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2018 DIGILAW 1853 (ALL)

Har Pal Singh v. Santosh Kumari

2018-08-24

SIDDHARTH

body2018
JUDGMENT : 1. Heard Shri Udai Karan Saxena, learned counsel for the appellant and Shri B.B. Paul, assisted by Shri Promod Kumar Srivastava, learned counsel for the respondent. 2. This is plaintiff's second appeal filed against the judgment and decree dated 2.9.1994 passed by the Ist Additional District Judge, Ghaziabad allowing the Civil Appeal No. 216 of 1982, setting aside the judgment and decree of Civil Judge, Ghaziabad passed in Original Suit No. 180 of 1981. 3. The plaintiff instituted the suit for specific performance of contract of sale dated 9.12.1980 allegedly executed by the defendant in favour of the plaintiff. 4. The brief facts of the case are that after negotiations in between 1.12.1980 to 7.12.1980, it was agreed between the parties to enter into an agreement dated 9.12.1980 for sale of the land of the defendant for an amount of Rs. 40,000/- ; that Rs. 15,000/- was paid as advance sale consideration and it was agreed that sale deed shall be executed on 10.2.1981 by the defendant after receiving balance sale consideration; that the plaintiff was always ready and willing to perform his part of the contract but defendant avoided the execution of deed; that plaintiff sent registered notice dated 28.1.1981 calling upon the defendant at the Registrar Office on the appointed date but he did not appear hence suit was instituted. 5. The defendant filed his written statement denying the material allegations of plaint; that she admitted receipt of notice and asserted that she replied to the same; that she has denied the execution of agreement to sell and receipt of Rs. 15,000/- as advance sale consideration from the plaintiff; that the defendant denied any deliberation with plaintiff regarding sale of the disputed land and regarding execution of alleged agreement to sell, which is forged document obtained by fraud and without consideration ; that she denied the fact that she had bad relations with Godha, cousin of her husband and joint land holder with her husband ; that she wanted to save her share of land from Godha and desired to execute the Will in favour of one Smt. Santosh, daughter of her deceased brother-in-law (Dewar), Khanjan and since she trusted Shyam Singh, she accompanied him for the purpose of executing sale deed but he committed fraud and got agreement to sale executed instead. 6. 6. Plaintiff filed replication to the written statement of the defendant and denied any conflict of defendant with co-sharer of her husband's land Godha; that the allegation regarding execution of fraudulent agreement to sell at the time when the defendant went to execute Will in favour of Smt. Santosh was denied; that it was further stated that agreement to sell was executed in presence of Mansingh whom defendant trusted and who was father in-law of Smt. Santosh. 7. On the basis of the pleadings of the parties, the trial court framed as many as seven issues which run as under :- 1. Whether the defendant agreed to sell her land in suit to plaintiff for a sum of Rs. 40,000/- in the first week of December, 1980? 2. Whether the plaintiff paid Rs.15,000/- to the defendant as premium as part payment? 3. Whether the defendant executed an a agreement for sale of disputed land in favour of plaintiff on 9.12.1980 ? 4. Whether the defendant has committed default in performance of the agreement? 4-B.Whether the plaintiff has been ready and willing to perform his part of agreement? 5.Whether the agreement in question is void, ineffective and inoperative for the reasons given in para 21 to 31 of the written statement? 6.Whether the defendant is entitled to compensatory costs? 7.Relief,to which the plaintiff is entitled? 8. The parties were given opportunity of leading evidence in support of their respective case. The plaintiff Shyam Singh got himself examined as P.W.1, Samar Singh, the scribe as P.W.2; Mohan Lal Lekhpal as P.W. 3, witness of execution, Furzullah as P.W.4 the witness. Defendant-appellant examined herself as D.W. 1 and examined Man Singh as D.W. 2. Man Singh is the father-in-law of Smt. Santosh in whose favour she intended to execute the Will. 9. The plaintiff has submitted in evidence the disputed agreement, the notice, and the bank pass book, the defendant-appellant submitted the reply of the notice in documentary evidence. 10. On the basis of the evidence on record, the trial court came to the conclusion that the defendant has executed the disputed agreement and has not executed the sale deed within time and, therefore, the plaintiff's suit was decreed. The trial court again held that the plaintiff has been ready and willing for performing his part of agreement. 11. Aggrieved by the judgment of the trial court defendant preferred Civil Appeal no. The trial court again held that the plaintiff has been ready and willing for performing his part of agreement. 