Madras High Court
G. Sakthikumar vs A.S. Selvaraj on 30 November, 2023
A.S.No.342 of 2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 30.11.2023
CORAM
THE HONOURABLE MR.JUSTICE C.KUMARAPPAN
A.S.No.342 of 2016
G. Sakthikumar ...Appellant
Vs
A.S. Selvaraj ... Respondent
Prayer: This First Appeal is filed under Section 96 of C.P.C against the
Judgment and Decree of the learned fourth Additional District and Sessions
Judge of Coimbatore in O.S.No.5 of 2011 dated 19.12.2012.
For Appellant :Mr.N.Ramesh
For Respondent : Mr.S.S.Swaminathan
1/18
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A.S.No.342 of 2016
JUDGEMENT
This First appeal has been filed to set aside the Judgment and Decree
of the learned Fourth Additional District and Sessions Judge, of Coimbatore
in O.S.No.5 of 2011 dated 19.12.2012. This Court disposed of the First
Appeal as per the instructions of My Lord the Hon'ble Chief Justice vide
administrative order dated 21.11.2023.
2. The Appellant herein is the defendant and the respondent herein is
the plaintiff before the Trial Court.
3. For the sake of convenience, the parties will be referred according
to their litigative status in the suit.
4. The plaint avernments in brief are as follows:-
(i) According to the plaintiff, the defendant is the absolute owner of
the suit property by virtue of the decree for partition suit in O.S.No.2575 of
1999 on the file of the District Munsif Court, Coimbatore. On 08.07.2002,
the defendant received a sum of Rs.1,70,000/- from one S.Sasireka, wife of
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A.S.Selvaraj, and handed over possession of a portion of the property, and
executed a bogiya agreement( usufructuary mortgage) in her favour. As per
the recitals of the bogiya agreement, the said Mrs.S.Sasireka had been in
possession and enjoyment of the suit property. Subsequently, for urgent
need, the defendant received another sum of Rs.2,50,000/- from the plaintiff
on 20.08.2004 and executed another bogiya agreement in respect of the
upstair portion in Door No.190 which also belongs to the defendant. As
such, the plaintiff and his family members are in possession and enjoyment
of the mortgaged property by virtue of the usufructuary mortgage deeds.
(ii) Since the defendant is not in a position to repay the said amounts,
the defendant agreed to sell the suit property to the plaintiff and a sale
agreement was entered into on 13.10.2009. The sale Price was fixed at
Rs.15,00,000/-, and the time for performance was determined as 11 months.
According to the plaintiff, on the date of the said sale agreement, a sum of
Rs.10,30,000/- was paid to the defendant. The amount which have been
paid as a mortgage amount of Rs.4,20,000/- paid on 08.07.2002 and
20.08.2004 were also adjusted towards part of the sale consideration.
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(iii) Hence, the plaintiff totally has paid a sum of Rs.14,50,000/- as an
advance amount against the total sale consideration of Rs.15,00,000/-. The
plaintiff is ready and willing to perform his part of the agreement. The
defendant received the advance amount from the plaintiff under the promise
to settle the mortgage debt due to one Mrs.M.Chitra Mani which was
registered at Joint I Sub Registrar Office, Coimbatore vide Document
No.492 of 2006.
(iv) The plaintiff sent a legal notice on 04.09.2010 requesting the
defendant to execute the sale deed after receiving the balance sale
consideration of Rs.50,000/-. The defendant received the said notice on
06.09.2010 and sent a reply notice on 10.09.2010 to the plaintiff with
untenable pleas.
(v) At the time of execution of the sale agreement, the defendant
handed over all the original documents pertaining to the suit property and
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those documents have been filed along with the plaint. Hence, the plaintiff
has come forward with the suit for specific performance and for a permanent
injunction.
5. Brief averments in the written statements are as follows:-
(i) The defendant mortgaged the suit property with the City Co-
operative Bank for a sum of Rs.1,75,000/- on 05.03.2002. To repay the loan
installments, the defendant was in need of money, hence he let out the
property in favour of the plaintiff''s wife and received a sum of Rs.1,75,000/-
in the year 2002. The plaintiff and his wife continued their possession in the
ground floor of the suit property. Subsequently, in the year 2004, when the
said bank was pressurizing the defendant for repayment of the loan, the
defendant approached the plaintiff, who is a financier, for the loan of
Rs.2,50,000/-. While advancing the loan, the plaintiff prepared two deeds
styled as bhogiyam agreements in four Ten Rupees Stamp papers and got
signatures of the defendant, wherein the plaintiff's wife was an attestor.
(ii) The plaintiff acquired the possession of the first floor of the suit
property only on 03.07.2004. After repeated demands made by the
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defendant, the plaintiff paid a sum of Rs.2,50,000/- to City Co-operative
Bank on 10.10.2005 and got the original title deeds of the suit property
directly from the bank. This defendant disputed the sale agreement and also
disputed the receipt of the sum of Rs.10,30,000/- from the plaintiff. But, he
accepted the receipt of the sum of Rs.1,70,000/- and 2,50,000/-. The suit
property would fetch more than Rs.20,00,000/-. Hence, there was no reason
for him to execute the sale agreement in favour of the plaintiff for a lesser
amount. Ultimately, he prayed to dismiss the suit with costs.
