Patna High Court
Urmilla Devi Jain vs Ashok Kumar on 5 January, 2024
Author: Khatim Reza
Bench: Khatim Reza
IN THE HIGH COURT OF JUDICATURE AT PATNA
FIRST APPEAL No.20 of 2011
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1. Urmila Devi Jain (expunged vide order dated 10.08.2022)
2. Smt. Madhu Jain, Wife of Shri Arun Kumar Jain Resident of Mohalla-
Mahajan Toli No.-1, P.S.- Arrah Town, Circle- Arrah, District- Bhojpur.
3.1. Sarojani Devi Jain W/o Late Krishna Kr. Jain Permanent Resident of
Mohalla- Mahajan Toli No.-1, P.S.- Arrah Town, Circle Office- Arrah,
District- Bhojpur.
3.2. Kamal Kumar Jain S/o Late Krishna Kumar Jain Permanent Resident of
Mohalla- Mahajan Toli No.-1, P.S.- Arrah Town, Circle Office- Arrah,
District- Bhojpur.
3.3. Kaushal Kumar Jain S/o Late Krishna Kr. Jain Permanent Resident of
Mohalla- Mahajan Toli No.-1, P.S.- Arrah Town, Circle Office- Arrah,
District- Bhojpur.
3.4. Mina Agarwal D/o Late Krishna Kr. Jain, W/o Santosh Kr. Agarwal R/o-
498/ Nayibasth Nita Nagar Police Station Kidganj, Allahabad Pin- 211033
(U.P.), Permanent Resident of Mohalla- Mahajan Toli No.-1, P.S.- Arrah
Town, Circle Office- Arrah, District- Bhojpur.
3.5. Anju Agarwal D/o Late Krishna Kr. Jain, W/o Krishna Kr. Agarwal R/o
57/48, Ahamad Ganj, Opposite to Ifrin Hospital, Allahabad Pin- 211003
(U.P.) Permanent Resident of Mohalla- Mahajan Toli No.-1, P.S.- Arrah
Town, Circle Office- Arrah, District- Bhojpur.
4.1. Madhu Devi Jain W/o Late Rishav Kumar Jain Resident of Mohalla-
Mahajan Toli No.-1, P.S.- Arrah Town, Circle Office- Arrah, District-
Bhojpur.
4.2. Ajay Kumar Jain S/o Late Rishav Kr. Jain Resident of Mohalla- Mahajan
Toli No.-1, P.S.- Arrah Town, Circle Office- Arrah, District- Bhojpur.
4.3. Amit Kumar Jain S/o Late Rishav Kr. Jain Resident of Mohalla- Mahajan
Toli No.-1, P.S.- Arrah Town, Circle Office- Arrah, District- Bhojpur.
4.4. Nikil Kumar Jain S/o Late Rishav Kr. Jain Resident of Mohalla- Mahajan
Toli No.-1, P.S.- Arrah Town, Circle Office- Arrah, District- Bhojpur.
5. Arun Kumar Jain, Son of Late Harkhen Kumar Jain Resident of Mohalla-
Mahajan Toli No.-1, P.S.- Arrah Town, Circle- Arrah, District- Bhojpur.
6. Akhil Kumar Jain, Son of Late Harkhen Kumar Jain Resident of Mohalla-
Mahajan Toli No.-1, P.S.- Arrah Town, Circle- Arrah, District- Bhojpur.
7.1. Namita Jain W/o Late Rajesh Kumar Jain Resident of Mohalla- Mahajan
Toli No.-1, P.S.- Arrah Town, Circle Office- Arrah, District- Bhojpur.
7.2. Rohit Kumar Jain S/o Late Rajesh Kumar Jain Resident of Mohalla-
Mahajan Toli No.-1, P.S.- Arrah Town, Circle Office- Arrah, District-
Bhojpur.
7.3. Sonali Sah D/o Late Rajesh Kr. Jain Resident of Mohalla- Mahajan Toli No.-
1, P.S.- Arrah Town, Circle Office- Arrah, District- Bhojpur.
7.4. Mausam Jain D/o Late Rajesh Kr. Jain Resident of Mohalla- Mahajan Toli
No.-1, P.S.- Arrah Town, Circle Office- Arrah, District- Bhojpur.
Patna High Court FA No.20 of 2011 dt.05-01-2024
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7.5. Nishi Jain D/o Late Rajesh Kr. Jain Resident of Mohalla- Mahajan Toli No.-
1, P.S.- Arrah Town, Circle Office- Arrah, District- Bhojpur.
