BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 22/04/2008 CORAM THE HONOURABLE MR.JUSTICE G.RAJASURIA S.A.No.410 of 2001 Sukumaran ... Appellant/Appellant/Plaintiff Vs 1.Panneerselvam 2.Ayyasami ... Respondents/Respondents/Defendants Prayer Second Appeal filed under Section 100 of the Code of Civil Procedure, against the judgment and decree dated 21.06.2000 passed in A.S.No.15 of 2000 by the learned Principal District Judge, Thanjavur, in confirming the judgment and decree dated 08.12.1999 passed in O.S.No.118 of 1998 by the learned Sub Judge, Pattukkottai. !For Appellant ... Mr.V.K.Vijaya Raghavan ^For Respondents... No representation. :JUDGMENT
Animadverting upon the judgment and decree dated 21.06.2000 passed in
A.S.No.15 of 2000 by the learned Principal District Judge, Thanjavur, in
confirming the judgment and decree dated 08.12.1999 passed in O.S.No.118 of 1998
by the learned Sub Judge, Pattukkottai, this second appeal is focussed.
2. Heard the learned Counsel for the appellant. Despite printing the name
of the respondents, no one appeared. It is an old matter. Hence, the learned
Counsel for the appellant proceeded to argue the matter in entirety.
3. The parties, for convenience sake, are referred to according to their
litigative status before the trial Court.
4. Broadly but briefly, narratively but precisely, the case of the
plaintiff as stood exposited from the plaint could be portrayed thus:
Under Ex.A.1, the registered agreement to sell, the first defendant
undertook to sell six items of properties set out in the plaint in favour of the
plaintiff for a total sale consideration of Rs.60,000/-. Out of the same, a sum
of Rs.55,000/- was received by the first defendant from the plaintiff.
Subsequently, the first defendant failed to perform his part of the contract and
thereupon, Ex.A.2, the suit notice was issued by the plaintiff which was not
replied by the first defendant. Whereupon, the suit for specific performance
was filed by the plaintiff as against the first defendant, in addition to the
second defendant who was also added as one of the defendants on the ground that
after the emergence of Ex.A.1, the first defendant in collusion with the second
defendant effected a make-believe sale transaction in favour of the second
defendant relating to the fifth item of the suit properties. Even before the
emergence of Ex.A.1, the first defendant alienated the second item in favour of
a third party. However, the plaintiff restricts his prayer for specific
performance relating to the remaining five items of properties without praying
for proportionate reduction in the sale consideration as agreed under Ex.A.1.
5. Denying and disputing, challenging and impugning the
allegations/averments in the plaint, the first defendant filed the written
statement which was adopted by the second defendant, with the averments inter
alia thus:
Ex.A.1 is not a genuine document. The first defendant did not execute
Ex.A.1. The signature found in Ex.A.1 is not his signature. In fact, there was
a loan transaction between the first defendant and the plaintiff whereby the
plaintiff lent a sum of Rs.50,000/-. Subsequently, the first defendant repaid
to the tune of Rs.7,000/- in the form of paddy and thereafter, he repaid another
sum of Rs.12,000/- to the plaintiff, in partial discharge of the loan. On
receipt of Ex.A.2, the first defendant requested the plaintiff to grant time to
repay the remaining part of the loan for which the plaintiff agreed and granted
time also. Even thereafter, the first defendant could not honour his promise in
repaying the remaining part of the loan. Subsequently, the plaintiff misusing
the blank stamped papers which were signed by the first defendant at the time of
availing the loan, filed this suit concocting Ex.A.1. Accordingly, the
defendants prayed for the dismissal of the suit.
6. The trial Court framed the relevant issues.
7. During trial, the plaintiff examined himself as P.W.1 and Exs.A.1 to
A.4 were marked. The first defendant examined himself as D.W.1 and Exs.B.1 was
marked.
