MANOHARI DEVI Vs. CHOUDHURY SIBANAVA DAS

JUDGEMENT

(1.) Plaintiffs 1, 2 and 3 wives of brothers Puranmal, Matrumal and Prabhudayal respectively, have preferred this appeal against the judgment and decree of the learned 4th. Additional subordinate Judge, Cuttack dismissing their suit for specific performance of contract. Choudhury Sibanava Das is defendant No. 1. The late Durgabati Devi was his first wife and defendants 2 to 4 are his sons and defendants 5 to 7 are his daughters through the late Durgabati. Defendant No. 8, Satyabhama Devi is the second wife of defendant No. 1 and defendants 9 to 11 are the adult sons and defendants 12 to 15 are the minor sons of defendant No. 1 through Satyabhama. The properties described in Schedules 'A' and 'B' appended to the plaint form the subject matter of dispute between the parties. Schedule 'A' comprises Ac. 0.063 decimals of land together with a portion of the house appertaining to plot No. 422 of C.S. Khata No. 163 and Schedule 'B' comprises Ac. 0.041-5 links of land together with a portion of the same house appertaining to plot No. 422/1 of C.S. Khata No. 163. The house and the lands are situated at Manikghose bazar in the city of Cuttack.

(2.) The plaintiffs' case may be briefly stated. The defendants constitute a joint family of which defendant No. 1 is the Karta. The properties mentioned in Schedules 'A' and 'B' of the plaint were originally ancestral joint family properties of defendant No. 1 and his co-sharers. In partition suits No. 69 of 1924 and No. 144 of 1927 of the Court of the Subordinate Judge, Cuttack between the co-sharers, the 'A' schedule properties along with other properties fell to the share of the late Choudhury Padmanava Das, father of defendant No. 1. Padmanava got his name mutated in the landlord's Shirasta and Municipal office and remained in separate possession thereof. After his death defendant No. 1 became the owner in possession of the said property as Karta of the family. In the aforesaid partition suits the 'B' schedule property along with other properties fell to the share of Choudhury Mohadev Das, Choudhury Brajabandhu Das and Choudhury Dukhishyam Das who amicably partitioned the same amongst themselves, Brajabandhu taking Ac. 0.19 decimals and the remaining two Ac. 0.16 decimals each. On 9-4-1938 Brajabandhu sold his share of Ac. 0.19 decimals to one Lambodar Misra who had two sons, Upendranath and Debendranath, both of whom after the death of their father divided the said Ac. 0.19 decimals of land equally between them. According to the plaintiffs, Choudhury Dukhishyam Das and Choudhury Mohadev Das proposed to sell their shares of Ac. 0.16 decimals each in the 'B' schedule property to defendant No. 1 who purchased the same with his own funds benami in the name of his first wife, the late Durgabati Devi, by two sale-deeds dated 15-12-1940 and 12-12-1941. The aforesaid Debendranath Misra, one of the sons of Lambodar Misra, proposed to sell his share of Ac. 0.9 decimals and 5 links in 'B' schedule property to defendant No. 1 who purchased the same on 22-11-1967 with his own funds benami in the name of his second wife, Satyabhama, defendant No. 8. Since after the purchases noted above, defendant No. 1 became the owner in possession of the entire Ac. 0.41 decimals and 5 links of land comprising 'B' schedule property together with the dilapidated house thereon. The further case of the plaintiffs is that defendant No. 1 could not make any repairs to the old double-storeyed building standing on a portion of 'A' schedule property and as a result the building became so dilapidated that a huge sum of money was required for repairs. Defendant No. 1 who was then residing in village with his family did not think it profitable or beneficial to spend such a huge sum for repairs of the building. Accordingly he proposed to dispose of the same and utilise the money in extending his residential house at village Bhingarpur and also to run the family business as a profitable concern. Puranmal, husband of plaintiff No. 1, came to know that defendant No. 1 desired to sell the 'A' schedule property and accordingly he met defendant No. 1 in the middle of June, 1968. It was stipulated between Puranmal and defendant No. 1 that the latter would sell the 'A' schedule property with the house to the plaintiffs for a consideration of Rupees 43,000/-. Defendant No. 1 wanted an advance of Rs. 10,000/- for his urgent necessity and the plaintiffs agreed to give the same on the day of execution of the contract. According to the plaintiffs, a portion of the double-storeyed building on 'B' schedule property was also in a dilapidated condition requiring investment of a huge sum for repairs and therefore defendant No. 1 thought it prudent to sell the 'B' schedule property and utilise the purchase money for extension of the residential building at village Bhingarpur and for joint family business. Puranmal also agreed to the suggestion of defendant No. 1 for purchase of 'B' schedule property and if was agreed between Puranmal and defendant No. 1 in the last part of June, 1968 that the plaintiffs would also purchase the 'B' schedule property for Rs. 29,000/and pay Rs. 5000/- as advance on the date of execution of the contract. Puranmal had made bona fide enquiries on behalf of the plaintiffs regarding the legal necessities of and benefits to the joint family and was satisfied about the existence of the same and the plaintiffs were also accordingly satisfied. On 13-7-1968 a deed of contract (Ext. 1) for sale of schedules 'A' and 'B' properties was executed in favour of the plaintiffs by defendant No. 1 for self and as Karta of the joint family and defendant No. 1 received an advance of Rs. 15,000/-. Although it was agreed that the sale-deeds would be executed within three months from that date, instead of doing that, defendant No. 1 sent a registered pleader's notice dated 11-10-1968 alleging that he had agreed to sell some lands at Kanpur for Rs. 30,000/- and not the suit house. Defendant No. 1 suggested, refund of Rs. 15,000/- or acceptance of a sale-deed in respect of Kanpur lands. Plaintiff No. 1 and her husband, Purnamal replied to the said notice by registered post denying all the allegations. The plaintiffs issued a registered notice on 14-10-1968 to defendant No. 1 demanding performance of the contract in respect of schedules 'A' and 'B' properties and to accept the balance consideration of Rs. 57,000/-. They also sent along with the notice a draft deed of sale. However, defendant No. 1 did not execute the sale-deeds. Accordingly the plaintiffs have filed the suit for specific defendant No. 1 to sell schedule 'A' and 'B' properties to the plaintiffs.

