HIGH COURT OF MADHYA PRADESH
K. L. Pandey & A. P. Sen, JJ.
Sushila Devi
Vs.
Laxmibai
F. A. No. 136 of 1967 against the decree passed by Shri S. N. Johri, I Addl. District Judge, Bilaspur
Decided On : 20-9-1969
The opinion of experts is not conclusive and it can hardly take the place of substantive evidence. The best that can be said about the opinion of any hand writing expert is that it is the evidence of only general tendencies usually exhibited in the handwriting and its weakness consists in the fact that such tendencies are affected, or liable to be affected, by the state of mind of the writer influenced by several factors like self consciousness, hurry or a desire to conceal. Before acting on such evidence, it is usual to see if it is corroborated by direct or circumstantial evidence. AIR 1964 SC 529 and AIR 1963 SC 1728 relied on. [Para 18
(2) Specific Relief Act, 1963 - S. 16 -suit for specific performance of contract-readiness and willingness to perform the part of the contract by plaintiff-payment of money involved-money when may not be actually tendered.
It is well settled that a formal tender is not required when it appears from the evidence that the party to whom it would have been made would have refused to accept the money. AIR 1923 P. C. 26 & AIR 1928 P. C. 208 referred to.
When there was no direction of the Court to make the deposit and the defendant repudiates the contract itself, the tender is not essential. The repudiation of the contract by the defendant prevents or waives earlier performance of that part of the contract by the plaintiff. [Para 21
(3) Specific Relief Act, 1963-S. 20 (2) (b)-suit for specific performance-hardship to defendant by the decree - when not a ground.
When a party knowing its liability under the contract, brings about a hardship on itself, the Court will not regard that as a consideration in favour of refusal of specific performance. AIR 1914 Cal. 137 relied on.
Where a person taking a house under a sale with agreement co re-transfer makes improvement before the expiry of the term for retransfer and also makes further improvements after the notice to re-convey, such party cannot claim that by passing a decree for specific performance, it will suffer hardship. [Para 22
Pandey, J.-
1. This is a defendant's appeal against the lower Court's decree for specific performance of a contract dated 20 February 1957 whereby she was said to have undertaken to re-convey the immoveable property purchased by her by a sale deed dated 19 February 1957.
2. The material facts appearing in the pleadings and evidence, which are not now in contest, may be shortly stated. In Chanduabhata, a ward of Bilaspur town, there is a row of houses known as Jacob Chawl, which was formerly owned by one J. A. Jacob, who had, by conversion, became a Hindu. He died in 1944 leaving behind him surviving his widow Laxmibai (plaintiff) and children, including a minor son Surya Prakash. One of the blocks of the Jacob Chawl was occupied by D. P, Jagota D.W. 2, a money-lender, who had advanced several sums of money to Laxmibai. She needed Rs. 3,000 more for expenses, inc1udmg those required for the betrothal of her daughters. She obtained that amount from D. P. Jagota D.W. 2 by executing in favour of the latter's wife, Susnila Devi (defendant), a sale deed Ex. D-5 dated 19 February 1957 for a consideration of Rs. 14,000 in respect of three of these blocks. One of these blocks was, as shown, in occupation of D. p. Jagota D. W. 2 himself as a tenant. Subsequently, he effected repairs and made some improvements in these blocks, two of which were in occupation of tenants who had attorned to the transferee. Finally, on 1 September 1964, Laxmibai sent to Sushila Devi a registered notice Ex. P- 12-A to say that she (Laxmibai) was ready and willing to pay Rs. 14,000 and demanded, pursuant to the terms of an Tkramama executed in her favour, a re-conveyance of the property sold by her. In reply Ex. P-14 dated 5 September 1964 sent by a lawyer, it was stated that the sale deed effected an outright sale for full consideration without any condition for conveying back the property by resale. Nothing was, however, said about the lkrarnama mentioned in the notice of demand.
3. According to Laxmibai, the transferee Sushila Devi had executed the lkrarnama Ex. P-1 dated 20 September 1957 whereby she promised to re-convey, within 10 years from the date of sale, the house property sold to her by the deed Ex. P-5 dated 19 September 1957 upon payment of Rs. 14,000. This she did not do in spite of demands made in that behalf orally as well as by the registered notice Ex. P-12-A. Laxmibai, therefore, initiated on 16 December 1964 the action, out of which this appeal arises, for specific enforcement of the contract for re-conveyance as well as for compensation for breach of the contract and future mesne profits from the date of suit.
4. The claim was resisted mainly on the ground that there was no agreement to re-convey the property as alleged by the plaintiff. It was pleaded that Sushila Devi's signature on the Ikrarnama Ex. P-1 was a forged one. According to her, the Ikrarnama was inadmissible in evidence for want of registration. She further pleaded that Laxmibai never asked her to accept Rs. 14,000 and re-convey the property and that, in any event, she was estopped from claiming such re-conveyance because she had, without any objection, allowed the property to be entered in the municipal records as belonging to Sushila Devi, asked her tenant G. R. Verma to attorn to Sushila Devi and failed to protest when the latter remodel1ed the blocks, made additions and alterations and effected major repairs at a cost of more than Rs. 20,000.
5. The Court of first instance found in favour of Laxmibai on all paints in controversy and passed, as already indicated, a decree for specific performance of the contract as well as for mesne profits from 3 September 1964, which were directed to be ascertained in execution proceedings.
6. The main question for consideration in this appeal is whether Sushila Devi executed the lkranama Ex. P-1 dated 20 February 1957. On this point, there is the direct evidence of V. P. Lazrus P. W. 5 and Babulal P. W. 6 (brother in-law and agent o
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