INDIRA BAI Vs. PARASHURAM KALLAPPA HANDE

JUDGEMENT

(1.) The appellant was the plaintiff in O.S.No.75/72 before the Court of the II Additional Civil Judge, Belgaum, for a decree for specific performance of an agreement on the part of the defendants to sell the suit property. The suit property is a shop building situated at Kirloskar Road, Belgaum City, bearing CTS.No.1766 measuring 226 sq. yards with a backyard and a right to use privy and well in an adjoining property. The 2nd defendant who is also the second respondent in this appeal has been carrying on a cold drink house under the name and style

(2.) On 17-7-1972 plaintiff gave a notice to defendant-1 through her lawyer that she was ready and willing to perform her part of the contract but at the same time intimating him that some of the conditions in the agreement are void and inoperative. When defendant-1 sent his reply dated 19-7-1972 informing her that he was ever willing to act according to the terms of the agreement the lawyer of the plaintiff sent a cheque for Rs. 8,500/- to the first defendant's lawyer for being paid to defendant-1 and this offer included consideration amount of Rs. 8,000/-and that Rs. 500/ towards expenses of stamp and registration etc. Though she waited till the last date of the period fixed for performing the contract the first defendant never came forward to perform his part of the contract.

(3.) According to her the suit agreement contains reciprocal promises and it can be severed into two parts, namely, one to do a legal act and the other an illegal act. The first part relating to payment of consideration of Rs. 8,000/- is quite proper and valid. She attacks the remaining entire part of the agreement as being illegal and void, namely, there is no reference in the agreement as to why she should pay Rs. 3,000/- to defendant-1 and on this account itself the agreement is void for want of consideration. Secondly, it violates Section 4 of the Mysore Rent Control Act (as the Rent Control Legislation then stood) inasmuch as confirmation of a tenancy without the permission of the Rent Controller is forbidden and therefore Section 23 of the Contract Act makes it invalid. Violation of Section 4 is met with penalty. Thirdly, the stipulation that defendant-1 should enjoy the suit property as a tenant under plaintiff-1 at a fixed rent of Rs. 60/- per month and also for such period as he likes is a clog or prohibition depriving the plaintiff from ever getting back possession of her property thereby defeating the provisions of Section 21 of the same Act. This creates interest in defendant-1 absolutely and the restriction operates as a clog on the property which is free and transferable. It smacks of a perpetual lease.