Alka Bose vs Parmatma Devi & Ors

Hon'ble Mr. Justice P. Sathasivam pronounced the judgment of the

Bench comprising Hon'ble Mr. Justice R.V. Raveendran and Hon'ble Mr. Justice

P. Sathasivam.

The appeal is dismissed in terms of the signed judgment. No

costs.

(R.K.DHAWAN) (VEERA VERMA) COURT MASTER COURT MASTER

(Singed Reportable judgment is placed on the file) REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 6197 OF 2000

Aloka Bose .... Appellant (s)

Versus

Parmatma Devi & Ors. .... Respondent(s)

JUDGMENT

P. Sathasivam, J.

1) Challenge in this appeal is to the order dated 7.9.1999 passed by the

Division Bench of the High Court of Patna, Ranchi Bench allowing L.P.A. No.29

of 1993 (R) filed by Smt. Parmatma Devi - first respondent herein.

2) The facts of the case, in a nutshell, are as follows:

By virtue of a written agreement of sale on 7.9.1979, one Kanika Bose

(since deceased) had agreed to sell to the first respondent the southern

portion of house being Holding No. 786-C, Ward No.1, Mohalla Barmasia

under Giridih Municipality for a consideration of Rs.34,500/-. The first

respondent paid a sum of Rs.2001/- as earnest money and part payment and

a further sum of Rs.2000/- on 10.10.1979 to Kanika Bose on a condition that

the sale deed would be executed within three months and balance

consideration money would be paid at the time of execution of the sale deed. As Kanika Bose did not execute the sale deed, on 6.12.1979, the first

respondent instituted suit being T.S. No. 54 of 1979 for specific performance

in the Court of Subordinate Judge, Giridih, Bihar. In the said suit, the

defendant - Kanika Bose filed her written statement denying the averments

made in the plaint. By judgment dated 28.09.1983, the subordinate Judge,

Giridih decreed the suit against the defendant. Challenging the said decree,

the defendant preferred a first appeal before the High Court of Patna, Ranchi

Bench and the same was registered as First Appeal No. 111 of 1983 (R). By

judgment dated 04.10.1993, learned single Judge allowed the first appeal and

dismissed the suit. Against the said judgment, the first respondent herein

filed L.P.A. No. 29 of 1993(R). A Division Bench of the High Court, by the

impugned judgment dated 7.9.1999 allowed the said L.P.A. by setting aside

the judgment dated 4.10.1993 passed by the learned single Judge and

restoring the judgment and decree of the trial court. Aggrieved by the said

judgment, Kanika Bose-the defendant has preferred this appeal by way of

special leave before this Court. Pending appeal, Kanika Bose died on

27.5.2007. On an application for bringing the legal heirs on record, three

legal representatives were brought on record i.e., Aloka Bose as appellant and

other two legal heirs as proforma respondent Nos. 2 & 3.

3) We have heard Mr. Ranjan Mukherjee, learned counsel appearing for the

appellant. On the contentions urged, the following points arise for

consideration in this appeal:

i) Whether an agreement of sale (Ext.2) executed only by the vendor, and

not by the purchaser, is valid?

ii) Whether the plaintiff has satisfied and established her case for decree

for specific performance under Section 16(c) of the Specific Relief Act, 1963.

4) The main contention urged on behalf of the defendant is that the

signature found in the agreement was forged and in any event, in the absence

of signature of the purchaser, Ext.2 is neither a complete nor a valid

agreement; and consequently the plaintiff is not entitled to enforce the same.

In this respect, it is relevant to point out that the learned trial Judge framed

specific issues, namely, Issue Nos. 5 and 6 and discussed the same in detail.

In the plaint, the plaintiff has asserted that an agreement of sale was duly

executed by the defendant and she had put her signature in token of its

execution after receiving the earnest money. In order to prove the

genuineness of the agreement of sale (Ext.2), the plaintiff has asserted that

defendant had executed the said agreement. She also got the signature of the

defendant in the agreement of sale Ext.2 examined and compared with the

admitted signature of the defendant through handwriting expert P.W.1 Syed

Ekbal Taiyab Hussain Raza who opined that the signature on the agreement of

sale as well as specimen signatures of the defendant are one and the same.

