Govindasamy Gounder vs Annamalai and Ramachandran

R.S. Ramanathan, J.—The Plaintiff in O.S. No. 432 of 1983 on the file of the Additional District Munsif''s Court, Tirupattur is the Appellant.

The Plaintiff filed the suit for specific performance of an agreement of sale dated 5.3.1983 executed by the 1st Defendant in his favour in respect

of the suit property agreeing to sell the same for consideration of Rs. 7,975/-and paid an advance of Rs. 250/- As per the agreement of sale, the

balance of sale consideration has to be paid on or before 5.6.1983 and the Appellant is always ready to pay the balance consideration and get the

document registered and the Defendants with a view to avoid the contract made the 2nd Defendant who is the son of the 1st Defendant to issue a

notice stating that he has got half share in the property and the agreement of sale will not bind him. Hence, the suit was filed for specific

performance.

The 1st Respondent/ 1st Defendant contested the suit stating that he has not executed the agreement of sale as alleged by the Appellant/ Plaintiff

and the signature found in the agreement of sale is not of the 1st Defendant and it was a forged one and due to his illness he was not able to reply

to the notice sent by the Appellant/ Plaintiff and the 2nd Defendant is having half share in the suit property.

The 2nd Defendant filed a separate statement stating that the 1st Defendant has no right to execute the agreement of sale in respect of the entire

property and the property is an ancestral property and he has got undivided half share in the same and therefore it is not binding on him.

The trial Court held that the agreement of sale was a genuine one and the 1st Defendant has got right to enter into an agreement of sale in

respect of the suit property and decreed the suit as prayed for. The 1st Respondent/ 1st Defendant filed an appeal and the first appellate Court

reversed the finding of the trial Court and held that Ex.A1 the agreement of sale is not a genuine one and therefore the Appellant will not get any

right under the same and allowed the appeal and dismissed the suit. Hence, the Second Appeal is filed by the Plaintiff.

At the time of admission of the Second Appeal, the following substantial questions of law were framed by this Court:

(1) Whether the first appellate Court was in error in reversing the judgment and Decree of the learned trial Judge on the ground that Ex.A1 has not

been properly proved ?

(2) Whether the lower appellate Court has failed to appreciate Ex.A3 issued by the 2nd Defendant accepting the agreement but challenging the

right of 1st Defendant to deal with the share of 2nd Defendant ?

(3) Whether the 1st Respondent who has admitted the execution of Ex.A1 is estopped from denying the sale and the right of the Plaintiff to

specifically enforce it ?

(4) Whether the 1st Defendant could not have entered into Ex.A1 to sell the joint family property in his possession as ''Kartha'' of the family ?

Mr. V. Raghavachari the learned Counsel for the Appellant submitted that the lower appellate Court erred in holding that the agreement of sale

was not a genuine one and it was a forged one without appreciating the evidence of DW1, the 1st Respondent and the statement and notice sent

by the 2nd Defendant/ 2nd Respondent. Mr. V. Raghavachari the learned Counsel for the Appellant further submitted that though in the written

statement the 1st Respondent had taken the plea that his signature was forged and fabricated, he admitted the signature found in Ex.A1 in evidence

and the 2nd Defendant issued a notice wherein the agreement of sale was admitted by him and the 2nd Defendant admittedly was living with the

1st Defendant at the time of issuance of notice and therefore having regard to the admission of the 1st Respondent/ 1st Defendant and the notice

sent by the 2nd Defendant marked as Ex.A3, the lower appellate Court ought to have held that Ex.A1 the agreement of sale was a genuine one,

executed by the 1st Respondent. He further submitted that the 1st Respondent being the ''Kartha'' of the family is entitled to execute the agreement

of sale on behalf of his son the 2nd Defendant and therefore the 2nd Defendant is also bound by the agreement of sale and he cannot challenge it.

On the other hand, Mr. D. Rajendran, the learned Counsel for the Respondents submitted that a casual perusal of Ex.A1 would make it clear

that it is only a forged document. According to him, Ex.A1 was written in the stamp papers purchased on 10.4.1981 in the name of one Mani and

in the middle of the stamp papers a thumb impression is also found and no explanation has been given by the Plaintiff for using the stamp papers

which were purchased two years earlier and purchased in the name of some other person and no explanation was given for the presence of thumb

impression in the stamp papers. He therefore submitted that Ex.A1 must have been fabricated by the Plaintiff and therefore the Plaintiff cannot

claim any right under the said document. He further submitted that mere admission of signature in a document will not amount to the execution and

even though the 1st Defendant has admitted in evidence admitting his signature found in Ex.A1 it will not amount to due execution unless it was

proved that he signed the document after knowing the contents of the same. In support of his contention he relied upon the judgment reported in

Girish Kumar H. Jain Vs. Mrs. Rani Mary, . He further submitted that admittedly the 2nd Defendant has got undivided half share in the suit

property and therefore the Appellant cannot claim the entire property.

Heard both sides.

