Honble Shri Justice A.K. Shrivastava

1. Feeling aggrieved by the judgment and decree dated 15.05.1996 passed by learned 2nd Additional Judge to District Judge, East Nimar, Khandwa in Civil Suit No. 85-A/1995 whereby the suit of specific performance of contract has been decreed, this appeal under Section 96 of CPC has been filed by the appellant/defendant. Shorn of unnecessary detail, the facts of the case lie in a narrow compass. Suffice it to say that a suit for specific performance of contract has been filed by plaintiffs/respondents against the present appellant/defendant on the averments that he (defendant) is having open land, the description whereof has been mentioned in the Schedule attached to the plaint and which is also the part of the plaint. As per the plaint averments the parties entered into an agreement of sale on 1.12.1991 and it was agreed by the defendant to sell the suit land in favour of plaintiffs for a consideration of Rs. 24,000/-and in advance a sum of Rs. 3000/-was paid by the plaintiffs to him. A document of agreement of sale on the same day was also executed mentioning the factum of receipt of Rs. 3000/-as advance. In the same agreement it has been further mentioned that on 1.1.1992 the plaintiffs shall also pay a further sum of Rs. 7,000/-and the balance amount of Rs. 14,000/-shall be paid by them on or before 5.4.1992 and thereafter the land in question mentioned in the schedule to the plaint shall be sold by the defendant by executing a registered sale-deed.

2. It is the further case of the plaintiffs that in terms of the agreement dated 1.12.1991, the plaintiffs came to the residence of defendant on 01.01.1992 with Rs. 7000/-but at that juncture he was going to graze his she-buffaloes and told the plaintiffs that he will obtain Rs. 7000/-in Court where he shall also pass on the receipt. At that juncture, Gyarsilal was also with the plaintiffs. The plaintiffs throughout remained in the Court upto 4.00 p.m. but when the defendant did not come on that day they sent a notice through their Counsel by registered AD post to the defendant stating therein that in terms of the agreement of sale they tried to pay Rs.7000/-and were also present in the Court as directed by the defendant but he did not come and therefore it appears that he is avoiding to perform his part of contract. Thus, by the said notice the defendant was asked to get the sale-deed executed. According to the plaintiffs, a wrong reply of the said notice was sent by the defendant in which it has been stated that the four boundaries mentioned in the document of agreement of sale are not correct and therefore he (defendant) is unable to perform his part of contract by executing the sale-deed. But, according to plaintiffs the said plea which has been taken in reply is not correct.

3. Thereafter before the agreed date i.e. 5.4.1992 on or before which the sale deed was to be executed, when the defendant did not execute the sale-deed another notice dated 10.02.1992 was sent by plaintiffs through their counsel by registered AD post to defendant and further he was asked to get the sale-deed executed. But, again a wrong reply was sent by him stating the same stand which he took in his earlier reply. It has also been pleaded by the plaintiffs that they always remained ready to perform their part of contract but the defendant avoided to get the sale-deed executed. Hence present suit is being filed.

4. The defendant by filing written-statement specifically admitted the factum of execution of agreement of sale on 1.12.1991 for a consideration of Rs.24,000/-and also admitted that he obtained a sum of Rs. 3000/-on that date as advance, but, specifically he has pleaded denying the factum that land in question was agreed to be sold for the simple reason that defendant does not own land, the description whereof has been mentioned in the document of agreement of sale and the land of such a description does exist at the spot and therefore said agreement on account of its uncertainty is null and void. The other averments of plaintiffs that on 1.1.1992 they came alongwith Rs.7000/-at 8.00 a.m. at his residence and at that juncture defendant was going to graze his she-buffaloes and further he asked the plaintiffs to come to Court where he shall obtain Rs. 7000/-and other averments made in para 3 of the plaint have been specifically denied in the written-statement. The averments in regard to readiness and willingness have also been denied by the defendant.

