IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 01.03.2011 CORAM: THE HONOURABLE MS.JUSTICE R.MALA Appeal Suit (First Appeal) No.232 of 2007 M.Karuppusamy .. Appellant/First defendant Vs. 1. S.Karunaiyammal 2. N.Latha 3. S.Ramesh Kumar .. Respondents 1 to 3/plaintiffs 4. S.K.Palanisamy 5. S.K.Lakshmanan 6. B.Rudhramurthy 7. A.C.Kandasamy .. Respondents 4 to 7/Defendants 2 to 5 (Notice to Respondents 4 to 7 given up) Appeal Suit filed under section 96 of CPC (First Appeal) against the judgment and decree dated 10.8.2006 in O.S.No.74 of 2003 on the file of the Additional District Court/Fast Track Court No.1, Erode. For appellant : Mr.N.Manokaran For respondents 1 to 3: Mr.V.P.Sengottuvel\ Respondents 4 to 7 – Given up. JUDGMENT Appeal Suit (First Appeal) is preferred against the judgment and decree dated 10.8.2006 in O.S.No.74 of 2003 on the file of the Additional District Court/Fast Track Court No.1, Erode. 2. The averments in the plaint are as follows: (a) The first defendant and his four brothers are the owners owning ancestral properties as well as the properties jointly purchased by them. There had been no partition among them so far as these properties are concerned. Therefore, the first defendant is entitled to own 1/5 share in all the suit properties mainly comprising house-sites, vacant-sites and building. (b) The first defendant has got only son, by name K.K.Viswanathan and they are living together as a member of the joint Hindu family. The first defendant being the Kartha-Manager of the said family, was managing the business in the name and style of Narmada Fabrics. His son Viswanathan was a member of a political party. https://hcservices.ecourts.gov.in/hcservices/ (c) The first defendant sustained considerable loss in the textile business. He had been purchasing yarn on credit from various parties. So, he was owing much debts to several parties. He was under the pressure to repay the debts. Therefore, on 10.6.2002, the first defendant entered into a written agreement of sale with the first plaintiff, agreeing to sell the suit properties for Rs.7 lakhs and received Rs.6 lakhs in the presence of the attestor. Eight months' period had been specified for completing the sale transaction. The said period terminated on 10.2.2003. There was a default clause in the agreement deed, according to which, the first plaintiff should pay the first defendant the balance Rs.1 lakh on or before 10.2.2003 and obtain a registered sale deed at his cost, in default of which, he will forfeit the advance amount paid by him. If the first defendant commits default, the first plaintiff is entitled to seek necessary remedy through the Court of law. (d) The first plaintiff has always been ready and willing to perform his part of the contract. He approached the first defendant several times. The first defendant had been successfully evading to do so with some mala-fide intention offering some lame excuses. Therefore, the plaintiff issued registered notice on 9.1.2003. The first plaintiff received a reply from the first defendant, dated 20.1.2003. He disputed that he has not executed the sale agreement and received the amount. (e) The first plaintiff reliably came to know that the first defendant has alienated portion of the suit schedule properties in favour of the defendants 2 to 5 with the mala-fide intention. So, the sale deed in favour of the defendants 2 to 5 will neither be valid nor binding upon the first plaintiff and so, they were impleaded as parties to the suit. Therefore, the plaintiff was constrained to file the suit for specific performance. During the pendency of the suit, the first plaintiff died and his legal heirs were impleaded as plaintiffs 2 to 4. Hence, the plaintiffs prayed for a decree of specific performance. 3. The gist and essence of the written statement filed by the first defendant are as follows: (a) The first defendant has got four brothers. He is having only son, by name Viswanathan. As early as in September 1999, there was division in status between the first defendant and his son. The first defendant's son is doing separate business and they are living separately, enjoying the properties separately, though there is no permanent partition. The first defendant has been doing business in the name and style of Narmada Fabrics, started in 1999. (b) The first defendant did not incur any loss. The first defendant has been paying for the materials purchased on credit then and there. The first defendant has not entered into written agreement of sale on 10.6.2002. The sale agreement is not true and genuine and valid. Neither the first defendant executed any such agreement, nor did he receive Rs.6 lakhs as advance on the date of the impugned sale https://hcservices.ecourts.gov.in/hcservices/ agreement. So, it is equally untrue to say that the first plaintiff was ready and willing to perform their part of the contract, tendering Rs.1 lakh