Harihar Prasad vs Smt. Basant Kumari Gupta and Others

D.M. Dharmadhikari, J.—This is an appeal preferred by the Defendant No. 1 applicant against the decree in the sum of Rs. 25,700 with six per cent interest pendente lite granted by the court below:

The Plaintiff/respondent No. 1, Basant Kumari, filed the suit giving rise to this appeal against the Defendant No. 1 and other Defendants/respondents Nos. 2 to 7, claiming the above amount as the sale consideration which was in fact, according to her payable to her but was alleged to have been received by the present Appellant from the Respondents No. 2 to 7, who were the purchasers of her agricultural lands. The case set up in the plaint, in brief, is that the Plaintiff and the Defendant No. 1 are real sister and. brother . The properties, which were subject of sale by her in favour of the Respondents No. 2 to 7, were alleged to be the properties received by the Plaintiff from her father under a gift deed dated 2-8-1963. It is not disputed that between the Plaintiff and the Defendant No. 1 there was a litigation with regard to the said properties and subject matter of the gift, which ended in second appeal in the High Court where the Appellant withdraw his appeal resulting in confirmation of the decisions of the court below that the Plaintiff had derived valid title to the lands covered by the gift deed.

Further case set up by the Plaintiff in the plaint is that in February, 1981 the Defendant No. 1 approached the Plaintiff and informed her that some persons in the village were willing to purchase the lands and the prices offered were good. According to the Plaintiff, on the suggestions of the Defendant No 1, she agreed to sell her property at the rate of Rs. 2,000/- per acre from khasra No. 283 area 13.53 and at the rate of Rs. 1,180/-per acre from Khasra No. 72 area 1.14 decimal. The Plaintiff knowledges to have received a sum of Rs. 1,000/- as earnest money or Rs. 1,500/- was deposited with the Plaintiff by one of the purchasers i.e. Respondent No. 7, Nandlal Lodhi, In this manner she admitted to have received a total sum of Rs. 2,500/- as earnest money.

According to the Plaintiff remaining agreed sale consideration of Rs. 25,700/- was to be received at the time of registration of the sale deed. It was her case, thereafter that on 26-6-1981 she went along with her husband for registration to Durg where the Defendant No. 1 had also come to join in executing the sale deeds. The Plaintiff pleaded that he demanded from the purchasers the balance amount of consideration for the sale and she was told that the same was paid to the Defendant No. 1 and the Defendant No. 1 agreed to have received the sale consideration and promised to pay the same to her at any time whenever demanded. The Plaintiff is said to have trusted the defendnat No. 1, being her brother, and executed and got registered the sale deeds in favour of the Defendants No. 2 to 7.

Since the sale consideration was, later, not paid by the Defendant No. 1 inspite of oral demand and written notice (Ex.P/1), the present suit was filed jointly against the Appellant and the purchasers i.e. Respondents No. 2 to 7 for reaslising the balance amount of sale consideration.

The Appellant/defendant No. 1 contested the suit and in his written statement denied to have received any sale consideration for the sales from the Respondents No. 2 to 7. It was stated in the written statement by the Defendant No. 1 that he signed the sale deed only nominally because, although the title was with the Plaintiff by virtue of the gift deed and judgment in her favour of the court, in the litigation that had ended in her favour, he was requested and he agreed to sign the sale deeds due to the paid they in the revenue papers both of them were jointly recorded on the lands. The Defendant No. 1 denied that the Respondents No. 2 to 7 paid him the balance sale consideration and he ever pormised to the Plaintiff to repay the same to her.

The Respondents No. 2 to 7 jointly filed a separate written statement and plea in para 6 there in of having paid the agreed sale consideration in presence of the Registrar to the Plaintiff and the Defendant No. 1, who thereafter were stated to have signed the sale deeds.

The Plaintiff sought to prove her case by only examining herself. She supported her version, as pleaded in the plaint, that trusting her brother that he had received sale consideration, she agreed to sign the sale deeds on his promise that the sale consideration received by him would be paid to her.

