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2014 DIGILAW 1689 (PNJ)

Sher Singh v. Ishar Singh

2014-12-05

HEMENT GUPTA

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JUDGMENT HEMENT GUPTA, J. 1. The defendant is in second appeal aggrieved against the judgment and decree passed by the Courts below in a suit for specific performance of the agreement to sell dated 21.05.1993, whereby suit stands decreed. 2. The plaintiff-respondent filed a suit for specific performance of the agreement to sell dated 21.05.1993 in respect of house after receiving the remaining sale consideration of Rs. 97,050/-. The assertion of the plaintiff is that the defendant agreed to sell the house in question for Rs. 1,27,050/- and received Rs. 30,000/- as earnest money. As per agreement to sell, the sale-deed was to be executed on or before 31.8.1993 after receiving the remaining sale consideration. The plaintiff remained present in the office of the Sub-Registrar on 1.9.1993 (31.8.1993 being declared holiday) alongwith remaining consideration, but the defendant did not appear for the purpose of execution of the sale-deed. It is, thereafter, the suit for specific performance was filed on 22.9.1993. 3. The defendant contested the suit and alleged that the agreement to sell is forged and fabricated one and that the defendant never entered into an agreement to sell the house in question. It was asserted that if any thumb impressions of the defendant exist on the agreement, the same might have been obtained in his intoxicant condition. 4. On the basis of the pleadings of the parties, the following issues framed: 1. Whether defendant executed the agreement of sell dated 21.05.1991 in favour of the plaintiff ? OPP 2. If issue No.1 is proved, whether said agreement is forged document without consideration? OPD 3. Whether the plaintiff remained ready and willing to perform his part of contract? OPP 4. Whether the plaintiff is entitled to decree for specific performance of contract? OPP 5. Whether the plaintiff is entitled to recover Rs. 60,000/- from the defendant by way of alternative relief ? OPP 6. Relief. 5. In order to prove the agreement to sell and also the fact that the plaintiff was ready and willing to perform his part of the contract, the plaintiff-examined PW-1 Mal Singh, who deposed that the defendant entered into an agreement to sell the house in question to the plaintiff and that a sum of Rs. 30,000/- was paid as earnest money by Smt. Jangir Kaur to Sher Singh. 30,000/- was paid as earnest money by Smt. Jangir Kaur to Sher Singh. He also deposed that the agreement was typed by the Deed Writer and it was read over and explained to both the parties and that such agreement to sell was attested by him and Kartar Singh, Lambardar. PW-2 Kartar Singh, Lambardar appeared as an attesting witness. PW-3 Devinder Kumar, Stamp Vendor, deposed that he sold stamp paper to Sher Singh and also proved the endorsements made by him as Exs.P-3 and P-4. PW-4 Suresh Kumar, Deed Writer also deposed with regard to the execution of agreement to sell between the parties and that an amount of Rs. 30,000/- was paid as earnest money. Apart from the above, the plaintiff also examined his mother Smt. Jangir Kaur as PW-5, who deposed that her son is totally illiterate and is a simpleton person. She further deposed that she manages the family affairs and that the payment of the earnest money with respect to the agreement to sell was made by her. She also proved the power of attorney as Ex.P6. 6. On the other hand, the defendant himself appeared as his own witness as DW-1 and denied the execution of the agreement to sell. 7. The trial Court found that the execution of the agreement to sell as well as the payment of earnest money stand proved. The trial Court granted a decree for specific performance of the agreement to sell by recording a finding that the plaintiff has proved that he was ready and willing to perform his part of the contract. Such findings were affirmed in appeal by the first Appellate Court vide judgment and decree dated 22.04.1997. 8. In the present second appeal, the argument raised is that the agreement is a benami transaction on behalf of the mother of the plaintiff, therefore, such transaction is not valid. It is also asserted that appellant is a small farmer and he cannot be expected to enter into an agreement to sell his only house. It is also argued that the plaintiff himself has not appeared as a witness, therefore, the testimony of the attorney cannot be read into evidence. 9. After going through the evidence on record, I find that the plea of transaction as prohibited under the Benami Transactions (Prohibition) Act, 1988 is not applicable. It is also argued that the plaintiff himself has not appeared as a witness, therefore, the testimony of the attorney cannot be read into evidence. 9. After going through the evidence on record, I find that the plea of transaction as prohibited under the Benami Transactions (Prohibition) Act, 1988 is not applicable. The said Act debars a person from claiming title over the property said to be held as benami. The person, who holds the title is presumed to be real owner. Therefore, the fact that the mother of the plaintiff asserted that she has provided money or that her son is illiterate and simpleton person, will not make the transaction of the agreement to sell between the plaintiff and the defendant as a benami transaction. It is interse between mother and son, where the issue of benami can arise but not in respect of third person such as the appellant. 