5. In special pleas, the defendant has specifically pleaded that although the factum of execution of document of sale dated 01.12.1991 is admitted to him but he did not agree to mention the four boundaries described in the said document. Specifically defendant has pleaded that on the date of execution of agreement of sale he was disturbed because on that day his valuable she-buffalo was missing, as a result of which, without reading the document of agreement of sale he put his signature under the pressure of plaintiffs because they were insisting to sign it. However, lateron when plaintiffs gave a photocopy of the agreement of sale then only defendant came to know that four boundaries which are mentioned in the document of agreement of sale have been incorrectly described and as per the description of the four boundaries mentioned in the document there exists no open land of defendant. This fact was also disclosed to plaintiffs from time to time and particularly in the written reply sent by him twice against plaintiffs notices. Hence the plaintiffs are not entitled for the relief which they have claimed and prayed that suit be dismissed.

6. Learned Trial Court framed necessary issues and after recording evidence of the parties decreed the suit by passing a decree of specific performance of the contract.

7. In this manner this first appeal has been filed by the defendant assailing the judgment and decree of learned Trial Court.

8. The contention of Shri Avinash Zargar, learned counsel for the appellant/defendant is that it is borne out from the pleadings of the defendant in written-statement as well as in reply to plaintiffs notices Ex.D/1 and D/2 that four boundaries of the land which is to be sold are not correct and since the defendant is not the owner of the disputed land and description of the four boundaries mentioned is uncertain, therefore, the contract (agreement of sale) Exp./1 dated 1.12.1991 is void ab initio in terms of Section 29 of the Indian Contract Act, 1872 (in short "Contract Act"). In support of his contention, learned counsel has placed heavy reliance on the decision of the Supreme Court Vimlesh Kumari Kulshrrestha vs. Sambhajirao and another : : (2008) 5 SCC 58 and Single Bench decision of this Court Abdul Gaffar v. Kouleshiya Bai, 1979(1) MPWN SN 306. By inviting my attention to the Section 14 of the Contract Act it has been put-forth by learned counsel that defendant was disturbed on the date of execution of the document of agreement of sale dated 1.12.1991 since his valuable she-buffalo was missing and under the pressure of plaintiffs he signed the document of agreement of sale having incorrect and uncertain description of the land to be sold and thus the signature which has been obtained by the plaintiffs was not with the free consent of defendant. Learned counsel has also invited my attention to Section 18 of the Contract Act defining the misrepresentation. Thus, it has been prayed that by allowing this appeal, the impugned judgment and decree be set aside and the suit of the plaintiffs be dismissed.

9. Combating the aforesaid submissions, it has been submitted by Shri Kochar learned counsel appearing for respondents/plaintiffs that the description has been properly mentioned in the document of agreement of sale and the same description has been stated in the schedule attached to the plaint. Learned counsel has invited my attention to wordings "or capable of being made certain" and submitted that the testimony of plaintiff No. 1 Mitthulal (PW1) in para 5 is to be read in the contest to these wordings embodied in section 29 of the Contract Act and therefore it cannot be said that the contract is uncertain and hence it is void. Learned counsel has placed reliance upon the illustration (e) to Section 29 of the Evidence Act. He has also placed reliance on Section 91 and 92 of the Evidence Act and submitted that if a term of contract has been embodied in the document, no oral evidence can be given in proof of the terms to that agreement except the document itself. In support of his contention learned counsel has placed reliance on certain decisions of Supreme Court Bai Hira Devi and others vs. Official Assignee of Bombay, : : AIR 1958 SC 448 , R. Janakiraman v. State (2006) 1 SCC 697 , Roop Kumar v. Mohan Thedani, : : AIR 2003 SC 2418 and Mohindra Singh & Another v. State of Haryana : : AIR 1974 SC 873 . Hence, it has been prayed that this appeal be dismissed.

