Jamuna Rani v. Balakrishnan

ORDER The Civil Revision Petition is directed against the order passed in I.A.No.2 of 2023 in O.S.No.78 of 2021 dated 14.07.2023 on the file of the District Munsif Court, Paramakudi, dismissing the application to reject the document unders Ex.A.1 from the evidence.

¶2The respondent/plaintiff has filed the above suit claiming the relief of specific performance of the agreement dated 30.06.2000 entered into between the respondent/plaintiff's father and the mother of the first defendant and the revision petitioner/second defendant and for permanent injunction restraining the first defendant and the revision petitioner/second defendant and their men from any manner interfering with the respondent/ plaintiff's peaceful possession and enjoyment of the suit property. The revision petitioner/second defendant has filed a written statement taking a defence that the suit sale agreement has been created by forging the signature of their mother and is a rank forgery.

¶3When the respondent/ plaintiff was examined as P.W.1, he has produced the suit sale agreement dated 30.06.2000 and the same was exhibited as Ex.A.1. The revision petitioner/second defendant has then filed the present application in I.A.No.2 of 2023 under Section 151 C.P.C. seeking orders to reject the document in Ex.A.1 from the evidence as it is not admissible.

¶4The main contention of the revision petitioner/second defendant is that the said document dated 30.06.2000 has been executed, as if it is a sale deed and as such, the said document requires registration under Section 17 of Registration Act and that therefore, the unregistered sale deed cannot be admitted in evidence and as such, the unregistered sale deed already marked as Ex.A.1 is liable to be rejected. The respondent/ plaintiff has filed a counter statement stating that Ex.A.1 is only a sale agreement, that the first defendant and the revision petitioner/second defendant, after receiving the portion of the sale amount, have agreed to receive the balance sale price at the time of registration of the document, that since the revision petitioner/second defendant has taken a plea of forgery, there is every possibility for her to prove through the expert opinion, that the revision petitioner/second defendant, without taking any such steps, has raised objections, which are legally unsustainable and that therefore, the application is liable to be dismissed. The learned District Munsif, after enquiry, has dismissed the application. Aggrieved by the said dismissal order, the present revision came to be filed.

¶5As already pointed out, the respondent/plaintiff has laid the above suit claiming the relief of specific performance alleging that the mother of the first defendant and the revision petitioner/second defendant have executed the suit sale agreement in favour of the respondent/plaintiff's father. It is pertinent to note that according to the respondent/plaintiff, Ex.A.1 is a sale agreement and whereas, according to the revision petitioner/second defendant, it is a sale deed.

¶6As rightly observed by the learned District Munsif, some of the recitals in Ex.A.1 appear that it is a sale agreement and whereas, some other recitals appear that it is a sale deed. At this juncture, it is necessary to refer the above recitals for better appreciation. In the second page of Ex.A.1, the usual recitals found in the sale deed are mentioned and the same are extracted hereunder; "jhq;fs; mbapy; fz;l epyj;ij fpiuak; ngw;W nfhz;lgbahy;

Mz;lhz;L

fhyKk;

FLk;g re;jjpapdh; fpiua ghj;jpakhf Mz;L mDgtk; nra;J nfhs;sTk; mbapy; fz;l epyj;ij jhq;fs; fpiuak; ngw;Wf; nfhz;lgbahy; jq;fs; ngaUf;F gl;lh khWjy; nra;J nfhs;sTk; ehd; ,jd; %yk; rk;kjpf;fpNwd;. NtW tpy;yq;fk; VJkpy;iy vd;Wk; tpy;yq;fk; Vw;gl;lhy; vd; nrhe;j nrytpy; jPh;j;Jf; nfhLg;Ngd; vd;Wk; cWjp $WfpNwd;."

¶7But in the first page, it has been stated, "vdf;F nrhe;jkhdJk; vd; iftrk; mDgtj;jpy; cs;sJkhd mbapy; fz;l epyj;ij ehd; jq;fsplk; nrz;l; 1f;F &.130/- tPjk; nkhj;j nrz;l; 170f;F nkhj;j &.22100/- ,Ugj;jp ,uz;lhapuj;jpE}W kl;Lk; fpiuak; Ngrp ehd; jq;fsplk; ehsJ Njjpapy; ml;thd;]; &.17000/- gjpNdO Mapuk; kl;Lk; ngw;Wf; nfhz;Nld;. kPjp &.5100/-k; Iahapuj;jp E}Wk; jhq;fs; gj;jpuk; gjpT nra;a $g;gpLk; rkak; gj;jpuk; gjpT nra;J nfhLj;J kPjp gzj;ij ngw;Wf; nfhs;s rk;kjpf;fpNwd;."

