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1990 DIGILAW 535 (ALL)

Ram Sahai v. Laxmi Narain

1990-05-15

K.K.BIRLA

body1990
JUDGMENT K.K. Birla, J. - This is plaintiffs second appeal against the Judgement and decree dated Ist June, 1978 passed by the District Judge, Jalaun at Oral dismissing his appeal against the Judgement and decree dated 18-11-1972 passed by I temporary Civil and Session Judge, Orai. 2. In brief, according to the plaintiff Sri Laxmi Narain defendant/respondent was the owner of the Khandahar. He agreed to sell the same to Sri Ram Sahai plaintiff/appellant by agreement dated 18th June, 1971 for a consideration of Rs. 8,000/- out of which Rs. 1,000/- was paid byway of earnest money. According to the plaintiff, the possession of the Khandahar was also given to him. The defendant did not execute the sale-deed and s such the suit for specific performance of the agreement to sell and in the alternative for recovery of Rs. 1000/- together with the interest at the rate of 1% per annum and for Rs. 2,000/- by way of damages was filed. According to the defendant, the property was joint Hindu family property. He was not sole owner of the property in suit. He did not execute the alleged agreement nor received Rs. 1,000/- The plaintiff obtained his signatures on stamp paper while he was in a drunker state regarding which he gave the notice to the plaintiff on 21st June, 1971, 3. On the parties pleadings the necessary issues were framed. Besides the documentary evidence the plaintiff examined himself and Sri Radhey Shyam. The defendant examined himself. 4. The trial court found the execution of the agreement and passing of Rs. 1,000/- as earnest money correct. It further found the property to be the joint family property and as such the defendant had no right to sell the same to the plaintiff and the agreement could not be enforced, The learned trial Judge dismissed the suit as regards the specific performance of the agreement and the damages but decreed the suit for recovery of Rs. 1060/- The plaintiffs appeal was also dismissed. The first appellate Court agreed with the findings of the trial court. Both the Courts found that the plaintiff had not pleaded that the agreement was executed by the defendant as Karta or the joint Hindu family or that the same was for legal necessity or for the benefit of the Estate. The arguments on behalf of the plaintiff in this regard were not accepted. Both the Courts found that the plaintiff had not pleaded that the agreement was executed by the defendant as Karta or the joint Hindu family or that the same was for legal necessity or for the benefit of the Estate. The arguments on behalf of the plaintiff in this regard were not accepted. The learned first appellate Court after considering the evidence, was also of the opinion even if this aspect is considered, it has not been proved that the agreement was for legal necessity or for the benefit of the Estate. The Court below also found the agreement.to be uneforceable. Being aggrieved, the plaintiff has preferred this appeal. 5. I have heard the learned counsel for the parties and perused the record. 6. The concurrent findings of the Courts below that the property was joint Hindu family property has not been rightly assailed before me. The main crux of the argument of the learned counsel for the appellant is chat in any case the defendant/respondent was the Karta of the family which consisted of himself and bis minor sons, that the sale-deed was executed for the construction of the residential house and for business and as such it was for legal necessity and benefit of the Estate and that even if this case was not pleaded in the plaint, it should have been considered. It is contended that it was not necessary to make recital in the pleadings in this regard. In my opinion, this contention can not be accepted because the agreement to sell was executed in a personal capacity. No necessary ingredients proving the legal necessity of the benefit of the Estate are contained in the agreement. Apart from this, in the notice dated 21-6-1971 (Ex. A-4) it is clearly alleged that the defendant/respondent had no right to execute the sale deed because the disputed Khanda-har was ancestral. Ex. A-6 is the reply dated 24-6-1971 given through an Advocate. Even in reply to this notice in the case that the defendant/respondent was Karta of the joint Hindu family and the agreement was for legal necessity or for benefit of the Estate has not been taken. On the other hand, it is alleged that he (defendant/respondent) was competent to execute the sale-deed. Even in reply to this notice in the case that the defendant/respondent was Karta of the joint Hindu family and the agreement was for legal necessity or for benefit of the Estate has not been taken. On the other hand, it is alleged that he (defendant/respondent) was competent to execute the sale-deed. Therefore, it was too late for the plaintiff-appellant to contend that in spite of any pleading this aspect should have been taken into consideration by the Courts below. 7. Apart from this, in fact, the first appellate Court has considered this aspect as well and has found that the evidence on record was too insufficient to establish any legal necessity or benefit of Estate "for the proposed sale' m question. Hence too the sale agreement executed (if any) by the defendant as Manager of the joint family was illegal and invalid." In my opinion, this finding appears to be correct on the evidence on record. Therefore this contention on behalf of the appellant fails. 8. It was contended by the learned counsel for the appellant that the conduct of the respondent has been unfair which amounted to fraud and that no suit has been fried by the sons. This too will be of no help to the appellant in law make the agreement forceable which is otherwise unforceable in law. 9. The learned counsel for the appellant has relied on the case of Jagmohan Agrahari and another v. Prag Ahir and others, AIR 1925 page 618 and the case reported in AIR 1970 Supreme Court page 5 These case have no application to the facts of the present case. 10. It is contended on behalf of the appellant that executed sale-deed was not void and was only voidable at the instance of sons and as such the Lower Courts have erred in not granting the specific performance of the agreement. This contention too can not be accepted. Granting of relief in such cases is discretionary. If the executed it agreement was being so challenged on this ground. In the circumstances in any matter of the case, the courts below were justified in not granting the relief of specific performance of the contract and in granting alternative relief of the recovery of the amount advanced. 11. Granting of relief in such cases is discretionary. If the executed it agreement was being so challenged on this ground. In the circumstances in any matter of the case, the courts below were justified in not granting the relief of specific performance of the contract and in granting alternative relief of the recovery of the amount advanced. 11. it was next contended that the defendant/respondent had given possession of the disputed Khandahar to the plaintiff/appellant in pursuance of the agreement The Courts below had disagreed with this assertion and had not accepted the plaintiff's evidence on this point There appears no illegality in the concurrent findings of fact. Out of the consideration of Rs. 8,000/- only Rs. 1,000/- were paid by the plaintiff/appellant to the defendant/respondent This circumstance also does not favour the appellant's contention that the possession was delivered to him. Therefore, the appellant,s contention in this regard also fails The learned counsel for the appellant relied on the provisions of section 53-A of the Transfer of Property Act in support of the appellant,s case and also relied on the case of Sri Kakulam Subrhmanyam and another v. Kurra Subba Rao, reported in AIR 1948 privy Council page 95. In view of the above discussions this section is not at all attracted in the present case. Apart from this, as pointed out by the first appellate Court this section is a weapon of defence and not of an offence. 12. In view of the above discussions, the appeal his no force and deserves to be dismissed. However, the trial Court had granted Rs. 60/- by way of interest till the date of suit but did not grant any pendente lite and future interest. Considering the circumstance of the case the contention on behalf of the appellant that the interest should have been allowed by this court has force and I assess it at 9% per annum. 13. The appeal is dismissed with costs against the respondents. The Judgement and decree passed by the court below are confirmed. However, the plaintiff/appellant shall further be entitled to the pendente lite and future interest at the rate of 9% per annum.