D. Kuppuswami & Ors. v. P. Arumuga Naidu

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 15.10.2009CORAM:THE HONOURABLE MR.JUSTICE M.JAICHANDRENS.A.No.1252 of 19951. D.Kuppuswami2. Kuppammal3. Vengatesan Minor rep. by next friend and natural guardian and mother Kuppammal.. Appellants/Plaintiffs Vs.1. P.Arumuga Naidu (died)2. Mrs.A.Padma3. Mr.A.Sathi4. Mr.A.Palani5. Mrs.Jaya6. Mrs.Rani Respondents 2 to 6 are brought on record as LRs of the deceased, sole respondent vide order of this Court dated 16.7.2007 made in C.M.P.No.10687 of 1996 .. Respondents/Defendants This second appeal has been filed against the judgment anddecree dated 21.9.1994 made in A.S.No.2 of 1994 on the file of theSub Court, Tirupattur, confirming the judgment and decree dated30.9.1993 made in O.S.No.777 of 1983 on the file of the DistrictMusif Court, Tirupattur. For Appellants : Mr.T.P.Sankaran For Respondents : Mr.R.Vijayaraghavan J U D G E M E N TThis second appeal has been filed against the judgment anddecree, dated 21.9.1994, made in A.S.No.2 of 1994, on the file of theSub Court, Tirupattur, confirming the judgment and decree, dated30.9.1993, made in O.S.No.777 of 1983, on the file of the DistrictMusif Court, Tirupattur. https://hcservices.ecourts.gov.in/hcservices/

2. The plaintiffs in the suit, in O.S.No.777 of 1983, are theappellants in the present second appeal and the defendant is therespondent in the present second appeal. However, in view of the factthat the respondent had died, his legal heirs had been brought onrecord as respondents 2 to 6, by an order of this court, dated16.7.2007 made in C.M.P.No.10687 of 1996. The appellants herein, whowere the plaintiffs in the suit, had filed the suit, in O.S.No.777 of1983, praying for the relief of specific performance and for costs. 3. The brief facts of the case, as stated by the plaintiffs inthe plaint filed in O.S.No.777 of 1983, are as follows:The property, morefully described in the scheduled appended tothe plaint, is the self acquired property of the plaintiffs. From thedate of purchase, the plaintiffs are in possession and enjoyment ofthe said property and they have been raising crops therein. Thus, theplaintiffs are the absolute owners of the suit property. theplaintiffs sold away the suit property in favour of the defendant,namely, P.Arumuga Naidu, for a sum of Rs.6,000/-, as per theregistered sale deed, dated 3.7.1980. The possession in respect ofthe suit property, had been delivered to the defendant, on the samedate.4. The defendant had undertaken to reconvey the suit property infavour of the plaintiffs, by entering into a reconveyance agreement,on 3.7.1980. According to the said agreement, the defendant hadagreed to reconvey the suit property, in favour of the plaintiffs,for a sum of Rs.6,000/-. An advance of Rs.50/- had also been paid, on3.7.1980. The defendant had further agreed to execute the sale deed,in favour of the plaintiffs 1 and 3, after receiving the balance saleconsideration of Rs.5,950/-, on or before 2.7.1983, within threeyears from the date of the reconveyance agreement. Thus, thedefendant had agreed to reconvey the suit property, as and when theplaintiffs demanded the same. Thereafter, the plaintiffs haddemanded the reconveyance of the suit property and had therefore,asked the defendant to execute the registered sale deed afterreceiving the sale consideration of Rs.5,950/-, on several occasions.However, the defendant had not taken steps to reconvey the suitproperty, to the plaintiff, as already agreed. 5. On several occasions, the plaintiffs had been demanding thereconveyance of the suit property. However, they had been postponingthe event on one pretext or the other. Thereafter, on 30.6.1983, theplaintiff had requested the defendant to execute the sale deed intheir favour. Though the defendant had assured the plaintiffs that hewould execute the sale deed, soon thereafter, he had not done so. Insuch circumstances, the plaintiffs had issued a notice through theircounsel, on 1.7.1983, calling upon the defendant to execute the sale, https://hcservices.ecourts.gov.in/hcservices/ as agreed by the defendant, under the agreement of reconveyance,dated 3.7.1980. Even though the plaintiffs had always been ready andwilling to perform their part of the contract, the defendant hadfailed to perform his duty. 6. In such circumstances, the plaintiffs had filed the presentsuit praying for the relief of specific performance and for costs. 