This second appeal arises out of the judgment and decree dated 08.07.2009 passed by the learned Principal District Judge, Tirunelveli, made in A.S.No.32 of 2008, confirming the Judgment and decree dated 31.01.2008 passed by the learned Sub Court, Sankarankovil in O.S.No.43 of 2005.
2. Brief facts of the case is as follows:-
The defendant is the owner of the suit property. The plaintiff entered into a sale agreement with the defendant with regard to the suit property. The sale price was fixed at Rs.2,12,595/-, on the date of agreement, a sum of Rs.7,595/- was paid as advance. The sale was agreed to be completed within six months. The above said agreement was reduced into writing, which is Ex.A1. In addition to that the defendant handed over the copy of sale deed which stands in his name to the plaintiff. On the strength of that agreement, action was taken to obtain electricity connection. When the plaintiff demanded the defendant to execute sale deed after receiving the balance sale consideration, the defendant evaded and avoid to execute the sale deed. Hence, the plaintiff was constrained to issue legal notice to the defendant on 06.06.2005. Having received the notice, the defendant http://www.judis.nic.in 3 sent a reply by totally denying Ex.A1 agreement. Hence, the plaintiff has come forward the suit for specific performance.
3.On the other hand, denying the allegations of the plaintiff, the defendants contended that they denied the allegations of the plaintiff and stated that the defendant had entered into a sale agreement with regard to the suit property with one Natarajan through Ex.B2 and never execute the suit sale agreement. As per the said sale agreement with the said Natarajan, the sale price was fixed at Rs. 5,78,800/- and he paid a sum of Rs.1,00,000/- as advance. On the payment of the balance sale consideration, sale was to be completed within 30th day of Aadi. The above said agreement was reduced into writing on 04.02.2005. The above said Natarajan, the proposed purchaser is known to the son in law of the plaintiff. The defendants denies execution of the suit sale agreement and contended that the plaintiff forged the Ex.A1 sale agreement. Hence, he prays for the suit has to be dismissed.
4.After contest, the trial Court decreed the suit as prayed for. Aggrieved upon that the defendant preferred the appeal suit before the lower appellate Court and after contest, the lower appellate Court http://www.judis.nic.in 4 dismissed the appeal and confirmed the judgment and decree of the trial Court. Aggrieved upon that the defendant preferred the second appeal before this Court. During the pendency of this appeal, the appellant/defendant died. Hence, the L.Rs. of the defendant/appellant added as parties.
5.At the time of admission, the following Substantial Questions of law were framed by this Court in this appeal for consideration.
a) When the appellant denied his signature in Ex.A1 and when the respondent has not proved the execution of same by calling the attesting witness as contemplated under
Section 68 of Indian Evidence Act whether the Courts below are right in decreeing the suit on the basis of report of handwriting expert alone, which is not a conclusive one?
b)When the evidence available on record clearly shows the plaintiff is not entitled to the discretionary relief of specific performance whether the Courts below are committed error in not considering the issues as contemplated under
Section 20 of the Specific Relief Act,1963? http://www.judis.nic.in 5
6.The learned counsel appearing for the appellants/ defendants would submit that Ex.A1 sale agreement was totally denied by the defendant. In such situation, the burden is heavily placed upon the plaintiff, to prove the execution of Ex.A1 by calling upon the attesting witness as contemplated under
Section 68 of the Indian Evidence Act. However, the plaintiff miserably failed to examine the attestors of Ex.A1. Even though the same witness are alive, the plaintiff has not taken any steps to examine them and instead of relying the expert opinion to projected her case. Both the Courts below have accepted the version of the plaintiff and ignored the provision of
Section 68 of the Indian Evidence Act, which is against law. Further more, the learned counsel appearing for the appellant/defendant would submit that the plaintiff has not proved his readiness and willingness and she has not come with clean hands to get the discretionary relief of specific performance. As per
Section 20 of the Specific Relief Act, 1963, granting of decree without considering
Section 68 of the Evidence Act is totally erroneous. Hence, he sought for allowing the appeal and set aside the decree and judgment passed by the Courts below.
