Mamta Yadav vs Kishan Chand Jain
2022 Latest Caselaw 7430 Chatt

                                                                                               NAFR

                   HIGH COURT OF CHHATTISGARH, BILASPUR

                                 First Appeal No.51 of 2008

                          Judgment Reserved on :              31.10.2022
                          Judgment Delivered on :              9.12.2022

         Smt. Shanti Bai, D/o Tulsiram Yadav, aged about 75 years, R/o Near
         Satbahinia Mandir, Bandhwapara, Raipur, Tahsil and District Raipur,
         Chhattisgarh --- Dead, through Legal Heirs -
    1. Mamta Yadav, wife of Anil Yadav, D/o Late Heeralal Yadav, aged
       about 40 years,
    2. Suraj Yadav, son of Late Heeralal Yadav, aged about 38 years,
    3. Prakash Yadav, son of Heeralal Yadav, aged about 36 years,
    4. Rakesh Yadav, son of Late Heeralal Yadav, aged about 34 years,
    5. Savitri Yadav, D/o Late Jagdish Yadav, aged about 41 years,
    6. Bharat Yadav, son of Late Jagdish Yadav, aged about 39 years,
    7. Vijay Yadav, son of Late Jagdish Yadav, aged about 36 years,
    8. Vikas Yadav, son of Late Jagdish Yadav, aged about 34 years,
    9. Jawahar Yadav, son of Late Shyamlal Yadav, aged about 59 years,
    10. Saraswati Yadav, wife of Nandlal Yadav, D/o Late Shyamlal Yadav,
        aged about 57 years,
    11. Anjani Yadu, wife of Lomash Yadav, D/o Late Shyamlal Yadav, aged
        about 55 years,
         All are R/o Bandhwapara, Tahsil and District Raipur, Chhattisgarh

                                                                                    ---- Appellants
                                               versus
         Kishan Chand Jain, S/o Nemichand Jain, aged about 47 years, R/o
         Vivekanandnagar, Raipur, Tahsil and District Raipur, Chhattisgarh

                                                                                   --- Respondent

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For Appellants : Shri Goutam Khetrapal, Advocate For Respondent : Shri B.P. Sharma, Advocate with Ms. Sameeksha Gupta and Ms. Anuja Sharma, Advocates

-------------------------------------------------------------------------------------------------------

Hon'ble Shri Justice Arvind Singh Chandel

C.A.V. JUDGMENT

1. The instant appeal arises out of the judgment and decree dated

14.2.2008 passed by the 12th Additional District Judge (FTC),

Raipur in Civil Suit No.8A of 2007, whereby the Court below has

granted a decree of specific performance of contract in favour of

the Respondent/plaintiff.

2. Facts of the case, in short, are that Respondent/plaintiff Kishan

Chand Jain instituted a civil suit for specific performance of contract

and permanent injunction against Appellant/defendant Smt. Shanti

Bai stating that the defendant and her brother Mehattar Yadav, her

sisters Maltibai and Kuntibai and their mother Bhagabai executed a

contract deed for sale of land bearing Khasra No.320/3 area 0.547

hectares situated at Village Deopuri, Patwari Halka No.114, Tahsil

and District Raipur to the plaintiff at the rate of Rs.6,08,000 per acre

on 6.4.2004 vide Ex.P1 and received an advance amount of

Rs.50,000. As per the agreement (Ex.P1), the plaintiff should have

executed the sale-deed within 2 months and remaining amount

should have been paid at the time of registration of the sale-deed. It

was further pleaded by the plaintiff that the suit land has been

partitioned among the defendant and her mother, brother and

sisters. The mother, brother and sisters of the defendant have

executed the sale-deed to their share of the land in favour of the

plaintiff on 18.10.2004 and 26.10.2004, but the defendant has not

executed the sale-deed of her share then the plaintiff gave a legal

notice to the defendant for compliance of the agreement (Ex.P1) on

9.3.2005, but the defendant denied the same. She also denied the

contents pertaining to taking of the advance money. Therefore, the

civil suit was filed by the plaintiff.

3. Defendant Smt. Shanti Bai submitted her written statement denying

the contents of the plaint. It was pleaded that she has not executed

any agreement to sell in favour of the plaintiff and she has not

taken any amount in advance. It was further pleaded that she was

70 years old illiterate lady and when she acknowledged with the

fact of such agreement, she got published a declaration in a daily

newspaper on 19.4.2004 denying execution of such type of

agreement. It was further pleaded that the suit is not properly

valued and sufficient Court fee is also not paid and the suit is also

time barred.

