Madras High Court
Meenambigai vs Murugan on 13 January, 2015
S.A. (MD) Nos.95 and 96 of 2016
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved on : 22.08.2022
Delivered on: 03.03.2023
CORAM : JUSTICE N.SESHASAYEE
S.A. (MD) Nos.95 and 96 of 2016 and
C.M.P. No.2066 of 2016
Meenambigai ... Appellant in both appeals
Vs
Murugan ... Respondent in both appeals
Common Prayer : Second Appeals filed under Section 100 of Civil
Procedure Code against the judgments and decrees passed in A.S. Nos.70 &
71 of 2013 on the file of Additional Sub Court, Dindigul dated 13.01.2015
confirming the judgments and decrees passed in O.S. Nos.738 & 737 of
2004 dated 28.02.2013 on the file of the Additional District Munsif Court,
Dindigul with costs throughout.
For Appellant in : Mr.H.Lakshmi Shankar
both Appeals
For Respondent in : Mr.Y.Jacob
both Appeals
https://www.mhc.tn.gov.in/judis
1/41
S.A. (MD) Nos.95 and 96 of 2016
COMMON JUDGMENT
These twin appeals arise out of two independent suits. There are just two principal characters: Meenambikai and Murugan. Meenambikai is the owner of the suit property and Murugan claims that she had executed a sale agreement in his favour for sale of the said property. And both sides admit that Meenambikai had earlier executed what passes for an 'unregistered document of otti' pursuant to which Murugan was put in possession of the property.
1.2 For enforcing the sale agreement, Murugan had laid O.S.No.96 of 1996, a suit for specific performance before the Sub Court, Dindigul. For redemption of otti, Meenambikai on her part, had laid O.S.No.292 of 1999 against Murugan before District Munsif Court, Dindigul. This suit was later transferred to Sub Court where it was taken on file as O.S.No.52 of 2002 to enable joint trial of both O.S. No.96 of 1997 filed by Murugan along with the suit for redemption that Meenambigai had filed. Subsequently, owing to change in pecuniary jurisdiction of civil courts, both the suits were transferred from Sub Court, Dindigul to District Munsif Court, Dindigul. https://www.mhc.tn.gov.in/judis 2/41 S.A. (MD) Nos.95 and 96 of 2016 1.3 Before the Munsif Court, the suit laid by Murugan for specific performance was taken on record as O.S. No.738 of 2004 and the one filed by Meenambigai, was numbered as O.S. No.737 of 2004. Both the suits were tried jointly and evidence was recorded in O.S. No.738 of 2004. 1.4 After trial, the trial court decreed the suit for specific performance and dismissed the suit for redemption. Promptly Meenambigai challenged the decrees passed in these suits in A.S. No.70 of 2013 (against the decree for specific performance) and A.S. No.71 of 2013 (challenging the decree dismissing her suit for redemption of mortgage). The first appellate court found no reason to disturb the findings of the trial court, and dismissed both the appeals. Hence these second appeals.
1.5 For narrative convenience, parties would be referred to by their rank as in the suit for specific performance. Accordingly Murugan would be referred to as the plaintiff and Meenambikai will be referred to as the defendant.
2.1 The pleadings on either side are substantially same in both the suits, with both sides holding on to their position. Therefore, they are conjointly https://www.mhc.tn.gov.in/judis 3/41 S.A. (MD) Nos.95 and 96 of 2016 narrated as below:
● The dispute is over a house property bearing Door No.3/1/63 located in Survey No.9/1. This property is in Chinnalampatti. (This place has some relevance as it finds its way into the arguments advanced, and this would be seen later) This property belonged to the defendant.
● On 01.07.1995, the defendant executed what may be loosely termed as an unregistered otti deed (Ext.B1) in favour of the plaintiff. This was created to secure a debt of Rs.12,000/- which the plaintiff had advanced to the defendant. The plaintiff was put in possession of the suit property too. Ext.B-1 stipulated three years time for redemption of what the parties believed as an anomalous 'mortgage'. This is an admitted fact on either side. ● The plaintiff claims that on 20.12.1996, he entered into Ext.A-1 sale agreement with the defendant for purchase of the suit property for a total consideration of Rs.50,000/-. Under Ext.A-1, an advance of Rs.27,000/- too was paid. The balance sale consideration to be paid is Rs.23,000/- out of which, the 'otti' amount of Rs.12,000/- payable by the vendor under Ext.B1 was to be adjusted. This brings down the net balance sale consideration https://www.mhc.tn.gov.in/judis 4/41 S.A. (MD) Nos.95 and 96 of 2016 payable to Rs.11,000/-. Ext.A-1 stipulated three months period for the parties to perform their mutual contractual obligations. ● Within about a week after the execution of Ex.A1, the defendant's husband had written Ext.A2-letter dated 29.12.1996, wherein he took a position, slightly deviating away from the tenor of Ext.A-1 agreement. Few months thereafter, the plaintiff issued Ext.A3 - suit notice dated 26.02.1997. This was replied by the defendant vide Ext.A6 dated 01.10.1997. The plaintiff responded with his Ext.A-7 re-joinder dated 18.10.1997.
Promptly the plaintiff laid a suit for specific enforcement of Ex.A1-sale agreement.
2.2 The defence is as straight forward and uncomplicated as the case of the plaintiff. It is summarised below:
● Ext.A1 is a fabrication. The defendant's husband was engaged in hand-loom textiles, that he suffered loss in his business, and that sometime in 1977, the entire family migrated from Chinnalampatti and settled in Bangalore. Sometime in December, 1996, the plaintiff had visited the defendant at Bangalore and offered to purchase the suit property for Rs.85,000/-. As the https://www.mhc.tn.gov.in/judis 5/41 S.A. (MD) Nos.95 and 96 of 2016 defendant was not inclined to sell the property, they declined the offer. But the plaintiff had smartly left Rs.15,000/- which the defendant and her husband had found only after the plaintiff had left their house. Later in the month, the defendant had come over to Chinnalampatti for a marriage, and she visited the plaintiff to take back the amount he had left. He was not happy about it and had thus brought into existence a fabricated document. ● So far as the suit property is concerned, it was continuously under otti even prior to Ex.B1, that it was to a certain Mani followed by Pichai Mallaiyan, who was followed by Delhi Mani. Rajendran was the last of the 'mortgagees', before the plaintiff became the 'mortgagee' of the property.
