Samrathmal vs Atul Kumar and Others

S.K. Seth, J.—This judgment shall also govern the disposal of connected F.A. No. 171 of 1998-Manoharlal and others vs. Atul Kumar and others, as both these appeal arise out of a common judgment and decree passed by the trial Court for specific performance of contract in favour of respondent No. 1 and 2. Appellant in F.A. No. 170 of 1998 is the father of appellants in the other appeal (supra). Contest is between these appellants and respondent No. 1 and 2; and pertains to House No. 71, M.G. Road, Kukshi more particularly described in the plaint (hereinafter referred to as the suit property for short). It is an admitted fact that suit property belonged to Rakhabji, father of Samrathmal and Shantilal and after Rakhabji''s death in the year 1959, mutation was made revenue records in the name elder-brother Shantilal.

It is also an admitted fact that on 5.7.1992 Samrathmal and Shantilal entered into an agreement of sale of the suit property in favour of respondent No. 1 and 2 for a total consideration of Rs. 2,00,101/-. Written agreement to this effect is Ex. P-2 and purchasers paid Rs. 20,000/- in advance to vendors at that time. It is an admitted fact that Samrathmal and Shantilal were real brothers; Shantilal died on 18.10.1992 intestate leaving behind no wife or children. Since then, the property is recorded in the name of Samrathmal as owner of it. It is also admitted that plaintiffs served a registered notice dated 15.11.1993 requesting Samrathmal to execute the sale deed but in vain. Hence the suit for specific performance. It is also important to remember that admittedly respondent No. 1 Kantabai was the real niece (predeceased sister Kanchanbai''s daughter) of Samrathmal and Shantilal. Except Ashok Kumar (respondent) who is a stranger, and Dhakhabai, another sister of Samrathmal and Shantilal, rest of the respondents are other representatives of late Smt. Kanchanbai. Thus, it clear that parties are close relatives and resident of same area.

Respondent No. 1 and 2 brought a suit for specific performance based upon agreement of sale dated 5.7.1992 for a total consideration of Rs. 2,00,101/- out of which Rs. 20,000/- was paid on the date of agreement. It was agreed between the parties that the sale-deed would be executed on or about 15.1.19993. After agreement, plaintiffs paid in small sums of money from time to time amounting to Rs. 31569/- to vendors in their account; and after adjusting said payments, the balance outstanding was Rs. 1,48,536/-. They therefore, sent D.D. of Rs. 77000/- through a registered notice which returned unserved. It was alleged that plaintiffs were always ready and willing perform their part of the contract. The sent a further registered notice dated 25.11.1993 to Samrathmal for execute the sale-deed. As no response was given to the said notice, plaintiff instituted the suit for a decree of specific performance. The suit was filed against Samarathmal and his 3 sons (appellants in F.A. No. 171/98). It is therefore, relevant to mention that other respondents were added as party to the suit during trial at the instance of the appellants herein.

Except the admitted facts, Samrathmal denied every other averment in his written statement. It was submitted that time was essence of the contract; plaintiffs were not ready and willing; non-joinder of necessary parties; that the suit property was the ancestral property and Shantilal alone had no right to sell the property; and lastly plaintiffs themselves committed breach of the terms of agreement therefore they were not entitled to any relief.

In similar vein, appellants in F.A. No. 171/98 denied claim of the plaintiffs on various grounds including on the ground of limitation. They raised the plea that the agreement was not binding upon them and no decree could be passed against them.

The other respondents i.e. Dhakhabai and legal heirs of the late Kanchanbai admitted plaintiffs" claim and submitted that consideration money be distributed as per their share determined in a Decree Ex. D-2. So far as Rajendra Kumar is concerned, the only allegation against was him was that he is a stranger and in order to defeat the claim, Samrathmal tried to put in put in possession. What further transpired thereafter, is not very clear either from the judgment or record of the Court below.

With these pleadings parties went to trial and adduced their respective evidence. Trial Court on due consideration of evidence that has come on record decided in favour of the plaintiffs and decreed the suit. It was found that in terms of agreement they had paid advance and they were ready and willing to perform their part of the contract. It was found that Appellants in connect appeal i.e. Samrathmal or his sons who are now fighting tooth and nail, could not wriggle out of the agreement because of their own express or tacit conduct and behaviour. Court below has recorded pure findings of facts based upon proper appreciation of evidence and negative the plea that ''time was essence of the contract''; we see no reason or find justification to upset these findings on any ground what so ever. We find no force in the submission that agreement was not binding on appellants in F.A. No. 171/98. From record, it is clear that Rakhabji died intestate in the year 1959; leaving behind two sons Shantilal and Samrathmal and two daughters Dhakhabai and Kanchanbai. Devolution of his interest, therefore, would be governed by provisions of Hindu Succession Act, 1956 which has the overriding effect over the earlier uncodified law and principles of Hindu Law of intestate succession. It cannot be disputed that appellants in F.A. No. 171/98 would succeed to property in question during the lifetime of their father Samrathmal. They had a right to claim partition which they never exercised. Having failed to do so, and now they are trying to over-reach the solemn agreement executed by their father and late uncle Shantilal. Obviously the conduct of appellants is worse than ''Shylock''. As discussed by the trial Court in detail, weight of evidence is against them and suit was rightly decreed in favour of the plaintiffs. So far as the challenge to distribution of consideration money amongst parties, suffice it to say the same is in terms of the separate decree of the Court in some other proceedings and it cannot be questioned in the proceedings arising out of the suit for specific performance. We find no fault with the exercise of discretion by the trial Court in the facts and circumstances of this appeal.

In view of the foregoing discussion, we find no merit and substance in these appeals. Consequently both deserve to be and are hereby dismissed with no orders as to costs. Let a copy of this judgment be kept in the file of the connected appeal.