Madras High Court
Valliyathal vs P.P.Sakthivel on 23 June, 2022
Bench: T.Raja, D.Bharatha Chakravarthy
A.S.No.342 of 2015
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Judgment Reserved on : 01.12.2021
Judgment Pronounced on : 23.06.2022
CORAM :
THE HON'BLE MR. JUSTICE T.RAJA
AND
THE HON'BLE MR.JUSTICE D.BHARATHA CHAKRAVARTHY
A.S.No.342 of 2015
1.Valliyathal
2.V.Kumarasamy
3.K.Dhandapani
4.S.Saroja ... Appellants
Versus
P.P.Sakthivel ...
Respondent
Prayer : First Appeal against the impugned Judgment and decree
dated 06.03.2015 made in O.S.No.255 of 2010, on the file of the III-
Additional District Judge, Tharapuram.
For Appellants : Mr.K.Sukumaran
For Respondent : Mr.N.Manokaran
for Mr.Ponraj
JUDGMENT
Mr.D.Bharatha Chakravarthy. J., :
A. The Suit :
The plaintiff namely P.P.Sakthivel filed the suit in O.S.No.255 of 2010 on the file of the Principal District Judge, Erode, praying for specific performance of an agreement of sale dated 28.01.2008, directing the https://www.mhc.tn.gov.in/judis 1/27 A.S.No.342 of 2015 defendants to receive the balance sale consideration of Rs.19,22,900/- and to execute a sale deed in his favour in respect of the suit schedule property and for a permanent injunction restraining the defendants from in any manner dealing with the suit schedule property or alienating it to the third parties.
B. The Case of the Plaintiff :
2.The case of the plaintiff is that the defendants are the owners of the suit schedule property, being their self-acquired property, having purchased the same by a registered sale deed dated 08.08.1972 bearing Document No.1129 of 1972. The defendants offered to sell the property to the plaintiff and the plaintiff agreed to purchase it for a total sale consideration of Rs.74,22,900/- by entering into an unregistered sale agreement on 28.01.2008. The defendants received an advance amount of Rs.15 lakhs. As per the agreement, the transaction has to be completed within a period of 90 days i.e., on or before 28.04.2008. But, however, at the end of the 90 days, the defendants received a further sum of Rs.40 lakhs on 27.04.2008 and extended the time limit for completing the transaction by two years and three months. Accordingly, when the plaintiff was ready to pay the balance sale consideration of Rs.19,22,900/-, the defendants evaded executing the sale deed. The plaintiff, therefore, issued a legal notice on 20.04.2010, but, however, the defendants evaded the said notice by returning the same as https://www.mhc.tn.gov.in/judis 2/27 A.S.No.342 of 2015 'left'. Therefore, the plaintiff issued a telegram on 24.07.2010, which was received by the defendants, but, however, they did not come forward to receive the balance sale consideration and to execute the sale deed, hence the suit.
C. The Case of the Defendant :
3.The first defendant filed a written statement by which, it was the clear and categorical case of the defendants that the entire sale agreement is a concocted and forged document. According to the defendants, no such agreement ever took place and they did not receive any advance amount.
Both the sale agreement dated 28.01.2008 and the subsequent endorsement dated 27.04.2008 are absolutely false, forged and concocted. As a matter of fact the suit property is mortgaged with a Bank and the proceedings are pending before the Debt Recovery Tribunal. By somehow getting a photocopy of the document, the plaintiff has concocted the suit sale agreement. The second defendant stood exparte. Pending the suit, the first defendant died and their legal heirs were impleaded as Defendants 3 to 5, who again filed a written statement on the same lines as that of the first defendant.
D. The Trial & Findings :
https://www.mhc.tn.gov.in/judis 3/27 A.S.No.342 of 2015
4.On the basis of the above pleadings four issues were framed, which were re-casted by the Trial Court as three, which are as follows:-
i) Whether the defendants executed the sale agreement?
ii) Whether the contention of the defendants that the sale agreement is forged, is correct? Whether the contention that the sale agreement and the endorsement are forged by the plaintiff is correct?
iii) Whether the plaintiff was ready and willing to execute the contract and whether he is entitled for the relief of specific performance? What other relief?