7. In the written statement filed on behalf of the defendant, hehad denied the allegations made in the plaint. However, the defendanthad admitted that the plaintiffs had sold the suit property, to thedefendant, on 3.7.1980, for a sum of Rs.6,000/- and that thepossession of the suit property had been delivered to the defendant,who has been in possession and enjoyment of the suit property as itslawful owner, pursuant to the said sale. However, the defendant haddenied the claim of the plaintiffs that a reconveyance agreement,dated 3.7.1980, had been entered into between the plaintiffs and thedefendant, for a sale consideration of Rs.6,000/-. 8. The defendant had further stated that the allegations of theplaintiffs that they had received a sum of Rs.50/-, on 3.7.l980, asadvance, is false. The defendant had never agreed to execute a saledeed, in respect of the suit property, in favour of the plaintiffs,as alleged by them. Therefore, the demand made by the plaintiffs, forthe reconveyance of the suit property, is baseless. The claim of theplaintiffs that they had requested the defendant to execute the saledeed in their favour is also false. The alleged reconveyanceagreement, dated 3.7.1980, is a forged document. Since, there is nocause of action for filing of the suit, the suit is liable to bedismissed.9. An additional written statement had been filed by thedefendant stating that, in view of the dismissal of I.A.No.1401 of1985, on 21.11.1985, and I.A.No.1399 of 1985 and I.A.No.1400 of 1985,on 21.11.1985, the plaintiffs 4 and 5 cannot be brought on record, asthe legal representatives of the third plaintiff. Further, theplaintiffs 4 and 5 are the representativesof the first plaintiff.Hence, it is prayed that the suit is liable to be dismissed. 10. In view of the averments made in the plaint filed on behalfof the plaintiffs and the written statements filed by the defendantand in view of the submissions made on their behalf, the trial Courthad framed the following issues for consideration:"(i) Whether or not the claim of the plaintiffs thatthe defendant had entered into an agreement of reconveyance,dated 3.7.1980, is correct?(ii) Whether or not the plaintiffs had paid an advanceof amount of Rs.50/- as part of the sale consideration? https://hcservices.ecourts.gov.in/hcservices/ (iii) Whether or not the plaintiffs had demanded thatthe defendant should reconvey the suit property, inaccordance with the agreement of reconveyance? (iv) Whether the claim of the defendant that thereconveyance agreement, dated 3.7.1980, has been forged iscorrect? (v) What reliefs the plaintiffs are entitled to?" 11. The trial Court had also framed the two additional issues,which are as follows:"(i) Whether the plaintiffs 4 and 5 are the legalheirs of the third plaintiff?(ii) Whether the inclusion of the plaintiffs 4 and 5as legal heirs of the third plaintiff is valid in law?"12. Four witnesses had been examined on behalf of the plaintiffsand one witness had been examined on behalf of the defendant. WhileSeven documents had been marked as exhibits on behalf of theplaintiffs, no document had been marked on behalf of the defendant.13. In view of the oral, as well as the documentary evidenceadduced on behalf of the plaintiffs, as well as the defendant, thetrial court had come to the conclusion that the reliefs sought for bythe plaintiffs cannot be granted. The trial Court had found thatP.W.1 examined on behalf of the plaintiffs had stated, during hiscross examination, that he did not know the survey number of theproperty, in respect of which, Exhibit A.2 reconveyance agreement,dated 3.7.1980, had been written. He did not know the day on whichthe said agreement was made. 14. The trial Court had also found that Exhibit A.2 reconveyanceagreement had not been registered and that it had also not beenwritten on a stamp paper, with the correct value. He had also statedthat he did not write any letter to the defendant asking him toexecute a sale deed, in view of the reconveyance agreement, dated3.7.1980, marked as Exhibit A.2. 