REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 6396 OF 2002
D.R. Rathna Murthy ...
Appellant
Versus
Ramappa ...Respondent
J U D G M E N T
Dr. B.S. CHAUHAN, J.
1. This appeal has been filed against the judgment and order dated
2nd April, 2002 passed by the High Court of Karnataka at
Bangalore in R.S.A No. 446 of 1996, reversing the judgment of
the First Appellate Court dated 10.3.1999, passed in RFA
No.133 of 1995; and restoring the judgment and decree of the
trial court dated 15.11.1995 in O.S. No. 122 of 1992. The trial
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court had dismissed the suit of the plaintiff/appellant
(hereinafter called the appellant) for specific performance.
2. Facts and circumstances giving rise to this appeal are that the
appellant, D.R. Rathna Murthy, had purchased the land in
question vide registered sale deed dated 23rd April, 1986 from
one A.M. Venkatachalapathy Setty for a consideration of Rs.
10,000/-. On the very next day, the appellant sold the said land
vide registered sale deed dated 24th April, 1986, to the
defendant/respondent (hereinafter called the respondent) for
consideration of Rs.10,000/- only and delivered the possession
to him. In pursuance of the said sale deed dated 24th April,
1986, the respondent is in possession of the suit land. The
appellant subsequently served a legal notice upon the
respondent in the year 1991-1992 demanding the reconveyance
of the suit property on the ground that registered sale deed
executed in favour of respondent dated 24th April, 1986 was a
conditional sale deed and appellant had a right to repurchase the
sale land for the same consideration of Rs.10,000/- within a
period of ten years from the date of execution of the sale deed.
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3. The respondent did not make any response to the said legal
notice, thus, the appellant filed Original Suit No. 122 of 1992
before the court of Munsiff and JMFC Court, Mulbagal,
seeking the relief of specific performance. The said Suit was
contested by the respondent contending that there was an
absolute sale deed in his favour and it was not a conditional sale
deed, the term of reconveyance had been fraudulently inserted
by the appellant after the execution of the document.
Manipulation had been done at several places in the said sale
deed after the execution and the appellant had put in the word
“Avadhi”, which means tenure, just to make the same a
conditional sale deed. The trial court considered the case of
both the parties and dismissed the Suit vide judgment and
decree dated 15th November, 1995.
4. Feeling aggrieved, the appellant approached the First Appellate
Court by filing RFA No.133/1995, and the appeal was allowed vide
judgment and decree dated 10th March, 1999. The First Appellate
Court held that it was a conditional sale deed, thus, the Court directed
the respondent to execute the sale deed in favour of the appellant. The
respondent approached the High Court by filing the Regular Second
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Appeal i.e. R.S.A. No. 446 of 1999 under Section 100 of Code of
Civil Procedure, 1908 (hereinafter referred to as `C.P.C.’) and the said
appeal has been allowed by the High Court vide judgment and order
dated 2nd April, 2002. Hence, this appeal.
5. Shri Naveen R. Nath, learned counsel appearing for the
appellant has submitted that the sale executed by the appellant in
favour of the respondent was a conditional sale deed and thus, he had
a right to repurchase the land any time within a period of ten years
from the date of the execution of the sale deed. The appellant
exercised his option within the period prescribed in the conditional
sale deed. The trial court has erred in dismissing the suit, however, the
First Appellate Court after proper appreciation of the entire evidence
on record came to the conclusion that it was a conditional sale deed
and not a case of absolute sale. The High Court ought not to have
reversed the said findings of fact as it is not permissible to appreciate
the evidence in second appeal, and no substantial question of law was
involved in the appeal. The High Court recorded a totally perverse
finding that it was a case of absolute sale. Hence, the appeal deserves
to be allowed.
