GUDIAL SARUP Vs. KAUSHALYA KAPUR

JUDGEMENT

(1.) THIS Regular Second Appeal has been filed by the plaintiff against the judgment and decree dated 26.9.1987, passed by the learned Additional District Judge, whereby the appeal, filed by the defendants, was accepted, the judgment and decree of the trial Court, were set aside and the suit of the plaintiff was dismissed.

(2.) THE facts, in brief, are that Gurdial Sarup, plaintiff-appellant, filed a suit for possession by way of specific performance of the agreements to sell dated 7.11.1977 and 30.11.1977. Initially, the suit was filed against defendant No. 1, Kaushalya Kapur, widow of Tek Chand, and subsequently, defendant Nos. 2 to 6, who were sons and daughters of Tek Chand, deceased, were also impleaded as defendants. As per the allegations of the plaintiff, defendant No. 1, Smt. Kaushalya Kapur, had agreed to sell the house in question to the plaintiff for a sale consideration of Rs. 13,000/-, vide agreement dated 7.11.1977 and she received Rs. 1,000/- as earnest money from the plaintiff and it was stipulated that she would execute the sale deed on 30.11.1977. It was alleged that on 30.11.1977, when the plaintiff brought the sale consideration and registration expenses, defendant No. 1 informed the plaintiff that there was some liability of her husband to the Cooperative Bank, by way of pledging the house with the Bank and she sought some more time to discharge the liability and by another agreement dated 30.11.1977, she agreed to execute the sale deed on 30.12.1977. It was alleged that on 30.12.1977, the plaintiff remained present in the office of Sub Registrar throughout the day along with the balance sale consideration to be paid to defendant No. 1, but she did not turn up and the sale deed could not be executed. On the same day, the plaintiff had sworn an affidavit before the Oath Commissioner, regarding his readiness to perform his part of the contract. It was alleged that the plaintiff throughout was ready and willing to perform his part of the contract, but defendant No. 1 had declined to execute the sale deed, even though the amount due had been paid to the Bank on 24.7.1980. It was alleged that defendant No. 1 had entered into agreement with the plaintiff, claiming herself to be the exclusive owner of the property, on the basis of a Will, which was executed in her favour of her husband, Tek Chand, deceased, and that the other defendants were also the consenting parties.

(3.) AFTER bearing both the sides, the learned trial Court decreed the suit of the plaintiff for specific performance of the agreement to sell, on payment of the balance sale price of Rs. 12,000/-. The appeal, filed by the defendants, was accepted by the learned Additional District Judge, the judgment and decree of the trial Court were set aside and the suit of the plaintiff was dismissed, holding that the plaintiff was not ready and willing to perform his part of the contract. Aggrieved against the judgment and decree of the learned Additional District Judge, the plaintiff filed the present Regular Second Appeal in this Court.