SA/1887/1991 of R.CHINNADURAI Vs S.RAJALAKSHMI on 18 December 2003

:JUDGMENT

This Second Appeal is directed against the judgment and decree dated29.3.1990 rendered in A.S.No.47 of 1990 by the Court of Additional DistrictJudge, Erode thereby reversing the judgment and decree dated 15.4.1988rendered in O.S.No.878 of 1987 by the Court of District Munsif,Sathyamangalam.

2. Tracing the history of the above second appeal coming to bepreferred, what comes to be known is that the defendant is the appellantherein and the respondent herein has filed a suit for specific performanceagainst the appellant in O.S.No.878 of 1987 on the file of the Court ofDistrict Munsif, Sathyamangalam praying for a decree directing the defendantto execute and register a sale deed for Rs.14,50 0/= over the plaint scheduleproperties in favour of the plaintiff, for delivery of possession and forcosts on averments such as that the defendant is the owner of a site measuring160 feet East-West and 7 0 feet North-South (5.00.5 Hect.) in S.F.86/1; thaton 11.12.1981, the defendant had agreed to sell a common half share in theplaint schedule properties to the plaintiff for a total consideration ofRs.14,500/=; that an agreement of sale was executed and as per the terms andconditions, the defendant receiving a sum of Rs.14,000/- in cash as advanceand as part of sale price on 11.12.1981 itself and agreed to execute aregistered sale deed in favour of the plaintiff within two years from11.12.1981 on receipt of the balance sale consideration of Rs.500/-; that incase the plaintiff fails to perform her part of the contract within the agreedperiod, the defendant shall be entitled to forfeit the advance of Rs.14,000/-; that if the plaintiff is ready and willing to pay the balance of Rs.500/- anddemand execution of sale deed and if the defendant fails to do so, theplaintiff would be entitled to file the suit for specific performance and getnecessary relief; that the defendant had signed the agreement in the presenceof an attestor and the attestor attested the document in the presence of theplaintiff, the defendant and the scribe.

3. The further case of the plaintiff is that she had been always ready and willing to perform her part of the contract of sale dated 11.12.1981, but the defendant had been delaying to perform his part of contract onsome pretext or other; that on 26.11.1983 the plaintiff sent a legal notice tothe defendant demanding the execution of a registered sale deed; that thoughhe received the notice, the defendant did not send any reply; that since thedefendant had not come forward to execute the sale deed as agreed, theplaintiff has filed the suit praying for specific performance furtherdepositing the balance of sale consideration of Rs.500/- into Court by meansof a lodgment.

4. In the written statement filed by the defendant, besides generallydenying the allegations of the plaint, he would further specifically allegethat it is utter falsehood to state that on 11.12.1981 at Sathyamangalam hehad agreed to sell a common half share in the plaint schedule properties tothe plaintiff to a total cash consideration of Rs.14,500/-; that it is equallyfalse to state that the defendant had signed the agreement in the presence ofthe attestor and the attestor attested the document in the presence of theplaintiff, the defendant and the scribe; that he never signed any paper beforethe attestor and scribe; that moreover, he never saw the plaintiff so far;that the terms and conditions stated in the alleged agreement dated 11.12.1981are highly imaginary and suspicious; that this defendant never executed anyagreement on 11.12.1981; that the defendant purchased the suit property alongwith the other half share from one T.R. Sulochana Ammal for Rs.29,000/- andsince he did not have enough money at that time, he approached the plaintiff'shusband S.K.Subramaniam who is close friend of the defendant; that by pledgingthe plaintiff's jewels at Sathyamangalam Cooperative Urban Bank Limited, heraised loan for a sum of Rs.20,000/- and paid to the defendant; that as asecurity for repayment of the loan by the defendant to the plaintiff'shusband, the alleged agreement of sale came into existence; that it representsonly loan transaction; that on 11.1.1982, the defendant paid Rs.2 0,000/- tothe plaintiff's husband, besides paying interest to the Urban Bank ; thatwithin a day or two after 11.1.1982, the plaintiff's husband represented thathe would return the alleged agreement of sale after redeeming the jewels, buthe failed to do so; that due to the recent enmity, he utilised the allegedagreement to file this frivolous suit; that the agreement, under thesecircumstances, is not enforceable; that it is usual to fix up time for monthsonly for performance of the contract; that the very fact that the suitagreement is alleged to be for a period of two years is also an indication ofthe fraudulent nature of the agreement set up by the plaintiff; that theplaintiff has no cause of action against this defendant. On such avermentsthe defendant has prayed to dismiss the suit with costs.

5. The trial Court, based on these pleadings, would frame two issues and two additional issues as follows for determination of all the questions

(1) Whether the plaintiff is entitled to the relief of specific performance?

(2) What relief, is the plaintiff entitled to?

