DULHIN RAJKISHORE KUER Vs. MUHAMMAD QAIYUM

JUDGEMENT

(1.) This is an appeal by the plaintiff in a suit for specific performance of a contract for sale. The terms of the contract are embodied in a registered deed, dated 11th June 1934, executed by the defendants first party (defendants 1 and 2) in favour of the plaintiff. The property agreed to be sold is 2 annas 8 pies and odd share of the proprietary interest in Mauza Rupauli Buzurg and the consideration was settled at Rs. 3150. The defendants second party (defendants 3 to 10) were mortgagees of the property in question: At the time of the contract, the plaintiff paid Rs. 200 as earnest-money and it was agreed that, out of the balance, Rupees 1501-6-6 would be retained by the plaintiff for payment to the mortgagees (defendants second party) and the remaining amount would be paid in cash on execution and registration of the sale deed. The sale was to be completed by 30 September 1934. Stamps were purchased for the sale deed on 16 June 1934, and the plaintiff's case is that she repeatedly requested the defendants first party to execute and register the sale deed; bat, instead of doing that, they executed a sale deed in favour of the defendants second party which was registered on 9th August 1934. This sale deed purports to have been executed on 16 April 1934, but the plaintiff alleges that it was in fact executed on 2 August, 1934, and the deed was fraudulently ante-dated. The defendant first party having ultimately refused to execute the sale deed in favour of the plaintiff, she brought the present suit. Besides claiming specific performance, she prayed in the alternative for refund of the sum of Rs. 200, which she had paid as earnest-money, together with interest and further compensation from the defendants first party.

(2.) The suit was contested by both sets of defendants on various grounds. One of them was that the defendants second party were themselves cosharers of the village Rupauli Buzurg to the extent of more than 8 annas, and, as such, they had a right of pre- emption. Consequently the plaintiff was not entitled to specific performance. The defendant first party also asserted that the plaintiff was not entitled to any compensation.

(3.) At the trial it was conceded that the defendants second party had a right of pre-emption. The plaintiff also asserted a similar right. It was further asserted on her behalf that the defendants second party had waived their right of pre-emption.