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2000 Supreme(MP) 166
2001 (2) JLJ 261
D.P.S. Chauhan, Ag. C.J. and A.K. Mishra, J.
Sirumal v. Smt. Annapurna Devi
First Appeal No. 178 of 1995; against the judgment passed by Shri K.K.
Shrivastava, District Judge, Bilaspur in Civil Suit No. 29-A of 1992;
Decided on 23.2.2000.
A.G. Dhande for appellant; Dinesh Choubey for respondent.
Headnote:(1) Evidence Act, 1872 -- S. 111 --Contract Act, 1872 -- S. 16 -- person enjoying good faith and active confidence -- benefitting from transaction -burden is on him to prove its bona fide nature.
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. 1923 AC 673 PC and AIR 1930 PC 139 relied on. [Para 10
(2) Evidence Act, 1872 -- S. 137 -- in cross-examination -- it is the duty to put ones own case to opponent --otherwise deposition of witness cannot be discredited.
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 the version of the witness has to be taken as unchallenged. AIR 1945 Nag. 60,AIR 1958 Pun. 440 and AIR 1950 Nag. 83 relied on. [Paras 11& 12
(3) Stamp Act, 1899 -- S. 29 (c) -- Transfer of Property Act, 1882 -- S. 55 (2) (b) -- readiness and willingness to perform ones part of contract -- includes bearing of stamp duty and registration charges of sale deed incumbent upon vendee. [Para 15
(4) Contract Act, 1872 -- Ss. 16(3) and 17 -- agreement itself containing intrinsic evidence of signatures being obtained on blank stamp paper -- doubt full circumstances attending agreement and its execution, not proved as required -- readiness and willingness to perform one‘s part of contract not made out -- document is fabricated. [Paras 7, 10, 15 & 16
¼1½ lk{; vf/kfu;e] 1872&/kkjk 111&lafonk vf/kfu;e] 1872&/kkjk 16&ln~Hkko rFkk lfØ; fo‘okl O;fDr&laOogkj ls mls Qk;nk&mldh ln~Hkkoiw.kZ çÑfr lkfcr djus dk Hkkj ml ij gSA
lk{; vf/kfu;e dh /kkjk 111 ds mica/k ds v/khu ln~Hkko rFkk lfØ; fo‘okl çkIr O;fDr ij lcwr dk cM+k Hkkj gSA çfroknh fo/kok rFkk o`) L=h gSa rFkk mls oknh ij fo‘okl Fkk vkSj dLin eksgjh txrukjk;.k dks viuh Hkwfe ds foØ; ds fy, og oknh ij fuHkZj FkhA lnHkko lkfcr djus ds Hkkj ds ,sls ekeyksa esa] tgk¡ ,d i{kdkj] nwljs i{kdkj ds lfØ; fo‘okl dh fLFkfr esa gksa] lkE;k ds U;k;ky;ksa }kjk] laO;ogkj dh iqf"V djus dk Hkkj fujiokn :i ls] mlls ykHkkfUor i{kdkj ij] mlls ;g vis{kk djrs gq, Mkyk x;k gS fd og nf‘kZr djs fd og laO;ogkj vfookn Lo:i dk FkkA 1923 , lh 673 ih lh rFkk , vkb vkj 1930 ih lh 139 voyafcrA ¿iSjk 10
¼2½ lk{; vf/kfu;e] 1872&/kkjk 137&çfr&ijh{kk esa&viuk Lo;a dk i{kdFku fojks/kh i{kdkj ds le{k j[kus dk drZO; gS&vUFkk lk{kh ds vfHklk{; dk vfo‘okl ugha fd;k tk ldrkA
oknh dh vksj ls bl lk{kh dh çfr&ijh{kk dh xbZ Fkh ijarq bl rF; ds ckjs esa dksbZ çfr&ijh{kk ugha dh xbZ gS fd oknh us txrukjk;.k rFkk vUuiw.kZ ds e/; lkSnk r; ugha fd;k FkkA ;g çfr&ijh{kk ugha dh xbZ gSa fd lh:ey us lk{kh ds :i esa foØ; foys[k çn‘kZ Mh&1 ij gLrk{kj ugha fd, FksA çfr&ijh{kk dk fo"k; dsoy [kks[kyh vkSipkfjdrk ugha gS] vfirq viuk Lo;a dk i{kdFku çfr&ijh{kk esa çLrqr djuk visf{kr gS] vU;Fkk lk{kh ds o`Ùkkar dks vçfrokfnr ekuk tkuk gksxkA , vkb vkj 1945 ukx- 60] , vkb vkj 1958 ia- 440 rFkk , vkb 1950 ukx- 83 voyafcrA ¿iSjk 11 ,oa 12
¼3½ LVkai vf/kfu;e] 1899&/kkjk 29 ¼x½&laifÙk varj.k vf/kfu;e] 1882&/kkjk 55 ¼2½ ¼[k½&lafonk ds vius Hkkx dk ikyu djus dh rS;kjh rFkk jtkeanh eas&Øsrk ds fy, vko‘;d foØ; foys[k dh LVkai ‘kqYd rFkk jftLVªhdj.k çHkkjksa dk ogu lfEefyr gSA ¿iSjk 15
¼4½ lafonk vf/kfu;e] 1872&/kkjk 16 ¼3½ rFkk 17&Loa djkj esa gLrk{kj dksjs LVkai&i= ij vfHkçkIr djus dk varHkwZr lk{; varfoZ"V&djkj rFkk mlds fu"iknu dh vkuq"kafxd lansgkLin ifjfLFkfr;ksa vis{kkuq:i lkfcr ugha&lafonk ds vius Hkkx dk ikyu djus dh rS;kjh rFkk jtkeanh fl) ugha&nLrkost feF;k gSA ¿iSjk 7] 10] 15 ,oa 16
Mishra, J. -- 1. Plaintiff-appellant's suit for specific performance of contract of sale dated 4.1.1992 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. 1992, 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 4.1.1992 for a consideration of Rs. 2, 30,000/-. An amount of Rs. 80,000/- was paid on 4.1.1992 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 dated 8.4.1992 was served by registered post to execute the sale deed by 10th April, 1992. Telegraphic Notice was also sent. News paper publication was also made in Dainik Lokswar dated 10.4.1992, but in-spite of publication and the notice, the defendant did not, execute the sale deed. In paragraph 6 of the plaint it was submitted 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 .1992. 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 dated 4.1.1992 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 deals. The plaintiff had arranged for sale of 4,000 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 4.1.1992. 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 4.1.1992 at several places. The defendant was educated upto 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 dated 8.4.1992, the defendant could know that by playing fraud, plaintiff has prepared a forged 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 u/s 420, 467 and 468, IPC was registered against the plaintiff. The reply of the notice was also sent. Telegraphic notice dated 9.4.1992 was not received. It was further contended that the land was worth Rs. 14,04,000/-, as out of the said very survey number on 4.1.1992 two sale deeds were executed in favour of Kaspad
