IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 03.12.2009 CORAM: THE HONOURABLE MR.JUSTICE M.JEYAPAUL Second Appeal No. 1651 of 1995 Chinnammal ..Appellant -vs- Chinnathambi ..Respondent Second appeal filed under Section 100 of Civil Procedure Code of Second appeal against the Judgment and Decree dated 09.03.1995 made in A.S.No.178 of 1994 on the file of the II Additional District Judge, Salem confirming the decree and Judgment dated 08.06.1994 made in O.S.No.5 of 1989 on the file of the Court of Sub Judge, Sankagiri. For Appellant : Ms.M.Srividya For Respondent : Mr.P.Jagadeesan J U D G M E N T The plaintiff is the appellant herein. 2. The suit is one for specific performance of the agreement of sale. 3. The plaintiff/appellant Chinnammal would contend in the plaint, that the defendant entered into a written sale agreement with the plaintiff on 29.09.1988 to sell the suit property at the rate of Rs.29,000/- per acre and received a sum of Rs.5000/- as advance from the plaintiff. The defendant agreed to receive the balance amount of Rs.24,000/- from the plaintiff on or before 15.12.1988 and execute the sale deed in the name of the plaintiff. It is contended that the defendant was not ready to perform his part of the contract inspite of the demand made by the plaintiff to execute the dale deed receiving the balance sale consideration. The plaintiff issued a notice through her counsel on 09.12.1988 calling upon the defendant to execute the sale deed, receiving the balance sale consideration. But the defendant did not give any reply to the said notice. Hence the suit for specific performance of the agreement of sale. 4. The defendant/respondent Chinnathambi has specifically denied that he having agreed to sell the suit property at the rate of Rs.29,000/- per acre received a sum of Rs.5000/- as advance. The suit https://hcservices.ecourts.gov.in/hcservices/ agreement was forged at the convenience of the henchman of the plaintiff. No sale agreement was executed by the defendant. The suit property which is a valuable property is worth more than Rs.50,000/- even in the year 1988. There was no necessity for the defendant to sell the suit property as he had sufficient means to maintain his family. The defendant sent a suitable reply to the notice issued by the plaintiff on 19.12.1988. There was a dispute with respect to a Well and the Pathway between the plaintiff's brothers and the defendant. A panchayat was convened in the month of September 1988 at Kottakavudanpatti Village. The panchayathars namely Rakkianna Goundar, Chetti, Arthanari Goundar and Ponnusami Goundar obtained the signature of the defendant on the blank stamped paper for the purpose of enforcing the panchayat decision. But the matter was not settled after the panchayat. The panchayatars returned the blank stamp papers signed by the defendant. The defendant suspects that the plaintiff would have obtained the blank stamped papers signed by the defendant from the panchayathars and would have created the sale agreement at the instigation of her brothers. The panchayathars replied to the demand made by the defendant that the blank signed papers were missing from the custody of Rakkianna Goundar. In order to wreak vengeance, the present suit has been laid. The defendant prays for dismissal of the suit. 5. On the side of the plaintiff, the agreement of sale in dispute dated 29.09.1988 was marked as Ex.A1. Pre-suit notice dated 09.12.1988 sent by the plaintiff through her counsel and the acknowledgment showing the receipt of the said notice by the defendant were marked as Exs.A2 and A3. The plaintiff also produced a sale deed Ex.A4 dated 12.02.1990 executed by Chittaiyan in her favour for a sum of Rs.84,375/- to show that the plaintiff had wherewithal to clinch the sale transaction with the plaintiff. On the side of the plaintiff, the plaintiff was examined as PW.1, the attestor to Ex.A1 was examined as PW.2 and the scribe to the said document was examined as PW.3. On the side of the defendant, the defendant was examined as DW.1 no other witness was examined on his side. The pleadings and counter pleadings in the case in O.S.No.37 of 1989 between the plaintiff's brothers and the defendant were marked as Exs.B1 to B3. 