Dina Nath Bhandari vs Parkash Chand Jain

P.C. Pandit, J.—On 11th February, 1964, Dina Nath resident of Ferozepur agreed to sell his two-storeyed shop, situate in Ludhiana City to Parkash Chand of Ludhiana, for Rs. 14,000/- and Rs. 4,000/- were received as earnest money. The sale-deed had to be executed and registered within a week from that date. If Dina Nath made a default, he was bound to return the earnest money and also pay Rs. 4000/- as liquidated damages on account of breach of contract. On the other hand, if Parkash Chand did not stick to the bargain, his earnest money was liable to be forfeited. The expenses of execution and registration of the sale-deed had to be paid by Parkash Chand. In July, 1964, Parkash Chand brought a suit against Dina Nath for specific performance of this agreement and in the alternative, a decree for Rs. 8,000/-, Rs. 4000/- as the earnest money and the remaining Rs. 4,000/- as Liquidated damages. His allegations were that while he was always ready and willing to perform his part of the contract, the defendant was not prepared to do so and the latter was, therefore, guilty of breach of contract.

When notice of this plaint was given to the defendant, he did not appear, but in his place, his wife Shrimati Lajwanti came to Court and made an application under Order 32, rules 3(1) and 15 of the Code of Civil Procedure, to the effect that her husband Dina Nath was not of sound mind and, therefore, incapable to defend the suit and the prayer made was that she be appointed as his guardian-ad-litem.

This application was opposed by the plaintiff with the result that an issue was struck to the effect whether the defendant was of unsound mind or suffering from mental infirmity so as to require the appointment of a guardian-ad-litem. Evidence was then led on this issue both by the plaintiff and the defendant''s wife.

On 26th April, 1965, Miss Santosh Mehta, Subordinate Judge, 1st Class, Ludhiana, who was trying the suit at that time, after considering the evidence, came to the conclusion that the defendant was not of unsound mind or suffering from any mental infirmity and, therefore, no appointment of a guardian-ad-litem was necessary in the case. The application was, consequently, dismissed. In the order, it was mentioned that the defendant was accordingly proceeded ex-parte. But it, however, appears that later on be turned up and defended the suit. The written statement was then filed by him through his wife as his special attorney.

The suit was contested on a number of pleas. The execution of the agreement dated 11th February, 1964, was denied. It was said that the agreement was the result of misrepresentation, fraud, undue influence and under pressure and, therefore, the same was not binding on the defendant. It was further said that Rs. 4,000/- by way of earnest money, were not received. It was pleaded that it was the plaintiff, who was not willing and ready to perform his part of the contract and, consequently, he was not entitled to the specific performance of the agreement.

On the pleadings of the parties, the following issues were framed:-

Whether defendant executed agreement of sale dated 11th February, 1964, in favour of the plaintiff?

If so whether the same was got executed under undue influence, fraud, misrepresentation, undue pressure, and while the defendant was suffering from any infirmity of the mind, if so to what effect?

Whether the plaintiff paid any amount by way of advance or earnest money to the defendant at the time of the alleged execution of the agreement, if so, what amount?

Whether the plaintiff has been ready and willing to perform his part of agreement?

Whether the plaintiff is entitled to specific performance of this agreement, if so, on what terms?

Otherwise whether the plaintiff is entitled to any damages, if so, what amount?

If issues Nos. 1, 3 and 4 go in favour of the plaintiff then whether he is not entitled to the refund of the earnest money?

Whether the suit is not correctly valued for purposes of Court fee and jurisdiction?

The trial Judge held that the defendant had executed the agreement of sale, but not under undue influence, fraud, mis-representation or undue pressure The plaintiff had paid Rs. 4,000/- as earnest money to the defendant. After having found that the plaintiff was ready and willing to perform his part of the agreement and it was the defendant, who was guilty of its breach, the trial Judge decreed the suit for specific performance on payment of an additional sum of Rs. 10.000/- to the defendant, including Rs. 4,000/-, which had already been paid by way of earnest money. Against this decree, the present appeal has been filed by the defendant.

