IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:12.05.2010 CORAM: THE HONOURABLE Mr. JUSTICE M.VENUGOPAL A.S.No.696 of 2002 and C.M.P.No.754 of 2009 Girish Kumar H.Jain ... Appellant/ Plaintiff Vs. Mrs.Rani Mary ... Respondent/ Defendant Prayer: Appeal Suit filed against the decree and judgment dated 13.7.2001 made in O.S.No.252 of 1997 on the file of the learned II Additional City Civil Judge at Madras. For Appellant : Mr.Prakash Goklaney For Respondent : Mr.L.Rajasekar JUDGMENT The Appellant/Plaintiff has preferred this Appeal as against the Judgment dated 13.7.2001 passed by the learned II Additional Judge, City Civil Court, Chennai. 2.The Trial Court, while delivering Judgment in the Original Suit, had opined that the Appellant/Plaintiff is not entitled to claim the relief of specific performance or any other relief because of the fact that the Sale Agreement Ex.A.2 dated 10.7.1995 was held to be void and consequently, dismissed the Suit with costs. 3.The Trial Court has framed three issues for trial. On behalf of the Appellant/Plaintiff witnesses P.W.1 to P.W.4 were examined and Exs.A.1 to A.8 were marked. On the side of the Respondent/Defendant, D.W.1 was examined and Exs.B.1 to B.6 were marked. 4.Dissatisfied with the Judgment of the Trial Court in dismissing the suit, the Appellant/Plaintiff has preferred this Appeal before this Court. https://hcservices.ecourts.gov.in/hcservices/ 5.The Contentions, Discussions and Findings on Point Nos.1 to 3: The Learned Counsel for the Appellant/Plaintiff urges before this Court that the Trial Court should have decreed the Suit as prayed for because of the oral and documentary evidence available on record and in fact, the execution of the documents concerned was not denied by the Respondent/ Defendant and a party who alleges fraud will have to prove the same in the manner known to law. 6.Continuing further, it is the contention of the Appellant that the trial Court ignored the evidence of P.W.2 who spoke about the whole transaction and there was nothing to discredit the evidence of the witness in this regard. 7.Moreover, the illiteracy of the witness viz., the Respondent/Defendant could not be an excuse and that the Respondent/Defendant had never sought the return of original documents from the Appellant/Plaintiff at any point of time, which is certainly an unfavourable circumstance against the Respondent/Defendant. 8.Besides the above, the Trial Court had not adverted to the ingredients of Section 92 of the Indian Evidence Act which prohibits the parties to speak against the contents of the documents. 9.In effect, the learned counsel for the Appellant/ Plaintiff submits that the reasonings assigned by the Trial Court in dismissing the Suit with costs are not proper and legally valid and therefore, prays for allowing the Appeal in the interest of justice. 10.Per contra, the Learned Counsel for the Respondent/ Defendant supports the conclusion arrived at by the Trial Court in dismissing the Suit filed by the Appellant/ Plaintiff without costs and also submits that the Trial Court came to the conclusion that Ex.A.2-Sale Agreement dated 10.7.1995 was a void ab initio document and the Respondent/Defendant could ignore the same since it was a non-est in the eye of law and as such, this Court sitting in Appeal need not interfere with the Judgment of the Trial Court. 11.The points that arise for consideration in this Appeal are: 1.Whether the Respondent/Defendant has executed Ex.A.1-Mortgage Deed dated 17.5.1993 in favour of the Appellant/ Plaintiff's father? https://hcservices.ecourts.gov.in/hcservices/ 2.Whether the Appellant/Plaintiff and Respondent/Defendant had entered into a sale agreement on 10.7.1995? 