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Madhya Pradesh High Court · body

2006 DIGILAW 159 (MP)

ABDUL HANEEF v. MOHD SEHJAD

2006-01-27

S.L.JAIN

body2006
Judgment ( 1. ) INVOKING appellate jurisdiction of this Court under Section 96 of the Code of Civil Procedure, the appellant has filed this appeal calling in question the validity, legality, propriety and correctness of the judgment and decree dated 31-1-92, passed by IV th Additional District Judge, Sagar, in C. S. No. 31-A/91 decreeing the plaintiffs suit for specific performance of the contract to the extent of half portion of appellant/defendant No. 2 and for refund of Rs. 2,750/ -. ( 2. ) THE facts leading to the filing of this appeal, shortly narrated, are that the respondents/plaintiffs filed a suit for specific performance of the contract against the appellant and his brother Abdul Majid alleging that the defendants in the month of September, 1983 came to Sagar and entered into an agreement with the plaintiff for sale of their house for a consideration of rs. 31,500/ -. They demanded a sum of Rs. 18,500/- as advance money but the plaintiffs were not having that much money, therefore, they offered the defendants to take some amount in the form of earnest money. The defendants insisted for the payment of Rs. 18,500/- and asked the plaintiffs that if they do not have the money, the same may be paid after fifteen days and on payment of rs. 18,500/- the agreement would be executed. At that time defendant No. 1, abdul Majid, the brother of the appellant also told the plaintiffs that after fifteen days if he fails to come to Sagar, his brother, the defendant No. 2/ appellant would execute the agreement and that would be binding on him also and he would come at the time of registration of the sale deed. ( 3. ) THE plaintiffs also averred that on 3-10-83 defendant No. 2 received rs. 18,500/- as earnest money on behalf of himself and his brother, Abdul Majid and agreed to sell the suit house for Rs. 31,500/ -. It was agreed that remaining amount of consideration would be taken at the time of registration of the sale deed. A period of four months i. e. , up to 3-2-84 was settled for the execution of the sale deed. It was agreed by defendant No. 2 on behalf of both the brothers that vacant possession of the suit house shall be given to the plaintiffs after getting the same from the tenants. A period of four months i. e. , up to 3-2-84 was settled for the execution of the sale deed. It was agreed by defendant No. 2 on behalf of both the brothers that vacant possession of the suit house shall be given to the plaintiffs after getting the same from the tenants. Thereafter, the defendants delivered vacant possession of three rooms to the plaintiffs. The plaintiffs also averred that in the month of January, 84 they went to the suit house and found that the area is less than what is shown in the map given by the defendants, therefore, on 25-1-84 they wrote a letter to the defendants in this regard and also served them with a notice dated 27-1-84. The defendants gave a false reply to the notice and by implication refused to execute the sale deed. The plaintiffs further averred that in order to collect money for purchasing the suit house plaintiff No. 2 sold his house having a value of Rs. 17,500/- for a small amount of Rs. 10,000/- and thus suffered a loss of Rs. 7,500/- to avoid any delay in payment of remaining amount of consideration. ( 4. ) THE plaintiff also pleaded that the neighbours of the suit house filed a suit against the defendants and the plaintiffs for permanent injunction. The suit was filed in collusion with the defendants in order to avoid the execution of the sale deed. As the sale deed was not executed, the plaintiffs filed the suit for specific performance of the contract and in the alternative, they claimed refund of earnest money together with interest and for damages of Rs. 7,500/- suffered by the plaintiff No. 2 in selling his house in hurry at a low price. ( 5. ) THE defendants by filing separate written statements controverted the allegations made in the plaint. The defendant No. 1 stated that he never entered into an agreement to sell the suit house. The agreement in question was not executed by him. No amount was received by him in the form of consideration for sale. He denied that the possession of any portion of the house was handed over to the plaintiffs. The defendant No. 1 stated that he never entered into an agreement to sell the suit house. The agreement in question was not executed by him. No amount was received by him in the form of consideration for sale. He denied that the possession of any portion of the house was handed over to the plaintiffs. The defendant No. 2 in his separate written statement has stated that earlier an agreement to sell the suit house was entered into between him and Kripal Singh who wanted to purchase the suit house in the name of Prem Singh. Subsequently, Kripal Singh dropped the idea of purchasing the suit house, therefore, in order to get the refund of earnest money Kripal singh persuaded and compelled the defendant No. 2 to execute fresh agreement in favour of the plaintiffs. The defendant No. 2 had to sign a typed agreement which was brought by plaintiff No. 1. He never told the plaintiffs that he is executing the agreement on behalf of defendant No. 1 also. ( 6. ) THE defendant No. 2 also pleaded that no possession of any portion of the suit house was delivered to the plaintiffs. The plaintiffs, taking the advantage of their absence from Sagar, took possession of some portion of the suit house. It is also the case of defendant No. 2 that the plaintiffs themselves were not willing to perform their part of the contract. As the plaintiffs did not perform their part of the contract, the earnest money stands forfeited. ( 7. ) THE Trial Court, on the basis of the pleadings of the parties framed issues and recorded a finding that the defendant No. 1 was not a party to the agreement. It was defendant No. 2/appellant alone who entered into the agreement. The plaintiffs are entitled to get the sale deed executed of half portion of defendant No. 2 over the suit house, on payment of consideration. As the amount received by defendant No. 2 is more than the half of the portion of the suit house, he is liable to refund of Rs. 2,750/- to the plaintiffs; and decreed the plaintiffs suit as stated above. ( 8. ) IT is this judgment and decree which is the cause of grievance of the defendant No. 2/appellant. ( 9. 