Narendra Bahadur Singh v. Baijnath Singh And Another

K.N Seth, J.:— This appeal by the defendant arises out of a suit filed by the plaintiff-respondents for specific performance of a contract of sale directing the defendant to execute a sale deed in the name of plaintiff No. 2 on receipt of a sum of Rs. 20,000/-, the balance amount of sale consideration, from plaintiff No. 1 in respect of the properties detailed in the schedule attached at the foot of the plaint. The case set up by the plaintiffs was that the defendant was the owner and bhumidhar of the property in suit which included a big kothi, abadi land, kitchen garden and a grove in village Namaksair, Pergana and Tahsil Sadar, district Pratapgarh. He decided to stay permanently at Lucknow and started disposing of his property lying in district Pratapgarh, He transferred several items of property to plaintiff No. 1, his brother Avadesh Singh and Harkesh Bahadur Singh and to other persons also. The defendant Used to settle the sale transaction and the terms thereof orally at Lucknow and used to instruct his Mukhtaram Sri Bharat Singh to execute the sale deeds and get them registered at Pratapgarh. The defendant approached plaintiff No. 1 to purchase the property in suit. After some negotiations, plaintiff No. 1 agreed to purchase the property in the name of his minor son plaintiff No. 2. The agreement between plaintiff No. 1 and the defendant was arrived at in August, 1963 at Lucknow in the presence of Avadesh Singh, brother of plaintiff No. 1, and Raja Raghvendra Pratap Singh, Talukedar of Manikpur State, It was stipulated that the property would be transferred for a consideration of Rs. 30,000/-, that the sale deed would be executed and got registered in the name of plaintiff No. 2 by Sri Bharat Singh, the Mukhtaram of the defendant, that the sale deed would be executed within one year from the date of the agreement, that a sum of Rs. 10,000/- would be paid as earnest money, that plaintiff No. 1 and his brother Avadesh Singh would transfer 2 biswas of their bhumidhari land situated in the compound of the Kothi close to the temple of Shivji in favour of the defendant for a consideration of Rs. 50/-. In pursuance of the agreement, plaintiff No. 1 on 26-8-1963 issued crossed cheque in favour of the defendant for Rs. 10,000/- as earnest money and on the same date the plaintiff and his brother Avadhesh Singh executed a sale deed for a sum of Rs. 50/- transferring 2 biswas of bhumidhari land forming part of plot No. 1221 of village Namaksair in favour of the defendant. The defendant's Mukhtar-am gave a writing to plaintiff No. 1 acknowledging receipt of Rs. 10,000/- as earnest money in pursuance of the agreement to sell the property in suit. It was pleaded that in June, 1964 the defendant assured Sri Avadesh Singh, brother of plaintiff No. 1, to execute the sale deed by 15th July, 1964. However, on hearing rumours that the defendant intended to change his mind, Avadesh Singh along with Sri Surya Baksh Singh, Vakil, Sri Balendra Bhushan Pratap Singh, M.L.A, again met the defendant at Lucknow on 28-6-1964 when they were told that the defendant had decided not to sell the property though he admitted to have entered into agreement to sell it. Thereafter Suit No. 4 of 1964 was filed in the name of Indu Prakash Singh (plaintiff No. 2) for specific performance of the contract of sale. An application was made in that suit for impleadment of Baijnath Singh as a co-plaintiff and for certain other amendments in the plaint. The prayer was, however, turned down by the court against which a revision was filed in the High Court. Subsequently the present suit was filed. It was asserted that though plaintiff No. 1 performed his part of the contract yet the defendant failed to perform his part, hence the suit. By a subsequent amendment, an assertion was made that plaintiff No. 1 is ready and willing to perform the remaining part of the contract.

