Someshwar vs Narayan Govind Hegde and Others

This appeal is by the second defendant against the judgment and decree dated 27.3.1978 passed in Original Suit No.8 of 1977 on the file of the Civil Judge, Sirsi.

In the course of the judgment, we will refer to the parties by the ranks assigned to them in the trial Court.

The brief facts which are necessary to be stated and which are not n dispute are as follows: -

"Plaintiffs Narayan Govind Hegde and Ganapati Govind Hegde had certain property disputes with their step-mother Bagirathi, the first defendant in the suit. Plaintiffs filed Original Suit No.5 of 1968 on the file of the Civil Judge at Karwar seeking certain declaration that the suit schedule properties therein were exclusively their and defendant Bagirathi therein had not right whatsoever/fiter alia on the ground that she was an unchaste woman and not even the wife of their ground that she was also no appeal at the same time pending in the Court of District Judge, Karwar against the judgment and decree passed in Original Suit No. 1 of 1965 on the file of the Court of the Munsif, Sirsi. The latter suit had been filed by an uncle of the plaintiffs one Shivarama Hegde and defendant No. 1 was also one of the defendants therein. That suit had gone adversely to the interests of the plaintiffs and the first defendant and in that circumstance, it was pending in appeal before the District Judge, Karwar. IN order to reach an amicable settlement between the parties, the plaintiffs alleged, they agreed for a compromise negotiated by persons known to them and defendant-1 and ultimately, the terms of the compromise were reduced to writing on 15.11.1971 in the shop of one R.H. Hegde at Sirsi Town. Soon after that agreement was executed by defendant No. 1, she admittedly sold some of the properties contracted to be sold to the plaintiffs as per the agreement of 15.11.1971 to defendants-2 by an instrument of sale deed dated 26.11.1971 and duly registered on the same day. Plaintiffs further averred that 1st plaintiff met defendant No. 1 on or about 28th November, 1971 and requested her to convey the properties under the suit agreement dated 15.11.1971 as they were ready with the money. But defendant No. 1 put off execution of the instrument of sale on the plea that she was required to perform obsequies and soon thereafter she would execute the sale deed. Suspicious of that reply, plaintiffs caused a notice to be issued on 30.11.1971 calling upon defendant No. 1 to execute the sale deed accepting the balance of consideration pursuant to the agreement dated 15.11.1971 which stipulated the time of one month for the completion of the sale. A reply thereto was received by the plaintiffs issued through Counsel for the first defendant in the suit, (Ex. P.71) dated 9.12.1971 by which she denied knowledge of execution of any agreement or receipt of the advance of Rs. 1,000/- or any obligation on her part to execute any sale deed in respect of the alleged properties said to have been agreed to be sold under the said agreement. Thereafter the plaintiffs prosecuted their litigation which were pending in the Court of the Munsif and in the Court of the civil Judge. In fact, the matter pending in the Court of the Munsiff had been disposed of even prior to the agreement dated 15.11.1971. In that suit, defendant-I had been declared to be an heir to the estate of her husband and that she had 1/9th share. The appeal prosecuted by the plaintiffs was dismissed and the Second Appeal presented to this Court was also dismissed. It was thereafter they filed the suit, seeking specific performance of the agreement dated 15.11.1971."

