Judgment:
C.L. Pangarkar, J.
1. These two appeals can be disposed of by common judgment since they arise out of judgment in Special Civil Suit No. 857 of 2002. Appeal No. 732 of 2007 has been preferred by original defendants 6 and 7 while Appeal No. 690 of 2007 has been preferred by original defendants No. 1 to 3. Respondent No. 1 is the original plaintiff. The parties shall hereinafter be referred to as plaintiff and defendants.
2. Defendants No. 1 to 3 are the owners of Survey No. 91 of village Warora District Nagpur. The defendants 1 to 3 entered into an agreement of sale of 2.80 hectares i. e. 7 acres of land with the plaintiff. Price of the said land was settled at Rs. 1,37,500/per acre. Thus the plaintiff was to pay total consideration of Rs. 9,62,500/. One of the conditions of the agreement of sale was that the plaintiff purchaser would pay Rs. 3,00,000/to the defendants 1 to 3 upon which the defendants would execute the sale deed in respect of 2 acres of land. At the time of execution of the agreement of sale plaintiff paid Rs. 75,000/in cash to the defendants 1 to 4. Defendant No. 1 had obtained a loan for purchase of a vehicle from one Finance Company. It was agreed that the plaintiff would repay the loan of Rs. 1,50,000/due to the said finance company. Accordingly plaintiff had issued three cheques of Rs. 50,000/each. It is the contention of the plaintiff that he paid Rs. 3,00,000/total to the defendants 1 to 3. Inspite of that, it is alleged, that defendants 1 to 3 failed to execute the sale deed. It was also agreed that the total land would be sold on or before 17.1.2002. It is the contention of the plaintiff that without giving any notice to the plaintiff the defendants 1 to 3 executed a sale deed in respect of 5 acres of land in favour of defendants 4 and 5 by registered sale deed dated 13.07.2001. Plaintiff submits that this was a clear act of cheating. The plaintiff published a notice in the daily newspaper informing the public not to purchase the said property. A notice was also sent to defendants 1 to 3. Defendants 4 and 5 later sold the same piece of land to defendants 6 and 7 by a sale deed dated 07.02.2002. Plaintiff submits that the plaintiff was ready and willing to execute the sale deed(?). Plaintiff therefore instituted a suit for specific performance of contract and for setting aside the sale in favour of defendants 4 to 7.
3. Defendants 1 to 3 filed their separate Written Statement at Ex. 23. Defendants do not dispute that defendants 1 to 3 are the owners of the suit property. They also do not dispute that they had agreed to sale 7 acres of land to the plaintiff for consideration of Rs. 2,62,500/. They also do not dispute that upon payment of Rs. 3,00,000/to them they were to execute initially a sale deed in respect of 2 acres of land. Further they do not dispute that the entire land was to be sold on or before 17.11.2002. Defendants submit that it was the plaintiff who was unwilling to perform his part of contract and at his request the land was sold by the defendants 1 to 3 to defendants 4 and 5. It is also the contention of the defendants that plaintiff failed to execute the sale deed in respect of 2 acres of land. Their specific contention is that they did not receive a sum of Rs. 3,00,000/which was a condition precedent for execution of sale deed in respect of 2 acres of land. They also submit that they had called upon the plaintiff to produce the evidence in respect of payment of money to defendants 1 to 3 and they had even signed the sale deed to be executed in favour of the plaintiff. They submit that the sale deed was not registered in respect of two acres of land because of the fact that plaintiff though agreed to produce the receipts of the payments to the defendants failed to do so. The defendants submit that plaintiff had in fact paid Rs. 1,02,992/. The cheques issued by the plaintiffs in favour of Finance Company were never encashed. The defendants finally submit that since plaintiff f's financial condition was not proper and therefore he had asked defendants to execute sale deed in favour of defendants 4 and 5 and plaintiff was never ready and willing to perform his part of the contract.
4. Defendants 4 and 5 have filed their separate Written Statement and have raised a preliminary objection. According to defendants the agreement that was entered into was for and on behalf of Sai Kripa Housing Agency which appears to be a partnership firm. They submit that agreement would show that present plaintiff Manikrao represents the said firm as partner. They also submit that the suit has been filed in an individual name of Manikrao and therefore suit itself is not maintainable. Defendants 4 and 5 contend that they are not aware of the terms of contract between plaintiff and defendants 1 to 3. They contend that plaintiff was knowing the defendants 4 and 5. He introduced defendants 4 and 5 to the defendants 1 to 3 and with a proposal that sale deed should be executed by defendants 1 to 3 in favour of defendants 4 and 5. They contend that accordingly the sale deed is executed and plaintiff therefore has filed this suit mischievously.
5. Defendants 6 and 7 have also filed their separate Written Statement. These defendants also feign ignorance with regard to the terms and conditions of agreement between plaintiff and defendants 1 to 3. They submit that they do not know anything about the transaction. Defendants submit that they had agreed to purchase the land from defendants 4 and 5 and had published a notice in the Lokmat Newspaper on 29.12.2001 informing public at large about their intended purchase. Inspite of said publication of public notice nobody raised an objection and the sale deed was registered on 07.02.2002. They submit that more than one month's time was available for plaintiff to make a grievance but he did not do anything in the matter. They submit that they have therefore purchased the property bonafide and silence on the part of the plaintiff clearly indicates that he had no objection.
6. On these pleadings of the parties the learned Judge of the trial Court framed issued. He found that defendants 1 to 3 had entered into an agreement of sale and plaintiff had infact paid Rs. 3,00,000/to the defendants. He also found that plaintiff was ready and willing to perform his part of the contract. Holding so he set aside the sale deed executed in favour of defendants 4 and 5 and 6 and 7 and held that plaintiff was entitled to decree for specific performance. Being aggrieved by that these two appeals have been preferred.
