J.C. SHAH, J.
1. The following genealogy explains the relationship between some of the persons who figure in this litigation:
2. The decendants of Brajagopal Mukherjee owned a house at Monghyr in the State of Bihar. Since 1946, Ram Kishun Singh and Deb Chandra Prasad Singh were occupying the house as tenants at a monthly rental of Rs 40. In May 1949 the tenants stopped paying rent. By agreement, dated January 17, 1950, the tenants agreed to purchase the house from the owners, Amarendra, Amalendu, Nirmalendu and Bimalendu for Rs 13,000. The sale deed was to be completed by May 30, 1950. A sum of Rs 500 paid by the tenants as earnest money was to stand foreited if the transaction was not completed. The tenants failed to pay the balance of the consideration and to take the sale deed, the owners thereupon claimed to have forfeited the earnest money.
3. In a proceeding initiated by one Amarendra for and on behalf of himself and the other owners before the House Controller, Monghyr, an order of eviction was made against the tenants. The order of the House Controller was confirmed by the Collector, Monghyr, on July 20, 1953, and the tenants were given four months to vacate the premises. During the pendency of these proceedings, Amarendra died.
4. On January 5, 1954, the tenants instituted Suit No. 3 of 1954 in to Court of the Subordinate. Judge, First Court, Monghyr, against Amalendu, Nirmalendu and Bimalendu — “the defendants” — for a decree for specific performance of an agreement, dated August 29, 1953, for sale of the house for Rs 13,000. It was the case of the tenants that the parties were dissatisfied with the order of the Collector and negotiations were started and ultimately an agreement was reached on August 1, 1953, that the property be sold by the defendants for Rs 13,000; that the agreement was engrossed on a stamp paper on August 1, 1953 and on August 29, 1953, it was executed by the parties; that under the agreement an amount of Rs 7500 was paid towards consideration and taking into account the sum of Rs 500 paid under the earlier agreement, the balance of Rs 5000 was to be paid at the time of registration of the sale deed by the end of December 1953; that the tenants also paid Rs 2080 being the rent in arrears since May 1949 and that the rent accruing due after August 1953, was to be paid at the time of registration of the sale deed.
5. The defendants denied the negotiations for sale of the house after the order passed by the Collector, the engrossment of the agreement on August 1, 1953 and execution thereof on August 29, 1953. They also denied that they had received any money from the tenants and contended that the agreement set up by the tenants was fabricated to support a false claim. The defendants filed Suit No. 263 of 1954 for damages for wrongful use and occupation of the premises against the tenants.
6. The two suits were heard together. The learned Trial Judge dismissed the suit for specific performance, and decreed the claim for compensation for wrongful use and occupation of the house. Against the judgments in the. two suits, appeals were preferred which were ultimately tried by the High Court of Patna. The appeal from the decree in Suit No. 263 of 1954 was dismissed for non-prosecution. The High Court set aside the order of dismissal of the tenants' Suit No. 3 of 1954 and decreed specific performances of the agreement on the tenants depositing in Court Rs 5000 within the time fixed in that behalf. The High Court held that the defendants had negotiated the agreement of sale and had executed it on August 29, 1953 and had received Rs 7500 under the agreement and Rs 2080 as rent in arrears. Against the decree passed by the High Court in Suit No. 3 of 1954 this appeal is preferred by the defendants with special leave.
7. At the trial before the Subordinate Judge in support of the claim for specific performance, besides Ram Kishun Singh, two attesting witnesses to the agreement. Deep Narain Prasad a lawyer practising at Monghyr who, it was claimed, had prepared the draft of the agreement, and Abinash Chandra Verma who is alleged to have engrossed the agreement, and a handwriting expert Nasrat Hussain were examined as witnesses by the tenants. The two attesting witnesses deposed to the terms of the agreement and execution thereof, and said that in their presence Rs 7500 were paid by the tenants as part of the consideration for sale of the house and Rs 2080towards rent. Nasrat Hussain said that in his opinion the signatures on the deed were “genuine signatures” of Amalendu, Nirmalendu and Bimalendu.
8. The defendants Amalendu, Nirmalendu and Bimalendu appeared as witnesses. They also examined witnesses to prove that they were not, and could not be, present in Monghyr at the time of the alleged negotiations for sale and the engrossment of the agreement on August 1, 1953 and on August 29, 1953. Mohamed Hanif a handwriting expert was also examined by them. The witness said that in his opinion the signatures on the agreement purporting to be of the defendants were not genuine.
