D.R. Rathna Murthy Vs.
Ramappa [2010] INSC 834 (8 October 2010)
Judgment
IN THE SUPREME COURT
OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 6396 OF 2002 D.R. Rathna
Murthy ...
Appellant Versus
Ramappa ...Respondent
Dr. B.S. CHAUHAN, J.
1.
This
appeal has been filed against the judgment and order dated 2nd April, 2002
passed by the High Court of Karnataka at Bangalore in R.S.A No. 446 of 1996,
reversing the judgment of the First Appellate Court dated 10.3.1999, passed in
RFA No.133 of 1995; and restoring the judgment and decree of the trial court
dated 15.11.1995 in O.S. No. 122 of 1992. The trial 1 court had dismissed the
suit of the plaintiff/appellant (hereinafter called the appellant) for specific
performance.
2.
Facts
and circumstances giving rise to this appeal are that the appellant, D.R.
Rathna Murthy, had purchased the land in question vide registered sale deed
dated 23rd April, 1986 from one A.M. Venkatachalapathy Setty for a
consideration of Rs. 10,000/-. On the very next day, the appellant sold the
said land vide registered sale deed dated 24th April, 1986, to the
defendant/respondent (hereinafter called the respondent) for consideration of
Rs.10,000/- only and delivered the possession to him. In pursuance of the said
sale deed dated 24th April, 1986, the respondent is in possession of the suit
land. The appellant subsequently served a legal notice upon the respondent in
the year 1991-1992 demanding the reconveyance of the suit property on the
ground that registered sale deed executed in favour of respondent dated 24th
April, 1986 was a conditional sale deed and appellant had a right to repurchase
the sale land for the same consideration of Rs.10,000/- within a period of ten
years from the date of execution of the sale deed. 2
3.
The
respondent did not make any response to the said legal notice, thus, the
appellant filed Original Suit No. 122 of 1992 before the court of Munsiff and
JMFC Court, Mulbagal, seeking the relief of specific performance. The said Suit
was contested by the respondent contending that there was an absolute sale deed
in his favour and it was not a conditional sale deed, the term of reconveyance
had been fraudulently inserted by the appellant after the execution of the
document. Manipulation had been done at several places in the said sale deed
after the execution and the appellant had put in the word "Avadhi",
which means tenure, just to make the same a conditional sale deed. The trial
court considered the case of both the parties and dismissed the Suit vide judgment
and decree dated 15th November, 1995.
4.
Feeling
aggrieved, the appellant approached the First Appellate Court by filing RFA
No.133/1995, and the appeal was allowed vide judgment and decree dated 10th
March, 1999. The First Appellate Court held that it was a conditional sale
deed, thus, the Court directed the respondent to execute the sale deed in
favour of the appellant. The respondent approached the High Court by filing the
Regular Second 3 Appeal i.e. R.S.A. No. 446 of 1999 under Section 100 of Code
of Civil Procedure, 1908 (hereinafter referred to as `C.P.C.') and the said
appeal has been allowed by the High Court vide judgment and order dated 2nd
April, 2002. Hence, this appeal.
5.
Shri
Naveen R. Nath, learned counsel appearing for the appellant has submitted that
the sale executed by the appellant in favour of the respondent was a
conditional sale deed and thus, he had a right to repurchase the land any time
within a period of ten years from the date of the execution of the sale deed.
The appellant exercised his option within the period prescribed in the
conditional sale deed. The trial court has erred in dismissing the suit,
however, the First Appellate Court after proper appreciation of the entire
evidence on record came to the conclusion that it was a conditional sale deed
and not a case of absolute sale. The High Court ought not to have reversed the
said findings of fact as it is not permissible to appreciate the evidence in
second appeal, and no substantial question of law was involved in the appeal.
The High Court recorded a totally perverse finding that it was a case of
absolute sale. Hence, the appeal deserves to be allowed.
6.
