Patna High Court
Smt. Kiran Singh vs Smt. Anjushree Banerjee on 24 March, 2026
IN THE HIGH COURT OF JUDICATURE AT PATNA
SECOND APPEAL No.317 of 1997
======================================================
1. Smt. Kiran Singh Wife of Narain Pd. Singh, resident of Barabandh, P.S.
Khaira, District Monghyr, presently residing at Adampur, P.S. Barari,
District- Bhagalpur.
2.1. Vineet Kumar Singh S/o Late Narain Prasad Singh, Y-195, Regency Park- 2,
DLF Phase 4 Nathupur (67), Nathupur, Farrukhnagar, Gurgoan, Haryana.
2.2. Shashwat Kumar Singh, S/o Late Narain Prasad Singh, Y-195, Regency
Park- 2 Galeria DL T IV, Galeria IV, Gurgoan, Haryana- 122002.
2.3. Richa Singh, D/o Late Narain Prasad Singh, C/o Ravi Shankar, F-73, 1st
Floor, Suncity, Sect- 54 Chakarpur (74) Chakarpur Gurgoan, Haryana-
122002.
... ... Appellant/s
Versus
Sourja Banerjee Son of Late Sandip Banerjee, resident of Panchanantala
Road, Ghoshpara, Police Station - Maheshtala, District- South 24, Parganas,
West Bengal.
... ... Respondent/s
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Appearance :
For the Appellant/s : Mr. Nilanjan Chattergee, Advocate
Mr. Ujjwal Raj, Advocate
Mr. Sahil Kumar, Advocate
Mr. Anirvan Chaudhary, Advocate
Mr. Jyoti Prakash, Advocate
For the Respondent/s : Mr. Md. Nadim Seraj, Advocate
Mr. Sunil Kumar Mandal, Advocate
Mr. Muqtadin Ahmad, Advocate
Mr. Raju Patel, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE RAMESH CHAND
MALVIYA
CAV JUDGMENT
Date : 24-03-2026
Heard learned counsel for the appellants as well as
learned counsel for the respondent.
2. This Second Appeal under Section 100 of the Code
of Civil Procedure, 1908 (hereinafter referred to as 'CPC') has
been filed by the appellants against the judgment and decree
Patna High Court SA No.317 of 1997 dt.24-03-2026
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dated 21.08.1997 passed by learned 3rd Additional District
Judge, Bhagalpur (hereinafter referred to as 'Appellate Court')
in Title Appeal No.04 of 1994 wherein learned Appellate Court
reversed the judgment and decree dated 31.08.1990 passed by
learned Sub Judge-I, Bhagalpur (hereinafter referred to as 'Trial
Court') in Title Suit No.178 of 1978 holding that the plaintiff
(respondent herein) has got no valid cause of action and that she
has failed to perform her part of contract.
3. The genesis of the case, as borne out from the
pleadings and the materials available on record, is that the
plaintiff/respondent instituted Title Suit No. 178 of 1978 seeking
a decree for specific performance of an agreement for sale dated
07.07.1974
in respect of the suit property situated at Mohalla
Adampur, Bhagalpur, and, in the alternative, for a declaration
that the registered sale deed dated 21.07.1973 executed in
favour of defendant no.1 (appellant no.1) did not confer valid
title upon her, along with recovery of possession. The case of
the plaintiff, in substance, was that owing to financial distress
and outstanding dues of the Central Bank of India, she obtained
a sum of Rs. 30,000/- from defendant no.2 (appellant no.2) and,
as security for the said loan, executed a registered sale deed
dated 21.07.1973 in favour of defendant no.1, though the
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transaction was never intended to be an absolute sale. It was
further pleaded that she continued in possession of the suit
property and that subsequently, on 07.07.1974, an agreement for
re-conveyance was executed whereby the defendants
(appellants) agreed to transfer the property back to her on
receipt of the stipulated consideration. It has further been
asserted that the respondent paid the consideration amount in
installments, including a lump sum payment (Rs.15,000/-)
towards the last four installments and stamp expenses in August,
1975, but despite such payment the defendants failed to execute
the re-conveyance deed and ultimately dispossessed her forcibly
on 30.10.1975. The defendants, however, contested the suit by
asserting that the sale deed dated 21.07.1973 was an out and out
sale for valid and adequate consideration, that possession had
been delivered on the date of execution itself, that the plaintiff
failed to perform the terms of the alleged agreement dated
07.07.1974 within the stipulated time, and that the story of
mortgage and subsequent dispossession was wholly false.
4. Upon service of summons, both the defendants
(appellants herein) appeared and filed their separate written
statements, contesting the claim of the plaintiff in toto. It was
stated that the suit, as framed, was not maintainable as the
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plaintiff had no valid cause of action. It was further stated that
the suit was barred by limitation, estoppel and principles of
acquiescence, besides being bad for misjoinder of parties. It was
specifically stated that the registered sale deed dated 21.07.1973
executed in favour of defendant no.1 was an out and out sale for
valuable and adequate consideration of Rs. 30,000/-, and not a
mortgage or security transaction as alleged. The defendants
asserted that possession of the suit property was delivered to
defendant no.1 on the date of execution of the sale deed itself,
and thereafter her name was duly mutated in the municipal and
revenue records and she had been exercising rights of ownership
over the property. The alleged agreement for sale dated
07.07.1974 was either denied or, in the alternative, it was
contended that the plaintiff had failed to perform her part of the
contract within the stipulated time and had not paid the balance
consideration as required under the terms thereof. The plea of
continued possession and forcible dispossession on 30.10.1975
was categorically denied, and it was contended that the entire
story of mortgage, re-conveyance and dispossession was false,
concocted and instituted only to harass the defendants.
