NRIPENDRA CHANDRA SARKAR Vs. EKHERALI JOARDAR

JUDGEMENT

(1.) This is an appeal by the defendants and arises in a suit for specific performance of a contract. The plaintiff, now respondent, alleges that the defendants got an ex parte mortgage degree against the plaintiff for a sum of Ks. 2,500 and the plaintiff intended to apply to have the ex parte decree set aside. At this stage the parties came to an arrangement and the arrangement was arrived at between plaintiff on the one hand and defendant 1 on the other purporting to act on behalf of the joint family of which defendants 2, 3 and 4 were also members. It was agreed that two plots covered by the mortgage, viz., plots which were mentioned in Schedule Ka and Kha to the plaint would be sold by defendant 3 as representing the family to the plaintiff and the defendants would refrain from executing their mortgage decree on payment by the plaintiff of the sum of Rs. 1,654 in certain instalments. Of the numerous defences which had been taken in this case it is necessary to notice only one which is to the effect that as defendant 3 was a minor at the time of the plaintiff's alleged contract no specific performance of the contract could be enforced in this case as the contract was entered into by the manager of the family of which defendant 3 was a member. Both the Courts below have not given effect to this defence and the Court of first instance decreed the suit for specific performance after holding that the agreement with the plaintiff for retransfer of the two properties in dispute on payment of Rs. 654 and the payment of the said money and the breach of that agreement by the defendants must be taken to be established and the Court of first instance directed that the defendants do execute a kabala for the said properties in favour of the plaintiff within 15 days from the date of the judgment failing which the kabala would be executed by the Court.

(2.) Against this decree an appeal was taken to the Court of the Subordinate Judge of Nadia which affirmed the decision of the Munsif. It is to be mentioned in this case that defendant 5 is a subsequent purchaser of the two properties now in suit and the finding was that she was not a bona fide purchaser for value although the lower appellate Court came to the conclusion upon the circumstance that there was no bona fides in the vendor. It is unnecessary, however, to consider this part of the case as I shall show presently.

(3.) A second appeal has been taken to this Court against the decision of the Subordinate Judge affirming that of the Munsif and two points have been taken before us by the learned advocate for the appellants. It is argued in the first place that no specific performance of the contract could be ordered as defendant 3 was a minor at the time of the contract and on the principle of want of mutuality which is available in this case as a good defence, this suit must fail. It is argued in the second place that even if the defendants do not succeed on this point as there is no finding that defendant 5 is not a bona fide purchaser for value and as the plaintiff did neither allege in his plaint that she was not a bonafide purchaser for value nor adduce any evidence on that point, the decree of the Court of first instance which was affirmed by the lower appellate Court cannot possibly be sustained.