3.Whether the Appellant/Plaintiff is entitled to the relief of mandatory injunction in directing the Respondent/ Defendant to execute the sale deed in respect of the schedule mentioned property in his favour on receipt of the balance sale consideration of Rs.1,50,000/- from him? 12.P.W.1-Appellant (Plaintiff) in his evidence has deposed that one Jayamurugan, Murugan, Ranimari (Defendant), Radhabai approached him for the purpose of loan and that the Respondent/Defendant in connection with her son’s mental medical treatment asked for a loan by showing her house documents and after receiving a sum of Rs.1,00,000/-, the Respondent/Defendant executed Ex.A.1-Registered Mortgage Deed dated 17.5.1993 and the Respondent/Defendant paid the interest for six months and thereafter, she had not paid any money towards Principal or interest. Further, on numerous occasions he demanded money from D.W.1 (Respondent/ Defendant), but she replied that after selling the house only she could pay the mortgage amount and for that he informed D.W.1 that he himself would purchase the property to which course D.W.1 had agreed to. 13.P.W.1 in his further evidence has added that D.W.1 (Respondent/Defendant) informed him that she would sell the property for a consideration of Rs.5,00,000/- and it was concluded between the parties that a sale agreement would have to be executed and the sale consideration was determined at Rs.5,00,000/- and an advance of Rs.3 ½ lakhs was to be paid initially and the balance amount would have to be paid on the day of registration of the document and accordingly a sale agreement was entered into and further in the advance of Rs.3 ½ lakhs to be paid, the mortgage amount of Rs.1,00,000/- was agreed to be deducted and since D.W.1 (Defendant) had no bank account (as informed by her) she asked him to pay an advance of Rs.2 ½ lakhs in cash which amount he paid on the date of sale agreement and the registered Sale Deed is Ex.A.2 dated 10.7.1995 and Ex.A.3 is the Deed of Power of Attorney dated 10.07.1995 executed by D.W.1 (Defendant) in favour of her father and the sale would have to be completed within three years from the date of Sale Agreement dated 10.7.1995. 14.The Appellant/Plaintiff had caused a Lawyer’s Notice Ex.A.4 dated 4.7.1996 to the Respondent/Defendant (D.W.1) since she had not executed the sale agreement as agreed to by her and https://hcservices.ecourts.gov.in/hcservices/ the Respondent/Defendant issued a reply Lawyer’s Notice-Ex.A.6 dated 18.7.1996 for which he had issued an another Lawyer’s Notice Ex.A.7 dated 7.8.1996 to the Defendant and Ex.A.8 is the reply Lawyer’s Notice of the Defendant to the Appellant’s counsel. 15.In his cross examination P.W.1 has deposed that at the time of registration of the document the persons mentioned in Exs.A.1 to A.3 documents were present and in Ex.A.3-Power of Attorney document in first page the Executor’s name has been struck off and after same being erased by the whitener [Eraz-ex Correction Fluid – Dilutor] and in that place of Respondent/Defendant’s front name no thumb impression was affixed and further that the Respondent was introduced to him by Murugan, Jayamurugan and one Radhabai. 16.Added further, P.W.1 in his cross examination (on 15.3.2000) has specifically mentioned that in Ex.A.2-Sale Agreement dated 10.7.1995 there was no mention of the mortgage loan of Rs.1,00,000/- and an advance of Rs.2 ½ lakhs totaling in all Rs.3 ½ lakhs and in Ex.A.1-Simple Mortgage Deed, an endorsement was made to the effect that a sum of Rs.1,00,000/- mortgage loan was repaid and in the said endorsement one Dilipkumar Jain and Hastimal Jain have affixed their signature. 17.To a suggestion that Ex.A.2-Agreement of Sale and Ex.A.3- Power of Attorney Deed dated 10.7.1995 have been obtained without the knowledge of Respondent/Defendant and by duping the Defendant, P.W.1 had denied the same. 18.P.W.2 in his evidence has stated that the Respondent/Defendant on 17.5.1993 had obtained a mortgage loan of Rs.1,00,000/- and the Respondent/Defendant after receiving Rs.1,00,000/- executed the mortgage deed and P.W.1 and D.W.1 had entered into a sale agreement for a sum of Rs.5,00,000/- and on the date of agreement a sum of Rs.2 ½ lakhs was paid, other than the mortgage loan of Rs.1,00,000/- and on that date the mortgage loan has been cancelled, for which an endorsement has been made and he has signed as a witness to that effect and on 10.7.1995 the Defendant (D.W.1) had executed the sale deed and delayed the matter. 19.P.W.3 in his evidence has stated that he is not personally aware as to whether rules have been followed at the time of registration of Agreement of Sale-Ex.A.2 dated 10.7.1995. 