IN THE HIGH COURT OF ALLAHABAD
Second Appeal No. 64 of 2001
Decided On: 02.07.2018
Hon’ble Judges/Coram:Siddhartha Varma, J.
Citation: AIR 2019 ALL 242
1. Heard Sri Aran Kumar Mishra, learned counsel for the appellant and Sri Y.K. Sinha, Sri Sudhanshu Pandey and Sri Sanjay Maurya, learned counsel for the respondents This is plaintiffs’ Second Appeal against the Judgment and Decree dated 21.11.2000, passed by Sri Kripa Shankar, Ist Additional District Judge (Court No. 1), Gorakhpur in Civil Appeal No. 17/1999, whereby appeal has been allowed and Judgment and Decree dated 12.02.1999, passed by Sri Alakh Narain, IInd Additional Civil Judge (Senior Division), Gorakhpur has been set aside and Original Suit No. 477 of 1991 (Smt. Shanti Mishra v. Samuel) has been dismissed with costs.
2. The plaintiff instituted an Original Suit No. 477 of 1991, praying for a decree of specific performance of contract of sale.
3. Plaintiff’s case is that arazi No. 1143, area 83 decimal, situated in Mohalla Basaratpur, Tappa, Kasba, Pargana Haveli, District Gorakhpur was owned by defendant; that defendant had incurred some loan and for repaying the same, he entered into an agreement to sell for total consideration of Rs. 10,000/- and paid Rs. 3,000/- in advance to the plaintiff; that remaining amount of Rs. 2,000/- was to be paid at the time of registration of agreement before the Registrar and it was agreed that after the permission from the competent authority, to be obtained by the defendant, plaintiff will execute sale deed within 3 years after taking the balance sale consideration; that plaintiff regularly enquired from defendant about permission of competent authority for sale, but defendant stated that he will himself intimate her about the same; that plaintiff came to know that defendant is trying to sell the land for higher price and therefore she increased the sale consideration to Rs. 45,000/- and paid Rs. 22,696/-; that plaintiff paid further amount of Rs. 8,000/- on 18.04.1987 of which defendant executed a receipt in presence of witnesses; that defendant was to get Rs. 15,000/- only from plaintiff and after stating his problem for payment of fees of her daughter, he further took amount of Rs. 11,000/- from plaintiff; that plaintiff had been ready and willing to execute the sale deed but defendant was unwilling for the same and on account of not refunding of excess amount of Rs. 11,696/- by defendant, suit was instituted by plaintiff.
4. Defendant filed written statement denying plaint averments and stated that he used to be ill; that he went to cancer hospital for treatment, where he met Chandra Bhan Mishra and he helped defendant in getting appointment with doctor and medicines; that Chandra Bhan Mishra brought him to Kutchery for getting agreement to sell of arazi No. 150 in favour of his wife and defendant executed sale deed of the same in her favour; that he does not knows Shanti Mishra wife of Pateshwari Prasad and only knows Smt. Kanti Devi wife of Chandra Bhan Mishra; that Smt. Shanti Devi wants to purchase the disputed land by fraud; that he never executed any agreement to sell in favour of Shanti Devi nor he affixed any thumb impression on the agreement to sell; that disputed agreement to sell is based on impersonation and is fraudulent document; that a distant relative of plaintiff, Digvijay Nath, Lekhpal in order to grab arazi No. 1143, area 83 decimal filed a case under Section 229-B of U.P.Z.A. & L.R. Act before the Parganadhikari and when he lost the case, he has got the suit instituted for harassing the defendant, which deserves to be dismissed.
5. Plaintiff filed her replication stating that defendant has executed different agreements to sell in favour of plaintiff and Kanti Devi on different dates regarding different plot numbers. The signature of the defendant is on the agreement to sell executed in her favour and Digvijay Nath Mishra is neither her relative nor she knows him.
6. On the basis of pleadings of parties, learned trial court framed following issues,
(1). Whether plaintiff is entitled to get sale deed executed from defendant after taking balance sale consideration of Rs. 5,000/- regarding arazi No. 1143, area 83 decimal, situated in Mauza Basaratpur Tappa, Qasba, Pargana Haveli, Tehsil Sadar, District Gorakhpur?
(2). Whether suit of plaintiff is barred by time?
(3). Whether suit of plaintiff is undervalued and court fees paid is insufficient?
(4). Whether defendant did not executed agreement to sell in favour of plaintiff?
(5). Whether agreement to sell dated 19.11.1982 is result of forgery and fabrication and its time period has come to an end? If yes, then its effect?
(6). Whether suit of plaintiff is barred by Section 52 of Transfer of Property Act?
(7). Whether plaintiff is entitled to any other relief?
(8). Whether this court does not have jurisdiction to hear this suit?
(9). Whether plaintiff has paid Rs. 56,696/- to defendant for sale of disputed land in her favour and defendant is bound to execute sale deed in favour of plaintiff, if yes, then its effect?
