P L D 1964 Supreme Court 807 (PLP)

CORNELIUS, C. J. These two certificated appeals are brought before the Court to call in question a decision of a Division Bench of the High Court in a suit brought by M. Majid against three persons, namely, Surendra Mohan Banerjee, his mother Sukumari Devi, and one Mrs. Anwara Chowdhury. The suit was for specific performance of an agreement of sale of certain house property in Dacca City, which was executed on the 9th February 1951 at Calcutta by Surendra Mohan. It was instituted on the 3rd May 1954. Before that date, the property had been transferred to Mrs. Anwara Chowdhury. The trial Court decreed the suit, but in appeal, the High Court dismissed it as to the half share of Sukumari Devi, and made consequential amendments in the decree. Civil Appeal No. 30-D of 1961 is by Mrs. Anwara Chowdhury. Civil Appeal No. 31-D of 1961 is by the plaintiff M. Majid. It is common ground that Surendra Mohan and his mother Sukumari Devi were owners of the property in equal shares. The agreement of sales was executed only by Surendra Mohan, and contained the following reference to the share of Sukumari Devi: "That the first party doth hereby agree and bind himself to convey the property himself and will also get the property duly and legally conveyed in favour of the vendee second party by his mother." In explanation of the delay in bringing the suit it was said that during the interval, a person who was in occupation of the house by the name of Muhammad Yusuf had set up a claim that the property had been sold to him and in pursuance thereof, he com menced two criminal proceedings in succession against M. Majid and his father-in-law Ghulam Mustafa which failed, and then brought a civil suit for an injunction which also failed. There were appeals as well and it was not long after the last of these proceed ings ended in favour of M. Majid that the suit was brought. How-ever, in the meantime Surendra Mohan and his mother had contracted to sell the property to Mrs. Anwara Chowdhury. On the 1st August 1952, they signed a receipt in Calcutta for Rs. 500 received as earnest money. A sale deed was executed, also in Calcutta, on the 26th October 1953. Mrs. Anwara Chowdhury was put into possession of the property on the 12th March 1954. It was averred in the suit that Mrs. Anwara Chowdhury had full information of the earlier contract in favour of M. Majid, and it may be stated at once that this averment was held proved by both the Courts below on the basis of evidence, and that this finding has not been challenged before us: It is common ground that no document expressing on behalf of Sukumari Devi an agreement to sell her share of the property to M. Majid was produced in the case. The principal witness Ghulam Mustafa, who is father-in-law of the plaintiff M. Majid (the latter being abroad at the time of the suit) however said that he met Sukumari Devi in Calcutta once, on which occasion a docu ment Exh. 2 (a), which he produced at a late stage of the case in the course of his evidence, was executed by her in his presence. This document is dated 4th March 1951. Its contents will be mention ed presently, but it is important to reproduce what Ghulam Mustafa said concerning his interview with Sukumari Devi. This was what he said : "I saw Sukumari Devi only once and that was towards the first week of April 1951, and that was at 49, Raj Ballav Saha Lane, Howrah. On that date an application was written for income-tax clearance certificate to the I. T. O., Dacca and she appeared before me in order to sign her name and she signed, and her son also signed and that application I have filed today. (On perusal of the deposition the witness says that he said that he saw Sukumari Devi only once and that was towards first week of March 1951, and not April 1951 . ) This application dated 4th March 1951 was signed by defendants 1 and 2 in my presence at their Howrah residence, Exh. 2 (a) (after objection). With this application, consulted Shishir Babu and he told me that application must be in pres cribed form and so it was not filed." These quotations make it clear that even to Ghulam Mustafa, Sukumari Devi never expressed any intention or promise to trans fer her share of the house in favour of his son-in-law. She merely signed a document, and in the case of a woman who was declared by her son to be subject to his influence in this very matter, that is by no means sufficient to establish her consent to part with her property. As it appeared subsequently, that document was of no worth because it was addressed to the wrong officer. More-over, Shishir Babu (Mr. Sisir Kumar Sen, an Advocate of the Dacca High Court) who appeared as P. W. 3 was never questioned about this particular document, Exh. 2 (a) having been shown to him or that he said that it should be in a prescribed form. This has a bearing upon the value to be placed upon another document Exh. 2 dated the 20th March 1951 which purports to be an application to the proper authority, namely, the Inspecting Assistant Commissioner of Income-tax, Dacca for a certificate under the Transfer of Property (Pakistan) Ordinance, 1947 to enable the applicants to convey the property in dispute to M. Majid Exh. 2 is said to be a duplicate, received by Ghulam Mustafa through the post, of an original which was sent directly to the Inspecting Assistant Commissioner of Income-tax. The envelope in which this document was received was not produced. It was said to be missing. No attempt was made to establish by reference to the office of the Inspecting Assistant Commissioner at Dacca whether such an application had been at all received there. On the other hand, Mr. Sisir Kumar Sen was quite clear that he him-self filed an