Rajasthan High Court - Jaipur
Badri Ram vs Prithvi Raj on 1 February, 2002
Equivalent citations: 2002(3)WLN65
Author: Prakash Tatia
Bench: Prakash Tatia
JUDGMENT Tatia, J.
1. This is an appeal against the judgment and decree dated 11.4.2001 passed by the learned Additional District Judge No.1, Sri Ganganagar, by which the learned Additional District Judge No. 1, Sri Ganganagar decreed the suit of the plaintiff for specific performance of the contract dated 27.6.1998.
2. Brief facts of the case are that the plaintiff filed the suit for specific performance of the contract against the defendant alleging that the defendant agreed to sell six bighas of agricultural land from his share in the joint holding land of 18 bighas and 17 biswas. The defendant executed agreement dated 27.6.98. The defendant received Rs. 2,80,000/- in pursuance of the above agreement, it was agreed between the plaintiff and the defendant that the sale-deed will be executed by 26.6.1999. According to the plaintiff, the plaintiff purchased the above land by paying the market cost of the land. The defendant, after getting the above amount of Rs.2,80,000/-, did not execute sale-deed in favour of the plaintiff. It is also submitted that though it is mentioned in the agreement that possession of the land has been handed over tc the plaintiff but, in fact, possession was not handed over to the plaintiff. When the defendant avoided to execute the sale-deed and to hand over the possession of the land, the plaintiff moved an application on 27.6.99 before the Sub-Registrar, Hindumalkot for getting registration of the agreement, upon which the notice was issued by the Sub-Registrar. Hindumalkot. The defendant, in response to the above notice, appeared in the office of the Sub-Registrar on 3.8.99 and 20.8.99. According to the plaintiff, the defendant-appellant agreed execution of the agreement in the office of the Sub- Registrar, upon which the order dt.20.8.99 was passed and the plaintiff was directed to deposit stamp-duty. The plaintiff further pleaded that he is ready and willing to perform his part of the contract. The defendant did not comply with the terms of the agreement nor he gave possession of the land from the joint holding and, therefore, the suit was filed.
3. The defendant submitted the written statement and stated that he never entered into an agreement for sale of the above land. No consideration was received by the defendant and it was submitted that the plaintiff is the Benami person of Firm Gangaram Jaisaram. It was also submitted that the land in dispute is ancestral property and is in possession of his brother Brijlal and his son.
4. The defendant, in additional plea, stated that the above agreement dated 27.6.1998 was executed without any consideration and, in fact, the defendant is having business relation with the Firm Gangaram Jaisaram. This business relation is since last 23 to 24 years. The defendant was owning some money of the above Firm, therefore, on 27.6.1998, the partner of the Firm, Rameshwar Lal and witness to the agreement Surajpal, said to the defendant that since they have to receive money from the defendant, therefore, the defendant may execute some document and further stated that they are not going to take the agricultural land of the defendant nor it is the market value of the land. According to the defendant, the defendant, relying upon Rameshwar and Surajpai, signed the document and also wrote on the document, as stated by the above persons. Therefore, according to the defendant the above agreement to sell is totally a fabricated and false document. The stamps were not purchased by the defendant and the defendant cannot execute the sale-deed as the land is of joint holding of the defendant and his family members.
5. The trial court framed as many as seven issues. The plaintiff appeared in the witness-box as PW-1 and produced witnesses PW-2 Mohan Lal, PW-3 Satish Kumar, PW-5 Rameshwar Lal and PW-5 Surajpal and produced the document agreement Ex.2, copy of Jamabandi Ex.1, Notice Ex.3 order of of the office of the Sub-Registrar Ex.4, Receipt Ex.5 and copy of the Register of the Deed- writer Ex.6. In rebuttal, the defendant appeared as DW-1 and produced witnesses DW-2 Kharta Ram and DW-3 Mahaveer.
6. After hearing arguments, the trial court decided issue No. 1 against the defendant and negatived the plea of the defendant that agreement dated 27.6.1998 is false and fabricated document. The trial court, while deciding issue No. 2, held that the payment of Rs. 2,80,000/- is proved in view of the admission of the defendant that he wrote on Ex.2 that he received Rs. 2,80,000/- The trial court also held that the plaintiff is ready and willing to perform his part of the contract. Issue Nos. 4, 5 and 6 were with respect to the defence taken by the defendant that the above land was ancestral property and presently the land is of joint holding and whether other co-sharers are necessary parties, this issue was decided against the defendant. In view of the above findings, the learned trial court decreed the suit of the plaintiff.
