ABDULKHADER Vs. SEYDU

JUDGEMENT

(1.) Plaintiff is the appellant in AS 84 of 1981 and defendant is the appellant in AS 132 of 1981. Plaintiff filed the suit for recovery of Rs.13,000/- being the owelty amount the defendant agreed to pay to him and also for accounting. The Sub Judge disallowed the owelty claim but the defendant was directed to render accounts to the plaintiff regarding the income and expenditure in the estate during 01/04/1972 to 31/03/1976.

(2.) Plaintiff is the owner of plaint B schedule properties, he having obtained it by a registered partition deed in 1960. He was allotted D schedule in the said partition. Defendant was allotted C schedule properties. At the time of partition it was agreed that the defendant should pay Rs.13,000/- to the plaintiff towards owelty. In 1964 plaintiff and defendant executed an agreement agreeing to mutually exchange specific portions of their respective shares in lieu of the payment of Rs.13,000/- by the defendant. It is specifically stipulated in the agreement that only on defendant's execution of the exchange deed the liability of payment of Rs.13,000/- will be discharged. Plaintiff sent lawyer notice to the defendant calling upon him to execute the exchange deed or else to pay Rs.13,000/- as agreed. There was no favourable response. The learned Sub Judge held that in view of the subsequent agreement plaintiff cannot claim the amount.

(3.) There is no dispute that plaintiff is entitled to Rs.13,000/- by way of owelty. The question to be considered is as to whether in view of the later agreement plaintiff has lost his right to claim owelty. The Court below held that plaintiff cannot claim the owelty amount in view of Ext. A34 agreement. But the Court obviously overlooked the fact that nothing was done by the defendant pursuant to that agreement. The specific stipulation in the agreement that only on defendant's execution of the exchange deed the liability of payment of Rs.13,000/- will be discharged was not considered by the Court below. As the defendant failed to fulfil his obligation under Ext. A34, the right of the plaintiff to get the owelty amount cannot be denied. As admittedly nothing was done pursuant to Ext. A34 by the defendant, he cannot contend that his liability to pay the owelty amount is no longer in existence.