FIRST APPEAL No. 19 OF 2009
Against the judgment and decree dated 22.12.2008(decree signed on
13.01.2009) passed by Sri Nagendra Prasad Tripathi, Civil Judge(Sr.
Division) Ist, Buxar in Title Suit No.85 of 2004.
MOSTT. PRABHAWATI DEVI .......... Defendant-Appellant
Versus
RAM PRAVESH SINGH ......... Plaintiff-Respondent
********
For the Appellant : Mr. Gauri Shanker Prasad, Advocate
Mr. Rajendra Nath Sinha, Advocate
Mr. Shivam, Advocate
For the Respondent : None
Dated : 13th day of May, 2011
PRESENT
THE HON'BLE MR. JUSTICE MUNGESHWAR SAHOO
JUDGMENT
Mungeshwar
1. The defendant has filed this First Appeal against the Judgment
Sahoo, J.
and decree dated 22.12.2008 passed by Sri Nagendra Prasad Tripathi, the
learned Civil Judge (Sr. Division) Ist, Buxar in Title Suit No.85 of 2004
decreeing the plaintiff-respondent suit for specific performance.
2. The plaintiff-respondent Ram Pravesh Singh filed aforesaid title Suit
No.85 of 2004 for specific performance of contract dated 05.05.2001 alleging
that the defendant and her husband had purchased Schedule I property in the
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name of the defendant and her minor Son Govind Thakur. The defendant
appellant was the guardian of her minor son, Govind Thakur. She herself and
being the guardian of minor son agreed to sale Schedule I land of the plaint for
Rs.4,50,000/- in presence of her husband Sheojee Thakur and other witnesses.
Earnest money of Rs.4 lacs was paid immediately and on 05.05.2001, she
executed a Mahadnama in favour of the plaintiff after receiving earnest money
of Rs.4 lacs. The defendant-appellant put her signature and endorsed
regarding receiving of the said earnest money. The defendant promised to
execute sale deed within 02.05.2004 after receiving balance amount of
Rs.50,000/-. The plaintiff along with witnesses several times approached the
defendant and tendered the balance consideration of Rs.50,000/- and
requested to execute sale deed but she avoided to execute the sale deed.
Lastly, on 02.04.2004, the plaintiff sent a registered legal notice to the
defendant but no sale deed was executed. The plaintiff was always ready and
willing and is still ready and willing to perform his part of the contract. Hence,
the plaintiff filed the suit for specific performance of contract.
3. On being noticed, the defendant-appellant appeared and filed
contesting written statement. The main defence of the appellant is that no
such contract was executed on 05.05.2001 and no earnest money was paid to
her. Her husband, Sheojee Thakur was drunkard and he died in the year 2002
leaving behind the widow and her two sons, Govind Thakur aged about 10
years and Chhotu Thakur aged about 3 years and daughter, Meena Kumari
aged about 13 years. The defendant is helpless lady and, therefore, the
alleged deed of agreement was prepared and fabricated in collusion with the
scribe and the witnesses.
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4. In view of the above pleadings of the parties, the following issues
were framed by the learned Court below :
I. Is the suit as framed maintainable? II. Has the plaintiff got valid cause of action for the suit?
III. Whether the Mahadnama deed dated 05.05.2001 is genuine and
executed by the defendant?
IV. Is the plaintiff ready and willing to perform his part of contract?
V. Is the plaintiff entitled for a decree as sought for? VI. To what other relief or reliefs the plaintiff is entitled?
5. After trial, the learned Court below held that the defendant has
failed to prove that the Mahadnama dated 05.05.2001 is forged and fabricated.
The plaintiff is always ready and willing to perform his part of the contract and
accordingly, the plaintiff‟s suit was decreed.
6. Mr. Gauri Shanker Prasad, the learned counsel appearing on
behalf of the appellant submitted that the appellant is not the owner of the
entire suit property. The registered deed stands in the name of her minor son
and mother is never the guardian of minor son during life time of father. There
was no agreement to sell the property of the minor son also nor the agreement
was executed on behalf of the minor son but in the plaint, the property of the
minor has also been included. According to the learned counsel, only 2 katha
land is in the name of appellant whereon house has been constructed and the
helpless lady is residing in the said house with her children, therefore, if specific
performance of contract is directed, it will cause great hardship to the
appellant. The learned counsel for the appellant submitted that the plaintiff-
respondent taking advantage of the simplicity, ignorant appellant and her
drunkard husband got executed the alleged Mahadnama with respect to the
entire property of the appellant and moreover, she is not the owner of the
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entire property and she has no authority to transfer the property of her minor
son as she is legally not guardian of the minor son. According to the learned
counsel, the learned Court below has not considered these aspects of the
matter. The learned counsel further submitted that the plaintiff never paid Rs.
4 lacs as earnest money. There are overwhelming evidences in support of the
said fact but the learned Court below has wrongly found that earnest money of
Rs. 4 lacs was paid. The learned counsel further submitted that the whole
agreement is inseparable and major part of the property described in the plaint
belonged to the minor son purchased by his father in the name of minor son.
