MAHIBUB GHUDUBHAI SILEDAR Vs. HANMANTRAO NILAPPA PATIL

JUDGEMENT

(1.) THIS appeal is filed by original defendant No. 1 against the decree passed by the trial Court in the suit filed by present respondent No. 1 for specific performance of the Agreement for Sale of the suit property dated 20-5-1970 (Exh. 68) signed by original defendants No. 1 and 3 (Appellant and respondent No. 2 respectively in this Court) which agreement was reiterated by a registered document/agreement (Exh. 69) on 1-6-1970 (but which was signed only by original defendant No. 2 ). By the agreement dated 20-5-1970, both defendants Nos 1 and 2 agreed to sell the entire suit land to the plaintiff (respondent No. 1 before me) for a total sum of Rs. 15,000/ -. The defendants are Muslims and there is no dispute before me at this stage that defendant No. 2 had 40 paise share in the property, whereas original defendant No. 1 had only 23. 1/3 share in the same. Both of them had, between themselves, thus, 63 1/3 share in the suit property which was agreed to be sold by the two defendants to the plaintiff. The case of the plaintiff, however, has been that both of them represented to the plaintiff that they had the authority to sell even the share of the other shares, defendants Nos. 3 to 5, in the property. At least at this stage there is no dispute that at the time of the agreement dated 20-5-1970 (Exh 68) a sum of Rs 100/- was paid by the plaintiff as earnest money. A registered Sathekhat was executed on 1-6-1970 (Exh 69) in favour of the plaintiff and at that time the plaintiff paid a further amount of Rs. 3000/- towards the performance of his part of the contract. The plaintiffs suit for specific performance of the said agreement of sale. The suit was opposed mainly by defendant No. 1. The trial Court has negatived the contention of defendant No. 1 and has decreed the plaintiffs suit, but only to the extent of Rs. 63. 1/3 percent, meaning thereby that out of the total property the plaintiff is held entitled to a Sale Deed in respect of a portion equivalent to 63. 1/3 percent of the property. The consideration payable by the plaintiff has therefore been reduced by the learned Judge proportionately and a decree for specific performance for that much portion of the suit property upon payment of balance of proportionate consideration has been passed by the learned Judge. The present appeal is filed by original defendant No. 1, who was the main contestant in the trial Court. Facts Undisputed and indisputable

(2.) (A ). The suit property is Survey No. 52/1-A, situated at Village Tirth, Taluka South Solapur, District Solapur. It admeasures 13 Acres 28 Gunthas and is assessed at Rs. 6. 12. Admittedly it belonged originally to one Kutubsaheb. The following genealogy will help the understanding of the shares of the various defendants in the said property :---Kutubsahebkutubsaheb had two sons : Hazratsaheb and Ghudubhai and daughter Biyamma, (Ghudubhai died in 1969, quite some time before the date of Agreement in question, leaving behind his widow Malanbi, who is defendant No. 3. in the suit and son Mahibub (defendant No. 1) and Rasulma (defendant No. 4 ).

(3.) ALL the above mentioned facts are stated in the plaint. It appears to be the further contention of the plaintiff in the plaint is that defendants No. 1 and 2 had the authority of the remaining defendants Nos. 3 to 5 to enter into the Agreement of Sale of he suit land and to transfer their right, title and interest in the suit land in favour of the plaintiff. In the alternative, the plaintiff has contended that defendants Nos. 1 and 2 represented to the plaintiff that they had the authority to enter into the transaction on behalf of the remaining defendants and to execute the sale deed on behalf of the said defendants as well. Prayer therefore was made in the plaint that the defendants should be directed to execute the sale deed in respect of the entire suit land upon receiving from the plaintiff the balance of the said price, viz. Rs. 11,900/ -. It is unnecessary to refer to the other consequential prayers made in the plaint. Summary of Written Statement