Rajiah Nadar vs Manonmani Ammal

This Second Appeal is directed against the judgment of the learned District Judge, Tirunelveli, in A.S.No.148 of 1984 reversing the judgment of

the learned Subordinate Judge, Tuticorin, in O.S.No.217 of 1982. The defendant in the suit is the appellant in the present Second Appeal.

The suit was filed for specific performance of contract of sale praying for a decree directing the defendant to execute a sale deed on receiving

the balance of Rs.6,250 within the date to be specified by the Court, failing which the Court to execute the sale on behalf of the defendant.

According to the plaintiff, the suit property belongs to the defendant and the defendant entered into an agreement of 11.10.1981 with the plaintiff

to sell the property for a consideration of Rs.15,750 and had received an advance of Rs. 5,500 on that date itself and had executed a written

agreement to that effect. As per the conditions of the agreement, the defendant should execute a sale deed at the expense of the plaintiff in three

months time after receiving the balance of Rs.10,250. According to the plaintiff, after the execution of the sale agreement, the defendant had

received Rs.4,000 on 28.10.1981 from the plaintiff as part of the balance due and had made endorsement on the back of the agreement itself.

Though the plaintiff was requesting the defendant to execute a sale deed, the defendant was evading the execution of the same giving one excuse or

another. The Plaintiff was always ready and willing to perform her part of contract during the agreed period and continues to be ready to pay the

balance and to get the sale deed in her name. Even now she was ready to perform her part of the contract. Only recently the plaintiff came to

know that the defendant was wantonly delaying the execution and with a view to sell the property to the third parties for higher price and therefore,

on 14.9.1982 the plaintiff had sent a notice through her advocate to the defendant for fixing the date of execution of the sale deed. The defendant

had received the notice, but did not send any reply. Hence the suit.

The defendant in the written statement while disputing the suit claim would state that he did not enter into a contract of sale with the plaintiff and

did not receive Rs.5,500 as advance much less on 11.10.1981. The further contention that the defendant had received Rs.4,000 on 28.10.1981

towards the sale was also false. The claims of the plaintiff as having been ready and willing to perform the contract and that the defendant was

evading were not true and tenable. According to the defendant, the husband of the plaintiff entered into a contract of sale with the defendant with

reference to the eastern 5 cents of land lying east of the suit property for a sum of Rs.15,750 on 10.10.1981 and got the signature of the defendant

in blank papers stating that the sale agreement will be executed in the name of his son, Chandrasekaran. The plaintiff had nothing to do with the suit

property. On receipt of the balance amount of Rs.10,250, the husband of the plaintiff got the signature of the defendant in the sale deed on

11.3.1982 in the name of his wife, Manonmaniammal instead of in the name of his son as agreed upon in respect of eastern 5 cents. After the

registration of the said documents it appears that the husband of the plaintiff had utilised the signature obtained by him for the sale agreement in the

name of Chandrasekaran and forged the suit agreement in the name of the plaintiff. The claim of payment of Rs.4,000 was also denied as false and

the endorsement was also a rank forgery. The defendant would further plead that after the execution of the sale deed dated 11.3.1982 for

Rs.11,000 the defendant had nothing to do either with the plaintiff or the husband of the plaintiff. After the receipt of suit notice, the defendant

threatened the plaintiff''s husband for taking criminal action for the forgery of the alleged agreement and the husband of the plaintiff promised to

drop the proceedings and hence the defendant did not send any reply.

An additional written statement was filed by the defendant contending that the suit property including the house thereon were easily worth

Rs.40,000 on the alleged date of sale agreement and the said fact itself would prove that the defendant could not have agreed for selling the

property to the plaintiff for a sum of Rs.15,750. Therefore, the defendant would reiterate that the plaintiff has created a fraudulant sale agreement

with his signature and the sale agreement in question was a forged and invalid document.

