Andhra HC (Pre-Telangana)
Sattaram Manemma W/O. Bal Reddy vs Maddigatla Balaiah S/O. Chennappa, ... on 8 March, 2004
Equivalent citations: AIR2005AP14, 2004(4)ALD634, AIR 2005 ANDHRA PRADESH 14, (2004) 4 ANDHLD 634 (2004) 21 ALLINDCAS 857 (AP), (2004) 21 ALLINDCAS 857 (AP), (2004) 21 ALLINDCAS 857 (AP) (2004) 4 ANDHLD 634, (2004) 4 ANDHLD 634
JUDGMENT C.Y. Somayajulu, J.
1. This second appeal is preferred by the defendant in O.S. No. 25 of 1991 on the file of the Court of the Senior Civil Judge at Nagarkurnool, which is a suit filed by the respondents for specific performance of an agreement of sale dated 23.01.1989 executed by the appellant in their favour in respect of the plaint schedule property and for a consequential injunction.
2. The case of the respondents is that appellant entered into an agreement to sell the plaint schedule property for Rs. 29,021.25 ps at Rs. 5,450/- per acre and received Rs. 24,000/- as advance and having agreed to receive the balance amount due on or before 23.11.1989 put them in possession of the plaint schedule property. Though they offered to pay the amount due to the appellant she was postponing to receive the same, and so, they got issued a registered notice to her, and she having received the same did not send a reply. The case of the appellant is that the agreement relied on by the respondents is forged and that she, in fact, is not the owner of the plaint schedule property and that her mother who purchased the said property in her name is in actual possession thereof and since there are boundary disputes between her mother and Pentaiah, her mother's neighbour, respondents at the instigation of Pentaiah brought an agreement into existence and filed the suit.
3. Basing on the pleadings, three issues were settled for trial by the trial Court. In support of their case, respondents examined four witnesses as P.Ws.1 to 4 including the 1st respondent as P.W.1 and marked Exs.A.1 to A.11. In support of her case, appellant examined herself as D.W.1 and four other witnesses as D.Ws.2 to 5 and marked Exs.B.1 to B.4.
4. The trial Court having held that Ex.A.5 contains the thumb impression of the appellant, found against the respondents on the issue relating to the genuineness of Ex.A.5 and the ground that proof of thumb impression without evidence that contents of the document are explained to the executant would not amount to proof of due execution of the document, and consequently held that respondents are not entitled to specific performance, as Ex.A.5 is not enforceable in law, and dismissed the suit. Aggrieved thereby respondents preferred A.S. No. 27 of 1998 to the Court of the II Additional District Judge, Mahabubnagar, who by his judgment and decree dated 05.01.2004, impugned in this second appeal, decreed the suit of the respondents. Hence, this Second Appeal by the defendant.
5. The contention of the learned counsel for the appellant is that the lower appellate Court was in error in reversing the well reasoned finding of the trial Court and about the truth and genuineness of Ex.A.5 without keeping in view the fact that proof of signature or thumb impression on a document per se does not amount to proof of due execution. He relied on SMT. AHALYA BAI v. GANGAPUR SHANKARAIAH AND Ors., in support of the said contention. His next contention is that since there is a material alteration in Ex.A.5, due to the change of the date of performance from 23.04.1989 to 23.11.1989, Ex.A.5 became unenforceable and relied on VUMMALANENI BASAVAYYA AND Ors. V. MYNENI VENKAYYA (DIED) PER L.Rs. AND Ors., 1997 (5) ALT 583 and S.K. PANCHAKSHARAM MUDALIAR (DIED) AND OTHERS v. T.V.KANNAIAH NAIDU AND Ors., in support of his said contention. It is his contention that the fact that no plea is taken in the written statement that Ex.A.5 became unenforceable due to material alteration is of no consequence because the Supreme Court in KALI PRASAD v. M/S. BHARAT COOKING COAL LIMITED, AIR 1989 SUPREME COURT 1530 held that if parties go to trial with knowledge of the case of the other side, the fact that there is no plea with regard to a particular contention, on which both sides adduced evidence, is of no consequence. His next contention is that since the evidence on record clearly establishes that respondents are not ready and willing to perform their part of contract the lower appellate Court erred in passing a decree for specific performance. He placed strong reliance on PONTHALA VENKATARAMANA (DIED) & ORS. Vs. RATAKONDA NARAYANA, 1996 (1) (A.P.) LAW SUMMARY 279 in support of his said contention.
6. The contention of the learned counsel for the respondents is that the trial Court without keeping in view the fact that when defence of forgery is only taken in the written statement and when there is no plea that the contents of the documents are not read over, it is not necessary to prove that the contents were read over to the witness as held in Rao Saheb v. RANGNATH GOPALRAO KWATHEKAR, erroneously dismissed the suit and since the lower appellate Court after proper appreciation of the evidence on record and the case law, reversed the finding of the trial Court and decreed the suit, no question of law much less substantial question of law arises for consideration in this Second Appeal, and so the same is liable to be dismissed.
