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Shrikrishna Keshav Kulkarni and ors. Vs. Balaji Ganesh Kulkarni and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Contract
CourtMumbai High Court
Decided On
Case NumberSecond Appeal No. 1091 of 1967
Judge
Reported inAIR1976Bom342; 1976MhLJ224
ActsEvidence Act, 1872 - Sections 91 and 92; Specific Relief Act, 1963 - Sections 12(1); Limitation Act, 1963 - Schedule - Article 54
AppellantShrikrishna Keshav Kulkarni and ors.
RespondentBalaji Ganesh Kulkarni and ors.
Appellant AdvocateS.B. Kotwal and ;M.R. Kotwal, Advs.
Respondent AdvocateJ.G. Pradhan, Adv.
Excerpt:
.....lead evidence to spell out two different agreements in respect of two houses by showing that the houses were separately owned by them on the date of agreement - further, since the contract was one and indivisible, the court could not direct specific performance against one of the defendants alone;b) the case debated on the starting point of limitation in a suit for specific performance under article 54 of the limitation act, 1963 - under the agreement for sale of two ancestral houses jointly held by defendants 1 and 3, the sale was to be executed after the attachment which the creditors had brought was raised - the court held that in the absence of any indication when the attachment would be raised it had to be treated as a case in which no date was fixed for the performance of the..........the plaintiff himself that in about the year 1960 both defendants 1 and 3 had agreed to sell the suit houses to abdul gani . so it cannot be said that on the date of the agreement (ex. 83) the facts that existed were that the two brothers were separate and defendants no. 1 owned house no. 384 and defendant no. 1 owned house no. 383, and therefore , proviso (6) is not attracted and it cannot be said that the language of the document can be explained by way of clarification through oral evidence how that language is related to the existing facts, namely, the two brothers being separate and the two houses being separately owned by them. no question of apply illustration (g) to proviso(6) arises, because the plaintiff has not come forward with any case of an oral agreement in addition to.....
Judgment:

1. The suit giving rise to this second appeal was filed by the appellant, who died during the pendency of this appeal and whose legal representative have been brought on record, for specific performance of a contract of sale (Ex. 83) dated 15th October, 1957. The agreement was executed by defendants 1 and 3, who are brothers. It was in respect of two houses bearing Gram Panchayat Houses Nos. 383 and 384. The consideration for the sale was Rs. 2250/- out of which Rs. 200/- were paid as earnest amount. The houses were under attachment of creditors and the sale deed was to be executed after the attachment was raised. It was the case of the plaintiff that although a single document was executed, it contained two separate agreements, because defendants 1 and 3 were separate and the two houses were separate, defendant No.1 being the owner of house No. 384 and defendant NO. 3 being the owner of House No. 383. The plaintiff was put in possession of the two houses on the date of the agreement.

2. After the agreement was made by defendants 1 and 3 with the plaintiff, they agreed to sell the house to one Abdul Gani and received some amount of consideration by way of earnest money. Later, Abdul Gani brought Small Cause Suit No. 359 of 1960 against defendants 1 and 3 to recover the consideration paid by him. The plaintiff intervened and paid Rs. 250/- to Abdul Gani on behalf of defendants 1 and 3 and the suit was compromised on 14th February, 1961. Thereafter, defendant No. 1 sold House No. 384 to defendant No. 2 on 6th February, 1963 under a registered sale deed (Ex. 96) for a consideration of Rs. 1,200/- On the basis of the sale deed, defendant No. 2 tried to dispossess the plaintiff, which led to proceedings under Section 145 of the Code of Criminal Procedure. The plaintiff had, therefore, filed the present suit on 22nd May, 1964. It was initially filed only against defendant 1 and 2. Defendant No. 3 was not joined. On the trial Court expressing the view that the suit was liable to be dismissed defendant No. 3 who was also a party to the agreement (Ex. 83) , was not joined, the plaintiff joined defendant No. 3, but made him no more than a formal party, and claimed no relief against him. It appears that the plaintiff had filed a separate suit against defendant No. 3, being suit No. 59 of 1964, for specific performance of the agreement in respect of House NO. 383 and he had obtained a decree against defendant No. 3 in that behalf.

