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TMI Blog1927 (6) TMI 1X X X X Extracts X X X X X X X X Extracts X X X X ..... and give rational answers, he was incapable of sustained or independent mental efforts owing to senile decay. He made an order of the appointment of a guardian for the defendant. This order was set aside by the High Court in revision which directed a fuller enquiry on the question of unsoundness of mind or mental infirmity for reasons stated in the order. Before this enquiry could be held the defendant died and his legal representatives were substituted in his place as stated above. 2. The substituted defendants filed lengthy written statements contesting the plaintiff's claim. Their main plea was that Kali Narain was not of sound mind and certain other questions, were also raised. A large number of issues were framed by the Subordinate Judge, but the principal questions were dealt with by him under issues 3, 5, 6 and 10. After a very elaborate discussion of the evidence and the circumstances of the case, the Subordinate Judge came to the following conclusions on the first three issues stated above : (1) that Kali Narain did not contract to sell the disputed properties to the plaintiffs ; (2) that his mind was so much enfeebled and impaired by age and disease' that Kali ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... although the plaintiffs might be entitled to damages. The appellants object to this point being raised before us on the ground that it is a new one. 4. Before I take the points for decision I must express my strong disapproval of the manner in which the case was conducted in the Court below. Hundreds of pages of depositions of witnesses have been recorded a good deal of which was admitted in the lower Court to be useless and a considerable portion of which was not at all referred to by counsel on either side before us. Although in the elaborate and careful arguments addressed to us, both sides tried their beat to avoid irrelevant matters, still the mere act of finding the relevant pages caused much useless waste of oar time. It reflects little credit on the practitioners who conducted the case in the Court below that they went on examining witnesses for days and days to no purpose and which was not at all for the benefit of their clients. 5. Kali Narain, the defendant, was a zamindar having his residence at a village called Bandar in the district of Dicca within Naraingunj sub-division. His income was about ₹ 12,000 or ₹ 15,000 a year and it appears his family was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aircopied by a mohurir of defendant and the document was executed on the 4th December 1920, by the defendant and made over to the plaintiffs who paid ₹ 11,000 out of the purchase-money. The document was presented at the registration office at Comilla for registration as the properties were situated within that district. A commission was issued to the Sub-Registrar at Dacca who went to the defendant's house, and before him defendant admitted execution of the document on the 10th December 1920, on which admission it was registered. The defendant went back to Bandar at the beginning of January 1921. When the plaintiffs went to Bandar with the balance of the purchase-money and desired to have the kobala executed, they were not allowed to see the defendant, and hence the suit. On behalf of the respondents it is contended that, although the onus of proving unsoundness of mind so as to invalidate a contract is on the party who alleges it, the respondents have succeeded in proving it as the lower Court has found. The question does not depend merely on belief or disbelief of the witnesses examined before the Court, but depends largely upon the inference to be drawn from the eviden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case, even if the defendant is considered to be of such weak intellect, there was ample protection with reference to the transaction. There were his sons, two of his officers and his own lawyer. Disinterested third persons were also there. No advantage was taken of his alleged weakness but very good value was secured for the property. The question may be looked at from the point of view indicated in the case of a pardanashin lady by Lord Sumner in the recent case, in the Privy Council, of Farid-un-nissa v. Mukhtar Ahmad where the onus was on the person claiming under the deed. His Lordship observes as follows: It must be a question whether, having regard to the proved personality of the settlor, the nature of the settlement, the circumstances under which it was executed, and the whole history of the parties; it is reasonably established that the deed executed was the free and intelligent act of the settlor or not. If the answer is in the affirmative, those relying on the deed have discharged the onus which rests upon them. 8. As I have already said, even if the defendant was of weak intellect there was full independent advice which would sustain the transaction, and I find n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the vendor and purchaser will not be binding on Government. But when the vendor tells