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2018 DIGILAW 1449 (ALL)

Mangala Prasad v. Chhedi Lal

2018-07-02

SIDDHARTH

body2018
JUDGMENT : 1. Heard Shri Jamwant Maurya, learned counsel for the appellant and Shri Mahipal Singh and Shri Prashant Kumar Singh, learned counsels for the respondent. 2. This is defendant's second appeal against the judgment and decree dated 26.11.1984 passed by Shri Vinod Kumar, IIIrd, Additional District Judge, Varanasi in Civil Appeal No. 27 of 1984 allowing the appeal and setting aside the judgment and decree dated 15.12.1983 passed by Shri P.N. Mishra, Munsif City, Varanasi in Original Suit No. 245 of 1982, (Chhedi Lal vs. Mangla Prasad). 3. Plaintiff instituted a suit for specific performance of contract of sale. 4. Plaintiff's case is that the owner of house no. B-20/175 situated in Mohalla Bhelupura, City Varanasi was Badri Prasad, father of defendant; that Badri Prasad executed a mortgage deed dated 08.04.1953 in favour of Mst. Suggi Devi widow of Kedar Sao for an amount of Rs. 15,000/- with interest at the rate of Rs. 1 per month and the property aforesaid was mortgaged; that Badri Prasad did not get the mortgage redeemed after paying amount of Rs. 15,000/- to Mst. Suggi Devi; that defendant was born on 27.10.1960 and thereafter his mother and late father, Badri Prasad, died on 14.11.1964, leaving behind the defendant as sole owner of aforesaid house; that defendant lived with his maternal grandfather, Shri Roop Narayan; that Mst. Suggi Devi instituted an Original Suit No. 355 of 1968 against the defendant, representing him through his maternal grandfather, Roop Narayan, for recovery of principal amount and interest on the basis of the mortgage deed dated 08.04.1953; that the decree was put to execution and the maternal grandfather of defendant entered into an agreement to sale dated 14.07.1972 with the plaintiff for an amount of Rs. 6,000/- regarding 1/2 of house situated on southern part of the disputed property and received Rs.5185/- from the plaintiff and deposited Rs. 5106.45 towards satisfaction of the decree of the trial court and kept Rs. 51.55 himself; that plaintiff had always been ready and willing to pay the balance sale consideration of Rs. 6,000/- regarding 1/2 of house situated on southern part of the disputed property and received Rs.5185/- from the plaintiff and deposited Rs. 5106.45 towards satisfaction of the decree of the trial court and kept Rs. 51.55 himself; that plaintiff had always been ready and willing to pay the balance sale consideration of Rs. 842/- to the defendant but his maternal grandfather avoided execution of sale deed; that finally plaintiff sent a notice dated 13.02.1975 to the maternal grandfather of the defendant for executing the sale deed of the southern part of disputed house after taking remaining amount of sale consideration but he did not executed the same; that in part performance of contract possession of two rooms was given to the plaintiff by maternal grandfather of defendant and hence the suit was institued. 5. Defendant filed his written statement stating therein that his father Badri Prasad was involved in business of sale of vegetables and because of bad habits and habit of expenditure beyond means he executed the mortgage deed for an amount of Rs. 15,000/- in favour of Mst. Suggi Devi; that the disputed house is ancestral and could not have been mortgaged by his father and if he took the loan and mortgaged the house it does not binds him even though the suit for recovery of loan amount has been decreed in favour of Mst. Suggi Devi; that Roop Narayan, his maternal grandfather, was only a Car Driver and he could not contest the Suit No. 355 of 1968, instituted by Mst. Suggi, properly and therefore it got decreed against him; that plaintiff is not in possession over the disputed property and is only a tenant; that the suit is barred by time and deserves to be dismissed. 6. On the basis of the pleadings of the parties the following issues were framed by the trial court -: (1) Whether the decree passed in Original Suit No. 255 of 1968 is binding on the defendant? (2) Whether Roop Narayan was competent to execute agreement to sell dated 01.08.1972 regarding half share of house No. B-20/175, Bhelupura, Varanasi? If yes, then its effect ? (3) Whether plaintiff is entitled to enforce the agreement dated 01.08.1972? (4) Whether the Suit as framed is defective? (5) Whether the Suit is barred by time ? (6) To what relief is plaintiff entitled ? 7. If yes, then its effect ? (3) Whether plaintiff is entitled to enforce the agreement dated 01.08.1972? (4) Whether the Suit as framed is defective? (5) Whether the Suit is barred by time ? (6) To what relief is plaintiff entitled ? 7. Learned trial court decided the Issue No. 4 holding that the frame of suit is not defective. Issue No. 5 was decided holding that suit of the plaintiff is not barred by time. Issue no. 1 was decided holding that the issue is not required to be decided since the main issues are Issue No. 2 and 3. Issue No. 2 and 3 were decided holding that Roop Narayan was not competent to execute the agreement dated 01.08.1972 and the plaintiff is not entitled to enforce the same. Issue No. 6 was decided holding that the plaintiff is not entitled to any relief and accordingly the suit of the plaintiff was dismissed. 