Uttarakhand High Court
Smt. Shakuntala Rani (Deceased) And ... vs Om Prakash Kohli on 4 December, 2020
Equivalent citations: AIRONLINE 2020 UTR 510
Author: Ravindra Maithani
Bench: Ravindra Maithani
RESERVED JUDGMENT
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
First Appeal No. 3441 of 2001 (Old No. 89 of 1989)
Smt. Shakuntala Rani (Deceased) and another ....... Appellant
Vs.
Om Prakash Kohli .......Respondent
Present:- Mr. Piyush Garg, Advocate for the appellant.
Mr. Siddharth Singh, Advocate for respondent.
Hon'ble Ravindra Maithani, J.
The instant first appeal is preferred against the judgment and decree dated 19.12.1988, passed in Original Suit No. 559 of 1984, Shri Om Prakash Kohli Vs. Smt.Shakuntala Rani and another, by the court of Second Additional District Judge, Dehradun (for short "the Suit"). By this judgment and decree, the suit was decreed and defendant Smt. Shakuntala Rani was directed to execute the sale deed of the property in dispute. The defendants in the Suit had initially filed the instant appeal. During the pendency of the appeal, both of them died and the appeal is continued by the appellant Bhawna Sharma.
FACTS
2. Facts necessary to decide the appeal, briefly stated, are as hereunder:-
The respondent had filed a suit for specific performance. According to it, Late Shri Babu Ram Babbar executed an agreement to sale in favour of the respondent on 05.12.1973 (" the first agreement"), whereby he agreed to execute the sale deed of the property on or before 04.12.1978. The total sale consideration was agreed at Rs.45,000/-. Out of which, Rs.30,000/- in cash was paid to Late Shri Babu Ram Babbar, as an advance and remaining sale consideration was to be paid at the time of registration of the sale 2 deed. The sale deed could not be executed and in the intervening night of 12.02.1978/13.02.1978, Shri Babu Ram Babbar died. Smt. Shakuntala Rani, who was wife of Late Shri Babu Ram Babbar thereafter, on 13.02.1978 executed an agreement ("the second agreement") with the respondent, whereby she ratified the first agreement and further agreed to execute the sale deed on or before 05.12.1984. The respondent gave notices requiring Smt. Shakuntala Rani to execute the sale deed, but she did not execute it. Thereafter, the suit was filed. Originally, the suit was filed against Smt. Shakuntala Rani only, the widow of the Late Shri Babu Ram Babbar. She filed written statement and denied all the allegations.
According to Smt. Shakuntala Rani, Late Shri Babu Ram Babbar did not execute the first agreement and he did not receive any money and even the respondent did not have enough money to pay Rs.30,000/- in the year 1973. The second agreement has also been denied, inter alia, on the ground that since the husband of Smt. Shakuntala Rani died in the intervening night of 12.02.1978/13.02.1978, on 13.02.1978, a large number of people visited her house, therefore, she was even not in such a state of mind to execute any agreement. Smt. Shakuntala Rani took a stand that she had a living son Pawan Babbar, who was owner of half of the property, but he is not the party. Therefore, without him the agreement could not have been executed.
3. Subsequent to it, the plaint was amended by the respondent and while denying that Pawan Babbar is the sone of Late Shri Babu Ram Babbar, to avoid further litigation, Pawan Babbar was also made party and according to the amended plaint, since Pawan Babbar was minor at the time of second agreement, Smt. Shakuntala Rani was his natural guardian and Pawan Babbar is also bound by the second agreement.
4. Based on the pleadings of the parties, the following issues were framed in the suit:-
3(1) Whether there was an agreement dated 5.12.73 between the plaintiff and the deceased Babu Ram Babbar to sell the property in dispute for Rs.45,000/-
and whether the said Babu Ram Babbar has received Rs.30,000/-?
(2) Whether the deceased Babu Ram Babbar had a right to execute the agreement to sell in respect of the property in dispute? If so, its effect?
(3) Whether on 13.2.78 the plaintiff and the defendant no.1 extended the period of execution of the sale deed upto 5.12.83 by ratifying the agreement to sell dated 5.12.1973? If so, its effect?
(4) Whether the plaintiff has a right to sue?
(5) Whether the defendant no.2 is the son of the deceased Babu Ram Babbar and whether the agreement dated 5.12.1973 and 13.2.78 are binding on him?
(6) Whether the suit is within time?
(7) Whether the plaintiff is entitled to claim special damages? If so, its effect?
(8) To what relief, if any, is the plaintiff entitled? (9) Whether the plaintiff is ready and willing to perform his part of obligation?
5. On behalf of the respondent, five witnesses were examined in the suit, namely, PW1 B.S. Chaudhary, Handwriting Expert, PW2 Laxman Das, PW3 V.K. Kriplani, PW4 K. N. Sharma and PW5 Kamal Nain Arora.
6. On behalf of the appellant two witnesses DW1 Shakuntala Rani, the defendant herself and DW2 Raj Singh Verma, Handwriting Expert were examined. DW2 Raj Singh Verma did not appear for cross examination. Parties have also filed documents in support of their respective cases. By the impugned judgment and decree, the suit has been decreed. Aggrieved, the original defendants filed the first appeal. As 4 stated, both the original defendants, who were appellants, died during the pendency of the appeal and now appeal is being prosecuted by the appellant.
7. Heard learned counsel for the parties through Video Conferencing and perused the record.
STANDARD OF PROOF REQUIRED
8. This is a civil suit. The appreciation of evidence is governed by the rule of preponderance of probabilities. In view of the Indian Evidence Act, 1873 ("the Evidence Act"), the facts may either be proved, disproved or not proved. But, how to do it? The burden of proof is also defined under the Evidence Act and basic rule is given under Section 101 of it, which is as hereunder:-
"101. Burden of proof.--Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist. When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person."
