Dabholkar N.V., J.
1. Original plaintiffs challenged the judgment and order dated 1-2-1992 passed by 3rd Additional District Judge, Jalgaon in Civil Appeal No. 443/1984 on his file, By this decision, the learned District Judge allowed the appeal of original defendant No. 4 challenging the judgment and order dated 18-10-1984 passed by Civil Judge (Junior Division), Erandol in R.C.S. No. 160/1979, which was filed by present appellant. To speak in brief, the trial Court had decreed the suit of plaintiffs for specific performance. The learned District Judge has converted the decree to only refund of earnest.
2. The facts of the litigation required to be noted are as follows :-
Plaintiff Rajjak and deceased Hussain were true brothers. Rajjak approached the Court against legal heirs of Hussain i.e. widow and three daughters (including two married daughters) with a suit for specific performance. It was contended that gut No. 124 of Bambori, Tq. Erandol, Dist. Jalgaon was the ancestral property. Plaintiff and brother Hussain had partitioned it and Hussain was having western portion. By an agreement of sale (registered), Hussain agreed to sell his western portion admeasuring 6 acres, 10 gunthas to plaintiff for a consideration of Rs. 15,000/-, by accepting an earnest of Rs. 5,000/-. Balance consideration was to be paid and possession was to be transferred at the time of execution of sale deed, which was to take effect after proposed vendor obtained permission for the transfer as required under Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947 (BPF & CH Act for the sake of brevity) because consolidation scheme had become applicable. On 1-7-1976, proposed vendor executed possession receipt and delivered possession of the land in favour of proposed purchaser. Subsequently, as a result of amendment of BPF & CH Act, permission became unnecessary and hence plaintiff sent a notice dated 30-11-1977 inviting legal heirs of Hussain to accept the balance consideration and execute a sale deed in his favour. Since the defendants did not comply, suit for specific performance was filed.
3. Defendant No. 4 alone contested the suit who is presently respondent No. 1. By written statement filed by all four defendants, it was contended that the documents was executed by way of security towards loan advanced by Rajjak to Hussain and it was assured by Rajjak that he would cancel the agreement of sale on payment. She also pleaded that Hussain was providing some capital share in the business of son of plaintiff and enjoying the share in the profits. After settlement of accounts between Hussain and son of plaintiff namely Abdul Mutalik, plaintiff had assured to accept an amount of Rs. 4,000/- and cancel the agreement of sale. The possession receipt dated 1-7-1976 is challenged to be bogus and forged. It is claimed that, it was never executed by deceased Sk. Hussain.
4. The trial Court held that deceased Hussain had entered into an agreement of sale and transaction was not by way of security as pleaded by defendants. It also rejected the contention that after settlement of accounts between defendant Hussain and son of plaintiff namely Abdul Mutalik, plaintiff had assured to cancel the agreement by accepting Rs. 4,000/-. It was held that the suit for specific performance was within limitation as prescribed by Article 54 of the Limitation Act. Finding no reasons for denying the specific performance, as discussed in para 12 of his judgment, the trial Court decreed the suit to fullest extent by grant of decree of specific performance thereby requiring defendants to execute a registered sale deed of the suit land in favour of plaintiffs.
During the course of the suit, plaintiff Rajjak had expired and his legal representatives have come on record. Since defendants had challenged the signature of deceased Hussain on the possession receipt, agreement of sale and possession receipt were sent for expert examination. Five signatures on the agreement of sale were treated as admitted signatures. (This is because execution of agreement of sale by deceased Hussain was not disputed by defendants, they only disputed the nature of transaction). Handwriting Expert from the Office of Chief State Examiner of Documents, C.I.D. (M.S), Pune recorded the opinion that disputed signature on the possession receipt was not that of the author who had put signatures on the agreement of sale. The trial Court has ignored this opinion for the reasons discussed in paragraphs 7 to 9 of the judgment. The sum and substance is that there were ample circumstances indicating delivery of possession and therefore, opinion of Handwriting Expert that possession receipt was not signed by Sk. Hussain could not be sustained.
5. The learned District Judge has confirmed the finding that there was an agreement of sale and the document was not executed by way of security. However, for the reasons discussed in paragraphs 10 to 12 of his judgment, the first Appellate Court has arrived at a conclusion that, the trial Judge was not justified in granting specific performance. He has, therefore, reduced the decree in favour of plaintiffs to return of earnest of Rs. 5,000/-. He has also denied the compensation of Rs. 10,00/- which was alternate relief prayed by the plaintiffs, by observing that plaintiffs are adequately compensated, since they are in possession and cultivation of the land.
