MARNI VEERANNA CHOWDARY Vs. KANUMURI LAKSHMINARAYANA RAO

JUDGEMENT

(1.) Defendant is the appellants. The Court below has decreed the respondents suit for recovery of a sum of Rs. 10,000 being the unpaid purchase money with interest @ 12% per annum.

(2.) According to the plaint averments, the first plaintiff (The suit was originally filed by this plaintiff alone and, on his death pending the suit, his legal representatives were brought on record as plaintiffs 2 to 4) purchased an undivided 1/3 share in an extent of 15,000 acres agency area of Orissa State, under a sale deed dated 29-3-1961, from one B. Suryanarayana Rao. Out of the said 1/3 share, he sold half the share to the defendant under a registered sale deed dated 12-6-1962. Though the sale-deed recites that the entire consideration was received by the first plaintiff prior to the execution of the said deed, the defendant did not actually pay the said consideration either wholly or partly. According to the first plaintiff his house was mortgaged to the defendant under a mortgage deed dated 31-1-1955, for a sum of Rs. 3,500 and that his son also had obtained a loan of Rs. 1,000 under a promissory note, from the defendant. Both the said debts were to be discharged and the balance amount, if any left, was to be applied towards discharging the miscellaneous debts of the plaintiff. It is in the above circumstances, that the sale-deed dated 12-6-1962, recited that the first plaintiff has already received the consideration. The said arrangement is evidenced by the draft of the sale-deed prepared by the Notary, Sri M. Sitarama Rao. After the execution of the said sale, the first plaintiff and his co-sharers executed a Power of Attorney in favour of the defendant to resolve and settle the several disputes in respect of the said total extent purchased by them. The Government, as well as several tenants were asserting their own rights in respect of the said land. However, the said power of Attorney was later cancelled on the ground that the defendant was not taking active steps as contemplated by the parties. It is then stated that the first mortgagee of the plaintiffs house filed a suit, O. S. No. 115/1959, on the file of the sub-court. Kakinada, and brought the said house, to sale. After discharging his debt, the balance amount of Rs. 11,000 was lying in Court which was withdrawn by the defendant without any authority, taking advantage of the financial difficulties in which the first plaintiff and his family were then placed. Defendant induced the first plaintiff to sign certain papers agreeing to his (defendants) withdrawing the said amount, which the first plaintiff did in good faith and having regard to the fact that the defendant was a rich and highly influential person, and also because the defendant affirmed on solemn oath that he would make over the amount withdrawn by him from the Court, to the first plaintiff. However, the defendant failed to so hand over the amount, whereupon the first plaintiff was obliged to issue a notice dated 5-10-1967, to which the defendant sent a reply dated 24-10-1967, repudiating the first plaintiff claim. The first plaintiff reiterated that no amount whatsoever was paid to him under the sale-deed dated 12-6-1962, and hence the defendant is liable to pay the same along with interest. The suit was filed in forma pauperis. Schedule A appended to the plaint mentions the names of eight villages wherein the said land is situated.

(3.) Defendant denied any knowledge of sale-deed under which the first plaintiff and his co-sharers purchased the said extent of 15,000 acres and also of the disputes, if any, between them and the Government and/or tenants. According to him, the first plaintiff offered to sell half the share in his 1/3 undivided interest and that he purchased the same for due consideration which was paid by him to the first plaintiff on 22-5-1962. He denied the truth of the plaintiffs averment that the money due to him under a mortgage and a promissory note executed by the first plaintiff son was agreed to be set off against the said consideration. He also denied the allegation that the draft sale deed contained any recital which evidenced such an arrangement between the parties, or that the said recital was scored out at his instance. He, however, admitted that the first plaintiff and his co-sharers executed a Power of Attorney in his favour with a view to raise huge funds to commence the work of mining the ores from the said land. Since the defendant could not devote proper attention to the said matter on account of his other affairs, there was some delay on his part in arranging the finances, and when he was about to go to Bombay and Delhi to raise the necessary funds, the first plaintiff and his co-sharers revoked the Power of the withdrawal of money lying to the credit of O. S. No. 115/1959, on the file of the Sub-Court, Kakinada, he pleaded that he withdrew the said amount towards the money due to him under the mortgage and that, he did so only after the first plaintiff and his son stated before the Court that the defendant is entitled to receive the said amount. He denied all other allegations made in the plaint. He also raised a plea of limitation.