(10). Whether valuation of suit is still low and court fees paid is insufficient?
(11). Whether this court lacks pecuniary jurisdiction to hear this suit ?
7. The learned trial court decided issue Nos. 1, 4, 5 and 9 together and held that defendant entered into agreement of sell for sale of arazi No. 1143 to plaintiff. Agreement to sell dated 19.12.1982 is not result of any fraud or fabrication. Plaintiff paid Rs. 56,696/- to defendant for sale of disputed land and defendant is bound to execute sale deed in her favour. Issue No. 2 was decided holding that suit is not barred by time. Issue Nos. 3 and 10 were decided in negative, thereby holding that court fees paid is sufficient. Issue No. 6 was decided holding that there is no issue of Section-52 of Transfer of Property Act involved. Issue No. 11 regarding pecuniary jurisdiction and issue No. 8 regarding jurisdiction to grant decree of specific performance of contract were decided in favour of plaintiff. Issue No. 7 was decided holding that plaintiff is entitled to relief claimed and suit was decreed.
8. Aggrieved by the judgment and decree of trial court, defendant preferred Civil Appeal No. 17 of 1999, wherein no point of determination was framed as per Order 41, Rule 31 C.P.C. and lower appellate court decided the appeal argument-wise.
9. The first point raised and decided by the lower appellate court was regarding readiness and willingness of the plaintiff to get the sale deed executed by the defendant, in view of the fact that the averment of readiness and willingness was not initially made in the plaint. It was by amendment of the plaint, at later stage of suit proceedings, that such an averment was incorporated by way of amendment in the plaint. Even relief clause of the plaint was amendment on 03.11.1998. The lower appellate court came to the conclusion that absence of plea in the plaint initially will not affect the suit, once amendments were allowed and duly incorporated in the plaint and this question is required to be decided on the basis of evidence on record.
10. Second point raised on behalf of defendant before the lower appellate court was regarding the suit of plaintiff being barred by time. Lower appellate court held that the limitation for filing of suit for specific performance of contract starts running from the date of refusal on the part of defendant to get the sale deed executed and last document, paper No. 78-A/1 was executed in 1991 and suit was instituted in 1991, therefore suit was not barred by time.
11. Third question considered by lower appellate court was regarding burden of proof on plaintiff to prove the execution of agreement to sell, paper No. 78-A/1, by defendant and payment of sale consideration to defendant by plaintiff in accordance with details of payment claimed by her. Plaintiff produced paper Nos. 76-A/1,77-A/1 and 78-A/1 as documents evidencing agreement to sell and payment of sale consideration. She produced Moti Lal Verma as P.W. 2 and Markandeya Mishra, P.W.3 and report of Hand Writing Expert, Paper No. 98-Ga, but failed to produce the expert as witness in the suit. Defendant denied the signatures on all the documents evidencing agreement between parties. In the expert report filed by the plaintiff expert had recorded finding that there is difference between the thumb impression on the agreement to sell in dispute and the specimen signature of defendant. The lower appellate court drew adverse inference under Section 114 of Evidence Act, for not producing hand writing expert in evidence because his report was against her interest and case set up by her. Lower appellate court found that in the Register No. 8 of Sub-Registrar, the specimen signature of defendant was there and plaintiff could very well got it tallied with defendant’s signature on agreement to sell, paper No. 76-Ka/1. Lower appellate court further found that in the aforesaid agreement sale consideration is mentioned Rs. 10,000/-. Second document 77-Ka/1 is not registered and area of land is mentioned as 190 x 160 feet, plot No. 1143, area 83 decimal but there is no statement in the document as to why sale consideration has been mentioned as Rs. 45,000/- therein. Further there is no recital therein, as stated by the plaintiff in her plaint, that other persons were offering better price of the land to defendant and therefore she increased sale consideration to Rs. 45,000/-. The lower appellate court disbelieved statement of the plaintiff that she paid Rs. 56,695/- to the defendant.
12. Lower Appellate Court considered the issue of registration of documents, paper Nos. 77-Ka/1 and 78-Ka/1 which were unregistered document and not registered as per Section-17(1)(c) of Registration Act. In the absence of registration evidence of plaintiffs’ witnesses were found to be irrelevant in view of Section 91 of Evidence Act, which clearly provides exclusion of oral evidence when terms of contract are reduced in writing. Cutting in name of marginal witness in agreement to sell, paper No. 76-Ka/1, was noticed by the lower appellate court, it found that below the cutting the name of Samuel, the defendant, has been mentioned and there is no explanation for cutting. Attestation of agreement to sell as per law has not been done. P.W. 2, Moti Lal Verma stated that defendant put his signatures on the agreement to sell before him and thereafter he and the other witness made their signature. Lower appellate court held that since this witness did not state that they appended their signatures before the defendant, therefore, it would not be deemed to be attested. As per Section 3 of the Transfer of Property Act, scribe of sale deed is also required to be examined. Lower Appellate Court therefore held that first document, 76-Ka/1, was not proved as per law and Second and third document, 77-Ka/1 and 78-Ka/1 were also not admissible in evidence being unregistered documents.