2. The defendant contested the suit denying having entered into a contract for sale of the property in suit. He admitted to have sold 24 bighas of land under sale deeds dated 26th Aug. 1963 but asserted that the sale consideration was Rs. 20,000/- and not Rs. 10,000/- as alleged by the plaintiffs. It was alleged that only one sale deed was to be executed for a consideration of Rs. 20,000/- but plaintiff No. 1 and his brother prevailed upon Bharat Singh, in order to save stamp duty, to execute two sale deeds. One for Rs. 6,000/- and another for Rs. 4,000/- and to pay the remaining, sum of Rs. 10,000/- before the execution of the sale deed. It was this payment of Rs. 10,000/- which is alleged to be the payment of earnest money in furtherence of the alleged oral agreement to sell the property in suit. The plaintiffs also managed to obtain a recepit for the said sum from Bharat Singh without any knowledge of the defendant. With regard to the transfer of 2 biswas land of plot No. 1221, it was pleaded that this land was included in the compound of the defendant's residential house constructed about 30 years back and had been enclosed by a boundary wall. The land was in actual and constructive possession of the defendant. The defendant on learning that plaintiff No. 1 and other members of his family got a sale deed of whole of plot No. 1221 in their favour asked them to execute a sale deed in respect of two biswas of land of that plot to avoid any future dispute and this was made a condition for transfer of 24 bighas of land by the defendant in favour of Baijnath Singh and others. The sale deed of 2 biswas of land had no concern with the alleged oral agreement in respect of property in suit. According to the defendant the property in dispute was valued at more than Rupees 80,000/- and the alleged transaction was unconscionable and unfair and consequently could not be enforced. The defendant also pleaded that the plaintiffs were guilty of laches inasmuch as they filed the present suit after about four years of the alleged date of agreement plea of limitation, lack of mutuality and the contract being hit by the provisions of Section 154 of the U.P Zamindari Abolition & Land Reforms Act were also raised. On the pleadings of the parties various issues were framed. The trial court came to the conclusion (i) that plaintiff No. 1 paid a sum of Rs. 10,000/- on 26-8-1963 to the defendant through his Mukhtar-am by way of earnest money and that the defendant had not received that amount as a part of sale price of the properties covered by the two sale deeds dated 26-8-1963 (Issue No. 1); (ii) that there was an agreement between plaintiff No. 1 and the defendant for the sale of the property in suit on 4th August, 1963 for a consideration of Rs. 30,000/- that the sale deed was to be executed within a year of the date of agreement in the name of Indu Prakash benami for his father Baijnath Singh, that Baijnath Singh and his brother Avadesh Singh would transfer two biswas of their land forming part of plot No. 1221 to the defendant, that there was no lack of mutuality of contract between the parties and that it did not affect the rights of the plaintiffs adversely to execute the alleged agreement (Issues Nos. 2 and 4); (iii) that the contract was not hit by the provisions of Sec. 154 of U.P Act No. 1 of 1951 (Issue No. 7); (iv) that the plaintiffs were not guilty of laches in bringing the suit and the suit for specific performance was enforceable in law (Issue No. 8); that the suit was not barred by law of limitation in consequence of the amendment of the plaint (Issue No. 6); that plaintiff No. 1 is entitled to obtain a sale deed from the defendant in the name of his son plaintiff No. 2 of the properties in suit on payment of Rupees 20,000/- (Issue No. 3). On these findings the suit was decreed.

3. We may first take up for consideration the question whether the plaintiff is entitled to a decree for specific performance on the basis of the suit as framed. Section 16 of the Specific Relief Act (hereinafter referred to as the Act) provides.

“Specific performance of a contract cannot be enforced in favour of a person—

(a) & (b) ……………………

(c) who fails to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than terms the performance of which has been prevented or waived by the defendant.

4. Explanation — For the purposes of Clause (c)—

(i) where a contract involves the payment of money, it is not essential for the plaintiff to actually tender to the defendant or to deposit in court any money except when so directed by the Court;

(ii) the plaintiff must aver performance of, or readiness and willingness to perform, the contract according to its true construction.”

5. Appendix ‘A’ to the Civil P.C contains the forms for various types of suits. Forms Nos. 47 and 48 relate to suits for specific performance. Para ‘3’ of Form No. 47 contemplates that in a suit for specific performance it must be averred that the plaintiff has been and still is ready and willing specifically to perform the agreement on his part of which the defendant has had notice. Similarly Paragraph ‘5’ of Form No. 48 contemplates averment to the effect that the plaintiff is still ready and willing to pay the purchase-money of the said property to the defendant. The provision Contained in Section 16 of the Act appears to be mandatory. In specific, terms it lays down that specific performance of a contract cannot be enforced in favour of a person who fails to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract. The requirement of law is twofold: (i) that he must aver in the plaint and (ii) that he must prove by evidence that the plaintiff has always been ready and willing to perform his part of the contract. The plaintiff cannot be allowed to succeed if he fails to fulfil any of the two obligations enjoined by law. The plaintiff may bring on record evidence of his readiness and willingness to perform his part of the contract. But if no such averment has been made in the plaint, the evidence would be of no avail to the plaintiff and in fact it could not be looked into.

