IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 14.03.2011 CORAM THE HONOURABLE MS. JUSTICE R. MALA Appeal Suit No.493 of 2008 M.Kantha .. Appellant/Defendant Vs P.Valmurthy .. Respondent/Plaintiff Prayer: This Appeal Suit (First Appeal) preferred under Section 96 of C.P.C., against the judgment and decree dated 21.08.2007 made in O.S.No.7 of 2007 on the file of the Principal District Court , Tiruvallur. For Appellant :Mr.S.Thiruvenkatasamy for Mr.D.Veerasekaran For Respondent :Mr.J.Alexander JUDGMENT This Appeal Suit (First Appeal) arises out of the judgment and decree dated 21.08.2007 passed in O.S.No.7 of 2007 on the file of the Principal District Court , Tiruvallur. 2.The averments made in the plaint are as follows: (i) The defendant is the absolute owner of the suit property. The defendant entered into a sale agreement with the plaintiff dated 07.11.2003 for a sum of Rs.14,85,000/- and received a sum of Rs.3,00,000/- as an advance on the same day. As per the agreement, the plaintiff has to pay the balance sale consideration within three months from the date of the agreement. The sale deed can be executed either in the name of the plaintiff or in the name of his nominee. The plaintiff is always ready and willing to perform his part of contract. (ii)The plaintiff has met the defendant several times and informed that he is having the balance sale consideration. The plaintiff is a man of means in Mannurpet Village. On 05.02.2004, the plaintiff issued a notice to the defendant, informed that he is ready to pay the balance sale consideration and called upon the defendant to execute the sale deed. After the receipt of notice, the https://hcservices.ecourts.gov.in/hcservices/ defendant is trying to alienate the suit property to the third party. Hence the plaintiff is constrained to file the suit for specific performance and also for injunction from alienating or encumbering the suit property. 3. The gist and essence of the written statement filed by the defendant are as follows:- (i) The defendant is the absolute owner of the suit property. The defendant has not entered into a sale agreement with the plaintiff on 07.11.2003 and she also denied the receipt of Rs.3,00,000/- as an advance on the same day. Hence the plaintiff is called upon to prove both the execution and payment of consideration. (ii) The defendant never had any intention to sell the suit property to any one, much less to the plaintiff. The plaintiff has taken all the unfair advantages of the defendant's plight by inventing agreement dated 07.11.2003, sending notice dated 05.02.2004 and filing the suit on 19.03.2004. Since the defendant's husband became a bed ridden over a period of one year, she was unable to bear the misgivings of the plaintiff, her husband passed away on 24.05.2004. (iii) The defendant was brought to her notice of the agreement dated 07.11.2003 only in the notice dated 05.02.2004. The defendant has never given any room for the plaintiff to infer or presume that she has received a sum of Rs.3,00,000/- as an advance and entered into a sale agreement. Hence, she prayed for the dismissal of the suit. 4.The trial Court, after considering the averments both in the plaint and the written statement and arguments of both the counsel, framed three issues and considering the oral evidence of P.W.1 and P.W.2 and D.W.1 and documentary evidence of Exs.A1 to A9, decreed the suit, against which, the appellant/defendant has come forward with this First Appeal. 5.After hearing the arguments of both sides counsel, the following points for consideration are framed: 1.Whether the trial Court is correct in held that Ex.A1-sale agreement is true and genuine and enforceable? 2.Whether the judgment and decree passed by the trial Court are sustainable? 3.To what relief, the appellant/defendant is entitled to? 6.The learned counsel for the appellant/defendant submitted that the respondent as a plaintiff filed a suit for specific performance on the basis of the alleged sale agreement dated 07.11.2003 under Ex.A1. The appellant/defendant raised her defence that Ex.A1-sale agreement is not true and genuine document. The trial Court is erred in invoking Section 73 of Indian Evidence Act and compared the signature of the appellant/defendant with Ex.A1 and came to the conclusion that Ex.A1 is true and genuine document. He further https://hcservices.ecourts.gov.in/hcservices/ submitted that there was a delay in filing the suit. Since the respondent/plaintiff came to the Court with false case, he is not entitled to equitable relief of specific performance. But this factum was not considered by the trial Court. To substantiate the same, he relied upon various judgments of this Court as well as the Apex Court. Hence he prayed for allowing this appeal. 