(1) The unsuccessful plaintiff pre. Ferred this appeal against the judgment and decree of the learned subordinate judge, vijayawada in o. S. 353/77 dt. 16 - 2 - 1981 dismissing the suit of the plaintiff for specific performance based on an oral agreement of sale dt. 1 - 11 - 77 in respect of h no 11 - 49 - 311 in sivalayam street, vijayawada. Respondents 1 and 2 in this appeal are defendants 1 and 2 in the suit. The parties in this appeal are referred to in their original character as in the court below. The plaintiff is a firm represented by its partner mohanlal joshi. The first defendant is the owner; she is a resident of eluru town and the plaintiff is the lessee of the ground floor portion on a monthly rental of rs. 140/ -. The case pleaded by the plaintiff in brief is as follow; the first defendant being a house wife without "much education", either her husband somaraju or her son satyanarayana (d. W. 2) used to collect rents from the tenants whenever came to vijayawada and pass receipts. "they were always acting on her behalf as her duly authorised representatives in the management of her property". On 1 - 11 - 71, satyanarayana, the son of the first defendant accompanied by kodeti krishna murthy, carpenter maistry (p. W. 3) came to vijayawada, met mohanlal joshi, the partner of the plaintiff firm and negotiated on behalf of the first defendant the terms for sale of the plaint schedule house the deal was struck for rs. 95, 000/ - and an oral agreements was concluded as per which the plaintiff - firm should pay an advance of rs. 4, 000/ - and the balance consideration of rs. 91,000/ - at the time of execution and registration of the sale deed within one month. Satyanarayana, d. W. 2 received the advance and agreed to send a written agreement under the signature of his mother, the first dcfeu - daat. After going to blum, satyanarayana and carpenter - maistry krishna murthy appraised the first defendant about the terms and conditions of the agreement and obtained her approval and the same was communicated to the plaintiff by a letter ex. A - 1, dt 3 - 11 - 1977 in the hand writing of the first defendant's husband somaraju. A new request was made in the letter ex. A - 1 for an additional advance of rs. 40,000/ - and the balance amount of rs. 51, 000/ - to be payable before the sub registrar at the time of the registration. Somaraju, the husband of the first defendant expressed his desire in the letter ex. A - 1 to come to vijayawada to receive the additional advance of rs. 40, 000/ - and "deliver the written agreement of sale to the plaintiff. " in case it was not possible for him to go to vijayawada, somaraju desired that the plaintiff might send its representative to eluru to receive the written agreement and pay the additional advance of rs. 40, 000/ -. Another letter ex. A - 3 dt. 10 - 11 - 77 was written by somaraju admitting the agreement and informing the plaintiff that he and his wife were not in a position to go to vijayawada in view of their failing health and so it was desirable that the plaintiff sent a representative to collect written agreement and pay the additional advance of rs. 40, 000/ -. Pursuant to this request mohanlal joshi (p. W. 1) , partner of the plaintiff - firm went to the house of defendant in eluru on 15 - 11 - 77 with the advance money of rs. 40, 000/ - at that time the first defendant's husband was not in the house and therefore, the first defendant could not receive the money and deliver the written agreement as promised. But she informed mohanlal that she would arrange to send the agreement through her husband and requested mohanlal joshi to keep the money ready and expressed her anxiety to complete the transaction within one month. Mohanlal joshi, therefore, had to go back to vijayawada' with the money without paying advance and obtaining the written agreement. It was alleged in the plaint that jethtnal bhabutmal, the husband of the second defendant having come to know of the agreement of sale in favour of the plaintiff, conceived the idea of purchasing the house by offering more amount. The plaintiff waited till the end of november, 1977 and as no communication was received from the first defendant, got issued a lawyer's notice ex. A - 5, dt. 2 - 12 - 77 calling upon the first defendant to inform the plaintiff telegraphically the date and the time when the first defendant and her husband proposed to go to vijayawada, receive the money and go through the transaction as promised. A further notice ex. A - 7 was also got issued on 7 - 12 - 77 stating that the plaintiff came to know that the first defendant was trying to enter into a collusive transaction with jethmal bhabutmal, the husband of the second defendant with an intent to defeat the claims of the plaintiff under the suit agreement and requested her to desist from acting in such a clandestine manner. A third notice, by way of a telegram, ex. A - 8 dt. 8 - 12 - 77 was also got issued. The defendant sent a reply notice through her advocate, ex. A - 9, dt. 9 - 12 - 1977 informing the plaintiff that she had already agreed to sell the building to the second defendant and executed an agreement of sale on 27 - 11 - 77. Pleading that this was a collusive action and that the plaintiff has been ready to take the sale deed in terms agreed upon and alleging that the first defendant was guilty of breach of contract, the suit was laid for specific performance or the oral agreement of sale dated 1 - 11 - 77.