7. I have heard the learned Counsel for appellant and the respondents. The following points arise for my consideration on their submissions and I am recording my findings on them:
POINTS:
1. Whether suit is brought in wrong name and by a person having no privity of contract with defendants 1 to
3? ...Yes.
2. Whether the contract was void because the property of minor was sought to be sold without the permission of the District Judge? ... No.
3. Whether the plaintiff was ready and willing to perform his part of contract with regard to 2 acres of land as well as remaining land of 5 acres? ... No.
8. Point No. 1: The description of the plaintiff in the cause title of plaint is as follows:
Shri Manikrao s/o Ramaji Sonwane,
Proprietor Sai Kripa Housing Agency,
aged about 46 years, Occupation: Business,
R/o Indira Nagar, Jat Tarodi, Nagpur.
From this cause title it appears that the plaintiff claims that Sai Kripa Housing Agency is a proprietory concern. There is no doubt that the proprietor of the business concern can sue in his own name. However, in this case defendants 4 and 5 submit that the agreement was with partnership firm and the suit is not brought in the name of partnership firm and therefore the suit is bad. This was the preliminary objection in the Written Statement. It would be necessary to look into the agreement of sale Ex. 35. In the said agreement the vendee is described as Sai Kripa Housing Agency through partner Manikrao Ramaji Sonwane. The agreement therefore makes it clear that the agreement was entered into by a partnership firm through Manikrao as a partner. Specifically word partner is used and the vendee is shown as Sai Kripa Housing Agency. The description is clear and unambiguous. In the context oral evidence of the plaintiff has to be looked into. In the cross examination for defendants 4 and 5 P. W. 1 Manikrao states as follows. I quote his admission in his own words:
Saikripa Housing Agency which is the partnership firm is registered consisting of two partners namely myself and my wife. Shakuntalabai. It is true that agreement was enter into in the name of said Saikripa Housing Agency a partnership firm. It is true that this agreement is not entered into in personal name. It is true that I have not entered into said agreement as the proprietor of the Saikripa Housing Agency. It is true that this suit is not brought by partnership firm.
It is true that in my plaint and in my affidavit I have not whispered about Saikripa Housing Agency a partnership. Witness volunteer that he filed this suit in his personal capacity. It is true that I have not mention about relation between Saikripa Housing Agency a partnership firm and proprietory concerned. I cannot assign any reason as to why I have not whispered about said relation.
Now with this admission it is clear that there is a partnership firm of P. W. 1 Manikrao of which he and his wife are partners. He admits that the agreement was between partnership firm and he had not entered into an agreement as a proprietor. The suit is admittedly brought in individual name and not in the name of the partnership firm at all. Now if the agreement was with partnership firm and the suit is brought in personal capacity, it is a suit brought in the name of wrong plaintiff and by a person having no privity of contract.
9. Shri Dharmadhikari learned Senior Counsel for the respondent No. 1 submits that it is not a partnership firm and a layman does not understand the intricacies of law. He brings to my notice the part of the cross examination by defendants 4 and 5. He submits that plaintiff specifically says, he is a proprietor and even gives the name of the concern and its registration number. No doubt witness P. W. 1 Manikrao says he is a proprietor and gives out the registration number. Though he says in the first part of his evidence that he is a proprietor in later part which is quoted above, he admits that agreement was entered into in the name of Saikripa Agencya partnership firm and suit is brought in personal capacity. The inference that can be drawn from this, is that the plaintiff may be carrying out business in two different capacities and names. That appears to be a fact since P. W. 1 admits that he has not pleaded in the plaint about relation between Saikripa Housing Agency a partnership firm and the proprietory concern. The fact however remains and is clear from evidence that agreement was with partnership firm but suit is brought by individual. The learned Judge of trial Court seems to have dealt with the question in a very slipshod manner. He no doubt accepts that plaintiff entered into an agreement as partner and suit is filed as a proprietor. He says that on this technical ground relief cannot be refused to plaintiff. Indeed the concept in the mind of the learned Judge appears to be strange. Suit itself is brought by a person not having privity of contract who cannot enforce it at all. The suit was therefore bad and was liable to be dismissed on this count alone.
10. Point No. 2: Learned Counsel for the appellant/defendants contend that there is no averment in the plaint that the contract was entered into by defendants 1 and 2 for the benefit of minor defendant No. 3 or that it will so benefit the minor. He submits that a guardian has no right to sell the property of minor without obtaining permission of the District Judge and admittedly in this case the permission is not obtained. Vendor No. 2 was definitely a minor and is represented by natural guardian mother. The argument will have to be appreciated bearing in mind the provisions of Hindu Minority And Guardianship Act as well as Guardian and Wards Act. The suit property is admittedly the ancestral property of defendants 1 to 3 i. e. vendors of the plaintiff. Section 6 of the Hindu Minority And Guardianship Act says that in the absence of the father the minor shall be the guardian of the person and property of the minor excluding his undivided share in the joint family property. Section 8 speaks of powers of natural guardian in respect of separate property of the minor. Section 8 has no application to cases where the minor has an interest in Hindu undivided family. Supreme Court in a decision reported in Sri Narayan Bal and Ors. v. Sridhar Sutar and Ors. : (1996) 8 Supreme Court Cases 54 has held as follows:
In the instant case the finding recorded by the Courts below is that Jag Bandhu, the eldest male member in the family acted as a Karta in executing the sale and had joined with him the two widows for themselves and as guardians of the minor members of joint Hindu family, as supporting executants. That act by itself is not indicative of the minors having a divided interest in the joint Hindu family property commencing before or at the time of the sale. In this view of the matter, Section 8 of the Act can be of no avail to the appellant's claim to nullify the sale.
