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R. Ramaswamy v. Seethammal

Madras High Court

Dec 19, 1989

Judgment

Subsequent
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Factual and Procedural Background

This second appeal arises from O.S. No. 157 of 1977 (District Munsifs Court, Sattur). The plaintiff-appellant sued for specific performance of a sale agreement (Ex.A-1), dated 15-12-1974, under which the defendant was alleged to have agreed to sell the suit property to the plaintiff for Rs. 700. Of this sum Rs. 400 had been paid as advance.

At trial the suit was decreed. On appeal the defendant challenged the decree; the 1st appellate court reversed the trial court's judgment and dismissed the suit. The plaintiff filed the present second appeal against that appellate court judgment.

The defendant's pleaded defence was that she did not sign Ex.A-1 and that there was no agreement between the parties. Evidence at trial included the plaintiff (P.W.1), two attestors of the document (P.Ws.2 and 4), and the scribe of the document (P.W.3, the plaintiff's father). The defendant gave evidence as D.W.1 and denied signing. A suit notice (Ex.A-2 dated 25-7-1977) had only a belated reply (Ex.B-1 dated 19-9-1977).

Legal Issues Presented

Whether the lower appellate court was correct in holding that the trial court, "not being an expert," committed an error by comparing the defendant’s admitted signature in the written statement and vakalat with the signature in Ex.A-1, in view of the provisions of Section 73 of the Indian Evidence Act.
Whether other grounds relied on by the lower appellate court — namely alleged prior enmity between parties, the contention that the defendant had signed blank papers later filled in, and the claim that Ex.A-1 was improperly stamped or signed only by the defendant — were sufficient to overturn the trial court decree.

Arguments of the Parties

Appellant's Arguments

The agreement Ex.A-1 was executed on 15-12-1974 for Rs.700 and Rs.400 was paid as advance.
The signature in Ex.A-1 was genuine; the trial court compared the disputed signature with admitted signatures in the vakalat and written statement and found them to be the defendant’s.
Attesting witnesses (P.Ws.2 and 4) deposed that the signature on Ex.A-1 was the defendant’s; the scribe (P.W.3) also gave evidence.
Objections to stamp insufficiency and admissibility cannot be raised for the first time on second appeal because the document had already been admitted at trial (relying on Section 36 of the Stamp Act).
Even if Ex.A-1 were signed only by the defendant and not by the plaintiff, Section 20(4) of the Specific Relief Act permits specific performance to be granted and mutuality is no longer a ground to refuse enforcement.

Respondent's (Defendant's) Arguments

The defendant denied signing Ex.A-1 and denied there being any agreement to sell the properties.
In evidence (as D.W.1) the defendant denied her signature on the vakalat and written statement.
Counsel for the respondent argued that Ex.A-1 was signed only by the defendant and not by the plaintiff, and that only a revenue stamp was affixed, hence the plaintiff could not specifically enforce Ex.A-1.
At the appellate stage the court relied on additional factual inferences: alleged prior enmity between the plaintiff's father and the defendant and an assertion that the defendant had signed blank papers later filled in; these inferences were relied upon to discredit the execution of Ex.A-1.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
State of Gujarat v. Vinaya Chandra (1967 M.L.J. (Crl) 442; (1967) 1 S.C.J. 821; A.I.R. 1967 S.C. 778)	It is not essential to examine a handwriting expert to prove or disprove a writing; the court is competent to compare disputed writing with admitted writing under Section 73 of the Evidence Act; the section does not expressly require comparison by an expert.	The court relied on this authority to hold that the trial court was competent to compare the disputed signature in Ex.A-1 with admitted signatures and that such comparison by the court was permissible without calling an expert.
Lalji v. Ramji	Addresses the doctrine of mutuality and confirms that after the Specific Relief Act, 1963, mutuality is not a requirement preventing specific enforcement where one party has not signed.	The court applied the principle to hold that the fact that Ex.A-1 was signed only by the defendant did not preclude specific performance, relying on Section 20(4) of the Specific Relief Act.

