Sukumaran vs Panneerselvam and Ayyasami

G. Rajasuria, J.—Animadverting upon the judgment and decree dated 21.06.2000 passed in A.S. No. 15 of 2000 by the learned Principal

District Judge, Thanjavur, in confirming the judgment and decree dated 08.12.1999 passed in O.S. No. 118 of 1998 by the learned Sub Judge,

Pattukkottai, this second appeal is focussed.

Heard the learned Counsel for the appellant. Despite printing the name of the respondents, no one appeared. It is an old matter. Hence, the

learned Counsel for the appellant proceeded to argue the matter in entirety.

The parties, for convenience sake, are referred to according to their litigative status before the trial Court.

Broadly but briefly, narratively but precisely, the case of the plaintiff as stood exposited from the plaint could be portrayed thus:

Under Ex.A.1, the registered agreement to sell, the first defendant undertook to sell six items of properties set out in the plaint in favour of the

plaintiff for a total sale consideration of Rs. 60,000/-. Out of the same, a sum of Rs. 55,000/- was received by the first defendant from the plaintiff.

Subsequently, the first defendant failed to perform his part of the contract and thereupon, Ex.A.2, the suit notice was issued by the plaintiff which

was not replied by the first defendant. Whereupon, the suit for specific performance was filed by the plaintiff as against the first defendant, in

addition to the second defendant who was also added as one of the defendants on the ground that after the emergence of Ex.A.1, the first

defendant in collusion with the second defendant effected a make-believe sale transaction in favour of the second defendant relating to the fifth item

of the suit properties. Even before the emergence of Ex.A.1, the first defendant alienated the second item in favour of a third party. However, the

plaintiff restricts his prayer for specific performance relating to the remaining five items of properties without praying for proportionate reduction in

the sale consideration as agreed under Ex.A.1.

Denying and disputing, challenging and impugning the allegations/averments in the plaint, the first defendant filed the written statement which was

adopted by the second defendant, with the averments inter alia thus:

Ex.A.1 is not a genuine document. The first defendant did not execute Ex.A.1. The signature found in Ex.A.1 is not his signature. In fact, there was

a loan transaction between the first defendant and the plaintiff whereby the plaintiff lent a sum of Rs. 50,000/-. Subsequently, the first defendant

repaid to the tune of Rs. 7,000/- in the form of paddy and thereafter, he repaid another sum of Rs. 12,000/- to the plaintiff, in partial discharge of

the loan. On receipt of Ex.A.2, the first defendant requested the plaintiff to grant time to repay the remaining part of the loan for which the plaintiff

agreed and granted time also. Even thereafter, the first defendant could not honour his promise in repaying the remaining part of the loan.

Subsequently, the plaintiff misusing the blank stamped papers which were signed by the first defendant at the time of availing the loan, filed this suit

concocting Ex.A.1. Accordingly, the defendants prayed for the dismissal of the suit.

The trial Court framed the relevant issues.

During trial, the plaintiff examined himself as P.W.1 and Exs.A.1 to A.4 were marked. The first defendant examined himself as D.W.1 and

Exs.B.1 was marked.

Ultimately, the trial Court dismissed the prayer for specific performance. However, it decreed the suit to the effect that the first defendant shall

repay a sum of Rs. 38,000/- to the plaintiff with interest, even though the plaintiff has not made any prayer to that effect in the plaint.

Being aggrieved by and dissatisfied with, the judgment and decree of the trial Court, the plaintiff filed A.S. No. 15 of 2000 before the Principal

District Court, which dismissed the appeal.

Challenging the judgments and decrees of both the Courts below, the plaintiff filed this second appeal on various grounds, the gist and kernel of

them, would run thus:

Both the Courts below fell into error in not appreciating Ex.A.1, the registered agreement to sell in proper perspective. The burden of proof was

on the defendants to prove their plea, but they miserably failed to discharge their burden. The Courts below have not taken into consideration the

purport of Section 92 of the Indian Evidence Act, which would clearly contemplate that oral evidence is barred as against the registered document.

The Courts below approached the matter in a tangential manner and dismissed the claim of the plaintiff.

At the time of admitting this second appeal, my learned Predecessor framed the following substantial questions of law:

(i) Whether the Courts below are correct in law in considering the oral evidence contrary to the recitals in Ex.A.1 especially when the lower

appellate Court has found Ex.A.1 as a true document?

(ii) Whether the lower appellate Court in the face of the recitals in Ex.A.1, was correct in coming to the conclusion that it is a loan transaction?

Both the points are taken together for discussion as they are interlinked and interwoven with each other.

