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Allahabad High Court · body

2009 DIGILAW 1508 (ALL)

BABULLI v. HAMIDUL BIBI

2009-04-17

SANJAY MISRA

body2009
SANKATHA RAI, J. ( 1 ) HEARD learned senior counsel assisted by Sri Ashish Kumar Singh learned counsel for the plaintiff-appellant and Sri Narendra Mohan learned counsel for the defendant-respondent nos. 9 and 10. This second appeal is being decided finally today itself with the consent of learned counsel for the parties. ( 2 ) THE plaintiff-appellant had filed a suit for specific performance with an alternative relief for recovery of the amount given by her in advance under the agreement of sale dated 18. 04. 78 against respondent no. 1. The plaintiff-appellants case was that she had entered into an agreement of sale and given advance for purchase of the house situate in Mohalla - Dhuniyana Tola, Mirzapur City which was purchased by the predecessor-in-interest of the respondent by two sale deeds in the year 1943 and 1947. The respondent no. 1 had accepted an advance of Rs. 2,000/- and the respondent no. 1 along with respondent nos. 2 to 5 who were her major son and daughters had signed the agreement whereas the respondent nos. 6 to 8 being minor children were represented through respondent no. 1 their natural mother Smt Hamidul Bibi. The agreement of sale was registered and it was provided that respondent no. 1 shall obtain permission of the District Magistrate prior to execution of the sale deed when she would be paid the remaining sale consideration. A sum of Rs. 400/- was also advanced by the plaintiff-appellant as expenses for obtaining the required permission of the District Magistrate. The cause of action for bringing the suit is alleged to have arisen when the respondents refused to executed the sale deed in spite of repeated requests. It is also stated that the suit for specific performance was dismissed by the Trial Court by the judgement dated 20. 01. 81 whereupon the defendants have sold the house in question to Bachcha Lal (Respondent no. 9) and Smt Lalmani wife of Bachcha lal (Respondent no. 10) who had been arrayed as respondents in the appeal. ( 3 ) THE defendants denied to have executed an agreement of sale and have taken the plea that they were in need of money and hence had agreed to execute a simple mortgage deed and the plaintiff-appellant by misrepresentation got an agreement of sale executed and registered. 10) who had been arrayed as respondents in the appeal. ( 3 ) THE defendants denied to have executed an agreement of sale and have taken the plea that they were in need of money and hence had agreed to execute a simple mortgage deed and the plaintiff-appellant by misrepresentation got an agreement of sale executed and registered. It was also stated by the defendants that the boundaries given in the agreement of sale related to a portion of the house and not for the entire house whereas the boundaries given in the plaint are quite different and therefore the agreement of sale could not be enforced. it is their case that the respondent nos. 6 to 8 were minors at the time of execution of the agreement of sale by their natural mother who under their personal law is not entitled to alienate the share of the minors being not a guardian de jure. ( 4 ) THE Trial Court upon the evidence led by the parties found that the agreement of sale was void inasmuch as the respondent nos. 6 to 8 were minors and the natural guardian could not execute the sale deed of their share and further that the agreement of sale described a different house whereas the plaint related to the western boundary and hence it was uncertain as to for which portion of the property the agreement of sale is required to be enforced. The Trial Court also found that instead of Rs. 2,000/-, only Rs. 1,000/- was advanced by the plaintiff to the defendant. ( 5 ) THE First Appellate Court while considering the agreement of sale found that the execution of the deed and its registration have been duly proved by the plaintiff and the case set up by the defendant that a simple mortgage deed was to be executed was disbelieved. The court supported its finding by the admission made by the defendants regarding putting their signatures on the deed dated 18. 04. 75 and upon perusal of the deed and the oral evidence, it recorded that the agreement of sale was for a portion of the house in suit. The First Appellate Court while considering the circumstance that after the suit of the plaintiff was dismissed, the defendants sold the property to other persons on 02. 02. 04. 75 and upon perusal of the deed and the oral evidence, it recorded that the agreement of sale was for a portion of the house in suit. The First Appellate Court while considering the circumstance that after the suit of the plaintiff was dismissed, the defendants sold the property to other persons on 02. 02. 