HARBAKHSH SINGH Vs. RAM RATTAN

JUDGEMENT

(1.) Sukhdev Singh, respondent No. 2, entered into an agreement on July 19, 1972 with Ram Rattan, respondent No. 1, to sell his one-half share in the property in dispute for a consideration of Rs. 48,500/- and received Rs. 10,000/- as earnest money. He undertook to get his share separated by filing a suit and the deed was to be executed within one month of the passing of the final judgement. If the suit was not disposed of within one year, he agreed to pay interest on the earnest money at the rate of 3 per cent per annum. A suit was filed for partition by him, but was dismissed for not prosecution. The application filed by him to get the suit restored was also dismissed. On the same day on which the suit was dismissed for non-prosecution, respondent No. 1 filed this suit for permanent injunction restraining respondent No. 2 from committing the breach of the agreement and transferring his share to any one except the plaintiff. Bring the pendency of the suit, respondent No. 2 sold his share to the appellants vide sale deed dt. Feb. 4, 1975, whereupon the plaintiff converted the suit into one for specific performance.

(2.) Respondent No. 2 admitted the execution of the agreement of sale, but pleaded that after the dismissal of the suit for partition filed by him, it was the plaintiff who was not willing to complete the sale transaction and wanted his earnest money to be returned. However, later on he changed his mind and refused to receive back the amount of the earnest money. The appellants controverted the allegations made by the plaintiff and pleaded that specific performance against them could not be ordered, they having purchased the property in dispute bona fide for value without any notice of the agreement in favour of respondent No. 1. They further pleaded that the contract was a contingent one depending on the partition of the property and as the partition never took place, the contract could not be enforced specifically.

(3.) On the pleadings of the parties, the following issues were framed :