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7.Per contra, the learned counsel appearing for the respondent/plaintiff would submit that the sale agreement was entered into between the plaintiff and defendant on 04.02.2005 and the stipulated time for completion of sale was fixed at six months. The plaintiff demanded execution of sale deed by way of legal notice dated 06.06.2005. The plaintiff demanded execution of sale deed within four months. Since the defendant denied the sale agreement itself by way of reply on 14.06.2005, there is no other go for the plaintiff to redress his grievance through court of law. So, within the stipulated period of time contemplated in the agreement, the plaintiff expressed her readiness and willingness and demanded execution of sale deed, but the defendant totally denied the execution itself. In such circumstances, the readiness and willingness does not find place as primary ingredients. The attestors of Ex.A1 is the husband of the defendant and one Sivasubramaniam. The said Sivasubramaniam is very close to the defendant and her husband and also is neighbour to them. Subsequent to Ex.A1 sale agreement, they have created Ex.B2 on the same date with the same attestors. In such circumstances, it is contended that calling the attestors for proving Ex.A1 is certainly impractical and unnatural. Hence, the plaintiff took steps and prove the thumb impression of the defendant in Ex.A1 by comparison of the http://www.judis.nic.in 7 same with the admitted thumb impression of the defendant. It is known, recognised ways and means to prove the document. In such situation, applied of
Section 68 of the Indian Evidence Act does not arise. It is further contended that as far as the facts of this case is concerned within stipulated period of sale agreement, the plaintiff came forward with the suit for specific performance and proved her case. Hence, as per the Apex Court verdict, the Courts below have correctly invoked discretion judicially in favour of the plaintiff and decreed the suit. There is no infirmity in the findings of the Courts below and there is no question of law involved in this case. Hence, the plaintiff prays for dismissal of the appeal.
8.I have heard the rival contentions and perused the materials available on record.
9.On perusal of the records, it is clear that the scope of the suit is very limited. This is the suit for specific performance. The owner of the suit property, the defendant denied the execution of sale agreement itself. In such situation, the plaintiff, for proving Ex.A1 sale agreement, examined herself as P.W.1 and produced documents Ex.A1 to Ex.A7 and also examined one Subburaman as P.W.2 who is the http://www.judis.nic.in 8 Inspector of police(Finger print) who compared the thumb impression of the defendant affixed in Ex.A1 along with thumb impression obtained from the defendant in the open Court. On the side of the plaintiff, she has not chosen to examine the attestors of the document Ex.A1. She has examined the finger print expert one Subbu Raman to prove the Ex.A1 sale agreement. On the side of the defendant, she has projected different picture stated that she had entered into a sale agreement on the same date with one Natarajan and to prove the same she has produced Ex.B2 which is the Xerox copy of the sale agreement entered into between them. However, she has not chosen to examine the said Natarajan and she has not chosen to produce the original sale agreement of Ex.B2. On the side of the defendant, she herself is examined as D.W.1 and attestors of Ex.B2 one Sivasubramaniam was examined as D.W.2. When the plaintiff has come forward the suit for specific performance with regard to the suit property against the defendant and execution of the suit sale agreement is denied by the defendant, the burden is on the plaintiff to substaniate her case. Both the Courts below came to the conclusion that Ex.A1 sale agreement was proved by the plaintiff on the basis of expert opinion. The lower appellate Court also accepted the version of the trial Court and confirmed the decree and judgment of the trial http://www.judis.nic.in 9 Court. Now, the defendants came forward the second appeal on the ground that Ex.A1 was not proved according to
Section 68 of the Indian Evidence Act and also raised another question with regard to
Section 20 of the Specific Relief Act. Now, let us discuss the same one by one.
10.According to the defendant, Ex.A1 was not proved as per
Section 68 of the Indian Evidence Act by calling upon the attestors of the document. Before going to the merits of the case, let us analyse
Section 68 of the Evidence Act to see whether the Ex.A1 document is proved according to law.
Section 68 of the Indian Evidence Act runs as follows:-
68. Proof of execution of document required by law to be attested.—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, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence:
http://www.judis.nic.in 10 1[Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a Will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied.]
11.According to the
Section 68 of the Indian Evidence Act, if a document is required by law to be attested, that document shall not be used as evidence until atleast one attesting witness has been called for the purpose of proving his execution. So, the document required by law to be attested alone is to be proved in such a way. Ex.A1 sale agreement is not required by law to be attested. In such situation, whether
Section 68 of the Indian Evidence Act is applicable or not has to be analysed. How the documents not required to be attested is to be proved is narrated in the Civil Court Mannual(Central Act) Volume-19, at page No.563, 564 are as follows:-
“Proof of document not required to be attested:- [See also Notes under S.72, infra] Documents not required by law to be attested- Proof of execution-Parties, however, obtaining attestation- Attesting witness need not be examined to prove execution 1966 AE W.R.
http://www.judis.nic.in 11 (H.C)57, A.I.R. 1966 ALL.515.
