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NANAK SINGH versus AJAB SINGH & OTHERS

High Court of Judicature at Allahabad

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Nanak Singh v. Ajab Singh & Others - SECOND APPEAL No. - 615 of 1996 [2007] RD-AH 14942 (3 September 2007)

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HIGH COURT OF JUDICATURE AT ALLAHABAD

Court No.27

Second Appeal No. 615 of 1996

Nanak Singh

Vs.

Ajab Singh & Ors.

~~~~~~

Hon. Dilip Gupta, J.

The plaintiff has filed this Second Appeal for setting aside the judgment and decree passed by the learned Additional Civil Judge, Agra by which the Civil Appeal that had been filed by the defendants was allowed.

The Original Suit had been filed for specific performance of the contract by which the deceased defendant Bihari had agreed to sell the property in dispute to the plaintiff for a sum of Rs. 9000/- out of which Rs.4500/- had been paid in advance and the remaining amount was agreed to be paid at the time of execution of the sale deed. It was stated that the said agreement was duly registered on 30th May, 1979 and though the plaintiff was throughout ready and willing to perform his part of the contract but the defendant, for one reason or the other, avoided executing the sale deed as a result of which the notice dated 6th May, 1981 was sent by the plaintiff to the defendant to execute the sale deed on 29th May, 1981 after receiving the balance amount of sale consideration. The defendant, however, did not come to the office of the Sub-Registrar for executing the sale deed though the plaintiff kept waiting for him with the balance amount in the office. The suit was, therefore, filed.

A written statement was filed by the defendant that the agreement to sell had not been executed on 30th May, 1979 and nor had the defendant received Rs.4500/- as advance money towards the sale consideration. It was also stated that in fact the defendant Bihari was in need of money and so he had taken a loan from the plaintiff, which was to be repaid within two years. It was also stated that a document had also been executed in respect of the said loan.

The Trial Court framed the following issues :-

"1. Whether on 30.5.79 the defendant contracted to sell the disputed land for Rs.9000/- to the plaintiff and executed agreement to sell in favour of plaintiff?

2. Whether plaintiff has been ready and willing to perform his part of contract dated 30.5.79? If so, its effect?

3. Whether plaintiff has not paid Rs.4500/- to the defendant as an advance towards contract dated 30.5.79?

4. Whether transaction made on 30.5.79 was borrowing money by the defendant from plaintiff as alleged in para 11 of W.S.?

5. To what relief, if any, is plaintiff entitled?"

The plaintiff examined PW-1 Sri Paras Singh, PW-2 Sri Nanak Singh, PW-3 Sri Purushottam Kashyap (handwriting expert), PW-4 Sri Kaptan Singh and PW-5 Sri Raj Singh Verma (handwriting and finger print expert). Certain documents were also filed by the plaintiff including 16-Ka (Ext.-1) which was the agreement to sell, 30-Ga (Ext.-10) which was the expert report of Purushottam Kashyap and 140-Ga (Ext.-11) which was the expert report of Raj Singh Verma. On behalf of the defendants DW-1 Doonger Singh, DW-2 Tej Singh, DW-3 Sri Ajab Singh, DW-4 Sri Sajjan Singh, DW-5 Sri Ravindra Pal Singh and DW-6 Sri Deepak Kashyap (handwriting expert), were examined. The defendants also filed the report 133-Ga (Ext.K-7) submitted by the handwriting expert Deepak Kashyap and 59-Ga (Ext.-Ka-1) which was the agreement said to have been executed by the plaintiff Nanak Singh in favour of Bihari on 30th May, 1979. During the pendency of the suit, the defendant Bihari died on 26th November, 1982 and his heirs were substantiated.

