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Safia Banu Vs. Asamadhunnisabi - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Reported in(2001)1MLJ172
AppellantSafia Banu
RespondentAsamadhunnisabi
Cases ReferredIndravanthi v. Kamala
Excerpt:
- v. kanagaraj, j.1. the defendant in the suit in o.s. no. 131 of 1981 has preferred this letters patent appeal against the judgment and decree dated 19.1.1996 made in a.s. no. 737 of 1984 thereby confirming the judgment and decree dated 7.8.1984 made by the court of subordinate judge, tiruppattur. 2. it is a suit filed by the respondent herein for specific performance of a contract dated 25.6.1981 alleged to have been executed in between the appellant and the respondent thereby the appellant agreeing to sell the suit property in favour of the respondent for a sale consideration of rs. 31,000, and on payment of an advance amount of rs. 15,000 and on further agreement that in four months time, that is within 25.10.1981, on payment of the balance sale consideration of rs. 14,000, by the.....
Judgment:

V. Kanagaraj, J.

1. The defendant in the suit in O.S. No. 131 of 1981 has preferred this Letters Patent Appeal against the judgment and decree dated 19.1.1996 made in A.S. No. 737 of 1984 thereby confirming the judgment and decree dated 7.8.1984 made by the Court of Subordinate Judge, Tiruppattur.

2. It is a suit filed by the respondent herein for specific performance of a contract dated 25.6.1981 alleged to have been executed in between the appellant and the respondent thereby the appellant agreeing to sell the suit property in favour of the respondent for a sale consideration of Rs. 31,000, and on payment of an advance amount of Rs. 15,000 and on further agreement that in four months time, that is within 25.10.1981, on payment of the balance sale consideration of Rs. 14,000, by the respondent/plaintiff, the appellant/defendant should come forward to execute the sale deed in favour of the plaintiff.

3. The further case of the plaintiff is that prior to the suit agreement, there had been yet another agreement entered into in between the parties on 2.1.1981 in respect of the same property on similar terms and conditions and on receipt of a sum of Rs. 10,000 as advance and since the defendant did not come forward to execute the sale deed as per the terms and conditions of the said agreement, the plaintiff approached the defendant and requested to execute a fresh agreement in respect of the same property and as further agreed on payment of a further sum of Rs. 5,000 in cash to the defendant, on the date of suit agreement and adjusting the advance amount of Rs. 10,000 paid under earlier agreement dated 2.1.1981 for the sale consideration, the suit agreement dated 25.6.1981 was entered into when it was agreed that in four months' time, on payment of the balance sale consideration by the plaintiff, the defendant should execute the sale deed in her favour; that in spite of the plaintiff being ready and willing to get the sale registered in her favour on payment of the balance sale consideration, since the defendant did not comply with the same, a notice dated 23.10.1981 had been issued for which the defendant replied on 2.11.1981, but never complied with the agreement, and hence, the suit for specific performance of the contract.

4. On the part of the defendant, she would submit that in accordance with the earlier agreement dated 2.1.1981 since the plaintiff did not come forward to get the sale registered in her favour in time as agreed on payment of the balance sale consideration of Rs. 21,000, the defendant returned the advance amount of Rs. 10,000 already paid to her as per the first agreement dated 2.1.1981 and the plaintiff also returned the said sale agreement deed and it was only for the default committed on the part of the plaintiff, the sale deed was not executed; that the plaintiff created the suit agreement dated 25.6.1981 by forging the signature of the defendant; that the defendant never signed the suit agreement at all, nor her husband attested the same; that the plaintiff cannot claim any right under a forged document; that the plaintiff has not approached the court with clean hands and hence, is not entitled to the discretionary relief of specific performance and would pray for dismissing the suit.

5. On these pleadings, the trial court that is the Court of Subordinate Judge, Tiruppattur, has framed five issues, viz., (i) Whether the agreement dated 2.1.1981 was cancelled? (ii) Whether the agreement dated 25.6.1981 is true, valid and binding on the defendant? (iii) Whether for specific performance of the agreement dated 25.6.1981, for the reasons assigned on the part of the defendant, is not the plaintiff entitled to the relief sought for? (iv) Whether the agreement dated 25.6.1981 is a fabricated one? and (v) What relief, if any, is the plaintiff entitled to?