It can be said that the learned District Judge has denied the specific performance for 3 reasons- (i) proposed vendor was ill and in tragic condition when the agreement was executed, (ii) proposed vendee had prepared forged possession receipt and (iii) having enjoyed the possession of the land since 1979, plaintiffs were adequately compensated.
6. Second appeal was admitted by this Court vide order dated 28-2-1992 with one word order 'Admit' and hence I had called upon learned Advocate Shri. U.S. Malte to constitute substantial question of law before entering into his arguments. According to Shri Malte, this Court is required to consider this appeal on the basis of following substantial question of law-
'The lower Appellate Court interfered with the discretion exercised by the trial Court under Section 20 of the Specific Relief Act which is unwarranted by law, and hence the decision of the District Court is required to be reviewed in second appeal and decision of trial Court is required to be restored.'
7. Heard learned Counsel for the respective parties.
Learned Advocate Shri V.T. Chaudhary for the respondent has tried to advance an argument that issues regarding nature of document, whether the same is agreement of sale or a document by way of security and whether suit is barred by limitation : can be considered to be answered in favour of his client in the second appeal and he desires to be heard on those aspects.
8. Eventually there is concurrent finding of both lower courts that deceased Hussain had executed agreement of sale in favour of deceased Rajjak and the transaction was genuine agreement of sale and not a document by way of security. The question as to what is the nature of document would be a question of fact based upon facts and surrounding circumstances, at the point of time the document was executed. The same cannot be substantial question of law and hence Order XLI, Rule 22 read with Rule 33 of C.P.C. tried to be relied upon by Shri. V.T. Chaudhary cannot come to his rescue, for enabling him to persuade this Court to reopen the issue regarding nature of transaction.
9. So far as issue of limitation is concerned, the same is considered by the trial Court in the light of Article 54 of the Limitation Act. As can be seen from agreement of sale (Exh. 78), there was no time limit fixed for execution of sale deed. It was to be executed after permission under BPF & CH Act was obtained by proposed vendor. Thus time was not of the essence of the contract and period of limitation, therefore, will have to be reckoned from the date the plaintiff has noticed that performance is refused. Consequently, the period of limitation will begin to run from the time plaintiff felt that his notice (Exh. 71) was not being complied with. In any case, after the suit notice dated 30-11-1977 suit filed on 3-10-1979 was within the period of limitation of 3 years as prescribed by Article 54 of the Limitation Act, 1963. The finding of the trial Court that suit is not barred by limitation, even if it is considered on merits, is required to be confirmed. If we refer to the judgment of the lower Appeal Court, the issued of limitation does not appear to have been reagitated by original defendants/appellants before the District Court.
10. Thus, it can be said that, this Court is required to consider a limited question for the purpose of adjudication of this appeal. 'Whether District Court was justified in interfering with the discretionary relief of specific performance granted by the trial Court?'
Relevant provisions of the Specific Relief Act, 1963 to the extent applicable may usefully be reproduced hereinbelow for ready reference.
'Section 10. Cases in which specific performance of contract enforceable. - Except as otherwise provided in this Chapter, the specific performance of any contract may, in the discretion of the Court, be enforced -
(a) when there exists no standard for ascertaining the actual damage caused by the non-performance of the act agreed to be done; or
(b) when the act agreed to be done is such that compensation in money for its non-performance would not, afford adequate relief.
Explanation.- Unless and until the contrary is proved, the Court shall presume-
(i) that the breach of a contract to transfer immovable property cannot be adequately relieved by compensation in money; and
(ii) ....'
(Emphasis supplied)
From the portion under lined, it is evident that there is legal presumption, although rebuttable, that breach of a contract to transfer immovable property cannot be adequately compensated in money. Consequently once a contract to transfer immovable property is proved, the rule should be grant of specific performance and denial of the same may be an exception. It must also be said that it would be burden of proposed vendor (defendants in this case) to demonstrate that the breach can be adequately compensated.
'Section 14. Contracts not specifically enforceable :- (1) The following contracts cannot be specifically enforced, namely;
(a) a contract for the non-performance of which compensation in money is an adequate relief:
(b) a contract which runs into such minute or numerous details or which is so dependant on the personal qualification or volition of the parties, or otherwise from its nature is such, that the Court cannot enforce specific performance of its material terms;
(c) a contract which is in its nature determinable :
(d) a contract, the performance of which involves the performance of a continuous duty which the Court cannot supervise.
(2)....
(3)....'
Sub-section (3) contains specific cases wherein Court can enforce specific performance even in the cases falling under Clauses (a) to (d) of Sub-section (1). For the purpose of our matter, we may not be required to refer to exception to Sub-section 1(a) to (d) as carved out in Sub-section (3).
