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First Appeal No. 184 of 1960, decided on 14th May 1963.

Person signing document illiterate‑Onus lies on party relying on document to prove beyond doubt that signature was obtained after document had been properly explained to person signing.

Contract of sale‑Party admitting execution of document but denying payment of consideration‑Onus lies on him to prove non‑payment of Con sideration‑Party admitting signature on document but contending

that being illiterate he had signed document in ignorance of its con tents‑Onus to prove valid execution of document lies on person relying on it.

Mirza Gorgani v. Bhola Mal Nibal Chand A I R 1934 Lah. 293 ref.

Baqar Shah for Appellant.

S. Mazharali for Respondent.

Date of hearing : 1st May 1963.

This regular first appeal is from the judgment of the II Assistant Judge, Hyderabad, in Suit No. 58 of 1960 dated the 9th of September 1960. By this judgment the learned Subordinate Court passed a decree for specific perform ance of the contract or in the alternative for the refund of Rs. 8,000 alleged to have been paid to the Appellant.

2. The dispute between the parties is in respect of 40 acres of land out of 80 in Deb. Hundrwah, Tapa Gadap, Taluka Thatta, District Thatta, belonging to the appellant. In the year 1944 the above‑mentioned unsurveyed land was granted to the appellant on the payment of Rs. 12,000 by the Government of Sind. It is alleged that on the 20th of October 1956, the appellant agreed to sell to the respondent the above‑mentioned 40 acres of land for the price of Rs. 8,500. According to the agreement of sale, Rs. 8,000 were paid to the appellant at the time of the execution of the agreement and the balance of Rs. 500 was to be paid after obtaining the sanction for sale from the Revenue Authorities concerned and on the registration of the sale‑deed. The respondent, on the breach of the contract, brought Suit No. 248 of 1959 in the Court of the First Class Sub‑Judge, Hyderabad, for specific performance of the contract or in the alternative for the refund of the amount paid by him, and further claimed a sum of Rs. 1,500 as damages.

3. The appellant resisted the suit. He pleaded that he had neither agreed to sell the land to the respondent nor had he received the sum of Rs. 8,000 from the respondent as alleged in the plaint nor had he entered into any agreement with him. He further submitted that he had a dispute with the Government regarding the disputed land and the Government had since cancelled the grant or transfer thereof to him. He had been making numerous representations to Government in this behalf with a view to settling his claim. The respondent, who was then a very senior officer of the Revenue Department, belonging to the cadre of Collectors and was known to him, agreed to guide him in getting back the land. In this connection he was often consulted, and once he brought to the residence of the appellant at Karachi a stamped paper with type‑written material thereon and represented to him that the same related to and was a representation to Government in connection with the land and asked him to sign the same. The appellant alleged that the contents of this document were neither read over to him nor explained to him. Being an illiterate person and having full faith and confidence in the respondent, he relied on his words and signed the document in the presence of one Ahmed Khan. The appellant contended that the alleged agreement of sale is not binding on him as his signature on it was obtained by misrepresentation.

4. On the pleadings of the parties, the learned Subrdinate Judge struck as many as 8 issues. It is not necessary to reproduce all the issues heard in the suit. The suit was eventually transferred to the Court of the II Assistant Judge, Hyderabad, who disposed it of by judgment dated the 9th of September 1960. Issues Nos. 5, 6 and 7 are important for the decision of the appeal and are reproduced below

(5) Whether the defendant agreed to sell the suit land to the plaintiff and received Rs. 8,000 from him and entered into an agreement with him to apply for sanction to sell the suit land and then received the balance of Rs. 500 and transfer the ownership of the said land to him by a registered sale‑deed

(6) Whether the said agreement is binding on the defendant, if so, what is the effect

(7) Whether the plaintiff obtained the signature of the defendant on the alleged agreement dated 20‑10‑56, by falsely representing it to be a representation to Government, in connection with disputes relating to the land of the plaintiff

The learned Subordinate Court held that the appellant executed the agreement of sale dated the 20th of October 1956, and received Rs. 8,000 from the respondent on the condition that he would apply for sanction to sell the land in dispute to the Revenue Authorities and receive the balance of Rs. 500 and transfer the ownership of the property in dispute by a registered sale‑deed. The learned Subordinate Court further held that the appellant failed to establish fraud and committed a breach of the contract. On these findings a decree for specific performance of the contract or in the alternative for the refund of Rs. 8,000 was passed against the appellant. The claim for damages was rejected. The appellant has come in this appeal and challenges the above‑mentioned finding.

5. Mr. Baqar Shah, the learned counsel for the appellant, has urged before us that the learned Subordinate Court, on the evidence produced on the record, was not justified in coming to the conclusion that the appellant executed the agreement (Exh. 19) or received Rs. 8,000 in respect of the property in dispute. The learned counsel further contended that in the circumstances proved on the record it was abundantly clear that the respondent's evidence about the execution of the agreement and payment of Rs. 8,000 was most unreliable and could not be the basis of a decree passed against the appellant.

