Madras High Court
Venkittammal (Deceased) vs N.Krishnasamy Naidu (Deceased) on 7 June, 2023
S.A.No.15 of 2010
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 07.06.2023
CORAM:
THE HONOURABLE MRS. JUSTICE R. HEMALATHA
S.A.No.15 of 2010
1.Venkittammal (Deceased)
2.T.Palanichamy
3.T.Sarojini ..Appellants
vs.
1.N.Krishnasamy Naidu (Deceased)
2.K.Renganayaki
3.T.Viswanathan ..Respondents
(Appellants 2 & 3 brought on record as LRs of the deceased sole appellant
vide order of Court dated 04.07.2017 made in C.M.P.No.1/2013 in
S.A.No.15/2010)
(RR2 & 3 brought on record as LRs of the deceased sole respondent vide
order of Court dated 04.07.2017 made in C.M.P.No.2201/2017 in
S.A.No.15/2010)
PRAYER: Second Appeal filed under Section 100 of Civil Procedure
Code against the decree and judgment dated 08.09.2009 in A.S.No.24 of
2009 on the file of the I Additional District Court, Coimbatore, upholding
the decree and judgment dated 22.09.2008 in O.S.No.167 of 2002 on the
file of the Sub Court, Udumalpet.
1/19
https://www.mhc.tn.gov.in/judis
S.A.No.15 of 2010
For Appellants : Ms.Elizabeth Ravi for
Mr.P.Raja
For R2 : Ms.M.V.Kalaichitram
For R3 : No appearance
JUDGMENT
The unsuccessful plaintiff before both the Courts below has filed
the present second appeal. The appellant/plaintiff filed the suit in
O.S.No.167 of 2002 on the file of the Sub Court, Udumalpet, seeking for
specific performance of contract dated 31.12.1999 (Ex.A1) executed
between him and the defendant.
2. For the sake of convenience, the parties are referred to as
per their ranking in the trial court and at appropriate places, their rank in
the present second appeal would also be indicated.
3. The case of the plaintiff in nutshell is as follows:
The suit property originally belonged to the defendant. The
plaintiff and the defendant entered into an oral agreement of lease and the
https://www.mhc.tn.gov.in/judis
S.A.No.15 of 2010
plaintiff was put in possession during the year 1992 and thereafter, an
agreement of sale dated 31.12.1999 (Ex.A1) was executed fixing the
consideration at Rs.1,50,000/- out of which the plaintiff paid a sum of
Rs.1,20,000/- towards advance. The plaintiff was ready to pay the balance
amount of Rs.30,000/- to the defendant to get the sale deed executed in his
favour. Though the plaintiff approached the defendant to execute the sale
deed, he evaded the same and also filed a suit in O.S.No.347/2000 before
the District Munsif, Udumalpet. The plaintiff thereafter, issued a legal
notice to the defendant dated 18.12.2000 (Ex.A2) calling upon the
defendant to execute the sale deed in pursuance of the sale agreement
(Ex.A1). The defendant issued a reply notice (Ex.A3) which according to
the plaintiff contained false allegations. Hence, the suit.
4. The suit was resisted by the defendant on the following
grounds:
i. The plaintiff was never put in possession of the suit property as a
lessee.
ii. The plaintiff was only a permissive occupier of the suit property.
iii. There was no agreement of sale between the plaintiff and the
https://www.mhc.tn.gov.in/judis
S.A.No.15 of 2010
defendant and the sale agreement is a forged document. The
plaintiff has not also filed the suit within a reasonable period and
therefore, his suit is liable to be dismissed.
5. On the basis of the above pleadings, the trial Court Judge
framed the following issues :
i. "Whether the sale agreement is true and valid?
ii. Whether the plaintiff is entitled for specific performance?
iii. To what relief, the plaintiff is entitled?"
6. In the trial Court, the plaintiff examined himself and one
another witness and marked Ex.A1 to Ex.A12. The defendant examined
himself and one another witness and marked Ex.B1 & Ex.B2. The
handwriting expert's opinion was marked as Ex.X1.
