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Sriman Prabahan Mitra Vs. Sm. Madhuri Mitra and ors. - Court Judgment

LegalCrystal Citation
SubjectContract;Property
CourtKolkata High Court
Decided On
Case NumberF.A. Nos. 30 and 169 of 1983
Judge
Reported inAIR1985Cal368
ActsSuccession Act, 1925 - Section 147; ;Transfer of Property Act, 1882 - Section 6; ;Urban Land (Ceiling and Regulation) Act, 1976; ;Hindu Minority and Guardianship Act - Section 8; ;Specific Relief Act, 1963 - Section 16
AppellantSriman Prabahan Mitra
RespondentSm. Madhuri Mitra and ors.
Appellant AdvocateAninda Mitra and ;Manjula Chowdhury, Advs.
Respondent AdvocateRathin Deb, ;Manindra Nath Ghose and ;Alok Kumar Ghosh, Advs.
DispositionAppeal allowed
Cases ReferredBegam v. Sk. Golam Md.
Excerpt:
- 1. these two appeals are at the instance of sriman prabahan mitra, plaintiff in title suit no. 96 of 1982 and defendant no. 4 in title suit no. 97 of 1982 and they are directed against the common judgment made on aug. 31, 1982 by sri b. k. panda, subordinate judge, 4th court, alipore, 24-parganas, dismissing the title suit no. 96 of 1982 and decreeing the title suit no. 97 of 1982, directing the defendants nos. 1 to 4 of title suit no. 97 of 1982 to execute and convey the suit property mentioned in the plaint schedule in favour of the respondents within 2 (two) months from the date of the judgment after receiving the balance consideration money, in default the plaintiff in title suit no. 97 of 1982 may apply to the court for execution and registration of the conveyance of the property.....
Judgment:

1. These two appeals are at the instance of Sriman Prabahan Mitra, Plaintiff in Title Suit No. 96 of 1982 and Defendant No. 4 in Title Suit No. 97 of 1982 and they are directed against the common judgment made on Aug. 31, 1982 by Sri B. K. Panda, Subordinate Judge, 4th Court, Alipore, 24-Parganas, dismissing the Title Suit No. 96 of 1982 and decreeing the Title Suit No. 97 of 1982, directing the Defendants Nos. 1 to 4 of Title Suit No. 97 of 1982 to execute and convey the suit property mentioned in the plaint schedule in favour of the Respondents within 2 (two) months from the date of the judgment after receiving the balance consideration money, in default the Plaintiff in Title Suit No. 97 of 1982 may apply to the Court for execution and registration of the conveyance of the property through court.

2. The facts of the case, as appeared from the pleadings of the said suit are as follows : --

3. Prabhat Kumar Mitra, since deceased, the grandfather of minor Prabahan Mitra executed his last will in respect of No. 25, Mandevilla Garden, Calcutta 19, wherein the testator gave life interest in respect of the premises No. 25, Mandevilla Garden, Calcutta-19, to his wife Sm. Madhuri Mitra and after her death to his son Sri Ajoy Kurnar Mitra and on his death to his wife i.e. Ajoy's wife, Sm. Krishna Mitra (Ira Mitra). It was also provided in the said Deed that these life estate holders will reside in the said premises and they will enjoy the rents from the annexes let out to the tenants in the suit premises. It was further provided therein that if there was any difficulty they may live elsewhere letting out the Mandevilla Garden house and out of the rental income they will creat a maintenance fund to the tune of Rs. 10,000/- (Rupees Ten thousand) and the balance may be enjoyed by them. It was also provided in the said will that after the death of Sm. Krishna Mitra, wife of Sri Ajoy Mitra, the property will vest absolutely in the son of Ajoy and Krishna or sons of Ajoy by his wife married under the Hindu right before a 'Shalgram Shilla'. In case if there be no son the property will go to the University of Calcutta for a stipend.

4. Prabhat Kumar Mitra died on November 20, 1957 i.e. about 3 (three) years after the execution of the said Will on Dec. 3, 1954. The Will was duly probated by the District Delegate, Alipore in Act 39 Case No. 155 of 1959 on Feb. 19, 1960. On April 6, 1977 an agreement of sell of the said premises i.e. 25, Mandeville Garden, Calcutta-19, comprising of an area of 17 Katha 8 Chittaks 21 Sq.ft. more or less out of the land of the said premises together with the one storied and partly two storied Bungalow house was executed by the minor's grandmother Sm. Madhuri Mitra, his father Sri Ajoy Kumar Mitra and his mother Sm. Krishna Mitra on their behalf as well as on behalf of the minor son by his father natural guardian Ajoy Kumar Mitra for a total price of Rs. 6,33,907/- in favour of Chorus Co-operative Housing Society Limited and obtained a sum of Rs. 1,001/- by way of earnest money. Thereafter on an application made by Sri Ajoy Kumar Mitra as guardian of his minor son Master Prabahan Mitra in the court of the District Judge, Alipore permission was granted by Order No. 5 dated March 31, 1978 for sale of minor's interest in the property subject to payment of Rs. 72,000/- to be kept in deposit in Court.

