- (1.) The widow and legal heirs of the original plaintiff may be pardoned for their cynicism having lost the property as well as the bread winner who committed suicide on losing his meritorious matter at all levels.
(2.) A poor person (original plaintiff) owned a small house property in Bambagher, Ramnagar, district Nainital. His son was taken ill. He did not have sufficient liquid resources to enable him to incur the necessary expenditure for treating his ailing son. He thereupon entered into a transaction with the original defendant who was a resident of the same place on August 16, 1967. The essential features of the transaction were :- (1) Plaintiff executed a document pertaining to ostensible sale of the property in question for a consideration of Rs. 7000/-, favouring the defendant. (2) On the same day a contemporaneous document was executed by the defendant in favour of the plaintiff agreeing to sell the property in question for a sum of Rs. 7000/-within 10 years of the date of the execution of the aforesaid document. (3) The possession of the property remained with the original plaintiff and he was to pay Rs. 80/- per month as rent. (4) The Municipal and other taxes in respect of the property were to be paid by the plaintiff. It appears that while the sum of Rs. 7000/- so raised was expended in the treatment of his son by the plaintiff it was of no avail inasmuch as the son died of the ailment notwithstanding expensive treatment given to him. Nearly 10 years passed. The deadline for getting the sale deed executed from the defendant on the expiry of 10 years in pursuance to the agreement of sale was approaching fast. According to the plaintiff he personally contacted the defendant and made a number of requests to the defendant to fulfil his obligation by executing the sale deed. But the defendant refused to honour his commitment. Five days before the deadline that is to say on 11-8-1977 he sent to the defendant who was residing at Ramnagar itself a notice through his Advocate by Registered Post calling upon him to execute the sale deed in his favour as stipulated in the agreement of sale dated August 16, 1967. He had also sent a local telegram on 11-8-1977 calling upon the defendant to remain present at the Office of the Sub Registrar on August 16, 1977 (deadline was 16-8-1977). The defendant did not reply to either of these notices. The defendant never conveyed in writing to the plaintiff that he was ready and willing to convey the property to the plaintiff to discharge the obligation undertaken by him by the agreement to sell either in response to the registered notice sent through the Advocate or the local telegraphic notice sent on 11-8-1977, five days before the deadline. He maintained complete silence. On the crucial date the plaintiff remained present at the Sub Registrar's office and made an application to the Sub Registrar to make a record of the fact that he was so present. The defendant, such is the version of the plaintiff, did not care to attend the Sub-Registrar's office though the plaintiff was present throughout the day. On the next day, after the date of the deadline that is to say on 17-8-1977, the defendant sent a local telegram to the plaintiff to the effect that he had remained present at the office of the Sub Registrar, but that the plaintiff had remained absent. Some one year later the plaintiff instituted the suit culminating in the present appeal seeking specific performance of the agreement to sell the property in question for Rs. 7000/-. In the plaint the plaintiff set out the circumstances pertaining to the transaction and asserted that it was a transaction of mortgage. The real intention of the parties was to create a mortgage but an ostensible transaction of sale was entered into and a contemporaneous agreement for selling the property to the plaintiff was executed by the defendant. However the relief sought was for a decree for specific performance of the agreement of 1967 to sell for Rs. 7000/-. The plaintiff asserted that he had made oral requests, sent a registered notice, a telegraphic notice, and had remained present at the Sub Registrar's office for the whole day. The defendant in his written statement did not specifically controvert these averments made in the plaint. He rest content by saying in regard to each of these averments that the same was "not admitted". The most important feature of the written statement is that the defendant nowhere asserted that he had gone to the Sub Registrar's office and had remained present there at on 16-8-1977. His main defence was to the effect that the plaintiff had no funds and he was not ready and willing to perform his obligation.
(3.) The trial court came to the conclusion that the plaintiff did not have adequate funds to purchase the property. The trial court did not record a specific finding on the question, as to whether or not the defendant had remained present at the Sub Registrar's office in pursuance to the requisition made by the plaintiff by the registered notice and by the local telegram five days in advance. The trial court dismissed the plaintiff's suit holding that the plaintiff could not have been possessed of Rs. 7000/- on the deadline stipulated for performance mainly on the ground that he was a poor person who could be earning Rs. 200/- or so per month and could not have made any saving and that he had not produced his passbook (which he was never called upon to produce by the other side or by the Court). The Lower Appellate Court and the High Court successively dismissed the appeal preferred by the unsuccessful plaintiff on the same pattern of reasoning. The plaintiff having committed suicide in the wake of the judgment of the High Court, his widow and legal representatives have approached this Court by the present appeal by special leave.;