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1968 DIGILAW 46 (GAU)

Hem Chandra Choudhury v. Ajadhya Bala Choudhury

1968-05-24

S.K.DUTTA

body1968
This is a second ap­peal. The plaintiff's case is as follows: The plaintiff took lease for 8 years of 4 kathas of land of dag No. 399 of K. P. Patta No. 799 at Bharalumukh, Gauhati from defendant No. 1 for the purpose of constructing dwelling houses. The lease was dated 9-6-39 and was duly register­ed. In pursuance of the terms of the lease the plaintiff spent about Rs. 500/- in fil­ling up the land and he constructed two houses of permanent nature and a pucca latrine at a cost of Rs. 2500/-. There­after on 24-4-46 defendant No. 1 execut­ed and registered another lease in conti­nuance of the previous lease. This second lease was for 4 kathas 7 lessas of land of the aforesaid dag and it was for 10 years with effect from 1st Bahag 1353 B. S. One of the terms of these leases was that if at any time the lessor wanted to sell the demised land she would sell the same to the lessee on payment of a rea­sonable price thereof. In pursuance of the said terms defendant No. 1 sold 1 katha 8 lessas of the demised land to the plaintiff at Rs. 3500/- per katha by a re­gistered sale deed dated 16-8-54. Defen­dant No. 1 further assured the plaintiff that if and when found necessary, she would sell the demised land to the plain­tiff at a reasonable price. Then on receiv­ing an ejectment notice dated 24-11-56 the plaintiff learnt that the defendant No. 1 purported to sell 1 katha of the demised land to defendant No. 2 by a sale deed dated 1-2-51 at Rs. 4000/-. The plaintiff was not aware of this sale, nor the defendant No. 1 ever in­formed the plaintiff of her intention to sell the land in question. The defendant No. 1 by selling the said land to defendant No. 2 broke the terms of the con­tract entered into with the plaintiff. The sale of the land by defendant No. 1 to defendant No. 2 was collusive and with­out consideration and fraudulent. The plaintiff therefore has prayed for speci­fic performance of the contract for sale and in the alternative a decree for Rs. 3000/- as compensation for breach of contract. 2. The trial Court dismissed the suit on contest with cost. The first appellate Court upheld the dismissal of the suit, but relieved the plaintiff of the cost. The plaintiff therefore has prayed for speci­fic performance of the contract for sale and in the alternative a decree for Rs. 3000/- as compensation for breach of contract. 2. The trial Court dismissed the suit on contest with cost. The first appellate Court upheld the dismissal of the suit, but relieved the plaintiff of the cost. Hence this appeal by the plaintiff. 3. The first Appellate Court held that the plaintiff had no knowledge of the sale of the suit land by defendant No. 1 to defendant No. 2. It further held that defendant No. 2 was not a bona fide pur­chaser for value without notice. But the first Appellate Court dismissed the suit on the ground that no contract between the plaintiff and the defendant arose out of the stipulation in the lease that if the lessor wanted to sell the land, she would sell the same to the lessee on payment of a reasonable price thereof. 4. The said stipulation which is con­tained in paragraph 6 of the lease (Ex. 4) is in Assamese and it runs as follows: (Stipulation in para 6 of the lease was here quoted in Assamese.) (Be it stated that if I, the first party, am ever required to sell the land describ­ed in the schedule and if you, the second party, agree to purchase the same at a reasonable price, I shall sell it to you.) 5. In interpreting the above stipula­tion the first Appellate Court relied on two cases viz., C. Govindaswami Pillai v. Doraiswami Mudali, AIR 1926 Mad 120 and V. Alagarsami Naidu v. Kathia Goun­dan, AIR 1931 Mad 799 . In AIR 1926 Mad 120 the stipulation was as follows: "If it so happens that I have to sell it (the property) out of necessity, I will sell it to you for Rs. 60 and I bind my­self to take the money from you and con­vey the land to you. I will give you ten days' time from the date of my propos­ing to sell it within which time you should pay me the money and take the sale-deed from me. But if you fail to pay the money within 10 days I will overlook your right and claim and I will be at liberty to sell it as I like." 6. But if you fail to pay the money within 10 days I will overlook your right and claim and I will be at liberty to sell it as I like." 6. The Court held that this stipula­tion did not amount to a contract at all, but it was only a binding offer and that the document could not be treated as a contract for there was nothing in it to compel the defendant concerned to buy the property on the terms set out in it. In AIR 1931 Mad 799 the document con­tained the following stipulation: "As I have taken a sale deed from you of the site and the house mentioned be­low, I will be residing in the said site and house. While I so reside neither I nor my heirs shall mortgage or hypothe­cate or otherwise alienate the property. If myself or my heirs should not like to reside in the said site and house, we shall recovery the property to you for a price not exceeding the sale price of Rs. 60/-." 