Vellayyappa Padayachi vs Saminatha Asari and 2 others

The suit is for specific performance filed ''by the first respondent herein against the second respondent on the basis of the agreement dated

14.11.1980 agreeing to sell the suit property, belonging to the first respondent. The second respondent claims to be the prior agreement holder in

whose favour the first respondent executed a sale deed after the suit agreement. The appellant is the third defendant, who had purchased the suit

property, pending suit. The consideration under the agreement dated 14.11.1980 was a sum of Rs.3,200 and Rs.2,000 was paid on that date.

Two weeks later on 28.11.1980 another sum of Rs.1,000 was paid and the balance was only a sum of Rs.200. As per the agreement time was

four months'' for execution of the sale deed. Though the first respondent requested the second respondent to execute the sale deed in the first

week of December the second respondent said that he was pre-occupied with certain duties and promised to execute the sale deed. Subsequently,

he did not comply with the request. The first respondent came to know that the second respondent was trying to fraudulently dispose of the

property by executing the sale deed in favour of the third respondent, and therefore, the first respondent''s son appeared before the Sub-Registrar,

Mangalampettai on the date when the sale-deed was registered in favour of the third respondent. But the Registrar passed the order Ex-A3 that he

had no power to refuse registration and that the first respondent''s remedy was to approach the Court for appropriate relief. Though the first

respondent has always been ready and willing to perform the terms of the agreement the second and third respondent were determined to defeat

his rights and therefore the suit was filed. Pending suit the third respondent sold the property to the appellant who was impleaded as the third

defendant.

The second respondent filed his written statement as follows:

There was no suit notice. The suit agreement is false and it has been concocted by the first respondent with the help of people who are known to

him and that there was enmity between him and the first respondent and therefore, he had created the suit agreement to prevent him from selling the

property to third persons. It was also stated that after the sale deed in favour of the third respondent, the third respondent had sold the property to

one Nataraja Padayachi for a sum of Rs.8,500 and that the said Nataraja Padayachi was a necessary party in the suit.

The third respondent''s written statement was as follows:

There was no suit notice and the third respondent had no notice of the agreement in favour of the first respondent and that the first respondent had

concocted documents to defeat the second respondent''s right and that in any event the property had been sold to one Nataraja Padayachi who is

in possession of the suit property.

The appellant filed his written statement as follows:

He had purchased the suit property bona fide and without notice of any prior agreement and that he did not know anything about the pendency of

the suit and therefore, no relief can be had against him who is a bona fide purchaser for value wiihout notice.

The Trial Court found that the suit agreement was not a genuine document because the handwriting of the second respondent differs very much

from his admitted signature in other documents. The Trial Court also rejected the evidence of P.W.2 and 3 as repetitive and artificial, and found

that the first respondent was neither ready nor willing to perform his part of the agreement. The first respondent went on appeal. The Appellate

Court allowed the appeal and decreed the suit for specific performance. Against that, the third respondent who is the purchaser, has filed the

second appeal.

The question is regarding the genuineness of the signature of the second respondent in the suit agreement. Ex-A1 is the suit agreement dated

14.11.1980. Ex-A2 is the record of payment of Rs.1,000 and endorsed on the suit agreement, dated 28.11.1980. Ex-A3 is the order passed by

the Registrar to the objection raised by the first respondent''s son. Ex-B1 is the sale deed in favour of the third respondent dated 15.12.1980. Ex-

B2 is the agreement that proceeded Ex-B1 dated 1.10.1980. Ex-B3 is the sale deed in favour of the appellant dated 27.5.1981. Ex-B5 is the

partition deed dated 22.2.1973 in the family of the second respondent which was marked for the purpose of comparison of signatures. The Trial

Court has compared the signature with Ex-A1 and Ex-A2 made by the second respondent herein with the signature of the second respondent in

Ex-B5 a partition deed and found that there were apparent dissimilarities and came to the conclusion that Exs-A1 and A2 were forged documents.

The Appellate Court however, found otherwise. This is a pure question of fact. Mr. R. Subramanian, learned counsel for the appellant submitted

that the Appellate Court''s findings are not clear and far from satisfactory. He submitted that there was also no finding regarding readiness and

willingness, which is mandatory in a suit for specific performance. So he submitted that the appeal should be remanded for finding on facts. Mr. S.