11. Aggrieved by the judgment of the trial court defendant preferred Civil Appeal no. 216 of 1982 before the lower appellate court which considered and decided the appeal on four arguments/point of determination. 1. There is no proof of execution of the agreement dated 9.12.1980. 2. Consideration of Rs. 15,000/- is not proved to have passed to the appellant. 3.Purchase of stamp of the agreement dated 8.12.1980 shatters the plaintiff's case. 4. Notice reply of the defendant-appellant also shatters the plaintiff's case. Bare statements of the parties are not decisive but circumstance, because persons may tell lie but the circumstances do not. 12. The lower appellate court recorded the finding regarding first point that defendant is illiterate lady of the village. She does not knows how to read and write. She can only understand contents of the document when document is read over and explained to her. From the evidence of the witnesses of the plaintiff it is not proved that the contents of the documents were read and explained to the defendant. The lower appellate court has considered the statement of the witnesses and has stated that defendant was not explained the term of the agreement. Mere admission of thumb impression or signature does not amounts to valid execution of documents. 13. Regarding second point of payment of Rs. 15,000/- as advance sale consideration the lower appellate court has recorded the finding that trial court has not decided whether sum of Rs. 15,000/- was ready cash available with the plaintiff in between 1.12.1980 to 7.12.1980. The plaintiff, as P.W.1, has stated that he sold his 'Gur' and 'Moonz' to a particular “Artiya” for sum of Rs. 15,000/- but the aforesaid “Artiya” was not produced for evidence, therefore, the capacity of the plaintiff to pay Rs. 15,000/- to the defendant at the time of execution of agreement is not proved. 14. The lower appellate court has further recorded the finding that up to date of execution of agreement, there was no withdrawal of Rs. 15,000/- in the passbook of the plaintiff. He withdrew only sum of Rs. 500/- when he had Rs. 17,000/- in the account prior to the execution of the deed and there is no explanation of withdrawal of Rs. 500/- only. 15,000/- in the passbook of the plaintiff. He withdrew only sum of Rs. 500/- when he had Rs. 17,000/- in the account prior to the execution of the deed and there is no explanation of withdrawal of Rs. 500/- only. The subsequent entries in the passbook show that he deposited Rs. 27,000/- in the month of February and withdrew it and again deposited it. The lower appellate court had discarded the explanation on behalf of the plaintiff that he withdrew Rs. 27,000/- for the purpose of execution of sale deed in the month of February but when it was not executed by the defendant he deposited the amount back. 15. Lower appellate court has decided the point no. 3 and holding that the stamp paper for execution of agreement to sale was purchased on 8.12.1980 whereas deed was executed on 9.12.1980 but the plaintiff stated that stamp paper was purchased on 9.12.1980. This is the circumstances which indicates that the plaintiff has betrayed the trust of the defendant reposed in him. 16. Regarding the fourth point, the lower appellate court has recorded the finding that in reply to the notice of the plaintiff, defendant had denied the receipt of any sale consideration and stated that agreement is the result of fraud. She also stated that she wanted to execute sale deed in favour of Smt. Santosh but plaintiff defrauded her and got agreement to sale executed. The period of compliance of agreement was two months only which is very short. 17. On the basis of above findings, the appellate court has allowed the Civil Appeal of the defendant and has dismissed the suit of the plaintiff. 18. This second appeal has been preferred by the plaintiff against the judgment and decree of lower appellate court and it was admitted on 19.9.1994 on the following substantial questions of law :- 1. Whether the court below was legally correct in examining the evidence and recording a finding that at the time of execution of the agreement between the parties the plaintiff was in sound financial status to acquire the property? 2. Whether the court below was legally correct in recording a finding that since the plaintiff had not withdrawn the money from the Bank for entering into the agreement, the due execution of the agreement itself was doubtful? 3. 2. Whether the court below was legally correct in recording a finding that since the plaintiff had not withdrawn the money from the Bank for entering into the agreement, the due execution of the agreement itself was doubtful? 3. Whether the fact that the plaintiff has his Bank account, which was necessary to be operated at the time of entering into any contract for sale of the property? 