IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA R.S.A.No. 387 of 1998. Judgment reserved on : 8.5.2009 Date of decision : 20.5.2009. Surender Devi …Appellant. Versus Ram Lubhaya ....Respondent. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ?1 Yes For the Appellant : Mr.Romesh Verma, Advocate.. For the Respondent : Mr. R.K.Gautam, Senior Advocate with Mr. Mehar Chand, Advocate. Kuldip Chand, Judge The appellant was defendant in Civil Suit No. 33/1 of 1993 which was decreed by the learned Sub Judge 1st Class, Nalagarh on 1.12.1995 for Rs.1,10,000/- along with interest at the rate of 14% per annum from 5.8.1991 till realization. In Civil Appeal No. 8-NL/13 of 1996 the learned District Judge, Solan, Camp at Nalagarh on 19.5.1998 affirmed the judgment, decree dated 1.12.1995 of trial Court, hence the defendant has filed the second appeal. 2. The further case is that respondent had filed a suit for specific performance of agreement dated 5.8.1991 on the allegations that the appellant had agreed to sell property more 1 Whether reporters of Local Papers may be allowed to see the Judgment ?Yes. 2 specifically detailed in agreement Ex.PW-1/A in favour of respondent for a total sale consideration of Rs.1,20,000/-. Out of the sale consideration Rs.1,10,000/- was paid to appellant through cheque on 5.8.1991. The sale deed was to be executed on or before 1.5.1992 and the balance sale consideration of Rs.10,000/- was to be paid by respondent to appellant at the time of execution of the sale deed. The time for execution of the sale deed was extended upto 1.7.1992. It was agreed that if the appellant failed to execute the sale deed, she shall be liable to pay damages equal to the amount of Rs.1,10,000/-. The appellant did not execute the sale deed and, therefore, suit was filed for specific performance of agreement. 3. The suit was contested by the appellant. It was pleaded that Ramesh Kumar and Kamlesh Kumar nephews (Bhanjas) of her husband and mother-in-law Smt. Durgi of the appellant asked the appellant to mortgage the suit property in lieu of the loan which was to be taken by the nephews of her husband. In these circumstances, husband of appellant, his nephews, respondent and their associates got the signatures of the appellant on some documents representing those to be simple mortgage deed for securing a loan of Rs.1,10,000/- in favour of aforesaid nephews. The appellant has denied that any amount was paid to her under the agreement. She denied having agreed to sell the suit property to the respondent as claimed by him. It was pleaded that respondent was not an agriculturist and, therefore, the suit was not maintainable. In replication, the respondent reiterated his stand. On the pleadings 3 of the parties, the following issues were framed by the learned trial Court:- 1. Whether the defendant entered into an agreement dated 5.8.91 with the plaintiff as alleged?...OPP. 2. Whether the plaintiff has performed and is still willing to perform his part of the agreement as alleged ? ..OPP. 3. If issue No.1 & 2 are proved in affirmative, whether the plaintiff is entitled for the specific performance of the contract?.. .OPP 4. Whether the suit is not maintainable? ..OPD. 5. Whether the plaintiff has no locus standi to file the present suit?..OPD. 6. Whether the defendant has in fact, mortgaged the suit land in favour of the plaintiff through this agreement as alleged? ..OPD. 7. Whether the defendant is entitled for special cost if so to what extent?..OPD. 8. Relief. The issues No. 1, 2 and 4 were answered in affirmative and issues No. 3, 5, 6 and 7 were answered in negative and the suit was decreed by the trial Court on 1.12.1995. As noticed above, the appeal filed by the appellant in the lower appellate Court was also dismissed. The appeal has been heard on the following substantial questions of law:- 1. Whether there has been mis-reading and mis- appreciation of the oral as well as documentary evidence of record? 2. Whether appellant/defendant being house-woman and simpleton/simple ignorant and not knowing Punjabi in Gurmukhi Script, i.e., illiterate in that sense, was not 4 entitled for the benefit and protection of a “Parada- Nashin Woman” with regard to Ex.PW-1/A, Ex.PW-1/B and Ex.PW-1/C prepared at Nawan Shehar in Punjabi Language in Gurmukhi Script on the material date(s)?” 