Y.M. Narasimha Murthy vs M. Srivastan and Others

Anand Byrareddy, J.—Heard the learned counsel for the appellant and the learned counsel for the respondents.

The appellant was the plaintiff before the Trial Court and it was the case of the plaintiff that he was the absolute owner in possession and enjoyment of the house property bearing No. 314 at B.B. Road, Yelahanka Town, Bangalore - 560 064. The said property is morefully described in the plaint schedule. According to the plaintiff originally the property belonged to the father of the plaintiff - Muniyappa @ Abbayappa. Muniyappa had three sons viz., Nagaraj, Y.A. Manjunatha and Y.M. Narasimha Murthy viz., the plaintiff herein and daughters by name Nagarathnamma and Rukmini. Both the daughters were married and were living with their husbands. The said Muniyappa, on 6.9.1994 is said to have executed a registered Will and partitioned and bequeathed all the properties in favour of his three sons and his wife. The plaintiff claims that the original Will was with his brother and he only possessed a copy of the same. The plaintiff also states that in the Will two items of the suit schedule property had been bequeathed in his favour and the suit schedule house property is one amongst the properties that fell to his share. The father of the plaintiff is said to have died on 17.12.1995. After the death of the father of the plaintiff, katha was changed in respect of the suit schedule property to the name of the plaintiff by the Commissioner, City Municipality Council, Yelahanka, and the plaintiff was said to be paying taxes in respect of the suit property. After the death of his father the plaintiff having thus inherited the property had continued in possession of the same and was residing therein. In this background the defendants have attempted to criminally trespass into the suit property and sought to dispossess the plaintiff and therefore, the suit was filed.

It is claimed that on 14.11.1998 when the plaintiff was manuring a vegetable parch, in a portion of the suit property, the defendants are said to have tried to dispossess the plaintiff. They had barged into the house and forcibly tried to dispossess the plaintiff by throwing the utensils and household articles out. When the plaintiff and his family had raised a hue and cry neighbours are said to have come to their rescue and prevented the mischief by the defendants and their supporters. The plaintiff is said to have tried to approach the jurisdictional police, but was advised to file a Civil Suit and accordingly the present suit was filed for permanent injunction. The plaintiff had subsequently filed the suit claiming that the suit property was ancestral property of the grand father of the plaintiff viz., Sri Venkata Narasimhaiah of Yelahanka and after his death the plaintiffs father Muniyappa @ Abbayyapppa had succeeded to the property, thereafter had executed the registered Will dated 6.7.1994 as aforesaid. The plaintiff had married in the year 1985. He had a son who was aged about 17 years as on the date of filing of the suit and accordingly, the plaintiff, his son and his wife had equal share in the property and therefore executed the general power of attorney in respect of the suit property. The plaintiff claimed that the defendant having set up claim in the written statement that the plaintiff had executed a General Power of Attorney on 17.4.1998 in favour of the 1st defendant and on the basis of the same the 1st defendant having sold the site bearing No. 345/314 (Old No. 314/3) measuring East to West 50 feet and North South - 20 feet, with an A.C.C. sheet roofed structure measuring 10 x 10 ft. thereon and on the basis of the General Power of Attorney the 1st defendant having sold the property to one M. Nagaraj, the 2nd defendant, under a registered sale deed dated 15.7.1998 and thereafter claiming possession of the suit property on the basis of the said sale deed was not tenable as the said document was executed under suspicious circumstances was sought to be negated as being forged and fabricated. Therefore had also sought for declaration to the effect that the general power of attorney dated 17.4.1998 and the registered sale deed dated 15.7.1998 executed by the 1st defendant in favour of the 2nd defendant pursuant thereto as being null and void and not binding on the plaintiff.

