Case Note & Summary
The plaintiff filed a second appeal against the dismissal of his suit for specific performance of an agreement to sell property. The plaintiff and defendant entered into an agreement on 26-9-1986 for sale of property 'Aradi of Pedem Grande'. The defendant also executed a general power of attorney on 17-10-1986 and an affidavit reiterating she was the sole heir. Later, differences arose and the defendant claimed her sisters had an interest, refusing to execute the sale deed. The plaintiff filed suit for specific performance. The trial court decreed the suit, but the appellate court reversed, holding that the plaintiff failed to prove readiness and willingness. The High Court admitted the appeal on substantial questions of law, including whether the appellate court overlooked that the defendant's failure to prove Issue No. 2 (rebuttal) would entitle the plaintiff to a decree. The High Court allowed the appeal, set aside the appellate judgment, and restored the trial court's decree, directing the defendant to execute the sale deed within two months.
Headnote
A) Specific Performance - Burden of Proof - Rebuttal Issue - Failure to Prove - The Appellate Court erred in overlooking that the defendant's failure to prove Issue No. 2 (rebuttal) entitled the plaintiff to a decree based on documentary evidence, including the agreement of sale, power of attorney, and affidavit. Held that the burden of proof on the defendant was not discharged, and the suit ought to have been decreed. (Paras 1-3)
Issue of Consideration
Whether the Appellate Court committed illegality in overlooking that failure of the Respondent to prove Issue No. 2 which was in rebuttal would pave way for suit being decreed based on documentary evidence?
Final Decision
Appeal allowed. Judgment and decree of the Appellate Court set aside. Judgment and decree of the trial court restored. Defendant to execute sale deed within two months from today. In default, plaintiff entitled to get sale deed executed through court.
Law Points
- Specific performance
- burden of proof
- rebuttal issue
- documentary evidence
- failure to prove issue leads to decree
