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Ram Dulari & Another v/s Ram Lal & Another


Company & Directors' Information:- C. LAL LIMITED [Active] CIN = U51909HR2012PLC046499

    Regular Second Appeal No. 308 of 2004

    Decided On, 11 March 2020

    At, High Court of Himachal Pradesh

    By, THE HONOURABLE MR. JUSTICE SURESHWAR THAKUR

    For the Appearing Parties: Sanjeev Kuthiala, Anaida Kuthiala, N.K. Thakur, Karanveer Singh, Advocates.



Judgment Text


Sureshwar Thakur, J.

1. The instant appeal, is, directed by the aggrieved defendants, against, the concurrently recorded judgments, made, initially by the learned trial Judge, and, latter by the learned first appellate Court, (i) where through the plaintiffs' suit, bearing suit No. 501/95/1991, seeking there through rendition, of, a decree of specific performance, vis-a-vis, suit the suit land, and, against the defendants, became decreed, by, the learned trial Judge, and, in an appeal carried there against, by the aggrieved therefrom, before the learned first appellate Court, the afore appeal also, suffered an alike fate. The defendants concerned becoming aggrieved therefrom, constitute there against, the instant regular second appeal, before this Court.

2. When the instant appeal, came up, for admission, before this Court, on 22.7.2004, this Court admitted the instant RSA, on, the hereinafter extracted substantial question(s), of, law:-

(i) Whether under the provisions of the Specific Performance Act, the Court is within its right to refuse the relief of specific performance of contract on the ground that the alleged agreement to sell is not enforceable on account of lack of mutuality of contract and competence of the parties entering into the same as envisaged under Section 11 of the Indian Contract Act, 1872?

(ii) Whether the agreement made unilaterally by general power of attorney without the signatures of the Principal of the vendees, a where the vendees are minor can be construed to be a contract as envisaged under the Indian Contract Act and whether in such unilateral agreements, it can be construed to have a mutuality of contract to bind the principal for the act of the agent?

Substantial questions of law

3. Shyam Lal, through Ext. PW1/A, Exhibit whereof, became witnessed by two witnesses thereto, namely, one Ram Swaroop, and, by one Kishori Lal, hence there through, agreed, to, execute, a, registered deed of conveyance, vis-a-vis, the then minor plaintiffs, and, qua the suit land. Obviously, since the minor vendeers were under, a, legal disability to, execute, a, registered deed, of, conveyance, necessarily, hence the registered deed of conveyance, rather would hence become executed, through, their guardian, and, next friend, and, where through whom they instituted, the, afore suit. A disclosure exists in Ext. PW1/A, vis-a-vis, out of the settled recited therein, sale consideration, comprised, in, a sum of Rs. 45,000/-, a sum of Rs. 5,000 being received, by one Shyam Lal, from, the vendee, (i) and also, a further echoing , is, borne therein, vis-a-vis, in contemporaneity, vis-a-vis, the making/drawing, of, Ext. PW1/A, rather the possession of the suit property becoming delivered, to, the vendee concerned, (ii) necessarily, hence the afore possession became received through their friend, and, natural guardian, wherethroughwhom, they instituted, the, extant suit. The drawing(s), of, Ext. PW1/A, was, in pursuance, of, or in sequel, to an un-contested, hence validly executed power of attorney, drawn/executed by the owner of the suit land, one, Mohan Lal, vis-a-vis, Shyam Lal, (iii) reiteratedly, the latter made Ext. PW1/A, containing therein, the afore-stated recitals. Since, the constitution, of, the maker, of, Ext. PW1/A, as, the opposite general power of attorney, by the owner of the suit land, namely one Mohan Lal, through, the opposite therewith, power of attorney, becoming drawn, remains un-contested, hence on all facets. (iv) Consequently, the effect, of, lack of contest, on part of the defendants, vis-a-vis, the validity, of, the drawing(s), of, the opposite power of attorney, by one Mohan Lal, vis-a-vis, Shyam Lal, (v) is qua it bringing forth, an inevitable conclusion, qua, the defendants, who are the legal heirs, of, deceased Mohan Lal, becoming estopped, to, contend qua Shyam Lal, becoming not conferred, with any valid authorization, by the afore principal, hence to validly act, as, the opposite agent, hence to validly draw or make Ext. PW1/A.

