KANJI BIBI Vs. MOHAMMAD SIDDIQUE

JUDGEMENT

(1.) Defendant No. 1 in an appeal against the Judgment and decree dated 18th March, 1980 modifying the judgment and decree dated 23rd February, 1978 passed by the learned Sub-ordinate Judge, 9th Court, Alipore in Title Suit No. 28/75.

(2.) Factual secenario leading to this appeal summarily stated thus :- Respondent Nos. 1 and 2 (hereinafter referred to as plaintiff) filed a suit in the Court of Sub-ordinate Judge, 9th Court, Alipore in T.S. No. 28/75 for specific performance of contract of sale on the ground that the respondent No. 3, hereinafter referred to as defendant No. 1 had executed a register power of attorney on 30.3.1950 in favour of respondent Nos. 4 and 5 (hereinafter referred to as defendants 2 and 3) authorising them to sell the suit property for Rs. 8,000/- to the plaintiffs. Pursuant to the said power of attorney the defendants 2 and 3 executed an agreement in favour of the plaintiffs on 10th February, 1965, received an earnest money of Rs. 4,000/- and put them into possession of the suit premises. The defendant Nos. 2 and 3 agreed to execute the sale deed in favour of the plaintiffs immediately after the defendant No. 1 returned to India from Pakistan. When the defendant No. 1 returned to India on or about middle of March 1975 and he did not execute any sale deed in favour of the plaintiffs, there was a 'salish between the parties but the defendant No. 1 instead of executing any sale deed in favour of the plaintiffs created a document of conveyance selling the property to the defendant No. 4. The plaintiffs were agreeable and tendered the balance consideration money to the defendant Nos. 1 & 3 but since they failed to execute the sale deed in favour of the plaintiffs, the latter finding no other alternative, filed the present suit for specific performance of the contract.

(3.) The defendants 1 and 4 contested the suit by filing written statement. It is, inter alia, pleaded that though the defendant Nos. 2 and 3 did not authorise him to execute any property much less the suit premises. It is further denied that the consideration amount had been ever received by defendant No. 1. The defendant No. 4 claimed herself as a bona fide transferee for consideration and she had no notice of the earlier agreement of sale in favour of the plaintiffs as claimed by them. The specific stand was taken by the defendant No. 1 before the trial court that assuming the power of attorney executed in favour of the defendant No. 2 is true, yet the same being void, the defendant No. 2 could not have executed an agreement in favour of the plaintiffs. The learned trial court has however, recorded a finding that the defendant No. 2 was not a minor on the date of agreement. It had also further held that the defendant No. 1 was the owner of the property. From the findings of the trial court it appears that the defendant No. 4 was a bona fide purchaser who had no notice about the previous agreement in favour of the plaintiff. Therefore, in the above situation, the trial court passed a decree for refund of the earnest money of Rs. 4,000/- by the defendant Nos. 1 to 3 jointly and severely to the plaintiff but refused the prayer of specific performance of contract.