TaxTMI 
TaxTMI 
1962 (8) TMI 79
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....d to him.' The respondent challenged this decree by an appeal before the Patna High Court, and his challenge has succeeded. In the result, the decree passed by the trial Court was reversed and the appellants suit dismissed with costs throughout. It is against this decree that the appellant has come to Court with a certificate issued by the Patna High Court; and so, the principal question which arises in the present appeal is whether the agreement on which the appellants suit is based is genuine, valid and for consideration. The subject-matter of the agreement of sale is a house belonging to the respondent. According to the appellant, at the time when the agreement was executed, the consideration for the transfer was settled at Rs. 14,000/- out of which Rs. 10,900/were paid as earnest money. The agreement had stipulated that the sale-deed had to be executed within three months from its date; in other words, under the agreement, the respondent was bound to execute the sale-deed on or before the 18th August., 1950. The appellant called upon the'respondent to carry out the terms of the agreement and offered to pay the balance of Rs. 4,000/-, but since the respondent did not comply w....
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....of sale at all. He had entrusted the appellant with stamp papers be &- ring his thumb marks in order that he may act as an arbitrator in his dispute with Ramzan Ali. The respondent thus alleged that the appellant had made fraudulent use of the stamp paper entrusted to him by the respondent for a different purpose and had brought into existence a forged document on which the present suit was based. The respondent also denied that he had received Rs. 10,000/-or that be wanted to purchase an Ice-cream machine. He urged, that the value of the house which was the subject-matter of the alleged agreement was worth Rs. 60,000/-. In other words, the respondent disputed the genuineness of the agreement and so, resisted the appellant's claim for specific performance. On these pleadings, the trial Court framed four issues, the principal issue being in regard to the genuineness and validity of the suit agreement and its consideration. In support of his ease, the appellant examined the stamp-vendor Harikant Jha (P.W.3) to prove the purchase of the stamp paper for the purpose of drafting the agreement. He examined Mr. Choudhary (P.W. IO), the young lawyer whose father had dictated the draft to....
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....f the findings made by the High Court. In consequence the trial Court's decree was reversed and be seen that the question which we have to decide in the present appeal is a question of fact and its decision lies within a very narrow compass did the respondent execute the agreement of sale and has he received Re. 10,000/- as earnest money under it ? Incidentally, what can be said to be the proper value of the house which is the subject-matter-of the agreement ? These are the main points which fall to be decided. Before considering the evidence adduced by the parties in the present proceedings, it would be necessary to examine some broad and general features of the case on which both the parties have relied before us. Mr. Sastri for the respondent have urged that there are certain unusual features of the case which lend support to the final decision of the High Court. The first circumstance on which Mr. Sastri relies is that the plaint does not refer to the making of the draft by a Senior lawyer as it should have. Mr. Choudhary, the senior lawyer, it is conceded, was a lawyer of status in Sitamarhi and the argument is that if his services had been requestioned in making a draft be....
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....hat unusually worded, the court should draw the inference that the senior Mr. Choudhary could not have dictated it and, the whole story about the draft is false. The same comment has to be made in respect of the other clause on which the argument is based. This clause provides that "if the claiment does not get the saledeed executed by me, the executant, within the due date or he does not pay the remaining consideration money at proper time, 1, the executant, shall be competent to realise the remaining consideration money in proper manner from the claiment and shall forfeit the earnest money". This again is an unusual provision. But it cannot sustain the argument that the story about the draft having been directed by Mr. Choudhary'is untrue. That fact will have to be decided in the light of the oral evidence adduced by the appellant to show that the draft was in fact dictated by the senior Mr. Choudhary. Therefore, we do not think that the two clauses on which Mr. Sastri relies can justify the exclusion that the story about the draft is a fiction. Mr. Sastri then contends it is very unusual that Re. 10,000/- should have been paid as earnest money when the total price for the pro....
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....alue of his house by examining Karim Bux. This witness who has not read in any school or college, claims to have worked as an estimator in the P. W. D. He has now retired from service. He produced a statement showing the value of the property. The statement estimated the cost of construction of the house at Rs. 29,358/- and the value of the land on which the house stands at Rs. 33,900/-. It appears that this witness prepared his report two days before he was examined and he was summoned on the day on which he gave his evidence. He admitted that he did not examine any witness or consult sale deeds of any contiguous properties, nor did he examine the foundation of the pliinth of the house or see whether the plinth was underground. The number of bricks and their quality has not been considered by him. The value of the wood works has been specifically mentioned by him. He has not given the value of cement, mortar and lime separately. He did not even enquire for how. much the house. had been purchased by the respondent and how much he had spent on its improvements. It is true that on this evidence, the High Court has made a fiding that the value of the property cannot be less than Rs. 3....
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....eceipts were with him. Then he added that he did not himself purchase the bricks, and suggested that about Rs. 9,000/- may have been paid as the price of the bricks. It would thus be seen that the statements made by this witness do not appear to be credible and the claim made by him that the construction work of the house spread over several years and that he spent Rs. 30,000/- for the improvements, cannot, therefore, be accepted as true. Inour opinion, on the material as it stands, there was no justification for the High Court to have reversed the finding of the trial Court about the value of the property, Therefore, the arguments that the value of the property was Rs. 30,000/- and that negatives the version about the agreement of sale, must be rejected. On the other hand, there are some other broad features of the case which support the appellant's version. It appears that the appellant's father holds a position or status and reputation in sitamarhi. He was the Chairman of the sitamarhi Municipality for some years and the respondent has admitted that his father who was a doctor and the appellant's father who its Vaidya were friends and that between the families, good relations....
