First Appeal No.158 OF 1983 Against the Judgment and decree dated 18.10.1982 Passed by Shri Nand Kishore Narain Sinha, VIth Additional Sub-Judge, Muzaffarpur in T.S. No.19 of 1977 / 13 of 1982. 1. RABI KUMAR SAHI 2. SUNIL KUMAR SAHI 3. SUSHIL KUMAR SAHI -------------Appellants. Versus 1. SMT.KIRAN SINHA 2. SMT.SUSHILA DEVI --------------Respondents. For the appellants: Mr. Shrinandan Prasad Singh, Advocate. For the respondents: Mr.Sunil Kumar Verma, Advocate. P R E S E N T THE HON'BLE MR. JUSTICE PRAKASH CHANDRA VERMA JUDGMENT P. C. Verna,J. This appeal has been filed against the Judgment and decree passed by the trial court in Title Suit no.19 of 1977 / 13 of 1982 which was filed for specific performance of contract based on agreement to sell dated 23rd of August, 1974 (Ext.1). 2. The fact of the case is that the lands detailed in Schedule-1 of the plaint are owned by the defendant 1st party and the same has been in possession of the defendants 2nd party as mortgages under three Bharna –bonds executed by the defendant no.1 in favour of the defendants 2nd party for an aggregate loan of Rs.71,000/-. It is stated that the defendant no.1being in need of money to repay the mortgagees and other petty creditors as also to purchase some other property, negotiated for sale of the aforesaid 2 land with different persons including the plaintiffs through their father and the same was finalized on 20.8.1974 at a consideration of Rs.28,000/- in which the terms were entered to the effect that the defendant no.1 would receive in cash a sum of Rs.10,000/- on the date of the execution of Mahada and a sum of Rs.71,00/- would be paid by the plaintiffs to the defendants 2nd party and the balance sum of Rs.10,900/- would be paid to defendant no.1 at the time of execution of the sale deed, the sale deed would be executed by the defendant no.1 by 10.4.1975. In the event of failure of defendant no.1 to execute the sale deed in accordance with the agreement, the plaintiffs would have a right to sue for specific performance of contract and shall be entitled to deduct the expenses of the suit from the aforesaid balance amount of consideration and shall also be entitled to take possession of Schedule 1 lands on depositing the remaining amount in the bank to the credit of the defendant no.1 and in the event of the plaintiffs’ default, the earnest money would stand forfeited. It was also included in the terms of agreement that defendant no.1 would purchase the stamp for Mahadanama and would get the same registered. It is further case of the plaintiffs that defendant no.1 purchased the stamp and she got the same scribed and having executed the same, she presented it before the Sub-Registrar at Muzaffarpur for registration on 23.8.1974.The plaintiffs through their father paid a sum of Rs.88,00/- to the defendant no.1 before the Sub-Registrar again a sum of Rs.1200/- for which defendant no.1 granted a receipt and also made over the registration ticket of 3 mahadanama to the plaintiffs after having received the full amount of Rs.10,000/- as earnest money. Thereafter the defendant no.1 took permission to sell from the Consolidation Officer on 3.4.1975. on 4.4.1975 the defendant no.1 got sent a registered notices through her lawyer to the plaintiffs intimating them not to pay the sum of Rs.7100/- to the defendants 2nd party inasmuch as their bharna bonds stood redeemed under the provisions of Bihar Money Lenders Act and required the plaintiffs to pay her Rs.18,000/- and get the same deed executed. The plaintiffs sent their reply on 9.4.1975 through their advocate in which they informed the defendant no.1 that the lands in question being in possession of Bharnadar, the defendants ought to have detained khas possession thereof before demanding payment of full amount. The plaintiffs offered to withhold payment of Rs.7100/- of the mortgagee for the time being and to pay the same to defendant no.1 after she detains direct possession over the land in question. Even after receipt of the aforesaid notice by the advocate of defendant no.1 no response to the same was made by her or on her behalf. It is also stated that the plaintiffs thereafter sent a notice dated 6.6.1975 through their advocate to the defendant no.1 expressing their readiness and willingness to perform their part of the contract. The plaintiffs in that notice complained of the defendant no.1 in action in obtaining possession from the defendants 2nd party and intimated her that in the event of her not detaining possession, the plaintiffs would pay Rs.7100/- to the defendants 2nd party, so as to free the lands from their possession. 4 Then the plaintiffs also informed the defendant no.1 that the aforesaid money had been kept in deposit in postal Savings Bank. The defendant no.1 sent reply notice dated 16.6.1975 through her advocate in which she intimated the plaintiffs that the Mahadanama was not inforceable at law and that there was no agreement to put the plaintiffs in possession over the land in question. She further informed through that letter that she had taken steps for obtaining possession over the aforesaid land from the defendant 2nd party. Thereafter the defendant no.1 verbally told the father of the plaintiffs that she has filed two cases under Section 12 of the Bihar Money Lenders Act before the Anchal Adhikari which had been allowed and she would be soon obtaining khas possession thereof and shall thereafter executed the sale deed. Later on it came to the knowledge of the plaintiffs that the aforesaid orders of the Anchal Adhikari were set aside on appeal preferred by the defendants 2nd party and the cases have been remanded back. It is next stated that the defendant no.1 neither taking steps for redemption of bharna bond nor allowing the plaintiffs to redeem the same as per terms of the contract and in spite of the plaintiffs being ready and willing at all material times to perform their part of contract, defendant no.1 is avoiding to perform her own part of the contract. It is also stated therein that the defendants 2nd party have been impleaded in this suit only to avoid future objection. It is also disclosed that plaintiff no.2 has attained majority. 