Section 20 lays down that the jurisdiction to decree the specific performance is discretionary and the Court is not bound to grant such relief, merely because it is lawful to do so. However, the discretion is not arbitratory not sound and reasonable and guided by judicial principles. Sub-section (2) illustrates cases, when specific performance may be refused i.e. when specific performance gives plaintiff an unfair advantage over the defendant or it involves hardship on the defendant, which he did not foresee or enforcement of the specific performance is inequitable, under the circumstances in which defendant entered into contract. The explanation to Section 20(i) clarifies that inadequacy of consideration or fact that contract is onerous to defendant or improvident in nature, cannot be deemed to constitute an unfair advantage as contemplated by Clause (a) or hardship as referred in Clause (b) of said Sub-section (2).
11. As rightly argued by learned Advocate Shri Malte by referring to written statement, defendant No. 4 who contested the matter tooth and nail, has not pleaded any of the grounds upon which first Appellate Court was pleased to deny the specific performance and convert the decree passed by the trial Court into the decree for refund of consideration. The written statement makes out only two grounds that transaction was in the nature of security and that possession receipt was false and forged document. The plaintiff has come to Court with a case for specific performance and has prayed in the alternative for refund of earnest and compensation. The defendant has not pleaded anything in the written statement as to who the specific performance may be denied and as to why no compensation should be paid if it passes a decree only for return of earnest.
12. A party gets right to lead evidence on a particular point, only when it pleads the case to that effect. A party cannot be allowed to take other side by surprise and start leading evidence on the point which is not pleaded. Strictly speaking, upon taking into consideration the written statement filed (Exh. 18), defendants have not pleaded anything that would attract either Section 14(1)(a) to (c) of Specific Relief Act, 1963.
13. On reference to depositions, defendant No. 4 has examined herself at Exh. 90 and Handwriting Expert at Exh. 97. The deposition and more particularly examination in chief is so cryptic, that defendant No. 4 has not asserted her contention regarding possession receipt being a forged document. She has not pleaded that Hussain (proposed vendor) was ill, bed-ridden or financially so pressed that he was compelled to execute agreement of sale or to agree to sell the property. She has not deposed about inadequacy of consideration, much less adduced any evidence about the same. The Appellate Court observed that deceased Hussain did not appear to be holding any other agricultural land. Because Abdul Mutalik P.W. No. 1 had admitted that Hussain used to be ill and he was ill 8 months prior to his death, lower Appellate Court has arrived at a conclusion that deceased was under tragic circumstances, when he entered into an agreement of sale pertaining to his only piece of land to his brother Rajjak. The learned Judge observed that
'Therefore though defendant Khubabi has not deposed in her evidence that the defendants would suffer hardship, facts and circumstances clearly show that if the decree for specific performance is granted, the legal heirs of the defendant would suffer hardship and they would be landless.'
14. Thus it is evident that the learned District Judge was conscious of the fact that he was making a gift to the defendants, without pleading and proof supporting the same on the record. The learned District Judge lost sight of the fact that out of 4 legal heirs, 2 were married daughters. 3rd daughter was of marriageable age and 4th legal heir was the widow. Admission of Abdul Mutalik referred by learned District Judge showed that Hussain was ill 8 months prior to his death. The date of death according to Khubabi was 12-10-1977. Thus Hussain was ill from February, 1977 or so. The agreement of sale and possession receipt were executed in June and July, 1976 i.e. about 8 months prior to illness. While considering the denial of specific performance on any of the parameters contained in Section 20(2) of Specific Relief Act, the Court has to consider hardship with reference to circumstances existing at the time of the contract. Even upon considering the discussion of reasons by the District Judge, he appears to have lost sight of the fact that by admission of Mutalik, illness and tragic condition described by the Judge does not relate back to the date of execution of agreement. I am afraid, this ground was thus not available for the District Court in refusing the specific performance.
15. By virtue of Explanation 1 to Section 20(2), inadequacy of consideration, onerous nature of the contract or contract being improvident are not sufficient to hold that it gives any unfair advantage to plaintiff over the defendant or that it involves some hardship on the defendant. Thus merely because by specific performance legal heirs of Hussain are likely to be landless is not the ground to attract Sub-section (2) of Section 20 of Specific Relief Act. The hardship contemplated by Sub-section (2) should be of such nature which defendant could not foresee. Though Hussain agreed to sell the land, it cannot be said that he could not foresee himself and his family becoming landless.
16. Thus either illness of Hussain or the family becoming landless was certainly not the ground available to the learned District Judge to interfere with the discretionary relief granted by the trial Court and deny the specific performance.
