1. This is a defendant's second appeal in a suit for specific performance of a contract dated 8th Dec. 1952, for reconveyance of a house on payment, of such sum as the court may determine.
2. The trial court decreed the suit against the first defendant Har Pratap Singh, the first appellant in this court, directing him to execute and get registered a sale-deed of the property in suit in favour of the plaintiffs and defendants Nos. 3 to 13, on payment of Rs. 1324/- by the plaintiffs to him at the time of the execution and the registration of the sale-deed, the expenses thereof being borne by the plaintiffs. The plaintiffs were also awarded the costs incurred by them against the first defendant who was directed to bear his own costs. The first defendant was further directed to pay the amount of court-fees payable on the plaint, for the plaintiffs had been permitted to sue in forma pauperis. No time was fixed for payment of the amount of Rs. 1324/- by the plaintiffs or for the execution of the sale-deed. It was ordered that if the defendant No. 1 tailed to execute and register the sale-deed, the decree will be carries into effect by the court. The copy of the decree was ordered to be forwarded to the Collector, Allahabad, under Order 33, Rules 10 and 14 of the CPC. The first defendant Har Pratap Singh and the second defendant Girdhar Singh appealed to the district the district court. The appeal was partly allowed and the decree of the trial court was modified by ordering that the plaintiff-respondents shall pay the sum of Rs. 5,484/- instead of Rs. 1324/- to the defendant-appellant No. 1 at the time of the execution and registration of the sale-deed by him; and that plaintiff-respondents shall be entitled to ¾th of the court-fees payable in the trial court, the remaining amount being made payable by the plaintiffs. The first two defendants have appealed to this court from that decree and have prayed that the suit may be dismissed with costs throughout.
3. According to the plaint, the first plaintiff was born on 10th April, 1948, according to the birth register but in his school, the date of birth was recorded as 13th March, 1949. His age was about 19 years when the suit was instituted by presentation of the application for leave to sue in forma pauperis on the 10th August, 1959. The date of birth of the second plaintiff was 10th October, 1949, according to the birth register but it was entered as 1st July, 1951, in his school. His age was thus less than 18 years and he, accordingly, sued throughout the first plaintiff as his next friend. The first plaintiff the uncle of the second plaintiff, who is the son of Gaya Prasad, first plaintiff's elder brother. The first plaintiff Satya Narain was the youngest among seven brothers. Their father Mahavir Prasad is the third defendant. The eldest among the seven sons of Mahavir Prasad, Sukhdeo Prasad was impleaded as defendant No. 4, and the others, impleaded in order of their age, were Gaya Prasad as defendant No. 5, Hira Lal as defendant No. 6, Jawahar Lal as defendant No. 7, Nand Lal as defendant No. 8 and Gopal Lal alias Jhabhu Lal as defendant No. 9 Narbada Prasad son of Sukhdeo Prasad was impleaded as defendant No. 10, Gaya Prasad's first son Kallu alias Gopal Das being the second plaintiff, his second son Sudama, then a minor aged about eight years, was impleaded as defendant No. 11; Jawahar Lal's minor son Bhola, then aged about six years, was impleaded as defendant No. 12, and Nand Lal's minor son Bablu, then aged about five years, was impleaded as defendant No. 13.