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6. On the contrary, Shri Girish Anantha Murthy, learned counsel
appearing for the respondent, has vehemently opposed the appeal
contending that the sale deed in favour of respondent was an absolute
sale deed and it is not a conditional sale deed. The word “Avadhi” was
inserted in the margin of said deed at three places and a term of
reconveyance within a period of ten years was added in the same
after its execution and prior to registration. Such an insertion of said
word “Avadhi” at three places and the addition of the last clause
providing for reconveyance was without the consent and knowledge
of the respondent; therefore, he cannot be bound by the said terms. In
case of contradictions between the oral evidence of the witnesses of
both the sides, the First Appellate Court should not have re-
appreciated the entire evidence and thus, there was no occasion for the
First Appellate Court to reverse the findings of fact recorded by the
trial court. The judgment and order of the High Court does not
require any interference, the appeal lacks merit and, accordingly, is
liable to be dismissed.
7. We have considered the rival submissions made by learned
counsel for the parties and perused the record.
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Undoubtedly, the High Court can interfere with the findings of
fact even in the Second Appeal, provided the findings recorded by the
courts below are found to be perverse i.e. not being based on the
evidence or contrary to the evidence on record or reasoning is based
on surmises and misreading of the evidence on record or where the
core issue is not decided. There is no absolute bar on the re-
appreciation of evidence in those proceedings, however, such a course
is permissible in exceptional circumstances. (Vide Rajappa
Hanamantha Ranoji v. Mahadev Channabasappa & Ors., AIR SC
2000 2108; Hafazat Hussain v. Abdul Majeed & Ors., (2001) 7
SCC 189; and Bharatha Matha & Anr. v. R. Vijaya Renganathan
& Ors., JT 2010 (5) SC 534)
8. The sale deed dated 24th April, 1986, is a registered document.
The document is admitted by the other side. Most of the contents are
also admitted. However, it is disputed that the word “Avadhi” and
last clause have been inserted subsequent to execution of the
document. In such a fact-situation, the probative value of that part of
the document is required to be assessed. It becomes a case as if the
respondent had never intended to have conditional sale deed. He
never intended to enter into a contract to which certain part was not
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even known to him. The part of the contract as had been inserted after
his signature i.e., after execution of the document cannot be binding
upon him. If such averments are accepted, it becomes a clear cut case
of manipulation/fraud by the appellant. (Vide Dularia Devi v.
Janardan Singh & Ors., AIR 1990 SC 1173)
9. The appellant has examined himself and two other witnesses as
PW.1 to PW.3. The other persons had been the scribe and attesting
witnesses to the document. Copies of the said sale deed were
produced and marked as Ex. P-1 to P-4. The respondent examined
himself as DW-1. Two other witnesses including one attesting witness
were also examined by him in defence. The trial court framed four
issues :
1) Whether plaintiff proves that under sale deed dated
24.4.86 he has got right to purchase the suit
schedule property?
2) Whether plaintiff further proves that he is entitled
for the specific relief of specific performance of
contract?
3) Whether the defendant proves that suit is not
maintainable and not complied with the mandatory
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provisions required under Section 16(3) of the
Specific Relief Act?
4) To what relief the parties are entitled?
10. The trial court appreciated the evidence of the parties and their
witnesses and came to the conclusion that the word “Avadhi” and the
last part of the sale deed were inserted after the execution of the
document making it a conditional sale deed from absolute sale deed.
The trial court while reaching this conclusion relied upon the
deposition of Gopalakrishna (PW.2), the attesting witness of the sale
deed, wherein he had admitted in cross-examination that there was no
clause as to after how many years the suit land has to be repurchased
and the word “Avadhi” was written in the margin after completion of
the document. The last part i.e. Ex. D-2 was added after the execution
of the sale deed i.e. Ex. P-4, thus, it was evident that the appellant and
his scribe inserted the word “Avadhi” in Ex.P-4 and also inserted the
portion Ex.D-2 and it is so evident even to the naked eyes. In view of
the aforesaid findings, the suit was dismissed. The First Appellate
Court had unnecessarily laboured to find fault with the trial court’s
judgment and without realising that there was contradiction in the oral
testimony of two marginal witnesses, re-appreciated the entire
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evidence and reached the contrary conclusion. The High Court
realising that the findings of facts recorded by the First Appellate
Court were perverse, proceeded with appreciation of evidence and
came to the conclusion that the trial court was right in holding that the
word “Avadhi” had been inserted at three places in the margin and last
part of the sale deed Ex.D-2 in Ex.P-4 had been added subsequent to
the execution of the sale deed. The findings so recorded by the High
Court are based on a proper appreciation of evidence and the statutory
provisions applicable in the case. Admittedly, there had been
interlineations in the sale deed.