7.Refuting the same, the learned counsel for the respondent/plaintiff submitted that Ex.A1-sale agreement is true and genuine document. The three attestors of Ex.A1 are husband and daughter of the appellant/defendant and one Rangasamy, who was examined as P.W.2. While D.W.1-Kantha, the appellant/defendant in witness box before the Court, she accepted the receipt of advance amount of Rs.3,00,000/-. So the trial Court by considering the evidence of D.W.1, came to the conclusion that Ex.A1 is true and genuine document. He further submitted that D.W.1 herself admitted that the signature in Ex.A1 is belonging to her. So the decision relied upon by the learned counsel for the appellant/defendant in respect of Section 73 of Indian Evidence Act is no way applicable to the facts of the present case. Since the trial Court considered all the aspects in proper perspective and decreed the suit and there is no infirmity or illegality in the judgment and decree passed by the trial Court. Hence he prayed for the dismissal of the appeal. 8.Point No.1: (i) Considered the rival submissions made on both sides. (ii) The suit was filed on the basis of Ex.A1-the alleged sale agreement dated 07.11.2003. The sale price was fixed at Rs.14,85,000/- and an advance amount paid by the respondent/plaintiff was Rs.3,00,000/- and three months time was granted to complete the sale transaction. The respondent/plaintiff was issued a notice to the appellant/defendant on 05.02.2004 under Ex.A2 and a reply for the same was received on 09.02.2004 under Ex.A3. The respondent/plaintiff herein has filed the documents to show that the amount of Rs.3,00,000/- was received by the appellant/defendant and her husband and the same was deposited in Bank of Baroda, Ambattur Branch. The respondent/plaintiff's pass book in Indian Overseas Bank was marked as Ex.A4 and the challan for Rs.3,00,000/- was marked as Ex.A9. P.W.2, one Rangasamy, who is one of the attestor of Ex.A1, has deposed that the appellant/defendant has received the advance amount of Rs.3,00,000/- and he was also present, when the appellant/defendant were deposited the same in the Bank. (iii) Now this Court has to decide that whether Ex.A1-sale agreement is true and genuine document? It is pertinent to note that the averments in para-4 of the written statement, in which, the appellant/defendant stated that she has not executed the sale agreement and she has not received Rs.3,00,000/- as an advance. She further submitted that the document under Ex.A1 is only unilateral, so it is not executable. https://hcservices.ecourts.gov.in/hcservices/ (iv) At this juncture, it is appropriate to consider the evidence of P.W.1, P.W.2 and D.W.1. P.W.1, the respondent/plaintiff in his evidence, has stated that the appellant/defendant has received Rs.3,00,000/- and executed Ex.A1-sale agreement and her husband and her daughter Saraswathi are the attestors of the same. In his cross- examination, he has stated that at the time of execution of Ex.A1, one Kandasamy, one Vishnu, Madavapillai, the husband of the appellant/defendant and the appellant/defendant were present. He further stated that the husband of the appellant/defendant has produced a challan of Rs.3,00,000/- under Ex.A9, after depositing the said amount. The respondent/ plaintiff also denied the suggestion, which was posed to him that since the husband of the appellant/defendant was alcoholic and he has not mental equilibrium, the respondent/plaintiff cunningly obtained the document. (v)P.W.2, one Rangasamy was examined to prove that Ex.A1 is true and genuine, he has corroborated the evidence of P.W.1. In his chief-examination, he has stated that on 07.11.2003, the appellant/ defendant received the advance amount of Rs.3,00,000/- and executed Ex.A1-sale agreement for Rs.14,85,000/-. He further stated that the appellant/defendant's husband Madavapillai is the first attestor and the second attestor is her daughter Sarasawathi and he is the third attestor. After five days from the execution of sale agreement, the appellant/defendant and her husband deposited Rs.3,00,000/- in Bank of Baroda, Ambattur Branch. In his cross-examination, he fairly conceded that the respondent/plaintiff and his son were doing real estate business and he is having contact with them. (vi) At this juncture, it is appropriate to consider the evidence of D.W.1, the appellant/defendant. In her evidence, she has stated that she was signed the papers as per the direction of her husband. Whenever her husband asked her to sign the papers, she was signed the same. In her cross-examination, she has further stated that her daughter also signed the paper, whenever her