PANDEY J. -
(1.) THIS is a defendant's appeal against the lower Court's decree for specific performance of a contract dated 20 February 1957 whereby she was said to have undertaken to re-convey the immovable property purchased by her by a sale deed dated 19 February 1957.
(2.) THE material facts appearing in the pleadings and evidence, which are not now in contest, may be shortly stated. In Chandubhata, a ward of Bilaspur town, there is a row of houses known as Jacob Chawl, which was formerly owned by one J. A. Jacob, who had, by conversion, became a Hindu. He died in 1944 leaving behind him surviving his widow Laxmibai (plaintiff) and children, including a minor son Surya Prakash. One of the blocks of the Jacob Chawl was occupied by D. P. Jagota D. W. 2, a moneylender, who had advanced several sums of money to Laxmibai. She needed Rs. 3,000 more for expenses, including those required for the betrothal of her daughters. She obtained that amount from D. P. Jagota D. W. 2 by executing in favour of the latter's wife, Sushila Devi (defendant), a sale deed Ex. D-5 dated 19 February 1957 for a consideration of Rs. 14,000 in respect of three of these blocks. One of these blocks was, as shown, in occupation of D. P. Jagota D. W. 2 himself as a tenant. Subsequently, he effected repairs and made some improvements in these blocks, two of which were in occupation of tenants who had attorned to the transferee. Finally, on 1 September 1964, Laxmibai sent to Sushila Devi a registered notice Ex. P-12-A to say that she (Laxmibai) was ready and willing to pay Rs. 14,000 and demanded, pursuant to the terms of an Ikrarnama executed in her favour, a reconveyance of the property sold by her. In reply Ex. P-14 dated 5 September 1964 sent by a lawyer, it was stated that the sale deed effected an outright sale for full consideration without any condition for conveying back the property by resale. Nothing was, however, said about the Ikrarnama mentioned in the notice of demand.
According to Laxmibai, the transferee Sushila Devi had executed the Ikrarnama Ex. P-l dated 20 September 1957 whereby she promised to re-convey, within 10 years from the date of sale, the house property sold to her by the deed Ex. P-5 dated 19 September 1957 upon payment of Rs. 14,000. This she did not do in spite of demands made in that behalf orally as well as by the registered notice Ex. P-12-A. Laxmibai, therefore, initiated on 16 December 1964 the action, out of which this appeal arises, for specific enforcement of the contract for reconveyance as well as for compensation for breach of the contract and future mesne profits from the date of suit.
The claim was resisted mainly on the ground that there was no agreement to re-convey the property as alleged by the plaintiff. It was pleaded that Sushila Devi's signature on the Ikrarnama Ex. P-l was a forged one. According to her, the Ikrarnama was inadmissible in evidence for want of registration. She further pleaded that Laxmibai never asked her to accept Rs. 14,000 and re-convey the property and that, in any event, she was estopped from claiming such reconveyance because she had, without any objection, allowed the property to be entered in the municipal records as belonging . to Sushila Devi, asked her tenant G. R. Verma to attorn to Sushila Devi and failed to protest when the latter remodelled the blocks, made additions and alterations and effected major repairs at a cost of more than Rs. 20,000.
(3.) THE Court of first instance found in favour of Laxmibai on all points in controversy and passed, as already indicated, a decree for specific performance of the contract as well as for mesne profits from 3 September 1964, which were directed to be ascertained in execution proceedings.
The main question for consideration in this appeal is whether Sushila Devi executed the Ikrarnama Ex. P-l dated 20 February 1957. On this point, there is the direct evidence of V. P. Lazrus P. W. 5 and Babulal P. W. 6 (brother-in-law and agent of Laxmibai) against the denial made in the witness- box by D. P. Jagota D. W. 2 and his wife Sushila Devi D. W. 3. There is nothing in the character of the evidence itself of V. P. Lazrus P. W. 5 and Babulal P. W. 6 that might discredit them. The lower Court considered the criticism levelled against their evidence and, speaking generally, we agree with the view it took in regard to it. We would, therefore, refer only to the points sought to be made before us in regard to the infirmities in the evidence taken as a whole and other considerations brought to our notice as contra-indicative of the genuineness of Ikrarnama Ex P-1.;