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2001 DIGILAW 596 (PNJ)

Aruna Gupta v. Ranbir Singh Dhanjal

2001-05-25

R.L.ANAND

body2001
JUDGMENT R.L. Anand, J. - Smt. Aruna Gupta (defendant No. 1 in the trial Court) daughter of Maharaj Singh Walia has filed the present regular first appeal and it has been directed against the judgment and decree dated 18.12.1999 passed by Civil Judge (Senior Division), Ludhiana, who granted an alternative relief and passed a money decree for a sum of Rs. 15,29,417.15 with proportionate costs in favour of plaintiff Ranbir Singh Dhanjal with future interest @ 12% per annum on the decretal amount and further future interest @ 6% per annum from the date of decree till payment. However, the suit of plaintiff Ranbir Singh Dhanjal against defendants No. 2 and 3, namely Ashima Gupta and Subhash Gupta was dismissed. 2. The brief facts of the case can be described in the following manner :- Plaintiff filed a suit for possession by way of specific performance of 1/4th share in the property Unit No. B-I-974, out of the property measuring 2400 Sq. Yards situated at Rajpura Road, Ludhiana as shown red in the site plant attached with the plaint and in the alternative he made a prayer for grant of money decree to the tune of Rs. 22,05,000/-. The case set up by the plaintiff in the trial Court was that he was a resident of Canada. He visited India in the month of January, 1994 and met defendant No. 1, who was widow at that time, at New Delhi Air Port and they married with each other on 20.2.1994 by performance of Anand Karaj ceremony at Delhi. Their marriage was also got registered with the Registrar of Marriages, New Delhi on 23.2.1994. It was pleaded by the plaintiff that defendant No. 1 along with defendants No. 2 and 3 was co-owner of the suit property described in the head-note of the plaint and it was locked in litigation with the tenant. Since defendants were in need of money for getting the property vacated from the tenant, therefore Aruna Gupta showed her willingness to dispose of her 1/4th share in the property and entered into an oral agreement to sell the same to the plaintiff for a total sale consideration of Rs. 20 lacs in the presence of Arun Sehgal and Sonu. Besides, defendant No. 3 also obtained Rs. 4.55 lacs from the plaintiff for getting vacated her share in the property and out of the said amount Rs. 20 lacs in the presence of Arun Sehgal and Sonu. Besides, defendant No. 3 also obtained Rs. 4.55 lacs from the plaintiff for getting vacated her share in the property and out of the said amount Rs. 2.5 lacs were returned by her to the plaintiff within few days and a writing to that effect was executed. On the assurance of defendant No. 1 that she will execute and get registered sale deed in favour of the plaintiff after the same is vacated by the tenant, the plaintiff paid her total sale consideration of Rs. 20 lacs. Rs. 5 lacs and Rs. 15 lacs were paid through Hongkong Bank, New Delhi by withdrawing the same from N.R.I. account of the plaintiff. The plaintiff had not insisted for written agreement of sale on account of his full faith in his would be wife. In November 1994, the plaintiff came to India and pursued the litigation. On 4.4.1995, the suit between Aruna Gupta and other co-owners with the tenant was got dismissed and on account of this long drawn litigation defendant No. 3 approached him for paying further sum of Rs. 4.55 lacs and the plaintiff paid the same. However, defendant No. 3 paid Rs. 2.50 lacs through bank drafts and the balance was acknowledged by him through separate writing. However, to the utter shock, defendant No. 1 started humiliating the plaintiff and started backing out from her agreement and seeing her intention, the plaintiff sent notices to her through his counsel Mr. C.P. Sen, Advocate calling her to execute and register sale deed in his favour, but she refused to accept the service of the notice and the same were returned back with the report of refusal. It was further alleged by the plaintiff that defendant No. 1 failed to perform her part of the contract whereas he was always ready and willing to perform his part of the contract and (sic) No. 051-605202-054 and another sum of Rs. 3,77,422.63 against account No. 051-605202-055. This amount was given by the plaintiff to her in June, 1994 for maintaining herself and asking her to purchase a bigger car. Out of the said amount she purchased Maruti 1000 for a sum of Rs. 3,63,000/-, which was stolen and a complaint was lodged and the insurance company paid a claim of Rs. 3,60,000/- and she gave a cheque of Rs. 3,60,000/- to the plaintiff. Out of the said amount she purchased Maruti 1000 for a sum of Rs. 3,63,000/-, which was