5. Title Suit No. 148 of 1978 subsequently renumbered as Title Suit No. 96 of 1982 was filed on Sept. 13, 1978 by minor Probahan Mitra son of Ajoy Kumar Mitra represented by his maternal grandfather and next friend Ratan Nath Dutta in the 2nd Court of the Subordinate Judge, Alipore for a decree declaring that the plaintiff has absolute vested right in premises No. 25, Mandevilla Garden property described in Schedule 'A' to the plaint, for a decree declaring the purported agreement for sale dated April 6, 1977 as void and not binding upon the plaintiff and for an order of permanent injunction restraining the defendant from dealing with and/or transferring the rights of the plaintiff in the property in any manner whatsoever. It has been pleaded that the said agreement of sale is not legal and valid and as such it cannot be specifically enforced against the minor Probahan Mitra, the plaintiff. It has also been pleaded that Smt. Madhuri Mitra, Ajoy Kumar Mitra and his wife Smt. Krishna Mitra having only given the right to reside in the house during their lifetime without any right to transfer and to keep the property in specie cannot enter into such an agreement to sell the property contrary to the express desire of the testator as embodied in the said Will. The agreement is illegal and bad. It is also not for the benefit of the minor and there was no legal necessity for sale of minor's vested absolute interest in the property. The price at which the property is agreed to be sold does not represent the proper market price and the valuation made by Messrs Talbot and Co. is merely a made-to-order report obtained by the defendants to suit their purpose. The permission to sell minor's interest in the property should not have been given by the Court.

6. The Chorus Co-operative Housing Society Ltd, as plaintiff instituted title suit No. 170 of 1978 subsequently renumbered as title suit No. 97 of 1982 in the 2nd Court of Subordinate Judge at Alipur for a decree for specific performance of contract embodied in the agreement of sale dated April 6, 1977 as amended by the subsequent agreement raising the amount of consideration to Rs. 6,34,000/-directing the vendors to transfer the said property to the plaintiff absolutely and free from encumbrances as per draft conveyance approved by learned District Judge, 24-Parganas and also for damages and/or compensation for breach of contract amounting to Rs. 1,00,000/- and for other reliefs stating inter alia that the defendants 1 to 4, that is, Smt. Madhuri Mitra, Ajoy Kumar Mitra, Smt. Krishna Mitra and minor Probahan Mitra, represented by his father and natural guardian Ajoy Kumar Mitra executed and registered the said agreement to sell the suit property, that is, premises No. 25, Mandevilla Garden at a price of Rs. 6,33,507/-subsequently raised to Rs. 6,34,000/- on receiving an earnest money of Rs. 1001/- from the plaintiff. The defendants 1 to 4 after obtaining permission of the District Judge to sell minor's interest in the property refused to execute the deed of sale and so this suit has been filed.

7. The defendant No. 6, the Chorus Cooperative Housing Society Ltd. has filed a written statement in Title, Suit. No. 96 of 1982 stating that the defendants Nos. 1 to 3 accepted the offer of defendant No. 6 and agreed to sell j the suit property for a consideration of Rs. 6,33,507/-. Accordingly the defendants Nos. 1 to 3 and the defendant No. 2 Ajoy Kumar Mitra as natural guardian of his minor son, the plaintiff executed and registered the agreement of sale on 6th April 1977 after obtaining a sum of Rs. 1,001/- as earnest money. It was also agreed that the defendants would sell the suit property to the society after making out a good marketable title and after taking permission from the Court necessary for sale of minor's interest in the said property. The defendant No. 2 duly applied for and obtained permission from the District Judge to sell minor's interest in the suit property. But the defendants Nos. 1 to 3 and the plaintiff did not take any steps to obtain permission for selling the suit property as required under the provisions of Urban Land (Ceiling and Regulation) Act, 1976. The defendants also evaded to execute the deed of conveyance in favour of the defendant No. 6 in spite of repeated requests. The agreement is a valid agreement and it is for the benefit of the minor. The suit is therefore liable to be dismissed.

8. The plaintiff of Title Suit No. 96 as defendant No. 4 filed a written statement in Title Suit No. 97 of 82 stating inter alia that the agreement being contrary to the bequest is not legally enforceable. It has also been stated that the agreement is not for the benefit and welfare of the minor and there was no legal necessity to sell the minor's property. The agreement, it has been stated, cannot be enforced as there has been subversion of relation intended to be established by the terms of the agreement.

On the said pleadings the following issues were framed : --

1) Are the suits maintainable as framed?

2) Is the Deed of Agreement dated 6-4-1977 specifically enforceable or it is void and not binding upon plaintiff in T. S.No. 96 of 1982?

3) Is the plaintiff in Title Suit No. 96 of 1982entitled to a declaration that he has vestedabsolute right in premises No. 25, MandevillaiGardens?

4) To what relief if any is the plaintiff entitled?

