PHULJHARI DEVI Vs. MITHAI LAL

JUDGEMENT

(1.) THIS is a defend ant's appeal arising out of a suit for speci fic performance of a contract dated 16th November 1961 in respect of the land in dispute alleged to have been executed by Uma Kant, defendant No. 3, on behalf of his wife, Smt. Subhani, defend ant No. 4, in favour of the plaintiff. The appellant in this appeal is Smt. Phul jhari, defendant No. 2 hi the suit. She is the wife of Mohan Nath, who was defendant No. 1.

(2.) THE plaintiff's case was that the house of the plaintiff and defendants Nos. 1 and 2 were adjoining the land in dispute. According to the plaintiff, Uma Kant, defendant No. 3, husband of Smt. Subhani, defendant No. 4, was the real owner of the land in dispute and had acquired the property benami hi the name of his wife. It was alleged that on 16th November 1961 Uma Kant, acting as the agent of his wife, Smt. Subhani, entered into a contract with the plaintiff and with the consent of his wife, defendant No. 4, agreed to execute a sale deed of the land in dispute in favour of the plaintiff for a consideration of Rs. 1.550/-. The plaintiff alleged that he paid Rs. 100/- as earnest money to Uma Kant, who executed a written agreement (Ex. 6). It was further alleg ed by the plaintiff that it was agreed between defendant No. 3 and the plain tiff that the remaining amount of Rupees 1.450/- would be paid to defendants Nos. 3 and 4 by 31st March 1962 and, thereupon, the plaintiff would be entitl ed to get the sale deed executed in Ms favour but in case he failed to pay the balance amount of Rs. 1, 450/- Uma Kant and Smt. Subhani, defendants Nos. 3 and 4 respectively, would become entitled to sell the land in dispute to any other per son. According to the plaintiff, in pur suance of the deed of agreement (Ex. 6), possession of the land was delivered to him and that defendants Nos. 1 and 2 had full knowledge of the contract of sale (Ex. 6) executed by Uma Kant in favour of the plaintiff. The plaintiff further alleged that on 1st March 1962 Smt. Subhani, defendant No. 4, executed a sale deed in respect of the land in dispute in favour of Smt. Phuljhari, defendant No. 2 in the suit and thus a breach of the agreement was committed by Uma Kant and Smt. Subhani, defendants Nos. 3 and 4 respectively. It was further alleged that Mohan Nath, defendant No. 1 took the sale in favour of his wife, Smt. Phul.ihari, although both, Mohan Nath and Smt. Phuljhari, had full knowledge of the agreement dated 16th November 1961 executed- by Uma Kant in favour of the plaintiff. Since Smt. Subhani had executed a sale deed in favour of Smt. Phuljhari, defendant No. 2, the plaintiff had to file the suit out of which this appeal has arisen.

(3.) THE trial court held that the document, Ex. 6, dated 16th November 1961, was admissible in evidence and it was established that the agreement dated 16th November 1961, executed by Uma Kant, defendant No. 3, to sell the land in dispute in favour of the plaintiff, nad been reduced to writing. The learned 1st Addl. Munsif, Varanasi, also held that defendant No. 3, Uma Kant, was the agent of his wife, Smt. Subhani and his authority as an agent to contract for the sale of the land in dispute in favour of the plaintiff was an implied authority which could be inferred from the action of the agent and 'by general course of conduct of husband and wife.' In this connection the trial court observed as follows: "In general course of human con duct it can be presumed that a husband acts on behalf of his wife. Defendant No. 4 has not been produced to deny that the agreement was executed on her behalf. In this circumstance it has been established that defendant No. 4 is wife of defendant No. 3 and he therefore acted on behalf of defendant No. 4."