Skip to content


Tarini Kumar Dutta and ors. Vs. Srish Chandra Das - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Reported inAIR1925Cal1160,85Ind.Cas.667
AppellantTarini Kumar Dutta and ors.
RespondentSrish Chandra Das
Cases ReferredWalidai Khan v. Janak Singh
Excerpt:
- 1. this appeal arises out of a suit for specific performance of a contact for sale of certain immovable property belonging to a minor, the defendant no. 1 in the suit. the contract was entered into by his guardian one ratikanta saha who is the natural father of the minor defendant. the minor was given in adoption by his father and, therefore, under the law he has no further connexion with the minor after the adoption. he was, however, appointed guardian, under the guardians and wards act, of the properties of the minor. the defendants nos. 2 to 6 had subsequently purchased the property with the sanction of the district judge in the name of defendant no. 7. there was some question in the court below as to whether defendant no. 7 was the benamidar for defendants nos. 2 to 6. it has been so.....
Judgment:

1. This appeal arises out of a suit for specific performance of a contact for sale of certain immovable property belonging to a minor, the defendant No. 1 in the suit. The contract was entered into by his guardian one Ratikanta Saha who is the natural father of the minor defendant. The minor was given in adoption by his father and, therefore, under the law he has no further connexion with the minor after the adoption. He was, however, appointed guardian, under the Guardians and Wards Act, of the properties of the minor. The Defendants Nos. 2 to 6 had subsequently purchased the property with the sanction of the District Judge in the name of Defendant No. 7. There was some question in the Court below as to whether Defendant No. 7 was the benamidar for Defendants Nos. 2 to 6. It has been so found by the Subordinate Judge and that finding has not been questioned before us. The Subordinate Judge made a decree in favour of the plaintiff varying to some extent the contrast upon which the plaintiff sued. Very little depends upon the oral evidence in this case, as, in our opinion, it will ha decided mainly upon the documentary evidence which has been produced by the parties.

2. The guardian entered into the contract on behalf of his ward on the 13th July 1920. After reciting the necessity for sale it is stipulated in the contract that 9 jamas belonging to the minor specified in detail would be sold, on 8 of which, it was stated, there were brick-built factory houses. It was stated that the plaintiff was desirous of purchasing the property at the highest price of Rs. 16,500 and the document concludes thus: 'I do, in receiving to-day Rs. 500 as earnest-money out of the aforesaid price, execute this deed of agreement and do hereby promise that I shall obtain permission of sale from the District Judge of Nadia and shall after executing and getting the document registered within two months of this day receive from you the balance of Rs. 16,000 out of the consideration money. If for any special reason the District Judge does not grant permission, then I shall return the amount taken as earnest-money. To this effect I execute this agreement of sale on receipt of Rs. 500 mentioned in the deed of agreement.' On the 28th July 1920 the guardian filed a position before the District Judge in which he stated that the minor had certain debts amounting to about Rs. 7,000 which it was necessary to pay. It was stated in the petition that the minor has got five old dilapidated houses used as sugar-factories at Kotchandpur and it was also mentioned that if these houses were sold then their price might come up to Rs. 16,500; that Srish Chandra Das was ready be purchase these properties at the said price of Rs. 16,500; and it was also mentioned that the guardian had taken Rs. 503 as earnest-money from the said Srish Chandra Das on the promise of selling the property to him after obtaining permission from the Court. On that application the District Judge asked for a report from the sheristadar who made a report which concludes thus: ' His this guardian's) prayer may be granted on condition he files proof of transaction and produces proof to the satisfaction of the Court that the balance has been profitably invested:' Then on the 31st July 1920 one Garabini Dassi appeared before the Court and prayed for time to file her written statement. This lady is the mother of the deceased adoptive father of the minor. Her petition was filed on the 7th August 1920 which came up for hearing on the 21st August next. The material part of the order with regard to this matter on the 21st August is this: ' Pleaders for the guardian and the objector heard. The petitioner's pleader stated that the intending purchaser is willing to purchase the property subject to the charge of maintenance. The intending purchaser to apply in Court to the effect that he is willing to purchase the property subject to the maintenance charge of Garabini Dassi to the property.' The intending purchaser is evidently the plaintiff.

