BABULLI Vs. HAMIDUL BIBI

JUDGEMENT

(1.) HEARD learned senior counsel assisted by Sri Ashish Kumar Singh learned counsel for the plaintiff-appellant and Sri Narendra Mohan learned counsel for the defendant-respondent nos. 9 and 10. This second appeal is being decided finally today itself with the consent of learned counsel for the parties.

(2.) THE plaintiff-appellant had filed a suit for specific performance with an alternative relief for recovery of the amount given by her in advance under the agreement of sale dated 18. 04. 78 against respondent no. 1. The plaintiff-appellant's case was that she had entered into an agreement of sale and given advance for purchase of the house situate in Mohalla - Dhuniyana Tola, Mirzapur City which was purchased by the predecessor-in-interest of the respondent by two sale deeds in the year 1943 and 1947. The respondent no. 1 had accepted an advance of Rs. 2,000/- and the respondent no. 1 along with respondent nos. 2 to 5 who were her major son and daughters had signed the agreement whereas the respondent nos. 6 to 8 being minor children were represented through respondent no. 1 their natural mother Smt Hamidul Bibi. The agreement of sale was registered and it was provided that respondent no. 1 shall obtain permission of the District Magistrate prior to execution of the sale deed when she would be paid the remaining sale consideration. A sum of Rs. 400/- was also advanced by the plaintiff-appellant as expenses for obtaining the required permission of the District Magistrate. The cause of action for bringing the suit is alleged to have arisen when the respondents refused to executed the sale deed in spite of repeated requests. It is also stated that the suit for specific performance was dismissed by the Trial Court by the judgement dated 20. 01. 81 whereupon the defendants have sold the house in question to Bachcha Lal (Respondent no. 9) and Smt Lalmani wife of Bachcha lal (Respondent no. 10) who had been arrayed as respondents in the appeal.

(3.) THE defendants denied to have executed an agreement of sale and have taken the plea that they were in need of money and hence had agreed to execute a simple mortgage deed and the plaintiff-appellant by misrepresentation got an agreement of sale executed and registered. It was also stated by the defendants that the boundaries given in the agreement of sale related to a portion of the house and not for the entire house whereas the boundaries given in the plaint are quite different and therefore the agreement of sale could not be enforced. it is their case that the respondent nos. 6 to 8 were minors at the time of execution of the agreement of sale by their natural mother who under their personal law is not entitled to alienate the share of the minors being not a guardian de jure.