Gian Singh and Others vs Smt. Devinderjit Kaur

S.P. Goyal, J.—The respondent filed this suit for possession of the land measuring 24 kanals 14 marlas by way of specific performance of the contract dated October 22, 1974, whereby the appellant agreed to sell the said land for a consideration of Rs. 30,260/ -.

The plaintiff pledged that Rs. 5,000/ - were paid at the time of the execution of the said agreement and the remaining amount of Rs. 25,260/ - was to be paid at the time of the registration of the sale; that she was always willing and ready and still ready to perform her part of the contract; and that the appellants have failed to perform their part of the contract inspirit of several notices served upon them. The appellants denied the execution of the agreement and the receipt of the earnest money. In the alternative they pleaded that if any agreement is proved to have been executed by them, it was without consideration and got executed by practicing a fraud by the plaintiff and her husband. No particulars of the fraud, however, were incorporated in the written statement and probably for that reason, even no issue was framed in this regard.

On the pleadings of the parties, the trial court framed the following issues:

(1) Whether the defendants entered into valid agreement with the plaintiff on October 22, 1974 and a sum of Rs. 5,000/ -? If so to what effect?

(2) Whether the plaintiff has been ready and willing to perform her part of the agreement?

(3) Whether the defendant did not perform their part of the agreement? If so to what effect?

(4) Whether the plaintiff is entitled to the decree for specific performance?

All the issues were answered in favour of the plaintiff and the suit decreed. Aggrieved thereby, the defendants have come up in this appeal.

Three contentions were raised by the Learned Counsel for the appellants to assail the impugned judgment. Firstly, it was urged that there was no proof that the plaintiff was ready and willing to perform her part of the contract. Elaborating his argument, the Learned Counsel contended that the documents, marked ''A'' and ''C, having not been proved according to law, were inadmissible in evidence and so were the four registered notices, Exhibits P4 to P7.The documents, marked ''A'' and ''C, are the two applications which were submitted to the Sub Registrar by the respondent and bear the endorsement by the former. The endorsement of the Sub Registrar would be admissible without examining him. However, even if these two documents are ruled out the four registered notices, which had been duly exhibited in evidence, were sufficient to record a finding that the respondent has been ready and willing to perform her part of the contract and it were the appellants who neglected to complete the sale. The argument that the endorsement of refusal on these notices would not be admissible without examining the Postman is untenable because the endorsement having been made by a public servant in the discharge of his duties is admissible per se without any further proof. No fault, therefore, can be found with the finding of the trial court on this matter and the same is hereby confirmed.

It was next contended that the agreement was a unilateral document inasmuch as it bore the signatures of the appellants alone and, therefore, was not enforceable. Reliance for this proposition was placed on Provat Kumar Mitter Vs. Commissioner of Income Tax, , Irani Basettappa v. Municipal Council Davangere City Municipality AIR 1955 Mys 76, and Saroj Bandhu Bhaduri Vs. Jnanada Sundari Debya and Another, . The first two decisions relate to gift deeds and it is well established that the gift is not complete till it is accepted by the donee. So, the documents were paid to be incomplete and ineffective. Obviously these cases have absolutely no bearing on the present case. So far as the third case is concerned, it has absolutely no bearing on the present case as it never involved the question of validity of any agreement purporting to have been signed only by one party. That apart, as held by the trial court, there was a complete agreement between the parties and Exhibit P1 only a repository of its terms. This document, therefore, could be relied upon by way of admission of the appellants to prove the agreement between the parties. The second contention as well is, therefore, devoid of any merit.

7, Lastly, it was contended that the agreement had been secured by playing fraud upon appellants by the respondent and her husband. There is not a word in the statement of DW2, who only appeared on behalf of the defendants, that any fraud was committed. Otherwise also, as noticed above, no particulars of the fraud were given in the written statement, nor any issue framed in this regard. The contention raised is, thus, wholly frivolous.

No other point having been urged this appeal must fail and is hereby dismissed with costs.