Learned Counsel for the appellant has argued mainly two points before us and they pertain the issues Nos. 1 and 2. It was, however, also urged by him that, in any case, a decree for specific performance should not have been granted in this case and the plaintiff could have been given a decree for Rs. 8,000/- as mentioned in the agreement.

The main point that was argued before us is covered by issue No. 2, namely, whether the agreement was executed under undue influence, fraud, misrepresentation, undue pressure and while the defendant was suffering from any infirmity of the mind, because so far as issue No. 1, regarding the execution of the agreement of sale, is concerned, Learned Counsel could not point out anything substantial to reverse the finding of the trial Judge thereon, in the face of the evidence of the scribe and the attesting witnesses of the said agreement. They had come into the witness-box and deposed that the agreement had been executed and signed by the defendant, when he was in his proper senses and knew that he was actually doing. As I have already said, the finding of the learned trial Judge on issue No. 2 is against the appellant. It would be proper to set down the exact position taken by the defendant on this point in the written statement. The same is contained in his legal objection No. 2, which reads:

That the alleged contract for sale dated 11th February, 1964, is the result of misrepresentation, fraud, undue influence and undue pressure, the defendant being suffering from infirmness of the brain and mind and the defendant also haunted by imaginary voices.

It would thus be seen that the allegations made were quite vague and indefinite, because when the Learned Counsel was arguing this point, he merely confined his submissions to the mental infirmity of the defendant due to his advanced age and is being haunted by evil spirits. But in the pleadings, everything has been mentioned, e.g. misrepresentation, fraud, undue influence, under pressure and suffering from infirmness of the brain and mind and also that the defendant was haunted by imaginary voices. All possible pleas that one could take u/s 16 of the Indian Contract Act, and perhaps even more, were mentioned in the written statement. No particulars in support of the plea, however, were given therein as required by the provisions of Order 6, rule 4, Code of Civil Procedure. It would be pertinent to mention what the Supreme Court has observed on this point in Ladli Prasad Jaiswal Vs. Karnal Distillery Co. Ltd. and Others,

Order 6, rule 4, Civil Procedure Code, provides, inter alia, that in all cases in which the party pleading relies on undue influence, particulars shall be stated in the pleading. The reason of the rule is: A plea that a transaction is vitiated because of undue influence of the other party thereto, gives notice merely that one or more of a variety of insidious forms of influence were brought to bear upon the party pleading undue influence, and by exercising such influence, an unfair advantage was obtained over him by the other. But the object of a pleading is to bring the parties to a trial by concentrating their attention on the matter in dispute, so as to narrow the controversy to precise issues, and to give notice to parties of the nature of testimony required on either side in support of their respective cases A vague or general plea can never serve this purpose; the party pleading must therefore be required to plead the precise nature of the influence exercised, the manner of use of the influence, and the unfair advantage obtained by the other. This rule has been evolved with a view to narrow the issue and protect the party charged with improper conduct from being taken by surprise. A plea of undue influence must, to serve that dual purpose, be precise and all necessary particulars in support of the, plea must be embodied in the pleading; if the particulars stated in the pleading are not sufficient and specific the Court should, before proceeding with the trial of the suit, insist upon the particulars, which give adequate notice to the other side of the case intended to be set up.

Learned Counsel confined his arguments to what is contained in section 16(2)(b) of the Contract Act and submitted that the defendant''s mental capacity had been temporarily affected by reason of age and mental distress. It may be stated that this precise pleading was not even mentioned in the written statement. What we have to consider is whether or not on 11th February, 1964, when the agreement was executed, the mental capacity of the defendant was temporarily affected in the manner suggested by his Learned Counsel.

