INDUBEN ASHOKRAO NALVADE Vs. DHIRAJLAL SHIVLAL SURATI

JUDGEMENT

(1.) Leave granted.

(2.) By consent of learned advocates of parties the Civil Appeal is heard finally and is being disposed of by this judgment. This appeal arises out of the judgment of High Court of Gujarat dismissing First Appeal No. 803 of 1982 and confirming the judgment and decree dated 2nd May 1981, passed by the learned Civil Judge, Senior Division, Bharuch in Special Civil Suit No.22 of 1977. The appellants before us are the heirs of original plaintiff while the respondents are the original defendants. We will refer to the appellants and respondents as plaintiff and defendants respectively for the sake of convenience in the latter part of this judgment.

(3.) A few relevant facts for highlighting the grievance of the plaintiff are required to be noted at the outset. The original plaintiff Induben Nalvade who died during the pendency of proceedings before the High Court and who is represented by her heirs, the present appellants, had filed Special Civil Suit No. 22 of 1977, in the Court of learned Civil Judge, Senior Division, Bharuch for specific performance of an agreement dated 16th July 1974, executed by defendants in her favour for sale of the suit property situated at Darjiwad locality of Ankleshwar town of Bharuch District. Her case is that the defendants are brothers. They are owners of the suit house bearing City Survey No.3112, Municipal No.433 situated in the aforesaid locality of Ankleshwar town. That on 12th March 1974, the defendants had agreed to sell the Chowk and one attached room to the plaintiff for Rs. 12,000/-. She further alleged that she paid Rs. 4,000/- to the defendants by way of earnest money. According to her the defendants had agreed to execute a registered Sale Deed in her favour on or before 16th August 1974, and that she had to pay the remaining amount of Rs. 8,000/- at the time of execution of the registered Sale Deed. It was her case that she was occupying a part of the property as a tenant while the other portion of the house was in possession of another tenant. That the defendants had mortgaged the suit house with one Nanalal Chhaganlal of Nainpur Village, Tehsil Mahemdabad of Kera District and they wanted to redeem the suit house. It is her further case that on 16th July 1974, the defendants came to her and suggested that they were prepared to sell the entire suit house for Rs. 16,000/-. That she agreed to the above terms and on the same day, that is, 16th July 1974, she paid Rs. 12,000/- in cash to the defendants. She further alleged that thereafter the defendants had to execute the registered Sale Deed after redeeming the mortgage. That on the 16th July 1974, the defendants accordingly executed another agreement to sell the suit house in favour of the plaintiff. According to her she being a Maharashtrian lady was not knowing Gujarati language and she could not properly read or write the said language. That the defendants took undue advantage of this situation and in the agreement dated 16th July 1974, did not mention about the receipt of Rs. 16,000/- by way of total consideration, nor did they mention that they had agreed to sell the entire suit house to the plaintiff but they wrongly mentioned in the agreement to sell that only half portion of the Wada and the room on the ground floor of the property was agreed to be sold to her. According to the plaintiff the defendants redeemed the suit house but they did not show their willingness to execute registered Sale Deed in her favour. That the plaintiff came to know that defendants had cheated her and so she filed a criminal complaint against the defendants. She also gave a notice dated 2nd March 1977 and called upon them to execute a registered Sale Deed in her favour of the entire suit property. As the defendants did not comply with the same she filed the suit for specific performance of the agreement to sell the entire suit house to her. She also prayed for award for damages as the defendants committed breach of contract. She alternatively prayed for a decree for Rs. 16,000/- against the defendants.