7. The Court observed that in this case there was no agreement absolutely binding on the purchaser to sell it with­in a particular tune or at any time at all. He was bound to sell it back when­ever he thought of parting with the pro­perty. It was, therefore, held that there was no offer but only an undertaking to make an offer and thus there was no case for specific performance of contract. It may be noted that in both the above cases the decisions were of a Single Judge. The matter came up before a Full Bench of the same High Court (Madras High Court), in Venkatachalam Pillai v. Sethuram Rao, AIR 1933 Mad 322 (FB). In this case the Court refer­red to the decision of the Privy Council In Sakalaguna Nayudu v. Chinna Munu-swami Nayakar, AIR 1928 PC 174. I may, therefore, first discuss the deci­sion of the Privy Council in that case. In that case the counterpart to the sale-deed provided that the vendee should re-convey the property to the vendor after d period of 30 years from that date in case the vendor wished to have the pro­perty again and upon his paying a sum of Rs. lO.OOO/-. In that case the counterpart to the sale-deed provided that the vendee should re-convey the property to the vendor after d period of 30 years from that date in case the vendor wished to have the pro­perty again and upon his paying a sum of Rs. lO.OOO/-. Their Lordships held that it was not a case of a mere standing offer by the vendee which could ripen into a contract to buy and sell only on the acceptance of that offer by the ven­dor by tendering of the purchase money. On the other hand, it was a completed contract between the parties. In this case the defendants were the sons of one Venkatapathi Naidu. By a deed dated 27th January, 1891, Venkata Subrahmanya Ayyar, on behalf of him­self and as guardian of his minor son Krishnaswami Ayyar sold the village of Siyatti to the abovementioned Venkata­pathi for the consideration of Rs. 10,000/-. On the same day the parties executed what was called a counterpart document by which it was provided that Venkata­pathi should reconvey the village to Venkata Subrahmanya after a period of thirty years from that date in case Ven­kata Subrahmanya wished to have the village again and upon his paying to Venkatapathi the sum of Rs. 10.000/-. The Privy Council came to the conclu­sion that there was a completed contract made by that counterpart. In this con­nection the Privy Council observed as follows: "All the elements necessary to consti­tute a contract were present. There was an undertaking on the part of Venkata­pathi to reconvey the village to Venkata-subrahmanya and Krishnasami in the event of their calling for conveyance at the time and upon the terms set out in the 'counterpart document'. The time at which the option was to be exercised and the price which was to be paid for the property were specified." 8. It may be noted that in the stipulation in the lease Ex. 4 in the case be­fore me, the time at which the option is to be exercised is not a fixed period. Nor the price which is to be paid for the property is specified. It is said that rea­sonable price should be paid. But there is no provision as to how the reasonable price will be determined if there is a dispute. Nor the price which is to be paid for the property is specified. It is said that rea­sonable price should be paid. But there is no provision as to how the reasonable price will be determined if there is a dispute. In the case of AIR 1933 Mad 322 (FB), the stipulation was as follows: "If it happens that you or your heirs have to sell the property to others, then you must sell it to the plaintiff or his heirs for the above price and also for such price as may be determined by arbi­trators in respect of any building that may be constructed upon the land." 9. The Full Bench decided that this was a completed contract and made the following observation: "In the absence of any words to signify that the purchase was only optional with the plaintiff or his heirs, it would not be unreasonable to hold that under this con­tract the vendee was bound to make the offer for resale and the vendor was equal­ly bound to buy it, and we are prepared to hold accordingly." 10. In the stipulation which Is under my consideration, it is said that / the lessee will buy the land if he agrees to do so. Obviously he is not bound by this stipulation to buy the land even if it is offered to him. So, in brief, in the sti­pulation in the case before me (1) no time limit is fixed; (2) no price is speci­fied; and (3) it is clearly said that the lessee will buy it if he agrees to do so. 11. In these circumstances, this stipu­lation cannot be a completed contract. There being no completed contract the question of specific performance or vio­lation of a contract cannot arise. I there­fore, find that the conclusion arrived at by the first Appellate Court is correct There is no force in this appeal which is dismissed. There will, however, be no order as to costs. Appeal dismissed.