● While so, in October, 1997, the defendant visited her native Chinnalampatti, and came to know that the plaintiff was spreading rumours that the defendant had entered into an agreement with him for sale of the property. Alerted by this information, she issued Ext.A6 - Notice dated 01.10.1997 and this was responded to by Murugan vide Ext.A7 reply. And, at no time, the defendant was in receipt of Ext.A3-suit notice alleged to have been issued by the plaintiff.
https://www.mhc.tn.gov.in/judis 6/41 S.A. (MD) Nos.95 and 96 of 2016 2.3 Having defended the suit for specific performance thus, the defendant proceeded to plead that on 21.12.1998, she issued a suit notice seeking redemption of the mortgage and for delivery of vacant possession of the suit property, and this was replied to by the plaintiff vide his reply dated 06.01.1999. She would then institute her suit in O.S.292 of 1999 (later O.S. 737 of 2004). The plaintiff's defence to this suit, as already indicated, is but a reiteration of his pleadings in the suit for specific performance.
3.1 The dispute went to trial. As already indicated, the suit for specific performance was tried as the main suit and evidence was recorded in that. Accordingly, Murugan was examined as PW1, and also examined PW2 to PW4, all of whom are attestors to Ext.A1-Sale Agreement. He had produced Ext.A1 to A10, of which few of them have already been referred to in the narrative above. To conclude, the details of the documentary evidence produced by the plaintiff/Murugan, Ext.A8 to Ext.A10 respectively are the signatures of PW2 to PW4 in Ext.A1. 3.2 On the side of the defendant, she examined herself as DW1. She examined the District Registrar, Madurai South, as DW2, and the Stamp https://www.mhc.tn.gov.in/judis 7/41 S.A. (MD) Nos.95 and 96 of 2016 vendor of the stamp paper used for preparation of Ext.A1 as DW3. This apart, the trial court had appointed a forensic handwriting expert for comparing the impugned signature of Meenambigai in Ext.A1 with her admitted signature. (Unfortunately this was marked as Ext.X3 when it should have been marked as Ext.C1). Similarly, the maker of this report was cross-examined as DW4, whereas in law, she should have been examined as CW1). The forensic handwriting expert had found that the impugned signature of the defendant as appearing in Ext.A1 sale agreement indeed belonged to her.
3.3 The trial court relied on the oral testimony of PW2 to PW4, the attesting witnesses of Ex.A1 along with Ext.B4, the report of the forensic handwriting expert and proceeded to decree Murugan's suit for specific performance and dismissed the suit for redemption filed by Meenambigai. These decrees were challenged by Meenambigai in A.S.Nos.70 & 71 of 2013 on the file of Additional Sub Court, Dindigul. 3.4 What was not adequately seen amplified in the judgment of the trial court but gets reflected in the judgement of the first appellate court is that the stamp paper in which Ext.A1 was prepared was purchased from one https://www.mhc.tn.gov.in/judis 8/41 S.A. (MD) Nos.95 and 96 of 2016 Masanam. This Masanam was examined as DW3, but he had denied that he had ever sold any such stamp paper, and this stance was contradicted by the testimony of DW2, the District Registrar. Ultimately it proceeded to follow the line of reasoning of the trial court and dismissed both the appeals.
4. Hence these second appeals at the instance of the defendant. They are admitted for considering the following substantial questions of law :
https://www.mhc.tn.gov.in/judis 9/41 S.A. (MD) Nos.95 and 96 of 2016 S.A.(MD) No.95 of 2016 S.A. (MD) No.96 of 2016
(i) Whether the courts below were (i) Whether the courts below were justified in granting the equitable correct and justified in dismissing relief of specific performance despite the suit for declaration and the inconsistencies and recovery of possession when the contradictions in the evidence of defendant is admittedly not plaintiff side witnesses and their claiming any possession as a documents about the negotiation and tenant and is also not paying execution of exhibit A1? rent?
(ii) Are the courts below correct and justified in totally ignoring the (ii) Whether the courts below are evidence of DW2 and DW3 namely justified in dismissing the suit the Sub Registrar and the Stamp merely on the ground that the suit Vendor in connection with exhibit A2 for specific performance filed by stamp paper and the evidence in the defendant has been decreed?
exhibits X1 and X2, which create a great deal of suspicion and doubt about the genuineness of exhibit A1 agreement?
(iii) Is the conclusion of the courts below that defendant signature in exhibit A1 is proved by PW2, PW3 and PW4, sustainable in law when they are not acqually acquainted with the signature of the defendant and also in the right of the fact that PW1 himself admitted that signature of defendant in the admitted document is different from the one found in exhibit A1?
(iv) Whether the courts below are justified in ignoring the contradictions and inconsistencies surrounding the actual amount paid under exhibit A1, while granting a discretionary relief of specific performance.
