BAHADUR Vs. MOTIRAM

JUDGEMENT

(1.) THIS is a plaintiffs second appeal arising out of a suit for specific performance of an agreement to resell the property in dispute to the plaintiff for a consideration of rs. 1100/ -.

(2.) THE plaintiff's case as set out in the plaint is that he had purchased the house in dispute on 17-3-1960 from one Kanaram for Rs. 4800/ -. The sale deed in his favour has, however, not been placed on the record. It is alleged that he was badly in need of money on account of the marriages of his two daughters and so he agreed to mortgage the house in question for Rs. 1000/- with the defendant no, 1 Motiram, who however, played a fraud upon him, and actually got a sale deed executed by him for Rs. 1000/- on 5-10-61. The original sale deed has been placed on the record and is marked Ex. 2. It is admitted case of the parties that on the same day Motiram executed an agreement in favour of the plaintiff to resell the property in dispute to the latter for a sum of Rs. 1100/- on or before 31-31962. The original agreement has been put on the record and marked Ex. 1. It appears from this agreement that Rs. 100/- were paid by the plaintiff to Motiram as part of the purchase price and the balance Rs. 1000/-was to be received at the time of registration of the sale deed. It was further agreed between the parties that the expenses for execution of the sale deed, and its registration would be borne by the plaintiff and in case the plaintiff failed to perform his part of the contract Rs. 100/- paid by him as earnest money would be forfeited and so also if the defendant Motiram Committed breach of the contract and did not execute the sale deed, he would pay Rs. 100/- to the plaintiff as penalty. The plaintiff's case is that on 31-3-1962 and thereafter he offered the balance of the purchase price Rs. 1000/- to the defendant, who put him off on some pretext or the other and ultimately on 21-4-1963 he refused to execute the sale deed. It was further stated that the defendant No. 1 Motiram transferred the house in question to the-defendant No. 2 Prem Narain minor through his guardian, his father Lalchand in exchange for another house. A copy of the exchange deed duly registered has also been produced and marked Ex. A-l. This necessitated the impleading of Prem narain as defendant No. 2 in the case. One Khemchand was also impleaded as party to the suit on the ground that the Louse in question had been previously mortgaged with him by Motiram though it was subsequently redeemed. Khemchand is, therefore, now not at all interested in the result of the suit. However, it was alleged that the defendant No. 2 acquired the house in question in exchange in collusion with the defendant No. 1 Motiram with the full knowledge that the plaintiff was in possession of the same and that there had been an agreement between the plaintiff and the defendant Motiram for resale of the house in the plaintiff's favour vide Ex. 1- The plaintiff also averred that he was always ready and willing to perform his part of the contract, but the defendant had wrongfully refused to execute the sale deed in his favour. On these allegations, he prayed for a decree for specific performance of the agreement Ex. 1.

(3.) THE suit was resisted by the defendant Motiram as well as Prem Narain, who filed separate written statements though the pleas taken by them are identical. It was pleaded that the transaction between the plaintiff and the defendant No. 1 motiram (who will hereinafter be referred to as 'the defendant') was one of sale out and out and not a mortgage by conditional sale and that the plaintiff had executed the sale deed Ex. 2 with full knowledge of its contents. The claim for specific performance was refuted on the ground that the plaintiff had not performed his part of the contract and had never offered the defendant the balance of the sale price, namely Rs. 1000/- nor had ever called upon the defendant to execute the sale deed and get it registered. The defendant Prem Narain took a further objection that he was a bona fide purchaser for value without notice of the prior agreement to sell in favour of the plaintiff (Ex. 1) and hence no relief could be granted against him.