10. Having heard learned counsel for the parties, I am of the view that this appeal deserves to be allowed in part.

11. The factum of execution of agreement of sale dated 01.12.1991 between the parties is not disputed. Indeed the defendant himself is admitting the execution of this document and acceptance of Rs. 3000/-towards advance mentioned in the document. But his plea is that description of the suit property is not correct and therefore the agreement is uncertain and void. It would be condign to quote the description of the land which was to be sold and the four boundaries mentioned in the document of agreement of sale which reads thus;



12. In the present case, the defendant appears to be quite honest and his conduct is quite fair. If this Court goes prior to 3.4.1992 the date when the suit was filed and when the averments made in the pleadings were not there and particularly when this Court travels back to the date 11.02.1992 when the defendant sent his reply (Ex.D/1) to the notice of plaintiffs dated 1.1.1992 (Exp./2) this Court finds that the factum of execution of document has been admitted by the defendant so also receiving the amount of Rs.3000/-in advance and further term of agreement that amount of Rs.7000/-was to be paid on 01.01.1992 but specifically in para 2 of the reply (Ex.D/1) it is gathered that on the date of execution of document of agreement of sale the valuable she-buffalo of defendant was missing and the defendant was disturbed. The plaintiffs on that date brought the typed document of agreement of sale by deliberately mentioning the mis-description of the property and although the defendant stated that today he is little bit disturbed but upon the insistence of plaintiffs he put his signature upon the document of agreement of sale under the pretext and assurance given by the plaintiffs that he would give photocopy of the document and in case there is some defect in the document it will be cured. Upon this assurance, the defendant put his signature. Thereafter lateron when the defendant received the photocopy of the document of agreement of sale he after going through it found that four boundaries mentioned in the document has been incorrectly mentioned and the description of the land which has been mentioned is not of defendant. In a very fair manner it has been stated in para 2 and 3 of the reply (Ex.D/1) that even today he (defendant) is ready to get his land sold to the plaintiffs and despite the defendant asked the plaintiffs to correct the description of the land, he is not ready and is avoiding to correct the four boundaries. Even today the defendant is ready to get his own land sold provided that four boundaries mentioned in the document should be corrected. The same stand has been again taken by him in his another reply dated 05.03.1992 (Ex.D/2) which was sent by him against the notice of plaintiffs dated 10.02.1992 (Exp./3). Thus, as soon as the defendant came to know that the four boundaries and description of land has been incorrectly and mistakenly written in the document of agreement of sale, repeatedly he was insisting the plaintiffs to get it corrected since he wants to sell his own land and not the land which he does not own and possess.

13. It be seen that when the defendant sent two replies Ex.D/1 and D/2, there was no suit. If the defendant would have been dishonest or unfair straightway he could have denied the execution of document of agreement of sale or might have raised some other stand in order to nullify the document of agreement of sale. The aforesaid replies were sent by the defendant through his counsel and therefore certainly upon the legal advice provided to the defendant that if any suit for specific performance of contract is filed, the same will be dismissed because contract is uncertain in regard to subject matter of the property. But, very fairly on 10.02.1992 itself in the reply defendant while admitting the execution of document of agreement of sale as well as factum of receiving advance amount of Rs. 3000/-has stated that he is still ready to sell his own land having correct description mentioned in the document of agreement of sale so that with certainty he could sell the land to the plaintiffs of his own.

14. Even after filing of the suit the same stand has been pleaded by the defendant in his written-statement specifically in the special pleas. The plaintiffs have specified the suit land in verbatim in the schedule to the plaint which has been described in the document of agreement of sale Exp./1 and which I have already quoted hereinabove.

15. According to me, Shri Zargar learned counsel for appellant appears to be quite correct that contract is uncertain because description of land is not certain. On going through the description of property which was to be sold by defendant, this Court finds that on northern side of the suit property it has been mentioned that it is situated by leaving aside 18x10 of land of survey No. 137/2 area 6.37 acre. Indeed on the northern side after leaving 18x10, which should be the starting point of survey No. 137/2, it is not clear. Thus, the uncertainty is that the suit property which is said to be situated on the northern side of survey No. 137/2 and which is having very long area 6.37 acre which should be the starting point to compute in order to locate the suit property. Alongwith the document of agreement of sale ex./1 the map is not attached in order to locate the suit land. The factum of receiving the replies Ex.D/1 and D/2 sent by the defendant against plaintiffs notices Exp./2 and P/3 has been admitted by the plaintiff in para 6 of his cross-examination. In para 4 of his cross-examination, the plaintiffs have admitted that the document of agreement of sale was brought by him only to the defendant. Thus, the stand of defendant appears to be correct that plaintiffs themselves prepared and brought the document of agreement of sale (Exp./1). Hence, according to me the defendant cannot be blamed for mentioning the incorrect description of the land in the document of agreement of sale Exp. /1.