6. For determination of these issues framed, the trial court has conducted the trial in which, on the part of the plaintiff, besides examining herself as P.W.1, she had also examined two more witnesses as P.Ws.2 and 3. The plaintiff had also marked 4 documents as Exs.A-1 to Ex.A-4; Ex.A-1 being the sale agreement dated 25.6.1981; Ex.A-2 being the legal notice dated 23.10.1981; Ex.A-3 being the reply dated 2.11.1981 sent by the defendant and Ex.A-4 being the rejoinder dated 26.11.1981. On the part of the defendant, besides examining her husband as the sole witness D.W.1, she would also mark 3 documents as Exs.B-1 to B-3; Ex.B-1 being the sale agreement dated 2.1.1981; Ex.B-2 being a registered mortgage deed dated 7.5.1978 and Ex.B-3 being yet another mortgage deed dated 8.12.1976. The trial court, having appreciated these evidence placed on record and having a wide discussion on all these oral and documentary evidence placed, would ultimately arrive at the conclusion to hold that the plaintiff is entitled to the relief prayed for and would decree the suit accordingly.

7. On appeal, the learned single Judge of this Court, having had his own discussion and remarking that 'the drafting of the agreement under Ex.A-1 may not be proper, but the explanation given by the plaintiff and her two witnesses established the circumstances under which the suit agreement had been entered into between the parties cannot lead to the inference that the plaintiff had come forward with the false version so as to hold that the plaintiff was not entitled to the discretionary relief of specific performance. Considering all these aspects, the first appellate court was of the opinion that the appeal was without merits. On such remarks, the first appellate court would ultimately dismiss the appeal confirming the judgment and decree of the trial court.

8. It is only against these concurrent findings of the trial court and the first appellate court as well, the defendant in the suit has come forward to prefer the above Letters Patent Appeal on grounds, such as, (i) that the learned Judge ought to have found that Ex.A-1 suit agreement has not at all been proved which has been fraudulently created by the plaintiff with the help of her husband and others; (ii) that the learned Judge ought to have rejected the theory that the defendant executed an agreement dated 2.1.1981 stipulating a period of six months on account of the defendant wanting some more time for vacating the property which did not fructify and the suit agreement was executed; (iii) that the learned Judge has failed to see that in such event, the easiest way would have been to make an endorsement on Ex.B-1 agreement dated 2.1.1981 extending the time and not to cancel the same and execute a fresh agreement under Ex. A-1; (iv) that the learned Judge ought to have rejected the evidence of the plaintiff's witnesses as highly interested and totally unworthy to grant the decree for specific performance of such a large sum of Rs. 31,000; (v) that the learned Judge ought to have found the signature of the defendant in Ex.A-1 is patently dissimilar with the other admitted signatures; (vi) that the learned Judge has failed to take note of the improbability of the plaintiff returning Ex.B-1 to the defendant and the natural human conduct would have been to retain the custody of Ex.B-1 with her; (vii) that the learned Judge has failed to note that there is absolutely no mention of Ex.B-1 in Ex.A-1 thereby clearly showing that Ex.A-1 ought to have been created by plaintiff purposely; (viii) that the learned Judge has further failed to note that if really the defendant wanted time to perform her part of the earlier contract and execute a fresh agreement of sale, the plaintiff would have paid only Rs. 5,000 since already a sum of Rs. 10,000 had been paid under Ex.B-1. From the theory of the plaintiff that she paid Rs. 15,000 on the day of Ex.A-1 would clearly show that the said document is a concocted one; (ix) that the learned Judge ought to have found that the signature of D.W.1 as an attestor in Ex.A-1 is a forged one and the learned Judge has erred in not properly appreciating the vital difference in the signature of the defendant and D.W.1 in Ex.A-1 with the admitted signatures in the other documents; (x) that the learned Judge ought to have rejected the evidence of the plaintiff that she paid only Rs. 5,000 on the date of Ex.B-1 which is at variance with the recitals therein besides such oral evidence being prohibited by Section 92 of the Evidence Act; (xi) that the lower appellate court ought to have rejected the theory put forward by the plaintiff that she took back Rs. 10,000 paid under Ex.B-1 and again paid Rs. 15,000 on the very same day to the defendant. This theory besides being unacceptable, would further go to show that the plaintiff has come to the court with polluted hands thus becoming disentitled to the relief of specific performance. On such and other grounds, the appellant would pray to allow the appeal with costs throughout.

