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Judgment
The defendant in a suit for specific performance for sale is the appellant. The suit was filed by the first respondent/plaintiff on the allegation that
on 20.4.1998 he entered into Ext A1 agreement for sale of the plaint schedule property belonging to the appellant, the sale consideration was
Rs.3,50,000/-, out of which the respondent paid Rs.3,00,000/- on the date of the agreement and obtained possession of the property, the
transaction had to be completed in three months, in spite of demand by notice, she failed to execute the sale deed. The first respondent prayed for
a decree for specific performance and in the alternative for refund of Rs.3,00,000/-. The appellant contended that she never entered into an
agreement for sale with the first respondent and received any amount from him. She also denied that possession of the property was handed over
to the first respondent. According to her, her son Prakasan borrowed from the first respondent Rs.25,000/- after obtaining from the appellant a
signed blank stamp paper and signed blank papers as security. She prayed for dismissal of the suit. The trial court found that there was no
agreement for sale between the parties. But it ordered refund of Rs.3,00,000/- which was allegedly received by the appellant from the first
respondent. This is challenged.
On the death of the first respondent her legal heirs have been impleaded as additional respondents 2 to 6.
Heard the learned counsel for the appellant and the respondents.
In the written statement it is specifically pleaded that the appellant is uneducated. The learned counsel for the respondents submits that this does
not amount to a plea that she is illiterate. I cannot agree. In the crossexamination the first respondent/plaintiff (PW1) pleaded ignorance when it was
suggested to him that the defendant is illiterate. In her examination-in-chief the defendant (PW1) deposed that she is illiterate. There is not even a
suggestion that her evidence is not true. So it stands proved that the defendant is illiterate. She was above 60 years during the relevant period. The
burden is on the plaintiff to prove that it was after understanding the contents of the agreement for sale relied on by him the appellant executed the
document.
The first respondent (PW1) stated in his examination-in-chief that the appellant had a talk with her son Prakasan after the proposal for purchase
of the property was made. Except this bald statement there is nothing to show that she got any assistance from any of her relatives or from anyone
in whom she had reposed confidence. The first respondent failed to discharge the burden.
The total sale consideration is said to be Rs.3,50,000/-. On the date of agreement itself the first respondent allegedly paid Rs.3,00,000/- to the
appellant. In Ext A1 agreement for sale and in the plaint the first respondent claims to have obtained possession of the property. It is the residential
property of the defendant. It is not disputed before me that possession was not handed over. It is very difficult to believe that even without taking
possession of the property the first respondent gave the appellant a major portion of the sale consideration.
The lower court rightly held that the agreement for sale pleaded by the plaintiff is not true.
Now the only question is whether the lower court is justified in passing the decree for refund of Rs.3,00,000/- allegedly paid to the appellant.
She has denied receipt of Rs.3,00,000/-. There is no admission that she received Rs.3,00,000/-. The evidence of the first respondent that he paid
her Rs.3,00,000/- is not believable. So the lower court should not have passed a decree for Rs.3,00,000/-.
In her written statement and in her evidence the appellant set up a case that she gave a signed stamp paper and signed blank papers to the first
respondent when her son Prakasan borrowed from him Rs.25,000/-. But in Ext A5 reply notice she stated that she received Rs.25,000/- as a loan
from the first respondent and she is prepared to return it. So even if the first respondent''s case is not true, I think passing a decree for refund of
Rs.25,000/- will not cause any prejudice to the appellant. The decree of the lower court will be modified to this extent.
In the result, this appeal is allowed in part. The decree passed by the lower court is modified as follows:
The additional respondents are allowed to recover from the appellant Rs.25,000/- with interest at 6% per annum from 20.4.1998 till realisation.