Chittatosh Mookerjee, J.@mdashThis Second Appeal is at the instance of the Defendant No. 1. Atul Chandra Adak (since deceased) and Mathura Mohan Adak instituted T.S. No. 45 of 1959 against the present Appellant and Anil Chandra Sahana, the Respondent No. 2, inter alia, for specific performance of an agreement to execute a sale-deed in favour of the Plaintiff No. 2 in respect of Dag Nos. 848 and 840, mouza Muidipur, measuring 1-7 decimals and for khas possession of the said property.
2. The Plaintiffs Nos. 1 and 2 were respectively father and son. The Defendant No. 1 was described as sister''s son of the Defendant No. 2. The Defendant No. 2 allegedly purchased the land described in the ka schedule from Golab Sundari Dasi (since deceased) The Defendant No. 2 allegedly gave out that he had purchased the said property with the money of the Defendant No. 1 and he was his benamdar. The Defendant No. 2 was the son-in-law of the Plaintiff No. 1 The Plaintiff No. 1 had auction-purchased certain portion of land appertaining to khatian Nos. 594 and 597 of mourn Muidipur and had become a co-sharer of the Defendant No. 1 and others. The Plaintiff No. 1 had instituted T.S. No. 49 of 1955 in the Subordinate Judge''s Court against the Defendant No. 1 and others for partition of his share by metes and bounds. The said case remained pending for a long time and subsequently on transfer was renumbered as T.S. No. 26 of 1958. November 14, 1958, was ultimately fixed for hearing of the said suit. The Plaintiff No. 2 had been looking after the said case on behalf of his father, the Plaintiff No. 1. Through the intervention of iKarunamoy Sahana and the Defendant No. 2 on November 12,1958, there was an agreement/settlement and/or compromise between the Plaintiff No. 2 and the Defendant No. 1. According to the Plaintiff, it was agreed that the Plaintiff No. 1 would give up all his claim in respect of the lands which were the subject matter of the said partition suit as most of the said lands formed part of the Defendant No. 1''s bastu and the surrounding area and as a consideration of the same the Defendant No. 1 without payment of price should execute and register necessary kobala in respect of the shit property in favour of the Plaintiff No. 2. Accordingly, the Plaintiff No. 2 and the Defendant No. 1 had come to Burdwan on November 13,1958, for filing a solenama in the said partition suit and had disclosed the same to their common relation Bishnupada Sahana. The said Bishnupada Sahana, who was related to both the parties, did not agree to act as a lawyer for either of them. He was fully aware of the terms of compromise between the parties and in his presence and with his assistance the solenama in the partition suit was drafted. As the property which was the subject matter of the present suit was not included in the previous partition suit, the Defendant No. 1 did not agree to mention the said property in the solenama. Bishnupada Sahana and his elder brother were aware of the agreement to convey the suit property and as they had assured the Plaintiffs that there would be no difficulty in execution of a kobala in future, the Plaintiff No. 2 did not insist upon execution of the kobala in his favour filing of the solenama. The Plaintiff thereafter had requested the Defendant No. 1 to execute and register necessary kobala. But the Defendant No. 1 fraudulently and dishonestly declined to do so. The Plaintiffs alleged that, if the parties had not entered into the said agreement for conveying the suit property to the Plaintiff No. 2, the Plaintiffs would not have agreed to compromise the partition suit.
3. The Defendant No. 1 Sudhangshu Mohan Koley, the present Appellant, in his written statement denied that there was any agreement between the parties for executing the kobala as alleged by the, Plaintiffs at all. According to the Defendant No. 1, except what were written in the solenama, there was no other agreement or term between the parties. The Defendant No. 1 not only denied the factum of the agreement but also averred that the alleged agreement was without any consideration and the same was void and inoperative.
4. The learned Munsif, Second Court at Burdwan, decreed the suit in favour of the, Plaintiffs. He directed the Defendant to execute and register a sale deed in favour of the Plaintiff No. 2 in respect of the ka schedule property within 15 days from the date of the decree failing which the Plaintiff No. 2 would be at liberty to get the same done through the Court. The Plaintiff No. 2 was also given right to get khas possession of the suit property after the execution and the registration of the sale deed.