8. Deepak Kumar Jain, Son of Late Harkhen Kumar Jain Resident of Mohalla-
Mahajan Toli No.-1, P.S.- Arrah Town, Circle- Arrah, District- Bhojpur.
9. Bipul Kumar Jain, Son of Late Raj Kumar Jain Resident of Mohalla-
Mahajan Toli No.-1, P.S.- Arrah Town, Circle- Arrah, District- Bhojpur.
10.1. Anita Jain W/o Late Anil Kumar Jain Resident of Mohalla- Mahajan Toli
No.-1, P.S.- Arrah Town, Circle Office- Arrah, District- Bhojpur.
10.2. Anurag Jain S/o Late Anil Kumar Jain Resident of Mohalla- Mahajan Toli
No.-1, P.S.- Arrah Town, Circle Office- Arrah, District- Bhojpur.
11. Sunil Kumar Jain, Son of Late Raj Kumar Jain Resident of Mohalla-
Mahajan Toli No.-1, P.S.- Arrah Town, Circle- Arrah, District- Bhojpur.
... ... Appellant/s
Versus
1. Ashok Kumar Son of Manilal Gupta Resident of Mohalla- Mahajan Toli
No.-2, P.S.- Arrah (Town), Circle Office- Arrah, District- Bhojpur.
2. Arun Kumar, Son of Manilal Gupta Resident of Mohalla- Mahajan Toli No.-
2, P.S.- Arrah (Town), Circle Office- Arrah, District- Bhojpur.
3. Manoj Kumar, Son of Manilal Gupta Resident of Mohalla- Mahajan Toli
No.-2, P.S.- Arrah (Town), Circle Office- Arrah, District- Bhojpur.
... ... Respondent/s
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Appearance :
For the Appellant/s : Mr. Kamal Nayan Chaubey, Sr. Advocate
Mr. Sachchida Nand Singh, Advocate
For the Respondent/s : Mr. Jitendra Kumar Pandey, Advocate
Mr. Ranjan Kumar Dubey, Advocate
Mr. Kumar Gaurav, Advocate
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CORAM: HONOURABLE MR. JUSTICE KHATIM REZA
CAV JUDGMENT
Date : 05-01-2024
Heard Mr. Kamal Nayan Choubey, learned senior counsel
for the appellants and Mr. Ranjan Kumar Dubey, learned counsel for
the respondents.
2. The instant appeal has been preferred against the
judgment and decree dated 28.12.2010 passed by learned 7 th Sub
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Judge, Ararah in Title Suit No. 353 of 2007, whereby plaint was
rejected under Order 7 Rule 11 of Code of Civil Procedure.
3. The plaintiff-appellants filed Title Suit No. 353 of 2007
for a decree of specific performance of contract on the basis of an
agreement for sale dated 15.04.2000 executed by defendant no. 1,
namely, Ashok Kumar, defendant no. 2, namely, Arun Kumar and
defendant no. 3, namely, Manoj Kumar, all sons of Manilal Gupta in
favour of plaintiffs. The plaintiffs sought relief for a decree of a
specific performance of contract in respect of the suit property as
described in Schedule- Ka of the plaint in favour of the plaintiff and
against the defendants, directing the defendants to jointly perform the
part of their statutory obligation after receiving the remaining amount
of consideration from the plaintiffs and to execute the sale deed in
favour of the plaintiffs, failing which the sale deed be executed in
favour of the plaintiffs through the process of court.
4. The case of the plaintiff, in short, is that the property in
suit originally belonged to one Shambhu Ram. He had no issue, as
such, he, on 04.12.1974, executed a registered Will of his property in
favour of defendant nos. 1 to 3. Defendant nos. 1 to 3 at the time of
registration of Will were minors and as such, the said Will was
executed in favour of defendant nos. 1 to 3 under the guardianship of
their mother, namely, Ram Dulari Devi. After the death of Shambhu
Ram, a probate case no. 5 of 1988 was filed before the learned
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District Judge, Bhojpur at Araah. On protest the said probate case
was converted into Title Suit No. 7 of 1990. It is further contended
that during the pendency of the probate case bearing Title Suit No. 7
of 1990, all the three defendants executed an agreement on
15.04.2000
for sale for the property in dispute for a total
consideration of 21 Lakhs and received 6 lakhs and 51 thousands as
Baybeyana (earnest money) with a condition that the properties in
dispute along with other properties for a probate case (Title Suit No.