and demanding the first defendant to execute the sale deed as agreed upon. (c) There is no valid sale agreement between the first plaintiff and the first defendant and no consideration had been passed. The first plaintiff and one K.C.Palanisamy are running Yarn Stores as partners at Chennimalai, under the name and style of Vaishnavi Yarn Stores. (d) The first defendant used to purchase the yarn on credit. It is customary in the trade to get the signature and the thumb impression in empty Promissory Notes and unfilled papers and stamp papers so as to ensure prompt repayment and in line with the said custom, the first defendant was told to sign the unfilled Promissory Notes, blank papers and stamp papers. (e) There was a dispute between the first defendant and his brother in partitioning the family properties. His younger brother Duraisamy has enmity with the first defendant. The said Duraisamy and the first plaintiff and his partner K.C.Palanisamy, are close friends and business associates. The first defendant had got reason to believe that the above said empty papers might have been used to fabricate the impugned sale agreement in collusion with the henchmen of the first plaintiff. The partner of the first plaintiff Mr.K.C.Palanisamy fabricated another sale agreement and filed yet another suit in O.S.No.221 of 2002 before the Principal Subordinate Judge's Court, Erode and the same is pending. (f) The first defendant has issued a reply, in which he has stated that the sale agreement is not true and genuine. Even he called for the copy of the sale agreement, but he has not received the same. The first plaintiff has never been ready and willing to perform his part of the contract. The value of the real estate and building in and around Chennimalai has fallen considerably. The claim of 12% interest is totally unsustainable. Hence, the first defendant prayed for dismissal of the suit. 4. The sum and substance of the written statement filed the fifth defendant, adopted by defendants 2 to 4, are as follows: (a) The fifth defendant's name is A.S.Kandasmy and A.C.Kandasamy. Both the first defendant and his son Viswanathan are living separately and are having independent money and business transaction. The first defendant has started a business in his own name. Viswanathan is holding important post in AIADMK political party and party-member is J.Jayalalitha Peravai of the District. (b) The first defendant has incurred debt, but it was only manageable and not so severe as alleged by the first plaintiff. The suit properties are joint properties of the first defendant and his son Viswanathan and his minor children. The first plaintiff would have entered into sale agreement of the properties with the first defendant alone. The guideline value of the lands in the suit locality is about Rs.10 lakhs per acre. (c) It is unbelievable and highly improbable that the first https://hcservices.ecourts.gov.in/hcservices/ plaintiff and the first defendant would have entered into sale agreement in respect of the entire suit land for Rs.7 lakhs. The first defendant's son Viswanathan and his minor sons are entitled to half share in the joint family properties. (d) The sale agreement dated 10.2.2002 is fabricated one. These defendants are the bona-fide purchasers of an extent of 42-1/2 cents for a valuable consideration without notice. These defendants and the first defendant are not colluding. On the other hand, the first plaintiff and the first defendant are colluding under the garb of ante-dated agreement, with a view to defeat the valuable interest of the defendants 2 to 5 and harass them. No such sale agreement was subsisting on the date of sale in favour of the defendants 2 to 5. (e) These defendants made due and diligent enquiries before the sale and they are the bona-fide purchasers. Viswanathan and his minor children are necessary parties to the suit. The plaintiff(s) are not entitled to any relief since the suit sale agreement is a fabricated document. Hence, these defendants prayed for dismissal of the suit. 5. The trial Court, after considering the averments both in the plaint and in the written statement, and considering the arguments advanced by both sides framed four issues for consideration and after considering the oral evidence of PW.1, P.W.2 and D.Ws.1 to 3, and the documentary evidence of Exs.A-1 to A-3 and Exs.B-1 to B-9, granted the alternative relief of refund of Rs.6 lakhs with interest @ 6% per annum from the date of the plaint till the date of recovery. The trial Court granted six months' time for payment. Challenging the said judgment and decree of the trial Court in respect of refund of the amount, the first defendant has preferred this First Appeal. 