C. M. Thomas v. C. Purushothaman and Sukumaran & Ramakrishnan

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH** **FRIDAY, THE 6TH DAY OF JANUARY 2012/16TH POUSHA 1933** ## **RSA.NO. 862 OF 2011 ( )** **-----------------------------------AS.15/2006 OF SUB COURT, OTTAPPALAM OS.367/2004 OF MUNSIFF COURT, OTTAPPALAM** ## **APPELLANT(S)/DEFENDAANT:** **--------------------------------------------** **C.M.THOMAS,S/O.CHENGANAMOOLAYIL MATHAI, PULAPPATTA AMSOM,UMMANAZHI DESOM, OTTAPALAM TALUK PALAKKAD DISTRICT.** **BY ADV. SRI.P.JAYARAM** ## **RESPONDENT(S)/PLAINTIFF & DEFENDANTS:** **-----------------------------------------------------------------** **1. C.R.PURUSHOTHAMAN,S/O.CHANKOTH RAMACHANDRAN,PULAPPATTA AMSOM & DESOM P.O PULAPPATTA 678 632,OTTAPPALAM TALUK PALAKKAD DISTRICT.** **2. SUKUMARAN,S/O.KEEZHCHEMBIL CHAMI PULAPPATTA AMSOM & DESOM, P.O PULAPPATTA 678 632 OTTAPALAM TALUK, PALAKKAD DISTRICT.** **3. RAMAKRISHNAN,S/O.ANGADIPARAMBIL VELAYUDHAAN,PULAPPATTA AMSOM & DESOM P.O PULAPPATTA 678 632,OTTAPALAM TALUK PALAKKAD DISTRICT.** **R1 BY SRI.SANTHEEP ANKARATH R1 BY SRI.SUMODH MADHAVAN NAIR** **THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 06-01-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **THOMAS P.JOSEPH, J.** **==================================== R.S.A. No.862 of 2011 ==================================== Dated this the 06[th] day of January, 2012** ## **J U D G M E N T** The third defendant in O.S. No.367 of 2004 of the court of learned Munsiff, Ottappalam is aggrieved by the judgment and decree granting specific performance in favour of the first respondent and confirmation of that judgment and decree in A.S. No.15 of 2006 of the court of learned Sub Judge, Ottappalam. 2. First respondent-plaintiff claimed that respondents 2 and 3 executed Ext.A1, agreement for sale in his favour on 08.09.2004 agreeing to sell the property for a consideration of Rs.95,000/- on or before 10.11.2004 and received Rs.5,000/- by way of advance. First respondent claimed that he was always ready and willing to get the sale deed executed but respondents 2 and 3 backed out. Thereon first respondent issued notice to respondents 2 and 3 on 17.09.2004 demanding them to execute the sale deed. Since respondents 2 and 3 did not comply, first respondent filed the suit. Respondents 2 and 3 contended that they have assigned the property to the appellant on 27.09.2004 pursuant to Ext.B1, agreement for sale dated 03.09.2004. In the ## **R.S.A. No.862 of 2011** ## -: 2 :- light of that contention appellant was impleaded as additional third defendant in the suit. Appellant, setting up Ext.B4, assignment deed pursuant to Ext.B1, agreement for sale contended that Ext.A1, agreement was executed subsequent to Ext.B1, agreement and that he is a bona fide purchaser for consideration. Courts below found that Ext.B1, agreement is fabricated, accepted Ext.A1, agreement and granted decree for specific performance. That judgment and decree were confirmed by the learned Sub Judge which are under challenge in this Second Appeal raising by way of substantial questions of law, whether, appellant being a bona fide purchaser, courts below are justified in granting decree for specific performance and whether finding of the first appellate court regarding Ext.A1 and B1 are correct? 3. It is contended by learned counsel for appellant that for the mere reason that respondents 2 and 3 and thereafter appellant denied execution of Ext.A1, agreement, courts below were not justified in granting decree for specific performance. Reliance is placed on the decision in **Aliyas v. Aboobacker** (2006 [4] KLT 282). According to the learned counsel, specific relief is a discretionary relief to be granted by the court having ## **R.S.A. No.862 of 2011** ## -: 3 :- regard to the facts and circumstances. In this case in the light of Ext.B1, agreement dated 03.09.2004 and the subsequent sale of property to the appellant on 27.09.2004 (by Ext.B4) for valid consideration, courts below ought to have exercised the discretion in favour of appellant and respondents 2 and 3. It is contended that due execution of Ext.A1 is not proved. That there was liability towards the bank over the property created by a registered document which is constructive notice to all parties concerned under Section 3 of the Transfer of Property Act (for short, “the Act”) is not made mention in Ext.A1, agreement itself indicates that Ext.A1 is a fraudulent document. 4. On the question whether merely for the reason of denial of execution of document discretionary relief should be denied, the Division Bench in the above cited decision held that denial of execution of agreement does not by itself disentitle a party of the benefit of discretion and that an unsustainable defence cannot be a ground for denial of equitable consideration in all circumstances. But that stands on a different footing from a false plea and fabrication of document to avail a relief based on discretion. In **Sm. Padma Rani Sikdar v. Sm.Karupur Shaw** (AIR 1989 NOC 22 (Cal) the Calcutta High **R.S.A. No.862 of 2011** ## -: 4 :- Court refused to grant discretionary relief to a plaintiff who came with a false plea. This Court in **Simon v. Thitheerumma and Another** (1990 [1] KLJ 587) refused to exercise discretion in favour of a person who came with a false case. A person who is found to have committed forgery in order to raise a plea based on discretion has no equity in his favour. 