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2012 DIGILAW 268 (MAD)

M. G. Abdul Rawoof v. Rahmathunissa

2012-01-18

V.PERIYA KARUPPIAH

body2012
Judgment :- 1. This appeal is directed against the judgment and decree passed by the First Appellate Court in A.S.No.22 of 1999 dated 30.11.2000 in setting aside the judgment and decree passed by the trial Court in O.S.No.259 of 1992 dated 31.8.1998 in decreeing the suit for specific performance. 2. The appellant is the plaintiff and the respondent is the defendant. 3. The case of the plaintiff in brief before the trial Court are as follows: The defendant is the owner of the suit property. The defendant agreed to sell her property to the plaintiff for a sale consideration of Rs.40,000/-. The plaintiff agreed to purchase the same from the defendant. An agreement for sale was executed by the defendant in favour of the plaintiff on 7.3.1988. On the date of execution of the agreement of sale, the defendant received the entire sale amount from the plaintiff. Plaintiff was willing to perform the agreement on his part whereas the defendant wantonly avoiding to perform the sale in favour of the plaintiff. The time is not the essence of contract. In pursuance of the said agreement, the defendant delivered the property to the plaintiff. The plaintiff received the rents from the tenants. The plaintiff requested the defendant to execute the sale in favour of the plaintiff whereas the defendant has been postponing the same by stating some other reasons. As per the terms of contract, the defendant is liable to execute the sale in favour of the plaintiff. Under these circumstances, the plaintiff issued a notice to the defendant on 5.2.89. The defendant also sent a reply on 12.2.89. The suit was filed against the defendant directing the defendant to execute the sale deed covering the suit property in favour of the plaintiff within a stipulated time. 4. The case of the defendant stated in the written statement are as follows: The defendant never agreed to sell the suit property to the plaintiff. The alleged agreement of sale dated 7.3.88 is a forged one. It is false to state that the plaintiff was willing to purchase the same and the defendant agreed to sell the suit property for Rs.40,000/- after the execution of an agreement of sale in favour of the plaintiff on 7.3.88. Plaintiff did not pay any price amount a sum of Rs.40,000/- to the defendant. It is false to state that the plaintiff was willing to purchase the same and the defendant agreed to sell the suit property for Rs.40,000/- after the execution of an agreement of sale in favour of the plaintiff on 7.3.88. Plaintiff did not pay any price amount a sum of Rs.40,000/- to the defendant. Defendant denied that she never agreed to execute and register the sale deed as and when the plaintiff informed the defendant. Defendant never agreed to sell the property in favour of the plaintiff. It is false to state that the defendant delivered the possession to the plaintiff and the plaintiff is collecting rent from the tenants. The defendant is in possession of a portion of the building wherein she kept some of the movables. Being the brothers son, the defendant has permitted the plaintiff to be in occupation of room in the suit property by way of licence. There was a difference of opinion between the plaintiff and the defendants husband with regard to division of properties. The defendant never executed an agreement of sale. Since the plaintiff did not amicably effect the division of the family properties, the defendant filed a suit in O.S.No.26/89 against the plaintiff for partition. The plaintiff has created an agreement with a view to foist the liability on the defendant. The defendant mortgaged the suit property in favour of one Rajiniammal. The said Rajiniammal filed a suit against the defendant in O.S.No.227 of 1986 on the file of Sub-Court Vellore. The suit was decreed on 6.2.1990. Under these circumstances, it is false to state that the defendant agreed to sell the suit property for Rs.40,000/-. Taking advantage of the situation, the plaintiff forged the signature of the defendant and her husband. Since the defendant allowed the plaintiff to occupy the 2 rooms, taking advantage of the situation, the plaintiff created the false document. Plaintiff is not occupying the two rooms on the basis of agreement of sale but on the permission granted by the defendant. The plaintiff has brought the spurious agreement and has filed the same into the Court praying for discretionary relief of specific performance. Plaintiff is not entitled to get any relief for the reason that he has not approached the court with clean hands. Hence, the suit is liable to be dismissed. 5. The trial Court had framed necessary issues and entered trial. Plaintiff is not entitled to get any relief for the reason that he has not approached the court with clean hands. Hence, the suit is liable to be dismissed. 5. The trial Court had framed necessary issues and entered trial. After appraising the evidence produced on either side, the trial Court had decreed the suit and had granted two months time for execution of the sale deed by the defendant in favour of the plaintiff. Aggrieved by the judgment and decree passed by the trial Court, the defendant preferred an appeal in A.S.No.22 of 1999. The learned First Appellate Court heard both sides and had come to the conclusion of allowing the appeal by setting aside the judgment and decree passed by the trial Court and thus, dismissed the suit. 6. The plaintiff, aggrieved upon the dismissal of his suit by the judgment of the First Appellate Court, preferred the present appeal against the judgment and decree of the First Appellate Court. 