Surendra Kumar vs Smt. Meena Devi
- Court
- Patna High Court
IN THE HIGH COURT OF JUDICATURE AT PATNA
FIRST APPEAL No.97 of 2022
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Surendra Kumar, son of Sri Hari Bhagat Singh, R/o Village-Nasilpur, P.O.-
Arbal, P.S. and District-Arval, Bihar, Pin Code-804401, at present resident of
Mahabir Nagar Gola Road, P.O.-Danapur, P.S.-Rupaspur, District-Patna.
... ... Appellant
Versus
Smt. Meena Devi Wife of Sanjay Kumar Mahto, Resident of Gola Road,
Nahar, P.O.-Danapur, P.S.-Rupaspur, District-Patna.
... ... Respondent
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Appearance :
For the Appellant/s : Md. Waliur Rahman, Advocate
For the Respondent/s : Mr. Rahul Kumar, Advocate
======================================================
:
CORAM HONOURABLE MR. JUSTICE RUDRA PRAKASH MISHRA
C.A.V. JUDGMENT
Date : 10.07.2026
The present appeal has been preferred against the
judgment and decree dated 13.10.2022 passed by the learned
Sub-Judge-I, Sub Divisional Court Danapur, Patna in Title Suit
No. 165 of 2020, whereby the suit instituted by the plaintiff-
appellant for specific performance of agreement to sale dated
04.08.2019 has been dismissed without contest.
2. The case of the plaintiff/appellant, in brief, is
that the defendant acquired the suit property i.e. a triple storied
building situated at Mahabir Nagar Gola Road, Danapur, by
virtue of registered Sale Deed No. 5214 dated 06.08.2009
executed by Biranjan Sah and others. After purchase, the
defendant got her name mutated and constructed the building
thereupon. It is the further case of the plaintiff that the defendant
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agreed to sell the said property to him for a total consideration
amount of Rs. 15,00,000/- and an agreement to sell dated
04.08.2019 was executed between the parties. According to the
plaintiff, a sum of Rs. 50,000/- was paid on 04.08.2019 as
earnest money and thereafter further amounts were paid on
different dates i.e. Rs.50,000/- on 15.08.2019, Rs.50,000/- on
18.08.2019 and subsequently Rs. 2,00,000/-, totaling Rs.
3,50,000/- and more, which were duly acknowledged by the
defendant by putting her L.T.I. and signature on the back side of
the agreement itself. The plaintiff further pleaded that the
balance consideration amount of Rs. 11,50,000/- was to be paid
by 04.04.2020 at the time of execution of the sale deed. Several
legal notices dated 11.02.2020, 03.03.2020, 29.06.2020 and
14.08.2020 were issued by the plaintiff calling upon the
defendant to execute the sale deed, but the defendant failed to
perform her part of the contract and instead sent a reply denying
the agreement.
3. The record reveals that despite service of
summons through ordinary process, registered post as well as
publication, the defendant failed to appear before the trial court
and accordingly the suit proceeded ex-parte vide order dated
25.04.2022.
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4. In support of his case, the Plaintiff examined
himself as PW-1, Satyendra Kumar as PW-2 and Bachacha
Yadav as PW-3. The plaintiff also brought on record the
following exhibits i.e. (i) Ext.-1 — Original unregistered
agreement to sale dated 04.08.2019 and (ii) Ext.-2 to Ext.-2/B
— endorsements on the back side of Ext.-1 showing
acknowledgment of receipt of money by the defendant along
with her signature/L.T.I.
5. The learned Trial court, however, dismissed the
suit primarily on the ground that the agreement to sale dated
04.08.2019 was allegedly not signed by both the parties and,
therefore, according to the learned court below, the intention of
the parties to execute a concluded and enforceable agreement
was not proved. The learned trial court proceeded on the
reasoning that a valid agreement to sale must necessarily be
signed by both parties, properly witnessed and formally
executed in a particular manner in order to become legally
enforceable. On such reasoning, the learned court below held
that in absence of signatures of both parties upon the agreement,
the essential ingredients of a valid contract were not fulfilled
and consequently the plaintiff was not entitled to a decree for
specific performance. The learned trial court thus observed that
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since the plaintiff had not signed the agreement at the specified
place in the document, the contract itself could not be treated as
legally enforceable and the intention of the parties to enter into a
binding agreement remained unproved.
6. Heard learned counsel for the appellant and learned
counsel for the respondent. .
