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Mst. Budhi Vs. Balmukand - Court Judgment

LegalCrystal Citation
SubjectContract
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil First Appeal No. 111/1982
Judge
Reported in1983WLN629
AppellantMst. Budhi
RespondentBalmukand
DispositionAppeal dismissed
Excerpt:
.....lead to illogical conclusions.;(c) evidence act - execution of document--proof of--execution of agreement proved by evidence of plaintiff--held, mere denial holds no ground.;the evidence adduced by the plaintiff dispels all doubts about the execution of ex. 1. it is well settled that once the execution of a document is proved, the contents will follow. the contention that the agreement set up by the plaintiff and the execution of ex. 1 do not stand proved is barren and holds no ground.;(d) specific relief act, 1963 - section 20 and evidence act--section 104--specific performance--defendant an old & illiterate woman--full price taken from plaintiff & possession of fields delivered to defendant--defendant not executing sale deed--no delay in seeking relief--held, he cannot be..........the plaintiff to sell her khatedari rights of these fields to him for a sum of rs. 20,000/- and executed agreement (ex. 1) on the same day in his favour. the price was paid to her in full by him at that very time and she put him in possession of the fields. as per terms of the agreement, she was to obtain 'no dues certificate' from the co-operative society and execute the sale-deed in his favour as and when he required her to do so and get it registered. after sometime in the month of kartik, he called upon her to execute the sale deed but she did nothing he then served a notice in writing to her on july 2, 1980 reiterating his demand for the execution of sale-deed audits registration. the attempt proved abortive. he, thereupon, instituted the suit and claimed the following.....
Judgment:

S.S. Vyas, J.

1. This is a vendor-defendant's appeal from the judgment and decree of the karued Additional District Judge (1), Alwar dated October 14, 1982, by which the plaintiff's suit for specific performance of a contract of sale in respect of immovable property viz. Khatedar Rights in the agricultural lands was decreed with costs.

2. Plaintiff Balmukand brought a suit for specific performance of a contract of sale against the defendant in the court of District Judge, Alwar on August 9, 1980 the case set up by him was that the defendant is a Khatedar tenant of the seven fields described in para 1 of the plaint. On July 1, 1979, she made an agreement with the plaintiff to sell her Khatedari rights of these fields to him for a sum of Rs. 20,000/- and executed agreement (Ex. 1) on the same day in his favour. The price was paid to her in full by him at that very time and she put him in possession of the fields. As per terms of the agreement, she was to obtain 'no dues certificate' from the Co-operative Society and execute the sale-deed in his favour as and when he required her to do so and get it registered. After sometime in the month of Kartik, he called upon her to execute the sale deed but she did nothing He then served a notice in writing to her on July 2, 1980 reiterating his demand for the execution of sale-deed audits registration. The attempt proved abortive. He, thereupon, instituted the suit and claimed the following reliefs:

(1) The defendant be directed to execute the sale deed in his favour and get it registered; and

(2) In case, his possession over the fields was not established, the possession over them be delivered to him.

The suit was resisted by the defendant on a complete and categorical denial. All the material averments of the plaintiff were transferred and it was pleaded that her deceased-husband was the Khatedar tenant of the fields in dispute. On his death, the tenancy rights devolved on her and her three daughters-Gulkandi, Bhoti and Govindi. She denied that she entered into an agreement with the plaintiff to sell her Khatedari rights of the fields in dispute to him for a rum of Rs. 20,000/- or executed agreement (Ex. 1) in his favour. It was further stated that her daughter Bhoti relinguished her lights in these fields in favour of her another daughter Gulkandi. The fields were, thus, in possession of Gulkandi, who was cultivating them. The plaintiff and his son once confined her in a room. If her thumb impression was taken on any paper by the plaintiff while she was in her confinement, it had no legal sanctity. The case came for trial before the learned Additional District Judge, who raised the following issues:

(i) Where the defendant made an agreement to sell she fields described in para 1 of the plaint to the plaintiff for a sum of Rs. 20,000/- on 1-7-79 and received the amount of Rs. 20,000/- thereunder and whether she executed the agreement and affixed her thumb impression on it and delivered the possession of the fields to the plaintiff?

(ii) Whether the three daughters of the deceased Shri Moti (defendant's husband) are his heirs in addition to the defendant and whether Shri Mbti gave the fields in dispute to Gulkandi for cultivation and whether she was in their possession, and if so, with what effect on the suit?

3. Both the parties led oral and documentary evidence. On the conclusion of trial, the learned District Judge answered both the issues in the plaintiff's favour. The suit was consequently decreed in terms prayed for. Aggrieved against the said judgment and decree, the defendant has come up in appeal.

