Judgment

THAKKAR, J.:- 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 Registrars 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-Registrars 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 f