BASRUDDIN KHAN Vs. GURUDARSHAN DAS

JUDGEMENT

(1.) Both the appellants were defendants second party in Title Suit No. 23/2 of 1960/62, which had been brought against them as well as defendants first party by the plaintiff Gurudarshan Das, for specific performance of a contract for sale, and the learned Additional Surbordinate Judge of Sasaram has decreed the suit with costs.

(2.) Briefly stated, the case of the plaintiff was that the defendants first party constituted a joint Hindu family. Father of defendants 1 and 2, Sukhdeo Singh, lived at Bhabua, in the district of Shahabad, and practised there as a Mukhtar. He lived in the houses described in Schedule A to the plaint, namely, Holding Nos. 3 and 3-A of Ward No. 3, in the town of Bhabua, standing on an area of about one katha and seventeen dhurs of Sand. After his death, these houses were not required by the family of defendants first party, who are residents of the district of Deoria in Uttar Pradesh, and fell in disrepair. There were other legal necessities to meet, and so defendant No. 1, as Karta of the joint family, contracted with the plaintiff to sell the said houses for a consideration of Rs. 10,500.00, out of which the defendant No. 1 received Rs. 1,855.00 from the plaintiff as earnest money. Defendant No. 1 executed a Moahdanama (agreement for sale) dated the 15th October, 1958, in favour of the plaintiff. It was stipulated in this agreement of sale that, out of the balance of the consideration money, Rs. 2,500.00 would be left in deposit with the plaintiff for payment to the rehandars of the defendants first party, namely, Data Singh and Husnain Mian, and the remain-Ing Rs. 6,145.00 would be paid by the plaintiff to the defendants first party at the time of execution and registration of the sale deed, which was to be executed before the 15th April, 1959. It was also undertaken by defendant No. 1 that he would get the sale deed executed in favour of the plaintiff by all the co-sharers of the property. Plaintiff was always willing to get the sale deed executed, after paying the balance of the consideration money, but till the 15th April, 1959, either defendant No. 1 or defendant No. 2 did not appear at the Bhabua Sub-Registry office to get the sale deed executed and registered. A few days later on the 19th June 1959 both defendants 1 and 2 met the plaintiff at Bhabua and some altercation took place between them because each party was accusing the other for not keeping his part of the promise. On the intervention of some persons present there including defendants second party, it was settled that the sale deed would be executed in favour of the plaintiff on the 22nd June, 1959. Plain- tiff paid a further sum of Rs. 250.00 to defendants 1 and 2 for the purchase of requisite stamps and to meet other expenses. Defendants 1 and 2, on their part, paid Rs. 220-8-0 to Shri Krishna Singh, a deed writer, for the purchases of stamps. Defendants first party, however, did not turn up at Bhabua on the 22nd June, 1959, for executing the sale deed. Plaintiff, thereafter, came to know that defendants second party obtained a sale deed from defendants first party with respect to the said houses by promising to pay a higher consideration. This sale deed was executed not at Bhabua, but at Arrah on the 26th June, 1959. According to the plaintiff, the whole transaction was a fraudulent and collusive one, because the defendants second party did not pay anything in cash on the date of the execution of the sale deed. Defendants second party had knowledge of the plaintiff's Moahdanama from the very beginning and even when the time for execution of the sale deed was extended, they were present at the spot. In that view of the matter, defendants second party were not bona fide purchasers for value. They paid no consideration for the sale deed which they took with notice Of the plaintiff's Moahdanama. Plaintiff, therefore, brought the suit for specific performance of the contract for sale.

(3.) The suit was contested by defendants first and second parties. Their main allegation was that defendant No. 1 was not the Karta of the family, rather defendant No. 2 was functioning as the Karta, The family of the defendants did not constitute a ioint family, rather defendants 1, 2 and 3 formed one joint family and the other defendants of the defendants first party lived separately. They denied the negotiation for the sale of the said houses for a consideration of Rs. 10,500.00, or the receipt of Rs. 1,855.00 from the plaintiff by way of earnest money. According to the defendants first party, the consideration for the houses in question was fixed between the plaintiff and defendant No. 1 at Rs. 14,000.00, but the plaintiff got this sum reduced and fraudulently mentioned in the deed of agreement for sale. Defendant No. 1 did not himself read this deed of agreement and signed the same at the request of the plaintiff in good faith. Plaintiff was never ready with the money to purchase these houses. Defendant No. 1 did not give out that he would get the sale deed executed by all the co-sharers. Defendants 1 and 2 were present at the sub-Registry office at Bhabua on the 15th April and 16th April, 1959 ready to execute the sale deed in favour of the plaintiff, but the plaintiff did not turn up with the money, and the transaction fell through. On the 16th April, 1959, therefore, a notice was served on the plaintiff by defendant No. 2 intimating that the terms of the Moahdanama had expired. According to the defendants, the story about the extension of the date for execution of the sale deed, at the intervention of some persons, including defendants second party was a concocted one. Plaintiff never paid Rs, 250.00 or any money to defendants 1 and 2 for purchase of stamps. As defendants first party were in urgent need of money, they sold the houses in question to defendants second party for a consideration of Rs. 13,000.00. Out of this consideration, Rs. 2,500.00 was left in deposit with the defendants second party for payment of rehan money to Husnain Mian and Kastura Devi, wife of Data Singh. A further sum of Rs. 2,500.00 was paid by the defendants second party to defendants first party, and the balance of Rs. 8,000.00 was paid before the Sub-Registrar at the time of registration. Defendants second party further asserted that they had no knowledge of any prior contract for sale by defendants first party, in favour of the plaintiff.