Gurnam Kaur vs Mithoo Singh and Others

V.K. Bali, J.—Gurnam Kaur wife of Lal Singh, in this Regular First Appeal, filed by her, has called in question judgment and decree passed by the Senior Subordinate Judge, Faridkot, dated May 10, 1979, vide which the suit for specific performance of an agreement to sell dated March 20, 1978 with regard to the land, fully described in the plaint, has been decreed. While decreeing the suit, the learned Senior Subordinate Judge has, however, stated that the plaintiffs shall pay half of the expenses which shall be incurred on the stamps and registration of the sale deed to be executed by both the defendants in compliance with the decree. Defendant-appellant Gurnam Kaur was also directed to join Lal Singh defendant No. 2 for executing the sale deed in favour of the plaintiffs in compliance with the decree with a view to avoid any future complications.

Brief facts of the case reveal that plaintiffs Mithoo Singh and Cheechar Singh, brought a suit for specific performance of an agreement to sell dated March 20, 1978 executed by Lal Singh in their favour. It was, inter alia, pleaded by them in the plaint that Lal Singh defendant had mortgaged the suit land measuring 32 kanals in favour of the plaintiffs for Rs. 28,000/- vide registered mortgage deed dated May 31, 1974. Subsequently, he mortgaged another piece of land measuring 16 kanals in favour of the plaintiffs for a sum of Rs. 16,000/- vide registered mortgage deed dated 17-6-1976. The possession of the land was delivered to the plaintiffs under two mortgage deeds referred to above. On June 13, 1977 Lal Singh had agreed to sell the suit land measuring 32 kanals for Rs. 44000/- in favour of the plaintiffs by adjusting the mortgage amount of two mortgage deeds and as a result, 16 kanals of land covered under the second mortgage deed was to be redeemed. On 3-2-1978 Lal Singh bad-purchased stamps for executing the sale deed and had got the sale deed scribed in terms of the agreement dated June 13, 1977 but later on he did not execute the sale deed. However, after some time, i.e. on March 20, 1978, Lal Singh agreed to sell the aforesaid 32 kanals of land in favour of the plaintiffs after enhancing the sale price from Rs. 44000/- to Rs, 50700/-. He, thus, executed a fresh agreement of sale on 20-3-1978 and received Rs. 6700/- from the plaintiffs on that day. When the defendant Lal Singh did not adhere to the terms of the agreement, plaintiffs brought about the present suit for specific performance. The matter was contested by Lal Singh and his wife by filing two written statements on their behalf. Lal Singh, however, admitted that he had mortgaged the land vide mortgage deed dated May 31, 1974 in favour of the plaintiffs but amount of mortgage was not admitted by him. He denied the factum of second mortgage dated June 17, 1976. He further pleaded that he had mortgaged only 32 kanals of land for Rs. 27,000/- on two counts with the plaintiffs and they were in possession of the said land. He also pleaded that the plaintiffs had agreed to pay Rs. 6700/- with regard to 32 kanals of land and stamps were also purchased by him for creating an additional mortgage. However, he declined to enter into this deal with the plaintiffs when he came to know that he was being defrauded. The appellant Gurnam Kaur denied the allegations made in the plaint regarding two mortgage deeds and set up her title on the basis of the civil Court decree. On the pleadings of the parties, the learned trial Judge framed following issues :--

"1. Whether the defendant No. 1 had executed the disputed agreement dated 20-3-1978 as alleged? OPP

Whether decree dated 1-1-1997 obtained by defendant No. 2 against defendant No. 1 is void and ineffective against the plaintiffs as alleged? OPP

Whether the plaintiffs have been always ready and willing to perform their part of the agreement? OPP

Whether the defendants have committed a breach of the contract, as alleged? OPP

Whether the plaintiffs are entitled to the relief of specific performance, if so, on what terms? OPP

If issue No. 5 is not proved, to what amount in the alternative relief are the plaintiffs entitled? OPP 7. Relief."

After resultant trial, on the issues reflected above, the suit filed by the plaintiffs was decreed, as has been detailed above.

Mr. Mehta, learned counsel for the appellant vehemently contends that the appellant, who happens to be wife of Lal Singh had obtained a civil Court decree in her favour on January 1, 1977, i.e. much before the agreement dated March 20, 1978 came about in favour of respondents Mithoo Singh and Gheechar Singh. The property, thus, already having vested with the appellant, Lal Singh had no power whatsoever to alienate it and, therefore, the agreement dated March 20, 1978 had to be ignored. There is no merit in the aforesaid contention of the learned counsel for the appellant. It appears that the counsel has not been properly briefed in this matter. Available on record is Ex. P5, an inter-partes judgment which would go to reveal that the appellant filed a suit for permanent injunction restraining her husband Lal Singh from alienating the property in dispute wherein Issue No. 1, which reads as follows, was framed :--

" 1. Whether the plaintiff is owner of the suit land on the basis of collusive decree dated 1-1-1977. If so, its effect, OPP."

The findings on this issue were returned against the appellant. In other words, decree obtained by the appellant-wife was held to be collusive.

No other point has been raised before me.

Finding no merit in this appeal. I dismiss the same with costs quantified at Rs. 4500/-.