8. Ultimately, the trial Court dismissed the prayer for specific
performance. However, it decreed the suit to the effect that the first
defendant shall repay a sum of Rs.38,000/- to the plaintiff with interest, even
though the plaintiff has not made any prayer to that effect in the plaint.
9. Being aggrieved by and dissatisfied with, the judgment and decree of
the trial Court, the plaintiff filed A.S.No.15 of 2000 before the Principal
District Court, which dismissed the appeal.
10. Challenging the judgments and decrees of both the Courts below, the
plaintiff filed this second appeal on various grounds, the gist and kernel of
them, would run thus:
Both the Courts below fell into error in not appreciating Ex.A.1, the
registered agreement to sell in proper perspective. The burden of proof was on
the defendants to prove their plea, but they miserably failed to discharge their
burden. The Courts below have not taken into consideration the purport of
Section 92 of the Indian Evidence Act, which would clearly contemplate that oral
evidence is barred as against the registered document. The Courts below
approached the matter in a tangential manner and dismissed the claim of the
plaintiff.
11. At the time of admitting this second appeal, my learned Predecessor
framed the following substantial questions of law:
“(i) Whether the Courts below are correct in law in considering the oral
evidence contrary to the recitals in Ex.A.1 especially when the lower appellate
Court has found Ex.A.1 as a true document?
(ii) Whether the lower appellate Court in the face of the recitals in
Ex.A.1, was correct in coming to the conclusion that it is a loan transaction?”
12. Both the points are taken together for discussion as they are
interlinked and interwoven with each other.
Point Nos:(i) and (ii)
13. At the outset itself, I would like to observe that the judgment of the
trial Court is far from satisfactory for the following reasons:
The trial Court simply looked askance at Ex.A.1 as though it is an
unregistered document forgetting the presumption as contemplated under the
illustration (e) to Section 114 of the Indian Evidence Act and the relevant
portion is extracted hereunder for ready reference:
“Section 114. Court may presume existence of certain facts.- The Court may
presume the existence of any fact which it thinks likely to have happened,
regard being had to the common course of natural events, human conduct and
public and private business, in their relation to the facts of the particular
case.
…
The Court may presume –
(e) That judicial and official acts have been regularly performed;”
14. At this juncture, my mind is redolent with the decision of the
Honourable Apex Court in Pentakota Satyanarayanan and others v. Pentakota
Seetharatnam reported in 2006-2-L.W.658, which emerged relating to the
registered will. An excerpt from it, is extracted hereunder:
“24. It is clear from the definition that the attesting witness must state
that each of the two witnesses has seen the executor sign or affix his mark to
the instrument or has seen some other persons sign the instrument in the
presence and by the direction of the executant. The witness should further
state that each of the attesting witnesses signed the instrument in the presence
of the executant. These are the ingredients of attestation and they have to be
proved by the witnesses. The word ‘execution’ in Section 68 includes
attestation as required by law.
25. A perusal of Ex.B9(in original) would show that the signatures of the
Registering Officer and of the identifying witnesses affixed to the registration
endorsement were in our opinion, sufficient attestation within the meaning of
the Act. The endorsement by the sub-registrar that the executant has
acknowledged before him execution did also amount to attestation. In the
original document the executants signature was taken by the sub-registrar. The
signature and thumb impression of the identifying witnesses were also taken in
the document. After all this, the sub-registrar signed the deed. Unlike other
documents the Will speaks from the death of the testator and so, when it is
propounded or produced before a Court, the testator who has already departed the
world cannot say whether it is his Will or not and this aspect naturally
introduces an element of solemnity in the decision of the question as to whether
the document propounded is proved to be the last Will and the testament of
departed testator.”
15. It is a trite proposition of law that a will should be proved strictly
as per Section 68 of the Indian Evidence Act by examining the attesting
witnesses. Even in such cases, their Lordships of the Honourable Apex Court in
the cited decision held that once it is a registered will, the propounder of the
will is relieved of his liability to prove it to some extent in view of the
illustration (e) to Section 114 of the Indian Evidence Act. Whereas here, Ex.A.1
is only an agreement to sell which is a duly registered one.