8. Plaintiff preferred a Civil Appeal No. 27 of 1984 before the Lower Appellate Court which framed the following points of determination-: "Whether agreement dated 01.08.1972 is correct and legal document and plaintiff has right to enforce the same?" 9. Lower Appellate Court found that in pursuance of the decree in favour of Mst. Suggi Devi the entire house in dispute was being sold of Rs. 6,000/- and Roop Narayan entered into an agreement to sell for Rs. 6,000/- only regarding half of the house and saved the entire house from auction in pursuance of the decree. Therefore, the agreement to sell dated 01.08.1972 is binding on the defendant and the decree of the trial court was set aside and suit of the plaintiff was decreed. 10. This Second Appeal has been preferred by the defendant against judgment of the Lower Appellate Court and it has been admitted on 12.12.1984 on the following substantial questions of law -: (1) Because the trial court rightly comprehended the pleadings, framed adequate issues and as a result of proper appraisal and appreciation of the evidence and material on record dismissed the suit. (2) Because the Lower Appellate Court traversing the findings recorded by the trial court or finding fault with the reasonings assigned by the Trial Court in support of its findings erroneously and illegally recorded findings of reversal. (2) Because the Lower Appellate Court traversing the findings recorded by the trial court or finding fault with the reasonings assigned by the Trial Court in support of its findings erroneously and illegally recorded findings of reversal. (3) Because the findings of judgment and decree of Lower Appellate Court did not fulfilled or satisfied the test laid down by the Supreme Court in respect of the finding of reversal. The findings of judgment and decree of the Lower Appellate Court are vitiated by error of law and suffer from substantial error of law. (4) Because the suit was founded upon contract or sale (Satta) dated 01.08.1972, illegally executed by Roop Narayan the certificated guardian of the home or appellant, Mangla Prasad it was clearly barred by the order dated 01.08.1972 and 23.09.1972 and 09.10.1972 passed by the learned District Judge in Misc. Case No. 25 of 1975. (5) Because the legal effect and scope and implication of restraint orders dated 01.08.1972, 23.09.1972 and 09.10.1972 has not been properly appreciated by the Lower Appellate Court while decreeing the suit. (6) Because the order dated 09.10.1972 restraining the sale of the minor's property by the guardian or from entering into any agreement to sell having become final no sale on the basis of agreement to sell, even if executed by such guardian, was permissible in law being violative of Court's order. (7) Because the suit for specific contract of sale in the instant case was barred by the principles of res-judicata. (8) Because the relief of specific performance being discretionary it was a fit case for exercise of discretion against the plaintiff- respondent and the suit for sale ought to have been dismissed. (9) Because the decree under appeal is incorrect in law. 11. After hearing the counsel for the parties all the substantial questions of law are being decided together. 12. Learned trial court has recorded the finding that defendant was minor when the execution of the mortgage decree was executed in favour of Mst. Suggi Devi and ultimately house in dispute was directed to be auctioned in execution proceedings. On coming to know about the auction of the entire house for an amount of Rs. 6,000/-, the plaintiff, who was tenant in the disputed house of half portion, offered to purchase only half portion of the house for an amount of Rs. 6,000/-. Suggi Devi and ultimately house in dispute was directed to be auctioned in execution proceedings. On coming to know about the auction of the entire house for an amount of Rs. 6,000/-, the plaintiff, who was tenant in the disputed house of half portion, offered to purchase only half portion of the house for an amount of Rs. 6,000/-. The maternal grandfather of the defendant was appointed guardian of the defendant by the District Judge and in order to save the entire property from the auction he applied before the learned District Judge to grant him permission to sell half of the disputed property in favour of the plaintiff for protecting the entire house of the minor from auction proceedings initiated by Mst. Suggi Devi. The District Judge allowed his application on 14.07.1972 and on 01.08.1972 the agreement to sale of half southern portion of the house was executed by Roop Narayan in favour of plaintiff on behalf of the defendant acting as his guardian. On the same date, i.e., 01.08.1972 another tenant of defendant Kumar made an application before the District Judge offering an amount of Rs. 8,500/- for purchasing the half portion of the disputed house of the defendant and District Judge cancelled the permission granted to Roop Narayan for executing the agreement to sale in favour of the plaintiff by order dated 01.08.1972. Learned trial court found that the later order dated 01.08.1972 passed on application of third party, Kumar, was binding on Roop Narayan and therefore the agreement to sell executed by Roop Narayan in favour of the plaintiff was illegal and it cannot be enforced by the court of law and the suit of the plaintiff was dismissed. 