IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 23.08.2010 CORAM : THE HONOURABLE Mrs.JUSTICE R.BANUMATHI and THE HONOURABLE Mr.JUSTICE G.M.AKBAR ALI A.S.No.260 of 2007 A.Kuppusamy ... Appellant/Defendant vs. S.Shankar Vadivel ... Respondent/Plaintiff Prayer: Appeals filed under Section 96 of Civil Procedure Code against the Judgment and decree made in O.S.No.25/2004 dated 14.10.2006 on the file of District Court, Tiruvannamalai. For Appellant : Mr.S.V.Jayaraman,Sr.Counsel for Mr.P.Mathivanan For Respondent : Mr.T.R.Rajagopalan,Sr.Counsel for Mr.T.R.Rajaraman and Mr.D.Ravichadnran JUDGMENT R.BANUMATHI,J This Appeal arises out of the Judgment and decree dated 14.10.2006 in O.S.No.25 of 2004 on the file of District Court, Tiruvannamalai decreeing Plaintiff's suit for Specific Performance and directing the Defendant to execute the sale deed in respect of the suit properties and also directing him to deliver vacant possession of 13 tiled shops. Unsuccessful Defendant is the Appellant. For convenience, the parties are referred as per their original rank in the suit. 2. Case of Plaintiff is that suit property relates to T.S.No.1600/1 measuring an extent of 5131 sq. ft.; T.S.No.1600/2 measuring an extent of 326 sq. ft. and T.S.No.1600 measuring an extent of 139 sq.ft. situated at 1st Ward, 23rd block at Car street, Tiruvannamalai town. The suit properties originally belonged to Plaintiff's father Subramania Mudaliar. Plaintiff's father Subramania Mudaliar borrowed a sum of Rs.18,600/- from the https://hcservices.ecourts.gov.in/hcservices/ Defendant's father Annamalai Mudaliar under promissory notes. Defendant's father Annamalai Mudaliar filed suit in O.S.No.54/1975 for recovery of money as against the father of Plaintiff and the same was decreed on 08.09.1975. Defendant's father filed Execution Proceedings in E.P.No.35/1976 to attach the suit property and brought the same to Court auction to realise the decree amount. After a long drawn battle of litigations and number of proceedings, Defendant purchased the suit property in the Court auction sale on 08.2.1978 for a sum of Rs.25,005/-. According to the Plaintiff, Defendant took only symbolic delivery of the suit property through the process of the Court in R.E.A.No.14/1985 on the file of Sub-Court, Tiruvannamalai. 3. Further case of Plaintiff is that Plaintiff executed lease deed [Ex.B11] in favour of Defendant on 23.09.1997 and agreed to pay a sum of Rs.1000/- per month as rent for the house. On the very same day 23.09.1997, Plaintiff has executed another lease deed [Ex.B12] in favour of Defendant and agreed to pay Rs.500/- per month for the shop. The other tenants who are occupying thirteen shops have separately executed lease deeds in favour of Defendant. In the month of February 2000, for the house and shop the aggregate monthly rent was enhanced to Rs.4000/- from Rs.1500/- per month. 4. Further case of Plaintiff is that Defendant agreed to sell the suit property for a sum of Rs.40,00,000/- to the Plaintiff. On 13.03.2002, Plaintiff and Defendant entered into an agreement of sale [Ex.A8] in respect of the suit property and thereby Defendant agreed to sell the suit property to the Plaintiff and received a sum of Rs.20,00,000/- as advance from the Plaintiff on 13.3.2002. As per the terms of Ex.A8-agreement of sale, Plaintiff should pay balance sale consideration of Rs.20,00,000/- to the Defendant on or before 12.09.2002 and on receiving the same, Defendant should execute the sale deed. Ex.A8-agreement was written by G.Ramananathan [PW2] as per the instructions of the Plaintiff. According to Plaintiff, he has always been ready and willing to pay the balance sale consideration of Rs.20,00,000/- and get the sale deed executed. Defendant filed Eviction Petition in H.R.C.O.P.No.12/2002 on the file of Rent Controller, Tiruvannamalai seeking eviction of Plaintiff in respect of Shop bearing Door No.1-C and the residential house respectively. Plaintiff entered appearance in the said eviction petition and taking number of adjournments for filing counter. For filing counter as last chance, the matter was adjourned to 30.03.2003. Plaintiff resisted the eviction petition contending that in view of the oral assurance given by the Defendant that Plaintiff need not pay rent from the date of sale agreement in respect of the suit property. Further case of Plaintiff is that Defendant stated that he would collect the rent from thirteen other tenants who are occupying thirteen shops till the Defendant executes the sale deed https://hcservices.ecourts.gov.in/hcservices/ relating to the suit property in favour of Plaintiff and thereafter, Plaintiff will be entitled to receive the rent from the said thirteen tenants. 