4.Whether the approach of the court below in assessing the evidence to find out whether the appellant was ready and willing to perform his part of the agreement under section 16 (c) of the Specific Reliefs Act was illegally correct or not? 19. Learned counsel for the plaintiff-appellant has submitted that the lower appellate court discarded the agreement to sell after recording the finding that the terms and conditions of the agreement to sell were not specifically explained to the executor, the defendant-contesting respondent. It is submitted that for the purpose of proving the due execution of document the marginal witness and scribe of the document were produced. The scribe specifically stated that the defendant-contesting respondents told him that she has come to execute an agreement to sell and then draft of the agreement to sell was prepared and it was loudly read before the defendant and after her approval the agreement to sell was written on the stamp paper. Hence the finding recorded is based on conjectures. It is further submitted that the defendant-contesting respondent admitted her thumb impression over the documents and said document is registered, hence there is a presumption of the genuineness of the document unless rebutted by a cogent piece of evidence under section 60 of the Registration Act. The lower appellate court further failed to appreciate that the defendant-respondents pleaded that she wanted to execute a Will, meaning thereby a fraud was committed against her. However, she has totally failed to prove the fraud, if any, committed by the plaintiff-appellant. Further there is no pleadings that the terms and conditions were not dictated to the appellate hence the document is bad in the eyes of law. 20. The finding recorded by the lower appellate court to the effect that the plaintiff-appellant failed to prove the fact that he had paid Rs. 15,000/- as earnest money to the defendant-respondents is incorrect and perverse. 20. The finding recorded by the lower appellate court to the effect that the plaintiff-appellant failed to prove the fact that he had paid Rs. 15,000/- as earnest money to the defendant-respondents is incorrect and perverse. The finding has been recorded due to the reason the plaintiff-appellant has not produced 'Adhetiya' to whom he sold the 'Gur' and 'Moonj' and his nephew, from whom he had taken Rs. 2,000/-. The said finding is wholly perverse and based on conjectures as the lower appellate court itself recorded finding that the plaintiff-appellant is rich man of the village. 21. The finding recorded by the lower appellate court is not only perverse but wholly baseless due to the fact that it has declared that the agreement to sell is not genuine only because the stamps were purchased on 8.12.1980 and the agreement to sell was executed on 9.12.1980.Inference drawn by the lower appellate court is wholly unwarranted and perverse. 22. It has been further submitted that agreement to sell is a registered document and has strong presumption of genuineness under Section 60 of the Registration Act and also fully proved for the purpose of its admissibility in evidence in view of Section 101 of the Evidence Act. With regard to the fact that the executor wanted to execute a Will and plaintiff-respondents obtained agreement to sell, taking the advantage of the fact that she is illiterate lady is also not convincing. The trial court specifically recorded finding to the effect that the defendant understood the things well and was in good state of mind. The said finding was not reversed by the lower appellate court and further the defendant-respondent herself produced the father-in-law of Smt. Sontosh, Man Singh, in evidence, who was present at the time of execution of the aforesaid document. 23. The lower appellate court reversed the judgment and decree passed by the trial court but it is apparently clear that the finding recorded by the trial court have not been reversed by giving any good reason hence the impugned order is liable to be set aside. 24. Learned counsel for the defendant-appellant has submitted that on the thread bare discussion of evidence on record, lower appellate court found that plaintiff, Shyam Singh, has miserably failed to prove disputed agreement to sell and also alleged payment of Rs. 15,000/- to defendant much less to file receipt in respect thereof. 24. Learned counsel for the defendant-appellant has submitted that on the thread bare discussion of evidence on record, lower appellate court found that plaintiff, Shyam Singh, has miserably failed to prove disputed agreement to sell and also alleged payment of Rs. 15,000/- to defendant much less to file receipt in respect thereof. The presumption of registration of documents under section 60 of Registration Act has been successfully rebutted by the defendant. With this finding lower appellate court has allowed civil appeal of defendant and dismissed the suit of plaintiff-respondent. 