Bhaskaran Nadar(Died) vs Kesavan Nadar (Died)

in S.A.No.2014/2000

1.Pivin

2.Minor Cibin ... Appellants 1 and 2/ Appellants 1 and 2/ Defendants 2 and 3 in S.A.NO.558/2001 (Cause title accepted vide entry in C.M.P.No.19086 of 2000 ordered dated 16.03.2001 by this Court. The 3rd respondent is removed from the guardianship of the 2nd appellant and the 1st appellant is permitted to act as a guardian for the 2nd appellant) Vs.

1.Kesavan Nadar (died)

2.Baskaran Nadar (died)

3.Cicily

4.Vasini

5.Swamidhas

6.Radhakrishnan ... Respondents 1 to 3/ Respondents 1 to 3/ Plaintiff, Defendant 1, Defendant 4 (R4 to R6 brought on record as legal heirs of the deceased 1st respondent vide order dated 25.08.2009 in M.P.No.1 of 2007) PRAYER IN S.A.No.2014 of 2000 The Second Appeal is filed under Section 100 C.P.C. against the judgment and decree of the learned Additional District Judge, Nagercoil passed in A.S.No.25 of 1999 dated 31.08.2000 confirming the judgment and decree of the learned Subordinate Judge, Kuzithurai passed in O.S.No.113 of 1994 dated 02.04.1997.

PRAYER IN S.A.No.558 of 2001 The second appeal is filed under Section 100 C.P.C. against the judgment and decree of the learned Additional District Judge, Nagercoil passed in A.S.No.26 of 1999 dated 31.08.2000 confirming the judgment and decree dated 02.04.1997 in O.S.No.113 of 1994 on the file of the learned Sub Judge, Kizhithurai.

IN S.A.No.2014 of 2000 !For Appellants ... Mr.V.Raghavachari ^For Respondents ... Mr.S.Sivakumar (4,5and 6) IN S.A.No.558 of 2001 For Appellants :

For Respondents ... Mr.S.Sivakumar (4, 5 and6) :COMMON JUDGMENT The defendants are the appellants. The second appeal S.A.No.2014 of 2000 is filed against the judgment and decree dated 31.08.2000 in A.S.No.25 of 1999 of the learned Additional District Judge, Nagercoil, confirming the judgment and decree dated 02.04.1997 in O.S.No.113 of 1994 of the learned Subordinate Judge, Kuzithurai.

2.The Second Appeal S.A.No.558 of 2001 is filed against the judgment and decree dated 31.08.2000 in A.S.No.26 of 1999 of the learned Additional District Judge, Nagercoil, confirming the judgment and decree dated 02.04.1997 in O.S.No.113 of 1994 of the learned Subordinate Judge, Kuzithurai.

3.The brief facts of the cases are as follows:

The suit in O.S.No.113 of 1994 was filed by the plaintiff for a specific performance of a contract dated 23.09.1993. The first defendant viz., Baskaran Nadar was the owner of the suit property. As he was ill, he was admitted in the hospital and during such time he had obtained a sum of Rs.50,000/- from the plaintiff and later he agreed to sell the property to the plaintiff for a valuable consideration of Rs.75,000/-. He executed a sale agreement on 23.09.1993. Later, the plaintiff came to know that he had also executed certain documents in favour of the defendants 2 to 4 in respect of the same property and refused to execute a sale in pursuant to the sale agreement and therefore, the suit is filed for specific performance.

4.The suit was resisted by the first defendant as well as by the other defendants. The first defendant totally denied the execution of the sale agreement and passing of any consideration. According to the defendants, the brothers of the first defendant were inimical towards the first defendant and they have set up the plaintiff and have created a forged sale agreement and therefore, the sale agreement is not true and genuine.

5.The first defendant is a bachelor and the defendants 2 to 4 are the legal heirs of Thanga Nadar, the first defendant's another brother . The first defendant executed a "Will" in the year 1993 bequeathing his properties to his brothers Thangappan Nadar and Gopalan Nadar and to the defendants 2 to 4. As his brothers Thangappan Nadar and Gopalan Nadar turned inimical, he cancelled the "Will" and sold the suit property to the 2nd defendant and had also adopted the second defendant as his son . Therefore, the case of the defendants is that the sale agreement is not true and genuine and it is a forged one.

