IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated 08.02.2011 Coram: THE HONOURABLE MR. JUSTICE R.S.RAMANATHAN S.A. No. 1150 of 1997 Govindasamy Gounder ...Appellant/Plaintiff ..vs.. 1. Annamalai 2. Ramachandran ... Respondents/Defendants Second Appeal filed under Section 100 of Civil Procedure Co against the Judgement and Decree dated 23.9.1996 made in A.S.No.2 of 19 on the file of the Subordinate Judge's Court, Tirupattur by reversing t Judgement and Decree of the Additional District Munsif's Court, Tirupatt made in O.S.No.432 of 1983 dated 28.9.1994. For Appellant ... Mr. V. Raghavachari For Respondents ... Mr. D.Rajendran J U D G E M E N T The plaintiff in O.S.No.432 of 1983 on the file of the Addition District Munsif's Court, Tirupattur is the appellant. 2.The plaintiff filed the suit for specific performance of agreement of sale dated 5.3.1983 executed by the 1st defendant in h favour in respect of the suit property agreeing to sell the same f consideration of Rs.7,975/- and paid an advance of Rs. 250/-. per the agreement of sale, the balance of sale consideration has be paid on or before 5.6.1983 and the appellant is always ready pay the balance consideration and get the document registered a the defendants with a view to avoid the contract made the defendant who is the son of the 1st defendant to issue a noti stating that he has got half share in the property and t agreement of sale will not bind him. Hence, the suit was filed f specific performance. https://hcservices.ecourts.gov.in/hcservices/ 3. The 1st respondent/ 1st defendant contested the suit stating th he has not executed the agreement of sale as alleged by the appellan plaintiff and the signature found in the agreement of sale is not of t 1st defendant and it was a forged one and due to his illness he was n able to reply to the notice sent by the appellant/ plaintiff and the defendant is having half share in the suit property. 4. The 2nd defendant filed a separate statement stating that the defendant has no right to execute the agreement of sale in respect of t entire property and the property is an ancestral property and he has g undivided half share in the same and therefore it is not binding on him. 5. The trial Court held that the agreement of sale was a genuine o and the 1st defendant has got right to enter into an agreement of sale respect of the suit property and decreed the suit as prayed for. The respondent/ 1st defendant filed an appeal and the first appellate Cou reversed the finding of the trial Court and held that Ex.A1 the agreeme of sale is not a genuine one and therefore the appellant will not get a right under the same and allowed the appeal and dismissed the sui Hence, the Second Appeal is filed by the plaintiff. 6. At the time of admission of the Second Appeal, the followi substantial questions of law were framed by this Court: (1) Whether the first appellate Court was in error in reversing t Judgement and Decree of the learned trial Judge on the ground that Ex. has not been properly proved ? (2) Whether the lower appellate Court has failed to apprecia Ex.A3 issued by the 2nd defendant accepting the agreement but challengi the right of 1st defendant to deal with the share of 2nd defendant ? (3) Whether the 1st respondent who has admitted the execution Ex.A1 is estopped from denying the sale and the right of the plaintiff specifically enforce it ? (4) Whether the 1st defendant could not have entered into Ex.A1 sell the joint family property in his possession as 'Kartha' of the fami ? 7. Mr. V.Raghavachari the learned counsel for the appella submitted that the lower appellate Court erred in holding that t agreement of sale was not a genuine one and it was a forged one witho appreciating the evidence of DW1, the 1st respondent and the statement a notice sent by the 2nd defendant/ 2nd respondent. Mr. V.Raghavachari t learned counsel for the appellant further submitted that though in t written statement the 1st respondent had taken the plea that his signatu was forged and fabricated, he admitted the signature found in Ex.A1 https://hcservices.ecourts.gov.in/hcservices/ evidence and the 2nd defendant issued a notice wherein the agreement sale was admitted by him and the 2nd defendant admittedly was living wi the 1st defendant at the time of issuance of notice and therefore havi regard to the admission of the 1st respondent/ 1st defendant and t notice sent by the 2nd defendant marked as Ex.A3, the lower appella Court ought to have held that Ex.A1 the agreement of sale was a genui one, executed by the 1st respondent. He further submitted that the respondent being the 'Kartha' of the family is entitled to execute t agreement of sale on behalf of his son the 2nd defendant and therefore t 2nd defendant is also bound by the agreement of sale and he cann challenge it. 8. On the other hand, Mr. D.Rajendran, the learned counsel for t respondents submitted that a casual perusal of Ex.A1 would make it cle that it is only a forged document. According to him, Ex.A1 was writt in the stamp papers purchased on 10.4.1981 in the name of one Mani and the middle of the stamp papers a thumb impression is also found and explanation has been given by the plaintiff for using the stamp pape which were purchased two years earlier and purchased in the name of so other person and no explanation was given for the presence of thu impression in the stamp papers. He therefore submitted that Ex.A1 mu have been fabricated by the plaintiff and therefore the plaintiff cann claim any right under the said document. He further submitted that me admission of signature in a document will not amount to the execution a even though the 1st defendant has admitted in evidence admitting h signature found in Ex.A1 it will not amount to due execution unless it w proved that he signed the document after knowing the contents of t same. In support of his contention he relied upon the Judgement report in 2011 (1) MLJ 644 (Girish Kumar H.Jain v. Ms. Rani Mary). He furth submitted that admittedly the 2nd defendant has got undivided half sha in the suit property and therefore the appellant cannot claim the enti property. 9. Heard both sides. 