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2002 DIGILAW 511 (CAL)

Sumita Mahanty v. Banashree Banerjee

2002-08-01

Dilip Kumar Seth, Joytosh Banerjee

body2002
JUDGMENT D. K. Seth, J.: Seeking enforcement of a contract for sale entered into by the plaintiff with the deceased husband of the defendant No.1, after pleading devolution of the property upon the wife, defendant No.1 through a Deed of Gift executed by the husband subsequent to the contract for sale, is an unfruitful exercise. As soon the transfer of interest by Deed of Gift is accepted and the deed of gift is treated as valid, the agreement for sale entered into prior to the execution of deed of gift can no more be enforced as against the donor. Acceptance of the authority to transfer by way of gift operates as an estoppel as against the person, who accepts this transfer and acts upon such transfer as a valid transfer, either to assail such transfer 'and object to the passing of the right or interest in the property to the donee, or to enforce a contract for sale entered prior to such transfer. 2. Therefore, the plaintiff cannot enforce her specific performance of an agreement based on the agreement executed by 'the husband of the defendant No. 1. However, she has every right to enforce specific performance of the agreement, if entered into, between herself and the defendant No. 1. She has alleged that the defendant No.1 had entered into a modified agreement to sell a part of the property originally agreed by the deceased husband at a reduced price, sometimes in 1988 after protracted negotiation. On these facts she has also adduced evidence to bring home the fact of such agreement. But there is no proof in writing. The entire assertion is based on oral evidence. It is a question of belief and disbelief. The learned Trial Court had believed this evidence and had arrived at the conclusion that there was such an agreement between the defendant No.1 and the plaintiff. Having gone through the depositions of the respective parties and the materials on record, we have reservation about the finding arrived at by the learned Trial Court in favour of the plaintiff. In our view, the finding tends to the side of perversity in the absence of any reasons given for believing the evidence of the plaintiffs witnesses. Yet we need not go into this question in view of the legal proposition we hereafter discuss. 3. In our view, the finding tends to the side of perversity in the absence of any reasons given for believing the evidence of the plaintiffs witnesses. Yet we need not go into this question in view of the legal proposition we hereafter discuss. 3. Now admittedly, the plaintiff seeks to enforce a specific performance of contract between herself and the defendant No.1. But such relief is to be granted on the basis of the findings recorded by the learned Trial Court. The Trial Court, however, has explained the effect of the Deed of Gift by holding that the Deed of Gift was executed on a consideration other than valuable consideration and was not without notice and as such, no interest could be passed on to the defendant No.1 by virtue of the Deed of Gift. At page 128 of the Paper Book, the learned Court had held that therefore by exhibit "A" the defendant acquired no interest in the "A" Schedule property. He repeated his conclusion at page 132 by holding that by Exhibit "A" the defendant acquired no right, title and interest in the suit property. If such proposition is accepted in that event, the defendant No.1 cannot be said to be the owner of the 5/8th share in the property in view of the fact of the existence of a minor son. It is not in dispute that the husband of the defendant No.1 had left behind a minor son along with the widow, the defendant No. 1. The existence of the minor son has not been disputed by the plaintiff or any of his witnesses. On the other hand, it was so elicited by the plaintiff through cross-examination of the defendant No.1, as we find at page 103 of the Paper Book and asserted by the defendant No.1 in her examination-in-chief apart from pleading in the written statement. 4. Mr. Bhattacharyya had sought to contend that the deceased was governed by Mitakshara school of Hindu law. But nowhere within the four corners of the pleadings made in the Trial Court or the evidence led, there was no mention about the governance of the deceased under the Mitakshara school of Hindu law. 4. Mr. Bhattacharyya had sought to contend that the deceased was governed by Mitakshara school of Hindu law. But nowhere within the four corners of the pleadings made in the Trial Court or the evidence led, there was no mention about the governance of the deceased under the Mitakshara school of Hindu law. Be that as it may, whether Mitakshara or Dayabhaga, no undivided family having been pleaded or even if pleaded, the same having been consisting of the deceased husband, the wife and the child and there being no clue that there are any other member or heir of the deceased, the widow and the son would definitely be the successor to the interest in the property of the deceased irrespective of the fact under which school of Hindu law the deceased was governed, Mitakshara or Dayabhaga. 5. As soon the minor's interest comes into existence, there cannot be any question of entering into an agreement by the defendant No.1 on behalf of the minor, until it is shown and proved that such agreement was entered into for the benefit of the minor. Until the minor is a party and is represented by the mother, neither the defendant No.1 can claim any right to deal with the minor's share in the property nor the plaintiff can maintain the suit before a Court of law for specific performance of a contract, in respect of the minor's share in the property, alleged to be entered by the mother of the minor. 6. Thus, even if we accept the finding of the learned Trial Court that no interest has been acquired by the defendant No.1 by virtue of the deed of gift, in that event, there cannot be any decree for specific performance as against the defendant No.1 in respect of the 5/8th share in the property, halfofwlo1ich is admittedly belong to the minor. 7. In the circumstances, the judgment, as we find, appears to be wholly perverse and contrary to law and is full of contradiction in itself. 8. Therefore, the judgment and degree cannot be sustained. 9. In the result, the appeal succeeds. The judgment and decree dated 30th September, 1991 passed by the learned Assistant District Judge, 9th Court, Alipore in Title Suit No. 66 of 1989 is hereby set aside, so far as it grants relief of specific performance. 10. 8. Therefore, the judgment and degree cannot be sustained. 9. In the result, the appeal succeeds. The judgment and decree dated 30th September, 1991 passed by the learned Assistant District Judge, 9th Court, Alipore in Title Suit No. 66 of 1989 is hereby set aside, so far as it grants relief of specific performance. 10. However, having regard to the facts and circumstances of the case, the suit is decreed only in respect of the defendant's prayer for refund of the earnest money assessed at a sum ofRs.40,000/- together with interest@ 6% simple interest per annum from 1988 till the date of payment. Such payment is to be made either by direct payment to the plaintiff or by depositing in the learned Court below within a period of six months from today. The judgment and decree passed by the learned Trial Court stands modified to that extent. 11. The appeal is thus allowed. 12. No order as to costs. Appeal allowed.