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REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.8224 OF 2003

K. NANJAPPA (Dead) BY LRs.     …     APPELLANT(S) VERSUS

R.A. HAMEED alias AMEERSAB (Dead)  BY LRs. AND ANOTHER         …  RESPONDENT(S)

JUDGMENT

M.Y. EQBAL, J.:

Aggrieved by the judgment and orders dated 25.6.2003

passed  by  the  High  Court  of  Karnataka  in  Regular  First

Appeal No. 201 of 1992, the appellants have preferred this

appeal by special leave. By impugned judgment, High Court

partly allowed the appeal, set aside the judgment of the trial

court and decreed the suit of the plaintiff-respondents herein

for specific performance as well as for recovery of possession

of suit items I, II and III.

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2. The factual background as will appear from the trial

court  judgment  need  to  be  highlighted  and  reproduced

hereunder.

3. The plaintiff-respondent claimed to be the son of Late

P. Abdul Rahiman Sab alias Jambusab.  The late Jambusab

had three wives. The first wife’s son was Abdul Sakoorsab,

who died in the year 1967.  The first plaintiff and his younger

brother R.A. Rasheed are the children of Jambusab from his

second  wife  Azizabi.   Through  the  3rd wife  Mahajambi,

Jamusab had begotten 4 children namely, A. Abdul Subhan,

R.  Abdul  Majeed,  Maqubal  Jan  and  Aktharunnisa.   The

children  of  late  Jambusab  could  not  agree  to  divide  the

properties of late Jambusab.  They litigated and ultimately in

R.A. 133/49-50 on the file of the High Court, a final decree

was passed and the properties described in the Schedule to

the plaint fell to the joint share of the first plaintiff and his

younger  brother  R.A.  Rasheed.   The date  of  the  decree  is

22.08.1950.  The first plaintiff and his younger brother thus

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became  the  exclusive  joint  owners  of  the  suit  schedule

property and from the date of the High Court decree namely

22.08.1950.  The first item of the suit schedule which was

designed as a Cinema building was leased jointly by the first

plaintiff and his younger brother R.A. Rasheed to late N.K.

Subbaiah  Shetty  and  one  Rattanhalli  Ramappa  jointly  by

means of a registered lease deed dated 26.02.1951 specifying

therein a period of 15 years for the running of the lease.  The

said lease by the terms provided inter alia for a monthly rent

of Rs. 400/- to be paid in equal halves to the first plaintiff

and R.A. Rasheed.  The lessees had to advance Rs.10,000/-

which  will  be  treated  as  a  charge  on  item  no.  1  of  suit

Schedule.   All  the  equipments  such  as  cinema  projector,

electric  generator,  furniture  and  other  accessories  were

purchased  by  the  said  lessees  which  they  had  to  provide

under the contract and the theatre was equipped for showing

films.   It  was  also  a  term  under  the  lease  that  these

equipments  projector,  generator  etc.,  should  become  the

property of the first plaintiff and his brother R.A. Rasheed on

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the  termination of  the  lease.   While  only  Rs.  5,000/- was

given as advance, the expenses of the balance of Rs. 5,000/-

which was retained by N.K. Subbaiah Shetty and Rattanhalli

Ramappa has been accounted for and thus only Rs. 5000/-

is the actual amount of advance.

4. But,  N.K.  Subbaiah  Shetty  and  his  joint  tenant

Ratanhalli  Ramappa  who  were  astute  businessmen  found

later 2 years that they could not manage the theatre property

to  earn  profits.   They  both  successfully  induced  the

inexperienced  1st plaintiff  to  enter  into  a  contract  dated

05.08.1953  with  them  which  ostensibly  appear  to  be  a

sub-lease of their rights to the 1st plaintiff.  Though the 1st

plaintiff and his younger brother had become entitled to be

rightfully to the equipments in the cinema theatre as per the

terms of the lease date 26.02.1951, they were not even under

any liability to pay the same on the termination of the lease.

N.K. Subbaiah Shetty astutely got a provision made in the

so-called sub-lease dated 05.08.1953 that  he should get a

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rent of Rs. 250/- for himself which was in reality interest for

sum of Rs.  5000/- given as advance,  but which had been

recovered  by  N.K.  Subbaiah  Shetty  during  the  period  the

lease was subsisting in his favour.  Besides nothing was due

to  be  paid  to  N.K.  Subbaiah  Shetty  as  it  was  voluntary

surrender to ease evidence by the so-called sub-lease.  The

return  of  Rs.  250/-  per  month  which  could  only  be

demanded as interest on the sum of Rs. 5000/- advanced

was usurious Loans Act in force in Mysore.  The so called

sub-lease dated 05.08.1953 was therefore illegal for want of

consideration.  Since Rs. 5000/- could not be claimed legally

as it has been recovered and also the provisions for payment

of Rs. 250/- P.M. to N.K. Subbaiah Shetty, being usurious

interest was also not recoverable in law.  The so called lease

dated  05.08.1953 operated in  Law only  as  a  surrender  of

lease, as the fight of lessor as well as lessee became merged

in the plaintiff who was a joint owner of item No. 1 of the suit

schedule under Section 111(d) of the T.P. Act.  He could not

be  deemed  to  be  a  lessee  of  his  own  building  and  the

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sub-lease was void to the extent that it provided Rs.250/-  to

