Madras High Court
Balasubramaniam vs Pushpa on 23 December, 2021
S.A.No.1089 of 2021
and C.M.P.No.20772 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED :23.12.2021
CORAM
THE HON'BLE Mr. JUSTICE G.CHANDRASEKHARAN
S.A.No.1089 of 2021
and C.M.P.No.20772 of 2021
Balasubramaniam ...Appellant
Vs.
Pushpa ...Respondent
PRAYER: Second Appeal is filed under Section 100 of the Code of Civil
Procedure, to set aside the judgment and decree dated 14.12.2018 in
A.S.No.41 of 2017 on the file of the District Court, Namakkal, confirming the
judgment and decree dated 19.04.2017 in O.S.No.27 of 2008 on the file of
the Subordinate Court, Namakkal.
For Appellant : Mr.T.G.V.Ramanigopal for
M/s.T.L.Thirumalaisamy
1/14
https://www.mhc.tn.gov.in/judis
S.A.No.1089 of 2021
and C.M.P.No.20772 of 2021
JUDGMENT
This Second Appeal is directed against the judgment and decree
of the learned Principal District Judge, Namakkal in A.S.No.41 of 2017,
confirming the judgment and decree of the learned Subordinate Judge,
Namakkal in O.S.No.27 of 2008.
2. The appellant/plaintiff filed the suit for specific performance of
contract on the basis of the alleged sale agreement said to have been entered
into between the appellant and respondent on 27.08.2007.
3. The case of the appellant, in brief, is as follows:
The suit property was purchased by the respondent on
28.02.1990. There was an agreement between the appellant and respondent
for the sale of the suit property in favour of the appellant and to evidence that
agreement, written sale agreement was executed on 27.08.2007. The sale
consideration for the suit property was fixed at Rs.5,00,000/-. Appellant paid
Rs.3,00,000/- as advance. It was agreed to pay the balance sale consideration
in four months time and complete the sale. Appellant was ready and willing to
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S.A.No.1089 of 2021
and C.M.P.No.20772 of 2021
pay the balance sale consideration and execute the sale deed. However,
respondent has not come forward to execute the sale deed resulting in sending
a notice dated 15.12.2007 by the appellant to the respondent. That notice was
not received by the respondent and returned. Appellant is always ready and
willing to perform his part of the contract and therefore, the suit.
4. The case of the respondent, as seen from the written statement, in
brief, is as follows:
It is admitted that suit property was purchased by the respondent.
There was no sale agreement executed between the appellant and respondent
on 27.08.2007 as alleged in the plaint. The sale agreement is created and
fabricated document. Respondent is a widow and taking advantage of her
position as a widow, appellant has forged the signature of the respondent and
created the sale agreement and filed the suit. The allegation that the sale
consideration was fixed at Rs.5,00,000/- and an advance of Rs.3,00,000/- was
paid by the appellant to the respondent on 27.08.2007 are not correct. The
allegation that, it was agreed to complete the sale on or before 26.12.2007 is
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S.A.No.1089 of 2021
and C.M.P.No.20772 of 2021
also not correct. It is also denied that the appellant met the respondent and
requested for execution of sale deed. Respondent has not received the notice
dated 15.12.2007. It is not correct to state that the value of the suit property
is Rs.5,00,000/-.
5. The case of the respondent in the additional written statement, in
brief, is as follows:
Appellant's sister's husband Kandasamy is the grand son of
respondent's senior paternal uncle. Respondent's husband Srirangan gave a
loan of Rs.10,00,000/- to appellant's sister's husband Kandasamy. Srirangan
was demanding Kandasamy to return the loan amount and therefore there
was ill feeling between them. Srirangan died in 2005. Respondent met
Kandasamy and demanded the return of the loan amount. Only with a view to
give trouble to the respondent, Kandasamy with the help of appellant forged
the signature of the respondent and created a sale agreement and filed the
suit. Respondent has no reason to sell the suit property. She is well off. This
suit is filed to cheat the respondent and usurp her property. Therefore, this
suit is liable to be dismissed.
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S.A.No.1089 of 2021
and C.M.P.No.20772 of 2021
6. On the basis of the above pleadings, the trial Court framed the
following issues:
i) Whether the sale agreement dated 27.08.2007 is true and valid
sale agreement?
ii) Whether the value of the suit property is correct?
iii) Whether the appellant was ready and willing to perform his
part of the contract?
iv) To what relief, if any, plaintiff is entitled?