13. Finally lower appellate court held that plaintiff claimed that she paid Rs. 11,696/- in excess to the agreed amount of sale consideration to defendant which he may be directed to return to the plaintiff. Lower appellate court found that in the absence of any documentary proof of payment and cogent explanation as to how this amount was paid to defendant by the plaintiff, such a relief cannot be granted to the plaintiff.
14. The Lower Appellate Court allowed the appeal of defendants and dismissed suit of the plaintiff against which the Second Appeal is directed. It was admitted on the following substantial question of Law,
(1). “Whether the first appellate court has committed an error in law in allowing the appeal on the ground that the agreement deed dated 26.10.90 and 18.4.87 were not registered under Section-17 of the Registration Act?
On 15.05.2018, following substantial questions of law were also framed for decision in this Appeal,
(2). Whether by the statement of the attesting witness, Moti Lal Verma, P.W. 2, the execution of the agreement to sell dated 19.12.1982 was proved according to section 68 of the Indian Evidence Act, 1872?
(3). Whether presumption under Section 114 could have been drawn against the plaintiff – appellant for her failure to obtain certain evidence?
15. The second and third substantial question of law were framed in this appeal on the date of hearing and Counsel for the parties stated that they do not want time to prepare the case on new substantial questions of law and are willing to argue the same finally.
16. Learned Counsel for appellant has submitted, regarding the first substantial question of law, that document dated 18.04.1987, contains declaration of a pre-existing agreement to sell dated 19.12.1982 with a modification of the consideration payable under it from Rs. 10,000/- to Rs. 45,000/- whereas the document dated 26.11.1990 was merely a receipt of payment made by the vendor. As no new right in any immovable property was created in any manner by the document executed on 18.04.1987 and 26.11.1990 they were not compulsorily registrable under section 17 of the Registration Act. The documents dated 18.04.1987 and 26.11.1990 marked as paper No. 77Ka/1 and 78Ka/1 even though not registered could be looked into for collateral purposes regarding the existence of earlier agreement to sell dated 19.12.1982. Unregistered document can be admitted in evidence for the collateral purposes as held in paragraph Nos. 5 and 6 of Hamda Ammal v. Avadiappa Pathar and others (1991) 2 All LJ 733 (SC).
5. We cannot accept the contention of learned counsel for the respondent that till registration, the execution of the sale deed does not confer any rights whatsoever on the vendee. Even Section 49 of the Registration Act in its proviso inserted by Section 10 of the Transfer of Property (Amendment) Supplementary Act, 1929, negatives the above contention of the learned counsel. The above provision lays down that an unregistered document affecting immovable property and required by this Act or by the Transfer of Property Act, 1882, to be registered may be received as evidence of a contract in a suit for specific performance under Chapter II of the Specific Relief Act, 1977, or as an evidence of part performance of a contract for the purposes of Section 53-A of the Transfer of Property Act, 1882, or as evidence of any collateral transaction not required to be effected by registered instrument. Thus even an unregistered document can be received as evidence for purposes mentioned in the proviso to Section 49 of the Registration Act.
6. Learned counsel for the respondents also made the submission that even if the sale deed which is executed earlier to attachment before judgment and registered subsequently may be binding on the vendors but it would not affect the rights of such respondent who is a third party, in the sense that he was not a party to the sale deed and he got the right in the property in a court sale having taken place after the passing of final decree in the money suit filed by Avadiappa. In other words the contention is that respondent 5 Shri MSA Kadar got rights in the property in the court sale make in his favour after the decree the passed in favour of Avadiappa in the money suit filed on September 13, 1970. We do not find any force at all in the above submission. The property in question admittedly belonged to the defendant-judgment debtors (vendors) and once it is held that a sale deed had already been executed by them in favour of Hamda Ammal on September 9, 1970 and only its registration remained, then neither the attachment before judgment nor a subsequent attachment or court sale in favour of respondent 5 can confer any title in his favour by preventing the relation back. The fact that the attachment makes document of sale had not been registered until after the attachment makes no difference.
17. In paragraph No. 12 of the Judgment, M/S. A.R.C. Overseas Private Limited v. M/S. Bougainvillea Multiplex and Entertainment Centre Pvt. Ltd. and another, 2008 ACJ (DB) 726 : (2008 (2) All LJ 663).