be  paid  as  rent  to  N.K.  Subbaiah  Shetty,  the  possession

which accrued to the plaintiff on the execution of the deed

dated 05.08.1953  was, therefore, free from all liability to pay

any amount to N.K.  Subbaiah Shettty.   R.A.  Rasheed,  the

brother  of  the  1st Plaintiff  executed  a  pronote  dated

24.01.1953 benami in the name of C. Shambulingaiah the

real beneficiary being the 1st defendant.  The defendant filed

a  suit  in  O.S.  1/54  as  Power  of  Attorney  Holder  of

C.Shambhulingaiah against R.A. Rasheed in the then Court

of Sub-Judge, Mandya and obtained ex parte decree and in

Execution No. 38/54  got the undivided half share of R.A.

Rasheed in the Suit schedule 1st item attached.  Thereafter,

in Ex. No. 5/56 the 1st defendant as Power of Attorney holder

sued out further execution and brought to sale the half share

of R.A. Rasheed and purchased the same in the name of C.

Shambulingaiah in Court auction held on 12.07.1956,  the

bid amount being Rs. 8359.37. Though the half share itself

was worth a lakh of rupees at lease R.A. Rasheed himself was

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kept in dark throughout as services of all the processes were

made to appear, as though R.A. Rasheed had refused them.

Again  in  the  name  of  Shambulingaiah  who  was  the

brother-in-law of the 1st defendant delivery was sued out and

since actual delivery could not be obtained of the undivided

half  share  of  R.A.  Rasheed the  1st defendant  maneuver  to

take symbolic delivery of the said half share on 02.04.1958 in

Misc. 34/56.  Thereafter, the first defendant arranged to get

a sale deed executed by C. Shambulingaiah in the name of

Amruthamma the  2nd defendant,  wife  of  the  1st defendant.

There was no consideration paid for this deed.  It means the

representative, a substitution of one benamidar for another,

the motive being that the properties should remain with the

1st defendant in the name of his wife.

5. The first plaintiff had executed a demand pronote for

Rs.1335/-  dated  10.05.1952  in  the  name  of  one  Krishna

Shastry, who was also a benamidar for first defendant.  It is

learnt that a suit was got filed in O.S.449 of 1953 on the file

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of  the  Munisiff,  Srirangapatna,  and  getting  refusal

endorsement made on the summon keeping this 1st plaintiff

ignorant of the said proceedings.  The first defendant got an

ex-parte decree behind the back of the plaintiff.  It is learnt

that the said decree was got transferred to the name of 1st

defendant  and  the  1st defendant  sued  out  execution  in

Ex.No.217/61 on the file of the Munsiff, Srirangapatna and

got attached the half  share of the first plaintiff  in the suit

schedule items 1 to 3.  Of course, all the processes of the

Court were got done in secret by the 1st defendant who has

vast  experience  in  court  work,  and  the  1st plaintiff  was

throughout ignorant of the same.  After attachment, the first

defendant  induced  N.K.  Subramanya  Shetty  to  lend  his

name,  thus  gave  an  assignment  to  the  name  of  N.K.

Subramanya Shetty with the conveyance of his brother N.K.

Subbaiah Shetty  of  the decree in O.S.449/52.  This again

was  maneuvered  without  any  consideration  to  please  the

multi-millionaire  N.K.  Subbaiah  Shetty,  who  himself  was

anxious to get a share in illegal gains.  It is learnt that the 1st

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defendant,  however,  got  a  general  power  of  attorney  from

N.K.  Subbaiah  Shetty  and  continued  further  execution

proceedings suppressing the facts that only half the share of

the first plaintiff at least worth Rs.1,50,000/- in items 1 to 3

could be brought to sale.  The 1st defendant put up the entire

schedule  item  for  sale  and  bid  at  the  court  auction  on

14.02.1962 for a paltry sum of Rs.325/-.  Thus stabbing at

the back of the 1st plaintiff and got the same confirmed on

06.04.1962.   The  sale  and  subsequent  confirmation  is

vitiated and void as only half share was attached, but against

the  attachment  itself  the  full  properties  including  the

properties which were not subject matter of the attachment

were brought to sale and purchased.

6. Since the first defendant openly boasted that he had in

reality become the owner of the entire properties of the first

plaintiff, the first plaintiff made inquiries and came to know

about the treacherous and illegal acts of  the 1st defendant

who through abuse of processes of court had maneuvered to

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get the sale held and confirmed including the half share of

this first plaintiff, and the first plaintiff, therefore, got filed

Misc.No.49 of 1962 to set aside the sale on the ground of

fraud.   There  was  protracted  litigation  which  ended  in  a

compromise  petition  dated 17.02.1966 being  filed  whereby

the  first  plaintiff  agreed  to  pay  Rs.7000/-  within  three

months from the date of compromise and if  such payment

was made within time the petition to stand allowed and in

default the petition to stand dismissed.   The first plaintiff

thereafter  paid  the  amount  in  3  installments.   The  first

installment being Rs.2000/-,  in all  Rs.7000/- within three

months as per compromise petition, to the counsel for the

first defendant.  The first defendant has acknowledged the

receipt of the above payments to his counsel in a letter dated

10.05.1966 written by him to the first plaintiff and again in

another  letter  of  first  defendant  to  first  plaintiff  dated

31.07.1967.   However,  it  is  learnt  that  the first  defendant

treacherously kept quite without getting the payment in full

reported  to  court  with  ulterior  motives.   Also,  the  first

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defendant  who  had  got  half  the  share  of  Abdul  Rasheed