11. It is thus clear that the permission of the Court under Section 8 of the Hindu Minority and Guardianship Act read with the provisions of Guardian and Wards Act would not be necessary where an interest in the joint family is sought to be disposed of. In the instant case the elder brother and mother have joined the execution of the agreement who is the Karta of the joint family. Shri Bhangde Senior Counsel for the appellant contends that the power of the guardian is limited and they can function with in the doctrine of legal necessity or benefit. He relied on a decision of this Court in Popat Namdeo Sodanvor minor by his guardian mother Sundarabai v. Jagu Pandu Govekar : AIR 1969 Bombay 140, the High Court observed as follows:
19. I now turn to the Full Bench decision in AIR 1956 AP 33 (FB) referred to above. In that case, there was one contract entered into by a guardian of a Hindu minor which embodied both an agreement to sell the minor's property and to purchase it after the minor had attained majority. The other parties to the agreement brought a suit for the specific performance of this contract as in the meantime the guardian had sold the property to somebody else sub sequent to the above agreement. So the question arose whether a contract entered into by a guardian of a Hindu minor for sale or for purchase of immoveable property was specifically enforceable against the minor, and, that question was referred to the Full Bench in view of the observations made by Vishwanath Sastri J. in AIR 1951 Mad 431 already referred to. The opinion of the Full Bench was delivered by the learned Chief Justice. The whole question was reviewed in detail and they have deduced principles with which, with great respect, I find entirely in agreement, The principles and points made out may be stated as follows:
(1) A minor has no legal competency to enter into a contract or authorise an other to do so on his behalf. A guardian, therefore, steps in to supplement the minor's defective capacity;
(2) Capacity is the creation of law, whereas authority is derived from (nature of) the act of parties;
(3) The limit and extent of the guardian's capacity (authority) are conditioned by Hindu law. They can only function within the doctrine of legal necessity or benefit. The validity of the transaction is judged with reference to the scope of his power to enter into a contract on behalf of the minor;
(4) Even the personal liability arising out of the guardian's contract is a liability of the minor's estate only;
(5) Since the guardian under the Hindu law has the legal competency to enter into a contract on behalf of the minor for necessity or for the benefit of the estate, the contract is valid from the time of its inception, and since either party can enforce and contract, the test of mutuality is satisfied;
(6) There cannot be any essential distinction between a contract of sale and contract of purchase. The difference is only one of degree. There is no difference in principle between the case of purchase by a guardian and that of a case of a sale by a guardian, because both depend for their validity on the competency of the guardian acting within the scope of his power under Hindu law;
(7) An agreement to convey or purchase is only a preliminary step in completing a transaction of sale or purchase as the case may be. Without negotiations and without any agreement, oral or in writing, rarely is a sale deed executed and registered. To hold that guardian can execute a sale deed in respect of a specific property but he cannot legally enter into an agreement to convey or purchase the same is incongruous and illogical;
(8) Contracts to sell or purchase property are transactions closely connected with dealings in immoveable property by a guardian giving rise to obligations annexed to that property. They cannot b e equated with contracts of loans imposing personal obligations on the minor.
(9) The courts following the decision in Mir Sarwarjan's case, (ILR 1912) Cal 232 (PC) had held that a contract of sale or purcahse entered into by a guardian on behalf of a minor could not be enforced against the minor on the ground of mutuality. That view is no longer sound in view of the later Privy Council decision in : 75 Ind App 115 : AIR 1948 PC 95 which, in clear and unambiguous terms, rules otherwise.
20. The last conclusion seems to be inevitable on the authority. I have not been referred to any judgment of the Supreme Court or of this Court subsequent to the Privy Council decision in : 75 Ind App 115 : AIR 1948 PC 95 taking a contrary view or even doubting it. I would, therefore, hold that a contract to purchase immoveable property by a competent guardian acting within his authority on behalf of a minor is specifically enforceable by or against the minor.
It is clear from this decision that a guardian has a power to enter into a contract on behalf of a minor and it could be so enforced against the minor. It will always be for the minor to repudiate or not to repudiate on attaining majority. The contract is therefore not void. The point is accordingly answered.
12. Point No. 3: The facts disclose that there was a genuine agreement of sale. It is the case of the plaintiff that though he had paid consideration of Rs. 3,00,000/to become entitle to execution of sale deed in his favour in respect of two acres of land the defendants 1 to 3 failed to execute the said sale deed. The agreement of sale Ex. 35 is dated 17.05.2001. The agreement is in respect of sell of total 7 acres of land at the rate of Rs. 1,37,500/per acre. It is clear from agreement that Rs. 75,000/only were paid at the time of earnest note and it is further envisaged that the plaintiff purchaser would pay by three cheques of Rs. 1,50,000/to the financer of defendant No. 1 who had purchased a car on hire purchase. It also speaks that after total sum of Rs. 3,00,000/is paid the seller would execute the sale deed of 2 acres of land out of 7 acres in favour of purchaser plaintiff. It is next agreed that there after the purchaser plaintiff would pay the amount every 3 months to the seller by installments. I now propose to deal with the first part i. e. whether defendants No. 1 to 3 were bound to execute the sale deed of 2 acres and whether Rs. 3,00,000/were paid before such claim for execution could be laid by the plaintiff.
13. Here two undisputed facts need to be noted. The first is payment of Rs. 75,000/and second non encashment of three cheques worth Rs. 1,50,000/. I must say that the pleadings of the plaintiff are very cryptic, ambiguous and inconsistent. I would reproduce here the relevant pleadings in paras 1, 2 and 3 of the plaint:
1. 'That, the defendant No. 1, 2 and 3 are the owners of the agricultural land situated at Mouza Warora, admeasuring 6.86 Hect. R. P. H. No. 41 City Survey No. 91, Tahsil and District Nagpur (Rural). It is further submitted that vide agreement dated 17.5.2001 the plaintiff agreed to purchase and the defendant agreed to sale the aforesaid the 2.80 Hect. R (7 acres) out of the aforesaid land to the plaintiff for a total consideration of Rs. 9,62,500/i. e. Rs. 1,37,500/per acre. The said agreement to sale is duly notarised before the Notary Public. It is submitted that till date the plaintiff has paid Rs. 3,00,000/to the defendant No. 1 to 3.
