Judgment:
Barin Ghosh and Madhavendra Saran, JJ.
1. A suit for specific performance of a contract for sale of an immovable property was decreed by the trial court. The appeal against such decree having been dismissed, the present Letters Patent Appeal has been filed.
2. The widow of Shyam Bihari Singh, Mostt. Mahtab Kuer, succeeded him as his sole heir and legal representative and accordingly, became owner of the properties left by Shyam Bihari Singh. The defendants in the suit were the heirs and legal representatives of the brother of Shyam Bihari Singh, late Banwari Singh. Mostt. Mahtab Kuer executed a deed of mortgage in October, 1973 and thereby mortgaged a part of her properties. On 3.11.1973 the subject agreement, specific performance whereof had been sought for, was executed by the Mostt. Mahtab Kuer agreeing to sell two bighas 9 kathas and 11 dhurs of land for a consideration of Rs. 20,000/- in respect whereof a sum of Rs. 15,000/- was paid to her and was accepted by her. The balance amount, of Rs. 5,000/- was to be paid to her at, the time of execution of the sale deed in the first week of January, 2004. Neither the deed of mortgage, nor the agreement contained signature of Mostt. Mahtab Kuer. They, however, contained her left hand thumb impression. The defendants, at the trial of the suit, accepted the deed of mortgage and accordingly, accepted the left hand thumb impression appearing thereon to be that of Mostt. Mahtab Kuer.
3. On 24.1.1974, plaintiff through an Advocate served a notice upon Mostt. Mahtab Kuer asking her to perform her part of the contract. This was replied by Mostt. Mahtab Kuer, as contended in paragraph 19 of the written statement, through her advocate on 30.1.1974. In that reply it, was contended that Mostt. Mahtab Kuer did not execute any agreement for sale.
4. In the written statement filed in the suit, it was contended that Mostt. Mahtab Kuer was a simple lady. It was also contended that she did not execute any document as that of the subject agreement for sale. At the trial a Government expert of C.I.D of the State proved the report given by five experts and the Director of Finger Prints Bureau, which suggested that the left hand thumb impression as appearing on the agreement for sale was identical to that of the finger print appearing on the admitted mortgage deed.
5. The agreement for sale did not contain any statement that the same was read over and explained to Mostt. Mahtab Kuer. It also does not appear from the evidence adduced on behalf of the plaintiff that before the left hand thumb impression was put, anyone explained the text of the agreement for sale to Mostt. Mahtab Kuer. Learned counsel for the appellants, thus, contended that the agreement has not been proved.
6. It is true that the burden to prove that Mostt. Mahtab Kuer entered into the subject agreement with the plaintiff lay upon the plaintiff from the day one until the close of the trial, but the fact remains that the initial onus to prove that such agreement was entered into was discharged by the plaintiff by proving execution of the agreement by Mostt. Mahtab Kuer and accordingly, the onus shifted upon the defendants and the evidence as adduced by them does not show that the defendants took any positive step to shift back the onus once again back to the plaintiff, for they did not explain how the thumb impression of the Mostt. Mahtab Kuer came to exist on the agreement for sale.
7. The learned counsel for the appellants then drew our attention to paragraph 15 of the plaint and contended that although the plaintiff had pleaded that he has all along been ready to perform his part of the contract and to pay the balance consideration amount, but there is no pleading that the plaintiff is still ready and willing to perform his part of the contract and accordingly, provisions of Clause C of Section 16 of the Specific Relief Act has not been complied with. In this connection learned counsel for the appellants also referred to forms 47 and 48 of the First Scheduled to the Code of Civil Procedure as well as judgment of the Hon'ble Supreme Court, reported in the case of Ouseph Varghese v. Joseph Aley and Ors. reported in : [1970]1SCR921 and in particular para 9 thereof.
8. The plaintiff in para 15 of the plaint used words which suggest that his readiness and willingness is present and continuous, as he used present continuous verb. To our mind that is more than sufficient pleading to satisfy the requirements of clause C of Section 16 of the said Act as well as forms referred to above of the Code.
9. In the judgment of the Supreme Court the plaintiff while sought for specific performance of a Contract, the defendant had set up in the written statement, a different contract. While the contract as pleaded by the plaintiff was not decreed, the contract as was pleaded in the written statement was decreed. The Hon'ble Supreme Court noticed that the contract as was pleaded by the plaintiff was totally a different contract, than the contract as was pleaded by the defendant and that even after filing of the written statement, the plaintiff did not amend his plaint and thereby incorporate such pleadings so as to suggest his readiness and willingness to perform and discharge his part of the obligations under the contract as was pleaded by the defendant. In those circumstances it was held he was not entitled to a decree for specific performance of the contract as pleaded in the written statement. We do not think that the ratio of that decision of the Supreme Court has any nexus or application to the present case, except that it is the bounden duty of the plaintiff to plead and prove his readiness and willingness to discharge his obligations under the contract as pleaded by him and there is no dearth of pleading and evidence to suggest that plaintiff has duly discharged his such obligations in the instant case.
10. In the result, the appeal fails and the same is dismissed.