IMPORTANT POINT
.

ANIL KSHETARPAL, J.

1. Defendants Nos.2 and 3-appellants are in the Regular Second Appeal against the judgment passed by the learned First Appellate Court granting the relief of specific performance of the agreement to sell dated 12.12.1996, although, learned trial Court found that the plaintiff is only entitled to refund of the earnest money.

2. In the considered opinion of this Court, the following substantial questions of law need determination:-

(A) Whether the First Appellate Court committed an error in reversing the discretion exercised by the trial Court without discussing/analyzing the reasons given by the trial Court to deny the relief of specific performance?

(B) Whether a registered sale deed in which payment of the entire sale consideration is admitted can be set aside on the ground that some part of the payment has not been proved by the marginal witnesses?

3. The plaintiff claimed that Late Sh. Hansa had executed agreement to sell in his favour on 12.12.1996 to sell the suit property for a total sale consideration of Rs.4,00,000/- and had received Rs.1,00,000/- as an earnest money. The sale deed was to be executed and registered on payment of the balance sale consideration on 26.11.1999. The plaintiff instituted the suit on 27.11.1999. The plaint is dated 26.11.1999. The plaintiff in his plaint has further pleaded that Hansa in order to frustrate his rights under the agreement to sell had executed a sale deed in favour of defendant No.2 on 10.01.1997 for a sum of Rs.4,90,000/-. Defendant No.2 had further executed a sale deed in favour of defendant No.3 dated 18.03.1999. Although, the suit was filed when Hansa was alive, however, Hansa died after the institution of the suit. Although, the exact date of death of Hansa has not come on file, however the application for bringing on record the legal heirs of Hansa is dated 06.04.2000. After the application was allowed, three daughters of Hansa through their attorney filed written statement admitting the execution of the agreement to sell with the plaintiff and receipt of earnest money. Surprisingly, the stand was taken in the written statement that the sale deed executed by Hansa in favour of defendant No.2 and further sale deed executed by defendant No.2 in favour of defendant No.3 are illegal. The execution of the sale deed was denied.

4. Since, the execution of the agreement to sell in favour of the plaintiff was admitted, the learned trial Court after noticing certain facts chose to grant relief of refund of the earnest money. The reasons given by the trial Court are as under:-

1. It was unusual that the target date for execution and registration of the sale deed was fixed after a period of almost three years.

2. The plaint of the suit filed by the plaintiff is dated 26.11.1999 i.e. the day fixed in the agreement to sell for execution of the sale deed.

3. In between the rights of defendant Nos.2 and 3 have intervened and they have become owner of the property by registered sale deed.

4. Possession of defendant Nos.2 and 3 is admitted.

5. Learned first Appellate Court during the hearing of the appeal initially directed the trial Court to send a report after recording a finding on issue Nos.9A, 9B and 9C and after receipt of the report, learned First Appellate has proceeded to accept the appeal and reversed the discretion exercised by the trial Court. Learned first Appellate Court has recorded a finding that the sale deeds in favour of defendant Nos.2 and 3 are not bona fide. The payment of the sale consideration is not proved on the file. That is how these two appeals have come up for decision before this Court.

6. It is not in dispute before this Court that Hansa was having only four daughters. It is also not in dispute that Hansa during his lifetime used to live with defendant Nos.2 and 3. It is further not being disputed that Hansa had suffered a paralytic attack and was ailing.

NOW THE STAGE IS SET FOR DECIDING THE QUESTIONS OF LAW:-

(A) Whether the First Appellate