Bedmati (Smt.) and Others vs Khusi Ram and Others

Sunil Kumar Sinha, J.—This is the defendant''s second appeal filed u/s 100 of the Code of Civil Procedure. It arises out of the judgement & decree dated 11th of March, 1989 passed in Civil appeal no. 9-A/86 by the Third Additional District Judge, Raipur, Camp at Balodabazar. By the said judgement & decree, the learned Appellate Court set- aside the judgement & decree passed in Civil Suit No. 49-A/81 by Civil Judge, Class-1 Balodabazar, on 20.12.85, whereby respondent''s/plaintiff''s suit for specific performance of contract was dismissed. Consequently, the respondent''s/plaintiff''s suit was decreed.

The following substantial questions of law have been framed for consideration in this appeal: -

(i) Whether the lower appellate court was right in granting decree for specific performance of the contract when admittedly vendor Ghurau was not the absolute owner of the entire property?

(ii) Whether the agreement to transfer suffers from vagueness and uncertainty?

(iii) Whether the lower Appellate Court was justified in reversing the decree of the Trial Court ignoring the material evidence on record?

The facts, briefly stated are as under: -

The suit lands Khasra No. 81 & 82/2 area 0.812 hectare and Khasra No. 126/1 & 126/2 area 0.218 hectares and a house situated on a portion of said land of village Taulidih P.C. No. 149 were the self acquired property of one Chainuram. Chainuram died prior to 1956. The suit properties were succeeded by his son and wife namely Ghurau and Baiyan Bai (defendants). They were in joint possession of the suit properties. The plaintiffs filed a suit for specific performance of an agreement to sale dated 2.10.77 (Ex. P/1) executed by Ghurau in their favour for selling the suit properties to them for a consideration of Rs. 14,500/-. They pleaded that defendant No. 2, Baiyan Bai, was a consenting party to the said agreement.

According to the averments made in the plaint, out of the total consideration of Rs. 14,500/-, sum of Rs. 1,025/- was received by defendant No. 1 - Ghurau on 2.10.77 and later on he further received Rs. 7,000/- on 24.2.78, Rs. 2,000/- on 12.3.78, Rs. 700/- on 10.7.78 and Rs. 2,700/- on 12.8.78 and receipts of Ex. P/2 & P/3 were further executed. When after the agreed period, the sale - deed was not executed, the plaintiffs filed the instant suit.

The defendant No. 1 filed his written statement and denied the contentions raised by the plaintiffs. He pleaded that he was not the absolute owner of the suit properties and was having no authority to execute the agreement of the entire property. Two daughters of Chainuram namely Bindabai and Gangabai were also there, therefore, each one of them i.e. two defendants and Bindabai and Gangabai were having joint ownership and possession over the suit property to the extent of 1/4 share for each. Defendant No 2 Baiyan Bai, also supported the plea taken by her son, defendant no. 1, Ghurau, by filing her separate written statement.

Firstly, two preliminary issues were decided by the trial Court on 22.7.82 holding that the since Chainuram died prior to the commencement of the Hindu Successions Act, 1956 and his daughters namely Bindabai and Gangabai were aged about 1-2 years at the time of his death, therefore, they did not succeed to the properties of their father and were having no title in the suit properties and they were not the necessary parties in the suit. This order was not challenged separately in appeal or revision. Baiyan Bai died during the pendency of the suit, then only, Bindabai and Gangabai (appellants 6 & 7 herein) were substituted on her place. They also filed their joint written statement supporting the defence raised by the original defendants.

A criminal case (complaint) bearing No. 311/80 was filed by defendant'' No. 1 Ghurau against the plaintiff no. 3 and father of the plaintiffs Maheshram making allegations of theft of crop. In the said criminal case defendant no. 1/Ghurau appeared as a witness and admitted in the cross examination regarding agreement to sale relating to the suit properties for a consideration of Rs. 14,500/-.

The learned trial Court, after recording evidence of parties, dismissed the suit of the plaintiffs holding that the valid execution of the agreement was not proved by them.

Being aggrieved with the aforesaid judgement & decree passed by the trial court, the plaintiffs/respondent herein filed the First Appeal. Ghurau (original defendant No. 1) died during the pendency of the First Appeal and was substituted by his legal representatives/appellants 1 to 5 herein.

