JUDGMENT
N.K. Kapoor, J.
1. This is defendant’s regular second appeal against the judgment and decree of the Additional District Judge whereby the appeal filed by him against the judgment and decree of the trial Court was dismissed.
2. Briefly put, the plaintiff filed a suit for specific performance of agreement to tell dated 1-6-1981 in respect of the land measuring 16 Kanals situated in village Mangat, District Ludhiana. As per averments in the plaint, defendant entered into an agreement for the sale of this land in favour of the plaintiff at the rate of Rs. 18,000/- per acre and received a sum of Rs. 12,000/- as earnest money at the time of the execution of the agreement on 1-6-1981. The sale was to be executed by June 1, 1982. It was stipulated in the agreement that in the event of the failure of the defendant to execute and to get the sale deed registered within the stipulated period, the plaintiff will have the option to get the same executed and registered through the process of the Court, it is further averred that the defendant when approached postponed the matter on one pretext or the other. Ultimately, notice dated 28-5-1982 was served upon him but to no effect. The plaintiff waited for the defendant in the office of the Sub Registrar on the stipulated date but the defendant did not turn up. It was further averred that the plaintiff was always ready and willing to perform his part of the contract. Hence, the present suit.
3. The defendant contested the suit and raised few preliminary objections i.e, the land in dispute is ancestral property/coparcenary property and so the agreement to sell is not enforceable. The agreement is also unenforceable. The agreement is also unenforceable in view of the decree of the civil Court dated February 8, 1988. On merits, it was denied that he is owner of the suit land. He further asserted that he was allured by the plaintiff to affix his thumb impressions on a document and so at no time he intended to sell the suit property. The defendant even denied the execution and the validity of the agreement to sell. In fact, according to the defendant, the plaintiff had misrepresented. It was represented to him that the document was an agreement to mortgage. The defendant further pleaded that he is an illiterate and innocent person and that the attesting witnesses of the agreement are close relations of the plaintiff. Even receipt of earnest money of Rs. 12,000/- was denied.
4. On the pleadings of the parties, following issues were? framed :–
(1) Whether the defendant had executed an agreement dated 1-6-1981 to sell the suit land ? OPP
(2) Whether the agreement dated 1-6-81 was the result of fraud and mis representation ? OPD.
(3) Whether the plaintiff had paid Rs. 12000/- as earnest money to the defendant at the time of execution of agreement dated 1-6 81 ? OPP.
(4) Whether the plaintiff was ready and willing and is still ready and willing to perform his part of the contract ? OPP.
(5) Whether the suit land is the co-parcenary property of the defendant as alleged in the written statement. If so, its effect? OPD.
(6) What is the result of decree passed by Sh. R. K. Tyagi, Sub Judge, Ludhiana, on the present suit ? OP Parties
(7) Relief.
5. The trial Court examined issues No. 1 and 2 together. The plaintiff with a view to prove agreement Exhibit P-1 examined Devi Dayal, Vasika Navis, and Gurdial Singh, an attesting witness. Devi Dayal when appeared as witness deposed that this document was typed by him on the asking of the party which thereafter was thumbmarked by vendor and signed by Gurdev Singh on behalf of the vendee. He further deposed that the marginal witnesses of the agreement were present who attested the same. This document was duly entered in his register at serial No. 538 dated 1.6-1981. Even this entry in the register was also thumb marked and signed in the same manner. Gurdial Singh, a marginal witness, also deposed that this document was executed in his presence and was thumb-marked by the vendor admitting its contents to be true. The trial Court after referring to the deposition of the witnesses found no merit in the plea of the defendant that the document is liable to be ignored as the same has been attested by close relations of the plaintiff. To hold that the document has been duly executed by the defendant, the Court referred to para No. I of the written statement wherein the defendant admitted having thumb-marked a document though by alleged misrepresentation. The trial Court also found no merit in the plea of this document (agreement to sell) was intended merely to extend the period of limitation with regard to another agreement vide which another land measuring 24 Kanals was mortgaged by the defendant for a sum of Rs. 20,000/-. The trial Court after considering the various pleas raised by the defendant came to the conclusion that the same are devoid of any merit and so held that the execution of agreement to sell dated 1.6.1981 by the defendant in favour of the plaintiff stands fully proved. Resultantly, issue No. 2 was decided against the defendant. Under issue No. 3, it was held that the plaintiff had paid a sum of Rs. 12,000/- as earnest money at the time of execution of agreement dated 1-6.1281. Under issue No. 4, it was held that the plaintiff was always ready and willing to perform his part of the contract and this breach has been committed by the defendant. Issue No. 5 was also decided against the defendant holding that it is not proved that the suit land is coparcenary property of him and his sons. Issue No. 6 was decided against the defendant as no evidence was led. Resultantly, the suit of the plaintiff was decreed with the stipulation that the defendant shall execute the sale deed in favour of the plaintiff within two months from the date of decree on receipt of balance sale consideration and in case the defendant fails to comply with, the plaintiff shall deposit the remaining amount of consideration in the Court together with stamp and registration expenses within one month and shall be entitled to get the sale deed executed through the Court.
