PRAKASH GUPTA,J. - (1.) The present first appeal is directed against the judgment and decree dated August 28, 2006 passed by the learned Additional District Judge No.1 Jaipur, Jaipur City (hereinafter referred to as 'the trial court') in civil suit No.18/2006 whereby the trial court decreed the suit of the plaintiff for specific performance of an agreement to sell with costs. The legal representatives of the deceased sole defendant Smt. Chandan Devi in the said suit, aggrieved by the aforesaid judgment and decree, are before this court as appellants. For the sake of convenience, the parties are referred to in this judgment with the same status as they were before the trial court.
(2.) Brief facts giving rise to this appeal are that a suit for specific performance of the contract was filed by the plaintiff Shri Gyan Chand Kothari alleging that an agreement to sell in respect of a property-a residential house No.D-146, Rajendra Marg, Bapu Nagar, Jaipur was entered into between the plaintiff and the defendant Smt. Chandan Devi on 19.01.1996. The defendant agreed to sell her aforesaid property for a consideration of Rs.18 Lakh. Out of the said consideration, Rs.16 Lakh were paid by the plaintiff on the same day through a bank draft and it was agreed that the rest of the amount i.e. Rs.2 Lakh shall be paid at the time of execution and registration of the sale deed. It was further averred in the plaint that the defendant shall obtain necessary permission from the concerned departments and shall prepare the draft of the sale deed and send it to the plaintiff for approval within six months from the date of the agreement and the plaintiff shall approve the draft within a week from its receipt. Since, the defendant did not perform her part of the agreement and showed her reluctance to carry out her obligation under the agreement, the plaintiff caused a notice to be served through his counsel on 20.02.1997 calling upon her to perform her part of the contract within fifteen days from the date of receipt of the notice. In response to the said notice, the defendant send a reply on 23.03.1997 stating therein that her husband was out of Jaipur and therefore, she can give reply only after he returns. Thereafter, the defendant caused a reply to the said notice to be given through her advocate on 11.04.1997. Thereafter, the plaintiff, continuously requested the defendant and her husband for executing the sale deed. Ultimately on 15.01.1999, the defendant finally denied to execute the sale deed. It was the submission made in the plaint that since he had paid Rs.16 Lakh at the time of execution of the agreement to sell and had already been ready and willing to pay the remaining amount of Rs. 2 Lakh, he was entitled to obtain a decree of specific performance against the defendant.
(3.) The defendant resisted the suit by filing written statement wherein it is stated that though defendant had received Rs.16 Lakh from the plaintiff, the amount was received by way of loan and not as a consideration of her property as alleged by the plaintiff. The document dated 19.01.1996 was a sham document and defendant had never executed agreement to sell. In fact, her son Pawan Kumar needed money to settle a company dispute and he was obliged under an order of Company Law Board to pay the money by 20.01.1996. She tried to arrange the money from various quarters, but did not succeed. Ultimately, her son Pawan Kumar contacted the plaintiff, who was known to them, for a loan of Rs.16 Lakh. The plaintiff agreed to give him Rs.16 Lakh with the stipulation that he will sell the factory shed, which was to come in possession and ownership of her son under the settlement of the said company dispute, and will recover his loan from the proceeds of the sale and shall also recover a brokerage @ 3%. The plaintiff demanded from her son one stamp paper and two pie papers, signed by her. Since they were in dire need of the money and if they had been unable to arrange the money, a long drawn litigation would have been lost, therefore, she signed the above three papers and Pawan Kumar handed over the same to the plaintiff along with the original sale-deed of the residential house. It is further stated in the written statement that the said amount of Rs.16 Lakh was received through a Bankers cheque No.001607 on 19.01.1996 and the same had been deposited with her bank account and thereafter an amount of Rs.15 Lakh was transferred to the account of her daughter in law-Smt. Sudha Baj (wife of Shri Pawan Kumar). Out of this amount, two TDR'S No.835911 and 835912 were got issued respectively of Rs.12 Lakh and Rs.2,09,400/- on 20.01.1996 and informed to the Company Law Board. As per the defendant, the above amount was obtained from the plaintiff to carry out her son's obligation under the Company Law Board, which was Rs.12 Lakh as the settlement amount and about Rs.4 Lakh as cost of the proceedings. It was further stated by the defendant in the written statement that the market value of the disputed house was about Rs.70 Lakh at the time of the alleged transaction and there was no question of selling this property for merely 18 Lakh rupees. Besides this, defendant also took the plea that the property in question was acquired as joint family property and defendant was merely a Benami. It was also stated that there were manipulations and interpolations in the alleged document of agreement to sell and her signatures on the cuttings were fabricated. It was stated that the word 'Rehan' (mortgage) had been struck off and the condition that the stamp duty shall be payable, by the sellers had been added subsequently.;