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PETITIONER: SMT. ANNAPOORANI AMMAL

       Vs.

RESPONDENT: G. THANGAPALAM

DATE OF JUDGMENT01/05/1989

BENCH: OZA, G.L. (J) BENCH: OZA, G.L. (J) SHETTY, K.J. (J)

CITATION:  1989 SCR  (2) 833        1989 SCC  (3) 287  JT 1989  Supl.    164    1989 SCALE  (1)1417

ACT:     Code  of  Civil  Procedure   1908:  Section    100--High Court-Jurisdiction to interfere only when substantial  ques- tion of law involved.     Specific Relief Act, 1963: Section 5--Specific  perform- ance--Can  be  decreed only against  executant  of  contract having right to dispose of property.

HEADNOTE:     The  appellant purchased the suit property by  a  regis- tered  sale deed dated 27th December, 1950 for a  considera- tion  of  Rs.7,000.  On 1st January,  1951,  the  respondent executed  a  rent agreement in favour of the  appellant  ac- knowledging her as landlady at Rs.80 per month.     The  mother of the appellant died in 1963. In 1974,  the respondent filed a suit against the appellant for conveyance of  the suit property in his favour on the basis of  a  ’ya- dast’,  alleged  to have been written by the mother  of  the appellant on 24th December, 1950 in his favour providing for conveyance  of the property in his favour after .paying  the sale  price  of Rs.7,000 and Rs.1,000 for  registration  ex- penses.  This ’yadast’ was however neither  stamped,  regis- tered,  nor attested. It was marked as Ex. A-11.  The  Trial Court decreed the respondent’s suit relying on the ’yadast’.     On  appeal the Additional District Judge after  detailed examination  of all the facts involved in the case  and  the evidence of the parties, came to the finding that the appel- lant acquired title to the property on the basis of the sale deed which was a registered document in her favour and  that the  suit property was leased out to the respondent under  a rent agreement, and that as the mother of the appellant  was not  a party to the sale deed she had no right  to  agree\to convey  the  property or to ask her daughter to  convey  the same  in favour of the respondent. He also came to the  con- clusion  that  the Yadast was not a genuine document  but  a forged  one  which was just got up for the purposes  of  the suit.  He accordingly allowed the appeal, and held that  the suit  for specific performance was further barred as it  was filed more than 20 years after the alleged ’Yadast’. 834     The High Court in Second Appeal, however interfered with the findings of fact arrived at by the lower Appellate Court

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solely  on the basis that the evidence of the scribe of  the ’Yadast’ was not discussed by the lower appellate Court, and accordingly allowed the Second Appeal.     In  the  Special Leave Petition to this  Court,  it  was contended  on  behalf  of the appellant that  the  suit  for specific  performance of the contract could only be  decreed against the executant of the contract provided the executant had a right to dispose of the property about which the  suit was  filed,  and that there was no question of  law  on  the basis  of which the High Court exercised jurisdiction  under Section  100  C .P.C. and interfered with  the  findings  of fact. Allowing the appeal, this Court     HELD:  1. Section 100 C.P.C. clearly indicates that  the High  Court  had the jurisdiction to interfere only  when  a substantial question of law is involved and even then it  is expected  that such a question shall be so  framed  although the  court  is  not bound by that question  as  the  proviso indicates. There may be some other substantial questions  of law  which  may need decision and which can be  so  decided. [838G-H]     In the instant case, the Single Judge of the High  Court has chosen to interfere with the findings of fact solely  on the basis of one ground, that the evidence of the scribe  of the  ’Yadast’ PW 2 was not discussed by the lower  appellate court,  and  its failure has affected the  validity  of  the finding rendered by it. This was no substantial question  of law,  much  less a question of law on which the  High  Court could  interfere  with  the findings of fact.  At  best  the questions  on which the High Court chose to interfere  could be said to be questions of appreciation of evidence.  [837H; 839F]     2.  The  suit for specific performance of  the  contract could only be decreed against the executant of the  contract provided the executant had a right to dispose of the proper- ty about which the suit is filed. [836H; 837A]     In the instant case, admittedly the mother of the appel- lant who, was alleged to have executed the ’Yadast’ was  not the owner of the property. Both the parties to the  ’Yadast’ were strangers to the sale deed, and the sale deed does  not refer  to any one of them nor there is anything in the  sale deed to indicate that it was not an out and out sale. [837D] 835

JUDGMENT:     CIVIL  APPELLATE JURISDICTION: Civil-Appeal No. 2635  of 1989.     From the judgment and order dated 3.11.82 of the  Madras High Court in Second Appeal No. 2136 of 1979. J. Ramamurti, R. Vagai and K.K. Mani for the appellant.     S.  Padmanabhan,  Mrs. Anjani and K. Ramkumar,  for  the respondent. The judgment of the Court was delivered by OZA,  J. Leave granted. Heard learned counsel for  the  par- ties.     Facts necessary for this appeal are, that the petitioner appellant-original defendant purchased the suit property  by registered  sale deed dated 27.12.1950 executed by  Asirvada Nadar,  Ponnammal  and Devadasan in favour  of  the  present petitioner  appellant  for a consideration of  Rs.7,000.  On 4.1.1951 the present respondent executed a rent agreement in favour of the present appellant for the building acknowledg- ing her as her landlady @ Rs.80 per month.