7. On admission, this Court framed the following substantial questions of law: "1. Is not the appellant entitled to a decree of specific performance in view of the fact that he had been put in possession of the suit property as per Section 53-A of Transfer of Property Act? 2. Is not the burden of proof lie on the defendant who denied the execution of Document Ex.A1?" 8. Heard, Mrs.S.Shyamala, learned counsel for the appellant/plaintiff and Mrs.Hema Sampath, learned senior counsel appearing for Ms.R.Meenal, learned counsel for the respondent/defendant. 9. Learned counsel for the appellant/plaintiff would submit in her argument that the reversal judgment of the First Appellate Court is not in accordance with the evidence adduced by both parties. She would further submit that the First Appellate Court had failed to see that the handing over of possession to the plaintiff in respect of the whole property would show that the agreement of sale executed by the defendant in favour of the plaintiff would be true. She would further submit in her argument that the trial Court had taken much care to compare the signatures found in Ex.A1 agreement of sale with that of the admitted signatures of the defendants in the Vakalat, written statement and had come to the conclusion that the signatures are same and the agreement of sale was executed by the defendant in favour of the plaintiff. She would further submit that the First Appellate Court, without any valid reason had interfered with the well founded judgment of the trial Court. She would further submit that the possession of the plaintiff in respect of the suit property was proved by collecting the rents from all the tenants and was paying the taxes for the said property. Per contra, it was decided wrongly by the First Appellate Court that the plaintiff was collecting the rents as agent of the defendant. She would further submit in her argument that the agreement of sale is not compulsorily attestable document and Section 72of the Indian Evidence Act would apply and the said document could be proved with the evidence of preponderance of probability and accordingly, the trial Court had come to the conclusion of accepting the execution of the said agreement of sale by the defendant in favour of the plaintiff. She would also submit that the defendant did not dispute the signature of her husband who attested the sale agreement. She would also submit that the presence of the signature of her husband was not denied in the reply notice given by the defendant when it was demanded by the plaintiff for execution of sale deed. She would also submit that the entire sale consideration of Rs.40,000/- was paid to the plaintiff and it was the defendant who was to perform her part of the contract and therefore, the plaintiff ought to have been considered as always ready and willing to perform his part of the contract. She would further submit in her argument that the succeeding mortgage in respect of the suit property was clubbed along with another property and the defendant herself agreed to discharge the mortgage and therefore, there is no question of any incorporation of mortgage in the agreement of sale. He would also submit that even otherwise the plaintiff was ready to discharge the said mortgage in the event of specific performance decree is granted. She would further submit that the non-disclosure of mortgage in the agreement of sale is not fatal to the agreement since it is for the defendant to disclose the encumbrance at the time of entering into the agreement. She would further submit in her argument, that the First Appellate Court had rendered its decision on mere assumption and surmises. She would further submit that the non-disclosure of mortgage in the agreement of sale is not fatal to the agreement since it is for the defendant to disclose the encumbrance at the time of entering into the agreement. She would further submit in her argument, that the First Appellate Court had rendered its decision on mere assumption and surmises. She would also submit that the reasons assigned by the First Appellate Court that the defendant had spent a sum of Rs.8 lakhs to renovate the property is in no way affecting the finding of the Court since it was categorically agreed by the defendant to sell the property to the plaintiff. She would further submit in her argument that the agreement of sale has been spoken to by the plaintiff and when the agreement was entered, the possession of the property had been handed over to the plaintiff, and it should be taken that the agreement had been acted upon and the plaintiff who is in possession of the suit property under Section 53A of the Transfer of Property Act, be given the discretionary relief of specific performance in respect of the suit property. She would further submit that the plaintiff is always ready and willing to perform his part of the contract to get the sale deed in his favour. The finding of the First Appellate Court in reversing the judgment of the trial Curt is perverse and biased. He would also submit that the document which were produced as additional evidence, had not been discussed but was simply ordered to be received as exhibits in the case. She would therefore request the Court to set aside the judgment and decree passed by the First Appellate Court and to dismiss the application filed for the purpose of receiving the additional evidence, and to restore the judgment and decree of the trial Court. 