Ram Kumar and Another vs Udai Kumar Jaiswal

Mungeshwar Sahoo, J.—The defendants have filed this First Appeal against the Judgment and Decree dated 04.05.1983 passed by learned Second Addl. Sub Judge, Vaishali in title suit No. 85 of 1978/18 of 1982 whereby the Court below decreed the plaintiff respondent''s suit for specific performance of contract. The plaintiff-respondent filed the aforesaid suit for specific performance of contract dated 18.11.1974 and the subsequent agreement dated 16.10.1975. The said relief was claimed alleging that the suit property standing over 2 katha 15 dhur land is double storied house. The defendant No. 2 and 3 are minor sons of defendant No. 1. The defendant No. 1 executed and registered an agreement dated 18.11.1974 in respect of the suit property for a consideration of Rs. 10,000/- acting as karta and guardian of defendant No. 2 and 3. Rs. 5000/- was paid as earnest money at the time of execution of the agreement for sale. The plaintiff demanded to execute the sale deed who instead of executing the sale deed executed another agreement on 16.10.1975 on receipt of further Rs. 200/- and promised to execute the sale deed within a period of 15 months on receipt of remaining consideration amount of Rs. 4100/-. Subsequently in spite of repeated demand, the defendant No. 1 did not execute the sale deed, so advocate''s notice was served on the defendant No. 1 but to no effect. The plaintiff was always ready and willing and still ready and willing to perform his part of the contract and is ready to pay balance consideration amount. The defendant deliberately pulled down back portion of the house, as such the plaintiff would have to incur an expense of Rs. 500/- on repairing the same.

The defendant No. 1 filed contesting written statement. Besides taking various legal please, the defendants alleged that the correct valuation of the suit property is about Rs. 45,000/-. The defendant has got 4 daughters who have also got interest in the suit property. The defendant never entered into agreement with the plaintiff to sell the suit property. He was not in need of money nor he ever received any amount as claimed by the plaintiff, nor he agreed to sell the land or to execute sale deed after 15 months. The further case of the defendant No. 1 is that he has got only one house that is the suit house to live for his entire family, therefore, he could not have contracted to sell the suit house to the plaintiff. The cousin of defendant No. 1, namely, Bhagwania has also got half share. In fact he had taken a loan from Shivji Chaudhary and on his insistence, the defendant executed the agreement for sale and it was agreed that on repayment of loan, the agreement would be returned to the defendant. The defendant paid the loan but Shivji did not return the agreement for sale.

On the basis of the aforesaid pleadings, the learned Court below framed the following issues:-

(i). Is the suit as framed maintainable?

(ii) Whether the plaintiff had a cause of action to bring the suit?

(iii) Whether the suit has been properly valued?

(iv) Is the suit bad for non joinder of parties?

(v) Is the alleged Mahadanama genuine valid and for consideration?

(vi) Whether the plaintiff was ready and willing to perform his part of the contract?

(vii) Whether the plaintiff is entitled to any relief or reliefs, if so, to what extent?

After trial, the lower Court recorded the findings to the effect that the defendant No. 1 had executed the agreement after receipt of the consideration and the plaintiff was always ready and willing to perform his part of the contract. Accordingly, decreed the plaintiff''s suit for specific performance and directed the defendant No. 1 to withdraw the amount and execute a sale deed in favour of the plaintiff.

It may be mentioned here that during the pendency of this appeal, the appellant No. 1 who was defendant No. 1 died. The appellant No. 2 and 3 who were minors became major and they appeared by filing Vakalatnama. The name of the appellant No. 1 was expunged by terms of order dated 23.04.2013.

