Barman, Ag. C.J.
1. This appeal filed by the defendant arises out of a suit filed by the plaintiff-purchaser for specific performance of a contract for sale of a suit house in Berhampur (Ganjam) town under an agreement by which the defendant agreed to sell the suit house to the plaintiff for consideration on the terms and conditions as mentioned in the said agreement. The plaintiff-purchaser's suit for specific performance was decreed in her favour. Hence this appeal by the defendant-vendor. The facts and circumstances in which the parties came to be involved in the litigation over the suit house are as hereinafter stated.
2. The plaintiff Srimati KamaJa Devi and the wife of the defendant, Khali Panigrahi are stated to be intimate friends. It is said that the plaintiff approached the defendant a contractor, for construction of a house for the plaintiff and members of her family; that the defendant purchased Ac. 0.05 cents of land in ward No. 24 of Berhampur Municipality being house No. 392 adjacent to Komapalli Crossing in Court area and constructed a pucca house on the said site. After construction the defendant put the plaintiff in possession of the suit house in January 1955. The plaintiff and the members of her family are said to have been residing in the said house since then. It is said that the plaintiff's family were staying in the house as defendant'stenants; the defendant also employed the plaintiff's husband in writing accounts of the defendant's contract business.
3. On December 6, 1960 there was an agreement between the plaintiff and the defendant under which the defendant agreed to sell the suit house to the plaintiff for a consideration of Rs. 7000. The plaintiff's case is that on the same date she paid in cash a sum of Rupees 3000 towards the purchase money. The sequence in which the parties were to perform their respective part of the contract for sale of the suit house was this. The defendant-vendor was to execute and register a sale deed within two months from the date of the agreement, that is to say within February 6, 1961. After execution by the defendant-vendor of the sale deed, the plaintiff purchaser was to clear the mortgage loan of Rs. 1500 with interest due to Urban Bank Ltd. Thereafter, the plaintiff purchaser was to pay the balance consideration money by instalments (Dafa Dafa). There were default clauses in the agreement, namely, that if the defendant-vendor failed to execute the sale deed within two months, that is to say, within February 6, 1961, the plaintiff-purchaser would be entitled to get Rs. 300 as compensation and would be entitled to enforce execution of the contract for sale of the suit house.
On the other hand, it was also provided that if the plaintiff-purchaser was unable or unwilling to purchase the suit house in spite of the defendant-vendor's willingness to sell as agreed, the defendant-vendor could compel the plaintiff-purchaser to purchase the suit house on the aforesaid terms and also to pay Rs. 300 as compensation to the defendant vendor.
4. Admittedly, the sale was not completed within two months in terms of the contract. On March 8, 1961 the plaintiff-purchaser is alleged to have paid a sum of Rs. 2500 as appears from the receipt Ext. 2 granted by the defendant in favour of the plaintiff; the receipt purports to show the payment of the balance amount which however, under the agreement was to be paid in instalments (Dafa dafa). On January 3, 1962 the plaintiff without prior notice, filed the suit against the defendant for specific performance of the contract for sale.
5. The defence of the defendant-vendor to the plaintiff's suit for specific performance was in substance this: The suit house was joint family property of the defendant and his five sons of whom two were minors; thus, the defendant had only l/6th share in the suit house; the defendant therefore could not validly transfer the suit property because it was joint family property in which his five sons had 5/6th interest; the sale deed could not be executed by the defendant because the plaintiff wanted the sale deed to be executed by the defendant for himself and for his minor sons and also by his major sons; thus the plaintiff demanded or insisted the defendants sons to join the sale deed which was not within the terms of the contract; the plaintiff was also not entitled to specific performance on the ground of delay which, according to the defendant, was not explained; delay of more than ten months amounted to abandonment of the contract. It was also pleaded in defence that the plaintiff and her husband played fraud on the defendant in getting the agreement for sale executed by him.
