{"id":105742,"date":"1950-03-14T00:00:00","date_gmt":"1950-03-13T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/gorakhram-sadhuram-vs-laxmibai-wife-of-inderlal-nandlal-on-14-march-1950"},"modified":"2017-09-06T05:25:46","modified_gmt":"2017-09-05T23:55:46","slug":"gorakhram-sadhuram-vs-laxmibai-wife-of-inderlal-nandlal-on-14-march-1950","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/gorakhram-sadhuram-vs-laxmibai-wife-of-inderlal-nandlal-on-14-march-1950","title":{"rendered":"Gorakhram Sadhuram vs Laxmibai Wife Of Inderlal Nandlal on 14 March, 1950"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Gorakhram Sadhuram vs Laxmibai Wife Of Inderlal Nandlal on 14 March, 1950<\/div>\n
Bench: S. Fazal Ali, M.P. Sastri, M.C. Mahajan, B.K. Mukherjea, S.R. Das<\/div>\n
           CASE NO.:\nAppeal (civil)  38 of 1948\n\nPETITIONER:\nGORAKHRAM SADHURAM\n\nRESPONDENT:\nLAXMIBAI WIFE OF INDERLAL NANDLAL\n\nDATE OF JUDGMENT: 14\/03\/1950\n\nBENCH:\nS. FAZAL ALI  & M.P. SASTRI  & M.C. MAHAJAN  & B.K. MUKHERJEA & S.R. DAS \n\nJUDGMENT:\n<\/pre>\n
JUDGMENT<\/p>\n
AIR 1953 SC 443<\/p>\n
The Judgment was delivered by :\n<\/p>\n
MAHAJAN J. : This is an appeal from a judgment and decree of the High Court
\nof Judicature at Bombay dated 26-1-1948 reversing the decree passed by
\nChagla J. on 7-7-1947.\n<\/p>\n
2. The suit was brought by one Laxmibai, wife of Inderlal Nandlal of Malad
\non 26-5-1943 for specific performance of an agreement dated 29-4-1929, said
\nto have been arrived at between her and Messrs. Gorakhram, Sadhuram, a firm
\ncarrying on business at bankers and commission agents at Kalbadevi Road,
\nBombay. By the agreement the defendants were to transfer the bungalow in
\nsuit at Malad to the name of the respondent whenever demanded on payment of
\ncosts of such transfer and were to debit the sum of Rs. 40, 000 the value
\nof the bungalow, to the current account of the firm of Messrs Thackersidas
\nNandlal, of which the plaintiff’s husband and father-in-law were the owners
\nand which firm was indebted in a large amount to Messrs. Gorakhram
\nSadhuram.\n<\/p>\n
The principal defence to the suit was that the plaintiff was not a party to
\nthe agreement and could not therefore sue upon it. It was also pleaded that
\nthe suit was barred by S. 66, CPC, but no. issue was raised on the point
\nand the plea was later on abandoned. In spite of the abandonment of the
\nplea, the point was argued at the hearing.\n<\/p>\n
3. Chagla J. dismissed the plaintiff’s suit and held that the plaintiff not
\nbeing a party to the agreement, could not claim specific performance of it.
\nHe further held that the suit was barred by S. 66, CPC This decision was
\nreversed in appeal by Bhagwati and Tendolkar. JJ. on the finding that the
\nplaintiff was a party to the agreement and was ready and willing to perform
\nher part of the contract. It was further held that the suit was not barred
\nby S. 66 CPC. Chagla J. has also held that the plaintiff was not ready and
\nwilling to perform her part of the contract inasmuch as her husband was not
\nin a position to pay the sum of Rs. 40, 000, the price fixed for the
\nconveyance of the house.\n<\/p>\n
This aspect of the case, however, was not pressed before the Court of
\nappeal by the counsel for the respondent and was not agitated before us.
