JUDGMENT
L. Mohapatra, J.
1. Defendant No. 1 is the appellant is Second Appeal No. 158 of 1994 and defendant No. 2 is the appellant in Second Appeal
No. 159 of 1994. Both the appeals have been filed against a reversing judgment.
2. The plaintiff filed the suit for specific performance of contract on the allegation that on 6.5.1978 he sold the suit land measuring an area of Ac. 03.59 decimals to defendant Nos. 1 and 2 for consideration of Rs. 3,500/- under a registered safe deed. On the same day, the defendant No. 1 executed another deed of agreement in favour of the plaintiff contending therein that he would return the properties purchased under the sale deed within five years, if the plaintiff expressed his willingness to purchase the same on payment of due consideration within the said period. It is further alleged in the plaint that the defendant No. 1 executed the agreement as Karta of the family. Two months prior to expiry of five years from the date of execution of the sale deed, the plaintiff alleges that he offered defendant No. 1 the consideration money and requested him to execute a sale deed in respect of the suit land in his favour. Since the defendant No. 1 did not agree to such request, the plaintiff sent a notice through Advocate but the same was refused to be received. The further allegation of the plaintiff is that he is ready and willing to perform his part of the agreement dated 6.5.1978 and prayed for a direction to the defendants 1 and 2 to perform their part of contract by executing the sale deed on acceptance of consideration money.
3. The defendant No. 1 filed the written statement stating that he and defendant No. 2 are brothers and were living separately. He admitted that both the brothers purchased the suit land from the plaintiff but alleges that since they were living separately, the suit property was also divided half and half and both the brothers remained in possession of their respective shares. The defendant No. 1 also denied the allegation that he is the Karta of the family and specifically pleaded that there has already been a partition between the brothers. Other plaint allegations were also denied by the defendant No. 1. Defendant No. 2 filed a written statement stating that he is not party to the agreement on the basis of which specific performance of contract is claimed and, therefore, the suit is liable to be dismissed against him. The said defendant also denied the allegation of the plaintiff that defendant No. 1 is Karta of the family and specifically pleaded that both the brothers are separated. On the pleadings of the parties, the learned Subordinate Judge, Bhadrak framed six issues and dismissed the suit on the following findings :
(I) The agreement, Ext. 1 dated 6.5.78 is not genuine as it is not signed by defendant No. 2 even though
he was present and whereas Ext. A, the sale deed under which the defendants 1 and 2 purchased the suit land contains the signatures of both the defendants.
(ii) The agreement, Ext. 1 was not signed by defendant No. 1 as Karta of the family.
(iii) The plaintiff failed to prove his ready and willingness to perform his part of the contract.
4. After disposal of the suit, the plaintiff carried in appeal before the learned Addl. District Judge, Bhadrak and the appeal was allowed on the following findings :
(i) Ext. A being a certified copy of the sale deed dated 6.5.78 is inadmissible in evidence as the defendant did not prove the foundation for acceptance of secondary evidence.
(ii) Defendant No. 1 had executed the deed of agreement as Karta of the family as defendant No. 2 was not present at the time of execution of the agreement as well as the sale deed, Ext. A.
(iii) Plaintiff was ready and willing to perform his part of contract and had filed the suit immediately after expiry of term of contract.
(iv) Ext. 1 is genuine document and both the defendants are bound by it.
(v) The sale deed Ext. A being inadmissible, no reliance can be placed on the said document to come to a conclusion that defendant No. 2 was present at the time of execution of the agreement.
5. The appeal having been allowed, both the defendants have challenged the judgment and decree of the lower appellate Court in separate appeals which are taken up together for hearing.
6. At the time of admission, this Court formulated the following substantial questions of law as enumerated in ground No. 10(a), (c) and (f) of the memorandum of appeals and the same are quoted below ;
“(a) Whether a decree for specific performance of contract for sale can be passed in the absence of proof of continuous readiness and willingness from the date of the contract till the date of hearing.