12. Secondly, last part of Section 49 of the Registration Act, as above, specifically speaks that “as evidence of any collateral transaction not required to be effected by registered instrument”. Therefore, law is crystal clear to that extent. In Mattapalli Chelamayya (dead) by his Legal Representatives and Anr. v. Mattapalli Venkataratnam (dead) by his Legal Representatives and Anr. (MANU/SC/0001/1972 : AIR 1972 SC 1121) the Supreme Court held that it should be noted that Section 49 does not say that the document cannot be received in evidence at all. All that it says the document cannot be received as evidence of any transaction affecting such property. If under the Evidence Act the document is receivable in evidence for a collateral purpose, Section 49 is no bar. This construction of the provision, which was accepted for a long time by the High Courts, has been duly recognized by the amending Act 21 of 1929, which added a proviso to the section. The proviso clearly empowers the Courts to admit any unregistered document as evidence of a collateral transaction not required to be registered. In Satish Chand Makhan and Ors. v. Govardhan Das Byas and Ors. (MANU/SC/0691/1998 : AIR 1984 SC 143), it was held that unregistered lease deed can be admitted in evidence for collateral purpose, invoking proviso to Section 49 of the Registration Act, as terms of lease are not a collateral purpose within its meaning. In Rai Chand Jain v. Miss Chandra Kanta Khosla (MANU/SC/0185/1991 : AIR 1991 SC 744), speaks that it is well settled that unregistered lease executed by both the parties can be looked into for collateral purposes. In Bondai Singh and Ors. v. Nihal Singh and Ors. (MANU/SC/0193/2003 : AIR 2003 SC 1905), it was held that legal position is clear that Petition allowed document like the sale deed, even though not admissible in evidence, can be looked into for collateral purposes. The Court held that the collateral purpose is to be seen on the nature of the possession of the plaintiffs over the suit land. The sale deed in question at least shows that initial possession of the plaintiffs over the suit land was not illegal or unauthorized. Therefore, the undisputed initial possession herein is the guiding factor about validity of the document.
18. His submission is that document or deed if it contains a mere declaration of a pre-existing right, it is not creating a right, title and interest in praesenti in which event it is not a compulsory registrable instrument, as per N. Khosala v. Rajlaxmi (dead) and others, MANU/SC/1332/2006 : (2006) 2 ACJ 1128 (SC) : (AIR 2006 SC 1249).
19. Regarding second substantial question of law it has been argued that a registered Agreement to sell does not require attestation under law. If the attesting witness appears before the Court and admits the execution of the document it stands proved. If the witnesses present there have seen the execution of the document and in token thereof they have also signed the document, then that is a valid attestation, as per Usha International Ltd. and others v. IVth Additional District Judge and others (1991) 2 ACJ 935 : (1991 All LJ 1028) (Paras 17 and 18):
17. The next contention urged by Sri Bhatnagar was that the Will being relied upon by the Respondent No. 3 was not proved in accordance with Section 68 of the Evidence Act and as such, it was inadmissible in evidence. His contention is that the statement of the so called attesting witness namely, Sri Rajendra Kumar Gupta in his affidavit filed before the Prescribed Authority, does not prove the Will within the meaning of Section 68 of the Evidence Act. This contention too is not acceptable. It is evident from Section 1 of the Evidence Act itself that the provisions contained in the Act are not applicable to affidavits, as such the mode of proof of a Will and its exclusion from evidence in the event of the same being not proved in accordance with law as contemplated by Section 68 of the Evidence Act, cannot be applied to the proof of Will through an affidavit admitted in evidence under Section 34(1)(b) on the Rent Act. The statement of Rajendra Kumar Gupta as contained in his affidavit, copy of which has been annexed as Annexure 3 to the writ petition, clearly constitutes proof of the Will inasmuch as the said witness has clearly stated in his affidavit that Smt. Kokila Devi executed the Will dated 22-9-81 in his presence Paragraphs 3, 4 and 6 of the affidavit of Sri Rajendra Kumar Gupta, clearly prove that Smt. Kokila Devi signed the Will in his presence after fully understanding the contents of the documents. The witness has further stated that he himself and the other attesting witness affixed their signatures on the Will in the presence of Smt. Kokila Devi after she had put her own signatures. The Prescribed Authority as also the Appellate Authority have concurrently relied upon the affidavit of Sri Rajendra Kumar Gupta, which finds support from the affidavits filed by Respondent No. 3 as also some of the legatees, who derived the benefits under the same very Will dated 22-9-81. As such it is not possible for me to like a contrary view and hold, as contended by the learned Counsel for the Petitioners, that the execution of the Will was not proved in accordance with law.
18. Sri S.S. Bhatnagar, learned Counsel for the Petitioners, then contended that the Will though required by law to be attested by at least two witnesses, was really not attested in accordance with law. This contention of Sri Bhatnagar is based on the fact that two attesting witnesses have affixed their signatures on the Will not at the bottom of the Will but on the margin thereof. According to Mr. Bhatnagar, an attesting witness must affix his signatures or thumb impression, as the case may be, in token of attestation of the Will at the bottom of the document and if such witness has affixed their signatures or thumb impression on the margin, then such a witness can at best be called as Marginal Witness and not an attesting witness. I find no merits in this contention of Sri Bhatnagar. The law does not provide any particular procedure for attestation of a document. In the case of a Will, all that is required is that it must be attested by at least two witnesses.
