Karuna @ Natarajan vs S. Dhanakotti

S. Vimala, J.—Plaintiffs are the appellants.

Plaintiffs filed the suit in O.S. No.63 of 1984 on the file of Sub Court, Thirupattur, for specific performance and for possession, based upon the sale agreement - Ex.A1. The suit was dismissed by judgment and decree dated 07.10.1996. Challenging the same, plaintiffs filed the appeal in A.S. No.52 of 1997 before the Principal District Court, Vellore. The appeal was also dismissed by the judgment and decree dated 03.12.2002. Hence, the second appeal.

Facts:

The plaintiffs are the nephews of the first defendant. The second and third defendants are the purchasers from the first defendant. The first defendant was the owner of the property. The next friend of the plaintiffs entered into a sale agreement in respect of the suit properties with the first defendant on 02.12.1983. The total sale consideration was Rs.52,250/-, out of which an advance of Rs.15,250/- is said to have been paid on the date of agreement itself. The balance amount of Rs.37,000/- is payable within a period of one year. The first defendant did not obtain income tax clearance certificate. The plaintiffs were ready and willing to perform their part of the contract. Hence, the suit for specific performance.

The suit was resisted on the following contentions:

The first defendant did not enter into any sale agreement with the plaintiffs on 02.12.1983. Suit sale agreement is a forged one. The first defendant entered into an agreement to sell the property with the second defendant on 01.08.1984. The first defendant''s brother, Subramani and Murugaiyan, pressed for cancellation of the agreement and for execution of sale deed in favour of Subramani. They wanted to prevent the first defendant from executing any sale deed in favour of the second defendant.

The second defendant was not aware of the alleged suit agreement at the time of his purchase on 29.08.1984. Thus, they are bona fide purchasers for value, without notice of the alleged sale agreement.

The first defendant executed Ex.B8 sale deed dated 29.08.1984 and Ex.B9 dated 05.09.1984 in favour of defendants 2 and 4 respectively. 4th defendant is a minor represented by his next friend/mother, 3rd defendant. Thus, defendants 2 to 4 are subsequent purchasers.

In view of the averments raised in the written statement, the issues to be considered are a) whether Ex.A1 sale agreement is genuine and therefore, plaintiffs are entitled to specific performance; and b) whether defendants 2 to 4 are bona fide purchasers for value, without notice of Ex.A1 sale agreement and therefore, Ex.B8 and B9, sale deeds, are valid.

Both the Courts below gave a finding that the sale agreement is a forged one. Hence, this second appeal, which was admitted on the following substantial questions of law:

"1. Whether the plea of forgery has been established by the first defendant especially when the signature of Ex.A.1 is admitted to be of the 1st defendant ?

Whether the plaintiffs have established their readiness and willingness to perform their part of contract ?"

Learned counsel for the appellants / plaintiffs has pointed out the following circumstances and contended that the sale agreement is true and it cannot be a forged one.

The plaintiffs are the nephews of the first defendant and therefore, there is no need for them to forge the signature of the first defendant, especially when there is no enmity between them. The evidence of D.W.1 is pointed out where he has alleged to have stated that there was no previous enmity between him and the plaintiffs'' father.

8.1. This part of evidence cannot be appreciated in a truncated way. This evidence has to be looked into from the perspective of the defence taken. The defence is that the sale agreement and sale deed in favour of defendants 2 to 4 were anterior in point of time and only thereafter, the plaintiffs brought into existence the suit sale agreement. It is the specific case of the defendants where after the execution of sale agreement in favour of the 2nd defendant, the brothers of the first defendant opposed it and pressed him to cancel it and wanted sale of property in favour of the plaintiffs'' father for a lesser price; on refusal, the suit sale agreement was brought into existence. Therefore, if the evidence is construed in an appropriate way, it would be evident that what is stated by D.W.1 is that there had been no enmity prior to the transaction between himself and the rest of the defendants, as the words used in the evidence is " munbu virotham illai "Kd;g[ tpnuhjk; ,y;iy" and not mun virotham illai "Kd; tpnuhjk; ,y;iy". Moreover, when there is positive evidence to show that the signature as found in the sale agreement did not match with the admitted signature of the first defendant, the evidence regarding prior enmity cannot be given much importance. In other words, when the direct evidence is clinching, the evidence leading to inferences will not have much significance.

