Surendra Nath Roy v. Kedar Nath Bose

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1935 SCC OnLine Cal 231 : AIR 1936 Cal 87
Calcutta High Court

(BEFORE D.N. MITTER AND PATTERSON, JJ.)
Surendra Nath Roy … Plaintiff Appellant;

Versus
Kedar Nath Bose and others … Defendants Respondents.
Appeal No. 49 of 1932
Decided on September 8, 1931 and December 13, 1935
The Judgment of the Court was delivered by
D.N. MITTER, J.:— This appeal arises out of a suit for specific performance of a
contract to sell. The plaintiff is the purchaser in whose favour the contract has been
entered into by defendant 1. The suit has been dismissed by the Subordinate Judge.
Hence the present appeal by the plaintiff. The case of the plaintiff is that defendant 1,
Kedar Nath Bose, who is now the owner of a portion of the house known as Raja
Bahadur's Haveli purported to sell the portion which is still left with him for a sum of
Rs. 7,000. The case is that the contract to sell was entered into between the present
plaintiff and the son of Kedar Nath Bose, Kali Das who has been described throughout
these proceedings as Felu whom Kedar Nath Bose empowered to deal in the matter of
the sale. The plaintiff in pursuance of certain correspondence to which reference will be
made hereafter sends his kinsman and nephew Rash Behary Roy to the residence of
defendant 1 at Calcutta, and according to the direction of defendant 1, he (Rash
Behary) on 30th January 1930, corresponding to the 16th
Page: 88
Magh 1336 B.S. having settled with Felu to purchase for Rs. 7,000, the price proposed
by defendant 1, sent a wire to the plaintiff for sending the earnest money. Accordingly
a sum of Rs. 100, was sent to Harendra, son of the plaintiff, on 31st January 1930 by
telegraphic money order and Harendra and Rash Behary paid that sum of Rs. 100, to
Felu as earnest money as directed by defendant 1, and Felu accepted the same. It is
stated that defendant 1 is legally bound by the acceptance of his son who was given, if
not an express at least an implied, power to deal with the matter of sale and accept
any offer that would be made. The plaint then narrates certain circumstances on which
the plaintiff submits that Kedar ratified the acts done by his son even if there was no
express or implied authority by Kedar in the matter of sale. He has accordingly prayed
for a decree for specific performance of the contract of 30th January 1930 directing the
defendants to execute a Kobala of out and out sale in favour of the plaintiff free from
incumbrances and to get it registered within the time to be fixed by the Court. There
is an alternative prayer, namely, that in case the defendants failed to execute the
Kobala within the time fixed by the Court, the Court would proceed to execute and
register such a Kobala in favour of the plaintiff in that behalf. The suit impleaded not
only defendant 1, the vendor, but also defendants 2 and 3 as it is said that they are
purchasers subsequent to the contract, their purchase having been effected on 14th
March 1930. It is stated in the plaint that the purchase of defendants 2 and 3 was
with notice of the earlier contract in favour of the plaintiff. In consequence of
defendants 2 and 3 having been impleaded the plaintiff has asked for a further
declaration that the Kobala of 14th March 1930 corresponding to the 30th Falgoon
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1336 B.S. executed by defendant 1 in the name of defendant 3 one Komola Datt
Chowdhurani, wife of defendant 2, was not binding on the plaintiff and for a further
declaration that no title had accrued to defendants 2 and 3 on the basis of the same.
Defendant 4 is said to have been a lessee under defendants 2 and 3. But the suit as
against him has been dismissed as will appear from an order in the order sheet.
2. The defences to the suit for specific per formance of contract are (1) that there
was no completed contract on 30th January 1930 or on a subsequent date prior to the
conveyance in favour of defendant 3 and that whatever talk there was between the
plaintiff and defendant 1 or his son that talk did not pass beyond the stage of
negotiation and could not constitute contract specifically enforceable and (2) that
defendants 2 and 3 are purchasers without notice. It may be said in this connexion
that these defendants have also set forth in their written defence a contract with an
agent of defendant 1, namely Surendra Nath Bose who figures very largely in this
case, entered-into on 1st February 1930, alleging that the sale on 14th March was in
pursuance of the contract of 1st February 1930 and even if it be held that there was a
ratification of the agreement by Felu (son of defendant 1) on 7th February 1930,
defendant 3's purchase should prevail in view of the earlier contract of 1st February
1930. The Subordinate Judge has given effect to these defences and has dismissed
the suit. The plaintiff has consequently preferred the present appeal and Mr. Atul
Chandra Gupta for the appellant has contended before us that the Subordinate Judge
should have held that the contract set up by the plaintiff dated 30th January was a
valid contract with defendant 1 by which he agreed to sell the properties now in
question. It is contended that he should have further held that Felu, the son of Kedar,
was empowered by Kedar to accept any offer that Felu could get and that he did really
accept the offer by receiving Rs. 100 by way of earnest money. It has been further
argued that apart from the question of Felu's authority to accept the offer and to