81 and hence found that the intention of the defendants was for selling the house in question. While considering the question of enforcing the agreement of sale, it found that the same was not enforceable because the respondent nos. 6 to 8 were minors at the time of execution of the agreement of sale and the natural mother under their personal law could not sell the share of the minor children and held such a contract to be void. The First Appellate Court however found that respondent nos. 1 to 5 were major when they signed the agreement of sale and therefore it considered the enforceability of the agreement of sale with respect to the extent of the share of respondent nos. 1 to 5. It found that the description of the property in question was different in the agreement of sale and as claimed in the plaint and therefore after considering the sale deeds of 1943 and 1947 of the predecessors-in-interest of the respondents, it held that the relief claimed for specific performance of the property described in the plaint could not be granted because it was different from the property described in the agreement of sale. The First Appellate Court therefore did not decree the suit for specific performance but directed that the advance of Rs. 2,000/- taken by the defendants be refunded with interest to the plaintiff-appellants. ( 6 ) SRI Sankatha Rai learned senior counsel has submitted that the agreement of sale could not be held to be void in toto inasmuch as the major defendants had admittedly signed the agreement of sale and even if the share of the minors could not be alienated by the natural mother under their personal law, the agreement of sale with respect to the share of the major parties who had signed the agreement of sale was required to be enforced and to that extent the judgements of the courts below are liable to be set aside. His further submission is that even if the boundaries of the property in suit are different in the agreement of sale and the plaint, there is no dispute with respect to the share of respondent nos. 1 to 5 in the property in question and therefore also the suit for specific performance of the agreement of sale ought to have been decreed. ( 7 ) SRI Sankatha Rai has placed reliance upon a decision of this court reported in 1983 ALJ 212 Rafiq Khan and others vs. Mohammad Umar Khan and others to state that in that case, the minors filed a suit for cancellation of the sale deed executed of their share and the court found that the share of the minors under their personal law could not have been alienated by the natural guardian and hence such alienation was void and the court only cancelled the sale deed to the extent of the share of the minors. However, the sale deed executed by the major parties was upheld by the court. Basing his submission on this decision, he submits that in the present case, even if the share of the minors could not be alienated by the natural mother under their personal law by virtue of the agreement of sale, the courts below ought to have decreed the suit for specific performance insofar as the share of respondent nos. 1 to 5 are concerned because they had admittedly signed upon the agreement of sale and hence the same was enforceable against them. ( 8 ) INSOFAR as the above decision is concerned and the submission made by learned counsel for the plaintiff-appellant, it will be seen that in the case referred to, the sale deed had been executed and the share of the minors had been alienated. It was the minors who filed the suit for cancellation of the sale deed and therefore when the act of transfer had already taken place, the minors had the cause of action to resist the alienation of their share by a person not authorized to do so in accordance with law. In the present case, there is no alienation insofar as the share of the minors are concerned and the courts below have protected the rights of the minors by refusing to decree the suit for specific performance of the agreement of sale filed by the plaintiff. In the present case, there is no alienation insofar as the share of the minors are concerned and the courts below have protected the rights of the minors by refusing to decree the suit for specific performance of the agreement of sale filed by the plaintiff. In the present case, the minors share could not be sold and the agreement of sale dated 18. 04. 