(2) The first defendant, the owner of the suit - house in her written statement denied the allegation that she agreed to sell the house at any time to the plaintiff. She was not aware of the alleged negotiations made by her son satyanarayana d. W 2 or her husband somaraju regarding the terms of the sale of the building. She did not authorise them to enter into any negotiations or agreement regarding the sale of her property. She authorised to them was only to collect the rents but never to sell the property. She also denied the allegation that the carpenter krishnaiah, p w 3 was authorised by her to negotiate or conclude the contract. Denying the alleged receipt of advance of rs. 4,000/ - she pleaded that she was not aware of the letters exs. A 1 and a 3 "supossed to have been written by her husband". The further allegation that p w 1 met her husband on 15 - 11 - 77 at her house was also denied. She pleaded that she already agreed to sell the house to the second defendant on 27 - 11 - 77 for a sum of rs 95,000/ - and executed an agreement of sale in her favour the sale of the house was with a view to discharging the pressing debts incurred. The contents of the reply notice ex. A - 9 dt. 9 - 12 - 77 got issued by her through her advocate, she pleaded, may be read as part and parcel of her written statement - the second defendant in her written statement while contending that the plaintiff was not entitled to any of the reliefs prayed for, stated that she purchased the building under a written and duly stamped contract of sale dated: 27 - 11 - 77 (ex b 1) for a consideration of rs. 95,000/ - and paid a sum of rs 20,000/ - towards advance payment of the sale consideration. The telegraphic notice ex. A - 8 said to have sent by the plaintiff was never received either by her or by her husband. She also denied the other plaint averments regarding the right of the plaintiff to enforce the specific performance of the alleged agreement of sale.
(3) On these pleadings the learned trial judge framed as many as six issues. P w 1 mohanlal joshi is a partner of the plaintiff - firm. His son jawaharlal joshi, is another partner of the plaintiff - firm figured as p w 2. Krishna the carpenter maistry who was alleged to have entered into the oral agreement of sale on 1 - 11 - 77 on behalf of the first defendant was examined as p w 3. One sivagopal lunani, a resident of eluru deposed as p w 4 about the message received from p w 1 regarding payment of advance and the plaintiff's right to get the suit house registered. Jandhyala adisatyanarayana murthy. An employee of the plaintiff - firm deposed as p w 5 about the alleged oral agreement of sale and the payment of advance of rs. 4,000/ -. The first defendant gave evidence as d w 1. Her son satyanarayana firgured as d w 2 jethmal, the husband of the second defendant was examined as d w 3. The scribe of ex. B. 1 dt: 27 - 11 - 77, agreement of sale, executed by the first defendant in favour of the second defendant, was examined as d w5. The learned trial judge after considering the evidence on record both documentary and oral, held that there was only a negotiation for sale on 1 - 11 - 77, but not a concluded contract. The failure on the part of the first defendnant to examine her husband somaraju as a witness was not a circumstance in favour of the plaintiff for granting the relief; no adverse inferancc could be drawn against the first defendant because of non - examination of her husband as a witness; it was for the plaintiff to secure the presence of somaraju although he is the husband of the first defendant and might not support the plaintiff's case. There was neither express nor implied agency by which the first defendant authorised her husband and her son satyanara - nana d w 2 and carpenter krishna, p w 3 to enter into negotiations on her behalf or to conclude an agreement. There was no evidence from the side of the plaintiff to show that the suit transaction was entered into because somaraju had held out to be an agent. The learned judge disbelieved the accounts produced by the plaintiff regarding payment of advance amount of rs. 4,000/ - on 1 - 11 - 77 at the time of the alleged oral agreement of sale. The second defendant had no knowledge about the alleged oral agreement. The execution of ex b - 1 agreement of sale dt. 27 - 11 - 77 by the first defendant in favour of the second defendant was established by the evidence of d ws 2, 3, 4 and 5. The registered notice ex a - 5 dt. 2 - 12 - 77 was issued by the plaintiff only to the first defendant but not to the second defendant. The telegraphic notice ex a - 8 dt. 8 - 12 - 77 was issued only to the second defendant; no certified copy of the telegram was produced to prove that it was issued to the second defendant also. Assuming that it was also served on the second defendant, it having been issued on 8 - 12 - 77 long after. Ex b - l dt. 27 - 11 - 77, there was no basis for holding that the second defendant had knowledge about the alleged oral agreement of sale dt. 1 - 11 - 77. For these reasons the learned judge dismissed the suit with costs.