10. Learned senior counsel would submit in her argument that the execution of the sale agreement was totally denied by the defendant even in her reply notice to the notice issued by the plaintiff. She would further submit in her argument that when the truth, genuineness of the agreement of sale has been disputed as fabricated, it is for the plaintiff to examine atleast one of the attestors to prove the genuineness of the documents. She would further submit in her argument that when the truth, genuineness of the agreement of sale has been disputed as fabricated, it is for the plaintiff to examine atleast one of the attestors to prove the genuineness of the documents. She would further submit that it is no doubt, an agreement is a non-attestable document and the plaintiff could produce reliable evidence in proving the document since it was denied as fabricated. She would also submit that the plaintiff had miserably failed to prove the execution of said document and the payment of Rs.40,000/- in one lump sum. She would also submit that the plaintiff had no wherewithall to pay such amount since she was not an earning member. She would further submit that the plaintiff was the younger brother of the husband of the defendant and the husband of the defendant died and she had asked the plaintiff to collect the rent on her behalf from the tenants by permitting the plaintiff to be in two rooms and to collect the rents for and on behalf of the defendants. She would further submit that the plaintiff who has taken the opportunity of staying in two rooms and collecting the rents payable to other rooms had come forward to say that he was in possession of the entire properties by collecting the rents payable to the said premises. She would further submit that when the defendant had questioned the signature found in Ex.A1 sale agreement it is for the plaintiff to examine atleast one of the attestors as already argued. She would further submit that when the consideration paid by the plaintiff was questioned, the plaintiff had not come forward with any passbook of the bank concerned to show his capacity to pay the money as spoken by him in his oral evidence. She would also submit that the plaintiff had not shown any sources of income for the payment of Rs.40,000/- in one lumpsum. Therefore, the case of the plaintiff, on that aspect, is liable to be rejected. She would further submit that the plaintiff had issued a notice in Ex.A2 to which the defendant had replied to the plaintiff. The plaintiff did not mention the existence of a mortgage deed in the notice whereas he has spoken in his evidence that he had mentioned the encumbrance of mortgage in his notice. She would further submit that the plaintiff had issued a notice in Ex.A2 to which the defendant had replied to the plaintiff. The plaintiff did not mention the existence of a mortgage deed in the notice whereas he has spoken in his evidence that he had mentioned the encumbrance of mortgage in his notice. It was confirmed by him during the cross examination of P.W.1, on two occasions but on verification of Ex.A2 it has not been stated so and therefore, he would submit that the plaintiff had come forward with unclean hands and with a lie to pursue the court to get specific performance decree at any cost. She would submit that the plaintiff is not entitled to any discretionary relief at the hands of this Court since he has come with lie and unclean hands. In support of her arguments, she would also cite the judgments of this Court reported in 1997(II) CTC 417 (Amirtham vs. Subbian and 3 others) and 2005 (5) CTC 17 (P.Panneerselvan vs. A.Baylis). She would also submit that the First Appellate Court has categorically come to the conclusion of dismissing the suit since the trial Court had simply granted a decree merely for asking it. In the said circumstances, the appeal preferred by the respondent/plaintiff may be dismissed with costs. 11. I have given anxious thoughts to the arguments advanced on either side. 12. The relationship in between the plaintiff and the defendant are admitted. The plaintiff is the younger brother of the husband of the defendant. It is also an admitted fact that the plaintiff was staying in two rooms of the suit building and was collecting rent on behalf of the defendant. However, it has been argued that after entering into an agreement of sale, the plaintiff had exercised his right over the property and collected the rent as of his own. However, it has been denied by the defendant that the defendant did not execute any agreement of sale in respect of the suit property in favour of the plaintiff who is none other than the younger brother of her husband. The plaintiff did not examine any other person except himself. However, it has been denied by the defendant that the defendant did not execute any agreement of sale in respect of the suit property in favour of