This second appeal has been filed by plaintiff against the judgment and decree dated 31.5.2014 passed by Additional District Judge, Court No.3, Kannauj in Civil appeal No.03 of 2002, Madhu Sudan Vs. Harish Swarrop arising out of judgment and decree dated 13.8.2002 passed by Additional Civil Judge (S.D.), Kannauj in civil suit no.174 of 1983, Harish Swarrop Vs. Madhu Sudan Lal Bajpaee.
The brief facts of the case are that the plaintiff filed Civil Suit No.174 of 1983 for specific performance of contract on the basis of an unregistered agreement for sale dated 13.3.1974, in which the property in suit, the two shops were allegedly agreed to be sold by the defendant in favour of plaintiff for a sum of Rs.30,000/- only, an agreement was executed on payment of Rs.25,000/- as advance sale consideration, and sale deed was agreed to be executed in ten years on payment of Rs.5000/-, the balance sale consideration. The plaintiff allegedly sent notice to defendant, to which no heed was paid by the defendant and so Civil Suit No.174 of 1983 was filed for specific performance of contract. Vide judgment and decree dated 13.8.2002 passed by Civil Judge (S.D.), Kannauj, the suit of plaintiff-appellants was decreed with costs, for specific performance of contract. Feeling aggrieved, the defendant preferred Civil appeal No.03 of 2002 under section 96 of Code of Civil Procedure before District Judge, Kannauj which was transfered for disposal to the Court of Additional District Judge, Court No.3 Kannauj and was allowed with costs vide impugned judgment and decree dated 31.5.2014 setting aside the judgment and decree dated 13.8.2002 passed by the trial court and holding the agreement to be a forged document. Feeling aggrieved, now the plaintiff has preferred this second appeal.
Heard Sri Nalin Kumar Sharma, Sri Arvind Kumar Srivastava, learned counsel for the appellant and Sri Akhilesh Chand Shukla, learned advocate holding brief of Sri Rajeev Tiwari, learned counsel for the respondent.
Learned counsel for the appellant argued that the impugned judgment and decree passed by lower appellate court is wrong on facts and law; that the findings of trial court regarding execution of agreement and payment of advance sale consideration were correct; that since the agreement for sale relates to the year 1974, it does not require registration and it is wrong to say that the agreement is forged one; that the first appellate court acted wrongly in discarding the truthful evidence produced by and on behalf of the plaintiff-appellant and in relying on the untruthful and untrustworthy evidence produced by and on behalf of defendant-respondent; that the first appellate court failed to rely the expert report produced by the plaintiff regarding signatures of defendant over the agreement; that it acted wrongly in holding the agreement in question, since does not bear signatures of the plaintiff/proposed vendee, it cannot be considered to be an agreement for sale; that the first appellate court acted wrongly in disbelieving the agreement as one of its marginal witness was alleged to be minor at the time of execution of agreement and for non-production of the marginal witnesses without considering that both of the marginal witnesses had died; that the first appellate court acted wrongly in discarding the agreement and disbelieving the contract, as scribe of agreement turned hostile and did not support the plaintiff; that the lower appellate court erred under law by not following the mandatory provision of Order XLI Rule 31 of C.P.C.; that the judgment and decree passed by lower appellate court are illegal, erroneous and perverse; that following substantial questions of law are involved in the present second appeal :-
"(i) Whether, the judgment of reversal must be in strict compliance of order 41 rule 31 of C.P.C.?
(ii) Whether, the judgment based upon incorrect and inapplicable law can be said a judgment in the eye of law?
(iii) Whether, under the facts of the case the judgment of the lower appellate court can be said a just and proper judgment in the eye of law?
(iv) Whether, under the facts and circumstances of the case the judgments and decree passed by the lower appellate courts is liable to be set aside?"
