Sm. Durgabala Dasi vs Tarasankar Dikhit

Renupada Mukherjee, J.—This second appeal arises out of a suit for specific )3erformance of a contract for sale of an eight- anna share of a residential house standing on C.S. plot No. 315 of mauza Bhabanipur. The suit was instituted by Plaintiff Tarasankar Dikhit, Respondent No. 1 of this appeal. Admittedly, the above share of the house belonged to one Harih#r Chandra, Respondent No. 2 of this appeal and Defendant No. 1 of the trial court. According to the case of the Plaintiff, Harihar had agreed to convey this eight-anna share of the house by executing a bainapatra in favour of the Plaintiff on the 20th Kartick, 1357 B.S. corresponding to November 6, 1950 for a consideration of Its. 996 out of which a sum of Its. 29 was paid by way of earnest money at the time of the execution of bainapatra and the balance was payable at the time of the execution of the sale deed. The Plaintiff''s case further was that he had already purchased the other half share of the house from Harihar''s brother and he was in possession of that share. The Plaintiff also averred that upon the execution of the bainapatra, he was put in possession of Harihar''s separate half share of the house. The Plaintiff next alleged that he had to institute this suit because Harihar refused to execute the conveyance in terms of the contract although requested in that behalf by the Plaintiff.

The Appellants of this appeal who are Defendants Nos. 2 and 3 of the trial court and who are husband and wife were impleaded on the allegation that they had taken a collusive and fictitious kobala from Harihar, with notice of Plaintiff''s alleged contract.

The suit was separately defended by Harihar, and Durgabala, Appellant No. 1. There was no appearance of Durgabala''s husband in the trial court. The contesting Defendants denied in toto that any contract for sale had been entered into by Harihar Chandra and the execution of the bainapatra by Harihar was denied. Defendant No. 2, Durgabala- further contended that she was a bona fide purchaser for value without notice of Plaintiff''s alleged contract. These defences were negatived by the trial court and the suit was decreed against Defendants Nos. 2 and 3 who were directed to execute a conveyance in favour of the Plaintiff-Respondent upon his depositing the balance of the consideration money, namely. Rs. 700. This decision was confirmed in appeal. Hence Defendants Nos. 2 and 3 of the trial court have preferred this second appeal.

The main issues raised in the courts below were two. First, whether Harihar Chandra, Respondent No. 2 of this appeal and Defendant No. 1 of the trial court had executed the alleged bainapatra (marked Ext. 1) in the trial court in favour of the Plaintiff-Respondent and if so, whether it was prior to the contract set up by the Appellants. Secondly, whether the two Appellants were transferees for value without notice of Plaintiff''s alleged contract.

Both the above issues were decided in Plaintiff''s favour and the trial court''s finding was confirmed by the lower appellate court after a consideration of all relevant facts and circumstances of the case. I must hold that the concurrent findings of the courts below on question of fact must preclude the Appellant from challenging the propriety or correctness of those findings. The only contention urged by Mr. Biswas in this regard was that although Harihar Chandra specifically denied having signed and executed the bainapatra alleged by the Plaintiff, namely, Ext. 1, no handwriting expert was examined to prove the authenticity of Harihar''s signature. Mr. Biswas further argued in this connection that if the evidence of a handwriting expert were available on this point, then such evidence would have conclusively determined the point at issue between the parties. The records show that the Plaintiff took steps to examine a Government Handwriting Expert for comparing the disputed signature of Harihar Chandra with other authentic signatures of this man, but as no Government Handwriting Expert was available at the time when the suit was pending in the trial court, the matter was not proceeded with any further. I find that when this matter was dropped the aswering Defendants did not take any steps for examining an expert of their choice for the purpose of proving whether the purported signature of Harihar Chandra in the disputed bainapatra was a genuine signature. The courts below have however held upon a consideration of other evidence adduced by the parties and the circumstances of the case that the bainapatra was in fact executed by Harihar. Now expert evidence of this character being at the utmost evidence of an inconclusive nature and there being sufficient other evidence enabling the courts below to give a definite verdict on the question of the authenticity of Harihar''s signature in the disputed bainapatra, I do not think that any useful purpose would be served by remanding the case to the trial court for further consideration of this matter. I accordingly affirm the findings of the courts below that the bainapatra on which the suit is founded is a genuine document, and the purchase made by Defendants Nos. 2 and 3 the Appellants, was a subsequent purchase which was tainted with notice of Plaintiff''s agreement. That being the case there is no ground for interference with the findings of the courts below regarding the two main issues which I mentioned earlier in my judgment.