10. In this case we will have to see whether Ex.A1 the agreement sale was validly executed by the 1st respondent/ 1st defendant. submitted by the learned counsel for the respondents that though t agreement of sale was written in the stamp papers purchased on 10.4.19 in the name of one Mani and it also contains thumb impressions, PW1 h stated in his evidence that the stamp papers were purchased two yea earlier and that was used in writing the agreement and he asked h cousin Mani to purchase the stamp papers and that was the reason, h cousin Mani's name was mentioned in the stamp papers. Further, question was put to PW1 about the thumb impression found in the sta papers. The appellant/ plaintiff also examined one of the attesti witnesses and he has also supported the case of the appellant with rega https://hcservices.ecourts.gov.in/hcservices/ to the execution. Further, in the year 1983 there was no prohibiti under the Stamp Act that the stamp papers purchased in the name of anoth cannot be used. Therefore, having regard to the fact that PW1 t appellant herein has explained the reason for using the stamp pape purchased two years earlier and no question was put to PW1 regarding t thumb impression and PW2 has supported the case of the appellant regardi the execution of Ex.A1 and the admission of 1st respondent about t signature in Ex.A1, would prove that Ex.A1 was executed by the respondent/ 1st defendant. 11. Though in the Judgement reported in 2011 (1) MLJ 644 (Giri Kumar H.Jain v. Ms. Rani Mary), this Court has held that mere affixi of thumb impression will not amount to the execution unless the eviden was let in to prove that the executant was aware of the contents of t document, having regard to the facts of the case, the above Judgeme cannot be relied. It is not the case of the 1st respondent that h signature was forged. As a matter of fact, though such plea was taken the written statement in evidence he admitted his signature. He did n say under what circumstances, his signature was obtained. Therefore, wh the executant admitted the signature and did not state any reason for h signature in the document it can be presumed in the absence of oth evidence that the executant signed the document after knowing t contents. Further, the 2nd respondent who is none other than the son the 1st respondent issued a notice prior to the filing of the su admitting the execution of agreement of sale by the 1st respondent favour of the appellant. Admittedly, both the respondents are livi together in the same house and therefore when the 2nd respondent issued notice stating that agreement of sale executed by the 1st respondent wi not bind him, he indirectly admitted the execution of the agreement sale . For all the above reasons, I hold that the first appellate Cou committed an error in holding that Ex.A1 was not properly proved and hold that Ex.A1 was executed by the 1st respondent/ 1st defendant. 12. The next question is whether the agreement of sale executed the 1st respondent binds the 2nd respondent and whether the 1st responde can convey the entire property in favour of the appellant as per Ex.A Admittedly, the property is the ancestral property and the 2nd responde is having right by birth and is having undivided half share. Even thou the 1st respondent is the 'Kartha' in the absence of any family necessiti he cannot convey the entire property without the consent and concurren of the 2nd respondent. In this case admittedly, the 2nd respondent was major at the time of execution of Ex.A1 and he has not signed in the sa document. The 1st respondent was having only undivided half share a therefore he can convey only his undivided half share under Ex.A1 thou he purported to have agreed to convey the entire property. Under Secti 12 (3) of the Specific Relief Act, where a party to a contract is unab https://hcservices.ecourts.gov.in/hcservices/ to perform the whole of his part, and the part which must be le unperformed bears only a small proportion to the whole and admitting compensation in money, the Court may at the suit of either party dire the specific performance of so much of the contract as can be perform and award compensation in money for the deficiency. Under Section (3) of the Specific Relief Act, the Court may at the suit of the oth party, direct the party in default to perform specifically so much of h part of the contract as he can perform, if the other party in a ca falling under clause (a) of Section 12(3)(a) pays or has paid the agre consideration for the whole of the contract reduced by the considerati for the part which must be left unperformed. In this case, the part th can be performed by the 1st respondent is only in respect of his half sha and Mr. V. Raghavachari, the learned counsel for the appellant submitt that the appellant is prepared to purchase half share by paying t reduced price. Section 12 (2) and (3) was interpreted by the Hon'b Supreme Court in the Judgements reported in 2000 (10) SCC 636 (A. Abd Rashid Khan (Dead) and others v. P.A.K.A.Shahul Hamid and others), 19 (7) SCC 703 (Manzoor Ahmed Magray v. Ghulam Hassan Aram and others) a held that where any property is held jointly and once any party to t contract has agreed to sell such joint property, the agreement, then, ev if the other co-sharer has not joined, at least to the extent of h share, the party to the contract is bound to execute the sale deed. T same principle was reiterated in Kammana Sambamurthy v. Kalipatna Atchutamma (2011 (1) MLJ 404 SC). 13. Further, in the Judgement reported in 1993 (1) Law Weekly 5 (P.Alagesan & 5 others v. A. Mariadas and 6 others), this Court has he that the 'Kartha' cannot convey the entire property when other c parceners are there and when they have not given consent for the sam Therefore, the appellant is entitled to get specific performance undivided half share of the 1st respondent in the suit property and cannot claim the entire property. Hence, the substantial questions of l Nos. 1 to 3 are answered in favour of the appellant and the substanti question of law No.4 is answered against the appellant holding that respondent/ 1st defendant can sell his half share in the property and t agreement of sale will not bind the 2nd defendant. 14. Hence, the Second Appeal is partly allowed and the appellant entitled to get a decree in respect of undivided half share which belon to the 1st respondent by paying 50% of the agreed consideration. No costs Sd/- Assistant Registrar. //True copy// Sub Assistant Registrar KR. https://hcservices.ecourts.gov.in/hcservices/ To 1. The Additional District Munsif, Tirupattur. 2. The Subordinate Judge, Tirupattur. 3. The Section Officer, V.R.Section, High Court, Madras. S.A.No. 1150 of 19 (C.O) VVI/18.5.2011 https://hcservices.ecourts.gov.in/hcservices/