9. In the case of Dr. N.G. Dastane Vs. Mrs. S. Dastane, (1975) 2 SCC 326, the Hon'ble Court discussed the standard of proof in civil case and held as hereunder:-
"24. The normal rule which governs civil proceedings is that a fact can be said to be established if it is proved by a preponderance of probabilities. This is for the reason that under the Evidence Act, Section 3, a fact is said to be proved when the court either believes it to exist or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. The belief regarding the existence of a fact may thus be founded on a balance of probabilities. A prudent man faced with conflicting probabilities concerning a fact-situation will act on the supposition that the fact exists, if on weighing the various probabilities he finds that the preponderance is in favour of the existence of the particular fact. As a prudent man, so the court applies this test for finding whether a fact in issue can be said to be proved. The first step in this process is to fix the probabilities, the second to weigh them, though the two may often intermingle. The impossible is weeded out at the first stage, the improbable at the second. Within the wide range of probabilities the court has often a difficult choice to make but it is this choice which ultimately determines where the preponderance of probabilities lies. Important issues like those which affect the status of parties demand a closer scrutiny than those like the loan on a promissory note: "the nature and gravity of an issue 5 necessarily determines the manner of attaining reasonable satisfaction of the truth of the issue1 or as said by Lord Denning, "the degree of probability depends on the subject-matter. In proportion as the offence is grave, so ought the proof to be clear2. But whether the issue is one of cruelty or of a loan on a pronote, the test to apply is whether on a preponderance of probabilities the relevant fact is proved. In civil cases this, normally, is the standard of proof to apply for finding whether the burden of proof is discharged."
10. The principles as laid down in the case of Dr. N.G. Dastane (supra) has been followed subsequently also.
11. In the case of M. Siddiq Vs. Mahant Suresh Das and others, (2020) 1 SCC 1, Hon'ble Supreme Court further elaborated the standard of proof in civil cases and held that it is governed by the preponderance of probabilities standard. Hon'ble Court held as hereunder:-
720. The court in a civil trial applies a standard of proof governed by a preponderance of probabilities. This standard is also described sometimes as a balance of probability or the preponderance of the evidence. Phipson on Evidence formulates the standard succinctly: If therefore, the evidence is such that the court can say "we think it more probable than not", the burden is discharged, but if the probabilities are equal, it is not. In Miller v. Minister of Pensions, [Miller v Minister of Pensions (1947) 2 All ER 372), Lord Denning, J.
(as the Master of Rolls then was) defined the doctrine of the balance or preponderance of probabilities in the following terms: (All ER p. 373 H) "(1) ... It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence, "of course it is possible, but not in the least probable" the case is proved beyond reasonable doubt, but nothing short of that will suffice."
(emphasis supplied)
721. The law recognises that within the standard of preponderance of probabilities, there could be different degrees of probability. This was succinctly summarised by Denning, L.J. in Bater v. Bater, 1951 P. 35 (CA) where he formulated the principle thus: (p. 37) "... So also in civil cases, the case must be proved by a preponderance of probability, but there may be degrees of probability within that standard. The degree depends on the subject-matter."
(emphasis supplied)
722. The definition of the expression "proved" in Section 3 of the Evidence Act is in the following terms:
1. Per Dixon, J. in Wright v. Wright, (1948) 77 CLR 191, 210.
2. Blyth v. Blyth, (1966) 1 AER 524, 536.6
"3. ... "Proved".--A fact is said to be proved when, after considering the matters before it, the court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists."
723. Proof of a fact depends upon the probability of its existence. The finding of the court must be based on:
723.1. The test of a prudent person, who acts under the supposition that a fact exists.
723.2. In the context and circumstances of a particular case.
724. Analysing this, Y.V. Chandrachud, J. (as the learned Chief Justice then was) in N.G. Dastane v. S. Dastane held: (SCC pp. 335 - 36 para 24) "The belief regarding the existence of a fact may thus be founded on a balance of probabilities. A prudent man faced with conflicting probabilities concerning a fact situation will act on the supposition that the fact exists, if on weighing the various probabilities he finds that the preponderance is in favour of the existence of the particular fact. As a prudent man, so the court applies this test for finding whether a fact in issue can be said to be proved. The first step in this process is to fix the probabilities, the second to weigh them, though the two may often intermingle. The impossible is weeded out at the first stage, the improbable at the second. Within the wide range of probabilities the court has often a difficult choice to make but it is this choice which ultimately determines where the preponderance of probabilities lies. Important issues like those which affect the status of parties demand a closer scrutiny than those like the loan on a promissory note: 'the nature and gravity of an issue necessarily determines the manner of attaining reasonable satisfaction of the truth of the issue, [Per Dixon, J in Wright v Wright, (1948) 77 CLR 191 (Aust)], CLR at p. 210; or as said by Lord Denning, 'the degree of probability depends on the subject-matter'. In proportion as the offence is grave, so ought the proof to be clear, (Blyth v Blyth, 1966 AC 643 : (1966) 2 WLR 634; (1966) 1 All ER 524 (HL), All ER at p. 536. But whether the issue is one of cruelty or of a loan on a pronote, the test to apply is whether on a preponderance of probabilities the relevant fact is proved. In civil cases this, normally, is the standard of proof to apply for finding whether the burden of proof is discharged."
(emphasis supplied)
725. The Court recognised that within the standard of preponderance of probabilities, the degree of probability is based on the subject-matter involved.
726. In State of U.P. v. Krishna Gopal, [State of U.P. v.
Krishna Gopal, (1988) 4 SCC 302 : 1988 SCC (Cri) 928], this Court observed: (SCC p. 314, para 26) "26. The concepts of probability, and the degrees of it, cannot obviously be expressed in terms of units to be mathematically enumerated as to how many of such units constitute proof beyond reasonable doubt. There is an unmistakable subjective element in the evaluation of the degrees of probability and the quantum of proof. Forensic probability must, in the last analysis, rest on a robust common sense and, ultimately, on the trained intuitions of the Judge."
712. Burden of proof is one thing and onus of proof is something related to it. Burden of proof never shifts, but onus of proof which is basically a procedural requirement keep on shifting.
13. In the case of Gian Chand and Brothers and another Vs. Ratan Lal, (2013) 2 SCC 606, the Hon'ble Supreme Court inter alia held that " it is well settled principles of law that a person who asserts a particular fact is required to affirmatively establish it........... it has been held that the burden of proving the fact rests on the party, who substantially asserts in the issue and not the party who denies it and the said principle may not be universal in its application and there may be an exception thereto."