20.P.W.4 in his evidence has stated that he is practicing as a Lawyer for the past 18 years and Exs.A.1 to A.4 documents have been prepared by him and in Exs.A.1 to A.3 viz., the Simple Mortgage Deed, Agreement of Sale and the Deed of Power of https://hcservices.ecourts.gov.in/hcservices/ Attorney, there is no mention about the concerned portions of recitals have been read over to the Executant and only thereafter she has signed the same and in Ex.A.3 the name of the person who executed the General Power of Attorney and the person in whose favour it was executed, they have been typed and later it has been erased by the whitener and again it has been typed, for such corrections the person who executed the document and the person in whose favour it has been executed have not been signed or affixed their thumb impression. 21.D.W.1 (Respondent/Defendant) in her evidence has stated that the suit property belongs to her and that for medical treatment of her son, she asked for a loan of Rs.25,000/- from her husband's sister Radhabai in the year 1993 and further she asked her to get a loan by pledging her property for which Radhabai informed her that her son Murugan and another Murugan of medical shop will arrange for a loan and accordingly, Radhabai’s son Murugan took her to the Sub Registrar’s Office in Periamet and in that office they obtained her thumb impression and that she does not know to write and read and at that time her vision was not proper. 22.The further evidence of D.W.1 that when she cannot go out singly and she use to go out with a help of an Assistant and moreover, Radhabai and her brother are her relatives and that she has been taken to the Radhabai’s house from the Registrar’s Office where Radhabai and her son Murugan and medical shop Murugan gave Rs.25,000/- to her and she has given that said sum along with interest to Radhabai son Murugan and after settling the money she asked for a return of document for which they informed her that they will return the document and during 1995 the aforesaid three persons have taken her to Sub Registrar’s Office and through the Appellant/Plaintiff’s agent her thumb impression in numerous places in many papers have been obtained and Radhabai informed her that she will return the document through her son. 23.The evidence of D.W.1 is to the effect that it is not correct to state that she has mortgaged a suit property and obtained a loan of Rs.1,00,000/- and on 10.7.1995 she has not agreed to sell her property by means of writing an agreement in favour of the Appellant/Plaintiff and Ex.A.1 Mortgage Deed dated 17.5.1993 has not been executed by her and that she has not executed the sale agreement in favour of the Appellant/Plaintiff. 24.It is the case of the Appellant/Plaintiff that the Respondent/Defendant had approached his father-Harshimal Jain through one A.C.Sha and mortgaged the suit property for a sum of Rs.1,00,000/- and executed a Mortgage Deed-Ex.A.1 dated 17.5.1993 in favour of his father and one Dilipkumar, which was registered https://hcservices.ecourts.gov.in/hcservices/ as document No.791/93 at Periamet Sub Registrar’s Office, Madras- 3. 25.It is the further case of the Appellant/Plaintiff that the Respondent/Defendant in the year 1995 she wanted to sell the suit property to the Appellant/Plaintiff and he accepted the same. Further, the total sale consideration was fixed for Rs.5,00,000/- on 10.7.1995 and that the Respondent /Defendant discharged the mortgage deed on 13.5.1993. 26.The Respondent/Defendant had denied the case of the Appellant/Plaintiff that she mortgaged the property for a sum of Rs.1,00,000/-. According to the Respondent/ Defendant, she was in dire need of money to discharge all her debts and the loan obtained by her by the said mortgage was far from truth and also that she never agreed to sell her property bearing No.68, Egmore High Road, Egmore, Chennai 600 008 etc. 27.In her evidence, D.W.1 (Respondent/Defendant) had specifically stated that it was not correct to state that she had pledged the suit property and obtained a loan of Rs.1,00,000/-. It is significant for this Court to make a relevant mention that D.W.1 (Respondent/Defendant) in her evidence had categorically stated that she does not know to write and read and that during 1993 she asked for a loan of Rs.25,000/- from her husband's sister in connection with medical treatment of her son and she asked her to get the loan by pledging her house documents and that her husband's sister, Radhabai son Murugan took her to the Sub Registrar’s Office where they obtained her thumb impression and at that time her vision was not proper. 