2. It is respectfully submitted that it was decided between the plaintiff and the defendant No. 1 to 3 that after the payment of Rs. 3,00,000/the defendants with immediately execute sale deed of 2 acres of land in favour of the plaintiff. It is further submitted that as it is already stated above the plaintiff has paid Rs. 2,30,000/to the defendant No. 1 to 3 and performed the part of contract from his side.
3. It is respectfully submitted that after receiving the amount of Rs. 2,06,000/the defendant 1 to 3 were bound to execute sale deed of 2 acres in favour of the plaintiff, but the defendant No. 1 to 3 did not execute the sale deed of 2 acres land in favour of the plaintiff within the decided period. The intentions of the defendant No. 1 to 3 were always of mischievous nature it is further submitted that as per the agreement between the plaintiff and defendant 1 to 3 the sale deed of the total 7 acres land was to be executed on or before 17.11.2002. it is submitted that without giving any notice to the plaintiff nor intimation the defendant No. 1 to 3 executed sale deed in respect of 2.00 Hect. R. (5 acres) in favour of defendant No. 4 and 5 by a registered sale deed dated 13.07.2001 which is duly registered in the office of Sub Registrar Nagpur at Sr. No. 263. It was a clear cheating by the defendant No. 1 to 3 with the plaintiff. The plaintiff also published a paper notice in daily news paper 'NAVRASHTRA' informing the public not to enter into any agreement in respect of the aforesaid property. The plaintiff also sent a legal notice to the defendant No. 1 to 3. Inspite of that the defendant No. 1 to 3 sold 5 acres of land to the defendant No. 4 and 5. The plaintiff was not at all aware of the said fact. Later on it was known to the plaintiff that the 5 acres land sold to the defendant No. 4 and 5 was sold by defendant No. 4 and 5 to the defendant No. 6 and 7 by a registered sale deed dated 07.02.2002 which is duly registered sale deed dated 07.02.2002 which is duly registered in the office of the sub registrar Nagpur at Sr. No. 304. The plaintiff was not all aware of the series of sale deeds executed by the defendants. The plaintiff was under a sweet impression that the defendant No. 1 to 3 will execute sale deed of total 7 acres of land in favour of the plaintiff.
In para 1 it is alleged without giving details that a sum of Rs. 3,00,000/is paid. To my mind it was absolutely necessary for the plaintiff to have given the particulars and details of payment of Rs. 3,00,000/since the agreement of sale saya that upon payment of Rs. 3,00,000/the obligation to execute the sale deed would arise, and the agreement does not disclose payment of Rs. 3,00,000/. Further to my mind no amount of evidence can be looked into unless such particulars are given. Let us otherwise see what is the evidence. Defendants 1 to 3 definitely disputed having received Rs. 3,00,000/and specifically the pleading in para 11 of the Written Statement that they refused to execute the sale deed since plaintiff failed to show the receipts of payment of Rs. 3,00,000/to them. Plaintiff in his affidavit in evidence gives details of the payment as follows:
i) On the date of Agreement Rs. 75,000/(17.05.2001)ii) On 18.05.2001 Rs. 5,000/iii) On 05.06.2001 Rs. 2,500/iv) On 07.06.2001 Rs. 15,700/v) On 07.06.2001 Rs. 1,500/vi) On 12.06.2001 Rs. 3,292/vii) Towards repayment ofVehicle loan of defendant 1. Rs. 1,09,000/viii) On 10.07.2001 Rs. 88,010/--------------Total Rs. 3,00,002/--------------
Out of this, it seems that the defendants 1 to 3 dispute last two sums i. e. Rs. 1,09,000/and Rs. 88,010/. We have already seen that it is not disputed that the cheques of Rs. 1,50,000/issued by plaintiff as detailed in agreement Ex. 35 were never encashed. Those cheques are on record at Ex. 74 to 76. Obviously the only amount paid under the agreement is Rs. 75000/only. We have therefore to look into the evidence of payment of Rs. 2.25 lacs. Defendants 1 to 3 dispute receipt of Rs. 1,09,000/and Rs. 88,010/. Obviously they do not dispute rest. Therefore from Rs. 3,00,000/Rs. 1,09,000/and Rs. 88,010/will have to be deducted. If that is deducted the total sum admittedly paid by plaintiff to defendants 1 to 3 comes to Rs. 1,02,990/.
