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Promothonath Mittra and ors. Vs. Gostha Behari Sen and ors. - Court Judgment

LegalCrystal Citation
Subject Property
CourtKolkata
Decided On
Reported inAIR1929Cal380,118Ind.Cas.849
AppellantPromothonath Mittra and ors.
RespondentGostha Behari Sen and ors.
Cases ReferredMortlock v. Buller
Excerpt:
- .....1 and 7 have appealed and their main ground of appeal is that the plaintiffs' suit was a suit for specific performance of a contract and that a decree for partial performance such as has been given by the lower court could not legally be given under sections 14, 15 and 16, specific relief act. it is pointed out that the agreement if any, was an agreement to grant a lease by the 16 annas cosharers and not by the 12 annas cosharers. it is argued that the lower appellate court has made a new contract for the plaintiff and also that it has allowed specific performance of a portion of a contract which was one and indivisible. it was also argued that the contract was conditional and that it came to an end when the condition became impossible of performance and that the plaintiff as a.....
Judgment:

Garlick, J.

1. The facts of this case are that the plaintiff wanted a lease of 6 bighas of land 12 annas of which belonged to defendants 1 to 7 whom I shall call the Mitras and four annas belonged to defendants 8 & 9 who represent some minors whom we may call the Boses. The plaintiff negotiated with the Mitras. They agreed to give him a bemeadi lease for a selami of Rs. 300 and annual rent of Rs. 60. It was apparently assumed that the four annas cosharers would join in the lease. In pursuance of this agreement the plaintiff paid Rs. 300 as selami to the Mitras and executed a registered kabuliyat which had been drawn up in their cutchery. They agreed to give him an amalnama signed by the 16 annas cosharers. Defendants 8 and 9 however refused to join in the lease so the amalnama was never given. The Mitras offered to pay back to the plaintiff his Rs. 300 but he would not take it and insisted on getting a lease. As defendants 8 and 9 would not join in granting a lease he filed this suit against all the co-sharers, praying for an amalnama, possession of the land and mesne profits. The defence of the Mitras was that the settlement was conditional on the four annas sharers agreeing to it. Defendants 8 and 9 denied that they ever made any agreement with the plaintiff. The first Court held that defendants 8 and 9 never agreed to grant a lease and that there was only a conditional contract by the 12 annas maliks to settle the land with the plaintiff provided that the other co-sharers agreed. He held that the contract failed because the other co-sharers never agreed. It was suggested in the lower Court that the plaintiff might get an amalnama and possession from the 12 annas sharers only. The Court of first instance refused this on the ground that this was never in the contemplation of any party and that a partial settlement would lead only to complications.

2. On appeal to the District Judge it was held that though the plaintiff was not entitled to a lease from the 16 annas co-sharers he was entitled to a lease from the 12 annas cosharers in respect of their share. The order of the lower appellate Court was that the plaintiff be declared to be a lessee of the plaint lands in terms of the draft kabuliyat so far as the 12 annas share of the Mitras was concerned and that he should get possession of 12 annas share of the land jointly with the defendants 8 and 9. Defendants 1 to 7 were ordered to refund to the plaintiff 1/4 of Rs. 300 selami which they had received. The lower appellate Court also ordered an enquiry to be made as regards the amount of mesne-profits to be paid to the plaintiff. Defendants 1 and 7 have appealed and their main ground of appeal is that the plaintiffs' suit was a suit for specific performance of a contract and that a decree for partial performance such as has been given by the lower Court could not legally be given under Sections 14, 15 and 16, Specific Relief Act. It is pointed out that the agreement if any, was an agreement to grant a lease by the 16 annas cosharers and not by the 12 annas cosharers. It is argued that the lower appellate Court has made a new contract for the plaintiff and also that it has allowed specific performance of a portion of a contract which was one and indivisible. It was also argued that the contract was conditional and that it came to an end when the condition became impossible of performance and that the plaintiff as a matter of fact had never prayed in his plaint for performance of a portion of the contract namely 12 annas share of it.

3. If the suit is regarded as a suit against the 16 annas maliks for a joint amalnama then it is a suit for specific performance. But in form it is rather a suit for declaration of title and for possession. In the plaint nothing was said about specific performance of a coatract. The plaintiff alleged that his kabuliyat had been accepted and he claimed only an amalnama, possession and mesne profits. If it is a, suit for specific performance it must come under either of Sections 14, 15 and 16, Specific Relief Act. Section 14 applies when the portion of the contract which cannot be performed bears so small a proportion to the whole that the deficiency is trivial. That is not the case here. A fourth part of a contract is not an insignificant portion of the whole. Section 16 only applies when a contract can be divided into independent parts one of which can be enforced without regard to the other. That section does not apply here for a contract about a 12 annas undivided share cannot be regarded as an independent portion of a contract relating to 16 annas of the suit bond. The only section which might apply is Section 15. Section 15 applies if one party is unable to perform a considerable portion of his contract but the other party consents to accept performance of such portion as is possible of performance and is willing to for go all compensation with regard to the test of it. That section would apply here if the plaintiff were willing to take a lease from the 12 annas maliks and gave up his claim against the four annas maliks and also gave up all claim to compensation with regard to the four annas. But that was not the plaintiffs' case and that is not the relief which has been given to him. He has been declared to be a lessee of only the 12 annas cosharers of the land but not without compensation for the deficiency; for defendants 1 to 7 have been ordered to refund a quarter of the selami to him.