6. The trial court decreed the suit in favour of the plaintiff on the finding that the agreement for sale was true, genuine and valid and for consideration; that there was no fraud as alleged in getting the agreement executed by the defendant. The trial court also found that the suit house was the self-acquired property of the defendant.
7. The question is: Had the defendant alone any right to sell the suit house to the plaintiff:? The evidence of the plaintiff's husband P. W. 5 is that on enquiry he came to know that the defendant and his sons mortgaged the suit house to the Urban Bank and got the loan from the bank. The evidence of the scribe of the agreement, P. W. 2, who is a petition writer shows that the plaintiff was aware of the joint interest of the defendant and his sons in the suit house. This position is further confirmed by the witnesses for the defendant in that D. W. 3 a workman under the defendant said that he (D. W. 3) had seen the suit house; it belongs to the defendant and his family members; the defendant is joint with his five sons who also did contract work with their father.
The evidence of the defendant himself (D. W. 4) is that the suit house is the joint family property; the defendant along with his sons had mortgaged the suit house with the Urban Bank; he had no authority to execute the agreement for sale which was obtained from him under undue influence as pressed by the plaintiff's husband. In the ultimate analysis therefore it is clear that the defendant had executed the agreement Ext. 1 in his individual capacity and not in his representative capacity; there is nothing to show that the defendant executed the agreement as Karta of the family.
8. Then the question is: In such circumstances when the defendant had only l/6th share in the suit house can the Court direct the specific performance by the defendant alone, of such a contract? In our opinion, having regard to Section 17, read with Sections 14, 15 and 16 of the Specific Relief Act, 1877, in such a case the court shall not direct specific performance of such a contract. In the present case, the defendant's sons including two minors having 5/6th share in the suit house were not parties to the agreement nor have they been made parties to the suit.
9. In order to be entitled to specific performance as an equitable relief one has to come to court with clean hands. The appellant-defendant drew the attention of this Court to certain suspicious features of the receipt dated March 8, 1961, for Rs. 2,500 (Ext. 2). The plaintiff's case, as stated by her in court as P. W. 1, is that within one month from the date of the agreement the defendant took Rs. 1,000, again 10 or 15 days thereafter the defendant took another sum of Rupees 1,000 and again thereafter on March 8, 1961, he took Rupees 500 from the plaintiff and gave the plaintiff a receipt for Rs. 2500 which was scribed by the plaintiff's husband. The defendant however denied having received any portion of the said sum of Rs. 2500 as alleged by the plaintiff. The defendant's evidence, as D. W. 4, is to the effect that he had not received any consideration under the receipt Ext. 2; the contents of Ext. 2 were not written by the time the defendant put his signature on it; in connection with the defendant's contract work, the defendant had given the plaintiffs husband blank papers with his (defendant's) signatures and also blank papers with revenue stamps affixed to them and his signatures on the same; the plaintiffs husband who used to do contract work on behalf of the defendant used to make use of these papers in connection with the contract work. The suggestion was that the plaintiff's husband used one of such blank papers bearing defendant's signatures for making out the receipt Ext. 2 which therefore was not genuine.
10. The significant circumstances which make the alleged receipt Ext. 2 suspicious are these: The receipt was scribed by the plaintiffs husband although the defendant himself, a contractor, is literate. The net balance which was payable under the agreement after clearing the mortgage dues to the Bank could not have been calculated or arrived at Rs. 2, 500 until the amount due to the Bank with interest was first ascertained, the total consideration was Rs. 7,000 out of which Rs. 3,000 is said to have been paid in cash; so, under the agreement the remaining Rs. 4000 was to be adjusted first by clearing the dues of the Bank and thereafter the net balance was to be paid in instalments.
