Arun Mishra, J.
1. Plaintiff/appellant's suit for specific performance of contract of sale dt. 4-1-92 has been dismissed by the trial Court on the ground that the execution of agreement has not been proved. The suit was dismissed with cost. It was held that while getting two sale-deeds executed on 4-1-92 on the stamp in question signature of defendant Annapurna Devi was obtained and subsequently the agreement has been typed over it. Aggrieved by dismissal of the suit, present appeal has been filed.
2. Plaintiff alleged in the plaint that the defendant agreed to sell agricultural land of one acre comprised in Survey No. 852/1 on 4-1-92 for a consideration of Rs. 2,30,000/-. An amount of Rs. 80,000/- was paid on 4-1-92 as earnest money and the sale deed was to be executed by 10th April 1992, on receiving a consideration of Rs. 1,50,000/-, the remaining amount was agreed to be paid before the registrar at the time of registration of the sale deed. The plaintiff requested the defendant to receive the balance of consideration, but, she delayed the execution of the sale deed. Ultimately, registered notice dt. 8-4-1992 was served, by registered post to execute the sale deed by 10th April 1992. Telegraphic notice was also sent. Newspaper publication was also made in Dainik Lokswar dt. 10-4-92, but, in spite of publication and the notice the defendant did not execute the sale deed. In paragraph 6 of the plaint it wassubmitted that the plaintiff was ready to get the sale deed registered on payment of the balance of consideration. However, in para 8 of the plaint, it was mentioned that the plaintiff was not having the money arrangement with respect to Court-fees of Rs. 15,530/-. Hence, the suit was being filed on stamp of Rs. 10/- and remaining Court-fees shall be paid within two months. The suit was filed on 9-5-92. On 21-12-1992 the plaintiff further amended the plaint in order to plead that the plaintiff was involved in sale and purchase of the land and the agreement was executed in the presence of two witnesses. No fraud has been played by the plaintiff over the defendant. It was further pleaded that the plaintiff was ready to pay the balance money.
3. In the written statement the defendant contended that no agreement dt. 4-1 -92 was ever executed by her. No earnest money of Rs. 80,000/-was received. It was contended that the plaintiff was a land dealer and used to earn money by way of commission in the land deal. The plaintiff had arranged for sale of 4000 sq. ft. of land out of the said very survey Number to one Kaspad Mohri and Jagat Narayan by two different sale deeds, both were executed on 4-1-92. These deeds were finalized through the plaintiff. Documents of sale deeds were got prepared by the plaintiff. Signatures of the defendant were obtained by the plaintiff on the two sale deeds executed in favour of Kaspad Mohri and Jagat Narayan on 4-1-92 at several places. The defendant was educated up to middle class only and was not keeping well. She signed over the stamp paper which was placed before her and paid commission to the plaintiff with respect to the said two sale deeds at the rate of Rs. 2/- per sq. ft. No agreement was ever entered into for the sale. For the first time, on receipt of the notice dt. 8-4-92 the defendant could know that by playing fraud plaintiff has prepared a forged document agreement and has obtained her signatures. No agreement was ever entered into. Immediately on receipt of the notice on coming to know of the fraud, the defendant has lodged report with the police at civil lines police station, Bilaspur against the plaintiff, on which an offence under Sections 420, 467 and 468, I.P.C. was registered against the plaintiff. The reply of the notice was also sent. Telegraphic notice dt. 9-4-92 was not received. It was further contended that the land was worth Rs. 14,04,000/-, as out of the saidvery survey number on 4-1-92 two sale-deeds were executed in favour of Kaspad Mohri and Jagat Narayan at the rate of Rs. 27/- per sq. ft. On both the sale deeds the plaintiff was also an attesting witness. Thus, total 4000 sq. ft. land was sold in the sum of Rs. 1,08,000/-. After the sale in the remaining land there were 26 plots and cost of which is Rs. 14,04,000/-which could not be sold for a sum of Rs. 2,30,000/- as the face value of them was Rs. 14,04,000/- at the rate of Rs. 27/- per sq. ft. Plaintiff has been defrauded as she is a widow and aged woman. The written statement was filed on 29-9-92.
