In Regular Second Appeal No. 5225 of 2014 (O&M)-PUNJ HC- Agreement to sell is not required to be attested by two attesting witnesses: Punjab & Haryana HC Justice Anil Kshetarpal [20-04-2022]

Read Order: Gurmail Singh v. Sukhdev Singh

Monika Rahar

Chandigarh, April 27, 2022: The Punjab and Haryana High Court has recently held that an ‘agreement to sell’ shall be required to be proved like any other written instrument in accordance with the Section 72 of the Indian Evidence Act, 1872 which does not require that the attesting witnesses be examined. 

Further, the Bench of Justice Anil Kshetarpal, opined that a Court is not justified in ignoring the written contract between the parties, which is duly signed or thumb marked by them on insignificant inconsistencies in the oral evidence.

While assailing the concurrent findings of fact, arrived at by both the Courts below, the plaintiff filed the present appeal. Both the Courts below dismissed his suit for grant of decree for specific performance of the agreement to sell.

In this case, the plaintiff filed the present suit in 2007 for the specific performance of the agreement to sell dated January 28, 1992 with respect to a plot for a sum of ₹12,000/- on receipt of the entire sale consideration on delivery of possession. The plaintiff, in the alternative, prayed for recovery of the amount along with interest and also prayed for the grant of decree of permanent injunction restraining the defendant from interfering in his peaceful possession. He further asserted that despite a notice in May of 2007, the defendant did not forward to perform his part of the contract. 

The defendant contested the suit while asserting that he never entered into any agreement to sell with the plaintiff on receipt of the amount alleged. He took a stand that the alleged agreement to sell was forged, fictitious, without consideration and was a result of fraud. He further took a stand that he never negotiated with regard to the alienation of the property in favour of Pandit Mohan Lal son of Sh. Shyam Lal, resident of village Bhumsi, Tehsil Malerkotla. 

The plaintiff filed replication and reiterated his stand in the plaint. 

Both the Courts below dismissed the suit, on the grounds that the witness who testified for the plaintiff stated that the defendant signed the agreement to sell, whereas it was thumb marked, therefore, his presence, at the time of agreement to sell, was not proved. It was also held that the deposition of one attesting witness was necessary, since the presence of Surjit Singh (the witness produced) was doubtful, therefore, the agreement to sell was not proved. 

Aslo, in the impugned decisions it was held that Surjit Singh stated that the plaintiff had executed the agreement to sell and not the defendant, therefore, his deposition could not be relied upon, and that Subhash Chander Jain, Scribe of the document, did not know the parties personally, therefore, he did not identify the parties. Also, noted was the fact that the plaintiff admitted that the writing was for a money transaction, therefore, there was no agreement to sell and that the suit suffered from delay and laches as the suit was filed after a period of 12 years. 

Additionally, the lower courts observed that the plaintiff claimed that he requested the defendant many times in the presence of Gurbachan Singh, Sarpanch, but he did not  examine and he further stated that the agreement to sell was registered with the Tehsildar, which was  factually incorrect. Lastly, it was observed that the plaintiff stated that the agreement to sell was computer typed, whereas it was typed on a manual typewriter.

Before the High Court, the following question arose, namely whether the agreement to sell is required to be mandatorily attested by the two attesting witnesses mandatorily and proved in accordance with Section 68 of the Indian Evidence Act, 1872 (“the 1872 Act”) i.e. like a Will, gift deed or mortgage deed; whether a written agreement to sell, duly signed/thumb marked by the parties, can be ignored on the ground that it is surrounded by the suspicious circumstances for which no foundation is laid in the pleadings, and whether the insignificant inconsistency in the oral evidence is sufficient to discard the written agreement entered into between the parties, duly signed and thumb marked by them? 

On the first question, the Court opined, while considering Section 54 of the Transfer of Property Act, 1882 provides that a contract for sale of the property shall take place on the terms settled between the parties, that it does not, of itself, create any interest in or charge on such property. Thus, the Court held that it is evident that the agreement to sell is not required to be attested by two attesting witnesses.

Further, the Court observed that the concept of requirement of the mandatory attestation of the document by two attesting witnesses is with respect to only a few documents, namely, a Will (attestation required under Section 63 of the Indian Succession Act, 1925);  a mortgage deed, and a written gift deed (under Section 123 of the Indian Succession Act). 

“The applicability of Section 68 of the 1872 Act is dependent upon the requirement that the particular instrument is required to be attested by at least two attesting witnesses or not, failing which Section 68 and 69 of the 1872 Act lose their application”, added the Bench. 

In light of the above, the Court held that an agreement to sell shall be required to be proved like any other written instrument in accordance with the Section 72 of the 1872 Act, which does not require that the attesting witnesses to be examined. 

Moving on to the second issue, the Court observed at the very outset that in a case where there is a written contract between the parties, which is duly signed or thumb marked by them, the Court should hesitate in ignoring the same, unless a cogent and definite evidence has come on the record to prove that it is surrounded by the suspicious circumstances. 

For proving such suspicious circumstances, the Court added that the parties alleging the same are required to lay a foundation in its pleadings and that in the absence thereof, the Court is not justified in ignoring the written contract between the parties, which is duly signed or thumb marked by them on insignificant inconsistencies in the oral evidence.

“Once a document is in writing, the Court should prefer the documentary evidence in place of oral evidence, unless there are circumstances which lead the Court to some other conclusion”, asserted Justice Kshetarpal.

Lastly, after considering the observations of the Lower Courts (mentioned above) at length, the Court opined that both the Courts erred in dismissing the suit while refusing to grant the relief of specific performance of the agreement to sell. 

Hence, the present appeal was allowed. The judgments passed by both the Courts below were set aside. 

The suit filed by the plaintiff for specific performance of the agreement to sell was decreed with costs, and the plaintiff was held entitled to get the sale deed executed by filing an application before the Executing Court. 

The defendant was directed to execute the sale deed within a period of two months, from the date of filing of an execution application, failing which the Executing Court was ordered to get the sale deed executed on behalf of the defendant.