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2014 DIGILAW 687 (MAD)

Guruswamy Naidu v. P. Kanniappa Naidu

2014-03-18

S.VIMALA

body2014
JUDGMENT 1. When the rights of subsequent purchaser will prevail over the rights of the prospective purchaser, i.e., the person, who holds a prior “agreement to sell” or On whom the burden of proof lies, i.e., with regard to payment of full consideration and payment of the same in good faith and without notice, i.e., - (a) the subsequent purchaser has paid the full value for which he has purchased the property; (b) that he paid the full value in good faith and without notice of the prior contract, i.e., the agreement of sale – whether it is on the agreement holder or on the subsequent purchaser/defendant? and 1.1. Where the witness could not be cross-examined on account of his death, what is the evidentiary value of the evidence given by him? whether the evidence can be rejected, as inadmissible, as it is not tested by cross-examination or the evidence is admissible, but the weight to be attached to such evidence should depend on the facts and circumstances of each case. 1.2. Whether the plaintiff can apply for issuance of subpoena under Order XVI Rule 14 for examination of defendants who are contesting parties on the allegations made in the plaint? 1.3. These are the issues cropping up in this appeal, which are to be answered by this Court. 2. Defendants 10 and 11 are the appellants. The plaintiff-Kanniyappa Naidu filed a suit in O.S.No.23 of 1987, seeking the relief of specific performance in respect of A and B Schedule properties. The plaintiff claimed such a relief based upon Ex.A-1-sale agreement. The trial court dismissed the suit, holding that, (a) the sale agreement under Ex.A-1 is not proved; and (b) the appellants, i.e., defendants 10 and 11 are the bona fide purchasers for value, without notice of Ex.A-1-sale agreement. 2.1. The plaintiff preferred an appeal in A.S.No.61 of 1992 and the first appellate court allowed the appeal and thus, the judgment and decree of the trial court came to be set-aside and the suit got decreed. One month time was granted to pay the balance of sale consideration before the trial court. Therefore, the purchasers have filed the second appeal. 2.2. One month time was granted to pay the balance of sale consideration before the trial court. Therefore, the purchasers have filed the second appeal. 2.2. The second appeal has been admitted on the following substantial question of law: “When the trial court has exercised its power under Section 73 of the Indian Evidence Act, in comparing the signatures of Boomi Naidu in Ex.D-2 and Ex.A-1, the non-appreciation of the said position by the lower appellate court has materially affected the judgment or not?” 3. Brief facts: The suit A and B Schedule properties belonged to Boominaidu and Chockammal. Four persons, by name, Kuppuswamy, Kishtappa, Raju and Perumal were brothers. Boominaidu is the son of Kuppuswamy, chockammal is the wife of Kishtappa and plaintiff is the son of Perumal. Boominaidu died on 06.03.1986. His legal representatives are defendants 1 to 8. After the death of Chockammal, during the pendency of the appeal, her legal representatives have been brought on record as respondents 12 and 13. R-10 and R-11/purchasers are the appellants in the second appeal. 3.1. ‘A’ schedule property belonged to Boominaidu and ‘B’ Schedule property belonged to Chockammal. The case of the plaintiff is that they executed a sale agreement (Ex.A-1) in favour of him on 15.02.1985. The case of defendants 10 and 11 is that the properties have been sold to them under the sale deeds, dated 13.09.1985 and 04.11.1985. It was an admitted fact that defendants 10 and 11, were in possession and enjoyment of the property, in pursuance of the said sale deeds. The sale agreement, dated 15.02.1985 is claimed to be ante-dated and forged. 3.2. The trial court framed the following issues: (i) Whether the sale agreement, dated 15.02.1985 is true, valid and whether it will bind the defendants? (ii) Whether the defendants have title and possession based upon sale deeds, dated 30.11.1985 and 04.11.1985? (iii) Whether the plaintiffs are entitled to the relief of specific performance? (iv) Whether defendants are the bona fide purchasers without notice of the sale agreement? 3.3. In respect of the genuineness and validity of the sale agreement, the trial court has considered the nature of evidence available to prove the sale agreement. (a) Ex.A-1 agreement has been alleged to be executed by Boominaidu and Chockammal and it is attested by D-1-Ramachandran, D-2-Jayaraman and D-3-Varadhan, who are sons of Boominaidu, i.e., one of the executors. 