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PATNA HIGH COURT
Sinha, J.
Babu Rameshwar Prasad Sahi
Versus
Mst.Anandi Devi
Appeal From Appellate Decree No. 1360 of 1950 ;
Decided On : SEPTEMBER 01, 1955
SPECIFIC PERFORMANCE - CONTRACT FOR SALE OF LAND - MINOR'S PROPERTY - BENEFIT TO MINOR - LACHES - ABANDONMENT OF CONTRACT - WAIVER - SPECIFIC PERFORMANCE OF PART OF CONTRACT - DIVISIBILITY OF CONTRACT - MUTUALITY OF CONTRACT.
Fact of the Case:
Plaintiff sued for specific performance of a contract for sale of land entered into by defendant 1 for self and as guardian for defendant 2, a minor. Defendant 1 received Rs. 555/- as earnest money. The Munsif found that defendant 1 had entered into a contract with the plaintiff for sale of the lands, as alleged by the plaintiff, and that she had received a sum of Rs. 555/- as earnest money. However, he found that the contract for sale of the lands in question was not for the benefit of defendant 2 and, as such, was not binding upon defendant 2, and that the kehala was not registered on account of the laehes of the plaintiff and so no decree for specific performance and possession could be passed because those laches amounted to abandonment of the contract and of the right of the plaintiff for specific performance. In that view of the matter, the suit was dismissed. There was, however, a decree for refund of Rs. 555/- by defendant 1 to the plaintiff. On appeal, those findings arrived at by the learned Munsif have been upheld and the suit has been dismissed.
Finding of the Court:
The Court found that the contract for sale of the lands in question was not for the benefit of defendant 2, a minor, and, as such, was not binding upon defendant 2. The Court also found that the plaintiff was guilty of laches in not taking steps to register the sale deed for about 12 months, which amounted to abandonment of the contract and waiver of his rights to sue for specific performance. The Court further held that the contract was indivisible and, therefore, specific performance could not be granted in respect of the share of defendant 1 only.
Issues: 1. Whether the contract for sale of the lands in question was for the benefit of defendant 2, a minor, and, as such, was binding upon defendant 2? 2. Whether the plaintiff was guilty of laches in not taking steps to register the sale deed for about 12 months? 3. Whether the contract was indivisible and, therefore, specific performance could not be granted in respect of the share of defendant 1 only?
Ratio Decidendi: 1. The Court held that the contract for sale of the lands in question was not for the benefit of defendant 2, a minor, and, as such, was not binding upon defendant 2, as it was evident that only 12 kathas of land were to be acquired in village Sisai and for that purpose there was already a sale deed in favour of Basawan for 1 bigha of land and another sale deed for 10 kathas of land in favour of one Tappi. Besides these 1 bigha and 10 kathas of land, 3 bighas 14 kathas and 21/2 dhurs were to be sold to the plaintiff for acquisition of 12 kathas of land in village Sasai. On the very face of it, therefore, the transaction was not for the benefit of defendant 2, a minor at the time of the execution of the sale deed. 2. The Court held that the plaintiff was guilty of laches in not taking steps to register the sale deed for about 12 months, which amounted to abandonment of the contract and waiver of his rights to sue for specific performance. The Court observed that the plaintiff should have made efforts for getting the document registered, he should have asked defendant 1 to admit registration of the document; on her failure or refusal to do so, steps should have been taken by him under Section 77, Registration Act for compulsory registration of the document. The plaintiff did not do anything of the kind, and absolutely, no action was taken by him. This inaction of the plaintiff for about one year disentitled him to relief by way of specific performance. 3. The Court held that the contract was indivisible and, therefore, specific performance could not be granted in respect of the share of defendant 1 only. The Court relied on the principle that a contract for sale of property in one lot will generally be considered indivisible, and that the purchaser of the entirety will not be compelled to take undivided parts or shares of the estate.
Final Decision: The appeal was dismissed, with costs.
Sinha, J.
1. The plaintiff is the appellant, and the appeal arises out of a suit for specific performance of a contract for sale and for possession of the suit lands. Defendant 1 is the grandmother of defendant 2. Defendant 2, then a minor, entered into a contract for sale with the plaintiff in respect of 3 bighas 14 kathas 21/2 dhurs of land in village Baruraj, district Muzaffarpur, for a consideration of Rs. 1,000/-.
The stamps for the sale deed were purchased and the document was executed by defendant 1 for self and as guardian for defendant 2, and a .sum of Rs. 555/- was paid by the plaintiff out of the consideration money. The plaintiffs case further is that defendants 1 and 2 are residents of village Sisai, and these lands in suit were in village Baruraj.
The defendants wanted to sell off their lands in village Baruraj and buy lands in village Sisai. In September 1945, the defendants needed money for taking settlement of 12 kathas of land in village Sisai for a consideration of Rs. 1,300/-. Defendant 1 went to the Registration office on 21-9-1945, along with the plaintiff, but the document could not be registered on account of the absence of the Sub-Registrar.
Thereafter, it is alleged, defendant 1 fell ill and remained confined to bed for about six months, and, after her recovery, when the plaintiff wanted the registration of the document, defendant 1 refused.
2. The defence was that a portion of the property was the separate property of defendant 2 and defendant 1 had no right to enter into a contract on behalf of defendant 2, and that no money was needed by the defendants in September, 1945. It was also alleged that, on the very date when the document in question was to be registered, namely, 21-9-1945, defendant 1 had executed a kebala in favour of Basawan Sahi, and in connection with that kebala, Basawan Sahi, a friend and neighbour of the plaintiff, in collusion with the plaintiff, had fraudulently obtained thumb marks of defendant 1 on several stamp papers, and defendant 1 feared that some of those stamp papers were converted into the kebala in question. There was complete denial of any receipt of money from the plaintiff.
3. The learned Munsif found that defendant 1 had entered into a contract with the plaintiff for sale of the lands, as alleged by the plaintiff, and that she had received a sum of Rs. 555/- as earnest money. He, however, found that the contract for sale of the lands in question was not for the benefit of defendant 2 and, as such, was not binding upon defendant 2, and that the kehala was not registered on account of the laehes of the plaintiff and so no decree for specific performance and possession could be passed because those laches amounted to abandonment of the contract and of the right of the plaintiff for specific performance.
In that view of the matter, the suit was dismissed. There was, however, a decree for refund of Rs. 555/- by defendant 1 to the plaintiff.
4. On "appeal, those findings arrived at by the learned Munsif have been upheld and the suit has been dismissed.
5. Mr. Kailash Rai, appearing on behalf of the appellant, has submitted -- (1) that there was, benefit to the minor; (2) that there were no laches amounting to abandonment of the contract or waiver by the plaintiff; and (3) that even if there was no benefit to defendant 2, the plaintiff was entitled to a decree for specific performance in respect of the lands equivalent to the share of defendant 1.
6. It should be noted that defendant 2, who was supposed to be minor at the time of the execution of the sale deed in question, has attained majority before the suit was brought on 11-9-1946. Both the Courts below agree, in finding that there was no benefit to defendant 2 by the transaction in question. This is a question of fact, and it is not open to the appellant to go behind that finding in second appeal.
The Court has found that only 12 kathas of land were to be acquired in village Sisai and for that purpose there
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