Additional issues:(1)Whether the sale deed dated 11.12.1981 is true and whether it is binding onthe defendant?

(2) Whether it is true that the defendant did not enter into any agreementdated 11.12.1981?

Thereupon, the trial Court would allow the parties to record their evidence,both oral and documentary, wherein on the part of the plaintiff she would notonly examine herself as P.W.1, but also would examine one other witness namelyJafarullah for oral evidence as P.W.2, besides marking four documents asExs.A1 to A4 for documentary evidence, Ex.A1 dated 11.12.1981 being the saleagreement executed by the defendant in favour of the plaintiff for a sum ofRs.14,500/-, Ex.A2 dated 26.11.1983 being the lawyer's notice to the

defendant, Ex.A3 dated 29.11.1983 being the postal Acknowledgement card andEx.A4 dated 5.12.1983 being the reply notice issued by the defendant's lawyerto the plaintiff's lawyer.

6. Likewise, on the part of the defendant he would examine himself as D.W.1 for oral evidence in confirmation of his case put up counter to theplaintiff's case, no documentary evidence would be marked on the part of thedefendant.

7. The Trial Court, having traced the facts and circumstances of the case and in appreciation of all the evidence placed on record in the contextof the facts and circumstances of the case put up by the plaintiff and thedefence case placed on record, has ultimately dismissed the suit with costs,testifying the validity of which the plaintiff has preferred an appeal inA.S.No.47 of 1990 on the file of the Court of District Judge, Erode and thesaid Court also having traced the facts and circumstances as put-forth byparties before the trial Court and the other aspects relevant forconsideration would frame its own points for determination of the appeal viz.:

(1) Whether the sale agreement is true and sustainable?

(2) Whether the defendant is liable to execute the sale deed as per theagreement?

Thereupon, the appellate Court, in appreciation of the facts pleaded and thecircumstances brought-forth and the evidence placed on record by the trialCourt, would allow the appeal thereby reversing the findings of the trialCourt, further directing the defendant to execute the sale deed within aperiod of three months. Aggrieved by the said judgment and decree, thedefendant has now come forward to prefer the above second appeal on certaingrounds as pleaded in the grounds of appeal and this Court has admitted theabove second appeal for determination of the following substantial question oflaw:- "Whether Ex.A1 is admissible in evidence in the absence of examining theavailable attesting witness, when the execution of Ex.A1 was denied by the

8. During arguments, the learned counsel appearing on behalf of theappellant/defendant, besides having elaborately brought forth the facts andcircumstances of the case as pleaded, would ultimately stick to the legalpoint that it is a case wherein no attesting witness has been examined butonly the scribe has been examined as a witness by the plaintiff and while thecase of the plaintiff is that he did not sign the agreement, nor execute thesale agreement, the appellate Court has no reason to differ from the decisionof the trial Court. The learned counsel would further submit that even thoughone Palanisamy, the attesting witness is available, he was not examined by theplaintiff and would hasten to add that Ex.A.1 agreement is a forged one; thatEx.A.1 is not at all an agreement; that all the conditions are only againstthe vendor; that if it is a genuine one, then it would have been signed byboth. On such arguments, the learned counsel for the appellant would pray toset aside the judgment of the first appellate Court and restore that of thetrial Court.

9. On the contrary, on the part of the respondent/plaintiff, the learned counsel would cite two judgments respectively reported in (1) 1998-3-L.W.189 (LAKSHMI AMMAL (DIED) AND 6 OTHERS vs. J.VICTOR AND 3 OTHERSand (2) 1999(I) CTC 36 (SUBBAMMAL vs. MASANAMUTHU THEVAR AND OTHERS).

10. So far as the first judgment cited above is concerned, in a case of similar facts and circumstances wherein the plaintiff has not signed thesaid document therein as per Section 15(a) of the Specific Relief Act and itis the argument of the plaintiff that since he was not a party to theagreement, the suit filed on the basis of Ex.A.1 could not be maintained, thelearned single Judge of this Court would extract from 'A Treatise on theSpecific Performance of Contracts' by The Rt.Hon.Sir Edward Fry G.C.B. to theeffect that "the statute requiring that the agreement, or the Memorandum ornote thereof, shall be signed by the party to be charged therewith, or hisagent, and not requiring that it shall be signed by both parties to thecontract, it has been held, both in Courts of Equity and also in Common LawCourts, that a signature by the party against whom the contract is sought tobe enforced is sufficient." Based on the above observations of the learnedAuthor, the learned single Judge having observed that the said observationsquarely supports the contention of the respondents therein, would hold thatthere is no infirmity in the suit filed by the plaintiff on the basis ofEx.A.1.

