# Mahendra Singh v. Ramesh Singh

- **Citation:** (2021) 2 ILRA 999
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-08-24
- **Case number:** Second Appeal No. 195 of 1993
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mahendra-singh-v-ramesh-singh-46162
- **Pages:** 31

## Headnote

A. Civil Law - Specific Performance of
Contract - Constitution Of India: Article 15
- Reversal of burden of proof (Para 25-50)
- There is no rule that illiterate, ignorant
and rustic men, like illiterate and ignorant
women, would always be entitled to the
protection of the rule about reversal of
burden, when the issue is about their
liability on a solemn document, executed
by them regarding disposition of property
etc. In case of men, it has to be established by
one who seeks benefit of the rule by evidence
alluendi that he is on account of illiteracy,
ignorance and his utter unfamiliarity with the
ways of world put against the nature of the
transaction, entitled to a protection of the rule.
(Para 42)

The
constitutional
guarantee
against
discrimination on ground of sex carries
with in it, an acknowledgment of the fact
that women on account of historical and
social conditions are a special class, in
whose
favour
the
State
may
take
affirmative action by way of reservation
etc. without inviting the vice of hostile
discrimination. This is what Article 15 of
the Constitution postulates. (Para 43, 44)

Therefore,
the
principle
judicially
evolved
regarding reversal of burden on a presumption
regarding a particular class of women in India,
entitling them to a protection of the rule, is no
more than a recognition of the hard historical
and social realities in the country. At the same
time as already said, a man can ask for
protection of the rule regarding reversal of
burden, if he can show by the standard
indicated hereinabove, that he is entitled to
similar protection, as women of the specific
classes are. A man, however, is not entitled
to the protection merely because he is
ignorant
and
illiterate.
Men
in
this
country, howsoever illiterate, have been
at the helm of affairs of the society and
guided it. Men, in fact, by the status flowing
from their sex, have historically and traditionally
formed the mainstream of society and have
managed its affairs. The law, therefore, ascribes
to them an understanding of their actions
generally, irrespective of the fact whether they
are illiterate, ignorant or rustic. It is, thus, a
hard social reality, historically testified
too, that would work to exclude a
presumptive
application
of
the
rule
regarding reversal of burden to illiterate,
ignorant and rustic men, the way it has
been extended to illiterate and ignorant
women. (Para 44)

This is, however, not to say that in a given case,
where
an
ignorant
and
illiterate
man
demonstrates
by
the
totality
of
the
circumstances and the transaction that he has
entered into, his utter disability to understand
the nature of the transaction and the contents
of the document, the Court would not be
entitled to invoke the rule and reverse the
1000 INDIAN LAW REPORTS ALLAHABAD SERIES
burden. It cannot be, however, applied on a
presumption in the same manner as it is done in
the case of pa

## Text

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----------
(2021)02ILR A999
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 24.08.2020

BEFORE

THE HON'BLE J.J. MUNIR, J.

Second Appeal No. 195 of 1993

Mahendra Singh ...Appellant
Versus
Ramesh Singh ...Respondent

Counsel for the Appellant:
Sri S.B. Pandey, Sri Ajay Singh Sengar, Sri
Om Prakash Singh Sikarwar

Counsel for the Respondent:
Sri Lallan Pd. Singh, Sri Lallan Pd. Yadav,
Sri Yashwant Singh

A. Civil Law - Specific Performance of
Contract - Constitution Of India: Article 15
- Reversal of burden of proof (Para 25-50)
- There is no rule that illiterate, ignorant
and rustic men, like illiterate and ignorant
women, would always be entitled to the
protection of the rule about reversal of
burden, when the issue is about their
liability on a solemn document, executed
by them regarding disposition of property
etc. In case of men, it has to be established by
one who seeks benefit of the rule by evidence
alluendi that he is on account of illiteracy,
ignorance and his utter unfamiliarity with the
ways of world put against the nature of the
transaction, entitled to a protection of the rule.
(Para 42)

The
constitutional
guarantee
against
discrimination on ground of sex carries
with in it, an acknowledgment of the fact
that women on account of historical and
social conditions are a special class, in
whose
favour
the
State
may
take
affirmative action by way of reservation
etc. without inviting the vice of hostile
discrimination. This is what Article 15 of
the Constitution postulates. (Para 43, 44)

Therefore,
the
principle
judicially
evolved
regarding reversal of burden on a presumption
regarding a particular class of women in India,
entitling them to a protection of the rule, is no
more than a recognition of the hard historical
and social realities in the country. At the same
time as already said, a man can ask for
protection of the rule regarding reversal of
burden, if he can show by the standard
indicated hereinabove, that he is entitled to
similar protection, as women of the specific
classes are. A man, however, is not entitled
to the protection merely because he is
ignorant
and
illiterate.
Men
in
this
country, howsoever illiterate, have been
at the helm of affairs of the society and
guided it. Men, in fact, by the status flowing
from their sex, have historically and traditionally
formed the mainstream of society and have
managed its affairs. The law, therefore, ascribes
to them an understanding of their actions
generally, irrespective of the fact whether they
are illiterate, ignorant or rustic. It is, thus, a
hard social reality, historically testified
too, that would work to exclude a
presumptive
application
of
the
rule
regarding reversal of burden to illiterate,
ignorant and rustic men, the way it has
been extended to illiterate and ignorant
women. (Para 44)