On
the contrary, Shri Girish Anantha Murthy, learned counsel appearing for the
respondent, has vehemently opposed the appeal contending that the sale deed in
favour of respondent was an absolute sale deed and it is not a conditional sale
deed. The word "Avadhi" was inserted in the margin of said deed at
three places and a term of reconveyance within a period of ten years was added
in the same after its execution and prior to registration. Such an insertion of
said word "Avadhi" at three places and the addition of the last
clause providing for reconveyance was without the consent and knowledge of the
respondent; therefore, he cannot be bound by the said terms. In case of
contradictions between the oral evidence of the witnesses of both the sides,
the First Appellate Court should not have re- appreciated the entire evidence
and thus, there was no occasion for the First Appellate Court to reverse the
findings of fact recorded by the trial court. The judgment and order of the
High Court does not require any interference, the appeal lacks merit and,
accordingly, is liable to be dismissed.
7.
We
have considered the rival submissions made by learned counsel for the parties
and perused the record. 5 Undoubtedly, the High Court can interfere with the
findings of fact even in the Second Appeal, provided the findings recorded by
the courts below are found to be perverse i.e. not being based on the evidence
or contrary to the evidence on record or reasoning is based on surmises and
misreading of the evidence on record or where the core issue is not decided.
There is no absolute bar on the re- appreciation of evidence in those
proceedings, however, such a course is permissible in exceptional
circumstances. (Vide Rajappa Hanamantha Ranoji v. Mahadev Channabasappa &
Ors., AIR SC 2000 2108; Hafazat Hussain v. Abdul Majeed & Ors., (2001) 7
SCC 189; and Bharatha Matha & Anr. v. R. Vijaya Renganathan & Ors., JT
2010 (5) SC 534)
8.
The
sale deed dated 24th April, 1986, is a registered document. The document is
admitted by the other side. Most of the contents are also admitted. However, it
is disputed that the word "Avadhi" and last clause have been inserted
subsequent to execution of the document. In such a fact-situation, the
probative value of that part of the document is required to be assessed. It
becomes a case as if the respondent had never intended to have conditional sale
deed. He never intended to enter into a contract to which certain part was not
6 even known to him. The part of the contract as had been inserted after his
signature i.e., after execution of the document cannot be binding upon him. If
such averments are accepted, it becomes a clear cut case of manipulation/fraud
by the appellant. (Vide Dularia Devi v. Janardan Singh & Ors., AIR 1990 SC
1173)
9.
The
appellant has examined himself and two other witnesses as PW.1 to PW.3. The
other persons had been the scribe and attesting witnesses to the document.
Copies of the said sale deed were produced and marked as Ex. P-1 to P-4. The
respondent examined himself as DW-1. Two other witnesses including one
attesting witness were also examined by him in defence. The trial court framed
four issues : 1) Whether plaintiff proves that under sale deed dated 24.4.86 he
has got right to purchase the suit schedule property? 2) Whether plaintiff
further proves that he is entitled for the specific relief of specific
performance of contract? 3) Whether the defendant proves that suit is not
maintainable and not complied with the mandatory 7 provisions required under
Section 16(3) of the Specific Relief Act? 4) To what relief the parties are
entitled?
10.
The
trial court appreciated the evidence of the parties and their witnesses and
came to the conclusion that the word "Avadhi" and the last part of
the sale deed were inserted after the execution of the document making it a
conditional sale deed from absolute sale deed. The trial court while reaching
this conclusion relied upon the deposition of Gopalakrishna (PW.2), the
attesting witness of the sale deed, wherein he had admitted in
cross-examination that there was no clause as to after how many years the suit
land has to be repurchased and the word "Avadhi" was written in the
margin after completion of the document. The last part i.e. Ex. D-2 was added
after the execution of the sale deed i.e. Ex. P-4, thus, it was evident that
the appellant and his scribe inserted the word "Avadhi" in Ex.P-4 and
also inserted the portion Ex.D-2 and it is so evident even to the naked eyes.
