Musammat Ramdulari Kuer vs Jagabahadur Singh and Others

Macpherson, J.—This appeal is preferred by the widow and legal representative of the defendant, the suit against whom was dismissed by the Trial Court but decreed in part by the District Judge on appeal.

The case for the plaintiffs was that Rai Bindheshwari Prasad on or before the 4th December 1916, in anticipation of a decree on com promise which he eventually obtained on 15th December against Mathura Prasad for Rs. 19, 145-9-1 contracted to sell the decree to the plaintiffs and their father, Ramphal Singh, for Rs. 18,000 and took Rs. 3,000 at once out of the stipulated consideration and on the nth January 1917 executed an agreement (Exhibit 1) in favour of Ramphal Singh to sell the aforesaid decree to him, mentioning therein that Rs. 2,000 had been paid, though in fact Rs. 3,000 had been paid. The plaintiffs inter alia alleged as follows:

That Babu Ramphal Singh, the plaintiffs'' father lived jointly with them and they were members of a joint family governed by the Mitakshara School. Fe died while living jointly with the plaint if s and leaving the plaintiffs behind him. The plaintiffs entered upon possession and occupation of the entire property belonging to the joint family by right of survivorship.

The defendant failed to execute the deed of sale in spite of notice from the plaintiffs and on the other hand realised the decretal money from Mathura Prasad by execution of the decree which he had contracted to sell to plaintiffs. The plaintiffs, therefore, claimed Rs. 4,522-9-1 made up of Rs. 3,000 paid to the defendant Rs. 1,145-9-1 damages and interest.

The defences were that non-execution was due to the laches of the plaintiffs, that only Rs. 2,000 had been advanced and that the contract was void as Ramphal Singh had died before the nth January 1917 when the contract was executed.

The Trial Court found that the contract was complete before 4th December but sustained the defence that non-execution of the sale-deed was due to the inexcusable laches of the plaintiffs in spite of notice from the defendant to execute the kewala and held that the plaintiffs were accordingly not entitled to recover the deposit of Rs. 2,000, even though there was no express stipulation for forfeiture in case of default. As to the death of Ramphal Singh it was found to have occurred on the 20th December 1916 but the learned Subordinate Judge held that the matter was not affected by his death inasmuch as the agreement did not appear to be a personal one in his favour.

The lower Appellate Court held that it was not proper to apply to Exhibit 1 a construction at variance with its terms which he considered were a promise to execute a sale-deed in favour of Ramphal Singh personally and that this promise became incapable of fulfilment on his death; accordingly the plaintiffs could not enforce a penalty clause against the defendants, and equally the defendants'' claim was Untenable that the plaintiffs forfeited the earnest money (1) since on the defendant''s own showing there was uncertainty in the contract on the question in whose favour the deed should be executed, and (2) since the deed was not signed by Ramphal Singh or by any one on his behalf. As the death of Ramphai Singh had rendered the contract incapable of fulfilment and, therefore, void or in the alternate as it is or had become void for uncertainty the defendants must refund Rs. 2,000 the earnest money with interest to the plaintiffs.

In second appeal by the widow and heir of the defendant it is submitted had the contract which was admittedly entered into on the 3rd or 4th December 1916 was capable of performance since it was entered into by the joint family and the money was advanced from the joint family funds.

In reply it is contended that there is a clear finding of fact that the contract was a personal one and the ear rest money. could not be forfeited except for default and Ramphal Singh was not in default.

No other contention was advanced and indeed the arguments in the appeal have hardly extended beyond a statement of these propositions.

The peculiarity of the present position is that each party relies upon the pleadings of the other. The question for decision is, therefore, whether the contract of appellant''s husband was a personal one with Ramphal Singh or one with him as karta of the joint family of which respondents, his sons, are the surviving members. It is admitted that if it is not found to have beer, a contract with the joint family of which Ramphal Singh was haft a this appeal must fail.

Now the findings of the First Court on this point are very far from confident. After deciding that the contract was complete be ore the 4th December 1917, he proceeds "Besides the contract does not appear to be of a purely personal nature; Ramphal Singh was a member of the plaintiffs'' joint family and the plaintiffs themselves appear to have been paid the earnest, money. He relies on the fact that such had been the case of defendant in his first, written statement as well as of plaintiffs.

The learned District Judge relying upon the fact that the document itself is expressed as being in favour of Babu Ramphal Singh and not in favour of him and his heirs or of him and other members of his family, finds that the contract is of a personal nature so that it did not bind the executants to execute a sale-deed in favour of any one but Ramphal Singh. Here he accepts the case made by defendant in his second written statement and displaces the hesitating finding of the Trial Court. No copy of Exhibit X has been produced and thus this Court is restricted to the information obtainable from the paper-book. It appears, therefore, that the question whether the contract was personal or was entered into by the joint family consisting of the respondents and their father is disposed of by the finding of fact of the lower Appellate Court when he holds that the defendant did not bind himself to execute a sale-deed in favour of any person but Ramphal Singh himself. It has not been contended before us on the strength of Section 37 of the Indian Contract Act, 1872, or otherwise, that the respondents as heirs and representatives of their father (as distinguished from members of the same joint family with him) are bound by his agreement to purchase.

In our opinion in the circumstances of the case the decision of the lower Appellate Court is correct. The appeal accordingly fails and is dismissed with costs.

Das, J.

I agree.