IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 04.02.2011 CORAM: THE HONOURABLE MS.JUSTICE R.MALA Appeal Suit No.273 of 2008 M.Marimuthu .. Appellant Vs. R.Narasimhan .. Respondent Appeal Suit (First Appeal)filed u/s 96 of the code of Civil procedure against the judgment and decree dated 28.9.2006 in O.S.No.54 of 2005 on the file of the Additional District Court (Fast Track Court No.1), Salem. For appellant : Mr.T.Murugamanickam For respondent: Mr.P.Mathivanan & Mr.K.Moorthy JUDGMENT Appeal Suit (First Appeal) is filed against the judgment and decree dated 28.9.2006 in O.S.No.54 of 2005 on the file of the Additional District Court (Fast Track Court No.1), Salem. 2. The averments in the plaint are as follows: The suit property absolutely belongs to the defendant. The plaintiff and the defendant entered into a sale agreement on 24.11.2004 for a sale consideration of Rs.5,75,000/- and on that day, Rs.3 lakhs was paid as advance by the plaintiff and the balance sale consideration was agreed to be paid and the sale deed was to be executed by 31.1.2005. The possession was handed over to the plaintiff. Since the property was mortgaged in Syndicate Bank, Salem Town, the defendant has given an assurance to discharge the loan and handover the original title deeds with the discharge certificate. The plaintiff was always ready and willing to perform his part of the contract. On 1.12.2004, the plaintiff paid Rs.75,000/- and on 8.12.2004, he paid Rs.75,000/- and on 22.12.2004, he paid Rs.65,000/- and the balance was only Rs.60,000/- to be paid. The plaintiff made several requests to the defendant and the defendant has given evasive reply and hence, the plaintiff wanted to purchase the property free from all encumbrances. The plaintiff issued notice, but the plaintiff https://hcservices.ecourts.gov.in/hcservices/ has not received any reply from the defendant. Hence, the plaintiff filed the suit for specific performance; alternatively, the plaintiff prayed for a direction to the defendant to refund Rs.5,15,000/- together with interest @ 12% per annum from the date of the suit till the date of realisation and for costs. 3. The gist and essence of the written statement filed by the defendant are as follows: The defendant has not offered to sell the property to the plaintiff and no sale agreement was made between the plaintiff and the defendant in respect of the suit property. The defendant has not received any sale consideration and the possession was not handed over to the plaintiff at any point of time. Till now, the defendant is in possession and enjoyment of the suit property. The defendant has not given any assurance regarding the discharge of the loan and hand over the original title deeds to the plaintiff at any point of time. The documents are forged one and the payment endorsement was also forged one. The real facts are that the defendant and one Sivagamasundari entered into "Bokkiam deed" (nghf;fpak;) (usufructuary mortgage) in respect of the suit property for Rs.1 lakh for a period of three years and the amount was also received from the said Sivagamasundari. After expiry of the "Bokkiam deed", the plaintiff approached the defendant to give the property for "Bokkiam" for Rs.1 lakh and the Bokkiam amount was directly paid by the plaintiff to the previous Bokkiam person who is Sivagamasundari and settle the amount to her. The plaintiff was residing in the suit property as per 'Bokkiam' only. During that period, the plaintiff demanded the defendant to sell the property and settle the bank loan of the defendant. The defendant refused to sell the property and subsequently, the plaintiff himself prepared and fabricated the forged sale agreement with an intention to grab the property. The defendant has not signed at any point of time. The plaintiff has not been in possession of the suit property at any point of time, on account of the forged and fabricated sale agreement. It is true that the plaintiff sent a legal notice to the defendant, but the defendant has not replied to the above legal notice. It will not bind the defendant at any point of time, because, there was no contract made between the plaintiff and the defendant. The defendant has not received any amount from the plaintiff. There is no cause of action for the suit. The defendant ultimately prayed for dismissal of the suit. 4. The trial Court, after considering the averments both in the plaint and in the written statement and the arguments of the counsel for both parties, framed three issues for consideration and upon perusing the oral and documentary evidence, i.e. P.Ws.1 and 2, D.W.1, Exs.A-1 to A-5, decreed the suit, against which, the present First Appeal has been preferred by the appellant/defendant. https://hcservices.ecourts.gov.in/hcservices/ 5. After hearing the arguments of both sides, the following points are framed for consideration in the First Appeal: (i) Whether the trial Court is correct in holding that Ex.A-1 is a sale agreement ? (ii) Whether the judgment and decree of the trial Court are sustainable ? and (iii) To what relief the appellant/defendant is entitled to ? 