Madras High Court
A.Mohanasundaram vs Avinashi Gounder on 14 December, 2021
S.A.No.232 of 2012
and M.P.No.1 of 2012
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 14.12.2021
CORAM:
THE HONOURABLE MR.JUSTICE RMT.TEEKAA RAMAN
S.A.No.232 of 2012
and M.P.No.1 of 2012
A.Mohanasundaram ... Appellant/Plaintiff
Vs.
1.Avinashi Gounder
2.Thimmaiyan
3.Madhaiyan ... Respondents/Defendants
PRAYER: This Second Appeal has been filed under Section 100 of CPC
against the judgment and decree made in A.S.No.92 of 2010, by the
learned First Additional District Judge, Coimbatore, dated 21.09.2011,
confirming the judgment and decree of the learned III Additional
Subordinate Judge, Coimbatore, made in O.S.No.683 of 2007, dated
05.07.2010.
For Appellant : Mr.P.Dinesh Kumar
For Respondents : Mrs.Vijaya Kumari Natarajan
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S.A.No.232 of 2012
and M.P.No.1 of 2012
JUDGMENT
The unsuccessful plaintiff is the appellant herein.
2.This Second Appeal has been filed against the judgment and
decree dated 21.09.2011, passed by the learned First Additional District
Judge, Coimbatore, in A.S.No.92 of 2010, wherein, the learned Judge has
confirmed order passed by the learned III Additional Subordinate Judge,
Coimbatore, in O.S.No.683 of 2007, dated 05.07.2010.
3.For the sake of convenience, the parties are referred to as per
their ranking before the Trial Court.
4.The plaintiff has filed a suit in O.S.No.683 of 2007 before the
learned III Additional Subordinate Judge, Coimbatore, for specific
performance of Ex.A1/suit sale agreement on the ground that, he is ready
and willing to perform his part of the contract and the said suit was
dismissed by holding that Ex.A1/suit sale agreement is forged and
fabricated document. Aggrieved against the same, the plaintiff has
preferred an appeal suit in A.S.No.92 of 2010, before the learned First
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S.A.No.232 of 2012
and M.P.No.1 of 2012
Additional District Judge, Coimbatore and the said appeal was dismissed
and hence, the Second Appeal.
5.This Court heard the rival submissions made by the learned
counsel on either side and perused the materials placed on record.
6.The above Second Appeal was admitted on 21.02.2012, on the
following substantial questions of law:
“1.In the light of Section 15(a) of
Specific Relief Act and Section 54 of the
Transfer of Property Act, whether signature by
both parties to the contract is necessary and as
such the judgment and decree of the learned
Trial Court and First Appellate Court in non
suiting the plaintiff holding that Ex.A1 is not
bilateral agreement is sustainable in law?
(VIDE 1998 3 LW – page 189)
2.Whether in law, was not the execution,
genuineness and enforceability of Ex.A1
proved, through the evidence of PW1 (the
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S.A.No.232 of 2012
and M.P.No.1 of 2012
plaintiff) and P.W.2 (the attestor) who is the
close relative of both plaintiff and first
defendant, especially when there was no reply
denying plaintiff's genuine claim, to plaintiff's
pre-suit notice under Ex.A2 to A4 sent
defendants 1 to 3?
3.Having regard to scope of Section
16(c) of the Specific Relief Act and by notice
under Ex.A2 to Ex.A4 whether in law the
plaintiff is not ready and willing to perform his
part of contract when substantial portion of
sale consideration was paid as advance?
(VIDE 200 6 SCC page – 420).”