Mr. Biswas, however, raised a question of law which requires some consideration. He submitted that the courts below have directed specific performance of the contract of sale against Defendants Nos. 2 and 3, the Appellants and have dismissed the suit against Defendant No. 1. He contended that the decree is not in proper form and is not therefore a valid decree. He further argued that in order that such a decree may be a valid and proper decree, it should contain a direction that both the contractors and the subsequent purchasers would execute the conveyance. In support of this contention Mr. Biswas relied on a case Kafiladdin v. Samiraddin (1930) 34 C.W.N. 698 The casease cited by Mr. Biswas supports his contention that in a case of this description the proper decree to pass is to direct both the original contracting party and the subsequent purchaser to convey the property to the Plaintiff. Mr. Biswas contended that where a decree passed in such a suit gives a direction that the conveyance is to be executed only by either the contracting party or the subsequent purchaser, the decree is not only defective in form but in substance and it must be held to be an illegal and inoperative decree. In this connection Mr. Biswas further submitted that the suit having been dismissed against Defendant No. 1 who is Respondent No. 2 in this appeal, and who was the original contracting party and the Plaintiff Respondent not having preferred any independent appeal or filed any cross- objection, Respondent No. 2 can no longer be directed to execute the conveyance and the decrees passed by the courts below must be declared to be invalid. Mr. Sen, counsel on behalf of the Plaintiff Respondent submitted, on the other hand, that the so- called defect is a mere defect in form and not in substance. Although the argument advanced by Mr. Biswas appears plausible on the surface, I do not think there is any substance in that argument and that for two reasons. First, the trial court having held that Respondent No. 2 did execute a prior agreement in favour of the Plaintiff-Respondent and was bound by the agreement, the dismissal of the suit against him was an accidental slip because the agreement was the very foundation of the suit. To hold, as was held by the courts below, that Harihar executed a prior bainapatra in favour of the Plaintiff-Respondent which the latter is entitled to enforce specifically and then to dismiss the suit against Harihar is nothing but contradiction in terms, and must be regarded as an accidental slip which the High Court can certainly set right in the exercise of its inherent jurisdiction for doing that substantial justice between the parties for the administration of which alone the law courts exist. Secondly, this case seems to be covered by the authority of the Division Bench case cited by Mr. Biswas. In that case execution of the conveyance had been ordered as against the original contracting parties by the courts below and there was no direction upon the subsequent purchasers to execute any conveyance. It should, therefore, be held that by implication the prayer for giving such a direction upon the subsequent purchasers was refused which virtually amounts to a dismissal of the claim for specific performances of the contract against them. The Appellants of that appeal were the subsequent purchasers. It does not appear that the Plaintiff who wanted to enforce the contract specifically had taken any objection against the form of the decree by filing an independent appeal or by way of cross objection. Still the High Court allowed the decree to be modified by directing the subsequent purchasers to join in the conveyance. On principle there is no distinction between the facts of the case reported in 34 C.W.N. 698 and the facts of the present case. I, therefore hold that the defect in question is a mere defect in form and therefore I shall direct Respondent No. 2 to join in the conveyance along with the Appellants. The point of law raised by Mr. Biswas must, therefore, fail.

Mr. Biswas made a prayer that the courts below have not found that the Appellants'' kobala is void for want of consideration and so it is in the fitness of things that the unpaid consideration of Rs. 700 should be paid to his clients and not to Harihar who has already received the value of the half share of the disputed house from the Appellants. In this Court Harihar was also represented by a learned Advocate and he conceded that this amount of Rs. 700 may be paid to the Appellants. I shall give a suitable direction in the ordering portion of the judgment.

In the result this appeal must fail. It is accordingly, dismissed with costs to the Plaintiff-Respondent. For reasons given above I make the following modification in the form of the decrees passed by the courts below. The conveyance which is to be executed by way of specific performance of the contract, shall be executed not only by Defendants Nos. 2 and 3 of the trial court but by Defendant No. 1 as well. If they fail to execute the conveyance amicably within a month from this date, the conveyance will be executed on behalf of them all by the trial court. The amount of Rs. 700 which has been deposited by the Plaintiff-Respondent on account of the balance of consideration will be paid to Defendants Nos. 2 and 3 of the trial court after the execution of the conveyance. In all other respects the decrees passed by the courts below are hereby confirmed.