SANKALCHAND KUBERDAS JINGAR Vs. JOITARAM RANCHHOD KUMBHAR

JUDGEMENT

(1.) The facts of the case are as follows :

(2.) The plaintiff was the owner of the suit properties. He had sold them to different persons but had continued to remain in possession. The defendant purchased the properties in the name of his minor son for Rs. 1,500 from the plaintiff's vendees. On October 29, 1934, there was an agreement, exhibit 42, between the defendant and the plaintiff, under which the defendant agreed to sell the property for Rs. 2,000 to be paid at any time within three years with interest at Rs. 0-14-6 per cent, per month. If the money was not paid, the defendant was at liberty to deal with the property in any manner he liked. On the same day, the plaintiff executed a rent note in defendant's favour in respect of the properties purchased by him, agreeing to pay Rs. 17-8-0 per month. On July 20, 1937, the defendant sent a notice to the plaintiff calling upon him to pay the arrears of rent and give vacant possession within 15 days. On August 14, 1937, the plaintiff replied by exhibit 36, alleging that he had sold to the defendant by conditional sale for Rs. 2,000 and that the defendant was to sell the properties to him if he paid Rs. 2,000 with interest at the rate of Rs. 17-8-0 per month, which amount the defendant was pleased to call as rent, and that he was arranging to return the amount due to him. The defendant sent another notice by exhibit 37 on December 31, 1937, calling upon him to surrender possession immediately and intimating to him that a suit would be filed against him if he failed to vacate. In this notice defendant did not say anything about the allegations made by the plaintiff in exhibit 36. The defendant then filed Regular Suit No. 132 of 1939 against the plaintiff to recover possession of the properties on the strength of the rent note and obtained a decree, and in execution of the decree he got possession in June 1940. On October 26, 1940, the present suit was filed by the plaintiff in forma pauperis for specific performance of the agreement to sell executed on October 29, 1934.

(3.) The defendant denies the plaintiff's claim and contends that his minor son Chandrakant in whose name the sale deeds stand was a necessary party, that the suit is time-barred, that the time was of the essence of the contract, and as the money was not paid within three months, the plaintiff is not entitled to specific performance and that the agreement to sell, not being registered, was inadmissible in evidence. The trial Court held that Chandrakant was not a necessary party, that the agreement was not required to be registered, and that the suit is neither barred by time or laches and that the plaintiff did not commit the breach of his promise to pay and that it is proved that negotiations with Ghanchi were broken because of defendant's action. The Court therefore decreed the specific performance of the agreement, subject to certain conditions with which we will deal later. Against this decree the defendant comes in appeal.