4. The following was the plaintiffs' case; Charan was the father of Mahavir Prasad, the defendant No. 3. The house, for the reconveyance of which the suit was filed, was the Hindu Joint family property of Kali Charan and Mahavir Prasad, and on the death of Kali Charan, it descended to Mahavir Prasad who became Karta of the Hindu Joint Family which included the plaintiffs. On 22nd June, 1948 the said Kali Charan, his son Mahavir Prasad defendant No. 3 for self and as the Karta of his family consisting of Hira Lal, Jawahar Lal, Nand Lal and Jhabhu Lal alias Gopal, minors, and Sukhdeo Prasad and Gaya Prasad who had attained majority by then, sold the house in favour of the second defendant Girdhar Singh for Rs. 3,000/- for legal necessity and payment of antecedent debts, The same day, an agreement of tenancy of the house on payment of Rs. 22-8 was also executed in favour of the second defendant Girdhar Singh, and Girdhar Singh in his turn executed an agreement to reconvey the house to the said executants of the sale deed within 10 years. It was pleaded that the said agreement was in favour of the first plaintiff also as Mahavir Prasad and Gaya Prasad had obtained the agreement as his representatives. Kalicharan died thereafter and when a period of 51/2 years had gone by since that agreement dated 22nd June, 1948, Mahavir Prasad for self and as Karta of the family consisting of Jawahar Lal, Nand Lal and Jhabhu Lal alias Gopal Lal, and the first plaintiff Satya Narain, who were minors at that time; along with Sukhdeo Prasad for self and as the father and guardian of Narbada Prasad (minor); Gaya Prasad for self and as the father and natural guardian of the second plaintiff Kallu alias Gopal Lal, and Hira Lal, executed on 8th Dec., 1952, along with the second defendant Girdhar Singh, a sale-deed of the house in favour of the first defendant Har Pratap Singh for a consideration of Rs. 8,000/-. The same day an agreement of tenancy on payment of Rs. 60/- per month was executed in favour of Har Pratap Singh, by the sellers; and Har Pratap Singh, the first defendant, in his turn executed an agreement of reconveyance in favour of the sellers, agreeing to re-sell the house to them within 3 years. The agreement was in favour of the plaintiffs also as Mahavir Prasad and Gaya Prasad had acted as the representatives of the two plaintiffs. The rent amounting to Rs. 300/- for the period of 8th Dec., 1952 to 7th May, 1953 at the rate of Rs. 60/- per month was said to have been paid to the first defendant and decrees for recovery of the rent for subsequent period of 8th May, 1953 to 20th Oct., 1956, were said to have been obtained by Har Pratap Singh. It was then alleged that on 20th Oct., 1956, he along with the second defendant, and others forcibly demolished and destroyed the entire house, which was rendered unfit for habitation. It was said that the sister of the second plaintiff was injured in the said incident and she was even insulted and the chain on her neck was forcibly pulled. The first plaintiff's sister and mother were also alleged to have been hurt and insulted and his brothers were alleged to have been injured by lathis and the goods in the house were alleged to have been broken and destroyed and thrown away, as a result of which the plaintiffs and the members of their family lay on the road. The incident led to criminal proceedings and the case was committed to Sessions, The first defendant and his 12 associates were convicted and sentenced to imprisonment and fine. The first plaintiff's sister filed, a suit for damages for insult and injury against the defendant Nos. 1 and 2 and their relatives and a decree of Rs. 1,000/- was passed in her favour which was confirmed by the Appellate Court. The other ladies were also said to have filed other suits for damages but the same were said to be pending in the High Court at that time. It was then alleged that the first defendant was not entitled to any rent because of the destruction of the house since 20th Oct., 1956. With regard to the agreed consideration of Rs. 8,000/- for the agreement of reconveyance, it was alleged that there was no question of payment of it at all because of the destruction of the property by the first defendant and the expenditure on its reconstruction, repairs etc., which the members of the plaintiffs' family had to obtain by begging, and the financial assistance rendered by certain well-known political leaders, which expenditure was in no case less than Rupees 8,000/-. It was pleaded that the first defendant had thus forfeited the right to receive the amount of Rs. 8,000.which must be deemed to have been adjusted in the manner aforesaid.
5. It was then contended that the agreement dated 8th Dec., 1952 executed by the first defendant, was in favour of the plaintiffs' joint family, although it included only the names of the Kartas and that the agreement enures for the benefit of the plaintiffs as well. Mahavir Prasad and Gaya Prasad were the Kartas of the joint family and they executed the agreement dated 8th Dec., 1952, in that capacity for and on behalf of the plaintiffs and for their benefit and the names of the plaintiffs were specifically shown in the sale-deed dated 8th Dec., 1952. The plaint proceeds on to state that the plaintiffs were filing the suit acknowledging the three documents executed that day, for the enforcement of the contract of sale against the first defendant, under the agreement dated 8th Dec., 1952 in their favour and in favour of the members of their family, without payment of Rs. 8,000/- or any rent, or on payment of Rs. 1,000/- only as the value of the land, or on payment of such amount as may be determined by the Court, in view of the facts, law and justice. It was also said that the plaintiffs were ready to pay the amount of consideration which the Court may determine to be payable by them under the agreement dated 8th Dec., 1952. The plaint then proceeds on to allege that when the first plaintiff attained majority he went along with some respectable persons to the first defendant and demanded the execution of the sale-deed on the basis of the agreement dated 8th Dec., 1952, but he refused. It is then alleged that after the sale-deed of 1953, when the first plaintiffs maternal uncle came to know that the only residential house of the family had been sold and the property was going out of the family, he came and made inquiries and the first plaintiff's education etc. were entrusted to other relatives and after the destruction of the house on 20th Oct., 1958, the members of the family became property-leas and eked out their living by begging, and the plaintiffs' father and uncle were declared to be paupers in different suits. The bar of limitation was sought to be avoided by pleading that the plaintiffs were minors when the 3 years' period fixed by the agreement dated 8th Dec., 1952, expired on 8th Dec., 1953, and since the first plaintiff was still less than 21 years of age, and the second plaintiff was still below 18 years of age, the suit filed by them, was within limitation. The suit was a instituted in forma pauperis as the plaintiffs alleged that they had no means to pay the Court fees of Rs. 957.50 payable on the plaint.