8.2. It would be appropriate to point out the evidence regarding the reason for the defendants to approach the Sub Registrar office at Vellore when the approprirate Sub Registrar office was only at Vaniambadi. Curiously, it is contended that the defendants ought to have registered the document at Vaniambadi and only in order to hide the effect / impact of the sale agreement in favour of the plaintiffs, they went to the office of Registrar Office at Vellore. This argument does not stand to any logic. When the sale agreement is an unregistered agreement, the impact of registration would not be of any significance, even if it is registered at Vaniambadi. The registration of the sale deeds at Vellore only probabilise the contention of the first defendant that only apprehending bodily injury from the brother of the plaintiffs'' father and plaintiffs'' father, they went to Vellore and could not get the sale deed registered at Vaniambadi.

The next contention of the learned counsel for the appellants is tha the execution of the sale agreement has been amply proved through the examination of P.W.4, scribe and by the examination of P.W.3, one of the attesting witnesses. The question is whether mere examination of witnesses is sufficient or whether the evidence of those witnesses should satisfy the conscience of the Court that the alleged transaction must be true.

9.1. So far as this case is concerned, the examination of scribe and the attesting witness, has only proved that Ex.A1 sale agreement cannot be true, because in the evidence of P.W.4, scribe, it is stated that, when he was working in the Sub Registrar office, one Subramani (plaintiffs'' father) came there and instructed him to write a sale agreement in accordance with the dictation given by him and on his writing the sale agreement, Subramani took away the sale agreement and after three days, he handed over the document to him and thereafter, he signed it in the capacity as scribe. He did not state that neither the attesting witnesses were available in the place where agreement was written nor that the attesting witnesses signed in the presence of each other. What is materially missing is that he did not say that after the sale agreement was written by him, he saw the witnesses signing the document. What he has stated is that except signing after three days in the sale agreement as a scribe, he did not know anything else. In the evidence of P.W.3, who is the attesting witness to Ex.A1 sale agreement has given evidence stating that when Narayana Rao (P.W.4) wrote the sale agreement, a sum of Rs.15,250/- was given as advance and the first defendant Dhanakoti signed in the agreement in his presence and rest of the witnesses also signed it. This part of the evidence is clearly contradictory to the evidence of P.W.4, scribe. Moreover, the gap between the signature of the attesting witnesses and that of the scribe clearly stand as a testimony towards untruthfulness of the sale agreement. Therefore, the execution of document did not get proved through the examination of P.W.3 and P.W.4.

9.2. There are vital contradictions with regard to character of the sale agreement, which is pointed out to show that sale agreement could not have been a real document. When P.W.1 has stated that the sale agreement itself is a registered document, whereas, P.W.2 has stated that sale agreement is an unregistered one. When the contradiction is to this extent, one can reasonably infer that the sale agreement could not have come into existence as alleged. Therefore, it must be a forged one.

It is the case of defendants that on the side of the plaintiffs, there were attempts to prevent the first defendant from executing the sale deed in favour of defendants 2 to 4 and after their failure, Ex.A1 had been concocted antidating it as 02.12.1983. But the case of the plaintiffs is that only subsequent to Ex.A1 sale agreement and after fully knowing the same, defendants 2 to 4 have purchased the properties in order to defeat the rights of the plaintiffs. The defence of forgery have to be considered in the light of those claims.

10.1. In the evidence of D.W.1, it is specifically stated that he did no execute Ex.A1 sale agreement. It is the contention of the learned counsel for the plaintiffs that no step was taken by the first defendant for appointment of hand writing expert to find out the genuineness or otherwise of Ex.A1 sale agreement. This contention is against the settled principles of law. When it is claimed by the plaintiffs that it is only the first defendant who executed the sale agreement, it is for the plaintiffs to prove the same and to take steps for examination of handwriting expert. It is not for the first defendant to take steps for the examination of hand writing expert.