15. It had also been found that P.W.2 had admitted, during hiscross examination, that P.W.1 is his son-in-law. He had furtherstated that he had not seen the parent document, when Exhibit A.2,reconveyance agreement, was written. Further, he had admitted thatthe signature of the defendant in Exhibit A.2 has not been verifiedand that he had not written any note about the insertion made inExhibit A.2. 16. The trial court had also taken note of the fact that D.W.1, https://hcservices.ecourts.gov.in/hcservices/ during his cross examination, had stated that P.W.2 and P.W.4 wererelated to the plaintiffs and therefore, they cannot be considered tobe independent witnesses. 17. The trial Court had also noted that the original sale deed,dated 3.7.1980, marked as Exhibit A.1, had not been filed before theCourt. Exhibit A.2 reconvenayce agreement has not been written on astamp paper, with the correct value. Further, nothing has beenmentioned as to who would be liable to bear the cost, that would beincurred during the execution of the sale deed, in respect of thesuit property. Further, there was no mention about the payment of theadvance amount of Rs.50/-, said to have been paid at the time ofwriting of the reconvayance agreement. 18. Further, the plaintiffs had not produced any receipt for thepayment of the said amount, nor have they filed any other document tosubstantiate the said claim. The trial Court had also noted that inthe evidence of P.W.1, it has been stated that he did not know theextent of the property in question and that he was not aware of thedate on which the Exhibit A.2, the reconveyance agreement, had beenentered into. The trial Court had also noted that P.W.3, examined onbehalf of the plaintiffs, had stated that he had not verified thesignature of the defendant in Exhibit A.2 reconveyance agreement,even though he had written both Exhibits A.1 and A2 documents. 19. In such circumstances, the trial Court had compared thealleged signature of the defendant supposed to have been affixed byhim in Exhibit A.2 reconveyance agreement, along with his signaturein the vakalat filed by the defendant in the suit, in O.S.No.777 of1983, and in the written statement and in the deposition copies. Onsuch comparison, the trial Court had found that there was a vastdifference between the signature that was found in Exhibit A.2, thereconveyance agreement and those that were found in the vakalat,written statement and in the deposition copies. Further, the trialCourt had found that the plaintiffs 4 and 5 are the legal heirs ofthe deceased third plaintiff. Based on the said reasons, the trialCourt had dismissed the suit filed by the plaintiffs, in O.S.No.777of 1983, by its judgment and decree, dated 30.9.1993.20. Aggrieved by the judgment and decree of the trial Court,dated 30.9.1993, the plaintiffs in the suit had filed an appeal, inA.S.No.2 of 1994, on the file of the Subordinate Court, Tirupattur.The first appellate Court had framed the following points forconsideration:"1. Whether or not the respondent/defendant had writtenthe reconveyance agreement, dated 3.7.1980?" 21. On considering the evidence available on record, the firstappellate Court had found that the defendant had categorically denied https://hcservices.ecourts.gov.in/hcservices/ the allegations of the plaintiffs that he had signed the reconveyanceagreement, dated 3.7.1980, marked as Exhibit A.2. He had also statedthat the signature found in the alleged reconveyance agreement,dated 3.7.1980, is not his signature. In view of the denial of thedefendant, the first appellate Court had held that it is for theplaintiffs to prove that the signature said to have been affixed onthe reconveyance agreement, dated 3.7.1980, belongs to the defendant.Since the plaintiffs had failed to discharge the onus of proof, itbecame necessary for the trial Court, as well as the first appellateCourt, to compare the signature found on the alleged reconveyanceagreement of sale, dated 3.7.1980, with the signature found in thevakalat and the written statement filed by the defendant in the suit,in O.S.No.777 of 1983. On such comparison, both the Courts below hadfound that there was vast difference between the signature found onthe alleged reconveyance agreement, marked as Exhibit A.2 and those,which were found in the vakalat and the written statement filed bythe defendant. Such an exercise shall be carried out, in accordancewith Section 73 of the Evidence Act. Accordingly, the first appellateCourt had dismissed the first appeal filed by the plaintiffs,confirming the judgment and decree of the trial Court, dated30.9.1993.22. Aggrieved by the concurrent findings of the first appellateCourt, made in A.S.No.2 of 1994, the plaintiffs in the suit, who werethe appellants in the first appeal, had filed the second appealbefore this Court. 