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Petitioner: NOWAB MEAN CHOWDHURY VS Respondent: SYED EZAZ-UD-DIN AHMED
P L D 1962 Dacca 655
P L D 1962 Dacca 655
Before Hasan and M. R. Khan, JJ
NOWAB MEAN CHOWDHURY‑Appellant
Versus
Syed EZAZ‑UD‑DIN AHMED AND OTHERS‑Respondents
Second Appeal No. 331 of 1958, decided on 20th July 1960.
(a) Specific Relief Act (I of 1877), S. 22 (I) (II)‑Section not exhaustive‑Instances in subsections (1) and (II)‑Illustrative-- Grant of specific performance‑‑Absolutely within Court's discretion to be exercised judicially depending on circumstances of each case-- No rigid rule as to when and where discretion is to be exercised.
Gaj Kumar Chand v. Lachman Ram A I R 1926 Cal. 1236 fol.
(b) Specific Relief Act (I of 1877), S. 22‑Court has discretion to refuse even lawful specific performance.
(c) Specific Relief Act (I of 1877), S. 22‑Specific perform ance‑Sought to be enforced against subsequent purchaser having right of pre‑emption‑Relief to be refused.
(d) Pre‑emption‑System of Law (i.e., Muhammadan) appli cable‑Determination of‑Intention of parties regarding sale and provision of law under which sale should be completed, a guiding principle to determine.
Sitaram Bhaurao Deshmukh and others v. Jiaul Hasan Sirajul Khan 48 I A 475 fol.
Abu Md. Abdullah and Syed A. N. M. Nasiruddin for Appellant.
Ahmed Sobhan for Respondent No. 1.
S. R Pal and Shafiqur Rahman for Respondent No. 2.
JUDGMENT
HASAN, J.‑This appeal, at the instance of the plaintiff, is directed against the judgment and decree passed in a suit for specific performance of contract.
2. The plaintiff ‑appellant instituted a suit, out of which this appeal has arisen, for specific performance of contract for sale against all the defendants failing that, in respect of the 7/10th share of defendant No. 1 (Syed Ejazuddin Ahmed) and defendant No. 2 (Syed Imamuddin Ahmed at proportionate price and in the alternative, for recovery from the said defendants Nos. 1 and 2 of a sum of Rs. 1664‑10‑0 paid as advance price and Rs. 1193‑7‑6 spent by the plaintiff for repairing the premises contracted to be sold.
3. The suit was contested by the defendants Nos. 1 and 4. Defendant No. 1 contended that he agreed to sell the property in question to the plaintiff provided he succeeded inducing the other co‑sharers to agree to sell the same and that the agreement was fraudulently obtained from him. The contention of the defendant No. 4, a lady, was that she or her mother did not enter into any contract to sell the premises in question to the plaintiff.
4. The two Courts below have taken two different views. The learned Subordinate Judge accepted the contentions of the plaintiff and decreed the suit for specific performance of contract against all the defendants and also held that the plaintiff paid to the defendants Nos. 1 and 2 a sum of Rs. 1664‑10‑0 as advance towards the price of the holding in question. The lower appellate Court accepted the finding of the trial Court to the effect that defendants Nos. 1 and 2 entered into a contract with the plaintiff but defendants Nos. 3 and 4 did not enter into any contract with the plaintiff. It also modified the amount, held by the trial Court, to have been paid by the plaintiff to the defendants Nos. 1 and 2. Hence the present appeal.
5. Mr. Abdulla, the learned Advocate for the appellant, has canvassed only five grounds before us which we deal as follows
6. He has challenged the finding of the lower Appellate Court as regards the case of the plaintiff's contract with the defendants Nos. 3 and 4. On this point the Courts below have differed. The trial Court accepted the contention of the plaintiff but the lower Appellate Court rejected the same. In order to come to the finding that there was no contract entered into by the defendants Nos. 3 and 4 with the plaintiff, the learned District Judge referred to the oral as well as documentary evidence. On the oral evidence it has been found by the trial Court that there is nothing in the deposition of the witnesses for the plaintiff to show that the defendants Nos. 3 and 4 entered into a contract with the plaintiff but the said Court has relied on certain circum stances in order to come to the finding that defendants Nos. 3 and 4 also entered into a contract with the plaintiff. These circum stances are custody of the title deeds, recital in Exhibit B, close relationship between the parties, price mentioned in Exhibit B, statements made in Exhibit 4 series, presence of the defendants Nos. 3 and 4 in the house of the defence witness No. 4 and on the 4th of June, 1948, and the Power‑of‑Attorney executed by the defendant No. 4. The learned District Judge has rejected the oral evidence of the plaintiff so far as the presence of the defen dants Nos. 3 and 4 at the house of D. W. 4 for the purpose of' executing a kabala, is concerned. All the oral evidence coming from the side of the plaintiff is directed only to prove the presence of defendants Nos. 3 and 4 at the house of defence witness No. 4 for the purpose of execution of Kabala by the said defendants.