25. AIR 1959 (S.C.) 1959, Diety Pattabhiramaswamy vs. Hanymayya and others, has been relied upon wherein it has been held by the Hon,ble Supreme Court that second appeal against the finding of fact recorded by the lower appellate court is not maintainable before High Court. “The provisions of section 100 are and unambiguous. There is no jurisdiction to entertain a second appeal on the ground of erroneous finding of fact, however gross the error may deem to be.Nor does the fact that the finding of first appellate court is based upon some documentary evidence make it any the less a finding of fact. A judge of the High court has, therefore, no jurisdiction to interfere in second appeal with the findings of fact given by the first appellate court based upon an appreciation of the relevant evidence. The practice of some judge of the High Court disposing of second appeals as if they were first appeals depreciated.” 26. In 2011 (10) R.D. page 372, Maya Devi Vs. Raj Kumari Batra, it has been held by the Supreme Court that in all cases were judgment of reversal is recorded, the appellate court must record reasons in support of its judgment so that Supreme Court may conveniently examine validity and correctness thereof. 27. In the present case after discussion on the evidence on record, first appellate court has held that presumption under Section 60 of Registration Act referable to registered documents is rebuttable and defendant had specifically rebutted the same by specifically stating that she did not executed the disputed agreement of sell and that she did not get any advance/earnest money of Rs. 15,000/- from plaintiff, Shyam Singh, as alleged by him. 28. 15,000/- from plaintiff, Shyam Singh, as alleged by him. 28. Two cases, referable to rebuttal of registered agreement of sale and presumption of Section 60 of Registration Act, have been cited by the learned counsel for the defendant 2000, Allahabad Civil Journal (1222), Khalil ahmad vs. Smt. Naurozi, 2003 (94) Revenue Decisions page 282, Karan Singh Vs. D.D.C. and others. 29. In the backdrop of facts referred to above, it is writ large that plaintiff, Shyam Singh, miserably failed to prove disputed agreement of sale dated 9.12.1980 and payment of alleged advance/earnest money of Rs. 15,000/- to the defendant. 30. The aforesaid second appeal is concluded by finding of facts recorded by the first appellate court, that plaintiff Shyam Singh miserably failed to prove/alleged agreement of sale dated 9.12.1980 and payment of alleged advance/earnest money of Rs. 15,000/- to defendant. No substantial question of law is involved in this appeal. In the circumstances aforesaid, second appeal is devoid of merit and is liable to be dismissed with cost. 31. After hearing the rival submissions it is found that trial court had considered the evidence led by the plaintiff and has recorded the finding that plaintiff, Shyam Singh, appeared as P.W.1 in the suit and proved the disputed agreement to sale. He further stated that this agreement was read over and explained by the scribe to the defendant in the presence of witnesses and Man Singh. The scribe first prepared the draft after reading over the same to the defendant and after her approval he typed the same and even typed deed was read over and explained to the defendant, the lower appellate has quoted this part of the statement of the P.W.1 in its order but it has recorded contradictory findings that it was no read to the defendant. P.W.1 has further proved that Sub-Registrar inquired about the contents of the agreement to sell from the defendant and she admitted the execution of agreement to sell and receipt of Rs. 15,000/- before him. Samar Singh, P.W.2, scriber of the agreement to sell, has stated that plaintiff, Mansingh and Mohan Lal, Lekhpal, had come to him along with defendant. The plaintiff told about the object of her visit and at her instance draft agreement was prepared. After reading and explaining it to her it was approved. 15,000/- before him. Samar Singh, P.W.2, scriber of the agreement to sell, has stated that plaintiff, Mansingh and Mohan Lal, Lekhpal, had come to him along with defendant. The plaintiff told about the object of her visit and at her instance draft agreement was prepared. After reading and explaining it to her it was approved. The trial court further recorded the finding that Mohan Lal Lekhpal, P.W.3 and Furjulla, P.W.4 have corroborated the statement of P.W. 1 and 2. The appellate court has discarded the evidence of all the witnesses of the plaintiff on the ground that terms of the agreement were not explained to the defendant by any of the witnesses. 32. The trial court found that defendant is an illiterate widow but she is not ignorant and helpless. She was found from her statement to be dealing with the cooperative society of her village. She admitted her thumb impression before the Registrar of the society and was found to be doing her agricultural activities through Furjullah, P.W. no.4. 