VISHNU AND CO Vs. ABDULKHADAR HAJI

JUDGEMENT

(1.) THE main dispute in the above appeal relates to the ownership of a Mercedez Benz air-conditioned motor car bearing Registration no. ORG 3277, which was later changed to MMD 2901. THE deceased 1st respondent in the above appeal who was the plaintiff in the suit and whose legal representatives are respondents 9 to 19 wanted a declaration that he is the owner of the car and prayer for recovery of possession of the same. Defendants 5 and 6, the appellants in the appeal, denied the ownership of the plaintiff and contended that the car belonged to them as bona fide purchasers for value without notice of any defect in title. THE trial court held that the plaintiff is the owner of the car and is entitled to recover the same. THE contentions of defendants 5 and 6 were specifically found against. THE appellants challenge the said findings of the trial court in this appeal.

(2.) BRIEFLY stated the facts necessary for deciding the appeal as borne out by the pleadings in the case are thus: According to the plaintiff the 1st defendant was the registered owner of the Mercedez Benz car with registration No. ORG 3277 described in the plaint schedule (hereinafter referred to as the car ). The plaintiff purchased the car from the 1st defendant entering into a written agreement dated 10-4-1974 with him. As per the agreement the price fixed was Rs. 1,25,000/ -. An amount of rs. 65,000/- was paid on 10-4-1974 itself. On payment of Rs. 65,000/- the first defendant delivered the car with the registration certificate to the plaintiff which he accepted. The plaintiff was in possession of the car thereafter. The balance amount payable was agreed to be paid on or before 10-7-1974. It was further agreed that the transfer of registration will be effected only on payment of the balance amount in full. Ext. XI is said to be a signed true copy of the agreement dated 10-4-1974. The true copy of the agreement was marked as Ext. XI since the original was alleged to be irrecoverably lost. The balance amount was not paid in time. However, an amount of Rs. 35,000/- was paid by the plaintiff to the 1st defendant on 30-8-1975 on which date a fresh agreement referring to the earlier agreement and purporting to be a renewal of the earlier one was entered into. Ext. X2 is the said agreement executed in a stamp paper. The terms of the said agreement were also more or less the same as that of Ext. XI. The receipt of rs. 35,000/- paid on 30-8-1975 was acknowledged by the 1st defendant in Ext. X2 agreement itself and the balance amount of Rs. 25,000/- was agreed to be paid on or before 30-3-1976. The plaintiff alleged that the balance amount of Rs. 35,000/- was also paid by adjustment of the amount due to the son of the plaintiff from the 1st defendant under Ext. X7, an agreement for sale of a plot of land entered in to between the plaintiffs son and the 1st defendant. Accordingly it was claimed that the plaintiff has become the absolute owner of the car and entitled to quite possession of the same.

(3.) THE 1st defendant in his written statement specifically admitted the execution of Exts. X1 and X2 agreements, the payments of Rs. 65,000/- and Rs. 35,000/- made by the plaintiff towards purchase price of the car and the delivery of the car to the plaintiff with the registration certificate as was done by him in the criminal proceedings earlier in 1977. However, the payment of Rs. 25,000/- by adjustment alleged by the plaintiff was denied and it was contended that the plaintiff committed breach of the agreement and the ownership of the car continued to vest to him. But it was also specifically stated in the written statement itself that he is making a claim only for the recovery of the balance amount since it is doubtful whether he can claim back the car itself invoking the penal clause in the agreement stipulating the return of the car on breach of the terms of the agreement. THE allegation in the plaint regarding the fraudulent and illegal transfers effected in the name of defendants 3,4 and 5 were admitted by the 1st defendant also. It was specifically stated that he has not submitted any joint application for transfer of the registration in the name of the 3rd defendant and that his signatures in the application for transfer submitted to the r. T. O. , Bombay must have been forged by the 3rd defendant. Subject to his claim for Rs. 25,000/- the ownership of the plaintiff was specifically admitted by the 1st defendant. Accordingly the 1st defendant raised a counter claim in the written statement and paid necessary court fee also.