VISHRAM SHUKLA Vs. RAJDEI

JUDGEMENT

(1.) This is a plaintiff's Second Appeal, arising from a Suit for specific performance of contract.

(2.) The facts giving rise to this Appeal are these: One Kewla Prasad was the bhumidhar of Plot No.563, ademeasuing 2/17/17, situate at Mauza Tisentulapur, Pargana Khairagarh, District Allahabad (now Prayagraj). Kewla Prasad transferred an area of 12 biswa 17 dhur in favour of Ram Shringar, Ram Surat and Kailash Nath, sons of Shyam Lal. He transferred the residue of 2 bigha 5 biswa in favour of Smt. Rajdei, the wife of one of his grandsons, Uma Shankar in the branch of his son, Shiv Mohan and his minor son, Girja Shankar. The transfer aforesaid in favour of Smt. Rajdei and Girja Shankar was made through a registered sale deed dtd. 29/5/1986. About a month and a half after the sale deed last mentioned was executed by Kewla Prasad in favour of Smt. Rajdei and Girja Shankar (minor), it was claimed by one Vishram Shukla that Smt. Rajdei and the minor, Girja Shankar, represented by his mother and guardian, Smt. Sukhdei, had executed a registered agreement to sell in his favour on 15/7/1986, covenanting to transfer the property, received by them through the sale deed dtd. 29/5/1986. The two had settled under the agreement to sell dtd. 15/7/1986, a sale consideration of Rs.60,000.00. It was alleged by Vishram Shukla that at the time of registration of the agreement, Smt. Rajdei and Smt. Sukhdei, on behalf of the minor, had accepted in earnest a sum of Rs.35,000.00 with a covenant that the balance of Rs.25,000.00 would be paid at the time of execution of the sale deed. The sale deed was agreed to be executed within two years. Vishram Shukla claimed that he was always ready and willing to secure necessary execution and registration of the sale deed and for the purpose, sent a notice on 13/6/1988 to Smt. Rajdei and Smt. Sukhdei, representing the minor's interest, asking them to appear before the Sub-Registrar, Meja on 15/7/1988. But the two did not appear. It was on these allegations that Vishram Shukla instituted Original Suit No.529 of 1988 for specific performance of contract, arraying Smt. Rajdei as defendant no.1, Girja Shankar, then a minor aged about 17 years through his mother and next friend, Smt. Sukhdei as defendant no.2 and Smt. Sukhdei as the third defendant. There is an alternate relief claimed in the suit for refund of the earnest of Rs.35,000.00 with interest, if specific performance be refused. This suit was instituted on 4/8/1988. Vishram Shukla, who has died pending this Appeal, represented by his four sons, who are his heirs and LRs, is the plaintiff-appellant here, whereas Smt. Rajdei, Girja Shankar and Smt. Sukhdei are the three defendant-respondents. The deceased plaintiff-appellant, represented by his heirs and LRs, who are appellant nos.1/1 to 1/4, shall hereinafter be referred to as 'the plaintiff'. The three defendants shall hereinafter be referred to as 'the defendants', wherever the reference is to all of them and by their names, in case of an individual reference.

(3.) A joint written statement dtd. 27/2/1989 was filed by the defendants, generally traversing the plaint allegations. The sale deed of 29th of May, 1986 in favour of Smt. Rajdei and the minor Girja Shankar was not denied and it was averred that the purchasers had become bhumidhars in possession of the land transferred to them. It was said in the additional pleas that on 29/5/1986, the three other sons of Kewla Prasad, to wit, Lal Mani, Raj Narain and Gulab Shankar had quarreled over the assignment of land by Kewla Prasad to the two defendants. They had fomented Daya Shankar, another son of Shiv Mohan, their brother and also a grandson of Kewla Prasad to protest that he had not been assigned any land by Kewla Prasad. This had led to strife in the family and in order to buy peace, Smt. Rajdei and Smt. Sukhdei, acting for the minor, agreed to transfer to Daya Shankar one-third share in whatever land was assigned to them by Kewla Prasad under the sale deed of 29/5/1986. Smt. Rajdei and Smt. Sukhdei had asked Daya Shankar to offer a reasonable price for the purpose, to which Daya Shankar said that he did not have ready money. He demanded that a registered agreement be executed in his favour and upon necessary resources being garnered, he would get a sale deed executed for the agreed one-third share.