SHARMA, J. - (1.) THIS appeal under Section 96 C. P. C. arises out of the judgment and decree dated 31. 5. 1990 passed by the learned Additional District Judge No. 2, Ajmer whereby the learned Judge has dismissed the plaintiff's sit.
(2.) PLAINTIFF Om Prakash filed a suit against the defendants for specific performance with the averments that late Gopi Chand, husband of defendant No. 1 and father of defendants No. 2 to 7 was the sole owner of the property described in para No. 1 of the plaint. After the death of Gopi Chand, the defendants being legal heirs of late Gopi Chand, became owner of the suit property. The defendant No. 1 at her own and in the capacity as authorised representative of efendants No. 2 to 7 continued to maintain the property and used to receive rent from the tenants including plaintiff residing in the suit premises. Some of the portion of the suit property as described in para 3 of the plaint was on rent with the plaintiff and plaintiff and his mother Smt. Kastoori Devi was residing therein and paying rent of Rs. 28/- per month. In the remaining portion at the upper floor, Sumer Chand Jain, husband of defendant No. 8 was in possession as tenant. The plaintiff further alleged that defendant No. 1 executed an agreement in his favour on 5. 12. 1982 at Ajmer, thereby agreeing to sell the property mentioned in para No. 1 of the plaint for a consideration of Rs. 18,000/- and received a sum of Rs. 2,000/- as an advance against sale consideration. The defendant assured the plaintiff that she will execute a sale deed within a period of one year and shall also hand over vacant possession of the suit property and that she will receive the remaining amount of sale consideration at the time of registry. In case of failure on her part, the defendant granted liberty to the plaintiff to take legal action. The plaintiff further alleged that before expiry of the period of agreement, the defendants No. 1 to 7 fraudulently and with dishonest intention transferred the disputed property in favour of defendant No. 8 for a consideration of Rs. 22,000/ -. Since the agreement dated 5. 12. 1982 made in favour of the plaintiff was already in existence, therefore, the subsequent agreement made by defendants No. 1 to 7 in favour of defendant No. 8 is illegal and ineffective so far as rights of the plaintiffs are concerned and hence the same is liable to the quashed. Accordingly to the averments of the plaint, the defendant No. 8 was well aware of the execution of agreement in favour of the plaintiff but still she hatched conspiracy with defendants No. 1 to 7 and got the sale deed executed and registered in her favour. Having come to know about the execution of sale deed in favour of defendant No. 8, the plaintiff informed the defendants on 14. 9. 1983 through registered post and requested to complete their part of the contract and to execute sale deed after receiving the remaining amount, which the plaintiff was always ready to pay. It was in these circumstances, the plaintiff filed a suit for cancellation of sale deed made in favour of defendant No. 8 and for specific performance. The defendants No. 1 and 3 to 7 filed written statement and denied the averments of the plaint. They have stated that number of the property has wrongly been disclosed. It has been denied that the defendants No. 2 to 7 had authorised defendant No. 1 to take care of the property and to receive the rent. The defendants No. 1 to 7 being the legal heirs of Gopi Chand were the owners of the property and all were realising rent from the tenants and the defendant No. 1 had never been the authorised representative. They have admitted that Sumer Chand, husband of defendant No. 8 was tenant. However, Smt. Kastoori has been denied to be the tenant. It has been averred that defendant No. 8 became owner of the property, bearing No. 1011-A/14 by virtue of registered deed dated 8/25. 3. 1983 and the plaintiff became tenant of defendant No. 8. Neither the defendant No. 1 executed any agreement in favour of plaintiff nor she assured him in any manner. While denying all averments in the plaint, the defendants have stated that the documents filed by the plaintiff are forged. The defendant No. 3 sold half of the portion of property AMC 969/32 for a consideration of Rs. 22,000 to defendant No. 8 and executed an agreement on 25. 11. 1982. It has been denied that defendant No. 1 sent any letter to the plaintiff on 22. 7. 1983 and 16. 9. 1983. The plaintiff No. 1 alone had no right to execute any agreement in respect of sale of the property. The plaintiff has tried to take undue advantage of defendant No. 1 being an illiterate lady and was not competent either to sale or to execute an agreement to sale. The defendant No. 8 has filed separate written statement and reiterated the facts stated in the written statement filed on behalf of defendants No. 1 and 3 to 7. It has been stated that since the defendant No. 8 being the owner of the property started insisting the plaintiff to vacate the premises and to pay the arrears of rent, therefore, the plaintiff has brought the present suit and has prepared a forged agreement to sell dated 5. 11. 1982. On the basis of pleadings of the parties, the trial court framed as may as 11 issues and at the conclusion of trial, the learned trial court vide its impugned judgment and decree has dismissed the plaintiff's suit with costs. Hence the present appeal.