7.After full contest, the learned Subordinate Judge, Udumalpet,
dismissed the suit filed by the plaintiff vide his decree and judgment dated
22.09.2008 on the following grounds :
https://www.mhc.tn.gov.in/judis
S.A.No.15 of 2010
i. The plaintiff did not examine any of the attesting witnesses to the
sale agreement (Ex.A1).
ii. The plaintiff also admitted that there was a strained relationship
between him and the defendant for the past 10 years. Hence, it is
difficult to accept that the defendant executed the sale agreement
(Ex.A1).
iii. There are different versions with regard to the place of signing of
the sale agreement by the defendant.
iv. The plaintiff has not proved the execution of the sale agreement by
adducing acceptable evidence.
v. The expert who compared the signature of the defendant on the sale
agreement had clearly stated that the sale agreement is a rank
forgery.
vi. A careful comparison of the signature of the defendant on the sale
agreement with that of his admitted signatures would clearly go to
show that the suit sale agreement is a forged document.
vii.The plaintiff has not pleaded his readiness and willingness for
performing his part of the contract.
viii.The plaintiff has not also approached the Court within a reasonable
https://www.mhc.tn.gov.in/judis
S.A.No.15 of 2010
period from the date of the alleged execution of Ex.A1.
8.Aggrieved over the same, the plaintiff filed an appeal in
A.S.No.24 of 2009 before the I Additional District Court, Coimbatore. The
learned I Additional District Judge, Coimbatore, after analysing the oral
and documentary evidence adduced on both sides upheld the findings
recorded by the trial Court and dismissed the appeal vide his decree and
judgement dated 08.09.2009.
9.Now the present second appeal is filed. My learned
predecessor, vide his orders dated 11.01.2010, had admitted the appeal by
observing thus :
"Heard the learned counsel appearing for the petitioner.
2.Notice to the respondent returnable by 11.02.2010.
3.The suit was filed by the petitioner/appellant seeking
specific performance of contract based on the alleged
agreement dated 31.12.1999. Based on the substantial
question of law raised by the appellant, the second appeal
has been admitted"
https://www.mhc.tn.gov.in/judis
S.A.No.15 of 2010
The substantial question of law mentioned in the second appeal are
extracted hereunder :
i. "When an agreement of sale is not a document that requires
compulsory attestation under Section 68 of the Evidence act, when
the signature in the agreement of sale is denied, whether the proof
of such document requires such strict proof in the manner as said
under Section 68 of the Evidence Act.
ii. When the agreement of sale was proved by the scribe along with the
statement of a deceased witness, whether such proof satisfies the
requirement of the proof of document which is not otherwise
requiring compulsory attestation under Section 68 of the Evidence
Act.
iii. Whether the comparison of the signature by the hand writing expert
of the disputed signature along with the signature taken subsequent
to the suit and during the course of the proceedings is lawful and
such investigation found out of such comparison has any legal
sanction and approval.
iv. Whether the finding of the Court that signatures found in a disputed
document simply because they were of different inks, whether such
https://www.mhc.tn.gov.in/judis
S.A.No.15 of 2010
basis to form the above opinion is legal.
10. Heard, Ms.Elizabeth Ravi, learned counsel for the appellants
and Ms.M.V.Kalaichitram, learned counsel for the second respondent.
11. Ms.Elizabeth Ravi, learned counsel for the appellants
contended that both the Courts below had committed an error by relying
on the expert's evidence especially when handwriting expert did not
compare signatures of the defendant with the contemporary documents. It
is also her contention that though she adduced several documents to show
her possession over the suit property apart from filing the judgment
passed in O.S.No.347/2000, both the Courts below did not appreciate
these evidence properly. It is further contended that both the Courts below
did not compare the signature of the defendant with the contemporary
documents and on the other hand the defendant was made to sign in open
Court during the year 2008 and the same was compared with the sale
agreement dated 31.12.1999. She had prayed for allowing the present
second appeal.
https://www.mhc.tn.gov.in/judis
S.A.No.15 of 2010
12. Per contra, Ms.M.V.Kalaichitram, learned counsel for the
second respondent contended that both the Courts below after analysing
the oral and documentary evidence adduced on both sides had
concurrently held that the suit sale agreement is a forged document and
that no interference by this Court is warranted as there is no substantial
question of law involved in the present second appeal. It is also her
contention that the plaintiff had failed to examine the attesting witness to
prove the execution of the sale agreement and that the observation of both
the Courts below that the plaintiff had not established the genuineness of
Ex.A1 is perfectly in order.
