AI Structured Summary
Not yet generated for this judgment
Judgment
A.L. Bahri, J.—This second appeal is directed against the judgment and decree of District Judge, Patiala dated August 14, 1978 whereby appeal filed by Ujagar Singh defendant was accepted while reversing the judgment and decree of the trial Court The suit filed by Chetan Singh and others for specific performance of contract for exchange dated August 26, 197i in respect of agricultural land measuring 9 Bigas, 17 Bigas situated in village Lachhman was decreed by the trial Court on December 20. 1976. Initially the present appeal was filed by six plaintiffs, namely Gurmel Singh. Chatan Singh. Gurcharan Singh, Richhpal Singh, Karnail Singh and Sidhu Singh. During pendency of the appeal, Gurmel Singh, appellant died and his legal heirs were brought on the record. Those included his brothers and parents. Subsequently some of the appellants moved an application for dismissal of tie appeal as withdrawn leaving only Chetan Singh and Karnal Singh appellants in the field.
Vide agreement dated August 26, 1979 Nek Singh alias Harnek Singh defendant had agreed to exchange 9-Bigas, 17-Bigas of land with the plaintiffs. Po session of land was exchanged. Since Exchange Deed was not executed the present suit was filed Egaiost Nek Singh alias Harnek Singh. Ujagar Singh was also impleaded as a party, as Harnek Singh had sold the disputed land to him The suit was contests by Harnek Singh as well as Ujagar Sing by filing a joint written statement. They denied the exchange as well as delivery of possession. Ujagar Singh claimed to be a bonafide purchaser without any notice of the exchange Thus, he claimed protection. Alternatively, it was pleaded that even if agreement was entered into, all the plaintiffs were not parties to the contract The same was void and not enforcible according to law The plaintiffs repudiated the pleadings of the defendants in the replication. The trial Court framed the following issues :-
Whether defendant N 3. 1 had executed an agreement in favour of the plaintiffs for the exchange of the suit land on 26 8-197 ? OPP
Whether defendant No. 1 had delivered possession of the suit land to the plaintiffs in view of the agreement of exchange of the suit land ? OPP
Whether the plaintiffs had delivered possession to defendant No. 1 of their land as alleged in para No. 2 of the plaint? OPP
Whether the plaintiffs have been ready and willing to perform their part of the agreement ? OPP
Whether defendant No. 1 has committed breach of the agreement ? OPD
Whether defendant No. 2 is the bonafide purchaser for valuable consideration and without notice of the agreement of exchange? OPD
Whether the plaintiff''s are entitled to the specific performance of she agreement dated 26 8-971 ? OPP
8 Relief.
Under issue No. 1 the trial Court held that Harnek Singh had executed the agreement dated August 2.6, 1971 in favour of the plaintiffs for exchange of the suit land. Under issues No. 2 and 3 it was held that there was delivery of physical possession of the exchanged land. Under issue No. 4 it was held that the plaintiffs were. ready and willing to perform their part of the agreement. Under issue No. 5 it was held that Harnek Singh committed breach of the contract under issue No. 6 it has held that Ujagar Singh had failed to prove that he was bona fide purchaser for consideration without the notice of the agreement of exchange. Under issue No. 7 the plaintiffs were held entitled to specific performance of the agreement. Hence the suit was decreed. The lower Appellate Court held that the agreement was entered into between Nek Singh alias Harnek Singh on one side and Chetan Singh plaintiff on the other side Chetan Singh entered into agreement for Myself and on behalf of his brothers, namely Karnail Singh, Sadhu Singh, Gurcharan Singh and Richhal Singh. Gruroel Singh plaintiff''s name was not mentioned in the agreement It was further held that Chetan Singh plaintiff and Harnek Singh defendant had physically exchanged the disputed land under the agreement Exhibit P/I. It was further held that subsequently Harnek Singh sold the said land in favour of Ujagar Singh The plaintiffs were ready and willing to get the exchange deed executed and registered, whereas Harnek Singh committed breach of the agreement. Ujagar Singh was not a bona fide purchaser of the suit land for valuable consideration and without notice of the agreement of exchange. The findings of the trial Court were affirmed Under issue No. 7 it was held that vide agreement Exhibit P/l which was executed by Chetan Singh plaintiff, he had agreed to give to Harnek Singh in exchange land which did not belong to him alone, but it was joint property of all the brothers. The agreement was entered into on behalf of his brothers except Gurmel Singh. At the time of the agreement, Gurmel Singh and Richhpal Singh plaintiffs were minors Chetan Singh did not obtain any permission from the Guardian Court before executing the agreement of exchange It was held that the transaction was not void ab initio but was voidable at the instance of the minors. Chetan Singh was not the natural guardian of Richhpal Singh and Gurmel Singh minors. The agreement was held to be void relating to the shares of the minors Richhpal Singh and Gurmel Singh and as such the contract as a whole was incapable of specific performance It was further observed that Harnek Singh could not have demanded the specific performance of the contract, because Chetan Singh could not enter into the contract on behalf of the two minors aforesaid, qua such appellants.
