ASHOK KUMAR DULICHAND SHARMA Vs. JETHMAL MOTILAL JEDIA

JUDGEMENT

(1.) THIS is first appeal by the plaintiff. The parties shall hereinafter be referred to as the plaintiff and the defendants.

(2.) THE facts giving rise to the appeal are as follows -One Motilal Jadia was uncle of the plaintiff. Defendant nos. 1 and 2 are the sons of late Motilal Jadia. The original plaintiff dulichand is dead. Dulichand - the original plaintiff came to Nagpur in 1970 to join the business run by defendant nos. 1 and 2. While the plaintiff started working with defendant nos. 1 and 2 in their business, the plaintiff's family was at Calcutta. Plaintiff Dulichand while at Nagpur was residing with defendant nos. 1 and 2. Plaintiff Dulichand was trying to build up his career in the jewellery business. However, up to the age of 49 he had not secured any accommodation for the family. He, therefore, decided to give top priority for securing residential accommodation for himself and his family. Due to his tremendous labour and industry, the plaintiff Dulichand was able to purchase a plot at Nagpur on 18th april, 1971. The said plot was in the occupation of the tenant and he was carrying on business there. Since property was in occupation of the tenant, the plaintiff could purchase it at a lesser price. The plaintiff purchased the said plot for a consideration of rs. 20,000/ -. The defendants had established their business at Nagpur and their business was thriving, while Dulichand was financially weak. He had no local influence at all. The defendants always used to remind the plaintiff of his weak financial condition and of his being new to Nagpur. The plaintiff contended that when the defendants came to know of the purchase of the property, they rebuked the plaintiff as to how the plaintiff has purchased the property which is in occupation of the tenant. The plaintiff Dulichand was also told that he neither had financial capacity nor resources to evict the tenant. The defendants thus scared the plaintiff. Due to this, the plaintiff felt very scary and in good faith he told the defendants to do whatever was necessary to be done in the matter so as to have a residential accommodation for the plaintiff. Taking advantage of the goodness of the plaintiff Dulichand, the defendants told the plaintiff to execute one sham document in favour of the defendants and they assured that the said document would not be acted upon. It was assured to the plaintiff that the said document would, in fact, be used merely to show to the people that the defendants were the owners of the property. It was also assured that if that is so done, the tenant would come to terms and would vacate. The plaintiff further contends that the defendants suggested that an agreement for sale be made showing purchase price of Rs. 20,000/- and earnest amount of rs. 10,000/-, but in reality, there would be no monetary transaction and the agreement would be sham. The plaintiff believed in the said assurance and executed an agreement of sale in favour of defendant no. 2 on 8th of July, 1971. He also executed a power of attorney in favour of defendant no. 2. The plaintiff submits that he was never paid a sum of Rs. 10,000/- as mentioned in the agreement. The plaintiff further contends that the said documents were obtained from him under undue influence, coercion and fraud. The plaintiff also contends that the plaintiff had time and again requested the defendant to cancel and revoke the said power of attorney. The defendants assured that the said agreement and power of attorney were sham documents and there was no question of them being used for any other purpose. It was also assured that since the documents were executed long back, they were deemed to be cancelled. The plaintiff contends that in the month of December, 1986 he had come to nagpur due to the death of his uncle. When he came to Nagpur in December, 1986, he learnt that defendant no. 2 had allegedly sold the suit property to defendant no. 1. The plaintiff became apprehensive and contacted a lawyer. The lawyer served a notice on defendants. The plaintiff submits that he had never authorized defendant no. 2 to sell the property to defendant no. 1. The said sales are void and do not confer any title on defendant no. 1. The plaintiff denies to have received any consideration under the sale-deed. Further, it is contended that in the month of January, 1988 the plaintiff received a registered letter from defendant no. 1 containing a draft of Rs. 5,000/ -. On reading those letter and the draft the plaintiff finally came to know that the house has been sold by defendant no. 2 to defendant no. 1 for rs. 40,000/ -. In fact, the house was not to be sold and was acquired by the plaintiff for his own use.

(3.) THE plaintiff had filed the suit at calcutta. The court at Calcutta held that the suit could not be entertained by Calcutta court for want of territorial jurisdiction, as no cause of action arose there. The plaint was returned to plaintiff. It was represented by the plaintiff at Nagpur and at the time of representation an amendment was made to the effect that the uncle of the plaintiff had died in September, 1986 and he had come to attend the funeral and at that time he came to know of the alleged sale-deed. He had then instructed the lawyer to issue the notice. The plaintiff, therefore, prayed that the agreement of sale and the power of attorney executed were null and void and were nominal documents, and also for a declaration that the sale-deed executed in favour of defendant no. 1 was also void.