the purchaser that he would have to pay a certain amount of revenue for the portion purchased and the purchaser a accepts it, I do not see any difficulty in the matter. That agreement would be binding on the parties. If the vendor asks for a larger sum, the net profits would diminish; if a smaller sum, it would increase. The plaintiffs say that the revenue payable' was settled according to the amount in printed notice Ex. 1. It is, however, urged by the respondents that it has not been proved that the notice was issued under the authority of Kali Narain. But in fixing the price in the bainapatra the collections and the revenue must have been settled somehow. The defendants do not say that it was with reference to any other papers. They do not also say that the net collections are different or that the price calculated at 33 times the net income would be different. I am unable to see that there is any vagueness in the contract. It is argued that it does not appear that the price of the third item in the bainapatra was taken into account. The evidence of Chandra Kumar Chakrabarty (at p. 103) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o not think the principle applies. In the case cited the purchaser did an act, however innocently, by asking the seller's attorney to bid for him, by reason of which the vender was placed at a disadvantage and the property was knocked down at a low price. Here the purchasers were strangers who were only offering the price they were prepared to pay. They did not do anything to induce the agents of Kali Narain to get the property for them at a low price. They were negotiating directly with Kali Narain. If Kali Narain closed the bargain with them they were not to blame. But the fact is that the Majidpur Babus did not at once offer to pay any higher price on hearing about the bainapatra. They tried at first to share the property with the plaintiffs 6r to buy them off. It was only after some days, when they failed in their attempt, that they offered 35 years' purchase and then 40 years' purchase. If specific performance is not allowed to a purchaser on the grounds that another person offered a higher price after the contract was concluded, then I think in no case can specific performance be allowed to a purchaser. Because, in the majority of such cases, the vendor is unwilli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... properties to the plaintiffs if the Majidpur Babus who appear to be influential zemindars, had not offered a higher price after failing to buy off the plaintiffs or getting a share of the properties from the plaintiffs by paying a proportionate share of the price for which the plaintiffs had contracted to purchase. The defendants have not shown that the net income of the property is higher than what is stated by the plaintiffs, and there are no materials on record on which it may be held that the purchase-money should be more than what is stated in the bainapatra. It should, therefore, be held that the price given in that document is the proper price. 16. On these grounds, I would set aside the judgment and decree of the Subordinate Judge and decree specific performance of the contract embodied in the bainapatra dated the 4feh December 1920. 17. The appeal is decreed with costs in both Courts. The cross-objection is dismissed without costs. Roy, J. 18. After stating the facts as given in the judgment of B.B. Ghose, J. his Lordship proceeded. The simple question for decision now is whether specific performance should be enforced. The evidence is voluminous. The evidence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... endant, and by some of the other witnesses, is that Kali Narain's mind was gone by the end of 1325 B.S., that is to say by April 1919. This is Krishna Kumar's statement on p. 139 of part 1 of the paper book: From the latter part of 1325 onwards till his death my father had no capacity to understand the terms of a document and why the deed was being executed and its effect upon his interests. 21. Mr. Sircar contends that on the evidence it should be held that Kali Narain's incapacity dated from towards the end of 1919. I think it would be convenient to follow the learned Subordinate Judge in his discussion of the various incidents. (His Lordship then dealt with evidence and proceeded.) Within a few days of Kali Narain's arrival at Dacca, and while he was staying with his son-in-law, Satis Kabiraj, Kali Narain executed a will. We are not concerned actually with the validity of the will, but it has some bearing on the case. By this will (there was a previous will as it appears) Kali Narain made a provision of ₹ 150 a month for his wife for her life and he gave each of his two daughters (Satis Kabiraj's wife and Kadambini) ₹ 15 a month for their li ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or from a cultivator, who was produced to depose what a zemindari can fetch. Ordinarily 33 years' purchase is a high price and that is the opinion of Ananda Babu himself, a great landlord apparently. Mr. Sircar referred to the evidence of Annoda, the present manager, that a bazar had been established and the income