An interesting question arises in this appeal is, as to whether a registered sale deed which does not bear signature of the vendor at the place where his name is written as the vendor, but bears his signatures in places where corrections are made in the text of the sale deed and it also bears signature on the reverse of the last page along with his thumb impression, acknowledging receipt of balance consideration, before the Registrar, can be said to be a valid sale deed or it has to be discarded only because signature of the vendor is absent at the place where his name is written as the vendor.
In the light of the aforesaid position of law, it becomes clear that mere absence of signature of respondent No. 1 at one place in the aforesaid registered sale deed dated 25.01.1999, cannot become the basis for the respondent No. 1 to claim that such sale deed was never executed. The aforesaid question of fact regarding execution of the registered sale deed has to be ascertained on the basis of evidence on record. In the present case, the evidence on record is in the form of both attesting witnesses and the scribe appearing before the Court and deposing in favour of execution of the aforesaid registered sale deed by the respondent No. 1 in favour of the appellant. There is record of the Registrar's Office and facts have come on record showing that the respondent No. 1 is a well educated person and not an illiterate person who was taken for a ride by the appellant and misled into execution of a document which the respondent No. 1 never intended to execute. The appellate Court has erred in proceeding on the basis that the appellant ought to have proved that the signatures and thumb impression on the aforesaid registered sale deed were that of the respondent No. 1, when it was the respondent No. 1 who was denying his signatures and thumb impression on the registered document. Being the plaintiff, the burden was on respondent No. 1 to prove that the signature and thumb impression on the sale deed were not his, particularly because it was a registered document. It is also a fact that the respondent No. 1 never filed any police complaint in respect of his signatures having been allegedly forged on the registered sale deed dated 25.01.1999, which is also a relevant factor in the present case. The appellant examined both the attesting witnesses and scribe to prove that the respondent No. 1 indeed executed the registered sale deed on 25.01.1999 in the Registrar's Office. The appellate Court has held that emphasis placed by the trial Court on admission of respondent No. 1 about oral agreement to sale, was misplaced. But, this conclusion of the Appellate Court is also erroneous because the admission of oral agreement on the part of the respondent No. 1 did indicate that the parties were in the process of executing the aforesaid registered sale deed pertaining to the suit property. Even if the appellate Court found that the agreement dated 23.01.1998 was a suspicious document, admission of respondent No. 1 that there was an oral agreement did assume significance in the facts and circumstances of the present case.
IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)
Second Appeal No. 55 of 2016
Decided On: 10.04.2018
Ramesh Vs. Ratnakar and Ors.
Hon'ble Judges/Coram:
Manish Pitale, J.
Citation: 2018( 5) MHLJ 132
1. An interesting question arises in this appeal is, as to whether a registered sale deed which does not bear signature of the vendor at the place where his name is written as the vendor, but bears his signatures in places where corrections are made in the text of the sale deed and it also bears signature on the reverse of the last page along with his thumb impression, acknowledging receipt of balance consideration, before the Registrar, can be said to be a valid sale deed or it has to be discarded only because signature of the vendor is absent at the place where his name is written as the vendor.
2. The appellant has challenged the judgment and order dated 22.09.2014 passed by the Court of District Judge, Wardha (appellate Court) in Regular Civil Appeal No. 241 of 2009, whereby the appellate Court has allowed the appeal and set aside the judgment and decree passed by the Court of Joint Civil Judge, Senior Division, Wardha (trial Court).
3. The suit property in the present case is 1.21 HR of land from out of 5.20 HR in field Survey No. 38 at mouza Khairy, P.H. No. 7, tahsil Seloo, district Wardha. The respondent No. 1 filed Regular Civil Suit No. 501 of 2002, before the trial Court on 16.11.2002, claiming that registered sale deed dated 25.01.1999 (Exh. 35) had been executed fraudulently by the appellant (defendant No. 1) in collusion with respondent Nos. 2 to 5 (defendant Nos. 2 to 5 before the trial Court). It was the case of the respondent No. 1 (plaintiff) that he had never executed the aforesaid sale deed, although it was a registered document and this, according to him, was evident from the fact that the sale deed did not bear his signature at the place where his name was written as the vendor. He also denied his signatures found at other places in the said sale deed. The respondent No. 1 claimed that on the basis of such fraudulently executed sale deed, the appellant had got the suit field mutated in his name on 12.02.1999 and when he came to know about this, he got a notice published on 31.05.2001 in the daily "Lokmat", denying execution of the aforesaid sale deed. Thereafter, on 14.12.2001, the respondent No. 1 lodged a report in the Police Station at Seloo, but no action was taken by the Police. As a result, he was constrained to file the aforesaid suit for cancellation of the sale deed. The respondent No. 1 also prayed for cancellation of the mutation entry made in favour of the appellant and he also claimed a decree for restoration of possession of the suit field.
