Satcori Mukherjee vs Nalinakshya Mukherjee

Renupada Mukherjee, J.—The Plaintiff of the trial court is the Appellant in this Court and the appeal arises out of a suit for specific performance of a contract for lease of some immovable properties described in the schedule of the plaint. Alternatively there was a claim for compensation to the extent of Rs. 850 if the court did not find its way to grant the prayer for specific performance of the contract. The facts of the case will appear from he body of the judgment.

The Defendants contested the suit by filing two sets of written statements-one by Defendants Nos. 1 to 4 and another by Defendants No. 6 in his capacity as natural guardian of minor Defendants Nos. 6(a) and 6(b).

The trial court dismissed the claim of the Plaintiff for specific performance of the contract and passed a decree against Defendant No. 1 for refund of a sum of Rs. 125 which had been advanced by the Plaintiff in payment of selami.

The Plaintiff preferred an appeal from the judgment and decree of the trial court and the lower appellate court modified the decree by passing in a decree for compensation against Defendants Nos. 1, 2 and 4 to the extent of Rs. 472-8. The order of the trial court dismissing the claim for specific performance of the contract was maintained. ''This second appeal has been preferred by the Plaintiff from the above judgment and decree of the lower appellate court.

Before I enter into a discussion of the controversies raised in this, appeal I shall briefly summarise the respective cases of the contending parties. The case of the Plaintiff is as follow: The disputed properties comprise two items-the first item being the southern and western banks of a tank known as Kadam Gorey in mouza Ukhra measuring 89 acres. The second item is a danga land in mouza Sarpi measuring 9 bighas. The owner of these two items of properties are Kashinath Mukherjee, Defendant No. 1 of the trial court and his co-sharers, Defendants Nos. 2 to 5 and Defendants Nos. 7 and 8. The Defendant No. 1 on his own behalf and under authority from his co-sharers entered into a contract with the Plaintiff to lease out the disputed properties to him for a selami of Rs. 200 for the Sarpi lands and Rs. 600 for the banks of Kadamgorey tank, the rent being fixed at Re. 1 per bigha The Plaintiff was to get occupancy right in the Sarpi lands and an under tenure right in the banks of Kadamgorey. The contract was completed and concluded on the Chaitra 26, 1353 B.S. when Rs. 125 was paid to Defendant No. 1 in part payment of the selami. It was further agreed between the parties that the lease was to take affect from Baisakh 1354 B.S. and the document of lease was to be executed and registered within the first week of Baisakh 1354 B.S. The Plaintiff further alleged that although he was all along ready and willing to perform his part of the contract the Defendant No. 1, who was acting on behalf of himself and his co-sharers, did not execute this document on various pretexts and it ultimately transpired that in violation of the contract the Defendants Nos. 1 to 5 had leased out their 12 as share in the property of item No. 1 to Defendant No. 6, who had full knowledge of the Plaintiff''s contract.

Upon the above allegations the Plaintiff instituted this suit for specific performance of the contract on November 19, 1947, the Plaintiff also made an alternative prayer for recovery of compensation stating at the same time that pecuniary compensation would not furnish an adequate relief.

Defendants Nos. 1 and 4 of the trial court filed a written statement denying that there was a completed and concluded agreement or that any money was paid in part payment of selami.

Minor Defendants Nos. 8(a) and 8(b) who are the sons of Defendant No. 6, were added as parties subsequent to the filing of the plaint. A written statement was filed on behalf of the minors by their father in which it was contended that the minors are subsequent bona fide lessees for consideration without notice of Plaintiff''s contract and so the alleged contract is not specifically enforceable against them.

Both parties adduced evidence in support of their respective cases and from such evidence the trial court came to the conclusion that there was a contract for lease between the Plaintiff, on the one hand, and Defendant No. 1, on the other, who acted on his own behalf and on behalf of his co-sharers for whom he was authorised to act, but the contract could not be specifically enforced in a court of law because it was uncertain in some material respects and because minor Defendants Nos. 3 and 5 were not bound by the contract. The above conclusions were substantially modified by the lower appellate court which has observed as follows at page 27 of the paper-book.

In fine, I find that there was a contract of lease between the Plaintiff, and the Defendant No. 1 with respect to the properties in suit and that the terms of the contract were clear, complete and ascertained as alleged in the plaint.