9. The trial Judge on a consideration of the evidence held that the evidence in support of the case of the tenants was unreliable and the agreement relied upon by the tenants was forged. With that view the High Court disagreed. The learned Judges of the High Court were apparently impressed by the testimony be Deep Narain Prasad and the circumstance that the tenant Ram Kishun Singh was not specifically asked about the person who negotiated on behalf of the defendants for sale. In their view the evidence about the alleged absence of the three defendants from Monghyr on August 1, 1953 and August 29, 1953 “was of not much significance”.
10. This is an appeal with special leave, but in our view, substantial injustice has resulted because the High Court has failed to consider several important circumstances, important pieces of evidence and misread parts of the evidence, and we have thought it necessary to reappraise the evidence.
11. It is necessary to scrutinise with some care the story of the tenants about the execution of the agreement. An order was made by the Collector on July 20, 1953, directing the tenants to vacate and deliver possession of the premises within four months. The tenants claim that two or three days before August 1, 1953, negotiations were again started between them and the defendants, that the terms of the agreement for sale of the house were orally settled on August 1, 1953 and were engrossed on a stamp-paper also purchased on that date; and that on August 29, 1953, the agreement was executed by the three defendants. In the agreement it is recited that the price for sale of the house was settled at Rs 13,000; that the three defendants had received Rs 7500, besides Rs 500 already received by them on the date of the previous agreement from the tenants,; that the defendants will continue to treat the tenants as occupying the house at a monthly rental of Rs 40; that the tenants will continue to live on the same terms and conditions till the execution of the sale deed; that the tenants had cleared up all rent due up to August 1953 and that the rent from September, 1953, will be paid at the time, of registration of the sale deed. These recitals indicate that Rs 7,500 being part of the price and Rs 2080 being rent in arrears were paid on or before August 1, 1953. The agreement was executed, according to the tenants, on August 29, 1953. According to the recitals in the agreement Rs 9580 were paid by the tenants on or before August 1, 1953, under the terms of the agreement, but there was not even a slip of paper taken from any of the defendants acknowledging receipt of the money. The agreement was not executed by the defendants till August 29, 1953, even on the tenants' case. The story that the tenants parted with this large sum of money without taking any receipt from the defendants is highly improbable. Evidently the defendants had claimed to forfeit the amount of Rs 500 which was received by them under the earlier agreement dated January 17, 1950 and stay had taken steps to secure an order in ejectment against the tenants. If after the order in ejectment the tenants were anxious to purchase the house, and were willing to pay Rs 7500 as part of the price and Rs 2080 due for rent, as prudent persons they would have asked the defendants to acknowledge in writing the receipt of the money, and waiver of forfeiture of Rs 500 previously received. The recitals in the agreement until it was executed could serve no purpose. Such a recital incorporated in an agreement engrossed on a stamp-paper purchased by Ram Kishun Singh could have no value whatever. The relations between the parties were not cordial. Since the year 1949 the tenants had not paid any rent. The previous agreement for sale was not carried out by the tenants and thereafter a proceeding for an order in ejectment was commenced, and was decreed. It would be difficult to believe that the tenants who are businessmen accustomed to the ways of the world would part with a large sum of money without obtaining from the defendants a writing acknowledging receipt of the amount.
12. Between the averments made in the plaint, the recitals in the agreement and the evidence there are serious discrepancies. In the plaint, it is averred that the agreement was executed on August 1, 1953; it is further averred that Rs 7500 were paid to the defendants besides Rs 500 already received by them. Witness Abhay Narain Singh an attesting witness deposed that Rs 7500 as part of the consideration for sale, and Rs 2080 as rent, were paid in his presence by Ram Kishun Singh to Nirmalendu when the defendants executed the agreement. The tenant Ram Kishun Singh also deposed that the amount of Rs 7500 was paid on the date of the execution of the agreement. Witness Rambadan Singh another attesting witness deposed that at the time of the execution of the agreement Rs 9580 were paid in his presence — Rs. 7,500 being part of the consideration and Rs 2080 towards rent. There is clear discrepancy between the recitals in the agreement Ext. 1/a and the evidence given by the witnesses. Apparently Ram Kishun Singh and the witnesses realised that their story that payment of a large sum of money before the agreement was executed by the defendants was not supported by any documentary evidence, and may be regarded as highly improbable. They therefore adjusted their story and asserted contrary to the recitals in the document that payment was made on August 29, 1953. The High Court did not consider this vital discrepancy between the recitals in the document and the evidence given in the trial court and the recitals made in the plaint.
