MOHAMMADKHAN NAJJUMIYA Vs. BAPUMIYA MAHABUBMIYA MUSALMAN

JUDGEMENT

(1.) ON 29th March 1939 the two defendants, who are brothers, executed an agreement (Ex. P-1) to sell a certain vacant site within the municipal limits of Nagpur to the plaintiff for Rs. 430. The document contains recitals that Rs. 35 had been paid and the balance of Rs. 395 would be paid at the time of registration, that the sale deed should be registered within a month, that at the time of registration the defendants would "obtain the signatures of the rest of the heirs," and that in the event of their failure to obtain the signatures of the heirs "they would be liable for damages and for getting the registration done." No deed of sale was executed in pursuance of this agreement, and the suit giving rise to this appeal was brought by the plaintiff to enforce specific performance.

(2.) THOUGH the point was not put in issue, there seems no doubt that the property in suit was a part of a larger property belonging to the defendants and their brothers and sisters. The defendant Nawab Khan (P.W. 1) has stated that the land in suit belonged to their uncle Usmankhan and passed at his death to their father Najumian and subsequently passed to Najumian's children and that there had never been any partition between him and his brothers and sisters. Ahmad Khan (P.W. 4), a brother of the defendants, stated that the land in suit belonged to him and his brothers and sisters, having come to them from their father, and that there had been no partition. In the agreement (Ex. P-1) the defendants described the site as "land of our ownership" which no doubt implies that they were the owners of the property but it does not necessarily imply that they were the sole owners; the subsequent reference to "the rest of the heirs" suggests that they were not the sole owners. The plaintiff (P.W. 1) clearly knew nothing about the title to the land for he admitted that he did not know how the land came to the defendants, whether from their father or by purchase, or whether there had been any partition, and he admitted that he had not inspected the municipal records. He further admitted that Nawab Khan had told, him that the land in suit belonged at one time to his uncle Usman Khan. There seems, therefore' no doubt, as I have said, that the site in dispute belongs to the defendants and their brothers and sisters. There is no evidence the other way.