6.Based on the above averments, the Trial Court found that the sale agreement, which is marked as Ex.A1, was true and genuine and the same was proved by the plaintiff by examining the agreement holder, scribe, attesting witness, mother and sister of the executant. The Court also found that the 2nd defendant is not a bona fide purchaser for valuable consideration. Aggrieved by which, the first defendant had preferred an appeal in A.S.No.25 of 1999 and the defendants 2 to 4 preferred another appeal in A.S.No.26 of 1999 challenging the finding against them and the first appellate court by its common judgment, confirmed the findings of the trial court and thereby dismissed both the appeals. Against which these appeals are preferred on various grounds.

7.On admission, this Court has formulated the following substantial questions of law:-

S.A.No.2014 of 2000:

"1.Whether the courts below is right in granting a decree for specific performance in the absence of any evidence regarding the same having regard to the specific provisions of Section 16(c) of the Specific Relief Act?

2. Whether the courts below is right in not taking into consideration that the evidence on the side of the respondents are at variance with the specific pleadings in the plaint and the very recitals in Ex.A1?"

S.A.No.558 of 2001:

"Whether the finding of the courts below that the appellants are not bona fide purchasers for value is supported by evidence?"

8.Before going into the merits of the case, the admitted facts and relationship between the parties are as follows:

One Baskaran Nadar, Thanga Nadar, Gopalan Nadar and Thangappan Nadar are brothers. They are the sons of one Cerian Nadar. The Baskaran Nadar is the first defendant. The defendants 2 to 4 are the children and the widow of Thanga Nadar. The plaintiff is the son of one Padmanaban Nadar, who is the brother of the said Cerian Nadar. Therefore, the plaintiff Kesavan Nadar is the cousin brother of the first defendant Baskaran Nadar. The suit property and some other properties absolutely belonged to the said Baskaran Nadar. The suit property, is of an extent of 7. cents of land and four shops in Survey No.146/8 (old Survey No.1817). He had other properties of his own and he executed a "Will" dated 19.04.1993 regarding his properties bequeathing the same to his brothers Thangappan and Gopalan Nadar and to their children and to the children of Thanga Nadar, who are the 2nd and 3rd defendants. On 03.05.1994 he cancelled the "Will" stating that the said Thangappan and Gopalan Nadar turned inimical against him and were trying to grab the property. On 10.06.1994, he adopted the second defendant, who is the son of his brother Thanga Nadar by a registered document.

9.On these background, the plaintiff alleges that the first defendant Baskaran Nadar while admitted in the hospital in the year 1992, obtained certain amounts for his medical treatment and later he agreed to sell the suit property for a sum of Rs.75,000/-. As he had already received a sum of Rs.50,000/- as advance amount and has executed a sale agreement, which is marked as Ex.A1,the plaintiff was ready and willing to pay balance amount and get sale deed executed in his favour.

10.He had examined himself to speak about the circumstances under which, the first defendant has obtained money and executed the sale agreement. He had also examined the scribe, one Baskaran Nair, the attesting witness, one Kunchuperumal to speak about the execution of the sale agreement. He had also examined one Aswini, the sister of the first defendant and one Swarna Muthu, the mother of the first defendant, who was 87 years old, to speak about the factum and the circumstances under which the first defendant agreed to sell the property to the plaintiff.

11.As stated earlier, the first defendant totally denied the execution of the agreement and stated that the said signatures are forged. He would allege that his brothers Thangappan Nadar and Gopalan Nadar turned inimical on cancellation of the "Will" in their favour and they have set up the plaintiff, who is the cousin brother, in creating such false document. It is also alleged by the first defendant that regarding his yet another property the said brothers and the scribe and the attesting witnesses had created a forged sale deed and registered the same in Kerala state and he lodged a complaint with the Police, which was pending investigation.

12.Nevertheless, the trial court found that the plaintiff has proved the execution of sale agreement by examining the scribe, the attester and also the mother and sister of the executant and placed its reliance on Ex.A1. The findings are confirmed by the first appellate court.