The First Appellate Court recorded the finding that Ghurau had executed the agreement to sale dated 2.10.77 (Ex. -P/1) and had also executed connected money receipts Ex. -P/2 & P/3 by realizing the aforesaid amount. It also held that Baiyan Bai (defendant no. 2) was a consenting party to the said agreement. About rights of two daughters of Baiyan Bai, the First Appellate Court held that their rights were finally adjudicated by the trial Court while answering the issue No. 1& 2 framed on the point of they being necessary parties and the order was not challenged in appeal or revision, therefore, the said order became final and the position settled by the trial Court while disposing of the two preliminary issues (issue No. 1& 2) cannot be re-agitated. It further held that the description of the property contained in the agreement dated 2.10.77 (Ex. - P/1) was sufficient to enforce the agreement. Holding all this, the judgement & decree passed by the Trial Court was set - aside and the plaintiff''s suit for a specific performance of agreement dated 2.10.77 (Ex. P/1) was decreed.

Mr. Parag Kotecha, learned counsel appearing on behalf of the appellants/defendants, argued that Ghurau was not the absolute owner of the suit properties, therefore, he had not right to execute the agreement for the entire property. The finding regarding consent of Baiyan Bai is perverse. The finding recorded by the Trial Court regarding rights of Bindabai and Gangabai (two daughters of Chainuram) was agitated in First Appeal and the First Appellate Court erred in law in not entering into the said controversy and deciding the rights of the respective parties in the. suit properties, which effect the rights of the vendor to execute the agreement to sale. He also argued that the description of the property was not sufficient to enforce the agreement, therefore, the reversing judgement passed by the First Appellate Court was bad in law.

On the other hand, Mr. Sanjay S. Agarwal, learned counsel appearing on behalf of the respondents/ plaintiffs, opposed these arguments and supported the judgement & decree passed by the First Appellate Court.

I have heard the learned counsel for the parties at length and have also perused the records of the civil suit as also the first appeal.

The finding of the fact that Ghurau executed the agreement to sale dated 2.10.77 (Ex. P/1) and he also executed money receipts (Ex.-P/2 & P/3) are based on sufficient evidence on record. I have gone through the entire evidence led in that behalf. The aforesaid finding cannot be said to be perverse or based on no material on record or arrived at on in- admissible evidence or ignoring any material evidence. Therefore, it has attained finality. The First Appellate Court has rightly held that the agreement to sale and money receipts were executed by Ghurau. The question arises as to whether Ghurau, not being the absolute owner of the property, was competent to execute the agreement to sale of the entire property? Firstly, we shall look into as to what was the share of Ghurau in the suit property? Admittedly the suit properties were self acquired properties of Chainuram. According to the finding recorded by the trail Court while deciding the preliminary issues on 22.7.82, Chainuram died prior to the year 1956 and at the time of his death two daughters namely Bindabai and Gangabai were aged about 1-2 years. There is no dispute that the parties are Brahman by Caste and are governed by the principles of Hindu Law and Hindu Succession Act, 1956. Admittedly, after the death of Chainuram, his two daughters Bindabai and Gangabai (appellants 6 & 7) were residing with the defendants who succeed the property of Chainuram on his death prior to 1956. Therefore, they were in joint possession of the properties since the death of their father Chainuram prior to the year 1956 till their marriages, which admittedly took place after the year 1956 i.e., after commencement of Hindu Succession Act, 1956. Therefore, by virtue of Section 14 of the Hindu Succession Act, 1956 the two daughters would also be the full owners of the properties in their respective shares after commencement of the Act, 1956. Since there were four co-owners of the suit properties on the date of execution of the agreement i.e., 2.10.77, Ghurau was not absolute owner of the properties and he was having no right or authority to execute the agreement to sale of the entire suit properties as his share was only to the extent of 1/4 in it.

So far as consent of Baiyan Bai is concerned, there is no definite evidence in this regard. The plaintiffs could not explain as to why her signature/thumb impression was not taken on the agreement to sale when in the evidence of the plaintiff''s witness Madhuram (PW-1) and Ravi Singh (PW-2, scribe) it comes that she was also present at the time of the agreement. The First Appellate court, vide Para -16 of the impugned judgement, has simply said that her presence at the time of the agreement as deposed by Madhuram (PW-1) & Ravi Singh (PW-2, scribe) would show her consent. This does not appear to be reasonable. Except the above, there is not other evidence regarding consent of Baiyan Bai about execution of the agreement to sale of the entire property by her son Ghurau (defendant No. 1). The aforesaid finding is totally perverse and the same cannot be sustained. Therefore, in my considered view, the plaintiffs failed to prove that Baiyan Bai had also given her consent to Ghurau (defendant No.1) for execution of the agreement to sale dated 2.10.77 (x. -P/1).

