Madhya Pradesh High Court
Smt. Mohini And Ors. vs Smt. Vidhyawati Rathore And Ors. on 24 March, 2004
Equivalent citations: 2004(3)MPHT68
Author: A.K. Shrivastava
Bench: A.K. Shrivastava
JUDGMENT A.K. Shrivastava, J.
1. The defendants having lost from the Trial Court has challenged the judgment and decree dated 15-4-1993 for specific performance of contract passed in favour of plaintiff by First Additional District Judge, Sagar in Civil Suit No. 5-A/1989, by preferring this appeal.
2. The respondents are the legal representatives of plaintiff Krishna Kumar Rathore who during the pendency of the suit died. Defendants/appellants are the heirs of Nanku Ram Sonkar. In brief the case of the plaintiff is that Nanku Ram entered into an agreement of sale with plaintiff/Krishna Kumar on 20-11-1987 in respect to the suit house. A document to that effect was executed on that day and in pursuance to the contract, plaintiff/Krishna Kumar paid a sum of Rs. 7000/- to deceased Nanku Ram. It was agreed between the parties that balance amount of consideration Rs. 16,000/-would be paid to Nanku Ram and thereafter he (deceased Nanku Ram) will execute a sale deed in favour of plaintiff. It is no more in dispute that Nanku Ram after executing the document of agreement to sell breathed his last in December, 1987. According to the plaintiff, he insisted deceased Nanku Ram in his life time and after his death to his heirs (defendants) to execute sale deed after obtaining the balance amount of consideration Rs. 16,000/-. Nanku Ram, during his life time and after his death present defendants avoided to execute the sale deed, as a result of which plaintiff on 27-1-1989 and 3-3-1989 sent two notices to get the sale deed executed but neither they sent any reply to the notice nor executed the sale deed. Hence, the present suit for specific performance of contract has been filed. According to the plaintiffs, they are still ready to purchase the suit property on payment of balance sale price Rs. 16,000/-and they are also ready to bear necessary expenses. An alternative prayer to refund the advance amount Rs. 7,000/- with 12% per annum interest has also been made.
3. The defendants/respondents though initially denied the execution of the document of agreement of sale by their predecessor Nanku Ram and also denied averment that original plaintiff Krishna Kumar ever paid any amount of Rs. 7,000/-, however, in special pleas of their written statement, they pleaded that in the riots of year 1984, the suit house became dilapidated and for its alteration and also for the purpose of installation of water and electric connection, it became necessary to execute a document of agreement and for that purpose, the plaintiff by playing fraud, obtained signature of deceased Nanku Ram on a stamp paper. However, that portion of the stamp paper was later on torned on which logo of stamp was embossed and on the remaining portion of the stamp paper, plaintiff prepared a forged document of impugned agreement of sale. It has further been pleaded that the suit house is property of Hindu undivided family and, therefore, deceased Nanku Ram was not having exclusive right to alienate the suit house.
4. On the basis of aforesaid pleadings the Trial Court framed necessary issues. Thereafter, parties led their evidence. The Trial Court on examining the evidence decreed the suit of plaintiff of specific performance of contract by impugned judgment and decree. Hence this appeal.
5. The learned Counsel for the appellant has contended that defendants denied the execution of impugned document and also denied signature of deceased Nanku Ram on it and, therefore, it was incumbent upon the plaintiff to prove the signature of, deceased Nanku Ram on the impugned document of agreement to sell, having failed to do so, it is not proved that impugned document (Ex. P-1) bears the signature of deceased Nanku Ram. His further contention is that even if it is held that document was executed then, as plaintiffs have failed to prove their readiness and willingness, which is a cardinal ingredient in a case of specific performance of contract, the Trial Court erred in law in decreeing the suit.
6. Refuting the aforesaid submission of learned Counsel for the appellants, it has been contended by learned Counsel for respondents that plaintiffs in their plaint not only pleaded their readiness and willingness but also proved this fact by leading cogent evidence. It has also been putforth that since defendants in their written statement admitted the signature of deceased on impugned document of agreement to sell, though in the pretext of obtaining it by fraud, it was for the defendants to prove the fraud. According to learned Counsel, the defendants utterly failed to prove fraud and, therefore, learned Trial Court did not err in decreeing the suit.