receive the earnest money the Subordinate Judge should have held that Kedar ratified
the acceptance of the offer of the plaintiff by Felu. It has been further contended that
in so far as the defendants' case with regard to the contract executed by the
Ammukhtear of the plaintiff, Surendra Nath Basu dated 1st February 1930 is
concerned, the agreement entered into on that date was really an ante-dated
agreement for defeating the rights of the plaintiff. In order to consider the soundness
or otherwise of these contentions on which Mr. Atul Chandra Gupta proposes to rest
the appeal on behalf of his client it is necessary to refer to
Page: 89
the oral and documentary evidence which has been given in this case on behalf of both
the parties. In support of the contention of the appellant that there has been a valid
contract between them, the plaintiff and defendant 1 on 30th January 1930, our
attention has been drawn to two letters, namely, Ex. 1 dated 24th January 1930 and
Ex. 3 dated 26th January 1930, which have been printed at pp. 7 and 8 of the second
part of the paper-book respectively. It appears that on 24th January 1930, the present
plaintiff wrote to defendant 1 to the following effect. It is only necessary to quote the
material portion. The plaintiff writes thus:
The news for the present is that I hear that you would sell your house in Raja
Bahadur's Haveli at Barisal and that some one would come here on 14th Magh and
settle the terms thereof (i.e. 14th Magh corresponding to 28th January 1930). I
spoke to my maternal uncle, Khitish Chandra Roy about this matter…. I am ready to
purchase that house. I hope that the terms of sale may not be settled without
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informing me. On arrival at Barisal I may be enquired for at the house of my father-
in-law, Biseswar Ghose. Or if you or Felu come to Barisal, please put up at our
house.
3. This letter was received by defendant 1 on 26th January at about 6-30 p.m. or 7
p.m. and in answer to that Ex. 3 the postcard was written by Kedar Nath Bose which
contains certain important statements:
Glad to receive your letter. I am going to attend the Kumbha Mela at Allahabad
by tonight's train. Yes, I shall sell such portion of the Raja Bahadur's house that I
now have. I have got an offer up to Rs. 6,500. I intend to have Rs. 7,000. If you are
willing to have it, write to Felu to this address. There is no certainty as to when I
shall return. As a matter of fact, nothing shoot of Rs. 6,500, the offer I have already
got, will do; be it whatever in excess. Two or three persons have offered that price.
4. It is contended on behalf of the appellant that this was an offer by Kedar Nath
Bose to sell Raja Bahadur's Haveli or rather such portion of it as has not been sold, for
a sum of Rs. 7,000. On the other hand it has been contended on behalf of the
respondents that this was not an offer at all within the meaning of Section 2 of the
Contract Act, but that was merely an invitation to an offer. We do not think that we
should accede to this contention raised on behalf of the respondents for S. 2(a) states
this:
When one person signifies to another his willingness to do or to abstain from
doing any thing, with a view to abtaining the assent of that other to such act or
abstinence, he is said to make a proposal.
5. Kedar, defendant 1, was by this letter signifying his willingness to sell a portion
of the Raja Bahadur's Haveli now in question for a sum of Rs. 7,000, and be was
communicating his willingness to sell for Rs. 7,000 to the present plaintiff by this
letter. We have therefore no hesitation in repelling the contention made both by the
learned advocates for defendants 1, 2 and 3. This was really an offer or rather a
proposal within the meaning of Section 2 of the Contract Act. It appears from the
evidence that in pursuance of this letter which was received in Barisal on 28th January
1930 in the morning at about 7-30 A.M. which must have been delivered to the
plaintiff say by 9 A.M. The plaintiff sends his son one Harendra and a relation Rash
Behari, as has been mentioned in the plaint, to see Felu, the son of Kedar Nath Bose,
defendant 1. The evidence is that Felu expressed his intention to accept the offer of
Rs. 7,000 for the house and asked that earnest money should be paid. Evidence does
not show that he named any sum for the earnest money.
6. But the evidence of Rash Behari is that he asked for a sum of Rs. 100 which
came by telegraphic money order and this sum was paid to Felu. The Subordinate
Judge has hesitated to believe this part of the case because no receipt for Rs. 100 had
been produced. No doubt the non-production of any receipt is a weak part of the
plaintiff's case, but an explanation has been given by the son as well as by Rash
Behari that they did not out of a sens of delicacy ask for any receipt as both the
plaintiff and defendant 1 are relations's and it is very likely that Harendra was merely
handing over the earnest money of the small amount of Rs. 100 without asking for a
receipt as he was not sufficiently experienced in worldly affairs. As such he did not
perhaps choose to ask for any receipt from a relation of his. It has been said, and in
our opinion rightly said, that the case of want of consideration for the non-production
of the receipt of Rs. 100 has been unduly stressed. In support of this payment we
have the evidence of Rash Behari. We have evidence also of the two pleaders Lal
Mohan Chakravarty and Charu Chandra Roy who state that Surendra Nath Bose, the
