RAM KISHAN DASS v. BHAVI CHAND SHARMA — 1987 DIGILAW 82 (DEL)

S. S. CHADHA, J. ( 1 ) THIS appeal by defendants in the suit is directed against the judgment and decree of the Court of Shri M. K. Bansal, Sub-Judge, 1st Class Delhi passing a decree for specific performance of the agreement to sell dt. Aug. 20, 1964 in favour of the plaintiff and against defendants 1 to 4 with respect to the shares of defendants 1 to 4 which is 4/5th on payment of Rs. 17,500. 00 (Rs. 500. 00 already paid as earnest money ). ( 2 ) BY an agreement dt. Aug. 20, 1964 executed by S/shri Ram Kishan Dass, son of Lala Panna Lal, Gopal Singh, Ram Kumar and Rajesh Kumar, sons of Shri Ram Kishan Dass and Ram Kishan Dass being the guardian of the minor son Mahender Kumar, the defendants contracted to sell to the plaintiff nine single storeyed shops together with two staircases and the land thereunder situate at Mandi Tel, Gudarwalan, Pahar Ganj, Delhi alleged to be owned and possessed by defendants being the ancestral property. The sale consideration was fixed at Rs. 18,000. 00 and a sum of Rs. 500. 00 was received by the defendants in cash as earnest money at the time of the execution of the agreement dt. Aug. 20, 1964. It was further agreed "the period for registration has been settled as one month. The vendee shall be entitled to get the sale deed executed within the stipulated period either in his own name or in the name of the persons he may like and in as many parts that he may like and get the proprietary possession after making payment of the balance amount before the Sub- Registrar". It was also a term that if the plaintiff was to fail to perform his part of the contract, then the earnest money would stand forfeited and if the defendants were to fail to perform their part of the contract, then the plaintiff would be entitled to file a suit for specific performance of the contract and get the sale deed registered through Court. According to the allegations made in the plaint, the defendants failed to specifically perform the agreement despite being called upon to do so, that the plaintiff was always ready and willing to specifically perform the agreement on his part of which the defendants had been given due notice, that by reason of the default of the defendants the plaintiff had suffered damages because of the difference between the contract and market price on the date of the breach of the contract and that it was a fit case for grant of a decree for specific performance of the contract. The defendants raised several preliminary objections and additional pleas in the written statement and they are subject-matters of the issues. One of the pleas which is pressed in appeal is that the time was the essence of the contract and since the plaintiff failed to perform his part of the contract within the specified time, the suit was legally not maintainable. It is denied that the plaintiff was always ready and willing to perform his part of the contract but the defendants failed to perform their part. It is pleaded that the plaintiff was not possessed of sufficient means to purchase the property within the period specified. The legality and validity of the agreement is also questioned. ( 3 ) ON the pleadings of the parties, the following issues were framed by the trial Court: "1. Whether a valid agreement to sell was executed by the defendants in favour of the plaintiff? 2. Whether the agreement to sell is illegal as alleged? 3. Whether the plaintiffs suit is barred under Section 8 of the Hindu Minority and Guardianship Act? 4. Whether plaint does not comply with the provisions of O. 7, R. 1 and O. 32, Rr. 2 and 3, Civil Procedure Code If so, with what effect? 5. Whether the time is the essence of contract? If so, with what effect? 6. Whether plaintiff has been and still is ready and willing to perform his part of the contract? 7. Whether defendant has committed breaches of the terms of the agreement to sell? 8. Whether plaintiff is entitled to the specific performance of the agreement to sell? If so, on what terms? 9. If issue No. 8 is proved, to what amount of damages is the plaintiff entitled? 10. Relief. 7. Whether defendant has committed breaches of the terms of the agreement to sell? 8. Whether plaintiff is entitled to the specific performance of the agreement to sell? If so, on what terms? 9. If issue No. 8 is proved, to what amount of damages is the plaintiff entitled? 