(v) Whether the first appellate court is justified in ignoring the case of the defendant on the ground that she had https://www.mhc.tn.gov.in/judis 10/41 S.A. (MD) Nos.95 and 96 of 2016 The Arguments:
A. Arguments of Appellant/Defendant's Counsel: 5.1 Outlining his broad line of argument, the learned counsel for the defendant/appellant argued that the plaintiff has rested his cause of action for his suit for specific performance on Ext.A1 sale agreement, which the defendant alleges as a fabrication. The plaintiff tries to prove the genuineness of the document through P.W.2, the scribe of Ext.A1, and P.W. 3 and P.W.4, the attesting witnesses to the same and Ext.B4, the report of the Handwriting expert and her testimony as D.W.4. The courts below found the efforts of the plaintiff adequate enough to take him ashore, but the courts have ignored or inadequately appreciated their quality in the face of contra evidentiary facts and circumstances. Summarising them, the learned counsel submitted:
● The stamp paper for preparing Ext.A-1 is dated 17.12.1996, and was seen to have been purchased in the name of the defendant at Peraiyur. Ordinarily any stamp paper will be purchased in the name of the purchaser and not in the name of the vendor of the property. Curiously enough the stamp paper, which carries a value of a meagre Rs.10/- was purchased at Perayur, near https://www.mhc.tn.gov.in/judis 11/41 S.A. (MD) Nos.95 and 96 of 2016 Thirumangalam which is some 90 k.m., from Chinnalampatti where Ext.A1 was alleged to have been executed. And, the plaintiff as P.W.1 admits that there are stamp vendors available at Chinnalampatti. It is intriguing as to why the defendant, a woman, a resident of Bangalore should travel 90 k.m to purchase a stamp paper from Perayur, when there are stamp vendors in Chinnalampatti. This aspect was not adequately cross examined when the defendant tendered her testimony.
● P.W.2, the scribe of Ext.A-1 would depose that negotiations for the sale of the suit property had taken place on 20-12-1996 before it culminated in the preparation and execution of Ext.A1. It is inconceivable that the defendant would be ready with a stamp paper even before negotiations had concluded. ● The stamp paper used for the preparation of Ext.A-1 carries the serial number 12832 and sold by certain Masanam Pillai, the stamp vendor. Masanam Pillai was examined as D.W.3, and he had denied that he ever sold the stamp paper to the defendant on 17-12-1996. And, the District Registrar, Madurai, who was examined as DW2, had produced the Original Register, marked as Ext.X1 and Ext.X2, submitted by the aforesaid stamp vendor https://www.mhc.tn.gov.in/judis 12/41 S.A. (MD) Nos.95 and 96 of 2016 (which the latter was obligated to submit to the District Registrar as per the Rules) and testified that in terms of the entries in Ext.X1 Register, Masanam Pillai had sold stamp papers with numbers 12831 to 12835 on 16.12.1996 to one Asaba of P.Ramanathapuram, and that no stamp paper was sold by him on 17.12.1996, whereas the stamp paper on which Ext.A1 was written bears the said date. This part of D.W.2's testimony was not cross examined. Besides denying that he had ever sold the stamp paper to the defendant, D.W.3 Masanam Pillai had also denied the stamp affixed in the said stamp paper and his purported signature in the stamp paper. Who then had purchased the stamp paper?
● As per Sec.2(11) of the Indian Stamp Act and Rule 6(2) of the Tamil Nadu Stamp Rules, 1925, stamp paper purchased by a person or his attorney shall be used for the purpose of executing a document. In this case, the stamp paper had not been purchased by either of the parties, and the stamp paper itself appears to have been fabricated by forging the signature of the stamp vendor, seal, serial number and date. Not only the stamp paper in which Ext.A1 was written was fabricated, the possibility that the very agreement as alleged to have been executed by the defendant itself comes https://www.mhc.tn.gov.in/judis 13/41 S.A. (MD) Nos.95 and 96 of 2016 under the shadow of suspicion.
● Plaintiff has disclosed in Ext.A-7 that soon after the execution of Ext.A1 agreement on 20.12.1996, defendant's husband had written Ext.A2 letter dated 29-12-1996, wherein the latter had admitted about the execution of Ext.A1. Indeed in this letter the defendant's husband had not only made no reference to Ext.A1, but also had not indicated anything to suggest that there could have been a concluded contract between the parties. Ext.A2, letter merely states that the plaintiff approached the defendant with money for purchase of the suit property, and that some money was tentatively received, but proceeds to caution the plaintiff not to make any preparation for sale, and that it could be discussed on two specified dates in December, 1996. In other words, Ext.A2 goes against the tenor of Ext.A1 agreement, but the plaintiff, going by the standards of a reasonable man which the law looks to for judging the conduct of the parties and for drawing logical inferences, did not react to Ext.A2 instantly. This renders the alleged existence of Ext.A1 as on the date of Ext.A2 both doubtful and suspicious. And, his reaction comes couple of months later, on 26.02.1997, when he alleged to have issued https://www.mhc.tn.gov.in/judis 14/41 S.A. (MD) Nos.95 and 96 of 2016 Ext.A3 legal notice, but this document does not refer to Ext.A2. There is, something inexplicable about the conduct of the plaintiff as it is not consistent with the behaviour of a man of reasonable prudence.
● Plaintiff asserts in his plaint that since the execution of Ext. A1 agreement, he has been ready and willing to perform his part of the contract, and has been demanding the execution of sale deed, but the defendant had been dragging her feet in performing her part of the contract, and that on 29.12.1996, the defendant's husband had written Ext.A2, quite contrary to Ext.A1 etc., But Ext.A2 was written on the 8th day from the date which Ext.A1 bears, and it is illogical and unbelievable that the plaintiff could have demanded the defendant to perform her part of the contractual obligation within this eight days of Ext.A1 to invite Ext.A2 letter from the latter's husband. Curiously enough that in Ext.A7 suit notice, the plaintiff makes a reference to Ext.A2 and says that Vide Ext.A2, the defendant's husband had confirmed Ext.A1 agreement, whereas Ext.A2 makes no reference to the same.
● And, turning to Ext.A3 legal notice, it was not received by the https://www.mhc.tn.gov.in/judis 15/41 S.A. (MD) Nos.95 and 96 of 2016 defendant. Even though it is dated 28.02.1997, yet it was posted only on 03.03.1997 as could be known from Ext.A4 postal receipt. And, the suit was filed on 05.03.1997, without waiting for Ext.A3 to reach the defendant. In fact, no acknowledgement to evidence the receipt of legal notice by the defendant is filed. Still, in the plaint (in O.S. No.738 of 2004), and he proceeds as if Ext.A3 had been received by the defendant.
