TMI Blog1995 (8) TMI 328X X X X Extracts X X X X X X X X Extracts X X X X ..... dings before the High Court and who is represented by her heirs, the present appellants, had filed Special Civil Suit No. 22 of 1977 in the Court of learned Civil Judge, Senior Division, Bharuch for specific performance of an agreement dated 16th July 1974 executed by defendants in her favour for sale of the suit property situated at Darjiwad locality of Ankleshwar town of Bharuch District. Her case is that the defendants are brothers. They are owners of the suit house bearing City Survey No. 3112, Municipal No. 443 siturated in the aforesaid locality of Ankleshwar town. That on 12th March 1974 the defendants had agreed to sell the entire ground floor of the suit house including the Chowk and one attached room to the plaintiff for ₹ 12,000/-. She further alleged that she paid ₹ 4,000/- to the defendants by way of earnest money. According to her the defendants had agreed to execute a registered Sale Deed in her favour on or before 16th August 1974 and that she had to pay the remaining amount of ₹ 8,000/- at the time of execution of the registered Sale Deed. It was here case that she was occupying a part of the property as a tenant while the other portion of the hou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed second agreement to sell in favour of the plaintiff. And by this agreement they agreed to sell the ground floor of the suit house to the plaintiff for ₹ 12,000/-. According to them the amount of ₹ 4,000/- which was paid on 16th February, 1974 by way of earnest money was adjusted in the agreement dated 12th March 1974. The defendants denied that the plaintiff was not understanding Gujarati language and that they had taken undue advantage of the situation. According to the defendants as there was no latrine in the Wada they required a portion of the Wada for construction of the bathroom and latrine. So it was agreed between the parties that the land admeasuring 15'x7' and 7 1/2' x 7' should be given to them and hence on 16th July 1974 a fresh agreement to sell to that effect was executed and that consideration for the agreement to sell was fixed at ₹ 12,000/-. It was further contended that the amount of ₹ 4,000/- which was paid earlier was to be adjusted towards this new agreement and it was agreed between the parties that the plaintiff should pay the remaining amount of ₹ 8,000/- to them. That in view of this agreement dated 16th July ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nasmuch as it did not grant specific performance of the agreement to sell dated 16th July 1974 for the entire suit house in view of the finding of the learned Trial Judge on Issue No.1 preferred first appeal before the High Court being First Appeal No. 803 of 1982. So far the defendants were concerned they did not challenge the decree for specific performance of the agreement, nor did they challenge any of the findings recorded by the learned Trial Judge on Issue Nos. 3 and 4. Pending the said appeal the original plaintiff expired and the present appellants were brought on record as her heirs and legal representatives. Said First Appeal came to be dismissed by the learned Single Judge of the High Court. Under these circumstances the heirs of the original plaintiff filed Special Leave Petition (Civil) No.3367 of 1993 before this Court. Notice was issued to the respondents in Special Leave petition and as noted earlier special leave is granted and the appeal is being disposed of by this judgment. As the appellants were appearing as parties in person and were not in a financial position to engage any advocate, we had requested Shri Mudgal, learned counsel to give legal aid to them and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o be accepted. That when the suit house was agreed to be sold by the defendants to the plaintiff pursuant to the suit agreement Ex. 75 it would be improbable to believe that only ground floor portion was to be sold to the plaintiff excluding the upper floor portion which was a Malia or a loft. That such a floorwise division of the proprietory rights in a residential house could not be countenanced and normally the first floor loft portion would go with the ground floor portion of the suit house and it was the entire suit house which would be the subject matter of agreement to sell. That separate ownership of different floors of a residential house in a taluka place like Ankleshwar, could not be contemplated. That even on a proper construction of the entire document, Ex.75, it became obvious that the entire suit house was sought to be sold by defendants to the plaintiff and the defendants could not have retained only the first floor loft portion in their ownership. Learned counsel for the respondents however on the other hand submitted that the decree as passed by the learned Trial Judge and as confirmed by the High Court does not suffer from any error of law or fact. That the plain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aluk. That house was to be released from said Nanalal on payment of said amount. Consequently out of the said consideration of ₹ 12,000/-, ₹ 9,999/- were to be paid to Nanalal Chhaganlal and for that purpose that amount was received in cash from the plaintiff. After getting the said house released it was to be conveyed to the plaintiff by regular Sale Deed and the plaintiff would be entitled to get the Sale Deed executed from the defendants and their heirs and assigns. Then follows the description of the property sought to be conveyed. But while describing the property sought to be conveyed in the last line of the agreement, Ex. 75, it is mentioned that the ground floor portion, Wada portion including the ceiling of the Malia portion were agreed to be sold to the plaintiff by the said document. Below the signature of the defendants on the said document, Ex. 75, is found a written receipt executed by defendant no.2 for having been paid ₹ 12,000/- in cash by the plaintiff. The relevant recitals in the agreement, Ex. 75, clearly show that for a total consideration of ₹ 16,000/- (Rs. 12,000/- being paid along with the document, Ex. 75, and ₹ 4,000/- alread ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was not knowing Gujarati the defendants appear to have taken undue advantage of her ignorance and had purported to convey only ground floor protion of the suit house pursuant to the agreement, Ext,75 even after getting ₹ 4,000/- more from the plaintiff. It has also to be kept in view that pursuant to the agreement Ext. 75 the defendants had in terms agreed to convey the house to the plaintiff, namely, the suit house which was earlier mortgaged to Nanalal. It is not the case of the defendants that entire suit house was not mortgaged to Nanalal but only ground floor portion was mortgaged and the upper floor, namely, the Malia portion was not subject matter of mortgage. Once that position becomes clear it is obvious that the entire house which was mortgaged to Nanalal was to be got released by the defendants and to be conveyed to the plaintiff. Any inaccuracy in the latter part of the recitals about the description of the suit property cannot whittle down the effect of these clear recitals in the document. Ex.75. about the property agreed to be sold thereby. Even otherwise it is impossible to contemplate that the entire ground floor of the suit house would be agreed to be sold ..... X X X X Extracts X X X X X X X X Extracts X X X X
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