DURGESH KUMARI DEVI Vs. BIMAL KUMAR JIIAJHARIA

JUDGEMENT

(1.) This appeal arises out of the order and judgment passed by Mr. Justice Dipak Kumar Sen on the 24th Feb., 1981. By the said order and judgment, the learned Judge has dismissed the petition filed on behalf of the judgment debtor in his suit. It appears that on the 16th June, 1972, the predecessor in interest of the appellants Bhubaneswar Prosad Singh Deo, the Raja of Panch Kote entered into an agreement with the respondent for sale of a portion of his property at 2;1, Loudon Street, Calcutta. The property at premises No. 21, Loudon Street. Calcutta comprised of about 1 bigha 7 cottahs and 4 chattaks. But the agreement for sale was for about 8 cottahs. It would be necessary, in view of the controversy raised in this case, to refer to the relevant portion of the terms of the agreement which, after setting out the recital of the parties, stated as follows :

(2.) The said predecessor in interest died intestate and, according to the present appellant, she is the sole heiress, being the mother of the said predecessor in interest of the appellant There were other claimants including four minors through their mother claiming to be the wife of the said predecessor in interest. That is disputed and we are not concerned with that dispute be cause learned Judge had held that the mother alone was sufficient to represent the estate of Bhubaneswari Prosad Singh deo. since deceased. The said Bhubaneswari Prasad Singh Deo, as we have said before, died intestate on 2nd Oct., 1972. The respondent instituted this suit on 17th Aug., 1973 against the present appellant, and five others, mentioned here-in-before for specific performance of the said agreement dated 16th June. 1972. On the 11th August. 1978 Mrs. Justice Padma Khastgir passed a decree for specific performance of the said agreement dated 16th June. 1972 against the appellant alone holding, inter alia, that as she was the mother of the Raja Bhubaneswari Prosad Singh Deo, she alone was competent to represent the estate, of the deceased. Bhubaneswari Prosad Singh Deo and that suit was maintainable against her alone. The decree was passed for specific performance of the agreement in respect of the property agreed to be sold.

(3.) There is one controversy which was sought to be raised. The decree directs, specific performance of a conveyance in favour of the plaintiff on the failure of the defendants to execute or register directing the Registrar of this Court to execute and register the directing the Registrar of this Court to execute and register the same on the failure of the defendants to obtain certificate under Sec. 230A of the Income Tax Act, 1961 and directing the said Registrar to apply for and obtain such certificate on behalf of the defendants on making satisfactory provisions for payment out of the agreed price the tax liabilities as provided in the said section for possession and also declaring that subject to the provisions contained in the terms of the agreement dated 16th June, 1972 for sale of the premises No. 21, Loudon Street, Calcutta, particulars whereof were set out in the schedule should be specifically performed. It was contended that in the schedule the particulars that were being included contained the particulars in its entirety of the premises no. 2/1, Loudon Street. Calcutta, viz, the property comprised of 7 cottahs 4 chattaks while the agreement was for the sale of more or less 8 cottahs of land. It was contended that the decree which was sought to be executed was not the agreement between the parties and specific performance of such a decree could not be had. In our opinion, the decree is clear enough to make it specific that specific performance would be of the portion of the land out of the said premises no, 2/1, Loudon Street, Calcutta, which was agreed to be sold. It is possible and, in the context of facts and circumstances of this case, it is the proper interpretation of the decree that the decree directed specific performance of the portion agreed to be sold by the agreement dated 16 June, 1972. Therefore, it is not possible to accept the contention urged on behalf of the appellant before the learned Judge in execution that the decree was at variance with the agreement and the conveyance that was purported to be executed was not the bargain between the parties. Read in the proper light, as we read, in our opinion, on the proper interpretation it cannot be said that the decree was at variance or was vague. On the 6th Feb., 1980 a letter was sent by the advocate for the respondent to the appellant, at her residence at Panchkote. Then, several letters were written by the respondent's advocate to the appellant between 1st Aug., 1980 and 15th Nov., 1980. The case of the appellant was that, as she was away from Panch Kote, she did not receive those letters On 18th Nov., 1980, Mr. Justice Dipak Kumar Sen passed an ex pane order directing the appellant to execute and register the deed of conveyance in favour of the respondent within three weeks from date and in default, the Registrar, Original Side, Calcutta, to execute the said deed. There was some controversy about the conveyance to be executed and this was clarified again by Mr. Justice Sen by the order that the cost need not be deducted from the money that was to be deposited by the respondent before getting the conveyance registered. We are not concerned with this controversy again. Thereafter it appeals that the matter was mentioned before Mr. Justice Sen on behalf of the advocate for the appellant and Mr. Justice Sen, as we have mentioned before, modified the draft conveyance in the manner following :