7. The learned counsel for the appellant challenged the findings recorded by the trial court substantially on issue Nos. 1 and 2. According to the learned counsel for the appellant, the above document is forged, fabricated and false document for which the learned counsel for the appellant vehemently submitted that this is an admitted fact that the facts mentioned in the agreement dated 27.6.1998 are not the correct facts. The stamp for the agreement dated 27.6.1998 was not purchased by the defendant as there is no signature of the defendant on the back of the stamp. The learned counsel for the appellant submitted that there are other circumstances which shows that the document was got executed fraudulently and the signature of the defendant was obtained on blank sheet and, thereafter, this document was got executed. The fact with respect to the nature of the land given in the agreement is also wrong. The cost of the land was more than mentioned for consideration of the land in the agreement and there are contradictions in the pleading and the evidence and agreement with respect to the purpose for the sale of the land. It was also submitted that no notice was given by the plaintiff to the defendant before filing getting the registration of the agreement. The learned counsel for the appellant also submitted that the plaintiff-respondent is unreliable witness as he gave false statement on oath that he has no relationship with Rameshwar and Surajpal whereas the witness PW-5 Surajpal stated that the plaintiff is his maternal uncles's son, therefore, brother.
8. To appreciate the facts of the case, it is relevant to mention that the plaintiff-respondent alleged that the agreement (dated 27.6.1998 was executed by the defendant, for which, the defendant, in his written statement, very categorically stated that:
^^QeZ ds ikVZuj jkes'ojyky ok lwjtiky xokgku bZdjkjukek gS ftUgksaus izfroknh ls fnukad 27-6-98 dks dgk fd viuh fj'rsnkjh gS vki ls dqN :i;s ysus gS ftldh fy[kk i<+h dj ysrsa gS a rFkk Ñf"k Hkwfe uk rks geus ysuh gS uk gh ;g cktkj ewY; gS dsoy fo'okl gsrq fy[kk i<+h djuh gS A izfroknh lh/kklk/kk [ksrhgj vkneh gS rFkk QeZ xaxkjke fj'rsnkjh esa gS blfy;s jkes'oj ok lwjtiky ij fo'okl djs gq, mudh nqdku vk<+r ua- 8 ubZ /;ku e.Mh okds Jhxaxkuxj ij gh tSlk jkes'oj ok lwjtiky us dgk gLrk{kj dj fn;s rFkk tSlk dgk fy[k fn;k** The above facts, in the written statement, make it clear that the agreement was executed on 27.6.1998. The agreement is with respect to the agricultural land and was made known to the defendant. The defendant admitted his signatures over the agreement. Not only this, the defendant also admitted writing over the above agreement that he received Rs. 2,80,000/- The defendant, in his statement on oath before the trial court, very categorically Admitted that he himself wrote that he received Rs. 1,80,000/-in cash and handed over possession to the plaintiff. The agreement Ex.2 clearly reveals that the signatures of defendant is available on both the pages of the agreement and also on the back of the stamp. The agreement is verified by Notary Public and signed by the two witnesses.
9. Looking to these facts and, after considering Ex.2 itself-, there appears to be no circumstance available on record so as to make document Ex.2 doubtful. So far as the argument of the learned counsel for the appellant that the document was blank at the time of sign of the defendant is concerned, they are against the plea of the defendant himself. In para 15 of the written statement, the defendant very categorically stated that the stamp of above agreement was not purchased by the defendant nor it was got typed by him but all the work was done by plaintiff's relation Rameshwar and Surajpal at shop No-S of the Firm Gangaram Jaisaram where the defendant signed the document in presence of Khartaram s/o Udaram as is clear from the para quoted above from para 15 of the written statement ¼iksf'knk rksj ij djokdj nqdku ua- 8 vk<+r QeZ xaxkjke ,oe tslkjke ds ;gka [kjrkjke iq= mnkjke dh ekStwnxh esa dsoy gLrk{kj izfroknh ds fo'okl esa ysdj djok;s gSa½ and the facts mentioned in para 15, the only conclusion can be drawn is that the agreement, took place on 27.6.1998 and the document was executed on 27.6.1998. Before signing the document, it was made known to the defendant that it is relating to the agricultural land of the defendant, otherwise there was no reason of the mention of the fact with respect to agricultural land and its price. It appears that the defendant, even at the time of filing of written statement, was not sure about his stand, whether he wanted to deny the execution of the document or want to say that the document was executed by defendant on assurance of the other persons that it will not be used for getting the agricultural land of the defendant at low price. A reading of para 15 of. reply clearly reveals that signature of the defendant was obtained after type of the document. Therefore, the plea of getting sign on blank document cannot be accepted.
