IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. R.S.A. No.1533 of 2009 (O&M) Date of Decision: 20.4.2009 Rachhpal Singh and others. ....... Appellants through Shri S.N.Saini, Advocate. Versus Pushpa and others. ....... Respondents through Nemo. CORAM: HON'BLE MR.JUSTICE MAHESH GROVER .... 1. Whether Reporters of Local Newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? .... Mahesh Grover,J. This Regular Second Appeal is directed against judgments and decrees dated 5.9.2006 and 6.2.2009 passed respectively by the Civil Judge (Senior Division), Jalandhar (hereinafter described as `the trial Court') and the Additional District Judge, Jalandhar (referred to hereinafter as `the First Appellate Court') whereby the suit of the plaintiffs – Ram Lal (since deceased) and Rajiv Singh was decreed and the appeal of defendant nos. 1 to 3 – appellants was dismissed. Ram Lal, the predecessor-in-interest of present respondent nos. 1 to 5 and Rajiv Singh- respondent no.6 had preferred a suit for specific R.S.A.No.1533 of 2009 -2- .... performance against the appellants, respondent no.7 and Harbans Kaur widow of Dalip Singh, who has since expired. It was pleaded that Dalip Singh was owner of land measuring 16 kanals fully detailed and described in the head note of the plaint. He had entered into an agreement to sell the said land with Ram Lal and Rajiv Singh on 28.7.1996. The sale consideration was agreed at the rate of Rs.28,25,000/- per acre. At the time of execution of the agreement, a sum of Rs. 6 lacs was paid as earnest money to Dalip Singh by Ram Lal and Rajiv Singh in the presence of marginal witnesses. The date of execution and registration of the sale deed was fixed as 5.8.1997. It was further stipulated in the agreement that if the vendees failed to get the sale deed executed and registered in their favour up to the date fixed, the earnest money paid by them shall stand forfeited and in case, the vendor failed to do so, then the vendees shall be at liberty get the agreement enforced through the court of law at his expenses. As per the agreement, a further sum of Rs.16,00,000/- was to be paid by 5.12.1996 and another sum of Rs.14,00,000/- by 5.4.1997 and the vendor was to get the land demarcated before the execution and registration of the sale deed and the balance consideration was to be paid accordingly. In compliance of the agreement to sell, Ram Lal and Rajiv Singh paid a sum of Rs.16,00,000/- on 5.12.1996 to Dalip Singh, who, after acknowledging the same, executed a registered general power of attorney dated 5.12.1996 and also a Will of the same date in their favour in respect of land measuring 4 kanals and 10 marlas out of the above said land. The power of attorney was irrevocable. R.S.A.No.1533 of 2009 -3- .... Ram Lal and Rajiv Singh had further paid a sum of Rs.14,00,000/- on 7.4.1997 to Dalip Singh, who again acknowledged the same and executed a registered power of attorney dated 7.4.1997 and a Will of the same deed in their favour in respect of 4 kanals of land. The said power of attorney was also irrevocable. Dalip Singh died on 26.8.1997. It was pleaded that his legal representatives were approached by Ram Lal and Rajiv Singh to get the sale deed executed and registered as per the agreement to sell, but they refused to do so. It was further pleaded that although on the basis of the Wills executed by Dalip Singh, they had become owner of the land measuring 8 kanals 10 marlas, but to avoid any ambiguity, they were instituting the suit for specific performance of the agreement to sell in respect of the entire land. It was averred that they always remained ready and willing to perform their part of contract which was reflected from the fact that they had made payments subsequent to the agreement to sell and they were possessed of sufficient means to pay the balance amount also. It was also averred that before his death, Dalip Singh had delivered possession of the entire land to Ram Lal and Rajiv Singh after he had received the sum of Rs.14,00,000/- on 7.4.1997. It was pleaded that Ram Lal & Rajiv Singh served a telegraphic notice dated 26.10.1998 upon the legal representatives of Dalip Singh to execute the sale deed in their favour and also remained present in the office of Sub Registrar with the requisite amount, but no one turned up and they got themselves marked present there. A legal notice dated 1.11.1998 was R.S.A.No.1533 of 2009 -4- .... also said to have been served upon the legal representatives of Dalip Singh for execution and registration of the sale deed, but all in vain. Ram Lal and Rajiv Singh also got their presence marked