16. Forgetting for the moment that at the back of the first sheet of
Ex.A.1, the thumb impression of the first defendant is found. If really, the
first defendant’s contention was true that the first defendant was impersonated
before the Registrar’s office, he could have taken steps to get Ex.A.1 sent to
the expert concerned to verify the thumb impression. It is common knowledge
that the defendant could have very easily proved that his purported thumb
impression was a fabricated one if at all, his plea was true and germane.
17. It cannot be visualised that the burden of proof was on the plaintiff
to send the document to the expert so as to prove that the thumb impression in
Ex.A.1 was that of the first defendant, Ex.A.1 is a registered document and over
and above that, P.W.2 one of the witnesses to Ex.A.1 was also examined who
clearly deposed that it was he who attested it, after witnessing D.1 signing
it. It is not readily known as to how the first defendant’s signatures in the
blank papers could have been converted into Ex.A.1, the registered document
without impersonation of the first defendant. There is no plea of impersonation
taken by the defendants. If really, there was any such impersonation, it is not
known as to why the first defendant on receipt of Ex.A.2, did not lodge any
complaint with the police.
18. Hence, it is obvious that the plea of the first defendant is totally
untenable and it is turned to be false also in view of the discussions supra.
The first appellate Court correctly appreciated the purport of Ex.A.1, but it
fell into error in some other aspects. Once the burden of proof got shifted
from the plaintiff’s side to the defendants’ side as it is well known that the
burden of proof is ambulatory, the first defendant should have discharged his
burden, but he failed to do so. Except the ipsi dixit of the first defendant,
there is nothing on record to demonstrate that Ex.A.1 is a concocted document.
19. The core question arises as to what are all the legal consequences and
validity attached to Ex.A.1, the registered agreement to sell. It is quite
obvious that Ex.A.1 is enforceable legally, but the first appellate Court after
arriving at the finding that Ex.A.1 was a genuine document, turned turtle by
looking askance at the very nature of the transaction, which was got embodied in
Ex.A.1 and that too by referring to some admissions of P.W.1 relating to earlier
transactions which was also one relating to an agreement to sell. No doubt, the
earlier agreement to sell was not produced before the Court by the plaintiff.
But, P.W.1 in his deposition would candidly admit that relating to the earlier
transaction, there was some delay in payment, subsequently, that amount was
discharged by the first defendant and that transaction was over.
20. Whereas the defendants would contend that the first defendant is yet
to pay a sum of Rs.38,000/- under that earlier transaction and because of that
alone, this suit emerged. If that be so, the defendants should have sent a
reply in response to Ex.A.2 but he did not do so. The pre-suit notice should be
responded properly, but in this case, for reasons best known to the first
defendant, there was no response. However, in order to gloss over his own
fault, he dished out a theory as though the plaintiff sought time to discharge
the loan. But, there is no evidence in that regard.
21. It is clear from the statement of the first and second defendants that
after the emergence of Ex.A.1, the first defendant sold the item 5 of the suit
property in favour of the second defendant who is admittedly his brother-in-law.
The plaintiff is right in contending that the said sale effected by the first
defendant in favour of the second defendant relating to the item 5, should be
ignored even though the sale relating to item 2 cannot be ignored which emerged
anterior to Ex.A.1.
22. Furthermore, the learned Counsel for the plaintiff would fairly submit
that the plaintiff is not seeking for reducing proportionately the sale price
concerning the second item of the suit property. The second defendant has not
chosen to figure himself as one of the witnesses. It is a trite proposition of
law that the second defendant, the alleged purchaser of the item 5 cannot plead
anything apart from the one that he was a bona fide purchaser for value without
notice. In this connection, the decision in Arunachala Thevar and others v.
