ivil Appeal No 101 of 1950
Appeal by special leave from the Judgment and Decree dated the 20th September 1949 of the High Court of Judica ture at Calcutta Hurries CJand Chatterice J in Appeal No 46 of 1949 arising out of Decree dated the 31st August 1948 of the Hon ble SB Sinha J of the Calcutta High Court in Suit No 343 of 1943 instituted under the Original Jurisdiction of the High Court
MC Setalvad Attorney General for India B Senwith him for the appellant
SC Isaac B Barterice with him for the respond ent 1951
December 18
The leading judgment was delivered by Bose J Fazl Ali J agreed 180 Bose J
This is a defendant s appeal in a suit for contribution brought by the son of a mortgagor against the co mortgagors
The parties are related as below  Balai Lall Seal died1917 I Megharnala Dassi died 1945 I I I I I Bejoy Lall Biswa Lall Tarak Lall Kedar Lall NakuLall D 23 5 33 D Nov 1936 Deft 1 Deft 2 Born Born I I Jugal Lall Hari Lall 22 11 1907 7 2 1910 Plff The mortgagors were the plaintiff s father Tarak Lall and Tarak s two brothers Kedar and Naku
The mortgage was exe cuted on the 12th June 1936 in favour of one Mst
Gyarsi for a consideration of Rs 80000
For convenience I will call this the suit mortgage though this is not a suit on the mortgage
The mortgagee sued in the year 1938 and obtained a preliminary decree for sale on the 17th of February 1939 for a sum of Rs 89485 12 9 plus costs
The decree was made final on the 22nd of December 1989
In execution the mortgagee proceeded against the proper ty of the plaintiff alone as Tarak s son and during the pendency of the execution assigned her rights in the decree to the Hooghly Flour Mills
The Mills continued the execu tion and on the 11th of March 1943 the claim was satisfied in this way
An order of the Court was obtained sanctioning sale of a part of the mortgaged property 20 Round Tank Lane which belonged exclusively to the plaintiff to the decree holder for a sum of Rs 150000
It was directed that the consid eration should first be applied in payment of the claim and costs and that the decreeholder should execute a reconvey ance of the rest of the mortgaged properties in favour of the mortgagors
The sanction of the Court was necessary because the judgment debtor Hari Lall present plaintiff was a minor
181 This was done and 20 Round Tank Lane was conveyed by the present plaintiff to the Hooghly Flour Mills on the 18th of March 1943
Out of the consideration a sum of Rs 97116 11 0 was paid to the Mills in lull satisfaction of the claim and costs then outstanding
The Mills executed a reconveyance of the rest of the properties to the mortgagors in release of the mortgage on the same day
In addition to this Rs 97 116 11 0 further sums of Rs 14400 and Rs 8100 had also been paid before the dates of these transactions
These sums were paid by a Receiver who had been appointed by the Court pendente lite
These sums came out of the rents which the Receiver obtained from the plaintiff s property 20 Round Tank Lane
The plaintiff says that in this way he paid a total of Rs 119116 11 0 in satisfaction of the mortgage
His one third share in this comes to Rs 39872 3 8
He claims that he is entitled to receive the balance of Rs 79744 7 4 from the two defendants and that each of them is liable for a half of that sum namely Rs 39872 3 8
In addition to this the plaintiff had incurred costs amounting to Rs 1144 8 6 in resisting Mst
Gyarsi s claim and in connection with the reconveyance
He also claims one third of this sum namely Rs 381 8 2 from each of the defendants
The total claim against each defendant accord ingly comes to Rs 40253 11 10
In addition to this the plaintiff asked for 1 a declaration that the properties mentioned in Schedule A  belonging to the defendants stand charged with the repayment of the sum of Rs 80507 7 8 being the aggregate amount due and payable by the two defendants and 2 Decree under Order XXXIV of the Civil Procedure Code in proper form Schedule A contains a list of the rest of the mortgaged properties which belong exclusively to the defendants 24 182 It will be seen that the plaintiff claims on the basis that each of the three mortgagors is liable to contribute in equal shares towards payment of the mortgage debt
The defendants did not deny their liability to contribute
They only challenged the basis on which it was to be comput ed
They pleaded a special agreement between Tarak Lal and themselves under which their liabilities were to be calcu lated in the following way
According to them the bulk of the Rs 80000 was borrowed on what I have called the suit mortgage to pay off previous debts which had been incurred by the parties on earlier mortgages
The amount which went towards satisfaction of the defendant s portion of these earlier liabilities was only Rs 13259 2 4
Therefore the only benefit they got out of this Rs 80000 was to that extent
The plaintiff s father Tarak on the other hand benefitted to the extent of Rs 53481 11 4
