Dulhin Rajkishore Kuer vs Muhammad Qaiyum and Others

Chatterji, J.—This is an appeal by the plaintiff in a suit for specific performance of a contract for sale. The terms of the contract are embodied in a registered deed, dated 11th June 1934, executed by the defendants first party (defendants 1 and 2) in favour of the plaintiff. The property agreed to be sold is 2 annas 8 pies and odd share of the proprietary interest in Mauza Rupauli Buzurg and the consideration was settled at Rs. 3150. The defendants second party (defendants 3 to 10) were mortgagees of the property in question: At the time of the contract, the plaintiff paid Rs. 200 as earnest-money and it was agreed that, out of the balance, Rupees 1501-6-6 would be retained by the plaintiff for payment to the mortgagees (defendants second party) and the remaining amount would be paid in cash on execution and registration of the sale deed. The sale was to be completed by 30th September 1934. Stamps were purchased for the sale deed on 16th June 1934, and the plaintiff''s case is that she repeatedly requested the defendants first party to execute and register the sale deed; bat, instead of doing that, they executed a sale deed in favour of the defendants second party which was registered on 9th August 1934. This sale deed purports to have been executed on 16th April 1934, but the plaintiff alleges that it was in fact executed on 2nd August 1934, and the deed was fraudulently ante-dated. The defendant first party having ultimately refused to execute the sale deed in favour of the plaintiff, she brought the present suit. Besides claiming specific performance, she prayed in the alternative for refund of the sum of Rs. 200, which she had paid as earnest-money, together with interest and further compensation from the defendants first party.

The suit was contested by both sets of defendants on various grounds. One of them was that the defendants second party were themselves cosharers of the village Rupauli Buzurg to the extent of more than 8 annas, and, as such, they had a right of pre- emption. Consequently the plaintiff was not entitled to specific performance. The defendant first party also asserted that the plaintiff was not entitled to any compensation.

At the trial it was conceded that the defendants second party had a right of pre-emption. The plaintiff also asserted a similar right. It was further asserted on her behalf that the defendants second party had waived their right of pre-emption.

The learned Munsif, who tried the suit, decided all the other issues in favour of the plaintiff, but held that the defendants second party had a right of preemption and this right was not waived by them. In this view he refused to decree specific performance and passed a decree against the defendants first party for the refund of the sum of Rs. 200 with interest thereon from the date of the contract to the date of the decree and also for recovery of interest on Rs. 2950; the balance of the consideration money which the plaintiff is said to have kept ready for payment to the defendants second party in case they executed and registered the sale deed in terms of the contract. He further granted a decree for Rs. 100 as damages which the plaintiff is said to have incurred in connection with a criminal case which was started with respect to the ante-dating of the sale deed of the defendant second party.

From this decree two appeals were filed in the lower appellate Court, one by the plaintiff and the other by the defendants first party. The learned Subordinate Judge who heard the appeals, dismissed that of the plaintiff and decreed that of the defendants first party in part. He limited the decree for compensation passed by the Munsif to the sum of Rs. 200, which had been paid as earnest-money, together with interest thereon. The plaintiff, being dissatisfied with his decision, has preferred this second appeal.

Mr. Nirsu Narain Sinha on behalf of the appellant contends, in the first place, that, both the plaintiff and the defendants second party being Hindus, there could be no right of pre-emption, and, in any case, a specific issue ought to have been raised on the point. The defendants second party, in para. 21 of their written statement, alleged that they had got the right of pre-emption. At the trial, their right was not denied. The learned Munsif in shis judgment observes "that the vendees have this Tight is not denied." On the other hand, the plaintiff herself claimed a right of pre-emption which, however, is the second and third class known as shafi-i-khalit and shafi-i-jar. The right claimed by the defendants second party, on the other hand, is of the first class known as shafi-i-sharik. It is a well known rule of Mahomedan law that the right of the first class must prevail over the right of the second or third class. The trial proceeded on the footing that the defendants second party had the light of pre-emption. In the appellate Court also, as it appears from the judgment, the right of preemption claimed by the defendants second party was not disputed. While dealing with the question, the Subordinate Judge observes:

It is needless for me to repeat the discussion here specially when the learned pleader for the appellant (in Title Appeal No. 24 of 1938 this was the appeal filed by the plaintiff) has not, in his argument, controverted the above fact.