4. Heard and perused the record. Mr. Romesh Verma, Advocate, learned counsel for the appellant has submitted that the appellant does not know Punjabi language in which Ex.PW-1/A was written. She was told that the document is a mortgage deed, she never agreed to sell the suit property. The document Ex.PW-1/A is the outcome of fraud played upon the appellant. No amount was paid to the appellant under agreement Ex.PW-1/A. The document Ex.PW-1/A is against public policy inasmuch as, it is in violation of Section 118 of the H.P.Tenancy and Land Reforms Act, 1972 (for short ‘Act’) which prohibits the sale of property to a non-agriculturist in Himachal Pradesh. The respondent is a non-agriculturist in Himachal Pradesh. Ex.PW-1/A is uncertain for want of permission under Section 118 of the Act for purchasing the suit property and, therefore, this strikes at the root of the case even if, it is held that in fact an agreement Ex.PW-1/A was executed between the parties. The respondent has not proved readiness and willingness on his part to perform the agreement. The learned counsel for the respondent has supported the impugned judgment, decree and has submitted that the learned Court below has passed the decree which is nothing but refund of the amount paid by respondent to appellant along with interest. 5 5. The substantial questions of law No.1 and 2 are inter- connected and, therefore, both are taken up together for decision. Ex.PW-1/A is the agreement dated 5.8.1991 in between the parties for selling the property mentioned in Ex.PW-1/A for a consideration of Rs.1,20,000/-, Ex.PW-1/B is the receipt dated 5.8.1991 of appellant showing the payment of Rs.1,10,000/- as advance money by respondent through cheque for sale of house property, Ex.PW- 1/C is the endorsement dated 28.4.1992 vide which the date of execution of the sale deed under agreement Ex.PW-1/A was extended by the parties upto 1.7.1992. 6. In the written statement, the appellant has pleaded fraud played by her husband and his nephews for preparing alleged sale agreement instead of simple mortgage deed. There are no specific allegations against the scribes or PW-3 Yash Pal witness for preparing agreement, receipt and extension endorsement. 7. PW1 Ram Labhaya has stated that agreement Ex.PW- 1/A was executed at Nawanshahar on 5.8.1991 for a consideration of Rs.1,20,000/- and an amount of Rs.1,10,000/- through cheque was paid to appellant on that date and receipt Ex.PW-1/B was given by the appellant. The sale deed was to be executed on or before 1.5.1992 but the date was extended vide Ex.PW-1/C on the reverse of the agreement. The petition-writer had read over the agreement dated 5.8.1991 and thereafter it was signed. The witnesses were Yashpal Dhalla and Kamlesh Kumar. He was ready and willing to perform his part of the contract under the agreement but appellant avoided the agreement. He is entitled to the refund of amount of advance money. 6 8. PW-2 Mohan Singh is the scribe of the agreement and has stated that Ex.PW-1/A was written by him on 5.8.1991 at the instance of appellant. It was read over to her and in token of its correctness, she signed the same. The receipt Ex.PW-1/B was also written by him which was also read over to appellant and in token of its correctness, she has signed the receipt. The cheque of Rs.1,10,000/- was also given to appellant in his presence. Nathu Ram husband of the appellant and witnesses were present, who also signed. 9. PW-3 Yash Pal has stated that he knew the husband of appellant, agreement was signed by him as witness. Nathu Ram was present at the time of execution of agreement. The agreement was scribed by PW-2 Mohan Singh, who read over the agreement and thereafter, he, Kamlesh Kumar, Nathu Ram and Surender Devi signed. The payment was made through cheque. Agreement was extended vide Ex.PW-1/C. PW-4 Baldev Ram has stated that vide Ex.PW-4/C (Ex.PW-1/C) the time limit for agreement was extended with the consent of the parties. This was read over. PW-5 Amarjit Singh, Cashier, Nawanshahar Co-operative Bank Evening Branch, has stated that cheque No.43261 dated 5.8.1991 was order cheque of Rs.1,10,000/- in the name of Surender Devi. This cheque was encashed on 5.8.1991. The cheque on the reverse side bears the signatures of Surender Devi alongwith details of the notes. 10. DW-3 Nathu Ram is the husband and special attorney of the appellant. He has stated that Ex.PW-1/A was not read over by the petition writer. Their signatures were obtained on Ex.PW-1/A by representing that it was the mortgage deed. On Ex.PW-1/C on blank 7 spaces their signatures were obtained. Kamlesh Kumar played fraud, witnesses were not present when Ex.PW-1/A etc. were prepared. However, men of respondent were present. In cross- examination, he has stated that written statement was got prepared by him as well as his wife. He left the school in class 10. He had asked the petition writer to read Ex.PW-1/A. He admitted his signatures on agreement. He admitted signatures of his wife on agreement, receipt and extension of time endorsement. He has stated that he has good relations with his wife. 11. The appellant has taken the plea of fraud but particulars of the fraud have not been pleaded by the