14. We have seen that the plaintiff was entitled to sale deed on payment of Rs. 3,00,000/. In this regard the evidence of plaintiff Manikrao Ex. 32 needs to be looked into. In para 5 of the affidavit he specifically says that sale deed of 2 acres of land was written on 02.07.2001 but defendants 1 to 3 did not appear before Sub Registrar for execution. We have seen that defendants 1 to 3 in para 11 of their Written Statement do not dispute this proposition but in fact affirm. Thus it is clear that plaintiff ought to show payment of Rs. 3,00,000/on or before 02.07.2001. The pleadings of defendants 1 to 3 in para ii show that they did not execute the sale deed or registered the sale deed for want of evidence from plaintiff of payment of Rs. 3,00,000/to them. Thus on that date there was a dispute of above payment of Rs. 3,00,000/to the defendants. The fact that defendants had signed the sale deed to be executed in favour of plaintiff for 2 acres but refused to register it clearly goes to show that they had shown their willingness to abide all the conditions and had shown their bonafides. It was justified on their part to call upon the plaintiff to produce the receipts showing payment of Rs. 3,00,000/. Plaintiff did not and to my mind could not have produced such evidence before the defendants as the plea is false. From affidavit of P. W. 1 Manikrao the plaintiff, it is absolutely clear that he had not paid sum of Rs. 88,010/on 02.07.2001 at all. In his affidavit the date of payment of Rs. 88,010/is shown to be 10.07.2001. If this sum of Rs. 88,010/is paid alledgely on 10.07.01 it was certainly not paid on 02.07.01. Thus on 02.07.01 certainly sum of Rs. 3,00,000/was not paid. D. W. 1 Prakash was shown the receipt dated 10.07.01 Ex. 43. In his cross examination he denies his signature on the same. Shri Dharmadhikari learned Senior Counsel submits that in examination in chief D. W. 1 Prakash did not say a word about receipt of Rs. 88,010/being forged. To my mind Prakash need not say so in examination in chief as the plaintiff has not pleaded in the plaint that he has paid Rs. 88,010/on a particular date to Prakash. In fact I would say that Prakash was taken by surprise when he was shown that receipt. Shri Dharmadhikari learned Senior Counsel had contended that the Court has a right to reach to a conclusion as to whether signature on the said receipt Ex. 43 is that of Prakash taking into consideration the conduct and circumstances if no expert evidence is available. He relied on a decision reported in Shri Baru Ram v. Smt. Prasanni and Ors. : AIR 1959 Supreme Court 93;
Mr. Doabia fairly conceded that there was no legal evidence on this point; but his argument was that from the other finding of fact recorded by the High Court it would be legitimate to infer that the appellant had made the said signature. In our opinion this contention is wholly untenable. It must be borne in mind that the allegation against the appellant is that he has committed a corrupt practice and a finding against him on, the point would involve serious consequences. In such a case, it would b e difficult to hold that merely from the findings recorded by the High Court it would be legitimate to infer that the appellant had signed the form and had in fact appointed Puran Singh as his polling agent. Mr. Doabia argues that it is not always absolutely necessary to examine an expert or to lead other evidence to prove handwriting. It would be possible and legal, he contends, to prove the handwriting of a person from circumstantial evidence. Section 67 of the Indian Evidence Act (1 of 1872) provides inter alia that if a document is alleged to be signed by any person the signature must be proved to be in his handwriting. Section 45 and 47 of the said Act prescribed the method in which such signature can be proved. Under Section 45, the opinion of the handwriting experts is relevant while under Section 47 the opinion of any person acquainted with the handwriting of the handwriting experts is relevant while under Section 47 the opinion of any person acquainted with the handwriting of the person who is alleged to have signed the document is admissible. The explanation to the section explains when a person can be said to be acquainted with the handwriting of another person. Thus, there can be no doubt as to the manner in which the alleged signature of the appellant could and should have been proved; but even assuming that the signature of the appellant can be legally held to be proved on circumstantial evidence the principle which governs the appreciation of such circumstantial evidence in cases of this kind cannot be ignored. It is only if the court is satisfied that the circumstantial evidence irresistibly leads to the inference that the appellant must have signed the form that the court can legitimately reach such a conclusion. In out opinion, it is impossible to accede to Mr. Doabia's argument that the facts held proved in the High Court inevitably lead to its final conclusion that the appellant had in fact signed the form. It is clear that in reaching this conclusion the High Court did not properly appreciate the fact that there was no legal evidence on the point and that the other acts found by it cannot even reasonably support the case for respondent 1. We must accordingly reverse the finding of the High Court and hold that respondent 1 has failed to prove that the appellant had committed a corrupt practice under Section 123(7)(c) of the Act.
In the instant case the circumstances certainly suggest that the document must not have been signed by Prakash. In fact due to want of pleadings it was incumbent on the part of plaintiff to have examined an expert to prove that it bears the signature of Prakash. In a decision reported in Thiruvengadam Pillai v. Navaneethmmal and Anr. : (2008)4 Supreme Court Cases 530. Supreme Court observed as under:
19. The trial court had analysed the evidence properly and had dismissed the suit by giving cogent reasons. The first appellate court reversed it by wrongly placing onus on the defendants. Its observation that when the execution of an unregistered document put forth by the plaintiff was denied by the defendants, it was for the defendants to establish that the document was forged or concocted, is not sound proposition. The first appellate court proceeded on the basis that it is for the party who asserts something to prove that thing; and as the defendants alleged that the agreement was forced, it was for them to prove it. But the first appellate court lost sight of the fact that the party who propounds the document will have to prove it. In this case the plaintiff came to court alleging that the first defendant had executed an agreement of sale in his favour. The first defendant having denied it, the burden was on the plaintiff to prove that the first defendant had executed the agreement and not on the first defendant to prove the negative. The issues also placed the burden on the plaintiff to prove the document to be true. No doubt, the plaintiff attempted to discharge his burden by examining himself as also scribe and one of the attesting witnesses. But the various circumstances enumerated by the trial court and the High Court referred to earlier, when taken together rightly create a doubt about the genuineness of the agreement and dislodge the effect of the evidence of PWs 1 to 3. We are therefore of the view that the decision of the High Court, reversing the decision of the first appellate court, does not call for interference.
It is thus clear that plaintiff has failed to show payment of Rs. 88,010/at all, much less prior to 02.07.2001. Plaintiff inserts a notice Ex. 45 in newspaper on 03.07.2001 i. e. the next day of refusal of registration of sale deed. It is alleged in it that the defendants 1 to 3 are avoiding execution of the sale deed. It is in this background that it is difficult to accept the theory that plaintiff paid Rs. 88,010/to the defendants vide Ex. 43 on 10.07.2001. It is difficult to accept further that defendants would accept Rs. 88,010/on 10.07.2001 when plaintiff had inserted the notice on 03.07.2001 and they had refused to execute the sale deed. In view of this the decision in : AIR 1959 Supreme Court 93 has no bearing on the case at hand.
