Posted On by &filed under High Court, Madras High Court.


Madras High Court
Tmt. Nallammal vs Dhanshkodi on 8 August, 2000
Equivalent citations: 2000 (4) CTC 513
Bench: K Sampath


ORDER

1. The plaintiff in O.S.No.200 of 1986 on the file of the District Munsif’s Court, Melur, is the appellant in the second appeal. She filed the suit

for specific performance of an agreement for sale between herself and the respondent. Her case was as follows:

On 25.4.1983 the respondent executed a sale agreement in respect of the suit property in her favour agreeing to sell the property of Rs.6,000 received Rs.5,000 as advance on the date of agreement and further agreed to execute the sale deed in respect of the suit property within a period of three years after receiving the balance amount of Rs.1,000 from her. It was further agreed that if the respondent failed to execute the sale deed after receiving the balance amount within the stipulated period, he should surrender possession of the property to her. He also further agreed to give half share of the produce from the suit properly till he executed the sale deed in her favour. Inspite of the repeated demands made by her, the respondent did not receive the balance of Rs.1,000 from her and execute to the sale deed. She had always been ready and willing to pay the balance of sale consideration and get the sale deed executed in her favour at her cost. Mediators are also sent with a requisition to receive the balance sale price and execute the sale deed. As the respondent was not willing, on 21.4.1986 she caused a notice to be issued to the respondent calling upon him to receive the balance amount and execute the sale deed. He did not agree. She was willing to deposit the balance amount of Rs.1,000 into court and the suit for specific performance came to be filed.

3. The defence set up by the respondent was a follows:

The averments in the plaint were all false. No agreement was entered into between him and the appellant. He did not receive any amount, much less Rs 5,000 from the appellant. The sale agreement was created and forged one and not supported by consideration. It had been created by the father of the appellant by name Veeman Ambalam in the name of the appellant in connivance with his henchmen, the attestators of the sale agreement being none other than the father and the son of the appellant. Even if it was assumed that the sale agreement was a true document it was not valid tinder law as it was an unilateral document. There was ample motive for the said Veeman Ambalam to come up with such an agreement. No suit notice was received by the respondent from the appellant. The suit property had been all along in his possession and enjoyment.

4. On the basis of the above pleadings, the learned District Munsif, Melur, framed the necessary issues and on other oral and documentary evidence found that the sale, agreement was a true one . That respondent received Rs.5,000 in cash from the appellant, that he was liable to execute a sale deed in favour of the appellant. So holding, the learned District Munsif by judgment and decree dated 30.6.1987 decreed the suit. The respondent filed appeal A.S.No.172 of 1987 before the learned Subordinate Judge, Madurai, who different from the finding of the trial court and by judgment and decree dated 26.8.1988 allowed the appeal, setting aside the decree of the trial court and dismissed the suit. Aggrieved, the present second appeal has been filed.

5. At the time of admission, the following substantial questions of law were framed fro decision in the second appeal:

1. Whether in the absence of expert evidence on the side of the defendant regarding the genuineness of his signatures in Exs.A.2 and A.3, the lower appellate court is correct in law in holding that the defendant has not signed them by merely comparing the signatures in Exs.A.2 and A.3 with the Vakalat signed by him, especially when Exs.A.2 and A.3 have been proved by the evidence of P.Ws. 1 and 2? And

2. Whether the lower appellate court has committed material error in not shifting the burden on the defendant in proving that Ex.A.2 does not contain his signatures and holding that Ex.a.2 is no true on irrelevant and
inconsequential matters?.

6. Mr. Mahendran, learned counsel for the appellant, vehemently submitted that the lower appellate court clearly erred in holding that the respondent has not executed the sale agreement merely on the ground that the stamp papers had been purchased about three months prior to agreement for sale and that the agreement was a forged document absolutely without basis. The learned counsel further submitted that her agreement had been proved by the evidence of P.Ws.l and 2 and it was wholly unnecessary to examine any other witness to prove the agreement. The learned counsel, further, submitted that the initial burden of proving the agreement was discharged by the appellant and the burden shifted to the respondent to disprove it by examining the handwriting expert and other witnesses and this burden the respondent had not discharged. According to the learned counsel, the respondent had gone to the extent of denying his signature in the postal acknowledgment and the lower appellate Court had failed to note that the respondent had signed differently in the acknowledgment and in the Vakalat to create the impression that he had not signed in Exs.A.2 and A.3.

7. Per contra, Mr. S. Balasubramanian, learned counsel for the respondent contended that the agreement was disputed by the respondent and his specific case was that it was a created one and in such circumstances the onus was in entirely on the appellant to satisfy the Court that the disputed agreement contained the signature of the respondent. The learned counsel, further, submitted that the lower appellate court, as the final Court of fact, had come to the conclusion that the agreement was a forged document and sitting in second appeal this Court should not interfere. In this connection, the decision of the Supreme Court in Taherakhatoon v. Salambin Mohammed, was relied on:

8. The trial Court made a serious mistake in putting the onus on the respondent to disprove the case of the appellant. This mistake committed by the trial court was rectified by the lower appellate Court when it found that the onus was on the appellant to prove the due execution of the agreement and the same had not been discharged by the appellant. The lower appellate Court indeed compared the signature contained in the disputed agreement with the

admitted signature in the vakalat and held that the suit document had been forged. The appellant had examined only her father as a witness to speak to the execution of the document. When the respondent had set up a specific case of prior misunderstanding between him and the appellant’s father, it was incumbent on the appellant to have proved the due execution of the agreement by examining the scribe and the attestor. It was elicited during the examination of the appellant’s father, as P.W.2, that both the scribe and the attestor were available and the appellant chose not to examine them and she had to suffer the consequences.

9. As pointed out by the lower appellate Court when a major portion of the sale consideration namely Rs.5,000 out of Rs.6,000, according to the appellant, had been paid on the very day of the agreement, it was indeed very strange for having a three year period for paying the balance of Rs. 1,000 and completing the transaction. This aspect of the matter caste very serious doubts on the case of the appellant. The Appellate Court has also adverted to the discrepancies between the oral evidence of the appellant as P.W.I and her father as P.W.2. According to the appellant, she had only Rs.5,000 on the date of the agreement, but her father as P.W.2 deposed that he had other moneys on that day and he had infact stated that he himself had paid Rs.5,000 on behalf of the appellant to the respondent. He could have paid easily the balance of Rs. 1,000 and got the sale deed completed on the very same day. The appellate Court was perfectly justified in comparing the signature in the agreement and the acknowledgment on the one hand with the admitted signature in the vakalat on the other and finding that they differed very widely. One other point adverted to by the lower appellate Court is that the stamp papers for the agreement had been procured three months prior to the actual date the agreement bore. There was no satisfactory explanation given for this.

10. The lower appellate Court, as the final Court of fact, has come to a proper conclusion with regard to the non- genuineness of the agreement. Ex.A.2. As has been pointed out in the Supreme Court decision Taherakhatoon v. Salambin Mohammed, that as long as there was some material for the rejection of the document, the Second Appellate Court ought not to interfere with the above said finding of fact reached by the lower Appellate Court.

11. Consequently, both the substantial questions of law are answered against the appellant and the second appeal is dismissed. No costs.


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