5. Further case of Plaintiff is that he has paid another sum of Rs.10,00,000/- on 01.09.2002 as further advance to the Defendant and Defendant made an endorsement on the reverse of Ex.A8-agreement of sale. In the said endorsement, Defendant extended the time from 12.09.2002 till 11.04.2003 for performing the contract. Case of Plaintiff is that he is always ready and willing to perform his part of contract, but the Defendant refused to receive the balance sale consideration of Rs.10,00,000/- and to execute the sale deed in respect of the suit property in favour of Plaintiff. Plaintiff issued legal notice [Ex.A11] calling upon the Defendant to receive balance sale sale consideration of Rs.10,00,000/- from the Plaintiff and execute the sale deed in favour of Plaintiff in respect of the suit property. Defendant sent Ex.A13 reply [31.3.2003] seeking ten days time for issuing a detailed reply notice. Defendant sent Ex.A14-detailed reply [09.04.2003]. Thereafter, Plaintiff had filed the suit for Specific Performance. 6. Referring to the earlier suit O.S.No.54/1975 on the file of Sub-Court, Tiruvannamalai [Ex.B3] filed by the Defendant's father Annamalai Mudaliar against the Plaintiff's father Subramania Mudaliar for recovery of money and decreeing of the said suit on 08.09.1975 for Rs.28,632/- and various other proceedings in the Execution Petition Defendant has filed the written statement. In the Court auction, Defendant was a successful bidder for Rs.25,005/- besides three encumbrances of total principal amount of Rs.60,000/- with interest. Defendant has referred to number of applications filed by the Plaintiff's father in the Execution Petition and also number of other suits filed by Plaintiff's brother and junior paternal uncle G.Ramanathan as elaborated infra. 7. Case of Defendant is that on 23.09.1997, he took delivery of the suit property and delivery was recorded on 29.09.1997 wherein the Judgment Debtor and his brother Ramanathan, Krishnamurthy and sons of Judgment Debtor including the Plaintiff have attested the said delivery receipt. As per delivery receipt, Court Amin has delivered the suit property to Defendant. Under Exs.B11 and B12-lease agreements [23.09.1997], Plaintiff who is the son of Judgment Debtor entered into tenancy agreement with the Defendant agreeing to pay monthly rent of Rs.1000/- for house bearing Door No.1, Car street and taken on lease the shop bearing no.1-C, Kosamada street on a monthly rent of Rs.500/-. According to Defendant, rent of the house was enhanced to Rs.4000/- from Rs.1000/- per month from 01.08.2000 and rent of the shop was not enhanced. Since Plaintiff committed wilful default in payment of rent in respect of the shop, Defendant/Auction purchaser issued legal notice dated 16.09.2002 [Ex.B13] seeking eviction on the ground of wilful default in payment of rent. On the https://hcservices.ecourts.gov.in/hcservices/ very same day i.e. 16.09.2002, Defendant/Auction purchaser had issued Ex.B14 legal notice seeking eviction of the Plaintiff on the ground of wilful default in payment of rent and also on the ground of bonafide requirement of his son's own use and occupation. For which the Plaintiff has not issued any reply. Hence, Defendant filed eviction petitions in R.C.O.P.Nos.10 & 12/2002 [Exs.B15 & B16]. Plaintiff has taken many adjournments for filing counter in both the eviction petitions and the matter was adjourned to 30.03.2003 as last chance for filing counter. 