5.2 Then there is a set of facts which have emerged in evidence which make the story line of the plaintiff unbelievable, and tilts the probability against the plaintiff's case, which the Courts below have overlooked, argued the counsel and proceeded to list them as under:
Plaintiff, the author of Ext.A7 suit notice, materially contradicts himself. In this notice he would state the defendant's husband vide Ext.A2 had confirmed Ext.A1 agreement, whereas in the plaint he would plead that Ext.A2 goes contrary to Ext.A1. This he repeats even in his affidavit of chief examination as well. Ext.A2 carries some significance with it, for it is dated barely eight days since the alleged execution of Ext.A1. And hence the conduct of the https://www.mhc.tn.gov.in/judis 16/41 S.A. (MD) Nos.95 and 96 of 2016 plaintiff vis-a-vis this document is material. P.W.2 deposes that he saw the plaintiff and the defendant negotiating the deal, and that he was required to prepare Ext.A1 agreement. This would now mean that negotiations for the sale of the suit property had taken place on 20-12-1996, but it instantly contradicts the evidence of PW1 and the statement in Ext.A7 notice where the plaintiff had asserted that negotiations for the sale had held on 18.12.1996. Secondly, in terms of Ext.A7 only the defendant had arrived at Chinnalampatti on 16.12.1996 to hold negotiation but this was improved by the plaintiff in his deposition where he claims that the defendant was accompanied by her husband. On the aspect of the negotiation, Ext.A7 refers to defendant's son-in-law and another person in the locality, but P.W. 3, one of the attesting witnesses to Ext.A1 says that he is a close friend of the plaintiff and that he has no idea about any availability of any relatives of the defendant in Chinnalampatti. Deposing about the execution of Ext.A1, plaintiff as PW1 has testified that (i) that the defendant's husband was present during the execution of Ext.A1 agreement; (ii) that the defendant's husband had brought PW2, the scribe of the document; and (iii) https://www.mhc.tn.gov.in/judis 17/41 S.A. (MD) Nos.95 and 96 of 2016 that PW3 and PW4, the attestors to Ext.A1 had come there by chance; and (iv) that all of P.W.2 to P.W.4 are his close friends. Significantly, while P.W.1 says that P.W.2 was brought by defendant's husband, P.W.2 himself would depose that he had come on his own. On the aspect about the presence of defendant's husband at the time of execution of Ext.A1, neither of PW2 to PW4 speak about his presence. And, if he were there, why is it that he was not required by the plaintiff to attest his wife's signature in Ext.A1?
Turning to the contents of Ext.A1, P.W.2 had deposed that he referred to Ext.B1, the 'otti document', for providing the description of the property details in Ext.A1, but the description of the property in Ext.A1 and Ext.B1 vary.
PW2 and PW4 say that they saw Meenambigai only at the time of execution of Ext.A-1, and that she was introduced to them by the plaintiff. How competent are they to speak about the signature of the defendant in Ext.A1, or about the identity of the one who purported to have executed Ext.A1? PW3, though pretends that Meenambigai had visited him earlier, yet could not provide the details thereof. Indeed he was not even aware that the defendant https://www.mhc.tn.gov.in/judis 18/41 S.A. (MD) Nos.95 and 96 of 2016 was living in Bangalore. His competency is very obviously questionable.
5.3 While it is true that the handwriting expert had opined that the impugned signature of the defendant in Ext.A1 is hers, yet an expert's opinion is not conclusive. It requires corroboration, but the facts that ought to provide the requisite corroboration runs tangential to the opinion of the expert, and hence it cannot be assigned any higher evidentiary value as to nullify the effect of other evidence. This apart the very competency of D.W. 4 is suspect, as she has neither established her competency through any specialised learning and training on the subject. An expert's opinion is only a piece of evidence and it is relevant under Sec.45 of the Evidence Act, but the opinion of an expert is never considered as conclusive. Reliance was placed on the ratio in Magan Bihari Lal Vs State of Punjab [AIR 1977 SC 1091], and D. Ananda Moorthy Vs P. Chandrakala [2010 (5) MLJ 899].
It needs to be underscored here that the defendant is essentially an illiterate woman, and generally illiterates are not given to sign with a running hand. 5.4 Both the Courts have oversimplified their approach and did not reckon that the relief of specific performance is discretionary in nature and have https://www.mhc.tn.gov.in/judis 19/41 S.A. (MD) Nos.95 and 96 of 2016 omitted to appreciate the aspects hereinabove listed as affecting the very conduct and hence the eligibility of the plaintiff to seek specific performance, argued the counsel. The judgements of the Courts below are plainly perverse, and warrants an interference under Sec.100 CPC by this Court. Reliance was place on the ratio in Dinesh Kumar Vs Yusuf Ali [(2020) 12 SCC 740], Ramathal Vs Maruthathal and others [AIR 2018 SC 340],Sebastiao Luis Fenandes Vs K.V.P.Shastri [ AIR 2014 SCW 155], Easwari v. Parvathi and Others [AIR 2014 SC 2912], Kashmir Singh v. Harnam Singh [(2008) 12 SCC 796] and Santhosh Hazari Vs Purushottam Tiwari [(2001) 3 SCC 179]. This apart this Court has ample powers under Sec.103 CPC to re-appreciate the evidence. 5.5 Shifting his focus now to the defendant's suit for redemption of Ext.B1, the learned counsel argued that a Full Bench of our Honourable Court in Nadepena Appamma and others v. Saripilli Chinnavadu (dead) and others [AIR 1924 Mad 292 (FB) : (2015)1 CTC 801], has held that a suit for redemption of usufructuary mortgage based on an unregistered document is essentially a suit for recovery of possession, and that the suit is maintainable.
