NANA SAHEB VISHWASRAO DEORE Vs. PARWATIBAI

JUDGEMENT

(1.) This is an appeal of the original plaintiff, who filed the suit on the basis of agreement of sale (Exhibit 55) of January 17, 1963, seeking specific performance thereof and also praying for relief of declaration that the judgment and decree (Exhibits 38 and 39) of July 10, 1962 in Regular Civil Suit No. 50 of 1962, obtained earlier, be declared to be collusive and as such not binding. The suit agreement is admittedly executed by defendant No. 1 Baburao. The judgment and decree which was questioned was obtained by defendant No. 2 Parwatibai against defendant No. 1 Baburao.

(2.) The case of the plaintiff had been that Baburao was the owner of the property, being the suit house which was purchased by his father Dagadu under a registered deed of purchase of May 4, 1933 (Exhibit 50). After Dagadu's death, which occurred in July 1942, Baburao became the sole owner of the property. He had under Exhibit 56 initially agreed to convey this property to one Rajaram (P.W. 2), for a consideration of Rs. 9,000/- and had received an earnest money of Rs. 2,000/-. After cancelling that agreement, the suit agreement was entered into for a consideration of Rs.10,000/- and Baburao received Rs. 2500/- as earnest money, out of which 2000/- were paid to Rajaram whose agreement was duly cancelled. In spite of the fact that the plaintiff was ready and willing to perform his part, Baburao was avoiding the same. With regard to the decree obtained by Parwatibai against Baburao, it was the case of the plaintiff that it was all collusive and was obtained with a view to shield the property.

(3.) At Exhibits 20 and 21 are the written statements of Baburao and Parwatibai. Briefly stated, these written statements disclaimed the plaintiff's assertion. Even Baburao's written statement asserts that the suit house was the joint property of his father Dagadu and Parwatibai's husband Shankarrao, Dagadu's brother. It is further stated that Dagadu before his death had directed that Parwatibai should be maintained and further that the half share of Parwatibai in the suit house was got recorded the City Survey Record as per the wish of Dagadu. It was asserted that defendant No. 1 was incurring loans for his own vices and, therefore, Parwatibai instituted a suit for the purpose of partition which was not filed in collusion and it was then stated that defendant No. 2 took out Darkhast proceedings and attached the undivided half share in the house and when defendant No. 1 engaged one Zulal B. Patil, Pleader, in the matter, it was that Pleader who by practising fraud and holding out false representations with regard to the Darkhast got executed the suit agreement. The said agreement, therefore, was not binding. It was further stated that under that agreement only Rs. 200/- were paid and in spite of demand on the said Pleader Patil, the further amounts were not paid. It was asserted that the decree obtained by Parwatibai was valid and binding.