BIJOY KUMAR CHATTERJEE Vs. MINOR PRADIP KUMAR DUTTA

JUDGEMENT

(1.) This is the appeal by the appellant against the judgment and decree passed by Shri T.K. Ghosh, learned Assistant District Judge, 2nd Court, Hooghly on 31-5-88 in Title Suit No. 50 of 1982.

(2.) The facts leading to the instant appeal may briefly be narrated thus. The plaintiffs presently the respondents instituted a suit for specific performance of contract, delivery of possession of the suit property after execution of the sale deed and mesne profits against the defendants. In a nutshell the case of the plaintiffs as made out in this plaint is that the suit property originally belonged to one Amarnath Chatterjee of 487, Circular Road, P.O. & P.S. - Shibpur, District - Howrah who possessed the same on payment of annual rent to the State and taxes to the Uttarpara-Kotrang Municipality. He intended to sell the suit property. Plaintiff No. 2 came to know about his intention and intended to purchase the suit property in her name and also in the name of plaintiff No. 1 who is her minor son for the benefit and interest of plaintiff No. 1. Plaintiff No. 2 proposed to purchase the suit property from the said Amarnath Chatterjee whereupon the latter agreed to sell the suit property to the plaintiffs at a consideration of Rs. 40,000/- which was the market value of the property existing at the relevant point of time. The plaintiffs agreed to purchase the suit property at the same price. The original owner Amarnath Chatterjee executed an agreement for sale of the suit property in favour of the plaintiffs on receiving a sum of Rs. 501/- as an earnest money out of the total consideration of Rs. 40,000/- on 9-12-81. It was agreed upon between the parties that the original owner would execute and register a sale deed in favour of the plaintiffs within three months from the date of execution of the said agreement on receiving balance of consideration of Rs. 39,499/-. Defendant No. 1 was an attesting witness in that agreement for sale. The original owner Amarnath Chatterjee handed over the tax receipts, annual rent receipts, R.S. Record-of- Rights and his purchase deed to the plaintiffs through Shri Sunil Kumar Dutta, the father of plaintiff No. 1 and the husband of plaintiff No. 2 in the first week of January, 1982. Unfortunately within a few days after execution of the agreement for sale the said Amarnath Chatterjee expired. Plaintiffs then requested defendant No. 1 to execute the sale deed in their favour in terms of the said agreement for sale after receiving the balance of consideration. Defendant No. 1 was not the only heir of the original owner but he had disclosed that he would alone receive the balance of consideration and would execute and register the sale deed. But defendant No. 1 did not execute the sale deed in favour of the plaintiffs whereupon the plaintiffs through their advocate served notice upon defendant No. 1 expressing their readiness and willingness to purchase the suit property as per the terms of the agreement. Inspite of receipt of the said notice defendant No. 1 had refused to execute the sale deed in favour of the plaintiffs. Defendant No. 1 sent a reply through his authorised agent to the plaintiffs denying execution of any contract by his father. The plaintiffs sent further notice dated 24-3-82 to defendant No. 1 under registered post with A.D. requesting defendant No. 1 to execute the sale deed in their favour. Defendant No. 1 did not give any reply to that notice. Thereafter the plaintiffs served another notice dated 13-5-82 upon the daughter of the original owner under registered post with A.D. In spite of receipt of the said notice she was reluctant to reply showing acceptance to perform their part of the contract. The plaintiffs were and are willing to perform their part of the contract. They are always ready and willing to pay the balance of consideration money to the heirs of the said Amarnath Chatterjee for execution and registration of the sale deed.

(3.) The suit has been contested by defendant No. 1 by filing the written statement wherein the material allegations contained in the plaint have been denied. It has been averred inter alia that the plaintiffs have no cause of action to file this suit that the suit is not maintainable in its present form, that the alleged contract being itself a void contract cannot be enforced and that the alleged contract was obtained fraudulently by practising undue influence upon the executor Amarnath Chatterjee. As per the case of defendant No. 1 at the time of the alleged execution of the deed of agreement the said Amarnath Chatterjee was not of sound mind and had no sense to understand anything. He was suffering from several diseases. He died on 15th January, 1982. The specific case of defendant No. 1 is that his father Amarnath Chatterjee took loan of Rs. 500/- from the husband of plaintiff No. 2 and for the purpose of security the latter obtained signature of the said Amarnath Chatterjee and the signature of this defendant on the blank stamp papers. The said Amarnath Chatterjee was rather compelled to execute the alleged deed as per dictation of the husband of plaintiff No. 2 but he had not the meatal capacity to understand anything properly. The father of plaintiff No. 1 managed to obtain signature of the said Amarnath Chatterjee on the stamp papers and some documents. Further case of defendant No. 1 is that the original owner never intended to sell the suit property to the plaintiffs and the plaintiffs are not entitled to purchase the suit property enforcing the alleged agreement for sale. The original owner did not know the contents of the agreement. He put his signature on the blank paper as security for the said loan of Rs. 500/-.