15. Next payment is of Rs. 1,09,000/. Surprisingly the plaintiff does not give the date of this payment of Rs. 1,09,000/in the pleadings. In affidavit however date of such payment in para 3(f) is given as 29.06.2001. If this sum was paid on 29.06.01 at a time it must be assumed that such a large sum is paid under a receipt. It must therefore further be assumed that it was available with the plaintiff on 29.06.2001. However if it was so available on 29.06.2001, there was no difficulty in showing it to the defendants 1 to 3 on 02.07.2001. Existence of this receipt on 29.06.01 is therefore certainly doubtful. The reason is to be found in the evidence of financer itself. The receipt Ex. 63 said to be issued by P. W. 2 Subhashchandra shows that it is a single receipt of Rs. 1,09,000/paid on same day. In the evidence the witness says that this payment was made to him from time to time. If it was made from time to time it was made in installments and therefore there ought to be separate receipt of each repayment made to him and not one consolidated receipt. Witness admits that he maintains accounts. If he maintains books of accounts it was still very easy for him to produce the account books showing the entries of the repayment and their particular dates. Now this Ex. 63 speaks of repayment of Rs. 1,09,000/towards full and final satisfaction of loan of defendant No. 1. It is dated 29.06.2001. This receipt shows that it is towards full and final settlement of the account. It must be said that from that date the account was completely closed. However this is also proved to be false. Ex. 77 is the other receipt of repayment of Rs. 39,500/by defendant No. 1 to P. W. 2 Subhashchandra. It has come in cross examination of D. W. 1 Prakash that he paid Rs. 39,500/to financer on 28.02.2002. Now if according to plaintiff he paid Rs. 1,09,000/to financer on 29.06.2001 in full and final settlement of the account the question is, why did the financer accept Rs. 39,500/from defendant and why did defendant No. 1 pay such a large amount. There is no explanation from plaintiff about this. The date of Ex. 43 in respect of Rs. 1,09,000/is therefore not a correct date. In order to show that money was paid in time the receipt was obtained without date and it must have been put according to plaintiff's wish later. I, therefore, conclude that even on 29.06.2001 this amount may not have been paid at the most it may have been paid subsequent thereto. I may say further that it may have been paid subsequent to 13.07.2001 when the defendants 1 to 3 executed sale deed in favour of defendants 4 and 5. It is for these reasons that the plaintiff has kept back best evidence in the form of books of accounts of witness No. 2 Subhashchandra. He could have very well called him along with books of accounts since Subhashchandra admits maintenance of said accounts. I, therefore, find that as on 02.07.2001 and 13.07.2001 neither amount of Rs. 88,010/nor amount of Rs. 1,09,000/was paid. There is also plaintiff's own admission of having paid Rs. 2,30,000/only by 16.11.2002. In reply to the notice sent by defendants plaintiff says that he has paid Rs. 2,30,000/only. This supports the theory that sum of Rs. 88,010/was never paid. Receipt dated 10.07.2001 Ex. 43 therefore really appears to be a forged one. In any case therefore prior to 02.07.2001 plaintiff had not paid Rs. 3,00,000/. It is therefore the plaintiff who committed breach. A person who raises false plea for the payment of consideration could not be said to be ever ready to perform his part of the contract . It is so held in a decision reported in Ram Kumar Agarwal and Anr. v. Thawar Das (Dead) Through Lrs. : (1999)7 Supreme Court Cases 303. Supreme Court observed as under:
It is statutorily provided by Section 16(c) of the Specific Relief Act, 1963 that to succeed in a suit for specific performance of a contract the plaintiff shall aver and prove that he has performed and has always been ready and willing to perform the essential terms of the contract which were to be performed by him other than the terms the performance of which has been prevented or waived by the defendant. In the facts and circumstances of the case raising of the plea by Thawar Das that on 19.09.1966 there was afresh agreement between the parties and he had paid Rs. 2000 to Phool Chand associated with the positive finding arrived at by the two courts below which finding has not been upset by the High Court that the plea was false and was sought to be substantiated by producing a false and fabricated document makes the situation worse for Thawar Das. A person who falsely alleges to have paid Rs. 2000 and also attempts at proving the plea at the stage of the trial cannot be said to have been ever ready and willing to pay Rs. 7000 which under the contract it was his obligation to pay. The present one is not a case where a plea as to payment was raised bona fide but abandoned at or before the trial for inability to prove.
16. This takes me to consider the question of performance of second part of the contract that is in respect of 5 acres of land sold to defendants 4 and 5. The sale had taken place on 13.07.2001. Shri Dharmadhikari learned Senior Counsel for plaintiff submits that in cases of immoveable property time is never essence of contract and once contract is broken there would never be question of plaintiff being ready or otherwise. He submits that the plaintiff was also therefore not bound to perform his part of the contract and make further payment. Shri Dharmadhikari Learned Senior Counsel has relied on a decision of the Supreme Court in M.M.S. Investments, Madurai And Ors. v. V. Veerppan and Ors. : (2007)9 Supreme Court Cases 660:
Questioning the plea of readiness and willingness is a concept relatable to an agreement. After conveyance the question of readiness and willingness is really not relevant. Therefore, the provision of the Specific Relief Act, 1963 (in short 'the Act') is not applicable. It is to be noted that the decision in Ram Awadh Case relates to a case where there was only an agreement. After the conveyance, the only question to be adjudicated is whether the purchaser was a bona fide purchaser for value without notice. In the present case the only issue that can be adjudicated is whether the appellants were bona fide purchasers for value without notice. The question whether the appellants were ready and willing is really of no consequence. In Ram Awadh Case the question of the effect of a completed sale was not there. Therefore, that decision cannot have any application so far as the present case is concerned. Once there is a conveyance the concept would be different and the primary relief could be only cancellation.
