Smt. Chunni Devi vs Bapu Bhai Desai and Another

V.P. Tyagi, J.—This is plaintiff''s first appeal against the judgment and the decree of Addl. District Judge No. 2 Jodhpur dated 5th July, 1973 dismissing plaintiff''s suit for recovery of Rs. 10,800/. from defendant respondents Bapu Bhai Desai and Smt. Parvati Devi. The appellant has also impleaded her husband Shri Bhabootsingh as one of respondents to this appeal. But Bhabootsingh died during the pendency of the appeal and, therefore, his name was struck off from the array of the respondents at the request of the appellant on 6th September, 1974.

The points involved in this appeal are not very intricate but the facts giving rise to this litigation are undoubtedly complicated.

Plaintiff Smt. Chunni Devi entered into an agreement with Shri Bapu Bhai Desai to purchase a plot of land in front of Pratap School on the Chopasani road, Jodhpur for a sum of Rs. 45,000/. This agreement was executed in the year 1959 and the plaintiff advanced Rs. 10000/ to defendant Bapu Bhai Desai as an earnest money. It may be mentioned here that the plot which Bapu Bhai Desai agreed to sell to the plaintiff Smt. Chunni Devi belonged to one Shankerlal who had agreed to dispose of that plot to Shri Bapu Bhai Desai. But by the time the agreement was enured into between the plaintiff and respondent Bapubhai Desai, the title in the plot had not passed on to Bapubhai Desai. According to the agreement between the parties, the sale deed was to be executed by Bapubhai Desai within two months. But it so appears that for one reason or other, the plot could not be sold by Sankerlal to Shri Bapubhai Desai. In the year 1961 Bapubhai Desai negotiated with the husband of plaintiff Smt. Chunni Devi the period for execution of the sale- deed may be increased and it so appears that on the same document an endorsement was made that the sale shall be completed by Baoubhai Desai in favour of Smt. Chunni Devi within a period of six months Shri Bhabootsingh husband of Smt. Chunni Devi paid Rs. 15,000/- more towards that agreement to Bapubhai Desai.

While litigation was going on between Shanker Lal and his wife and children for the partition of Shankerlal''s property including the disputed plot, a decree was obtained by respondent Parvati Bai against Shankerlal from the Bombay Court Execution of that decree was transferred by the Bombay Court to the court of the Additional District Judge No. 2, Jodhpur, where the suit between Shanker Lal and his wife and children was pending. It is admitted by learned Counsel for the parties that an order was passed by the Additional District Judge, Jodhpur for the appointment of a Receiver to manage the property of Shankerlal and to see that the Shankerlal''s property be sold through the agency of the Receiver to satisfy the decretal debt of Smt. Parvati Bai. When a I these proceedings were going on in the court of the Addl. District Judge, Jodhpur, a suit was filed by Smt. Chnnni Devi against Bapubhai Desai in the same court for the specific performance of the agreement for sale. In that suit Smt. Parvati Bai was also impleaded as a defendant probably for the reason that, will was left by Shankerlal, who meanwhile died, in favour of Smt. Parvati Bai and by that will the disputed plot was bequeathed to Smt. Parvati Bai. It will to relevant to mention here that Bapubhai Desai moved an application under Order 24 Rules 1 and 2 and with that application be deposited Rs. 25,000/- in the court with a request that his title to the plot of land which he had agreed to sell in favour of Smt. Chunni Devi did not ripe and, therefore, the amount that he had received from the prospective purchaser, may be returned. That amount of Rs. 25,000/ was not withdrawn by Smt. Chunni Devi presumably under an impression that ultimately her suit for specific perfomance will be decreed against Bapubhai Desai. It so appears that, the litigation between the parties under these complicated circumstances went for a pretty long time and, therefore, in order to see that the title of Shri Bapu Bhai Desai in suit plot of land may become perfect an agreement was entered in between Smt. Chunni Devi and Smt. Parvati Bai which ban been reduced into writing and produced in present suit as Ex. A 1. From the perusal of this agreement, Smt. Chunni Devi had an apprehension that the litigation will how ever be prolonged by Smt. Parvati Bai by raising certain objections for allowing Bapubhai Desai to execute a sale deed in favour of Smt. Chunni Devi and, therefore, in order to avoid such contingecy Smt. Chunni Devi agreed to pay Rs. 10,800/- to Smt. Parvati Bai and on payment of that amount an agreement was drawn between Smt. Parvati Bai and Smt. Chunni Devi which is Ex.A-1.

