Dr. K.G. Viswanatha Pillai v. Radhamani Ammal

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** # **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **&** **THE HONOURABLE MRS. JUSTICE C.S. SUDHA FRIDAY, THE 11[TH] DAY OF FEBRUARY 2022 / 22ND MAGHA, 1943 RFA NO. 107 OF 2014** **AGAINST THE JUDGMENT AND DECREE IN OS 155/2010 DATED 29.11.2013 OF SUB COURT / COMMERCIAL COURT, PATHANAMTHITTA** ## **APPELLANT/DEFENDANT:** **DR.K.G.VISWANATHA PILLAI AGED 66 YEARS S/O LATE GOPALA PILLAI, RESIDING AT RISHI VALLEY, JUDGES ROAD, KARAMANA, THIRUVANANTHAPURAM BY ADVS. SRI.P.GOPALAKRISHNAN NAIR SRI.A.ABDUL KHARIM SRI.M.SREEKUMAR** ## **RESPONDENT/PLAINTIFF:** **SMT.RADHAMANI AMMAL AGED 69 YEARS W/O.LATE V.K.GOPINATHA PILLAI, KIZHAKKE KORUKATTU HOUSE, KOCHENCHERRY MURI,KOZHENCHERRY VILLAGE, KOZHENCHERRY TALUK, PATHANAMTHITTA DISTRICT - 689 641. BY ADVS. SRI D KISHORE (MEDIATOR) SRI.BIJI MATHEW SRI.R.PARTHASARATHY SRI.AJITH VISWANATHAN SRI.P.VISWANATHAN (SR.)** **THIS REGULAR FIRST APPEAL HAVING COME UP FOR ADMISSION ON 11.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 R.F.A. No.107 of 2014 ## **P.B.SURESH KUMAR & C.S.SUDHA, JJ.** **-----------------------------------------------** **R.F.A No.107 of 2014** **----------------------------------------------Dated this the 11[th] day of February, 2022** ## **JUDGMENT** ## **P.B.Suresh Kumar, J.** The defendant in a suit for specific performance of a contract for sale of an item of immovable property is the appellant. 2. The plaintiff is the elder sister of the defendant. There was a partition in the family of the parties on 24.04.1976, in terms of which the plaint schedule property measuring 54 cents, wherein the family house as also the family temple are situated, was allotted to the share of the defendant. The defendant was not residing in the family house in the plaint schedule property before or after the partition. Instead, the plaintiff was residing in the family house all throughout, except 3 R.F.A. No.107 of 2014 for a short period after her marriage. The family temple in the plaint schedule property was also being looked after by the plaintiff. The defendant was enjoying credit facilities from Bharath Overseas Bank, Thiruvananthapuram in connection with the business carried on by him, and the plaint schedule property as also a property held by the husband of the plaintiff V.K.Gopinath Pillai were mortgaged for securing repayment of the credit facilities of the defendant. During 2003, the operation of credit facilities of the defendant became irregular and the bank initiated proceedings for realisation of the amounts due by proceeding against the mortgaged properties. According to the plaintiff, since the defendant was not in a position to liquidate the liability at the relevant point of time, with a view to protect the family temple as also the family house where the plaintiff was residing, at the mediation of other members in the family, the plaintiff agreed to pay to the defendant a sum of Rs.46 lakhs for liquidating his liabilities, and the defendant, in turn agreed to transfer by way of sale, the plaint schedule property to the plaintiff. It is alleged by the plaintiff that accordingly, she 4 R.F.A. No.107 of 2014 raised the said amount by way of loans from the close family members and friends and paid to the defendant on 22.02.2005 on the understanding that the defendant would, in turn, transfer the plaint schedule property to her by way of sale within a period of 5 years. It is stated by the plaintiff in the plaint that a longer period of time was fixed for transfer of the plaint schedule property in order to enable the defendant to settle other liabilities incurred by him showing the plaint schedule property as his asset. It is also stated by the plaintiff in the plaint that the defendant, however, agreed to receive back the title deed of the plaint schedule property from the bank and entrust the same with the plaintiff. It is also alleged by the plaintiff that an agreement was executed between the parties on 22.02.2005 incorporating the arrangement entered into by them. It is alleged by the plaintiff that though the defendant received back the title deed of the plaint schedule property from the bank and entrusted the same with the plaintiff, he was not transferring the plaint schedule property despite specific demands, and the suit was instituted, in the circumstances, for R.F.A. No.107 of 2014 5 specific performance of the contract. The title deed of the plaint schedule property entrusted by the defendant as also the agreement for sale dated 22.02.2005 were produced by the plaintiff along with the plaint. 