6. After hearing the arguments of both counsel, this Court frames the following points for determination in the First Appeal: (i) Whether Ex.A-1 sale agreement is a true and genine document ? (ii) Even if the Court comes to the conclusion that Ex.A-1 is a true and genuine as per the default clause, whether the respondents 1 to 3/plaintiffs are entitled to refund of advance amount ? (iii) Whether the trial Court's judgment and decree are sustainable ? and (iv) To what relief the appellant/first defendant is entitled to ? 7. Learned counsel appearing for the appellant/first defendant submitted the deceased first plaintiff earlier filed the suit for specific performance. The appellant/first defendant disputed the genuineness of Ex.A-1. The respondents 4 to 7/defendants 2 to 5 are the purchasers of the properties. He further submitted that the trial Court, after considering the evidence, both oral and documentary, came to the conclusion that Ex.A-1 is a true and genuine document and since the properties are joint family properties, the appellant/first https://hcservices.ecourts.gov.in/hcservices/ defendant and his sons are entitled to share in the properties. So, instead of granting the decree of specific performance, the trial Court granted the alternative relief of refund of the advance amount with interest @ 6% per annum from the date of plaint till the date of realisation. 8. Learned counsel appearing for the appellant/first defendant further submitted that the trial Court ought to have rejected the evidence of P.W.2 Kittusamy, who was the attestor to Ex.A-1 sale agreement, who is inimical towards the appellant/first defendant. Only on the basis of the evidence of P.W.2, the trial Court decided that Ex.A-1 is a true and genuine document, which is against law. Learned counsel appearing for the appellant/first defendant further submitted that the trial Court has not properly considered the invocation of Section 73 of the Indian Evidence Act and not compared the signatures. The trial Court is not competent to compare the Left Thumb Impression, since it is irregular and smudgy. To substantiate the same, learned counsel for the appellant/first defendant relied upon various decisions and prayed for dismissing the suit, and allowing the First Appeal . 9. Per contra, learned counsel appearing for the respondents 1 to 3/plaintiffs 2 to 4 submitted that the signatures in Exs.B-1 and A-1, were compared invoking Section 73 of the Indian Evidence Act and Section 73 of the Indian Evidence Act empowered the Court to compare the signatures. He further submitted that the trial Court considered the same in proper perspective and came to the correct conclusion. The evidence of P.W.2 who is the attestor to Ex.A-1, is corroborating with the evidence of P.W.1. He further stated that in the written statement itself, the appellant/first defendant himself has averred that in what circumstances, Ex.A-1 came into existence and since the signature is admitted, the argument advanced by learned counsel for the appellant/first defendant that invocation of Section 73 of the Indian Evidence Act and comparing the signature without the aid and assistance of an expert, is fatal to the case of the appellant/first defendant, is unsustainable. Learned counsel appearing for the respondents 1 to 3/plaintiffs 2 to 5 further submitted that the trial Court has considered all the aspects in proper circumspection and came to the correct conclusion and granted the alternative relief of refund of the advance amount and the same does not warrant any interference by this Court and he therefore prayed for dismissal of the First Appeal. 10. Points (i) and (ii) : Considering the rival submissions made by either side, admittedly, the suit properties are 1/5 share in the ancestral properties of the appellant/first defendant. The first defendant is having his son Viswanathan and a daughter. So, as per the Hindu Law, both are entitled to share in the properties. Now, the first dispute is that the appellant/first defendant has been totally denying that https://hcservices.ecourts.gov.in/hcservices/ Ex.A-1 is not executed by him. The appellant/first defendant who was examined as D.W.3, in his evidence, stated that since he was suffering from poor eye sight, he was unable to ascertain as to whether Ex.A-1 contained his signatures and Left Thumb Impression. 11. It is well settled principle of law that the person who relied upon Ex.A-1 as a true and genuine document, must prove that Ex.A-1 sale agreement is a true and genuine document. To prove the same, P.W.2 Kittusamy was examined. At this juncture, it is appropriate to consider the argument advanced by both sides. As per the version of the appellant/first defendant, there was a litigation between the appellant/first defendant and P.W.2 Kittusamy. So, while perusing the evidence of P.W.2 himself, in his evidence, he fairly conceded that he preferred the complaint under Section 138 of the Negotiable Instruments Act against the appellant/first defendant. In his cross-examination, P.W.2 fairly conceded that the appellant/first defendant's brother Duraisamy