3. It is apparent that the contracts executed by the guardian in favour of the plaintiff was not placed before the District Judge. The petition which, was Bled by the guardian did not state the jamas which he had contracted to sell, nor did he state that on each of the eight jamas there were brick-built factory houses.

4. Subsequent to the 21st August the guardian put in another petition before the District Judge on the 28th August 1920. It runs thus: 'On the last dado of hearing the Court was informed on my behalf that a purchaser was willing to buy the sugar-factory houses situate in Kotchandpur, with the charges thereon. As the purchaser made a statement to the aforesaid effect the Court was accordingly informed on my behalf. Now the purchaser says that he is not willing to purchase the said property with the incumbrences thereon. But Babu Srish Chandra Das of Kotchandpur is willing to buy one sugar-factory house at Solimanpur adjacent to Kotchandpur. I, therefore, pray that you will be pleased to pass an order granting permission to sell the aforesaid house at Solimanpur to the said purchaser, or in the alternative to pass an order for sale of the houses at Kotchandpur free from incumbrances for the purpose of clearing off the debts of the minor with the purchase money directing the balance to be invested in Government Securities for the benefit of the minor, subject to the declaration of the charge of the monthly allowance of Garabini Dassi upon the same.' The intending purchaser, that is to say, the plaintiff did not. appear before the District Judge in pursuance of the order of the 21st August. The learned District Judge passed the following order on the 28th August in the petition of the guardian: ' The petitioner puts in a petition today praying that permission be granted to him to sell a house at Solimanpur to one Srish Chandra Das for Rs. 4,500,' and it was ordered to be put up on the 30th August next. On the 30th August 1920 it was ordered: ' The opposite party puts in a petition today praying that if the petitioner be permitted to sell the property of Solimanpur that may be sold subject to her maintenance charge.' The opposite party here referred to is the lady Garabini Dassi. The learned Judge had then before him with regard to the proposal for sale of the property of the minor these facts, that a purchaser was willing to buy a sugar-factory at first, with charges thereon: on the 28th August the guardian stated that he was not willing to purchase the property with incumbrance; the plaintiff on that day expressed willingness to purchase another property for Rs. 4,500 which was not the subject of the suit; the guardian made an application either to sell the other property of Solimanpur or Kotchandpur properties which he first intended to Fell free from incumbrance; and it is, therefore, evident that the learned Judge had not to deal with any application of the guardian for sale which had been made prior to the 28th August 1920. Order was passed on the petition of 28th August 1920 on the 4th September 1920 and it runs thus :- 'Heard pleaders on both sides. Permission is granted to the guardian to sell the property originally mentioned in the petition. The sale proceeds after payment of debts shall be invested in six per cent. Government Loan and deposited with the Accountant-General, Bengal, subject to the maintenance charge of the objector. The charge is transferred from the property to the Government securities and the purchaser will get the property free of charge.' The evident meaning of this order is not that the Judge sanctioned the sale of the Kotchandpur properties to the plaintiffs for Rs. 16,500 free of the charge of maintenance of Garabini Dassi, but it was a general order given to the guardian to sell the property free from incumbrance according to the prayer made by him in the petition of the 28th August.

5. Then the following order appears on the 11th September 1920: ' One Tarini Kumar Dutta intending purchaser of the Kotchandpur property appears today and puts in a petition statins' that he is willing to purchase the property for Rs. 19,000. Heard the vakil for the petitioner. Let a proclamation be issued at once for the sale of the properties in auction-sale to the highest bidder fixing 18th September 1920 for sale by Nazir of the Court. Petitioner is prohibited from making any arrangement of sale with Srish Chandra Das.' Srish Chandra Das filed the suit for specific performance of contract on the 9th September 1920 in the Court of the Subordinate Judge of Jessore. On the 18th September this order is recorded by the District Judge; 'Srish Chandra Das puts in a petition praying that the sale may be postponed till the disposal of the Suit No. 519 in the Sub-Judge's Court, Jessore. Pleaders hoard. Prayer refused as permission to sell the property to the petitioner particularly was not granted. Nazir to sell the properties at once.' Subsequently there were bids before the Nazir. Defendant No. 7 Rasharaj Nandi offered the highest price Rs. 19,100 and apparently under the orders of the District Judge the guardian of the minor executed a conveyance in his favour of the Kotchandpur properties on receipt of Rs. 19,100.