(4) Shri pandurangarao, learned counsel for the plaintiff contends that exs. A - 1 and a - 3 written by the first defendant's husband were not denied by her in her written statement and as obviously they are genuine letters written by her husband she did not exemine him deliberately although he is a crucial witness. As she failed to examine her husband, the court must draw adverse inference. The first defendant's son satyanarayana (d w 2) and her husband somaraju are her agents and they have authority to enter into an agreement on her behalf; she and her husband and son have been living in the same house jointly and their relations were cordial. P w - 3 krishna also had implied authority to bind the first defendant since he was the family carpenter and was also collecting rents on her behalf. The second defendant had full knowledge about the suit agreement dt. 1 - 11 - 77 and therefore, the agreement of sale ex b - 1, executed by the first defendant in favour of the second defendant and the subsequent sale deeds, exs. B - 5 and b - 6, in respect of that house are totally void and, therefore must be set aside. In opposition to these contentions, shri mohammed ali, learned counsel for the first defendant says that the plaintiff being a jewellery firm it is very hard to believe the plea that without taking any written agreement, the firm entered into an oral agreement for the purchase of the house. Even in respect of written instruments, enquiries, are generally made whether the party executing the document has power to do so. There was no obligation on the part of the first defendant to examine her husband as witness. Both the letters exs a - 1 and a - 3 are fabricated and that is the reason why deliberately the plaintiff had not made the first defendant's husband somaraju as a party to the suit. The plaint assertion, that her husband, son and p w 2 carpenter had implied authority to enter into an agreement of sale in respect of the suit house, has been denied by the first defendant in her written statement. Living together as wife and husband and having cordial relations do not constitute the basis for attributing implied agency to the husband to soll the property of the wife without any authorisation from her. The husband of a hindu housewife is not entitled, in the absence of an express power or necessity, to sell the property of his wife. The plaintiff having been a tenant in the suit house and after coming to know that the first defendant entered into an agreement of sale ex b - 1 in favour of the second defendant to sell the house, and fearing eviction from the house and consequent loss of business hatched up a conspiracy to knock away the of the first defendant is only about 30 k. Ms,, from vijayawada and plaintiff had not adduced any reason as to way any document in regard to the alleged oral agreement of sale of the house was not obtained.
(5) Shri satyanarayana prasad, learned counsel for the second defendant submits that the burden to prove what has been pleaded squarely rests upon the plaintiff. Implied agency may in certain circumstances be inferred between husband and wife but not between mother and son. The letters exs. A - 1 and a - 3 said to have been written by the husband of the first defendant have not been proved. P w 3, krishna carpenter who in his evidence referred to these letters was not acquainted with the hand writing of somaraju. The husband of the first defendant. The two letters exs. A - 2 and a - 3 were fabricated by the plaintiff. The second defendant had no knowledge about the alleged oral agreement of sale. Copies of notices exs. A 5 and a - 7 were not sent to the second defendant and, therefore, there is absolutely no basis to believe that the second defendant had notice about the alleged suit agreement.