In respect of Issue No.1, the Trial Court recorded a finding that the document Ext.-1, which was the registered agreement to sell had been duly executed by the defendant in favour of the plaintiff and was registered on 30th May, 1979. The defence taken up that Bihari had not put his thumb impression on the document and nor had he executed the agreement, was not accepted in view of the report submitted by the handwriting expert Sri Purushottam Kashyap (Ext.-10) which was duly proved by Purushottam Kashyap (DW-3). The report clearly mentioned that the document Ext.-1 contained the thumb impression of Bihari. The Trial Court also considered the statements made by DW-3 and DW-5 that on 30th May, 1979, two documents had been executed namely 16-Ka (Ext.-1) and 59-Ga (Ext.-Ka-1) and concluded that Ext.-1 was executed by the defendant to sell the property to the plaintiff.

The second issue that had been framed by the Trial Court was that whether the plaintiff was ready and willing to perform his part of the contract. This issue was decided in favour of the plaintiff. The third issue namely as to whether the plaintiff had received Rs.4500/- as advance money towards the sale consideration was also decided in favour of the plaintiff. The fourth issue was whether the transaction made on 30th May, 1979 was in respect of the loan amount taken by the defendant from the plaintiff. For the said purpose reliance was placed by the defendant Bihari upon the document 59-Ga (Ext.-Ka-1) said to have been executed by the plaintiff in favour of the defendant by which it was agreed that Bihari would return the loan amount within a period of two years upon which the plaintiff would return the agreement 16-Ka (Ext.-1). The Trial Court found that the witnesses produced on behalf of the defendants stated that Bihari had taken the loan in respect of which the said document had been executed but these witnesses also admitted that the loan had been given by Gyan Singh to Bihari and they did not state that Nanak Singh had given the loan to Bihari. The Court, therefore, concluded that the said document was in respect of some other transaction. The other defence taken up by the defendant that it was highly improbable that the agreement to sell was executed since the time period indicated for executing the sale deed was two years during which period the property prices would have risen many times was also rejected. On behalf of the plaintiff it was contended that the document 59-Ga had not been executed and he had not signed on the document since he was illiterate and used to always put his thumb impression which he had also put on the agreement Ext.-1. The Trail Court noticed that 59-Ga contained some signature which had been subsequently erased. It noticed that in this connection the defendant had also examined the handwriting expert Sri Deepak Kashyap (DW-6) who had submitted the report 133-Ga. He, however, in his report merely stated that the signature had been erased but he did not mention the name of the person who had signed. The plaintiff on the other hand, had filed the expert report of Sri Raj Singh Verma 140-Ga (Ext.-11) and Sri Raj Singh Verma was also examined as PW-5. In his report he clearly mentioned that the plaintiff or the witnesses had not signed on the document 59-Ga. The Trial Court, therefore, concluded that the defendant could not prove that the plaintiff had signed on the document 59-Ga. The Trial Court, therefore, disbelieved the case set up by the defendant that he had not agreed to sell the property but had only executed the document in respect of the loan amount. The suit was accordingly decreed by the Trial Court.

The defendants filed the Civil Appeal which was allowed. Issue Nos. 1 and 4 were taken up together by the Lower Appellate Court. The Lower Appellate Court examined as to whether the registered document Ext.-1 had been executed by the defendant in favour of the plaintiff on 30th May, 1979 for the purpose of securing the loan for which another document 59-Ga had also been executed by the plaintiff in favour of the defendant on the same date i.e. 30th May, 1979. The Lower Appellate Court placed great emphasis on the document 59-Ga which the defendant claimed had been executed by the plaintiff in favour of the defendant on the same date i.e. 30th May, 1979 and on which the plaintiff had put his signatures which were subsequently erased. The Lower Appellate Court noticed that PW-2 Nanak Singh in his examination stated that he was an illiterate person and he had put his thumb impression on the statement made by him before the Court as well as on the agreement to sell, while it was the case of the defendant that the document 59-Ga contained his signatures. The Lower Appellate Court also noticed that admittedly the experts did not have the admitted signatures of the plaintiff for comparison with the signatures said to have been made and then erased on the document 59-Ga and, therefore, it had to be found out whether he was actually illiterate or not. In this context, the Lower Appellate Court placed great reliance upon the statement of the plaintiff Nanak Singh (PW-2) wherein he had verified the signatures of certain persons made on certain documents and, therefore, concluded that the plaintiff Nanak Singh was a literate person and for some specific reason had stated that he was an illiterate person and had also put his thumb impression on all the documents except 59-Ga. The Lower Appellate Court then examined as to whether the plaintiff had signed the document 59-Ga and for this purpose examined the report submitted by the handwriting expert Deepak Kashyap who had also appeared as DW-6. The said document is said to have been executed by the plaintiff in favour of the defendant in the presence of the witness. According to the defendant, the plaintiff and the witness had put their signatures on the said document. The report of the expert mentions that the signature of the person who had executed the document was subsequently erased and in respect of the signature of the witness it was mentioned that the disputed signature S-2 and the admitted signatures A-1 and A-2 were of the same person. The Lower Appellate Court concluded from the report that on 30th May, 1979, two documents Ext.-1 and 59-Ga had been executed and the plaintiff had given Rs.4500/- to the defendant on loan for a period of two years and the registered document was to be returned to the defendant after the defendant paid back the loan.