3. The defendant contested the suit by filing a written statement contending, among others, that he has neither received the sum of Rs.46 lakhs mentioned in the plaint nor agreed to transfer the plaint schedule property to the plaintiff. The defendant has also denied the execution of the agreement for sale dated 22.02.2005 and contended that the same is one prepared using one signed blank stamp paper entrusted by him to his elder brother K.G.Sasidharan Pillai for a purpose relating to the temple in the plaint schedule property. The stand taken by the defendant in the written statement as regards the entrustment of the title deed of the plaint schedule property is that the original of the title deed was held by his brother K.G.Sasidharan Pillai. 4. The plaintiff gave evidence as PW1. Seven other witnesses were also examined on the side of the plaintiff 6 R.F.A. No.107 of 2014 as PWs.2 to 8. 18 documents were proved on the side of the plaintiff as Exts.A1 to A18. The defendant gave evidence as DW1. No documentary evidence was let in by the defendant. 5. Among the witnesses examined on the side of the plaintiff, PW3 is the brother of the plaintiff and the defendant K.G.Sasidharan Pillai who is stated to have given to the plaintiff a sum of Rs.25 lakhs for the purpose of purchasing the plaint schedule property and PW4 is a neighbour and family friend of the plaintiff who is stated to have given a sum of Rs.5 lakhs to the plaintiff for the said purpose. PW5 is a nephew of the plaintiff who is stated to have given a sum of Rs.5 lakhs. PW6 who is a former President of the concerned Panchayat and a businessman who is stated to have given a sum of Rs.5 lakhs. PW7 is brother-in-law of the son of the plaintiff who is stated to have given a sum of Rs.5 lakhs. Among the documents proved on the side of the plaintiff, Ext.A1 is the title deed of the plaint schedule property, Exts.A4 to A6 are the demand notices issued by the Bank to the defendant and the husband of the plaintiff in connection with the credit facilities availed by the defendant, R.F.A. No.107 of 2014 7 Ext.A7 is the agreement for sale dated 22.02.2005, Ext.A8 is a document executed by the daughter-in-law of PW3 and Ext.A10 is a document executed by the husband of the plaintiff. 6. The court below found that Ext.A7 is a genuine document and no circumstances have been established by the defendant to decline the decree of specific performance sought by the plaintiff. The court, however, found that the plaintiff has to compensate the defendant for escalation of the price of the property involved which the court fixed at 10% of the sale price namely Rs.4,60,000/-. Accordingly, a decree was passed directing the plaintiff to pay a sum of Rs.4,60,000/- to the defendant, and directing the defendant to transfer the plaint schedule property by way of sale to the plaintiff. It was also directed that on the failure of the defendant in transfering the property after receiving the additional amount directed to be paid, the plaintiff would be free to deposit the balance sale price in court and seek execution of the transfer deed through the process of the court. The plaintiff was also granted a decree for the cost of the suit. The defendant is aggrieved by the 8 R.F.A. No.107 of 2014 decision of the court below and hence this appeal. 7. Heard the learned counsel for the defendant as also the learned counsel for the plaintiff. 8. The learned counsel for the defendant contended that the plaintiff has neither established the payment of Rs.46 lakhs to the defendant nor the execution of Ext.A7, the alleged agreement for sale. The learned counsel elaborated the said contention pointing out that Ext.A7 is the only document relied on by the plaintiff to prove the payment of Rs.46 lakhs, and even though there is a recital in the said document to the effect that the plaintiff has paid a sum of Rs.46 lakhs to the defendant on the date of its execution, insofar as its execution has been denied by the defendant, the plaintiff ought to have proved the source of the amount stated to have been paid by her to the defendant. It was asserted by the learned counsel that the plaintiff has miserably failed to prove the source of the amount. It was also pointed out by the learned counsel that though several documents have been produced by the plaintiff, the said documents do not indicate the payment of 9 R.F.A. No.107 of 2014 the said amount of money by the plaintiff to the defendant. The learned counsel has referred to each and every document produced by the plaintiff and raised arguments based on the same to demonstrate that the same would in no way establish the case of the plaintiff that she is a person who could generate a sum of Rs.46 Lakhs. The learned counsel has also argued that the plaintiff has not established that the signatures in Ext.A7 agreement are that of the defendant. It was argued that the signatures in Ext.A7 are not identical or similar. It was also argued that the language used in Ext.A7 stated to have been prepared