9. The plaintiff examined two witnesses, that is, Ratan Nath Dutta, maternal grandfather and the next friend of the plaintiff Probahan Mitra and Harish Chairdra Mitra, the Engineer Valuer. Defendant also examined 5 witnesses. P. W. 1 Ratan Nath Dutta has stated in his evidence that Madhuri Mitra, Ajoy Mitra and Krishna Mitra are not competent to transfer or dispose of 25, Mandevilla Gardens. Ajoy Mitra does not have any power to sell minor's property and the sale is not for the benefiland welfare of the minor. It was also his evidence that Ajoy Mitra after the agreement prayed for permission of sale of the minor's property before the District Judge, Alipore. Permission was granted. But on the objection of P. W. 1 operation of that order had been stayed. The valuation of the property as suggested by the defendant No. 6 did not represent the correct valuation. P. W. 1 also stated that the agreement for sale dated 6th April 1977 is void and is not binding upon the minor. In cross-examination it has been stated by P. W. 1 that according to him the entire value of the suit property will go to the credit of his grand son minor Probahan Mitra, P. W. 2 is a Charter Engineer and Valuer stated in his deposition that he valued the property at Rs. 10,20,000/-, that is, at the rate of Rs. 60,000/- per katha. D. W. 1 Sundarlal Mitra who is the partner of Talbot and Co. stated in his deposition that the valuation of the suit premises was made at the instance of Ajoy Kumar Mitra by Talbot and Co. and the valuation report was signed by Mr. S. Dey senior partner. It is also his evidence that the Chorus Co-operative Housing Society instructed them (Talbot and Co.) to make valuation and the valuation was calculated on the basis of the value per katha of land at Rs. 34,000/-. D. W. 2 Ajoy Bose who looked after the case on behalf of the Cooperative Society stated in his evidence that in accordance with the valuer's report. Ajoy Mitra took Rs. 72,000/- from the society and deposited the same under order of the District Judge in the present case. It has been stated also by D. W. 2 that there was no collusion between the Society and Ajoy Mitra, Krishna Mitra and Madhuri Mitra in valuing the minor's share in the property. It is also his evidence that the society did not influence Talbot and Co. for the purpose of making the valuation. D. W. 2 also stated that he cannot say whether Madhuri Mitra, Krishna Mitra and Ajoy Mitra surrendered their life interest in favour of Probahan Mitra D. W. 5 Lalchand Chowdhuri who acted as junior to advocate Sailenifra Nath Dutta on behalf of Shri Ajoy Mitra in the Act 32 proceedings before the District Judge stated that one Mr. Ajoy Bose attended the said proceedings on behalf of the Co-operative Society.

10. On 31st August 1982 Shri D. K. Panda, Subordinate Judge, 4th Court, Alipore after hearing learned Advocates for the parties delivered judgment dismissing Title Suit No. % of 1982 without costs and decreeing Title Suit No. 97 of 1982 with costs. The defendants 1 to 4 of Title Suit No. 97 were directed to execute and convey the suit property mentioned in the plaint schedule in favour of the plaintiff by transferring the suit property within two months from date after getting the consideration money. In default the plaintiff of Title Suit No. 97 of 1982 may apply, this Court for execution and registration of the conveyance of the property through Court. It was found by the learned Subordinate Judge with regard to issue No. 1 that both the suits as framed were maintainable as the said issue was not pressed. As regards issues Nos. 2 and 3 it was held that it was not the case of the minor that he had no saleable interest and his case was that the estate was vested in him subject to certain earlier life estates. It was contradictory to say that the property could not be sold by all persons having interest and representing the estate as a whole together. There was no term in the will that the property could not be sold and such a term could not be implied. It was further found that the interest of life estate holders could be sold It was also found that the property was not fetching any income and under these circumstances there could not be any other opinion about the expediency of the proposal for sale. It was also held that the question whether the minor had any vested interest or contingent interest was redundant in the case. The interest of the minor is a contingent interest and the same is transferable. The learned Subordinate Judge also held that the house was not fetching any income as admitted by Madhuri, Ajoy and Krishna Mitra and it was against the interest of the minor to maintain the property as it was. Therefore it was preposterous to contend that the sale which was contemplated by the grandmother, father and mother was not a bona fide contemplation or that it was not for the benefit of the minor. Valuation made by Talbot and Co. represents the correct price based on best available data. It was further held that para 4 of the agreement (Ext.D) though provided that the life estate holders shall surrender their interest in favour of the minor, still then even there is no surrender the Court may direct life, estate holders along with the minor to execute the conveyance on surrendering their life estates and the natural guardian of the minor making the conveyance. It has been further found that the parents ana grandmother of the minor are not expected to act adversely to the interests of the minor nor there was any collusion between the grandmother and parents of the minor with the Cooperative Society. No particulars of fraud or collusion have either been given in the pleadings or proved.