4. The plaintiff has placed on record agreement as Ex. P/1. Receipt of sending notice by registered post is Ex. P/2, acknowledgment is Ex. P/3 and copy of the notice served is Ex. P/4. Plaintiff examined himself as PW 1 and has examined witness in support of his case; Sudesh Kumar (PW 2). Defendant has examined herself as DW 1 arid examined witness Jagatnarayan as DW 2, in whose favour she has executed the sale deed on 4-1-92.
5. In the present appeal, learned counsel appearing for the plaintiff appellant has submitted that the suit for specific performance should have been decreed. The execution of the agreement has been proved. The defendant has admitted the signature over the agreement. Notice sent was not replied. The suit was filed promptly. The plaintiff has made payment of Rs. 80,000/- and has proved his readiness and willingness as required under the law.
6. Learned counsel for the defendant has submitted that the agreement is forged. Trial Court has committed no error in dismissing the suit. The judgment and decree call for no interference.
7. It is not disputed in the case that the plaintiff is a commission agent and deals with the land. It is also not disputed that through the plaintiff two deals were finalized with Kaspad Mohri and Jagatnarayan and sale deeds were executed on 4-1 -92 through the plaintiff. It is also not disputed that the plaintiff was an attesting witness over those sale deeds. It is also not disputed that the plaintiff had purchased the stamp-papers for execution of those two sale deeds. Sale-deed was executed in favour of Jagatnarayan by Smt. Annapurna defendant, which is on record as Ex. D/1C. That sale deed indicates that stamps for it were purchased on 4-1-92and Smt. Annapurna herself had received the stamps from stamp vendor Hiranand which is mentioned on the back of each stamp paper, on the endorsement of the stamp vendor, each of the stamp bears the signatures of its recipients. The stamp for so-called agreement Ex. P/1 was also purchased on 4-1-92. It was of a denomination of Rs. 10/-. Its recipient was not Smt. Annapurna. But, it was purchased by plaintiff Sirumal. It may further be seen that in the agreement on the said stamp it was not mentioned that for what purpose the stamp was purchased, whereas it was mentioned on the stamp purchased for the purpose of sale deed that they were purchased for execution of sale deed by Smt. Annapurna in favour of Jagatnarayan. When the stamp was purchased in the name of Annapurna for the agreement and she had gone herself for obtaining the stamp with respect to the sale-deed executed on the same date the stamp vendor was Hiranand from whom stamps for the sale deeds were purchased, whereas stamp of Rs. 10/- has been purchased from Santosh Kumar Kesarwani, different stamp vendor. If Smt. Annapurna was intending to execute an agreement on the said date she could have purchased the stamps from Hiranand stamp vendor on the same very date. Even if doubtful circumstance of purchase of stamp by Sirumal and not by Annapurna is discarded, there is other intrinsic evidence afforded by the agreement itself as to its nature. The agreement has been typed subsequent to obtaining the signatures of Smt. Annapurna over the stamp. The agreement runs into only one page on stamp paper. In the upper 2/3rd half recital are there in the agreement. The lower 1/3rd half contains the map of survey No. 852/1, Directions North, south, east, west and whose land is situated which side. The signature of Annapurna Awasthy is about one inch above from the bottom. After recital portion was concluded by mentioning 'BAY SHUDA BHOOMI KA VIVRAN NIMNAUSAR HAI:' (Description of the land sold is as follows). Thereafter in the same line after semi colour and dash 'RADHAMAL KANHAIYALAL UTTAMCHAND'S LAND' is mentioned and above it 'NORTH' has been written by type without leaving even single space. This word 'NORTH' has been typed one line above where the recital words 'NIMNAUSAR HAI' (Following description) and word 'SOUTH' has been mentioned onthe typed line delineating boundary and below word 'SOUTH' (DAKSHIN)' land of Teerath Ram Itwari is shown in the map and on the words in between Teerath Ram Itwari* the signature of Annapurna Awasthy is present. The spelling of word 'RNA' is clearly suppressed by the typing word 'REE'. Thus, the very agreement contains intrisic evidence in itself that less space was left after recital and above the signature. Hence, the map has been adjusted