stolen and a complaint was lodged and the insurance company paid a claim of Rs. 3,60,000/- and she gave a cheque of Rs. 3,60,000/- to the plaintiff. Out of the remaining amount, defendant No. 1 invested Rs. 2 lacs in the shape of FDR with SRF Finances Limited, Rs. 4 lacs with Motor and General Finance Limited and Rs. 2 lacs with I.T.C. Classic Finance Limited. Against the deposit of Rs. 4 lacs (supra), she obtained a loan of Rs. 3 lacs. All the deposits were made so as to provide maintenance to her. She denied that she received any money from the plaintiff for getting her share in the suit property vacated. Elaborating her defence she pleaded that a sum of Rs. 50,000/- was given to Ashish Kumar vide draft No. 0/5579 dated 25.3.1995 and the matter was compromised in the Court and the suit was dismissed as withdrawn on 4.4.1995. As per the defendants the story propounded by the plaintiff that defendant No. 1 was in need of money to get the portion of suit property vacated and for that reason she agreed to sell her share in the property to plaintiff is false. Defendant No. 1 accused the plaintiff being a cruel person, who started beating her after the marriage and caused serious injuries to her due to which she was hospitalised. The plaintiff also caused injuries to Ashima, daughter of defendant No. 1 from her previous marriage, and she was also admitted to Shri Ganga Ram Hospital. She spent Rs. 7,256/- as expenses of Shri Ganga Ram Hospital besides a sum of Rs. 3,700/- and Rs. 375/- on her treatment and clinical investigation. Report was also lodged with the police. Defendant No. 1 further pleaded that plaintiff No. 1 removed her 21 Pashmina shawls of the total value of Rs. 5 lacs without informing her and this matter was also reported to the police on 15.11.1995. 3,700/- and Rs. 375/- on her treatment and clinical investigation. Report was also lodged with the police. Defendant No. 1 further pleaded that plaintiff No. 1 removed her 21 Pashmina shawls of the total value of Rs. 5 lacs without informing her and this matter was also reported to the police on 15.11.1995. On account of her relationship with the plaintiff, the defendant No. 1 took the stand that she could hardly agree to sell her property in favour of the plaintiff and the suit of the plaintiff for specific performance is also not legally maintainable because of the provisions of Foreign Citizen Regulation Act as the plaintiff has not taken the permission to enter into any agreement of sale with defendant No. 1. Moreover, defendant No. 3 had not taken any amount from the plaintiff. With this broad defence the defendants prayed for the dismissal of the suit. 3. The plaintiff filed re-joinder to the written statement in which he reiterated the averments of the plaint by denying those of the written statement. From the pleadings of the parties, the learned trial Court framed the following issues :- "1. Whether the defendant No. 1 entered into an oral agreement to sell her 1/4th share in favour of the plaintiff on 10.2.1994 as alleged ? OPP 2. Whether the plaintiff has paid full and final consideration to the defendant No. 1 as alleged ? OPP 3. Whether the plaintiff has been and is ready and willing to perform his part of the contract ? OPP 4. Whether the defendant No. 1 has committed breach of the contract ? OPP 5. Whether the plaintiff is entitled for possession by way of specific performance of 1/4th share in the suit property vide agreement dated 10.2.1994 ? OPP 6. Whether in the alternative the plaintiff is entitled to recover Rs. 22,05,000/- ? OPP 7. Whether suit is bad for mis-joinder of parties ? OPD 8. Whether the suit is barred by the provisions of Foreign Citizen Regulation Act ? OPD 9. Whether the suit for specific performance is not maintainable ? OPD 10. Whether the plaintiff has no cause of action to institute the present suit ? OPD 11. Relief." 4. Parties led oral as well as documentary evidence in support of their respective cases. Whether the suit is barred by the provisions of Foreign Citizen Regulation Act ? OPD 9. Whether the suit for specific performance is not maintainable ? OPD 10. Whether the plaintiff has no cause of action to institute the present suit ? OPD 11. Relief." 4. Parties led oral as well as documentary evidence in support of their respective cases. Issues No. 1 to 6, 8 and 9 were taken up together by the trial Court and on the conclusion of the proceedings issues No. 1 to 5, 8 and 9 were decided against the plaintiff and issue No. 6 was partly decided in favour of the plaintiff and he was granted a money decree for a sum of Rs. 15,29,417.15 with proportionate costs and interest as I have stated in the earlier portion of this judgment. Issues No. 7 and 10 were decided against the defendants. 