NATHUNI MISHRA Vs. MAHESH MISRA

JUDGEMENT

(1.) This Second Appeal By the defendants arises out of a suit for specific performance of contract. In this case there is a competition between a contract of sale and a completed sale deed. The plaintiff had a contract of sale dated the 1st Chait, 1352 Jhasli, corresponding to the 9th March, 1955, executed in his favour by defendant No. 1. Defendant No. 1 had contracted to sell to the plaintiff 9 kathas of land for Rs. 500, and this contract of sale was entered into to raise money to meet the expenses of marriage of defendant No. 1 himself. It appears that the defendant No. 1 executed a sale deed in favour of defendants second party on the 17th of January, 1955, in respect of the suit land for a consideration of Rs. 400, which was subsequently registered on the 16th of May, 1955. In point of time, therefore, the sale deed in favour of defendants second party was prima facie earlier than the contract of sale in favour of the plaintiff. The case of the plaintiff was that this sale deed was in fact executed after the contract of: sale in his favour and was ante-dated. Defendants first party, however, denied that they had executed any contract of sale in favour of the plaintiff, and they denied also the receipt of the consideration. They admitted the execution of the sale deed in favour of defendants second party. The latter also raised the same defence, and, in addition, pleaded that they were bona fide transferees for value without notice of the contract of sale in favour of the plaintiff. Both the Courts have concurrently held that the contract of sale in favour of the plaintiff was genuine and for consideration and also for legal necessity inasmuch as the marriage expenses of defendant No. 1 was in law a legal necessity. They also held that the sale deed in favour of defendants second party was not genuine and was in fact executed after the contract of sale in favour of the plaintiff and was ante-dated. They also held that defendants second party were not bona fide purchasers and had notice of the contract of sale and have not also paid the consideration. Accordingly, both the Courts have gratned the plaintiff a decree for specific performance of contract.

(2.) Before I proceed to consider the points urged in this appeal, it will be necessary to mention one more fact. From the Judgment and decree of the learned Munsif two appeals had been preferred, one by the defendants first party and the other by the defendants second party. In appeal defendants first party raised the same contentions as they had urged before the learned Munsif. Both the appeals were dismissed by the learned Subordinate Judge.

(3.) Mr. B. C. De appearing for the appellants contended that the contract of sale was not binding on the minor defendants first party inasmuch as it was not for the benefit of the minors. His contention is that the marriage expenses of defendant No. 1 may constitute legal necessity, but under the Hindu law, in order to bind the minors the existence of legal necessity was not adequate. The plaintiff had further to prove benefit to the minors. In support of his contention he referred to a decision of the Privy Council in the case of Subrahmanyam V, Subba Rao, reported in 75 Ind App 115: (AIR 1948 PC 95). Learned Counsel on behalf of the plaintiff respondent argued that this ground was not available to the appellants inasmuch as the appeal preferred by the defendants first party from the judgment and decree of the learned Munsif was dismissed, and no further appeal has been taken by them to this Court. And in support of his contention he referred to a decision of the Privy Council in the case of Bhup Narain Singh v. Gokul Chand Mahton, reported in 61 Ind App 115: (AIR 1934 PC 68). In my opinion, the contention of learned Counsel for the respondent is correct and must be upheld. In that case the plaintiff brought a suit for specific performance of contract for sale of certain immovable property. An agreement was executed by defendant No. 1, who was respondent No. 2 before the Privy Council, as karta of the joint family which consisted of himself and his two sons. Defendant No. 4, who was respondent No. 1 before the Privy Council, claimed the property in suit by virtue of a registered sale deed dated the 22nd, December. 1926, for himself and as guardian of his two minor sons. Defendant No. 1 did not appear to defend the suit. But defendants Nos. 2 and 3 put in a written statement by their guardian ad litem, denying the plaintiff's contract, and alternatively, in the event of the contract being held proved, denying that defendant No. 1 was entitled to alienate their interests, as the sale was not for family interest or for their benefit. All the defences of defendants Nos. 2 and 3 were rejected by the Subordinate Judge, and no appeal was taken against that decision to the High Court. The appeal before the High Court was only by defendant No. 4. Before the Privy Council the points raised by defendants Nos. 2 and 3 were reiterated on behalf of defendant No. 4 in order to disentitle the plaintiff to a decree for specific performance of contact. Their Lordship of the Privy Council held that since from the decision of the learned Subordinate Judge against the contentions raised by defendants Nos. 2 and 3 no appeal was preferred to the High Court, the contention raised on behalf of the subsequent transferee, defendant No. 4, was not open and could not be maintained. In fact, their Lordships debarred defendant No. 4 from raising the contentions which were available to and could have been raised on behalf of defendants Nos. 2 and 3 simply because, against the adverse decision of the learned Subordinate Judge, no appeal was taken to the High Court. Similarly, in this case it will appear that defendants first party had no doubt preferred appeal from the decision of the learned Munsif, and that appeal was dismissed by the learned Subordinate Judge, but no further appeal has been preferred against that decree to this Court. In these circumstances, it is not open to the appellants to raise the contentions which were germane to the defence set up by defendants first party. On this ground alone the contention raised by Mr. De is not tenable.