anyhow or somehow. It goes to show that the signature was obtained over the blank stamp paper and thereafter the agreement has been typed. The typing pattern itself makes it clear without any further investigation in it. Further, it may be seen that the word 'WITNESS' (GAWAH) is mentioned on the left in bottom side in Hindi 'GAWAH' is written below it. There is signature of Rudal, which has been managed with great difficulty in the portion and further it has been mentioned in the writing of the witness that in his presence Rs. 80,000/- were received as earnest money. The another signature in 'B' to 'B' portion below it of Sudesh -- Arjundas, Shanker Nagar Bilaspur, which mentions in his presence Rs. 80,000/-were received. The writing pattern of both the witnesses and signatures are in so much narrow portion which shows that attempt was clearly made to prepare the agreement subsequently. It is not the formal agreement prepared first, thereafter signatures are put. It is apparent from intrisic evidence mentioned hereinabove as afforded by agreement itself on the face of it that signature of Smt. Annapurna Awasthy was obtained first on the blank paper and thereafter in the space left everything has been typed to be managed anyhow or somehow. It shows the fabricated nature of the agreement itself. Not only this intrisic evidence is the only evidence in the case, but, further evidence is provided in the deposition of the witnesses examined in the case which are considered hereinafter.
8. It may further be seen that suspicious circumstance attached to the agreement is that on the same day the plaintiff has sold the land out of the said survey number. Said survey number was having 28 plots, two were sold on 4-1-92, on which date agreement was also executed. Sale deeds were @ Rs. 27/- per sq. ft. and plaintiff has acted as commission agent in the land deal and the signatures were put by defendant on several stamp papers. Defendant Annapurna is awidow and old woman of 60 years. It was very easy to obtain her signatures on the blank stamp paper along with sale-deed stamp. The value of the land on 4-1-92 was Rs. 27/- per sq. ft., and one acre land which comprises of 26 plots would fetch a price of Rs. 14,04,400/-, not less than that. Thus, the defendant prudently could not enter into an agreement to sell it for a paltry sum of Rs. 2,30,000/- at the rate of about Rs. 4/- per sq. ft. This circumstance also makes it doubtful that any such agreement could at all be entered into conscionably by the plaintiff.
9. Learned counsel for the appellant submitted that the notice dt. 8-4-92 was not replied to by the defendant. However, the plaintiff has admitted in para 1 of his deposition in examination-in-chief that the defendant has sent a reply of notice, not only this, in the written statement also it was mentioned that the notice was replied to. In view of the plaintiffs admission in examination-in-chief, nothing further need be said about submission of the plaintiff counsel. Further, it may be seen that the defendant has not only replied to the notice, but, has taken active steps of lodging a report with the police, for which a case under Sections 420, 467 and 468, I.P.C. was registered. Learned counsel for the appellant plaintiff submitted that the first information report has not been placed on record, as such fact is not proved. Again counsel submission is fallacious as the plaintiff has admitted in paragraph 6 of his deposition in cross-examination that it was right that Annapurna had lodged a report in civil lines Police Station and a case under Sections 420, 467 and 468, I.P.C. was registered against him. It is thereafter the suit was filed without making the payment of stamp duty required as Court-fees. The plaintiff in paragraph 8 of the plaint pleaded that he was not having requisite money of Rs. 15,530/- for payment of Court-fees. It appears that the suit was filed in order to protect himself from the criminal case without payment of Court-fees and the Court-fees was paid on 20-6-92. Plaintiffs averment further goes to show that when he was not having the money for payment of Court-fees even his mention in the notice dt. 8-4-92 that he was ready to pay remaining consideration of Rs. 1,50,000/- and the sale deed should be executed, falls down even payment of Rs. 80,000/- as earnest money has been negated by the trial Court. As agreement was found not to be executed,but, subsequently manufactured document by the plaintiff.
