ABDUL SATAR JAJI IBRAHIM Vs. SHAH MANILAL TALAKCHAND

JUDGEMENT

(1.) The defendant-appellant is a resident of Godhra in the Distract of Panchmahals and he owned a house property bearing Municipal Nos. 5146 and 5147 in City Tika NO. 60, Lot NO. 66. It had two floors. While the ground floor thereof was let out by him to witness Ramanlal Girdharilal Ex. 32 on a monthly rent of Rs. 18/-, the first floor was let out to witness Shantilal Ex. 65 on a monthly rent of Rs.10/-. This house property adjoins the building where the plaintiff's firm has been carrying on its business since last several years. On 29-11-49 Abdulsatar Haji Ibrahim Dadi of Godhra - the defendant-appellant executed an agreement Ex. 28 in favour of the plaintiff-respondent whereby he agreed to sell the suit property for a sum of Rs. 12,051/-. Rs. 2000/- were paid by the plaintiff by way of earnest money thereunder to the defendant. The agreement then provided that the sale-deed would be executed on obtaining the certificate from the Custodian of the Evacuee Property and on receiving the balance of the amount. For obtaining the certificate the defendant was to apply to the Custodian on the next day. One of the conditions was that the rent realized out of the suit property was to be taken by the plaintiff and no interest was to be paid on the earnest money till the certificate was obtained.

(2.) It appears that by a notification published on 6th October 1949 in the Bombay Government Gazette, the Collector and Deputy Custodian of Evacuee property, Panchmahals, assumed possession of the properties specified in the schedule annexed thereto in pursuance of the powers vested in him as Deputy Custodian under Sub-section (1) of Section 6 of the Bombay Administration of Evacuee Property Act, 1949. The suit property was shown therein as belonging to the defendant and valued at Rs. 12000/-. In those circumstances, since the tenants were directed to pay rent for the premises occupied by them to the Deputy Custodian, the plaintiff could not realize any amount of rent from them. The case of the plaintiff then was that by an order dated 8th July 1958 this property which was taken over by the Deputy Custodian, came to be restored to the defendants under Section 16 of the Administration of Evacuee Property Act, 1950. The tenants occupying the premises were directed to pay rent with effect from that date to the defendant. The plaintiff came to know about this order and consequently he gave a notice dated 22-9-58 to the defendant calling upon him to execute the sale-deed in respect of the property as per the terms contained in the agreement Ex. 28 dated 29-11-49. He showed his willingness to pay the balance of the amount after deducting the amount of earnest money, as also the amount of rent which, according to him, came to Rs. 3020/-. That notice came to be refused by the defendant. In the meantime as he came to know about the defendant's intention to sell off the property, he gave a public notice Ex. 29 which was published in the daily paper "Janastta" of Ahmedabad. The defendant came to know about it and that led him to give a reply Ex. 31 dated 19-10-58 through his advocate. In that reply, all that he stated was "that by lapse of time the agreement which was executed in 1949, had become ineffective at law and then after denying his liability to comply with the terms of that agreement and asserting his right to sell and dispose off the property to any person, he has stated that he was not even liable to pay any amount under the said agreement as it was barred by limitation." Be it noted that he raised no other contentions therein such as those urged in a suit filed by the plaintiff for the enforcement of that agreement passed by him. Soon after on receipt of that reply, i.e. on 19-12-58 the plaintiff filed Special Civil Suit No. 11 of 1958 in the Court of the Civil Judge (S.D) at Godhra, wherein his main prayer was for a decree for specific performance of that agreement Ex. 28 dated 29th November 1949, requiring the defendant to execute the sale-deed in respect of the suit property on his paying the remaining amount of Rs. 7,027/-or any such amount as may be declared by the Court, which he was willing and ready to pay. In the alternative, he also prayed that in case for any reason whatever, the Court did not think it proper to pass a decree accordingly, the defendant may be directed to pay the amount of Rs. 5024/-together with future interest thereon from the defendant. That amount consisted of Rs. 2000/-which he had paid by way of earnest money under the agreement and Rs, 3024 due on account of rent for a period from 30-11-49 till 1-12-58 at the rate of Rs. 28/- per month, as per the terms thereof.

(3.) This suit was resisted by the defendant as per the contentions raised in his written statement Ex. 12 in the case. He inter alia contended that the agreement was illegal and void -the same having been entered into in respect of his evacuee property which had vested in the Deputy Custodian of the Evacuee Property; that he alone was entitled to sell the property to any person whomsoever he liked; that, therefore, there was no question of obtaining any certificate from him for the sale of the property as alleged, that the condition of obtaining such a certificate mentioned in the agreement was impossible of performance, and that, therefore, the agreement passed by him was void. He further contended that such an agreement being void and ineffective cannot be enforced in law; that he was not entitled to a refund of the earnest money as well under any such agreement; that the claim in that respect is barred by limitation; that the plaintiff is not entitled to claim any amount on that account either from the tenants or from the Custodian; that the suit is barred by delay and latches, and that it may be dismissed with costs.