6. The Defendants Nos. 1 to 7 contested the suit before the learned Subordinate Judge, but apparently the guardian of the minor considered that be was himself the defendant and his written statement shows that ha filed the written statement on his own behalf. Nothing, however, turns upon that. The Subordinate Judge has made a decree in favour of the plaintiff to this effect, that the suit be decreed in part; that plaintiff do deposit a sum of Rs. 18,600 in Court within 15 days from the date of the decree, that on plaintiff's depositing the money in Court Rati Kanta Shaha the father and guardian of Defendant No. 1 do get a kobala for the 8 jamas and the houses standing thereon registered.' It is unnecessary to recite the rest of the decree. The variance between the decree asked for by the plaintiffs and that made by the Court is this, that a jama mentioned in the agreement bearing rental of Rs. 9-12-0 was omitted and instead of the purchase-money being Rs. 16,500 which the plaintiffs offered to pay including Rs. 500 already paid as earnest money, it was increased to Rs. 19,100, that is, the sum for which the Defendants Nos. 2 to 7 have purchased the property.

7. A large number of issues were raised before the Subordinate Judge. But the arguments which have been addressed to us as regards the controversy between the parties were covered in the lower Court by Issues Nos. 5, 6, 9,10 and 11. The 5th issue runs thus; Is the bainama as alleged in the plaint duly executed with the permission of the District Judge of Nadia and is it a valid document? The Subordinate Judge found this issue in favour of the plaintiff. We must state at the outset that the agreement was not executed with the permission of the District Judge at all. It was executed in anticipation of the permission of the District Judge about 15 days prior to the date when the permission was asked for by the guardian for sale of the property. The 6th issue is this: Is the agreement aforesaid specifically enforcible against the minor? Has the plaintiff waived his right to have the agreement specifically enforced? This also the Subordinate Judge has decided in favour of the plaintiff. The 11th issue overlaps the question mentioned in the 6th issue which runs thus: Is the plaintiff's claim for specific performance maintainable especially against the minor in view of the order of the District Judge to sell the property in auction? The 9th issue runs thus; Was any permission granted by the District Judge of Nadia to Rati Kanta Saha to sell the property in question to the plaintiff? If so, was it revoked by the same District Judge? If revoked can the plaintiff claim any specific performance on the basis of such a permission? The 10th issue is, Is the order of the District Judge of Nadia for auction sale of the property in suit illegal and ultra vires? The learned Judge has decided all these issues in favour of the plaintiff.

8. The Defendants Nos. 2 to 7 have appealed against the decree of the Subordinate Judge. 1 he Defendant No. 1, the minor, has been made a respondent and there has been no appearance on his behalf. The plaintiff preferred a cross-objection with regard to the cum of Rs. 2,600 which is the excess amount which the Subordinate Judge directed him to pay over and above the sum entered in the agreement. But the learned vakil for the respondent has not very properly pressed the cross-objection on the ground that his pleader in the lower Court had consented to pay this sum in which the Subordinate Judge made his decree.

9. The points raised by the appellants are, first that there was no sanction by the District Judge for the sale of the proper ties to the plaintiff for Rs. 16,500, but that the order of the 4th September properly construed was only a general permission to the guardian to sell the property of the minor and not a permission to sell it to the plaintiff; and the original contract for purchase of the property for Rs. 16,502 was given up by the plaintiff on his being informed that the property was subject to the maintenance charge of Garabini Dassi. The second point; urged is that assuming that the permission by the learner Judge amounted to a permission to sell the property for Rs. 16,500 to the plaintiff, it was competent to the Judge to vary that order and give fresh directions on new facts, if he considered that it was for the benefit of the minor to do so. The third point pressed is that this is not a case in which specific performance of the contract should be granted because (a) it is against a minor, (b) that the discretion of the Court in granting specific performance should be exercised on the facts of this case against the plaintiff and (c) the decree of the Court below granting specific performance with the variation mentioned before is wrong in law. The fourth question urged is that Defendants Nos. 2 to 7 had purchased with the sanction of the District Judge after the District Judge had recorded the order that he had not granted any permission for sale to the plaintiff, and having done so he is a bona-fide purchaser against whom a decree for specific performance of the contract ought not to be granted.

