DURGI Vs. BHAGWAN DAS

JUDGEMENT

(1.) This is a plaintiff's second appeal in a suit for specific performance of a contract for re-conveyance of a plot of agricultural land. The plaintiff had sold the land to the defendants nos. 1 and 2, who are brothers and are respondents Nos. 1 and 2 in this Court, on 4. 6. 1963 for Rs. 500/ -. The agreement for re- conveyance of the land was made simultaneously by the first defendant on his own behalf and on behalf of the second defendant, who was a minor at that time, as his guardian. According to the plaintiff's case, it was agreed that if the re-conveyance was required to be executed during the minority of the second defendant-respondent, the first defendant-respondent would take the necessary permission and execute the sale deed on his behalf; but if it was required to be executed when the second defendant attained majority, he, the first defendant-respondent, would get the same executed by the second defendant-respondent. According to the further case of the plaintiff, the first defendant-respondent executed a sale deed on 30-l2-1966 of his 1/2 share in the land for the consideration of Rs. 300/- and promised that when the second defendant-respondent became a major, he would get the sale deed of his share also executed by him for the balance consideration of Rs. 200/ -. The suit was instituted on 17th August 1974, on the further allegation that the second defendant had now attained the age of 20 years and the plaintiff had repeatedly asked the defendants to execute the sale deed in his favour of the remaining 1/2 share for the balance consideration of Rs. 200/-and in spite of a notice served by the plaintiff, the defendants did not agree to do so, hence the suit. It also appears that after the institution of the suit, the defendants Nos. 4 and 5 had obtained a sale deed on 4-12-1974 of the land in suit from defendant No. 3, who were impleaded thereafter, with full knowledge that the defendant no. 3 had no title to the land. The defendants Nos. 1 and 2 field separate written statement denying the plaintiff's claim. One of the pleas raised by the second defendant was that the first defendant had no right to agree to execute a reconveyance for and done so, it was illegal and not enforceable against the second defendant. The defendants Nos. 3, 4 and 5 filed a joint written statement. According to these defendants the plaintiff became Bhumidhari of only 1/4th share in the land in suit by the sale deed dated 30-12-1966 executed by the first defendant in favour of the plaintiff and the third defendant, who is the plaintiff's brother. The plaintiff's right to sue was also denied. It was added that the sale deed executed by the third defendant in favour of defendant Nos. 4 and 5 was in respect of his 1/4th share. The only substantial issue on which the parties went to trial was whether defendant No. 2 is liable to recovery 1\2 share as alleged by the plaintiff. The trial Court found the plaintiff's case to be true and decreed the suit. On appeal the lower appellate Court raised the following questions for consideration: - "1. Whether the defendant No. 2 was not a real purchaser ? "2. Whether the defendant No. 1 had agreed for self and of Nathu Ram to reconvey the property on payment of Rs. 500. 00 ? "3. Whether the defendant No. 1 was legal guardian of defendant No. 2 and if so is the agreement entered into by him binding on the minor ?" According to the lower appellate Court the second defendant Nathu Ram's mother was alive and merely because at the time of the conveyance of the property by the plaintiff the consideration was paid to him by the first defendant Bhagwan Das, who is the elder brother of the second defendant Nathu Ram, it could not be said that Nathu Ram had no interest in the amount of the sale consideration; and that the plaintiff had not shown that the "minor's share of the consideration did not come from the mother. "on an analysis of the plaint case and the facts and circumstances, the lower appellate court found that the second defendant Nathu Ram was a real purchaser of the property under the sale deed dated 4-6-1963, of course, along with the first defendant Bhagwan Das. It also found, in agreement with the trial Court, that there was an agreement between the parties that the property would be re-conveyed to the plaintiff on payment of Rs. 500/ -. But, on the last point, raised by it, the lower appellate Court held that the first defendant being the brother of the second defendant, was not the latter's natural guardian and that the mother and natural guardian of the second defendant being alive, the first defendant could at best be a de facto guardian and had no authority to act on behalf of the minor. Further, the powers of the natural guardian and the de facto guardian were restricted by Sections 8 and 11 of the Hindu Minority and Guardianship Act, 1956. Under Section 11, a de facto guardian was not entitled to dispose of or to deal with the minor's property. Further, according to the lower appellate Court, the statement in the sale deed that the first defendant was acting as the second defendant's guardian, was not true. Finally, according to the lower appellate Court, although the conveyance of the property in favour of the minor was valid even if he was not represented by any guardian at all, the first defendant was neither the lawful guardian of the minor second defendant nor was he entitled to enter into any agreement for sale of the property on behalf of the minor; and that the agreement was, therefore, not binding on the second defendant. In the result, the lower appellate Court allowed the appeal and dismissed the suit. Learned counsel for the plaintiff-appellant urged before me that the lower appellate Court has proceeded on a mis-apprehension of the true posi tion with regard to the sale made by the plaintiff on. 4. 