The word ‘attested’ in relation to an instrument as defined in Section 3 of the Property Act means “shall be deemed always to have meant attested by two or more witnesses each of whom has seen the executant sign or affix his mark to the instrument, or has seen some other person sign the instrument in the presence and by the direction of the executant, or has received from the executant, a personal acknowledgment of his signature or mark, or of the signature of such other person, and each of whom has signed the instrument in the presence of the executant; but it shall not be necessary that more than one of such witnesses shall have been present at the same time and no particular from the attestation shall be necessary
The object of attestation is to ensure that there is no fraud or other vitiating circumstances in the execution of the document. From the above definition it is clear that in order to constitute a valid attestation, the essential conditions are : (1) there must be two attesting witnesses : (2) each of them must have seen the executant sign or affix his mark to the instrument; and (3) each of the two attesting witnesses must have signed the instrument in the presence of the executant. It is not at all necessary, in order to constitute a valid attestation that the attesting witnesses must sign, as contended by the learned Counsel for Petitioner at the bottom of the Will. In fact the attestation consists in witnessing the fact of execution of a document and if the witnesses present there, have seen the executant executing the document and in token thereof they have also signed the document, then that is a valid attestation. It is noteworthy that the Petitioners have in a sense admitted the 3rd Respondent as landlady by calling her as such in various paras of the writ petition. Resultantly, the third contention of the learned Counsel for the Petitioners is also devoid of merits.
20. The Hand Writing/Finger Print Expert Report filed by the plaintiff could not have been read against the plaintiff by the lower appellate court, as it was not a substantive piece of evidence, in the absence of the examination of the Export.
21. In view of language of section 45 of Evidence Act, it is necessary that before a person can be characterized as an export there must be some material on the record to show that he is one who is skilled in that particular science and is possessed of peculiar knowledge concerning the same. Thus in absence of expert appearing in the witnesses and being subjected to cross-examination his report alone cannot be treated as evidence, much-less an opinion evidence. In paragraph Nos. 28 and 29 of Bal Kishan Das v. Radha Devi, MANU/UP/0246/1989 : AIR 1989 All. 133 (DB), this Court has held as follows:
28. In the words of Rogers, an expert in any science, art or trade is one who by practice and observation has become experienced therein. An expert, therefore, really means a person who by reason of his training or experience is qualified to express an opinion whereas an ordinary witness is not competent to do so. His evidence is only an opinion evidence which is based on his special skill or experience. In view of the language of Section 45, it is necessary that before a person can be characterised as an expert, it is necessary that there must be some material on the record to show that he is one who is skilled in that particular science and is possessed of peculiar knowledge concerning the same. He must have made special study of the subject or acquired special experience therein. Thus before the testimony of a witness becomes admissible, his competency as an expert must be shown, may be, by showing that he was possessed of necessary qualification or that he has acquired special skill therein by experience. Apart from the question that the report of a handwriting expert may be read in evidence, what is necessary is that the expert should be subjected to cross-examination because an expert like any other witness is fallible and the real value of his evidence consists in the rightful inferences which he draws from what he has himself observed and not from what he merely surmises.
29. Unfortunately in the present case after the report of the Handwriting Experts from either side had been submitted for admission in evidence, a statement was made that their reports may be read in evidence without formal proof. The question arises whether such a report can ipso facto become opinion evidence in the case. It has been urged that even though the reports as a document can be read in evidence but in the absence of the expert appearing as a witness and being subjected to cross-examination, his report alone cannot be treated as evidence much less an opinion evidence. Apart from this even a reading of the report does not disclose that the person who has given the report was really an expert in this particular branch or that he had acquired necessary skill by experience. The letter head on which the report is typed alone will not prove that the person was an expert. There is thus no material on the record to show that the persons who have submitted their reports regarding, the disputed handwriting were qualified as experts within the meaning of Section 45 of the Evidence Act. In a situation like this, the reports were not at all admissible in evidence and the learned trial Court was certainly in error in placing reliance thereon. The experts’ evidence is only a piece of evidence and the weight to be given to it has to be judged along with other evidence as evidence of this nature is ordinarily not conclusive. Such evidence, therefore, cannot be taken as substantive piece of evidence but is there to corroborate the other evidence.
22. Before opinion of an expert is accepted the court has to satisfy itself that the person who is being examined to prove a signature is qualified or not and is indeed an export. This view has also been considered with approval in paragraph No. 3 of the Judgment in the case of Ramdhar Singh v. Prasiddha Narain Dubey and another (2004) 2 ACJ 1375 (Para 3).
