SURAJ MAL Vs. DARYA SINGH

JUDGEMENT

(1.) THIS second appeal has been preferred against the decree and judgment of the learned Additional District Judge, Jind, in Civil Appeal No. 79 of 1993, dated 29. 10. 1996.

(2.) THE defendants are the appellants in this appeal. The plaintiff-respondents filed two civil suits, bearing No. 291 of 1980 and 149 of 1989 for specific performance of the contract of sale. Both the suits were clubbed and tried together. According to the plaintiff, the suit property, which is a subject matter of the contract of sale belonged to six brothers namely defendants 1 to 4 and Raghbir and Surjit and defendant 1 to 3 executed an agreement of Sale in favour of the plaintiffs to sell the suit land not only on their behalf but on behalf of other brothers also namely defendant No. 4 and Raghbir and Surjit representing that they have got an authority to sell the property on behalf of 4th defendant as well as Raghbir and Surjit, who are their real brothers. The said agreement was executed on 15. 7. 1987 according to which sale consideration has been fixed at Rs. 24,000.00 per acre and the defendants 1 to 3 receive a sum of Rs. 20,000.00 from the plaintiffs as advance money and the balance of the sale consideration was agreed to be paid at the time of the execution of the Sale Deed. It is also stated that defendants 1 to 3 executed the sale deed on behalf of their brothers namely Randhir (defendant No. 4), Raghbir and Surjit. The plaintiff have been always willing to perform their part of the contract. The plaintiffs approached the defendants on 15. 6. 1988 to get the Sale Deed executed, but the defendants failed to perform their part of the contract though the plaintiffs waited in the office of Sub Registrar, but the defendants did not turn up. Therefore, the plaintiffs filed the suit for specific performance. In the written statement filed by the defendants, it is averred that the agreement of sale dated 15. 7. 1987 was cancelled orally by the plaintiffs and defendants 1 to 3 on 14. 8. 1987 in the presence of S/shri Phool Chand and Ram Dia and the plaintiffs agreed for the earnest money to be forfeited by the Ist defendant and the suit is not maintainable.

(3.) IT is contended in the appeal that the defendant 1 to 3 executed an agreement of sale not only on behalf of themselves, but also on behalf of their brothers namely Raghbir and Surjit. Raghbir and Surjit were unmarried and died issueless and therefore, the remaining four brothers inherited their shares also in the disputed land and the defendant No. 4, Randhir, Raghbir and Surjit are bound by the agreement dated 15. 7. 1987, which was also executed on their behalf by the defendants 1 to 3. They also pleaded that after the death of Raghbir and Surjit, defendants 1 to 3 succeeded to their interest, and, therefore, they are bound to execute the sale deed as they inherited the property of their two deceased brothers. The learned Additional District Judge by the impugned judgment held that the 4th defendant and Raghbir and Surjit have not consented to sell their share and, therefore, the agreement of sale cannot be executed on their behalf. The learned Additional District Judge further held that after the death of Surjit and Raghbir defendants 1 to 3 succeeded to their interest and, therefore, the plaintiffs are entitled to enforce the agreement of sale even in respect of their property which was inherited by defendants 1 to 3 on the death of Surjit and Raghbir and accordingly decreed the suit to the extent of 15 Kanals 9 marlas of agricultural land which is the share of defendants 1 to 3 after the death of Surjit and Raghbir on payment of proportionate remaining sale consideration after deducting a sum of Rs. 20,000.00 which has already been paid as earnest money. Aggrieved by the same, the defendant 1 to 3 filed the present appeal.