conveyed benami to the name of his wife Amruthamma, the

second defendant  entered into an agreement with the first

plaintiff’s wife on 29.11.1965 executed by the 1st defendant

as power of attorney holder of the 2nd defendant whereby he

agreed to convey half the share of and another house which

is  described  as  4th item  in  suit  schedule  for  a  sum  of

Rs.18,000/-.   The  consideration  of  Rs.18,000/-  for  this

agreement has been paid by the first plaintiff on behalf of 2nd

plaintiff as follows:-

(a)  As  per  agreement  dated  29.11.1965  as  acknowledged therein Rs.8000/- has been paid to the 1st defendant.

(b)  As  per  receipt  dated  09.02.1966  executed  by  1st defendant,  Rs.5500/-  has  been  paid  thus  totalling Rs.13,500/- out of Rs.18,000/-.

7. Thereafter, the first defendant alleged to have executed

a fresh agreement dated 02.09.1967 for himself and as power

of  attorney  holder  of  both  2nd defendant  and  N.K.

Subramanya Shetty,  agreeing to convey by a separate sale

deed also item 1 of suit schedule in full and also item 2 of

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suit schedule (house in Gowligara Street) and item 3 land,

item 4 house for consideration of Rs.25,000/-which was fully

paid as detailed below:-

(a) Rs.7000/- paid to 1st defendant as recounted in para-9 supra  and acknowledged  in  letters  dated  10.05.1966  and 31.07.1967 towards compromise petition in Misc.49 of 1962.

(b) Rs.4500/- paid before witnesses on 02.09.1967 when the agreement was executed.

(c) Rs. 8000/- paid to first Defendant as per agreement dated 29.11.1965.

(d) Rs.5500/- paid as per receipt dated 9.2.1966 wherein the amount  of  Rs.8000/-  as  per  (a)  above  have  also  been acknowledged.

8. The first plaintiff  allegedly running a cinema theatre

item  No.1  of  the  suit  schedule  all  along,  as  he  was  in

possession of the same ever since 01.08.1953.  However, in

the morning of 05.09.1967, the first plaintiff was surprised to

find himself under arrest along with his sons and another

Pasha, a relative, by the police authorities.  It was learnt that

the first defendant had lodged a complaint to the police that

he  had  been  dispossessed  of  item  No.1  of  suit  schedule

Cinema Building even though he had no possession.  There

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were account books and other important papers and several

materials forming part of the cinema building belonging to

the first plaintiff and kept within the premises of item No.1 of

the  suit  schedule.   The  first  defendant  with  whom  K.N.

Subramanya  Shetty  and  N.K.  Subbaiah  Shetty  were  in

collusion  with  the  help  of  police  got  the  first  plaintiff

dislodged from item No.1 of suit schedule with the cinema

equipment, furniture etc.  The papers included among others

receipt  executed  by  defendant  No.1  and  N.K.  Subbaiah

Shetty for monies paid by the plaintiff from time to time and

the  accounts  books  contained  entries  in  respect  of  this

payment.  The first and N.K. Subbaiah  Shetty, thus, were

successful in laying their hands on valuable evidence and it

is believed that show of force by the police and subsequently

dispossession of the first plaintiff from item No.1 maneuvered

to  get  these  valuable  records  into  their  custody  for  being

hushed up.  The police did not even get the mahazar written

at  the  time  of  their  forcible  entry  into  item  No.1.   The

complaint  of  the  first  defendant  became subject  matter  in

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C.C. 1758/67 and C.C. 370/68 before the Special First Class

Magistrate, Srirangapatna and in the said cases the plaintiff

and other accused were also acquitted.  The finding is that

the so called delivery taken by the 1st defendant in the civil

court  is  only  a  paper  delivery  and  not  amount  to

dispossession  of  the  plaintiff  of  the  first  item  of  the  suit

schedule.  The Magistrate also directed return of the key of

the  first  theatre  for  the  lock which had been kept  by  the

police at the time of illegal seizure to the first plaintiff. This

was symbolical delivery of the actual possession to which the

1st plaintiff was entitled in law.  The 1st plaintiff has filed an

application  for  actual  possession  being  delivered  in

pursuance  of  the  judgment  before  Special  1st Class

Magistrate, Srirangapatna, which was pending.  The plaintiffs

have also included in this suit claim for damages, caused to

them  by  illegal  arrest  and  distraint  of  their  articles  and

account books and papers and also mesne profit  accruing

due to dispossession which has occurred on 05.09.67.  Since

the  defendant  nos.  1  and 2  and N.K.  Subramanya Shetty

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have failed  to  execute  a  sale  deed in accordance with the

terms of the agreement dated 02.09.67 entered into by the

first defendant for himself and on behalf of defendant no.2

and N.K. Subramanya Shetty in respect of item No.1 of suit

schedule,  the  suit  was  filed  for  specific  performance  of

contract dated 02.09.67.  As some of  the documents have

been produced by the first plaintiff in criminal cases before

the  Special  1st Class  Magistrate,  Srirangapatna,  certified

copies  of  the  same were  produced  along  with  the  original

documents in the custody of the plaintiff with document list

in triplicate for perusal of this Court.  N.K. Subbaiah Shetty

has been included so as to give a binding decree against him

also.

