MOTILAL MAHAVIRPRASAD SHARMA Vs. MANOJKUMAR VITHALRAO GHIYA

JUDGEMENT

(1.) This is defendants' appeal against decree for specific performance of an agreement of sale of immovable property. The dispute in this matter relates to the northern half portion of a double storeyed house bearing house No. 406/0-5 situate on the East Park road at Nagpur. This northern portion was purchased by Ramlal Shankarrao Shinde from one Shri Roy on 8-8-1967 for Rs. 15,000 while the southern portion of the suit house was purchased by respondent Manojkumar on the very day. On 8-8-1967 itself Ramabai, appellant No. 2, who died during the pendency of the appeal, took Rs. 4,000 from the respondent and executed an agreement, which purported to be an agreement of sale. By this document, which is produced at Ex. 35, Ramabai agreed to sell the northern portion purchased by her, to the respondent. It was also agreed that the sale-deed was to be executed on 8-9-1967. The sale-deed could not he executed before that date and hence at the instance of Ranchhoddas, with whom Ramabai was residing for a number of years, the time of the original agreement was extended and on 14-9-1967 a fresh agreement (Ex. 38) came to be executed under which Ramabai agreed to execute the sale-deed on or before 29th Sept. 1967. The time was further extended till 29th Oct. 1967 at the instance of Ramabai.

(2.) As Ramabai failed to execute the sale-deed on or before 29th Oct. 1967, the respondent sent a telegram and called upon Ramabai to come to the office of the Sub-Registrar for executing the sale-deed. Ramabai, however, did not oblige and by reply Ex. 40 dated 2nd Nov. 1967, she inter alia contended that the transaction was a moneylending transaction. Therefore, on 17th Dec. 1967, the respondent published a public notice in the issue of even date of the Marathi daily 'Tarun Bharat', declaring that Ramabai had entered into an agreement of sale in his favour in respect of the northern portion of the house in question and that if any one else entered into any transaction with Ramabai in respect of that property, the said transaction would not be binding on him. In spite of this notice, Ramabai executed sale-deed in favour of appellant No. 1 on 8-1-1968. When the respondent came to know about this transaction, he served appellant No. 1 with a notice of which Ex. 41 is the office copy and called upon him to transfer the property in question in his favour. The appellant neither replied nor complied with the notice and hence the respondent filed Special Civil Suit No. 56 of 1968 against the appellant for specific performance of the agreement of sale executed in his favour by Ramabai. He also prayed for possession of the property in question and by an amendment dated 9-11-1970 sought further declaration that the sale-deed executed by Ramabai in favour of appellant No. 1 on 8-1-1968 was not binding on him.

(3.) Ramabai resisted the suit mainly on the ground that the transaction was a loan transaction and hence the respondent was not entitled to specific performance of the agreement of sale. Appellant No. 1 Motilal pleaded that he was a bona.fide purchaser for value without notice. The learned trial Judge negatived the above contentions and passed a decree in favour of the respondent directing Ramabai, original defendant No. 2, to execute a sale-deed in favour of the respondent, on payment of Rs. 11,000 in respect of the suit property. The learned trial Judge declared that the sale-deed executed by Ramabai in favour of appellant No. 1 was not binding on the respondent and that it is a nullity. He further directed Ramabai and Motilal to deliver possession of the suit property on execution of the sale-deed. Being aggrieved by this decree, Motilal and Ramabai jointly filed the appeal. During the pendency of this appeal, appellant No. 2 Ramabai died on 13-11-1973. No steps, however, were taken by appellant No. 1 to bring on record Ramabai's legal representatives. It appears that on 7-11-1977, the respondent filed an application for early hearing of the appeal. In that application he mentioned that Ramabai expired on 13-11-1973. Even then appellant No. 1 did not take any steps till 16-8-1978 to bring Ramabai's legal representatives on record. He filed the application on that date. This application was opposed and as there was no plausible explanation for the delay, especially the delay after 4-11-1977 for taking steps in bringing the legal representatives of deceased Ramahai on record, applications filed by appellant No. 1 for condoning the delay in applying for setting aside the abatement and for bringing the legal representatives of deceased Ramahai on record, were rejected. By virtue of this order, the appeal filed by Ramabai stood abated.