Himachal Pradesh High Court
Usha Rani vs Birbal Alias Biru on 25 February, 2015
Author: Rajiv Sharma
Bench: Rajiv Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
RSA No. 447 of 2002.
Reserved on: 24.2.2015.
.
Decided on: 25.02.2015.
Usha Rani ......Appellant.
Versus
Birbal alias Biru .......Respondent.
Coram
The Hon'ble Mr. Justice Rajiv Sharma, Judge.
Whether approved for reporting?
For the appellant(s): Ms. Anjana Khan, Advocate, vice counsel.
For the respondent: Mr. N.K.Thakur, Sr. Advocate, with Mr. Ajeet Saklani,
Advocate.
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Justice Rajiv Sharma, J.
This regular second appeal is directed against the judgment and decree of the learned District Judge, Una, H.P. dated 13.9.2002, passed in Civil Appeal No.14 of 2001.
2. Key facts, necessary for the adjudication of this regular second appeal are that the appellant-plaintiff (hereinafter referred to as the plaintiff) has instituted suit for specific performance of contract by way of execution of sale agreement dated 13.11.1984 Ext. PW-3/A. According to the plaintiff, the respondent-defendant (hereinafter referred to as the defendant) agreed to sell the suit land, as per the details given in the plaint, to the plaintiff for a consideration of Rs. 8867/- and executed an agreement of sale to this effect on 13.11.1984. He received an amount of Rs. 4467/- at the time of execution of the agreement of sale as earnest money and further agreed to execute the sale deed in favour of the plaintiff on removal of the legal flaw in his title. He came to know in the month of April, 1992 that the legal flaw in the title of the ::: Downloaded on - 15/04/2017 17:39:26 :::HCHP 2 defendant had been removed by the enactment of the law and thereafter he requested the defendant several times to perform his part of the contract by .
executing the sale deed of the suit land in favour of the plaintiff, after receiving the balance sale consideration of Rs. 4400/-. However, the defendant was reluctant to perform his part of the contract. A notice was sent to him through counsel on 4.5.1992 requesting him to execute the sale deed by accepted balance sale consideration of Rs. 4400/- before 4.6.1992.
The plaintiff was always ready and willing to perform his part of the contract.
3. The suit was contested by the defendant. According to the defendant, he has never agreed to sell any part of the land to the plaintiff nor he has ever executed the agreement dated 13.11.1984. He has not received any amount in lieu of part of sale consideration. The agreement was a false and forged document and if execution of the said document is proved then it is the result of fraud and misrepresentation. He was in possession of the suit land as a tenant and has become owner of it on 3.10.1995 by operation of H.P. Tenancy and Land Reforms Act.
4. The replication was filed by the plaintiff. The learned Sub Judge, Una, framed the issues on 20.9.1993. The learned Sub Judge, Una, decreed the suit on 30.1.2001. The defendant, feeling aggrieved by the judgment and decree dated 30.1.2001, filed an appeal before the learned District Judge, Una. The learned District Judge, Una, allowed the same on 13.9.2002.
Hence, this regular second appeal.
5. This Regular Second Appeal was admitted on the following substantial question of law on 27.9.2002:
::: Downloaded on - 15/04/2017 17:39:26 :::HCHP 3"1. Whether the findings of lower appellate Court are vitiated because of non-consideration of material evidence and mis- interpretation of oral and documentary evidence particularly Ext.
.
P-3 (sic. Ext. PW-3/A) and the decree passed by the lower Court is required to be upheld?"
6. Ms. Anjana Khan, Advocate, appearing vice counsel for the appellant has vehemently argued that the learned first appellate Court has not correctly appreciated the oral as well as the documentary evidence on record, more particularly, Ext. PW-3/A i.e. the agreement to sale dated 13.11.1984. On the other hand, Mr. N.K.Thakur, learned Sr. Advocate, has supported the judgment and decree of the first appellate Court dated 13.9.2002.