3.3. In respect of the genuineness and validity of the sale agreement, the trial court has considered the nature of evidence available to prove the sale agreement. (a) Ex.A-1 agreement has been alleged to be executed by Boominaidu and Chockammal and it is attested by D-1-Ramachandran, D-2-Jayaraman and D-3-Varadhan, who are sons of Boominaidu, i.e., one of the executors. The remaining two witnesses are Elumalai and Govindasamy. Those five persons, who were witnesses to Ex.A-1, sale agreement, were not examined. (b) The only witness examined on the side of the plaintiff, namely, P.W.2-Rajendran has stated that he did not know about the execution of Ex.A-1-sale agreement. He is not even a witness under Ex.A-1-sale agreement. (c) Admittedly, Boominaidu was not alive on the date of examination of the witnesses. Chockammal, even though was on record as ninth defendant, remained ex-parte and no step was taken by the plaintiffs to summon her as a witness. 3.4. Considering these circumstances, the trial court held that Ex.A-1 is not proved. 3.5. When the direct evidence to prove the execution of sale agreement, Ex.A-1, was not made available to the Court, the other option available to the Court was to compare the signature under Ex.A-1 with that of other documents, wherein the admitted signature of the executant was available. While exercising the powers under Section 73 of the Indian Evidence Act, the Court has compared the signature in Ex.A-1, with that of the signature in Ex.B-2-mortgage deed, dated 11.02.1964. The sale deeds in favour of the appellants under Exs.A-9 (original Ex.B-3), A-10 (original B-4), A-11 (original B-13) and A-12 (original B-12) were of no use, as Exs.B-3 and B-12, which were the only two original documents, did not contain the signature, but contained only the thumb impression of Boominaidu. Exs.B-4 and B-13 contained the thumb impression of Chockammal. Even though Ex.A-1 contained the thumb impression of Chockammal, no step was taken to take the admitted and disputed thumb impression of Chockammal for comparison by the Scientific expert. Though the Court can compare the signatures, but may not be competent enough to compare the thumb impressions. 3.6. Exs.B-4 and B-13 contained the thumb impression of Chockammal. Even though Ex.A-1 contained the thumb impression of Chockammal, no step was taken to take the admitted and disputed thumb impression of Chockammal for comparison by the Scientific expert. Though the Court can compare the signatures, but may not be competent enough to compare the thumb impressions. 3.6. The trial court has pointed out the omissions, i.e. the left thumb impression of Chockammal is found in the first and last pages of the agreement and there was no thumb impression found in Pages 2 to 4 of the agreement, even though there is an endorsement regarding left thumb impression of Chockammal. 3.7. The comparison of signature of Boominaidu under Ex.B-2, which is a registered document, (where the genuineness of the signature is not in dispute) with that of the signature of the Boominaidu in Ex.A-1, (where the genuineness of the signature is under dispute), would go to show that the signature of Boominaidu as found under Ex.B-2 is certainly not similar with that of the signature in Ex.A-1. The signature, as found in Ex.B-2, being found in a registered document must be attached greater importance. An effortless comparison, even without any assistance of microscope, would go to show that the person, who puts his signature under Ex.B-2, could not have been the person, who puts his signature under Ex.A-1. This important factor, when it is cumulatively considered, along with non-examination of five of the witnesses under Ex.A-1 would go to show that Ex.A-1 could not have been a true document. 4. The learned counsel for the respondents contended that non-examination of Chockammal (ninth defendant) should not be commented upon as the practice of plaintiff seeking to compel the defendant to appear as his witness has been deprecated by the High Court. In support of the proposition, the following two decisions are relied upon: A. D. Babu v. K.A. Dinachandran and Others (2013) 1 MLJ 24 “Plaintiff cannot apply for issuance of subpoena for examination of defendants who are contesting parties on the allegations made in the plaint.” B. Kaliaperumal v. Pankajavalli and Others (1999) 1 MLJ 97 “Plaintiff seeking to compel one of the defendants to appear as his witness – It is well settled that a plaintiff cannot compel the defendant to appear as his witness – such practice has to be deprecated.” 