5.On the above issues the parties let in evidence. The plaintiff examined himself as P.W.1. One Chennimalai, attesting witness to the sale agreement was examined as P.W.2. One Periyasamy, who was a witness to the endorsement made in the sale agreement, was examined as P.W.3. One Shanmugasundaram, the scribe who made the sale agreement ready, was examined as P.W.4. On behalf of the plaintiff, the suit agreement was marked as Ex.A1; the endorsement made for extending the time was marked as Ex.A2; the pre-suit notice issued by the plaintiff was marked as Ex.A3; https://www.mhc.tn.gov.in/judis 4/27 A.S.No.342 of 2015 the returned covers were marked as Exs.A4 and A5; the receipt for issuing a telegram was marked as Ex.A6; the confirmation copy of the said telegram is marked as Ex.A7; a photocopy of the title deed of the defendants is marked as Ex.A8; the Kist receipt for payment of kist by the plaintiff on 28.07.2010 is marked as Ex.A9; and the Adangal extract dated 28.04.2009 is marked as Ex.P10.
6.On behalf of the defendants, the third defendant viz., Kumarasamy was examined as D.W.1. The original application in O.A.No.235 of 2009 filed by Karnataka Bank against the defendants was marked as Ex.B1; the property tax receipt issued in the name of D.W.1 dated 24.01.2005, 11.03.2007 were marked as Exs.B2 & B3; the Judgment of the Debt Recovery Tribunal, Coimbatore, dated 21.09.2007 is marked as Ex.B4; the residence certificate of the defendants was marked as Ex.B5; and the Kist receipt dated 25.10.2014 is marked as Ex.B6.
7. The Trial Court took into consideration the evidence of P.W.1 to P.W.4 for finding that the sale agreement was executed. It found that mere variance of signature in each page by itself cannot lead to a conclusion that the sale agreement was forged. The Trial Court further found that since no https://www.mhc.tn.gov.in/judis 5/27 A.S.No.342 of 2015 police complaint has been lodged by the defendants and they have not taken any steps to send the documents namely Exs.A1 & A2 i.e., sale agreement and endorsement respectively, for comparison by the forensic/handwriting expert, came to the conclusion that the defendants 1 & 2 have executed the sale deed and received the advance amount.
8.In respect of issue No.3, the Trial Court had found that the agreement has been executed with an intent to carry out the same. The plaintiff has paid the initial advance . Thereafter another sum of Rs.40 lakhs was paid. Upon receipt of the same, time was extended for two years and three months. Since the defendants have also admitted that they had a house at Semmandapalayam, the plaintiff has sent the notice to the same address, which has been returned as left. The plaintiff has also deposited the balance sale consideration before the Court. The Court need not give detailed findings vis-a-vis, right of the plaintiff and the Mortgagee Bank. Merely because, the property has been attached as per the final Judgment it need not come in the way of the Court decreeing the suit and therefore, the Trial Court found that the plaintiff was ready and willing to perform his part of the contract and therefore, decreed the suit, by granting the relief of specific performance. Aggrieved by the same, the present appeal suit is laid by the https://www.mhc.tn.gov.in/judis 6/27 A.S.No.342 of 2015 defendants before this Court.
