Research › Search › Judgment

Madhya Pradesh High Court · body

2004 DIGILAW 23 (MP)

Mahendra Kumar v. Amar Singh

2004-01-12

A.K.SHRIVASTAVA

body2004
Judgment ( 1. ) FEELING aggrieved by the judgment and decree dated 28-7-1993 passed by IInd Additional District Judge, Begumganj in Civil Suit No. 5-A/88 whereby the suit of specific performance of the contract filed by the plaintiff has been dismissed, the plaintiff has come up in appeal. ( 2. ) IN brief, the suit of plaintiff is that Late Ram Sharan Singh whose heirs arc the defendants entered into an agreement with the plaintiff on 22-4-1981 to sell the land in question for a consideration of Rs. 42,000/- and obtained Rs. 29,000/- as earnest money from the plaintiff and it was agreed that the balance amount of Rs. 13,000/- shall be paid at the time of registration of the sale deed. A document to that effect was also executed. However, before the sale deed could be executed by said Ram Sharan Singh, he passed away after four months from the date of the execution of the said agreement. The plaintiff for several times approached the defendants who arc the heirs of deceased Ram Sharan Singh but they avoided to execute the sale deed and ultimately the plaintiff sent a notice by registered post on 29-7-1982 which was received by the defendants. A reply dated 23-8-1982 was sent by the defendants which was received by the plaintiff on 24-8-1982 but they did not execute the sale deed and hence a suit for specific performance of contract was filed. In the plaint, it has been pleaded that even today the plaintiff is ready and willing to pay the balance sale price Rs. 13,000/- and is ready to get the sale deed executed in his favour. ( 3. ) DEFENDANT No. 4, Rajendra Singh, filed the separate written statement and other defendants filed a joint written statement, however, the averments made in the plaint were denied. Though in the written statement filed by defendant No. 4, Rajendra Singh, in the alternative it was pleaded that if it is held that the document of agreement was executed by his father Ram Sharan Singh in favour of plaintiff then the signature of Ram Sharan Singh was obtained under the influence of liquor in the stage of intoxication and, therefore, the said agreement is not having any sanctity in the eye of law. The other defendants in their joint written statement denied the execution of the agreement. ( 4. The other defendants in their joint written statement denied the execution of the agreement. ( 4. ) THE learned Trial Judge framed issues and after recording the evidence held the document of agreement to be not proved and found it to be forged one and hence dismissed the suit. ( 5. ) IN this appeal Shri Rakcsh Jain, learned Counsel for the Appellant vehemently submitted that if the evidence of plaintiff is considered in proper perspective, the only inference which can be gathered is that the document (Ex. P-1) was duly executed. It has been further contended that the evidence of plaintiff Mahcndra Kumar has been corroborated by the evidence of Pannalal (P. W. 2) who was present at the time of execution (Ex. P-1) and, therefore, the document (Ex. P-1) is duly proved in the eye of law and if that be the position, the Trial Court erred in law in disbelieving the document (Ex. P-1 ). It has further been contended that the plaintiff is still ready and willing to get the sale deed executed after the payment of the balance consideration and, therefore, the suit of plaintiff be decreed. ( 6. ) THE moot question in this appeal for the decision is that whether agreement (Ex. P-1) has been proved or not. On bare perusal of this document, it is gathered that it was written by Pannalal s/o Bhogiram but no where the scribe signed this document though it is said that was written in his handwriting. The document is said to have been witnessed by one Babulal who has not been examined by the plaintiff. Under these facts and circumstances, whether it can be said the document (Ex. P-1) has been proved. Section 67 of the Indian Evidence Act speaks about the proof of document and signature. The document is said to have been witnessed by one Babulal who has not been examined by the plaintiff. Under these facts and circumstances, whether it can be said the document (Ex. P-1) has been proved. Section 67 of the Indian Evidence Act speaks about the proof of document and signature. Under this section no particular mode is provided for the proof, however, a document and the signature on it can be proved by following mode :- (i) By calling a person who signed or wrote a document; (ii) By calling a person in whose presence the documents are signed or written; (iii) By calling handwriting expert; (iv) By calling a person acquainted with the handwriting of the person by whom the document is supposed to be signed or written; (v) By comparing in Court, the disputed signatures or handwriting with some admitted signatures or writing; (vi) By proof of an admission by the person who is alleged to have signed or written the document that he signed or write it; (vii) By the statement of a deceased professional scribe, made in the ordinary course of business, that the signature on the document is that of a particular person; A signature is also proved to have been made, if it is shown to have been made at the request of a person by some other person, e. g. , by the scribe who signed on behalf of the executant; (viii) By other circumstantial evidence. " ( 7. ) IN this context, it shall be apposite to rely on the decision of Kishan Prasad v. M. P. Government through Collector, Vidisha, 1983 JLJ 474 . If the ratio deddendi of this case is tested on the anvil of the present factual scenario, it would reveal that, except the bald statement of the plaintiff himself, there is no evidence to prove Ex. P-1. The plaintiff did not try to get the document (Ex. P-1) proved by examining the attesting witness Babulal. According to me, Babulal was an important witness and sufficient light could have been thrown if he would have been examined, having failed to examine Babulal, it raises a serious doubt in respect to the due execution of the document specially when Pannalal (P. W. 2) who is said to be the scribe of the document but did not sign the document. In this view of the matter, it would be highly unsafe to rely on the bald statement of the plaintiff regarding due execution of document (Ex. P-1) and to decree the suit. As Pannalal the scribe of the Ex. P-1 has not signed the document, it can not be said that Ex. P-1 is proved by his evidence. ( 8. ) I have given my anxious consideration to the reasonings assigned by the learned Trial Judge while deciding issue No. 1 and I find them to be cogent and I do not wish to deviate from those reasonings and by this judgment I hereby give my stamp of approval to those reasonings. ( 9. ) ONE important fact which can not be marginalized and blinked away is that the defendants specifically denied not only the due execution of the document (Ex. P-1) but also the signature of Ram Sharan Singh on it and if that be the position, in my opinion, it was incumbent upon the plaintiff to get that signature examined by handwriting expert. As the plaintiff had failed to examine the signature by handwriting expert, it would be hazardous to accept the bald statement of the plaintiff that the document bears the signature of Ram Sharan Singh. In this context, it would be profitable to refer the decision of the Apex Court in the case of Ajit Savant Majagvai v. State of Karnataka, (1997) 7 SCC 119, in which Their Lordships of the Supreme Court have categorically held and decided as under:- " 38. As a matter of extreme caution and judicial sobriety, the Court should not normally take upon itself the responsibility of comparing the disputed signature with that of the admitted signature or handwriting and in the event of the slightest doubt, leave the matter to the wisdom of experts. But this docs not mean that the Court has not the power to compare the disputed signature with the admitted signature as this power is clearly available under Section 73 of the Act. [see : State (Delhi Admn.) v. Pali Ram. ]" ( 10. ) AS the document (Ex. P-1) has not at all been proved in accordance with law and the signature of Ram Sharan Singh has also not been proved, thus, in my opinion, the learned Trial Court did not err in dismissing the suit. ( 11. [see : State (Delhi Admn.) v. Pali Ram. ]" ( 10. ) AS the document (Ex. P-1) has not at all been proved in accordance with law and the signature of Ram Sharan Singh has also not been proved, thus, in my opinion, the learned Trial Court did not err in dismissing the suit. ( 11. ) IN the result, the appeal fails and is hereby dismissed, however, looking to the peculiar facts and circumstances of the case, the parties are directed to bear their own costs.