Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2023 Supreme(Mad) 1859

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
ABDUL QUDDHOSE, J.
Rajeshwaran (Died) & Others – Appellants
Versus
Muthammal – Respondent
S.A.(MD) No. 622 of 2020 & C.M.P(MD) No. 6606 of 2020
Decided On : 12-06-2023

Advocates appeared:
For the Appellants:H. Arumugam, Advocate. For the Respondent:P. Vinoth for S. Prasanth, Advocates.

The importance of obtaining expert opinion to prove the genuineness of a document and the discretionary nature of specific performance.

Headnote:
Specific Performance - Agreement of Sale - Indian Evidence Act, Section 45 - The court discussed the alleged agreement of sale dated 14.05.2010 and the defendant's claim that it was a forged document. The plaintiff failed to obtain an expert opinion to prove the genuineness of the agreement, leading the court to conclude that it was indeed a forged document. The court also emphasized that specific performance is a discretionary relief and found that the lower courts had properly exercised their discretion in refusing to grant the relief in favor of the plaintiff. The court also considered the fact that a subsequent purchaser had filed a suit for declaration and held that the plaintiff did not have any right to seek specific performance of the alleged agreement of sale.
Fact of the Case:

The plaintiff filed a suit for specific performance of an agreement of sale, claiming that the defendant had agreed to sell the suit schedule property to him. The defendant disputed the agreement, alleging it was a forged document.
Finding of the Court:

The court found that the alleged agreement of sale was a forged document and that the plaintiff had failed to prove its genuineness. It also held that specific performance is a discretionary relief and that the lower courts had properly exercised their discretion in refusing to grant the relief. The court also considered the fact that a subsequent purchaser had filed a suit for declaration and held that the plaintiff did not have any right to seek specific performance of the alleged agreement of sale.
Issues: The issues revolved around the genuineness of the alleged agreement of sale, the discretionary nature of specific performance, and the plaintiff's right to seek specific performance in light of the subsequent purchaser's suit for declaration.
Ratio Decidendi: The court emphasized the importance of obtaining expert opinion to prove the genuineness of a document and highlighted that specific performance is a discretionary relief. It also considered the impact of the subsequent purchaser's suit for declaration on the plaintiff's right to seek specific performance.
Final Decision: The Second Appeal was dismissed, and no costs were awarded. The court found no substantial question of law involved and concluded that there was no merit in the appeal.

JUDGMENT

(Prayer: Second Appeal is filed under Section 100 of Code of Civil Procedure, against the judgment and decree dated 24.09.2019 passed in A.S.No.55 of 2018 on the file of the Additional District Sessions Court (Fast Track Court), Tenkasi, confirming the judgment and decree dated 22.02.2018 passed in O.S. No.190 of 2012 on the file of the Additional Sub-Court, Tenkasi.)

1. This Second Appeal has been filed challenging the concurrent findings of the courts below. The plaintiff in the suit in O.S.No.190 of 2012 on the file of the Additional Subordinate Court, Tenkasi, is the appellant herein. After filing of this Second Appeal, the appellant/plaintiff died. The legal heirs of the deceased appellant have been brought on record.

2.In the forthcoming paragraphs, the parties are described as per their litigative status in the suit.

3.The plaintiff had filed the said suit for specific performance of an agreement of sale. The respondent is the defendant in the suit, who was the owner of the suit schedule property in respect of which, the appellant claims that there is an agreement of sale, in which, the respondent had agreed to sell the suit schedule property to him.

4.However, as seen from the written statement filed by the respondent in the suit, he has pleaded that the alleged agreement of sale is a forged document.

5.The trial court, namely, the Additional Subordinate Court, Tenkasi, based on the pleadings in O.S.No.190 of 2012, framed the issues as to whether the plaintiff is entitled for the relief of specific performance as prayed for in the plaint.

6.i)Before the trial court, the plaintiff filed three documents, which are marked as Ex.A.1 to Ex.A.3, which included the alleged agreement of sale dated 14.05.2010 allegedly entered into between the plaintiff and the defendant, which was marked as Ex.A.1; Ex.A.2 is the notice sent by the plaintiff to the defendant calling upon the defendant to execute a sale deed in his favour; Ex.A.3 is the returned cover dated 04.08.2012 by which notice dated 30.07.2012 sent by the plaintiff to the defendant has been returned unserved. On the side of the plaintiff, two witnesses were examined namely, the plaintiff himself as P.W.1 and another person by name Babu Nagoormeeran as P.W.2.

6.ii)On the side of the defendant, two documents were filed, which were marked as Ex.B.1 and Ex.B.2. Ex.B.1 is the certified copy of the settlement deed, which was executed by the defendant in favour of his son Kailasam dated 10.11.2010; Ex.B.2 is the sale deed dated 03.09.2012 executed by Kailasam in favour of Syed Sulaiman for the suit schedule property.

7.As seen from the pleadings, oral and documentary evidence, the defendant has categorically pleaded that the alleged sale agreement dated 14.05.2010 (Ex.A.1) is a forged document. However, the plaintiff claimed that the defendant has received a part sale consideration of Rs.4,00,000/- (Rupees Four Lakhs only) by entering into the agreement of sale (Ex.A.1) but failed to execute a sale deed by receiving the balance sale consideration.

8.The defendant has pleaded in his written statement that he has not received any sale consideration from the plaintiff and he never entered into the sale agreement dated 14.05.2010 (Ex.A.1) with the plaintiff. The defendant is an illiterate person and he is alleged to have affixed her thumb impression in the sale agreement dated 14.05.2010(Ex.A.1).

9.When the defendant has disputed the execution of the sale agreement dated 14.05.2010 (Ex.A.1) in favour of the plaintiff and has categorically claimed that the said agreement is a forged document, the plaintiff ought to have sent the document for expert opinion with regard to the thumb impression of the defendant found therein. Admittedly, the plaintiff has not sent the document for an expert opinion under the provisions of Section 45 of the Indian Evidence Act though the said application filed by the plaintiff was allowed by the trial court.

10.The learned counsel for the

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