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2012 DIGILAW 445 (MAD)

M. Mani v. R. Balakrishnan

2012-01-30

G.RAJASURIA

body2012
Judgment :- 1. This appeal is focussed by the plaintiff as against the judgment and decree dated 20.09.2007 made in O.S.No.20 of 2006 on the file of the learned District Judge of The Nilgiris at Udhagamandalam. The parties are referred to hereunder according to their litigative status and ranking before the trial Court. 2. Broadly but briefly, narratively but precisely, the relevant facts absolutely necessary and germane for the disposal of this appeal would run thus: The plaintiff filed the suit for specific performance with the following prayer: "(a) To direct the defendants to convey the suit schedule property to the plaintiff and execute the sale deed in favour of the plaintiff in respect of the suit schedule property after receiving the balance sale consideration of Rs.4,44,360/-; and (b) in the case his failure to execute the sale deed as agreed, the Hon'ble Court may be pleased to permit the plaintiff to have the same executed through this Hon'ble Court." (extracted as such) 3. The first defendant submitted to decree. D2 to D5 filed the written statement jointly resisting the suit; whereupon issues were framed. 4. During trial, the plaintiff-Mani examined himself as P.W.1 along with P.W.2-Ravi and P.W.3-Jayaraman and Exs.A1 to A21 were marked. On the side of the defendants, D1-R.Balakrishnan and D4-G.Ramesh examined themselves as D.W.1 and D.W.2. 5. Ultimately, the trial Court partly decreed the suit as against D1 in respect of an extent of 9.66 acres as covered by the sale deeds Exs.A3, A8 and A9 which stood in the name of D1. Being aggrieved by and dissatisfied with the said judgment and decree of the trial Court, the plaintiff preferred this appeal so as to get the entire suit decreed in his favour on various grounds. 6. The learned counsel for the appellant/plaintiff reiterating the grounds of appeal would put forth and set forth his arguments, which could pithily and precisely be set out thus: (a) The trial Court ought to have decreed the entire suit taking into account the evidence adduced on the side of the plaintiff. (b) The denial of Ex.A2 by D2 should not have been taken seriously by the trial Court. (c) The learned trial Judge himself ought to have compared the disputed signature of D2 with her admitted signatures in the vakalat, written statement etc. and ought to have held that Ex.A2 was executed genuinely by D2. (b) The denial of Ex.A2 by D2 should not have been taken seriously by the trial Court. (c) The learned trial Judge himself ought to have compared the disputed signature of D2 with her admitted signatures in the vakalat, written statement etc. and ought to have held that Ex.A2 was executed genuinely by D2. Accordingly, the learned counsel for the plaintiff/appellant would pray for decreeing the entire suit as prayed for by the plaintiff. 7. In a bid to shoot down and mince meat, torpedo and pulverise the arguments as put forth and set forth on the side of the appellant/plaintiff, the learned counsel for the respondents/D2 to D5 would pilot his arguments inviting the attention of this Court to various portions of the records, which could tersely and briefly be set out thus: (a) The trial Court appropriately and appositely took into account the fact that the plaintiff did not even venture to get the expert opinion marked, in view of the obvious reason that the said report of the expert was against his plea. (b) There is no iota or molecular extent of evidence to show that as contended by the plaintiff, there was any joint family status between D1 and the propositus of D2 to D5, namely Govindarajan. (c) As per Exs.A3, A8 and A9, a total extent of 9.66 acres, was purchased by D1 and he had absolute ownership over the same. However, the remaining extent of the suit property as found set out in the schedule of the plaint, was purchased by D2, in her own name, as per Exs.A4 to A7. (d) D1 was not the Kartha of the alleged joint family. The plaintiff and D1 in collusion with each other wanted to grab the property of D2 to D5. As on the date of alleged emergence of Ex.A2, D3, D4 and D5 were majors and there is nothing to indicate as to what prevented the plaintiff from getting their signatures also if at all he had any genuine intention to purchase the property standing in the name of D2. (e) The trial Court appropriately and appositely, correctly and convincingly disbelieved the theory of joint family and also the capacity of D1 as Kartha of the family to agree to sell the entire property as found described in the schedule of the plaint. (e) The trial Court appropriately and appositely, correctly and convincingly disbelieved the theory of joint family and also the capacity of D1 as Kartha of the family to agree to sell the entire property as found described in the schedule of the plaint. Accordingly, the learned counsel for the respondents/D2 to D5 would pray for the dismissal of the appeal. 8. The points for consideration are as to: (1) Whether Ex.A2 was disbelieved by the trial Court on unsound reasons, without comparing the disputed signature of D2 with that of the admitted signatures in the Vakalat, written statement etc.? (2) Whether the trial Court was justified in rejecting the theory of joint family and the capacity of D1 to enter into the agreement to sell on behalf of the defendants 2 to 5, the property standing in the name of D2? 3. Whether there is any perversity or illegality in the judgment of the trial Court? 9. All these points are taken together for discussion as they are inter-linked and interwoven with one another. 10. The indubitable and indisputable, or atleast the undeniable facts would run thus: The plaintiff and D1 entered into Ex.A1-the agreement to sell, whereby, the latter agreed to sell in favour of the former the property described in Ex.A1, namely the suit property, by posing himself as though he happened to be the Kartha of the joint family, which allegedly existed between the deceased Govindarajan, the propositus of D2 to D5 and himself; the plaintiff relied upon Ex.A2 as the confirmation agreement executed by D2 along with D1 in concinnity with Ex.A1. 