3. I shall first take up the contention that the court could not have acted as an expert. The findings recorded by the Court below on this point is that Hasan Raza who was examined by the applicant as expert did not state at all that he was a handwriting expert. The certified copy of the statement of the expert has been produced before me. The witness has no doubt been referred to as hand writing expert in the description shown against his name at the head of his statement but neither in the examination-in-chief nor in the cross-examination has it been stated that he is a handwriting expert. Opinion of experts is relevant under Section 45 of the Evidence Act. Before his opinion is accepted the court has to satisfy itself that the person who is being examined to prove a signature is qualified or not and is indeed an expert. As there was no statement at all made by Hazan Raza that he was a hand writing expert, he cannot be classed as an expert. His statement could therefore not have been relied upon and the court below committed no error on this point. The court below has on the other hand considered the statement of the expert of the respondents M. Kakkar. It has also made visual comparison of the signatures and has come to the conclusion that the signatures on the tenancy agreement do not tally with the admitted signatures. The Trial Court also considered the statements of the applicant and of his witness Ravi Bhushan but did not find them reliable. This is essentially a finding of fact and appears to suffer from no error.
23. Regarding third substantial question of law, learned Counsel for the plaintiff-appellant has submitted that adverse inference against the plaintiff could have been drawn only if she had withheld certain evidence and not merely on account of her failure to get the Expert examined. Moreover, to make the Expert Report admissible in evidence, the Expert could have been summoned by the Court for examination either by itself or at the instance of the defendant.
24. No adverse inference can be drawn against the prosecution from the fact that the opinion of the handwriting expert has not been obtained. In fact, an adverse inference against the prosecution can be drawn only if it withhold certain evidence and not merely on accounts of its failure to obtain certain evidence. The Apex Court in paragraph Nos. 8 and 9 of the Judgment, Srichand K. Khetwani v. State of Maharashtra, MANU/SC/0100/1966 : AIR 1967 SC 450 has held as follows,
8. Karmik’s statement that the appellant had written the endorsement on the postal receipt has been accepted by the High Court. It is not necessary to examine an handwriting expert in every case of disputed writing. The Investigating Officer stated that he did not send the specimen writing of the appellant for comparison with the endorsement on the postal receipt as he could not secure admitted writings of the appellant though he tried his best to obtain his admitted hand writings. He was not further questioned to explain why he considered it necessary to have admitted writings of the appellant in order to obtain the opinion of the handwriting expert about the disputed writing when specimen writings of the appellant were available. The explanation of the Investigating Officer seems to have been on account of practice. It appears from his statement that he sent certain questioned documents along with the admitted handwritings and specimen handwritings, signatures and initials of accused Nos. 1 and 2 to the Government Examiner of questioned documents. The practice may be sound or not but the bona fides of the conduct of the Investigating Officer cannot be questioned. The High Court, however, further considered that the material provided by the writing on the acknowledgment receipt was very scanty and the Investigating Officer might have felt that the subsequent handwriting would be feigned or disguised and that any comparison with the same would be deceptive. Such considerations might have been in the mind of the Investigating Officer but he had not stated them to be his reasons for not obtaining the opinion of the handwriting expert. The High Court cannot be said to have been in error in taking these further reasons into consideration and holding that no adverse inference can be drawn against the prosecution from the fact that the opinion of the handwriting expert has not been obtained with respect to the endorsement on the acknowledgment receipt.
9. Further, an adverse inference against the prosecution can be drawn only if it withholds certain evidence and not merely on account of its failure to obtain certain evidence. When no such evidence has been obtained, it cannot be said what that evidence would have been and therefore no question of presuming that that evidence would have been against the prosecution, under S. 114, illustration (g) of the Evidence Act, can arise.
25. Presumption is not in itself evidence. It is a rule concerning evidence. It indicates the person on whom the burden of proof lies. When presumption is conclusive it obviates production of any other evidence to dislodge the conclusion to be drawn on proof of certain facts. But when it is rebuttable it only points out the party on whom lies the duty of going forward on evidence on the facts presumed and when the parties have produced evidence fairly and reasonably ending to show that the real fact is not as presumed, the purpose of presumption is over. The Apex Court has held in the case of M/s. Sodhi Transport Co. and another, etc., appellant v. State of U.P. and another, etc., MANU/SC/0409/1986 : AIR 1986 SC 1099 (Page 14).
14. A presumption is not in itself evidence but only makes a prima facie case for party in whose favour it exists. It is a rule concerning evidence. It indicates the person on whom the burden of proof lies. When presumption is conclusive, it obviates the production of any other evidence to dislodge the conclusion to be drawn on proof of certain facts. But when it is rebuttable it only points out the party on whom lies the duty of going forward with evidence on the fact presumed, and when that party has produced evidence fairly and reasonably tending to show that the real fact is not as presumed the purpose of presumption is over. Then the evidence will determine the true nature of the fact to be established. The rules of presumption are deduced from enlightened human knowledge and experience and are drawn from the connection, relation and coincidence of facts, and circumstances.
