- (1.) THIS is a defendants' appeal arising out of a suit for specific performance. The relief of specific performance was not granted by the Courts below but the suit was decreed for recovery of Rs. 8,000/- from the defendants Nos. 1 and 2 with pendente lite and future interest at the rate of Rs. 4/- per cent per annum. Out of the above amount a sum of Rs. 5,000/- was awarded by way of damages for breach of contract and a sum of Rs. 3,000/- related to the refund of the earnest money.
(2.) THE short facts of the case are : that the house in dispute in respect of which an agreement for sale dated 3-4-1962 had been arrived at belonged to defendant No. 1 and the defendant No. 2 and his brothers. It is not disputed that a moiety share belonged to defendant No. 1 on the one hand and the remaining half belonged on the other hand, to defendant No. 2 and his three brothers. THE agreement was to the effect that defendants Nos. 1 and 2 would sell the said house to the plaintiff for Rs. 10,040/-. A sum of Rs. 3,000/- was paid as earnest money and the balance was agreed to be paid at the time of execution of the sale deed. It was stipulated that the sale deed would be executed within three months from the date of agreement. In Jan. 1963 extension of time was granted at the request of defendants Nos. 1 and 2 and on their request a further sum of Rs. 2,600/- was advanced to them on 17-1-1963. It was alleged by the plaintiff that although he was ready and willing to perform his part of the agreement for the execution of the sale deed, yet the defendants postponed it on one pretext or the other and in breach of the terms of the agreement they executed a sale deed in favour of defendant No. 3, Ilam Chand for a sum of Rs. 15,000/- on 21-1-1963. The defence of the defendants Nos. 1 and 2 was that plaintiff knew full-well that defendant No. 2 had three brothers and a mother, all of whom were co-sharers of the said house and that the plaintiff had taken upon himself the responsibility of persuading them also to agree to join the execution of the sale deed in his favour. It was contended that the agreement was subject to the condition that the plaintiff would make those co-sharers agree to execute the sale deed in his favour which he had failed to do. It was further pleaded that the defendants formed a joint Hindu family along with the brothers of defendant No. 2 and that the agreement was not for the benefit of the family and was not capable of being enforced in a Court of law. The Courts below held that the defendant No. 3 was a bona fide purchaser without notice and consequently the sale deed in his favour was not illegal. Hence, no decree was passed against him. A decree was, however, passed against defendants Nos. 1 and 2 (the present appellants) for recovery of Rs. 8,000/- with pendente lite and future interest at the rate of Rs. 4/- per cent per annum. The decree was confirmed by the lower appellate Court.
(3.) THREE points were urged before me on behalf of the appellants. The first and the most formidable contention of the appellants was that the terms of the agreement dated 3-4-1962 (Ext. 26) were reduced to writing, that it nowhere recited that Dhara Singh, defendant No. 2 was executing the agreement in his capacity as a Karta of the joint Hindu family, nor did it stipulate that defendant No. 2 took upon himself the responsibility of making his other brothers join in the execution of the sale deed and consequently the Courts below were in error in spelling out a new case and permitting evidence to be led to the effect that either Dhara Singh had promised to execute a sale deed in his capacity as the Karta of the joint family or that he had undertaken to persuade his brothers also to join in execution of the sale deed. It was further argued that since these conditions were not included in the terms of the agreement, the plaintiff had no right to insist on their fulfilment and to refuse to have the sale deed executed in the event of the defendants' inability to satisfy those conditions. It was vehemently urged that the agreement did not mention the capacity in which Dhara Singh, defendant No. 2, had executed the agreement to sell and oral evidence about it was barred, that S.92 of the Indian Evidence Act did not permit any evidence to be led, to add to or vary the terms of an agreement reduced to writing, the Courts below acted illegally in permitting such evidence and in passing a decree for specific performance on the finding that the defendant had committed a breach of contract. The decree for damages to the extent of Rs. 5,000/- was also challenged by the appellants on the same ground, namely, that since there was no breach committed by the defendants, they were not entitled to a decree for damages. As regards the objection founded an S.92 of the Indian Evidence Act, it may first be noticed that the concurrent findings of the Courts below are that from the entire circumstances of the case and the evidence adduced by the parties it had been established that defendant No. 2, Dhara Singh had executed the agreement to sell in his capacity as the Karta of a joint Hindu family. The lower appellate Court has expressly observed in its judgement :- "The agreement to sell was arrived at by defendant No. 2 in his capacity as the Karta of the joint family and the finding recorded to that effect by the learned Additional Civil Judge has not been challenged before me in appeal." Thus, it is not open to the appellant now to suggest that he had signed the agreement to sell in his individual capacity. Moreover, even the bar of S.92 of Indian Evidence Act would not operate in the present case. Admittedly Dhara Singh, defendant No. 2 was a party to the agreement and the oral evidence was led by the defendants only to show that he had appended his signature in his capacity as the Karta of the joint family. It was held by a Division Bench of this Court in Raghunath Tewari v. Budhoo Ram Tewari, AIR 1932 All 112 that :- "Where a lease is ostensibly taken in the name of one member of a joint Hindu family, S.92 does not prevent the other members of the family from showing that it was a lease taken by the entire joint family, although the name of one only of its members was entered in the document." Thus, the finding of the Court below that Dhara Singh executed the agreement to sell in his capacity as Karta was correct and oral evidence could be led for proving the character of the execution, as the written agreement itself was silent.;