This is, however, not to say that in a given case,
where
an
ignorant
and
illiterate
man
demonstrates
by
the
totality
of
the
circumstances and the transaction that he has
entered into, his utter disability to understand
the nature of the transaction and the contents
of the document, the Court would not be
entitled to invoke the rule and reverse the
1000 INDIAN LAW REPORTS ALLAHABAD SERIES
burden. It cannot be, however, applied on a
presumption in the same manner as it is done in
the case of pardanashin women and certain
other illiterate and ignorant women. (Para 49)

In the present case, the defendant/appellant
has not led any evidence to show that he is a
man, utterly unconnected with wordily affairs.
He has not said in his evidence anything that
may project him to be a simpleton, leading a
secluded life away from wordly intercourse.
Rather, he has indicated his inclination to do
business, which he also says that he undertook.
He claims that he took a loan in the sum of Rs.
15,000/- from the plaintiff to invest in business.
If those are his circumstances and engagements
in life, it cannot be inferred, on the basis of his
illiteracy alone, that he is entitled to a protection
of the rule about reversal of burden in the
manner that it is applied to pardanashin women
and certain other traditional women, who are
illiterate and ignorant. Accordingly, it is held,
that burden of proof has not been wrongly
shifted upon the defendant (appellant) for the
reasons indicated. (Para 50)

B. The terms of agreement are very
material on the point of determining the
true nature of the transaction. (Para 55) -
the substantial question of law involved here is
whether
the Court could
decree specific
performance where the evidence proved that
the intention of the executor was not to execute
a sale deed, but to furnish security for the loan?

Here, the suit agreement made provision for the
sale deed to be executed within a year of the
said agreement dated 24.06.1989, but the
plaintiff/respondent acted within a few months
as soon as he had garnered the remainder of
funds. A notice to execute the sale deed was
got issued to the defendant/appellant on
17/19.03.1990 and served on 21.03.1990. The
suit was instituted on 31.05.1990. The fact that
of the entire agreed sale consideration of Rs.
50,000/-, a sum of Rs. 45,000/- was paid in
advance, leaving a remainder of Rs. 5000/-,
does not show that the transaction was not
bona fide or one to serve as security for a loan.
Rather,
the
promptness
with
which
the
plaintiff/respondent acted in the matter, shows
that once he had expended all his resources in
paying the substantial part of the sale
consideration, that is to say, a sum of Rs.
45,000/- out of agreed sale consideration of Rs.
50,000/-, he needed breathing time to arrange
the remainder of funds of Rs. 5000/- and more
to
defray
expenses
of
execution
and
registration. He could do so within a period of
few months, and, thereafter, acted with all
promptitude. Moreover, a reading of the terms
of the suit agreement, besides considering the
testimony of parties in the witness box, a case
about the suit agreement, serving as a security
for repayment of the loan, is not even remotely
made out. (Para 55)

The case of the defendant/appellant is about
the character of the suit agreement being not at
all understood by the defendant when he
appended his mark to it. This case cannot
coexist with the suit agreement, serving as a
security. This is so, because the two are not
merely alternate pleas, that can be urged
together, but ones that cannot coexist. Here as
already said, the case about the suit agreement
being there, but intended to serve as a security
for a loan, has not been pleaded by the
defendant and, therefore, not determined by
the Courts below. The present substantial
question of law, therefore, does not at all arise.
(Para 56)

C. Indian Contract Act, 1872 - Section 73 -
Specific Relief Act, 1963 - Section 10,
16(c), 20 - Discretion to grant specific
performance
-
Words
and
Phrases:
'Readiness',
'willingness'
-
The
law
relating to 'readiness' and 'willingness' to
be proved by the plaintiff is well settled.
'Readiness' refers to the financial capacity of the
person obliged to perform his part of the
contract, whereas 'willingness' refers to his
mental state or psychological inclination to
perform it. So far as readiness and willingness
are concerned, there is no substantial question
about it raised before this Court, as such. It only
arises
in
the
context
whether
specific
performance could be granted as a matter of
course, without any consideration by the Court
of evidence, facts and circumstances to exercise
discretion in favour of the plaintiff. (Para 63)

The law requires that a plaintiff in order to
entitle him to the relief of specific
performance must show his bona fides
2 All. Mahendra Singh Vs. Ramesh Singh
1001
throughout, and not just a breach of
contract by the defendant. These bona
fides are to be judged on the parameters
of 'readiness' and 'willingness', and much
more. It is the conduct of the plaintiff on a
wholesome basis, vis-a-vis the contract and his
dealings with the defendant, that is relevant. It
is also relevant that he must come to Court with
clean hands, candidly disclosing his case and
proving it by untainted evidence. (Para 64)