13. There is another very important circumstance of which full significance does not appear to have been appreciated in the High Court. The first agreement, dated January 17, 1950, was executed by Amarendra, Amalendu, Nirmalendu and Bimalendu. That agreement would evidently be in the possession of the tenants. Amarendra died in 1952, The tenants knew that the property belonged to the three sons of Brajagopal Mukherjee including Amarendra, and that Amarendra had a third share in the property. Amarendra had filed the suit for and on behalf of all the other owners of the house, and had obtained an order in ejectment against the tenants. Amarendra thereafter died and his interest devolved upon his daughter Sudha. It is highly improbable that the tenants would part with a large sum of money without ensuring that under the agreement they were to get the entire property and were not landing themselves into another litigation. In the agreement there is a recital about the interest of Amarendra, in the house and the proceeding in ejectment. The agreement then abruptly recites that the defendants had agreed to sell the house for Rs 13,000. Amarendra's daughter Sudha had prima facie title to a third share, and she had in her favour an order passed by the Collector directing the tenants to vacate and deliver possession of the premises on or after November 20, 1953. Sudha in the absence of any agreement binding her could enforce the order in ejectment. The High Court appears to have lightly brushed aside that circumstance by observing that the decree for specific performance will not bind Sudha and her interest in the house, if any. The primary question is not of the legal effect of the agreement, but of the probability of the tenants parting with a large sum of money without ensuring themselves that the defendants had authority to convey title to the entire house. There is force in the argument of counsel for the appellants that the tenants had with them the signatures of the three defendants, with the aid of which Ext. 1/a could be fabricated. But they could not secure a signature of Sudha. They, therefore, ignored her interest in the property, and incorporated recitals in the agreement as if only the defendants were owners of the house.
14. Ram Kishun Singh, it is said, is carrying on business of a building contractor. What the extent of his business is, is not stated. But, if failure to pay rent for more than four years is a criterion, he must have been in financial difficulties. If the tenants had paid Rs 7500 some entry from their own books of account would have been forthcoming. A similar entry with regard to Rs 2080 paid as rent would also have been forthcoming. It is said that the amount was paid in cash. The tenants are businessmen and not unsophisticated villagers; it is reasonable to believe that in a transaction where substantial amounts are involved, to protect their interest, the tenants, would pay the amounts by cheque or by Hundi, or at least may obtain an acknowledgment in writing evidencing receipt of the money. But if, as is recited in the agreement, the amount of Rs 9580 was already paid at the time of the negotiations or the engrossment of the agreement, between August 1, 1953 and August 29, 1953, on the tenants case there was not a piece of paper acknowledging receipt of the amount said to have been paid by Ram Kishun Singh to the defendants.
15. It is in the light of these circumstances that the positive evidence led by the defendants that Amalendu, Nirmalendu and Bimalendu were not and could not be present in Monghyr either on August 1 or on August 29, 1953, assumes significance. It was specifically the tenants' case, as deposed to by Ram Kishun Singh, that the negotiations were carried on with Nirmalendu. In his examination-in-chief Ram Kishun Singh stated that talks for compromise took place between the tenants and the defendants and that the defendants said that they were in need of money, and if they were paid “some money” they would execute another agreement in addition to the previous agreement. He further stated that the talks were finalised to sell the house for Rs 13,000 and a deed of agreement was executed. On the date of its execution, the tenants paid Rs 7500 to the defendants this was exclusive of Rs 500 which was paid at the time of the first agreement; besides the sum of Rs 7500 the tenants paid the rent due till that date. With whom the negotiations were carried on was not stated by Ram Kishun Singh. In cross-examination he stated that talks regarding the second agreement had taken place about a month be is execution of the agreement; that the agreement was engrossed two three days after the talks were finalised; that Nilu (Nirmalendu) had brought to him the draft agreement on a plain paper drafted by his lawyers; that he kept the draft with himself, but he did not know who had drafted the agreement, because he did not enquire about the same from Nilu; and that only the witness and Nilu were present when the talks for the second agreement took place and were finalisd. He further stated:
“I had shown the draft agreement brought to me by Nilu Mukherjee to my lawyer Jamuna Babu in the Court premises. Jamuna Babu approved the draft. No one else was present when I showed the draft to Jamuna Babu. Even Nilu Mukherjee was not present there, …. Only Nilu Mukherjee, myself and the typist were present when the agreement Ext. 1/a was typed. Abinash Prasad was the typist. I have taken work from him as well in this suit.