Defendant No. 2 having entered appearance on service of summons, contended that the plaintiff had not approached the Court with clean hands on account of suppression of facts as is evident from the circumstance that there was an earlier suit filed by the plaintiff which was dismissed on 25.3.1999 against which an appeal was preferred in RFA No. 326/1999 before the High Court of Karnataka and the appeal having been allowed, the matter was remitted for a fresh consideration with a direction to frame issues and also to record evidence and dispose of the matter, by an order dated 16.01.2002. Accordingly the matter was before the Trial Court. The defendant further claimed the father of the plaintiff was the owner of the suit property and he had executed a Will dated 6.7.1994 and the said Will was a registered document. The suit ''A'' schedule property was given to Nagaraj and ''C'' schedule properties were bequeathed to the plaintiff and ''B'' schedule property was bequeathed to Ashwathamma, who is the wife of late Muniyappa @ Abbayappa, who was none other than the mother of the plaintiff. The father of the plaintiff having died on 17.12.1995 the plaintiff was said to have inherited ''C'' schedule properties by virtue of the Will and Item No. 1 of ''C'' schedule property was the subject matter of the suit. The plaintiff had sold the property apparently for his family and legal necessities and had executed the General Power of Attorney in favour of the 1st defendant on the basis of which the sale deed was executed in favour of the 2nd defendant and the entire sale consideration of Rs. 1,68,000/- was paid to the plaintiff and plaintiff had acknowledged receipt of the said amount on the date of the registered sale deed. The possession of the suit schedule property was handed over to the 2nd defendant and thus the 2nd defendant had become the absolute owner in possession of the suit property. The suit property was assigned a new No. 345/314 and a compound wall was said to have been put up by the 2nd defendant and that he had been in possession from the date of sale deed. The revenue records were transferred in the name of the 2nd defendant and therefore the suit was misconceived and in this manner the plaint allegations were refuted. On the basis of the pleadings, the Court below had framed the following issues:--

"1. Whether the plaintiff proves that suit property is ancestral property and he is in possession of suit schedule property?

Whether the plaintiff proves that the General Power of Attorney dated 17.04.1998 alleged to have been executed by defendant No. 1 in favour of defendant No. 2 is forged, concocted and fabricated, is null and void and not binding on plaintiff?

Whether plaintiff further proves alleged obstruction?

What order or relief?"

The issues were answered in the negative by the Trial Court and the suit was dismissed. It is that which is challenged in the present appeal.

The learned counsel for the appellant has argued at length. As regards the veracity and authenticity of a primary document produced by the defendant viz., Ex. D.1-sale deed, executed by defendant No. 1 in favour of defendant No. 2 and Ex. D2 the General Power of Attorney said to have been executed by the plaintiff in favour of the 1st defendant, on the basis of which, the sale deed has been executed and particularly, sought to contend with regard to the suspicion that arises from a plain examination of the documents. It is pointed out that Ex. D1 is ridden with the following infirmities. At page one of the document in describing the plaintiff, it is apparent that there is interpolation of the contents therein, which is highly suspicious. This coupled with the circumstance that the sale deed recites that the sale consideration having been received by the plaintiff on the registration of the document, however, the sale deed is executed not by the plaintiff but by his power of attorney. Therefore when he was very much present on the date of registration, it is noted that the agent is shown to have executed the document, though the principal was very much present and having received the consideration amount on the date of registration of the document. The document is said to have been executed on 15.7.1998 but registered on 7.10.1998. This again indicates that all was not well in the sequence of events and there is apparent suppression of material facts in the manner in which the sale deed has come into existence.

Further insofar as the general power of attorney is concerned it was vehemently contended that the general power of attorney is also a bogus document as could be seen from a plain examination of the same. It was contended that the General Power of Attorney is shown to be accommodated on the very first page and the notary had not put his round seal as required under Rule 12 of the Notaries Rules 1956 and further the said Rules prescribed the duties of a notary in attesting the general power of attorney as it requires him to assign a number, apart from entering the name and address of the general power of attorney. He is also required to assign a number which ought to be reflected on the very document itself and this is not forthcoming. Further the power of attorney itself contains a column for the person to identify the executant and it is seen that there is none who has identified the executant. It is also urged that the signature of the executant is placed in such a manner and it is evident that the signature was made even before the document was drafted which is evident from the manner in which the typed letters and the signature are shown to be positioned and hence there is a serious doubt of the genuineness of the document.

The learned counsel for the appellant has placed reliance on the following decisions:

"a. O. Bharatan Vs. K. Sudhakaran and another, AIR 1996 SC 1140 : (1996) 2 JT 384 : (1996) 1 SCALE 688 : (1996) 2 SCC 704 : (1996) 1 UJ 307

b. Jugraj Singh and Another Vs. Jaswant Singh and Others, AIR 1967 P&H 345 : (1967) 2 ILR (P&H) 402 : Jugraj Singh and Another Vs. Jaswant Singh and Others, AIR 1967 P&H 345 : (1967) 2 ILR (P&H) 402

c. T.L. Nagendra Babu Vs. Manohar Rao Pawar, (2005) ILR (Kar) 884 : (2005) 1 KCCR 447

d. Prataprai Trumbaklal Mehta Vs. Jayant Nemchand Shah and Another, AIR 1992 Bom 149 : (1991) 4 BomCR 89

e. Renuprova Paul Vs. Sannyasi Charan Ghosh and Others, AIR 2005 Cal 118 : (2004) 4 CHN 78 ."

