SATYA NARAIN MISRA Vs. MAHABIR PRASAD

JUDGEMENT

(1.) DEOKI Nandan, J. This is a defendant's second appeal in a suit for specific performance of a contract dated 8th December 1952, for recon veyance of a house on payment of such sum as the Court may determine. The trial Court decreed the suit against the first defendant Har Pratap Singh, the first appellant in this Court, directing him to execute and get regis tered a sale-deed of a property in suit in favour of the Plaintiffs and defen dants Nos. 3 to 13, on payment of Rs. 1324/-by the plaintiffs to him at the time of the execution and the registration of the sale-deed, the expenses there of being borne by the plaintiffs. The Plaintiffs were also awarded the costs incurred by them against the first defendant who was directed to bear his own costs. The first defendant was further directed to pay the amount of Court-fees payable on the plaint, for the plaintiffs had been permitted to sue in forma paupers. No time was fixed for payment of the amount of Rs. 1324/- by the plaintiffs or for the execution of the sale-deed. It was ordered that if the defendant No. I failed to execute and register the sale-deed, the decree will be carried into effect by the Court. The copy of the decree was ordered to be forwarded to the Collector, Allahabad, under Order 33, Rules 10 and 14, of the Code of Civil Procedure. The first defendant Har Pratap Singh and the second defendant Girdhar Singh appealed to the district Court. The appeal was partly allowed and the decree of the trial Court was modified by ordering that the plaintiff-respondents shall pay the sum of Rs. 5, 484/- instead " of Rs. 1324/- to the defendant-appellant No 1 at the time of the execution and registration of the sale-deed by him, and that plaintiff-respondents shall be entitled to 3/4th of the Court-fees payable in the trial Court, the remaining amount being made payable by the plaintiffs. The first two defendants have appealed to this Court from that decree, and have prayed that the suit may be dismissed with costs throughout. According to the plaint, the first plaintiff was born on 10th April, 1948, according to the birth register, but in his school, the date of birth was record ed on 13th March, 1949. His age was about 19 years when the suit was insti tuted by presentation of the application for leave to sue forma paupers on the 10th August, 1967. The date of birth of the second plaintiff was 10th October, 1949, according to the birth register but it was entered as 1st July, 1951, in his school. His age was thus less than 18 years and he, accordingly sued through the first plaintiff as his next friend. The first plaintiff is the uncle of the second plaintiff, who is the son of Gaya Prasad, first plaintiff's elder brother. The first plaintiff Satya Narain was the yongest among seven brothers. Their father Mahavir Prasad is the third defendant. The eldest among the seven sons of Mahavir Prasad. Sukhdeo Prasad, was impleaded as defendant No. 4 and the others, impleaded in order of their age, were Gaya Prasad as defend ant No. 3 Hira Lal as defendant No. 6 Jawahar Lal as defendant No. 7, Nand Lal as defendant No. 8 and Gopal Lal alias Jhabbu Lal as defendant No. 9 Narbada Prasad son of Sukhdeo Prasad was impleaded as defendant No. 10, Gaya Prasad's first son Kallu alias Gopal Das being the scond plain tiff, his second son Sudama, then a minor aged about eight years, was imple aded as defendant No. 11 Jawahar Lal's minor son Bhola, then aged about six years, was impleaded as defendant No. 12 and Nand Lal's minor son Bablu, then aged about five years, was impleaded as defendant Nlo. 13. The following was the plaintiff's case: Kali Charan was the father of Mahavir Prasad, the defendant No. 3. The house, for the reconveyance of which the suit was filed, was the Hindu Joint family property of Kali Charan and Mahavir Prasad, and on the death of Kali Charan, it descended to Maha vir Prasad who became Karta of the Hindu Joint Family which included the Plaintiffs. On 22nd June, 1948 the said Kali Charan, his son Mahavir Prasad defendant No. 3 for self and as the Karta of his family consisting of Hira Lal, Jawahar Lal, Nand Lal and Jhabbu Lal alias Gopal, minors, and Sukhdeo Prasad and Gaya Prasad who had attained majority by then, sold the house in favour of the second defendant Girdhar Singh for Rs. 3. 