5. The Defendant No. 1 (present Appellant) preferred T.A. No. 173 of 1961. The learned Additional Subordinate Judge dismissed the appeal and affirmed the judgment and decree of the trial Court. The trial Court and the lower appellate Court have concurrently held that Atul Chandra Adak had instituted T.S. No. 26 of 1958/49 of 1955 against the Defendant No. 1, Sudhangshu Mohan Koley and others and that the said suit ended in compromise on November 14, 1958. The Courts have also found that Mathura Mohan Adak, the Plaintiff No. 2, was making tadbir in respect of the suit on behalf of his father, the Plaintiff No. 1. The Defendant No. 2 has been found to be a benamdar of the Defendant No. 1 in respect of the suit property. The Courts have believed the evidence of P.Ws. 1 and 3 and have accepted the Plaintiffs'' case that there was an agreement between the parties that the Defendants would convey the suit property in favour of the Plaintiffs without payment of price by way of consideration for compromise between the parties in the previous partition suit. The Courts of facts accepted the explanation of the Plaintiffs regarding omission to mention the agreement between the parties regarding the suit property in the said solenama. Upon the finding that the Defendant No. 1 had agreed to transfer the suit property in favour of the Plaintiff No. 2 without consideration and without price, the Courts of facts held that the Plaintiffs were entitled to a decree for specific performance and recover khas possession.
6. Mr. Banerjee, learned Advocate appearing on behalf of the Appellant, has not very seriously disputed the above concurrent finding that before execution of the solenama in the partition suit there was an agreement between the parties for executing a kobala by the Defendant No. 1 in favour of the Plaintiff No. 2 without payment of price and as a consideration for the said solenama. Mr. Banerjee, learned Advocate for the Appellant, has contended that even assuming that there was such an agreement, the same was not capable of being specifically performed. According to Mr. Banerjee, the agreement to execute a kobala without payment of cash consideration was invalid and the same did not amount to an agreement of sale. Therefore, the decree directing that the Defendants do execute a sale deed in favour of the Plaintiffs was not in accordance with law.
7. The question whether there was any oral contract between the parties in respect of ka schedule property was entirely one of fact. The trial Court and the lower appellate Court have concurrently found that P.W. 2 Anil Chandra Sahana, who was the Defendant No. 2 in the said case, was a benamdar of his maternal nephew, the Defendant No. 1. The Courts of facts have cogent reasons why they believed the evidence of the Plaintiffs'' witnesses including P.W. 3 Bishnupada Sahana. P.W. 3 Bishnupada Sahana was a lawyer and he was a relation of both the parties. According to the Courts of facts, it was Bishnupada Sahana who had drafted the solenama. The Courts of facts have also accepted the explanation of the Plaintiff why the agreement to transfer the suit property was not mentioned in the solenama filed in the partition suit. Therefore, it was no longer open to the Appellant in this second appeal to challenge the concurrent finding that there was a parol agreement between the parties for transferring the suit property without payment of any price. In the absence of any stipulated time the transaction was to be completed within a reasonable time.
8. Thereafter, the main question in this appeal is whether the said parol agreement was valid and enforceable by a suit for specific performance. It does not appear from the judgment either of the trial Court or of the lower appellate Court that the present Appellant had raised any question about the validity of the said agreement., But, the point whether the agreement was capable of specific performance being one of law, I permitted Mr. Banerjee, learned Advocate for the Appellant, to urge the same.
9. ''Sale'' has been defined in Section 54 of the Transfer of Property Act, 1882, as
...transfer of ownership in exchange for a price paid or promised or part-paid and part-promised.
Mr. Banerjee, learned Advocate for the Appellant, has submitted that, in the instant case, the alleged agreement was for transfer of the suit property without the payment of price. Therefore, the most essential ingredient of a sale, namely, payment or promise to pay price, was absent. Therefore, the transaction cannot be considered as a sale. Mr. Banerjee in this connection has placed strong reliance upon the observation of Ramaswami J. in Commissioner of income tax, Andhra Pradesh v. Motors and General Stores Pvt. Ltd. AIR 1968 S.C. 200 (203). In the said case, the Supreme Court considered whether a transaction under which the Directors of a company owning a cinema house transferred the said cinema house in consideration in the shape of 5 per cent tax-free cumulative preference shares held by the transferee was a sale or not Ramaswami J. observed:
It is clear therefore that both under the Sale of Goods Act and the Transfer of Property Act, sale is a transfer of property in the goods or of the ownership in immovable property for a money consideration. But in exchange there is a reciprocal transfer of interest in the immovable property, the corresponding transfer of interest in the movable property being denoted by the word ''barter''.