The defendant/appellant has urged it to be
inequitable to enforce specific performance
given the disability of the defendant/appellant,
arising from his illiteracy. This Court has looked
into the evidence and the findings of the two
Courts below. It is of paramount importance to
note that it is proven by the plaintiff's evidence
generally,
and
particularly,
by
the
SubRegistrar's endorsement on the suit agreement
that the defendant received before the SubRegistrar a sum of Rs. 15,000/-, and further,
that he acknowledged that he had received a
sum of Rs. 30,000/- as an advance. This
endorsement by the Sub-Registrar on the suit
agreement has been perused by the Court. It is
available on record in original. It is an
endorsement
dated
24.06.1989.
The
suit
agreement also bears the photograph of the
defendant as well as the plaintiff. There is a
presumption about the genuineness of the SubRegistrar's
endorsement.
Since
the
suit
agreement bears the defendant's photograph, it
is safe to presume that nobody else made this
acknowledgment before the Sub-Registrar. It is,
thus, evident that there is evidence of a highly
dependable character, available on record to
show that the defendant had received a total
sum of Rs. 45,000/- from the plaintiff in terms
of the suit agreement, at the time when this
agreement was executed. The endorsement also
indicates that the defendant/appellant had
signed it after understanding its contents. About
that part also, there is a presumption as to its
correctness. (Para 67)

Once this Court is assured that the Lower
Appellate Court has rightly concluded that the
defendant/appellant has received a sum of Rs.
45,000/-, out of the total sale consideration of
Rs. 50,000/- agreed, the scales for the exercise
of discretion in favour of specific performance
are decisively tipped. The fact that the
defendant has received a sum of Rs. 45,000/-
for one part, excludes any doubt about the
defendant being inequitably dealt with by the
plaintiff/respondent on account of his illiteracy
etc. At the same time, the fact that the
defendant/appellant has received a sum, that
accounts for ninety percent of the sale
consideration, places the plaintiff in a position
where he has done substantial acts in
performance of his part of the contract. Nothing
remains to be done on the plaintiff's part,
except payment of the balance of Rs. 5000/-
and meeting the expenses of execution and
registration of the conveyance. The doing of all
substantial acts in performance of the plaintiff's
part of the contract is a relevant consideration,
under sub-Section (3) of Section 20 of the
Specific Relief Act. (Para 70)

D. There is no straitjacket formula that
governs the exercise of discretion to
grant or refuse specific performance on
account of price escalation. In this case,
what is most pertinent, is that the suit was
instituted promptly and within a year of the
suit agreement. In fact, it was instituted during
time contemplated by the agreement, which
was one year, once the plaintiff/respondent
noticed refusal. This adds to the bona fides
about his claim and strengthens entitlement to
the relief of specific performance that he
seeks. (Para 72)

There
is
nothing
to
show
that
plaintiff/respondent has decisively contributed to
delay in any manner. The price rise, if that be a
factor, during these 27 years that this second
appeal by the defendant has remained pending,
cannot be capitalized upon to sway this Court's
discretion. (Para 74)

Second appeal dismissed.(E-3)

Precedent followed:

1. Laxmi Narain & anr. Vs Smt. Hubraja @ Barki,
1989 (15) All L.R. 800 (Para 27)

2. Byles, J. in Foster Vs Mackinnon, [1869() C.P.
704] (Para 31)

3. Mst. Kharbuja Kuer Vs Jangbahadur Rai &
ors., AIR 1963 SC 1203 (Para 32)
1002 INDIAN LAW REPORTS ALLAHABAD SERIES
4. Paras Nath Rai Vs Tilesar Kunwar, 1965 All.
L.J. 1080 (Para 33)

5. Manohar Lal Vs Rajeshwari Devi & ors., AIR
1977 All 36 (Para 33)

6. Hodges & anr. Vs Delhi and London Bank,
Ltd., (1899-1900) XXVII Indian Appeals 168
(Para 34)

7. Sm. Sonia Parshini Vs Sheikh Moula Baksha,
AIR 1955 Cal 17 (Para 36)

8. Chidambaram Pillai & 3 ors. Vs Muthammal &
anr. (1993) 1 M.L.J. 535 (Para 38)

9. Madhukar Nivrutti Jagtap & ors. Vs Smt.
Pramilabai Chandulal Parandekar & ors., 2019
SCC OnLine SC 1026 (Para 55)

10. Ram Das Vs Jagat Singh (Deceased) Thr.
LRs, (2015) 4 All LJ 46 (Para 57)

11. Aniglase Yohannan Vs Ramlatha & ors.,
(2005) 7 SCC 534 (Para 64)

12. P. D'Souza Vs Shondrilo Naidu, (2004) 6
SCC 649 (Para 71)

Precedent distinguished:

1. Ramaswami Jadaya Gounder (died) & anr. Vs V.T.
Elaiya Pillai & anr., AIR 1972 Mad 336 (Para 48)

2. Tejram Vs Patirambhau, (1997) 9 SCC 634
(Para 54)

3. Omanhene Kwamin Bassayin Vs Omanhene
Bendentu II, AIR 1937 PC 274 (Para 45)

Present appeal has been filed against
judgment and decree dated 31.08.1992,
passed by the 1st Additional District Judge.