Defendant No. 1 resisted the suit by filing a written statement inter alia contending that she is the widow of one Govind Hegde and that the plaintiffs are the sons of the said Govind Hegde by the first wife since deceased. She specifically averred that she had sold her entire interest in the suit properties. Otherwise she admitted certain allegations made in para 3 of the plaint. Similarly contentions of para 4 of the plaint were also admitted. She denied the contents of para 5 which related to the amicable settlement reached between the parties resulting in the suit agreement of 15.11.1971. She alleged that the said agreement was concocted and denied the execution in toto. She further averred that there were no reasons for her to enter into any sort of agreement with the plaintiffs. The relationship between plaintiffs and defendant was estranged to the extent of being beyond repair. After the death of her husband Govind Hegde, the plaintiffs had driven her out from the house and virtually throw her out on the street. The plaintiffs did not even provides for bare maintenance; that the defendant had to struggle hard to eke-out her livelihood by serving as cook at the mercy of others. Then she made reference to the litigations that existed between the parties and stated categorically that the plaintiffs had caught hold of defendants'' son-in-law and managed to get a sort of document and therefore, the said document was not binding on the defendant as the same was got by the plaintiffs by employing fraudulent means. She totally denied the execution of the agreement in favour of the plaintiffs. She further averred that the plaintiffs had collected their own henchmen and by ill-got means caught hold of defendants'' son-in-law and managed to get a sort of document and therefore, the said document was not binding on the defendant as the same was got by the plaintiffs by employing fraudulent means. She totally denied the execution of the agreement in favour of the plaintiffs. She further averred that the plaintiffs had collected their own henchmen and by ill-got means caught hold of defendant''s son-in-law and whenever any notice from the Court and other allied matters came, she used to ask her son-in-law to deal with them. The defendant further alleged the she is anilliterate women she did not know reading and writing. Defendant''s son-in-law used to take her thumb impression under the guise that the same was required for prosecuting the litigation, and therefore, she apprehended that at the instance of plaintiffs, her son-in-law might have taken her thumb impression on the so-called agreement. The defendant did not admit her thumb impression on the so-called agreement dated 15.11.1971. Even if it was proved that it was her thumb impression, she averred, the same must have been manipulated through her stin-in-law. She admitted having executed sale in favour of defendant-2 for a consideration of Rs.33,000/-. She asserted that she had a right the alienate despite the agreement of 15.11.1971. In other respects, she denied the averments in the plaint and prayed for dismissal of the suit.

Defendant-2, the present appellant, also filed a separate written statement. In para-2 of the said statement, he adopted paras 1 to 4 and major portion of para 5 petting to defendant-1 as his own statement. He also admitted that he had paid Rs.33,000/-to defendant No. 1 as consideration for the properties sold to him by the first defendant. He denied that he was aware of any agreement dated 15.11.1971 namely the suit document He asserted in his written statement that defendant No. 1 had got every right to alienate the property and that he was bonafide purchaser for value without notice of any rights in favour of the plaintiffs. He prayed that the suit be dismissed with costs.

On such pleadings, issues were framed as follows: -

Whether plaintiffs prove that defendant No. 1 has executed an agreement on 15.11.1971 to sell her right, title and interest of suit lands for consideration of Rs.20,000/- and received Rs.1,000/- part amount on 15.11.1971 and to execute sale deed before 15.12.1971 ?

Does defendant No. 1 further agreed to forfeit her right to prosecute her Civil Appeal No.23/69 pending hearing in the Court of Civil Judge, Karwar and to forfeit her right to obtain the benefit given to her in the decree passed in O.S.No.5/68 in the Court of the Civil Judge, Karwar in respect of suit properties ?

Whether plaintiffs prove that defendant No. 1 contrary to terms of the agreement in collusion and connivance with defendants of O.S.No.5 of 1968 viz., late Shivaram Hegde and his sons Sitaram and Pandurang, and to defeat the rights of plaintiffs, executed a sale deed in favour of defendant No.2 on 26.11.1971 without any consideration as stated in the plaint ? And the same is-valid ?

Does defendant No. 1 prove that the agreement alleged, is occasioned by fraud and misrepresentation ?

Does defendant No.2 prove that he is bonafide purchaser without notice, as alleged in his W.S.?

Are plaintiffs entitled for declaration as prayed for? OR

Whether plaintiffs are entitled for specific performance of the contract agreement dated 15.11.1971 as prayed for?

Plaintiffs adduced oral evidence of plaintiff No. 1 P. W.,2 Narasimha Hegde, PW.3 Ramakrishna Hegde, PW.4 Satyanarayan Hegde and PW.5 Parameshwar Hegde. They produced 78 documents including the suit agreement. On the side of the defendants, first defendant did not produce any document nor did she enter the witness box. Defendants got himself examined as D.W.1, and no document was marked for Defendant-2. It is needless for us to state that the suit came to be decreed as prayed for directing specific performance of the contract by defendants 1 and 2.

In mis Court, Mr. T.S. Ramachandra appearing for appellant has strongly contended that the Court-below erred in relying upon the evidence of PW.4 in order to reach the conclusion that second defendant had knowledge of the suit agreement Ex. P.78. He specifically drew our attention to a passage in the deposition of PW.4 elicited in the examination-in-chief which is an follows:

"On 19.11.19711 had met Sankeri Venkataraman Ganapati Bhat in the Boarding House of Koppal Hegde, who asked me about compromise between plaintiffs and defendant No. 11 told him what happened on 15.11.1971.1 told him that the written document may be seen from Narayan Plaintiff No. 1.1 showed the said document to him. The signature now shown to me at Ex. P.71A is that of G.V. Bhat i.e. Ganapati Venkataraman Bhat of Sankeri."