8. According to Defendant, pre-suit notice received by the Defendant was suitably replied. Defendant stoutly denies having entered into any agreement of sale and the suit agreement is a forged one. Defendant has denied the execution of Ex.A8-sale agreement and the alleged endorsement and denied receipt of any advance. According to Defendant, Ex.A8-agreement of sale is a forged document and Plaintiff has no means to pay such huge amount and equally, the alleged payment of Rs.10,00,000/- on 01.09.2002 and Plaintiff has created a forged agreement with the help of his junior paternal uncle Ramanathan and his associates. The alleged scribe Ramanathan is none other than the brother of Subramania Mudaliar [Judgment Debtor as well as father of Plaintiff]. Defendant averred that plaintiff emboldened to fabricate the alleged agreement of sale and with a view to give a colour of reality the Plaintiff has created the endorsement dated 01.09.2002 with the help of same set of attestors. Defendant did not receive a sum of Rs.10,00,000/- from the Plaintiff and the alleged endorsement is also fabricated. According to Defendant, Defendant used to issue rental receipts for the house and shop to the Plaintiff who is the tenant under him. The Plaintiff has got number of such receipts containing the full signature of the Defendant and Plaintiff has forged the signature of the Defendant with the help of henchmen. According to Defendant, he has issued a detailed reply notice [Ex.A.13] on 16.09.2002 making it clear that the suit agreement is a forged document created by the Plaintiff. Defendant has also filed Memo in the trial Court to inspect the suit agreement [Ex.A8] and upon perusal of the document, Defendant learnt that suit agreement [Ex.A8] is a rank forgery and the signature in all the pages of the agreement and endorsement are forged signatures of the Defendant. Plaintiff has not come to the Court with clean hands and Plaintiff is not entitled to the equitable relief of Specific Performance. 9. On the above pleadings, trial Court framed four Issues. Before the trial Court, Plaintiff-Shankara Vadivel examined himself as P.W.1. Ramanathan, who is the scribe of Ex.A8 and junior paternal uncle of Plaintiff was examined as PW2. One Anbazhagan and Ravi, who are attestors to Ex.A8, were examined as PWs.3 and 4. Exs.A1 to A54 were marked. Defendant-Kuppuswamy examined himself as D.W.1. Kirubakaran, handwriting expert of Tamil Nadu Forensic Science Laboratory was examined as D.W.2. Exs.B1 to B23 were marked. https://hcservices.ecourts.gov.in/hcservices/ 10. Upon consideration of oral and documentary evidence, trial Court held that evidence of PW2-scribe is credible and acceptable and his evidence is substantiated by the evidence of Pws.3 and 4. Trial Court took the view that opinion of DW2-hand writing expert that the signatures in Ex.A8-agreement is the imitation of Defendant's signature does not stand on a higher footing when compared with the evidence of Pws.2 to 4. Rejecting the defence version, trial Court held that Defendant had not proved and established that Ex.A8 is a forged document. Holding that the signatures of the Defendant in Ex.A8 and the endorsement thereon are the signatures of Defendants, trial Court held that Defendant is bound to execute the sale deed, trial Court decreed the suit for Specific Performance directing the Plaintiff to deposit a sum of Rs.10,00,000/- (balance sale consideration) and granted decree for Specific Performance and also directed the Defendant to delivery vacant possession of 13 shops. Challenging the findings of the trial Court, unsuccessful Defendant has filed the Appeal. 11. Mr.S.V.Jayaraman, learned Senior counsel appearing for Appellant-Defendant interalia contended that the trial Court failed to take note of the conduct of Plaintiff preceding the suit and inspite of issuance of notices - Exs.B.13 and B.14 (16.9.2002) prior to filing of R.C.O.Ps, the Plaintiff had not chosen to issue any reply. It was submitted that if really the sale agreement - Ex.A.8 (13.3.2002) was in existence and available on the date of notice, the normal conduct of Plaintiff would have been to project Ex.A.8 at the earliest point of time and the non-issuance of any reply militates against the case of the Plaintiff. It was further submitted that the Defendant having taken the plea of forgery had examined the handwriting expert - D.W.2 to establish that the signature is forged. The trial Court fell in error in brushing aside Ex.B.17 (14.3.2006) – report of the handwriting expert and the trial Court erred in venturing upon comparison of disputed