(Delivered by Hon'ble J.J. Munir, J.)

1. This is a defendant's second appeal,
arising from a suit for specific performance
of contract.

2. The plaintiff-respondent's suit,
being Original Suit no.319 of 1999, was
tried and decreed by the learned Civil
Judge, Kanpur Dehat vide his judgment and
decree dated 03.02.1991. The plaintiffrespondent appealed to the learned District
Judge, Kanpur Dehat vide Civil Appeal
no.10 of 1992. The said appeal was heard
and allowed with costs by the Ist Additional
District Judge, decreeing the suit for
specific performance of contract, vide his
judgment and decree dated 31.08.1992.

3. Ramesh Singh, the plaintiffrespondent instituted Original Suit no.319 of
1990 in the Court of the learned Civil Judge,
Kanpur
Dehat
on
31.05.1990
against
Mahendra Singh, the defendant-appellant,
seeking specific performance of a registered
agreement to sell dated 24.06.1989, relating
to an unpartitioned half share in agricultural
land, detailed in Schedule क to the plaint.

4. Mahendra Singh, the defendantappellant shall hereinafter be called, ''the
defendant'. Ramesh Singh, the plaintiffrespondent shall hereinafter be referred to as,
''the plaintiff'. The registered agreement to
sell dated 24.06.1986 executed by the
defendant in the plaintiff's favour, shall be
called, ''the suit agreement'. The property,
subject matter of dispute between parties, set
forth in Schedule क to the plaint, bears the
following
description:
half
share
in
agricultural plot no.64, admeasuring 6 bigha
4 biswa and 5 biswansi, with a total annual
revenue of half part of Rs.33.25 paise, situate
at Village Anwan, Tehsil Bhognipur, District
Kanpur Dehat. The defendant is bhumidhar
with transferable rights of the aforesaid half
share in plot along with his brother, Sewa
Ram. The said land is hereinafter referred to
as, ''the suit property'.

5. The plaintiff's case is that the
defendant is bhumidhar with transferable
2 All. Mahendra Singh Vs. Ramesh Singh
1003
rights of the suit property, a right which he
held on 24.06.1989. The plaintiff is a native
of Village Anwan since days of his
ancestors, but has meager agricultural
holding. The plaintiff desired a larger
holding. The defendant, on the other hand,
wished to part with the suit property in
order to invest in business and to meet his
other needs. He disclosed his desire to sell
the suit property to natives of the village, as
also others in the vicinity. The plaintiff and
the defendant entered into negotiations
about working out a deal for the plaintiff to
purchase the suit property. The parties
struck bargain at a price of Rs.50,000/-.

6. In accordance with the aforesaid
settlement of the transaction, the defendant
executed a registered agreement to sell
dated 24.06.1989 in the plaintiff's favour,
covenanting to execute a sale deed,
conveying the suit property to the plaintiff.
Of the agreed sale consideration, the
plaintiff paid to the defendant a sum of
Rs.30,000/- as earnest prior to execution of
the suit agreement. It is averred in the
plaint that at the time of execution of the
suit agreement and its registration, the
plaintiff paid a further sum of Rs.15,000/-
towards the agreed consideration, which
the defendant received before the SubRegistrar.

7. It is the plaintiff's case that in this
manner, the defendant received a total sum
of Rs.45,000/- in cash until execution of the
suit agreement, leaving a residue of
Rs.5000/- to be paid at the time of
execution
and
registration
of
the
covenanted sale deed. The suit agreement
stipulated a period of one year for the
execution of the deed of sale. It is the
plaintiff's further case that a few months
after execution of the suit agreement, he
secured necessary funds to pay the
remainder consideration of Rs.5,000/- and
to defray expenses of execution and
registration of the conveyance. It is
specifically averred in the plaint that the
plaintiff had and still has ready money with
him to pay the balance sale consideration
and expenses for purchase of requisite
stamp papers and defraying expenses of
execution and registration of the sale deed.
The plaintiff in the company of some
respectable men approached the defendant,
requesting him to execute the agreed sale
deed, which he may do after accepting the
balance sale consideration. The plaintiff
conveyed to the defendant that he would
bear all necessary expenses of execution
and registration and to do all this, he is
always ready. The defendant despite being
persuaded by the plaintiff to fulfill his
obligations under the suit agreement
warded off the same.