V. Jayaraman, learned senior counsel for the first respondent however, submitted that he would be able to show that the Appellate Court''s

judgment could be sustained. But he would however, make a request that instead of remanding the matter this Court could exercise its power u/s

103, C.P.C. and appreciate the evidence. The suit is two decades old, the judgment of the Appellate Court is a little sketchy, therefore, in view of

the above submission, which was agreed to by the learned counsel for the appellant, ""I agreed to consider the oral and documentary evidence on

record.

Now, I have compared the signature made by the second respondent in all the documents that are accepted by him and the alleged signatures in

Exs-A1 and A2. No doubt as pointed out by Mr. S.V. Jayaraman, learned senior counsel for the respondent, even in the accepted signatures

there are many differences. But the signatures in Ex-A1 and A2 an totally different from that in Ex-B5. The reason for this can be either, one, the

person who signed Exs. A1 and A2 is not the second respondent nor was he familiar with the second respondent''s signature and only the name

was written out in Exs-A1 and A2 or two, the second respondent deliberately signed his name in a totally different fashion from his normal

signature to defraud the first respondent. Which of these two is the real reason? Can it be found from the conduct of the parties? If it is more

probable that Ex-A1 came about in the circumstances set out by the first respondent then we have to take it that the second respondent had

deliberately disguised the signature. On the other hand, if the evidence shows that the case of the second respondent that there was no such

agreement is more probable then a stranger has signed Ex-A1, and such an agreement cannot form the basis of the suit for specific performance.

Mr. R. Subramaniam, learned counsel for the appellant pointed out to the following defects in the Appellate Court judgment, that there was no

finding regarding the readiness and the willingness and the disparity in the two signatures i.e., signatures in Exs-A1 sand A2 and the admitted

signature in Ex-B5 is so glaring that specific performance cannot be granted, and that in the Trial Court has given cogent reasons for disbelieving

the plaintiffs witness and the judgment should not have been easily interfered with. The learned counsel also relied on the following judgments to

support his case. Murarilal v. State of M.P.MR 1980 S.C.531 regarding the duty of the Court when it is called upon to compare the disputed

writings with admitted writings. T.K. Manikandan and another v. S. Mohan, 2000 (I) MLJ 70 again on the role of the Court in comparing disputed

signatures. The decision reported in Vasantha and others Vs. M. Senguttuvan, with regard to show that if the ingredients of readiness and

willingness are absent the plaintiff who seeks specific performance will have to be non-suited and admitted signatures and the decision reported in

Indravathi Vs. Kamala, again with regard to the essential ingredients of readiness and willingness.

Mr. S.V. Jayaraman, learned senior counsel for the respondent on the other hand submitted that though the Appellate Court has not dealt with

in detail and recorded its findings regarding the various issues in dispute it is apparent from a reading of the judgment of the Appellate Court that it

had considered the case, from all aspects. The learned Senior counsel submitted that first of all the conduct of the parties has to be seen against the

factual background. When the objection lodged by the first respondent''s son, as seen from Ex-A3 is admitted by the second respondent it would

go a long way to prove the veracity of the first respondent''s case regarding the existence of Exs-A1 and A2. If the agreement itself was false it is

extremely unlikely that the objection in Ex-A3 would have been lodged before the Registrar. Then the learned Senior counsel drew my attention to

the fact that almost the entire sale consideration has been paid except for a sum of Rs.200, which is not even 10% of the sale consideration.

Therefore, the readiness must be deemed to have been proved and as regards willingness the intention of the party to perform is apparent from Ex-

A3 which shows that the party was keen to have the sale completed and was objecting to the action of the second respondent in trying to bring

about another sale of the same property in favour of the third respondent. The learned senior counsel also submitted that much was made by the

Trial Court regarding absence of notice before the suit and that issuance of notice itself would be an exercise in futility, when the first respondent

was aware that the second respondent had already registered a sale deed in favour of the third respondent on 15.12.1980 a month after Ex-A1.

