INDUBALA DEVI Vs. JITENDRA NATH GHOSE

JUDGEMENT

(1.) This is an appeal by the defendant against a concurrent decree for specific performance of a contract. The plaintiffs' case is that they were owners of property of schedule A to the plaint in equal shares. Originally one Subodh Chandra Ghosh, father of the plaintiff No. 2, had -/8/- share therein and this share was set apart fictitiously by lease in favour of one Bhajahari to avoid any possible claim by co-sharers of Subodh; the transaction thus was a benami affair, the possession remaining with Subodh. After his death, the plaintiff No. 2 acquired his interest by a deed of settlement. The defendant knowing fully the real position, purported to acquire the interest of the said fictitious tenant by registered document which also included schedule 'B' property which is situate on the contiguous south of 'A' schedule property. The defendant wanted to excavate a tank in 'A' schedule property and the plaintiffs instituted a suit being Title Suit No. 150 of 1060 for declaration of their right, title and interest in 'A' schedule property and for khas possession thereof and also for restraining the defendant from excavating the tank as also from disturbing the possession of the plaintiffs. This suit was compromised by a joint petition filed in the said proceeding whereby the parties agreed that the defendant would execute a kobala in respect of her interest in properties of schedules A and B on receipt of Rs. 1600/-and such document was to be executed and registered within one month. Thereafter, as the defendant wanted to resile from the contract, the plaintiffs filed a petition under Order 23, Rule 3 for recording the compromise. The compromise was recorded by court and the suit was disposed on August 31, 1962 and the compromise petition was made a part of the decree. The plaintiffs thereafter put the decree in execution, for execution of the sale deed in terms of the compromise. The defendant objected to the said exe" cution which was allowed and upheld and affirmed in appeal. The plaintiffs accordingly filed the present suit on July 24, 1064 on depositing the full consideration money, praying for the specific performance of the contract entered into by the parties by the said joint petition.

(2.) The suit was contested by the defendant who filed a written statement contending inter alia that the suit was barred by limitation, time being the essence of the contract, that the alleged agreement was false and fraudulent, based on undue influence and misrepresentation. Further the 'A' schedule property was legally settled to Bhajahari who after remaining in possession for twelve years, thereby also acquiring good title by adverse possession, sold it to Radha Rani Debi who in her turn, while in possession thereof, sold, the same along with 'B' schedule property to the defendant on April 4. 1960 for valuable consideration. It was further alleged by the defendant that she was a purdanasin lady and put her thumb impression on a paper brought to her by her husband and son on a plea of taking time. There was never agreement for sale nor was any consideration settled. The agreement was thus void and illegal. Alternatively it was stated that the contract not being complied with by the plaintiff within time it was unenforceable in law.

(3.) On the above pleadings the parties went to trial before the learned Munsif, who on a consideration of the materials on record, held that the contract was not void for fraud and undue influence nor was time the essence of the contract. It was further found that the plaintiffs established that they were always willing and ready to perform their part of the contract and the defendant was not entitled to benefit of Section 16 of the Specific Relief Act. Further there is no dispute about the identity of 'B' schedule property. The suit was accordingly decreed.