8. Faced with inaction on the
defendant's part, the plaintiff instructed his
Counsel,
Sri
Ram
Prakash
Saxena,
Advocate, Kanpur Dehat to serve a notice
upon the defendant, calling upon him to
execute a sale deed, in terms of the suit
agreement. A notice dated 17/19.03.1990
was sent by the plaintiff's Counsel to the
defendant by registered post, which the
defendant received on 21.03.1990. The
notice clearly informed the defendant that
the latter may come over to the office of the
Sub-Registrar, Pukhranya on 26.03.1990 at
10 O' clock, where after receipt of the
balance sale consideration, he may execute
the covenanted sale deed in the plaintiff's
favour. It was also indicated in the notice
that the plaintiff would defray all expenses
of execution and registration, and that he
would await the defendant at the appointed
time and venue along with his witnesses.
The defendant, however, did not turn up.
The plaintiff remained present at the Sub-
1004 INDIAN LAW REPORTS ALLAHABAD SERIES
Registrar's office with the balance sale
consideration
and
other
expenses
throughout
(the
day),
awaiting
the
defendant's arrival. As the defendant did
not turn up, the plaintiff made an
application to the Sub-Registrar, reporting
his presence.

9. The plaintiff has averred that post
26.06.1990 also, the plaintiff has with him
the balance sale consideration and is ready
to get the agreed sale deed executed. The
plaintiff has requested the defendant by
word of mouth regularly to fulfill his
obligations under the suit agreement. It is
averred that on 28.05.1990, the defendant,
in the presence of a number of other men,
refused to execute the promised sale deed.
It is on these allegations that the suit was
instituted.

10. The defendant appeared and filed
his written statement dated 09.08.1991 and
contested the suit. He traversed the
plaintiff's case. The defendant has asserted
that he never wished to sell the suit
property and has no need or motive to do
so. He has denied the fact that he ever
entered into negotiations with the plaintiff
about a deal to sell the suit property. It is
also denied that he ever executed the suit
agreement. It is also denied that the
defendant
ever
received
a
sum
of
Rs.30,000/- prior to execution of the suit
agreement. The receipt of Rs.15,000/-
before the Sub-Registrar also, by way of
earnest has been denied by the defendant. It
is a wholesome denial by the defendant
about
his
subscription
to
the
suit
agreement. The other assertions about the
demanded performance have been denied.
It has been asserted that the notice dated
17/19.03.1990 served by the plaintiff
through learned Counsel was answered
through his Counsel vide a reply dated
26.03.1990. To substantiate his stand about
disowning
the
suit
agreement,
the
defendant has pleaded that he borrowed
from the plaintiff a sum of Rs.15,000/-. In
order to secure the loan, the plaintiff asked
the defendant to come over to Pukhranya,
where the necessary paper work was
understood to be done. There, the plaintiff
took the defendant to Sri Ram Prakash
Saxena, Advocate,
who drew
up
a
document that the defendant signed,
understanding it to be one to secure the
plaintiff's money loaned.

11. It is the defendant's further case
that the said document was neither read
over to him by the learned Counsel, or by
anyone in the Sub-Registrar's office. It is
also pleaded by the defendant that if the
plaintiff had in fact paid him a sum of
Rs.30,000/- prior to execution of the suit
agreement, he would have required him to
execute a sale deed on 24.06.1989, which
he did not do. It is also the defendant's case
that on asking the contents of the suit
agreement to be read over to him, he came
to know that witnesses of this execution
were one Ram Shanker, an uncle of the
plaintiff (father's brother) and Sri Ram
Prakash Saxena, the plaintiff's Advocate.
The endorsement of the Sub-Registrar on
the suit agreement has been dubbed as
falsehood. It is pleaded that the SubRegistrar
never
asked
the
defendant
anything when the suit agreement was
presented
for
registration.
Also,
the
defendant claims that the Sub-Registrar
never apprised him about the contents of
the document, or that it was an agreement
to sell.

12. It is specifically pleaded that the
suit agreement has been secured by the
plaintiff in conspiracy with the witnesses
playing
fraud
upon
the
defendant,
2 All. Mahendra Singh Vs. Ramesh Singh
1005
misrepresenting
the
character
of
the
document. The suit agreement was got
signed by the defendant, representing to
him that it was a document to secure the
loan in the sum of Rs.15,000/- paid to him.
It is also pleaded that the defendant is an
illiterate village dweller, who thumb
marked the suit agreement, understanding it
to be security papers for the loan. He never
understood it to be an agreement to sell.

13. The Trial Court, on the pleadings
of parties, framed the following issues
(translated
into
English
from
Hindi
vernacular):

"(1)
Whether
the
disputed
agreement to sell dated 24.06.89 has been
secured by defrauding the defendant?

(2)
Whether
the
disputed
agreement to sell is void and cannot be
specifically
enforced
as
pleaded
in
paragraph 12 of the written statement?

(3)
Whether
the
defendant
negotiated sale of his land with the plaintiff
and settled the transaction for a sum of
Rs.50,000/-?

