Sajahan Howladar v. Sreenath Mistri

1. Plaintiffs Nos. 1 to 20 and Defendants Nos. 4 to 6 and No. 8 were proprietors to the extent of 12 annas 15 gundas 1 kara 1 krant share of Touzi No. 5008 of the Backergunge Collectorate. The remaining 3 as 4 gundas 3 karas 2 krants share belonged to Defendant No. 1, Hashem Howladar, as mutwali of a wakf estate. Revenue for kist March, 1936, fell into arrears with the result that a sale was held by the Collector on the 27th June, 1936, under the Land Revenue Sales Act. At that sale Defendant No. 1 in his personal capacity purchased the touzi. The sale was duly confirmed and Defendant No. 1 got symbolical possession through the Collector. He could not, however, get actual possession of all the lands of the said touzi, which remained in the possession of those old proprietors who had 12 as. 15 gundas odd share. He then brought a suit for possession being Title Suit No. 20 of 1937 of the Second Court of the Subordinate Judge of Backergunge. These old proprietors who had 12 as 15 gundas share were numbered as Defendants Nos. 1 to 25, 28 to 31, 33 and 34 in that suit. That suit was compromised between him and the aforesaid Defendants on the 21st May, 1938, and a consent decree embodying the terms of the compromise was passed. One of the terms of the compromise was that Defendant No. 1 before us agreed to convey to the said Defendants of that suit 12 as. 15 gundas 1 kara 1 krant share of the touzi on receipt of a sum of money. He having failed to carry out his part of the contract, the decree was put into execution, with the prayer that he may be directed to execute the conveyance for that share. He objected under sec. 47 of the Civil Procedure Code to the execution contending successfully that the remedy of his opponents lay in a suit. This suit for specific performance has accordingly been brought against him by the Plaintiffs who were Defendants Nos. 2, 5 to 20, and 23 to 25 of that suit of 1937. The remaining Defendants of that suit has been made pro forma Defendants on the allegation, which has not been challenged, that they failed to pay their share of the money which had to be paid on the terms of the compromise to Defendant No. 1 and the whole of it had been paid by the Plaintiffs. The suit for specific performance has been decreed by the learned Subordinate Judge. Defendant No. 1 has appealed and the points urged on his behalf are:

(i) that no decree for specific performance ought to have been passed as the Plaintiffs themselves had not fulfilled their part of the contract and did not make any attempt to do so;

(ii) that the suit for specific performance is not maintainable at their instance as all the persons in whose favour the Appellant had agreed to convey have joined as Plaintiffs; and

(iii) no decree for specific performance can be made in view of the doctrine of mutuality.

2. The material facts and terms of the solenamah which have a bearing on the first two questions are as follows:

In stating them we would follow the description of the parties as given in the suit of 1927.

3. Paragraph 3 sets out separately the shares which each one of the parties had in the said Touzi before the revenue sale.

4. The Plaintiff was to get Rs. 1,300 towards costs and mesne profits. The said amount was lying in Court. The revenue sale had left a surplus after meeting the demands for revenue. That amount was lying with the Collector. The compromise was that he, the Plaintiff, was to get the said sums of money which were in deposit in Court and with the Collector. Paragraph 4 provided that after he, (the Plaintiff), had withdrawn the said sum which was lying in Court and after the Defendants named in paragraph 3 had paid to him the sum of money which was lying in deposit with the Collector and a further sum of Rs. 2,510 within Chaitra of that year, he would execute a conveyance in favour of the said Defendants according to their shares as set out in paragraph 3 of the solenama. Paragraph 5, however, provided that if the said Defendants paid the said sum of Rs. 2,510 within Chaitra and required the Plaintiff to execute a conveyance in their favour he would be bound to do so and that in that case he himself would withdraw the surplus sale proceeds which were lying with the Collector. Paragraph 8 provided that if some of those Defendants named in paragraph 3 did not pay their share of Rs. 2,510, but the others paid the whole amount, Alien the conveyance in respect of the 12 as. 15 gundas 1 kara 1 krant share would have to be executed in favour of those Defendants who had so paid. That clause further provided for adjustment of shares amongst those Defendants who paid the said sum of Rs. 2,510.