7.Learned counsel appearing on behalf of the appellant
submits that the entire approach adopted by the learned trial
court is contrary to settled principles of law and that the
impugned judgment suffers from serious procedural and legal
infirmities. It is contended that the learned trial court failed to
frame proper issues and improperly made out a third case in the
absence of defendant, thereby vitiating the trial. It is further
submitted that finding of the learned Trial Court that the
agreement dated 04.08.2019 was unenforceable for want of
signatures of both parties is contrary to settled law, particularly,
when the defendant/vendor had admittedly put her
signatures/L.T.I. on Ext.-2 to Ext.-2/B acknowledging receipt of
Rs.3,50,000/- towards part consideration.
8 . Learned counsel for the appellant further submits
that such endorsements clearly establish execution of the
agreement and intention of the parties. It is also submitted that
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the plaintiff continuously remained ready and willing to perform
his part of the contract and repeatedly approached the defendant
for execution of the sale deed but was deliberately denied,
compelling institution of the suit. Hence, the impugned
judgment is stated to be perverse, contrary to record and liable
to be set aside.
9 . It has been further contended by learned counsel
fort the appellant that under the law, an agreement to sale
signed by the vendor alone and accepted by the purchaser
constitutes a valid and enforceable contract. Reliance has been
placed upon the judgment of the Hon’ble Supreme Court in the
case of Aloka Bose v. Parmatma Devi, reported in 2009 (2) SCC
582, wherein it has been held that an agreement of sale signed
only by the vendor and delivered to the purchaser is enforceable
at the instance of the purchaser. An agreement to sell does not
require compulsory signatures of both parties and that even
where the agreement is signed only by the vendor and delivered
to the purchaser, who accepts the same and acts upon it, the
contract remains valid and specifically enforceable.
10 . Learned counsel for the appellant further
submits that the appellant/plaintiff was always ready and willing
to perform his part of the contract by paying the balance
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consideration amount of Rs. 11,50,000/- and for the said
purpose repeated legal notices dated 11.02.2020, 03.03.2020,
29.06.2020 and 14.08.2020 were issued calling upon the
respondent/defendant to execute the sale deed. It is submitted
that despite such evidence on record, the learned trial court
recorded a wholly erroneous and perverse finding that the
agreement dated 04.08.2019 was not enforceable merely
because it was allegedly “not signed by both the parties”
ignoring the settled position of law that an agreement to sale
signed by the vendor alone and accepted by the purchaser
constitutes a valid and enforceable contract.
11. Learned counsel appearing on behalf of the
Respondent submits that the present suit having proceeded ex-
parte before the learned trial court. The plaintiff was under a
strict legal obligation to independently establish all foundational
facts necessary for grant of a decree for specific performance. It
has been contended that the legal notices relied upon by the
plaintiff for establishing continuous readiness and willingness
were neither formally exhibited nor proved in accordance with
the provisions of the Evidence Act and, therefore, the same
could not legally be relied upon for recording satisfaction under
Section 16(c) of the Specific Relief Act, 1963.
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12. Having heard learned counsel for the parties
and on perusal of the Lower Court Records as also the
judgment, this Court finds that the points for Determination in
this case is whether the judgment and decree passed by learned
Trial Court is just, proper and in accordance with law or whether
the same require interference by this Court .
13. At this stage, it would be apposite to first
consider the relevant statutory provisions governing the issue
which are as under:
Indian Contract Act, 1872
Section 2(e) defines an “agreement” as every
promise and every set of promises forming
consideration for each other .
Section 2(h) provides that an agreement
enforceable by law is a 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
lawful consideration and with lawful object, and
are not hereby expressly declared to be void.
Nothing herein contained shall affect any law in
force in India and not hereby expressly repealed by
which any contract is required to be made in
writing or in the presence of witnesses, or any law
relating to the registration of documents.
Specific Relief Act, 1963
Section 16. Personal bars to relief.- S pecific
performance of a contract cannot be enforced in
favour of a person—
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[(a) who has obtained substituted performance of
contract under section 20; or
(b) who has become incapable of performing, or
violates any essential term of, the contract that on
his part remains to be performed, or acts in fraud
of the contract, or wilfully acts at variance with, or
in subversion of, the relation intended to be
established by the contract; or
(c) [who fails to prove] that he has performed or
has always been ready and willing to perform the
essential terms of the contract which are to be
performed by him, other than terms the
performance of which has been prevented or
waived by the defendant.
