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1990 Supreme(Pat) 63
PATNA HIGH COURT
S.B.Sinha, J.
Triloki Vishwakarma Alias Triloki Mistri
Versus
Zaitun Nisa
Appeal from Original Decree No. 42 of 1984 ;
Decided On : FEBRUARY 13, 1990
A coparcener does not have the right to alienate the undivided share in the joint family property without the consent of the other coparceners.
Headnote:
SPECIFIC PERFORMANCE OF CONTRACT - LIMITATION - URBAN LAND (CEILING AND REGULATION) ACT, 1976 - SECTION 27 - SPECIFIC RELIEF ACT, 1963 - SECTION 12(3) - HINDU LAW - COPARCENERS - RIGHT TO ALIENATE PROPERTY - PARTITION - DECREE - ALLOTMENT OF PROPERTY - EQUITABLE RELIEF - DAMAGES - INTEREST - EXEMPLARY COSTS.
Fact of the Case:
Plaintiff-respondent filed a suit for specific performance of an agreement of sale dated 8-5-1979, whereby the defendant-appellant agreed to transfer 854 square feet of land for a consideration of Rs. 21,500. The plaintiff paid Rs. 13,500 as advance and Rs. 600 on 16-5-1979. The defendant denied the execution of the agreement and contended that the suit was barred by limitation and that he could not sell a specific portion of the property as it belonged to a joint Hindu Mitakshara coparcenary family. The plaintiff argued that the limitation period began to run from the date the defendant refused to perform the contract and that she was ready and willing to perform her part of the contract.
Finding of the Court:
The court held that the limitation period began to run from the date the plaintiff received notice that the defendant refused to perform the contract, which was after the Supreme Court held Section 27 of the Urban Land (Ceiling and Regulation) Act, 1976, to be unconstitutional. The court also held that the plaintiff was not required to examine herself in court to prove her readiness and willingness to perform the contract, as she was a Muslim lady and had executed a power of attorney in favor of her husband to file the suit and take other steps. The court further held that the defendant, as a coparcener, had no right to alienate the undivided share in the joint family property without the consent of the other coparceners, and that the plaintiff was not entitled to a decree for specific performance of the contract.
Issues: 1. Whether the suit was barred by limitation? 2. Whether the plaintiff was required to examine herself in court to prove her readiness and willingness to perform the contract? 3. Whether the defendant, as a coparcener, had the right to alienate the undivided share in the joint family property without the consent of the other coparceners?
Ratio Decidendi: 1. The limitation period for a suit for specific performance of a contract begins to run from the date the plaintiff receives notice that the defendant refuses to perform the contract. 2. A Muslim lady is not required to examine herself in court to prove her readiness and willingness to perform a contract if she has executed a power of attorney in favor of her husband to file the suit and take other steps. 3. A coparcener does not have the right to alienate the undivided share in the joint family property without the consent of the other coparceners.
Final Decision: The appeal was partly allowed. The judgment and decree of the lower court were modified to the extent that the plaintiff was awarded interest on the advance amount at the rate of 12% per annum from the date of the agreement until the date of the judgment, and exemplary costs of Rs. 5,000.
1. This suit at the instance of the defendant arises out of a judgment and decree dated 10-2-1984 passed by Shri Dinesh Narayan Pathak, Special Sub-Judge, Ranchi in Title Suit No. 220 of 1982; whereby and whereunder the said learned court decreed the plaintiff-respondents suit.
2. The plaintiff-respondent filed the aforementioned suit for a decree for specific performance of agreement of sale dated 8-5-1979. By reason of the said agreement the defendant agreed to transfer 854 Square feet of land in M.S. plot No. 206 bearing holding No. 583 appertaining to Ward No. 5 of Ranchi Municipality for a consideration of Rs. 21,500/
3. The plaintiff allegedly paid a sum of Rs. 13,500/ - by way of advance to the defendant on the date of execution of the aforementioned agreement dated 8-5-1979 and further paid sum of Rs. 600.00 on 16-5-1979.
4. In terms of the aforementioned agreement and for sale dated 8-5-1979 which was marked as Ext. 3, the defendant was to execute a registered deed of a sale in favour of the plaintiff within six months from the date of receipt of permission granted by competent authority in terms of S. 27 of the Urban Land (Ceiling and Regulation) Act 1976.
5. The defendant in his written statement denied the execution of the said agreement. The defendant further contended that the suit was barred by limitation.
6. The defendant also contended that in any event as he had merely 1 / 5th share, in the property in suit and as such the said agreement is void.
7. The defendant further contended that the lands in question amongst others were the subject matter of a partition suit which was filed by one of his co-sharers in which a preliminary decree has been passed.
8. Before the learned court below, the plaintiff categorically stated that she was ready and willing to pay the entire consideration amount stipulated in the aforementioned agreement dated 8-5-1979 and she is also ready and willing to relinquish all her claim of damages, if a decree for specific performance of the agreement in question is granted in respect of a portion of the property.
9. It is admitted that 1/5th share belonging to the defendant in the plot in question will be 426 square feet out of the suit land which is 854 square feet in area.
10. Learned court below, therefore, granted a decree for specific performance of contract in respect of the aforementioned 426 square feet of the land with structures standing thereupon directing the plaintiff to deposit the balance sum of Rs.7, 400.00.
11. Mr. V. Shivnath learned counsel appearing on behalf of the appellant raised three contentions in support of the appeal.
12. Firstly he submitted that as no time was fixed for performance of contract, in terms of Art. 54 of the Schedule appended to the Limitation Act 1963, the time shall begin to run from 8-5-1979 i.e. date agreement or 16-5-1979 i.e. date of payment of a sum of Rs. 600/ - and as the suit was filed on 15-9-1982 the same being beyond the period of limitation, the suit was barred by limitation.
13. Learned counsel secondly contended that in view of the fact that the plaintiff herself was not examined and further in view of the fact that only on the date of the institution of the suit, she executed a power of attorney in favour of her husband who examined himself as P.W. 12, he was not competent to depose on behalf of the plaintiff as to whether prior to 15-9-1982, the plaintiff was ready and willing to perform her part of contract or not. According to the learned counsel in view of Sec. 16(c) of the Specific Relief Act 1963, it was incumbent upon the plaintiff to plead and prove that she at all material times was and still is ready and willing to perform her part of contract and in view of fact that she did not examine herself the factum of readiness and willingness to perform the part of contract the part of the plaintiff was not proved.
14. Learned counsel in this connection has relied upon a decision of the Patna High Court in Nawal Kishore