3. The trial Court deemed the plaintiff's suit , but it directed the plaintiff to deposit the entire amount of consideration mentioned in EX. 83 and not the proportionate consideration in respect in House No. 384 owned by defendant No.1 which defendant NO. 1 had sold to defendant no. 2. The plaintiff and the defendant NO. 2 both wen in appeal to the District Court, challenging the decree of the trial Court. The District Court dismissed the appeal field by the plaintiff and allowed the appeal filed by defendant No. 2. It set aside the judgment and decree of the trial Court and dismissed the plaintiff's suit for specific performance of the agreement (EX. 83), dated 15th October 1957. This the District Court did for two reasons. The first was that the suit in the present form was not maintainable. The contract (Ex. 83), was one contract so as to claim relief only against defendants 1 and 2 and in respect of House No. 384 without claiming any relief against defendant No. 3 in respect of House No. 383, both of which house were the subject-matter of the contract (Ex. 83). The second ground was that the plaintiff's suit was barred by limitation.

4. Mr. Kotwal on behalf of the appellant has challenged both the findings recorded by the District Court against the appellant and the consequential dismissal of the plaintiff's suit for specific performance.

5. The first point that falls for decision is whether the suit in its present form, namely, to enforce the agreement dated 15th October 1957, (EX.83) in respect of House No. 384, which is only of the two houses in the agreement, is maintainable. Mr. Kowtow does not dispute that under Section 12(1) of the Specific Relief Act, 1963, the specific performance of a part of a contract cannot be granted. Mr. Kowtow also does not dispute that from the document (Ex. 83) itself no two separate agreement in respect of the two Houses Nos. 383 and 384 can be spelled. out. It will be seen from the document that the two brothers, defendants 1 and 3, had agreed to sell their ancestral houses to the plaintiff for a consideration of RS. 2,250/- and had received Rs. 200/- advance from the plaintiff . In the document (Ex. 83) itself there is not indication that the two brothers are separate, that the property agreed to be sold comprises two separate houses and that while defendants No. 1 is the owner of House No. 383. There is also no indication how the amount of Rupees 2,250/- has to be apportioned, if at all , between the two brothers or the two properties. There is further no indication that the amount of Rs. 200/- received by the two brothers was received by them separately and that each had received Rs. 100/- The submission of Mr. Kotwal, single document embodying the agreement, from certain circumstances that are appearing on record it is possible to separate the two agreements embodied in Ex. 83, one made by the plaintiff with defendant No. 1 in respect of House No. 383. Those circumstances are: The two brothers are separate. The two houses are separate house No. 384 belongs to defendant No. 3. Defendant No.1 had alone sold house No. 384 to defendant 2 on 6th February, 1963. The plaintiff Keshav in his deposition at Ex. 82 has stated that he had paid Rs. 200/- at the time of the agreement to defendants 1 and 3, Rupees 100/- each. The consideration was fixed at Rs. 1,125/- each. Mr. Kotwal contended that this evidence of the plaintiff had gone unchallenged. The above evidence and circumstances , according to Mr. Kotwal, have to be taken into account in reading the document (Ex. 83) that there were two separate agreements which the plaintiff had made, one with defendant No. 1 in respect of House No. 384 and the other with defendant No. 3 in respect of house No. 383.

6. As already stated , from the written document (Ex. 83) it is not possible to spell out two separate agreements as submitted by Mr. Kotwal. There is no indication in Ex. 83 that the two brother were separate; that the property agreed to be sold comprised two different houses; that each brother owned one of the two houses; that one had no interest in the other that each brother was to receive Rs. 1,125/- as consideration and that each had received Rs.100/- out of the amount of Rs. 200/- paid by the plaintiff as earnest. It is only through oral evidence that Mr. Kotwal is trying to show that the documents Ex. 83 embodied two separate agreements, but such kind of oral evidence is barred under Section 91 and 92 of the Evidence Act, Section 91 provides.:--

