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2018 DIGILAW 272 (ORI)

Binodini Panigrahi v. Bandhu Munda

2018-03-19

A.K.RATH

body2018
JUDGMENT : A.K. RATH, J. Plaintiff is the appellant against a reversing judgment in a suit for specific performance of contract. 2. Case of the plaintiff was that defendant no.1 was the owner of the suit schedule property. To press his legal necessity, defendant no.1 approached her in the year 1986 to sell the land. She agreed to the same. Accordingly consideration was fixed at Rs.16,000/-. Since the defendant no.1 belonged to scheduled tribe and she is brahmin by caste, the defendant no.1 filed O.L.R. Case No.52/86 before the Revenue Officer, Sadar Sub-Division, Sambalpur under Sec.22 of the Orissa Land Reforms Act (“O.L.R. Act”) for transfer of the suit land. Since defendant no.1 was in need of money to repair his house, he approached the plaintiff for advance payment of Rs.3000/-. She paid an amount of Rs.3000/-towards advance to the defendant no.1 on 19.5.1987. On the same day, the defendant no.1 executed an agreement to sell in her favour. He agreed to execute a registered sale deed within a month of receipt of the permission from the competent authority and on receipt of the balance payment of Rs.13,000/-. The Revenue Officer accorded permission on 29.8.1987. She approached the defendant no.1 for execution of the sale deed on receipt of balance consideration amount. But then, the defendant no.1 maintained a sphinx like silence. Thereafter, she sent notice on 24.7.90 to the defendant no.1 for execution of the registered sale deed. Defendant no.1 replied that he had returned the advance amount of Rs.3000/-to her husband in presence of the defendant nos.2 and 3 because she did not like to purchase the suit schedule land. It was further pleaded that she was ready and willing to perform her part of contract. With this factual scenario, she instituted the suit seeking the reliefs mentioned supra. 3. The defendant no.1 filed a written statement contending inter alia that husband of the plaintiff approached him to purchase a piece of land. The suit land belonged to him and his co-sharers. He, being one of the co-sharers, applied permission for transfer of the suit land and other lands in favour of the plaintiff and others. He had received an advance amount of Rs.3000/-. He had not executed the deed of agreement to sell. The suit land belonged to him and his co-sharers. He, being one of the co-sharers, applied permission for transfer of the suit land and other lands in favour of the plaintiff and others. He had received an advance amount of Rs.3000/-. He had not executed the deed of agreement to sell. After the Revenue Officer accorded permission, the plaintiff did not like to purchase the suit land and suggested to sell the land to defendant no.3. He filed a petition to amend the order of permission and substitute the name of defendant no.3 in place of plaintiff. Thereafter he refunded the amount received towards advance to the plaintiff. It was further pleaded that he put his signature in good faith on a blank paper. After refund of money, he wanted to take back the stamp paper. But the plaintiff surreptitiously converted the same into an agreement to sell. The agreement to sell is forged and fabricated. 4. Stemming on the pleadings of the parties, learned trial court struck nine issues. Parties led evidence, oral and documentary, to substantiate their respective cases. Learned trial court came to hold that the defendant no.1 had executed an agreement to sell, Ext.1, and agreed to sell the land for a consideration of Rs.16,000/-. He had received an amount of Rs.3000/-towards advance. Plaintiff was/is willing to perform her part of contract, but defendant no.1 failed to perform his part of contract. Held so, it decreed the suit. Feeling aggrieved, the defendant no.1 filed T.A. No.19 of 1998 before the learned District Judge, Sambalpur. Learned appellate court came to hold that the suit land is the joint family property of defendant no.1. Defendant no.1 has no exclusive saleable interest. Specific performance may not be decreed, where the person agreeing to transfer the joint family property is a mere coparcener and where the transfer would not pass the interests of the other coparceners. A single member of the joint family cannot transfer the joint family property, unless he is karta or manager of family transferring the land for legal necessity of the joint family. The other co-sharers are not parties to the suit. The suit is bad for non-impleadment of other co-sharers. Under Sec.20 of the Specific Relief Act, the jurisdiction to decree specific performance is discretionary. The other co-sharers are not parties to the suit. The suit is bad for non-impleadment of other co-sharers. Under Sec.20 of the Specific Relief Act, the jurisdiction to decree specific performance is discretionary. Held so, it set aside the judgment and decree of the learned court below and directed the defendant no.1 to refund the advance amount of Rs.3000/-to the plaintiff with 12% simple interest thereon from the date of advance till the date of payment. 