https://www.mhc.tn.gov.in/judis 20/41 S.A. (MD) Nos.95 and 96 of 2016 (B) Arguments of the Respondent/ Plaintiff Counsel: 6.1 Per contra, the learned counsel for the plaintiff/respondent submitted:
● The plaintiff presents a straight forward case based on Ext.A1 sale agreement. In the face of the defence claiming it to be a fabrication that the signature of the defendant is alleged to be forged, the plaintiff had proved it by examining the scribe and the two attestors of the document as P.W.2 to P.W4. Sec.67 does not mandate any specific mode of proving the due execution of a document and given the context, the plaintiff has paraded the best witnesses, namely P.W.2 to P.W.4, all independent witnesses to speak to the due execution of the document. Reliance was made to Pantakota Satyanarayana & Others Vs Pantakota Seetharat- nam & Others [AIR 2005 SC 4362] Mobarik Ali Vs State of Bombay [AIR 1957 SC 857], Benichand by Lrs. Vs Smt. Kamalakunwar [AIR 1977 SC 63], Kishore Chandra Vs Ganesh Prasad [AIR 1954 SC 316] Kishan Arjuna Vs Ababuwa baba [2000 (4) Mh LJ 854], Ramkalap Vs Chaitoo [2005 (2) AWC 2004 All]. Secondly, law is concerned with the mode of attestation and the mode of proving of execution of a doc- ument through the attestors, and it does not require the attestors to https://www.mhc.tn.gov.in/judis 21/41 S.A. (MD) Nos.95 and 96 of 2016 know the executor of the document as has been misconceived by the plaintiff.
● This apart, the defendant herself opted to obtain an expert opinion on her disputed signature in Ext.A1, and the expert had given an opinion against her. An expert's opinion cannot be brushed aside and it has corroborative force, and in the instant case it corrobo- rates the evidence of P.W.1 to P.W.4. Indeed, the Courts below have not decided the case entirely based on the Expert's opinion on the genuiness of the signature of the defendant in Ext.A1 but also used it only as a corroborative piece of evidence. Reliance was placed on the ratio in Alamgir Vs State [AIR 2003 SC 282]. ● Much was argued about the purchase of the stamp paper from Perayur near Thirumangalam, but P.W.1 contends that it was brought by the defendant and the stamp paper was purchased in her name. The burden is now on her to explain it and is not on the plaintiff. And on this aspect the first appellate court has delved deeply and rejected this point of defence. In particular, the first appellate Court has pointed out the fact that the stamp paper in dispute was sold by DW3 Masanam without the latter getting the signature from the purchaser, and this shakes the credibility of the https://www.mhc.tn.gov.in/judis 22/41 S.A. (MD) Nos.95 and 96 of 2016 deposition of DW3.
It is on the basis of the cumulative effect of these evidences, the Courts be- low have found that Ext.A1 is genuine, and since this finding is one on fact, this Court in the second appellate stage may not re-visit the issue. 6.2 Responding to the contentions raised by the appellant/defendant, the learned counsel for the plaintiff argued:
● The allegation is that the plaintiff has not instantly reacted to Ext.A-2, an inland letter dated 29.12.1996, written some eight days since the execution of Ext.A1 by the defendant's husband to the plaintiff, and that it does not refer to Ext.A1 must be under- stood in this contextual setting. It may be true, that it did not ex- plicitly refer to Ext.A1 agreement, but discloses the elements ade- quate enough to corroborate the existence of Ext.A1 agreement. In particular there is a statement in this letter indicating the will- ingness of the defendant to retain the money, which though ap- pears to be made conditionally, yet the fact remains that there is an implied admission of payment of money by the plaintiff, which under circumstances must be understood as the advance money paid under Ext.A1.
https://www.mhc.tn.gov.in/judis 23/41 S.A. (MD) Nos.95 and 96 of 2016 ● So far as the allegation that the plaintiff had not instantly reacted to Ext.A2 is concerned, the said letter itself disclosed that the defendant and her husband would be arriving at Chinnalampatti within a month's time, and hence a reply was not immediately made. And, in Ext.A7 the plaintiff has alleged that the defendant had met him on 16.12.1996, and not on 18.12.1996 as alleged by the defendant. And, when Ext.A1 was not openly denied, it does not require an instant reaction from the plaintiff either. This will also be known from the tenor of Ext.A3 suit notice issued couple of months after Ext.A2 letter, which disclosed the conduct of the plaintiff that he did not consider the existence of Ext.A1 agree- ment was in dispute. In hindsight it can be said that the carefully worded Ext.A2 appears to be a ploy deployed by the defendant to wriggle herself out of her contractual obligation, but the real in- tent behind sending Ext.A2 came to surface only after the suit, and not before it.
● The defendant had not replied to Ext.A3 suit notice. While she de- nied having received it in her testimony, she has admitted its contents, which implies that she indeed has received it. It is not so much about when the suit was laid for specific performance but is https://www.mhc.tn.gov.in/judis 24/41 S.A. (MD) Nos.95 and 96 of 2016 all about what was the reaction of the defendant? ● So far as the allegation that P.W.2 to P.W.4 were all friends of the plaintiff goes, only known people will be approached. There is nothing fundamentally suspicious about it. On the allegation that P.W.2 to P.W4 did not speak about the presence of defendant's husband at the time of execution of Ext.A1 is concerned, all these witnesses make categorical statements about it, but the defendant subjects the statements of these rustic witnesses to meticulous analysis for drawing inferences which persons of ordinary pru- dence might not even contemplate doing.
● There is no difference between the description of the property in ExtB1 and Ext.A1, except that in Ext.A1 it is given in greater detail.
