Ashek Ali (Md) and Others vs. Respondent: Abdul Gaffar & Others

IN THE SUPREME COURT OF BANGLADESH
(HIGH COURT DIVISION)

First Appeal No. 503 of 2000

Decided On: 27.10.2010

Appellants: Ashek Ali (Md) and others
Vs.
Respondent: Abdul Gaffar & others

**Hon’ble Judges:**Nozrul Islam Chowdhury and Jahangir Hossain, JJ.

Counsels:
For Appellant/Petitioner/Plaintiff: Mosiul Alam, Advocate

For Respondents/Defendant: Dr M Zahir with Fazlul Karim Chowdhury - For Respondent Nos. 1-4

Subject: Contract

Catch Words

Mentioned IN

**Acts/Rules/Orders:**Contract Act, 1872 - Section 32; Specific Relief Act, 1877 - Section 14, Specific Relief Act, 1877 - Section 15, Specific Relief Act, 1877 - Section 16, Specific Relief Act, 1877 - Section 17; Transfer Of Property Act, 1882 - Section 43, Transfer Of Property Act, 1882 - Section 6

Citing Reference:

Mentioned

 3

Case Note:
Specific Performance of Contract - Suit for - Present appeal directed against judgment and decree passed in title suit decreeing suit for specific performance of contract - Whether judgment and decree under challenge need interference - Held, specific performance of contract is equitable relief - In present case, absence of any saleable interest in their favour in respect of suit land in any form - Defendant Nos. 1-7, 11 and 12 cannot be directed to register deed of transfer in favour of plaintiff -Impugned judgment and decree set aside - Appeal allowed. [24]

Disposition:
Appeal Allowed

JUDGMENT

Nozrul Islam Chowdhury, J.

1. This appeal at the instance of the defendants as appellants, is directed against the judgment and decree dated 30-7-2000 passed in Title Suit No. 133 of 1993 re-numbered as Title Suit No. 73 of 1997, by the learned Sub-ordinate Judge, now Joint District Judge, arbitration Court, Dhaka decreeing the suit for Specific Performance of Contract. Facts, in a nutshell, giving rise to this appeal are that one Nazar Ali the predecessor of the defendant Nos. 1-12, was allotted two re-habilitation Plots bearing No. C-338 and C-339 covering a area of 7(seven) kathas within Khilgoan mouza appertaining to CS Plot Nos. 557 and 559 within the city of Dhaka and after such allotment the delivery of possession of the said land was made over in favour of Nazar Ali on 20-11-74, thereafter on 29-9-81 Nazar Ali entered into an agreement for sale in favour of Jahanara Begum in respect of 2 1/2 katha of land appertaining to western part of plot No. C-339 at a consideration of Taka 3 (three) lakh upon receipt of an earnest money of Taka 2,99,000 followed by delivery of possession and at that occasion Nazar Ali also executed a power of attorney in favour of Abdul Gaffar the husband of said Jahanara Begum, thereafter on 30-3-82 Nazar Ali also entered into an agreement for sale in favour of Jahanara Begum in respect of the remaining part of plot No. C-339 along with half katha of land appertaining to plot No. 338 i.e. 1 1/2 katha land (by 2nd bainapatra) at a consideration of Taka 1,71,000 upon receipt of an earnest money amounting to Taka 1 (one) lakh. In the process aforesaid Nazar Ali entered into an agreement for sale of 4 kathas of land in favour of Jahanara Begum at a stage when no registered lease deed was executed in favour of Nazar Ali by the Ministry of Works and the agreement for sale was made only after obtaining letter of allotment from the authority concerned; Nazar Ali during his life time could not execute and register the deed of transfer in favour of Jahanara in view of absence of any registered lease deed in his favour from the Ministry of Works; Nazar Ali died on 8-6-83 leaving behind defendant Nos. 1-12 as his legal heirs, thereafter Jahanara Begum failed to obtain the registered deed of transfer from the heirs of Nazar Ali in respect of the aforesaid 4 (four) kathas of land, therefore, suit for Special Performance of Contract was brought by the heirs of Jahanara Begum since she died before institution of the suit being Title Suit No. 133 of 1993 re-numbered as Title Suit No. 73 of 1997. It is also the case of the plaintiff that the defendant Nos. 8-10 had obtained a registered lease deed in their favour from the Ministry of Works in respect of 2 (two) kathas and 8 Chattak of land out of the said 7 (seven) kathas of land allotted in favour of Nazar Ali.