9. The  trial  court  formulated  the  following  issues  for

determination:-

1)  Whether  the  1st defendant  was  the  Power  of  Attorney Holder of the 2nd Defendant?

2)  Whether  the  1st defendant  for  himself  and as Power  of Attorney Holder of 2nd defendant executed an agreement of sale dated 2.9.1967 agreeing to convey the plaint schedule properties in favour of the plaintiff?

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3) Whether under the said agreement the plaintiff paid the amount to the 1st defendant as mentioned in para 11(a) (b) (c) (d) of the plaint?

4)  Whether  the  plaintiffs  are  entitled  to  the  specific performance of the agreement of the sale and for possession of the schedule properties?

5) Whether the plaintiffs are entitled to Rs.93,600/- towards the mesne past profits?

6)(a)    Whether the proceedings in Ex. No.217/61 and Misc. No.34/69 and orders thereon are fraudulent and without  jurisdiction  and as such they  are  void,  illegal and wrongful as stated in para ¼ of the plaint?

(b) Whether the defendants are estopped in challenging the suit agreement dated 2.9.67 by their conduct for the reasons stated in para 16 of the plaint?

(c)  Whether the plaintiffs prove that they are ready and willing to perform their part of contract of  sale as per agreement dated 2.9.1967?

(7)  Whether  the  defendants  are  entitled  to  compensatory costs under Section 35(a) of C.P.C.?

(8) To what reliefs are the parties entitled?

Issue  No.1  has  been  answered  in  affirmative  holding  that

defendant-appellant  no.1 was the P.O.A. holder of  his wife

defendant no.2.

10. While deciding issue Nos. 2-4 together, the trial court

came to the conclusion that the plaintiff-respondent failed to

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prove  that  the  agreement  of  sale  dated  2.9.1967  was

executed  by  the  defendants-appellants  and,  therefore,  got

entitled to the specific performance of agreement to sell.  The

reasoning given in deciding the issues inter alia are that the

alleged agreement was executed in a quarter sheet of paper

written in small letters.  No reason has been attributed as to

why  a  small  piece  of  paper  was  used  for  writing  the

agreement ExP-1.  The relevant portion of the finding arrived

at by the trial court can be extracted hereunder :-

“If we carefully go through the document at Ex. P.4 it is clearly stated that the defendant 1 as the power of attorney of the 2nd defendant and Subramanya Shetty as executed Ex.P.1 in favour of the  first  and  the  2nd plaintiff,  after  taking  Rs.4,500/-  this documents has been written on very old quarter sheet piece of paper which is written in very small letters.  Ex.P.1 is not at all written in usual course.  No reasons are assigned in the evidence of the PW.1,2 and 5 as to why a small piece of paper is used for writing Ex.P.1.  Ex.P.1 is written in a city like Mysore.  It is not written in a remote small village, wherein the scarcity of paper can be expected.  It is further pertinent to note here that the shop premises  of  the  first  defendant  was  situate  admittedly  in Santhepete which is very near to Devaraja Market and Srirampet, which are heart of business centers of Mysore.  Further, Ex.P.1 is admitted written before Noon. ….. time P.W.1 has stated that between 9 a.m. to 1 p.m. he has written Ex.P.1.  Further P.W.5 has stated by about 2-30 p.m. Ex. P.1 is written, P.W.2 has stated by about 12 noon Ex.P.1 is written, that means Ex.P.1 is written in a broad day light.  If the handwriting contained in Ex.P.1 in small letters reduced to writing atleast the same will cover 2 full sheets of papers meaning thereby it may go to cover 4 pages of hill size papers.  No reasons are assigned as to why Ex.P.1 is written