Discussion & Decision :
7. The discussion will be now split into two parts: The first part pertains to S.A.(MD) No.95 of 2016 which arises from O.S.No.738 of 2004 laid by the plaintiff for specific performance, and the second part will be on S.A.(MD) No.96 of 2016, which, to repeat, arises from the suit for recovery of possession, laid by the defendant (plaintiff in O.S.No.737 of 2004). https://www.mhc.tn.gov.in/judis 25/41 S.A. (MD) Nos.95 and 96 of 2016 I. S.A. (MD) No.95 of 2016 :
8. The plaintiff has come forward with an uncomplicated set of facts as in most suits for specific performance: That on 20.12.1996, the defendant had entered into Ext.A1 sale agreement with the plaintiff, which was prepared by P.W.2 (the scribe of the document) and was attested by P.W.3 and P.W.4. The defendant denies the very execution of the document, and she has taken out a commission for obtaining an expert opinion of her purported signature in Ext.A1 with her admitted samples, and forensic handwriting expert (D.W.4), to her dismay, has given a report against the her vide Ext.X3. In between, defendant's husband had written Ext.A2 dated 29.12.1996 tothe plaintiff; and the plaintiff had issued Ext.A3, suit notice dated 28.02.1997 to the defendant. Then comes a notice dated 01.10.1997 from the defendant to the plaintiff (marked as Ext.A6), and the plaintiff's reply to it vide Ext.A7 dated 18.10.1997.
9. If the facts and the evidence are analysed in the backdrop of the above introductory statements, it helps the Court to sequentialize certain aspects which this Court may have to consider, and/or that it cannot afford to ignore:
(a) Primarily the issue revolves around the genuineness Ext.A1 – its https://www.mhc.tn.gov.in/judis 26/41 S.A. (MD) Nos.95 and 96 of 2016 execution. On this aspect, the plaintiff has made his job relatively easy by examining P.W.2 to P.W.4, and satisfied the legal require-
ment of proving the genuineness of the document conforming to the best evidence rule. And, here he obtained an unexpected support from D.W.4, the handwriting expert and Ext.X3 report.
(b) What however, seeks the attention of the Court is not any allegations of inadequacy of proof of Ext.A-1 which the plaintiff has offered, but in assessing the merit of the defence. The defendant firmly relies on specific circumstances questioning the reliability of the proof which the plaintiff has made available, the adverse report from the handwriting expert notwithstanding.
(c) Permissibility of this Court to interfere with the concurrent find- ings of the factum of execution of Ext.A1 at the second appellate stage.
10. Without any need for referring to any authorities, this Court now intends to make at least three aspects clear:
(a) That the High Court, in the second appellate stage, can interfere with the findings on facts of the Courts below, provided those https://www.mhc.tn.gov.in/judis 27/41 S.A. (MD) Nos.95 and 96 of 2016 findings are arrived at without reference to the materials available on record, and of such nature considering which in the right way holds a strong probability of reversing the findings of the courts below. And, it need not necessarily border on perversity, in the strict sense of the term.
(b) In cases for specific performance of a contract, it being an excep-
tional remedy in equity, the Court is required not to confine its en- quiry to a mere check-listing the compliance of legal requirements necessary for proving a fact, or the probability of drawing an inference from a set of proven facts. It is required to examine the conduct of both the parties, but the stress will be more on the plaintiff since the initial burden to come clean is on him. A scintilla of suspicion in whatever he attempts, may derail his course. It is here the defendant seeks to engage this Court in this appeal.
(c) So far as the evidentiary value of the handwriting expert is concerned, it is not conclusive as it has only a corroborative force. After all a handwriting expert can make a statement whether on a comparison of a disputed signature with an admitted signature, any https://www.mhc.tn.gov.in/judis 28/41 S.A. (MD) Nos.95 and 96 of 2016 strong similarities are noticeable, and not whether the disputed signature belongs to the person by whom it is purported to have been made.
11. Turning to proof of Ext.A-1, if one has to go only by the mode of proof of Ext.A-1, it can be said that the plaintiff has crossed a fair distance in dis- charging the burden. The point is if they can be fitted well as pieces of a jig-saw puzzle, with the circumstances which the defendant has proved. If they match well, the plaintiff would reach ashore safe. If not, it would create certain suspicion about the plaintiff's case, and if it does not stand the scrutiny of the reasonable man of law, then it would instantly taint the conduct of the plaintiff and is bound to cost him the suit. Court does not aid unfair practices and misuse of its process.
12. When the case of the plaintiff is tested on the principle herein above stated, it leaves few loose ends in his efforts. They have been adequately argued by the counsel for the appellant, but are required to be listed again as they will now form part of the reasoning of the court:
● First to the purchase of a Rs.10/- stamp paper from D.W.3 by the defendant from Perayur, a place some 90 k.m. away from Chin- https://www.mhc.tn.gov.in/judis 29/41 S.A. (MD) Nos.95 and 96 of 2016 nalampatti for preparing Ext.A1. The plaintiff would contend that the stamp paper was brought by the defendant. Here, this Court does not assume that the stamp paper used is invalid but con- siders it for appreciating the conduct of the plaintiff. The reason- able man of law would be wondering why a woman in her late 40s or early 50s should travel 90 k.m. to buy a Rs.10/- stamp paper when according to the plaintiff there are stamp-vendors in Chin- nalampatti where Ext.A1 was alleged to have been executed. Star- tlingly enough, D.W.3, the stamp vendor concerned has testified that he had not sold the said stamp paper to the defendant, and in- deed he had not sold any stamp paper to anyone on 17-12-1996 as could be seen from Ext.X1 extract from the Register produced and spoken to by D.W.2 District Registrar. According to Ext.X1, the stamp papers bearing Sl.No.12831 to 12835 were sold by Masanam to one Asaba on 16.12.1996. The serial number which the stamp paper in question bears is 12832, and if it had been sold by D.W.3 to Asaba on 16.12.1996, it is inconceivable that he could sell the same stamp paper to the defendant on the next day. The only explanation which the counsel for the plaintiff offers is that the stamp paper might have https://www.mhc.tn.gov.in/judis 30/41 S.A. (MD) Nos.95 and 96 of 2016 been sold by D.W.3 to some unlicensed sub-vendor, but this Court is in no mood to accommodate any arguments that projects an ex- tra-legal practices to shield the plaintiff from a situation staring at him. This apart, the defendant was not even probed about the pos- sibility of she travelling to Perayur when she was examined as D.W.1. And, if the testimony of P.W.2 were to be trusted, the ne- gotiation for sale of the suit property to the plaintiff was concluded only on 20.12.1996, and if so why defendant should travel 90 k.m. to buy a stamp paper for preparing an agreement which was not even concluded on the date it was supposed to have been pur- chased. If logic is not ignored, and if the intelligence of the rea- sonable man of law is not faulty, then this Court finds the theory of the plaintiff odd and unacceptable, and surely his case comes under the cloud.