One of the purchasers, Respondent No. 7 Nandlal, also entered the witness box on behalf of the Respondents No. 2 to 7 and gave a version in his deposition that he had paid a sum of Rs. 25,700/- being the total balance sale consideration of the land purchased by him and other Defendants/purchasers, to the Defendant No. 1 Nandlal then stated in his testimony that to his knowledge the Defendant No. 1 deposited the sale consideration received by him for the sale deeds in question in the branch of Bank of India at village Dhamdha. When cross - examined on behalf of Defendant No. 1, on this fact as to why he did not mention it in his written statement, in answer, he explained that he had mentioned this fact to his lawyer but did not know why the same was not mentioned in the written statement. The Defendant No. 1 in support of his ease examined himself and stated that on 25-6-1981 he had also executed sales of agricultural lands exclusively owned by him, The sale deeds of which are not marked In evidence,

The case of the Defendant No. 1 was that he had received separate sale consideration from his purchasers Kajrl Bai, Kallram Sahu and Bano, which he had deposited In his account in the Bank of India at Dhamdha on 26-6-1981. The Defendant No. 1 denied that he had ever taken with him on motor - cycle the Respondent No. 7 Nandlal, to the branch of the Bank of Dhamdha. He also specifically denied to have received any sale consideration from Nandlal or other Respondents in respect of sale deeds of the agricultural lands sold by the Plaintiff. He reiterated that he signed the sale deeds. only on Plaintiff''s request made through Nandlal Lodhi and he agreed to sign sale deeds executed by him with respect to him, exclusive lands.

On the basis of the above pleadings and oral evidence the trial court decreed the suit by believing the testimony of Respondent No. 7, Nandlal. The trial Court In arriving at a finding in favour of the Plaintiff and against the Defendant No. 1 drew an adverse inference for reasons stated in para 10 of its judgment that the Defendant No. 1 did not produce the pass - book of Bank of India, Branch - Dhamdha, to contradict the version of Nandlal in his deposition that the sale consideration in respect of the sale deeds executed by Plaintiffs was paid by the purchasers to the Defendant No. 1 who deposited it in the Bank.

Learned Counsel appearing for the Appellant Defendant No. 1 assailed the judgment and decree firstly on the ground that the testimony of Nandlal ought not to have been believed by the trial court and in any case he strongly criticised the trial court in drawing adverse inference against the Defendant No. 1 for not producing his pass - book of the Branch of Bank of India, Dhamdha. In support of his above contention learned Counsel pointed our to me that Nandlal filed a joint written statement with other purchasers (respondents No. 2 to 7) and there did not take a specific plea that the sale consideration of the lands belonging to the Plaintiff was paid to. the Defendant No. 1, alone who deposited the same in Bank of India at Dhamdha. The learned Counsel for the Defendant No. 1, therefore, submitted that, in the absence of the above pleadings, either in the plaint or in the written statement of the Defendants No. 2 to 7, the Defendant No. 1 had no opportunity to rebut the case set up of the other side and to produce the Bank account. It was submitted that Nandlal sprang a surprise by completely changing his version in his deposition over the version he had given in the written statement and no adverse inference was liable to be drawn against the Defendant No. Nandlal in his joint written statement, as pointed out above, had clearly pleaded that the agreed sale consideration was jointly paid to both Plaintiff and the Defendant No. 1, who having received the same executed the sale deeds and put their signature on them. It is only, in his testimony that he came forward with a new story that the Defendant No. 1 received entire balance amount of sale consideration and deposited the same, in his presence and to his knowledge, in the Bank of India Branch at Dhamdha.

The second submission of the learned Counsel for the Appellant is that there is a presumption u/s 60 of the Registration Act with regard to the correctness of endorsement made by the Registrar on the sale deeds at the time of execution and registration of the documents. This presumption attaching to the due execution and registration of sale deeds was to the effect that the agreed sale considerations stated in the sale deeds had been received by the executants to the sales. According to the counsel for the Defendant No. 1/appellant, there is no evidence so strong as to rebut the above presumption arising u/s 60 of the Act. of the Act. Reliance is placed on AIR 1948 110 (Nagpur) and Mst. Susila Sa and Others Vs. Durju and Others,

Commenting generally on the conduct and deposition of the parties, the counsel for the Appellant submitted that the Plaintiff should not be readily believed that she agreed to sign the sale deeds without receiving the sale consideration only on assurance and promise of her brother that the had received the same on her behalf, more so, it was highly unbelievable, in the background of a long drawn litigation between them on the subject of gift deed by their father in her favour. The counsel also submitted that when earnest money was received by her, which was a very small amount, it was not natural that she would not have insisted on payment of huge amount of balance consideration to herself or to her husband.