6. The sale of the house on 22nd June, 1948, in favour of the second defendant Girdhar Singh and on 8th Dec., 1952, in favour of the first defendant Har Pratap Singh and the execution of the agreement of tenancy for 11 months on payment of Rs. 60/- per month as rent and the agreement to reconvey the property within 3 years by the first defendant, were admitted. The rest of the plaint allegations were denied. It was asserted that the criminal case resulted in the acquittal of the defendants on appeal. The fact of the decree in favour of Maya Devi was admitted but it was asserted that the suit filed by the other women Bhutto and Gulabo Devi, was dismissed. The plaintiffs' status and rights as members of the family were admitted but their claim that they were or could be regarded the owners of the house; was specifically denied. The allegation about the demand for execution of the sale deed was specifically denied as false. It was pleaded that the value of the house was not less than Rs. 20,000/- or Rs. 25,000/- and that the plaintiffs had no cause of action and were not entitled to any relief. The antecedent facts leading up to the sale made on 8th Dec., 1952, in favour of the first defendant were then pleaded and it was stated that the sale was made for Rs. 8,000/- for payment of antecedent debts and legal necessity. The execution of the agreement to reconvey the house was specifically admitted but it was stated that the period within which it could be enforced had long since expired and the plaintiffs or the defendants Nos. 3 to 13 had no rights left thereunder. It was said that the plaintiffs and the defendants Nos. 3 to 13 belonged to the same family but lived separately and had no right in the house in suit. Mahavir Prasad, Sukhdeo Prasad, Gaya Prasad and Hira Lal were said to have been taken as tenants of the house on 8th Dec., 1952, payment of Rs. 60/- per month as rent and that their failure to pay the rent led to suits for ejectment, arrears of rent etc., and were decreed. The house was in a dangerous condition and the Allahabad Municipality served a notice on the first defendant and on the tenant to repair the house and the first defendant thereupon demolished a wall which was cracked in order to repair it which led to a false report by Mahabir Prasad and Sukhdeo, and in the criminal case the report was found to be false and the first defendant and his labourers were acquitted. The suit had been filed to harass the first defendant and to prevent the execution of decree for ejectment. The real plaintiffs were alleged to be Mahabir Prasad, Sukhdeo Prasad, Gaya Prasad and Hira Lal and their object was to dishonestly obstruct the decree for ejectment and arrears of rent against them. The bars of estoppel, waiver, limitation and res judicata were also pleaded.
7. The following were the issues framed by the trial Court:
(1) Was the agreement dated 8-12-52 executed by the defendant No. 1 for the benefit of the plaintiff?
(2) Was the property in suit joint property of the plaintiffs and defendants Nos. 3 to 13?
(3) Were the deeds executed on 8-12-52 on behalf of and for the benefit of the plaintiffs?
(4) Were the plaintiffs the owners of the house in suit?
(5) Whether the plaintiffs or their guardians reconstructed the house in suit. If so, to what effect?
(6) Whether the decree in Suit No. 840 of 1954 is not binding on the plaintiffs?
(7) Whether the plaintiffs have a subsisting cause of action?
(8) Whether the suit is barred by estoppel and waiver?
(9) Whether the suit is within time?
(10) Whether the suit is barred by principles of res judicata?