4. On the basis of the pleadings, the Trial Court framed as many as 4

issues, which read thus:

                         "okn&iz'u                        fu"d"kZ

          1   D;k izfroknh xzke nsoiqjh esa                   gkWa

fZLFkr [k-ua- [email protected]] jdck 0-547 [k-ua- [email protected] jdck 0-547 gsDVs;j Hkwfe dks vius HkkbZ rFkk gsDVs;j Hkwfe dk lkSnk cguksa ds lkFk Ng yk[k :i, izfrokfnuh ,oa vU; fodzsrkx.k izfr ,dM+ dh nj ls ipkl us oknh ls [email protected]& gtkj :i, oknh ls c;kuk ysdj izfr ,dM+ dh nj ls fodz; djus dk lkSnk iDdk fd;k ,oa 50][email protected]& c;kuk fd;k Fkk\ jkf'k izkIr fd;kA 2 D;k oknh r; 'kqnk Hkwfe dks dz; gkWa dj iath;u fodz; vfHkys[k fu"ikfnr djkus ds fy;s rRij jgk\ 3 D;k izfroknh us oknxzLr Hkwfe dks Okknh dks fodz; u djus ckcr~ fodz; u djus dh vlgefr rF; dk izdk'ku ugha djk;k le;≤ ij nSfud lekpkj x;k gSA vlgefr izekf.kr i= esa izdkf'kr djkbZ Fkh\ ughaA 4 vU; lgk;rk ,oa O;; vkKfIr vuqlkjA"

5. After recording evidence of the parties and hearing arguments

raised on their behalf, vide the impugned judgment dated

14.2.2008, the Trial Court allowed the civil suit and passed a

decree in favour of the plaintiff. Hence, the instant appeal by the

defendant.

6. During pendency of the instant appeal, original defendant Smt.

Shanti Bai died and her legal heirs are brought on record.

7. Learned Counsel appearing for the present Appellants/legal heirs

of the deceased Appellant/defendant submitted that the Trial Court

has erred in deciding the suit in favour of the Respondent/plaintiff

and has not appreciated the evidence on record properly. From the

evidence on record, it is established that defendant Smt. Shanti Bai

did not take any advance amount from plaintiff Kishan Chand Jain

individually. But, the Trial Court has wrongly held that she has

taken advance amount and entered into the agreement pertaining

to sale of the suit land. Referring to the agreement (Ex.P1), it was

submitted by the Learned Counsel that as the agreement does not

contain signature of the plaintiff, i.e., purchaser, therefore, the

agreement is not an agreement to sell the suit land. Rather, it is

only a proposal for sale of the suit land. Therefore, the finding of

the Trial Court in this regard is perverse. Reliance was placed on

1997 SCC OnLine Mad 817 (S.M. Gopal Chetty v. Raman alias

Natesan). It was further argued that as from the initial stage itself,

the defendant, who was a 70 years old illiterate lady, has been

denying execution of the sale, the burden to prove it falls on the

plaintiff. As the defendant was an illiterate lady, she had to be

considered to be ignorant and the burden to prove that her consent

had not been obtained by undue influence falls upon the plaintiff. In

this regard, reliance was placed on (2008) 4 SCC 530

(Thiruvengadam Pillai v. Navaneethammal), 1993-1-LW 466

(Chidambaram Pillai v. Muthammal) and (2004) 9 SCC 468

(Krishna Mohan Kul alias Nani Charan Kul v. Pratima Maity). But,

the plaintiff failed to discharge his burden. Therefore, the judgment

and decree passed by the Court below is not sustainable.

8. Learned Counsel appearing for the Respondent/plaintiff supported

the impugned judgment of the Court below.

9. I have heard the arguments raised on behalf of the parties and

perused the entire record of the Court below with due care.

10. Undisputedly, initially, the suit land was recorded in the joint names

of defendant Smt. Shanti Bai, her brother Mehattar Yadav, her

sisters Maltibai and Kuntibai and her mother Smt. Bhagabai. It is

also not in dispute that all they are step brother, sisters and mother

of defendant Smt. Shanti Bai. It is also not in dispute that at the

time of execution of the alleged agreement (Ex.P1), the age of Smt.