5. On the basis of the pleadings of the parties, the
learned Trial Court framed following issues for determination:
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(i) Is the suit as framed maintainable?
(ii) Has the plaintiff got any cause of action
for the suit?
(iii) Is the suit bad for mis-joinder of the
parties?
iv) Is the suit barred by law of limitation,
rule of estoppel and principle of
acquiescence?
(v) Has the plaintiff sold the suit property to
the defendant no.1 for a valuable
consideration through the registered sale
deed dated 21.07.1973 or pledged the same
as security to the alleged loan of
Rs,30,000/-?
(vi) Was time an essence of the contract for
sale?
(vii) Was the plaintiff dispossessed forcibly
from the suit property by defendant no.1 and
2?
(viii) Has the plaintiff paid the entire amount
of Rs.36,001/- to the defendant no.1?
(ix) Has the plaintiff any right, title and
possession over the suit land?
(x) Is the plaintiff entitled to a decree, as
prayed for?
(xi) To what relief or reliefs, if any, is the
plaintiff entitled to?
6. Considering the facts and circumstances of the
case, submissions of the parties and on perusal of the materials
available on record, the learned Trial Court came to the
conclusion that the plaintiff had failed to establish that the
registered sale deed dated 21.07.1973 was a mere security
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transaction and not an absolute sale. Learned Trial Court held
that the document, being a registered instrument carrying a
presumption of validity, clearly evidenced the transfer of title
for valuable consideration, and there was no cogent material to
rebut the same. It was further held that the plaintiff had not been
able to prove payment of the entire consideration amount under
the alleged agreement for re-conveyance dated 07.07.1974 nor
her continuous readiness and willingness to perform her part of
the contract within the stipulated time. The plea of continued
possession and subsequent forcible dispossession was also
disbelieved. Based on the above findings, the learned Trial
Court dismissed the suit, holding that the plaintiff was not
entitled to the reliefs of declaration, specific performance or
recovery of possession.
7. Aggrieved by the judgment and decree of dismissal
passed by the learned Trial Court, the plaintiff preferred Title
Appeal No.04 of 1994 before the learned Appellate Court. The
learned Appellate Court, being the final court of facts, re-
appreciated the entire oral and documentary evidence on record
and came to a different conclusion. It held that the surrounding
circumstances indicated that the transaction dated 21.07.1973
was not intended to be an out and out sale but was executed in
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the backdrop of financial distress, and that the agreement dated
07.07.1974 for re-conveyance was duly proved. The learned
Appellate Court further found that the plaintiff had established
payment of consideration and her readiness and willingness to
perform her part of the contract. Consequently, the findings of
the learned Trial Court were reversed and the suit was decreed,
granting relief in favour of the plaintiff.
8. Being aggrieved by the judgment and decree passed
by the learned Appellate Court, the defendants have preferred
the present Second Appeal. The appeal was admitted to hearing
on formulation of substantial question(s) of law as required
under Section 100 of the CPC. The substantial question(s) of
law raised before this Court are as under:
(A) Whether the despatch of letter i.e. Ext.1
by certificate of posting has any evidentary
value in view of the law laid down by the
Hon’ble Supreme Court in AIR 1994 SC
678?
(B) Whether a despatch of a letter under
certificate of posting only raises a
presumption of posting and nothing more?
(C) Whether in absence of any receipt of
payment of Rs.15,000/- and the facts and
circumstances of the case the appellant court
erred in believing the alleged payment
(D) Whether the evidence of the plaintiff and
her witnesses ought not to have been
Patna High Court SA No.317 of 1997 dt.24-03-2026
8/36rejected in view of the material and serious
contradictions with regard to the date, time
& place of payment to the Appellants ?
(E) Whether in the facts and circumstances
of the case, Ext. 1 was an engineered
document in as much as the date of payment
of the remaining 4 instalments was
mentioned in the said document but it was
never pleaded in the plaint nor mentioned in
the evidence as to when the payment was
made to the defendant?
(F) Whether Ext. 1 could have been admitted
as a document in view of the fact that the
said original letter was filed as Ext. 1 in the
court and also sent to the appellant-
defendant no. 1?
(G) Whether in a case a witness who has not
been confronted with a letter which is
alleged to be sent to her/him and in the
absence of any evidence on the part of the
said witness with regard to receipt of the
said letter suo-moto can be treated as
admission of the document more so when the
contents of the letter are categorically
denied in the pleadings as well as in
evidence?
(H) Whether a plaintiff/party who sets up a
false case before the court of being
dispossessed should be refused the relief of
specific performance under Section 20 of the
Specific Relief Act, 1963?
(I) Whether in the facts and circumstances of
the case the finding of the Appellate court on
the point alleged payment is sustainable in
law without considering all the reasoning
given by the trial court?
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(J) Whether in view of clause-8 and 9 of the
agreement for sale dated 7th July, 1974 the
Appellate Court could have passed a decree
for specific performance of contract without
clarifying if the plaintiff was entitled to
Rs.39,000/- instead of Rs.24,000/- as
allowed by court below?