the plaintiff who is none other than the younger brother of her husband. The plaintiff did not examine any other person except himself. The contentions raised by the defendants in respect of the agreement of sale produced in Ex.A1 would be that the defendant never agreed to sell the suit properties to the plaintiff and the agreement of sale said to have been executed on 7.3.1988 is a forged one and the allegation that the plaintiff paid a sum of Rs.40,000/- after the execution of agreement of sale in favour of the plaintiff is not correct. No doubt, the agreement of sale said to have been executed on 7.3.1988 is not a compulsorily attestable document but the defendant had denied the execution and had termed the execution of agreement as rank forgery. In the said circumstances, it ought to have been proved by the plaintiff to the satisfaction of the Court. Before the trial Court, the plaintiff examined himself as P.W.1 and none else was examined by him. The attestor or the scribe of the said document Ex.A1 were not examined. Whether the proof produced could be accepted without the examination of any other evidence is the question. 13. The trial Court had compared the signature of the defendant in Ex.A1 with other admitted signatures of her for the purpose of deciding the genuineness of the execution of the said document. On such verification, it had found that the signature found in Ex.A1 was similar to that of the admitted signatures of the defendant. Whether it would be amounting to proof of any document. Ex.A1 is not an Negotiable Instrument to draw any presumption as to the reliability of the document on the acceptance of the signature of parties. The defendant had disputed not only the signature but also the signature of her husband said to have been subscribed by the attestor as well as buying of stamp papers and the writing over the said stamp paper. No doubt, the said document in Ex.A1 contains only one page. At the foot of single paper document, the defendant is said to have signed and the attestors have also subscribed their signatures. No doubt, the said document in Ex.A1 contains only one page. At the foot of single paper document, the defendant is said to have signed and the attestors have also subscribed their signatures. The husband of the defendant who is said to have signed the document was dead. The next attesting signature is said to have belonged to the sister-in-law of the defendant who is none other than the sister of the plaintiff. Lastly , the scribe has put his signature at the bottom. There is no reason for non-examination of the sister as well as the scribe. Whether the execution of Ex.A1 could be presumed by taking into other circumstances is the question. It is the evidence of P.W.1 i.e., the plaintiff that he had his bank account and he had withdrawn some money from the said Bank account and after selling his wifes jewels he had paid a lumpsum of Rs.40,000/-to the defendants towards the sale price for the sale agreement on 7.3.1988. It is seen that the consideration of the sale itself is Rs.40,000/- and yet on the payment of entire consideration of Rs.40,000/-, sale agreement was entered into. No explanation offered was by the plaintiff for the said circumstance. The serious contention leveled by the defendant was that it was a rank forgery and it was not signed by her. The alleged payment of Rs.40,000/- has not been satisfactorily explained nor proved by the plaintiff so as to draw presumption of its genuineness since it is not attestable document. 14. Further, we have also to see whether the evidence of P.W.1 would further win the confidence of Court in the absence of examination of the attestor or scribe. Admittedly, there was a mortgage in respect of the suit property along with yet another property belonged to the defendant. The mortgage debt is a debt attached with the property and the said debt has to be discharged by the owner of the property whether it was agreed or not. As far as this case is concerned, the outstanding mortgage debt was not considered for fixing the sale price to the suit property. It was simply stated by the plaintiff that the defendant agreed to discharge the mortgage on her own and therefore, the mortgage was not referred to in the agreement. As far as this case is concerned, the outstanding mortgage debt was not considered for fixing the sale price to the suit property. It was simply stated by the plaintiff that the defendant agreed to discharge the mortgage on her own and therefore, the mortgage was not referred to in the agreement. The explanation of the plaintiff would be very strange to accept because the mortgage is a continuing debt with the property and on the sale of the said property, the purchaser will be liable to pay the said debt since the vendor would part with the property. Therefore, the non-mentioning of the mortgage deed on the sale agreement is very much affecting the case of the plaintiff. Moreover, in the cross-examination of the plaintiff he would categorically admit that the mortgagee Raginiammal had filed a suit in O.S.No.227 of 1986 for bringing the mortgaged property for sale. However, he had stated that the mortgage of the property for a sum of Rs.20,000/- was not known to him. It is also spoken to by P.W.1 that he had requested the defendant to execute the sale deed after removing the mortgage over the property. Apart from that, he had admitted that he had informed in the notice sent by him that the defendant had accepted to hand over the original documents after redeeming the mortgage with the said Raginiammal. However, on verification in the notice issued in Ex.A2, no reference as to the mortgage as spoken in his evidence. Nothing was spoken in respect of mortgage in the notice Ex.A2. In the said circumstances, the evidence of P.W.1 cannot be relied upon for the purpose of proving the said agreement of sale Ex.A1 and for the payment of consideration of Rs.40,000/-. 