PRAG DATT Vs. SARASWATI DEVI

JUDGEMENT

(1.) Har Vallabh plaintiff-respondent No. 2, was the Bhumidhar of plot No. 417 measuring 1-20 acres. The said plot is situated in village Kandeshi Pachar, District Etawah. On July 29, 1964, Har Vallabh executed a sale deed of the said plot in favour of the defendant-appellant for a sale consideration of Rs. 800/-. On the same date, it is alleged by the plaintiff, the defendant-appellant executed an agreement to transfer the property in favour of Smt. Saraswati Devi, plaintiff-respondent No. 1, and Har Vallabh or any one of them. The plaintiffs-respondents served a notice on the defendant-appellant on Oct. 26, 1965, requiring him to execute a sale deed of the said plot in favour of Smt. Saraswati Devi alone as Har Vallabh was not possessed of sufficient means. The defendant-appellant replied to the said notice stating that he had only agreed to transfer the land in favour of Har Vallabh and he was under no legal obligation to do the same in favour of Smt. Saraswati Devi, On receipt of this reply, the plaintiffs-respondents sent another notice dated Nov. 24, 1965 to the defendant-appellant to execute a sale deed jointly in favour of Har Vallabh and Smt. Saraswati Devi, The defendant-appellant did not reply to the said notice.

(2.) The above is a resume of the facts which have been concurrently found by the two courts below and these facts have not been rightly challenged before me. It is not in dispute, and it is also borne out from the record, that the plaintiffs-respondents instituted the suit for specific performance of the contract dated July 29. 1964 in the Court of Munsif on Dec. 22, 1965.

(3.) It may be stated that it was urged before the courts below on behalf of the defendant-appellant that the plaintiffs-respondents bad failed to allege and prove that they had always been ready and willing to perform the agreement dated July 29, 1964 and were ready and willing to perform the same at the time of the institution of the suit, On this question, the two courts found in favour of the plaintiffs-respondents, In consequence of the said finding and the finding of fact summarised above, the trial court decreed the suit of the plaintiffs-respondents for specific performance and the said decree was maintained by the court of appeal.