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2015 DIGILAW 441 (KAR)

M. S. Vishwanatha Rao v. Rathnabai

2015-04-16

A.V.CHANDRASHEKARA

body2015
JUDGMENT : A.V. Chandrashekara, J. 1. This appeal is filed under Section 100 of CPC challenging the concurrent findings passed by the Court of the Civil Judge (Jr. Dn.) and Addl. JMFC, Tarikere in O.S. 241/1990 and confirmed by the Court of the FTC, Tarikere in R.A. 71/2004. 2. Parties will be referred to as per their ranking before the Trial Court. 3. Suit had been filed by the plaintiff against one M.S. Vishwanatha Rao, brother of the plaintiff for the relief of specific performance on the basis of an agreement of sale dated 25.6.1986. He is stated to have executed a regular sale deed in his favour for consideration of Rs. 25,000/-. According to the plaintiff, defendant is stated to have executed an agreement of sale dated 25.6.1986 in his favour by receiving a sum of Rs. 15,000/- as advance out of the agreed consideration on the same day and agreed to receive balance consideration of Rs. 10,000/- and to execute the regular sale deed within one year from the date of agreement of sale i.e., 25.6.1986. Since defendant did not come forward to execute regular sale deed, suit was filed on 23.6.1990 with a request to direct the defendant to perform his part of contract by executing the regular sale deed by receiving balance consideration of Rs. 10,000/-. 4. The suit was contested by the defendant by filing detailed written statement. He has chosen to deny all the contents of the plaint emphatically and defendant has called upon the plaintiff to prove the contents of the plaint. He has denied the agreement of sale and receipt of Rs. 15,000/- as partial consideration and agreed to execute the regular sale deed within one year from the date of agreement of sale. Agreement of sale relied upon by the plaintiff is a concocted document. According to the defendant, plaintiff has failed to prove the readiness and willingness of the defendant. 5. With these pleadings, following issues came to be framed by the Trial Court: "1) Whether plaintiff proves that defendant entered into agreement to sell the suit schedule property for Rs. 25,000/- in favour of the plaintiff on 25.6.1986? 2) Whether the plaintiff proves that he paid the advance amount of Rs. 15,000/- and agreed to pay the balance of Rs. 10,000/- at the time of registration of the sale deed? 25,000/- in favour of the plaintiff on 25.6.1986? 2) Whether the plaintiff proves that he paid the advance amount of Rs. 15,000/- and agreed to pay the balance of Rs. 10,000/- at the time of registration of the sale deed? 3) Whether the plaintiff further proves that the defendants agreed to execute the sale deed within one year from the date of agreement? 4) Whether plaintiff further proves that he is over ready and even now he is read and willing to perform his part of the contract? 5) Whether plaintiff is entitled to the relief of specific performance as prayed for? 6) Alternatively whether the plaintiff is entitled for the refund of Rs. 15,000/- with interest at 18% from the date of payment? 7) Whether defendant proves that the suit is barred by time? 8) To what decree or order the parties are entitled to?" 6. Plaintiff himself is examined as PW-1 K. Ramaswamy, the scribe is examined as PW-2. Defendant is examined as D.W.-1. On behalf of the plaintiff, agreement of sale has been marked as Ex. P-1. After assessing the oral and documentary evidence placed on record, the learned Judge has answered issues 1 to 5 in the affirmative, issue 6 is answered as having not survived for consideration and issue No. 4 is answered in the negative. Ultimately, suit is decreed as against which an appeal was filed under Section 96 of CPC before the Court of Sr. Civil Judge and same was withdrawn and transferred to FTC, Tarikere and numbered as R.A. 71/2004. 7. The learned Judge of the First Appellate Court has dismissed the appeal and has upheld the judgment of the First Appellate Court. Points formulated by the First Appellate Court for consideration is found in pages 5 and 6 of its judgment. They are as follows:-- "1) Whether the appellant has made out sufficient grounds for permitting him to produce the document and lead additional evidence? 2) Whether late M.S. Nagaraj Rao has proved that due execution of agreement dated 25.6.1986 by the appellant/defendant? 3) Whether the he has proved the payment of Rs. 15,000/- to the appellant as part consideration? 4) Whether he has proved that he was always ready and willing to perform his part of contract and that the breach was commuted by the appellant-defendant? 5) Whether substantial grounds exist for interfering with the impugned judgment and decree? 3) Whether the he has proved the payment of Rs. 15,000/- to the appellant as part consideration? 4) Whether he has proved that he was always ready and willing to perform his part of contract and that the breach was commuted by the appellant-defendant? 5) Whether substantial grounds exist for interfering with the impugned judgment and decree? 6) What order?" 8. After hearing the learned counsel for the parties, the learned Judge of the First Appellate Court has dismissed the appeal. Being aggrieved by the same, the present appeal is filed. 9. This appeal has not been admitted by oversight and the connected appeals have already been admitted on 1.4.2010 by framing substantial question of law. Hence, the present appeal needs to be considered in the light of the following substantial question of law framed today: "Whether both the Trial Court as well as First Appellate Court have committed serious illegality and perversity in not analyzing the oral and documentary evidence in regard to specific performance in right perspective?" 