By this agreemet Ex. A.1 Smt. Parvati Bai agreed that plot No. 7406 measuring 1200 Sq. yards in front of Pratap School may be sold by Bapubhai Desai in favour of Smt. Chunni Devi and that she would not raise any objection to such a sale to be made in favour of Smt. Chunni Devi. It was also mentioned that Smt. Parvati Bai shall get Rs. 10,800/, from Smt. Chunni Devi for relinquishing her right to raise any objection in the court far perfecting title in the disputed plot of land of Bipubhai Desai. The plaintiff paid this amount in the court to Smt. Parvati Bai and document Ex A. 1 was also signed by the plaintiff, her husband and Bapubhai Desai.

The court directed the Receiver to execute the sale deed of plot No. 406 measuring 1200 Sq. yards, belonging to Shanksr Lal in favour of of Smt. Chunni Devi. The balance, of the sale proceeds were paid by Smt. Chunni Devi to Shri Bapubhai Desai & thus the title in the plot of land which was agreed to be purchased by Smt. Chunni Devi from Sari Bapubhai Desai in the year 1959 became perfect after the execution of sale deed on 28th October, 1967, a day after the execution of the agreement Ex. A.1 was completed between the parties. It may be mentioned here that the possession of this plot of land had been delivered to, Smt. Chunni Devi in the year 1961 by ShriBabubhai Desai. It may also be mentioned that ultimately the sale-deed was executed in favour of Smt. Chunni Devi and her hursband Babhoot Singh though the agreement between Smt. Chunni Devi and Bipubhai Desai did not contain any such stipulation that the plot of land will be sold in favour of both the wife and the husband. It is clear from the statement of PW 1 Baboot Singh that the amount of Rs. 10,800/- was given to Parvati Bai so that she may not object to the sale-deed being executed in favour of both Smt Chunni Devi and Babhoot Singh.

After the sale was Executed by the Receiver in favour of Smt. Chunni Devi and her husband Babhoot Sing, Smt.Chunni Devi preferred to file this suit for the return of Rs. 10,800/- against Bipubhai Desai, Smt. Parvati Bai and impraded Babhoot Singh also one of the defendants as he was instrumental in making payment of the said amount to Smt. Parvati Bai inter alia on the ground that the amount was paid under coercion and mistake of fact which vitiated the agreement between the plaintiff and Parvati Bai. The suit was contested both by respondents No. 1 and 2 Bapubhai Desai Smt. and Parvati Bai.

Certain documents were under the order of the court placed on the record to show that Smt. Chunhi Devi was compelled to part with the amount of Rs. 10,800/ under coercion or mistake Shri Babhoot singh was examined op behalf of the plaintiff as a sole witness to prove the facts then obtainable When'' Ex. A1 was entered into between Smt. Chunni Devi and Smt. Parvati Bai. The defendants did not choose to examine any witness but they placed certain documents including Ex. A1 to show that there was no question of any coercion oh the part of any party to compel Smt. Chunni Devi to pay Rs. 10,800/- to Smt. Parvati Bai and that the amount was paid voluntarily by the plaintiff to defendant No. 2 in order to expedite the execution of a sale- deed in her favour.

Learned Counsel for the plaintiff appellant urged that he is entitled for the return of the amount of Rs. 10,800/ from Smt. Parvati Bai under the provisions of Section 72 of Contract Act. As regards the liability of defendant Bapubhai Desai, the contention of Mr. Purohit is, that Bapubhai Desai is also liable to pay this amount back to the plaintiff under the terms of the contract entered into between the husband of Smt. Chunni Devi and Bapubhai Desai in the year 1961.

The plaintiff did not produce the original contract of 22nd March, 1961, incorporated by him in para 6 of plaint. A photostat copy of the agreement of 1959 at the end of which the language incorporated in para 6 of the plaint was written, was however produced by the plaintiff. This copy does not show that on the agreement of 22nd March, 1961, signature of Smt Chunni Devi was obtained. The signature of Shri Bapubhai Desai no doubt is there on the part of the document. The plaintiff''s witness Babhoot Singh PW/1 has also admitted in the witness box that Smt. Chunni Devi''s signature could not be obtained on the agreement of 22nd March, 1961 It is contended on behalf of Shri Bapubhai Desai that under such incomplete agreement no liability could be fastened on him for paying back the amount of Rs. 10,800/- to Smt. Chunni Devi who voluntarily paid the money to Smt. Parvati. But in order to get the sale-deed expedited. According to learned Counsel of Bapubhai Desai the plaintiff has purchased the right or Smt. Parvati Bai not the file any objection to the execution of the sale deed of the disputed plot not land in favour of the plaintiff.