5. Not satisfied with the judgment and decree of the trial Court dated 18.12.1999, the present appeal by defendant No. 1. 6. I have heard Mr. Viney Mittal, Sr. Advocate assisted by Mr. Arun jain, Advocate on behalf of the appellant, Mr. R.K. Chhibbar, Sr. Advocate on behalf of the respondent No. 1, Mr. H.K. Arora, Advocate on behalf of respondent No. 3 and with their assistance have gone through the records of the case and in my considered opinion the learned trial Court had fell in error in granting a money decree in favour of the plaintiff. 7. Let us see what was the case pleaded by the plaintiff. The pleaded case of the plaintiff was that Smt. Aruna Gupta entered into an agreement of sale and she agreed to sell 1/4th share of the property as described in the head-note of the plaint for a consideration of Rs. 20 lacs in the presence of Arun Sehgal and Sonu. It is also the case of the plaintiff that a sum of Rs. 15 lac was paid to defendant No. 1 through Hongkong Bank Branch, New Delhi through his N.R.I. account and a sum of Rs. 4.5 lacs was given to defendant No. 3 for getting the property vacated out of which he returned a sum of Rs. 2.5 lacs to the plaintiff. A reading of para No. 2 of the plaint would show that the plaintiff did not plead the date, time or place of the agreement. 4.5 lacs was given to defendant No. 3 for getting the property vacated out of which he returned a sum of Rs. 2.5 lacs to the plaintiff. A reading of para No. 2 of the plaint would show that the plaintiff did not plead the date, time or place of the agreement. He introduced two witnesses, namely, Arun Sehgal and Sonu. Before filing the present suit the plaintiff got served one legal notice Ex.PX through Mr. C.P. Sen, Advocate of Nagpur and para No. 4 of the said notice reads as follows :- "A few days after the marriage, you offered to sell your 25% share in the said property to my client for a consideration of Rs. 20 lacs, as you were in pressing need of money. My client accepted the offer and there was an oral agreement of sale of your 1/4th share in the said property for a consideration of Rs. 20 lacs. You being my clients wife, he had utmost faith in you and so he did not insist on a written agreement of sale." It is a common case of the parties that the marriage between the parties took place on 20.2.1994. Meaning thereby that if we go by this notice dated 11.8.1995, the agreement of sale allegedly took place after 20.2.1994. Since there was nothing in the plaint with regard to the date of alleged agreement, the defendant made an application dated 10.11.1995 in the trial court requesting the Court that plaintiff may be called upon to give better particulars of his plaint as he has not mentioned the date, month and year of the alleged agreement or that whether the agreement was in writing. In reply to this application the plaintiff for the first time stated in para No. 2 of the reply that the agreement of sale was entered into on 10.2.1994. He stated that this date was within the knowledge of the defendants. Meaning thereby that there is a deviation of the stand taken up by the plaintiff from his legal notice Ex.PX and that of the written reply. Be that as it may, now it has to be taken whether there was any agreement of sale between the plaintiff and defendant No. 1 on 10.2.1994. Meaning thereby that there is a deviation of the stand taken up by the plaintiff from his legal notice Ex.PX and that of the written reply. Be that as it may, now it has to be taken whether there was any agreement of sale between the plaintiff and defendant No. 1 on 10.2.1994. This aspect of the case has already been disbelieved by the trial Court which has rightly come to the conclusion that there was no agreement of sale dated 10.2.1994. The trial Court has also held that there was no contract at all between the parties on 10.2.1994, as propounded up by the plaintiff during the trial. The question of its breach does not arise. In para 18 of the judgment of the trial Court it is stated as follows :- "18. Thus from all these circumstances I am led to the irresistible conclusion that no agreement of sale was ever entered into between the plaintiff and defendant No. 1." Meaning thereby that under the agreement of sale or in pursuance thereof nothing has passed to defendant No. 1 as alleged by the plaintiff. The case set up by the plaintiff, it may be reiterated, is that there was an agreement of sale on 10.2.1994 for a sum of Rs. 20 lacs and in pursuance of that agreement he parted Rs. 15 lacs to defendant No. 1 and Rs. 5 lacs to defendant No. 3 and thus having paid the entire consideration he is entitled to the decree. 