HARI RAM Vs. DAU DAYAL

JUDGEMENT

(1.) THE defendant aggrieved of the judgment and decree dated 7.8.1987 passed in civil suit No. 7A of 1983 by Second Additional Judge to the Court of District Judge, Morena, preferred a first Appeal No. 37/1987, which having been dismissed by the learned Judge of this Court on 9.4.1991, has filed this appeal under clause 10 of the Letters Patent.

(2.) FACTUAL matrix giving rise to this appeal in brief is thus: A three storeyed house situated in Rui Mandi, Morena, bearing Municipal House No. 46, Ward No.3, was owned and possessed by the plaintiff Kanhaiyalal, who executed a nominal registered sale deed on 16.2.1967 (Ex.P/1) in favour of the respondent/defendant No.2, Nand Ram, as a security for a consideration of Rs. 10,000/ -, which was to be repaid within a period of three months by the plaintiff to the defendant No.2. As the defendant No.2 immediately needed his money back, which the plaintiff could not repay, the defendant No.2 executed a registered sale deed on 21.3.1967 (Ex. P/2) in favour of the defendant No.1 for a consideration of Rs. 26, 000/ -. Out of the said amount, Rs. 10, 000/ - were received by the defendant No.2, and rest of the amount of Rs. 16,000/ - was received by the plaintiff. Though the document was executed by Nand Ram as vendor, the plaintiff also signed the document, Ex. P/2, as consent -giver (Sahamatikarta). One of the recitals in this Ex. P/2 relates to the document, Ex. P11, stating therein that there was a contemporaneous oral agreement between the parties that if the house could be sold for an amount exceeding Rs. to, 10, 000/ -, then the vendee shall execute the sale deed in favour of the person, to whom the house could be sold at the instance of Kanhaiyalal and, that the excess amount shall be received by Kanhaiyalal, and it was in that way that Rs. 10,000/ - were received by Nand Ram and Rs. 16,000/ - were received by Kanhaiyalal. To that effect there is also an endorsement on Ex. P/2 of the Sub -Registrar, confirming the payment of Rs. 10,000/ - and Rs. 16,000/ - in the aforesaid manner. On the same day, vendee Hari Ram, as first party, executed another document, an agreement to sell (Ex. P/3) in favour of Kanhaiyalal as second party and Nand Ram as third party in the presence of two attesting witnesses, namely, Mani Ram (PW 3) and one Dwarika Prasad, agreeing therein to sell the house to Kanhaiyalal on payment of Rs. 26,000/ -. It was also agreed therein that the vendee shall not be entitled to any interest on the said amount of Rs. 26,000/ - and in lieu of interest the vendee shall be entitled to the rent at the rate of Rs. 40/ - per month from Kanhaiyalal. A time limit of 15 years was stipulated between the parties for execution of the sale deed by the vendee in favour of Kanhaiyalal.

(3.) THE defendant No.1 denied the claim and contended that the sale dated 21.3.67 was not a nominal sale, but was an out and out sale. The defendant also denied the execution of the agreement to sel1 and contended that the document is col1usive, fabricated and forged one, as the plaintiff and the defendant No.2 and the two attesting witnesses are related to each other. An additional plea was raised that the plaintiff, as a tenant in a part of the suit house on monthly rent of Rs. 40/ -, which was not paid, on making a demand of arrears of Rs. 2,400/ -, fabricated the document of agreement to sell and instituted this suit, which deserves to be dismissed.