10. It may be seen that burden of proof lies heavily on a person enjoying good faith and active confidence under the provision of Section 111 of the Evidence Act. Defendant is a widow and aged woman and was having confidence over the plaintiff and had depended upon the plaintiff for sale of her land to Kaspad Mohri and Jagatnarayan.
In the cases of burden of proving good faith where one party is in a position of active confidence of another the Courts of equity have invariably placed the burden of sustaining the transaction upon the party benefitted by it, requiring him to show that it was of an unobjectionable character and one which it ought not to disturb. The principle is of universal application and must not be regarded as a technical rule of English Law, as held by Privy Council in case of DemeraraB. C. v. LouisaHubbard, 1923 AC 673 PC. In the case where PARDANASHIN lady has executed a deed, it was held essential by the Privy Council in case of Thakurji v. Ram Dei, AIR 1930 PC 139 it is for vendor that he should prove the bona fide nature of the transaction.
In the present case the defendant was a widow and the plaintiff had acted as her agent and enjoyed confidence. Thus, the burden lies heavily on him to prove the bona fide nature of the transaction. Even if the burden of proof is discarded then also the evidence as stand clearly makes out that the plaintiff has not been able to prove the due execution of the agreement and passing of the consideration.
11. Plaintiff has stated that he was not involved in the land dealing as commission agent, which goes against his amended plaint as para 2(ba) he has himself pleaded in the plaint that he was involved in sale and purchase of the land. He has further deposed that he was not aware whether Smt. Annapurna had sold piece of land out of the same land. He himself was an attesting witness to the sale deed executed on 4-1 -92. Thus, it is clear that the plaintiff is speaking lie and has no respect to the truth. He was not simply an attesting witness, but, the land deal was settled through him, which has been deposed to by Jagatnarayan (DW 2) who had purchased the land on 4-1-92 through the plaintiff and has clearly deposed that he had purchased the landthrough the plaintiff Sirumal from defendant Smt. Annapurna and he was not known to Annapurna from earlier point of time. Kaspad Mohri had also purchased the land along with him. No sale deed was executed in the house of Smt. Annapurna, but, they had gone to sub-registrar office. Plaintiff has not paid any money to Annapurna, they were accompanying Sirumal, Smt. Annapurna on the said date, right from morning at 10 a.m. up to 2:30 p.m. He has further deposed that Smt. Annapurna, as a matter of fact, had paid certain money to the plaintiff which was by way of commission. Sale deed has been produced as Ex. D/1. Its copy was placed on record as Ex. DIG. It may further be seen that this witness was cross-examined on behalf of the plaintiff, but, no cross-examination has been made to the fact that the plaintiff did not settle the deal between Jagatnarayan and Annapurna. No cross-examination has been made that Sirumal had not signed the sale deed Ex. D/1 as a witness. Matter of cross-examination is not a mere empty formality, but, one is required to put its own case in cross-examination otherwise a version of the witness has to be taken as unchallenged. The matter has been considered in number of decisions, that it is the duty to put one's own version to opponent in cross-examination otherwise deposition of a witness cannot be discredited. It was held in AIR 1945 Nag 60 (Maroti Bansi Teli v. Radhabai) as under (at page 64):
'The usual practice at the Bar is to accept matters which are not challenged either in the pleadings or in cross-examination as fully established once a person enters the box and swears to it. If the rule were otherwise parties would be obliged to encumber the record with a mass of material which in the result might prove wholly unnecessary. The practice therefore is when it is intended to challenge a point which is not specifically challenged in the pleadings to cross-examine to it formally the first time it is raised in a witness's deposition. The other side is then placed upon its guard and is given notice that it must establish the point as fully as it can. When that is not done it means that the point is not challenged and can be accepted.'
