ORDER/JUDGMENT :? Shri N. K. Gupta, Senior Counsel with Shri S.D.S. Bhadauria, Counsel for the appellants. Shri V. K. Bhardwaj, Senior Counsel with Shri Amit Lahoti, Counsel for the respondent. This First Appeal under section 96 of Civil Procedure Code has been filed against the Judgment and Decree dated 26-9-2003 passed by 3rd A.D.J., Vidisha in Civil Suit No. 30A/2002 and a decree for specific performance of contract has been granted. 2. The appellant is the legal heir of Smt. Janakibai, Wd/o Late Shri Manakchand Maheshwari. The defendants No. 1 and 2 are the sons of Late Shri Sunnulal. Both the appellants No. 1 and 2/defendants No. 1 and 2 have expired during the pendency of this appeal and their legal representatives have been brought on record. As appellant No. 3 also died during the pendency of this appeal, therefore, her legal representative was also brought on record. The defendant No. 4 died after the passing of the impugned Judgment and Decree but prior to filing of the appeal, and since there is a will Ex.P/5, therefore, no appeal has been filed on behalf of her legal heirs. 3. The necessary facts for disposal of the present appeal in short are that plaintiff/respondent filed a suit for specific performance of Contract on the ground that Late Sunnulal was the owner of a house situated in Kagadipura Colony, in front of Meghdoot Talkies and the boundaries of the same are as under : East - Meghdoot Talkies West - House of Dalchand North - House of Sindhi after road South - House of Ramnath 4. The mother of the plaintiff was a tenant in the house of Sunnulal and was residing in the said house and a suit for eviction was filed by Sunnulal against Smt. Janakibai, the mother of the plaintiff which was dismissed on 12-2-1996. Sunnulal was a very old and infirm person and was intending to go to Delhi for his treatment and was in need of money, therefore, he entered into an agreement to sell the house for a consideration amount of Rs. 70,000. It was pleaded that on 26-12-1994, an amount of Rs. 6,600 by way of arrears rent, an amount of Rs. 50,000 by way of agreement amount out of Total amount of Rs. 70,000. It was pleaded that on 26-12-1994, an amount of Rs. 6,600 by way of arrears rent, an amount of Rs. 50,000 by way of agreement amount out of Total amount of Rs. 70,000 was paid and it was agreed, that Sunnulal after returning from Delhi would execute a sale deed after receiving the remaining the amount of Rs. 13,400. Accordingly, an agreement to sell was executed by Sunnulal by affixing his thumb impression in front of the witnesses. Thereafter, Sunnulal went to Delhi, where he died as a result of which, he could not execute the sale deed. The appellant as well as Smt. Janakibai requested the defendants to execute the sale deed, however, the defendants always avoided to do so. It was further pleaded that the plaintiff was ready and is still willing to perform his part of contract. It was further pleaded that since, the plaintiff is a poor person having annual income of less then Rs. 6000, therefore, he is entitled for exemption from payment of Court fee. 5. Thereafter, the plaint was amended and the description of the property was changed and it was pleaded that Smt. Janakibai was the tenant of the ground floor of the house and the agreement to sell was executed in respect of front corridor (Single storey) and rear two rooms upto three story. 6. The defendants filed their written statement and accepted that Smt. Janakibai was the tenant of one portion of ground floor of the house, and it was also admitted that the suit for eviction was dismissed on 12-2-1996. It was further pleaded that the agreement to sell is a forged document and a new suit for eviction has also been filed on 15-10-1998. It was further pleaded that Sunnulal had never executed any agreement to sell in favor of Smt. Janakibai. Sunnulal was never in need of money and he was also no sick. His daughter and son-in-law are Doctors and are settled in Delhi, therefore, Sunnulal used to go to Delhi to meet them. The remaining part of the house had always remained in possession of Sunnulal. The payment of Rs. 6,600 by way of rent and Rs. 50,000 towards agreement amount was also denied. His daughter and son-in-law are Doctors and are settled in Delhi, therefore, Sunnulal used to go to Delhi to meet them. The remaining part of the house had always remained in possession of Sunnulal. The payment of Rs. 6,600 by way of rent and Rs. 50,000 towards agreement amount was also denied. Sunnulal was a literate person and used to sign and at some places, the contents of agreement to sell have been scored out, therefore, prima facie also, the same appears to be forged. The financial condition of Smt. Janakibai was very poor, and it was difficult for her to meet her financial needs. Sunnulal has expired on 8-4-1995. Thus, in all, it was claimed by the defendants that the agreement to sell is a forged and concocted document. 