4. The appellant appeared in the said suit and filed his written statement, denying the claim made by the respondent No. 1. It was denied that the cause of action for the respondent No. 1 was triggered when the appellant allegedly took forcible possession of the suit field after mutation entries were made on 12.02.1999. It was pointed out that there was an agreement to sale entered into between the parties, in pursuance of which the registered sale deed dated 25.01.1999 was executed and that merely because signature of the respondent No. 1 was not found at the place in the sale deed where his name was written as vendor, it could not be said that the sale deed was fraudulently executed. It is also pointed out that the aforesaid registered sale deed had signatures of the respondent No. 1 at places where corrections were made and that his signature and thumb impression was taken on the reverse of the last page in the presence of the Registrar, acknowledging receipt of balance amount of consideration of Rs. 30,000/-. It was further contended that the witnesses to the sale deed had appeared before the Court and deposed in support of execution of the sale deed. In the face of these facts, it was contended that the suit was without any merit and that it deserved to be dismissed.
5. Upon completion of pleadings and recording of evidence, the trial Court passed its judgment and order dated 30.10.2009, dismissing the suit filed by respondent No. 1. The trial Court found that the aforesaid registered sale deed was valid and that the respondent No. 1 had failed to prove that he had been forcibly dispossessed by the appellant after 12.02.1999. Aggrieved by the same, the respondent No. 1 filed Regular Civil Appeal No. 241 of 2009, before the appellate Court.
6. The appellate Court has reversed the findings of the trial Court by the impugned judgment and order and it has found that the suit filed by the respondent No. 1 was within limitation and that the registered sale deed dated 25.01.1999 (Exh. 35) was to be treated as cancelled. It was declared as null and void. The appellant was directed to hand over possession of the suit field to the respondent No. 1 within a period of one month from the date of the judgment and order.
7. Aggrieved by the same, the appellant has filed this second appeal. On 05.12.2017, this Court issued notice indicating that the appeal shall be decided at admission stage, framing two substantial questions of law, which read as follows:-
"(i) Whether the plaintiff has proved that he has not executed the sale deed dated 25.01.1999, Exh. -35?
(ii) Whether the appellate Court was right in holding that the suit was not barred by limitation?"
8. Admit, on the above substantial questions of law. Heard finally with the consent of the learned counsel appearing for the parties.
9. Mr. R.A. Haq, learned counsel appearing on behalf of the appellant, has submitted that the appellate Court committed a grave error in declaring registered sale deed dated 25.01.1999 (Exh. 35) as null and void, when the respondent No. 1 had failed to produce evidence and material on record to create any doubt about the execution of the said registered sale deed. It was contended that merely because signature of the respondent No. 1 was absent at one place where his name was written as the vendor executing the sale deed, it could not be held that the said registered sale deed was null and void. It was pointed out that there was an agreement between the parties which led to execution of the aforesaid registered sale deed and that, in any case, even the respondent No. 1 had admitted that there was an oral agreement between the parties for sale of the suit field. It was further pointed out that, apart from the fact that the sale deed dated 25.01.1999 was a registered document, both attesting witnesses and the scribe of the said registered sale deed were produced before the Court, who deposed regarding execution of the same by the respondent No. 1 before the registering authority. It was submitted that when such positive evidence was placed on record, the appellate Court was not justified in holding that the aforesaid sale deed was to be treated as null and void. It was further pointed out that the respondent No. 1 had failed to give any specific date as to when he was allegedly forcibly dispossessed and the point in time when cause of action accrued to him. On this basis, it was submitted that the appellate Court erred in holding that the suit was within limitation. Reliance was placed on judgment of the Hon'ble Supreme Court in the case of Rajendra Pratap Singh vs. Rameshwar Prasad - AIR 1999 Supreme Court 37.