6. Even under the Specific Relief Act of 1877 It was recognised that in the absence of an averment on the part of the plaintiff in the plaint that he was ready to perform his part of the contract, no decree for specific performance of the agreement could be granted. Lord Blanes burgh in Ardeshir Mama v. Flora Sassoon (AIR 1928 PC 208) observed:—

“Although, so far as the Act is concerned there is no express statement that the averment of readiness and willingness is in an Indian suit for specific performance as necessary as it always was in England (S. 24(b) is the nearest). It seesms invariably to have been recognised, and, on principle their Lordships think rightly, that the Indian and the English requirements in this matter are the same; see e.g Karsandas v. Chhota Lal, (1923) 25 Bom LR 1037, 1050 : (AIR 1924 Bom 119).”

7. Dealing with the competence of a suit for specific performance in which the necessary averment in the plaint as required by Section 16(c) of the Act is absent, the Supreme Court in Prem Raj v. The D.L.F Housing and Construction (Private) Ltd. (AIR 1968 SC 1355) observed (at p. 1357):—

“There is also another reason for holding that the appellant has made out no cause of action with regard to the relief of specific performance of the contract. It is well settled that in a suit for specific performance the plaintiff should allege that he is ready and willing to perform his part of the contract. In the present case no such averment is made in the plaint. On the other hand, the plaintiff has alleged that the agreement was a result of fraud and undue influence and was not binding upon him. For these reasons it must be held that so far as the relief of specific performance is concerned the plaintiff has no cause of action.”

8. Again in Ouseph Verghese v. Joseph Aley ((1969) 2 SCC 539) the plaintiff did not inform the court that he was ready and willing to perform his part of the contract. The Supreme Court observed:

“A suit for specific performance has to conform to the requirements prescribed in Forms 47 and 48 of the 1st Schedule in the Civil P.C In a suit for specific performance it is incumbent on the plaintiff not only to set out agreement on the basis of which he sues in all its details, he must go further and plead that he has applied to the defendant specifically to perform the agreement pleaded by him but the defendant has not done so. He must further plead that he has been and is still ready and willing to specifically perform his part of the agreement.”

9. The rule laid down in Prem Raj's case (AIR 1968 SC 1355) (supra) that it is well settled that in a suit for specific performance the plaintiff should allege that he is ready and willing to perform his part of the contract and in the absence of such an allegation, the suit is not maintainable was approved and affirmed.

10. Coming to the decisions of our Court, in Rajendra Prasad Rai v. Raj-deva Rai (AIR 1974 All 294) where in a suit for the specific performance of a contract the plaintiff failed to aver that he was ready and willing to perform his part of the contract as required by Section 16(c) of the Specific Relief Act and as mentioned in Form 47 of Schedule I of the Civil P.C, and there was no notice to the defendant or any documentary evidence to show that the plaintiff was willing to perform his part of the contract, it was held that the plaintiff failed to make out any cause of action with regard to the specific performance of the contract, and that the suit should have been dismissed, even though the defendant failed to take an objection. A Bench of this Court in Mahmood Khan v. Ayub Khan (AIR 1978 All 463) also took the same view by observing that the mandate of the statute required that the plaintiff must aver in the plaint and must give proof of the fact that he was and has been ready and willing to perform his part of the contract. Merely giving proof of the fact will not be a substitute for the necessary averment in plaint. The same view was reiterated in First Appeal No. 140 of 1976 Mukhtar Singh v. Dharam Pal, decided on 1-12-1980 (reported in 1981 All LJ 119).

11. Learned counsel for the respondents invited our attention to the decision of this Court in First Appeal No. 136 of 1971, Shri Sharda Prasad Singh v. Sheo Shanker Lal, decided on 21-8-1980. In that case on an analysis of the plaint allegations the Court took the view that although the plaint did not contain the express words to indicate that the plaintiff was ready and willing to perform his part of the contract but averments made in the plaint indicated that the requirements of law have been substantially complied with. This decision turned on the relevant allegations made in the plaint of that case and, is clearly distinguishable. For the respondents, reliance was also placed on the decision of the Supreme Court in Ramesh Chandra Chandiek v. Chuni Lal Sabharwal ((1970) 3 SCC 140 : AIR 1971 SC 1238) wherein it was observed that readiness and willingness cannot be treated as a strait-jacket formula and that these have to be determined from the entirety of facts and circumtances relevant to the intention and conduct of the party concerned. Paragraph ‘4’ of that judgment mentions that apart from taking all the necessary pleas it was averred in the plaint that the plaintiffs appellants had always been ready and willing to perform their part of the contract. The dispute in the case was about the proof of such readiness and willingness on the facts of that particular case. The observation of the Supreme Court has to be read in the light of the question for consideration and the further fact that the necessary averments as required by Section 16(c) of the Specific Relief Act had been made in the plaint. This case, therefore, is of not any assistance to the respondents.