16. If the description of the property mentioned in the document of agreement of sale (Exp./1) which is uncertain is tested on the touchstone and anvil of present factual scenario and particularly qua cross-examination of plaintiff Mitthulal (PW1) para 5 it is found that he has admitted that the description of the suit property which has been stated in the document no such land exists of said description at the spot. Thus, from the plaintiffs own admission on account of incorrect description of the suit land, the agreement is not certain and therefore according to me because the agreement is uncertain, hence it is void as envisaged under Section 29.

17. According to me, before passing a decree of specific performance of contract the Court should give effect to the terms of agreement but at the same time if an agreement is read as a whole in order to ascertain true intention of the parties and if it is carved out that description of the property is not certain, the suit of specific performance of contract cannot be decreed in favour of plaintiffs in regard to property which does not exist and particularly when in the present case which is not owned by the defendant. No plan has been attached to the document of agreement of sale (Exp./1) in order to locate the land. In this context rightly reliance has been placed by learned counsel for appellant upon the decision of the Supreme Court Vimlesh Kumari Kulshrestha (supra) and also Single Bench decision of this Court Abdul Gaffar (supra). In order to constitute a valid contract parties must so express in regard to subject matter that its meaning can be determined with a reasonable decree of certainty. It should be plain enough and should not be based upon conjectures (see Full Bench decision of Calcutta High Court Dwarkadas & Co. v. Daluram Goganmull AIR 1951 Calcutta 10 and Division Bench decision of Madras High Court Komaru Kollappa Devara v. Kumar Krishna Mitter and another AIR 1945 Madras 10).

18. I would also like to put my endeavour and emphasis to Halsburys Laws of England and also Corpus Juris Secundum. IfI go through the terminology of the words impossibility, mistake and frustration as embodied in Vol. 9 para 441 of 4th edition of Halsburys Laws of England it is gathered that on account of non-existence of some fact it destroys the basis upon which the agreement was reached so that the agreement is discharged or in some other way vitiated and or where performance is already impossible at the time of contract of the case of initial impossibility or mistake. It would be profitable to quote para 441 which reads thus;

441. Impossibility, mistake and frustration. The problem dealt with in the following paragraphs concern situations where the parties have reached agreement but the question arises whether the existence or non-existence of some fact or the occurrence or non-occurrence of some event destroys the basis upon which that agreement was reached so that the agreement is discharged or in some other way vitiated. Where performance is already impossible at the time of contracting the case is one of initial impossibility or mistake; where impossibility arises after the formation of the contract there is a case of subsequent impossibility or frustration. However, despite the common element of impossibility in the above cases, certain types of mistake may invalidate a contract or deprive it of full effect even though there is no impossibility of performance.

19. Para 442 of the aforesaid volume speaks about impossibility and frustration in general. According to this para generally a contract which is incapable of performance at the time when it is made will be void ab initio. Thus, since the land which was to be sold by defendant has been incorrectly described and is uncertain the said agreement is void ab initio. Para 447 of same volume speaks about impossibility ab initio, and this para is also fully applicable in the present case. According to this para where the subject matter of the contract, without the knowledge of the other party cease to exist (res extincta) before the contract was made, the contract may be void on the ground of mistake and the similar principle would apply where property has never existed even though parties believe otherwise. This para of Halsburys Laws of England if tested on the touchstone and anvil of present factual scenario because in the present case also the property which was agreed to be sold does not exist even if it is held that parties believe otherwise, the contract is uncertain and thus void.