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in such a congested manner.  Non availability of the paper to write Ex.P.1  cannot  at  all  be  expected nor  anticipated in a city  of Mysore, that too near the first defendants shop which is in the business centre of Mysore City.  It is admitted by all the witnesses that there are several shops of stamps vendors and advocates offices.  If that be the case, that would not have been any difficulty to secure the required paper  to write  Ex.P.1.   Further,  if  we carefully go through the contents of Ex.P.1, it goes to show that all the suit properties are agreed to have been sold for Rs.25,000/- and the amount of Rs.20,500/- has been paid to the defendant earlier to 02-09-67.  Further, it is also clear that the amount of Rs.4,500/- was also paid to the defendant 1.  That means only the stamp papers to get the registered sale deed were required to be obtained.   No  reasons  are  assigned  the  any  of  the  plaintiffs witnesses as to what was the difficulty in purchasing the stamp paper to execute the reg. Sale deed regarding the sale mentioned in Ex.P.1.  It is not the case of the plaintiff, that they were unable to purchase required stamp papers on the date of Ex.P.1 due to paucity of the funds.  If it was really a genuine sale or tried to be depicted before Court, definitely the reg. Sale deed itself would have  been  got  executed  since  except  appearing  before  the sub-registrar the first defendant is not required to do anything else but to sign the reg. Sale deed and if the sale was really a genuine sale nothing prevented the plaintiff to take the first defendant to the  office  of  the  Sub-Registrar  and  to  get  executed  the  reg. Document  in  the  office  of  the  concerned/Sub-registrar Pandavapura but no reasons assigned as to why the reg. Sale deed is not got executed from the 1st defendant who is admittedly the holder of the general power of attorney from the 1st defendant and  Subramanya  Shetty,  who  were  the  owners  of  the  suit schedule properties on 02-09-67.  Further, it is pertinent to note here that though it is mentioned in Ex.P.1 that the plaintiffs were required to make some arrangements regarding the amount to purchase the stamp papers and the registration fees etc. but none of the witnesses P.Ws. 1,2 and 5 speak about this aspect of the case.”

11. On  the  question  of  payment  of  the  consideration

amount, the trial court gave finding against the respondents.

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Finally, the trial court held that since issue nos. 2 to 4 have

been  decided  against  the  plaintiffs,  the  relief  for  specific

performance cannot be granted.

12. High  Court  being  the  first  appellate  court,

re-appreciated the evidence and came to the conclusion that

the findings recorded by the trial court are perverse in law.

The  appellant  court  discussed  the  evidence  of  PW-1,  the

scribe of the document, who deposed that the agreement was

written as per instructions given by appellant No.1 and the

said  document  was  signed  by  him.   The  appellate  court

further  discussed  the  evidence  of  other  PWs  who  have

attested  the  document  Ex.P1.   The  Appellate  Court  found

that  in  a  criminal  proceeding  between  the  parties,  the

witness  gave  evidence  and  produced  the  agreement  Ex.P1

which was marked by the criminal Court as Ex.D.

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13. The  Appellate  Court  dealt  with  the  relevancy  of  the

evidence and the judgment recorded by the Criminal Court

and held as under:

“17. The conclusion drawn by the Criminal Court with regard to the document – Ex.P.1 in regard to its execution etc. are certainly relevant and it can be relied upon as a piece of evidence by the plaintiffs in support of their case. The observations made by the Criminal Court regarding execution of agreement – Ex.P.1 in its judgment – Ex. P.4 are certainly admissible U/s 13 of the Indian Evidence Act in support of the claim of the plaintiffs regarding execution of the document – Ex.P.1 by defendant No.1.  Therefore, the Trial Court was not at all justified in ignoring such evidence on the ground that the judgment of the Criminal Court is not binding on the Civil Court.  May be, that the judgment of the Criminal Court is not binding on the Civil Court. But, the observations made by a competent Court with reference to certain document would certainly be relevant even in a civil case, where the very same document was a subject matter of challenge. 18. In the instant case, it is not in dispute that the very same document – Ex.P.1 was produced before the Criminal Court wherein, plaintiff No.1 was prosecuted on the charge of trespass and the Criminal Court having examined the said  document  has  made  certain  observations  with reference to such document and that being so, when the very same document sought to be questioned in a civil case, the observations by a Criminal Court will certainly have relevance.  In fact, the learned counsel for the respondents had  advanced  a  contention  that  this  document  was created/concocted  for  the  purpose  of  defence  in  the criminal case.  In view of such contention raised on behalf of the respondents, the observations made with reference to this document by the Criminal Court in its judgment – Ex. P.4 will certainly have relevance in the present case.  The observations made by the Criminal Court in its judgment – Ex.P.4 regarding the execution of the document – Ex.P.1 lends credence to the evidence of PWs 1,2 & 5.  There could

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be no serious dispute that the plaintiffs were the original owners of the suit properties and that the same were lost in a  series  of  litigation  and ultimately  the  said  properties which were once lost to the plaintiffs were sought to be reconveyed to the plaintiffs by virtue of this agreement – Ex.P.1, executed in their favour by defendant No.1.  Under the circumstances,  there is  no reason to  disbelieve  the execution of the document – Ex.P.1 in favour of plaintiffs. No doubt it was executed on a quarter sheet of paper and not on a proper stamp paper and that further the contents of the document – Ex.P.1 have been written in small letters. But then it cannot be said, that is not a document.  It has to point out that the document is defined under the Indian Evidence  Act  and  it  means,  “any  matter  expressed  or described upon any substance by means of letters, figures or marks or by more than one of those means intended to be used or which may be used for the purpose of recording that matter”.  A writing is a document, whether writing is made on a quarter sheet or paper or a full sheet, it is a document within the meaning of the Evidence Act and that merely because the writing is on a quarter sheet of paper, it does not cease to be a document.  The only requirement is that the party relying upon a document must prove the same in accordance with law.  The mode of proving the contents of a document has been dealt with, in Sections 61 to  66  of  the  Indian  Evidence  Act.   The  contents  of  a document  may  be  proved  either  by  the  primary  or secondary  evidence.   Primary  evidence  means,  the document itself produced for the inspection of the Court.  In the  instant  case,  it  is  not  in  dispute  that  the  original agreement itself  was produced for  the inspection of  the Court as per Ex. P.1.  The document in question being an agreement of sale or a reconveyance agreement, it does not require attestation.  Section 67 of the Evidence Act refers to document  other  the  document  required  by  Law  to  be attested.  It shows that the signature of the person alleged to have signed a document i.e. execution must be proved by the evidence with the signature purporting to be that of the executants is in his handwriting and the other matter in the document i.e.  its body must also be proved by proof of handwriting of  a person purporting to have written the document.  In the instant case, the agreement – Ex.P.1 was stated to have been written by its scribe – PW.1 at the

