IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Regular Second Appeal No.6 of 1998. Judgment Reserved on: 18.11.2008. Date of decision: 15.12.2008. Hari Nand ….Appellant Versus Gulab Singh & Others ….Respondents Coram The Hon’ble Mr.Justice Dev Darshan Sud,J. Whether approved for reporting ?1 For the Appellant: Mr.Bimal Gupta, Advocate. For Respondent No.5: Ms.Ruma Kaushik, Advocate. Dev Darshan Sud,J. This is the plaintiff’s appeal against the judgment of the learned District Judge, Sirmaur District at Nahan, dismissing his appeal preferred against the judgment and decree of the learned Senior Sub Judge, Sirmaur District at Nahan, declining him to grant specific performance of an agreement Ex.PW- 3/A. The plaintiff had approached the trial Court on the allegations that Sukh Ram, on his behalf and on behalf of his sister Dhanpati and mother Munni Devi as their general power of attorney, had agreed 1 Whether the reporters of Local Papers may be allowed to see the judgement? 2 to sell 3/4th share in the land comprised in Khewat Khatauni No.5/11, Khasra Nos.520/461 and 524/464 in the shape of two plots, measuring 30-16 bighas (3/4th share measures 23-2-0 bighas), situate in Mauja Deothal, Pargana Giri War, Tehsil Pachhad, District Sirmaur, H.P. The plaintiff pleads that he was a resident of village Nohra in Tehsil Pachhad where his house was destroyed by a cloudburst in September, 1988 and he wanted to shift to village Mehlog where the suit land is situated. Sukh Ram was crippled and found it hard to manage the suit land jointly owned by him, his mother and sister. He was suffering from blood cancer and invited the plaintiff to live with him in his house and look after him. Sukh Ram, thereafter expressed his intention of selling the suit land as he was in need of money for his treatment. An agreement to sell for a consideration of Rs.25,000/-, ExPW-3/A, was executed on September 22, 1988 by Shri Sukh Ram on his behalf as also on behalf of his mother and sister as a general power of attorney. This agreement was scribed by one Balwant Singh and witnessed by Ram Kumar and Daulat Ram. A sum of Rs.5000/- was paid at the time of execution of the agreement and the remaining amount was promised to be paid at the time of registration of the deed. The plaintiff pleads that he has become co-owner of the suit land since 4th March, 1989 by purchasing share of 3 the other co-owners, namely, Jeet Singh and Hari Singh. The contesting respondents resisted the suit on the ground that the agreement to sell was a fraudulent document. One crucial aspect pleaded was that Munni Devi had died about 10 years before the institution of the suit; the agreement is the result of fraud and the documents were fabricated in collusion with the scribe. The learned trial Court settled six issues. Issue No.1 was on limitation. Issues No.3 and 4 were relating to the facts as to whether the agreement to sell was a genuine document or not and issue No.5 which was interlinked with these two issues was as to whether a valid power of attorney has been executed on behalf of the sister and mother of Sukh Ram. The learned Court held the suit as being barred by time. On the other issues, while considering Ex.PW-3/A, the trial Court came to the conclusion that the agreement is shrouded by suspicious circumstances. For this purpose the Court relied upon the evidence of PW-5 Ram Kumar, one of the attesting witnesses of the agreement who inter alia stated that the financial condition of the executant was sound. The Court also holds that on the day when the purported agreement was executed, Munni Devi was dead. There was thus no subsisting power of attorney in favour of the executor which was another suspicious circumstance. The Court also 4 holds that the signatures of Sukh Ram are faded and indecipherable. In the totality of the circumstances, the suit was dismissed. In appeal preferred, the learned District Judge, holds that though Munni Devi was dead, but that did not make the document suspicious and secondly that the need of the executant may not have existed but that was his own choice. However, the Court holds that the plaintiff-appellant is not entitled to specific performance of the agreement to sell Ex.PW-3/A as he was not ready and wiling to perform his part of the contract. This appeal was admitted on the following substantial questions of law:- “1. Whether in the instant case agreement to sell Ex.PW-3/A dated 22.9.1988 for immovable property is not specifically enforceable in the suit filed on 29.4.1991 on the principle of that time was the essence of the contract? 