Supreme Court of India
H. SIDDIQUI (DEAD) BY LRS.versusA. RAMALINGAM
- Citation
- 2011 INSC 185
- Decided
- 4 March 2011
- Disposal
- Disposed off
Holding
A photocopy of a power of attorney without proper foundational proof is inadmissible, and the appellate court must independently evaluate evidence under Order XLI Rule 31, leading to the remand of the case for fresh adjudication.
Summary
The appellant filed a suit for specific performance of a registered agreement to sell a one‑third share of a property, alleging that the respondent’s brother, acting under a power of attorney, had entered into the sale. The respondent denied ever executing a power of attorney authorising his brother to alienate the property. The trial court inferred the existence of such a power of attorney from a photocopy shown to the respondent, who admitted his signature, and decreed specific performance. The High Court set aside that decree. The Supreme Court held that a photocopy of a document, without proper foundation under Section 65 of the Evidence Act, is inadmissible as secondary evidence and that mere admission of a signature does not prove the contents. It also emphasized that an appellate court must independently assess evidence per Order XLI Rule 31 of the CPC. Consequently, the Supreme Court set aside the High Court’s judgment and remitted the matter to the High Court for fresh determination, noting the relevance of a liquidated‑damages clause in the agreement.
Issues considered
- Whether a photocopy of a power of attorney, with the respondent’s admission of his signature, is sufficient proof of the document’s contents under Sections 65 and 66 of the Evidence Act, 1872.
- Whether the trial court was justified in inferring the existence of a valid power of attorney and granting specific performance.
- Whether the appellate court complied with the procedural requirements of Order XLI Rule 31 of the Code of Civil Procedure, 1908 in reviewing the case.
- Whether the liquidated‑damages clause in the agreement to sell is enforceable when the sale deed is not executed.
- Whether the discrepancy in the consideration amount affects the entitlement to specific performance.
Legislation cited
- Code of Civil Procedure, 1908s. Order XLI Rule 31
- Indian Evidence Act, 1872s. 65, s. 66
Subjects
Specific performancePower of attorneySecondary evidenceEvidence ActCPC Order XLI Rule 31Liquidated damagesEarnest moneyConsiderationAppellate jurisdictionRemand
Judgment
•
[2011) 5 S.C.R. 587
H. SIDDIQUI (DEAD) BY LRS. A
v.
A. RAMALINGAM
(Civil Appeal No. 6956 of 2004)
MARCH 4, 2011
B
[P. SATHASIVAM AND DR. B.S. CHAUHAN, JJ.]
Specific Relief - Appellant filed suit for specific
. performance alleging that the defendant-respondent did not
execute sale deed after his brother, power of attorney holder, C
entered into an agreement for sale with the plaintiff -
Respondent specifically denied execution of power of attorney
in favour of his brother - Trial court decreed the suit holding
that inasmuch as photocopy of the power of attorney was
shown to the respondent in his cross-examination and he had D
admitted his signature, it was evident that the respondent had
authorized his brother to alienate the suit property - High
Court set aside the decree - On appeal, held: Trial court had
proceeded in an unwarranted manner - Respondent merely
admitted his signature on the photocopy of the power of E
attorney and did not admit the contents thereof - More so,
admissibility of a document or contents thereof may not
necessarily lead to drawing any inference unless the contents
thereof have some probative value - Appellant, without being
asked by the respondent, had enhanced the consideration F
amount as agreed in the agreement to sell - Conduct of the
appellant was most improbable - Trial court erred in rejecting
the contention of respondent, that the appellant had changed
the terms of agreement unilaterally, without any explanation
from the appellant - High Court also failed to realise that it
was deciding the First Appeal and that it had to be decided G
strictly in adherence with the provisions contained in Order XL/
Rule 31 of CPC and once the issue of alleged power of
attorney was a/so raised, the Court should not have
587 H
--
588 SUPREME COURT REPORTS [2011] 5 S.C.R.
A proceeded to another issue - More so, none of the courts
below took into consideration the clause contained in the
agreement to sell which provided that in the event of any
default on the part of the vendors in completing the sale, the
appellant could get refund of earnest money with liquidated
s damages for breach .of contract - Both the courts below did
not proceed to adjudicate upon the case strictly in accordance
with law - Matter remitted to High Court for decision afresh.