10. Relief. "additional Issue "what is the effect of striking the name of defendant 5 in the suit?"the agreement dt. Aug. 20, 1964 was not duly stamped. It was impounded and the stamp duty as well as the penalty was paid during the pendency of the suit and as such, the agreement to sell is perfectly valid. Issue No. 1 was decided in favour of the plaintiff. Issue No. 2 was not pressed. By a statement made on June 5, 1967 before the trial Court, the plaintiff gave up defendant 5 and his name was struck off from the plaint. Necessary corrections were made on the plaint. An additional issue was framed as to the effect of the striking off the name of the defendant 5 in suit. In view of the statement of the plaintiff, issues 3 and 4 were decided against the defendants. On issue No. 5, it was held that time was not the essence of the contract in suit. Issues 6 and 7 were decided in favour of the plaintiff and against the defendants. Issue No. 8 was decided in favour of the plaintiff and a decree for specific performance of the contract was granted to the extent of 4/5th share for a sum of Rs. 18,000. 00. ( 4 ) MR. V. B. Andley, the learned counsel for the appellants seriously challenged the finding of the trial Court on issue No. 5. Reference was invited to the original agreement dt. Aug. 20, 1964, Ex. P-17. In the draft of the agreement, the period for completion was settled for three months and that was reduced to one month. The submission is that the parties had restricted the period for the performance of the contract to sell by changing it from three months to one month and that gave out the intention of the parties that the time is the essence of the contract. We are unable to accept this contention. The submission is that the parties had restricted the period for the performance of the contract to sell by changing it from three months to one month and that gave out the intention of the parties that the time is the essence of the contract. We are unable to accept this contention. In cases of a contract for the sale of immovable property, time is not of the essence of the contract unless expressly stipulated at the time of the contract or there are circumstances disclosed sufficiently to displace ordinary presumption that in a contract for sale of immovable property, time is not of the essence of the contract. The term contained in the contract merely fixes the period for registration as one month. Shri Ram Kishan Dass, defendant appeared in the witness box. He does not disclose any circumstance at all in his examination-in-chief but merely states that as the period fixed had expired he was not prepared to get the sale deed registered. In cross-examination he was given an opportunity to disclose any special circumstances. He reiterated that after September 20, 1964 he was not prepared to get the deed registered as stipulated time had expired and "that was the reason". The defendants did not lead any evidence of any immediate need of funds or money by the defendants during the period of one month or even thereafter. Immediately on the expiry of the period of one month, the plaintiff sent a telegram dt. Sept. 20,1964, Ex. P-28 making a reference to the agreement to sell, expressing readiness and willingness to perform his part of the contract, handing over of the draft sale, deed to Ram Kishan Dass but not returned and called upon them to have the sale deed registered. This telegram is followed by the notice dt. Sept. 20, 1964, Ex. P-30. Neither the telegram nor the notice is acknowledged or replied and there is no reason at all that the contract came to an end because time was essence of the contract. The second notice was sent by the plaintiff on Nov. 10, 1964, Ex. P-38. Reply to this notice is sent on Nov. 29, 1964, Ex. P-39. Even in this reply, the defendants did not disclose any circumstance sufficient to displace ordinary presumption except making a bare averment that time was the essence of the contract. The second notice was sent by the plaintiff on Nov. 10, 1964, Ex. P-38. Reply to this notice is sent on Nov. 29, 1964, Ex. P-39. Even in this reply, the defendants did not disclose any circumstance sufficient to displace ordinary presumption except making a bare averment that time was the essence of the contract. The law is well settled that merely because of the specification of the time on or before which a contract is to be performed, would not make the time the essence of the contract. Time is of the essence of the contract if the parties intend it to be so. In "gomathinayagam Pillai