Bombay High Court
Surendra S/O Anandrao Wankhede vs Smt. Chandrabhaga Wd/O Dhondba ... on 11 August, 2017
Author: A.S. Chandurkar
Bench: A.S. Chandurkar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.
SECOND APPEAL NO.505 OF 2011
APPELLANT: Surendra son of Anandrao Wankhede,
Aged about 53 years, Occ. Agriculturist,
(Ori. Plaintiff)
Resident of Kandri, Kanhan, District
Nagpur.
-VERSUS-
RESPONDENTS: 1. Smt. Chandrabhaga widow of Dhondba
(Ori. Defendants) Wankhede, Aged about 66 years, C/o
Shadeo Rangari, near Corporation Well,
P.O. Panchasheel Nagar, Nagpur (Dead).
2. Smt. Gayabai wife of Shadeo Rangari,
Aged about Major, Occ.: Agriculturist,
3. Shri Chandramani Son of Shadeo
Rangari, Aged about Major, Occ. :
Agriculturist,
Respondent Nos.2 and 3 are resident of
near Corporation Well, Baba Budha
Nagar, P.O. Panchasheel Nagar, Nagpur.
Shri A. Shelat, Advocate for the appellant.
Shri M. B. Naidu, Advocate for the respondent nos.2 & 3.
CORAM: A.S. CHANDURKAR, J.
DATED: AUGUST 11, 2017.
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ORAL JUDGMENT :
1. This appeal has been filed by the original plaintiff who is aggrieved by the decree passed by the trial Court refusing the relief of specific performance and granting the alternate relief of refund of earnest amount. Said decree has been affirmed by the appellate Court.
2. The brief facts necessary for deciding the appeal are that according to the plaintiff, he was an agriculturist and was owning agricultural land. The defendant no.1 who was the owner of Survey No.40 admeasuring 4 ½ acres situated at mouza Narsala entered into an agreement to sell the said land for consideration of Rs.1,71,000/-. This agreement is dated 6-4-1993. The earnest amount paid was Rs.10,000/- and the sale deed was to be executed within a period of three months from said date. According to the plaintiff, the possession of the suit land was delivered to him on the date of the agreement. After the said agreement, the plaintiff requested the defendant no.1 to execute the sale deed, but this was avoided by her. The plaintiff claims that the defendant no.1 informed him that her family was in some trouble and therefore, she was in need of Rs.40,000/-. Accordingly, on 25-6-1993 an amount of Rs.40,000/- was further ::: Uploaded on - 28/08/2017 ::: Downloaded on - 29/08/2017 23:22:59 ::: sa505.11.odt 3/16 paid to the defendant no.1 who acknowledged the same in writing and by putting her thumb impression. The period to execute the sale deed was extended till 30-10-1994. As the defendant no.1 refused to complete the transaction,the plaintiff on 31-10-1994 filed suit for specific performance.
3. In the written statement filed on behalf of the defendants, it was pleaded that the suit field was the ancestral property having been purchased by the husband of the defendant no.1 along with her on 11-5-1949. The entire consideration was paid by her husband as the defendant no.1 had no other source of income. According to the defendants, the plaintiff was the nephew of the defendant no.1 and hence, in view of that relationship, a transaction dated 6-4-1993 was entered into. It was pleaded that the defendant no.1 was an illiterate lady and in view of the fiduciary relationship between the parties, the plaintiff had taken advantage of the situation. The original agreement dated 6-4-1993 was not placed on record but instead a different document was filed on record. It was denied that the plaintiff had taken any steps to complete the transaction. The added portion in the agreement dated 25-6-1993 was denied by the said defendants. It was, therefore, prayed that the suit was liable to be dismissed. 4 The trial Court after considering the evidence on ::: Uploaded on - 28/08/2017 ::: Downloaded on - 29/08/2017 23:22:59 ::: sa505.11.odt 4/16 record came to the conclusion that the agreement dated 6-4-1993 and payment of Rs.10,000/- to the defendant no.1 was duly proved. It, however, held that the payment of Rs.40,000/- to the defendant no.1 on 25-6-1993 was not proved. It then held that the plaintiff was not ready and willing to perform his part of the contract. On account of the material alterations, the contract dated 6-4-1993 became void. The trial Court, therefore, refused to grant the relief of specific performance but instead directed the refund of earnest amount. The first appellate Court confirmed the said decree.