The thrust of the argument founded on the above statement of PW.4 was that he was stranger to the agreement could not have possessed the agreement which he claimed to have shown to one of the attesting witnesses, namely, Sankeri Venkataraman Ganapati Bhat who subsequently attested the sale deed executed by defendant No''. 1 on 26.11.1971 in favour of defendant-2.

Mr. Ramachahdra, learned Counsel contended that it was too much to draw an inference that the said attesting witness would have told the second defendant about the agreement which he had signed in respect of the properties of the sale deed and other properties earlier on 15.11.1971. In normal circumstances perhaps it is so. The person who pleads in defence that he is bonafide purchaser for value wanting in notice of earlier liability of the properties purchased by him should discharge that burden cast on him by independent evidence and cannot be permitted to depend upon the weakness if any in the case of the plaintiffs. Besides the self serving testimony of the second defendant, there is no other independent evidence by which he has established to the satisfaction of the Court-below or even to his Court that he was a bonafide purchaser wanting in notice. We should not fail to read the evidence produced on behalf of the plaintiff in regard to material details and consider the oral evidence of each of the witnesses and find out to what extent there has been corroboration of the entire oral evidence adduced on behalf of the plaintiffs. If we are able to see such corroboration, then we should not take an isolated statement out of context and draw an inference that it was unlikely that PW.4 could have possession of the document which he claimed to have shown to the other. We are dealing with parties to the suit who are all residents of the same village or residents of villages which are closely situated to each other and therefore in such places knowledge of events that took place on 15.11.1971 could not be held to have been kept a closely guarded secret. Thus, having regard to normal course of human behaviour and conduct, we do not see any thing strange in PW.4''s evidence.

We also must not overlook the fact that DW.2 adopted in substance the defence adopted by the first defendant. The only independent plea that was made that the bonafide purchaser which we have already noticed. He did not establish by any independent evidence that assertion. The burden having been thrown on his as per issue No.5.

It was next argued by Mr. T.S. Ramachandra that the suit agreement was not an agreement in the eye of law, as the plaintiff had not signed the suit agreement. It was executed or said to have been executed only by the first defendant unilaterally. We have care fully ready the recitals in Ex. P.78. It is in Kannada. It clearly recites that the first defendant thereby undertakes to sell the property descried in the schedule to the document for a consideration of Rs.20,000/- having received Rs. 1,000/- as advance sale consideration and within One month from the date of execution of the agreement would convey the property by a formal deed of sale duly registered in the office of Sub-Registrar having jurisdiction. If further recites the obligation that she would not have the right to contest the litigation pending in the Courts at that point of time, if she failed, to convey the properties under the agreement. All those recitals clearly establish that she had undertaken to convey the properties for an agreed consideration and therefore there was acceptance of certain proposal within the meaning of those expressions u/s 2 of the contract Act and therefore, a contract had been concluded. Having regard to such recitals in the document, it cannot be said that the absence of signature of the plaintiffs would render the agreement unenforceable. There are a number of documents in which undertaking is unilateral but nevertheless obligations are bilateral. The suit document Ex. P.78 clearly recites that the executant is going to convey the property to specifically named persons in the contract for consideration agreed within a stipulated time. The other parties the agreement are mentioned in the document and the fact that other parties have paid a sum of Rs. 1,000/- advance recited clearly established the proposal by the other party in acceptance of which the document came to be executed.

Mr. T.S. Ramachandra relied upon a passage occurring in regard to what constitutes unilateral contract and bilateral contract, where certain documents like promissory notes were enumerated as examples of unilateral contract which alone could be enforced with the signature of the executant only. But we have already pointed out that where there has been acceptance of a proposal in the manner set out in the agreement, a contract has been concluded notwithstanding the fact that only once of the parties has signed the document. In fact we would to a step further and say if an oral agreement where neither party has reduced anything into writing much less signed, it, may be enforced as a contract, then we do not see how the suit document signed by the first defendant is unenforceable in law. We should have no hesitation o reject the argument.