13. The lower appellate court has recorded the finding that the notice of the order dated 01.08.1972 was not served on Roop Narayan since from the order itself it is clear that the District Judge directed Kumar to take steps for service of the order and he took steps for the same on 02.08.1972. Therefore, the notice of the order was neither served on Roop Narayan nor on the defendant on 01.08.1972 i.e., the date of execution of disputed agreement to sell, and has decreed the suit of the plaintiff. 14. Aggrieved by the judgment of the Lower Appellate Court the defendant has approached this Court. Therefore, the notice of the order was neither served on Roop Narayan nor on the defendant on 01.08.1972 i.e., the date of execution of disputed agreement to sell, and has decreed the suit of the plaintiff. 14. Aggrieved by the judgment of the Lower Appellate Court the defendant has approached this Court. From the facts on record it is clear that in pursuance of a decree dated 22.03.1971 passed in Original Suit No. 355 of 1968 of Mst. Suggi Execution Case No. 25 of 1972 was filed by the decree-holder and the entire property in dispute was directed to be auctioned for recovery of decretal amount by the Executing Court. When the plaintiff came to know about the auction of the entire house he made the genuine offer of purchasing half southern portion of disputed house for an amount of Rs.6,000/- and after the permission of the Court obtained from court, Roop Narayan executed the agreement to sell in favour of plaintiff and deposited the decretal amount of Rs. 5,106.45 and got the discharge of decree in full satisfaction and managed to save half portion of the disputed house from auction proceedings in the aforesaid suit. Had the auction taken place, in the absence of deposit of the deceretal amount, the entire house would have been auctioned in favour of third party and in that event, the suit property would have been sold at that very time and nothing would have remained for the plaintiff to contest. He would have been left with no house to live during the days of minority. It was because of timely offer made on the part of the plaintiff that the disputed agreement to sell was executed in his favour by plaintiff and from the money paid by him, the decree in favour of Mst. Suggi Devi was satisfied after deposit of the entire decretal amount by Roop Narayan on behalf of the defendant. 15. In equity and also on the basis of pleadings and evidence on record, the plaintiff is entitled to get a decree from the Court for specific performance of contract of sale. He made a bona fide offer in the interest of the defendant which was accepted by the guardian of the defendant, duly appointed by the District Judge and after seeking permission from the District Judge, the guardian executed agreement to sell in favour of plaintiff. He made a bona fide offer in the interest of the defendant which was accepted by the guardian of the defendant, duly appointed by the District Judge and after seeking permission from the District Judge, the guardian executed agreement to sell in favour of plaintiff. The finding of the Lower Appellate Court that the disputed agreement to sell was validly executed by Roop Narayan in favour of plaintiff does not suffers from any infirmity. The plaintiff is fully entitled to enforce the agreement to sell against the defendant, who is the beneficiary of the amount paid by the plaintiff which has protected half share of his house and now it would be highly unjust to permit the defendant to deny the right of the plaintiff to get the sale deed executed in his favour on the basis of agreement to sell dated 01.08.1972. The Lower Appellate Court has considered the findings recorded by the trial court and has recorded the judgment of reversal as per the law. It has taken into account the fact that the order dated 01.08.1972 passed by the learned District Judge on the application of third party Kumar, was not communicated to Roop Narayan when he executed the sale deed dated 01.08.1972. The other restraint orders dated 23.09.1972 and 09.10.1972 were passed on the application of third party after the execution of the agreement to sale dated 01.08.1972 and were passed by the court without information of the execution of the agreement to sale dated 01.08.1972. On equity the plaintiff has a case and, therefore, the discretion vested in Court in the suit filed for a decree of specific performance of contract of sale has rightly been exercised in favour of the plaintiff by lower appellate court and does not calls for any interference. 16. The second appeal fails and is hereby dismissed with costs.