\nHaving regard to the terms of the agreement which was arrived at between
\nthe parties, the defendants were bound on being called upon to do so, to
\ntransfer and convey the property to the name of the plaintiff, she being
\nunder an obligation to pay the costs, charges and expenses in connection
\ntherewith. The consideration money of such transfer, i.e. Rs. 40, 000 had
\nto be debited on account of the firm. There was no. question whatever of
\nany cash payment having to be made by the firm or its partners.\n<\/p>\n
4. Mr. Setalvad contested the judgment of the High Court in appeal on three
\ngrounds. (l)That the High Court had erroneously held that the plaintiff was
\na party to the contract and could claim specific performance of it. It was
\ncontended that this finding was not supported by evidence on the record and
\nreally ran counter to it. (2) That the suit was barred by S. 66, CPC. (3)
\nThat specific performance being a discretionary relief and the position of
\nthe parties having altered since 1929, the Court should not specifically
\nenforce the agreement after a period of over 14 years.\n<\/p>\n
5. In order to judge the propriety of these contentions it is necessary to
\nstate a few facts. The plaintiff’s husband and father-in-law effected a
\nnumber of mortgages in favour of the appellant firm the first of them
\nhaving been made on 20-9-1922. This mortgage comprised the property in
\ndispute which is a bungalow at Malad, a suburb of Bombay. In the year 1925
\na suit was brought on this mortgage and a preliminary decree passed in
\nfavour of the appellant on 15-4-1925. This was made absolute on 8-4-1926.
\nProceedings in execution of the final decree were pending when on 28-8-1929
\nthe agreement in dispute was made.\n<\/p>\n
The terms of the agreement are contained in two letters dated 29-8-1929 and
\n30-8-1929. The letters are in these terms : –\n<\/p>\n
I<\/p>\n
“To Shahji Gorakhramji Sadhuramji. Please read Jaigopal (salutations) of
\nNandlal and Inderlal Nandlal. Further, our two ginning factories and one
\npressing factory together with the compound etc. at Panderkowda which were
\nmortgaged with you for Rs. 3, 15, 000 are sold by us to you for Rs. 3, 15,\n<\/p>\n
000. We shall execute any documents which you may ask us to do at the time
\nyou got the same transferred to your name. Further the house at Kalbadevi
\nin Bombay, the home at Gaiwadi and the bungalow at Malad which have been
\nmortgaged for Rs. 540, 000 are sold by us for Rs. 4, 40, 000 as follows : –
\nThe house at Kalbadevi l, 15, 000 and the bungalow at Malad for Rs. 40,\n<\/p>\n
000.<\/p>\n
Further, you have obtained a decree against us and also obtained an order
\nfor auction sale by the Commissioner. Whether you get the properties
\nauctioned or sold, we shall agree to both these things. Whenever you ask us
\nto execute any documents in respect thereof, we shall do the same. We shall
\nnot raise any objection.\n<\/p>\n
Further, you will have to get bungalow one in number at Malad transferred
\nto the name of the mother of Chiru Kanhaiyalal Devda. Whatever expenses
\nincurred in that behalf will be borne by her. You will please debit Rs.
\n40.000 to us. And our diamond ring one in number is pledged with you. The
\nsame shall have to be given to the mother of Chiru Kanhaiyalal. Please
\ndebit Rs.1, 500 in respect thereof to us.\n<\/p>\n
Further, as regards monies that may remain due to you under the mortgage
\nand current accounts, we shall pay the same, to you whenever we can.
\nFurther, our heir shall not be entitled to raise any objection in this
\nbehalf. He shall have to agree to all these
\narrangements…………29-8-29.”\n<\/p>\n
II<\/p>\n
” To Shahji Nandlalji Thakerseydasji and Inderlalji Nandlalji. Please read
\nJaigopal (salutations) of Gorakhram Sadhuram. Further, your letter dated
\n10th of Bhadarva Vad (i.e. 30-8-1929) is received. What is stated therein
\nis agreed to by us. You have asked us to get transferred bungalow 1 at
\nMalad to the name of Shah Kanhaiyalalji’s mother and to give one diamond
\nring to her. We agree to the same whenever you ask us to get the bungalow
\ntransferred to her name, we shall do so at your costs. We shall give one
\nring of diamond to her 30th or 31st August 1929.”\n<\/p>\n
In pursuance of this arrangement the diamond ring was given by the
\nappellants to the plaintiff respondent within a month or two of its date.
\nOn 30-4-1930 the appellants purchased the Malad house at the auction sale.