derivable from it had not been taken into account or that the khas lands were ignored and-so forth for his argument that the whole income had not been taken into consideration. We cannot rely only upon: Annoda's evidence. The collection papers and other papers were available and could have been produced. It is common ground that the sale was to be on so-many years' purchase of the sthit and it is well understood what the sthit or annual profits connote. The sthit was given in the notice and Chandra Kumar's evidence is that he examined the talab baki. If there was anything wrong in the notice it could have been shown to be wrong. It was argued that Ananda Babu's evidence shows that he did not understand that 10 per cent, would be deducted for collection charges. He was labouring under an error and he himself says he may have been mistaken. The net pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the consequence of the act which he had done. 28. This really disposes of the matter. It seems hardly necessary to refer to the evidence of the Civil Surgeon, Colonel Macgilvie, who examined Kali Narain on the 23rd and 26th April 1922, and found his mind a blank. Another retired Civil Surgeon, Kumar Bhabendra Narain, examined Kali Narain on the 17th, 18th and 19th April 1922, and he found that Kali Narain had still some mind left. This, was nearly 18 months after the bainapatra. Mr. Sircar's contention was that, regard being had to the evidence of Colonel Macgilivie of the state of Kali Narain's mind in April 1922, regard being had to the observations of the Subordinate Judge who examined Kali Narain personally on 14th September 1921, and regard being had to the testimony of Colonel Newman who examined Kali Narain on 24th and 26th January 1921, and seeing that senile dementia is a progressive disease, it is a legitimate inference that Kali Narain was of unsound-mind at the time of the contract. Mr. Sircar referred also to certain passages in the evidence of Guru Charan and his man Chandra referred to by the Subordinate Judge. They are plaintiff and his man, and they we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ged, however, that joar panchkitta is a compact property and it is not shown that the properties mentioned in the contract are outside joar panchkifcta. Kali Narain seems to have bought back a share of taluk within the mahal, and touzi No. 1706 bears a revenue of ₹ 12 only. Since Kali Narain was selling all he had in joar panchkitta it is intelligible how these properties came to be mentioned in the bainapatra. Then again it was urged that it is not shown how the revenue was apportioned. People do sell parts of touzis and the vendor makes the estimate of the proportionate revenue on the basis of the proportion of collections. This was the method followed in the notice. The purchaser has accepted it. It is not shown that the apportionment was wrongly made. 30. Mr. Sircar has discussed a number of cases. This case is pre-eminently one for decision on facts, and the cases referred to do not appear to us to be of any great assistance. The cases were quoted for the purpose of showing that the Court can exercise a greater discretion when it is a suit for specific performance and note merely for rescission and for the purpose of establishing that the Courts have interfered in cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was not convinced that a better price would not have been reached. Here we have the case of a private sale; Satis Kabiraj's conduct has been the subject of attack because he did not inform other intending vendors about the terms offered by the plaintiffs. We know that other people made better bids or said they would have if they had known, as in the case of Rai Mohan Poddar, only after the event. Haggling had been going on and Kali Narain's wife and Satis seem to have got a very handsome price from the plaintiffs. 32. The case of Clowes v. Higginson [1813] 1 Ves. B. 527 referred to in connexion with the contention that khas lands, etc., had not been taken into account. In the case quoted there was controversy whether certain timber was included in the contract or not and suits brought by the vendors to resile from the contract and by the purchaser for specific performance of the contract were both dismissed because the parties were not agreed as to the actual terms. The contract in this case was on the sthit or net income and anyone connected with the zamindari knows that the sthit includes all available income. The oral evidence produced cannot be accepted when the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tranger and negotiated in good faith and paid earnest money, are entitled to specific performance. It cannot be said that they could or did take any advantage in the bargain made openly and in consultation with the vendor's numerous friends. For the above reasons, I agree with my learned brother in decreeing the appeal with costs in both the Courts. <!--[if gte mso 9]> Normal 0 false false false EN-IN X-NONE <![endif]--><!--[if gte mso 9]> < ..... X X X X Extracts X X X X X X X X Extracts X X X X
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