application for a clearance certificate to enable sale to M. Majid and that that application was signed by Surendra Mohan alone. He went on to say that there being delay in issue of the clearance certificate he and Ghulam Mustafa went together to the Income-tax office where they were told that the application must be signed by both Surendra Mohan and his mother. Having at first said that he did not remember whether any "further appli cation was filed by him" on behalf of the owners "in favour of plaintiff" he clarified in cross-examination that to his knowledge no second application was filed on behalf of Surendra Mohan and Sukumari Devi, and that if such a second application had been filed, it would have come to his knowledge, as he was working for them. This application Exh. 2 commences with the words "the under-signed hereby applies for a certificate ..The name of the applicant is given as Surendra Mohan Banerjee and below that, against a separate head, the name of a co-owner, Sukumari Devi. The name of the intending purchaser is mentioned and the consideration for the sale is described as "Rs. 10,000 in Indian currency." In the space provided for "signature of applicant" there appear the signature of Surendra Mohan Banerjee and below that the signature of Sukumari Devi. The trial Judge had accepted the evidence afforded by Exh. 2 and Exh. 2 (a) supported by the evidence of Ghulam Mustafa, as proof of ratification by Sukumari Devi of her son's contract to sell the property to M. Majid. In the High Court, the learned Judges considered that these documents were not duly proved, the evidence of Ghulam Mustafa being that of a keenly interested person, and lacking the support of his own witness, Mr. Sisir Kumar Sen, who admittedly was in direct contact with Ghulam Mustafa for the greater part of the transaction. Mr. D. C. Bhatta charya for the appellant, M. Majid has strenuously contended that this finding is not correct, and stresses in particular that the genuineness of the signatures of Sukumari Devi was never chal lenged. We consider that there can be no doubt whatsoever about the correctness of the view formed by the learned Judges in the High Court. The sole evidence to prove the signature of Sukumari Devi on these two documents is that of Ghulam Mustafa whose acquaintance with her signature is based solely upon his seeing her writing her name on the application. Exh. 2 (a). Neither Surendra Mohan nor Sukumari Devi took the least interest in this litigation, and neither of them was examined as a witness in the case. It was possible to obtain their evidence on commission, so that direct proof of the genuineness of Sukumari Devi's signature was not beyond the reach of the plaintiff. In these circumstances, since Ghulam Mustafa is very much interest ed in the success of the litigation, his admission as a witness that he showed this application to Mr. Sisir Kumar Sen, and consulted him about its use was, from the plaintiff's point of view, an indication of a valuable piece of corroboration that was available. It is therefore a serious weakness in the plaintiff's case that when Mr. Sisir Kumar Sen appeared in evidence as a witness for the plaintiff, he was asked no question whatsoever about the document Exh. 2 (a). In the circumstances, the learned Judges in the High Court were right not to rely on Ghulam Mustafa's statement regarding the writing and signing of the document Exh. 2 (a). If this document he excluded, then it follows that Ghulam Mustafa cannot be held to have any acquaintance with the signature of Sukumari Devi, and consequently, his statement that her signature appears on the document Exh. 2 is of no value to prove that signature. Here again, Mr. Sisir Kumar Sen's evidence contradicts that of Ghulam Mustafa for to his knowledge, only one application to the Inspecting Income-tax Commissioner was filed on behalf of the vendors and that was filed through him, and bore the signature of Surendra Mohan only, for which reason the Income-tax Department declined to take action upon it. Mr. Sisir Kumar Sen continued to act on behalf of the vendors until about the spring of 1953, when at the vendors' request, he handed over his power-of-attorney to Mrs. Anwara Chowdhury's lawyer. The signature of Sukumari Devi on the application Exh. 2 could easily have been fabricated. She was not herself an appli cant, and need not have signed. Having met Sukumari Devi in person, Ghulam Mustafa could 'very well, have obtained an agreement to sell from her as well but in fact, he was not able to speak of her having said a word to indicate an intention or promise to sell her share. Thus, the claim of the plaintiff that Sukumari Devi had also agreed to convey her share of the property to him is belied b the plaintiff's evidence itself, and we accordingly confirm the find ing of the High Court that the agreement of the 9th February 1951, is effective only in respect of the half share which vested in Surendra Mohan. Since the plaintiff did not challenge the genuineness of the transaction in favour of Mrs. Anwara Chowdhury, on the finding above, the decree which followed could not provide for conveyance of more than Surendra Mohan's half share. Accordingly, the High Court modified the decree which the trial Court had awarded, obliging vendors to convey the entire property to the plaintiff, by directing that the conveyance should be with respect only to the half share of Surendra Mohan, and that the suit should be dismissed as against Sukumari Devi. The full considera tion, namely, Rs. 9,500 had been ordered to be deposited by the plaintiff to the credit of Mrs. Anwara Chowdhury, and the High Court decree modified this direction to confine it to half of that amount. The