Court's Reasoning and Analysis

The court proceeded by addressing each contention raised by the lower appellate court and the parties, applying statutory provisions and precedent cited in the record.

On the disputed signature the court noted that Section 73 of the Indian Evidence Act does not prescribe by whom a comparison of writing must be made. The court relied on State of Gujarat v. Vinaya Chandra and on established commentary (Woodroffe & Amir Ali) to explain that a comparison may be made by:

witnesses acquainted with the handwriting,
expert witnesses skilled in handwriting, or
without witnesses, by the court itself (or a jury where applicable).

Thus the trial court was competent to compare the disputed signature in Ex.A-1 with signatures admitted to be that of the defendant in the vakalat and written statement. The trial court had done so and, in addition, attesting witnesses (P.Ws.2 and 4) deposed that the signature was the defendant’s. The defendant’s denial at trial (D.W.1) of signatures in the vakalat and written statement was noted but the court observed that she was an illiterate lady and that the appellate court found she may have denied the signatures out of fear. On these factual and evidentiary points the court upheld the trial court's finding of genuineness.

The appellate court had also relied on two other factual inferences: alleged prior enmity between the plaintiff's father and the defendant, and that the defendant had signed blank papers later filled in (based on perceived differences in script size). The court in the present opinion held that there was no pleading or evidence to support those specific inferences before the trial court; characterizing the appellate court's reliance upon them as "special pleading," the court rejected those grounds as unsupported by the record.

On the stamping and enforceability point the court observed that the defendant could not raise the question of proper stamp for the first time on this appeal because the document had been admitted at trial. The court relied on Section 36 of the Stamp Act (as referenced in the opinion) to conclude that the issue was not open at this stage.

Finally, addressing the contention that Ex.A-1 was signed only by the defendant and not by the plaintiff, the court applied Section 20(4) of the Specific Relief Act (quoted in the opinion) and the decision in Lalji v. Ramji. The court concluded that the absence of the plaintiff's signature did not preclude specific performance and that mutuality, as a ground to deny enforcement, had been abolished by the Specific Relief Act, 1963.

Holding and Implications

The second appeal is allowed; the judgment and decree of the lower appellate court are set aside, and the judgment and decree of the trial court are confirmed.

Consequences for the parties: the plaintiff's suit for specific performance as decreed by the trial court stands confirmed; the defendant's contentions about falsity of signature, insufficiency of stamp, and other factual inferences (enmity, signing blank papers) were rejected by the court on the record before it. No costs were awarded.

The opinion does not state that it establishes a broader new precedent; it applies existing statutory provisions (Section 73 of the Evidence Act, Section 36 of the Stamp Act, and Section 20(4) of the Specific Relief Act) and prior case law to the facts of this dispute to reach the decision described above.

Show all summary ...

1. This Second appeal arises out of O.S.No. 157 of 1977 on the file of the District Munsifs Court, Sattur, filed by the plaintiff-appellant for specific performance of the sale agreement Ex.A-1, dated 15-12-1974 for selling the suit property belonging to the defendant, to the plaintiff for Rs. 700. Out of the above said sum of Rs. 700, Rs. 400 had already been paid as advance. The trial court decreed the suit, but on appeal by the defendant, the 1st appellate court reversed the judgment and decree of the trial court and dismissed the suit; Hence, the second appeal by the plaintiff.

2. The defence to the suit is that the defendant did not sign Ex.A-1 and there was no agreement between the parties for selling the properties. The plaintiff, apart from examining himself as P.W.1, examined the two attestors P.Ws.2 and 4 and the scribe of the document P.W.3, who is no doubt the father of the plaintiff. The defendant examined herself as D.W.1. There was no other witness on her side. TO the suit notice Ex.A-2, dated 25-7-1977, there was only a belated reply Ex.B-1, dated 19-9-1977.