17. The learned trial Judge observed in para No. 7 of his judgment that Handwriting Expert had recorded his opinion based on sound reasons. He has ignored the opinion by relying upon other pieces of evidence and circumstances available on record to arrive at a conclusion that possession receipt must have been executed by deceased Hussain and possession must have been delivered pursuant to the agreement and possession receipt. The learned District Judge has taken a diagonally opposite view. He has accepted opinion of the Handwriting Expert and according to him, the documents do not indicate delivery of possession. By applying theory of converse proof and touchstone of probability, and even without referring to any document or oral evidence; it can be said that probability of possession having been delivered pursuant to agreement of sale and possession receipt is quite stronger. Because if the possession is not amicably transferred by Hussain to Rajjak, the only inference is that Rajjak took the possession forcibly. If that be so, there is nothing on record in the form of evidence regarding subsequent conduct of the Hussain or his legal representatives, in retaliation of such forcible dispossession. They would have certainly come out with suit of injunction on slightest disturbance and suit for possession, if the possession was lost against their wish.
As rightly argued by learned Advocate Shri Malte by relying upon the observation of the Supreme Court in the matter of Shashi Kumar Banerjee v. Subodh Kumar Banerjee), : AIR1964SC529 , expert's evidence as to handwriting is opinion evidence and it can rarely take the place of substantive evidence. Before acting on such evidence it is usual to see, if it is corroborated either by clear direct evidence or by circumstantial evidence. The learned trial Court carried out an exercise of considering other circumstances on record, which spoke in favour of delivery of possession and therefore, against document being forged possession receipt.
The evidence regarding handwriting can be arranged in following order on the strength of its reliability.
1. Author himself stating that it is his handwriting or signature,
2. Person who has seen the author doing particular writing or signature, stating that particular person has ascribed document or signature,
3. Person who is acquainted with handwriting of purpose author, and
4. Expert's opinion.
Thus expert opinion is the weakest possible evidence regarding proof of handwriting or signature. The plaintiff had come with oral evidence of Abdul Mutalik son of deceased Rajjak and Ahsan Ali, who claimed to be present and an attesting witness respectively, for the possession receipt. Evidence of both these witnesses is evidence of second highest category in the list of 4 categories indicated hereinabove. Thus the learned District Judge has accepted the opinion of handwriting Expert against best possible direct evidence regarding signature of deceased Hussain on the possession receipt.
18. Learned Counsel for the appellants relied upon the same 4 documents which were referred to by the trial Court for arriving at conclusion that those indicated peaceful delivery of possession in favour of proposed purchaser. In the notice (Exh. 70) dated 5-11-77 issued by Khubabi, it is stated that the learnt about Rajjak having entered into an agreement to purchase gut No. 124 from her father Hussain. The notice only warns proposed purchaser that he should not complete the transaction by ignoring her. Certainly in this document, there is nothing about delivery of possession. Public notice published in the newspaper 'Batamidar' dated 20-10-1977 likewise cautions other legal representatives of her father that they should not alienate the property. Both these documents do not talk anything about delivery of possession.
At Exh. 92 is a certified copy of depositions before Tahsildar during the course of enquiry for the purpose of mutation on the basis of application by Rajjak. In this statement Khubabi has narrated that Rajjak is cultivating land since agreement. Exh. 92 is the certified copy of depositions of applicant and Khubabi. The learned District Judge refused to read these contents, because those were contradicted by Khubabi.
19. These three documents may not be helpful to plaintiffs to establish delivery of possession in favour of Hussain, but observation of learned District Judge about contents in the plaint of RCS No. 100/81 (Exh. 75) filed by Khubabi that these documents do not speak about delivery of possession by Hussain to Rajjak are against the record. Khubabi, during her cross-examination admits to have filed this suit. But she added that he has not instructed the contents in the plaint to her lawyer. The addition for the purpose of escape from the statement in the plaint is required to be referred for rejection. In the plaint para 4, it is categorically stated property described in plaint para A i.e. gut No. 124 deceased Hussain has sold his interest in the said land by agreement of sale dated 28-06-1976 and since then defendant No. 4 is in possession and enjoyment. Defendant No. 4 in the said suit is present plaintiff Rajjak. Further contents in the said para narrate that deceased has accepted an earnest of Rs. 5,000/- and on the basis of agreement, defendant No. 4 has taken possession of the land from deceased Hussain. The contents in the plaint of RCS 100/81 are sufficient to demonstrate that the possession was delivered to Rajjak by deceased Hussain pursuant to agreement of sale and it was not forcibly acquired by the proposed purchaser.