9. During arguments, the learned senior counsel appearing for the appellant would make an attempt to impress upon the court to the effect that the remedy under Section 20 of the Specific Relief Act being an equitable remedy, the respondent/plaintiff is expected to come to the court with clean hands and in the case in hand, the facts and circumstances do not favour the plaintiff who had approached the court polluted; that Ex. A-1 is a document manipulated and made up and there are many variations in the signatures of the defendant and her husband in Ex.A-1; that the trial court should have referred it to the handwriting and signature experts to ascertain the signatures of the defendant and her husband in Ex.A-1 to have a comparative examination with their admitted signatures to find out the genuineness and truthfulness of Ex.A-1 especially when a strong plea has been taken on the part of the appellant before the trial court that Ex.A-1 was a forged document. The learned Counsel would also cite some inconsistencies or contradictions from the evidence of the plaintiff's witnesses. The learned Counsel would also argue that in Letters Patent Appeals, the facts and circumstances could very well be considered by this Court as concluded in a case of the Supreme Court, viz., Baddula Lakshmaiah v. Sri Anjaneya Swami Temple : [1996]2SCR906 , wherein it is held:.A Letters Patent Appeal, as permitted under the Letters Patent, is normally an intra-court appeal whereunder the Letters Patent Bench, sitting as a Court of Correction, corrects its own orders in exercise of the same jurisdiction as was vested in the Single Bench. Such is not an appeal against an order of a Subordinate Court. In such appellate jurisdiction the High Court exercises the powers of a Court of Error. So understood, the appellate power under the Letters Patent is quite distinct, in contrast to what is ordinarily understood in procedural language. That apart the construction of the two documents involved, in the very nature of their import, mixed question of law and fact, was well within the powers of the Letters Patent Bench to decide. The Bench was not powerless in that regard.

10. On the contrary, the learned Counsel appearing on behalf of the respondent would ascertain that both the trial court and the first appellate court have properly considered the factual situation of the case and have concurrently held accepting the case of the plaintiff thereby decreeing the suit and unless on strong legal grounds and reasons the contrary plea is established, interference of this Court in this appeal is a remote possibility nor is it really called for in the circumstances of the case and would pray for dismissing the LPA.

11. Two aspects which are heavily relied upon on the part of the appellant's counsel need discussion. They are (i) the appreciation of evidence by this Court regarding the construction and coming into being of the two documents involved (Exs.B-1 and A-1) since in the very nature of their import, mixed questions of law and fact are involved and hence requiring consideration on evidence and (ii) exercise of discretionary jurisdiction by Courts below in favour of plaintiff in granting the specific relief within the meaning of Section 20 of the Specific Relief Act, in spite of herself having not approached the court with clean hands. So far as the first question taken up for discussion is concerned, admitting the above proposition of law propounded in the case delivered in Baddula Lakshmaiah v. Sri Anjaneya Swamy Temple : [1996]2SCR906 , and being conscious of the powers of this Bench to go into the mixed questions of law and fact, if the case in hand is taken up for discussion, the uniform case maintained on the part of the plaintiff/respondent in this appeal is that in Ex.B-1 dated 2.1.1981, an agreement of sale had been entered into between the plaintiff and the defendant regarding the sale of the suit property of the defendant, the plaintiff having agreed to purchase the same for a sale consideration of Rs. 31,000 and on payment of an advance amount of Rs. 10,000 that even though the plaintiff was ready and willing to get the sale registered in her favour, on payment of the balance sale consideration of Rs. 21,000 within the stipulated period of six months thereafter, since the defendant represented that she was not able to make an alternative arrangement for her residence, so as to hand over vacant possession of the suit house, both agreed to cancel the agreement and to enter into a fresh agreement on payment of a further sum of Rs. 5,000 as part payment of the sale consideration, and hence Ex.A-1, agreement for sale dated 25.6.1981 had been duly entered into by parties, the defendant's husband signing as the attesting witness therein, filing a time of four months for consummation of the sale.

