Husband Can Depose For Wife; Section 120 of Evidence Act Recognizes Spousal Testimony Even Without Written Authority: Punjab & Haryana High Court

“In the context of Section 120 of the Indian Evidence Act, a husband is legally competent to depose on behalf of his wife even in the absence of a written power of attorney, provided the testimony is based on facts within his knowledge. Such spousal testimony cannot be discredited merely because the plaintiff did not step into the witness box’.” – Punjab & Haryana High Court delivered a detailed and precedent-clarifying decision in a civil appeal involving the grant of specific performance of an agreement to sell agricultural land. The court rejected the appeal filed by the legal heirs of the original vendor and upheld the concurrent findings of the lower courts in favour of the plaintiffs, holding that “a vendor who failed to obtain necessary clearances and complete partition formalities cannot question the purchaser’s readiness to perform the contract.” 
 
The dispute revolved around two agreements to sell dated 28.04.1984 and 10.06.1985, whereby defendant Kishan Chand had agreed to sell 417 Kanal 1 Marla of agricultural land to the plaintiffs for ₹4,43,115.62. A substantial amount of ₹1,62,000 was paid as earnest money. Possession was delivered under the agreement, and the plaintiffs installed a tubewell and constructed a room. 
 
The sale deed was to be executed after the vendor obtained Income Tax Clearance Certificate and completed partition formalities, both of which remained unfulfilled. In 1986, the vendor entered into a second agreement with a third party, prompting the plaintiffs to file a suit for specific performance. The trial court decreed the suit on 17.04.1995, and the appellate court confirmed it on 19.08.1998. 
 
This second appeal was filed by the vendor’s legal heirs, primarily challenging the plaintiffs’ alleged failure to prove “readiness and willingness” and objecting to the testimony being led by a general power of attorney holder. 
 
Justice Deepak Gupta addressed several critical legal questions that arise often in specific performance litigation: “Readiness and Willingness Can Be Established Through Spouse – Especially When He Managed Entire Transaction” 
 
The appellants contended that none of the plaintiffs deposed and instead relied upon testimony from Sampooran Singh, the husband of one of the plaintiffs, who was also the father of two others. They argued this testimony could not establish “readiness and willingness” as required under Section 16© of the Specific Relief Act. 
 
Rejecting this contention, the Court held: “Section 120 of the Indian Evidence Act recognizes the competency of a husband to depose on behalf of his wife. This statutory recognition flows from a longstanding legal tradition where the testimony of spouses is not only competent but relevant, especially where one spouse was actively involved in the transaction in question.” 
 
The Court emphasized that Sampooran Singh was involved in the deal from the very beginning, had signed the second agreement, was served the legal notice by the vendor, responded on behalf of the plaintiffs, and was present during the delivery of possession post-partition. Hence, his testimony was both legally admissible and factually credible. 
 
“A spouse who has handled the transaction exclusively can testify regarding readiness and willingness even in a suit for specific performance. The strict rule requiring personal appearance of plaintiff cannot be blindly applied in such familial and practical contexts,” the Court held, distinguishing the judgment in Rajesh Kumar v. Anand Kumar AIR 2024 SC 3017. 
 
“Vendor Who Defaults On Conditions Cannot Deny Performance By Vendees” 
 
The Court decisively held that the plaintiffs had done all that was required of them, while it was the vendor who failed to fulfill mandatory preconditions, such as obtaining the Income Tax Clearance Certificate and ensuring partition mutation in the revenue records. 
 
Citing P. D’Souza v. Shondrilo Naidu, 2005 (1) CCC 131, the Court reiterated: “The readiness and willingness of the buyer must be assessed in light of whether the seller complied with his obligations under the contract. A buyer is not required to perform until the seller does what the agreement requires of him.” 
 
Therefore, the plaintiffs’ continuous demand for sale deed execution after vendor’s non-compliance, along with their long-standing possession, installation of tubewell and constructions, were sufficient to prove readiness. 
 
“Rejection of Previous Suits Does Not Bar Specific Performance – Fresh Suit is Maintainable” 
 
The vendor’s counsel argued that the suit was barred under Order II Rule 2 CPC and Section 11 CPC, citing earlier suits filed by the plaintiffs seeking injunction without seeking specific performance. 
 
The Court ruled: Rejection of plaint under Order VII Rule 11 CPC does not preclude the presentation of a fresh plaint. Prior suits were either rejected or withdrawn and were not adjudicated on merits. Hence, res judicata and Order II Rule 2 do not apply.
 
Referring to Delhi Waqf Board v. Jagdish Kumar Narang (1997) 10 SCC 192 and Sucha Singh Sodhi v. Baldev Raj Walia 2018 (2) RCR (Civil) 78, the Court concluded that the cause of action for specific performance had not crystallized at the time of earlier suits since the vendor had not fulfilled contractual conditions. 

“Defendant No. 2 Not a Bona Fide Purchaser; Possession Never Left Plaintiffs” 
The second purchaser (Defendant No. 2) claimed protection under Section 53-A of the Transfer of Property Act. However, the Court held: “The subsequent purchaser had knowledge of the prior agreement. No actual possession was delivered to him. Agreement dated 17.07.1986 was a collusive act to defeat the plaintiffs’ rights.” 
 
The Court also noted that electricity bills and revenue records confirmed the plaintiffs’ possession. 
 
“Limitation Begins Upon Refusal, Not On Hypothetical Execution Date” 
 
On the limitation plea, the Court noted that the date of execution was conditional, and hence limitation would not begin until refusal or breach by the vendor. 
 
“Where no fixed date is mentioned and performance is contingent on acts to be done by the seller, limitation begins only when the seller refuses or fails to perform such acts,” the Court held. 
 
The High Court upheld the concurrent findings of the lower courts, affirming the decree for specific performance, and dismissed the second appeal by making the following conclusive remark: 
 
“This Court does not find any error or misreading of evidence in the findings of the lower courts. The plaintiffs have performed their part of the contract and proved readiness and willingness. The appeal is devoid of merit.” 

 Date of Decision: April 1, 2025