7. The trial Court after framing issues and recording evidence, came to a conclusion that an agreement to sell was executed by Sunnulal and accordingly, a decree for specific performance of contract was passed. 8. Being aggrieved by the impugned Judgment and Decree passed by the trial Court, the defendants have filed this appeal. It is submitted by the Counsel for the appellants, that the plaintiff himself was not sure about the extent of property and initially, the suit was filed in respect of the entire property and thereafter, it was amended and the area of the property was reduced. It is further submitted that Sunnulal was financially sound and he was Education Minister in Madhya Bharat Government. Sunnulal was a literate person and used to sign and had never put his thumb impression. It is further submitted that the financial condition of Smt. Janakibai was very poor and she was not able to fulfill her own financial requirements, therefore, there is no question of execution of agreement to sell. It is further submitted that the plaintiff has failed to plead and prove his readiness and willingness to perform his contract. It is further submitted that the plaintiff had himself admitted that he is a poor person having yearly income of less than Rs. 6,000/-. It is further submitted that the plaintiff has failed to plead and prove his readiness and willingness to perform his contract. It is further submitted that the plaintiff had himself admitted that he is a poor person having yearly income of less than Rs. 6,000/-. To buttress his contentions, the Counsel for the appellants has relied upon the judgments of Supreme Court passed in the case of (2019) 9 SCC 381 , (2005) 6 SCC 243 , (2004) 7 SCC 251 , (2011) 1 SCC 429 , (2015) 1 SCC 705 , (2005) 11 SCC 454 and the judgments of this Court passed in the case of 2003(1) MPJR 393 . 9. Per contra, it is submitted by the Counsel for the respondent that Sunnulal was in dire need of money and therefore, he agreed to sell that portion of the house, which was in possession of Smt. Janakibai. It is submitted that denial of agreement to sell is indicative of readiness and willingness of the plaintiff. To buttress his contentions, the Counsel for the respondents relied upon the judgments passed by Supreme Court in the case of AIR 2012 SC 2035 , (2014) 11 SCC 605 , (1999) 6 SCC 337 , AIR 2019 SC 1280 , and judgments passed by this Court in the case of 1988(1) MPWN SN 110, 1981(II) MPWN SN 36, 2007(2) MPJR 150, 2019 SAR (Civil) 188 as well as Judgment dated 19-4-2018 passed by this Court in the case of Kalyan Singh and others vs. Sanjeev Singh in F. A. No. 211/2002. 10. Heard the learned Counsel for the parties. 11. It is not out of place that the trial Court had exempted the plaintiff from payment of Court Fee, however, the order of the trial Court was set aside by the High Court and accordingly, the Court fee was paid by the plaintiff. 12. Shyamsunder (P.W.1) has stated that one corridor and two rooms were let out to his mother Smt. Janakibai. The agreement to sell was executed in the room which is behind the corridor and it was executed between Sunnulal and his mother. The agreement to sell was brought by Sunnulal. It was agreed that the total arrears of rent of Rs. 6,600 and an amount of Rs. 50,000 be paid and the remaining amount of Rs. 13,400 shall be payable at the time of execution of sale deed. The agreement to sell was brought by Sunnulal. It was agreed that the total arrears of rent of Rs. 6,600 and an amount of Rs. 50,000 be paid and the remaining amount of Rs. 13,400 shall be payable at the time of execution of sale deed. Sunnulal had affixed his thumb impression. Omprakash and Hridaymohan had signed as witness and the agreement to sell was also signed by his mother Smt. Janakibai. Since, the agreement to sell was executed on an insufficiently stamped paper, therefore, it was directed to be impounded. It was further stated that the agreement to sell, Ex.P.1 was executed on 26-12-1994. The agreement to sell was prepared by Sunnulal himself and on the instructions of his mother, the plaintiff had called the witnesses. It was further stated that at the time of execution of agreement to sell, the suit for eviction filed by Sunnulal was already pending, however, thereafter on 12-2-1996 the same was got dismissed. It was further stated that his mother expired on 14-9-1996. His mother and the plaintiff had requested the defendants to execute the sale deed, but that was not done, therefore, the suit for specific performance of contract was filed. It was also admitted by this witness, that he too had filed a suit for injunction against Sunnulal in which stay was granted. In cross-examination, this witness admitted that he knows the defendants No. 1 and 2 but cleverly stated that he does not know that whether they are Doctors by profession or not? However, he admitted that the wife of the defendant No. 2 is a Doctor, but thereafter, again he