The learned counsel for the appellant submitted that according to the plaintiff himself, the suit property which is house belong to defendant No. 1 and his two sons, i.e., defendant No. 2 and 3 who are the present appellants. According to the plaintiff, the agreement was entered into by the defendant No. 1 as karta and on behalf of the defendant No. 2 and 3 also for selling the suit property but in fact in the agreement, there is nothing to show that the defendant No. 1 entered into agreement either as karta or as guardian on behalf of the defendant No. 2 and 3, therefore, the only house in which the defendant No. 2 and 3 who are the present appellant would not have been sold by the defendant No. 1. The learned Court below has not considered this aspect of the matter. The learned counsel further submitted that the suit property was only one house belong to the appellants for their residence and if the same is sold, the appellant shall suffer serious loss and hardship. The defendant No. 1 could not have entered into agreement for sale of the share of defendant No. 2 and 3 who are the appellants now. The defendant No. 1 had only a minor share in the suit property which is ancestral property. Moreover, the guardian ad litem appointed by the Court below for representing the defendant No. 2 and 3 did not take appropriate steps on behalf of the defendant No. 2 and 3, therefore, the Judgment is not binding on them. Moreover, since they are not party to the agreement, they could not have been made party in the suit and their share could not have been directed to be sold by the Court below by impugned Judgment and decree. According to the learned counsel, the trial Court also did not consider the hardship of the appellant and the fact that the plaintiff approached the Court with unclean hand by stating that the defendant No. 1 entered into agreement as karta and guardian of defendant No. 2 and 3 for selling the only suit house. Although the agreement did not speak so. On these grounds, the learned counsel submitted that the impugned Judgment and Decree are unsustainable in the eye of law.

On the other hand, the learned counsel, Mr. Yogendra Mishra, appearing on behalf of the respondent submitted that the decree has not been passed against the defendant No. 2 and 3 who are the present appellants. In fact the decree has been passed against defendant No. 1. In suit for specific performance only the necessary party is the person who entered into agreement, therefore, the present appellants were not at all necessary party. However, they were added as defendant No. 2 and 3 as precautionary measure, therefore, the same may be considered as mis-joinder of parties. Since agreement was between the plaintiff and defendant No. 1, the only answer party was defendant No. 1 and the decree have been passed against defendant No. 1 only. So far hardship is concerned, according to the learned counsel the defendant No. 1 has sold 10 dhur out of the suit property during the pendency of the appeal to third person, therefore, it cannot be said that the appellant shall face great hardship. Two registered agreements were entered into by the defendant No. 1 with full knowledge about the fact that he is selling the suit property which is his only residential house. Now, therefore, the appellant cannot be heard to say that if the house is sold, there will be great hardship to the appellant. The learned counsel further submitted that in the Court below, when the father did not appear on behalf of the his minor two sons, the Court below appointed guardian ad litem. Therefore, the provision of law had already been complied with and the interest of the minors were represented in the Court below. On these grounds, the learned counsel submitted that the First Appeal is liable to be dismissed.

In view of the above rival contentions of the parties, the points arises for consideration is as to whether the plaintiff has been able to prove his case for the grant of decree for specific performance of contract and whether he is entitled for the same and whether the impugned Judgment and Decree are sustainable in the eye of law.

According to the plaintiff, the suit property is double storied house having partly kachcha roof and partly tiled roof. The defendant No. 1 as karta and guardian of defendant No. 2 and 3, i.e., minor sons of defendant No. 1 entered into agreement dated 18.11.1974. Rs. 5000/- was paid as earnest money. Again on 16.10.1975, another agreement was executed on receipt of Rs. 200/- and the remaining consideration of Rs. 4800/- was to be paid within 15 month. On the contrary according to the defendant No. 1, he has not entered into agreement. However, it appears that it is specifically pleaded in the written statement to the effect that the defendant No. 1 for obtaining loan executed the agreement at the instance of Shivji Chaudhary and it was agreed that on repayment of loan, the agreement will be returned. Therefore, here it appeals that the execution of the agreement is admitted by the defendant No. 1. It may be mentioned here that at the time of hearing of this appeal, the learned counsel for the appellant did not assail the part of the Judgment whereby the trial Court has held that the plaintiff was always ready and willing to perform his part of the contract and that part of the finding also whereby it has been held that the agreement is genuine agreement. In view of this fact, it is not necessary for this Court to decide these questions because none of the parties addressed to this Court of these points.

