SANGITA SINHA Vs. BHAWANA BHARDWAJ

JUDGEMENT

(1.) The instant appeal has been preferred against the judgment dtd. 27/4/2018 and decree dtd. 10/5/2018 passed in Title Suit no. 176 of 2008 whereby the suit filed by the plaintiff-respondent no.1 was decreed on contest with a direction to the defendants to execute the sale deed in favour of the plaintiff with respect to the suit property described in Schedule-A of the plaint.

(2.) The case of the plaintiff in brief is that Kusum Kumari (original defendant no.1) was the owner of plot no. A/164 in P.C. Colony, Kankarbagh, Patna measuring an area of 2800 sq.ft. with a house constructed thereon. The same has been fully described in Schedule-A (herein after referred to as 'the suit property') of the plaint of Title Suit no.176 of 2008. Having come to know the desire of the original defendant no.1 to sell, the plaintiff approached her with the offer to purchase the suit property. In the discussion, her grandson ie the defendant no.1 and his wife, the defendant no.3 also participated and it was agreed that the original defendant no.1 would sell the suit property to the plaintiff for a consideration of Rs.25.00 lacs. An agreement dtd. 25/1/2008 was entered into, which was duly signed by Bhawna Bhardwaj (plaintiff) and Kusum Kumari (original defendant no.1) as also the witnesses Deepak Kumar Sinha (defendant no.1) and his wife Sangita Sinha (defendant no.3). As per the agreement, the plaintiff paid Rs.2,51,000.00 in cash to the original defendant no.1 and also issued cheques worth Rs.7,50,000.00. The defendant acknowledged receipt of Rs.10.00 lacs against the sale of property and she agreed to obtain a no objection certificate (NOC) from the Peoples Co-operative Grih Nirman Samiti for transferring the membership of the Society in the name of the plaintiff. She also agreed to transfer the suit property to the plaintiff by executing a registered sale deed in her favour. She agreed to get the suit property vacated from possession of the tenants prior to registration.

(3.) It is further case of the plaintiff that in terms of agreement dtd. 25/1/2008, the original defendant no.1 made an application before the Secretary, Peoples Co-operative Grih Nirman Samiti requesting to issue a form so that the membership of the original defendant no.1 (member no.710, plot no. A/164) may be transferred in the name of the plaintiff. The application contains the written consent of her granddaughter-in-law Sangita Sinha (defendant no.3), in whose favour the original defendant no.1 had executed a registered will in respect of the property. It is further case of the plaintiff that on her visiting the house of the original defendant no.1 on 11/2/2008 at about 4 p.m. with her husband to discuss the matter, the tenants of the original defendant no.1 namely Ajay and wife of Amar interfered, started to scuffle and abuse the plaintiff and her husband and forced them to return. The plaintiff states that she was surprised and shocked to see that the original defendant no.1 supported them and thus the plaintiff having understood that the original defendant no.1 was intending to avoid carrying out the terms of the agreement dtd. 25/1/2008 sent a legal notice dtd. 23/2/2008 through her lawyer. The plaintiff expressed her desire to pay the balance amount of consideration as per the terms and conditions of the agreement and to get the property registered in her favour. The notice was replied to by the original defendant no.1 wherein though she mentions about her age and ill health, however, she does not deny the agreement dtd. 25/1/2008. The plaintiff got yet another notice sent through registered post with A/D on 23/4/2008 reminding her of the agreement dtd. 25/1/2008 and asking that a sale deed be executed in her favour. It is stated that the original defendant no.1 has all right to transfer the ownership of the property with prior permission of the Peoples Co-operative Housing Construction Society Limited (herein after referred to as 'the Society') and as per the terms and conditions of the sub-lease agreement only a person enrolled as a member of the Society can own the property. The original defendant no.1 being aware of these facts requested the Society by her letter dtd. 27/1/2008 to provide suitable form for the purpose of transfer of the property to the plaintiff. It is further stated that the original defendant no.1 entered into the sale agreement dtd. 25/1/2008 and accepted the advance amount against the consideration agreed upon with the consent of her step-grandson (defendant no.1) and his wife (defendant no.3). A registered will is said to have been executed by the original defendant no.1 in favour of defendant nos.1 and 3. It is the case of the plaintiff that she is very much eager and willing to pay the rest amount of consideration as per the terms and conditions of the agreement. She has already performed her part in the agreement and is further ready to perform the agreement as per the terms and conditions. The cause of action of filing of the suit arose for the first time on 25/1/2008 when the agreement to sale was executed and on various dates including 1/5/2008 when the 7 days notice given by the plaintiff in the reminder notice dtd. 23/4/2008 expired and the original defendant no.1 failed to perform her part of the agreement. The plaintiff thus filed Title Suit no.176 of 2008 on 5/5/2008 in the Court of learned Sub-Judge I, Patna for the following reliefs :-