- (1.) By this appeal, the appellants (plaintiffs in the suit) (hereinafter referred to as "the plaintiffs" for the sake of convenience) have challenged the judgment and order of the High Court dated 7.5.2002 whereby the suit filed by the plaintiffs on 10.5.1973 for specific performance of the contract to reconvey the suit property by Manaklal, the predecessor-in-interest of respondents Nos. 1 and 2 herein (original defendant No. 1 in the suit) (hereinafter referred to as "the defendant" for the sake of convenience) was dismissed by the High Court.
(2.) The facts necessary are that the suit property was a joint family property of the plaintiffs, namely, Bal Krishna and Ramanlal, both brothers and their late grandmother Mainabai. The parents of the plaintiffs as also their grandfather late Ramnarayan Bhutda, husband of late Mainabai had died much before the execution of the transaction in dispute. On 19.7.1952, when the plaintiffs were minors, their late grandmother Mainabai purporting to act for herself and as guardian of the plaintiffs executed a registered sale deed vide Exhibit D/1for consideration which was stated to be Rs.25,000/- in the sale deed and delivered possession to the defendant/vendee. Mainabai died on 1.3.1964 and her legal representatives, besides the plaintiffs, were joined as proforma defendants Nos. 2 to 14. In the plaint, it was pleaded by the plaintiffs that they being in need of funds required for discharging the business debts of the joint family of the plaintiffs, their grandmother Mainabai, for herself and as their guardian entered into an agreement with the defendant, according to which a sale deed of the suit house was executed by her on behalf of herself and as guardian of the plaintiffs in favour of the defendant and the defendant was to execute an agreement of reconveyance on certain terms and conditions in favour of said Mainabai and the plaintiffs. Accordingly, Mainabai purporting to act on her own behalf and also as guardian of the plaintiffs, who were both minors at that time, executed a registered sale deed of the house on 19.7.1952 in favour of the defendant for consideration which was stated in the deed to be a sum of Rs.25,000/- and delivered possession of the house to him except one room and one gachhi which is still in possession of the plaintiffs. Although the consideration mentioned in the sale deed was stated to be Rs.25,000/-, as a matter of fact only a sum of Rs.10,000/- was paid by the defendant as consideration which has been clearly accepted and acknowledged by the defendant in the agreement of reconveyance which he later executed in favour of Mainabai and the plaintiffs on the same day. By this agreement, the defendant agreed to reconvey the house to Mainabai and the plaintiffs after receiving from them the sum of Rs.10,000/- and interest on this amount. It was further pleaded by the plaintiffs that all essential terms of reconveyance not having been fully and properly stated in the aforesaid agreement which was executed by the defendant on 19.7.1952, certain terms and conditions were notified by a further agreement which the defendant executed in favour of the plaintiffs and their grandmother Mainabai on 21.7.1952. The terms and conditions for reconveyance as agreed and stated in this document were as follows: (1) The defendant No.1 will reconvey the house to Mainabai and the two plaintiffs whenever they shall call upon him to do so by a notice in writing. (2) For such reconveyance, Mainabai and the two plaintiffs will be liable to pay the defendant No.1 the real and original amount which the later had paid to them for the initial sale of the house, together with interest on it @ 6% per annum from the date of the original sale to the date of reconveyance. (3) The amount which the defendant No. 1 shall realize by way of rent of the house in question shall after deducting from it the amount spent by him on house-tax, water tax, tokhat tax, electric charges and expenditure on repairs, be either paid to him to Mainabai and the plaintiffs or credit for it shall be given to them towards the amount payable by them for the reconveyance. (4) No amount on account of electric charges or water charges shall be deducted by the defendant No.1 from the rent collected by him in case he was not required to pay the same and it was collected by him from the tenants. (5) It will be open to Mainabai and the plaintiffs to pay to the defendant No. 1 such sums as they may like from time to time towards the price of reconveyance and the same shall be accepted and accounted for by the defendant No. 1 when accounts shall be taken and interest shall be calculated by 'kat-miti'. It was further pleaded in the plaint that towards the said agreement of reconveyance, the plaintiffs had paid to the defendant Rs.1,000/- on 13.10.1953 and Rs.4,000/- on 1.2.1955 and the defendant has executed in their favour two receipts on 13.10.1953 and 1.2.1955 respectively. As per the plaint, according to the agreement of reconveyance, the plaintiffs and defendants Nos. 2 to 14 were entitled to require the defendant (No. 1) to reconvey the suit house to them by a registered deed after receiving from them the amount of consideration payable to him as per that agreement. He had already been paid Rs.1,000/- on 13.10.1953 and Rs.4,000/- on 1.2.1955. He was further entitled to receive the balance amount of Rs.5,000/- less the net rental income of the house received by him which was to be ascertained after taking an account. For determining the precise balance of the consideration payable to the defendant according to the agreement of reconveyance he was to give an account of all sums collected by him as rent of the house and also of all sums spent by him on account of taxes, repairs or any other charges and after deducting the amounts spent by him from the payable amount realized as rent, to adjust the sum towards the balance amount of Rs.5,000/- and interest which was to be paid to him. On 7.5.1973, the plaintiffs had approached the defendant personally and requested him to take the balance price of Rs.5,000/- together with interest of Rs.10,000/- by kat-miti and after adjusting towards it the net rental income realized by him to be ascertained after an account, to reconvey the house to the plaintiffs and defendants Nos. 2 to 14 by executing a registered sale deed of the house in their favour at their own cost. Then in paragraph 12 of the plaint, it was averred that 'the plaintiffs have been and are ready and willing to perform their part of the contract according to its true construction'. As per the plaint, the cause of action accrued on service of notice on 9.5.1973 when the defendant failed to comply with the plaintiffs' notice dated 7.5.1973. For the purposes of court fee and jurisdiction, the suit for specific performance was valued according to the consideration for the reconveyance on it by kat-miti from 19.7.1952 to the date when the defendant failed to perform the contract in spite of notice taking into account the two payments of Rs.1,000/- and Rs.4,000/- already made to the defendant. The amount of interest by kat-miti on Rs.10,000/- comes to Rs.6,930/-. Accordingly, the suit for specific performance was valued at the total amount of Rs.16,980/- for the purposes of court fee and jurisdiction. The plaintiffs, inter alia, made a prayer that 'defendant No. 1 may be directed to reconvey the suit house to the plaintiffs and defendants Nos. 2 to 14 by a registered sale deed to be executed by him in consideration of Rs.11,930/- and to deliver possession of the same to them'.
(3.) The defendant had died even before filing of the written statement which was then filed by his legal representatives. It was denied in the written statement that the sale deed dated 19.5.1952 was for consideration of Rs.10,000/- only and not for Rs.25,000/-. Agreement of reconveyance by Manaklal either on 19.7.1952 or 21.7.1952 was denied. They also denied the terms set out in the agreement. It was submitted that the signature of Manaklal was obtained by the plaintiffs on some papers in connection with a suit filed against late Ramanandji, father of the plaintiffs and it appeared to them that false agreement and receipts had been prepared by the plaintiffs using those signed papers. The demand either oral or by any letter by the plaintiffs from late Manaklal for execution of the sale deed was denied.;