On the basis of the said pleadings and the evidence both oral and documentary, the trial Court disbelieved Ex.A.1 the sale agreement and with

the result the suit was dismissed. However, on appeal, the lower appellate Court did not agree with the findings of the trial Court. The lower

appellate Court held that the suit agreement was proved and that the plaintiff had also established that she was ready and willing to perform her

part of the contract. With the result, the appeal was allowed and the suit was decreed as prayed for. Hence the present Second Appeal by the

defendant.

At the time of admission only one substantial question of law had been framed. During the hearing of the Second Appeal, the appellant had filed

C.M.P.No.8623 of 1998 for raising four additional grounds of substantial question of law. After the respondent had filed counter and after hearing

both sides by an order dated 10.12.1998 the said petition was allowed permitting two additional substantial questions of law to be raised. With the

result, the following three substantial questions of law arises for consideration:-

(1) Whether the lower appellate Court overlooked the legal position that the non-examination of the plaintiff is fatal in a case of specific

performance when the plaintiff alone has to plead and to prove that she was ready and willing to perform her part of the contract H.G. Krishna

Reddy and Co. Vs. M.M. Thimmaiah and Another, .

(2) Whether the finding of the lower appellate Court that Ex.A.1 is true, is based on no evidence at all.

(3) Whether the lower appellate Court was correct in law in granting specific performance when he comes to a Court with a false case.

Though three different questions have been framed as substantial questions of law, basically there is only one issue which is the central point for

all the three questions. The only issue which ultimately arises for consideration is the truth or otherwise of the suit agreement, namely Ex.A.1. The

case of the appellant/defendant is that his signature had been obtained in blank papers in connection with the prior understanding between the

parties in having agreed to sell another property which is adjacent to the suit property and that the plaintiff had misused those papers and had

manipulated those papers for the purpose of the present suit. Therefore, this Court has to see as to whether the document has been properly

proved and whether both sides have established their mutual claims.

7 a. On the issue pertaining to the non-examination of the plaintiff as a witness in terms of Section 16(c) of the Specific Relief Act (hereinafter

called"" the Act"") learned counsel for the appellant relies heavily at least on two judgments of this Court. A Division Bench of this Court in the

judgment reported in H.G. Krishna Reddy and Co. Vs. M.M. Thimmaiah and Another, , held that the failure on the part of the plaintiff agreement

holder to have examined himself as a witness and to have subjected himself to cross-examination would be hit by the mandatory requirement u/s

16(c) of the Act to prove the readiness and willingness on the part of the plaintiff. Reliance is also placed on another judgment of another Division

Bench of this Court reported in S.K.M. Mohammed Amanulla v. T.C.S. Ramansangu Pandian and others, 1993 (I) M.L.J. 464 in support of his

contention that in the absence of proper explanation for non-examination of the plaintiff as a witness, the Court was entitled to draw adverse

inference.

Learned counsel for the appellant would also point out that while the trial Court had elaborately considered this issue and has recorded a finding

that there was no proper pleading or proof in terms of Section 16(c) of the Act, the appellate Court had not properly considered the said issue. It

is true that the appellate Court had dealt with the issue of readiness and willingness in paragraph 12 of its judgments which is a short paragraph of

three Sentences in which there is no discussion at all and there is absolutely no reference to the non-examination of the plaintiff, much less any

explanation for the non-examination of the plaintiff.

Mr.V. Shanmugham, learned counsel for the respondent would however submit that P.W.1 is none other than the husband of the plaintiff and

would therefore be a competent witness in the place of his wife and that Section 16(c) by itself did not require that the plaintiff alone was

competent to speak about the readiness and willingness.

It is true that the rulings relied upon by learned counsel for the appellant hold that the failure to examine the plaintiff would amount to non-

compliance of the requirements u/s 16(c) of the Act. But such observations are not to be understood as if the failure of the plaintiff himself or

herself to get into the box would be fatal to a suit for specific performance. In fact an analysis of the judgment reported in Mohammed Amanullah

v. Ramasangu Pandian, 1993 (I) M.L.J. 464 would show that it was open to the parties to adduce proper reasons for the non-examination of the

plaintiff, but on the facts and circumstances of the particular case no reasons have been adduced and hence adverse inference was drawn against