Mode of proof of document which is required by law to be attested within meaning of S.3, T.P.Act,1882 is different from mode of proof of other kind of documents that are not so required to be attested:(1967) 33 Cut.L.T. 811.
To the deeds not by law required to be attested, S.68 does not apply. They are governed by S.67 which does not lay down any particular mode of proving a particular writing or signature to be in the had of a particular person. They may be proved in any one or more of the following modes:(i)by calling the person who signed or wrote;(ii)by calling the person is whose presence it was signed or written,(iii) by calling handwriting expert;(iv)by calling a person acquainted with the handwriting of the person having purportedly signed or written it whom the document is supposed to be signed or written;(v)by comparing in Court the disputed signature or hand writing with some admitted signatures or writing;(vi)by proof of an admission of the person who is alleged to have signed or written the document that he signed or wrote it;(vii) by the statement of a deceased professional scribe, made in the ordinary course of business, that the signature on the document is that of the particular person,
(viii)by other circumstantial evidence,[1981 http://www.judis.nic.in 12 M.P.L.J.192; 1981 Jab.I.J.388, rel.on] 1983 M.P.L.J.355] It is clear from the same that as per the Madhiya Pradesh High Court decision to the deeds not by law required to be attested, Section 68 of the Indian evidence Act does not apply. They are governed by
Section 67 Indian Evidence Act, which does not lay down any particular mode of proving the document.
12.Now, let us consider the provision of
Section 67 of the Indian Evidence Act.
Section 67 of the Indian Evidence Act, which runs as follows:-
67. Proof of signature and handwriting of person alleged to have signed or written document produced.
If a document is alleged to be signed or to have been written wholly or in part by any person, the signature or the handwriting of so much of the document as is alleged to be in that person’s handwriting must be proved to be in his handwriting.
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13.In this regard, the Division Bench of this Court in the ruling reported in 1993(2) L.W. 587 in KUPPUSAMY PILLAI Vs. K.NATARAJAN AND ANOTHER as follows:-
“It is well settled that the proof of a documents genuineness is the proof of its authorship to be proved like any other fact such proof in India can be direct or circumstantial.
it may also be internal evidence, afforded by the document's contents. The language of S.67 indicates that proof of signatures on a document cannot extend to its contents' genuineness when the document is written in the handwriting of some one else; signatures are proved by examining that person; handwriting written wholly or partly by a person, is proved by examining the person; where signatures are proved but the contents genuineness is in dispute, it is all the more necessary that its author or scribe is examined to enable the other party to cross examined him:(1993-2(112 Mad.L.W. 587(D.B.).
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14.In the above said Division Bench Judgment of our High Court, the mode of proof of document which are not required by law to be attested by any other method by examining the attestor or proved by one of the modes under
Section 5 and under
Section 47 of the Indian Evidence Act.
Section 5 of the Evidence Act states that the evidence may be given of fact in issue and relevant facts.
Section 47 of the Evidence Act states about the opinion as to hand writing is when relevant. So, it is to be seen whether the document Ex.A1 was proved under
Section 47 of the Evidence Act. Both the Courts below relied on
Section 47 of the Evidence Act and accepted the expert opinion given by P.W.2 and came to the conclusion that Ex.A1 was proved. It is pointed out that the defendant has not stated that P.W.2 has not properly examined, Ex.A1 with the admitted thumb impression of the defendant. The only contention on the side of the defendant is that
Section 68 of the Indian Evidence Act is not followed by the plaintiff and both the Courts below failed to analyse the same proper. When Ex.A1 sale agreement was not required by law to be attested by witness, in such situation,
Section 68 of the Indian Evidence Act will not apply. So, mode of proof contemplated in
Section 67 of Evidence Act alone is applicable. As per our Division Bench decision, the plaintiff http://www.judis.nic.in 15 invoked
Section 47 of the Evidence Act, which is accepted by the trial Court as well as the first appellate Court. There is no infirmity elicited by the defendant in the evidence of P.W.2 and documents produced by him as Ex.C1 to Ex.C3. Further, P.W.2, the finger print expert has narrated the point for identity of the thumb impression both in admitted thumb impression and disputed thumb impression. The reason adduced by the Courts below for accepting the evidence of P.W.2 and his opinion Ex.C-3 are well reasoned. Hence, this Court is of the view that there is no infirmity in the findings of the Courts below. Therefore, this Court comes to the conclusion that the first substantial question of law is not sustainable and the same is answered against the appellants.