8. The trial Court took up for consideration issues Nos. 1 to 4 together. It held on issue No. 2 that the property in suit is the joint family property of the plaintiffs and defendants Nos. 3 to 13; on issue No. 3 that the sale-deed dated the 8th Dec., 1952 was obtained by the first defendant from the plaintiffs respective fathers, acting for themselves and as Managers of the joint family and Kartas of their minor sons including the present plaintiffs; and on issue No. 4 that the plaintiffs also were the owners of the house up to the date of the sale-deed; and on issue No. 1 that all the three deeds of 8th Dec., 1952 were executed either on behalf of or in favour of the plaintiffs and their respective fathers, grandfathers and brothers and were obviously for the benefit of the plaintiffs, who were as much bound by the previous and the present transactions as the other major and minor members of their family. The trial Court then took up for consideration issues Nos. 9 and 9 together and held on issue No. 7 that the plaintiffs did have a subsisting right of suit and a subsisting cause of action for the same, when they instituted it and that it was instituted within time. On issues Nos. 6, 8 and 10, the trial Court observed that these issues were not pressed by the learned counsel for the first defendant at the time of argument, and proceeded to hold that the decree in Suit No. 840 of 1954 which was for ejectment did not have the effect of res judicata and did not affect the plaintiffs' right, who are not parties to it, of enforcing the agreement of sale dated 8th Dec., 1952 and that the suit for specific performance was not barred by estoppel. waiver or res judicata. On issue No. 5, the trial Court held that the whole house was pulled down by the first defendant and it was not reconstructed him but was re-constructed by the plaintiffs and their guardians at their own expense. As to the effect of the said finding the trial Court held that the first defendant was entitled to get Rs. 324/- as arrears of rent, and Rs. 1,000/- towards the value of the site but was not entitled to the value of the house which was put at Rs. 7,000/- and was found to have been re-constructed by the plaintiffs or their guardians at their own expense. In the result the trial Court decreed the suit for specific performance of the agreement dated 8th Dec., 1952 against the first defendant in the terms already set out in the opening part of this judgement. As also noticed earlier the lower Appellate Court increased the amount payable by the plaintiff-respondents to the defendant-appellant No. 1 from Rs. 1,324/- to Rs. 5,484/- and reduced the costs awarded to ¾th of those incurred by the plaintiff-respondents and also the amount of Court-fees recoverable from the first defendant appellant to ¾th of that payable in the trial Court by the plaintiff-respondent.
9. Mr. B.L Yadav, learned counsel for the appellants urged two basic points: (1) that specific performance of the contract could not be enforced in favour of the plaintiffs, and not at all in favour of defendants Nos. 3 to 13 inasmuch as they had failed to aver and prove that they had performed or had always been ready and willing to perform the essential terms of the contract which were to be performed by them; and (2) that the finding of the two Courts below that the suit was not barred by time in view of the absence of a Karta in management of the joint family property, was erroneous in law in face of the other finding that the property in suit was joint family property and was obviously in possession of the joint family including its Karta, though as tenants thereof.
10. The first point raised by Mr. Yadav is based on the provisions of Section 16 of the Specific Relief Act, 1963 which runs as under:
“16. Specific performance of a contract cannot be enforced in favour of a person—
(a) who would not be entitled to recover compensation for its breach; or
(b) who has become incapable of performing, or violates any essential term of, the contract that on his part remains to be performed, or acts in fraud of the contract, or wilfully acts at variance with, or in subversion of, the relation intended to be established by the contract; or
(c) who fails to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract which ere to be performed by him, other than terms the performance of which has been prevented or waived ‘by the defendant.
Explanation.- For the purposes of cl. (c),—
(i) where a contract involves the payment of money, it is not essential for the plaintiff to actually tender to the defendant or to deposit in Court any money except when so directed by the Court;
(ii) the plaintiff must aver performance of, or readiness and willingness to perform, the contract according to its true construction.”
11. Learned counsel for the appellants urged that everything apart, the plaintiffs had no means to pay the amount payable by them when they filed the suit or at any time before that, and, therefore, it could not be said that they had the capacity to perform the essential term of the contract to be performed by them on the date of the suit or at any time before or thereafter, and the suit was accordingly liable to be dismissed on this ground alone, in view of the provisions of Section 16 of the Specific Relief Act.
