MARIA PIEDADE DSOUZA Vs. M NARAYANASWAMY

JUDGEMENT

(1.) This appeal by defendants 1 to 7 is directed against the judgment and decree dt. 3-6-1982 passed by the XV Addl. City Civil Judge, Bangalore, in OS 44 of 1980 on his file, decreeing the suit of the plaintiff as prayed for.

(2.) The plaintiff instituted a suit for specific performance of an agreement to sell dt. 18-2 1960, marked as Ex.-P 1. The agreement, according to him, was entered into by J.F.D'Souza, since deceased. He died on 156 1960. The 1st defendant is the widow of J. F. D'Souza and defendants 2 to 7 are his children. As the executant of the agreement J.F. D'Souza died on 15-6-1960, the suit was instituted against the heirs who represent the estate of D'Souza, for specific performance of an agreement to sell the suit property. According to the plaint averments J. F. D'Souza, agreed to sell the suit property absolutely to the plaintiff for a consideration of Rs. 4,000. He advanced Rs. 2,500 towards consideration and agreed to sell the property to the plaintiff on receipt of the balance. The plaintiff was given time of 5 yeas, within which he had to pay the money and get the sale deed executed. The plaintiff, according to him, was ever ready and willing to perform his part of the contract. When notice was issued to the defendants, they did not comply with the request and hence he instituted the suit for specific performance of the agreement to sell. The defendants resisted the suit. They denied that the deceased J. F. D'Souza, executed the agreement Ex. P 1. They put the plaintiff to strict proof of the execution of the agreement. They further stated that the suit was barred by time. They denied the consideration received and the alleged agreement set up. According to them J. F. D'Souza left a will dated 5-11-1959 in favour of Amelia Corrla and hence she was also a necessary party to the suit. The will was probated in Misc. 60/61 on the file of the Dist. Judge, Bangalore. The plaintiff did not file any objections to the issue of probate.

(3.) The proceeding has a history. The suit was first instituted in the Court of the I Munsiff, Bangalore, at OS No. 288 of 1965. There was a decree in favour of the plaintiff. The defendants appealed against the decree to the Court of the Civil Judge, Bangalore City in RA No. 81 of 1973. The appeal was dismissed on 31-3 1973. The unsuccessful defendants took up the matter to this Court in RSA No. 775 of 1973. which was disposed of by this Court on 4 6-1979 allowing the appeal and remanding the suit to the trial Court with a direction to raise an additional issue as specified in the judgment and to dispose of the suit in the light of the observations made therein. That is how the suit came up before the City Civil Judge and it was renumbered as OS No. 44 of 1980.