2. In the said suit two sets of written statements were filed on behalf of the defendants of which one was by the defendants 1-7, 11 and 12, while the other set of written statement was filed by the defendant Nos. 8-10 jointly.

3. In the written statement filed by defendant Nos. 1-7, 11 and 12 they admitted the execution of Bainapatra in favour of Jahanara by their predecessor Nazar Ali but they expressed their inability to execute and register the deed of transfer in view of absence of any registered deed of lease either in favour of Nazar Ali or in favour of his legal heirs. The said answering defendants, also disclosed that Nazar Ali had four wives and children out of them; therefore, they were not in a position to join together for the purpose of execution of any deed in favour of Jahanara and or her heirs the plaintiffs in the present suit.

4. The defendant Nos. 8-10, on the other hand, filed their written statement denying the material allegations made in the plaint contending inter alia that Nazar Ali during his life time could not obtain any registered lease deed in his favour in respect of his allotted 7 (seven) kathas of land and after his death the defendant Nos. 1-12 were left behind as his heirs, in the said written statement they also disclosed various sorts of disputes in between the different groups of children out of his, four wives they also disclosed in the written statement that they were not aware of the alleged Bainapatra in favour of Jahanara by their predecessor Nazar Ali when the authority concerned found the defendants Nos. 8-10 in possession of 2 1/2 kathas of land out of the allotted land of Nazar Ali, the said 2 1/2 kathas was transferred in favour of the said defendant Nos. 8-10 by a registered lease deed executed by the Ministry of Works out of which they are in possession of 1.85 kathas of land and for obtaining possession of the remaining part of their allotted land they have already applied before the proper authority but the authority was not in a position to make over possession of the remaining part of the land leased out in their favour owing to an order of injunction granted by the Court, therefore, defendant Nos. 8-10 prayed for dismissal of the suit.

5. Eventually, the suit was taken up for hearing by the learned Joint District Judge, where plaintiffs examined 5 (five) witnesses and the defendants examined 6(six) witnesses on their behalf and upon conclusion of the trial the learned Joint District Judge by his judgment and decree dated 30-7-2000 decreed the suit directing the defendant Nos. 1-12 to execute and register a deed of transfer in respect of the suit land in favour of the plaintiffs within 60(sixty) days failing which the said deed would be executed through Court. Against the said judgment and decree passed in Title Suit No. 73 of 1997 the defendant Nos. 8-10 as appellants preferred the instant Appeal.

6. Mr Md Mosiul Alam, the learned Advocate appearing for the appellants submits at the very outset that admittedly no registered lease deed was executed by the Ministry of Works in favour of Nazar Ali in respect of his 7(seven) kathas of land during his life time and after obtaining letter of allotment he had allegedly executed two bainapatras one on 29-9-81 and the other one on 30-3-82 and the said two bainapatras are dependent on uncertain future event like registration and the instant suit for Specific Performance of Contract has been brought, for the alleged contract which is hit by section 32 of the Contract Act, 1872.

7. Elaborating his submissions the learned Advocate for the appellants disclosed further that Nazar Ali had no saleable interest at the time when he had entered into the said two contracts for sale in favour of Jahanara, therefore, the same is not at all enforceable under the law. It is also submitted by Mr. Moshiul Alam that the instant suit is also hit by section 17 of the Specific Relief Act more particularly when admittedly no registered lease deed has yet been granted in favour of the defendant Nos. 1-7 and 11 and 12 though a fractional part of the leased out land has by now been registered in favour of defendant Nos. 8-10 and admittedly the shares of each of the defendants in the suit land have not yet been demarcated or specified as such unspecified shares of the defendant Nos. 8-10 cannot be enforced by a suit for Specific Performance.

8. It is also submitted by Mr. Moshiul Alam, the learned Advocate that in view of the absence of any registered lease deed in favour of all the defendants in respect of the suit land from the Ministry of Works they have no saleable interest in the suit land, as such, any direction given by the Court concerned like the impugned decree must be rendered to be in-fructuous one particularly in view of section 6 of Transfer of Property Act.

9. Substantiating his submissions as aforesaid the learned Advocate for the appellants placed reliance in the case of Ghulam Muhd. Shah vs. Fateh Muhammad Shah reported in 7 DLR (FC) 70 (76) and the case of Jagdeo Sharma vs. Nandan Mahto reported in AIR 1982 (Pat) 32.