11. Section 20 of the Registration Act, 1908 reads as under:
“Documents containing interlineations, blanks,
erasures or alterations.-
(1) The registering officer may in his discretion
refuse to accept for registration any document in
which any interlineations, blank, erasure or
alteration appears, unless the persons executing the
document attest with their signatures or initials
such interlineations, blank, erasure or alteration.
(2) If the registering officer registers any such
document, he shall, at the time of registering the
same, make a note in the register of such
interlineations, blank, erasure or alteration.”
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It appears that vide Karnataka Act No. 41 of 1984, Clause 2 of
Section 20 has been deleted, w.e.f. 7th November, 1986, however,
corresponding provisions in Karnataka Registration Rules, 1965
(hereinafter called the Rules), providing for similar requirement have
not been amended. Rule 41 of the said Rules provided examination of
a document by the Registering Officer and made an obligation on his
part that if there are unattested interlineations, alterations, erasures or
blanks, which the Registering Officer considers should be attested, by
the signatures of the executant, he shall not alter the document himself
in any way.
12. Rule 42 of Rules reads as under:
“Manner of noting interlineations, etc.- Each
important interlineations, erasure or alteration
occurring in a document shall, whenever possible,
be caused to be noted or described at the foot of
the document and to be signed by the executant
before the document is accepted for registration….
“
Therefore, Rule 42 mandatorily requires that if there is any
interlineation, erasure, alteration etc., it must be mentioned and
described at the foot of the document and must be duly signed by the
executant before the document is accepted for registration.
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13. In the instant case, we have, ourselves examined certified copy
of the said sale deed, and found that the provisions of Rule 42 have
not been complied with. Nothing has been endorsed at the foot of the
sale deed, nor it bears signatures of the executant. The word
“Avadhi” has been inserted at three places in the margin of the sale
deed. It has not be attested by the executant. The part Ex. D-2 had
been inserted in Ex.P-4 in an unusual manner. The entire sale deed
has been scribed in double space while the part Ex.D-2 is in single
space. It was necessary to do so as the parties had already signed the
document. Had it been written in ordinary course, it could have gone
below the signatures of the parties in the sale deed. Therefore, it is
crystal clear that such insertion had been made to convert the absolute
sale deed into a conditional sale deed. Thus, we are of the view that
the trial court and the High Court have rightly believed the testimony
of the respondent that there was no mention of Ex.D-1 and D-2 in
Ex.P-4 and the appellant was not entitled for reconveyance of the suit
property. The manner in which interlineations have been made in the
document itself reveal that addition was made subsequent to the
execution of the document otherwise there was enough space to insert
such a clause in the same manner in which the entire sale had been
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scribed. This particular clause had to be squeezed in a small space
and to adjust the same before the signature already made by the
appellant. The First Appellate Court committed grave error in not
properly appreciating the evidence of D.R. Rathna Murthy (PW.1) and
Gopalakrishna (PW.2) in this regard, though the Court took note of
the admission made by Gopalakrishna (PW.2), the attestator, that no
time was fixed for reconveyance, thus, the term “Avadhi” was written
in `margin’ and also Ex.D-2 was written after Ex.P-4 has completely
been written.
14. D.R. Rathna Murthy (PW.1) had also admitted that he sold the
land to the respondent as he was in dire need of money to pay to his
Vendee. He had himself purchased the property only one day before
i.e. on 23rd April, 1986. We fail to understand if the appellant was not
having money, why did he purchase the property from his vendor on
23rd April, 1986 and in order to pay him the sale consideration sold it
to the respondent on the very next day i.e. on 24th April, 1986 for the
same amount. There is nothing on record to show as under what
circumstances the sale deed had been executed in favour of the
appellant by his vendor without receiving the sale consideration and
how could he be put in possession.