v. Palaniswami Nadar", AIR 1967 SC 868 , it was held : ". . . . . . IT is not merely because of specification of time at or before which the thing to be done under the contract is promised to be done and default in compliance therewith, that the other party may avoid the contract. Such an option arises only if it is intended by the parties that time is of the essence of the contract. Intention to make time of the essence, if expressed in writing, must be in language which is unmistakable; it may also be inferred from the nature of the property agreed to be sold, conduct of the parties and the surrounding circumstances at or before the contract. Specific performance of a contract will ordinarily be granted, notwithstanding default in carrying out the contract within the specified period, if having regard to the express stipulations of the parties, nature of the property and the surrounding circumstances, it is not inequitable to grant the relief. If the contract relates to sale of immovable property, it would normally be presumed that time was not of the essence of the contract. Mere incorporation in the written agreement of a clause imposing penalty in case of default does not by itself evidence an intention to make time of the essence. . . . . " ( 5 ) THE next submission of the learned counsel is that the plaintiff was not possessed of sufficient means to purchase the property within the specified period and thus not ready and willing to perform his part of the contract. We were taken through the evidence on the record. . . . . " ( 5 ) THE next submission of the learned counsel is that the plaintiff was not possessed of sufficient means to purchase the property within the specified period and thus not ready and willing to perform his part of the contract. We were taken through the evidence on the record. There is documentary evidence on the record which exhibits the readiness and willingness of the plaintiff to perform his part of the contract. Under the agreement, the plaintiff was entitled to get the sale deed executed within the period either in his own name or in the name of the persons he may like and in as many parts he may like to get the proprietary possession after making payment of the balance amount before the Sub-Registrar. Public witness 11 Shri Bhawi Chand, plaintiff deposes that he entered into agreement with various purchasers to sell various portions with them, that he got prepared the plans, Exs. P-1 to P-16 to get the sale deed executed, that a draft sale deed was also got prepared as a specimen, that the specimen draft was given over to Ram Kishan Dass, defendant on Sept. 12/13, 1964 for approval and that thereafter stamp papers, Exs. P-18 to P-27 were purchased by him so as to get the sale deed written on them. These stamp papers were purchased in the name of the would be vendees who have also appeared as witnesses on behalf of the plaintiff. The plans, Exs. P-1 to P-16 were prepared on Sept. 11, 1964. The stamp papers, Exs. P-18 to P-27 of the value of Rs. 140. 00 (Rs. 100 plus Rs. 40. 00) were purchased on Sept. 16, 1964 for five sale deeds. The oral agreement to sell is corroborated by the intending purchasers. Apart from it, an objection was taken by the defendant in the written statement that the plaintiff was not possessed of sufficient means to purchase the property within the period specified. In the replication, the plaintiff made an averment that he had sufficient means to purchase the property within the period specified and even thereafter. Public witness 6, Raja Ram deposes that they purchased the land for the factory for Rs. 50,000. 00 and machinery for Rs. 45,000. 00 in partnership with the plaintiff, that the value of that property is Rs. Public witness 6, Raja Ram deposes that they purchased the land for the factory for Rs. 50,000. 00 and machinery for Rs. 45,000. 00 in partnership with the plaintiff, that the value of that property is Rs. 3 lacs including the construction made by them and that the plaintiff has 1/4th share in that. In cross-examination, he discloses that the factory has cash balance of 40 or 50 thousand rupees both in the Banks as well as in the factory. The rental income of the factory is given as Rs. 1,200. 00 or Rs. 1,300. 