5. The second appeal was admitted on the substantial question of law enumerated in ground no.1 of the memorandum of appeal. The same is: “Whether the learned lower appellate court committed serious illegality in setting aside the relief of specific performance in directing refund of consideration money and if the present case comes under the purview of Sec.12(3) of the Specific Relief Act ? ” 6. Heard Mr. Bitas Kumar Swain, learned counsel, on behalf of Mr. N.C. Pati, learned counsel for the appellant and Mr. Satyabrata Udgata, learned counsel, on behalf of Mr. Sanjeev Udgata, learned counsel for respondent no.1. 7. Mr. Swain, learned counsel for the appellant, submitted that the suit property is the joint family property of defendant no.1. In the agreement to sell, Ext.1, defendant no.1 stated that other co-sharers had not objected the sale of land to different persons after the permission obtained from the competent authority. Defendant no.1 had sold some of the lands to 24 persons. Thus he is precluded from taking the plea that since the other co-sharers are there, the suit is not maintainable. According to him, the plaintiff was/is ready and willing to perform her part of contract, but defendant no.1 did not perform his part of contract. Learned trial court on an analysis of evidence on record and pleadings decreed the suit. But then, the learned appellate court reversed the judgment and decree of the learned trial court and directed the defendant no.1 to refund the advance money on untenable and unsupportable grounds. He further contended that when there are other co-sharers and one of the co-sharers had entered into the agreement to sell, the sale can be made in respect of his share only. 8. Per contra, Mr. Udgata, learned counsel for the respondent no.1, submitted that the suit property is the joint family property of defendant no.1. He further contended that when there are other co-sharers and one of the co-sharers had entered into the agreement to sell, the sale can be made in respect of his share only. 8. Per contra, Mr. Udgata, learned counsel for the respondent no.1, submitted that the suit property is the joint family property of defendant no.1. He is neither the recorded raiyat/owner in respect of the suit schedule land nor the manager or karta of the family to deal with the joint family property for legal necessity. Thus he has no exclusive saleable interest. The other co-sharers have been impleaded as parties to the suit. The suit is not maintainable. He relied on the decision of the apex Court in the case of Balmukand vs. Kamla Wati and others, AIR 1964 SC 1385 and this Court in the cases of Hati Pratihari and another vs. Alekh Mohapatra and others, AIR 1954 Ori.136 and Khali Panigrahi vs. Kamala Devi, AIR 1967 Ori.100. 9. Before delving deep into the matter, it is apt to refer the decisions cited at the Bar. In Hati Pratihari (supra), this Court held that the undivided interest of a coparcener of a joint Mitakshara family under the school to which Orissa State belongs cannot be the subject matter of alienation, be it for consideration or gratuitous. The plaintiffs in the suit for specific performance of contract for sale cannot obtain a decree for specific performance of contract to sell an undivided interest of a coparcener. 10. In Khali Panigrahi (supra), the house belongs to the joint Hindu family. Father agreed to sell the same and executed a contract for sale. He had only 1/6th share in the property. This Court held that he had executed the agreement in his individual capacity and not in his representative capacity. There is nothing to show that he had executed the agreement as Karta of the family. Since he had only 1/6th share in the suit house, this Court refused to grant specific performance of contract and directed to refund the funds advanced with interest from the date of advance till the date of realisation. 11. Much water has flown beneath the bridge. Law has undergone a sea change. An identical matter came up consideration before the apex Court in the case of Kammana Sambamurthy (deceased by L.Rs.) vs. Kalipatnapu Atchutamma (deceased by L.R.) and others, AIR 2011 SC 103 . 