1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT NAGPUR, NAGPUR.
SECOND APPEAL NO: 29 / 1998
Smt.Mumtajbi wd/o Sheikh Amir
Aged about 50 years, occu: Household
affairs R/o Bhaldarpura, Near Badi Masjid
Nagpur 18.. ... ...APPELLANT
v e r s u s
Rahimtulla s/o Sheikh Rasul
Aged about 67 years, occu: Cultivator
R/o Bhaldapura Near Badi Masjid
Nagpur-18. (Dead: Through LRs)
1) Shri Sheikh Babbu s/o Rahimtulla
Aged about major, occu: Pvt. Business
2) Shri Abdulla s/o Rahimtulla
Aged about major, occu: Private Business
3) Shri Gaffar s/o Rahimtulla
Aged about major, occu: Private Business
4) Shri Ayub s/o Rahimtulla
Aged about major, occu: Pvt. Business
All R/o Bhaldapura Near Badi Masjid
Nagpur-18. ...RESPONDENTS
............................................................................................................................
Mr S.D.Deshpande, Advocate for appellant
Mr. Masood Shareef, Advocate for LRs 1 to 4
------------------------------------------------------------------------------------------------------------
CORAM: A.P.BHANGALE, J.
DATED : 7th July, 2010
JUDGMENT :
::: Downloaded on – 09/06/2013 16:06:53 :::
2
This Second Appeal is filed by the original defendant in
Regular Civil Suit No.1646 /1989 which was dismissed by learned 20th
Joint Civil Judge, Junior Division, Nagpur on 10.2.1994. The said suit
which was for specific performance of contract was dismissed by the
trial Court. The unsuccessful plaintiff had challenged dismissal of suit
by filing Regular Civil Appeal No. 202/1994 which was heard and
decided by learned 8th Additional District Judge, Nagpur who, by
impugned judgment and order allowed the appeal and decreed the suit
by setting aside the judgment and order by the trial Court.
2. The appeal was admitted on substantial question of law as to
whether the first Appellate Court committed an error in holding that the
agreement dated 15.8.1986 has been duly proved.
3. It is submitted in support of the appeal that the respsondent
Rahimatullah had committed murder of the appellant’s husband and
for that offence he was sentenced to suffer imprisonment for life.
Under the circumstances, it was highly impossible on the part of the
appellant to enter into an agreement to sell her house to a murderer
of her husband. It is also submitted that the appellant being a
purdanashin Muslim woman, there was no possibility of talk and privity
of contract between her and deceased respondent-Rahimatullah as no
unlettered Muslim lady will come in public to enter into an agreement
::: Downloaded on – 09/06/2013 16:06:53 :::
3
as alleged, and written in English.
4. As against these submissions, learned counsel for
respondents submitted that the plaintiff had led evidence of himself and
attesting witnesses to prove the case and that the defendant did not
depose in rebuttal. It is further submitted that her admission in Exh.18
was binding upon her to enforce specific performance of agreement in
favour of legal representatives of deceased respondent. Learned
counsel, thus, supported the impugned judgment and order.
5. Heard the aforementioned submissions with reference to
evidence on record and substantial question of law raised. Perused the
judgment and orders passed by the Courts below.
6. The trial Court which had advantage to see witnesses
deposing before it, had dismissed the suit. It is pertinent to note that
Mumtajbi was not present when suit agreement is said to have been
executed. It was, therefore, impossible to believe that the plaintiff had
paid earnest money of Rs. 4000/- to the defendant. The version of the
plaintiff that he had talk with defendant in Masjid where about 100 to
150 persons were present, is highly improbable. Muslim lady
observing Muslim religious practice, would not visit a mosque and
that too for knowingly executing Isarpatra ( agreement to sell) pre-
drafted in English. The learned trial Judge had examined all the facts
::: Downloaded on – 09/06/2013 16:06:53 :::
4
and circumstances minutely and correctly concluded that the
defendant (appellant herein) had not agreed to execute sale deed dated
10.11.1986, as alleged. No reliable and cogent evidence was found to
believe the case of the plaintiff. Hence the plaintiff was refused relief
of specific performance. The first Appellate Court ought not to have
interfered with well-reasoned judgment and order passed by the trial
Court. In the facts and circumstances of the case, there was no
justification to interfere with the dismissal of the suit. Under the
circumstances, a poor uneducated Muslim woman observing religious
practices, such as, Purdah cannot be easily imputed with knowledge of
an agreement to sell, which was drafted in English. Even otherwise,
specific relief is not granted as a matter of course. It is a discretionary
relief to be exercised in objective manner examining the bona fides and
conduct of the plaintiff in a suit for relief. It is in evidence that the
plaintiff had murdered husband of the defendant and he was
sentenced to life imprisonment. Discretionary relief could not have
been granted in his favour without cogent and reliable evidence about
the alleged agreement to sell house and without apparent privity
between the parties. For all these reasons, it must be concluded that
Appellate Court erred in setting aside the decree passed by the trial
Court. Hence, the substantial question of law must be answered in
::: Downloaded on – 09/06/2013 16:06:53 :::
5
favour of the appellant. It is answered accordingly.
7. In the result, Appeal is allowed. Impugned judgment and
order dated 3rd November, 1997 passed by learned 8th Additional
District Judge Nagpur in RCA No.202/1994 is set aside and the
judgment and order passed in Regular Civil Suit No.1646/1989 by the
20th Joint Civil Judge Junior Division, Nagpur, dismissing the suit is
restored. The Appeal is disposed of accordingly. No order as to costs.
JUDGE
sahare
::: Downloaded on – 09/06/2013 16:06:53 :::