denied. He also admitted that he has seen the defendant No. 4 but also expressed his ignorance as to whether she is a Doctor by profession or not. He further admitted that he has seen the defendant No. 3 but again expressed his ignorance as to whether She is a Teacher in Govt. School or not. He further admitted that he has heard that the defendants have agriculture lands. He further admitted that Sunnulal was Education Minister in Madhya Bharat Govt. He expressed his ignorance about the educational qualification of Sunnulal but admitted that Sunnulal used to sign. He further admitted that prior to affixing his thumb impression on the agreement to sell, he had never seen Sunnulal putting his thumb impression. He further admitted that Sunnulal was Education Minister in Madhya Bharat Govt. He expressed his ignorance about the educational qualification of Sunnulal but admitted that Sunnulal used to sign. He further admitted that prior to affixing his thumb impression on the agreement to sell, he had never seen Sunnulal putting his thumb impression. He also stated that he does not know that whether Sunnulal had bank account with good deposits. He also stated that he do not recollect that on what date the rent was paid for the last time. He further admitted that after 1988 he had never paid any rent to Sunnulal but had always deposited in the Court. The suit for eviction was filed by Sunnulal in the year 1988 which was dismissed in the year 1998. He further expressed his ignorance as to whether he had ever deposited the rent in the Court or not. However, could not explain as to why he had not paid the rent from 1988 till 1994. He denied that since, his financial condition was not good, therefore, he could not pay the rent. He was also unable to disclose the period for which the amount of Rs. 6,600 was outstanding towards rent. In the evidence, the plaintiff stated for the first time, that his mother was running a Bhojnalaya and an amount of Rs. 50,000 was her saving from her business. However, he stated that only his mother can tell about the savings. He also stated that he cannot say that from where the agreement to sell was brought by Sunnulal. He was also not in a position to say that from where the agreement to sell was got typed. On his own, this witness stated that Sunnulal had instructed his mother to keep the money ready and he would bring the agreement to see. This witness has admitted that he has read the agreement to sell, but could not tell that what was originally written on the agreement to sell, which was subsequently scored out. He also could not explain that who had written the name of Sunnulal below his thumb impression. 13. The name and paternity of Hridaymohan is in his handwriting. Similarly, the name and paternity of Omprakash is in the handwriting of Omprakash. He also could not explain that who had written the name of Sunnulal below his thumb impression. 13. The name and paternity of Hridaymohan is in his handwriting. Similarly, the name and paternity of Omprakash is in the handwriting of Omprakash. He also stated that since, the agreement to sell was got typed by Sunnulal, therefore, only he can explain the discrepancies in the typing. He further stated that cases between Sunnulal and his mother were going on for the last 15 years. Sunnulal after digging holes in the tenanted premises used to rush to Delhi. The plaintiff had also lodged the report in this regard. Sunnulal had damaged the property. He further denied that Omprakash is his pocket witness and has appeared as his witness in other litigations. He further admitted that rent note Ex. P.10 bears the signature of her mother Janaki bai. He further admitted that original rent note was filed in C. S. No. 85A/1998 which was pending in the Court of 3rd Civil Judge Class 2, Vidisha and the photo copy of the rent note is Ex. D10C. It was admitted by this witness that three rooms were taken by his mother on rent for running a hotel, however, expressed his ignorance with regard to the amount of rent. This witness further stated in para 38 of his cross examination, that he was not poor for all the time, however, fairly admitted that at present his financial condition is not good, therefore, he had prayed for exemption from filing Court fee. He further admitted that after the death of his mother, his financial condition has deteriorated. Earlier the Bhojnalaya was fetching money but now as the defendants are continuously causing nuisance, therefore, Bhojnalaya is not running properly. 