10. Dr. M. Zahir the learned Counsel appearing with Mr. Md. Fazlul Karim Chowdhury for the respondent Nos. 1-4 submits that the instant suit is in no way hit by section 17 of the Specific Relief Act rather the defendant Nos. 8-10 having had a lease deed in the meantime in respect of 2 1/2 kathas of land out of the suit land from the Ministry of Works the suit can be decreed in part at the least and in substantiating his submission the learned Advocate placed reliance in the case of Nurun Nessa Khatun vs. Saleha Rahman reported in 26 DLR 347.

11. The learned Counsel submits further than the contract involved in the instant suit is not at all a contingent one as contemplated under section 32 of the Contract Act.

12. In view of the fact that the Order of allotment necessarily follows a registered lease deed in favour of the allottee, therefore, the allottee had a legitimate expectation in getting the registered lease deed in his favour and could have transferred or entered into a contract for sale as in the instant case with Jahanara by Nazar Ali. In this connection Dr. M. Zahir placed reliance in the case of Ghulam Muhd Shah vs. Fateh Muhammad Shah reported in 7 DLR (FC) 70. The learned Counsel for the respondent has also referred to section 43 of the Transfer of Property Act to substantiate his submissions that transfer by an unauthorized person but subsequently acquired interest in his favour can also enter into a contract for sale as in the instant case which may be enforced through Court.

13. Elaborating submission the learned Counsel referred to the fact that the defendant Nos. 8-10 had already obtained a registered lease deed in their favour in respect of 2 1/2, kathas of land out of the suit land.

14. In answering the submissions made by the learned Advocate for the appellant Dr. M. Zahir submits that Specific Performance of Contract may be enforced in part as well. In substantiating his submission the learned Counsel referred to the case of Nurun Nesa Khatun vs. Saleha Rahman reported in 26 DLR 347.

15. The learned Counsel also submits that the instant agreement is covered by the provision of section 16 of the Specific Relief Act, as such, its enforcement is sustainable in view and the impugned judgment and decree to the extent of shares of defendant Nos. 8-10 do not warrant any interference by this Court.

16. Heard the learned Advocates, perused the material on record including the decisions referred to by both sides wherefrom it transpires that in the instant case the registered bainapatra dated 29-9-1981 and another unregistered bainapatra dated 30-3-1982 were executed by Nazar Ali in favour of Jahanara Begum in respect of the suit land at a stage when he had simply got an allotment letter dated 27-6-1961 and no registered lease deed was executed in his favour by the Ministry of Works and that Nazar Ali during his life time could not obtain any such lease deed in his favour till his death on 8-6-1983 and even after his death his heirs namely the defendant Nos. 1-7 and 11 and 12 did never receive any registered lease deed in respect of the suit land till date although the defendants Nos. 8-10 has, however, been able to obtain a lease deed in their favour in respect of 2 1/2 kathas of land out of the suit land since on an enquiry they were found in possession of 1.85 kathas of land and for acquisition of possession of the remaining part of 2 1/2 kathas the defendant Nos. 8-10 and are still fighting.

17. In this suit particularly in the Appeal arising out of the same, the question as to the genuineness or otherwise of the bainapatra, has not been raised at all, therefore, the evidence led by the parties in support or against the same need not be gone into, as such, we do not feel it necessary to go for consideration of the evidence on record more particularly when the factual part of the case, is rather found, no longer disputed.

18. Turning to the point of law raised by the parties in this appeal, particularly Section 32 of the Contract Act which renders certain contracts un enforceable, on scrutiny of the facts we find that Nazar Ali entered into two contracts for sale of the suit land in favour of Jahanara at a stage when title of the land was not admittedly transferred in his favour through any registered lease deed, therefore, the contract was in fact subject to registration of the lease deed in his favour by Ministry of Works and such registration was no doubt an uncertain future event which as a matter of fact, did not take place till date so far as Nazar Ali or his other heirs i.e. defendant Nos. 1-7 and 11-12 are concerned, therefore, the contracts so far as those relate to defendant Nos. 1-7 and 11 and 12 are no doubt contingent ones which under section 32 of the Contract Act is not enforceable.