The lower appellate court further held that the contract was binding on adult Defendants Nos. 1, 2, 4, 7 and 8. It, however, agreed with the trial court that the contract was not binding on minor Defendants Nos. 3 and 5. Both the courts concurrently held that Defendant No. 6, who acted as guardian of minor Defendants Nos. 6(a) and 6(b) had notice of Plaintiff''s contract. The lower appellate court did not grant the Plaintiff''s prayer for specific performance of the contract in view of the special circumstances of the case and passed a decree for compensation to the extent of Rs. 472-8 to be obtained from Defendants Nos. 1, 2 and 4.

Mr. Guha who appeared on behalf of Respondent Nos. 6 to 8 of this appeal [Defendants Nos. 6, 6(a) and 6(b) of the trial court] and Mr. Mukherji who appeared on behalf of Respondent No. 4 of this appeal and adopted and supplemented Mr. Guha''s argument, contended that the lower appellate court was wrong in deducing the legal inference from the pet of facts proved in the trial court that a case of completed and concluded contract had been made out by the plaintiff. In particular they drew my attention to a memorandum written by Defendant No. 1 Kasinath Mukherjee on Chaitra 26, 1353 B.S. by which the terms of the contract are said to have been reduced in writing. This argument of the learned advocates for the contesting Respondents cannot be accepted because it was not the case of the Plaintiff-Appellant that all the terms of the contract were reduced to writing by the memorandum in question. According to his case the contract was concluded orally and the memorandum was written by Kasinath by way of confirmation. That story was accepted by the lower appellate court. Another document written by Kasinath himself on the same day on which the memorandum was written was marked ext. 2 in the trial court. That document, if perused carefully, would show that there was a concluded contract between the parties and a portion of the selami, namely, Rs. 125 was paid on Chaitra 25, 1353 B.S. and the payment was acknowledged by the document. The document further shows that the lease was to be executed by the first week of Baisakh 1354 B.S. Kasinath also wrote some subsequent letters to the Plaintiff Appellant from which it would be abundantly clear that there was a full-fledged contract between the parties and nothing more remained to be done for giving the contract a final shape and form except the execution and registration of the document. I, therefore, hold that the lower appellate court was perfectly justified in holding that there was a completed and concluded contract and that the contract was not void for uncertainty with regard to any of its terms.

The only material question which has been raised in this appeal by the Plaintiff Appellant is whether in view of the above finding of the lower appellate court it was justified in refusing specific performance of the contract. That prayer has been refused on two grounds-first, the contract is not enforceable against mingy Defendants Nos. 3 and 5 and secondly, monetary compensation, which the Plaintiff himself claimed alternatively in the plaint, would furnish an adequate relief in this case. I shall now consider whether these two grounds are tenable in law.

It is now admitted that performance of the contract cannot be specifically enforced as against minor Defendants Nos. 3 and 5. The contract cannot, therefore, be enforced as a whole, Specific performance of a part of a contract of this nature is provided for in Section 15 of the Specific Relief Act. We are concerned with the second portion of this section which runs in the following terms:

But the court may, at the suit of the other party, direct the party in default to perform specifically so much of his part of the contract as he can perform, provided that the Plaintiff relinquishes all claim to further performance, and all right to compensation either for the deficiency, or for the loss or damage sustained by him through the default of the Defendants.

Mr. Guha contended on behalf of the Respondents that in this case the Plaintiff has not relinquished his claim to performance of the entire contract, neither has he relinquished his right to compensation arising out of non-performance of a part of the contract and so the court had a discretion to refuse specific performance of a part of the contract. In support of his argument he relied on the case Abdul Rahim v. Maidhar Gazi (1928) 32 C.W.N. 1163. In that case a minor whose share in the property contracted to be sold was one-sixth, was not properly represented by the Plaintiffs who wanted specific performance of the contact. The learned Judge of the High Court refused the Plaintiffs'' prayer for specific performance of the contract because the Plaintiffs had, by their conduct, made it impossible for the court to give effect to the contract in its entirety. In the present case the Plaintiff is not guilty of such conduct. So the above decision has no application to the facts of the present case.

Mr. Laik appearing on behalf of the Plaintiff Appellant cited several case before me for establishing his contention that specific performance of a part of a contract affecting alienation of immovable properties may be decreed even if the contract fails against some of the co-sharers. Some of these cases are not relevant for our purpose but the case Purna Chandra Mukerji and Another Vs. Gopendra Krishna Kundu and Others, , is exactly to the point. There a contract for sale was entered into by a person on his own behalf and also on behalf of his minor nephew. It was held that although the contract was not enforceable against the minor it could be enforced against the contractor in respect of his share of the property under the provisions of Section 15 of the Specific Relief Act which applied to the facts of that case. The present case is similar in all essential respects to the above case so there can be no doubt that the contract of lease can be enforced against the adult Defendants.

