DAGADU RAOJI DONGARE Vs. ANUSAYABAI MARTAND KADAM

JUDGEMENT

(1.) DEFENDANT no.9 in Special Civil Suit No.83 1973 has filed this Second Appeal. Respondent no.1 is the original plaintiff, while respondents 2 to 9 are original defendants nos. 1 to 8 in the said suit.

(2.) PLAINTIFF has filed suit for specific performance of contract of sale of suit house bearing Municipal House No.44 (1/2 portion). As per the plaintiff, prior to 1970, her husband Martand was dealing in tobacco business and later on he was dealing in grocery articles. Municipal House No.44 was originally owned by defendant No.1 Shantaram and his brother Ganpat and others. There was partition and the house came to be divided between Shantaram and Ganpat. One half portion was allotted to defendant no.1 - Shantaram while western half portion was allotted to Ganpat. By a registered sale deed dated 26.6.1970 Ganpat and his son Bhanudas sold western 1/2 portion to respondent no.8. Half portion of the house is owned by Shantaram, defendant 2 his wife and defendant no.1. While defendants nos. 3 to 7 are sons of defendants nos. 1 and 2. Defendants nos.8 and 9 are brothers. As per plaintiff defendants nos. 1 to 7 by agreement dated 3.7.1972 agreed to sell the suit house to the plaintiff for a consideration of Rs.20,000/. At that time Rs.8,500/- was received as earnest money and balance amount of Rs.11,500/- was to be paid before the execution of the sale deed before the Sub-Registrar. The said deed was to be executed within 6 months. Plaintiff further alleged that before conveyance was executed, defendants nos. 8 and 9 filed Regular Civil Suit No.126 of 1972 against defendants 1 to 7 and Kashinath, the son of the appellant-plaintiff. In that suit temporary injunction was obtained and was served upon the parties. By the said order, defendants 1 to 7 were restrained from alienating the suit house in any manner to son of plaintiff or anybody else. Plaintiff's son was also restrained from obtaining sale deed in his favour. They further alleged that in view of injunction order, defendant nos. 1 to 7 could not execute sale deed in her favour. As per the plaintiff in earlier suit defendant nos. 1 to 7 filed their written statement and they have agreed to sale the suit house to Anusayabai on 3.7.1972. As per plaintiff, defendant nos. 8 to 9 have full knowledge about the agreement of sale in her favour. In spite of this, defendants nos. 8 and 9 have obtained sale deed of the suit house on 4th July 1972. Plaintiff contends that the sale deed is not binding on her and in view of the agreement of sale dated 3.7.1972 she is entitled for specific performance.

(3.) DEFENDANT nos.1 to 7 by their separate written statement resisted the claim. They denied the execution of agreement dated 3.7.1972. According to them, there was no transaction between the plaintiff and defendant nos.1 to 7. As per the defendant nos. 1 to 7, plaintiff's son agreed to assist them in earlier suit. He came to Dombivali and represented to defendant nos. 1 to 7 to get the injunction vacated. As per these defendants it was necessary to show that defendant nos. 1 to 7 have entered into agreement on such representation Kashinath got one nominal agreement for sale thereafter presented the suit agreement has been prepared. As per the defendants their signatures were obtained on blank papers and by using the said document, agreement dated 3.7.1972 is brought in existence.