11.Ex facie and prima facie, it is clear that the burden of proof is on the plaintiff to prove his case. I recollect and call up the following maxims: (1) Affirmantisest probare: The person who affirms must prove. (2) Affirmanti, non neganti, incumbit probatio: The proof is incumbent on the one who affirms, not on the one who denies. 12. Accordingly, it is the plaintiff who should have proved that there existed joint family relationship between the deceased Govindarajan, the propositus of D2 to D5, and himself and that from out of the joint family income, the said properties were purchased both in the name of D1 and D2 as set out supra. Obviously and axiomatically, the sale deeds Exs.A4 to A7 are standing in the name of D2, the wife of deceased Govindarajan. Obviously and axiomatically, the sale deeds Exs.A4 to A7 are standing in the name of D2, the wife of deceased Govindarajan. The parties are apparently Hindus. As such, as per Hindu law, if a property stands in the name of a lady, there is no presumption that it is the joint family property, unless there is clinching evidence to show that from out of the joint family funds the properties were purchased in the name of a lady. There is no jot or scintilla, miniscule or molecular extent of evidence to display and demonstrate that those properties in the name of D2 were purchased from out of the alleged joint family funds; that is the elephant in the room that I need to discuss. There is nothing to indicate what was the joint family income which D1 and the deceased Govindarajan had. The trial Court also correctly commented upon Ex.A2, by pointing out that Ex.A2 was found written on a stamp paper which was of the year 1991, but Ex.A2 itself was purported to have been written on 25.11.2004, so to say thirteen years after such purchase. As such, the trial Court appropriately and appositely disbelieved the theory of the plaintiff. Absolutely there is no reason for not obtaining the signatures of D2 to D5 in Ex.A1 itself. 13. Pellucidly and palpably, one could understand that the expert opinion which was obtained at the instance of the plaintiff was against the plaintiff and that was why no steps were taken by the plaintiff to get it marked in the way known to law and more specifically as per Section 60 of the Indian Evidence Act, which is extracted hereunder for ready reference: "60. Oral evidence must be direct. Oral evidence must be direct. Oral evidence must, in all cases whatever, be direct; that is to say-- if it refers to a fact which could be seen, it must be the evidence of a witness who says he saw it; if it refers to a fact which could be heard, it must be the evidence of a witness who says he heard it; if it refers to a fact which could be perceived by any other sense or in any other manner, it must be the evidence of a witness who says he perceived it by that sense or in that manner; if it refers to an opinion or to the grounds on which that opinion is held, it must be the evidence of the person who holds that opinion on those grounds: Provided that the opinions of experts expressed in any treatise commonly offered for sale, and the grounds on which such opinions are held, may be proved by the production of such treatises if the author is dead or cannot be found, or has become incapable of giving evidence, or cannot be called as a witness without an amount of delay or expense which the Court regards as unreasonable: Provided also that, if oral evidence refers to the existence or condition of any material thing other than a document, the Court may, if it thinks fit, require the production of such material thing for its inspection." The trial Court also considered the same and commented upon the conduct of the plaintiff. 14. The contention of the appellant/plaintiff in ground No.7 of the grounds of appeal is a far fetched one and it is quite antithetical to the trite proposition of law, so to say, the learned Judge is not expected to invoke Section 73 of the Indian Evidence Act and simply make a comparison between the disputed signature with that of the admitted signatures in the Vakalat, written statement etc. The doctrine of ante litem motem should not be forgotten. The disputed signature should be compared with the signatures which emerged anterior to the disputed signature and as such, it would be wrong to expect that the Court itself should compare the disputed signature with the admitted signatures in the Vakalat, Written statement etc. The Court, half-handedly cannot assume the role of an expert. 15. The disputed signature should be compared with the signatures which emerged anterior to the disputed signature and as such, it would be wrong to expect that the Court itself should compare the disputed signature with the admitted signatures in the Vakalat, Written statement etc. The Court, half-handedly cannot assume the role of an expert. 15. At this juncture, I would like to refer to the decision of the Hon'ble Apex Court reported in (2008) 4 SCC 530 [Thiruvengadam Pillai vs. Navaneethammal and another]; certain excerpts from it would run thus: "16. When there is no doubt that court can compare the disputed handwriting/signature/finger impression with the admitted handwriting/signature/finger impression, such comparison by court without the assistance of any expert, has always been considered to be hazardous and risky. When it is said that there is no bar to a court to compare the disputed finger impression with the admitted finger impression, it goes without saying that it can record an opinion or finding on such comparison, only after an analysis of the characteristics of the admitted finger impression and after verifying whether the same characteristics are found in the disputed finger impression. The comparison of the two thumb impressions cannot be casual or by a mere glance. Further, a finding in the judgment that there appeared to be no marked differences between the admitted thumb impression and disputed thumb impression, without anything more, cannot be accepted as a valid finding that the disputed signature is of the person who has put the admitted thumb impression. Where the court finds that the disputed finger impression and admitted thumb impression are clear and where the court is in a position to identify the characteristics of fingerprints, the court may record a finding on comparison, even in the absence of an expert's opinion. But where the disputed thumb impression is smudgy, vague or very light, the court should not hazard a guess by a casual perusal. 