¶8As rightly contended by the learned counsel appearing for the respondent, the above recitals in the first page would only refer the sale agreement. Moreover, the title to the document has been given as fpiua mf;hpnkz;l; i.e., sale agreement. Even in the first paragraph of the first page, it has been mentioned that it is only the sale agreement executed by Meenambal in favour of Ponnusamy.

¶9The learned counsel appearing for the revision petitioner would submit that before filing the suit, the respondent/plaintiff has attempted for mutation and at that time, he has produced the said document by alleging that it is a sale deed, but since the same was not accepted, he has filed the above suit alleging that Ex.A.1 is a sale agreement.

¶10At this juncture, it is necessary to refer the recent judgment of the Hon'ble Supreme Court in Bharat Sher Singh Kalsia Vs. State of Bihar and another in Crl.A.No.523 of 2024 dated 31.01.2024, wherein, the Hon'ble Apex Court has held that if there is a repugnant between the earlier and later clauses of a deed, whereby a later clause destroys altogether the obligation created by the earlier clause, then the later clause is to be rejected as repugnant to the earlier clause and the earlier clause prevails and the relevant passage is extracted hereunder; "30. ..... That apart, we are mindful that even if we had perceived a conflict between Clauses 3 and 11, on the one hand, and Clause 15 on the other, we would have to conclude that Clauses 3 and 11 would prevail over Clause 15 as when the same cannot be reconciled, the earlier clause(s) would prevail over the later clause(s), when construing a Deed or a Contract. Reference for such proposition is traceable to Forbes v Git, [1922] 1 AC 2564, as approvingly taken note of by a 3-Judge Bench of this Court in Radha Sundar Dutta v Mohd. Jahadur Rahim, AIR 1959 SC 24. However, we have been able, as noted above, to reconcile the three clauses in the current scenario."

¶11Applying the above legal dictum, the earlier recital referring to the sale agreement has to prevail over the later clause which refers to the sale deed. As rightly contended by the learned counsel appearing for the respondent, the respondent/plaintiff, by alleging that Ex.A.1 is a sale agreement, has laid the suit for specific performance and never attempted to use the said document as a sale deed.

¶12On Considering the above facts and circumstances, the impugned order, dismissing the application seeking orders to reject Ex.A.1 from the evidence, cannot be found fault with. Since the defendants have taken a defence of forgery, it is always open for the defendants to prove their defence. Hence, this Court concludes that the revision is devoid of merit and the same is liable to be dismissed.

¶13In the result, this Civil Revision Petition is dismissed and the impugned order passed in I.A.No.2 of 2023 in O.S.No.78 of 2021, dated

14.07.2023 on the file of the District Munsif Court, Paramakudi, stands confirmed. The learned District Munsif, Paramakudi, is directed to proceed with the trial in O.S.No.78 of 2021 and dispose of the same uninfluenced by any of the observation made in the present order. Consequently, connected Miscellaneous Petition is closed. No costs.

09.02.2024 NCC :yes/No Index :yes/No Internet:yes/No csm To

¶1The District Munsif Court, Paramakudi.

2.The Section Officer, VR Section, Madurai Bench of Madras High Court, Madurai. C.R.P.(MD)No.2241oofo2023 oK.MURALIoSHANKARoo,Jo. csm Pre-DeliveryoOrderomadeoin C.R.P.(MD)No.2241oofo2023 and C.M.P.(MD)No.11512oofo2023 Datedo:o09.02.2024

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT Reserved on : 28.11.2023 Pronounced on : 09.02.2024 CORAM: THE HON'BLE MR.JUSTICE K.MURALI SHANKAR and C.M.P.(MD)No.11512 of 2023 Jamuna Rani ... Petitioner/ Petitioner/ 2nd Defendant Vs. Balakrishnan ... Respondent/ Respondent/ Plaintiff Prayer : This Civil Revision Petition filed under Article 227 of Constitution of India, to set aside the fair and decreetal order dated 14.07.2023 made in I.A.No.2 of 2023 in O.S.No.78 of 2021 on the file of the District Munsif Court, Paramakudi and allow the above civil revision petition. For Petitioner : Mr.D.Senthil For Respondent : Mr.T.Lenin Kumar