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Ramesh Vs. Ratnakar and Ors. - (High Court of Bombay) (10 Apr 2018)

Only because signature of one of parties is missing in a document, it cannot be concluded that such person did not join in execution of instrument

MANU/MH/0632/2018

Property

The question arises in present appeal is, as to whether a registered sale deed which does not bear signature of the vendor at the place where his name is written as the vendor, but bears his signatures in places where corrections are made in the text of the sale deed and it also bears signature on the reverse of the last page along with his thumb impression, acknowledging receipt of balance consideration, before the Registrar, can be said to be a valid sale deed or it has to be discarded only because signature of the vendor is absent at the place where his name is written as the vendor. In instant case, the Trial Court found that, registered sale deed was valid and that the Respondent No. 1 had failed to prove that he had been forcibly dispossessed by the Appellant after 12th February, 1999. Aggrieved by the same, the respondent No. 1 filed Regular Civil Appeal before the Appellate Court. The Appellate Court has reversed the findings of the Trial Court by the impugned judgment and order and it has found that the suit filed by the Respondent No. 1 was within limitation and that the registered sale deed dated 25.01.1999 was to be treated as cancelled. It was declared as null and void. The Appellant was directed to hand over possession of the suit field to the Respondent No. 1 within a period of one month from the date of the judgment and order.

The Hon'ble Supreme Court in the case of Rajendra Pratap Singh vs. Rameshwar Prasad has held in the context of a lease made by a registered instrument that, only because signature of one of the parties is missing in a document, it cannot be concluded that such person did not join in execution of the instrument. The observations made by the Hon'ble Supreme Court in the said judgment, are not limited to a lease deed, but, they are made with reference to execution of registered instruments. It has been laid down that, the question as to whether both parties indeed executed the instrument or not, will be a question of fact to be determined on the basis of evidence. Further, it was observed that, there is no stipulation that the instrument must be signed by both parties. The requirement is that, when the lease is made by a registered instrument, "such instrument shall be executed by both the lessor and lessee."

The Apex Court further laid down that, if the document is required by law to be registered, both parties can be involved in the process without perhaps obtaining the signatures of one of them. In all such instances, the instrument can be said to have been executed by both parties thereto. If the instrument is signed by both parties it is presumptive of the fact that both of them have executed it, of course it is only rebuttable presumption. Similarly, if an instrument is signed by only one party it does not mean that both parties have not executed it together. Whether both parties have executed the instrument will be a question of fact to be determined on evidence if such a determination is warranted from the pleadings of the particular suit. Merely because the document shows only the signature of one of the parties, it is not enough to conclude that the non-signing party has not joined in the execution of the instrument.

Mere absence of signature of Respondent No. 1 at one place in registered sale deed dated 25th January, 1999, cannot become the basis for the Respondent No. 1 to claim that such sale deed was never executed. The aforesaid question of fact regarding execution of the registered sale deed has to be ascertained on the basis of evidence on record. In the present case, the evidence on record is in the form of both attesting witnesses and the scribe appearing before the Court and deposing in favour of execution of the aforesaid registered sale deed by the Respondent No. 1 in favour of the Appellant. There is record of the Registrar's Office and facts have come on record showing that, the Respondent No. 1 is a well educated person and not an illiterate person who was taken for a ride by the Appellant and misled into execution of a document which the Respondent No. 1 never intended to execute.

The Appellate Court has erred in proceeding on the basis that, the Appellant ought to have proved that the signatures and thumb impression on the aforesaid registered sale deed were that of the Respondent No. 1, when it was the Respondent No. 1 who was denying his signatures and thumb impression on the registered document. Being the Plaintiff, the burden was on Respondent No. 1 to prove that, the signature and thumb impression on the sale deed were not his, particularly because it was a registered document. It is also a fact that, the Respondent No. 1 never filed any police complaint in respect of his signatures having been allegedly forged on the registered sale deed, which is also a relevant factor in the present case. The Appellant examined both the attesting witnesses and scribe to prove that, the Respondent No. 1 indeed executed the registered sale deed in the Registrar's Office.

The Appellate Court erred in holding that the respondent No. 1 had proved that he had not executed the registered sale deed dated 25.01.1999 (Exh. 35) and that the same deserved to be cancelled, being null and void. Accordingly, the first substantial question of law framed by this Court is answered in favour of the Appellant and against the Respondent No. 1.

The cause of action to file the suit could not be said to have accrued to the Respondent No. 1 from the date when he published a notice in the newspaper on 31st May, 2001 or the police complaint made on 14th December, 2001. In the plaint or anywhere in the evidence, the Respondent No. 1 has not stated the date on which he was allegedly forcibly dispossessed. Considering the fact that the Respondent No. 1 is a well educated person, being Principal of a Junior College, and the fact that he continued in ownership and possession of the balance portion of land other than the suit property in Survey No. 38, it becomes clear that, the Respondent No. 1 has not clearly demonstrated the point in time when cause of action was triggered for him. Consequently, the material on record shows that, the suit was barred by limitation, which the Appellate Court failed to appreciate. The impugned judgment and order of the Appellate Court is set aside and that of the trial Court is restored and the suit filed by the Respondent No. 1 is dismissed.

Relevant : Rajendra Pratap Singh vs. Rameshwar Prasad

Tags : SALE DEED   EXECUTION   VALIDITY  

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