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High Court Of Himachal Pradesh
M.R.VERMA
HARNAM SINGH - Appellant
Versus
PURBI DEVI - Respondent
Regular Second Appeal No. 418 of 1993 Cross Objection No. 333 of 1994
Decided On : 09/07/1999
SPECIFIC PERFORMANCE - SALE AGREEMENT - ENFORCEABILITY - MUTUALITY - RECIPROCITY - BENEFICIARIES - FAMILY ARRANGEMENT - RATIFICATION - EVIDENCE - INTERPRETATION OF CONTRACT - SECTION 2, CONTRACT ACT, 1872.
Fact of the Case:
Plaintiffs filed a suit for specific performance of a contract dated September 14, 1984, by executing a sale deed for 8/45 share in land comprising Khata No. 6, Khatoni Nos. 12, 13, Khasra Nos. 82 min, measuring 0-10-76, Khata No. 14 min, Khatoni No. 29, Khasra Nos. 90, 395, 397, measuring 0-47-68, total area 0-58-44, more specifically detailed in the Jamabandi for the year 1980-81, situate in Mohal Kanda, Mauza Thana Bargran, Sub-Tehsil Baroh, District Kangra (hereafter referred to as the suit land), for Rs. 22,225/- and in the alternative for the recovery of Rs. 15,750/-, i.e. Rs. 10,500/- paid as earnest money and Rs. 5,250/- as damages/interest thereon for the period from September 14, 1984 to July 14, 1985.
Finding of the Court:
1. The agreement Ext. PW-1/A dated September 14, 1984, had been executed by defendant Purbi Devi on one hand and the plaintiff Harnam Singh on the other. Defendant Purbi Devi had agreed vide agreement Ext. PW-1/A to sell her land to plaintiff Harnam Singh, Surjeet Singh, Pratap Singh, and Hariom, admittedly, a minor, for consideration and had received earnest money in the sum of Rs. 10,500/- at the time of execution of the agreement. 2. The agreement Ext. PW-1/A is not enforceable against the plaintiffs other than plaintiff Harnam Singh, being strangers to the agreement, and consequently not enforceable by them. 3. The plaintiffs other than plaintiff Harnam Singh, being strangers to the agreement Ext. PW-1/A, are not bound by the said agreement. Thus, there is a lack of mutuality and reciprocity of the binding nature of the agreement between them and defendant Purbi Devi. 4. The findings of the first appellate Court that defendant Purbi Devi had received a sum of Rs. 10,500/- vide agreement Ext. PW-1/A call for no interference.
Issues: 1. Whether the defendant No. 1 executed a valid agreement/contract dated 14-9-1984 in favor of the plaintiffs? 2. If issue No. 1 is proved, whether the plaintiffs were willing to perform the terms of agreement dated 14-9-1984? 3. Whether the plaintiffs have got no cause of action and locus-standi to sue? 4. Whether the suit is bad for mis-joinder and non-joinder of parties? 5. Whether the act and conduct of the plaintiffs is a bar to the present suit? 6. Whether the suit is prematured and not maintainable? 7. Whether the suit is not maintainable in the present form? 8. Whether the suit is properly valued for the purposes of Court-fee and jurisdiction? 9. Whether the alleged agreement deed is a forged document and without consideration as alleged? 10. Relief.
Ratio Decidendi: 1. The doctrine of privity of contract implies a mutuality at will and is interaction of parties and their successors. It creates a legal bond or tie or vinculum juris personal to the parties. 2. A person cannot be subject to the obligation of a contract to which he is not a party and the logical consequence is that a stranger cannot acquire rights under a contract. 3. The exceptions to the general rule that a stranger cannot enforce a contract are beneficiaries under a trust created by a contract, or in the case of a family arrangement. 4. The plaintiffs other than plaintiff Harnam Singh, being strangers to the agreement Ext. PW-1/A, do not fall under any of the aforesaid categories of beneficiaries. Therefore, the plaintiffs other than plaintiff Harnam Singh, being strangers to the agreement Ext. PW-1/A, are not bound by the said agreement. 5. The agreement Ext. PW-1/A is not enforceable against them and consequently not enforceable by them.