11. Against this judgment and decree the plaintiff of Title Suit No. 96 of 1982 preferred two appeals being F. A. No. 169 of 1983 and F. A. No. 30 of 1983 in this Hon'ble Court. Mr. Mitra learned Advocate appearing on behalf of the appellant has submitted that the purchaser Chorus Co-operative Housing Society Ltd. having acted at variance with and also in subversion of the relation intended to be established by the contract for sale is not entitled to get a decree for specific performance of the agreement of sale. It is submitted by Mr. Mitra that in the agreement of sale it has been specifically provided that the vendors will make out a good marketable title in respect of the property upon surrendering their life interest in favour of the minor son Probahan Mitra, that is, vendor of the 4th part and upon obtaining permission of the Court for sale of the said property and also upon obtaining necessary permission from the authorities under the Urban Land (Ceiling and Regulation) Act, 1976 and upon taking such further or other steps necessary to pass on to the purchaser absolute title to the said property will complete the sale. The purchaser, the parents and the grandmother of the minor together took steps after the execution of the agreement for sale to preserve successive life interests and to make payment of Rs. 72,000/-only for minor's interest in the property. In such circumstances it has been submitted that the purchaser Chorus Co-operative Society cannot get a decree for specific performance of the contract for sale as they have acted in subversion of the relation intended to be established by the contract. Mr. Mitra further submitted that no power to sell the property has been given under the Will of the testator Probhat Kumar Mitra. The Will specifically provides for the preservation of the property in specie. In such circumstances the agreement to sell of the suit property being contrary to the bequest mentioned in the Will is not enforceable at all being hit by Section 147 of the Indian Succession Act. It has been further submitted in this connection by Mr. Mitra that life estate holders have been given merely the right to reside in the suit property during their lifetime and as such they have no right to transfer their life estate and the alleged agreement to sell is hit by the provisions of the T. P. Act. Some decisions have been cited at the bar on this point by Mr. Mitra. It has been next submitted that the agreement to sell is incomplete and inchoate as it provides that upon obtaining permission of the Court for sale of the property and upon surrender of the life interests of the three successive life interest holders in favour of the minor the absolute title in the property would be conveyed to the purchaser by the minor Probahan Mitra. These two conditions precedent having not been fulfilled or in other words these contingencies having not occurred the agreement to sell is not legally enforceable. Some decisions have been cited at the bar on this score. It has been further submitted that there being no legal necessity and the alleged agreement to sell the minor's interest in the property being not for the benefit and welfare of the minor such an agreement is wholly bad and it is not legally enforceable. It has been submitted in this connection that the scheme regarding purchase of flat and purchase of land and construction of the building as stated in the petition filed by his father and natural guardian Ajoy Kumar Mitra before the Court for obtaining permission is a mere wishful thinking and the same cannot be enforced. In such circumstances if the only residence of the family including the minor is transferred the minor will have no dwelling house. Such an agreement of sale, therefore, is not at all for the benefit of the minor. Moreover the prices mentioned in the agreement of sale does not represent the correct market price and furthermore the price of land is appreciating and if the said property is transferred on the basis of the agreement of sale it would have the effect of depriving the minor of the benefit of augmentation of value of the property which is likely to occur in future. It has been lastly submitted that even if the contract of sale is otherwise valid the Court is not bound to decree specific performance as it is the discretion of the Court whether it may after considering the interest of the minor and also the contingent interest of the Calcutta University who is not a party to the agreements refuse to grant specific performance of agreement of sale in exercise of its jurisdiction. It has been further submitted that there being no valid permission of sale of the minor's interest by the Court the order of the Court below decreeing the specific performance of contract is wholly illegal and bad.

12. Mr. Manindra Nath Ghosh and Mr. Rathin Deb learned Advocates for respondent No. 6, the Chorus Co-operative Housing Society Ltd., have firstly contended that the agreement to sell the suit property executed by the respondents Nos. 1 to 3 on their behalf as well as on behalf of minor Probahan Mitra, the appellant is not an incomplete and inchoate agreement. This agreement is enforceable in law and the Court can direct the vendors to carry out the two obligations contained in term No. 4 of the said agreement and also to take other steps to pass absolute title to the property in question to the vendor. It has been further contended in this connection that this Court should affirm the decree passed by the Court below and should direct the vendors to obtain the permission of the District Judge as required under Section 8(2) of the Hindu Minority and Guardianship Act, 1956. Mr. Deb has cited some decisions at the bar on this score. It has been next contended that the requisite permission having been granted already on March 31, 1978 by the District Judge in Act 32 Case No. 1 of 1978 there is no embargo on the part of this Court to affirm the decree for specific performance of contract dismissing the appeal and to direct the vendors to execute the kobala on the basis of the agreement in favour of respondent No. 6. It has also been submitted that order No. 13 dated 21-9-1978 staying the execution of the sale deed cannot be given effect to as permission has been already granted. Moreover permission already granted cannot granted cannot be challenged collaterally in a proceeding that is by filing an application for revocation of permission as Section 48 of the Guardians and Wards Act operates as a bar. It has been next contended by Mr. Deb, the learned Advocate, that in the absence of any issue as to the unenforceability of the contract in question owing to the wilful act of the society at variance with the essential terms of the contract or in subversion of the relation intended to be established by the contract and no argument having been advanced by the appellant in the Court below in this regard the appellant cannot be permitted to agitate this issue which is a mixed question of fact and law for the first time in this appeal. It has been lastly submitted by Mr. Deb that the interest of the minor being a contingent interest even if it is assumed for argument's sake that it is not a vested remainder still then there is no legal bar for transfer of such contingent interest as the court below has rightly held so. Therefore it has been submitted that since all the life interest holders, that is, the plaintiffs grandmother and parents as well as the plaintiff's father as his natural guardian executed the contract for sale of the suit property in favour of the respondent No. 6 and the requisite permission of the Court being obtained already the Court below has rightly granted the decree for specific performance of contract. Mr. Deb further submitted in this connection that even if absolute title does not pass in favour of the society by the execution of the deed of conveyance by the vendors still then the society is ready and willing to accept it whatever title passed to it by the execution of the deed of conveyance on the basis of the decree for specific performance of contract. Mr. Deb also submitted that the price stipulated in the contract represents a fair market price at the time the contract was entered into between the parties and this is also supported by the valuation made by M/s Talbot and Co. The sale envisaged in the said contract is for the benefit of the minor and as such the court below rightly decreed the suit for specific performance of contract.