10. Per contra, Mr. Akhtar Nawab Ansari, learned counsel appearing on behalf of respondent No. 1, submitted that the impugned judgment and order was fully justified because the most crucial document i.e. the aforesaid sale deed dated 25.01.1999 (Exh. 35) did not contain signature of the respondent No. 1 at the place where it mattered the most. Apart from this, it was contended that the respondent No. 1 had denied his signatures at other places on the said sale deed and that, therefore, it was for the appellant to have proved with cogent evidence that such a document was indeed executed. It was contended that the manner in which the mutation entries were carried out, demonstrated that the entire acts undertaken by the appellant from the stage of alleged execution of aforesaid sale deed to the taking of mutation entries demonstrated fraud committed on the respondent No. 1, showing that the aforesaid sale deed was null and void. It was contended that the cause of action for the respondent No. 1 to approach the Court accrued upon the aforesaid mutation entry being made in favour of the appellant and forcible dispossession of the respondent No. 1, pursuant to which he published notice in newspaper and subsequently filed police complaint. On this basis, it was claimed that the suit was very much within limitation and that the impugned order passed by the appellate Court did not deserve any interference. In support of his contentions, the learned counsel placed reliance on judgment of the Calcutta High Court in the case of Kali Charan Naskar vs. Sudhir Chandra Naskar - MANU/WB/0014/1985 : AIR 1985 Calcutta 66.
11. The respondent No. 1 came to the Court with a case that the aforesaid registered sale deed dated 25.01.1999 (Exh. 35) was never executed by him. His signature was absent at the place where the vendor is supposed to affix his signature and he denied the signatures found at other places in the said sale deed. On the basis of the oral and documentary evidence on record the trial Court found that the aforesaid registered sale deed was executed by respondent No. 1, while dismissing the suit. But, the appellate Court has reversed such findings, thereby cancelling the said sale deed and declaring it as null and void. Since two Courts had arrived at a diametrically opposite findings on the basis of the same material on record, it becomes necessary to analyse the evidence and material on record to ascertain as to which of the two views is sustainable and also to answer the above mentioned substantial questions of law framed by this Court.
12. At Exh. 35 is the registered sale deed dated 25.01.1999. Perusal of the same shows that signature of the respondent No. 1 (vendor) is absent at the place where his signature is supposed to be affixed, towards the end of the document. Only the signature of the appellant is found at that place. There are signatures of two attesting witnesses Keshao Marotrao Ghongade (witness No. 3) for the appellant/defendant No. 1 and Bhaskarrao R. Gode (witness No. 2) for the appellant/defendant No. 1. The said document is scribed by Vinod Nimbalkar (witness No. 4) for the appellant/defendant No. 1. The said document also shows signatures, said to be that of the respondent No. 1 at two places where certain corrections are made and on the reverse of the last page. At the said place on the reverse of the last page, apart from signature one thumb impression said to be that of the respondent No. 1 is found affixed in presence of the Registrar wherein it is acknowledged that balance amount of consideration of Rs. 30,000/- has been received by the respondent No. 1.
13. Since the respondent No. 1 claimed that such a sale deed was never executed and that he had never signed on any part thereof, the appellant has produced two attesting witnesses as well as the scribe as his witnesses in support of his assertion that the aforesaid registered sale deed dated 25.01.1999 (Exh. 35) was indeed executed. A perusal of the evidence of the two attesting witnesses and the scribe shows that all of them have stated that the respondent No. 1 had come to the office of the Registrar and executed the said registered sale deed Exh. 35 in their presence. The scribe Vinod Nimbalkar (witness No. 4) has stated that the contents of the registered sale deed were prepared by him on the basis of instructions given by the appellant and the respondent No. 1. These witnesses, have also stated that the respondent No. 1 signed in their presence even in the register maintained in the office of the Registrar when the aforesaid sale deed was executed. They have also stated about the payment of balance consideration by the appellant to the respondent No. 1.