7. During the course of trial, PW1 to PW3 were examined and
Exhibits A1 to A4 were marked on the side of the appellant/plaintiff. DW1
and DW2 were examined and Exhibits B1 to B7 were marked on the side of
the respondent/defendant. Exhibit C1 was also marked as a Court Exhibit.
8. On considering the oral and documentary evidence, especially the
evidence of PW3 with regard to the execution of sale agreement, the learned
Trial Judge found that, there are material contradictions in the evidence of
PW2 and PW3 with regard to the execution of sale agreement and therefore
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S.A.No.1089 of 2021
and C.M.P.No.20772 of 2021
found that the execution of sale agreement was not proved to the satisfaction
of the Court. It was also found that appellant claimed that he paid the advance
amount of Rs.3,00,000/- from funds available in his bank. However, Exhibit
A4 pass book of the appellant shows that there was no fund of Rs.3,00,000/-
was available on the alleged date of payment of Rs.3,00,000/-. That apart, it
was also found from the evidence of DW2 that the disputed signatures in
Exhibit A1 sale agreement are not the signatures of the respondent. On these
reasons, the learned Trial Judge has come to the conclusion that the sale
agreement is not a true and genuine sale agreement and therefore, the
appellant is not entitled to claim the relief of specific performance of contract
and dismissed the suit. The appellant filed appeal in A.S.No.41 of 2017
against the judgment of the trial Court. The learned Appellate Judge, also
considered the evidence of DW2 and DW3 with regard to the execution of
sale agreement, considered the evidence of DW2 and Exhibit C1, the capacity
of the appellant to pay Rs.3,00,000/- on the alleged date of execution of sale
agreement and finally concurred with the finding of the trial Court and
dismissed the appeal. Challenging the dismissal of appeal, appellant has filed
this Second Appeal.
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S.A.No.1089 of 2021
and C.M.P.No.20772 of 2021
9. The learned counsel for the appellant submitted that the evidence
of PW2 and PW3 was not considered in proper perspective. Both the Courts
below have misread the evidence of PW2 and PW3 and came to the wrong
conclusion. The expert's opinion is only an opinion and it cannot be a
conclusive proof or determining the genuineness of the document. Other facts
and evidence have also to be considered before accepting the evidence of an
expert. Therefore, learned counsel for the appellant submitted that both the
Courts below have not properly appreciated the evidence of witnesses and
arrived at wrong conclusion. That apart, it is submitted by the learned counsel
for the appellant that after the institution of the suit, as per the orders of the
Trial Court, the appellant had deposited Rs.2,00,000/- before the trial Court.
However, even this amount was not ordered to be refunded to the appellant.
Thus, the learned counsel for the appellant prayed for setting aside the
judgment of the Courts below and for allowing this Second Appeal.
10. It is seen from the pleadings set out, there is no dispute with
regard to the fact that suit property belong to respondent. Appellant claims
that respondent had executed the Exhibit A1 sale agreement for sale
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and C.M.P.No.20772 of 2021
consideration of Rs.5,00,000/- on 27.08.2007, after receiving an advance
amount of Rs.3,00,000/-. This was seriously denied and disputed by the
respondent and it is contended by the respondent that suit sale agreement is
created by the appellant with the help of Kandasamy by forging her signature
and with a view to misuse, taking advantage of her position as widow.
Therefore, it is primarily on the part of the appellant to prove that the sale
agreement was executed as claimed in the plaint. The learned counsel for the
appellant admitted that, at the instance of the respondent, Exhibit A1 sale
agreement was sent for comparison of the disputed signatures with the
admitted signatures of the respondent to the hand writing expert's opinion.
The fact remains that the disputed signatures in Exhibit A1 sale agreement
were sent for opinion of hand writing expert and after comparison of the
admitted signatures with the disputed signatures, report of the hand writing
expert Exhibit C1 was received. It is seen from Exhibit C1 that the disputed
signatures in Exhibit A1 sale agreement, that is Q1 to Q3, on the comparison
with admitted signatures A1 to A10 do not tally with the admitted signatures.
