MAHABIR MAHTO Vs. SANJHA

JUDGEMENT

(1.) This second appeal by the plaintiff has been fifed against concurrent judgments and decrees of the courts below dismissing his suit for specific performance of contract dated 2nd of February, 1958, by Mosst. Sanjha (defendant No. 1) for sale of 7 bighas of land. In order to appreciate the points raised in the appeal on behalf of the appellant and the respondents, facts of the case may briefly be stated. The case of the appellant was that Anand Lal Mahlo, husband of defendant No. 1, died in the year 1945, in the state of jointness with his father Babuji Mahto. Defendant No. 1 for sometime lived jointly with her father-in-law, but subsequently filed a partition suit against him which was numbered as Partition Suit No. 28 of 1954 of the Court of Munsif Madhubani, which was decreed. Defendant No. 1 was in need of money for payment to her creditors, for meeting the expenses of litigation in the partition suit and for marrying her two daughters. She, therefore, approached the appellant for money. There was an agreement between them on the aforesaid date, 2nd of February, 1958, whereby defendant No. 1 agreed to sell 7 bighas of land to the appellant for a consideration of Rs. 3,500/-, out of the lands she was likely to get in the partition suit by compromise. A Mohada-nama was executed stating that the appellant would get kebala for 7 bighas of land as mentioned therein executed from defendant No. 1, but in case she did not get the very 7 bighas of land, then the appellant would be at liberty to select any 7 bighas of land out of the lands she would be getting by the compromise. According to the Mohadanama, the sale deed was to be executed within one year of the final disposal of the partition suit. The entire consideration of Rs. 3,500/- was paid by the appellant to defendant No. 1 on the very date the Mohadanama was executed. On 19th of July, 1958, compromise was effected in the partition suit and defendant No. 1 did get the land allotted to her in respect of which she had executed the Mohadanama. Subsequently, defendant No. 2, Jairam Chamar, a faithful servant of defendant No. 1, who had full knowledge of the Mohadanama got a sale deed executed by defendant No. 1 in his favour with respect to some of the lands in suit. Defendants Nos. 3 and 4 also, at the instance of defendant No. 2, purchased from defendant No. 1 some of the suit lands with full knowledge of the Mohadanama.

(2.) Three written statements were filed in the suit, one by defendant No. 1, another by defendant No. 4 and third, a joint one, by defendants Nos. 2 and 3. Defendant No. 1 in her written statement denied the execution of Mohadanama or payment of consideration to her. According to her, she had gone to execute a Bharna bond in favour of Nabi Mahto and the appellant and his uncle, Ganga Ram, on that occasion managed to obtain her thumb impressions on blank papers and perhaps one of those blank papers was frauduently converted into the Mohadanama. She was not in need of any money and there was no necessity for executing the Mohadanama. However, she did not contest the suit, nor she was examined as a witness in it. Defendants Nos. 2 to 4 in their written statement supported the case of defendant No. 1 that she never executed any Mohadanama in favour of the appellant, nor she received any consideration. Their further case was that they were bona fide purchasers for value without any notice of the Mohadanama. According to defendants Nos. 2 and 3, the appellant procured an ante-dated stamp and got the Mohadanarha fabricated after bringing the scribe and the attesting witnesses in collusion after the execution of the sale in favour of defendants Nos. 2 to 4. Defendant No. 4 merely stated that the Mohadanama was forged and fabricated one. Defendant No. 3, Domi Mahto, also, however, ultimately did not contest the suit.

(3.) The trial Court held that the Mohadanama executed by defendant No. 1 in favour of the appellant was a genuine and valid document and for consideration. In that connection it further held that defendant No. 1 was in pressing necessity for money and she did execute the Mohadanama and was paid Rs. 3,500/- by the appellant on the date of the execution of the Mohadanama itself, It has also held that deeds of sale and Bharna executed by defendant No. 1 in favour of other defendants after the execution of the Mohadanama were farzi transactions for which no consideration passed and defendant No. 1 continued to be in possession of the lands purported to have been conveyed by her to other defendants and that defendants Nos. 2 to 4 were not bona fide purchasers for value and had notice of the Mohadanama in question. It, however, dismissed the suit of the plaintiff-appellant on the ground that he had made undue delay in bringing the suit and that total inaction on his part for about six months amounted to an abandonment of the contract and waiver of his right to sue for specific performance. The lower appellate Court has confirmed the findings of the trial Court that the Mohadanama was genuine, valid and for consideration and that the defendants who purchased from defendant No. 1 had knowledge of the Mohadanama. It has not recorded any specific finding on the question whether the purchases in favour of these defendants were for value for, according to it, that point was not of much importance. It too has, however, held that delay in filing the suit by the appellant tantamount? to waiver and abandonment of right and affirmed the decree of the trial Court dismissing the suit