(3.) I have heard learned counsel for the parties and gone through the evidence and material on record and the impugned judgment. The trial court, on consideration of evidence and material on record, concluded that Mst. Gayatri Devi, defendant No. 1 had executed an agreement Ex. 1 on 5. 12. 1982 in favour of plaintiff. She had executed the agreement on her own behalf and not on behalf of other co-sharers namely defendants No. 2 to 7. The court below found that plaintiff had paid to defendant No. 1 a sum of Rs. 2000/- as an advance amount at the time of execution of agreement Ex. 1. However, the trial court concluded that since agreement Ex. 1 was executed by defendant No. 1 on her own behalf without the consent of defendants No. 2 to 7, co-sharers in the disputed property, therefore she was not competent to enter into any agreement in respect of joint property and accordingly the plaintiff was not entitled to get the sale deed registered in his favour on the basis of agreement Ex. 1. In this view of the matter, it was held that agreement Ex. 1 having been executed by defendant No. 1 without the consent of co-sharers was ineffective against defendants No. 2 to 7. The trial court further came to the conclusion that disputed property was the joint property and the plaintiff has not been able to prove that defendant No. 1 decided to sell the property either for the purposes of welfare of the family or to meet the personal needs. In fact, the plaintiff and husband of defendant No. 8, both were tenants in the disputed property and the defendants were negotiating with them for sale of the property. The plaintiff with his influence succeeded in getting an agreement Ex. 1 executed in his favour by defendant No. 1 by paying Rs. 2,000/ -. Prior to execution of agreement Ex. 1, the defendant No. 3 Mitendra Nath Sharma executed an agreement in favour of defendant no. 8 with the consent of other defendants. All the defendants agreed to sell the disputed property to defendant No. 8 for a consideration of Rs. 22,000/- and having received the entire amount, the defendants executed a registered sale deed Ex. 12 in favour of defendant No. 8. In these circumstances, the trial court held that defendant No. 8 was the bona fide purchaser and therefore the sale deed cannot be declared to be void and ineffective. Undisputedly, Smt. Gayatri Devi, defendant No. 1 had executed an agreement to sell (Ex. 1) dated 5. 12. 1982 in favour of plaintiff Om Prakash. However, prior to the execution of above agreement Ex. 1, Mitendra Sharma, defendant No. 3 on his behalf and on behalf of all co-sharers had executed an agreement to sell in favour of Smt. Sharda Devi, defendant No. 8, thereby all the co-sharers agreed to sell the disputed property for a sum of Rs. 22,000/ -. It may be stated that defendants Manoj Chand, Satish Chandra, Kumari Bharti, Kumar Umesh Nandini and Kumari Chandra Mukhi had executed special power of attorney in favour of their mother Smt. Gayatri Devi, defendant No. 1 thereby authorising her to sign the sale deed, present the sale deed before the Sub- Registrar for registration and to admit the execution of sale deed and to receive the balance of sale consideration etc. on their behalf. Para 1 of the power of attorney specifically mentions about the execution of an agreement dated 25. 11. 1982 to sell the disputed property in favour of Smt. Sharda Devi, defendant No. 8 for a consideration of Rs. 22,000/ -. According to the plaintiff, this agreement dated 25. 11. 1982 is forged one because the sale deed Ex. 12 executed by all the defendants does not contain the fact of any such agreement having been executed. It is true that the sale deed does not expressly contain the fact of execution of agreement Ex. A/1. In Ex. A/1 it has been mentioned that as against sale consideration of Rs. 22,000/-, Rs. 1,500/- have been received in cash and Rs. 2,500/- have been received through Bank Draft No. 534632 dated 25. 11. 1982. In the sale deed Ex. 12, it has been mentioned specifically that Rs. 4,000/- have been paid in advance. In this way, Rs. 4,000/- have been paid in advance and the balance amount Rs. 18,000/- have been agreed to be paid at the time of registration of sale deed. Defendant No. 8 Sharda Devi has proved this agreement, Ex. A/1. She has stated in her statement that before purchase of house, she had entered into an agreement with Mitendra Sharma defendant No. 3. She has admitted her signature at portion A to B. It is thus established that an agreement to sell Ex. A/1 was executed on 25. 11. 1982, thereby disputed property was agreed to be sold for a sum of Rs. 22,000/- to defendant No. 8 and Rs. 4,000/- as stated above were paid in advance by defendant No. 8. ;