MAKATI NANCHAND KAKALDAS Vs. CHAMPAKLAL CHHOTALAL KAPADIA

JUDGEMENT

(1.) This an appeal by the original defendants of the Special Civil Suit No. 65 of 1969 of the Court of the Civil Judge (S. D.) at Surat being aggrieved by the judgment and decree of specific performance of a contract for sale of some property hereinafter called the suit property on the respondent plaintiffs depositing with the court the amount of Rs. 21.599.00 on or before 15th June 1971 The defendants were further directed by the said judgment and decree of the trial court to execute the aforesaid sale deed within one month from the date of depositing of the aforesaid amount with the court by the plaintiff. It was further ordered and decreed that on execution of such a sale deed in respect of 15/16th share of that property the plaintiff was to be put into symbolic possession of that undivided share.

(2.) The background of the case deserves to be closely noted in order to comprehend the moot points in controversy. The suit property originally belonged to one Tribhovandas Bhaidas the ancestor of the appellants Nos. 3 to 6. The defendant No. 1 had purchased the shares of Bhukhandas Tibhovandas and of Somabhai alias Pitamber Tribhovandas in court auction on 21-9-56 and had contracted to purchase the share of the third brother Chhabildas Tribhovandas the original defendant No. 4. who has died during the pendency of the case and is represented by the appellants Nos. 4A to 4 The appellant no. 3 Chandiben is the wife of said Chhabildas Tribhovandas. The appellant No. 5 Maniben is the wife of aforesaid Somabhai alias Pitambardas Tribhovandas and the appellant No. 6 is said Somabhai alias Pitambardas Tribhovandas himself who was the defendant No. 6 in the trial court. The fourth brother Rangildas Tribhovandas was thought to have relinquished his share in the joint property and in the year 1958 it was believed by the defendant No. 1 the appellant No. 1 herein that only three brothers had their right title and interest to and in the suit property. out of which 2/3rd shares had already been purchased by him in a court auction and he had contracted to purchase the remaining 1/3rd share of Chhabildas Tribhovandas. The defendant No. 1 therefore thought him self entitled to the whole of the suit property and on 19-7-50 he had entered into a contract ex. 76 with the present plaintiff respondent to 4 the said house to the latter on full title and possession having been procured. The price agreed upon was Rs. 2 199 and on the day of the contract that is on 19-2-59 Rs. 1001.00 were received by the defendant no. I from the plaintiff as earnest money. The period stipulated was 18 months for the execution of the deed by the defendant in favour of the plaintiff but it was then apprehended that possibly the full title and complete possession could not be had by the defendant No. 1 within that period of 18 months and so the contract ex. 76 specifically provided that till the defendant no. 1 procured the de facto possession of the property the period was to be treated as extended till the recovery of full possession by the defendant No. 1. Soon after the execution of that agreement of sale by the defendant No. 1 in favour of the plaintiff the defendant No. 1 had taken on 13-4-59 the share of Chhabildas Tribhovandas from the decree holders who had themselves purchased the said share of Chhabildas Tribhovandas at the court auction. So what was promised by the defendant No. 1 to the plaintiff at the time of the agreement of sale was practically complete. However the defendant No. 1 could not procure full entitle because the heirs of Ragildas the fourth brother had put forward their claim to the 1/4th share in the suit houses three sons of said Rangildas however had been adjudged insolvent and their right title and interest to and in the suit property was purchased through the court receiver by the defendant No. 1 on 26-12-59 that is about eight months after the suit agreement by the defendant no. 1 in favour of the plaintiff. Thereafter the defendant No. 1 filed a Special Civil Suit No. 55 of 1960 against all the heirs of Tribhovandas Bhaidas for possession of the suit property claiming that he had acquired a complete title to the suit property. In the said suit the defendant No. 1 had sought a declaration that he had become the absolute owner of the entire suit property and on that basis he terms possession of the entitle house from the defendants in that suit. In the alternative he had sued for partition and separation of his whatever shares that would be adjudicated upon by the court. The suit was wrestled by all the hers going at the one Bai Laxmi the widow of Rangildas why has asserted that she as the widow of Rangildas had 1/4th share in the 1/4th share of extended in the suit property. The trial court by its judgment and order dated 31-3-62 declared that the present defendant No. 1 Makati Nanchand Kakaldas had 15/16th share in the suit property and that he was entitled to get his 15/16th share separated. The court clearly decreed that the remaining 1116th share belonged to Bai Laxmi the widow of deceased Rangildas. Against the said judgment and decree in the Special Civil Suit No. 56 of 1960 Somabhai and others had preferred the first appeal No. 405 of 1962 in this High Court claiming that the defendant No. 1 had not acquired even the 15/ 116 share as claimed by him. That appeal carne to be dismissed by this High Court by its judgment dated 20-8-68.

(3.) As the litigation in respect of the suit property was going on bet week the defendant No. 1 on one hard and the original claimants some of whom are the appellants herein the period for performance of the contract by the defendant No. 1 in favour of the plaintiff went on being extended by the defendant No. 1s constituted attorney from give to time as noted in various endorsements made below Ex. 76 the original contract. Even the defendant No. 1 by his letter Ex. 77 dated 27-3-67 had under his own hand extended the period for performance of the contract in response to the requisition by the plaintiff and as per this letter written by the defendant No. 1 to the plaintiff the time for due performance of the contract Ex. 76 was extended till 31-3-68. After the appeal or some of the heirs of Tribhovandas had come to be dismissed by the High Court in year 1968 the defendant No. 1 acting through his new constituted attorney the original defendant No 2 now the appellant No. 2 had filed execution proceedings before the Civil court in order to get the defendant No. 1s 15/1th share separated by metes and bounds. The matter was before the executing court on 21-7-69 and as then adjourned to 31-7-69. The parties to those proceedings were the present defendants Nos. 1 and 2 on one hand and other heirs of Tribhovandas Bhaidas on the other. On 25-7-69 the defendant No. 2 acting as the constituted attorney of his father the defendant No. 1. sold his right title and interest to and in the suit property by a registered deed in favour of the defendant No. 3 the wife of Chhabildas Tribhovandas and in favour of the defendant No. 5 the wife of Somabhai Tribhovandas as per the sale deed ex 102 and for the ostensible consideration of Rs. 15999.00.