8. Now it is to be seen whether the alternative relief, which was given by the trial Court, could be granted to the plaintiff or not. In paras No. 19 to 24 of the judgment the trial Court held as under :- "19. But is remains a fact that within a short span from his marriage with defendant No. 1, the plaintiff has given as many as Rs. 18,92,417.15 to her. Faced with the situation where the story of agreement of sale is not finding favour with this Court, counsel for plaintiff argues that defendant No. 1 still has to return this amount as he has also asked for alternative relief of recovery. Ld. 18,92,417.15 to her. Faced with the situation where the story of agreement of sale is not finding favour with this Court, counsel for plaintiff argues that defendant No. 1 still has to return this amount as he has also asked for alternative relief of recovery. Ld. counsel for defendant No. 1 attempts to squirm out of the situation by arguing that the amounts received by defendant No. 1 were neither earnest money nor towards sale consideration of any agreement of sale nor were advanced as a loan which she may enjoined to return. These were gifts from a husband to his wife and would be covered by the provisions of Hindu Marriage Act, 1956. These amounts were given by the plaintiff, argues Sh. S.R. Wadhera, for maintenance of defendant No. 1 and to ask her to live in a house worth his status which she got on rent and furnished it from the amounts so received. This is an altogether a fanciful argument advanced with the sole intention to keep on holding amounts returnable to the plaintiff. It was only for 5 weeks that plaintiff and defendant No. 1 remained as husband and wife during first sojourn of the plaintiff to India. He returned to India in October 1994 and within no time relations between him and Aruna Gupta went sour. By no stretch of imagination, a husband can be held liable to maintain his wife, that even in his absence, to the tune of nearly Rs. 18/19 lakhs during such a short tenure of marriage of theirs. As per defendant No. 1 herself, she had pashmina shawls with her value whereof was Rs. 5 lakhs. A lady having that much of shawls alone of her own, who is owner of landed property worth Rs. 20 lakhs is self sufficient by all means and hardly needs to be maintained. In any case, she had asked for, and got a decree of divorce from a Court of competent jurisdiction at Delhi and if she felt like she could have got an order of maintenance or the like from that Court, she did not do that and the plea of maintenance has been forwarded by her in these proceedings only with the solitary object of not returning the amounts of plaintiff to him. Rather, she has revealed of having deposited parts of those amounts with many investors to earn interest therefrom. Rather, she has revealed of having deposited parts of those amounts with many investors to earn interest therefrom. Hardly an act of a person in need of maintenance. 20. It is rightly argued by Ld. Counsel for the plaintiff that acts of handing over monies under reference to defendants No. 1 were the acts of a sincere husband who wanted to have sempiternal married life and made his wife custodian of his hard earned money by entrusting these amounts to her. If the married life could not pull on, as desired, it does not license the wife to not to return those amounts to the plaintiff. Thus, it is held that plaintiff is entitled to recover the amounts handed over by him to the 1st defendant. As this stage, necessary it is to make clear that from the total amounts of Rs. 18,92,417.15 the plaintiff has to set off Rs. 3.63 lakhs from which Maruti 1000 car was purchased and he has, admittedly, received insurance claim following theft of that car. The claim of plaintiff against the defendant No. 1 is left at Rs. 15,29,417.15. 21. Provisions of Foreign Citizen Regulation Act would no longer be applicable to the case in hand since agreement of sale could not be proved of having come into existence at all. Likewise defendants are not in a position to gain any thing from alleged treatment of Ashima Gupta since no set off or counter claim has been made on this count. 