000/- for legal necessity and payment of antecedent debts. The same day, an agreement of tenancy of the house on payment of Rs. 22/8 was also executed in favour of the second defendant Girdhar Singh, and Girdhar Singh in his turn executed an agree ment to reconvey the house to the said executants of the sale-deed within ten years. It was pleaded that the said agreement was in favour of the first plaintiff also, as Mahavir Prasad and Gaya prasad had obtained the agree ment as his representatives. Kalicharan died thereafter and when a period of 5-1/2 years had gone by since that agreement dated 22nd June, 1948. Maha vir Prasad for self and as Karta of the family consisting of Jawahar Lal, Nand Lal, Jhubbu Lal alias Gopal Lal, and the first plaintiff Satya Narain, who were minors at that time; along with Sukhdeo Prasad for self and as the father and guardian of Narbada Prasad (minor); Gaya Prasad for self and as the father and natural guardian of the second Plaintiff Kallu alias Gopal Lal, and Hira Lal executed on 8th December 1952, alongwith the second defendant Girdhar Singh, a sale-deed of the house in favour of the first defendant Har Pratap Singh for a consideration of Rs. 8,000/ -. The same day an agreement of tenancy on payment of Rs. 60/- per month was executed in favour of Har Pratap Singh, by the sellers; and Har Pratap Singh, the first defendant, in his turn executed an agreement of recon-veyance In favour of the sellers, agreeing to re-sell the house of them within three years. The agreement was in favour of the plaintiffs also as Mahavir Prasad and Gaya Prasad had acted as the representatives of the two plaintiffs. The rent amounting to Rs. 300/- for the period of 8th December, 1952 to 7th May, 1953. at the rate of Rs. 60/- per month was said to have been paid to the first defendant and decrees for recovery of the rent for subsequent period of 8th May, 1953 to 20th October, 1956, were said to have been obtained by Har Pratap Singh. It was then alleged that on 20th October, 1956, he, along with the second defendant, and others forcibly demolished and destroyed the entire house, which was rendered unfit for habitation. It was said that the sister of the second plaintiff was injured in the said incident and she was even insulted and the chain on her neck was forcibly pulled. The first plaintiff's sister and mother were also alleged to have been hurt and insulted and his brothers were alleged to have been injured by lathis and the goods in the house were alleged to have been broken and destroyed and thrown away, as a result of which the plaintiffs and the members of their family lay on the road. The incident led to criminal proceedings and the case was committed, to Ses sions. The first defendant and his 12 associates were convicted and sentenced to imprisonment and fine. The first plaintiff's sister filed a suit for damages for insult and injury against the defendant Nos. 1 and 2 and their relatives and a decree of Rs. 1000/- was passed in her favour whom was confirmed by the appellate Court. The other ladies were also said to have filed other suits for damages but the same were said to be pending in the High Court at that time. It was then alleged that the first defendant was not entitled to any rent because of the destruction of the house since 20th October, 1956. With regard to the agreed consideration of Rs. 8000/- for the agreement of reconveyance, it was alleged that there was no question of payment of it at all because of the des truction of the property by the first defendant and the expenditure on its recons truction, repairs etc. , which the members of the plaintiffs' family had to obtain by begging, and the financial assistance rendered by certain well-known political leaders, which expediture was in no case less than Rs. 8000/ -. It was pleaded that the first defendant had thus forfeited the right to receive the amount of Rs8000/- which must be deemed to have been adjusted in the manner aforesaid. It was then contended that the agreement dated 8th Deecmber, 1952 executed by the first defendant, was in favour of the plaintiffs' joint family, although it included only the names of the Kartas and that the agreement enures for the benefit of the plaintiff as well. Mahavir Prasad and Gaya Prasad were the Kartas of the joint family and they executed the agree ment dated 8th December, 1952, in that capacity for and on behalf of the plaintiffs and for their benefit and the names of the plaintiffs were specifically shown in the sale-deed dated 8th December, 1952. The plaint proceeds on to state that the plaintiffs were filing the suit acknowledging the three documents executed thusday, for the enforcement of the contract of sale against the first defendant, under the agreement dated 8th December, 1952 in their favour of the members of their family, without payment of Rs. 8000/- or any rent, or on payment of Rs. 1000/- only as the value of the land, or on payment of such amount as may be determined by the Court, in view of the facts, law and