in the office of Sub Registrar,but none them came present and ultimately refused to execute and register the sale deed and also threatened to alienate the land in question. Upon notice, the appellants appeared and filed their written statement resisting the suit, whereas respondent no.7 and Smt. Harbans Kaur did not appear despite service and were proceeded against ex parte. In their written statement, the appellants took preliminary objections that the suit was not maintainable; that it was bad for mis-joinder & non-joinder of necessary parties; that the property was wrongly described; that the site plan attached with the plaint was incorrect and that the suit was bad on account of act & conduct of Ram Lal and Rajiv Singh. On merits, it was admitted that Dalp Singh was owner of the land measuring about six acres and that he had expired on 26.8.1997. However, it was denied that respondent no.7 and Harbans Kaur were his legal heirs. They had pleaded that Dalip Singh had executed a registered Will dated 7.5.1993 in their favour while in his sound disposing mind and that no agreement to sell was executed by him in favour of Ram Lal and Rajiv Singh as he was an old man and was ill for four years prior to his death. They had further pleaded that Dalip Singh was not in his senses and could not differentiate his good and bad and as such, was not capable of entering into any contract; that by taking undue advantage of his illness, Ram Lal & Rajiv Singh had R.S.A.No.1533 of 2009 -5- .... got prepared documents fraudulently; that no amount was ever received and no bargain was struck ; that the suit land in the hands of Dalip Singh was joint Hindu family/ coparcenary/ ancestral property and he was not in need of any money; and that they had interest in the suit land by birth. The execution of alleged agreement to sell and the Wills in favour of Ram Lal & Rajiv Singh was denied by them. It was also denied that Ram Lal & Rajiv Singh had become joint owners of 8 kanals and 10 marlas of land. The alleged agreement to sell and the Wills in favour of Ram Lal & Rajiv Singh were stated to be the result of forgery and fabrication as Dalip Singh was not in his senses since 1994. The receipt of any notice or telegram on behalf of Ram Lal & Rajiv Singh was also denied. They had pleaded that they were the owners in possession of the suit land and they had a right to deal with the same as they wished. The other averments as raised in the plaint were also refuted. The parties went to trial on the following issues:- 1. Whether Dalip Singh executed an agreement to sell the suit land dated 28.7.96?OPP 2. Whether the plaintiffs are entitled to decree for possession by specific performance?OPP 3. If issue No.2 is not decided in favour of plaintiffs, whether in alternative, the plaintiffs are entitled to recovery of Rs.56,50,000?OPP 4. Whether the suit property is not correctly described? If so, R.S.A.No.1533 of 2009 -6- .... to what effect?OPD 5. Relief. After appraisal of the entire evidence before it, the trial Court concluded that the agreement to sell was validly executed and was proved on record. The payment of the amount which was said to have been paid by Ram Lal & Rajiv Singh was also found to have been established. Similarly, the readiness and willingness of Ram Lal & Rajiv Singh to perform their part of contract was also found to have been proved. Accordingly, the suit was decreed and the appellants as well as respondent no.7 & Harbans Kaur were directed to execute and get registered the sale deed on receipt of balance sale consideration. Feeling aggrieved, the appellants filed an appeal which was dismissed by the First Appellate Court and the findings of the trial Court were affirmed. Hence, this Regular Second Appeal. Learned counsel for the appellants contended that the findings recorded by the Courts below are erroneous and deserve to be set aside. He further contended that there was no agreement to sell executed by Dalip Singh and even if, it is assumed that such an agreement was executed, then by subsequent act and conduct by which power of attorneys and Wills were executed, it was to be inferred by the Court that earlier agreement to sell came to an end and, therefore, it was unenforceable in the eyes of law. Reference was made to Section 62 of the Contract Act (for short, `the Act'), R.S.A.No.1533 of 2009 -7- .... which reads as under:- “62. Effect of novation, rescission and alteration of contract.