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Madras High Court · body

2010 DIGILAW 3381 (MAD)

A. K. Narayanan v. A. K. Purushothama Chettiar

2010-08-06

M.VENUGOPAL

body2010
Judgment :- 1. The Appellant/Plaintiff has filed the Present Appeal before this Court as against the Judgment and Decree dated 30.9.1996 in A.S. No.117 of 1993 on the file of learned Principal District Judge, Vellore. 2. The First Appellate Court viz., the learned Principal District Judge, Vellore while passing the Judgment in Appeal No.117 of 1993 and in Cross Appeal 117 of 1993 [filed by the 1st Respondent/1st Defendant] has among other things observed that “…the Defendants 2 and 3, the sons of the 1st Defendant had also got their shares in the suit Property and there was also no legal necessity for the 1st Defendant to enter into an Agreement of Sale and came to the conclusion that Ex.A.1 was not enforceable and it was not true and valid’’ and resultantly dismissed the Appeal without costs. 3. The Trial Court has framed 1 to 4 issues and also 1 to 3 additional issues for determination. On the side of the Appellant/Plaintiff, witnesses PW1 to 3 have been examined and Exs.A.1 to A.23 have been marked. On the side of the Respondents/Defendants, DW1 and 2 have been examined and Exs.B1 to B.10 have been marked. 4. On an appreciation of oral and documentary evidence available on record, the Trial Court has come to the consequent conclusion that the Appellant/Plaintiff is not entitled to claim the relief of specific performance because of the fact that in the light of Suit agreement, no amount has been paid and Ex.A.1 - Sale Deed dated 21.4.1983 and Ex.A.2 endorsement dated 5.9.1983 will not bind the Respondents/Defendants and resultantly dismissed the Suit with costs. 5. Feeling aggrieved with the Judgment and Decree dated 30.9.1996 made in A.S. No.117 of 1993 on the file of learned Principal District Judge, Vellore, the Appellant/Plaintiff has preferred the Second Appeal before this Court. 6. At the time of admission of the Second Appeal, the following Substantial Questions of Law have been framed by this Court. “1. When the 1st Defendant himself admits that the signature found in the document Ex.A.1 is his signature, whether the learned District Judge is right in holding that the document is not true? 2. 6. At the time of admission of the Second Appeal, the following Substantial Questions of Law have been framed by this Court. “1. When the 1st Defendant himself admits that the signature found in the document Ex.A.1 is his signature, whether the learned District Judge is right in holding that the document is not true? 2. When the 1st Defendant is an educated person and is an Officer in a Nationalised Bank, whether the learned district Judge is right in accepting his contention that he has signed the stamp papers without even caring to go through the contents?” The Contentions, Discussions and findings on Point Nos. 1 and 2: 7. According to the learned Counsel for the Appellant/Plaintiff, the First Appellate Court, viz., the learned District Judge has committed an error in coming to the conclusion that the Father/Manager has no right to enter into the transaction and moreover, the Appellate Court ought to have held that the transaction is binding on the sons of the 1st Defendant. 8. That apart, it is the contention of the learned Counsel for the Appellant that the learned District Judge has come to a wrong conclusion in holding that the transaction amount is not used to construct and improve the house and the debts are not discharged by the transaction money received. 9. Advancing his arguments, the learned Counsel for the Appellant/Plaintiff submits that the 1st Respondent/1st Defendant denied the Agreement fraudulently with an ulterior motive and when the 1st Respondent/1st Defendant has admitted his signature in the Agreement, then, a decree ought to have been granted in favour of the Appellant/Plaintiff. 10. The learned Counsel for the Appellant/Plaintiff contends that the First Appellate Court viz., the Principal District Judge, Vellore should have seen that the 1st Respondent/1st Defendant is a literate person, working as an Officer in Bank and as such his plea that he signed the stamp papers and ordinary papers without even caring to go through the contents is highly artificial and unbelievable one. 11. 