IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RSA No. 279/1998 Reserved on: 16.9.2011 Decided on:27.9. 2011 ___________________________________________________ Jhabe Ram and another. …Appellants. Versus Smt. Maghira Devi and others. …Respondents. ________________________________________________________ Coram: Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 Yes For the appellants : Mr. K.D. Sood, Advocate. For the Respondents : Mr. Y. Paul, Advocate for respondents No. 1 to 3. Mr. Jagan Nath, Advocate for respondent No.6. Respondents No. 4 and 5 already ex parte. _____________________________________________________ Justice Rajiv Sharma, Judge. This Regular Second Appeal is directed against the judgment and decree dated 16.1.1998 rendered by the learned District Judge, Kullu in Civil Appeal No. 65 of 1997. 2. Material facts necessary for the adjudication of this Regular Second Appeal are that the original plaintiff, 1 Whether reporters of the local papers may be allowed to see the judgment? Yes 2 Jindu Ram, predecessor-in-interest of the appellants- plaintiffs, (hereinafter referred to as ‘plaintiff’ for convenience sake) instituted a suit for possession by way of specific performance against the respondents- defendants (hereinafter referred to as ‘defendants’ for convenience sake). Case of the plaintiff was that mother of the plaintiff and defendants was recorded as owner in possession of the land comprising Khasra No. 4646 measuring 1 biswas and Khasra No. 4647 measuring 1-3- 0 bighas, Khata Khatoni No. 329/664 situated in Phati Halan, Kothi Naggar, Tehsil and District Kullu and a four storeyed house was also standing over the suit land. Deceased Smt. Surati Devi, mother of the plaintiff, entered into an agreement to sell the property for consideration of ` 40,000/- on 30.10.1989, out of which a sum of ` 35,000/- was paid by way of earnest money at the time of execution of agreement on 30.10.1989. The remaining sale consideration of ` 5,000/- was agreed to be paid at the time of sale deed in favour of the plaintiff on or before 31.8.1991. Smt. Surati Devi had also executed a will on 14.6.1982 thereby bequeathing the entire property in favour of her sons. She died before 31.8.1991. In these circumstances, sale deed of the property could not be executed by her in favour of the plaintiff. Plaintiff 3 approached the defendants, who are legal representatives of deceased Surati Devi to execute the sale deed of the suit land since they inherited her property. The defendants refused to do so. It is in these circumstances, plaintiff Jindu Ram instituted a suit and after his death, the present appellants were substituted as his legal heirs. 3. The suit was contested by the defendants. According to the defendants, the mother of the parties, deceased Surati Devi, never executed agreement dated 30.10.1989 in favour of Jindu Ram. There was no need for her to execute the sale deed in favour of the plaintiff. According to the defendants, the value of the property was more than ten lakhs. 4. No replication was filed by the plaintiff. Learned Senior Sub Judge framed issues on 20.3.1992. Senior Sub Judge dismissed the suit on 4.9.1997. Plaintiff preferred an appeal before the learned District Judge, Kullu. He dismissed the same on 16.1.1998. Hence, the present Regular Second Appeal. It was admitted on the following substantial questions of law: 1. Whether the learned courts below were right in excluding Ex.PA, the agreement to sell, entered by Surati Devi from consideration on the ground that the same was not duly stamped? 2. Whether the courts below was justified in ignoring Ex.PA on the ground of insufficiently stamped or 4 not being stamped when the document had been exhibited and duty to levy the impounding fee was of the court and the plaintiffs could not be prejudiced for the fault of the court? 3. Whether the agreement to sell Ex.PA was proved to be legal and valid and the plaintiffs were entitled to a decree for specific performance in the facts and circumstances of the case? 4. Whether the courts below have misconstrued the pleadings of the parties and the oral and documentary evidence and wrongly denied the specific performance of the agreement to sell to the plaintiffs and upheld the will Ex.DW-2/A? 5. Whether the will Ex.DW-2/A was valid and genuine and Dola Ram defendant could be held to be the owner of the property in dispute under the will of Surati Devi to the exclusion of the plaintiffs? 5. Mr. Kapil Dev Sood on the basis of the substantial questions of law framed has vehemently argued that the agreement Ex.PA dated 30.10.1989 has been wrongly ignored by both the courts below. He then argued that it was for the Court to determine the penalty to be paid by the plaintiffs after impounding of Ex.PA. He then argued that the ‘will’ Ex.DW-2/A was not genuine and valid. He also argued that both the courts below have failed to take into consideration the amended plaint, which was carried out and allowed by the trial court on 8.10.1993. He finally argued that the plaintiff was always ready and willing to perform his part of agreement dated 5 30.10.1989 but the defendants have refused to do so without any valid reason. 6. Mr. Y. Paul has supported the judgments and decrees passed by both the courts below. 7. I have heard the learned counsel for the parties and have perused the record meticulously. 8. Since all the substantial questions of law are interconnected and interlinked, therefore, the same are taken up together for determination to avoid repetition of discussion of evidence. 