4.1. The dictum laid down in the above two cases cannot be disputed. The only issue is that the plaintiff having had the opportunity of securing five persons as attesting witnesses, he has not chosen to examine at least one of them. 5. It is contended by the learned counsel for the respondents that the finding given by the trial court with regard to signature under Ex.B-2, dated 11.02.1964, which is of the year 1964, cannot be correct, when the signature compared was of the year 1985 (15.02.1985). 5.1. Whether this contention can be accepted ? 5.2. The term ‘signature’ is defined by Chamber’s Twentieth Century Dictionary as ‘the name of a person written by himself’. There are various kinds of signatures, namely, allographic, allonymic, isographic, etc., Forgeries or imitations made by free hand tracing of another person’s signature to be used for fraudulent purposes is called isographic signature. An allograph is a writing especially the signature, for another, in which, the writer makes no attempt to copy the style or design of the person whose name he writes. Thus, the writer produces such writing in his own way. If a person assumes the name of another person or a purely fictitious name is created and a signature is put, such a signature is known as allonym. 5.3. It is the basic principle applied while making comparison of signature that even the two specimen of handwriting, when written by the same person, can never be replicas and a measure of judgment is called for, on the part of the examiner. The examiner is expected to decide the following two aspects, as explained in the book ‘SUSPECTED DOCUMENTS – THE SCIENTIFIC EXAMINATION’, by WILSON R. HARRISON, in First Indian Reprint 1996: “(i) The differences in the handwriting being compared can be regarded as being due to variation, or if they are indicative of different authorship; (ii) In the absence of any consistent differences which cannot reasonably be attributed to natural variation, the sum total of resemblances in letter design and in details of structure uncovered by the examination can be explained only on the grounds that the writings are of common authorship, and that the possibility of the resemblances occurring by chance can be discounted.” 5.4. The writings in this case are indicative of different authorship and this is evident by comparison of the characteristics and parameters. The writings in this case are indicative of different authorship and this is evident by comparison of the characteristics and parameters. Therefore, the trial court is right in concluding that the sale agreement is not proved to be a genuine agreement. 5.5. The first appellate court, while reversing the judgment of the trial court, has mainly relied upon the evidence of D.W.2, who is the 11th defendant, and has given a finding that the admission proves the genuineness of the sale agreement. The admission, that is relied upon, reads thus: 5.6. This is the part of evidence relied upon by the Courts below. But the part of the evidence omitted to be considered, which, if cumulatively considered would lead to a different conclusion. The part of the evidence that was omitted to be considered was this: 5.7. Whether this truncated portion of the evidence, truncated in-between the evidence regarding signature and writing (lines), having been interpreted in a truncated way, would amount to admission and whether that evidence would be sufficient to prove the execution of Ex.A-1-sale agreement is the issue to the considered. 5.8. The word ‘writing’ and the word ‘signature’ are not synonymous, but they are two different concepts. The word ‘signature’ means, the writing of the name by the person himself. The word ‘writing’ means, a system of graphic symbols that can be used to convey meaning. Therefore, the writing may be by the same person or by any other person. What is stated by the witness is, he saw only the writing, i.e., the name of the person concerned in the document. He did not say that he saw the executant signing the document. In other words, it is not in evidence that the name of Boominaidu, as found in the document, was the signature of Boominaidu signifying his ascent to the content of the document. Therefore, the misconstruction and misinterpretation placed upon the evidence of D.W.2 cannot be accepted to be correct. 