S.N. Sanyal, J.@mdashThis is an appeal by the plaintiff against the judgment and decree of the learned Subordinate Judge, 3rd Court, Alipore dismissing the plaintiff''s appeal and affirming the decision of the learned Munsif, 6th Court, Alipore in Title Suit no. 63 of 1966. The plaintiff instituted the suit for specific performance of contract. The plaintiff''s case is that the uit property belonged to Rabiram Naskar. By a registered Kobala dated March 12, 1963 Rabiram sold the same to the defendant no. 1 Annabala Koyal and her minor son defendant no. 2 Pulin Chandra Koyal for a consideration of Rs. 200/-. On the date of the sale, the defendant No. 1 for self and on behalf of her minor son executed an unregistered agreement to reconvey the property to Rabiram on receipt of the consideration money of Rs.200/- within three years. The plaintiff purchased the interest of Rabiram under the said agreement for a valuable consideration. The plaintiff was always ready and willing to perform his part of the contract and offered the requisite consideration money to the defendants but as the latter refused to reconvey the property the plaintiff has been obliged to institute the suit for specific performance of contract.
2. The defendant no. 1 alone contested the suit and her contention is that the agreement for reconveyance was a fabricated document and it was manufactured as a result of collusion between the plaintiff and Rabiram. The plaintiff thus did not acquire any right. It has been further contended that the defendant no. 2 is a minor and the suit is not maintainable.
3. The learned Munsif came to the conclusion that the alleged Ekrarnama was fradulent and void and it was created by the collusive efforts of the plaintiff and Rabiram for specific gains since the land value had increased. The learned Munsif has further held that the deed of assignment in favour of the plaintiff is collusive, spurious and not enforceable at all. The learned Munsif has also found that the defendant no. 2 was a minor when the suit was instituted and the plaintiff cannot get any decree without suing the minor defendant no. 2 through his guardian. On appeal by the plaintiff, the learned Appellate Court agreed with the learned Munsif and held that the agreement for reconveyance purported to have been executed by the defendant no. 1 for self and on behalf of her minor son in favour of Rabiram was not proved. The learned Judge agreed with the learned Munsif that the deed was not genuine. The learned Judge has further held that the defendant no. 2 was a minor at the time of institution of the suit and the suit is not maintainable against the minor defendant no. 2.
4. The plaintiff has challenged the decision in the present appeal.
5. Mr. Ghose appearing on behalf of the appellant has argued that the Kobala executed by Rabiram and the agreement for reconveyance executed by the defendant no. 1 for self and on behalf of her minor son constituted mortgage. The contention of Mr. Ghose is that there was a loan in substance and in view of section 37A of the Bengal Money Lenders Act, 1940 the plaintiff is entitled to relief and to urge the said contention in spite of the provisions of section 58(c) of the Transfer of Property Act. The next contention of Mr. Ghose is that the agreement for reconveyance was duly proved but the learned courts below have not properly considered the evidence of the witnesses produced by the plaintiff. The said document should have been made an exhibit in this case. Mr. Ghose has further argued that in view of the decision in Abdul Rahim & Ors. v. Kamalapati Mukherjee AIR 1972 Calcutta 54 1, section 37A of the Bengal Money Lenders Act applies to transactions entered into even prior to the Amending Act of 1965. The decision lays clown that Section 37A is attracted to a transaction of sale and agreement to recovery effected by two separate documents even previous to the Amendment Act, 1965. Where the defendants contested a suit on the ground that they had secured a loan and executed separate documents of sale and an agreement to recovery and took the plea that the transaction in substance was loan transaction and not an out and out sale, the Court deciding the question as to the nature of the transaction must consider the effect of Section 37A which overrides the proviso to Section 58(c) of T.P. Act (1882).