13. Before proceeding to consider the merits of the contentions raised on behalf of the parties it is relevant to mention the material provisions of the Will executed by Probhat Kumar Mitra, grandfather of the appellant minor Probahan Mitra on 3rd Dec. 1954. It has been provided in the Will that the testator's wife Smt. Madhuri Mitra shall have life interest in premises No. 25, Mandevilla Gardens and 5/1 Garcha First Lane. Out of the total rents of Rs. 300/- accruing from the two houses his wife will get Rs. 150/- per month for her personal expenses to be spent by her at her own sweet-will. It has been further provided that in case there is deficiency from rent then she will receive Rs. 150/- per month or the amount of deficiency out of the money to be received from the firm Messrs P. K. Mitra and Co., Chartered Accountants. After the death of Smt. Madhuri Mitra the testator's son Ajoy Kumar, Mitra shall have life interest in premises No. 25, Mandevilla Garden and he shall get the balance of the rent from its annexe after paying Corporation taxes and meeting repair costs of the main house and its annexe. The Will also provides that if Ajoy Kumar Mitra's wife Smt. Krishna Mitra (Ira Mitra) survives him then she shall have life interest on the property and will get monthly allowance as that of Ajoy Kumar Mitra. It has been further provided that if the testator's son Ajoy Kumar Mitra and his wife Sm. Krishna Mitra cannot maintain the house they may live in other suitable place and their monthly allowances as stated above shall be increased accordingly after creating 25, Mandevilla Garden maintenance fund by depositing half of the rent of the main house in this fund subject to a maximum of 10,000/- Rupees. It is also mentioned in the Will that all persons, the testator's wife, his son and his daughter-in-law Krishna Mitra shall have the right to live in the main house 25, Mandevilla Garden and its annexe shall always be let out. After the death of testator's daughter-in-law Krishna Mitra this 25, Mandevilla Garden property will vest in the son of Ajoy and Krishna or sons of Ajoy by his wife, married to him under Hindu rites before 'Salgram Sila'. If there be no sons to them the property shall go to the University of Calcutta for a stipend to be called Col. Sarat Chandra Mitra to be given to a poor Bengali Hindu boy for higher studies in Europe or U. S. A. in Gynocology. On a plain reading of these terms of the Will it is abundantly clear that the life estate holders, that is, Smt, Madhuri Mitra, Shri Ajoy Kumar Mitra and his wife Smt. Krishna Mitra (Ira Mitra) have been given merely the right of residence in premises No. 25, Mandevilla Garden Road and to enjoy the rent from the annexe let out to the tenants. There is an express bar by the Will that the life estate holders shall not transfer the property and the property will vest absolutely to the son or sons of Ajoy and Krishna surviving at the time of death Smt. Krishna Mitra. It has also been provided that if there be no sons surviving at that time then the property will go to the University of Calcutta for a stipend. Therefore the life interest holders Sm. Madhuri Mitra, Sri Ajoy Mitra and his wife Sm. Krishna Mitra have been given the mere right of residence in the main building at 25, Mandevilla Garden Calcutta, without any right to transfer the said property.