E. The Submissions :
9. Heard Mr. Sukumaran, Learned Counsel for the appellants and Mr. N. Manokaran, Learned Counsel for the respondent.
10.Mr.Sukumaran, Learned Counsel for the Appellants/defendants would submit that the Learned District Judge completely shifted the burden of proving the signatures found in Exs.A1 & A2 on the defendants, which is erroneous in law. It is the bounden duty of the plaintiff to prove Ex.A1 & A2, in the manner known to law, when the defendants have denied the very execution categorically. It is his next submission that as far as the pre-suit notice under Ex.A3 is concerned, it has been willfully and wantonly sent to Semmandapalayam address, therefore, it was returned as left and even in the evidence of the plaintiff and the attesting witnesses, it is admitted that they have gone to the house of the defendants at Muthoor Road, VellaKovil Village and they were not residing in the said address to which the pre-suit notice was issued. The Trial Court had not considered the arguments on behalf of the defendants regarding the question of capability of the plaintiff to enter into such huge transaction of about Rs.74 lakhs and absolutely no evidence whatsoever either in the form of income tax returns or any Bank https://www.mhc.tn.gov.in/judis 7/27 A.S.No.342 of 2015 Passbook was produced to prove that the plaintiff had already paid a sum of Rs.55 lakhs in cash. It is his next contention that without prejudice to the submissions that the entire sale agreement is forged, the case of the plaintiff is at variance with the alleged sale agreement also. The learned counsel further submitted that pursuant to a decree in O.A. No.144 of 2000, which was originally filed on the file of the Debt Recovery Tribunal -I, Chennai, and re-numbered as T.A. No.1676 of 2002, on the file of the Debt Recovery Tribunal, Coimbatore, the property has already been sold to One Ganesh Kumar, by a registered sale deed dated 17.06.2021 under the registered document No.2254 of 2021. The learned counsel would therefore submit that the said fact was not considered in a proper perspective by the Trial Court.
11.The learned counsel would rely upon the Judgments in N.P.Thirugnanam Vs. R.Jagan Mohan Rao1, more specifically paragraph No.5 for the proposition that the plaintiff should plead and prove readiness and willingness. The learned counsel would rely upon the Judgment in S.S.Chokkalingam Vs. R.B.S. Mani and others2, more specifically paragraph 24 with regard to the time limit and granting of extensions. The 1 AIR 1996 SC 116 https://www.mhc.tn.gov.in/judis 2 . 1994 (2) MLJ page 78 8/27 A.S.No.342 of 2015 learned counsel would rely upon the Judgment in Vasantha and others Vs. M.Senguttuvan3, more specifically paragraph No.15 to plead that the plaintiff should prove his everyday readiness. The learned counsel relied upon the Judgment in K.S.Vidyanadam and others Vs. Vairavan4, more specifically relying upon paragraphs Nos.13 & 14, to plead that the inaction on the part of the plaintiff beyond the reasonable time is fatal. The learned counsel would rely upon paragraph No.8 of the Judgment of the Hon'ble Supreme Court in Arni Rishi vs. Gurbaksh Singh5, for the proposition that it is the plaintiff’s duty to prove Exs.A1 & A2. The learned counsel would further rely on the Judgment Thiruvengadam Pillai Vs. Navneethammal and another6, more specifically paragraph No.19 wherein it is categorically held that it is not a sound proposition to expect the defendants to establish as to whether the document was forged and concocted. The learned counsel further relied upon the Judgment in Robinson Vs. Ramachandran7 more specifically paragraph No.21 to contend that the Trial Court erred in shifting the burden of proof on the defendants, while it is the settled principle of law 3 . 1998 1 CTC 186 4 . (1997) 3 SCC page 1 5 . 2006 (5) SCC page 558 6 . (2008) 4 SCC page 530 https://www.mhc.tn.gov.in/judis 7 (2014) 6 CTC page 195 9/27 A.S.No.342 of 2015 that the plaintiff has to discharge the said burden. The learned counsel further relied upon the Judgment in C.S.Venkatesh Vs. A.S.C.Murthy(dead) by Legal Representatives and Ors8 more specifically paragraphs Nos.17 to 21 to press home the point that the plaintiff should plead and prove continuous readiness and willingness. The learned counsel further relied upon the Judgment of the Honourable Supreme Court of India in South East Asia Marine Engineering and Constructions Limited (SEAMEC Limited) Vs. Oil India Limited9, more specifically paragraph No.28 that the entire contract should be read as a whole and if read, the case of the plaintiff cannot stand. The learned counsel further relied upon the Judgment in Bhavyanath Represented by Power of Attorney Vs. K.V.Balan (dead) through Legal Representatives10, more specifically paragraph No.23 regarding the timing of the plaintiff in filing the suit. The learned counsel further relied upon the Judgment in Kalawati (dead) through Legal Representatives and Ors Vs. Rakesh Kumar and Ors.11, more fully rely upon paragraph No.18 regarding the readiness willingness and capability of the plaintiff in filing the suit. In order to press home the proposition that the readiness and willingness cannot be inferred from the mere ipse dixit of the 8 (2020) 3 SCCC page 280 9 (2020) 5 SCC page 164 10 (2020) 11 SCC 790 https://www.mhc.tn.gov.in/judis 11 (2018) 3 SCC page 658 10/27 A.S.No.342 of 2015 plaintiff, the learned counsel relied upon the Judgment in Ritu Saxena Vs. J.S.Grover and Another12, more specifically paragraph No.15. Thus, by relying upon the aforesaid Judgments, the learned counsel for the appellant prayed that the appeal be allowed and the suit filed by the respondent/plaintiff be dismissed.