12. In proof of these pleadings, the plaintiff, besides examining herself as P.W.1, has also examined two more witnesses as P.Ws.2 and 3. P. W.2, viz., Mehaboob Sheriff who is the attestor to Exs.A-1 and B-1 clearly adducing evidence to the effect of the execution of both these vital documents on the respective dates well withstanding the cross-examination. P.W.3 is one Subramani, who is the scribe of Ex.A-1 and this witness would also confirm the coming into being of Ex.A-1, the recitals therein and the manner of execution of the same and the circumstances under which the document had been executed in the presence of the defendant and her husband. Both these witnesses, viz., P.Ws.2 and 3, besides confirming the transactions that took place at the time of the execution of both and in the manner alleged in the plaint; that they have also identified the signatures of the parties and the attesting witnesses without any strain, and hence, the other theory that is attributed for Ex.B-1 to have come into existence in a clandestine manner forging the signatures of the defendant and her husband fraudulently has not been accepted by the trial court and the first appellate court as well.

13. The minor differences pointed out from the signatures of the defendant and her husband who is the attesting witness have not been taken serious note of by both the courts below since according to them, there was no large difference that could be found there, nor the slight differences pointed out on the part of the plaintiff is uncommon and since they could not be taken serious note of, both the courts, on facts and circumstances that existed and proved would concurrently dismiss the theory of forgery attributed by the defendant for Ex.A-1 and the doubts cast in the coming into being of this document and accept the case of the plaintiff as framed, projected and established.

14. A peep into the judgments of both the Courts below would indicate that both the courts have well considered the facts and circumstances of the case in the right angle appreciating the evidence sufficiently and in the manner expected by law and would dismiss the plea of the defendant that Ex.A-1 document was fabricated since the plea of fabrication of Ex.A-1 has not been proved before both the courts below by the defendant even to a smaller extent. We see that there is every reason for both the courts below to reject the contention of fabrication as not a tenable one nor proved in evidence.

15. Moreover, so far as the plea of forgery is concerned, even though the appellant has loitered much in the appeal, it comes to be known that during trial, not the least attempt had been taken on his part to refer Ex.A-1 document to a signature expert for investigation, as rightly pointed out by the first appellate court. Regarding the grounds raised in this L.P.A, they are all based on facts and almost all the grounds have been considered and answered by the courts below especially, by the first appellate court, the last court of facts. We have also sufficiently discussed the facts in general in the preceding paragraphs and hence, it is decided to have the discussion only on those relevant questions raised in the arguments of the learned Counsel for both.

16. For the other proposition that the plaintiff should come to the court with clean hands, so far as the relief of specific performance which is an equitable remedy is concerned, the learned Counsel would cite three judgments, the first one reported in Lourdu Mari David v. Louis Chinnaya Arogiaswamy : AIR1996SC2814 , the second one reported in Nallaya Gounder and Anr. v. P. Ramaswami Gounder, etc. and Ors. (1993) 1 M.L.J. 686 : (1993) 2 L.W. 86, and the third one reported in Indravanthi v. Kamala (2000) 3 M.L.J. 106. In the first judgment cited above, the Apex Court has held:

Under Section 20 of the Specific Relief Act, the decree for specific performance is in the discretion of the Court but the discretion, should not be refused arbitrarily. The discretion should be exercised on sound principles of law capable of correction by an appellate court.

It is settled law that the party who seeks to avail of the equitable jurisdiction of a Court and specific performance being equitable relief, must come to the Court with clean hands. In other words, the party who makes false allegations does not come with clean hands and is not entitled to the equitable relief.

In the second judgment cited above, a Division Bench of this High Court, adhering to the facts therein, has held:.the court has no hesitation in negativing specific performance for the reason that the plaintiffs have not come forward with clean hands in asking for the equitable relief. There is positive proof that Ex.A-9 delivery receipt has been concocted for the purpose of this case. 'We have also seen that the plaintiffs have put forward a false case regarding convening of panchayat... the plaintiffs cannot maintain this action.

In the last judgment cited above, a single Judge of this Court has held that a suitor who comes to court with mutually conflicting versions in the pleadings and evidence cannot claim or obtain an equitable remedy.

