Dr. Mohammad Hossain Vs. Abdul Malek Khan, 32 DLR (AD) (1980) 24

Case No: Civil Appeal No. 32 of 1979

Judge: Kemaluddin Hossain,

Court: Appellate Division ,,

Advocate: MR. SR Pal,Mr. SS Halder,,

Citation: 32 DLR (AD) (1980) 24

Case Year: 1980

Appellant: Dr. Mohammad Hossain

Respondent: Abdul Malek Khan

Subject: Specific Performance,

Delivery Date: 1979-8-23

 
Supreme Court
Appellate Division
(Civil)
 
Present:
Kemaluddin Hossain, C.J.
Ruhul Islam, J.
Badrul Haider Chowdhury, J.
 
Dr. Mohammad Hossain
……………........Appellants
Vs.
Abdul Malek Khan
...........................Respondent
 
Judgment
August 23, 1979.
 
Partition Suit
Specific Performance of Contract
Once there is a legal right, the remedy will be available according to the right. It could not be said that when a transferee is in possession of a property in part performance of the con­tract and that contract has been affirmed by a decree for specific performance of contract, the transferee after the decree does not ac­quire an interest in the land. He can lawfully maintain and protect his possession and in­terest in the property.
The rights of the parties acquired under the decree are the same and they are in joint possession. What is sought is to enjoy the property in severally for convenience. In such circumstances, a partition suit is the proper remedy. We, there­fore, do not find any want of competence in this suit for partition……….(8)
Possession may be of different kinds which may give rise to various kinds of rights and obligations when such right is infringed or threatened the remedy will be available relative to the right acquired…………..(11)
 
Cases Referred to-
Joydeb Agarwala vs. Baitulmal Karkhana Ltd., (1964) 16 DLR (SC) 706; PLD. (1965) S.C 37, 18 DLR 691; Aminul Islam vs. M/s Kilburn & Co Ltd,; Abdul  Karim   vs. Fazal Muham­mad Shah 19 DLR (SC) 477; Jnan Chandra Das vs. Rajani Kanta Pal A.I.R 1918 Cal 923; Musammat Sundar vs. Musammat Parbati 16 IA 187; Joydeb Agarwala vs. Baitulmal Karkhana Ltd., (1964) 16 DLR (SC) 706; PLD. (1965) S.C 37.
 
Lawyers Involved:
S. R. Pal, Senior Advocate, with Habibur Rahman, Advocate, instructed by S.S. Hoda, Advocate-on-Record—For the Appellants.
S.S. Haider, Advocate, instructed by Aminul Huq, Advocate-on Record—For the Respon­dent,
 
Civil Appeal No. 32 of 1979
(From the Judgment and Decree dated 15-12-76 passed by the High Court in F.A. No. 195 of 1974)
 
JUDGMENT
Kemaluddin Hossain, C. J.
 
The defendants are the appellants. The facts in dispute are not much and they may be set out in a few words.
 
The plaintiff and the two defendant-appel­lants earlier brought a suit for specific perfor­mance of contract against Kamal Rani Devi and got a decree in that suit and it was put in to execution. In the earlier suit and in the present it is not disputed, that the considera­tion money was Tk. 30,000/- and it was paid on two occasions by instalment of TK. 15,000/- and on the earlier occasion Tk. 15,000/- was paid through defendant 1. The three persons, the plaintiff and the two defen­dants got a joint decree on a single contract which was silent as to the shares of the ven­dors. Neither in the contract nor in the de­cree is there any mention of the proportion of the sum paid by the vendors. It is to be observed that all the three vendors are in possession of the property on the basis of a con­tract on which the decree for specific perfor­mance has been obtained. Disputes arose bet­ween the plaintiff and the defendants as to extent of shares. Plaintiff claimed 1/3rd share which was denied by the defendants, and this denial impelled the plaintiff to institute the present suit which was contested mostly on two grounds. First, as to the quantum of share of the plaintiff, whether it was 1/3rd or 1/6th; and, secondly, the suit for partition by the plaintiff was incompetent. The trial Court negatived the first part of the claim of the plaintiff, holding that his contribution was to the extent of 1/6th and on the second qu­estion, the contention of the defendants on the competency of the suit was overruled. He, therefore, decreed the suit in preliminary form. On appeal by the plaintiff the learned Judges of the High Court allowed the appeal and raised tae share of the plaintiff to 1/3rd.
 