6. The Trial Court, after taking into consideration of the pleadings on
either side and the materials on record, framed the following issues:
“1. Whether the plaintiff is entitled for
specific performance as prayed for?
2. Whether the plaintiff is entitled for
permanent injunction as prayed for?
3. To what other relief?”
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7. Before the Trial Court, the plaintiff examined himself as P.W.1
and one Mr.Senthil Kumar as P.W.2, and 16 documents were marked as
Ex.A1 to Ex.A16. On behalf of the defendant, no documents was marked.
But, the defendant himself was examined as D.W.1. After considering either
side submissions and the materials on record, the Trial Court decreed the
suit as prayed for. Aggrieved by that, the defendant filed the instant appeal.
8(a). Mr.N.Ramesh, the learned counsel for the defendant/appellant,
would vehemently contend that the Trial Court failed to consider the defence
put forth by the defendant, that he had not executed any sale agreement and
has not received the advance amount. It is his further submission that there
was no evidence for consensus ad idem between the plaintiff and the
defendant. The learned counsel would also contend that the mere admission
of signature found in the sale agreement would not suffice to prove the due
execution of the agreement. Therefore, it was ultimately contended that
when the due execution of sale agreement is not proved, the question of
granting a decree for specific performance does not arise.
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8(b).The learned counsel for the appellant/defendant would also
submit that the Trial Court failed to take into consideration of the admission
made by the plaintiff that he is a financier and has been doing money
lending business. It is also his submission hat even the stamp papers used
for writing the usufructuary mortgage deeds would create a suspicion.
Hence, he prays to allow this appeal.
9. Per contra, the learned counsel for the plaintiff/respondent would
vehemently contend that the very execution of the sale agreement has been
proved by examining the attestor of the documents. Therefore, once the
execution of the sale agreement Ex.A4 is proved, by implication of Section
92 of the Indian Evidence Act, there cannot be any contra oral evidence
against the recitals of the sale agreement. Therefore, he would contend that
the very execution of the sale agreement has been proved in a manner known
to law. It is the further submission of the plaintiff that the handing over of
the original document to him would further vindicate the consensus ad idem
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between the plaintiff and the defendant. Therefore, he would submit that the
decree passed by the Court below is liable to be confirmed.
10. After considering the either side submissions and taking into
consideration of the pleadings on either side, this Court formulates the
following points for determination:
“1. Whether the execution of Ex.A4/Sale
Agreement is true, valid and binding?
2. Whether the plaintiff is entitled to a decree for
Specific performance as prayed for ?
3. Whether the plaintiff is entitled for an
injunction as prayed for?
4. To what other relief?. “
11. Now, the entire case revolves around Ex.A4/Sale Agreement. It is
pertinent to mention here that the defendant did not dispute the readiness
and willingness of the plaintiff. However, he disputes the very existence of
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the sale agreement. Therefore, if the execution of the sale agreement is
proved and established, then only the plaintiff is entitled to have a decree
for specific performance.
12. On coming to the proof of the sale agreement, it is the specific
objection of the defendant that he did not execute any sale agreement. In
fact, as per his written statement, the very signature found in Ex.A4/Sale
Agreement was a forged one.
13. However, if we look at the reply notice issued by the defendant,
in pursuance of the notice issued by the plaintiff, the defendant stated that
during 2005, when the plaintiff re-paid the loan of Rs.2,50,000/- in the Co-
operative Bank more particularly on 10.10.2005, this defendant was asked
to sign in several blank stamp papers and 3 promissory notes. Therefore, as
per Ex.A8/reply notice, the signature found in Ex.A4/Sale Agreement was
admitted. However, he disputed only the due execution.
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14. Before proceeding further, this Court deems it appropriate to
discuss about the Judgments in respect of due execution. In this regard, it
would be relevant to refer to the Judgement of this Court in the case of
S.Ramamurthy Vs. Jayalakshmi Ammal [reported in 1990 SCC Online
Madras 501] wherein while interpreting Section 35 of the Registration Act
it has been Observed as follows:
“ 11. Let us first examine the meaning of
“admission of the execution of a document” for
the purpose of Section 35 of the Registration Act,
“The execution of a document is not mere
signing of it. It is a solemn act of the executant
who must own up the recitals in the instrument
and there must be clear evidence that he put his
signature in a document after knowing fully its
contents. The executant of a document must,
after fully understanding the contents and the
tenor of the document, put his signature or affix
his thumb-impression. In other words, the
execution of a document does not mean merely
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signing but signing by way of assent to the terms
of the contract of alienation embodied in the
document.