Apart from the expert evidence, plaintiff has also produced P.W.3 - Shankar

Lal, a land broker, who asserted on oath that the defendant had put her

signature in the agreement of sale. Apart from this, P.W. 4 - Jagdish Prasad,

brother of the plaintiff's husband and P.W. 9 - Ishwari Prasad Budholia,

husband of the plaintiff also asserted that the defendant Kanika Bose had put

her signature in the agreement of sale in their presence. As stated earlier, it is

not the case of the defendant that she did not put any signature in the

agreement of sale. On the other hand, she had given an explanation how her

signature was obtained on a blank paper. Though defendant has also

examined one expert D.W. 2 S.K. Chatterjee, the trial Court has concluded that

the said D.W.2 has not compared all the signatures alleged to have been put by the defendant in the agreement of sale nor examined those endorsements

which are alleged to be made by the defendant Kanika Bose. Since the trial

Court analyzed and compared the opinion of two experts with materials placed

before them and preferred to accept the opinion of expert examined by the

side of the plaintiff, there is no reason to dispute the said conclusion. In the

light of the controversy the Division Bench of the High Court also compared

the signature found in other documents such as vakalatnama, written

statement with that of the signature found in Ext.2 and concluded that the

signature found in the agreement of sale was that of the defendant Ms. Kanika

Bose. We are of the view that there is no valid reason to disturb the above

factual finding based on acceptable materials. The learned Single Judge of the

High Court committed an error in taking a contrary view.

5) The defendant submitted that a contract for sale, like any other contract,

is bilateral in nature under which both vendor and the purchaser have rights

and obligations. It is submitted that an agreement for sale being a contract for

sale, creating a right in the purchaser to obtain a deed of conveyance in terms

of the agreement under which, the vendor agrees to convey to the purchaser,

and the purchaser agrees to purchase, the subject-matter of the agreement

for an agreed consideration, subject to the terms and conditions stipulated in

the said agreement, it is bilateral. It is therefore contended that an agreement

of sale is neither complete nor enforceable unless it is signed by both parties.

6) Certain amount of confusion is created on account of two divergent

views expressed by two High Courts. In S. M. Gopal Chetty vs. Raman [AIR 1998

Madras 169], a learned Single Judge held that where the agreement of sale was

not signed by the purchaser, but only by the vendor, it cannot be said that

there was a contract between the vendor and the purchaser; and as there was no contract, the question of specific performance of an agreement signed only

by the vendor did not arise. On the other hand, in Md. Mohar Ali vs. Md. Mamud

Ali [AIR 1998 Gauhati 92], a learned Single Judge held that an agreement of sale

was an unilateral contract (under which the vendor agreed to sell the

immovable property to the purchaser in accordance with the terms contained

in the said agreement), that such an agreement for sale did not require the

signatures of both parties, and that therefore an agreement for sale signed

only by the vendor was enforceable by the purchaser.

7) We find that neither of the two decisions have addressed the real issue

and cannot be said to be laying down the correct law. The observation in Md.

Mohar Ali (supra) stating that an agreement of sale is an unilateral contract is

not correct. An unilateral contract refers to a gratuitous promise where only

party makes a promise without a return promise. Unilateral contract is

explained thus by John D. Calamari & Joseph M. Perillo in The Law of Contracts

(4th Edition Para 2-10(a) at pages 64-65):

"If A says to B, `If you walk across the Brooklyn Bridge I will pay you $ 100,' A has made a promise but has not asked B for a return promise. A has asked B to perform, not a commitment to perform. A has thus made an offer looking to a unilateral contract. B cannot accept this offer by promising to walk the bridge. B must accept, if at all, by performing the act. Because no return promise is requested, at no point is B bound to perform. If B does perform, a contract involving two parties is created, but the contract is classified as unilateral because only one party is ever under an obligation."

All agreements of sale are bilateral contracts as promises are made by both -

the vendor agreeing to sell and the purchaser agreeing to purchase. On the

other hand, the observation in S.M. Gopal Chetty (supra) that unless agreement is

signed both by the vendor and purchaser, it is not a valid contract is also not sound. An agreement of sale comes into existence when the vendor agrees to

sell and the purchaser agrees to purchase, for an agreed consideration on

agreed terms. It can be oral. It can be by exchange of communications which

may or may not be signed. It may be by a single document signed by both

parties. It can also be by a document in two parts, each party signing one copy

and then exchanging the signed copy as a consequence of which the

purchaser has the copy signed by the vendor and a vendor has a copy signed

by the purchaser. Or it can be by the vendor executing the document and

delivering it to the purchaser who accepts it. Section 10 of the Act provides all

agreements are contracts if they are made by the free consent by the parties

competent to contract, for a lawful consideration and with a lawful object, and

are not expressly declared to be void under the provisions of the Contract Act.