Leave was granted on the two questions on which the suit was mainly contested.
 
2. Mr. Pal the learned Counsel for the appellants contends that the learned Judges of the High Court were in error in finding 1/3rd share for the plaintiff by applying the rule of equal proportion containing in second para­graph of section 45 of the Transfer of Pro­perty Act. It is true that the learned Judges of the High Court applied the rule, but in so applying they have fully considered the evidence called by both sides and have found that the plaintiff's two witnesses, plaintiff him­self and P.W. 2 Abdul Latif Sheikh have asser­ted that the plaintiff paid a sum of Tk. 10,000/- on two occasions, and thereafter the learned Judges have discussed all the six defence, witnesses and on a balance of evidence, came to the conclusion that the defendants had not been able to prove payment of only Tk. 5000/- by the plaintiff of-the consideration money. In coming to this conclusion the learned Judges have also referred to the pleadings of the par­ties. So apart from the application of the rule contained in section 45 of the Transfer of Property Act the learned Judges have found on fact, that the plaintiff has proved payment of Tk. 10,000/- whereas defendants have failed to prove their case of payment of Tk. 5000/- only. In this state of evidence and on discus­sion of the evidence by the learned Judges, we do not find any scope for this Division to in­terfere with this finding.
 
3. We now come to the second question which though apparently attractive does not seem to have much substance. It is with regard to the competency of the partition suit filed by the plaintiff-respondent. Mr. Pal's argument will be looked into presently. Before that, let us take the question on the facts as they stand. The plaintiff and the defendant are the three vendees on a contract and the defendant are the three single vendees on a single contract and they have paid Tk, 30,000/- towards the consideration money and obtained a decree for specific performance of contract from the Court and the decree is un­der execution though not executed. The par­ties in terms of the contract were and are in possession of the property. It is therefore to be seen that what is the right acquired by the plaintiff and the defendants in the earlier decree for specific performance which has not been fully executed. It is true that if the decree for specific performance would have been executed in full, the Kabala would have been in favour of the decree-holders and they would have become the title holders of the land which was agreed to be conveyed under the contract and affirmed by the decree.
 
4. The problem before us is what is the right acquired by the parties under the decree for specific performance of contract which has not been executed. If the parties have ac­quired a right which the law recognizes then the fundamental principle of jurisprudence is that where there is a right there must be a remedy.
 
5. It is therefore to be seen what is the right acquired by the parties in the decree for specific performance of contract and whether the partition of the land is the proper re­medy. It is now well settled that apart from the ownership or legal title to the land, many diverse kinds of right are crea­ted by various kinds of possession of pro­perty. To illustrate some, it may be men­tioned that, section 53A of the Transfer of Property Act gives a legal sanction to posses­sion obtained in part performance of a written contract. Here particular right is recog­nised by statute but no specific remedy is laid down. Similarly section 9 of the Specific Relief Act does not specifically create any right but provides a remedy to a possessor to recover his possession, if he is wrongfully dispossessed in terms of section. These two provisions amongst others are instances of sta­tutory provision but they are by no means exhaustive. Courts of law have in the infi­nite relations between persons and property found different kinds of rights arising from contract or otherwise and provided remedies as to the nature of the case and justice of the cause.
 