- If the parties to a contract agreed to substitute a new contract for it, or to rescind or alter it, the original contract need not be performed.” I have thoughtfully considered the contentions of the learned counsel for the appellants and have gone through the impugned judgments. In a suit for specific performance, three essential ingredients which have to be established, are – (i) there should be validly executed agreement to sell; (ii) passing of consideration pursuant to such agreement should be conclusively established;and (iii) willingness and readiness of the vendee to perform his part of contract should also be established. If the evidence on the record in the instant case is to be tested to see as if the aforementioned ingredients have effectively been established by the vendees, then the irresistible answer to the question is in the affirmative. Ram Lal, one of the vendees, had appeared in the witness box as PW1 and deposed that they had paid a sum of Rs.6 lacs at the time of execution of agreement to sell to Dalip Singh on 28.7.1996 in the presence of Som Nath and Com. Sansar Chand, who had also signed as marginal witnesses. He had also testified that they had paid the subsequent amounts of Rs.16 lacs and Rs.14 lacs on 5.12.1996 and 5.4.1997. Som Nath and Sansar Chand had also appeared as PW3 and R.S.A.No.1533 of 2009 -8- .... PW2 and admitted the payment of money to Dalip Singh in their presence. Similarly, PW4-Mela Ram deposed that power of attorneys Exhibits P3 and P7 were executed in his presence. He further deposed that documents Exhibits P4 and P6 were also executed in his presence. But, what clinches the issue is the testimony of PW5-Anil Sharma, an employee of the Punjab National Bank. He established by his evidence that Dalip Singh had deposited Rs.16,00,000/- in his account bearing no.414 with their bank on 5.12.1996. To the similar effect is the deposition of PW6-Jasbir Singh, Computer Operator of the same bank. He stated that Rs.7 lacs were deposited in the shape of FDR in account no.471/2 by Dalip Singh and another sum of Rs.7 lacs was deposited as FDR in the name of Jasbir Singh son of Dalip Singh in account no.470. He further proved the documents pertaining to the FDRs, close of the accounts and transfer of the amounts to other accounts. In short, the amounts as paid by the vendees was traced in the accounts of Dalip Singh and his son. Similarly, there are documents showing that notices were sent to the legal representatives of Dalip Singh and also the telegram. The record pertaining the marking of presence of the vendees in the office of Sub Registrar has also been proved. Thus, all the three ingredients stand established by cogent evidence by the vendees. The appellants have merely set up a plea of denial and even R.S.A.No.1533 of 2009 -9- .... though, fraud was mentioned in their defence, yet, it was not qualified by any particulars. No evidence was also adduced regarding the fraud. It is a settled principle of law that the person, who pleads fraud, has to prove it by bringing sufficient material on record. In this view of the matter, the case as set up by the appellants seems to be without any merit and so is the contention of the learned counsel for the appellants regarding Section 62 of the Act. If the provisions of Section 62 of the Act are to be seen, then it is apparent that they talk of novation, rescission and alteration of the contract, implying thereby that the person, who sets up a defence of substitution or novation or rescission of an earlier contract, he has to first admit the existence of a contract. In the instant case, it is not the case of the appellants that the agreement to sell was executed and thereafter, the terms thereof were varied to say that the earlier contract stood superseded by the conduct of the parties and the subsequent agreement was entered between them, but their case was a plea of denial simpliciter and also to say that the agreement if existing was a result of fraud. If the agreement was result of fraud, then the fraud should have been established. If the agreement was to be denied, then the appellants could not have derive any benefit of the provisions of Section 62 of the Act. Both these please are, therefore, failing pleas and I am of the opinion that the appeal is totally devoid of any merit, especially when the vendees have established the payment of amounts to Dalip Singh as part of R.S.A.No.1533 of 2009 -10- .... the total consideration and the plea of mere denial is only reflective of the dishonest intention of the appellants. On the basis of the above discussion, no substantial question of law arises for determination in this appeal which is held to be devoid of any merit and is dismissed. April 20,2009 ( Mahesh Grover ) “SCM” Judge