the plaintiff. It is also needless to point out that in our society husband and wife share a fiduciary relationship and even now all transactions on

behalf of womenfolk in a family are carried on only by the menfolk, especially the husband in the case of wife. But it is also equally true that the

relationship of husband and wife is not to be treated as an exception to the mandatory requirement u/s 16(c) of the Act. It would be open to and

also the duty of the plaintiff to plead and prove the reasons for the non-examination of the plaintiffs. In this background a perusal of the judgment of

the trial Court and the appellate Court shows that the appellate Court had not at all considered this issue. In view of my ultimate decision to remit

this appeal to the appellate Court for various reasons, I wish to say nothing further on this issue as to whether the plaintiff or her husband had

properly explained the reasons for non-examination of the plaintiff.

As regards proof of Ex.A.1, the signature is admitted by the plaintiffs, but the contents are denied. On this issue, it is further contended by

learned counsel for the respondent that the defendant had put forward inconsistent pleas. According to him in the original written statement the

defendant had pleaded that Ex.A.1 was a rank forgery. But in the additional written statement and in the oral evidence the defendant had given a

go- by to the original pleadings and had contended that his (defendant) signature had been obtained in blank papers and that the text of the

document had been manipulated and that the plaintiffs had created fraudulant sale agreement by using his signature. On an analysis of the pleadings

and the evidence both oral and documentary, I am unable to agree with the contention of the learned counsel for the respondent. The pleadings

have to be read in its entirety. In the original written statement itself after stating in paragraph No.2 that the suit agreement was rank forgery, in

paragraph No.3 the defendant had stated in detail the circumstances under which his signature had been obtained in blank papers and that it

appeared to the defendant that the plaintiff had utilised his signature. The endorsement was also pleaded to be false and a rank forgery. In the

additional written statement also after stating that the value of the property was Rs. 40,000 and that therefore, the defendant could not have agreed

for selling it for a price of Rs.15,750, the defendant would further plead that the plaintiff has created the fraudulant sale agreement with his

signature. Therefore, I do not find any inconsistency in the pleadings of the defendant. For the same reason there is no need to further dilate upon

this issue as raised by learned counsel for the respondent to the effect that the appellate Court was justified in comparing the signature of the

defendant in Ex.A.1 with other admitted signatures.

In this background, learned counsel for the appellant relies on a judgment of a Division Bench of this Court in N. Ethirajulu Naidu Vs. K.R.

Chinnikrishnan Chettiar, . The Division Bench has held that execution of a document implies intelligent and conscious appreciation of the contents

thereof, where the defendant admitted only that he had put his signature only on a blank piece of paper which according to him had possibly been

utilised for fabricating the document, the onus of proving due execution must be thrown on the plaintiff. Reference was also made to a judgment of

the Supreme Court in Dattatraya Vs. Rangnath Gopalrao Kawathekar (Dead) by his legal representatives and Others, holding that if the person

signing the document pleads ignorance then in certain circumstances it may be necessary for the party seeking to prove the document to satisfy the

Court that the executant had knowledge of its contents. Per contra, learned counsel for the respondent relies on the observation of the Supreme

Court in the very same judgment which is to the effect that a party seeking to prove the execution of a document was not required to prove that the

executant knew the contents thereof when the executant denies having signed it and pleads that it is a forgery. Therefore, having regard to the

nature of the dispute, this issue naturally leads to the discussion of the evidence pertaining to the very execution of Ex.A.1. According to learned

counsel for the appellant, in contrast to the judgment of the trial Court which had the advantage of watching the quality and demeanour of the

witnesses and the detailed discussion by the trial Court, the appellate Court had failed to consider the evidence in proper perspective.

Only two witnesses have been examined by the plaintiff and P.W.1 who is the husband of the plaintiff, is not a witness to the document, P.W.2

is an attesting witness and one Abbas who is alleged to be the scribe of the document has not been examined. P.W.2 is none other than an

employee of P.W.1 and therefore, his evidence requires careful scrutiny. As the learned counsel for the appellant had rightly pointed out certain

glaring and vital contradiction between the evidence of P.W.1 and P.W.2 had not at all been noted or referred to by the appellate Court.