by PW3, a doctor by profession, is not the language expected from a doctor. It was also argued by the learned counsel that a perusal of the third page of Ext.A7 alone is sufficient to infer that it is not a genuine document. It was pointed out by the counsel that in the third page of the document, the signature stated to be put by the defendant is present after the signatures of the two witnesses to the document which is an unusual procedure. The learned counsel has argued that the evidence rendered by the plaintiff as PW1 10 R.F.A. No.107 of 2014 would also show that Ext.A7 is not a genuine document. In order to substantiate the said argument, it was pointed out by the learned counsel that the version of the plaintiff in her evidence as PW1 is that her brother and nephew, PW3 and PW5 respectively, were not available together at her house on 22.02.2005, and if the said version is correct, Ext.A7 containing the signatures of all of them could only be regarded as a false document. Similarly, it was also pointed out by the learned counsel that while the case pleaded by the plaintiff in the plaint is that Ext.A7 is a document executed on 22.02.2005, PW1 has admitted in her cross-examination that no document was executed on 22.02.2005 and that the agreement for sale was executed earlier. According to the learned counsel, the said evidence of PW1 would also demonstrate that Ext.A7 is not a genuine document. It was argued by the learned counsel, placing reliance on the decision of the Madras High Court in **Chinnadurai R. v. S.Rajalakshmi,** 2004 KHC 4030 that insofar as the plaintiff is not a signatory to Ext.A7 agreement for sale, at any rate, it is not a concluded contract and hence 11 R.F.A. No.107 of 2014 not enforcible. The learned counsel has also argued alternatively that even assuming that the defendant has offered to sell the plaint schedule property to the plaintiff when proceedings have been initiated against the plaint schedule property by the Bank, having regard to the peculiar position in which he was placed at that point of time, it was unethical for the plaintiff to insist enforcement of such an agreement and therefore, the court below ought to have declined specific performance, in exercise of its discretion under Section 20 of the Specific Relief Act, 1963. It was also argued by the learned counsel that even otherwise, having regard to the circumstances under which the agreement was executed, being one that gives an unfair advantage to the plaintiff over the defendant, in the light of clause (a) of sub-section (2) of Section 20 of the Specific Relief Act, the court below ought to have declined the specific performance sought by the plaintiff. The learned counsel has relied on the decisions of this Court in **Prasanna v. Sreedharan,** 1995 KHC 340, **Bhaskaran Nair v. Habeeb Mohammed** , 2002 KHC 180, **Thankom v.** 12 R.F.A. No.107 of 2014 **Balakrishnan Nair,** 2002 KHC 541, **Lalithambika v. Varghese,** 2004 KHC 1226, **Mohandas K.K. and Another v. Thankamma Pillai,** 2015 KHC 90, **Aliyas T.V. and Another v. A.Aboobacker,** 2006 KHC 861 and **Sanal Kumar R. v. V.N.Gangadharan Nadar and Others,** 2015 KHC 511, the decision of the Madras High Court in **Retnaswamy P. v. A. Raja and Another** , 2002 KHC 3619 and the decision of the Orissa High Court in **Jagannath Mallik and Others v. Surendra Gartia** , 2017 KHC 4157, in support of his contention that it is a case where the court below ought to have declined specific performance. In short, the essence of the submissions made by the learned counsel for the defendant is that the impugned decree and judgment are unsustainable in law. 9. Per contra, the learned counsel for the plaintiff submitted that the specific averment of the plaintiff in paragraph 8 of the plaint that the defendant has handed over the original title deed to the plaintiff after clearing the liability of the Bank has not been denied by the defendant in the written statement. According to the learned counsel, the said 13 R.F.A. No.107 of 2014 circumstance, coupled with the production of the original of the title deed in court by the plaintiff along with the plaint would establish beyond reasonable doubt, the case set out by the plaintiff. It is all the more so since the defendant has no case that the original of the title deed was not deposited with the Bank, submits the counsel. It was also argued by the learned counsel that the defendant has not cross examined the plaintiff on her ability to raise and pay Rs.46 lakhs to the defendant and that the said circumstance would also probabilise the case set out by the plaintiff. It was also argued by the learned counsel that having regard to the facts and circumstances of the case, it was obligatory for the defendant to prove that it is the defendant who has arranged funds for liquidating