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FazaladdIn Mandal Vs. Panchanan Das - Court Judgment

LegalCrystal Citation
SubjectContract
CourtKolkata High Court
Decided On
Case NumberLetters Patent Appeal No. 3 of 1954
Judge
Reported inAIR1957Cal92
ActsEvidence Act, 1872 - Section 73; ;Contract Act, 1872 - Section 2; ;Specific Relief Act, 1877 - Section 21
AppellantFazaladdIn Mandal
RespondentPanchanan Das
Appellant AdvocateBansorilal Sarkar, Adv.
Respondent AdvocateA.D. Mukherji and ;Tarun Kumar Banerji, Advs.
DispositionAppeal allowed
Excerpt:
- .....known to law. a consideration may also consist in performance --such a consideration is known as executed consideration and is within the definition of consideration in section 2(d), contract act. section 2(d), contract act, is in these words:'when, at the desire of the promisor the promisee or any other person has done or abstained from doing, or promises to do or to abstain from doing, something, such act or abstinence or promise is called a consideration for the promise.'in the present case, it is in my opinion reasonable to hold that the promise was given by the defendant for the 'consideration' that the plaintiff and his brothers had granted him a lease of the land. it is important to remember that the ekrarnama was exe- cuted on the very day on which the potta and the kabuliat.....
Judgment:

K.C. Das Gupta, J.

1. This appeal is against the judgment of Guha J. dismissing in second appeal the plaintiff's suit for specific 'performance. On 26-5-1943, the plaintiff Fazaladdin Mandal and his two brothers gave maurashi lease of .57 acre of land to Panchanan Das, the defendant, on receipt of a selami of Rs. 50/-, the rent reserved being Rs. 3/- per year. The three lessors executed a potta 'in favour of Panchanan while Panchanan in his turn executed on the same day a kabuliat in favour of the three lessors. Both thesedocuments were registered on that very day. The appellant brought this suit on the allegation that simultaneously with the lease there was an agreement between him (Fazaladdin) and Panchanan that if within six years from that date, namely, 26-5-1943, Fazaladdin paid Rs. 50/- to Panchanan, Panchanan would convey the leasehold interest acquired by him' in favour of Fazaladdin; but that in spite of repeated requests to pirn thereafter to convey the leasehold On accepting from him the sum of Rs. 50/-, Panchanan did not accept the money and did not execute the conveyance. The plaintiff asks for a decree for specific performance of contract to execute the conveyance.

2. The defence was twofold. First, it was pleaded that there was no such agreement at all and secondly that the alleged contract was 'without consideration., illegal and not enforceable in law.'

3. The learned Munsif, who tried the suit, believed the story of oral agreement as alleged by the plaintiff and also the plaintiff's case that he offered Es. 50/- to the defendant and that the defendant refused to accept it. He held also that there was nothing to show that the ekrarnama, that is, the written document. Ex. 1, in his written statement and that it was therefore valid and binding. On these findings, he gave the plaintiff a decree for specific performance. The defendant appealed. The main point urged in appeal appears to have been that there was no agreement as alleged. It was pointed out that the defendant had not challenged the genuineness of the document, Ex. 1, his written statement and that it was therefore not open to him to question the genuineness of the document at the' trial. It was argued that as the trial court had relied on the existence of the written ekrarnama in believing the story of the oral agreement, the finding was erroneous. A prayer was made that the case should be remanded to the trial court so that the defendant may have an opportunity of examining an expert about the signature and thumb impression appearing on the document, Ex. 1, The learned Subordinate Judge on consideration of the evidence came to the conclusion that the document, Ex. 1, was genuine. He rejected the prayer for remand of the suit for examination of a handwriting expert. He rejected the further contention that was raised before him that the document, Ex. 1, required registration. On these findings, he dismissed the appeal.

4. It is curious that though the plea was taken that the contract was without consideration, no clear issue on that question was framed. The trial Court noticed the plea and disposed of it by saying that there was nothing to show that there was no consideration. The court of appeal did not deal with this point at all apparently because it was not argued before it. In second appeal, preferred by the defendant, the main contention, however, was that there was no valid contract as there was no consideration for the defendant's promise to convey the leasehold and there was no mutuality. This contention has been accepted as sound by Guha J., who heard the second appeal and he has accordingly dismissed the ' plaintiff's suit. Our learned brother further expressed his view that the learned brother Subordinate Judge should have acceded to the defendant's prayer for sending the case back for taking evidence of a handwriting expert and observed:

'Had I felt that there was no substance in the other contentions put forward before me by Mr. Mukherjee on behalf of the appellant, I would have been inclined to remand the case for allowing the defendant an opportunity to examine a handwriting expert in support of his version that he did not execute the document and that his alleged signature in the document was not genuine.'

