Madras High Court
K.M.Balasubramanian vs S.Shanmugam (Deceased) on 1 February, 2017
Author: R.Subramanian
Bench: R.Subramanian
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED:01.02.2017
CORAM:
THE HONOURABLE MR.JUSTICE R.SUBRAMANIAN
A.S.No.847 of 2009
K.M.Balasubramanian ... Appellant
Vs
1.S.Shanmugam (Deceased)
2.S.Savithiri
3.Saranya
4.Minor Sowmiya
Minor rep. by mother/N.F/
S.Savithiri
5.Kannammal
6.Santhi
7.Gomathi ... Respondents
RR 5 to 7 brought on record on
LRs of the deceased R1 vide
order of this Court dt.09.01.2017
made in C.M.P.No.20360 to
20362 of 2016 in A.S.No.847/2009
This appeal is filed under Section 96 of C.P.C. against the judgement and decree dated 30.04.2008 made in O.S.No.28 of 2006 on the file of the Additional District Court/Fast Track Court No.1, Erode.
For Appellant : Mr.N.Manokaran
For Respondents : Mr.T.R.Rajaraman for R1
Mr.V.Kadhirvelu for RR 2 to 4
J U D G E M E N T
The 1st defendant who suffered a decree for refund of advance is the appellant. The suit O.S.No.28 of 2006 on the file of the Additional District Court/Fast Track Court No.1, Erode was filed by the plaintiff claiming that he has entered into an agreement of sale on 29.07.2003 in and by which the defendant had agreed to sell the suit property for a total sale consideration of Rs.15,93,000/- to the plaintiff. The plaintiff had paid advance Rs.1,00,000/- on the date of the agreement. The agreement stipulates that further advance of Rs.9,00,000/- is to be paid on or before 17.09.2003 and the balance sale price has to be paid on or before 15.03.2003.
2. According to the plaintiff he came to know that certain third parties had filed suits and obtained orders of attachment of the suit property. Therefore, at the instance of the 1st defendant, the plaintiff had discharged the debts to the tune of Rs.6,80,000/- in favour of Tmt.V.K.Lakshmi and her husband Kuppusamy, who had filed a suit for recovery of money on the basis of a promissory note alleged to have been executed by the 1st defendant.
3. The plaintiff caused a notice on 24.02.2004 seeking refund of advance amount. The 1st defendant sent a reply dated 27.02.2004 through his counsel denying the very agreement dated 29.07.2003. The claim of of the plaintiff regarding payment of debt has also been denied by the 1st defendant. The plaintiff came forward with the above suit on 27.04.2004 seeking refund of a sum of Rs.7,80,000/- with interest at 12 per annum. The first defendant died pending suit. His wife and children have been impleaded as defendants 2 to 4. The 1st defendant filed a written statement contending that he never executed the alleged agreement dated 29.07.2003.
4. He would further contend that the agreement has been created in collusion with his alleged creditors namely, Tmt.V.K.Lakshmi and her husband Kuppusamy, who are the relatives of his wife Savithiri. The 1st defendant has also contended that the suit agreement is a forgery and the signatures as well as the endorsement found in Ex.A2, were not made by him. The second defendant filed a separate written statement claiming that she is not aware of the agreement. She would claim that the defendants 2 to 4 are also entitled to shares in the suit property. The 3rd defendant filed a separate written statement claiming that the suit properties are ancestral and as per the compromise dated 13.01.2003 the defendants 2 to 4 are also entitled to shares. It is also claimed that a suit for partition has been instituted by the 2nd and 3rd defendants against the 1st defendant.
5. On the aforesaid pleadings, the learned Additional District Court/Fast Track Court No.1, Erode framed the following issues:
1.Whether the agreement dated 29.07.2003 between the 1st defendant and the plaintiff is true and valid?
2.Whether the plaintiff has discharged the debts of the 1st defendant under the decree in O.S.Nos.212 and 208 of 2009 on the file of the Sub Court, Bhavani and O.S.No.308 of 2001 on the file of the Sub Court Erode?
3.Whether the plaintiff is entitled to a decree as prayed for?
4.Whether the plaintiff is entitled to charge under Section 55(6) of the Transfer of Property Act?
5.Whether defendants 2 to 4 are liable for the suit claim?
5.To what other relief is the plaintiff entitled to?