15.The 2nd substantial question of law raised on the side of the appellant/defendant is that the Courts below failed to consider
Section 20 of the Specific Relief Act. In support of his argument, the learned counsel relied on the ruling reported in 1987 (Supp) Supreme Court Cases 345 in K.RAJAIAH Vs. STATE OF ANDHRA PRADESH AND OTHERS, wherein it is held as follows:-
“Motive of the suit for specific performance should be taken into account by Court.” http://www.judis.nic.in 16 In Another Ruling reported in 2014 (4) CTC 290 in FAROOQUE DADABHOY Vs. DR.USHA S. BHAT, it is held as follows:-
“14.(a) Sub Section (2) of
Section 20 of the Specific Relief Act gives discretion to the Court not to enforce Specific Performance in case the contract gives an unfair advantage to the plaintiff over the defendant or it is inequitable.” and in another ruling reported in 1996 (5) SCC 589 in LOURDU MARI DAVID AND OTHERS Vs. LOUIS CHINNAYA AROGIASWAMY AND OTHERS, it is held as follows:-
“The Division Bench also agreed with the learned Single Judge and held that the third respondent had no knowledge whatever of the plaintiff's agreement and, therefore, he was a bona fide purchaser for value without notice.
This is a concurrent finding of fact after appreciation of evidence. It would thus be seen that on both the grounds, the Courts below rightly refused to exercise the discretion on legal principles to grant specific performance. It does not, therefore, warrant interference.” http://www.judis.nic.in 17
16.Relying on the above said rulings, the learned counsel appearing for the appellant contends that under
Section 20 of the Specific Relief Act unless and until, the plaintiff comes to Court with clean hands, the plea under the said provision of Specific Relief Act should not be entertained. It is also contended by the appellants/defendants that the plaintiff has come with ulterior motive and the same should be taken into consideration. In such circumstances, it is to be seen whether the rulings relied upon by the appellants/defendants are relevant to the facts of this case. In the case on hand, the contention of the plaintiff is that Ex.A1 sale agreement was executed by the defendant Mookkammal and the thumb impression found in Ex.A1 sale agreement is that of the defendant Mookkammal. The plaintiff by examining P.W.2 handwriting expert has proved the said contention. On the other hand, the claim of the defendant is that Ex.A1 sale agreement is forged and fabricated document created by the plaintiff for the purpose of this case. In such circumstances, the plaintiff on whom the initial burden lies discharged the same by examining herself as P.W.1 and handwriting expert as P.W.2 to prove the execution of Ex.A1 sale agreement. On the other hand, the defendants has not taken any steps to disprove the claim of http://www.judis.nic.in 18 the plaintiff and to prove Ex.A1 is fabricated document. The case of the defendants is that on the alleged date when Ex.A1 is stated to be executed, she entered into sale agreement in respect of the suit property with one Natarajan under Ex.B2 Sale agreement. However, the defendants has not let in any evidence to substantiate her claim.
In such circumstances, there is no materials available to prove any ulterior motive behind the suit of the plaintiff and that any unfair advantage will accrue to the plaintiff if specific performance is granted as sought for in the suit. In such circumstances, the above said three citations relied on by the appellants are not applicable to the facts of this case.
17.On the other hand, the learned counsel appearing for the respondent/plaintiff relied upon the ruling, which is reported in AIR 2015 SUPREME COURT 580 in ZARINA SIDDIQUI Vs. A.RAMALINGAM alias R.AMARNATHAN, wherein it is held as follows:-
“34.The equitable discretion to grant or not to grant a relief for specific performance also depends upon the conduct of the parties.
The necessary ingredient has to be proved and established by the plaintiff so that discretion would be exercised judiciously in favour of the http://www.judis.nic.in 19 plaintiff. At the same time, if the defendant does not come with clean hands and suppresses material facts and evidence and misled the Court then such discretion should not be exercised by refusing to grant specific performance.” Another two citations referred on the side of the respondent/plaintiff in 2015 (1) SCC 597 and 2014 (3) MWN Civil 711 are not applicable to the facts of this case.