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   In  1963  the mother of the appellant by name  of  Rama- lakshmi  Ammal died. In 1974 the respondent filed  the  suit from  which  the present appeal arises viz. Suit No.  79  of 1974 against the petitioner appellant for conveyance of  the property  of the petitioner in favour of the  respondent  on the  ground of a ’Yadast’ which was for the first time  pro- duced  with the suit and is alleged to have been written  by the mother of the petitioner on 24.12. 1950 which is  marked as  Ex.  A- 11, in favour of the respondent.  This  document provided that respondent could get conveyance of the proper- ty  in  the suit from the petitioner after paying  the  sale price  of Rs.7,000 and Rs. 1,000 for registration  expenses. This ’Yadast’ (so-called agreement) was on a plain piece  of paper which is neither stamped nor registered nor  attested. It  is also significant that although this document  is  al- leged to have been written on 24.12.50 even before the  sale ’deed  of the property itself was executed in favour of  the appellant  but this document was not even mentioned  in  the notice  which  was served by the respondent on  the  present appellant  before this suit nor there is any reference  any- where  in any earlier correspondence nor there is a  mention of  this  document in the sale deed dated  27.12.1950  which apparently  is of a date subsequent to 24.12.1950 nor  there is any mention of it in the rent 836 agreement  dated  4.1.1951 to which the  present  respondent himself is a party.     By judgment dated 8.11.1978 the trial court (Sub  Judge) relying  on  this  ’Yadast’ decreed the suit  filed  by  the respondent.     On  appeal the Additional District Judge after  detailed examination of all the facts and evidence came to the  find- ings  of fact that the present petitioner acquired title  to the property on the basis of the sale deed which is a regis- tered  document in her favour and this property  was  leased out  to the respondent under a rent agreement. It also  held that as the mother of the petitioner was not a party to  the sale  deed she had no right to agree to convey the  property or to ask the daughter to convey the suit property in favour of the respondent.     The  plaintiff  respondent was not a party to  the  sale deed (transferor) but is only a stranger who became a tenant under the rent agreement. 1n fact the sale deed was executed by  some other person and therefore this ’Yadast’ could  not be  said  to  be an agreement to reconvey  the  property  as apparently  both the parties to the ’Yadast’ one making  the commitment  to  reconvey  and another in  whose  favour  the commitment  is made, are not parties at all to the  original transaction  of sale. The learned Additional District  Judge also  came  to  the conclusion that this  document  was  not genuine  and is a forged document which is invalid  and  was just  got up for the purposes of this suit and it  has  seen the light of the day for the first time after 23 years after the date on which it purports to have been executed and  for all  these  23  years it was never  referred  to  also.  The learned appellate Court also felt that the suit for specific performance  was barred as it was filed more than  20  years after the alleged ’Yadast’ (agreement.)     The learned Judge of the High Court in second appeal  by the  impugned judgment interfered with the finding  of  fact arrived at by the lower appellate court which was the  final court  of facts and went on at length to reassess  the  evi- dence and not only to reassess but unfortunately the circum- stances  have even been imagined to suggest  the  connection between the ’Yadast’ and the sale deed when in fact there is

