P L D 1963 Dacca 816 (PLP)

This appeal arises out of a suit or for specific performance of a contract. The case of the plaintiffs in short is this:‑On the 16th Chaitra, 1357 B. S. defendants 1 to 3 contracted to sell the disputed land, which belonged to them to plaintiffs for Rs. 1,

600. They executed a bainapatra on getting the sum of Rs. 300 from the plaintiffs and put them in possession of the disputed land. According to the terms of the contract, they were to execute the kabala on taking permission from the Collector and on getting Rs. 300 more from the plaintiffs. But permission was not taken from the Collector and the kabala was not executed although plaintiffs were ready to pay the balance. On the other hand defendants 1 to 3 executed a kabala regarding the suit land in favour of defendant No. 4 who made the purchase with full knowledge of the contract between plaintiffs and defendants 1 and

3. Hence the present suit for specific performance of the contract.

2. Defendant No. 4 only filed a written statement. But in the end, defendant No. 4 compromised the suit with the plaintiffs on the date of peremptory hearing.

3. The learned Munsif instead of passing a decree on the basis of the compromised petition dismissed the suit holding that there could not be a decree for specific performance of the contract on the following grounds :‑(1) The contract was a contingent one; and (2) The plaintiffs 4 and 5 were not parties to the bainapatra; and (3) The plaintiffs were not ready with the balance sum of Rs. 1,300.

4. On appeal the learned Subordinate Judge reversed the decision of the learned Munsif holding that the contract was not a contingent one, that in the absence of a direc tion to deposit the balance consideration money of Rs. 1,300, it could not be said that plaintiffs were not ready to deposit this amount, and that in view of the solenama filed by defen dant No. 4, it was not for him to challenge the contract on the ground that permission of the Collector was not obtained. The suit was decreed by the learned Subordinate Judge in terms of the compromise against defendant No. 4 and ex parte against other defendants, and all the defendants were directed to execute a kabala in favour of the plaintiffs. Hence this appeal at the instance of defendant No. 4 only.

5. Mr. Debesh Chandra Bhattacharjee, the learned Advocate for the appellant has advanced the following points in support of the appeal:‑(t) The contract being a contingent one, it was not enforce-able in the absence of the happening of the contingency ; (2) The decree for specific performance of the contract was bad in law as the agreement was bad for uncertainty and was not a concluded one ; (3) There could not be a decree for specific performance of the contract, as the plaintiffs were not ready to perform their part of the contract.

6. Mr. Suresh Chandra Basu, the learned Advocate for respondents has contended in reply that as defendant No. 4 had filed a solenama and as the decree was passed in terms of the solenama against him, he cannot challenge the decree and that he also cannot challenge the contract as illegal. It has been further contended by him that the contract was not a contingent one, that it was a concluded one, and that it was not bad for uncertainty.

7. It is not challenged that defendant No. 4 filed a solenama. As the learned Subordinate Judge has directed for passing a decree against him in terms of the solenama in my humble opinion, defendant No. 4 cannot challenge the com promise decree. The compromise decree stands, and while it stands, it operates us an estoppel between the parties. I am supported in my views by the case of Cowasji Temulji v. Kisandas Tricumdas (11 I C 984) and Nicholas v. Aspher and another (I L R 24 Ca1. 216). In the case reported in 11 I C 984, it has been laid down that a compromise decree operates as an estoppel between the parties and their representatives. In the case reported in 24 Cal. 216, it has been held that a consent decree is just as binding on the parties to the proceeding as a decree after a contentious trial.

8. It appears that before the learned Subordinate Judge it was conceded on behalf of defendant No. 4 that there could be a decree in terms of the compromise against him. The following observation was made by the learned Subordinate Judge: "It has been ascertained from the learned Pleader for the respondent whether his client sticks to his solenama filed in the lower Court. The learned Pleader gave us to understand that his client still sticks to the solenama." In the memo randum of appeal, there is no challenge to this observation of the learned Subordinate Judge. After taking the position in the lower appellate Court that there could be a decree against defendant No. 4 in terms of the compromise, he cannot take a new position contrary to that in the first appellate Court and challenge the compromise decree in this Court.

9. The learned Advocate for appellant has contended that though there has been a consent decree against the appellant, he can challenge it, as there has been an ex parse decree against defendants 1 to 3 and as the decree has con travened the provisions of sections 5 and 6 of the East Bengal Transfer of Agricultural Land Act, 1951 (East Bengal Act XXXIII of 1951). I cannot accept this contention, because defendants 1 to 3 have not preferred any appeal against the ex parse decree passed against them. It is not for defendant No. 4 to challenge it on behalf of defendants Nos. 1 to

3. The question whether the decree has contravened the provisions of sections 5 and 6 of the East Bengal Transfer of Agricultural Land Act, shall be discussed later.