6. The Trial Court having adverted to the minor discrepancies found in the evidence of PW.1, PW.2 and PW.3 and completely relied upon the oral uncorroborated evidence of DW.1 returned a finding that Ex.A1 was not executed by the defendant in favour of the plaintiff. It has also found that no advance consideration was passed under Ex.A1. The first Appellate Court simply adverted to the very same minor discrepancies pointed out by the Trial Court and arrived at a very safe concurrent finding that Ex.A1 was not executed by the defendant in favour of the plaintiff and no advance sale consideration also was passed there under. https://hcservices.ecourts.gov.in/hcservices/ 7. At the time of admission of the second appeal the following substantial questions of law were formulated by this Court: 1.Whether the Courts below are correct in holding that Ex.A1 is not a genuine one, even though the respondent/defendant admits his signature in Ex.A1. 2.Whether the Courts below are correct in casting the burden of proof on the appellant/plaintiff to prove the genuineness of Ex.A1 after the respondent/defendant admits the signature in Ex.A1. 8. In addition to the aforesaid substantial questions of law the following additional substantial question of law is also formulated to resolve the real controversy arisen between the parties. Whether the Judgment of the Courts below are vitiated by improper appreciation of evidence on record and non-application of the correct principles of law. 9. The learned counsel appearing for the appellant/plaintiff would vehemently submit that PW.1 to PW.3 have cogently spoken to the execution of the agreement of sale Ex.A1 by the defendant in favour of the plaintiff having received sale advance of Rs.5000/-. It is her further submission that the minor contradictions found in the evidence of illiterate witnesses have been blown out of proportion by the Trial Court as well as the First Appellate Court. The defendant has virtually admitted his signature in Ex.A1 but no evidence was forth coming from the side of the defendant to establish that the blank signed stamp paper furnished by him to the panchayatars was misused by the plaintiff. Therefore, she would submit that the Judgment of the Trial Court as well as the First Appellate Court will have to be set aside. 10. The learned counsel appearing for the defendant/respondent would submit that the value of the stamp paper used for preparing agreement of sale, the amount of sale advance passed under Ex.A1, the ink pad or the ink pen used for putting the thumb impression by PW.1 and PW.2 were inconsistently spoken to by PW.1 and PW.3. Inasmuch as the land dispute between the plaintiff's brothers and defendant which culminated in a Civil suit was admitted by the defendant and his witnesses, the defence of the defendant that the plaintiff has concocted Ex.A1 to wreak vengeance as against him inview of the aforesaid animosity was accepted by the Trial Court as well as by the first Appellate Court. It is his submission that the evidence of PW.1 to PW.3 does not go to establish that Ex.A1 was in fact executed by https://hcservices.ecourts.gov.in/hcservices/ the defendant having received advance sale consideration thereunder. Therefore he would submit that there is no necessity to upset the Judgment of the Trial Court as well as the first Appellate Court. 11. The defendant in so many words has admitted that he subscribed his signature in a blank stamped paper. In evidence, he deposes that he subscribed his signature in a blank stamp paper worth Rs.2.50p and submitted the same to the panchayathars. Mere admission of the signature would not amount to execution of the document. Even if a party admits his signature in a document, the execution of the document will have to be established by the party who wants the Court to rely upon such a document. When the defendant has set up a plea that a blank signed stamp paper circulated by him was misused, the burden heavily rests upon the plaintiff to establish that in fact a document was executed by the defendant. Therefore, it is held that even after the signature found in Ex.A1 was admitted by the defendant the burden still lies on the plaintiff to establish that Ex.A1 was executed by the defendant. The substantial questions of law formulated originally at the time of the admission of the second appeal are answered accordingly. 12. To answer the additional substantial question of law formulated by this Court, the entire evidence on material will have to be thoroughly scanned by this Court. When there is a concurrent verdict returned by the Courts below, of course the Second Appellate Court would be reluctant to go into the evidence part of the case. But to find out whether a pervasive finding was recorded by the Courts below and whether the Judgment of the Court below was tainted by non appreciation of evidence on record and failure to follow the correct principles of law, the second appellate Court will have to necessarily go into the materials, oral and documentary produced before the Courts below. 