18.As per the latest verdict of the Apex Court, granting of relief of specific performance depends upon the conduct of parties and the Court should exercise the discretion judicially and only when the necessary ingredient was proved and established by the plaintiff, the discretion should be exercised. In such situation, if the defendant does not come with clean hands and suppressed the material facts and misled the Court, such discretion should not be exercised by refusing granted specific performance. In this case, on seeing Ex.A1 and Ex.B2, they reveal that both are sale agreements. Ex.A1 is executed on the Rs.20/- stamp paper bearing serial No.656 dated 04.02.2005 which stands in the name of Mariammal/plaintiff. Ex.B2 which is also executed in the Rs.20/- stamp paper bearing serial No.657 of the same date. Ex.A1 consists of two pages, the first page in the stamp http://www.judis.nic.in 20 paper and the second page in plain sheet. Ex.B2 consists of three pages, the first page in the stamp paper and other two pages in the plain papers. Both the stamp papers were sold by same stamp vendor, but the letters written in the endorsement of the stamp vendor differs.
19.In both the agreement, attestors are husband of defendant Mookkammal and one Sivsubramaniam examined as D.W.2. The said Sivasubramaniam has clearly and categorically admitted in his evidence that “gpujpthjp K:f;fk;khspd; tPl;ow;F vjph; tPl;oy; ehd; FoapUf;fpnwd;/ K:f;fk;khsplk; vdf;F 10 tUl';fshf gHf;fk;/ gpujpthjp jd;Dila fzth; bghparhkp brl;oahh; MfpnahUld; vdf;F 10 tUl';fshf gHf;fk;/ The evidence of D.W.1 corroborated the evidence of D.W.2 Sivasubramaniam that vdf;F gj;J tUlkhf gHf;fk;. vd; fzth; gj;jpuk; Kof;ft[k;. ntW vd;d fhuz';fSf;fhft[k; rptRg;gpukzpa gps;isiajhd; miHj;Jr; bry;thh;/ rptRg;gpukzpagps;isia ,e;ePjpkd;wj;jpw;F rhl;rp brhy;y ehd; Tg;gpl;lhy; tUthh;/ So, the evidence of D.W.1 and D.W.2 reveal that D.W.2 is an interested witness, so the evidence of D.W.2 is no way helpful to the case of the defendant as he is very close to the defendant. In such situation, the plaintiff avoided to examine D.W.2 on her side as witness. Therefore, she invoked
Section 47 of the http://www.judis.nic.in 21 Evidence Act to prove that in order to defeat the claim of the plaintiff, the defendant has suppressed the material facts and evidence to mislead the Court. In such situation, as per the Apex Court verdict in ZARINA SIDDIQUE Vs. RAMALINGAM case,(stated supra)
Section 20 of the Specific Relief Act is not applicable to the facts of this case. Further more, D.W.1 herself admitted in her cross examination which runs as follows:-
“1993?y; fpuak; th';fpndhk;/ nkw;go fpuak; U:.85.820/- f;F gpuhJ jgrpy; brhj;ij 1993-y; fpuak; th';fpndd;;/ fpiua fhyj;jpypUe;J j;wnghJtiu xU g';F kjpg;g[ ToapUf;Fkh vd;why; me;j kjpg;g[jhd; cs;sJ/ Rw;wpa[s;s epy';fis gpw egh;fSf;F tpw;gid bra;ag;gl;Ls;sJ/ vd;d kjpg;gpw;F tpw;gid bra;ag;gl;Ls;sJ vd;W vdf;F bjhpahJ/”
20.The defendant herself has not whispered anything with regard to enhancement of value of the suit property. In such situation, the contention that unfair advantage to the plaintiff by escalation of price will accepted does not arise. Thus, both the Courts below exercised the discretion under
Section 20 of the Specific Relief Act judicially and arrived at a correct conclusion and as there is no http://www.judis.nic.in 22 infirmity in the finding, the second substantial question of law raised by the defendant is not sustainable and the same is also answered against the appellants. In view of the above said discussions and consideration of the materials on record, this Court does not find any merit in the second appeal and as the substantial question of law is answered against the appellants. Therefore, the second appeal has to fail. The point is answered accordingly.
21.In the result, the second appeal is dismissed. No costs. The Judgment and Decree passed by the courts below is hereby confirmed.
11.08.2018 rrg To
1.The Principal District Court, Thirunelveli.
2.The Sub Court, Sankarankovil.
http://www.judis.nic.in 23 S.BASKARAN,J., rrg Judgment in S.A.(MD)No.341 of 2014 11.08.2018 http://www.judis.nic.in