(K) Whether a decree for specific
performance of an agreement can be granted
by a court when the purchaser does not offer
to make the payment/ or fails to make
payment in accordance with the time
schedule under the terms of the agreement
when time is the essence of the agreement?
9. Learned counsel for the appellants assailed the
impugned judgment and decree of the learned Appellate Court
as being contrary to law and the evidence on record. It is
submitted that the Appellate Court, while exercising jurisdiction
as the final court of fact, failed to discharge its statutory duty of
closely scrutinizing and dealing with the reasoning of the
learned Trial Court before reversing its well-considered
findings. Learned counsel submitted that the learned Trial Court
had meticulously appreciated the both oral and documentary
evidence and had rightly concluded that the registered sale deed
dated 21.07.1973 was an absolute transfer for valuable
consideration. It is further submitted that the learned Appellate
Court reversed the said findings on conjectures and surmises,
without assigning cogent reasons for discarding the presumption
Patna High Court SA No.317 of 1997 dt.24-03-2026
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attached to a registered instrument. Furthermore, the learned
Appellate Court reversed this foundational finding without
meeting the learned Trial Court reasoning “in close quarters”, as
required in law, and disregard the principles laid down by
Hon’ble Apex Court in Madhusudan Das v. Narayani Bai,
reported in (1983) 1 SCC 35.
9.i. Learned counsel for the appellants further
submitted that the plaintiff’s plea that the registered sale deed
was merely a security transaction is legally untenable and
contrary to the bar under Section 92 of the Evidence Act. It is
submitted that once the terms of a registered document are clear
and unambiguous, they cannot be contradicted by oral assertions
unless supported by cogent and convincing evidence of a very
high degree. It is further submitted that the burden to prove that
a transaction, though absolute in form, was in substance a
mortgage or security, lies heavily upon the person asserting it.
Learned counsel submitted that in the present case, no reliable
evidence was adduced to establish that the consideration of Rs.
30,000/- was in fact a loan or that the parties intended anything
other than an outright sale, and the learned Appellate Court
erred in law in diluting this settled burden of proof. It is further
submitted that the learned Appellate Court erred in law in
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ignoring the settled principle that the burden to prove that a
document, though absolute in form, was in reality a mortgage or
security transaction, lies heavily upon the person asserting so.
9.ii. Learned counsel for the appellant further
submitted that, argumenti causa, even if the agreement for re-
conveyance dated 07.07.1974 is assumed to be genuine, the
plaintiff (respondent) was required to strictly prove continuous
readiness and willingness to perform her part of the contract, as
mandated for a decree of specific performance. It is submitted
that the entire case of the respondent hinges upon the alleged
payment of Rs. 15,000/-, which admittedly remains unreceipted,
despite all earlier installments having been duly acknowledged.
The learned Trial Court, upon proper appreciation of evidence,
found that the plaintiff had failed to prove such payment and
that the evidence suffered from material contradictions
regarding the date, manner, and persons involved in the alleged
transaction. Learned counsel submitted that these contradictions,
going to the root of the claim, could not have been brushed
aside as minor discrepancies, in view of the principles laid down
in Sarju Pershad v. Raja Jwaleshwari Pratap Narain Singh,
reported in AIR 1951 SC 120 and the settled distinction between
minor inconsistencies and material contradictions.
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9.iii. Learned counsel for the appellants further
submitted that the reliance placed by the learned Appellate
Court on Exhibit-1, namely a letter sent under certificate of
posting, is wholly misconceived in law. It is submitted that such
a document does not carry any statutory presumption of service
under Section 27 of the General Clauses Act, as held by the
Hon’ble Apex Court in L.M.S. Ummu Saleema v. B.B. Gujaral
and Anr., reported in AIR 1981 SC 1191, and at best gives rise
to a weak and discretionary presumption under Section 114 of
the Evidence Act, which cannot be invoked in a disputed case.
Learned counsel has also placed reliance on the judgment of the
Hon’ble Apex Court in Samittri Devi and Anr. v. Sampuran
Singh and Anr., reported in (2011) 3 SCC 556, wherein it has
been held that such presumption is not mandatory and depends
upon surrounding circumstances. It is submitted that the learned
Appellate Court erred in treating Exhibit-1 as unimpeachable
proof and using it to override material contradictions, thereby
effectively converting a weak piece of evidence into conclusive
proof of payment.
9.iv. Learned counsel for the appellants next
submitted that the findings of the learned Appellate Court
regarding possession and alleged dispossession are equally
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unsustainable. It is submitted that possession was delivered to
defendant no.1/respondent no.1 at the time of execution of the
registered sale deed itself, and subsequent mutation and acts of
ownership corroborate the defence case. It is submitted that the
learned Appellate Court, however, misdirected itself by placing
undue reliance on interested and inconsistent oral testimony
while ignoring documentary evidence and surrounding
circumstances, thereby rendering its findings perverse.
9.v. In sum and substance, learned counsel for the
appellants submitted that the impugned judgment of the learned
Appellate Court suffers from perversity in appreciation of
evidence, misapplication of legal principles governing
interpretation of registered documents, and improper exercise of
jurisdiction in reversing the well-reasoned findings of the
learned Trial Court. It is, therefore, submitted that the judgment
and decree of the learned Appellate Court be set aside and that
the judgment of the learned Trial Court dismissing the suit be
restored.