14. Omprakash (P.W.2) is one of the attesting witness. He has stated that Sunnulal was not keeping well and had told Smt. Janakibai that as his hands and legs are not working, therefore, he is putting his thumb impression. He also requested that since, Smt. Janakibai has to deposit certain rent in the Court, therefore, the same may be paid to him, because some time would be required to withdraw the amount from the Court. He further stated that while the agreement was being executed, Narendra Choukse also came there and he counted the money. He also requested that since, Smt. Janakibai has to deposit certain rent in the Court, therefore, the same may be paid to him, because some time would be required to withdraw the amount from the Court. He further stated that while the agreement was being executed, Narendra Choukse also came there and he counted the money. In cross examination, this witness admitted that he was arrested on the allegation of gambling and an amount of Rs. 57,000/- was seized from his possession. He further admitted that his criminal prosecution is going on. He denied that the plaintiff is involved in such activities. He further admitted that earlier he had appeared as a witness for Smt. Janakibai. He further admitted that rent note Ex. D10C bears the signatures of Smt. Janakibai but immediately thereafter, took a somersault and claimed that he cannot identify her signatures. He further claimed that he had seen Smt. Janakibai signing for once only. He further stated that an amount of Rs. 56,600/- was given in his presence. He further stated that from physical appearance, Sunnulal was looking fine and also admitted that he was the Education Minister. He also could not disclose the source of Rs. 50,000. 15. Narendra Choukse (D.W.3) has stated that he had gone to the house of the plaintiff in connection with taking his money back, therefore, he went upstairs, where talks with regard to sale of house was going on. Smt. Janakibai gave Rs. 56,600 to Sunnulal which was counted by this witness. Sunnulal had stated that since, he is sick and his hands and legs are not working therefore, he would affix his thumb impression. In cross-examination, he could not produce any document to show that any amount was outstanding against the plaintiff, however, he gave an explanation that whenever the loan amount is repaid, he used to torn the papers. He further stated that Sunnulal was lying and only because of that he gathered an impression that Sunnulal is not well. He further clarified that since, Sunnulal himself had stated that he is not well therefore, he is saying that Sunnulal was not well. 16. Dr. Anil Kumar (D.W.1) has denied the execution of agreement to sell. He further stated that the financial condition of Sunnulal was sound. He further clarified that since, Sunnulal himself had stated that he is not well therefore, he is saying that Sunnulal was not well. 16. Dr. Anil Kumar (D.W.1) has denied the execution of agreement to sell. He further stated that the financial condition of Sunnulal was sound. He further stated that his father Sunnulal had handsome amount in the Fixed Deposit in Zila Sahakari Kendriya Bank Maryadit, Vidisha and State Bank of Indore. The original pass book of account in State Bank of Indore was filed as Ex. D-12, 13. The pass book of Zila Sahakari Kendriya Bank Maryadit is Ex. D-14, 15,16,17,18,19. The F.D.R. Of Zila Sahkari Kendriya Bank Maryadit, Vidisha is Ex. D-20. He further stated that Smt. Janaki had taken some part of ground floor on rent for running Bhojnalaya. He further stated that his father had 10.661 hectares of land in village Barakheda Tahsil and Distt. Vidisha. He further stated that his father was not sick and was not suffering from any disease. He further stated that for most of the time in the last 3 years of his life, he had stayed with Dr. Rameshchand in Delhi. In cross-examination, this witness stated that at present he is attached in the office of Distt. Malaria Officer. He was tried for an offence under section 302 of Indian Penal Code, in which he was acquitted against which appeal is pending in the High Court. He further stated that initially the tenancy was at the rate Rs. 150 per month, which was enhanced to Rs. 220 per month. The rent has not been deposited. He further stated that Sunnulal used to sign and had never affixed his thumb impression. He further stated that Smt. Janakibai had never taken loan from him, but clarified that she did not pay the rent for the last 10 years. He further stated that the suit which was filed by his father was dismissed as abated as his legal heirs were not brought on record, however, stated that they have filed a suit for eviction which is registered as C.S. No. 188A/1992. Will Ex. P. 5 was put by the appellant to this witness, however, he denied of having knowledge of the said Will. In para 19 of his cross-examination, this witness has given the details of the amount which was deposited in the bank accounts of Sunnulal. 17. Will Ex. P. 5 was put by the appellant to this witness, however, he denied of having knowledge of the said Will. In para 19 of his cross-examination, this witness has given the details of the amount which was deposited in the bank accounts of Sunnulal. 