14. Apart from this, another witness Devendra Katlatlaware has appeared for the defendant Nos. 2 to 5 (respondent Nos. 2 to 5 herein), who has stated that at the time of giving evidence he was working as Sub Registrar in the Registrar's Office. The said witness has stated that record of the office shows that there is thumb impression and signature of the respondent No. 1 in respect of the aforesaid registered sale deed dated 25.01.1999. This is the nature of evidence produced on behalf of the appellant, apart from the original registered sale deed dated 25.01.1999 (Exh. 35), to show that the claims made by the respondent No. 1 that the sale deed was never executed, were baseless and that he could not be permitted to turn around and claim that such a sale deed was never executed, merely because his signature was absent at one place in the sale deed.
15. A perusal of the evidence of the said witnesses also shows that an explanation is sought to be given as to why signature of the respondent No. 1 remained to be affixed at one place in the aforesaid registered sale deed, which was that the respondent No. 1 had gone to Wardha and he had come late to the Registrar's office and that in the hurry of getting the registered sale deed executed, his signature at one place remained to be affixed.
16. A perusal of the evidence of the respondent No. 1 shows that he was Principal of Junior College and that he knew both the aforesaid attesting witnesses to the registered sale deed. He further admits that there was an oral agreement with the appellant for sale of the suit property. He has also stated that he gave possession of the suit agricultural property to the appellant for cultivation but no document had been executed in respect of the same. It is relevant that the suit agricultural property consists of 1.21 HR land from 5.20 HR land in survey No. 38. The balance land is with the respondent No. 1. Thus, respondent No. 1 is a well educated person, who admits that there was an oral agreement with the appellant in respect of sale of the suit property. He continues to be in possession of the balance agricultural land owned by him other than the suit property in Survey No. 38. These factors are important in the context of claims made by the respondent No. 1 that he was totally unaware about execution of the aforesaid registered sale deed and that he was forcibly dispossessed from the suit property about which he has not been able to give any specific date.
17. The appellant has sought to rely upon an agreement to sale dated 23.01.1998 executed between him and the respondent No. 1. This document has been placed on record of the trial Court along with list of documents at Exh. 10. It is contended by the appellant that the said agreement led to execution of the aforesaid registered sale deed dated 25.01.1999. Although the said agreement is not exhibited, the respondent No. 1 has contended that there are corrections and overwriting in the same, showing that it is a dubious and suspicious document which the Court could not have looked at. Yet, the fact that an oral agreement between the appellant and the respondent No. 1 took place has been admitted.
18. The trial court has found that the said sale deed dated 25.01.1999 was a registered document and that the appellant had produced the attesting witnesses, as well as the scribe, as witnesses in the Court and that existence of oral agreement admitted by the respondent No. 1 clearly demonstrated that the registered sale deed was a valid document. It was also found that the respondent No. 1 had failed to show as to when he was forcibly dispossessed by the appellant, and that the evidence and material on record did not support the contentions of the respondent No. 1 that the registered sale deed was null and void. On the other hand, the appellate Court has placed emphasis on the fact that absence of signature of the respondent No. 1 at the most crucial place in the sale deed was fatal and that when the respondent No. 1 had denied his signatures and thumb impression on the sale deed, it was for the appellant to have proved that the signatures and thumb impression were indeed those of the respondent No. 1. The appellate Court has held that the suit was within limitation because the mutation entries had taken on 12.02.1999 and respondent No. 1 had published notice in the newspaper on 31.05.2001 and thereafter filed the suit on 16.11.2002.
19. It is significant that in the present case the respondent No. 1 has come to the Court claiming that a registered sale deed was null and void and deserved cancellation. In support of the said contention, he has denied his signatures and thumb impression on the said registered sale deed and he has stated that absence of his signature at the most crucial place in the registered sale deed proves the fact that it was never executed. When such a claim is made by the respondent No. 1, it is a serious matter, because if such claims are accepted lightly, it would become very easy for a vendor or for that matter any party to a registered sale deed to come to the Court and deny the very execution and existence of such a document. The sanctity attached to the whole process of execution of such registered document before the Office of the Registrar in presence of attesting witnesses would be jeopardized. Hence, it is necessary to analyse as to what evidence and material did the appellant (defendant No. 1), purchaser of the suit property under the aforesaid registered sale deed, place before the Court to demonstrate that the claims made by the respondent No. 1 (vendor) were unsustainable.
