TMI Blog2012 (9) TMI 1177X X X X Extracts X X X X X X X X Extracts X X X X ..... he suit land in favour of plaintiffs for a consideration of ₹ 24,000/- and in advance a sum of ₹ 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 ₹ 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 ₹ 7,000/- and the balance amount of ₹ 14,000/- shall be paid by them on or before 5.4.1992 and thereafter the land in F.A. No.334/1996 question mentioned in the schedule to the plaint shall be sold by the defendant by executing a registered sale-deed. 3. 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 ₹ 7000/- but at that juncture he was going to graze his she-buffaloes and told the plaintiffs that he will obtain ₹ 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 thr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... written- statement. The averments in regard to readiness and willingness have F.A. No.334/1996 also been denied by the defendant. 6. 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 plainti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tention 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. F.A. No.334/1996 11. Having heard learned counsel for the parties, I am of the view that this appeal deserves to be allowed in part. 12. The factum of exec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase 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 F.A. No.334/1996 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 (Ex.P/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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Ex.P/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 F.A. No.334/1996 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 (Ex.P/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 Ex.P/1. 17. If the description of the property mentioned in the document of agreement of sale (Ex.P/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 plaintiff's own admission on account of incorrect descri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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. 20. 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 matt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt. 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 Ex.P/1 is ambiguous and therefore in evidence if plaintiff is saying by describing some other property of defendant, his evidence cannot to be accepted. 24. 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 (Ex.P/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 F.A. No.334/1996 of the property because he is very well aware that property as mentioned in the document (Ex.P/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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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