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GAUHATI HIGH COURT
B. N. SARMA AND R. S. BINDRA, J.
Nirmala Sundari Dutta Choudhary and another -Appellant
Versus
Kumode Bandhu Deb -Respondent
Second Appeal No. 29 of 1967
Decided On : 30-09-1974
SPECIFIC PERFORMANCE - PART PERFORMANCE - SECTION 17 OF THE SPECIFIC RELIEF ACT, 1877 - APPLICABILITY - WAIVER OF THE PROVISIONS OF SECTION 17 - SALE DEED EXECUTED BY VENDOR IN FAVOUR OF ONE OF THE PROMISEE - REMAINING PROMISEE ENTITLED TO SPECIFIC PERFORMANCE OF THE REMAINING PART OF THE CONTRACT.
Fact of the Case:
Plaintiff filed a suit for specific enforcement of an agreement dated 28-3-1960 executed by the defendant No. 1 Mangalia Munda in his favour and in favour of Upendra Chandra Das. The suit was dismissed by the trial Court but was decreed on appeal by the learned Additional District Judge, Tripura.
Finding of the Court:
The Court held that the agreement had actually been concluded not between the defendant No. 1 and the defendant No. 2, as set out in the written statement, but between the plaintiff and defendant No. 2 on one hand and defendant No. 1 on the other, that the Bainapatra Ext. P-1 was a genuine document, and that defendants Nos. 3 and 4 were well aware of the agreement dated 28-3-1960 when they purchased 6 kanis of land on 6th of April, 1960. The Court further held that the contract being for 8 kanis of land and the vendor having already sold 2 kanis to one of the promisees namely, the defendant No. 2, the plaintiff could under the circumstances claim specific enforcement of the agreement respecting 6 kanis and not more.
Issues: 1. Is the suit barred by limitation? 2. Whether the contract for sale of land by defendant No. 1 was made with the plaintiff and the pro-defendant No. 2 or with the pro-defendant No. 2 alone? 3. Is the bainapatra true and genuine? 4. Whether the pro-defendants Nos. 3 and 4 are bona fide purchasers of land for valuable consideration without any knowledge of the prior contract for sale? 5. Is the plaintiff entitled to get any kabala in respect of the suit lands? 6. What relief, if any, is the plaintiff entitled to get?
Ratio Decidendi: 1. Section 17 of the Specific Relief Act, 1877, by which the present appeal is governed, forbids specific performance of a part of contract except in cases falling under Sections 14, 15 and 16, and that the present case does not fall under either of those three sections. 2. The provisions contained in Sections 14 to 17 of the Act "do not involve any questions of public policy" and as such it is "perfectly open to the contracting parties to waive the benefits conferred by these sections and to restrict and regulate their rights by inserting suitable provisions in the contract". 3. The defendants having not raised any plea bearing on the provisions of Section 17, and further they having claimed no specific issue in that connection, they had no right to pray at the stage of arguments before the trial Court to dismiss the suit on the contention that it had infringed the terms of Section 17. 4. The question of the Court directing the specific performance of a part of contract would arise only when the whole of the contract, as on the date of the suit, is capable of implementation in a manner bigger and to the extent larger than what is claimed in the suit. 5. The plaintiff is not asking for part performance of the contract. The prayer made by him, in fact, would alone carry out the agreement dated 28-3-1960 in its entirety. If his suit is dismissed, then that agreement would be carried out only in part and the provisions of Section 17 would stand violated.
Final Decision: The appeal was dismissed with costs to the plaintiff-respondent. The Court directed that the sale deed in favour of the plaintiff respecting 6 kanis of land shall be executed by Mangalia Munda, Nirmala Sundari and Shyam Lal. If, however, they fail to come forward to do the needful the Court shall execute the sale deed on their behalf in favour of the plaintiff.
BINDRA, J.:- This second appeal by two out of four defendants arises out of a suit filed by Kumode Bandhu Deb for specific enforcement of an agreement dated 28-3-1960 executed by the defendant No. 1 Mangalia Munda in his favour and in favour of Upendra Chandra Das. The suit was dismissed by the trial Court but was decreed on appeal by the learned Additional District Judge, Tripura.
2. The plaintiff alleged that on 28-3-1960 an agreement in writing, which was duly registered, was concluded between him and Upendra Chandra Das on one hand and Mangalia Munda on the other respecting 8 kanis of land situate in village Chaliajala. The sale price was settled at Rs. 1,000/- out of which Rs. 300/- was paid as earnest money. It was agreed that Mangalia Munda would execute sale deed within the next three months on receipt of the balance sum of Rs. 700/-. It was alleged further that it was also settled that the plaintiff would purchase 6 kanis and the defendant No. 2 would go in for 2 kanis, and that the advance payment of Rs. 300/- made to Mangalia Munda was contributed in that share by the plaintiff and the defendant Upendra Ch. Das.
However, the plaintiff pleaded further, at the instance of persons inimically disposed towards him and with the object of making some illegal gains, the defendant Mangalia Munda sold 2 kanis of land to Upendra Chandra Das and the balance of 6 kanis to Nirmala Sundari and Shyam Lal, respectively the defendants Nos. 3 and 4, for an apparent total consideration of Rs. 2,000/- which was twice the amount for which the sale agreement had been concluded on 28th of March, 1980. The sale deeds in favour of defendants Nos. 2, 3 and 4 were all executed on 6-4-1960, that is to say, only nine days after the original agreement. Since the defendant No. 2 Upendra Chandra Das was entitled to purchase only 2 kanis in terms of the agreement dated 28-3-1960 and he had purchased that much area from the vendor on 6th of April, 1960, the plaintiff prayed that he be granted a decree for specific enforcement of the sale agreement respecting the balance of 6 kanis of land on declaring the sales made by the vendor in favour of defendants Nos. 3 and 4 as void.
3. The defendants set up a monolithic defence through a joint written statement. The main contentions raised were that the agreement dated 28-3-1960 had actually been concluded between Mangalia Munda and Upendra Chandra Das, that the entire earnest money had been paid by the latter to the former, that since the defendant No. 2 had not been able to arrange the entire money for purchase of 8 kanis, he had settled with the vendor to take 2 kanis against payment of Rs. 500/-, and that since the plaintiff was not prepared to pay Rs. 500/- for the remaining 6 kanis of land, the vendor had sold those 6 kanis for that much consideration to defendants Nos. 3 and 4. It was denied that defendants Nos. 3 and 4 had any knowledge about the agreement, dated 28-3-1960, when they purchased 6 kanis of land from Mangalia Munda on 6th of April, 1960. The defendants also raised the plea of limitation.
4. The trial Court settled the following issues between the parties.
(1) Is the suit barred by limitation ?
(2) Whether the contract for sale of land by defendant No. 1 was made with the plaintiff and the pro-defendant No. 2 or with the pro-defendant No. 2 alone ?
(3) Is the bainapatra true and genuine ?
(4) Whether the pro-defendants Nos. 3 and 4 are bona fide purchasers of land for valuable consideration without any knowledge of the prior contract for sale?
(5) Is the plaintiff entitled to get any kabala in respect of the suit lands?
(6) What relief, if any, is the plaintiff entitled to get ?
5. By its judgment dated 18-6-1962 the trial Court held that issue No. 1 was not pressed before it, that the agreement had actually been concluded not between the defendant No. 1 and the defendant No. 2, as set out in the written statement, but between the plaintiff and defendant No. 2 on one hand and defenda
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