appellant in the written statement. The appellant has taken a plea that her husband and nephews of the husband had played fraud on her. The presence of the husband at the time of execution of agreement Ex.PW-1/A and receipt Ex.PW-1/B has been proved. It is not believable that the husband of the appellant had played fraud on her inasmuch as, the appellant appointed her husband as special attorney to appear on her behalf in the case. There is no allegation against the scribe and PW-3 Yash Pal witness of the agreement Ex.PW-1/A, receipt Ex.PW-1/B and also extension endorsement Ex.PW-1/C. Simply because the appellant does not know Gurmukhi script in which the agreement Ex.PW-1/A, receipt Ex.PW-1/B are written is no ground to hold that the agreement Ex.PW-1/A and receipt Ex.PW-1/B were not consciously executed by the appellant. DW-3 Nathu Ram has admitted his signatures as well as signatures of his wife on agreement, receipt and extension endorsement. In these circumstances, heavy burden lies on the appellant to show that 8 agreement, receipt and extension endorsement were not executed by her consciously. It has been independently proved on record that appellant in fact had executed the agreement Ex.PW-1/A after it was read over to her by scribe PW-2 Mohan Singh. PW-5 Cashier of the Copoperative Bank has proved the encashment of cheque amounting to Rs.1,10,000/- by the appellant which bears the signatures of the appellant on the reverse side of the cheque. There is a term in the agreement Ex.PW-1/A that if appellant would not execute the sale deed as per agreement, then she would be liable to pay damages equal to the amount of advance money. The appellant has miserably failed to establish that the agreement, receipt and extension endorsement were got executed through her by playing fraud. The two Courts below have concurrently held that an amount of Rs.1, 10,000/- was paid by respondent to the appellant under the agreement. 12. The learned counsel for the appellant has submitted that agreement Ex.PW-1/A is in violation of Section 118 of the Act, therefore, it is against public policy. The respondent was not an agriculturist in Himachal Pradesh, in view of Section 118 of the Act, he could not purchase the property under the agreement, therefore, the agreement was uncertain. It has also been submitted that respondent has not proved readiness and willingness on his part to execute the sale deed as per the agreement. The learned counsel for the appellant has relied Vimlesh Kumari Vs. Sambhajirao, 2008 (2) CCC 153 (S.C.) and Bal Krishna Vs. Bhagwan Das 2008 (3) CCC 153 (S.C.) in support of his submissions. 9 13. The permission under Section 118 of the Act is not required for filing suit for specific performance on the basis of agreement, such permission is necessary in a given case at the time of registration of the sale deed on the basis of decree, if any, passed. I have gone through the agreement Ex.PW-1/A. The agreement does not allow the respondent to deal with the property in the manner as if respondent is owner of property. The agreement is not in violation of Section118 of the Act. The agreement Ex.PW-1/A to purchase the suit property is not uncertain or against the public policy for want of permission under Section 118 of the Act. Only after the agreement steps could have been taken for permission under Section 118 of the Act for purchasing the suit property. The respondent has proved his readiness and willingness to purchase the suit property. Vimlesh Kumari (supra) and Bal Krishna (supra) are not applicable in view of the facts and circumstances of the present case. 14. The two Courts below have not granted the relief of sale of property by appellant in favour of the respondent on the basis of agreement, the decree is virtually in the form of refund of the advance amount which appellant had received from respondent under the agreement. The learned counsel for the appellant has failed to make out any case to show that the Courts below have misread and mis-appreciated oral and documentary evidence. The appellant was helped by her husband at the time of execution of agreement, receipt etc. It has not been proved that Nathu Ram husband of appellant had played fraud upon appellant when 10 documents were executed. Therefore, it cannot be said that the appellant is entitled to the protection of a “Parada – Nashin Woman”. 15. The two Courts below have concurrently recorded a finding of fact against the appellant and no case for interference is made out, the substantial questions of law No.1 and 2 are decided against the appellant. 16. No other point was urged. 17. The result of the above discussion, the appeal fails and is accordingly dismissed with no order as to costs. ( Kuldip Singh ), April 20, 2009, Judge. (GR)