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1992 DIGILAW 264 (MAD)

S. Annamalai v. Dr. E. Soundar

1992-06-19

BELLIE

body1992
Judgment :- The Judgment was delivered by : In this second appeal by the defendant the only point argued was that Ex. A.-3 sale deed is forgery. The trial Court held that it was forgery but the appellate Court dissented from that and held that it is genuine and true document. The sale deed came to be executed in the following circumstances. One Anthoni Devasagayam executed an Othi deed Ex. A-1 dated 21-6-1986 in favour of one Lakshmiammal for a sum of Rupees 3, 000/- Lakshmiammal assigned the Othi to one Valliammal on 19-3-1973 and Valliammal assigned it to the defendant under Ex. A-2 on 7-4-1974. 2. According to the plaintiff he purchased the property for Rs. 10, 000/- under Ex. A3 dated 21-12-83 from Devasagayam. The plaintiff wrote to the defendant offering to pay the Othi amount and redeem the suit property but the defendant evaded. The plaintiff filed a petition in O.P. No. 71 of 1984 under S. 83 of the Transfer of Property Act for depositing the othi amount into Court and deposited the sum of Rs. 3, 000/- on 25-4-1984, but the defendant disputed the sale in favour of the plaintiff and hence the petition was dismissed. On these grounds the plaintiff has filed the suit for redemption of the mortgage and also for mesne profits from 25-4-1984. 3. As against these the defendant would contend that Anthoni Devasagayam as soon as he executed the mortgage deed in favour of Lakshmiammal on 21-6-1966, left for Singapore and he never returned to India and he died there itself without leaving any heir. He further contended that the alleged sale deed Ex. A3 in favour of the plaintiff is false and fabricated document and therefore the plaintiff has no right to redeem the mortgage under Ex. A3 sale deed and the suit is liable to be dismissed. 4. The trial Court on consideration of the evidence dismissed the suit holding that Ex. A3 is a forgery. But in appeal the appellate Court disagreed with the said finding of the trial Court and instead held that Ex. A-3 is a true and genuine sale deed. It therefore set aside the judgement of the trial Court and decreed the suit as prayed for. It relegated the enquiry as regards mesne profits under O. 20, R. 12, C.P.C. to a separate proceedings. Hence the second appeal by the defendant. 5. A-3 is a true and genuine sale deed. It therefore set aside the judgement of the trial Court and decreed the suit as prayed for. It relegated the enquiry as regards mesne profits under O. 20, R. 12, C.P.C. to a separate proceedings. Hence the second appeal by the defendant. 5. As said above, the main question that was raised for consideration is whether Ex. A3 sale deed is a forged document as contended by the defendant. First of all the appellate Court has on reappraisal of the evidence held that Ex. A3 is a genuine and true document and it is a finding of fact and therefore unless the finding is perverse or there are any other strong circumstances that warrant interference with the said finding this Court will not disturb it. 6. On a perusal of the evidence and the circumstances in the case it appears to me that there is absolutely nothing on the basis of which the finding of the first appellate Court can be said to be erroneous. The defendant as D.W. 1 has stated that he only suspected that Ex. A3 could have been forged. Therefore it is not the definite case of the defendant that the document is a forged one. According to the defendant Anthoni Devasagayam went to Singapore and he never returned to India and he died there. As regards this there is absolutely no evidence. It appears true that Anthoni Devasagayam went to Singapore but the further case of the defendant that he never returned to India and he died there is without any basis. The defendant as D.W. 1 has even stated that he did not know Devasagayam nor does he know anything about his relations. D.W. 2 Subramaniam has stated that after execution of the mortgage deed in favour of Lakshmiammal, Devasagayam left for Singapore and he was not in his house in India in 1985. But in the cross-examination he would admit that he does not know about when Devasagayam left for Singapore and he only heard from the villagers that Devasagayam left for Singapore. He has also stated that he does not know anything about the relations of Devasagayam. He then admitted that the defendant is a distant relation of his (D.W. 2). But in the cross-examination he would admit that he does not know about when Devasagayam left for Singapore and he only heard from the villagers that Devasagayam left for Singapore. He has also stated that he does not know anything about the relations of Devasagayam. He then admitted that the defendant is a distant relation of his (D.W. 2). Apart from this no other witness has been examined as regards the case of the defendant that Devasagayam never returned from Singapore and he died there. As against this, besides the plaintiff, P. W. 2 Philip has testified that before 1966 he had been to Singapore, and he saw him (Devasagayam) in India in 1976 and 1983, and in 1985 some days before he died he used to come to his house in Palayamkottai. He has further deposed that Devasagayam has executed Ex. A-3 sale deed in favour of the plaintiff and he (P.W. 2) has attested it as a witness; he saw Anthoni Devasagayam sign the document and the signature in Ex. A3 is that of Devasagayam. This witness is, as pointed out by the first appellate court, a responsible person being a Junior Engineer in Kattabomman Transport Corporation. It must be borne in mind that Ex. A3 is a registered document. The plaintiff has also filed Ex. A-1 death Register Extract issued by Palayamkottai Municipality. As per this Anthoni Devasagayam died on 2-8-1985 at No. 18, Sivan East Car Street, according to this document Devasagayam was in India and at the time of Ex. A3 document he was alive. This belies the contention of the defendant that Devasagayam never returned to India from Singapore and he died there. However, it is argued that in the Written Statement itself the defendant contended that Devasagayam never returned from Singapore and he died there but the plaintiffs have not filed any reply statement to that and this would show that Ex. A4 could have been fabricated. There is absolutely no substance in this contention. Law does not require the plaintiff to file a reply statement and it is quite natural that the plaintiff could have thought that he could as well examine Devasagayam himself as a witness instead of filing a reply statement denying the contention of the defendant that he was not in India and he died in Singapore. There is absolutely no reason as to why Ex. There is absolutely no reason as to why Ex. A-4 an official document should not be believed as true. When the owner of the property was alive, it is unimaginable that anyone would venture to create a document forging his signature to claim that he is the owner of the property and to redeem the mortgage from another person assignee mortgagee. The trial Court has compared the signature of Anthoni Devasagayam in Ex. A1 with the signature in Ex. A-3 and found that there were some variations and according to the appellate Court also there are some variations. I too found it to be correct, but as rightly stated by the appellate Court these variations may be due to the long passage of time between Ex. A1 dated 21-6-1966 and Ex. A-3 dated 21-12-1983. It was also argued that Ex. A3 does not contain the thumb impression of Anthoni Devasagayam, but it is the clear evidence of D.W. 3 Sub Registrar examined by the defendant himself that it is not a hard and fast rule that Thumb impression of the executant of the document must be obtained in the document. 7. On consideration of all these facts and circumstances, I am clearly of the view that the first appellate Court has rightly held that Ex. A3 is a true and genuine document. Thus I find no merit in the Second Appeal. Accordingly it is dismissed with costs. Appeal dismissed.