They therefore agreed at the date of the suit mortgage that their respec tive liabilities as between themselves should be proportion ate to the benefit derived by each as above
Sinha J who tried the suit on the Original Side of the Calcutta High Court held that the agreement was proved
On appeal the learned Chief Justice of the High Court and Chatterjee J disagreed and held that it was not
As I agree with the learned appellate Judges for reasons which I shall give hereafter it will be necessary to set out the further facts
But I need not do so in any detail as they are given in full in the two judgments of the High Court
We are only concerned here with the question of principle so it will be more convenient to reduce the problem to its simplest terms
We are concerned here with four items of property which I shall term Chittaranjan Avenue Strand Road No 16 Round Tank Lane and 20 Round Tank Lane
These properties were originally joint family properties but in the year 1932 there was a partition which was compelled by reason of a suit filed by Tarak 183 against his brothers and mother
The upshot was that the properties were divided as follows 1 Bejoy Kedar Naku and the mother Meghamala obtained Chittaranj an Avenue
2 Tarak plaintiff s father obtained 16 Round Tank Lane and 20 Round Tank Lane
3 Kedar Naku and Biswa Lall obtained Strand Road
Before this partition there were three mortgages The first of these was executed on the 16th of June 1925
All five brothers joined in it and they mortgaged the Strand Road property for Rs 10000
This was in favour of Bhuvan Chandra Bhur
The second was on the 11th of October 1926
In this Bejoy and Tarak mortgaged their 25 share in Chittaranjan Strand Dum Dum and 20 Round Tank Lane for Rs 5000
The mortgagee was Binode Behari Sen
The third was on the 28th January 1927
In this Bejoy and Tarak again mortgaged their 25 share in the same items of property for Rs 7000 to Binode Behari Sen and Kunja Behari Sen
All three sets of mortgagees or their representatives instituted suits on their respective mortgages and obtained final decrees Bejoy died on the 23rd of May 1933 leaving a son Jugal
On the 12th of June 1936 came what I have called the suit mortgage executed by the three brothersTarak Kedar and Naku for Rs 80000
The properties mortgaged were 1 the shares of Kedar and Naku in Chittaranjan Avenue and 16 Round Tank Lane 2 20 Round Tank Lane which had been allotted to Tarak 3 the reversionary interest of all three in the share allotted to the mother
The consideration of Rs 80000 was expended as followsRs
29667 10 0 was paid by Tarak Kedar and Naku in satisfaction of the first mortgage and the 184 later decretal charge Rs 11519 11 0 in satisfaction of the second and Rs 13502 14 0 in satisfaction of the third
The balance of Rs 25310 is alleged by the appellants to have been retained by Tarak
I have taken these figures from the judgments of the High Court
I understand some of the details are disputed so I make it clear that I am not setting out the decision of this Court regarding the de tails but only giving an overall picture
Shorn of overburdening detail the problem reduced to its simplest terms comes to this
Three persons A B and C separately own properties of unequal value Blackman Whiteacre and Greenacre
Let us assume that their values at the material date are Rs 30000 Rs 20000 and Rs 10000 respectively
A B and C acting in various combinations from time to time incur debts
It matters not for present purposes whether those debts are secured on these properties or not because a time must come when their separate liabilities as amongst themselves have to be ascertained and apportioned
Let us assume that when that is done A s responsibility extends to Rs 2000 B s to Rs 3000 and C s to Rs 5000
In order to clear off these debts A B and C jointly mortgage their three estates for Rs 10000 the total aggregate sum due at the date of the mortgage from the three of them
There is no contract between them either in the mortgage deed or otherwise regarding their respective shares of responsibility in the Rs 10000
At the date of redemption the mortgage debt has swollen to Rs 15000
A alone redeems by selling Blackacre which is his separate estate to the mortgagee for Rs 35000 that being the value of Blackacre at the date of redemption
Rs 15000 of this is applied in satisfaction of the mortgage debt and the balance of Rs 20000 is retained by A
What are A s rights as against B and C  Three solutions readily suggest themselves
One is that the three contribute equally
In that event B would pay A Rs 5000 and C would pay Rs 5000
185 A second solution is that they pay in proportion to the extent of the benefits derived
In that event B s share would be 310 of Rs 15000 that is to say Rs 4500
and C s would be 510 of Rs 15000 that is Rs 7500
A third solution is that they pay proportionately to the values of the properties mortgaged
In that event B would have to pay 26 of Rs 15000 that is Rs 5000 and C 16 of Rs 15000  which come to Rs 2500
The problem is to know which of these three solutions to apply