13. The specific contention of the plaintiff is that she has been in
possession and enjoyment of the suit property as a lessee since the year
1992. According to her, she entered into a sale agreement dated
31.12.1999 (Ex.A1) in respect of the suit property with the defendant and
also paid a sum of Rs.1,20,000/- towards advance. According to her,
though she was ready to perform her part of the contract, the defendant
did not come forward to execute the sale deed in her favour. In order to
prove the execution of the sale agreement, the plaintiff mainly relied on
https://www.mhc.tn.gov.in/judis
S.A.No.15 of 2010
her evidence as PW1 and also the evidence of the scribe (PW2). On the
other hand, the contention of the defendant is that the sale agreement is a
rank forgery and that the plaintiff was never in possession of the suit
property. According to her, the plaintiff was only a permissive occupier of
the suit property and therefore, the suit filed by the plaintiff is liable to be
dismissed.
14. According to the plaintiff, she continued to be in possession
of the suit property pursuant to the sale agreement (Ex.A1). However,
there is no pleading in this regard in the plaint. The contention of the
learned counsel for the appellant is that she has filed numerous documents
in O.S.No.347/2000 before the District Munsif, Udumulpet and in the
judgment passed in O.S.No.347/2000 (Ex.A7), it is held that the plaintiff
is in possession of the suit property. It is not known as to why the plaintiff
has not filed those documents in the present suit. The suit in
O.S.No.347/2000 was filed for bare injunction based on possession, the
suit was decreed. The contentions of the defendant is that the plaintiff is
only a permissive occupier. The present suit is filed for specific
performance of contract. The plaintiff's contention is that in pursuance of
https://www.mhc.tn.gov.in/judis
S.A.No.15 of 2010
the sale agreement dated 31.12.1999 she has been in possession of the
suit property. As already observed, there is no specific pleading in this
regard in the plaint.
15. In the plaint, the plaintiff had contended that she developed
the suit property by incurring an expenditure of Rs.1,00,000/- but she has
not adduced any documentary evidence to substantiate her contention in
this regard. A perusal of Ex.A4 and Ex.A5 which are the lawyer's notice
issued by the plaintiff to the defendant and a letter sent by the Electricity
Board to the plaintiff's counsel respectively would go to show that the
Service Connection No.353 was disconnected and the plaintiff in her
plaint had admitted that the service connection belongs to the defendant.
Except examining the scribe of the sale agreement the plaintiff did not
examine any of the attesting witness. In fact the plaintiff during the course
of cross examination had contended that one of the attesting witnesses
Subburayalu, who is her brother is dead and that she does not know who
is the other attesting witness. She also admitted that she did not witness
the attestors signing the document in her presence. No doubt it is true that
the sale agreement is not a document which requires to be compulsorily
https://www.mhc.tn.gov.in/judis
S.A.No.15 of 2010
attested. The plaintiff who filed the suit for specific performance of
contract has to prove the execution of the sale agreement especially when
the defendant had denied the execution itself.
16. A handwriting expert compared the signature of the
defendant in the sale agreement with his admitted signatures and had
opined that the sale agreement is a forged document. The hand writing
expert was examined as DW2 and he had deposed that there will not be
much changes in the handwriting of a person within a short period.
However, both the Courts below did not dismiss the suit mainly based on
the expert's opinion. The other circumstances including the evidence
adduced on both sides were taken into account by both the Courts below.
In fact the First Appellate Court in Para 12 of his judgment had observed
thus :
"12. As already discussed one Mani was also cited as
attesting witnesses. In the cross-examination of PW1, she
has deposed as if she alone paid the advance amount,
subsequently she immediately changed her version and
deposed that at the time of paying the advance amount,
subsequently she immediately changed her version and
https://www.mhc.tn.gov.in/judis
S.A.No.15 of 2010
deposed that at the time of paying the advance sale
consideration. witness Subbarayalu, Krishnasamy and
scribe and Mani were present. Her evidence is as follows:-
" gzk; nfhLj;jNghJ ehd; kl;Lk; ,Ue;Njd;. rhl;rp
clNd Rg;guhaY : fpU~;zrhkp, vOj;jhsh; kzp
MfpNahh; ,Ue;jjhff; $Wfpwhh;."