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instructions of defendant No.1 and after the document was written, it was signed by defendant No.1.  Therefore, what was  required  to  be  proved  in  the  instant  case  by  the plaintiffs to prove the execution of document – Ex.P.1 was that it contains the signature of defendant No.1.”    

14. On the issue of execution of the agreement, the Court

came to the conclusion that there are consistent evidence of

all the three witnesses that the agreement was executed by

the 1st defendant.  Accordingly, the appeal was allowed and

the judgment of trial court was set aside.

15. Hence,  this  appeal  by  special  leave  by  the  legal

representatives of defendant no.1.

16. Mr.  K.  Ramamurthy,  learned senior  counsel  appearing

for the appellant, assailed the impugned judgment passed by

the  High  Court  as  being  erroneous  in  law  and

suffers  from  serious  mis-appreciation  of  evidence.  Learned

Counsel, firstly, submitted that issue nos. 6(a) to 6(c) framed

by the Trial Court relates to validity and effect of the orders

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passed in execution proceeding and miscellaneous proceeding.

The  Trial  Court  recorded  the  finding  that  in  execution  of

decree  in  execution  case  no.  216  of  1961  the

defendant-appellant  was  put  in  possession  and  objection

raised by the                         plaintiff-respondent herein were

rejected.   These findings of  issue nos.  6(a)  to  6(c)  were not

challenged  in  appeal  before  the  High  Court  by  the

respondents.   Further,  the High Court held that findings of

issue nos. 6(a) to 6(c) need no interference.  Having held so,

the  High  Court  ought  not  to  have  allowed  the  appeal  and

decreed the suit.  Mr. Ramamurthy, learned senior counsel,

submitted that although, the defendant-appellant denied and

disputed the existence of agreement, but the High Court, on

the  basis  of  evidence  recorded  in  a  criminal  proceeding

decided  the  suit  for  specific  performance.   Learned  senior

counsel,  therefore,  submitted that,  in the alleged agreement

dated  02.09.1967,  there  is  a  reference  of  earlier  agreement

dated  29.11.1965,  but  the  same  was  neither  produced  nor

proved in the case which itself is sufficient to disentitle the

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plaintiff from seeking a decree for the specific performance.  It

was  contended  that  although,  the  alleged  agreement  in

question  was executed  in  a  quarter  sheet  of  paper  without

affixing any stamp, but the High Court has erroneously relied

upon the said agreement on the basis of the evidence given in

the criminal case.  Learned senior counsel further submitted

that  the  High  Court  has  committed  grave  error  of  law  in

applying  the  provisions  of  Section  13  of  the  Evidence  Act.

Learned  senior  counsel  relied  upon  catena  of  decisions

including decisions rendered by this Court in Anil Behari vs.

Latika  Bala  Dassi  &  Others., AIR  1955  SC  566;  Adi

Pherozshah  vs.  H.M.  Seervai,  AIR  1971  SC  385;  Shanti

Kumar Panda vs. Shakuntala Devi, (2004) 1 SCC 438; and

State of Bihar vs. Radha Krishna Singh & Others (1983) 3

SCC 118.

17.   Mr.  Basava  Prabhu  S.  Patil,  learned  senior  counsel

appearing for the respondents, on the other hand, submitted

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that the only issue that was to be decided by the High Court

was as to whether there was a binding agreement executed by

the defendants-appellants.  Learned senior counsel submitted

that the High Court after considering the evidence of the scribe

and  other  witnesses  and  also  considering  the  evidence

produced in a criminal proceeding and the finding recorded in

the said proceeding has come to the right conclusion that the

agreement was executed by the defendants.  The High Court

further  came  to  the  finding  that  payment  of  consideration

amount  to  the  defendants  has  been  proved  and  that  the

signature on the agreement was admitted by Nanjappa, who

was a signatory of the agreement.  According to the learned

senior  counsel,  the  finding  recorded  by  the  High  Court  is

based on appreciation of evidence and, therefore, such finding

of fact needs no interference by this Court.  

18. Before we express our view on the findings recorded by

both the trial court and the High Court while passing a decree

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for  specific  performance,  we  would  like  to  discuss  first  the

settled proposition of law in this regard.

19. There  is  no  dispute  that  even  a  decree  for  specific

performance can be granted on the basis of oral contract.  Lord Du

Parcq in a case (AIR 1946 Privy Council) observed, while deciding a

suit for specific performance, that an oral contract is valid, binding

and enforceable. A decree for specific performance could be passed

on the basis of oral agreement.  This view of a Privy Council was

followed by this Court in the case of Koillipara Sriramulu vs. T.