12. In the plaint as originally filed on 1-6-1966, after setting out the terms and the circumstances in which oral agreement for sale of the disputed property came into existence in August, 1963, it was stated in paragraph ‘14’ that on 28th June, 1964 the defendant showed his inability to execute the sale deed. In the next paragraph it was averred “that although plaintiff No. 1 performed his part of the contract yet the defendant failed to perform his part; hence the necessity of the present suit.” The plaint did not contain an averment to the effect that he is ready and willing to perform his part of the contract. On 21-11-1967, an application under Order 6, Rule 17, C.P.C was made seeking to amend paragraph ‘14’ of the plaint by introducing after the word ‘contract’ and before the word ‘yet’ the words “and is ready and willing to perform the remaining part of the contract.” In spite of the opposition by the defendant, the application was allowed the very next day.

13. In the plaint neither the exact date of the agreement nor the time within which the sale deed had to be executed was mentioned. At the trial, the plaintffs came forward with the case that the oral agreement was arrived at on 4-8-1963 and the sale deed had to be executed within a year of the agreement. Even if this case is accepted for the present, it is obvious that a suit for specific performance of the agreement could be brought on or before 4th August, 1967. The application for amendment of the plaint was made when a fresh suit would have been barred by time. As noted earlier, the plaint as originally filed did not contain the necessary averments required by Section 16(c) of the Specific Relief Act, On the principle laid down by the cases referred to above, the plaintiffs had no cause of action in the absence of necessary averments and the suit was liable to be thrown out on that ground. In such a situation, the court below was not justified in allowing the amendment in the plaint which, as it stood before, did not make out any cause of action for the relief of a decree for specific performance and was thus incompetent.

14. It is true that the power of the Court to allow amendment of the plaint is very wide, but while exercising that power this, salutary principle should be kept in mind that a party should not be deprived of a right that has accrued to it by efflux of time. In M/S Ganesh Trading Co. v. Moji Ram ((1978) 2 SCC 91 : AIR 1978 SC 484) the Supreme Court observed (at p. 486):—

“It is true, that if a plaintiff seeks to alter the cause of action itself and to introduce indirectly, through amendment of his pleadings, an entirely new or inconsistent cause of action, amounting virtually to the substitution of a new plaint or a new cause of action in place of what was originally there, the Court will refuse to permit it if it amounts to depriving the party against which a suit is pending of any right which may have, accrued in its favour due to lapse of time. But, mere failure to set out even an essential fact does not, by itself, constitute a new cause of action. A cause of action is constituted by the whole bundle of essential facts which the plaintiff must prove before he can succeeded in his suit. It must be antecedent to the institution of the suit. If any essential fact is lacking from averments in the plaint the cause of action will be defective. In that case, an attempt to supply the omission has been and could sometimes be viewed as equivalent to an introduction of a new cause of action which, cured of its shortcomings, has really become a good cause of action. This, however, is not the only possible interpretation to be put on every defective state of pleadings. Defective pleadings are generally curable if the cause of action sought to be brought out was not ab initio completely absent. Even very defective pleadings may be permitted to be cured, so as to constitute a cause of action where there was none, provided necessary conditions, such as payment of either any additional court-fees, which may be payable, or, of costs of the other side are complied with. It is only if lapse of time has barred the remedy on a newly constituted cause of action that the Courts should, ordinarily, refuse prayers for amendment of pleadings.”

15. As noted earlier, in the case of Prem Raj (AIR 1968 SC 1355) (supra) the Supreme Court observed that in the absence of an averment in the plaint that the plaintiff is ready and willing to perform his part of the contract, there was no cause of action for the suit. On the principle stated in the case of Ganesh Trading Co. ((1978) 2 SCC 91 : AIR 1978 SC 484) (supra) where there is a defect in the cause of action, the amendment application can be allowed to rectify the mistake, but where there was no cause of action for the suit and a valuable right has accrued to the other side on account of efflux of time, the Court should ordinarily refuse the prayer for amendment. In the present case, omission of the averment in the plaint that the plaintiff is ready and willing to perform his part of the contract rendered the plaint without a cause of action for a suit for specific performance. By the time the application for amendment was made, a fresh suit for specific relief had become barred by time. A valuable right had accrued in favour of the defendant by efflux of time. He could not be deprived of that right by allowing an amendment in exercise of powers under Order 6, Rule 17, Civil P.C The order of the court below allowing the amendment cannot be sustained. Since the plaint did not contain the necessary averments as contemplated by Section 16(c) of the Act, the plaintiffs had no cause of action for a suit for specific performance of the alleged contract and the suit for that relief must, therefore, fail.