With very great respect, I am unable to agree with Guha J., that the learned Subordinate Judge should have acceded to the defendant's prayer. It has to be remembered that the defendant made the prayer for the first time in the appellate court. At the trial, not only the plaintiff but also the scribe of the document deposed on oath that the defendant affixed the signature and thumb impression on this document. The cross-examination had elicited no circumstance that would justify the court in rejecting the, testimony of the scribe. Even then the defendant contented himself with his own denial on oath. The least he could have done was to ask at least at that stage for an opportunity to examine an expert. In my judgment, the learned Subordinate Judge was fully justified, in these circumstances, in rejecting the belated prayer made before him and in considering the evidence on record in coming to a conclusion whether the ekrarnama, Ex. 1, had in fact been executed. I think it proper to mention also that I am unable to agree with the view which found favour with Guha J., that the learned Judge was' wrong in comparing the signature on Ex. 1 with the admitted signature of the defendant on other documents. It is true, if there was no evidence before the court as regards the genuineness of the signature, the court could not, in law, rely on its own examination of the signature to supply the evidence because the learned Judge could not treat himself as an expert. I am unable to find anything in principle or authority which bars the Judge of facts from using his own eyes and looking at the admitted signature along with the disputed signature in deciding whether the evidence that has been given as regards the genuineness of the document should be believed or not;

5. In my judgment, this Court is therefore bound to accept as correct the finding of fact that Ex. 1 was executed by the defendant and that there was in fact an agreement between the plaintiff and the defendant by which the defendant agreed to convey the leasehold if the plaintiff paid a sum of Rs. 50/- within six years.

6. The question remains whether this agreement constituted in law a valid contract. The argument which found favour with Guha J., and has been repeated before us was that while the defendant promised to convey, there was no promise to re-purchase the land by the plaintiff and so there was nc consideration. What is stated by Guha J., to be the further argument that 'the element of mutuality which is an essential ingredient of a contract was lacking' was clearly the same submission, namely, that while there was a promise by the defendant to convey, there was no corresponding promise by the plaintiff. Now, it is clear that there was in this case no promise by the plaintiff that he would within six years tender the money and offer to purchase but that can be no reason for thinking that there was no consideration. In a very large number of contracts, no doubt, a promise of one party is a consideration for the promise of the other party but that by no means is the only kind of consideration known to law. A consideration may also consist in performance --such a consideration is known as executed consideration and is within the definition of consideration in Section 2(d), Contract Act. Section 2(d), Contract Act, is in these words:

'When, at the desire of the promisor the promisee or any other person has done or abstained from doing, or promises to do or to abstain from doing, something, such act or abstinence or promise is called a consideration for the promise.'

In the present case, it is in my opinion reasonable to hold that the promise was given by the defendant for the 'consideration' that the plaintiff and his brothers had granted him a lease of the land. It is important to remember that the ekrarnama was exe- cuted on the very day on which the potta and the kabuliat were executed. Mr. Mukherji tried to convince us that the language of the ekrarnama indicates that the promise to convey had no connection with the granting of the lease. The relevant portion of the ekrarnama can be translated thus;

'On this day you have registered in my favour a maurashi potta for the land described in the schedule on receipt of a selami of. Rs. 50/- and at a rent of Rs. 3/- and I have executed a corresponding kabuliat. Now you having prayed to me for getting back the land, I have agreed to your prayer and promise and undertake by this ekrarnama that if within six years from, this day you pay Rs. 50/- to me, I shall register a saf kobala for the land in your favour.'

Mr. Mukherji has stresssed the use of the word ^^,[[kwus**and the fact that the registration of the potta and kabuliat was mentioned as complete transaction for holding that there was no connection between the granting of the lease and the promise made by the defendant. If it had not been known that the potta and the kabuliat had been executed on the same day, there might have been scope for such an argument, but the fact that the three documents had been executed on the same day taken with the evidence of the plaintiff -- which I believe -- that the talk of the ekrarnama took place 'at home and in the office' on that date compels the conclusion that the act of granting the lease was done by the plaintiff 'at the desire of the promisor' within the meaning of Section 2(d), Contract Act. The only possible conclusion, therefore, is that in the present case there 'was good consideration for the promise by the defendant and there was thus a valid binding contract.