11. Much water has flown beneath the bridge. Law has undergone a sea change. An identical matter came up consideration before the apex Court in the case of Kammana Sambamurthy (deceased by L.Rs.) vs. Kalipatnapu Atchutamma (deceased by L.R.) and others, AIR 2011 SC 103 . The question arose before the apex Court as to whether the agreement could be enforced against the vendor to the extent of his half share in the property. The apex Court held thus: 21. Section 12 prohibits specific performance of a part of a contract except in the circumstances under sub-sections (2), (3) and (4). The circumstances mentioned in these sub-sections are exhaustive. Is Section 12 attracted in the facts and circumstances of the present case? We do not think so. The present case is not a case of the performance of a part of the contract but the whole of the contract insofar as the vendor is concerned since he had agreed to sell the property in its entirety but it later turned out that vendor had only half share in the property and his wife held the remaining half. The agreement is binding on the vendor as it is without being fractured. As regards him, there is neither segregation or separation of contract nor creation of a new contract. In Kartar Singh v. Harjinder Singh & Ors., this Court was concerned with a case where vendor--brother and a sister had each half share in the suit properties. The agreement for the sale was executed by the brother concerning the suit properties in which the sister had half share. The sister was not executant to the agreement; rather she refused to accept the agreement. The question for consideration before this Court was whether agreement could be enforced against the vendor--brother to the extent of his half share. This Court considered Section 12 and held as under: "5. We are, therefore, of the view that this is not a case which is covered by Section 12 of the Act. It is clear from Section 12 that it relates to the specific performance of a part of a contract. The present is not a case of the performance of a part of the contract but of the whole of the contract so far as the contracting party, namely, the respondent is concerned. Under the agreement, he had contracted to sell whole of his property. The present is not a case of the performance of a part of the contract but of the whole of the contract so far as the contracting party, namely, the respondent is concerned. Under the agreement, he had contracted to sell whole of his property. The two contracts, viz. for the sale of his share and of his sister's share were separate and were severable from each other although they were incorporated in one agreement. In fact, there was no contract between the appellant and the respondent's sister and the only valid contract was with respondent in respect of his share in the property. 6. As regards the difficulty pointed out by the High Court, namely, that the decree of specific performance cannot be granted since the property will have to be partitioned, we are of the view that this is not a legal difficulty. Whenever a share in the property is sold the vendee has a right to apply for the partition of the property and get the share demarcated. We also do not see any difficulty in granting specific performance merely because the properties are scattered at different places. There is no law that the properties to be sold must be situated at one place. As regards the apportionment of consideration, since admittedly the appellant and respondent's sister each have half share in the properties, the consideration can easily be reduced by 50 per cent which is what the first appellate court has rightly done." 22. Kartar Singh ( AIR 1990 SC 854 ) has been followed by this Court in Manzoor Ahmed Magray v. Ghulam Hassan Aram & Ors. In Manzoor Ahmed Magray, this Court considered the matter in the context of Section 15 of J & K Specific Relief Act, 1977 which is pari materia to Section 12 of Specific Relief Act, 1963. This Court said : ".......Hence, there is no bar for passing the decree for specific relief with regard to 1/3rd or 2/3rds share owned by the contracting party for which he can execute the sale deed. For the share of Ghulam Rasool (brother of Defendant 1) admittedly, no decree is passed by the High Court. This Court said : ".......Hence, there is no bar for passing the decree for specific relief with regard to 1/3rd or 2/3rds share owned by the contracting party for which he can execute the sale deed. For the share of Ghulam Rasool (brother of Defendant 1) admittedly, no decree is passed by the High Court. Dealing with the similar contention where agreement was for sale of property belonging to a brother and sister each having a half share, the Court in Kartar Singh v. Harjinder Singh held 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 and his property is identifiable by specific share. The Court further held that such case is not covered by Section 12 of the Specific Relief Act, 1963 which relates to specific performance of a part of a contract. Such type of case would be the case of specific performance of the whole of the contract so far as the contracting party is concerned. Further, whenever a share in the property is sold the vendee has the right to apply for the partition of the property and get the share demarcated. Hence there would not be any difficulty in granting specific performance of the contract to the extent to which it is binding between the parties." 