10. The argument that the defendant is not expected to enter into agreement to sell of his sole residential house is not tenable. Though the defendant denied the execution of the agreement in the written statement, but the plaintiff has led the evidence of the attesting witnesses, i.e. PW-1 Mal Singh and PW-2 Kartar Singh, Lambardar as well as PW-3 Devinder Kumar, Stamp Vendor and PW-4 Suresh Kumar, Deed Writer with regard to the execution of agreement to sell between the parties apart from his mother Smt. Jangir Kaur. All the witnesses have deposed with regard to the execution of the agreement to sell and that of receipt of earnest money. The plaintiff has appeared before the Sub-Registrar on the next date available of the date fixed for the execution of the sale-deed. 11. The argument that the plaintiff has not appeared as a witness, therefore, the testimony of the attorney cannot be read into evidence is also not tenable. The legal position with regard to when a power of attorney holder can appear as a witness on behalf of the plaintiff has been considered by the Hon'ble Supreme Court in a judgment reported as Man Kaur vs. Hartar Singh Sangha, 2010 (10) SCC 512 : 2010 AIR SCW 6198, wherein it has been held that an attorney, who is conversant of the facts can appear as a witness. The Court held to the following effect: "(a) An attorney-holder who has signed the plaint and instituted the suit, but has no personal knowledge of the transaction can only give formal evidence about the validity of the power of attorney and the filing of the suit. (b) If the attorney-holder has done any act or handled any transactions, in pursuance of the power of attorney granted by the principal, he may be examined as a witness to prove those acts or transactions. If the attorney-holder alone has personal knowledge of such acts and transactions and not the principal, the attorney-holder shall be examined, if those acts and transactions have to be proved. (c) The attorney-holder cannot depose or give evidence in place of his principal for the acts done by the principal or transactions or dealings of the principal, of which principal alone has personal knowledge. (d) Where the principal at no point of time had personally handled or dealt with or participated in the transaction and has no personal knowledge of the transaction, and where the entire transaction has been handled by an attorney-holder, necessarily the attorney-holder alone can give evidence in regard to the transaction. This frequently happens in case of principals carrying on business through authorised managers/attorney-holders or persons residing abroad managing their affairs through their attorney-holders. (e) Where the entire transaction has been conducted through a particular attorney-holder, the principal has to examine that attorney-holder to prove the transaction, and not a different or subsequent attorney-holder. (f) Where different attorney-holders had dealt with the matter at different stages of the transaction, if evidence has to be led as to what transpired at those different stages, all the attorney-holders will have to be examined. (g) Where the law requires or contemplated the plaintiff or other party to a proceeding, to establish or prove something with reference to his state of mind or conduct, normally the person concerned alone has to give evidence and not an attorney-holder. A landlord who seeks eviction of his tenant, on the ground of his bona fide need and a purchaser seeking specific performance who has to show his readiness and willingness fall under this category. There is, however, a recognised exception to this requirement. A landlord who seeks eviction of his tenant, on the ground of his bona fide need and a purchaser seeking specific performance who has to show his readiness and willingness fall under this category. There is, however, a recognised exception to this requirement. Where all the affairs of a party are completely managed, transacted and looked after by an attorney (who may happen to be a close family member), it may be possible to accept the evidence of such attorney even with reference to bona fides or readiness and willingness. Examples of such attorney-holders are a husband/wife exclusively managing the affairs of his/her spouse, a son/daughter exclusively managing the affairs of an old and infirm parent, a father/mother exclusively managing the affairs of a son/daughter living abroad." 12. The statement of the mother of the plaintiff as PW-5 shows that she is the one, who is aware about the entire transaction including the execution of the agreement and payment of earnest money. Therefore, in terms of clause (d) of the test, enumerated above, where the attorney can appear, the testimony of the attorney is admissible in evidence. 13. The present suit for specific performance has been filed within one month of the last date of the execution of sale-deed. Both the Courts have appreciated the evidence on record to return a categorical finding of fact that the agreement to sell was executed and that too on payment of earnest money. It was also found that the plaintiff was ready and willing to perform his part of the contract. 14. In view of the above, I do not find any illegality or irregularity in the findings recorded by the Courts below, which may warrant any interference by this Court nor does any substantial question of law arises for consideration. 15. Dismissed. Appeal dismissed.