The burden of proof lies with the party seeking specific performance to establish the genuineness of the documents and the capacity of the other party to understand the transaction.

Mungeshwar Sahoo, J.

1. The Plaintiffs have filed this first appeal against the judgment and decree dated, 10th March 1979 passed by Sri Aditya Sharan, 2nd Additional Subordinate Judge, Arrah in Title Suit No. 171 of 1973/234 of 1974 dismissing the Plaintiffs-Appellants suit for specific performance of contract.

2. The Plaintiffs-Appellants filed the aforesaid title suit for a decree for specific performance of contract dated, 13th November, 1972 regarding the property mentioned in Schedule 2 of the plaint.

3. The Plaintiffs claimed the aforesaid relief alleging that the Plaintiffs were knowing the Defendant Bibi Nurfatma from before. She was in need of money for repairing her house and other expenses so she agreed to sell the land measuring 4.25 acres and house measuring 13 decimal for a consideration of Rs. 20,000 and on receiving advance of Rs. 5000 a Mahdanama was executed on 13th November, 1972. She agreed to execute and register the sale deed by 30th Kartik 1973. The culturable land measuring 4.25 acres was coming in possession of the Plaintiffs as Sikamidars. Bibi Nurfatma gifted 12 decimal of house out of the suit property in favour of Mohd. Abas Khan and, therefore, to avoid litigation Mohd. Abas Khan re-conveyed the aforesaid 12 decimal of the house to the Plaintiffs by executing a registered sale deed in March 1973. Therefore, suit was filed for specific performance of contract for sale regarding 4.25 acres of culturable land and remaining 1 decimal of Holding No. 146. The Plaintiffs were always and are still ready to perform their part of the contract. The Plaintiffs requested many times to accept the balance consideration amount and execute the sale deed but she avoided. Notices were sent but she refused to accept the notice. Hence the suit.

4. The further case of the Plaintiffs is that after institution of the suit Bibi Nurfatma, Defendant No. 1, sold the suit property to the tenant Chaturgun Sah. The sale in favour of Chaturgun Sah is hit by Section 52 of the Transfer of Property Act and moreover, the sale is sham and colourable and without consideration.

5. The original Defendant No. 1 Bibi Nurfatma appeared and filed a separate written statement and thereafter she died. According to her written statement the value of the suit property is not less than Rs. 40,000 She was a Pardanashin lady and was illiterate. She only used to sign. There was no such agreement for sale as alleged by the Plaintiffs and no Mahadanama was executed on 13th November, 1972 by her after receiving advance of Rs. 5000 regarding the suit property. The said Mahadanama is forged and fabricated and it does not bear the signature of Bibi Nurfatma nor she ever put signature on it. She never asked scribe Brij Kumar Lal to writ any Mahadanama nor she asked the witnesses to put their signature on the said Mahadanama. The two attesting witnesses Mohd. Sakur and Abdul Barkat were originally employees of Bibi Nurfatma but they were removed by her as they were committing mischief forgery by practicing fraud upon her and, therefore, they might have in collusion with the Plaintiffs manufactured the Mahadanama.

6. The further case is that they have also got a manufactured deed of gift in favour of Absa Khan and, therefore, Bibi Nurfatma has filed Title Suit No. 20 of 1973 challenging the gift deed. The further case is that the Plaintiffs were never in possession of her land as Sikamidars nor they are in possession. She has sold suit property in favour of Chaturgun Sah. Because the gift deed in favour of Abas Khan is also forged and fabricated, the sale deed executed by Abas Khan is not binding on the Defendant and it did not confer any title on the Plaintiffs. A separate written statement has been field by Chaturgun Sah. His defence is in the same line as that of Bibi Nurfatma. The other purchasers, Defendant Nos. 4 and 5 also filed separate written statement taking the same defence. The legal heirs substituted in place of Bibi Nurfatma adopted