Execution of agreement

Signatures of defendant on written statement, affidavit-in-evidence, which was an admitted document, viz. conveyance deed between both the defendants were similar to that on receipt of part payment signed by defendant in respect of subject sale transaction, witnessed by two persons

Suit filed by plaintiff was maintainable and sale transaction in respect of suit property was proved by plaintiff, therefore, specific performance could be granted

High Court granted specific performance to plaintiff, therefore, claim with regard to damages had become infructuous

Relief of specific performance of a contract was a discretionary one and Court could mold the relief, where the facts and circumstances had so permitted

Suit was decreed accordingly.

Agreement to sell was comprised of 03 pages and only on the last page of the document, the signature of one of the respondents was affixed

When all the part of agreement to sell was not signed, it made the agreement to sell/document doubtful and that could not be rely upon in any way; unless not proved that all 03 pert were produced with the same aim/object and those were signed by the executor

No sign of any identifier was on the agreement to sell

On each pert there was no signature of the vendee, so the execution of document could not be said to be proved

Petitioners did not file any application for comparison of the signature/thumb mark presented on the agreement to sell before the Trial Court inspite of the fact that the matter remained pending there for about six years

From the very beginning from the respondent's side, it was denial that no such agreement to sell was executed by the respondents

Petitioners were the beneficiaries of the agreement to sell and they were under obligation to prove the agreement to sell

Existence of agreement to sell, did not mean that it was validly executed and a proved document

When such document which create a right or mentioned some rights or obligations and if it was denied by the other side who was being effected by said document, that person who was beneficiary of the document had to prove the document.

In order to prove the agreement to sell the respondent examined her special attorney and one of the attesting witnesses of the agreement to sell as witnesses

In addition thereto, the respondent tendered in evidence certain documents as well

Contrary to this, the appellant examined his attorney as the sole witness to rebut the evidence led by the respondent, who in his statement conceded the execution of agreement to sell

Thus, after the admission of this material fact, the respondent successfully discharged the onus of proof with regard to the execution of agreement, as admitted facts need not to be proved

Record showed that there was no hurdle in the way of the appellant to execute the sale deed in favour of respondent in furtherance of the agreement to sell

Second appeal was dismissed, in circumstances.

Petitioner/defendant applied to the authorities to change his address, to that of respondent/plaintiff after he had entered into agreement in question

Intention behind change of address was that all future correspondence regarding suit plot should be made by authorities at the address of respondent/plaintiff

Subsequent to the agreement, installments for suit plot were also paid by respondent/plaintiff and receipts in that regard were duly exhibited

Petitioner/ defendant had filed application before authorities for transfer of suit plot in favour of nominee of respondent/ plaintiff

Execution of the agreement between parties was duly proved through production of its marginal witness, Notary Public and stamp vendor

High Court declined to interfere in concurrent findings of facts by two Courts below as there was no anomaly or contradiction in evidence produced by respondent/plaintiff nor there was any jurisdictional infirmity or misreading or non-reading of evidence by Courts below

Revision was dismissed in circumstances.

Trial court and Lower Appellate Court dismissed the suit and appeal respectively on grounds that evidence produced did not establish any claim of plaintiffs

Validity

Where plaintiffs claimed a transaction of sale, execution of an alleged agreement, payment of earnest money, entire onus was on them to prove; firstly, settlement of terms and conditions of alleged transaction; and thereafter, prove execution of alleged agreement and payment of earnest money

Person claiming the agreement was expected to know day, date and month when claimed transaction was allegedly executed or settled and agreement executed

Entire case of plaintiffs was ill-founded, alleged transaction, agreement and alleged receipts were never proved by any credible or admissible evidence

Courts below after in-depth scrutiny of evidence had concurrently found that plaintiffs had failed to prove existence or execution of alleged transaction/agreement

No specific misreading or non-reading of evidence, affecting findings could be pointed out nor any misreading or non-reading was observed

High Court declined to interfere in judgments passed by two courts below as findings recorded were based on correct analysis and appreciation of evidence which suffered no error of law

Revision was dismissed in circumstances.

If power of attorney was treated as a genuine document, which was dated 10-5-1982, even before that, the original owner had transferred suit property in favour of defendants through written sale deed dated 13-2-1982

When original owner till his last breath under the sale deed owned transfer of suit property in favour of defendants and if power of attorney was valid attorney of the original owner, even then he was not competent to enter into agreement to sell the property on behalf of his father again, which had already been transferred and admitted by the owner

Decree in suit for specific performance was a discretion with the court, if plaintiff had proved the agreement without any shadow of doubt

Evidence led by plaintiffs did not entitle them to a decree for specific performance in their favour

Refusal by Trial Court was in accordance with law and reversal of findings by Lower Appellate Court on the basis of which decree for specific performance had been granted, was not only against evidence on file but also against principles of law

Plaintiffs were not entitled to decree for specific performance, therefore, High Court reversed findings recorded by Lower Appellate Court granting decree for specific performance, as suit property was not available for transfer at the time of agreement to sell by the attorney

High Court set aside judgment and decree passed by Lower Appellate Court and restored that of Trial Court

Second appeal allowed in circumstances.

Plaintiff claimed that defendant who was owner of suit property entered into agreement to sell and had received part payment against receipt, through his brother, in whose favour he had executed irrevocable general power of attorney

Plaintiff did not implead the attorney as defendant while the owner of property declined to have executed any agreement to sell as well as receipt of part payment

Validity

Both parties i.e. plaintiff and general attorney of defendant, were to contemplate sale agreement, after issuance of receipt dated 19-4-2004, which had not been admittedly executed between the parties

Relief in suit for specific performance was discretionary relief and could only be granted to party which had approached court with clean hands and had placed material on record to show bona fides on his part to perform contract

Plaintiff failed to establish that irrevocable general power of attorney was executed by defendant in favour of his brother, so also the defendant denied issuance of any receipt in favour of plaintiff

Suit was dismissed in circumstances.