12. Dr. Gyan Prakash, appearing for the plaintiff-respondents urged that the plaint does contain a clear averment of the plaintiff-respondents' readiness and willingness to perform their part of the contract, namely, to pay the amount which may be found by the Court to be payable by them in spite of their contention that nothing was payable, in view of the conduct of the first defendant in destroying the property in suit. After the case had been argued at some length and the points raised and fully discussed, Dr. Gyan Prakash even took time to apply for the amendment of the plaint, but he then filed an application that the plaintiff has been advised not to amend the plaint at this stage. As to the capacity of the plaintiffs to perform their part of the contract by paying the amount of money determined by the Court to be payable by them under the contract, Dr. Gyan Prakash urged that under cl. (i) of the Explanation to S. 16, for purposes of cl. (c) of that Section, where a contract involves the payment of money, it is not essential far the plaintiff to actually tender to the defendant or to deposit in Court any money except when so directed by the Court, and proceeded to urge, on the basis of cl. (ii) of the Explanation, that the readiness and willingness to perform the contract has to be according to its true construction, that is to say, as finally construed by the Court. He urged that the capacity of the plaintiff-respondents to pay the amount fixed by the Court to be payable by them has to be judged with reference to the time which the Court fixes for its payment. According to Dr. Gyan Prakash, the amount found payable by the plaintiff-respondents to the first defendant under the contract was Rs. 1,324/- only against which the plaintiffs were held entitled to recover their costs from the first defendant, the Court-fees payable by the plaintiff-respondents being also recoverable from him, and it cannot be said that the plaintiff-respondents were not capable of paying the amount fixed by the decree of the trial Court. They could not demonstrate their capacity to do so by depositing the amount in Court simply because the trial Court did not also fix any time for doing so, nor by paying it to the first defendant at the time of the execution of the sale-deed because the trial Court did not also fix any time for doing so. With regard to the capacity of paying the amount fixed by the lower Appellate Court also the same contention has been advanced by Dr. Gyan Prakash, and it was urged that it cannot be said that the plaintiffs did not have the capacity to perform their part of the contract, i.e, to pay the amount they were required to pay, if any, to the first defendant, on a true construction of the contract as finally interpreted by the Court and within the time fixed by it
13. Having considered the matter I am of opinion that the contention raised by Mr. B.L Yadav on behalf of defendant-appellants on this point must prevail. The first plaintiff had just attained majority when the suit was filed. The second plaintiff was a minor. Neither of them had any means other than those disclosed by them in their application to sue in forma pauperis and these means were not sufficient even for payment of the Court-fees amounting to Rs. 957-50 P. on the plaint; and this situation must be presumed to have continued up to the date of the decree of the trial Court for the plaintiffs were allowed to continue to prosecute the suit in forma pauperis till the very end. It cannot, therefore, be said that they had the necessary means to pay the sale consideration. Apart from the fact that cl. (b) of Section 16 of the Specific Relief Act specifically forbids enforcement of specific performance of a contract in favour of a person “who has become incapable of performing …. any essential term of the contract that on his part remains to be performed ……….” the readiness and willingness to perform the essential term of a contract to be performed by him, and which is required to be averred and proved under cl. (c) of S. 16, has to be a real readiness and willingness, backed by the capacity to do so. A person who is incapable of performing the essential term of a contract to be performed by him cannot be said to be ready or willing to perform it howsoever much he may say that he is ready and willing to perform it. The suit must in this view of the matter fail and ought to have been dismissed. I need not cite the cases referred to by Mr. Yadav, learned counsel for the defendant-appellants, for it is well-settled that the provisions of Section 16 of the Specific Relief Act are mandatory. The case of International Contractors Ltd. v. Prasanta Kumar, (AIR 1962 SC 77) cited by Dr. Gyan Prakash does not have the remotest connection with the facts or the point involved in the present case.
14. Dr. Gyan Prakash, contended that the plea was not raised in the written statement of the defendant-appellants and the plea which was not so raised could not be urged for the first time before the second Appellate Court.
15. The allegation coming nearest to the requirement of Section 16(c) of the Specific Relief Act is contained in para 21 of the plaint. The allegation has specifically been denied in para 21 of the written statement. There is, however, no additional plea in the written statement to the effect that the plaintiffs were not entitled to specific performance of the contract on the ground that they were incapable of performing the essential term of the agreement to be performed by them, namely, the payment of the consideration for the sale and that the readiness and willingness shown by them in para 21 of the plaint did not satisfy the requirements of Section 16(c) of the Specific Relief Act and that at any rate the plaintiff had no means to pay even the Court-fees the allegation that they were ready and willing, or their offer, to pay the amount found payable by them, was false on its face.