10. The circumstances in which the document was got executed shown by the defendant are also very interesting. As mentioned above, the plea of the defendant is that the document was got executed at the shop of the firm where, according to the defendant, he was asked to write that he received Rs. 2,80,000/- in his own hand-writing on some white paper which the defendant resisted. In his statement on oath, the defendant said that he refused to write and .further stated that he did not give anything in writing but, in cross-examination, he admitted that he wrote on Ex.2 agreement that he received Rs. 1,80,000/- in cash and he signed the (document. The above statement clearly shows that the defendant is not a witness of worth reliance. He falsely stated on oath both the two facts that he did not give in writing and thereafter in cross-examination he admitted that he gave in writing over Ex.2 he stated wrong fact that he wrote received Rs. 1,80,000/- which is contrary to the fact ;admitted and proved in Ex.2 where receipt is of Rs. 2080,000/-. The defendant stated that the above talk took place in presence of Patram, Mahaveer, Khartaram or Sahabram.
11. DW-2 Khartaram slated in his evidence that he also resisted that why the signature of the defendant is being taken on blank papers and, in the same way, witness DW-3 Mahaveer of the defendant also resisted why the signature of the defendant is being taken on blank paper. From the evidence of the plaintiff it is clearly proved that the document was already typed when he signed the document, if further examined, then DW-2 Kharlaram and DW-3 Mahaveer say that 'the signature were obtained on blank paper. DW-3 Mahaveer says that both the papers were stamps whereas Ex.2 shows that second page of agreement is not a stamp paper. It is unbelievable that in presence of as many as four persons, Patram, Mahaveer, Khartaram and Sahabram, the signature of the defendant will be obtained to fabricate a false document, that too, even after resistance by the persons present on the spot and of the witnesses after protesting, will not warn the defendant against signing the document.
12. So far as the arguments of the learned counsel for the appellant that the above document was got executed by playing fraud or by undue influence and to secure amount of the other firm is concerned, it is clear that the date of signing of document by the defendant is admitted fact in the written statement itself. Now, whether the above document was got signed in the circumstances in which the defendant was not in a position to refuse to sign or was under pressure or the defendant was misled. To examine this aspect of the matter, again, I may refer the pleading of the defendant in which he was made aware of that document with respect to the sale of the land and the subject matter of oral talk was with respect to the market price of the land. The defendant from 27.6.199E3 never raised any objection with respect to this document. The defendant himself was fully aware that he has written that he received Rs. 2,80,000/- on a document which, in fact, he has not received then, after some time, he could have raised voice against the above writing but he did not choose to do so When defendant received notice (Ex.3) from the Tehsildar, he appeared before the Sub-Registrar (Tehsildar). His presence before the Tehsildar is not in dispute but, in fact, is an admitted fact. Thrice he appeared before the Tehsildar but he did not object to challenge the agreement to sell. He failed to raise any protest against the agreement to sell from 27.6.1998 till the filing of the present suit for a good long period of two years.
13. Therefore, also it is clear that the agreement dated Ex. 2 was executed by the defendant by his tree will and the defendant admitted that he received Rs. 2,80,000/-
14. The evidence of the defendant's witness DW-2 Kharta Ram and DW-3 Mahaveer is also not of sterling worth. Both the witnesses have said that they resisted that why the signatures on blank- paper are being obtained by the defendant. Both the witnesses only stated that they protested against getting the signatures of the defendant on blank-paper but have not stated what happened thereafter; whether the document was typed before signature or not, whether they saw the signatures of defendant on blank-paper, whether the admission of receipt of Rs. 2,80,000/- by the defendant was recorded in their presence. Therefore, they lead no where and proved nothing in favour of the defendant.