11. Proceeding further, the learned Counsel for the Appellant/Plaintiff submits that the First Appellate Court should have seen that both in Ex.A.1-Agreement dated 21.4.1983 and in Ex.A.2 endorsement dated 5.9.1983, the signatures of the 1st Respondent/1st Defendant are seen and in any event, the First Appellate Court ought to have taken note of the fact that Ex.A2 to A18 documents have been written by the 1st Respondent/1st Defendant requiring money and also admitted by him, has committed an error in coming to the conclusion that there is no legal necessity for entering into an Agreement of Sale. 12. The main contention of the learned Counsel for the Appellant/Plaintiff is that the First Appellate Court viz., the learned Principal District Judge, Vellore has not taken into account of the factual matters centering round the case in a real perspective, which has resulted in miscarriage of justice and therefore prays for allowing the Second Appeal in furtherance of substantial cause of justice. 13. Contending contra, the learned Counsel for the Respondents 1 to 3/Defendants submits that both the Courts below have taken note of the relevant facts and attendant circumstances of the cause in a complete and comprehensive manner and has arrived at a conclusion that Ex.A1-Sale Agreement dated 21.4.1993 is not an enforceable one and has declined the relief of specific performance of contract and as such the concurrent findings render thereto need not be disturbed by this Court. 14. The learned Counsel for the Appellant/Plaintiff submits that the 1st Respondent/ 1st Defendant has admitted his signature in Ex.A.1-Agreement dated 21.4.1983 entered into between the Appellant/Plaintiff and himself and also the signature in Ex.A2-endorsement dated 5.9.1983 and if a person admits his signature of a document, then it is the circumstance which will go against the person concerned, of course the said presumption is rebuttable in the eye of law. 15. 15. Added further, it is the contention of the learned Counsel for the Appellant/Plaintiff that the 1st Respondent/1st Defendant has been in the habit of taking loans and in fact, the 1st Respondent/1st Defendant has obtained a loan for constructing his house which is necessity for the family and it is the case of the 1st Respondent/1st Defendant that his signature has been taken in a blank paper, which has been rejected by the Trial Court and as a matter of fact, the signature of the 1st Respondent/1st Defendant in Ex.A.1 has been admitted by D.W.1, but these aspects of the matter have not been properly appreciated by the 1st Appellate Court. 16. The learned Counsel for the Appellant/Plaintiff urges before this Court that there is no pleading in regard to the Ex.B.1-Sale Deed dated 21.4.1983 and in fact the lower Appellate Court should not have given much importance to Ex.B.1-Sale Deed dated 21.4.1983 and in the absence of a pleading, Ex.B.1-sale Deed dated 21.4.1983 can be ignored and the finding rendered by the First Appellate Court that advance of Rs.10,000/- paid has not been proved is not a correct one. 17. The learned Counsel for the Appellant/Plaintiff submits that the 1st Respondent/1st Defendant has been in need of money to perform Betrothal Function of his daughter and Ex.A.14 is the letter dated 10.6.1983 written by the 1st Respondent/1st Defendant to the Appellant/Plaintiff which will show that the 1st Respondent/1st Defendant is in need of money. The learned counsel for the Appellant/Plaintiff submits that the ingredients of Section 16(c) of the Specific Relief Act have been fulfilled by the Appellant/Plaintiff and therefore, the Appellant/Plaintiff is entitled to claim the relief of Specific Performance. 18. The evidence of P.W.1(Plaintiff) is to the effect that the suit property viz., Coconut Grove belongs to the 1st Respondent/1st Defendant and he has agreed to sell the same to him for a sale consideration of Rs.14,000/- and Ex.A.1 is the Agreement dated 21.4.1983 and that he has paid an advance of Rs.10,000/- and it has been agreed that the balance will be paid at the time of sale and initially the talk has been to execute the Sale Deed within a year. 19. 