2,750/- to the plaintiffs; and decreed the plaintiffs suit as stated above. ( 8. ) IT is this judgment and decree which is the cause of grievance of the defendant No. 2/appellant. ( 9. ) THE plaintiffs/respondents also filed a cross objection on the ground that the Trial Court has erroneously held that the defendant No. 1, abdul Hanif was not a party to the agreement. The decree ought to have been given for the sale of the whole house. ( 10. ) I have heard Shri R. S. Tiwari, learned Counsel appearing for the appellants and Ku. Janhvi Jaamdar, Counsel, appearing for the respondents; and perused the record. ( 11. ) LEARNED Counsel for the respondents, during the course of arguments, vehemently submitted that she does not press the cross objection. On merit also there is ample evidence on record to the effect that it was the defendant No. 2 alone who executed the agreement in question. Defendant No. 1 was not a party to the agreement. Therefore, the decree for specific performance of the contract could not have been passed against him. The agreement executed by defendant No. 2 alone in favour of the plaintiffs does not bind his brother, defendant No. 1. Therefore, the cross objection is dismissed. ( 12. ) SO far as the appeal filed by the appellant is concerned, learned counsel appearing for the appellant vehemently submitted that there is no satisfactory evidence that the plaintiffs were ready and willing to perform their part of contract. In the notice, Ex. P-2, plaintiffs themselves stated that they are not ready to take the possession unless the same is delivered in accordance with the map. ( 13. ) THE contention is acceptable. The plaintiffs have not stated that they ever asked the defendants to get the remaining amount of the consideration and execute the sale deed. The plaintiffs have not stated that they had been ready and willing to perform their part of the contract. No. issue was framed by the Trial Court on this point. Therefore, in the absence of any specific pleading and proof that the plaintiffs were always ready and willing to perform their part of the contract the Trial Court could not have decreed the plaintiffs suit to the extent of l/2nd portion of the suit house. ( 14. No. issue was framed by the Trial Court on this point. Therefore, in the absence of any specific pleading and proof that the plaintiffs were always ready and willing to perform their part of the contract the Trial Court could not have decreed the plaintiffs suit to the extent of l/2nd portion of the suit house. ( 14. ) EVEN otherwise, according to the provisions under Section 12 of specific Relief Act the general rule is that the Court should not direct specific performance of a part of the contract when the contract becomes either wholly or partly incapable of performance. The specific performance of the part of a contract can be directed only where the part which is left unperformed bears only small portion to the whole in value. In the present case, the part which is to be left unperformed bears half portion of the whole house, therefore, under the circumstances of the case, I do not consider it appropriate to confirm the decree for the sale of the half portion of the suit house. ( 15. ) THE property in question is a joint property of Muslim family in which the brother may have right of preemption, therefore, it will not be proper to grant relief of specific performance of the contract. In Damroolaal Harchand and others V. Laxminarayan Ramanujdas Brijpuria and others, 1976 MPLJ 518 , it has been held that where the part unperformed is not a small portion of whole, specific performance cannot be allowed. ( 16. ) IN addition to the foregoing reasons the performance of the contract would involve hardship on the appellant. The agreement is alleged to have been executed on 3-10-83. Since then a long period of 23 years has elapsed. After such a long delay it will not be proper to grant relief by way of specific performance of the contract. Therefore, even if accepting that the plaintiffs had been ready and willing to perform their part of the contract, in view of the fact that a long time has elapsed, the portion of which specific performance has been decreed by the Trial Court is not only a small portion of the whole, the right of preemption is available to other members of the family, I do not consider it appropriate to maintain the decree for specific performance of the part of the contact. ( 17. ( 17. ) THEREFORE, for the reasons stated above, the decree impugned, so far as it relates to specific performance of the contract, is set aside. It is directed that the appellant shall refund the amount of Rs. 8,500/- received by him by way of earnest money and shall also pay a sum of Rs. 20,000/- by way of compensation to the respondents. The appellants shall also pay interest @ Rs. 6% per annum on this amount of Rs. 28,500/- from the date of this judgment till the date of realisation. The parties shall bear their own costs.