is the "Sambandhi" of the said Kittusamy P.W.2. He also stated that he has preferred a complaint under Section 138 of the Negotiable Instruments Act. He also stated in his evidence that P.W.1, the son of the first plaintiff, is his relative. He denied the suggestion that there was enmity between both. In his cross-examination, P.W.2 stated as follows: @ //// vd;Duka rk;ge;jp Jiurhkpapd; mz;zd; jhd; 1k; gpujpthjp fUg;g [rhkp Mthh;. fhnrhiy jpUk;gp te;jJ rk;ge;jkhf 1k; gpujpthjpapd; nghpy; tHf;F jhf;fy; bra;J. jPh;g;g[ Vw;gl;L nky;KiwaPL jhf;fy; bra;ag;gl;Ls;sJ/ me;j tifapy; vdf;Fk; 1k; gpujpthjpf;Fk; ,ilna tpnuhjk; vd;why; rhpay;y/ 1k; thjp Rg;gpukzpaj;jpd; kfd; th/rh/1 vdJ cwtpdh; Mthh;/ ////@ 12. P.W.2 in his evidence also stated that he has filed two civil suits on the basis of the Promissory Notes in Erode Civil Court and he also stated that he filed a complaint under Section 138 of the Negotiable Instruments Act, against which, the appeal is pending. It has clearly proved that there was enmity between the appellant/first defendant and P.W.2. In such circumstances, P.W.2's evidence is not trustworthy and reliable. 13. Another testator of Ex.A-1 sale agreement is one Nagarajan, who was working under the deceased first plaintiff. The scribe is Venugopal. P.W.1 in his evidence has stated that the said Nagarajan was another witness. He is the Manager under him. He is not his family friend. In his cross-examination, P.W.1 has stated as follows: @ //// ehfuh$; vd;gth; Flk;g ez;gh; ,y;iy/ v';fsplk; nknd$uhf ntiy bra;fpwhh; //@ https://hcservices.ecourts.gov.in/hcservices/ 14. So, both the attestors are friends, employed under the deceased first plaintiff's family. Nagaraj was not examined before Court. A suggestion posed to P.W.1 that the scribe Venugopal was their scribe for many transactions, was denied by him. P.W.1 also denied the suggestion that Ex.A-1 was a forged document. In such circumstances, it is the duty of the respondents 1 to 3/plaintiffs 2 to 4 to prove that Ex.A-1 is a true and genuine document. It is strange to say that Ex.A-1 contained both the signatures and the Left Thumb Impression, which have been compared by the trial Court. 15. Learned counsel appearing for the appellant/first defendant mainly focussed that if really they have paid Rs.6 lakhs on the date of Ex.A-1, they might very well file the documents, day book, etc. and since they are the businessmen, they were having day book, ledger and income tax returns and they can very well file the same and prove that they have paid Rs.6 lakhs on the date of Ex.A-1, but they have not filed any document, which shows that the signatures and the Left Thumb Impression obtained from the appellant/first defendant while he was availing of the credit facility for purchasing the yarn from Vaishnavi Yarn Stores, in which, the deceased first plaintiff and one K.C.Palanisamy were partners, were utilised for fabricating Ex.A-1. 16. At this juncture, it is appropriate to consider the oral evidence of P.W.1. When he was in the witness box, a suggestion was posed to him that he himself admitted that on the date of Ex.A-1 sale agreement, he did his business and the amount of Rs.6 lakhs had been paid out of the account of the business and he further stated that the account had been submitted to Income Tax. In his cross- examination, it was stated as follows: @ //// th/rh/M/1 xg;ge;jk; vGjg;gl;l njjpapy; ehd; tpahghuk; ghh;j;Jf;bfhz;oUe;njd;/ ehd; tpahghuk; ghh;j;J te;J tut[ bryt [ fzf;Ffspy; th/rh/M/1 njjpapy; 1k; gpujpthfpf;F fpuaj; bjhifapy; Kd;gzkhf U:/6 yl;rk; bfhLj;j tpguk; fzf;Ffspy; bjhpa[k;/ me;j fzf;Ffis tUkhdthp Jiwapy; rkh;g;gpj;Js;nsd;/////@ 17. Even though P.W.1 has clearly sated that the amount had been paid, which has reflected in the accounts, and also in the accounts submitted to the Income Tax Department, no reason has been assigned by the deceased first plaintiff/plaintiffs 2 to 4 (respondents 1 to 3), as to why he has not filed the same before Court to substantiate his claim that he had paid Rs.6 lakhs on the date of Ex.A-1 sale agreement, and to prove the genuineness of Ex.A-1. Even when he was cross-examined on that point, he was not willing to produce the documents. So, it is well settled principle of law that if a person wantonly with-held the vital documents, adverse inference could be https://hcservices.ecourts.gov.in/hcservices/ drawn against him, as per Illustration (g) to Section 114 of the Indian Evidence Act. As already stated, the appellant/first defendant has raised a plea that he never executed the sale agreement and if at all it contains his signature and the Left Thumb Impression, it could have been fabricated on the signature and the Left Thumb Impression from him by Vaishnavi Yarn Stores, while he was availing the credit facility, in which the deceased first plaintiff and the respondents 1 to 3/plaintiffs 2 to 4's father/ P.W.1's father and K.C.Palanisamy were partners in the said Vaishnavi Yarn Stores. In such circumstances, the burden is heavily upon plaintiffs/P.W.1 to prove that Ex.A-1 is a true and genuine document. 