10. Per contra, learned counsel for the respondent
supported the impugned judgment and decree of the learned
Appellate Court and submitted that the same does not suffer
from any illegality or perversity warranting interference under
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Section 100 of the CPC. It is submitted that the learned
Appellate Court, being the final Court of fact, has thoroughly re-
appreciated the entire oral and documentary evidence on record
and has recorded a categorical finding that the plaintiff had
proved payment of the balance consideration amount of
Rs.15,000/- and had established her continuous readiness and
willingness to perform her part of the contract. Learned counsel
further submitted that such findings are pure findings of fact
based on evidence and cannot be reopened in second appeal
unless shown to be perverse or based on no evidence, which is
not the case herein.
10.i. Learned counsel for the respondent further
submitted that the entire transaction between the parties clearly
demonstrated that the registered sale deed dated 21.07.1973,
though absolute in form, was executed in the background of
financial distress and was followed by a registered agreement
for re-conveyance dated 07.07.1974 (Ext.2), which
unequivocally reflected the intention of the parties that the
property would be returned to the plaintiff/respondent on
repayment of the stipulated amount. The plaintiff admittedly
paid eight instalments, and the dispute is confined only to the
last lump sum payment made in August, 1975. It is submitted
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that the learned Appellate Court, upon appreciation of the oral
testimony of PW-1, PW-3 and PW-8 and Ext. 1 (letter dated
25.09.1975) along with Ext. 4 (certificate of posting), accepted
the plaintiff’s explanation regarding payment and the absence of
a formal receipt in view of the cordial relations between the
parties. It is, moreover, submitted that minor inconsistencies as
to the exact date or accompanying persons do not go to the root
of the matter and were rightly ignored by the learned Appellate
Court.
10.ii. Learned counsel for the respondent further
submitted that the objection regarding evidentiary value of the
letter sent under certificate of posting is misconceived. Ext.1
was duly proved and marked without objection, and the carbon
copy thereof was admissible in evidence as secondary evidence
since the original was dispatched to the defendant. It is
submitted that under Section 114 of the Evidence Act, a
presumption arises regarding due service of a letter sent in the
ordinary course of post, and the defendants having merely
denied receipt without leading any convincing rebuttal evidence,
the presumption remained unrebutted. It is also urged that the
plea that time was the essence of the contract is untenable in
contracts relating to immovable property, and in any event, the
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respondents having accepted earlier instalments without protest,
had waived strict adherence to the time schedule.
10.iii. In support of his submissions, learned counsel
for the respondent placed reliance upon the decisions of the
Hon’ble Supreme Court in Kondiba Dagadu Kadam v.
Savitribai Sopan Gujar and Ors., reported in (1999) 3 SCC
722, to contend that the High Court cannot interfere with
findings of fact recorded by the first appellate court unless the
same are perverse; Chand Rani v. Kamal Rani, reported in
(1993) 1 SCC 519, to submit that time is ordinarily not the
essence in contracts for sale of immovable property;
Gomathinayagam Pillai and Ors. v. Palaniswami Nadar,
reported in (1967) 1 SCR 227, on the principle of waiver of
stipulation as to time; Samittri Devi and Anr. v. Sampuran
Singh and Anr., reported in (2011) 3 SCC 556 and L.M.S.
Ummu Saleema v. B.B. Gujaral and Anr., reported in AIR
1981 SC 1191, regarding the presumption arising from postal
communication; and K. Narendra v. Riviera Apartments (P)
Ltd., reported in (1999) 5 SCC 77, to submit that specific
performance is the rule and refusal is an exception, and hardship
foreseeable at the time of contract cannot defeat relief. On the
strength of these authorities, it is submitted that the impugned
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judgment does not raise any substantial question of law and the
second appeal deserves dismissal.
11. Having heard the learned counsel for the parties at
length and having perused the pleadings, evidence on record and
the judgments of the learned Trial Court and the learned
Appellate Court, this Court now proceeds to examine the
substantial question(s) of law framed at the time of admission of
the present Second Appeal. It is well settled that the jurisdiction
of this Court under Section 100 of the CPC is confined to
substantial questions of law, and this Court does not sit as a
Court of re-appreciation of evidence unless the findings
recorded by the Appellate Court are shown to be perverse, based
on no evidence, or suffering from a patent error of law. Though
the Appellate Court is the final Court of fact, its findings must
be founded upon proper appreciation of evidence and correct
application of legal principles. If the conclusions are arrived at
by ignoring material evidence, misapplying settled principles
governing proof, or by drawing inferences not supported by the
record, such findings assume the character of perversity, thereby
inviting interference under Section 100 of the CPC. The issues
raised by the appellants, therefore, are required to be tested
within the limited scope of interference permissible in Second
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Appeal.
12. At the outset, it is well settled that though the
Appellate Court is the final Court of fact, its findings must be
based on proper appreciation of evidence and sound legal
principles. Where the Appellate Court reverses a well-reasoned
judgment of the learned Trial Court without adequately dealing
with the core reasoning and material inconsistencies, such
findings assume the character of perversity and give rise to a
substantial question of law under Section 100 CPC. In Santosh
Hazari v. Purushottam Tiwari, reported in (2001) 3 SCC 179,
the Hon’ble Supreme Court has held that reversal of findings
must reflect conscious application of mind to the reasoning of
the Trial Court, however, mere substitution of conclusions is
impermissible.
