Specific Performance Decree Cannot Be Granted Without Proper Proof of Agreement to Sell Homestead Property: High Court
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| Supreme Court of Bangladesh |
The High Court made these observations while setting aside the specific performance decree granted by the lower courts in a case involving an alleged agreement to sell land.
Justice Abdur Rahman, sitting as a single-judge bench of the High Court Division, delivered the judgment on 3 September 2026 in Most. Ambia Khatun vs Most. Halima Begum and Others (Civil Revision No. 3407 of 2024). The full judgment was published on the Supreme Court website on 5 November 2026.
Background of the Case
According to the case records, defendant Ambia Khatun purchased the disputed land through two registered deeds executed in 1981 and 1982. She subsequently built a house on the land and lived there with her family. The plaintiffs claimed that in 1990, she offered to sell the property because she needed money for her daughter's wedding.
The plaintiffs claimed that an agreement to sell was executed on 14 October 1990, fixing the sale price at Tk 300,000. Of this amount, Tk 200,000 was allegedly paid in advance, with the remaining Tk 100,000 to be paid within three months. They alleged that despite their readiness to pay the balance, the defendant failed to execute and register the sale deed. Consequently, they filed a suit seeking specific performance of the contract.
On the other hand, Ambia Khatun claimed that she had borrowed only Tk 50,000 from the plaintiffs to meet her daughter's wedding expenses. As security for the loan, she had signed some stamp papers and handed over the original title deeds of the property. She alleged that the plaintiffs later used those signed papers to fabricate a false agreement to sell and attempted to take possession of her land. She maintained that the disputed property was her family's homestead, where she lived with her children.
High Court's Observations
The High Court observed that the agreement stipulated a period of three months for completion of the transaction. Although the agreement was allegedly executed on 14 October 1990, the plaintiffs sent a legal notice through their lawyer only on 3 December 1991 and filed the suit on 1 August 1993. In other words, no legal action was taken within the three-month period stipulated in the agreement. The lower courts had failed to properly consider this important issue.
The Court further noted that three minors had been included as parties to the agreement on behalf of the plaintiffs, but no legal guardian had executed the agreement on their behalf. Under Section 11 of the Contract Act, 1872, a person must be of the age of majority and legally competent to enter into a contract. Therefore, the validity and enforceability of the agreement required proper examination.
According to the Court, an essential issue in a suit for specific performance should have been whether the agreement was legally valid and enforceable. However, the trial court had failed to frame an appropriate issue on this point. Proper framing of issues based on the pleadings and written statements of the parties is fundamental to ensuring a fair trial. Failure to include a material disputed question among the issues may undermine its proper adjudication.
The Court also observed that the disputed property was the defendant's homestead, where she lived with her children. A witness for the plaintiffs had admitted this fact during cross-examination. Although the plaintiffs claimed that the defendant owned other land and shops, they failed to produce sufficient evidence to substantiate that claim.
The High Court also found significant inconsistencies concerning the preparation of the agreement, the testimony of witnesses, the circumstances in which the document was allegedly executed and the relevant records. The plaintiffs did not produce any of the six alleged witnesses to the agreement before the court. The notary public was also not examined. These important matters had not been properly considered by the lower courts.
Specific Performance Is a Discretionary Remedy
Referring to Section 22 of the Specific Relief Act, 1877, the High Court observed that granting a decree for specific performance is a matter of judicial discretion. Even where an agreement is duly proved, a court is not automatically bound to grant specific performance.
In particular, if enforcing an agreement would cause the defendant unexpected hardship or prejudice that would not have arisen for the plaintiff had the agreement not been enforced, the court may refuse to grant specific performance. The court must consider justice, equity and the practical circumstances of the parties.
The High Court further observed that the lower courts had placed excessive reliance on the plaintiffs' evidence without properly evaluating the defendant's evidence and relevant documents. The appellate court had also upheld the trial court's decision without independently analysing the evidence. As a result, misreading of evidence, failure to consider material facts and improper framing of issues had led to a failure of justice.
Lower Court Judgments Set Aside in Revision
The High Court observed that under Section 115(1) of the Code of Civil Procedure, a revisional court does not ordinarily reassess evidence as if it were hearing an appeal. However, it may intervene where the lower courts have committed jurisdictional errors, material illegality, misread evidence or made serious procedural errors resulting in a failure of justice.
Considering these circumstances, the High Court made the Rule absolute. It set aside the decree passed by the 2nd Court of Joint District Judge, Chattogram, in Other Class Suit No. 76 of 1993, as well as the judgment and decree passed by the 1st Court of Additional District Judge in Other Appeal No. 272 of 2005. Consequently, the plaintiffs' original suit for specific performance was dismissed.
However, as Ambia Khatun admitted receiving a loan of Tk 50,000, the Court directed her to repay that amount to the plaintiffs. She was ordered to pay Tk 50,000 along with simple interest at the rate of 8 per cent per month, calculated from 14 October 1990 until the amount is deposited, within 60 days of the judgment and order reaching the trial court. If she fails to make the payment within the stipulated period, the amount may be recovered through execution of the decree, with compound interest accruing from 14 October 1990 until realisation.
There was no order as to costs.
BD Law Post/Masum
