Smt. Mahananda w/o Subhash Patil & Anr. vs Sharnappa Mallikarjunappa Rajure & Ors.

This appeal is preferred against the judgment and order passed by the learned District Judge, Latur in Regular Civil Appeal No.204 of 1985 dated 02.12.1996. The said appeal was preferred against the judgment and decree passed in Special Civil Suit No. 23 of 1981, dated 08.08.1985, passed by the learned Civil Judge, Senior Division, Latur. The said suit was filed for specific performance of contract. It was dismissed. In the appeal, the said decree was reversed. Therefore the defendant Nos. 2 and 3 have preferred this second appeal. The defendant No.2 is the purchaser of the suit land has preferred this appeal.

This Court formed following 02 substantial questions of law as follows:-

I) If the agreement for sale was entered into on 21.07.1970 and the suit is filed for specific performance in the year 1982, whether plaintiff would be entitled to discretionary relief of specific performance of contract, inspite of lapse of such a long period ?

II) Whether the first appellate court committed manifest error in allowing the appeal and passing the decree for specific performance of contract by reversing the finding of the trial court ?

Learned advocate for the appellants pointed out the reasons and findings of the appellate court and also pointed out the decisive documents, particularly Exh.33, the application moved by defendant No.1 to prove his signature with the admitted signatures on the plaint and other documents. By an order dated 05.11.1984, the said application was decided by holding that the application will be considered after oral evidence of the parties is recorded. He submitted that after recording of oral evidence was over, that application was not considered. He further submitted that after filing of the appeal he also filed civil application bearing No.14888 of 2017 for sending the agreement to sell for hand writing expert. This Court, by order dated 26.10.2018 held that the said application can be considered at the time of final hearing of the appeal.

Learned advocate for the appellants further pointed out that in the written statement the stand is taken by defendant No.1 that forged signature is made on the agreement to sell dated 21.07.1970. He therefore, submitted that the burden lies on the plaintiff to prove that it is genuine signature. However, the defendants did not pray for sending the agreement to sell to the hand writing expert for opinion as to signature. He submitted that the reasons and findings of the learned trial court were legal and correct and no interference was warranted in it. He also pointed out that the reasons and findings of the first appellate court are not convincing and sustainable on facts and law. He prayed to allow the appeal. He relied upon the following authorities:-

Thiruvengada Pillai vs. Navaneethammal and another, AIR 2008 SC 1541, in which it is held that when the execution of an unregistered document relied upon by the plaintiff is denied by the defendant, the burden lies upon the plaintiff, who propounds the document, to prove its execution and genuineness. It is not for the defendant to prove that the document is forged or concocted.

ii) V. N. A. S. Chandran vs. S. Venila and others, Civil appeal Nos. 7825-7828 of 2013, decided on 31.07.2026, in which the Supreme Court held that the Supreme Court reiterated that specific performance is a discretionary and equitable relief. A plaintiff seeking such relief must not only plead but also prove continuous readiness and willingness to perform his part of the contract, including continuous financial capacity to pay the balance consideration. The Court further held that the plaintiff must approach the Court with clean hands. Where the plaintiff takes inconsistent or simultaneously seeking specific performance, and fails to establish continuous financial readiness, the equitable relief of specific performance can be refused. The long lapse of time and the resulting hardship to the vendor were also relevant considerations.

Learned advocate for the appellants submitted that by practicing fraud the alleged agreement to sell at Exh.42 was brought into litigation fraudulently and defendants were compelled to face the litigation for years together since 1981. He therefore prayed to allow this appeal by setting aside the impugned judgment.

Learned advocate for the respondents pointed out the reasons and findings recorded in the impugned judgment and submitted that the learned first appellate Court re-appreciated the evidence in its proper perspective and recorded convincing reasons and legal findings. There is substantive evidence of the witnesses regarding the execution of the agreement to sell at Exh.42 and the signature of defendant No.1 thereon. Exh.42 has been duly proved by the plaintiff and, therefore, the agreement to sell can be said to have been duly executed. He, therefore, submitted that there is no illegality or perversity in the impugned judgment warranting interference by this Court in the second appeal. He further submitted that the evidence of an expert is corroborative in nature and that such experts evidence cannot prevail over substantive evidence of witnesses. He submitted that merely because the defendant had sought comparison of his signatures appearing on the agreement to sell with the admitted signature appearing on the written statement and other documents. When the substantive evidence of the witnesses establishes that he had signed the agreement to sell, the defence that the document is fabricated or that the signature is false cannot be accepted. He submitted that there is no substance in the grounds of objections of the appeal and the arguments of the learned advocate for the appellant. He, therefore, prayed for dismissal of the appeal.