12.Opposing the above said submissions, Mr.N.Manokaran, the learned counsel appearing on behalf of the respondent/plaintiff would submit that as far as Exs.A1 & A2 is concerned, the first defendant affixed signature while the second defendant affixed her thumb impression. Apart from the plaintiff as PW-1 and P.Ws.2 and 3, the attesting witnesses were examined to prove Exs.A1 & A2. The scribe was also examined to prove the preparation and execution of Exs.A1 & A2. Their evidence has not been shattered in the cross-examination and no contrary evidence has been let in by the defendants and therefore he would submit that the plaintiff has duly proved Exs.A1 & A2. He would further submit that the contract is in respect of sale of immovable property and therefore, there is no presumption as to the time being the essence of the contract. To press home the said proposition, the learned counsel would rely upon the Judgments in Chand https://www.mhc.tn.gov.in/judis 12 (2019) 9 SCC 132 11/27 A.S.No.342 of 2015 Rani (Smt) (dead) by Lrs. Vs. Kamal Rani (Smt) (Dead) by Lrs.13 more specifically paragraph No.25; R.Lakshmikantham Vs. Devaraji14, more specifically paragraph No.11; Rathnavathi and Another Vs. Kavita Ganashamdas15, more specifically paragraphs Nos.32 to 45; and the Judgment in Balasaheb Dayandeo Naik Vs. Appasaheb Dattatraya Pawar16 more specifically paragraphs Nos.10 to 15.
13.The learned counsel would submit that as far as readiness and willingness are concerned, the plaintiff had originally paid Rs.15 lakhs under Ex.A1 and Rs.40 lakhs under Ex.A2 within the period of 90 days. The balance sum of Rs.19,22,000/- was deposited before the Court. Therefore the plaintiff has categorically proved his readiness and willingness. The learned counsel would submit that the balance sale consideration was deposited as per the direction of the court which is valid as per Explanation-I to Section 16-C of the Specific Relief Act. The learned counsel would rely upon the Judgment in Madhukar Nivrutti Jagtap and Ors. Vs. Pramilabai Chandulal Parandekar and Ors.17, more specifically paragraph Nos.13.2, 13.4 and 13.5, for the proposition that the plaintiff had proved his 13 (1993) 1 SCC 519 14 (2019) 8 SCC 62 15 (2015) 5 SCC 223 16 (2008) 4 SCC 464 https://www.mhc.tn.gov.in/judis 17 AIR 2019 SC 4252 12/27 A.S.No.342 of 2015 readiness and willingness. For the proposition that it is enough to deposit the balance sale consideration upon the direction of the court, the learned counsel relied upon paragraph No.20 of the Judgment reported in Coromandel Indag Products Vs. Garuda Chit and Trading Company Private Limited and Another18. The learned counsel further submitted that the defendants are taking false pleas about their address and having the residence at Semmandampalayam Village is admitted by them. This apart the only witness examined on behalf of the defendants, namely, D.W.1 even denied the signature in the Vakalat and therefore his evidence is not at all trustworthy. For the said proposition the learned counsel would rely upon the Judgment in Visalamani Vs. Ganapathi and Ors.19, more specifically paragraph No.10.