2. Since the signature of the defendant in Ex.A-1 is disputed the trial court compared it with the signature of the defendant in her vakalat and the written statement and came to the conclusion that it is hers only and, in the light of other evidence also, decreed the suit. But, the lower appellate court reversed the judgment and decree of the trial court. One of the grounds on which the reversal was made is that the trial court cannot by itself compare the signature in Ex.A-1 with that in the written statement and vakalat of the defendant and come to the conclusion it has reached. In its opinion, the trial court is not an expert to compare the signatures. It is on this point the substantial question of law was framed as follows:

Whether the lower appellate court is right in holding that the trial court not being an expert, committed an error in comparing the defendant's admitted signature in the written statement with that of the signature in Ex. A-1, in view of the specific provisions contained in Section 73 of the Indian Evidence Act ?

3. But on the point, there can be no two opinion. It is not essential that the handwriting expert must be examined to prove or disapprove a writing. The Court is competent to compare the disputed writing with the writing admitted or proved to be that of the person concerned. Of course, the Court may get the writing compared by an expert and examine him if it thinks fit to do so. But it is not bound to do so. (Vide State of Gujarat v. Vinaya Chandra 1967 M.L.J. (Crl) 442 : (1967) 1 S.C.J. 821 : 1967 Crl. LJ.668 A.I.R. 1967 S.C.778 Section 73 of the Evidence Act does not specifically state by whom the comparison should be made. However, the second paragraph of the Section, dealing with the related subject, expressly provides by way of contrast that in that particular connection the court may make the comparison. The comparison can be made either by witness acquainted with the hand-writing or by expert witnesses skilled in deciphering hand-writing, or without the intervention of any witnesses at all, by jury themselves, or in the event of there being no jury, by the court, (Vide Woodroffe & Amir Ali's Law of Evidence, 14th Edition Volume II, Page 1678). In the present case, apart from the comparison by the Court, P.Ws.2 and 4, who attested the signature of the defendant, have also deposed that it is only her signature. No doubt, the defendant, when she gave evidence as D.W.1, denied her own signature signed in the vakalat as well as in the written statement. She is only an illiterate lady and the appellate court also finds that out of fear she has denied so.

4. The other ground, on which the appellate Court allowed the appeal is that there was some enmity between the plaintiff's father and the defendant prior to the execution of Ex.A-1 and that hence there was no "sufficient evidence beyond any doubt" to prove the execution of Ex.A-1 by the defendant But, there is absolutely no plea regarding the enmity or the motive mentioned by the lower Appellate Court. This is nothing but a special pleading by the lower appellate court.

5. One other ground, on which the lower appellate court proceeded is that the defendant signed in a blank papers, which was later on written up by the plaintiff as an agreement since the earlier lines in the said agreement were in bigger script and the latter lines were in smaller script. Here also, there is no such plea by the defendant.

6. Lastly, the learned Counsel for the respondent argued that Ex.A-1 was only signed by the defendant and not by the plaintiff and only a revenue stamp was affixed on Ex.A-1 and that hence the plaintiff cannot specifically enforce Ex.A-1. This contention also has no force. Regarding the question of proper stamp to the document, it cannot be raised for the first time now. The document having been admitted already in the trial court itself, the defendant cannot object to its admissability for the first time now, in view of Section 36 of the Stamp Act.

7. Nextly, no doubt Ex.A-1 is signed only by the defendant and not by the plaintiff. The terms given by the defendant to sell the property can be specifically enforced in view of Section 20(4) of the Specific Relief Act which runs as follows:

The court shall not refuse to any party specific performance of a contract merely on the ground that the contract is not enforceable at the instance of the other party.

Further in Lalji v. Ramji where one of the two parties alone signed the sale agreement and the question was whether there was want of mutuality and as such the agreement was not enforceable. The court held as follows:

Prior to the enactment of the Specific Relief Act, 1963, there was scope to apply the doctrine of English law that a contract to be specifically enforceable must be mutually binding....

This principle of mutuality has been abolished and now not recognised by the Specific Relief Act, 1963.

8. Therefore, the judgment and decree of the lower appellate court are set aside, the judgment and decree of the trial court are confirmed and this second appeal is allowed. No costs.