Bimla Mehta and Others vs Pushpa Devi and Another

Pradeep Nandrajog, J.

CM No. 880/2011

Respondent No. 2 has not been served, but that hardly matters. Respondent No. 1 was the plaintiff and impugned order dated 27.9.2010 is in her favour. Ex-parte interim injunction granted pending disposal of the suit has been confirmed till disposal of the suit.

Thus, service upon respondent No. 2 is dispensed with.

For the reason stated in the application 27 days'' delay in filing the appeal is condoned.

FAO (OS) No. 27-28/2011

Heard for disposal.

Property No. A-16, Rana Pratap Bagh, Delhi was owned by late Sh. Laxman Dass and his wife Dhanwati Devi. Laxman Dass pre-deceased Dhanwati Devi. After the death of Dhanwati Devi dispute arose between her nephew Harbans Lal Mehta and Maharaj Kumar Mehta and Satish Kumar Mehta. Maharaj Kumar Mehta filed a suit claiming to be an adopted son of Late Laxman Dass. A settlement was arrived at in the suit. It stands recorded in the order dated 13.02.1984.

As per the settlement, it was agreed that during their lifetime Harbans Lal Mehta and his wife Padma Pyari Mehta would enjoy the property and on their demise Maharaj Kumar Mehta and Satish Kumar Mehta would inherit 50% share therein.

Respondent No. 1 claims that by virtue of a registered deed dated 16.5.2009 she purchased Satish Kumar Mehta�s 50% undivided share; and as regards the rest, she claims that Maharaj Kumar Mehta executed an agreement dated 7.9.2008 with Raj Kumar Gupta who in turn assigned the said 50% rights in favour of respondent No. 1. It is claimed that the agreement dated 7.9.2008 between Maharaj Kumar Mehta and Raj Kumar Gupta was preceded by an understanding dated 13.4.2007. Maharaj Kumar Mehta having died, his legal heirs declined to execute the sale deed and this was the reason respondent No. 1 filed a suit seeking specific performance alleging that of the agreed sale consideration in sum of Rs. 30 lakhs she had paid Rs. 2.5 lakhs and was ready and willing to pay the remainder.

Learned Single Judge has refuted the contention of the appellant that respondent No. 1 not being a party to the memorandum dated 13.04.2007 could lay no action. The reason is that pursuant to the memorandum dated 13.04.2007 Raj Kumar Gupta entered into an agreement dated 07.09.2008 with Maharaj Kumar Mehta and being permitted to assign his rights under the said agreement, assigned the same to respondent No. 1. Thus, as an assignee under Raj Kumar Gupta, prima-facie, respondent No. 1 can maintain the action against Maharaj Kumar Mehta, and upon his death against his heirs.

The learned Single Judge has noted that an assignee can institute a suit for specific performance and for which Section 15(b) of the Specific Relief Act and a decision of the Supreme Court has been noted by the learned Single Judge in para 8 of the impugned decision.

Since the only contention urged in the appeal is to the entitlement of respondent No.1 to institute the suit, which we find respondent No. 1 has, the appeal is dismissed.

No costs.

CM No.878/2011

Since the appeal has been dismissed, the instant application seeking stay of the impugned decision till disposal of the appeal is dismissed as infructuous.