In the absence of other considerations the most equitable solution is obviously the second
But the matter is not as simple as that
There are certain statutory provi sions which must first be examined
The learned counsel for the plaintiff respondent con tended that section 43 of the Contract Act applied
He relied on the following provision  Each of two or more joint promisors may compel every other joint promisor to contribute equally with himself to the performance of the promise unless a contrary intention appears from the contract
If any one of two or more joint promisors makes default in such contribution the remaining joint promisors must bear the loss arising from such default in equal shares
 The argument is that unless a contrary intention appears from the contract the
loss must be borne equally
It was contended and with that I agree that the words the con tract can only refer to the main contract between the promisors on the one side and the promisee on the other
That contract in this case is the suit mortgage
There is no contract to the contrary in the document therefore it was contended the section must apply
That of course would be the clear logical and simple conclusion ii there were no other provision of law to consider
But we are dealing here with a mortgage and so we have also to look to the provisions of the Transfer of Property Act
186 Incidentally if this argument is pushed to its logical conclusion it would exclude any collateral or subsequent agreement between the promisors inter se which does not appear in the main contract
But we need not enter into that here
The sections of the Transfer of Property Act which concern us are 82 and 92
The first confers a right of contribution
The second a right of subrogation
I will consider section 82 first
It runs  Where property subject to a mortgage belongs to two or more persons having distinct and separate rights of owner ship therein the different shares in or parts of such property owned by such persons are in the absence of a contract to the contrary liable to contribute rateably to the debt secured by the mortgage    That is the position here
Next I turn to section 92
That runs   any co mortgagor shall on redeeming property subject to the mortgage have so far as regards redemption foreclosure or sale of such property the same rights as the mortgagee whose mortgage he redeems may have against the mortgagor   That also applies
Now these provisions at once raise a competition between sections 82 and 92 of the Transfer of Property Act section 43 of the Contract Act and what I might term the principle of beneficial as opposed to proportionate or equal distri bution of liability
I am of opinion that the second solution adumbrated earlier in this judgment based on equities must be ruled out at once
These matters have been dealt with by statute and we are now only concerned with statutory rights and cannot in the face of the statutory provisions have recourse to equitable principles however fair they may appear to be at first sight
The Privy Council pointed out in Rani Chhatra Kumari vs Mohan Bikram 1 that the doctrine of the 1 Pat 851 at 869
187 equitable estate has no application in India
So also refer ring to the right of redemption their Lordships held in Mohammad Sher Khan vs Seth Swami Dayal1 that the right is now governed by statute namely section 60 Transfer of Property Act
Sulaiman c
J later a Judge of the Federal Court ruled Court equitable considerations in the Allahabad High Court in matters of subrogation under sections 91 92 101 and 105 Transfer of Property Act in Hira Singh vs Jai Singh2 and so did Stone CJ and I in the Nagpur High Court in Taibai vs Wasudeorao 3
In the ease of section 82 the Privy Council held in Ganesh Lal vs Charan Singh4 that that section prescribes the conditions in which contribution is payable and that it is not proper to introduce into the matter any extrinsic principle to modify the statutory provisions
So both on authority and principle the deci sion must rest solely on whatever section is held to apply
So far as section 43 is concerned I am not prepared to apply it unless sections 82 and 92 can be excluded
Both sections 43 and 82 deal with the question of contribution
Section 43 is a provision of the Contract Act dealing with contracts generally
Section 82 applies to mortgages
As the right to contribution here arises out of a mortgage I am clear that section 82 must exclude section 43 because when there is a general law and a special law dealing with a particular matter the special excludes the general
In my opinion the whole law of mortgage in India including the law of contribution arising out of a transaction of mort gage is now statutory and is embodied in the Transfer of Property Act read with the Civil Procedure Code
I am clear we cannot travel beyond these statutory provisions
Now when parties enter into a mortgage they know or must be taken to know that the law of mortgage provides for this very question of contribution