The Lower Appellate Court then examined Issue No.2 which was whether the plaintiff was ready and willing to perform his part of the contract. In this context the Lower Appellate Court observed that even if the case of the plaintiff that the agreement to sell had been executed on 30th May, 1979 was taken to be correct, then too the plaintiff was not ready and willing to perform his part of the contract. The Lower Appellate Court, therefore, allowed the appeal.

I have heared Sri Rajesh Kumar Yadav, learned counsel for the appellant. No one has appeared for the respondents even in the revised list.

At the time of admission of the Second Appeal, following substantial questions of law were framed :-

"1. Whether the Lower Appellate Court was justified in substituting its own finding without recording reasons for disagreement with the finding recorded by the Trial Court?

2. Whether the registered agreement for sale could have been nullified by taking into consideration an unregistered paper no.59-Ga (as per the lower Court record) dated 30.5.79?

3. Whether the said paper was legally proved and was binding against the appellant?

4. Whether the judgment of the first Appellate Court is sustainable as it does not specify in the order anything about fate of the suit?"

Learned counsel for the appellant submitted that the judgment of the Lower Appellate Court deserves to be set aside as it is based purely on conjectures and surmises. Elaborating his submissions, he submitted that the agreement to sell that had been executed between the plaintiff Nanak Singh and the defendant Bihari was duly registered and was also duly proved but the Lower Appellate Court on the basis of the document 59-Ga said to have been executed by the plaintiff in favour of the defendant has wrongly concluded that the defendant had never agreed to sell the disputed property to the plaintiff and had only taken the loan amount which was to be repaid within a period of two years; that the finding recorded by the Lower Appellate Court that the defendant and the witness had signed on the document 59-Ga is perverse and that the finding that the plaintiff was not ready and willing to perform his part of the contract is also liable to be set aside.

A perusal for the judgment of the Lower Appellate Court shows that it placed great emphasis on the document 59-Ga said to have been executed by the plaintiff in favour of the defendant as it is on the basis of this document that the Lower Appellate Court has drawn a conclusion that the agreement that had been duly registered on 30th May, 1979 (Ext.-1) was not an agreement to sell the property. This document 59-Ga said to be executed on the same date i.e. 30th May, 1979 was not registered and is said to contain the signatures of the plaintiff Nanak Singh and the witness. Nanak Singh completely denied that he had executed any such document and he also denied his signatures on the said document. In fact, he came out with a categorical case that he was an illiterate person who always put his thumb impression. The defendant had not produced before the Court any document containing the signatures of Nanak Singh. The Lower Appellate Court even after observing that the handwriting expert Deepak Kashyap produced by the defendant did not have the admitted signatures of Nanak Singh still placed reliance upon the report 133-Ga submitted by Deepak Kashyap DW-6 and concluded that Nanak Singh had signed the document. In order to come to the conclusion that the plaintiff had signed the document 59-Ga, it was absolutely necessary that the admitted signature of the person is available but in the present case admittedly these signatures were not available. There was, therefore, no material before the Court to come to the conclusion that the plaintiff had signed on the document 59-Ga. It needs to be mentioned that the alleged signatures of Nanak Singh had been completely erased and the report of Deepak Kashyap does not even mention that the signatures that had been erased were that of Nanak Singh. The report of the handwriting expert Raj Singh Verma (Ext.11), on the other hand, clearly mentions that the alleged signatures were not of the plaintiff Nanak Singh. Even in respect of the signatures of the witness there were two conflicting reports before the Court. The report of Raj Singh Verma (Ext.-11) clearly mentions that the signatures do not match while the report of Deepak Kashyap (Ext.-7) mentions that they match. The Lower Appellate Court has only considered the report of Deepak Kashyap and has completely ignored the report of Raj Singh Verma. In such circumstances, it cannot be said with certainty that the signatures of the witness matched.