Aswatha Narayana, AIR 1968 SC 1028, and held that an oral

agreement with a reference to a future formal contract will not

prevent a binding bargain between the parties.

20. However, in a case where the plaintiff come forward to seek a

decree for specific performance of contract of sale of immoveable

property on the basis of an oral agreement or a written contract,

heavy burden lies on the plaintiff to prove that there was consensus

ad idem between the parties for the concluded agreement for sale of

immoveable  property.   Whether  there  was  such  a  concluded

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contract or not would be a question of fact to be determined in the

facts  and circumstances  of  each individual  case.  It  has  to  be

established by the plaintiffs that vital and fundamental terms for

sale of immoveable property were concluded between the parties.

21. In a suit for specific performance of a contract, the Court has

to keep in mind Section 20 of the Specific Reliefs Act.  This Section

preserves  judicial  discretion  to  grant  decree  for  Specific

performance.  However, the Court is not bound to grant specific

performance merely because it is lawful to do so.  The Court should

meticulously consider all facts and circumstances of the case and

to see that it is not used as an instrument of oppression to have an

unfair advantage not only to the plaintiff but also to the defendant.  

22. In the case of  Surya Narain Upadhyaya vs. Ram Roop

Pandey and others,  1995 Supp (4) SCC 542, this Court while

considering Section 20 of the Specific Relief Act held as under:-

“4. Though the  decree  for  specific  performance  is  a discretionary  power,  yet  the  court  is  not  bound  to grant such a relief merely because it is lawful to do so;

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but  the discretion of  the court  is  not  arbitrary,  but sound and reasonable, guided by judicial principles of law and capable  of  correction by  a  court  of  appeal. Therefore, the discretion should be properly exercised keeping  in  view  the  settled  principles  of  law  as envisaged  in  Section  20  of  the  Act.  This  case demonstrates  that  the  High  Court  took  irrelevant consideration  into  account  to  refuse  to  grant  the decree  for  specific  performance.  It  also  committed manifest illegality in reversing the concurrent finding of facts recorded by the trial court as well as the first appellant court, namely the appellant has always been ready and willing to perform his part of the contract.”

23. It is equally well settled that relief of specific performance is

discretionary  but  not  arbitrary,  hence,  discretion  must  be

exercised in accordance with sound and reasonably  judicial

principles.   The  cases  providing  for  a  guide  to  courts  to

exercise discretion one way or other are only illustrative, they

are not intended to be exhaustive,  In England, the relief of

specific performance pertains to the domain of equity, but in

India the exercise of  discretion is governed by the statutory

provisions.

24. In the case of  Mayawanti vs. Kaushalya Devi, (1990) 3

SCC 1, this Court observed as under:-

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“8. In a case of specific performance it is settled law, and indeed it cannot be doubted, that the jurisdiction to order specific performance of a contract is based on the existence of a valid and enforceable contract. The Law of  Contract is based on the ideal of  freedom of contract and it provides the limiting principles within which the parties are free to make their own contracts. Where a valid and enforceable contract has not been made,  the court  will  not  make a  contract  for  them. Specific performance will not be ordered if the contract itself  suffers  from  some  defect  which  makes  the contract invalid or unenforceable. The discretion of the court  will  be  there  even  though  the  contract  is otherwise  valid  and  enforceable  and  it  can  pass  a decree of specific  performance even before there has been  any  breach  of  the  contract.  It  is,  therefore, necessary first to see whether there has been a valid and enforceable contract and then to see the nature and obligation arising out of it. The contract being the foundation  of  the  obligation  the  order  of  specific performance is to enforce that obligation.”

25. In the case of  K. Prakash vs. B.R. Sampath Kumar,

(2015) 1 SCC 597, this Court held:

“13. Indisputably, remedy for specific performance is an equitable remedy. The court while granting relief for specific performance exercises discretionary jurisdiction. Section 20 of the Act specifically provides that the court’s jurisdiction  to  grant  decree  of  specific  performance  is discretionary  but  not  arbitrary.  Discretion  must  be exercised in accordance with the sound and reasonable judicial principles.

14. The King’s Bench in Rooke’s case said: “Discretion  is  a  science,  not  to  act  arbitrarily

according to men’s  will  and private affection:  so the discretion which is exercised here, is to be governed by rules of law and equity, which are not to oppose, but each, in its turn, to be subservient to the other. This

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discretion, in some cases follows the law implicitly, in others, allays the rigour of it, but in no case does it contradict  or  overturn  the  grounds  or  principles thereof, as has been sometimes ignorantly imputed to this  Court.  That  is  a  discretionary  power,  which neither this nor any other court, not even the highest, acting  in  a  judicial  capacity  is  by  the  Constitution entrusted with.” 15. The  Court  of  Chancery  in  Attorney  General v.

