How to ascertain readiness and willing of plaintiff to perform his part of contract in suit for specific performance of contract?

 The plaintiffs also served two notices and remained present before the Sub-Registrar on the dates mentioned in the notices for getting the sale deed executed. However, the appellant did not reach to execute the sale deed. It is contended that on the acknowledgment of the notice, there is signature of Hakim Singh though he is illiterate man. The plaintiff could not have given any reason regarding the signatures and stated that he produced the acknowledgment in the same condition, ft is not disputed that the notices were sent at the correct addresses. Therefore, the service of the notices should be presumed. The appellant despite of the same did not appear before the Sub-Registrar. All these facts show that the plaintiffs were ready and willing to perform their part of the contract.

IN THE HIGH COURT OF ALLAHABAD

Second Appeal Nos. 279 and 102 of 1998

Decided On: 16.03.2001

Appellants: Hakim Singh
Vs.
Respondent: Ram Sanehi and others

Hon'ble Judges/Coram:
B.K. Rathi, J.

Citation: AIR2001All231, 2001 (43) ALR 534, 2001 2 AWC1118All

1. Both of these appeals arise out of common Judgment and decree, dated 20.11.1997 passed by IVth Additional Sessions Judge. Agra. These appeals Involve the same questions of facts and law and, therefore, they are being disposed of by this common judgment.

2. The respondents of Appeal No. 279 of 1998 (hereinafter referred as plaintiffs) filed a suit for specific performance of contract for sale, which was Suit No. 210 of 1978. Their case is that on 20.8.1977. the appellant of Appeal No. 279 of 1998 Hakim Singh (hereinafter called as appellant), executed an agreement to sell the agricultural land of Khasra Plot No. 129, area 10 Bighas, 4 Biswas and three Biswansis situated in village Alampur Jarkhi, district Firozabad for Rs. 1,16,000. Rs. 5,000 were paid advance before the execution of the agreement deed and Rs. 10,000 were paid to the appellants at the time of the registration. The agreement was that the sale deed shall be got executed by 30.6.1978 after obtaining necessary permission. It is further alleged that possession of the land was also transferred to the plaintiffs. That the plaintiffs had always been ready and willing to perform their part of the contract, but the appellant did not executed the sale deed. That the plaintiffs also served notices, dated 29.4.1978 and 19.6.1978 by registered post to execute the sale deed on 8.5.1978 and 28.6.1978 respectively. The plaintiffs went to Sub-Registrar's office to get the sale deed executed but the appellant did not appear to execute the sale-deed, hence the suit was filed. The suit was contested by the appellant and he also filed Suit No. 210 of 1978 for cancellation of the above agreement deed. The case taken in the W. S. of the suit of the plaintiffs and the Suit No, 210 of 1978 is that the appellant had to pay a loan of the Bank and of Het Singh and was in need of money. That he approached plaintiffs for advancing the money and they agreed to pay Rs. 10,000 as loan on interest @ 15% per annum on the condition that the land shall be mortgaged. That the appellant agreed for the same. That, however, by fraud and in collusion with the witnesses, the agreement for sale was got executed in place of mortgage deed. That the son of the appellant also colluded with the plaintiffs. That the agreement has been obtained by fraud and cannot be enforced. Therefore, in Suit No. 210 of 1978 filed by Hakim Singh, it was requested that the alleged agreement be cancelled.

3. The trial court consolidated both the suits and decreed the suit of the present appellants No. 210 of 1978 and cancelled the agreement, dated 20.8.1977. He also dismissed the suit for the plaintiffs for specific performance of contract for sale. Aggrieved by the judgment, the plaintiffs filed two Appeal Nos. 164 of 1995 and 9 of 1991 against the judgment in both the suits. The first appellate court has reversed both the judgments and decreed the suit for specific performance of contract for sale on payment of balance amount of the said consideration and has dismissed the suit with costs for cancellation of the agreement for sale. Therefore, the appellant has come in appeals before this Court.

4. I have heard the arguments of Sri H. S. N. Tripathi, learned counsel for the appellant and Sri R. S. Mishra, learned counsel for the respondents and have carefully gone through the record and the case law submitted before me,

5. It is contended by learned counsel for the appellant that the only source of the livelihood of the appellant is agriculture and therefore, in no case he could have executed the agreement of sale of his entire land. That he only took a loan of Rs. 10,000. That a room, tubewell, trees and a well exists on the land, but there is no mention in the agreement to sell regarding their existence and, therefore, it appear that it was only a mortgage deed. That the fraud was practised on the appellant as he is an old and illiterate person. That document itself show that it was obtained by fraud. That provisions of Section 53A T. P. Act does not apply in the present case. It has also been pleaded that the plaintiffs have failed to prove that they had been ready and willing to perform their part of contract.

6. I have considered the arguments of the learned counsel and perused the judgments. On perusal of the judgment of the first appellate court. I find that all these arguments were dealt with In detail and learned counsel has failed to point out that any part of evidence or argument was not considered by the first appellate court. All the arguments are relating to the questions of fact which stand concluded by the detailed judgment of the first appellate court and no question of law, what to say of substantial question of law, arises for decision in this appeal, nor any substantial question of law was framed in admitting the appeal though it were framed in the memo of appeal.

7. However, I examine the findings recorded by the Court below and the arguments of the learned counsel of the appellants.