6. On the side of the plaintiff PWs.1 to 5 were examined and Exs.A1 to A40 were marked. On the side of the defendants D.W.1 and 2 were examined and no documentary evidence was produced.
7. The learned Trial Judge on comparison of signatures in Exs.A1,Ex.A2,Ex.A39 and Ex.A40 with the admitted signatures concluded that the Ex.A1 agreement is true and valid. Relying upon the evidence of PW2 and PW3 as well as Exs.A18,30,31,32,33,34,35 & 38 the learned Trial Judge concluded that the plaintiff had paid money and discharged the debts of the 1st defendant. Upon the aforesaid findings, the learned Trial Judge granted the decree as against the 1st defendant only. The Trial Judge found that defendants 2 and 4 had no right over the suit property and they were exonerated. Aggrieved by the said decree, the 1st defendant has preferred the above appeal.
8. I have heard Mr.N.Manokaran, learned counsel appearing for the appellant and Mr.T.R.Rajaraman, learned counsel appearing for the 1st respondent and Mr.V.Kadhirvelu, learned counsel appearing for the respondents 2 to 4.
9. The following points arise for determination:
1.Whether the plaintiff, has discharged the burden of proving Exs.A1 and A2 in the light of plea of total denial by the 1st defendant?
2.Whether the Trial Court was right in comparing the signatures found in Exs.A1 and A2 with Exs.A39 and Ex.A40 without the aid of an expert opinion and placing its conclusion on such comparison?
3.Whether the claim of the plaintiff that he has discharged the debts due to the third parties at the instance of 1st defendant has been established?
10. Mr.N.Manokaran, learned counsel appearing for the appellant would claim that the Trial Court has wrongly placed the burden to disprove Exs.A1 and A2 on the defendants. He would also contend that the Trial Court has erred in not drawing an adverse inference against the plaintiff for not having taken steps to have the signatures compared by an expert. The learned counsel also invited my attention to the evidence of PW1, wherein according to the learned counsel, PW1 has deposed against his own case in the plaint. He would also point out that PW2, Lakshmi would admit the fact that there was some misunderstanding between her and the 1st defendant. He has also pointed out that PW2 Lakshmi had admitted that she is not in good terms with the wife of the 1st defendant Savithiri.
11. Mr.N.Manokaran, the learned counsel appearing for the appellant would rely upon the judgement of the Hon'ble Supreme Court in Thiruvengadam Pillai vs. Navaneethammal and another reported in (2008) 4 SCC 530 wherein, the Hon'ble Supreme Court cautioned the Courts from entering upon comparison of signatures without the aid of an expert opinion. Relying upon para-19 of the said judgement, the learned counsel would contend that it is for the plaintiff to establish the execution of the agreement Ex.A1. He would also contend that the Supreme Court had held that the defendant cannot be expected to prove the negative. In the said judgement, the Hon'ble Supreme Court has observed as follows:
19. The trial court had analysed the evidence properly and had dismissed the suit by giving cogent reasons. The first appellate court reversed it by wrongly placing onus on the defendants. Its observation that when the execution of an unregistered document put forth by the plaintiff was denied by the defendant, it was for the defendants to establish that the document was forged or concocted, is not sound proposition. The first appellate court proceeded on the basis that it is for the party who asserts something to prove that thing; and as the defendants alleged that the agreement was forged, it was for them to prove it. But the first appellate court lost sight of the fact that the party who propounds the document will have to prove it. In this case the plaintiff came to court alleging that the first defendant had executed an agreement of sale in his favour. The first defendant having denied it, the burden was on the plaintiff to prove that the first defendant had executed the agreement and not on the first defendant to prove the negative. The issues also placed the burden on the plaintiff to prove the document to be true. No doubt, the plaintiff attempted to discharge his burden by examining himself as also scribe and one of the attesting witnesses. But the various circumstances enumerated by the trial court and the High Court referred to earlier, when taken together, rightly create a doubt about the genuineness of the agreement and dislodge the effect of the evidence of PWs 1 to 3. We are therefore of the view that the decision of the High Court, reversing the decision of the first appellate court, does not call for interference.
12. Mr.N.Manokaran, would also rely upon the judgement of this Court in Karuppusamy vs. S.Karunaiyammal & others reported in 2011 (2) MWN (Civil) 1 wherein, this Court after referring to Thiruvengada Pillai case cited supra held that it is for the parties to prove proper execution of the document. It is also held that even though there is no bar for the Court to compare the signature, the Court must record finding on the features of the signatures that were compared. In the absence of such finding, comparison should not be relied upon.
