TRIBENI PD RASTOGI Vs. BASUDEO PD RASTOGI

JUDGEMENT

(1.) This is a plaintiff's appeal, who instituted the suit for delivery of possession over a house which he purchased under a sale deed executed in his favour by the defendant on 1-2-1965 for a total consideration of Rupees 10,000/-. According to the plaintiff's case, he had already paid to the defendant a sum of Rs. 4,400/- and indicated his readiness to deposit the balanca amount of consideration, viz., Rs. 5,000/-, in favour of the defendant, which the defendant was avoiding to receive in spite of his repeated efforts.

(2.) According to the plaintiffs case, the defendant was in urgent need of a certain amount of cash money and accordingly he entered into an oral agreement with the plaintiff for the sale of the suit house for the consideration mentioned above. A sum of Rs. 400/- was advanced by the plaintiff to the (defendant on 31-1-1965 for purchasing the necessary stamps for drawing up the sale deed The sale deed was duly executed by the defendant on 1-2-1965 and was presented for registration on the same day. A sum of Rs. 1,000/- was paid by the plaintiff to the defendant in presence of the Sub-Registrar, Jhabua, towards the consideration which fact is evidenced by the endorsement of the Sub-Registrar. According to the further case of plaintiff, the defendant expressed his necessity for a further sum of Rupees 3,000/- on 8-2-1965. The plaintiff, however is said to have offered the defendant the entire balance of the consideration, viz. Rs. 9,000/- and to have the exchange of equivalents but the defendant pretended to be in the need of only a sum of Rs. 3,000/- and refused to accept the entire balance of the consideration on the pretext that he would require the balance amount afterwards at the time of the marriage of a daughter in the family and if he received the amount at that moment, it might get spent otherwise. In this way, the plaintiff is stated to have paid a sum of Rs. 4400/- to the defendant. The defendant is said to have written a post card (Exhibit I) to the plaintiff on 20-2-1965 asking him to come to Sasaram on 6-3-1965, together with the necessary receipt for the exchange of equivalents with the sum of Rs. 5600/-, but when the plaintiff went to Sasaram he did not meet the defendant. The defendant, according to him, avoided to receive the balance of the consideration on some pretext or the other and, therefore, he instituted the suit in question on 5-11-1965.

(3.) In his written statement, the defendant denied the transaction altogether. According to his case, his son Manik Chand was a vagabond and in order to save the property from his reckless behaviour, under the advice of his friends and keeping the plaintiff in confidence, the sale deed in question was executed which is absolutely farzi in nature. He also absolutely denied the receipt of any consideration. With respect to the payment of the sum of Rupees 1000/- before the Registrar, he pleaded that it was his money which was handed over to the plaintiff.