TARABAI RAOJI Vs. YESTAR TUKARAM NATHOJI

JUDGEMENT

(1.) THIS second appeal arises out of Suit No. 637 of 1947 filed by the plaintiff against the defendants for specific performance of a contract for sale of the suit house and for possession. One Tukaram Nathoji-father of the first defendant was originally the owner of Municipal Nos. 7456 and 5750 in Ward No. 12 in the town of Ahmednagar. The first defendant was entitled to a 5/6th share in that house, and the remaining 1/6th share was owned by the second defendant. On 17-8-1948 the first defendant entered into an agreement to sell the whole house to the plaintiff for Rs. 3,500/-and to execute a sale deed after taking Letters of Administration of the property which was bequeathed to her under the wills of her father Tuka-ram and her mother Vithabai. The first defendant thereafter failed to obtain letters of Administration and she did not execute a conveyance in favour of the plaintiff. The plaintiff then filed Suit No. 637 of 1947 for specific performance of the agreement to sell the property and joined the second defendant as party to the suit who had the remaining 1/6th interest in the suit house. Two other persons who were tenants of the house were also joined as defendants.

(2.) THE suit was resisted by the first and the second defendants. The first defendant contended that the agreement was obtained by misrepresentation and undue influence, and that the plaintiff was not entitled in any event to a decree for specific performance of the agreement. The second defendant contended that the first defendant was entitled to only a half share in the property and she also supported the case of the first defendant. The learned trial Judge on a consideration of the evidence came to the conclusion that the agreement was produced by fraud, misrepresentation and undue influence as alleged in paras 1 to 8 of the written statement of the first defendant. The learned trial Judge accordingly dismissed the plaintiffs' suit.

(3.) AN appeal was preferred to the District Court at Ahmednagar against the decree passed by the trial Court. In appeal the learned Extra Assistant Judge held that the agreement was not produced by fraud, misrepresentation or undue influence. He further held that for specific perform once of agreement In respect of 5/6th share of the suit property the agreement cannot be enforced under Section 14, Specific Relief Act against the first defendant. The learned Appellate Judge however was of the view that even though it was a case in which specific performance of the agreement apart from Section 14, Specific Relief Act could be granted because the plaintiff did not rely upon Section 15, Specific Relief Act in support of his claim he was not Justified in awarding a decree for specific performance in favour of the plaintiff even on the plaintiff showing willingness to take 5/6th share in the property on payment of the full consideration. The learned Judge accordingly confirmed the decree passed by the trial Court and dismissed the appeal. The plaintiff has come to this Court in second appeal.