Madras High Court
Smt.Santha Thangaraj vs Smt.P.Devamani on 15 July, 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 15.07.2021
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
SA(MD)No.613 of 2005
and
MP(MD)No.1 of 2015
Smt.Santha Thangaraj ... Plaintiff / Appellant /
Appellant
Vs.
1.Smt.P.Devamani
W/o.P.Devamani
2.Smt.K.Ponnammal
W/o.Thanukrishnan ... Defendants/
Respondents / Respondents
Prayer : Second Appeal filed under Section 100 of Civil Procedure
Code, against the judgment and decree in A.S No.228 of 2003 dated
07.02.2005 on the file of the District Judge, Kanyakumari District at
Nagercoil confirming the judgment and decree in O.S No.40 of 1996
dated 08.10.2003 on the file of the Principal Subordinate Judge,
Nagercoil.
For Appellant : Mr.K.Govindarajan
for Mr.J.Parekh Kumar
For Respondents : Mr.P.Thiyagarajan
for Mr.G.Cenil R1
No appearance for R2
https://www.mhc.tn.gov.in/judis/
JUDGEMENT
The plaintiff in O.S No.40 of 1996 on the file of the Principal
Subordinate Judge at Nagercoil is the appellant in this second appeal.
The said suit was instituted for specific performance of the suit
agreement dated 13.05.1995 (Ex.A1). The case of the plaintiff is that
the plaintiff and the first defendant are close relatives ; they had
entered into a sale agreement dated 08.05.1991 (Ex.A12) with one
Ponnammal who was shown as the second defendant for purchasing
seven cents of property for a sale consideration of Rs.52,500/- ; they
had jointly paid a sum of Rs.5,000/- towards advance. The second
defendant had also handed over possession of the suit property to the
plaintiff and the first defendant pursuant to the said agreement dated
08.05.1991. While so, the first defendant surreptitiously obtained sale
deed in respect of the entire suit property from the second defendant
K.Ponnammal. This caused strain in the relationship and negotiation
was conducted through various family members. Finally, on
13.05.1995, the suit agreement was entered into and the first
defendant agreed to convey three and half cents of land which
represents the suit property. Even though the plaintiff was ready to
fulfill her part of the contract under the suit agreement, the first
defendant did not come forward. Therefore, the suit came to be
instituted.
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2.The second defendant remained exparte. The first defendant
Davamani filed written statement controverting the plaint averments.
The specific stand of the first defendant was that Ex.A1 dated
13.05.1995 is a rank forgery. The first defendant came up with
certain explanations as regards the agreement dated 08.05.1991
entered into with Ponnammal.
3.Based on the rival pleadings, the trial court framed the
necessary issues. The attestors of the suit agreement, namely,
M.Sundarraj and Lakshmanan were examined as PW.2 and PW.3.
Exs.A1 to A12 were marked. The contesting defendant examined
herself as DW.1 and marked Exs.B1 to B5. An advocate commissioner
was appointed to note down the physical features of the property and
his report was marked as court Ex.1. After considering the evidence
on record, the trial court by judgment and decree dated 08.10.2003
concluded that the suit agreement had not been proved. In that view
of the matter, the suit itself came to be dismissed. Challenging the
same, the plaintiff filed A.S No.228 of 2003 before the District Court,
Kanyakumari at Nagercoil. The first appellate court also vide
judgment and decree dated 07.02.2005 confirmed the dismissal of the
suit and dismissed the appeal. Challenging the same, this second
appeal came to be filed. The second appeal was admitted on the
following substantial question of law :
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“Whether the lower appellate court is correct in not
granting permanent injunction, when the Advocate
Commissioner found divisions of the suit schedule
property into two separate plots having barbed wire
fence and the 3-1/2 cents Northern Portion is in the
peaceful possession and enjoyment of the appellant /
plaintiff and when the counsel for the first respondent
fully admitted the averments of the appellant / plaintiff,
including the surrender of possession to the appellant /
plaintiff, in his arguments ?.”
An additional substantial substantial question of law was also
formulated : “whether the evidence of PW.2 was misconstrued ?