5 3. On the pleadings of the parties, the following issues have been framed for determination in this suit:- i). Is the suit, as framed, maintainable? ii). Have the plaintiffs got valid cause of action or right to sue? iii). Is the suit barred by law of limitation and Principles of estoppel,waiver and acquiescence ? iv). Is the suit bad for misjoinder of parties ? v). Whether the Mahadanama dated 23.8.1974 allegedly executed by defendant no.1 in favour of the plaintiffs legal, valid and enforceable ? 4. Issues no.2 and 5 : Two issues have been dealt with together. According to the defendant plaintiff no.1 was minor on 23.8.1974 when the Mahada was executed. But from perusal of the Mahada it appears that plaintiff no.1 was major. To prove it school leaving certificate, admission register, matriculation certificate and harashwacope have been submitted and examined. Learned trial court has held that on the date of Mahada all the three plaintiffs were minor. As such, Mahada cannot be enforced. It further held that the plaintiffs have no cause of action or right to sue. These two issues were decided against the plaintiffs. 5. Issues no.1 and 3 :- The learned counsel for the respondents argued that in this case plaint does not contain Form 47 and 48 of Appendix A of C.P.C. and section 16 of Specific Relief Act. In such case the plaintiff has to aver about his readiness and willingness to perform his part of the contract from 6 the date of the contract to the date of the suit. Learned trial court has recorded in its finding that the contesting defendant has resisted the plaintiffs’ claim on the ground of change of circumstances since the date of Mahada. Mahada does not show that the contesting defendant negotiated to sell the land in question for the purpose of construction of her house. It has been held that the suit, as framed, is maintainable and the suit is not barred by waiver. Point of limitation has not been pressed. These two issues are decided in favour of the plaintiffs. 6. Issue No.4:- While deciding the issue no.4 the trial court has held that since the defendant 2nd parties are necessary party, the suit is bad for misjoinder of parties. Rest issues have not been pressed. 7. This appeal has been pressed by the learned Counsel for the appellants only on the findings recorded on issues no.2 and 5 jointly. While deciding These two issues the trial court has accepted the defence taken by the defendants that the plaintiff no.1 was minor at the time of execution of agreement to sell and the agreement to sell is nothing but a contract for sale and, accordingly, the plaintiff no.1 was not competent to enter into contract and has decided these two issues against the plaintiff. 8. Learned counsel for the respondent defendants submitted that the property was mortgaged and the suit for specific performance of contract which was specifically mentioned, has rightly been dismissed. This issue, though not framed but dealt, 7 has been dealt with by the trial court and the trial court has recorded a finding that the plaintiffs be paid the entire money in compliance of the notice given by defendant no.1. Therefore, the mortgaged suit stood repudiated. Thus, this plea of learned counsel for the defendant is rejected. 9. In so far as the plaintiffs no.2 and 3 are concerned the suit could not have been dismissed, as the plaintiffs no.2 and 3 were dully represented through guardian. Now the suit is dismissed, therefore, in finding issues no.2 and 5 as decided against the plaintiffs no.2 and 3 are set aside and in view of the admitted position in the pleadings, issue no.2 and 5 are decided in favour of paintiff no.2 and 3. 10. The learned trial court has committed error in not taking into account that entire transaction was dealt with by the father of the plaintiffs and plaintiffs no.2 and 3 who were represented through father were competent for relief. The entire suit could not have been dismissed, if it could have been dismissed could have been dismissed only of the plaintiff no.1. However, the trial court has also not correctly dealt with the crux of the issue that the defendant herself executed the agreement for sale which was a registered one and registration was done before the Registry Officer in presence of the defendant,the defendant no.1 had seen the plaintiff no.1 at the time of execution of the sale and otherwise she lives in the same house admittedly. Therefore, it was fault of the defendant herself even if it is accepted plaintiff 8 no.1 was minor and one cannot be allowed to seek benefit on her own fault. Regarding the determination of age of the plaintiff no.1 the trial court ought to have got the plaintiff no.1 medically examined for age it has not been done in the present case. 11. Learned counsel for the plaintiff appellants further relying upon section 20(4) of the Specific Relief Act stated that this plea was not available to the plaintiff while learned counsel for the defendant respondents placed reliance on section 9 of the Specific Relief Act that it is open for the defendant to take all the grounds available if matter arises out of contract. Without expressing any opinion on this submission, since the trial court has failed to discharge his duty by not getting the age determined by the Medical Board the age of the plaintiff no.1, the finding recorded on issues no.2 and 5 only is set aside in respect of plaintiff no.1 trial court is directed to get the evidence of age as determined by the Medical Board of the plaintiff. 12. The appeal is partly allowed and partly remanded for the purpose of determination of issue in respect of plaintiff no.1. The Patna High Court,Patna. The 22nd April,2011. AnilKrSinha/N.A.F.R. ( Prakash Chandra Verma, J.)