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1995 Supreme(All) 873
IN THE HIGH COURT OF ALLAHABAD
R. B. MEHROTRA
RAMDEO - Appellant
Versus
DULARI DEVI - Respondents
S. A. 631 Of 1983
Decided On : 08/28/1995
FAUJDAR RAI, U.K.MISHRA
In the case of an illiterate executant, the plaintiff must provide independent evidence to prove the execution of the agreement.
Headnote:
SPECIFIC PERFORMANCE - AGREEMENT FOR SALE - EXECUTION - BURDEN OF PROOF - ILLITERATE EXECUTANT - INDEPENDENT EVIDENCE REQUIRED:
Fact of the Case:
Plaintiff filed a suit for specific performance of an agreement for sale allegedly executed by the deceased husband of defendant No. 1 in favor of the plaintiff. The defendants contested the suit, and the trial court found in favor of the plaintiff. On appeal, the lower appellate court reversed the trial court's decision and dismissed the suit.
Finding of the Court:
The lower appellate court found that the plaintiff failed to prove that the deceased husband of defendant No. 1 had executed the agreement for sale in his favor. The court noted that the plaintiff was not the heir of the deceased and that there was a possibility that he obtained the deceased's thumb mark on the agreement without telling him the facts. The court also disbelieved the plaintiff's evidence regarding the payment of earnest money and the execution of promissory notes.
Issues: 1. Whether the plaintiff had proved that the deceased husband of defendant No. 1 had executed the agreement for sale in his favor. 2. Whether the plaintiff had discharged the burden of proof to establish the execution of the agreement by an illiterate person.
Ratio Decidendi: 1. The burden of proof lies on the plaintiff to prove the execution of the agreement for sale by the deceased husband of defendant No. 1. 2. In the case of an illiterate executant, the plaintiff must provide independent evidence to prove the execution of the agreement.
Final Decision: The appeal was dismissed.
( 1 ) THE present appeal has been filed by the plaintiff-appellant.
( 2 ) THE facts necessary for adjudication in this appeal are as under :ram Deo Yadav filed suit No. 30/73 against Smt. Dulari Devi, Smt. Indrawati and Smt. Parvati Devi in the Court of Civil Judge Azamgarh and later on Moti Yadav and Shrawan Yadav were also impleaded as defendants. In the said plaint relief prayed was for specific performance of the agreement for sale dated 27-1-72 by deceased Sri Jhabbar Yadav in favour of plaintiff regardingthe property in dispute and as per that agreement the defendants be directed to execute sale deed in favour of the plaintiff, in the alternative it was prayed that if for any reason it is not possible to get the sale deed executed, there should be a decree for return of earnest money to the tune of Rs. 8000. 00 paid to defendant at the time of execution of agreement for sale, along with interest thereon.
( 3 ) THE defendants contested the above suit. The trial Court framed issues on the basis of the pleadings of the parties. Out of the said issues the following issues are appropriate for decision of the present appeal. Issue No. 1:whether on 27-1-72 Jhabbar Yadav, the deceased husband of defendant No. 1 and father of defendants 2, 3 agreed to sell the property in suit in favour of the plaintiff for a consideration of Rs. 10000. 00?issue No. 2:whether the plaintiff paid earnest money to the tune of Rs. 8000. 00 to Jhabbar Yadav in terms of the agreement?issue No. 3:whether Jhabbar Yadav executed the agreement dated 27-1-72 paper No. 9a1 in favour of the plaintiff?issue No. 4:whether the defendants 2 to 5 had knowledge of the aforesaid agreement, and whether the said defendants are bona fide purchaser of the property in suit?
( 4 ) THE trial Court decided issues Nos. 1, 2 and 3 together and on the evaluation of evidence led by the parties recorded finding of fact that it is proved from the evidence that Jhabbar Yadav executed agreement dated 27-1-72 in respect of property in suit in favour of the plaintiff and Jhabbar Yadav got earnest money of Rs. 8000. 00 from the plaintiff at the time of execution of agreement.
( 5 ) THE issue No. 4 was also decided by the trial Court in favour of plaintiff and against defendants and recorded finding of fact that the defendants 2 to 5 had the knowledge of the agreement of sale in respect of disputed property by Jhabbar Yadav in favour of plaintiff and the defendants 2 to 5 are not bona fide purchasers and apart from it also recorded the finding that defendant No. 1 executed sale deed dated 12-7-73 in favour of defendants 2 to 5 where as according to the terms of the agreement the plaintiff had filed the suit on 31-4-73 for execution of sale deed, thus the sale deed in favour of defendants 2 to 5 has been executed during the pendency of suit and the sale deed is hit by the doctrine of lis pendens.
( 6 ) AGGRIEVED by the aforesaid judgment the defendants preferred civil appeal No. 85/ 74. The District Judge Azamgarh by his judgment dated 10/01/1983 allowed the appeal of defendants and by setting aside the judgment of trial Court dismissed the suit with cost for the specific performance of contract. Aggrieved by the aforesaid judgment the present second appeal has been instituted by plaintiff. This Court by order dated 4-10-83 admitted the appeal for hearing and found that the following substantial questions of law arise in this appeal. 1. Whether it was justified on the part of lower appellate Court to upset the view of trial Court based on appreciation of oral evidence and the marked demeanour of witnesses?2. Whether the lower appellate court was justified to ignore the admission of the defendants, the trial Court having based the judgments on admission?3. Was the lower appellate Court justified in relying upon surmises and conjectures?
( 7 ) I have heard Sri Umakant Misra in support of appeal and Sri Faujdar Rai in support of respondents.
( 8 ) FOR determining the above
