JAINENDRA KUMAR Vs. KAILASH CHAND

JUDGEMENT

(1.) THIS is the defendants appeal against the trial Court's judgment and decree for specific performance, whereby, the defendants No. 1 and 2 had been directed to execute the registered sole -deed in the plaintiff's favour, on receipt of sale -consideration of Rs. 12,000/ - .

(2.) THE defendants Jainendra Kumar, Rajendra Kumar, Vijay Kumar, Ashok Kumar and Rishabh Kumar (defendants No. 1, 2, 4, 5 and 6 respectively) are the sons of the defendant No. 3 Tekchand. It is no longer in dispute that the defendants No. 1 and 2, vide agreement Ex. P -1 dated 6 -12 -73, had contracted to sell 7.55 acres of land out of Kh. No. 562 (old Kh. No. 664 village -Mokalpur) for sale -consideration of Rs. 19,000/ - after having already received the earnest money of Rs. 7,000/ - at the time of execution of the agreement.

(3.) THE plaintiff in his suit, filed initially only against the defendants No. 1 and 2 Jainendra Kumar and Rajendra Kumar had claimed specific performance of the contract, alleging that the defendants No. 1 and 2 had failed to execute the registered sale -deed in his favour as per the terms of the written agreement Ex. P -1, despite his readiness and willingness to perform his part of the contract. During the course of the trial, these defendants' other brothers and father (defendants No. 3, 4, 5 and 6) were also impleaded as the defendants in this suit, on their application for being so joined. Their defence was, however, common. It was contended that the suit -land in question being the ancestral and joint family property of all the defendants, the defendants No. 1 and 2 had no right to alienate the undivided shares of other co -parceners as well. It was, next, urged that the registered sale -deed dated 25 -5 -56 executed by the defendant Tekchand and his uncle Bhaiyalal, in favour of the defendants No. 1 and 2 was a sham transaction. As for the agreement in question, on which the plaintiff had based his claim, it was vehemently pressed that the document was not an agreement of sale but had been executed only by way of security for the prepayment of loan of Rs. 7,000/ - , received by the defendants No. 1 and 2 under document. In this context it was pleaded that the market value of the suit -land being not less than Rs. 30,000/ - , it could not have been sold for a meagre consideration of Rs. 19,000/ - only. As the last resort, it was urged that Ratan Chand and Rajaram, who were not parties to the present suit having already been granted bhumiswami rights in the suit -land under section 190 of the M. P. Land Revenue Code, the claim of the plaintiff was untenable and more so, was incompetent in the absence of these two persons being necessary parties to the suit.