(6) The plaintiff has been a tenant of a portion of the suit house since 1971 and p w. 1 is a partner of the plaintiff - firm. He deposed that either somaraju, the first defendant's husband or his son d - w - 2 satyanarayana used to collect rents from him but the first defendant never collected the rents directly. On 1 - 11 - 77, satyanarayana d - w - 2 and the carpenter krishna p w - 3 came and offered the house for sale rs. 1,00,000/ - "to the knowledge and authorisation of d - 1. " he offered rs. 85,000/ - but the deal was struck for rs. 95,000/ -. He paid an advance of rs. 4,000/ -. They both promised to come to eluru, obtain a receipt from the first defendant and scad it to him regarding the advance amount paid he also spoke about the letters exs. A - 1 and a - 3 purported to have been written by somaraju. P w - 1 mohanlal joshi has asserted that after receiving ex. A - 3, he went to elura to the house of the first defendant on 15 - 11 - 77 with the money, but as neither the husband nor the son of the first defendant was at home, he, talked to the first defendant and she admitted that the sottlement of the bargain made by her son was true and that she received the advance amount of rs. 4,000/ -. When he informed her that he brought the money she said that "her husband was not there and so 1 may come after his return. She did not raise any objection for executing the agreement as per the said oral agreement of sale she also agreed to execute the sale deed after the receipt of the entire balance within one month. " the evidence brought on record does not support the version of p w - 1 regarding the alleged oral agreement of sale.
(7) The first defendant as d w - 1 has admitted in her evidence that she authorised her husband somaraju and her son satyanarayana d w - 2 "only to collect rents. " she has specifically stated that ''i never authorised to sell the suit property. " she also stated that her husband and son did not inform her that they agreed to sell the suit house to the plaintiff. She denied the receipt of the advance amount of rs. 4,000/ - she also stated that she did not know d w - 3 carpenter krishna and he was not engaged as carpenter by her family. She also denied that she sent her son d. W - 2 and the carpenter krishna p w - 3 to vijayawada to sell the suit house and that p w - 1 mohanlal joshi come to eluru and offered rs. 40,000/ - and she sent him away saying that her husband was not at home.
(8) If the first defendant wanted to have negotiations with the plaintiff - firm for the sale of the house she would not have sent p w - 3 carpenter krishna along with her son d w - 2 satyanarayana. Although p w - 3 krishna stated that he used to collect rents from the tenants of the suit house, p w - 1 has not stated in his evidence about the rents having ever been collected by krishna. The evidence of krishna p w - 3 is not entitled to any credence. P w - 2 jawahar - lal joshi is the son of p w - 1 mohanlal joshi and he is also one of the partners of plaintiff - firm. The version stated by him is that about 2 or three months prior to 1 - 11 - 77 d - 1, her husband and d - w 2 came to the shop and told him that they would sell the house for rs. 1. 10,000/ - but he informed them that as his father was away they might come later and talk to him. Later on he happened to meet d - 1's husband and son satyanarayana at eluru and informed them about his father's arrival at vijayawada. The first defendant's husband told him that he and his son would come for talks. If the first defendant's husband had informed p w - 2 that he and his son would come for talks, it is difficult [to predicate the reason as to why p w - 3 carpenter krishna, who had no knowledge about property affairs was sent. P w - 3 claims that along with d - 1's husband and satyanarayana, he also came to the plaintiff - shop two or three months prior to 1 - 11 - 77 when the offer was made to sell the suit house for rs. 1,10,000/ - but his presence at those talks was not spoken by p w - 2. It must be mentioned in this context that the suit house was under mortgage. P w - 3 krishna claimed that the document (title deed) was brought from the mortgagee and showed to the plaintiff (pw1) on 1 - 11 - 77. Which mortgagee would hand over the document without discharging the debt? the mortgage debt was discharged from out of the advance received by the first defendant under ex. B - 1 agreement of sale executed in favour of the second defendant. It was only thereafter, the title deed ex b - 1 was obtained is the evidence of d. W - 3, the husband of the second defendant and this evidence appears to accord with the realities. The assertion of p w - 3 that the first defendant and her husband sent for him and asked him to go to vijayawada with satyanarayana and have the house sold appears to be highly unbelievable especially in view of the fact that the first defendant's husband is a businessman running a shop at eluru and conversant with worldly affairs. In matters concerning sale transaction of immovable property no businessman would delegate a carpenter, even assuming that p w - 3 is a family carpenter, to carry on negotiations and finalise the deal on his behalf. I think, p w - 3 was only introduced for the purpose of adding a colour of reality to the alleged oral agreement of sale dated 1 - 11 - 77. The documentary evidence sought to be pressed into service by the plaintiff in order to strengthen their case that rs. 4,000/ - was paid as advance relates to the entries in the account books exs a - 12 and a - 13. Both these entries spoken to by jawaharlal joshi p w - 2 are highly suspicious. The account books were not submitted to the sales - tax and income - tax officials at any time. There are gaps and blanks