Rajasthan High Court - Jodhpur
Smt.Chandra Kala vs Smt.Ram Pyari on 19 February, 2018
Author: Dinesh Mehta
Bench: Dinesh Mehta
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR.
..
S.B. CIVIL FIRST APPEAL NO. 18 / 1988 Smt.Chandra Kala W/o Shri Bhanwarlal Mangal R/o Sardarpura, Jodhpur through her Legal Representatives:-
1. Kishan Chandra Mangal (Died) through his Legal Representatives:-
1.(a) Smt. Dr. Tara Mangal W/o Late Shri Krishna Chandra Mangal, by caste Agarwal
1.(b) Anand Raj Mangal S/o Late Shri Kishan Chand Mangal, by caste Agarwal
1.(c) Aditya Mangal S/o Late Shri Kishan Chand Mangal, by caste Agarwal 1(a) to 1(c) all residents of Jodhpur, House No. 115/4, near St. Patrikcs Primary School, P.W.D., Jodhpur.
2. Suraj Prakash S/o Shri Bhanwarlal Mangal R/o First - B Road, Jodhpur.
3. Jugal Kishore S/o Shri Bhanwarlal Mangal R/o First - B Road, Jodhpur.
(2 of 29) [CFA-18/1988]
4. Ramesh Chandra S/o Shri Bhanwarlal Mangal R/o Jodhpur C/o at present Advocate Barmer Station Road, Barmer.
5. Subhash Chand S/o Shri Bhanwarlal Mangal R/o Jodhpur at present residing at Barmer Station Road, Barmer.
6. Smt. Gargi D/o Shri Bhanwarlal Mangal W/o Shri Parasmal Gupta, R/o near N.I.R. Park, Deesa.
7. Smt. Uma D/o Shri Bhanwarlal Mangal W/o Shri Ramesh Chandra, R/o near N.I.R. Park, Deesa.
8. Smt. Vimla D/o Shri Bhanwarlal Mangal W/o Shri Mankaran Bansal (Died) through her L.R.s 8/1. Manmohan Bansal S/o Late Shri Mankaran and Smt. Vimla Devi Banswal R/o Central School Scheme, Airforce, Jodhpur.
8/2. Smt. Malti Singhal D/o Late Shri Mankaran and Smt. Vimla Devi Bansal W/o Krishna Kant Singhal R/o G-24, Akansha Flats, near Sola Railway Crossing, Sola Road, Near Satdhar Circle, Ahmedabad (Gujarat) - 380061
----Appellants/Plaintiffs Versus Smt.Ram Pyari W/o Shri Ram Bilas by caste Brahmin Joshi R/o Joshi Bhawan, Jodhpur (Died) through her LRs:-
(3 of 29) [CFA-18/1988]
1. Shri Ram Bilas husband of Late Ram Pyari by caste Brahmin Joshi R/o House No. 1017, Joshi Bhawan, Near Nehru Park, Jodhpur.
2. Shri Prem Sukh S/o Shri Ram Bilas and Late Ram Pyari by caste Brahmin Joshi R/o House No. 1017, Joshi Bhawan, Near Nehru Park, Jodhpur.
3. Heeralal S/o Shri Ram Bilas and Late Ram Pyari by caste Brahmin Joshi R/o House No. 1017, Joshi Bhawan, Near Nehru Park, Jodhpur.
4. Vinod Joshi S/o Shri Ram Bilas and Late Ram Pyari by caste Brahmin Joshi R/o house No. 1017, Joshi Bhawan, Near Nehru Park, Jodhpur.
5. Smt. Basant Dubey D/o Shri Ram Bilas W/o Shri Madanlal Dubey, R/o Near Modern School, Jhalawad (Rajasthan).
6. Smt. Prakashwati Sharma D/o Shri Ram Bilas Joshi, R/o House No. 1017, Joshi Bhawan, Near Nehru Park, Jodhpur.
7. Smt. Santosh Chaturvedi D/o Shri Ram Bilas W/o Shri Ajay Kumar Chaturvedi, R/o Bhawani Mandi, Usha Colony, District Jhalawad (Rajasthan).
----Respondents/Defendants _____________________________________________________ For Appellant(s) : Mr. R.R. Nagori, Sr. Advocate with Mr. Alkesh Agarwal.
Mr. Akshay Nagori.
For Respondent(s) : Mr. B.K. Thanvi.
_____________________________________________________ (4 of 29) [CFA-18/1988] JUSTICE DINESH MEHTA Judgment Reportable 19/02/2018 The present appeal has been filed by the appellant laying challenge to a judgment and decree dated 28.08.1988 whereby, the suit instituted by her has been dismissed by the Additional District Judge No.1, Jodhpur (hereinafter referred to as the 'Trial Court').