5. So far as Ext.B1, agreement for sale dated 03.09.2004 allegedly executed by respondents 2 and 3 and the appellant is concerned, courts below held that it is fabricated one. That agreement is dated 03.09.2004 and it came out that the stamp paper for preparation of that document was allegedly purchased by the second respondent from Kollengode when admittedly there were other several stamp vendors nearer to his place of residence from where he could have purchased the stamp paper. The vendor who is said to have sold the stamp paper for preparation of Ext.B1 was summoned and examined as P.W.2. He stated that he had not sold any such stamp paper to the second respondent on 02.09.2004 as endorsed on that document. Exhibit X1 is the register maintained by P.W2 for the period from 15.07.2004 to 08.12.2004 and exhibit X1(a) is the relevant entries made on 02.09.2004 in Ext.X1 (on which day the stamp paper for ## **R.S.A. No.862 of 2011** ## -: 5 :- preparation of Ext.B1 agreement is allegedly sold to the second respondent). Exhibit X1(a) shows that stamp paper bearing number 2819 (seen on stamp paper on which Ext.B1 is prepared) was not sold to the second respondent but to one K.Abbas of Payyalllur and that too, that stamp paper was for the denomination of Rs.20/- and not Rs.50/- as seen from Ext.B1. 6. It was pointed out that Ext.X1 is not the register maintained by P.W.2 since that Register appeared to have been issued to K.P.Nagarajan, Block Officer, Kollengode on 19.07.2004. But it was clarified that registers issued to K.P. Nagarajan and P.W2 interchanged and since P.W2 started making entries in the register he got, he continued with it. Exhibit X1 contained the seal and name of P.W.2 on its cover page. Trial court observed that there was no challenge when P.W.2 was in the box that the entries in Ext.X1 are in his handwriting. Based on Exts.X1 and X1(a) and the evidence of P.W2, courts below held that there was no possibility of the stamp paper made use of for preparation of Ext.B1 being issued in favour of the second respondent on 02.09.2004 by P.W.2. According to the second respondent when examined as D.W.1, himself and third respondent executed Ext.B1, agreement on ## **R.S.A. No.862 of 2011** ## -: 6 :- 03.09.2004 in favour of appellant receiving Rs.10,000/- as advance. Appellant as D.W.2 stated that terms of the agreement were settled on 01.09.2004 and himself and respondents 2 and 3 agreed to execute the agreement on a future day by which time the appellant could raise the sum of Rs.10,000/-, the date for execution of the agreement was not fixed on 02.09.2004, he raised the amount by 03.09.2004 and on the evening of 02.09.2004 he informed respondents 2 and 3 that he will be ready with the money and the agreement could be executed on 03.09.2004. Second respondent as D.W.1 stated that he purchased the stamp paper on 02.09.2004 as directed by the appellant. D.W.2 sated that at the time Ext.B1 was prepared, D.W.3 (one of the attesters) was present but D.W.3 was categoric that he was not present when the document was prepared. It is in the above circumstances that Ext.B1 document was found to be a fabricated document. I do not find reason to interfere with that concurrent finding of fact. 7. So far as execution of Ext.A1 is concerned, evidence was let in by the first respondent as P.W.1. Contention now advanced is that existence of liability to the bank by a registered document is not mentioned in Ext.A1, notwithstanding that there ## **R.S.A. No.862 of 2011** -: 7 :- is constructive notice of the document on account of its registration. I am not inclined to think that on the ground of constructive notice I must impute actual knowledge of existence of liability and that non-mention of that liability in Ext.A1 should lead to the conclusion that Ext.A1, is a false document. Finding of the courts below regarding due execution of Ext.A1, agreement is one of fact based on evidence. Appellant who, the courts below found is a party to fabrication of Ext.B1, agreement to make it appear that he had entered into such an agreement even before Ext.A1, agreement and who purchased the property after Ext.A1, agreement has no equity in his favour and cannot when the forgery is exposed turn round and plead for discretion. I am not impressed that there is any substantial question of law involved in the matter requiring admission of this Second Appeal. Second Appeal is dismissed. All pending Interlocutory Applications will stand dismissed. ## **THOMAS P. JOSEPH, JUDGE.** vsv