14.The conduct of the defendants in evading the pre-suit notice and subsequently executing a sale deed for a paltry sum of Rs.32 lakhs only, based on the recovery proceedings before the Debt Recovery Tribunal, all show their conduct to defeat the plaintiff and for the said proposition relied upon the Judgment in Silvey and Ors. Vs. Arun Varghese and Anr.20, more specifically paragraph No.14. The learned counsel would submit that DW.1 18 (2011) 8 SCC page 601 19 MANU/TN/2969/2020 https://www.mhc.tn.gov.in/judis 20 (2008) 11 SCC page 45 13/27 A.S.No.342 of 2015 is the first defendant and she passed away, but the second defendant was alive and she did not even enter the witness box. Therefore, adverse inference had to be drawn against her. There was no further burden of proving the forgery apart from examining DWs.2 to 4 and when no police complaint was given, there was no necessity to take steps to get an opinion from the handwriting expert. For the proposition that adverse inference has to be drawn the learned counsel relied upon the Judgment in Vidhyadhar Vs. Manikrao and Ors.21. Finally, the learned counsel for the respondent/plaintiff would submit that when the discretionary power to grant the relief of specific performance, has been exercised by the Trial Court, unless such discretion is perverse or arbitrary, the Appellate Court need not interfere with the same and for the said proposition relied upon the Judgment in K.Prakash Vs. B.R.Sampath Kumar22 more specifically paragraphs Nos.16, 18 and 19 and the Judgment in Sughar Singh Vs. Hari Singh (Dead) through L.Rs. And Ors.23, more specifically paragraph Nos.8 and 10. Thus, he would pray that there is no merits in the appeal and the same to be dismissed.
F. The Points for Consideration :
21
AIR 1999 SC 1441 22 (2015) 1 SCC 597 https://www.mhc.tn.gov.in/judis 23 MANU/SC/0985/2021 14/27 A.S.No.342 of 2015
15.We have considered the submissions made on either side. We have gone through the pleadings and material evidence on record and the Judgment of the Trial Court. The following questions arise to be determined in this Appeal:-
(i) Whether the onus of proving the defendants' signatures/left thumb impression in Exs.A1 & A2 is on the plaintiff or on the defendants and whether by other attendant evidence and circumstances the plaintiff has discharged his onus to prove the due execution of Exs.A1 & A2?
(ii) Whether the plaintiff is entitled for the relief of specific performance in view of the pendency of the proceedings before the Debt Recovery Tribunal and the subsequent sale of the suit property to third party ?
(iii) Whether the plaintiff was ready and willing and whether he is entitled to the relief of specific performance?
G. Question No.1:
16.It is the case of the plaintiff that on the day of execution of Ex.A1 a https://www.mhc.tn.gov.in/judis 15/27 A.S.No.342 of 2015 sum of Rs.15 lakhs was paid in cash. Similarly, on the day of execution of Ex.A2 a sum of Rs.40 lakhs is paid in cash. A careful perusal of the evidence on record would reveal that except for the oral testimony on the part of the plaintiff, there is no other iota of evidence in respect of the passing of such consideration as found in Exs.A1 & A2 in the form of any Bank statement, or any other document for withdrawal of money or proof of having cash, etc. In this background, the defendants deny the very transaction itself. It must be noted first that originally as per the suit sale agreement 90 days was the time fixed to complete the transaction. However, vide Ex.A2 endorsement curiously the time was extended for two year and three months. In paragraph No.5 of the plaint or anywhere else, nothing is pleaded as to why after payment of Rs.55 lakhs, that is about 75% of the sale consideration, time which was originally fixed as 90 days was extended for a period of two years and three months further. In this regard in the cross- examination the plaintiff states as follows:-
“///fpiua gj;jpuj;ij btspna itj;J 45 yl;rk; fld; th';fpapUg;gjhf gpujpthjpfs; brhd;dhu;fs;/ me;j flid bfhLj;j egu; btspa{upy; ,Ug;gjhy;
mtu;fs; tUtjw;F 2 Mz;Lfs; fhyk;
MFk; vd;W brhd;djd; ngupy; 21-4 tUlkhf fhy ePl;og;g[ bra;ag;gl;lJ//// ” Thus, it may be seen that it is the case of the plaintiff in his evidence that the defendants have told him that they have mortgaged the original https://www.mhc.tn.gov.in/judis 16/27 A.S.No.342 of 2015 documents with the third party who is residing outside the town and therefore it would take two years for them to come back and therefore the time was extended for two years and three months.