The same question fell for consideration before the Calcutta High Court in the case of Bouwang Raja Challaphroo Chowdhury v. Banga Behary Sen, AIR 1916 Cal 771, wherein it was observed:

"A contract in writing in India does not necessarily imply that the document must be signed by both the parties thereto. Therefore, a bond executed by a party and delivered to the other party and accepted by him completes the agreement between the parties and in law this amounts to a contract in writing."

In this case obviously the suit document was produced by the plaintiffs evidence their possession of it. Therefore, it evidenced that after execution the document was handed over to the plaintiffs.

It was next contended by Mr. Ramachandra, having regard to the recitals in the suit agreement as to the penal consequence that would follow in the event of the first defendant not performing her obligation under the contract, the trial Court should have proceeded in accordance with Section 74of the contract Act to ascertain the damages and could not have decreed the suit for specific performance. We do not think that proposition really has any force and having regard to the fact that she agreed to forfeit her right to contest the cases pending in the Courts which at that pint of time was only the appeal pending in the District Court where she was one of the appellants. In any event, that appeal came to be dismissed as well as the second appeal thereafter in this Court and on the date of the suit agreement there was nothing which she could forfeit under the suit agreement. In that view of the matter, there was no need for the trial Court to examine the penal provisions as contended by Sri T.S. Ramachandra. We, therefore, do not think that any of the decision cited by him has any relevance to the facts of this case and therefore, we do not propose to notice those decisions.

It was next urged by Mr. Ramachandra that the execution of the suit document has not been proved inasmuch as the thumb impression was denied in the written statement by the first defendant. This is an argument which really is not available to the appellant-second defendant. In this context we must make a reference to what the learned Counsel for appellant suggested. It appears that some time at an advanced stage of the progress in the original suit before the trial Court, the first defendant apparently had been won over by the plaintiffs and their henchmen because the first defendant changed her lawyer and filed an affidavit soon thereafter retracting an earlier affidavit filed. This was a point which'' was neither urged nor argued before the trial Court and we should therefore really ignore the suggestion. If defendant-2 had any reason to suspect that the first defendant had been won over and she had turned hostile to his case, he should have taken appropriate steps to amend his written statement and asked for her transposition of as one of the plaintiffs. Atleast- in the absence of her examining herself as a witness in support of her assertions, he should have called her as his witness. Not having done that, it is not open now to canvass in this appeal as an argument that she had indeed conspired with the plaintiffs to defraud the defendant. Apart from this, one cannot fail to notice the inconsistency in the stand taken by the first defendant. When she was issued with the notice by the plaintiffs on or about 7th or 8th December, 1971, she caused a reply to be issued thereto as at Ex. P.71 in which she took stand of total denial of any knowledge of any agreement for sale or any amount of advance having been received wherein she accused the plaintiffs of having obtained some document in collusion with some one unknown to her. Later on when she filed her written statement she asserted that the plaintiffs had caught hold of her son-in-law and through his help and assistance got the suit agreement for sale executed, she having been in the habit of signing or giving her thumb impression whenever her son-in-law asked in regard to matters pending in Court. In other words, in respect of her denial or her stand vis-a-vis the suit document, she never entered the witness box to deny the execution of the said agreement, though the burden was cast on her as per issue No.4 that the suit document had been obtained by fraud and misrepresentation. "In the absence of such proof by defendant-1 or by defendant-2 who adopted statement of defendant-1, it cannot now be contended that the suit document is not proved. The evidence of the attesting witnesses who have spoken to the affixure of the thumb impression by the first defendant, who have strongly maintained that assertion even after being subjected to severe cross-examination must be held to be sufficient evidence of proof of the execution of the suit document. We should not loose site of the fact that the son-in-law, said to be the one responsible for the fraud Was never examined as a witness for the defendants.

It was next contended by the learned Counsel that the plaintiffs were not ready and willing to perform their part of the contract and as such the suit was liable to be dismissed. We do not find any substance in this argument because sot only that fact had been pleaded in the plaint but P.W.-1 plaintiff No. 1 asserted that he was at all time ready and wiling to perform his part of the contract while he gave oral evidence. In fact it is in his evidence, that on or about 28th November, 1971 when he met the lady-first defendant, he asked her to convey the property and became suspicious when she gave some excuse to put off the sale. It was thereafter that the notices were exchanged and the suit came to be filed. Therefore, the question of unwillingness on the pat of the plaintiffs to perform their part of the contract does not at all arise. We, therefore, reject that contention also.

For all the above reasons, there is no merit in this appeal and it is dismissed with costs.