(para 18)
14. In the case of Anil Rishi Vs. Gurbaksh Singh (2006) 5 SCC 558, the Hon'ble Supreme Court observed as hereunder:-
"19. There is another aspect of the matter which should be borne in mind. A distinction exists between burden of proof and onus of proof. The right to begin follows onus probandi. It assumes importance in the early stage of a case. The question of onus of proof has greater force, where the question is, which party is to begin. Burden of proof is used in three ways: (i) to indicate the duty of bringing forward evidence in support of a proposition at the beginning or later;
(ii) to make that of establishing a proposition as against all counter-
evidence; and (iii) an indiscriminate use in which it may mean either or both of the others. The elementary rule in Section 101 is inflexible. In terms of Section 102 the initial onus is always on the plaintiff and if he discharges that onus and makes out a case which entitles him to a relief, the onus shifts to the defendant to prove those circumstances, if any, which would disentitle the plaintiff to the same."
15. When a case is based on any document, there are rules which govern the proof of such documents. The best evidence would be a person, who authored the document may produce the original and prove it. He may in such a situation prove the execution as well as the contents of it. But, there may be varied number of situations where the author may not be produced for proving the document. In such a situation, Section 67 of the Indian Evidence Act provides as to how signature and handwriting of a person may be proved. It reads as hereunder:-
"67. Proof of signature and handwriting of person alleged to have signed or written document produced.--If a document is alleged to be signed or to have been written wholly or in part by any person, the signature or the handwriting of so much of the document as is alleged to be in that person's handwriting must be proved to be in his handwriting."8
16. Opinion of experts or a person acquainted with the handwriting of a person may also prove signature and handwriting of a person. For this purpose, provisions are made in Sections 45 and 47 of the Evidence Act. Section 45 of the Evidence Act, speaks of opinion of the expert. According to it, opinion of the person especially skilled in handwriting, etc is relevant. Similarly, opinion of any person acquainted with handwriting is also a relevant fact. But, the question may arise that if the author of a document is not produced in evidence and either expert or some persons acquainted with his handwriting speak about it in the court, it perhaps automatically does not prove the truthfulness of the contents of the documents.
17. In the case of Madholal Sindu Vs. Asian Assurance Co. Ltd. and others, 1945 SCC Online Bombay 44. The Bombay High Court discussed this aspect of the matter as follows:-
"9. As I have already observed it was futile for Mr. Somjee to merely prove the signature or the handwriting of the person who signed or wrote the various documents without calling the said persons who were the only persons who could depose to the correctness of the contents of those various documents. Whether Deshpande, Parnajape or Jamnadas signed or wrote the various documents, was not the only issue before me. It that had been the only issued, the proof of the signature or the handwriting of Deshpande Paranjape or Jamnadas would have been enough. What was in issue, however, before me was apart from Deshpande, Paranjape or Jamnadas having signed or written those documents, whether the contents of those various documents were correct. This certainly could not be proved by Balkrishna Bhagwan Deshmukh who had not personal knowledge whatever about the contents of those various documents. It would have served no purpose whatever to admit those documents in evidence with the reservation as suggested by Mr. Taraporewalla. I was supported in this conclusion of mine by the remarks of the appeal Court in - '11 Born HCR 242 at p. 246 (A)', and I accordingly declined to admit in evidence the said various documents in spite of Balkrishna Bhagwan Deshmukh deposing before me that the said various documents were signed by or were in the handwriting of Deshpande, Paranjape or Jamnadas."
(emphasis supplied)
18. A question might arise that even if a document is proved to have been authored or signed by some person, can the case be decided merely on this basis, or the court may have to look beyond it. It is a question of testing the veracity of oral evidence vis-à-vis documentary evidence. Even if it is proved that the contents are authored by some person, the question still remains as to the correctness of the contents. A document should pass the test of "righteousness of the transactions". This phrase has been used in the context of a will and quoted from the judgment passed in the case of Fulton Vs. Andrew, (1875) LR 9 7HL 448 and referred to in the case of H. Venkatachala Iyengar Vs. B. N. Thimmajamma and others, 1959 (Supp. 1) SCR 426.
19. In the case of W. Scott Fulton (supra), it was observed that "those who take a benefit under a will, and have been instrumental in preparing and obtaining it, have thrown open them the onus of showing the righteousness of the transaction".
20. In the case of H. Venkatachala Iyengar (supra), Hon'ble Supreme Court laid down various tests with regard to correctness of a will. How to prove a will, there are different procedure. Even the rules may be different, but a document has to qualify the test of "righteousness of transaction." In para 20, in the case of H. Venkatachala Iyengar (supra), the Hon'ble Court observed as hereunder:-
"20. There may, however, be cases in which the execution of the will may be surrounded by suspicious circumstances. The alleged signature of the testator may be very shaky and doubtful and evidence in support of the propounder's case that the signature, in question is the signature, in question is the signature of the testator may not remove the doubt created by the appearance of the signature; the condition of the testator's mind may appear to be very feeble and debilitated; and evidence adduced may not succeed in removing the legitimate doubt as to the mental capacity of the testator; the dispositions made in the will may appear to the unnatural, improbable or unfair in the light of relevant circumstances; or, the will may otherwise indicate that the said disposition may not be the result of the testator's free will and mind. In such cases the court would naturally expect that all legitimate suspicions should be completely removed before the document is accepted as the last will of the testator. The presence of such suspicious circumstances naturally tends to make the initial onus very heavy; and, unless it is satisfactorily discharged, courts would be reluctant to treat the document as the last will of the testator. It is true that, if a caveat is filed alleging the exercise of undue influence, fraud or coercion in respect of the execution of the will propounded, such pleas may have to be proved by the caveators; but, even without such pleas circumstances may raise a doubt as to whether the testator was acting of his own free will in executing the will, and in such circumstances, it would be a part of the initial onus to remove any such legitimate doubts in the matter."
21. In the case of each transaction, in fact, it has to be proved that the document is executed by its author with his free will and mind.
POINTS FOR DETERMINATION
22. After hearing the parties, this Court records the following points for determination:-
10(1) Whether there was an agreement dated 5.12.73 between the respondent and the deceased Babu Ram Babbar to sell the property in dispute for Rs.45,000/-
and whether the said Babu Ram Babbar has received Rs.30,000/-?
