REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 6396 OF 2002

D.R. Rathna Murthy                        … Appellant

Versus

Ramappa                 …Respondent  

J U D G M E N T

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  

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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.   

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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  

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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.

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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.   

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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  

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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  

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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  

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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.”

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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.   

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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  

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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.  

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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  

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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).   

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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  

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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. (Dr. B.S. CHAUHAN)

New Delhi, October 8, 2010

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