I may at once state that no evidence has been produced by the defendant on this precise point. The evidence that has come on the record on behalf of the appellant consists of Dr. Sat Parkash Verma, Hakim Des Raj, Parkash, Chand, Shrimati Goran Devi, Ram Lal and Shrimati Lajwanti, T.D.Ws. Nos. 1 to 6. Lot of emphasis was laid on the evidence of Dr. Sat Parkash and that of Lajwanti, T.D.Ws. 1 and 6. T.D.W. 1 stated that he treated the defendant for two months and gave a certificate, Exhibit A. 1, which was dated 25th January, 1964. According to the said certificate, the defendant was suffering from "senile mental decay and mental amnesia". It is curious that according to this witness, he treated the, defendant in February and March 1964, but the certificate bore the date of 25th January, 1964, especially when in his evidence he had said that before that date the defendant was not suffering from any mental disease. Besides, he is not an independent witness. He is the neighbour of the defendant and does not charge any fee from him. He did not produce his own record which should show that he ever examined the defendant. He did not even bring the register of his patients, whom he examines every day. It is significant to mention that when he is alleged to have examined the defendant, he did not even talk to him and keep him under observation. The medical examination of the defendant by him, was, consequently, rightly turned down by the learned Subordinate Judge on the ground that it was too cursory and sketchy. He is a Sub-Assistant Surgeon and not an expert in mental diseases. Therefore, it is difficult to rely on his evidence to firmly hold that the mental capacity of the defendant was temporarily affected by reason of age or mental distress on 11th February, 1964.

Coming to the evidence of Hakim Des Raj, T.D.W. 2, he stated that the defendant was not keeping good health "mentally''. He used to recite poems in Persian and other languages and had blind faith in evil spirits, Sadhus and Saints. According to him, the defendant used to do eccentric things. This witness again cannot be called independent. He is a friend of the defendant and used to collect rent for him for the shop in dispute for 21 years from 1934 to 1955 The defendant used to stay with him whenever the former went from Ferozepur to Ludhiana City and it is also significant to mention that this witness, who is a Hakim, never treated the defendant.

We are then left with the evidence of Parkash Chand, Goran Devi, Ram Lal and Lajwanti, T.D.Ws. 3 to 6, all of whom are admittedly relations of the defendant. T.D.W. 3 is a rtlative, T.D.W. 4 the aunt, T.D.W. 5 the father-in-law and T.D.W 6 the wife of the defendant. According to Parkash Chand, T.D.W. 3, the defendant was not keeping mentally fit and was prove to talk loosely. All that Goran Davi, T.D.W. 4, had stated was that for the last six years, the defendant was not able to appreciate what was in his interest and he remained absent from his house. According to T.D.W. 5, the defendant was not keeping mentally fit for the last four or five years.

We have been taken through this evidence by the Learned Counsel for the appellant and I find that it is not possible to disturb the finding of the learned Subordinate Judge on this point. It is noteworthy that Miss Santosh Mehta, Subordinate Judge, who previously tried the case, had examined the defendant in Court and according to her, he gave relevant answers to the various questions put to him for about an hour and her finding was that the defendant was not suffering from any such infirmity of mind, which would incapacitate him for directing his affairs on his own.

It may be stated that the plaintiff has also examined a number of witnesses, namely, Har Gobind Ram, Shambu Dass, Ram Asra, Labhu Ram and Ved Parkash. T.P. Ws. Nos. 1 to 5, who have stated that the defendant was not suffering from any mental infirmity. This apart, the lerrned Subordirate Judge has also relied on three letters Exhibits P. 1 to P. 3, written by the defendant himself. Exhibit P. 2 was written on 23rd December, 1963, and Exhibit P. 3 on 22nd January, 1964, by the defendant to Shankar Dass, property-dealer, and the plaintiff respectively, which showed that the defendant had entered into the transaction after fully appreciating its nature with the help of the property-broker. The letter, Exhibit P. 1, was written to the plaintiff on 12th February, 1964, i.e. the next day when the agreement in question was executed, and by that he informed the addressee of the date when the sale w as to be executed. These letters, as rightly pointed out by the Court below, leave no doubt that the defendant was in his full senses and understood the implications of what he was doing.