17. If the evidence of the witnesses is considered, then it is clear that the plaintiff Shyamsunder (P.W.1) has expressed his ignorance by saying that either his mother was aware or Sunnulal may clarify. However, one thing is clear that during the life time of Smt. Janakibai, neither any suit for specific performance of Contract was filed, nor any notice in writing for execution of sale deed was ever given. Even, no notice was ever given by the plaintiff for execution of Sale deed at all. 18. Whether, the agreement to sell, Ex. P1 contains the thumb impression of Sunnulal ? In order to hold that the agreement to sell, Ex. P1 contains the thumb impression of Sunnulal, the trial Court has relied upon the Will, Ex. P.5 which was executed by Sunnulal in favor of his son Rameshchandra. The trial Court in para 12 of its Judgment has referred to the contents of Will Ex. P.5 in which it was mentioned by Sunnulal that he is old, suffering from physical weakness and is unable to walk with weak eye sight, and has no hope of life, therefore, executing the Will, Ex. P5 by affixing his thumb impression. Thus it was held that the stand taken by the plaintiff that Sunnulal was not well is correct, therefore, it was held that Sunnulal had affixed his thumb impression was proved. In the considered opinion of this Court, the above findings recorded by the trial Court are contrary to the record. Will Ex. P.5, not only contains the thumb impression of Sunnulal but also contains his signatures, which was ignored by the trial Court. From the naked eye, it is clear that the signatures of Sunnulal are clear and sharp and there is no sign of shaking or shivering. There may be a reason for putting the thumb impression also. No one can put duplicate thumb impression, therefore the genuineness of the document can always be verified by comparing the thumb impressions. Further, the Will, Ex. P.5 was put by the appellant, to Dr. Anil Kumar (D.W.1). There may be a reason for putting the thumb impression also. No one can put duplicate thumb impression, therefore the genuineness of the document can always be verified by comparing the thumb impressions. Further, the Will, Ex. P.5 was put by the appellant, to Dr. Anil Kumar (D.W.1). Thus, it is clear that the plaintiff was already in possession of admitted thumb impression of Sunnulal therefore, he could have got the thumb impressions verified/compared, but no steps were taken by him. Since, the plaintiff had claimed that the thumb impression was affixed by Sunnulal and the same was denied by the defendants, then the initial burden was on the plaintiff to prove that the agreement to sell, Ex. P.1 contains the thumb impression of Sunnulal. There is no presumption in favor of the plaintiff. The plaintiff has failed to prove that his mother had any money or savings to pay an amount of Rs. 50,000/-. The fact that the plaintiff or his mother were in arrears of rent is an admitted position. When the plaintiff or his mother were not in a position to pay the rent regularly and were in arrears of rent, then it can be presumed that the financial condition of the plaintiff or his mother was not good. The plaintiff Shyam Sunder (P.W.1) has stated that it was Sunnulal who had brought the typed agreement to sell and this witness also could not clarify as to from where Sunnulal had got the said document typed, and it is not the case of the plaintiff that Sunnulal was accompanied by any attendent, therefore, it is clear that Sunnulal was in a position to walk. He was also in a position to get the documents typed. This evidence of the plaintiff completely demolishes the case of the plaintiff that Sunnulal was sick. Narendra Chowkse (D.W.3) has gone a step forward and stated that Sunnulal was lying therefore, he gathered an impression that he was sick. Further, in Will Ex. P.5, it was merely written that Sunnulal was old, infirm, unable to move with weak eyesight. This would not mean that he was not in a position to understand or sign the documents. The Supreme Court in the case of Rajaram vs. Jai Prakash Singh, reported in (2019) 8 SCC 701 has held as under : 11. P.5, it was merely written that Sunnulal was old, infirm, unable to move with weak eyesight. This would not mean that he was not in a position to understand or sign the documents. The Supreme Court in the case of Rajaram vs. Jai Prakash Singh, reported in (2019) 8 SCC 701 has held as under : 11. The deceased on account of his advanced age may have been old and infirm with a deteriorating eyesight, and unable to move freely. There is no credible evidence that he was bedridden. Hardness of hearing by old age cannot be equated with deafness. The plaintiff, despite being the son of the deceased, except for bald statement in the plaint, has not led any evidence in support of his averments. It is an undisputed fact that the deceased appeared before the Sub-Registrar for registration. It demolishes the entire case of the plaintiff that the deceased was bedridden..................... 