16. Even after amendment of para 14 of the plaint the requirement of Section 16(c) of the Act has not been fully complied with. It is not enough to aver that the plaintiff is ready and willing to perform the remaining part of the contract The plaintiff has both to aver and prove that he is and has always been willing and ready to perform his part of the contract. The plaint does not contain and there is no evidence on record to establish that after the plaintiffs learnt on 18th June, 1964 that the defendant was not willing to execute the sale deed, the plaintiffs gave him any notice indicating their readiness to have the sale deed executed and calling upon him to do so, Avadesh Singh (P.W 5) admitted that no notice was ever given to the defendant to execute the sale and he did not have any consultation with his brother in this matter. Baijnath Singh (P.W 6) admitted that he did not complain about it) to Raja Saheb Manikpur. who was a friend of the defendant and in whose presence the agreement is alleged to have been arrived at he further admitted that he did not give any notice to the defendants that he was ready with the money to have the sale deed executed nor did he ever personally contact him and tender the money asking him to accept the amount and execute the sale deed. His bare statement in court that he was always willing to get the sale deed executed cannot be accepted. If the agreement had been arrived at as asserted by the plaintiffs and the defendant had gone back on the agreement, the plaintiffs would have given a notice and offered to have the sale deed executed on payment of the balance money. Avadesh Singh (P.W 5), the brother of plaintiff No. 1, was associated with the transaction from the very beginning and being a lawyer his advice must have been sought. In normal course he ought to have advised his brother to give a registered notice to the defendant and tender him the amount to create some evidence in support of the agreement more so when the agreement itself was not evidenced by, any writing. The fact that neither any, notice was given to the defendant tendering the balance amount and calling upon him to execute the sale deed nor, the offer was made personally falsifies the plaintiffs' claim that they have always been willing and ready to get the sale deed executed.

17. Apart from the legal flaws in the plaint there are various other facts and circumstances which militate against the case set up by the plaintiffs. The case set up by the plaintiffs was that an oral agreement had been arrived at between the parties in August, 1963 for sale of the disputed property for a sum of Rs. 30,000/- and acting upon the agreement, plaintiff No. 1 issued a crossed cheque for Rs. 10,000/- on 26-8-1963 which was the agreed amount of earnest money. It was stipulated that the sale deed would be executed benami in the name of plaintiff No. 2 and a period of one year from the date of the agreement was fixed for execution of the sale deed. On that very day, the defendant's Mukhtar-am gave a writing to plaintiff No. 1 acknowledging the receipt of Rs. 10,000/- as earnest money. Thereafter in June, 1964 Sri Avadesh Singh, Advocate, brother of plaintiff No. 1 and uncle of plaintiff No. 2, went to Lucknow and requested the defendant to fulfil his part of the contract. The defendant assured Sri Avadesh Singh that the sale deed would be executed by 15th July, 1964. Some days later Sri Avadhesh Singh received information that defendant was about to change his mind and consequently he along with Surya Baksh Singh, Vakil and Sri Balendra Bhushan Pratap Singh, M.L.A, again went to Lucknow on 28th June, 1964. The defendant admitted the terms of the agreement to sell but showed his inability to execute the sale deed and regretted that he was resiling from his promise. Prior to the institution of the present suit. Suit No. 4 of 1964 was filed by Indu Prakash Singh (present plaintiff No. 2) under the guardianship of his father Baijnath Singh (present plaintiff No. 1) on 24-7-1964 for the same relief as claimed in the present suit in that plaint (Ext. 20) it was alleged that an agreement had been arrived at between the defendant and the plaintiff through his father and uncle, for sale of the disputed property on a consideration of Rs. 30,000/- and the sale deed was to be executed in favour of the plaintiff. No mention in that plaint was made regarding execution of any receipt for Rupees 10,000/- by Bharat Singh. It was also not alleged that the sale deed was to be executed within one year of the agreement. Even though an application for amendment of that plaint was made on 26-9-1964 (Ext. 18) no mention was made of the receipt alleged to have been executed by Bharat Singh on 26th August, 1963. Baij Nath Singh (P.W 6), when cross-examined about the omission to mention the receipt in the earlier suit, stated that he had shown the receipt to his lawyer before the plaint was drafted and that after the draft of the plaint had been read out to him he pointed out to his lawyer about the omission to mention the receipt in the plaint but he was asked by his lawyer to keep quiet and not to teach him law. We find it difficult to accept that if this document was in existence at that time and had been shown to the lawyer, he would have omitted to make a mention of it in the plaint more so when his attention was specifically invited to it.

