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2001 DIGILAW 1146 (MAD)

K. Rani v. Poorani Ammal (died) and others

2001-09-28

K.P.SIVASUBRAMANIAM

body2001
JUDGMENT: This second appeal is directed against the judgment of the II Additional District Judge, Pondicherry, in A.S.No.103 of 1987 reversing that of the II Additional District Munsif, Pondicherry, in O.S.No.1397 of 1986. The plaintiff is the appellant in the above second appeal. 2. The above second appeal was dismissed by this Court on 31.8.1999. However, on appeal by the respondents herein in civil appeal by the respondents herein Civil Appeal No.4376 of 2000, the Supreme Court remitted the appeal on the ground that no question of law had been framed as required under Sec.100, C.P.C. 3. The suit was filed by the plaintiff for specific performance of the agreement for sale deed 22.7.1985 by executing a sale deed in favour of the plaintiff and in the event of the defendants failing to do so the Court may direct execution of the sale deed. According to the plaintiff, defendants 1 and 2 entered into an agreement with the plaintiff undertaking to sell the suit property. It was agreed that the property shall be sold for a consideration of Rs.8,001. The defendant had also received a sum of Rs.7,000 as advance in terms of the agreement dated 22.7.1985. The defendant had agreed to execute a sale deed within one month after getting permission from the competent authority under the Pondicherry Urban Land (Ceiling and Regulation) Act, 1976 and after receiving the balance of sale consideration the defendant had also handed over all the original title deeds. Subsequently, the plaintiff had also obtained permission from the competent authority as per letter dated 8.10.1985 and thereafter he had approached the defendants on several occasions calling upon them to execute the sale deed by accepting the balance sale consideration. But in spite of such repeated demands the defendants failed to comply with the demands. By a lawyer’s notice dated 26.10.1985 the defendants were called upon to execute the sale deed on 1.11.1985 at 10.00 a.m. at the Sub-Registrar’s Office at Reddiarpalayam, Pondicherry. Though on that date, the plaintiff waited for the defendants, they did no turn up. A reply notice was received from the defendants dated 31.10.1985 contending false allegations. Hence, the suit. 4. In the written statement filed by the first defendant it was contended that she never entered into the alleged agreement on 22.7.1985. Though on that date, the plaintiff waited for the defendants, they did no turn up. A reply notice was received from the defendants dated 31.10.1985 contending false allegations. Hence, the suit. 4. In the written statement filed by the first defendant it was contended that she never entered into the alleged agreement on 22.7.1985. She also expressed surprise as to how the second defendant being her own husband could be a party to the agreement since the suit property was the absolute property of the first defendant and in her possession. The true facts according to the defendants, are that the first defendant had borrowed a sum of Rs.7,000 from the plaintiff and her husband and in consideration of the same, she had deposited the title deeds as a security for repayment of money, within a period of two years. The parties are closely related and the first defendant and her husband/ second defendant, were not in good terms for a long time. Taking advantage of the said circumstances, the plaintiff had obtained first defendant’s thumb impression on several papers purporting to create equitable mortgage. Therefore, according to the first defendant, the plaintiff appears to have made use of such papers for the purpose of creating documents in his favour. In her reply dated 31.10.1985 the plaintiff was called upon to furnish a copy of the agreement. But the plaintiff had not furnished the same. The first defendant did not also apply for any permission from the Authorised Officer under the Urban Land Ceiling Act for permission. The plaintiff appears to have gained advantage due to the first defendant’s illiteracy and the document was not belonging on her and she never intended to apply for any permission to sell the property to the plaintiff. 5. The trial Court on consideration of the said pleadings and the evidence held that the plaintiff had proved the suit agreement. It was further held that the first defendant did not succeed in establishing any fraud on the part of the plaintiff. Hence, the suit was decreed. However, on appeal by the first respondent, the Appellate Court held that the agreement was not valid in law and as a result, the appeal was allowed and the suit was dismissed. Hence, the present second appeal. 6. Hence, the suit was decreed. However, on appeal by the first respondent, the Appellate Court held that the agreement was not valid in law and as a result, the appeal was allowed and the suit was dismissed. Hence, the present second appeal. 6. At the time of admission of the second appeal the following substantial questions of law have been raised: (1) Whether the Court below was right in totally disregarding the evidence of P.W.3, an advocate and notary and Exs.X-1 to X-5 which are genuine and reliable and vital in decision the case? (2) Whether the Court below was right in holding that the default clauses contained in Ex.A-1 agreement of sale are penal in nature and hence the same was not unexecutable in a Court of law? 7. Learned counsel for the appellant contends that there was no evidence to sustain the plea of fraudulent misuse of the signature of the first defendant. The first defendant who had alleged fraud had not chosen to get into the witness box. It was only a power of attorney who had deposed on the side of the defendant. It is further contended that the first defendant had not disputed the thumb impression in the document. Therefore, the reasonings of the appellate Court in reversing the judgment of the trial Court were unsatisfactory. Learned counsel for the appellant also commented on the observations of the appellate Court that the suit property being the only property of the first defendant, the plaintiff has not satisfactorily explained as to why the first defendant wanted to dispose of the property. The appellate Judge has also made certain observations without any legal basis such as that it was common ground that women would seldom like to sell away their property. Though the defendants have raised a plea of an equitable mortgage by deposit of title deeds, there was absolutely no proof of the same. The further finding of learned appellate Judge that the agreement was penal in nature and the same was illegal. 