5. This appeal was admitted on the following substantial question of law:
Whether the Courts below have committed an error of law in holding that the plaintiff was required to prove the contents of the additions below the agreement to sell at Exhibit-114?
6. Shri A. Shelat, learned Counsel for the appellant - plaintiff submitted that the agreement dated 6-4-1993 was held to be duly proved by both the Courts. Though the defendant no.1 had put her thumb impression on the added portion of the agreement dated 25-6-1993 by which the amount of Rs.40,000/- was further paid and the period to execute the sale deed was extended, the defendant no.1 denied putting her thumb ::: Uploaded on - 28/08/2017 ::: Downloaded on - 29/08/2017 23:22:59 ::: sa505.11.odt 5/16 impression. The plaintiff was required to take various steps to compel the defendant no.1 to give a specimen of her thumb impression. After she was so directed by the trial Court her specimen thumb impression was taken and the hand writing expert gave his report that the thumb impression on the added portion dated 25-6-1993 matched with the specimen thumb impression. He, therefore, submitted that once it was found that the defendant no.1 had put her thumb impression on the added portion of the agreement, it was not necessary to again prove the contents of that added portion. In fact, it was for the defendant no.1 to explain as to how she had put her thumb impression on the added portion of the agreement. According to him, the agreement at Exhibit-114 was duly proved in its entirety and, therefore, both the Courts committed an error while holding otherwise. He referred to the evidence on record to indicate the manner in which payment of Rs.40,000/- was made and the time to complete the transaction was extended. Except bare denial in the written statement, there was no pleading by the defendant no.1 to explain the presence of her thumb impression. In that regard, the learned Counsel placed reliance on the following decisions.
(1) Shri Jugalkishore Jiwandas Arora vs. Shri Sunil Vinayakrao Kokje & anr. 2006(6) ALL MR 576. (2) Asudamal vs. Kisanrao 2003(4) Mh.L.J. 134. (3) Dalchand Mulchand and others vs. Hasanbi W/o ::: Uploaded on - 28/08/2017 ::: Downloaded on - 29/08/2017 23:22:59 ::: sa505.11.odt 6/16 Ali Razakhan and others AIR 1938 Nagpur 152.
(4) Alapati Sivaramkrishnayya v. Alapati Kasiviswanadham and others AIR 1957 Andh Pra.584.
(5) Dattatraya v. Rangnath AIR 1971 SC 2548. (6) Narbada Devi Gupta v. Birendra Kumar Jaiswal and anr. AIR 2004 SC 175.
7. It was then submitted that the agreement having been duly proved, the suit was immediately filed on 31-10-1994 which was immediately after the date fixed for executing the sale deed.
The plaintiff was always ready and willing to perform his part of the agreement. The appellate Court rightly held that the plaintiff was always ready and willing perform his part of the agreement. The payment of Rs.40,000/- was also proved and merely because witnesses to the added portion were not examined, the same would not take away its legal effect. It was not necessary to examine the said witnesses as the amount of Rs.40,000/- was not paid in their presence. It was then submitted that as the agreement has been proved and it was also found that the plaintiff was ready and willing to perform his part of the agreement, the decree for specific performance deserves to be granted. Even if it was assumed that the defendant no.1 had purchased the suit property along with her husband, a decree to the extent of the share of the defendant no.1 could always be passed. According to him, the defendant no.1 had 3/4th share in the suit property. For ::: Uploaded on - 28/08/2017 ::: Downloaded on - 29/08/2017 23:22:59 ::: sa505.11.odt 7/16 said purpose, the learned Counsel placed reliance on the decision in Kartar Singh v. Harjinder Singh and others AIR 990 SC 854. It was, therefore, submitted that the plaintiff was entitled for a decree of specific performance.