13.Pending these second appeals the first defendant died and the 2nd defendant, who is the adopted son as well as the purchaser of the suit property, transposed himself as the appellant.

14.The learned counsel for the appellants would submit that the circumstances of the alleged execution of the sale agreement has to be looked into and the burden is heavily on the plaintiff to prove the alleged sale agreement. The learned counsel pointed out that at the earliest point of time i.e., immediately after receiving the notice from the plaintiff, the defendant had denied the execution of the sale agreement. The learned counsel also pointed out that the mere comparison of the signatures in the alleged sale agreement and the other documents signed by the executant during the relevant period would clearly prove that the signatures are forged.

15.The learned counsel also pointed out that the courts below have compared the signatures of the alleged document with the Vakalat and the written statement, which is not correct.

16.The learned counsel for the appellant submitted that once the signature is denied, the plaintiff is bound to prove it and he relied on a decision of the Supreme Court reported in 2008(4) SCC 530 (Thiruvengadam Pillai Vs. Navaneethammal and another), wherein the Supreme Court has viewed as follows: "17.The decision in Murari Lal and Lalit Popli should not be construed as laying a proposition that the court is bound to compare the disputed and admitted finger impressions and record a finding thereon, irrespective of the condition of the disputed finger impression. When there is a positive denial by the person who is said to have affixed his finger impression and where the finger impression in the disputed document is vague or smudgy or not clear, making it difficult for comparison, the court should hesitate to venture a decision based on its own comparison of the disputed and admitted finger impressions. Further, even in cases where the court is constrained to take up such comparison, it should make a thorough study, if necessary with the assistance of counsel, to ascertain the characteristics, similarities and dissimilarities. Necessarily, the judgment should contain the reasons for any conclusion based on comparison of the thumb impression, if it chooses to record a finding thereon. The court should avoid reaching conclusions based on a mere casual or routine glance or perusal."

17.The learned counsel also relied on a decision of the Supreme Court reported in 2008(7) SCC 310 (Mohammadia Cooperative Building Society Limited Vs. Lakshmi Srinivasa Cooperative Building Society Limited and others), wherein the Supreme Court has held as follows:

"71.Grant of a decree for specific performance of contract is a discretionary relief. There cannot be any doubt whatsoever that the discretion has to be exercised judiciously and not arbitrarily. But for the said purpose, the conduct of the plaintiff plays an important role. The courts ordinarily would not grant any relief in favour of the person who approaches the court with a pair of dirty hands."

18.On the contrary, the learned counsel for the respondents would submit that the document has been proved by examining the scribe as well as the attester. The learned counsel further pointed out that the passing of consideration was also proved by examining the mother and sister of the first defendant and there is a cogent evidence to show that the sale agreement is a genuine document and therefore, the courts below are right in decreeing the suit for specific performance.

19.Heard the rival contentions of the parties.

20.The substantial questions of law were formulated in relation to the provisions of Section 16(c) of the Specific Relief Act and whether the second defendant is the bonofide purchaser. However, another point for consideration arises,is whether the agreement of sale could have been executed by the first defendant in the above said surrounding circumstances.

21.When the execution of the sale agreement is denied, the same has to be proved in the manner known to law.

22.Under Section 68 of the Indian Evidence Act, 1872, if a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution.

Section 73 of Indian Evidence Act reads as follows:

"Comparison of signature, writing or seal with others admitted or proved.- In order to ascertain whether a signature, writing or seal is that of the person by whom it purports to have been written or made, any signature, writing, or seal admitted or proved to the satisfaction of the Court to have been written or made by that person may be compared with the one which is to be proved, although that signature, writing, or seal has not been produced or proved for any other purpose."

23.Before going into the question, whether,the document has been proved as required under section 68 of the Indian Evidence Act, let us examine the way in which the courts below have compared the signatures of the executant with the disputed sale agreement. The trial court has compared the signature of the first defendant in Ex.A1 sale agreement with the signature found in the written statement, vakalat of the first defendant and a partition deed under Ex.A12.The trail court found that "the first defendant used to sign in different manners". It also observed that he used to change his signature often. It has also further found that even the signature found in the vakalat and in the written statement did not tally with one another,therefore, observed that it cannot be said that the first defendant has not signed in Ex.A1.