between entries. The entry ex. A - 12 is different from the rest of the hand writing on the same page and the entry is to the effect that a sum of rs. 4,000/ - was credited in the name of p w - 2 towards his transfer khata and that this transfer khata was sought to be linked with the amount of rs. 4,000/ - claimed to have been paid as advance on 1 - 11 - 77 as part of the agreement of sale. If really the amount of rs. 4,000/ - was paid by way of advance, the signature of d w - 2 would have definitely been taken against the entry. Ex. A - 13 entry relates to rs. 40,000/ - said to have been taken by p w - 1 for payment to the first defendant. It was admitted by p w - 2 that even when money was paid to their own blood relations they used to obtain their signatures in the account books. No explanation was forthcoming as to why the same thing was not done in the case of ths alleged advance of rs. 4,000/ - said to have been paid to d w - 2. A part from the fact that the signatures were not obtained. The account books are not entitled to any credence for the reason that there are many blanks and the books were not submitted at any time to the sales - tax and income - tax authorities
(9) The learned counsel for the plaintiff strongly contends that there is no denial in the written statement of the first defendant about exs. A - 1 and a - 3 and also the receipt of the advance money of rs. 4 000/. This contention is not true. In para 6 of the written statement, the first defendant categorically stated that she never agreed to sell the suit house to the plaintiff at any time. She is not aware of the alleged negotiations mad; by her son satyanarayana or her husband somaraju, she did not authorise them to enter into any negotiations and even "the alleged payment of rs. 4000/ - to her son is untrue without any authority and not binding against her. " regarding exs. A - 1 and a - 3 it is stated in the written statement that ''it is equally false to support that this defendant got a letter dated 'rd november, 1977 (a - 1) and 10th navembar. 1977 (a - 3) written, or did she acknowledge the receipt of the advance payment of rs. 4,000/ -. Shs is not aware of the said letters supposed to have b;en written by her husband on 3 - 11 - 77 and 10 - 11 - 77. " in the face of these specific pleas taken by the first defendant it cannot be said that there was no denial on her part regarding the receipt of advance amount and exs. A - 1 and a - 3 written by her husband.
(10) It is true that the first defendant is a house wife except signing her name she cannot write and read telugu and this was admitted by her frankly in her evidence. Her relations with her husband and son are cordial and they are all living in the same house. Her authorisation to her husband and her son, according to her were limited only to collect rents and that her husband was looking after her property affairs. She did not authorise either her husband or her son to sell the house. Could it be said that there was implied agency in favour of the husband to sell the house ? in my view the answer is emphatically in the negative. There is no presumption that merely because a hindu house - wife unacquainted with worldly affairs and enjoying domestic bliss has authorised her husband to dispose of her property.
(11) The law of agency is based on the maxim "qui facit per alium facit per se" meaning he who acts by another acts by himself. Agency in law connotes an authority in one person to create legal relations between the principal and third parties. The relationship of principal and agent may be constituted (i) by express appointment, or (ii) by implication of law from the conduct or situation of parties or from the necessity of the case, or (iii) by subsequent ratification by the principal. Section 187 of the indian contract act reads :
"187. An authority is said to be express when it is given by words spoken or written. An authority is said to by implied when it is to be inferred from the circumstances of the case: and things spoken or written, or the ordinary course of dealing, may be accounted cirumstances of the case. When the husband and wife are living together, is implied agency that the husband is responsible to pay the debts incurred by the wife for purpose of buying essential things for ler maintenance but he is not liable to discharge the debts incurred by her for buying luxuries. If she is living separately from her husband she has no implied authority to borrow money for her support. H. G. Hanbury in his book "principles of agency" says, that; ''the agency rests on (a) cohabitation, (b) in a domestic establishment. Both these requirements are essential. According to the learned author, "as long, however, as people continue to live in houses, the wife will normally do the household shopping and the husband will pay the bills, and so this branch of the law of agency will always remain important. To put it in another way, the law of principal and agent will always cut deeply into the law of husband and wife. The implied authority is by the fact of cohabitation not by legal relations of marriage itself. "
Venkoba rao in his book "law of agency" dealing with the agency between husband and wife says at page 104 :
"thus, the liability of a husband for the acts of his wife depends upon the principle of agency, and the husband can be held liable only, when it is shown that the husband has, expressly or impliedly, authorised or sanctioned what the wife has done. Where the wife can be regarded as the agent of her husband in a certain matter she can bind him by anything done in respect of that matter. The husband cannot be held liable for the acts of his wife. Unless an authority, express or implied, can be shown to exist."