8. Shri M. B. Naidu, learned Counsel for the respondents opposed the aforesaid submissions. According to him, though it was the case of the plaintiff that the defendant no.1 was the sole owner of the suit property, the defendant Nos.1 & 2 were joined as the defendants. He submitted that the plaintiff being the nephew of the defendant no.1, he was aware that the suit property was a joint family property and hence, the other sharers were also joined as defendants. According to him, by virtue of the amended provisions of the Maharashtra Stamp Act, the agreement in question was not sufficiently stamped as required. Though it was claimed that the plaintiff had been put in possession on the basis of the agreement, for want of adequate stamp duty, it could not be taken into consideration. He then submitted that the added portion of the agreement bearing the date 25-6-1993 and its contents were not duly proved. According to him, as per the order below Exhibit-110, the agreement was exhibited to the extent of the portion scribed on 6-4-1993. As the defendant no.1 was an illiterate lady and there was a dispute raised with regard to the ::: Uploaded on - 28/08/2017 ::: Downloaded on - 29/08/2017 23:22:59 ::: sa505.11.odt 8/16 contents of the added portion, it was necessary to prove the contents of that portion. Even if it was assumed that the hand writing experts had held both the thumb impressions to belong to the defendant no.1, that did not dispense with the necessity of proving the contents preceding it. He submitted that a false story had been cooked up by the plaintiff that due to disputes in the family, the defendant no.1 was in need of Rs.40,000/-. The alleged arrest of the family members was in July 1993 while the added portion was alleged to have been scribed on 25-6-1993. He, therefore, submitted that as the contents of the added portion were not proved, the evidence given by the experts with regard to that thumb impression did not have any further value. The learned Counsel then submitted that there being various inconsistencies in evidence of the plaintiff, it was clear that he had not approached to the Court with clean hands and, therefore, not entitled for the discretionary relief of specific performance. Moreover, in absence of any consent being obtained by other co- sharers the agreement itself could not be acted upon. It was urged that no steps whatsoever were taken by the plaintiff for completing the transaction. No notice was ever issued to demonstrate readiness and willingness to perform the agreement. The witnesses in whose presence Rs.40,000/- were paid were not ::: Uploaded on - 28/08/2017 ::: Downloaded on - 29/08/2017 23:22:59 ::: sa505.11.odt 9/16 examined. It was, therefore, submitted that both the Courts rightly refused to grant the relief of specific performance. The learned Counsel also placed reliance on the following decisions:
(1) Pemmada vs. Youngmen's Vysya Asso. 2015(6) Mh.L.J. (2) Ramji Dayawala and Sons (P) Ltd. v. Invest Import AIR 1981 SC 2085.
(3) Badri Narayanan and others vs Rajabagyathammal and others (1996) 7 SCC 101.
(4) Sanman Trade Impex Pvt. Ltd. Vs. State of Maharashtra and others 2005(1) Mh.L.J. 1037. (5) Sheshrao Bhikaji Kale vs. Damodar Pandhare 2004(3) Mh.L.J. 357.
(6) Manjari Devi v. Usha Devi and others AIR 2014 Chhattisgarh 22.
(7) Syed Abdul Gani v. Sajjida Begum and anr. 2017(2) Civil LJ 139.
(8) Prakash Ramkrishna Khadse & ors vs. Manikrao Ramaji Sonwane & ors 2009(6) ALL MR 166.
(9) Padmakumari and others vs. Dasayyan and others 2016(2) Mh.L.J. 307.
9. In reply, the learned Counsel for the appellant submitted that the aspect of insufficient stamp duty was never pleaded nor raised at any point earlier. It was sought to be raised for the first time in this appeal. There was also no evidence led by the defendant no.1 to indicate as to in what manner the plaintiff had taken advantage of her illiteracy. It was also submitted that the decree as passed could be with regard to the share of the defendant no.1 and by balancing the equities, higher consideration could be directed to be paid.
