AHMAD KHAN Vs. SHAHANSHAH JEHAN BEGUM

JUDGEMENT

(1.) THIS is defendant's ap peal arising out of a suit for specific per formance of a contract of sale in respect of 7 annas share in the house in dispute. The material facts are as follows. The plaintiff was the owner of 7 annas share in the house No. 139/14 Hathikhana, Lucknow. She sold her said share in the house to the defendant. On the same day a deed of agreement was also executed whereby the defendant had agreed that if the plaintiff would pay a sum of Rs. 4, 000.00 within four years to her she would reconvey the said share of the plain tiff. One Wajid Ali Khan had also a 6 annas share in the said house and the defendant had originally 3 annas share in the same. Wajid Ali Khan migrated to Pakistan and his 6 annas share in the said property was declared to be evacuee property. The Custo dian sold the entire premises as composite property by public auction on 23-8-1963 to the defendant. The sale was confirmed and a sale certificate dated 18th October, 1963 was issued. On 9-2-1966 the plaintiff served a notice on the defendant requiring her to reconvey 7 annas share in the said house to her in pursuance of the agreement dated 14-5-1962. The defendant, however, failed to comply with the said notice, hence the suit was filed by the plaintiff for the specific per formance. The defendant contested the suit on a number of grounds. She alleged that the property in suit vested in the Custodian free from all encumbrances and liabilities and was sold by the Competent Officer, Lucknow by a public auction as composite property. The defendant purchased the said property in public auction for a considera tion of Rs. 5700.00 and thereafter spent a large amount on its constructions. She, therefore, contended that the plaintiff had no right in the property and as the said house had been declared composite property and had 'been sold as such, the defendant was under no obligation to reconvey 7 annas share in the said house to the plaintiff in pursuance of the agreement dated 14-5-1962. The trial Court accepted the contention rais ed by the defendant and dismissed the suit. On appeal by the plaintiff the findings of the trial Court were reversed and the suit was decreed. Aggrieved, the defendant has now come to this Court in second appeal.

(2.) IT was argued on behalf of the defendant-appellant that under sub-clause (a) (iii) of Section 10 of the Evacuee Interest (Separation) Act 1951 the Competent Officer had the power to take all such measures as he might have considered necessary for the purpose of separating the interests of the evacuees from those of the claimants in any composite property and sell the property and distribute the sale proceeds thereof between the Custodian and the claimant in propor tion to the share of the evacuee and of the claimant of the property. It was argued that the Competent Officer in exercise of his powers under Section 10 sold the property in question and distributed the sale proceeds thereof. It was further argued that in view of the provisions of Section 11 of the said Act the whole property vested in the Custo dian free from all encumbrances and liabili ties and as such the defendant was relieved of all her obligations under the aforesaid agreement of 14-5-1962. The learned coun sel for the respondent, however, submitted that in view of the provisions of Section 12 read with sub-section (3) of S. 20 of the said Act the plaintiff was entitled to have the said agreement of 14-5-1962 specifically en forced.

(3.) IT is, however, not disputed that the entire house was a 'composite property' as defined in Section 2 (d) of the Act. It is also not disputed that in pursuance of the provisions of Section 10 (a) (iii) of the Act the competent officer sold the entire property by public auction on 23rd August, 1963 to Srimati Mehboob Jehan Begum and granted a sale certificate exhibit A-l. It was argued that in view of these supervening events it became impossible for the defendant to per form the original contract of re- conveyance of 7 annas share which the defendant had purchased from the plaintiff.