6. Mr. Ghose has argued that the courts below were wrong in holding that the defendant no. 2 was a minor on the date of the institution of the suit. His contention is that the evidence of the defendant no. 1, the mother of the defendant no. 2, would clearly show that the defendant no. 2 was a major on the date of the suit. Mr. Ghose has also referred to an unreported decision of a Division Bench of this Court in Appeal from Appellate Decree no. 20 5 of 1978 decided on March 25, 1985 and has argued that in view of the said decision the plaintiff is entitled to the benefit of section 37A of the Bengal Money Lenders Act. Referring to the case of
7. Mr. Ghose thus submitted that there was no proper decision by the learned court of -appeal below and the appeal should be sent back to the said court for giving opportunity to the plaintiff to substantiate his case.
8. Mr. Mukherjee, learned Advocate for the respondents, has argued that the contentions raised by Mr. Ghose are beyond the pleadings, i.e., no case was made in the plaint that there was a loan in substance. Mr. Mukherjee submits that in such circumstances the appellant cannot be permitted to urge before this Court that there was a loan in substance and thus there was no question of the application of the provisions of the Bengal Money Lenders Act, 1940. According to Mr. Mukherjee, the case made out in the plaint was for specific performance of the contract. The plaintiff''s case in the plaint clearly is that he purchased the right of Rabiram by a deed of assignment dated February 15, 1964 and the plaintiff prayed for specific performance of the said agreement. The contention of Mr. Mukherjee is that in the absence of the Kobala executed by Rabiram in favour of the defendants the Court cannot come to any conclusion that there was a loan in substance because even if the plaintiff''s contention is accepted both the documents must be read together in order to arrive at the finding that there was not an out and out sale but a loan in substance. Mr. Mukherjee submits that the learned courts below have held that the agreement for recoveyance alleged to have been executed by the defendant no. 1 for self and on behalf of her minor son is not a genuine document and the said finding of fact by both the courts below is binding upon this Court. It has been argued that apart from all other considerations the plaintiff cannot get any relief as the specific performance is called on the basis of the agreement for recoveyance which has been found to be a spurious document. It has been further contended that the defendant no. 2 was a minor on the date of the institution of the suit and the suit is thus bad in law.
9. Both the courts below have held that the agreement alleged to have been executed by the defendant no. 1 for self and on behalf of her minor son is not a genuine document. Though the document was not formally marked as Exhibit but both courts below have considered the document on its merits and they have come to the conclusion that the same was not executed by the defendant no. 1. "In such circumstances, the submission of Mr. Ghose that the appeal should be sent back for giving opportunity to the plaintiff to adduce evidence cannot be accepted.
10. On a consideration of the plaint it will appear that the prayer made by the plaintiff was that the plaintiff purchased the right of Rabiram Naskar by a deed of assignment and he was always ready and willing to perform his part of the contract but the defendants did not recovery the property. The suit was for specific performance of the contract and the plaintiff did not allege that there was any mortgage. It is true that the provisions of section 37A of the Bengal Money Lendars Act will be attracted to a transaction even prior to the Amending Act of 1965 and section 37A overrides the proviso to section 58(c) of the Transfer of Property Act. But in order to attract the provisions of section 37A of the Bengal Money Lenders Act, a case has to be made out that a loan was secured by the two documents. In his evidence the plaintiff plaintiff has stated Rabiram has asigned the agreement to him and sought his help to have reconveyance of the property.
11. Mr. Ghose has tried to surmount the difficulty by referring to Order 7 Rule 7 of the Code of Civil Pocedure. He has argued that according to the provisions of Order 7 Rule 7 the Court can always grant a relief which is just in the circumstances of the case even if the plaintiff had not prayed for the same. In support of his contention, Mr. Ghose has referred to the Supreme Court decision in Sriniwas Ram Kumar v. Mahabir Prasad & Ors. (1952) SCA 116. In this decision it has been held that even if the courts below have given concurrent findings on pure questions Of fact the Supreme Court may interfere with concurrent finding to avoid miscarriage of justice. It has been further held that the plaintiff may rely upon different rights alternatively and claim relief thereunder in the alternative. The question arises whether in the absence of any such alternative case in the plaint it is open to the Court to grant him relief on that basis. The Rule, undoubtedly, is that the Court cannot grant relief to the plaintiff on a case for which there was no foundation in the pleadings and which the other side was not called upon or had opportunity to meet. But when the alternative case, which the plaintiff could have made, was not only admitted by the defendant in his written statement but was expressly put forward as an answer to claim which the plaintiff made in the suit there would be nothing improper in giving the plaintiff a decree upon the case which the defendant himself makes.