agent of defendant 1, admitted before them
Page: 90
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the receipt of the earnest money of Rs. 100. I might just refer in this connexion to the
evidence of these two witnesses which is printed at pp. 164 and 169 of the first part of
the paper-book respectively. Charu Chunder Roy says this:
Surendra Nath Bose told me when the measurements toot place that the price
had been settled at Rs. 7,000. Surendra Bose told me near the shop of Srisli Roy
that Rs. 100 had been paid as earnest money.
7. Lal Mohan Chakravarty says this on the point:
Surendra Bose told Charu Babu that he would find the description of the property
and the boundaries from Srish Balm's Kobala and asked Charu Babu to state in the
draft that Rs. 7,000 had been fixed as the consideration and that out of that sum
Rs. 100 had been received as earnest money.
8. Having regard to the evidence of these two pleaders to the fact that there was
some payment of money by the plaintiff's son to defendant 1, we think we should not
be justified in rejecting the oral evidence on the question that the sum had been paid
more particularly as it appears from the telegraphic money order that a sum of Rs. 100
had been sent by the plaintiff and received by the plaintiff's son in Calcutta. It has
been suggested on behalf of the respondents that the telegraphic money order to Rash
Behari at Calcutta was sent for the purpose of creating evidence of the payment of the
sums for use at a later date. The reason suggested for such a course is that when on
the 14th Magh, corresponding to the 28th January, the plaintiff found that a contract
was going to be entered into on the 1st February with defendants 2 and 3 and
everything had been settled with reference to the contract of defendant 3 and
defendant 2 this telegraphic money order was sent in order to create evidence in order
to avail of the sum when occasion demanded. It is next contended on behalf of the
appellant on this part of the case that the learned Subordinate Judge ought to have
read the facts of this case in the light of the subsequent conduct of the parties some of
which are evidenced by some of the letters proved in this case. With regard to Felu's
authority it is said that some of the letters which passed between the plaintiff and
Kedar Nath Bose, throw considerable light and support the case made in the plaint.
We are referred in this connexion to the letter of 7th February 1930, which has been
marked as Ex. 8, and printed at p. 29 of the second part of the paper-book, written by
Kedar Nath Bose to the plaintiff. This letter is admitted to have been written by
defendant 1. Some of the passages in this letter have to be quoted in extenso, for they
have been referred to for the purpose of showing that by this letter of 7-2-1930 there
was ratification of the acts of Felu and that the letter is the evidence of the fact that
Felu was given an implied authority to deal with the matter of sale. I will only quote
the material portion. The letter runs thus:
Glad to receive your letter. I have returned from Kumbha only these 3 days
since. I don't know what conversations there were with you. But when Sriman Felu
has given his word, then action will be taken accordingly. The papers relating to
that house are with my officer at home Letter has been written to him to come with
these papers. There is also a power of attorney in his name. He will be able to get it
(Kobala) registered….
Towards the end and in the last paragraph it is stated thus:
It is impossible for Sriman Felu to go to Barisal and get the document registered,
because he is the cashier of a Bank and can on no account get leave. If you think it
necessary to have it registered by me it will have to be registered at Calcutta. It
involves an extra expenditure of Rs. 10 only. Consideration money will have to be
paid to me here. No efforts will be spared to complete the transaction at an early
date.
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9. This letter or at any rate the passage which has just been quoted lends support
to the case made by the plaintiff that Kedar gave authority to his son Felu to deal with
the matter of contract of sale in question. At any rate this letter acknowledges the
existence of such a contract. This letter also shows as has been contended for on
behalf of the appellant that there has been in any event ratification of the act of Felu
by defendant 1. Dealing first with the question of implied authority it appears clear
from this letter that Felu was given authority to complete the transaction in connection
with the sale of Raja Bahadur's Haveli. The words “but when Sriman Felu has given his
word then action will be taken accordingly”, can lead to but one inference that by the
previous letter Ex. 3, the post card written by Kedar to the plaintiff, authority was
given impliedly to Felu to deal with the contract or any offer in respect of the sale now
in question. Having regard to what we have found, namely, that this letter of the 26th
February Ex. 8, was followed by the coming up of Rash Behari to Calcutta with the son
of the plaintiff Harendra, and by his conversation
Page: 91
with Felu about the earnest money of Rs. 100, we have no doubt in our mind that it
was a valid and binding contract between the plaintiff and defendant 1's agent or son
Felu with reference to the sale in question for a sum of Rs. 7,000.
10. The payment has been proved by the evidence to which reference has already
been made including the evidence of the two pleaders of Barisal. The burden of