28.A perusal of Ex.A.1-Simple Mortgage Deed for Rs.1,00,000/- dated 17.5.1993 shows that the Respondent/ Defendant had affixed her Left Thumb Impression in the said document. It is to be noted that the recitals of Ex.A.1-Simple Mortgage Deed are in English. Even before the Trial Court the Respondent/ Defendant while tendering her evidence had affixed her Left Thumb Impression in the Deposition. When the Respondent/Defendant (D.W.1) had taken a specific stand that she does not know to write and read and moreso, when she affixed her LTI in Ex.A.1-Mortgage Deed dated 17.5.1993, the onus is on the Appellant/ Plaintiff to prove to the satisfaction of this Court that the Respondent/Defendant had understood the tenor of the recitals in English in Tamil and only after understanding of the same she had affixed her thumb impression. No satisfactory explanation was forth coming on the side of the Appellant/Plaintiff as to why the Appellant/Plaintiff's father was not examined as a witness before the Trial Court moreso, when the said Mortgage Deed was in favour of one Dilipkumar and his father. In short, when the Respondent/ https://hcservices.ecourts.gov.in/hcservices/ Defendant (D.W.1) was an illiterate and old person aged 65, then, in the instant case, on the basis of oral and documentary evidence on record and also on the basis of the evidence of P.W.1 to P.W.4 and D.W.1, this Court comes to an inevitable conclusion that the Appellant/Plaintiff had not proved to the subjective satisfaction of this Court in a coherent and convincing fashion that it was the Respondent/ Defendant had executed Ex.A.1-Mortgage Deed dated 17.5.1993 in favour of the Appellant/Plaintiff's father and the Point No.1 is answered against the Appellant/Plaintiff. 29.The Learned Counsel for the Appellant/Plaintiff submits that as per Section 114-E of the Indian Evidence Act, the presumption is that judicial and official acts have been regularly performed and since Ex.A.1-Mortgage Deed dated 17.5.1993, Ex.A.2- Agreement of Sale, Ex.A.3-Power of Attorney Deed dated 10.7.1995 are all registered documents. It cannot be said that any coercion or undue influence has been made upon the Respondent/Defendant to execute those documents and as such, the claim of the Respondent/ Defendant in this regard has to be negatived by this Court. 30.A perusal of Ex.A.1-Simple Mortgage Deed dated 17.5.1993 for Rs.1,00,000/- shows that the Respondent/ Defendant has been mentioned as the Mortgagor and the Mortgagee is mentioned as 1.DILIPKUMAR JAIN son of Rikhabdas, 2.HASTIMAL.D.JAIN son of Devichand as Mortgagees. In Ex.A.1-Simple Mortgage Deed dated 17.5.1993 for Rs.1,00,000/-, the Mortgagor's (Respondent/Defendant's) left hand thumb impression is seen. Ex.A.2-Agreement of Sale dated 10.7.1995 also speaks of the Respondent/Defendant as Vendor and the Appellant/Plaintiff as Purchaser. In this document, the Respondent/Defendant has affixed her LTI thumb impression. 31.That apart, a cursory perusal of the preamble portion of Ex.A.3-Deed of Power of Attorney dated 10.7.1995 candidly shows that the Respondent/Defendant's name Mrs.RANI MARY wife of R.M.Joseph Balakrishnan residing at No.68, Egmore High Road, Egmore, Madras-8, has been typed after applying the whitener/eraser [in the place of the earlier words that have been typed]. Also in the bottom of the first page of the aforesaid document, the name of the Respondent/ Defendant etc. has been typed after applying the eraser and before the words 'do hereby nominate constitute and appoint Thiru. HASTIMAL.D.JAIN son of Devichandji' Egmore High Road, Egmore, Madras-8 was