Sanjoy Debnath vs Sharmila Basak (Deb)

This second appeal was admitted for hearing on the following questions of law:

"1. Whether the judgment and decree passed by the appellate court suffers from perversity?

Whether Exbt.1 has not been interpreted by the trial court and the appellate court according to law?"

At the outset, I may briefly refer to the facts of the case as pleaded by the appellant. The respondent had offered to sell to the appellant the suit land measuring 0.13 acre situate at Mouja-Dukli, which is the share she had acquired from her parental property through amicable settlement among the co-sharers. After satisfying the condition of the suit land, he agreed to purchase the same at a consideration of Rs.2,50,000/-, for which an agreement of sale was executed on 12-10- 2007 between him and the respondent; he paid an earnest money of Rs.50,000/- on the same day. It was agreed therein that the balance amount of Rs.2,00,000/- would be paid by him within 11-10-2010 and on the receipt whereof, a sale deed would be executed by the respondent in his favour. From 16-1-2010 onwards, the appellant approached the respondent from time to time offering her payment of the balance amount to carry out the said agreement of sale, but the respondent refused to oblige him. This prompted him to issue pleader's notice to the respondent on 26-7-2010 to enforce the agreement and requested her to accept the balance amount, but she failed to do so. This was how the suit for specific performance of contract.

The suit was contested by the respondent by filing her written statement. The principal plea taken by her in resisting the suit is that she never executed any agreement of sale or received any amount from the appellant as an advance for selling the suit land to him; she had never come to Agartala for the purpose of execution of notorized agreement of sale. She, therefore, contended that there was thus no question of enforcement of specific performance of contract and the suit was thus liable to be dismissed.

On the pleadings of the parties, the following issues were framed by the trial court:

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

Whether the landed property including the suit land belonged to the deceased father of the defendant, Smt. Sharmila Basak (Deb) was partitioned amongst the legal heirs of Lt. Pratap Ch. Deb;

Whether the defendant Smt. Sharmila Basak (Deb) has got the suit land out of a family settlement amongst the legal heirs of Lt. Pratap Ch. Deb?

Whether on 12.10.07 the defendant Smt. Sharmila Basak (Deb) entered into an agreement in writing with the plaintiff Sri Sanjoy Debnath in respect of transfer of the suit land to the plaintiff by executing any sale deed on receipt of Rs.2,50,000/-?

Whether on 12.10.07, the defendant Smt. Sharmila Basak (Deb) received Rs.50,000/- from the plaintiff Sanjoy Debnath as advance out of the total price of the suit land?

Whether the plaintiff is entitled to get any decree as prayed for in his plaint?

To what other relief/reliefs the parties are entitled to get?"

To substantiate his case, the appellant examined as many as 7 witnesses and exhibited some documents. On the other hand, the respondent examined herself and adduced some documentary evidence to prove her defence. At the conclusion of the trial, the learned Civil Judge (Senior Division) decided all the issues against the appellant and dismissed the suit. Aggrieved thereby, the appellant preferred the first appeal being Title Appeal No.27 of 2013 before the learned Additional District Judge (Court No.5), West Tripura. The appellate court disagreed with the findings of the trial court that the respondent did not execute the agreement of sale or did not receive the earnest money. It recorded the findings that the respondent being an educated lady working as LDC in a Government office could not say that she signed the document without knowing its contents; her signature in the agreement logically concluded that she knew about its contents. It, therefore, held that she not only executed the agreement but also received the earnest money. As for Issues No.2 and 3, the appellate court agreed with the findings of the trial court that the appellant could not prove that the parental property was amicably partitioned as no memorandum recording the oral partition of the joint family property as a family settlement was non-existent. The appellate court observed that even if the execution of the agreement was proved, in the absence of proof of valid partition of the joint property, enforcement of such an agreement would invite many complications such as intrusion of an outsider in the joint family property. It, therefore, held that the appellant was not entitled to decree for specific performance, but would only be entitled to refund of the earnest money, i.e. Rs.50,000/- with 15% interest from the date of execution of the said agreement till payment. Still dissatisfied with this, the second has been filed.