signature in Ex.A.8 to brush aside Ex.B.17. It was further submitted that merely on suspicion that the Defendant's brother's relation might have influenced the expert in issuing their report, the trial Court erred in rejecting Ex.B.17. Drawing our attention to the income tax returns of the Plaintiff, the learned Senior Counsel submitted that the plaintiff has not convincingly established his capacity to pay such a huge amount of Rs.40 lakhs towards sale consideration and while so the trial Court erred in holding that the Plaintiff had sufficient means to pay the huge sum of Rs.40,00,000/-. Drawing our attention to the number of earlier proceedings, learned Senior Counsel has submitted that the Plaintiff has fabricated the suit agreement with the help of his junior paternal uncle and close friends and the trial court erred in brushing aside the conduct of the Plaintiff and the various circumstances saying that the Plaintiff has come forward with falsity. https://hcservices.ecourts.gov.in/hcservices/ 12. Learned Senior Counsel appearing for Respondent/Plaintiff submitted that the suit property, being the family property of plaintiff, in all probability, the Plaintiff wanted to retain the property, which would strengthen Ex.A.8 – agreement of sale. It was further contended that in the Execution Proceedings, the Defendant had taken only symbolic possession and no actual physical possession was handed over to the Defendant. It was further submitted that the Plaintiff had adduced convincing evidence to show that he has sold bus route along with bus and from out of which the Plaintiff has paid the sale consideration and once the payment of consideration is proved, the other factors recede to the background. Taking us through the judgment of the trial Court, the learned Senior Counsel submitted that the trial Court had elaborately gone into evidence and rightly held that the Plaintiff is entitled to the relief of specific performance and the judgment of the trial Court is based upon the evidence and material on record warranting no interference. 13. Upon consideration of the rival contentions of the parties, evidence and material on record and judgment of the trial Court, the following points arise for consideration:- ●(1) Whether Ex.A8-agreement of sale and the endorsement thereon are proved to be true and genuine? ●(2) Whether the signatures in Ex.A8-agreement and the endorsement thereon are forged as contended by the Appellant-Defendant? ●(3) Whether the trial Court was justified in rejecting the defence plea that the signatures in Ex.A8-agreement of sale and endorsement thereon are forged? ●(4) Whether the trial Court was right in decreeing the suit for Specific Performance and ordering delivery of possession of 13 shops? ●(5) To what relief the parties are entitled to? 14. Point Nos.1 to 5:- Litigation between the parties has a chequered career. The case on hand is a typical case as to how the suit on promissory notes and the execution proceedings of attaching the property could lead to proliferation of litigation. In order to appreciate the stand of the parties, we may usefully refer to the various litigations between the parties which stretched over for nearly four decades. Defendant's father [Annamalai Mudaliar] filed O.S.No.54/1975 on the file of Sub-Court, Tiruvannamalai for recovery of money from the Plaintiff's father [Subramania Mudaliar] and the said suit was decreed on 08.09.1975 for a sum of Rs.28,632/- with subsequent interest and costs[Ex.B3]. Defendant's father [Annamalai Mudaliar] filed E.P.No.35/1976 to attach the suit property and brought to Court auction to realise the decree amount. After number of interlocutory applications in the Execution Petition, which also led to filing of revision, the property was brought for auction. In the Court auction, the Defendant was the successful bidder for https://hcservices.ecourts.gov.in/hcservices/ Rs.25,005/- besides three encumbrances of the total principal amount of Rs.60,000/- with interest. 