4. I have heard the learned Counsel for the parties and gone through the record carefully.

5. in assailing the judgment and decree, the first contention raised by the learned Counsel for the defendant is that the whole approach of the court below was erroneous. It was argued that agreement (Ex. 1) was wrongly taken as executed by the defendant.' The defedant is ah old and illiterate village woman and, as such heavy burden lay over the plaintiff to dispel all the doubts about the execution of Ex 1. The court below did not properly scrutinise the evidence. The evidence adduced by the plaintiff was riot solid and convincing to prove that agreement (Ex. 1) was executed by her. In reply, learned Counsel for the plaintiff supported the findings of the learned trial Judge & submitted that in addition to the direct evidence, there was ah admission of the defendant (made in some litigation with her daughter Gulkandi) to the effect that she had made the agreement to sell the tenancy rights to him I have taken the respective contentions into consideration.

6. Ex. 1 is the agreement of sale, which has been made the basis of the suit. The plaintiff has examined himself and four witnesses to prove the agreement and execution of Ex 1. Plaintiff Shri Balmukand (PW 1) deposed that the defendant made ah agreement to sell her khatedari rights in the fields in dispute to him for a sum of Rs. 20,000/-. Her daughter Govindi was also present at the time of the agreement. The full amount was paid in the village to her. Next day, agreement Ex. 1 was executed. It was written by PW 2 petition writer Shri Bihmlal at his house in the presence of PW 2 Kalu, PW 4 Gulkandi and PW 5 Bachusingh. It was read over to the defendant. She affixed her thumb impression on every page Ex. 1. The above persons also put their attention on Ex. 1. PW 2 Biharilal is the scribe of Ex. 1. He is a petition Writer by profession. He deposed that the parties approached him to write an agreement of sale. The defendant had agreed to sell her land to the plaintiff for a sum of Rs. 20,000/-. She admitted before him that she had already received the amount of Rs. 21,000/- from the plaintiff. On her request, he wrote agreement Ex. 1. The defendant affixed her thumb impressions marked 'X'on every page of Ex. I. At that time, Shri Kalu (PW 3) Govindi (PW 4) and Bachusingh (PW 5) were also present. They put their attention on Ex. 1. He positively stated that Ex. 1 read-over to the parties. The defendant admitted its correctness. PW 3 Kalu stated the same facts According to him, the plaintiff paid the amount of Rs. 20,000/- to the defendant in his presence. He further stated that the agreement was written in his presence. The defendant appended her thumb impressions on it. He also attested the agreement by placing his thumb impression on it. PW 4 Govindi is the real daughter of the defendant. She deposed that agreement of sale was made in her presence. Her mother agreed to sell the land in dispute to the plaintiff for a sum of Rs. 20,000/-. The amount of Rs. 20,000/- was paid to her by the plaintiff in her presence. Next day the agreement was written in Tehsil Laxmangarh by the petition writer. It was written on the request and at the instance of the defendant. The defendant affixed her thumb impressions on the agreement. She also put her thumb impression on it as an attesting witness. PW 3 Kalu and PW 5 Bachusingh were present at that time and they also put their attestation on the agreement. PW 5 Bachusingh is also an attesting witness of Ex. 1. He too deposed the same facts. All these witnesses were cross-examined at length but nothing could be elected from them, which may make their testimony unworthy of before credence. The petition-writer PW 1 Biharilal is an independent person. It is difficult to imagine that he would forge a document for no apparent reasons. PW 3. Kalu and PW 5 Bachusingh are the residents of defendant's village, It has not been shown that they bear any grudge or animus against the defendant. PW 4 Govindi is the real daughter of the defendant. The testimony of these witnesses has not been shaken or shattered in cross-examination. The learned Judge accepted as true what they testified. I find no good and cogent reasons to take a different view.

7. There is then a clear admission made by the defendant in her written statement Ex 4. Mst. Gulkandi filed a suit for declaration against her mother (defendant) and sisters Bhoti and Govindi (PW 4), The certified copy of the plaint is Ex. A/2. In this suit, the defendant submitted written statement Ex. 4. In para 3 of the additional pleas of Ex. 4 t be defendant made a clear admission that she had already sold her khatedari rights of the fields in dispute to the plaintiff on July 1, 1979 for a sum of Rs. 20,000/- and had executed a document in pursuance thereof on the same day in his favour.