There is a concurrent finding of facts by the trial court as well as the appellate court that the appellant could not prove that the parental property was amicably partitioned as no memorandum recording the oral partition of the joint family property as a family settlement was non-existent. There is thus a definite finding by both the courts below that there was no amicable partition of the joint family property. Section 100, CPC as amended in 1976 has drastically cut down the scope of the section. The law is now settled that the High Court, in a second appeal, cannot reverse the concurrent findings of the courts below under ordinary circumstances. However, in deciding a second appeal in the proper perspective, the High Court may have to enter into a question of fact, and if the courts below have patently gone wrong in casting the burden of proof or has misread the evidence or has not considered the basic requirements to substantiate the case, it cannot be said that the High Court cannot re-appreciate the evidence to correct the mistake committed by the courts below. Section 101, Evidence Act has clearly laid down that the burden of proving a fact always lies upon the person who asserts it. Until such burden is discharged, the other party is not required to be called upon to prove his case. The court has to examine as to whether the person upon whom the burden lies has been able to discharge his burden. Until he arrives at such conclusion, he cannot proceed on the basis of weakness of the other party. In Kesharbai alias Pushpabai Eknathrao Nalwade (Dead) LRs. V. Tarabai Prabhakarrao Nalwade and others, (2014) 4 SCC 707, the Apex Court observed:

"Undoubtedly the joint and undivided family being the normal condition of a Hindu family, it is usually presumed, until the contrary is proved, that every Hindu family is joint and undivided and all its property is joint. This presumption, however, cannot be made once a partition (of status or property), whether general or partial, is shown to have taken place in a family. This proposition of law has been applied by this Court in a number of cases. We may notice here the judgment of this Court in Bhagwati Prasad Sah v. Rameshwari Kuer AIR 1952 SC 72, wherein it was inter alia observed as under:

'7. Before we discuss the evidence on the record, we desire to point out that on the admitted facts of this case neither party has any presumption on his side either as regards jointness or separation of the family. The general principle undoubtedly is that a Hindu family is presumed to be joint unless the contrary is proved, but [where it is admitted] that one of the coparceners did separate himself from the other members of the joint family and had his share in the joint property partitioned off for him, there is no presumption that the rest of the coparceners continued to be joint. There is no presumption on the [other] side too that because one member of the family separated himself, there has been separation with regard to all. It would be a question of fact to be determined in each case upon the evidence relating to the intention of the parties whether there was a separation amongst the other coparceners or that they remained united. The burden would undoubtedly lie on the party who asserts the existence of a particular state of things on the basis of which he claims relief.'

This principle has been reiterated by this Court in A. Raghavamma v. A. Chenchamma AIR 1964 SC 136."

The only question to be determined now is whether the aforesaid finding of the courts below suffers from any perversity. As already noticed, the burden of proof that there was partition of the joint family property of the respondent lies on the appellant once the respondent asserted to the contrary. At this stage, it may be noted that oral partition can also be acted if the partition is proved; it is not necessary that the partition should be reduced to writing. I have carefully examined the evidence of PW-1, PW-2, PW-3, PW-4 and PW-5 to find out any material upon which it could be said that oral partition was ever effected in respect of the joint family property. No such evidence is forthcoming. Even the evidence of the appellant (PW-1) is not clear-cut enough to give an impression that any partition had already taken place in the joint family property of the respondent; not even a single witness from the family or in the neighbourhood came forward to give a categorical statement to that effect. It may be illuminating to reproduce below the statement of the appellant in his examination-in-chief by affidavit:

"1. That, I entered into an agreement with Smt. Sarmila Basak (Deb) for purchasing the suit land which is the share of the Defendant which she owned from the ancestral property, measuring 0.13 acre (from deceased father).

(Italics supplied)

Not even a whisper of statement is made that the ancestral property has been partitioned by allotting the share of the respondent. A Hindu family is presumed to be a joint family until and unless the contrary is proved. On the evidence led by the appellant, I am constrained to observe that the appellant has miserably failed to prove that the suit land agreed to be purchased by him from the respondent has been partitioned from the joint family property. In the absence of valid partition, there is no question enforcing the agreement. The appellant did not even bother to implead the remaining members of the joint family of the respondent, who could be the co-sharers as party. In the absence of proof of valid partition, the appellate court took a correct view of law in holding that the appellant is not entitled to specific performance of the agreement dated 12-10-2007 executed by him with the respondent. In any case, under Section 20, Specific Relief Act, discretion is given to the court to decline to enforce specific performance of contract if to do so would iniquitous. In my opinion, the view take by the appellate court in declining to enforce the agreement on the ground stated in the impugned judgment is a possible view, which cannot be substituted by this Court in exercise of its second appellate jurisdiction.

For the foregoing reasons, there is no substantial question of law in this appeal. The appeal stands dismissed with cost. Let a decree be prepared accordingly. Transmit the LC record forthwith.