The presumption of implied authority of the husband exercised by the wife is not absolute but is rebuttable.
"if the wife had separate property, the presumption is that she acts on her ownauthority. (vide v. G. Ramachandran on law of agency at pages 114 and 115) if a third party has been led into an honest belief in the existence of the authority of the agent, even though the agent acted in excess ofhis actual authority. It was held in one of the earliest cases decided by the privy council in rampertab vs. G. Marshall, 1899 1lr vll. Xxvi calcutta (p c) p 701 chitty on contracts vol ii at page 10 para 2936 says : "arising from the fact of cohabitation in a domestic establishment there is a presumption that the wife has authority to order necessaries suitable to her husband's style of living, for such departments of their household as the wife usually has under her control and to pledge her husband's credit for that purpose. "
In prager vs. Blatspiel, stamp and heacock limited, 1924 (1) k. B. Page 566, it was held that the doctrine of agency of necessity extends to actual commercial necessity to sell the goods if the agents acted bona fide.
(12) Based on the aforesaid rulings and the views of lerrned authors, shri panduranga rao contends that somaraju, the husband of first defendant, had implied authority to enter into an agreement of sale in respect of the suit house. I cannot agree with this contention. None of the aforesaid rulings or the views expressed by the authors support the proposition that a hindu husband has implied authority to sell the property of his wife if they are living together and leading a harmoneous family life. There is no such presumption in law. Pollock and mulla in their treatise on indian contract act expressed the view at page 845 :
"a husband has no authority by virtue of marriage to make a contract on behalf of his wife. "
If the wife has her own property i think, the presumption is that she acts on her own authority. The ancient doctrine that the husband and wife are one person is not true in modern times. The wife cannot be reduced to a subordinate position in respect of her property matters by the application of the doctrine of implied agency. The obligation on the part of the husband to meet the requirements of his wife stems from the fact of cohabitation in a domestic establishment. By implied authority the wife acts as the agent of the husband making the later liable for the expenditure incurred by her in respect of necessaries of life. There cannot be any such implied authority in a case where the wife owns separate properties. Marriage will not make the husband an agent of the wife to deal with her property matters without her authority. In phuljari devi v mithal lal, air 1971 all. 494 the allahabad high court held that by virtue of marriage a husband has no authority to contract on behalf of his wife.
(13) It is true that the first defendant in her evidence as d w - 1 clearly admitted that her husband and somaraju and son satyanarayana used to collect rents on her behalf, except signing her name in telugu she cannot read and write telugu and that she had implicit faith in her husband who has been looking after her property affairs. The house in question was bequeathed to the first defendant by her senior paternal uncle who died issue - less. Although she is a house - wife unacquainted with worldly affairs, she categorically stated in her evidence that she did not authorise either her husband or son to enter into any negotiations with the plaintiff - firm for the sale of (he suit house. These are not circumstances, in the absence of express authority, to infer implied agency entitling the husband to enter into negotiations for the sale of the property.
(14) Whether there was any agency of necessity ? in the present case there are no circumstances whatever warranting inference that there was any necessity on the part of the first defendant's husband somaraju to enter into the alleged agreement of s ale with the plaintiff. The usual instances of agency of necessity relate to sale of perishables by the carrier, and the master of a ship pledging its credit to meet an urgent need in exceptional cases.
(15) The case of the plaintiff is that d. W - 2 satyanarayana and p. W - 3 carpenter krishna are the authorised agents of the first defendant and they entered into the alleged oral agreement of sale on 1 - 11 - 77 which was later confirmed by somaraju, the husband of d - 1, by writing the two letters exs. A - 1 and a - 3. As already observed by me, p. W - 3 carpenter krishna's evidence is not entitled to any credence. It is unbelievable that the first defendant being the wife of a businessman would have entrusted to a carpenter the responsibility of negotiating the sale of the suit house. There is no evidence to show that p. W - 3 was the authorised agent of the first defendant. So far as d. W - 2 satyanarayana is concerned, although he is the son of the first defendant, he has no authority to enter into any negotiations regarding the sale of the house. The first defendant as d. W - 1 in her evidence categorically stated that she did not give authority to either her husband or her son satyanarayana to enter into negotiations with the plaintiff for the sale of the house.