20. In order to prove that the aforesaid registered sale deed was indeed executed by the respondent No. 1 in his favour, the appellant produced the two attesting witnesses before the Court as also the scribe of the said registered sale deed. All these witnesses have deposed to the effect that the respondent No. 1 had actually remained present in the office of the Registrar and that he had executed the said document in their presence. His signatures and his thumb impression on the registered sale deed were stated by the said witnesses to have been affixed in their presence, along with signatures and thumb impression on the register maintained in the office of the Registrar. A witness from the office of the Registrar has also made statements to that effect. The attesting witnesses and the scribe have also stated about payment of balance amount of consideration in their presence by the appellant to the respondent No. 1 and the fact that the same was recorded in the presence of the Registrar on the reverse of the last page of the registered sale deed. The scribe has specifically stated that the contents of the registered sale deed were drafted on the instructions of the respondent No. 1 and the appellant. The respondent No. 1 has admitted that an oral agreement had taken place between him and the appellant in respect of the sale of the suit property. Admittedly, the respondent No. 1 was a well educated person, being a Principal of the Junior College and he continued to be in possession of the balance land, other than the suit property, in Survey No. 38.
21. The appellant did everything that he could have, in terms of placing on record evidence to dispel the contentions of the respondent No. 1 that said registered sale deed was never executed. The only factor that the respondent No. 1 has harped upon is absence of his signature at the place where his name is stated as vendor executing the registered sale deed. The learned counsel appearing on behalf of respondent No. 1 has relied upon the aforesaid judgment of the Calcutta High Court in the case of Kali Charan Naskar vs. Sudhir Chandra Naskar (supra) to claim that in the absence of signature and thumb mark on a registered sale deed, its execution was invalid. But, in this case, it is not as if signature or thumb impression of the respondent No. 1 cannot be seen at any place in the registered sale deed, but, it is found that signatures are affixed where corrections are made in the sale deed and on the reverse of the last page along with thumb impression acknowledging the receipt of the balance consideration in presence of the Registrar. Thus, reliance placed on the said judgment on behalf of the respondent No. 1 is misplaced.
22. The Hon'ble Supreme Court in the case of Rajendra Pratap Singh vs. Rameshwar Prasad (supra) has held in the context of a lease made by a registered instrument that only because signature of one of the parties is missing in a document, it cannot be concluded that such person did not join in execution of the instrument. The observations made by the Hon'ble Supreme Court in the said judgment, are not limited to a lease deed, but, they are made with reference to execution of registered instruments. It has been laid down that the question as to whether both parties indeed executed the instrument or not, will be a question of fact to be determined on the basis of evidence. Relevant portion of the said judgment reads as follows:-
"10. A close reading of the third paragraph indicates that there is no stipulation that the instrument must be signed by both parties. The requirement is that when the lease is made by a registered instrument, "such instrument shall be executed by both the lessor and lessee." What is underlined in it is that the creation of a lease is not a unilateral exercise of one of the parties but a bilateral endeavour of both the lessor and the lessee.
11. The word "execute" is given the meaning in Black's Law Dictionary as "to complete; to make; to sign; to perform; to do; to follow out; to carry out according to its terms; to fulfill the command or purpose of." In "Words and Phrases" (Permanent Edition) the word "execute" is given the meaning as "to complete as a legal instrument; to perform what is required to give validity to." An instrument is usually executed through multifarious steps of different sequences. At the first instance, the parties might deliberate upon the terms and reach an agreement. Next the terms so agreed upon would be reduced to writing. Sometime one party alone would affix the signature on it and deliver it to the other party. Sometimes both parties would Affix their signature on the instrument. If the document is required by law to be registered, both parties can be involved in the process without perhaps obtaining the signatures of one of them. In all such instances the instrument can be said to have been executed by both parties thereto. If the instrument is signed by both parties it is presumptive of the fact that both of them have executed it, of course it is only rebuttable presumption. Similarly if an instrument is signed by only one party it does not mean that both parties have not executed it together. Whether both parties have executed the instrument will be a question of fact to be determined on evidence if such a determination is warranted from the pleadings of the particular suit. Merely because the document shows only the signature of one of the parties it is not enough to conclude that the non-signing party has not joined in the execution of the instrument."