justice. It was also said that the plaintiffs were ready to pay the amount of consideration which the Court may determine to be payable by them under the agreement dated 8th December, 1952. The plaint then proceeds on to allege that when the first plaintiff attained majority he went along with some respec table persons to the first defendant and demanded the execution of the sale-deed on the basis of the agreement dated 8th December, 1952, but he refused. It is then alleged that after the sale-deed of 1952, when the first plaintiff's maternal uncle came to know that the only residential house of the family had been sold and the property was going out of the family, he came and made inquiries and the first plaintiff's education etc. were entrusted to other relatives and after the destruction of the house on 20th October, 1956, the members of the family became property- less and eked out their living by begging, and the plaintiffs' father and uncle were declared to be paupers in different suits. The bar of limitation was sought to be avoided by leading that the plaintiffs were minors when the three years' period fixed by the agreement dated 8th Decem ber, 1952, expired on 8th December, 1955, and since the first plaintiff was still less than 21 years of age, and the second plaintiff was still below 18 years of age, the suit filed by them, was within limitation. The suit was instituted in forma paupers as the plaintiffs alleged that they had no means to pay the Court fees of Rs957-50 payable on the plaint. The sale of the house on 22nd June, 1948, in favour of the second defen dant Girdhar Singh and on 8th December, 1952, in favour of the fiist defen dant Har Pratap Singh and the execution of the agreement of tenancy for 11 months on payment of Rs. 60/- per month as rent and the agreement to reconvey the property within three years by the first defendant, were admitted. The rest of the plaint allegations were denied. It was asserted that the crimi nal case resulted in the acquittal of the defendants on appeal. The fact of the decree in favour of Maya Devi was admitted but it was asserted that the suit filed by the other women Bhutto and Gulabo Devi, was dismissed. The plaintiffs' status and rights as members of the family were admitted but their claim that they were or could be regarded the owners of the house, was specifically denied. The allegation about the demand for execution of the sale-deed was specifically denied as false. It was pleaded that the value of the house was not less than Rs. 20. 000/- or Rs. 25. 000/- and that the plaintiffs had no cause of action and were not entitled to any relief. The antecedent facts leading up to the sale made on 8th December, 1952, in favour of the first defen dant were then pleaded and it was stated that the sale was made for Rs. 8,000/-for payment of antecedent debts and local necessity. The execution of the agreement to reconvey the house was specifically admited but it was stated that the period within which it could be enforced had long since expired and the plaintiffs or the defendants Nos. 3 to 13 had no rights left thereunder. It was said that the plaintiffs and the defendants Nos. 3 to 13 belonged to the same family but lived separately and had no right in the house in suit. Maha vir Prasad, Sukhdeo Prasad, Gaya Prasad and Hira Lal were said to have been taken as tenants of the house on 8th December, 1952, on payment of Rs. 60/. per month as rent and that their failure to pay the rent led to suit, for ejectment, arrears of rent etc. , and were decreed. The house was in a dan gerous condition and the Allahabad Municipality served a notice on the first defendant and on the tenant to repair the house and the first defendant there upon demolished a wall which was cracked in order to repair it which led to a false report by Mahavir Prasad and Sukhdeo, and in the criminal case the report was found to be false and the first defendant and his labourers were acquitted. The suit had been filed to harass the first defendant and to prevent the execution of decree for ejectment. The real plaintiffs were alleged to be Mahavir Prasad, Sukhdeo Prasad. Gaya Prasad and Hira Lal and their object was to dishonestly obstruct the decree for ejectment and arrears of rent against them. The bars of estoppel, waiver, limitation and res judicata were also pleaded. The following were the issues by the trial Court: 1. Was the agreement dated 8-12-52 executed by the defendant No. 1 for the benefit of the plaintiff ?

(2.) WAS the property in suit joint property of the plaintiffs and defen dant Nos. 3 to 13 ?

(3.) WHETHER the plaintiffs or their guardians reconstructed the house in suit. If so to what effect ?