Case Note & Summary
The present appeal arises from a suit for specific performance of an agreement to sell dated 12-12-1994 filed by the original plaintiff (since deceased, represented by legal heirs) against the original defendants (appellants herein). The plaintiff claimed that the original defendant No.1 (since deceased) had agreed to sell suit property for Rs. 1,10,000 and received an advance of Rs. 10,000, with balance to be paid at the time of registration. The defendants denied the agreement, alleging it was forged. The trial court dismissed the suit, holding that the plaintiff failed to prove the execution of the agreement and readiness and willingness. The lower appellate court reversed the decree and decreed the suit. The defendants appealed to the High Court. The High Court allowed the appeal, setting aside the lower appellate court's judgment and restoring the trial court's dismissal. The Court held that the plaintiff failed to examine any attesting witness as required under Section 68 of the Evidence Act, and the lower appellate court erred in relying on its own comparison of signatures under Section 73 without expert evidence. The Court also found that the plaintiff did not prove readiness and willingness as required under Section 16(c) of the Specific Relief Act. The appeal was allowed with no order as to costs.
Headnote
A) Evidence Act, 1872 - Section 68 - Proof of execution of document required by law to be attested - Where a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution - In the present case, the agreement to sell was attested by two witnesses, but neither was examined; the plaintiff failed to prove execution as required by law (Paras 14-16). B) Evidence Act, 1872 - Section 73 - Comparison of signature by Court - The Court may compare a disputed signature with admitted signatures - However, the Court should not base its conclusion solely on its own comparison without expert evidence, especially when the document is disputed and the attesting witnesses are not examined (Para 18). C) Specific Relief Act, 1963 - Section 16(c) - Readiness and willingness - Plaintiff must aver and prove continuous readiness and willingness to perform his part of the contract - In this case, the plaintiff failed to prove readiness and willingness as he did not examine himself and did not lead evidence to show he had the means to pay the balance consideration (Paras 19-20). D) Civil Procedure Code, 1908 - Order 41 Rule 31 - Judgment in appeal - The appellate court must consider the evidence and give reasons for its decision - The lower appellate court failed to properly appreciate the evidence and erroneously reversed the trial court's decree (Paras 21-22).
Issue of Consideration
Whether the appellants (original defendants) have proved that the agreement to sell dated 12-12-1994 is not genuine and not executed by the deceased original defendant No.1?
Final Decision
The High Court allowed the appeal, set aside the judgment and decree of the lower appellate court, and restored the trial court's decree dismissing the suit. No order as to costs.
Law Points
- Specific performance
- burden of proof
- attesting witness
- execution of document
- Section 68 Evidence Act
- Section 73 Evidence Act
- Section 16(c) Specific Relief Act
- readiness and willingness