In view of the finding that Ghurau had 1/4 share in the properties contracted to be sold, the agreement executed by him would not bind his mother Baiyan Bai (defendant No. 2) and her two daughters Bindabai and Gangabai (appellants 6 & 7 herein). The First Appellate Court, therefore, committed manifest error of law in exercising its discretion directing specific performance of the contract for the entire property. The properties being divisible by Baiyan Bai and appellants 6 & 7 not being the consenting parties to the contract, in the facts and circumstances of the case, equity and justice demand partial enforcement of the contract, instead of refusing specific performance in its entirety, which would meet the ends of justice, accordingly, I hold that Ghurau having contracted to sell the property, it must be referable only in respect of 1/4th right, title and interest held by Ghurau/vendor and respondents/ plaintiffs would be entitled to the enforcement of the contract of l/4th share by specific performance. I am fortified in my views by the judgement of the Apex Court in Sardar Singh Vs. Smt. Krishna Devi and another, AIR 1995 Supreme Court 491, Para - 15.

In A. Abdul Rashid Khan (Dead) and Others Vs. P.A.K.A. Shahul Hamid and Others, the Apex Court held that "Even where any property is held jointly, and once any party to the contract has agreed to sell such joint property by agreement, the, even if the other co-sharer has not joined, at least to the extent of his share, he is bound to execute the sale deed. However, in the absence of the other co-sharer, there could not be any decree of any specified part of the property to be partitioned and possession given. The decree could only be to the extent of transferring the share of the vendor in such property to other such contracting party." In the said case, it was not in dispute that the appellants had 5/6th share in the property. The Apex Court said that "Therefore, the plaintiff''s suit for specific performance to the extent of this 5/6th share was rightly decreed by the High Court which required interference". While confirming the decree passed by the High Court to above extent, in Para -14 of the judgement, the Apex Court held in Para -15 that "So far as the other part of the High Court''s order by which it decreed the alternative relief of Respondent 1 for partition of the suit property in six equal shares by metes and bounds and delivering separate possession over these such shares is concerned, on the face of its, it was erroneous and cannot be sustained, in a suit for specific performance. The vendee on the date of filing this suit has not yet become the owner of this property, as he merely seeks right in the said property through the decree of specific performance. When the sale deed itself has yet to be executed, his right in the property has not yet matured, how can he claim partition and possession over it? Even after decree is passed, his right will only mature when he deposits the balance consideration and the sale deed is actually executed. This apart, how could there be any partition in the property, without the other co-sharers joining, who are not part of the disputed agreement? No issue is framed between them. No evidence led". The Apex Court held that "The High Court was not right in decreeing this alternative prayer of partition in this suit".

In view of the above, decree of the First Appellate Court may be confirmed only to the extent of l/4th share in the aforesaid property.

So far as the second question of law is concerned, we do not find any force in the argument advanced by Mr. Kotecha that the agreement suffers from vagueness and uncertainty. He submitted that there is no survey number in the agreement and the area of the land is also not given. In Mithu Khan Vs. Pipariyawali and Others, , the M.P. High Court held that in a suit for specific performance of the agreement merely because the agreement did not contain the survey number or the area, the document could not be branded as a void agreement. In villages, the lands are known by name rather than by survey number and this custom of naming a piece of agricultural land seems to be based upon legendry illiteracy of the country and the agreement could not be held to be void on this ground only." In a suit for specific performance of the agreement what is important - qua the property is the identification thereof, in case the agreement is otherwise enforceable in law. That is to say that any common man who would like to get the property can get it identified on the basis of particulars of the property mentioned in the agreement. In the present case, though survey number of the property is not mentioned in the agreement but there is sufficient description on which the property can well be identified. Therefore, the suit filed by the plaintiffs for specific performance was not liable to be dismissed on this account that the enforcement of the agreement was not possible for want of proper description of the suit properties.

So far as third question of law is concerned, learned counsel for the appellants could not point out as to which material evidence was ignored by the First Appellate Court while reversing the decree passed by the Trial Court. We find that the First Appellate Court has taken into consideration the entire evidence available on record and then has reversed the decree passed by the trial Court. Present is not a case of ignoring of material evidence.

For the foregoing reasons, the appeal is partly allowed. The decree passed by the First Appellate Court regarding specific performance of the agreement dated 2.10.77 is confirmed only to the extent of 1/4th share in the entire suit properties and the said decree stands modified as above.

The parties are directed to bear their own costs throughout.