This evidence of the plaintiff having been rejected by the lower Appellate Court, it cannot be said that the defendants Nos. 3 and 4 had been present in the house of the D. W. 4, on the 4th of June, 1948 for the purpose of executing a kabala in favour of the plaintiff. We do not find also any substance in the recital in Exhibit B showing the price of the properties at Rs. 3,300. In the opinion of the trial Court, the said sum exactly tallies with the price fixed by the plaintiff if the share of the defendant No. 4 be taken into consideration. In our opinion, this cannot be any circumstance indicating that the defendants Nos. 3 and 4 entered into a contract with the plaintiff. Similarly, the close relationship of the parties does not also prove the contract. The same can be said as regards the recitals in Exhibit 4 series, these letters were not written by the defendant No. 3 or defendant No. 4 but these were letters in between some defendants and other persons. So by no strength of imagination, the recitals in the said docu ments can be used against defendants Nos. 3 and 4 for any purpose. As regards the custody of the title deeds, it is in evidence that these documents were lying with the defendant No. 3 the mother of the other defendants who died during the pendency of the suit; and that she handed over these two documents to one Waliul Islam who has not been examined and from whom the said documents were taken by the defendant No. 2 who handed over to the plaintiff. It has not been stated by the plaintiff that the defendants Nos. 3 and 4 had anything to do in handing over these title deeds to the plaintiff. So, merely because the title deeds were handed over to the plaintiff by one of the defendants, it does not in any way prove that the defendants Nos. 3 and 4 entered into a contract with the plaintiff. It is an admitted fact that possession of the premises in question was given to the plaintiff. It is the case of the defendant No. 1, who has deposed as a defence witness, that possession of the disputed premises was given to the plaintiff by him in order to provide him with a temporary residence. There is no evidence on record to show that the defendants Nos. 3 and 4 had any concern in the matter of delivery of possession. So in our opinion the aforesaid circumstances do not prove that the defendants Nos. 3 and 4 entered into the alleged contract.
7. Mr. Abdulla did not press all the aforesaid points vehemently but his argument was directed against the rejection of the Power‑of‑Attorney by the lower Appellate Court. Now coming to the Power‑of‑Attorney it appears that the original was not produced before the Court but a book containing copies of the registered documents from the Registrar's Office was called for and was produced before the Court and was marked as Exhibit f ; and that after a certified copy of the Power‑of‑Attorney (Exhibit 1‑AA) was obtained, the said book was taken away by the registration authority. This document discloses some curious circumstances. The title head shows that the document was purported to have been executed by two persons, namely, defen dants Nos. 3 and 4; but it appears that the defendant No. 3 did not at all execute the said document. Another peculiar circums tance is that the document was not presented by the executant. There is no note by the Registrar while registering the document that the execution of the document was admitted by the executant but it was presented by some other person. We fail to understand how this document could have been registered in the absence of the admission of its execution by the executant. The lower Appellate Court has also held that there is nothing on record to show that the said document was executed by the defendant No. 4 that even assuming that this document was executed by defendant No. 4, in that case also it cannot be held that the same was the mental work of the executant nor is there any evidence to show that the document. was read over and explained to the executant. Rather the evidence, according to the finding of the learned District Judge, goes to show that the document in question was fraudulently obtained by one of the defendants from the executant, namely, defendant No. 4, if she at all be an executant. In the aforesaid circumstances, the lower Appellate Court has rightly rejected the contention of the plaintiff that the said docu ment does prove that defendants Nos. 3 and 4 entered into a contract with the plaintiff. For these reasons and the other reasons given by learned District Judge, we uphold the finding of the lower Appellate Court on this point and find that there is no substance in this contention.