11. In the second judgment cited above also, another learned single Judge of this Court, in a case wherein the vendee has filed the suit toenforce the agreement of sale and the agreement containing a ' mark' in theplace for the vendee's signature, the vendee examining himself as a witness and further examining the scribe and attestor to prove the agreement, thelearned Judge has held that the ingredients of agreement to sell have beenestablished and that the agreement was valid and enforceable.

12. Citing the above judgments, the learned counsel for the respondent would exhort that agreements of sale need not be attested; that thedefendant is not disputing the execution but says that the same was executedfor a loan transaction and that subsequently he discharged the loan andtherefore the agreement was not enforced; that the trial Court dismissed thesuit on grounds that (1) the attestor of the document was not examined andtherefore the execution of Ex.A.1 is not proved (2)that in Ex.A1, thesignature is different even from sheet to sheet; (3)that only the defendanthas signed not the vendor and therefore the agreement is not enforceable, butthe appellate Court reversed the finding and decreed the suit against whichthe defendant has preferred the second appeal; that the defendant admitsEx.A.1 but attributes different reason for the same having come intoexistence; that the trial Court says that attestation is necessary for a Willunder Section 63 of the Indian Succession Act; that for a mortgage underSection 59 of the Transfer of Property Act, it should be attested by twowitnesses; that for gift under Section 123 of the Transfer of Property Act, ithas to be attested and without attestation, the document is invalid.

13. Regarding the proof of the document, the learned counsel wouldpoint out Section 68 of the Evidence Act and would submit that even oralagreement is enforceable. On such arguments, the learned counsel for therespondent would pray to dismiss the above appeal.

14. In consideration of the facts pleaded, having regard to thematerials placed on record and upon hearing the learned counsel for both, itcomes to be known that it is the defendant who is the appelant herein and therespondent/plaintiff has filed the suit in O.S.No.878 of 1987 in the trialCourt for specific performance praying for a decree directing the defendant toexecute and register the sale deed for a sale consideration of Rs.14,500/= onthe plaint schedule properties, for delivery of possession and for costswherein the suit property is a site measuring 160x70 on ground that thedefendant agreed to sell the common half share in the plaint schedule propertyto the plaintiff for a total consideration of Rs.14,500/= and Ex.A.1 agreementfor sale was executed; that the defendant had received a sum of Rs.14,000 /=in cash as advance and agreed to execute the sale deed within two years fromthe date of execution on receipt of balance consideration of Rs.500/= and itis this document which is marked as Ex.A.1 dated 1 1.12.1981.

15. The defendant would deny the averments based on which the suit isregistered by the plaintiff stating that the mere execution of the avermentsof the Ex.A.1 was true but it was not true to the facts and circumstances ofthe case but for different purpose and the said purpose was over and thedefendant was not liable to pay anything to the plaintiff but with anavaricious mind, the plaintiff forging the signatures of the defendantunderneath has unreasonably come forward to file the suit and therefore wouldseek to dismiss the suit.

16. The trial Court, having framed the issues and conducting thetrial with due opportunity for parties to be heard, would ultimately arrive atthe conclusion to hold that Ex.A.1 was unreliable, based on which no reliefcould be given thus ultimately dismissing the suit with costs.

17. On appeal, the appellate Court, framing its own points, would reverse the judgment of the trial Court and it is this reversed judgment ofthe lower appellate Court which is being challenged in the above second appealon certain grounds as brought forth by the appellant in the memorandum ofappeal. This Court, at the time of admission of the above second appeal hasformulated the substantial question of law, which is extracted at the end ofpara No.7 supra.

18. A careful study of the subject, a close perusal of the evidenceplaced on record, both oral and documentary, having regard to the othermaterials placed on record and upon hearing the learned counsel for both, ifthe said substantial question of law framed has to be answered adhering to thefacts and circumstances of the case as projected before the trial Court inevidence, a close perusal has to be had into Ex.A.1 which would tell tales ofits coming into being that it has been reduced into writing in Tamil in twostamped papers of Rs.2/= and Rs.0.50 respectively which form part of the firsttwo pages and these two pages have been written in manuscript and the thirdand fourth pages are typed in which the gaps are filled up with relevantparticulars, particularly the sale consideration, the advance amount, the timegranted etc. The sale consideration has been fixed at Rs.14,50 0/= out ofwhich it is recited therein that a sum of Rs.14,000/= has been given inadvance on that day itself and within two years, on payment of the balance sumof Rs.500/=, the plaintiff was to get the registration of the sale done in hisfavour and it is in the form of not an agreement but some undertaking by thedefendant in favour of the plaintiff in which the signatures of the defendantalone are seen, the plaintiff particularly not signing.