15. The trial Court had come to the conclusion of accepting the execution of sale agreement purely on the basis of comparison of signatures. No doubt, the signature said to have been subscribed by the defendant in Ex.A1 was in the year 1988 but the signature compared were found in Vakalat and written statement which was subscribed by the defendant in the year 1991. Therefore, the said comparison cannot be a true finding. No doubt, the signature said to have been subscribed by the defendant in Ex.A1 was in the year 1988 but the signature compared were found in Vakalat and written statement which was subscribed by the defendant in the year 1991. Therefore, the said comparison cannot be a true finding. The mere finding of signature as identical will not in any way prove the execution of sale agreement which does not contain any covenant regarding the mortgage existing over the property and regarding handing over of possession of the suit property. When the possession was not handed over in pursuance of the agreement of sale, there cannot be any persuasion of the provisions of Section 53 A of Transfer of Property Act. As rightly argued by the learned senior counsel, the defendant had issued a letter to all the tenants to pay the rents to the defendant only as in Ex.A5 and how the defendant would have executed the sale agreement in favour of the plaintiff. The said letter was produced by the plaintiff himself and therefore, the said document which does not refer to the agreement of sale will probabilise the case of the defendant only as to there was no agreement in between the plaintiff and the defendant. Further more, on a cursory look of Ex.A1, I could see that the writings in the agreement would go to show that the sentences have been thrust inside so as to complete the document within the signature said to have been put by the defendant. 16. Moreover, the plaintiff has to stand upon his own case and he cannot rely upon the weakness of the defendant. The said principle has been laid down in the judgment of this Court reported in 2005 (5) CTC 17 (P.Panneerselvam v. A.Baylis), whereinit is held as follows: "(13.) We do not think such a contention can be countenanced, more particularly, in a suit for specific performance of a contract. Apart from the general principle of law that the plaintiff must succeed on the strength of his own case and not on the basis of the weakness in the case of the defendant, in a suit for specific performance of contract, the plaintiff is obviously required to prove that there is a definite contract which capable of being specifically enforced." The plaintiff has not proved his case as rightly held by the lower appellate court. 17. 17. In such circumstances, I do not find any credence over the finding of the trial Court as rightly set aside by the learned First Appellate Court. 18. The finding of the First Appellate Court that the execution of agreement of sale in Ex.A1 was not genuine has been arrived at after a serious discussion and it could not be found that it was either perverse or biased. Therefore, I am not inclined to interfere with the finding that Ex.A1 sale agreement is not a true document. 19. Further, the plaintiff has come forward with a suit for specific performance in which he must come forward with all the particulars in a transparent manner. In other words, he has to come to Court with clean hands. Even otherwise the agreement of sale is considered to be a true one, the relief for specific performance cannot be granted to the plaintiff because he had not deposed to the confidence of the Court since he had stated in his cross examination that he had mentioned about the mortgage debt in his notice whereas it was not found so. Therefore, I am also not inclined to accept that the plaintiff is entitled for the grant of discretionary relief of specific performance. Moreover the possession was not given in pursuance of any valid agreement of sale and there can be no possession handed over to constitute part performance of contract under Section 53A of the Transfer of Property Act. Similarly, the plaintiff has not discharged his burden of proving that the agreement of sale was validly executed by the defendant and therefore, there is no question of any disproving of agreement of sale by resorting to lawful methods by the defendant. Therefore, both the questions of law are answered against the appellant. 20. For the forgoing discussions, I am of the considered view that the judgment and decree passed by the First Appellate Court are based upon sound principles in appreciating the evidence and therefore, it is not liable to be disturbed. 21. In fine, the judgment and decree passed by the First Appellate Court are confirmed and the second appeal is dismissed. No costs.