17.When questioned about whether he did title verification, the plaintiff answers in his cross-examination as follows:-
“///fpiua xg;ge;jk; nghLtjw;F Kd;ghf
tpy;y';fk; nghl;L ghh;ff ; tpy;iy/ fpiuak;
bfhLf;f Kw;gl;ltu; tha;bkhHpahf
tpy;y';fk; ,y;iy vd;W brhd;djd;
mog;gilapy; fpiuak; nghl;nld;/ jhth
brhj;ij ehd; neuoahf ghu;itapltpy;iy
/// ”
18.Further the plaintiff answered as follows with reference to the title of the defendants:-
“////xg;ge;jk; nghLtjw;F Kd;ghf
brhj;J tPuhj;jhSf;F vg;go ghj;jpag;gl;lJ
vd;gij bjupe;J bfhz;nld;/ mJ
mtUila g{h;tf P brhj;J/ mry; gj;jpuk;
vJt[k; vd;dplk; fhl;ltpy;iy/ gl;lhita[k;
ghu;ff
; tpy;iy/ ”
19.The following answers in his cross-examination are very relevant, as it may be seen that the plaintiff says that he never saw the suit schedule property before entering into the contract and he did not even apply for an https://www.mhc.tn.gov.in/judis 17/27 A.S.No.342 of 2015 encumbrance certificate. He neither saw the parent documents and at the time of entering into the agreement, he was told that it was the ancestral property of the defendants and accordingly, it was written in the agreement. He states that only at the time of payment of the second installment, it was mentioned to him that the suit schedule property was purchased by them. At that time he applied for encumbrance:
“ehd; Kjypy; xg;ge;jk; ngrpanghJ gpujpthjpfs; tHf;Fr; brhj;J g{h;tf P g{kp vdr; brhd;dhu;fs;/ gpd;dpl;L ,uz;lhtJ Kiw Kd;gzk; bfhLj;jhf brhy;yg;gLk;nghJ fpiuak; bgw;w g{kp vd;W brhd;dhu;fs;/ Kjy; Kiw Kd;gzk;
bfhLf;Fk;nghJ ehd; Mtzj;ij
ghu;ff
; tpy;iy/ g{u;tf
P brhj;J vdr;
brhd;djd; mog;gilapy; xg;ge;jj;jpy;
mt;thW vGjp ifbaGj;jpl;nld/ 2tJ
Kiw Kd;gzk; bfhLf;Fk; nghJ
tpy;y';fr;rhd;W nghl;Lg;ghu;jn ; jd;/// ”
As a matter of fact, P.W.3, in his cross-examination answered as follows:-
“...,uz;lhtJ jtiz gzk;
bfhLg;gjw;fhf vd;W bjupe;J bfhz;nld;/
vjw;fhf fhybfL bfhLf;fg;gl;lbjd;w
tpguk; vdf;F bjupa[k;/ vd;d fhuzj;jhy;
tPuhj;jhSk;. ts;spahj;jhSk; fpiuak;
bfhLf;f Koatpy;iy vd;gjw;F mry;
gj;jpuk; t';fpapy; ,Ug;gjhf
brhd;dhu;fs;///”
20.This apart when questioned about the place in which the advance amount was handed over to P.W.1 he answered as follows:-
https://www.mhc.tn.gov.in/judis 18/27 A.S.No.342 of 2015 “.... 2tJ Kiwahf Kd;gzk;
bfhLf;Fk;nghJ 1k; gpujpthjp tPl;ow;F ngha; ,Uf;fpnwd;/ thrhM1/ kw;Wk;
tHf;Fiuapy; brhy;yg;gl;Ls;s 1k; gp/thjp tPl;ow;F ehd; brd;Ws;nsd;/ bts;snfhtpy; me;j tPL v';F ,Uf;fpwJ vd;W vdf;F bjupahJ//”
21.The other witnesses also confirm the fact that the advance amount was handed over to the address mentioned in the plaint i.e., Vellai Kovil residence and not in Semmandampalayam residence to which the pre-suit notice was issued and as such the postal cover returned as left. Thereafter a telegram is given after three months after the pre-suit notice is returned.