7.On a perusal of records, it appears that the plaintiff has filed the
above said suit in O.S.No.683 of 2007 before the III Additional Sub
Court, Coimbatore, seeking the relief of specific performance of
Ex.A1/Suit Sale Agreement dated 07.03.2017. As per the terms of the
agreement, the sale consideration was fixed at Rs.3,60,000/-, and a sum
of Rs.3,00,000/- was paid on the very same date as advance and for the
balance amount of Rs.60,000/-, six months time from the date of the
agreement was stipulated. The balance amount was not paid within the
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S.A.No.232 of 2012
and M.P.No.1 of 2012
stipulated time and hence, the plaintiff had issued Ex.A2/legal notice on
06.08.2007, calling upon the defendants to execute the sale deed as
agreed between the parties and the same was certified under
Ex.A3/acknowledgment card, dated 07.08.2007. Since the defendants
have not given any reply, the plaintiff has filed the above said suit on
19.11.2007. It appears that after Ex.A2/legal notice dated 06.08.2007,
the defendants have executed a sale deed on 26.09.2007 under
Ex.B10/selling of the property in favour of the defendants 2 & 3. Title of
the first defendant is not in dispute.
8.The first defendant has filed written statement before the trial
Court challenging the very genuineness of Ex.A1/sale agreement, on the
ground that Ex.A1 contains the signature of the person said to be the first
defendant. The first defendant, never in his life time, has signed in
letters, but he used to affix only the thumb impression and therefore, with
active connivance of PW2, Ex.A1/Sale deed has been forged and
fabricated, besides non issuance of legal notice to a person, when Ex.A1
is forged and fabricated, does not arise.
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S.A.No.232 of 2012
and M.P.No.1 of 2012
9.Before the Trial Court, on behalf of the plaintiff, the agreement
holder/plaintiff was examined as PW1; a common relative of both the
parties was examined as PW2 and marked documents Exs.A1 to A5 and
on behalf of the defendants, DW1 and DW2 were examined and marked
documents Exs.B1 to B12. The first defendant examined himself as
DW1, who is the agriculturist and was selling potatos to the agricultural
producer Cooperative Society, wherein, he used to put only the thumb
impression and had never signed in the document. Ex.B6 is the sale
agreement entered between the first and second defendants with respect
to suit property; Ex.B7 is sale deed thereon, wherein also the first
defendant has put only the thumb impression and never signed, so also in
Ex.B8/copy of the Ration Card and Ex.B9/ original sale agreement, dated
05.07.2007 and in the sale deed of the years 2007 and 2008 and under
Exs.B10, B11 & B12.
10.Further, on a perusal of the records, it is seen that the Trial
Court has framed necessary issue as to whether Ex.A1/sale agreement is
true and genuine document or in the alternate, the same is fabricated
document as pleaded by the learned counsel for the defendants.
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S.A.No.232 of 2012
and M.P.No.1 of 2012
11.The learned counsel for the appellant/plaintiff would draw my
attention to the terms of the sale agreement under Ex.A1 and the payment
made therein and the balance of sale consideration viz., Rs.60,000/-.
Ex.A2/legal notice was issued within the stipulated time as prescribed in
Ex.A1/sale agreement. However, the defendants have not issued any
reply notice.
12.The learned counsel for the respondent would contend that the
primary line of defense is that the first defendant never used to affix his
signature in letters in documents and used to affix only thumb impression
in all the documents and while in Ex.A1/Sale Agreement, it is alleged to
have been signed by the first defendant. Ex.A1 is disbelieved and hence,
both the Courts below have doubted the genuineness in view of the
signature.
13.To substantiate the case, the defendants have also marked
Exs.B1, B2, B3, B4 of the year 2006, which contains thumb impression
and they are prior to Ex.A1/Sale agreement, assumes significance. The
first defendant is none other than the paternal aunt son. Ex.B5/sale deed
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S.A.No.232 of 2012
and M.P.No.1 of 2012
dated 27.03.1972, which was executed by on Venkatachalam in favour of
both the first defendant and the father of the plaintiff. Thereafter, the
first defendant and the father of the plaintiff have entered into partition,
whereby, plaintiff's father has acquired 3.45 acres and the first defendant
has acquired 3.44 acres. In Ex.B5 also the first defendant has only
affixed his thumb impression, assumes significance.