6. In order to appreciate the argument of the learned counsel for the appellant, it would be convenient at this stage to mention that the respondent in support of his case examined himself as P. W. 1 and one Paunamal as P. W. 2. On the other hand, the appellant, in support of his case, examined himself as D. W. 1. He further examined two witnesses, namely, D. W. 2 Abdus Sattar alias Babu and D. W. 3 Ahmed Khan, an attesting witness of Exh. 19.

7. The evidence of the respondent shows that the appellant was his old acquaintance and he helped him in getting the land in dispute from the Government when he was posted as Deputy Collector, Thatta, during the year 1943‑44. It further appears from his evidence that he has been helping the appellant in his trouble with the Government about the grant of the land in dispute. The respondent admitted in his deposition that the land in dispute was within his jurisdiction in the year 1943‑44 and in cases of the grant of land, the matters were referred to the Deputy Collector for remarks and report. According to him, one day before the agreement in question was executed, he brought the amount of Rs. 8,000 from Hyderabad to Karachi and stayed in the upper storey of the house of the appellant. His case is that the appellant agreed to sell the land in dispute for a consideration of Rs. 8,500. 'I be agreement (Exh. 19) was executed at Karachi and be paid Rs. 8,000 to him in the presence of Paunamal, Ahmad Khan and Rahullah Jan. To questions put by the Court, he stated that the parties did not sign the agreement on the . shop of the typist who had written it out ; the consideration was not given at the shop of the typist but on the upper storey of the house of the appellant, where he was staying.

8. P. W. 2 Paunamal supported the respondent. He stated that the agreement was read over and explained to the appellant and then he signed it. In cross‑examination he stated that all the witnesses and the parties had gone in a motor‑car of the appellant to Empress Market side and that a stamp had been purchased by the appellant himself but admitted that it was not purchased in his pri: sence. He further stated that Babu son of Qamar Din was also there. He read out the agreement (Exh. 19) to the appellant and explained it to him. He denied that no amount was paid in his presence, and further denied that he was a false witness. According to him, he came to the appellant at 8 or 9 a.m., on the day when the agreement was executed. He is a resident of Thatta and stayed for the night preceding the day of the execution of the agreement with Hiranand near Khari Baghicho. He further stated that he had come to meet the appellant on this day. He had no work with him but only went to see him.

9. After going through the evidence of the respondent, it is difficult for us to accept his case that the amount of Rs. 8,000 was paid by him to the appellant at the time of the execution of the above‑mentioned agreement. It is also difficult to accept his case that the agreement (Exh. 19) was executed by the appellant after its contents were explained to him. Agreement (Exh. 19) is typed in English ; the appellant is an illiterate person and the onus was on the respondent to establish beyond doubt that the signature of the appellant was obtained on that document after it was properly explained to him. The evidence on this point is most unreliable. Except the statement of the respondent and his witness P. W. 2 Paunamal, there is no other independent evidence in support of the respondent's case on this question. So far as P. W. 2 Paunamal is concerned, his signature on Exh. 19 apparently was not taken at the time when the signatures of the parties or of the attesting witness were obtained. On the type written document only the place for signing by the parties was provided. Space was also provided for signing by the two attesting witnesses. These spaces were signed by the parties and the space provided for the attesting witnesses was signed by D. W. 3 Ahmed Khan and Rahullah Jan. P. W. 2 Paunamal has not signed at the place which was meant for the attesting witnesses. His signature also appears to be in a different ink. P. W. 2 Paunamal admitted in his cross‑examination that Babu son of Qamar Din read over the agreement (Exh. 19) to the appellant and explained its contents to him. Abdus Sattar alias Babu was examined by the appellant as D. W. 2. This witness is the nephew of the appellant and he emphatically denied the suggestion that he had read out Exh. 19 to the appellant before it was executed by him. On the other hand, this witness stated that the appellant had never agreed to sell the suit land to the respondent and had not executed any document to that effect in his presence.

10. The other attesting witness D. W. 3 Ahmed Khan who was examined by the appellant as his witness in the case, stated that the appellant had not signed Exh. 19 in his presence. He stated that he went to the appellant's house after the deed had been signed by the appellant. He was asked by the respondent to sign it and was told that this was the correspondence about the land of the appellant. He further stated that the amount of Rs. 8,000 was never paid in his presence to the appellant. He also stated that P. W. 2 Paunamal was not present when his signature was taken on Exh. 19. It would thus be seen that the only attesting witness who was examined in the case has deposed against the respondent's case. The other attesting witness Rahullah Jan was not examined by any of the parties as a witness.