Evidence Act, 1872 - s. 65 - Secondary evidence relating
C to contents of a document - Admissibility of - Held:
Secondary evidence relating to contents of a document is
inadmissible, until non production of the original is accounted
for, so as to bring it within one or other of the cases provided
for in the section - The secondary evidence must be
D authenticated by foundational evidence that the alleged copy
is in fact a true copy of the original - Mere admission of a
document in evidence does not amo'unt to its proof - The
court has an obligation to decide the question of admissibility
of a document in secondary evidence before making
endorsement thereon. ·
E
Code of Civil Procedure, 1908 - Order XL/, Rule 31 -
Guidelines for the appellate court as to how the court has to
proceed and decide the case - Discussed - Held: It is
mandatory for the appellate court to independently assess the
F evidence of the parties and consider the relevant points which
arise for adjudication and the bearing of the evidence on
those points - Being the final court of fact, the first appellate
court must not record mere general expression of concurrence
with the trial court judgment rather it must give reasons for its
G decision on each point independently to that of the trial court
- Thus, the entire evidence must be considered and
discussed in detail.
The appellant filed suit for specific performance of
H contract against the respondent alleging that the
H. SIDDIQUI (DEAD) BY LRS. v. A. RAMALINGAM 589
defendant-respondent did not. execute sale deed .after his A
. brother, power of attorney holder, entered into. an
agreement for sale with the appellant. The respondent
denied the execution of any power of attorney in favour
of his brother with regard to alienation of the property..
The trial court decreed the suit holding that inasmuch as B
photocopy of the power of attorney was shown to the
respondent in his cross-e)Camination and h.e had
admitted his signature, it was evident that the respondent
had authorized his brother to alienate the suit pr:operty.
Respondent preferred appeal before the High Court. The c
High Court set aside decree of trial court in appeal,
.'
In the instant appeal, the appellant submitted that
,there can be no justification for not giving. effect to the
registered agreement to sell and further that he had paid
a sum of Rs.65,500/-, though the consideration as.per the D
agreement had been only to the extent of Rs.40,000/-~
The respondent, on the other hand, contended that
he. had never executed the power of attorney in favour
of his brother enabling him to transfer the suit property; E
that the power of attorney had never been filed before the
trial court nor had it been proved; that the photocopy of
· the same was shown to the respondent during the time
of his cross-examination wherein he has admitted his
signature thereon only; that the respondent had never F
admitted its contents or genuineness of the same and
therefore, the power of attorney itself had not been
proved in terms of Sections 65 and 66 of the Indian
Evidence Act, 1872 and, thus the question of proceeding
further by the trial court could not arise. The respondent G
further contended that it was not probable that the
. appellant paid a sum of Rs.65,500/- instead of Rs.40,000/
- as consideration fixed in the agreement to sell.
Disposing of the appeal, the Court
H
590 SUPREME COURT REPORTS [2011] 5 S.C.R.
A HELD:1. The provisions of Section 65 of the
Evidence Act, 1872 provide for permitting the parties to
adduce secondary evidence. However, such a course is
subject to a large number of limitations. In a case where
original documents are not produced at any time, nor, any
B factual foundation has been led for giving secondary
evidence, it is not permissible for the court to allow a
party to adduce secondary evidence. Thus, secondary
evidence relating to the contents of a document is
inadmissible, until the non production of the original is
c accounted for, so as to bring it within one or other of the
cases provided for in the section. The secondary
evidence must be authenticated by foundational evidence
that the alleged copy is in fact a true copy of the original.
Mere admission of a document in evidence does not
amount to its proof. Therefore, the documentary evidence
0
is required to be proved in accordance with law. The
court has an obligation to decide the question of
admissibility of a document in secondary evidence before
making endorsement thereon. [Para 1OJ [599-C-F]
E The Roman Catholilc Mission & Anr. v. The State of
Madras & Anr., AIR 1966 SC 1457 = 1966 SCR 283; State
of Rajasthan & Ors. v. Khemraj & Ors., AIR 2000 SC 1759;
Life Insurance Corporation of India & Anr. v. Ram Pal Singh
Bisen, (2010) 4 SCC 491 = 2010 (3) SCR 438 and M.
F Chandra v. M. Thangamuthu & Anr., (2010) 9 SCC 712 =
2010 (11) SCR38 - relied on.