10. Heard the learned counsel for the appellant and perused the records. 11. As already discussed, counsel for respondent Nos. 1 and 4 is absent, other respondents are served and unrepresented. Entire case is based on Ex. P-1, agreement of sale stated to have been executed in favour of plaintiff by the defendant on 25.6.1986. Ex. P-1 is stated to have been written by K. Ramaswamy, licence deed writer of Tarikere. 12. Heard Mr. Shivappa, learned senior counsel and perused records. As already discussed, learned counsel for respondents 1 and 4 is absent, and respondents 2 and 3 are duly served and unrepresented. 13. The entire case is based on Ex. P1-agreement of sale said to have been executed by this appellant in favour of the deceased plaintiff on 25.6.1986. Ex. P1 is stated to have been written by Ramaswamy, licensed deed writer of Tarikere. The person who relies on the agreement of sale is not only expected to prove the due execution of the document, but is also expected to prove his readiness and willingness to complete the transaction so as to bind the person who has executed the agreement. Apart from this, the plaintiff is expected to prove that agreement of sale is an out and out agreement of sale. Apart from this, the plaintiff is expected to prove that agreement of sale is an out and out agreement of sale. The principles to this effect have been reiterated by a Division Bench of this court in the case of Shantha Kumari v. V.N. Sathyanarayana (RFA 567/2007). 14. In order to ascertain the intention of the parties, the surrounding circumstances will have to be looked into by the court dealing with a suit for specific performance. In the present case, the defendant has emphatically denied the very execution of the agreement of sale and also disputed its contents. Apart from this, he has emphatically denied receipt of Rs. 15,000/- as partial consideration and also the clause which discloses that the sale deed would be executed within one year from the date of agreement. In a suit for specific performance, the plaintiff is expected to prove readiness and willingness to perform his part of the contract as contemplated under Section 16(c) of the Specific Relief Act, 1963. Readiness is sought to be proved in order to exhibit financial capacity to have the regular sale deed executed. Willingness is to be proved in order to show that the sale deed will be got executed within a reasonable time. 15. The property sought to be sold by the defendant, according to the plaintiff, is the property allotted to him on the very same day under a registered partition deed dated 25.6.1986. The property sought to be purchased by the plaintiff from the defendant measures 11.5 ft. east-west and 75 ft. north-south connected with a backyard and the same is situated in Tarikere town. If a sum of Rs. 10,000/- was the balance consideration to be paid by the plaintiff, what steps were taken by him to pay the said sum to get the sale deed executed, are not forthcoming. 16. Normally a suit for specific performance of a contract should be preceded by a prior notice expressing readiness and willingness to have the sale deed by performing his/her part of the contract. In the present case, no such notice is forthcoming. Therefore it is better to scan the evidence of P.W. 1. 17. 16. Normally a suit for specific performance of a contract should be preceded by a prior notice expressing readiness and willingness to have the sale deed by performing his/her part of the contract. In the present case, no such notice is forthcoming. Therefore it is better to scan the evidence of P.W. 1. 17. P.W. 1-plaintiff has deposed in his examination-in-chief that he met the defendant several times earlier with a request to execute regular sale deed by receiving the balance consideration and he went on seeking time on one pretext or the other and did not execute the sale deed. The time fixed in the agreement of sale, according to the plaintiff, was one year. The dates on which he approached the defendant with such request to executed sale deed are not at all forthcoming in his oral evidence. If he had really met the defendant several times after one year and if the defendant had gone on giving false replies, that itself would have been the notice for the plaintiff about his refusal to perform his part of the contract. 18. Admittedly the suit came to be filed on the last day of limitation excluding one year found in the agreement of sale. According to the plaintiff, the defendant executed the agreement of sale agreeing to sell the suit property for Rs. 25,000/- on 25.6.1986, i.e. the very day on which the partition deed came into being, whereas in his cross-examination, he has deposed that 3-4 days after execution of the partition deed, the defendant executed the agreement of sale. If this part of the evidence were to be taken into consideration, the very execution of the agreement of sale appears to be highly doubtful. If the agreement of sale was executed 3-4 days after the partition deed, it is ununderstandable how the date in Ex. P1 would be mentioned as 25.6.1986. Mere examination of the scribe would not amount to due execution of the agreement of sale. The signatures of two persons are forthcoming in the second page of Ex. P1 as attestors. None of them have been examined before the trial court or first appellate court. As already discussed, there is a glaring inconsistency with regard to the very execution of the agreement of sale in the very evidence of P.W. 1. If really Ex. The signatures of two persons are forthcoming in the second page of Ex. P1 as attestors. None of them have been examined before the trial court or first appellate court. As already discussed, there is a glaring inconsistency with regard to the very execution of the agreement of sale in the very evidence of P.W. 1. If really Ex. P1 was executed on the very day of effecting partition deed, the contents in Ex. P1 would have been as follows:-"I have got this property as my share today as per the partition deed executed today". 