(16) Exs. A - 1 and a - 3 are the two documents on which strong reliance was placed by the learned counsel for the plaintiff in order to draw the conclusion that by these two documents, the oral agreement of sale dt. 1 - 11 - 77 was ratified by somaraju, the husband of the first defendant. I have already held that somaraju had neither express permission nor implied authority to negotiate for the sale of the house and, therefore, the question of his ratifying by exs. A - 1 and a - 3 the alleged oral sale dt. 1 - 11 - 77 would not arise. The documents a - 1 and a - 3 were got marked through p. W - 3 carpenter krishna. Ex. A - 1 is on the letter - head of laxmi fancy and stationary stores which is owned by the first defendant's husband. The english translation of ex. A - 1 reads as follows : laxmi fancy and stationary stores prop: c. Soma raju main bazar, ehiru dt. 3 - 11 - 77 to sri jawaharlal dhamia and co; with regards by the above named addressee (d - 1's husband) sir, my son has told to me all the things after arrival from you. You have settled for 95 instead of one lakh which i have requested. You are in our shop. I have not objected for the same since it will be pleased to you. You have to bring 40 on or before 9th. You can give the amount by writing agreement or by le'ter from me. Pay the remaining 51 at registrar office. Register has to be effected within one month. Inform when shall have to come there or if you come here, with the amount we can talk all the things here. Write reply letter with all particulars. Convey my regards to mohanlal. " ex. A - 3 which is on a plain paper bears the date 10 - 11 - 77. Its english translation reads :
"to eluru, dt. 10 - 11 - 77 shri jawaharlal dhamia and co , with regard's (namasthe) ' by soma raju; sir, i have written a letter to you earlier. In reply to that you have informed me through corpenter mastri sri krishna asking me to come to vijayawada on 15 - 11 - 77 for writing of agreement and taking the amount. My wife chittamma is not feeling well in my house and my daughter has advised me not to move immediately since my eye got operated by him. Hence, i request you to come here without feeling any difficulty and you can take agreement after writing and pay the amount here at that time. Please inform me about the same in your reply letter immediately. Convey my regards to mohanlal."
Sd/ - chinta soma raju end ; one addressed cover
(17) Exs. A - 1 and a - 3 were produced by p. W - 1. Even at the time of marking of these two letters objection was taken on behalf of the first defendant contending that she was not admitting the contents and signatures in both the letters. P. W - 3 carpenter krishna claimed in his evidence that both the letters were read out by somaraju to the first defendant and she agreed to the contents and approved of the same. He also claimed that both the letters were signed by somaraju in his presence. There is no mention of p. W - 3 in ex. A - 1. I have already held that p. W - 3's evidence is not entitled to any credence. I cannot agree with the argument of shri panduranga rao for the plaintiff that the failure of the first defendant to examine her husband somaraju to disprove exs. A - 1 and a - 3 must necessarily lead to the inference that both the letters wire written by somaraju.
(18) In gopal krishnaji vs. Mohd. Haji lateef, air 1968 sc 1413, appellant maintained accounts and income in respect of the property which was the subject matter of the litigation but did not produce accounts taking the stand that it was not his duty to produce unless he was called upon to do so and the onus was on the opposite parly in respect of ownership of the property in question. Rejecting this contention his lordship ramaswamy, j speaking for the three - judge bench held:
"even if the burden of proof does not lie on a party the court may draw an adverse inference if he withholds important documents in his possession which can throw light on the facts at issue. It is not, in our opinion, a sound practice for those desiring to rely upon a certain state of facts to withhold from the court the best evidence which is in their possession which could throw light upon the issues in controversy and to rely upon the abstract doctrine onus of proof."
In jagdishprasad vs. State of maharashtra, air 1970 bombay 166 the bombay high court held that a party asking the court to draw against the other party an adverse inference under sec. 114 (g) of the evidence act must.