Explanation.—For the purposes of clause (c),—
(i) where a contract involves the payment of money,
it is not essential for the plaintiff to actually tender
to the defendant or to deposit in court any money
except when so directed by the court;
(ii) the plaintiff [must prove] performance of, or
readiness and willingness to perform, the contract
according to its true construction.
14. Section 16(c) of the Specific Relief Act requires
that a plaintiff seeking decree for specific performance must
plead and prove his continuous readiness and willingness to
perform the essential terms of the contract which are required to
be performed by him. The emphasis under the provision is upon
the conduct of the plaintiff and his continuous preparedness to
fulfill his contractual obligations.
15. Applying the aforesaid statutory provisions to the
facts of the present case, this Court finds that Ext.-1 coupled
with Ext.-2 to Ext.-2/B prima facie disclose all essential
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ingredients of a valid agreement within the meaning of Sections
2(e), 2(h) and 10 of the Indian Contract Act. The evidence on
record indicates: (a) a proposal by the defendant/vendor to
transfer the suit property for consideration; (b) acceptance
thereof by the plaintiff/vendee through payment of substantial
earnest and part consideration; (c) acknowledgment of such
payments by the defendant herself through her signatures/L.T.I.
on Ext.-2 to Ext.-2/B; (d) existence of lawful consideration and
(e) a lawful object, namely transfer of immovable property
through execution of sale deed. Once these foundational
ingredients stood prima facie established from the plaintiff’s
evidence, the learned trial court could not have discarded the
agreement merely on the ground that the plaintiff had not signed
at a particular place in the document. The Indian Contract Act
nowhere mandates that an agreement to sell immovable property
must compulsorily bear signatures of both parties in order to
become a valid and enforceable contract.
16. The learned trial court while interpreting the
agreement dated 04.08.2019 failed to appreciate the distinction
between execution of a contract and mode of proof of
acceptance. In the present case, acceptance by the plaintiff was
not only pleaded but also demonstrated through payment of
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substantial consideration amount pursuant to the agreement
itself, which was acknowledged by the defendant through Ext.-2
to Ext.-2/B. Such conduct of parties clearly constitutes
reciprocal promises and mutual consent within the meaning of
Sections 2(e), 2(h) and 10 of the Indian Contract Act.
17. The principal reason assigned by the learned
trial court for dismissing the suit is that the agreement to sell
dated 04.08.2019 was allegedly not signed by both parties and
therefore, the same was not enforceable in law. This Court finds
that such reasoning is directly contrary to the settled principles
of law laid down by the Hon’ble Supreme Court in the case of
Aloka Bose v. Parmatma Devi, reported in (2009) 2 Supreme
Court Cases 582, the Hon’ble Apex Court observed as under
in paragraph Nos. 16, 17 and 18 in order to ascertain that
neither the Transfer of Property Act nor the Indian Contract Act
requires an agreement to sell to be compulsorily signed by both
parties in order to become valid and enforceable under
extensively considered the legal requirements of an agreement
to sell of immovable property:
“16. On the other hand, the observation in S.M.
Gopal Chetty 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
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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.
17. ‘Section 10 of the Act provides that 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’.
18. 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
recognised 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”.
18. Further the ratio laid down in the case of Aloka
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Bose v. Parmatma Devi (Supra) squarely applies to the facts of
the present case. Here, Ext.-1 admittedly bears execution on
behalf of the vendor/defendant and Ext.-2 to Ext.-2/B contain
the signatures/L.T.I. of the defendant acknowledging receipt of
substantial consideration amount from the plaintiff. The conduct
of the plaintiff in paying earnest money and further
consideration amount pursuant to the agreement clearly
establishes acceptance of the contract on his part.
19. The learned trial court, however, completely
overlooked the aforesaid settled legal position and proceeded on
an erroneous assumption that absence of signatures of both
parties rendered the agreement itself unenforceable. Such
interpretation is contrary not only to the law declared in Aloka
Bose v. Parmatma Devi (supra) but also contrary to Sections
2(e), 2(h) and 10 of the Indian Contract Act, 1872.
20. In the present case, the plaintiff specifically
pleaded in the plaint as well as in evidence that he was always
ready and willing to pay the balance consideration amount of
Rs. 11,50,000/- and get the sale deed executed in accordance
with the agreement dated 04.08.2019. The plaintiff also relied
upon repeated legal notices dated 11.02.2020, 03.03.2020,
29.06.2020 and 14.08.2020 allegedly issued to the defendant
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calling upon her to execute the sale deed.
