Madhya Pradesh High Court
Balmukund vs Smt. Rajkumari @ Rajani on 1 March, 2023
Author: Dwarka Dhish Bansal
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL
ON THE 01st OF MARCH, 2023
SECOND APPEAL NO. 1941 OF 2022
BETWEEN:-
BALMUKUND S/O LATE SHRI BHAWANI
PRASAD SONI, AGED ABOUT 60 YEARS,
OCCUPATION: BUSINESS R/O LAXMI
WARD, DEORI, TEHSIL DEORI,
DISTRICT SAGAR (MADHYA PRADESH)
...................APPELLANT
(BY DR. ANUVAD SHRIVASTAVA - ADVOCATE)
AND
SMT. RAJKUMARI @ RAJANI W/O
LATE SHRI BASANT TRIPATHI,
AGED ABOUT 43 YEARS, R/O
SHASTRI WARD, TAHSIL DEORI,
DISTRICT SAGAR (MADHYA
PRADESH)
.................RESPONDENT
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This appeal coming on for admission this day, the court passed the
following:
ORDER
This second appeal has been preferred by the plaintiff
challenging the judgment and decree dated 07.07.2022 passed by
District Judge, Deori, District Sagar in Civil Appeal No.6/2020
reversing the judgment and decree dated 11.02.2020 passed by Civil
Signature Not Verified
Signed by: S HUSHMAT
HUSSAIN
Signing time: 3/3/2023
5:17:09 PM
Judge Class-I, Deori, District Sagar in Civil Suit No.58-A/2014,
whereby learned trial Court decreed the suit for specific performance
of disputed agreement of sale, which has been reversed by first
appellate Court by granting decree of refund of advance sale
consideration of Rs.4,00,000/- along with interest at the rate of 6% per
annum.
2. In short the facts are that the plaintiff instituted a suit for specific
performance on the basis of agreement of sale dated 29.08.2013 with
the contention that at the time of execution of agreement, an amount of
Rs.2,00,000/- was given in advance and rest of the amount of
Rs.7,00,000/- was agreed to have been paid at the time of registration
of sale deed. Thereafter, another agreement was executed on
25.02.2014, whereby further amount of Rs.2,00,000/- was given. It is
also alleged that since after execution of the agreement, the plaintiff
has always been ready and willing to get executed the sale deed, after
payment of balance consideration. With these allegations the suit was
filed for specific performance and thereafter by way of amendment,
relief of refund of advance consideration of Rs.4,00,000/- along with
interest was also prayed.
3. The defendant appeared and filed written statement denying the
execution of agreement of sale and contended that due to ailment of
her son, an amount of Rs.30,000/- was taken by her from the plaintiff,
which has already been repaid. It is contended that at that time the
plaintiff got signatures of defendant on blank stamp papers, over which
the plaintiff has prepared agreement mentioning excessive amount. It is
also contended that the suit house being joint and undivided family
Signature Not Verified
Signed by: S HUSHMAT
HUSSAIN
Signing time: 3/3/2023
5:17:09 PM
property, the defendant had no right to sell the same. With the aforesaid
contentions, the suit was prayed to be dismissed.
4. Learned trial Court on the basis of pleadings of the parties,
framed issues and recorded evidence and on the basis of agreement of
sale and admitted signature of the defendant over it, decreed the suit
holding the plaintiff to be entitled for decree of specific performance.
However the same has been reversed by learned first appellate court
granting decree of refund of advance consideration.
5. Learned counsel for the appellant submits that in view of the fact
that agreement was executed by the defendant and the same has been
found proved by learned Courts below, the learned first appellate court
has erred in reversing the judgment and decree of learned trial Court
and further erred in granting decree of refund of consideration, whereas
the plaintiff was entitled for decree of specific performance. In support
of his arguments, he placed reliance on the decision in the case of ALN
Narayanan Chettyar and another v. Official Assignee High Court,
Rangoon and Another AIR 1941 Privy Council 93 and prays for
admission of the second appeal.
6. Heard learned counsel for the appellant and perused the record.
7. Undisputedly the house property in dispute belongs to three
persons i.e. husband of defendant Rajkumari, namely Basant Tripathi
and his two brothers. All the three brothers had 1/3-1/3 joint share, out
of which the defendant is said to have sold her 1/3 share in the
dwelling house. As against the case of plaintiff, the defendant has
contended that there is no transaction of sale in between the parties but
because of ailment of her son, some amount was taken as a loan.
Signature Not Verified
Signed by: S HUSHMAT
HUSSAIN
Signing time: 3/3/2023
5:17:09 PM
8. Learned first appellate Court has held that because the defendant
has admitted her signature on the agreements (Ex.P/1 & P/2), therefore,
the defendant cannot take plea to have not received an amount of
Rs.4,00,000/-, therefore, learned first appellate Court has held that the
agreements (Ex.P/1 & P/2) were executed, but in fact they were
executed as against the loan transaction and further the defendant had
no right to sell the property without partition of the same, resultantly,
learned first appellate court has granted decree of refund of advance
consideration, which has also been prayed by the plaintiff in the plaint.
9. As such in the existing facts and circumstances of the case and in
view of the findings recorded, in my considered opinion no illegality
has been committed by learned first appellate Court in passing the
impugned judgment and decree.
10. Resultantly, the second appeal fails and is hereby dismissed.
11. Interim application(s), if any, shall stand dismissed.
(DWARKA DHISH BANSAL)
JUDGE
[email protected]
Signature Not Verified
Signed by: S HUSHMAT
HUSSAIN
Signing time: 3/3/2023
5:17:09 PM