(4)
Whether
the
defendant
executed any agreement to sell in favour of
the plaintiff on 24.06.1980?

(5) Whether the plaintiff paid the
defendant by way of earnest a sum of
Rs.30,000/- in the parties' village?

(6) Whether the plaintiff ever
approached the defendant with money in
order to secure execution of a sale deed?

(7)
Whether
the
defendant
received from the plaintiff a sum of
Rs.15,000/- by way of earnest in the
presence of Sub-Registrar?

(8) Whether the plaintiff is
entitled to any relief?"

14. The parties led evidence before
the Trial Court.

15. On behalf of the plaintiff, three
witnesses were examined, to wit, the
plaintiff himself as PW-1, Ram Shanker,
PW-2 and Ram Prakash Saxena, PW-3.
Documentary evidence was also led on
behalf of the plaintiff comprising the suit
agreement (Ex. 6Kha), a photostat copy of
the suit agreement (paper no. 7Ga), a copy
of the notice (paper no. 8Ga), registered
postal receipt (paper no.9Ga), postal
acknowledgment
(paper
no.
10Ga),
application dated 26.03.1990 (paper no.
11Ga), a copy of the khatauni (paper
no.12Ga) and a copy of the application
dated 26.09.1990 (paper no. 32Kha).

16. On behalf of the defendant, two
witnesses were examined: Sahendra Singh,
DW-1 and Moti Lal, DW-2. The defendant
in his documentary evidence filed a copy of
the reply notice, numbered as paper
no.32Ga.

17. The Trial Court decided issues
nos.1, 2 and 4 together. It was held that the
suit agreement was got executed by the
plaintiff defrauding the defendant. The
defendant executed the suit agreement,
understanding it to be a document to secure
the loan of Rs.15,000/-, advanced to him by
the plaintiff. It was further held that the suit
agreement was void and could not be
specifically enforced. Thus, issues nos.1
and 2 were answered in the affirmative,
whereas issue no.4 was answered in the
negative. Issues nos.3 and 5 were answered
in the manner that in view of the findings
on issues nos.1, 2 and 4, the plaintiff did
not negotiate any deal about a sale with the
defendant or settled for a sum of
Rs.50,000/-. The defendant entered into the
suit agreement, understanding it to be
security papers relating to the loan of
Rs.15,000/-. Also, the defendant never
received a sum of Rs.30,000/- from the
1006 INDIAN LAW REPORTS ALLAHABAD SERIES
plaintiff, back at the parties' village. Thus,
issue no.3 and 5 were both answered in the
negative and against the plaintiff. Issues
nos.6 and 7 were also decided against the
plaintiff and in favour of the defendant.
With conclusions reached on the basis of
the Court's findings on issues nos.1 to 7,
the Trial Court answered issue no.8 in the
manner that the suit agreement was got
executed by playing fraud on the defendant
and that, therefore, the plaintiff was not
entitled to any relief. The suit was ordered
to be dismissed with costs.

18. The plaintiff appealed the Trial
Court's decree to the learned District Judge,
Kanpur Dehat vide Civil Appeal no.10 of
1992. The appeal aforesaid was instituted
on 03.03.1992. The appeal came up for
determination before the Ist Additional
District Judge on 31.08.1992. The Lower
Appellate
Court,
by
the
impugned
judgment and decree dated 31.08.1992,
allowed the appeal, set aside the judgment
and decree of the Trial Court and decreed
with costs the suit for specific performance.
The defendant was ordered to execute a
sale deed within two months, after
receiving the balance sale consideration.
The decree also carries a direction that in
the event of default by the defendant, the
plaintiff would be entitled to secure
execution of the sale deed through process
of Court, upon deposit of the balance sale
consideration and necessary expenses for
execution and registration of the sale deed
in the Execution Department.

19. Aggrieved, the defendant has
brought this appeal from the appellate
decree.

20. This appeal was admitted to
hearing, vide order dated 16.02.1993, on
questions nos.1, 2, 3, 4, 5 and 6, formulated
in the memorandum of appeal. These
substantial questions of law read thus:

(1) Whether the suit can be
decreed if the plaintiff is (sic has) failed to
prove his own case?

(2) Whether the lower appellate
court can allow the appeal and decreed (sic
decree) the suit without reversing or setting
aside the findings recorded by the trial
court.

(3) Whether the suit can be
decreed by lower appellate court on the
basis of findings which are based on
surmises and conjectures?

(4) Whether the suit can be
decree (sic decreed) by wrong shifting of
burden of prove (sic proof) to (sic the)
appellant?

(5) Whether it was obligatory for
(sic the) court to record the finding
regarding intention for executing the sale
deed?

(6) Whether the court can decree
the suit for specific performance even if the
evidence proved that the intention of the
executor of the document was for executing
the sale deed but for security of the loan?"

