MOHINI Vs. VIDHYAWATI RATHORE

JUDGEMENT

(1.) THE defendants having lost from the Trial Court has challenged the judgment and decree dated 15-4-1993 for specific performance of contract passed in favour of plaintiff by First Additional District Judge, Sagar in Civil Suit No. 5-A/1989, by preferring this appeal.

(2.) THE respondents are the legal representatives of plaintiff Krishna Kumar Rathore who during the pendency of the suit died. Defendants/appellants are the heirs of Nanku Ram Sonkar. In brief the case of the plaintiff is that Nanku Ram entered into an agreement of sale with plaintiff/krishna Kumar on 20-11-1987 in respect to the suit house. A document to that effect was executed on that day and in pursuance to the contract, plaintiff/krishna Kumar paid a sum of Rs. 7000/- to deceased Nanku Ram. It was agreed between the parties that balance amount of consideration Rs. 16,000/-would be paid to Nanku Ram and thereafter he (deceased Nanku Ram) will execute a sale deed in favour of plaintiff. It is no more in dispute that Nanku Ram after executing the document of agreement to sell breathed his last in December, 1987. According to the plaintiff, he insisted deceased Nanku Ram in his life time and after his death to his heirs (defendants) to execute sale deed after obtaining the balance amount of consideration Rs. 16,000/ -. Nanku Ram, during his life time and after his death present defendants avoided to execute the sale deed, as a result of which plaintiff on 27-1-1989 and 3-3-1989 sent two notices to get the sale deed executed but neither they sent any reply to the notice nor executed the sale deed. Hence, the present suit for specific performance of contract has been filed. According to the plaintiffs, they are still ready to purchase the suit property on payment of balance sale price Rs. 16,000/-and they are also ready to bear necessary expenses. An alternative prayer to refund the advance amount Rs. 7,000/- with 12% per annum interest has also been made.

(3.) THE defendants/respondents though initially denied the execution of the document of agreement of sale by their predecessor Nanku Ram and also denied averment that original plaintiff Krishna Kumar ever paid any amount of Rs. 7,000/-, however, in special pleas of their written statement, they pleaded that in the riots of year 1984, the suit house became dilapidated and for its alteration and also for the purpose of installation of water and electric connection, it became necessary to execute a document of agreement and for that purpose, the plaintiff by playing fraud, obtained signature of deceased Nanku Ram on a stamp paper. However, that portion of the stamp paper was later on torned on which logo of stamp was embossed and on the remaining portion of the stamp paper, plaintiff prepared a forged document of impugned agreement of sale. It has further been pleaded that the suit house is property of Hindu undivided family and, therefore, deceased Nanku Ram was not having exclusive right to alienate the suit house.