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High Court of Judicature at Madras
V. PERIYA KARUPPIAH
M.M. Yusuf
Versus
R.L. Jadhav (Deceased) & Others
S.A.Nos.1910 & 1911 of 2004
Decided on : 25-07-2012
Specific Performance - Agreement of Sale - Forgery - Handwriting Expert - Amendment of Written Statement - Counter Claim - Limitation.
Fact of the Case:
Plaintiff filed a suit for specific performance of an agreement of sale dated 14.05.1979 for a total consideration of Rs.10,000/-. The 1st defendant, who was the owner of the suit property, executed the agreement of sale. The 2nd defendant was the subsequent buyer of the suit property and claimed to be a bona-fide purchaser for value without notice of the said agreement.
Finding of the Court:
The 1st appellate court had found that Ex.A1 agreement was forged and fabricated one as per the evidence of hand written expert, who was examined as CW1 and through his report Exs.C1 to C3. The court also found that the plaintiff did not come to Court with clean hands and the 2nd defendant cannot be found to have come to Court with unclean hands. The court further found that the plea of the plaintiff that he was put in possession in pursuance of the agreement of sale Ex.A1 (which was not found to be a true document) will not enure any adverse interest or accrue any right of adverse possession as against the defendants.
Issues: 1. Whether the lower appellate court was right in holding that the signatures are forgery on the basis of expert evidence who has admittedly not compared the admitted signature with suit documents ? 2. Whether the lower appellate court was right in dismissing the suit solely relying upon the expert evidence alone, which is not a conclusive proof, overlooking the other evidences available in the suit ? 3.Whether the lower appellate court was right in coming to the conclusion that in the light of his admission during cross examination that he has not compared the disputed signatures with that of admitted signatures and the comparison with vakalat and written statement which are subsequent to the suit ? 4. Whether the court below was right in dismissing the suit by relying upon expert evidence alone contrary to the provision of Section 47 of Evidence Act ?
Ratio Decidendi: 1. The opinion of the hand writing experts is only a circumstance and it is not mandatory for the Court to accept the opinion. The court is always at its discretion to either accept or reject the report of the hand writing expert depending upon the facts and circumstances of each case. 2. The principle that who seeks equity must do equity and that the parties should approach the Court with clean hands would apply equally to the plaintiff as well as the defendant. 3. A person claiming to be in possession in pursuance of the sale agreement cannot plead adverse possession. 4. The defendant can raise mutually inconsistent pleadings in the written statement it is for the Court to consider whether the case can be properly considered in deciding the issue. But in this case the plea in the written statement is mutually destructive.
Final Decision: The second appeals preferred by the appellant are dismissed with costs by confirming the judgments and decrees passed by the first appellate court in A.S.No.392 of 1987 and A.S.No.404 of 1987 dated 06.12.2001 in reversing the judgment and decree passed by the trial court made in O.S.No.5554 of 1981 dated 17.09.1986 in decreeing the suit. With the observations made in the earlier paragraphs, the CMP No.116 of 2012 is dismissed.
1. S.A.No.1910 of 2004:This appeal is directed against the judgment and decree passed by the 1st appellate court in A.S.No.392 of 1987 dated 06.12.2001 in reversing the judgment and decree passed by the trial court made in O.S.No.5554 of 1981 dated 17.09.1986 in decreeing the suit.
2. S.A.No.1911 of 2004:This appeal is directed against the judgment and decree passed by the 1st appellate court in A.S.No.404 of 1987 dated 06.12.2001 in reversing the judgment and decree passed by the trial court made in O.S.No.5554 of 1981 dated 17.09.1986.
3. C.M.P.No.116 of 2012:This petition has been filed by the 1st respondent seeking permission to amend the written statement filed by the 2nd defendant by adding a prayer to pass a decree and judgment against the plaintiff directing him to vacate and hand over vacant possession of the property to the 2nd defendant as a counter claim.
4. The appellant in both the appeals was the plaintiff; the deceased 1st respondent was the 1st defendant, the 2nd respondent was the 2nd defendant; and the respondents 3 to 6 are the legal representatives of the deceased 1st respondent/1st defendant, ordered to be impleaded during the pendency of this 2nd appeal.
5. The case of the plaintiff before the trial court as stated in the plaint would be as follows:-
In May 1978 the 1st defendant came and represented to the plaintiff that the TNHB, Madras has allotted a plot at No.3609, Anna Nagar, Madras-40 more particularly described in the scheduled annexed hereto. The 1st defendant further represented that he had already paid a portion of the amount to the TNHB and there remained a balance still to be paid to the TNHB, Madras. The 1st defendant uppressed to the plaintiff his inability to pay the balance due to the TNHB and that he wanted to sell the schedule mentioned plot to the plaintiff. When the plaintiff questioned the 1st defendant whether he has got the right to sell the plot allotted to him even before he paid the entire amount due to the TNHB, the 1st defendant represented to the plaintiff that if the plaintiff could give the balance amount which remained to be paid to the TNHB he would pay the same the TNHB and sell the schedule mentioned plot to the plaintiff. The plaintiff believed the representation made by the 1st defendant and paid Rs.2216/- to the 1st defendant which according to the 1st defendant to be paid to the TNHB. Infact the 1st defendant took the above amount only from the plaintiff and paid the same to the TNHB.
The 1st defendant entered into an "Agreement of Sale" on 14.05.1979 with the plaintiff in respect of the plot No.14.05.1979 with the plaintiff in respect of the plot No.3609 Anna Nagar, Madras -40 morefully described in the schedule annexed hereto for a total consideration of Rs.10,000/-. The 1st defendant also represented to the plaintiff that the sum of Rs.2216/- does not represent the sale consideration of Rs.10000/-. In pursuance of the agreement of sale dated 14.05.1979 between the plaintiff and the 1st defendant, the 1st defendant also put the plaintiff in physical and constructive possession of the schedule mentioned plot and as on date the plaintiff is in possession and occupation of the suit plot more fully described in the schedule hereto. As per clause 4 of the Agreement of Sale, the 1st defendant had received the entire sale consideration and infact more amounting in all Rs.12,216/-. The 1st defendant is now evading to execute and register the sale deed in respect of the schedule mentioned plot in favour of the plaintiff. The 1st defendant had received the entire sale consideration amount from the plaintiff. The 1st defendant in law is bound to execute and register the sale deed in favour of the plaintiff regarding the schedule mentioned plot.
6. The plaintiff therefore prays that this Court may be pleased to pass judgment and decree against the defendants:-
a. For the specific performance of the agreement of sale dated 14.05.1979 directing the defendants to e
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