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Allahabad High Court · body

2012 DIGILAW 966 (ALL)

Munni Devi (Smt. ) v. Shanti Devi and another

2012-04-23

MANOJ MISRA

body2012
Manoj Misra, J.— 1. I have heard learned counsel for the appellant and Sri B.K. Tripathi for the plaintiff-respondent. 2. This is a defendant's appeal against the judgment and decree dated 27.01.2012 passed by the IIIrd Additional District Judge, Court No.2, Bijnor in Civil Appeal No. 60 of 2010 arising out Original Suit No. 96 of 2004, filed by the plaintiff-respondent for specific performance of agreement for sale dated 19.05.2003. 3. The plaint case was that on 19.05.2003, a registered agreement for sale was executed by one Smt. Munni Devi (defendant-appellant herein) in favour of Smt. Shanti Devi (plaintiff-respondent No.1 herein) and Chandra Pal (defendant-respondent No.2 herein). As per the agreement, 759/1171 part of the land bearing Khasra No. 271 having an area of 1.171 hectare was agreed to be sold to the plaintiff-respondent No.1 (Shanti Devi) whereas the balance was agreed to be sold to Chandra Pal (defendant-respondent No.2). The sale consideration was fixed at Rs. 3,50,000/-. Out of the aforesaid amount, the plaintiff (Shanti Devi) was required to pay Rs. 2,27,000/- for her part, whereas the defendant-respondent No.2 (Chandra Pal) was to pay the balance. The plaintiff, before the execution of the agreement for sale, had paid Rs. 2,00,000/- by way of earnest money whereas the defendant No.2 (Chandra Pal) had paid Rs. 5,000/- on his part. The balance of the sale consideration was to be paid on the execution of the sale deed. It was claimed by the plaintiff that she has been through out ready and willing to perform her part under the agreement but the defendant No.1 (appellant herein) had been avoiding to execute the sale deed, hence, the suit was filed for specific performance. 4. The defendant-appellant contested the suit on the ground that she was a widow and illiterate lady. The land, which was the subject matter of agreement, was ancestral property belonging to the father of late Om Prakash (her late husband). The plaintiff being a cunning lady, brought the defendant to Najibabad for execution of surety with regard to some bail bond and in the process got the photographs of the defendant taken and in collusion with the witnesses, namely, Ram Singh, Babu Ram and Chhatra Pal Singh as also the petition writer, Sri Rabindra Kumar Sharma got the agreement for sale executed from her. She further contended that no consideration was paid to her and that the agreement was neither read out nor explained to her. She, accordingly, claimed that the agreement was an outcome of fraud. She claimed that knowledge of the execution of the agreement was received by her on 30.05.2003, thereafter she obtained certified copy thereof and came to know about the fraud played upon her. Consequently, she instituted Original Suit No. 184 of 2004 for declaration that the agreement in question was a nullity. 5. The plaintiff-respondent had also filed an original suit No. 389 of 2003 against the present defendant-appellant for permanent prohibitory injunction, on the plea that under the agreement for sale dated 19.05.2003 she had entered into possession of the land concerned. All the three suits, namely, Original Suit No. 96 of 2004 (Out of which the present appeal arises), Original Suit No. 389 of 2003 and Original Suit No. 184 of 2004 were consolidated and tried together and Original Suit No. 96 of 2004 was made the leading case. 6. Before the trial court the plaintiff examined herself as PW1, Ram Singh (the attesting witness) as PW2 and Babu Ram (another attesting witness) as PW3. The trial court, after considering the evidence led on behalf of the plaintiff as well as the defendant-appellant, recorded finding that the agreement for sale was duly executed and it disbelieved the plea of the defendant (Munni Devi) that fraud was played on her. The trial court further found that the husband of the defendant-appellant (Munni Devi) was one of the co-executant of the agreement in question. The trial court also disbelieved the statement of the defendant-appellant that her husband Chandra Pal was in a state of intoxication at the time of execution of the agreement in question therefore he could not understand the nature of the transaction. The trial court further observed that if the intention of the plaintiff had been to play fraud on the defendant then the plaintiff would have had got the entire land agreed to be transferred to herself rather than having only a portion thereof. The trial court further