It is thus clear from the judgments of both the Courts below that the right of pre-emption claimed by the defendants second party was never disputed. The question that was pressed in the Courts below was whether the defendants second party had waived their right of pre-emption.

It is argued that the Mahomedan law of pre-emption does not apply to the Hindus, and, if such a right is claimed by the Hindus it must be a customary right. But no customary right was pleaded in this case: all that the defendants second party in their written statement said was "for this reason these defendants have got the right of pre-emption." It is, therefore, contended that the concession that was made in the Courts below must have been made by the lawyer and it cannot be binding on the plaintiff. It is suggested that there is no evidence to support the finding that the defendants second party have got the right of pre-emption. But in the grounds of appeal no such objection has been taken and no special certificate has been given, as required by the rules. It, however, transpires on examination of the evidence that, as a matter of fact, Sitaram (defendant 3), who gave evidence, did state that he had the right of pre-emption. It is, therefore, futile to contend that there is no evidence on the record to justify the finding.

It has been settled by judicial decisions that, in Bihar the Hindus have got the right of pre-emption. In Jadu Lal Sahu v. Janki Koer 39 Cal. 915, a case which arose from the District of Champaran, their Lordships of the Privy Council held:

The Mahomedan law of pre-emption has long been judicially recognized as existing among the Hindus in Bihar, to which the District of Champaran appertains.

Their Lordships referred with full approval to the decision of the Full Bench of the Calcutta High Court in Fakir Rawot v. Emambakhsh (1863) B.L.R. Sup. 35, in which Sir Barnes Peacock, the Chief Justice, who delivered the judgment, said:

A right or custom of pre-emption is recognized as prevailing among Hindus in Bihar and some other provinces of Western India; that in District where its existence has not been judicially noticed, the custom will be matter to be proved; that such custom, when it exists, must be presumed to be founded on, and co-extensive with, the Mahomedan law upon that subject, unless the contrary be shown.

With regard to this decision their Lordships of the Privy Council said:

In their Lordships judgment the decision in Fakir Rawot v. Emambakhsh (1863) B. L.R. Sup. 35 is conclusive on the point raised on behalf of the defendants.

In that Full Benoh case a number of earlier cases were reviewed. This Court in Tokh Narain Puri Vs. Ram Rachhya Singh and Others, , held: "The Mahomedan law relating to pre emption applies also to Hindus in Bihar." It is, therefore, perfectly clear that the judicial decisions have recognized that the Mahomedan law of pre-emption does apply to Hindus in Bihar. Mr. Nirsu Narain Sinha argues that the Mahomedan law of pre emption is applicable to those parts of Bihar which were formerly included within the Suba of Bihar. In support of this contention he relies on a passage in Jadu Lal Sahu v. Janki Koer 35 Cal. 575 a decision of the Calcutta High Court which was affirmed on appeal by the Privy Council in Jadu Lal Sahu v. Janki Koer 39 Cal. 915, cited above. He has not, however, been able to show that the District of Darbbanga, from which the present case comes, is outside, the old Suba of Bihar. One of the earliest cases referred to by the Calcutta High Court in Jadu Lal Sahu v. Janki Koer 35 Cal. 575, was the case in Meethun Lal v. Deo Murat 6 Sel. Rep. 197. This was a case from Tirhoot Darbhanga is in the division of Tirhoot. From the Bengal District Gazetteer, Darbhanga, p. 20, it appears that "Darbhanga passed with the rest of Bihar under British rule in 1764." There can, therefore, be no doubt that Darbhanga is within the old Suba of Bihar. Mr. Nirsu Narain Sinha, relying on the passage "in districts where its existence has not been judicially noticed, the custom will be matter to be proved" in Fakir Rawot v. Emambakhsh (1863) B. L.R. Sup. 35 cited above, argues that there being no judicial decision in which the custom of pre-emption in Darbhanga has been recognized, it is for the defendants second party to prove that the custom does exist in that District. But I'' have already referred to the case in Meethun Lal v. Deo Murat 6 Sel. Rep. 197, a case from Tirhoot. It may, therefore, be taken that the custom of preemption has been judicially recognized as existing among the Hindus in Darbhanga.

The contention that the defendants second party have not established the customary right of preemption must fail.