2.1. The trial court decreed the suit observing that as
the parties had deposed that the original power of
G attorney was not in their possession, question of laying
any further factual foundation could not arise. Further, the
Trial Court took note of the fact that the respondent has
specifically denied execution of power of attorney
authorising his brother to alienate the suit property, but
brushed aside the same holding that the photocopy of
H
H. SIDDIQUI (DEAD) BY LRS. v. A. RAMALINGAM 591
the power of attorney was shown to the respondent in A
his cross-examination and he had admitted his signature. ·
The trial court held that thus, it could be inferred that it is
the copy of the power of attorney executed by the
respondent in favour of his brother (second defendant in
the suit) and therefore, there was a specific admission by 8
the respondent having executed such document and so
it was evident that the respondent had authorised the
second defendant to alienate the suit property. [Para 11)
[599-H; 600-A-D]
2.2. The trial court could not proceed in such an C
unwarranted manner for the reason that the respondent
had merely admitted his signature on the photocopy of
the power of attorney and did not admit the contents
thereof. More so, the court should have borne in mind that
admissibility of a document or contents thereof may not D
necessary lead to drawing any inference unless the
contents thereof have some probative value. [Para 12]
[600-D-E]
State of Bihar and Ors. v. Sri Radha Krishna Singh & E
Ors., AIR 1983 SC 684 = 1983 (2) SCR 808 and Madan
Mohan Singh & Ors. v. Rajni Kant & Anr., AIR 2010 SC 2933
=2010 (10) SCR 30 - relied on.
3. The trial court rejected the contention of the
respondent that the appellant/plaintiff had paid more than F
what had been agreed in the agreement to sell, and hence
changed the terms of agreement unilaterally, observing
that in such a fact-situation it cannot be said that the
terms of the agreement had been unilaterally altered by
the appellant/plaintiff. Such a remark/observation could G·
not have been made without any explanation. furnished
by the appellant, as under what circumstances the
appellant-purchaser, without being asked by the
respondent-seller, to enhance the consideration amount
has paid more and it cannot be held to be natural human H
592 SUPREME COURT REPORTS [2011] 5 S.C.R.
A conduct in public and private business. Such conduct of
tile appeliant remains most improbable. (Para 15] (601-E-
G] .
4. The High Court failed to realise that it was deciding
the First Appeal and that it had to be decided strictly.in
8
adherence with the provisions contained in Order XLI
Rule 31 of CPC and once the issue of alleged power of
attorney was also raised as is evident from the point (a)
formulated by the High Court, the Court should not have
proceeded to point (b) without dealing with the relevant
C issues involved in the case, particularly, as to whether the
power of attorney had be.en executed by the respondent
in favour of his brother enabling him to alienate his share
in the property. [Para 17] [602-E-G]
D 5. The provisions of Order XLI, Rule 31 CPC provide
guidelines for the appellate court as to how the court has
to proceed and decide the case. The provisions should
be read in such a way as to require that the various
particulars mentioned therein should be taken into
E consideration. Thus, it must be evident from the judgment
of the appellate court that the court has properly
appreciated the facts/evidence, applied its mind and
decided the case considering the material on record. It
would amount to substantial compliance of the said
F provisions if the appellate court's judgment is· based on
independent assessment of the relevant evidence on all
important aspect of the matter and the findings of the
appellate court are well founded and quite convincing. It
is mandatory for the appellate court to independently
assess the evidence of the parties and consider the
G relevant points which arise for adjudication and the
bearing of the evidence on those points. Being the final
court of fact, the first appellate court must not record mere
general expression of concurrence with the trial court
judgment rather it must give reasons for its decision on
H
H. S~DDIQUI (DEAD) BY LRS. v. A. RAMALINGAM 593
each point independently to that of the trial court. Thus, A·
the entire evidence must ·be .considered and discussed
in detail. Such exe~cise should be done after forml:Jlating
the points for· consideration. in terms of the said
provisions and the court must proceed in adherence to
the requirements of the said statutory. provisions. [Para s
18] [602-H; 603-A-E]
Thakur Sukhpal Singh v. Thakur Kalyan Singh & Anr.,
AIR 1963 SC '146 :: 1963 SCR 733; Gitijanandini Devi &
Ors. v. Bijendra Narain Choudhary, AIR 1967 SC 1124 = ·
1967 SCR 93; G. Ama/orpavam & Ors.·v. R.C. Diocese of C
Madurai & Ors., (2006) 3 SCC 224 = 2006 (2) SCR 899; Shiv
Kumar Sharma v. Santosh Kumari, (2007) 8 SCC 600 = 2007
(10) SCR 17; Gannmani Anasuya & Ors. v. Parvatini
Amarendra Chowdhary & Ors., AIR 2007 SC 2380 = 2007 (7)
SCR 201 and B. V. Nagesh & Anf. v. H. V. Sreenivasa D
Murthy, JT (2010) 10 SCC 551= 2010 (11) SCR 784 - relied
on.