75 executed by the natural mother was void in view of the personal law of the parties. ( 9 ) LEARNED counsel has also referred to a decision in the case of Fathima Bivi and others vs. Sadhakatalla and others AIR 1977 MADRAS 215 for the very same proposition to state that the transfer of minors share by the natural mother is void under the Mohammadan Law. In this case also, the mother had executed the sale deed of the property wherein her major sons and minor sons had interest. The court held that in a suit for cancellation of the instrument on the ground that it is void, it can issue directions with respect to the cancellation of the sale deed relating to the share of the minors but it can accept the claim of the others provided they are able to discharge the debt for which the sale deed had been executed. Clearly in the said case, the law is quite settled that the minors share in the property cannot be sold by the natural mother and when the sale deed had been executed, the court found it to be void. ( 10 ) IN the present case, there is no sale deed that has been executed and the plaintiff seeks enforcement of the agreement of sale. The agreement of sale entered into by the natural mother of the share of the minor children under their personal law is void and therefore the agreement of sale insofar as the minor were concerned was rightly held to be void and not enforceable and the view of the courts below to such effect is in accordance with law. The agreement of sale entered into by the natural mother of the share of the minor children under their personal law is void and therefore the agreement of sale insofar as the minor were concerned was rightly held to be void and not enforceable and the view of the courts below to such effect is in accordance with law. ( 11 ) LEARNED counsel for the plaintiff-appellant has relied upon a decision of the Honble Apex Court in the case of Kartar Singh vs. Harjinder Singh and others AIR 1990 SC 854 to state that when a property was held jointly and the brother entered into an agreement of sale of his own share as well as the share of his sister and the sister refused to sell her share in the property in question, the plaintiff can seek specific performance at least insofar as the share of the vendor (brother) is concerned. The law is clearly laid down that when a party competent to contract has executed an agreement/contract to sell the property, the agreement/contract cannot be defeated only on the ground that a part of the property for which the agreement had been made could not be sold due to incapacity of the vendor or denial by the shareholder of the balance of the property. Consequently, the Honble Apex Court clearly held that specific performance in respect of the share of the property of the vendor can be decreed and cannot be refused on the ground that the property is to be partitioned first. Admittedly, when the sister had refused to abide by the contract executed by the brother with respect to her share, the agreement of sale could not be enforced insofar as the sister was concerned. The Honble Apex Court has clearly laid down the law that when the absentee vendor for some reason or the other refused to accept the agreement, there is no reason why the agreement should not be enforced against the vendor who had signed it and whose property is identifiable by his specific share. Sri Sankatha Rai has submitted on the basis of the aforesaid law that in the present case, the respondent nos. Sri Sankatha Rai has submitted on the basis of the aforesaid law that in the present case, the respondent nos. 1 to 5 could not resile from the execution of the sale deed and the courts below ought to have decreed the suit for specific performance at least with relation to the parties who were major and who had signed the agreement of sale. He also states that getting the shares of the majors and the minors partitioned is not an obstacle for the courts to decree the suit for specific performance even if the specific portion in the property in question is not identifiable. He states that when the shares are identifiable, the decree of specific performance of such identifiable shares of the vendor cannot be refused. ( 12 ) IN the present case, it will be seen that the respondent nos. 1 to 5 have admittedly signed the agreement of sale and the share of the minor respondents being respondent nos. 6 to 8 could not be sold by their natural mother under their personal law. The courts below considered this aspect of the matter and they recorded a finding of fact that the agreement of sale has described the property in a particular manner and it is not the property which forms subject matter of the plaint. The courts below found that the relief of specific performance was claimed for the property which was not the property described in the agreement of sale. Therefore, in the present case, although the shares are identifiable, but the property contracted to be sold under the agreement of sale was not the property referred to in the plaint and therefore, the courts below could not decree the suit for specific performance of a property which was not the subject matter of the agreement of sale. It is not the case of the plaintiff-appellant that upon discovery of the mention of a wrong property in the plaint, they got their plaint amended. There is a vast difference between the eastern portion of the house in question and the western portion of the house in question. When the agreement of sale describes the property as the western portion and relief in the plaint is of the eastern portion or the entire house, the suit for specific performance could not be decreed. There is a vast difference between the