11. The appellant was also examined on oath and he stated that he neither executed the document in question in favour of the respondent nor did he receive the amount of Rs. 8,000 alleged to have been paid to him at the time when his signature was obtained on Exh. 19. His case is that the respondent was his acquaintance for the last 20 years and had connections with him and his father and used to reside with them at Karachi whenever he visited that place. He further stated that the land in dispute was not surveyed and correspondence was going on with the Government about its survey. In that connection the respondent was helping him and brought an application to him and asked him to sign it. He was an illiterate person and relying on the good relations with the respondent, accepted his word and signed the document in question. He denied that he agreed to sell the land in dispute to the respondent or that he was paid Rs. 8,000 in cash.

12. On the evidence produced by the parties, it is quite clear that the appellant is an illiterate person and there was a heavy burden on the respondent to prove that Exh. 19 was signed by the appellant after it was properly explained to him. The evidence on this point is very shaky. Neither the respondent produced the typist who typed the agreement (Exh. 19) nor did he produce Rahullah Jan or any other independent witness to establish that the document was explained to the appellant at the time when his signature was obtained on it. Moreover, there are other circumstances which go against the case of the respondent. After the execution of the alleged document no steps were taken by the parties for obtaining the sanction of the Government for the sale of the property in dispute. The respondent, in his evidence, stated that a notice was given by him before the filing of the suit but none was produced on the record. In cross‑examination he admitted that there was no proof with him to show that a notice in fact was given to the appellant. Further there is no proof that the respondent brought Rs. 8,000 from Hyderabad and kept it with him and paid it to the appellant next day at the time of the execution of the docu ment. It is further difficult to believe that the respondent would part with the amount of Rs. 8,000 without obtaining a separate receipt from the appellant. Normally in such cases it was expected that the respondent would at least obtain the possession of the property agreed to be sold to him because a substantial portion of the consideration of sale had been paid by him. P. W. 2 Paunamal seems to be a chance witness. He is a resident of Thatta and it is remarkable that he came to visit the place of the appellant at 8 or 9 a.m., when the document was executed and stayed there till the document in question was executed by the parties. We are not prepared to place any reliance on the evidence of this witness. Admittedly he is an acquaintance of the respondent. The respondent purchased land from him in the year 1958, and the suggestion of Mr. Baqar Shah that because he was on intimate connection with the respondent, his signature was obtained later on cannot be ruled out from consideration.

13. It is quite true that ordinarily in cases where a docu ment is admitted to have been signed by a party and the payment of consideration is denied, the onus to prove that the considera tion was not paid or the document was obtained by misrepresenta tion or fraud is on the party who alleges these acts. But in law, in those cases where a party admits his signature but contends that his signature was taken upon a blank paper, such statement is taken as a denial and not execution of the document. In Mirza Gorganf v. Bhola Mal Nibal Chand (A I R 1934 Lah. 293), a Division Bench of the Lahore High Court accepted this view as correct on the, ground that an admission is to be taken as a whole and not piecemeal, and if a party makes a qualified statement, it cannot be used as against him apart from that qualification. In our opinion this principle should be followed more strictly in the cases of pardanashin and illiterate persons. Judging the present case in this light, admittedly the appellant is an illiterate person and not conversant with the English language. The onus to prove the execution of the document lay heavily on the respondent. The oral evidence produced is most unsatisfactory. The respon dent failed to produce any reliable evidence to establish the execution, of the document. In our opinion the learned Sub ordinate Court was not justified in accepting the case of the respondent on this point. He did not take into consideration all the circumstances of the case in appreciating the evidence of the respondent in support of his case. As the respondent failed to prove the execution of the document in question the onus to prove that the consideration was not paid was not on the appellant ; it was on the respondent. On the question of the payment of Rs. 8,000 also there is no satisfactory evidence. In our opinion, from the evidence produced on the record, it is quite clear that the respondent was an old acquaintance of the appellant. He helped him in getting the land in dispute from the Government and there was mutual confidence between the parties. The respondent took advantage of this position and obtained the document in question from the appellant, but the mere obtaining of the document cannot prove that the appellant agreed to sell the land in dispute to him or that he was paid Rs. 8,000 as part payment towards the sale price of the alleged sale. The evidence on the point of the execution of the agreement and the payment of Rs. 8,000 is most unreliable and cannot be accepted against the appellant. In these circumstances the learned Subordinate Court's findings on the above‑mentioned questions are erroneous and cannot be sustained.

14. We would, therefore, set aside the finding of the learned Subordinate Court and hold that the respondent has not established the alleged agreement of sale and was not entitled to a decree for specific performance of contract or for the refund of the amount alleged to have been paid by him.

15. In the result, the appeal is allowed, but in the special circumstances of the case the parties are ordered to bear their own costs.

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