33. The revenue court had issued Bhumidhari Sanad to the defendant. The trial court found her to be a clever women. From her demeanor before the trial court, she appeared to be capable of giving clever replies to all the questions of her counsel and counsel for the plaintiff. She was not found to be a person unaware of the dealing in dispute and court recorded the finding that she is the woman of average understanding. The findings recorded by the trial court in this regard have neither been considered nor reversed by the lower appellate court. The trial court further found that defence of fraud in execution of disputed agreement to sale by the defendant has not been established. It was found that there is no evidence of any love and affection with Smt. Santosh, in whose favour she wanted to execute the Will. The plea of executing the Will only to save her land from co-tenure holder, Godha, cousin of her deceased husband, was not found to be a convincing plea, in the absence of evidence of enmity with Godha. It also found that the land of the plaintiff is still joint with Godha. The plea of executing the Will only to save her land from co-tenure holder, Godha, cousin of her deceased husband, was not found to be a convincing plea, in the absence of evidence of enmity with Godha. It also found that the land of the plaintiff is still joint with Godha. The trial court found that plea of enmity with Godha and the desire of execution of Will in favour of Santosh is not convincing, since defendant in her statement stated that Smt. Santosh is her own daughter but in her written statement she admitted her to be a daughter–in-law. 34. The trial court has also dealt with the issue of relation of confidence between defendant and plaintiff which was alleged by the defendant in her written statement. The finding was recorded that their houses are not close to each other nor they are related and defendant has admitted that she took advice of the plaintiff only once and therefore her case that she used to take advice of the plaintiff in house hold matters was found false. Mansingh, who is stated to be father in law of Smt. Santosh and was examined as D.W.-2, was the man of confidence of the defendant but he never stopped defendant from executing the agreement to sale. Mansingh had accompanied the defendant when she executed disputed agreement to sale. Mansingh has been found to be a witness of the deed in dispute. 35. The trial court has recorded clear finding of fact that payment of Rs. 15,000/- to the defendant is not only proved from the statement of the plaintiff, P.W.1 but also from the statements of Samar Singh and Mohan Lal, P.W.2 and P.W.3 respectively. The endorsement of the Sub-Registrar has a great evidenciary value under Section 60 of the Registration Act. P.W.4 Furjullah who was reliable witness known to the defendant also proved the payment of Rs. 15,000 to the defendant. 36. The trial court found that plaintiff has clearly stated the manner in which he paid Rs.15000/- to the defendant and about her other sources of finance. The lower appellate court has found Rs.27,000/- in his bank account in the month of February 1981 which proves that the plaintiff was having resources for executing the sale deed for purchasing the land. The trial court found that plaintiff has clearly stated the manner in which he paid Rs.15000/- to the defendant and about her other sources of finance. The lower appellate court has found Rs.27,000/- in his bank account in the month of February 1981 which proves that the plaintiff was having resources for executing the sale deed for purchasing the land. The lower appellate court has also found Rs.17,000/- in his account before execution of agreement to sale and this proves that plaintiff was not such a person who did not had resources for purchasing land for Rs.40,000/- 37. The trial court has recorded the finding that in case the defendant had gone to the Registrar office to execute the Will in favour of Sontosh Devi why she did not took back the original document from the office of registering authority has not been explained. This circumstance has been found against the defendant by the trial court and the lower appellate court has not considered this finding at all. 38. The finding of the trial court that plaintiff has sent notice to the defendant for appearing before the Registrar Office on 10.2.1981 but she did not appeared and he got his presence before the Sub-Registrar noted has been found to be a fact proving his readiness and willingness to get the sale deed executed. The availability of money in his account has been found in the month of February 1981 and therefore finding of readiness and willingness recorded by the trial was justified and lower appellate court has wrongly interfered with the same. 39. The argument of the learned counsel for the defendant that this court cannot interfere with the findings of fact recorded by the lower appellate court is correct in a situation where the finding is not perverse, where the finding is not based on evidence on record or it has been recorded after incorrect appreciation of evidence by the lower appellate court, this court can always set aside the same. The Apex court in the case of Union of India Vs. Ibrahim Uddin and another 2012 Law Suit (SC) 433 has held in paragraphs 54, 55, 56. 