6. More so, none of the courts below had taken into
consideration Clause 11 of the agreement to sell which E
provided that in the event of any default on the part of
the vendors in completing the sale, the earnest money
paid shall be refunded to the purchasers together with a
like amount of Rs.5,000/- (Rupees five thousand only) as
liquidated damages for breach of contract. Thus, in case
F
of non-execution of the sale deed, the appellant could get
the earnest money with damages. [Para 20] [604-D-F]
7. The courts below have not proceeded to
adjudicate upon the case strictly in accordance with law.
In the facts and circumstances of the case, the matter is G
remitted to the High Court and the High Court is
requested to decide the same afresh in accordance with
law. [Paras 22 and 23] [605-B-D]
Chand Rani (Smt.) (dead) by Lrs. v. Kamal Rani H
594 SUPREME COURT REPORTS [2011] 5 S.C.R.
A (Smt.)(dead) by Lrs., AIR 1993 SC 1742; Nirmala Anand v.
=
Advent Corporation (P) Ltd. & Ors., (2002) 8 SCC 146 2002
(2) Suppl. SCR 706; P. D'Souza v. Shondrilo Naidu, (2004)
6 SCC 649 = 2004 (3) ·Sup.pl. SCR 186; Jai Narain
Parasrampuria (dead) & Ors. v. Pushpa Devi Saraf & Ors.,
B (2006) 7 SCC 756 = 2006 (5) Suppl. SCR 325; Pratap
Lakshman Muchandi & Ors. v. Sham/al Uddavadas Wadhwa
=
& Ors., (2008) 12 SCC 67 2008 (1) SCR 854 and Laxman
Tatyaba Kankate & Anr. v. Taramati Harishchandra Dhatrak,
(2010) 7 SCC 717 =2010 (8) SCR 310 - referred to.
c Case Law Reference:
1966 SCR 283 relied on Para10
AIR 2000 SC 1759 relied on Para 10
D 2010 (3) SCR 438 relied on Para 10
I
I 2010 (11) SCR 38 relied on Para 10
1983 (2) SCR 808 relied on Para 13
E 2010 (10) SCR 30 relied on Para 14
1963 SCR 733 relied on Para 18
1967 SCR 93 relied on Para 18
F 2006 (2) SCR 899 relied on Para 18
2007 (10) SCR 17 relied on Para 18
2007 (7) SCR 201 relied on Para 18
G 2010 (11) SCR 784 relied on Para 19
AIR 1993 SC 1742 referred to Para 21
2002 (2) Suppl. SCR 706 referred to Para 21
H
H. SIDDIQUI (DEAD) BY LRS. v. A. RAMALINGAM 595
2004 (3) Suppl. SCR 186 referred to Para 21 A
2006 (5) Suppl. SCR 325 referred to Para 21 ·
2008 (1) SCR 854 referred to Para 21
2010 (8) SCR 310 referred to Para 21
B
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
6956 of 2004.
From the Judgment & Order dated 3.2.2004 of the High
Court of Karnataka at Bangalore, in Regular First Appeal No. c
265 of 1999.
K.K. Mani, Abhishek Krishna, Mayur R. Shah for the
Appellants.
Rajiv Dutta, G. Sivabalamurugan, Anis Mohd, L.K. Pandey D
for the Respondent.
The Judgment of the Court was delivered by
DR. B.S. CHAUHAN, J. 1. This appeal has been preferred
against the judgment and order dated 3.2.2004 passed by the E
High Court of Karnataka at Bangalore in Regular First Appeal
No. 265 of 1999.
2. FACTS:
F
(A) The Appellant who had been inducted as a tenant at
an initial stage filed suit No. 30/1981on1.1.1981 for specific
performance of contract in the City Civil Court, Bangalore
alleging that the power of attorney holder of the respondent
entered into the agreement dated 25.6.1979 to sell the suit
property i.e. 1/3rd share of the respondent in the property being G
No.43, Mission Road, Shanti Nagar, Bangalore-27 to him for
a consideration of Rs.40,000/- by receiving an advance of
Rs.5,000/-.