Govindarajan Chettiar and others reported in 1977 (2) M.L.J 431 could fruitfully
be referred to, which would highlight as to who could be termed as bona fide
purchaser for value without notice of prior agreement to sell. An excerpt from
it, would run thus:
“7. Now we shall find out the legal position with reference to the burden
of proof that is expected from either of the parties. Section 19, clauses (a)
and (b) of the Specific Relief Act, 1963, reads as follows:-
“Except as otherwise provided by this Chapter, specific performance of a
contract may be enforced against-
(a) either party thereto; (b) any other person claiming under him by a
title arising subsequently to the contract, except a transferee for value who
has paid his money in good faith and without notice of the original contract
……..”
These clauses of Section 19 of the New Act corresponded to clauses (a) and (b)
of Section 27 of the old Specific Relief Act. On a plain reading of the above
clauses, it appears that clause (a) only lays down the general principle that it
is only a party to the contract who can be sued. In other words, this clause
recognises and follows the general rule that a stranger to the contract is not a
proper or necessary party to a suit to enforce it; but clause (b) provides
exceptions to the general rule, according to which a subsequent purchaser, in
order to successfully resist a suit for specific performance of a prior
agreement for sale, must establish that he is a purchaser for value without
notice of the general agreement of sale and he paid the consideration money for
the sale before he had notice of the prior agreement. Clause (b) of Section 19
requires four elements to be proved to successfully claim the benefit of the
exception, viz.,
1. that the transfer is for value;
2. that the consideration has been paid;
3. that the subsequent transferee has taken the transfer in good faith;
and
4. that both the purchase and the payment of the consideration had been
made without notice of the prior contract. The first two elements are positive
and the rest are negative in character. Clause (b) lays stress upon the payment
of money by the transferee in good faith and without notice of the original
contract, and does not go further. It contemplates a transferee who has got a
document executed, who had paid the money in good faith and without notice and
who gets the document registered in accordance with law, giving retrospective
effect to the transaction from the date of execution. Thus, where a buyer paid
full money before the date of the execution of the deed in good faith and before
the receipt of the notice of the contract of sale from a buyer, he is a
transferee in law from the date of execution of the conveyance within the
meaning of Section 19 (b) of the Act and the transferee is protected.”
24. Curiously enough the second defendant has not chosen to prove his plea
and speak about it by entering into the witness box. Simply because both the
Courts below had some suspicion based on the evidence of P.W.2 that P.W.1 was a
money-lender, there is no presumption that Ex.A.1 should be considered only as a
security document for a loan transaction.
25. Merely based on subjective satisfaction and suspicion, a judgment
should not be rendered, but it should be based on sound principles of law and
legally admissible evidence.
26. My discussion supra would highlight as to how oblivious of the
provisions of the Indian Evidence Act, the Courts below simply based on some
subjective satisfaction, dismissed the plaintiff’s suit.
27. Hence, I am of the considered opinion that, the judgments and decrees
of both the Courts below are perverse and accordingly, they are liable to be set
aside and the suit has to be decreed for specific performance relating to the
items 1, 3, 4, 5, and 6 except item 2. The remaining part of the sale
consideration, if not already deposited, shall be deposited within a period of
two months from the date of receipt of a copy of this order.
28. The substantial question of law No.(i) is decided to the effect that
Courts below were not correct in law in considering oral evidence contrary to
the recitals in Ex.A.1 especially when the lower appellate Court has found
Ex.A.1 as a true document.
29. The substantial question of law No.(ii) is decided to the effect that
the lower appellate Court in the face of the recitals in Ex.A.1, was not correct
in coming to the conclusion that it is a loan transaction.
30. In the result, the second appeal is allowed, setting aside the
judgments and decrees of both the Courts below and the original suit is decreed
for specific performance relating to all the items of the suit property except
item 2. The parties shall bear their costs throughout.
rsb
To
1.The Principal District Judge, Thanjavur.
2.The Sub Judge, Pattukkottai.