JUDGMENT

Hon'ble Ravindra Maithani, J.

The instant first appeal is preferred against the judgment and decree dated 19.12.1988, passed in Original Suit No. 559 of 1984, Shri Om Prakash Kohli Vs. Smt.Shakuntala Rani and another, by the court of Second Additional District Judge, Dehradun (for short “the Suit"). By this judgment and decree, the suit was decreed and defendant Smt. Shakuntala Rani was directed to execute the sale deed of the property in dispute. The defendants in the Suit had initially filed the instant appeal. During the pendency of the appeal, both of them died and the appeal is continued by the appellant Bhawna Sharma.

FACTS

2. Facts necessary to decide the appeal, briefly stated, are as hereunder:-

The respondent had filed a suit for specific performance. According to it, Late Shri Babu Ram Babbar executed an agreement to sale in favour of the respondent on 05.12.1973 (“ the first agreement"), whereby he agreed to execute the sale deed of the property on or before 04.12.1978. The total sale consideration was agreed at Rs.45,000/-. Out of which, Rs.30,000/- in cash was paid to Late Shri Babu Ram Babbar, as an advance and remaining sale consideration was to be paid at the time of registration of the sale deed. The sale deed could not be executed and in the intervening night of 12.02.1978/13.02.1978, Shri Babu Ram Babbar died. Smt. Shakuntala Rani, who was wife of Late Shri Babu Ram Babbar thereafter, on 13.02.1978 executed an agreement (“the second agreement") with the respondent, whereby she ratified the first agreement and further agreed to execute the sale deed on or before 05.12.1984. The respondent gave notices requiring Smt. Shakuntala Rani to execute the sale deed, but she did not execute it. Thereafter, the suit was filed. Originally, the suit was filed against Smt. Shakuntala Rani only, the widow of the Late Shri Babu Ram Babbar. She filed written statement and denied all the allegations. According to Smt. Shakuntala Rani, Late Shri Babu Ram Babbar did not execute the first agreement and he did not receive any money and even the respondent did not have enough money to pay Rs.30,000/- in the year 1973. The second agreement has also been denied, inter alia, on the ground that since the husband of Smt. Shakuntala Rani died in the intervening night of 12.02.1978/13.02.1978, on 13.02.1978, a large number of people visited her house, therefore, she was even not in such a state of mind to execute any agreement. Smt. Shakuntala Rani took a stand that she had a living son Pawan Babbar, who was owner of half of the property, but he is not the party. Therefore, without him the agreement could not have been executed.

3. Subsequent to it, the plaint was amended by the respondent and while denying that Pawan Babbar is the sone of Late Shri Babu Ram Babbar, to avoid further litigation, Pawan Babbar was also made party and according to the amended plaint, since Pawan Babbar was minor at the time of second agreement, Smt. Shakuntala Rani was his natural guardian and Pawan Babbar is also bound by the second agreement.

4. Based on the pleadings of the parties, the following issues were framed in the suit:-

(1) Whether there was an agreement dated 5.12.73 between the plaintiff and the deceased Babu Ram Babbar to sell the property in dispute for Rs.45,000/- and whether the said Babu Ram Babbar has received Rs.30,000/-?

(2) Whether the deceased Babu Ram Babbar had a right to execute the agreement to sell in respect of the property in dispute? If so, its effect?

(3) Whether on 13.2.78 the plaintiff and the defendant no.1 extended the period of execution of the sale deed upto 5.12.83 by ratifying the agreement to sell dated 5.12.1973? If so, its effect?

(4) Whether the plaintiff has a right to sue?

(5) Whether the defendant no.2 is the son of the deceased Babu Ram Babbar and whether the agreement dated 5.12.1973 and 13.2.78 are binding on him?

(6) Whether the suit is within time?

(7) Whether the plaintiff is entitled to claim spec