8. The most important point that has been urged by the learned Advocate for the appellant is that, in view of the finding arrived at the lower Appellate Court that the defendants Nos. 1 and 2 entered into a contract with the plaintiff, the said Court should have decreed the suit at least to the extent of the share of defendants Nos. 1 and 2. In support of this contention, first branch of the argument is that section 22 of the Specific Relief Act is exhaustive and does not admit of any other circumstances for refusing or granting a relief. It is contended that specific performance of contract can be refused only when the circums tances under which the contract is made are such as to give the plaintiff an unfair advantage over the defendant, though there may be no fraud or misrepresentation on the part of the plaintiff and, further, where the performance of the contract would involve some hardship, on the defendant which he did not foresee, where as its non‑performance would involve no such hardship to the plaintiff. In support of contention, Mr. Abdullah has not been able to cite any authority before us. We find that section 22 of the Specific Relief Act provides
"The jurisdiction, to decree specific performance is dis cretionary, and the Court is not bound to grant such relief merely because it is lawful to do so ; but the discretion of the Court is not arbitrary but sound and reasonable, guided by judicial principles and capable of correction by a Court of appeal."
The above provision, in our opinion, does not show that it is exhaustive but the instances that have been given in subsections I and II of section 22 of the Act are nothing but illustrative. To grant specific performance of contract is absolutely within the discretion of the Court and no rigid rule can be laid down when and where this discretion can be exercised by the Court. The discretion that shall have to be exercised by the Court will depend on the circumstances of each case but that discretion must be a judicial one. Even if we accept that the illustrations given in subsections I and II of section 22 of the Specific Relief Act are not illustrative but exhaustive, in that case also the following illustration given in subsection III of the said section 22 is exhaustive :‑
"The following is a case in which the Court may properly exercise a discretion to decree specific performance:
Where the plaintiff has done substantial acts or suffered losses in consequence of a contract capable of specific perfor mance",
but to this, Mr. Abdulla does not agree. He contends that the case cited in the aforesaid subsection III is illustrative and not exhaustive inasmuch as before subsection 1 the sentence. "The following are cases . . . . ." occurs while before subsection III the sentence which occurs is "The following is a case . . . . . . . . ." Relying on the sentence "The following are cases . . . . . . . ." it is contended that this is exhaustive because, in his opinion, the said sentence means "The following are the cases." We cannot agree with this contention. The sentence before subsection (I) is not "The following are the cases" but the sentence is "The following are cases" which in our opinion, shows that it is illustrative as the cases have not been definitely mentioned. Hence we do not find any substance in this contention that the said cases to be the only cases where the Court is to exercise dis cretion not to pass a decree for specific performance. For this reference may be made to the case of Gaj Kumar Chand v. Lachman Ram and others (44 C L J 162=A I R 1926 Cal. 1236).
9. The second branch of the argument of Mr. Abdullah is that the lower Appellate Court has refrained from decreeing the suit on the wrong view that the defendant No. 4 was entitled to pre‑empt under the Mahomedan Law and on the ground of multiplicity of suits. In support of this contention it has been urged that the present suit is not the proper suit in which the question of the principle of pre‑emption under the Mahomedan Law can be agitated inasmuch as no case was made out by the defendants to that effect nor was any issue framed in the present suit; but no authority has been cited before us. The lower Appellate Court, it is seen in rejecting specific performance of contract relied on its view that as the defendant No. 4 is entitled under the Mahomedan Law to pre‑empt the suit for specific performance of contract should not be decreed against the defen dants Nos. 1 and 2; and for this reliance has been placed on the cases of Munshi Habibar Rahman v. Moulvi Ali Azhar and others (A I R 1930 All. 169), Saheb Dahal Singh v. Mahabir Singh and others (A I R 1924 Lah. 163), Genda Ram and another v. Ram Chand and another (A I R 1942 Pat. 366(sic.)) and Dulhin Rajkishore Kuer v. Muhammad Quaiyum and others (A I R 1942 Pat. 366 (sic.)).