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..... He contends that if he can demonstrate that the arbitration story set up by the respondent in support of his version that a stamp paper was given to the appellant with his thumb marks for the purpose of endorsing the arbitration agreement and it has been fraudulently used by him for the purpose of the suit agreement is false, then the conclusion is inescapable that the agreement is genuine and has been duly executed by the respondent. It would be recalled that the respondent's version in this matter is that at the relevant time, two suits were pending between him and Ramzan Ali. Ramzan Ali was his tenant and he had sued Ramzan Ali for rent and Ramzan Ali 'had sued in the Rent Controller's Court for the fixation of standard rent. According to him, the dispute between him and Ramzan Ali was referred to the appellant for his arbitration and in that connection stamps were purchased on the 15th of May. Three days thereafter, the appellant told him that the said stamps had been lost and so, stamp were purchased again on the 18th May. Thus, the purchase of the stamps on the 18th May is admitted by the respondent, but it is explained on the ground that he purchased the said stamps becaus....
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.... it was hardly necessary 'for the respondent to lead any evidence in that suit. All that the parties had to do was to tell, the court that the suit need not be proceeded with because the matter in dispute was being adjudicated upon by the arbitrator of their choice. This conduct of the respondent on May 31, 1960, is wholly inconsistent with his theory that the appellant had been asked to arbitrate on the dispute between him and Ramzan Ali. Besides, if the story about the arbitration had been true, the respondent could have easily examined Ramzan Ali to support his version. When he was asked whether Ramzan Ali had put his thumb mark on the at-amp paper which is-alleged to have been given to the appellant to engross an agreement, the respondent said that he did not know and by way of explanation, he added that he could not know because he was not on speaking terms with him at that Time. He also stated that he was not on speaking terms with him on the day when he gave evidence and so, he had not enquired if. he had put his thumb mark on the stamp paper or not. Later on, under stress of cross-examination, he admitted that he was on talking terms with Ramzan Ali since 1951, that he w....
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....to purchase them from a big medicine shop, such as that of the appellant's father. When he went to purchase the medicine, he found that the document was being executed. So, he stayed on, attested the document, purchased the medicine and left the place. This witness is not related to the appellant and is not shown to be hostile to the respondent either. He is a disinterested person who went to the appellant's father's shop to purchase the medicine in the ordinary course, and he swears that he attested the document. He has also referred to the writing of the document by Khakhan Singh and its attestation by two other witnesses. The criticism against this witness which has been accepted by the High Court is that he walked six miles to purchase the medicine which is not likely and that he waited for some time until the document was completed which is improbable We are not impressed by this criticism. In considering the question as to whether evidence given by the witness should be accepted or not the court has, Up doubt, to examine whether the witness is an interested witness and to enquire whether the story deposed to by him is probable and whether it has been shaken in crossexaminatio....
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....in the,nageative, that has been used against him for the purpose of showing that he never stayed in Sitamarhi. Like the two other attesting witnesses, Bihari Lal also does not appear to be interested and We see 'no reason to disbelieve his evidence. The scribe, Khakhan Singh, has supported the appellant's case both in regard to the making of the draft and engrossing the draft as a fair copy on the stamp paper. The main point which is made against him is that he did not remember who drew the four lines in the execution portion of the document over the head of the writing showing that the respondent had received Rs. 16,000/- We see no substance in the criticism made against this witness as a result of this statement. We have seen the four lines ourselves and we see nothing auspicious about those lines. Some persons draw lines before they write and some do not, and when lines are drawn, one line may be longer than the other, These are all matters of individual mannerism' and no serious, point can be made on the statement of the soribe because, having looked at the'lines in relation to the thumb marks made by the respondent, they do not appear to be suspicious at all. The appella....
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....ent which may have been thought necessary to be got through his mouth for the success of the appellant and that without any scruple either for the ethics of the profession or for the sanctity of truth." We have carefully considered the evidence of this young lawyer and we agree with the trial Court that the story deposed to by him is true and straightforward. Thus, the position is that the evidence led by the appellant satisfactorily proves the purchase of the stamps which bore the thumb marks of the respondent, the preparation of the draft and the engrossment of the draft on a stamp paper by the scribe Khakhan Singh, and its attestation by the three attesting witnesses. That is why we feel no difficulty in holding that the trial Court was right in coming to the conclusion that the suit agreement was genuine and valid and is supported by consideration. In our opinion, the High Court was not justified in interfering with this conclusion in appeal. We have so far not considered the evidence of the experts. Mr. Bennett examined by the appellant supports the appellant's case, whereas Nasrat Hussain examined by the respondent supports his case. Evidence given by experts of handwri....
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....imilarly, in criticising the trial Court for accepting the evidence of Jamans Singh, the High Court has observed that the presumption made by the trial Court that teacher, as a rule, In a respectable person, ,is not any legal appreciation of the evidence but a way found to suit the convenience of the court for holding in favour of the plaintiff". It would thus be seen that in reversing the decision of the trial Court the High Court has suggested that the trial Court was persuaded by ,extraneous considerations and that some pull and weight had been used in favour of the appellant from behind. We are constrained to observe that the High Court was not justified in passing these strictures against the trial Judge in dealing with the present, case. Judicial experience shows that in adjudicating upon the rival claims brought before the courts it is not always easy to decide where truth lies. Evidence is adduced by the respective parties in support of their conflicting contentions and circumstances are similarly pressed into service. In such a case, it is, no doubt, the duty of the Judge to cover the evidence objectively and dispassionately, examine it in the light of probabilities and de....