Hari Singh (Deceased) Represented By His Lrs. vs Gurmej Kaur and Others

D.V. Sehgal, J

Hari Singh Plaintiff-Appellant filed a suit for specific performance of an agreement to sell dated 3.6.1974 executed between him and Sohan Singh predecessor in-interest of Defendant-Respondents Nos. 1 to 8, alleging that the latter had agreed to sell land measuring 77 kanals 5 marlas described in the plaint to him for a sum of Rs. 100,000/-. Out of this amount, Rs. 45000/- were paid and received by Sohan Singh deceased on 3.6.1974 at the time of execution of the agreement. Rs. 35000/- were to be paid to Ram Rani and Bimla Devi, the previous mortgagees of the land, and Rs. 20000/- was to be paid before the Sub Registrar at the time of execution and registration of the sale deed. A sum of Rs 4000/- was received from him by Sohan Singh vide receipt dated 6.11.1974. He alleged that it was agreed upon between the parties to the agreement that in case of failure to execute the sale deed, the defaulting party shall be liable to pay Rs. 45000/- as damages in addition to refund of earnest money. He was ready and willing to pay the balance amount of consideration and get the sale deed executed in his favour but Sohan Singh backed out of his obligation. Sohan Singh died in the meantime and he filed the suit for specific performance impleading Respondents Nos. 1 to 8 as his legal representatives.

Respondents Nos. 1 to 8 contested the suit. They denied that Sohan Singh had executed any agreement dated 3.6.1974 or that he received Rs. 45000/- as earnest, money. They further averred that Sohan Singh did not commit breach of contract ; that the land in dispute was a joint Hindu family property and Sohan Singh was not competent to sell the same; the agreement was without consideration, legal necessity and was not binding on them. On the pleadings of the parties, the learned trial Court framed the following issues: -

Whether Sohan Singh agreed to sell the suit land to the Plaintiff vide agreement dated 3.6.1974 ? OPP

Whether Sohan Singh deceased received Rs. 45000/- as earnest money ? OPP.

Whether Sohan Singh committed breach of contract, if so, its effect ? OPP.

Whether the Plaintiff was and. is willing to perform his part of the contract ? OPP.

Whether the suit land is joint Hindu family property, if so, its effect ? OPP.

If issue No. 5 is proved whether agreement in dispute was without consideration, legal necessity and not binding on the Defendants ? OPD.

Whether Sohan Singh was not competent to execute the agreement in dispute ? OPD

Relief.

After receiving evidence, the learned trial Court decided issues Nos. 1 to 4 in favour of the Appellant and issues Nos. 5 to 7 against the Defendants. However, at the end he did not grant a decree for specific performance of the agreement and instead passed a decree for Rs. 49000/- in favour of the Appellant and against the aforesaid Respondents. The decretal amount was made a charge on the land in dispute.

Dissatisfied with the relief granted by the trial Court, the Plaintiff Appellant has filed the present Regular First Appeal in this Court.

1 have heard the learned Counsel for the parties. I find that there is no infirmity in the finding recorded by the learned trial Court on issues Nos. 1 to 7. The agreement to sell exhibit P1 stands proved from the statements of Jagjit Singh (PW) who is its scribe. Gurdeep Singh (PW4) and Sucha Singh (PW5). Besides proving execution of the agreement exhibit P1 by Sohan Singh, they have also proved that a sum of Rs. 45000/- was paid by the Appellant to Sohan Singh at the lime of its execution. Likewise receipt exhibit P2 and payment of the amount of Rs. 4000/- as evidence by it to Sohan Singh by the Appellant are also proved by Jagjit Singh (PW1) who is its scribe and Sucha Singh (PW5). Hari Singh Appellant appearing as PW7 deposed that he went to the office of Sub-Registrar and made the application exhibit P5 stating that he was ready and willing to make payment of the balance amount of consideration but Sohan Singh had not come forward to execute the sale deed. He also executed an affidavit exhibit P3 on that very day. He sent notice exhibit P6 to Sohan Singh to execute the sale deed but he did not respond. He also sent to him notices exhibit P8 to P11 but he refused to receive the same. The fact that these notices were duly sent, is evidenced by the postal receipts exhibits P12 to P15. Thus no doubt is left that breach of the agreement was caused by Sohan Singh and the Appellant was ready and willing to perform his part of the contract. No evidence was produced on behalf Respondents Nos. 1 to 8 that the land in dispute is joint Hindu family property. There is a bare statement of Gurbachan Singh that the land is ancestral but this solitary statement uncorroborated by any documentary evidence is not sufficient to discharge onus under issue No. 5. No evidence was led on issues Nos 6 and 7. Consequently, the finding of the trial Court on all these issues is affirmed,

The learned trial Court declined to grant the relief of specific performance of the agreement to sell in favour of the Appellant by observing that it had tome in evidence that Sohan Singh had died; that a contract is a personal obligation of a party to it and the obligation thereunder ceases on the death of a party; that specific performance of the same cannot be claimed against legal representatives of the party. The learned Court has placed reliance on Hem Chandra Chakravarti and Others Vs. Sarabala Datta and Others, On going through this judgment, I do not find any proposition having been laid which might support the view taken by the learned trial Court.

Learned Counsel for the Appellant on the other hand has relied on U Dun Htaw and Anr. v. Maung Awa A. I. R. 1929 Rang. 274, Bindeshwari Ahir and Another Vs. Bishwanath Singh and Others, and Rambaran Prosad Vs. Ram Mohit Hazra and Others, to contend that Respondents Nos. 1 to 8 in their capacity as legal representatives of Sohan Singh are liable to discharge the obligation under the agreement exhibit P 1 and decree for specific performance ought to have been granted against them. I find force in this submission.

Section 19(b) of the Specific Relief Act, 1963 (for short'' the Act'') lays down that except as otherwise provided in the Act, specific performance of a contract may be enforced against any other person claiming under him by a title arising subsequently to the contract, except a transferee for value who has paid his money in good faith and without notice of the original contract. Section 37 of the Contract Act, 1872 provides that the parties to a contract must either perform or offer to perform their respective promises, unless such performance is dispensed with or execused under the provisions of this Act, or of any other law. Promises bind the legal representatives of the promisors in case of the death of such promisor before the performance, unless a contrary intention appears from the contract Section 40 of the Contract Act ibid lays down that if it appears from the nature of the case that it was the intention of the parties to any contract that any promise contained in it should be performed by the promisor himself, such promise must be performed by the promisor. In other cases, the promisor or his representatives may employ a competent person to perform it. It is thus clear that subject to certain exceptions which have no application to the present case contract, in the absence of a contrary intention express or implied, is enforceable by and against the parties and their heirs and legal representatives. The view taken by the learned trial Court is, therefore, clearly against the statutory law. I find no reason why the decree for specific performance of the agreement to sell exhibit P 1 should not have been granted in this case.

I, therefore, allow this appeal with costs, set aside the judgment and decree of the trial Court and decree the suit of the Appellant for possession of 77 kanals 5 marlas of land, described in the plaint, by specific performance of the agreement to sell dated 3.6,1974 The Appellant shall deposit the balance amount of consideration along with necessary charges for stamp duty and registration fee within three months from today and Respondents Nos. 1 to 8 shall execute a sufficient instrument in the form of a sale deed in his favour.