IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated 08.02.2011
Coram:
The Honourable Mr. Justice R.S.RAMANATHAN
S.A. No. 1150 of 1997
Govindasamy Gounder
... Appellant/ Plaintiff ..vs..
1. Annamalai
2. Ramachandran ... Respondents/
Defendants
Second Appeal filed under Section 100 of Civil Procedure Code against the Judgement and Decree dated 23.9.1996 made in A.S.No.2 of 1995 on the file of the Subordinate Judge's Court, Tirupattur by reversing the Judgement and Decree of the Additional District Munsif's Court, Tirupattur made in O.S.No.432 of 1983 dated 28.9.1994.
For Appellant ... Mr. V. Raghavachari For Respondents ... Mr. D.Rajendran
J U D G E M E N T
The plaintiff in O.S.No.432 of 1983 on the file of the Additional District Munsif’s Court, Tirupattur is the appellant.
2. The plaintiff filed the suit for specific performance of an agreement of sale dated 5.3.1983 executed by the 1st defendant in his favour in respect of the suit property agreeing to sell the same for consideration of Rs.7,975/- and paid an advance of Rs. 250/-. As per the agreement of sale, the balance of sale consideration has to be paid on or before 5.6.1983 and the appellant is always ready to pay the balance consideration and get the document registered and the defendants with a view to avoid the contract made the 2nd defendant who is the son of the 1st defendant to issue a notice stating that he has got half share in the property and the agreement of sale will not bind him. Hence, the suit was filed for specific performance.
3. The 1st respondent/ 1st defendant contested the suit stating that he has not executed the agreement of sale as alleged by the appellant/ plaintiff and the signature found in the agreement of sale is not of the 1st defendant and it was a forged one and due to his illness he was not able to reply to the notice sent by the appellant/ plaintiff and the 2nd defendant is having half share in the suit property.
4. The 2nd defendant filed a separate statement stating that the 1st defendant has no right to execute the agreement of sale in respect of the entire property and the property is an ancestral property and he has got undivided half share in the same and therefore it is not binding on him.
5. The trial Court held that the agreement of sale was a genuine one and the 1st defendant has got right to enter into an agreement of sale in respect of the suit property and decreed the suit as prayed for. The 1st respondent/ 1st defendant filed an appeal and the first appellate Court reversed the finding of the trial Court and held that Ex.A1 the agreement of sale is not a genuine one and therefore the appellant will not get any right under the same and allowed the appeal and dismissed the suit. Hence, the Second Appeal is filed by the plaintiff.
6. At the time of admission of the Second Appeal, the following substantial questions of law were framed by this Court:
(1) Whether the first appellate Court was in error in reversing the Judgement and Decree of the learned trial Judge on the ground that Ex.A1 has not been properly proved ?
(2) Whether the lower appellate Court has failed to appreciate Ex.A3 issued by the 2nd defendant accepting the agreement but challenging the right of 1st defendant to deal with the share of 2nd defendant ?
(3) Whether the 1st respondent who has admitted the execution of Ex.A1 is estopped from denying the sale and the right of the plaintiff to specifically enforce it ?
(4) Whether the 1st defendant could not have entered into Ex.A1 to sell the joint family property in his possession as ‘Kartha’ of the family ?
7. Mr. V.Raghavachari the learned counsel for the appellant submitted that the lower appellate Court erred in holding that the agreement of sale was not a genuine one and it was a forged one without appreciating the evidence of DW1, the 1st respondent and the statement and notice sent by the 2nd defendant/ 2nd respondent. Mr. V.Raghavachari the learned counsel for the appellant further submitted that though in the written statement the 1st respondent had taken the plea that his signature was forged and fabricated, he admitted the signature found in Ex.A1 in evidence and the 2nd defendant issued a notice wherein the agreement of sale was admitted by him and the 2nd defendant admittedly was living with the 1st defendant at the time of issuance of notice and therefore having regard to the admission of the 1st respondent/ 1st defendant and the notice sent by the 2nd defendant marked as Ex.A3, the lower appellate Court ought to have held that Ex.A1 the agreement of sale was a genuine one, executed by the 1st respondent. He further submitted that the 1st respondent being the ‘Kartha’ of the family is entitled to execute the agreement of sale on behalf of his son the 2nd defendant and therefore the 2nd defendant is also bound by the agreement of sale and he cannot challenge it.
8. On the other hand, Mr. D.Rajendran, the learned counsel for the respondents submitted that a casual perusal of Ex.A1 would make it clear that it is only a forged document. According to him, Ex.A1 was written in the stamp papers purchased on 10.4.1981 in the name of one Mani and in the middle of the stamp papers a thumb impression is also found and no explanation has been given by the plaintiff for using the stamp papers which were purchased two years earlier and purchased in the name of some other person and no explanation was given for the presence of thumb impression in the stamp papers. He therefore submitted that Ex.A1 must have been fabricated by the plaintiff and therefore the plaintiff cannot claim any right under the said document. He further submitted that mere admission of signature in a document will not amount to the execution and even though the 1st defendant has admitted in evidence admitting his signature found in Ex.A1 it will not amount to due execution unless it was proved that he signed the document after knowing the contents of the same. In support of his contention he relied upon the Judgement reported in 2011 (1) MLJ 644 (Girish Kumar H.Jain v. Ms. Rani Mary). He further submitted that admittedly the 2nd defendant has got undivided half share in the suit property and therefore the appellant cannot claim the entire property.