In AIR 1958 Punj 440 ( Chuni Lal Dwarka Nath v. Hartford Fire Insurance Co. Ltd.), it has been held as under (at page 444):
'It is a well-established rule of evidence that a party should put to each of his oppo-nent's witnesses so much of his case as concerns that particular witness. If no such questions are put, the Courts presume that the witness' account has been accepted. If it is intended to suggest that a witness was not speaking the truth upon a particular point, his attention must first be directed to the fact by cross-examination so that he may have an opportunity of giving an explanation.'
In AIR 1950 Nag 83 (Kuwarlal Amritlal v. Rekhlal Koduram), it has been held as under (at page 84) :
'When attestation is not specifically challenged and when a witness is not cross-examined regarding the details of the attestation it is sufficient for him to say that the document was attested by the other witness and himself. That is enough to prove the attestation. The law will then assume that when the witness swears that it was attested the witness means by that, 'attested according to the forms required by law.' If the other side wants to challenge that statement it is their duty, quite apart from raising it in the pleadings, to cross-examine the witness along those lines. Where that is not done the party proving attestation is entitled to assume that the mode of attestation was not being attacked and therefore that it was enough for his witness merely formally to prove attestation.'
12. Thus, it has to be accepted that the plaintiff had settled the deal of sale deeds executed by defendant and further there is nothing to disbelieve that even commission was paid to the plaintiff by the defendant to settle the land deal.
13. Smt. Annapurna Awasthy (DW1) has also deposed that Sirumal was known to her. He had introduced two purchasers to her. Sirumal had settled the deeds, which sale deeds of 2000 sq. ft. executed for a sum of Rs. 54,000/- each. She has denied that Sirumal had paid any consideration to her. She has further deposed that commission was settled by Sirumal at the rate of Rs. 2/-per sq. ft. which was paid by her. She has further deposed that the documents were not read over to her, she had not read those documents- She studied up to 2nd class and only knows how to sign. She has specifically denied that she had executed any agreement for Rs. 2,30,000/- on the said date, She has further deposed that on receipt of notice she came to know that the plaintiff had de-frauded her. She had lodged report as she was frightened by the notice and the fraud committed over her. Her deposition is not only natural, but, reliable. She has further deposed that she was not keeping well. She has stated that she was not educated up to middle, but, up to second class. She has further deposed that her signatures may have been obtained while obtaining the signatures on other papers. She has deposed that she had not read the sale deed which was executed in favour of Kaspad Moharl and Jagat Narayan. She has further deposed that the plaintiff referred her as mother and she referred him to be her son. She cannot speak lie against the plaintiff. Thus, it is apparent that the plaintiff was enjoying the confidence of the woman who was a widow and has obtained the advantage of the situation and has obtained the signature on a blank paper as is the finding recorded by the trial Court in this regard which appears to be proper. Further more, the plaintiff in her own deposition in cross-examination had to admit his signatures on the sale deeds executed in favour of Kaspad Mohari and Jagat Narayan as an attesting witness. He has tried to submit that he was not aware to whom the land was sold, whereas the evidence shows that the plaintiff was well aware and he had intreduced the said persons to the defendant. Again the plaintiff is speaking lie on material point and has further tried to submit that he was not aware that the land was sold for how much consideration per sq. ft. He could not deny the suggestion that value of the land according to the agreement was Rs. 14,04,000/- and volunteered to state that the said rate is a Govt. rate of the said area. But it is clear that, as the plaintiff himself has admitted the rate of the land per sq. ft. was Rs. 27/-, he has tried to wriggle out of inadequacy of consideration of an agreement by suggesting that It was a Govt. rate. As a matter of fact it was a rate on which the deal was struck on the same very day finalized and sale deed executed by defendant in favour of Kaspad Mohari and Jagatnarayan. In para 8 the plaintiff has further submitted that in order to arrange Rs. 80,000/- on 4-1-92 he had pledged ornament to Nirmaldas and Parumal, He obtained Rs. 45,000/- from Nirmaldas and from Parumal Rs. 20,000/-. But, the said transaction was oral, both were his relation. Both persons have not been examined in support of the case that he had obtainedRs. 