8. Though the defendants have raised a plea of an equitable mortgage by deposit of title deeds, there was absolutely no proof of the same. The further finding of learned appellate Judge that the agreement was penal in nature and the same was illegal. 8. Learned counsel also contended that since the documents filed on the side of the plaintiff had not been considered by the appellant, it was a fit case for allowing the second appeal under Sec.100, C.P.C. In this context, learned counsel refers to the judgment of a learned single Judge of this Court in Narayanaswamy v. Raman, (2000)1 L.W. 853 , holding that omission to consider the material documents and evidence would be a valid ground for interference in the second appeal. Merely because the findings are concurrent, the second appellate Court was not helpless when it was demonstrated that both the Courts have failed to consider the material portions of the evidence. 9. Reference is also made to the judgment of the Supreme Court in Ishwar Dass Jain v. Sohan Lal, (2000)1 L.W. 425. It was held that interference under Sec.100, C.P.C. was possible when material or relevant evidence was not considered which could have led to an opposite conclusion and where the lower appellate Court had arrived at by placing reliance on inadmissible evidence. 10. Learned counsel for the respondents however, submits that the evidence clearly establishes collusion between the plaintiff and the second defendant. The first defendant was an illiterate woman and reliance was being placed on the thumb impression obtained in blank papers. The trial Court had wrongly cast the burden of proof on the defendant ignoring the well accepted principle of non-est factum. Admittedly, the first defendant was an illiterate woman and therefore, the said principle was attracted. Learned counsel relies on the following judgments in support of his contention that in cases where the principle of non-est factum could be invoked, the burden was on the party who would like to sustain the document: (i) Mt.Farid-un-Nisa v. Mukhtar Ahmad, 49 M.L.J. 258: A.I.R.1925 P.C. 204. (ii) Ramanamma v. Viranna, 61 M.L.J. 194: A.I.R. 1931 P.C. 100. (iii) Kwamin Bassayin v. Bendentu II, A.I.R. 1937 P.C. 274. (iv) Bank of Khulna v. Jyoti Prakash: A.I.R. 1940 P.C. 147. (v) Chandhala Bewa v. Madhab Panda, A.I.R. 1961 Ori. 100. (vi) M.S.T.Kharbuja Kuer v. Jangbahadur Rai, (1963)1 S.C.R. 456 . (ii) Ramanamma v. Viranna, 61 M.L.J. 194: A.I.R. 1931 P.C. 100. (iii) Kwamin Bassayin v. Bendentu II, A.I.R. 1937 P.C. 274. (iv) Bank of Khulna v. Jyoti Prakash: A.I.R. 1940 P.C. 147. (v) Chandhala Bewa v. Madhab Panda, A.I.R. 1961 Ori. 100. (vi) M.S.T.Kharbuja Kuer v. Jangbahadur Rai, (1963)1 S.C.R. 456 . (vii) Satyadeo Prasad v. Smt.Chanderjoti, A.I.R. 1966 Pat. 110. (viii) Chameli Debi v. Purusattam Singh, A.I.R.1974 Cal. 316. (ix) Minor Palanivelu v. Sadasive Padayachai (Died), (2000)2 C.T.C. 486. 11. Learned counsel further contends that there was nothing wrong in the appellate Court having relied on the evidence of the Power of Attorney. Such evidence was perfectly admissible. Learned counsel relies on the judgment of the learned single Judge of Gujarat High Court in Divaliben v. Mavjibhai Vasanjibhai Ahir, A.I.R. 1995 Guj. 151. In that case the learned Judge had held that a power of attorney can be examined as a witness in any proceeding since he was given the power to act on behalf of the principal which would also include all acts including giving evidence in a proceeding. 12. Learned counsel further contends that Sec.23 of the Specific Relief Act would be a bar for granting the decree in view of the penal provision in the agreement. The fact that the documents were with the particular would only indicate that it was a case of mortgage by deposit of title deeds and not a case of agreement for sale. 13. He would further submit that the first defendant was an old and illiterate person who died three years later. The circumstances would disclose that she was under the impression that only a mortgage was being created. The only witness for the document was the husband of the plaintiff, second defendant. The scribe was not examined. There is also no recital in the document to the effect that the contends of the document were read over and explained to the first defendant. Therefore, the plaintiff has to be held as having failed to discharge the onus. 14. The only witness for the document was the husband of the plaintiff, second defendant. The scribe was not examined. There is also no recital in the document to the effect that the contends of the document were read over and explained to the first defendant. Therefore, the plaintiff has to be held as having failed to discharge the onus. 14. Learned counsel further submits that the appellant had not made out a proper case for intervention under Sec.100, C.P.C. In this context learned counsel relies on the judgment of the Supreme Court in Pandurang Jivaji Apte v. Ramachandra Gangadhar Ashtekar, (1981)4 S.C.C. 569 holding that the failure to examine a party in evidence could lead to adverse inference against the said party, only in the absence of any other evidence on record. Where admission of parties and other materials were available on record, no presumption can be raised against the persons only due to failure to appear before the Court. It was further held that concurrent findings of both the Courts below in such circumstances cannot be set aside by the second appellate Court. 