NAWAL KISHORE Vs. KAULESHWARI DEVI

JUDGEMENT

(1.) This second appeal arises out of a suit for specific performance of contract. The defendant purchaser has preferred this second appeal against the judgments of affirmance.

(2.) At the time of the admission of the appeal, the substantial question of law framed is as hereunder :

(3.) The disputed property relates to municipal holding No. 35 of Ward No. 1, Mohalla Maharani Road Pahai, Gaya. It is said that the said property belonged to one Santoo Thakur, husband of defendant Pachia Devi. The property was gifted away to defendant Pachia Devi under a registered deed of gift dt. 26-7-66. It is said that the defendant contracted with the plaintiffs to sell the property in suit for a sum of Rs.9.500/- under a contract of sale dt. 10-9-69 on receiving a sum of Rs. 5,000/- as earnest money. According to the terms of the said contract, Pachia Devi was required to execute the sale deed by 31-12-69 on receipt of the balance sum of Rs.4,500/-. On 23-12-69 the plaintiffs purchased stamps for execution of the sale deed and it is said that the plaintiffs approached the defendant several times to perform the contract but the defendant went on putting off the matter on some pretext or other. In para 7 of the plaint it has been stated that ultimately the plaintiffs sent a notice under registered post dated 26-12-69 to the defendant through their lawyer calling upon her to perform the contract and the sale deed by 30-12-69 as promised and receive the consideration money of Rs. 4,500/-. The said notice is said to have been received by defendant Pachia Devi on 29-12-69. It is further stated in para 8 of the plaint that the plaintiffs again sent their agent to the defendant but she did not turn up although the due date for performance of the contract had expired and, therefore, the plaintiffs were constrained to institute the suit. In para 9 of the plaint it has been stated that the defendant was avoiding to perform the contract voluntarily as promised and therefore the plaintiffs are entitled to enforce the contract and get the same specifically performed through the Court on payment of the balance sum of Rs. 4,500/-. It has been averred that the plaintiffs have come to learn that the defendant is negotiating for sale of the holding in dispute with other persons and, therefore, the defendant be restrained from alienating the holding in dispute. The plaintiffs prayed for a decree for specific performance of the contract against the defendant by issuance of a direction to execute the sale deed and deliver possession on acceptance of the amount due and to any other relief to which the plaintiffs be entitled to.