\nThe sale was confirmed on 4-7-1930 and a sale certificate was obtained by
\nthe appellants in their name but the cost of the stamp for the sale
\ncertificate was paid on behalf of the plaintiff by her husband or father-
\nin-law but out of her money.\n<\/p>\n
It is common ground now that the plaintiff was put in possession of the
\nhouse soon after and she placed her furniture in it, effected repairs and
\npaid the taxes. As a matter of fact, the taxes were paid by the appellants
\nand subsequently recovered in cash from the plaintiff either directly or
\nthrough her husband. Considerable amount was spent by her in effecting
\nimprovement to the house and she remained in possession of it and even now
\nis in possession of it. When she demanded a conveyance from the appellant
\nfirm, they declined to do so with the result that the plaintiff had to
\nbring this suit.\n<\/p>\n
6. After confirmation of the sale of this property and other properties the
\nappellants obtained a personal decree against the mortgagors on 18-8-1930
\nin the sum of Rs. 5, 89, 000 with future interest. In the year 1931 the
\nplaintiff’s father-in-law died. Her husband was adjudicated insolvent a few
\nmonths after the institution of the suit.\n<\/p>\n
7. The first question for determination is whether in view of the contents
\nof the two letters above mentioned and the oral evidence in the case it can
\nbe held that the plaintiff was a party to the contract in respect of the
\ndiamond ring and the Malad house. The letter of 29-8-1929 in clear terms
\nstates that the bungalow was to be transferred in the name of the plaintiff
\nand the expenses of the conveyance were to be borne by her and that the
\ndiamond ring was to be given to her. The letter of acceptance given by the
\nappellants accepted this proposal. It proceeded however to state that
\nwhenever the mortgagors asked the bungalow to be transferred in the name of
\nthe plaintiff it will be done at their cost and the ring will be given to
\nher.\n<\/p>\n
The letters are not formal legal documents and no. question was raised that
\nthe parties were not ad idem about the terms of the arrangement. There can,
\nhowever, be no. question that the intention of the parties was as expressed
\nin the first letter that plaintiff would have to pay the costs of the
\nconveyance and get it executed in her name. The appellants agreed to this.
\nIn the letter of acceptance the appellants were treating the mortgagors and
\ntheir family including the plaintiff as one group because it is obvious
\nenough that the transfer of the house in the name of the plaintiff was with
\nthe intention of benefiting her, her children, and, as a matter of fact,
\nthe whole family. As regards the ring, she was the sole promisee as it
\nbelonged to her.\n<\/p>\n
8. The oral evidence in the case consists of the depositions of three
\nwitnesses, namely, the plaintiff, her husband, Inderlal Nandlal, and her
\nson Kanhaiyalal. All the witnesses unanimously stated that the arrangement
\nwhich was finally evidenced by the two letters above mentioned was made at
\na meeting held at the Kalbadevi house of the mortgagors in the presence of
\nall the family members. The creditors were represented by their muneem
\nMurlidhar who unfortunately is dead and therefore could not appear in the
\nwitness box.\n<\/p>\n
Kanhaiyalal deposed that he was sitting near his father and grandfather and
\nMurlidhar and that his mother was sitting nearby in an adjoining room, that
\nthe plaintiff told him that as the accounts were being settled she should
\nget the house to give in and some jewellery, that as instructed by his
\nmother, he went and communicated this to Murlidhar. It was not denied that
\nshe is a purdanashin lady and would not herself take part in any
\nnegotiations. She could only speak through her son or her husband and the
\nquestion as to whether she was a party to the agreement or not has to be
\ndecided not on the basis that she herself actively took part in the talk
\nbut on the basis that she was vitally interested in the agreement that she
\ndemanded the house for herself and the creditor’s representative made
\ncertain stipulations with her though the actual talk on her behalf was done
\nby her son or husband.\n<\/p>\n
The evidence amounts to this that a demand was made by the plaintiff from
\nthe creditor for the house and the jewellery and the reply was that it had
\nbeen decided to give her the ring and the Malad house and to this she
\nassented. The plaintiff in her statement deposed that she and Murlidhar
\nagreed to the transfer of the Malad house in her name and also as to the
\nring, that she agreed to pay the costs of the transfer, that Murlidhar was
\nsitting opposite to her and though he was not willing to give the house and
\nthe ring to her husband and father-in-law on the ground that they were
\nspeculators, he was prepared to give them to her if she wanted both these
\nthings. The statement of the plaintiff read as a whole shows that she was a
\nparty to the negotiations that were being carried on with the creditor on
\nbehalf of the family and was not present there as a mere silent spectator.\n<\/p>\n
The creditor’s representative was interested in arriving at a settlement of