6. An argument has been advanced that evidence of D.W.2 was not tested by cross-examination and therefore, the evidence of D.W.2 should be discarded. This proposition cannot be accepted, in view of the dictum laid down in the decision reported in Mt. Therefore, the misconstruction and misinterpretation placed upon the evidence of D.W.2 cannot be accepted to be correct. 6. An argument has been advanced that evidence of D.W.2 was not tested by cross-examination and therefore, the evidence of D.W.2 should be discarded. This proposition cannot be accepted, in view of the dictum laid down in the decision reported in Mt. Horil Kuer and Another v. Rajab Ali and Others, AIR 1936 Patna 34, whereunder it has been held that where the witness dies or falls ill before cross-examination, his evidence will be admissible though its weight may be slight and that weight to be attached to such evidence should depend on the circumstances of each case. In this case, the First Appellate Court has considered the fact that the evidence of D.W.2 has lent support to the evidence of witness, Govindasamy, who was originally examined as P.W.2. Under such circumstances, either the evidence of D.W.2 can be accepted, because it corroborated the evidence of P.W.2, or if the evidence of P.W.2 alone is sufficient, then the evidence of D.W.2 can be ignored as unnecessary. 7. The learned counsel for the respondents has relied upon the decision reported in Veeramalai Vanniar (died) by L.Rs. v. Thadikara Vanniar and Others, (1968) 1 MLJ 437 , wherein it has been held that the burden of proof is upon the subsequent purchaser to establish that the purchaser have paid full value for which he purchased the property and that the purchaser paid it in good faith and without notice of the prior agreement. It is submitted that the subsequent purchaser has not discharged the burden and therefore, the second appeal must be dismissed. It is the specific contention of the learned counsel for the respondents that the appellants could not have been the bona fide purchasers for value as there is no proof to show that the appellants discharged the earlier mortgage said to have been executed by the vendors. 7.1. It is the reply of the learned counsel for the appellants that when the purchaser himself is a mortgagee, the mortgage merges with the purchase and in order to prove that the mortgage has been discharged, the appellants had produced the original mortgage deed itself under Ex.B-10 and therefore, the arguments of the learned counsel for the respondents cannot hold any water. 7.2. 7.2. The learned counsel for the respondents relied upon the decision reported in Kamalavathy v. Balasundaram and Others, 2011-1-L.W.-940, wherein the indicators towards bona fides of the purchase has been laid down. The relevant observation reads as under: “Making of necessary enquiries and obtaining of the encumbrance certificate will indicate the bona fide of the purchaser and a purchaser who has ventured into the transaction without observing the above said formalities cannot be said to be a bona fide purchaser coming within the exception to Section 19(b) of the Specific Relief Act.” 7.3. If the conduct of the appellants/defendants are examined in the light of the dictum laid down in the above case, it would be clear that the appellants are bona fide purchasers. It is stated in the evidence of D.W.2 – Govindarajulu, that a) Chockammal had executed a mortgage deed in favour of him and in pursuance of that he was in possession of the property, which is known to the next land owner plaintiff; b) in the sale deed obtained from Boominaidu, his sons signed as attesting witnesses; c) the plaintiff did not inform him anything about the existence of sale agreement; d) he purchased the property only after obtaining encumbrance certificate. 7.4. It is nowhere denied by the vendors that full amount of purchase money is not paid. Moreover, when there is a finding that the sale agreement is a forged one, the question of the purchase subsequent to the sale agreement does not arise. Even assuming that the sale agreement is true, there is no evidence to show that the appellants had knowledge of the prior sale agreement. Hence, the burden of proof has been discharged by the appellants. 7.5. Moreover, it is pointed out by the learned counsel for the appellants that, if really Ex.A-1 sale agreement is true there should have been a condition regarding discharge of mortgage which did not obviously finds place under Ex.A-1. Therefore, as contended by the learned counsel for the appellants the non-mentioning of discharge regarding the mortgage money under Ex.A-1 is against the case of the respondents and not much against the case of the appellants. 