14. The first question that falls for consideration is whether the agreement to sell of 17 Kattas and odd land including the main building in premises No. 25, Mandevilla Garden, Calcutta, executed on 6th April 1976 is hit by Section 147 of the Indian Succession Act. Section 147 provides that property specifically bequeathed to two or more' persons in succession has to be retained in the form in which the testator left it although its value may continually decrease. This provision clearly applies to the instant case. The property in 25, Mandevilla Garden has been bequeathed in succession to Sm. Madhuri Mitra during her lifetime, then to her son Sri Ajoy Kumar Mitra during his lifetime and then to the daughter-in-law Sm. Krishna Mitra during her lifetime and after the death of Sm. Krishna Mitra the property will vest absolutely in the son or sons of Ajoy and Krishna or in the absence of any son to them surviving at that time the property will vest in the Calcutta University for a stipend. It is, therefore, clear that the property has to be kept in specie and it will vest absolutely after the death of the last life interest holder Smt. Krishna Mitra to her son or sons if surviving at the time of her death and in absence to the Calcutta University. In such circumstances, the said transfer by the said agreement for sale made by the life estate holders is contrary to the express desire of the testator as embodied in the Will. Therefore the argument that the said contract is hit by S. 147 of the Indian Succession Act has got merit and it succeeds. The agreement is not a legal agreement and the same cannot be enforced. The agreement is also not enforceable as the contract is a contingent one and the contingency is yet to occur. In term No. 4 of the said agreement it has been expressly provided that the vendors will take all steps to make out a good marketable title in respect of the suit property upon surrendering life interests of the vendors of the first, second and third part in favour of the vendor of the fourth part, that is, the minor son Probahan Mitra and upon obtaining the permission of the Court for the sale of the said property and also upon obtaining necessary permission from the authorities under the Urban Land (Ceiling and Regulations) Act, 1976 to execute the deed of conveyance. In this case there is nothing to show that the life interest of Madhuri Mitra, Ajoy Kumar Mitra and Krishna Mitra have been surrendered in favour of the minor Probahan Mitra, the present appellant, nor permission from the authorities under the Urban Land (Ceiling and Regulations) Act 1976 has been obtained. The title to the property has not vested absolutely in the minor son Probahan Mitra as all the life interests have not been surrendered in favour of the minor son Probahan Mitra. The contract in such circumstances as it stood at the time when the suit for specific performance of contract was filed was never a complete contract but it was an incomplete and inchoate contract and as such it cannot be legally enforceable. The two conditions contained in the agreement for sale, that is, 1) upon obtaining permission for sale of the property and 2) upon surrender of life interests of three successive life interest holders absolute title to the property would pass on to the purchaser have not been fulfilled. These two conditions are conditions precedent to the sale of property. The District Judge granted a permission for sale of the minor's interest in the property in question on 31st March 1978 by order No. 5 in Act 32 Case No. 1 of 1978. Subsequently the District Judge by order No. 13 dated 21-9-1978 stayed execution of the sale deed till the disposal of the petition for revocation of the said permission or until further orders. It also appears from order No. 25 dated 7th May 1979 in the said Act 32 Case No. 1 of 1978 that the District Judge made an observation 'that the aforesaid suit for specific performance of contract and every other litigation now pending between the parties either in this Court or in other Court in this Judgeship shall be adjudicated upon without reference to the grant of the aforesaid permission for sale which shall not cause any prejudice to the rights and obligations of the parties involved in such litigation'. By this order therefore the permission for sale which was granted earlier has in effect been stayed expressly providing that the suit will be tried and adjudicated upon without consideration of the permission granted. Therefore the two essential conditions contained in the said agreement for sale have not been fulfilled at the time when the suit for specific performance of contract have been filed and as such this incomplete and inchoate contract is not legally enforceable as has been urged by the learned Advocate appearing on behalf of the appellant. Reference may be made in this connection to the decision in (1886) ILR 12 Cal 152 at p. 155, Narayan Patra v. Akhoy Narayan Manna. In this case a certificated guardian of certain minors entered into an agreement with the plaintiff to sell certain lands belonging to the minors for a fixed price contingent upon the leave of the contract which was necessary to be obtained to transaction and a portion of the purchase money being paid by the plaintiff the Court sanctioned the sale but at a higher price than that agreed upon between the plaintiff and the guardmn, and the latter sold the property to a third party. The plaintiff sued the minors through their guardian as next friend and the third party for specific performance of agreement of sale to him at the price mentioned in the agreement. It was held that the contract was not one which could be specifically enforced. It was further held that the contract as it stood was never a complete contract at any time as it was contingent upon the permission of the Court and the permission of the Court did not extend to the whole contract as agreed upon between the parties. This decision was followed in a later decision reported in 20 Cal WN 929 : (AIR 1916 Cal 126) Smt. Kali Dasi Dassi v. Smt. Nobo Kumari Dassee. In (1948) 52 Cal WN 472 Dalsukh M. Pancholi v. The Guarantor Life and Employment Insurance Co. Ltd., a property was under attachment by two Courts in execution of two money decrees and had been ordered to be sold by a third Court in execution of mortgage decrees. To avert this sale the owners contracted to sell the property to the appellant at a certain price subject to Court's approval. It was held that the contract was contingent upon the Court's approval and as the application to the appropriate Court by the proper person as contemplated by the contract for approval had been rejected the contract fell to the ground. Hence the suit for specific performance of contract was dismissed. This decision of the Privy Council was relied upon in a subsequent decision of this Court reported in (1973) 77 Cal WN 781 Amarendra Nath Mondal v. Noorjahan Bibi where Dr. D. Pal J. observed that as the agreement for sale subsequently provide for obtaining the permission of the Court before the deed of sale was to be executed the contract was a contingent one. The contingency having not been fulfilled the contract was not enforceable.