If this admission of PW1 considered along with her specific
admission in the re-examination and cross-examination in
page No.3. She has categorically stated that she did not
know who is another witness her evidence is as follows :-
" ,e;jf; fpiua xg;ge;jj;jpy; rhl;rpf; ifnaOj;J nra;j
Rg;guhaY ,we;Jtpl;lhh;. kw;nwhU rhl;rp ahh; vd;W
vdf;Fj; njhpahJ"
Further, in the cross examination she is admitted that
" kzp vd;gth; ifnaOj;J Nghl;lij ehd;
ghh;ff
; tpy;iy. mNjNghy; ehd; ifnaOj;J
Nghl;lijAk; kzp ghh;ff; tpy;iy".
Therefore, the evidence of PW1 herself clearly show some
doubt in Ex.A1 agreement. If her evidence as to payment of
consideration in the presence of Mani and Subbarayalu is
(end of the 8th page in the original) believed as a true
version then her cross-examination clearly militate against
her own admission. She claimed that she does not know who
is another witness, and further, she has also asserted that
https://www.mhc.tn.gov.in/judis
S.A.No.15 of 2010
the witness Mani did not witness her affixing her thumb
impression in the Ex.A1 document. Therefore, the evidence
of the PW1 and PW2 with regard to the signing of the
document by witnesses also create serious doubt about the
genuineness of the Ex.A1 agreement. Though it is a
repetition as already held, PW2 has deposed that all the
witnesses have signed in his office. Thereafter, PW1 put her
thumb impression in her land, this evidence of PW2 is
considered along with Ex.A12, the evidence of the one of the
attesting witnesses Subbarayalu who was examined in
O.S.347/2000 in between the same parties and also in
connection with the same agreement. The entire genuineness
of the agreement itself could be suspected very well. The
cross-examination of the witnesses Subbarayalu before the
District Munsif's Court in O.S.347/2000 clearly create cloud
and suspicion about the existence of Ex.A1. He has admitted
as follows :
" Fj;jif tptuk; vdf;F Nehpy; njhpahJ. ehd; rhl;rpf;
ifnaOj;J Nghl;Ls;s jhth xg;ge;jk; ve;jj;Njjpapy;
ve;j thuk; ve;j Njjpapy; vOjg;gl;lJ vd;gJ vdf;F
Qhgfk; ,y;iy. jhth g+kp rk;ge;jkhf ehd; $l ,Ue;J
fpiuak; Ngrtpy;iy. jhth xg;ge;jj;jpy; vd;Dld;
ifnaOj;Jg;Nghl;l kw;nwhU rhl;rp ahh; vd;W vdf;Fj;
njhpahJ. Njhl;lj;Jr; rhiyapy; itj;J
ifnaOj;Jg;Nghl;Nld;. rhl;rpf; ifnaOj;Jg;
NghLk;NghJ ntq;fpl;lk;khs; kw;Wk; mth; fzth; kw;Wk;
https://www.mhc.tn.gov.in/judis
S.A.No.15 of 2010
ntspa+h;fhuh;fSk; ,Ue;jhh;fs;. me;j ntspa+h;fhuh;fs;
ahh; vd;Nw vdf;Fj; njhpahJ. fpU~;zrhkp
xg;ge;jj;jpid vOjpf;nfhz;L te;jhh;. mjid ahh;
vOjpdhh;fs; vd;W vdf;Fj; njhpahJ".
From the above admission of the one of the attesting (end of
the 9th page in the original) witnesses Subbarayalu who is
none other than the brother of the plaintiff under Ex.A12
clearly create doubt about the PW2's evidence. Whereas
PW2 has deposed of the witnesses including the
Subbarayalu signed the document in his office. Whereas
Subbarayalu has deposed before the lower court that he has
signed only in the land. Therefore, the PW2's evidence
coupled with the admission of the one of the attesting
witnesses Subbarayalu under Ex.A12 and also the evidence
of PW1 create serious doubt about the very existence of the
agreement, as already pointed out the signature of
witnesses found in different ink. It is the specific defence of
the defendant that he never executed agreement. signature
found in the agreement is not that of his signature."