● Another document which the plaintiff relies on to corroborate the execution of Ext.A1 sale agreement is an inland letter dated 29.12.1996, which the defendant's husband had written to the plaintiff barely a week after the date which Ext.A1 bears, and is available on record as Ext.A2. This letter is admitted by the de-
https://www.mhc.tn.gov.in/judis 31/41 S.A. (MD) Nos.95 and 96 of 2016 fendant. Ext.A2 in essence says that the defendant and her hus- band were looking to purchase a house in Bangalore, and if the same was finalised, they would retain the money with them, lest the money would be returned. And it instructs the plaintiff not to go ahead with mobilising the funds for purchase of the suit proper- ty. What is intriguing is, the way the plaintiff has chosen to treat this letter. In Ext.A3 suit notice dated 28.02.1997, plaintiff has de- scribed it as one affirming the existence of Ext.A1, whereas a plain reading of the document does not indicate it. Assuming that Ext.A1 had come into existence by then, the best one can under- stand from a plain reading of Ext.A2 is that this letter is not in tune with Ext.A1 agreement and in fact it goes against the tenor of the sale agreement. The plaintiff did not react to it. This conduct of the plaintiff is puzzling when an reasonable man of ordinary pru- dence would react instantly to it, if only there was a sale agree- ment preceding it.
● Subsequently, in Ext.A7 reply notice dated 18.10.1997 issued by the plaintiff to the defendant's Ext.A6, notice dated 01.10.1997, he changes the gears and says that Ext.A2 runs counter to Ext.A1. https://www.mhc.tn.gov.in/judis 32/41 S.A. (MD) Nos.95 and 96 of 2016 Ext.A2 is one communication which the same plaintiff seems to understand in two different sense at two different points of time. And the time difference between Ext.A3 and Ext.A7 is about eight months. More about it later.
● The plaintiff starts with a shaky stamp paper, and walks on a slip- pery lane provided by Ext.A.2. The counsel for the plaintiff has argued that the plaintiff has explained entire events with relevant dates, but it comes long after the institution of the suit, which what this court considers as self-serving statements. In deed, in this Ext.A7, he had stated that on 04.12.1996, the husband of the defendant had come to Chinnalampatti, which he could have easily stated earlier, if he had chosen to react and respond to Ext.A2. He would then say that on 16.12.1996 the defendant herself had met the plaintiff at Chinnalampatti, and thereafter on 20.12.1996, Ext.A-1 was executed. The introduction of these dates were dis- closed after the suit, as an effort at damage-control subsequent to Ext.A6, notice. On perusal of the case papers, this Court finds that almost on the fifth day of issuing Ext.A3 suit notice, the plaintiff had laid the suit for specific performance (05.03.1997), without https://www.mhc.tn.gov.in/judis 33/41 S.A. (MD) Nos.95 and 96 of 2016 even waiting to receive the response of the defendant. The de- fendant did not file her written statement for the next 18 months, till 07.08.1998. However, some seven months after the institution of the suit, she issued Ext.A6 notice, dated 01.10.1997, seeking recovery of possession of the property, wherein she had substan- tially disclosed her line of defence that she would be taking later in her written statement. Ext.A7 goes thereafter as a reply to Ext.A6, but by then, the defendant had already disclosed the line of her defence. Given the contextual setting, it is very obvious that the allegations with precise particulars accompanied by few critical dates as provided in Ext.A-7 might have to be understood as a determined rear-guard action of the plaintiff to veil over not- too-convincing early strategy with a make-belief as they do not fit in with the sensibilities of the reasonable man of law. ● Another fact pertains to the presence of the defendant's husband at the time of alleged execution of Ext.A-1. Here, the counsel for the defendant has indicated how the witness vary on it. Now, even if the plaintiff's assertion about the presence of the defendant's husband is taken on its face value, why is that he was not required https://www.mhc.tn.gov.in/judis 34/41 S.A. (MD) Nos.95 and 96 of 2016 to sign as an attestor? Sheer common sense suggests it, if not ex- pects it.
13. There are still two issues that are required to be addressed: The first is positioning Ext.X-3, the report of the handwriting expert. As outlined in one of the earlier paragraphs, a handwriting expert is not an eye witness to an event, and his/her report on similarity of few strokes in the disputed and admitted signatures can never be final. The science behind it is not as safe as the one involved in the comparison of finger prints. It is because, the fin- ger prints do not change, but the signatures will. Hence, a report of the handwriting expert can never be a stand alone evidence for proving a fact in issue, and it requires corroboration from other substantive evidence, for its own evidentiary value is no more than corroborative. So far as the facts of the present case is concerned, when the plaintiff finds himself caught in a whirlpool of suspicion, a report of a handwriting expert hardly holds the prospects of securing him the relief he seeks.