7 of 1990) is going on in Civil Court, Ara in which issues had been
settled and the same will be disposed of very soon, and after grant of
probate, first party (defendant nos. 1 to 3) will execute the sale deed
within three months from date of grant of probate and in case of
failure to do so by the first party, the second party will get it
registered through process of court.
5. It is further contended that first party by way of his part
performance of contract gave possession to the second party over a
shop having width of 10 and ½ feet and length 13 feet 4 inch, and in
the said shop, the second party had started business and till date he is
continuing in possession, and Rs. 14,49,000/- remained as balance
amount of the contract for sale which was to be paid at the time of
registration of sale deed. It is further pleaded that out of rest Rs.
14,49,000/-, the first party had received two lakhs on 05.02.2007 and
as such, only Rs. 12,49,000/- was to be paid by the plaintiff-
Patna High Court FA No.20 of 2011 dt.05-01-2024
appellants to the defendants-respondents at the time of execution of
the sale deed. It is further case of the plaintiff that due to dilly
dallying tactics of defendants inordinate delay was caused in grant of
probate.
6. The plaintiffs sent advocate notice to the defendants for
executing the sale deed in terms of agreement for sale dated
15.04.2000, but the defendants did not heed upon the said notice.
Therefore, the suit was filed.
7. On the other hand, the learned counsel for the
respondents submits that there was an unregistered agreement to sale
on 14.05.2000. It is submitted that agreement to sale was executed
with a condition that sale deed will be executed within three months
from the date of grant of probate case (Titie Suit No. 7 of 1990).
However, the said probate case was dismissed for want of
prosecution vide order dated 18.08.2016. The moment the respondent
came to know about the dismissal of the said probate case,
immediately filed M.A. No. 11 of 2016 on 01.10.2016 for restoration
of probate case (T.S. No. 7 of 1990) which is pending for its final
disposal. It is admitted case of the parties that the present suit was
filed before disposal of the probate case, therefore, the suit is
premature. The learned counsel for the respondents further submits
that the said agreement cannot be enforced unless terms mentioned in
the agreement occurs.
Patna High Court FA No.20 of 2011 dt.05-01-2024
8. On the basis of rival contentions of the parties, the
following points arise for consideration:-
(i) Whether agreement in question is contingent?
(ii) Whether enforcement of contracts contingent on an
event not happened?
(iii) Whether the plaintiffs have valid cause of action for
the suit?
9. On perusal of the contents of the agreement to sale, it is
apparent that there is clear assertion that final sale deed will be
executed only after disposal of probate case (Title Suit No. 7 of
1990). It is also admitted case of the parties that the said restoration
of probate case (T.S. No. 7 of 1990) is still pending before the lower
court and the suit was filed before disposal or grant of probate in
favour of defendant nos. 1 to 3. Therefore, the cause of action would
not arise for filing of the suit.
10. Unless that contingency was fulfilled, the contract was
not capable of enforcement as stated in Section 31 of the Indian
Contract Act. The parties entering into an agreement to sale is clearly
dependant on appropriate decisions being taken by the civil court in
probate case (Title Suit No. 7 of 1990). The agreement to sale was
not a conclusive contract. The performance of it was certainly
contingent upon such decision being available in favour of the
defendants. Therefore, plaintiffs have no cause of action for the suit
Patna High Court FA No.20 of 2011 dt.05-01-2024
before any judgment in Probate case is passed in favour of the
defendants.
11. In these circumstances, I do not find as to how the
agreement to sale would become enforceable in law as Section 32 of
the Indian Contract Act clearly provides that contingent contract to
do or not to do anything, if an uncertain future happens, can be
enforced by law only when that the event has happened.
12. I do not find that there is any perversity in such finding
as recorded by the learned trial court. Assailing of the findings of the
learned trial court, the plaint being hit by provisions of Section 31
and 32 of the Contract Act, would not carry forward the case of the
appellants as, in any case, the plaint deserved to be outrightly
rejected.
13. As a result of the above discussion, I find no merit in
the instant appeal. The appeal is, accordingly, dismissed .
(Khatim Reza, J)
premchand/-
AFR/NAFR NAFR
CAV DATE 21-08-2023
Uploading Date 06-01-2024
Transmission Date N/A