22. Both sides have placed certain documents on the file as Marks. Since these documents are not duly proved they can not be taken as evidence of the case and are not being taken note of. 23. A sum of Rs. 2.5 Lakhs is sought to be recovered from defendant No. 3 on the averments that he had borrowed a sum of Rs. 4.5 lakhs from him out of which Rs. 2 lakhs were returned and remaining of Rs. 2.5 lakhs are yet to be repaid by him. In the plaint it is claimed that defendant No. 3 had acknowledged that much of amount outstanding against him in writing. Here again, that writing has not been led into evidence for the reasons best known to the plaintiff. In this examination-in-chief, an improvement was sought to be made by saying that Rs. 4.5 lakhs were paid to Ashish Kumar through Aruna Gupta. Here again, that writing has not been led into evidence for the reasons best known to the plaintiff. In this examination-in-chief, an improvement was sought to be made by saying that Rs. 4.5 lakhs were paid to Ashish Kumar through Aruna Gupta. Said Ashish Kumar is not defendant No. 3 but was the tenant. Subhash Gupta cannot be saddled with the liability of Rs. 4.5 lakhs on the basis of such a claim. Even if one was to believe ld. counsel for plaintiff that he has uttered the word Ashish Kumar due to slip of tongue instead of saying Subhash Gupta yet he has not uttered even a single word in his examination-in-chief that defendant No. 3 had ever demanded any such amount from him. Rather it is stated that Rs. 4.5 lakhs were paid through Aruna Gupta. Evidence with regard to this aspect of the case of plaintiff is unworthy of credence and cannot be relied upon. 24. For the reasons recorded above, issues No. 1, 2, 3, 4, 5, 8 and 9 are decided against the plaintiff while issue No. 6 is partly decided in favour of the plaintiff and against the defendant No. 1." 9. The learned counsel appearing on behalf of the appellant submitted that the trial Court has made out a case for the plaintiff perhaps by bringing that case under the provisions of Sections 21 and 22 of the Specific Relief Act and the said provisions are not applicable to the facts in hand. On the contrary, it was argued on behalf of the learned counsel for the respondent No. 1 that the trial Court has granted the money decree by virtue of the provisions of Section 29 of the Specific Relief Act coupled with the provisions of Section 65 of the Indian Contract Act and also for the reasons that the case of the plaintiff is covered by the provisions of Section 70 of the Indian Contract Act. I am in agreement with the contention raised by the learned counsel for the appellant. As per sub-section (1) of Section 21 of the Specific Relief Act, in a suit for specific performance of a contract, the plaintiff may also claim compensation for its breach, either in addition to, or in substitution of, such performance. I am in agreement with the contention raised by the learned counsel for the appellant. As per sub-section (1) of Section 21 of the Specific Relief Act, in a suit for specific performance of a contract, the plaintiff may also claim compensation for its breach, either in addition to, or in substitution of, such performance. According to sub-section (2), if, in any suit, the court decides that specific performance ought not to be granted, but that there is a contract between the parties which has been broken by the defendant and that the plaintiff is entitled to compensation for that breach, it shall award him such compensation accordingly. For our purpose sub-section (2) of Section 21 is relevant. In order to attract the provisions of this sub-section it is obligatory on the part of the plaintiff to establish at the first instance that there was an enforceable and valid contract between the parties which has been broken by the defendant. In the present case, admittedly, the findings of the trial court, which should not have been challenged by the plaintiff/respondent before the High Court, are that there is no agreement at all which was entered into between the plaintiff and defendant No. 1. In such a situation the provisions of Section 21(2) cannot come to the rescue of the plaintiff. 10. Now it is to be seen whether the plaintiff could be granted the benefit of Section 22 of the Specific Relief Act. For our purpose clause (b) of sub- section (1) of Section 22 is relevant which lays down that any person suing for the specific performance of a contract for the transfer of immovable property may, in an appropriate case, ask for any other relief to which he may be entitled including the refund of any earnest money or deposit paid or made by him, in case his claim for specific performance is refused. Again the reading of this clause (b) of sub-section (1) of Section 22 makes it incumbent upon the plaintiff to make out a case that he advanced earnest money to the defendant under an agreement of sale or he deposited the amount with the defendant under that agreement. The existence of a valid or enforceable agreement is a condition precedent in order to attract the provisions of Sections 21 and 22 of the Specific Relief Act. This is not the case in hand. The existence of a valid or enforceable agreement is a condition precedent in order to attract the provisions of Sections 21 and 22 of the Specific Relief