In the High Court of Judicature at Madras Dated: 15.10.2009 Coram: The Honourable Mr.Justice M.JAICHANDREN S.A.No.1252 of 1995 1. D.Kuppuswami 2. Kuppammal 3. Vengatesan Minor rep. by next friend and natural guardian and mother Kuppammal . Appellants Vs. 1. P.Arumuga Naidu (died) 2. Mrs.A.Padma 3. Mr.A.Sathi 4. Mr.A.Palani 5. Mrs.Jaya 6. Mrs.Rani Respondents 2 to 6 are brought on record as LRs of the deceased, sole respondent vide order of this Court dated 16.7.2007 made in C.M.P.No.10687 of 1996 . Respondents This second appeal has been filed against the judgment and decree dated 21.9.1994 made in A.S.No.2 of 1994 on the file of the Sub Court, Tirupattur, confirming the judgment and decree dated 30.9.1993 made in O.S.No.777 of 1983 on the file of the District Musif Court, Tirupattur. For Appellants : Mr.T.P.Sankaran For Respondents : Mr.R.Vijayaraghavan J U D G E M E N T
This second appeal has been filed against the judgment and decree, dated 21.9.1994, made in A.S.No.2 of 1994, on the file of the Sub Court, Tirupattur, confirming the judgment and decree, dated 30.9.1993, made in O.S.No.777 of 1983, on the file of the District Musif Court, Tirupattur.
2. The plaintiffs in the suit, in O.S.No.777 of 1983, are the appellants in the present second appeal and the defendant is the respondent in the present second appeal. However, in view of the fact that the respondent had died, his legal heirs had been brought on record as respondents 2 to 6, by an order of this court, dated 16.7.2007 made in C.M.P.No.10687 of 1996. The appellants herein, who were the plaintiffs in the suit, had filed the suit, in O.S.No.777 of 1983, praying for the relief of specific performance and for costs.
3. The brief facts of the case, as stated by the plaintiffs in the plaint filed in O.S.No.777 of 1983, are as follows:
The property, morefully described in the scheduled appended to the plaint, is the self acquired property of the plaintiffs. From the date of purchase, the plaintiffs are in possession and enjoyment of the said property and they have been raising crops therein. Thus, the plaintiffs are the absolute owners of the suit property. the plaintiffs sold away the suit property in favour of the defendant, namely, P.Arumuga Naidu, for a sum of Rs.6,000/-, as per the registered sale deed, dated 3.7.1980. The possession in respect of the suit property, had been delivered to the defendant, on the same date.
4. The defendant had undertaken to reconvey the suit property in favour of the plaintiffs, by entering into a reconveyance agreement, on 3.7.1980. According to the said agreement, the defendant had agreed to reconvey the suit property, in favour of the plaintiffs, for a sum of Rs.6,000/-. An advance of Rs.50/- had also been paid, on 3.7.1980. The defendant had further agreed to execute the sale deed, in favour of the plaintiffs 1 and 3, after receiving the balance sale consideration of Rs.5,950/-, on or before 2.7.1983, within three years from the date of the reconveyance agreement. Thus, the defendant had agreed to reconvey the suit property, as and when the plaintiffs demanded the same. Thereafter, the plaintiffs had demanded the reconveyance of the suit property and had therefore, asked the defendant to execute the registered sale deed after receiving the sale consideration of Rs.5,950/-, on several occasions. However, the defendant had not taken steps to reconvey the suit property, to the plaintiff, as already agreed.
5. On several occasions, the plaintiffs had been demanding the reconveyance of the suit property. However, they had been postponing the event on one pretext or the other. Thereafter, on 30.6.1983, the plaintiff had requested the defendant to execute the sale deed in their favour. Though the defendant had assured the plaintiffs that he would execute the sale deed, soon thereafter, he had not done so. In such circumstances, the plaintiffs had issued a notice through their counsel, on 1.7.1983, calling upon the defendant to execute the sale, as agreed by the defendant, under the agreement of reconveyance, dated 3.7.1980. Even though the plaintiffs had always been ready and willing to perform their part of the contract, the defendant had failed to perform his duty.
6. In such circumstances, the plaintiffs had filed the present suit praying for the relief of specific performance and for costs.
7. In the written statement filed on behalf of the defendant, he had denied the allegations made in the plaint. However, the defendant had admitted that the plaintiffs had sold the suit property, to the defendant, on 3.7.1980, for a sum of Rs.6,000/- and that the possession of the suit property had been delivered to the defendant, who has been in possession and enjoyment of the suit property as its lawful owner, pursuant to the said sale. However, the defendant had denied the claim of the plaintiffs that a reconveyance agreement, dated 3.7.1980, had been entered into between the plaintiffs and the defendant, for a sale consideration of Rs.6,000/-.