It confers rights on the mortgagor who redeems and directs that in the absence of a contract to the contrary he 1 1922 49 IA 60 at Nag 206 at 216
2 AIR 1937 All
588 at 594
4 1930 57 IA 189
188 shall be reimbursed in a particular way out of particular properties
The parties are at liberty to vary these rights and liabilities by special contract to the contrary but if they do not do so I can see no reason why these provisions should be abrogated in favour of a section in the Contract Act which does not deal with mortgages
Slightly to vary the language of the Judicial Committee it is the terms and nature of the transaction viewed in the light of the law of mortgage in India which exclude the personal liability and therefore section 43 except where there is a contract to the contrary
It was suggested that the rule is inequitable and will operate harshly in cases like the present
But the remedy lies in the parties  own hands
It is open to them to make a contract to the contrary
If they do not then the law steps in and makes statutory rules to which effect must be given
It is not for judges to consider whether that is the best possible solution but the rule at any rate obviates the necessity of roving enquiries into the objects of a borrow ing and the application of the funds
On an overall basis it is perhaps as good as any other
But that hardly matters
The rule is there and full effect must be given to it
The learned counsel for the plaintiff respondent urged that the defendants are shut out from relying on section 82 because that was not their case and the question was never raised by them in the High Court
Such reference as there is to the section was with reference to an argument urged on behalf of the plaintiff
I am not impressed with this objection
 On the facts set out by the plaintiff it is evident that he is entitled to contribution
The method of computation is a matter of law and it is for the judges to apply the law to the facts stated and give the plaintiff such relief as is appropriate to the case
I turn now to the question of fact the special agree ment pleaded by the defendants
The only evidence in sup port of it is that of the first defendant Kedar
According to him the agreement was an oral one 189 though the parties contemplated writing and registration
His explanation for lack of any writing is this
He was asked whether anything was put down in writing and he re plied  No nothing was done then but there was an understand ing that it would be done but Tarak went away to Darjeeling and when he came back he died soon after he came back and nothing could be done in writing
 Later he was asked Therefore you contemplated that there would be a document which would have to be registered in connection with the adjustment  and he replied  Yes
He also tells us that the parties regarded the matter as confidential and so only three per sons were present Tarak Naku and himself
It is to be observed that Naku who is the second defendant has not entered the box
Stopping there it is evident that we have to rely on the memory of a very interested person speaking nearly thirteen years after the event about a transaction affecting some Rs 80000
Nor is it the memory of some simple event which might well have fixed itself in his mind
The question whether and at what stage parties reach finality when writ ing is in contemplation is a difficult and complex one involving delicate considerations of much nicety even when the preliminaries are all in writing
The turn of a phrase here the use of a word there may make a world of differ ence
The law regarding this was examined by me at some length in the Nagpur High Court in Shamjibhai vs Jagoo Hernchand Shah 1
How much greater are the difficulties when we do not know the exact words the parties used and have to delve into the mind of a dead man Tarak through the impressions of an interested witness given some thirteen years after the event
I find it difficult to accept this version and consider it would be dangerous to do so particularly when the 1 ILR at 586 588 and 598 25 190 witness is a hesitant and reluctant one as his examination discloses and even evasive on some points also when the defendants have deliberately withheld from the Court assist ance which it was in their power to render I refer to the absence of Naku the only other person present from the box
I am unable to accept this testimony
Nor is this the only point
Despite the insistence of the witness that the parties were on good terms and trusted each other the fact remains that Tarak found it necessary to institute a suit for partition against his brothers and fight it to a finish
They were not able to arrange matters amicably
it was suggested in argument that was probably because of creditors who could not be persuaded to agree and it was pointed out that creditors were joined in the suit but that is not wholly convincing particularly when it is admitted that Tarak was insisting on writing and regis tration
It is evident that he at any rate was not prepared to leave matters as they were and trust to the good faith of his brothers