Learned counsel for the caveator-respondent contended that the impugned agreement is not an agreement in the eye of law and is not enforcible at law; that the impugned agreement is forged and fabricated document and is inadmissible in evidence; that the agreement for sale is a bilateral document, which is required to be signed by both the parties and each parties binds the other; that language of agreement between two parties starts with we..... first party and ..... second party agree as under; that the impugned forged agreement dated 13.3.1974 is allegedly written on behalf of only defendant and starts with I Madhu Sudan Lal Bajpaee and does not contain any term and conditions, so as to be binding on the plaintiff Harish Swaroop, who has even signed alleged agreement; that it is proved from the evidence on record that alleged marginal witness of the impugned agreement Ram Bali was aged about only ten years ten months and was not competent to be marginal witness to the agreement; that according to educational record of school relating to Ram Bali proved by D.W.1 Munsi Lal the date of birth of Ram Bali is 3.3.1963 and being minor of 10 years on the date of alleged agreement, he may not be a competent person or witness to the agreement; that a witness is invariably required to be a prudent person of sound mind and is required to be major; that the plaintiff appellant failed to prove that both marginal witness of impugned agreement had died and failed to file their death certificates; that the plaintiff appellant failed to prove the agreement even by producing any secondary evidence; that the plaintiff has forged agreement and anti dated after obtaining an old stamp paper and forged agreement there upon relating to the year 1974 in order to avoid registration and appears to have mentioned names of two dead persons as attesting witnesses with mala fide intentions and ulterior motive; that the scribe of impugned agreement has not corroborated the plaintiff's case that there is no illegality, incorrectness or perversity in the impugned judgment of first appellate court; that the first appellate court has fully complied with the provisions of Order XLI Rule 31 of the Code of Civil Procedure and has decided the matter after framing the points for determination; that no substantial questions of law is involved in second appeal and second appeal may not be admitted and may kindly be dismissed at admission stage.
Upon hearing counsel for the parties and perusal of record and before proceeding further it appears expedient to reproduce certain provisions of section 2 (e), (g),(h),(i), Sections 10, and 20 of Indian Contract Act, 1872 as under :-
2. Interpretation-clause.- In this Act the following words and expressions are used in the following senses, unless a contrary intention appears from the context:-
(e) Every promise and every set of promises, forming the consideration for each other, is an agreement;
(g) An agreement not enforceable by law is said to be void;
(h) An agreement enforceable by law is a contract;
(i) An agreement which is enforceable by law at the option of one or more of the parties thereto, but not at the option of the other or others, is a voidable contract;
Section 10. What agreements are contracts.- All agreements are contracts if they are made by the free consent of parties competent to contract, for a lawful consideration and with a lawful object, and are not hereby expressly declared to be void.
Section 20, Agreement void where both parties are under mistake as to matter of fact.- Where both the parties to an agreement are under a mistake as to a matter of fact essential to the agreement the agreement is void."
The above provisions shows that for an agreement there must be at least two parties and any agreement, if required to be reduced into writing is necessarily required to be signed by two or more parties as the case may be. The agreement for sale is a bilateral document, which is required to be executed between the proposed vendee and proposed vendor, where by an agreement they may agree to transfer a property in future and decide the terms of transfer/sale viz., amount of consideration, payment of advance sale consideration, if any, and the period within which the transfer/sale deed will be executed. The terms and conditions of the agreement for sale bind, each of the two parties i.e. if the second party/vendee fails to perform his part of contract, the first party/vendor may seek specific performance of contract under the agreement for sale and if the first party/vendor fails to perform his part of contract, the second party/vendee may get the agreement for sale enforced at law for forfeiture of advance sale consideration or for enforcement of whatever terms agreed between them like claim of damages etc. The agreement in question in this case, of which a copy has been filed as Annexure No.1 to the affidavit filed in support of stay application which is said to have been executed only on behalf of the defendant-respondent and neither there are any terms and conditions binding vendor/plaintiff nor it has been signed by the plaintiff-appellant. The plaintiff-appellant has not assigned any reason for not getting the agreement for sale jointly executed and signed by himself as well as the defendant-respondent. The defendant has denied theas his criminal history, execution of above alleged agreement and the above agreement in question may not be termed to be agreement of sale in the eye of law because it is only a unilateral document allegedly forged and ante dated and may not be considered to be a bilateral agreement for sale, enforcible at law by either of the parties to agreement. There is no case of plaintiff that two documents were prepared simultaneously by both parties unilaterally and the one executed by and on behalf of plaintiff was handed over to defendant and the other executed by an on behalf of defendant was handed over to the plaintiff.
It may also be mentioned that Section 11 of Indian Contract Act, 1872 provides, as to who are competent to contract. For ready reference section 11 of the Indian Contract Act is being reproduced as under:-
"11. Who are competent to contract.- Every person is competent to contract who is of the age of majority according to the law to which he is subject, and who is of sound mind and is not disqualified from contracting by any law to which he is subject."