15. It has been urged on behalf of the appellant that the impugned agreement for sale is not for the benefit of the minor and there was no legal necessity for executing the agreement for sale of minor's interest in the suit property by Ajoy Kumar Mitra, the natural guardian of the minor. It has been further submitted by Mr. Mitra, the learned Advocate for the appellant, that the house in 25, Mandevilla Garden Road is the only residence of the minor and if this agreement for sale of this property is allowed to be specifically enforced then there will be no house where the minor can reside. The scheme that has been mentioned in the application for permission of the District Judge to sell the minor's interest is a mere wishful thinking and it cannot be legally enforced. It has, therefore, been submitted that the said sale is not for the benefit of the minor at all. Mr. Mitra has in this connection drew our attention to the provisions of Section 8, Sub-section (2) of the Hindu Minority and Guardianship Act which provides that the natural guardian of a minor shall not without the previous permission of the Court mortgage or charge or transfer by way of sale any part of the immovable property of the minor and in Sub-section (3) it has been further provided that such disposal of immovable property by the natural guardian in contravention of Sub-section (2) is voidable at the instance of the minor or any person claiming under him. In the instant case as I have already stated hereinbefore that the permission that was granted was subsequently in effect stayed as the learned District Judge observed that such submission should not be taken into consideration while adjudicating the suit for specific performance of contract. Therefore in the absence of a valid permission for sale the agreement of sale is not enforceable being not in accordance with the provisions of Section 8 of the said Act. It has been submitted on behalf of the respondent that a decree for specific performance of contract of sale can be granted directing the vendors to obtain the permission from the Court subsequently. In support of this submission Mr. Deb has referred to a decision in : [1964]2SCR495 . In this case the plaintiffs entered into a contract of sale of a house belonging to the defendant on the plot granted by the Government, One of the terms of the contract was that the vendor shall obtain necessary permission of the Government for the sale within two months of the agreement and if the permission was not forthcoming within that time, it was open to the vendees to extend the date or to treat the agreement as cancelled. The vendor made application for permission, but for the reasons of her own withdrew the same. Suit was filed by the vendee for specific performance of contract or for damages. It was held that the contract was not a contingent one and the parties agreed to bind themselves by the terms of the document executed between them. The Court decreed the suit for specific performance of contract and enjoined the defendant appellant to apply for necessary permission to the Chief Commissioner. It was also held that in the event of the permission being refused the vendees would be entitled to the damages. In : AIR1982Cal199 Biswa Nath Charit v. Damodar Patra it was held that an agreement for sale was not void but voidable at the instance of the minors if it could be shown that it was not for the benefit of the minor. It was also held that mere fact that the agreement was not void would not by itself render it straightway specifically enforceable at the instance of the purchaser. Such an agreement would be enforceable only upon previous permission being obtained from the Court. But if the natural guardian enters into an agreement (or sale for the benefit of the minor he by necessary implication enjoins himself to take necessary permission from the Court and in such cases a decree can be passed for specific performance of contract subject to the natural guardian of the minor obtaining necessary permission from the Court as provided in Section 8 of the Hindu Minority and Guardianship Act, 1956. The above two decisions are not applicable to the facts of the present case inasmuch as in the Supreme Court case the natural guardian mother did apply for permission of the Commissioner, but subsequently withdrew it and as such a decree for specific performance of contract was granted subject to the permission given by the Commissioner and directing the guardian to apply for permission. In the latter case the agreement of sale by the guardian was held to be for the benefit of the minor and secondly the Court held that more than 21 years have passed since agreement for sale was entered into and during this period the minors ceased to be minors and more than three years lapsed since the date of their attaining of the majority and the minors did not apply for avoiding the contract. It was, therefore, held that the minors had no locus standi to challenge the decree for specific performance of contract granted by the court below. Moreover the finding of the learned Subordinate Judge that the house was not fetching any income and that the three life-interest holders stated that it was in disrepair and it was against their interest and also against the interest of the minor to maintain the property as it is and it is preposterous to contend that the sale which was contemplated by the grandmother, father and mother was not a bona fide contemplation or that it was not for the benefit of the minor are in my opinion not sustainable inasmuch as the sale of the suit property is not for the benefit of the minor as the minor in whom the property will ultimately vest has been given only a paltry sum of Rs. 72,000/- out of the total consideration of Rs. 6,34,000/- as stipulated. The life interest holders having a mere right of residence without any right to transfer the property has been allowed to get the bulk of the purchase money. Furthermore there was no necessity for sale of this valuable property and the property was not burdened with any liability. In such circumstances the finding that the sale was for the benefit of the minor is not sustainable at all. In the case of Palaniappa Chetty v. Deivasikamoney Pandara 44 Ind. App. 147 : (AIR 1917 PC 33) it has been observed that the words 'benefit of the estate' in justifying an alienation by the manager for infant heir or by the trustee of a religious endowment cannot be precisely defined but it includes that preservation of the estate from extinction, its defence against hostile litigation, its protection from inundation and similar circumstances. This decision had been followed in : AIR1975Cal389 Jogendra Nath v. Official Receiver. It has been observed that in order to constitute a legal necessity an alienation must be for the preservation of or for the benefit of the estate. In the instant case there is nothing on record nor it has been proved that such an agreement for sale which has been executed was necessary for preservation of the estate or for the benefit of the minor. There is nothing to show that the municipal taxes in respect of this property are due or that the property is in such a state of bad repairs that it will crumble down unless repairs are made immediately. On the other hand the sale of the property will render the minor homeless as there is no other house for the minor to live in. In these circumstances I am constrained to hold that the sale is not for the benefit of the minor. The finding of the learned Judge that the property is not fetching any income in my opinion cannot be taken as a plausible ground for holding that the agreement for sale is for the benefit of the minor. Moreover no suggestion was given to the witnesses called on behalf of the minor as to the dilapidated condition of the building. Therefore there is no necessity for sale of the minor's interest in the suit property. Moreover the value of the land is appreciating and the sale if allowed will have the effect of depriving the minor of the benefit of an augmentation of price of the property. It is relevant to refer to the decision in : AIR1976SC1860 Sridhar Suar v. Sri Jagannath Temple where it has been observed that to lease out a property of the deity at a fixed rent for all time though adequate at the time to meet unavoidable necessity in lieu of giving the endowment the benefit of augmentation of a variable rent from time to time would be a breach of duty of the mohunt.