Subordinate Judge's decree also made provi sion in respect of acquisition of a part of the property by the Government, and had directed that after the conveyance had been registered in the plaintiff's favour, he would be entitled to take the compensation for the compulsorily acquired part. The High Court varied this direction so as to confine the plaintiff's right in the aforesaid compensation to a half share. The High Court added the further direction that the plaintiff could only obtain khas possession of the property to be conveyed to him after there had been partition by metes and bounds. Finally, it was said that "the right, title and interest of the defendant No. 1 (Surendra Mohan) in respect of which the plaintiff is entitled to specific per formance, included the reversionary interest, if any, of the said defendant No. 1 in the said premises". The parties were left to bear their own costs of the appeal. On the finding given above, the appeal by M. Majid neces sarily fails. He can claim no more than what has been allowed to him by the decree of the High Court. In the other appeal by Mrs. Anwara Chowdhury, Mr. Hamidul Haq Chowdhury has presented a two-fold argument. He contended that since by docu ment Exh. 2. it was provided that payment for the house was to be made in Indian currency, and because the earnest money Rs. 500 had in fact been paid in Calcutta, presumably in Indian currency, there was violation of the legal controls over foreign exchange operations which were applicable in Pakistan. The document Exh. 2 has not been accepted as proof, and consequently no stress can be laid upon the proposal to pay the balance of the price, namely, Rs. 9,500 in Indian currency. Moreover, under section 21 of the Foreign Exchange Regulation Act, it is provided. that in case of a contract involving a transaction in foreign exchange, it is to be read as an implied term of the contract that permission for the transaction as required by law would be obtain ed and this section further provides that such permission may be obtained by subsequent application to the proper authorities. Mr. Hamidul Haq Chowdhury invoked the principle that the vendee in such a case should prove that he was ready, able and willing at all times to pay the agreed price, and contended that this required proof from the plaintiff that he was armed with a permission from the State Bank to make the payment in Indian currency, at all material times. The plain provisions o section 21 aforesaid stand in refutation of this contention. The ability of the plaintiff to produce the money necessary to mak e payment of the consideration for the agreed conveyance was not seriously contested in the case, and the point is only raised by Mr. Hamidul Haq Chowdhury as subsidiary to his contention that the contract was void on the ground that its execution involved violation of an existing law. Mr. Hamidul Haq Chowdhury then transferred the argument to the payment of Rs. 500 as earnest money which undoubtedly took place in Calcutta and presumably in Indian currency, and contended that this involved violation of the law regulating transactions by Pakistan citizens in foreign exchange. It is pointed out however on behalf the plaintiff-appel lant that Mrs. Anwara Chowdhury herself appears to have paid the full price of the house in Calcutta and presumably that was in Indian currency. Being in possession, she is in the stronger position. The determination whether either of these payments involved a transaction in foreign exchange requiring the sanction of the appropriate authorities, and whether such sanction had o had not been obtained, involves going into evidence, and in vie of the fact that the law itself, by section 21 enables regularization of such a payment by subsequent permission obtained from the appropriate authorities, we see no point in examining this parti cular contention further and accordingly reject it. Mr. Hamidul Haq Chowdhury's next contention was that as required by section 15 of the Specific Relief Act, even although the plaintiff is, by the High Court decree, to get conveyance of only Surendra Mohan's share, yet in the circumstances he should be required to pay, for the benefit of Mrs. Anwara Chowdhury, the full amount of the agreed price. On a proper reading of section 15 of the Specific Relief Act, it becomes plain that it would have had application if Surendra Mohan had expressly purported to sell the whole property to the plaintiff, making no reference to any co-sharer. Here on the contrary, the agreement expressly says that Surendra Mohan undertakes to "get the property duly and legally conveyed in favour of the vendee second party by his' mother". This makes it clear that he was not entering into an agreement by which he was obliging himself to convey the whole property to the plaintiff. In the circumstances, the rule contained in section 15 of the Specific Relief Act has no application to this case, and the High Court is plainly right in requiring deposit of only one half of Rs. 9,500 for payment to Mrs. Anwara, Chowdhury. A short argument was also put forward by Mr. Hamidul Haq Chowdhury to the effect that there had been delay in suing, but if regard be had to the series of cases which the plaintiff through Ghulam Mustafa was obliged to defend against Mr. Muhammad Yusuf, in the interval, it is clear that in filing his suit within two months of the delivery of possession of the property to Mrs. Anwara Chowdhury the plaintiff acted with reasonable speed in coming to Court. In these circumstances, we find that the decision of the High Court is correct in all respects, and we accordingly dismiss both, appeals, leaving the parties to bear their own costs. A. H. Appeals dismissed.