(3.) Defendants 1, 2, 8 and 12 to 15 have filed separate written statements. Defendants 3 and 4 have adopted the written statement filed by defendant No. 2. Defendants 5 to 7 and 9 to 11 have been set ex parte. The defence case may be briefly stated. In the year 1966, prior to the execution of the contract for sale, there was already a severance of the joint family status and as such defendant No. 1 was not competent to execute the contract as the Karta of the joint family. Assuming the defendants comprised of a joint family, defendant No. 1 was not the Karta. The 'B' schedule properties were purchased by the late Durgavati, the first wife of defendant No. 1 and Satyabhama, defendant No. 8, the second wife of defendant No. 1, from out of their Stridhan funds and they are the absolute owners in possession of the same. Defendant No. 1 has no interest in the said properties and was incompetent to enter into any contract in respect of the same and as such the contract, if any, executed by him is not binding on the other defendants. The suit house is not a dilapidated house and the income from the family property is sufficient to meet the annual repairs and the said house was never a burden to the family. The defendants have no other business except cultivation and there was never any question of extending their residential house at village Bhingarpur which already comprised of 27 living rooms. Many rooms in the village house are lying vacant as defendants 2, 3 and 4 are staying separately with their families at different villages since after the severance of the joint family status. It is also alleged that defendant No. 1 executed the contract for sale without knowing the contents thereof under undue influence and pressure and believing that the contract for sale was in respect of some lands at village Kanpur and not the suit house. The defendants have accordingly prayed that the suit should be dismissed.