" lay the foundation for it by eliciting evidence which would show that the witness in question was available to the other party for the purpose of giving evidence at the time of the hearing " both the rulings in my view, arc of no assistance to the plaintiff. In the bombay case the accused persons were charged for offences under sections 147, 149 read with 325 ip c. The contention was that although four persons were mentioned as eye witnesses in the first information report only two were examined and, therefore, adverse inference should be drawn against the prosecution. Rejecting the plea vimadlal, j held as stated supra. In gopalakrishnaji's case (4 supra) the party admitted that he was maintaining accounts but did not produce the same taking the stand that the onus was on the opposite party. In the present case, the first defendant in her evidence as d. W - 1 apart from specifically stating that she did not authorise her husband or son to enter into negotiation for the sale of the suit house, also stated that "i do not know the hand writing of my son or my husband. " her son satyanarayana as d. W - 2 denied that the letter - head on which ex. A - 1 was written pertains to his father's establishment. He stated "i cannot correctly say if ex. A - 1 is in the hand writing of my father. "
(19) Under sec. 114 of the evidence act, it is open to the court to presume the existence of any fact which it thinks likely to have happened having regard to the common course of natural events, human conduct and public and private business, in their relation to facts of the particular case. Iiiustration (g) says,
"that evidence which could be and is not produced would, if produce, be unfavourable to the person who withholds it."the presumption under sec. 114 is optional. The peculiar nature of the oral agreement of sale pleaded by the plaintiff coupled with the fact that no circumstances were brought on record lending credibility to the alleged oral agreement are weighty factors for not drawing the adverse inference. Merely because the letters were claimed to have been written by somaraju, the husband of the first defendant, it was not incumbent upon her to examine her husband as a witness on her behalf. It is for the plaintiff to prove what has been pleaded. No reason was forthcoming as to why the plaintiff had not made somaraju a party defendant when the very foundation of the plaintiff's case rested on exs. A - 1 and a - 3. The obligation to produce evidence in possession of a party to the suit does not extend to examining third parties as witnesses. Somaraju not being a party to the suit, he was not obliged to go into the box and depose as to the truth or otherwise of exs. A - 1 and a - 3. Further it must also be stated that exs. A - 1 and a - 3, had not cropped up suddenly in the course of the trial but, they being the very foundation of the case pleaded, the lapse on the part of the plaintiff in not making somaraju a party defendant, for outweighs the failure of the first defendant to examine him as witness and so in the particular circumstances of the case, i think, it was not incumbent upon her to examine him as a witness on her behalf. And so the presumption under sec. 114 (g) is not attracted, especially when the evidence of p. W - 3 was rejected as not worthy of any credence, (vide : lachman vs. Meena ; air 1964 s c 40 at 50)
(20) Assuming that exs. A - 1 and a - 3 were written by somaraju, they do not in any way bind the first defendant since she had not authorised her husband to sell the suit property. The evidence adduced by the plaintiff is totally unacceptable. No circumstances were forthcoming as to why a written agreement could not be obtained especially when eluru, the place of residence of the defendant is only about 35 kms. From vijayawada. In an important matter like entering into a negotiation for the purchase of a house it is unthinkable that a business man would have proceeded upon an oral agreement of sale and made arrangements for completing the transaction. The payment of rs. 4,000/ - by way of advance is not supported by acceptable evidence the accounts exs. A - 12 and a - 13 are not entitled to any credence: they are suspicious in nature. What is rather suprising is that the plaintiff had not sought the alternative relief for the return of the advance amount of rs 4,000/ - claimed to have been paid on 1 - 11 - 77,
(21) So far as the second defendant is concerned, there is no evidence show that she had notice about the alleged oral agreement of sale. The lawyer notices exs. A - 5 and a - 7 were not marked to her. It was not established that a copy of the telegraphic notice exs. A - 8 dated 8 - 12 - 77 marked to the second defendant. Even if the telegraphic notice had been sent, long prior to that, even by 27 - 11 - 77, she concluded the agreement of sale ex. B - l with the first defendant for the purchase of the suit house.
(22) In the circumstances, i hold that the second defendant is a bona fide purchaser for value without notice of the alleged agreement of sale dated 1 - 11 - 77.
(23) For these reasons the appeal fails and accordingly it is dismissed with costs. The judgment and decree of the court below are confirmed.
Comments