the liability to the Bank, and in the absence of any evidence on the side of the defendant to that effect, the court below cannot be found fault with for having decreed the suit. In reply to the argument advanced by the learned counsel for the defendant that Ext.A16 statement of account produced by PW4 does not show that he has paid any amount to the plaintiff for liquidating the liability 14 R.F.A. No.107 of 2014 of the defendant, it was pointed out by the learned counsel that the said document has been produced only to show that making use of the proceeds of the sale of the property effected by the husband of the plaintiff in terms Ext.A10 document, the amount borrowed by the plaintiff from him for liquidating the liability of the defendant has been repaid. The learned counsel demonstrated the said submission by referring to the various entries therein relating to deposits after 16.02.2006. Similarly, in reply to the argument raised by the learned counsel for the defendant based on the decision of the Madras High Court in **Chinnadurai R.,** it was submitted by the learned counsel that an agreement for sale signed by the vendor alone and delivered to the purchaser has always been considered to be a valid contract, enforcible by the purchaser. The learned counsel has relied on the decision of this Court in **Vasu @ Bhaskaran v. Parukutty Amma and Another,** 2012 (1) KHC 285, in support of the said proposition. According to the learned counsel, there is therefore no reason to interfere with the decision of the court below. 15 R.F.A. No.107 of 2014 10. We have perused the records and given a thoughtful consideration to the arguments advanced by the learned counsel for the parties on either side. 11. As noted, the plaint schedule property is a property where the family house and family temple of the plaintiff and the defendant are situated. There is no dispute between the parties to the fact that the defendant has resided in the family house in the plaint schedule property only during his childhood and the plaintiff has been residing in the family house all throughout her life except for a short period after her marriage. It was while the plaintiff was residing with her family in the house situated in the plaint schedule property, the plaint schedule property has been allotted to the share of the defendant in the family partition effected in the year 1976. There is also no dispute to the fact that the plaintiff has mortgaged the plaint schedule property to Bharat Overseas Bank for his business purposes and that during the year 2003, Bharat Overseas Bank initiated proceedings against the plaint schedule property. It was specifically pleaded by the plaintiff in 16 R.F.A. No.107 of 2014 paragraph 6 of the plaint that on coming to know of the proceedings against the plaint schedule property, the plaintiff and the defendant, in the presence of PW3 and other relatives, discussed the matter and the defendant agreed to transfer the plaint schedule property to the plaintiff by way of sale for the purpose of raising the funds required for liquidating his liability and it is on accepting the said offer that the plaintiff has paid to the defendant a sum of Rs.46 lakhs on 22.02.2005 and the defendant has executed Ext.A7 agreement in the presence of PW3, her brother and PW5, her nephew. In paragraph 5 of the written statement dealing with the averments made by the plaintiff in paragraph 6 of the plaint, the defendant has not stated that he did not offer the plaint schedule property for sale to the plaintiff for Rs.46 lakhs. Instead, what is stated by the defendant is that he has neither accepted Rs.46 lakhs from the plaintiff nor executed any agreement for transfer of the plaint schedule property to the plaintiff. He has also stated in the said paragraph that Ext.A7 is a false document in as much as it is prepared in one signed blank stamp paper entrusted by him to 17 R.F.A. No.107 of 2014 PW3 for a purpose in connection with the temple in the plaint schedule property. The points arising for consideration in the appeal are whether the plaintiff has established the payment of Rs.46 lakhs to the defendant in terms of the arrangement entered into between the parties and whether Ext.A7 agreement is one signed by the defendant. 