Let me first examine the scope of Section 72 on the Indian Contract Act where under the plaintiff claims the refund of Rs. 10,800/- from Smt. Parvati Bai. Section 72 of the Contract Act reads as follows:

Liability of person to whom money is paid, or thing delivered, by mistake or under coercion : a person to whom money has been paid, or any thing delivered, by mistaks or under coerction, must repay or return it.

Learned Counsel for the appellant in view of the categorical statement of Babhoot Singh PW 1 that the money was not paid under any mistake could not press his claim for the repayment of the money as having been paid under mistake. His contention is that in the circumstances of this case it must be held that Smt. Chunni Devi was compelled to pay Rs. 10,800/ to Smt. Parvati Bai under coercion.

The argument of Mr. Purohit is that Smt. Chunni Devi had paid Rs. 25000/- as an advance payment for the purchase of the disputed plot of land to Shri Bapubhai Desai as back as in the year 1961 but due to litigation she was not getting the title in the land. According to Ex. A/1 (an agreement between Smt. Parvati Bai and Smt. Chunni Devi) Smt Parvati Bai had intention to raise certain objections for not executing a sale deed in favour of Smt. Chunni Devi, and if Mst. Parvati Bai were allowed to file such objections then it was certain that execution of the sale deed in favour of Chunni Devi would have been delayed till Parvati Bai''s objections were finally disposed of by the court. In order to avoid this delay Smt. Chunni Devi agreed to pay Rs. 10,800/- to Smt. Parvati Bai on a specific condition that she would not submit any objection regarding the completion of the sale of the disputed plot of land in favour of Smt. Chunni According to Mr. Purohit these circumstances go to establish that Chunni Devi was compelled against her wishes to part with a heavy amount of Rs. 10,800/- for no rhyme or reason, and it should therefore be held that Smt. Chunni Devi was made to act under coercion The argument did not find favour with the trial court and therefore the learned Judge did not accept the plea of coercion. Of course while rejecting this plea the trial Court relied upon the definition of the term ''Coercion'' as is given in Section 15 of the Act, and held that the circumstances of this cafe cannot be brought within the scope of the expression (coercion). Mr. Purohit is correct when he submits that the expression ''coercion'' used in Section 72, cannot be given that limited meaning as given to it u/s 15 of the Contract Act. According to this definition coercion is the committing, or threatening to commit, any act forbidden by the Indian Penal Code, or the unlawful detaining, or threatening to detain, any property, to the prejudice of any person whatever, with the intention of causing any person to inter into an agreement.

This question whether the expression ''coercion'' as used in Section 72 of the Act should be interpreted in the light of the definition given u/s 15 of the Contract Act, came up for consideration before the Privy Council in Seth Kanhaya Lal v. The National Bank of India Limited LR 40 Ind Ap. 56, where in their Lordships held that the word ''coercion'' in Section 72 of the Indian Contract Act, 1872, is used in its general and ordinary sense, its meaning not being controlled by the definition of ''coercion'' in Section 15 of that Act. In that case the plaintiff was the sole proprietor of certain cotton mills. There was a money decree against the plaintiff obtained by the defendants. The defendants got attachment warrant of the entire property belonging to the mills and took possession of the mills and prevented the plaintiff from working the mills Under these circumstances the plaintiff was compelled to pay to the defendant under protest a sum of Rs. 83005/- in the execution proceedings carried on before the court Plaintiff then Died a suit with the allegation that he was required to part with the money under the circumstances which unduly fell within the mischief of the expression ''coercion'' and claimed the return of that amount from the defendant. Their Lordships of the Privy Council decreed the suit of the plaintiff and observed:

A wrongful interference with the plaintiff''s lawful eajoyment of his own property is alleged. The plaintiff was clearly entitled to rid himself of that unlawful interference by any lawful means without thereby affecting his right to hold the defendantsliable for that which they have thus caused him to do so. It is true that paying under protest the sum demanded was not the only course open to him. He might have rid himself of the interference. But to do SO would have involved his submitting to the wrong for all the period necessary for those proceedings to be effective, and that right have been a serious aggravation of the wrong. To this he was in no wise bound to submit. He was free to choose a course which did not involve any such prolongation of the trespass Accordingly he paid under protest the sum demanded, and under English law he was unquestionably entitled to demand a repayment of that sum because it was an involuntary payment produced by coertion, namely, the wrongful interference of the defendants with his full and free enjoyment of his own property.