Out of 15 katha total suit property, the property in the name of defendant-
appellant is only 2 katha whereon house is standing. In view of the above
facts, the plaintiff is not entitled to enforce the alleged contract for specific
performance. On these grounds, the learned counsel submitted that the
impugned Judgment and decree are liable to be set aside.
7. Nobody appears on behalf of the respondent.
8. It may be mentioned here that a review application was also heard
along with this First Appeal being Civil Review No.87 of 2010 filed by the
present appellant. In that case, the respondent of this First Appeal appeared
through learned counsel, Mr. Nawal Kishore Prasad. The learned counsel
submitted that he has no instruction to appear in this First Appeal. No other
counsel appeared as stated above on behalf of the respondent.
9. In view of the above facts and circumstances of the case, the points
arise for consideration in this Appeal is as to “whether the plaintiff is entitled for
specific performance of contract dated 05.05.2001” and “whether the impugned
Judgment and Decree are sustainable in the eye of law?”
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10. According to the plaint, the suit was filed by the plaintiff in the
representative capacity. The defendant-appellant was also made party as
representative of her family alleging that she is karta of her family. Further
alleged that she along with her husband purchased the suit property in the
name of their minor son, Govind Thakur. The appellant as guardian of minor
son, Govind Thakur executed the said Mahadnama on 05.05.2001 on receiving
Rs.4 lacs as earnest money. On the contrary, according to the written
statement, no such agreement was executed on 05.05.2001 nor she ever
agreed to sell the suit property nor she ever received any earnest money.
11. In support of their respective cases, the parties have adduced oral
as well as documentary evidences. P.W.1 is the plaintiff himself. He has stated
that Prabhawati Devi as owner had agreed to sell the property purchased in the
name of her son, Govind Thakur in presence of her husband, Sheojee Thakur
on 05.05.2001. Husband of the appellant died in 2002.
12. From the above pleadings and evidences of the plaintiff, it is clear
that the property is standing in the name of minor son of the appellant,
namely, Govind Thakur. On the date of execution of the alleged agreement,
husband of the appellant, namely, Sheojee Thakur was alive. Therefore, on the
date of execution of the alleged Mahadnama neither Prabhawati Devi was
guardian of her son, Govind Thakur nor she was the karta of the family in the
eye of law. Although, at paragraph 1 of the plaint, it is stated that the
defendant has been made party in the representative capacity, no such
permission has been obtained from the Court as provided under Order 1 Rule 8
C.P.C.
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13. Ext. „1‟ is the alleged Mahadnama dated 05.05.2001. From perusal
of the said Mahadnama, it is clear that it has been executed by Prabhawati Devi
only. Therefore, it is wrong to say that she for self and on behalf of the minor
son, Govind Thakur entered into agreement to sell the suit property. As stated
above, on the date of alleged Mahadnama, her husband was alive. In such
circumstances, she had no authority to enter into in respect to the property of
minor, Govind Thakur. The plaintiff knowing fully the fact and law that during
life time of father, mother cannot be the guardian of minor son nor she can be
the karta of the family entered into agreement. This question, i.e., whether
Prabhawati Devi had the authority to enter into agreement to sell the property
of minor son during life time of father is pure question of law and evidence is
not required to be gone into. The document, Ext. 1 itself speaks that the
agreement was entered into by Prabhawati Devi only.
14. The sale deeds have been produced by the defendant-appellant
with regard to the suit property which have been marked as Ext. „B‟, „B1‟ and
„B2‟. From perusal of the said Exts. i.e., the sale deeds, it is clear that out of
the suit property measuring 15 katha only 2 katha stands in the name of
Prabhawati Devi. So far the case of the plaintiff that the appellant and her
husband had purchased the suit property in the name of Govind Thakur is
concerned, it is immaterial. Govind Thakur has not joined as executant in the
Mahadnama. So far 2 katha land standing in the name of Prabhawati Devi is
concerned, it is the case of the appellant that house has been constructed
thereon and she is residing with her children. This fact is not denied by the
plaintiff rather in the evidence P.W.1 admitted that Prabhawati Devi is residing
in that house. Moreover, this 2 katha is very small part of the total area
described in Ext. „1‟, the Mahadnama.