6. 1963 in favour of the defendants No. 1 and 2 and the simultaneous agreement made by the first defendant for re-conveyance of the property. According to the learned counsel for the plaintiff- appellant, the plaintiff would not have sold his pro perty to the defendants Nos. 1 and 2, through the first defendant, who alone was the contracting party with the plaintiff, unless the first defendant had simultaneously agreed to reconvey the property to the plaintiff for the very same amount of the consideration, viz. , Rs. 500/ -. The second defendant could not approbate and reprobate. He could not take the benefit under the sale and at the same time deny the condition subject to which the sale was made. In support, the learned counsel relied on the cases of Gujoba Tulsiram v. Nilkanth and another (A. I. R. 1958 Bom. 202), and Ganga Singh and another v. Santosh Kumar and another (A. I. R. 1963 Alld. 194 Para. 27 ). Having read these cases and having heard learned counsel, I am of the view that the appeal must succeed. Although, it may not be possible to say that the first defendant purchased the land in his own name and in the name of his minor brother, defendant No. 2, under the sale deed dated 4. 6. 1963, as Karta of his joint family, for it is not possible to import the Mitakshara Hindu law of Joint family in respect of agricultural land governed by the provisions of the U. P. Zamindari Abolition and Land Reforms Act, yet the minor, the second defendant, could obtain the benefit of the sale in his favour only subject to the contract of re-conveyance entered into by the first defendant for himself and on behalf of the minor; for, if the first defendant had not entered into that contract for re-conveyance, the plaintiff would not have sold the property. The sale and the contract for reconveyance were simultaneous, though separate. One was subject to the other. If the minor took the benefit of the sale, he must also make good the promise on the faith of which the sale was made. In case he chose to repudiate the contract, he must return the benefit taken under the sale and that would lead to the same result as the specific performance of the contract. However, I am not very clear in my mind as to now the balance consideration for 1/2 of the property, agreed to be reconveyed, has been assumed to be Rs. 200/- only by the trial Court. The sale was for Rs. 500/- and in the absence of any specification in the sale deed it must be presumed that the contribution of the two defendant Nos. 1 and 2 towards the sale consideration of Rs. 500/-was equal and in this way I think the plaintiff must be required to pay Rs. 250/- to the second defendant notwithstanding that he has already paid Rs. 300/- to the first defendant for reconveyance of 1/2 share in the property by the latter. I accordingly allow the appeal, set aside the judgment and decree of the lower appellate Court and in modification of the trial Court's decree, the suit for re-conveyance of 1/2 share of the second defendant in the land in suit is decreed subject to the deposit of the sum of Rs. 250/-by the plaintiff in the executing Court within 3 months from the date of this judgment. In case the amount is so deposited, the second defendant shall within a further period of a month thereafter execute a sale deed of his j/2 share in the land in suit in favour of the plaintiff, have it registered and put the plaintiff into possession of the same. The costs of the execution and registration of the sale deed including stamp duty etc. , shall be borne by the plaintiff. In case the second defendant fails to do so, the plaintiff shall be entitled to have the same done by the executing Court by putting the decree into execution. The plaintiff shall be entitled to his costs throughout from the second defendant. The defendants shall bear their own costs. In case the plaintiff has already deposited the sum of Rs. 200/- in pursuance of the trial Court's decree and the amount continues to remain in deposit, the plaintiff shall be entitled to adjust that amount in complying with the aforesaid direction for depositing the sum of Rs. 250/ -. After the sale deed has teen executed, the amount of deposit shall be paid over to the second defendant after setting off the plaintiff's costs decreed against him. In case the plaintiff fails to make the deposit in accordance with these directions, the suit shall stand dismissed with costs throughout. .