Now we know that Tarak was in Calcutta about three months after the date of the alleged agreement
We also know that Kedar was most anxious to have such an agreement for he tells us so
He tells us further that there was before them a rough draft of the terms
That document was produced in Court
But the draft was neither signed nor initialled
The only inference I can draw from these facts is that Tarak either refused to agree or had not made up his mind
The figures put forward by the defendants were contested on behalf of the plaintiff and we were given an alternative set of figures which in turn were contested by the other side but they were enough to show that the matter is not as straightforward or as simple as the defendants would have us believe
Therefore Tarak s inaction during the three months and the omission of either side to initial the draft point clearly at the lowest to hesitancy on Tarak s part
It may be he wanted his lawyers to examine his position or it may be he refused to have anything to do with it
191 It is just possible that there were negotiations but on those broad facts I am not prepared to believe the witness when he tells us or rather suggests that the parties reached finality
It would in any event be dangerous to believe a witness in circumstances like this
But when the defendants deliberately withheld from the Court that assist ance which is its due I can only conclude that their case was too shaky to stand further proving
On these broad grounds alone I would hold that the agreement is not proved
Much was made in argument about the rule regarding the weight to be given to the estimate of the judge who saw and heard a witness
I do not doubt the soundness of the rule but it can be pushed too far as their Lordships of the Judicial Committee pointed out in Virappa vs Periakaruppan1
In the present case the learned Judge who tried the case believed Kedar not because of his demea nour but because the learned Judge considered that his story was inherently probable
That however is a matter which the learned appellate Judges were in as good a position to appreciate as the learned trial Judge
If probability is to be the test then the conduct of Tarak suggests that it is very improbable that he could have agreed
That leaves at large the nature of the relief to which the plaintiff is entitled
In the view I take there being no contract to the contrary the plaintiff s only remedy is under section 92 of the Transfer of Property Act read with section 82
The question is has his suit been so framed  The plaintiff has claimed separate personal reliefs against the defendants
As there is no personal covenant as between the mortgagors or any contract to the contrary that relief  cannot be granted
The plaintiff has also asked for a declaration of charge and for a decree under Order XXXIV Civil Procedure Code
The declaration of charge standing by itself is superfluous although Order XXXIV rule 2 1 does require that the decree in a mortgage suit shall 1 AIR 1945 PC 35 at 37
192 declare the amount so due at the date of the decree
But reading the two reliefs together I am of opinion that though the claim is inartistically worded the plaintiff has in substance asked for a mortgage decree up to a limit of Rs 40253 11 10 with interest against each defendant
No other kind of decree could be given under Order XXXIV
Therefore though he has not used the word subrogation he has asked in substance for the relief to which a subrogee would be entitled under the Transfer of Property Act
I would be slow to throw out a claim on a mere techni cality of pleading when the substance of the thing is there and no prejudice is caused to the other side however clum sily or inartistically the plaint may be worded
In any event it is always open to a court to give a plaintiff such general or other relief as it deems just to the same extent as if it had been asked for provided that occasions no prejudice to the other side beyond what can be compensated for in costs
In the circumstances in the absence of agreement be tween the parties as to the figures I would remand this case to the High Court for 1 an enquiry regarding the sum paid by the plaintiff s father for satisfaction of the mortgage dated the 12th June 1936 2 for the interest due on that sum at the contract rate in the mortgage from the date of payment to the date of decree a lot the values of the various properties mortgaged at the date of the mort gage
When the figures are ascertained I would direct that the liability of each defendant be ascertained separately in the manner prescribed by section 82 Transfer of Property Act
the event of this liability exceeding Rs 40253 11 10 with interest against either defendant I would direct that his liability be reduced to Rs 40253 11 10 plus interest