Mr. Guha contended in this connection that the Plaintiff Appellant has never indicated that he is prepared to relinquish his claim to a performance of the entire contract or his claim to compensation arising out of the inability of the adult Defendants to perform the whole contract and so the case must go out of the ambit of Section 15 of the Specific Relief Act. In my opinion there is no substance in this contention. The claim against the shares of minor Defendants Nos. 3 and 5 was not pressed either in this appeal or in the lower appellate court. Rather it was conceded in the lower appellate court that the shares of the minors are not affected by the contract. The offer of relinquishment contemplated in Section 15 of the Specific Relief Act may be made at any stage of the proceeding and the fact that the appeal is being prosecuted virtually against the adult co-sharers is a sufficient indication that the Plaintiff Appellant would be satisfied if only the executable part of the contract is performed and he has got no intention of claiming any compensation. In my opinion there was no legal or justifiable ground for refusing specific performance of a part of the contract simply because the sharers of the two minor co-sharers could not be leased out.

The other ground for refusing specific performance of the contract was that according to Plaintiff''s own case an award of Rs. 850 by way of compensation would furnish an adequate relief. This reasoning given by the lower appellate court at page 30 of its judgment is based on a misreading of paragraph IS of the plaint which runs in the following terms:

The Plaintiff submits that pecuniary compensation for non-performance of the aforesaid contract would not afford adequate relief to the Plaintiff and the Plaintiff is entitled to a specific performance of the same. If however the court do not find its way to grant specific performance the Plaintiff in such case, alternatively claims Rs. 850 as such compensation.

The above quotation shows that the Plaintiff Appellant specifically stated in the plaint that pecuniary compensation would not furnish an adequate relief in this case and he claimed compensation only if the court, for good and valid reasons, could not pass a decree for specific performance of the contract. Such an assessment of pecuniary compensation claimed only by way of an alternative relief does not indicate that in the estimation of the Plaintiff monetary compensation would furnish adequate relief specially in view of the positive statement of the Plaintiff to the contrary in the plaint. This view is supported by the decision Brij Ballav Das v. Mahabir Prosad AIR [1924] All 529. In this connection I may also refer to the Explanation to Section 12 of the Specific Relief Act, which runs to the following effect and which was not adverted to by the learned Judge of the lower appellate court:

Explanation-Unless and until the contrary is proved, the court shall presume that the breach of a contract to transfer immovable property cannot be adequately relieved by compensation in money, and that the breach of a contract to transfer moveable property can be thus relieved.

In the above connection Mr. Guha on behalf of the Respondent drew my attention to the case Ramji v. Rao Krishore Singh (1929) L.R. 56 IndAp 280, 284-85. and contended that since the lower appellate court has in its discretion, held that monetary compensation would furnish adequate relief, this Court should not interfere with that finding in second appeal. In that case, however, the finding of the District Judge that damages would be an adequate relief was arrived at after a consideration of the materials on record and so it was taken by their Lordships that compensation in money was an adequate relief to the Plaintiff. The following passage quoted from pages 284-285 of the report would illuminative:

Their Lordships are of opinion that there was evidence; the nature of the transaction, the terms of the agreement itself, and the other matters mentioned by the learned District Judge in the passage of his judgment, already cited, are sufficient to show that there was evidence on which the learned District Judge could properly arrive at the above mentioned finding. In their Lordships'' opinion, therefore it must be taken for the purposes of this appeal that compensation in money was an adequate relief to the Plaintiff for the non-performance of the contract by the Defendant, and that the amount of such compensation should be Rs. 20,000.

In the present case the finding of the lower appellate court is based upon a misreading of the plaint as shown above and upon a failure to advert to the explanation to Section 12 of the Specific Relief Act which enjoins on the court to presume, until the contrary is proved, that the breach of a contract to transfer immoveable property cannot be adequately relieved by compensation in money. That being so, the finding is vitiated by the commission of an error in law and as such, it must be set aside.

From my foregoing findings it would be clear that there was no valid or good ground for refusing specific performance of the contract against the adult Defendants. True, the granting, of such a relief is discretionary with the court, but Section 22 of the Specific Relief Act lays down that the discretion of the court is not arbitrary but sound and reasonable, guided by judicial principles and capable of correction by a court of appeal. In the present case a part of the selami for the lease was paid, but a subsequent lease of one of the properties was given to Defendants Nos. 6(b) by Defendants Nos. 1 to 5 on receipt of a higher selami and the subsequent leases were tainted with notice. Still the lower appellate court refused to decree specific performance of the contract. In my opinion there was a complete failure to exercise the jurisdiction of the court to decree specific performance with discretion.

