Shanti Bai vs Kishan Chand Jain

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.

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.

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.

On the basis of the pleadings, the Trial Court framed as many as 4 issues, which read thus:

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.

During pendency of the instant appeal, original defendant Smt. Shanti Bai died and her legal heirs are brought on record.

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.

Learned Counsel appearing for the Respondent/plaintiff supported the impugned judgment of the Court below.

I have heard the arguments raised on behalf of the parties and perused the entire record of the Court below with due care.

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.

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.”

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.

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.

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.

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).

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.

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.

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.

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.

In the result, the instant first appeal is allowed. The impugned judgment and decree dated 14.2.2008 is set aside.

A decree be drawn up accordingly.