7.6. It is also pointed out that the parent document of title under Ex.B-1 has been produced only by the appellants, which again is a supplemental point to show that the transaction should have been a bona fide transaction. 7.6. It is also pointed out that the parent document of title under Ex.B-1 has been produced only by the appellants, which again is a supplemental point to show that the transaction should have been a bona fide transaction. Ex.B-1 is the original settlement deed executed by Kittapanaidu in favour of his wife, Nagammal. Under the same settlement deed, after the lifetime of Nagammal, full interest has been given to his daughter, Sukkammal. 8. It is the contention of the learned counsel for the respondents that the sale deed could not have been a true document, as the stamp papers in which the sale deed has been written has been shown to have been purchased during different periods. This factor alone cannot be a decessive factor as all the stamp papers have been issued by the same stamp vendor. May be because of non-availability of the stamp paper, he might have issued stamp papers of the earlier years and that cannot be a factor to conclude that the entire sale deed is not a true document. Court should cumulatively consider all the facts and circumstances to find out whether the sale deed could be true or not. As already discussed, as the original document of title has been produced from the custody of the purchaser and also the original mortgage deed executed by the vendor, in favour of the purchaser, has been produced from the custody of the appellants, one may conclude that the sale must be a bona fide one. 9. The main contention of the learned counsel for the respondents is that the sale deeds, under Ex.B-3, dated 13.09.1985, and Exs.B-4, B-12 and B-13, each dated 04.11.1985, cannot prevail over Ex.A-1-sale agreement, dated 15.02.1985, as they are subsequent in point of time and they do not reflect that they are the bona fide purchase. It is contended that Boominaidu executed an agreement to sell in favour of Guruswamy Naidu and Chockammal executed an agreement to sell in favour of Govindaraji Naidu and out of these two sale agreements, which preceded the sale deeds, one sale agreement alone has been produced and the other one is not produced. The non-production of sale agreement is immaterial, when the sale deed itself has been produced. 9.1. The non-production of sale agreement is immaterial, when the sale deed itself has been produced. 9.1. Under Ex.A-1-sale agreement the total sale consideration fixed is Rs.27,540/-; advance paid was Rs.2,000/-; the balance of Rs.25,540/- is payable within a period of three months from the date of execution of agreement. 9.2. The contention of the appellants was that, time was the essence of the contract and that the plaintiff did not take any steps to get the sale deed executed till 1996 and only after the death of Boominaidu, on 06.06.1986, the plaintiff has chosen to file the suit. Learned counsel for the respondents submitted that in respect of transaction relating to immovable property, time should not be construed as essence of the contract. 9.3. There is no hard and fast rule that time is not the essence of the contract in respect of transactions governing immovable property. Even in respect of immovable property, time can be made as essence of the contract and whether time was the essence of contract or not is a matter depending upon the terms of agreement between the parties and the recitals made relating to that. The trial court has rightly pointed out that from 15.02.1985 to 14.12.1996, the plaintiff has been keeping quiet and that he did not prove that he was ready and willing to perform his part of the contract. The long silence on the part of the plaintiff has rightly been interpreted by the trial Court as signifying the forgery of the sale agreement. It is also pointed out that the properties of the plaintiff and the properties, which are the subject matter of litigation, are lying adjacent to each other and that the plaintiff and defendants 1 to 9 are also living in nearby houses. Therefore, the contention of the plaintiff that he was not aware of the sale in favour of the appellants could not be believed. This is the justifiable conclusion reached by the trial Court, which has been unreasonably upset by the First Appellate Court. 10. In the result, the Second Appeal is allowed. The judgment and decree of the first appellate court in A.S.No.61 of 1992 are set-aside and the judgment and decree of the trial court in O.S.No.23 of 1987 dismissing the suit is restored. No costs. Second appeal allowed.