CHAND RANI MEHRA Vs. OM SHANKAR MEHRA

JUDGEMENT

(1.) By this suit Smt. Chand Rani Mehra, the plaintiff herein seeks specific performance of the agreement to sell dated 31st July, 1985, whereby Shri Om Shankar Mehra, the defendant herein, who had described himself as the owner of the property, had agreed to sell that property bearing No. 4397 (old No. 2457), Chandni Chowk, Delhi, for a sum of Rs. 1,30,000.00.

(2.) The defendant has admitted the execution of the said agreement. By his order dated the 17th April, 1986, the Joint Registrar, therefore, exhibited the Agreement as Ex. P. 1. The defendant has further admitted in the written statement that a sum of Rs. 30,000.00 was paid to him by the plaintiff on the date the agreement was executed by way of earnest money. It is averred that the defendant did apply to the Income-tax authorities for the grant of clearance to execute the sale deed, which was granted on 7th August, 1985 and accordingly informed the plaintiff about it. The claim for specific performance and possession of the property is, however, contested on the ground that the property in question belongs to the HUF; that in fact the defendant was under the impression that he had right to execute the sale deed on behalf of the HUF; that as one of his sons Shri Shiv Shankar was not ready to join him in execution of the sale deed, the defendant who has only l/4th share in the property is unable to execute the sale deed. It is denied in the written statement that the defendant did not perform his part of the contract. It is further claimed in the defence that the agreement (Ex. P. 1) was cancelled on llth September, 1985. In this connection the plea is that the plaintiff on coming to know that the property was of HUF and that one of the sons of the defendant was unwilling to execute the sale deed, approached the defendant for a settlement but the negotiations failed on 11th September, 1985. It is useful to quote relevant portion of para 4 of the written statement:

(3.) I recorded the statement of the defendant herein on 20th August, 1986 under R. 2, 0. 10, Civil P.C. In the said statement he has shown his willingness to sell the property in question as per Ex. P. 1. He has further admitted that so far the property in question had not been shown as that of HUF and that he had never been assessed as a Karta of the HUF although individually he was being assessed to income-tax. The said statement reads as follows :