In this connection, the learned Judge referred to the Full Bench decision of the Madras High Court in
10. Fry in his well-known book A Treatise on the Specific Performance of Contracts (6th ed., 1921, p. 164, Article 353) laid down:
In all sales it is evident that price is an essential ingredient and that where this is neither ascertained nor-rendered ascertainable, the contract is void for incompleteness and incapable of enforcement.
11. In view of these authoritative statements of law, I am bound to hold that in case of a sale either the price itself must be specified or there should be provisions for ascertaining the price. In the instant case, there was no cash consideration for agreement to transfer the property in favour of the Plaintiff No. 2. But in my view, it does not therefore automatically follow that there was no valid agreement capable of specific performance. The transaction would be still a valid one if it was for valuable consideration. In case the agreement was for consideration, the Court at its discretion could order for specific performance of the same. A transaction which provides for mutual transfer of ownership of two properties, neither or both things being money only, the same would be an exchange. Again, if the Plaintiffs had entered into compromise in the provisions partition suit acting upon representations by the Defendants to execute a deed of transfer in future, we have to consider whether such act or forbearance of the Plaintiffs in relation to the said partition suit could be a lawful consideration for the said agreement. I am of the view that even if the transaction did not amount to a sale, still the Plaintiffs might succeed upon showing that there was a valid agreement for consideration to transfer and that such agreement to transfer was not a mere gratuitous one.
12. The Courts of facts have believed the Plaintiffs'' case that the Plaintiffs did not proceed with the partition suit upon the representation by the Defendants that they would transfer the suit property to the Plaintiff No. 2 without payment of any cash price. Thus, it was clearly a bargain between the parties under which the Plaintiff No. 1 signified his willingness not to press his claim for partition of the land which formed part of the homestead of the Defendants with a view to obtain the suit property without payment of any cash price. Therefore, there was a forbearance on the part of the Plaintiffs and a promise by the present Defendants. In other words, the promise of the Defendants to convey the suit property to the Plaintiff No. 2 was not gratuitous but was for valuable consideration. Accordingly, there was a return or quid pro quo for the promise made by the Defendants to transfer the property, the same fulfilled the definition of the expression ''consideration'' given u/s 2 of the Indian Contract Act. In this connection, see the observations of Pollock and Mulla on Indian Contract and Specific Relief Acts (9th ed., pp. 21-22) and also the observations of Subba Rao J. in
13. Mr. S.C. Mitter, learned Advocate appearing on behalf of the Respondents, has correctly pointed out that, in the instant case, there was an executory agreement between the parties to the effect that upon the Plaintiffs'' giving up their claims in the partition suit the Defendants would execute a transfer deed without payment of price in favour of the Plaintiff No. 2. The same in substance gave rise to an executory estoppel. In this connection, Mr. Mitter placed reliance upon the decisions of the Supreme Court in Union of India v. Indo-Afghan Agencies etc. AIR 1968 S.C 718 and in
In pursuance of the undertaking given by the Plaintiff company that it would discharge the income tax liability of the Defendant in respect of undistributed dividends kept back by the Plaintiff company for being used as working capital, the Plaintiff actually paid the income tax assessed on Defendant during the years 1941 to 1955 and never treated it as a debt due to Defendant. Subsequently, when a transfer of 49% of the Defendant''s shares was registered in favour of the 3rd party and the control of the company went into 3rd party''s hands, the Plaintiff used the Defendant for the amount of tax liability discharged by it and also claimed a lien on the shares held by the Defendant. Held, that in the facts and circumstances of the case the suit claim was barred by the principle of promissory estoppel and the lien on shares claimed by the Defendant had been waived.
In this connection Hegde J. had observed:
''Estoppel'' is a rule of equity. That rule has gained new dimensions in recent years. A new class of estoppel, i.e. promissory estoppel, has come to be recognised by the Courts in this country as well as in England. The full implication of ''promissory estoppel'' is yet to be spelled out.
