Decided on April 11,1960

Santosh Kumar Adya Appellant
Jatindra Nath Banerjee Respondents


- (1.) This second appeal is by the Defendant and arises from a suit for specific performance of a contract for the sale of 2 cottons of land situated on Khurut Road at Ramkrishnapur within Howrah Municipality. The facts are briefly as follows. One Rajendra Nath Dutta died leaving- two daughters Nabanalini and Jatanbala. There was a partition suit pending in the First Court of Subordinate Judge, Howrah, and both Nabanalini and Jatanbala were Defendants in that partition suit. On December 21, 1943, Nabanalini executed a bainanama in favor of the Plaintiff Jatindra Nath Banerjee agreeing to sell 2 cottons of land at Khurut Road, Ramkrishnapur, Howrahj for Rs. 3,800. There was a recital in the document that Nabanalini required the money for defraying the expenses of the partition suit and for the marriage of her daughters and that she had received Rs. 1,000 as the earnest money. In the partition suit finally decreed Nabanalini got only 8 chhataks and 3 sq. feet out of the 2 cottons plot. Nabanalini died on September 10, 1946, leaving a son Puma Chandra Pyne, Defendant No. 2. Jatanbala was alive when the present suit was instituted on December 20, 1949, that is, just within six years from the date of the bainaiwma which was a registered document. During the pendency of the suit Jatanbala died and her sons Santosh Kumar Adhya and Sisir Kumar Adhya were substituted for her. These sons of Jatanbala are the Appellants in this Court.
(2.) Jatanbala filed a written statement contending that the suit is not maintainable, that Nabanalini had no legal necessity for alienation of the land, that as successor to Nabanalini's share of the property by survivorship she was not bound by the agreement for sale and that also the bainanama was a collusive document. The learned Munsif, Additional Court, Howrah, who tried the suit, held that there was legal necessity because Nabanalini had need of money to defend the partition suit and there was no evidence to show that her husband Grokul Pyne, who lived at the house of his father-in-law, had any independent income, and that there was also need for the money for the marriage of the daughters of Nabalalini. As regards the question whether Jatanbala who got the property on survivorship was bound by the contract, the learned Munsif referred to the provisions of Section 27, Clause (c) of the Specific Relief Act and held that the clause was applicable to the facts of the case, and in view of that clause Jatanbala was also bound under the contract. Accordingly the suit was decreed in favor of the Plaintiff. The proportionate price of 8 chhataks 30 sq. feet being Rs. 1,029 the Plaintiff was directed to deposit Its. 29 in Court and the Defendant were thereupon called upon to execute the sale deed in respect of 8 chhataks 30 sq. feet which had fallen in the allotment of Nabanalini as a result of the partition decree.
(3.) There was an appeal by the sons of Jatanbala who had during the course of the original suit been substituted for their mother as the contesting Defendants. The learned Subordinate Judge, Howrah, however, agreed with the learned Munsif in holding that there was legal necessity for Nabanalini to obtain money by agreeing to sell her share of the property and the learned Subordinate Judge also agreed that the provisions of Section 27, Clause (c) of the Specific Relief Act was applicable, and in view of that clause Jatanbala and her heirs were bound by the contract. Accordingly the appeal was dismissed.;

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