The facts apropos for the present appeal are that the plaintiff
- Chandrakala, now being represented by her Legal Representatives, had filed a suit for specific performance of an agreement to sell dated 01.08.1975, inter alia, averring that the defendant had agreed to sell the suit house to her for a sum of Rs.25,000/- for which, an agreement dated 01.08.1975 came to be executed upon payment of an advance sum of Rs.10,000/-. According to the terms of the said agreement, the plaintiff was required to make payment of the remaining amount by 01.08.1977 and on such payment being made, it was incumbent upon the defendant to execute a sale-deed in her favour. According to the assertion made in the plaint, the plaintiff had made further payment of Rs.10,000/- on 03.08.1975, in acknowledgment whereof, the defendant had issued a receipt of even date. It has also been stated in the plaint that the plaintiff had made payment of remaining amount of Rs.5,000/- on 26.07.1976 and on receipt of the entire sale consideration, the defendant had assured the plaintiff that the registered sale-deed would be executed in some time. Plaintiff's case has been that, (5 of 29) [CFA-18/1988] while receiving the amount of Rs.5,000/- on 26.07.1976, the defendant had promised to pay a sum of Rs.500/- per month, as rent to the plaintiff till the sale-deed is executed and possession is handed over and issued a receipt to this effect.
Producing the original agreement to sell dated 01.08.1975 (Exhibit-1), receipt dated 03.08.1975 for a sum of Rs.10,000/- (Exhibit-2) and the second receipt dated 26.07.1976 (Exhibit-3), the plaintiff contended that as the entire sale consideration had been paid, a decree for specific performance be issued in her favour, as the defendant has refused to execute the requisite sale- deed. It was also averred in the plaint that the defendant, who used to live in the subject premises, situated at 1 st 'C' Road, Sardarpura, has started living in Talanpur, Tehsil Merta (District Nagaur) and has even refused to accept the notice sent for calling upon the defendant to execute a sale-deed.
In response to the suit so filed by the plaintiff, the defendant filed a written statement, while denying the very execution of the agreement to sell dated 01.08.1975; both the receipts and the signatures thereupon. The defendant's stance in the written statement was that she has not entered into any agreement, whatsoever, nor has she received any amount, as alleged by the plaintiff. The defendant has also stated that the contentious property is situated near Nehru Park and its market value was more than Rs. 2.50 lacs, at the time of filing the written statement, while contending that there was no occasion for the defendant to sell such precious property for a paltry sum of Rs.25,000/-.
(6 of 29) [CFA-18/1988] On the basis of pleadings of the parties, the Trial Court framed the following issues:-
^^okn fcanq 20-3-79 1& vk;k izfroknh us rk- 1@8@75 dks :- 25000 ) esa fooknxzLr edku dk cspku bdjkj oknhuh ds i{k esa dj :- 10000 ) jksdM+ izkIr dj fy, o :- 15000 ) vnk gksus ij rkjh[k 1@8@77 rd izfroknh dks cspku (jftLVzh) djokuk Fkk ?
(ih-) 2& vk;k oknh us izfroknh dks bl cspk.k dh jde isVs rkjh[k 3@8@75 dks 10000) :- vnk fdls o rkjh[k 26@7@76 dks cdk;k :- 5000) vnk fd;s ?
3& vk;k oknh cspk.k jftLVzh dk fofufnZ'V vuqrks'k djkus dk vf/kdkjh gS ? Vfkok og vly jde :- 25000) :- o 1) % ekgokjh nj ls rkjh[k nkos rd 8400) :- C;kt ikus dk vf/kdkjh gS ?
4& vk;k jlhnsa ,oa bdjkjuke i;kZIr LVkEi ij u gksus ls "kgknr esa ysus ;ksX; ugha gS ?
5& nknjlh ?"
On behalf of the plaintiff, she herself appeared in the witness-box as PW-1 and exhibited various documents, including the agreement to sell dated 01.08.1975 (Ex.1) and both the receipts (Ex.2 & 3) and she deposed that the defendant Ram Pyari had executed the said agreement to sell in her favour which had been written in the hands of the defendant's husband Ram Bilas Joshi, on which, the defendant had inscribed her signatures, after (7 of 29) [CFA-18/1988] receiving a sum of Rs.10,000/-. The plaintiff also deposed that she had made further payment of Rs.10,000/- and Rs.5,000/- for which, receipts (Ex.2 & 3) duly signed by the defendant were issued. The plaintiff had also stated that she had sent a notice to the defendant at her new place of residence, namely, village- Talanpur, Tehsil Merta (District Nagaur) for ensuring execution of the sale-deed, which notice had returned undelivered.
On behalf of the defendant, she herself appeared in the witness-box and deposed that she did not even know the plaintiff, while denying the factum of agreeing to sell her house for a sum of Rs.25,000/-.
In her statement-in-chief, the defendant stated that she had bought the said property for a sum of Rs.37,000/- by way of registered sale-deed in the year 1966, while producing a certified copy of the sale-deed as Exhibit-A/1. The defendant asserted that in the year 1975, its market value was Rs.3.00 lacs, while contending that she had signed the documents in question at the askance of her husband.