13. This Court also takes note of the judgments relied
upon by learned counsel for the appellants in support of their
submissions. Reliance has been placed on Madhusudan Das v.
Narayani Bai (supra) to submit that an Appellate Court, while
reversing findings of the Trial Court, must assign cogent reasons
and cannot disregard material evidence or substitute its own
conclusions without proper analysis. Similarly, reliance has been
placed on Sarju Pershad v. Raja Jwaleshwari Pratap Narain
Patna High Court SA No.317 of 1997 dt.24-03-2026
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Singh (supra) to emphasize that findings of the Trial Court
based on appreciation of oral evidence and witness credibility
are entitled to due weight and should not be lightly interfered
with. Further reliance on Nathulal v. Phoolchand, reported in
(1969) 3 SCC 120 has been made to submit that in a suit for
specific performance, the plaintiff must establish readiness and
willingness along with financial capacity and actual tender of
consideration. The appellants have also relied upon Samittri
Devi v. Sampuran Singh (supra) and L.M.S. Ummu Saleema v.
B.B. Gujaral (supra) to put across that presumption arising
from certificate of posting is merely permissive and cannot be
treated as conclusive proof of service or payment. The
principles emerging from the aforesaid decisions are well settled
and have been kept in view while appreciating the issues
involved in the present case.
14. It is pertinent to mention here that the general rule
is that the Appellate Court should permit the finding of fact
rendered by the Trial Court to prevail unless the Trial Court fails
to consider the evidence and materials on record to reach on the
said finding and the same is improbable. The Hon’ble Supreme
Court in Madhusudan Das v. Narayanibai (supra) has held
that:
Patna High Court SA No.317 of 1997 dt.24-03-2026
20/36“8. In an appeal against a trial court
decree, when the appellate court considers
an issue turning on oral evidence it must
bear in mind that it does not enjoy the
advantage which the trial court had in
having the witnesses before it and of
observing the manner in which they gave
their testimony. When there is a conflict of
oral evidence on any matter in issue and its
resolution turns upon the credibility of the
witnesses, the general rule is that the
appellate court should permit the findings
of fact rendered by the trial court to prevail
unless it clearly appears that some special
feature about the evidence of a particular
witness has escaped the notice of the trial
court or there is a sufficient balance of
improbability to displace its opinion as to
where the credibility lies. The principle is
one of practice and governs the weight to
be given to a finding of fact by the trial
court. There is, of course, no doubt that as
a matter of law if the appraisal of the
evidence by the trial court suffers from a
material irregularity or is based on
inadmissible evidence or on a misreading of
the evidence or on conjectures and surmises
the appellate court is entitled to interfere
with the finding of fact.”
15. So far as the evidentiary value of Ext.1 (certificate
of posting) is concerned in the given case, it holds a significant
value as to infer the acknowledgement of payment. It is clarified
that a certificate of posting merely raises a permissive
presumption of posting, not of delivery. The Hon’ble Supreme
Court in L.M.S. Ummu Saleema (supra) has held as under:
Patna High Court SA No.317 of 1997 dt.24-03-2026
21/36“6. ……..We are satisfied that the alleged
letter of retraction was only a myth. The
certificate of posting might lead to a
presumption that a letter addressed to the
Assistant Collector of Customs was posted
on August 14, 1980 and in due course
reached the addressee. But, that is only a
permissible and not an inevitable
presumption. Neither Section 16 nor
Section 114 of the Evidence Act compels
the court to draw a presumption. The
presumption may or may not be drawn. On
the facts and circumstances of a case, the
court may refuse to draw the presumption.
On the other hand the presumption may be
drawn initially but on a consideration of
the evidence the court may hold the
presumption rebutted and may arrive at the
conclusion that no letter was received by
the addressee or that no letter was ever
despatched as claimed. After all, there have
been cases in the past, though rare, where
postal certificates and even postal seals have
been manufactured. In the circumstances of
the present case, circumstances to which we
have already referred, we are satisfied that
no such letter of retraction was posted as
claimed by the detenu.”
(emphasis supplied)
16. At the outset, it is significant to reproduce Section
27 of the General Clauses Act, 1897 and Section 114
[Illustration (f)] of the Evidence Act, 1872. They are reproduce
respectively, hereinunder:
“27. Meaning of service by post.–Where
any 2 [Central Act] or Regulation made
Patna High Court SA No.317 of 1997 dt.24-03-2026
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authorizes or requires any document to be
served by post, whether the expression
“serve” or either of the expressions “give”
or “send” or any other expression is used,
then, unless a different intention appears,
the service shall be deemed to be effected
by properly addressing, pre-paying and
posting by registered post, a letter
containing the document, and, unless the
contrary is proved, to have been effected at
the time at which the letter would be
delivered in the ordinary course of post.”
“114. Court may presume existence of
certain facts. – The Court may presume the
existence of any fact which it thinks likely to
have happened, regard being had to the
common course of natural events, human
conduct and public and private business, in
their relation to the facts of the particular
case.
xxxx xxxx xxxx
(f) that the common course of business has
been followed in particular cases;…..”