6. Learned counsel appearing for the appellant/defendant submitted that the appellant/defendant has not executed Ex.A-1 sale agreement and also there is no payment endorsement on the same and the signatures therein are forged ones and the sale agreement is fabricated. The trial Court invoked Section 73 of the Indian Evidence Act and compared the disputed signatures with the admitted signatures and came to the conclusion that Ex.A-1 is a true and genuine document. The finding of the trial Court is erroneous. Learned counsel for the appellant/defendant further submitted that the appellant/defendant never executed sale agreement and he has created only "Bokkiam" (nghf;fpak;) (usufructuary mortgage) in favour of Sivagamasundari for Rs.1 lakh and after the period of usufructuary mortgage, to discharge the repayment of Rs.1 lakh, the defendant received Rs.1 lakh from the respondent/plaintiff and executed usufructuary mortgage and the defendant has not created any sale agreement. The trial Court failed to consider the same. He further submitted that it is true that the defendant has received the notice and since Ex.A-1 is a fabricated document, the appellant/defendant did not send any reply. Learned counsel appearing for the appellant/defendant relied upon a decision of this Court reported in 1999 (III) CTC 156 (Somasundaram Vs. Palani) and submitted that the trial Court committed error in comparing the signature without getting assistance from the experts. He prayed for comparing the signatures with the ones affixed in the vakalat and the written statement, which has come into existence after the dispute arose and the finding of the trial Court is not in accordance with law, and hence, he prayed for allowing the First Appeal. 7. Learned counsel appearing for the respondent/plaintiff submitted that the trial Court has considered Ex.A-1 as a sale agreement and the payment endorsements, dated 1.12.2004, 8.12.2004 and 22.12.2004 and came to the correct conclusion that Ex.A-1 is a sale agreement; to prove the genuineness of Ex.A-1, the attestor was examined as P.W.2. Learned counsel for the respondent/plaintiff further submitted that Ex.A-1 contains six signatures of the appellant/defendant, and the trial Court has considered all the aspects in proper circumspection and granted the decree of specific performance and hence, he prayed for dismissal of the First Appeal. 8. Considering the rival submissions made by both sides, now, this Court has to decide as to whether Ex.A-1 is a sale agreement or https://hcservices.ecourts.gov.in/hcservices/ it was executed only as a Bokkiam (usufructuary mortgage). 9. It is well settled principle of law that as per Section 92 of the Indian Evidence Act, no one is entitled to let in evidence contra to the registered document. It is appropriate to incorporate Section 92 of the Indian Evidence Act, as follows: Section 92. Exclusion of evidence of oral agreement: When the terms of any such contract, grant or other disposition of property, or any matter required by law to be reduced to the form of a document, have been proved according to the last section, no evidence of any oral agreement of statement shall be admitted, as between the parties to any such instrument or their representatives in interest, for the purpose of contradicting, varying, adding to, or subtracting from, its items. Proviso (1)--: Any fact may be proved which would invalidate any document, or which would entitle any person to any decree or order relating thereto; such as fraud, intimidation, illegality, want of due execution, want of capacity in any contracting party, want or failure of consideration, or mistake in fact or law. Proviso (2)--The existence of any separate oral agreement as to any matter on which a document is silent, and which is not inconsistent with its terms, may be proved. In considering whether or not this proviso applies, the Court shall have regard to the degree of formality of the document. Proviso (3)--The existence of any separate oral agreement, constituting a condition precedent to the attaching of any obligation under any such contract, grant or disposition of property, may be proved. Proviso (4)--The existence of any distinct subsequent oral agreement to rescind or modify any such contract, grant or disposition of property, may be proved, except in cases in which such contract, grant or disposition of property is by law required to be in writing, or has been registered according to the law in force for the time being as to the registration of documents. Proviso (5)--Any usage or custom by which incidents not expressly mentioned in any contract are usually annexed to contracts of that description, may be https://hcservices.ecourts.gov.in/hcservices/ proved: Provided that the annexing of such incident would not be repugnant to, or inconsistent with, the express terms of the contract. Proviso (6).--Any fact may be proved which shows in what manner the language of a document is related to existing facts." 10. As per Section 92 of the Indian Evidence Act, the person who wants to give evidence contra to the registered document, he must prove his defence and so, the burden is upon the appellant/defendant to prove that Ex.A-1 was executed only for the loan amount of usufructuary mortgage. To prove the same, except the ipse-dixit (oral evidence) of D.W.1 (defendant), no one has been examined. Admittedly, two attestors attested the document Ex.A-1, and one of the attestors had been examined as P.W.2 to prove Ex.A-1 sale agreement as well as the payment endorsements therein. As per Section 92 of the Indian Evidence Act, the appellant/defendant has miserably failed to prove that Ex.A-1 was executed only for the usufructuarly mortgage (nghf;fpak;) and not as sale agreement. 