NAND KISHORE SINGH Vs. BHUVANESHWAR SINGH

JUDGEMENT

(1.) This appeal by the plaintiff arises out of a suit for specific performance of a contract for sale dated the 17th June, 1959 in respect of 4 kathas 8 dhurs of land, with a house thereon lying in Mahalla Ujjain tola of Bettiah town for a consideration of Rs. 13,400/ -.

(2.) The case of the plaintiff is that Gaya Singh, father of defendant No. 1, was an employee of Bettiah Raj and he acquired the suit land by virtue of a settlement from the Bettiah Raj. He constructed one -storeyed house over 2 kathas and 5 dhurs of the suit land forming its western part, and he used the remaining eastern part as kitchen garden. On the death of Gaya Singh, the land, with the house standing on it, was inherited by defendant No. 1. The house and the land, however, were always in occupation of tenants on rent, but. there was no profit to defendant No. 1 from the rents realised. Hence, he wanted to sell the suit property and invest the purchase money in acquisition of some culturable lands for the family and for payment of debts incurred by him. Accordingly he entered into negotiations with the plaintiff who, after making enquiries as to the existence of legal necessity for disposal of the property, agreed to purchase the same for Rs. 13,400/ -. On the 17th June, 1959, therefore, defendant No. I executed a Moahdunama and accepted Rs. 3,500/ - as earnest money. It was further agreed that Rs. 2,000/ -was to be kept in deposit with the plaintiff for payment to the zarpeshgidar to whom the house had been mortgaged and the balance of Rs. 7,900/ - was to be paid at the time of the registration of the document. It was also agreed that the sale deed would be executed on the 17th December, 1959. Defendant No. 1, however, failed to execute the sale deed, as agreed upon, and hence, the plaintiff had to institute the suit, out. of which this appeal arises, after service of notice on defendant No. 1 on the 21st December, 1959.

(3.) Originally, the suit was filed against defendant No. 1 alone but, on objection being raised by him in his written statement, his minor sons were added as defendants 2 to 6. Defendant No. 1 filed a separate written statement, and a formal written statement was also filed on behalf of the minor defendants through their guardian ad litem. Later on, however, they appeared through their mother guardian and filed a written statement contesting the suit. According to the written statements of all the defendants, their pleas appear to be that defendant No. 1 was not the Karta of the family consisting of himself and his five sons; that there was no legal necessity for the sale of the house and that the rent realised from the tenants of the house benefited the defendants' family. It was also pleaded that there was no necessity to purchase any land nor was any negotiation ever made for purchase of the same. According to defendant No. 1, there was a dispute between him and the District Board to the knowledge of the plaintiff with respect to 1 katha 10 dhurs out of the disputed land and the value of the suit property was Rs. 25,000/ -and actually the plaintiff had agreed to pay Rs. 25,000/ - as the price of the suit property; but, in order to save the cost of stamp and registration, a lower amount of price, namely, Rs. 13,400/ - was mentioned in the deed of agreement at the request of the plaintiff. The plaintiff had agreed to pay the balance of the consideration money after the dispute with the District Board had been settled, and he also undertook to get the matter settled through his brother, Jwala Prasad, who happened to be the then Vice -Chairman of the District Board. It was also his case that he put his thumb impression and signature on a blank stamped paper which was handed over to the plaintiff. At that time, the plaintiff paid Rs. 3,500/ -. Subsequently, however, the plaintiff went back upon the term of paying Rs. 25,000/ - as the price of the suit property and got the contents of the deed of agreement engrossed on the blank stamped paper that had been handed over to him and the plaintiff also failed to get the dispute settled with the District Board. On behalf of the minor defendants a further plea was taken that the contract was not binding upon them.