Learned advocate for the respondents is relying upon the judgment in the case of Chennai Jalapathi Reddy vs Baddam Pratapa Reddy (Dead) Through L.Rs. And another, AIROnline 2019 SC 970 in which it is held that Expert evidence, particularly the opinion of a handwriting expert, is a weak type of evidence and is not substantive evidence. The Court must exercise caution while evaluating such evidence. It is generally unsafe to base a finding solely on the opinion of a handwriting expert, and the Court may require independent and reliable corroboration. Mere expert opinion regarding a fact is not conclusive proof of that fact.

Nobody will dispute principles, guidelines and law laid down in all the above precedential laws cited by both sides. It is well settled that facts of the each case are different and always decisive to which law is to be applied. Therefore, each case has to be decided on its facts. However, keeping in mind the principles, guidelines and law laid down in the above precedential laws of both sides, this Court proceeds to re-appreciate the evidence.

Considering the ambit and scope of the second appeal and the substantial questions of law framed by this Court, the crux and decisive aspect of the matter is the defence of defendant No.1 as to whether the alleged agreement to sell is false and fabricated. Defendant No.1 specifically denied his signature on the said document. In such facts and circumstances, the burden lies upon the plaintiff to prove that the signature appearing on the said document is that of defendant No.1. For that purpose, defendant No.1 filed an application at Exh.33 seeking comparison of his disputed signature with his admitted/comparable signatures. However, the said application was not immediately allowed, and the issue was kept open for consideration after the oral evidence was over.

The burden to prove that the signature of defendant No.1 appearing on the agreement to sell at Exh.42 is genuine and that the document bears his signature lies on the plaintiff. The plaintiff, however, did not take recourse to prove the disputed signature by examining a handwriting expert. Thus, the plaintiff failed to discharge the burden of proving the genuineness of the signature of defendant No.1 on agreement to sell, which is a decisive factual aspect of the matter. This material aspect was not properly considered by the learned first appellate Court. On the contrary, the learned trial Court recorded a finding, on consideration of the factual aspects, that the alleged agreement to sell dated 21.07.1997 was improbable. The said finding recorded by the trial Court is based on proper appreciation of the evidence and it is not legally sustainable. Therefore, interference with the same was not warranted. Furthermore, the learned first appellate Court failed to re-appreciate the evidence in its proper perspective and recorded erroneous reasons and findings without properly considering the factual aspect the decisive is the evidence of hand writing expert.

In the suit for specific performance of contract when equitable relief is to be granted, the persons claiming such equitable relief must come before the Court with clean hands. If all these aspects are considered together, the plaintiff failed to prove that the agreement to sell Exh.42 was genuine and legal. In such circumstances the plaintiff is certainly not entitled for relief of specific performance of the contract. The first appellate court committed manifest error in allowing the appeal by decreeing the suit and erroneously reversing the findings in the judgment and decree of the learned trial court. Therefore, substantial questions of law are answered as follows:-

That the plaintiff is not entitled for discretionary relief as the first appellate court has committed manifest error in reversing the finding of the learned trial court.

For the reasons discussed above and the law laid down in the authorities relied upon on behalf of the respondents are not helpful to them and therefore it is not relied upon. The second appel therefore, deserves to be allowed. The impugned judgment and decree deserves to be partly set aside.

Considering the peculiar facts of the case, it would be proper to direct the respondents to pay costs of Rs.10,000/- to the appellants as they are compelled to face this litigation from 1985 i.e. for more than forty years. Hence, the following order:-

I. The second appeal is allowed.

II. The impugned judgment and order dated 02.12.1996, passed by the learned first appellate court in Regular Civil Appeal No. 204 of 1985, is set aside.

III. The judgment and decree dated 08.08.1985 passed by the learned Civil Judge, Senior Division, Latur in Special Civil Suit No. 23 of 1981 is confirmed.

IV. The respondents original plaintiffs to pay costs of Rs.10,000/- to the appellants.

Pending civil applications are also disposed of.