17. The position to be inferred under Section 27 of the
General Clauses Act is that it embodies a rebuttable
presumption of service only when a document is properly
addressed, prepaid and sent by registered post, and even then the
presumption is not conclusive but subject to proof to the
contrary. In the present case, the alleged communication was
sent merely under certificate of posting and not by registered
post with acknowledgment due. A certificate of posting, by
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itself, merely evidences dispatch and does not raise an inevitable
presumption of delivery. The Hon’ble Supreme Court in
Gadakh Yashwantrao Kankarrao v. E.V. alias Balasaheb
Vikhe Patil and Ors., reported in (1994) 1 SCC 682; AIR 1994
SC 678, categorically held that a certificate of posting may give
rise to a permissive presumption but the court is not bound to
draw such presumption, particularly where surrounding
circumstances create doubt regarding its genuineness or service.
18. The submission advanced on behalf of the
respondent that the decision in Gadakh Yashwantrao
Kankarrao (supra), is inapplicable on the ground that it arose
out of an election petition and that in civil cases the doctrine of
preponderance of probabilities prevails, does not merit
acceptance. The principle laid down in Gadakh Yashwantrao
Kankarrao (supra) is not confined to election jurisprudence but
pertains to the nature and scope of presumption arising from a
certificate of posting under Section 114 of the Evidence Act.
The Hon’ble Supreme Court therein clarified that such
presumption is merely permissive and not mandatory, and that
courts must be cautious in acting upon certificates of posting,
which are susceptible to easy procurement. The standard of
proof, whether strict proof in quasi-criminal proceedings or
Patna High Court SA No.317 of 1997 dt.24-03-2026
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preponderance of probabilities in civil matters, does not dilute
the foundational requirement that the fact of service must be
established by reliable evidence. Even in civil cases,
presumptions under Section 114 are discretionary and
rebuttable, and cannot be mechanically invoked to shift the
burden unless foundational facts are satisfactorily proved. The
doctrine of preponderance of probabilities does not convert a
weak or doubtful piece of evidence into conclusive proof rather,
probabilities must be drawn from credible and cogent material.
19. In the present case, the appellants specifically
denied receipt of the letter. No independent postal official was
examined as well as no acknowledgment was produced. The
learned Appellate Court treated the certificate of posting as
conclusive proof, which is legally impermissible. Moreover,
reliance put by the respondent on Samittri Devi (supra) and
L.M.S. Ummu Saleema (supra) does not advance the present
case, as those decisions clearly state that presumption is not
inevitable and may be refused where circumstances create
doubt. In the present case, the surrounding circumstances, such
as, absence of receipt, denial by appellants, and contradictions
in the testimony, clearly rebut such presumption. Also, the
presumption under Section 114 of the Evidence Act is
Patna High Court SA No.317 of 1997 dt.24-03-2026
25/36
discretionary and rebuttable. In view thereof, this Court finds
that such reliance is legally erroneous and the finding by the
learned Appellate Court based on Certificate of Posting (Ext.1)
is not sustainable.
20. Now, it is significant to examine the central issue
in the present case which relates to the alleged payment of the
balance sum of Rs.15,000/- said to have been made in lump sum
in August 1975 by the respondent. Admittedly, no receipt was
issued for such a substantial amount. The learned Appellate
Court accepted the explanation of “friendly relations” and
treated the absence of receipt as inconsequential. The learned
Appellate Court, however, brushed aside the material
inconsistencies as “minor discrepancies” without analysing their
impact. The finding regarding payment, therefore, is not a mere
finding of fact but a finding based on misappreciation of
material evidence, thereby attracting interference.
21. The reliance placed by the respondent on Kondiba
Dagadu Kadam (supra) is misplaced. The said decision restricts
interference where findings are based on evidence. It has been
held as under:
“5. It is not within the domain of the High
Court to investigate the grounds on which
the findings were arrived at, by the last
Patna High Court SA No.317 of 1997 dt.24-03-2026
26/36court of fact, being the first appellate court.
It is true that the lower appellate court
should not ordinarily reject witnesses
accepted by the trial court in respect of
credibility but even where it has rejected the
witnesses accepted by the trial court, the
same is no ground for interference in
second appeal when it is found that the
appellate court has given satisfactory
reasons for doing so. In a case where from
a given set of circumstances two inferences
are possible, one drawn by the lower
appellate court is binding on the High
Court in second appeal. Adopting any other
approach is not permissible. The High
Court cannot substitute its opinion for the
opinion of the first appellate court unless it
is found that the conclusions drawn by the
lower appellate court were erroneous
being contrary to the mandatory
provisions of law applicable or its settled
position on the basis of pronouncements
made by the Apex Court, or was based
upon inadmissible evidence or arrived at
without evidence.”
(emphasis supplied)
In view thereof, where material evidence is ignored or inference
is drawn without legal proof, the finding becomes perverse and
is open to interference. The present case falls in the latter
category.
22. In the facts of the present case, this omission
assumes significant importance. The previous course of dealings
Patna High Court SA No.317 of 1997 dt.24-03-2026
27/36
between the parties unmistakably shows that for the earlier eight
instalments, receipts were admittedly issued. When parties, in
the ordinary course of their transaction, reduced payments into
writing and acknowledged them formally, the sudden departure
from such practice in respect of the final and substantial amount
of Rs.15,000/- creates a serious doubt. It is not a case of an
insignificant balance rather, it constitutes a substantial portion of
the total consideration and included the alleged stamp expenses.
