Summary
The Supreme Court upheld the High Court's dismissal of a suit for specific performance of an agreement to sell, holding that a material alteration written in a different ink was discernible on a bare perusal of the agreement itself and that courts are not bound to refer such a question to an expert under Section 73 of the Evidence Act. The agreement, whose recitals of extent did not match its own schedule, could not found a decree, and the plaintiff's readiness and willingness was not established.
Issues
- Whether the High Court could find a material alteration in the sale agreement on a bare perusal of the document, without referring it to an expert under Section 73 of the Indian Evidence Act, 1872.
- Whether the plea of material alteration was available when the first defendant had not entered the witness box.
- Whether the plaintiff was entitled to specific performance on the agreement produced, having regard to its internal inconsistencies and the proof of readiness and willingness.
Provisions considered
- Section 73, Indian Evidence Act, 1872Section 73 permits the Court to compare a disputed signature or writing with writing admitted or proved to be that of the person concerned. The Court held it has no application to a finding of material alteration that is clearly discernible on a mere perusal of the document, written in a different ink; courts are not obliged always to refer such a question to an expert. (¶¶ 4, 5, 9)
Held
- A plaintiff seeking specific performance must first establish his own case before the defendant is called upon to answer it. Where the agreement on which the plaintiff himself relies bears a material alteration clearly discernible on its face (the recitals regarding the second item of property being written in a different ink), the agreement is tainted and the suit cannot stand. (¶ 6)
- The first defendant's failure to enter the witness box did not mean there was no plea of material alteration: the plea was taken in the written statement, and the second defendant, who stepped into the first defendant's shoes, gave evidence. The alteration was found on a perusal of the very document on which the entire suit was based. (¶ 7)
- No reliance can be placed, for granting specific performance, on an agreement whose recitals (1.40 acres for the first item and a further 1 acre for the second) do not match its schedule (2.40 acres of which 50 cents sold). The bank credit of Rs. 70,500 relied on to show readiness and willingness fell short of the balance consideration of about Rs. 95,000 that would be payable if both items were included, so the claim of readiness and willingness failed. (¶ 8)
- In finding a material alteration, courts are not obliged always to refer the document to an expert under Section 73 of the Evidence Act, especially when the alteration is clearly discernible on a mere perusal and is written in a different ink. The plaintiff's giving up, before the trial court, of his claim to the second item further imperilled a prayer for specific performance founded on the tainted agreement. (¶ 9)
Result
Appeal rejected; judgment of the High Court dismissing the suit for specific performance affirmed; no costs; pending applications disposed of.