DW2 gave a specific and clear evidence that the Q1 to Q3 signatures in
Exhibit A1 sale agreement are not the signatures of the respondent. Therefore,
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S.A.No.1089 of 2021
and C.M.P.No.20772 of 2021
it was found by the Court below that Exhibit A1 sale agreement is not a true
sale agreement.
11. The Courts below have not arrived the decision only on the basis
of the hand writing expert's opinion and Exhibit C1. They analyzed the
evidence of DW2 and DW3 attestors of the sale agreement and found that
both the witnesses have materially contradicted in their evidence in cross
examination with regard to the execution of the sale agreement. Both the
witnesses have given chief examination confirming to the execution of sale
agreement. PW2 during the course of the cross examination, stated that the
sale agreement was made ready when he visited and he found the signatures
of the respondent/defendant in the sale agreement before he put his signature.
Similarly, PW3, scribe had also given evidence during the course of the cross
examination that he has not seen both the appellant and respondent during the
sale agreement. Attestors are examined for the purpose of proving the
execution of sale agreement. Here, in this case, neither the scribe nor the
attestor had seen the parties to the sale agreement signing the sale agreement
in their presence. Therefore, the Courts below rightly found that the execution
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and C.M.P.No.20772 of 2021
of sale agreement was not proved to the satisfaction of the Court.
12. One more finding recorded by the Courts below is that when the
appellant claimed to have paid Rs.3,00,000/- on the date of sale agreement, it
was found from Exhibit A4 that on the alleged date of payment of
Rs.3,00,000/- as advance, there was no fund Rs.3,00,000/- was available in
the bank account of the appellant, leading to the conclusion that appellant's
claim that he paid Rs.3,00,000/- from the funds available in his bank account
is not true. Thus, it is seen from the oral and documentary evidence produced,
appellant has not established that he had paid from his bank funds
Rs.3,00,000/- on the date of sale agreement to the respondent. Thus, the
execution of sale agreement was not proved to the satisfaction of the Court.
13. To top it all, it was found from the evidence of DW2 and Exhibit
C1 that the signatures of the respondent in Exhibit A1 are not her signatures.
Both the Courts have concurrently found that the suit Exhibit A1 sale
agreement is not true sale agreement and therefore dismissed the suit. This
Court finds no reason to interfere with the judgment and decree of the
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and C.M.P.No.20772 of 2021
Appellate Court confirming the judgment and decree of the Trial Court. There
is no substantial question(s) of law involved in this Second Appeal. Therefore,
the judgment and decree of the learned Principal District Judge, Namakkal, in
A.S.No.41 of 2017 confirming the judgment and decree of the learned
Subordinate Judge, Namakkal, in O.S.No.27 of 2008 is confirmed.
14. Accordingly, this Second Appeal is dismissed with the
costs of the respondent throughout. Consequently, connected miscellaneous
petition stands closed.
15. With regard to the submission of the learned counsel for
the appellant that Courts below have not ordered return of Rs.2,00,000/-
deposited as per the orders of the trial Court, this Court finds from the
judgment of Appellate Court, a sum of Rs.2,00,000/- was deposited by the
appellant. However, the first Appellate Court just observed that no weight has
to be given to this deposit, since sale agreement was found to be a fabricated
one. Rs.2,00,000/- was deposited in the Court after the institution of the suit
and as per the orders of the Court and therefore, appellant is entitled to get
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back this amount. Thus, the appellant is directed to move appropriate
application before the trial Court for return of Rs.2,00,000/- with accrued
interest if any, if it is lying in the Court deposit. On such application being
filed, the learned Subordinate Judge, Namakkal, is directed to pass
appropriate orders in accordance with law.
23.12.2021
ep
Index:Yes/No
Internet:Yes/No
Speaking Order: Yes/No
To
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S.A.No.1089 of 2021
and C.M.P.No.20772 of 2021
1. The Principal District Judge, Namakkal.
2. The Subordinate Judge, Namakkal.
3. The Section Officer, VR Section, High Court of Madras.
G.CHANDRASEKHARAN.J,
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S.A.No.1089 of 2021
and C.M.P.No.20772 of 2021
ep
S.A.No.1089 of 2021
and C.M.P.No.20772 of 2021
23.12.2021
https://www.mhc.tn.gov.in/judis
