JOYRAM DAS Vs. SUDHIR KUMAR SEN

JUDGEMENT

(1.) This is a Plaintiff's appeal against the order of remand passed by the lower appellate court remitting the suit back to the learned trial judge for fresh decision after giving the Defendants an opportunity to pray for comparison of the disputed signatures appearing in exhibit Nos. 1, 2 and 2(a) with the admitted signatures of Tarapada Sen, since deceased, by an handwriting expert.

(2.) Title Suit No. 400 of 1982 was instituted in the court of the learned Munsif, Second Court at Jangipur, District: Murshidabad by this Plaintiff for specific performance of contract dated April 26, 1973. The Plaintiff alleged that the predecessor -in -interest of the Defendants, Tarapada Sen, desired to sell the suit property and the Plaintiff agreed to purchase the same at Rs. 6,000.00 (Rupees six thousand) only. On April 26, 1973 the said Tarapada Sen executed an agreement in favour of the Plaintiff after receiving a sum of Rs. 2,000.00 (Rupees two thousand) only as earnest money and it was settled that the Plaintiff was to pay the balance amount by Chaitra 1382 B.S. and the said Tarapada Sen would execute the sale deed in favour of the Plaintiff in respect of suit property. Subsequently, the Plaintiff paid slim of Rs. 1,000.00 (Rupees one thousand) only on two occasions and obtained receipts for such payments from the said Tarapada Sen. Tarapada Sen assured the Plaintiff that he would execute the deed of sale in favour of the Plaintiff when he would come round from his illness, but gradually the condition of Tarapada Sen deteriorated and he was confined to his bed. On Ashwin 29, 1382 B.S. the Plaintiff approached the said Tarapada Sen for getting the deed executed as early as possible and the said Tarapada Sen handed over to him a copy of the R.S. Khatian. As the Sub Registry Office was closed at the material point of time, the deed could not be executed. On Kartick 1, 1382 B.S. Tarapada Sen expired and after his death Plaintiff, approached his heirs and legal representatives with a request to execute the sale deed on receipt of the balance consideration. However, the heirs and legal representatives refused to execute the deed and in reply to the letter of the learned Advocate of the Plaintiff informed him that the said Tarapada Sen had executed a life interest deed in favour of Shrimati Kalidasi Dasi on Baisakh 21, 1381 B.S.

(3.) The Defendant Nos. 1 and 3 contested the suit by filing a written statement and denied all the allegations of the Plaintiff. It was asserted that the said Tarapada Sen never expressed his willingness to sell the suit property nor ever accepted any earnest money from the Plaintiff. The execution of the alleged binanama by the said Tarapada Sen was, also, denied and it was termed as fraudulent and collusive. It was contended that the valuation of the property was not less than Rs. 12,000.00 (Rupees twelve thousand) only and there was no occasion for Tarapada Sen to transfer the same to the Plaintiff.