6. One or two illustrations will clarify the proposition. Mr. Haider has cited the autho­rity of 18 DLR 691 the case of Aminul Islam vs. M/s Kilburn & Co Ltd, where a Division Bench of the High Court has held that if a possessory owner is wrongfully de­prived of the thing by a person other than the true owner he can recover it. Then in the case of Abdul  Karim   vs. Fazal Muham­mad Shah 19 DLR (SC) 477,  the Sup­reme Court of Pakistan has held the  mere failure of the parties to comply with the re­quirements of section 54 of the  Transfer of Property Act cannot alter the  nature of the transaction between the vendor and the ven­dee or affect the pre-emptor's right in respect of it and if the transaction amounts to a sale in fact, then notwithstanding that  it is not in the form prescribed by section 54 of the Transfer of Property Act, the right of pre-emption will come into operation. In Jnan Chandra Das vs. Rajani Kanta Pal A.I.R 1918 Cal 923 a Division Bench of the Calcutta High Court found that where the plaintiff got possession on payment of entire consideration for its purchase under a con­tract of sale, but before the conveyance was registered, the land was sold and was pur­chased by the defendant in execution of a money decree against the plaintiff, the plain­tiff at the date of the auction purchase by the defendant had acquired a  right to the land which passed to the defendant under the sale in execution so that the plaintiff could not contend that he had no interest in be seen that what is the right acquired by the plaintiff and the defendants in the earlier decree for specific performance which has not been fully executed. It is true that if the decree for specific performance would have been executed in full, the Kabala would have been in favour of the decree-holders and they would have become the title holders of the land which was agreed to be conveyed under the contract and affirmed by the decree.
 
4. The problem before us is what is the right acquired by the parties under the decree for specific performance of contract which has not been executed. If the parties have ac­quired a right which the law recognises then the fundamental principle of jurisprudence is that where there is a right there must be a remedy.
 
5. It is therefore to be seen what is the right acquired by the parties in the decree for specific performance of contract and whether the partition of the land is the proper re­medy. It is now well settled that apart from the ownership or legal title to the land, many diverse kinds of right are crea­ted by various kinds of possession of pro­perty. To illustrate some, it may be men­tioned that, section 51A of the Transfer of Property Act gives a legal sanction to posses­sion obtained in part performance of a written contract.  Here particular right is   recog­nised by statute but no specific remedy is laid down. Similarly section 9 of the Specific Relief Act does not specifically create any right but provides a remedy to a possessor to recover his possession, if he is wrongfully dispossessed in terms of section. These two provisions amongst others are instances of sta­tutory provision but they are by no means exhaustive. Courts of law have in the infi­nite relations between persons and property found different kinds of rights arising from contract or otherwise and provided remedies as to the nature of the case and justice of the cause.
 
6. One or two illustrations will clarify the proposition. Mr. Haider has cited the autho­rity of 18 DLR 691 the case of Aminul Islam vs.  M/s Kilburn  & Co Ltd, where a Division Bench of the High Court has held that if a  possessory owner is wrongfully de­prived of the thing by a person other than the true owner he can recover it. Then in the case of Abdul  Karim vs. Fazal  Muham­mad Shah 19 DLR (SC) 477,  the Sup­reme Court of Pakistan has held the mere failure of the parties to comply with the re­quirements of section 54 of the  Transfer of Property Act cannot alter the  nature of the transaction between the vendor and the ven­dee or affect the pre-emptor's right in respect of it and if the transaction amounts to a sale in fact, then notwithstanding that  it is not in the form prescribed by section 54 of the Transfer of Property Act, the right of pre-emption will come into operation. In Jnan Chandra Das vs. Rajani Kanta Pal A.I.R 1918 Cal 923 a Division Bench of the Calcutta High Court found that where the plaintiff got possession on payment of entire consideration for its purchase under a con­tract of sale, but before the conveyance was registered, the land was sold and was pur­chased by the defendant in execution of a money decree against the plaintiff, the plain­tiff at the dose of the auction purchase by the defendant had acquired a right to toe land which passed to the defendant under the sale in execution so that the plaintiff could not contend that he had no interest in the property which could be purchased by the defendant at the execution sale and that he was not entitled to recover the property from the defendant on getting a registered conveyance from its former owner after the defendant's purchase. These are only some of the authorities referred to in support of the proposition stated above, that according to the nature and character of possession the rights acquired by the parties will determine the remedies available to him.
 