eastern portion of the house in question and the western portion of the house in question. When the agreement of sale describes the property as the western portion and relief in the plaint is of the eastern portion or the entire house, the suit for specific performance could not be decreed. Therefore, in view of the settled law, the agreement of sale can be enforced only with respect to the property contracted to be sold. Hence, no benefit of the decision in the case of Kartar Singh (supra) can be given to the plaintiff-appellants for the aforesaid reason. ( 13 ) LEARNED counsel has placed reliance on a decision in the case of Kumar Gonsusab and others vs. Mohammad Miyan urf Baban and others 2009 (106) RD 660 and submits that an agreement to sell creates no interest in the suit property in favour of the vendee. There is no dispute to the said law laid down by the Honble Apex Court and admittedly in the present case, an agreement of sale has been entered into and the courts below have denied a decree for specific performance of agreement of sale and therefore, no right, title or interest in the property in suit has devolved in any manner upon the plaintiff-appellants. ( 14 ) RELIANCE has been placed on a decision of Honble Apex Court in A. Abdul Rashid Khan (dead) and others vs. P. A. K. A. Shahul Hamid and others (2000) 10 SCC 636 to state that when the joint owner of the property agrees to sell it, he is bound to execute the sale deed at least to the extent of his own share and the agreement of sale would be specifically enforceable to that extent. ( 15 ) IN the present case, admittedly respondent nos. 1 to 5 were majors, i. e. respondent no. 1 was the mother, respondent no. 2 to 5 were major son and daughters and they had executed the agreement of sale by signing the same and getting it registered. Therefore, it is submitted that in view of the law laid down by Honble Apex Court, the plaintiff-appellant was entitled to a decree of specific performance at least to the extent of the share of the vendors who were otherwise competent in law to enter into a contract. Therefore, it is submitted that in view of the law laid down by Honble Apex Court, the plaintiff-appellant was entitled to a decree of specific performance at least to the extent of the share of the vendors who were otherwise competent in law to enter into a contract. In the present case, it will be seen that the courts below have denied the relief of specific performance of contract on two grounds. First, is related to the minors, i. e. respondent nos. 6 to 8 where it is held that the natural mother could not alienate the share of the minor children under their personal law and any such alienation or contract to alienate would be void. The view of the courts below on the issue of alienation of the share of the minors is in accordance with law and does not require any interference in this second appeal and the substantial question of law raised is answered in the negative. The natural guardian could not alienate the share of the minors under the Mohammadan Law. ( 16 ) INSOFAR as the share of the major vendors (respondent nos. 1 to 5) is concerned, the law provides that a suit for specific performance can be decreed to that extent and the plea of partition of undivided share or the plea of pre-emption of other co-owners cannot come in the way of decreeing such a suit. The courts below while considering this aspect of the matter have recorded a concurrent finding that the property which was the subject matter of the agreement of sale was not the property for which the suit for specific performance had been filed. The specific finding of the First Appellate Court is quoted hereunder: - "the deed Ex. 1 speaks about the agreement to sell of only eastern portion of the house and not the western. Therefore, looking to the oral evidence of the parties and the deed of agreement itself I am of the opinion that only half portion of the house in suit was agreed by the respondents to be sold to the appellant irrespective of the fact of consideration of Rs. 48,00/- for which the house in suit was later on sold to the respondent no. 11. 48,00/- for which the house in suit was later on sold to the respondent no. 11. The house in suit had become subject matter of dispute and litigation which appears to have weighed and minimised its value for transfer to the respondent no. 11. Anyway, the parties are bound by the terms of the deed and it is futile for the appellant to contend that by her notice dated 4. 9. 75 and 23. 10. 