8. The defendant had further stated that the allegations of the plaintiffs that they had received a sum of Rs.50/-, on 3.7.l980, as advance, is false. The defendant had never agreed to execute a sale deed, in respect of the suit property, in favour of the plaintiffs, as alleged by them. Therefore, the demand made by the plaintiffs, for the reconveyance of the suit property, is baseless. The claim of the plaintiffs that they had requested the defendant to execute the sale deed in their favour is also false. The alleged reconveyance agreement, dated 3.7.1980, is a forged document. Since, there is no cause of action for filing of the suit, the suit is liable to be dismissed.
9. An additional written statement had been filed by the defendant stating that, in view of the dismissal of I.A.No.1401 of 1985, on 21.11.1985, and I.A.No.1399 of 1985 and I.A.No.1400 of 1985, on 21.11.1985, the plaintiffs 4 and 5 cannot be brought on record, as the legal representatives of the third plaintiff. Further, the plaintiffs 4 and 5 are the representatives of the first plaintiff. Hence, it is prayed that the suit is liable to be dismissed.
10. In view of the averments made in the plaint filed on behalf of the plaintiffs and the written statements filed by the defendant and in view of the submissions made on their behalf, the trial Court had framed the following issues for consideration:
“(i) Whether or not the claim of the plaintiffs that the defendant had entered into an agreement of reconveyance, dated 3.7.1980, is correct?
(ii) Whether or not the plaintiffs had paid an advance of amount of Rs.50/- as part of the sale consideration?
(iii) Whether or not the plaintiffs had demanded that the defendant should reconvey the suit property, in accordance with the agreement of reconveyance?
(iv) Whether the claim of the defendant that the reconveyance agreement, dated 3.7.1980, has been forged is correct?
(v) What reliefs the plaintiffs are entitled to?”
11. The trial Court had also framed the two additional issues, which are as follows:
“(i) Whether the plaintiffs 4 and 5 are the legal heirs of the third plaintiff?
(ii) Whether the inclusion of the plaintiffs 4 and 5 as legal heirs of the third plaintiff is valid in law?”
12. Four witnesses had been examined on behalf of the plaintiffs and one witness had been examined on behalf of the defendant. While Seven documents had been marked as exhibits on behalf of the plaintiffs, no document had been marked on behalf of the defendant.
13. In view of the oral, as well as the documentary evidence adduced on behalf of the plaintiffs, as well as the defendant, the trial court had come to the conclusion that the reliefs sought for by the plaintiffs cannot be granted. The trial Court had found that P.W.1 examined on behalf of the plaintiffs had stated, during his cross examination, that he did not know the survey number of the property, in respect of which, Exhibit A.2 reconveyance agreement, dated 3.7.1980, had been written. He did not know the day on which the said agreement was made.
14. The trial Court had also found that Exhibit A.2 reconveyance agreement had not been registered and that it had also not been written on a stamp paper, with the correct value. He had also stated that he did not write any letter to the defendant asking him to execute a sale deed, in view of the reconveyance agreement, dated 3.7.1980, marked as Exhibit A.2.
15. It had also been found that P.W.2 had admitted, during his cross examination, that P.W.1 is his son-in-law. He had further stated that he had not seen the parent document, when Exhibit A.2, reconveyance agreement, was written. Further, he had admitted that the signature of the defendant in Exhibit A.2 has not been verified and that he had not written any note about the insertion made in Exhibit A.2.
16. The trial court had also taken note of the fact that D.W.1, during his cross examination, had stated that P.W.2 and P.W.4 were related to the plaintiffs and therefore, they cannot be considered to be independent witnesses.
17. The trial Court had also noted that the original sale deed, dated 3.7.1980, marked as Exhibit A.1, had not been filed before the Court. Exhibit A.2 reconvenayce agreement has not been written on a stamp paper, with the correct value. Further, nothing has been mentioned as to who would be liable to bear the cost, that would be incurred during the execution of the sale deed, in respect of the suit property. Further, there was no mention about the payment of the advance amount of Rs.50/-, said to have been paid at the time of writing of the reconvayance agreement.
18. Further, the plaintiffs had not produced any receipt for the payment of the said amount, nor have they filed any other document to substantiate the said claim. The trial Court had also noted that in the evidence of P.W.1, it has been stated that he did not know the extent of the property in question and that he was not aware of the date on which the Exhibit A.2, the reconveyance agreement, had been entered into. The trial Court had also noted that P.W.3, examined on behalf of the plaintiffs, had stated that he had not verified the signature of the defendant in Exhibit A.2 reconveyance agreement, even though he had written both Exhibits A.1 and A2 documents.