19. It is the further evidence of P.W.1 that when he asked the 1st Respondent/1st Defendant as to why the Sale Deed has not been executed within the Agreement time, he informed him that because of the income tax problem, the sale can be effected later on and again he paid a sum of Rs.2,000/- on that date and after receipt of the same, Ex.A.2 – endorsement has been made by the 1st Respondent/1st Defendant to extend the time limit of execution of Sale Deed and he issued registered notice to 1st Respondent/1st Defendant requiring him to execute the Sale Deed as per Ex.A.1 – Agreement which has been written and the Ex.A.3 is returned cover and again he issued a notice to his brother viz., the 1st Respondent/1st Defendant through certificate of posting and the office copy and the covering letter is Ex.A.4, Ex.A.5 is the proof of certificate of posting and that his brother 1st Respondent/1st Defendant works in State Bank of India at Town Branch at Arcot Road, situated opposite to Christian Medical College. 20. It is the evidence of P.W.1 (Appellant/Plaintiff) that before the execution of Ex.A1-Agreement dated 21.4.1983, he has purchased the land measuring an extent of 2 Acres and 83 cents for a sum of Rs.64,000/- but the sale price in the document has been mentioned as Rs.47,000/- and the Agreement has been written in respect of 2 Acres and 83 cents and it is wrong to state that when he has made ready, the Sale Agreement in respect of 2 Acres and 83 cents at that time, the 1st Respondent/1st Defendant has signed according to his dictates. Further more, it is evidence of P.W.1 that for 2 acres and 83 cents and for the suit property there is one agreement and the agreement relates to two items of property to be sold for a sum of Rs.82,575/- 21. Further more, it is evidence of P.W.1 that for 2 acres and 83 cents and for the suit property there is one agreement and the agreement relates to two items of property to be sold for a sum of Rs.82,575/- 21. Continuing further, it is the evidence of P.W.1 that his brother had other properties apart from the suit property and those properties have been sold out 6 months before an Agreement is executed in his favour and that 2 and 3 Defendants have filed a Suit against him and the 4th Defendant before the Sub-Court praying for the relief of partition and in that Suit, the suit property and the property already purchased have been included and Ex.A.7 is the certified copy of the said Plaint and Ex.A.10 is the agreement in respect of the suit property and another land measuring an extent of two acres and 83 cents, which is in favour of his son, the 4th Defendant. 22. P.W.1 in his cross-examination has stated that Ex.B.1–Sale Deed has been written by a document writer in the office at Pallikondan and at that time, when the document has been received, the 1st Respondent/1st Defendant has not been present and Ex.A.1-Agreement has been written by a Document Writer in the office and Ex.A.1-Agreememnt and Ex.B.1-Sale Deed have been directed to be written by the 1st Respondent/1st Defendant on the first day itself and on that basis, only he has asked the document writer to write the Sale Deed and Agreement and he has not written any draft and handed over the same to the document writer and further he does not know about the name of the person who has written Ex.B.1 and Ex.A.1 documents. 23. Also P.W.1 has deposed that the Sale Deed has been written by Mohan and the Agreement has been written by one Paneer Selvam and in the Stamp Vendor office, in the two documents, the 1st Respondent/1st Defendant has affixed his signature and the witnesses are one Rajasekar and Kannappa Chettiar. 23. Also P.W.1 has deposed that the Sale Deed has been written by Mohan and the Agreement has been written by one Paneer Selvam and in the Stamp Vendor office, in the two documents, the 1st Respondent/1st Defendant has affixed his signature and the witnesses are one Rajasekar and Kannappa Chettiar. In the Sale Deed, firstly, the 1st Respondent/1st Defendant has signed and later after 10 minutes he has signed in the Agreement and the 1st Respondent/1st Defendant has to pay a sum of Rs.22,575/-apart from the money given by him and he has paid a sum of Rs.18,575/- to the 1st Respondent/1st Defendant for which he has not obtained a receipt and the 1st Respondent/1st Defendant has put his signature in the agreement and at the time of 1st Respondent/1st Defendant affixing his signature in the Agreement, he has paid to him a sum of Rs.18,575/- but in the Agreement, it is mentioned as Rs.10,000/- paid and on the date of writing the document, he has not paid a sum of Rs.47.,000/-. 