21. This Court, by recording reasons
carried in the order dated 05.02.2020,
framed an additional substantial question of
law numbered 7, that reads:

"7. Whether the relief of specific
performance is to be granted, in case of an
immovable matter (sic property) as a matter
of course, without any consideration by the
Court of evidence, facts and circumstances
that may sway its discretion under Section
20 of the Specific Relief Act?"

22. Heard Mr. Vivek Singh along with
Mr. Ajay Singh Sengar, learned Counsel for
the defendant and Mr. Yashwant Singh,
2 All. Mahendra Singh Vs. Ramesh Singh
1007
learned Counsel appearing on behalf of the
plaintiff.

23. Learned Counsel for parties have
addressed this Court in the present appeal
on substantial questions of law nos.4, 6 and
7, and not the others. This Court, too, after
hearing learned Counsel for parties, finds
that substantial questions of law nos.1, 2, 3
and 5 do not arise for consideration in this
appeal.

24. The first substantial question of law
to be considered is whether the suit can be
decreed by a wrong shifting of the burden of
proof upon the defendant. Learned Counsel
for
the
defendant,
in
advancing
his
submissions, says that there is no quarrel
about the fact that the defendant is an
illiterate and rustic villager, who cannot read
or write. He cannot even sign his name. It is
pointed out that the defendant has specifically
pleaded a case in paragraph 14 of the written
statement that the plaintiff, in conspiracy with
the witnesses of the suit agreement, falsely
represented to him the character of the
document as one to secure the loan of
Rs.15,000/- advanced, instead of its true
character and made the defendant thumb
mark it, taking advantage of his illiteracy.
Learned Counsel for the defendant submits
that it is a case where the defendant does not
dispute his thumb mark on the suit
agreement, but denies its contents. He does so
by saying that his mind did not accompany
his mark. According to the learned Counsel
for the defendant, this mistake, on the
defendant's part, was brought about as a result
of a fraudulent representation by the plaintiff
and the witnesses of the suit agreement, about
character of the document.

25. Learned Counsel for the defendant
takes his submission forward by saying that
normally in the case of a plea about the
mind not accompanying the signature, or so
to speak, where the contents are denied but
the signatures admitted, the burden is upon
the person who sets up that plea. But, the
learned Counsel for the defendant is quick
to add that in the case of an illiterate and
rustic villager, who does not know how to
read or write, the burden of proof would lie
on the party, who propounds the document.
In his submission, the burden of proof
would, therefore, rest on the plaintiff to
show
that
the
suit
agreement
was
subscribed to by the defendant after
understanding the nature of the transaction.
Learned Counsel for the defendant urges
that no evidence has been led on behalf of
the plaintiff to demonstrate that the
defendant was made aware of the nature of
the transaction, before he put his mark.

26. To the contrary, Mr. Vivek Singh,
learned Counsel for the defendant submits
that the fact that both witnesses of the suit
agreement are partisan, excludes the
possibility
about
the
nature
of
the
transaction embodied in the document,
being known to the defendant. Learned
Counsel points out that one of the two
witnesses, Ram Shanker is an uncle of the
plaintiffs (father's brother) and the other Sri
Ram Prakash Saxena, is the plaintiff's
Advocate. One of them is partisan by
friendship and the other by his professional
loyalty. Learned Counsel for the defendant
has drawn attention of the Court to the
testimony of the defendant in the dock,
where in his examination-in-chief on
17.11.1991, he has stated: "िब श्री िाम
प्रकाश सक्सेना ने मेिा लनशान अंगुठा यह
कहकि िगवाया लक सादे किे की लिर्खा-पढी
है। िलिस्ट्री दफ्ति में पढकि नहीं सुनाया गया।"

27. It is pointed out that in his crossexamination too, the defendant has stood
1008 INDIAN LAW REPORTS ALLAHABAD SERIES
by his case that he was kept in oblivion
about the character and the contents of the
suit agreement. Learned Counsel for the
defendant submits that on the facts and
evidence, particularly, the fact that the
defendant is an illiterate and rustic villager,
burden of proof lay on the plaintiff to prove
that
the
defendant
entered
into
the
transaction,
embodied
in
the
suit
agreement, after fully understanding its
nature and terms. This burden, according to
the learned Counsel, has been placed in
error on the defendant's shoulders in
accordance with the normal rule applicable
to a plea of ''the signatures being admitted
but the contents denied'. Learned Counsel
submits that the Lower Appellate Court has
committed a manifest error of law in
completely overlooking the defendant's
disability, on account of his abject
illiteracy, that would lead to a reversal of
the burden of proof. In support of his
submission,
learned
Counsel
for
the
defendant has placed reliance upon a
decision of this Court in Laxmi Narain
and another vs. Smt. Hubraja alias
Barki, 1989 (15) All L.R. 800. Learned
Counsel for the defendant has called
attention of the Court to what has been held
by S.H.A. Raja, J. in Laxmi Narain
(supra):