found that the plaintiff- Smt. Shanti Devi had been always ready and willing to perform her part under the agreement and as such was entitled to decree of the suit for specific performance. The trial court further found that the plaintiff- Smt. Shanti Devi had been always ready and willing to perform her part under the agreement and as such was entitled to decree of the suit for specific performance. With the aforesaid findings, the trial court, accordingly, decreed the suit for specific performance with a direction that if the plaintiff deposits the balance amount of Rs. 27,700/- within 30 days of the judgment then the defendant would execute the sale-deed in terms of the agreement dated 19.05.2003. 7. The trial court, however, dismissed the Original Suit No.389 of 2003 filed by Smt. Shanti Devi for permanent prohibitory injunction primarily on the ground that a mere agreement to sell does not confer any interest over the property, therefore, no injunction could be granted against a true owner. The trial court further dismissed the Original Suit No. 184 of 2004 filed by Munni Devi for declaration that the agreement dated 19.05.2003 was nullity. 8. Aggrieved by the judgment and decree of the trial court, Munni Devi filed two appeals, namely, Civil Appeal No. 60 of 2010 against decree in Original Suit No. 96 of 2004 and Civil Appeal No. 61 of 2010 against the decree in Original Suit No. 184 of 2004. Both the aforesaid civil appeals were heard together and dismissed by the courts below vide common judgment dated 27.01.2012. 9. While dismissing the appeals of Munni Devi and thereby affirming the judgment and decree of the trial court, the Lower Appellate Court observed/found:- (a) that the plea of Munni Devi that she had gone to Najibabad for executing surety bonds and that there, by playing fraud, agreement for sale was got executed from her, was not substantiated, as in the written statement there is no disclosure of the name of any person for whom she went to Najibabad for the purpose of executing surety bonds; (b) that Munni Devi's husband Chandra Pal was a co-executant and a beneficiary under the agreement in question and that he had accompanied Munni Devi to Najibabad where the agreement was executed; and (c) that it was not proved that Chandra Pal (the husband of Munni Devi), who had accompanied Munni Devi and was also a co-executant to the agreement for sale, was intoxicated to such an extent that his mental faculties were not intact so as to enable him to understand the nature of the transaction. 10. With regard to the claim of Munni Devi that the trial court should have allowed her the benefit as was available in law to a "Pardahnashin Lady", the appellate court held that the said benefit was not available to her inasmuch as her husband had accompanied her to the place of execution of the agreement in question and since her husband was also one of the parties to the agreement, and he was in a position to protect the interest of his wife, therefore, the benefit of the law relating to a "Pardahnashin Lady", was not available to the defendant-appellant. 11. The lower appellate court thus, after considering the oral as well as documentary evidence on record, came to a comprehensive finding of fact that the agreement was duly executed and that the payment of consideration was duly made, which was also proved by the inscription made by the Sub-Registrar that Smt. Munni Devi had admitted before him that Rs. 2,05,000/- was paid to her before the execution of the agreement for sale. 12. Aggrieved by the dismissal of the appeal, the present second appeal has been filed. 13. The counsel for the appellant pressed the appeal on two grounds:- (a) that the finding recorded by the courts below stood vitiated for the reason that the protection, as is available to a Pardahnashin lady, was not provided to the appellant even though the appellant was illiterate, and since the courts below have not scrutinized the evidence in that light, the matter requires to be remanded back to the court below; and (b) that the land in question has since appreciated in value and that the consideration fixed was meagre, as compared to the market price, therefore, the courts below ought to have refused to grant the discretionary relief of specific performance on the principles enshrined under section 20 (2) of the Specific Relief Act. 14. The counsel for the appellant placed reliance on Apex court's decision rendered in the case of Mst. Kharbuja Kuer versus Jang Bahadur Rai reported in AIR 1963 SC 1203 . Relying on the said judgment, the counsel for the appellant submitted that since the defendant appellant was an illiterate person, therefore, the courts below should have recorded a finding upon consideration of evidence on record that the transaction in question was entered into by the defendant after clearly understanding the nature of the transaction. Relying on the said judgment, the counsel for the appellant submitted that since the defendant appellant was an illiterate person, therefore, the courts below should have recorded a finding upon consideration of evidence on record that the transaction in question was entered into by the defendant after clearly understanding the nature of the transaction. 