10. In 44 C L J 162 Munshi Habibar Rahman v. Moulvi Azhar and another, defendant No. 1 entered into a contract with the plaintiff on the 17th of October, 1921. Defendant No. 2, a co- sharer of the defendant No. 1, purchased the latter's share in the property in suit by a kabala, dated the 26th day of October, 1921. The plaintiff instituted a suit against both the defendants for specific performance of contract. It was held in that case
"Defendant No. 2 has right of pre‑emption as against the plaintiff. Under such circumstances we do not think that it would at all be equitable to decree the specific performance as claimed by the plaintiff. The result of making an order in favour of the plaintiff would be to cause a multiplicity of suits. In fact the defendant No. 2 will have to bring a suit for pre‑emption as against the plaintiff on payment of the purchase money and then defendant No. 2 must bring a suit against defendant No. 1 for recovery of the purchase money paid to her. This certainly should be avoided by the Court in the exercise of the discretionary powers given under section 22 of the Specific Relief Act".
In Genda Ram and another v. Ram Chand and another, it was held in a suit for specific performance of contract
"It is not denied that the defendant vendees have now become the owners of the whole house of purchase. The portion B is situated between the two portions A and C with respect to which the plaintiff's suit for pre‑emption must be dismissed. If a decree is given in favour of the plaintiff in respect of the portion B, it would be a source of constant trouble and friction between the parties and would not result in any appreciable advantage to the plaintiff. Moreover it appears from the plan that this house and the houses A and C have a common entrance from the street which would give the defendant vendees a superior right of pre‑emption to claim this property under section 16 (fourthly) of the Punjab Pre‑emption Act. The decree for specific performance, therefore, even if allowed would become nugatory and would not avail the plaintiff in any way whatever. It is not denied that the Courts have an absolute discretion to decree specific performance or not, and I am clearly of opinion that this is not one of those cases in which the plaintiff should be held entitled to such a decree. I accordingly dismiss the suit for the specific perfor mance of the contract."
In Saheb Dayal Singh v. Mahabir Singh and another, a Division Bench of the Allahabad High Court, relying on A I R 1926 Cal. 1237, dismissed the suit for specific performance of contract holding
"The lower Appellate Court considered it probable that it might be proved in a pre‑emption suit that Mst. Phulraji was only a benamdar for her relative Saheb Dayal Singh and that Saheb Dayal Singh being a co‑sharer, it would be improper to give a final adjudication on the rights of parties. We must point out that Saheb Dayal Singh is not a co‑sharer in mahal Muhammad Taqi but in the other mahal, and accord ingly Mahabir Singh and Ram Dhari Singh, who are co‑sharers in mahal Mohammad Taqi, by virtue of the sale‑deed of 4th September, 1923, have a pre‑emptive right even though Saheb Dayal Singh were the actual vendee. As this was the only ground on which the lower Appellate Court considered that the pre‑emption suit might be resisted and that ground, in our opinion, is without any force, accordingly we consider that the pre‑emption suit must undoubtedly prevail if brought. We allow the appeal of Mahabir Singh and Ram Dhari Singh and reverse the decree of the lower Appellate Court, which granted a decree for specific performance to Mst. Phulraji. Under the circumstances of the case we dismiss her suit for specific performance, but because the contract to sell with Mst. Phulraji was undoubtedly prior to the sale in favour of the appellants, we consider that this is a case in which the parties should pay their own costs throughout."
In Dulhin Rajkishore Kuer v. Muhammad Quiyum and others, a Division Bench of the Patna High Court held:
"It has been held in several cases that where specific perfor mance is sought to be enforced against a subsequent purchaser who has got a right of pre‑emption, the Court should in the exercise of its discretion under section 22, Specific Relief Act, refuse to decree specific performance; see A I R 1926 Cal. 1237 A I R 1924 Lah. 1637 and A I R 1930 All. 166. In this case, the defendants second party have undoubtedly a right of pre emption and the plea of waiver raised by the plaintiff having failed, the Court will not be justified in decreeing specific performance. Section 22, Specific Relief Act, clearly provides that the right to decree specific performance is discretionary and the Court is not bound to decree specific performance merely because it is lawful to do so."
In our opinion, the illustrations given in section 22 of the Specific! Relief Act arc not exhaustive but illustrative and the said section clearly shows that the Court has its discretion to refuse specific performance even though it might be lawful.
10. Now coming to the question of balance of convenience, we find that it is on the side of the defendant No. 4. The premises in question, according to the finding of the lower Appellate Court a final Court of fact, is an ancestral homestead of the defendants and the plaintiff is a stranger purchaser. If partition be allowed, it may put the defendant No. 4 in inconvenience in different ways. Further, the plaintiff is a stranger whose presence and participation may not be desirable.