15. In addition to above it is admitted case of the defendant himself that he is involved in the business with the Firm Gangaram Jaisaram since last about 25 years then how it can be believed that the defendant will blindly sign an agreement to sell and also write in his own handwriting that he received Rs. 2,80,000/-without getting the money, the contention of the defendant cannot be believed.
16. Since the defendant failed to prove issue No. 1 that the above document was got executed falsely and was a fabricated document then what is the effect over the document Ex.2, is to be seen in the light of challenge thrown by the learned counsel for the appellant.
17. It is an admitted fact that in Ex.2 it is mentioned that the possession of the land was handed over to the plaintiff by the defendant. The plaintiff, in his plaint, admitted that, in fact, the possession was not handed over and for which, in cross-examination, the plaintiff stated that the possession was not handed over to the plaintiff because of the dispute raised by the brothers of the defendant. The defendant also, in his written statement, look a plea that the land is in possession of the brothers of the defendant. Therefore, this fact cannot be considered as a fact making the agreement unbelievable. According to the learned counsel for the appellant, the nature of the land is also wrongly shown in the agreement to sell dated 27.6.1998 for which the learned counsel for the appellant referred portion of the agreement wherein the land in dispute was shown as irrigated from canal and, in evidence, the plaintiff stated that in the papers it is recorded as Barani but, in fact, this land gets water from tube-well. This minor discrepancy in (describing the nature of the land is also of no consequence. So far as the market price of the land, the plaintiff stated on oath that at the time of agreement, the cost of the land was Rs. 60,000/- to Rs. 65,000/- per bigha only and at the time of entering into agreement, the cost of the land was Rs. 60,000/-per bigha only. To prove that the cost of the land was such a low giving unfair advantage to the defendant, the defendant could not produce any documentary evidence to show that at the time of agreement to sell the cost of the land was much more than the agreed in the agreement.
18. It may be relevant to mention here that as per explanation (1) of Section 20 of the Specific Relief Act, this fact cannot come ,in the way to the plaintiff for getting specific performance of the contract because, not only above legal provisions but, the defendant has also not specifically pleaded that if the agreement will be acted upon, it will cause any irreparable injury to the defendant. The inadequacy of the price in the agreement, which is not proved in this case itself cannot be a ground for refusal of decree for specific performance of contract in all cases, it is proved that there may be circumstances in which the executant may prove, as a matter of fact, that the inadequacy of the price is of such extent that it will give undue advantage to the plaintiff against the defendant but here there is no fact available on record in support of the above plea.
19. The learned counsel for the appellant vehemently submitted that to grant a decree for specific performance of the contract is a discretionary relief and the court is not bound to grant relief of specific performance of contract, even it is lawful to grant decree for specific performance of the contract, for which the learned counsel for the appellant relied upon the judgment of this Court delivered in : Govind Narain v. Hans Raj (1). This Court has taken a view that:-
"there is no statutory duty cast upon the Court that it must and should in all cases decree specific performance of contract by ignoring conduct of the party at the time of the alleged agreement which is very relevant factor to be considered besides other circumstances in which the contract was entered into and notwithstanding that the contract would involve hardship to the defendant which he did not foresee or where its non- performance would not involve any such hardship."
It was further observed by this court in the above case that:-
"the court is to be guided by sound judicial principles before exercising judicial discretion to decree specific performance."
and further held:-
"It is not binding on the court to decree specific performance in every case rather-facts and circumstances of each case weighed with the evidence on record have to be appreciated and in fact there is no statutory duty to decree specific Performance in every case."
Thereafter, in the above case it was held:
"The present case is a blatant example of conduct of the plaintiff which itself is heavily shrouded with suspicion and mystery coupled with the circumstances in which the alleged agreement to sell dated 27.2.1982 (Ex.1) was executed."
20. The above case was decided, as stated above, on the facts of the above case only. There is no quarrel with respect to the proposition laid down by this Court. In the above case, this court categorically held that the Plaintiff was a moneylender and he used to Provide finance to the defendant-firm. The plaintiff failed to produced account books in support of his case and it was found that the defendant was forced to sell his house to satisfy the dues of various moneylenders. The plaintiff himself was a broker, he played active role with an intention to grab defendant's house by adopting oppressive methods which stands proven on record. It was further observed by the High Court that the plaintiff failed to prove any independent witness to prove the contention in support of his case. Therefore, the decree for specific performance granted by the trial court was set aside by the High Court, whereas the facts of this case clearly reveals that there is no case by the defendant that the defendant had any business relations with the plaintiff or there was any prior money transaction or the defendant was standing in the category of oppressed person or the defendant was not in a position to foresee the hardship which according to him may arise by execution of the document. Therefore, the above judgment has no application to the facts of the present case.
