Case: Smt. Shaharyar Bano and Another Vs. Sanwal Das

1. The appellants were the defendants in a suit filed by the respondent for specific performance of an agreement entered into by them to sell a house belonging to them in Bhopal. The agreement, Ex.P.1, is dated 17th September 1959 and reads as follows :"Today i.e. on, one house in which I am living situate at Gojarpura, I agree to sell the entire house apart from theShaharyar Bano Begum daughters of late Sardar Akbar KhanWitness :Sd/Ramnarayan Singh Chouk (in Hindi)Ramprakash (in English)."The trial Court dismissed the suit holding that though the appellants executed an agreement of sale in favour of the plaintiff by which they agreed to sell only the house in which they were residing and the gate adjoining the said house, it was not proved that the property to be sold included the open plot of the land between the gate and theother house occupied by the tenants and also did not include such other house and hence a decree for specific performance cannot be passed to the extent of all the four properties for which specific performance was prayed for. It however ordered the defendants to return the sumof Rs. 2, 000/received by them a the time of agreement2. Before the High Court it was argued that the agreement, Ex.1 was too vague and therefore unenforceable. The High Court took the view that the terms of the agreement were quite clear and the trial Court was wrong in refusing to pass a decree for specific performance. Another argument advanced before the High Court was that although the defendants at the time of entering into the agreement considered themselves to be the sole owners of the whole house, they later on discovered that there were others also and that they were therefore incapable of carrying out the terms of the contract. The respondent stated before the High Court that he relinquished all claims for such further performance or for any damages or compensation either for deficiency or for loss or damage which may be sustained by him through the default of the defendants on that ground. In the result the High Court gave a decree for specific performance of the contract and for ad of the whole house, except the portion which has been shown in the sketch map attached to the plaint as having been expressly exempt from sale, regarding the right, title and inters of the defendants and that the defendants would not be liable tocompensate the plaintiff for any portion ofthe property that may go out of his hands onaccount of the claim of others which may be proved in the house.

Reasoning:
Points 1 and 2do not really call for much comments nor are they susceptible to much argumentin their support. The contract, Ex.1 is quite clear and definite. The fact that the vendee was asked to consult his pleader and get pacci receipt executed did not make the contract dependent upon the vendee consulting his pleader and getting the pacci receipt. The fact that he did not return thereafter to get pacci receipt does not make the contracts binding on the appellants. As regards the rights of the, it appears that some of them applied to be added as parties in this suit and on the plaintiffs objection their applications were dismissed. We do not see how it affects right of the plaintiff to get the decree for specific performance of the agreement with him if he is prepared to take what the defendants agreed to convey to him and took the risk of its turning out to be less than what they had agreed to sell to him. That is an effect what the High Court has provided and we see no. flaw in this4. The most important point is what was it that was agreed to be sold. It appears that the premises in question, to use that colourless term because of the confusion which the use of the word house has led to in this case, seems to consist of three portions and a passage. In one of the portions the defendants were residing. That was to the right hand side of the passage. At the end of the passage was another portion which had been leased to tenants, and to the left hand side of the passage was the portion which is specifically excepted from the agreement as having been given to the maternal uncle of the defendants. The claim of the plaintiff was for the house occupied by the defendant as well as the house which was let out to the tenants and the passage as a whole. According to the defendants only the house which they were occupying was agreed to be sold. It is because of this confusion that the trial Court refused to give a decree for specific performance on the ground that the agreement was vague. The High Court took the view that the agreement included the portion occupied by the defendants as well as the portion let out to the tenants, in other words that the defendants had agreed to sell all what they owned in these premises except the portion to the left of the passage which had been given to their maternal uncle. We have carefully gone through the evidence and are of the view that what was agreed to be sold was only the portion which was in the occupation of the defendants and the agreement did not include the portion which was let out to the tenants. It follows that the passage would be common to the portion in the occupation of the defendants as well as the portion let out to the tenants7. It is therefore obvious that everybody concerned in the matter proceeded on the assumption that there were two houses, one occupied by defendants and another in the occupation of the tenants. The agreement mentions the house in which the defendants were living as the subject matter of the agreement. The words entire house cannot in any way militate against this fact. It will only by the entire house which the defendants were living. As we stated earlier, the plaintiff was aware of the fact that there was a portion of the premises which was referred to and understood as a separate house by all those concerned and which was in the occupation of the tenants. If the agreement was to include that portion also it was his duty to have it specifically mentioned in the agreement. Not having done so he has got to fail in his claim regarding that portion of the house.