23. This court had admitted the second appeal on the followingsubstantial question of law:“Whether the Courts below were correct in stating that theagreement of reconveyance, dated 3.7.1980, is invalid onthe ground that the signature of the vendor(defendant/respondent herein) contained therein is not thatof his own without examining the signature contained in thereconveyance dated 3.7.1980 by an Handwriting Expert, inview of the decision of the Supreme Court in AIR 1979S.C.14 and AIR 1992 S.C.2100?”24. The learned counsel appearing for the appellants hadsubmitted that the Courts below had erred in holding that thesignature found in Exhibit A.2, dated 3.7.1980, was not the signatureof the respondent and that it was fabricated and that the respondenthad not executed any agreement for reconveyance of the suit propertyand that the appellants had not paid any advance of Rs.50/-, asclaimed by them. 25. It has also been submitted that the Courts below had failedto note that the genuineness of Exhibit A.2 had been clearlyestablished by the oral evidence adduced on behalf of the appellants. https://hcservices.ecourts.gov.in/hcservices/ While so, there was no necessity for the Courts below to embark on aninvestigation, by comparing the signature of the respondent. 26. Both the trial Court, as well as the first appellate Court,had failed to follow the provisions of Section 73 of the IndianEvidence Act that the disputed signature ought to have been comparedwith the admitted signatures, which were contemporaneous and itshould not have been done with the admitted signature obtainedsubsequent to the date of the disputed signature. 27. It was erroneous on the part of the Courts below to comparethe signature with the admitted signature in the vakalat, writtenstatement and the depositions copies, as it could lead to a wronginference. In fact, the signature ought to have been sent forcomparison to an expert, under Section 45 of the Indian Evidence Act.Thus, the conclusions arrived at by the Courts below, in respect ofthe disputed signature in Exhibit A.2, is not in accordance with theestablished procedures and the decisions of the Courts of law. 28. The learned counsel appearing for the appellants had alsosubmitted that the Courts below have not given sufficient reasons tocome to their conclusions holding that the witnesses examined onbehalf of the plaintiffs were interested witnesses. Proper reasonshad not been given to reject the evidence adduced on behalf of theplaintiffs. The Courts below had erroneously rejected the evidence ofthe witnesses examined on behalf of the plaintiffs, based on thepresumption that the interested witnesses are necessarily falsewitnesses. There was no acceptable evidence adduced on behalf of therespondent to support his claim that the reconveyance agreement,dated 3.7.1980, marked as Exhibit A.2, was a forged document. 29. The learned counsel for the appellants had placed beforethis Court the following decisions in support of his contention thatthe evidence adduced by the interested witnesses cannot be alwaystaken to be false or incorrect. The evidentiary value of suchinterested witnesses would have to be assessed based on the facts andcircumstances of each case. Their testimony cannot be totallydiscarded, merely on the ground that they are interested witnesses.The said decisions are as follows:(i) AIR 1994 SC 748 (SURAJ PAL Vs. STATE OF U.P.)(ii)AIR 1996 SC 3429 (RAM LAKSHAN Vs. STATE OF U.P) (iii)AIR 1997 SC3946 (BAITULLAH Vs. STATE OF U.P.)