596 SUPREME COURT REPORTS [2011] 5 S.C.R.
A (B) The said agreement was duly registered and
according to the terms incorporated therein, the sale deed was
to be executed on or before 30.12.1980. The respondent failed
to take necessary steps to act according to the agreement.
Thus, the appellant/plaintiff issued notice to the respondent on
B 5.3.1980 through his lawyer.
(C) The appellant/plaintiff allegedly paid the balance
amount on 15.5.1980. As the time limit for the execution of the
sale deed had expired, and the sale deed was not executed,
C the appellant/plaintiff filed the suit for specific performance.
(D) The respondent denied the execution of any power of
attorney in favour of his brother with regard to alienation of the
property. In fact the power of attorney had been given only for
management of the property and not creating any right to
D transfer the same.
(E) In view of the pleadings, the Trial Court framed issues
and after conclusion of the trial decreed the suit vide judgment
and decree dated 3.11.1998.
E 3. Being aggrieved, the respondent preferred Regular First
Appeal No.. 265 of 1999 before the High Court of Karnataka
which has been allowed by the impugned judgment and decree
dated 3.2.2004. Hence, this appeal.
F 4. Shri K. K. Mani, learned counsel appearing for the
appellant has submitted that as the appellant had proved that
the agreement to sell dated 25.6.1979 was not obtained by the
appellant through any kind of fraud, there was no justification
for the High Court to set aside the judgment and decree of the
G Trial Court for specific performance on the grounds: the property
was situated in Bangalore; the sale consideration was
inadequate; and as a result of a long lapse of time on account
of pendency of the case before the courts there has been a
steep rise in the market value of the property. There can be no
H justification for not giving effect to the registered agreement to
H. SIDDIQUI (DEAD) BY LRS. v. A. RAMALINGAM 597
[DR. B.S. CHAUHAN, J.)
sell. The appellant had paid a sum of Rs.65,500/-, though the A
consideration as per the agr'eement'had been only to· the extent
of Rs.40,000/-. The judgment and order of the High Court is ·
liable to be set aside for the reasons that geographical location
of the property or inadequate consideration and rise/escalation
of price during the pendency of the case in court cannot be the 8
grounds for reversal of the judgment and decree of the.Trial
Court.
5. On the contrary, Shri Rajiv Dutta, learned senior counsel
appearing for :the sole respondent has vehe.11'.'ently opposed .the
appeal contending t.hat the respondent never executeq the C
power of attorney in favour of his brother enabling him· to
min~fer the suit property. Power of attorney had r:iever bee)n
filed before the Trial Court nor had it been _proved. The.
photocopy of the same was shown to the respondent during the
time of his cross-examination wherein he has admitted his D
signature thereon only. The respondent had never admitted its
contents or genuineness of the same. Therefore, the power of
attorney itself had not been proved in terms of Sections 65 and.
66 of the Indian Evidence Act, 1872 (hereinafter called Act
1872) and, thus the question of proceeding further by the Trial E
Court could not arise. More so, it is not probable that the
appellant paid a sum of Rs.65,500/- instead of Rs.40,000/- as
consideration fixed in the agreement to sell. The agreement
dated 25.6.1979 contained clause 11 according to which if the
sale deed was not executed, the earnest money of Rs.5,000/- F
received by alleged power of attorney holder would be refunded
to the purchaser together with the like amount of Rs.5,000/- as
liquidated damage for breach of contract. Thus, at the most,
the appellant was entitled to receive a sum of Rs.10,000/- but
the question of decreeing the suit could not arise. The appellant G
had been a tenant. He never paid any consideration. Earlier
there has been a prior sale of 1/3rd share in the same property
(share of the brother of the respondent) in favour of D. Narendra
and the appellant had filed the suit against him also claiming
that the said part of the !property could have been sold to him.
H
598 SUPREME COURT REPORTS [2011) 5 S.C.R.
A The alleged payment of Rs.65,500/- or Rs.40,000/- as a sale
consideration is nothing but mis-representation by showing
forged receipts prepared by the appellant in collusion with the
son of the alleged power of attorney holder at the time of
litigation with D. Narendra. The appeal lacks merit and is liable
a to be dismissed.
6. We have considered the rival submissions made by
learned counsel for the parties and perused the record.