8. It was argued that Ex. 4 should not be read in evidence as its execution has not been proved. Now, Ex. 4 is a certified copy of the written statement. Pleadings are no doubt private documents. As such, the written statement, not being a public document in terms of Section 74 of the Evidence Act, its execution should be proved by the party wishing to read it in evidence. In the instant case, there is sufficient evidence to show that written statement Ex. 4 was filed by the defendant. Defendant Mst. Bhudi (DW 1) admitted in cross-examination that her daughter Gulkandi had filed a suit against her and she appeared in the Revenue Court in that suit D.W, 2 Gulkandi, who is the daughter of the defendant, admitted in her cross-examination that she had filed a suit against her mother and sisters for partition. In that suit, her mother (defendant) filed the written statement She further admitted that in trat written statement, her mother (defendant) admitted to have sold the fields in dispute to the plaintiff. Ex. 4/2 and Ex. 4/3 are the certified copies of the plaint and judgment respectively. Tacking Ex. A/2 and Ex. A/3 together, it can be safely said that written statement Ex. 4 was filed by the defendant.

9. Admissions are substantive evidence by themselves in view of Sections 17 & 18 of the Evidence Act, though they are not conclusive proof of the matters admitted. The rigour of an admission can be avoided by its maker by showing that it was falsely made or was made with some ulterior motive. But so long it has not been avoided, it is binding on its maker. In the instant case, the defendant simply denied to have filed written statement Ex. 4. She gave no explanation to avoid her admission made therein. A bare denial is not sufficient to avoid an admission.

10. Taking together, the evidence of the plaintiff's witnesses and the admission of the defendant, it stands proved that the defendant made the agreement of sale and executed Ex. 1 in favour of the plaintiff.

11. In rebuttal, the defendant examined herself and some witnesses. Defendant Budhi (DW 1) stated that no agreement was made by her nor agreement (Ex. 1) was executed. But she did not state the reasons as to why the plaintiff then filed a false suit against her. DW 2 Gulkandi is her daughter. She was not present at the time of the agreement. DW 4 Mool Chand is the son-in-law of the defendant, He also was not present at the time of the agreement. Their evidence is, therefore, not helpful to the defendant. It may be mentioned that DW 4 Moolchand lodged FIR Ex. A/1 against the plaintiff at Police Station, Laxamangarh stating therein that the defendant was unlawfully confined by him and a document was got executed from her. The police after investigation, found no substance in the report and dropped the matter.

12. It is true that the special protection of law developed under Section 104 of the Evidence Act in respect of a document alleged to have been executed by a PARDANASHIN lady has been extended with full vigour to an old and illiterate woman. The object of the rule is to help the weak and helpless women. In view of this protection, the onus to prove due execution of a document by an old and illiterate woman, would lie on the person who seeks to rely on it for his claim. The person setting up his claim under such a document must prove that - (1) she knew of its contents, and (2) she executed it with full knowledge of its effect and consequences. The protective cloak can not be stretched beyond this, otherwise it would lead to ill-logical conclusions.

13. As has been discussed above the evidence adduced by the plaintiff dispels all doubts about the execution of Ex. 1. It is well settled that once the execution of a document is proved, the contents will follow. The contention that the agreement set up by the plaintiff and the execution of Ex. 1 do not stand proved is barren and holds no ground.

14. It was next argued that the relief of specific performance lies in the discretion of the court. This discretionary relief should not be granted to the plaintiff in the instant case as the defendant is an old and illiterate woman. True to say that under Section 20 of the Specific Relief Act, 1963 the jurisdiction to grant a decree of specific performance is discretionary and the court is not bound to grant such relief only because it is lawful to do so. This discretion is not to be arbitrarily exercised. It should be based on sound, reasonable and judicial principles. Through the party has no absolute right to the specific relief of performance, but it can be denied only on good and cogent reasons. Explanation (1) of Section 10 lays down that unless and until the contrary is proved, the court shall presume that the breach of contract to transfer immovable property cannot be adequately relieved by compensation in money. Agreements made should be enforced unless there are convincing reasons not to do so. In the instant case, the defendant no where pleaded that specific performance should be refused on any ground. Simply because the defendant is an old and illiterate women, the relief of specific performance can not be with held She has taken the price in full from the plaintiff and delivered the possession of the fields to him. The plaintiff promptly came to the court, when she did not execute the sale-deed. There is no delay or laches on the part of the plaintiff in enforcing his right for specific performance. There are no sound reasons to dis-allow the relief of specific performance to the plaintiff.

15. No other contention was raised.

16. For the reasons discussed above, I find no force in this appeal of the defendant and dismiss the same with costs.


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