Final Decision: The appeal as well as the Cross Objections are dismissed leaving the parties to bear their own costs.
1. This judgment shall dispose of the above appeal and the connected cross objections.
2. Brief facts leading to the presentation of the present appeal and the cross objections are that the appellants/plaintiffs (hereafter referred to as the plaintiffs) instituted a suit for possession by way of specific performance of contract dated September 14, 1984 by executing a sale deed qua 8/45 share in land comprising Khata No. 6, Khatoni Nos. 12, 13, Khasra Nos. 82 min, measuring 0-10-76, Khata No. 14 min, Khatoni No. 29, Khasra Nos. 90, 395, 397, measuring 0-47-68, total area 0-58-44, more specifically detailed in the Jamabandi for the year 1980-81, situate in Mohal Kanda, Mauza Thana Bargran, Sub-Tehsil Baroh, District Kangra (hereafter referred to as the suit land), for Rs. 22,225/- and in the alternative for the recovery of Rs. 15,750/-, i.e. Rs. 10,500/- paid as earnest money and Rs. 5,250/- as damages/interest thereon for the period from September 14, 1984 to July 14, 1985.
3. The case of the plaintiffs as made out in the plaint is that respondent/defendant Purbi Devi (here-after referred to as defendant No. 1) owns that suit land, she entered into an agreement dated September 14, 1984 with the plaintiffs thereby agreeing to sell the land in suit to the plaintiffs at the rate of Rs. 1500/- per Kanal for a total consideration of Rs. 22,225/- and also agreed to execute the sale deed on or before July 31, 1985. An earnest money in the sum of Rs. 10,500/- was received by her on September 14, 1984 the day when the agreement was executed with the condition that if she failed to execute the sale deed within the specific time, she would return the said earnest money with interest at the rate of 5% per month. On the other hand, the plaintiffs stipulated that if they failed to get the execution of the sale deed made by July 31, 1985, the earnest money paid would stand forfeited. After the execution of the said agreement, defendant No. 1 Purbi Devi firstly approached defendant/respondent No. 2 (here-after referred to as defendant No. 2) for selling the suit land. When the plaintiffs came to know about it, they served the defendants No. 1 and 2 with a notice dated March 14, 1985 requiring them to desist from effecting the sale or any other transfer of the suit land. The said notice was not replied to. Subsequently, defendant No. 1 agreed to execute the sale deed on June 26, 1985 at Kangra when the plaintiffs waited for her at Kangra but she did not turn up, hence another notice was served on defendant No. 1 reminding her all the instructions for the materialisation of the sale as per the stipulation in the agreement. This notice was replied by defendant No. 1 whereby she denied the execution of the agreement and refused to comply with the conditions thereof. Thereafter defendant No. 1 negotiated the sale of the suit land with defendant No. 2 and defendant/respondent Barraro Ram (here-after referred to as defendant No. 3) with dishonest and mala fide intention and to defeat the valuable rights of the plaintiffs. It is further claimed that ever-since the execution of the agreement, the plaintiffs had always been ready and willing to perform their part of the contract and are still willing to do so. However, the defendant No. 1 has refused to perform her part of the contract, hence the suit.
4. The defendants contested the claim of the plaintiffs by filing separate written statements. Defendant No. 1 in her written statement took the preliminary objections that the plaintiffs have no cause of action and locus standi to sue, that the suit is bad for mis-joinder and non-joinder of parties, that the suit is not properly valued for the purposes of Court fee and jurisdiction, that the suit as framed is not maintainable, that the suit is premature and not maintainable and that the suit is barred by the act and conduct of the plaintiffs.
5. On merits, the case as set up in the plaint has been denied and it has been averred that the replying defe
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