16. The impugned agreement for sale executed by the life interest holders who were given mere right of residence in the building at 25, Mandeville Gardens is not in accordance with law as under Section 6, Clause (d) of the T.P. Act these life-interest holders are not entitled to transfer their such restricted interest in the suit property. Apart from the question whether in view of the provisions of the will the interest of the minor son Probahan Mitra was a contingent interest or spes successionis as it has been provided that if no son or sons of the last life estate holder is surviving at the termination of the last life interest then the property will go to the University for a stipend, it is also to be noted that the two other life interest holders that is Ajoy Kumar Mitra and his wife Smt. Krishna Mitra have not got any interest as yet as Smt. Madhuri Mitra is living and it is she only who has got the life interest in the suit property. The impugned transfer, therefore, on this score is also bad and unenforceable. It is pertinent to refer in this connection to the decision in AIR 1939 PC 157, Lechhmeshwar Sahai v. Mt. Moti Rani Kunwar. In this case a partition deed was entered into by a Hindu governed by Mitakshara law, and his wife and three sons whereby the father and each of the sons obtained a 4 annas share. They covenanted that after the death of the Father his 4 annas share should remain in possession and occupation of his wife up to her lifetime with life interest, that up to her lifetime she would have a right to appropriate the profits therefrom without a power of making a mortgage or other transfers. Sir George Rankin who spoke for the Privy Council held that the intention of the deed was to give her for her maintenance a personal right to appropriate the net profits of her husband's share, after his death. Her interest under the deed was therefore an interest in property restricted in its enjoyment to the owner personally within Clause (d) of Section 6 of the T.P. Act and was therefore not transferable. The contract for sale in this case cannot be specifically enforced as the vendee, that is the Chorus Co-operative Housing Society have wilfully acted at variance with or in subversion of the relation intended to be established by the two terms of the contract as embodied in term No, 4 of the said agreement, that is, upon surrendering the life interests of the vendors of the first, second and third part in favour of the vendor of the 4th part, that is the minor son Probahan Mitra and upon obtaining the permission of the Court for sale of the said property and also upon obtaining necessary permission from the authorities under the Urban Land (Ceiling and Regulation) Act, 1976 to make out a marketable title. Neither the life interests of the grandmother, father and mother of the minor have been surrendered in favour of the minor son nor the necessary permission from the Court was obtained because of the order of stay for execution of the Kobala and also of the order of the District Judge that the permission that was previously granted should not be taken into consideration in adjudicating the suit for specific performance of contract. The purchaser in conjunction with the parents of the minor have acted in variance with or in subversion of relation intended to be established by the said terms of the contract. Purchaser has claimed sale of interest of the holders of the three successive life interests and also the contingent or vested remainder of the minor. The contract is, therefore, not enforceable being contrary to the provisions of Section 16(b) of the Specific Relief Act, 1963. Reference may be made in this connection to the decision of the Privy Councilin the case of Sirish Chandra Roy v. Bonomali Roy ILR 31 Cal 584 where it has been held that in a suit by heirs of the party who are trying to rescind the agreement on the ground that there had been a failure of consideration and the conduct referred to was at variance with and amounted to a subversion of the relation intended to be established by the promisee the specific performance of the agreement could not be enforced. The above decision has been followed by a Division Bench of this Court in : AIR1983Cal216 , Sahida Bibi alias Begam v. Sk. Golam Md. where it has been held that in a suit for specific performance of agreement to sell an immovable property the plaintiff cannot get a decree if he violates essential terms of the contract that are required to be performed or if he wilfully acts at variance with or in subversion of the relation intended to be established by the contract. In the instant ease the vendee, that is, the Co-operative Society has acted at variance with or in subversion of the relation intended to be established by the contract inasmuch as there has been no surrender of the life interests by the holders of such interests nor the previous permission of the Court as well as of the authorities has been obtained as provided for in the terms of the agreement. Therefore the instant agreement for sale is not legally enforceable.

17. It has been submitted on behalf of the Respondent No. 6 that there being no issue framed and no argument having been made on behalf of the defendant appellant in the Court below the appellant should not be permitted to urge this point before the appellate Court for the first time as this issue involves both fact and law. This submission cannot be sustained as issues Nos. 2 and 3 which cover this point were framed and tried in the said two suits. Therefore there is no question of raising this issue for the first time in the appeals.

18. The grant of relief by way of specific performance of contract is a discretion of the Court and the Court is not bound to decree specific performance even if the contract of sale is otherwise valid. In the instant case considering the facts and circumstances I am constrained to hold that this Court will be slow to grant this discretionary relief by directing specific performance of contract for sale as I have held already that the property in question which is the subject matter of the contract is the only house property for the minor to live in. Moreover there is no compelling necessity for sale of the said property. In consideration of the contingent interest of the minor as well as of the Calcutta University in case the minor does not survive at the time of the termination of the last life estate the discretionary relief by way of granting specific performance of contract of sale will not meet the ends of justice nor will it be for the benefit and welfare of the minor.

19. In the premises aforesaid these appeals are allowed and the judgment and decree of the Court below are hereby set aside. Title Suit No. 96 of 1982 is decreed and the Title Suit No. 97 of 1982 is dismissed. The purported agreement of sale dated April 6, 1977 is not binding upon the Plaintiff at all and the said agreement is not enforceable against the Plaintiff. The defendants are restrained by permanent injunction from dealing with or transferring rights of the plaintiff in premises No. 25. Mandevilla Garden as described in Schedule A to the Plaint of Title Suit No. 96 of 1982, particularly the portion of the said premises No. 25, Mandevilla Garden as described in Schedule B.

20. There will however be no order as to costs in the facts and circumstances of the case in both the Courts.

21. We are not inclined to allow the prayer of Mr. D. Rose appearing on behalf of the Respondent No. 6 for stay of operation of the judgment as there to execute. However, Mr. Mitra, learned advocate appearing for the appellant undertakes on behalf of his client that his client will not transfer the said property or encumber it in any manner whatsoever for a period of three months.

22. Certified copy of the judgment, if applied for, may be given expeditiously. Preparation of decree be expedited.

S.N. Sanyal, J.

23. I agree.


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