23. In the case of A. Abdul Rashid Khan (Dead) & Ors. v. P.A.K.A. Shahul Hamid & Ors., this Court held that even where any property is held jointly and once any party to the contract has agreed to sell such joint property by agreement, then, even if the other co-sharer has not joined, at least to the extent of his share, the party to the contract is bound to execute the sale deed. In that case, the suit property originally belonged to one Aziz Khan. On his death, his heirs under the Muslim law--nine sons and two daughters inherited that property. The sons agreed to sell that property to the first respondent therein. However, some dispute arose between the parties and that necessitated the first respondent therein to file the suit for specific performance in which the executants of the agreement as well as the two daughters of Aziz Khan were impleaded as defendants. The sons agreed to sell that property to the first respondent therein. However, some dispute arose between the parties and that necessitated the first respondent therein to file the suit for specific performance in which the executants of the agreement as well as the two daughters of Aziz Khan were impleaded as defendants. It was admitted case that the daughters of Aziz Khan had not joined in the agreement of sale. The trial court dismissed the suit by holding that the agreement was indivisible and could only be enforced if the daughters of Aziz Khan agreed. The first respondent therein preferred an appeal before the High Court against the judgment and decree of the trial court. The High Court held that he had not pleaded and proved that the daughters of Aziz Khan had agreed to sell the suit property and hence, it cannot be held that the said agreement was by all the heirs of Aziz Khan. The two daughters of Aziz Khan were held not bound by the agreement. However, the High Court held that insofar as the executants of the agreement (sons of Aziz Khan) were concerned they were bound by it and valid and enforceable contract existed between the first respondent and the sons of Aziz Khan. The High Court, accordingly, granted decree for specific performance to the extent of 5/6th shares which Aziz Khan's sons had in the property. This Court affirmed the decree of the High Court and it was held that plaintiff's suit for specific performance to the extent of 5/6th share was rightly decreed by the High Court warranting no interference. While holding so, this Court relied upon earlier decision in the case of Manzoor Ahmed Magray ( AIR 2000 SC 191 : 1999 AIR SCW 4283).” 12. In Balmukand (supra), the apex Court held that the courts below were right in dismissing the suit for specific performance. Granting specific performance is always in the discretion of the court. 13. Learned appellate court on a vivid analysis came to hold that P.W.2, who was the advocate and scribe of Ext.1 admitted that the specification of the suit land as mentioned under schedule-A of Ext.1 was not in the same stroke of typing, the specifications have been typed in dark ribbon, whereas the other contents of the deed are typed out in light ribbon. The properties mentioned under schedule-A of Ext.1 were subsequent incorporations after the body of the deed was typed. It might be a fact that certain space was let out to type out the schedule of the properties after giving the heading “Schedule-A” and the specification of the land along with the manuscript handwriting were subsequently incorporated, might be after the permission was obtained. Therefore, Ext.1 does not appear on the face of it as genuine. It further held that notwithstanding the fact that Ext.1 does not appear to be genuine, the appellant having admitted in evidence that there was an agreement for sale and he has received an advance of Rs.3000/-which has not been refunded to the plaintiff, it cannot be said that there was no agreement between the plaintiff and defendant no.1 to sell the suit property. Held so, it directed the defendant no.1 to refund the advance amount of Rs.3000/-to the plaintiff with 12% simple interest thereon from the date of advance till the date of payment. There is no perversity or illegality in the said findings. 14. On the anvil of the decisions cited supra, the instant case may be examined. On a cursory perusal of the agreement to sell, Ext.1, it is evident that there is lot of interpolation. Agreement to sell has been typed in a stamp paper. As it appears, the properties described in schedule ‘A’ have been typed in different ribbon and different ink. In the schedule ‘A’, some of the properties have also been inserted to subsequently by way of handwriting. There is no endorsement to that effect. The plaintiff approached the court with a pair of unclean hands. She is not entitled to the discretionary relief. The substantial question of law has been answered accordingly. 15. In the wake of aforesaid, the appeal sans merit, deserves dismissal. Accordingly, the same is dismissed. There shall be no order as to costs.