Act. This is not the case in hand. I have already stated above that there was no agreement ever executed between the plaintiff and defendant No. 1 on 10.2.1994 in the presence of Arun Sehgal and Sonu. The findings of the trial Court on issues No. 1 to 5, 8 and 9 had already gone against the plaintiff and there are no cross-objections to these findings. In this regard I am fortified by V. Kameswararao and others v. M. Hemalathammarao and others, AIR 1959 Andhra Pradesh 596, which lays down that Section 19 posits the existence of a valid contract which the Court decides in its discretion not to enforce specifically while finding that it was broken by the defendant. But in a case where the claim of the plaintiff is being rejected not on the ground that it is not a fit case for specific performance but on the ground that they are not entitled to put in suit an agreement which they have materially altered, they cannot claim damages on the basis that the defendant was guilty of breach of the contract as it had originally stood. In Gopi Nath Sen and others v. Bahadurmul Dulichand and others, AIR 1979 Calcutta 203 it was held that once a suit for specific performance fails by reason of the fact that claim for specific performance was not pressed or abandoned at the trial, the question of damages for specific performance in substitution also fails. 11. Faced with this difficulty, the learned counsel appearing on behalf of the plaintiff/respondent vehemently submitted that the case of defendant No. 1 in the trial Court was that the plaintiff gave her the money to meet her requirements of maintenance etc. The money was paid to her in June, 1994. The plaintiff asked her to purchase a bigger car. She definitely received a sum of Rs. 15,08,714.15 in her two account numbers and out of this amount she spent a sum of Rs. 3,63,000/- in order to purchase Maruti 1000. This car ultimately was stolen. She received a sum of Rs. 3,60,000/- by way of insurance claim and this amount she gave to the plaintiff. She further invested Rs. She definitely received a sum of Rs. 15,08,714.15 in her two account numbers and out of this amount she spent a sum of Rs. 3,63,000/- in order to purchase Maruti 1000. This car ultimately was stolen. She received a sum of Rs. 3,60,000/- by way of insurance claim and this amount she gave to the plaintiff. She further invested Rs. 6 lacs with different insurance companies in order to provide maintenance to her. She only paid Rs. 50,000/- to Ashish Kumar by way of bank draft dated 25.3.1995, as a result of that the matter was compromised. The learned counsel for respondent No. 1 submitted that the stand of the defendant/appellant is a lie in view of her admission when she stated in her cross-examination on 15.10.1998 as follows :- "...I did not require Rs. 20,00,000/- as maintenance during three months...." The learned counsel wanted to highlight this admission on the part of the defendant/appellant by stating that in fact the money was given to her by way of earnest money in the second week of February, 1994 as she required the money to get the property vacated. She entered into an agreement of sale with the plaintiff. Mr. Chhibbar submitted in the alternative that even if it is assumed for the sake of argument that the plaintiff has not been able to prove the agreement of sale dated 10.2.1994, still the suit can be decreed by virtue of the provisions of Section 29 of the Specific Relief Act and other provisions which I will now deal. Firstly, I may stated that the plaintiff/respondent cannot take the advantage of this stray line in the cross-examination of defendant/appellant because it is a basic principle of law that pleading and the statement of an individual has to be read as a whole. Let us first see how the money has gone to defendant No. 1 ? In this regard there is documentary evident and first document on the record is photo copy of the bankers cheque Ex.DW6/1, which indicates that 12,294.19 dollars were ordered to be paid to Ranbir Dhanjal plaintiff. This amount was credited in his account on 11.2.1994 as is evident from document Ex.DW6/2. Then a sum of Rs. 75,000/- was transferred on the basis of pay order in the name of defendant/appellant Aruna Gupta on 16.3.1994. Vide Ex.DW6/4 a sum of Rs. This amount was credited in his account on 11.2.1994 as is evident from document Ex.DW6/2. Then a sum of Rs. 75,000/- was transferred on the basis of pay order in the name of defendant/appellant Aruna Gupta on 16.3.1994. Vide Ex.DW6/4 a sum of Rs. 2,08,701.66 was again transferred in her name on 16.3.1994. Yet another amount of Rs. 10,00,000/- was transferred on 16.3.1994. A sum of Rs. 3,77,422.63 was transferred on 24.6.1994 and a sum of Rs. 