Agreement; Jiten Chandra Ghosh Vs. Nipendra Chandra Ghosh [Calcutta High Court, 08-07-2016]

Agreement for Sale – Not entitled to obtain a decree for specific performance as lacked readiness and willingness to perform under the agreement for sale.

Agreement for Sale


IN THE HIGH COURT AT CALCUTTA

Civil Appellate Jurisdiction Appellate Side

Present : The Hon’ble Mr. Justice Ashis Kumar Chakraborty

Judgement on : 08.07.2016

S.A. No. 56 of 2009

Jiten Chandra Ghosh & Ors. Vs. Nipendra Chandra Ghosh

For the appellants : Mr. Priyabrata Ghosh; For the respondent : Mr. Partha Pratim Roy

Ashis Kumar Chakraborty, J.

This second appeal, at the instance of the defendants in a suit for specific performance is against the judgment and decree passed by the learned first appellate Court, affirming the judgment and decree for specific performance passed by the learned trial Judge in favour of the respondent.

The relevant facts giving rise to the present appeal are stated hereinbelow. One Rama Prasad Ghosh, since deceased was the owner of various plots of land being Plot Nos. 222, 291, 438, 486, 490, 505, 526, 122, 130, 36, 38, 112, 367 of Khatian No. 69 Akri and Plot No. 357 of Khatian No. 27 Akri at Mouza- Mamudpur in the district of Murshidabad (hereinafter referred to as “the said properties”). In the year 1953, the said Rama Prasad died intestate, leaving behind his wife and three sons namely, Kesab, Jitendra and Nipendra. Since the said Rama Prasad Ghosh died before coming into force of the

Hindu Succession Act, 1956

his said properties devolved upon his said three sons, each having one-third share therein.

In July 1988 Nipendra, the respondent in this appeal filed a suit, being Suit No. 132 of 1998 (subsequently renumbered as O.S. No. 42 of 1989) before the learned Civil Judge (Senior Division), Kandi, Murshidabad against his elder brother Jitendra, the appellant no. 1, claiming a decree for specific performance of an oral agreement for transfer of the entire one-third share of Jitendra in the said properties in his favour. The case set out in the plaint showed that according to the respondent, in the year 1985 an oral agreement was entered into between himself and appellant no. 1 whereby the latter agreed to transfer his entire one-third share in the said properties to him for Rs. 17,000/-. The respondent claimed that in terms of the said agreement for sale, on April 6, 1985 he paid Rs. 4,000/- to the appellant no. 1 as advance and thereafter by two instalments he paid a further sum of Rs. 6,000/- to the appellant. The respondent further alleged that, on June 21, 1988 when he offered the balance consideration of Rs. 7,000/- to the appellant no. 1 and called upon him to execute the necessary conveyance in his favour, the appellant no. 1 refused to accept the balance consideration and to execute the deed of conveyance in his favour.

The appellant no. 1, as the sole defendant contested the said suit. He filed his written statement alleging that he never agreed to sell his entire share in the said properties to the respondent; he only agreed to sell in Plot No. 490 of the said properties to the respondent at a consideration of Rs. 17000/-. He further alleged that the respondent was not ready and willing to perform the said agreement for sale of the said Plot No. 490 of the said property and in any event, he had sold Plot No. 130 of the said property to three persons namely, Ananda Gopal Mondal, Nanda Gopal Mondal and Nikhil Kumar Mondal for Rs. 10,000/- and in the absence of the said three purchasers who are necessary parties, the suit filed by the respondent was not maintainable.

On these pleadings, the learned trial Judge framed various issues, three of which were important for deciding this appeal. Those three issues were:

(1) whether in the absence of the subsequent purchasers the suit is bad for defect of parties;

(2) whether had agreed to sell his entire one-third share in the said properties to the plaintiff; and

(3) whether the plaintiff was entitled to a decree for specific performance.