During the course of examination-in-chief, though she admitted her signatures on the contentious agreement to sell (Ex.1), being 'C' to 'D', but nevertheless contended that when she had inscribed her signatures, it was only a blank paper. Defendant also admitted her signatures on receipt (Ex.2), with the identical pretext of having signed on a blank paper. Defendant however disputed her signatures on Ex.3, being receipt of Rs.5,000/-.During the cross-examination by the plaintiff's counsel, the defendant had also admitted that her husband - Ram Bilas, (8 of 29) [CFA-18/1988] who was engaged in the business of pipe fittings, had left Jodhpur some 12 years ago, in wake of huge debts and started working as a Clerk (Munim) in Malda. The defendant showed her ignorance about the hand writing on Exhibit-1 and Exhibit-2, while averring that she was an illiterate lady, when she was confronted as to whether such handwriting was of her husband. Curiously enough the defendant admitted to be acquainted with her husband's signatures while showing her ignorance about the handwriting.
The learned Trial Court, vide its judgment and decree dated 28.08.1987 dismissed the suit filed by the plaintiff, while holding the issues No.1 and 2 against the plaintiff and concluding that the plaintiff has failed to prove the existence and execution of the agreement dated 01.08.1975 and the payment of Rs.25,000/-. As issues No. 1 and 2 in relation to the execution of the agreement and payment in furtherance thereof, have been decided against the plaintiff, the Trial Court decided issue No.3 also against the plaintiff, as a result whereof, the suit filed by the plaintiff came to be rejected.
Mr. Alkesh Agarwal, learned counsel for the appellant, impugning the Judgment under consideration contended that the learned Court below has seriously erred in dismissing the suit filed by the plaintiff. He argued that the Court below has decided issues No. 1 and 2 against the plaintiff, while observing that the agreement to sell dated 01.08.1975 (Ex.1) has not been proved to have been executed as per 'free will' of the defendant; which conclusion has been drawn by the Court below, essentially because the agreement did not bear signatures of witnesses. In (9 of 29) [CFA-18/1988] this regard, learned counsel for the appellant contended that it has never been a case of the defendant that the agreement in question had been got executed under coercion, pressure or fraud. He submitted that as a matter of fact, while submitting her written statement, the defendant had disputed the very execution of the agreement itself and even denied her signatures thereupon; whereas during the course of her evidence, she had candidly admitted to have signed the agreement to sell dated 01.08.1975 (Ex.1) and receipt dated 03.08.1975 (Ex.2).
Mr. Agarwal argued that the plaintiff has stood by her pleadings and has deposed in tune with her stand in the plaint; whereas, the defendant has shifted rather entirely changed her stand. He pointed out that in the written statement, the defendant had flatly refused to have entered into any agreement or signed the agreement to sell and receipts, but during the course of her evidence, she had accepted her signatures on the agreement to sell and the receipt (Ex.2).
In backdrop of such flickering stand of the defendant, learned counsel for the appellant argued that the Trial Court has seriously erred in not accepting the version of the plaintiff and concluding that in absence of any other witnesses, the plaintiff's case cannot be held proved. He argued that the plaintiff's statement on oath as against the defendant's statement on oath, were apparently contrary to each other, but for this reason alone; the plaintiff's version cannot be disbelieved.
The argument of the learned counsel for the appellant, if put differently; has been that as the defendant has totally deviated (10 of 29) [CFA-18/1988] from her written statement, her deposition deserves to be discarded; while the plaintiff's assertion ought to have been accepted, as the plaintiff's statements were in sync with her pleadings, more particularly as the defendant had admitted her signatures on the agreement to sell Ex.1 and the receipt Ex.2.
Pointing out from the plaintiff's statement and the plaint that the agreement and both the receipts have been written in the hand writing of Ram Bilas, the defendant's husband, which assertion deliberately had not been responded to by the defendant; he argued that having accepted to have signed Ex.1 and Ex.2 and that too, at the request of her husband, the defendant's ignorance about the hand-writing of her husband cannot be believed. Advancing his arguments further, Mr. Agarwal contended that the best witness was the defendant's husband, the author of the contentious documents, who ought to have been brought to the witness-box. A person, having best witnesses or evidence in his possession, is required to produce the same and in case of withholding of such evidence, an adverse inference is required to be drawn against such person, contended Mr. Agarwal.
Mr. Agarwal argued that a reading of the agreement dated 01.08.1975 shows that the defendant had handed over the original title document of the contentious house to the plaintiff. During the course of her statement, the defendant had produced certified copy of the sale deed dated 14.06.1966 as Ex. A/1, which is a pointer of the fact that the defendant did not have the original sale-deed of the suit property, which fortifies the stand of the (11 of 29) [CFA-18/1988] plaintiff, that the original sale-deed of the said premises had been handed over to her. On availability of the original document of title itself is indication of existence of the transaction between the parties, he emphasized.
In the last, Mr. Agarwal argued that if a person executing a document, admits or accepts his signatures upon it, then the existence or execution of such document should not be doubted by the Court. Explaining and expanding his argument, he added that in wake of the admission of her signatures upon the agreement to sell and receipts (Ex.1 and 2), the execution of the document has been literally admitted and the same stood proved. In light of these arguments, learned counsel contended that the Trial Court has seriously erred in deciding issues No. 1 and 2 against the plaintiff.