"In Paras Nath Rai v. Tilesar
Kunwar, [1965 Alld. L.J. 1080.] this court
has
indicated
the
law
regarding
the
transaction executed by a Pardanashin lady
or an illiterate ignorant woman, though she
may not be pardanashin, in the following
words:

"Rules regarding transaction by a
Pardanashin lady are equally applicable to an
illiterate and ignorant woman, though she
may not be a Pardanashin. It is not by reason
of the Pardah itself that the law throws its
protection around a Pardanashin lady but by
reason of those disabilities which a life of
seclusion lived by a Pardanashin lady gives
rise to and which are consequently presumed
to exist in the case of such a lady. But the
disabilities which make the protection
necessary may arise from other causes as
well. Old age, infirmity, ignorance, illiteracy,
mental
deficiency
in-experience
and
dependence upon others, may by themselves
create disabilities that may render the
protection equally necessary. If therefore, it is
proved that a woman, although she is not a
paradanashin
lady,
suffers
from
the
disabilities to which a pardanashin lady is
presumed to be subject, the validity and the
binding nature of a deed executed by her
have to be judged in the light of those very
principles which are applied to a deed by a
pardanashin lady where the plaintiff was
illiterate and when she executed the deed in
question she was not only more than sixty
years old, but was also hard of hearing and
she
was
described
by
the
defendant
themselves as a foolish and rustic woman
completely devoid of intelligence and
according to the finding of the lower
appellate court she was correctly described as
such and besides the defendants stood in
relation to her in a position of active
confidence, held--that there could be no
doubt that she was as much entitled to
protection of the law as a pardanashin
lady......"

"It is not necessary to ascertain
whether fraud, misrepresentation or undue
influence has been established when it has
been found that the deed executed by a
pardanashin lady has not been executed by
her voluntarily and after appreciating the
nature and import of the transaction, and
the latter finding alone is sufficient for
holding that the deed is not binding on her
and it conveyed no title."

If it is assumed that the alleged
document was read out and explained to the
2 All. Mahendra Singh Vs. Ramesh Singh
1009
respondent, even then it is not sufficient to
discharge the burden which rests upon the
appellant who claims right under a deed
from aged, illiterate and mentally deficient
lady. The appellants have failed to establish
that the respondent knew what the
consequences of her act were going to be
and how they were to affect her. In this case
it was necessary to establish that it was
explained to the lady that by the execution
of the sale-deed she would have to part
with a part of her property. There is not an
iota of evidence on the record to establish
that any one explained these consequences
to the respondent. There existed no
evidence to establish that the respondent
understood the result of what she was doing
and any independent advice was available
to her at the time of execution of sale deed.
The first appellate Court was fully justified
in allowing the appeal and decreeing the
suit of respondent-plaintiff. No substantial
question of law is involved in this appeal."

28. Mr. Yashwant Singh, learned
Counsel for the plaintiff has refuted the
submissions advanced on behalf of the
defendant. He has urged that the principle
about reversal of burden to sustain a
transaction relating to disposition of
property is confined in its application to
pardanashin women and also to illiterate
and ignorant women, not acquainted with
the ways of the world. He points out that
this principle is not attracted to the case of
men, howsoever illiterate, who are by
traditions of the society, always exposed to
and engaged in worldly business. In short,
learned Counsel for the plaintiff says that
the principle has to be confined in its
application to a particular class of women
alone - pardanashin, or illiterate and
ignorant. It is not at all applicable in case of
men, howsoever rustic, ignorant and
illiterate.

29. This Court has keenly considered
the submissions advanced. At the hearing
of this appeal, this Court asked Mr. Vivek
Singh to show any authority, where this
principle, relating to reversal of burden
regarding validity of a transaction entered
into by women of a certain class
distinguished by their disabilities, has also
been extended to men with similar
disability. Mr. Vivek Singh very fairly
accepted before this Court that he could not
lay his hands on any authority, where the
principle has been extended to men with
disability similar to illiterate and ignorant
women. Nevertheless, Mr. Vivek Singh said
that the principle ought to be extended to
illiterate, ignorant and rustic men, who are
not in any way better placed than a woman
similarly circumstanced. He urged that nonextension of the principle about reversal of
burden,
that
is
designed
to
protect
pardanashin women as well as illiterate
and ignorant women, to rustic and illiterate
men would indeed be an application of the
principle that discriminates on the ground
of sex alone.

30. Learned Counsel for the defendant
has argued that though the principle
judicially evolved, like judicial orders,
cannot be subjected to judicial review by
invoking the writ jurisdiction, under Article
226 or Article 32, but the creed of Article
15 binds all Courts while laying down
principles of law governing rights of
parties. He submits that legal principles
cannot be applied in a manner that they
work hostile discrimination against a
citizen on the ground of sex alone, though
otherwise similarly circumstanced.

31. It would be profitable first to look
at the principle about a person's solemn
deed, regarding which he/ she says that he/
she
signed,
understanding
it
to
be
1010 INDIAN LAW REPORTS ALLAHABAD SERIES
something else.