7. Admittedly, there had been litigation between the
C appellant and other co-sharers when 1/3rd share of the said
property was sold in favour of D. Narendra by the brother of
the respondent. Appellant herein has lost the said case. Before
the Trial Court, the appellant while filing the suit has impleaded
the respondent and his brother, R. Viswanathan, the alleged
D power of attorney holder. In the First Appeal, before the High
Court, both of them had been the parties. However, before this
Court the alleged power of attorney holder, R. Viswanathan, has
not ')een impleaded as respondent for the reasons best known
to the appellant.
E 8. The Trial Court taking into consideration the pleadings
had framed the following issues:-
"1. Whether the defendants prove that the agreement of
sale dated 25.6.1979 was taken by the plaintiff by
F practicing fraud on the II defendant as per the written
statement of 01 and 02?
2. Whether the plaintiff proves payment of amount as
alleged in the plaint?
G 3. To what relief the plaintiff is entitled to.
Additional Issues:
1. Whether the suit is bad for non-joinder of necessary
parties?
H
H. SIDDIQUI (DEAD) BY LRS. v. A. RAMALINGAM 599
[DR. S.S. CHAUHAN, J.]
2. Whether the agreement dated 25.6.1979 is A
unenforceable?"
9. In view of the pleadings, as the respondent has
specifically denied the execution of a power of attorney in favour
of R. Viswanathan, defendant No.2 in the suit (not impleaded
8
herein), the main issue could be as to whether the power of
attorney had been executed by the respondent in favour of R.
Viswanathan enabling him to alienate the suit property and even
if there was such power of attorney whether the same had been
proved in accordance with law.
c
10. Provisions of Section 65 of the Act 1872 provide for
permitting the parties to adduce secondary evidence. However,
such a course is subject to a large number of li.mitations. In a
case where original documents are not produced at any time,
nor, any factual foundation has been led for giving secondary D
evidence, it is not permissible for the court to allow a party to
adduce secondary evidence. Thus, secondary evidence
relating to the contents of a document is inadmissible, until the
non production of the original is accounted for, so as to bring
it within one or other of the cases provided for in the section. . E
The secondary evidence must be authenticated by foundational
evidence that the alleged copy is in fact a true copy of the
original. Mere admission o.f a document in evidence does not
amount to its proof. Therefore, the documentary evidence is
required to be proved in accordance with law. The court has
F
an obligation to decide the question of admissibility of a
document in secondary evidence before making endorsement
thereon. (Vide: The Roman Catholilc Mission & Anr. v. The
State of Madras &Anr., AIR 1966 SC 1457; State of Rajasthan
& Ors. v. Khemraj & Ors., AIR 2000 SC 1759; Life Insurance
Corporation of India & Anr. v. Ram Pal Singh Bisen, (2010) G
4 SCC 491; and M. Chandra v. M. Thangamuthu & Anr.,
(2010) 9 sec 112).
11. The Trial Court decreed the suit observing that as the
parties had deposed that the original power of attorney was not H
600 SUPREME COURT REPORTS [2011] 5 S.C.R.
A in their possession, question of laying any further factual
foundation could not arise. Further, the Trial Court took note of
the fact that the respondent herein has specifically denied
execution of power of attorney authorising his brother R.
Viswanathan to·alienate the suit property, but brushed aside the
B same observing that it was not necessary for the appellant/
plaintiff to call upon the defendant to produce the original power.
of attorney on the ground that the photocopy of the power of
attorney was shown to the respondent herein in his cross-
examination and he had admitted his signature. Thus, it could
C be inferred that it is the copy of the power of attorney executed
by the respondent in favour of his brother (R. Viswanathan,
second defendant in the suit) and therefore, there was a specific
admission by the respondent having executed such document.
So· it was evident that the respondent had authorised the
second defendant to alienate the suit property.
0
12. In our humble opinion; the Trial Court could not proceed
in such an unwarranted manner for the reason that the
respondent had merely admitted his signature on the photocopy
of the power of attorney and did not admit the contents thereof.
E More so, the court should have borne in mind that admissibility
of a document or contents thereof may not necessary lead to
drawing any inference unless the contents thereof have some
probative value.
F 13. In State of Bihar and Ors. v. Sri Radha Krishna Singh
& Ors., AIR 1983 SC 684, this Court considered the is.sue ,in
respect of admissibility of documents or contents thereof and
held as under:
"Admissibility of a document is one thing and its probative
G value quite another - these two aspects cannot be
combined. A document may be admissible and yet may
not carry any conviction and the weight of its probative
value may be nil."