Now, therefore, in view of the above facts, the case is to be decided accepting that the plaintiff was always ready and willing to perform his part of the contract and the agreement is genuine one. According to the learned counsel for the appellant, the suit house is the only house and admittedly it is the coparcenary property. On the date of entering into agreement, the minor sons of defendant No. 1 had also share in the suit house. The father had no authority to sell the coparcenary house where the two minors sons had also major share, i.e., father had 1/3rd share and the two minor sons had got 2/3rd share and except the suit house, there is no other house but the learned trial Court did not consider this aspect of the matter. As stated above, according to the learned counsel for the respondent, the defendant No. 1 had agreed to sell the property and the Judgment and Decree is against the defendant No. 1. The minor sons have been joined as precautionary measure although they are not necessary party. So far hardship is concerned, according to the learned counsel, no issue was framed in the Court below and moreover during the pendency of this appeal, the defendant No. 1 had sold 10 dhurs out of the suit land as such injunction application was filed being I.A. No. 9727 of 2010 by the respondent. No reply has been filed by the appellant nor the fact of sell is denied by the appellant. Therefore, there is no question of hardship arises.

In view of the above submission of the parties, the only question raised before this Court is u/s 20 of the Specific Relief Act. Therefore, the evidence produced by the parties are not necessary to be seen at all. As admitted by the learned counsel for the appellant, he is not challenging the finding regarding readiness and willingness of the plaintiff and the finding regarding genuineness of the agreement. Now, therefore, the point which has been raised is only with regard to question of law. However, it is admitted fact that the defendants had only one residential house over 2 katha 15 dhurs. It is also admitted fact that during the pendency of this appeal, the defendant No. 1 had sold the vacant land measuring 10 dhurs, therefore, injunction application was filed.

At paragraph 2 of the plaint, the plaintiff pleaded that the defendant No. 1, 2 and 3 are the members of coparcenary family and the defendant No. 1 is the karta. Defendant No. 1 as karta and guardian of the minor defendant No. 2 and 3 entered into agreement. Therefore, the plaintiff admitted the fact that the house property is a coparcenary property. In the written statement, the defendant claimed that one Bhagmania daughter of Palak Chaudhary has also got share in the suit house. However, said Bhagmania is not party to the suit nor she ever filed any application for being added as party or she ever claimed any title. At paragraph 21 of the written statement, the defendant clearly mentioned that except this suit house, the defendant had no other house in the world and in this disputed house, the defendants lives with his family and minor children. None of the plaintiff witness denied the fact pleaded by the appellant at paragraph 21. The defendant No. 1 who had been examined as D.W. 3, at paragraph 3 of his evidence has clearly stated that except this house, the defendants have no other house to live. So far this question to whether the defendant has other house or not becomes now admitted fact that except this house, the defendants have no other house. It is now admitted fact that the minor sons of defendant No. 1 have got jointly 2/3rd share in the house.

From perusal of the Ext. 3 and 3/A which are the agreements, it appears that agreements have been executed by defendant No. 1 only. The said agreements were never executed by defendant No. 1 as karta or as guardian on behalf of the defendant No. 2 and 3. Therefore, in the plaint the plaintiff wrongly stated that the defendants No. 1 executed the agreement for self and karta and guardian of the minors. In view of the above facts, the minors were not the party to the agreement nor agreement was executed on their behalf. It appears that although guardian was appointed but no written statement was filed on behalf of the defendants. In other words, no effective steps was taken by the guardian appointed by the Court on behalf of the minors to protect the interest of the minors. As admitted by the plaintiff, the minors are also member of coparcenary family and they had major share, i.e., 2/3rd share in the suit house. The question is whether share of minor could have also been sold by the defendant No. 1? This aspect of the matter has not been considered by the trial Court. On the contrary, from the pleadings of the plaintiff, it appears that a wrong statement has been made by the plaintiff to the effect that defendant No. 1 entered into agreement and as guardian of the minors, he agreed to sell the property. Therefore, here the plaintiff is approaching the Court with unclean hand.

It may be mentioned here that during the pendency of the appeal, the defendant No. 1, appellant No. 1 has died and his name has been expunged. The two minor sons are major and appellants in this First Appeal. These appellants also are not agreeable to sell their share in the suit house. It is not the case of the parties that the share of the defendant No. 1 is separable and distinct in the suit house. Moreover, the share of defendant No. 1 is small portion whereas the share of the present appellants are double the share of defendant No. 1. The plaintiff nowhere claimed that he is even ready to purchase the share of defendant No. 1 on payment of consideration amount. On the contrary, his case is that the agreement was entered into on behalf of all the defendants, which is contrary to the agreement, i.e., Ext. 3 and 3/A.