According to P.W.1 he was not present when the document was written and signed by the parties. In this context he would state as follows:

The evidence of P.W.2 is rather contrary to such evidence. This is what P.W.2 has to say on the execution of Ex.A.1.

The lower appellate Court has failed to notice or much less referred to the following features, which arise for consideration out of the evidence

of P.Ws.l and 2 regarding the actual execution of Ex.A.1.

(a) According to P.W.1 he was not present when the document was either written or signed but P.W.2 would say that the document was executed

in the presence of P. W.1.

(b) According to P.W.1 the document ""might have been"" written at the residence of the scribe. P.W.2 would say that the document was executed

at the office of the plaintiff at Kalavasal.

(c) P.W.1 would state that Ex.A.1 was not attested by the witnesses when he saw the document and later he had sent it to P.W.2 for signing the

document as a witness. Therefore, it is irresistible to conclude that on the admitted evidence of P.W.1, P.W.2 had not signed the document as a

witness simultaneously when the document was alleged to have been executed by the defendant and that P.W.2''s signature was obtained much

later on the directions of P.W.1.

I wish to say nothing further on this aspect lest it should prejudice the case of either parties before the appellate Court which has to go into the

merits of the case again. Suffice it to say that these vital contradictions pointed out above had not at all been noticed by the appellate Court.

When I had indicated my inclination to remit the appeal for reconsideration, Mr.V. Shanmugam learned counsel for the respondent would

contend very vehemently that this Court while exercising its jurisdiction u/s 100 C.P.C. will not interfere with pure findings of fact, by substituting its

own assessment of the evidence. He would also refer to various rulings on this issue to support his contention that the High Court ought not to

interfere with the findings of fact, even if the conclusions of the appellate Court were not palatable to the High Court. Reference was made to the

oft-quoted judgment of the Supreme Court in R. Ramachandran Ayyar Vs. Ramalingam Chettiar, holding that the High Court cannot interfere with

the conclusions of fact recorded by the appellate Court, however, erroneous the said conclusions may appear to be to the High Court. Reliance

was also placed on the observations of the Supreme Court in the following judgments:-

In the judgment reported in AIR 1981 707 (SC) , it was held that the High Court had exceeded its jurisdiction in reversing the concurrent findings

of the fact. The observations contained in the judgment reported in Dudh Nath Pandey (Dead) by Lrs Vs. Suresh Chandra Bhattasali (Dead) by

Lrs, to the effect that the High Court had made a fresh appraisal of evidence and had come to a different conclusion contrary to the findings of the

first appellate Court and that the High Court cannot do so in its exercise of its power u/s 100 C.P.C., were also sought to be relied upon.

In the judgment reported in P. Velayudhan v. K.I. Moidu, 1990 S.C.C. 9 the Supreme Court held that the High Court ought not to have

reappraised the evidence and interfered with the findings of facts arrived at by the first appellate Court.

In the judgment reported in Dr. Ranbir Singh Vs. Asharfi Lal, the Supreme Court held that the High Court was not justified in reappreciating

the evidence and substituting its own conclusions recorded by the Courts of fact without formulating any substantial question of law.

High Court''s interference in the Second Appeal with concurrent findings of fact of the trial Court and the appellate Court on the ground of

probability was also held to be unjustified by the Supreme Court in its judgment reported in Ramanuja Naidu Vs. V. Kanniah Naidu and anothers,

.

In the Judgment reported in Navaneethammal Vs. Arjuna Chetty, the Supreme Court held that interference with the concurrent findings of the

fact of the Courts below must be avoided unless warranted by compelling reasons and that the High Court was not expected to reappreciate the

evidence just to replace the findings of the lower appellate Court. Even assuming that another point of view was possible on the appreciation of the

same evidence, that should not have been done by the High Court.

On the basis of the above mentioned judgments, learned counsel for the respondent would contend that the points on which submissions have

been made on behalf of the appellant, was purely within the domain of the factual findings and hence cannot be entertained.