Since the contract is only signed by Chetan Singh, it is his case H is being disposed of in this appeal which is being pressed.
Chetan Singh has about 1/6th share in the land in dispute. Since he is unable to get the shares of other co-sharers transferred, which is a major portion, the exchange cannot be materialized. Specific performance of the part of the contract which is only a fraction thus cannot be permitted as required under .Section 12 of the Specific Relief Act. Reliance has been placed on behalf of Chetan Singh appellant on sub-section (4) of Section 12 of the Specific Relief Act. The learned counsel for the appellant has argued that since part of the contract can be performed qua the share of Chetan Singh, his share being separable, to that extent. contract may be performed, I am afraid this contention cannot be accepted. There is no part of the contract which can be separated as specifically performed. The alleged contract is compact one. Assuming for the sake of arguments, Chetan Singh''s 1/2th share can be exchanged being ascertainable, there is no reason to partition the other piece of land to be got in exchange. Further reliance has been placed on sub-section (4) of Section 20 of the Specific Relief Act by the learned counsel for the appellant which reads as under:-
"S 24(4) The Court shall not refuse to any part specific performance of contract merely on the ground that the contract is not enforceable at the instance of the other party "
Sub-section (4) reproduced above is part of the general policy contained in the provisions which is clotued with the Court''s discretion in the matter of specific performance of contracts Such discretion is to be exercised on sound and reasonable grounds glided by the judicial principles In the facts of the present case when part of the contract cannot be specifically performed being share of the minors aforesaid, Chetan Singh cannot take advantage of his act of effecting the exchange of land of the minors with that of the defendants, particularly when re cannot force his co -shares, including the two minors to complete the transaction of exchange. This is a case where agreement was entered into with respect to property of the minors and by not a natural guardian and without permission of the Court such a contract is neither divisible nor enforcible in the Court of law. In ibis respect reference maybe made to the decision of Patna High Court in Abdul Hoq v. Mohammad Yehja Khan A. I. R. 1924 Pat 81 . that "the Court will not, as a general rule compel specific performance of a contract unless it can execute the whole contract. It may be that the contract though n form one end entire, is in substance divisible, there is nothing to prevent the Court from carrying into effect that portion of it, which is capable of being carried into effect." It was further held that a contract for sale of property in one lot will generally be considere indivisible, for the reasons that there is obvious injustice in compelling the purchaser of the entirety to take undivided pads of shares of the estate Similar view was taken by the Patna High Court in Babu Rameshwar Prasad Sahi Vs. Mst. Anandi Devi and Another, .
In the present case, as already observed above, the agreement was entered into by Chetan Singh, who was not the natural guardian of the two minors Gurnmel Singh and Richhpal Singh The father of the alleged minors is alive and was subsequently impleaded as a party. Only natural guardian could deal with the property of the minors where the defecto guardian dealt with the property of the minors and that too without the permission of the Court the transaction would be void It was so held by Madras High Court in O. R. M. P. RM Ramanathan Chettiar v. P. S. L. Ramanathan Chettiar A. I. R. 1960 Mad 207.
It has been argued on behalf of the appellant that since the minors have taken benefit of the exchange, they are bound by the contract and specific performance of part of the contract against them can be performed. There is falacy in this argument. The revenue recoed produced does not show that minors have taken possession of the exchanged land, the possession seems to be in favour of Chetan Singh only. Thus, the ratio of the decision of Bombay High Court in Gujoba Tulsiram Vs. Nilkanth and Another, . holding as above is tot applicable to the case in hand. As a matter of fact a minor cannot enforce agreement for want of mutuality in the facts of the present case. In this respect reference can be made to the decision of Allahabad High Court in Bholanath Vs. Balbhadra Prasad and Others, .
Further reliance has been placed on the decision of Rajasthan High Court in Narpat Raj Vs. Babulal and Others, . but the ratio of the decision cannot be applied to the facts of the case fn hand. That was a case of compromise effected in Court where minor was a party and represented. In the present case the minors were not represented by the natural or appointed guardian at the time of execution of the agreement and there is no question of compromise effected in Court bearing seal of the Court.
Finding no merits in the appeal the same is dismissed with costs which would be borne by Chetan Singh appellant.