16. The difficulty in this case, however, lies in the fact that an analysis of the allegations in the plaint would show that the plaintiff-respondents' case basically was that in view of the wrongful conduct of the defendant-appellants, the plaintiff-respondents and defendant-respondents Nos. 3 to 13 were entitled to have a reconveyance executed by the defendant-appellants without requiring the plaintiff-respondents to pay anything. Indeed the allegations were that after the incident of 20th Oct., 1955 the condition of the respondents family was such that each one of them had become a pauper and somehow managed to live by beggary (sic) (begging?). Even the amount said to have been spent on the re-construction of the house was alleged to have been obtained by beggary (sic) (begging?). Evan in para 21 of the plaint, relied upon by Dr. Gyan Prakash to show that the plaintiffs did offer that they were ready and willing to perform their part of the contract, states that for the purposes of the enforcement of their right to specific performance of the contract for which the suit was being filed, the plaintiffs accepted the three deeds executed on 8th Dec., 1952, but the plaintiffs were entitled to re-conveyance in their favour and in favour of the other members of the family without payment of the sum of Rs. 8,000/- or any amount, or in the alternative on payment of Rs. 1,000/- only, which was the approximate price of the site, and, still further in the alternative, on payment of such amount as the Court may find to be payable under the agreement dated 8th Dec., 1952 in view of the facts, law and justice, and that the plaintiffs were prepared to pay that amount which the Court may find to be payable under the agreement dated 8th Dec., 1952 keeping these facts in view. It was at the end added that the said agreement was for the benefit of the minors and the members of the family as it was in respect of and for preservation of their only family property worth about Rs. 20,000/- to 25,000/-. It is difficult to say that the said averments contained in para 21 of the plaint, satisfy the requirements of Section 16(c) of the Specific Relief Act. It has not been averred that the plaintiffs had always been ready and willing to perform the essential terms of the contract. In fact the first plaintiff was a minor immediately before the filing of the suit, and the second plaintiff was a minor even when the suit was filed. They could not, therefore, have been “always ready and willing to perform the essential term of the contract” to be performed by them. Indeed the other allegation in the plaint is that all the members of the plaintiffs' family including themselves had been reduced to pauperism and were eking out their living by begging. This apart, even the esptession of readiness to pay the amount determined by the Court to be payable by the plaintiffs under the agreement dated 8th Dec., 1952, does not show that they were really willing to do so. They had expressed readiness to pay only as the last alternative. Their first and the primary case was that they are not liable to pay anything; the second alternative case was that they were at worst liable to pay Rs. 1,000/- and it was only in the last alternative that they said that they were ready to pay the amount fixed by the Court to be payable by them. It is impossible to read any willingness on the part of the plaintiffs to pay the amount payable by them under the agreement dated 8th Dec., 1952, according to its true construction. Add to this the facts pleaded in the plaint itself, which was a part of the application for permission to sue in forma pauperis, that the only things possessed by the first plaintiff were worth Rs. 78/- and those possessed by the second plaintiff were worth Rs. 75.and that they had no means whatsoever for even paying Rs. 957-50P. which was the amount of Court-fees payable on the plaint. Such a plaint was on its very face liable to be rejected under O. 7, R. 11 of the CPC in the light of the provisions of Section 16 of the Specific Relief Act, without even calling upon the defendants to enter into their defence; and in the circumstances it cannot be said that the bare denial of the contentions of para 21 of the plaint, by the defendant-appellants in para 21 of the written statement, together with the other pleas raised by them against the maintainability of the suit, was such as to prevent the Court from performing its duty under O. 7, R. 11 of the CPC, or from dismissing a suit which it is forbidden from decreeing, under Section 16 of the Specific Relief Act. The contention raised by Dr. Gyan Prakash must, therefore be rejected.
17. The plaint allegations which have been discussed above in some detail loudly speak of the inability of the plaintiffs and defendants Nos. 3 to 13 to perform their part of the contract, at any time when the contract was due to be performed within three years from the date when it was entered into or the last date by which it could be performed or at any time thereafter. The suit was filed in forma pauperis and the plaintiffs were permitted to sue as paupers. The amount of Court-fee payable on the plaint was Rs. 957-50. They had no means to pay that amount when the suit was filed nor at any time before that or thereafter. The amount which they were required to pay under the contract was Rs. 8,000/- plus arrears of rent, the rate of rent payable being Rs. 60/- per month. No rent appears to have been paid by the plaintiffs or any of the defendants Nos. 3 to 13 except for the sum of Rs. 300/- said to have been paid for the period 8th December, 1952 to 7th May, 1953 and there was even a decree-for arrears of rent for the period 8th May, 1953 to 24th Oct., 1956. The amount of rent in arrears from 8th May, 1953 up to the date of the suit would be substantial but the Courts below appeared to have found that the plaintiffs or defendants Nos. 3 to 13 were not liable to pay the rent after the pulling down of the house on or about 20th Oct., 1956. According to the findings of the lower Appellate Court the amount payable by the plaintiffs has been held to be Rs. 5,484/-, Rupees 3,000/- on account of the value of the property after the demolition of the house and Rs. 2,484/- on account of arrears of rent up to 19th Oct., 1956. It cannot be said that the plaintiff have averred or proved their readiness or willingness to pay even that amount.
