LALJI Vs. RAMJI SETH

JUDGEMENT

(1.) THIS second appeal arises out of a suit filed by the plaintiff respondent Ramji Seth for specific performance of the contract of sale entered into on 2-12-1964 in respect of house No. K 46/167 situate in mohalla Hartinath, district Varanasi.

(2.) ON 2-12-1964 Lalji executed a registered deed in favour of the plaintiff respondent Ramji Seth agreeing to sell the property in dispute. By this deed the property agreed to be sold was also mortgaged in favour of Ramji Seth for a sum of Rs. 1,500/- in case the plaintiff respondent did not obtain the sale deed for the disputed premises. The plaintiff respondent was willing to purchase the disputed premises but Lalji transferred the disputed premises to Suraj Prasad and Harihar Prasad defendants appellants Nos. 2 and 3 on 3rd April 1965. The defence of appellant No. 1 Lalji was to the effect that he did not execute the agreement for sale but had in fact executed a simple mortgage in favour of the plaintiff for a sum of Rupees 1,500/-. It was further alleged that by this deed an unfair advantage was sought to be taken from the appellant No. 1 and that the price of the house agreed to be sold was inadequate and as such the agreement was not specifically enforceable. It was further pleaded in defence that since the agreement lacked mutuality the same was not enforceable. The defendants appellants Nos. 2 and 3, however, claimed to be bona fide purchasers and sought the benefit of Sec. 41 of the Transfer of Property Act.

(3.) TWO questions arise in the present appeal. Firstly, as to whether it could be held that the plaintiff respondent had taken unfair advantage and as such the relief could not be granted to him in view of the Specific Relief Act. Secondly whether there was want of mutuality and as such the agreement was not enforceable.