Inder Sen Israni, J.
1. This is a civil second appeal under Section 100, C.P.C. filed against the judgment and decree dated 19-1-1977 passed by the learned District Judge, Jhunjhunu in Civil Appeal No. 38/73 setting aside the judgment and decree dated 31-7-1973 in Civil Suit No. 112/70.
2. Briefly stated the facts of the appeal are that the plaintiff respondent filed a suit for specific performance and cancellation of gift deed and also for obtaining possession of the suit properties bearing Khasra No. 554, 557, 560 and 561 situated in village Kishorepura Tehsil Neem-ka-thana. The suit was originally filed against Govinda and appellant No. 4 Jhabar. Govinda however died during the pendency of the suit and appellants Nos. 1 to 3 were substituted as legal representatives of deceased Govinda.
3. The case of the plaintiff respondent was that an agreement to sell agricultural land measuring 7 bighas 18 biswas bearing the aforesaid Khasra Nos. in village Kishorepura along with Quwadi situated in the said agricultural land, was entered between him and the defendant No. 1 deceased Govinda on 7-5-1967. Deceased Govinda was the Khatedar of the aforesaid agricultural land. The plaintiffs case further was that as per the agreement, he paid Rs. 6500/- to defendant deceased Govinda as part payment of the price of the land and remaining consideration of Rs. 1000/- was to be paid in the month of 'Ashadh Samwat 2025 at the time of execution of the sale deed and its registration. It was further alleged in the plaint that the deceased defendant Govinda instead of executing the sale deed in favour of the plaintiff gifted the suit properties to the defendant No. 4 Jhabar (appellant No. 4 in this appeal), who is his daughter's son. According to the plaintiff, defendant Govinda had no right to alienate the suit properties in view of the agreement executed between him and Govinda and in view of the part payment made by the plaintiff to deceased Govinda. He, therefore, prayed for decree for cancellation of gift deed, for specific performance of the contract entered into on 7-5-1967 and also for possession of the suit properties. In the alternative he prayed for a decree of Rs. 6500/- which were paid by him to the defendant Govinda, together with interest at the rate of 12% per annum. The defendants contested the suit. Defendant Govinda denied the alleged agreement and contended that he had every right to alienate the property through the gift deed. Some other legal objections regarding insufficiency of the court fee and jurisdiction were also taken in the written statement. Learned trialcourt framed 10 issues arising out of the pleadings and after recording evidence of both the parties, dismissed the plaintiffs suit vide its judgment dated 31-7-1973 holding that the defendants never executed the agreement (Ex. 1) on 7-5-1967 nor received Rs. 6500/- as part of consideration. The plaintiff respondent filed an appeal in the court of learned District Judge, Jhunjhunu, who reversed the finding on issue No. 1 regarding execution of agreement and receipt of Rs. 65007- from the plaintiff by deceased Govinda, holding that the execution of the agreement (Ex. 1) and receipt of Rs. 6500/- to the defendant Govinda by the plaintiff were proved on the evidence on record. Learned District Judge further did not think it proper to pass a decree for specific performance in favour of the plaintiff and decree for Rs. 6500/- was passed in favour of the plaintiff.
4. The appellants have filed this appeal on various grounds against the judgment and decree of learned District Judge and following two substantial questions of law were framedin this appeal:
(i)'Whether the decree for the recovery of Rs. 6500/- was wrongly passed personally against the appellants Nos. 1 to 3 as they were the legal representatives of the deceased Govinda;
(ii) Whether the decree for recovery of Rs. 6500/- was wrongly passed against appellant No. 4 Jhabar in asmuch as there was no such prayer in the plaint.
5. I have heard learned counsel for the parties and carefully gone through the record of the case.
6. Since this is a civil second appeal, this court will not go into the facts of the case and only legal points arising out of the matter as stated above will be considered. The First appellate court has held that in view of the statements of Bhura Mal (P.W. 2). Moola (P.W. 3), Bhagwana (P.W. 4), and Netram (P.W. 5) who are all attesting witnesses of agreement (Ex. 1), it is amply proved that deceased Govinda did execute this agreement and took Rs. 6500/- from plaintiff respondent Maida Ram. Learned counsel for the appellants has raised the question of law regarding making the appellants Nos. 1 to 3personally liable for payment of recovery of Rs. 6500/- as they were the legal representatives of deceased Govinda. It has been urged by the learned counsel for the appellants that since appellants Nos. 1 to 3 have not inherited any property from deceased Govinda, therefore, they are not liable to make any payment under the decree passed by the first appellate court. This plea of not having inherited any property left by deceased Govinda has not been mentionedin the pleadings before the trial court by the appellants Nos. 1 to 3. Therefore, the appellants cannot take this plea for the first time now in the second appeal. Learned counsel for the appellants has placed relianceon and the appellants Nos. 1 to 3 can always take this plea in the execution proceedings regarding not having inherited any property from deceased Govinda.
