RAM PRASAD SAO Vs. SHEO PRASAD SAO

JUDGEMENT

(1.) V .N.SINHA, J.

(2.) DEFENDANTS in a suit for specific performance of contract are the appellants. They are assailing the judgment and decree dated 18.3.1980 passed by the Additional Subordinate Judge -ll, Aurangabad in Title Suit No.10 of 1980/59 of 1978 whereunder the suit has been decreed directing the defendant no.1 to execute sale deed in respect of the suit lands within three months of the receipt of the balance consideration amount, failing which the court below shall execute the sale deed. Plaintiff 'sCase: Defendant No.1 executed agreement for sale dated 9.9.1975 whereunder he agreed to sell the suit house situate over half decimal of land for Rs. 12,000/ - after obtaining permission for such sale from the Consolidation authorities and in lieu thereof received a sum of Rs. 2,500/ - as earnest money. The sale deed was to be executed on or before 28.2.1976 after payment/receipt of the balance amount of consideration money of Rs. 9,500/ -. Details of the lands over which suit house is situate has been fully described in the agreement. Further case of the plaintiff is that he approached defendant no.1 for paying the balance consideration money of Rs. 9,500/ - on 26.2.1976, 27.2.1976 and 28.2.1976 with request to execute the sale deed. Defendant No.1, however declined the request to receive the balance consideration money and execute the sale deed. Plaintiff thereafter served legal notice dated 22.2.1978, Exhibit -2 through registered post 18/4/2014 Page 103 S.N.Pathak Versus State Of Bihar calling upon defendant nos.1. and 2 to accept the balance consideration amount and to execute the sale deed, failing which he shall initiate legal action against them and filed the instant suit on 10.6.1978 praying inter alia to pass decree for specific performance of contract directing defendant no.1 to accept the balance amount of consideration money and to execute the sale deed in terms of the agreement for sale dated 9.9.1975. Defendants ' Case:

(3.) DEFENDANT Nos. 1 and 2 are son and mother respectively. They have filed separate written statement. The case of defendant no.1 is that the suit is under valued as also barred under the provisions of Specific Relief Act. According to him correct valuation of the suit house is more than 40,000/ - His further case is that he executed the agreement for sale dated 9.9.1975 undertaking to sell his half share in the suit property to the extent of 1/4 decimal of land for Rs. 20,000/ - and not half decimal of land for Rs. 12,000/ - and stipulations to the contrary made in the agreement is on account of fraud played on him by the plaintiff and his men. Her further pleaded that the assertion that he received the earnest money of Rs. 2,500/ - on 9.9.1975, the date of execution of the agreement and that plaintiff approached him to pay the balance amount of consideration money on 27.2.1976 and 28.2.1976 and that he received legal notice dated 22.2.1978 is also incorrect and false. Defendant No.2 asserts that she is not a signatory to the agreement dated 9.9.1975, contents thereof are not binding on her. She being separate from her son, defendant no.1 is in exclusive possession over her share in the suit property to the extent of 1/4 decimal of area in the suit house. She further claimed that defendant no.1 is not the Karta of the Hindu undivided family. Defendant No.1 has executed the agreement for sale for lands more than his share. In this connection she pointed out that the suit house belonged to Bakhora Sao, who had two sons, Chamari Sao and Deocharan Sao. Chamari Sao died unmarried. His interest in the suit house devloved on his brother Deocharan Sao. Deocharan Sao died leaving behind his wife, Laxminia Devi, defendant no.2 and son, defendant no.1, who inherited the suit house in equal measure. She further reiterated that fraud was played on defendant no.1 at the time of execution of the agreement for sale and lands beyond his share was included in the agreement for sale as his share in the lands in question was only to the extent of 1/4 decimal but in the agreement 1/2 decimal of land was included reducing the consideration amount from Rs. 20,000/ - to Rs. 12,000/ -.