In such circumstances, absence of any documentary
acknowledgment, coupled with inconsistencies in the oral
testimony regarding the date, place and presence of witnesses at
the time of payment, renders the version of respondent
inherently improbable.
23. It is well settled that in a suit for specific
performance, the burden lies heavily on the plaintiff to prove
continuous readiness and willingness under Section 16(c) of the
Specific Relief Act. Payment of consideration must be proved
with cogent and convincing evidence. Mere oral assertions,
particularly when contradicted on material particulars, cannot
substitute proof
24. The Hon’ble Supreme Court in J.P. Builders and
Anr.v. A. Ramadas Rao and Anr., reported in (2011) 1 SCC 429
Patna High Court SA No.317 of 1997 dt.24-03-2026
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has held as under:
“25. Section 16(c) of the Specific Relief Act,
1963 mandates “readiness and
willingness” on the part of the plaintiff and
it is a condition precedent for obtaining
relief of grant of specific performance. It is
also clear that in a suit for specific
performance, the plaintiff must allege and
prove a continuous “readiness and
willingness” to perform the contract on his
part from the date of the contract. The onus
is on the plaintiff.
26. It has been rightly considered by this
Court in R.C. Chandiok v. Chuni Lal
Sabharwal [(1970) 3 SCC 140] that
“readiness and willingness” cannot be
treated as a straitjacket formula. This has
to be determined from the entirety of the
facts and circumstances relevant to the
intention and conduct of the party
concerned.
27. It is settled law that even in the absence
of specific plea by the opposite party, it is
the mandate of the statute that the plaintiff
has to comply with Section 16(c) of the
Specific Relief Act and when there is non-
compliance with this statutory mandate, the
court is not bound to grant specific
performance and is left with no other
alternative but to dismiss the suit. It is also
clear that readiness to perform must be
established throughout the relevant points
of time. “Readiness and willingness” to
perform the part of the contract has to be
determined/ascertained from the conduct of
the parties.”
25. Apropos the principle laid down by the Hon’ble
Patna High Court SA No.317 of 1997 dt.24-03-2026
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Supreme Court in J.P. Builders and Anr. (supra), wherein a suit
for specific performance, the plaintiff must establish readiness
and willingness by clear and cogent evidence, and the burden to
prove payment of consideration lies squarely upon the plaintiff.
Where documentary evidence would ordinarily be expected in
the normal course of human conduct, its absence becomes a
material circumstance against the party asserting payment.
Applying the said principle to the present case, this Court finds
that the unexplained failure to obtain a receipt for such a
substantial payment, contrary to the earlier consistent practice of
issuing receipts, is a circumstance fatal to the case of the
respondent and the learned Appellate Court erred in law in
treating it as inconsequential.
26. Having considered that the requirement under
Section 16(c) of the Specific Relief Act is mandatory. The
respondent must prove continuous readiness and willingness
from the date of agreement till decree. The conduct of the
respondent does not inspire confidence and the learned
Appellate Court assumed readiness merely because earlier
instalments were paid. Further, the learned Appellate Court has
failed to minutely examine the contradictions regarding date,
place and presence of witnesses to the alleged payment and has
Patna High Court SA No.317 of 1997 dt.24-03-2026
30/36
wrongly came to the conclusion of the story. Such inference is
legally insufficient.
27. Moreover, the agreement (Ext. 2) specifically
stipulated payment within one year and contained forfeiture
clauses. The learned Appellate Court held that time is ordinarily
not essence in contracts relating to immovable property, relying
upon Chand Rani (supra). However, the said judgment itself
clarifies that intention of parties must be gathered from the
terms of the contract. Where the agreement contains explicit
stipulation of time coupled with consequences of default, the
presumption stands displaced.
28. Section 55 of the Indian Contract Act, 1872 is in
three parts. In relevance to this case, it is enough to notice the
first two parts, which reads:
“55. Effect of failure to perform at fixed
time, in contract in which time is essential.
–When a party to a contract promises to
do a certain thing at or before a specified
time, or certain things at or before specified
times, and fails to do any such thing at or
before the specified time, the contract, or so
much of it as has not been performed,
becomes voidable at the option of the
promisee, if the intention of the parties was
that time should be of the essence of the
contract.
Effect of such failure when time is not
Patna High Court SA No.317 of 1997 dt.24-03-2026
31/36essential.–If it was not the intention of the
parties that time should be of the essence of
the contract, the contract does not become
voidable by the failure to do such thing at
or before the specified time; but the
promisee is entitled to compensation from
the promisor for any loss occasioned to him
by such failure.”
29. The Hon’ble Supreme Court relying upon the
precedent of Chand Rani (supra) in K.S. Vidyanadam and Ors.
v. Vairavan, reported in (1997) 3 SCC 1 has held as under:
“10. …….That would amount to saying that
the time-limits prescribed by the parties in
the agreement have no significance or value
and that they mean nothing. Would it be
reasonable to say that because time is not
made the essence of the contract, the time-
limit(s) specified in the agreement have no
relevance and can be ignored with
impunity? It would also mean denying the
discretion vested in the court by both
Sections 10 and 20. As held by a
Constitution Bench of this Court in Chand
Rani v. Kamal Rani [(1993) 1 SCC 519]:
(SCC p. 528, para 25)
“… it is clear that in the case of sale of
immovable property there is no presumption
as to time being the essence of the contract.
