Back
IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR
A.K. Mathur, C.J. and A.K. Mishra, J.
Kamalrani Rajaram Guru and others
Vs.
Kumari Pinki d/o Hari Shankar Guru and another
F.A. No. 194 of 1996
Decided On: 26.11.1999
SPECIFIC PERFORMANCE - AGREEMENT TO SELL - REFUND OF EARNEST MONEY - READINESS AND WILLINGNESS TO PERFORM - MINORITY OF SELLER - HINDU MINORITY AND GUARDIANSHIP ACT, 1956 - SECTION 8.
Fact of the Case:
Plaintiffs filed a suit for specific performance of an agreement to sell agricultural land. The agreement was entered into with the original plaintiff Rajaram for a sum of Rs. 1,30,500/-. The sale-deed was to be executed on or before Fagun Sudi Puno Year 1990. The defendants served a notice on the plaintiffs alleging that the earnest money of Rs. 25,000/- was returned along with interest of Rs. 580/- but the agreement was not returned. The plaintiffs replied to the notice and stated that they were ready to purchase the property on Fagun Sudi Puno, 1990 and were also ready to pay the remaining consideration. The defendants sent a reply to the notice on 12-1-1990 and refused to execute the sale-deed. The plaintiffs filed a suit for specific performance of the agreement to sell dated 19-6-1989 on a condition of plaintiffs paying Rs. 1,05,500/-. In the alternative, it was also prayed that if the said decree is not granted, then Rs. 25,000/- be refunded together with interest at the rate of 2% per month since 19-6-1989.
Finding of the Court:
The trial court dismissed the suit and found that earnest money of Rs. 25,000/- along with interest of Rs. 580/- was refunded. The trial court also found that the agreement was executed on 19-5-1989. In the date of agreement, there is alteration from 19-5-1989 to 19-6-1989.
Issues: 1. Whether the earnest money was refunded to the plaintiffs? 2. Whether the plaintiffs were ready and willing to perform their part of the contract? 3. Whether the defendant No. 1 was a minor at the time of the agreement? 4. Whether the permission of the Court was obtained under section 8 of the Hindu Minority and Guardianship Act, 1956?
Ratio Decidendi: 1. The court found that the earnest money was refunded to the plaintiffs by the defendants. The court relied on the evidence of the defendants' witnesses, the contemporary conduct evidence of the lodging of the FIR and the serving of a registered notice, and the circumstances on record. 2. The court found that the plaintiffs failed to prove their readiness and willingness to perform their part of the contract. The court noted that the plaintiffs did not place on record any of the notices which they stated to have sent to the defendants, and that the plaintiffs' conduct was dilly and dallying. 3. The court found that the defendant No. 1 was a minor at the time of the agreement. The court noted that the plaintiffs did not file any document to prove that Hari Shankar was the general power of attorney holder of defendant No. 1. 4. The court found that the permission of the Court was not obtained under section 8 of the Hindu Minority and Guardianship Act, 1956. The court noted that the property belonged to defendant No. 1, who was a minor at the time of the agreement, and that Hari Shankar, as the natural guardian of defendant No. 1, could not alienate the property without the permission of the Court.
Final Decision: The court dismissed the appeal and held that the plaintiffs were not entitled to specific performance of the agreement to sell.
A.K. Mishra, J.
1. This appeal filed by the unsuccessful plaintiffs is for specific performance of an agreement to sell which has been disallowed by the learned trial Court with respect to an agricultural land comprising of khasra No. 213/2 in area 1.619 hectares and khasra No. 213/1 in area 0.809 hectares. Total area being 2.428 hectares situated at village Khamkheda, tehsil Deori, district Sagar.
2. It was alleged that an agreement to sell was entered into with the original plaintiff Rajaram for a sum of Rs. 1,30,500/-. The agreement was entered into by late Hari Shankar, defendant No. 2 and earnest money of Rs. 25,000/- was paid to him. The sale-deed was to be executed on or before Fagun Sudi Puno Year 1990. It was agreed that by executing the sale-deed and receiving the consideration of balance of Rs. 1,05,500/- before the Sub-Registrar, the registration of the document would be completed and the possession will also be handed over. The plaintiffs' father Raja Ram was ready and willing to pay remaining amount due under the agreement to defendants Nos. 1 and 2 to get the sale-deed executed, but all of a sudden, defendants Nos. 1 and 2 on 19-10-1989 served an incorrect notice falsely alleging that on 21-9-1989, earnest money Rs. 25,000/- was returned along with interest of Rs. 580/- but the agreement has not been returned in the pretext that it was with the son of plaintiff in a different village, but in spite of several demands, it has not been returned back. The earnest money Rs. 25,000/- and interest Rs. 580/- was not returned to the plaintiff. Notice of the defendants was replied to and it was mentioned that he was ready to purchase it on Fagun Sudi Puno, 1990 and was also ready to pay the remaining consideration and if the defendants wanted to get the sale-deed executed, earlier, 15 days notice be given so that the plaintiff was able to arrange and pay the money and get the sale-deed executed. The defendants Nos. 1 and 2 sent reply to the notice on 12-1-1990 and refused to execute the sale-deed and again repeated the allegations made in the previous notice. Hence, the plaintiff filed a suit on 6-2-1990 for specific performance of the agreement to sell dated 19-6-1989 on a condition of plaintiffs paying Rs. 1,05,500/-. In the alternative it was also prayed that if the said decree is not granted, then Rs. 25,000/- be refunded together with interest at the rate of 2% per month since 19-6-1989.
3. The defendant No. 1 in the written statement denied the plaint allegations and contended that defendant No. 2 Hari Shankar Guru was already dead. He was not general power of attorney holder of defendant No. 1. Defendant No. I further contended that the agreement was entered into by Hari Shankar Guru for a sum of Rs. 1,30,500/-. The sale-deed was to be executed by Amawasshya 2046 (year 1990), but the plaintiffs' father was not having the arrangement of money, hence another agreement was substituted on 19-5-1989 for the period upto Fagun Sudi Puno 1990. No agreement was executed on 19-6-1989. According to the agreement, defendant No. 1 was minor and defendant No. 2 could not enter into agreement without permission of the District Court, hence, the agreement was not binding on defendant No. 1.
4. It was further contended by defendant that Raja Ram was not willing to purchase the property. He expressed his unwillingness to purchase the property. Hence, on 21-9-1989 in front of the witness, earnest money of Rs. 25,000/- was refunded along with interest of Rs. 580/-. Thus, the total amount of Rs. 25,580/- was refunded but Raja Ram did not return the original agreement on the pretext that it was with his son in a different village and it will be returned as soon as it was obtained by Raja Ram from his son. When the agreement was not returned back and no receipt of the refund of the earnest money was given, the police report was lodged by defendant No. 2, Hari Shankar at police-station Gorchamar on 6-10-1989 and subsequently, on 19-10
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