Thus, it may be seen that the facts that originally the agreement was 90 days and thereafter, it was extended to two years and three months and no reason whatsoever has been mentioned in the plaint for such extension; the plaintiff did not even visit the property before entering into the agreement; he did not apply for any encumbrance certificate in spite of the fact that he was in the business of buying and selling the property; the plaintiff had as a matter of fact admits that he applied for encumbrance certificate at the time of payment of second instalment and therefore it goes without saying that he knew that the property is mortgaged to the Bank but did not plead the same in the plaint; the plaintiff however in his cross-examination states that the defendants stated that they have mortgaged the property with somebody else who is residing out of the town and that it will take two years for them to https://www.mhc.tn.gov.in/judis 19/27 A.S.No.342 of 2015 return so that the property can be redeemed and the plaintiff states that on the strength of the said averments he paid a sum of Rs.40 lakhs. It is further startling and intriguing to note that at the time of payment of the second installment the defendants changed their version that the property was their self acquired property and that they have mortgaged the same and the original deeds are not with them and in spite of all this the plaintiff paid a sum of Rs.40 lakhs as cash. It is thus extremely hard to believe that such transaction could have happened from the point of view of any reasonable man and even a gullible person could not have ventured into.
22.It is in this context the categorical pleading of the defendants that the suit agreement Ex.A1 and the endorsement Ex.A2 are forged becomes critical. The findings of the Trial Court that the defendants should have referred the document for examination by the handwriting expert is erroneous in law. As rightly contended by the learned counsel for the appellant, the Honourable Supreme Court of India in the Judgment Thiruvengadam Pillai Vs. Navneethammal and another24 has held in paragraph No.19 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 https://www.mhc.tn.gov.in/judis 24 (2008) 4 SCC page 530 20/27 A.S.No.342 of 2015 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 defendants, 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.” (emphasis supplied)
23.To quote the Judgment of the Honourable Supreme Court of India in Anil Rishi Vs. Gurbaksh Singh25 in paragraphs Nos.8 and 9 as held as follows:-
“8.The initial burden of proof would be on the https://www.mhc.tn.gov.in/judis 25 (2006) 5 SCC page 558 21/27 A.S.No.342 of 2015 plaintiff in view of Section 101 of the Evidence Act, which reads as under:
“101. Burden of proof.-- Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist.
When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.”
9.In terms of the said provision, the burden of proving the fact rests on the party who substantially asserts the affirmative issues and not the party who denies it. The said rule may not be universal in its application and there may be an exception thereto.
The learned trial court and the High Court proceeded on the basis that the defendant was in a dominating position and there had been a fiduciary relationship between the parties. The appellant in his written statement denied and disputed the said averments made in the plaint.” (emphasis supplied)
24.In our view, the law is too well settled that if the defendants deny the execution of the agreement, it is for the party who propounds the document and asserts the fact about the execution of the document to prove that the signature and the left thumb impression were that of the defendants and therefore it is the plaintiff who has miserably failed in not resorting to such a course and therefore the findings of Trial Court in this regard is erroneous in law. The further findings of the Trial Court that on the basis of the evidence of P.Ws.1 to 4 the plaintiff has proved the execution is https://www.mhc.tn.gov.in/judis 22/27 A.S.No.342 of 2015 absolutely perverse, for the Trial Court simply brushed aside the above important facts narrated by us. The finding of the Trial Court suffers from not even considering the above evidence on record. Therefore the findings of the Trial Court in respect of the issue Nos.1 and 2 are absolutely unacceptable and require to be reversed. We find that on the face of it, the agreement is unbelievable, the terms are improbable and on the face of it, the behaviour of the plaintiff is startling and illogical. There is absolutely no proof for payment of money. In the present case, unless the signature or the left thumb impression found in Exs.A1 & A2, are proved satisfactorily by sending the document for examination of forensic expert, the plaintiff's case cannot be believed, therefore we answer the question No.1 in favour of the appellants/defendants and against the respondent/plaintiff. H. Question No.2:
25.It may be seen that the defendants have marked the original application pending before the Debt Recovery Tribunal and the Judgment of the Debt Recovery Tribunal as Exs.B1 to B4. A perusal of the Ex.B4/Judgment, would us clear that the defendants Veerathal and Valliyathal, are arrayed as Respondents 10 and 12 in the said case and Document No.135, dated 17.01.1994 is the memorandum of deposit of title https://www.mhc.tn.gov.in/judis 23/27 A.S.No.342 of 2015 deeds and by the same the original sale deed dated 08.06.1972, bearing Document No.1129 of 1972 along with encumbrance certificate, Kist receipt, certificate by V.A.O., R.S.R., extract, Field Map, Chitta extract, Adangal extract are duly deposited with the plaintiff Bank and the mortgaged properties are ordered to be sold towards the realisation of the decreed amount. The agreement of sale does not specifically mention anything about the agreement being subject to the mortgage or the non- availability of the original parent deed. The mortgage was prior to that of the alleged agreement of sale. Therefore, without any finding as to the bonafide of the transaction, the Trial Court simply returned the finding that it is not for the Trial Court to go into the question and that the rights of the plaintiff vis-à-vis, the Bank , is again erroneous in law, as the defendant did not even have absolute right, title and interest to convey the suit schedule property as on the date of the alleged agreement. This Court had in R. Velammal -Vs- R. Daya Siga Mani26, had held that a prior mortgage or encumbrance cannot deprive the vendee of a right to decree for specific performance. However, the fact that the right of the defendant/mortgagor stood extinguished had to be taken into account. Therefore, when the property itself was encumbered based on Ex.B4 and now pending the proceedings also duly sold and the defendants had no subsisting proprietary interest https://www.mhc.tn.gov.in/judis 26 AIR 1993 Mad 100 24/27 A.S.No.342 of 2015 whatsoever in the property to convey the property, the decree cannot be passed on surmises, as if the plaintiff could get something from the Bank. Decreeing a suit for specific performance which is an equitable relief, should be on a certain clear reasons and acceptable evidence and we, therefore, reverse the finding of the Trial Court in this regard and answer the question that the plaintiff suit is bound to fail on this score also. I. Question No.3 & Findings on Issues:
26.In view of our finding for the question No.1 that the very agreement itself is unbelievable, the plaintiff having miserably failed to prove the agreement and the endorsement, there is no further question of considering the everyday readiness and willingness, prompt issue of pre-suit notice, and the timing of the filing of the suit and the deposit of money etc. In this case, as we have already held that the plaintiff has even failed to prove the Ex.A1/ suit agreement and Ex.A2/ suit endorsement answering of this issue becomes superfluous and academic. We, therefore, reverse the finding of the Trial Court holding by us that the plaintiff utterly failed to show that the plaintiff was always ready and willing to perform his part of the contract on the premise that the transaction itself has not been proved.
27.For all the reasons stated above, we reverse the finding in respect https://www.mhc.tn.gov.in/judis 25/27 A.S.No.342 of 2015 of the re-casted issue No.1, and hold that execution of the sale agreement and endorsement have not been proved and answer the issue in favour of the defendants. As a corollary, the finding in respect of issue No. 2 is also upturned. We reverse the finding of the Trial Court in respect of the issue No.3 that the plaintiff was always ready and willing to execute the contract and that the plaintiff is entitled to specific performance. J. The result:
(i) The A.S.No.342 of 2015 stands allowed;
(ii) Consequently, O.S.No.255 of 2010 on the file of the III-Additional District Judge, Tharapuram, stands dismissed in toto;
(iii) The appellants herein shall be entitled for the costs throughout.
(T.R., J.) (D.B.C., J.)
23.06.2022
Index : yes/no
Speaking /Non-Speaking order
klt
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A.S.No.342 of 2015
T.RAJA, J.,
and
D.BHARATHA CHAKRAVARTHY, J.,
klt
Pre-Delivery Judgment in
A.S.No.342 of 2015
23.06.2022
https://www.mhc.tn.gov.in/judis
27/27