12. In order to prove the case set out in paragraph 6 of the plaint, the plaintiff has given evidence as PW1. True, there are a few discrepancies in the evidence tendered by PW1. Nevertheless, the evidence was more or less in tune with the case set out by the plaintiff in the plaint. We will be dealing with the discrepancies in the evidence of the plaintiff in the latter part of this judgment. In addition to the evidence of the plaintiff, her brother and nephew were examined by the plaintiff to prove the case set out in the plaint. PW3, the brother of the plaintiff, who is also the elder brother of the defendant has deposed that when he contacted the defendant on coming to know of his liability and the proceedings initiated by the bank against the plaint schedule property, the defendant took the 18 R.F.A. No.107 of 2014 stand that he was unable to raise the funds required for liquidating the liability and that if the plaintiff pays to him a sum of Rs.46 lakhs, he was prepared to liquidate the liability and transfer the plaint schedule property to the plaintiff. PW3 has also deposed that in the said circumstances, with a view to save the family house and the family temple in the plaint schedule property, the members of the family decided to raise and give a sum of Rs.46 lakhs to the defendant on the assurance given by him that he would transfer the plaint schedule property to the plaintiff after liquidating his liabilities. It was also deposed by PW3 that pursuant to the said arrangement, he himself contributed a sum of Rs.25 lakhs and that it is as part of the said arrangement that Ext.A7 agreement was prepared by him. PW3 has also stated in his evidence that it is in his presence that Ext.A7 agreement has been executed by the defendant. PW3 has also deposed that he and PW5 have also signed on Ext.A7 agreement as witnesses. It was also deposed by PW3 that making use of the amounts generated in the aforesaid fashion, the defendant liquidated his liability with 19 R.F.A. No.107 of 2014 the bank, got the title deed released and entrusted the same to the plaintiff. PW3 is a doctor who was in the service of the Government and is working as the Director of the District Cancer Centre, Pathanamthitta after retirement. In cross examination, when PW3 was questioned as to the source of the amount contributed by him, he deposed that his daughter-inlaw had sold an item of property held by her for a sum of Rs.20 lakhs and the proceeds of the sale were lying as a fixed deposit in her bank account and Rs.20 lakhs out of Rs.25 lakhs which he has contributed was generated by pledging the fixed deposit receipts of his daughter-in-law and the balance was given from his own savings. The document in terms of which the daughterin-law of PW3 received the sum of Rs.20 Lakhs is part of the records as Ext.A8. Though PW3 was cross examined thoroughly, nothing was brought out to discredit his evidence. We do not find any reason to disbelieve the evidence tendered by PW3. 13. Likewise, PW5, the son of the eldest sister of the parties gave evidence in tune with the evidence tendered by PW3. PW5 is a person who produces programmes for the 20 R.F.A. No.107 of 2014 Education Department of the State Government since 1999. He acknowledged the fact that he is a signatory to Ext.A7 agreement and that he has paid to the plaintiff Rs.5 lakhs for the purpose of liquidating the liability of the defendant. The evidence of PW5 was also not discredited in cross examination in any manner whatsoever. PWs.4, 6 and 7 are close friends/associates of the family of the plaintiff. They have also deposed that they have given Rs.5 lakhs each to the plaintiff in the process of generating funds. The only contention raised by the learned counsel for the defendant as to the acceptability of the evidence tendered by these witnesses is that they have not established the sources of the amounts given to the plaintiff. True, the plaintiff has not given satisfactory evidence to establish the sources of PW4 to PW7 in giving Rs.20 lakhs to her. But according to us, in a case of this nature, the evidence tendered by PW4 to PW7 cannot be rejected for that reason as the amounts claimed to have been paid by them to the plaintiff are not that huge and beyond the capabilities of persons like PW4 to PW7, having regard to their background as revealed 21 R.F.A. No.107 of 2014 from the materials on record. We take this view also for the reason that as rightly pointed out by the learned counsel for the plaintiff, the ability of the plaintiff to raise Rs.46 Lakhs for liquidation of the liability of the defendant and to purchase the plaint schedule property in the manner pleaded in the plaint has not been questioned by the defendant in the cross examination. 