00 per month. Thus there is sufficient evidence on the record to hold that the plaintiff was possessed of the means to pay the sale consideration either himself or through the intending purchasers. We do not find any infirmity in the finding of the trial Court in that regard. ( 6 ) THE preparation of the plans of shops on Sept. 11, 1964, the sending of the draft sale deeds on Sept. 12/13, 1964 and the purchase of stamp papers on Sept. 16, 1964 shows continuous readiness and willingness throughout the period of one month. The sending of the telegram on Sept. 20, 1964 and the notice on Sept. 20, 1964 expresses the willingness of the plaintiff to perform his part of the contract. We, therefore, hold that the plaintiff was ready and willing to perform his part of the contract at all material time. ( 7 ) THAT takes us to the last submission of the counsel for the appellants on issue No. 8 and the additional issue as to the effect of striking out the name of the defendant No. 5 on the suit. The agreement dt. Aug. 20, 1964 was entered into between the plaintiff and defendants 1 to 4 as well as by Lala Ram Kishan Dass as guardian of his minor son Mohinder Kumar. It later transpired that Mohinder Kumar was not minor on Aug. 20, 1964. The counsel for the plaintiff made a statement on June 5, 1967 and gave up defendant 5. It is the common case of the parties that the nine single storeyed shops together with two staircases and the land underneath situate at Mandi Tel, Gudarwalan, Pahar Ganj, Delhi is the ancestral property of the defendants including the deleted defendant 5. The counsel for the plaintiff made a statement on June 5, 1967 and gave up defendant 5. It is the common case of the parties that the nine single storeyed shops together with two staircases and the land underneath situate at Mandi Tel, Gudarwalan, Pahar Ganj, Delhi is the ancestral property of the defendants including the deleted defendant 5. There are no allegations in the plaint of the suit that the sale of the said property was for any legal necessity or for the benefit of the family or any other similar purpose. All the members of the coparcenary property are thus not parties to this agreement dt. Aug. 20, 1964. In other words, Shri Mohinder Kumar who is admittedly a coparcener is not a party to the agreement and is also not a party to the suit. ( 8 ) THE counsel for the appellants contends that according to the law of Mitakshara, a coparcener in an undivided family cannot sell, mortgage or otherwise alienate his undivided interest in the coparcenary property except with the consent of other coparceners. The consent of Shri Mohinder Kumar admittedly is not there. He urges that the property belongs to all the members of the family jointly and no one of the individual members has any share in it unless it is determined and which share he can deal as his own separate individual property. Reliance is placed on Bageshwari Prasad Duivedi v. Deopati Kuer, AIR 1961 Pat 416 , Hati Pratihari v. Alekh Mohapatra, AIR 1954 Orissa 136, and Ralla Ram v. Atma Ram, AIR 1933 Lah 343. Reference is also made to Mulla s Hindu Law 15th Edition, para 260 which says that according to the Mitakshara Law as administered in West Bengal and Uttar Pradesh no coparcener can alienate even for value his undivided interest without the consent of the other coparceners unless the alienation is for legal necessity or for payment of antecedent debts. It was also stated therein that the same rule applies to cases governed by the Mitakshara law as administered in Bihar and Orissa and in Punjab and Oudh. It was also stated therein that the same rule applies to cases governed by the Mitakshara law as administered in Bihar and Orissa and in Punjab and Oudh. ( 9 ) IN the Patna case cited by the counsel, it is noticed that the question as to whether there could be a decree for specific performance when the contract has been entered into in respect of a coparcenary property, not by all the coparceners, but by one member, is not free from difficulty, and there is a divergence of opinion. The contra view of the Bombay, Madras and Nagpur High Courts is noticed. ( 10 ) SO far as the Mitakshara Law as administered in West Bengal, Orissa and U. P. is concerned, the consensus of judicial opinion is that the Hindu cannot, without the consent of his coparcener, sell or mortgage his undivided share in the ancestral estate for his own benefit. Ralla Ram (AIR 1933 Lah 343) (supra), the case of Lahore High Court relied upon by the counsel is based on a Privy Council decision reported as Lachhman Prasad v. Sarnam Singh, AIR 1917 PC 41. The conclusion merely states that in Punjab it is not open to a coparcener to alienate his undivided share in