21. The learned trial court, however, instead of
examining as to whether the plaintiff had satisfied the statutory
requirement under Section 16(c) of the Specific Relief Act,
dismissed the suit solely on the technical ground that the
agreement allegedly lacked signatures of both parties. The
learned court below failed to appreciate that in a suit for specific
performance, the principal consideration is whether there
existed a lawful and enforceable agreement and whether the
plaintiff continuously remained ready and willing to perform his
part of the contract.
22. The requirement under Section 16(c) of the
Specific Relief Act does not mandate a registered agreement to
sale nor does it require signatures of both parties as an
indispensable condition precedent for maintainability of the suit.
What is required to be examined is the existence of a valid
contract coupled with continuous readiness and willingness of
the plaintiff to perform his reciprocal obligations.
23. In the facts of the present case, once Ext.-1 and
Ext.-2 to Ext.-2/B prima facie disclosed execution of the
agreement and acceptance of substantial consideration by the
defendant, the learned trial court was duty-bound to examine the
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issue of readiness and willingness on merits in light of Section
16(c) of the Specific Relief Act instead of non-suiting the
plaintiff merely on an erroneous technical interpretation
regarding signatures on the agreement.
24. This Court further finds that although the suit
proceeded ex - parte , the learned trial court was still required to
adjudicate the plaintiff’s case on the basis of pleadings, oral
evidence and exhibited documents available on the record.
However, while exercising such jurisdiction, the court could not
travel beyond the pleadings nor could it invent a completely
new defence on behalf of the absent defendant. In the present
case, the learned trial court, instead of appreciating whether
Ext.-1 read with Ext.-2 to Ext.-2/B constituted a valid and
enforceable agreement in law, proceeded to non-suit the plaintiff
on a ground not contemplated either under the Indian Contract
Act, 1872 or under the Specific Relief Act, 1963, namely that
the agreement allegedly lacked signatures of both parties. Such
approach amounts to making out a “third case” beyond the
pleadings and evidence available on the record and is
impermissible in law.
25. This Court is further of the considered opinion
that the learned trial court completely misdirected itself by
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concentrating only upon the alleged absence of signatures of
both parties, while on one hand holding that the agreement was
not signed by both parties, it simultaneously ignored the
admitted fact on record that the defendant/vendor had himself
signed the acknowledgment and receipt of part consideration of
Rs. 3,50,000/- on the reverse of Ext. 1 vide Ext.-2 to Ext.-2/B,
instead of examining the real questions arising in the suit,
namely, whether there existed a concluded contract between the
parties, whether the defendant acknowledged receipt of part
consideration through Ext.-2 to Ext.-2/B and whether the
plaintiff continuously remained ready and willing to perform his
part of the contract within the meaning of Section 16(c) of the
Specific Relief Act, 1963.
26. The learned Trial Court also failed to appreciate
that in a suit for specific performance, the Court is primarily
required to examine the existence of a valid and enforceable
contract and the continuous readiness and willingness of the
plaintiff to perform his reciprocal obligations. Mere absence of
signatures of both parties or non-registration of the agreement
by itself cannot render the agreement unenforceable when
execution, acceptance and payment of substantial consideration
are otherwise prima facie established from the evidence
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available on the record.
27.Consequently, this Court finds that the
impugned judgment and decree dated 13.10.2022 suffer from
patent illegality, non-application of mind and erroneous
interpretation of Sections 2(e), 2(h) and 10 of the Indian
Contract Act, 1872 as well as Section 16(c) of the Specific
Relief Act, 1963 and therefore, cannot be sustained in the eye of
law.
28. Accordingly, the appeal is allowed. The
judgment and decree dated 13.10.2022 passed by the learned
Sub-Judge-I, Sub Divisional Court Danapur, Patna in Title Suit
No. 165 of 2020 is hereby set aside and the matter is remanded
back to the Trial court for fresh adjudication on merits in
accordance with law as early as possible after affording
reasonable opportunity to the parties to adduce evidence and
contest the matter. The parties are also directed to appear before
the Court below and cooperate in early disposal of the case.
There shall be no order as to costs.
(Rudra Prakash Mishra, J)
Pankaj/-
AFR/NAFR NAFR
CAV DATE 12.05.2026
Uploading Date 10.07.2026
Transmission Date