24.The first appellate court had also compared the signature and would state that on comparison of Ex.A1 with the partition deed of the year 1970, the signature differs on each and every page and therefore, it cannot be said that the first defendant has not signed in the document. The first appellate court had also compared the signature in Exs.B1 and B3, which are the documents produced by the defendants, and found that the signature of the first defendant varies from document to document and the evidence of the attesting witness alone has to be believed.

25.The first defendant had signed in Malayalam. At any stretch of imagination, I do not think that the courts below are well versed with Malayalam language to compare the signatures. More over the signature in Ex.B1,the Will dated 23.09.1993and a cancellation deed under Ex.B3 dated 19.04.1993 were not compared with the alleged sale agreement by the trial court. Pending the first appeal, the first defendant had filed an application to send the documents to expert opinion to compare the signatures. This was dismissed by an order dated 31.08.2000 by the first appellate court stating that the courts are empowered to compare the signatures.

26.In AIR 2008 SC 1541 (Thiruvengada Pillai Vs. Navaneethammal) the Supreme Court has held as follows:

"16.While there is no doubt that Court can compare the disputed handwritting/signature/finger impression with the admitted handwritting/signature/finger impression, such comparison by Court without the assistance of any expert, has always been considered to be hazardous and risky. "

27.Section 45 of Evidence Act relates to "opinion of experts". It provides that when the Court has to form an opinion upon as to the identity of hand writing, the opinion of persons specially skilled in such identity of hand writing are relevant facts and such persons are called experts.

28.No doubt that under section 73 of Evidence Act the Courts are empowered to compare the disputed signatures with the admitted signatures. The admitted signatures of the same period is to be compared with the disputed signatures. While dealing with the matters of the language in which the Court is not familiar with, the Court has to be careful in comparing the signatures. Unless the Courts are satisfied that the characteristics of the language in which it is signed, are familiar with the Court, the Court shall refrain from comparing the signatures.

29.In my considered view, both the Courts have erred in comparing the signatures which are in Malayalam. The executant himself has filed an application to call for expert opinion but the first appellate Court has denied the right. Therefore, the comparison of signature by the Courts below is not sustainable.

30.Coming to the question of proving of execution of the sale agreement, both the courts below have relied on the evidence of P.Ws.1 to 5. Both the courts below seem to have carried away by the evidence of mother and sister, who were examined as P.Ws.4 and 5. Why should a mother and a sister speak against the first defendant, if the execution of the sale agreement is not true? was the question raised by the courts below.

31.It is well settled that a document which is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for, for the purpose of proving its execution. The examination of the scribe is superfluous. It is also pertinent to note that Ex.A1 is not a registered document though it was written in the office of the scribe, which is opposite to the Registrar's office and it is also the case of the plaintiff that the first defendant went to the office of the scribe to execute the document.

32.The examination of the mother and the sister are also superfluous. In my considered view, there is something wrong in the relationship when the mother and the sister had chosen to speak against the first defendant. It is to be noted that during that period, the first defendant was living with the defendants 2 to 4 who are the widow and children of a deceased brother and during that period the first defendant has cancelled a "Will" executed in favour of his brothers and adopted the second defendant and even executed a sale deed in favour of the 2nd defendant. It is also to be noted that the first defendant had lodged a criminal complaint against his brothers, the scribe and the attesting witnesses and also against the plaintiff for an alleged forgery of a sale deed relating to his another property. It is also to be noted that the copy of the complaint was produced before the trial court. But the courts below have rejected the complaint as the same was lodged during the pendency of the suit.

33.The point is,the brothers viz., Gopalan and Thangappan were not in good terms with the first defendant. It is also to be noted that the first defendant was living with the other defendants and naturally the mother and sister had gone to the extent of going into the box to depose against the first defendant. Therefore, the evidence of mother and sister and the scribe are not worthy enough for any consideration.