13. The plaintiff Chinnammal was examined as PW.1. There is no dispute to the fact that the plaintiff is totally an unlettered woman. She had only put her thumb impression in the document Ex.A1 puported to have been executed by the defendant in her favour. Likewise one of the witnesses to Ex.A1 is also a person who is not worldly-wise. He has put his thumb impression in the document Ex.A2. Of course Ex.A2 was scribed by a professional scribe before he was elivated to the position of Village Administrative Officer. 14. PW.1 and PW.2 have categorically spoken to the fact that the defendant having agreed to sell the suit property owned by him for a sum of Rs.29,000/- received the sale advance of Rs.5000/- from the plaintiff and executed the sale agreement Ex.A2. PW.3 the scribe of Ex.A1 has also spoken during the course of chief examination that the defendant having agreed to sell the suit property to the plaintiff for a sum of Rs.29,000/- received a sum of Rs.5000/- as advance and executed the sale agreement Ex.A1. But quite https://hcservices.ecourts.gov.in/hcservices/ unfortunately during the course of cross-examination he has stated that he was not present when the deliberation as to the sale transaction was going between the plaintiff and the defendant and that he was not aware as to whether the sale advance of Rs.5000/- was paid by the plaintiff to the defendant. 15. The oral evidence of a witness should be read in its entirety. The cross-examination portion of the evidence alone cannot be dissected and focussed leaving in the lurch the chief examination portion of a witness. Though PW.3 has stated during the course of cross-examination that he was not present at the time when Rs.5000/- was paid by the plaintiff to the defendant towards sale advance, his evidence found in the chief examination goes to support the evidence of PW.1 and PW.2 that infact a sum of Rs.5000/- was paid as a sale advance on the date when Ex.A1 was clinched between the parties. 16. To say the least, the Trial Court as well as the first Appellate Court has blown out of proportion some minor discrepancy found in the evidence of PW.1, PW.2 and PW.3. While evaluating the oral evidence the Court is supposed to find whether there is any material contradiction with respect to the material particulars sought to be established by a party concerned. The issue involved in the case is whether the Ex.A1 was infact executed by the defendant in favour of the plaintiff and whether the sale advance of Rs.5000/- was paid by the plaintiff in favour of the defendant. On a careful analysis of the evidence of PW.1 to PW.3, it is found that there is no material contradiction with respect thereto. Quite unfortunately, the Trial Court as well as the first Appellate Court bestowed much importance to the flimsy inconsistencies found in the evidence of PW.1 and PW.3. 17. Let me now analyse the observations made by the Courts below with respect to the minor discrepancies blown out of proportion by them. 18. PW.1, an illiterate person would very fairly say that she was not aware of the four boundaries of the property proposed to be sold by the defendant in her favour. Just because an agreement holder was not aware of four boundaries of the property sought to be sold to her, the entire case cannot be thrown overboard. It is not necessary that the agreement holder must be aware of the four boundaries of the property proposed to be sold to her. Afterall the four boundaries have been given in the Ex.A1 wherein PW.1 has subscribed her thumb impression. 19. PW.1 would depose that the agreement was written on a Ten Rupee stamp paper. It is not her case that some other agreement was executed by the defendant on a Ten Rupee stamp paper in her favour. Producing Ex.A1 the illiterate woman would say that it was the agreement that was executed by the defendant in her favour. On a https://hcservices.ecourts.gov.in/hcservices/ perusal of Ex.A1 it is in fact found that it was executed on stamp papers worth Rs.2.50p. Very intelligently the defendant having come to know that Ex.A1 was executed on a stamp paper worth Rs.2.50p took up a defence in the written statement that the panchayathars obtained forcibly his signature on the stamp papers worth Rs.2.50p in order to force him to accept to the decision of the panchayathars. Such a Cock and Bull story of the defendant does not have any foundation worth referring to. When the disputed document is before the Court and the same has been written on stamp papers worth Rs.2.50p there is no reason to give much weightage to the unwitting deposition of PW.1 that it was written on Rs.10 stamp paper. 