Therefore, a notice would be of no avail and a mere empty formality. As regards the appellant, the learned senior counsel said that he was the

purchaser lis pendens and did not deserve any equitable consideration. The learned senior counsel relied on the judgment reported in Motilal Jain

v. Smt. Ramdasi Devi and others, AIR 2000 SCW 2554 in which the suit agreement was dated 20.2.1977, the performance was to be done on

or before 19.7.1977, notice was issued on 16.11.1978 and suit was filed nine months, thereafter and yet the Supreme Court held that the delay

cannot be invoked to deny relief. In this case the time for performance was 4 months from the date of the agreement, which is 14-11-1980 and the

suit itself was filed on 13-03-1981 (exactly four months after Ex-A1) there cannot be any delay.

With regard to Exs-A1 and A2 this is what P.W.1 has to say. One, that he went with Arumugha Konar, (P.W.3), 4 days before Ex-A1 (i.e.,

on 10.11.1980) to second respondent''s foundry (''Patttarai''); two, Palani Asari, P.W.2 and the third respondent (second defendant) were there;

three, second respondent (first defendant) said that he would come to Ko-poovanur, which is the first respondent''s village on 14.11.1980 to sign

the agreement; four, he had already bought the stamp paper from Mangalampettai; five, the document was written on 14.11.1980. In cross, he has

stated that the stamp paper was purchased on 10.11.1980, that he had given advance on 14.11.1980 that the scribe was one Govindaraju

(P.W.4). He was not cross-examined about Ex-A2, except for a suggestion that the signature there, is not of the second respondent''s.

With regard to Exs-A1 and A2 the evidence of P.W.2 is as follows: He also says that he and the third respondent were in the second

respondent''s ''pattarai'' when the first respondent and Arumugha Konar came there. He speaks of the consideration of a sum of Rs.3,200 and

more importantly he says that the agreement was executed at Puvanur at about 10.00 a.m. on Friday, and that Govindaraju(P.W.4) wrote it, that

Arumugha Konar (P.W.3) and he attested, that a sum of Rs.2,000 was received on that date and that later the first respondent paid a sum of

Rs.1,000. In cross, he states that stamp paper for Ex-Pi was purchased by the first respondent, that he knows where the second respondent''s

''pattarai'' is, that he is aware that 4 months'' time was stipulated for performance, that 15 days after the execution of Ex-A1, a sum of Rs.1,000

was paid. P.W.3 in his evidence states that he went with the first respondent to the ''pattarai'', that Adhimoola Padayachi, the third respondent and

Palani Asari (P.W.2) were there, that a sum of Rs.3,200 was the consideration, that the agreement was written 4 days later in Puvanur by

Govindaraju and that Rs.2,000 was paid on that day. In cross, he states that the first respondent took him to the second respondent''s place on

10.11.1980, P.W.4 is a Karnam and his evidence is that he wrote Ex-A1 in the first respondent''s house, that the consideration was a sum of

Rs.3,200, that both the respondents 2 and 3 and P.Ws.2 and 3 were there at the time of execution, that a sum of Rs.2,000 was paid on that date

and that about 15days later a sum of Rs.1,000 was paid. In cross, he states that he remembers the date of execution of Ex-A1 well, because that

was the last day that he served as Karnam, but that he could not remember the exact date of payment of Rs.1,000 and that he remembered that

the third respondent was present when Ex-A1 was executed. Therefore the evidence -of these 4 witnesses corroborates one another''s on these

particulars, that negotiations for sale were made on 10.11.1980 at the second respondents ''Pattarai'', that the execution of the agreement four

days later was at the first respondents village ''puvanur'', the presence of all the four plaintiff''s witnesses and respondents 2 and 3, the purchase of

stamp paper by the first respondent, the payment of a sum of Rs.2,000 on the date of Ex-A1, the payment of a sum of Rs.1,000 thereafter and the

time set down in the agreement for specific performance. Two other important factors elicited in evidence are that the first respondent, P.W.1 says

that the purchased stamp paper on 10.11.1980. P.W.2 in the chief examination says that the agreement was executed on Friday. A perusal of Ex-

