Surendra S/O Anandrao Wankhede vs Smt. Chandrabhaga Wd/O Dhondba ...
2017 Latest Caselaw 5858 Bom

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                           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                     NAGPUR BENCH : NAGPUR.


                                              SECOND APPEAL NO.505 OF 2011

               APPELLANT:                             Surendra   son   of   Anandrao   Wankhede,
                                                      Aged about 53 years, Occ. Agriculturist,
               (Ori. Plaintiff) 
                                                      Resident   of   Kandri,   Kanhan,   District
                                                      Nagpur.
                                                                     
                                                        
                                                           -VERSUS-


               RESPONDENTS: 1.                                         Smt. Chandrabhaga widow of Dhondba
               (Ori. Defendants)                                       Wankhede,   Aged   about   66   years,   C/o
                                                                       Shadeo Rangari, near Corporation Well,
                                                                       P.O. Panchasheel Nagar, Nagpur (Dead).
                                                       2.              Smt.   Gayabai   wife   of   Shadeo   Rangari,
                                                                       Aged about Major, Occ.: Agriculturist,
                                                       3.              Shri   Chandramani   Son   of   Shadeo
                                                                       Rangari,   Aged   about   Major,   Occ.   :
                                                                       Agriculturist,
                                                                       Respondent Nos.2 and 3 are resident of
                                                                       near   Corporation   Well,   Baba   Budha
                                                      Nagar, P.O. Panchasheel Nagar, Nagpur.
                                                                                                                       

              Shri A. Shelat, Advocate for the appellant.
              Shri M. B. Naidu, Advocate for the respondent nos.2 & 3.



                                                                CORAM: A.S. CHANDURKAR, J.

DATED: AUGUST 11, 2017.

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              ORAL JUDGMENT :  

1. This appeal has been filed by the original plaintiff who

is aggrieved by the decree passed by the trial Court refusing the

relief of specific performance and granting the alternate relief of

refund of earnest amount. Said decree has been affirmed by the

appellate Court.

2. The brief facts necessary for deciding the appeal are

that according to the plaintiff, he was an agriculturist and was

owning agricultural land. The defendant no.1 who was the owner

of Survey No.40 admeasuring 4 ½ acres situated at mouza Narsala

entered into an agreement to sell the said land for consideration of

Rs.1,71,000/-. This agreement is dated 6-4-1993. The earnest

amount paid was Rs.10,000/- and the sale deed was to be

executed within a period of three months from said date.

According to the plaintiff, the possession of the suit land was

delivered to him on the date of the agreement. After the said

agreement, the plaintiff requested the defendant no.1 to execute

the sale deed, but this was avoided by her. The plaintiff claims

that the defendant no.1 informed him that her family was in some

trouble and therefore, she was in need of Rs.40,000/-.

Accordingly, on 25-6-1993 an amount of Rs.40,000/- was further

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paid to the defendant no.1 who acknowledged the same in writing

and by putting her thumb impression. The period to execute the

sale deed was extended till 30-10-1994. As the defendant no.1

refused to complete the transaction,the plaintiff on 31-10-1994

filed suit for specific performance.

3. In the written statement filed on behalf of the

defendants, it was pleaded that the suit field was the ancestral

property having been purchased by the husband of the defendant

no.1 along with her on 11-5-1949. The entire consideration was

paid by her husband as the defendant no.1 had no other source of

income. According to the defendants, the plaintiff was the nephew

of the defendant no.1 and hence, in view of that relationship, a

transaction dated 6-4-1993 was entered into. It was pleaded that

the defendant no.1 was an illiterate lady and in view of the

fiduciary relationship between the parties, the plaintiff had taken

advantage of the situation. The original agreement dated 6-4-1993

was not placed on record but instead a different document was

filed on record. It was denied that the plaintiff had taken any

steps to complete the transaction. The added portion in the

agreement dated 25-6-1993 was denied by the said defendants. It

was, therefore, prayed that the suit was liable to be dismissed.

              4                        The   trial   Court   after   considering   the   evidence   on





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record came to the conclusion that the agreement dated 6-4-1993

and payment of Rs.10,000/- to the defendant no.1 was duly

proved. It, however, held that the payment of Rs.40,000/- to the

defendant no.1 on 25-6-1993 was not proved. It then held that the

plaintiff was not ready and willing to perform his part of the

contract. On account of the material alterations, the contract

dated 6-4-1993 became void. The trial Court, therefore, refused to

grant the relief of specific performance but instead directed the

refund of earnest amount. The first appellate Court confirmed the

said decree.

5. This appeal was admitted on the following substantial

question of law:

Whether the Courts below have committed an error of law in holding that the plaintiff was required to prove the contents of the additions below the agreement to sell at Exhibit-114?

