Research › Search › Judgment

Orissa High Court · body

2017 DIGILAW 1375 (ORI)

Jami Kanyakumari Devi v. Gopiram Agrawal

2017-11-29

A.K.RATH

body2017
JUDGMENT : A.K. RATH, J. 1. Defendant no. 1 is the appellant against a confirming judgment. 2. The plaintiff-respondent instituted Title Suit No. 67 of 1989 in the court of the learned Civil Judge (Sr. Division), Ganjam-Gajapati, Berhampur for Specific Performance of Contract. The case of the plaintiff was that the suit house was the ancestral property of J. Badrinarayana Prusty, husband of defendant no. 1 and others. In a family partition of the year 1959, the house was allotted to him. He executed a registered settlement deed settling half share in favour of his wife-defendant no. 1 and half share in favour of his minor sons in the year 1968. Defendant no. 1 was the mother guardian of her minor sons, defendant nos. 2 to 4. To press her legal necessity, she entered into a registered deed of agreement on 11.9.1984 with the plaintiff to sell the suit house for consideration of Rs. 50,000/- and accepted Rs. 10,000/- towards advance. The deed was registered. The agreement stipulated that the sale deed shall be registered within two years on receipt of the balance consideration. The plaintiff requested defendant no. 1 many a times to receive the balance consideration and execute the sale deed. She had also sent a registered notice and telegrams to her. With this factual scenario, the suit was filed seeking the relief mentioned supra. 3. Defendant no. 1 filed written statement denying the assertions made in the plaint. According to her, she had not entered into an agreement with the plaintiff to sell the suit house nor received any advance amount. Her husband and the plaintiff colluded together and took her signatures and thumb impression on the document telling her that the document was about partition of the property for providing maintenance to her and her children. She is a pardanasin lady. She was not aware of the contents of the document. Defendants 2 to 4 filed separate written statement. It was pleaded that the suit property was ancestral property. They being the coparceners the agreement for sale of the property was invalid. Their father was alive. He was the natural guardian. Defendant no. 1 had no right to enter into an agreement to sell the suit property. There was no legal necessity in the family. So, there was no occasion for sale of the suit property in the interest of the family and the minors. 4. Their father was alive. He was the natural guardian. Defendant no. 1 had no right to enter into an agreement to sell the suit property. There was no legal necessity in the family. So, there was no occasion for sale of the suit property in the interest of the family and the minors. 4. Stemming on the pleadings of the parties, the learned trial court struck four issues. The parties led evidence, both oral and documentary. In an elaborate consideration of the oral and documentary evidence and pleadings, the learned trial court came to hold that defendant no. 1 had executed a registered document, vide Ext.1, after understanding the contents thereof. But then, she was not competent to alienate the co-parcenery property, where minors-defendants 2 to 4 had interest. The agreement for sale of the suit house was not enforceable. Held so, it rejected the Specific Performance of Contract. However, a direction was issued to defendant no. 1 to repay the advance of Rs. 10,000/- along with pendent lite and future interest at the rate of 6% per annum. Felt aggrieved, the plaintiff filed T.A. No. 39 of 1996 in the court of the learned District Judge, Ganjam-Gajapati, Berhampur. Defendant no. 1 also filed T.A. No. 42 of 1996 in the same court. Both the appeals were heard analogously and eventually dismissed. 5. The Second Appeal was admitted on the following substantial questions of law. “1. Whether the claim of refund of consideration money made in 1993 whereas the cause of action arose in the year 1989 and the suit was filed in 1989 will be barred by limitation under Article 55 of the Indian Limitation Act? 2. Whether Section 65 of the Contract Act is applicable in the facts and circumstances of the case?” 6. Heard Mr. S.S. Rao, learned Advocate for the appellant. None appeared for the respondent. 7. Mr. Rao, learned Advocate for the appellant submitted that both the courts concurrently held that agreement to sell was void one. The courts below fell into patent error in law in directing defendant no. 1 to refund the advance money. 8. Sec. 33(2)(b) of the Specific Relief Act, 1963 provides: “33. None appeared for the respondent. 7. Mr. Rao, learned Advocate for the appellant submitted that both the courts concurrently held that agreement to sell was void one. The courts below fell into patent error in law in directing defendant no. 1 to refund the advance money. 8. Sec. 33(2)(b) of the Specific Relief Act, 1963 provides: “33. Power to require benefit to be restored or compensation to be made when instrument is cancelled or is successfully resisted as being void or voidable:- (1) xxx xxx xxx (2) Where a defendant successfully resists any suit on the ground— (a) xxx xxx xxx (b) that the agreement sought to be enforced against him in the suit is void by reason of his not having been competent to contract under section 11 of the Indian Contract Act, 1872 (9 of 1872), the Court may, if the defendant has received any benefit under the agreement from the other party, require him to restore, so far as may be, such benefit to that party, to the extent to which he or his estate has benefited thereby.” 9. On a bare perusal of clause (b) of sub Sec. 2 of Sec. 33 of the Specific Relief Act, it is clear that where a defendant successfully resists any suit on the ground that the instrument sought to be enforced against him in the suit is void by reason of his not having been competent to contract u/s. 11 of the Indian Contract Act, 1872, the Court may require the defendant to restore the benefit under the agreement, if he has received the same from the other party. The section is based on the doctrine of restitution in integrum (returning everything to the state as it was before). The precondition for restoration of benefit are that the agreement is void by reason of the incompetency to contract and the person incompetent has received any benefit under the agreement from the other party. 10. Sec. 65 of the Indian Contract Act deals with obligation of person who has received advantage under void agreement, or contract that becomes void. The section is also based on the doctrine of restitution in integrum. The courts below applied the principles underlying Sec. 65 of the Indian Contract Act. 10. Sec. 65 of the Indian Contract Act deals with obligation of person who has received advantage under void agreement, or contract that becomes void. The section is also based on the doctrine of restitution in integrum. The courts below applied the principles underlying Sec. 65 of the Indian Contract Act. Both the Sec. 33(2)(b) of the Specific Relief Act and Sec. 65 of the Indian Contract Act are based on the principles of restitution in integrum. There is no conflict between the two provisions. The suit was filed within the prescribed period of limitation. The substantial questions of law are answered accordingly. 11. In the wake of the aforesaid, the appeal, sans merit, deserves dismissal. Accordingly, the same is dismissed. No costs.