It may be mentioned that the Learned Counsel made a grievance of the fact that the trial Judge, in giving a finding against the appellant on issue No. 2, had not considered the evidence produced by the defendant''s wife in support of the application made by her under Order 32, rules 3(1) and 15, Code of Civil Procedure. With regard to that evidence, it may be stated that Dina Nath was not a party to the same, because it was being led by his wife Lajwanti, and if the defendant himself was not bound by it, it could not surely be said that the plaintiff would be so bound. This apart, that application was decided against Lajwanti and no revision was filed against that order in this Court. It is also significant that the appellant has not even taken any ground of appeal with regard to that matter in this Court. He did not say that in arriving at an adverse finding on issue No. 2, the trial Judge bad not taken into consideration the evidence produced by his wife in support of her application under Order 32, rules 3(1) and 15, Code of Civil Procedure. It is also noteworthy that the appellant did not get that evidence even printed in the paper-book. Besides, there is another objection that when this evidence was being adduced, issue No. 2 had not yet been struck by the Court, and that being so, the plaintiff could not have possibly cross-examined the witnesses produced by the defendant''s wife regarding the point in question. A specific issue No. 2 was framed subsequently on this point after the written statement had been filed by the defendant and under that issue, the entire relevant evidence should have been produced by the parties. In determining this precise question, therefore, that evidence, in my view would not be admissible, Be that as it may, in order to avoid any controversy, however, we permitted the Learned Counsel to take us through that evidence as well and after going through the same, we are not inclined to reverse the finding of the learned Judge on issue No. 2. The same is, consequently, affirmed.

It was also argued by the Learned Counsel for the appellant that the price paid for the shop in question was so inadequate that from that fact a presumption might be drawn by the Court that the agreement was unconscionable and, therefore, it should fur her be presumed that the defendant''s mental capacity was temporarily affected by reason of age and mental distress when he entered into the same. On this point, the Learned Counsel referred to the evidence of Hakim Des Raj, Goran Devi, Ram Lal and Lajwanti, T.D.Ws. Nos. 2, 4, 5 and 6 and submitted that the price settled was very low.

According to Hakim Des Raj, the shop was worth Rs. 30,000/- or Rs. 35,000/- but in cross-examination, he admitted that he did not sell or purchase any property in that part of the locality where the shop in question was situate. He did not know of any sale transaction in the said area. His opinion, therefore, is not worth much in determining the value of the property. Goran Devi, Ram Lal and Lajwanti, as I have already said, are all relations of the defendant and their evidence, therefore, cannot be called independent. It is somewhat curious that not a single instance of any sale transaction in the locality has been produced by the defendant. On the other hand, the plaintiff has produced two sale-deeds, Exhibits P.W. 7/1 and P.W. 8/1. They relate to the sale transactions of two houses in the same area and after examining them, we are satisfied that the sale-price settled for the shop in question on 11th February, 1964, was quite reasonable.

Lastly, it was submitted that, in any case, the learned trial Judge should not have granted a decree for specific performance of the agreement. Instead, the plaintiff could have been given a decree for Rs. 8,000/-.

No precise reason had been given by the Learned Counsel as to why we should change this decree and convert it into one for the recovery of Rs. 8,000/-, Rs. 4,000/- on account of the return of earnest money and Rs. 4,000/- as liquidated damages. The relevant portion of section 10 of the Specific Relief Act, 1963, which deals with this point, reads thus:

Except as otherwise provided in this Chapter, the specific performance of any contract may, in the discretion of the Court, be enforced-

(a) when there exists no standard for ascertaining the actual damage caused by the non-performance of the act agreed to be done; or

(b) when the act agreed to be done is such that compensation in money for its non-performance would not afford adequate relief.

Explanation.-Unless and until the contrary is proved, the Court shall presume-

(i) that the breach of a contract to transfer immovable property cannot be adequately relieved by compensation in money; and

(ii) * * *

It would be noticed that in the explanation referred to above, it is clearly mentioned that unless and until the contrary is established, the Court will presume that the breach of a contract to transfer immovable property cannot be adequately relieved by compensation in money and that being so, the decree for specific performance of the agreement has been rightly passed, because the defendant has not brought anything on the record to show that the plaintiff could be suitably compensated by the award of liquidated damages in this case. No valid reason has been given as to why we should make a departure from this general view. This contention also is, therefore, without any substance.

The result is that this appeal fails and is dismissed, but taking into consideration ail the circumstances of the case, we would leave the parties to bear their own costs throughout.

Gopal Singh, J.

I agree.