MOHAMED AMIR ALI KHAN Vs. KHAJA JAMALUDDIN MINOR

JUDGEMENT

(1.) O.S. No. 2/1 of 1953-54, out of which this first appeal ore behalf of the defendant arises, was instituted by the respondent herein, a minor, through his guardian Aziz Khatoon, the mother, for recovery of a sum of (O.S.) Rs. 10,000, alleging that the defendant who was his distant relative was in need of money and in that connection approached his mother and represented to her that her husband, Khaja Kamaluddin, Jagirdar, was addicted to drinking, due to which it was difficult to obtain the amount of the jagir deposited in the Court of Wards and if she proposed to the Court of Wards that she wanted to purchase a house in the name of her son, she would be able to get the amount lying in deposit there and on that pretext he proposed to sell his house together with the garden (Khana Bagh) bearing No. 678 at New Malakpet, Chanchalguda, Hyderabad, in consideration of Rs. 86,000 (O.S.) after obtaining a sum of Rs. 10,000 by way of loan and executiag an agreement of sale dated 13th May, 1950. It is the further case of the plaintiff that the defendant promised that he would obtain the amount from the Court of Wards through his influence, and although the plaintiff had neither any property nor could afford to purchase a house on payment of such a large sum, nor was the defendant's house so valuable, the defendant obtained the money from him fraudulently, and in spite of repeated demands, the defendant had failed to pay the amount.

(2.) The defendant, in his written statement, while admitting having executed the agreement to sell, stated that the agreement was with Khaja Kamaluddin, the father of the plaintiff, who paid the earnest money under the terms of the agreement and that according to the agreement, Khaja Kamaluddin was bound to pay the balance of the said consideration amount within two months and get the bungalow registered in his favour and obtain possession of the same, but as he did not abide by his promise, the earnest money lapsed. He inter alia denied that the amount of Rs. 10,000 was paid to him by way of loan and stated that that was paid as earnest money of the sale agreement. Legal objection was also taken that unless all the heirs of the deceased Jagirdar are co-plaintiffs the suit could not proceed. In the rejoinder, the plaintiff denied the allegations of the defendant and stated that even if there was any agreement of sale, the same could not bind him as it was not beneficial to him. He also alleged that there could not be any case of the lapse of earnest money.

(3.) On these averments in the pleadings, the trial Court framed the following seven issues : 1. Whether, as alleged in the plaint, the defendant borrowed Rs. 10,000 from the plaintiff and described it as earnest money for the purchase of his bungalow ? 2. Whether the agreement, dated 13th May, 1950 was executed by the defendant only for show in order to enable the plaintiff to secure money from the Court of Wards ? 3. Whether the plaintiff can be allowed to adduce evidence to contradict the terms of the written agreement ? 4. Whether the name of the minor was entered in the agreement as ' benami' and the amount of Rs. 10,000 belonged to the deceased Khaja Kamaluddin? If so, what is the effect of not impleading other heirs of the deceased in this suit ? 5. Can the minor be allowed to repudiate the contract. If so, what is its effect on the suite 6. Is the suit maintainable ? 7. To what relief, if any, is the plaintiff entitled ? Evidence was led by the parties, both documentary and oral. On the evidence produced, the learned trial Judge found issues 1, 2 end 3 against the plaintiff and issues 4" 5 and 6 to 7 in his favour. In the result, the learned Judge decreed the suit. Aggrieved by the judgment and decree passed by the trial Court, the defendant has come up in appeal.