When these figures are ascertained I would direct that a mortgage decree for sale be drawn up in the usual way affording either defendant the right to redeem the whole of the balance of the property 193 excluding the plaintiff s for the aggregate sum due as above and in default of payment limiting the liabilities of each item of property to the sum rateably due on it under section 82
On the question of costs
The plaintiff repudiated section 82 in the course of the arguments before us and rested his case on section 43 of the Contract Act nor did he clearly and unmistakably plead a case of subrogation in his plaint even in the alternative
The defendants on the other hand set up a case which has failed on the facts
I would therefore direct each side to bear its own costs in this appeal
As regards the costs incurred in the Courts below and any costs which may be necessitated by a further enquiry they will be determined according to the final result of the litigation and with due regard to all matters bearing on the question of costs
FAZL ALI J
I agree
Case remanded


Summary:
The appellants plaintiffs are  four brothers
They filed a suit against defendant No 1 Smt
Mahboobunnisa
Begum Since deceased and represented by legal heirs for specific performance of oral contract of sale of a building in Hyd erabad The property was later sold by defendant No1 to defendants Nos 3 and 4
The plaintiffs  case was that plaintiffs Nos 1 and 2 on behalf of themselves and their younger brothers plain tiffs Nos 3 and 4 had preliminary negotiations for the purchase of the suit property through Shri Arif Ali advo cate that eventually on 3rd May 1979 they met Arif Ali and offered to pay Rs 1000000 which was the price demanded by the owner that Arif Ali after getting the confirmation of the said offer from the first defendant on phone said that the plaintiffs should meet the first defendant on 6th May 1979 and that she would in the meanwhile purchase the stamp papers for making the formal agreement of sale incor porating the oral agreement arrived at on 3rd May 1979 that on 6th May 1979 the plaintiffs met the first defendant in the presence of Arif Ali and other wherein the amount of earnest money to be paid time for registration of the sale deed etc
were decided that at that meeting Shri Arif Ali prepared first and the final drafts of the receipt in his own handwriting and handed over these drafts to the first plaintiff to get the final draft typed and duly stamped that Arif Ali also delivered the stamp papers to the first plaintiff for typing the formal agreement of sale that at the meeting held on 6th May 1979 the plaintiffs Nos 1 and 2 were also permitted to proceed with the publication of the notices in the newspapers that after the public notice was published the first defendant got a reply notice published and got 414 issued a legal notice dated 8579 through her advocate alleging that there was no agreement for sale that thereaf ter the first and second plaintiffs made sincere and re peated attempts to convince the first defendant that there was in existence a concluded contract for sale of the suit property and that the execution of the agreement of sale was a mere formality
On these allegations the plaintiffs sought the relief of specific performance of the agreement
The first defendant in her written statement stated that certain negotiations had taken place between her and plain tiffs Nos 1 and 2 but the negotiations had failed
It was further stated that there was no concluded or enforceable contract between the parties that no price was settled or agreed upon and even the condition for advance payment and other terms and conditions were not agreed upon that no final receipt or document had been prepared and that the first defendant never asked for the purchase of stamp pa pers
The Trial Court found that on the facts and circum stances of the case it was established that the plaintiffs had entered into an oral contract of sale with the first defendant on 3579
The Trial Court accordingly decreed the plaintiffs  suit for specific performance
Two separate appeals were filed in the High Court
A Division Bench of the High Court allowed the appeals and set aside the decree passed by the trial court
The High Court held that in order to determine the binding nature of a contract between the parties the mere acceptance of sale price was not sufficient
The High Court further observed that in the absence of evidence that the other terms also were discussed over the phone and settled on 3579 it could cot be said that there was a concluded contract on 3rd May 1979 and that it was obviously for that reason that a further meeting was fixed at the house of the 1st defendant on 6th May 1979The High Court did not agree with the contention of the plaintiffs that all the terms of contract including the stipulation with regard to the payment of advance amount and the vendor s responsibility to obtain the permission from the Urban Land Ceiling Authority had been settled by 3579 and what was left to be done on 651979 was merely to incorporate the terms already arrived at into a formal document on stamp paper