14. As noted, PW3 has categorically stated in his evidence that when he contacted the defendant on coming to know of his liability and the proceeding initiated by the Bank against the plaint schedule property, the defendant expressed his inability to raise the funds required for liquidating the liability and told PW3 that he needs Rs.46 lakhs for liquidating his liability and that if the plaintiff could pay the said amount to him, he was prepared to transfer the plaint schedule property to her. This part of the evidence tendered by PW3 has not been challenged by the defendant in cross examination. In other words, the fact that the defendant was unable to liquidate his liability when steps have been initiated by the Bank against him 22 R.F.A. No.107 of 2014 and the plaint schedule property can be taken as admitted by the defendant. Similarly, the specific case of the plaintiff in the plaint that the liability of the defendant with the Bank has been liquidated in full during February, 2005 has neither been denied by the defendant in the written statement nor has he challenged in cross examination the evidence given by the plaintiff to that effect. That part of the case of the plaintiff can also therefore be taken as admitted by the defendant. The defendant has neither pleaded in the written statement nor has he let in any evidence as to how he liquidated the liability with the Bank, especially the source of the funds utilised for the same. In the aforesaid circumstances, we have no doubt in our mind that the defendant has liquidated the liability by making use of the funds provided by the plaintiff. We take this view also for the reason that the defendant who has no case in the written statement that the original of the title deed of the plaint schedule property was not in deposit in the Bank did not deny in the written statement the specific averment of the plaintiff in paragraph 8 of the plaint that the defendant has handed over 23 R.F.A. No.107 of 2014 the original title deed to the plaintiff, after clearing the liability of the Bank. Insofar as the title deed of the plaint schedule property would be released on liquidation of the liability only to the defendant, the production of that document in the court by the plaintiff along with the plaint can only lead to the inference that the same has been entrusted to the plaintiff by the defendant pursuant to the arrangement as pleaded in the plaint. We have noticed that even though the defendant has vaguely stated in the written statement that the title deed of the plaint schedule property was available with PW3, since the defendant has not established as to how the title deed which was in the Bank came to the hands of PW3, we do not think that the same is a satisfactory explanation from the defendant to justify the production of the title deed of the property by the plaintiff in court along with the plaint. Yet another reason which prompted us to take the aforesaid view is that the husband of the plaintiff is found to have sold an item of property held by him for a sum of Rs.15 lakhs in terms of Ext.A10 sale deed which would probabilise the case of the plaintiff that the same 24 R.F.A. No.107 of 2014 was intended for returning the amounts borrowed for liquidating the liability of the defendant. In short, the plaintiff has established the case set out in the plaint as regards the arrangement entered into between the parties and the payment of money by her to the defendant. 15. We shall now deal with Ext.A7 agreement. Even though the defendant has contended in the written statement that one of the stamp papers used for preparing Ext.A7 agreement is the signed blank stamp paper entrusted by him to PW3 for a purpose in connection with the temple in the plaint schedule property, having noticed that Ext.A7 is prepared in consecutively numbered stamp papers, the defendant has given up the said case and took the stand that the signatures appearing in Ext.A7 as that of him are forged. We have compared the signatures contained in Ext.A7 with the admitted signatures of the defendant in the written statement filed by him and we do not find any material difference in those signatures except the usual natural variations that occur in the case of all persons. The case of the defendant that the 25 R.F.A. No.107 of 2014 signatures appearing in Ext.A7 as that of the defendant are forged cannot, therefore, be accepted. True, the signature of the defendant in the last page of Ext.A7 appears after the signatures of the witnesses to the document which of course is not the usual practice followed while preparing documents in the nature of Ext.A7 and a situation of that nature usually happens only when a document is prepared in an already signed stamp paper. But, as noted, in the absence of a case for the defendant that the last page of Ext.A7 is one prepared on a signed blank paper of the defendant, there is absolutely no reason to suspect that Ext.A7 is not a genuine document. As pointed out by the learned counsel for the defendant, it is also true that there are a few inconsistencies in the evidence tendered by PW1. As indicated, Ext.A7 is a document executed on 22.02.2005 and the plaintiff gave evidence about 7 years thereafter. She was aged 70 at the time of giving evidence. The inconsistencies in the evidence of PW1 pointed out by the learned counsel for the defendant are mainly as regards the statements made by her as to the execution of the document. 