7. I have heard the learned Advocates for the parties and gone through the records of the case carefully.
8. PW-1 Prem Chand deposed that the plaintiff is his wife. He was the General Power of Attorney vide Ext. PW-1/A. He was well conversant with the facts of the case. The defendant has entered into agreement with his wife for selling 5 marlas of land bearing Kh. No. 106 for a consideration of Rs.
8867/-. The earnest money of Rs. 4467 was paid to the defendant. The remaining amount of Rs. 4400/- was to be paid at the time of registration of the sale deed. The defendant has undertaken to register the sale deed after the removal of legal hurdles. The defendant was tenant and subsequently became owner. Thus, he could not sell the land for a period of 10 years. His wife was ready and willing to register the sale deed after paying the remaining amount of Rs. 4400/-. He requested the defendant to execute the sale deed.
::: Downloaded on - 15/04/2017 17:39:26 :::HCHP 4The notice was sent to the defendant on 4.5.1992. The copy of the notice was Ext. PW-2/B. He has proved the postal receipt Ext. PW-1/C and .
acknowledgement Ext. PW-1/D. The defendant has not registered the sale deed up to 4.6.1992. He went to the office of the Tehsildar Bangana. He submitted the application before the Tehsildar. He remained in the office of the Tehsildar up to 4-5:00 PM. In his cross-examination, he has admitted that neither he nor his wife was present at the time of execution of the agreement to sell.
9. PW-3 Sh. Dalip Chand deposed that the agreement Ext. PW-3/A was entered into by the defendant with the plaintiff on 13.11.1984. It was scribed by Gulbant Singh. He was present on behalf of the plaintiff. The total consideration was Rs. 8867/-. An amount of Rs. 4467/- was paid to the defendant. He has paid it to the defendant. The contents of the agreement were read over to the defendant. He has put his signatures after admitting the contents of the agreement to be true. It was signed by Bhagat Ram and Rajinder Singh alongwith him in the presence of the defendant. In his cross-
examination, he deposed that he was sent to scribe the agreement by the plaintiff.
10. PW-4 Sh. Bhagat Ram deposed that he was the marginal witness of Ext. PW-3/A agreement. Sh. Dalip Chand has paid a sum of Rs. 4467/- to the defendant. The remaining amount of Rs. 4400/- was to be paid at the time of the registration of the sale deed.
11. PW-5 Sh. Rajinder Singh deposed that he was the marginal witness of agreement Ext. PW-3/A. ::: Downloaded on - 15/04/2017 17:39:26 :::HCHP 5
12. PW-6 Sh. Baldev Singh deposed that Gulbant Singh was his father-in-law. He died in the year 1984. He was a Deed Writer. According to .
him, the agreement was entered at Sr. No. 606 dated 13.11.1984. He was well conversant with the hand writing of Gulbant Singh. The agreement Ext.
PW-3/A was scribed by his father-in-law.
13. PW-11 Smt. Usha Rani deposed that the defendant has entered into agreement with her on 13.11.1984 for a consideration of Rs. 8867/-. Rs.
4467/- was paid to the defendant at that time and remaining amount of Rs.
4400/- was to be paid at the time of registration of the sale deed. This agreement was made by Sh. Dalip Chand on her behest. He has paid the earnest money to the defendant. She was ready and willing to execute the sale deed. The notice was sent to the defendant, however, he has not acted upon the same. Her husband was her General Power of Attorney. In her cross-examination, she has categorically admitted that the agreement was not scribed in her presence. It was executed at Amb. She was not aware about the recitals of the agreement. Volunteered that her Uncle might be aware of it. She was not aware about the striking or adding of the names of the persons in the agreement.
14. Defendant has appeared as DW-1. According to him, he was tenant and has become the owner in the year 1974-75. The mutation was also attested in his favour. He was not known to the plaintiff and her husband. He has never agreed to sell any part of his land. He has not entered into agreement nor he has received any amount in advance.
