VIJAYKUMAR TUKARAM Vs. GOKULCHAND SURAJMAL GAJBI

JUDGEMENT

(1.) The Plaintiff-appellant was a minor, aged about 9 years, at the time of the transaction which has given rise to this litigation. Purporting to act as the guardian of the minor Plaintiff, his father Tukaram entered into an agreement with the Defendant on the 13th of March 1954 to purchase a shop on the main road at Pusad for an amount of Rs, 12,000. Tukaram paid Rs. 1,000 as earnest-money and undertook to pay the balance of Rs. 11,000 at the time of registration of the sale-deed, which was to be executed on the 1st of April 1954. The Defendant executed an agreement, exhibit P-1, and Tukaram executed a counterpart of that document in favour of the Defendant. These documents mentioned that, in case the Defendant did not execute the sale-deed, he would return the earnest-money of Rs. 1,000 and pay damages of Rs. 2,000 to the Plaintiff and, in case the Plaintiff did not take the sale-deed, the amount of the earnest-money of Rs. 1,000 will be forfeited and the Plaintiff would have to pay Rs. 2,000 as damages to the Defendant. On the 31st of March 1954 Tukaram sent a registered notice, exhibit D-4, to the Defendant to call upon him to furnish security. In this notice, he alleged that he had learnt after the agreement that the property did not belong to the Defendant alone and the Defendant was heavily indebted and was intending to effect the transfer to defraud his creditors. Tukaram, therefore, asked in the notice to give security for reimbursing the Plaintiff if he was put to a loss by completing this agreement. The notice also called upon the Defendant to satisfy the Plaintiff that the Defendant had an unencumbered title. The notice farther mentioned that if the Plaintiff was not satisfied as asked in the notice, ho would have to revoke and rescind the agreement, dated the 13th of March 1954. This notice reached the Defendant on the 2nd of April 1954, but in the meantime the Defendant had sent a telegram on the 1st of April 1954 to call upon the Plaintiff to complete the transaction as per the agreement, dated the 13th of March 1954. On the 7th of April 1954, the Defendant sent his reply exhibit D-5, to Tukaram's notice, exhibit D-4, denying the allegations made therein. Thereafter, the Plaintiff gave another notice to the Defendant on the 17th of May 1954 to intimate that the contract, exhibit P-1, was rescinded. On the 13th of March 1957 the present suit was filed.

(2.) The Plaintiff, through his guardian father, filed the present suit for a refund of consideration and for rescission of the contract, exhibit P-1, on the following allegations:-

(3.) The Defendant resisted the claim on the following allegations: Tukaram had not entered into the agreement as the guardian of the Plaintiff but had brought about the agreement for and on behalf of the joint family of which he was a member. The shop was being purchased by the joint family of the Plaintiff and not by the Plaintiff himself. The allegations that the Defendant was indebted either to the creditors or to the Government on account of Income-tax arrears were false. The shop belonged to the Defendant alone. There was no intention of defrauding the creditors or the Government and the transaction was not effected for such purposes. The demands made in the notice, exhibit D-4, were unreasonable. The Defendant was always willing to carry out the contract of sale according to the agreement, exhibit P-1, and there were no grounds for rescinding it. The allegation that there was no mutuality was denied. No question of mutuality arose because the agreement was made by Tukaram for and on behalf of the family. No question of benefit of the minor also arose because the contract was in the course of the management of the joint family carried on by the Plaintiff's father and uncle. Benefit must be presumed under the circumstances. The Plaintiff is not entitled either to a refund of the earnest-money or to a cancellation of the sale-deed.