MOHAMED AMIR ALI KHAN Vs. KHAJA JAMALUDDIN

JUDGEMENT

(1.) O.S. No. 2/1 of 1953-54, out of which this first appeal on 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, Chenchalguda, Hyderabad, in consideration of Rs. 86,000 (O.S.) after obtaining a sum of Rs. 10,000 by way of loan and executing an agreement of sale deed 13 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 not 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 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.

(3.) 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 their could not be any case of the lapse of earnest money.