Rambadan Babu, the defendants are plaintiffs and Abhay Narain Singh alone were present when Ext. 1/a was executed. Nilu Babu read out the agreement at that time. Accounts of rent due were also then taken. At that very time I got the area of the land measured on the map by Abhay Babu.”
This was a clear statement made by Ram Kishun Singh that the negotiations were carried on with Nirmalendu, that the agreement was engrossed by the typist in the presence of Nirmalendu; and that Nirmalendu had handed over the draft of the agreement which was shown by Ram Kishun Singh to his lawyer. Nirmalendu however led evidence to show that he was not and could not be present in Monghyr either on August 1, 1953, or on August 29, 1953. In his evidence Nirmalendu stated that he did not enter into any agreement with the tenants either on August 1, 1953 or on August 29, 1953, to sell the house; that it was not true that the tenants paid any sum on August 1, 1953, or on August 29, 1953; that the defendants did not execute on August 29, 1953, the agreement Ext. 1/a; that the agreement did not bear either his signature or the signature of his brothers Bimalendu and Amalendu and that the agreement was not genuine. He stated that he did not know Deep Narain Prasad the lawyer, that he never went to the house of Deep Narain Prasad; and that he had never instructed any lawyer to get a draft agreement prepared.
16. Witness Amar Kumar Basu who is an employee of the Eastern Railway at Sealdah Railway Station produced muster roll entries recorded by him showing that between July 26, 1953 and July 31, 1953, Nirmalendu was present on duty at Sealdah. He further stated that on August 29, 1953, Nirmalendu was “on rest”, and that on August 30 and 31, 1953, he was ill. Even though in the entry, dated August 1, 1953, it was shown that Nirmalendu was on rest under the roaster, the entry showed that he was required to play in a football match in Calcutta for the Railway. There is evidence on the record that Nirmalendu was Vice-Captain of the football team playing for the Railway. There is also evidence to show that Bimalendu and Amalendu were not, and could not be, present in Monghyr on August 29, 1953. This evidence could not be lightly brushed aside. But the learned Judges of the High Court in their judgment observed that Ram Kishun Singh “did not speak which of the defendants, or all of them, took part in the compromise talks”, and there was nothing “in cross-examination to clarify that point”. The learned Judges then referred to the evidence to show that Nirmalendu could not have been present either on August 1, 1953, or August 29, 1953 at Monghyr to participate either in the compromise talks or to execute the agreement and observed:
“Without bringing into evidence anything to indicate that the plaintiffs carried on those compromise talks with Nilu Mukherjee previous to the 1st of August, 1953, the defendants do not and cannot get any real assistance from Ext. 1 series. It may be that Nilu may not have come to Monghyr on any of these dates prior to the 1st of August and his other two brothers, or one of them, may have carried on negotiations with the plaintiffs. It was for the defendants to elicit in the cross-examination of PW 1 which of the defendants, according to the plaintiff, took part in the compromise talks. Having failed to do that, it is too late to contend that the unlikely presence of one of the defendants at Monghyr on those days would falsify the plaintiffs' case. It is abundantly clear that the plaintiffs were putting up stiff fight with the defendants in the House Rent Control case and they were anxious to purchase the house from them, as was evidenced by the earlier agreement of January 1950.”
Attention of the High Court was probably not invited to this part of the evidence of Ram Kishun Singh. It was clearly the case of Ram Kishun Singh that negotiations were carried on with Nirmalendu, that the stamp-paper was purchased and the agreement was engrossed in the presence of Nirmalendu, that Nirmalendu had handed over the draft agreement en the basis of which the final agreement was executed, and it was Nirmalendu who was present on August 29, 1953 at Monghyr to execute the agreement together with his two brothers.
The trial court refused to place any reliance upon the testimony of witness Deep Narain Prasad. The learned Trial Judge observed:
“It is indeed a great pity that Shri Deep Narain Prasad should have come forward to support the plaintiffs in the present case, for I have not the slightest hesitation in saying that he has not stated the truth before the Court. The entries in the attendance register (Ext. 1) themselves are sufficient to belie his statements, but I shall point out other improbabilities as well in his evidence.”