8. The plaintiffs examined Sri B. N. Singh as witnesses, who proved the execution of the deed. He has also stated that Rs. 10,000 was paid before the Sub-Registrar. There is also admission that Rs. 5,000 was paid before the execution of deed. There is endorsement of the Sub-Registrar regarding the admission of the appellant having received Rs. 5.000 in advance. It is contended that admittedly the receipt of Rs. 5,000 which were paid earlier, was Issued but has not been produced on the pretext that after the registration of the agreement deed, it was torn. This is not material. There was no need of that receipt as there is endorsement of Sub-Registrar. There was admission that Rs. 5.000 were received. This admission was made before the Sub-Registrar, who made the endorsement. Therefore, the fact that receipt of Rs. 5,000 was torn and not produced, is not material. It is also contended that the witnesses of the execution and that of registration are different. This is also not material. The law does not require that the same witnesses before whom the deed has been executed should appear before the Sub-Registrar. The witnesses have, however, proved the execution of the deed.

9. The argument regarding application of Section 53A, T. P. Act is misconceived. There is no application of Section 53A. T. P. Act in the present case.

10. It is true that it has not been mentioned in the agreement to sale that the well, room, tubewell and the trees are standing in the land and they are also being transferred. However, they are affixed with the land and it was not necessary to mention regarding them. No adverse Inference can be drawn from this fact. It may also be mentioned that the appellant in his statement has admitted that two mango trees fell down during strong winds and he has got cut the SHEESHAM tree. That the room has been constructed during the pendency of the case. That the tubewell is fixed on a trolley, which is moveable and can be removed at any time. Therefore, there is no question of mentioning these facts in the agreement to sale.

11. It is also contended that the sale consideration was very low. However, there is no reliable evidence on the record to show as to what was the market value of the land at the time of the agreement. Therefore, this argument of the learned counsel can also be not accepted.

12. Now coming to the last argument that the appellant is an agriculturist. His only source of Income is agriculture. Therefore, there is no question of his agreement to sell the entire land. However, this question does not require long discussion. The appellant alone can know as to why he executed agreement to sell off the entire land. The agreement cannot be disbelieved for the reason that the agreement is regarding the entire land. However, it may be added that the appellant admitted that he had taken sufficient loans from time to time from the Bank and from other person and was to repay the amount. Therefore, the appellant might have considered that the land is not profitable to him and, therefore, made up his mind to dispose it of and start some new business by which he can earn more profits. Therefore, the execution of agreement cannot be disbelieved on the ground that the appellant has agreed to sell his entire land.

13. There are certain important circumstances which squarely show that the agreement was executed by the appellant. The most important circumstance is that Betal, the son of the appellant is also an attesting witnesses of the deed. It is important to mention that the appellant has not denied the attestation of the deed by his son Betal. On the other hand, he has pleaded in the plaint as well as In W. S. that Betat has also colluded with the plaintiffs. However, it has come in evidence that Betal is living with the appellant. There is no cogent explanation as to why he colluded with the plaintiffs and got the agreement executed in their favour. The fact that Betal, son of the appellant, was an attesting witness, is sufficient to show that the deed was not obtained by fraud. It may also be mentioned that name of Betal was mentioned in the list of witnesses filed by the appellant. However, he was not produced and discharged. There is no explanation as to why he was not produced. These circumstances show that the agreement was executed and no fraud was practised.

14. The other important fact is that the appellant has admitted that another attesting witness Murari Lal is close to him and was called by him. Therefore, at the time of the execution of deed, the son of the appellant as well as his will-wisher Murari Lal were present. Therefore, it could not be accepted that the agreement was obtained by fraud.

15. The other circumstance is that the appellant has stated in his statement that the plaintiffs are not carrying on money lending business. There are other persons in the village who are carrying on money-lending business. !n past, the appellant took loan from the Bank. Therefore, there is no reason for the appellant to approach the plaintiffs for lending money. It, therefore, shows that transaction was not a money lending but was an agreement to sell, as alleged by the plaintiffs.

16. The plaintiffs also served two notices and remained present before the Sub-Registrar on the dates mentioned in the notices for getting the sale deed executed. However, the appellant did not reach to execute the sale deed. It is contended that on the acknowledgment of the notice, there is signature of Hakim Singh though he is illiterate man. The plaintiff could not have given any reason regarding the signatures and stated that he produced the acknowledgment in the same condition, ft is not disputed that the notices were sent at the correct addresses. Therefore, the service of the notices should be presumed. The appellant despite of the same did not appear before the Sub-Registrar. All these facts show that the plaintiffs were ready and willing to perform their part of the contract.

17. It is contended that the entire court fee was not paid at the time of the filing of the suit and several adjournments were sought to pay the court fee. That this shows that plaintiffs were not possessing sufficient funds and were not in a position to perform their part of contract. However, no such presumption can be drawn as has been held by the Apex Court in Surya Narain Upadhyaya u. Ram Roop Pandey and others. MANU/SC/0028/1994 : AIR 1994 SC 105.

18. Considering the entire arguments and the evidence of the case, I am of the view that there Is no reason to interfere in the judgment and decree passed by the IVth Additional Sessions Judge, Agra, in appeal.

19. I, therefore, dismiss both the appeal with costs.

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