A1 shows that it has been purchased on 10.11.1980. On verification it is found that 14.11.1980 is indeed a Friday. This oral evidence on the side

of the plaintiff is rejected by the Trial Court as parrot-like, artificial and repetitive. One other circumstance which compels the Trial Court to

dismiss the evidence is that it is too much of a coincidence that P.Ws.2 and 4 were present on the date when Ex-A1 was executed and on the date

when Ex-A2 was executed. Even if, for some reason we do not give weight to the evidences'' of P.Ws.2 and 3, P.W.4, the ''Karnam'' also

cogently justifies to the genuineness of Ex-A1 and A2. The statement made by P.W.2 that the agreement was executed on Friday appears natural

and does not look as if it is tutored. On the contrary let us examine the evidence of the defendant''s witnesses with regard to Ex-B1 the sale deed

and Ex-B2, the agreement that preceded it and Ex-B3, the sale deed in favour of the appellant. D.W.1, the second respondent states that he does

not know the Tamil month on which Ex-B2 was executed, that, it was executed in Subramaniyar Koil in front of the Registrar, that he asked for a

loan of Rs.5,000 sometime in 1980 from the third respondent, that though the third respondent had the amount he said he would borrow from

outside and give it and that he voluntarily gave the property to the third respondent, that the third respondent saw the suit property before Ex-B1

was registered, that, when negotiations for Ex-B2 agreement were concluded it was 9.00 or 10.00 a.m., that stamp papers are available in

Ulundurpettai itself, that they took two copies of Ex-B2, that he must search for his copy, that it was 4.00 p.m. when Ex-B2 was completed, that

he does not know who purchased the stamp paper for Ex-B1, that there is no enmity between P.W.3 and him, that he knows P.W.2 and 3, that

there is no enmity between him and P.W.4, that the first respondent''s son objected at the time of registration of Ex-B1, that he denies the

suggestion that he have deliberately signed on Exs-B1 and B2 differently from his usual signature. D.W.2. who is the third respondent has stated

that he purchased the suit property for 3.1.1950 that he gave a sum of Rs.2,150 on the date of Ex-B2 and a sum of Rs.1,000 later, that the

second respondent asked him for a loan of Rs.4,000 to Rs.4,500 in the month of ''Avani'', that he had some money in his hand from groundnut

crop, that he borrowed from Bhima Padayachi (scribe of Exs-B1 and B2), that on 1.10.1980, he gave the land, that when he left his house on that

day he had no intention of entering into an agreement to purchase land, that he went there at 10.00 a.m., that the negotiation was over at 1.00

p.m., that he said he would give the balance of money in 2 to 3 days, that he purchased stamp paper, that the Registrar''s Office is nearby, stamp

paper is available there, that Mangalampettai is 4 miles away, that he went 14 miles to Thiagadurkham to purchase the stamp paper, that he bought

it at 3.00 p.m., that he borrowed a sum of Rs.2,150 from Subramanya Udayar and returned it immediately, that it is possible to go to

Thiagadurkham, that he does not know that the first respondent''s son objected at the time of Ex-B1, that D.W.3 was present at the time of Exs-

B1, B2 and B3, that he had a lot of debts when he sold the property to the appellant under Ex-B3.

D.W.3 has stated as follows: He has attested Ex-82 dated 1.10.1980, Varadarajan is the other witness, Bhima Padayachi is the scribe, that he

has also signed in Ex-B1, Swami Kannu is the other witness in Ex-B1, Ex-B1 is executed in Mangalampettai, that he has signed in Ex-B3, scribe

of Ex-B3 is Radhakrishnan, that he does not remember the month of Ex-82, that he does not know the date of registration of Ex-B1, that when he

was going out to purchase groceries at about 10.00 a.m. third respondent called him to sign the document and therefore he signed, that when he

left the place, after he signed Ex-B2 it must have been 1.00 p.m. that, he does not know who purchased stamp for Ex-B1, and that there was 2 to

3 days gap between Exs-B1 and B2, then, he corrects himself and says 30 to 35 days .