20. Ex.A1 was executed on 29.09.1988 and the time frame for clinching the sale deed was fixed on 15.12.1988. After the issue of the pre-suit notice Ex.A2 the plaintiff laid the suit on 20.12.1988. The parties went for Trial in the year 1994. After a lapse of about five long years, it appears that the parties to the document Ex.A1 have been called upon to depose as to the tenor of the document Ex.A1. PW.1 has of course stated when she was called upon to speak to Ex.A1 after a lapse of five long years that she alone her put her thumb impression using ink pad. PW.2 another unlettered man shown as a witness to Ex.A1 would depose that not only himself but also PW.1 put her thumb impression in Ex.A1 using ink pad. PW.3 the scribe on his part would depose that PW.1 and PW.2 put their thumb impression using the ink from a pen and that there was no ink pad available at the place where Ex.A1 was executed. 21. Firstly, sharp memory power cannot be from every one concerned. The lapse of about five long years from the date of execution to the date of deposition will have to be necessarily taken note by the Court. The fact that PW.1 and PW.2 are totally unlettered persons will also have to be considered by the Court. The issue is not as to whether ink pad was used or ink from the same pen was used for putting the thumb impression. The material issue is whether the parties to Ex.A1 were present along with the witnessess and executed the subject document Ex.A1. As already pointed out by this Court the witnesess PW.1 to PW.3 have categorically spoken to the execution of Ex.A1 by the defendant in favour of the plaintiff. The aforesaid discrepancies in their evidence are found to be very flimsy which cannot be taken serious note of to decide the core issues involved in the case. 22. PW.3 the scribe would state that he was not present when the deliberation as to the sale transaction was going on between the parities. He was also not aware of the sale consideration fixed by the parties. Scribe is not supposed to know all these things. He is bound to scribe as dictated by the parties concerned. Therefore, the adverse comment made by the Courts below with respect thereto, is found to be totally uncharitable. https://hcservices.ecourts.gov.in/hcservices/ 23. On a bare perusal of Ex.A1, at the time when it was shown to PW.3, PW.3 has stated that the last line found in page 1 of the Ex.A1 and the last line in page 2 of Ex.A1 were virtually written on the thumb impression already put by the parties. On a careful scanning of those documents it is difficult to arrive at a decision whether the thumb impressions of Chinnathambi found on page No.1 and Page No.2 of Ex.A1 were put earlier to the scribing of the documents, inasmuch as the thumb impressions of Chinnammal were found to be very pale. If such a pale thumb impression is put after scribbing the document, one cannot distinguish whether the thumb impression was put after it was scribed or it was put before ever the document was scribed. Further the last line found at Page No.2 accounts for a over writing found in the said page. In this context we will have to consider the evidence of PW.1 to PW.3 that the thumb impression was affixed by the plaintiff on Ex.A1 only after the same was written by PW.3. In the above facts and circumstances I hold that the Courts below have wrongly arrived at a decision that the document Ex.A1 appeared to have been prepared after the thumb impression was obtained from the plaintiff. 24. PW.2 would depose that the deliberation with respect to the sale transaction took place two days prior to the actual execution of Ex.A1. As stamp papers were not available the execution of the agreement of sale was postponed two days hence. It is pointed out that the stamp paper had been purchased in the name of one Renganathasamy as on 26.09.1988 itself. But Ex.A1 was executed on 29.09.1988. PW.2 recollects the deliberation which took place about five years prior to the date of his deposition. Further, just because the stamp paper had been purchased in the name of one Renganathan on 26.09.1988, one cannot jump to a decision that the said stamp paper was in fact made available on 26.09.1988 itself at the place where the deliberations as to the sale transaction went on. It is quite possible that the stamp paper which was purchased in the name of Renganathan on 26.09.1988 would have been made available on 26.09.1988 fascilitating execution of Ex.A1 by the parties. 