Supreme Court says that after the conveyance is executed question of readiness and willingness is irrelevant. Shri Bhangde learned Senior Counsel appearing for defendants 6 and 7 submits that question can also be raised by subsequent purchasers also. The Supreme Court observed in a decision reported in Azhar Sultana v. B. Rajamani and Ors. : 2009(3) SCALE 159 as under:
18. It is also a well settled principle of law that not only the original vendor but also a subsequent purchaser would be entitled to raise a contention that the plaintiff was not ready and willing to perform his part of contract. [See Ram Awadh (Dead) by L.Rs. and Ors. v. Achhaibar Dubey and Anr. : (2000) 2 SCC 428 para 6].
20. If the plaintiff has failed to establish that she had all along been ready and willing to perform her part of contract, in our opinion, it would not be necessary to enter into the question as to whether the defendant Nos. 5 and 6 were bona fide subsequent purchasers for value without notice or not.
In yet another decision of Larger Bench reported in Jawahar Lal Wadhwa And Anr. v. Haripada Chakroberty : (1989) 1 Supreme Court Cases 76. Supreme Court observed as follows:
4. It is a common ground that the sum of Rs. 105 per month referred to in Clause 2(b) of the said agreement was paid by the respondent only up to January 1976 and that this payment covered up to 23 instalments and more than 200 instalments were remaining unpaid. Mr. Bhandare pointed out that it was contended by the appellants before the arbitrator that, although the agreement for sale between the parties was not registered and might not convey any interest to appellant 1 in the property, the appellants had been put in possession of the said land and construction pursuant to the said agreement since September 1973, as appears from the agreement of sale, and in view of this, appellants were entitled to retain possession under the protection afforded by Section 53A of the Transfer of Property Act, 1882. he drew our attention to the following statements contained in the award of the learned arbitrator:
The respondent who has been in possession of the property since September 1973 as would appear from the first agreement for sale, claimed that his possession was protected under Section 53A of the Transfer of Property Act....Section 53A affords protection to a transferee on certain conditions, one of which is that 'the transferee has performed or is willing to perform his part of contract'. Under the agreement of sale, the respondent was required to pay the claimant a monthly sum of Rs. 105 to enable the latter to pay the instalments in discharge of the house building loan. From the receipts filed it appears that the respondent paid only up to January 1976 which covered 23 instalments only and more than 100 instalments remained to be paid. There is no valid reasons why he should have failed to carry out his obligation under the contract. Thus it cannot be said that the respondent had performed or was willing to perform his part of the contract. Therefore, the respondent was not entitled to retain possession of the disputed property beyond January 1976.
It was submitted by Mr. Bhandare that these statements clearly disclose an error apparent on the face of the award. It is pointed out by him that, prior to February 1976, the respondent by his advocate's notice dated January 16, 1976 had repudiated the said agreement for sale by contending in his notice that it had been procured by fraud, undue influence and coercion practised by appellant 1 and it was submitted that the said repudiation was wrongful and in view thereof appellant 1 was absolved from his obligation to make any further payment of Rs. 105 per month or to continue to be ready and willing to perform the agreement. It was submitted by him that the aforestated statements contained in the award ran counter to the settled position in law and disclosed a clear error of law on the fact of the award,. He drew out attention the decision of this Court in International Contractors Ltd. v. Prasanta Kumar Sur. In that case the appellant had purchased the property in dispute from the respondent but soon thereafter there was n agreement for reconveyance of the property to the respondent within a period of two years for almost the same value for which it was sold. Before the expiry of the stipulated period the respondent entered into correspondence with the appellant asking for the completion of the agreed reconveyance and intimating that the purchase money was ready to be paid but after some further correspondence the appellant's solicitors on his behalf repudiated the agreement for reconveyance. The respondent then did not tender the price agreed to be paid and filed a suit for specific performance. The suit was dismissed by the trial court on the ground that the respondent had not paid the money. The High Court reversed the decision and decreed the suit. On an appeal to this Court it was held that as the appellant had totally repudiated the contract for reconveyance and had failed to perform his part of the contract it was open to the respondent to sue for its enforcement and the High Court was right in holding that respondent was entitled to a decree for specific performance. In our view, Mr. Bhandare may be right in contending that this decision does show that it has been held b y this Court that in certain circumstances once a party to a contract has repudiated a contract it is not necessary for the other party to tender the amount payable under the contract in the manner provided in the contract in order to successfully claim the specific performance of the contract. The decision, however, nowhere lays down that where one party to a contract repudiates the contract the other party to the contract which claims specific performance of the contract is absolved from his obligation to show that he was ready and willing to perform the contract. Mr. Bhandare's argument really is to the effect that the respondent wrongly repudiated the contract by his said letter dated January 16, 1976 before all the mutual obligations under the contract had been carried out, that is to say, he committed an anticipatory breach of the contract and in view of this, appellant 1 was absolved from carrying out his remaining obligations under the contract and could claim specific performance of the same even though he failed to carry out his remaining obligations under the contract and might have failed to show his readiness and willingness to perform the contract. In our view, this argument cannot be accepted. It is settled in law that where a party to a contract commits an anticipatory breach as putting an end to the contract and sue for damages, but in that event he cannot ask for specific performance. The other option open to the other party, namely, the aggrieved party, is that he may choose to keep the contract alive till the time for performance and claim specific performance but, in that event, he cannot claim specific performance of the contract unless he shows his readiness and willingness to perform the contract. The decision of this Court in International Contractors Limited v. Prasanta Kumar Sur, property analysed only lays down that in certain circumstances it is not necessary for the party complaining of an anticipatory breach of contract by the other party to offer to perform his remaining obligations under the contract in order to show his readiness and willingness to perform the contract and claim specified performance of the said contract. Mr. Bhandare also referred to the decision of the Andhra Pradesh High Court in Makineni Nagayya V Makineni Bapamma. We do not consider it necessary to refer to this decision as it does not carry the case of the appellants any further. The ratio of the said decision in no way runs counter to the said position in law set out above.