The proviso to section 10 of the Act makes it clear that the section will not

apply to contracts which are required to be made in writing or in the presence

of witnesses or any law relating to registration of documents. Our attention

has not been drawn to any law applicable in Bihar at the relevant time, which

requires an agreement of sale to be made in writing or in the presence of

witnesses or to be registered. Therefore, even an oral agreement to sell is

valid. If so, a written agreement signed by one of the parties, if it evidences

such an oral agreement will also be valid. In any agreement of sale, the terms

are always negotiated and thereafter reduced in the form of an agreement of

sale and signed by both parties or the vendor alone (unless it is by a series of

offers and counter-offers by letters or other modes of recognized

communication). In India, an agreement of sale signed by the vendor alone

and delivered to the purchaser, and accepted by the purchaser, has always

been considered to be a valid contract. In the event of breach by the vendor, it can be specifically enforced by the purchaser. There is, however, no practice of

purchaser alone signing an agreement of sale.

8) The defendant next contended that the agreement of sale in this case

(Ex.2) was clearly in a form which required signatures of both vendor and

purchaser. It is pointed out that the agreement begins as : "Agreement for

sale between Kanika Bose and Parmatma Devi" and not an "Agreement of sale

executed by Kanika Bose in favour of Parmatma Devi". Our attention is also

drawn to the testimonium clause (the provision at the end of the instrument

stating when and by whom it was signed) of the agreement, which reads thus :

"In witnesses whereof, the parties hereto have hereunto set and subscribed their respective

hands and seals on these presents." It is therefore contended that the agreement

specifically contemplated execution by both parties; and as it was not so

executed, it was incomplete and unenforceable. We have carefully examined

the agreement (Ex.2), a photocopy of which is produced. The testimonium

portion in the agreement is in an archaic form which has lost its meaning.

Parties no longer `subscribe their respective hands and seals'. It is true that

the format obviously contemplates signature by both parties. But it is clear

that the intention of the parties was that it should be complete on signature by

only the vendor. This is evident from the fact that the document is signed by

the vendor and duly witnessed by four witnesses and was delivered to the

purchaser. Apart from a separate endorsement made on the date of the

agreement itself (7.9.1979) by the vendor acknowledging the receipt of

Rs.2001 as advance, it also contains a second endorsement (which is also duly

witnessed) made on 10.10.1979 by the vendor, acknowledging the receipt of a

further sum of Rs.2000 and confirming that the total earnest money received

was Rs.4001. This shows that the purchaser accepted and acted in terms of the agreement which was signed, witnessed and delivered to her as a

complete instrument and that she then obtained an endorsement thereon by

the vendor, in regard to second payment. If the agreement was not complete,

the vendor would not have received a further amount and endorsed an

acknowledgement thereon on 10.10.1979. Apart from the above, the evidence

of the witnesses also shows that there was a concluded contract. Therefore,

even though the draftsman who prepared the agreement might have used a

format intended for execution by both vendor and purchaser, the manner in

which the parties had proceeded, clearly demonstrated that it was intended to

be executed only by the vendor alone. Thus we hold that the agreement of

sale (Ext. 2) signed only by the vendor was valid and enforceable by the

purchaser.

9) The trial Court as well as the Division Bench of the High Court on the

analysis of the materials in the form of oral and documentary evidence

concluded that the vendee had performed her part by paying the earnest

money and sent a notice conveying her willingness and readiness to pay the

balance of sale consideration. The said notice was acknowledged by the

defendant. The clauses in the agreement clearly show that the vendor had to

perform and fulfill the terms of agreement by executing the sale deed on

receipt of the consideration. We have already adverted to the fact that the

vendee had performed her part of the contract.

10) The trial Court and the Division Bench also concluded that the plaintiff

had fulfilled the conditions as stated in Section 16(c) of the Specific Relief Act

and in that event the plaintiff is entitled decree for specific performance which

was rightly granted by the trial Court. Though learned counsel for the

appellants pointed out that the claim of the plaintiff that she was put in possession of a portion of the suit property in part performance was not

accepted by the trial Court, in the light of the categorical findings about the

validity of Ext. 2 and satisfactory proof of other conditions for granting the

decree for specific performance, we are unable to accept the said contention.

On the other hand, we agree with the conclusion arrived at by the Division

Bench and hold that the agreement of sale was enforceable and the trial Court

has rightly granted decree which was affirmed by the Division Bench of the

High Court.

11) Looked at from any angle, the judgment of the Division Bench of the

High Court setting aside the order of the Single Judge and affirming the

judgment and decree of the trial Court, does not warrant any interference by

this Court. Consequently, the appeal fails and the same is dismissed. No

costs.

.......................................J. (R.V. Raveendran)

.......................................J. New Delhi; (P. Sathasivam) December 17, 2008.