17. The decision in MurariLal and LalitPopli should not be construed as laying a proposition that the court is bound to compare the disputed and admitted finger impressions and record a finding thereon, irrespective of the condition of the disputed finger impression. 17. The decision in MurariLal and LalitPopli should not be construed as laying a proposition that the court is bound to compare the disputed and admitted finger impressions and record a finding thereon, irrespective of the condition of the disputed finger impression. When there is a positive denial by the person who is said to have affixed his finger impression and where the finger impression in the disputed document is vague or smudgy or not clear, making it difficult for comparison, the court should hesitate to venture a decision based on its own comparison of the disputed and admitted finger impressions. Further, even in cases where the court is constrained to take up such comparison, it should make a thorough study, if necessary with the assistance of counsel, to ascertain the characteristics, similarities and dissimilarities. Necessarily, the judgment should contain the reasons for any conclusion based on comparison of the thumb impression, if it chooses to record a finding thereon. The court should avoid reaching conclusions based on a mere casual or routine glance or perusal. 19. The trial court had analysed the evidence properly and had dismissed the suit by giving cogent reasons. The first appellate court reversed it by wrongly placing onus on the defendants. Its observation that when the execution of an unregistered document put forth by the plaintiff was denied by the defendants, it was for the defendants to establish that the document was forged or concocted, is not sound proposition. The first appellate court proceeded on the basis that it is for the party who asserts something to prove that thing; and as the defendants alleged that the agreement was forged, it was for them to prove it. But the first appellate court lost sight of the fact that the party who propounds the document will have to prove it. In this case the plaintiff came to court alleging that the first defendant had executed an agreement of sale in his favour. The first defendant having denied it, the burden was on the plaintiff to prove that the first defendant had executed the agreement and not on the first defendant to prove the negative. The issues also placed the burden on the plaintiff to prove the document to be true. No doubt, the plaintiff attempted to discharge his burden by examining himself as also scribe and one of the attesting witnesses. The issues also placed the burden on the plaintiff to prove the document to be true. No doubt, the plaintiff attempted to discharge his burden by examining himself as also scribe and one of the attesting witnesses. But the various circumstances enumerated by the trial court and the High Court referred to earlier, when taken together, rightly create a doubt about the genuineness of the agreement and dislodge the effect of the evidence of Pws. 1 to 3. We therefore of the view that the decision of the High Court, reversing the decision of the first appellate Court, does not call for interference." 16. There is also one other decision rendered by me reported in 2008 (3) CTC 470 [Ganapathy Thevar v. Shanmuga Thevar]; certain excerpts from it would run thus: "14. .......The Court cannot assume the role of an expert in comparing the disputed handwriting with that of the admitted ones. No doubt, the Court as per Section 73 of the Evidence Act, in certain circumstances could exercise its power with caution. In such an event, it is the bounden duty of the Court to specify clearly as to what are the salient features based on which the finding is arrived at. 15. It is common knowledge that the science of analysing the questioned documents contemplates certain principles and theories. Here, both the Courts below were not objective in analysing the impugned handwriting. 16. No carte blanche is given to any Court to simply compare the disputed handwriting with that of the admitted handwritings and arrive at a subjective satisfaction about the similarities and dissimilarities. There should have been reasons set out for arriving at such conclusion, but here, both the Courts below have not resorted to such a procedure. The subjective satisfaction of both the Courts below cannot be taken in favour of the defendant." 17. It is therefore clear that the trial Court meticulously adhering to the legal proposition of law decided the lis warranting no interference in the appeal. I would like to observe that the trial Court out of benevolence decreed partly the specific performance, because D1 submitted to decree. It is therefore clear that the trial Court meticulously adhering to the legal proposition of law decided the lis warranting no interference in the appeal. I would like to observe that the trial Court out of benevolence decreed partly the specific performance, because D1 submitted to decree. Trite the proposition of law is that, in a suit for specific performance if there is any tinge of falsity, the plaintiff would not be entitled to specific performance, but in this case, the trial Court ignoring that principle also partly decreed the suit in favour of the plaintiff as against D1, presumably on the assumption that D1 had no objection for decreeing the suit as against him. 18. Accordingly, the point No.1 is answered to the effect that Ex.A2 was disbelieved by the trial Court correctly on sound reasons. 19. The point No.2 is answered to the effect that the trial Court was justified in rejecting the theory of joint family and the capacity of D1 to enter into the agreement to sell on behalf of the property standing in the name of D2. 20. The point No.3 is answered to the effect that there is no perversity or illegality in the judgment and decree of the trial Court and it warrants no interference. In the result, the appeal stands dismissed. However, there shall be no order as to costs.