6. Shri A. Shelat, learned Counsel for the appellant -

plaintiff submitted that the agreement dated 6-4-1993 was held to

be duly proved by both the Courts. Though the defendant no.1

had put her thumb impression on the added portion of the

agreement dated 25-6-1993 by which the amount of Rs.40,000/-

was further paid and the period to execute the sale deed was

extended, the defendant no.1 denied putting her thumb

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impression. The plaintiff was required to take various steps to

compel the defendant no.1 to give a specimen of her thumb

impression. After she was so directed by the trial Court her

specimen thumb impression was taken and the hand writing

expert gave his report that the thumb impression on the added

portion dated 25-6-1993 matched with the specimen thumb

impression. He, therefore, submitted that once it was found that

the defendant no.1 had put her thumb impression on the added

portion of the agreement, it was not necessary to again prove the

contents of that added portion. In fact, it was for the defendant

no.1 to explain as to how she had put her thumb impression on the

added portion of the agreement. According to him, the agreement

at Exhibit-114 was duly proved in its entirety and, therefore, both

the Courts committed an error while holding otherwise. He

referred to the evidence on record to indicate the manner in which

payment of Rs.40,000/- was made and the time to complete the

transaction was extended. Except bare denial in the written

statement, there was no pleading by the defendant no.1 to explain

the presence of her thumb impression. In that regard, the learned

Counsel placed reliance on the following decisions.

(1) Shri Jugalkishore Jiwandas Arora vs. Shri Sunil Vinayakrao Kokje & anr. 2006(6) ALL MR 576.

(2) Asudamal vs. Kisanrao 2003(4) Mh.L.J. 134.

              (3)                      Dalchand Mulchand and others vs. Hasanbi W/o 




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Ali Razakhan and others AIR 1938 Nagpur 152.

(4) Alapati Sivaramkrishnayya v. Alapati Kasiviswanadham and others AIR 1957 Andh Pra.

(5) Dattatraya v. Rangnath AIR 1971 SC 2548.

(6) Narbada Devi Gupta v. Birendra Kumar Jaiswal and anr. AIR 2004 SC 175.

7. It was then submitted that the agreement having been

duly proved, the suit was immediately filed on 31-10-1994 which

was immediately after the date fixed for executing the sale deed.

The plaintiff was always ready and willing to perform his part of

the agreement. The appellate Court rightly held that the plaintiff

was always ready and willing perform his part of the agreement.

The payment of Rs.40,000/- was also proved and merely because

witnesses to the added portion were not examined, the same

would not take away its legal effect. It was not necessary to

examine the said witnesses as the amount of Rs.40,000/- was not

paid in their presence. It was then submitted that as the

agreement has been proved and it was also found that the plaintiff

was ready and willing to perform his part of the agreement, the

decree for specific performance deserves to be granted. Even if it

was assumed that the defendant no.1 had purchased the suit

property along with her husband, a decree to the extent of the

share of the defendant no.1 could always be passed. According to

him, the defendant no.1 had 3/4th share in the suit property. For

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said purpose, the learned Counsel placed reliance on the decision

in Kartar Singh v. Harjinder Singh and others AIR 990 SC 854. It

was, therefore, submitted that the plaintiff was entitled for a

decree of specific performance.

8. Shri M. B. Naidu, learned Counsel for the respondents

opposed the aforesaid submissions. According to him, though it

was the case of the plaintiff that the defendant no.1 was the sole

owner of the suit property, the defendant Nos.1 & 2 were joined as

the defendants. He submitted that the plaintiff being the nephew

of the defendant no.1, he was aware that the suit property was a

joint family property and hence, the other sharers were also

joined as defendants. According to him, by virtue of the amended

provisions of the Maharashtra Stamp Act, the agreement in

question was not sufficiently stamped as required. Though it was

claimed that the plaintiff had been put in possession on the basis

of the agreement, for want of adequate stamp duty, it could not be

taken into consideration. He then submitted that the added

portion of the agreement bearing the date 25-6-1993 and its

contents were not duly proved. According to him, as per the order

below Exhibit-110, the agreement was exhibited to the extent of

the portion scribed on 6-4-1993. As the defendant no.1 was an

illiterate lady and there was a dispute raised with regard to the

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contents of the added portion, it was necessary to prove the

contents of that portion. Even if it was assumed that the hand

writing experts had held both the thumb impressions to belong to

the defendant no.1, that did not dispense with the necessity of

proving the contents preceding it. He submitted that a false story

had been cooked up by the plaintiff that due to disputes in the

family, the defendant no.1 was in need of Rs.40,000/-. The

alleged arrest of the family members was in July 1993 while the

added portion was alleged to have been scribed on 25-6-1993. He,

therefore, submitted that as the contents of the added portion

were not proved, the evidence given by the experts with regard to

that thumb impression did not have any further value. The

learned Counsel then submitted that there being various

inconsistencies in evidence of the plaintiff, it was clear that he had

not approached to the Court with clean hands and, therefore, not

entitled for the discretionary relief of specific performance.