(2) Whether on 13.2.78 the respondent and Late Smt. Shakuntala Rani extended the period of execution of the sale deed up to 5.12.84 by ratifying the agreement to sell dated 5.12.1973? If so, its effect?
(3) Whether the suit is within time?
(4) Whether the plaintiff is ready and willing to perform
his part of obligation?
Discussion and Conclusion
Point No.1:
23. This point relates to first agreement as to whether Late Shri Babu Ram Babbar executed an agreement to sell in favour of the respondent to sell the property in dispute for Rs.45,000/- and received Rs.30,000/- as an advance. In the written statement, both the original defendants denied of having executed any such agreement by Late Shri Babu Ram Babbar. According to them, a plot was taken on loan. One of the portions was constructed in the year 1973 and the construction was completed in the year 1975. In para 22 of the written statements, it is pleaded that the respondent was not financially in a position to give Rs.30,000/- to Late Shri Babu Ram Babbar in the year 1973 and this agreement does not bear signature of Late Shri Babu Ram Babbar.
24. Learned counsel for the appellant would submit that the agreement dated 05.12.1973 was never executed by Late Shri Babu Ram Babbar. He was constructing the house for his own use for which he had taken loan; he did not execute the sale deed; the respondent did not appear in the witness box to prove the contents of the first agreement; the respondent was not financially in a position to pay Rs.30,000/- to Late Shri Babu Ram Babbar on 05.12.1973, because in the year 1987, he was 11 getting salary of Rs.400/- per month. The evidence of PW1 B.S. Chaudhary cannot be read into evidence, because the signature with which comparison was made were not admitted; the register, on which reliance was placed for admitted signature cannot be said to be the register ever maintained in safe custody; the signature of Late Shri Babu Ram Babbar are not admitted in the register.
25. On the other hand, learned counsel for the respondent would submit that the execution of the agreements has not been challenged. It is not the case of the appellant that the agreements were forged. The agreements have been proved by the witnesses, whose evidence is reliable. Handwriting expert has also proved the signature of Late Shri Babu Ram Babbar in the first agreement.
26. PW1 B.S. Chaudhary is a Handwriting Expert. From the meeting register of Municipal Board Dehradun dated 06.10.1976, 07.12.1976 and 30.12.1976, he took the admitted signature and compared with the signature on the first agreement. Thereafter, he gave his report. The report of the Handwriting Expert is not on record. Even it is not on the record of the lower court, which is before this Court. It appears that it has been destroyed. So the Court has no opportunity to appreciate the report for the want of the original record. But, how could PW1 B.S. Chaudhary say that the signature on the Municipal Board register are admitted. The appellant has been denying it. It is a categorical case of the appellant that the first agreement does not bear the signature of Late Shri Babu Ram Babbar. When questioned, in his cross examination, at Page 4, PW1 B.S. Chaudhary told that he was informed by the counsel for the respondent as to which signature are disputed and which are admitted. According to him, even he does not know who the respondent was. He knew only PW2 Laxman Das Virmani.
27. Learned court below in paras 10 and 11 of the judgment dealt with this aspect. Particularly, in para 11, the learned court recorded that the register was summoned from the Municipal Board and it has come in 12 the proper custody and the attendance register bear the signature of all the members. The basis of this finding is not revealing from the evidence. There is no witness examined, who would say that he had brought some register from Municipal Board, which bear the signature of Late Shri Babu Ram Babbar. There is no witness to tell the court that on particular dates, namely, 06.10.1976, 07.12.1976 and 30.12.1976, Shri Babu Ram Babbar was present in the meeting and he signed the register. Learned court below observed that since DW1 Shakuntala Rani admitted that her husband was a Board Member, the signature on the Board meeting register cannot be doubted. This may not be correct because no person from the Municipal Board has stated that the register was kept by the Municipal Board in the normal course of their business. There is no evidence that the register from which the admitted signature were allegedly taken was in the proper custody. As stated, there is no evidence of any person from the Municipal Board saying that on the relevant dates Late Shri Babu Ram Babbar attended the meeting and signed the register.
28. A perusal of the trial court record reveals that on 19.06.1986 on some application of the respondent, a register was summoned, which was received on 25.08.1986. Who sent it? and from where it was summoned? the order sheet is not revealing. The order sheet reveals further that on 11.09.1986, the photographs were taken before the court. But, the question still remains, as to how the signature on the register be said to be admitted signature of Late Shri Babu Ram Babbar? The respondent has, in fact, utterly failed to prove that the signature compared by PW1 B.S. Chaudhary are admitted signature of Late Shri Babu Ram Babbar. In the result, it is not proved that comparison of handwriting was made by PW1 B.S. Chaudhary from any admitted signature of Late Shri Babu Ram Babbar. On this ground alone, the report of PW1 B.S. Chaudhary and his deposition cannot be read into evidence. The expert report with regard to first agreement does not help the respondent.
1329. PW2 Laxman Das has stated that on 05.12.1973, an agreement to sell was executed by Late Shri Babu Ram Babbar in favour of the respondent and Rs.30,000/- as an advance was paid to Late Shri Babu Ram Babbar by the respondent. This witness proved his signature and signature of PW3 V.K. Kriplani. According to him, the first agreement was written by PW5 Kamal Sain Arora. All these witnesses have stated about it. On the one hand, PW2 Laxman Das says that Rs.30,000/- were given by the respondent to Late Shri Babu Ram Babbar in his presence. Whereas, on the other hand, PW3 V.K. Kriplani would say that Rs.30,000/- were given to Late Shri Babu Ram Babbar by PW2 Laxman Das to whom the money was given by the respondent. PW5 Kamal Sain Arora has also stated about it. But, PW2 Laxman Das did not say that he gave money to Late Shri Babu Ram Babbar, after receiving it from the respondent. Why is this? This contradiction under the facts and circumstances of the case is not minor. It goes at the root of the matter and discredit the evidence of the witnesses on this aspect.