24. P.W.1 in his evidence goes on to add that in Ex.A.10-Sale Agreement, the 1st Respondent/1st Defendant has put his signature and the said Ex.A.10-Agreement has been written by Subramani Mudaliar and in Ex.A.1, he has not put his signature and for the balance of Rs.8,575/- for Ex.A.1-Agreement, there is no receipt and after 21.4.1983 he does not remember whether he has paid a sum of Rs.10,000/-. 25. It is the further evidence of P.W.1 that in front of Ex.A.10-Agreement, he obtained the signature in Ex.B.1-Agreement dated 21.4.1983 and in Ex.A.10-Agreement, the suit property has also been included. 26. P.W.2 in his evidence has stated that he has written Ex.A.10-Agreement in which his signature is seen and in Ex.A.11, the 3rd endorsement has been written by him and on that date viz., on 21.4.1983 a Sale Deed has been written by his Assistant Mohan and the instructions to write the said document has been given by the vendor and in Ex.A.11, the 3rd endorsement refers to the amount of Rs.10,000/- to be received and moreover Ex.A.1-Agreement has been written by one Panneerselvam who has worked under him and Ex.A2-endorsement has been written by Mohan who also worked under him and both of them are not now with him. 27. 27. It is the evidence of PW2 in his cross-examination that at that time of Ex.B1-Sale Deed has been written, Lakshmanan has given him Rs.10,000/-which is the amount to be paid under the agreement, which sum he has paid to 1st Respondent/1st Defendant and at that time, there is witnesses and also Plaintiff has not been present. 28. P.W.3 in his evidence has stated that Ex.A.2-endorsement has been written by him in which the 1st Respondent/1st Defendant has signed and he has seen the same and at that time, 1st Respondent/1st Defendant received the amount. 29. D.W.I (1st Respondent/1st Defendant) in his evidence has deposed that his property is belonged to ancestors and Ex.B.1 contains two lands and a coconut grove and Ex.A.10-Agreement has been executed by him and in Ex.A.10-Agreement, the property sold in Ex.B.1 and the suit property are included and he has not informed – the Appellant/Plaintiff about the selling of the land found in Ex.A.1-Agreement and he has no intention to sell the same and that apart the Appellant/Plaintiff has came to his bank (his place of work) and obtained his signature in Ex.A.10-Agreement and that he has not read the contents of Ex.A.10-Agreement. 30. It is the candid evidence of DW1 that he has not executed Ex.A.1-Agreement dated 21.4.1983 and also that he has not received any amount in respect of Ex.A.1-Agreement dated 21.4.1983 and Ex.B.1-Sale Deed dated 21.4.1983 and in the Registrar Office at Pallikondan in the blank stamp papers and in blank paper, his signature has been obtained and at that time on 21.4.1983, no amount has been paid to him and his signature has been obtained by Subramaniam and before the Sub-Registrar, the said Subramaniam has kept some papers and that he has informed the Registrar that he is selling and at that time, the Appellant/Plaintiff has been present and in the Registrar’s Office, he has not read the signature affixed by him and every thing has been over within 5 to 7 minutes. 31. It is the specific evidence of DW1 that the signature seen in Ex.A1-Agreement belongs to him, but he has not executed Ex.A.1-Agreement and he does not know about it and further he has not received a sum of Rs.10,000/- as mentioned in Ex.A.1-Agreement and at the time of Registration, his signature papers already obtained have been made used. 32. 31. It is the specific evidence of DW1 that the signature seen in Ex.A1-Agreement belongs to him, but he has not executed Ex.A.1-Agreement and he does not know about it and further he has not received a sum of Rs.10,000/- as mentioned in Ex.A.1-Agreement and at the time of Registration, his signature papers already obtained have been made used. 32. D.W.2 in his evidence has stated that the 1st Respondent/1st Defendant is her husband and 2nd and 3rd Defendants are her sons and Ex.A.1 Agreement will not bind the share of 2nd and 3rd Defendants and that he has filed a suit for partition on behalf of the 2nd and 3rd Defendants before the Sub-Court and she does not know about the Ex.A.1-Agreement and further there is no necessity to sell the property for the purpose of family and also for the