18. This document is said to have been executed on 26-8-1963 when the two sale deeds Exts. 1 and 2 were executed by Bharat Singh. It was scribed by Sri Krishna Pal Singh (P.W 1), a practising lawyer of Pratapgarh. It contains the details of the properties agreed to be sold, the total sale consideration and the amount paid as earnest money. According to Krishna Pal Singh, on 26-8-1963 at about 11-11.30 A.M he was present in the office which was in his house which adjoined the Collectorate Bar Association of Pratapgarh, Avadhesh Singh was also present there. The document was scribed by him on the asking of. Avadhesh Singh and Bharat Singh and Bharat Singh put his signature after reading the document. Questioned about the omission to mention in the document that a period of one year was stipulated for executing the sale deed, the witness stated that the period within which the sale deed was to be executed was mentioned by Bharat Singh but since he was not asked to mention this fact in the document, he omitted to do so. The witness further stated that since it did not strike him to put a stamp on the document, he did not suggest that it should be executed on a stamped paper. The circumstances in which Krishna Pal Singh (P.W 1) was asked to scribe the document has been stated by Mata Prasad (P.W 4) and Avadhesh Singh (P.W 5). According to Mata Prasad, he was present when Baij Nath Singh gave a crossed, cheque of Rs. 10,000/- to Bharat Singh at the Bank and from there they all came to Court where they met Avadhesh Singh, Baijnath Singh informed Avadhesh Singh that money had been paid by a cheque. At that very moment a case of Ava-dhesh Singh was called and he went away to court saying that a receipt may be got scribed by Krishna Pal Singh and thereafter the receipt (Ext. 37) was got executed. To the same effect is the testimony of Avadhesh Singh and Baijnath Singh. It appears to be rather unusual that although the receipt is said to have been scribed and executed in Court compound it was got scribed by a lawyer. It is not disputed that the two sale deeds Exts. 1 and 2 were got scribed by document writers present in the Court compound. There was absolutely no difficulty in getting the receipt also scribed by one of those persons. Moreover, the document ought to have been stamped. The witnesses examined by the plaintiffs appeared to be highly interested. Krishna Pal Singh (P.W 1) happens to be a colleague of Avadhesh Sinfih (P.W 5), brother of plaintiff No. 1 and uncle of plaintiff No. 2. Krishna Pal Singh admitted to have appeared in some cases with Avadhesh Singh Ext. A-45 indicates that Avadhesh Singh had appeared as a counsel for Krishna Pal Singh in proceedings under S. 145 Cr. P.C in which Krishna Pal Singh was the opposite party a fact which was put to Baij Nath Singh (P.W 6) who showed his ignorance about it Mata Prasad (P.W 4) also appeared to be highly interested in the plaintiff. He was made to be a witness in the sale deeds Exts. 1 and 2 and claimed to have been present when the agreement in respect of the disputed property was arrived at Lucknow. He claims to have accompanied Baij Nath Singh, Bharat Singh etc., to Pra-tapgarh on 26-8-1963 and was present at the Bank when the money was paid and was again available when the receipt for Rs. 10,000/- is said to have been executed. He admitted to have been present at the Kothi when the Commissioner appointed by the Court went to take the measurements. We are not inclined to place any reliance on these interested persons.

19. The signature of Bharat Singh on the document (Ext. 37), is not the normal and usual signature of the man. It is signed as . It is no record that on 26-8-1963. Bharat Singh made about 21 signatures and every where he signed as . On the record of the case there are several hundred signatures of the man and everywhere it is . The plaintiffs did not examine Bharat Singh to prove that he had signed the document (Ext. 37). The Court below wrongly inferred against the defendant for not producing Bharat Singh. It was for the plaintiffs, who relied on Ext. 37, to have examined him in support of their case. Admittedly Bharat Singh was not a regular employee of the defendant. He was the Mukhtar-am of Raja Manikpur who was a friend of the defendant. It was on that account that Bharat Singh was asked to act as Mukhtar-am of the defendant also. Later on the defendant became suspicious about the activities of Bharat Singh and cancelled the power of attorney and got a notice to that effect published in ‘National Herald’ dated 22nd September, 1965 (Ext. A-29). It is also in evidence (that Raja Manikpur died in the year 1964 and with his death whatever influence or control the defendant had on Bharat Singh that practically disappeared and there was complete break in relationship when the power of attorney in favour of Bharat Singh was cancelled by the defendant. It may be that thereafter Bharat Singh was persuaded to side with the plaintiffs and the receipt Ext. 37 came into existence. Had the receipt been available earlier, a mention of it must have been made in the earlier suit (No. 4 of 1964) or at least in the amendment application which was moved in that case.