In support of his argument, learned counsel for the appellant cited the following judgments:- (i) AIR 1988 Bombay 22, Head Note-B (Dagadu Bapu Shinde Vs. Shankar Nimbalkar), in support of his contention, that if the entire payment has been made, the plaintiff is not required to plead his readiness and willingness;
(ii) 2015 (3) WLN 281, Para-8 (Ram Ratan Vs. Kalla & Anr.), in support of his stand, that when the agreement itself has been denied by the defendant in the written statement, the plaintiff is not required to prove his readiness and willingness;
(iii) (2013) 2 CCC 071 (SC), Head Note-6, (Laxmibai (Dead) Through LRs & Anr. Vs. Bhagwantbhva (Dead) Through LRs & Ors.), in support of his argument that, it is the (12 of 29) [CFA-18/1988] quality and not the quantity of the witnesses, which is relevant for the purpose of deciding a case;
(iv) 2009(4) CCC P. 598 (SC) (Grasim Industries Ltd. & Anr. Vs. Agarwal Steel), to lend support to his contention that, a person signing a document is presumed to have signed the same after reading and understanding the document properly, unless there is a proof of forgery or fraud;
(v) AIR 2000 SC 2408 (Motilal Jain vs. Smt. Ramdasi devi & Ors.), in support of his argument that, readiness and willingness need not be specific phraseology or language in the plaint;
(vi) AIR 1997 AP 53 (Habeeb Khan & Ors. Vs. Valasula Devi & Ors.) & AIR 1968 SC 1413 (Gopal Krishnaji Ketkar Vs. Mohamed Haji Latif & Ors.), to buttress his submission that, the person, who is having best evidence should produce it/him, failing which, an adverse inference is to be drawn against such person.
Reverting to the appellant's arguments, Mr. Basant Kumar Thanvi, learned counsel for the respondents, submitted that as per the contents of the agreement in question, the possession of the house had been handed over to the plaintiff; whereas, the possession of the suit premises is still with the defendants, which fact alone is sufficient to falsify the version of the plaintiff.
Learned counsel for the respondents contended that it is impossible to believe that the defendant would sell her house only for a sum of Rs.25,000/-, when she had purchased it for a sum of Rs.37,000/- in the year 1966. Learned counsel for the (13 of 29) [CFA-18/1988] respondents further argued that the plaintiff has not brought or produced the relevant witnesses, including the person in whose presence/ knowledge, the agreement in question had been allegedly signed. Learned counsel for the Respondents argued that the plaintiff has miserably failed to prove the existence and execution of the subject agreement to sell dated 01.08.1975 (Ex.1). Learned counsel for the respondents further contended that the agreement in question is silent about the expenses of registration and even in her plaint, the plaintiff has prayed that the defendant be asked to execute the sale-deed, after bearing the cost of registration and stamp duty, which fact raise a doubt about the existence of any agreement.
Responding to the prayer for amendment, which has been sought by the appellant, by way of moving an application under Order VI Rule 17 of the Code of Civil Procedure in the present appeal, seeking to incorporate the pleadings of readiness and willingness, Mr. Thanvi submitted that the pleadings of readiness and willingness is sine qua non in a suit for specific performance; and pointed out that though the plaintiff had filed an application under Order VI Rule 17 of the Code of Civil Procedure on 03.06.1983, during the course of suit proceedings, yet no amendment for showing his readiness and willingness was sought at that time and even the said application for amendment dated 03.06.1983 had been withdrawn by the plaintiff on 26.09.1983. In backdrop of these facts, Mr. Thanvi contended that the plaintiff has waived his right to move application for amendment and as (14 of 29) [CFA-18/1988] such, the amendment application cannot be entertained by this Court, in appellate proceedings.
Responding to the argument of Mr. Agarwal regarding the consequence of not producing Ram Bilas Joshi, the husband of the defendant in the witness box, Mr. Basant Kumar Thanvi, contended that the plaintiff has to base his case upon his own feet and evidence and she cannot take advantage of the lapse of the defendant.
In the alternative, he submitted that the amount of consideration, as shown in the sale-deed, is insufficient and after lapse of about 42 years, decree for specific performance of the agreement should not be granted, as the property in question at present market value is worth crores.
Espousing the cause of the plaintiff, joining the arguments in rejoinder, Mr. Agarwal while maintaining that the application under Order VI Rule 17 of the Code of Civil Procedure filed in the present appeal deserves to be allowed, he argued that the amendment application withdrawn during the suit proceedings did not seek to incorporate "Readiness & Willingness" and as such, the application filed by the appellant in the present appeal is maintainable.