The counsel for the Respondents on the other hand supported the judgment and decree stating that this was a case where an innocent woman has been duped only, because she reposed trust and confidence on her reral brother. It was stated that relations between the parties were not strained , as was sought to be pointed out by the other side, because litigation between them had ultimately ended in a compromise in the High Court and the Defendant No. 1 had got his appeal dismissed as withdrawn. The negotiations with regard to the sales were made through the Defendant No. 1 and Nandlal (defendant/respondent No. 7) had paid sale consideration to him for payment to her. The counsel for the Respondents, therefore, submitted that this is a fit case in which the Plaintiff should be saved from being duped by the cuning tactics of the Defendant No. 1.

At the time of hearing of the case on 12/12/1990 Shri S.C. Pandey, counsel present for the purchasers (respondents No. 2to 7) did not at all address the Court. 1, therefore, re - fixed the case by order dated 28-12-1990 to grant him an opportunity to address the Court on the question as to why a decree be not passed in favour of the Plaintiff against the Respondents No. 2 to 7 and grant her the alternative relief claimed by her in the suit.

Learned Counsel for the purchasers (respondents No. 2 to 7), whom I separately heard on 7-1 -1991, urged that this is hot a fit case in which a decree can be passed against his clients by exercising powers under Order XLI, Rule 33 of the Code of Civil Procedure. Reliance is placed on AIR 1939 86 (Privy Council); Nirmala Bala Ghose and Another Vs. Balai Chand Ghose and Others, and Chalasani Subbarayudu Vs. Kalagara Venkata Subbarao and Others, Learned Counsel for the purchasers also submitted that there are no allegations made in the plaint against the purchasers and the claim is made only against the Defendant No. 1. It is only a relief in the alternative which was claimed against the Defendants No. 2 to 7.

Having considered the respective cases set up by the Plaintiff as real seller, the Defendant No. 1 as a nominal seler and of Defendant. No. 7, Nandlal, being one of the purchasers representing all the remaining purchasers (respondents No. 2 to 6), I have formed an opinion that his is a fit case for passing a joint decree both against the Respondent. No. 1 and Respondent No. 7 for the reason mentioned hereunder, It is not seriously disputed that the suit lands Were properties belonging exclusively to the Plaintiff who had dervied title to the same under a gift deed from her father. The Plaintiff alone was, therefore, entitled or receiver the entire sale consideration from the purchasers. The Defendant No. 1 in his deposition did not dispute the above fact that the entire balance consideration was payable to the Plaintiff. It may, however, be seen that in the written statement after denying to have received any balance price for the sales in question, the Defendant No. 1 took a plea that the Plaintiff had reatained some moveable properties of their father and was also liable to repay the loan taken by her from her father. It, thus, appears that the Defendant No. 1 had some money to recover from the Plaintiff.

The trial court, In my opinion, was fully justified in holding that the Plaintiff reposed full confidence in Defendant No. 1 and relying on his information that he had received money on her behalf signed the sale deeds at the time of registration. I am hot at all impressed by the agrument of the learned Counsel for the Defendant No. 1 that It was most unnatural on her part to have placed reliance on the oral information of the Defendant No. 1 of having received money on her behalf when relations between them were not good it has come on record that the litigation between the Plaintiff and the defendent No. 1 concerning gift deed in her favour from her father had ended in the High Court by withdrawal of second Appeal by the Defendant No. 1 whatever may be the reason for the same, whether it was a compromise or not it is clear that relationship between them had by that time to a great extent improved. The Defendant No. 1 also could not deny the fact that he had agreed to sign the sale deed to be executed by her. The explanation of the Defendant No. 1 in the witness box is only that on being approached by the defendent No. 7, Nandlal, for signing the sale deeds, he agreed for it provided the Plaintiff agreed to sign the sale deeds to be executed by him on the same day. It has come on record that although the suit lands exclusively belong to the Plaintiff in revenue records both the Plaintiff and Defendant No. 1 continued to be jointly recorded. It was, therefore, natural on the part of the purchasers to have insisted on signature of the Defendant No. 1 also on the sale deeds along with the Plaintiff, for obtaining a clear title. The Plaintiff, therefore, could not be disbelieved that she believed the statement of the Defendant No. 1 at the time of registration that he had received the balance consideration on her behalf. The trial court committed no error in believing the Plaintiff in that respect. The trial court, in my opinion, also committed no error in holding that the Defendant No. 1 could have produced the Pass- Book of the Bank to demonstrate that he had only deposited the sale price received by him of the sale of his lands and that of his son and deposited no money in addition to the above amount. It may be noted that Nandlal, Defendant No. 7, who stated that to his knowledge the balance sale consideration was deposited in the Bank by the defendent No. 1 was examined on 21-2-1986 whereas the Defendant No. 1 was examined on 10-7-1986. Thus,, there was ample time for the Defendant No. 1 to have produced his pass book to falsify the alleged false statement of the Defendant No. 7, Nandlal. I am also not at all convinced by the argument on behalf of the defendent No. 1 that this fact stated by Nandlal should have been made part of his pleadings in the written statement. Whether the consideration has been paid or not was the question mainly one of evidence and not of pleadings so far as the pleadings in the written statement jointly filed by the Defendants No. 2 to 7 are concerned, there are no clear averment with regard to the payment of balance consideration to one of the parties. But that did not at all prevent the Defendant No. 1 from producing the best evidence to discredit the testimoney of the Defendant No. 7, Nandlal. The trial court committed no error in drawing adverse inference against the Defendant No. 1 for not producing the Bank Pass-book.