4. Be that as it may, the learned counsel appearing, for the aggrieved defendants, also with much force and vehemence, (i) also makes a contention before this Court, that Ext. PW1/A, is, not a validly drawn agreement, interse the plaintiff, the, then minors, who sue through their next friend, and, guardian, and, vis-a-vis, one Shyam Lal, the validly constituted general power of attorney, for, the relevant purpose, by his Principal, namely one Mohan Lal, (ii) hence even if, assumingly, Ext. PW1/A, is, proved to be validly executed, (iii) thereupon, for lack of bileterality, of, contract, interse the plaintiff, and, vis-a-vis, the defendants concerned, (iii) thereupon it is neither a validly executed contract, nor any decree of specific performance, for, enforcing the, afore contract of sale, can become validly rendered. However, for the reasons, to be assigned hereinafter, the afore argument, is, not accepted, by, this Court, as (a) even if, the making of Ext. PW1/A, by one Shyam Lal, a validly constituted power, of, attorney, by his Principal, namely one Mohan Lal, though visibly lacks the signatures, of, the guardian and next friend, of, the plaintiffs, (iv) and hence, even if it is not a validly drawn bilateral instrument, nor hence is a bilateral contract, (v) yet it is amenable, for a decree, of, specific performance, becoming rendered thereon. (vi) Especially, with PW-1 proving, all, the afore recitals, borne in Ext. PW1/A, upon, his stepping into the witness box, and the afore, yet upon his becoming cross-examined, by, the counsel for the defendants, and whereat, suggestions, became meted to him, vis-a-vis, the payment(s) in cash, being a sequel, of, withdrawals, from, the, saving(s) bank account, of, the vendee, and, whereto affirmative answer(s), rather emanated from PW-1, (vii) and, also rather, with no further suggestion, being meted to PW-1, vis-a-vis, the recitals, occurring in Ext PW1/A, and theirs making bespeaking, vis-a-vis, out, of, the settled recited sale consideration, of, Rs. 45,000/-, a sum of Rs. 40,000/- being liquidated, in contemporaneity, vis-a-vis, the drawing, of, Ext. PW1/A, rather to its maker, who as aforesaid was authorized to receive it. (viii) Moreover, also with one of the witnesses, to Ext. PW1/A, after, his in his examination-in-chief, hence making a firm deposition(s),vis-a-vis, in contemporaneity, of, drawing, of, Ext. PW1/A, a sum of Rs. 40,000/-, being liquidated, to the validly constituted power, of, attorney, by one Mohan Lal, (vi) and, thereafter, rather upon an affirmative suggestion, being meted to him, vis-a-vis, the afore defrayment(s), of, a, substantial part, of, consideration, to Shyam Lal, hence in cash, hence an affirmative answer, rather emanating, from him, also re-enforcingly, crystallizes an inference, vis-a-vis, in contemporaneity, qua, the, making Ext. PW1/A, hence out of the total sale recited sale consideration, of, Rs. 45,000/-, a sum of Rs. 40,000/- becoming liquidated, to, Shyam Lal.

5. The effect, of, the afore proven liquidation(s), of, a substantial part, of, the agreed sale consideration, to, Shyam Lal, by the father and natural guardian, of, the then minor plaintiffs, vis-a-vis, whom, it was undertaken, in Ext. PW1/A, by its executants(s), qua, a, registered deed of conveyance, rather, with no covenanted limitation, of, time being prescribed therein, hence becoming executed. (i) thereupon, dehors no signatures, of, the opposite vendees, or, of their friend, and, natural guardian, occurring, in Ext. PW1/A, rather the afore cogent provings, of, passing(s), of, a substantial portion, of, the settled sale consideration, from, the vendees, through their natural guardian, to, one Shyam Lal, (ii) imperatively constitutes the requisite clincher, for , a, firm conclusion, qua hence, the vendees concerned, accepting all the recitals, borne in Ext. PW1/A, and, also, thereupon the offer, if any, arising from the undertaking, if any, as embodied in Ext. PW1/A, despite its, being unilaterially drawn or executed, by one Shyam Lal, nonetheless, it firmly settling, the, bargain, or, the contract, of, sale, as appertaining, to the suit land, (iii) or in other words, the purported unilaterality, of, drawing of Ext. PW1/A, rather becoming meaningless, as the therewithin occurring hence the offer of sale consideration, upon, becoming cogently proven, to, become liquidated, by the vendees, through, their friend, and, natural guardian, vis-a-vis, one Shyam Lal, conspicuously, evinces also proof, of, the opposite offer becoming proven, to, become accepted, whereupon, naturally, a, settled and enforceable contract, of, sale came into existence.