54. The Apex court in the case of Union of India Vs. Ibrahim Uddin and another 2012 Law Suit (SC) 433 has held in paragraphs 54, 55, 56. 54. There is no prohibition to entertain a second appeal even on question of fact provided the Court is satisfied that the findings of the courts below were vitiated by non-consideration of relevant evidence or by showing erroneous approach to the matter and findings recorded in the court below are perverse. (Vide: Jagdish Singh Vs. Nathu Singh, AIR 1992 SC 1604 ; Smt. Prativa Devi (Smt.) v. T.V. Krishnan, (1996) 5 SCC 353 ; Satya Gupta(Smt.) @ Madhu Gupta Vs. Brijesh Kumar, (1998) 6 SCC 423 ; Ragavendra Kumar Vs. Firm Prem Machinery & Co. AIR 2000 SC 534 ; Molar Mal (dead) through Lrs. v. M/s. Kay Iron Works Pvt. Ltd., AIR 2000 SC 1261 ; Bharatha Matha & Anr. vs. R. Vijaya Renganathan & Ors., AIR 2010 SC 2685 ; and Dinesh Kumar Vs. Yusuf Ali, (2010) 12 SCC (740 ). 55. In Jai Singh Vs. Shakuntala, 2002, AIR SC 1428, this Court held that it is permissible to interfere even on question of fact but it may be only in “very exceptional cases and on extreme perversity that the authority to examine the same in extenso stands permissible it is a rarity rather than a regularity and thus in fine it can thus be safely concluded that while there is no prohibition as such, but the power to scrutiny can only be had in very exceptional circumstances and upon proper circumspection.” Similar view has been taken in the case of Kashmir Singh Vs. Harnam Singh & Anr., AIR 2008 (SC) 1749 . 56. Declaration of relief is always discretionary. If the discretion is not exercised by the lower court “in the spirit of the statute or fairly or honestly or according to the rules of reason and justice”, the order passed by the lower court can be reversed by the superior court. (See: Mysore State Road Trasnport Corporation vs. Mirja Khasim Ali Beg & Anr., 1977 AIR (SC) 747). 40. As discussed above this case falls in the rarest of the rare category since the lower appellate court has failed to consider the pleadings of the parties, evidence adduced and the findings of the trial court correctly in accordance with law. 41. (See: Mysore State Road Trasnport Corporation vs. Mirja Khasim Ali Beg & Anr., 1977 AIR (SC) 747). 40. As discussed above this case falls in the rarest of the rare category since the lower appellate court has failed to consider the pleadings of the parties, evidence adduced and the findings of the trial court correctly in accordance with law. 41. Law is well settled that the trial court has certain advantages over the appellate court. It has the opportunity to examine the demeanor of the witnesses directly which the appellant court does not have. Thereafter greater weight and sanctity has been attached to the findings of the trial court vis-a-vis the appellate court. 42. It is also well settled that the appellate court should not lightly interfere with the findings of the trial court without considering it properly and it interfered proper reasons should be recorded for the same. This view finds support in the judgment of Maya Devi (Supra) relied upon by the defendant's counsel. 43. Hence it is clear that lower appellate court has passed an ill-considered judgment without meeting and setting aside the findings of the trial court. It has imposed its findings over the findings of the trial court and at places has recorded finding which is absurd, like date of purchase of stamp paper. 44. From the above consideration it is clear that substantial question of law no. 1 deserves to be decided to the effect that plaintiff had sound financial status to acquire the property. The second substantial question of law is decided holding that lower appellate court was wrong in holding that since plaintiff did not withdrew the money from the bank account, therefore, it is doubtful that he entered into agreement to sale with defendant. 45. The third substantial question of law is decided holding that it was not necessary for the plaintiff to operate his bank account for the purpose of entering into contract of sale of the property since he had other sources of earnings from selling his agricultural product in the market and merely because purchaser of agricultural products sold by the plaintiff was not produced in evidence, it will not be construed that the plaintiff had no means for getting the agreement registered. 46. 46. Finally substantial question of law no.4 is decided holding that lower appellate court has wrongly decided the question of readiness and willingness of plaintiff to perform his part of the agreement without considering and setting aside the finding recorded by the trial court in this regard. 47. Therefore judgment and decree of the appellate court is based on perverse findings of fact which cannot be sustained. The judgment and decree passed by the lower appellate court are set aside and the judgment and decree of the trial court are affirmed. 48. This second appeal is allowed with cost.