19. In such circumstances, the trial Court had compared the alleged signature of the defendant supposed to have been affixed by him in Exhibit A.2 reconveyance agreement, along with his signature in the vakalat filed by the defendant in the suit, in O.S.No.777 of 1983, and in the written statement and in the deposition copies. On such comparison, the trial Court had found that there was a vast difference between the signature that was found in Exhibit A.2, the reconveyance agreement and those that were found in the vakalat, written statement and in the deposition copies. Further, the trial Court had found that the plaintiffs 4 and 5 are the legal heirs of the deceased third plaintiff. Based on the said reasons, the trial Court had dismissed the suit filed by the plaintiffs, in O.S.No.777 of 1983, by its judgment and decree, dated 30.9.1993.
20. Aggrieved by the judgment and decree of the trial Court, dated 30.9.1993, the plaintiffs in the suit had filed an appeal, in A.S.No.2 of 1994, on the file of the Subordinate Court, Tirupattur. The first appellate Court had framed the following points for consideration:
“1. Whether or not the respondent/defendant had written the reconveyance agreement, dated 3.7.1980?”
21. On considering the evidence available on record, the first appellate Court had found that the defendant had categorically denied the allegations of the plaintiffs that he had signed the reconveyance agreement, dated 3.7.1980, marked as Exhibit A.2. He had also stated that the signature found in the alleged reconveyance agreement, dated 3.7.1980, is not his signature. In view of the denial of the defendant, the first appellate Court had held that it is for the plaintiffs to prove that the signature said to have been affixed on the reconveyance agreement, dated 3.7.1980, belongs to the defendant. Since the plaintiffs had failed to discharge the onus of proof, it became necessary for the trial Court, as well as the first appellate Court, to compare the signature found on the alleged reconveyance agreement of sale, dated 3.7.1980, with the signature found in the vakalat and the written statement filed by the defendant in the suit, in O.S.No.777 of 1983. On such comparison, both the Courts below had found that there was vast difference between the signature found on the alleged reconveyance agreement, marked as Exhibit A.2 and those, which were found in the vakalat and the written statement filed by the defendant. Such an exercise shall be carried out, in accordance with Section 73 of the Evidence Act. Accordingly, the first appellate Court had dismissed the first appeal filed by the plaintiffs, confirming the judgment and decree of the trial Court, dated 30.9.1993.
22. Aggrieved by the concurrent findings of the first appellate Court, made in A.S.No.2 of 1994, the plaintiffs in the suit, who were the appellants in the first appeal, had filed the second appeal before this Court.
23. This court had admitted the second appeal on the following substantial question of law:
Whether the Courts below were correct in stating that the agreement of reconveyance, dated 3.7.1980, is invalid on the ground that the signature of the vendor (defendant/respondent herein) contained therein is not that of his own without examining the signature contained in the reconveyance dated 3.7.1980 by an Handwriting Expert, in view of the decision of the Supreme Court in AIR 1979 S.C.14 and AIR 1992 S.C.2100?
24. The learned counsel appearing for the appellants had submitted that the Courts below had erred in holding that the signature found in Exhibit A.2, dated 3.7.1980, was not the signature of the respondent and that it was fabricated and that the respondent had not executed any agreement for reconveyance of the suit property and that the appellants had not paid any advance of Rs.50/-, as claimed by them.
25. It has also been submitted that the Courts below had failed to note that the genuineness of Exhibit A.2 had been clearly established by the oral evidence adduced on behalf of the appellants. While so, there was no necessity for the Courts below to embark on an investigation, by comparing the signature of the respondent.
26. Both the trial Court, as well as the first appellate Court, had failed to follow the provisions of Section 73 of the Indian Evidence Act that the disputed signature ought to have been compared with the admitted signatures, which were contemporaneous and it should not have been done with the admitted signature obtained subsequent to the date of the disputed signature.
27. It was erroneous on the part of the Courts below to compare the signature with the admitted signature in the vakalat, written statement and the depositions copies, as it could lead to a wrong inference. In fact, the signature ought to have been sent for comparison to an expert, under Section 45 of the Indian Evidence Act. Thus, the conclusions arrived at by the Courts below, in respect of the disputed signature in Exhibit A.2, is not in accordance with the established procedures and the decisions of the Courts of law.
28. The learned counsel appearing for the appellants had also submitted that the Courts below have not given sufficient reasons to come to their conclusions holding that the witnesses examined on behalf of the plaintiffs were interested witnesses. Proper reasons had not been given to reject the evidence adduced on behalf of the plaintiffs. The Courts below had erroneously rejected the evidence of the witnesses examined on behalf of the plaintiffs, based on the presumption that the interested witnesses are necessarily false witnesses. There was no acceptable evidence adduced on behalf of the respondent to support his claim that the reconveyance agreement, dated 3.7.1980, marked as Exhibit A.2, was a forged document.