21. It is true that the court is not bound to grant decree for specific performance merely because it is lawful to do so but, at the same time, simply because as the power to refuse the decree exists, it does not itself gives unbridled and unguided power to refuse the decree oven if the plaintiff succeeded in proving his case and the defendant failed to plead and prove a plea which might the available to the defendant in such type of cases of specific performance of contract.
22. Section 14 of the Specific Relief Act, 1963 provides the circumstances in which the contracts cannot be specifically enforced. Section 20 of the above Act gives discretion to the court in the matter of grant of decree for specific performance. Section 20 itself very clearly makes provision that discretion should not be exercised arbitrary but it must be based upon the sound and reasonable, guided by judicial principles and capable of correction by a court of appeal. Sub-section (2) of Section 20 of the aforesaid Act enumerated the circumstances in which the court may exercise discretion in not passing a decree for specific performance of the contract. It is useful to quote Section 20 of the Specific Relief Act, 1963 which reads as under:
20. Discretion as to decreeing specific performance.--(1) The jurisdiction to decree specific Performance is discretionary, and the court is not bound ,to grant such relief merely because it is lawful to do so; but the discretion of the court is not arbitrary but sound and reasonable guided by Judicial principles and capable of correction by a court of appeal.
(2) The following are cases in which the court may properly exercise discretion not to decree specific performance:
(a) Where the terms of the contract or 'the conduct of the parties at the time of entering into the contract or the other (Circumstances under which the contract was entered into are such that the contract, though, not voidable, gives the plaintiff an unfair advantage over the defendant; or
(b) where the performance of the contract would involve some hardship on the defendant which he did not foresee, whereas its non-performance would involve no such hardship on the plaintiff;
(c) where the defendant entered into the contract under circumstances which, though not rendering the contract voidable, makes it inequitable to enforce specific performance.
Explanation 1.--Mere inadequacy of consideration or the mere fact that the contract is onerous to the defendant or improvident in its nature, shall not be deemed to constitute an unfair advantage within the meaning of Clause (1) or hardship within the meaning of Clause (b).
Explanation 2.--The question whether the performance of a contract would involve hardship on the defendant within the meaning of Clause (b) shall, except in cases where the hardship has resulted from any act of the plaintiff subsequent to the contract, be determined with reference to the circumstances existing at the time of the contract.
(3) The court may properly exercise discretion, to decree specific Performance in any case where the plaintiff has done substantial acts or suffered losses in consequence of a contract capable of specific performance. (4) The court shall not refuse to any Party specific Performance of a contract merely on the ground that the contract is not enforceable at the instance of the other party.
23. As provided in Explanation-1 of Section 20, mere inadequacy of consideration and that the contract is onerous to the defendant or the contract is improvident in its nature, will not constitute an unfair advantage within the meaning of Clause (a) or hardship of Clause (b). Here in this case, as held above, there is no material pleading that the price is inadequate. Mere saying that the price was higher at the time of sale without there being any proof, the effect is of no consequence. Therefore, on facts, it is held that the inadequacy of the price is not proved and it is also held that it cannot be deemed to constitute an unfair advantage to the plaintiff.
24. Sub-section (3) of Section 20 of the above Act further clearly provides that the Court may properly exercise discretion to decree specific performance in any case where the Plaintiff has done substantial acts or suffered losses in consequence of a contract capable of specific performance, for which it is sufficient that the plaintiff had paid the substantial consideration of Rs. 2,80,000/- and only Rs. 80,000/- was due in the plaintiff.
25. In view of the above discussion, the judgment of the Division Bench of the Calcutta High Court reported in Sunil Chandra Ghosh v. Hemendra Kr.Deb (2), relied upon by the learned counsel for the appellant, has no application to the facts of the present case.
26. Another judgment relied upon by the learned counsel for the appellant is delivered in : Ganesh Shet v. Dr. C.S.G.K. Setty and Ors. (3). In this case the Hon'ble Apex Court considered Section 20 of the Specific Relief Act, 1963 and held that:-
"Granting of decree for specific performance is a discretionary matter of the court and it should be gathered by the sound judicial principles."