26. Where defendant has tried to wriggle out of the contract due to escalation of price and the plaintiff has paid the entire consideration, it will be inequitable and unjust to deny decree of specific performance, as held by the Apex Court in the case of Govind Ram v. Gian Chand, MANU/SC/0607/2000 : JT. (2000) 1 (Suppl) SC 101 : (AIR 2000 SC 3106) (Paras 7, 8 and 9),
7. It is the settled position of law that grant of a decree for specific performance of contract is not automatic and is one of discretion of the Court and the Court has to consider whether it will be fair, just and equitable. Court is guided by principle of justice, equity and good consensus. As stated in P. v. Joseph’s Son Mathew (MANU/SC/0173/1987 : AIR 1987 SC 2328) (supra) the court should meticulously consider all facts and circumstances of the case and motive behind the litigation should also be considered.
8. High Court considering the facts of this case and observed as follows:
“We are conscious of the fact that the defendant has been in possession of the said quarter for the last several decades and logical consequence of affirming the Judgment of the trial court would mean considerable hardship to him, at the same time the conduct of the defendant does not justify any further indulgence by the court. We have no doubt that the defendant has tried to wriggle out of the contract between the parties because of the tremendous escalation in the prices of real estate properties all over the country and in Delhi, in particular in the last few years.”
9. In view of the above clear finding of the High Court that the appellant tried to wriggle out of the contract between the parties because of escalation in prices of real estate properties, we hold that the respondent is entitled to get a decree as he has not taken any undue or unfair advantage over the appellant. It will be inequitable and unjust at this point of time to deny the decree to the respondent after two courts below have decided in favour of the respondent. While coming to the above conclusion we have also taken note of the fact that the respondent deposited the balance of the consideration in the Trial Court and also the amount in the High Court, as directed. On the other hand appellant as held by the High Court tried to wriggle out of the contract in view of the tremendous escalation of prices of real estate properties. However, to mitigate the hardship to the appellant we direct respondent to deposit a further sum of Rs. 3,00,000/- within 4 months from today with the registry of this Court and the amount shall be kept in Short Term Deposit in a nationalised bank. While giving the above direction we have taken note of the offer made to us on behalf of the respondent. This amount is to be paid to the appellant on giving his possession of the suit property to the respondent within 6 months from the date of the deposit of the above amount. The appellant shall also be entitled to withdraw the amount already deposited in the Trial Court and the amount of Rs. 1,00,000/- which has been kept in Interest bearing fixed deposit in the registry of the High Court.
27. The learned Counsel for the defendants has argued that the trial court failed to consider the series of events and in a proper way and failed to consider the very relevant question as to how the suit which was originally filed claiming consideration of Rs. 10,000/- could be made to Rs. 45,000/- on the basis of unregistered agreements dated 18.04.1987 and 26.11.1990. The trial court merely narrated the facts and without considering and reaching to the conclusion that while the plaintiff’s evidence was relied and the defendant’s evidence was rejected decided issue Nos. 1, 4, 5 and 9 and thereafter while deciding issue No. 4 again after narrating the facts the conclusion has been drawn. The plaintiff filed a regular appeal against the judgment and decree of the Trial Court which was registered as Civil Appeal No. 17 of 1999.
28. The lower appellate court has rightly reversed the finding recorded by the Court below vide its order and judgment dated 21.11.2000. The lower appellate court has very meticulously considered the material on record and rightly held that for non production of hand writing expert by the plaintiff, presumption has to be drawn under Section 114 of Indian Evidence Act against the plaintiff to the effect that if handwriting expert would have been produced he would have proved that the left thumb impression in the office of the Registrar in the agreement to sell dated 19.11.1982 and obtained by the trial court were different. The lower appellate court in paragraph No. 7 onwards of its judgment has considered that the documents agreement dated 18.04.1987 and 26.11.1990, were not admissible in evidence in view of provisions of Section 17(1)(c) of the Indian Registration Act. The lower appellate court has also found that the attestation was not in accordance with law as the witnesses Moti Lal Verma and Markandey Mishra did not put their signatures before Defendant Samuel.
29. The trial court having found that the original agreement to sell dated 19.11.1982 was itself not proved therefore the suit was liable to be dismissed. The said finding is based on appraisal of evidence on record.
30. During the pendency of the appeal, an impleadment application was filed by the appellant somewhere in April, 2007 with the allegation that the defendant Samuel had sold the property in favour of three persons who were impleaded as respondent Nos. 2, 3 and 4. From the facts of the application it is apparent that the property in dispute has been sold to respondent Nos. 2, 3 and 4. In view of provisions of Section 19(b) of the Specific Relief Act, the subsequent purchasers who are having the land in their favour and possession and who have paid the money in good faith and without notice of the original contract no decree for specific relief can be passed against them. It is relevant to mention here that the suit was filed in the year 1991 and the interim relief application of the plaintiff was rejected by order dated 18.02.1995. The suit remained pending till 1999 and there was no interim order operating meanwhile and therefore the defendant could execute sale deed dated 03.04.1998 and 02.11.1998.
31. It is settled law that reliefs under Specific Relief Act are discretionary in nature. Under Section 14(a), the contract for nonperformance of which compensation in money is an adequate relief cannot be specifically enforced. Section 20 of the Act, provides that the jurisdiction to decree a suit for specific performance is discretionary and the Court is not bound to grant such relief merely because it is lawful to do so.