H 14. In Madan Mohan Singh & Ors. v. Rajni Kant & Anr.,
H. SIDDIQU( (DEAD) BY LRS. v. A. RAMALINGAM 601
[DR. B.S. CHAUHAN, J.]
AIR 2010 SC 2933, this Court examined a case as a court of A
fifth instance: The statutory authorities and the High Court has
determined the issues taking into consideration a large number
of documents ineluding electoral rolls and school leaving
certificates and held that such documents were admissible in
evidence. This Court examined the documents and contents B
thereof and reached the conclusion that if the contents of the
said documents are examined making mere arithmetical
exercise it would lead not only to improbabilities and .
impossibilities but also to absurdity. This Court examined the
probative value of the contents of the said documents and came c
to the conclusion that Smt. Shakuntala, second wife of the
father of the contesting parties therein had given birth to the first
child two years prior to her own birth. The second child was born
when s.he was 6 years of age; the third child was born at the
age of 8 years; the fourth child was born at the age of 10 years; D
and she gave birth to the fifth child when shewas 12 years of
age.
Therefore, it is the duty of the court to examine whether
documents produced iri the Court or contents thereof have any
probative value. E
15. The Trial Court rejected the contention of the
respondent that the appellant/plaintiff had paid more than what
had been agreed in the agreement to sell, and hence changed
the terms of agreement unilaterally, observing that in such a F
fact-situation it cannot be said that the terms of the agreement
had been unilaterally altered by the appellant/plaintiff. Such a
remark/observation could not have been made without any
explanation furnished by the appellant, as under what
circumstances the appellant-purchaser, without being asked by G
the respondent-seller, to enhance the consideration amount has
paid more and it cannot be held to be natural human conduct
in public and private business. Such conduct of the appellant
remains most improbable.
16. The High Court while dealing with the First Appeal has H
602 SUPREME COURT REPORTS [2011] 5 S.C.R.
A framed only the following two issues:
"(a) Whether the findings and reasons recorded on issue
Nos. 1 and 2 and Addi. Issue Nos. 1 & 2 by the Trial Court
in holding that defendants have not proved that they have
B not executed agreement of sale in favour of plaintiff and
the same has been obtained by the plaintiff by making use
of power of attorney holder of second defendant which
amounts to fraud and mis-representation warrant
interference with the same by this court in exercise of its
Appellate power and jurisdiction?
c
(b) Whether the Trial Court was right in not exercising its
discretionary power under sub-section (2) of Section 20
while granting judgment and decree for specific
performance in favour of plaintiff if it has not exercised its
D power under the above provisions of the Act, whether, this
Court has to remand the case to the trial court after setting
aside the judgment and decree for the consideration
regarding this aspect of the case?"
E 17. The High Court failed to realise that it was deciding
the First Appeal and that it had to be decided strictly in
adherence with the provisions contained in Order XLI Rule 31
of the Code of Civil Procedure, 1908 (hereinafter called CPC)
and once the issue of alleged power of attorney was also raised
as is evident from the point (a) formulated by the High Court,
F the Court should not have proceeded to point (b) without dealing
with the relevant issues involved in the case, particularly, as to
whether the power of attorney had been executed by the
respondent in favour of his brother enabling him to alienate his
share in the property.
G
Order XU, Rule 31 CPC:
18. The said provisions provide guidelines for the
appellate court as to how the court has to proceed and decide
H the case. The provisions should be read in such a way as to
H. SIDDIQUI (DEAD) BY LRS. v. A. RAMALINGAM 603
[DR. B.S. CHAUHAN, J.]
require that the various particulars mentioned therein should be A
taken into consideration. Thus, it must be evident from the
judgment of the appellate court that the court has properly
appreciated the facts/evidence, applied its mind and decided
the case considering the material on record. It would amount
to substantial compliance of the said provisions if the appellate B
court's judgment is based on the independent assessment of
the relevant evidence on all important aspect of the matter and
the findings of the appellate court are well founded and quite
convincing. It is mandatory for the appellate court to
independently assess the evidence of the parties and consider c
the relevant points which arise for adjudication and the bearing
of the evidence on those points. Being the final court of fact,
the first appellate court must not record mere general
expression of concurrence with the trial court judgment rather
it must give reasons for its decision on each point D
independently to that of the trial court. Thus, the entire evidence
must be considered and discussed in detail. Such exercise
should be done after formulating the points for consideration
in terms of the said provisions"and the court must proceed in
adherence to the requirements of the said statutory provisions.
