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Shama Charan Kotal Vs. Kumed Dasi - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in42Ind.Cas.378
AppellantShama Charan Kotal
RespondentKumed Dasi
Cases ReferredSurbesh Chandra Basu v. Hari Dayal Singh
Excerpt:
specific relief act (i of 1877,), section 14 - specific performance, suit for-contract to sell share of joint family property by one member. - .....declined to execute the conveyance. on the 7th may 1913 the plaintiffs instituted this suit for specific performance of this contract. the first defendant, the appellant before us, did not enter appearance. the other three defendants contested the claim principally on the allegation that they had not signed the petition of compromise and were in no way bound to sell the property. the courts below have concurrently found that the negotiations were carried on by the first defendant, that at the time the petition of compromise was executed the other defendants were not present and that the first defendant, who is the head of the joint family composed of all the defendants, put down his own signature as also the names of the other defendants. on these findings the courts have concurrently.....
Judgment:

1. This is an appeal by the first defendant in a suit for specific performance of a contract for sale of land. The contract is embodied in a petition of compromise, presented to the Court in a previous litigation between the parties, which related to a different subject-matter. The settlement was made on the assumption that the defendants would convey to the plaintiffs, one-fourth share of the property in dispute. The decree was made accordingly but the defendants have declined to execute the conveyance. On the 7th May 1913 the plaintiffs instituted this suit for specific performance of this contract. The first defendant, the appellant before us, did not enter appearance. The other three defendants contested the claim principally on the allegation that they had not signed the petition of compromise and were in no way bound to sell the property. The Courts below have concurrently found that the negotiations were carried on by the first defendant, that at the time the petition of compromise was executed the other defendants were not present and that the first defendant, who is the head of the joint family composed of all the defendants, put down his own signature as also the names of the other defendants. On these findings the Courts have concurrently held that as the first defendant had no authority to enter into an agreement with the plaintiffs for the sale of the shares of the other defendants, the latter cannot be held bound by the decree and specific performance cannot be decreed as against them. The propriety of this view has not been challenged before ns. The Courts below, however, have disagreed upon one fundamental point. The first Court held that although the first defendant was a party to the contract, it could not be specifically enforced against him, because the contract was alleged to have been made with all the four defendants, as regards three of whom it was clearly unenforceable. On appeal, the District Judge has held that as the first defendant is prima facie entitled to a four-annas share of the property, and is in a position to perform the agreement to that extent, there should be a decree for specific performance in respect of that share. The District Judge has further directed an enquiry as to the extent of the share of the first defendant and the steps to be taken, if the share should turn out to be less than four annas. The first defendant has now appealed to this Court and has urged, first, that the suit should be dismissed as against him, and, secondly, that at any rate a decree for specific performance cannot be made against him to a larger extent than one-anna share of the property in dispute. In our opinion, there is no foundation for either of these contentions.

2. On behalf of the appellant reliance has been placed upon the case of Price v. Griffith (1851) 1 De G. M. & G. 80: 21 L. J. Ch. 78: 15 Jar. 1092: 42 H. R. 482: 18 L. T. (o. s.) 190: 91 . R. 37. where Knight Bruce, L. J., laid down the law as follows:---'Cases may be conceived where a person, who has contracted to convey more than it is in his power to convey ought to be decreed to convey what he can, either with or without compensation to the vendee for such part of the subject matter of the contract as the vendor is unable to convey.' He explained and added that such a decree could not Be made in the ease before him, because, in that case, there was no evidence of improper conduct or misrepresentation or of the defendant's having held himself out as capable of contracting for the whole, or, in fact, any other circumstance constituting a ground for a decree as to one undivided share alone. This case was followed in Surbesh Chandra Ram v. Hari Dayal Singh 5 Ind. Cas. 236: 11 C. L. J. 346: 14 C. W. N. 451. where the law was summarised in these terms: 'No rule of universal application however can be laid down in cases of this description, Hexler v. Pearce (1900) 1 Ch. 341: 69 L. J. Ch. 146: 82 L. T. 109: 48 W. R. 330: 16 T. L. R. 94. but in the absence of misrepresentation or misconduct the general rule is that where a person is jointly interested in an state with another person and purports to deal with the entirety, specific performance will not be granted against him as to his share. Lumley v. Ravenscroft (185) 1 Q. B. 683: 64 L. J. Q. B. 441: 14 R. 347. 72 L. T. 882: 48 W. R. 584: 59 P. J. 277, The case of course 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.' The case before us clearly falls, not within the general rule, but within the exception. The first defendant professed to enter into a contract on his own behalf as also on behalf of the other defendants. They were members of a joint family of which the first defendant was the head. Assume that the first defendant acted honestly and believed that he had authority to bind his co-sharers by this agreement. But the result has proved otherwise. This, however, cannot affect the rights of the plaintiffs. They accepted the contract on the faith of the assurance that the first defendant was competent to bind the property held by himself and his co-sharers. The first defendant, it turns out, is not in a position to bind his co-sharers, but his own share is large enough for the purposes of completion of the contract made by him with the plaintiffs. In such circumstances, it would be wrong to hold that the first defendant can escape from his obligation merely because he has acted in excess of his authority and is not in a position to bind his co-sharers. Reference has been made to the decisions of the Madras High Court in Govinda Naickan v. Apnthsahay Iyer 13 Ind. Cas. 471: 37 M. 403: (1912) M. W. N. 87: 11 M. L. T. 87: 23 M. L. J. 267. and Juturi Nagiah v. Ariparala Vencatrama Sastrulu 15 Ind. Cas. 623: 37 M. 387: 14 M. L. T. 199. These cases are, however, clearly distinguishable They were cases of contract by members of a joint Mitakshara family, and specific performance was refused, not merely as to the whole but also in respect of a share, on the obvious ground that if specific performance were decreed, the result would be a violation of law. The same doctrine was applied by this Court in the case of Surbesh Chandra Basu v. Hari Dayal Singh (3), where specific performance was refused as against the guardian of an infant, because the result of the decree for specific performance would be that the guardian would be obliged to act in contravention of the authority of the Court which had appointed him; on the other hand if he refused to act, he would be guilty of contempt of the Court which made the decree for specific performance. Such considerations have no application to the circumstances of this case. We hold accordingly that the decree made by the Court below is just and proper. We direct, however, that so much of the decree as directs an enquiry in execution as to the extent of the share of the first defendant and a possible refund of a proportionate amount of the consideration to the plaintiffs be expunged. The decree will direct specific performance of the contract for sale to the plaintiffs in respect of the one-fourth share of the property in suit. Subject to this variation, the decree of the Court below is affirmed and this appeal dismissed with costs.


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