20. We have examined the signature appearing on the disputed document with the admitted signatures of Bharat Singh. We have also perused the report and the statement of Dr. Alexander (P.W 7). As noted earlier, Ext. 37 is the only document where the signature of the executant appears as . In every other document he has signed as . The expert examined by the plaintiffs did not employ any scientific investigation in comparing the disputed signature and the specimen signatures. He simply compared the enlarged photographs with his eyes. To us the disputed signature does not appear to have been made by the same person who made the admitted signatures on Exts. 1 and 2. They do not appear to have been made by the same person at the same time.

21. There is another reason which creates serious doubt about the genuineness of the agreement for sale of the disputed property. According to the plaint case the agreement was arrived at in August, 1963 and at the same time it was agreed between the parties that plaintiff No. 1 and his brother Avadesh Singh would execute a sale deed for a sum of Rs. 50/- transferring two biswas of bhumidhari land forming part of plot No. 1221 in favour of the defendant, Avadesh Singh (P.W 5) and Baij Nath Singh (P.W 6) deposed to the same effect. Thus according to the case of the plaintiffs transfer of two biswas of plot No. 1221 in favour of the defendant was a part and parcel of the transaction relating to the transfer of the disputed property in favour of the plaintiffs. The case set up by the defendant on the other hand was that the transfer of two biswas of land out of plot No. 1221 was settled as a part of the transaction relating to transfer of land covered by sale deed Exts. 1 and 2. On a consideration of the evidence on record and the circumstances of the case. We are of the opinion that the transaction relating to transfer of two biswas of land out of plot No. 1221 could possibly have no connection with the alleged agreement set up by the plaintiffs. There is no dispute that two biswas out of plot No. 1221 was included in the compound of the defendant's residential house which was enclosed by a boundary wall constructed about 30 years back. The defendant had been in actual and constructive possession of this piece of land. Plaintiff No. 1 and his brother Avadhesh Singh got a sale deed dated 29-12-1961 (Ext. 32) executed in their favour for the entire plot number 1221 from one Lal Kumar Singh whose name was recorded over this plot in revenue papers. When the defendant learnt about this transfer he stipulated with the plaintiff and his brother that he would execute the sale deeds relating to 24 bighas covered by Exts. 1 and 2 and at the same time they in their turn would execute a sale deed of 2 biswas of plot no. 1221 in favour of the defendant. Admittedly the sale deed relating to two biswas of plot No. 1221 was executed, in favour of the defendant on the same day i.e, 26th August, 1963 when the sale deeds Exts. 1 and 2 were executed in favour of plaintiff No. 1 and his brother Avadesh Singh. It appears that although 2 biswas of plot No. 1221 was in effective possession and control of the defendant he wanted to be doubly sure of his title to this land by getting a sale deed executed in his favour on a nominal price of Rs. 50/-. This step taken by the defendant appears to be quite natural since this small apiece of land of plot No. 1221 was a part of the compound in which not only, his Kothi but a private temple also existed. There appears to be absolutely no logic in getting this small piece of land transferred in his name if he had in fact a few days earlier agreed to transfer the entire Kothi along with the land appurtenant to it in favour of plaintiff No. I.

22. Parties have lead evidence regarding the condition and the valuation of the property in dispute. The plaintiffs led evidence to show that the kothi was in a bad shape and the entire property could not fetch more than Rs. 30,000/-. The defendant on the other hand led evidence that the market value of the large residential house, pucca boundary walls and other buildings standing on the land and the groves in suit was several times mote than the alleged agreed price of Rs. 30,000/- and on this basis it was urged that the defendant could never have agreed to sell the property for Rs. 30,000/- only. We do not consider it necessary to decide this aspect of the case as the suit must fail on the points decided earlier.