30. PW3 V.K. Kriplani would say in his cross examination that he knew respondent for 8 to 10 years and in first paragraph of his cross examination, he categorically says that prior to 5 to 6 years from the date of statement, he had no relationship with the respondent. This witness, PW3 V.K. Kriplani was examined on 21.04.1987. If he did not know the respondent beyond 5 to 6 years prior to 21.04.1987, how can he witnessed the first agreement which was allegedly executed on 05.12.1973? Learned court below in para 8 of the judgment did not accept the argument on behalf of the appellant that statement of PW3 V.K. Kriplani is not reliable with regard to the first agreement on the ground that in his cross examination, PW3 V.K. Kriplani has stated that he used to meet Shri Babu Ram Babbar on account of Biradri. But, this finding is not supported by any evidence. As stated in para 1 of the cross examination at page 3, PW3 V.K. Kriplani has categorically stated that 5-6 years prior to the date of his statement, he had no connection with the respondent. The statement of PW3 V.K. Kriplani does not inspire any confidence.
1431. PW5 Kamal Sain Arora is the Scribe. Whatever statement he has given, it is on the basis of perusal of the document which he had prepared.
32. The Court has already held that it is not proved that Late Babu Ram Babbar had signed the first agreement. The Court is looking into other circumstances within which the first agreement was allegedly executed. According to the first agreement, Late Babu Ram Babbar agreed to sell the property for Rs.45,000/- on 05.12.1973. But what was the cost of the property? At page nos. 13 and 14 of his statement, PW2 Laxman Das has stated that Late Babu Ram Babbar spent about 40,000/- in the construction of his house in the property and at another page, at page no.15 of his statement, PW2 Laxman Das has stated that after agreement Late Babu Ram Babbar also constructed a store, bathroom etc. in the property and he was told by one of the neighbours, Ahluwalia as to why Babu Ram Babbar is raising construction on the property, which he had already sold.
33. DW1 Smt. Shakuntala Rani, wife of Late Babu Ram Babbar in her statement has categorically stated that they spent about Rs.50,000/- to Rs.60,000/- in the construction of the house in the year 1973. Subsequently, in the year 1975, they raised further construction, on which Rs.20,000/- were spent. According to DW1 Smt. Shakuntala Rani, the total cost is about Rs.70,000/- and even according to PW2 Laxman Das, the cost of construction was more than Rs.40,000/- and the cost of the land was separate. Why should a person sell the property for less price? Why should a person raise further construction on the property, which he had already sold? These questions have not been answered by the respondent. It creates doubt on the authenticity or the contents of the first agreement.
34. Although, PW2 Laxman Das, at page no. 14 of his statement, has stated that since after purchase of the property, Late Babu Ram Babbar fell sick, he was not happy with the property and he wanted to sell it. But, DW1 Shakuntala Rani has categorically denied it. She has stated 15 that her husband was already sick and it is not that after purchase of the property, he fell sick. There are oral statements versus oral statements. It was the respondent to prove his case. The case of the respondent is not inspiring any confidence on this aspect also.
35. It is argued on behalf of the respondent that the appellant has not stated that the first agreement was forged. It is true that categorically, it is not the case of the appellant that the agreement was forged, but they denied existence, execution and truthfulness of both the agreements. So, it is a burden of the respondent to prove the documents and to prove their contents and their truthfulness as well.
36. It is categorically stated in the written statement by the appellant that the respondent had no financial resources to pay Rs.30,000/- on 05.12.1973 and he did not pay any amount to Late Babu Ram Babbar. Now, the best person to tell about his financial resources would be the respondent himself, but he did not appear in the witness box. At this stage, the Court is not taking any adverse inference for it. The Court is looking into the material.
37. PW2 Laxman Das is the Power of Attorney holder. He filed this Power of Attorney on 21.04.1987, when he was examined in the court, not before that. The Power of Attorney is already on record, which is dated 28.11.1985. According to this Power of Attorney, since the respondent used to visit out station in connection with his work he executed the Power of Attorney. This statement itself is falsified by the statement of PW2 Laxman Das. According to PW2 Laxman Das, the respondent is a worker in the BAR of PW2 Laxman Das. PW2 Laxman Das runs a Hotel, in which respondent no.2 is a worker. In page 7 bottom and page 8 of his statement, PW2 Laxman Das has stated that the respondent executed the Power of Attorney in his favour, because he was under the impression that PW2 Laxman Das had dragged him into litigation. He was much disturbed with all what was happening, but this is not what is stated in the Power of Attorney. According to Power of 16 Attorney, the respondent used to visit out station, therefore, he executed the Power of Attorney. The statement which is, in fact, falsified by the statement of PW2 Laxman Das. So, why did the respondent not appear in the witness box? Why did he not give an opportunity to the appellant to cross examine him about his case. There is no answer on behalf of the respondent.
38. PW2 Laxman Das at page 6 of his statement states that he was paying salary of Rs.400 /-per month to the respondent and earlier he was paying Rs.300/- per month. In the year 1987, the respondent was getting salary of Rs. 400/-. The first agreement was allegedly executed on 05.12.1973 and according to it, on that date Rs.30,000/- cash was given by the respondent. How did respondent get that money? The learned court below wrongly cast the burden on the appellant. Wherein in page 33, it was observed that it was the appellant to produce the passbook and other documents of the respondent to show that he had no means. In fact, it was the negative burden which was cast upon the appellant. It is the respondent to prove that he had means and he paid Rs.30,000/-. PW2 Laxman Das, at one stage, at Page 7 of his statement has stated that the respondent sold his jewellery to pay Rs.30,000/-. But, he also says that he did not go alongwith the respondent. Then how can PW2 Laxman Das say about the source of money with the respondent in the year 1973. This statement has no basis. Respondent himself has not appeared in the witness box to show and prove that he had Rs.30,000/- on 05.12.1973, which he gave to Late Babu Ram Babbar. In fact, it is also not proved by the respondent that any amount was paid on that date by the respondent to Late Babu Ram Babbar. It also makes the first agreement much doubtful.
39. Having considered all the attending factors, this Court is of the view that, in fact, the respondent has not been able to prove that on 05.12.1973, any agreement to sell was executed by Late Babu Ram Babbar and he was paid Rs. 30,000/- in advance. The learned court below committed an error in deciding this issue in favour of the respondent. The point no. 1 is decided accordingly.
