HARENDRA CHANDRA DAS Vs. NANDA LAL ROY

JUDGEMENT

(1.) The plaintiff in the suit out of which these two appeals have arisen, prayed for a decree for specific performance of a contract for sale said to have been entered into by defendants 1 to 5 on 3 Chaitra 1330 B.S. or in the alternative for refund of earnest money and recovery of damages. Defendants 2 to 5 had maliki right in the property which was the subject matter of the contract for sale, to the extent of certain definite shares owned by each of them as a member of a joint Hindu family; defendant l had a meadi ijara right in the property to the extent of the share of defendant 3. Defendant 6 was the karta of the joint family of which defendants 1 to 5 were members, defendant 1 being the mother of defendants 2 to 5. Defendant 7 was an officer of the joint family, estate. Defendants 6 and 7 acted as agents in the matter of the contract for sale, of which specific performance was prayed for by the plaintiff, Defendants 8 to 13 are purchasers from defendants 1 to 5, by kabalas dated 4th Ashar. 1331 of the property in regard to which the plaintiff asked for specific performance, The plaintiff's claim in suit was resisted by all the defendants mentioned above. The contract for sale as alleged by the plaintiffs was denied; it was asserted that defendants 8 to 13 were bona fide purchasers for value, without knowledge or notice of any previous agreement for sale with the plaintiff as alleged by the plaintiff in the suit.

(2.) The controversy between the parties to the litigation are indicated by the principal issues raised for determination in the suit, which were to the following effect: Was there any contract for sale to the plaintiff ? Was the, contract legally enforceable and capable of specific performance? Had defendants 6 and 7 any authority to enter into any contract ? Did defendants 1 to 5 approve of or ratify the contract ? Had defendants 8 to 13 notice of the contract? Are defendants 8 to 13 bona fide purchasers for, value? The learned Subordinate Judge, Second Court, Sylhet, in whose Court the suit was instituted, passed a decree in the suit in these words: The suit be decreed with costs, decree against defendants 1 to 7 being for Rs. 350 and against all the defendants for costs, prayers ka to chha of the plaint and claim for Rs. 3000 as compensation beings disallowed and interest running at 6 per cent per annum on decretal amount till realization.

(3.) The prayers ka to chha, it may be mentioned, related to specific performance. On appeal by the plaintiff, the learned District Judge of Sylhet modified the decree of the trial Court, and passed a decree directing that the suit be decreed as against defendants 2, 4, and 5 to 13, and that the plaintiff be allowed specific performance as against defendants 2, 4, 5 and 8 to 13, of the agreement dated 3 Chaitra 1330. The kabalas dated 4 Ashar 1331, in favour of defendants 8 to 13 were declared invalid, in respect of the shares of defendants 2, 4 and 5. The decree further directed the execution of a fresh kabala in respect of the shares of defendants 2, 4 and 5, in favour of the plaintiff. The plaintiff's suit was dismissed as against defendants 1 and 3. Defendants 2 and 4 to 13, as well as the plaintiff, have appealed to this Court. The defendants appeal being appeal from Appellate Decree No. 851 of 1929 while the appeal by the plaintiff is appeal from Appellate Decree No. 898 of 1929. In view of the questions raised in these appeals the findings arrived at by the learned District Judge on appeal in his elaborate and careful judgment may be briefly referred to. The learned Judge held upon the evidence before him, that defendants 6 and 7, on behalf of defendants 2 to 5, entered into a contract with the plaintiff for the sale of the property, and that the agreement was concluded on 3 Chaitra 1330. Defendants 6 and 7, the agents, were, according to the learned Judge's finding, acting beyond the scope of their authority, but the agreement was ratified by defendants 2, 4 and 5, but not by defendants 1 and 3. On the question of the position of defendants 8 to 13 the District Judge has held that on the facts and in the circumstances mentioned by him the contract could be specifically enforced against them.