6. Before the appellate Court findings of the trial Court in respect of issue Nos 1, 2 and 3 were, assatled. It was contended by the learned counsel for the appellant that out of the two, attesting witnesses of agreement Exhibit P-1, Gurdial Singh is uncle of the plaintiff. whereas Sarwan Singh is his Phuphar (father’s sister’s husband) and so the agreement is vitiated on this ground alone. The appellate Court, however, found no merit in this plea of the appellant. The scribe and the attesting witnesses examined by the plaintiff have clearly proved the due execution of agreement Exhibit P-1. According to the lower appellate Court, even the. appellant half heartedly admitted the execution of the agreement Exhibit P 1 in the written statement. Since nothing has come on record that the same was executed on account of misrepresentation, the appellate Court held the document to be duly executed for consideration. The appellant’s plea that this agreement dated 1-6-1981 was, in fact, prepared in lieu of agreement dated 4,12.1981 was also found to be devoid pf any merit. Perhaps the defendant wanted to convey to the Court that document Exhibit P-1 was ante dated. Had it been so there would have been some cutting in the register of the petition writer Similarly, the Court did not find much merit in the plea of the defendant that the land was under mortgage for a sum of Rs. 8,00/- earlier and another Rs. 12,000/- were taken from the plaintiff thereby raising the mortgage amount to Rs. 20,000/-. This version was also discarded by the Court in view of the document Exhibit P dated 4-12-1981. A sum of Rs. 20,000/- was received by the defendant on 4.12.1981 and the land was subsequently redeemed as per writing Exhibit D 1 dated 23.6.1983. Exhibit D-2 could be related to Exhibit P-1 and D-2 are different, Even the Court found no merit in the plea of the appellant, that such agreement cannot be enforced as there was no mutuality between the parties. So the appeal was dismissed
7. Almost identical pleas have been raised which did not find favour with the Courts below. Both the Courts after carefully examining, the evidence record have come to the conclusion that the, agreement Exhibit P I was duly executed by the defendant-appellant in favour the plaintiff Findings of the Courts below in this regard have not been proved to be vitiated in any manner. All the same, the learned counsel urged that this document needs to be examined in the light of another another document D-2 executed by the defendant in favour of Gurdev Singh, father of the plaintiff, vide which another land measuring 3 acre was mortgaged for a sum of Rs. 20,000/- According to him in fact, defendant only agreed to mortgage the land vide writing Exhibit D-2 dated 4.12.1981 whereby a sum of Rs. 20,000/- was by him and the earlier writing Exhibit P 1 dated 1-6-1981 was, fact, ante dated so as to give it a colour authenticity. To dupe an innocent and illiterate person, like the defendant, document Exhibit P-1 was got attested by the near relations of the plaintiff Since the defendant had already received sum of Rs. 20,000/- there was no legitimate reason to sell the land as stated Exhibit P-1 and that too at a throwaway price. I-find no merit in the submission of the learned counsel for the appellant. Agreement Exhibit P-1 dated 1.6.1981 has been scribed by a petition writer as well attested by the two witnesses. Not only this the agreement has duly entered into the register of the petition writer which bears the thumb impression of the defendant.
The defendant has no disputed his thumb-impression upon the agreement Exhibit P-1. This way the agreement has been duly proved. There is no merit in the plea of the defendant that the agreement Exhibit P-1 was ante dated I.e. according to him, the same was executed on 4.12 1981 and that too for the purpose of mortgaging the suit land only. The pleas raised are highly conjectural and were rightly ignored by both the Courts.
8. The next submission of the learned counsel for the appellant is that agreement cannot be enforced on account of lack of mutuality. According to the learned counsel for the appellant, agreement itself though entered into with the plaintiff, yet the same bears the signatures of his father Gurdev Singh who is also purported to have given the alleged earnest amount of Rs. s12,000/- to the defendant. Thus there was no mutuality between the plaintiff and the defendant and in the absence of the same, such an agreement to sell is not enforceable on the well established doctrine of lack of mutuality. For this view, the counsel placed reliance upon the judgment in case reported as Jatadhar Prasad and Ors. v. Kishun Lal Daruka, A. I. R. 1950 Patna 535 and Shree Ram v. Rattan Lal, A. I. R. 1965 All. 83.
9. I am unable to accept this submission of the learned counsel also. Firstly, there is no such plea raised by the defendant in the written statement and secondly there is no requirement in law that the agreement has to be signed by the plaintiff The very fact that the plaintiff has come forward and sought specific performance of the agreement to sell Exhibit P-1 would imply that Gurdev Singh was duly authorised by the plaintiff to enter into such an agreement. Even otherwise the doctrine of lack of mutuality has now almost been given a go by in view of the specific provision contained in Section 20(4) of the Specific Relief Act. As per Section 20(4) of the Specific Relief Act, now Court can refuse to any party specific performance of a contract merely on the ground that the contract is not enforceable at the instance of the other party. I have also perused the judgments cited above and I am of the view that the same have no applicability on the facts of the present case.
10 No other point arise in the appeal. The appeal is devoid of any merit and the same is consequently dismissed. No costs.