Hansaria, J. - (1.) This litigation is about three and half decades old by now inasmuch as the suit for specific performance for reconveyance of the property sold by the plaintiff was filed in 1962. It was decreed by the trial Court (a single Judge of the Madras High Court) on 10-11-65. The Letters Patent Bench, however, on appeal being preferred, set aside the decree on 10.5.72. Hene this appeal by special leave by the plaintiff. As the plaintiff died in 1980, his legal representative has pursued the appeal. It may also be stated that during the pendency of this appeal the appellants assigned their right to two outsiders sometime in September, 1988. We would have, therefore, to see, in case we were to agree with the plaintiff regarding there having been a contract for reconveyance, which is the real bone of contention between the parties, whether in view of the aforesaid assignment, a decree for specific relief is still called for, keeping in view the fact that such a relief is discretionary.
(2.) We may note relevant facts. These are, that the original plaintiff, S.V. Ramakrishna Mudaliar, was a man of means at one point of time, to run into rough weather, which required mortgage of some of his properties. It is to repay the mortgage debt that the plaintiff sold two of his properties ostensibly to Mrs. Rajabu Fathima Buhari (Mrs. Buhari) described in Schedules 'A' and 'B' of the plaint. The sale deeds in respect of these properties were executed on 26-3-59 (Ex.P.2) and 31-3-59 (Ex.P.3); both were, however, registered on 31.3.1959. The plaintiff's case (supra) is that before these properties had been sold there was a 'gentleman's understanding' between him and Mr. Buhari, husband of Mrs. Buhari, on 24-3-59 that in case the purchase amounts as per the sale deeds were repaid within three years, the properties would be reconveyed, when in addition to sale price, 10% thereof shall be paid as solatium of the actual amount spent on improvement, if any. This understanding was put in writing subsequently under the title "Record of fact",which was exhibited during the course of the trial as Ex.P1. Plaintiff's another case was that though the sale deeds were in the name of Mrs. Buhari, the real purchaser was Mr. Buhari . To put it differently, Mrs. Buhari was only an ostensible owner. The third important facet of the plaintiff's case (supra) was that Ex. P1 had been signed by one Kamal as an agent of the couple, who were impleaded as defendants in the suit. As, however, of the two properties sold, only one, styled as 'Serles Garden' was reconveyed in May, 1960, the suit was filed for seeking a decree for the reconveyance of the second property, described in Schedule 'A' to the plaint.
(3.) As already noted the trial Court decreed the suit, which decree came to be reversed in appeal by Letters Patent Bench. The following questions are to be answered to dispose of the appeal:- (1) Whether Ex.P1 is a genuine document. This needs determination because the Letters Patent Bench has allowed the appeal of the defendants principally on the ground that this document is a result of fabrication. (2) If the aforesaid document be genuine, whether Kamal who is said to have signed the same was an agent of the defendants. (3) Whether the understanding given by Mr. Buhari, could be enforced against Mrs. Buhari. This would also require determination of the question whether Mrs. Buhari was a name lender. (4) In case the factual basis of the plaintiff's case (supra) be correct, the legal question to be decided would be whether in the facts and circumstances of the case, more particularly the assignment of the right by the successors-in-interest of the plaintiff in favour of third person,granting of the relief of specific performance is called for, which the statute has left to the discretion of the Court. GENUINENESS OF EX. P1 ;