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2011 DIGILAW 1279 (MP)

Rajendra Singh v. Mahila Chandrabai

2011-11-11

A.K.SHRIVASTAVA

body2011
Judgment ( 1. ) THIS second appeal has been filed by the defendant No. 3 Rajendra Singh against the judgment and decree passed against him by learned First Appellate Court decreeing the suit of the plaintiff (respondent No.1) against him also. ( 2. ) LOOKING to the substantial questions of law which are framed, the facts necessary for the disposal of this second appeal lie in a narrow compass. Suffice it to say that a suit for realization of Rs. 2000/- has been filed by the plaintiff Chandra Bai (who died during the pendency of the suit and her LR Dinesh Chandra was brought on record) against the defendants and in the alternative for the cancellation of the registered sale-deed dated 14-12-1976 executed by plaintiff in favour of first defendant under the guardianship of his father i.e. the second defendant and possession be also delivered to her from first and second defendants and also for damages to the tune of Rs. 1000/-. According to the plaint averments, the plaintiff was the Bhumiswami of the suit property, the description whereof has been mentioned in the plaint and was also possessing it. The suit land was sold by her to second defendant, who got it registered in the name of his minor son (first defendant) on 14-12-1976. The draft of sale-deed which was executed by her was prepared by third defendant who is an Advocate. According to her, the sale consideration Rs. 2,000/- was fixed between her and defendant No. 2. After the execution of sale-deed, the suit property is being possessed by first and second defendants. ( 3. ) IT has been further pleaded by the plaintiff that although the factum of passing the consideration has been mentioned in the sale-deed but it was rest assured and promised by the second defendant that after the execution of the sale-deed, immediately he will pay the consideration amount Rs. 2000/- to her. The third defendant (appellant herein) also promised and rest assured the plaintiff that sale consideration would be paid by the second defendant to her and he (third defendant) too had to realize his fees from the second defendant. On the promise being made by second and third defendants and on their assurance, plaintiff signed the sale-deed and executed the same in favour of first defendant who is minor son of second defendant. On the promise being made by second and third defendants and on their assurance, plaintiff signed the sale-deed and executed the same in favour of first defendant who is minor son of second defendant. However, after the sale-deed was executed and registered, the defendants did not pay the consideration amount and first and second defendants are also possessing the suit property and therefore she is entitled for consideration amount of Rs. 2000/- as well as Rs. 1000/- towards damages. In the alternative, it has been prayed that the said registered sale-deed be cancelled and possession of land in question be delivered to her. ( 4. ) THE first defendant was minor and therefore learned trial Court appointed guardian ad litem for him who filed the written statement on his behalf. Second and third defendants filed a joint written statement and denied the plaint averments and prayed that suit be dismissed. Learned trial Court framed necessary issues and after recording the evidence of the parties dismissed the suit. ( 5. ) THE plaintiff assailed the judgment and decree of learned trial Court by filing first appeal before learned First Appellate Court who allowed it in part and passed a money decree against the defendants by further passing a decree that in case from the date of judgment passed by it, if the decretal amount is not paid to the plaintiff, the sale-deed dated 14-12-1976 executed by her in favour of first and second defendants shall be deemed to be set aside and plaintiff shall be entitled to get the possession back of the suit property. Learned First Appellate Court also passed a decree against the defendants for damages in terms of Para 23(d) of its judgment. ( 6. ) IN this manner this second appeal has been filed by the third defendant assailing the impugned judgment and decree passed against him by learned First Appellate Court, which was admitted on 4-7-2002 on the following substantial questions of law :- "1. Whether the lower Appellate Court was justified in passing a decree against the appellant (defendant No. 3) but was not a party to the transaction but only acted as a Lawyer for and on behalf of one of the parties? 2. Whether the lower Appellate Court was justified in passing a decree against the appellant (defendant No. 3) but was not a party to the transaction but only acted as a Lawyer for and on behalf of one of the parties? 2. Whether the decree/observations made by the lower Appellate Court against the appellant are factually and legally sustainable and secondly, whether they are necessary for deciding the Lis between the parties?" I have heard Shri Gwaliory, learned counsel for the appellant. None has appeared on behalf of respondents No. 1 to 3 though they have been served. Having heard learned counsel for the appellant and after perusing the record, I am of the view that this appeal deserves to be allowed. Regarding substantial question of law No. 1:- ( 7. ) ON bare perusal of the plaint it is gathered that third defendant- appellant who is a lawyer promised and rest assured the plaintiff that sale price would be paid to her by the second defendant and on the promise made by third defendant-appellant, she put her signature on the sale-deed and executed the same in favour of first defendant (minor son of second defendant). However, the sale consideration was never passed to her by first and second defendants and therefore third defendant is also jointly and severally liable to pay the sale consideration to her. Although, the averments of the