The scope of interference of findings of fact in a Second Appeal and the rulings on the said issue are as old as the CPC and in the words of the

Supreme Court in R. Ramachandran Ayyar Vs. Ramalingam Chettiar, it is an old familiar question. The jurisdiction of the High Court u/s 100

C.P.C. is very peculiar. It is neither as wide as u/s 96 (Appeals) nor as restricted as u/s 115 C.P.C. (Revision). The term ""question of law"" and

substantial question of law"" as occurring in Section 100 C.P.C. both prior to and after 1976 Amendment has always been understood and

interpreted as to include questions of fact as concluded by the Courts below which would be vitiated if based on no evidence or on perverted

appreciation of evidence resulting in conclusions which could not have been arrived at by any reasonable person or by completely ignoring the

material evidence on record. The bulk of the Second Appeal litigants, belong to the middle class and poor sections of the society and it has to be

borne in mind that a Second Appeal for all practical purposes would be the final stage of the litigation and interference by or even admission of any

appeal by the Supreme Court as against the judgments of the High Court, is conceivable only in a very few cases. As such the Supreme Court as

well as the various High Courts have always been alive to the situation that in the interest of justice it would be necessary not to ignore improper

appreciation of evidence or to turn a blind eye to glaring mis-reading of the evidence by the Subordinate Courts. In fact in the very judgments

relied upon by learned counsel for the respondent such as reported in R. Ramachandran Ayyar Vs. Ramalingam Chettiar, and Navaneethammal

Vs. Arjuna Chetty, it has been held that if a finding of fact had been recorded by the appellate Court without any evidence then such a finding can

be successfully challenged in Second Appeal and if there were circumstances of compelling reasons warranting such interference. Therefore, the

fact remains that a question of fact is not a taboo for Section 100, C.P.C. It is also well settled that an appellate Court cannot interfere and set

aside the findings of the trial Court which had the advantage of watching the demeanour of the witnesses, unless there are very strong and

compelling reasons to reverse the judgment.

In the present case as I had already pointed out the only issue which arises for consideration is the truth of the execution of Ex.A.1 agreement

and that there is absolutely no reference in the judgment of the appellate Court to the evidence of the parties pertaining to the execution of the

document, nor about the vital contradictions as between the evidence of P.W.1 and P.W.2. In a suit which seeks to deprive a person of his rights

over his property merely on the basis of an agreement, even if the said agreement had been proved, the law requires (Section 20 of the Specific

Relief Act) the Courts to be ""guided by judicial principles and capable of corrections by a Court of appeal"". When the appellate Court had failed

to consider vital aspects of the evidence even as regards the proof of the execution of the agreement, this Court has to step in to correct the error.

In the background of these facts, perusal of the following judgments rendered by the Supreme Court reveal that there is no justification to

construe Section 100 in a very narrow and restricted sense and the recent trend has been in favour of keeping an open eye as against the glaring

misreading, misquoting or failure to consider crucial evidence. These judgments will also show that the Supreme Court had not only upheld the

interference by the High Court against the findings rendered by the first appellate Court, but also as against the concurrent findings of fact by both

the lower Courts on several grounds.

In Sonawati and Others Vs. Sri Ram and Another, the Supreme Court held that in cases where the appellate Court had arrived at its

conclusions by ignoring important evidence on record such findings are not binding in the Second Appeal.

In Ram Dayal v. Ganga Prasad Singh, 1969 (I) S.C.W.R. 1069 it was held by the Supreme Court that though ordinarily the High Court will

not interfere with concurrent findings of the fact, where the High Court had held that the decision of the Courts below were passed on fabricated

document, the High Court was justified in interfering with the findings of fact in the Second Appeal.

In the judgment reported in Radha Nath Seal (dead) by his legal representatives Vs. Haripada Jana and Others, , it was held that on proved

and admitted facts it was open to the High Courts to interfere with the contrary findings of the Courts below.