The next contention of Mr. Nirsu Narain Sinha is that the plaintiff would have a good defence, if the defendants second party were to bring a suit for enforcing their alleged right of pre-emption. It is said that the evidence on the record indicates that the defendants second party did waive their right of pre-emption. But the question of waiver was raised in both the Courts below and has been decided against the plaintiff. It is, however, said that, as there was no issue regarding waiver, the plaintiff did not adduce all the necessary evidence on the point. It is pointed out that the evidence, which is now regarded as evidence on the question of waiver, was adduced by the plaintiff in order to show that the defendants second party practised fraud in the matter of ante-dating their sale deed. This, however, is not correct. As a matter of fact, the plaintiff''s husband, Bamnandan, who gave evidence for the plaintiff, stated that, when he approached Sitaram (defendant 3) to ascertain the amount of his mortgage dues and told him that he was going to purchase the property, Sitaram said that he would be content with his money and would have no objection if the plaintiff purchased the property. This evidence was given apparently to prove waiver. Both the Courts below have definitely disbelieved this evidence. Both of them have come to the finding that there was no waiver. As regards the complaint that the plaintiff could not adduce all necessary evidence because there was no issue raised on the question of waiver, it is to be observed that neither in the memorandum of appeal in the Court below nor in that filed in this Court was any such objection taken. The plaintiff herself raised the question of waiver in both the Courts and there was no suggestion that she was misled by the omission to frame a specific issue on the point. When evidence was given and the question was raised in both the Courts below, the decision cannot be assailed merely because there was an omission to frame a specific issue on the point. No prejudice has been shown and Section 99, Civil P.C., would cure the defect, if any.

It has been held in several cases that, where (specific performance is sought to be enforced against a subsequent purchaser who has got a right of pre, eruption, the Court should, in the exercise of its discretion u/s 22, Specific Relief Act, refuse to decree specific performance: see Habibar Rahman v. Ali Azahar AIR 1926 Cal. 1237, Genda Ram v. Ram ChandA.I.R. 1924 Lah. 163 and (Saheb) Dayal Singh Vs. Mahabir Singh and Others, . In this case, the defendants second party have undoubtedly a right of pre-emption, and the plea of waiver raised by the plaintiff having failed, the Court will not be justified in decreeing specific performance. Section 22, Specific Relief Act, clearly provides that the right to decree specific performance is discretionary and the Court is not bound to decree specific performance merely because it is lawful to do so.

In my opinion, therefore, the decision of the Court below dismissing the claim for specific performance is right.

It is next contended by Mr. Nirsu Narain Sinha that the decree for compensation, that was passed by the trial Court, was perfectly correct and was improperly modified by the lower appellate Court. The trial Court allowed interest on Rs. 2950, the balance of the consideration, because the plaintiff had kept that money always ready for payment to the vendor. But the learned Subordinate Judge rightly pointed out that, if the plaintiff was not entitled to obtain specific performance she could not properly claim any interest on the money which she was required to pay under the terms of the contract. Further, the learned Subordinate Judge has apparently not accepted the plaintiff''s case that the money was held up by the plaintiff all the time. The Munsif also allowed Rs. 100 as damages on account of expenses incurred in connexion with the criminal case. As rightly pointed out by the learned Subordinate Judge, it is very difficult to follow the reasoning of the Munsif in awarding this compensation. This compensation does not come within the terms of the contract itself. All that the contract provides is that "if there be an occasion to institute suit in Court regarding the execution of the deed of sale, the said vendee shall be competent to realise the cost, damages and compensation which she will in our in instituting the suit from the person and property of us, the executants, our heirs and representatives."

Having regard to these terms, the Munsif was not justified in awarding either the interest on Rs. 2950 or the sum of Rs. 100 as damages on account of expenses incurred in connexion with the criminal case. The decision of the learned Subordinate Judge with regard to compensation, therefore, appears to be correct.

On behalf of some of the minor respondents, who were among the defendants first party, it was contended that the appeal, so far as it related to compensation, was not maintainable. As I have already said, there were two appeals preferred from the decision of the Munsif to the lower appellate Court. It is therefore argued that there were two decrees passed by the lower appellate Court and the plaintiff ought to have filed two separate appeals. But in the decree that has been drawn up in the appeal which was preferred by the plaintiff, namely, Appeal No. 24 of 1938, the order relating to compensation is embodied. There is therefore no substance in the objection raised. In the result, I would dismiss the appeal with costs to the defendants second party respondents.

Shearer, J.

I agree.