The learned counsel for the respondents on the other hand, seeks to sustain the judgment and has placed reliance on the following decisions:

"a. Mohanshet Purushottam Gujar Vs. Jayashri Vasantrao Mahagaonkar, AIR 1979 Bom 202 ."

Of these decisions the learned counsel for the appellant would place reliance on the observations made by the Court in the case of Prataprai Trumbaklal Mehta Vs. Jayant Nemchand Shah and Another, AIR 1992 Bom 149 : (1991) 4 BomCR 89 , particularly the observations of the Court in paragraph 10 of the said judgment wherein in it is held that ''.....a notary is normally a responsible member of the legal profession and he is expected to take due care to satisfy himself about the identity of the party appearing before him. If the party appearing before the notary is not known to the notary, the notary must get the party identified by an Advocate known to him and take signature of both of them in token thereof Notarised copies of power of attorney and other documents are filed with Banks, Courts and other public institutions. If the documents are marked as true copy by the notary without taking due care and even making any entry in the notary register and without taking signature of an advocate identifying the executant or without taking other reasonable precaution, it cannot be said that the notary is discharging his duty in accordance with law as expected of him. "Good faith" implies due care and caution." Therefore the learned counsel would submit that in the present case on hand, the executant had not identified any person and hence this lacunae would certainly make the document highly suspect and would hence contend that the power of attorney was obviously a bogus document and would have no relevance when it is seen in the background that the plaintiff did not have an absolute right to convey the property. The plaintiff, the owner, who had an equal right along with the defendants, since it was their ancestral property, which no doubt had been bequeathed by the father of the plaintiff while effecting partition, the properties inherited by him equally as between his sons and daughters therefore, it was ancestral property, inherited by the plaintiff in which his son had an equal right and was not enabled to convey the entire extent of the property, if the documents at Exs. D1 and D2 are negated, the suit would have to be decreed in favour of the plaintiff and sale deed set up by the defendant No. 2 had to be negated, whereas the Court below has overlooked these glaring circumstances in dismissing the suit. The learned counsel would also draw attention to many other judgments cited supra, to highlight that the manner in which the power of attorney could be authenticated is not complied with in the present case on hand. Therefore, the power of attorney if negated the sale deed executed by the father of the plaintiff would not have significance and would naturally fall to the ground and hence seeks that the judgment be set aside and the suit be decreed.

One other ground urged by the learned counsel for the appellant is that the seriously disputed signature appearing on Ex. D2 namely the power of attorney and this would require the document to be referred to an expert. As the trial Court took upon itself the task of comparing the said disputed signature with the alleged admitted signature of the plaintiff and has concluded that there was no suspicion about the genuineness of the signature found on Ex. D2, the same is illegal. In this regard he would place reliance on the decision in O. Bharatan Vs. K. Sudhakaran and another, AIR 1996 SC 1140 : (1996) 2 JT 384 : (1996) 1 SCALE 688 : (1996) 2 SCC 704 : (1996) 1 UJ 307 , wherein the Supreme Court has held that the Court could not take upon itself the comparison of the disputed signatures without the aid of an expert who was conversant with the disputed signatures and that such an exercise was not in conformity with the spirit of Section 73 of the Indian Evidence Act, 1872, and this has been emphasized by the Supreme Court in the decision of Fakhrudhin v. State of Madhya Pradesh, 1967 SC 1326.

The learned counsel for the appellant has even produced photographs which are taken two days prior to the hearing, to contend that it is evident that the plaintiff was in possession of the suit property. This by itself would not indicate that it is the plaintiffs property. The persons seen in the photographs cannot be identified. The photographs do not however indicate any house number or property number. The learned counsel would insist that even if this Court were to appoint a Court Commissioner to visit the suit property it would be evident that the plaintiff and his children are in possession of the property and the plaintiff is also present in the Court. Therefore seeks to substantiate his case.