typed by way of insertion/ interpolation. Also another page 2 of the Ex.A.3- Deed of Power of Attorney in clause 2 the words beginning with 'and administer my said property and conduct all affairs' are all typed out after applying the whitener [replacing the earlier letters typed]. Ex.A.5-Xerox copy of the Deed of revocation of a power of attorney executed by Respondent/Defendant dated 19.7.1996 https://hcservices.ecourts.gov.in/hcservices/ in and by which the Respondent/Defendant has revoked the Power of Attorney Deed executed by her on 10.7.1995 bearing document No.310 of 1995 on the file of Sub Registrar’s Office Periamet, Madras – 600 003. 32.The Learned Counsel for the Respondent/Defendant cites a decision of Honourable Supreme Court in Dularia Devi V. Janardan Singh and others AIR 1990 Supreme Court 1173 wherein it is held as follows: "Where an illiterate woman put her thumb impression on two deeds, honestly believing that the thumb impressions taken from her were in respect of a single document, namely the gift deed in favour of her daughter in respect of her properties as per her desire, but in fact two documents were got executed from her only one of which was gift deed but the other was a sale deed of her properties in favour of persons who perpetrated the fraud, the fraud/ misrepresentation practised on the woman was not limited to contents or legal effect of the documents but extended to fraudulent misrepresentation as to character of the document itself. The sale deed so executed was therefore totally void and not voidable. The suit to set aside the sale deed instituted at time when consolidation proceedings were pending was barred by S.49 of the U.P. Act." 33.As far as the present case is concerned, the Respondent/Defendant has specifically denied that she has entered into an Agreement of Sale-Ex.A.2 dated 10.7.1995 with the Appellant/Plaintiff. In the written statement, the Respondent/Defendant has stated that she does not know the Appellant/Plaintiff. It is also her stand that there is no consideration for the Sale Agreement-Ex.A.2 dated 10.7.1995 and in fact, she never intended to sell the property or to execute the agreement to sell the property. As such, the Sale of Agreement- Ex.A.2 dated 10.7.1995 is a void one. 34.It is not out of place for this Court to make a relevant mention that the Respondent/Defendant lodged a complaint against them before the Crime Branch and that Police has enquired them. However, the Respondent/ Defendant as D.W.1 in her evidence has stated that she lodged a complaint with the Police against Radhabai, Murugan, medical shop Murugan and also against the plaintiff's side and the criminal case is pending on the file of Additional Metropolitan Magistrate Court, Egmore. https://hcservices.ecourts.gov.in/hcservices/ 35.It is to be pointed out that 'Execution' and 'Attestation' are different acts, one following the other in law. However, 'Execution' includes attestation as required by law. The term 'Execution' necessarily takes within its fold execution and attestation. 36.It is well accepted principle in law that what is meant by 'Admission of Execution' is not only an admission of signature of the Executant but also the valid attestation of the signature by the witnesses concerned. It is quite obvious that the Executant is the main person in a document. Attestation is only ancillary to the execution by the main person. 37.Section 91 of the Indian Evidence Act proceeds on the principle that where an agreement has been reduced to writing, a Court of Law will insist on the production of this document as being the best proof of the agreement. However, if a particular amount shown in the document as a fictitious one and was never intended to be acted upon then oral evidence is permissible to that effect. In fact, Section 91 of the Indian Evidence Act only excludes oral evidence as to the terms of a written contract. As a matter of fact, oral evidence is admissible to show that a document executed by a person was never intended to operate as an agreement but was brought into existence solely for the purpose of creating evidence about some other matter as per decision Tyagaraja V. Vedanthanni AIR 1936 P.C. Page 70. 