The appellant is D.W.4 and his evidence does not speak of Exs-B1 or B2, but only with regard to Ex-B3 and that he did not see the

encumbrance certificate and that he did not know about the same. On an appreciation of the evidence with regard to the oral evidence on the side

of defendants, it is clear that there are many discrepancies. The possession of sufficient funds by the third respondent on the date of execution of

Ex-B1 itself is in doubt. Prom the evidence it is seen that he was able to purchase only by borrowing money, the evidence also is not corroborative

as regards the time of execution of Ex-B1. D.W.3, has deposed that the execution of Ex-B1 was at 10.00 a.m. whereas according to P.W.2, the

third respondent herein came to the ''pattarai'' and he went with him only at 3.00 p.m. The reason given by him to go to Thiagadurkham, when the

Registrar''s office is nearby is also not acceptable. But apart from all this, the crucial admission made by D.W.3 is with regard to the time gap

between Exs-B1 and B2. He says that there were only 2 to 3 days gap between Exs-B1 and B2.

Ex-B1 is dated 15.12.1980. So if there was only a two days gap, it must have been 12.12 or 13-12. No doubt, he corrects himself and then says

30 to 35 days. Even then the date of agreement Ex-B2, will only be contemporaneous with 10.11.1980, the dale on which as per the plaintiff''s

witnesses a negotiation is completed or the date on which Ex-A1 was signed viz. 14.11.1980. Ex-B2, is supposed to have been signed on

01.10.1980, 75 days before Ex-B2. The evidence of D.W.3 is different. When it is the specific case of the first respondent that Ex-B2 has been

deliberately antedated to defeat the rights of the first respondent the respondents 2 and 3 ought to have satisfied the Court that it was not so. On

the other hand they have virtually admitted that Ex-B2 was subsequent to Ex-A1. The Trial Court finds it extremely suspicious, that P.W.2 and

P.W.4 were both found present at the time of Ex-A1 and A2. But we must remember that D.W.3 has signed Ex-B1 dated 15.12.1980, Ex-B2

which is alleged to have signed on 01.10.1980 and Ex.B3 which has been signed on 27.05.1981 and the same Bhima Padayachi has been the

scribe for Exs-B1 and B2. Therefore, if the presence of the same witnesses at the time of Exs-A1 and A2 should be regarded as suspicious, then

the presence of D.W.3 at the time of execution of three documents, which are separated by time, should have also provoked suspicion. The

purchase of stamp paper from Thiyagadurgham, 14 kms away when stamp papers were available nearby has not been explained. The admission of

D.W.3 regarding the date of execution of Ex-B2 cast a serious doubt on the supposed date of execution of Ex-B2. As rightly pointed out. by the

learned senior counsel for the respondent Ex-A3 is an unimpeachable record signed by the Registering Authority of the presence of the first

respondent''s son at the time of execution of Ex-B1. Anyone who was present at the Registrar''s office on that date could not have forgotten such a

vital and very unusual circumstance of a person objecting to the registration. But here we have the third respondent as D.W.2 saying that he was

not aware that an objection was made to the registration. From this the only conclusion that I can draw is the third respondent was nowhere in the

scene when Ex-B1 was brought about. Ex-B2 has already been found to be ante dated and in view of my finding that the purchaser D.W.2, did

not come to the Registrar''s office on the date of Ex-B1, the only conclusion ia Ex-B1 has been brought out by the second respondent with an

oblique motive. What follows from this is that, with the intention and purpose of defrauding the first respondent, the second respondent while

signing Exs-A1 and A2 had cleverly disguised his signature. He had no intention of selling the property to the first respondent and after receiving

the money from him he had pot up a fraudulent agreement with the third respondent and then pending the suit had also got the third respondent to

execute a sale deed in favour of the appellant. It is evident that the third respondent is the second respondent''s henchman as submitted by the

learned senior counsel for the first respondent. As regards the readiness and willingness the cases relied on by the learned counsel for the appellant

do not support to the appellant''s case. Readiness would indicate the possession of funds or the capacity to generate funds to complete the sale

and willingness would indicate the animus to complete the sale. A person who entered into an agreement without any intention or capacity to

purchase the property would not be entitled to specific performance. That is why Section 16(c) of the Specific Relief Act, 1963 sets out that a