15. I have considered the submissions of both sides. On a detailed analysis of the evidence I am inclined to hold that the plaintiff’s case of the defendant having executed an agreement of sale is clearly established for reasons stated below. The subsequent conduct of the plaintiff also establishes that both parties have entered into an agreement dated 22.7.1985 only for sale of the properties. The plaintiff had approached the competent authority under the Land Ceiling Act and had obtained permission on 8.10.1985 (Ex.A-2) which was followed by a lawyer’s notice dated 26.10.1985 calling upon the defendants to execute the sale deed on 1.11.1985. As against the said circumstances though the first defendant had pleaded that tile deeds were entrusted with the plaintiff only pursuant to a mortgage by deposit of title deeds, there is no convincing evidence to establish that the transactions between both parties were only in the context of a mortgage. The evidence of the Notary Public (P.W.3) is an independent evidence, which clearly establishes the fact of the first defendant having put her thumb impression on Ex.X-37 the application to be presented to the competent authority, which has been marked as a Court exhibit. 16. The evidence of the Notary Public (P.W.3) is an independent evidence, which clearly establishes the fact of the first defendant having put her thumb impression on Ex.X-37 the application to be presented to the competent authority, which has been marked as a Court exhibit. 16. The main attempt on the part of learned counsel for the respondents in defending a case in which the thumb impression was admitted is that the executant was an illiterate woman and therefore, principles relating to non-est factum were attracted. Learned counsel for the respondents very vehemently contends that the trial Court had ignored that in such cases, the burden of proof was on the party who wants to establish the document. As stated earlier, learned counsel has relied on several judgments in the said context. It is no doubt true that in cases where the document is either by an illiterate person or a pardanaship, the burden of proof would be on the party who wants to establish the truth of the document. In fact one of the judgments rendered by me in Minor Palanivelu v. Sadasiva Padayachi (Died), (2000)2 C.T.C. 486. It was a case of execution of the sale deeds by illiterate woman who had deposed that her mind did not accompany her signature and that she thought that she was executing a mortgage deed and the sale consideration was also found to be low, I have held that the burden was heavier on the person who wants to establish validity of document. 17. But the primary circumstance which has to be borne in mind is that in the present case, notwithstanding the fact that the first respondent was very much alive during the trial of the suit, she did not choose to get into the box and speak about the fraud which is alleged to have been committed on her. No explanation is offered as to her non-examination. It is true that the burden of proof of the validity of the document is on the plaintiff where the principles of non-est factum are invoked. But it is equally important to bear in mind that there has to be a pleading by the executant and evidence to the effect that he or she was misled and cheated. It is true that the burden of proof of the validity of the document is on the plaintiff where the principles of non-est factum are invoked. But it is equally important to bear in mind that there has to be a pleading by the executant and evidence to the effect that he or she was misled and cheated. Under normal circumstances when once the signature or thumb impression is admitted and the same party wants to dispute the truth of the document, the initial burden is on the said party. It is the normal rule of burden of proof. The principle of non-est factum is no doubt recognised as an exception but before invoking the said principle the basic requirement is that the person pleading non-est factum must prove that he or she is entitled to invoke the said defence. A proper pleading and evidence is necessary by the executant himself. It is for the executant to plead and prove that he or she was misled and cheated. That is the minimum requirement before the principle can be invoked. In fact I have examined this issue in detail, in Ramu Asari v. Thirumurthy and others, (2000)1 L.W. 748 and held as follows: "17. A party of full age and understanding is normally bound by his signature to a document. He cannot be heard to say that he did not read it or understand it. However, when he pleads that he had been misled into executing the document, the burden to prove the said allegation is squarely on him. To this burden of proving, the principle of non-est factum is recognised as an exception and if the executant to whom the principles could apply, pleads that he was misled into the executing the document, then the burden is immediately thrown on the party who wants to sustain the document. But before this shifting of the burden, what is essential himself that he was misled, cheated or duped. When there is no such pleading by the executant himself, it is not for a third party to say that the executant was misled, cheated or duped. If the law is otherwise, it would lead to disastrous results and consequences. But before this shifting of the burden, what is essential himself that he was misled, cheated or duped. When there is no such pleading by the executant himself, it is not for a third party to say that the executant was misled, cheated or duped. If the law is otherwise, it would lead to disastrous results and consequences. Population of our womenfolk and illiteracy would account for more than 70 to 75 per cent of the total population and the principle of non-est factum would prove to be a ‘manthra’ or magical formula to throw overboard all solemn documents and agreements. 