15. Plaintiff's father filed application – E.A.No.103 of 1978 under Order 21 Rule 90 C.P.C. To set aside the court auction sale and the same was dismissed on 25.10.1978 on the ground that the security furnished by him was insufficient. Plaintiff's father preferred a revision in C.R.P.No.3217/1978 and the same was dismissed on 05.03.1979. Again, the Plaintiff's father filed another application - E.A.No.51/1980 for furnishing additional security and the same was dismissed on 25.07.1980. On 5.8.1980, the Court confirmed the auction sale and the sale certificate was issued to the Defendant/ Auction purchaser [Ex.A50]. The Plaintiff's father also filed application in R.E.A.No.143/1981 under Section 47 C.P.C. to set aside the court auction sale. 16. Apart from the number of applications filed in the Execution proceedings, others also filed suits in respect of suit property. The tenant - V.Krishnan filed suit - O.S.No.1494/1980 for permanent injunction and the said suit came to be dismissed on 19.7.1994 (Ex.B.7). The Judgment Debtor's son - Chandra Mohan i.e., brother of Plaintiff filed suit O.S.No.90 of 1985 claiming partition and also obtained order of injunction against the Defendant/Auction purchaser and the said Chandra Mohan withdrew the suit on 27.10.1987. Again on, 28.4.1988, another brother of Plaintiff – son of Judgment debtor viz., Sugumar filed O.S.No.263/1988 on the file of Sub-Court, Tiruvannamalai for partition and the said suit came to be dismissed on 4.10.1989 (Ex.B.6). 17. On 10.8.1990, there was also other proceedings in E.A.No.15/1985 to set aside the court auction sale, which again led to the filing of Appeal in C.M.A.No.994/1990 and C.R.P.No.3217 of 1992. Crossing through several obstacles and hurdles, on 23.09.1997 Defendant took delivery of the suit property and delivery was recorded on 29.09.1997 [Ex.B1 and B10], wherein the judgment debtor and his brother Ramanatha Mudaliar (P.W.2) and sons of Judgment Debtor including the Plaintiff have attested the delivery receipt. The Court Amin effected actual delivery of the suit property to the Defendant on 23.9.1997. 18. On the same date i.e., on 23.9.1997, the Plaintiff and his son and the judgment debtor entered into tenancy agreement with the Defendant (Exs.B.11 and B.12) under which the plaintiff has taken on lease the house property bearing Door No.1, Car Street on a monthly rent of Rs.1,000/- and taken on lease a shop bearing Door No.1/C, Kosamada street on a monthly rent of Rs.500/-. Brother – G.Ramanatha Mudaliar (P.W.2) has filed the suit for partition and possession of his 1/3rd share in O.S.No.210 of 1997, the rent for the house was enhanced from Rs.1,000/- to Rs.4,000/- from 1.8.2000. Rent of the shop was not enhanced. Since the plaintiff had committed wilful https://hcservices.ecourts.gov.in/hcservices/ default in payment of rent in respect of the house and the shop, the Defendant issued legal notices dated 16.9.2002 (Ex.B.13 and B.14) seeking eviction on the ground of wilful default. The Plaintiff has not issued any reply to Exs.B.13 and B.14 and thereafter the Defendant filed eviction petitions – R.C.O.P.No.10 of 2002 (Ex.B.15) and R.C.O.P.No.12 of 2002 in respect of house (Ex.B.16). The Plaintiff/tenant has been taking number of adjournments for filing counter in both the eviction petitions and ultimately the eviction petitions were adjourned to 30.3.2003 as a last chance for filing counters. It is at that time, Plaintiff/tenant had issued pre-suit notice dated 22.3.2003 setting up the case of agreement of sale and calling upon the Defendant to execute the sale deed. It is in this backdrop of several rounds of earlier litigations, the case of Plaintiff that the Defendant has entered into an agreement of sale with him has to be analysed. 19. In his evidence, P.W.1 stated that the Defendant had entered into Ex.A.2 - agreement of sale on 13.3.2002 and paid advance of Rs.20,00,000/-agreeing to sell the suit property for Rs.40,00,000/- and paid advance of Rs.20,00,000/-. In his evidence, P.W.1 has stated that Defendant had paid further advance of Rs.10,00,000/- on 1.9.2002 and made Ex.A.10 – endorsement. The Plaintiff had filed eviction petition in November 2002. Prior to filing of the eviction petition, Defendant issued Exs.B.13 and B.14 notices (dated 16.9.2002) for which the Plaintiff had not issued any reply. In the backdrop of several rounds of litigations between the parties, and the fact that the Plaintiff had been hotly contesting the eviction petitions and taking repeated adjournments for filing of counter, the question arises for consideration is, "whether the Defendant would have agreed to sell the suit property to the Plaintiff?". 