::: Downloaded on - 15/04/2017 17:39:26 :::HCHP 615. The precise case of the plaintiff is that she has entered into an agreement for purchase of suit land for a consideration of Rs. 8867/-. She .
has already paid a sum of Rs. 4467/- to the defendant at the time of the execution of the agreement Ext. PW-3/A. PW-3 Dalip Chand, PW-4 Bhagat Ram and PW-5 Rajinder Singh have testified that they were present at the time of the execution of the agreement Ext. PW-3/A dated 13.11.1984. It was signed by the defendant. These witnesses claimed that they have signed the agreement as attesting witnesses. According to them, a sum of Rs. 4467/-
was paid to the defendant by Dalip Chand at the time of the execution of the agreement. The agreement Ext. PW-3/A was scribed by Gulbant Singh. PW-
6 Baldev Singh has proved that the entry was made in the document register at Sr. No. 606 dated 13.11.1984 maintained by Gulbant Singh, since deceased.
16. What emerges from the statements of PW-1 Prem Chand and PW-
11 Usha Rani that they were not present at the time of the execution of the agreement. PW-11 Usha Rani did not know about the contents of the agreement. She was also not aware about the deletion of the names of the persons from the agreement. The Court has gone through the agreement Ext.
PW-3/A dated 13.11.1984 minutely. Initially, in the agreement, the names of Subhash Chand and Ravinder Kumar were inserted, but later these were deleted and the name of plaintiff Usha Rani was inserted. The cuttings were not initialed either by the Deed Writer or by the marginal witnesses. There is a note appended to agreement Ext. PW-3/A dated 13.11.1984. This note is towards the end of the agreement Ext. PW-3/A. Though, regular margin has ::: Downloaded on - 15/04/2017 17:39:26 :::HCHP 7 been maintained in the earlier part of the agreement but note has been inserted before the signatures in a very compact manner without maintaining .
proper margin. According to the plaintiff, Dalip Chand has paid the earnest money on her behalf to the defendant. If the earnest money was paid for executing the agreement in favour of the plaintiff and Dalip Chand and Bhagat Ram were directed by Prem Chand to get the sale deed recorded in favour of the plaintiff, there was no reason for inserting the name of Subhash Chand and Ravinder Kumar in the agreement initially.
17. In the case of Ramchandra Rambux vrs. Champabai and others, reported in AIR 1965 SC 354, their lordships of the Hon'ble Supreme Court have held that it is open to the Court to look into the surrounding circumstances. It has been held as under:
"13. The High Court has further pointed out that the document is inscribed on a flimsy paper. It is in high-flown Urdu, and is alleged to have been dictated by him in that language. No doubt, the evidence indicates that Ramdhan could speak in Urdu, but it also indicates that he cannot read or write in Urdu. It would, therefore, be legitimate to infer that the language which he could speak was the unlettered man's Urdu and not high-flown Urdu. which contains an admixture of Persian words. Indeed, such words have actually been used in this document. The signature of Ramdban is itself in Modi script, which would not have been the case if were well-versed in Urdu. When we turn to the reverse of the sheet on which the document is inscribed, we find that as we go lower down, more and more words seem to be crammed in each line and the spacing between two lines tends to decrease, even though there appears to have been plenty of room for the signature of Ramdhan to be scribed lower down on the paper. It would be legitimate to infer from this that the signature was already there before the will was scribed. This feature ::: Downloaded on - 15/04/2017 17:39:26 :::HCHP 8 of the document as well as the quality of the paper used would suggest that a piece of paper bearing Ramdhan's signature has been utilised by the scribe for engrossing what purports to be a will."
.
18. In the case of Vakkalagadda Kondiah vrs. Channamsetty Pedda Pulliah and ors., reported in AIR 1960 AP 121, the learned Single Judge has held that where a party sues on an instrument, which on the face of it appears to have been altered, it is for him to show that the alteration had not been improperly made. It has been held as under:
r to "[5] The learned advocate for this petitioner in the first place contended that the alleged material alterations were not fatal since the petitioner had sworn that he was not responsible for it. To fortify himself he referred me to Krushanacharan Padhi v.