proving this was undoubtedly on the plaintiff and he has discharged that burden by
such evidence as he has given which we consider prima facie proof. It was open to the
defendant to rebut the prima facie proof by production of the best evidence in the
case. It might have been proved by the production of the Jama Kharach papers of
defendant 1 that there was absence of any entry of the payment of Rs. 100.
Notwithstanding the existence of these Jama Kharach books they were not produced;
and an on favorable inference has to be drawn in respect of this payment against
defendant 1 having regard to the admissions made by his agent Surendra. It remains
to consider with regard to the question of the contract an argument which has been
advanced by Dr. Sen Gupta who has appeared for defendant 1 and Which is founded
on the provisions of Section 7 of the Contract Act. It is said that there has been no
acceptance of the offer by defendant 1 seeing that the acceptance by the plaintiff was
not made in the way indicated in the letter of defendant 1, Ex. 3, dated 26th January
1930. It is said by this letter that the only manner in which the acceptance of the offer
could be made was by writing to Felu at the Calcutta address of defendant 1 and by no
other means; and we are referred to S. 7, the material portion of which runs as
follows:
In order to convert a proposal into a promise the acceptance must (1) be
absolute and unqualified, (2) be expressed in some usual and reasonable manner,
unless the proposal prescribes the, manner in which it is to be accepted……
11. The rest of the section is not material for our present purposes. We have to read
this letter in a reasonable and in a sensible manner. When it is said in this letter that
the intending purchaser will have to write to Felu it certainly did not exclude the case
where the intending purchaser instead of writing to Felu put himself into
communication with Felu and that is exactly what the intending purchaser in the
present case did. We do not therefore think that there has been any contravention of
Section 7 of the Contract Act, in this case so as to render the contract not binding
upon defendant 1. Assuming for the purpose of the argument that there was no
implied authority in Felu to complete the transaction of sale or to accept any offer,
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which is made by the intending purchaser of Raja Baliadur's Haveli, we have no doubt
on the correspondence, which we will presently set forth that there has been a
ratification of the acts of Felu by defendant 1 and we have no doubt also, nor can there
be any doubt, that defendant 1 has adopted the acts of Felu in this behalf as his own.
This brings us to refer to the correspondence evidenced by the postcard, Ex. 8, dated
7th February 1930, where Kedar is writing to the present plaintiff this:
Glad to receive your letter. I have returned from Kumbha only these three days
since. I don't know what conversations there were with you. But when Sriman Felu
has given his word, then action will be taken accordingly. The papers relating to
that house are with my officer at home. Letter has been written to him to come with
these papers. There is a power, of attorney in his name. He will be able to gat it
(Kobala) registered.
12. Then follows another passage which has already been quoted and which
concludes by saying: “No effort will be spared to complete the transaction at an early
date.” In our view by this letter Kedar was adopting the acts of his son and was
ratifying his acts in this behalf. It has however been argued on behalf of the
respondents that there can be no ratification unless the person ratifying had full
knowledge of the facts and our attention has been drawn to the provisions of Sections
197 and 198 of the Contract Act. S. 197 runs as follows:
Ratification may be expressed or may be implied in the conduct of the person on
whose behalf the acts are done.
13. Section 198 is to the following effect:
No valid ratification can be made by a person whose knowledge of the facts of
the case is materially defective.
14. It has been sought to be argued that when this letter of 7th February 1930 was
written Felu was not in Calcutta and that therefore Kedar was writing this, having
regard to what was represented to him in a letter written by the plaintiff Surendra
Nath Roy of which this letter of 7th February 1930 is a reply. It is difficult to accede to
this contention that Felu was not in Calcutta
Page: 92
at that time. The last paragraph of the letter which states that “it is impossible for
Sriman Felu to go to Barisal” negatives the alleged fact that Felu was out of Calcutta.
Besides, Felu works in a certain bank and the best evidence as to his absence from
Calcutta on 7th February 1930 would have been the production of the bank attendance
book. But even assuming that Felu was absent and that defendant 1 acted on what
was represented to him in the letter, it appears clear that Kedar did not enquire into
the matter as he should have done and in such circumstances it would be nonetheless
a ratification of his acts and he should be taken to have knowledge of all the
circumstances because he himself did not care to enquire. The rule of law in this
behalf has been very lucidly stated in the decision which has been cited at the Bar in
(1897) 1 Ch 2131 In the judgment of Lord Russell at p. 246 of the report the following
relevant passage occurs:
To constitute a binding adoption of acts a priory unauthorized, these conditions

