BIR SINGH Vs. BRIJ KISHORE

JUDGEMENT

(1.) Challenge in the present regular second appeal, which has been filed by the defendants, is to the concurrent findings recorded by the Courts below, whereby suit for specific performance has been decreed. Permanent injunction was also granted by restraining the defendants from alienating the suit land in favour of any other person except the plaintiff.

(2.) Mr. Sanjay Vij, learned counsel for the appellants has mainly raised the argument for admission of the appeal to submit that the case further requires consideration. It has been submitted that there was no proof of readiness and willingness of the plaintiff to perform his part of the agreement and whether he had the financial capacity to pay the balance sale consideration. It is further submitted that the agreement in question itself was inadmissible as per Section 35 of the Indian Stamp Act, 1899 (for short 'the Act') and, therefore, liable to be impounded. The argument that the appellants NO.4, 5 & 7 being minors as such at the time of the agreement was also raised to submit that the suit would not be maintainable in the present form.

(3.) The argument has been rebutted by the learned counsel for the caveator/plaintiff Mr. Raj Kumar Gupta, by referring to the facts and circumstances and how the conduct of the plaintiff shows that he was always ready and willing. He rather had kept serving notices upon the appellants asking them to execute the sale deed in his favour. The fact that they had obtained a stay against their father from alienating the land in question and, therefore, it would not lie in their mouth that the plaintiff did not have the financial means and was not ready and willing to perform his part of the agreement. It is further submitted that no objection had been taken at the time of the exhibition of the agreement to sell (Ex.P6) and, therefore, no objection can be raised at this point of time. Even otherwise, it was not to be impounded for penalty, as per Schedule 1A of the Act, as applicable to the State of Haryana, since Rs.2.25 was the requisite stamp required at that point of time and the agreement was got stamped for Rs.4/-.