In this connection the learned Judge referred to the English decisions in Central London Property Trust Lid. v. High Trees House Ltd. (1947) 1 K.B. 130 and in Tool Metal'' Manufacturing Co. Ltd. v. Tungsten Electric Co. Ltd. (1955) 2 All E.R. 657. Reliance was placed upon the observation of Denning J. (as he then was) in Central London Property Trust Ltd. v. High Trees House Ltd. (1947) 1 K.B. 130 to the effect,
where parties enter into an agreement which is intended to create legal relations between them and in pursuance of such arrangement one party makes a promise to the other which he knows will be acted on and which is in fact acted on by the promisee, the Court will threat the promise as binding on the promisor to the extent that it will not allow him to act inconsistently with it even although the promise may not be supported by consideration in the strict sense.
14. Similarly, the Supreme Court in
A representation that something will be done in the future may result in a contract if another person to whom it is addressed acts upon it. A representation that something will be done in future is not a representation that it is true when made.... If the representation is acted upon by another person it may, unless the statute governing the person making the representation provides otherwise, result in an agreement enforceable at law; if the statute requires that the agreement shall be in a certain form, no contract may result from the representation and acting therefore, but the law is not powerless to raise in appropriate cases an equity against him Xo compel performance of the obligation arising out of his representation.
15. It is true that the observations of the Supreme Court in Union of India v. Indo-Afghan Agencies Supra and in Century Spinning and Manufacturing Co. Ltd. v. The Ulhasnagar Municipal Council and Anr. Supra were made in connection with the representations made by public authorities, but there is nothing in the judgment to indicate that the same principle of executory estoppel shall not be applicable in case of private person or body. The same equitable principle, in my view, may be invoked in appropriate cases to compel such private person to perform agreements arising out of his representation. In the instant case, the Plaintiff No. 1 had acted upon the representation of the Defendants that they would without payment of cash price transfer the suit property if the Plaintiff No. 1 would not press his claim in the partition suit. Such obligation of the Defendant No. 1 being for a lawful consideration gave rise to a valid agreement and such agreement was capable of specific performance. Therefore, I fail to see why such equitable relief provided in the Specific Relief Act should not be extended in favour of the Plaintiffs.
16. I have already held that the transfer between the parties did not amount to an agreement to sell. But the same was an agreement to transfer without payment of cash price by way of consideration for the solenama entered in the partition suit. The Privy Council in C.A. Savage and Ors. v. M.O. Uwechia (1961) 1 W.L.R. 455 reversed the order of the Federal Supreme Court of Nigeria and held that the trial Court had rightly refused the relief for specific performance in the said case. Lord Modson delivering the opinion of the Privy Council upon a construction of the document in question held that the same was not a contract for the sale of land at an ascertained or ascertainable price and that the relationship of vendor and purchaser was never established between the parties. The learned Judge, further, pointed out that the Plaintiffs-Respondents did not give any evidence as to the circumstances in which the agreement was reached and had relied solely on a copy of the document. Accordingly, it was observed that there was nothing to show what was the consideration and in case the document referred to a past consideration, the same would be insufficient to support a contract for the sale of land.
17. In the instant case, the Plaintiff gave evidence as to the circumstances under which there was a parol agreement to transfer the suit property. The Courts of facts had believed that as a consideration for the said agreement compromise was entered into in the said partition suit. In other words, the agreement was for a present consideration. Therefore, the same could certainly support the instant contract to transfer. In the result, I hold that the suit had been rightly decreed.
18. The order for execution of the sale deed made by the trial Court and affirmed by the lower appellate Court was not quite appropriate. Therefore, the ordering portion of the judgment of the trial Court requires to be suitably modified.
19. In the above view, I dismiss the appeal subject to the modification that the Defendants be directed to execute and register a deed of transfer in favour of the Plaintiff No. 2 in respect of ka schedule property within one month from this date mentioning therein that the consideration for the transfer was the compromise in the partition suit mentioned in the judgment. In case the Defendant fails to execute and register the said deed within the aforesaid time, the Plaintiff No. 2 would be at liberty to get the same done through Court. Rest of the directions of the trial Court regarding execution and registration of the deed, however, are maintained.
20. There will be no order as to costs.
