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IN THE HIGH COURT OF PATNA
S.N.P. Singh and S. Sarwar Ali, JJ.
Girdhar Das Anandji and Another - Appellants
Vs.
Jivaraj Madhavji Patel and Others - Respondent
F.A. No. 9 of 1965
Decided On: 19.08.1970
SPECIFIC PERFORMANCE OF CONTRACT - SUIT FOR - CONTRACT TO SELL LAND - JOINT FAMILY PROPERTY - KARATA - SALE BY KARATA - VALIDITY - SPECIFIC PERFORMANCE - SECTION 15 OF THE SPECIFIC RELIEF ACT, 1877 - APPLICABILITY - RETROSPECTIVE OPERATION - SECTION 12 OF THE SPECIFIC RELIEF ACT, 1963 - APPLICABILITY - LACHES - DELAY IN FILING SUIT - EFFECT.
Fact of the Case:
The plaintiff filed a suit for specific performance of a contract to sell land. The defendant contended that the property was joint family property and that he, as the Karta, had no authority to sell the entire property without the consent of the other co-sharers. The trial court decreed the suit in part, directing the defendant to execute a sale deed in respect of his half share in the property. The defendant appealed.
Finding of the Court:
The court held that the defendant was not the sole owner of the property and that the property belonged half to the defendant and half to the other co-sharers. The court also held that the agreement to sell the suit land was binding on the defendant in respect of his half share and that the plaintiff was entitled to a decree for specific performance of the contract in that regard. The court further held that Section 15 of the Specific Relief Act, 1877, was applicable to the case and not Section 12 of the Specific Relief Act, 1963, as the latter Act did not have retrospective operation. The court also held that there was no laches on the part of the plaintiff in filing the suit.
Issues: 1. Whether the defendant was the sole owner of the property or whether it was joint family property? 2. Whether the defendant, as the Karta, had the authority to sell the entire property without the consent of the other co-sharers? 3. Whether the agreement to sell the suit land was binding on the defendant in respect of his half share? 4. Whether the plaintiff was entitled to a decree for specific performance of the contract? 5. Whether Section 15 of the Specific Relief Act, 1877, or Section 12 of the Specific Relief Act, 1963, was applicable to the case? 6. Whether there was laches on the part of the plaintiff in filing the suit?
Ratio Decidendi: 1. The court held that the defendant was not the sole owner of the property and that the property belonged half to the defendant and half to the other co-sharers. The court relied on the evidence of the plaintiff and the other co-sharers, as well as the fact that the defendant had not produced any evidence to show that he was the sole owner of the property. 2. The court held that the defendant, as the Karta, did not have the authority to sell the entire property without the consent of the other co-sharers. The court relied on the provisions of the Hindu law, which require the consent of all the co-sharers for the sale of joint family property. 3. The court held that the agreement to sell the suit land was binding on the defendant in respect of his half share. The court relied on the fact that the defendant had signed the agreement and that he had received the earnest money from the plaintiff. 4. The court held that the plaintiff was entitled to a decree for specific performance of the contract. The court relied on the provisions of Section 15 of the Specific Relief Act, 1877, which allow a court to decree specific performance of a contract even if the defendant is unable to perform the whole of his part of the contract. 5. The court held that Section 15 of the Specific Relief Act, 1877, was applicable to the case and not Section 12 of the Specific Relief Act, 1963. The court held that Section 12 of the Act of 1963 did not have retrospective operation and that it could not be applied to a contract that was entered into before the Act came into force. 6. The court held that there was no laches on the part of the plaintiff in filing the suit. The court relied on the fact that the plaintiff had filed the suit within the limitation period and that he had a reasonable explanation for the delay in filing the suit.
Final Decision: The court allowed the appeal in part. The court confirmed the finding of the trial court that the plaintiff was entitled to a decree for specific performance of the contract. However, the court modified the decree of the trial court and directed the defendant to execute a sale deed in respect of his half share in the property on payment of the entire amount of consideration stipulated in the agreement. The court also directed the plaintiff to deposit the extra amount of Rs. 30,000/- in the court below within three months from the date of the judgment.
S. Sarwar Ali, J.
1. This appeal raises some interesting questions relating to a suit for specific Performance of contract. The plaintiff who is respondent no. 1 in this appeal, filed a suit for specific performance of contract on the allegation that defendant no. 1 on behalf of the joint family entered into a contract to sell the lands described in Schedule A of the plaint for a consideration of Rs. 60,000/-. In the alternative there was a claim for damages amounting to Rs. 31,500/-.
2. The case of the plaintiff, as made out in the plaint, is that the suit land belonged to one Jiwan Das Arya who sold the same to defendant no. 1 and his nephew Sundar Das Karsondas, the father of defendants 2 to 4 and husband of defendant no. 5, who constituted members of a joint Hindu family. Sundar Das Karsondas died in 1952 leaving behind defendants 2 to 5, who continued to possess the land in question with defendant no. 1. Defendant no. 1 is stated to be the Karta of the joint family. The joint family stood in need of money for legal necessity and defendant no. 1 on behalf of the joint family entered into a contract to sell the land in the suit for a consideration of Rs. 60,000/-. It was stated in the plaint that by an agreement dated 16.10.1959 defendant no. 1 for self and on behalf of defendants 2 to 5 agreed to sell to the plaintiff the suit land for a consideration of Rs. 60,000 and received Rs. 5000/- towards part payment thereof. The document i.e. sale deed had to be executed within one month of 16.10.1959. The plaintiff wrote several letters and approached the defendants to complete the sale by accepting the balance of the consideration amount but the matter was put off on one pretext or the other. The plaintiff made the necessary averment that he was always ready and willing to perform his part of the contract and was still so ready and willing. On these allegations the plaintiff prayed for a decree directing the defendants to execute and register the deed of sale in respect of the suit land on receipt of the balance of consideration of Rs. 55,000/-. The alternative claim of damage for Rs. 31,500/- consisted of: (a) damages due to difference in price of land Rs. 25,000/-, (b) the refund of the advance amount Rs. 5,000/- and (c) interest on the amount advanced at 12 per cent per annum.
3. The defence, as set out in the written statement of defendant no. 1, is the defendants 2 to 5 have been unnecessarily made parties to the suit as they had no interest in the property. There was no joint family consisting of defendant no. 1 and the other defendants and hence the question of defendant no. 1 being Karta or his entering into an agreement as a Karta did not arise. According to defendant no. 1 the property in question was purchased originally by the partnership firm M/s. N. Sundar Das and Company of 15 Clive Row, Calcutta. Subsequently on dissolution of the firm by the death of Sundar Das Karson Das the suit property became the exclusive property of defendant no. 1 according to terms of partnership. It was, therefore, in his capacity as the sole owner of the land in suit that he had entered into an agreement with the plaintiff. It was further averred that defendant no. 1 was all along ready and willing to execute the sale deed but the plaintiff refused to pay the balance of consideration money and get the sale deed registered. The written statement further states that the plaintiff agreed to cancel the alleged contract on 27.6.1951 on certain terms which were accepted by defendant no. 1. Although the cancellation was binding upon the parties, the plaintiff had filed the present suit in breach of the said contract. The claim for damages was denied and it was stated that there was no difference in the price during the period from October, 1959 to the date of filing of the plaint. The plaintiff, it was claimed, was also not entitled to the refund of the earnest money or to the interest as claimed.
4. On these pleadings the court formul
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