17. So far as this question that pertains to Section 20 of the Specific Relief Act is concerned, we feel it is relevant to extract Section 20 of the Specific Relief Act:

Section 20. Discretion as to decreeing specific performance - (1) The jurisdiction to decree specific performance is discretionary, and the court is not bound to grant such relief merely because it is lawful to do so; but the discretion of the Court is not arbitrary but sound and reasonable, guided by judicial principles and capable of correction by a court of appeal.

(2) The following are cases in which the court may properly exercise discretion not to decree specific performance-

(a) where the terms of the contract or the conduct of the parties at the time of entering into the contract or the other circumstances under which the contract was entered into are such that the contract, though not voidable, gives the plaintiff an unfair advantage over the defendant; or.

(b) where the performance of the contract would involve some hardship on the defendant which he did not foresee whereas its non-performance would involve no such hardship on the plaintiff;

(c) where the defendant entered into the contract, under circumstances which though not rendering the contract voidable, makes it inequitable to enforce specific performance.

Explanation 1: Mere inadequacy of consideration, or the mere fact that the contract is onerous to the defendant or improvident in its nature, shall not be deemed to constitute an unfair advantage within the meaning of Clause (a) or hardship within the meaning of Clause (b).

Explanation 2: The question whether the performance of a contract would involve hardship on the defendant within the meaning of Clause (b) shall, except in cases where the hardship has resulted from any act of the plaintiff subsequent to the contract, be determined with reference to the circumstances existing at the time of the contract.

(3) The Court may properly exercise discretion to decree specific performance in any case where the plaintiff has done substantial acts or suffered losses in consequence of a contract capable of specific performance.

(4) 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.

18. Section 20(1) of the Specific Relief Act would contemplate that not merely because it is lawful, the Court is bound to grant the specific relief since the jurisdiction to decree the specific performance is discretionary and such discretionary power conferred on the Court being judicial discretion is capable of correction by a Court of Appeal and Courts are expected to exercise such discretionary powers in a judicious manner. Section 20(2) gives three instances wherein Courts are not expected to exercise the discretion to decree the specific performance. Section 20(3) would contemplate the circumstances under which the Court may properly exercise discretion to decree specific performance and Section 20(4) contemplates where the Court shall not refuse specific performance of a contract to any party.

19. Bearing these implications of the Section in mind and in further consideration of the propositions held in the above judgments cited in this regard on the part of the appellant, the import of the section, in the context of the case in hand, could be reduced into a nutshell that the specific relief is a discretionary relief of the Court and the discretion should be exercised on sound principles of law and reasons, that there cannot be any arbitrary refusal of the discretionary relief in favour of a party and that the Court shall exercise the discretion in a judicious manner, and the requirement of the warranting circumstances in the given case. Since the power that is exercised under the section by Courts being discretionary one, the party who seeks to avail of the equitable jurisdiction of the Court must come to the Court with clean hands and any party who makes false allegations and does not come with clean hands is not entitled to the equitable relief. While applying these principles to the case in hand, it is pertinent to note that the onus of the defendant to prove that the plaintiff has not come to the Court with clean hands so as to secure the equitable relief that is sought for is in no way less than that has been cast on the plaintiff in proof of the plea of specific relief so as to order performance of the contract.

20. To arrive at a valid conclusion on this point, it is relevant to find out on facts whether the plaintiff has come to the Court with clean hands or not. The pleading put forth on the part of the defendant is vital to the effect that the crucial document Ex.A-1, dated 25.6.1981 is a fabricated document by the plaintiff to suit her convenience, forging the signatures of the defendant and her husband D.W.2. The strong contentions of the defendant are that it was Ex.B-1 dated 2.1.1981 which was the only agreement entered into on terms and conditions as reduced into writing therein, giving a time of six months to fructify the contract, but on account of nonperformance on the part of the plaintiff of the said contract, both parties agreed to cancel the said agreement, as a result of which the defendant returning the advance amount of Rs. 10,000 to the plaintiff, the plaintiff returned the original document in Ex.B-1 and thereafter there had been no agreement ever entered into in between both and that the coming into being of Ex.A-1 agreement is under mysterious circumstances wherein the plaintiff by manipulation and fraud and forging the signatures of the defendant and her husband had created Ex.A-1 and has wrongly come forward to claim specific performance in terms of the said document and on such basis since the plaintiff has not come to the Court with clean hands, she is not entitled to the relief sought for especially in view of Section 20 of the Specific Relief Act wherein the relief is an equitable and discretionary one.