Moreover, in absence of any consent being obtained by other co-

sharers the agreement itself could not be acted upon. It was urged

that no steps whatsoever were taken by the plaintiff for completing

the transaction. No notice was ever issued to demonstrate

readiness and willingness to perform the agreement. The

witnesses in whose presence Rs.40,000/- were paid were not

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examined. It was, therefore, submitted that both the Courts

rightly refused to grant the relief of specific performance. The

learned Counsel also placed reliance on the following decisions:

(1) Pemmada vs. Youngmen's Vysya Asso. 2015(6) Mh.L.J. (2) Ramji Dayawala and Sons (P) Ltd. v. Invest Import AIR 1981 SC 2085.

(3) Badri Narayanan and others vs Rajabagyathammal and others (1996) 7 SCC 101. (4) Sanman Trade Impex Pvt. Ltd. Vs. State of Maharashtra and others 2005(1) Mh.L.J. 1037. (5) Sheshrao Bhikaji Kale vs. Damodar Pandhare 2004(3) Mh.L.J. 357.

(6) Manjari Devi v. Usha Devi and others AIR 2014 Chhattisgarh 22.

(7) Syed Abdul Gani v. Sajjida Begum and anr. 2017(2) Civil LJ 139.

(8) Prakash Ramkrishna Khadse & ors vs. Manikrao Ramaji Sonwane & ors 2009(6) ALL MR 166.

(9) Padmakumari and others vs. Dasayyan and others 2016(2) Mh.L.J. 307.

9. In reply, the learned Counsel for the appellant

submitted that the aspect of insufficient stamp duty was never

pleaded nor raised at any point earlier. It was sought to be raised

for the first time in this appeal. There was also no evidence led by

the defendant no.1 to indicate as to in what manner the plaintiff

had taken advantage of her illiteracy. It was also submitted that

the decree as passed could be with regard to the share of the

defendant no.1 and by balancing the equities, higher consideration

could be directed to be paid.

10. I have heard the learned Counsel for the parties at

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length and with their assistance, I have also perused the records of

the case. I have given due consideration to their respective

submissions.

11. The case of the plaintiff is based on the agreement

dated 6-4-1993 at Exhibit-114. According to the plaintiff, on

25-6-1993, the time to execute the sale deed came to be extended

by putting an addenda on the said agreement. The defendants

denied entire agreement. In the deposition of the plaintiff at

Exh.78, the agreement dated 6-4-1993 alongwith thumb

impression of Chandrabhagabai was marked as Article 'A'. After

the evidence was recorded, the plaintiff moved an application

below Exhibit-110 praying that the document dated 6-4-1993

executed by Chandrabhagabai be exhibited. The trial Court by its

order dated 29-9-2003 directed the agreement of sale dated 6-4-

1993 which was marked as Article 'A' be exhibited. Accordingly,

the agreement of sale was given Exhibit-114. This order was

challenged by the defendants by filing Writ Petition

No.1857/2004. The said writ petition came to be withdrawn on

29-6-2004.

From the aforesaid, it is clear that the first portion of

the agreement scribed on 6-4-1993 is marked at Exhibit.114.

However, the addenda dated 25-6-1993 bearing thumb impression

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of Chandrabhagabai was not exhibited.

12. The defendants moved an application below Exhibit-54

and prayed that the agreement of sale dated 6-4-1993 be sent to

the Government Hand Writing expert for its opinion. The trial

Court on 6-7-2000 allowed this application for seeking opinion as

to whether thumb marks appearing on the agreement dated

6-4-1993 and the addenda dated 25-6-1993 were of the defendant

no.1. The defendants, however, could not pay the charges of

obtaining the opinion of the Government Finger Print expert. The

plaintiff, therefore, had moved another application in that which

came to be rejected. This order was challenged in Writ Petition

No.636/2005 and on 7-8-2006 the plaintiff was permitted to pay

necessary charges and on such payment, the documents were

directed to be sent for obtaining such opinion.

13. Thereafter the defendant no.1 avoided to appear

before the Court for giving her specimen signature. Ultimately, on

1-9-2007, the trial Court passed an order below Exhibit-1 after

which the thumb impression of Chandrabhagabai came to be

obtained. Thereafter the Government Hand Writing expert

submitted his opinion and opined that the thumb impression on

the agreement dated 6-4-1993 was of the same person whose

thumb impression was placed on the addenda dated 25-6-1993.

