NASIRAN BIBI Vs. IRSHAD AHMAD

JUDGEMENT

(1.) S. K. Phaujdar, J. This second appeal was admitted two substantial questions of law. The questions were as follows: (1) Whether the suit for specific performance of contract to sell-could be legally decreed where the plaintiffs have failed to prove and the lower appellate court has failed to record a finding as to the payment of Rs. 1,500 to the deceased-defendant, Mst. Nasiran Bibi, prior to the execution of the said agreement to sell. (2) Whether the agreement to sell dated 16-7-1973 could prove the execution in question without proving its contents by reading over and explaining the same to the deceased defendant, who was an illiterate purdahnasheen lady.

(2.) TO appreciate these questions of law and before enterting upon a decision on these points, it is necessary to State the facts of the present case. A suit was filed by Mohd. Hasan and his two brothers in the year 1976 before the Munsif, Azamgarh, which was registered as Suit No. 369 of 1976, against one Nasiran Bibi (now deceaseds and represented through her legal representatives the present appellants ). The plaintiffs had filed the suit for specific performance of a contract that was entered into by the defendant with the plaintiffs. It was stated that Nasiran and 1/3rd share on the land in question. She had a talk with the plaintiffs for sale of her share on a consideration of Rs. 2,000 and agreed to execute a sale-deed. On 16-7-73 a "um of Rs. 300 was paid to her and an-agreement to sale was executed and registered. She had already obtained, earlier to this transaction, a sum of Rs. 1,500 from the plaintiffs. According to the plaint, only Rs. 200 remained to be paid. When the plaintiffs desired that the defendants should accept Rs. 200 and should execute a sale-deed as agreed and had stint a notice to that effect, neither the notice was replied to nor the sale-deed was executed.

(3.) THE learned counsel for the defendant-appellants urged that the plaintiffs' suit could not have been decreed without proof of the fact that the payment of Rs. 1,500 to Nasiran and the courts below failed to record any finding on such payment and as such the decree could not be sustained. It was also urged that Nasiran being a rustic unlettered purdahnasheen lady, the onus of proof of due execution of the agreement to sell lay on the plaintiffs and the plaintiffs failed to discharge this onus. It was contended on behalf of the respondents that the second appellate court could not go against the findings of fact consistently arrived at by the courts below and the onus lay on the defendant to prove that there was no agreement to sell as the defendant was a lady who knew fully well what were legal transactions and how a registration was made as she had in past executed other documents before the registering authorities. It was contended that the courts below had given clear find ings on the transaction of payment of Rs. 1,500.