10. In view of the above observations it is not necessary to enter into the question relating to the validity of the contract. But as the question has been raised, I should deal with this matter also.

11. As to the first point, the contention of the learned Advocate for appellant is that according to the terms of the agreement, the execution of the document was dependent on the permission from the Collector and that as permission was not obtained, the contract cannot be enforced. Section 31 of the Contract Act which defines contingent contract is as follows :‑ "A contingent contract' is a contract to do or not to do something, if some event, collateral to such contract, does or does not happen." A contingent contract is not enforceable till the event on which it depends has occurred. But the uncertain event on the happening of which the contract is conditional must be collateral to the contract. This means that it must not form part of the consideration of the contract but must be independent of it. The illustration to section 31 of the Contract Act is as follows:‑ "A contracts to pay B Rs. 10,000 if B's house is burnt. This is a contingent contract." The consideration of the promise to pay Rs. 10,000 is the payment by B, but the contract to pay Rs. 10,000 will be enforceable only on the happening of an uncertain event, namely on B's house being burnt down, an event which is independent of the consideration. In the present case, the term in the deed of agreement is to the effect that on registration of the document after taking permission, the defendants would take the balance D Rs. 1,300 from the plaintiffs and that plaintiffs would pay this amount at that time. So the condition to take permission is not collateral to the contract, but forms part of the considera tion of the contract. In the present case, the contract cannot be regarded as a contingent one.

12. The learned Advocate for appellant has referred to the case of Kali Dassee and others v. Nobokuwari Dassee and others (36 I C 655) and Dalsukh M. Panchol v. The Guarantee Life and Employment Insurance Company Limited and others (52 C W N 472), in support of the contention that the contract is a contingent one, as permission was to be taken from the Collector before the registration of the document. But the above case are dis tinguishable from the present case. In the case reported in 36 I C 655, after the contract for the sale of cer tain houses was made, the parties entered into a verbal agreement whereby the vendors who were Hindu widows, were to apply for Letters of Administration and obtain the sanction of the District Judge to the intended alienation under section 90 of the Probate and Administration Act. On the application being made, the District Judge granted Letters of Administration but declined to sanction the sale at the agreed price. He sanctioned the sale at a higher price to some other persons who purchased the property with notice of the contract for sale. Thereupon the intending purchasers brought a suit for specific performance of the contract. It was held that they were not entitled to the specific performance of the contract as by the subsequent oral agreement bet ween the parties, the original contract was transformed into a contingent one dependent upon the consent of the Court being obtained to the sale and as the consent of the Court could not be obtained. But in the present case the condition to register the document on taking permission from the Collector was not collateral to the contract.

13. In the case reported in 52 C W N 472 a property was under attachment by two Courts in execution of two money decrees and had been ordered to be sold by a third Court in execution of mortgage decrees. To avert this sale, the owners contracted to sell the property to the plaintiff at a certain price subject to Court's approval. An application by the vendor under Order XXI, rule 83 of the Code of Civil Pro cedure to the Court executing the mortgage decrees having been rejected, they sold the property to the defendants of that case. The plaintiffs sued for specific performance of the contract. It was held that the term "subject to the approval of the Court" being an essential term of the contract, the contract was a contingent one and that the application for approval having been rejected by the Court, the contract fell to the ground. In that case the term "subject to the approval of the Court" was essential as the property was under attach ment by various Courts and without such approval the title to the property would not be safe at all. But in the present case, permission of the Collector was not essential for the sale, as the contract was to sell 1‑84 acres of land which is less than ten bighas. There is no evidence of sale of any land by defendants 1 to 3 prior to the contract. According to section 4, of the East Bengal Transfer of Agricultural Land Ordinance (East Bengal Ordinance XXI of 1948), which was in opera tion at the time of the contract in April 1951, and section 4, of the East Bengal Transfer of Agricultural Land Act 1951 (East Bengal Act XXXIII of 1951) which has been in force from the 1st of October 1951, permission of the Collector is required with regard to transfer exceeding ten bighas. The term in the agreement relating to permission from the Collector was a form alone and not essential as in the case reported in 52 C W N 472.

14. In the present case, the learned Subordinate Judge has passed the decree with regard to 134 acres of land on the basis of the solenama filed by the plaintiffs and defendant No.