10.2. Even otherwise, mere examination of signatures of the first defendant in the admitted sale deeds under Ex.B8 and B9 with that of the signature in Ex.A1 (disputed) would go to show that the signature in Ex.A1 could not be that of the first defendant. The signature under Ex.B8 in various pages are consistent, similar and continuous (letters). The signature as found in Ex.B9 are similar to the signature found under Ex.B8 and the signatures found in all pages of Ex.B9 also have similar characteristics. The signature under Ex.A1 is found to be different from that of the signatures found in Ex.B8 and Ex.B9. Each and every letter in the signature (Ex.A1) is different from that of the signatures found in Ex.B8 and Ex.B9. Comparison of the signature of Ex.A1 with that of Ex.B8 and B9 would go to show that there ought to have been an attempt to forge the signature of the first defendant by imitation.

It is contended that the defendants have taken contradictory stand with regard to execution of the suit sale agreement; at one point of time, it is stated that the signature in the blank paper has been used to create the document ; and at another point of time, it is stated that the signature has been forged and therefore, the defence should not be accepted.

11.1. It is pointed out that no such contradictory defence has been taken and the defence taken is consistent. The learned counsel for the defendants pointed out the averments in paragraph 3 of the written statement of the first defendant, wherein it is stated as follows:

"The defendant and plaintiffs'' brother Subramani, had done toddy business and therefore, he is having application forms and other records containing this defendant''s signature. The plaintiffs'' father .... conspired together and created a false agreement forging this defendant''s signature .."

From the above defence taken, it is clear that the defence is not contradictory. It is nowhere stated that the signature which was available in blank papers have been used to create the sale agreement. What is stated is that the signature available in the document might have been used to create yet another false document forging the first defendant''s signature. Therefore, the contention that there is mutually contradictory defence cannot be accepted.

Learned counsel for the defendants pointed out that the stamp papers stand in the name of K.M. Rathinam and there is no necessity for the plaintiffs to have purchased the stamp papers in the name of K.M. Rathinam and this would only go to show that only in order to create a antidated document, the stamp papers which ought to have been available in the name of K.M. Rathinam might have been used for the purpose of creating an antidated sale agreement, i.e., antidating the same, prior to the sale deeds under EX.B8 and B9. In the absence of any explanation as to why the stamp papers stood in the name of K.M. Rathinam, the contention of the defendants has to be accepted.

The next contention is that the defendants did not take the plea that plaintiffs were not ready and willing to perform their part of the contract or the plaintiffs have no financial capacity to complete the transaction. This contention also cannot be accepted as the first defendant has chosen to deny the execution of sale agreement itself, it is not necessary for him to take such a plea. Even if such a plea is taken, it could be argued that the defence taken is destructive of the plea taken by him with regard to authenticity of Ex.A1.

The learned counsel for the respondents/defendants pointed out that plaintiffs have not come to Court with clean hands and having taken a contradictory stand with regard to possession of suit property, they have to be non-suited.

14.1. According to the plaintiffs, as per Ex.A1 possession was given to the plaintiffs even on the date of execution of sale agreement, i.e., on 02.12.1983. In the plaint, plaintiffs have asked for recovery of possession. When the case of the plaintiffs is false on material particulars, the plaintiffs must be nonsuited is the contention of the learned counsel for the defendants. In support of the contention the decision reported in 2013 (6) CTC 624 (G. Anbazhagan v. G. Manoharan (deceased) and others) is relied upon. In the said decision, relying upon the decision of a Division Bench of this Court reported in 1993 (2) LW 86 (Mallaya Gounder v. P. Ramaswami Gounder), it was held that, relief of specific performance cannot be granted when a false case with regard to delivery of possession was concocted for the purpose of the case. This decision is applicable to the facts of this case and the plaintiffs have come forward with a contradictory case with regard to possession. Therefore, as per this decision, the plaintiffs have to be non-suited.

The execution of Ex.A1 sale agreement is not proved and therefore, the plaintiffs are not entitled to the relief of specific performance. Therefore, the dismissal of the suit and the first appeal by the Courts below is justified.

In the result, the second appeal is dismissed, confirming the judgment and decree of both the Courts below. No costs.