20. As pointed out earlier, the case of Plaintiff is that Defendant had executed Ex.A.8 sale agreement (13.3.2002) agreeing to sell the suit property for Rs.40,00,000/- and that an advance of Rs.20,00,000/- was paid on the date of agreement of sale and further advance of Rs.10,00,000/- was paid on 1.9.2002. The Defendant categorically denies execution of the sale agreement in respect of the suit property. Defendant denies execution of Ex.A.8 and contents that Plaintiff had forged Ex.A.8 – agreement of sale with the help of his paternal uncle – P.W.2 and friends. Defendant has also pleaded that Plaintiff had no means to pay the amount. The defence plea is that Ex.A.10 endorsement (1.9.2002) has been created only to give the colour of reality to Ex.A.8 and the endorsement (Ex.A.10) has been fabricated as if Rs.10,00,000/- was paid. 21. In a suit for specific performance of contract, the onus is on the plaintiff to prove the contract, unless its existence is admitted by the opposite party. To prove the execution of agreement of sale and that he paid advance amount of Rs.20,00,000/-, Plaintiff examined himself as P.W.1 and his paternal uncle, who is also the https://hcservices.ecourts.gov.in/hcservices/ scribe of Ex.A.8, has been examined as P.W.2. P.W.3 – K.Anbazhagan and P.W.4 – B.Ravi, who are also known to the Plaintiff, were examined as attestors to Ex.A.8. P.Ws.1 to 4 have spoken about execution of Ex.A.8 and the terms and that Ex.A.8 was written by P.W.2, and that the Defendant had signed in Ex.A.8 after receipt of advance of Rs.20,00,000/-. Even though P.Ws.2 to 4 have spoken about the execution of Ex.A.8, their evidence ought to have been carefully considered since P.W.2 is the junior paternal uncle of the Plaintiff and P.Ws.2 and 3 are known to the Plaintiff for a long time. 22. P.W.2 - Ramanathan is none other than the junior paternal uncle of the Plaintiff and he has also been working as a Checker in the Plaintiff's bus. P.w.2 is not a licensed document writer. It is pertinent to note that P.W.2 has earlier filed a suit for partition and separate possession in O.S.No.210 of 1997 (Ex.B.2) on the file of Sub-Court, Tiruvannamalai and the suit property was shown as first item in C-schedule. Having regard to the close relationship of P.W.2 with Plaintiff and the fact that P.W.2 has earlier filed suit for partition, evidence of P.W.2 has to be subjected to careful scrutiny. 23. In his cross examination, P.W.2 has stated that he took 1 ½ hours for him to complete the agreement of sale. P.W.2 is not a licensed document writer. But in his cross examination, he stated that he straight away prepared the agreement of sale. P.W.3 – K.Anbazhagan and P.w.4 – B.Ravi are close friends of P.W.1. Of course, in his cross examination, P.W.1 has stated that P.Ws.3 and 4 are not his friends and that they would not come to his office daily. In his evidence P.W.1 has stated as under: @//// th/rh/M/16. 17 Mtz';fspy; rhl;rpahf ifbahg;gk; bra;jpUf;fpw V/mUzhryk; vd;gth; th/rh/M/8 kw;Wk; 10 Mtz';fsp[y; rhl;rpahf ifbahg;gk; bra;Js;s V/utpapd; mz;zd;/ th/rh/M/8 kw;Wk; 10 Mtz';fspy; rhl;rpahf ifbahg;gk; bra;Js;s utp. md;gHfd; , UtUk; vd;Dila ez;gh;fs; ,y;iy/ mth;fisj; bjhpa[k;/ mth;fs; ,UtUk; vd;Dila mYtyfj;jpw;F jpdKk; te;J ngrpf;bfhz;oUg;ghh;fs; vd;why; jpdKk; tukhl;lhh;fs;/ vg;nghjhtJ te;J nghthh;fs;/ ///@ 24. In his evidence, P.W.3 has stated that Plaintiff is known to him for about 20 years and P.W.4 – B.Ravi is known to him for 25 years. Likewise, P.W.4 has also stated that Plaintiff is known to him for about ten years and that he would occasionally visit the Plaintiff's Office. P.W.3 is running a cool drink shop and P.W.4 is without any avocation. 25. As rightly contended by the learned Senior Counsel for the Appellant/Defendant, P.Ws.3 and 4, who were without any permanent avocation and known to the Plaintiff for quite long time, in all probability, would have readily obliged to the Plaintiff. Our view is fortified by the circumstances that P.Ws.3 and 4 are not only the attestors for Ex.A.8, but also attested Ex.A.10 - endorsement. Six months