Besides, it is also significant that there were no separate receipts for the sums alleged to have been paid by the plaintiff from time to time in instalments, namely, Rs. 1000 within a month from the date of the agreement, another sum of Rs. 1000 within fifteen days thereafter, and Rs. 500 on March 8, 1961 on which date the receipt Ext. 2 is said to have been given by the defendant; this receipt for the lump of Rs. 2500 for the alleged three payments made on three different dates naturally raises suspicion about the genuineness of the payments alleged to have been made by the plaintiff. That apart, under the contract the balance was agreed to be paid in instalments (Dafa Dafa) purporting to show that the plaintiff was financially incapable of paying the amount at a time; it is not understandable how within a short time after the agreement she could make payment of Rs. 1000 within a month from the date of the agreement, another sum of Rs. 1000 within fifteen days thereafter, and then finally Rs. 500 on March 8, 1961. It can be reasonably inferred from these circumstances that the plaintiff's alleged claim that she paid Rs. 2500 is not genuine. So, in view of the finding that the receipt Ext. 2 on which the plaintiff relies is not genuine, the plaintiff is not entitled to the equitable relief of specific performance because one to be entitled to such relief, must come to court with clean hands.
11. The further question is: Did the plaintiff pay Rs. 3000 in advance (Agrim) towards consideration for the purchase of the suit houseas recited in the agreement Ext. IP it was contended on behalf of the defendant that the agreement for sale Ext. 1 was obtained from Mm under undue influence. The defendant's (D. W. 4's) evidence is to the effect that he had good feelings with the plaintiff and her husband. The plaintiffs husband was employed by the defendant for writing accounts in his contract work and thus the plaintiff's husband was in a position of confidence of the defendant. The plaintiff's husband used to look after the defendant's contract work and the defendant used to give blank papers or stamped blank papers containing defendant's signatures to be utilised in his contract work. The defendant said that he had no authority to execute the agreement Ext. 1 but having been pressed by the plaintiff's husband he executed the same.
12. It is difficult to accept the defendant's story of alleged undue influence. In the written statement there is no specific allegation of undue influence on the defendant by the plaintiff's husband. It is clearly recited in the agreement Ext. 1 that the defendant had received in advance (Agrim) Rs. 3000 as consideration for purchase of the suit house. The scribe, a petition writer, P. W. 2, in his evidence stated that he read over the deed of agreement before the defendant who signed in his presence, the witnesses also signed in his presence. P. W. 2 said that the plaintiff paid Rs. 3000 on the day the deed of agreement was scribed and executed. It is clear from the evidence that the plaintiff paid Rs. 3000 to the defendant as recited in the agreement Ext. 1.
13. Lastly, the question is: In the circumstances, is the plaintiff entitled to get refund of the said sum of Rs. 3000? In this suit For specific performance, there is no prayer for any alternative relief. Therefore, the question arises whether in the absence of such alternative case in the plaint, it is open to the Court to give to the plaintiff relief on this basis. The rule undoubtedly is that a court cannot grant relief to the plaintiff on a case for which there was no foundation in the pleadings and which the other side was not called upon or had an opportunity to meet. But, in view of the finding that the plaintiff paid Rs. 3000 as recited in the agreement Ext. 1, which is found to be genuine, the plaintiff is entitled to get refund of the said sum of Rs. 3000 although no such alternative claim was made in the plaint. This view is supported by the Supreme Court on the ground that although no such alternative prayer was made in the plaint, the defendant could not be prejudiced by such a claim at all and the matter ought not to be left to a separate suit. In such circumstances, when no injustice can possibly result to the defendant, it may not be proper to drive the plaintiff to a separate suit: Firm Sriniwas Ram Kumar v. Mahabir Prasad, AIR 1951 SC 177 (.179).
14. Apparently the attention of the learned trial court was not drawn to these aspects of the case as discussed above with the result that his decision is based on a reasoning which is not supported by the facts and circumstances of the case as appear from the evidence on record.
15. In this view of the case the decision of the learned trial court is set aside. The plaintiff's suit for specific performance is dismissed. The plaintiff is however entitled to get refund from the defendant of the sum of Rs. 3000 with interest at the rate of 6 per cent per annum from the date of advance i.e. 6-12-1960 till the date of realisation, and shall be entitled to a decree to that extent only. This first appeal is accordingly allowed in part; each party will bear hit own costs throughout.
16. I agree.