26 R.F.A. No.107 of 2014 Having regard to the totality of the facts and circumstance of the case, especially the age of the plaintiff and her background, we are of the view that the discrepancies pointed out are not sufficient to reject the evidence of the plaintiff. Even otherwise, if one reads the case set out by the plaintiff in the plaint, it could be seen that the suit is based on the oral agreement entered into between the family members of the parties on one side and the defendant on the other side, and the agreement for sale is relied on only as a formal document incorporating the terms of the oral agreement. There is no requirement of law that an agreement or contract for sale of immovable property should only be in writing. True, in a case where the plaintiff comes forward seeking a decree for specific performance of a contract for sale of immovable property on the basis of an oral agreement, burden is heavy on the plaintiff to prove that there was _consensus ad idem_ between the parties for a concluded oral agreement for the sale of immovable property. Whether there exists such a concluded oral agreement would be a question of fact to be determined in the facts and 27 R.F.A. No.107 of 2014 circumstances of the case. If it is established by the plaintiff that vital and fundamental terms of sale of the immovable property were concluded between the parties orally and a written agreement is executed later incorporating the terms which had already been settled and concluded in oral agreement, such a document would only be a formal one [See **Brij Mohan v. Sugra Begum,** (1990) 4 SCC 147, **Aloka Bose v. Parmatma Devi** (2009) 2 SCC 582 and **K.Nanjappa v. R.A. Hameed,** (2016) 1 SCC 762]. If one looks at Ext.A7 agreement having regard to the facts and circumstances of the case as discernable from the materials on record, it could be seen that the same is only a document prepared incorporating the terms which had already been settled and concluded in the oral agreement. In other words, having regard to the findings rendered in the preceding paragraphs, the suit is one which could have been decreed even without the aid of Ext.A7 agreement for sale and therefore, it is unnecessary to delve deep into the various contentions raised concerning the execution of Ext.A7 agreement. 28 R.F.A. No.107 of 2014 16. As noted, it was alternatively argued by the learned counsel for the defendant that even if the agreement evidenced by Ext.A7 is a genuine one, the court below was not justified in granting a decree for specific performance of the same. The reason highlighted by the learned counsel, as indicated, is that since the proposal for sale of the plaint schedule property was for the purpose of liquidating the debts, it was unethical for the plaintiff to insist enforcement of the agreement based on such a proposal and that the circumstances give the plaintiff an unfair advantage over the defendant as illustrated in clause (a) of sub-section (2) of Section 20 of the Specific Relief Act. There is absolutely no merit in this argument as well, for the materials on record indicate that it was the suggestion of the defendant to the members of the family as a means to save the family house and the family temple, which was accepted by the family members including the plaintiff and the defendant at no point of time had a case that the price fixed does not represent the market value of the plaint schedule property. Sale of a property by a person 29 R.F.A. No.107 of 2014 for liquidation of a liability cannot always be said to be a situation causing hardship to the person as provided for in clause (a) of sub-section (2) of Section 20 of the Specific Relief Act. It is unnecessary to deal with the large number of cases cited by the learned counsel for the defendant to bring home the point that the court below was not justified in ordering specific performance in the case on hand, for the question as to whether specific performance sought in a given case should be declined in exercise of the discretion conferred on the court under Section 20 of the Specific Relief Act is purely a question of fact to be decided having regard to the facts and circumstances of the case, and a decision on the said question cannot have any precedential value merely for the reason that the grounds on which specific performance was declined exist in those cases. 17. The contention raised by the learned counsel for the defendant based on the decision of the Single Bench of the Madras High Court in **Chinnadurai** is also liable to be rejected in the light of the decision of the Division Bench of this 30 R.F.A. No.107 of 2014 ## Court in **Vasu @ Bhaskaran.** For the aforesaid reasons, we do not find any merit in the appeal and the same is, accordingly, dismissed. **Sd/P.B.SURESH KUMAR, JUDGE.** **Sd/C.S.SUDHA, JUDGE.** Mn