7. I shall now deal the submissions of learned Counsel for the parties. The first submission of learned Counsel that the signature of deceased Nanku Ram on Ex. P-1 is not proved as plaintiffs have failed to examine any handwriting expert, is considered. On bare perusal of Ex. P-1, it is revealed that this document was written on 20-11-1987. According to the plaintiffs, deceased Nanku Ram signed this document. The attesting witnesses are Abdul Shakir (P.W. 2) and Lallu Ram Yadav (P.W. 3). Original plaintiff Krishna Kumar died before he could be examined. One of the legal representative is widow Vidhyawati Rathore (P.W. 1). According to her, in his presence impugned document was executed and it was agreed between the deceased Nanku Ram and her husband that the suit house shall be sold for a consideration of Rs. 23,000/- and sum of Rs. 7000/- was paid cash towards advance money. According to her, Nanku Ram told that Rs. 16,000/- shall be received by him at the time of execution of the sale-deed. According to this witness, her husband insisted deceased Nanku Ram for several times to get the sale-deed executed but he avoided. Her husband also sent notices to the defendants and the drafts of notices are Exs. P-2 and P-3. These notices are dated 21-7-1989 and 3-3-1989. The argument could have been considered if the defendants would not have admitted the signatures of deceased Nanku Ram on Ex. P-1. On going through the written statement, it is gathered that defendants specifically admitted the signatures of deceased Nanku Ram though according to them it was obtained by playing fraud. It is well settled in law that admission is the best evidence that an opposing party can rely upon though it is not a conclusive proof. There are several kind of admissions and one important kind of admission is the admission made in the written statement. According to me the admission made in the written statement stands on higher footing and having greater degree than evidentiary admission. The admission in the pleading fully binds a party who makes it and makes them and constitute a waiver of proof. In the present case, as it has been admitted by the defendants in their written statement that impugned document (Ex. P-1) bears the signature of Nanku Ram, this part of admission in the written statement is having value of higher degree and, therefore, in absence of any proof of the signature of deceased Nanku Ram by examining hand writing expert, would not make any difference.
8. Out of several defendants, Ram Avtar (D.W. 2) and Ganesh Sonkar (D.W. 3) were examined. Ram Avtar in his cross- examination admitted that the impugned document (Ex. P-1) was not executed in his presence, other defendant Genesh Sonkar though said that Ex. P-1 does not bear the signature of his father but in the written statement he admitted the signature of Nanku Ram on the impugned document. As the defendants failed to examine any witness before whom signature of deceased Nanku Ram on Ex. P-1 was obtained, therefore, the plea putforth by them that just to prepare an agreement of obtaining electric and water connection, signature of Nanku Ram was obtained by plaintiff's predecessor Krishna Kumar and thereafter a forged document of agreement of sale was prepared, is not proved. Thus, accordingly I hold that Ex. P-1 bear the signature of Nanku Ram.
9. The next question which has been raised by learned Counsel for appellants that whether original plaintiff Krishna Kumar ever insisted deceased Nanku Ram and after his death, present defendants, to get the sale deed executed, shall now be considered. In a suit for specific performance of contract, the question of readiness and willingness plays a vital role because under Section 16(c) of the Specific Relief Act, for obtaining a decree of specific performance of contract, the condition of readiness and willingness is pre-supposed and without proving readiness and willingness, a suit for specific performance of contract can not be decreed.
10. In above said context, I shall now deal the pleading and evidence of plaintiffs in that regard. According to the plaint averments, impugned document (Ex. P-1) was executed on 20-11-1987 and it was signed by Nanku Ram whose heirs are present defendants/appellants, the plaintiff further pleaded and which has not been denied by the defendants in their written statement that in the month of December, 1987 Nanku Ram passed away. Thus, it would mean that within a month Nanku Ram died. In the document (Ex. P-1) no period has been fixed for executing the sale deed, though it is well settled in law that the time is not an essence of the contract. But, in the document, it has been specifically mentioned that whenever Krishna Kumar would pay Rs. 16,000/- a sale deed would be executed and registered. For better understanding, it shall be apposite to re-write that part of the document ^^tc eq>s ckdh ds 16000 :i;k vadu lksyg gtkj :i;k ns nsosaxs rc eSa vius edku ua- 17@33 lnj lkxj dh jftLVªh Ñ".k dqekj lR;ukjk;.k jkBksj ds uke dj nwaxkA**
11. These averments in the document indicates that plaintiff was not having requisite money with him otherwise this condition would not have been incorporated in the document that whenever plaintiff would pay the balance amount, the house in dispute would be sold to him. Normally, this type of condition is not embodied in a document. One could infer that this condition was inserted only because plaintiff was not having sufficient funds with him.
12. In the plaint, though it has been pleaded that plaintiff Krishna Kumar insisted Nanku Ram for several times to get the sale-deed executed but he avoided. At this juncture, we should not forget that Nanku Ram died in December, 1987 and Ex. P-1 is dated 20-11-1987. Thus, according to the plaintiff, in between 20-11-1987 and December, 1987 for several times, it was insisted by him to get the sale deed executed. If during this short period of one month, the plaintiff was ready to purchase the suit house then why that condition was embodied in the document that whenever Rs. 16,000/- shall be paid, document of sale deed would be executed.