17Point No.2
40. This point relates to second agreement dated 13.02.1978, which was allegedly executed by Smt. Shakuntala Rani, thereby ratifying the first agreement and agreeing to execute the deed of sale on or before 05.12.1984. It is the case of the respondent that after the death of her husband on 12.02.1978, Smt. Shakuntala Rani executed a deed on 13.02.1978, ratifying the first agreement and agreeing to execute the sale deed on or before 05.12.1984. The original agreement has been produced in evidence. In fact, on behalf of the respondent, Handwriting Expert has also been examined to prove that the second agreement bear the signature of Smt. Shakuntala Rani. PW1 B.S. Chaudhary, Handwriting Expert has stated about it and he took the signature on the second agreement and compared with the signature of Smt. Shakuntala Rani, the original defendant in her written statement, which cannot be doubted with regard to their admissibility. After comparison, according to PW1 B.S. Chaudhary, the signature on the written statement of Smt. Shakuntala Rani and signature on the second agreement are made by one and the same person. He had submitted a report 73C, which is now not on record. It appears that it has now been destroyed. The Court has no opportunity to examine or read the report of PW1 B.S. Chaudhary for its analysis.
41. PW2 Laxman Das has stated about the second agreement. According to him, after the death of Late Babu Ram Babbar, on 13.02.1978, Smt. Shakuntala Rani executed another agreement and ratified the first agreement and also extended the time for execution of sale deed. According to PW2 Laxman Das, second agreement was executed in the presence of this witness and in the presence of PW3 V.K. Kriplani and PW4 K.N. Sharma. PW3 V.K. Kriplani and PW4 K.N. Sharma have also stated about it.
1842. On behalf of the appellant, the original defendant Smt. Shakuntala Rani examined as DW1. In her statement, she denied of having executed the second agreement on 13.02.1978. She also denied in her cross examination of having purchased any stamp for that purpose on 02.02.1978. According to her, after the death of her husband on 12.02.1978, many persons visited her house on 13.2.1978 and her house was crowded on that date, as the dead body of her husband was lying there, which was cremated in the late evening on 13.02.1978.
43. On behalf of the appellant, it is argued that as per respondent himself, second agreement was a fresh agreement and it was not merely an extension of time. Therefore, in law, it requires registration and without registration, it cannot be read into evidence. It is also argued that it is not natural that a woman would execute any deed in a free state of mind, when the dead body of her husband is lying in the house and waiting for cremation. Therefore, it is argued that even if it is proved that the second agreement was executed on that date, it cannot be relied upon, as it must not have been executed in a free state of mind.
44. In support of his argument, learned counsel placed reliance upon the judgment passed in the case of Smt. Shanti Bai Vs. Smt. Miggo Devi and others, AIR 1980 SC 2008.
45. In the case of Smt. Shanti Bai (supra), a woman had executed an adoption deed on 13th day after the death of her husband. The Hon'ble Court held that under such circumstances, she might not have understood the contents. It was held that "moreover, even if this recital was read over to the appellant before she signed the deed of adoption we cannot attach any undue importance to it, because the deed of adoption was executed on 01.03.1944, on the 13th day after the death of Kedarnath, and we find it difficult to believe that the appellant in the state of mind in which she must have been at the time in view of the death of her deceased husband, could possibly have understand all that was written in the deed 19 of adoption or appreciated the implication of the recital set out in the deed of adoption."
46 On the other hand, learned counsel for the respondent would argue that the second agreement dated 13.02.1978 has been proved by the witnesses. PW1 B.S. Chaudhary, the Handwriting Expert has also proved it. It is argued that emotions cannot substitute the evidence and it makes no difference that the husband of Smt. Shakuntala Rani had died on the previous night and his dead body was still lying in the house because it is argued that generally, in order to secure peace to the departed sole, such documents are executed before cremation. It is also argued that agreement dated 13.02.1978 is not any agreement to sell, instead it is a time extension application only. It does not create any new right. Therefore, it does not require any registration.
47. In the case H. Venkatachala Iyengar (supra), the Hon'ble Court has reaffirmed the principle of "righteousness of transaction" as laid down in the case of Fulton (supra). It is the respondent to prove that Smt. Shakuntala Rani executed the document with her free will. The "righteousness of the transactions" also requires that there should not be any legitimate suspicion about the circumstances under which the document was executed. Admittedly, the stamp for agreement dated 13.02.1978 was purchased on 02.02.1978. It is marked on the back of the document. But, DW1 Shakuntala Rani has denied of having purchased any such stamp. In the instant case, this document is surrounded by a lot of suspicions which in fact diminishes its evidentiary value.
48. According to the respondent, the first agreement was executed on 05.12.1973, for which, time to execute the document was up till 04.12.1978. Late Babu Ram Babbar was still alive on 02.02.1978. What was the occasion for Smt. Shakuntala Rani to purchase any stamp in advance? Was she waiting for her husband to die? It is important because according to the first agreement, the time to execute the deed was up till 04.12.1978. In the month of February, 1978, the date was not at all 20 expiring. Who purchased this stamp for agreement dated 13.02.1978? Nothing is proved or shown.
49. According to PW2 Laxman Das, when Babu Ram Babbar died on 12.02.1978, the respondent became upset. He approached this witness and they visited the house of Shakuntala Rani at about 9:00 in the morning. They saw Shakuntala Rani sitting near the dead body of Babu Ram Babbar in the verandah. PW2 Laxman Das states that she requested Smt. Shakuntala Rani to ratify the agreement saying that respondent is much upset. At which, according to PW2 Laxman Das, Smt. Shakuntala Rani told that "I have given you stamp, get it typed and take my signature" (Page 10 Line 3rd). But, in the same sequel, this witness says that Smt. Shakuntala Rani had given the stamp to the respondent seven days prior to the death of her husband, in her house. As stated, the respondent has not appeared as a witness. In the middle of page 10 of his statement, PW2 Laxman Das says that on 13.02.1978, in the morning, they took stamp from Smt. Shakuntala Rani from her house and then reached the court. The statement of PW2 Laxman Das is self contradictory. As stated, at one stage, he says that Smt. Shakuntala Rani had given the stamp to the respondent 7-8 days before the death of her husband in her house. But, at the later stage, he says that he took stamp from the house of Smt. Shakuntala Rani on 13.02.1978 and reached the court. This further doubts the genuineness of this agreement dated 13.02.1978.