Both the parties adduced oral, as well as documentary evidence through their respective witnesses before the learned trial Judge. By a judgment dated November 15, 1989, the learned trial Judge held that the said subsequent purchasers namely, Ananda Gopal Mondal, Nanda Gopal Mondal and Nikhil Kumar Mondal were not at all necessary parties and in their absence the suit was not bad for defect of parties; the appellant no. 1 had agreed to sell his entire one-third share in the said properties to the respondent and that the respondent was entitled to a decree for a specific performance. Thus, the learned trial Judge decreed the suit in favour of the respondent. Jitendra, the appellant no. 1, then as the sole defendant challenged the said judgment and decree in appeal, being Title Appeal No. 138 of 1989, before the learned Additional District Judge, 4th Court, Murshidabad. By the judgment dated February 5, 1994 the learned Additional District Judge, 4th Court, Murshidabad upheld the findings of the learned trial Judge that the appellant no. 1 had agreed to sell his entire one-third share in the said family property to the respondent for Rs. 17,000/- and that the respondent was ready and willing to perform the said agreement for sale. The learned Additional District Judge, however, held that the said subsequent pruchasers namely, Ananda Gopal Mondal, Nanda Gopal Mondal and Nikhil Kumar Mondal were necessary parties to the said suit, in their absence no effective decree could be passed in the suit, and the learned trial Court fell into an error to hold that the said subsequent purchasers were not necessary parties to the suit. Thus, learned Additional District Judge set aside the judgment and decree of the learned trial Judge, remanded the suit to the learned trial Court and granted opportunity to the respondent to implead the said subsequent purchasers as parties to the said suit and also granted liberty to the parties, including the said subsequent purchasers, to adduce fresh evidence in the suit. The respondent accepted the decision of the learned Additional District Judge in Title Appeal no. 138 of 1989 that the said subsequent purchasers were necessary parties to the said suit. After the suit was remanded to the learned trial Court, on November 29, 1995 the respondent amended his plaint by impleading the said subsequent purchasers as the defendant nos. 2, 3 and 4 in the said suit. The said subsequent purchasers, as the defendant nos. 2, 3 and 4 jointly filed their written statement and the learned trial Judge recasted the issues for decision of the said suit as follows:

1. Is the suit maintainable in its present form and in law?

2. Has the plaintiff any cause of action to file this suit?

3. Is the plaintiff entitled to reliefs, as he prayed for?

4. To what other relief or reliefs the plaintiff is entitled?

Before commencement of the trial of the suit after remand the defendant no. 2, Ananda Gopal Mondal died and his two sons and one daughter who (who were minors and represented by their mother) and his wife were substituted in the suit as the defendant nos. 2(a) to 2(d).

The appellant no. 1, as the defendant no.1 and the other appellants, being the added defendants adduced evidence before the learned trial Court and they were also cross-examined. In his fresh evidence before the learned trial Judge after remand, the appellant no. 1 produced and proved a letter dated June 20, 1985 issued to him by the respondent which was marked as “Exbt.- B” on February 04, 2003. After considering all the evidence adduced by the respective parties to the suit, by the judgement dated January 22, 2004 the learned trial Judge decided all the aforementioned issues in favour of the respondent and passed a decree directing the appellant no. 1 to execute a sale deed in respect of his one-third share in the said properties in favour of the respondent after receiving the balance amount of Rs. 7,000/- within sixty days from that date. Against this decision all the appellants jointly filed an appeal, being Title Appeal No. 4 of 2004, before the learned Additional District Judge, Fast Track, 1st Court, Kandi, Murshidabad. By the Judgment dated July 31, 2008, the learned first appellate Court held that since no appeal was filed against the said judgment and order of remand dated February 5, 1994 passed in the said Title Appeal No. 138 of 1989, there is no scope to go beyond the conclusion arrived in the said appeal, that the appellant no. 1 had agreed to sell his entire one-third share in the said family properties to the respondent at a price of Rs. 17,000/- and that the respondent was ready and willing to perform the said agreement for sale. By the said judgment and decree dated July 31, 2008, the learned first appellate Court further held that the said subsequent purchasers, being the added defendants were aware of the agreement between the appellant no. 1 and the respondent and as such they are not entitled to claim benefit under