11. It is true that the appellant/defendant has taken inconsistent defence. At the time of trial, he must select or elect any one of the defences. In this regard, it is appropriate to incorporate the defence raised by the appellant/defendant in the written statement, in paragraph 4, as follows: "4. ... The real fact that the defendant and one Sivagamasundari entered into a Boggiam deed in respect of the suit property for a sum of Rs.1,00,000/- for the period of 3 years and the amount received one Sivagamasundari by this defendant. After the expiry of the boggiam deed period this plaintiff approached the defendant to give the property for boggiyam for a sum of Rs.1,00,000/- and this boggiam amount was directly paid by the plaintiff to the previous boggiam person who is Sivagamasundari and settle the amount to her and this plaintiff is residing in the suit property as per boggiam only. During this period this plaintiff demanded the defendant to sell the property and settle the bank loan of the defendant. But this defendant has refused to sell the suit property. Subsequently this plaintiff himself prepared this fabricated and forged sale agreement with an intention to grab the property. This defendant has not signed any of the deed at any point of time. This plaintiff has not being in possession of the suit property at any point of time on account of the forged and fabricated sale agreement." https://hcservices.ecourts.gov.in/hcservices/ 12. So, the appellant/defendant disputed the signature in Ex.A-1. Now, to prove the genuineness of Ex.A-1 sale agreement, the attestor, namely P.W.2 Kandasamy was examined, besides the evidence of the respondent/plaintiff/P.W.1. To strengthen his case, the plaintiff has issued notice to the defendant under Ex.A-2, which was received by the defendant under Ex.A-3 postal acknowledgement, but no reply was sent by the appellant/defendant. The Encumbrance Certificate is marked as Ex.A-4. The photostat copy of the sale deed in favour of the appellant/defendant, is marked as Ex.A-5. 13. Admittedly, the appellant/defendant has raised a plea that he has created only usufructuary mortgage (Bokkiam--nghf;fpak;) in favour of one Sivagamasundari, but none of the documents had been marked before Court on the side of the defendant. While perusing Ex.A-4 Encumbrance Certificate, it is from 1.1.1986 to 26.1.2005, but there is no endorsement to the effect that the property was subjected to creation of usufructuary mortgage in favour of one Sivagamasundari, which has falsified the defence raised by the appellant/defendant. So, I am of the view that the defence raised by the appellant/defendant in paragraph 4 of the written statement, is not true. 14. Now, this Court has to consider as to whether Ex.A-1 contains the signatures of the appellant/defendant. Even though the appellant/defendant has raised a defence that he has not signed any sale agreement, but as already stated, Ex.A-1 contains six signatures of the appellant/defendant. But while perusing Ex.A-1 sale agreement along with payment endorsements, I am of the view that no one can forge those six signatures. 15. In this connection, it is worthwhile to quote Section 73 of the Indian Evidence Act, as follows: "Section 73 : Comparison of signature, writing or seal with others admitted or proved : In order to ascertain whether a signature, writing, or seal is that of the person by whom it purports to have been written or made, any signature, writing, or seal admitted or proved to the satisfaction of the Court to have been written or made by that person may be compared with the one which is to be proved, although that signature, writing, or seal has not been produced or proved for any other purpose. The court may direct any person present in Court to write any words or figures for the purpose of enabling the Court to compare the words or figures so written with any words or figures alleged to have been written by such https://hcservices.ecourts.gov.in/hcservices/ person. This section applies also, with any necessary modifications, to finger-impressions." 16. So, as per Section 73 of the Indian Evidence Act, the Court is empowered to compare the admitted signatures with the disputed ones. But the facts of the present case falsify the defence raised by the appellant/defendant that he has not signed Ex.A-1 sale agreement. 17. At this juncture, it is appropriate to consider the decision of this Court reported in 1999 (III) CTC 156 (Somasundaram Vs. Palani), wherein, this Court, after relying on various decisions of Supreme Court, held as follows: "13. It is clear therefrom that the main reason for dismissing the suit is comparison of the signatures. Even though the Court may have the power to compare the signatures, there must be some admitted signature of the defendant, on the basis of which a comparison will have to be made. In this case, a comparison has been made on the basis of signatures affixed by defendant in the vakalath and written statement, which are documents that have come into existence after the dispute arose, and after the promissory note in question was filed into Court along with plaint. A comparison should not have been made on the basis of those signatures. If that be so, it has to be held that the comparison was not made in accordance with law, even though the Court is empowered to make a comparison. 