SHIV NARAYAN DHINGRA J.

1. This suit has been filed by the plaintiff for specific performance of an agreement to sell dated 15th May 2007 in respect of a land measuring 12 bighas and 10 biswas, Village Sultanpur, Mehrauli and for cancellation of a gift deed dated 23th March 2007 executed by defendant No.1 in favour of defendants No.2 and 3 in respect of the same land.

.2. Plaintiff is the father of defendant No.1 and defendant No.2 and 3 are the wife and son of defendant No.1. As per the facts stated in the plaint, the plaintiff and defendant No.1 were member of HUF comprising of plaintiff, his wife and three sons. An oral partition of the HUF property had taken place on 10th April, 2002 and a memo of oral partition was prepared and got registered on 9th May 2002. It is stated by the plaintiff that defendant No.1 became the absolute owner of agricultural land measuring 12 Bighas and 10 Biswas as described in the plaint after this partition and defendant No.1 separated from the joint residential property so as to maintain peace in the family. Defendant No.1 was allowed to stay in the residential house till he constructed new house. It is further stated that the agricultural land of coparceners was contiguous and the family members were apprehensive that a peace of land, out of the total family land may not reach into the hands of an outsider and therefore a Memo of Understanding dated 25th February 2004 was signed between plaintiff and defendant No.1 and it was agreed that if defendant No.1 desired to sell his share of land or create any third party interest, he would offer the same to the plaintiff on the same price as was kept in mind at the time of partition of the property. It is submitted that the MoU dated 25th May 2004 thus, created a peremptory right in favour of plaintiff for purchase of the suit property for a sum of Rs.31 lac. This MoU was within the knowledge of defendant No.2 and other family members of defendant No.1 In May, 2007 it was represented by defendant No.1 to the plaintiff that he needs to sell the property along with super- structure. He therefore entered into an agreement to sell dated 15th May 2007 with the plaintiff. Plaintiff gave a cheque of Rs.31 lac dated 17th May 2007 to defendant No.1 as total sale consideration of the the suit property with the structure constructed thereof. The defendant

.No.1, however, took no steps to vacate the suit property and therefore plaintiff wrote a letter to defendant No.1 on 20th September 2007 reminding him to vacate the suit property on or before 31st December 2007, the last day for execution of sale deed. The letter written by the plaintiff was not responded to. On 1st October 2007, while checking revenue records of Tehsil Mehrauli, plaintiff learnt that defendant No.1 had executed a gift deed dated 23rd March 2007 in favour of his wife and his minor son. So, plaintiff applied to Sub Registrar and obtained a copy of gift deed dated 23rd March 2007. While executing the agreement to sell dated 15th May 2007, defendant No.1 did not disclose about the gift deed executed by him and, therefore no title, right got conferred pursuant to the gift deed in favour of defendant No.2 and 3. It is submitted that no transfer of the suit property could take place without notice to the plaintiff. The gift deed, therefore, was invalid. A prayer is made that this Court should cancel the gift deed since the gift deed was a result of fraud as the property fallen to the share of defendant No.1 by partition of HUF, could not have been transferred in any manner by defendant No.1 without offering it first to the plaintiff and the Court should declare the gift deed to be null and void and directed specific performance of the agreement to sell.

3. A perusal of the documents filed by the plaintiff would show that the partition of the HUF took place on 9th May 2002 and at the time of partition, wife of the plaintiff was given share equal to sons. The relevant covenants of of partition read

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