Adverting to the sufficiency of consideration of Rs.25,000/- agreed in the agreement to sell dated 01.08.1975 (Ex.1), he argued that, according to the defendant's own version, her husband carrying on business of sanitary fitting had left Jodhpur and went to Malda, while shifting the family to Merta, as he had incurred huge debts. Such circumstances and urgent need of money might have propelled him in a situation, requiring him to (15 of 29) [CFA-18/1988] sell the property for a slightly lower value cannot be ruled out; and that it cannot be said as a matter of rule that the valuation of the property purchased in 1966 would always escalate and the defence of the defendant that she would not sell it for lesser consideration, cannot be accepted as a gospel truth.
Learned counsel for the appellant insisted that the appeal deserved acceptance and the plaintiff is entitled for a decree of specific performance, as compensation in monetary terms or the re-payment of the consideration, even with the interest, cannot meet the ends of justice, inasmuch as but for the present transaction, the plaintiff would have purchased another house for the money, she had paid and the same would have provided not only a place to reside but also appreciation in the valuation.
Having heard learned counsels for the parties and upon perusal of the material available on record, this Court is of the view that the Trial Court has fallen into manifest error of law in concluding that the plaintiff has failed to prove the execution of the agreement, while deciding issues No. 1 and 2.
A perusal of the impugned judgment shows that the Court below, has decided issues No. 1 and 2 against the plaintiff essentially on two counts; firstly because the agreement in question has not been proved to have been executed with 'free will' and without fear; and secondly because the agreement in question does not bear the signatures of the witnesses.
Both the grounds taken by the Trial Court are untenable. Firstly, it was not the case of the defendant, that the agreement in question was got signed under threat or by some coercion; and (16 of 29) [CFA-18/1988] secondly, because no law requires signatures of the witnesses on an agreement to sell.
A perusal of the written statement filed by the defendant shows that she had flatly refused to have signed any agreement or given any receipt of the amount, as claimed by the plaintiff. However, during her cross-examination, she had accepted her signatures on the agreement (Ex.1) and receipt (Ex.2), while meekly stating that she had signed these documents on the askance/request of her husband. An agreement to sell is a contract simplicitor and presence of attesting witnesses is not mandatory. As such, reasoning given by the Trial Court that the agreement has not been signed in presence of any witnesses is unsustainable. Equally laconic is the logic of the Trial Court that the agreement has not been proved to have been signed with free will. In light of the pleadings of the parties, it was not necessary for the plaintiff to prove that the agreement in question was executed with free will. In the facts of the present case, mere proving of the execution of agreement was enough, as it was nobody's case that the signatures were obtained under duress or coercion.
True is is, that the plaintiff alone had come in the witness box as against her, the defendant also had come alone in the witness box to dislodge the assertion of the plaintiff. Comparing the statements on oath of the plaintiff against that of the defendant, the learned Court below has found the testimony of the defendant having more substance than that of the plaintiff, to conclude that the execution of the agreement to sell (Ex.1) has (17 of 29) [CFA-18/1988] not been proved. In considered opinion of this Court, it is not the quantity of the witnesses but the quality of the witnesses, which is required to be reckoned by the Court. If the statement of both the witnesses, namely, plaintiff and defendant, are read in juxtaposition, it transpires that the plaintiff had adhered to the case she had brought and has deposed whatsoever, she had stated in her plaint, while also deposing that the hand writing on the crucial documents, namely, Ex.1, Ex.2 and Ex.3 is that of the defendant's husband Ram Bilas Joshi; whereas, the defendant has totally deviated from her stand and having specifically denied the execution of any agreement to sell and issuance of receipt in her statement, she had admitted to have signed on Ex.1 and Ex. 2, when she was required to depose on oath, in the witness box. Even during her cross-examination, the defendant had admitted that she had signed these documents on the request of her husband Ram Bilas Joshi. A comparison of the statement given by the plaintiff and defendant clearly brings to fore, the falsehood and dishonest stand of the defendant.
In considered opinion of this Court, as the defendant had admitted to have signed the agreement to sell dated 01.08.1975 (Ex.1) and receipt dated 03.08.1975 (Ex.2), the only conclusion which can be reached is that the defendant had admitted to have sold her house for a sum of Rs.25,000/-, for which, she had executed the said agreement dated 01.08.1975 by accepting a sum of Rs.10,000/- and in furtherance whereof, she had given a receipt for a sum of Rs.10,000/- on 03.08.1975. As such, the (18 of 29) [CFA-18/1988] execution of the agreement to sell has been established beyond any pale of doubt.
Even a cursory look at the document (Ex.1) shows that the agreement in question has been drawn on a stamp of Rs.4/-, on which, the defendant has accepted her signatures, albeit with a caveat that she had signed on a blank paper. Any prudent person would hardly sign on a blank stamp paper, even at the request of her husband. Similarly, the defendant has admitted to have signed the receipt (Ex.2), while maintaining that she had signed on a blank paper. A look at the document (Ex.2) shows that the defendant had inscribed her signatures across the revenue stamp and and the same do not appear to have been inscribed on a blank paper.
Curiously enough, the defendant had denied all the documents, including Ex.1, Ex.2 and Ex.3 during the course of her 'admission and denial' of the documents, however, during the course of her cross-examination, she has admitted her signatures on these documents.
