QAMRUDDIN (MULLA) Vs. BRIJ MOHANDAS

JUDGEMENT

(1.) THIS first appeal is filed against the judgment and decree of the Additional District Judge, Bhopal, in Civil Suit No.6 of 1954. That suit was filed by respondents 1 to 3 against respondent No. 4 Ghulam Abbass as defendant No. 1 and the appellant Qamruddin as defendant No. 2 for specific performance of a contract of sale of a house.

(2.) THE appellant and respondent No. 4 are brothers who owned half a share each in a house in Bhopal. Respondent No. 4 Ghulam Abbas contracted to sell his part of the house for Rs. 40,000/ - on 5 -4 -1954. Rs. 3,000/ - out of the consideration was paid immediately, Rs. 25,350/ - was to be adjusted towards a mortgage debt and the balance was to be paid at the time of registration. The agreement was in writing, but has not been filed. The plaintiffs alleged that about a week later. Ghulam Abbas agreed to modify the agreement by contracting to sell the portion in two lots for Rs. 30,000/ - and Rs. 10,000/ - respectively. On 17 -4 -1954, a sale -deed for Rs. 30,000/ - was executed by respondent No. 4 but the deed has been retained by him. On 18 -4 -1954 the respondent refused to execute the sale -deed for Rs. 10,000/ -. The house was later sold to defendant No. 2 (appellant) on 29 -4 -1954, that is, two days after the present suit for compelling specific performance had been filed.

(3.) THE appellant as defendant No. 2 pleaded that as soon as he came to know about the contract of sale in favour of the plaintiffs, he gave a notice to them not to purchase the house, as he was exercising his right of pre -emption to purchase it. He purchased the house on 29 -4 -1954 as a pre -emptor and was not therefore, liable to convey the house to the plaintiffs nor could specific performance be enforced against the first defendant.