:'When the terms of a contract or of a grant or of any other disposition of property, have been reduced to the form of a document, and in all cases in which any matter is required by law to be reduced to the form of a document no evidence shall be given in proof of the terms of such contract, grant or other disposition of property, or of such matter, except the document itself, or secondary evidence of its contents in cases in which secondary evidence is admissible under the provisions hereinbefore contained'

Section 92 provides:--

'When the terms of any such contract, grant or other disposition of property, or any matter required by law to be reduced to the form of a document, have been proved according to the last section, no evidence of any oral agreement or statement shall be admitted, as between the parties to any such instrument or other representatives in interest, for , the purpose of contradicting, varying terms'. Mr. Kotwal, however, relied upon the second third and sixth provisos to Section 92 and illustration (g) to proviso (6) to show that oral evidence was admissible to show that what were embodied in the document (Ex.83) were two separate agreements one between the plaintiff and defendant No. 1 in respect of house No. 384 and the other between the plaintiff and defendant No. 3 in respect of house NO. 383. Proviso (2) reads as under :--

'Proviso (2):-- The existence of any separate oral agreement as to any matter on which a document is silent, and which is not inconsistent with its terms, may be proved. In considering whether or not this proviso applies, the Court shall have regard to the degree of a formality of the document'.

Proviso(6) reads as under:--

Proviso (6) -- Any fact may be proved which shows in what manner the language of a document is related to

existing facts'.

Illustration (g) is as under :--

'(g) A sells B a horse and verbally warrants him sound. A gives B a paper in these words: Bought of A a horse for Rs. 500/- B may prove the verbal warranty'

Proviso(2) and proviso(3) are clearly inapplicable, because the plaintiff had not pleaded any separate oral agreement and it was for the first time in his evidence that the plaintiff tried to contend that out of the consideration of Rs. 2,250/- defendant No. 1 and defendant No.3 were to be paid Rs. 1,125/- each and each of them was paid Rs. 100/- from the earnest amount of RS. 200/- That kind of evidence could not be looked into without the plaintiff having pleaded any separate oral agreement. Proviso 6 and illustration (g) also cannot help the appellant. The language of Ex. 83 clearly shows that the two brothers, who jointly owned their ancestral property, had agreed to sell it to the plaintiff for a consideration of Rs. 2,250/- and they together had received Rs. 200/- as advance consideration. One does not know if and when the two houses had been divided between them. The plaintiff in his evidence throws no light on these matters. The only circumstance relied up by Mr. Kotwal was the conduct of defendant No. 1 in selling House No. 384 to defendant No. 2 on 6th February , 1963, vide the registered sale deed (EX. 96). But that was in the year 1963 and from this circumstances it cannot be inferred that on 15th October 1957 , when the agreement (Ex. 83) was brought into existence, the two brothers were separate and while defendant No. 1 owned house No. 384 , defendant No. 3 owned House No. 383. In fact, it is the case of the plaintiff himself that in about the year 1960 both defendants 1 and 3 had agreed to sell the suit houses to Abdul Gani . So it cannot be said that on the date of the agreement (Ex. 83) the facts that existed were that the two brothers were separate and defendants No. 1 owned House No. 384 and defendant No. 1 owned House no. 383, and therefore , proviso (6) is not attracted and it cannot be said that the language of the document can be explained by way of clarification through oral evidence how that language is related to the existing facts, namely, the two brothers being separate and the two houses being separately owned by them. No question of apply illustration (g) to proviso(6) arises, because the plaintiff has not come forward with any case of an oral agreement in addition to the written agreement(Ex. 83)

7. Not only, therefore, the document (Ex. 83() containing the contract is one but from the language of the document also it is not possible to spell out two separate agreements. The contract evidenced by Ex. 83 being thus one, it is not possible for the Courts to direct specific performance of a part of the contract, inasmuch as the plaintiff was trying to enforce the contract on any in respect of House No. 384 against defendant No.1 when the contract was in respect of House No. 383 also and it was between defendants 1 and 3 and the plaintiff. Section 12(1) of the Specific Relief Act 1963. would operate as a bar to this being done.