10. I have heard the learned Counsel for the parties at ::: Uploaded on - 28/08/2017 ::: Downloaded on - 29/08/2017 23:22:59 ::: sa505.11.odt 10/16 length and with their assistance, I have also perused the records of the case. I have given due consideration to their respective submissions.
11. The case of the plaintiff is based on the agreement dated 6-4-1993 at Exhibit-114. According to the plaintiff, on 25-6-1993, the time to execute the sale deed came to be extended by putting an addenda on the said agreement. The defendants denied entire agreement. In the deposition of the plaintiff at Exh.78, the agreement dated 6-4-1993 alongwith thumb impression of Chandrabhagabai was marked as Article 'A'. After the evidence was recorded, the plaintiff moved an application below Exhibit-110 praying that the document dated 6-4-1993 executed by Chandrabhagabai be exhibited. The trial Court by its order dated 29-9-2003 directed the agreement of sale dated 6-4- 1993 which was marked as Article 'A' be exhibited. Accordingly, the agreement of sale was given Exhibit-114. This order was challenged by the defendants by filing Writ Petition No.1857/2004. The said writ petition came to be withdrawn on 29-6-2004.
From the aforesaid, it is clear that the first portion of the agreement scribed on 6-4-1993 is marked at Exhibit.114. However, the addenda dated 25-6-1993 bearing thumb impression ::: Uploaded on - 28/08/2017 ::: Downloaded on - 29/08/2017 23:22:59 ::: sa505.11.odt 11/16 of Chandrabhagabai was not exhibited.
12. The defendants moved an application below Exhibit-54 and prayed that the agreement of sale dated 6-4-1993 be sent to the Government Hand Writing expert for its opinion. The trial Court on 6-7-2000 allowed this application for seeking opinion as to whether thumb marks appearing on the agreement dated 6-4-1993 and the addenda dated 25-6-1993 were of the defendant no.1. The defendants, however, could not pay the charges of obtaining the opinion of the Government Finger Print expert. The plaintiff, therefore, had moved another application in that which came to be rejected. This order was challenged in Writ Petition No.636/2005 and on 7-8-2006 the plaintiff was permitted to pay necessary charges and on such payment, the documents were directed to be sent for obtaining such opinion.
13. Thereafter the defendant no.1 avoided to appear before the Court for giving her specimen signature. Ultimately, on 1-9-2007, the trial Court passed an order below Exhibit-1 after which the thumb impression of Chandrabhagabai came to be obtained. Thereafter the Government Hand Writing expert submitted his opinion and opined that the thumb impression on the agreement dated 6-4-1993 was of the same person whose thumb impression was placed on the addenda dated 25-6-1993. ::: Uploaded on - 28/08/2017 ::: Downloaded on - 29/08/2017 23:22:59 ::: sa505.11.odt 12/16 Thus, according to the expert, both the thumb impressions on the document at Exhibit 114 were of the same person. It is in the light of this opinion that substantial question of law is framed as regards the proof of the contents of the addenda below the agreement of sale at Exhibit-114.
14. While considering the aforesaid question, it is necessary to refer to the observations of the Hon'ble Supreme Court in its decision in Ramji Dayawala and Sons (supra). While considering the question as to whether proof of handwriting and execution of the document would furnish evidence of the truth of the facts or contents of the document, in para 16 it has been observed thus:
"16...................................................................... If the truth of the facts stated in a document is in issue mere proof of the handwriting and execution of the document would not furnish evidence of the truth of the facts or contents of the document.? The truth or otherwise of the facts or contents so stated would have to be proved by admissible evidence, i.e. by the evidence of those persons who can vouchsafe for the truth of the facts in issue.............................................................."
In Badrinarayan and others (supra), it was observed that when the executant was an illiterate person who had put his thumb impression on the concerned document, unless it was established that the recitals in the document were read out and explained to ::: Uploaded on - 28/08/2017 ::: Downloaded on - 29/08/2017 23:22:59 ::: sa505.11.odt 13/16 the said person, he could not be deemed to have assented to such contents.
