DIPNARAIN SINHA Vs. DINANATH SINGH

JUDGEMENT

(1.) This appeal is by the plaintiffs who had instituted a suit for specific performance of a contract for sale of certain lands against defendants first and second parties. The properties in question are described in Schedules 3 and 4 to the plaint. They also claimed a decree for Rs. 1000 as damages on account of the non-fulfilment of the contract by the defendants. The agreement for sale of the lands in question was executed between the defendants first and second parries who are the principal defendants and the defendants third and fourth parties who have been impleaded as pro forma defendants, on 7-9-196$. The agreement was for sale of 4.71 acres of raiyati land situate in village Manpura appertaining to khata No. 493 which is on the fringe of the town of Patna and is fully described in Schedule 2 of the plaint. The said land belongs to the four sets of defendants, each having l/4th share in the same. The total consideration for the transaction was Rupees 91,932/- out of which a sum of Rupees 4,000/- was paid by the plaintiffs on the date of the execution of the deed of agreement on 7-9-1963, itself. The sale deed was to be executed by 30-12-1963.

(2.) According to the allegations made in the plaint which are not disputed, all the four sets of defendants are descendants of one Lakhraj Mahton and they formed four separate branches. According to the plaintiffs' case defendant No. 1 is the Karta of the first branch, defendant No. 4 of the second branch and defendant No. 6 of the third branch. Defendant fourth party is only one Mossommat Dukhni (defendant No. 12J who was the one member of her branch. The further case of the plaintiffs is that none of the defendants took any initiation till 29-12-1963 and thereupon they sent a telegram to them on 30-12-1963 followed by a registered letter, calling upon them to execute the; sale deed within the stipulated time, i. e., 31-12-1963, but none of the defendants paid any heed mid when they learnt that the plaintiffs were contemplating to file a suit they (defendants) requested them by a letter dated 5-5-1964 to purchase necessary stamps. The plaintiffs accordingly purchased necessary stamps and drew up the draft of the sale deed and after the draft was examined by defendant No. 6 and shown to file other defendants concerned, the sale deed was drawn up on the stamp paper. The plaintiffs' further case is that the defendants were themselves responsible for the delay as certain mutation proceedings were pending, whereas they (plaintiffs) were always ready to perform their part of the contract. However, on 18-8-1964 save and except defendants third party, the other defendants did not turn up to execute the sale deed. The plaintiffs paid them their shares of the consideration and the sale deed was presented for registration before the District Sub-Registrar, Patna. Subsequently defendant No. 12 also executed the sale deed on 7-9-1864 and received her share of the consideration. The other defendants, however, did not turn up to execute the sale deed and accordingly the plaintiffs had to file the suit.

(3.) The suit was contested by all the major defendants, namely, defendant Nos. 1 and 2 of the first set and defendant Nos. 4 and 5 who were the defendants second party. Defendant No. 3, the minor son of defendant No. 2,did not appear and was represented by a guardian ad litem. One Gopal Krishna, claiming himself to be a minor son of defendant No. 5, was added as an intervenor defendant (defendant No. 13). The plaintiffs' case with respect to this intervenor defendant was that he was not the son of defendant No. 5 and, if at all, he was not born on the date of the contract. The minor defendants pleaded that the agreement for sale in question was executed without any legal necessity and accordingly was not enforceable against them.