12. In the instant case, the plaintiff did not make a case in the alternative and no alternative prayer was made. The only prayer was for a decree for specific performance of the agreement for reconveyance and in case the defendant failed to execute a registered conveyance in favour of the plaintiff after receiving the consideration money the said agreement should be executed through the Court at the cost of the plaintiff. The defendant no. 1 in the written statement did not admit that the transaction was not an out and out sale but it was a loan. As a matter of fact, the main contention of the defendant no. 1 was that the plaintiff and Rabiram created a fraudulent agreement for reconveyance and the deed in favour of the plaintiff was also collusive and spurious. These contentions of the defendant no. 1 were found to have been proved by the learned courts below.
13. Having regard to the evidence on record, it cannot be said that the concurrent findings of fact of the learned courts below were erroneous. In the circumstances, the argument of Mr. Ghose that there was a loan in substance and the plaintiff is entitled to have the benefit of the Bengal Money Lenders Act will be of no avail. The sheet anchor of such a case is a genuine and valid agreement for reconveyance and in the instant case there is a clear finding that the alleged agreement for reconveyance is not a genuine document. As a matter of fact, specific issues were framed by the learned Munsif whether the Ekrarnama was fradulent and void and whether the deed of assignment was collusive and spurious. The learned Munsif has found against the plaintiff on both the issues. The learned Court of Appeal below has taken into consideration all the relevant materials and he has also taken the document into consideration even though it was not formally marked as Exhibit. The learned Judge has agreed with the learned Munsif that the document was not a genuine one. In such circumstances, the plaintiff''s claim for specific performance could not be granted. Any alternative relief is not also available to the plaintiff as there was no such admission on the part of the defendant. Moreover, having regard to the facts of the case, the Court cannot grant any relief in favour of the plaintiff as it would not be just because the plaintiff has founded his claim on the basis of a document which is not a genuine one.
14. Another ground on which the leaned Judge dismissed the plaintiff''s suit was that the defendant no. 2 was a minor on the date of the institution of the suit. Mr. Ghose has argued that the evidence of the defendant no. 1 will show that the defendant no. 2 was a major when the suit was instituted. The learned Judge has taken into consideration the documentary evidence produced from the school which shows that the defendant no. 2 was a minor on the date of the institution of the suit. D.W. 1 Sm. Gita Das, Head Mistress of the school, produced the certificate on the basis of the entries in the Register of the school. The relevant entries, in the Admission Register were also produced and the learned Judge on a consideration of the same and also the evidence of the plaintiff came to the conclusion that the defendant no. 2 was a minor on the date of- the institution of the suit. As regards this point, however, the relevant provisions of- the CPC were not properly considered. According to Order 32 Rule 3 C.P. Code, where the defendant is a minor, the Court, on being satisfied of the fact of his minority, shall appoint a proper person to be ''guardian for the suit for such minor. The said fact that the defendant was a minor on the date of the institution of the suit does not mean that the suit should be dismissed. The Court has to take into consideration the provisions of Carder 32 Rule 3 C.P. Code and to act accordingly. Had it been the. only ground for the dismissal of the suit, the matter would have been sent back but as the suit fails on merits on the ground that the alleged agreement for reconveyance is not a genuine document no useful purpose will be served by sending the case back after the lapse of so many years. The appeal thus fails and is dismissed. There will be no order as to costs in this appeal.