person who fails to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract is

barred from getting any relief. In this case the readiness is demonstrated by the fact that almost the entire sale consideration has been paid except

for a sum of Rs.200 and as regards willingness Ex-A3 shows that the first respondent intended to purchase the property that is why his son has

appeared in the Registrar''s Office to stop the registration of Ex-B1. In fact, as rightly submitted by the learned senior counsel for the first

respondent Ex-A2 is a very valuable piece of evidence to show the existence of Ex-A1. Without having any agreement in his hand it is extremely

unlikely and improbable that a person would go and object to the registration of the sale of a stranger''s properties. Therefore, the pleadings and

evidence on the side of the plaintiff shows that he has averred and proved that he is ready and willing.

The Trial Court''s finding with regard to Ex-A3 is that it is not proved what kind of an objection was raised before the Registrar. A perusal of

Ex-A3 makes it clear that an objection was raised with regard to registration and the Registrar directed the objector to seek relief in the Civil

Court. The second respondent admits that he was present when the objection was wrote. If indeed the objection was made for a different reason,

D.W.1 would have stated so in his evidence. He has not done so which bolsters the case of the first respondent that his son objected to the

registration on the ground that there was a prior agreement. Next the Trial Court has stated that the first respondent has not taken any steps against

respondents 2 and 3 from 15.12.1980 to 13.3.1981. Since the second respondent had already registered Ex- B1 no notice was served by the first

respondent and his only remedy was to file the suit. He has deposed that he had to get ready with the funds necessary for filing the suit on

13.3.1981, i.e., the last date of performance of Ex-A1. By no stretch of imagination can a Court find that there has been a delay on the part of the

first respondent or that by issuing notice some opportunity would have been given to the respondents 2 and 3. When the respondents 2 and 3 had

categorically demonstrated their intention to defeat the first respondent''s right he took the only remedy open to him that is to file a suit and he has

done it with due promptness. The discussion of the Trial Court for rejecting the oral evidence on the side of the plaintiff and the acceptance of the

oral evidence on the side of the defendants has already been discussed. The cogent and corroborative evidence on the plaintiff side was dismissed

as repetitive, artificial and parrot-like whereas the evidence on the side of the defendant which have contradictions have been explained by the Trial

Court as arising out of passage of time. The Trial Court totally failed to consider the involuntary admission of D.W.3 that Exs-B1 and B2 were

separated only by 2 to 3 days. The Trial Court totally ignored the effect of this admission on the genuineness of Ex-B1.

From the discussions-above, it is clear that the agreement Ex-A1 is genuine but the agreement Ex-B2 is not. The obvious difference in the

signatures of the second respondent is because the second respondent has deliberately signed his name differently to defraud the first respondent.

The suggestion made by the first respondent in the cross-examination of D.W.1 that he had deliberately signed his name in Ex-B1 and B2

differently finds support from the evidence produced on the plaintiff''s side and that is the only inference we can draw from the evidence produced

on the respondent''s side. The plaintiff''s witnesses have all spoken to all the factors relating to the execution of Ex-A1. I think that it should not be

disbelieved. The sale deed, Ex-B3 was brought about pending suit and a crucial factor is that in the pleadings the respondents 2 and 3 have

pleaded that the property had been sold to One Nataraja Padayachi. But actually the appellant, who is the purchaser is Vellayyappa Padayachi.

This error reinforce my conclusion that the only intention of the second respondent was determined to nullify the rights created by Ex-A1. No

doubt his father''s name is Nataraja Padayachi. An incorrect averment is made in the second respondent''s written statement and the third

respondent who is the vendor of Ex-B3 and who should know the purchaser''s name also says the same thing.

When the conduct of the parties is viewed as a whole, it is crystal clear that all the defendants have got together to defeat the rights of the

plaintiff, the first respondent herein. The first respondent has done whatever he can, within his power, to obtain relief. In view of my findings

regarding the execution of Ex-A1, the decisions relied on by the counsel have no application.

In the circumstances, the appeal is dismissed with costs. Consequently, C.M.P.No.4956 of 1989 is closed.