6. The learned counsel, appearing for the aggrieved defendant, has also proceeded, to make a contention, before this Court, that, dehors the proven recitals, of, passing, of a substantial part, of, the sale consideration, as, hence embodied in Ext. PW1/A, from, the vendee concerned, through their friend, and, natural guardian, vis-a-vis, by one Shyam Lal, the validly constituted power, of, attorney, of, one Mohan Lal, also, is yet not a sufficient proof, of, the power of attorney, after receiving, it, his hence passing it, onwards to the principal, (i) and hence, the drawing, of, Ext. PW1/A, is, stained with vice(s), of, mis-representation, and, of, fraud, and, rather yet, it is, amenable, for being discountenanced. However, the afore submission, addressed before this Court, is, not rested, upon any pleadings, in consonance therewith, being made in the plaint, hence, is rejected.

7. Lastly, the learned counsel appearing, for, the aggrieved defendant, has, made a vehement address, before this Court, that the refund, of, the earnest money, rather being a sufficient compensation, in, lieu of, rendition, of, a decree of specific performance, and, that hence, both, the, concurrently rendered decree(s), by both the learned Courts below, (i) hence mandatorily casting, an injunction, upon the appellants herein, to, execute, a registered deed, of, conveyance, with the plaintiffs, being infirm, and, warranting interference.

8. Even though, the afore address, is, made, beyond the domain, of, the afore substantial question(s), of, law, yet vigor, if any, thereto, becomes denuded by the trite factum, (i) that yet, for, the afore address, becoming successful, it becoming incumbent upon the defendants, to adduce clinching evidence, hence making the echoing(s), vis-a-vis, the un-readiness and un-willingness, of, the plaintiffs, to execute a registered deed, of, conveyance, vis-a-vis, the suit land, and, with the defendants. However, contrarily, the stark factum, of, despite legal notice(s), comprised in Ext. PW1/B, becoming served, upon them, as, unveiled by the opposite postal receipt(s), hence, seeking there through a request, upon, the aggrieved defendants, to, execute a registered deed, of, conveyance, with the plaintiffs, yet the defendants, omitting to respond thereto, (ii) omission whereof, capitalize(s) an inference, imperatively, when they were thereat ably leveraged, to, make all the afore response(s), hence in their reply, to, Ext. PW1/B, yet theirs remaining reticent, qua rather theirs waiving or abandoning, all the, afore ground(s), and, also a concomitant inference, is, drawable against them, vis-a-vis, theirs rather evidently, evincing the un-readiness and un-willingness, to, execute the registered deed, of, conveyance, with the plaintiffs. In aftermath, the, afore derelict conduct, of, the defendant

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s, rather work against them, in theirs making the afore espousal. Contrarily, the plaintiffs rather are concluded, to, evince their readiness and willingness, to execute a registered deed, of, conveyance, with, the defendants concerned. Consequently, the afore submission, vis-a-vis, in lieu of, rendition, of, decree of specific performance, rather refund of earnest money, being directed to be made by the defendants to the plaintiff, when hence for its obtaining success, rather warrants its becoming squarely rested, upon, the proven un-readiness, of, the plaintiffs, (iii) and whereas, the plaintiffs, provenly evincing their readiness and willingness to perform their part, of, the contract, and, also with theirs also vicariously liquidating a substantial part, of, the sale consideration, of, Rs. 45,000/-,vis-a-vis one Shyam Lal. (iv)Thereupon, reiteratedly, the afore dereliction(s), of, the defendants, also deprive(s) them, to, make the afore address, before this Court. The substantial questions of law, are, answered accordingly. 9. There is no merit in the instant appeal, and, the same is dismissed. The impugned judgment(s) and decree(s), pronounced, by both, the learned Courts below, are, affirmed and maintained. All pending application(s), if any, are disposed of.
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