VELLAYYAPPA PADAYACHI Vs. SAMINATHA ASARI

JUDGEMENT

(1.) THE suit is for specific performance filed "by the first respondent herein against the second respondent on the basis of the agreement dated 14.11.1980 agreeing to sell the suit property, belonging to the first respondent. THE second respondent claims to be the prior agreement holder in whose favour the first respondent executed a sale deed after the suit agreement. THE appellant is the third defendant, who had purchased the suit property, pending suit. THE consideration under the agreement dated 14.11.1980 was a sum of Rs.3,200 and Rs.2,000 was paid on that date. Two weeks later on 28.11.1980 another sum of Rs. 1,000 was paid and the balance was only a sum of Rs.200. As per the agreement time was four months" for execution of the sale deed. Though the first respondent requested the second respondent to execute the sale deed in the first week of December the second respondent said that he was pre-occupied with certain duties and promised to execute the sale deed. Subsequently, he did not comply with the request. THE first respondent came to know that the second respondent was trying to fraudulently dispose of the property by executing the sale deed in favour of the third respondent, and therefore, the first respondent's son appeared before the Sub-Registrar, Mangalampettai on the date when the sale-deed was registered in favour of the third respondent. But the Registrar passed the order Ex-A3 that he had no power to refuse registration and that the first respondent's remedy was to approach the Court for appropriate relief. Though the first respondent has always been ready and willing to perform the terms of the agreement the second and. third respondent were determined to defeat his rights and therefore the suit was filed. Pending suit the third respondent sold the property to the appellant who was impleaded as the third defendant.

(2.) THE second respondent filed his written statement as follows: THEre was no suit notice. THE suit agreement is false and it has been concocted by the first respondent with the help of people who are known to him and that there was enmity between him and the first respondent and therefore, he had created the suit agreement to prevent him from selling the property to third persons. It was also stated that after the sale deed in favour of the third respondent, the third respondent had sold the property to one Nataraja Padayachi for a sum of Rs.8,500 and that the said Nataraja Padayachi was a necessary party in the suit.

(3.) NOW, I have compared the signature made by the second respondent in all the documents that are accepted by him and the alleged signatures in Exs-Al and A2. No doubt as pointed out by Mr. S.V. Jayaraman, learned senior counsel for the respondent, even in the accepted signatures there are many differences. But the signatures in Ex-A1 and A2 an totally different from that in Ex-B5. The reason for this can be either, one, the person who signed Exs. A1 and A2 is not the second respondent nor was he familiar with the second respondent's signature and only the name was written out in Exs-Al and A2 or two, the second respondent deliberately signed his name in a totally different fashion from his normal signature to defraud the first respondent. Which of these two is the real reason" Can it be found from the conduct of the parties" If it is more probable that Ex-Al came about in the circumstances set out by the first respondent then we have to take it that the second respondent had deliberately disguised the signature. On the other hand, if the evidence shows that the case of the second respondent that there was no such agreement is more probable then a stranger has signed Ex-Al, and such an agreement cannot form the basis of the suit for specific performance.