19. A Bench consisting of three Hon'ble Judges of the Supreme Court in the case of Ahmadsahab Abdul Mulla (Dead Byproposed L.Rs.) v. Bibijan and Others [2009] 5 SCC 462 has elaborately discussed the provisions of Article 54(1) and (2) of the Limitation Act. What is held in the said decision is that the expression 'the date fixed for appearance' is crystallized opinion and this is clear from the fact that the second part 'the time from which the contract begins to run' refers to a case where no date is fixed. Paragraph 7 of the said judgment is very relevant and it is extracted below: "7. The inevitable conclusion is that the expression 'date fixed for the performance' is a crystallized notion. This is clear from the fact that the second part "time from which period begins to run" refers to a case where no such date is fixed. To put it differently, when date is fixed it means that there is a definite date fixed for doing a particular act. Even in the second part the stress is on 'when the plaintiff has notice that performance is refused'. Here again, there is a definite point of time, when the plaintiff notices the refusal. In that sense both the parts refer to definite dates. So, there is no question of finding out an intention from other circumstances. Whether the date was fixed or not the plaintiff had notice that performance is refused and the date thereof are to be established with reference to materials and evidence to be brought on record. The expression 'date' used in Article 54 of the Schedule to the Act definitely is suggestive of a specified date in the calendar. We answer the reference accordingly. The expression 'date' used in Article 54 of the Schedule to the Act definitely is suggestive of a specified date in the calendar. We answer the reference accordingly. The matter shall now be placed before the Division Bench for deciding the issue on merits." 20. Whether the date was fixed or not, the plaintiff had notice that performance was refused when the defendant went on giving convincing replies on several occasions. Therefore, the dates of his demand ought to have been established with reference to materials and evidence should have been brought on record. No such attempt has been made in this case by the plaintiff who wants the court to grant the equitable relief of specific performance which is a discretionary relief. Therefore the expression 'date' used in Article 54 of the Limitation Act, as held by the Hon'ble apex court in the case of Ahmadsahab Abdul (supra) definitely suggests of a specific date. 21. Admittedly the property in question is an urban property situated in Tarikere town which is on the highway from Bengaluru to Karwar via Shivamogga. The Hon'ble apex court in the case of Sharadamani Kandappan v. Mrs. S. Rajalakshmi & Others ( AIR 2011 SC 3234 ) has considered the aspect of time being the essence of the contract in respect of immovable properties. Relying upon the earlier decision, the Hon'ble apex court has held in paragraph 27 of the judgment as follows: "27. A correct perspective relating to the question whether time is not of the essence of the contract in contracts relating to immovable property, is given by this court in K.S. Vidyanadam and Others v. Vairavan (1997) 3 SCC 1 (by Jeevan Reddy J. who incidentally was a member of the Constitution Bench in Chand Rani). This Court observed: "It has been consistently held by the courts in India, following certain early English decisions, that in the case of agreement of sale relating to immovable property, time is not of the essence of the contract unless specifically provided to that effect. This Court observed: "It has been consistently held by the courts in India, following certain early English decisions, that in the case of agreement of sale relating to immovable property, time is not of the essence of the contract unless specifically provided to that effect. In the case of urban properties in India, it is well-known that their prices have been going up sharply over the last few decades - particularly after 1973..........We cannot be oblivious to the reality and the reality is constant and continuous rise in the values of urban properties - fuelled by large scale migration of people from rural areas to urban centres and by inflation. Indeed, we are inclined to think that the rigor of the rule evolved by courts that time is not of the essence of the contract in the case of immovable properties - evolved in times when prices and values were stable and inflation was unknown - requires to be relaxed, if not modified, particularly in the case of urban immovable properties. It is high time, we do so." (emphasis supplied) Therefore there is an urgent need to revisit the principle that time is not of the essence in contracts relating to immovable properties and also explain the current position of law with regard to contracts relating to immovable property made after 1975, in view of the changed circumstances arising from inflation and steep increase in prices. We do not propose to undertake that exercise in this case, nor referring the matter to larger bench as we have held on facts in this case that time is the essence of the contract, even with reference to the