RAM SUNDAR SAHA Vs. KALI NARAIN SEN CHOUDHURY

JUDGEMENT

(1.) This appeal by the plaintiffs arises out of a suit for specific performance of a contract for sale of certain immoveable properties embodied in a bainapatra dated 4feh December 1920, executed by Kali Narain Sen Chowdhury who was the original defendant in the suit, and who will be referred to as the defendant henceforth. Kali Narain died during the pendency of the suit on 29 July 1922, and his Iegalfrepre3entatives have been substituted in his place. The suit was instituted on 30 June 1921. After service of summons, Krishna Kumar Sen, the second of the surviving sons of the defendant, and another person serving as manager under the defendant, presented a petition in Court on 29 July 1921, that the defendant, by reason of unsoundness of mind and mental infirmity was incapable of protecting his own interest and a guardian ad litem should be appointed for him. Thereupon the Subordinate Judge held that though the defendant was not mentally deranged and could fully understand, the questions put to him and give rational answers, he was incapable of sustained or independent mental efforts owing to senile decay. He made an order of the appointment of a guardian for the defendant. This order was set aside by the High Court in revision which directed a fuller enquiry on the question of unsoundness of mind or mental infirmity for reasons stated in the order. Before this enquiry could be held the defendant died and his legal representatives were substituted in his place as stated above.

(2.) The substituted defendants filed lengthy written statements contesting the plaintiff's claim. Their main plea was that Kali Narain was not of sound mind and certain other questions, were also raised. A large number of issues were framed by the Subordinate Judge, but the principal questions were dealt with by him under issues 3, 5, 6 and 10. After a very elaborate discussion of the evidence and the circumstances of the case, the Subordinate Judge came to the following conclusions on the first three issues stated above : (1) that Kali Narain did not contract to sell the disputed properties to the plaintiffs ; (2) that his mind was so much enfeebled and impaired by age and disease that Kali Narain was quite incompetent, to enter into the contract referred to in the plaint and was incapable of understanding the terms of the bainapatra ands of forming a rational judgment of its effect upon his interests; (3) that the bainapatra had been secured by the undue influence and unfair means of Satis Kabiraj and without Kali Narain understanding its contents and without obtaining proper advice. With regard to the issue 10, the Subordinate Judge observed, the price or the method for ascertainment of the price in the contract for sale was not definitely settled between the parties and he was, therefore, of opinion that the contract was bad for vagueness and indefiniteness. Upon these findings the Subordinate Judge dismissed the claim for specific performance of the contract but made a decree for the earnest money, Rs. 11,000 paid by the plaintiffs, with Rs. 750 as interest. Prom this decree the plaintiffs, appeal to this Court and the respondents prefer cross-objections against the decree for money in favour of the plaintiffs The cross-objections, however, have not been pressed by the learned advocate for the respondents.

(3.) The plaintiffs urge that the finding of the Subordinate Judge is erroneous on every point. It is conceded by the learned advocate for the respondents that the finding of the Subordinate Judge that Kali Narain did not contract to sell the disputed properties is inaccurate as there is no question that he signed the bainapatra. It is also conceded that there is no evidence on which the finding that the bainapatra was secured by undue influence and unfair, means could be based. The effective issues are simplified before us and the questions we have to consider in this appeal are: (1) whether the defendant was of sound mind at the time when he made the contract; (2) whether the contract is vague and indefinite and so incapable of being specifically enforced; and (3) whether specific performance should be decreed in the exercise of the discretion of the Court having regard to the allegation of hardship made by the defendant. Another question was raised by the learned Counsel for the respondents, that, although the defendant was not actually of unsound mind he was a man of weak intellect and incapable of managing his own affairs. Under such circumstances the Court should not make a decree for specific performance of the contract, although the plaintiffs might be entitled to damages. The appellants object to this point being raised before us on the ground that it is a new one.