19. Turning to the other part of the contract so far as it relates to defendant Nos. 8-10, it is evident that they have however, in the meantime obtained a registered leased deed in their favour in respect of 2 1/2 kathas of land and possession whereof has not yet been obtained by them fully but in that case too, considering a good member of heirs left behind by the Nazar Ali, we are not supposed to embark upon a task of determination of specific shares obtained by those defendant Nos. 8-10 and under such circumstances the submissions made by Dr. M. Zahir to the effect that the contract in question is enforceable in part is also not sustainable more particularly when it is evident that the same is not a divisible one.

20. We have also noticed that the case relied on by the learned Counsel for the respondents reported in 26 DLR 347 and having gone through the same we find that the principle of law enunciated in that case also do not come in aid of the learned Counsel for the respondents. In view of the position that in that particular case the shares of the plaintiffs and the defendants were specified namely the shares of the plaintiff’s in that particular case was 3/4th while the shares of the defendants 1/4th and there was no dispute as to the shares of the plaintiff and the defendants in that particular, case on the other hand, in the instant case there is no specification of the share of defendant Nos. 8-10 in the suit land and under such circumstances it is also evident that section 17 of the Specific Relief Act operators as a bar in proceeding with the instant suit and in this connection we feel it proper to quote section 17 of the Specific Relief Act which reads as under:

17. Bar in other cases of specific performance of part of contract-The Court shall not direct the specific performance of a part of a contract except in cases coming under one or other of the three last preceding sections.

21. In the connection it may be mentioned that three last preceding sections of the Specific Relief Act (of section 17) i.e. sections 14, 15 and 16 also do not cover the instant suit, since the contracts involved in this suit are indivisible therefore, part performance thereof, as claimed by the respondents, is not permissible because of the general principle that a contract cannot be enforced in part, as contemplated under section 17 of the Specific Relief Act.

22. Turning to the point raised by Dr M Zahir referring to section 43 of the Transfer of Property Act that contract by unauthorized person subsequently acquires interest in property contracted is a valid contract and enforceable one. In answering this question it is profitable to quote section 43 of the Transfer of Property Act which reads as under:

43. Where a person fraudulently or erroneously represents that he is authorized to transfer certain immovable property and professes to transfer such property for consideration, such transfer shall, at the option of the transferee, operate on any interest which the transferor may acquire in such property at any time during which the contract of transfer subsists. Nothing in this section impair the right of transfers in good faith for consideration without notice of the existence of the said option.

23. From a perusal of the aforesaid provision of law we find that for the purpose of application of section 43 of the Transfer of Property Act an element of either fraudulent or erroneous representation by the person who entered into a contract, is necessary, while entering into such contract or sale but in the instant case admittedly there is no such element of either fraud or error in the representation is available by the maker of the contract namely Nazar Ali and, in such view of the matter, we find that section 43 of Transfer of Property Act has got no manner of application in the instant suit rather we find substance in the submission made by the learned Advocate for the appellants to the effect that section 6 of the Transfer of Property Act is also a bar in the instant suit since the contract available in the instant suit on the basis whereof decree also passed was entered into by a person who had merely a possibility of obtaining a registered deed from the Ministry of Works and such possibility of obtaining a registered deed in his favour was not at all transferable although it was done in the instant case by Nazar Ali and taking no notice of any of the situations disclosed above, the trial Court decreed the suit without application of its judicial mind.

24. Lastly, in view of the facts and circumstances disclosed above, it is also evident that Specific Performance of contract is an equitable relief and under certain circumstances such equitable relief cannot be granted particularly when it is found that the decree even if granted, would in fact be rendered in-fructuous as in the instant case. Since the defendant Nos. 1-7, 11 and 12 cannot be directed to register a deed of transfer in favour of the plaintiff in view of absence of any saleable interest in their favour in respect of the suit land in any form and so far as the defendant Nos. 8-10 are concern their shares in the suit land on the death of their predecessor having not been specified or ascertained they can also not be directed to execute and register a sale deed in favour of the plaintiff although in their independent capacity they have by now acquired a registered lease deed in their favour in respect of 2 1/2 kathas of land. In view of what has been started in above, we find substance in the appeal, accordingly, the same is allowed without any order as to costs. Consequently, the impugned judgment and decree dated 30-7-2000 passed by the Sub-ordinate Judge, (Arbitration), Dhaka in Title Suit No. 73 of 1997 is hereby set aside.

Send down the lower Court’s record at once.