19. Further, it is clear from the bank accounts of Late Sunnulal, he was having sufficient amount in his bank account. Further, admittedly, Sunnulal had remained Education Minister in Madhya Bharat Govt. Thus, not only he was literate person, but had worked as Education Minister also. Thus, this Court is of the considered opinion, that the agreement to sell, Ex. P.1 was never executed by Sunnulal and it is a forged and concocted document. 20. Further in the case in hand, the trial Court has misplaced the burden of proof on the defendants. It is well established principle of law that the plaintiff has to succeed on the strength of his own case, and cannot take advantage of the weakness of the defendant. However, the trial Court has assessed the case of the plaintiff by misplacing the burden of proof on the defendants. The trial Court has merely reproduced the evidence of the plaintiffs and without appreciating the same, has treated the said evidence as gospel truth. Para 14 of the Judgment is the conclusion of the trial Court. Simply by saying that Mahendra Singh (P.W1) and Narendra Chowkse (P.W.3) have supported the case of the plaintiff and the evidence of the plaintiff could not be demolished and there is no reason for creating any forged document, therefore, it was held there is no reason to disbelieve the evidence of the plaintiffs. Simply by saying that Mahendra Singh (P.W1) and Narendra Chowkse (P.W.3) have supported the case of the plaintiff and the evidence of the plaintiff could not be demolished and there is no reason for creating any forged document, therefore, it was held there is no reason to disbelieve the evidence of the plaintiffs. In the considered opinion of this Court, this is not the correct method of appreciation of evidence of plaintiff. The Supreme Court in the case of Rangammal vs. Kuppuswami, reported in (2011) 12 SCC 220 has held as under : 21. Section 101 of the Evidence Act, 1872 defines “burden of proof” which clearly lays down that : “101. Burden of proof. – Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist. When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.” Thus, the Evidence Act has clearly laid down that the burden of proving a fact always lies upon the person who asserts it. Until such burden is discharged, the other party is not required to be called upon to prove his case. The Court has to examine as to whether the person upon whom the burden lies has been able to discharge his burden. Until he arrives at such conclusion, he cannot proceed on the basis of weakness of the other party. 22. In view of this legal position of the Evidence Act, it is clear that in the instant matter, when Respondent 1-plaintiff pleaded that the disputed property fell into the share of the plaintiff by virtue of the sale deed dated 24-2-1951, then it was clearly for Respondent 1-plaintiff to prove that it was executed for legal necessity of the appellant while she was a minor. But, the High Court clearly took an erroneous view while holding that it is the appellant-defendant who should have challenged the sale deed after attaining majority as she had no reason to do so since Respondent 1-plaintiff failed to first of all discharge the burden that the sale deed in fact had been executed for legal necessity of the minor?s predecessor mother was without the permission of the Court. It was not the appellant-defendant who first of all claimed benefit of the sale deed or asserted its genuineness, hence the burden of challenging the sale deed specifically when she had not even been dispossessed from the disputed share, did not arise at all. 23. A plethora of commentaries emerging from series of case laws on burden of proof, which are too numerous to cite, lay down that when a person after attaining majority, questions any sale of his property by his guardian during his minority, the burden lies on the person who upholds/asserts the purchase not only to show that the guardian had the power to sell but further that the whole transaction was bona fide. This was held in Roop Narain Singh vs. Gugadhur Pershad, as also in Anna Malay vs. Na U Ma. * * * * 33. Since the High Court has misplaced the burden of proof, it clearly vitiated its own judgments as also of the Courts below since it is well-established dictum of the Evidence Act that misplacing burden of proof would vitiate the judgment. It is also equally and undoubtedly true that the burden of proof may not be of much consequence after both the parties lay evidence, but while appreciating the question of burden of proof, misplacing of burden of proof on a particular party and recording findings in a particular way definitely vitiates the judgment as it has happened in the instant matter. This position stands reinforced by several authorities including the one delivered in Koppula Koteshwara Rao vs. Koppula Hemantha Rao. 34. It has been further held by the Supreme Court in State of J. and K. vs. Hindustan Forest Co. wherein it was held that the onus is on the plaintiff to positively establish its case on the basis of the material available and it cannot rely on the weakness or absence of defence to discharge the onus. 21. The Counsel for the respondent has relied upon the judgment passed by this Court in the case of Kalyan Singh and others vs. Sanjeev Singh in F. A. No. 211/2002 on 19-4-12018 and submitted that the initial burden to prove that the agreement to sell was a forged document was on the defendants. 