Point Nos:(i) and (ii)

At the outset itself, I would like to observe that the judgment of the trial Court is far from satisfactory for the following reasons:

The trial Court simply looked askance at Ex.A.1 as though it is an unregistered document forgetting the presumption as contemplated under the

illustration (e) to Section 114 of the Indian Evidence Act and the relevant portion is extracted hereunder for ready reference:

Section 114. Court may presume existence of certain facts.- The Court may presume the existence of any fact which it thinks likely to have

happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of

the particular case.

...

The Court may presume -

(e) That judicial and official acts have been regularly performed;

At this juncture, my mind is redolent with the decision of the Honourable Apex Court in Pentakota Satyanarayanan and Ors. v. Pentakota

Seetharatnam reported in 2006 2 L.W.658, which emerged relating to the registered will. An excerpt from it, is extracted hereunder:

It is clear from the definition that the attesting witness must state that each of the two witnesses has seen the executor sign or affix his mark to

the instrument or has seen some other persons sign the instrument in the presence and by the direction of the executant. The witness should further

state that each of the attesting witnesses signed the instrument in the presence of the executant. These are the ingredients of attestation and they

have to be proved by the witnesses. The word ''execution'' in Section 68 includes attestation as required by law.

A perusal of Ex.B9(in original) would show that the signatures of the Registering Officer and of the identifying witnesses affixed to the

registration endorsement were in our opinion, sufficient attestation within the meaning of the Act. The endorsement by the sub-registrar that the

executant has acknowledged before him execution did also amount to attestation. In the original document the executants signature was taken by

the sub-registrar. The signature and thumb impression of the identifying witnesses were also taken in the document. After all this, the sub-registrar

signed the deed. Unlike other documents the Will speaks from the death of the testator and so, when it is propounded or produced before a

Court, the testator who has already departed the world cannot say whether it is his Will or not and this aspect naturally introduces an element of

solemnity in the decision of the question as to whether the document propounded is proved to be the last Will and the testament of departed

testator.

It is a trite proposition of law that a will should be proved strictly as per Section 68 of the Indian Evidence Act by examining the attesting

witnesses. Even in such cases, their Lordships of the Honourable Apex Court in the cited decision held that once it is a registered will, the

propounder of the will is relieved of his liability to prove it to some extent in view of the illustration (e) to Section 114 of the Indian Evidence Act.

Whereas here, Ex.A.1 is only an agreement to sell which is a duly registered one.

Forgetting for the moment that at the back of the first sheet of Ex.A.1, the thumb impression of the first defendant is found. If really, the first

defendant''s contention was true that the first defendant was impersonated before the Registrar''s office, he could have taken steps to get Ex.A.1

sent to the expert concerned to verify the thumb impression. It is common knowledge that the defendant could have very easily proved that his

purported thumb impression was a fabricated one if at all, his plea was true and germane.

It cannot be visualised that the burden of proof was on the plaintiff to send the document to the expert so as to prove that the thumb impression

in Ex.A.1 was that of the first defendant, Ex.A.1 is a registered document and over and above that, P.W.2 one of the witnesses to Ex.A.1 was

also examined who clearly deposed that it was he who attested it, after witnessing D.1 signing it. It is not readily known as to how the first

defendant''s signatures in the blank papers could have been converted into Ex.A.1, the registered document without impersonation of the first

defendant. There is no plea of impersonation taken by the defendants. If really, there was any such impersonation, it is not known as to why the

first defendant on receipt of Ex.A.2, did not lodge any complaint with the police.

Hence, it is obvious that the plea of the first defendant is totally untenable and it is turned to be false also in view of the discussions supra. The

first appellate Court correctly appreciated the purport of Ex.A.1, but it fell into error in some other aspects. Once the burden of proof got shifted

from the plaintiff''s side to the defendants'' side as it is well known that the burden of proof is ambulatory, the first defendant should have

discharged his burden, but he failed to do so. Except the ipsi dixit of the first defendant, there is nothing on record to demonstrate that Ex.A.1 is a

concocted document.

The core question arises as to what are all the legal consequences and validity attached to Ex.A.1, the registered agreement to sell. It is quite

obvious that Ex.A.1 is enforceable legally, but the first appellate Court after arriving at the finding that Ex.A.1 was a genuine document, turned

turtle by looking askance at the very nature of the transaction, which was got embodied in Ex.A.1 and that too by referring to some admissions of

P.W.1 relating to earlier transactions which was also one relating to an agreement to sell. No doubt, the earlier agreement to sell was not produced

before the Court by the plaintiff. But, P.W.1 in his deposition would candidly admit that relating to the earlier transaction, there was some delay in

payment, subsequently, that amount was discharged by the first defendant and that transaction was over.