18. The second point raised by Mr. Yadav must also prevail. According to the two Courts below the suit could not be said to be barred by limitation because although the property was joint family property and any one of the coparceners (members) of the joint family were entitled to institute the suit, a valid discharge could not be given without the concurrence of the plaintiffs who were minors, and, therefore, time did not run against any one of them, including the plaintiffs, under Section 7 of the Limitation Act. With regard to Explanation II to that Section, it has been found by the two Courts below that there was no joint family property and no Karta, and it could not therefore be said that there was a Manager of the family in management of the joint family property.
19. The lower Appellate Court has formulated three conditions as essential for the applicability of the provision of Section 7 of the Limitation Act: (1) “their must be the manager of the joint Hindu family at the time when the discharge could be given, (2) it must be shown that the manager was in management of the joint Hindu family property, which will include the fact that the joint family must be possessed of the joint family property at the relevant time; and (3) it must be shown that the manager was capable of giving the discharge without the concurrence of the plaintiffs who were among the members of the joint family. Explanation II to Section 7 of the Limitation Act, postulates that “for the purposes of this Section the manager of a Hindu undivided family governed by Mitakshara Law shall be deemed to be capable of giving a discharge without the concurrence of the other members of the family only if he is in management of the joint family property.” It is, therefore, clear that for the purposes of Section 7 of the Limitation Act, if it is shown that the manager of the joint family property is in management of the same he shall be deemed to be capable of giving a discharge without the concurrence of the other members of the family. The third condition formulated by the lower Appellate Court is, therefore, contrary to the plain intent of Explanation II to S. 9 With regard to the second condition formulated by the lower Appellate Court, it seems impossible to say that the joint family must be possessed of joint family property at the time when the discharge could be given, that is, within the normal period of limitation for bringing a suit of the description brought by the minor within three years of his attaining majority. Take for example a suit for setting aside alienation and for possession of immovable property wrongfully alienated by a coparcener member of the joint family. Now, by reason of the alienation sought to be set aside the property goes out of the possession of the joint family. The very object of the suit is to get the property back into the possession of the joint family. The Karta of the family, assuming that there was a Karta at the time when such a suit could be brought, could not be said to be in possession of the joint family property to which the suit relates. The idea of giving a discharge by the Karta is that if he had brought a suit for setting aside of the alienation and for possession of the property, the decision in that suit would have been final and binding on the minors, notwithstanding that they were not joined as plaintiffs in the suit or were otherwise not parties thereto. It also seems impossible that the law would require that the joint family must have been possessed of some property other than the property in suit before a Karta could be said to be in management of joint family property such as to be capable of giving a valid discharge in respect of the property in suit.
20. This apart, it is the own case of the plaintiffs that they along with other members of the joint family have been in possession of the property in suit, although as tenants thereof and not as owners. Indeed, the plaint allegations themselves show that alter the transaction of 1952, Mahavir Prasad continued to be the Karta of the entire joint family and although he was not in management of any other joint family property, for the joint family possessed no other property, he was in possession of the property in suit which was the only property to which the joint family had a claim for re-conveyance under the agreement dated 8th Dec, 1952 and was in management of the tenancy rights in that property by virtue of which the joint family had continued in possession thereof. Even according to the strict meaning of the term property as a right or bundle or rights in a thing, as distinct from the thing itself, it cannot be said that the joint family was possessed of no property in the house in question for a leasehold of land is by itself regarded to be immoveable property. It cannot, therefore, be said that the joint family was possessed of no property when the suit for reconveyance could have been filed by the Karta within the normal period of limitation prescribed by law. The joint family was possessed of the leasehold in the house and was in occupation thereof. As to the question whether the Karta was in management of the joint family property it is sufficient to say that a in the suit for rent, being Suit No. 840 of 1954, Mahabir Prasad, the Karta of the joint family was the defendant, and the suit was decreed against him, and the decree has admittedly become final against the joint family. It cannot, therefore, be said that there was no Karta in management of the joint family property at the time when the suit for specific performance could have been brought within the normal period of limitation and, therefore, it must be held that the time started running, when it did against all the members of the joint family, including the plaintiff and the Karta of the joint family namely, Mahabir Prasad, who could have given a valid discharge without the concurrence of the plaintiffs and having allowed the period of limitation to run out, the suit was clearly barred by limitation. In the view that I have taken about the facts, that there was a Karta in management of the joint family property at the relevant time when discharge could have been given without the concurrence of the plaintiffs, it is not necessary to refer to or consider any of the cases cited at the bar on Section 7 of the Limitation Act.