plaintiff against third defendant-appellant has been denied by him in the joint written statement filed by him along with the second defendant, but, learned First Appellate Court in the impugned judgment found that it has been proved by the plaintiff that third defendant promised her to pay the sale consideration in case the second defendant (father of minor defendant No. 1) fails to pay the amount of consideration to her. A pure finding of fact has been recorded by learned First Appellate Court that sale consideration Rs. 2000/- was never passed to the plaintiff and she is entitled to realize the said amount along with the damages. It be seen that the impugned judgment has only been assailed by third defendant (appellant herein) and not by first and second defendants. Hence the judgment and decree passed against these two defendants by learned First Appellate Court had become final. ( 8. It be seen that the impugned judgment has only been assailed by third defendant (appellant herein) and not by first and second defendants. Hence the judgment and decree passed against these two defendants by learned First Appellate Court had become final. ( 8. ) THE question now would arise for consideration as to whether the third defendant, who is a lawyer and is not a party to transaction of the sale can be made liable to pay the sale consideration amount to the plaintiff in case first and second defendants fail to pay the same to the plaintiff. According to me, because the disputed land was never sold in favour of third defendant and he was not a party to the transaction of sale which was taken place between plaintiff and second defendant and because the sale-deed was executed by plaintiff in favour of first defendant under the guardianship of his father (second defendant), the status of third defendant in the eye of law would be that of a 'guarantor'. On bare perusal of the plaint averments it is luminously clear that third defendant promised plaintiff that in case second defendant fails to pay the sale consideration, he (third defendant) would pay the same, but, the said guarantee given by the appellant (third defendant) was without any consideration. In these facts and circumstances section 127 of the Indian Contract Act, 1872 (in short "Contract Act") would come into play, which speaks about the consideration for guarantee. According to this provision anything done, or any promise made, for the benefit of principal debtor may be a sufficient consideration to the surety for giving the guarantee. However, mere promise given by the defendant No. 3 (appellant herein) promising to pay the sale consideration to plaintiff as guarantor would not amount to consideration for the guarantee of payment. It would be condign to quote section 127 of the Contract Act along with illustrations and particularly illustration (c), which reads thus; 127. Consideration for guarantee :- Anything done, or any promise made, for the benefit of the principal debtor, may be a sufficient consideration to the surety for giving the guarantee. Illustrations (a) B requests A to sell and deliver to him goods on credit. A agrees to do so, provided C will guarantee the payment of the price of the goods. Consideration for guarantee :- Anything done, or any promise made, for the benefit of the principal debtor, may be a sufficient consideration to the surety for giving the guarantee. Illustrations (a) B requests A to sell and deliver to him goods on credit. A agrees to do so, provided C will guarantee the payment of the price of the goods. C promises to guarantee the payment in consideration of A's promise to deliver the goods. This is a sufficient consideration for C's promise. (b) A sells and delivers goods to B. C afterwards requests A to forbear to sue B for the debt for a year, and promises that, if he does so, C will pay for them in default of payment by B. A agrees to forbear as requested. This is a sufficient consideration for Cs promise. (c) A sells and delivers goods to B. C afterwards, without consideration, agrees to pay for them in default of B. The agreement is void, (emphasis supplied) The present case comes within the purview of illustration (c) and therefore merely because the appellant (third defendant) made promise to plaintiff that in case first and second defendants who were required to pay the sale price to her, fail to pay the same, he would pay the sale price, that promise was without consideration and therefore the said agreement between the plaintiff and third defendant (appellant herein) was void. Needless to say that a void agreement cannot be enforced by law and therefore according to me, since the status of appellant (third defendant) is that of a guarantor, his case is covered under the ambit of illustration (c) to section 127 of the Contract Act and he is not liable to pay the sale consideration or any other amount to the plaintiff on account of the failure in making the payment by first and second defendants. ( 9. ) THE substantial question of law No. 1 is thus answered that learned Lower Appellate Court was not justified in passing a decree against the appellant (third defendant) who was not a party to the transaction of the sale and he was only a guarantor without consideration and therefore the agreement between him and plaintiff is void. Regarding substantial question of law No. 2 ( 10. Regarding substantial question of law No. 2 ( 10. ) SINCE the first question has been answered in favour of the appellant and the fate of this appeal and the suit is being decided by answering the aforesaid question, this substantial question of law is not being answered. Resultantly, this appeal succeeds and is hereby allowed. The impugned judgment and decree passed by learned First Appellate Court so far as it relates to appellant (third defendant) is concerned, is hereby set aside and the suit of the plaintiff against the appellant is hereby dismissed with no order as to costs. Appeal allowed.