23. One of the pleas raised by the defendant was that the contract was hit by the provisions of S. 154 of U.P Act No. 1 of 1951. It was stressed that on the date of the alleged agreement Baijnath Singh possessed more then 121 acres of land in Uttar Pradesh and as such it was not open to him to enter into an agreement for the purchase of the land in suit. The stand taken by the plaintiffs was that the material date for the purposes of the present case would be the date of the sale and not the date of the agreement and since plaintiff No. 1 Baijnath Singh who had contracted to purchase the property in the name of his minor son plaintiff No. 2 had already transferred a part of has land before the institution of the present suit and he was not in possession of more than 12½ acres of land and as such the transfer in his favour would not be hit by provisions of Section 154 of the U.P Zamindari Abolition and Land Reforms Act. Baijnath Singh brought on record a copy of the sale deed dated 31-5-1967 (Ext. 35) executed by him in favour of his grand son Ajai Kumar Singh, son of Harkesh Bahadur Singh, transferring his entire share, which was half, of the land totalling about 30 bighas. The land was transferred for a consideration of Rs. 1500/- only. It was contended on behalf of the defendant that the sale deed was a sham and fictitious transaction and was otherwise also invalid. In the sale deed Ajai Kumar Singh was never shown as a minor or represented by a guardian. It was further urged that a small part of the land (about 4 bighas) had earlier been purchased by Baijnath Singh for a consideration of over Rs. 5.000/-. Actually no amount was paid to the transferor and the land continued to be recorded in his name. We do not consider it necessary to enter into the controversy whether the agreement in question was hit by Section 154 of the U.P.Z.A & L.R Act, as the suit for specific performance of the contract deserves to fail on the view taken by us earlier on other issues.

24. In the suit a decree for the refund of Rs. 10,000/- and interest at the rate of Rs. 12% per annum by way of damages has been claimed in the alternative. We have not believed the case of the plaintiff that Rs. 10,000/- was advanced as earnest money under an agreement for sale of the disputed property. The case set up by the defendant was that he had agreed to transfer 24 bighas of land in favour of plaintiff No. 1, his brother Avadhesh Singh and his son Harkesh Bahadur Singh for a consideration of Rs. 20,000/-. The vendees some how prevailed upon his Mukhtar-am Bharat Singh to execute the two sale deeds for Rs. 6000/- and another for Rs. 4000/- for the whole land of 24 bighas and to pay the remaining sum of Rs. 10,000/- in cash to the defendant. This was obviously done to avoid payment of stamp duty on the real consideration of Rs. 20,000/-. Evidence was led to establish that land covered by the sale deeds Exts. 1 and 2 could easily fetch Rs. 20,000/- or more and that the sale consideration shown in the two sale deeds was inadequate. Evidence was led on behalf of the plaintiffs to show that the sale consideration of Rs. 10,000/- was adequate and that the defendants had executed several sale deeds at rates lower than the rate for which land covered by the sale deeds Exts. 1 and 2 was transferred. For the plaintiffs it was also stressed that it was not open to the defendant to lead evidence to show that the land of the two sale deeds was sold for Rupees 20,000/- and not Rs. 10,000/- the price which has been shown in the two sale deeds in view of Section 92 of the Evidence Act. The defendant admitted to have received in all Rs. 20,000/- at the time the sale deed Exts. 1 and 2 were executed. In support of the pleas that the transfer of 24 bighas covered by the sale deeds Exts. 1 and 2 was settled at Rs. 20,000/- and not Rs. 10,000/- which is the amount shown in the sale deeds, there is only the statement of the defendant uncorroborated by any other direct evidence Ram Padarath (P.W 3), Ram Das (D.W 4), Ram Pal (D.W 5) and Budhram (D.W 6) were examined to prove the rate at which the similar land was available at the relevant time. It does appear from the evidence on record that the defendant transferred considerable land held by him in order to maintain himself at Lucknow and the land was being transferred at varying: rates. Even if it be accepted that the land covered by the sale deeds Exts. 1 and 2 was transferred at a rate lower than the rate prevailing at the time that would not lead to the inference that the sale consideration was settled at Rs. 20,000/- and not Rs. 10,000/- as shown in the sale deeds. We are not inclined to accept the unsupported testimony of the defendant that the price settled was Rs. 20,000/-. In that view of the matter it is not necessary to enter into the controversy relating to the scope of Section 92 of the Evidence Act.

25. We have already held that the plaintiffs have failed to prove that there was an agreement for sale of the disputed property and that Rs. 10,000/- had not been advanced to the defendant in that connection. It is however, admitted that the defendant did receive Rs. 10,000/- from plaintiff No. I over and above the sale consideration for the sale deeds Exts. 1 and 2. The defendant is liable to refund that amount to plaintiff No. 1 and is also liable to pay interest on that amount.

26. In the result, the appeal is allowed. The decree of the Court below is set aside. The suit is, however, decreed for refund of Rs. 10,000/- together with interest at 6% per annum.

27. During the pendency of the appeal the defendant was permitted to remain in possession of the Kothi on payment of Rs. 275/- per month. The plaintiff shall be entitled to recover the claim decreed out of the amount deposited by the defendant in the Court below. The defendant shall be entitled to withdraw the balance, if any.

28. In the circumstances of the case, parties shall bear their own costs.

29. Appeal allowed.