It is the tenants' case that the draft of the agreement of sale was prepared by Deep Narain Prasad. Deep Narain Prasad had as admitted by him very little professional work either on the criminal or on the civil side. He was unable to name the person who approached him with the draft. He only referred to him as the “son of Satendra Babu”, who was at one time a pleader. The tenants had engaged lawyers for defending the action filed before the House Controller and the Collector, but they did not obtain the assistance of those lawyers for preparing the draft. The story of Deep Narain Prasad, it must be stated with regret, carries little conviction. The witness has stated that he was practising for 33 years, that Satendra Babu was practising as a pleader at Monghyr and that the son of Satendra Babu had approached him to get the draft of the agreement prepared through him, and that he prepared the draft and gave the same to the son of Satendra Babu. In cross-examination he stated that he was “not at all a busy lawyer”, and “had little practice on the civil side” and “little practice on the criminal side as well”. The agreement Ext. 1/a did not bear the signature or initials of this witness. He asserted that it was a copy of the draft prepared by him. He stated that his “annual income from practice was less than Rs 1000”, and he could not say what his approximate income from drafting may be. He was asked some questions about his acquaintance with the provisions of the Transfer of Property Act and the Specific Relief Act and he disclosed gross ignorance of those branches of the law. In answer to the Court's question the witness stated that he had drafted the agreement on the basis of a draft which was shown to him by the son of Satendra Babu. He added that so far as he recollected that draft was prepared by one Malik, a lawyer of Monghyr who later on was appointed a Munsif, and that he had learnt that fact from the son of Satendra Babu, and that the draft related to the same property for which he had prepared the draft, and the draft was signed by the four persons.
17. The High Court notwithstanding the serious infirmities felt impressed by the testimony of Deep Narain Prasad. The High Court observed that the contents of the draft “were practically on same lines” as another agreement which Nirmalendu had with him and that the earlier draft was signed by four persons including the present defendants. This, in the view of the High Court, showed that the copy of the earlier agreement was taken by the second defendant. But a comparison of the terms of the two agreements does not show that the recitals were identical. It is true that a trained lawyer accustomed to conveyancing may have been able to collect the requisite information from a copy of the agreement, dated January 17, 1950, if he was instructed to draft the agreement in dispute. But the witness has not even deposed that he was told that any sum was paid and any recital in that behalf was required to be made. Accounts of the lawyer have not been produced. If his assistance was obtained for the purpose of preparing a draft agreement, the parties may well have taken his assistance at the time of the execution thereof. But the only part played by Deep Narain Prasad, according to him, was that he was approached by the son of Satendra Babu to get the draft of the agreement prepared on the basis of an earlier draft and that he prepared the draft and handed it over. Before and after that date, he had nothing to do with the transaction. The draft prepared by the witness is not forthcoming. In our view, the testimony of Deep Narain Prasad was rightly regarded by the trial court as unreliable.
18. The circumstances of the case are, in our judgment, eloquent. There is no documentary evidence, apart from the disputed writings evidencing payment of Rs 9580 by the tenants to the defendants. The tenants have not led any evidence to support their case that they had a substantial amount of cash with them. They have produced no accounts in support of their case. Sudha daughter of Amarendra had interest in the property, but her interest was completely ignored, and the agreement is said to have been negotiated on the footing that she had no interest whatever in the house, even though in the previous agreement of January 17, 1950, Amarendra was the principal party executing the agreement and had taken steps to obtain an order in ejectment, throws great doubt upon the truth of the story of the tenants.
19. There is one more circumstance which has relevance in this case. It is true that handwriting experts have been examined on both sides, and the handwriting experts examined by each side has sought to support his client's case. The agreement on which reliance was placed was not originally produced with the plaint. After the defendants raised the contention that the document on which tenants relied was probably fabricated, it was produced in Court. The trial court, on April 7, 1955, called upon the tenants to deposit a certain amount as fee for examination of the document by the Government handwriting expert and the suit was adjourned on three occasions to enable the tenants to pay the fee. They failed to deposit the fee and their prayer to send the document and the signatures for examination by the Government handwriting expert was rejected. The conduct of the tenants, notwithstanding repeated orders passed by the trial court in avoiding to send the document for examination by an independent Government handwriting expert also raised a serious suspicion against the truth of their story. Sample signatures of the defendants were obtained in Court on April 22, 1955, for comparison and everything was ready for the document being sent for examination by the Government handwriting expert, but till the case was opened for trial in February 1956, the tenants took no steps to have the document examined, and finally they examined a private expert.
We have carefully considered the evidence of the witnesses and the relevant documentary evidence and we have no doubt that the learned Trial Judge was right in holding that document Ext. 1/a which purports to bear the signatures of the three defendants is a fabricated document, and the High Court was in error in decreeing the suit for specific performance.
The appeal is allowed and the decree parsed by the trial court is restored with costs throughout.