GIRDHARI LAL Vs. MST MAKHANIYA BAI

JUDGEMENT

(1.) Being aggrieved by the judgment-decree dated 1-2-90 passed by III ADJ, Chhindwara in C.A. No. 10-A/88 affirming the judgment-decree dated 6-1-88 passed by Civil Judge Class II, Chhindwara in C.S. No. 17-A/85 plaintiff/appellant has preferred this appeal under Section 100, C.P.C.

(2.) The appeal has been heard on the following substantial questions of law :-

(3.) Appellants are legal heirs of original plaintiff late Girdhari Similarly respondents are legal heirs of original defendant late Smt. Makhaniya Bai. Ghudan, husband of Smt. Makhaniya Bai in C.S. No. 5-A/80 obtained a money decree against late Girdhari Lai and his father Pyarelal for recovery of Rs. 10,000/-. Since Girdhari Lal, Pyarelal were unable to pay the decretal amount, agreed to sell the suit land khasra No. 51/1 Area 3.78 acres village Lonikalan Tehsil and District Chhindwara in lieu of decretal amount to Ghudan. Therefore, in full and final satisfaction of the money decree in C.S. No. 5- A/80, Ghudan executed the requisite document dated 16-12-81 (Ex.D/1) recording discharge of liability of late Girdhari Lal, Pyarelal and directed them to execute the registered sale deed in favour of his wife defendant late Makhaniya Bai. Accordingly, late Girdhari Lal executed the registered sale deed dated 16-12-81 (Ex. D/1) in favour of defendant late Makhaniya Bai. On execution of registered sale deed (Ex. D/2) an arrangement was made vide agreement (Ex. P/1) that late Girdhari Lal on payment of total sum of Rs. 12,000/- by 16-12-86 may seek reconveyance from defendant late Makhaniya Bai. Agreement dated 16-12-81 (Ex. P/1) accordingly was executed by defendant late Makhaniya Bai agreeing to execute a registered sale deed in favour of late Girdharilal on payment of aforesaid sum by 16-12-86. In pursuance of agreement (Ex. P/1) late Girdharilal in the year 1985 offered the stipulated amount and made a request for reconveyance in his favour. However, defendant late Makhaniya Bai refused to do the needful as such Girdharilal sent the notice dated 25-11-85 (Ex. P/4) per registered post. Since defendant late Makhaniya Bai did not comply with the direction and resiled from the agreement (Ex. P/l), late Girdhari Lal instituted C.S. No. 171-A/85 for specific performance of agreement dated 16-12-81 (Ex. P/l) directing defendant late Makhaniya Bai to execute the registered sale deed and place him in possession of the suit land. Defendant late Makhaniya Bai filed her written statement dated 23-4-86 and resisted the suit stating inter alia that no such agreement agreeing to execute a reconveyance on receipt of stipulated sum had been executed in favour of late Girdharilal. Subsequently, the written statement was amended to the effect that husband Ghudan infact was the purchaser of the suit land and got executed the registered sale deed (Ex. P/2) in her favour, as such she being the Benami owner has no right-title to execute the agreement dated 16-12-81 (Ex. P/ 1) agreeing to execute the reconveyance on receipt of amount Rs. 12,000/- from late Girdharilal. The Civil Judge in C.S. No. 171-A/85 vide judgment dated 6-1-88 held that defendant late Makhaniya Bai executed an agreement dated 16-12-81 (Ex. P/l) agreeing to execute a registered sale deed of suit land in favour of plaintiff late Girdhari Lal on payment of Rs. 12,000/- by 12-12-86. Plaintiff late Girdhari Lal in the year 1985 itself offered to tender Rs. 12,000/- and asked the defendant Makhaniya Bai to execute registered sale deed in his favour. However, defendant late Makhaniya Bai resiled from the agreement. The Civil Judge emphasizing on document discharging of decretal amount of C.S. No. 5-A/80 (Ex. D/l) held that infact Ghudan was the purchaser of the suit land, however, got executed a registered sale deed. (Ex. D/2) in favour of his wife defendant late Makhaniya Bai. As such, defendant late Makhaniya Bai being ostensible owner Benami had no right-title to enter into agreement (Ex. P/l) to execute a registered sale deed in favour of late Girdhari Lal on payment of stipulated sum by 16-12-86. Therefore, the suit seeking specific performance of contract-agreement (Ex. P/1) was dismissed. Being aggrieved, plaintiff/appellant preferred C.A. No. 10-A/88 before the III ADJ, Chhindwara. The Court below affirming the judgment-decree passed by the Court below dismissed the appeal vide impugned judgment-decree dated 1-2-90.