7. When execution of a document by an illiterate is disputed, the person relying on the document has to prove that the executant affixed the thumb mark after the contents of the document were read over and explained to the executant. In DATTATREYA's case (6 supra), the Apex Court clearly held that when a plea of forgery is taken, the party seeking to prove the execution of a document is not required to prove that the executant knew the contents thereof. So, in such a case it would be enough if the party relying on the document is able to establish that the disputed document contains the thumb mark of the executant. The specific case of the appellant is that she did not execute the Ex.A.5. There is no plea that the contents thereof are not explained to her. The trial Court, after considering the evidence of the expert, that there are ten points of similarity in the admitted thumb impression and the disputed thumb impression, held that Ex.A.5 contains the thumb mark of the appellant. In view thereof and in view of the ratio in DATTATREYA's case (6 supra) coupled with the fact that the appellant failed to send a reply to Ex.A.1, registered notice got issued by the respondents, the lower appellate Court held that Ex.A.5 is duly executed. As held in CHAPALA HANUMAIAH v. KAVURI VENKATESWRLU, An.W.R. 1971 (1) Page 65, failure to send a reply to the registered notice would be a strong point in favour of the person issuing the notice. The trial Court having observed that in view of the ratio in SALADI SRIRAMA MURTHY v.KAVALI SWAMINAIDU AND Ors., , a presumption that the appellant received Ex.A.2 notice, failed to draw the necessary presumptions that would arise due to non-sending of a reply thereto.
8. Even otherwise the evidence adduced by respondents establishes due execution of Ex.A-5 as P.W-2 during re-examination stated that Ex.A-5 was executed after the bargain was settled and after the appellant declared the same as settled. During cross-examination it was elicited that he signed Ex.A-5 only after going through the same, from which it can be inferred that the appellant affixed her thumb mark on Ex.A-5 only after knowing the contents. Therefore, the finding of the lower appellate Court that Ex.A-5 is duly proved cannot be said to be erroneous.
9. The observations in SMT.AHALYA BAI's case (1 supra) relied on by the learned counsel for the appellant are of little help to decide the case. The Court in that case while considering the genuineness of Ex.B.1, relied on by the defendant in a suit for declaration of title and for permanent injunction, observed as follows:
"Both the Courts below have dealt with the question of lease set up by the 1st defendant both on an assessment of Ex.B.1 and the oral evidence in the case. They have given adequate reasons as to why they are rejecting such a theory. They have held that although the signature on Ex.B.1 is proved to be that of the plaintiff, the execution of the document is not actually proved. That appears to be the correct legal position. ...................... where only signature was proved on Ex.B.1 through the evidence of the hand-writing expert C.W.1 as rightly held by the learned Judges, it meant execution of the document. The other evidence regarding the execution has failed to satisfy the conscience of the Court. The evidence of the 1st defendant and her witnesses regarding Ex.B.1 is found to be contradictory and doubtful. The writings in the document are found to be in different pens although the expressions of the witnesses showed that same pen was used. More than all, rightly or wrongly the first defendant herself stated that Ex.B.1 came into existence after she received the suit summons and having been advised by somebody that it was better to have such a document to support her case. These materials naturally influenced the learned Judges of the Courts below judiciously to reject the theory of lease of the suit land to the plaintiff".
From the above observation it is clear that both the Courts below, in that case, concurrently, on the basis of the evidence on record, held that the document relied by the defendant is not genuine.
10. The specific case of respondents is that Rs.24,000/- was paid to the appellant on the date of execution of Ex.A-5 and possession of the property agreed to be sold was delivered to them. Significantly it is not the case of the appellant that she is in possession of the plaint schedule land. Her case is that her mother is the owner and is the person in possession of the plaint schedule land and that she is only a benamidar. So, it is clear that appellant is not claiming possession over the plaint schedule property.
11. With regard to the contention of the learned counsel for appellant that Ex.A-5 is materially altered, it should be stated that no specific plea is taken in the written statement by the appellant that Ex.A-5 is vitiated by material alteration. Though a plea seems to have been taken before the trial Court about material alteration in Ex.A-5, trial Court did not either discuss or give a finding on that aspect. In the lower appellate Court no plea seems to have been taken with regard to material alteration in Ex.A-5. No doubt from Ex.A-5 it is seen that '4' in 23-4-189 is altered to '11' to read 23.11.1989. It is only an alteration. It is well known that all alterations are not material alterations. If alterations are made with consent, it is not material alteration. If alterations with regard to material terms of contract are made without the knowledge or consent of the other party, it would be a material alteration. In the plaint it is specifically alleged that the date fixed for performance of the contract was 23.11.1989. In the registered notice got issued prior to the filing of the suit also a specific allegation is made that the contract is agreed to be performed on 23.11.1989. If the date fixed or agreed between parties is 23.04.1989 but not on 23.11.1989, nothing prevented the appellant from taking a plea in her written statement, as an alternative plea to a plea of forgery, that there is a material alteration in Ex.A.5 and that that alteration was made without her knowledge or consent. For that reason and since appellant did not send a reply to Ex.A.1 notice, and since she did not also say anything about the alteration in her evidence though respondents adduced to show that the date fixed for performance was 23.11.1989, it has to be taken that the alteration found in Ex.A-5 was made with the knowledge and consent of the appellant and so it would not amount to material alteration. Therefore, Vummalaneni Basavayya's case (2 supra), Kali Prasad's case (4 supra) and S.K. PANCHAKSHARAM MUDALIAR's case (3 supra) relied on by the learned counsel for the appellant are of no help to the appellant. It is no doubt true that respondent has to establish her readiness and willingness to perform her part of the contract for her being entitled to a decree for specific performance. The evidence adduced by the respondents shows that they tendered the amount to the appellant even prior to the date fixed for the performance and that she avoided to receive the same. In the said circumstances, the fact that Ex.A.1 was sent after the date fixed for performance, is of no consequence. The lower appellate Court after considering the evidence adduced by the parties held that the evidence on record is sufficient to hold that respondents are always ready and willing to perform their part of contract, which finding needs no interference. So, I find no merits in this Second Appeal.
12. Hence, appeal is accordingly dismissed. No costs.