2. What constitutes readiness and willingness of the plaintiff to perform his part of the contract in a suit for specific performance of the contract and whether in order to show readiness and willingness to perform his part of the contract in a specific performance suit the plaintiff is actually required to show to the court that he is infact 5 having the requisite amount with him to purchase the property? 3. Even if it is taken that Sukh Ram had no authority on behalf of Dhanpati and Munni Devi to execute the agreement, whether to the extent of share of Sukh Ram, the agreement cannot be enforced? 4. Whether the learned District Judge has misconstrued and mis- interoperated the pleadings, evidence and the view taken is not possible on the basis of material on record? Question No.1: Taking up question No.1 for consideration which goes to the root of the case, learned counsel submits that the agreement to sell Ex.PW-3/A is valid and binding and confers a right on the appellant to have the agreement enforced by a decree of specific performance. This submission needs to be rejected. The learned trial Court on appreciation of the evidence on record has rightly come to the conclusion that the agreement to sell is the outcome of fraud practiced by the appellant herein. It is interesting to note the pleadings of the plaintiff. He pleads that late Sukh Ram was holding a valid general power of attorney on behalf of his mother Munni Devi and sister Dhanpati. Para-3 of the plaint is interesting 6 in which he states that Sukh Ram was a crippled having one leg, suffering from blood cancer and wanted somebody to look after his rights. The pleadings are reproduced for felicity of evidence:- “3. That Shri Sukh Ram was a cripple having one leg. He was also suffering from blood cancer and wanted some body to look after his rights. Shri Sukh Ram invited the plaintiff to live in his house and to look after his fields. Since the Plaintiff was in need of land, Shri Sukh Ram offered to sell the suit land, and as per his offer, an agreement for sale was executed between the parties on 22.9.1988 at Solan, which was scribed by Shri Balwant Singh Document Writer and was signed by the parties in the presence of Sarvshri Ram Kumar son of Shri Karta Ram resident of Kala Ghat and Daulat Ram so nof Shri Phagi Ram resident of Panjola. Shri Sukh Ram had entered into the aforesaid agreement on his own behalf as well as the General Power of Attorney on behalf of his mother Shrimati Munni Devi and sister Shrimati Dhanpatti and had agreed to sell their 3/4th share out of land comprised of Khewat Khatauni No.5/11 Khaasra No.520/461 and 524/464 in two plots measuring 30-16 Bighas which comes to 23-2 Bighas situated in Mauza Deothal, Pargana Giri War, Tehsil Pachhad, District Sirmaur, H.P. as enumerated in the Jamabandi for the year 1982-83 for a sale consideration of Rs.25,000.00 only (Rupees twenty 7 five thousand only). The Plaintiff had paid a sum of Rs.5,000.00 to late Shri Sukh Ram on the date of the execution and the remaining amount of Rs.20,000.00 was to be paid to the vendees at the time of the registration of the sale deed. The Plaintiff was placed in possession of the land described above by late Shri Sukh Ram and the Plaintiff is in actual possession of the same as a `Davedar Mushtri’ (Claimant owner). However, the possession of the plaintiff has not been recorded in the revenue record so far.” There is no evidence on the record to show that Sukh Ram was actually suffering from blood cancer. How and under what circumstances the learned appellate Court holds that the agreement to sell Ex.PW-3/A is not shrouded by suspicious circumstance is itself a question requiring determination because the Court holds that the mere fact that Munni Devi was dead when the agreement to sell Ex.PW-3/A was executed is not a suspicious circumstance. The finding is “… … … … Despite of the death of Munni Devi, Sukh Ram might have executed the agreement for some inexplicable reasons… … … ….” Similarly, the fact that Sukh Ram had no need or necessity for money is also brushed aside only with one line, “… … …Again, Sukh Ram might be having his own reasons for agreeing to sell valuable property in favour of the 8 plaintiff for a lower consideration… … ….” Indisputably, if the plaintiff has to succeed his material part of the pleading that Sukh Ram required somebody to manage his affairs as he was crippled and suffering from blood cancer was required to be proved by leading positive evidence. There is not even an iota of evidence on the record to establish his medical condition. The finding of the learned trial Court