11. Here in this case the defendant No. 4, being a co‑sharer of the ancestral homestead, as has been found by the lower Appellate Court, is entitled to pre‑empt under the Mahomedan Law. This being the case, the plaintiff's suit for specific performance of contract cannot be decreed. In Exhibit 1‑A it has been stated that the premises described in the plaint is a pacca premises; and in Exhibit B‑1, the kabala executed by the defendants Nos. 1‑3 in favour of the defendant No. 4, it has been categorically stated that the said premises is the ancestral homestead of the defendants.
12. The third branch of the argument of Mr. Abdullah is shat, in the circumstances of the present case, the right to pre- empt does not subsist. In support of this contention, it has been argued that there are some formalities to be performed in order to exercise the right of pre‑emption under the Mahomedan Law, the first formality is that the moment a co‑sharer hears of a sale ; he must jump up and express his willingness that he is going to pre‑empt and after that he is also to follow other formalities. Further, it has been contended that in the present case the sale was complete the moment the contract was entered into between the plaintiff and the defendants Nos. I and 2, and, as such, the right to pre‑empt did arise on the date of the contract, namely, on the 6th of March, 1948, or utmost on the 18th of May, 1948 when Exhibit 1‑A was executed by the defendant No. 1. It has been further contended that it is the finding of the lower Appellate Court that the defendant No. 4 was aware of the contract, which necessarily means that she was aware of the contract between the plaintiff and the defendants Nos. 1 and 2 at least from the date of the execution of Exhibit 1‑A, namely, the 18th of May, 1948. In support of the contention that sale takes place under the Mahomedan Law the moment the contract for sale is complete, reliance has been placed on the case of Zamini Begum v. Khan Muhammad Khan and another (I L R 46 All. 142). It appears that in deciding the aforesaid principle of law, reference was made to a decision of a Full Bench of the Allahabad High Court but we find that subsequently such a case went to the Privy Council. That case is of Sitaram Bhaurao Deshniukh and others v. Jiaul Hasan Sirajul Khan, (48 I A 475) wherein their Lordships of the Privy Council held that for the purpose of determining the application of the Mahomedan principle of pre‑emption one is "to look at the intention of the parties in determining what system of law was to be taken as applying and what was to be taken to be the date of the sale with reference to which the ceremonies were performed". According to the aforesaid decision of the Judicial Committee of the Privy Council, the guiding principle in determining the date of sale is the intention of the parties as regards the sale and also the provision of law under which the sale should be completed. In the present case, it is contended by Mr. Abdullah that so far as the defendant Nos. 1 and 2 are concerned, the sale was completed on the date of the contract, that is, on the 6th of March, 1948, if not on the 18th of May, 1948, as some consideration was paid by the plaintiff to defendants Nos. 1 and 2 and defendant No. 1 put the plaintiff in possession of the premises in question. In order to deter mine the intention of the parties, we are not to look to a certain circumstance but to the whole case as made out by the plaintiff. In paragraph 2 of the plaint it has been stated that, after determin ing to sell the property described in the plaint to the plaintiff for a sum of Rs. 4,000, on the 6th of March 1948 the defendant No. 1 took Rs. 200 from the plaintiff as advance money on granting a receipt and by handing over the title deeds to him; and that the defendant No. 1 also agreed to bring the other defendants within a short time in order to execute a kabala by them in favour of the plaintiff. This statement in paragraph 1 of the plaint conclusively goes to show that there was no completed contract in between the defendant No. I and defendant No. 2 ; but it indicates that the contract was to be by the defendants Nos. 1‑4 and a document was to be executed by defendants Nos. 1‑4. It is further seen from the plaint that, as pre‑arranged, all the defendants gathered in the house of the defence witness No. 4 in order to execute a document but the document could not be executed as the plaintiff could not purchase the necessary stamp paper; that the defen dants Nos. 3 and 4 left Chittagong ; and that the defendant No. 2 agreed to obtain a power‑of‑attorney from defendants Nos. 3 and 4 later on whereupon a kabala would be executed in favour of the plaintiff. The said statements in the plaint go to show that there was no completed contract between defendant No. 1 and defendant…
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