SANTHOSH Vs. NARAYANI

JUDGEMENT

(1.) In a suit for specific performance of contract for sale, an application I.A.No.881/1998 was submitted for amending the plaint for incorporating an alternative relief of return of the advance amount. But it was dismissed by the trial court on the sole reason of delay. Subsequently the suit was dismissed on merits, against which the plaintiff came up in appeal.

(2.) Ext.A1 is the agreement for sale dtd. 14/7/1994 executed between the plaintiff and one Govindan, the predecessor-in-interest of the defendant. He passed away before the expiry of the period of the agreement. After the issuance of demand notice to some of the legal heirs, a suit was filed for specific performance of the contract. The trial court on consideration of oral evidence of PW2 and the discrepancies therein found that Ext.A1 agreement is not genuine and dismissed the suit. It is under challenge on the reason that the discrepancy in the oral evidence of PW2 regarding the number of thumb impressions affixed in Ext.A1 is quite natural as he was examined after the expiry of more than four years from the date of execution of Ext.A1. Further, the evidence adduced by the two attesting witnesses was rejected without going into its reliability or credibility on the simple reason that, their full address was not disclosed in Ext.A1 document. The fact that PW2 could not recollect the exact number of thumb impressions affixed by the executant when he was examined after the expiry of four years is only minor abrasion and cannot be termed as a material discrepancy. There is total failure on the part of the trial court to appreciate the oral evidence tendered by PW2 with the attending circumstance, such as he was examined after the expiry of four years from the date of execution of the document, he was actively practicing as an Advocate for a long period of forty one years and also during the abovesaid period of four years. It may not be humanly possible to recollect the number of signatures or thumb impressions, which were affixed on a document four years back by a testator either by the attesting witness or by the scribe, who had witnessed the execution, especially an Advocate by profession. What is material is whether his oral evidence was impeached as enumerated under Sec. 155 of the Evidence Act or whether he is an interested witness. While analysing and appreciating the oral testimony of a witness, it is incumbent upon the court to ascertain whether there is any ground available as enumerated under Sec. 155 of the Evidence Act to discredit or impeach the credence of the witness. Minor discrepancies, unless constitute a material deviation to the fact to be proved, cannot be termed relevant so as to outweigh the oral evidence tendered, especially when it is probable by lapse of long time. The cognitive faculty of the witness may also have some relevance and it should be tested with the time factor involved in the case. It is not permissible to pick and choose minor discrepancies so as to outweigh the oral evidence tendered especially when the witness was examined after the expiry of four years. Hence,there is no justification for rejection of the oral evidence of PW2 by the trial court.

(3.) The trial court also went wrong in accepting the comparison and opinion given by PW2 with respect to difference in the disputed signatures found affixed in Ext.A1 document as that of the executant. During the cross examination, PW2 had admitted that there is some difference in the signatures affixed by the executant in page Nos.1 and 2. But the fact that the executant had also affixed his thumb impression in page No.1 and 2 besides his signature was overlooked by the trial court and proceeded on the premise that PW2 had admitted difference between the disputed signatures found affixed in Ext.A1. PW2 is neither an executant nor a party to the suit. He is only one of the witnesses to the execution and his admission that there are some differences in the signature affixed as that of the executant will not carry any consequences known to the law. It is not upto the witness who had witnessed the execution to depose about the differences in the signatures or similarity or dissimilarity and no such authority can be given under any of the statute to such a witness either to compare or give his opinion in that behalf, except by an expert witness, who was summoned for the said purpose. Hence, the oral evidence tendered by PW2 that there are some differences in the signature found affixed in the document as that of the executant has no much relevance and it cannot be used either to discredit or to reject the oral evidence tendered by the said witness regarding the due execution.