\nhis claim with the whole family and not only with the two mortgagors. It
\nwas the family property that had been mortgaged and was going to be sold in
\nexecution of the mortgage decree. The decree-holders in order to avoid any
\nobjections to sale of joint family property either by the debtors on by
\ntheir son or by the plaintiff, thought it prudent to make an arrangement to
\nwhich all members of the family were parties so that they might not harass
\nthem in execution proceedings and in bringing to sale the property. It
\nwould not have been to their advantage to enter into an arrangement only
\nwith the mortgagors because it would then be open to the other members of
\nthe family who had claims on the joint family property to raise all kinds
\nof objections to the sale of the property. It was to avoid these objections
\nthat this arrangement was arrived at.\n<\/p>\n
The mortgagors were quite willing to part with the mortgaged property but
\nthe other members of the family would not have joined this arrangement
\nunless they got some benefit out of it, and were able to salvage part of
\nthe joint family estate for themselves and their descendants and also for
\nthe comfortable living of the mortgagors as well. If this arrangement was
\nonly going to be with the two debtors, then it was unnecessary for the
\ncreditor’s representative to come for this purpose to the residential house
\nof the debtors and meet all the members of the family at a conference.\n<\/p>\n
Plaintiff’s presence at the meeting suggests that it was intended to bind
\nher with the terms of the arrangement by giving her the ring and the house,
\nso that later on she may not raise any objection claiming the ring as her
\nstridhana property and making a claim for the house for her residence. It
\nwas also thought to have the son there because he might claim that the
\nmortgages had been made for debts which were not binding on him because
\nthey had been incurred not for family purpose but for speculation. In view
\nof these circumstances I am not prepared to disbelieve the plaintiff when
\nshe states that she and Murlidhar agreed to the terms incorporated in the
\nletter as regards the house and the ring.\n<\/p>\n
Chagla J. though he accepted her evidence as to the facts stated by her,
\nwas not prepared to hold on that statement that actually the agreement was
\nmade between her and Murlidhar. He thought that the arrangement made
\nbetween the husband and the father-in-law of the plaintiff and Murlidhar
\nwas only communicated to her. We have carefully read the evidence of the
\nplaintiff and we consider that she has given her statement in a
\nstraightforward manner and we see no. reason to disbelieve her statement
\nwhen she says that both she and Murlidhar agreed to the terms of the
\narrangement. The clause in the debtors’ letter that she would be liable for
\npayment of costs of the conveyance could not have been entered in it
\nwithout her consent. About the ring, it was she and she alone who would
\nhave been keen to get it and without her demand having been met the
\namicable settlement could not have been made.\n<\/p>\n
9. The plaintiff’s husband, Inderlal Nandlal, also deposed that Murlidhar
\nhad told his wife that the diamond ring and the house would be given to her
\nwhenever she wanted them and that it was agreed that she would pay the cost
\nof the transfer of the Malad Property in her name. Mr. Setalvad laid
\nconsiderable stress on certain statements elicited in his cross-
\nexamination. The witness said that the plaintiff did not understand
\naccounts & was not present when the accounts were being settled, that
\nMurlidhar was not willing to give anything to him and to his father, but
\nthat he was willing to transfer the house to his wife, that he and his
\nfather agreed not to object to the auction sale if Murlidhar agreed to
\ntransfer the Malad house to his wife’s name, and that the terms of the
\nagreement were settled between Murlidhar on the one hand and by him and his
\nfather on the other and that his wife was present in the room.\n<\/p>\n
It was urged that according to this statement the agreement was really made
\nbetween Murlidhar and the plaintiff’s husband and father-in-law and that
\nthe plaintiff’s statement that she had arrived at an agreement with
\nMurlidhar about the house and the ring cannot be accepted as true. We do
\nnot see any force in this contention. On the materials on the record it
\ncannot be doubted that the demand for the diamond ring and for the release
\nof the house from the mortgagees emanated from the plaintiff.\n<\/p>\n
Whether that demand was conveyed to the creditor’s representative directly
\nby her or through her son or husband is not very material because such a
\nprocedure would be in keeping with the habits and modes of the life of the
\npeople who were transacting the business. It also cannot be doubted that
\nthe creditor’s representative was not prepared either to give the ring or
\nthe house to the mortgagors who would not have retained these things for a
\nvery long time and the very purpose of giving them would have been
\ndefeated. Thus the promise to give the house and the ring could only have