10. We have set out all the orders of the learned Judge with regard to the permission relating to the sale of this property. It appears to us that the substance of the proceedings that the permission was asked for to sell five old dilapidated houses used as sugar factories at Kotchandpur for Rs. 16,500. The only objection that was raised before the learned Judge was with regard to the maintenance of Garabini Dassi. The Judge enquired whether the intending purchaser would accept the property subject to the encumbrance. He was informed that he was not so inclined. On the other hand it was stated before him that the plaintiff was desirous of purchasing some other property for Rs. 4,500 only and when Garabini Dassi again appeared and prayed that the other property should be sold subject to her encumbrance the learned Judge made the order that the more valuable property of Kotchandpur should be sold free from encumbrance and the maintenance charge was to be transferred from the property to the purchase money. We are of opinion that this could have only one meaning that the Judge made a fresh order on hearing that the intending purchaser of Kotchandpur had declined to purchase it subject to encumbrance for the price ha had offered. That the purchaser had so declined is also apparent from the evidence of Babu Lalit Kumar Chatterjee, a vakil practising at Krishnagore. He says: 'I know Srish Chandra Das...I remember that the District Judge told me to ask Srish Chandra Das whether he (Srish Chandra Das was agreed to purchase the properties in suit subject to the charge. Accordingly I asked him (Srish Chandra Das) in the ejlash (Court-room) of the Judge about the same and he informed me that he was not agreed to purchase the said properties subject do the charge, and accordingly informed the District Judge about the same.' There cannot be therefore any doubt that the plaintiffs' unwillingness to purchase the property subject to the charge came to the knowledge of the District Judge by the petition of the guardian on the 28th August and by the information given by Lalit Kumar Chatterjee, and we consider that the learned Judge was quite right when he interpreted his own order of the 4th September in his order of 18th September that the 'permission to sell the property to the petitioner particularly was not granted'. It was therefore, perfectly open to the Judge to ask the guardian to sell the property for the best value obtainable, and when he found that another purchaser, Tarini Kumar Dutta, appeared before him and offered to pay Rs. 19,000 for the properties in question, he naturally thought that the property was capable of fetching a higher value, and he directed the Nazir of the Court to issue a proclamation of sale of the properties to the highest bidder and at the same time he prohibited the guardian from making any arrangement of sale with Srish Chandra Das, probably because the intending purchaser, Tarini Kumar Dutta had mentioned it before the Judge that the guardian was going to sell the property to Srish Chandra Das. We are, therefore, of opinion that the District Judge was quite satisfied in not permitting the sale of the properties to plaintiff for Rs. 16,500, but to the man who offered the higher price Rs. 19,100, for the properties. The guardian appointed by the Court under the Guardians and Wards Act is prohibited under Section 29 of the Act from transferring any property of the minor without obtaining the previous permission of the Court and Section 31 enacts that the Court shall not grant any such permission to the guardian except in case of necessity or for an evident advantage of the ward. In granting such permission to the guardian it is the duty of the Court too see that the transaction confers the highest benefit to the minor.

11. It is contended before us that the evidence shows that Rs. 16,500 is much mote than the proper value of the property and that is what the plaintiff promised to pay. The plaintiff has given evidence for the purpose of proving that Tarini Dutta and other purchasers did not offer anything like the value which the plaintiff promised to pay when the guardian approached them for selling this property. It is urged on behalf of the respondent that because the defendants are rival merchants of the place they offered more than the legitimate price of the property in order to do some harm to the plaintiff. Assuming that to be so we are of opinion that the motive of the defendants for offering higher value for the property is perfectly immaterial. If on account of the competition between the purchasers the minor gets a higher value for the property which wars intended to sell it is not the business of the District Judge to enquire into the motive which led the rival purchasers to offer higher bids. It is to the advantage of the minor that there should be competition.