(c) Whether a decree for specific performance of contract can be passed against the defendant who is not
a party to the contract more so when the contract was not made for his benefit or for pressing family necessity.
(f) Whether in the absence of any averment either in the document (Ext. 1) or pleadings or in evidence the defendant No. 1 executed the document (Ext. 1) as Karta of the family of the defendants, a presumption can be drawn that the defendant No. 1 executed the agreement as Karta of the joint family and the defendant No. 2 is bound by the same.”
7. Referring to the substantial questions law on which the appeals have been admitted Shri Mukherjee, the learned Sr. Counsel appearing for the appellants in both the appeals submitted that admittedly both the defendants had purchased the suit land from the plaintiff under a registered sale deed dated 6.5.78. Shri Mukherjee further submitted that both the defendants purchased the suit properties not as co-sharers but as co-owners since by the time of purchase they have already separated and could not have purchased as co-sharers. He further submitted that even if Ext. 1, the agreement on which the reliance was placed by the plaintiff is accepted as genuine document, the same having been executed by the defendant No. 1 alone who was living separately, cannot be binding on the defendant No. 2 and, therefore, the decree of the lower appellate Court so far as defendant No. 2 is concerned is not sustainable, He further submitted that no notice was served on the defendants alleged to have been sent by the plaintiff through his advocate requesting the defendants to perform their part of the duties and in absence of any evidence on record to show that the plaintiff was ready and willing to perform his part of contract, the suit could not have been decreed by the lower appellate Court.
8. Miss. Mohapatra, the learned counsel appearing for the respondents in both the appeals strenuously urged that Ext. A being a certified copy of the sale deed, could not have been admitted into evidence without any proof to the effect that the original thereof had either been destroyed or lost. According to her, the lower appellate Court was justified in not accepting the document on the ground that the Court cannot look into the document to find out whether defendant No. 2 had signed the same or not. She further submitted that a petition was filed to call for the original from the possession of the defendants but the same was withheld from the Court and the certified copy of the same was produced. She further submitted that the defendants having failed to produce the original sale deed, the lower appellate Court was justified in
ignoring the certified copy and came to a conclusion that defendant No. 2 had not signed the sale deed. She further submitted that ingredients of an English Mortgage are available in the document and if the document accepted to be an English Mortgage, the right of the mortgager is to the extent of reconveyance. The plaintiff having offered the same amount for repurchasing the land in dispute, there cannot be any doubt that he was willing to perform his part of contract and such a right of the plaintiff having been accepted by the lower appellate Court, this Court in exercise of the jurisdiction under Section 100, CPC should not interfered with the findings of the lower appellate Court.
9. On consideration of submissions of the learned counsel for the parties, the following points arise for consideration ;
(i) Whether there was a partition between the defendants 1 and 2 prior to purchase of the land under Ext. A on 6.5.78.
(ii) Whether the defendants 1 and 2 purchased the land as co-owners or co-sharers.
(iii) If Ext. 1 is found to be genuine document, whether it also binds on defendant No. 2 who admittedly not signed the said document.
(iv) Whether the plaintiff was ready and willing to perform his part of contract so as to bring in a suit for specific performance of contract.
10. So far as the first and second points are concerned, the learned Subordinate Judge found that defendant No. 1 had not signed Ext. 1 as Karta of the family. The learned Subordinate Judge though found the evidence led on behalf of the plaintiff to be poor with regard to jointness of defendants 1 and 2 has not given any finding as to whether defendants 1 and 2 were in fact living separately or not. On the other hand, the lower appellate Court on consideration of evidence on record in paragraph-13 of his judgment did not accept the plea of separation advanced by defendants 1 and 2. While coming to such a conclusion, the lower appellate Court considered the oral evidence adduced on behalf of the parties as well as the documentary evidence such as record of rights, Exts. 4 and 5 respectively. The lower appellate court having come to such a conclusion on consideration of evidence and the said finding being a finding of fact, this Court in my view should not disturb the same unless it is found to be perverse. The evidence referred to by the lower appellate Court was placed at the time of hearing and I do not find such finding to be perverse.
