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IN THE HIGH COURT OF MADRAS
V. BHARATHIDASAN, J.
Ramayee – Appellant
Versus
Kasthuri and Ors. – Respondents
S.A. No. 188 of 2018 and C.M.P. Nos. 19869, 4892 of 2018
Decided On : 04-04-2019
Evidence Act - Section 73 - oral and documentary evidence - trial court - execute the sale deed - evidence was produced on the side of the defendants - case of the plaintiff is that the 2nd defendant is the owner of the suit property and he had executed a registered Power of Attorney Deed in favour of the 1st defendant on 22.01.1995 whereby he had given power to the 1st defendant to alienate his property which is more fully described in the plaint. Thereafter, the 1st defendant had entered into an agreement of sale on 30.01.1996 and the sale consideration was fixed at Rs. 15,00,000/-. Initially, the plaintiff had paid a sum of Rs. 10,00,000/- towards advance sale consideration and the balance sale consideration of Rs. 5,00,000/- was agreed to be paid at the time of registration of the sale deed. Thereafter on 05.04.1996, a sum of Rs. 2,00,000/- was paid to the 1st defendant which was duly acknowledged by him and, therefore, only a sum of Rs. 3,00,000/- is due to be paid towards balance of sale consideration. The plaintiff was ready with the balance sale consideration on 22.03.1997 and requested the 1st defendant to execute the sale deed and the 1st defendant, in turn, had informed him that the 2nd defendant had already revoked the power of attorney deed on 07.06.1996 and thereafter, expressed his inability to execute the sale deed – Held, Yet another aspect to be considered in this second appeal is that the disputed signatures found in Ex. A.2, Ex. A. 3 and Ex. A.7 are of the year 1996 and the trial court had compared the same with the signatures of the 1st defendant found in the vakalatnama and the written statement filed by the 1st defendant in the year 2008 which are not of the contemporary period and much after the disputed documents. Based on such comparison the trial court had simply come to the conclusion that the signatures in Ex. A.2, Ex. A.3 and Ex. A.7 are that of the 1st defendant. Even though the opinion of the expert is not a conclusive proof, but, to decide the issue, along with the other surrounding circumstances, the opinion of the hand writing expert would be helpful. But, both the courts below had, without referring to the disputed signatures for experts opinion, on their own come to the conclusion that the signatures were that of the 1st defendant by comparing the same with the signatures in the documents namely, Vakalatnama and the Written Statement which are not related to the contemporary period. Merely because the 1st defendant, who had alleged his signatures were forged, did not enter into the witness and subject himself for examination, it cannot be held that adverse inference can be drawn against him, especially, when the 2nd defendant also disputed the signatures of the 1st defendant and came forward with an application seeking to send for the disputed signatures for comparison to the hand writing expert at the appellate stage. In the above circumstances, this court is of the considered view that the task undertaken by the trial court in comparing the disputed signatures with the admitted signatures of the 1st defendant itself is not valid in the eye of law. Thus, the findings given by the trial court by comparing with the disputed signatures of the 1st defendant in Ex. A.2, Ex. A.3 and Ex. A.7 with the signatures of the 1st defendant in the vakalatnama and the written statement filed in the suit which was the basis for decreeing the suit and the findings of the first appellate court concurring with the findings of the trial court are not sustainable in law and consequent - appeal is allowed
JUDGMENT :
V. Bharathidasan, J.
1. The 2nd defendant, who suffered a decree in O.S. No. 159 of 1999 on the file of the learned Principal Subordinate Judge, Puducherry, for specific performance of contract is the appellant. The 1st respondent is the plaintiff and the 2nd respondent is the 1st defendant in the suit. The said suit was filed for a decree against the defendants 1 and 2 for specific performance of contract of agreement of sale dated 30.01.1996 in respect of suit property after receiving the balance sale consideration of Rs. 3,00,000/-; directing the defendants to put the plaintiff into possession of the suit property by delivery of possession and for a consequential injunction restraining the 2nd defendant, her agents, servants, henchmen from causing waste and damage to suit property and from alienating the same until the disposal of the suit; or in the alternative to grant a decree against the defendants directing them to return the advance amount Rs. 12,00,000/- with interest amounting to Rs. 14,66,800/- with subsequent interest @ 12% p.a. from the date of plaint till date of realization. The learned Principal Subordinate Judge, by judgment and decree dated 10.04.2013 decreed the suit with costs. Aggrieved over the same, the 2nd defendant filed an appeal suit in A.S. No. 9 of 2015 and the learned Principal District Judge, by judgment and decree dated 29.03.2017, has dismissed the appeal suit. Feeling aggrieved by the same, the 2nd defendant is before this court with the present second appeal.
2. For the sake of convenience, the parties in this proceedings will hereinafter be referred to as per their array before the trial court.
3. The case of the plaintiff is that the 2nd defendant is the owner of the suit property and he had executed a registered Power of Attorney Deed in favour of the 1st defendant on 22.01.1995 whereby he had given power to the 1st defendant to alienate his property which is more fully described in the plaint. Thereafter, the 1st defendant had entered into an agreement of sale on 30.01.1996 and the sale consideration was fixed at Rs. 15,00,000/-. Initially, the plaintiff had paid a sum of Rs. 10,00,000/- towards advance sale consideration and the balance sale consideration of Rs. 5,00,000/- was agreed to be paid at the time of registration of the sale deed. Thereafter on 05.04.1996, a sum of Rs. 2,00,000/- was paid to the 1st defendant which was duly acknowledged by him and, therefore, only a sum of Rs. 3,00,000/- is due to be paid towards balance of sale consideration. The plaintiff was ready with the balance sale consideration on 22.03.1997 and requested the 1st defendant to execute the sale deed and the 1st defendant, in turn, had informed him that the 2nd defendant had already revoked the power of attorney deed on 07.06.1996 and thereafter, expressed his inability to execute the sale deed. Then, the plaintiff had approached the 2nd defendant requesting her to execute the sale deed. On 20.03.1997, the plaintiff again called upon the 2nd defendant to execute the sale deed. But, the 2nd defendant had only sought for time to execute the sale deed. Further, according to the plaintiff, since the 2nd defendant failed to come forward to execute the sale deed on 22.03.1997, by way of notice, he called upon the 2nd defendant to come over to the registrar office at Puducherry on 28.04.1997 for execution and registration of sale deed after receiving the balance sale consideration. But, the notice sent by him got returned as the 2nd defendant had refused to received the same. The 1st defendant issued a reply expressing his inability to execute the sale deed as the power of attorney deed had already been revoked by the 2nd defendant. Since the defendants failed to executed the sale deed, the plaintiff has filed the suit for specific performance of contract and for other reliefs.
4. The 1st defendant, who was the power of attorney agent of the 2nd defendant filed his written statement and denied the execution
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