that Munni Devi was dead on the day when the agreement to sell Ex.PW-3/A was entered into, itself should have made the appellate Court take notice of the fact that a deeper probe is required but this has been brushed aside by the appellate Court. Coupled with the fact that there was no valid existing power of attorney in favour of the purported seller, the signatures of the seller had neither been proved in accordance with law and were in two different languages, namely, Hindi and English, which were not decipherable, the witness of the plaintiff PW-5 Ram Kumar that the executant was not in need of money has been ignored were sufficient to excite suspicion as rightly held by the trial Court. Now, on reading the judgment of the learned District Judge the inescapable conclusion is that the inconvenient facts have simply been swept aside although the appeal has been dismissed on a different ground. If the document on the basis of which performance of a contract is claimed, is executed under suspicious 9 circumstances or is not genuine, no plaintiff can found his cause on such a document. The learned District Judge who was the first appellate Court, was duty bound in law to have given a finding on these points and not simply to have brushed them aside with two lines assigning the reasons, “some inexplicable reasons”. Surely the appellate Court should have been alive to the fact that these were judicial proceedings which cannot be subjected to speculative reasoning, but conclusions to be founded on established facts and “inexplicable reasons” do not constitute a valid exercise of jurisdiction in establishing existence or non-existence of a fact. I see no reason to differ from the findings arrived at by the learned trial Court on the issue that the agreement was shrouded by suspicion and its due execution has not been proved. In this view of the matter, I hold that Ex.PW-3/A is not a genuine document on which the plaintiff-appellant could found his action. Learned counsel for the appellant places reliance on two judgments of the supreme Court in Balasaheb Dayandeo Naik (dead) through LRs and Others vs. Appasaheb Dattatraya Pawar, (2008)4 SCC 464 and Rameshwar Prasad (dea) By LRs. vs. Basanti Lal, (2008)5 SCC 676, to urge, (a) that the mere pleading that the plaintiff was ready and willing to perform his part of the contract was sufficient to have entitled him to the relief claimed; that is a decree 10 for specific performance and the findings to the contrary by the two Courts below is against settled law; (b) that time is not of the essence in contract of sale of immovable property. In both these decisions, the Constitution Bench decision of the Supreme Court in Chand Rani vs. Kamal Rani, (1993) 1 SCC 519 has been followed and applied. There is no dispute with this proposition of law, but as I have held that if the pleading is taken as a whole, the plaintiff has been unable to establish that the agreement to sell Ex.PW-3/A is valid and genuine. He does not lead any evidence on the allegations made in paragraph-3 regarding the medical condition of the executant Sukh Ram or the need which preceded the execution of such agreement. This is another ground to hold that Ex.PW-3/A was the outcome of fraud. Having held that Ex.PW-3/A is not a genuine agreement and the findings of the District Judge is contrary to the facts on the record, the other question raised, namely, as to whether the plaintiff was ready and willing to perform his part of the contract need not be considered as this point is well settled in the two judgments which are relied upon by the learned counsel appearing for the appellant. Questions No.3 and 4: On questions No.3 and 4 all that need be said is that once the power of attorney executed on 11 behalf of Munni Devi is found as invalid, it is a very strong circumstance to infer that the transaction was never intended to be entered into as the power of attorney would cease to be effective on the death of the executant of such a document. On the other question as to whether the learned District Judge misconstrued and misinterpreted the pleadings and evidence, I find that in-fact he has avoided the findings on the question of fraud etc. and the document being suspicious. This is to the dis-advantage of the respondent-defendant, as the first appellate Court is required to give clear and cogent findings after reassessment and re-appreciation of the evidence. All these questions are, therefore, answered against the appellant. This appeal is accordingly dismissed. There shall be no order as to costs. December 15, 2008. (Dev Darshan Sud) (aks) Judge.