So far as the Defendant No. 7, Nandlal, is concerned, who admittely collected balance sale consideration from all other purchasers, Defendants No. 2 to 6, and alleged to have paid it only to the Defendant No. 1,1 find him as totally untruthful witness and unreliable. He filed and verified a written statement jointly filed by him along with the Defendants No. 2 to 6 and did not take a clear plea that he paid the balance consideration in entirety only to the Defendant No. 1 which was deposited, to his knowledge by the Defendant No. 1 in the State Bank of India at Dhamdha Branch Nandlal Defendant No;7, has tried to set up a different case in his testimony than what was pleaded by him in the written statment. In his deposition he admitted that when he alongwith the Defendant No. 1 reached Durg for execution and registration of sale, he had gone all alone to the residence of the Plaintiff for making a request to her to attend the registration office for due execution of the sale deeds. The Plaintiff was alleged to have demanded from the Defendant No. 7 the balance amount of sale consideration. According to the Defendant No. 7, thereupon, the - Defendant No. 7, Nandlal told her that he had made the payment to the Defendant No. 1, who had deposited it in the Bank at Dhamdha. He thereafter in cross- exmination admitted that this fact was told by him also to his lawyer who drafted the written statement but he was unable to explain why there are no clear statement to that effect in the written statement. This important omission in the written statmentjointly filed and verified by Nandlal, Defendant No. 7, renders the testimony of Nandlal highly suspicious.

From the testimonies of the Defendants No. 1 to 7, an impression has been created that both of them gave a false information to the Plaintiff and induced her to sign the sale deeds at the time of registration and pocketed the balance consideration amongst them. It cannot be lost singht of fact that the Defendant No. 1 was all through claiming title to the suit lands and a share in immovable and movable properties said to have been jointly inherited from their father. The defendent No. 1 stated to have joined the sale only nominally and only because he was jointly recorded in revenue papers on the suit lands with the planitiff. He agree to sign the sale deeds to be executed by the Plaintiff and of which she was the real owner only because as stated by him, the Plaintiff had agreed to sign the sale deeds to be executed by him and his son. The Defendant No. 1 has, however, not proved that in the sale-deeds executed by him on the same day the Plaintiff had signed on them along with him. In the file of unproved documents a photostat copy of few sale deeds executed by the son of the Defendant No. 1 in favour of other purchasers are on record but in none of them there are signatures of the Plaintiff. The Defendant No. 1 therefore, cannot be believed that he singed the sale deeds to be executed by the Plaintiff on a reciprocal promise by her to sign sale deeds to be executed by the Defendants No. 1 and his son. It appears that as Nandlal, Defendant No. 1, had approached him for signing the sale deeds jointly with the Plaintiff, he must have charged some consideration from Nandlal for signing the sales. In any case, as found by the trial court and affirmed by me in this appeal the Defendant No. 1 is guilty of misinforming the Plaintiff at the time of registration of sale deeds that he had received the balance consideration from the Defendant No. 7, Nandlal on Plaintiff''s behalf. The Defendant No. 1, Harihar Prasad alias Bhagwati Prasad, therefore, cannot disown his liability for payment of sale consideration to the Plaintiff.