On the other hand, the learned counsel for the respondent would seek to justify the judgment of the Trial Court and would submit that the grounds raised in the present appeal, are contentions urged before this Court for the first time. The Court having dismissed the suit on evaluating the evidence cannot be interfered with. He would point out insofar as Ex. D.2 is concerned, the contention that the document does not bear the round seal is incorrect. As seen from a plain examination of the original document, the round seal is found at two places on the document. The contention that the executant must be identified by a person before the document is notarized, is not with reference to any particular Rule. There is no such rule which requires the executant of the power of attorney to be identified. However, it is the discretion of the notary to call upon the executant to identify the person, if he has any doubt as to the identity of the person. Otherwise there is no rule which requires such identification. No suspicion arises as regards the signature of the executant is concerned.

It is pointed out that the Court having compared the signature with the admitted signature of the executant and having concluded that there is no suspicion as regards the genuineness of the same, is in order. The counsel would submit that Section 85 of the Evidence Act, 1872 would presume that the general power of attorney duly attested and authenticated by a notary is a document so executed and authenticated.

Insofar as the contention that the Trial Court was not competent to compare the disputed signature with the original signature is concerned, reliance being placed on the decision of the Supreme Court in the case of O. Bharathan''s case is not tenable. That was a case where the dispute had arisen out of an election petition and the trial court had compared and examined over 100 signatures which were disputed and had proceeded to pronounce that they were genuine and not suspicious. It is in this context it was held that the Trial Court ought not to embark on such an exercise, without the assistance of an expert, that ruling, therefore, cannot be applied to the facts of the case on hand. Except the plaintiff contending that the signature was in variance with the admitted signature there was no other suspicious circumstance and the Court in the absence of an application having exercised its discretion and proceeded to compare the signatures, there is no bar to such an exercise by the trial Court. In this regard reliance is placed on the decision AIR 1980 SC 531 the Court has held thus:

"That the court should not venture to compare writings itself, as it would thereby assume to itself the role of an expert is entirely without force. Section 73 of the Evidence Act expressly enables the Court to compare disputed writings with admitted or proved writings to ascertain whether a writing is that of the person by whom it purports to have been written. If it is hazardous to do so, as sometimes said, we are afraid it is one of the hazards to which judge and litigant must expose themselves whenever it becomes necessary. There may be cases where both sides call experts and the voices of science are heard. There may be cases where neither side calls an expert, being ill able to afford him. In all such cases, it becomes the plain duty of the Court to compare the writings and come to its own conclusion. The duty cannot be avoided by recourse to the statement that the court is no expert. Where there are expert opinions, they will aid the Court. Where there is none, the Court will have to seek guidance from some authoritative textbook and the Court''s own experience and knowledge. But discharge it must, its plain duty, with or without expert, with or without other evidence. We may mention that Shashi Kumar V. Subodh Kumar and Fakhruddin v. State of Madhya Pradesh were cases where the Court itself compared the writings."

Hence the learned counsel would submit that it has to be kept in view that there could be no hard and fast rule of comparison of the disputed and admitted signatures and it would be dependent on the facts of each case as to the suspicion raised. In the case on hand, there was no request by either party to subject the disputed signature for examination. That the Court had not committed an error in not seeking the opinion of an expert.

The learned counsel would further contend that insofar as the contention that the genuineness of the sale deed could also be tested with reference to the contents that though the sale deed recites that the plaintiff had received the entire consideration at the time of registration of the sale deed, it is clear that when the principal was present and could very well have executed the deed would indicate that the recital is in consonance with the circumstances urged and therefore is suspicious, is also explained by the fact that the sale deed is executed on 15.7.1998 and it is registered on 17.10.1998. Therefore, the execution of the sale deed having taken place on 15.7.1998 and registration having been postponed by several months was only on account of the fact that the sale consideration was not readily available and the document is actually registered on 17.10.1998 when the purchaser was ready with the money and has been handed over to the plaintiff and the sale deed having been executed much earlier does not make it a bogus document, but is sufficiently explained and therefore, would contend that there is no substance in the argument of the counsel.