15.It is also relevant to refer the Judgement rendered by the Division
Bench of the Kerala High Court reported in the case of Kuttadan
Velayudan [ reported in 2001 SCC online Kerala 14], wherein the
relevant portion is extracted hereunder:
“9. To sign means to affix the signature. But
when it comes to the signing of a written
instrument, it implies more than the act of affixing
a signature. It implies more than the clerical act of
writing the name. The intention of the person
signing is important. The person should have
affixed the signature to the instrument in token of
an intention to be bound by its conditions. It has
been said that for a signing consists of both the act
of writing a person's name and the intention in
doing this to execute, authenticate or to sign as a
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witness. The execution of a deed or other
instrument includes the performance of all acts
which may be necessary to render it complete as a
deed or an instrument importing the intended
obligation of every act required to give the
instrument validity, or to carry it into effect or to
give, it the forms required to render it valid. Thus,
the signature is an acknowledgement that the
person signing has agreed to the terms of the
document. This can be achieved only if a person
signs after the document is prepared and the terms
are known to the person signing. In that view of the
matter, mere putting of signature cannot be said o
be execution of the document.”
16. Therefore, the term “due execution” does not mean mere signing
of the documents, but he must know the contents therein after understanding
the nature and contents in the said document and thereby binding himself to
the terms and conditions of the agreement. Here, the defendant in his reply
has stated that he was pressurized to sign in blank stamp papers during
2005. But, in the written statement, he took a defence that Ex.A4 was the
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outcome of forgery committed by the plaintiff.
17. Therefore, the defence is on two folds. One is denying the
execution. The other one is total denial of signature qua forgery. Let us
consider the above defence one after another. While carefully perusing
Ex.8/Reply Notice, it is the contention of the defendant that the defendant's
signature was obtained in blank stamp papers during 2005, whereas the sale
agreement/Ex.A4 was engrossed in a stamp paper, purchased on
20.07.2009. Further, in the reply notice, the defendant stated that he might
be able to give a fitting reply only after seeing the alleged sale agreement
dated 13.10.2009. But, in the written statement, he outrightly denied even
the very signature found in Ex.A4/Sale Agreement.
18. Further, the plaintiff, in order to prove the execution of the sale
agreement, examined the attestor of the sale agreement as P.W.2 and while
perusing the evidence of P.W.2, he narrated as to the execution of the sale
Agreement/ Ex.A4. But, while cross examining P.W.2, the defendant was
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not in a position to get any favourable admission from P.W.2. In fact there
was not even a suggestion to dispute the presence of P.W.2 at the time of
execution of Ex.A4/sale agreement. When the defendant has gone to the
extent of saying that the very sale agreement was forged, his silence for not
taking any steps to prove the alleged forgery would only vindicate that the
case put fourth by the defendant is a false one. It is pertinent to mention here
that, a fact is said to be proved, when after considering the matters before it,
the Court either believes it to exist or considers its existence so probable
that a prudent man ought, under the circumstances of the particular case, to
act upon the supposition that it exists, then the said factum will be construed
as proved.
19. Here in this case, if really the defendant was strong enough in his
case of forgery, even at the time of sending his reply, he would have taken
such a defence of forgery at the initial point of time. But, while sending
Ex.A8/reply notice on 10.09.2010, he took a defence of signing in a blank
paper. To put it in other words, he admitted the signature in the alleged sale
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agreement. However, his case is that he signed in a blank paper during
2005. Whereas, the said factum is evidently falsified as the sale agreement
was engrossed in stamp papers which were purchased during July 2009.
Apart from that, even while cross examining, though he disputed his very
signature, what he contended was that he signed only in the blank 10
Rupees stamp papers.
20. Therefore, though the defendant disputed the very execution of the
sale agreement, from the nature of the case as discussed herein above, this
Court could safely arrives at a conclusion that the defendant duly executed
Ex.A4/Sale Agreement. Therefore, the finding of the Trial Court that
Ex.A4/Sale Agreement is valid, true and binding upon the defendant is liable
to be confirmed. Once this Court found that the execution of the sale
agreement is proved, then by virtue of Section 92 of the Indian Evidence Act,
there cannot be any contra evidence against the sale agreement. Therefore,
this Court rejects the defence put fourth by the defendant that he did not
receive any advance amount.
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21. Here, the defendant did not dispute the readiness and willingness
of the plaintiff to perform his part of the agreement. Once the sale agreement
is proved and the defence of the defendant's disbelieved, as a natural
concomitant the plaintiff is entitled to a decree for specific performance.
22. In the result this first appeal is dismissed by confirming the
Judgment and decree dated 19.12.2012 passed by the learned Fourth
Additional District and Sessions Judge Coimbatore in O.S.No.5 of 2011. No
order as to Costs.
30.11.2023
smn
Index : Yes/No
Speaking order/non-speaking order
To.
The Second Additional District and Sessions Judge of Coimbatore
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C.KUMARAPPAN, J.,
smn
30.11.2023
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