Therefore, I agree with the lower appellate Court that the defendants 1 and 2 have failed to prove that they were living separately at the time of execution of the sale deed vide Ext. A. Since separation has not been proved by the defendants 1 and 2 the plea advanced by Shri Mukherjee that the suit property was purchased by both the defendants as co-owners and not as co-sharers cannot be accepted. Therefore, on consideration of evidence with regard to separation, the only conclusion that can be arrived at is that both the brothers purchased the land as co-sharers.
11. Coming to the next question as to whether the document vide Ext. 1 is genuine or not and as to whether it is binding on the defendant No. 2 reliance may also be made on the finding arrived at by both the Courts below, the learned Subordinate Judge though found that the Ext. 1 was executed under suspicious circumstances and signature of defendant No. 2 was not taken on the same, the lower appellate Court found that on the date of execution of the agreement, the defendant No. 2 was not at all present and the document having been executed by defendant No. 1 as Karta of the family, there was no need to take the signature of the defendant No. 2 on the said document. Shri Mukherjee contended that if both the documents were executed on the same day and defendant No. 2 had signed Ext. A being present in the office of the Sub-Registrar, it can never be said that defendant No. 2 was not present at the time of execution of the agreement and on this ground alone Shri Mukherjee contended that the finding of the lower appellate Court with regard to absence of defendant No. 2 on the date of execution of the agreement is liable to be set aside.
12. Even if the submission of Shri Mukherjee is accepted and it is found that both the defendants were present on the date of execution of the agreement, the question arises as to whether defendant No. 2 was at all required to sign Ext. 1. Since I have already found that the defendants failed to prove separation and they were living jointly, the defendant No. 1 being Karta of the family was competent to sign the agreement and it was not necessary to take the signature of defendant No. 2 on the agreement. In view of the reasons stated above, I am of the view that presence or absence of defendant No. 2 on the date of execution of the agreement is not relevant as the defendant No. 1 as Karta of the family was competent to execute such an agreement. It also binds on the defendant No. 2.
13. Coming to the last question as to whether the plaintiff was ready and willing to perform his part of contract or not Shri Mukherjee
submitted that the evidence on record do not indicate the ready and willingness of the plaintiff to perform his part of contract and it was necessary for the plaintiff not only to prove that he had expressed his desire to perform his part of contract but also such expression should have been in the form of offering money and preparing a draft sale deed. In this connection, it is necessary to refer to the pleadings and the evidence available on record. In paragraph-4 of the plaint it is stated that as per terms, of the agreement the plaintiff requested the defendant to accept the consideration amount of Rs. 3,500/- and execute the sale deed in respect of the suit property in his favour but the defendants did not pay any heed to his request and on different pleas did not execute the sale deed. Thereafter the plaintiff had to issue notice through his advocate but the same was not received by the defendants purposefully. From the discussions made by both the Courts below, it appears that there is evidence on the side of the plaintiff in support of such a contention but it has been found that the notice sent by the plaintiff through advocate could not be served due to absence of the defendants. However, the evidence is clear to show that the plaintiff was ready and willing to offer Rs. 3,500/-towards the consideration amount and had approached the defendants on some occasions for execution of the sale deed but the defendants did not do so. Even accepting the contention of the learned counsel for the appellants that no notice was served on the defendants calling upon them to perform their part of contract, legal evidence is available to show that the plaintiff had approached the defendants on some occasions for execution of the sale deed. The evidence further shows that the plaintiff was willing to perform his part of contract on the date of filing of the suit and thereafter when the evidence was led. Though some decisions were cited by both the sides, on the question of law relating to ready and willingness, on examination of those decisions, I find that they depend on facts and circumstances of each case. From the facts and circumstances of the present case and on discussion of the evidence on record, the lower appellate Court in my view was justified in holding that the plaintiff was all along ready and willing to perform his part of contract.
14. In view of the discussions made above, I see no merit in both the appeals and the same stand dismissed.