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Madhya Pradesh High Court · body

2001 DIGILAW 95 (MP)

Sardar Singh v. Laxman Prasad

2001-01-25

R.B.DIXIT

body2001
Short Note Laxman Prasad-plaintiff-respondent No. 1 had filed a Civil Suit No. 16A/91, in the Court of First Additional Judge to District Judge Vidisha at Basoda for specific performance of the contract on the ground that appellant Defendant No. 1 had entered into a contract dated 17.5.1990 which was duly registered for selling his agricultural land bearing Survey No. 26 situated at village Nabodia, district Vidisha for consideration of Rs. 48,500/- towards which he had received Rs. 33,000/-. On failure to execute the sale-deed the aforesaid suit was tiled for specific performance. Appellant-defendant No. 1 had denied the execution of the aforesaid agreement and also receiving of any advance in pursuant thereunder. It is also averred that the appellant was in close contact of plaintiff and under the garb of confidence he was taking advantage of this delay. The plaintiff also did not take necessary legal steps for execution of sale-deed. Learned trial Court after recording the evidence of the parties, although, found agreement Ex. P-1 duly executed by the appellant, however, in facts and circumstances of the case felt that specific performance in this case is not desirable. Instead, directed refund of the advance money within a period of three months and failure to deposit the amount further awarded interest at the rate of 12% per annum. Learned counsel for the appellant has contended that plaintiff-respondent has failed to prove execution of the agreement as required under section 67 of the Evidence Act. According to the respondent, he being an illiterate person the document was not read over and explained to him and it is further argued that there are material discrepancies in the evidence of the plaintiff and his witnesses regarding payment of earnest money. It is true that plaintiff or his witnesses have not specifically stated in the evidence that the document was read over and explained to the defendant. However, it should not be lost sight of that the document was registered and where a document is duly registered the presumption of its genuineness and due attestation is al ways arises in favour of due execution of the document. It is further to be seen that a document was not 'only proved by the plaintiff Laxman Prasad (PW 1) and one of the attesting witnesses Anwar, (PW 2) but also by the Advocate Ramesh Sharma (PW 3) who had drafted it. It is further to be seen that a document was not 'only proved by the plaintiff Laxman Prasad (PW 1) and one of the attesting witnesses Anwar, (PW 2) but also by the Advocate Ramesh Sharma (PW 3) who had drafted it. The fact that the scribe is a junior advocate to the Advocate appearing for plaintiff is itself no ground to reject his testimony. Similarly where money was directly handed over to the defendant or through a witness is also not a very material regarding payment of amount. In such a situation, when there is no suspicion regarding signature of the defendant on the document particularly when the trial Court itself compared the signature of the document with other signature of the defendant from various papers tiled by him and the statement which was also signed before the Court. Learned counsel for the appellant has referred certain decisions of this Court in case of Dhaniram v. Karan Singh reported in 1985 M.P. Weekly Notes Note 540; Jugala v. Chutta and others (1991 RN 75), Ramjan Khan and others v. Baba Raghunath Das and another (1992 RN 367), and argued that it was the duty of the plaintiff to being referred the document for comparison of signature by hand writing expert. I am of the opinion, that where the plaintiff by examining himself and one of the attesting witnesses together with scribe to prove attestation of the document in such a situation, the onus shifts on the defendant to get his signature on the document examined by the hand writing expert to show that the signatures are forged and false. In a decision of this Court in case of Kishan Prasad v. Madhya Pradesh Government through Collector, Vidisha reported in 1983 JLJ 474 = 1983 MPLJ 355 it has been pointed out that for the purpose of proving signature under section 67 of the Evidence Act, no particular mode has been laid down. Signature can be proved by calling a person who signed or wrote a document, a person in whose presence the document was signed or written, or a person acquainted with the hand writing of the person by whom the document is supposed to be signed or written, or by comparing in Court, the disputed signature or handwriting with some admitted signatures or writing of the defendant. Of course, the signature can be proved also by handwriting expert; that is not always mandatory on the part of the plaintiff to call for hand-writing expert in every case. The attestation of a document was also discussed in case of M.D. Abdul Jabbar Sahib v. H. Venkata Sastri and Sons and others etc. reported in AIR 1969 SC 1147 , wherein it has been made clear that the essential conditions of a valid attestation is to produce two or more witnesses who have seen the executants signed an instrument. In the present case, this condition was duly complied with. In facts and circumstances it is proved that the document Ex. P-1 was duly executed by the defendant in favour of the plaintiff. In so far as cross-objection of the plaintiff-respondent is concerned, it has been sub milled by the learned counsel for the respondent that the trial Court even when not allowing the specific performance of the contract if ordered payment of the earnest money, he should have been allowed interest from the date of execution of the document. I am of the opinion that since the defendant is enjoying the benefit of the money from the date he received it, the interest ought to have been awarded from the date of the execution of the document i.e. from 17.5.1990 to this extent the decree deserves to be modified. For the reasons stated hereinabove, this appeal fails and is dismissed. however, it is ordered that the plaintiff-respondent No. 1 is entitled to interest at the rate of 12% per annum from 17.5.1990 till its realisation on the amount of Rs.33,000/-.