4. The solenama has been directed to form a part of the decree. It is not with regard to the total land of the deed of agreement and the amount of consideration in the solenama is also not the same amount as mentioned in the deed of agree ment. The solenama is independent of the deed of agreement. For all the reasons stated above, it cannot be held that the compromise decree has contravened the provisions of sections 5 and 6 of the East Bengal Transfer of Agricultural Land Act, 1951.

15. The second point that the agreement is bad for uncertainty has no substance. In the deed of agreement, it is stated that if permission would not be available, what would be decided by the parties, would be done. The learned Advo cate for the appellant has contended that as it was abso lutely uncertain what would be done in case permission was not available, the agreement is void for uncertainty. The term for obtaining permission from the Collector was not essential as the kabala could be registered without such permis sion in the facts of the present case. There is also no evidence that defendants 1 to 3 prayed for permission to register the kabala. The question for acting according to the decision of all in case permission was not obtained, would not arise as prayer for permission was not made by defendants 1 to

3. Defendants 1 to 3 cannot be allowed to take advantage of their own default. Permission or no permission the kabala could be registered, if they so intended.

16. The contention that the contract was not a concluded one cannot be accepted. The earnest money of Rs. 300 was already paid. The terms are their for execution and registra tion of the kabala and for taking the balance consideration money of Rs. 1,300 after registration.

17. The contention that there cannot be any decree as plaintiffs have not performed their part of the contract also cannot be accepted. The learned Advocate for appellant has contended that it was necessary for the plaintiffs to be in continuous willingness and readiness from the date of the con tract to the time of the hearing of the suit to perform their part of the contract, and that as the application filed by the plaintiff on 22‑4‑1953 showed that at a certain stage during the pendency of the suit plaintiffs were not ready with the requisite sum of Rs. 1,300, the suit was liable to dismissal. In support f this contention, reference has been made to the cases of Ardeshir H. Mama v. Flora Sasson (32 C W N 953) and Srimati Parul Bala Ghosh v. Soraj Kumar Goswami and others (82 C L J 273). In the case reported in 32 C W N 953, the suit was originally for specific performance of the contract with a claim for compensation additional or alternative, the plaint averring a continuous readiness on the part of the plaintiff to perform it. After the suit had been pending for four years, and sometime before the trial, the plaintiff notified the defendant that he abandoned the claim, for specific performance and would only claim damages s he found it inconvenient any longer to retain in readiness for completion of the purchase, the money payable under the contract. It was held that as the plaintiff was not in readiness with the money payable under the contract, there could not be any decree for specific performance of the contract or for damages. In the case reported in 82 C L J 27 3 also it has been laid down that the plaintiff in a suit for specific performance has to allege, and if the fact is traversed, he is required to prove a continuous readiness and willingness from the date of the contract to the time of the hearing of the suit, to perform the contract on his part. There is no dispute about the principle. In the present case the compromise petition shows that plaintiffs have already deposited Rs.

500. By the compromise they were allowed to deposit the sum of Rs. 400 by Aswin 1364 B. S. corresponding to September 1957. It is not the appellant's case that the sum of Rs. 400 has not been deposited.

18. The learned Munsif referred to the petition dated 22‑4‑53 filed by the plaintiffs and held that plaintiffs were not ready to deposit the sum of Rs. 1,

300. The trial Court misconceived that petition. It appears on 25‑3‑53, the learned Munsif passed injunction order against the defendants and made it conditional on deposit of Rs. 500 in cash and Rs. 800 in personal security within a month from that date. On 22‑4‑53, plaintiffs deposited Rs. 300 in cash and filed this application for time to deposit the balance of Rs. 200 a am informed been deposited. In that petition the learned Munsif allowed extension of time for twenty-one days for deposit of the sum of Rs.

200. Security bond of Rs. 500 was filed on 24‑4‑

53. Overlooking all these facts, the earned Munsif held on the basis of that application that plain tiffs were not ready to deposit the sum of Rs. 1,

300. For the fact that time was prayed for depositing the balance sum of Rs. 200 it cannot be said that plaintiffs were not ready to perform their part of the contract. In the facts of the present case it cannot be held that the plaintiffs were not in readiness to pay the balance amount of consideration.

19. The learned Munsif also held that there could not be any decree for specific performance of the contract as plaintiff's 4 and 5 were not parties to the agreement. Although not parties to the agreement, they were plaintiffs. The learned Subordinate Judge held that that was a matter for consideration among plaintiffs this view of the learned Subordinate Judge is quite correct.

20. There is no ground to interfere with the decision of the learned Subordinate Judge. In the result the appeal is dismissed with costs. The judg ment and decree passed by the learned Subordinate Judge are affirmed. S. B./A. H. Appeal dismissed.