must exist: (1) the acts must have been done for and in the name of the supposed
principal and (2) there must be full knowledge of what those acts were, or such an
unqualified adoption that the inference may properly be drawn that the principal
intended to take upon himself the responsibility for such acts, whatever they were.
15. Then again at p. 247 of the report the learned Lord Chief Justice observes thus:
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Where the supposed ratification relates to acts as to which there is no pretence

of any priori authority, as in this case, where it is not is question merely of excess of
authority, full knowledge of the facts and unequivocal adoption after such
knowledge must be proved, or, in the alternative, the circumstances of the alleged
ratification must be such as to warrant the clear inference that the principal was
adopting the supposed agent's act whatever they were or however culpable they
were.
16. It appears to us clear from a perusal of the letter of 7th February 1930, that
Kedar was adopting in full the acts of Felu when he said that when Felu has given his
word then action will be taken accordingly. He even went so far as to say that there
would be no delay in completing the transaction which had been entered into by the
son and that there would be no difficulty regarding the registration of the same. Then
again ratification relates back to the time of the inception of the transaction and has a
complete retroactive efficacy: (see Story on Agency, Edn. 9, p. 244); that Kedar knew
all the circumstances would appear from another letter dated 16th February 1930
which has been marked as Ex. (16) in the case and which is printed at p. 31 of the
second part of the paper-hook. It is true that this letter has not been admitted by him
but according to the Subordinate Judge it was written by Kedar. We have examined
the letter, the postcard in original and have compared it with the writing of Kedar in
the other admitted letters and indeed Kedar has been forced to admit in cross-
examination that the writing in the postcard resembles his hand-writing. The
significant passage in this letter which proves ratification is this:
I hear that my son has given word to somebody. He is not here at present. He
will come within a day or two. If he has given any final word, then I shall have to be
bound by that. I do not concern myself with any affairs of the estate, nor I consider
it necessary. I simply take my morning and evening meals and move about here
and there. I can speak to him if yon let me know the amount you are ready to pay,
but then I shall not be able to do anything against his wishes.
17. This letter was addressed to another intending purchaser, one pleader who has
given his evidence in this case, named Uma Kanta Kanjabilla. There has been some
discussion as to the accuracy of the translation of this letter with reference to the
expression “final word” in line about 25 of p. 31 of the second part of the paper book.
We have had the original read to us and we have no doubt that Kedar was speaking
there in a legal language when he said: “if he has given any find word, then I shall
have to be bound by that.” Strenuous endeavour has been made both by Dr. Basak
who appears on behalf of defendants 2 and 3 and Dr. Sen Gupta who appears for
defendant 1 in persuading us to hold that the expressions “final word,” “action will be
taken accordingly” and the further expression “I shall have to be bound by that” are
not words of legal obligation but are words expressive of moral obligation. But no
question of moral obligation arises when Kedar was speaking about a contract for sale
of a house in answer to an inquiry by Uma Kanta, an intending purchaser with regard
to the completion of a legal transaction. In order to substantiate this contention on
behalf of the defendants and in order to convert these
