S MOHAMMED ANWARUDDIN Vs. SABINA SULTANA

JUDGEMENT

(1.) This is an appeal by the defendant against the judgment and decree dated 3-11-1980 in O.S.No.707 of 1979 passed by the I Additional Judge, City Civil Court, Hyderabad brought by the respondent/plaintiff to enforce specific performance of oral agreement to sell a house bearing No. 245/L2 at Mallepally allotted by the Housing Board in favour of the defendant.

(2.) Upholding the defendant's plea that the agreement was hit by the provisions of Benami Transactions (Prohibition) Act, earlier the appeal was allowed dismissing the suit of the plaintiff. The finding of applicability of Benami Transaction has been reversed by the Division Bench on the plaintiff's further appeal in L.P.A.No.277 of 1991 dated 23-2-1996 but dismissed the appeal on the plea that agreement is opposed to public policy and hence void under Section 23 of the Indian Contract Act, 1872. Aggrieved by the same plaintiff successfully carried the matter in appeal before the Supreme Court in Civil Appeal No. 15456 of 1996 with special leave, wherein the Supreme Court after setting aside the judgment and decree passed by the Division Bench in LPA No.277 of 1991 and C.C.C.A.No.7/81 restored the appeal to its file to be decided afresh. That is how the matter is posted before this Court for fresh hearing on merits. Pleadings:

(3.) The pleadings, which are not in dispute, as pleaded are as under: The respondent/plaintiff is the daughter of late Mohammed Baquer who retired as Superintendenf in Excise Department. The defendant/appellant, who was in a difficult financial condition, was taken under the patronage of plaintiff's father and helped him in achieving the present status. In the year 1966, the plaintiff's father made the defendant to obtain an application from the A. P. Housing Board for allotment of 2 RT house in Hyderabad and made the defendant apply for allotment with an intention that the house, if allotted, would be assigned in favour of plaintiff. On defendant getting allotted the suit schedule property plaintiff's father paid a sum of Rs.4,200/- to the defendant for payment of earnest money towards 20% of the cost of the house so allotted and proposed to finance further for payment of instalment dues to the Housing Board with an understanding that after getting the property conveyed in favour of the defendant, he shall covey the same in favour of the plaintiff on payment of all the dues payable to the Housing Board. The defendant having agreed for the said proposal acknowledged receipt of amount of Rs.4,200/- under document Ex.A-3 dated 7-10-1967. Subsequently the father of the plaintiff started financing the defendantforenabling him to pay instalments to the Housing Board. The defendant handed over the allotment order Ex.A-1 and plan Ex.A-2 to the plaintiff's father. In the year 1968, defendant agreed in the presence of relatives and family members of late Baquer that Baquer alone will pay the instalments of the house year after year and as when the entire sale consideration of the house is paid to the Housing Board, defendant will get the suit house conveyed in the name of Baquer or his nominee and accordingly, plaintiff's late father remitted the annual instalments from 1968 under Challans till his death on 29-9-1970. Late Mohd. Baquer transferred his right to obtain the sale deed in favour of the plaintiff in the presence of defendant and his family members, directing the defendant to convey the title of suit house in favour of the plaintiff soon after she pays all the dues to the Housing Board, for which the defendant agreed provided the plaintiff bears the registration expenses for execution of sale deed in favour of defendant by the Housing Board and later in her favour. As per the said oral understanding, the plaintiff remitted the instalments due to the Housing Board from the year 1971 upto 18-6-1979 on which date she deposited a sum of Rs.17,489/-towards balance outstanding amount under a Challan dated 18-6-1979 apart from various amounts from 1968 to 1979 under Exs.A-5 to A-18. On allotment, the Housing Board delivered possession of the house to the defendant and the defendant handed over the same to the plaintiff's father-Baquer who in turn handed over the same to the plaintiff and she is in possession of the suit property. When the plaintiff approached the defendant after payment of Rs. 17,489/- under Ex. A-18 to get the house conveyed in her name, defendant with a mala fide intention evaded performance of his part of contract. Therefore, plaintiff got issued legal notice dated 26-7-1979 - Ex.A-19, but the defendant who received under Ex. A-20-postal acknowledgement has not chosen to give any reply. In view of the same, plaintiff filed the above suit.