7. The second substantial question of law involved in this case is whether the amount of decree could have been passed against appellant No. 4 Jhabar in as much as there was no prayer in the plaint regarding the same. In the plaint the plaintiff has made several prayers including that the registration of the sale of the land be made in favour of the plaintiff and he should be given possession and the possession of the land be taken from the defendants and be given to the plaintiff. The plaintiff has also made a prayer that the gift deed executed by deceased Govinda in favour Of Jhabar appellant No. 4 in this appeal be declared to be illegal and ineffective. When the suit was fifed in the trial court, deceased Govinda was also alive and the suit was filed against him as well as Jhabar, appellant No. 4 in this appeal. The prayers as made in the plaint were quite natural at the appropriate time since apart from declaring the gift deed to be illegal and ineffective and giving possession of the land from the defendants to the plaintiffs, an alternate prayer regarding recovery of the amount to be paid to deceased Govinda along with interest was also made and this prayer was not necessary to have been made against Jhabar also. After the proceedings in the trial court came to an end, Govinda died and his legal representatives were brought on record in the proceedings in the first appellate court.
8. Learned counsel for the appellant hasurged that the first appellate court rightly made Jhabar appellant No. 4 in this appeal to be responsible for payment of decretal amount because the court due to passage of time did not think it proper to set aside the gift deed and get possession of the land to the plaintiff respondent but passed only decree for the amount paid by the plaintiff to the deceased Govinda along with interest. He has further argued that charge on the property gifted to Jhabar appellant No. 4 in this appeal be created to the extent of decretal amount. In this respect he has drawn my attention to the provisions of Section 55(6)(b) of the Transfer of Property Act.
9. Section 55 of the Transfer of Property Act deals with rights and liability of buyer and seller and Sub-clause (b) of Sub-section (6) while dealing with the rights of buyer lays down that 'unless he has improperly declined to accept delivery of the property, to a charge on the property, as against the seller and all persons claiming under him, to the extent of the seller's interest in the property, for the amount of any purchase-money properly paid by buyer in anticipation of the delivery and for interest on such amount; and, when he properly declines to accept the delivery, also for the earnest (if any) and for the costs (if any) awarded to him of a suit to compel specific performance of the contract or to obtain a decree for its rescission'.
10. Thus, it is clear from the above provision that the law has clearly laid down that unless the buyer improperly declines to accept the delivery of the property the amount of purchase money paid to the buyer in anticipation of the delivery and for interest on such amount shall remain as a charge on the property as against the seller all persons claiming under him. In the present case the respondent buyer was ready and willing to perform his part of the contract, but deceased Govinda after executing the agreement to sell on 7-5-1967 and taking the amount of Rs. 6500/- as advance purchase money from the respondent got the gift deed registered on 8-6-1967 in favour of Jhabar, who happens to be son of his daughter. In the terms of the agreement dated 7-5-1967 it has been clearly mentioned that Parcha Khatedari is in the name of deceased Govinda, who has full rights to sell the same and it has further beenmentioned that from now the purchaser shall be the owner of the land and shall have all rights over the land from the day of agreement which the seller had and the seller shall have nothing to do with the same. In Clause (2) of the said agreement it is further laid down that Rs. 1000/- shall be paid by the buyer to the seller at the time of registration which was to be done in the month of 'Ashadh Samwat 2025'. It is further laid down in Clause (3) of the said agreement that if the seller does not get the sale deed registered within the stipulated time, the purchaser shall have right to get the agreement executed and registration made through the court of law. In Clause (5) it has been clearly stated that any action taken against the terms and conditions of this agreement shall be ineffective as far as the agreement was concerned. It is absolutely clear from the terms of the agreement stated above that deceased Govinda had no right to execute the gift deed of the land under sale agreement in favour of Jhabar (appellant No. 4 in this appeal).
11. Learned counsel for the appellants has also urged that he had made prayer in his cross objections that the respondent should not be given possession of the land as he was always willing to pay the balance amount of Rs. 1000/- as stipulated in the agreement. Learned counsel for the appellants frankly accepts that appellants Nos. 1 to 3 are liable for payment of the decretal amount only to the extent of property inherited by them. Learned counsel for the appellants has argued that no charge should be created on the properties as this prayer had not been made either in the trial court or in the first appellate court. In view of the provisions of Section 55(6)(b) of the Transfer of Property Act, there is no question of creating any special charge on the property as the provisions of the Transfer of Property Act will automatically apply in this case and- the law will take its own course.
12. In view of the above facts and circumstances I am of the view that Jhabar, appellant No. 4 in this appeal has been rightly made liable for payment of the decretal amount. This appeal is, therefore, dismissed with costs.