NALINI MAJI Vs. MRITUNJOY ADHIKARY

JUDGEMENT

(1.) The present appeal is directed against the judgement and decree dated 17th December, 1988 passed by the Learned Additional District Judge, 2nd Court, Howrah in Title Appeal No. 5 of 1987 affirming the judgement and decree dated 28th November, 1986 passed by the Learned Assistant District Judge, 2nd Court, Howrah in Title Suit No. 37 of 1985.

(2.) The appellant, defendant no. 2 Smt. Nalini Maji has contended that the defendant in Title Suit No. 37 of 1985 agreed to sell the disputed plot of land measuring 3 cottahs to the plaintiff Mritunjoy Adhikary and received earnest money on different dates amounting to a total sum of Rs. 8,800/- out of total consideration of Rs. 21,600/- and issued receipt for self and his mother defendant no. 2 acknowledging such receipt. Though the plaintiff is now willing and ready to pay the balance amount of consideration and perform his part of contract the defendants are not receiving the balance amount and executing any sale deed in his favour. The defendant no. 1 contested the suit and claimed that his mother defendant no. 2 is the actual owner of the land and as such he cannot make any such contract for sale of the suit property on behalf of the real owner, i.e., his mother but he has admitted that he has received an amount of Rs. 8,800/- from the plaintiff in connection with the marriage ceremony of his daughter as loan. He has also claimed that the value of the suit property at the relevant time was much more than the so called consideration of Rs. 21,600/-. After considering the evidence adduced by the parties Learned Trial Court on 28.11.1986 decreed the suit on contest against the defendant and directed the plaintiff to deposit a sum of Rs. 12,800/- in the name of defendant no. 2, i.e., the actual owner of the suit property by 21.01.1987. It was further directed that on such deposit being made the defendant no. 2 will execute a Kobala by 31.01.1987 in favour of the plaintiff in respect of the suit property described in the schedule to the plaint in default the Court shall execute the Kobala on behalf of the defendant no. 2 and in that event the defendant no. 2 will be allowed to withdraw the amount after execution and registration of the Kobala.

(3.) Being aggrieved by and dissatisfied with such order the defendant no. 2 preferred an appeal which was registered as Title Appeal No. 5 of 1987 and disposed of by the Learned Additional District Judge, 2nd Court, Howrah on 17.12.1988. While considering the appeal the Learned First Appellate Court found that though the son, i.e., the defendant no. 1 was denying receipt of any earnest money for sale of the disputed property on behalf of his mother and execution of the agreement for sale (exhibit 2), his mother who was examined as DW 1 has admitted the liability. She has clearly stated that her son defendant no. 1 did all works relating to her property with her consent and she admitted that her son received earnest money of Rs. 5,600/- from the plaintiff with her consent. So the Learned First Appellate Court held that the defendant no. 1 son of the defendant no. 2 who happens to be the real owner acted all transactions as an agent of his mother and as such the agreement as in exhibit 2 is binding upon both the mother and the son. Therefore, the Learned First Appellate Court dismissed the appeal on contest in favour of the contesting plaintiff/ respondent no. 1 and affirmed the judgement and decree of the Learned Trial Court.