GURDIAL 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 Co-operative 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 alongwith 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.) The suit was contested by the defendants. Defendant No. 1, in her separate written statement, alleged that the value of the house was not less than Rs. 40,000/- and that it was pleaded with the Co-operative Bank against a loan and that the purchaser had promised to pay the entire amount of encumbrance to the Bank, in addition to the sale consideration of Rs. 13,000/-. It was alleged that on 30.11.1977, she was told that the plaintiff was not ready with the cash amount required to be paid to her and also, to the Bank, whereupon time for execution of the sale deed was extended upto 30.12.1977. It was alleged that on 30.12.1977, when she came to the Tehsil Compound, even at that time the plaintiff was ot possessed of the requisite cash for execution of the sale deed and she was requested for extension of time, but she declined. It was alleged that thereupon, defendant No. 1 deposited the amount due with the Bank, by selling the house of her mother and the agreement stood cancelled and the earnest money of Rs. 1,000/- stood forfeited. It was alleged that defendant No. 1 was always ready and willing to perform her part of the contract. In the written statement, filed by defendant Nos. 2 to 6, it was alleged that defendant No. 1 was not the sole owner of the house in dispute and that the agreement was void to the extent of their share in the said house, as they had also inherited the house alongwith defendant No. 1, on the death of their father, Tek Chand. It was alleged that defendant No. 1 had no right or authority to alienate their share, as she had not become the owner of the house, by virtue of any Will. On the pleadings of the parties, the trial Court framed various issues and additional issues.