BIBISAHEBT Vs. MAKTUM HUSSIANSAB

JUDGEMENT

(1.) This appeal by defendant-4 is directed against the judgment and decree dated 17-7-1974 passed by the Civil Judge, Hubli, in RA No. 87 of 1971, on his file dismissing the appeal with modification in the form of the decree.

(2.) The plaintiff filed a suit for specific performance of an agreement under Ex. 50 dated 7-11-1961 executed by defendants 1 to 3 agreeing to sell the southern portion of properties bearing C. T. S. Nos. 1955 and 1956 in Ward No. 3 of Mubli. It is the further case of the plaintiff that the suit properties formerly belonged to one Chamansab Wallad Ameensab Dharwad. Chamansab mortgaged the suit properties with possession to the plaintiff on 4-4-1952 for a sum of Rs. 1000. The suit properties have been in the possession and enjoyment of the plaintiff since then. After the death of Chamansab, defendants 1 to 3, who are his heirs, executed Ex. 50 agreeing to sell the suit properties in favour of the plaintiff for a sum of Rs. 3000 and received a sum of Rs 1000 as earnest money and passed the receipt Ex. 51. The further case of the plaintiff is that it was agreed between them that the balance of Rs. 900 should be paid before the Sub-Registrar at the tme of the registration of the sale deed in respect of the suit properties He further averred that he was ready and willing to perform his part of the contract and called upon defendants 1 to 3 by a notice (Ex. 58) dt. 17-8-1963 to perform their part of the contract. They failed to execute the sale deed On the other hand, the plaintiff came to know that they had sold the suit properties to defendant-4. under Ex 62 on 21-11-1963. The plaintiff has averred that defendant-4 purcha- sed the suit properties fully knowing that there was an agreement to sell as per Ex. 50 executed in favour of the plaintiff. In the circumstances, the plaintiff instituted the suit for specific performance of the agreement to sell against defendants 1 to 4.

(3.) Defendants 1 to 3 resisted the suit contending inter alia that time was the essence of the contract, that the plaintiff did not act in terms of the contract within the stipulated time, that the contract was, therefore, rendered void, that the plaintiff did not pay Rs. 1000 as alleged and that therefore, the suit was liable to be dismissed.