Madras HC: It is not necessary to examine attesting witness to prove agreement of sale

 If the revisions are allowed and the prayers are granted, the plaintiff will only prove that the signatures are of the attesting witnesses. As per Sections 68 to 71 of the Indian Evidence Act, the proof of the signatures of the attesting witnesses is necessary only when the document is required by law to be so attested. In case, the document does not require attestation, Sections 68 to 71 would be of no avail. This is clear from Section 72 of the Indian Evidence Act. {Para 17}

18. As per Section 72 of the Indian Evidence Act, an attested document, that is not required to be attested, would have to be proved as if it were unattested. An agreement of sale is not a document which requires attestation. Therefore, the proof that would be required as per Section 72 would be dehors the attestation in the said document. If that be the position of law, then by proving the signatures of the attesting witnesses, it does not take the plaintiff anywhere.

IN THE HIGH COURT OF MADRAS

C.R.P. (PD) Nos. 2927, 2930 of 2022, 

Decided On: 08.08.2024

S. Suresh Vs. K. Vijayalakshmi and Ors.

Hon'ble Judges/Coram:

V. Lakshminarayanan, J.

Citation: MANU/TN/4585/2024.

1. These two civil revision petitions arise against the order passed by the learned III Additional District Judge, Coimbatore in I.A. Nos. 1 and 2 of 2022 in O.S. No. 463 of 2014 dated 07.07.2022.

2. The plaintiff is the civil revision petitioner. He filed O.S. No. 463 of 2014. It is a suit for specific performance of an agreement of sale dated 14.06.2011.

3. The case of the petitioner/plaintiff is that the first defendant had executed a sale agreement in his favour. The terms of the agreement are that the suit schedule mentioned property will be sold in favour of the plaintiff for a sale consideration of Rs. 55,00,000/-. Under the agreement, a sum of Rs. 50,00,000/-was paid leaving aside a sum of Rs. 5,00,000/-to be paid within three months from the date of the said sale agreement. The plaintiff pleads that he approached the first defendant on several occasions to execute the sale deed and since the first defendant was evading the same, he issued a lawyer's notice on 01.09.2014 calling upon the first defendant to be present before the Sub Registrar Office at Periyanaickenpalayam on 08.09.2014. On 08.09.2014 as the first defendant was absent, the plaintiff was left with no other option than to present a suit for specific performance on 10.09.2014 before the learned III Additional District Judge, Coimbatore.

4. On entering appearance, the first defendant filed a detailed written statement.

5. According to her, she never executed any sale agreement in favour of the plaintiff. She would state that her husband, the second defendant had some real estate business with one K.S.Rangasamy of Thiruchengode. During the course of said transaction with K.S.Rangasamy, he had handed over the original sale deed to the said Rangasamy. Although the deal was completed, Rangasamy did not return the document. Since the defendants reposed great faith in Rangasamy, they did not demand for the same immediately. Rangasamy had also given them an assurance that he will return the document as and when he traces out the same. To their shock and surprise, they received an Advocate notice on 01.09.2014, for which they suitably replied on 06.09.2014.

6. On the basis of these pleadings, the matter was taken up for trial after framing the issues.

7. During the stage of arguments, the plaintiff filed two applications namely I.A. No. 1 of 2022 and I.A. No. 2 of 2022.

8. I.A. No. 1 of 2022 is to reopen the suit for the purpose of comparison of signatures of the two attesting witnesses to the sale agreement dated 14.06.2011. I.A. No. 2 of 2022 was to summon the Sub Registrar of Sulur for the production of Thumb Impression Register with respect to document No. 5873 of 2011, the sale deed, in which the attesting witnesses were the parties.

9. The learned Trial Judge issued notice in these applications.

10. A counter statement was filed by the first defendant, which was adopted by the second defendant. Apart from the usual statement that the case is being dragged on by the plaintiff, they would point out that the application to summon the Registrar does not satisfy the requirements of Rule 75(3) of the Civil Rules of Practice. They would also state that the alleged signatures of the second defendant and that of, the other attesting witness, Ganesan are totally irrelevant for the lis that is being disputed over.