50. PW3 V.K. Kriplani is a tenant of PW2. PW4 K.N. Sharma is an Advocate, who says that he drafted the agreement dated 13.02.1978. At page 3 of his statement in his cross examination, he admits that he did not see dead body of Babu Ram Babbar on 13.02.1978, when he visited her house alongwith PW2 Laxman Das. He further says that Smt. Shakuntala Rani was called from inside the room. He was questioned about the verandah. He says that from the gate, he could see the verandah. In next page no.4 of his statement, he further states about it that he could not get any sense of bereavement in the house of Smt. Shakuntala Rani on 21 13.02.1978. This is just in contradiction to what PW2 Laxman Das has stated. According to PW2 Laxman Das, Smt. Shakuntala Rani was sitting near the dead body of her husband in the verandah, from where she was called. There was an atmosphere of bereavement. Cremation of the husband of Smt. Shakuntala Rani had yet not taken place.
51. At page 2 of his statement PW4 K.N. Sharma would say that he was told to prepare an agreement saying that the limitation is expiring. This also he states at page 4 of this statement. When questioned, he could not tell as to whether the limitation of the first agreement was expiring or not. Agreement dated 13.02.1978 is on record. It is quite in detail. It writes every minute detail with regard to the first agreement. This Court had already concluded that it is not proved that the first agreement was ever executed by Late Babu Ram Babbar. The second agreement categorically records that the sale deed was to be executed till 05.12.1984. Apparently, the limitation of first agreement was not expiring. PW4 K.N. Sharma is an Advocate. PW1 Smt. Shakuntala Rani had lost her husband on 12.02.1978. The dead body of her husband was lying in her house. Admittedly, many people were visiting the house. They were waiting for the family members of Smt. Shakuntala Rani to come from the out station. The cremation took place at about 9:00 in the late eveningp. Under such circumstances, it cannot be presumed that if ever Smt. Shakuntala Rani put her signature on the agreement dated 13.02.1978, it was signed by her in a free state of mind, understanding the nature of the documents and its consequences. The contents of this document are not proved and they cannot be read into evidence.
52. An argument has been raised that agreement to sell also requires registration in view of the amendment in Section 54 of the of the Transfer of Property Act, 1882. It is also argued that the agreement dated 13.02.1978 was required to be registered because it is a fresh agreement. To argue this point, learned counsel for the appellant referred to para 3 and prayers of the plaint and referred to Section 54 of the of the Transfer of Property Act, 1882 and Section 17 of the Registration Act, 1908.
2253. On the other hand, learned counsel for the respondent would argue that the agreement dated 13.02.1978 does not create any right. It was only time extension agreement, therefore, it does not require registration. In support of his contentions, learned counsel placed reliance upon the principles of law, as laid down in the case of Deshraj Vs. Dharamveer Singh and others, (2006) 1 UD 250, wherein the Hon'ble Court, in para 8 of the judgment held that a document which does not create any right or interest or agree to transfer any right or interest and is merely a ratification memo, does not require any registration.
54. It is true that Section 54 of the Transfer of Property Act, 1882, as applicable in the State requires that contract for sale can be made only by a registered instrument and it is also true that Section 17 (1) (f) of the Registration Act, 1908, requires registration of any instrument as required by any law for the time being in force to be registered. Other amendments were also incorporated under Section 17 of the Registration Act, 1908. But, the question is whether the agreement dated 13.02.1978 is an agreement to sell.
55. In para 3 of the plaint, the respondent has written that on 13.02.1978, Smt. Shakuntala Rani ratified the agreement dated 05.12.1973 and further agreed to execute the deed of sale by 05.12.1973. In fact, alleged document executed on 13.02.1978 is not a fresh agreement, it is only time extension text, which does not create any right or interest on its own, therefore, it does not require any registration as such. Moreover, this is only an academic question now, because this Court has already held that this second agreement dated 13.02.1978 has not been proved. It is not proved that on 13.02.1978 Smt. Shakuntala Rani extended the period of execution of the sale deed up to 05.12.1984 by ratifying the agreement to sell dated 05.12.1973. The respondent cannot take any benefit of this document.
56. The point no.2 is decided accordingly.
23Point No.3
57. This is a point relating to limitation. This issue also loses its importance now, because this Court has already held that neither agreement dated 05.12.1973, nor agreement dated 13.02.1978 have been proved by the respondent. Therefore, the respondent has no cause to litigate. There is no question as to limitation as such. The point no.3 stands disposed of accordingly.
Point No.4
58. This point relates to the readiness and willingness of the respondent to perform his part of obligation. This Court has already held that both agreements dated 05.12.1973 and 13.02.1978 have not been proved by the respondent. This point also has academic relevance only. The suit of the respondent is liable to be dismissed on the basis of findings on point nos. 1 and 2.
59. Insofar as, the questions of readiness and willingness are concerned, this Court has held that in fact, the respondent could not prove that he had financial capacity to pay Rs.30,000/- to Late Babu Ram Babbar on 05.12.1973. On behalf of respondent PW2 Laxman Das has stated that after giving notice on 05.12.1973, the respondent had appeared in the Registrar Office alongwith the bank draft of Rs.15,000/- to execute the sale deed. Therefore, he was ready and willing to execute his part of the contract.
60. On behalf of the appellant, it is argued that readiness and willingness is a mental state of mind and since respondent himself has not examined as a witness and after filing written statement, he did not appear in the court. Therefore, it cannot be said that he was ready and willing to execute his part of contract. In support of his contention, learned counsel for the appellant place reliance upon the principles of law as laid down in 24 the case of Kamal Kumar Vs. Premlata Joshi and others, (2019) 3 SCC 704, Mehboob-ur-Rehman (Dead) through Lrs. Vs. Ahsanul Ghani, 2019 SCC Online SC 203, Man Kaur (Dead) by LRs. Vs. Hartar Singh Sangha, (2010) 10 SCC 512 and Ravi Setia Vs. Madan Lal and others, (2019) 9 SCC 381.