While rejecting the suit, the learned Trial Court has compared the signatures of the defendant on Ex.3, the second receipt of Rs.5,000/- from the signatures inscribed on Ex. 1 and Ex.2 and found the same to be in variance. Learned Court below has observed that the signatures inscribed on Ex. 3, claimed by the plaintiff to be of defendant Ram Pyari are different than one inscribed on Ex.1 and Ex.2, by observing that on Ex.3, word ^g^ has been written ahead of the word Ram Pyari; whereas, such (19 of 29) [CFA-18/1988] letter g^ is not on the signatures inscribed on Ex.1 and Ex.2, while concluding that there is a difference in signatures over these documents.
Upon analysis of the findings of the Court below, this Court firstly feels that the Trial Court has erred in comparing the signatures on Ex.1 and Ex.2 vis-a-vis Ex.3. The Court ought to have compared the signatures made on the written statement and the Vakalatnama, which are her admitted signatures. If the signatures inscribed on the written statement and Vakalatnama are compared with the signatures inscribed on Ex. 1 and Ex.2, the agreement to sell and the receipt of Rs.10,000/-, there appears to be no change and they are strikingly similar.
There is a slight difference in the signatures on the second receipt dated 26.07.1976, drawn for a sum of Rs.5,000/-, these signatures of Ram Pyari are some what different, but the second receipt for a sum of Rs.5,000/- becomes redundant, particularly in the present suit for specific performance, when the signatures on the agreement to sell itself has been admitted. The Trial Court has given undue credence to the signatures inscribed on the second receipt for a sum of Rs.5,000/- to conclude that there is a variance in the signatures while arriving at a finding that the plaintiff has failed to prove issues No. 1 and 2 in her favour.
A careful reading of the issues shows that issue No.1 relate to the execution of agreement to sell dated 01.08.1975, while issue No.2 was in relation to the payment of Rs.10,000/-, vide receipt dated 03.08.1975 and 26.07.1976. Even if the best case of the defendant is taken and the findings in relation to the (20 of 29) [CFA-18/1988] signatures as arrived by the Court below are taken into account, the plaintiff has failed to prove only the payment of Rs.5,000/- on 26.07.1976, as signatures on the Receipt Exjhibit 2 do not match for which, the Trial Court could at the best have partly decided issue No.2 against the plaintiff, by holding that the plaintiff has failed to prove final payment of Rs.5,000/-.
However, this Court finds that even the second receipt of Rs.5,000/- has also been issued by the defendant/her husband, as the handwriting on all the three documents is similar. The slight difference in the signatures of the defendant on second receipt is liable to be ignored. Had it been the case of the defendant that the plaintiff had not paid or offered to pay the final amount of Rs.5,000/-, then things would have been different. But in the present case, when the defendant had totally denied the transaction, which later on has turned out to be false, this Court feels that the doubt if any regarding the such insignificant change in the signatures on the receipt should be resolved in favour of the plaintiff; particularly when the basic agreement and subsequent receipt of Rs.10,000/- have been held to be proved.
An appraisal of the facts and evidence on record reveals that the plaintiff had come with a case that the defendant had agreed to sell the contentious house to her, for a sum of Rs.25,000/- and the defendant completely denying such transaction and execution of the agreement to sell had later accepted her signatures on the crucial documents. In the facts obtaining in the present case, this Court is of the considered opinion that the testimony of the defendant whatever worth it is, deserves to be discarded.
(21 of 29) [CFA-18/1988] The defendant had accepted her signatures on the agreement to sell as well as on the receipt, namely, Ex.1 & Ex.2 and has also stated that she had signed on blank papers at the instance of her husband. As against this testimony, the plaintiff's case has been that the documents, Ex.1 & Ex.2, were written in the hand-writing of defendant's husband, namely, Ram Bilas Joshi. In this view of the matter, it was incumbent upon the defendant to have produced her husband in the witness box, at least to prove that she had signed on blank papers. Had her husband come in the witness box, the plaintiff could have at least confronted him with the hand-writing on the contentious agreement to sell and the receipts, which would have dispersed the remaining clouds of suspicion. The defendant has not produced rather withheld the most crucial and relevant evidence, for which, an adverse inference is required to be drawn against her, particularly when the defendant had admitted that she had signed the documents at the request of her husband.
Be that as it may, when the defendant has admitted to have signed on these documents, may be, at the instance of her husband, she cannot just get away with it and claim immunity from the liability or obligation, arising out of such documents, particularly when it is nobody's case that such blank papers signed by her had been misused by the plaintiff.
A reading of the document, agreement to sell dated 01.08.1975, Ex.1, reveals that minute particulars in relation to the purchased property, its predecessor-in-title, and even stamp duty of Rs. 1794/- paid for such transaction has been mentioned. If (22 of 29) [CFA-18/1988] the version of the defendant is to be accepted, one wonders how the plaintiff could know the intricate details regarding purchase of the property on 21.05.1966 and the exact amount of the stamp duty paid thereupon, until and unless, the defendant had divulged such information to the plaintiff. Narration of these details in the agreement to sell is another indicator of the fact that the defendant had agreed for the transaction of sale, for which, the agreement came to be executed, signatures whereupon have been admitted by the defendant.