75 she made it clear to the respondents that entire house in suit was agreed by them to be sold to her. The respondents denied to have agreed to sell any portion of the house by their reply and put forward the theory of the simple mortgage. Accordingly, I am of the view that only half eastern portion of the house was agreed to be sold by the respondents to the appellant as mentioned in the deed Ex. 1 and not the entire house in suit. " ( 17 ) THEREFORE, although the plaintiff-appellants could be made entitled to a decree of specific performance with respect to the shares of the vendors, but due to the uncertain description of the property in the plaint and the relief claimed by them, the courts below could not decree the suit even to that extent. For the aforesaid reason, the suit was rightly decreed for refund of the amount of sale consideration. The substantial question of law no. b is also answered in the negative. The suit could not be decreed for specific performance. ( 18 ) THE respondents nos. 9 and 10 have filed a cross objection. The cross objection is relating to the part of the decree of the First Appellate Court where refund of a sum of Rs. 2,000/- with interest @ 1. 5% per mensem has been decreed. According to Sri Narendra Mohan learned counsel for the cross objector, the Trial Court had recorded a specific finding that a sum of Rs. 1,000/- was advanced at the time of executing the agreement of sale. He states that the First Appellate Court has not set aside the said finding of the Trial Court and has decreed the suit for refund of the amount for a sum of Rs. 2,000/ -. 1,000/- was advanced at the time of executing the agreement of sale. He states that the First Appellate Court has not set aside the said finding of the Trial Court and has decreed the suit for refund of the amount for a sum of Rs. 2,000/ -. Upon going through the judgement of the First Appellate Court, it will be seen that the First Appellate Court has clearly read the agreement of sale (Ex.- 1) wherein it has been recorded that an advance of Rs. 2,000/- has been given. Insofar as the payment of Rs. 400/- given to the respondents for expenses of getting permission of the District Magistrate is concerned, the First Appellate Court has found the same not to inspire much confidence and has therefore decreed the suit for refund of Rs. 2,000/ -. The submission of learned counsel for the cross objector to the contrary is therefore not acceptable, particularly in view of the fact that the First Appellate Court has reversed the finding of the Trial Court on the question of the amount of sale consideration given at the time of agreement of sale. Consequently, the cross objection insofar as the amount of refund is concerned cannot be accepted and is accordingly rejected. ( 19 ) IN view of the aforesaid circumstances, it will be seen that the issues relating to Section 12 of the Specific Relief Act of specific performance of a part of contract cannot be a substantial question of law in this second appeal for the reason that the property itself has been incorrectly described in the plaint whereas the agreement of sale was not with relation to the property for which relief has been sought and therefore there was no occasion for decreeing the suit of specific performance for a part of the contract. ( 20 ) A further submission has been made by learned counsel for the plaintiff-appellant that the issue of Section 29 of the Indian Contract Act was neither pleaded nor raised by the parties and therefore, the First Appellate Court could not carve out a new case for the defendants by holding that the agreement of sale was void for uncertainty. Insofar as this submission on Section 29 of the Indian Contract Act is concerned, it will be seen that the suit filed by the plaintiff-appellant was for specific performance of the agreement of sale. Insofar as this submission on Section 29 of the Indian Contract Act is concerned, it will be seen that the suit filed by the plaintiff-appellant was for specific performance of the agreement of sale. The courts can decree such a suit but when the description of the property itself is different in the plaint from that of the property agreed to be sold in the agreement of sale, the courts cannot decree such a suit and therefore, insofar as the uncertainty of the property described in the agreement of sale from that of the property described in the plaint is concerned, it would render such an agreement void for uncertainty and if an agreement is void u/s 29 of the Indian Contract Act, the same cannot be enforced by a decree for specific performance of a part of the contract. Therefore, even if such a plea is not raised in the written statement or by the defendants, the court at the time of considering an agreement of sale for its specific performance has to identify the properties for which the decree is being sought and if the agreement defining the property is itself uncertain from the description of the property in the plaint, the courts cannot decree such a suit. The submission of learned counsel for the plaintiff-appellant that the plea of Section 29 of the Indian Contract Act could not have been considered by the First Appellate Court is therefore not acceptable. ( 21 ) FOR the aforesaid reasons, the second appeal has no force. It is accordingly dismissed. The cross objection filed by the defendants is also dismissed. No order is passed as to costs. .