father asked her. In para-4 of the affidavit, she has stated that she was not signed in Ex.A1 and she has not received Rs.3,00,000/- from the respondent/plaintiff. Further she has stated that when she was chatting with her daughter, at the request of her husband, she was signed the blank paper. In her cross-examination, she fairly conceded that her husband also did real estate business. Even her husband was working in Dunlop Company, he was doing real estate business as part time. Srinivasa Nagar, Maruthi Nagar, Srinivasa Nagar Extension lay outs were prepared and sold out by her husband. She further stated that her husband asked her to execute the sale deed, since he was received the advance amount. But she was refused to execute the sale deed and requested her husband to return the advance amount to the respondent/plaintiff. That advance amount was deposited in Bank of Baroda, Ambattur Branch. In her cross- examination, she has stated as follows: ".. .. vd; fzth; ehd; if ePl;o ml;thd;!; th';fptpl;nld; vd;Wk;. mjdhy; thjpf;F brhj;ij vGjpbfhLj;JtpL vd;Wk; brhd;dhh;/ ehd; kWj;J tpl;nld;/ mjdhy; https://hcservices.ecourts.gov.in/hcservices/ gzj;ij jpUg;gp bfhLj;Jtpl brhd;ndd;/ thjp bfhLj;j ml;thd;!; bjhif mk;gj;Jhh; ng';f; Mg; gnuhlhtpy; vd; fzthpd; mf;ft[z;oy; cs;sJ/ Mdhy; vd; fzthplk; cd;Dila mf;ft[z;oy; cs;s gzj;ij jpUg;gp bfhLj;JtpL vd;W brhd;ndd;/ vd; fzth; ,we;Jtpl;lhh;/ ehd; thhpR rhd;W bfhLj;J me;j gzj;ij th';ftpy;iy/ jhth brhj;ij Fj;jiff;F tpl ntz;o vd; fzth; vd;dplk; rk;kjk; bgw;wpUe;jhh;/ vd; kfs; ru!;tjp thyh$htpy; jpUkzk; bra;Jf;bfhz;L cs;shh;/ ehd; xg;ge;j njjpapy; vd; kfs; tPl;oy; thyh$htpy; ,Ue;njd;/ vd; fzth;. thjp. u';frhkp xU j!;jhnt$pia jahh; bra;Jf;bfhz;L mij thyh$htpy; te;J vd;dplk; ifbaGj;J nghlr;brhd;dhh;fs;/ ehd; Vw;fdnt Fj;jiff;F tpLtjhf ngrpajhy; ehd; ifbaGj;J nghl;L tpl;nld;/ me;j Mtzj;jpy; vd; kfSk; rhl;rp ifbaGj;J bra;Js;shh;/ gzj;ij ehd; ifapy; th';ftpy;iy/ ghh;f;ft[k; ,y;iy/ vf;.v?1y; cs;sJ vd; ifbaGj;J jhd;/ ehd; ifbaGj;J nghLk;nghJ btw;W jhshf ,Ue;jJ/ ,lJ gf;fk; cs;s rhl;rp ifbaGj;J mg;nghJ vd; kfsplk; bgw;wJ jhd;/ thjp jhth brhj;ij 14.85.000-?j;Jf;F th';Ftjhf xg;ge;jk; nghl;L mjd;gpd;g[ vf;/v/1?y; ehd; ifbaGj;J bra;njd; vd;why; mJ jtW/ 7/11/2003 md;W vf;/v/1 njjpapy; ehd; U:/3.00.000-?k; ml;thd;!; th';fpndd; vd;why; mJ rhpay;y/ // // //" The above oral evidence clearly proved that her husband was received Rs.3,00,000/- and the same was deposited in the account of her husband in Bank of Baroda, Ambattur Branch. So the evidence of D.W.1 has clearly proved that Ex.A1 is true and genuine document. In the earlier para, she has stated that her husband, the respondent/plaintiff and P.W.2/Rangasamy were prepared the document and obtained signature from her, when she was at Wallaja. She stated that she was signed only in blank paper. So considering the evidence of D.W.1, it has clearly proved that Ex.A1 is true and genuine document. The trial Court in paragraphs-13 and 14 of its judgment has clearly come to the conclusion that Ex.A1 is true and genuine document. (vii) At this juncture, it is appropriate to consider the decision relied upon by the learned counsel for the appellant/defendant reported in (2008) 4 Supreme Court Cases 530 (Thiruvengadam Pillai v. Navaneethammal and another), in para-16, it reads as follows: "16.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 https://hcservices.ecourts.gov.in/hcservices/ 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 and where the court is in a position to identify the characteristics of fingerprints, 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." But the evidence of D.W.1 has clearly proved that Ex.A1 was executed by her and the signature in Ex.A1 was also admitted by her. (viii) The learned counsel for the appellant/defendant submitted that in Ex.A1, intended purchaser has not signed the document and it is not a bilateral document, it is only unilateral document. So it is not enforceable by law. To substantiate his arguments, he relied upon the decisions reported in (a) 1998-3-L.W.189 (Lakshmi Ammal (died) and 6 others v. J.Victor and 3 others), in which, it reads as follows: "Held: Inasmuch as the other party to the agreement, namely, Narayanaswamy Pillai who has agreed to sell the suit property to the plaintiff for a price of Rs.37,000/- has signed, it is sufficient to enforce, the same by way of filing suit for specific performance. It is stated in "A Treatise on the Specific Performance of Contracts" by the Rt.Hon. Sir Edward Fry G.C.B., that "the statue requiring that the agreement, or the Memorandum or note thereof, shall be signed by the party to be charged therewith, or his agent, and not requiring that it shall be signed by both parties to