In Madan Lal Vs. Mst. Gopi and Another, , it was held by the Supreme Court that though whether a person was in a fit state of mind to

execute the adoption was a question of fact, yet where both the Courts below had ignored the weight of preponderating circumstances and

allowed their judgments to be influenced by inconsequential matters, the High Court was justified in reappreciating the evidence and in coming to its

own independent conclusions.

In Surain Singh (Dead) by Lrs. and Others Vs. Mehenga (Dead) by Lrs., , the Supreme Court held that when both the Courts below had

recorded diverse findings and where the material evidence and the relevant circumstances had not been adverted to by the appellate Court, the

High Court was justified in interfering with the finding of fact.

In Kochukakkada Aboobacker (Dead) by L.Rs. and others Vs. Attah Kasim and others, the Supreme Court held that where the trial Court

and the first appellate Court did not consider the relevant documents in a proper perspective, the High Court was entitled to reconsider the

evidence. In D.S. Thimmappa Vs. Siddaramakka, , it was held that where the first appellate Court failed to draw the proper inference from proved

facts and to apply law in proper perspective, the High Court in Second Appeal was justified in drawing proper inference from such proved facts

and that such interference by the High Court was proper.

In the Judgment in Sitaramacharya (dead) through L.Rs. Vs. Gururajacharya (dead) through L.Rs., , the Supreme Court held that in a case

where the trial Court relied on certain admission made by the respondent in certain earlier proceedings, but the appellate Court had taken the view

that the admissions were made under compelling circumstances, it was held that the High Court ought to have interfered with the findings of the

appellate Court that the High Court erred in dismissing the Second Appeal holding that the findings of the appellate Court were findings of fact.

In Major Singh Vs. Rattan Singh (Dead) by LRs. and others, the Supreme Court dealing with a case as to whether a Will was validly executed

and the trial Court and the first appellate Court had concurrently found that the Will was not validly executed and the High Court on evidence held

that the rejection of the evidence of the attestators was not correct, the Supreme Court held that the High Court was justified in interfering with the

concurrent findings.

In the Judgment reported in Mehurnnisa v. Visham Kumari, AIR 1998 S.C. 427 the Supreme Court dealt with an issue of bona fide

requirement of the landlady starting a clothing business and held that the lower appellate Court while reversing the judgment of the trial Court failed

to give due importance to certain facts, it was held that the interference by the High Court was justified.

In the Judgment of this Court reported in Muthu Goundar Vs. Poosari @ Palaniappan and 4 others, , P. Sathasivam, J. held that if the finding

of the lower appellate Court was based on surmises, the same can be interfered with.

In the judgment reported in Rahamathulla Shuthari (a) Peer Hazarath v. The Muslim Jamath of Eachampatti Etc. & others, 1998 (I) L.W 413,

S.S. Subramani, J. held that failure of the lower Courts to consider the materials of evidence on record, would entitle the High Court u/s 103 to

consider the evidence and to come to a different conclusion.

In the judgment reported in Rajammal and 3 others Vs. Ramasami and 3 others, K. Sampath, J. held that in a case of the genuineness of a will

where the appellate Court had ignored the weight of circumstances and allowed its judgment to be influenced by inconsequential matters, it was

held that the High Court was entitled to interfere with u/s 100 C.P.C.

Therefore, on a consideration of the settled proposition of law as regards the scope of interference of the findings of facts recorded by

appellate Court and having regard to the error committed by the appellate Court in failing to consider the circumstances under which Ex.A.1 came

to be executed, the findings of the appellate Court cannot be sustained. Therefore, I am inclined to hold that the appeal requires to be remanded to

the lower appellate Court for reconsideration on the merits of the appeal especially in the context as to whether the requirements u/s 16(c) of the

Act had been fulfilled or not in the context of failure to examine the plaintiff as a witness and as to whether the plaintiff has properly established the

truth and of the execution of Ex.A.l. The lower appellate Court is directed to dispose of the appeal within two months from the date of receipt of a

copy of Judgment alongwith the records.

In the result, the Second Appeal is allowed and the judgment and decree of the lower appellate Court are set aside and the matter is remanded

to the lower appellate Court for fresh disposal as indicated above. No costs.