25. It is true that PW.1 admits that there was some dispute between the plaintiff's brothers and the defendant. She infact disputed that there was a suit filed before the Court of District Munsif, Mettur. If at all the plaintiff was a party to such a suit, the suppression there of may be taken serious note of by the Court. When the plaintiff was not a party to the said suit it is quite possible that she would not have been aware of the suit. In fact the boundary dispute is between the plaintiff's brothers and the defendant. Suppression of material fact cannot be attributed to her as she was not a party to the suit proceedings marked before this Court as Exs.B1 to B3. Very strangely the Courts below chose to accept the case of the defendant that Ex.A1 was concocted as there was a dispute between the plaintiff's brothers and the defendant. https://hcservices.ecourts.gov.in/hcservices/ 26. The defendant was the only witness deposed on his side. Very categorically he has stated in the written statement that the panchayathars compelled him to sign in the blank stamp paper so as to clinch a compromise, but the same was misused by the plaintiff. In the face of voluminous materials to establish that the defendant in fact executed Ex.A1 agreeing to sell his property to the plaintiff, the defendant should have examined the panchayathars to disprove the case of the plaintiff that the unlettered plaintiff received the blank signed stamp papers from the panchayathars and fabricated Ex.A1. Such a story of the defendant is found to be a false story reeled out before the Court just for the purpose of defence. Quite unfortunately the said defence without any material on record was accepted by the Courts below. 27. If at all the dispute between the plaintiff's brothers and the defendant was not thrashed out in the aftermath of the signature obtained in blank paper by the panchayathars, the defendant would have definitely made serious attempt to retrieve such a blank signed stamp paper from the panchayathars. Except the ipse dixit of the defendant none of the panchayathars was examined to establish that in fact the defendant put his signature in a blank stamp paper and handed over to the panchayathars and the same fell to the hands of the defendant who misused the same. 28. Coming to the readiness and willingness of the plaintiff to perform her part of the contract, the Court finds that even before the expiry of time frame fixed under Ex.A1, the plaintiff issued a notice through her counsel on 09.12.1988 calling upon the defendant to perform his part of the contract. Within five days from the date of expiry of the time frame fixed under Ex.A1, she laid a suit before the competent Court seeking the prayer for specific performance of the agreement of sale. The plaintiff having produced Ex.A4 has established that she had wherewithal to purchase the property. Therefore it is held that the plaintiff was infact ready and willing to perform the part of the contract but it was only the defendant who evaded the call made by the plaintiff to perform the part of his contract. 29. The plaintiff has established that Ex.A1 was infact executed by the defendant in her favour agreeing to sell the suit property for a sum of Rs.29,000/- having received sale advance of Rs.5000/-. It is also found that she was ready and willing to perform her part of the contract. Therefore, it is found that the Courts below have returned a perverse finding without properly adverting to the evidence on record and also without applying the correct principles of law. 30. In view of the above the Judgments of the Court below are set aside. The plaintiff is entitled to a decree for specific performance of the agreement of sale. The plaintiff is directed to https://hcservices.ecourts.gov.in/hcservices/ deposit the balance consideration on or before 04.02.2010 and the defendant is directed to execute the sale deed on or before 18.02.2010 failing which the Court shall, on expiry of the time frame fixed above shall execute the sale deed in favour of the plaintiff after verifying the fact that the plaintiff has complied with the above direction. The suit is decreed infavour of the plaintiff and the appeal is allowed. There is no order as to costs. Sd/- Asst.Registrar /True Copy/ Sub.Asst.Registrar ps To 1.The II Additional District Judge, Salem. 2.The Sub Judge, Sankagiri. 3.The Section Officer, VR.Section, High Court, Madras. + 1 cc to M/s.V.Ambika,Advocate,SR.65950 S.A.No. 1651 of 1995 AKR(CO) EM/5.1.10 https://hcservices.ecourts.gov.in/hcservices/