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15. So far readiness and willingness is concerned, at paragraph 8, the
plaintiff has clearly stated that he was ready and willing and is still ready and
willing to perform his part of contract. The witnesses examined on behalf of
appellant i.e., P.W.2, 3, 5, 9 and P.W.11 all have stated that the plaintiff P.W.1
tendered the balance consideration amount to the appellant and requested her
to execute sale deed but she avoided. P.W.1 the plaintiff himself also has fully
supported his case of readiness and willingness. Ext. „2‟ is the legal notice
which was sent by the plaintiff prior to institution of the suit. The witnesses
have stated that at the time of execution of Mahadnama, 4 lacs was paid as
earnest money. These witnesses have stated that the plaintiff tendered the
remaining Rs.50,000/- to the defendant. Further, the plaintiff has filed Ext. „5‟
series the registered sale deed to prove his ability to purchase the land. From
perusal of the sale deeds, it appears that he has purchased other land also. In
view of the above facts and circumstances of the case and the evidences, it
appears that the plaintiff was ready and willing and is still ready and willing to
perform his part of the contract. However, we have seen above that the
contract itself cannot be enforced in favour of the plaintiff. No doubt, the
ordinary rule is that specific performance should be granted and it ought to be
denied only when equitable consideration point to its refusal. We have
discussed the circumstances in the preceding paragraphs. It appears that
because of the fact that substantial part of the suit land belong to the minor
and the appellant is neither guardian nor has the authority to execute sale deed
regarding the property of a minor, the performance of contract of sale has
become now unlawful. Even if it is held that the owner was father of minor
then also, admittedly, the father of the minor son died and on his death
subsequent to the agreement in the year 2002, naturally the minor son will
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inherit land and will be owner of the property. The mother has no authority to
sell the property of minor and moreover, she has not entered into contract on
behalf of the minor. In such circumstances, in my opinion, the plaintiff is not
entitled to seek specific performance of the agreement dated 05.05.2001, Ext.
„1‟.
16. So far the property of appellant is concerned, she is the owner of
only 2 katha land wherein she is residing with the minor children. As stated
above, this 2 katha forms a small part of the suit property. The property which
stands in the name of son of the appellant forms a considerable part of the suit
property and the appellant is not entitled to sell the same. In such view of the
matter, if the appellant is directed to execute the sale deed with respect to her
property, i.e., 2 katha whereon house is constructed and she is residing with
her children, it would cause serious hardship to the appellant whereas on the
contrary, no hardship will be caused to the plaintiff-respondent. In view of this
fact also, the plaintiff is not entitled for a decree for specific performance of
contract.
17. From the pleading and evidence of the plaintiff, it appears that the
plaintiff knowing fully all these facts entered into the agreement with the
defendant-appellant alone. Even the husband of the appellant is not executant
or is a party to the agreement. The properties of the minor are also described
in the agreement. The facts stated in the plaint and in the written statement to
the effect that the husband was drunkard and the appellant is helpless lady
shows that plaintiff with a view to gain unfair advantage entered into the
agreement. For this reason also, the plaintiff is not entitled for the relief for
specific performance of contract.
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18. So far alternative relief is concerned, the plaintiff‟s case is that he
has paid Rs.4 lacs as earnest money. According to the defendant, she had
never received the said amount.
19. To prove this fact, plaintiff has examined himself and other
witnesses. In his cross-examination, the plaintiff has explained that out of his
pocket, he paid Rs.2,90,000 and rest amount of Rs.1,10,000 has been paid
from his Bank account. The plaintiff also proved Exhibit-4, his passbook. From
perusal of which, it appears that on 05.05.2001, he had withdrawn Rs.1,10,000
from his passbook. P.W.4 is the scribe of Exhibit-1 who has also stated that in
his presence, Rs.4 lacs was paid by the plaintiff to the defendant. The
defendant had pleaded that the Mahadnama is forged and fabricated. It
appears that because of this pleading, the plaintiff prayed for comparison of her
signature appearing on the Mahadnama with her admitted signature. Her
signature was obtained in presence of both the Advocates and the handwriting
experts examined the signature and report is Exhibit-8. P.W.14, the
handwriting expert has stated that she found the handwriting on the
Mahadnama is of the defendant-appellant. P.W.13 is the photographer who
took the photographs of the disputed handwriting on Mahadnama.
20. Considering the above facts and circumstances of the case, I find
that the plaintiff had paid Rs.4 lacs as earnest money to the appellant on the
date of execution of the Mahadnama, Exhibit-1. Therefore, the plaintiff is
entitled for the alternative relief prayed for by him. From perusal of the
impugned judgment, it appears that the learned Court below has not examined
all these aspect of the matter and granted decree for specific performance of
contract. In my opinion, therefore, that part of the judgment and decree is
liable to be set aside. I ultimately come to the conclusion that the plaintiff is
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not entitled for the specific performance of contract, Exhibit-1. I also find that
plaintiff is entitled to a decree for recovery of Rs.4 lacs with simple interest at
the rate of 6% per annum from the date of institution of the suit.
21. In the result, this First Appeal is allowed in part. However, the
impugned judgment and decree are modified to the extent that the plaintiff‟s
suit is decreed so far it relates to the alternative relief for recovery of the
earnest money as indicated above only. So far the prayer for specific
performance of contract i.e. relief no.1 of plaint is concerned, it is hereby
dismissed. The interim order passed in the appeals if any, is vacated. There
shall be no order as to costs.
(Mungeshwar Sahoo, J.)
Patna High Court, Patna
The 13th May, 2011
Saurabh/N.A.F.R.