In that case the Hon'ble Apex Court held that the property was owned jointly by three brothers. The purchaser clearly stated that he is yet to consult his two brothers about the sale consideration and the Hon'ble Apex Court found that from the several letters between the parties it is clear that the sale consideration was not finalised in their meeting, therefore, 'the contract was not concluded contract. The High Court granted opportunity to the plaintiff to amend the plaint and plead that there was a concluded contract at second meeting between the parties. The plaintiff refused to amend the plaint and the Hon'ble Apex Court held that the contract was not a concluded contract, therefore, relief cannot be granted on the basis of a contract which is not concluded. Therefore, this judgment has also no, application to the facts of the case.
27. The learned counsel for the appellant further raised a ground that the plaintiff is one of the co-sharers and the property is undivided and the consent of the co-sharers will be required for the sale and the co-sharers have not agreed for the agreement between the plaintiff and the defendant. This contention of the learned counsel for the appellant is devoid of any force because what has been come on record is that the defendant was having agricultural land along with other persons measuring 18 bighas 17 biswas. The defendant agreed to sell only 6 bighas of land and it is not the case of the defendant that his share will be less than 6 bighas. The learned counsel for the appellant relied upon the judgment of the Madras High Court delivered in : Pushpa Bai v. Dr.Villiams and Ors. (4). In this judgment itself the Madras High Court observed that "if at all, she could convey her undivided interest and not more than that even if it is held that agreement to sell are true." In the facts of the above case, it was held by the Madras High Court that contract to sale of immovable property cannot be enforced against the children who were not parties thereto. Therefore, this judgment does not help the defendant-appellant. Here in this case, the plaintiff is not seeking enforcement of agreement for sale against any of the co-sharers but what he is seeking is enforcement of the share in the agricultural holding which is the share of the defendant measuring 6 bighas out of the total 23 bighas and 17 biswas.
28. The another ground for challenge to the decree advanced by the learned counsel for the appellant is that the agreement has been signed by only the seller and not by the purchaser, therefore, this is not a concluded contract and cannot be enforced, for which the same judgment of Pushpa Bai (supra) of the Madras High Court was relied upon. In the above judgment, the Madras High Court held that since the plaintiff has not signed the agreement for sale then he cannot ask for specific performance of the contract. The Madras High Court held that the plaintiff's failure to affix his thumb impression, the plaintiff cannot establish a contract and he cannot validly enforce such a contract. Respectfully I do not agree with the above proposition. An agreement to sell even if, executed and signed by only seller and the amount is received by the seller in pursuance of the above agreement then this stands concluded contract because of the reason that the seller, by putting his signatures, admits execution of the document, the seller is bound by the agreement and he has no right to say that it was not accepted by the purchaser. The tenor of the agreement shows that the document was written by two parties, prospective seller and prospective purchaser. The agreement is signed by only the seller, then the prospective purchaser can certainly say that the matter was settled between the parties and it was accepted by the prospective seller by putting his signatures.
29. In a suit for specific performance of the contract what is relevant is that whether the prospective seller agreed to sell the property, in terms, given in the agreement and once it is held that the defendant-seller executed document, acted upon document then this is a concluded contract. Absence of signature of purchaser may permit only the purchaser to show one of the circumstances that he never agreed for purchase of the property or he never accepted the conditions mentioned in the agreement when the alleged seller or other person wants to use the agreement against the Purchaser shown in the agreement but in absence of the signature of the prospective purchaser, here in this case, the defendant cannot say that the above agreement was not accepted by the plaintiff, therefore, it is not concluded contract particularly when the defendant accepted the part of tbe consideration or benefit in pursuance of the agreement for sale by him and signed by him. It can further be said that the seller has put his signatures admitting and binding himself to the terms and conditions mentioned in the agreement and the purchaser has accepted the agreement by his conduct by making payment under the agreement, that makes the concluded contract.
