IMPORTANT POINT
Specific performance of a contract may be obtained by representative in interest or principal or any party thereto.

Mungeshwar Sahoo, J.—The Plaintiffs have filed this Second Appeal against the Judgment and Decree dated 27.01.2000 passed by the learned Ist Addl. District Judge, Khagharia in title appeal No.1 of 1987 whereby the learned lower appellate Court dismissed the appeal and thereby confirmed the Judgment and Decree dated 27.09.1986 passed by the learned Subordinate Judge, Khagaria in title suit No.69 of 1983.

2. The plaintiffs-appellants filed the aforesaid suit for specific performance of contract on facts inter alia that the son and grand son of Kishori Lal were in possession of the suit property. They were in need of money of Rs.5,000/-, therefore, they approached the defendant Ist party, i.e., Kaleshwar Prasad Singh to advance loan who agreed on condition that a sale deed in favour of defendant 2nd party Smt. Indira Devi is executed in respect of suit houses and if the plaintiff pay back the loan of Rs.5,000/- before July, 1984. Accordingly, a sale deed with a condition for repurchase with respect to the house in question was executed in favour of defendant 2nd party. The defendant first party paid the loan. The sale deed was executed on 05.08.1977. Subsequent to that deed, there was a partition in the year 1978 in the family of the plaintiff and the property failed in exclusive share of plaintiff 2nd party, i.e., Kishori Lal. He executed a deed of gift deed on 17.03.1983 in favour of the plaintiff Ist party, i.e., Veena Gupta in respect of suit house who tendered the amount. It is stated that the defendant Ist party is the father of defendant 2nd party. The defendant 2nd party is only a name lender but the defendant No.1 avoided to accept the amount.

3. The further case of the plaintiff is that the defendant Ist party was month to month tenant of the plaintiff 2nd party in respect of the suit house. After execution of the conditional sale deed, he became the purchaser of the house. After tendering the amount, the plaintiff-Ist-party became the landlord and there was relationship of landlord and tenant between the plaintiff-Ist-party and the defendant-Ist-party. She also requires the suit property for her personal occupation. She tendered the amount of Rs.5,000/- to the defendant Ist party and the plaintiff Ist party was ready and willing to pay consideration amount.

4. The defendant No.1 and the defendant No.2 both filed separate contesting written statement. According to the defendant No.1 the gift deed executed in favour of plaintiff Ist party is void, therefore, title did not confer on the plaintiff Ist party. As such she has no right to obtain the decree for specific performance of contract.

5. Since no title passed to the plaintiff Ist party, there was no relationship of landlord and tenant between the parties. The plaintiff has got sufficient accommodation, therefore the requirement of the plaintiff is not bonafide. The defendant No.1 is only a tenant. The consideration amount was never tendered to her by the plaintiff No.1 nor she ever received any advocate notice. The trial Court dismissed the plaintiff’s suit recording a finding that the gift deed of the plaintiff No.1 executed by plaintiff No.2 is void document. The trial Court also recorded a finding that the plaintiff did not tender the amount to the defendant No.2, therefore, she was not ready to perform her part of the contract. On appeal, the lower appellate Court only recorded the finding that the plaintiff No.1 gift deed is voidable document. Therefore, the plaintiff No.1 had not acquired any title. On this finding alone, the lower appellate Court dismissed the plaintiff’s appeal.

6. On 23.07.2003, at the time of admission of the second appeal the following 3 substantial question of law were formulated.

(i) Whether the Courts below committed error in dismissing the suit of the plaintiff on wrong approach and on consideration of an issue which was not material for the purpose of adjudication of the suit?

(ii) Whether the Courts below committed e