SONA DEVI Vs. HAKIMUDDIN AND OTHERS

JUDGEMENT

(1.) This second appeal arises out of a suit for specific performance, which has been decreed by both the courts below.

(2.) Facts, in brief, are that the suit property originally belonged to one Ram Sukh and after his death, his wife Smt. Khimiya executed a registered agreement to sell on 3.9.1979 in favour of plaintiffs-respondents first set. It appears that on 21.9.1979 Smt. Khimiya had died and thereafter original suit no.123 of 1980 was filed by the plaintiffs-respondents first set for specific performance of contract, in which heirs of Ram Sukh and Smt. Khimiya were impleaded as defendants. The suit was contested by one of the heirs i.e. Smt. Sona Devi, who is appellant before this Court. So far as the other heirs are concerned, no contest was put forth in the suit and the suit ultimately was decreed. Smt. Sona Devi preferred an appeal under Sec. 96 CPC, which has also been dismissed by the lower appellate court. Aggrieved by the judgment and decree of the courts below, granting decree of specific performance, defendant-appellant has filed the present appeal invoking jurisdiction of this Court under Sec. 100 CPC.

(3.) Learned counsel appearing for the defendant-appellant submits that the basis of execution of agreement to sell by Smt. Khimiya was an alleged unregistered will dated 17.3.1979, which according to the appellant was got registered after death of Ram Sukh, the testator, on 18.4.1970. Learned counsel further submits that will itself was not proved and the mere fact, that the registration of will had taken place after the death of Ram Sukh, generates suspicion with regard to execution of the will, but this aspect of the matter has not been gone into by any courts below. It is also submitted that no probate or letter of administration in terms of section 213 of the Succession Act was ever issued in favour of Smt. Khimiya, and therefore, no right devolved upon her on the basis of alleged will.