21. Apart from this consideration it has been found by the trial Court that Mahabir Prasad the Karta of the joint family, along with his sons Sukhdeo Prasad, Hira Lal and Gaya Prasad had called upon the 1st defendant-appellant to execute the sale-deed on 8th Dec., 1955. This could only be on the footing that Mahabir Prasad the Karta of the joint family was in management of the very same joint family property which is not in suit. This may be, tested in another way. Supposing the said Mahabir Prasad, Sukhdeo Prasad, Hira Lal and Gaya Prasad, or Mahabu, Prasad alone, as the Karta of the joint family, had agreed on the 8th December, 1955 to discharge the Ist defendant-appellant of all his obligations under the contract, whether on receipt of some consideration or otherwise voluntarily and of their own accord in due course of management of the property, their action would have been binding on all the members of the joint family. The fact that they made an abortive attempt to enforce the contract, but failed, and did not follow up this alleged demand for reconveyance of the property by a suit cannot improve the rights of the other members of the joint family. Indeed it only shows that most probably they had no capacity to enforce the contract, by being ready and willing to perform their part, and obviously the attempt made on 8th December, 1955 was only an attempt to create evidence for purposes of a suit for specific performance in future when they had the capacity to enforce it. It cannot however, be said by any stretch that in these circumstances the Karta of the family was not in management of the joint family property. The finding to the contrary is plainly against law and reason.
22. I may in this context also notice the plea that non-filing of a suit cannot amount to that kind of a discharge of a liability which is contemplated by Section 7 of the Limitation Act. The omission to file a suit cannot by itself discharge a liability and even when the right to sue gets barred by time, the liability is not discharged. Only the right to enforce it by suit is lost. But Section 7 of the Limitation Act does not speak of the fact of giving a discharge. It speaks of the capacity of a person to give a discharge, and postulates that where a person capable of giving a discharge of the liability in question without the concurrence of the minor or the person under disability is there, i.e, in existence, time will run against all the joint owners, which means that if a suit is not filed within limitation, time will run out and a subsequent suit by a joint owner who is a minor or a person under disability will also be barred.
23. The one case which in my opinion concludes the matter against the plaintiffs on this point is that of Sarda Prasad v. Lala Jumna Prasad (AIR 1961 SC 1074). It was held therein that:
“The provisions of Section 7 are not limited to suits or decrees on monetary claims only. Nor is there any reason to think that the word “discharge” can refer only to debts. Discharge means to free from liability. The liability may be in respect of monetary claims, like debts; ft may be in respect of possession of property; it may be in respect of taking some order as regards property; it may be in respect of many matters. Except in the case of declaratory decrees or decrees of a similar nature, the decree in favour of one person against another requires the person against whom the decree is made liable to do something or to refrain from doing something. This liability is in a sense a debt which the party is in law bound to discharge.”
24. That was a case where the Karta of a joint family did not file an application for execution of a decree for partition within limitation. The Supreme Court held that the minor members of the family were debarred from executing the decree when they came of age and observed that:
“Equally untenable is the second argument that the provisions of O. 32 of the CPC debar the manager of a Hindu joint family from giving discharge in respect of a liability to deliver properties. Under the Hindu Law the Karta of a Hindu joint family represents all the members of the family and has the power and duty to take action which binds the family in connection with all matters of management of the family property. Clearly, therefore, when in respect of a transaction of property possession has to be received by the several members of the family, it is the Karta's duty and power to take possession on behalf of the entire family, including himself, the members of the family who are sui juris as well as those who are not.”
25. The lower appellate Court brushed aside that ruling by observing that the Supreme Court was concerned that case with the effect of not filling an execution application within limitation and not with the effect of not filing a suit. This is a distinction without a difference. Section 7 deals with suits and execution applications alike, and the word discharge used therein cannot bear two different meanings; one as to the effect of not filing of an execution application and the other as to the effect of not filing a suit within limitation.
26. It may also be noticed in this context that the Supreme Court affirmed in that case, the Division Bench decision of this Court in the case of Jamuna Prasad v. Sarda Prasad, reported in AIR 1955 All 186. It is accordingly not necessary to refer to the earlier judgements of this Court of the judgements of the other Courts this context.
27. In the result the appeal succeeds and is allowed with costs. The judgements and decrees of the two Courts below are set aside. The plaintiffs suit is dismissed with costs throughout.
28. Appeal allowed.
Section 16 of the Specific Relief Act.