14.On the contrary, not even scrap paper was produced by the
plaintiff to demonstrate that the first defendant is in the habit of signing
his signature, to prove the signature found in Ex.A1/suit sale agreement
is as that of the defendants. In view of the overwhelming documentary
evidence under Exs.B1 to B4 of the year 2006, Ex.B8 of the year 2009
and Exs.B6, B7, B9, B10 & B11 of the year 2008, the Trial Court has
rightly come to the conclusion that Ex.A1/sale agreement is of the year
2007 and neither before the date of agreement nor after the date of
agreement, no document has been produced by the plaintiff to
substantiate his plea as discussed supra and consequently, the Courts
below have held that the signature found in Ex.A1 could not have been
the signature of the first defendant. In other words, a clear concurrent
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S.A.No.232 of 2012
and M.P.No.1 of 2012
finding has been rendered by the both the Courts below that the plaintiff
has miserably failed to prove that the signature found in Ex.A1/suit sale
agreement is as that of the first defendant and such finding being
concurrent in nature, based upon the documents Exs.B1 to B11, I find
that the concurrent findings rendered by both the Courts below do not
require any interference at this appellate stage.
15.Further, it is seen from the records that Ex.A1/original sale
agreement stamp paper was purchased in the year 2004 while agreement
of sale in the year 2007. Though, the stamp paper was purchased by the
plaintiff, it is hardly acceptable that even prior to three years he had
purchased the documents. No doubt true that unilateral agreement may
be enforced but when the same is disbelieved and doubted, the same
cannot be enforced in law. Ex.B9/original sale agreement & Ex.B10/copy
of the sale deed were entered by the second and third defendant.
Consequently, they have accepted Ex.B7/sale deed, dated 26.09.2007 and
Ex.B8/copy of the ration card, which are between the period 2005 and
2009. Therein also the first defendant has affixed the thumb impression
and hence, both the Courts below have rightly come to the conclusion
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S.A.No.232 of 2012
and M.P.No.1 of 2012
that the defendant is used to affix thumb impression and never used to
sign in the documents.
16.Yet another point is that the admission of PW1 that he has not
disclosed the alleged payment of advance for the Income Tax Returns
also held against the plaintiff and hence, both the Courts below as rightly
concluded that the plaintiff has not proved his case and also taking note
of the fact that under Section 20 of the Specific Relief Act, the relief of
specific performance cannot be granted for merely for asking relief is not
automatic and when Ex.A1 is highly doubt, both the Court below has
rightly come to the conclusion.
17.As stated supra, PW2 is the attestor, who is common friend for
both the parties. There is no positive evidence to indicate that the
signature found in Ex.A.1 is as that of the first defendant. Merely
because there is no reply, it cannot be construed that the defendants have
accepted the case of the plaintiff. Though a plea has been raised in the
plaint that the plaintiff is ready and willing to perform his contract, in
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S.A.No.232 of 2012
and M.P.No.1 of 2012
view of the clear and categorical findings which are concurrent in nature,
it is seen that Ex.A1/sale agreement is a fabricated document. Since
Ex.A1/sale agreement is said to be the fabricated and forged document,
all the substantial questions of law framed does not arise for
consideration and the concurrent findings rendered by both the Courts
below do not suffer from any irregularity or illegality warranting
interference at this appellate stage. Accordingly, the Second Appeal is
devoid of merits and the same is liable to be dismissed.
18.In the result, this Second Appeal stands dismissed and the
judgment and decree dated 21.09.2011 passed by the learned First
Additional District Judge, Coimbatore, in A.S.No.92 of 2010, confirming
the judgment and decree dated 05.07.2010 passed by the learned III
Additional Subordinate Judge, Coimbatore, in O.S.No.683 of 2007, are
hereby confirmed. Consequently, connected miscellaneous petition
stands closed. No costs.
14.12.2021
Internet : Yes
dua
https://www.mhc.tn.gov.in/judis
S.A.No.232 of 2012
and M.P.No.1 of 2012
RMT.TEEKAA RAMAN, J.
dua
To
1.The First Additional District Judge, Coimbatore.
2.The III Additional Subordinate Judge, Coimbatore.
S.A.No.232 of 2012
and M.P.No.1 of 2012
14.12.2021
https://www.mhc.tn.gov.in/judis