34.The first defendant had executed a "Will" dated 19.04.1993 in favour of his brothers Thangappan, Gopalan Nadar and also in favour of the children of the deceased brother Thanga Nadar under Ex.B1. On 03.05.1994 under Ex.B3, he revoked the "Will". On 09.05.1994 under Ex.B7 he executed a sale deed in favour of the defendants 2 and 3. On 10.06.1994 under Ex.B6, he adopted the second defendant. The alleged agreement of sale deed is dated 23.09.1993. At the time of execution of the sale agreement the earlier "will" was in force. There is no mention about the "Will", which is a registered one, in the sale agreement, which is an unregistered document. On 27.07.1994, the suit notice was issued under Ex.A6. When the execution of a document is denied by the executant, the burden is heavily on the propounder of the document to prove the same. A document can always be created falsely by obtaining signatures or forging signatures. But the said document when produced in evidence must be able to stand the test of genuineness.

35.In AIR 2008 Supreme Court 1541 (stated supra) the Supreme Court has held "when the execution of an unregistered document put forth by the plaintiff was denied by the defendants, it was for the defendants to establish that the document was forged or concocted, is not a sound proposition. The defendant having denied it the burden is on the plaintiff to prove"

36.While considering such execution the courts have also to consider the surrounding circumstances and the relationship of the parties. The Courts cannot simply relay on the cogent evidence of P.Ws.1 to 5, When law requires examination of at least one attesting witness. Number of witness do not carry any weight.

37.In the present case, the following circumstances has to be taken into consideration:-

I) The first defendant was a bachelor.

ii) He had executed a Will dated 19.04.1993 bequeathing his properties in favour of his brothers Thangappa Nadar, Gopala Nadar and to the children of the deceased brother Thanga Nadar.

Iii) He was living with the widow and children of the deceased brother Thanga Nadar.

iv) He had cancelled the above said Will and executed a sale deed in favour of the second defendant who is the son of the deceased brother.

v) He had also adopted the second defendant.

vi)The mother and the sister had chosen to speak against him regarding the execution of the sale agreement.

38.The above discussion throws a doubt whether the defendant would have executed an agreement of sale in favour of the plaintiff who is the cousin brother.

39.In my considered opinion, Ex.A1, the sale agreement, is a doubtful document and the genuineness of the same has to be looked into on the prevailing circumstances such as the strained relationship between the parties.

40.Both the courts below have concurrently found that Ex.A1 is a genuine document on the strength of the evidence of P.Ws.1 to 5. As stated earlier the evidence of the mother, sister and the scribe are not worth enough to look into. The trial court went to an extent of saying that a mother will not come forward to depose against her own son unless and until there is a truth in the document, forgetting the strained relationship between the parties. As far as the attester is concerned, the antecedents of the witness, which was elicited in the cross examination, was not considered by the courts below.

41.The relief under specific performance is a discretionary relief and even if a small doubt arises about the agreement of sale between the parties, the relief could be refused.

42.Usually the High Court will not interfere with the concurrent findings of the courts below on facts. In a decision of the Supreme Court reported in AIR 2001 SC 3201 (Hafazat Hussain V. Abdul Majeed and others) the Supreme Court has held as follows:

"...The findings recorded by the Trial Court as well as the First Appellate Court was shown to be not only vitiated due to perversity of reasoning but also due to surmises and misreading of the materials on record. On a careful and critical scanning through of the judgment in the Second Appeal, we are unable to agree with the learned counsel for the appellant at any findings of fact concurrently recorded were mechanically interfered with without justification or by transgressing the limitations on the exercise of jurisdiction under Section 100 C.P.C. The reasons assigned by the learned Judge in the High Court for the conclusion arrived at do not suffer from any infirmity warranting our interference in this appeal."

43.In a decision of this Court reported in 1997(1) CTC 360 (Seeni Ammal v. Veerayee Ammal) this Court has held as follows:

"15. Finally, the learned counsel for the respondent made a faint argument that inasmuch as both the Courts below have concurrently held in favour of the plaintiff, it is not open to this Court to interfere with the said concurrent findings under Section 100 of Civil Procedure Code, for which, he relied on the following decisions;

1) A.P.Sagar and others v. Govindaswami Gramani. 1996(1) M.L.J.146

2) O.T.M. O.M. Meyyappa Chettiar v. O.T.M. S.M.Kasi Viswanathan Chettiar and another. 1994(1) M.L.J., S.C.28.