20. Para 458 of vol. 7 of Halsburys Laws of England 2nd Edition speaks about uncertainty and according to which where parties have put their agreement into such vague and uncertain language as to be unintelligible, the contract is altogether void unless the uncertain part of the agreement can be separated from the substantial part thereof.

21. If we go through Vol. 17A of Corpus Juris Secundum para 147 this Court finds that it speaks about definition of mistake and according to this para mistake in the law of contracts is an intentional act or omission arising from ignorance, surprise or misplaced confidence. Mistake of fact consists in ignorance of existence or non-existence of a fact material to the contract. If this para is tested to the present case, it would reveal that there was a mistake of fact about the ignorance of the existence of the land which was described in the document of agreement of sale (Exp./1) at the time of its execution on the part of defendant because there is positive evidence of the defendant that the document of agreement of sale was prepared and produced by the plaintiffs themselves and upon their insistence he signed document at that point of time when he was not ready to sign it because he was disturbed on account of missing of his she-buffalo.

22. I have already held hereinabove that the document of agreement of sale (Exp./1) is uncertain and void. The first plaintiff in para 5 of his cross-examination has given certain description of the property of defendant but said description is not mentioned in the document of agreement of sale (Exp./1) and if that would be position Section 93 of the Evidence Act would be applicable in the present case which speaks about exclusion of evidence to explain or amend unambiguous document. According to this provision when the language used in the document is on its face is ambiguous or defective, evidence may not be given of facts which would show its meaning or supply its meaning. The language of the document of agreement of sale Exp./1 is ambiguous and therefore in evidence if plaintiff is saying by describing some other property of defendant, his evidence cannot to be accepted.

23. I do not find any merits in the contention of learned counsel for respondents/plaintiffs that in cross-examination para 5 at one place the plaintiff has stated the description of the property mentioned in the document of agreement of sale (Exp./1), therefore, his evidence should be relied upon. If para 5 of the cross-examination of the plaintiff is considered in its entirety it would reveal that again and again the plaintiff is changing his version in the cross-examination in regard to description of the property because he is very well aware that property as mentioned in the document (Exp./1) is uncertain and does not exist at the spot. True at one place in para 5 of the cross-examination, the first plaintiff (PW1) has given description of the property, which is mentioned in the document (Exp./1) but in the same para itself he has admitted that such property does not exist at the spot.

24. The word "uncertainty" has been explained in the Major Law Lexicon by P. Ramanatha Aiyar 4th Edition (2010) Vol. 6 at page 6966 which means where the words of a deed or will are so vague that no definite meaning can be assigned to them, the grant or gift is void for uncertainty.

25. According to me, on account of the uncertainty and the incorrect description of the suit property made in the document of agreement of sale, the same is void in terms of Section 29 and as such void document cannot be specifically enforced in a suit for specific performance of contract.

26. All the decisions placed reliance by the learned counsel for the respondents are in regard to applicability of Section 91 and 92 of the Evidence Act. There is no quarrel to the aforesaid proposition but when the document of agreement of sale Exp./1 itself is uncertain, it is void and therefore these decisions are not applicable in the present case.

27. For the reasons stated hereinabove, the plaintiffs are not entitled for a decree of specific performance of contract and is only entitled to a decree of refund of earnest money Rs. 3000/-. Since before filing of the suit the defendant was insisting plaintiffs to correct the description of the suit property so that land of correct description of his own could be sold and the plaintiffs avoided to correct the document of agreement of sale, the defendant/appellant cannot be blamed and therefore plaintiffs are not entitled for the interest upon the refund of earnest money Rs. 3000/-. Resultantly, this appeal succeeds in part and is hereby allowed. The suit of the plaintiffs of specific performance of contract is hereby dismissed. However, a decree is passed against defendant/ appellant to refund the earnest money Rs. 3000/-to plaintiffs without any interest. Looking to the facts and circumstances of the case, parties are hereby directed to bear their own costs throughout.