the contract, it has been held, both in Courts of Equity and also in Common Law Courts, that a signature by the party against whom the contract is sought to be enforced is sufficient." The above observation of the learned Author squarely supports the contention of the respondents herein. In such circumstance, there is no infirmity in the present suit filed by the plaintiff on the basis of Ex.A-1." (b)1999(I)CTC 36 (Subbammal v. Masanamuthu Thevar and others), in para-39, it reads as follows: "39. In Lakshmi Ammal (died) and 6 others v. J. Victor, 1998(3) L.W. 189 P. Sathasivam, J. had occasion to consider an identical situation and held that the vendor who has agreed to sell the property to the https://hcservices.ecourts.gov.in/hcservices/ purchaser, the plaintiff in the suit, in the absence of any denial in the written statement by the said executant, it is sufficient if the executant who had agreed to sell the property for a price has signed it for being enforced by way of filing a suit for specific performance. The Learned Judge has granted a decree in respect of the agreement to sell signed by the vendor alone and held that it is not necessary that it should be signed by both the parties to the agreement. Mr.K.Sreenivasan is well found in relying upon this decision of P.Sathasivam, J." (c)AIR 2004 Madras 313 (R.Chinnadurai v. S.Rajalakshmi), in which, it reads as follows: "Where the alleged agreement of sale bore signature of the vendor only and in spit of denial of execution of the agreement by vendor, the purchaser examined only scribe and not the surviving attesting witness, the document is not a genuine document enforceable in law particularly when there are improbable and unbelievable circumstances i.e. grant of two years' period for making payment of remaining meagre balance of consideration without handing over possession to the intended purchaser." (d) (2009) 2 Supreme Court Cases 582 (Aloka Bose v. Parmatma Devi and Others), in paragraphs-16 and 17, it read as follows: "16. .. .. An agreement of sale comes into existence when the vendor agrees to sell and the purchaser agreed to purchase, for an agreed consideration on agreed terms. It can be oral. It can be by exchange of communications which may or may not be signed. It may be by a single document signed by both parties. It can also be by a document in two parts, each party signing one copy and then exchanging the signed copy as a consequence of which the purchaser has the copy signed by the vendor and a vendor has a copy signed by the purchaser. Or it can be by the vendor executing the document and delivering it to the purchaser who accepts it. 17. Section 10 of the Act provides that all agreements are contracts if they are made by the free consent by the parties competent to contract, for a lawful consideration and with a lawful object, and are not expressly declared to be void under the provisions of the Contract Act. The proviso to Section 10 of the Act makes it clear that the section will not apply to contracts which are required to be made in writing or in the presence of witnesses or any law relating to registration of documents. Our attention has not been drawn to any law applicable in Bihar at the relevant time, which requires an agreement of sale to be made in https://hcservices.ecourts.gov.in/hcservices/ writing or in the presence of witnesses or to be registered. Therefore, even an oral agreement to sell is valid. If so, a written agreement signed by one of the parties, if it evidences such an oral agreement will also be valid." (ix) As per the decision reported in 2009 (2) SCC 582, Ex.A1 was signed only by the appellant/defendant not by the intended purchaser, so it is enforceable. In that it was specifically stated that in India, an agreement of sale signed by vendor alone and delivered to purchaser, and accepted by purchaser, has always been considered to be a valid contract. In the event of breach by vendor, it can be specifically enforced by purchaser. There is, however, no practice of purchaser alone signing an agreement of sale. Therefore, the agreement of sale signed only by the vendor held valid and enforceable by the purchaser. So as per the said decision, I am of the view that Ex.A1 is valid under Section 10 of Specific Relief Act, it dealt with the cases in which specific performance of contract enforceable. Section 10 of Contract Act provides that all agreements are contracts if they are made by the free consent of parties competent to contract, for a lawful consideration and with a lawful object, and are not expressly declared to be void by the provision of Contract Act. Here, the appellant/defendant is a competent person to enter into a contract. While