13. Per contra, Mr.T.R.Rajagopalan, learned Senior counsel appearing for the 1st respondent would contend that the voluminous of documentary evidence filed would show that the 1st defendant was the debtor to various persons as well as the fact that the 1st defendant owed money to the plaintiff under Exs.A39 and Ex.A40. He would also draw my attention to the oral evidence of the 1st defendant, wherein he denied every suggestions put to him and contend that this conduct on the part of the 1st defendant should be taken note of.
14. Ex.A1 has been typed on 20 rupees stamp papers and there are two attesting witness to the said document. On the execution of Ex.A1, the evidence of plaintiff as PW1 is totally unconvincing. In his cross-examination, he deposed as follows:
xg;ge;jk; nghl;l njjp. fpHik "hgfk; ,y;iy/ xg;ge;jj;ij ehd;jhd; vGjpndd;/ ilg; (jl;lr;R) bra;atpy;iy/ xg;ge;jj;ij vGjpath; vd;w ,lj;jpy; ahUk; ifbaGj;Jg;nghltpy;iy/ vj;jid Kj;jpiuj;jhs;fs; cgnahfpf;fg;gl;lJ vd;W "hgfk; ,y;iy/ U:/20-? Kj;jpiuj;jhs; gad;gLj;jp vGjg;gl;lJ/ Kj;jpiuj;jhs; th';fp 2.3 ehl;fs; fHpj;J vGjpndhk;/ vj;jid ehl;fs; vd;W rhpahf "hgfk; ,y;iy/ xg;ge;jk; fh";rpnfhapypy; itj;J vGjg;gl;lJ/ xt;bthU gf;fj;jpYk; rhl;rpfs; ifbaGj;Jg;nghl;lhh;fs;/ xg;ge;j Mtzj;jpy; ahhplKk; nuiffs; th';ftpy;iy/ rhl;rpfs; gHdpag;gd;. rf;jpnty; Mfpnahh;fs; rhl;rp ifbaGj;Jf;fs; nghl;lhh;fs;/ rhl;rpfspd; tpyhr';fs; vGjg;gl;ld/@
15. As already pointed out the evidence of PW1 relating to execution of Ex.A1 is totally contrary to the the real facts. Ex.A1 has been typed on the 20 rupees stamp papers. Whereas PW1 has specifically deposed that Ex.A1 has not been typed. He would also say that witnesses have signed in each page and their addresses were written. Though he claimed that Palaniappan and Sakthivel have signed as witnesses in the agreement Ex.A1, it is seen from the agreement, the addresses of the attesting witnesses are not available. Above all, the plaintiff has not chosen to examine any one of the attesting witnesses. This by itself creates doubt as to the genuineness of the Ex.A1 agreement.
16. Though the plaintiff had said he has no objection for sending the document to an expert, he has not chosen to take any steps to have the document referred to an expert. In the absence of examination of attesting witness and in view of the contradictory statement given by PW1, I am unable to accept the findings of the Trial Court on execution of Ex.A1. As already stated, the learned Trial Judge has chosen to compare the signatures of 1st defendant in Exs.A1 and A2 with the admitted signatures in Ex.A35 and Ex.40. The Trial Court has not discussed the features of the signatures before holding that the signatures found in Ex.A1 are that of 1st defendant based on comparison. While it is true that the Court can compare the signatures and come to the conclusion, the Hon'ble Supreme Court has cautioned that the Court before exercising such a power it should make a thorough study of the case. It must point out the basis on which, the Court has come to the conclusion that the signatures are all of the same persons or others. In the absence of such basis or opinion, comparison by the Court is deprecated by the Hon'ble Supreme Court. From the judgement of the Trial Court, it is seen that the signatures of 1st defendant found in Exs.A1 and A2 and Ex.A35 and Ex.A40 have not been properly compared. I am therefore of the opinion, that the plaintiff has not proved the execution of Exs.A1 and A2.
17. The plaintiff would claim that he had discharged the loans of the 1st defendant to the tune of Rs.6,80,000/- to the creditors of the 1st defendant. From Ex.A1 and the endorsements which has been marked as Ex.A2, it could be seen that two witnesses have signed in the said endorsement apart from the 1st defendant. The 1st defendant has also denied the signatures found in the said endorsement. None of the witnesses, who signed in the endorsement have been examined before the Trial Court. In support of the endorsement, the plaintiff has produced Ex.A31, which is a memo filed by the plaintiff in O.S.No.308 of 2001 namely, Lakshmi PW2, the decree holder in that suit.