While invoking Section 100 Civil Procedure Code it is not possible for this Court to reappraise or to reassess the evidence. However, the discussion of mine shows that both the Courts below have committed an error in holding that time is not the essence of the contract when Exs.A.1 and A.2 clearly show the intention of the parties that time is the essence of the contract. Likewise, the plaintiff has not proved her case regarding readiness and willingness in order to perform her part of the contract. If the findings of the Courts below are not supported by evidence or passed on misconception or erroneous, and perverse this Court can interfere in the second appeal. Moreover, the relief of specific performance being an equitable relief, the same annot be enforced in favour of a person who fails to prove that she has performed or has always been ready and willing to perform the essential terms of contract which are to be performed by her, other than the terms the performance of which has been prevented or waived by the defendant. In fine, it is clear from the evidence on record that the plaintiff/respondent was not ready and willing to perform her part of the contract and both the Courts below have committed an error in holding in favour of the plaintiff."

44.The judgements of the courts below would show that they were carried away by the evidence of P.Ws.1 to 5 and more particularly by the evidence of the mother and sister for the genuineness of the sale agreement. Both the courts below have compared the signatures, which are in Malayalam, under Section 73 of the Indian Evidence Act and found that though the signatures vary from each and every document the signature in the alleged document is acceptable. The first appellate court had went one step further to state that when the first defendant was intending to adopt the second defendant, the sale executed by him is only sham and nominal. The intention of the first defendant is obviously to safe guard the property from his brothers. It is pertinent to note that the sale deed is earlier to the adoption.

45.Under Section 16 (c) of the Specific Relief Act 1963, the agreement holder has to plead and prove that he was ready and willing to perform his part of the contract. Under Section 20 of the Specific Relief Act, the relief of specific performance is discretionary and the court is not bound to grant such relief merely because it is lawful to do so. More particularly, where the performance of the contract would involve some hardship on the defendant, whereas its non performance would involve no such hardship on the plaintiff. Under those circumstances the court may not exercise its discretion. The surrounding circumstances would show that the first defendant being a bachelor, wants to leave the property to the children of the deceased brother and therefore had cancelled the "Will" and has also adopted the second defendant and earlier to that adoption had also executed a sale deed in favour of the second defendant. The relationship of the parties are so strained that he has to execute the above said documents to the children of the deceased brother. Therefore a genuine doubt arises about the agreement of sale between the parties and the relief could be refused. In my considered view the performance of the contract would involve some hardship on the defendants, whereas its non performance would involve no such hardship on the plaintiff.

46.The courts below had not appreciated the genuineness of the sale deed under Ex.B6 which is a registered document and a sale can be effected by the first defendant in favour of the second defendant. It is also to be noted that at the time of the sale the second defendant was not adopted and nothing wrong in selling the property to the 2nd defendant. The suit notice was issued only thereafter and therefore, the bona fide of the sale under Ex.B6 cannot be doubted. The courts below have also not taken into consideration of the provisions of Section 16 (c) and Section 20 of the Specific Relief Act.

47.The Courts below without considering the above aspects accepted the case of the plaintiffs and even though it is a concurrent finding I am constrained to interfere with the same. The substantial questions of law are answered accordingly.

48.M.P.1 of 2009 in S.A.No.2014 of 2000 is filed to recognized the second defendant as appellant. The first defendant who is the appellant herein had adopted the second defendant as a son and the suit property was also sold to him and therefore it is necessary to transpose the second defendant as appellant as the first defendant is dead. Therefore M.P.No.1 of 2009 is allowed.

49.In the result S.A.No.2014 of 2000 and S.A.No.558 of 2001 are allowed the judgment and decree of the Courts below are set aside. No costs.

nbj To

1.The Additional District Judge, Nagercoil

2.The Subordinate Judge, Kuzithurai.