19. An agreement must have two parties and both are to sign the same.Only then it is an agreement. For this basic necessity, there may beexceptions under exceptional circumstances as it has been advocated on thepart of the Courts and the case in hand is not falling under the exceptionalcases. Why the plaintiff has not signed the papers is not made clear. It isstated that the defendant volunteered to give it in favour of the plaintiffwhereas it is patently revealed that the signatures of the defendant at eachand every page differs and it could be patently seen. No mention need benecessary, those signatures have absolutely no connection with the signaturesput by the defendant appearing before the Court for deposing evidence asD.W.1. Therefore, under these circumstances, the genuineness of Ex.A.1 has tobe proceeded with in the context of the legal requirements for such a documentparticularly in the absence of any attesting witness being examined as awitness in spite of the sole witness being alive, but the plaintiff has chosenonly the scribe to be examined.

20. Now, adhering to the substantial question of law, it has becomenecessary on the part of this Court to examine the admissibility of Ex.A.1 inevidence in the absence of examining any available attesting witness in thewake of denial of the same by the defendant as per Section 68 of the IndianEvidence Act. Section 68 of the Indian Evidence Act recites:68.Proof of execution of document required by law to be attested: If adocument is required by law to be attested, it shall not be used as evidenceuntil one attesting witness at least has been called for the purpose ofproving its execution, if there be an attesting witness alive, and subject tothe process of the court and capable of giving evidence.

PROVIDED that it shall not be necessary to call an attesting witness in proofof the execution of any document, not being a Will, which has been registeredin accordance with the provisions of the Indian Registration Act, 1908 (XVI of1908), unless its execution by the person by whom it purports to have beenexecuted is specifically denied."

21. The first requirement of the Section is that it must be proved that the document in issue requires attestation in which event at least oneattesting witness must be examined to prove its execution in the event of theattesting witness being alive and capable of giving evidence. For thisgeneral requirement, which is mandatory, there is also an exception when thedocument is not a Will, which has been registered in accordance with theprovisions of the Indian Registration Act unless the execution of the same isspecifically denied.

22. In the case in hand, it has to be ascertained at the outset as to what type of document is Ex.A.1, whether it is a declaration by the defendantsince it bore only the signature of the defendant or is it an agreementwherein both parties must agree to the proposals and conditions and signed thedocument in the presence of the witnesses. Since the nature and character ofthis document has not been ascertained, the lower Courts have taken forgranted according to their whims and fancies either treating the same as anagreement or otherwise which is not the correct method which has to beascertained. So far as the trial Court is concerned it has discredited thedocument and disbelieved the version of the plaintiff and has arrived at theconclusion to hold that the plaintiff had not filed a true case particularlywhen he has come to the Court seeking the relief of specific performance inwhich event he is expected to come with clean hands. Therefore, disbelievingthe version of the plaintiff and discrediting the coming into being of theEx.A.1, the trial Court has ultimately dismissed the suit with costs.

23. But, the first appellate Court, having done the patch-up work,

23. But, the first appellate Court, having done the patch-up work, doing a research into what are all not necessary in making out a document,forgetting the fact that positively it should have assessed as to thenecessary aspects which are essential for making out a document and hasallowed the appeal filed by the plaintiff. Therefore, it must be said thatthe first appellate Court has indulged in unwarranted exercises in stuffingthe frog to imitate a buffalo.

24. Basically, many questions have gone unanswered such as thenecessity for an advance amount of Rs.14,000/= to be paid from out of the saleconsideration of Rs.14,500/= and for the rest of the meagre amount of Rs.500/=to be paid and getting the sale deed registered in favour of the plaintiff, atime of two years being granted. All these are not only improbable butunbelievable as well which could occur only in the event when possession ofthe property is being handed over to the intended purchaser without which, inthe normal circumstances, such a thing cannot happen at all.

25. Having on the background these and many such improbabilities, ifthis Court has to arrive at a conclusion in the above second appeal answeringthe sole substantial question of law framed, it should be spelt out thatEx.A.1 is neither an agreement nor could it be taken as a genuine documentenforceable in law and the lower appellate Court has committed grave injustice in approving the same as genuine and an enforceable instrument and thereforethe only conclusion that this Court could arrive at in the above circumstanceson a overall consideration of the entire case in the light of the substantialquestion of law is to allow the above second appeal setting aside the judgmentand decree of the first appellate Court and hence the following decision.In result,

(i) the above second appeal succeeds and the same is allowed.

(ii) The judgment and decree dated 29.3.1990 rendered in A.S.No.47 of 1990 bythe Court of Additional District Judge, Erode is set aside and the judgmentand decree dated 15.4.1988 rendered in O.S.No.878 of 1 987 by the Court ofDistrict Munsif, Sathyamangalam is restored.

However, in the circumstances of the case, there shall be no order asto costs.

Index: YesInternet: Yes

gr/Rao

To

1. The Additional District Judge,Erode.

2. The District Munsif,Sathyamangalam.