9. Heard both sides.
10. In this case we will have to see whether Ex.A1 the agreement of sale was validly executed by the 1st respondent/ 1st defendant. As submitted by the learned counsel for the respondents that though the agreement of sale was written in the stamp papers purchased on 10.4.1981 in the name of one Mani and it also contains thumb impressions, PW1 has stated in his evidence that the stamp papers were purchased two years earlier and that was used in writing the agreement and he asked his cousin Mani to purchase the stamp papers and that was the reason, his cousin Mani’s name was mentioned in the stamp papers. Further, no question was put to PW1 about the thumb impression found in the stamp papers. The appellant/ plaintiff also examined one of the attesting witnesses and he has also supported the case of the appellant with regard to the execution. Further, in the year 1983 there was no prohibition under the Stamp Act that the stamp papers purchased in the name of another cannot be used. Therefore, having regard to the fact that PW1 the appellant herein has explained the reason for using the stamp papers purchased two years earlier and no question was put to PW1 regarding the thumb impression and PW2 has supported the case of the appellant regarding the execution of Ex.A1 and the admission of 1st respondent about the signature in Ex.A1, would prove that Ex.A1 was executed by the 1st respondent/ 1st defendant.
11. Though in the Judgement reported in 2011 (1) MLJ 644 (Girish Kumar H.Jain v. Ms. Rani Mary), this Court has held that mere affixing of thumb impression will not amount to the execution unless the evidence was let in to prove that the executant was aware of the contents of the document, having regard to the facts of the case, the above Judgement cannot be relied. It is not the case of the 1st respondent that his signature was forged. As a matter of fact, though such plea was taken in the written statement in evidence he admitted his signature. He did not say under what circumstances, his signature was obtained. Therefore, when the executant admitted the signature and did not state any reason for his signature in the document it can be presumed in the absence of other evidence that the executant signed the document after knowing the contents. Further, the 2nd respondent who is none other than the son of the 1st respondent issued a notice prior to the filing of the suit admitting the execution of agreement of sale by the 1st respondent in favour of the appellant. Admittedly, both the respondents are living together in the same house and therefore when the 2nd respondent issued a notice stating that agreement of sale executed by the 1st respondent will not bind him, he indirectly admitted the execution of the agreement of sale . For all the above reasons, I hold that the first appellate Court committed an error in holding that Ex.A1 was not properly proved and I hold that Ex.A1 was executed by the 1st respondent/ 1st defendant.
12. The next question is whether the agreement of sale executed by the 1st respondent binds the 2nd respondent and whether the 1st respondent can convey the entire property in favour of the appellant as per Ex.A1. Admittedly, the property is the ancestral property and the 2nd respondent is having right by birth and is having undivided half share. Even though the 1st respondent is the ‘Kartha’ in the absence of any family necessities he cannot convey the entire property without the consent and concurrence of the 2nd respondent. In this case admittedly, the 2nd respondent was a major at the time of execution of Ex.A1 and he has not signed in the said document. The 1st respondent was having only undivided half share and therefore he can convey only his undivided half share under Ex.A1 though he purported to have agreed to convey the entire property. Under Section 12 (3) of the Specific Relief Act, where a party to a contract is unable to perform the whole of his part, and the part which must be left unperformed bears only a small proportion to the whole and admitting of compensation in money, the Court may at the suit of either party direct the specific performance of so much of the contract as can be performed and award compensation in money for the deficiency. Under Section 12(3) of the Specific Relief Act, the Court may at the suit of the other party, direct the party in default to perform specifically so much of his part of the contract as he can perform, if the other party in a case falling under clause (a) of Section 12(3)(a) pays or has paid the agreed consideration for the whole of the contract reduced by the consideration for the part which must be left unperformed. In this case, the part that can be performed by the 1st respondent is only in respect of his half share and Mr. V. Raghavachari, the learned counsel for the appellant submitted that the appellant is prepared to purchase half share by paying the reduced price. Section 12 (2) and (3) was interpreted by the Hon’ble Supreme Court in the Judgements reported in 2000 (10) SCC 636 (A. Abdul Rashid Khan (Dead) and others v. P.A.K.A.Shahul Hamid and others), 1999 (7) SCC 703 (Manzoor Ahmed Magray v. Ghulam Hassan Aram and others) and held that where any property is held jointly and once any party to the contract has agreed to sell such joint property, the agreement, then, even if the other co-sharer has not joined, at least to the extent of his share, the party to the contract is bound to execute the sale deed. The same principle was reiterated in Kammana Sambamurthy v. Kalipatnapu Atchutamma (2011 (1) MLJ 404 SC).
13. Further, in the Judgement reported in 1993 (1) Law Weekly 599 (P.Alagesan & 5 others v. A. Mariadas and 6 others), this Court has held that the ‘Kartha’ cannot convey the entire property when other co-parceners are there and when they have not given consent for the same. Therefore, the appellant is entitled to get specific performance of undivided half share of the 1st respondent in the suit property and he cannot claim the entire property. Hence, the substantial questions of law Nos. 1 to 3 are answered in favour of the appellant and the substantial question of law No.4 is answered against the appellant holding that 1st respondent/ 1st defendant can sell his half share in the property and the agreement of sale will not bind the 2nd defendant.
14. Hence, the Second Appeal is partly allowed and the appellant is entitled to get a decree in respect of undivided half share which belongs to the 1st respondent by paying 50% of the agreed consideration. No costs.
08.02.2011
Index: Yes/No.
Internet: Yes/No.
kr.
R.S.RAMANATHAN,J.
kr.
To
1. The Additional District Munsif,
Additional District Munsif Court,
Tirupattur.
2. The Subordinate Judge,
Subordinate Court,
Tirupattur.
S.A.No. 1150 of 1997
08.02.2011