In the light of the aforesaid legal position, the observations of the Division Bench in Dalchand Mulchand and others and Alapati Sivaramakrishnayya (supra) do not assist the case of the plaintiff. Though the learned Counsel for the plaintiff relied upon the observations made in paragraph 5 of the judgment of the Hon'ble Supreme Court in Dattatraya (supra), considering the facts of that case and as the added portion had been denied by the defendants herein, ratio of that decision cannot be made applicable to the facts of the present case. Similarly, the decision in Narbada Devi Gupta (supra) is also distinguishable in the light of the facts of that case.
15. Even the oral evidence on record when considered in the light of the addenda dated 25-6-1993, it is clear that the same is insufficient to accept the case of the plaintiff. In his deposition at Exhibit-78, the plaintiff stated that after the initial agreement dated 6-4-1993 was entered into, there was tension in the defendants family due to which some family members were arrested and detained in the police station. Thereafter, the defendant no.1 had approached the plaintiff and stated that she was in need of money. When Rs.40,000/- were paid to the ::: Uploaded on - 28/08/2017 ::: Downloaded on - 29/08/2017 23:22:59 ::: sa505.11.odt 14/16 defendant no.1, two persons namely Shri Itankar and Shri Tulsidas were present. These two persons were, however, not examined by the plaintiff. In his cross-examination the plaintiff admitted that within three months of the agreement dated 6-4-1993 he did not issue any notice to the defendant no.1 for having the sale-deed executed. He also admitted that the family members of the defendants were arrested during the period of July to August, 1993. He then stated that his statement made in the examination- in-chief that after the arrest of some family members, the defendant no.1 had come to him was not correct. Though Rs.40,000/- were paid in cash as that amount was available with him, he did not place on record his income tax returns.
The defendant no.1 examined herself at Exhibit-91. She stated that the plaintiff was her nephew. Only an amount of Rs.10,000/- was paid by the plaintiff as part consideration. The plaintiff did not get the sale deed executed within the period of three months as had been agreed.
16. From the aforesaid evidence, it can be seen that even the surrounding circumstances leading to the execution of the subsequent agreement on 25-6-1993 have not been duly proved. The various circumstances such as absence of examining the two witnesses in whose presence amount of Rs.40,000/- was paid, ::: Uploaded on - 28/08/2017 ::: Downloaded on - 29/08/2017 23:22:59 ::: sa505.11.odt 15/16 arrest of the defendants family members in July - August, 1993 when the addenda was already said to have been signed on 25-6-1993 coupled with absence of any steps being taken by the plaintiff to have the sale-deed executed when according to him, he was ready with the balance consideration are factors that cannot be ignored. Thus, when the entire evidence on record is taken into consideration, it cannot be said that both the Courts committed any error of law by holding that the plaintiff had failed to prove the contents of the additions below the agreement to sell at Exhibit-114. As noted above, the defendant no.1 was illiterate and had denied the contents of the addenda. Hence, merely on the opinion of the finger print expert that the thumb impressions on the agreement dated 6-4-1993 and 25-6-1993 were of the same person, the plaintiff cannot succeed on that count. It was necessary for him to have proved the contents of the addenda. I do not find that the appreciation of evidence was perverse in any manner whatsoever. Though it was urged on behalf of the plaintiff that the defendant no.1 had avoided to give her thumb impressions for obtaining the opinion which conduct was not natural, in the light of the entire evidence on record this factor independently cannot be given much importance.
17. Accordingly, the substantial question of law is ::: Uploaded on - 28/08/2017 ::: Downloaded on - 29/08/2017 23:22:59 ::: sa505.11.odt 16/16 answered by holding that both the Courts did not commit any error in holding that the plaintiff ought to have proved the contents of the additions below the agreement of sale at Exhibit-
114. Consequently, the judgment of the first appellate Court does not call for any interference. Hence, the appeal fails. The judgment of the trial Court and the appellate Court stand confirmed. No costs.
JUDGE /MULEY/ ::: Uploaded on - 28/08/2017 ::: Downloaded on - 29/08/2017 23:22:59 :::