13. Though in the plaint in very specific words, it has been pleaded that plaintiff Krishna Kumar insisted Nanku Ram to get the sale-deed executed on payment of balance consideration Rs. 16,000/- but this fact has not been proved by any documentary evidence. Plaintiff sent two registered notices (Ex. P-2 and P-3), dated 27-1-1989 and 3-3-1989 respectively, to the defendants but nowhere in these notices this fact has been mentioned that plaintiff ever insisted Nanku Ram to execute the sale deed. These notices were sent to the present defendants after the death of Nanku Ram and immediately before filing of the suit, but this fact does not exist in the said notices and for the first time, this fact was embodied in the plaint that plaintiff Krishna Kumar insisted Nanku Ram to get the sale deed executed. According to me, just to give an artificial colour of readiness and willingness, this fact has been pleaded in the plaint.
14. It may be noted that in December, 1987 Nanku Ram died and according to the plaintiff, he insisted the deceased to execute the sale-deed which was avoided by him. The suit was filed on 10-3-1989 meaning thereby after near about one year and three months of the date of the death of the deceased. According to the plaintiff, deceased avoided to execute the sale-deed, in other words impliedly he denied to execute the sale-deed, but the suit was not filed and the plaintiffs waited for a year and three months. In a suit for specific performance of contract, delay plays a vital role and in order to infer the readiness and willingness of plaintiff, the delay of a great extent, in the present case, would be a relevant factor to refuse the exercise of the discretion in favour of plaintiff. Under Section 20 of the Specific Relief Act, the discretion has been vested in the Court to allow or disallow a decree of specific performance of contract and the Court is not bound to grant the relief of specific performance merely because it is lawful to do so. Though there is a rider put by the statute on the Court that the discretion should not be exercised arbitrarily. Indeed, it should be based on sound reasonings guided by judicial principles and capable of correction by a Court of appeal. Thus, this Court while exercising the appellate jurisdiction can also exercise the discretionary power to allow or dis-allow the relief of specific performance. Apart from this power conferred to this Court by Section 20 of the Specific Relief Act, under Section 107(2) of the Code of Civil Procedure, 1908, this Court being an Appellate Court also enjoys the same powers and duties as are conferred and imposed on the Trial Court before whom the suit was instituted. From the aforesaid enunciation of law, it is luminously clear that this Court can also exercise discretionary power to allow or dis-allow relief of specific performance of contract.
15. On testing the above said law on the anvil of present factual scenario as there is a great delay in filing the suit, this has put a deep dent on plaintiff's conduct in respect to his readiness and willingness.
16. As discussed hereinabove, plaintiff Krishna Kumar insisted deceased Nanku Ram when he was alive to execute the sale deed and he avoided then why notices were sent after the expiry of one year and two months. This would be an additional factor not to exercise the discretion in favour of plaintiff and equity also so demands. The Supreme Court in the case of S. Rangaraju Naidu v. S. Thiruvarakkarasu, 1995 Supp (2) SCC 680, has laid down that relief of specific performance is discretionary one. It is thus clear that the relief is equitable one and when the plaintiff did not bother to issue notices immediately after when Nanku avoided to execute the sale deed and they were sent soon before filing of the suit, would go to show that just to bring the suit in the clutches of readiness and willingness two notices were sent and immediately the suit was filed on 10-3-1989. Acivil suit has to be decided not only on the basis of the evidence and its impact with technicality, but, also by applying the principles of "probabilities and preponderance".
17. The term "readiness and willingness" is to be decided on the anvil of the facts and circumstances of the each case. In the present case, nowhere in the plaint, it has been so pleaded or has been said by plaintiff Vidhyawati Rathore in her evidence that plaintiffs are possessing sufficient funds to pay the balance sale price. Though, it has been pleaded that plaintiff is ready and willing to purchase the suit house after payment of Rs. 16,000/-. There is no documentary proof that plaintiffs were having funds with them to pay the balance consideration. In this context, I may profitably rely on the decision of the Apex Court in the case of His Holiness Acharya Swami Ganesh Dassji v. Shri Sita Ram Thapar, AIR 1996 SC 2095.
18. The plaintiff Krishna Kumar and after his death the present plaintiffs/respondents are tenant in the suit house. Smt. Vidhyawati Rathore in her cross-examination also admitted this fact.
19. On the aforesaid premised reasons, according to me, the Trial Court erred in law in decreeing the suit. The suit for specific performance of the contract is hereby dismissed, however, defendants are bound to refund the amount of Rs. 7000/- which was obtained by Nanku Ram along with simple interest @ 6% per annum.
20. The appeal succeeds in part and is hereby allowed to the extent indicated hereinabove. Parties are directed to bear their own costs. Counsel fee according to the Schedule if certified.