To my mind it would be necessary to look into readiness of the plaintiff as the subsequent purchaser steps into the shoes of the vendor and since such plea would have been available to the vendor, such a plea would also be available to the subsequent purchaser. If the decision in Jawahar Lal Wadhwa's case by Larger Bench is seen it would be clear that even when a party alleges wrong repudiation he has a choice to keep the contract alive till the time of performance and claim performance. But in that case he will also have to show his readiness and willingness to perform his part of the contract throughout or he has other choice of putting contract to an end and claim damages.
17. To my mind the controversy in this appeal can be resolved by applying the decision in Jawahar Lal Wadhwa's case.
18. The agreement of sale Ex. 35 says that the contract is to be concluded and sale deed executed within 1 1/2 years from the date of contract i.e. 17.05.2001. The period of 1 1/2 year comes to an end by 18.11.2002. The plaintiff i. e. the purchaser had agreed to pay every three months some amount to the seller i. e. defendants 1 to 3. It is not disputed that plaintiff did not pay any amount as agreed after the dispute arose over the sale of two acres of land. We have already seen that plaintiff has failed to establish payment of Rs. 88,010/and Rs. 1,09,000/. He had also not paid any amount which he was supposed to pay every three months. Reluctance of the plaintiff to perform his part of the contract is evident from two more facts. The first that, he issued notice informing the public that he has a contract with defendants and that the defendants are reluctant to execute the sale deed. This notice is Ex. 44 and is issued on 03.07.2001 i. e. the day after refusal of defendants 1 to 3 to register the sale deed due to the non supply of receipts with regard to the payment. He says in the said notice that he intends to take legal action against defendants 1 to 3. Surprisingly after this notice the plaintiff does not take any action. He neither pays the amount nor informs the defendants 1 to 3 to perform the contract nor does he institute a suit immediately. He just keeps quiet. Defendants 1 to 3 issue notice Ex. 48 the notice first on 15.11.2001 calling upon the plaintiff to be ready to take sale deed and pay money. Until that date i. e. from 03.07.2001 to 16.11.2002 there is no notice to defendants by plaintiff nor he files a suit nor does he send or pay money to the defendants. Even in reply to this notice of defendants the plaintiff does not respond positively. He says in reply that there is a breach of contract and he is taking action against the defendants under Section 420 Indian Penal Code. He does not say a word about his readiness to perform his part of the contract at all and on the other hand gives a threat of criminal action. Further in this reply to the notice dated 16.11.2002 he positively says he paid Rs. 2,30,000/only. Thus his plea of having paid Rs. 3,00,000/prior to 02.11.2001 was patently false. All this conduct of plaintiff certainly goes to show that he was not at all ready to perform. A party has to all the while show his willigness to perform the contract. If plaintiff would have been really ready to take the sale deed he would have reached positively to the notice Ex. 48. I have no hesitation in concluding that plaintiff was not ready to perform the contract.
19. Much ado was made of the plea of defendants that plaintiff and defendants 4 and 5 were known to each other closely and plaintiff introduced defendants 4 and 5 to defendants 1 to 3 which ultimately laid to execution of sale deed in favour of defendants 4 and 5 on 13.07.2001. This may or may not be true. That does not turn the table either way. Ultimately as held in Jawahar Lal Wadhwa's case the plaintiff must prove his readiness and not merely complain of breach. Supreme Court has said that if the plaintiff wants to simply complain of breach, he should be prepared to have damages and not specific performance. For that the other option is readiness to perform the contract. Simply saying on oath that he is ready does not do. It must be established as a fact that all that is required to be performed under contract before a right to seek performance accrues must be performed. To conclude I would say that the amount of Rs. 3,00,000/is not paid though alleged to be paid, (2) the amount required to be paid every month is not paid and (3) there is no positive response to the defendants notice Ex. 48 calling upon the plaintiff to have a sale deed. I find that plaintiff was not ready and willing to perform his part of the contract. In view of the fact that plaintiff raised a false plea of payment of Rs. 3,00,000/, the discretion could not be used in any case in favour of the plaintiff.
20. Shri Dharmadhikari learned Senior Counsel had cited to me the following decisions also.
The first decision is reported in Abdulla Ahmed v. Animendra Kissen Mitter : AIR 1950 Supreme Court 15. This decision was cited for explaining the phrase finding a purchaser. I have found that even if plaintiff had not introduced the defendants 4 and 5 that does not make any difference.
Second decision is reported in The Godhra Electricity Co. Ltd. and Anr. v. The State of Gujrat and Anr. : (1975) 1 Supreme Court Cases 199. This decision was cited for a proposition as to the help which the Court can take of extrinsic factor in interpreting the document.
The third decision is reported in Nagindas Ramdas v. Dalpatram Ichharam alias Brijram and Ors. : (1974)1 Supreme Court Cases 242, which deals with the value of the admissions under Section 58 of the Evidence Act. There is no doubt that admissions as contemplated by Section 58 could be made foundation of the rights of the parties and carry more value than evidentiary admissions.
21. In view of my findings, I proceed to allow both the appeals and set aside the judgment and decree passed by the trial Court. In the circumstances the appeals are allowed. The judgment and decree passed by the trial Court are set aside. The suit is dismissed with costs. The appellants are entitled to costs from respondent No. 1.