Page: 93
words into moral obligation something also would have to be read into them which is
not permissible. For these reasons we are of opinion that there has been a complete
ratification of the acts of Felu by Kedar Nath Basil, defendant 1, and on this ground
the contract must be sustained. It brings us now to consider the earlier contract of 1st
February 1930 which has been set up on behalf of defendants 2 and 3. (His Lordship
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then discussed the evidence and proceeded). We are not surely unmindful of what has
been repeatedly said by the Privy Council that where the issue is a simple one the
appellate Court should not very lightly discard the appreciation of evidence made by
the trial Court which had the opportunity of seeing the witnesses, hearing them and
watching their demeanour, but in the present case the weight of the admitted
documents in evidence, or the documents in evidence which have been proved, is so
great that we are constrained to differ from the estimate of the evidence by the
Subordinate Judge who has really belittled the effect of the documentary evidence and
we have no hesitation in coming to the following conclusions in this case: (1) that Felu
was given an implied authority by defendant 1 to enter into a contract in reference to
the sale in respect of which the suit for specific performance had been instituted; (2)
assuming in the alternative that he had no such authority, there has been ample
ratification by defendant 1 of his contract by his letter of 7th February 1930; (3) that
the payment of Rs. 100 was made by the plaintiff's son to Felu as alleged and that
Felu accepted the money according to the directions of defendant 1(4) that the alleged
contract of 1st February 1930 was not really entered into on that date but at a much
subsequent date after Surendra Bose had come to Calcutta and that the subsequent
conduct of defendant 1 bears traces of the influence and very considerable influence of
his agent. On these conclusions we think that the decision of the Subordinate Judge
must be set aside and the decree of the Subordinate Judge dismissing the suit must
also be set aside and the plaintiff must be given a decree in terms of the prayers
which he has set forth in the plaint which is to be found printed at p. 32 of the first
part of the paper book. The plaintiff will have costs both of this Court and also of the
Court below. The costs are to be recovered from defendant 1 and defendants 2 and 3,
in equal proportions. The plaintiff must bring into Court below the sum of Rs. 6,900
within a month from this date which event happening, the Court below will proceed to
pass the decree in accordance with prayers Ka, Gha, Uma and Gha of the plaint. In the
event of such payment being made the Court below shall proceed to execute a Kobala
in favour of the plaintiff and have it registered within two weeks from the date of
payment of the money and in that event also defendants 2 and 3 will be able to take
out the whole amount of Rs. 6,900 as it has been conceded on behalf of defendant 1
that defendants 2 and 3 have paid the purchase money. The appeal is allowed with
costs and the cross-objection is dismissed. No order is made as to costs of the cross-
objection. Let the record be sent down as early as possible.
PATTERSON, J.:— I agree.

R.M./R.K.
18. Appeal allowed.
———
1. Marsh v. Joseph, (1897) 1 Ch 213 : 66 LJ Ch 128 : 45 WR 209 : 75 LT 558.
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Page 1 Thursday, November 16, 2023

1935 SCC OnLine Cal 231 : AIR 1936 Cal 87

Calcutta High Court

Surendra Nath Roy … Plaintiff Appellant;

To constitute a binding adoption of acts a priory unauthorized, these conditions

Where the supposed ratification relates to acts as to which there is no pretence

PATTERSON, J.:— I agree.

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