LAKSHMI Vs. AJAY KUMAR

JUDGEMENT

(1.) This is defendant's appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity the Code') challenging the view taken by the learned District Judge, Sangrur, in his judgment and decree dated 5-10-2001 holding that the suit of the plaintiff-respondent No. 1 for specific Against order of R. M. Gupta, District Judge, Sangrur, D/- 5-10-2001. performance of contract dated 26-10-1994 entered between the plaintiff-respondent No. 1 and defendant-appellant along with two others deserve to be decreed in favour of the plaintiff-respondent No. 1. It has further been held that Shri Om Parkash, defendant- respondent No. 4, who is one of the share holder in the suit property, could not be considered as a lunatic or a person of unsound mind. The learned District Judge has reversed the findings recorded by the trial Court in its judgment and decree dated 27-11-1998, whereby the learned trial Court had dismissed the suit of the plaintiff-respondent No. 1.

(2.) The case of the plaintiff-respondent No. 1 as emerges from the pleadings is that Lakshmi daughter of Daulat Ram (defendant-appellant) along with Sant Ram Chatwala son of Duni Chand (defendant-respondent No. 2), Bimla Devi daughter of Duni Chand (defendant-respondent No. 3) and Om Parkash son of Daulat Ram (defendant-respondent No. 3) were owner of a house No. 604, measuring 123 Sq. Yds. situated at Sangrur, as fully described in the head note of the plaint. They had agreed to sell the house to the plaintiff-respondent No. 1 for a sum of Rs. 1,70,000/- vide written agreement dated 26-10-1994. Sant Ram Chatwala, defendant-respondent No. 2, had executed the agreement on behalf of his sister being her Special Attorney. A sum of Rs. 50,000/- as earnest money was paid and another sum of Rs. 50,000/- was to be paid upto 15-2-1995. The sale deed was to be executed by 30-4-1995 when the payment of balance sale consideration was also to be paid. The house was in possession of the defendant-appellant Smt. Lakshmi Devi who also signed the agreement to sell in token of her consent stating that she would deliver the vacant possession of the house to the plaintiff-respondent No. 1 at the time of execution of the sale deed. The plaintiff-respondent No. 1 claimed that he has always been ready and willing to perform his part of the contract because on 15-2-1995 i.e. the agreed date for execution of the sale deed, he sent a telegram to Sant Ram Chatwala, Bimla Devi and Om Parkash to accept the balance amount of sale consideration and to execute the sale deed. The receipt of the telegram was acknowledged by the defendant-respondents, 2 to 4 namely Sant Ram Chatwala, Bimla Devi and Om Parkash who had agreed for execution of the sale deed as per the terms of the agreement. However, despite legal notice those defendant-respondent Nos. 2, 3 and 4 did not execute the sale deed. The suit was not contested by defendant-respondent Nos. 2, 3 and 4 and they were proceeded ex parte after a notice was published in the newspaper in the English daily The Tribune', dated 24-8-1996. However, the suit was contested by the defendant-appellant who was impleaded as defendant No. 4 in the suit. She denied the execution of agreement to sell and assented that the aforementioned three persons, who were proceeded ex parte, had never agreed for the sale of their house. She further pleaded that Om Parkash, defendant-respondent No. 4, was of unsound mind. It was claimed that Om Parkash had been under the constant treatment of Mental Doctor. Defendant-appellant further claimed that she was in possession of the house as a tenant @ Rs. 200/- per month.

(3.) After framing issues, recording evidence and hearing arguments of the parties, the trial Court recorded a categoric finding that Om Parkash, respondent-defendant No. 4 is a person of unsound mind and as such he could not have executed any agreement nor any such agreement is binding on him. The analysis of the evidence as well as conclusion drawn by the trial Court on the aforementioned issue read as under :-