Whereas the defendants would contend that the first defendant is yet to pay a sum of Rs. 38,000/- under that earlier transaction and because

of that alone, this suit emerged. If that be so, the defendants should have sent a reply in response to Ex.A.2 but he did not do so. The pre-suit

notice should be responded properly, but in this case, for reasons best known to the first defendant, there was no response. However, in order to

gloss over his own fault, he dished out a theory as though the plaintiff sought time to discharge the loan. But, there is no evidence in that regard.

It is clear from the statement of the first and second defendants that after the emergence of Ex.A.1, the first defendant sold the item 5 of the suit

property in favour of the second defendant who is admittedly his brother-in-law. The plaintiff is right in contending that the said sale effected by the

first defendant in favour of the second defendant relating to the item 5, should be ignored even though the sale relating to item 2 cannot be ignored

which emerged anterior to Ex.A.1.

Furthermore, the learned Counsel for the plaintiff would fairly submit that the plaintiff is not seeking for reducing proportionately the sale price

concerning the second item of the suit property. The second defendant has not chosen to figure himself as one of the witnesses. It is a trite

proposition of law that the second defendant, the alleged purchaser of the item 5 cannot plead anything apart from the one that he was a bona fide

purchaser for value without notice. In this connection, the decision in Arunachala Thevar and Others Vs. Govindarajan Chettiar and Others, could

fruitfully be referred to, which would highlight as to who could be termed as bona fide purchaser for value without notice of prior agreement to sell.

An excerpt from it, would run thus:

Now we shall find out the legal position with reference to the burden of proof that is expected from either of the parties. Section 19, Clauses (a)

and (b) of the Specific Relief Act, 1963, reads as follows:

Except as otherwise provided by this Chapter, specific performance of a contract may be enforced against-

(a) either party thereto; (b) any other person claiming under him by a title arising subsequently to the contract, except a transferee for value who

has paid his money in good faith and without notice of the original contract....

These clauses of Section 19 of the New Act corresponded to Clauses (a) and (b) of Section 27 of the old Specific Relief Act. On a plain reading

of the above clauses, it appears that Clause (a) only lays down the general principle that it is only a party to the contract who can be sued. In other

words, this clause recognises and follows the general rule that a stranger to the contract is not a proper or necessary party to a suit to enforce it;

but Clause (b) provides exceptions to the general rule, according to which a subsequent purchaser, in order to successfully resist a suit for specific

performance of a prior agreement for sale, must establish that he is a purchaser for value without notice of the general agreement of sale and he

paid the consideration money for the sale before he had notice of the prior agreement. Clause (b) of Section 19 requires four elements to be

proved to successfully claim the benefit of the exception, viz.,

that the transfer is for value;

that the consideration has been paid;

that the subsequent transferee has taken the transfer in good faith; and

that both the purchase and the payment of the consideration had been made without notice of the prior contract. The first two elements are

positive and the rest are negative in character. Clause (b) lays stress upon the payment of money by the transferee in good faith and without notice

of the original contract, and does not go further. It contemplates a transferee who has got a document executed, who had paid the money in good

faith and without notice and who gets the document registered in accordance with law, giving retrospective effect to the transaction from the date

of execution. Thus, where a buyer paid full money before the date of the execution of the deed in good faith and before the receipt of the notice of

the contract of sale from a buyer, he is a transferee in law from the date of execution of the conveyance within the meaning of Section 19(b) of the

Act and the transferee is protected.

Curiously enough the second defendant has not chosen to prove his plea and speak about it by entering into the witness box. Simply because

both the Courts below had some suspicion based on the evidence of P.W.2 that P.W.1 was a money-lender, there is no presumption that Ex.A.1

should be considered only as a security document for a loan transaction.

Merely based on subjective satisfaction and suspicion, a judgment should not be rendered, but it should be based on sound principles of law

and legally admissible evidence.

My discussion supra would highlight as to how oblivious of the provisions of the Indian Evidence Act, the Courts below simply based on some

subjective satisfaction, dismissed the plaintiff''s suit.

Hence, I am of the considered opinion that, the judgments and decrees of both the Courts below are perverse and accordingly, they are liable

to be set aside and the suit has to be decreed for specific performance relating to the items 1, 3, 4, 5, and 6 except item 2. The remaining part of

the sale consideration, if not already deposited, shall be deposited within a period of two months from the date of receipt of a copy of this order.

The substantial question of law No. (i) is decided to the effect that Courts below were not correct in law in considering oral evidence contrary

to the recitals in Ex.A.1 especially when the lower appellate Court has found Ex.A.1 as a true document.

The substantial question of law No. (ii) is decided to the effect that the lower appellate Court in the face of the recitals in Ex.A.1, was not

correct in coming to the conclusion that it is a loan transaction.

In the result, the second appeal is allowed, setting aside the judgments and decrees of both the Courts below and the original suit is decreed

for specific performance relating to all the items of the suit property except item 2. The parties shall bear their costs throughout.