9. In the instant case, an application was filed by the plaintiff for amendment of plaint. It was allowed on 8.10.1993 and the defendants were permitted to file the written statement. The application was allowed subject to payment of ` 100/-. The learned counsel appearing on behalf of the defendants sought further time to file amended written statement on 21.10.1993 and 8.11.1993. Thereafter, the learned counsel apprised the Court that the written statement filed to the un-amended plaint be read as written statement to the amended plaint. Thus, the conclusion drawn by the learned trial court that the amended plaint could not be permitted to be filed cannot be accepted. The learned Advocate had prayed time to file the written statement. Moreover, Mr. K.D. Sood has 6 placed on record copy of the amended plaint during the pendency of this appeal and the defendants have also filed written statement to the same. 10. One of the plaintiffs, Jhabe Ram, has appeared as PW-1. According to him, the disputed property was sold by his grand-mother Surati Devi to his father late Sh. Jindu Ram. It was for a sale consideration of ` 40,000/- and earnest money of ` 35,000/- was paid on the date when the agreement was executed. He has admitted that he was not present at the time of execution and making of payment of earnest money. He did not deny that his grand-mother Surati Devi had executed a ‘will’ of the entire property in favour of her sons on 14.6.1982. It is admitted case of the parties that deceased Surati Devi had executed ‘will’ in favour of her sons of the entire property on 14.6.1982. This in fact, has been pleaded by the plaintiff in the plaint. PW-1 has also admitted that his father Jindu Ram used to live separately from his grand- mother. According to him, his father used to maintain and look after his grand mother. The age of Surati Devi at that time was 76 years. According to him, Surati Devi was suffering from ailment. She was in need of money. It is in these circumstances, she sold the land. According to him, the sale deed could not be registered since his father was 7 not having money for meeting registration charges though his father was having remaining sale consideration of ` 5,000/-. 11. PW-2 Ram Chand has scribed the agreement Ex.PA. According to him, he has scribed the agreement at the instance of deceased Surati Devi in the presence of PW-3 Chuni Lal and PW-4 Ram Lal. The consideration was of ` 40,000/-. Earnest money of ` 35,000/- was paid to the deceased Surati Devi. 12. PW-3 Chuni Lal is one of the marginal witnesses of agreement Ex. PA. He has admitted in his cross-examination that he was called on the spot by the original plaintiff Jindu Ram. PW-4 Ram Lal is another witness of agreement Ex. PA. 13. DW-1 Bala Ram has deposed that no agreement was entered by his mother Surati Devi with the plaintiff, thus, there was no question of receiving earnest money of ` 35,000/- by his mother from the plaintiff. According to him, his mother had executed a ‘will’ of her property in favour of her sons vide, Ex.DW-2/A. He also deposed that the plaintiff Jindu Ram did not look after and maintain their mother. Relations between Surati Devi and the plaintiff were not cordial. 8 14. Mr. K.D. Sood on the basis of amended plaint has argued that his client was always ready and willing to perform his part of contract Ex. PA. However, the execution of agreement Ex. PA dated 30.10.1989 is doubtful. The document is not properly stamped. The document was impounded by the trial court. The same could be released only after the payment of penalty. Admittedly, no penalty has been paid by the plaintiff. The submission of Mr. K.D. Sood that the trial court had not asked the plaintiff to pay amount of penalty cannot believed. It was for the plaintiffs to pay the penalty after getting the amount determined from the court. 15. A bare perusal of agreement Ex. PA established that the document is not genuine. The first page of the document is written with gaps in sentences. However, on the reverse page big space has been kept by PW-2 Ram Chand. It appears that thumb impressions of deceased Surati Devi were obtained firstly and thereafter the document has been prepared. PW-2 could not disclose from where the plaintiff Jindu Ram had arranged a sum of ` 35,000/-. He has also admitted that he remained tenant of the plaintiff. PW-3 Chuni Lal is the marginal witness. He could also not explain from where the plaintiff had arranged a sum of ` 35,000/-. He is cousin of the 9 plaintiff. PW-4 Ram Lal could also not explain where from the plaintiff had arranged a sum of ` 35,000/-. He is also tenant of the plaintiff. According to PW-3, the document was executed on the third storey of the house. PW-4 has deposed that the document was written on the second storey. The document has not been written by a Petition Writer. It has been scribed by PW-2 Ram Chand. The first appellate court has also made observation that it could not be gathered from the plaint that the plaintiff was ready and willing to perform his part of contract towards execution of sale deed. The first appellate court has not looked into the Zimini orders. The defendants had sought time to file the reply to the amended plaint and had prayed before the trial court on 23.11.1993 to adopt the written statement filed to the un-amended plaint. 16. What emerges from the observations and discussions made hereinabove is that agreement dated 30.10.1989 is not a genuine document. There is variance in the statements of PW-1, PW-2, PW-3 and PW-4. Deceased Surati Devi was aged about 76 years. She was not looked after by the plaintiff. There was no occasion for her to sell her property to her one of the sons. The plaintiff not led any tangible evidence from where he got a sum of ` 35,000/-. Two witnesses were also tenant of 10 plaintiff Jindu Ram. There is variance in the statements of PW-3 and PW-4 whether the document was written on second storey or third storey. The agreement was executed on 30.10.1989. There is no explanation why it was not executed for a period of two years. Since the agreement has not been executed on 30.10.1989 in accordance with law, the plea taken in the amended plaint that the plaintiff was ready and willing to perform his part of contract is of no significance. The willingness and readiness can only be gone into, if the agreement is validly executed. It is evident that thumb impressions of Surati Devi were obtained on blank papers and thereafter document was prepared. The style of writing of document Ex.PA also makes the execution doubtful. 17. Defendants have placed on record will Ex.DW- 2/A. It has been duly proved by Diwan Chand, Advocate. According to him, the will was executed by Surati Devi in favour of her sons. He was one of the marginal witnesses. He was not cross-examined on material particulars. It is evident from the recital contained in Ex.DW-2/A that the suit land comprised under Khasra No. 4646 measuring 1 biswas and khasra No. 4647 measuring 1-3 bighas had been specifically bequeathed by Smt. Surati Devi in favour 11 of defendant Dola Ram. Defendants have duly proved the execution of ‘will’ Ex.DW-2/A. 18. Accordingly, in view of the observations and discussions made hereinabove, there is no merit in Regular Second Appeal and the same is dismissed. There shall, however, be no order as to costs. (Justice Rajiv Sharma), Judge. 27.9.2011 *awasthi*