MT GAINDO DEVI Vs. SHANTI SWARUP

JUDGEMENT

(1.) This is an appeal by Mt. Gaindo Devi, defendant 2, in a suit for specific performance of a contract for sale. The plaintiffs to the suit were Shanti Swarup and his two brothers. It was alleged in the plaint that Farid Bakhsh, defendant 1, entered into an agreement on his own behalf and on behalf of his sister, Mt. Momina Bibi, for the sale of a shop in Ghaziabad for a sum of Rupees 8,150. Mt. Momina Bibi had 46 out of 173 sihams in the shop and Farid Bakhsh had the remaining 127 sihams. Out of the sale consideration a sum of Rs. 2,167 would be payable to Mt. Momina Bibi and the balance to Farid Bakhsh. According to the evidence of the plaintiff Shanti Swarup, the defendant Farid Bakhsh was indebted to Shanti Swarup and brothers on the basis of three promissory notes, and a notice was given to Farid Bakhsh on 8 June 1932 to pay off the moneys due under the promissory notes, and in that connection the deponent had to go several times to the house of Farid Bakhsh, when it was proposed that the shop belonging to him and his sister might be purchased by Shanti Swarup. The negotiations were completed by 15 July 1932, when Farid Bakhsh received a sum of Rs. 100 as earnest money for the sale of the shop in question. It was agreed that a sale deed would be executed within a few days, and although in the Court below there was some controversy as to the time within which the sale deed was to be executed, there is no such controversy before us, and it might be taken that the agreement was that within a reasonable time the transaction would be effected.

(2.) Farid Bakhsh had to leave Meerut for Cawnpore on or about 18 July, and on 22 July, two telegrams were sent by Shanti Swarup to Farid Bakhsh, one at Meerut and one at Cawnpore, demanding the completion of the sale deed. The telegrams were not answered, and by 26 July 1932 the plaintiffs came to know that Farid Bakhsh was negotiating for the sale of the shop with Bhikan Lal, the husband of Shrimati Gaindo Devi, the appellant before us, and a letter was, therefore, sent to Farid Bakhsh reminding him of the contract between the plaintiffs and himself and warning him that the sale should be completed at an early date. A copy of this notice was sent to Bhikan Lal an Hari Shanker, the son of Shrimati Gaindo Devi. A suit (1096 of 1932) for the recovery of moneys due under the three promissory notes had already been instituted in the Court of the Munsif at Meerut on 12 July 1932, and in the agreement of sale which was evidenced by means of a letter sent by Farid Bakhsh to one Hargulal Singh, it was mentioned that Farid Bakhsh would take the proportionate price in respect of his share (127 sihams) after deducting the costs and the amount of debt due under the three notes of hand to Lala Shanti Swarup and others in respect whereof Farid Baksh had come to know that a suit had been filed. While the suit was pending, when the plaintiffs came to know that Farid Bakhsh was resiling from his agreement, the plaintiffs filed an application on 28 July 1932 in the suit on the basis of the promissory notes for attachment before judgment of the shop in question, and a great deal of discussion has centred round this application which we shall consider after we have narrated the other facts which have led to the institution of the present suit for specific performance. On 3 August, 1932, Mt. Momina Bibi executed a sale deed of her share of 46 sihams in the shop in favour of Shanti Swarup and others and took Rs. 2,167 as her share of the purchase money. On 6 August 1932 another notice was sent by Shanti Swarup to Farid Bakhsh which also was not replied.

(3.) The claim for the recovery of money on the basis of the promissory notes was decreed on 30 August 1932, and on 1 September 1932 Farid Bakhsh executed a sale deed in favour of Mt. Gaindo Devi for Rs. 6,600, and left in deposit with the vendee a portion of the consideration money for full payment to Shanti Swarup of the principal and interest and costs due under Suit No. 1096 of 1932. It was agreed that the remaining sum of Rupees 1,066 would be received in cash before the Sub-Registrar by the vendor. Before the execution of this sale deed, when the plaintiffs came to know of the same, a telegram was sent to the Sub-Registrar requesting him that the purchaser of Shop No. 204, Wrightganj, Ghaziabad, should be informed that Farid Bakhsh, vendor, had contracted to sell the same to Shanti Swarup, and that a suit was being filed. Over and above this, an application was given to the Sub-Registrar by one Indar Singh on behalf of Shanti Swarujrj stating the circumstances of the contract between Farid Bakhsh and Shanti Swarup, and requesting that the vendee of the property might be informed that he should desist from purchasing it and that Sheikh Farid Bakhsh might also be informed that he should refrain from getting it registered. The Sub-Registrar informed the parties of the telegram and the application and made a note to that effect in the endorsement at the back of the sale deed in favour of Mt. Gaindo Devi. A telegram was also sent to the scribe of this sale deed requesting him not to write out the sale deed on 1 September 1932. As we mentioned before, Mt. Gaindo Devi is the wife of Bhikan Lai and the mother of Hari Shanker, and from the facts which we have-given above, it is clear that Bhikan Lal and Hari Shanker were informed on more occasions than one of the contract of sale between Farid Bakhsh and the plaintiffs, and one cannot escape the suspicion thafe the negotiations of sale were conducted by Bhikan Lal and Hari Shanker, and the lady's name was introduced in the sale deed so that a defence might be available, in case a suit for specific performance was instituted that the vendee was a bona fide transferee for value without notice of the earlier contract.