22. Considered the submission made by the Counsel for the respondent. 23. 22. Considered the submission made by the Counsel for the respondent. 23. This Court in the case of Kalyan Singh (supra) has held as under : Para 18......... Thus, the onus of proof that the appellant No. 1 had signed the agreement to sell, Ex P.1 was discharged by the respondent/plaintiff, therefore, the onus of proof had shifted to the appellants to prove that the agreement to sell, Ex. P.1 was not signed by the appellant No. 1............. 24. From the plain reading of these paragraphs, it is clear that this Court had held that since, the initial burden to prove the execution of agreement to sell was discharged by the plaintiff, therefore, the onus of proof has shifted to the defendants. This Court had never held that even in absence of initial discharge of burden by the plaintiff, the defendant is always required to prove that the agreement to sell was not executed by the executant. 25. Further, the trial Court did not frame any issue on the question of readiness and willingness. Even the plaintiff Shyamsunder (P.W.1) has not stated that he is still ready and willing to perform his part of contract, on the contrary, first of all he sought exemption from payment of Court fee on the ground that his yearly income is less than Rs. 6000 and further in his cross examination, he clearly admitted that his financial condition is very poor and his Bhojnalaya is not running property. 26. The Supreme Court in the case of Kalawati vs. Rakesh Kumar, reported in (2018) 3 SCC 658 has held as under : “17. The law on the subject of specific performance of contracts is quite clear and it is not necessary to cite the dozens of judgments delivered by this Court on the issue. However, it is necessary to refer to two decisions which are quite apposite to the facts of the case before us. 18. In Acharya Swami Ganesh Dassji vs. Sita Ram Thapar this Court drew a distinction between readiness to perform the contract and willingness to perform the contract. It was observed that by readiness it may be meant the capacity of the plaintiff to perform the contract which would include the financial position to pay the purchase price. 18. In Acharya Swami Ganesh Dassji vs. Sita Ram Thapar this Court drew a distinction between readiness to perform the contract and willingness to perform the contract. It was observed that by readiness it may be meant the capacity of the plaintiff to perform the contract which would include the financial position to pay the purchase price. As far as the willingness to perform the contract is concerned, the conduct of the plaintiff has to be properly scrutinised along with attendant circumstances. On the facts available, the Court may infer whether or not the plaintiff was always ready and willing to perform his part of the contract. It was held in paragraph 2 of the Report : (SCC p.528) “2. There is a distinction between readiness to perform the contract and willingness to perform the contract. By readiness may be meant the capacity of the plaintiff to perform the contract which includes his financial position to pay the purchase price. For determining his willingness to perform his part of the contract, the conduct has to be properly scrutinised…... The factum of readiness and willingness to perform plaintiff’s part of the contract is to be adjudged with reference to the conduct of the party and the attending circumstances. The Court may infer from the facts and circumstances whether the plaintiff was ready and was always ready and willing to perform his part of the contract. The facts of this case would amply demonstrate that the petitioner/plaintiff was not ready nor had the capacity to perform his part of the contract as he had no financial capacity to pay the consideration in cash as contracted and intended to bide for the time which disentitles him as time is of the essence of the contract.” 19. In I. S. Sikandar vs. K. Subramani this Court noted that the plaintiff is required to prove that from the date of execution of the agreement of sale till the date of the decree, he was always ready and willing to perform his part of the contract. In this case, looking the attendant facts and circumstances, the Court upheld the view of the Trial Judge that the plaintiff had no money to pay the balance sale consideration and was apparently not capable of making necessary arrangements for payment of the balance consideration. In this case, looking the attendant facts and circumstances, the Court upheld the view of the Trial Judge that the plaintiff had no money to pay the balance sale consideration and was apparently not capable of making necessary arrangements for payment of the balance consideration. It was held in paragraph 45 and paragraph 47 of the Report : (SCC pp.41-42) “45.