MANJIT SINGH KOHLI Vs. MUNNI DEVI

JUDGEMENT

(1.) This is a suit for specific performance seeking the enforcement of the agreement dated 24th of March 1981.

(2.) On the 24th of March 1981 the plaintiff, Sh. Moti Ram, husband of first defendant now, and father of defendants 2 to 6 entered into this agreement for the sale of the property for Rs.l,50,000.00 the 2.1/2 storeyed building constructed on a leasehold plot of land measuring 100 sq. yds. situated in Lajpat Nagar, New Delhi..According to the plaintiff, he contacted Sh. Moti Ram through M/s. Dhingra Estate Agency. Sh. Moti Ram represented to the plaintiff that he was the sole and absolute owner of the property and he had put up the construction on a leasehold plot. Sh. Moti Ram also assured that there were no encumbrences. On these representations, the plaintiff agreed to purchase the property for a consideration of Rs. l,50,000.00 . On the 24th of March 1981 the agreement was executed and on 25th of March 1981 it was registered in the office of Sub Registrar, New Delhi. In part performance of the said agreement, the plaintiff paid Sh. Moti Ram a sum of Rs. 50,000.00 as advance. Rs. 25,000.00 was paid in cash and the other Rs. 25,000.00 was paid by Pay Order No. 951255 dated 24.3.1981 drawn on Punjab & Sind Bank, New Delhi. For receiving the payment of Rs. 25,000.00 in cash, Sh. Moti Ram issued a receipt and Sh. Moti Ram put the plaintiff in possession of the entire ground floor and also the first and second floors, which are being occupied by tenants. The fact of delivery of possession of the premises is also mentioned in the agreement. Sh. Moti Ram handed over his original title deeds to the plaintiff. The plaintiff in turn deposited the same with the Punjab & Sind Ban G Block, Connaught Place, New Delhi for securing the loan from the bank. Plaintiff is in employment of Punjab & Sind Bank. The bank sanctioned the loan. Sh. Moti Ram promised to obtain necessary permission from the office of the Competent Authority under the Urban Land & Ceilings Act, 1976 and also from the office of the L & D.0 New Delhi at his own costs. Sh. Moti Ram had also to obtain the Income Tax Clearance Certificate for transferring the property in favour of the plaintiff or his nominee. In or about 5.5.1981 Sh. Moti Ram applied Deputy Land & Development Officer New Delhi seeking permission to sell the property along with the leasehold rights. The plaintiff also gave an affidavit stating that he was purchasing the property from Sh. Moti Ram. Sh. Moti Ram had not been acting in accordance with the terms of the agreement and, therefore, the plaintiff issued a telegraphic notice in November 1981. On 30.1.1984 the plaintiff issued legal notice to first defendant. This was after the death of Sh. Moti Ram. The first defendant did not care to give any reply. The plaintiff learnt that defendants 1 to 6 are the legal heirs of Sh. Moti Ram and they have applied to the office of L & D.O. on or about 23.3.1983 for substituting their names in place of late Sh. Moti Ram. The matter is still pending in the office of the L & D.O. Under the terms of the agreement dated 24.3.1981 Sh. Moti Ram had undertaken to pay the liability to pay all taxes and charges pertaining to the property. After the death of Sh. Moti Ram, defendants 1 to 6 failed and neglected to pay the arrears of house tax and the Municipal Corporation of Delhi had required a sum of Rs. 15,000.00 towards the arrears of house tax from Mr. S.P. Sharma (the 7th defendant). According to the plaintiff, after obtaining possession from Sh. Moti Ram the plaintiff let out the ground floor to Mr. S.P. Sharma, the 7th defendant, on a rent of Rs. l,000.00 w.e.f. December 1981. The 7th defendant committed the default in payment of rents and, therefore, the plaintiff had instituted proceedings for eviction under Section 14(l)(a) of the Delhi Rent Control Act, 1958. In the Rent Control petition, the 7th defendant had stated that late Sh. Moti Ram had executed a Will dated 3.10.1982 bequeathing the suit property in his favour. The plaintiff denied the case of the 7th defendant in the Rent Control petition. The learned Additional Rent Controller by order dated 19.4.1986 deferred passing of order under Section 15(1) of Delhi Rent Control Act. The plaintiff preferred RCA No. 660/86 before the Rent Control Tribunal, Delhi. In the objection petition in RCA No. 660/86, the 7th defendant came forward with a case that he had filed a Probate case on the 20th of January 1987 in this Court. According to the plaintiff, defendants 1 to 6 are trying to wriggle out of the transaction. The plaintiff has always been ready and willing to perform his part of the contract. On these allegations, the plaintiff has claimed the following relief :-

(3.) On 21.4.1.988 the 7th defendant filed his written statement. It is stated in the written statement that the suit is barred by limitation. The 7th defendant had been impleaded as a party in 1987, alter a period of about 6 years from the date of the execution of the agreement and, therefore, the suit is barred by time. There is no cause of action against the 7th defendant. The agreement is deemed to have been cancelled and withdrawn in view of the Will dated 3.10.1982 in favour of the 7th defendant. The Will is the subject matter of the Probate case No. 22/87. The 7th defendant denies the agreement. In paragraph 6 of the written statement, it is stated "it is wrong to say that the said agreement was duly registered with the Sub Registrar at New Delhi on 25.3.1981 at page 1351 in Book No. I, Vol. No. 4446 at pages 78 to 80". The 7th defendant has taken a very interesting plea, who is admittedly a stranger to the family claiming to be a legatee under the alleged Will dated 3.10.1982. The plea is as under :-