14. The other aspect is reconciling a certain reference to retaining some amount by the husband of the defendant which he disclosed in Ext.A2 with the finding that the execution of Ext.A1 is suspicious. This Court was in- https://www.mhc.tn.gov.in/judis 35/41 S.A. (MD) Nos.95 and 96 of 2016 formed that the defendant's husband had died when the suit went for trial, and hence this Court has to fit in Ext.A-2 in the context of other facts avail- able on record. Given the fact that Ext.A-1 does not inspire confidence, there are only two possibilities: (a) That the line of the case which the de- fendant has projected may be true, and it relates to her pleading that the plaintiff had visited her at Bangalore and despite he been told that the suit property was not for sale, he left some amount in her house and left, which the defendant and her husband had noticed only he left the house; and (b) There may be another agreement for sale to which the amount referred to in Ext.A2 may relate. The former is a possibility since Ext.A.2 does not refer to Ext.A1 agreement, and also when it requests the plaintiff not to mobilise any funds for sale of the property and the failure of the plaintiff to react to it. The latter can also be a possibility, when it can be said that defendant might possibly pleading a false case. But the issue before the Court is about the genuineness of Ext.A-1 on which the plaintiff rests his cause for his action, and once this document is found to be clouded in a strong smoke of suspicion, it loses its reliability for this Court to contemplate about granting a relief to the plaintiff. And since the power to grant the relief of specific performance is also discretionary in nature, the Court has to weigh the conduct of the plaintiff before it. When Ext.A-1 is found to be tainted with https://www.mhc.tn.gov.in/judis 36/41 S.A. (MD) Nos.95 and 96 of 2016 suspicion, it necessarily reflects on the conduct of the plaintiff. Either way the plaintiff does not qualify for obtaining the relief he seeks.
15. The courts below appears to have blissfully avoided consulting the rea- sonable man of law, and have been far too pedantic in their approach in ap- preciating the evidence of the defendant. When fraud is pleaded, it should automatically alert the Court to subject the facts before it to greater scrutiny, and that it must constantly consult the all virtuous reasonable man of law for guidance, for fraud does not parade as a fraud holding a label or a placard. The duty is manifold in a suit for specific performance, where not just the facts constituting the cause for the action need to be proved, but also the conduct of the plaintiff which comes under the forensic scanner. Courts must realise that while appreciating the evidence, if the reasonable man of law is avoided, they are prone to find themselves stranded in an illogical terrain uninhabited by common sense. Perversity in the reasoning of a judgement thus cannot be limited to mere non-consideration of few pieces of evidence on a material fact, but includes faulty appreciation of evidence that leaves catastrophic consequences. This case surely will merit a place in the second category.
https://www.mhc.tn.gov.in/judis 37/41 S.A. (MD) Nos.95 and 96 of 2016
16. On facts, it must be held that the defendant has scored a few vital and valuable points against the plaintiff which are strong enough to cause a dent in the latter's case. The point is, should this Court endorse its approval to the verdict of the courts below? Impossible it is, unless this Court compro- mises with its conscience. This is equity jurisdiction, and it shows little tol- erance to anything suspicious. In this case, both Ext.A1 and the conduct of the plaintiff fail to pass the litmus test in this forensic exercise. It is re- quired to be emphasised that the performance of the plaintiff who seeks a remedy in equity must match the skill of a gymnast aiming for a perfect 10. This Court finds this plaintiff stumbling and tumbling at will in convincing the Court that he deserves a perfect score. Necessarily this Court has to in- terfere with the findings of the Courts below, no matter that they are concur- rent. This Court is not constituted to let the injustice resulted from the faulty appreciation of evidence by two courts multiply with an endorsement of its approval.
17. To conclude, this court finds every reason to reverse the judgement and decree of the courts below, and to dismiss the suit in O.S.738 of 2004. II.S.A.(MD) No. 96 of 2016:
https://www.mhc.tn.gov.in/judis 38/41 S.A. (MD) Nos.95 and 96 of 2016
18. The judgement here is essentially consequential to the judgement in S.A (MD) 95 of 2016. The admitted case on either side is that the plaintiff is in possession of the property on the basis of an unregistered mortgage to secure a debt of Rs.12,000/-. Inasmuch as the said arrangement is not rec- ognised in law, neither side can enforce any of their right based on this 'un- registered mortgage'. But the fact remains that the plaintiff has come to be in possession of the suit property since 1995, some 27 years from now.
19. In Nadepena Appamma and others v. Saripilli Chinnavadu (dead) and others [AIR 1924 Mad 292 (FB) : (2015)1 CTC 801] this Court has held that in all cases a suit for mere recovery of property is maintainable. And since the plaintiff in the suit for specific performance has lost his suit, the situation grants the defendant to seek recovery of property in her suit. This cannot be denied to her any longer. Necessarily the suit in O.S.737 of 2004 has to be decreed.
20. In the result :
(a) S.A.(MD) No.95 of 2016 is allowed with costs, and the judgment and decree of the first appellate Court in A.S.No.70 of 2013 is set aside, and the suit in O.S.No.738 of 2004 on the file of District Munsif https://www.mhc.tn.gov.in/judis 39/41 S.A. (MD) Nos.95 and 96 of 2016 Court, Dindugul is dismissed.
(b) S.A.(MD) No.96 of 2016 is allowed with costs, and the judgment and decree of the first appellate Court in A.S.No.71 of 2013 is set aside. Accordingly, the suit in O.S.No.737 of 2004 is decreed and the defendant therein (Murugan) is directed to delivery vacant possession within three months from today.
Consequently, connected miscellaneous petition is closed.
03.03.2023 Index : Yes / No Internet : Yes / No Speaking order : Yes / No ds/CM To:
1.The Additional Sub Judge Dindigul.
2.The District Munsif Dindigul.
3.The Section Officer VR Section Madurai Bench of Madras High Court Madurai.
https://www.mhc.tn.gov.in/judis 40/41 S.A. (MD) Nos.95 and 96 of 2016 N.SESHASAYEE. J., CM Pre-delivery Judgement in S.A.(MD) Nos.95 & 96 of 2016 03.03.2023 https://www.mhc.tn.gov.in/judis 41/41