PREM SUKH GULGULIA Vs. HABIB ULLAH

JUDGEMENT

(1.) Nim Chand, who is defendant 1, in the suit in which the appeals arise, instituted a suit (Money Suit No. 78 of 1932) against three persons, Sorab, Habib Ulla and Nasib, to recover money said to be due on a promissory note. During the pendency of the suit, he attached before judgments lots Nos. 1 to 41 described in the plaint of the suit we have before us. That suit was ultimately decreed for RS. 3500 against Nasib only and was dismissed against Sorab and Habib Ulla. Nim Chand started execution proceedings (NO. 341 of 1935) against Nasib. He attached more properties--lots Nos. 42 to 63--as belonging to Nasib. He alleged that the properties which he had attached before judgment as well as these properties belonged exclusively to Nasib. Sorab and Habib Ulla filed claims in the execution proceedings, stating that some of the properties attached belonged to them exclusively and in the rest they had shares. Those claims being dismissed they filed a title suit against Nim Chand and Nasib being No. 260 of 1935 under Order 21 Rule 63, Civil P. C. The execution proceedings were not, however, stayed. That suit was compromised on 30 October 1935 and on the same day a written agreement between Nim Chand and Sorab and Habib Ulla, which has been marked as Ex. 1, was executed. This agreement was executed by Loonkoran Bhutra alias Lonji Babu on behalf of Nim Chand. Loon-koran is an officer of Nim Chand holding a general power of attorney from the latter. Sorab and Habib Ulla admitted that Nasib was the exclusive owner of all the properties attached (namely lots 1 to 63). The agreement embodied in Ex. 1 was that if Nim Chand was successful in purchasing those properties at the execution sale, which was to take place the next day, he would convey a third share to Sorab and Habib Ulla for a consideration of Rs. 300 (which was paid on the date of the agreement), that if he failed to purchase the same but a third party purchased, he would refund the said sum of Rs. 300 and if he purchased some and a stranger purchased the rest he would make a proportionate refund. This last mentioned clause necessarily implied that he would convey to Sorab and Habib Ulla one-third share of the properties which he would purchase at that execution sale in case he failed to purchase the whole lot. He promised to execute the conveyance after the confirmation of the sale and after he got possession through Court.

(2.) On the next day the Court held the sale. Lots Nos. 1 to 4, 7, 36 to 41, 48, 60 and 63, which were the most valuable of the properties attached and which included the plot on which Sorab and Habib Ulla had their dwelling houses, were purchased ostensibly by Prem Sukh Gulgulia, who is defendant 2, and the rest purchased by Nim Chand. The total bid of Nim Chand and Prem Sukh did not reach the decretal amount. The sale certificates were issued in the names of Nim Chand and Prem Sukh for the properties they respectively had purchased in the said sale. Prem Sukh is a friend of Nim Chand and has been found by the lower appellate Court to be a benamidar of Nim Chand. In fact the allegation is that at his intervention the compromise of Title Suit No. 260 of 1935 was brought about in the manner stated above. The finding of the learned Judge on the question of benami has not been, as it could not be, challenged before us.

(3.) After the confirmation of the sale, there was some difference between Sorab and Habib Ulla on the one part and Nim Chand on the other respecting the execution of conveyance. Those differences were settled in April 1936 by Nim Chand agreeing to get a release from Prem Sukh in a short time in respect of the properties for which the sale certificate stood in the latter's name and then to execute the conveyance in favour of the plaintiffs for all the lots- -Nos. 1 to 63. In case, he failed to get the deed of release from Prem Sukh within a reasonable time he promised to execute the conveyance with a recital that Prem Sukh was his benamidar for the properties which stood in Prem Sukh's name. The learned District Judge finds that this agreement, which is pleaded in para. 9 of the plaint, has been proved. The conveyance was not however executed, and Nim Chand made it quite clear by his later conduct that he was not prepared to execute it. Sorab died leaving plaintiffs 2 and 3 as his heirs. They with Habib Ulla, who is plaintiff 1, filed the suit, on 14 March 1939, which is a suit for specific performance of the contract embodied in Ex. 1. They prayed for a conveyance of all 63 items of property. Nim Chand is defendant 1 in the suit and Prem Sukh has been joined as defendant 2 with an allegation that he is the benamidar of defendant 1 in respect of the items we have mentioned above. Important averments concerning the purchase of those valuable items of property by Nim Chand in the benami of Prem Sukh have been made in para. 8 of the plaint, and we will deal with those allegations hereafter, when we would be considering the effect of Section 66(2), Civil P. C.