welfare of her sons. 33. The Learned Counsel for the Respondents/Defendants submits that the 1st Respondent/1st Defendant has not agreed to sell the property as a ‘Kartha’ and the Appellant/Plaintiff has not clearly stated that he has paid Rs.10,000/- for Ex.A.1-Agreement and Court cannot presume that a sum of Rs.10,000/- has been paid for Ex.A.1-Agreement and in fact the 1st Respondent/1st Defendant admitted his signature, but this will not clothe legal presumption, as this is not a case under Negotiable Instruments Act and the said endorsement in Ex.A.7 regarding the payment of Rs.2,000/- is false and under Ex.A.1-Agreement, Rs.2,000/- has not been paid and Ex.A2 has been written in Pallikondan Sub-Registrar Office and findings regarding Ex.A.2-endorsement for payment of Rs.2,000/- has not been challenged by the Appellant/Plaintiff and both the Courts have held that the signature of 1st Respondent/1st Defendant in Ex.A2-endorsement is at variance and the findings rendered by the Courts below is that the suit property is an ancestral property and therefore Suit has to fail and rightly both the Courts have come to the conclusion in dismissing the Suit. 34. A perusal of Ex.A.1-Agreement dated 21.4.1983 between the Appellant/Plaintiff and the 1st Respondent/1st Defendant does not mentioned that the 1st Respondent/1st Defendant has agreed to sell the suit property in the capacity as ‘kartha’ of the Defendant’s family. In the instant case on hand, there is no iota of evidence to establish that there has been a necessity for the 1st Respondent/1st Defendant to enter into an Agreement as per Ex.A.1 with the Appellant/Plaintiff. 35. In the instant case on hand, there is no iota of evidence to establish that there has been a necessity for the 1st Respondent/1st Defendant to enter into an Agreement as per Ex.A.1 with the Appellant/Plaintiff. 35. It is the evidence of P.W.1 that a sum of Rs.18,575/- has been paid by him to the 1st Respondent/1st Defendant and out of the said “sum of Rs.18,575/- a sum of Rs.10,000/- mentioned in the Agreement has been paid on that day. For Ex.B.1-Sale Deed dated 21.4.1983, a sum of Rs.18,575/- has been paid and admittedly, no receipt has been obtained. D.W.1 (1st Respondent/1st Defendant) has deposed that he has not received Rs.10,000/- and Rs.2,000/- and just because he happens to be the brother of Appellant/Plaintiff he has signed in the papers reposing confidence on his brother. It is the clear cut evidence of DW1 (1st Respondent/1st Defendant) that he has not signed in Ex.A2-endorsement, though he has admitted his signature in Ex.A.1-Agreement. DW1’s evidence unhesitatingly goes to show that his signature has been obtained when he has been to the Registrar’s Office and therefore, one could safely come to the conclusion that Ex.A.1-Sale Agreement dated 21.4.1983 and Ex.A2-endorsement dated 5.9.1983 have been created for the occasion in the considered opinion of this Court. Moreover, when the suit property is a joint family property, the 1st Respondent/1st Defendant is not the single owner and in the absence of any recital in Ex.A.1-Agreement dated 21.4.1983 that he is the ‘Kartha’ of the family, he has no right to execute an agreement of sale in regard to the entire property. In short, Ex.A.1-Agreement dated 21.4.1983 is unenforceable in the eye of law and viewed in that perspective, the Appellant/Plaintiff is not entitled to claim the relief of specific performance and accordingly this Court holds that the learned Principal District Judge, Vellore is correct in coming to the conclusion that Ex.A.1 is not a true and valid document and also this court holds that since the 1st Respondent/1st Defendant being the brother of the Appellant/Plaintiff working in a Nationalised Bank has signed in the papers reposing faith on him and therefore has not bestowed his attention to go through the contents and in this regard, the conclusion arrived at by the learned District Judge, Vellore does not suffer from any material irregularity or patent illegality and consequently the Second Appeal fails. 36. 36. In the result, the Second Appeal is dismissed leaving the parties to bear their own costs. Resultantly, the Judgment and Decree of the Appellate Court viz., Principal District Judge, Vellore in A.S. No.117 of 1993 dated 30.9.1996 are affirmed by this Court for the reasons assigned in the Second Appeal.