In view of the aforesaid findings, the suit was dismissed. The First Appellate
Court had unnecessarily laboured to find fault with the trial court's judgment
and without realising that there was contradiction in the oral testimony of two
marginal witnesses, re-appreciated the entire 8 evidence and reached the
contrary conclusion. The High Court realising that the findings of facts
recorded by the First Appellate Court were perverse, proceeded with
appreciation of evidence and came to the conclusion that the trial court was
right in holding that the word "Avadhi" had been inserted at three
places in the margin and last part of the sale deed Ex.D-2 in Ex.P-4 had been
added subsequent to the execution of the sale deed. The findings so recorded by
the High Court are based on a proper appreciation of evidence and the statutory
provisions applicable in the case. Admittedly, there had been interlineations
in the sale deed.
11.
Section
20 of the Registration Act, 1908 reads as under:
"Documents
containing interlineations, blanks, erasures or alterations.- (1) The
registering officer may in his discretion refuse to accept for registration any
document in which any interlineations, blank, erasure or alteration appears,
unless the persons executing the document attest with their signatures or
initials such interlineations, blank, erasure or alteration.
(2) If the registering
officer registers any such document, he shall, at the time of registering the
same, make a note in the register of such interlineations, blank, erasure or
alteration."
9 It appears that
vide Karnataka Act No. 41 of 1984, Clause 2 of Section 20 has been deleted,
w.e.f. 7th November, 1986, however, corresponding provisions in Karnataka
Registration Rules, 1965 (hereinafter called the Rules), providing for similar
requirement have not been amended. Rule 41 of the said Rules provided
examination of a document by the Registering Officer and made an obligation on
his part that if there are unattested interlineations, alterations, erasures or
blanks, which the Registering Officer considers should be attested, by the
signatures of the executant, he shall not alter the document himself in any
way.
12.
Rule
42 of Rules reads as under:
"Manner of
noting interlineations, etc.- Each important interlineations, erasure or
alteration occurring in a document shall, whenever possible, be caused to be
noted or described at the foot of the document and to be signed by the
executant before the document is accepted for registration....
"
Therefore, Rule 42
mandatorily requires that if there is any interlineation, erasure, alteration
etc., it must be mentioned and described at the foot of the document and must
be duly signed by the executant before the document is accepted for
registration.
13.
In
the instant case, we have, ourselves examined certified copy of the said sale
deed, and found that the provisions of Rule 42 have not been complied with.
Nothing has been endorsed at the foot of the sale deed, nor it bears signatures
of the executant. The word "Avadhi" has been inserted at three places
in the margin of the sale deed. It has not be attested by the executant. The
part Ex. D-2 had been inserted in Ex.P-4 in an unusual manner. The entire sale
deed has been scribed in double space while the part Ex.D-2 is in single space.
It was necessary to do so as the parties had already signed the document. Had
it been written in ordinary course, it could have gone below the signatures of
the parties in the sale deed. Therefore, it is crystal clear that such
insertion had been made to convert the absolute sale deed into a conditional
sale deed. Thus, we are of the view that the trial court and the High Court
have rightly believed the testimony of the respondent that there was no mention
of Ex.D-1 and D-2 in Ex.P-4 and the appellant was not entitled for reconveyance
of the suit property. The manner in which interlineations have been made in the
document itself reveal that addition was made subsequent to the execution of
the document otherwise there was enough space to insert such a clause in the
same manner in which the entire sale had been 1 scribed. This particular
clause had to be squeezed in a small space and to adjust the same before the
signature already made by the appellant. The First Appellate Court committed
grave error in not properly appreciating the evidence of D.R. Rathna Murthy
(PW.1) and Gopalakrishna (PW.2) in this regard, though the Court took note of
the admission made by Gopalakrishna (PW.2), the attestator, that no time was
fixed for reconveyance, thus, the term "Avadhi" was written in
`margin' and also Ex.D-2 was written after Ex.P-4 has completely been written.
14.
D.R.