This Court is constrained to make observation about the deceitful attitude and shifting stand of the defendant. In response to the plaint, while filing the written statement in the year 1982, she had almost denied every word of the plaint and even refuses to have signed any agreement or receipt etc.; at the time of admission-denial of the documents, she had denied signatures on all the documents, including Exhibit 1 & 2. However to everyone's surprise, she accepts her signatures on Exhibit 1 & 2 in the witness box, but taken a subterfuge of having signed on blank papers. She claimed to be aware of her husband's signatures, but conveniently showed ignorance about his hand-writing. She claimed herself to be an illiterate lady, but dauntlessly deposed about the market value of the suit premises. Even her stand about the market value of the house is shifting. The house in question which had been purchased in the year 1966 for a sum of Rs.37,000/- agreed to have been sold for a sum of Rs.25,000/- in the agreement dated 01.08.1975. But the defendant, while filing the written statement in the year 1982 claims that its present (23 of 29) [CFA-18/1988] market value is 2.50 lacs, but during her statement shows that its valuation in the year 1975 was 3.00 lacs, however, that at the time of recording of the statement (25.05.1987), she states that its market value was 7-8 lacs. The testimony of the defendant, therefore, is not turstworthy; to say the least.
In light of the judgment cited by Mr. Agarwal, this Court holds that the defendant having admitted to have signed the documents, is presumed to have signed the same after reading and understanding; as there is no allegation, much less proof of forgery or fraud by the plaintiff.
A feeble attempt had been made by Mr. Thanvi to dispute the existence of the transaction by saying that the property in question had been admittedly purchased for a sum of Rs.37,000/- in the year 1966, then why would the defendant sell the same for a sum of Rs.25,000/- in the year 1975. Such argument of Mr. Thanvi though appears to be attractive, but cannot be countenanced, looking to the other surrounding circumstances, as the defendant had herself admitted in her statement that her husband, who had been carrying on sanitary business, had left Jodhpur and joined some private job in Malda and that he had incurred huge debts. Besides this, it cannot be taken as a thumb rule, that the prices of the property would always go upward.
Mr. Thanvi relied upon the judgment of Hon'ble the Supreme Court in the case of Sayed Muhammed Mashur Kunhi Koya Thangal Vs. Badagara Jumayath Palli Dharas Committee & Ors., reported in 2004 (9) SRJ 259, in support of his argument, that the plaintiff could only succeed on the strength of its case and (24 of 29) [CFA-18/1988] not on the weakness found in the case of the defendant. The judgment cited by Mr. Thanvi is not of much assistance to him, as the defendant had herself admitted to have signed the agreement to sell and the receipts, for which, the plaintiff's case has been held proved. The conclusion of this Court is based on overall appreciation of the available evidence and material; not solely upon the fact that defendant's husband had not come to witness box.
Mr. Thanvi has relied upon judgment of this Court in the case of LRS of Bhinva Ram Vs. Sohan Ram, reported in 2005 (4) RWL 2433, in support of his argument, that the decree of specific performance cannot be granted in the present case, as the plaintiff has failed to prove his readiness and willingness.
The judgment aforesaid cited by Mr. Thanvi is clearly distinguishable on the facts, inasmuch as, in the present case, the plaintiff had made the entire consideration agreed between the parties, for which, the pleadings of readiness and willingness becomes otiose. The plaintiff having paid entire sale consideration can only ask for execution of sale deed. The pleadings of expression of readiness and willingness is not quintessential to a suit for specific performance. Argument of readiness is to be examined on the touch-stone of the terms of the agreement and the pleadings in conjunction with other material. When the entire payment has been made and nothing remains to be done by the plaintiff, the plaintiff is not expected to plead readiness and willingness. In such case, the plaintiff's assertion that she had required the defendant to execute the sale-deed, in the pleadings (25 of 29) [CFA-18/1988] is sufficient to get a decree of specific performance.
Mr. Thanvi has cited judgment of Hon'ble the Supreme Court in the case of Bal Krishna & Anr. Vs. Bhagwan Das (Dead) & Ors., reported in 2008 (3) Civil Court Cases 153 (S.C.), particularly para-8, to contend that the relief of specific performance cannot be granted, if it would give unfair advantage to the plaintiff.
Having gone through the judgment, if the facts of the present case are looked into, it transpires that the plaintiff had paid the entire consideration in the year 1976 itself and inspite of such payment, the defendant has been enjoying the possession of the house for more than 41 years. As such, it cannot be said that the decree of specific performance would cause hardship to the defendant. This Court finds substance in the stand of the appellant-plaintiff that had the defendant not agreed to sell the house to her, she would have opted for other alternative property to reside, which would have definitely given her shelter, appreciation and satisfactory return of her investment.
