Alka Bose Vs.
Parmatma Devi & Ors.  INSC 2193 (17 December 2008)
SUPREME COURT OF
INDIA RECORD OF PROCEEDINGS CIVIL APPEAL NO(s). 6197 OF 2000 ALKA BOSE
Appellant (s) VERSUS PARMATMA DEVI & ORS. Respondent(s) Date: 17/12/2008
This Appeal was called on for judgment today.
For Appellant(s) Mr.
For Respondent(s) Mr.
Shekhar Prit Jha,Adv. 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.
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)
P. Sathasivam, J.
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.
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.
have heard Mr. Ranjan Mukherjee, learned counsel appearing for the appellant.
On the contentions urged, the following points arise for consideration in this
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.
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.
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.
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.
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.
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 :
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
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.
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
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.
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.