BAJRANGLAL Vs. PURUSHOTTAMDAS PURANLAL NARELE

JUDGEMENT

(1.) THIS is an appeal by the defendants in a suit for specific performance of a contract for reconveyance.

(2.) THE facts now no longer in dispute are that Purushottamdas owned a house (No. 443 old No. 88) in Miloniguni, Jabalpur. He sold this house for a sum of Rs. Equivalent Citation: 10,000/- on December 2, 1963, to Bajranglal. An agreement for reconveyance of the house on payment of Rs. 10,000/-within two years was executed by bajranglal in favour of Purushottamdas. The agreement bears the date December 3, 1963, but the finding of the trial Court, which has not been challenged before us, is that it was executed on December 2, 1963 and the sale and agreement constituted one transaction. Possession of the house was not delivered to bajranglal and Purushottamdas continued to be in possession. He, however, executed a rent-note agreeing to pay rent at the rate of Rs. 120/-per month. Previously, the same house was mortgaged on December 7. 1960, in favour of firm Fatehchand Shrinivas for a sum of Rs. 1,500/ -. The mortgage was in the nature of a mortgage by conditional sale, Bajranglal happens to be the managing partner of the Firm Fatehchand Shrinivas.

(3.) THE suit giving rise to this appeal was instituted by Purushottamdas on december 2, 1965, against Bajranglal and Firm Fatehchand Shrinivas. The case of the plaintiff as pleaded in the plaint was that the sum of Rupees 10,000/constituting consideration of the sale consisted of previous loans of which Rs. 3,000/- were principal and Rupees 7,000/-were interest. It was also pleaded that at the time of sale Bajranglal had promised to explain the accounts of the previous transactions, but that was never done. It was further alleged that the sale together with the agreement for reconveyance constituted a mortgage and the plaintiff was entitled to redeem the house after paying the sum which is found due on the reopening of the accounts. In the alternative, the plaintiff also pleaded that he has always been ready and willing to perform his part under the agreement for reconveyance and to pay Rs. 10,000/-for obtaining reconveyance. It was alleged that the plaintiff gave a notice on November 26, 1965, to the defendants to come to Jabalpur on December 1, 1965, for executing a conveyance on payment of Rs. 10,000/-, but the defendants did not turn up. The plaintiff expressed his readiness to pay Rs. 10,000/- and such other sums which may be adjudged payable from the plaintiff to the defendants. The relief in the suit was for reconveyance of the suit house from the defendants by way of redemption, or in the alternative, by way of specific performance. The defendants contested the suit denying that the sale and the agreement for reconveyance constituted a mortgage by conditional sale or that the defendant No. 1 Bajranglal had promised to explain the accounts later. The plaintiff's readiness and willingness to pay Rs. 10,000/-, and to take reconveyance was also disputed. During the trial the plaintiff gave up his case of redemption and confined his case to that of specific performance of the agreement for reconveyance. The trial Court held that the plaintiff was always ready and willing to perform his part of the contract and that he was entitled to specific performance. A decree was, therefore, passed against defendant No. 1 for specific performance of the agreement for reconveyance on condition of payment of Rs. 10,000/ -. The defendant No. 2 was discharged from the suit. Against this decree both the defendants have preferred this appeal.