KRISHNA AIYAR Vs. SHAMANNA, MINOR LEGAL REPRESENTATIVE OF THE PLAINTIFF BY HIS GUARDIAN VENGALAXMI AMMAL

JUDGEMENT

(1.) This is an appeal from the judgment of the District Court of North Arcot in a suit for specific performance of a contract. The defendants Nos. 1 to 5 were the members of a joint family of which the 5th defendant was the father and the 1st defendant the eldest son. Defendants Nos. 6 and 7 were persons who had taken from the 5th defendant a sale of the property in question after the date of the contract sued on. The contract is dated the 27th August 1906 and by it the property was agreed to be sold for Rs. 2,375 and it was executed by the 1st defendant and witnessed by the 5th defendant. The sale to defendants Nos. 6 and 7 of the same item of property is dated the 20th of September 1906 and was for a sum of Rs. 2,900. The District Judge has given a decree to the plaintiff directing defendants Nos. 1 to 3 and the 2nd defendant as guardian of the 4th defendant to execute a ssile-deed to the plaintiff and put the plaintiff in possesirm and with other reliefs has given a declaration that the sale- deed to the 6th and 7th defendants was void and ineffectual as against the plaintiff. The 5th defendant is dead. Defendants Nos. 6 and 7 appeal and their contentions are as follows:-(1) that prior to the date of the agreement in favour of the plaintiff there was an oral agreement between them and the other defendants dated the 22nd August 1906 to sell the property to them for the sum of Rs. 2,275, (2) that at the date of the sale to them there was no subsisting contract between the plaintiff and the other defendants, (3) that the plaintiff s contract is not binding on any party but himself because (a) the first defendant was not the managing member (b) even if he was de facto manager it was not made with the express consent of the 2nd and 3rd defendants as alleged in the plaint and the 4th defendant being a minor specific performance cannot be had against him with the result that the plaintiff could only bind the 1st defendant on his contract in which circumstances the court would not grant the specific relief sought for but would only award damages. We will take these contentions in order and see how far they are proved and are an answer to the plaintiff s claim.

(2.) We are unable to accept the evidence of the alleged oral agreement of the 22nd August 1906. Mr. K. Srinivasa Aiyangar relies chiefly on the fact that defendants Nos. 6 and 7 purchased stamp papers soon after the date of the alleged agreement and also on the fact that that agreement is recited in the sale deed. The story however is utterly improbable on the face of it. The 6th and 7th defendants allege that they were in negotiation for this property for a month prior to the alleged oral contract, that they originally having offered Rs. 2,000 and the family insisting on Rs. 2,500, at the end of the month they eventually agreed to pay Rs. 2,275, If this be so it is inconceivable that they should have subsequently paid Rs, 2,900 for the same property instead of insisting on their contract being carried out. According to their own case the negotiations for the oral contract were carried on with the 5th defendant, the father, whom they themselves alleged to be the managing member and lastly it is unlikely that after such protracted negotiations the agreement should not have been reduced to writing. We have no doubt that the idea of this oral contract was first conceived on the 20th of September 1906 when the sale-deed was executed.

(3.) For the contention that there was no subsisting contract at the date of the sale reliance is sought to be placed on a discussion that is said to have taken place between the plaintiff and the defendants Nos. 1 to 5 on the 5th of September on which date he undoubtedly asked the 1st defendant to execute a sale-deed and we are asked to hold that he abandoned his right to the execution of the deed, stated that he was going away to Nellore for his father s ceremony and that he would resume negotiations when he returned, but that if he did not return shortly they could sell the property to any body else. We have examined the whole of the evidence very carefully and do not find that this contention is proved. We are satisfied that what took place with regard to the plaintiff s contract is as follows. The 1st defendant undoubtedly entered into a contract with the plaintiff on the 27th August 1906 for the sale of the lands, which contract was witnessed by the 5th defendant, but we do not believe that this was made with the express consent of defendants Nos. 2 and 3 as the evidence called for the plaintiff would have us believe. On September 5th, when the plaintiff demanded his sale-deed the 1st defendant informed him that the 2nd and 3rd defendants would not agree. The plaintiff then recognised that the agreement to sell to him was executed by the 1st defendant only and was not binding on defendants Nos. 2, 3 and 4. He did not abandon his contract but he hoped to get the consent of defendants Nos. 2 and 3 by paying a little more and left them to go to Nellore intending to make that arrangement when he returned. Mr. T. Rangachariar for the plaintiff contended that the 1st defendant was the de facto managing member, the father being old and ill, having resigned the management and that even if express consent is not found there was necessity proved which makes the contract binding on the junior members, while Mr. Srinivasa Aiyangar contra contended that the 1st defendant did not intend to convey more than his own interest and that even if he did intend to do so the document does not purport to convey more than his own interest and lastly that necessity was neither set up in the plaint nor proved and therefore the family interest would not pass. In support of the second proposition he relies on a recent decision of the Privy Council in Balwant Singh v. R. Clancy (1911) I.L.R. 34 A. 296. This case however does not support his proposition. The decision did not turn on the words of the document but on the surrounding circumstances which were examined by the Court to ascertain the true intent of the document. In that case the executant was shown to have been claiming the property as the owner of an impartible Raj and the document itself recites this claim.