Rathna Murthy (PW.1) had also admitted that he sold the land to the respondent
as he was in dire need of money to pay to his Vendee. He had himself purchased
the property only one day before i.e. on 23rd April, 1986. We fail to
understand if the appellant was not having money, why did he purchase the
property from his vendor on 23rd April, 1986 and in order to pay him the sale
consideration sold it to the respondent on the very next day i.e. on 24th
April, 1986 for the same amount. There is nothing on record to show as under
what circumstances the sale deed had been executed in favour of the appellant
by his vendor without receiving the sale consideration and how could he be put
in possession. 1
15.
The
First Appellate Court failed to appreciate that there was no shara (noting) in
respect of interlineations in the sale deed. The respondent had deposed as
under:
"At that time
there was no mention in respect of conditional sale deed. In front of sub
registrar nothing was spoken about the conditional sale deed. At the time of
purchase the suit land was fallen land. After purchase I formed the land and
improved its fertility. I spent about 10 to 15,000/- for the improvement of the
land. I grow ragi and ground nut crops. I dig one Well in the suit land. I
spent Rs.20,000/- to dug the Well. Prior to filling of this suit plaintiff did
not approach me with a request to execute sale deed in his favour. No panchayat
was held in respect of the suit lands. Neither witnesses nor scribe intimated
me about the Avadhi transaction in respect of suit lands. At the time of change
of revenue records the plaintiff did not file any objections contending that
the sale is conditional one. I came to know about the Avadhi only after filing
of this suit. I sent reply notice to the plaintiff's legal notice. After sale
the plaintiff is not related to suit land. I have not agreed for re sale of suit
land". Had it been a case of conditional sale, the appellant could have
asked the respondent to wait for mutation or raise the objection before the
Revenue Authorities in spite of the fact that mutation is a revenue entry and
does not refer to the title of the land. Had it been the case of conditional
sale deed enabling the appellant to repurchase the land any time within ten
years, the respondent could not have spent huge 1 amount of his life savings
for improving the land, nor would he have dug a Well in the suit land spending
twenty thousand of rupees. The aforesaid circumstances make it clear that the
respondent had never agreed for reconveyance.
15. The
interlineations had been made at four places in the sale deed. Word
"Avadhi" had been mentioned at three places in the margin of the sale
deed. The appellant did not attest the said word by putting his signatures at
the time of registration. Attestation testifies/certifies the genuineness of
the document. Attestation and execution are different acts, one following the
other. Execution includes delivery and signing of the document in the presence
of the witnesses and also the whole series of acts or formalities which are
necessary to render the document valid. Attestation of sale deed is imperative.
In the instant case, we find that the animus to attestation remain totally
absent. It is settled legal proposition that the document may be admissible but
probative value of the entries contained therein may still be required to be
examined in the fact and circumstances of a particular case. (Vide State of
Bihar & Ors. v. Sri Radha Krishna Singh & Ors., AIR 1983 SC 1984; and
Bharatha Matha & Anr. (Supra). 1
16.
The
case is required to be examined from another angle also. The appellant had
purchased the land for a consideration of Rs.10,000/-. On 23rd April, 1986, he
sold the land on the very next date for a sum of Rs.10,000/- reserving his
right to purchase the land for the same consideration within a period of ten
years. In normal circumstances, the vendor would not agree for reconveyance for
the same consideration for the reason that the value of the land generally goes
upwards and within a period of ten years it could have at least become double.
(See Sardar Jogender Singh v. State of U.P., (2008) 17 SCC 133; and Satish
& Ors. v. State of U.P. & Ors., (2009) 14 SCC 758).
17.
The
aforesaid circumstances make it abundantly clear that the appellant has made
inter-lineations after the document stood executed. The said additions were
made without the consent and knowledge of the respondent. In fact the mind of
the respondent did not actuate with his hand while putting his thumb impression
on the said sale deed at the time of registration. Thus, the additions so made
by the appellant cannot be binding on the respondent. The additions in question
are surrounded by the suspicious circumstances of a grave nature and,
therefore, the same are required to be ignored. The contract being severable,
the terms of contract included by these additions being void, cannot be taken
note of. In view of the above, we find no force in the appeal and it lacks
merit and, is accordingly, dismissed. There shall be no order as to costs.
............................J.
(P. SATHASIVAM)
...........................J.
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