SAVITRI DEVI Vs. SURAJ PRAKASH

JUDGEMENT

(1.) THE dispute in this case relates to two shops situated at Panjtirthi, Jammu. The shops belonged to a Hindu undivided family of which, Shri Om Parkash, appellant No. 2 herein, was the head with Savitri Devi, appellant No. 1 herein, held the shops as a tenant. Shri Suraj Parkash respondent herein held the shops as a tenant. Shri Om Prakash and Suraj Prakash entered into an agreement whereby it was stipulated that the tenant would vacated the shops in order to enable the landlord to reconstruct the same on condition that upon completion of the reconstruction, the landlord shall restore the shops to the tenant. In furtherance of this agreement the tenant gave up the possession. Thereafter there was a partition of the joint family property through court. The disputed shops fell into the share of Savitri Devi. She reconstructed the shops but refused to let out the same to Shri Suraj Parkash. She let out the shops to some other persons. Shri Suraj Parkash sued for specific performance of the agreement. The trial court of Sub Judge Jammu dismissed the suit. The court held that the agreement did not bind Savitri Devi. The agreement had become void under section 56 of the Contract Act because subsequent events had renedered it impossible for Om Prakash to perform it. On appeal, the Additional District Judge disagreed with this view. He held that the agreement was bind on Savitri Devi as much as on Om Prakash and that the doctrine of Frustration did not really apply. Aggrieved by the decision, Savitri Devi and Om Prakash have come up in appeal to this court.

(2.) THE Principal question to be considered in this case is whether the agreement would bind Savitri Devi. On facts stated above, which have been either admitted or proved in the lower courts, the disputed shops formed part of the property in his capacity as head of the family. The arrangement evidenced by the agreement in question was in the nature of an act incidental to the management of the property and squarely fell within the powers of Om Prakash to manage the joint family property. On this premises, it would surely bind other members of the family including Savitri Devi. The trial court has, however, held that the agreement could be binding on other members of the family only if the agreement were for the benefit of the family property. That principle could apply if the agreement amounted to alienation of the joint family property. That it did not. The view taken by the trial court is, therefore, clearly mis -conceived.

(3.) IN the view expressed above, Savitri Devi was as much bound by the agreement as Om Prakash. She could not wriggle out of it nor even Om Prakash on the ground that subsequently the joint family property was partitioned and the shops fell to the share of Savitri Devi. Reliance on section 56 of the Contract Act is completely misplaced. It was however suggested that the shops have since been leased out to some other persons by Savitri Devi. That would not make any difference. For, a party cannot take benefit of his own wrong. Those other persons must be deemed to have taken the shops subject to the obligation flowing from the agreement which must be treated as an incident running with the property. The provisions of the Houses and Shops Rent Control Act cannot stand in the way of such incident being enforced against the property. In the circumstances I am inclined to agree with the view expressed by the learned District Judge that the agreement would be binding on Savitri Devi as much as on Om Prakash, although the reason given by him may not be appealing when he says that, since Om Prakash has been collecting rents and profits on behalf of Savitri Devi, both before and after the partition, he must be treated to have had implied authority to enter into agreement with Suraj Prakash. The ultimate decision, I might say, is essentially a just decision and must be upheld.