The Defendant No. 7, Nandlal, was the purchaser who was representing all the remaining purchasers i.e. the Defendants/respondent No. 2 to 6, and had admittedly collected the requisite amount of balance sale consideration from each of them. As a buyer he was duty bound in law to pay or tender the balance amount of sale consideration only to the Plaintiff who was known to all the parties to be the real owner of the property. This legal liability of the buyer is contained In Section 55(5) (b) of the Transfer of Property Act which reads as under:

In the absence of a contract to the contrary the buyer and the seller of immovable property respectively are subject to the liabilities, and have the rights, mentioned in the rules next following, or such of them as are applicable to the property sold: (5) The buyer is bound:

(b) to pay or tender, at the time and place of completing the sale, the purchase money to the seller or such person as he directs; provided that where the property is sold free from incumbrances, the buyer may retain, out of the purchase money, the amount of any incumbrances on the property existing at the date of sale, and shall pay the amount so retained to the persons entitled thereto.

On the fact of the above provisions and the legal liability place on the Defendant No. 1 as one of the buyers representing all other buyers, the Defendant No. 7 could not have tendered or made payment of the entire balance sale considereation to the Defendant No. 1, who was merely, a nominal seller. It was the legal duty and responsibility of the Defendant No. 7 to have deposited or tendered the whole sale consideration only to the Plaintiff at the time of registration of the documents. The Plaintiff has been, thus, duped and deceived by the Defendant No. 1 and the Defendant No. 7, both, in inducing her to sign the sale-deeds and in depriving her of her legitimate dues under the transactions. The Defendant No. 1 and the Defendant No. 7 both misinformed the Plaintiff, at the time of signing of the sale deeds and their registration, that the whole balance sale consideration has been deposited through the Defendant No. 1 in the State Bank Branch at Dhamdha. In my opinion, both, the Defendant No. 1 and the Defendant No. 7, therefore, are jointly liable to make payment of the balance sale consideration to the Plaintiff. Interse between the Defendant No. 1 and 7, in the absence of any evidence as to how much of balance consideration was pocketed or illegally retained by whom, I apportion their liability half and half.

The presumption arising u/s 60 of the Registration Act on endorsement made by the Registrar on the sale deeds regarding prices exchanged between the parties stands rebutted by the evidence on record discussed above.

Leanred Counsel for the purchasers made strenuous efforts to point out that, in appeal by the defendent No. 1 a against a decree granted in favour of the Plaintiff (respondent No. 1) it is not open to me to pass a decree against the other Defendants. In my opinion, however, to do complete justice between the parties the provisions of Order XLI, Rule 33 of the CPC permit me to adopt such a course. The commentaries of Chitaley on the Code of Civil Procedure, Volume 5, Page 360 illustration (b) under Order XLI, Rule 33, Note 6, may be seen which fully supportrs the course adopted by me in this case:

(b) sues B and C for a certain sum of money. The suit is decreed against B and dismissed against C. B appeals making A and C Respondents to the appeal. A neither appeals nor filed cross-objections against the decree dismissing his suit against C. The Appellate Court considers that C and not B is liable. It can, while reversing the decree against. B, pass a decree against C. If the Appellate Court considers that both B and C are liable, it can vary the decree accordingly.

In view of the dicussion aforesaid, the appeal only partly succeeds and is hereby partly allowed. The suit of the Respondent No. 1/plaintiff is decreed both against the Appellant/defendant No. 1 and the Defendant/respondent No. 7. They are held liable to pay 1/2 amount each i.e. Rs. 12,850/-. The amount shall carry interest at the rate of Rs. 6 per cent per annum from the date of the suit as was granted by the court below. In the circumstances I direct that the Appellant/defendant No. 1 and the Defendant/respondent No. 7 shall suffer their own costs and pay proportionate costs to the extends of decree against them.

Since the sale deeds in question have been registered on a stated consideration much below the actual consideration which was passed between the parties, a copy of this judgment and decree be sent to the Collector, Durg and the Registrar for levying the additional amount of stamp duty and registration fee in accordance with law.