(Vide: Thakur Sukhpa/ Singh v. Thakur Ka/yan Singh & Anr., E
AIR 1963 SC 146; Girijanandini Devi & Ors. v. Bijendra Narain
Choudhary, AIR 1967 SC 1124; G. Amalorpavam & Ors. v.
R. C. Diocese of Madurai & Ors., (2006) 3 SCC 224; Shiv
Kumar Sharma v. Santosh Kumari, (2007) 8 SCC 600; and
Gannmani Anasuya & Ors. v. Parvatini Amarendra Chowdhary F
& Ors., AIR 2007 SC 2380) .
I 19. In B. V. Nagesh & Anr. v. H. V. Sreenivasa Murthy, JT
(2010) 10 SCC 551, while dealing with the issue, this Court
held as under: G
"The appellate Court has jurisdiction to reverse or affirm
the findings of the trial Court. The first appeal is a valuable
right of the parties and unless restricted by law, the whole
case therein is open for re-hearing both on questions of
H
604. SUPREME COURT REPORTS [2011] 5 S.C.R.
A fact and law. The judgment of the appellate Court must,
therefore, reflect its conscious application of mind and
record findings supported by reasons, on all the issues
arising along with the contentions put- forth and pressed
by the parties for decision of the appellate Court. Sitting
B as a court of appeal, it was the duty of the High Court to
deal with all the issues and the evidence led by the parties ·
before recording its findings. The first appeal is a valuable
right and the parties have a right to be heard both on
questions of law and on facts and the judgment in the first
c appeal must address itself to all the issues of law and fact
and decide it by giving reasons in support of the findings .
. [Vide Santosh Hazari vs. Purushottam Tiwari, (2001) 3
sec 179 and Madhukar and Others vs. Sangram and
Others, (2001) 4 sec 756]"
D 20. More so, none of the courts below had taken into
consideration Clause 11 of the agreement dated 30.6.1979
which reads as under:
"11. In the event of any default on the part of the vendors
E . in' completing the sale the earnest money paid herewith
shall be refunded to the purchasers together with a like.
amount of Rs.5,000/- (Rupees five thousand only) as
liquidated damages for breach of contract."
Thus, in case of non-execution of the sale deed, the
F appellant could get the earnest money with damages.
21. So far as the issues of inadequate consideration and
rise in price are concerned, both the parties have argued the
same at length and placed reliance on a large number of
G judgments of this Court, including: Chand Rani (Smt.) (dead)
by Lrs. v. Kamal Rani (Smt.)(dead) by Lrs., AIR 1993 SC
1742; Nirmala Anand v. Advent Corporation (P) Ltd. & Ors.,
(2002) 8 SCC 146; P. D'Souza v. Shondrilo Naidu, (2004) 6
SCC 649; Jai Narain Parasrampuria (dead) & Ors. v. Pushpa
H. Devi Saraf & Ors., (2006) 7 SCC 756; Pratap Lakshman
H. SIDDIQUI (DEAD) BY LRS. v. A. RAMALINGAM 605
[DR. S.S. CHAUHAN, J.)
Muchandi & Ors. v. Sham/al Uddavadas Wadhwa & Ors., A
(2008) 12 SCC 67; and Laxman Tatyaba Kankate & Anr. v.
Taramati Harishchandra Dhatrak, (2010) 7 SCC 717.
r
·22. In view of the above, as we are of the considered
opinion that the courts below have not proceeded to adjudicate
8
upon the case strictly in accordance with law, we are not inclined
to enter into the issue of inadequate consideration and rise in
price.
However, the judgment impugned cannot be sustained in
the eyes of law. C
23. In the facts and circumstances of the case, we remit
the matter to the High Court setting aside its judgment and
decree (impugned) and request the High Court to decide the
same afresh in accordance with law, as explained hereinabove. D·
As the case has been pending for three long decades·, we
request the High Court to decide it expeditiously. However, it
is clarified that any observation made herein shall not adversely
affect the cause of either parties.
- . .
24. With the above observations, the. appeal stands E
disposed of. There shall be no order. as to costs.
B.B.B. . Appeal disposed of.
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