KAVERI MEWANA Vs. SUBRATA RAY

JUDGEMENT

(1.) This is the Plaintiffs' second appeal. He had filed suit for praying relief for specific performance on the basis of the alleged unregistered deed of agreement dated 6.1.1980.

(2.) The Plaintiffs' case in brief is that the suit land being TISCO Holding No. A of Imperial Bank Area, P.S-Bistupur, Jamshedpur belonged to Dr. Surendra Mohan Dutt. He had acquired the said suit holding by virtue of the registered deed of lease dated 2.4.1937. Thereafter, he had constructed a double storeyed building over the suit land. Dr. S.M. Dutt died leaving behind his widow-Smt. Bive Dutt and two daughters, namely, Amita Roy and Amita Guha (Defendant Nos. 1 & 2 respectively). The said two daughters had written to the TISCO Ltd. to enter the name of their mother Smt. Bive Dutt on the record of TISCO in place of Dr. S.M. Dutt as far back as on 4.1.1962. The Plaintiff S.N. Budhdeo (since deceased) and others came in occupation of a portion of the suit property as monthly tenant under Smt. Bive Dutt on pay lent of rent The Defendant Nos. 1 & 2 ware residing at Calcutta with their respective family members. Smt. Bive Dutt was alone residing at Jamshedpur. Looking to her old age, she Intended to sell the suit property to the Plaintiffs. The Plaintiffs agreed to purchase the suit property on consideration amount of Rs. 80,000/-, out of which Rs. 20,000/- was paid as earnest amount to Smt. Bive Dutt on 6.1.1980 and an unregistered deed of agreement for sale was executed on the same date. Rs. 60,000/- was the balance amount to be paid at the time of execution and registration of the sale deed. The Plaintiffs explained that due to old age of Smt. Bive Dutt, her hands were trembling and in her left thumb, there was an abscess due to some injury. Smt. Bive Dutt had thus put her right thumb impression on the alleged deed of agreement. The Plaintiffs were thus holding the said agreement for sale in respect of the suit land. But in the meanwhile, they came to know that the Defendant Nos. 1 & 2 sold the suit property to Defendant No. 3 Durga Prasad Sarawagi by virtue of the registered sale deed dated 26.5.1982 for a consideration of Rs. 2,50,000/-. It was alleged that the said sale deed executed by the Defendant Nos. 1 & 2 in favour of the Defendant No. 3 is wholly illegal, fraudulent and without any consideration and the same is not binding on the Plaintiffs. The Plaintiffs were always ready and willing to pay Rs. 60,000/- and perform the agreement of their part. The Defendant Nos. 1 & 2, who are the daughters and legal heirs of Smt. Bive Dutt, were bound by the said agreement.

(3.) The Defendants contested the suit and specifically denied execution of the said agreement in favour of the Plaintiffs. The Defendants claimed that the suit property belonged to their father and they have inherited the suit property. They never relinquished their interest in this suit property in favour of their mother. They off and on used to come to Jamshedpur and reside in the suit premises with their mother. Smt. Bive Dutt was a literate lady and she used to sign both in English and Bangala. She had withdrawn money from the Bank with her signature during the relevant period and the story of abscess in her left thumb or trembling of her hands is frivolous and baseless. They denied the Plaintiffs. claim that Rs. 20,000/- was paid as an earnest money to Smt. Bive Dutt. The Defendant Nos. 1 & 2 supported the sale deed executed and registered by them in favour of the Defendant No. 3 for consideration of Rs. 2,50,000,- to the notice and knowledge of the Plaintiffs. The Defendant Nos. 1 & 2 just before execution of the sale deed, had given power of attorney to the Defendant No. 3 and the Plaintiffs were Informed about the same. The Plaintiffs also used to remit the rent regularly till January 1982.