Before this Court lit was contended on behalf of the appellants that an agreement for sale of immovable property could be made orally that in the facts and circumstances of the case all the fundamental and vital terms of the contract were settled and concluded on 351979 itself and 415 even if the other details like mode of payment of considera tion obtaining of no objection certificate from Land Ceil ing Authorities etc
remained unsealed the same could be settled subsequently or determined in accordance with sec
55 of the Transfer of Property Act that the only vital terms for a valid agreement of sale of an immovable property were the identity of the property and the price that both these vital terms were settled and concluded on 3579 and that the act of purchasing stamps on 3579 by defendant No 1 and the draft receipts prepared by Shri Arif Ali clearly lent support to the case of the plaintiffs
Kollipara Sriramulu vs T Aswathanarayana  Ors  and Nathulal vs Phoolchand 1970 2 SCR 854 relied upon
On the other hand it was contended on behalf of the respondents that no vital or fundamental terms of the con tract were discussed agreed or settled on 3579 that neither any earnestadvance money to be paid was settled nor any time for the payment of such money or time for execution of agreement of sale or final sale deed and its registration was settled that even if time may not be an essence of a term of contract for sale of immovable proper ty it was a vital term without which no concluded contract could be arrived at that any agreement in the third week of April 1979 to the effect that defendant No 1 would bring the no objection certificate from the Urban Land Ceiling Authorities was found not proved by the High Court and as such there was no question of applying the principles con tained in section 55 of the Transfer of Property Act that a no objection certificate was necessary to be obtained from Urban Land Ceiling Authorities and the defendant No 1 and her husband being old persons had clearly taken the stand that they would not bring such certificate and that there fore no final and concluded contract took place on any date
Dismissing the appeals this Court HELD 1 There is no requirement of law that an agree ment or contract of sale of immovable property should only be in writing
However in a case where the plaintiffs come forward to seek a decree for specific performance of con tract of sale of immovable property on the basis of an oral agreement along heavy burden lies on the plaintiffs to prove that there was consensus ad idem between the parties for a concluded oral agreement for sale of immovable proper ty
Whether there was such a concluded oral contract or not would be a question of fact to be determined in the facts and circumstances of each individual case
It 416 has to be established by the plaintiffs that vital and fundamental terms for sale of immovable property were con cluded between the parties orally and a written agreement if any to be executed subsequently would only be a formal agreement incorporating such terms which had already been settled and concluded in the oral agreement
429B D 2From a perusal of the evidence it would be abun dantly clear that nothing was settled on 3579 except the fact that the plaintiffs had conveyed their offer to pur chase the suit property for Rs 1000000 and Shri Arif Ali after speaking to defendant No 1 on phone conveyed that she was willing to sell the property for Rs 1000000
431B 3 No averment was made in the plaint that defendant No 1 had agreed to obtain the permission from the Urban Land Ceiling Authority in the meeting held in the third week of April 1979
The High Court was right in concluding that it was unbelievable that in the third week of April 1979 when still there was a wide gap of Rs200000 in the price payable for the suit building the parties would have stipu lated about the condition as to who should obtain the per mission under the Urban Land Ceiling Act
431C F 4 The High Court rightly believed the contention of defendant No 1 that the agreement fell through because the plaintiffs insisted that defendant No 1 should obtain the permission from the Urban Land Ceiling Authority while defendant No 1 did not agree for the same
432C 5 The general principles contained in section 55 of the Transfer of Property Act regarding rights and liabili ties of buyer and seller can only apply in the absence of a contract to the contrary and not in a case where the parties consciously negotiated but failed in respect of any term or condition as a result of which the agreement itself could not be settled or concluded
432E 6 Once it is heldestablished in the present case that no agreement was finally concluded or settled on 6579 and negotiations failed as before this date it was never set tled that defendant No 1 would bring the no objection certificate from Urban Land Ceiling Authority there was no question of applying general principles contained in section 55 of the Transfer of Property Act
432F Kollipara Sriramulu vs T Aswathanarayana  Ors
   distinguished