- (1.) THIS second appeal arises out of a suit filed by the plaintiff respondent Ramji Seth for specific performance of the contract of sale entered into on 2-12-1964 in respect of house No. K 46/167 situate in mohalla Hartinath, district Varanasi.
(2.) ON 2-12-1964 Lalji executed a registered deed in favour of the plaintiff respondent Ramji Seth agreeing to sell the property in dispute. By this deed the property agreed to be sold was also mortgaged in favour of Ramji Seth for a sum of Rs. 1,500/- in case the plaintiff respondent did not obtain the sale deed for the disputed premises. The plaintiff respondent was willing to purchase the disputed premises but Lalji transferred the disputed premises to Suraj Prasad and Harihar Prasad defendants appellants Nos. 2 and 3 on 3rd April 1965. The defence of appellant No. 1 Lalji was to the effect that he did not execute the agreement for sale but had in fact executed a simple mortgage in favour of the plaintiff for a sum of Rupees 1,500/-. It was further alleged that by this deed an unfair advantage was sought to be taken from the appellant No. 1 and that the price of the house agreed to be sold was inadequate and as such the agreement was not specifically enforceable. It was further pleaded in defence that since the agreement lacked mutuality the same was not enforceable. The defendants appellants Nos. 2 and 3, however, claimed to be bona fide purchasers and sought the benefit of Sec. 41 of the Transfer of Property Act. The trial court, after examining the document in question, held that the agreement dated 2nd Dec. 1964 is an agreement for sale and as also a mortgage deed. It further held that since the defendants appellants Nos. 2 and 3 did not enter into the witness box to depose that they took reasonable care to ascertain that the transferor had power to transfer the house in suit nor they produced any evidence in that connection, the suit was not barred by Section 41 of the Transfer of Property Act. The trial court however, refused to grant relief to the plaintiff respondent on the ground that the suit was barred by S. 20 sub-cl. (a) and sub-cl. (b) of the Specific Relief Act, 1963. It further held that on account of the want of mutuality of the promises the plaintiff respondent was not entitled to the equitable relief of specific performance. The trial court therefore refused to grant the relief for specific performance of the agreement dated 2nd Dec. 1964 but decreed the plaintiff' s suit for recovery of Rs. 1,584/- from the defendant appellant No. 1. Against the decision of the trial court the matter went up in appeal. The lower appellate court allowed the appeal and directed specific performance of the contract of sale. Aggrieved the appellants have filed the present second appeal in this Court. It is admitted on record that the agreement dated 2nd Dec. 1964 was executed by the defendant appellant Lalji in favour of Ramji Seth. His only defence was that it was a simple mortgage and could not be treated as an agreement for sale of the property in dispute. The trial court held against the appellants and the said finding was not challenged before the lower appellate court. I have gone through the agreement in question and I am in agreement with the view taken by the trial court. On a reading of the entire agreement it is clear that the agreement dated 2nd Dec. 1964 is clearly an agreement of sale of the property in dispute.
(3.) TWO questions arise in the present appeal. Firstly, as to whether it could be held that the plaintiff respondent had taken unfair advantage and as such the relief could not be granted to him in view of the Specific Relief Act. Secondly whether there was want of mutuality and as such the agreement was not enforceable. While considering the first question it is relevant to quote Sec. 20, Explanation I, of the Specific Relief Act. " Mere inadequacy of consideration, or the mere fact that the contract is onerous to the defendant or improvident in its nature, shall not be deemed to constitute an unfair advantage within the meaning of Cl. (a) or hardship within the meaning of Cl. (b).";