joint Hindu property under Hindu Law without the consent of the other coparcener. According to law of Mitakshara administered in the States of Madras (See Aiyyagari v. Aiyyagari, (1902) ILR 25 Mad 690 (FB), Chhinnu Pillaiv. Kalimuthu, (1912) ILR 35 Mad 47 (FB)); Bombay (See Pandurang Narayan v. Bhagwandas, (1920) ILR 44 Bom 341 : (AIR 1920 Bom 341), Gundayya v. Shrinivas; AIR 1937 Bom 51), Madhya Pradesh (See Kashinath v. Bapurao, ILR (1940) Nag 573 : (AIR 1940 Nag 305) (FB)) and Jammu and Kashmir (See Gianchand v. Krishna Singh, AIR 1978 Jandk 16), a coparcener in an undivided family may sell, mortgage or otherwise alienate for value, his undivided interest in coparcenary property without the consent of the other coparceners. Bhide, J. was also a member of the Bench in Sukh Dev v. Parsi, AIR 1940 Lah 473. That case was, however, concerned with the case of a co-sharer in an exclusive possession of undivided family. Bhide, J. was also a member of the Bench in Sukh Dev v. Parsi, AIR 1940 Lah 473. That case was, however, concerned with the case of a co-sharer in an exclusive possession of undivided family. It was, however, observed that if the defendants merely transferred the plots subject to the rights of the other co-sharers and subject to adjustment at the time of partition, it is difficult to see how the rights of the other co-sharers can be prejudiced in any way. It was held that a co-sharer who is in exclusive jointpossession of any portion of a joint khata, could transfer that portion subject to adjustment of the rights of other co-sharers at the time of partition. The Supreme Court also considered the case in the State of Punjab of a transfer of the property of the joint family. In that case, the suit was for specific performance of a contract for the sale of 3/20th share of land in certain field situate in Mauza Faizpur of Batala in the State of Punjab. The suit for specific performance of the contract was dismissed as the suit was resisted by the adult members who were not party to the transaction and there was a finding that it is not established that the transaction was for the benefit of the family. It was, however, observed that the contracting party was bound by the contract which he had entered into and the plaintiff would have been entitled to the benefit of S. 15 of the Specific Relief Act. It was ruled : "no doubt Pindidas himself was bound by the contract which he has entered into and the plaintiff would have been entitled to the benefit of S. 15 of the Specific Relief Act which runs thus : "where a party to a contract is unable to perform the whole of his part of it, and the part which must be left unperformed forms a considerable portion of the whole, or does not admit of compensation in money, he is not entitled to obtain a decree for specific performance. But the court may, at the suit of the other party, direct the party in default to perform specifically so much of his part of the contract as he can perform, provided that the plaintiff relinquishes all claim to further performance, and all right to compensation either for the deficiency, or for the loss or damages sustained by him through the default of the defendant. " However, in the case before us there is no claim on behalf of the plaintiff that he is willing to pay the entire consideration for obtaining a decree against the interest of Pindidas alone in the property. In the result the appeal fails and is dismissed with costs. "the Supreme Court did not say that in Punjab, a coparcener in an undivided family cannot sell, mortgage or otherwise alienate for value his undivided interest in the coparcenary property without the consent of the other coparceners. Section 15 of the Specific Relief Act, 1877 now S. 12 (3) of the Specific Relief Act, 1963 provides that the relinquishment of the claim to further performance can be made at any stage of the litigation and it was in fact made during the trial of the suit in the trial Court. The plaintiff had agreed to pay the consideration stipulated for the entire contract for 4/5th share in the property and this is permissible under S. 12 (3) of the Specific Relief Act, 1963. In fact, the decree for specific performance of the agreement in favour of the plaintiff and against defendants 1 to 4 is with respect to the share of defendants 1 to 4 which is 4/5th on payment of Rs. 17,500. 00 ( Rs. 500. 00 already paid as earnest money ). ( 11 ) FOR the above reasons, the appeal fails and is dismissed with costs.