It may be true that during the period interregnum, the valuation of the property has swollen manifold. But at the same time, it is noteworthy that the defendant had been enjoying the possession of the property, despite having received the entire sale consideration and if the mesne profits for use, occupation and enjoyment of such property is calculated, it will substantially set off the appreciation in the value of the house.
Mr. Thanvi also cited the judgment of Hon'ble the Supreme Court in the case of Manohar Lal @ Manohar Singh Vs. Maya, (26 of 29) [CFA-18/1988] reported in 2003(6) SRJ 62. On perusal of the judgment aforesaid, this Court fails to discern, as to why the said judgment has been cited.
The last judgment cited by Mr. Thanvi was 1996 (1) CCC 27/2008(3) SRJ 530. A perusal of the said judgments reveals that the same are on the principle, that remedy for specific performance is an equitable remedy and is in the discretion of the Court to grant such relief or not.
The proposition, that the relief of specific performance is an equitable remedy, cannot be disputed. However, in the facts of the present case, when the defendant has begun with the case denying the factum of agreement to sell in toto and whereafter, accepting her signatures on the agreement and the receipts, this Court is of the considered opinion that non-issuance of decree of specific performance in the present case would be like rewarding the defendant for her blatant lies or would mean the defendant, a premium for her dishonesty. In this view of the matter, based on the principles of justice, equity and good conscience, this Court is of the opinion that the plaintiff is entitled to a decree of specific performance and the suit filed by her deserves to be decreed.
Before parting with the judgment, it would be appropriate to be reminded of various efforts of settlement made by this Court during the proceedings of this case, particularly the proceedings of 02.12.2015, when this Court had recorded prima facie opinion that the relief by way of transfer of the property does not seem to be expedient and possible and directed the parties to come to a reasonable amount of compensation.
(27 of 29) [CFA-18/1988] It will not be out of place to reproduce the entire order dated 02.12.2015, which reads thus:-
"In view of previous order dated 18.12.2012 passed by this Court, it seems expedient and justifiable to pass decree for refund of advance of the plaintiffs/appellants in the present suit for specific performance with reasonable amount of interest. The admitted advance received by the defendant/ respondent is Rs.20,000/- in the year 1975-76, though the plaintiff/appellant claimed that a sum of Rs.25,000/- was advanced for the transfer of property in question situated near "Nehru Park", Sardarpura,Jodhpur.
In view of long lapse of time by the time now, the relief by way of transfer of property does not seem to be expedient and possible, therefore, to ascertain the reasonable amount of compensation/refund of advance with reasonable interest, appears to be proper course of action for which the learned counsel for the respondent/defendant urged that in the year 2012 upon mutual settlement efforts made by the learned counsel for the parties, the defendant had agreed to pay a sum of Rs.4,50,000/- to the plaintiff/appellant. Towards the reasonable compensation including interest, with the further lapse of three years, the said amount has also gone up slightly.
Learned counsel for the parties, therefore, were requested the compute the reasonable amount of refund of the advance of Rs.20,000/- given in the year 1975 with simply uniform interest @ 9% p.a. A Chart of the same may prepared by both the learned counsels for the parties and the learned counsel for the parties also undertake that the parties will remain present before the Court on the next date so that (28 of 29) [CFA-18/1988] upon such mutual agreement formulate, the decree for refund of the advance may be passed by the Court.
Put up on 07.12.2015, as prayed."
Even during the course of hearing by this Court, after substantially hearing the arguments, this Court explored the possibility of out of Court settlement, as grant of decree of specific performance may not be expedient and if passed, may be harsh to the defendant. The appellant has tried to negotiate and were ready to accept reasonable amount of compensation in lieu of the decree of specific performance, as informed by Mr. Alkesh Agarwal, learned counsel for the appellant, but the defendant (her Legal Representatives) have showed their reluctance in paying even the reasonable amount of compensation.
The stand of the respondents-defendants is indicative of either of the two situations, either they want to wriggle out of the contract of sale or they are not having sufficient funds to compensate the plaintiff for the loss of opportunity and interest for the money, the plaintiff had admittedly paid for purchase of the subject property.
In either of the contingencies, if this Court refrains from passing the decree of specific performance, it would be inequitable to the plaintiff and would set wrong precedent, particularly when the defendant's stand has been found to be sham misleading and untruthful.
The appeal, therefore, succeeds. The suit filed by the original plaintiff (Smt. Chandrakala) is decreed. The defendants (Legal (29 of 29) [CFA-18/1988] Representatives of defendant - Smt. Ram Pyari) are directed to execute the sale-deed in plaintiff's favour (Her Legal Representatives), within a period of three months from the date of this order. The cost of registration and stamp duty etc. shall be borne by the plaintiff (Her Legal Representatives).
On failure of the defendant(s) to execute the requisite sale- deed, the Trial Court shall execute the same in favour of the plaintiff (Her Legal Representatives), in accordance with law.
Parties are left to bear their own costs.
(DINESH MEHTA), J.
/Mohan/H-1