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15. The First Appellate Court failed to appreciate that there was no
shara (noting) in respect of interlineations in the sale deed. The
respondent had deposed as under:
“At that time there was no mention in respect of
conditional sale deed. In front of sub registrar
nothing was spoken about the conditional sale
deed. At the time of purchase the suit land was
fallen land. After purchase I formed the land and
improved its fertility. I spent about 10 to 15,000/-
for the improvement of the land. I grow ragi and
ground nut crops. I dig one Well in the suit land. I
spent Rs.20,000/- to dug the Well. Prior to filling
of this suit plaintiff did not approach me with a
request to execute sale deed in his favour. No
panchayat was held in respect of the suit lands.
Neither witnesses nor scribe intimated me about
the Avadhi transaction in respect of suit lands. At
the time of change of revenue records the plaintiff
did not file any objections contending that the sale
is conditional one. I came to know about the
Avadhi only after filing of this suit. I sent reply
notice to the plaintiff’s legal notice. After sale the
plaintiff is not related to suit land. I have not
agreed for re sale of suit land”.
Had it been a case of conditional sale, the appellant could have
asked the respondent to wait for mutation or raise the objection before
the Revenue Authorities in spite of the fact that mutation is a revenue
entry and does not refer to the title of the land. Had it been the case of
conditional sale deed enabling the appellant to repurchase the land any
time within ten years, the respondent could not have spent huge
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amount of his life savings for improving the land, nor would he have
dug a Well in the suit land spending twenty thousand of rupees. The
aforesaid circumstances make it clear that the respondent had never
agreed for reconveyance.
15. The interlineations had been made at four places in the sale
deed. Word “Avadhi” had been mentioned at three places in the
margin of the sale deed. The appellant did not attest the said word by
putting his signatures at the time of registration. Attestation
testifies/certifies the genuineness of the document. Attestation and
execution are different acts, one following the other. Execution
includes delivery and signing of the document in the presence of the
witnesses and also the whole series of acts or formalities which are
necessary to render the document valid. Attestation of sale deed is
imperative. In the instant case, we find that the animus to attestation
remain totally absent. It is settled legal proposition that the document
may be admissible but probative value of the entries contained therein
may still be required to be examined in the fact and circumstances of a
particular case. (Vide State of Bihar & Ors. v. Sri Radha Krishna
Singh & Ors., AIR 1983 SC 1984; and Bharatha Matha & Anr.
(Supra).
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16. The case is required to be examined from another angle also.
The appellant had purchased the land for a consideration of
Rs.10,000/-. On 23rd April, 1986, he sold the land on the very next
date for a sum of Rs.10,000/- reserving his right to purchase the land
for the same consideration within a period of ten years. In normal
circumstances, the vendor would not agree for reconveyance for the
same consideration for the reason that the value of the land generally
goes upwards and within a period of ten years it could have at least
become double. (See Sardar Jogender Singh v. State of U.P., (2008)
17 SCC 133; and Satish & Ors. v. State of U.P. & Ors., (2009) 14
SCC 758).
17. The aforesaid circumstances make it abundantly clear that the
appellant has made inter-lineations after the document stood executed.
The said additions were made without the consent and knowledge of
the respondent. In fact the mind of the respondent did not actuate with
his hand while putting his thumb impression on the said sale deed at
the time of registration. Thus, the additions so made by the appellant
cannot be binding on the respondent. The additions in question are
surrounded by the suspicious circumstances of a grave nature and,
therefore, the same are required to be ignored. The contract being
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severable, the terms of contract included by these additions being
void, cannot be taken note of.
In view of the above, we find no force in the appeal and it lacks
merit and, is accordingly, dismissed. There shall be no order as to
costs.
……………………….J.
(P. SATHASIVAM)
………………………J.
(Dr. B.S. CHAUHAN)
New Delhi,
October 8, 2010
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