1,31,291.52 again on 24.6.1994. By the first transfer entry the marriage between the parties had already been performed, which was performed on 20.2.1994 at Delhi. The amount could be refunded to the plaintiff only if he had established that either he had advanced the loan i.e. open debt, or he had given that amount by way of trust. This is not the case of the plaintiff at all either pleaded in the trial Court or before this Court. The plaintiff wanted to rely upon the failure of consideration. On the contrary, it looks to be and which is more probable that after the marriage the plaintiff brought the foreign exchange to the tune of 12,294.19 dollars and this amount was converted into Indian currency on 24.2.1994 and it was transferred in the account of defendant No. 1 from 16.3.1994 to 24.6.1994. This money, in fact, was given by the plaintiff by way of maintenance and gift to defendant No. 1, who was his wife at that time, on account of love and affection, as it is ordinarily done in family affairs. In the present case the background of the parties suggests that defendant No. 1 must have asked for the financial security in case of her marriage with the plaintiff who was aged 54 years at the time of his marriage with Aruna Gupta, who too had two children from her first wedlock. In these circumstances, now we have to examine the provisions of Section 24 of the Specific Relief Act, 1963 at the first instance, which lays down that the dismissal of a suit for specific performance of a contract or part thereof shall bar the plaintiffs right to sue for compensation for the breach of such contract or part, as the case may be, but shall not bar his right to sue for any other relief to which he may be entitled, by reason of such breach. This section is not applicable to the facts in hand because of the reasons which I have already given above in holding that provisions of Sections 21 and 22 are not applicable. If there is no contract there is no breach and breach is an essential condition of a contract or agreement under Section 24 of the Specific Relief Act. 12. Now it is to be seen whether the plaintiff can get the relief by virtue of provisions of Section 70 of the Indian Contract Act, which lays down that where a person lawfully does anything for another person, or delivers of to him, not intending to do so gratuitously, and such another person enjoys the benefit thereof, the latter is bound to make compensation to the former in respect of, or to restore, the thing so done or delivered. The benefit of this section again cannot be taken up by the plaintiff because the money was entrusted to Aruna Gupta by the plaintiff in the capacity of his legally wedded wife in order to run the household expenses and with the permission to her to keep that amount by way of her maintenance and also for the financial security. Virtually, it was a gift on the part of the plaintiff to his newly wedded wife. 13. Then it was submitted that under Section 65 of the Contract Act the plaintiff can take the benefit. This section lays down that when an agreement is discovered to be void, or when a contract becomes void, any person who has received any advantage under such agreement or contract is bound to restore it, or to make compensation for it, to the person from whom he received it. The benefit of this section again cannot be taken up by the plaintiff. Firstly, there was no agreement as alleged by the plaintiff. The plaintiff made false allegations in the plaint by stating that there was an oral agreement of sale. Defendant No. 1 never received any advantage or consideration under any such agreement. It is not the case of the plaintiff that the defendant laid the condition that she would marry him only if the plaintiff pays or deposits in her name a particular amount as a consideration for marriage. Defendant No. 1 never received any advantage or consideration under any such agreement. It is not the case of the plaintiff that the defendant laid the condition that she would marry him only if the plaintiff pays or deposits in her name a particular amount as a consideration for marriage. If the husband had opted to transfer some amount in the name of his wife either for her maintenance or for running household expenses or for her utilisation, this amount virtually becomes the property of the wife. It is the common case of the parties that after the marriage they lived in India and abroad and they became separate somewhere in the Month of November, 1994 on account of differences which arose between them. Finally a petition under Section 13 of the Hindu Marrige Act was filed by the wife in the Court of competent jurisdiction at Delhi. The plaintiff did not contest the petition