HARI MOHAN SINGHI (DEAD) THROUGH L.R. VISHAL MAHESHWARI & ANR. Vs. RAMJIDAS (DEAD) THROUGH LRS SATYANARAYAN & ORS.

JUDGEMENT

(1.) APPELLANTS -plaintiffs have filed this appeal under section 96 CPC against the judgment and decree dated 28.01.1997 passed by IXth Additional District Judge, Gwalior in Original Civil Suit No. 163 -A/96, thereby the trial Court has dismissed the suit filed for specific performance of contract. Originally, plaintiffs, Hari Mohan Singhi and Smt. Shantadevi Singhi, filed a suit for specific performance of contract against defendants, Ramjidas Singhi and Brijmohan Singhi. Plaintiffs pleaded that defendant No. 1 himself and defendant No. 2 through his power of attorney holders, Smt. Taradevi and Smt. Pushpadevi, vide a contract dated 04.02.1979 agreed to sell a house (Bada) bearing Municipal No. 31/138 in a consideration of Rs. 15,000/ - and a shop bearing Municipal No. 31/136 in a consideration of Rs. 20,000/ -. They also received an amount of Rs. 5000/ -, Rs. 2500/ - for each property, as advance in accordance with the aforesaid agreement for sale. It was agreed that the defendants would obtain permission from Urban Land Ceiling Authority for the purpose of sale of properties. Consequently, defendants applied for permission for sale before the Urban Land Ceiling Authority and the Authority granted the requisite permission for sale to the defendants vide order dated 13.04.1979. In spite of that the defendants did not execute sale -deed. Thereafter, plaintiffs served a registered notice to the defendants on 12.07.1979 and they had also gone to the office of Registrar, Registration Department on 20.07.1979 for the purpose of registration, however, the defendants did not come for the Registry. Hence, the plaintiffs filed suit for specific performance of contract. During pendency of the suit defendants No. 1 and 2 died and their legal representatives have been brought on record. Initially, defendant No. 1 and power of attorney holders of defendant No. 2 filed their written statements separately and they admitted the fact of execution of agreement to sale of the House (Bada) and the shop. It has further been stated by them that when the defendants enquired it was found that plaintiffs have committed forgery and they submitted an application before the Urban Land Ceiling Authority for permission for sale and in the aforesaid application amount of sale has been mentioned as Rs. 9500/ - and Rs. 7500/ -. It is further stated that when the defendant No. 1 demanded the money plaintiffs told that 50 per cent of the money be paid at the time of registration and for rest of the money a Pro -note be executed. As such, the plaintiffs violated the terms and conditions of the agreement to sale. After death of defendant No. 2, his legal representatives filed additional written statement on 07.07.1983 denying the fact that defendants No. 1 and 2 were able to execute the agreement. They further stated that the suit property was Joint Hindu Family property and there was no partition of the suit property, hence the defendants have no right to execute the agreement to sale because it was not for the benefit of Joint Hindu family.

(2.) THE trial Court framed eleven issues and found that an agreement to sale was executed between the plaintiffs and defendants No. 1 and 2, however, the plaintiffs were not ready to pay the total amount as agreed in the agreement for registration, hence the defendants refused to execute registration of the sale -deed. The plaintiffs were not ready and willing to perform their part of contract. It has further been held that the suit property was a joint Hindu family property, hence defendants No. 1 and 2 were not entitled to execute the agreement with regard to sale of the said property. On the aforesaid findings the trial Court dismissed the suit. Learned Senior Counsel for the appellants -plaintiffs has submitted that the findings recorded by the trial Court are perverse. The appellant -plaintiffs were ready to perform their part of contract. They were present before the Registrar of Registration Department, but in spite of that the defendants No. 1 and 2 did not execute the sale -deed. Apart from this, as per the agreement, the property was not a joint Hindu family property and no such plea has been taken by the original defendants in their written statements, hence the suit is liable to be decreed. In support of his contentions learned counsel relied upon the following judgments:

(3.) PLEADINGS of both, plaintiffs and defendants, have already been stated above in the judgment. On the basis of the afore said pleadings the trial Court has framed total eleven issues. It is also a fact that during pendency of this appeal, appellant No. 1 has died and defendant No. 1 has also died. Hence, the original plaintiff No. 1 and original defendant No. 1, both have been died during pendency of the proceedings. Issue No. 1 framed by the trial Court is that "Whether there was an agreement between the parties to sell the house (Bada) and shop and whether the defendants changed the consideration of the house (Bada) and shop of Rs. 9500/ - and Rs. 7500/ - and submitted that for the rest of the amount they execute a pronote and on the aforesaid basis the defendants refused to execute the sale -deed". The trial Court answered both Issues No. 1 and 2 in affirmative. The trial Court with regard to Issue No. 3 that plaintiffs were ready and willing to execute the agreement, answered the issue in negative. The trial Court further held with regard to Issues No. 7 and 8 that the daughters and sons of defendant No. 1 are co -sharer in the suit property and defendants No. 1 and 2 were not entitled to execute the agreement. Harimohan (PW -1) in his evidence stated that Ramjidas and Brijmohan entered into an agreement with regard to sale of a Bada and a shop on 04.02.1979. He had also paid an advance of Rs. 2500/ - for each property, total Rs. 5000/ -, as per agreement, for both the properties. It was also agreed that after obtaining permission from the Urban Land Ceiling Authority a sale -deed would be executed. Ramjidas and power of attorney holders of Brijmohan had signed the agreement, Ex. P -1. Thereafter, the defendants submitted two applications before the Urban Land Ceiling Authority for permission to sale the properties. The permission was granted vide order dated 13.04.1979. Thereafter, he issued a notice to the defendants on 12.07.1979, Ex. P -4. As per the notice, he was present before the Registrar of Registration Department on 20.07.1979 along with money for registration of the premises, however, the defendants were not present in the office of Registrar. Thereafter, he along with other persons waited in the office up to 4.00 O'clock and then submitted an application before the Registrar, Ex. P -12. Further he stated that he was willing to perform his part of the contract.