Shanti Bai was about 70 years and she was an illiterate lady.

11. According to the pleadings and evidence adduced by the plaintiff,

the agreement (Ex.P1) was executed on 6.4.2004. From perusal of

the agreement and from the admission made by plaintiff Kishan

Chand Jain (PW1) and his witness Surendra Tiwari (PW2), it is

established that in the agreement (Ex.P1), signatures or thumb

impressions of the purchaser/plaintiff Kishan Chand Jain and one of

the sellers, namely, Kuntibai are not present. From the admission

made by Surendra Tiwari (PW2) and Kishan Chand Jain (PW1), it

is also established that at the time of giving of the advance amount,

Kuntibai was not present there. From the agreement (Ex.P1), it is

apparent that the sellers have obtained Rs.50,000 as an advance

from purchaser Kishan Chand Jain. In his Court statement also,

Kishan Chand Jain (PW1) has categorically stated that at the time

of execution of the agreement (Ex.P1), he had given Rs.50,000 as

advance to the vendors. Thus, it is clear that the agreement

(Ex.P1) is not merely a proposal, but, is an agreement because by

giving the advance amount, which has been accepted too by the

vendors, purchaser Kishan Chand Jain gave his acceptance to the

proposal made by the vendors for sale of their land. Though the

agreement (Ex.P1) does not contain the signature of the purchaser,

in the light of the law laid down by the Supreme Court in (2009) 2

SCC 582 (Aloka Bose v. Parmatma Devi), the agreement (Ex.P1)

of the instant case would be considered to be a valid contract. In

Aloka Bose case (supra), the Supreme Court held as under:

"18. In any agreement of sale, the terms are always negotiated and thereafter reduced in the form of an agreement of sale and signed by both parties or the vendor alone (unless it is by a series of offers and counter- offers by letters or other modes of recognised communication). In India, an agreement of sale signed by the vendor alone and delivered to the purchaser, and accepted by the purchaser, has always been considered to be a valid contract. In the event of breach by the vendor, it can be specifically enforced by the purchaser. There is, however, no practice of purchaser alone signing an agreement of sale."

12. Thus, I do not find any substance in the argument of Learned

Counsel for the Appellants that the agreement (Ex.P1) is not an

agreement to sell, but is mere a proposal.

13. Another contention was made by Learned Counsel for the

Appellants that defendant Smt. Shanti Bai has not executed any

agreement in favour of plaintiff Kishan Chand Jain nor has she

obtained any consideration amount as an advance from the

plaintiff/purchaser. It is submitted that at that time she was aged

about 70 years and was an illiterate lady and there was a dispute

between her and her step brother, step sisters and step mother and

she had already given a power of attorney to her own son Hiralal.

Therefore, she had no occasion to make any such agreement along

with her aforesaid step relatives. It was further submitted by

Learned Counsel for the Appellants that if defendant Smt. Shanti

Bai had made any agreement jointly along with her aforesaid step

relatives then the sale-deed would have also been executed jointly

including defendant Smt. Shanti Bai, but, nothing such has

happened. Rather, without making the defendant a party, her step

brother, sisters and mother got a partition of the suit land executed

and they sold their share to the plaintiff, which clearly shows that

neither the defendant made any agreement to sell the suit land nor

did she obtain any advance amount from the plaintiff. But, the

Court below did not consider this aspect and the evidence which is

available on record.

14. Dr. Kumari Sunanda Dhenge (PW3), a handwriting expert has

opined that the agreement (Ex.P1) contains the thumb impression

of defendant Smt. Shanti Bai. The question remains for

consideration is whether the defendant herself put her thumb

impression knowingly or it was obtained by her step brother

Mehattar Yadav as per the pleadings of the defendant.

Undisputedly, Mehattar Yadav was a step brother of defendant

Smt. Shanti Bai. The agreement (Ex.P1) was alleged to have been

executed on 6.4.2004. The public notice (Ex.D7) published in the

newspaper clearly shows that on 17.4.2004 the said public notice

was given by the defendant through her Advocate. In the said

public notice, it is mentioned that defendant Smt. Shanti Bai has

already appointed her son Hiralal as her power of attorney and it is

further mentioned in the said notice that for cancellation of said

power of attorney the public notice published by Mehattar Yadav

through his Advocate Sameer Hazara is not acceptable to her and

she has not cancelled the power of attorney executed by her in

favour of her son Hiralal. It is further mentioned in the aforesaid

public notice that she never executed any agreement to sell the

disputed joint property. Therefore, the finding of the Court below

that there was a cordial relation between the defendant and her

step brother, sisters and mother is perverse.