38.In regard to Section 92 of the Indian Evidence Act (Exclusion of Evidence of Oral Agreement) it is to be pointed out that the said Section pre-supposes the validity of a particular transaction evidenced by a document. However, if its validity is impeached, the Court is not bound by the 'paper expression' of the parties and may proceed to enquire into the real nature of transaction between the parties as per decision in Benimadhab V. Sadasook 2 CWN 306 FB. 39.Indeed, 'Extrinsic Evidence' is admissible to prove any matter which by subjective law affects the validity of a document or entitles a party to any relief in respect thereof notwithstanding, that such evidence tends to vary, had to or, in some cases, contract the writing, defective or conditional execution, contractual in capacity, fraud, forgery, duress, undue influence, illegality of subject matter, mistake or wind or failure of consideration [vide Phipson, 12 Ed; S. 1909]. 40.Besides the above, the recitals in a document in regard to the passing of consideration do not operate as an estoppel to prove the contrary as per decision Baldeo V. Dwarika AIR 1978 Pat. 97. Furthermore, failure of consideration can be proved by https://hcservices.ecourts.gov.in/hcservices/ extrinsic evidence only as between the parties for the purposes of invalid the document as per decision Ashfaq V. Nazir AIR 1990 Oudh page 420. 41.To put it differently, there is nothing in Section 92 of the Indian Evidence Act debarring a Mortgagor from saying that inspite of his admission having received the full amount he had not in fact received it. But, if the dispute is whether the exact amount mentioned in the Mortgage Deed was the amount agreed to be advanced or was more or less, then both parties would be estopped from going behind the recitals as per decision Taki Khan V. Jang Singh AIR 1935 All. 529. 42.Also inspite of the recitals in a sale deed regarding payment of consideration money, oral evidence to show non-payment is admissible as per decision P.C.Chanja V. ESI Corporation (1980) 1 CHN 117. 43.In Ex.A.2-Sale Agreement dated 10.7.1995, two witnesses 1.V.Murugan and 2.Ambalal are mentioned and as required under Section 68 of the Indian Evidence Act atleast one attesting witness and to have been examined to prove the execution of the document by the Respondent/ Defendant. Unfortunately, the Appellant/Plaintiff has not examined any one of the two witnesses mentioned in Ex.A.2-Agreement of Sale dated 10.7.1995 and no convincing and acceptable explanation has been projected on the side of the Appellant/Plaintiff in regard to the non-examination. Therefore, it is candidly clear that Ex.A.2-Sale Agreement dated 10.7.1995 has not been proved on the side of the Appellant/Plaintiff in the manner known to law. Also when it is the specific stand of the Respondent/Defendant that in her evidence as D.W.1 that she does not know to write and read then when the contents of Exs.A.2 and A.3 are in English language then in these documents there is no averment or mentioning that the contents of these documents in English have been read over to her in Tamil etc. Especially when the Respondent/Defendant (D.W.1) is an illiterate woman and has affixed her thumb impression only in the documents filed before the Trial Court then a heavy burden is caused on the Appellant/Plaintiff to prove that the Respondent/Defendant had affixed a thumb impression after knowing the contents of the document and the consequences arising thereto. 44.One cannot brush aside an important fact that the Appellant/Plaintiff (P.W.1) is running a Finance Company and a scrutiny of Ex.A.2-Agreement of Sale dated 10.7.1995 refers to the time limit of the three years for execution and registration of the sale deed etc. The position of the Appellant/Plaintiff as a man of means will also create an adverse circumstance against him to show as to why a three years period has been affixed for the completion of the sale in the considered opinion of this Court. https://hcservices.ecourts.gov.in/hcservices/ 45.On a careful consideration of the entire facts and circumstances of