TAPAN KUMAR DUTT, J. - (1.) TODAY the learned Advocate for the respondent has completed his submissions and thereafter the learned Advocate for the appellants has also made his submissions in reply. Hearing has been concluded.
(2.) THE Court now delivers the following judgement : The predecessor-in-interest of the present plaintiffs-appellants namely, Mussamat Aklimannessa Bibi filed a suit for specific performance of contract against the defendant-respondent, Smt. Monorama Mondal being Title Suit No. 74 of 1976 which was placed before the learned 1st Court of Munsif at Basirhat and the learned Trial Court after a contested hearing by judgement and decree dated 29.11.1978 decreed the said suit in preliminary form and directed the defendant to execute the Kobala concerned. Challenging such decree the defendant filed Title Appeal No. 88 of 1979 which was placed before the learned 14th Additional District Judge, 24-Parganas and the learned Lower Appellate Court by judgement and decree dated 11.6.1980 allowed the said Title Appeal and dismissed the Title Suit concerned. Challenging the impugned judgement and decree passed by the learned Lower Appellate Court, the plaintiff filed the instant appeal but on the death of the plaintiff the present plaintiffs-appellants have been substituted in place and stead of original plaintiff-appellant. The facts of the case, briefly, are as follows : On 22.1.1971 three deeds and/or agreements were executed. One of such documents was a registered sale deed by which the original plaintiff transferred the suit property in favour of the defendant for a consideration of Rs.4,000/-. The other deed was a deed of ekrarnama executed by the defendant in favour of the plaintiff and it was agreed between the parties that the defendant shall reconvey the suit property in favour of the plaintiff if the plaintiff repays the aforesaid consideration money within a stipulated period of time. The other 3 document which has been described as an agreement was executed by the plaintiff in which the plaintiff stated that for the purpose of certain pre-emption proceedings she needed money and thus she sold the suit property in favour of the defendant for a consideration and that she was likely to become the owner of certain properties (described in 'Ka' schedule to the said agreement) and a promise was made by the plaintiff that on becoming the owner of the said properties through the pre-emption proceedings she would sell the said properties (i.e. 'Ka' schedule to the agreement) to the defendant and the defendant would in such circumstances re-convey the suit properties to the plaintiff. It was also mentioned by the plaintiff in the said agreement that in the event the plaintiff becomes unable to sell the aforesaid 'Ka' schedule properties (to the agreement), then in that case the defendant would not be under any obligation to re-convey the suit properties in the plaintiff's favour. The said agreement has been marked as Exhibit � 'E'. It seems from the discussions made by the learned Trial Court that an argument was advanced on behalf of the plaintiff before the learned Trial Court that it was a case of contingent contract and reference was made to Sections 31 and 35 of the Indian Contract Act, 1972. It also appears from the judgement of the learned Trial Court that the defendant had argued that Section 62 of the Contract Act applies and the ekrarnama was not required to be performed since the said Ext. 'E' came into existence i.e. the agreement. However, the learned Trial Court came to the conclusion that Section 62 and Section 56 of the Contract Act will not apply in the instant case and the learned Trial Court came to the conclusion that since D.W. 1 has stated in 4 evidence that the said witness cannot say what was written in the papers, the said learned Trial Court could not agree with the submissions made on behalf of the said defendant.
(3.) THE learned Trial Court came to the finding that it was a case of contingent contract as there was some event collateral to such contract i.e. the pre-emption case. On the basis of such findings the learned Trial Court decreed the said suit in preliminary form as already indicated above. The learned Lower Appellant Court found from the record that the plaintiff was not a party at all in the pre-emption proceedings which the plaintiff had mentioned in the said agreement (Ext. E) and the learned Lower Appellate Court raised a question as to how could, in such circumstances, the plaintiff transfer the 'Ka' schedule property to the agreement (Ext. E) in favour of the defendant. The learned Lower Appellate Court found that a certain Matiar Rahaman Dhali and his brothers were the applicants in the pre-emption proceedings and they got some properties by way of the pre-emption proceedings. The learned Lower Appellate Court was of the view that the contract in question could not be specifically performed and as such there was no merit in the suit. The learned Advocate appearing on behalf of the plaintiffs-appellants submitted before this Court that the parties to the suit were mistaken as regards the identity of the property which the plaintiff was expected to become the owner of on conclusion of the pre-emption proceedings because it will appear from the records that the properties described in schedule 'Ka' of the said agreement (Ext. E) are not the properties which have been described in the pre-emption 5 proceedings and, therefore, the agreement being Ext. E is void as both the parties were under a mistake as to a matter of fact essential to the agreement. The said learned Advocate further submitted that it will appear from the records that the plaintiff herself did not file any pre-emption case at all in respect of the properties described in schedule 'Ka' to the said agreement (Ext. 'E') and, therefore, the parties were also mutually mistaken with regard to a matter of fact essential to the agreement and thus according to him Section 20 and Section 36 of the Indian Contract Act, 1872 apply. Section 36 of the said Act of 1872 stipulates that contingent agreements to do or not to do anything, if an impossible event happens, are void, whether the impossibility of the event is known or not to the parties to the agreement at the time when it is made. The said learned Advocate also referred to Section 56 of the said Act of 1872 which stipulates inter alia that an agreement to do an act impossible in itself is void. The said learned Advocate submitted that novation of contract does not arise since the agreement being Ext. 'E' is void. He has further submitted that the deed of conveyance and ekrarnama should be treated as one transaction and the Ext. 'E' should be treated as void document.;