4.The learned counsel appearing for the appellant reiterated the
contentions set out in the memorandum of grounds and called upon
the court to answer the substantial question of law in favour of the
appellant and allow this appeal and decree the suit as prayed for. Per
contra, the learned counsel for the respondents submitted that the
impugned judgments and decrees of the courts below do not call for
any interference.
5.I carefully considered the rival contentions and went through
the evidence on record. The whole case turns on whether the suit
agreement dated 13.05.1995 has been proved by the plaintiff or not.
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The plaintiff examined herself as PW.1. PW.2 M.Sundarraj who is
none other than the brother of the plaintiff is figuring as attestor in
Ex.B4/Ex.A12. PW.2 in his cross examination admitted that he knew
only about the terms of the transaction set out in Ex.B4 and that he
knows nothing about Ex.A1. The plaintiff had examined PW.2 only for
the purpose of speaking about the transaction that involved
Ponnammal alone. But the learned trial Judge had totally
misconstrued the testimony of PW.2 and chose to come to the
conclusion that Ex.A1 had not been established. PW.2's testimony had
nothing to do with Ex.A1. Therefore, his testimony could not have
cast any cloud on the genuineness of Ex.A1. The first appellate court
has also trodden on the very same lines. Therefore, I have no
difficulty in coming to the conclusion that the courts below have
misconstrued the evidence on record. The second substantial
question of law is answered in favour of the appellant. The specific
stand of the contesting defendant is that Ex.A1 is a rank forgery. In
this case, either of the parties could have taken steps to refer the
document for the opinion of the handwriting expert. The plaintiff did
not take any step. The contesting defendant had also not taken any
step. The court below in such circumstances could have exercised its
jurisdiction under Section 73 of the Indian Evidence Act and
undertaken the task of comparison.
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6.The plaintiff had examined herself and by examining PW.3 had
discharged the onus cast on her as regards Ex.A1. If the case of the
first defendant is that Ex.A1 is forgery, she ought to have taken step
in this regard. In view of the total misconstruction of the oral evidence
of PW.2 by the courts below, in the interest of justice, I am of the view
that the matter has to be remanded to the trial court. The signature
of the first defendant in ExB4 is admitted. Thus, an admitted
signature of the contesting defendant is available. The signature
attributed to the first defendant in Ex.A1 alone is under dispute. Of
course, Ex.A1 is of the year 1995 while Ex.B4 is of the year 1991.
They cannot be contemporaneous documents. Nevertheless there is
some strong material to make comparison.
7.In this view of the matter, the impugned judgments and
decrees of the courts below are set aside. The matter is remitted to
the file of the trial court. It is open to the parties to place before the
court any unimpeachable material containing the contemporaneous
signature of the first defendant. The trial court will make reference to
a handwriting expert by taking note of the available materials. It is
also open to the parties herein to file memo of instructions before the
court concerned. The second appeal is allowed and the matter is
remitted to the trial court.. Since the suit is of the year 1996, the
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trial court will expedite making reference to the handwriting expert
and dispose of the case on merits and in accordance with law within a
period of ten months from the date of receipt of copy of the judgment.
Since the matter is being remanded, Registry is directed to return the
court fee to the counsel for the appellant. No costs. Consequently,
connected miscellaneous petition is closed.
15.07.2021
Index : Yes / No
Internet : Yes/ No
skm
Note :In view of the present lock down owing to
COVID-19 pandemic, a web copy of the order may
be utilized for official purposes, but, ensuring that
the copy of the order that is presented is the
correct copy, shall be the responsibility of the
advocate/litigant concerned.
To:
1.The District Judge, Kanyakumari District at Nagercoil.
2.The Principal Subordinate Judge, Nagercoil.
Copy to : The Record Keeper, V.R. Section,
Madurai Bench of Madras High Court, Madurai.
https://www.mhc.tn.gov.in/judis/
G.R.SWAMINATHAN, J.
skm
SA(MD)No.613 of 2005
and
MP(MD)No.1 of 2015
15.07.2021
https://www.mhc.tn.gov.in/judis/
