DAMROOLAL HARCHAND Vs. LAXMINARAYAN RAMANUJDAS BRIJPURIA

JUDGEMENT

(1.) THE suit out of which this appeal arises was brought by the appellants, as plaintiffs, for specific performance of contract against the defendant-respondent No. 1, Laxminarayan. In the suit, they impleaded respondent no. 2, Shrimati Sumitrabai, widow of Badriprasad, as defendant No. 2, and ku. Ashabai, illegitimate daughter of Laxminarayan, as defendant No. 3. They were so impleaded in order that, in the event it was found that the contract was not enforceable against Smt. Sumitrabai, the plaintiff may get a decree for specific performance against the respondent No. 1, so far as his interest in the property in suit was concerned, with abatement of the purchase price, for partition and separate possession thereof. The 2nd Additional District Judge, Sagar, has however, dismissed the suit holding the plaintiffs to be in breach.

(2.) THE material facts, shortly stated, are these. By an agreement in writing dated March 23, 1967, Ex. P-1, the plaintiffs agreed to purchase and the defendant No. 1 and his father Ramanujdas agreed to sell all their right, title and interest in the property in suit, being a house in Katra Bazar, Sagar, for a consideration of Rs. 11,750, of which Rs. 1750 were paid as earnest. The date for completion was on or before May 5, 1967. In the meantime, on March 30, 1967, the defendant No. 2, Smt. Sumitrabai, acting as guardian of her minor daughter, Ku. Ashabai, defendant No. 3, served the plaintiffs with a lawyer's notice, Ex. P-2, intimating that the property they intended to purchase was joint family property and was subject to the charge of maintenance of Ku. Ashabai as ordered by Criminal Court under section 488 of the Code of Criminal Procedure.

(3.) ON receipt of the the notice, plaintiffs apparently met the defendant no. 1, Laxminarayan, and insisted that the defendent No. 2, Smt. Sumitrabai," should join in executing the sale deed. This is clear from the defendant No. 1's notice, Ex. P-5, to the effect-<img>C:\program Files\regentdatatech\image\np_(1)_518_mplj_1976.jpg</img> On April 11, 1967, Ramanujdas died.