\nbeen made to the person who made the demand and that person therefore would
\nbe the promisee under this agreement as regards these two items of
\nproperty.\n<\/p>\n
The creditor’s representative, whether directly in conversation with her or
\nby an open declaration in her presence, made a promise to the plaintiff
\nthat the house and the ring would be given to her. That she did become the
\npromisee under his contract is clearly proved not only by the oral evidence
\nbut from the recital in the first letter in which it was clearly stipulated
\nthat she would pay the costs of the conveyance. It was in the status of a
\npromisee that the conveyance had to be executed in her name. This
\nconstruction of the agreement is fully supported by the conduct of the
\npromisers immediately after the contract had been made.\n<\/p>\n
The promisors started performing their promise within two months of its
\nhaving been made by directly handing over the ring to the plaintiff
\nregarding which demand was conveyed to them by her through her husband. As
\nsoon as they succeeded in buying the property at the auction sale, they
\ncalled upon the promisee who had undertaken the obligation to pay the
\nexpenses of the conveyance through the proper channel, to meet the stamp
\nexpenses in connection with the sale certificate. They further allowed her
\nto occupy the property. The two Courts below have found that the defendants
\nhad incurred the expenses of payment of municipal taxes, etc., concerning
\nthe bungalow but that the recovered these amounts from the plaintiff. That
\nfinding is supported by the oral evidence on the record.\n<\/p>\n
The defendants also stood by and allowed the promisee through her husband
\nto spend considerable sums of money on repairs and remodelling of the
\nhouse. In all respects the defendants fully fulfilled their part of the
\npromise but defaulted in executing the conveyance. When the whole promise
\nhas been substantially fulfilled and it only remains to pass legal title by
\nthe execution of a conveyance, the objection raised as to the plaintiff not
\nbeing a party to the contract seems to be fulfil. It was expressly agreed
\nthat the conveyance would be executed in her name and she was therefore
\nentitled to demand that. The decision of the High Court therefore on this
\npoint is affirmed and the contention of Mr. Setalvad negatived.\n<\/p>\n
10. The contention that S. 66, Civil P.C. bars the suit has, in our opinion
\nno, substance whatever. The appellants when they purchased the house at the
\nauction sale were buying the property for themselves. They had undoubtedly
\nentered into an agreement with the plaintiff that when they purchased the
\nproperty at the auction sale they would convey it to her but that is not
\nmaterial for the application of S. 66. The property was purchased by them
\nfor a sum of Rs. 20, 000. The conveyance to the plaintiff has to be for a
\ndebit of Rs. 40, 000. The plea of benami purchase in such a situation could
\nnot be sustained and was rightly rejected by the High Court in appeal. The
\nappellants purchased the property for themselves so that by acquiring it in
\ntheir name they may be able to fulfil their agreement of sale with the
\nplaintiff. In these circumstances, the provisions of S. 66 do not operate
\nas a bar to the suit.\n<\/p>\n
11. The last contention of Mr. Setalvad is equally without force. To all
\nintents and purposes the plaintiff has been in possession of the house
\nsince the date of the agreement. She has incurred all the expenses in
\nrespect of taxes etc., she has made repairs in the house without any
\nobjection and has spent considerable sums of money on it and she has been
\nresiding in it. All that is now required is a formal document of title in
\nher favour. The contention therefore that the suit is a belated one and
\nthat the position of the mortgagors has altered cannot be a ground to
\ndefeat her suit, particularly when the appeal court has granted her the
\nrelief claimed by her.\n<\/p>\n
12. It was argued that the plaintiff could also maintain the suit as a
\nbeneficiary if she was not a party to the contract. It is unnecessary to
\nexamine this contention in view of the decision that she was actually a
\nparty to the agreement and could maintain the suit.\n<\/p>\n
13. The result therefore is that this appeal fails and is dismissed with
\ncosts.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Gorakhram Sadhuram vs Laxmibai Wife Of Inderlal Nandlal on 14 March, 1950 Bench: S. Fazal Ali, M.P. Sastri, M.C. Mahajan, B.K. Mukherjea, S.R. Das CASE NO.: Appeal (civil) 38 of 1948 PETITIONER: GORAKHRAM SADHURAM RESPONDENT: LAXMIBAI WIFE OF INDERLAL NANDLAL DATE OF JUDGMENT: 14\/03\/1950 BENCH: S. FAZAL ALI & M.P. SASTRI […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-105742","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nGorakhram Sadhuram vs Laxmibai Wife Of Inderlal Nandlal on 14 March, 1950 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/gorakhram-sadhuram-vs-laxmibai-wife-of-inderlal-nandlal-on-14-march-1950\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Gorakhram Sadhuram vs Laxmibai Wife Of Inderlal Nandlal on 14 March, 1950 - 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