29. The learned counsel for the appellants had placed before this Court the following decisions in support of his contention that the evidence adduced by the interested witnesses cannot be always taken to be false or incorrect. The evidentiary value of such interested witnesses would have to be assessed based on the facts and circumstances of each case. Their testimony cannot be totally discarded, merely on the ground that they are interested witnesses. The said decisions are as follows:
(i) AIR 1994 SC 748 (SURAJ PAL Vs. STATE OF U.P.)
(ii)AIR 1996 SC 3429 (RAM LAKSHAN Vs. STATE OF U.P) (iii)AIR 1997 SC 3946 (BAITULLAH Vs. STATE OF U.P.)
(iv) AIR 1996 SC 3265 (RAM SANJIWAN SINGH Vs. STATE OF BIHAR)
(v) AIR 1985 SC 1384 (STATE OF U.P.Vs. BALLABH DAS)
(vi) AIR 1983 SC 839 (STATE OF GUJARAT Vs. NAGINBHAI)
(vii)AIR 1992 SC 891 (CHANDRA MOHAN TIWARI Vs. STATE OF MADHYA PRADESH)
(viii)AIR 1971 SC 460 (RAMABHUPALA REDDY Vs. STATE OF A.P.)
(ix) AIR 1976 SC 2304 (SARWAN SINGH Vs. STATE OF PUNJAB)
(x) AIR 1994 SC 1407 (P.S.RAO Vs. STATE OF A.P.)
30. The learned counsel had also relied on the following decisions in support his contention that the disputed signatures can be compared with the admitted signatures, which are contemporaneous and not obtained subsequent to the date of disputed signatures and that such comparison is to be done with sufficient caution. The said decisions are as follows:
1. KESSARBAI Vs. JETHABHAI JIVAN
(AIR 1928 PRIVY COUNCIL 277)
2. SOMASUNDARAM Vs. PALANI (2000-1-L.W.511)
3. GANAPATHY THEVAR Vs. SHANMUGA THEVAR
(2008) 6 MLJ 220
4. CENTRAL BANK OF INDIA Vs. ANTONY HARDWARE MART
(2006 (3) CTC 39)
31. Per contra, the learned counsel appearing for the respondents had submitted that both the Courts below had arrived at the right conclusion on proper appreciation of the evidence available on record. It cannot be said that the plaintiffs had proved their case based on the oral evidence adduced by P.W.1 to P.W.4. The evidence adduced on behalf of the plaintiffs by interested witnesses, cannot be considered to be sufficient proof of the claims made on behalf of the plaintiffs. The witnesses examined on behalf of the plaintiffs could not clearly state the day on which the reconveyance agreement had been concluded. The comparison of the signature by the Courts below was in accordance with the provisions of law enshrined in the Indian Evidence Act, 1872. Further, the Courts below had also examined the conduct of the plaintiffs in arriving at their conclusions. There is no evidence adduced on behalf of the appellants to show that they were always ready and willing to conclude the sale, in accordance with the alleged reconveyance agreement, dated 3.7.1980. In such circumstances, the Courts below had rightly refused to grant the reliefs prayed for by the appellants.
32. In view of the contentions raised on behalf of the appellants, as well as the respondents and on a perusal of the evidence available, this Court is of the considered view that the appellants have not shown sufficient cause or reason to interfere with the concurrent findings of the Courts below. The plaintiffs had failed to establish their claims, by adducing sufficient evidence. There was no proper evidence to show that the respondents had signed the reconveyance agreement, dated 3.7.1980, marked as Exhibit A.2. Proper reasons had not been shown by the appellants for such an agreement to be written and signed on the same day, when the suit property had been sold by the appellants to the respondents.
33. There was no evidence to show that an advance amount of Rs.50/- had been paid to the respondent, as part of the agreed sale consideration of Rs.6,000/-. The appellants had not discharged the onus of proof to show that the signature, that was found in Exhibit A.2, was that of the respondent, especially, when the respondent had asserted that the signature found in the reconveyance agreement, dated 3.7.1980, was not his signature. The Courts below had rightly found that sufficient evidence had not been adduced on behalf of the plaintiffs through, independent witnesses, to prove that the respondent had signed the reconveyance agreement, on 3.7.1980 and that the appellants had always been ready and willing to perform their part of the contract.
34. It is clear that the Courts below have come to their conclusions not only on the basis of the comparison of the disputed and admitted signatures but also on the basis of the oral, as well as the documentary evidence available on record. In such circumstances, the contentions raised on behalf of the appellants cannot be countenanced. Accordingly, the second appeal is liable to be dismissed. Hence, it stands dismissed. No costs.
To:
1. The Sub Court, Tirupattur,
2. The District Musif Court,
Tirupattur
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