AMAR AHMAD KHAN Vs. SHAMIM AHMED KHAN

JUDGEMENT

(1.) This appeal is directed against the judgment dated 20th July, 1989 passed by VIIIth Additional Judicial Commissioner, Ranchi in Title Appeal No. 76 of 1989, whereby he upheld the judgment of Sub Judge III, Ranchi in Title Suit No. 67 of 1984/43 of 1987 dated 29.6.1989 by which the suit for specific performance of contract was decreed.

(2.) The case of the plaintiff/respondent No. 1 is that the father of appellants, namely Haji Imam Bux, executed an agreement on 20.8.1975 in favour of plaintiff/ respondent No. 1 for sale of land, details of which given in schedule of the plaint, for consideration of Rs. 1 1,750/-. It is further stated that on the date of execution of agreement itself Rs. 8000/- paid to the father of appellants as advance. It is further stated by the plaintiff that on the date of execution of agreement, possession of suit property was handed over to the plaintiff/respondent No. 1. It is then stated that on 16.9.1978 father of appellants took a sum of Rs. 1000/- as further advance from plaintiff and an endorsement to that effect was made on the back of agreement and was duly signed by him. It is stated that appellants, father, namely, Hazi Imam Bux, died in the year 1978. Thereafter plaintiff requested defendant No. 1 proforma respondent No. 2 to execute and register sale deed for herself as well on behalf of appellants (defendant Nos. 2 to 4), as being mother she is the natural guardian of appellants. It is further stated that the mother of appellants avoided execution of sale-deed on different pretext, however, she took further advance of Rs. 1000/- on 17.5.1981 and then again on 4.1.1983 a sum of Rs. 1480/- was taken as advance. It is further stated that though the plaintiff/respondent No. 1 had paid a total sum of Rs. 11480/- as advance with respect to the agreement dated 20.8.1975 but the defendants are not executing the sale-deed after obtaining necessary permission from competent authority. It is stated that the plaintiff was always ready and willing to perform his part of contract and is still ready to perform his part of contract but appellants and defendant No. 1 were evading to comply their part of contract. Hence the suit filed for specific performance of contract.

(3.) It reveals from the record that proforma respondent No. 2, who is mother of appellants and defendant No. 1 in the Court below, has not contested the suit by filing written statement. Thus the suit proceeded against her ex parte. However the appellants, who were minor at the time of institution of suit, contested the suit through their guardian ad litem appointed by Court. In the written statement, appellants stated that the suit is barred by law of limitation and the same is not maintainable. It is also stated that the father of appellants had not executed any agreement as alleged in the plaint and, if any the same agreement is forged and fabricated document. It is further stated that the signatures of Haji Imam Bux on the said agreement is not the signature of Haji Imam Bux and the same are forged signature. Appellants had also taken a defence that no advance given either to Haji Imam Bux and/or to their mother (defendant No. 1). It is also stated that under the Muslim law, mother is not a legal guardian of minors and therefore defendant No. 1 could not alienate properties belonging to minors. Accordingly, it is stated that the suit is liable to be dismissed.