The plaintiff had filed the deposition of one of the attesting witness
Subbarayalu as Ex.A12. A perusal of Ex.A12 shows that Subbarayalu had
deposed thus :
" Fj;jif tptuk; vdf;F Nehpy; njhpahJ. ehd; rhl;rpf; ifnaOj;J
https://www.mhc.tn.gov.in/judis
S.A.No.15 of 2010
Nghl;Ls;s jhth xg;ge;jk; ve;jj;Njjpapy; ve;j thuk; ve;j Njjpapy;
vOjg;gl;lJ vd;gJ vdf;F Qhgfk; ,y;iy. jhth g+kp rk;ge;jkhf
ehd; $l ,Ue;J fpiuak; Ngrtpy;iy. jhth xg;ge;jj;jpy; vd;Dld;
ifnaOj;Jg;Nghl;l kw;nwhU rhl;rp ahh; vd;W vdf;Fj; njhpahJ.
Njhl;lj;Jr; rhiyapy; itj;J ifnaOj;Jg;Nghl;Nld;. rhl;rpf;
ifnaOj;Jg; NghLk;NghJ ntq;fpl;lk;khs; kw;Wk; mth; fzth;
kw;Wk; ntspa+h;fhuh;fSk; ,Ue;jhh;fs;. me;j ntspa+h;fhuh;fs; ahh;
vd;Nw vdf;Fj; njhpahJ. fpU~;zrhkp xg;ge;jj;jpid
vOjpf;nfhz;L te;jhh;. mjid ahh; vOjpdhh;fs; vd;W vdf;Fj;
njhpahJ".
Thus the evidence of attesting witness Subbarayalu does not fit in with the
evidence of PW2 since PW2 had deposed that Subbarayalu signed the
document in his office. Thus the evidence of PW1, PW2 & Ex.A12 creates
doubt with regard to the execution of Ex.A1 sale agreement. All these
aspects are gone into extenso by both the Courts below. They had
concurrently held that the sale agreement is a forged document. The
conclusion arrived at by both the Courts below are based on facts of the
case and I do not see any reason to interfere with their findings. The
contention of the counsel for the appellant is that the Courts below as well
as the handwriting expert had compared the signatures of the defendant
https://www.mhc.tn.gov.in/judis
S.A.No.15 of 2010
on Ex.A1 and the signatures made by him in open court and therefore, the
same cannot be accepted. It is true that both the Court below did not
compare the signature of the defendant with contemporary documents. It
is also pertinent to point out as to why the plaintiff did not call for the
contemporary documents and accepted for getting the signature of the
defendant in open court. He did not file any revision against the same.
However, as already observed, both the Courts below had taken into
account the other circumstances, evidence adduced on the side of the
plaintiff. The opinion by the expert and the courts are only one of the
grounds. Even if we leave that aspect in entirety, the fact remains that the
plaintiff did not prove the execution of Ex.A1. The evidence of PW1, PW2
and one of the attestor (Ex.A12) did not corroborate with each other.
These are findings based on facts by both the Courts below. In fact there
is no substantial question of law involved in the present second appeal.
17. It is also pertinent to mention that this a second appeal
under Section 100 of the Code of Civil Procedure where the jurisdiction of
the High Court is confined to a substantial question of law. A full Bench
of the Supreme Court in Bholaram Vs. Ameerchand reported in AIR
https://www.mhc.tn.gov.in/judis
S.A.No.15 of 2010
1981 SC 1209 has held that the High Court cannot interfere with the
concurrent factual findings of courts below in a second appeal. In fine, the
second appeal fails and is dismissed. Thus, the substantial questions of
law raised in the grounds of appeal are answered against the appellant.
18. In the result,
i. the Second Appeal is dismissed. No costs.
ii. The decree and judgment dated 08.09.2009 in A.S.No.24 of 2009
on the file of the I Additional District Court, Coimbatore and the
decree and judgment dated 22.09.2008 in O.S.No.167 of 2002 on
the file of the Sub Court, Udumalpet, are upheld.
07.06.2023
mtl
Index : Yes/No
Speaking / Non-speaking order
https://www.mhc.tn.gov.in/judis
S.A.No.15 of 2010
R.HEMALATHA, J.
mtl
To
1. The I Additional District Court, Coimbatore.
2. The Sub Court, Udumalpet.
3. The Section Officer, VR Section, High Court, Madras.
S.A.No.15 of 2010
07.06.2023
https://www.mhc.tn.gov.in/judis