On the basis of this decision it is contended by Mr. Purohit that only two courses left open for the plaintiff were either to contest the objections filed by Smt. Parvati Bai in the proceedings going on in the court and prolong the litigation and postpone the transfer of the title in the disputed plot of land for indefinite time or to pay Rs. 10,800/- demanded by Smt. Parvati Bai for not putting forth her claim before the court of law and thus clear the way of the court to dispose of the plot of land and get the sale deed executed in favour of the plaintiff. In such circumstances it is vehemently submitted by Mr. Purohit that it was under coercion that Smt. Chunni Devi was compelled to part with this heavy amount of Rs. 10,800/-.

In order to dispose of this contention it will be relevant to refer to the document Ex. A/1 which was executed between the, parties and filed in the court as Ex. A/1. This document has got to be interpreted in the light of the circumstances then prevalent. It cannot be denied that Smt. Parvati Bai had a decree against Shanker Lal Vyas who was the original owner of the disputed plot of land and who had agreed to sell the same to Bapubhai Desai. The execution of that decree was pending in the same court. It is also an undisputed fact that Shanker Lal Vyas had left a will in favour of Smt. Parvati Bai whereby he had be quested his rights in this property to Smt. Parvati Bai. A litigation between Shanker Lal on the one hand and his wife and sons on the other for the partition of Shanker Lal''s property was also going on in the same court and that a Receiver was appointed by the court to manage and dispose of the property of Shanker Lal to liquidate the decretal debt of Smt. Parvati Bai for which execution proceedings were also pending in that court. In such circumstances Smt. Parvati Bai had a right to file such objections for the execution of the sale-deed in favour of Smt. Chunni Devi as could protect her right and interest in the property of Shanker Lal including the disputed property. In these circumstances it is difficult to say-that by filing objections in the court. Parvati Bai was making any attempt to interfere unlawfully with the property which was ultimately to be sold to the plaintiff The plot of land was in the possession of the plaintiff since 1961 as is admitted by PW 1 Babhoot Singh By filing objections before the Court it cannot be said that any attempt on the part of Smt. Parvati Bai to cause any interference with the possession and the management of the plot of land by the plaintiff. In such circumstances it is to be seen whether, the observations of the Privy Council can be availed of by the plaintiff, to strengthen her case for the repayment of the amount which was paid by the plaintiff to defendant Smt. Parvati Bai as a hush money to prevent her from putting forth her claim before the court in any of the cases pending before that court. It is not known as to what type of claim Smt Parvati Bai wanted,, to submit before the court. It may be that the claims which she wanted, to prefer by filing objections may have weight in them It cannot be denied in the circumstances referred to above that Smt. Parvati Bai had no interest in the disputed plot of land. She had every right to safeguard her interest by filing objections Before the court. It cannot be said that the intention of Smt. Parvati Bai to prefer her claim. In respect of the disputed property, before the court of law where litigation betwwen the parts was going on was an attempt to unlawfully interfere with the rights and title of the plaintiff. The plaintiff, was probably impatient to see that she may get the title in the disputed plot of land as early as possible and therefore, in order to avoid the claims any objection of Smt. Parvati Bai, she entered in to a contract with Smt. Parvati Bai to refrain from filing her claim and it was in consideration of this agreement that she consented to pay Rs. 10,800/ and actually paid that amount in the court on 27th, November, 1967 and, the court directed the execution of the sale-deed in favour of the plaintiff the very next day through the agency of the Receiver. In such circumstances it is difficult for the court to hold that in order to do away with the wrongful Interference with her right, Smt. Chunni Devi was compelled to part with this amount.