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no  mention  of this kind of document in the sale  deed  al- though it bears a date even earlier to the sale deed and  it is on this ground that the special leave petition is filed.     The learned counsel appearing for the appellant contend- ed  that the suit for specific performance of  the  contract could only be decreed 837 against the executant of the contract provided the executant had a right to dispose of the property about which the  suit is  filed. Admittedly the mother .of the  present  appellant who  is  alleged to have executed the ’Yadast’  is  not  the owner of the property and the sale deed is in favour of  the present appellant does not disclose that the present  appel- lant  purchased the property either as Benami on  behalf  of the mother or as a nominee of the mother. It appears  there- fore  that a theory of some loan and repayment was  invented but  the  learned Judge of the High Court failed  to  notice that  even  if this agreement was genuine it could  only  be enforced  against the executant and not against the  present appellant.     In  fact  the theory of loan which was suggested  and  a case was sought to be made out that the sale deed was not an out  and out sale but only as a guarantee for the  loan  and therefore  this  ’Yadast’  was in substance  a  document  of reconveyance. The learned Judge of the High Court failed  to notice  that the respondent is not the person  who  executed the  sale deed in favour of the appellant. In fact both  the parties  to the ’Yadast’ are strangers to the sale deed  and the sale deed does not refer to any one of them nor there is anything in the sale deed to indicate that it was not an out and out sale.     Unfortunately,  the learned Judge of the High Court  has not  even  discussed the reasons on the basis of  which  the learned first appellate court had come to a finding of  fact that this document is a forgery and could not be said to  be a genuine document.     The  learned first appellate court came to this  conclu- sion  on the basis.of the circumstances which could  not  be denied--although this document bears a date earlier than the sale  deed  and the rent agreement to which  the  respondent himself is a party but there is no mention of this  document in  anyone  of those two documents. There  is  no  reference about  this document for all these years i.e. from  1950  to 1974  even  in the suit notice. It is  also  a  circumstance relied  on by the lower appellate court that it is on  ordi- nary  piece of paper not a stamped paper. It is  not  regis- tered  and it is not attested and in view of  these  circum- stances and especially of the fact that during the  lifetime of   Ramalakshmi  Ammal,  mother who is alleged  to  be  the executant this document did not see the light of the day nor was  referred to at any stage. The learned  lower  appellate court came to a finding of fact and the High Court  unfortu- nately  has not given reasons as to why these  circumstances should  not be considered. The learned Judge has  chosen  to interfere  with the findings of fact solely on the basis  of one ground 838 that  the evidence of the scribe of this  document  ’Yadast’ was  not  discussed  by the lower appellate  court  but  the evidence of the scribe who has chosen to write such a  docu- ment  is  worthless and the learned  lower  appellate  court therefore was fight in not relying on this evidence. Section  100  of  the Code of Civil  Procedure  provides  as under: "Second appeal: (1) Save as otherwise expressly provided  in

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the body of this Code or by any other law for the time being in  force, an appeal shall lie to the High Court from  every decree passed in appeal by any Court subordinate to the High Court, if the High court is satisfied that the case involves a substantial question of law. (2)  An appeal may lie under this section from an  appellate decree passed ex parte. (3)  In  an  appeal under this section,  the  memorandum  of appeal shall precisely state the substantial question of law involved in the appeal. (4)  Where  the High Court is satisfied that  a  substantial question of law is involved in any case, it shall  formulate that question. (5) The appeal shall be heard on the question so  formulated and  the respondent shall, at the hearing of the appeal,  be allowed  to argue that the case does not involve such  ques- tion:           Provided that nothing in this sub section shall be deemed  to  take away or abridge the power of the  court  to hear,  for reasons to be recorded, the appeal on  any  other substantial question of law, not formulated by it, if it  is satisfied that the case involves such question" A  perusal of this Section clearly indicates that  the  High Court had the jurisdiction to interfere only when a substan- tial question of law is involved and even then it is expect- ed  that  such a question shall be so  framed  although  the court  is  not bound by that question as the  proviso  indi- cates. There may be some other substantial questions of  law which may need decision and which can be so decided. 839     After  going through the judgment of the High  Court  in this appeal we find that there is no substantial question of law  and much less a question of law on the basis  of  which the  learned Judge exercised jurisdiction under Section  100 and interfered with the findings of fact.     The  only  reason on the basis of which the  High  Court exercised  jurisdiction under Section 100 is what  has  been said by the learned Judge himself: "As already stated, its failure to consider the evidence  of P.W.  2  as well as its wrong surmise that Ex.  B-16  series contained the signatures of Ramalakshmi Ammal, has  affected the validity of the finding rendered by it."     It is well known that P.W. 2 is the scribe of a document which  has  been found to be forged by the  lower  appellate court  and  therefore a person who can go to the  extent  of manufacturing  a document to suit one of the parties to  the litigation,  in our opinion, cannot be said to be  an  inde- pendent  witness and the lower appellate court was right  in discarding his testimony. Unfortunately the High Court  felt that he was an independent witness.     The  learned Judge felt that the signatures on Ex.  B-16 of  Ramalakshmi Ammal is a mere surmise but  this  inference itself  appears to be nothing but imagination as the  signa- tures  prove  the receipt by Ramalakshmi Ammal of  a  notice from Tuticorin Municipality for the collection of house tax.     This  all  in  the opinion of the learned  Judge  was  a substantial  question of law which called  for  interference and  it is clear that on such questions which have  no  sub- stance  and which could not be said to be even  question  of law,  the  interference by the High Court in  second  appeal could  not be justified. At best the two questions on  which the High Court chose to interfere quoted above could be said to be questions of appreciation of evidence.     In our opinion therefore the High Court was not fight in interfering  with  the findings of fact arrived  at  by  the

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learned  lower  appellate  court. The  appeal  is  therefore allowed,  the  judgment of the High Court is set  aside  and that  passed by the lower appellate court is  restored.  The appellant  shall be entitled to costs of this appeal.  Costs quantified at Rs.3,000. N.V.K.                                Appeal allowed. 840