In this case we will have to see whether Ex.A1 the agreement of sale was validly executed by the 1st Respondent/ 1st Defendant. As

submitted by the learned Counsel for the Respondents that though the agreement of sale was written in the stamp papers purchased on 10.4.1981

in the name of one Mani and it also contains thumb impressions, PW1 has stated in his evidence that the stamp papers were purchased two years

earlier and that was used in writing the agreement and he asked his cousin Mani to purchase the stamp papers and that was the reason, his cousin

Mani''s name was mentioned in the stamp papers. Further, no question was put to PW1 about the thumb impression found in the stamp papers.

The Appellant/ Plaintiff also examined one of the attesting witnesses and he has also supported the case of the Appellant with regard to the

execution. Further, in the year 1983 there was no prohibition under the Stamp Act that the stamp papers purchased in the name of another cannot

be used. Therefore, having regard to the fact that PW1 the Appellant herein has explained the reason for using the stamp papers purchased two

years earlier and no question was put to PW1 regarding the thumb impression and PW2 has supported the case of the Appellant regarding the

execution of Ex.A1 and the admission of 1st Respondent about the signature in Ex.A1, would prove that Ex.A1 was executed by the 1st

Respondent/ 1st Defendant.

Though in the judgment reported in Girish Kumar H. Jain Vs. Mrs. Rani Mary, , this Court has held that mere affixing of thumb impression will

not amount to the execution unless the evidence was let in to prove that the executant was aware of the contents of the document, having regard to

the facts of the case, the above judgment cannot be relied. It is not the case of the 1st Respondent that his signature was forged. As a matter of

fact, though such plea was taken in the written statement in evidence he admitted his signature. He did not say under what circumstances, his

signature was obtained. Therefore, when the executant admitted the signature and did not state any reason for his signature in the document it can

be presumed in the absence of other evidence that the executant signed the document after knowing the contents. Further, the 2nd Respondent

who is none other than the son of the 1st Respondent issued a notice prior to the filing of the suit admitting the execution of agreement of sale by

the 1st Respondent in favour of the Appellant. Admittedly, both the Respondents are living together in the same house and therefore when the 2nd

Respondent issued a notice stating that agreement of sale executed by the 1st Respondent will not bind him, he indirectly admitted the execution of

the agreement of sale . For all the above reasons, I hold that the first appellate Court committed an error in holding that Ex.A1 was not properly

proved and I hold that Ex.A1 was executed by the 1st Respondent/ 1st Defendant.

The next question is whether the agreement of sale executed by the 1st Respondent binds the 2nd Respondent and whether the 1st

Respondent can convey the entire property in favour of the Appellant as per Ex.A1. Admittedly, the property is the ancestral property and the 2nd

Respondent is having right by birth and is having undivided half share. Even though the 1st Respondent is the ''Kartha'' in the absence of any family

necessities he cannot convey the entire property without the consent and concurrence of the 2nd Respondent. In this case admittedly, the 2nd

Respondent was a major at the time of execution of Ex.A1 and he has not signed in the said document. The 1st Respondent was having only

undivided half share and therefore he can convey only his undivided half share under Ex.A1 though he purported to have agreed to convey the

entire property. u/s 12(3) of the Specific Relief Act, where a party to a contract is unable to perform the whole of his part, and the part which must

be left unperformed bears only a small proportion to the whole and admitting of compensation in money, the Court may at the suit of either party

direct the specific performance of so much of the contract as can be performed and award compensation in money for the deficiency. u/s 12(3) of

the Specific Relief Act, the Court may at the suit of the other party, direct the party in default to perform specifically so much of his part of the

contract as he can perform, if the other party in a case falling under Clause (a) of Section 12(3)(a) pays or has paid the agreed consideration for

the whole of the contract reduced by the consideration for the part which must be left unperformed. In this case, the part that can be performed by

the 1st Respondent is only in respect of his half share and Mr. V. Raghavachari, the learned Counsel for the Appellant submitted that the Appellant

is prepared to purchase half share by paying the reduced price. Section 12(2) and (3) was interpreted by the Hon''ble Supreme Court in the

Judgments reported in A. Abdul Rashid Khan (Dead) and Others Vs. P.A.K.A. Shahul Hamid and Others, ., Manzoor Ahmed Margray Vs.

Gulam Hassan Aram and Others, and held that where any property is held jointly and once any party to the contract has agreed to sell such joint

property, the agreement, then, even if the other co-sharer has not joined, at least to the extent of his share, the party to the contract is bound to

execute the sale deed. The same principle was reiterated in Kammana Sambamurthy v. Kalipatnapu Atchutamma 2011 (1) MLJ 404 SC.

Further, in the judgment reported in 1993 (1) LW 599 P. Alagesan & 5 others v. A. Mariadas and 6 others, this Court has held that the

''Kartha'' cannot convey the entire property when other co-parceners are there and when they have not given consent for the same. Therefore, the

Appellant is entitled to get specific performance of undivided half share of the 1st Respondent in the suit property and he cannot claim the entire

property. Hence, the substantial questions of law Nos. 1 to 3 are answered in favour of the Appellant and the substantial question of law No. 4 is

answered against the Appellant holding that 1st Respondent/ 1st Defendant can sell his half share in the property and the agreement of sale will not

bind the 2nd Defendant.

Hence, the Second Appeal is partly allowed and the Appellant is entitled to get a decree in respect of undivided half share which belongs to

the 1st Respondent by paying 50% of the agreed consideration. No costs.