Gourochandro Dyano Sumanto, AIR 1940 Mad 62, and Gourochandro Dyano Sumanto v. Krushana-charana Padhi, AIR 1941 Mad 383. The latter nuthority was decided when an appeal was taken from the decision in the former case.
There the question was to the effect of a material alteration in a promissory note made by a stranger and it was held that the right of a holder of a promissory note is not affected by a material alteration in the instrument when the alteration has been made by a stranger without the consent of the holder of the instrument and when there has been no fraud or laches on the part pf the holder. In the present case, there is no such plea and, therefore, the authorities cited are clearly distinguishable.
The bald statement of the petitioner that he did not do it is not sufficient to infer that some stranger was responsible. The respondents had clearly imputed the act to him for it. A reference has been made to two English cases in AIR 1951 Mys 102, which are pertinent to the point under discussion. They are Davidson v. Cooper, (1844) 67 Rules 638, and Henman v. Dickinson, (1828) 5 ::: Downloaded on - 15/04/2017 17:39:26 :::HCHP 9 Bing 183. In the first case it was held that a party who has the custody of an instrument made for his benefit is bound to preserve it in its original state and that any material alteration .
will vitiate the instrument.
In the other case it is laid down that where a party sues on an instrument which on the face of it appears to have been altered, it is for him to show that the alteration had not been improperly made. ILR 12 Mad 239 is another case in point. There a bond, while in possession of the plaintiff underwent an alteration with regard to the date thereof. The period of limitation from the original date had not expired and no proof of fraud had been tendered. It was held that the bond was void as such and was not receivable in evidence to prove the debt.
In this view of the matter, the first contention advanced by the learned advocate for the petitioner fails and that brings me to the consideration of the question whether the petitioner could get any relief on the original debt as evidenced by Ex. A-1 of which Ex. A-2 is admittedly a renewal. To make the matter short on this aspect of the case, I may refer to Rangaswami Reddy v. K. Doraiswami Reddi, (S) , which has been cited by the learned advocate for the respondents in another connection. Therein occur the following observations at page 718 of the report ;
"Here on account of Section 87 of the Negotiable Instruments Act the promissory note has become void and the plaintiff cannot be permitted to adduce sny other evidence to prove the contract of loan. The promise to repay the amount of the loan is certainly a term, indeed an essential term of the contract. 'Of course if there was a completed contract which existed before the execution of the promissory note, in which case the promissory note may be treated as a security or voucher, an action would He on such a contract even though the promissory note executed subsequently cannot be admitted in evidence for any reason'."
In the instant case, there is no dispute that Ex. A-2 was merely a renewal of Ex. A-1. Therefore, the portion of the above ::: Downloaded on - 15/04/2017 17:39:26 :::HCHP 10 extract underlined (here in ') by me applies with full force. But the learned advocate for the respondents contended that that cause of action would be time-barred since Ex. A-2 (a) will not .
enure for the benefit of the cause of action arising under Ex. A-l. Ex. A-2 (a) as already stated is an acknowledgment of payment of Rs. 4/- under Ex. A-2.
The contention is that the acknowledgment of part payment of a sum secured by Ex. A-2 must be limited to the liability arising under Ex, A-2 and not for the liability arising under Ex. A-1. No nuthority of rule of law has been cited before me in support of this contention. In my view, Ex. A-1 (a) and Ex. A-2 (a) can be used for purposes of limitation under Sections 19 and 20 of the Limitation Act."
19. Accordingly, the learned first appellate Court has correctly appreciated Ext. PW-3/A agreement dated 13.11.1984. The substantial question of law is answered accordingly.
20. Consequently, there is no merit in this appeal and the same is dismissed, so also the pending application(s), if any.
February 25, 2015, ( Rajiv Sharma ),
(karan) Judge.
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