8. Mr. Kotwal submitted that the finding recorded by the lower appellate Court that the suit in its present form is not maintainable is not correct, because the plaintiff had subsequently joined defendant No. 3. But that argument will not serve the purpose, because the plaintiff was not claiming any relief against defendant No. 3 in respect of House No. 383, which was a part of the proportion comprised in the contract. Mr. Kotwal , submitted that the plaintiff could not claim any relief against defendant NO. 3 inasmuch as he had already filed a separate suit against defendant No. 3 for specific performance of the agreement in respect of House No. 383 and had obtained a decree in that suit. But for this situation, the plaintiff has to thank himself. The present suit bearing No. 44 of 1964 appears to be earlier in point of time than Suit No. 59 of 1964 filed by the plaintiff against defendant No. 3. It is not know why the plaintiff had chosen to file a separate suit against defendant No. 3 and had not chosen to join defendant No.3 and had not chose to join defendant No. 3 in his very first suit. Merely because the plaintiff finds it difficult to claim a relief against defendant No. 3 in this suit, he cannot get over the hurdle that the suit for specific performance of a part of the contract cannot be decreed. The suit as framed is, therefore, liable to be dismissed.

9. The second point that falls for decision is whether the suit of the plaintiff is within limitation. As already noted, the suit contract was made on 15th October, 1957. The suit was filed on 22nd May , 1964. Article 54 of the Limitation Act, 1963 provides for limitation of three years for a suit for specific performance of a contract. The starting point for limitation is. The date fixed for the performance or, if no such date to fixed, when the plaintiff has notice that performance is refused' . Under the agreement (Ex. 83), the sale deed was to be executed after the attachment which the creditors had brought was raised. The lower appellate Court has rightly pointed out that the date of the raising of the attachment not being clear from the document, it could not be found out as to what could be the date fixed for the performance of the contract. Surprisingly, the Court held that the starting point of limitation would be 15th October, 1957, which was the date of the agreement. That, however, does not appear to be the correct position in law. The starting point of limitation, as already noted, was the date fixed for performance of the contract, or , if no such date is fixed, the date on which the plaintiff has notice that performance is refused. In the absence of any indication when the attachment would be raised and what would be the date for the performance of the agreement, which was after the attachment was raised, it had to be treated as a case in which no date was fixed for the performance of the contract. To such a case, the starting point of limitation is when the plaintiff has notice that performance is refused. In the instant case, it was when defendant No. 1 sold house No. 384 to defendant No. 2 on 6th February , 1963, under the registered sale deed (Ex. 83) that the plaintiff could be posted with the knowledge that the defendants were refusing performance of the contract. The suit was filed on 22nd May, 1964 that is, well within three years from 6th February, 1963 and would be within limitation.

10. Mr. Pradhan for respondent No.2, however, drew my attention to the allegations in the plaint wherein it was stated that defendant 1 and 3 had agreed to sell the suit houses to Abdul Gani in the year 1960. Mr Pradhan has argued that the plaintiff had knowledge in the year 1960 itself the defendants 1 and 3 were refusing performance of the contract and the suit having been filed more than three years after 1960, it is barred by limitation. It is true that in the plaint it has been stated that the agreement to sell to Abdul Gani was in respect of the suit houses, but that appears to be an incorrect statement. Ex. 88 is the true certified copy of the decree in Small Causes Suit No. 359 of 1960 and it shows that the house agreed to be sold by defendants 1 and 3 to Abdul Gani was house No. 378/1 which was altogether a different house. By defendants 1 and 3 agreeing to sell some other house to Abdul Gani would not, therefore, amount to defendants 1 and 3 refusing performance of the suit contract. The limitation for the present suit could not thus start in the year 1960 when defendant 1 and 3 had agreed to sell some other house to Abdul Gani.

11. The suit of the plaintiff would, therefore, , be in time but in view of the fact that he cannot get a decree for specific performance of only a part of the contract, his suit is liable to be dismissed. The decree passed by the lower appellate Court is, therefore, correct and this appeal must fail.

12. In the result, the appeal is dismissed with costs.

13. Appeal dismissed.


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