BALWANT Vs. LABH CHAND

JUDGEMENT

(1.) This is defendant's second appeal against whom the suit for specific performance of the agreement to sell, has been decreed by both the Courts below.

(2.) Labh Chand, defendant No. 1, was the owner of 18 acres, 1 kanal and 1 marla of the agricultural land. He leased out the same in favour of Punnu Ram and Lakhmi Dass for a period of ten years with effect from April 24, 1965. Punnu Ram died leaving behind three sons, Mool Chand, Dwarka Dass and Maghe Ram. On September 27, 1969, Labh Chand, defendant entered into an agreement to sell 8 acres of land which is equivalent to 64 kanals with one Mani Ram vide agreement, Exhibit D.3. The sale was to be made for a sum of Rs. 16,000/- and the sale deed was to be executed on October 3, 1969. For the remaining land, i.e., for 81 kanals 1 marla of land, the said Labh Chand executed an agreement to sell, Exhibit, P.1, on September 27, 1969, i.e., the same day, in favour of Mool Chand and Dwarka Dass, plaintiffs. A sum of Rs. 500/- was paid as earnest money. The sale was to be executed within a period of six months thereof. Registered notice was sent to the said Labh Chand for executing the sale deed. When he failed to do so, the plaintiffs filed the present suit on April 3, 1970, for specific performance of the agreement to sell against Labh Chand on the allegations that they were ready and willing to perform their part of the agreement. When they came to know that Labh Chand, defendant, was going to transfer the property by way of sale in favour of Balwant and others sons of Khamana Ram, registered notice was sent by their counsel, Exhibit P.W. 4/8, dated April 8, 1970, which was received undelivered with the endorsement 'refused to accept'. On October 20, 1970, i.e., during the pendency of the suit, the said Labh Chand, actually sold the suit land in favour of Balwant and others vide sale deed, Exhibit D.2, for a sum of Rs. 25,000/-. As a result, they were also impleaded as defendants in the suit. Labh Singh, defendant, filed the written statement on November 25, 1971 and pleaded that he never agreed to sell the suit land for such a meagre sum of Rs. 6,000/-. It was further pleaded that in September, 1969, he also entered into a bargain through the plaintiffs and their brother Maghe Ram to sell his other 8 killas of land to Mani Ram at that rate of Rs. 2,000/- per killa and, therefore, it was unconceivable that at the very time he would agree to sell his land to the plaintiffs at a thrown away price. He also pleaded that the agreement was executed under undue influence and fraud etc. It may be stated here that after filing the written statement he absented himself from the proceedings and did not enter the witness-box to support his allegations, or the case of the subsequent vendees. The suit was mainly contested by the subsequent vendees, inter alia on the plea that they were bona fide purchasers for value without notice. The trial Court found that the agreement, Exhibit P.1, dated September 27, 1969, was duly executed by Labh Chand in favour of the plaintiffs and a sum of Rs. 500/- was paid as earnest money. It was further found that the plaintiffs were ready and willing to perform their part of the agreement, but Labh Chand, defendant, failed to execute the sale deed, as stipulated. On the question of the subsequent vendees being bona fide purchasers, the trial Court found that, -

(3.) The learned counsel for the defendants-appellants submitted that the notice, Exhibit P.W. 4/8, dated April 8, 1970, could not be relied upon as the endorsement of refusal thereon was not duly proved by producing the postman. According to the learned counsel, the defendants' father Khamana Ram appeared as D.W. 8. He denied that any notice such as Exhibit P.W. 4/8, was ever refused to be received by him. Thus, argued the learned counsel, in view of the judgment of this Court in Puran Chand V. Smt. Lajya Wati, 1972 74 PunLR 930, the same could not be relied upon against the appellants. It was further contended that the agreement, Exhibit P.1, was obtained by the plaintiffs by sharp practice because that very day another agreement, Exhibit D.3, was executed by Labh Chand, defendant, with one Mani Ram whereby he agreed to sell his 8 acres of land for Rs. 16,000/-, whereas the agreement, Exhibit P.1, was executed only for a sum of Rs. 6,000/-, for the land measuring 81 kanals 1 marla. According to the learned counsel, in these circumstances, the plaintiffs were not entitled to the relief of the specific performance. At the most, they were entitled to the refund of their money. Besides, the plaintiffs are already in possession of the suit land as lessees. Therefore, no loss would be caused to them if the relief of specific performance is not granted in their favour. Even Labh Chand, the vendor, has died during the pendency of this appeal in this Court. Therefore, the decree as such was not executable because no sale deed could be executed now on behalf of Labh Chand, defendant, since he had died issueless leaving no heir. According to the learned counsel even the sale consideration was too low and once the conscience of the Court is pricked, the plaintiffs were not entitled to the relief of specific performance. In support of the contentions, the learned counsel relied upon Manak Chand V. Puran, 1960 AIR(MP) 235 and Lakshminarayan V. Singaravelu, 1963 AIR(Mad) 24 The learned counsel also relied upon Enayat Ullah V. Khalil Ullah, 1938 AIR(All) 432 Mrs. Christina V. K. Ugappa, 1966 AIR(Mys) 299 and Hiralal V. Bhagirathi, 1975 AIR(Cal) 445, to contend that the title in the property will pass only when the sale deed is executed in favour of the plaintiffs, but since Labh Chand, defendant, has died, no sale deed could be executed and, therefore, no valid title will pass to them. The learned counsel also relied upon Ramesh Chand V. Chuni Lal, 1971 AIR(SC) 1238, to contend that the subsequent vendees could not be directed to join in execution of the sale deed.