RAMASHRAY SINGH Vs. BALMIKI PD SINGH

JUDGEMENT

(1.) A suit for specific performance of a contract for sale of an immovable property was decreed by the trial court. The appeal against such decree having been dismissed, the present Letters Patent Appeal has been filed.

(2.) THE widow of Shyam Bihari Singh, Mostt. Mahtab Kuer, succeeded him as his sole heir and legal representative and accordingly, became owner of the properties left by Shyam Bihari Singh. THE defendants in the suit were the heirs and legal representatives of the brother of Shyam Bihari Singh, late Banwari Singh. Mostt. Mahtab Kuer executed a deed of mortgage in October, 1973 and thereby mortgaged a part of her properties. On 3.11.1973 the subject agreement, specific performance whereof had been sought for, was executed by the Mostt. Mahtab Kuer agreeing to sell two bighas 9 kathas and 11 dhurs of land for a consideration of Rs. 20,000/- in respect whereof a sum of Rs. 15,000/- was paid to her and was accepted by her. THE balance amount, of Rs. 5,000/- was to be paid to her at, the time of execution of the sale deed in the first week of January, 2004. Neither the deed of mortgage, nor the agreement contained signature of Mostt. Mahtab Kuer. THEy, however, contained her left hand thumb impression. THE defendants, at the trial of the suit, accepted the deed of mortgage and accordingly, accepted the left hand thumb impression appearing thereon to be that of Mostt. Mahtab Kuer.

(3.) THE learned counsel for the appellants then drew our attention to paragraph 15 of the plaint and contended that although the plaintiff had pleaded that he has all along been ready to perform his part of the contract and to pay the balance consideration amount, but there is no pleading that the plaintiff is still ready and willing to perform his part of the contract and accordingly, provisions of Clause C of Section 16 of the Specific Relief Act has not been complied with. In this connection learned counsel for the appellants also referred to forms 47 and 48 of the First Scheduled to the Code of Civil Procedure as well as judgment of the Hon'ble Supreme Court, reported in the case of Ouseph Varghese v. Joseph Aley and Ors. and in particular para 9 thereof.