……..Further, the plaintiff is required to prove the fact that right from the date of execution of the agreement of sale till the date of passing the decree he must prove that he is ready and has always been willing to perform his part of the contract as per the agreement……” * * * “47. Further, there is nothing on record to show that the plaintiff could have made arrangement for payment of the balance consideration amount to them. But, on the other hand the trial Court has recorded the finding of fact to the effect that the correspondence between the parties and other circumstances would establish the fact that the plaintiff had no money for payment of balance sale consideration…….” 27. In N. P. Thirugnanam (Dead) by LRs. vs. Dr. R. Jagan Mohan Rao and others, reported in (1995) 5 SCC 115 , it was held by the Supreme Court as under : “Continuous readiness and willingness on the part of the plaintiff is a condition precedent to grant of the relief of specific performance. This circumstance is material and relevant and is required to be considered by the Court while granting or refusing to grant the relief. If the plaintiff fails to either aver or prove the same, he must fail. To adjudge whether the plaintiff is ready and willing to perform his part of the contract, the Court must take into consideration the conduct of the plaintiff prior to and subsequent to the filing of the suit along with other attending circumstances. The amount of consideration which he has to pay to the defendant must necessarily be proved to be available.” 28. In Pushparani S. Sundaram and others vs. Pauline Manomani James (deceased) and others, reported in (2002) 9 SCC 582 , the Supreme Court has held inference of readiness and willingness could be drawn from the conduct of the plaintiff and the totality of circumstances in a particular case. In Pushparani S. Sundaram and others vs. Pauline Manomani James (deceased) and others, reported in (2002) 9 SCC 582 , the Supreme Court has held inference of readiness and willingness could be drawn from the conduct of the plaintiff and the totality of circumstances in a particular case. It was held thus: “So far these being a plea that they were ready and willing to perform their part of the contract is there in the pleading, we have no hesitation to conclude, that this by itself is not sufficient to hold that the appellants were ready and willing in terms of section 16(c) of the Specific Relief Act. This requires not only such plea but also proof of the same. Now examining the first of the two circumstances, how could mere filing of this suit, after exemption was granted be a circumstance about willingness or readiness of the plaintiff. This at the most could be the desire of the plaintiff to have this property. It may be for such a desire this suit was filed raising such a plea. But section 16(c) of the said Act makes it clear that mere plea is not sufficient, it has to be proved.” 29. Similar view has been taken by Supreme Court in Manjunath Anandappa URF Shivappa Hanasi vs. Tammanasa and others, reported in (2003) 10 SCC 390 , Pukhraj D. Jain and others vs. G. Gopalakrishna, reported in (2004) 7 SCC 251 , J. Samuel vs. Gattu Mahesh, reported in (2012) 2 SCC 300 , Jagjit Singh vs. Amarjit Singh, reported in (2018) 9 SCC 805 . 30. In the case in hand, the defendants had never admitted the execution of agreement to sell, therefore, the initial burden was on the plaintiff to prove that the agreement to sell was executed by Sunnulal. The plaintiff has failed to prove that Sunnulal was sick or was in need of money. The plaintiff has also failed to prove that either he or his mother were financially sound to pay Rs. 56,600/-. The plaintiff has also failed to prove that the agreement to sell, Ex. P.1 bears the thumb impression of Sunnulal. Thus, it is held that agreement to sell, Ex. P.1 is a concocted and forged document. The plaintiff has also failed to prove that either he or his mother were financially sound to pay Rs. 56,600/-. The plaintiff has also failed to prove that the agreement to sell, Ex. P.1 bears the thumb impression of Sunnulal. Thus, it is held that agreement to sell, Ex. P.1 is a concocted and forged document. Further in view of the admission of Shyamsunder (P.W.1) that his financial condition is very poor (Para 38), it is held that the plaintiff has failed to prove his case. 31. Accordingly, the judgment and decree dated 26-9-2003 passed by 3rd Additional District Judge, Vidisha in C. S. No. 30A/2002 is hereby set aside. The suit for specific performance of contract, filed by the respondent is hereby Dismissed. The appeal succeeds and is hereby Allowed.