In this connection one or two other arguments were advanced on behalf of the Respondents in support of the judgment of the lower appellate court which I shall now notice. It was argued by Mr, Guha that there is no evidence to show from which date the lease in favour of the Plaintiff was to commence and so specific performance of such an agreement should not be granted. In support of this contention Mr. Guha relied on a Privy Council decision Sm. Giribala Dasi v. Kalidas Bhanja, (1920) 25 C.W.N. 320 P.C which is no doubt authority for the proposition that unless an agreement to grant a lease fixes the date from which the term is to run either expressly or by implication, specific performance of the agreement should not be granted. In the present case however, there is a statement in the plaint that the lease was to commence from Baisakh 1354 B.S. which was not specifically challenged by the Respondents. Mr. Guha submitted that the entire contract was challenged and so that statement in the plaint not supported by any evidence, cannot be utilised against the Respondents. This argument of Mr. Guha cannot be accepted for two reason-first, the denial of the contract having been found to be false, the lower appellate court has chosen to accept this statement in the plaint and secondly, that statement apart, the document marked ext. 2 shows that the lease was to be executed and registered during the first week of Baisakh 1354 B.S. The time for execution of the lease was thus positively fixed and in the absence of any other agreement the lease would have run from the date of its execution as provided in Section 110 of the Transfer of Property Act. That date having been fixed within well-defined limits 1 repel the argument of Mr. Guha that no date was fixed from which the term of lease was to run.

Mr. Guha argued in the last resort that the argument must fail because the share of the minor Defendant No. 3 in the properties is unascertained. The courts below have held, and I have agreed with them, that the share of the minor Defendants Nos. 3 and 5 must be excluded. Minor Defendant No. 5 lias got 4 as. share in the properties. The lower appellate court seems to think that the share of minor Defendant No. is also ascertained. This is wrong because the statement in the plaint about share is that minor Defendant No. 3 has got 4 as. share along with Defendants Nos. 1 and 2. There is nothing on the record to show what is the extent of the shares of these three Defendants individually. This, however, should not present any difficulty in the way of the execution of the lease because the share of minor Defendant No. 3 will be ascertained and excluded along with the 4 as. share of minor Defendant No. 5 before the actual execution of the document. I, therefore, reject this last contention of Mr. Guha.

In the result, I hold that this is a fit case in which specific performance of the contract should have been decreed by the courts below. The Appellant must, however, deposit in the trial court a sum of Rs. 675 being the balance of the entire selami of Rs. 800 after deducting Rs. 125 which has already been paid.

In the result this appeal is allowed. The judgments and decrees of the courts below are hereby set aside and the following decree substituted in their place. The claim of the Plaintiff Appellant for specific performance of the agreement to lease the disputed lands is decreed in part. Within a month of the arrival of the records in the court below the Plaintiff Appellant must deposit in the trial court a sum of Rs. 675 to the credit of Defendants Nos. 1, 2, 4, 7 and 8 of the trial court. If the above amount is deposited within that time then the above-mentioned Defendants will execute a lease of the disputed lands of the plaint in respect of their shares and in terms of the contract set out in the plaint except of course the term regarding the date of commencement of the lease. Should there be any dispute about the extent of their shares, the question will be decided by the trial court. If the Plaintiff Appellant fails to deposit the money within the time allowed, his suit will stand dismissed with costs to the contesting Respondent. If, on the other hand, the money is deposited but the Defendants Nos. 1, 2, 4, 7 and 8 of the trial court fail to execute the lease within the time allowed, then the Plaintiff Appellant will be entitled to enforce execution and registration of the document of lease through the court. Upon execution and registration of the document, the Plaintiff Appellant will get possession of the disputed properties to the extent of his share and the lease will be binding on all the Defendants of the trial court except Defendants Nos. 3 and 5 of that court.

In view of the result of the suit I direct that the Plaintiff Appellant will in the event of his final success, get half of his total costs in all the courts from Defendants Nos. 1, 2, 4 and 6 of the trial court who will bear their own costs.

Leave is asked for on behalf of the Respondents Nos. 6, to 8 to file an appeal under Clause 15 of the Letters Patent but is refused.