HUSNA ARA BEGUM Vs. KISHORI DEVI

JUDGEMENT

(1.) 1. This Letters Patent Appeal is directed against the judgment and order of a learned Judge of this Court dated 29th January, 1991 in Appeal from Original Decree No. 532 of 1978 whereby the learned Judge dismissed the appeal preferred by the appellants herein. Respondent No. 1 is the plaintiff who filed a suit for specific performance of an agreement, Ext -3 dated 8.11.1968 executed by defendant No. 1 in the presence of defendant No. 2. The legal representatives of defendant No. 2 are the appellants in this appeal while respondents 2 to 5 are the legal representatives of defendant No. 1.

(2.) The case of the plaintiff was that defendant No. 1 was in need of money and therefore, In the presence of defendant No. 2, he agreed to sell the property described in Schedule I of the plaint comprising 16 hours of land containing a shop facing west and a Khandi adjacent to the shop situated within the town of Siwan for a sum of Rs. 15,000/ - out of which a sum of Rs. 6000/ - was paid in advance and agreement to sell Ext -3 was executed on 8.11.1968. The balance was agreed to be paid by the 2nd of January. 1971 when the defendant No. 1 was to execute the sale -deed on receipt of total consideration money. Pursuant to the agreement, Ext -3, the plaintiff was put in possession of the shop along with the Khandi. After arranging for the balance amount to be paid to defendant No. 1, the plaintiff expressed his readiness and willingness to pay the balance consideration money but defendant No. 1 on one pretext or the other evaded and ultimately refused to execute the sale -deed According to the plaintiff, defendant No. 1 was in exclusive possession of the suit property after partition between him and other co -sharers including defendant No. 1 and he was, therefore, entitled to transfer the said land. However, with a view to avoid the agreement, the defendants in collusion with others filed a suit purporting to be a partition suit in the Court of Sub -Judge, Siwan and in that suit a fraudulent compromise decree was obtained under which defendant No. 1 his vendor, was allotted a share in other properties described in Schedule II of the plaint while defendant No. 2 was allotted the suit property, which was earlier sold to the plaintiff by defendant No. 1 According to the plaintiff, the suit was filed fraudulently and even the compromise decree was obtained fraudulently with a view to defeat the agreement executed by defendant No. 1 in favour of the plaintiff.

(3.) Defendant No. 1, the vendor of the plaintiff, did not contest the suit but his brother defendant No. 2 contested the suit. His case was that there was no previous partition between him and his brother with regard to suit property and other properties which were jointly held by them and their other co -sharers. The. execution of the agreement was also disputed and similarly payment of any consideration amount was disputed. The deed of agreement was described as a forged and fabricated document. It was urged that a compromise petition was filed in the partition suit and that the compromise was neither collusive nor fraudulent nor was it intended to defeat the claim of the plaintiff to the house and Khandi in question. Since in the partition, the house in question was allotted to defendant No. 2 his right could not therefore, be defeated by the plaintiff. The trial Court as well as the learned Judge have concurrently found that the Suit as framed was maintainable and that the plaintiff had cause of action for the suit which was not barred by limitation. The agreement to sell Ext -3 was a genuine and valid document and was supported by consideration, Both the Courts have concurrently held that the case set up by defendant No. 2 that there was no earlier partition, could not be believed. The compromise suit and the compromise decree therein were fraudulent and collusive. On these findings, it was held that the plaintiff was entitled to the specific performance of the agreement, Ext -3.