21. But, on the part of the plaintiff, a different theory would be put forth so far as the coming into being of Ex.A-1 on withdrawal of Ex.B-1. The plaintiff would point out that the defendant was in occupation of the building, which is the subject matter of the contract; that she was not able to fix any other residential building for her occupation within the stipulated time of six months under Ex.B-1, so as to entrust vacant possession of the subject matter at the time of consummating the sale deed and hence at the request of the defendant, they have amicably concluded to withdraw Ex.B-1 agreement and as required on the part of the defendant, paying an additional amount of Rs. 5,000 and adjusting the advance of Rs. 10,000 already paid at the time of execution of Ex.B-1, it has been recited in Ex.A-1 that an advance of Rs. 15,000 had been paid and giving a time of four months for performance of the contract in the presence of the attesting witnesses, Ex.A-1 had been validly executed and the same is true, valid and binding on parties and there is no question of the plaintiff having come to the court with polluted hands so as to deny her the equitable relief sought for in the performance of the contract.

22. As seen in paragraphs 11 and 12 supra, both the trial Court and the Court of first appeal as well, have not only analysed the facts and circumstances as pleaded by the parties but also taking care of the legality involved while considering the agreement in Ex.A-1 and Ex.B-1 and the various circumstances that are attributed on the part of the parties leading the situation to enter into Ex.B-1 agreement dated 2.1.1981 regarding which there is absolutely no controversy but it is only Ex.A-1 dated 25.6.1981, which is not agreed by the defendant stating that she was not at all a party to execute the same and the same is false, fabricated, make-believe and forged.

23. The controversy encircling Ex.A-1 has been widely discussed by the trial Court in an elaborate manner considering not only the oral evidence adduced but also the circumstances encircling the whole case while answering issues Nos.2 and 3 in paragraph Nos.6 and 7 of its judgment and the trial Court would ultimately arrive at the conclusion that the sale agreement in Ex.A-1 dated 25.6.1981 is true, valid and binding.

24. The first appellate Court has also not in small measure dealt with this point in paragraphs No. 6 to 10 of its judgment and would outright reject the theory of fabrication and forgery advanced on the part of the defendant regarding the coming into being of Ex.A-1 agreement observing:

There may be some slight variations in the signatures of D.W.1 and the defendant. It is common knowledge that the signatures of even literate people may have some difference. The slight variations in the signature cannot lead us to the inference that the document is a fabricated one. If really it was so, there is no reason as to why the defendant did not make any effort to have the document under Ex.A-1 examined by the handwriting expert in order to establish that the signatures in the document are not the signatures of herself and her husband. I am of opinion that the theory that there is a variation in the signatures of the defendant and her husband, and it would show that the document has been fabricated is not a tenable.

The learned single Judge would ultimately arrive at the conclusion that the explanation given by the plaintiff and her two witnesses clearly establish the circumstances under which the said document had been entered into between parties and it cannot lead to the inference that the plaintiff has come forward with the false version in order to hold that the plaintiff is not entitled to the dicretionary relief of specific performance and with such remarks, the learned single Judge would ultimately dismiss the first appeal as without merit.

25. We are in the perfect agreement with the conclusions arrived at by the trial court and the Court of first appeal and we have no hesitation to hold that the plaintiff has clearly established that Ex.A-1 had been legally entered into and it is a true and valid document binding on parties and the question of the plaintiff having not approached the Court with clean hands in such circumstances does not arise at all and the only conclusion that could be arrived at in these circumstances is that there is absolutely no necessity on our part to interfere with the concurrent findings of both the courts below ordering specific performance of the contract duly entered into under Ex.A-1 dated 25.6.1981 as prayed for in the suit.

26. In result, the above Letters Patent Appeal, fails and the same is dismissed. The judgment and decree dated 19.1.1996 made in A.S. No. 737 of 1984 by a single Judge of this Court thereby confirming the decree and judgment dated 7.8.1984 made in O.S. No. 131 of 1981 by the Court of Subordinate Judge, Tiruppattur, is upheld.

27. However, in the circumstances of the case, there shall be no order as to costs.


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