principles in Chand Rani and other cases. Be that as it may." 22. As rightly pointed out by the learned senior counsel, Mr. Shivappa, Ex. P1 is silent about the purpose for which it was executed in favour of the plaintiff. As further pointed out by him, normally the purpose for which the sale transaction would be executed would find place in the document and that is absent. There is a lot of force in the submission so made by the learned senior counsel. Apart from this, the defendant who is examined as D.W. 1, has specifically denied the very execution of the agreement of sale and the signature thereon. When the signature was confronted to him as found in Ex. There is a lot of force in the submission so made by the learned senior counsel. Apart from this, the defendant who is examined as D.W. 1, has specifically denied the very execution of the agreement of sale and the signature thereon. When the signature was confronted to him as found in Ex. P1, he has emphatically denied it. There was a civil dispute between them in relation to the very partition deed, it is ununderstandable as to how he would come forward to execute an agreement of sale in favour of the plaintiff on the very same day. This circumstance has not been properly analyzed by both the courts below. 23. One cannot forget that a civil case will have to be decided on the basis of broad preponderance of probabilities. Therefore all surrounding circumstances will have to be taken into consideration. The trial court and the first appellate court have placed reliance on the report said to have been submitted by the handwriting expert after examining the disputed signature found in Ex. P1 with the admitted signature of the defendant. Both the courts have held that the defendant who has denied the very authenticity of his signature on Ex. P2 should have taken steps to summon the author of the report. The approach so adopted by both the courts is apparently incorrect and improper. 24. When the defendant has emphatically denied the signature found in Ex. P1, the plaintiff took steps to get it compared. Mere submission of a report by the handwriting expert is not enough. The author of the said report should have been examined by the plaintiff and then only the defendant could have cross-examined him. In the hierarchy of expert's evidence, the evidence of a handwriting expert is on the lower hierarchy. It is not a sure science like DNA test or finger print test. It is not the similarity which is relevant where the authenticity of signature or handwriting is in dispute, rather it is the dissimilarity which will have to be taken into consideration by evaluating the evidence of the expert. 25. This Court in the decision reported in AIR 1962 Mys. L.J. 53 (Ravjappa v. Nilakanta Rao and Others) (DB), it is specifically held that dissimilar notices are important while evaluating evidence of a handwriting expert. 25. This Court in the decision reported in AIR 1962 Mys. L.J. 53 (Ravjappa v. Nilakanta Rao and Others) (DB), it is specifically held that dissimilar notices are important while evaluating evidence of a handwriting expert. Paragraph 23 of the judgment is very relevant and it is reproduced below: "In examining a disputed document, the true test is not the extent of the similarities observed when compared with genuine documents, as forged documents usually are good imitations of genuine documents, but the nature and extent of the dissimilarities noticed. It is these differences which expose the true character of the document in question." In the instant case, even though the defendant has been cross-examined at length, nothing useful has been elicited form his mouth to discredit his version so far as his stand in the written statement is concerned. Suffice to state that the evidence adduced on behalf of the plaintiff falls short of the requirement and he has failed to discharge the initial burden cast on him, both in regard to the proof of the agreement of sale marked as Ex. P1 as well as his readiness and willingness to complete the transaction. Even otherwise, the suit is barred by time and also suffers from serious laches in view of the decision quoted above. 26. Viewed from any angle, both the courts below have adopted wrong approach to the real state of affairs and have not analyzed the oral and documentary evidence in right perspective. Evidence is not assessed on the touch stone of intrinsic probabilities, as a result of which injustice is caused to the appellant. Therefore, the second appellate court is entitled to interfere with the judgment of the trial court as well as the first appellate court in spite of concurrent findings. The findings so given by the trial court and first appellate court are the result of concurrent errors with regard to the factual aspects relating to the proof of Ex. P1 and readiness and willingness to complete the transaction. Accordingly the appeal is to be allowed and the judgment of the courts below are liable to be set aside. Consequently the substantial question of law is answered in the affirmative. 27. In the result, the following order is passed: ORDER The appeal is allowed. P1 and readiness and willingness to complete the transaction. Accordingly the appeal is to be allowed and the judgment of the courts below are liable to be set aside. Consequently the substantial question of law is answered in the affirmative. 27. In the result, the following order is passed: ORDER The appeal is allowed. The judgment in O.S. 241/1990 and confirmed by the Court of the Fast Track Court, Tarikere, in R.A. 71/2004 is set aside. Consequently the suit of the plaintiff stands dismissed. Parties to bear their own costs.