sought to be inferred that the sale would be for the benefit of the family. This contention cannot be accepted as there was no plea taken in the plaint that the alleged contract of sale was in fact for the benefit of the family. In the written statement, the defendant specifically took up the plea that the alleged transaction was not in the benefit of the family. In spite of that plea taken in the written statement, in the replication filed by the plaintiffs, it was not asserted that the transaction of sale was in fact in the benefit of family. In spite of the fact that there was plea in this respect, no evidence was produced by the Plaintiffs to prove that in fact the alleged contract of sale was for the benefit of the family. Even when the plaintiff entered the witness box, he did not state so. In the absence of any such plea or evidence no finding can be recorded in the present case that the alleged transaction of sale was for the benefit of the family. Learned Counsel for the appellants referred to the statements of DW2 Ranbir Singh that he did not mention that the sale was not for any legal necessity. This statement will not help the appellants as they have to stand on their own feet. They were required to plead and prove that the alleged contract of sale was for legal necessity or for benefit of the family.

Learned Counsel for the appellants also placed reliance on the decision of Delhi High Court in Ramji and Ors. v. Siri Niwas AIR 1985 Del 133. That was a case where guardian of a minor had entered into an agreement to purchase the land and as such the contract was held to be specifically enforceable. The ratio of this decision is not at all attracted to the case in hand. As observed in the judgment, under the Hindu Law, the natural guardian is empowered to enter into a contract on behalf of a minor and the contract would be binding and enforceable if the contract is for the benefit of the minor. For this proposition, a decision of the Supreme Court in Shri Manik Chand and Another Vs. Shri Ramchandra, , was relied upon.

Present is a case which is covered by ratio of a decision of the Supreme Court in Balmukand''s case (supra). Since the agreement to sell coparcenary property is not in the interest of the family, specific performance of the same cannot be ordered.

For the reasons recorded above, both the appeals are dismissed while affirming the judgment and decree of the lower appellate court dismissed the suits. There will be no order as to costs.

G.C. Mital, J.

I agree.