It also expedient for ready reference to reproduce the provisions of Order XXXII Rule 1 of the Code of Civil Procedure:-
"Order XXXII SUITS BY OR AGAINST MINORS AND PERSONS OF UNSOUND MIND
1. Minor to sue by next friend.- Every suit by a minor shall be instituted in his name by a person who in such suit shall be called the next friend of the minor.
[Explanation.- In this Order, "minor" means a person who has not attained his majority within the meaning of section 3 of the Indian Majority Act, 1875 (9 of 1875) where the suit relates to any of the matters mentioned in clauses (a) and (b) of section 2 of that Act or to any other matter.]"
The above provisions shows that the minor or person of unsound mind is not considered to be a competent person for any purpose whatsoever and in fact person means an adult person of ordinary prudence not of unsound mind. A person who has not attained the age of 18 years is considered to be minor in view of provisions of Indian Majority Act and has been considered to be incompetent to deal with the affairs like a major person. It is also noteworthy that person below of age of 18 years even if commits any offence has been given special protection under law and the provisions of Juvenile Justice Act, 2000 and special provisions have been made for keeping him in protection home instead of jail and also for grant of bail to them irrespective of the gravity of offence, except in exceptional circumstances. The law has considered a minor to be incompetent for any purpose and neither he can sue or can be sued without next friend or guardian. The minor cannot enter into a contract without a guardian and even if he is vendee or beneficiary under the contract, he is required to be represented by his guardian. It is also noteworthy that the testimony of child witness is not required to be given much reliance except in a matters of criminal incident as in matters of criminal incidents the minor or child may have been one or only eye witness of the incident or a victim of the incident. Even in such cases the testimony of minor or child witness is required to be recorded after testing his capacity to understand the affairs regarding the incident and still reliance can be placed on his testimony with special care and caution. In other cases generally speaking such reliance cannot be placed on the testimony of a child witness or minor.
From the evidence on record, it is proved that witness Ram Bali the alleged marginal witness of agreement dated 13.3.1974 was aged about only 10 years, 10 months, as his date of birth was proved to be 3.3.1963 and so also the execution of agreement becomes doubtful. The plaintiff-appellant has failed to assign any reason before the trial court as to why the minor was made a marginal witness of the agreement and whether no other major person was available for the purpose.
The first appellate court before considering the facts and evidences on record has framed following point for determination 'whether defendant Madhu Sudan agreed to sale his disputed shops for a sum of Rs.30,000/- and executed a agreement for sale on 3.3.1974 after receiving a sum of Rs. 25,000/- towards advance sale consideration, and whether the alleged agreement for sale is a forged and fictitious agreement, and whether the attesting witness Ram Bali was minor on the date of execution of agreement dated 13.3.1974.' The above point for determination in fact, consists of three points of determination under which the first appellate court has discussed and analyzed the entire evidences produced before the trial court and has rightly held that when a minor person may not be competent as a party to a contract, or competent to sue or be sued, the same person being minor may not be a competent to be marginal or attesting witness to a deed. The first appellate court has rightly held that since agreement for sale is a bilateral document and the execution of alleged disputed agreement paper no.41A- ½ dated 13.3.1974 has been denied for want of signatures of plaintiff vendee as well as due to minority of alleged witness Ram Bali, (whose date of birth was proved to be 3.3.1963, and he was below eleven years of age, and may not be competent to attest the alleged agreement) its genuineness becomes doubtful. It is also pertinent to mention that scribe of the alleged agreement has denied payment of any advance sale consideration before him or signatures having been put by the defendant-respondent or the marginal witnesses in his presence rather has stated that the blank signed stamp paper was given to him and the agreement was written at the dictation of the plaintiffs-appellant. That the plaintiff has produced himself, handwriting expert and scribe and none else to prove his case and no secondary evidences has been produced to prove the contract for sale or agreement or signatures of defendant and witnesses by any other person allegedly present at that time of execution of agreement or at the time of negotiations for sale.
In view of discussions made above, I do not find any force in the arguments of learned counsel for the appellant and do not find involvement of any substantial question of law in present second appeal, as have been mentioned at page 6 and 7 of the memo of appeal or otherwise. The plaintiff-appellant has failed to satisfy the Court that his case involves any substantial question of law and in absence of any substantial question of law, there is no sufficient ground for admitting the second appeal under the provisions of Section 100 of the Code of Civil Procedure. The second appeal is devoid of merits and is liable to be dismissed at admission stage.
The Second Appeal is dismissed accordingly.
Date: 26.9.2014 Tamang/-