The Lower Appellate Court then proceeded to examine whether the plaintiff was a literate person. There was no documentary evidence available on the record from which the Lower Appellate Court could come to the conclusion that the plaintiff was a literate person. It is only because the plaintiff verified some of the signatures made on certain documents that the Lower Appellate Court concluded that he was a literate person. Mere verification of the signature of the person executing the document cannot necessarily lead to the conclusion that the person verifying the signature is a literate person. Reference may be made to certain decisions which deal with this aspect but before doing that it would be appropriate to examine the provisions of Sections 47 and 67 of the Evidence Act and they are as follows:-

47. Opinion as to handwriting, when relevant.--When the Court has to form an opinion as to the person by whom any document was written or signed, the opinion of any person acquainted with the handwriting of the person by whom it is supposed to be written or signed that it was or was not written or signed by that person, is a relevant fact.

67. Proof of signature and handwriting of person alleged to have signed or written document produced.--If a document is alleged to be signed or to have been written wholly or in part by any person, the signature or the handwriting of so much of the document as is alleged to be in that person's handwriting must be proved to be in his handwriting.

Section 47 of the Evidence Act, therefore, makes the opinion of non-expert admissible. Under Section 67 the signature and handwriting of the person has to be proved but the said Section does not lay down any particular kind of proof for proving that a particular handwriting or signature is in the hand of any particular person. The person has to depose that the execution had been made in his presence and he had seen the executant putting his signature in his presence.

In Bheek Chand & Ors. Vs. Parbhuji, AIR 1963 Rajasthan 84, the Rajasthan High Court observed:-

"Another serious error committed by the learned District Judge was that he held that a person not knowing English or Sindhi himself could not prove that the writings in English or Sindhi were made by Parbhuji. Section 67 of the Evidence Act does not lay down any particular kind of proof for proving that a particular writing or signature is in the hand of a particular person. The fact that a particular person has written a particular writing can be proved by the direct evidence of those persons who have seen him making the writing on the particular document irrespective of whether or not they can read what was written. It has to be remembered that a document can be executed not only by affixing one's signatures, but also by making a mark on it. When a document bearing a thumb-mark of a person is proved it is not necessary that the person proving the affixation of the thumb-mark should be able to identify the thumb-mark. All that is required is that he should be able to identify the document on which he states that the thumb-mark was affixed. In the present case the documents on which Parbhuji was alleged to have made English and Sindhi writings were written in Hindi which all the witnesses, who came forward to prove the writings of Parbhuji, knew. They were competent witnesses to prove the writings of Parbhuji on these documents in English and Sindhi in spite of the fact that they did not know English and Sindhi. ...............