Wheate followed Rooke’s case and observed: (ER p. 666) “…  the law is clear, and courts of equity ought to

follow  it  in  their  judgments  concerning  titles  to equitable  estates;  otherwise  great  uncertainty  and confusion  would  ensue.  And  though  proceedings  in equity are said to be secundum discretionem boni viri, yet, when it is asked,  vir bonus est quis? The answer is,  qui consulta patrum,  qui leges juraque servat. And as  it  is  said  in  Rooke’s  case,  that  discretion  is  a science not to act arbitrarily according to men’s wills and private affections; so the discretion which is to be executed here, is to be governed by the rules of law and equity, which are not to oppose, but each in its turn to be subservient to the other. This discretion, in some cases follows the law implicitly; in others assists it,  and  advances  the  remedy;  in  others,  again,  it relieves against the abuse, or allays the rigour of it; but  in  no  case  does  it  contradict  or  overturn  the grounds or principles thereof, as has been sometimes ignorantly  imputed  to  this  Court.  That  is  a discretionary power, which neither this, nor any other court,  not  even  the  highest,  acting  in  a  judicial capacity,  is  by  the constitution entrusted with.  This description is full and judicious, and what ought to be imprinted on the mind of every Judge.” 16. The  principle  which  can  be  enunciated  is  that

where the plaintiff brings a suit for specific performance of  contract  for  sale,  the  law  insists  upon  a  condition precedent to the grant of decree for specific performance: that the plaintiff must show his continued readiness and willingness  to  perform  his  part  of  the  contract  in accordance with its terms from the date of contract to the date of hearing. Normally, when the trial court exercises

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its discretion in one way or the other after appreciation of entire  evidence  and  materials  on  record,  the  appellate court should not interfere unless it is established that the discretion  has  been  exercised  perversely,  arbitrarily  or against  judicial  principles.  The  appellate  court  should also  not  exercise  its  discretion  against  the  grant  of specific  performance  on  extraneous  considerations  or sympathetic  considerations.  It  is  true,  as  contemplated under Section 20 of the Specific Relief Act, that a party is not  entitled  to  get  a  decree  for  specific  performance merely because it is lawful to do so. Nevertheless once an agreement to sell is legal and validly proved and further requirements  for  getting  such  a  decree  are  established then the court has to exercise its discretion in favour of granting relief for specific performance.”

26. Reference may also be made by this Court in the case of   

Zarina Siddiqui vs. A. Ramalingam, 2015 (1) SCC 705, this  

Court observed as under:-

“33. The  equitable  discretion  to  grant  or  not  to grant  a relief  for  specific  performance also depends upon  the  conduct  of  the  parties.  The  necessary ingredient  has to be proved and established by the plaintiff  so  that  discretion  would  be  exercised judiciously in favour of the plaintiff. At the same time, if the defendant does not come with clean hands and suppresses material facts and evidence and misleads the  court  then  such  discretion  should  not  be exercised by refusing to grant specific performance.”

27. In the light of the principles laid down by this Court in

the  number  of  decisions  referred  hereinabove,  we  have  to

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consider  as  to  whether  the  decision arrived at  by the  High

Court can be sustained in law.

28. In the instant case while deciding the issue as to whether

the agreement of 1967, allegedly executed by the defendants,

can  be  enforced,  the  Court  had  to  consider  various

discrepancies  and  series  of  legal  proceedings  before  the

agreement alleged to have been executed.  In the agreement

dated 2.9.1967, there is reference of earlier agreement dated

29.11.1965  where  under  Rs.  18,000/-  was  paid  to  the

defendant-appellant  which  was  denied  and  disputed.

Curiously  enough  that  agreement  dated  29.11.1965  was

neither  filed  nor  exhibited  to  substantiate  the  case  of  the

plaintiff.  The High Court put reliance on the agreement dated

2.9.1967 written in a quarter sheet of paper merely because of

the fact that said quarter sheet of paper was produced before

the Magistrate in a criminal proceeding.  In our view, the High

Court  is  not  correct  in  holding  that  there  is  no  reason  to

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disbelieve  the  execution  of  the  document  although  it  was

executed on a  quarter  sheet  of  paper  and not  on a  proper

stamp and also written in a small letter.  The High Court also

misdirected itself in law in holding that there was no need of

the  plaintiff  to  have  sought  for  the  opinion  of  an  expert

regarding the execution of the document.  

29. Indisputably, various documents including order-sheets

in the earlier proceedings including execution case were filed

to nullify the claim of the plaintiff regarding possession of the

suit property but these documents have not been considered

by the High Court. In our considered opinion the evidence and

the  finding  recorded  by  the  criminal  courts  in  a  criminal

proceeding cannot be the conclusive proof of existence of any

fact, particularly, the existence of agreement to grant a decree

for specific performance without independent finding recorded

by the Civil Court.

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30. After  examining  the  entire  facts  of  the  case  and  the

evidence produced on record,  we are of  the definite opinion

that  it  is  not  a  fit  case  where  the  discretionary  relief  for

specific  performance  is  to  be  granted  in  favour  of  the

plaintiff-respondent.   The  High  Court  in  the  impugned

judgment has failed to consider the scope of Section 20 of the

Specific Relief Act and the law laid down by this Court.

31. For  all  these  reasons,  this  appeal  is  allowed  and  the

impugned judgment passed by the High Court  is  set  aside.

Consequently,  the  judgment  of  the  learned  trial  court  is

restored.  Hence, the suit is liable to be dismissed.

……………………J. (M.Y. Eqbal)

……………………J. (C. Nagappan)

New Delhi September 02, 2015

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