14. I have gone through the evidence of P.Ws.1 and 2, and also perused Ex.A-1. On going by their evidence, I feel that the transaction pleaded by plaintiff is true. P.W.2 is one of the attestors to the promissory note, and he has also spoken about the execution of the promissory note and also about the passing of consideration. According to the defendant, the plaintiff might have forged the signature from the accounts maintained by plaintiff in connection with paddy transactions. P.W.1 denies having, maintained any such accounts though he admits that he had paddy dealings with defendant. Again, accounts are being maintained by plaintiff for which the signature of defendant is not necessary. It is not the case of defendant that he has affixed his signatures in the so called accounts. If there were accounts, nothing prevented the plaintiff from producing the accounts and https://hcservices.ecourts.gov.in/hcservices/ file the suit on that basis. The evidence of D.W.2 also should not have been relied on. If we are to act on the evidence of D.W.2, the Court will have to take him as a party to the fraud. There is no necessity for a document writer to write a promissory note, especially when Ex.A.1 is in a printed form, and, except the amount and signature, all other details are printed. The lower Court has found fault with the evidence of P.W.1 on the ground that some portions of Ex.A.1 seem to have been obliterated. It assumed that the plaintiff wanted to give a colour of genuineness for the same. I do not find any justification in coming to that conclusion when the defendant himself has no such case." 18. Learned counsel for the appellant/defendant .... respondent/plaintiff, has contended that the trial Court, in paragraph 13 of its judgment, observed as follows: "13. The Court, invoking Section 73 of Indian Evidence Act compared the signature of the defendant found in his vakalath, written statement, his deposition recorded in the court and Ex.A1 and the endorsements therein, and the findings is that all the signatures have been affixed by the defendant himself and all the signatures are his signatures only." 19. Admittedly, the document Ex.A-1 sale agreement came into existence on 24.11.2004; the suit was filed on 3.3.2005, i.e. nearly after four months from 24.11.2004. The written statement was signed by the defendant on 31.7.2005, i.e. nearly four months from the date of filing of the suit. So, there will not be much variation of the signatures in between the periods. As already stated, no prudent man will concoct or forge the six signatures of the other person, i.e. the defendant herein. Every time the plaintiff paid the amount, the same has been accepted and signed by the defendant. Considering the said aspects, I am of the view that the trial Court has come to the correct conclusion that Ex.A-1 sale agreement is a true and genuine document. 20. The respondent/plaintiff paid the entire sale consideration except Rs.60,000/- which is yet to be paid. The plaintiff issued notice under Ex.A-2 to the defendant on 10.1.2005 and filed the suit on 3.3.2005. The respondent/plaintiff averred in the plaint that he was always ready and willing to perform his part of the contract and he is therefore entitled to the decree of specific performance. The trial Court is correct in holding that the respondent/plaintiff is entitled to the decree of specific performance. The findings of the trial Court are fair and proper and do not warrant any interference. Point (i) is answered accordingly. https://hcservices.ecourts.gov.in/hcservices/ 21. Point Nos.(ii) and (iii): In view of the answer given above in point (i), holding that Ex.A-1 sale agreement, is a true and genuine document, and in pursuance of the same, the respondent/plaintiff was always ready and willing to perform his part of the contract, and has paid the sale consideration except Rs.60,000/- out of Rs.5,75,000/-. Since the respondent/plaintiff entered into sale agreement on 24.11.2004, and three months' time was granted for execution of the sale deed, and since the appellant/defendant has not executed the sale deed, after issuing the notice, the respondent/plaintiff filed the suit on 3.3.2005 and he has also paid the major portion of sale consideration at Rs.5,15,000/- out of Rs.5,75,000/- and the appellant/plaintiff also averred and proved that he was always ready and willing to perform his part of the contract as per Section 16(c) of the Specific Relief Act, and so, I am of the view that the respondent/plaintiff is entitled to the decree of specific performance. The trial Court considered all these aspects in proper perspective and granted the decree. The judgment and decree of the trial Court are sustainable and do not warrant interference. So, the appellant/defendant is not entitled to any relief. 22. In the result: (a) The First Appeal is dismissed. (b) The judgment and decree of the trial Court are confirmed. (c) Two months' time is granted to the parties for execution of Ex.A-1 sale agreement. (d) No costs. Sd/- Asst. Registrar //true copy// Sub Asst.Registrar cs To 1.The Additional District Judge (Fast Track Court No.1), Salem. 2.The Section Officer, V.R. Section, High Court, Madras. 1 cc to Mr.P.Mathivanan, Advocate, Sr.No.9083 Judgment in A.S.No.273 of 2008 MP {CO}/TP/26.4.2011. https://hcservices.ecourts.gov.in/hcservices/