7. Multiplication of these instances is un­called for, but, one relevant decision for our purpose may also be referred to: Musammat Sundar vs. Musammat Parbati 16 IA 187 is a case where two Hindu widows were found to be in lawful possession of the pro­perty of their deceased husband, and a case of division of their properties having arisen, the question was whether a partition suit was competent. Holding its competency, the Privy Council observed, that the widows were in lawful possession of their husband's proper­ties and though they had no title, still they by lawful possession had an estate or interest in respect of their   possession and so can maintain the partition suit. The facts were that the appellant and the respondent were two Hindu widows of Baldeo Sahai and they were seised of movable and immovable pro­perties left by their husband. Baldeo Sahai had adopted one Praimsukh, his sister's son who had died after the death of Baldeo. The widows however were in lawful possession but had no title, whereas either the heirs of Praimsukh or Baldeo Sahai had pre­ferable title. In the context of these facts, the Privy Council held in favour of the com­petency of the partition suit. This is a very good illustration of the principle, where there is a right, there is a remedy. This decision is also an authority for the proposition that to maintain a partition suit the parties to the suit though must have community of interest, yet need not have a legal title.
 
8. If we revert to the facts of the pre­sent case to see what right has been acquired under the decree, it is seen that the decree-holders of the suit for specific performance of contract were in possession of the property in part performance of the contract, and their contract has now been affirmed by a decree for specific performance of contract. It can, therefore, be legitimately said that the decree-holders of the suit for specific perfor­mance of contract   did acquire an interest in the land which is equivalent to a legal right in the property. The dispute between the decree-holders is to determine their shares, and then to demarcate their respective shares on the land which they are holding jointly. In the earlier suit, it was not decided as to which proportion the decree-holders contribu­ted towards the purchase price of the pro­perty. The plaintiff in this suit set up a claim to 1/3rd, whereas the defendants to 1/6th share and that has now finally been determined at l/3rd on appeal. If determi­nation could be made by the Court, and it is not disputed, then the consequential relief of partition could not be resisted.  The rights of the parties acquired under the decree are the same and they are in joint possession. What is sought is to enjoy the property in severally for convenience. In such circumstances, a partition suit is the proper remedy. We, there­fore, do not find any want of competence in this suit for partition.
 
9. The contention of Mr. Pal that in a suit for specific performance of contract un­less the decree is executed and the Kabala obtained no, legal title vest in the decree-holders as a legal proposition, is not in dis­pute. The answer is that, apart from legal title to a property, there may be various spe­cies of possessory or other legal rights created on the property which can be enforced. Once there is a legal right, the remedy will be available according to the right. It could not be said that when a transferee is in possession of a property in part performance of the con­tract and that contract has been affirmed by a decree for specific performance of contract, the transferee after the decree does not ac­quire an interest in the land. He can lawfully maintain and protect his possession and in­terest in the property.
 
10. Mr. Pal, however, has rightly pointed out that the view expressed in the case of Joydeb Agarwala vs. Baitulmal Karkhana Ltd., (1964) 16 DLR (SC) 706; PLD. (1965) S.C 37, to the extent that upon an execution of a contract of sale of a property, the pur­chaser acquires an equitable estate is not a correct proposition of law, inasmuch as it is directly against the provision of section 54 of the Transfer of Property Act which says that the contract for sale of immovable pro­perty is a contract that a sale of such pro­perty shall take place on terms settled be­tween the parties and does not create any interest in or charge on such property. In view of the specific statutory provision appli­cation of English doctrine of equitable estate in favour of a contracting party to a sale of immovable property is not permissible. But then correctness of the view taken in that case in the sense that it created a right in favour of the decree-holder the fact of the case cannot be questioned.
 
11. Mr. Pal's contention is that without acquisition of title a partition suit is not sustainable. We have already observed that possession may be of different kinds and categories and may give rise to various kinds of rights and obligations and according to the nature of the right recognised by law, remedies will be available to the parties when the right is either infringed or threatened and the remedy will be relatable to the right ac­quired by the plaintiff and the infringement or the violation complained of. Beyond this no further general formulation is either neces­sary or desirable. We have decided the ques­tion on the facts before us.
 
In the result, we dismiss the appeal with­out any order as to costs.
 
Ed.