12. Exception has been taken to the procedure of the learned District Judge in directing issue of proclamations of sale and directing the nazir to sell the property. It is urged that the District Judge had no jurisdiction to make such an order and the Subordinate Judge holds that the order of the District Judge is ultra vires by which we think he means that it was without jurisdiction. But the real matter is that the District Judge was not making any order superseding the authority of the guardian. It is for the sake of convenience only, and for the purpose of finding a purchaser who would offer the highest value for the property, that he directed that procedure to be followed. His evident intention was that after finding a purchaser who would pay the highest value he would grant permission to the guardian to sell the property to such purchaser. The guardian did not complain about it. We do not find that there is anything wrong in the procedure that the learned Judge followed, nor do we consider that it was made without jurisdiction. Assuming for the sake of argument that this order of the learned Judge was not according to law, we consider that his order is final. Under Section 48 of the Guardians and Wards Act which Jays down that save as provided by Section 47 which gives the right; of appeal against certain orders and by Section 115, Civil P.C., that is the section authorizing this Court to interfere in revision, an order made under this Act shall be final and shall not be liable to be contested by suit or otherwise. These orders, therefore, of the learned Judge cannot be contested as illegal in the present litigation.

13. Having regard to the opinion we have expressed as regards the nature of the permission granted by the learned Judge, We do not consider it necessary to give any detailed judgment with regard to the various other questions raised. But we ought to state the argument advanced by the learned vakils and the various authorities on which they have relied in support of their contentions. With regard to the right to obtain specific performance of a contract against a minor, appellants urge that assuming that such a contract is enforcible in law the Court must see whether the contract is for the minor's benefit and where it is clearly not so the Court would be justified in rejecting the claim for specific performance. This has been laid down in the case of Jugal Kishori Chowdhurani v. Anunda Lal Chowdhuri (1895) 22 Cal. 545 where the learned Judges observe: ' No Court would, even if it could, make a decree for the specific performance of a contract affecting an infant unless the contract was shown to be for the infant's benefit.' Reference has also been made to the case of Chhitar Mal v. Jagannath Prasad (1907) 29 All. 213, where a contracts was entered into with the permission of the District Judge, but when the District Judge found that the price for which the property was sought to be sold was one hundred rupees less than the price offered by another purchaser, he granted permission to sell the property of the minor to the person who offered the highest value. The learned Judges did not go into the question whether the District Judge had the power to act as he had done, but they refused specific performance of the contract on the ground that it was manifest that if the plaintiff appellant succeeded, the result would be a loss of at least a hundred rupees to the minor, The learned Judges proceeded thus: ''We think that Courts in this country as in England will not allow a bargain made by an improvident guardian to be enforced against the interests of the minor, if it be shown to be a bargain made to the detriment of the minor.' Reliance has been placed by the learned vakil for the respondent on this passage, and it is argued that in the present case it is not the bargain of an improvident guardian but a, guardian entering into the contract for the best value he could obtain. The answer to that is that it is not the question whether the guardian acted properly or not, but the real question is what would be for the benefit) of the minor, and as it is clearly against his interest to enforce the contract, it seems to us that on that ground also this contract cannot be enforced specifically, even assuming that the contract was entered into with the permission of the Distrust Judge, which assumption, however, there is nothing on the record to support.

14. Attention has also been drawn on behalf of the appellants to the case of Nagardas Vachraj v. Anandrao Bhai [1907] 31 Bom. 590, where the learned Judge deciding the case held that it is always open to the Judge to revise orders made in chambers on ex parte applications if he considers that should be done. It is argued on behalf of the respondent that the order in the present' case was made upon a contested application. There is no room to suppose that it is so. The only objector was the grandmother who asked for safeguarding her charge of maintenance. Apparently she was not concerned with regard to the value of the property for which it ought to be sold; and if the Judge makes an order on the representation of a statutory guardian for sale of the property of his ward for the value suggested by the guardian, he may withdraw that order if it is brought to his notice that a higher value can be obtained for the minor's property than the value for which the guardian was going to sell it. It may not be due to the guardian's improvidence; it may be due to his inability to find proper purchasers with his best endeavours to do so that he suggested a lower value.

