RADHESHYAM vs BHERU FA 197/20 11/03/24 [ MADHYA PRADESH HIGH COURT ]

Specific Relief Act Sections 20 and 16 (c) Specific performance Agreement to sell Readiness and willingness – Agreement was executed by plaintiff and he filed the suit, but before he could be examined, in the court he expired – His second son entered into witness box as PW-1 – He gave the evidence only on the basis of the contents of the agreement to sell – According to him, he was not present at the time of signing of the agreement or extension of the time – Therefore, his depositions in respect of the agreement to sell or extension of time or socalled refusal by defendant No.1 for execution of the sale deed, are not based on his personal knowledge – He cannot give evidence to establish the readiness and willingness of the purchaser i.e. original the plaintiff.

Relevant Paras:

34. The agreement was executed by plaintiff Radheshyam and he filed the suit,
but before he could be examined, in the court he expired. His second son Pradeep
Mehta entered into witness box as PW-1. He gave the evidence only on the basis of the contents of the agreement to sell. According to him, he was not present at the time of signing of the agreement or extension of the time. Therefore, his depositions in respect of the agreement to sell or extension of time or so-calledrefusal by defendant No.1 for execution of the sale deed, are not based on his personal knowledge. Therefore, he cannot give evidence to establish the readiness and willingness of the purchaser i.e. original the plaintiff. He admitted in para 9 of the cross-examination that Bheru Singh was in need of money, therefore, he agreed to sell the house to the plaintiff and the time was fixed for payment of the
remaining amount of sale consideration and the sale deed was not executed within that agreed time and the time was extended because of death in the family of Bheru Singh. There are certain fact which are in the knowledge of the party which can be proved by him only by entering into witness box especially in facts related to readiness and willingness. A party can appear only as a witness in his personal capacity and whatever knowledge he has about the case he can state on oath, no one can appear as a witness on behalf of the party in the capacity of that party. In
the case of Janki Vashdeo Bhojwani v. Indusind Bank Ltd., reported in (2005) 2 SCC 217:-
“14. Having regard to the directions in the order of remand by which this Court placed the burden of proving on the appellants that they have a share
in the property, it was obligatory on the part of the appellants to have entered the box and discharged the burden. Instead, they allowed Mr Bho-
jwani to represent them and the Tribunal erred in allowing the power-of-at- holder to enter the box and depose instead of the appellants. Thus, the appellants have failed to establish that they have any independent source of income and they had contributed for the purchase of the property
from their own independent income. We accordingly hold that the Tribunal has erred in holding that they have a share and are co-owners of the prop-
erty in question. The finding recorded by the Tribunal in this respect is set aside.
15. Apart from what has been stated, this Court in the case of Vidhyadhar v. Manikrao [(1999) 3 SCC 573] observed at SCC pp. 583-84, para 17 that:
“17. Where a party to the suit does not appear in the witness box and states his own case on oath and does not offer himself to be cross-examined by the
other side, a presumption would arise that the case set up by him is not cor- rect….”
16. In civil dispute the conduct of the parties is material. The appellants have not approached the Court with clean hands. From the conduct of the
parties it is apparent that it was a ploy to salvage the property from sale in the execution of decree.
17. On the question of power of attorney, the High Courts have divergent views. In the case of Shambhu Dutt Shastri v. State of Rajasthan [(1986) 2
WLN 713 (Raj)] it was held that a general power-of-attorney holder can ap pear, plead and act on behalf of the party but he cannot become a witness
on behalf of the party. He can only appear in his own capacity. No one can delegate the power to appear in the witness box on behalf of himself. To
appear in a witness box is altogether a different act. A general power-of-at- holder cannot be allowed to appear as a witness on behalf of the
plaintiff in the capacity of the plaintiff.

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