Deoki Nandan, J. - (1.)This is a plaintiff's second appeal in a suit for specific performance of an agreement to sell the house. The shop originally belonged to the plaintiffs. They sold the shop to Iqbal Ahmad on 29th November, 1954 but by an agreement executed the same day Iqbal Ahmad agreed to reconvey the shop to them within a period of 2 years. Iqbal Ahmad died before the 2 years period was completed and on 5th November, 1957 there was a novation of the contract between the plaintiffs and defendants Nos. 1 to 3, the two sons and widow of Iqbal Ahmad, extending the time for purchase of the shop by the plaintiffs by a further period of two years. There was again a further novation of the contract on 4th November, 1959 by defendants Nos. 1 to 3 extending the time for purchase by another 2 years. It was the. plaintiffs case that the said defendants Nos. 1 to 3 had agreed to extend the time on both these occasions on their own behalf as well as on behalf of defendants Nos. 4 to 7, of whom defendants Nos. 4 to 6 are the daughters of Iqbal Ahmad, and defendant No. 7 is the husband of one of Iqbal Ahmad's daughter.
(2.)The suit was contested only by defendants Nos. 1 and 2, The other defendants did not, however, admit the plaintiffs claim nor did they deny it. The trial court decreed the suit but on appeal by defendants Nos. 1, 2 and 3 only, the lower appellate court has set aside the decree of the trial court, on the finding that defendants Nos. 1 to 3 were not authorised by the daughters of Iqbal Ahmad to sell their share of the property and they could not have accordingly executed the agreement? dated 5th November, 1957 and 4th November, 1959 extending the time for execution of the agreement. The contention raised on behalf of the plaintiffs before the lower appellate court that in any case defendants Nos. 1 to 3 having agreed to extend the time they were bound to sell the property of the extent of their share was negatived by the lower appellate court on the finding that they could not be compelled to do so unless the entire amount of the consideration agreed to be paid for the whole property was paid to them.
(3.)I did not have the advantage of hearing the learned counsel for the defendant-respondents who have chosen not to appear in this court. Having heard Mr. K. B. L. Gaur, learned counsel for the appellants, I am satisfied that this appeal must succeed. This is not a case where defendants Nos. 1 to 3 may have agreed for the first time to sell the property to the plaintiffs. The agreement to sell the property was already there having been executed by Iqbal Ahmad, the predecessor-in-interest of the defendant-respondents. His authority to sell the property could not be questioned, The agreement could have been enforced by the plaintiffs against the defendant respondents even if they were unwilling to perform their part. It is well settled that time is not of the essence of an agreement to sell immovable property. All that was done by defendants Nos. 1 to 3 who are the sons and widow of Iqbal Ahmad and would thus appear to have been the persons in possession of the property and in management of it, was to agree to extend the period, or the last date of performances of the agreement. Even if they had not agreed to do so and even if they had refused to execute the sale-deed, the plaintiffs would have been entitled to sue them within three years from 29th November, 1957 which was the date on which the period of 3 years originally fixed by the agreement dated 29th November, 1954 expired. It has further to be noticed that defendant-respondents Nos. 4 to 7 never objected to the plaintiffs claim. They did not file any written statement nor did they appear at the trial. So far as defendants Nos. 1 to 3 were concerned they were certainly bound by their own act, and it could not, therefore, be said under these circumstances that any of the defendant-respondents could have lawfully objected to the enforcement of the agreement against them. The appeal succeeds and is allowed, The suit is decreed for specific performance of the agreement to sell the shop in dispute in favour of the plaintiff-appellants, The plaintiff-appellants shall be entitled to their costs of the two courts below but they shall bear their own costs of the appeal in this courts.