32. The lower appellate court has dismissed the suit on the ground that the agreement to sale dated 19.11.1982 is not proved and also dismissed the suit on the ground that the agreement to sell dated 18.04.1987 and 26.11.1990 are not registered under Section 17 of the Registration Act. No question has been framed to challenge the decision of the first appellate court allowing the appeal and dismissing the suit on the ground that original agreement to sell dated 19.11.1962 was not itself proved and by the agreements dated 18.04.1987 and 26.1.1990 the original contract has been amended and new rights have been created. The finding of the lower appellate court has not been challenged and the document has not been proved according to Section 68 of the Indian Evidence Act.
33. Learned counsel for the defendant-respondents has placed reliance upon the judgment of the Apex Court in the case of Chain Palal v. Samarthbai, reported in MANU/SC/0302/1960 : AIR 1960 SC 629 in support of his contention that filing of an unregistered document as evidence is not prohibited under Section 49 of the registration Act; what is prohibited is that it could not be considered as evidence regarding immoveable property in view of Section 17 of the Registration Act. A document which is required to be registered cannot be accepted as evidence without registration, in case it relates to a immoveable property. Further reliance has been placed on the judgment of Sita Maharani v. Chhedi Mahto reported in MANU/SC/0090/1955 : AIR 1955 SC 328 wherein for non filing of evidence in possession of party before the Court adverse inference was drawn by the Court which was approved by the Apex Court.
34. After hearing the learned counsel for the parties, it is to be decided that whether under the facts and circumstances of the case and on the basis of evidence on record the plaintiff is entitled to get a decree of specific performance of contract or not. The grant of decree for specific performance of contract is a discretionary relief under Section 20 of the Specific Relief Act 1963. The court is not bound to grant such a relief merely because it is lawful to do so but at the same time the discretion is required to be exercised on the basis of sound and settled judicial principle and not arbitrarily.
35. First substantial question of law is regarding validity of subsequently executed documents, paper Nos. 77ka/1 and 78 ka/1.
36. In the present case the agreement to sell, paper No. 76 ka/1, was executed for total sale consideration of Rs. 10,000/- and thereafter by execution of document Nos. 77ka/1 and 78ka/1 terms of the agreement were varied and further amounts were paid by plaintiff and allegedly accepted by defendant and the total sale consideration was enhanced to Rs. 45,000/-. No law has been cited on behalf of the plaintiff to prove that terms of a registered document can be varied by unregistered document in future. The reliance of the learned counsel for the plaintiff- appellant on the authority of N Khosala v. Rajlaxmi (dead) and others (MANU/SC/1332/2006 : AIR 2006 SC 1249) (supra) is not relevant for deciding the suit for specific performance of contract since the unregistered receipts executed subsequently do not make a declaration of a pre-existing right but vary the terms of the pre-existing right which cannot be done by unregistered document. The receipts, paper Nos. 77 ka/1- 78ka/1, were unregistered and should not have been read and relied in evidence by the Trial Court. Finding of the lower appellate court in this regard is correct. Even the original agreement to sell was not found to be proved in accordance with law by the lower appellate court and it has recorded a finding of fact which cannot be disturbed in exercise of second appellate jurisdiction by this Court.
37. Regarding second substantial question of law, it is required to be stated that even if Moti Lal Verma proved the due execution of the agreement to sell, it will not be of any help for the plaintiff. Agreement to sell in dispute has not been sought to be enforced by the plaintiff rather it has been sought be enforced along with subsequent modification by receipts, paper Nos. 77 ka/a and 78 ka/1 which varied the terms of the agreement. Even if it is accepted that the original agreement to sell, paper No. 76 ka/1, was proved, its enforcement, as it is, has not been sought in the plaint by the plaintiff. Therefore, the question is redundant.
38. Finally regarding third substantial question of law it is stated that even if the argument of the learned counsel for the appellant is accepted that no adverse inference could have been drawn against the plaintiff for not producing the expert in evidence for proving the signature of the defendant on the disputed agreement to sell, it will make no difference so far as the final result of the litigation is concerned. The reliance of the counsel for plaintiff on the judgment of M/s. A. R.C. Overseas Pvt. Limited (2008 (2) All LJ 663) (supra) and the judgement of Hamda Ammal (supra) for the purpose of substantiating his argument that unregistered document can be admitted in evidence for collateral purpose, it is required to be stated that unregistered receipts, paper Nos. 77ka/1 and 78ka/1, were not the documents to be received in evidence for collateral purpose but these documents varied the terms of the original agreement to sell between the parties and therefore, they did not served any collateral purpose but were direct evidence, evidencing variation of the terms of contract, of a registered document and the terms of a registered document cannot be varied by a unregistered document executed in future. In view of the above factual and legal position of the case, the judgment of the lower appellate court does not appear to suffer from any illegality and is hereby affirmed.
This second appeal is dismissed with costs.