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Thus, according to the expert, both the thumb impressions on the

document at Exhibit 114 were of the same person. It is in the light

of this opinion that substantial question of law is framed as regards

the proof of the contents of the addenda below the agreement of

sale at Exhibit-114.

14. While considering the aforesaid question, it is

necessary to refer to the observations of the Hon'ble Supreme

Court in its decision in Ramji Dayawala and Sons (supra). While

considering the question as to whether proof of handwriting and

execution of the document would furnish evidence of the truth of

the facts or contents of the document, in para 16 it has been

observed thus:

"16...................................................................... If the truth of the facts stated in a document is in issue mere proof of the handwriting and execution of the document would not furnish evidence of the truth of the facts or contents of the document.? The truth or otherwise of the facts or contents so stated would have to be proved by admissible evidence, i.e. by the evidence of those persons who can vouchsafe for the truth of the facts in issue.............................................................."

In Badrinarayan and others (supra), it was observed that when the

executant was an illiterate person who had put his thumb

impression on the concerned document, unless it was established

that the recitals in the document were read out and explained to

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the said person, he could not be deemed to have assented to such

contents.

In the light of the aforesaid legal position, the

observations of the Division Bench in Dalchand Mulchand and

others and Alapati Sivaramakrishnayya (supra) do not assist the

case of the plaintiff. Though the learned Counsel for the plaintiff

relied upon the observations made in paragraph 5 of the judgment

of the Hon'ble Supreme Court in Dattatraya (supra), considering

the facts of that case and as the added portion had been denied by

the defendants herein, ratio of that decision cannot be made

applicable to the facts of the present case. Similarly, the decision in

Narbada Devi Gupta (supra) is also distinguishable in the light of

the facts of that case.

15. Even the oral evidence on record when considered in

the light of the addenda dated 25-6-1993, it is clear that the same

is insufficient to accept the case of the plaintiff. In his deposition

at Exhibit-78, the plaintiff stated that after the initial agreement

dated 6-4-1993 was entered into, there was tension in the

defendants family due to which some family members were

arrested and detained in the police station. Thereafter, the

defendant no.1 had approached the plaintiff and stated that she

was in need of money. When Rs.40,000/- were paid to the

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defendant no.1, two persons namely Shri Itankar and Shri Tulsidas

were present. These two persons were, however, not examined by

the plaintiff. In his cross-examination the plaintiff admitted that

within three months of the agreement dated 6-4-1993 he did not

issue any notice to the defendant no.1 for having the sale-deed

executed. He also admitted that the family members of the

defendants were arrested during the period of July to August,

1993. He then stated that his statement made in the examination-

in-chief that after the arrest of some family members, the

defendant no.1 had come to him was not correct. Though

Rs.40,000/- were paid in cash as that amount was available with

him, he did not place on record his income tax returns.

The defendant no.1 examined herself at Exhibit-91.

She stated that the plaintiff was her nephew. Only an amount of

Rs.10,000/- was paid by the plaintiff as part consideration. The

plaintiff did not get the sale deed executed within the period of

three months as had been agreed.

16. From the aforesaid evidence, it can be seen that even

the surrounding circumstances leading to the execution of the

subsequent agreement on 25-6-1993 have not been duly proved.

The various circumstances such as absence of examining the two

witnesses in whose presence amount of Rs.40,000/- was paid,

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arrest of the defendants family members in July - August, 1993

when the addenda was already said to have been signed on

25-6-1993 coupled with absence of any steps being taken by the

plaintiff to have the sale-deed executed when according to him, he

was ready with the balance consideration are factors that cannot

be ignored. Thus, when the entire evidence on record is taken into

consideration, it cannot be said that both the Courts committed

any error of law by holding that the plaintiff had failed to prove

the contents of the additions below the agreement to sell at

Exhibit-114. As noted above, the defendant no.1 was illiterate and

had denied the contents of the addenda. Hence, merely on the

opinion of the finger print expert that the thumb impressions on

the agreement dated 6-4-1993 and 25-6-1993 were of the same

person, the plaintiff cannot succeed on that count. It was necessary

for him to have proved the contents of the addenda. I do not find

that the appreciation of evidence was perverse in any manner

whatsoever. Though it was urged on behalf of the plaintiff that the

defendant no.1 had avoided to give her thumb impressions for

obtaining the opinion which conduct was not natural, in the light

of the entire evidence on record this factor independently cannot

be given much importance.

17. Accordingly, the substantial question of law is

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answered by holding that both the Courts did not commit any

error in holding that the plaintiff ought to have proved the

contents of the additions below the agreement of sale at Exhibit-

114. Consequently, the judgment of the first appellate Court does

not call for any interference. Hence, the appeal fails.

The judgment of the trial Court and the appellate Court stand

confirmed. No costs.

JUDGE

/MULEY/