MOHAN Vs. ARJUNA

JUDGEMENT

(1.) BY invoking the jurisdiction of this Court under Section 100 of the Code of Civil Procedure, this second appeal is directed against the judgment and decree dated 2. 3. 1990 passed by the learned Additional District Judge in Regular Civil Appeal No. 75 of 1989, who allowed the appeal and set aside the judgment and decree passed by the Trial Court on 24. 2. 1986 in Special Civil Suit No. 3 of 1983 by which the Trial Court decreed the suit of appellant/plaintiff for specific performance of the contract with costs and dismissed the counter-chum and directed the respondent/defendant No, 1 Arjuna (now deceased) to execute the sale-deed in favour of the appellant/plaintiff on receiving a sum of Rs. 20,4257-within two months from the date of judgment and in case of failure to execute the sale-deed, the appellant/plaintiff was directed to deposit the amount in the Court within one month and get the sale-deed executed through the Court.

(2.) THE short and substantial question of law that arises for consideration in this appeal is, whether a decree for specific performance of the contract can be refused on the ground that defendant No. 1, who purchased the suit fields in the name of his wife Bhagirathibai is hit by the provisions of Section 4 of the Benami Transactions (Prohibition) Act, 1988 (for short the Act ).

(3.) BRIEF facts are as under; Bhagirathibai is the wife of defendant No. 1 Arjuna, Bhagirathibai died on 2. 12. 1976. However, defendant No. 1 Arjuna died during the pendency of this appeal and his legal heir, i. e. Yashodabai, has been brought on record. On 26. 4. 197,1, 20. 3. 1972 and 15. 5. 1973 respectively the defendant No. 1 had purchased the agricultural lands bearing Survey No. 63/1 to the extent of 6 acres 16 gunthas and Survey No. 66/1 to the extent of 2 acres 3 gunthas by virtue of three different sale-deeds and these lands were purchased in the name of Bhagirathibai. The defendant No. 1 had two wives, namely Bhagirathibai and Kasabai. The latter used to live at village Umbarda, while the former used to live at Inzori, At both the places, the defendant No. 1 had his houses and both the wives were living with him. Defendant No. 2 Jijabai is the daughter of defendant No. 1. The latter had no issue except defendant No. 2. It is contended that on 27. 5. 1979 defendant No. 1 executed agreement of sale (Ex. 44) of the suit fields in favour of the plaintiff for the consideration at the rate of Rs. 3,000/- per acre on receiving the earnest amount of Rs. 5,000/ -. It was agreed between the parties that the balance amount of consideration would be paid on or before 31. 3. 1988 at the time of execution and registration of the sale-deed. The possession of the land was delivered to the plaintiff on the date of execution of the agreement of sale. The plaintiff was ready and willing to perform his part of contract, but it was defendant No. 1 Arjuna who avoided to execute the sale-deed on one pretext or the other, though called upon to do so by exchange of notices and, therefore, the plaintiff was constrained to file the suit for specific performance of the contract.