and ultimately an ex parte decree of divorce was passed in favour of the wife. 14. Mr. Chhibbar then relied upon Gobind Appaji v. Miraji Rama, AIR 1945 Nagpur 67 and submitted that once the suit of the plaintiff for performance has been dismissed, his subsequent suit for return of consideration paid is not barred by the provisions of Sections 29 and 19 of the old Specific Relief Act. This judgment is not helpful to the plaintiff. In the cited case the plaintiff had made his case by virtue of provisions of Section 70 of the Contract Act and I have already held above that in this case Section 70 is not applicable. When the plaintiff gave the money to defendant No. 1, it was given to her in order to run household expenses, for her utilisation, to maintain herself, out of love and affection and perhaps with remote motive as her financial security. The learned counsel for the respondent No. 1 then relied upon Abdul Rahman v. Rahim Baksh, AIR 1929 Lahore 332. This judgment, in my opinion, helps the appellant rather than the respondent No. 1. In the cited case a minor entered into a contract for specific performance. He filed a suit for specific performance which was dismissed on the ground of want of mutuality for the contract. Thereafter, he filed a suit for refund of the earnest money paid by him. In the cited case a minor entered into a contract for specific performance. He filed a suit for specific performance which was dismissed on the ground of want of mutuality for the contract. Thereafter, he filed a suit for refund of the earnest money paid by him. In these circumstances, it was held that he can sue for the refund of the earnest money because there was a failure of consideration as is evident from the provisions of Section 65 of the Contract Act. We all know that by virtue of provisions of Section 11 of the Contract Act any contract entered into by a minor is void. As per Section 11 every person is competent to contract who is of the age of majority according to the law to which he is subject and who is of sound mind and is not disqualified from contracting by any law to which he is subject. In the present case there is no agreement at all vide which the defendant No. 1 agreed to sell her share in the property. 15. It was then submitted that under Order 7 Rule 7 of the Code of Civil Procedure the civil court has power to grant a relief to the plaintiff if made out from the case. Let us see whether the plaintiff can be granted the benefit of these provisions or not. Order 7 Rule 7 of the Code of Civil Procedure lays down that every plaint shall state specifically the relief which the plaintiff claims either simply or in the alternative, and it shall not be necessary to ask for general or other relief which may always be given as the Court may think just to the same extent as if it had been asked for. And the same rule shall apply to any relief claimed by the defendant in his written statement. In my opinion, the benefit of these provisions cannot be granted to the plaintiff. If the money had been paid by the plaintiff to his wife for the purpose of daily expenses including with the object of purchasing a vehicle with the clear intention that defendant No. 1 will have full control over those amounts, how the plaintiff can lay claim from the refund of the money. If the money had been paid by the plaintiff to his wife for the purpose of daily expenses including with the object of purchasing a vehicle with the clear intention that defendant No. 1 will have full control over those amounts, how the plaintiff can lay claim from the refund of the money. It is not an alternate case pleaded by the plaintiff that money was kept with defendant No. 1 as a trust or it was advanced to her by way of loan. The learned trial Court, in my opinion, fell in error in granting a money decree. The main reason advanced by the Court below as that defendant No. 1 hardly required any money for her maintenance. She was a lady of means at the time of her marrige and even thereafter. She was having landed property and, therefore, she was keeping the money not gratuitously and she must return the same to the plaintiff. I differ with the reasons of the learned trial Court and decide issue No. 6 against the plaintiff and in favour of defendant No. 1. In view of my above discussion and especially in view of reversal of finding on issue No. 6 against the plaintiff, this appeal succeeds, the judgment and decree of the trial court is hereby set aside and the suit of the plaintiff/respondent No. 1 is hereby dismissed against defendant No. 1 also. There shall be no order as to costs. Decree-sheet shall be drawn by the Registry and the trial Court record be sent back. Appeal succeeds.