18. The suit O.S.No.308 of 2001 has been filed by Lakshmi against the 1st defendant. The said Lakshmi who has been examined as PW2 in her cross-examination would admit that the 1st defendant had taken a defence that the promissory note based on which he filed the suit is a forged document and she has also taken an application for examination of the signatures found in the promissory note by an expert. During the pendency of the said application, the suit came to be withdrawn by her as settled out of the Court. Exs.A33, A34 are two receipts alleged to have passed by one Palanivelu, the plaintiff in O.S.No.212 of 1999 and Uthirakumar, the plaintiff in O.S.No.206 of 1999 evidencing the receipt of a sum of Rs.1,60,000/- each in satisfaction of the decree obtained by them. These receipts have been marked subject to objection through PW1, who is the son-in-law of the plaintiff. A cursory look at the documents show that those documents are wholly unreliable. Those documents are xerox copies. The signature of one of the witnesses namely S.N.Balasubramanian, is in blue ink, which shows that the witnesses has signed in a xerox copy. This by itself shows that Exs.A33, A.34 are doubtful. Unfortunately, these matters have not been brought to the attention of the Trial Court. Ex.A35 is a full satisfaction memo said to have been filed by the plaintiff in O.S.No.206 of 1999. The certified copy of full satisfaction memo, does not appear to have been served either on the counsel for the defendant in the said suit or the same has been recorded by the Court. Therefore, Ex.A33 is not helpful to the plaintiff to prove payment of debts. Ex.A36 is an affidavit said to have been filed in the application for attachment in O.S.No.206 of 1999 and it is not helpful to the plaintiff in any manner.
19. The plaintiff in his evidence as PW1 has deposed that he is a retired District Revenue Officer. He is not an illiterate person. He had in his evidence deposed that the amounts paid as advance as well as repayment of the debt to the 1st defendant by him, were reflected in his income tax account. He would claim in his evidence as follows:
ehd; tUkhd thp brYj;Jfpd;w egh; Mntd;/ tHf;fpy; fz;Ls;s bjhiffs; tUkhdthp fzf;fpy; tUfpd;wd/ fzf;if jhf;fy; bra;aKoa[k;/ tUkhd thp fzf;ifg; ghh;j;jhy; ehd; gzk; bfhLj;njdh ,y;iyah vd;W bjhpe;J bfhs;syhk;/ Despite the said cross-examination and admission, the plaintiff has not chosen to produce his income tax return. Though the plaintiff would claim that he had repaid the debts due to the creditors of the 1st defendant on the request of the 1st defendant, the said claim has been denied by the 1st defendant. In the light of the conflicting oral evidence, I am unable to accept the claim of the plaintiff that he discharged the debts owed by the 1st defendant to 3rd parties on the request of the 1st defendant.
20. In view of the above discussion, I find that the Trial Court has misdirected itself in comparing the signatures and coming to the conclusion that Exs.A1 and A2 have been executed by the 1st defendant and they are true and valid.
21. While it is true that the 1st defendant has given up his claim, as rightly pointed out by Mr.T.R.Rajagopalan, learned Senior counsel appearing for the plaintiff. The 1st defendant had chosen to deny all the suggestions immaterial of their relevance in his cross-examination. The plaintiff cannot favoured with the decree because of his conduct alone. The suit is not one for specific performance. The suit is one for refund of advance. Therefore, I am unable to agree with the submission of the learned counsel for the 1st respondent that the conduct of the appellant should be taken note of for deciding the appeal. In fine, the appeal is allowed and the judgement and decree of the Trial Court are set aside and the suit O.S.No.28 of 2006 on the file of the Additional District Court/Fast Track Court No.1, Erode will stand dismissed with costs. However, there will be no order as to costs in this appeal. If any amount has been deposited to the credit of the suit by the appellant, he will be entitled to withdraw the same.
01.02.2017 Index : Yes/No Internet: Yes/No vk To The Additional District Court/Fast Track Court No.1, Erode.
R.SUBRAMANIAN,J vk A.S.No.847 of 2009 01.02.2017 http://www.judis.nic.in