15. After having heard the counsel for the parties and having gone through the material brought on record, I am of the view that the purpose of granting protection to a pardahnashin/illiterate lady is to ensure that she, being a person not well aware of the nuances of the worldly transactions, enters into a transaction with full understanding of its nature. In the present case, the defendant-appellant was accompanied by her husband, who was also one of the beneficiary of the agreement in question. She thus had all the support of her nearest well wisher while entering into the transaction. In such a situation applying the strict principle of the law relating to pardahnashin lady would not serve the ends of justice. It is noteworthy that the defendant appellant has not taken a case in this appeal that her husband himself was a party to the fraud. It has also not been pleaded in the written statement that Chandra Pal Singh was illiterate so as to be incapable of understanding the nature of the transaction. In fact, she did not even disclose in the written statement that Chandra Pal Singh, one of the co-executant to the agreement, was her husband. The fact that Chandra Pal Singh was her husband came to light only when the evidence was led. Then the defendant-appellant took a plea that her husband was in a state of intoxication, which both the courts below found not to be to such an extent that her husband's mental faculties were impaired so as to render him incapable of understanding the nature of the transaction. In this view of the matter, I am of the view that the lower appellate court was justified in refusing to grant the benefit of pardahnashin lady to the defendant-appellant. 16. Even otherwise, so as to satisfy myself, I have gone through the statement of Shanti Devi (PW1), which has been enclosed as Annexure No.5 to the affidavit in support of the stay application. 16. Even otherwise, so as to satisfy myself, I have gone through the statement of Shanti Devi (PW1), which has been enclosed as Annexure No.5 to the affidavit in support of the stay application. From there it appears that Shanti Devi had stated that Munni Devi got the agreement scribed from Shailendra (deed writer) and had put her thumb impression only after getting it read over and understanding the same. 17. So far as the contention of the appellant that the court below should not have given the discretionary relief of specific performance is concerned, I am of the view that mere appreciation in the value of the property is not a ground enough to refuse specific performance of an agreement for sale. The written-statement of the defendant-appellant, which has been brought on record as Annexure No. 4 to the affidavit, does not disclose that on the day when the agreement for sale was entered into, the value of the property was higher than what was fixed in the agreement for sale. Further more, the Explanation 1 to section 20 (2) of the Specific Relief Act provides that mere inadequacy of consideration shall not be deemed to constitute an unfair advantage within the meaning of clause (a) or hardship within the meaning of clause (b). Even otherwise, in the written-statement, I do not find any specific pleading of hardship so as to justify refusal of the decree for specific performance. It is also noteworthy that the plaintiff under the agreement has already paid a sum of Rs.2,00,000/- to the defendant appellant and it is only Rs.27,700/- that remained to be paid. In the facts of the case, I am, therefore, of the considered view that there is no good ground to refuse the decree for specific performance of the agreement. 18. For the reasons aforesaid, the present appeal does not raise any substantial question of law for adjudication. The findings recorded by the courts below are based on proper appreciation of evidence on record and do not suffer from any legal infirmity. The appeal is, therefore, dismissed summarily under Order 41 Rule 11 of the Code of Civil Procedure. 19. No order as to costs. _