61. In the case of Kamal Kumar (supra), the Hon'ble Court observed as hereunder:-
"7. It is a settled principle of law that the grant of relief of specific performance is a discretionary and equitable relief. The material questions, which are required to be done into for grant of the relief of specific performance.
7.1 First, whether there exists a valid and concluded contract between the parties for sale/purchase of the suit property.
7.2 Second, whether the plaintiff has been ready and willing to perform his part of contract and whether he is still ready and willing to perform his part as mentioned in the contract.
7.3. Third, whether the plaintiff has, in fact, performed his part of the contract and , if so, how and to what extent and in what manner he has performed and whether such performance was in conformity with the terms of the contract.
7.4 Fourth, whether it will be equitable to grant the relief of specific performance to the plaintiff against the defendant in relation to suit property or it will cause any king of hardship to the defendant and, if so, how and in what manner and the extent if such relief is eventually granted to the plaintiff.
7.5 Lastly, whether the plaintiff is entitled for grant of any other alternative relief, namely, refund of earnest money, etc. and, if so, on what grounds."
62. In the case of Mehboob-ur-Rehman (supra), also it was inter alia held that specific performance of a contract cannot be enforced in favour of the person who failed to prove that he has already perform or has always been ready and willing to perform the essential terms of a contract which are to be performed by him.
63. In the case of Man Kaur (supra), the Hon'ble Court, inter alia, held that it is the plaintiff to prove that he was always been ready and willing to perform his part of contract and he should necessarily step into the witness box to give evidence. The Court observed as hereunder:-
"17. To succeed in a suit for specific performance, the plaintiff has to prove: (a) that a valid agreement of sale was entered into by the defendant in his favour and the terms thereof; (b) that the defendant committed breach of the contract; and (c) that he was always ready and willing to perform his part 25 of the obligations in terms of the contract. If a plaintiff has to prove that he was always ready and willing to perform his part of the contract, that is, to perform his obligations in terms of the contract, necessarily he should step into the witness box and give evidence that he has all along been ready and willing to perform his part of the contract and subject himself to cross-examination on that issue. A plaintiff cannot obviously examine in his place, his attorney- holder who did not have personal knowledge either of the transaction or of his readiness and willingness. Readiness and willingness refer to the state of mind and conduct of the purchaser, as also his capacity and preparedness on the other. One without the other is not sufficient. Therefore, a third party who has not personal knowledge cannot give evidence about such readiness and willingness even if he is an attorney-holder of the person concerned."
(emphasis supplied)
64. In the case of Ravi Setia (supra), Hon'ble Court observed that the plaintiff has to demonstrate readiness and willingness throughout to perform his obligation under a contract.
65. On behalf of the respondent, it is argued that plaintiff's case may be proved without the plaintiff having been examined in to the evidence if the other evidence can prove the case. Personal examination of the plaintiff is not required. In support of his contention, learned counsel placed reliance upon the principles of law as laid down in the case of Pandurang Jivaji Apte Vs. Ramchandra Gangadhar Ashtekar, (dead) by LRs and others, AIR 1981 SC 2235 and Rattan Dev Vs. Pasam Devi, 2002 (2) Allahabad Rent Cases 592.
66. In the case of Pandurang Jivaji (supra), the question was with regard to the validity of a attachment before judgment. In such case, the Hon'ble Court observed as hereunder:-
"11. In our opinion the question of drawing an adverse inference against Apte and Bavdekar on account of their absence from the court would arise only when there was no other evidence on the record on the point in issue. The first appellate court had relied upon the admission of the decree-holder himself and normally there could be no better proof than the admission of a party. The High Court, however, has observed in its judgment that the decree-holder has made no admission in his evidence which would justify refusal to draw adverse inference for the failure of Apte and Bavdekar to step into the witness box."26
67. In the case of Rattan Dev (supra), the Hon'ble Supreme Court placed reliance upon the principles of law as laid down in the case of Ishwar Bhai C. Patel alias Bachu Bhai Patel v. Harihar Behera and another, JT 1999 (2) SC 250, and observed as hereunder:-
"5 Learned Counsel for the respondent has placed reliance on Ishwar Bhai Ishwar Bhai C. Patel alias Bachu Bhai Patel v. Harihar Behera and another, JT 1999 (2) SC 250 : 1999 SCFBRC 189, wherein this Court has emphasized that withholding of the plaintiff himself from the witness box and thereby denying the defendant an opportunity for cross-examination of himself results into an adverse inference being drawn against the plaintiff. That proposition of law is undoubtable. However, as we have already said, that is a fact to be kept in view and taken into consideration by the Appellate Court while appreciating other oral and documentary evidence available on record. May be that from other evidence - oral and documentary - produced by plaintiff or otherwise brought on record the plaintiff has been able to discharge he onus which lay on him, and, subject to the Court forming that opinion, a mere abstention of plaintiff himself from the witness box may pale into insignificance."
68. This Court had already held that in fact why the respondent issued Power of Attorney, is still doubtful. He was a person, who was working at a BAR in the hotel of PW2 Laxman Das. He allegedly executed the Power of Attorney in the year 1985 saying that he used to go out station in connection with his work. Whereas, this statement in the Power of Attorney has been destroyed by the statement of PW2 Laxman Das, who says that respondent is generally sick and upset, therefore, he executed the Power of Attorney. Readiness may be a financial aspect but willingness is the state of mind. It is the respondent alone who would have revealed his state of mind. A power of attorney holder cannot speak about state of mind. But, the respondent did not appear in the witness Box. He did not provide any opportunity to the appellant to cross examine him on this aspect. It refers only one and one conclusion that the respondent was never ready and willing to perform his part of alleged contract, which this Court has held was not proved. Therefore, according to this Court, it is not proved that the respondent was ever ready and willing to perform his part of alleged contract. This point is decided accordingly.
2769. In view of the aforesaid, this Court is of the view that the suit filed by the respondent ought to have been dismissed by the Court. But, the learned court below committed an error in decreeing the suit. Accordingly, the appeal deserves to be allowed.
70. The appeal is allowed.
71. The judgment and decree dated 19.12.1988 passed in original suit no. 559 of 1984, is set aside. The suit filed by the respondent is dismissed.
(Ravindra Maithani, J.) 04.12.2020 Jitendra