30. The defendant can plead specific facts and circumstances and the basis for arriving at the conclusion' that the plaintiff has not accepted the agreement so as to make it unconcluded contract.' When the plaintiff acted upon the contract, made the payment of the amount in pursuance of the agreement and is seeking enforcement of the agreement then it can very well be gathered that the contract was accepted by the plaintiff also. Putting his signature over the agreement to sell document is an additional piece of evidence of acceptance of the terms and conditions of the agreement. The Madras High Court itself, while considering the case of agreement for sale not signed by the plaintiff observed as under:-
"A contract for sale of immovable property is a contract that sale of such property shall take place on terms settled between the parties. It may be that a contract of sale of immovable property need not be in writing. Yet, even in respect of such oral agreement the burden is on the party to prove that there is consensus ad idem between the parties for a concluded oral agreement of sale of immovable property."
When above is the position, then it will be very strange to hold that the concluded contract can be oral but oral acceptance of the one of the parties of an written agreement cannot be alleged and proved. Therefore, even in an agreement signed by one party, its acceptance by other party can be proved by evidence and circumstances.
31. In a suit for specific contract, another important relevant fact is that, the plaintiff ;is required to plead and prove that he is. was and will be ready and willing to perform his part of the contract, then no question arises with respect to the denial of the agreement by the plaintiff and. therefore, the filing of the suit by the plaintiff itself in facts of particular case may be deemed to be a circumstance proving acceptance of tbe agreement for sale, binding the plaintiff by the conditions mentioned in the agreement to sell which will make the contract concluded at the time of filing of the suit, though the defendant may say that the acceptance of the contract by the plaintiff subsequently may be afterthought or tainted with the reasons making the agreement unequitable and will result into operation against the defendant-seller and the discretion may not be exercised in favour of the plaintiff but it cannot be laid down that an agreement to sell, if signed by only seller and not signed by the purchased, cannot be termed as concluded contract or unenforceable contract in court of law.
32. The learned counsel for the appellant, in addition to above, further submitted that the terms of contract has come to an end as the consideration was to pass on, on 26.7.1999 or before that but it has not been passed to the defendant-seller. The above submission of the learned counsel for the appellant is based upon the judgment of the Andhra Pradesh High Court delivered in Voleti Rangaiah v. Adapa Satyanaray-ana and Ors. (5) wherein it was observed that there was an agreement between the parties and if payment is not made an that date, the agreement to sell stands cancelled on next date. The above decision has no application to the facts of the present case. In this agreement it is clearly mentioned that in case the rest of the amount is not paid by 26.7.1999, the plaintiff will have a right to seek specific performance of the contract through the court, otherwise also, in the facts of this case, it cannot be said that the plaintiff was disabled to enforce the agreement for sale, The plaintiff made the payment of Rs. 2,80,000/- to the defendant. On 26.7.1997 itself the plaintiff approached the Tehsildar and submitted the agreement for sale. The defendant himself appeared before the Tehsildar. Neither he objected to the agreement for sale nor he executed the sale deed. Therefore, there is no reason to hold that the agreement has come to an end by any of the reasons.
33. The learned counsel for the appellant submitted that the appellant puts his signature and very fairly admitted that he wrote that he received Rs. 2,B0,000/-and the decree for refund of money will be appropriate in the facts of this case, because the above document was got executed from the defendant for the reason that the Firm Gangaram Jaisaram was having some money dues Because the above document was got executed from the defendants for which it is sufficient to say that the above fact has not been proved by the defendant himself that the Firm Gangaram Jaisaram was having money dues in the defendants by producing any evidence except mere word of mouth by the defendant. Neither any document has been produced by the defendant to prove the above loan or due amount nor the defendant produce any witness in support of the above plea. The evidence of DW-2 Kharta Ram and DW-3 Mahaveer does not prove the above fact that the Firm Gangaram Jaisaram was having any demand from the defendant.
34. In view of the above reasons, the trial court has rightly decreed the suit of the plaintiff by deciding issue No. 1, The trial Court has also rightly decided issue No. 2 that the plaintiff paid Rs.2,80,000/- to the defendant in pursuance of the agreement for sale. The readiness and willingness of the plaintiff is fully proved by the conduct of the plaintiff, his statement and the evidence produced by the plaintiff along with the documentary evidence Ex. 3, 4, 5 and 6. The plaintiff's case is fully supported by his witnesses. The plaintiff's case was also supported by PW-2 Mohanlal, Deed Writer and PW-3 Satish Kumar, Notary Public, in addition to PW-4 Rameshwar Lal and PW-5 Surajpal.
35. No other point was pressed.
36. Therefore, there is no force in this appeal and the same is hereby dismissed.