SHIVJI Vs. RAGHUNATH DEAD

JUDGEMENT

(1.) This appeal by special leave arises from the judgment of the single Judge of the High Court of M. P., passed on August 28, 1985 dismissing the second appeal.

(2.) The appellant is a subsequent purchaser from Smt. Reshambai, wife of Ramaji Gujar. The admitted facts are that the deceased respondent and Reshambai had purchased jointly, an extent of 9 acres 2 decimals of land under sale deed dated August 26, 1966. There was a contemporaneous agreement of sale executed by Reshambai in favour of the appellant agreeing to convey her share in the property under the sale deed in terms of the agreement to the respondent. Pursuant to the sale, it is not in dispute, there was an oral arrangement under which the parties came to be in respective possession of the land comprised in the sale deed. When Reshambai attempted to sell the land to the appellant, notice was issued by the respondent on January 20, 1969 calling upon her to execute the sale deed in terms of the agreement of sale. In her reply dated January 24, 1969, she denied having agreed to sell the land to him and refused to execute the sale. Reshambai also denied her liability to execute the sale deed. As a consequence, the respondent has filed the suit for specific performance. The defence taken in the suit was that the agreement of sale was fraudulent document brought into existence to defeat her right and that she was not liable to execute the sale deed. The other defence taken was that the document was void by operation of rule against perpetuity. Further contention raised was that since the agreement put an embargo on her right to alienate the property, it was void. All the Courts below have negatived her right and decreed the suit. Thus this appeal by special leave.

(3.) The question is:whether the document, viz., agreement to sell was executed by playing fraud on her Finding of fact recorded by all the Courts is in the affirmative. Therefore, it need not be considered by this Court. Further the defence that the suit also puts perpetual restriction on her right of alienation and is, therefore, void, also has no force for the reason that once Reshambai was found to have executed the agreement for sale and the same was found to be a valid deed, the covenant became a contract between the parties. As a consequence, it is not a prohibition on her right to alienate the property to anybody except the respondent. On the other hand, it is a fetter on her right to deal with her share in the property and a liability burdened with the land. When the respondent purchased the property, being a subsequent purchaser, he purchased it with notice of the said agreement for sale. So he could not get any valid title unless it is proved that the agreement was unenforceable. So the agreement is valid and binds the appellant and Reshambai.