In the case of Sardar Singh Vs. Smt. Krishna Devi and another, , the Hon''ble Supreme Court has held that where property is joint and stands in the name of persons agreeing to sell and his brother not agreeing party and the property is capable of division, justice demand partially enforcement of contract instead of denying specific performance in its entirety. Here as stated above, it is the only house of the defendant where the defendant No. 1 has got only 1/3rd share.

It is settled principle of law that where part performance of contract to sell involves hardship on the seller, whereas the non-performance thereof would not involve any hardship on the plaintiff-purchaser, decree for part performance should not be granted.

In the present case as has been admitted by the plaintiff, the suit property is the coparcenary property and the minor sons of defendant No. 1 were not party to the agreement. Therefore, the suit for specific performance of contract against the whole body of coparcenary itself is not tenable, particularly when only one member had executed the agreement.

In the case of Prakash Chandra Vs. Angadlal and Others, , the Hon''ble Supreme Court has held that the ordinary rule is that specific performance should be granted. It ought to be denied only when equitable consideration point to its refusal and the circumstances show that damages would constitute an adequate relief. It is also settled principle of law that the plaintiff seeking decree for specific performance cannot modify the express terms in the agreement to his advantage and call upon the other party to execute the agreement for sell. The discretion to be exercised by the Court should be on sound and reasonable principle. The grant of decree for specific performance of contract is discretionary equitable relief and cannot be claimed as a matter of right.

In Commr. of Income Tax, B. and O. Vs. Janki Kuar Sahiba, , this Court has held that where a person is jointly interested in a estate with another person, and purports to deal with the entirety, specific performance will not be granted against him as to his share. In the present case at our hand, the share of defendant No. 1 is yet to be ascertained with certainty.

In the case of Bal Krishna and Another Vs. Bhagwan Das (Dead) and Others, , the Hon''ble Supreme Court at paragraph 14 has held as follows:-

It is also settled by various decisions of this Court that by virtue of Section 20 of the Act, the relief for specific performance lies in the discretion of the court and the court is not bound to grant such relief merely because it is lawful to do so. The exercise of the discretion to order specific performance would require the court to satisfy itself that the circumstances are such that it is equitable to grant decree for specific performance of the contract. While exercising the discretion, the court would take into consideration the circumstances of the case, the conduct of parties, and their respective interests under the contract. No specific performance of a contract, though it is not vitiated by fraud or misrepresentation, can be granted if it would give an unfair advantage to the plaintiff and where the performance of the contract would involve some hardship on the defendant, which he did not foresee. In other words, the courts discretion to grant specific performance is not exercised if the contract is not equal and fair, although the contract is not void.

In the case of Mohammedia Coop. Building Society Ltd. Vs. Lakshmi S. Coop. Building Society Ltd. and Others, the Hon''ble Supreme Court has held at paragraph 71 as follows:-

Grant of a decree for specific performance of contract is a discretionary relief. There cannot be any decision whatsoever that the discretion has to be exercised judiciously and not arbitrarily. But for the said purpose, the conduct of the plaintiff plays an important role. The Courts ordinarily would not grant any relief in favor of the person who approaches the Court with a pair of dirty hands.

The other aspect of the matter is as has been admitted by the plaintiff, the property is coparcenary property. If any sale deed is executed by the defendant No. 1 with regard to the suit property, then no valid title will be transferred to the purchaser because the minor sons who are now appellants before this Court will have a right to challenge the sale of their share. Further the plaintiff never stated that he is even ready to purchaser unspecified share of defendant No. 1. No doubt the defendant No. 1 has died but then the defendant No. 2 and 3 who are the appellants cannot be directed to sell their share in the suit house because they are not party to the agreement and their share cannot be sold by the father. The learned counsel, Mr. Yogendra Mishra, appearing on behalf of the respondent submitted that no issue of hardship was framed in the Court below. Therefore, the same cannot be raised in this First Appeal by the appellant. The learned counsel in support of his contention relied upon Prakash Chandra Vs. Narayan, . It appears that it was a case of second appeal and since the question is a mixed question of law of fact it was not allowed to be raised in second appeal. In the present case, this is the specific pleading of the defendant-appellant that except this house, the defendants have no other house in the world and the defendants are residing in the house. In the evidence also, this pleading is supported. There is no denial on the part of the plaintiff''s. Now, therefore, it cannot be said that because of no issue, the plaintiff was prejudiced in any manner. We are hearing the first appeal u/s 96 of the CPC and according to Section 107(2) of the CPC subject to sub section (1), the appellate Court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by this Code on Courts of original jurisdiction in respect of suits instituted therein. Therefore, the First appellate Court is final Court of fact and law. The appellant is not raising a new plea before the Court. From the very beginning, since the filing of written statement, his case is that except this suit house, he has no other house and, therefore, the question raised by the appellant to the effect that if the suit house is sold, the appellant shall be put in great hardship is only a question of law and not fact because the fact is admitted.