15. From perusal of Ex.D7, the public notice, it is apparent that

immediately after 10-11 days of the execution of the agreement

(Ex.P1), the said public notice (Ex.D7) was got published by the

defendant through her Advocate. If she had made such an

agreement (Ex.P1), she would have no occasion to deny execution

of the agreement (Ex.P1).

16. Undisputedly, the alleged agreement was executed by all the share

holders of the joint property. Therefore, also, there was no

occasion that all the share holders would have first got a partition

executed among them and thereafter executed the sale-deed of the

suit land of their share in favour of the plaintiff. From perusal of the

order dated 17.2.2005 (ExD8) passed by the SDO (Revenue),

Raipur, it also appears that on the basis of application made by

Mehattar Yadav, Maltibai, Kuntibai and Bhagabai, without making

the defendant a party, on the basis of alleged forged partition,

without giving any opportunity of hearing to the defendant, the

Tahsildar mutated separate names of Mehattar Yadav, Maltibai,

Kuntibai and Bhagabai, which has been set aside by the SDO

(Revenue). Thus, it is also clear that there was a serious dispute

between the defendant and her step brother, sisters and mother

and without making her a party, they got their names mutated in the

revenue record. Looking to the above also, the execution of the

agreement (Ex.P1) by the defendant along with her step brother,

sisters and mother appears to be suspicious.

17. It was the contention of Learned Counsel appearing for the

Respondent/plaintiff that in her written statement and the Court

statement, defendant Smt. Shanti Bai has admitted the fact that the

agreement was executed by her. Therefore, the finding in this

regard made by the Court below is in accordance with the evidence

available on record. On the above submission, I have perused the

pleadings and the statement of the defendant as also the statement

of her witness Hiralal carefully. In her written statement and her

Court statement, defendant Smt. Shanti Bai has never admitted the

fact that she has executed the agreement (Ex.P1) nor has she

accepted any amount of consideration as advance. Her only

pleading is that for execution of sale-deed, when plaintiff Kishan

Chand Jain contacted her son Hiralal, at that time, a photo copy of

an agreement was shown to Hiralal, wherein a consideration

amount was mentioned as Rs.12,84,000 per acre and the advance

amount received in this regard was shown as Rs.4,00,000. But, at

the time of receiving of the legal notice along with the copy of the

agreement (Ex.P1), the amount agreed and mentioned for sale of

the land was Rs.6,08,000 per acre and the advance received was

Rs.50,000. She has never admitted that she executed any of the

above agreements. Merely on the basis of suggestions made

before plaintiff Kishan Chand Jain and his witness in this regard,

the Trial Court has arrived at the conclusion that the agreement

(Ex.P1) was executed by defendant Smt. Shanti Bai also. Thus,

the above finding of the Trial Court is also not acceptable.

18. From the evidence adduced by defendant Smt. Shanti Bai, both

oral and documentary, it is well established that there was a serious

dispute between her and her step brother Mehattar Yadav, sisters

Maltibai and Kuntibai and mother Bhagabai. In this condition, for

establishing the execution of the agreement by the defendant, it

was essential for plaintiff Kishan Chand Jain to produce and got

examined any of Mehattar Yadav, Maltibai, Kuntibai and Bhagabai

in support of the execution of the agreement (Ex.P1). But, the

plaintiff did not opt to do so.

19. Looking to the entire evidence adduced by the parties and on the

basis of the discussion made hereinabove, I find that the execution

of the agreement (Ex.P1) by defendant Smt. Shanti Bai is

suspicious and plaintiff Kishan Chand Jain has failed to prove the

fact that the said agreement (Ex.P1) was executed by the

defendant and the finding of the Trial Court in this regard is not in

accordance with the evidence available on record.

20. In the result, the instant first appeal is allowed. The impugned

judgment and decree dated 14.2.2008 is set aside.

21. A decree be drawn up accordingly.

Sd/-

(Arvind Singh Chandel) JUDGE Gopal