5. The Plaintiffs of the suit before us paid the whole sum of Rs. 2,510 to the Plaintiff of that suit, who is Defendant. No. 1 in this suit, within the Chaitra of that year and demanded a conveyance which was refused. He did not apply to the Collector for withdrawal of the surplus sale proceeds, nor did he ask the Defendants of that suit to help him in withdrawing the same. The pro forma Defendants Nos. 4 to 6 and 8 of this suit, who were some of the Defendants mentioned in paragraph 3 of the solenamah did not pay any part of the said sum of Rs. 2,510. On these facts and on the terms paragraphs 4, 5 and 8 of the solenamah which we have summarised above the first two points urged before us are of no substance.

6. The third point depends upon the following facts. Defendants Nos. 9 and 10 of the suit of 1927, who are two of the Plaintiffs in this suit, were minors. They were represented by guardians-ad-litem in the suit of 1927. The compromise was entered into on their behalf by those guardians. Whether their guardians had applied to the Court for leave to compromise does not appear, but the order sheet of Court shows that no order was passed which gave leave to compromise in express terms. It, however, appears that the Court's attention was drawn to the fact that there were minors, that their guardians were also entering into the compromise, and that thereafter the Court recorded the compromise, and a decree was passed. The question is whether in these circumstances the decision of the Judicial Committee in Mir Sarwarjan v. Fakhruddin Mohamad Chowdhury(1) on which the Appellant's Advocate relies, is applicable. In that case the Defendant had entered into an agreement to sell immovables to the Manager of the Estate of some infants. The infants represented by a next friend brought a suit for specific performance of that contract. Their suit was dismissed by the Judicial Committee of the Privy Council. It was held that it was not within the competence of a manager of a minor's estate or of a minor's guardian to bind the minor or the minor's estate by a contract for the purchase of immovable property. Accordingly it was held that as a suit for specific performance could not be maintainable against a minor, a minor cannot sue for specific performance, the basis being of the doctrine of mutuality. A suit for specific performance of a contract entered into by his guardian brought against the minor would have been defeated as the minor, who has the option of repudiating the contract, could in his defence to the suit plead that he was not bound by the contract and so avoid its effect. In our judgment that reason would not apply where there is a decree of Court which had incorporated the contract. No doubt a minor is not bound by a consent decree on the ground that his guardian-ad-litem had not obtained leave of the Court to compromise. It is not, however, a void decree and he has to avoid it by a proceeding attacking it in a direct manner, and until it is set aside it is binding on him [Arunachallam v. Murugappa(2) and Golenur Bibi v. Abdus Samad(3)].

7. This follows from the general principles. No doubt a decree passed on compromise can be avoided on the same grounds on which a contract can be avoided, because a consent decree derives its force from the compromise. But there is this material difference, namely, that a consent decree cannot be attacked collaterally. In Wilding v. Sanderson(4), Byrne, J., stated the principle thus:

“A consent judgment or order is meant to be the formal result and expression of an agreement already arrived at between the parties to the proceedings embodied in an order of the Court. The fact of its being so expressed puts the parties in a different position from the position of those who have simply entered into an ordinary agreement. It is of course enforceable as it stands, and a party affected by it cannot, if he conceives he is entitled to relief from its operations, simply wait until it is sought to be enforced against him, and then raise by way of defence the matters in respect of which he desires to be relieved. He must, when once it has been completed, obey it, unless and until he can get it set aside in proceedings duly constituted for the purpose.”

8. We accordingly hold that Mir Sarwarjan's case is not applicable and overrule the third point raised by the Appellant.

9. The result is that this appeal is dismissed with costs.

10. The cross-objection is not pressed and is dismissed with costs.