It is not correct to say that a person can only prove the handwriting on a document when he is himself acquainted with the language in which the handwriting or signature has been made. ................" (emphasis supplied)

In Gajraj & Ors. Vs. Board of Revenue, U.P., Allahabad & Ors., 1966 ALJ 149 this Court placed reliance upon the aforesaid decision of the Rajasthan High Court and observed :-

"............... It has been contended on behalf of the petitioners that the view of the opposite party No.2 that Mulla being an illiterate person could not prove the lease in their favour is erroneous in law and he has relied on Ram Chandra v. Jaith Mal, AIR 1934 Alld. 990 and Bheek Chand v. Parbhuji, AIR 1963 Raj. 84. The submission of the learned counsel is right and is well supported by the authorities relied on by him. In order to prove the writing of a person it has been held that it is not necessary that the person must know the language in which the document has been written. If he has deposed that execution had been made in his presence and he had seen the executant putting his signature in his presence it has been held that the document stands proved. On the same reason if a person is an illiterate and has seen some body putting his signature on a document in his presence in my opinion he has proved that document. The learned counsel for the opposite parties has not seriously contested this proposition and has not cited any authority to the contrary; in my opinion the opposite party No.2 has committed a patent mistake on this point." (emphasis supplied)

In Bhanuwar Lal Tatar Vs. Ahmed Khan & Anr., AIR 1977 Gauhati 27, the Gauhati High Court observed :-

"Section 67 of the Indian Evidence Act provides that if a document is alleged to be signed or to have been written wholly or in part by any person, the signature or handwriting of so much of the document as is alleged to be in that person's handwriting must be proved to be in his handwriting. Section 47 of the Evidence Act lays down the mode of proving such signature or handwriting. It provides that when the Court has to form an opinion as to the person by whom any document was written or signed, the opinion of any person acquainted with the handwriting of the person by whom it is supposed to be written or signed, that it was or was not written or signed by that person, is a relevant fact. The explanation to this section clarifies as to who can be said to be acquainted with the handwriting or signature of another person. According to this explanation a person may be acquainted with the handwriting of a person in three ways: (i) when he has seen a person writing; (ii) when he has received documents purporting to be written by the person in answer to documents written by himself; (iii) when in the ordinary course of business documents purporting to be written by that person have been habitually submitted to him.

It is seen from the provisions of Section 47 that if a person has seen another person signing or writing a document he can be said to be acquainted with his handwriting and so he is competent to prove that it is in the handwriting and/or signature of that person. There is nothing in the section to indicate that to be acquainted with the handwriting or signature of a person, the person in whose presence the signature or writing was made must be able to read such signature or writing." (emphasis supplied)

It is clear from the aforesaid decisions that a person need not be literate for verifying the signatures on documents which were made in his presence. The Lower Appellate Court, therefore, fell in error in coming to the conclusion that the plaintiff Nanak Singh was a literate person and could have signed on the document 59-Ga merely because he had verified certain documents.

The inevitable conclusion that follows is that the document 59-Ga was not executed by the plaintiff in favour of the defendant and as the Lower Appellate Court has recorded a finding that the defendant had not agreed to sell the disputed land only on the basis of this document, the finding of the Lower Appellate Court that the defendant had not agreed to sell the disputed land by means of registered document dated 30th May, 1979 cannot be sustained and is set aside. The Trial Court, on the other hand, was justified in holding that the defendant had executed the agreement to sell.

The finding recorded by the Lower Appellate Court in respect of Issue No.2 namely whether the plaintiff was ready and willing to perform his part of the contract is also based on conjectures and surmises. The plaintiff had clearly sent the notice to the defendant to execute the sale deed and this notice was duly proved by him. The only defence taken up by the defendant was that the agreement to sell had not been executed. The Trial Court on the basis of evidence, both oral and documentary, had recorded a categorical finding that the plaintiff was ready and willing to perform his part of the contract but the Lower Appellate Court has recorded a contrary finding without giving any cogent reason. This finding of the Lower Appellate Court cannot be sustained and is set aside.

The Second Appeal, therefore, succeeds and is allowed. The judgment and decree of the Lower Appellate Court is set aside and that of the Trial Court is restored.

There shall be no orders as to costs.

Date: 3.9.2007

GS


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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