The learned counsel for the respondent submitted that during the pendency of the appeal, 10 dhurs out of the suit property has been sold is concerned, it may be mentioned that it is not the case of the respondent that on that portion of 10 dhurs, a part building was standing. The learned counsel for the appellant submitted that it was only a vacant land.

The learned counsel for the respondent relied upon a decision of the Hon''ble Supreme Court reported in Laxman Tatyaba Kankate and Another Vs. Smt. Taramati Harishchandra Dhatrak, and submitted that even if there is considerable increase in prices of the suit land, it cannot be a ground to deny specific performance of contract. This decision has been relied upon by the respondent because the appellant relied upon an another decision of Apex Court reported in Pratap Lakshman Muchandi and Others Vs. Shamlal Uddavadas Wadhwa and Others, and submitted that now the price of the suit house has considerably increased. So far these two decisions relied upon by both the parties are concerned, there is no hard and fast rule laid down by the Apex Court that in each and every case, either the decree for specific performance be refused on the ground of increase in price or the plaintiff be directed to pay the higher price. In my opinion, the Hon''ble Supreme Court directed to pay the higher price in the facts and circumstances of that case which cannot be applied in this case as a matter of rule.

In view of my above discussion, the facts emerges in this case is that the defendant No. 1 entered into agreement to sell the coparcenary property. The plaintiff filed the suit making the whole coparcenary body as party and sought decree for specific performance against the whole coparcenary body wrongly alleging that the agreement has been entered by defendant No. 1 as karta and guardian of minor defendant No. 2 and 3. Therefore, the plaintiff at the very outset approached the Court with unclean hand. The minor defendant No. 2 and 3 were not party to the agreement but they were made party in the suit and the plaintiff sought the relief for specific performance of the share of minor defendant No. 2 and 3 also. Although guardian was appointed by the trial Court but the guardian ad litem did not take effective step to protect the interest of minors. The father, i.e., the defendant No. 1 had only 1/3rd share as admitted by the plaintiff. The suit had been decreed against defendant No. 1 only and the defendant No. 1 had been directed to execute the sale deed although he had no authority to transfer the share of the minors. The minors had now attained majority and are challenging the decree. In other words, they are not ready to transfer the suit house. The suit house is the only house where the appellants are residing. If the decree is passed then the appellants shall be thrown in the street and that will cause great hardship to them. On the contrary, if no decree is passed then there will be no hardship to the plaintiff and he will get back his amount. Further, the defendant No. 1 had only 1/3rd share which is inseparable. If it is held that the decree is against the minors also then also the decree is unsustainable because the minors are not party to contract as such no decree can be passed against them for performance of contract to which they were not party.

In view of my above discussion, in my opinion, it is not equitable in the present case to grant a decree for specific performance of contract in favour of the plaintiff. The learned Court below has not considered this aspect of the matter and assuming that the defendant No. 1 had entered into agreement as karta directed him to execute the sale deed. Therefore, the impugned Judgment and Decree are unsustainable in the eye of law. However, the plaintiff is entitled to receive back the amount paid to the defendant with simple interest. The defendants-appellants are accordingly directed to return the amount with simple interest @ 6% per annum. The plaintiff is entitled to withdraw the amount of Rs. 4800/-, if deposited by him. In the result, this First Appeal is allowed. The impugned Judgment and Decree are set aside and it is held that the plaintiff is entitled to receive back the amount paid as aforesaid. In the facts and circumstances of the case, there shall be no order as to cost.