Even if it is not of the essence of the
contract, the Court may infer that it is to
be performed in a reasonable time if the
conditions are (evident?): (1) from the
express terms of the contract; (2) from the
nature of the property; and (3) from the
surrounding circumstances, for example,
Patna High Court SA No.317 of 1997 dt.24-03-2026
32/36the object of making the contract.”
In other words, the court should look at all
the relevant circumstances including the
time-limit(s) specified in the agreement
and determine whether its discretion to
grant specific performance should be
exercised.”
(emphasis supplied)
30. Further, the Hon’ble Supreme Court in
Saradamani Kandappan v. S. Rajalakshmi and Ors., reported
in (2011) 12 SCC 18 has held as under:
“23. The above section deals with the effect
of failure to perform at a fixed time, in
contracts in which time is essential. The
question whether time is the essence of the
contract, with reference to the performance
of a contract, what generally may arise for
consideration either with reference to the
contract as a whole or with reference to a
particular term or condition of the contract
which is breached. In a contract relating to
sale of immovable property if time is
specified for payment of the sale price but
not in regard to the execution of the sale
deed, time will become the essence only
with reference to payment of sale price but
not in regard to execution of the sale deed.
Normally in regard to contracts relating to
sale of immovable properties, time is not
considered to be the essence of the contract
unless such an intention can be gathered
either from the express terms of the contract
or impliedly from the intention of the
parties as expressed by the terms of the
Patna High Court SA No.317 of 1997 dt.24-03-2026
33/36contract.
xxxx xxxx xxxx
28. The intention to make time stipulated
for payment of balance consideration will
be considered to be essence of the contract
where such intention is evident from the
express terms or the circumstances
necessitating the sale, set out in the
agreement. If, for example, the vendor
discloses in the agreement of sale, the
reason for the sale and the reason for
stipulating that time prescribed for payment
to be the essence of the contract, that is,
say, need to repay a particular loan before
a particular date, or to meet an urgent time-
bound need (say medical or educational
expenses of a family member) time
stipulated for payment will be considered to
be the essence. Even if the urgent need for
the money within the specified time is not
set out, if the words used clearly show an
intention of the parties to make time the
essence of the contract, with reference to
payment, time will be held to be the essence
of the contract.”
31. In Saradamani Kandappan (supra), the Hon’ble
Supreme Court after looking into express terms of the
agreement held that parties to the agreement intended to make
time as essence of contract in respect to the payment of balance
consideration which was also manifested from the clauses of the
agreement clearly indicating that payment was to made on the
stipulated dates and even a day delay was not acceptable unless
Patna High Court SA No.317 of 1997 dt.24-03-2026
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the due date declared holiday as evident from the clause
providing payment on immediate working day in case of date of
payment being declared holiday
32. In the present case, clauses relating to forfeiture
and time schedule clearly indicate intention of strict compliance.
The respondent admittedly did not pay the amount within the
stipulated period. It is pertinent to mention here that the
acceptance of earlier instalments cannot automatically amount
to waiver of final stipulation, particularly when the entire
balance remained unpaid within time. The reliance of learned
counsel for the respondent on Gomathinayagam Pillai (supra)
is distinguishable, as in that case conduct clearly established
waiver and in the instant case, no such unequivocal waiver is
proved. Moreover, in K. Narendra (supra), it has been held that
grant of specific performance is discretionary and court must
examine conduct and equity. The appellate court failed to
properly exercise such discretion.
33. In view of the foregoing discussion and the
findings recorded hereinabove, this Court is of the considered
opinion that the judgment and decree dated 21.08.1997 passed
by the learned Appellate Court in Title Appeal No. 04 of 1994
suffer from serious legal infirmities and misapplication of
Patna High Court SA No.317 of 1997 dt.24-03-2026
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settled principles governing appreciation of evidence,
presumption of service, and proof of readiness and willingness
in a suit for specific performance. The learned Appellate Court
reversed the well-reasoned judgment of the learned Trial Court
without properly addressing the material inconsistencies and
without adhering to the legal standards required for grant of
discretionary relief under the Specific Relief Act. The
substantial questions of law framed in this Second Appeal are
accordingly answered in favour of the appellants and against the
respondent-plaintiff. It is held that the finding of the learned
Appellate Court regarding payment of the balance consideration
of Rs.15,000/-, presumption of service of Ext.1 (certificate of
posting), and compliance with the mandatory requirement of
readiness and willingness under Section 16(c) of the Specific
Relief Act are unsustainable in law.
34. Resultantly, the present Second Appeal is allowed.
The judgment and decree dated 21.08.1997 passed by the
learned 3rd Additional District Judge, Bhagalpur in Title Appeal
No.04 of 1994 are hereby set aside, and the judgment and
decree dated 31.08.1990 passed by the learned Subordinate
Judge-I, Bhagalpur in Title Suit No. 178 of 1978 dismissing the
suit is restored and accordingly confirmed.
Patna High Court SA No.317 of 1997 dt.24-03-2026
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35. There shall be no order as to costs.
36. Let the Trial Court Record be transmitted
forthwith to the court concerned.
(Ramesh Chand Malviya, J)
Brajesh Kumar/-
AFR/NAFR AFR CAV DATE 18.02.2026. Uploading Date 24.03.2026 Transmission Date N/A