HARPHUL CHAND SON OF GIRDHARI LAL DIED AND REPRESENTED BY HIS LEGAL REPRESENTATIVES Vs. PRAN NATH SON OF PT. DINA NATA (DIED) AND REPRESENTED BY HIS LEGAL REPRESENTATIVE AND OTHERS

JUDGEMENT

(1.) THE defendant/appellant Harphul Chand (now deceased) has filed this appeal against the judgment and decree of the Additional District Judge, Jullundur dated 20th July, 1970 whereby the decree of the trial Court dismissing the plaintiff's suit was set aside and preliminary decree for rendition of accounts was passed in favour of the plaintiff/respondents.

(2.) ON 10th April, 1958 plaintiffs No. 1 and 2 Prem Nath and Dina Nath along with Baij Nath, predecessor -in - interest of the plaintiffs 3 to 8 jointly purchased in equal share with the defendant/appellant Harphul Chand from the President of India through D.R.C. Jullundur, Urban agricultural land measuring 50 Killas and 18 marlas situated within the Municipal limits of Phillaur, for Rs. 36400/ -. The final bid was taken by the defendant/appellant for and on behalf of all the four vendees stated above Under the rules then in vogue land could have been purchased only in the name of one person On that account the other three vendees had allowed and authorised the defendant to bid at the auction and got certificate of sale in his name even though the price was paid equally by all. According to the allegations in the plaint all these facts were admitted in the memorandum dated 7th of October, 1958. Exhibit P -1 duly signed by all the parties. A sale certificate for the purchase of land was issued in the name of defendant on 17 -12 -1958 on behalf of the President of India. Thus it was stated that all the four vendees became the owners in equal shares of the land purchased. Plaintiff Pran Nath and Baij Nath deceased built their houses on the western side of this plot adjacent to that part of the land where the defendant himself built his own house. All of them were in occupation of their houses since the construction thereof. Since the sale certificate was in the name of defendant/appellant, he was authorised by the other co sharers to sell parcels of the land with their consent and approval, to realise the sale price, to keep the account there of and distribute 3/4 share to the remaining three vendees while keeping 1/4 to himself as a co -owner. The defendant had realised large amounts of money by the sale of parcels of the land. He did not however, render any account to the plaintiffs which he was bound to do. This necessitated them to file the present suit.

(3.) The learned counsel for the appellant vehemently contended: that (i) in view of the agreement Exhibit P -1 dated 7th of October, 1958 only the suit for specific performance could be filed and thus no other suit was maintainable; (ii) The suit was barred by time as it was filed beyond three years from the execution of the agreement Exhibit P -1; and (iii) Exhibit P -1 agreement could not create any title or ownership for the plaintiffs, being unregistered. It may be stated that in the written statement the defendant appellants denied execution of Exhibit P -1 and also denied his signature thereon while appearing in the witness box. It has been concurrently held by both the courts below that the agreement Exhibit P -1 was duly executed between the parties. As regards its admissibility for want of registration, it has been found by the Lower Appellate Court that the plaintiffs have succeeded in establishing that they had interest in the property purchased in the name of the defendant to the extent of 3/4 share. In other words the defendant had 3/4 share of the land in his name as benamidar on behalf of the plaintiff's. From the contents of Exhibit P -1 it is quite clear that the defendant accepted the plaintiffs to be the owners to the extent of 3/4 share in the property purchased in his name. Admittedly, the property was purchased earlier on 10th of April, 1958 for Rs. 36400/ -, whereas this agreement was executed on 7th of October, 1958. Since the property could only be purchased in the name of one person, it was a mutual agreement between the parties that all the four will be owners equally, and therefore, the property had been purchased in the name of defendant -appellant. Thus the nature of the transaction was a benami one and as such Ex. P1 did not require any registration.