7. On behalf of the defendant, Mr. Mukherji has further contended -- a contention which does not appear to have been raised either before Guha J., or in any of the courts below -- that even though there was a valid contract the court should use its discretion against granting the relief of specific performance inasmuch as there was no 'mutuality' in the sense that it should not have been open to the court' to direct the plaintiff to tender the amount of Rs. 50/- within the period of six years. Where, however, the tender has already been made, there is no reason why the court should refuse the relief of Specific performance. It is helpful to remember in this connection the statement of law in paragraph, 465 of Fry on Specific Performance of Contracts, It is in these words:

'The contract may be of such a nature as to giveto the one party a right to the performance which itdoes not give to the other, -- as for instance, wherea lessor covenants to renew upon the request of hislessee: or where the contract is in the nature of anundertaking. But these are merely cases of conditional contracts: and when the condition has beenperformed, as for instance, in the case above stated,by a request to renew, the contract becomes absoluteand mutual and capable of, enforcement alike byeither party.'

This is also the law in India. In my judgment, thereis no reason why the court should refuse the plaintiff the relief of specific performance.

8. I would, therefore, allow this Letters Patent appeal, set aside the judgment and decree passed by Guha J., and pass the following decree: The suit is decreed on contest. On the plaintiff paying Rs. 50/- to the defendant or depositing the same in the trial court within 45 days from this date, -- if not already deposited -- the defendant to execute a kobala of the suit property in favour of the plaintiff and get it registered within two months from this date, the costs of execution and registration being borne by the plaintiff. In default, provided the plaintiff makes the payment or deposit as above, the kobala will be executed and registered by the trial court for and on behalf of the defendant, the costs of execution and registration being borne by the plaintiff.

9. The appellant before us will get his costs, throughout.

Bachawat, J.

10. On 26-5-1943, the plaintiff and his brothers executed a potta granting a maurashi lease of the land to the defendant on receipt of a selami and the defendant executed a kabuliat undertaking to pay rent to the plaintiff and his brothers. On the same day, the defendant also executed an ekrarnama undertaking to convey and release the defendant's interest in the property to the plaintiff on payment of Rs. 50/- by the plaintiff within six years.

11. The plaintiff offered to pay the sum of Rs. 50/-, within six years from 26-5-1943. The defendant refused to accept the payment. He now contends that the undertaking to convey is without consideration and cannot be enforced.

12. It is clear that the ekrarnama is not a bilateral agreement. It is a unilateral promise by the defendant to convey on payment of Rs. 50/- by the plaintiff. There is no reciprocal promise by the plaintiff and there is no reciprocity of obligations, There is no promise by the plaintiff to buy or to pay the price. Reciprocity of obligations, however, is not of the essence of consideration. Consideration is the price of a promise, a return or quid pro quo, something of value received by the promisee as inducement of the promise. An act done or forbearance made in return for a unilateral promise is a sufficient consideration to support the promise. The evidence on the record clearly shows that there was consideration for the ekrarnama. The potta was executed and accepted as inducement of the ekrarnama and the kabuliat and conversely that the ekramama and the kabuliat were executed and accepted as inducement of the potta. It is beyond doubt that the plaintiff and his brothers would not have executed the potta had not the defendant agreed by the ekrarnama to convey the property. The potta was executed at the desire of the defendant in return for the ekrarnama and the kabuliat-and is in no sense past consideration. A single consideration may support more than one promise and may move from the promisee or any other person.

13. It is next contended that specific performance should not be granted because the contract is not mutual. It is true that to be specifically enforceable a bilateral contract must be mutual, that is, at the date of the contract it must be enlorceable by either party against the other. Equity will not permit a party to enforce a contract where the other party could not enforce it against him. The doctrine has no application to unilateral contracts. A party seeking to enforce such a contract has no outstanding obligation and therefore no question of enforcing the contract against him can arise. Here the contract consists of a unilateral undertaking by the defendant to convey conditionally on payment of Rs. 50/- by the plaintiff within six years. The plaintiff was and is ready and willing to perform the condition. There is no reason why the defendant should not be compelled to perform the contract specifically.

14. By the express 'terms of Section 73, Evidence Act, the court is entitled to compare the disputed signature with the signature proved to be that of the defendant in order to ascertain whether the disputed signature was that of the defendant. The appellate court duly considered all the evidence on record and came to the conclusion that the disputed signature is genuine. I have no doubt' that the finding of the appellate court on this question of fact was correct. The appellate court quite properly rejected the very belated application of the defendant for recording of additional evidence.

15. I concur in the order proposed by my Lord.


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