MOHAMMAD YAMIN Vs. ABDUL MAJID

JUDGEMENT

(1.) This is a Special Appeal on behalf of the defendants and arises out of a suit for specific performance of a contract of resale. One Ali Bux was originally the owner of the house in suit. He sold it to defendants Nos. 1 and 2 now the appellants on the 6th of March, 1938 for a consideration of Rs. 1,000/-. On the same date the vendees, i.e., defendants Nos. 1 and 2 executed in his favour an agreement by which they agreed to re convey the property to him if within a period of ten years from the date of the sale he paid back to them the consideration of Rs. 1,000/-. Ali Bux subsequently died leaving a number of heirs including the plaintiffs. The defendant no. 1 was the husband of one of the daughters of Ali Bux. On the death of that daughter he along with defendants Nos. 8 to. 13 too inherited a share in Ali Bux's properties. The plaintiffs who were two of the sons of Ali Bux instituted the suit out of which this appeal has arisen for specific performance of the contract of resale that had been entered into between Ali Bux and the defendants Nos. 1 and 2 on the 6th of March, 1938. They offered the sum of Rs. 1,000/- as consideration for the property. The other persons to whom the property of Ali BUX had descended were defendants Nos. 3 to 17.

(2.) The suit was contested mainly on two grounds by the defendant No. 1 and Nos. 8 to 13 the children of defendant No. 1. The share which the plaintiffs claimed in the property was disputed and it was also pleaded that the plaintiffs alone could not enforce the contract of resale. The trial court dismissed the suit. The lower appellate court held that the plaintiffs had by inheritance and purchase from some of the heirs of Ali BUX acquired 38 1/12 Sihams out of 48 Sihams of the property and that the defendants Nos. 1 and 8 to 13 owned the remaining 9 11/12 Sihams out of 48 Sihams. The leaned Civil Judge was of opinion that the plaintiffs having a larger share were entitled in law and in equity to get the specific performance of the contract of resale so far as their share was concerned on PAYMENT of the proportionate price. He, therefore, decreed the suit for specific performance of the contract of resale to the extent of 38 1/12 Sihams out of 48 Sihams on payment of the preportionate amount out of the sum of Rs. 1,000/-. He direct-ed the defendants Nos. 1 and 2 to execute the sale deed in respect of that share in favour of the plaintiffs within a period of two months of the date of his decree and provided that in case of default the plaintiffs shall be entitled to get the sale deed executed through court on payment of the proportionate amount.

(3.) The defendants NOS. 1 and 3 to 8 came up in Second Appeal against that decree to this Court. The appeal was heard by a learned single Judge of this Court. He upheld the finding that the plaintiffs owned 38 1/12 Sihams out of the property and defendant Nos. 1 and 8 to 13 own-ed the remaining 9 11/12 Sihams. He however allowed the appeal to this extent that the defendants NOS. 1 and 2 were directed in their capacity of promisors under the contract to reconvey and execute the sale deed in respect of the whole property in favour of the plaintiffs and defendants Nos. 8 to 13. The plaintiffs or any or all of the defendants entitled to have the sale deed were to pay a total sum of Rs. 1,000/- together with the costs of and incidental to the conveyance either alone or together before the execution of the sale deed by the defendants Nos. 1 and 2 to them. In case the defendants Nos. 1 and 2 as promisors under the contract did not execute the sale deed as aforesaid within three months, the plaintiffs or defendants 8 to 13 (inclusive) either alone or together were to be entitled to get the sale executed as aforesaid through court in favour of all on payment of Rs. 1,000/- by such of them as applied for execution of the sale deed through court either alone or together. The learned Judge granted leave to appeal to a Division Bench. Hence the defendants Nos. 1 and 8 to 13 have filed the present appeal.