4. But the decree as a matter of fact is not a decree for specific performance of a contract. The decree is in the form of a declaration that the plaintiff is already a lessee of the plaint land to the extent of the 12 annas share of defendants 1 to 7 and that he will get possession of that share. He will get a refund of a part of the selami and will get mesne profits for the period subsequent to the date of the kabuliyat which he has already executed. This decision of the lower appellate Court seems to us to be in accordance with the admitted facts. Defendants 1 to 7 had agreed to give the plaintiff a lease of their share of the land and they had accepted from him a kabuliyat which was drawn up in their office. The lease had been actually granted so far as they were concerned. There is nothing further to be done by them. The plaintiff is already a lessee of that share. No amalnama is necessary. All that he requires is possession. The decree granted is not a decree for specific performance but is a declaratory decree with consequential relief. I see no reason why this decree should not be upheld. In my opinion the appeal should be dismissed with costs.

Suhrawardy, J.

5. I agree. The case has been argued before us on the basis that the suit was one for specific perfomance of a contract and it is argued on the authority of the well-known case of Price v. Griffith [1851] 1 De. G.M & G.80, that there could not be a partial decree and that the plaintiffs entire suit should be dismissed The facts as found by the learned Subordinate Judge are that the Mitters professed to grant a lease of the entire interest in the property, that they executed a memorandum giving the terms according to which the lease by the defendants should be executed. They had the draft of the kabuliyat made and corrected in their office by their own men, the manager of the Mitters gave an amalnama or authority to the plaintiff to take possession of the property, that the Mitters received Rule 300 the full selami stipulated from the plaintiff and accepted from the plaintiff rent for one quarter of 1326. On these facts the conclusion arrived at by the learned Additional District Judge is that the plaintiff is entitled to succeed in a suit for recovery of possession of land. The learned Judge has not put it in so many words; but what he means to find is that there was a concluded and completed contract of lease between the parties. It is not discovered that the Mitters are not able to give to the plaintiff title to the entire 16 annas. But so far as their 12 annas share is concerned there was nothing more to be done in order to complete the lease. There is no question of specific performance of any contract in this case because so far as Mitters' share is concerned the lease was complete It is a suit for declaration of title to land and for recovery of possession. The title of the plaintiff having been established, he is entitled to a decree for possession also.

6. With regard to the argument that has been so strenuously addressed to us as regards specific performance, the law does not seem to be so settled as the appellants take it to be. Price v. Griffith [1851] 1 De. G.M & G.80 has been explained in Hexter v. Pearoe [1900] 1 Ch. 341 where it is pointed out that the passage in Price's case which support the appellant's view was an obiter and is not to be followed in every circumstance, The case of Lumley v. Ravenscroft [1895] 1 Q.B. 683, following Price's case made certain reservations where it was observed : 'the case of oourse will be different. If nothing more than partial performance is possible by reason only of the default of the defendant, because no man ought to be allowed to take advantage of his own wrong.'

7. Burrow v. Scamwell [1881] 19 Ch. D. 175 is another case in point where it was held that a partial lease is possible where the grantor is unable to grant a lease in its entirety. This view was also taken in Shyama Charan Kotal v. Kumud Dasi [1918] 27 C.L.J. 611 though some of the expressions used in the case seem to go beyond the law as appears to have been settled by authorities. As the Judicial Committee has pointed out in William Graham v. Krishna Chandra Dey the law on this point must be taken to have been codified by Sections 14 to 17, Specific Relief Act : and English authorities can only be restorted to for the purpose of explaining those sections. Section 15 for instance provides for partial performance of a contract under certain circumstances. Even if this case were a case where Specific Relief Act was applicable I would have had no hesitation in decreeing the plaintiffs' suit under Section 15, Specific Relief Act. The law as expressed in Mortlock v. Buller 10 Ves. 292., that a plaintiff is entitled to what he has got is still good law. As I have said the case is a pure case of declaration of title and recovery of possession and the plaintiff according to the finding of the Court below has succeeded in establishing his title. The appeal therefore fails and is dismissed with costs.


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