Insofar as his further contention raised in the last minute, while closing his argument that he is in possession of the suit property, as evidenced by the photographs produced, would not establish the case of the plaintiff that he is in possession, as the plaintiff is not seen in any of the photographs and the property which is said to be the suit property in the photograph does not bear the property number in the photograph to associate it with the suit property and the further plea of the counsel for the appointment of Court Commissioner, at this stage, is an exercise, which is not warranted in an appeal against a judgment decided with reference to material documents and oral evidence of the parties and hence the title having been established, it cannot be denied that the defendant No. 2 was the registered owner of the suit property and hence there could be no injunction against the owner of the property. It is only if the sale deed could be dislodged, that the plaintiff could claim any right and hence seeks dismissal of the appeal.

In the light of the above contentions and material placed on record, insofar as the challenge to documents at Exs. D1 and D2, particularly Ex. D2 which is the general power of attorney on the basis of which Ex. D1 has been executed, there is no substance in the contention that the document is not authenticated by a notary in accordance with law. The contention that the document does not bear the round seal of the notary is found to be incorrect. The further contention that the executant has not been identified also is not a requirement of law. The decision of the Bombay High Court was with reference to a situation where the notary had certified a copy of the original as a true copy of the original and the Court had found, since it was evident on an examination of the original that he could not have authenticated the document, as a certified copy of the original. This is not the situation in the present case on hand. There is no rule which requires that the executant of a power of attorney has to be identified by another person. As rightly pointed out that Section 85 of the Indian Evidence Act, 1872, raises a presumption in favour of the execution of a general power of attorney as being authenticated and if the person challenging the same desires to dislodge such evidence the burden is on him. The contention of the appellant that the maintenance of a register by a notary and the requirement of entering the necessary particulars as documents notarized by him not having been complied with, was a circumstance to be established. The notary ought to have been summoned and it was to be established that he had failed, to comply with the mandatory form prescribed in the Rules in seeking to question the authenticity of Ex. D2.

The further contention that the matter contained in Ex. D2 is sought to be compressed into one page and the signature placed at the foot of the matter appears to have been contrived is not a submission readily acceptable. Therefore the doubt sought to be raised over the authenticity of Ex. D2 cannot be readily accepted.

The decisions cited above are not applicable to the present facts of the case on hand. Hence the same, neither supports the case of the plaintiff or the further contention that the Court was not competent to compare the disputed signature with the admitted signature. In the light of the observation made by Supreme Court in O. Bharathan''s case is also not applicable for the reason, that in an Election Petition where the standard of proof is of a high degree, comparison of several hundred signatures by the Court of the first instance, which ought not to have been carried out by the Court is in order. Therefore, the Supreme Court having held that such an exercise was bad in law is certainly in favour of the respondent. The further opinion expressed in Murarilal''s Case by the Supreme Court would clearly indicate that the Court should not exercise its discretion in pronouncing its opinion in the facts of the case, to establish that when there is no demand by the plaintiff for examination of the disputed signature by an expert and hence there is no infirmity in the findings of the Court as to the genuineness of documents Ex. D1 and D2.

Insofar as Ex. D1 is concerned, again the suspicion sought to be raised is not forthcoming. In the typed matter on the first page of the document which is prepared just prior to registration, the numbers having been filled up by a different machine, would not raise a presumption that there is an interpolation of the matter, this is not the case. It does not give rise to any serious suspicion as there are no material deviations, which in fact are in consonance with the actual particulars. Hence there is no suspicion as to the hand writing. Insofar as the further contention that when the principal was present at the time of registration but the document has been executed by the agent, is again not tenable, for the reason the document is executed on 15.7.1998 and the registration was done on 17.10.1998 in the presence of the plaintiff. He having received the amount at this stage would stand. The contention that in terms of Section 58 of the Registration Act, 1908, it requires the Sub-Registrar''s endorsement if the sale consideration, if any, is paid by the purchaser to the vendor and it should be certified. And that in the absence of the same, the present document at Ex. D1 is of no assistance. And the further contention that there was no consideration paid under the sale deed is concerned, even on that count sale deed should fail. Therefore, the sale deed is established as a sham document. However this procedural requirement not being followed by the Sub-Registrar, by itself would not render the transaction as being bad. Such a claim may be raised in an appropriate suit and hence, would not arise in the present appeal as no such contention was raised during course of the proceedings. Hence such a contention does not warrant this Court to delve into the significance or insignificance of the same.

Therefore, if defendant No. 2 would have to be considered as the owner of the property by virtue of sale deed - Ex. D1, it cannot be said that plaintiff would be entitled to any relief of claiming protection of his right or cancellation of documents at Exs. D1 and D2. Consequently the appeal fails and is dismissed.