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 P R E S E N T THE HON'BLE MR. JUSTICE MUNGESHWAR SAHOO J U D G M E N T 1. The defendant has filed this First Appeal against the Judgment 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 Mungeshwar Sahoo, J. 2 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. 3 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 4 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?” 5 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. 6 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. 7 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 8 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. 9 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 10 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.