45,000/- from Nirmaldas or Rs. 20,000/-from Parumal by pledging the ornament with near relation, Parumal was SAMDHI and Nirmaldas was also close relative. Plaintiff further submitted that he had returned the money, but, how much and when he could not state. The way in which he has deposed in paragraph 9 shows that he is wholly unreliable witness and his deposition has only to be rejected. He submitted in the next paragraph 10 of his deposition that he had paid the amount in small instalments. He has further submitted when he served notice he was not having Rs. 1.5 lac, but, he could have arranged money. He could have sold his house in order to arrange money. He could not even approximate the amount for registry of Rs. 1.5 lac. He further deposed that he had made no attempt to ascertain how much expenses would be incurred in getting the documents registered. Thus, it is clear that the plaintiff had no arrangement for fund when he served notice Ex. P/4. The notice was served by making false averment that the sale deed should be executed on 10-4-92, as a matter of fact no consideration was paid even by way of earnest money.
14. It may further be seen that Sudesh Kumar one of the attesting witnesses, out of two star witness of the agreement, has been examined as PW 2. The witness has stated that at about 11 a.m. they had reached to the house of the defendant, when the defendant had asked for bringing one stamp. Thereafter the witness along with other witness Indal and plaintiff Sirumal went to purchase the stamps. Thereafter defendant had put the signature. In the entire execution of agreement about one hour and 15 minutes were consumed. Witness is falsified by the fact that on the said date he has not mentioned presence of Jagat Narayan and Kaspad Mohri. Total black out has been given by Sudesh Kumar to the transaction of sale which in fact had taken place at the same time, not on the different time. Plaintiff has not stated even the time of transaction of agreement and that has been kept in total dark and what has been stated by Sudesh Kumar is contradicted by DW 2 Jagat Narayan who had purchased the said land and the plaintiff Sirumal was the attesting witness to the said transaction. Thus, it is apparent that the agreement is shrouded in mystery and it was not executed by the defendant. Her signature appears to havebeen obtained at the time of execution of sale deed. Thus, so many doubtful circumstances attached to the agreement and its execution has not been proved as required. Another attesting witness of the agreement Indal has not been examined by the plaintiff. The agreement itself as discussed hereinabove contains evidence of its being typed subsequently.
15. The other submissions raised by counsel for the plaintiff appellant that the plaintiff was ready and willing to perform his part of contract and is still ready and willing, are not required to be considered in view of the aforesaid finding. However, as the submissions have been made in order to do justice to them, it may be seen that the plaintiff has pleaded in the plaint that he was ready and willing to pay the balance of consideration under the agreement, such pleading does not amount to readiness and willingness to perform one part of contract as generally plaintiff was ready and willing to perform his part under the agreement. Agreement specifically enjoins the duty upon the plaintiff that he has to bear the stamp duty and registration charges also. The plaintiff has not pleaded his readiness and willingness to meet the stamp duty and registration charges, which was incumbent upon him under the provisions of Section 29(1)(c) of the Stamp Act and Section 55(1)(d) of the Transfer of Property Act.
16. In the instant case, readiness and willingness is notmade out. The plaintiff has failed to prove that he had earnest money of RS. 80,000/- or paid it. Moreover, he has further failed to prove that he was having balance money of Rs. 1,50,000/- which according to him was the amount due, in view of his admission that he was not having the money when he served the notice and could have arranged it by sale of his house, shows that the plaintiff was neither ready nor willing to purchase the property at any point of time. He has Just fabricated the documents taking the advantage of confidence of defendant which she reposed.
17. Thus, the appeal is without merit and is dismissed with costs. The appellant plaintiff shall pay the cost to the defendant which is quantified at Rs. 5,000/-.