11. The learned Trial Judge, after consideration of the arguments on both sides, came to a conclusion that the applications deserved an order of dismissal and accordingly, dismissed it. Against which the present civil revision petitions.

12. I have heard Mr.K.Vijayaraghavan for the civil revision petitioners and Mr.P.Valliappan for Mr.T.Dheeraj for the first respondent.

13. Mr.K.Vijayaraghvan would draw my attention to the sale deed dated 06.06.2011, a document executed by one Sekar in favour of one Ganesan and the second defendant. He would also draw the attention of this court to the sale agreement executed in favour of the plaintiff by the first defendant. In the second document, he would point out that Ganesan and Kaliappan were the attesting witnesses to the sale agreement and if the applications are allowed, he will be in a position to prove the signatures of the attesting witnesses. He would also rely upon Section 165 of the Indian Evidence Act to plead that the Court always has the power to summon any document or put any question as it pleases during the course of trial. To support this contention, he would rely upon a judgement of this court in Rama Gounder v. Ranu, MANU/TN/0581/1983 : (1984) 97 LW 512. He would state that the Court ought to exercise the provisions under Section 165 together with Order XVI Rule 4 and failure to do so requires interference at the hands of this Court.

14. Per contra, Mr.P.Valliappan would submit that the suit is of the year 2014 and that the plaintiff has effectively dragged the litigation on for more than a decade. He would point out that pending the litigation, the suit was also amended, and thereafter, the plaintiff had examined one Tmt.Manonmani, the wife of Ganesan in order to prove his signatures. Having failed in that attempt, the present interlocutory applications are yet another example of how the litigation is being dragged on.

15. I have carefully considered the arguments on both sides.

16. Insofar as the burden of proof with respect to an agreement of sale is concerned, the issue has been settled by the Judgment of the Supreme Court in Thiruvengadam Pillai v. Navaneethambal and Another, MANU/SC/0942/2008 : 2008:INSC:217 : (2008) 4 SCC 530. In the said judgment, the Supreme Court held that where the plaintiff come to the Court alleging that the defendant had executed an agreement of sale in his favour and the defendant denies the execution of such agreement, then the burden of proof is on the plaintiff to prove the existence of the agreement.

17. If the revisions are allowed and the prayers are granted, the plaintiff will only prove that the signatures are of the attesting witnesses. As per Sections 68 to 71 of the Indian Evidence Act, the proof of the signatures of the attesting witnesses is necessary only when the document is required by law to be so attested. In case, the document does not require attestation, Sections 68 to 71 would be of no avail. This is clear from Section 72 of the Indian Evidence Act.

18. As per Section 72 of the Indian Evidence Act, an attested document, that is not required to be attested, would have to be proved as if it were unattested. An agreement of sale is not a document which requires attestation. Therefore, the proof that would be required as per Section 72 would be dehors the attestation in the said document. If that be the position of law, then by proving the signatures of the attesting witnesses, it does not take the plaintiff anywhere.

19. In fact if the applications had been allowed by the Trial Court, it would merely be a red herring argument on the side of the plaintiff saying that since he had proved the signatures of the attesting witnesses, the Court would have to presume the signatures of the executant. Unfortunately for Mr.K.Vijayaraghavan, the position of law is otherwise.

20. Further the judgment reported in (1984) 97 LW 572 referred to supra also does not come to the rescue of the plaintiff, since it was an observation with respect to Section 165 and Order XVI Rule 4 of the Code of Civil procedure made by the learned Judge in the facts and circumstances of that case.

21. Section 165 is entirely discretionary. It is up to the learned Trial Judge, who has the benefit of seeing the witness, to put those questions. There cannot be a direction to the learned Trial Judge, in exercise of the revisional jurisdiction, to put questions regarding the lis between the parties. Section 165 is to enable the court to clarify any doubt that may arise during the course of trial. It is entirely subjective and not one which is capable of being revised.

22. In light of the above discussion, I do not find any merits in these revisions. Accordingly, this civil revision petitions are dismissed. No costs. Consequently, the connected miscellaneous petitions are closed.