Mr. Purohit also cited few other cases before me to support his claim u/s 72 of the Contract Act and they are, P.M.V.P. Pappu Reddiar (deceased) and Another Vs. S.A. Pichu Aiyar, , Hajee Shakoor Gani Vs. T.S. Sabapathy Pillai, and Petlad Bulakhidas Mills Co. Ltd. and Another Vs. Union of India and Another,

In Hajee Shakoor Gani Vs. T.S. Sabapathy Pillai, the buyer was made to pay an amount which was not agreed between the seller and the buyer on a threat, that the goods shall not be delivered to him unless the buyer pays such an amount. The buyer ultimately paid that amount and took the delivery of the goods. In these circumstances it was held that the payment was not made by the buyer voluntarily and, therefore, the amount must be paid back by the defend- ant as it was obtained under duress or threat. The facts of that case have no similarity with the facts of the present case. In the present case the plaintiff entered into a contract with defendant Smt. Parvati Bai to give up her right to put forth her claim before the court in respect of the property which was to be sold to the plaintiff and that she actually gave up that right and therefore, the got the money agreed to between the parties. In these circumstances it cannot be said that the payment was made involuntarily.

Similarly in Pappu Reddiar''s case the decree holder whose decree had already been satisfied, fraudulently brought the property of the judgment debtor to sale in execution. The judgment debtor had to pay the money in order to save his property from being sold in execution. The learned Judge held that the payment made by a person to get rid of a wrongful interference with his property would be taken to be an involuntary payment. The circumstances of that ca e are absolutely different from the facts and circumstances of the present case.

In Petlad Bulakhidas Mills Co. Ltd. and Another Vs. Union of India and Another, the plaintiff had to part with the money under the threat that it old rates were not accepted by the plaintiff from the retrospective date the railway siding facilities shall be discontinued. In order to save his business the money was paid under protest and, therefore, the payment by the plaintiff under those circumstances was not held as a voluntary payment and rightly so. These cases in my opinion do not help the plaintiff to get back the amount of Rs. 10,800/ from Smt. Parvati Bai.

Now comes the claim of the plaintiff against Bapubhai Desai. This claim is mainly based on a subsequent contract alleged to have been entered into between the plaintiff and Shri Bapubhai Desai on 22nd March, 1961. It is vehemently urged on behalf of the respondent that it was an incomplete contract as the plaintiff had not appended her signature to the terms of this agreement. But it appears that Shri Bapubhai Desai received a sum of Rs. 15,000/ under a new agreement between the respondent and the husband of the plaintiff. It is true that the signatures were not appended by the plaintiff on this new agreement but Bapubhai Desai who had received Rs. 15,000/. under this agreed term and who had appended his signatures there to, cannot now say that he was not bound by it.

Let us now see whether this new agreement of 22nd March 1961 brings an obligation on Shri Bapubhai Desai to return the amount which the plaintiff had paid to Smt. Parvati Bai to get the execution of a sale deed expedited. The language of this new agreement on which reliance has been placed by Bipubhai Desai is as follows:

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The contention of Mr. Purohit is that Smt. Parvati Bai was putting obstruction in the way of the plaintiff to get the sale-deed executed by filing frivolous claims before the court and, therefore, the plaintiff was compelied to this expenditure to remove that obstacle and had to pay Rs. 10,800/ to Smt. Parvati Bai I regret, I cannot accept this arguments of Mr. Purohit because it is not established on the record that Smt Parvati Bai was going to file objections for or on behalf of Mr. Bapubhai Desai Smt. Parvati Bai was as much interested in the property as any one else and therefore, in her own right she could file any claim adverse to the claim of the plaintiff in respect of the disputed plot of land and. therefore, it cannot be spelt out from the circumstances that the obstruction was being put in the execution of sale-deed in favour of plaintiff by Smt Parvati Bai or on behalf of Bapubhai Desai More- over as discussed above if Smt Parvati Bai was intending to put forth any claim in respect of the disputed plot of land, it cannot be said that she was doing so in order to put obstructions in the way of the plaintiff. The plaintiff was no doubt very keen to see that her title in the land may become perfect and, therefore, she was eager to get the sale deed executed at an early date. In order to achieve that end she entered into a a agreement to see that Smt. Parvati Bai refrained herself from putting forth any claim if she had any right in the land in dispute and ultimately she succeeded in her attempt by entering into an agreement to pay Rs. 10,800/- to Smt. Parvati Bai not to file her claim in the court in respect of the disputed plot of land. In such circumstances it is difficult to hold that under the renewed agreement of 22nd March, 1981, liability to pay back Rs. 10,800/- to the plaintiff could be fastened on the shoulders of Shri Bapubhai Desai.

For the reasons mentioned above I do not find any life in the arguments advanced by Mr. Purohit. The appeal, therefore, fails and is hereby dismissed with costs.