There are extracts of revenue record field as evidence, which indicate cultivation of the subject land by Rajjak at least from cultivation year 1977-78 (Exh. 46). This is because revenue authorities took cognizance of the agreement by mutation Entry No. 1401, dated 18-10-1977.
The learned District Judge expressed doubt about receipt because signature as attesting witness purported to be of husband of defendant No. 4 is 'Maseedkhan' and not 'Majeedkhan'. In fact such an argument is creation of thinking of District Judge himself. Neither it is pleaded in written statement nor it is deposed by Khubabi that her husband had not attested the possession receipt or that name of her husband is 'Majeedkhan' and not 'Maseedkhan'. Attesting witness Abdul Mutalik P.W. No. 1 deposed on oath that husband of defendant No. 1 had attested the possession receipt. This version is not challenged even by a suggestion, in the cross-examination. Attesting witness Ahsan Ali narrated that other attesting witness i.e. Maseedkhan has attested the possession receipt in his presence. In the record of the trial Court, there is an affidavit filed by this attesting witness at Exh. 39. Even in this vernacular affidavit, his name is written as 'Maseedkhan' and the contents of the affidavit make a quite interesting reading. He admits that possession receipt is attested by him, but alleges that plaintiff obtained signature without allowing him to read the possession receipt. This indicates that possession receipt was already written when his attesting signature was obtained.
Discussion so far is sufficient to indicate that learned District Judge was at error in arriving at conclusion that there was no evidence regarding delivery of possession and that the possession receipt was doubtful because of difference in the spelling and pronunciation of name of the attesting witness.
20. Learned Advocate Shri V.T. Choudhary has tried to place reliance upon application dated 18-10-1977 filed alongwith Exh. 20 (certified copy) which was an application by Rajjak for taking a note of agreement of sale in the revenue record. Here, he relied upon the contents of the application to the effect that possession of the field was to be taken at the time of registration of the sale deed. Although the contents to this effect are apparently in conflict with possession receipt, those are kept in harmony with the agreement of sale. The contents of agreement of sale clearly indicate that parties were aware of consolidation scheme having been made applicable to the land in question. Section 27, Sub-section (b) of the BPF & CH Act created a bar against transfer of any land in respect of which noticed under Section 15(A) regarding application of the scheme was issued. The agreement of sale also contained a condition that vendor should obtain permission for transfer from consolidation contains a falsehood so that application for permission to transfer may not be rejected. The contents in the application are kept in harmony with the agreement and it can be said that it was aimed at suppressing fact of transfer of land, from the revenue authorities under apprehension that the permission may be refused. In the plaint itself, it is pleaded that suit notice was issued after it was realised that amendment in the provisions of the said Act did not require permission for transfer. Thus, unexhibited document relied upon by the learned Counsel for the respondents does not lead us to inference that possession was not peacefully transferred pursuant to agreement.
21. In the light of reasons discussed above, it must be said that learned District Judge erred in reversing the finding of the trial Court inspite of the opinion of the Handwriting Expert that surrounding circumstances supported the fact of delivery of possession and therefore, possession receipt was a reliable piece of evidence. A harsh finding recorded by the District Judge and relied upon by him for the purpose of denying specific performance that plaintiff has indulged into preparing forged possession receipt is required to be quashed and set aside.
22. Once, first two out of the three reasons, for which District Court felt that specific performance ought not to have been granted are found unsustainable, third reason is not required to be gone into, because plaintiffs shall be entitled to specific performance when the first two grounds are held nonexistent and therefore, insufficient to deny the specific performance.
At the cost of repetition, it may be stated that defendants have neither pleaded nor proved any of the circumstances which would attract either Section 14(1)(a) to (d) or Section 20(2)(a) to (c) of the Specific Relief Act, 1963, and therefore, presumption as contained in Explanation (i) to Section 10 of the said Act should stand in favour of the plaintiffs thereby entitling the plaintiffs for specific performance of the agreement.
23. For the reasons discussed hereinabove, it must be said that the trial Court had correctly used the discretion in granting specific performance in favour of plaintiffs and the District. Judge was not justified in interfering with the same. The reasons relied upon by the District Judge for interfering are non-existent.
24. The appeal is, therefore, allowed. The judgement and order passed by the 3rd Additional District Judge, Jalgaon on 1-2-1992 in Civil Appeal No. 443/1984 is set aside and the judgement and order dated 18-10-1984 passed by Civil Judge (Junior Division), Erandol, in R.C.S. No. 160/79 is restored.
25. Respondent No. 1 shall bear her own cost and pay the cost of appellants of all three stages of the litigation. Rest of the respondents shall bear their own costs throughout.