23. In the light of the aforesaid position of law, it becomes clear that mere absence of signature of respondent No. 1 at one place in the aforesaid registered sale deed dated 25.01.1999, cannot become the basis for the respondent No. 1 to claim that such sale deed was never executed. The aforesaid question of fact regarding execution of the registered sale deed has to be ascertained on the basis of evidence on record. In the present case, the evidence on record is in the form of both attesting witnesses and the scribe appearing before the Court and deposing in favour of execution of the aforesaid registered sale deed by the respondent No. 1 in favour of the appellant. There is record of the Registrar's Office and facts have come on record showing that the respondent No. 1 is a well educated person and not an illiterate person who was taken for a ride by the appellant and misled into execution of a document which the respondent No. 1 never intended to execute. The appellate Court has erred in proceeding on the basis that the appellant ought to have proved that the signatures and thumb impression on the aforesaid registered sale deed were that of the respondent No. 1, when it was the respondent No. 1 who was denying his signatures and thumb impression on the registered document. Being the plaintiff, the burden was on respondent No. 1 to prove that the signature and thumb impression on the sale deed were not his, particularly because it was a registered document. It is also a fact that the respondent No. 1 never filed any police complaint in respect of his signatures having been allegedly forged on the registered sale deed dated 25.01.1999, which is also a relevant factor in the present case. The appellant examined both the attesting witnesses and scribe to prove that the respondent No. 1 indeed executed the registered sale deed on 25.01.1999 in the Registrar's Office. The appellate Court has held that emphasis placed by the trial Court on admission of respondent No. 1 about oral agreement to sale, was misplaced. But, this conclusion of the Appellate Court is also erroneous because the admission of oral agreement on the part of the respondent No. 1 did indicate that the parties were in the process of executing the aforesaid registered sale deed pertaining to the suit property. Even if the appellate Court found that the agreement dated 23.01.1998 was a suspicious document, admission of respondent No. 1 that there was an oral agreement did assume significance in the facts and circumstances of the present case.
24. This demonstrates that the appellate Court committed a serious error in appreciating the evidence and material on record, leading to perverse findings, while reversing the judgment and decree of the trial Court. The appellate court erred in holding that the respondent No. 1 had proved that he had not executed the registered sale deed dated 25.01.1999 (Exh. 35) and that the same deserved to be cancelled, being null and void. Accordingly, the first substantial question of law framed by this Court is answered in favour of the appellant and against the respondent No. 1.
25. The second substantial question of law pertains to the question as to whether the suit was filed within limitation by the respondent No. 1. A perusal of the plaint in the present case shows that the respondent No. 1 has claimed that cause of action accrued to him on 25.01.1999, when the registered sale deed was executed, then on 12.02.1999 when mutation entries were made and thereafter on 14.01.2002 when the respondent No. 1 served notice to the defendants under Section 80 of the Code of Civil Procedure. In the plaint, it is also claimed by the respondent No. 1 that he was forcibly dispossessed and that he had caused notice dated 31.05.2001 to be issued in the newspaper regarding the alleged fraudulent sale deed and that a police complaint was submitted by him on 14.12.2001, regarding the said fraud. The suit was filed by the respondent No. 1 on 16.11.2002. If the dates 25.01.1999 i.e. execution of registered sale deed and 12.02.1999 i.e. date of mutation entry, are taken into consideration, the suit is clearly barred by limitation as it was filed on 16.11.2002, well beyond the period of limitation of three years. The cause of action to file the suit could not be said to have accrued to the respondent No. 1 from the date when he published a notice in the newspaper on 31.05.2001 or the police complaint made on 14.12.2001. In the plaint or anywhere in the evidence, the respondent No. 1 has not stated the date on which he was allegedly forcibly dispossessed. Considering the fact that the respondent No. 1 is a well educated person, being Principal of a Junior College, and the fact that he continued in ownership and possession of the balance portion of land other than the suit property in Survey No. 38, it becomes clear that the respondent No. 1 has not clearly demonstrated the point in time when cause of action was triggered for him. Consequently, the material on record shows that the suit was barred by limitation, which the appellate Court failed to appreciate. Thus, the aforesaid second substantial question of law is also answered against the respondent No. 1 and in favour of the appellant.
26. In the light of the above, the instant appeal is allowed, the impugned judgment and order of the appellate Court is set aside and that of the trial Court is restored and the suit filed by the respondent No. 1 is dismissed. There shall be no order as to costs.
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