(iv) AIR 1996 SC 3265 (RAM SANJIWAN SINGH Vs. STATE OF BIHAR)(v) AIR 1985 SC 1384 (STATE OF U.P.Vs. BALLABH DAS)(vi) AIR 1983 SC 839 (STATE OF GUJARAT Vs. NAGINBHAI)(vii)AIR 1992 SC 891 (CHANDRA MOHAN TIWARI Vs. STATE OF MADHYAPRADESH)(viii)AIR 1971 SC 460 (RAMABHUPALA REDDY Vs. STATE OF A.P.) https://hcservices.ecourts.gov.in/hcservices/ (ix) AIR 1976 SC 2304 (SARWAN SINGH Vs. STATE OF PUNJAB)(x) AIR 1994 SC 1407 (P.S.RAO Vs. STATE OF A.P.) 30. The learned counsel had also relied on the followingdecisions in support his contention that the disputed signatures canbe compared with the admitted signatures, which are contemporaneousand not obtained subsequent to the date of disputed signatures andthat such comparison is to be done with sufficient caution. The saiddecisions are as follows:1. KESSARBAI Vs. JETHABHAI JIVAN (AIR 1928 PRIVY COUNCIL 277) 2. SOMASUNDARAM Vs. PALANI (2000-1-L.W.511)3. GANAPATHY THEVAR Vs. SHANMUGA THEVAR (2008) 6 MLJ 220 4. CENTRAL BANK OF INDIA Vs. ANTONY HARDWARE MART (2006 (3) CTC 39) 31. Per contra, the learned counsel appearing for therespondents had submitted that both the Courts below had arrived atthe right conclusion on proper appreciation of the evidence availableon record. It cannot be said that the plaintiffs had proved theircase based on the oral evidence adduced by P.W.1 to P.W.4. Theevidence adduced on behalf of the plaintiffs by interested witnesses,cannot be considered to be sufficient proof of the claims made onbehalf of the plaintiffs. The witnesses examined on behalf of theplaintiffs could not clearly state the day on which the reconveyanceagreement had been concluded. The comparison of the signature by theCourts below was in accordance with the provisions of law enshrinedin the Indian Evidence Act, 1872. Further, the Courts below had alsoexamined the conduct of the plaintiffs in arriving at theirconclusions. There is no evidence adduced on behalf of the appellantsto show that they were always ready and willing to conclude the sale,in accordance with the alleged reconveyance agreement, dated3.7.1980. In such circumstances, the Courts below had rightly refusedto grant the reliefs prayed for by the appellants. 32. In view of the contentions raised on behalf of theappellants, as well as the respondents and on a perusal of theevidence available, this Court is of the considered view that theappellants have not shown sufficient cause or reason to interferewith the concurrent findings of the Courts below. The plaintiffs hadfailed to establish their claims, by adducing sufficient evidence.There was no proper evidence to show that the respondents had signedthe reconveyance agreement, dated 3.7.1980, marked as Exhibit A.2.Proper reasons had not been shown by the appellants for such anagreement to be written and signed on the same day, when the suitproperty had been sold by the appellants to the respondents. https://hcservices.ecourts.gov.in/hcservices/

33. There was no evidence to show that an advance amount ofRs.50/- had been paid to the respondent, as part of the agreed saleconsideration of Rs.6,000/-. The appellants had not discharged theonus of proof to show that the signature, that was found in ExhibitA.2, was that of the respondent, especially, when the respondent hadasserted that the signature found in the reconveyance agreement,dated 3.7.1980, was not his signature. The Courts below had rightlyfound that sufficient evidence had not been adduced on behalf of theplaintiffs through, independent witnesses, to prove that therespondent had signed the reconveyance agreement, on 3.7.1980 andthat the appellants had always been ready and willing to performtheir part of the contract. 34. It is clear that the Courts below have come to theirconclusions not only on the basis of the comparison of the disputedand admitted signatures but also on the basis of the oral, as well asthe documentary evidence available on record. In such circumstances,the contentions raised on behalf of the appellants cannot becountenanced. Accordingly, the second appeal is liable to bedismissed. Hence, it stands dismissed. No costs. Sd/Asst.Registrar/true copy/ Sub Asst.RegistrarTo:1. The Sub Court, Tirupattur,2. The District Musif Court, Tirupattur3. The Section Officer, V.R.Section, High Courot, Madras+ 1 cc to Mr.T.P.Shankaran, Advocate (SR 54611)+ 1 cc to Mr.R.Vijayaraghavan, Advocate (SR 55076)S.A.No.1252 of 1995KA (CO)RH (22.12.2009)