18. As already stated, one of the attestors to Ex.A-1 is P.W.2 who alone was examined. From the cross-examination of P.W.2, it is clearly proved that there was enmity between P.W.2 and the appellant/first defendant due to litigation and the said litigation was pending. In such circumstances, no reliance can be placed on the evidence of P.W.2. 19. Another attestor to Ex.A-1, is Nagarajan, and even though he was not examined, he was the Manager under P.W.2. The Scribe Venugopal is the scribe of their family. In such circumstances, since there is no evidence that P.W.1 was present at the time of Ex.A-1 sale agreement, which was only in favour of the father of P.W.1. So, it is the bounden duty to produce the document which is available with him to prove that on the date of Ex.A-1, he paid Rs.6 lakhs to the appellant/first defendant. But he failed to discharge his burden by way of filing the day book, ledger, Income Tax returns, etc., to show that he paid Rs.6 lakhs on the date of Ex.A-1. So, I am of the view that the deceased first plaintiff/respondents 1 to 3/plaintiffs 2 to 4 have not proved that Ex.A-1 sale agreement is a true and genuine document and Rs.6 lakhs was paid as an advance amount. 20. Further, P.W.1 himself stated that he paid the amount by cash. He has also stated that on that date, he was having Rs.1 lakh. In his cross-examination, even though he has stated that he was ready to produce the document before Court, admittedly, he has not produced the same. In his cross-examination, he further stated that the appellant/first defendant was doing Yarn business with his father (deceased first plaintiff) and he also denied the suggestion that due to the business, there was misunderstanding between them. A suggestion was also posed to him that P.W.1, Kittusamy and Nagarajan have colluded together and fabricated the document Ex.A-1, which was denied by him. He also denied the suggestion that Ex.A-1 did not contain the signature and the Left Thumb Impression of the appellant/first defendant. In such circumstances, the plaintiffs ought to have sent the document Ex.A-1 for the opinion of the expert. https://hcservices.ecourts.gov.in/hcservices/ 21. Learned counsel appearing for the respondents 1 to 3/plaintiffs 2 to 4 submitted that Section 73 of the Indian Evidence Act has empowered the Court to compare the disputed signatures with the admitted ones. 22. Learned counsel appearing for the appellant/first defendant relied upon the decisions to substantiate that the trial Court ought to have compared the signatures and the Left Thumb Impression with the assistance of the experts and got an opinion from him. The decisions are: (a) AIR 2008 SC 1541 (Thiruvengada Pillai Vs. Navaneethammal and another): "15. While there is no doubt that Court can compare the disputed handwriting/signature/finger impression with the admitted handwriting/signature/finger impression, such comparison by Court without the assistance of any expert, has always been considered to be hazardous and risky. When it is said that there is no bar to a Court to compare the disputed finger impression with the admitted finger impression, it goes without saying that it can record an opinion or finding on such comparison, only after an analysis of the characteristics of the admitted finger impression and after verifying whether the same characteristics are found in the disputed finger impression. The comparison of the two thumb impressions cannot be casual or by a mere glance. Further, a finding in the judgment that there appeared to be no marked differences between the admitted thumb impression and disputed thumb impression, without anything more, cannot be accepted as a valid finding that the disputed signature is of the person who has put the admitted thumb impression. Where the Court finds that the disputed finger impression and admitted thumb impression are clear where the Court is in a position to identify the characteristics of finger prints, the Court may record a finding on comparison, even in the absence of an expert's opinion. But where the disputed thumb impression is smudgy, vague or very light, the Court should not hazard a guess by a casual perusal. The decision in Murali Lal (Murali Lal Vs. State of Madhya Pradesh—1980 (1) SCC 704), and Lalit Popli (Lalit Popli Vs. Canara Bank and others – 2003 (3) SCC 583), should not be construed as laying a proposition that the Court is bound to compare the disputed and admitted finger impressions and record a finding thereon, irrespective of the condition of the disputed finger impression. When there is a positive denial by the person who is said to have affixed his finger impression and where the finger impression in the disputed document is vague or smudgy or not clear, making