18. Being misled or duped or cheated or singing a document without knowing its contents, is a state of mind of the executant and it is only the executant who is competent to say so. To permit other persons to question the documents after the executant was dead and gone would result in chaotic results. In Saunders v. Anglia Building Society, 1971 A.C. 1004, the House of Lords had laid down several preconditions and emphasised extreme caution in applying the plea of non-est factum." 18. Therefore, it would be unsafe to permit parties to raise the defence of non-est factum if the concerned person himself does not plead and prove the said contention. As stated earlier in the present case, the first defendant was very much alive when the trial was conducted and there is no reason why she did not render evidence. The said circumstance goes very much against the first defendant. When the first defendant had admitted her thumb impression, the burden is very heavy on her to first establish that she did not know the contents of the documents. When she fails to discharge the said initial burden and avoids the witness box and cross-examination I am inclined to hold that she cannot be heard to raise the plea of non-est factum. Even the plaint does not contain proper allegations relating to the alleged fraud and the same coupled with the circumstance of non-examination of the defendant, is a circumstance which would heavily go against the first defendant. The plea of non-est factum is a defence which can be invoked only in rare cases and when the party pleading the said defence avoids the witness-box, the said defence cannot be permitted to be raised. In fact her conduct would only result in raising an adverse inference. The plea of non-est factum is a defence which can be invoked only in rare cases and when the party pleading the said defence avoids the witness-box, the said defence cannot be permitted to be raised. In fact her conduct would only result in raising an adverse inference. The only evidence on the side of the defendant is that of the power of attorney and the only documentary evidence is the Power of Attorney. 19. It is true that it is competent for a power of attorney to adduce evidence on behalf of principal. On the sole ground that the witness happens to be a power of attorney the evidence of the power of attorney cannot be rejected. But in a case where non-est factum is pleaded, it is for the executant to depose that her mind did not go along with her signature or thumb impression. It is only in those circumstances I am inclined to accept the contention of learned counsel for the appellant that the evidence of power of attorney cannot be accepted. The power of attorney cannot depose about what passed in first defendant’s mind at the time of execution of the document. 20. I have also independently considered the evidence in the context of the allegation that the first defendant was under the impression that the document was only a deed of mortgage for deposit of title deeds. In the absence of any positive evidence on the side of the first defendant, I am unable to sustain the findings of the appellate Court to the contra. A perusal of the judgment of the trial Court shows that the trial Court had considered the pleadings and the evidence in detail. I am therefore, inclined to hold that the findings to the contra by the lower appellate Court is based on no evidence and also vitiated by perversity in not considering that the essential requirement of the first defendant examining herself in evidence has not been complied with. 21. The objections relating to Sec.100, C.P.C. as raised by learned counsel for the respondents is also liable to be rejected in view of the above findings. 22. The further finding by the appellate Court that in view of the penal clauses, the agreement has to be held as illegal, is also not sustainable. 21. The objections relating to Sec.100, C.P.C. as raised by learned counsel for the respondents is also liable to be rejected in view of the above findings. 22. The further finding by the appellate Court that in view of the penal clauses, the agreement has to be held as illegal, is also not sustainable. The said view of the learned appellate Judge does not correctly appreciate Sec.23 of the Specific Relief Act which holds that a contract in which a sum is named as the amount to be paid in case of its breach and the party in default was also willing to pay the same, if the Court having regard to the terms of the contract was satisfied that the amount was named only for the purpose of securing the contract, the Court would give effect to the agreement and enforce the same. Therefore, I am unable to sustain the said finding of the appellate Court in the said context. 23. It is further seen that one of the requirements is that necessary permission from the competent authority under the Ceiling Act should be obtained which has also been complied with by the plaintiff. Therefore, apart from the documentary evidence, the other attendant circumstantial evidence also clearly probabilities the case of the plaintiff and disproves the case of the defendant that the transaction was only for a mortgage. In the absence of any positive evidence by the first defendant, and the thumb impression in the document being admitted, I am inclined to hold that the judgment of the appellate Court is liable to be set aside. 24. In the result, the second appeal is allowed and the judgment and decree of the trial Court are restored. No costs.