considering her evidence, she has stated that at the direction of her husband, she was signed the papers. In her cross-examination, she fairly conceded that Rs.3,00,000/- was received by her husband and the same was deposited in Bank of Baroda, Ambattur Branch, which is clearly proved that even though Ex.A1 is unilateral contract, as already stated above, in India, an agreement of sale signed by vendor alone and delivered to intended purchaser is enforceable in law. Since Ex.A1 was signed by the vendor (i.e.) the appellant/defendant herein, it is enforceable as per the decision reported in 2009 (2) SCC 582. So Ex.A1-sale agreement is enforceable in law. (x)Further, the learned counsel for the appellant/defendant relied upon the decision reported in AIR 1987 SC 1242 (Ram Sarup Gupta (dead) by L.Rs., v. Bishun Narain Inter College and others), in which, it was stated that it is not desirable to place undue emphasis on form, instead the substance of the pleadings should be considered. It is found that in spite of deficiency in the pleadings and proceeded to trial on those issues by producing evidence, in that event it would not be open to a party to raise the question of absence of pleadings in appeal. But here, admittedly the appellant/defendant has not specifically pleaded that in what circumstance, she executed and signed Ex.A1. On perusal of the written statement, it was clearly pleaded that she has not entered into a sale agreement. D.W.1/the appellant/defendant in her evidence, she has stated that her husband and her daughter are the attestors of Ex.A1. Her husband requested her to execute the sale deed, since he https://hcservices.ecourts.gov.in/hcservices/ has received the advance amount from the respondent/plaintiff and that advance amount was also deposited in Bank, which was marked as Ex.A9. Furthermore, her husband, who is one of the attestor, after filing of the suit, he died. But another attestor Saraswathi, who is the daughter of the appellant/defendant, was not examined before the Court. To prove at what circumstance Ex.A1 came into existence, she can very well examined her daughter Saraswathi. But D.W.1 has not chosen to examine her daughter Saraswathi, who is one of the attestor of Ex.A1 along with her father and P.W.2, it somehow withholding important and vital evidence. So an adverse inference can be drawn under Section 114(g) of Indian Evidence Act, "that evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it." Since the appellant/defendant is having the evidence (i.e.) her daughter, who is one of the attestor of Ex.A1, she was not examined before the Court. In such circumstances, an adverse inference can be drawn against the appellant/defendant. So the trial Court considered all the aspects in proper perspective and came to the conclusion that Ex.A1 is true and genuine document. As per Ex.A1, Rs.3,00,000/- was received by the appellant/defendant and that has been in the deposit of the appellant/defendant's husband account till now, which was evidenced by the oral evidence of D.W.1, the appellant/defendant. Hence I am of the view that Ex.A1 is true and genuine document, even it is unilateral document as per the decision reported in 2009 (2) SCC 582, it is enforceable in law. Point No.1 is answered accordingly. 9.Point Nos.2 and 3: (i)The learned counsel for the appellant/defendant submitted that since the respondent/plaintiff has not approached the Court with clean hands, he is not entitled to equitable relief of specific performance. To substantiate his arguments, he relied upon the decisions reported in (a) 1996 (5) SCC 589 (Lourdu Mari David and others v. Louis Chinnaya Arogiaswamy and others), in para-2, it reads as follows: "2. It is settled law that the party who seeks to avail of the equitable jurisdiction of a Court and specific performance being equitable relief, must come to the court with clean hands. In other words the party who makes false allegations does not come with clean hands and is not entitled to the equitable relief. .. .. " (b)2008 (2) CTC 382 (P.Sampoornam and others v. L.T.Somasundaram and others), in which, it reads as follows: ".. .. The relief of specific performance is a discretionary relief and the Courts have to exercise their discretion on sound and reasonable reasons. Even if a doubt arises whether it is probable or possible that an agreement of sale would have been executed at all, the discretionary relief shall not be granted. .. .." https://hcservices.ecourts.gov.in/hcservices/ By considering the above citations and the facts of the present case, this Court is of the considered view, Ex.A1 is true and genuine document and it is enforceable in law. As per Ex.A1-sale agreement, a sale price