15. The learned vakil for the appellants relied upon the case of Mir Sarwarjan v. Fakhruddin Mahomed [1912] 39 Cal. 232 for the proposition that such a contract cannot be enforced. He relies upon the following observations of their Lord' ships of the Judicial Committee: They are however, of opinion that it is not within the competence of a manager of a minor's estate or within the competence of a guardian of a minor to bind the minor or the minor's estate by a contract for the purchase of immovable property, and they are further of opinion that as the minor in the present case was not bound by the contract, there was no mutuality, and that the minor who has now reached his majority cannot obtain specific performance of the contract.' Although their Lordships refer to a contract for purchase on behalf of the minor it is contended that the rule laid down by their Lordships is not confined to a con-tract for purchase only but to contracts for sale also. With regard to this proposition there have been some cases in India in which it has been held that that case is confined to a contract for purchase e.g., the case of Innatunnessa Bibi v. Janaki Nath Sircar [1918] 22 C.W.N. 477. The learned Judges, one of us being a party to the judgment, held that in that case the agreement was clearly for the benefit of the minor, and the guardian of the minor who had entered into a contract of sale did so with the sanction of the District Judge under the Guardians and Wards Act, and so specific performance of the contract was held to be enforcible against the minor. In the case of Babu Ram v. Saidunissa [1913] 35 All. 499, the learned Judges held that the Privy Council case mentioned above does not apply to a guardian appointed by Statute and they held that certificated guardian's powers are regulated and defined by Statute. In that case also the contract was entered into by the certificated guardian after receipt of the Court's sanction. That suit was not a suit for specific performance of the contract and it is, therefore, really no authority with regard to the question now before us.

16. Another case has been cited on behalf of the respondent Walidai Khan v. Janak Singh [1913] 35 All. 370: That case, however, has no bearing on the question, because in that case a suit was brought by the plaintiffs some of whom were minors who had purchased certain property and paid the price for it, they had been afterwards dispossessed by another person having a superior right. The plaintiff sued for refund of the purchase-money. It was held that they were so entitled. Having regard to our findings that here the alleged agreement had not been entered into by the guardian with the permission of the Court and the Court never granted any permission to the guardian to sell the properties to the plaintiff for the price offered by him, it is not necessary for us to give any decided opinion on the question whether the suit for specific performance of a contract for sale entered into by the guardian of the minor's property with the permission of the Court is maintainable or not. There is no doubt whatever that if a sale is effected with the permission of the District Judge it is a good sale, but when the matter only remains under contract whether the District Judge may authorize the guardian not to complete the sale under certain circumstances and if he does so, whether the guardian can be compelled to perform the contract specifically or not, is a question which we leave open for decision.

17. With regard to the contention of the appellant that specific performance with variation of the contract made in the decree of the Subordinate Judge is erroneous, we are of opinion that that contention should be upheld. A contract can be specifically enforced with variation under certain circumstances only which are given in detail in the Specific Relief Act. Here a variation has been made on the ground that the petition of the guardian for permission did not mention a jama which had been omitted from the decree. It may be urged very reasonably that the whole contract not having been placed before the Judge for his sanction, but only a part of it, any permission granted on that petition cannot relate to the contract in suit. The order of the Subordinate Judge that the plaintiff should pay Rs. 2,600 in excess of the price agreed upon is also wrong in law.

18. With reference to the last point urged that the Defendants Nos. 2 to 7 had purchased the property with the sanction of the District Judge after the order of the District Judge had been recorded that he had not sanctioned the sale to the plaintiff, no decree for specific performance should be passed as against them. We are of opinion that that is also a sound contention. Whether they can be considered as bona fide purchasers for value without notice or not, they can rely upon the order of the District Judge as having been correctly made, and under such circumstances the Court would not be justified in granting a decree for specific performance in the exercise of its discretion against such purchasers.

19. We have dealt with all the grounds urged before us and, in our opinion this appeal should be allowed and the plaintiff's suit dismissed with costs in this Court and in the Court below.

20. There is one matter which was not pressed before us, but we think we should make an order regarding it. The plaintiff would be entitled to get the Rs. 500 which he had paid to the guardian as earnest' money. This sum was deposited by the guardian in the Court below and the guardian in his written statement has alleged that he had offered to pay the money to the plaintiff but he had refused to take it. This money, we are informed is still in deposit in Court. The plaintiff will be entitled to take out that amount. The sum which the plaintiff may have deposited in Court in pursuance of the decree of the lower Court he will be also entitled to withdraw.

21. The plaintiff-respondent will pay the costs of the appellants in this Court. The cross-objection is dismissed without costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //