Lalitha and others v. George Kutty @ Rajan

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.BHAVADASAN** **TUESDAY, THE 11TH DAY OF FEBRUARY 2014/22ND MAGHA, 1935** ## **RSA.No. 492 of 2013 ()** **----------------------AS.NO.97/2005 OF SUB COURT, NEDUMANGAD DATED 07-12-2012 OS.NO. 341/2004 OF PRL.MUNSIFF COURT,NEDUMANGAD DATED 26-09-2005 ------------------------------------------** ## **APPELLANTS/APPELLANTS/ DEFENDANTS :** **------------------------------------------------------------------** **1. LALITHA, AGED 61 YEARS,D/O SULOCHANA, OOTTUKUZHI VEEDU, VADAKKUMKARA PATTU, MYLAM, ARUVIKKARA VILLAGE, THIRUVANANTHAPURAM.** **2. L. SHEEBA, AGED 35 YEARS, D/O LALITHA, ATTARIKATHU, KATTAIKKAL VEEDU, TAGORE ROAD, ARAMADA, THIRUMALA, THIRUVANANTHAPURAM.** **3. L. SHEEJA, AGED 33 YEARS,** - **D/O LALITHA, OOTTUKUZHI VEEDU, VADAKKUMKARA PATTU, MYLAM, ARUVIKKARA VILLAGE, THIRUVANANTHAPURAM.** **4. K. SHIBU, AGED 31 YEARS,** - **S/O KRISHNA NADAR, RESIDING AT OOTTUKUZHI VEEDU, VADAKKUMKARA PATTU, MYLAM, ARUVIKKARA VILLAGE, THIRUVANANTHAPURAM.** **BY ADVS.SRI.G.S.REGHUNATH SRI.K.RAJESH KANNAN SRI.A.S.SHAMMY RAJ SRI.P.SHANES** ## **RESPONDENT/RESPONDENT/ PLAINTIFF:** **---------------------------------------------------------------** **GEORGE KUTTY @ RAJAN, ASHA BHAVAN, AGED 60 YEARS,PARAKONAM, MYLAM, KONNIYOOR MURI, ARUVIKKARA (P.O), ARUVIKKARA VILLAGE, THIRUVANANTHAPURAM -695 564** ## **BY ADV. SRI.A.RAJASIMHAN** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 11-02-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **sts** ## **P.BHAVADASAN, J.** **----------------------------------------------Regular Second Appeal No.492 OF 2013 ----------------------------------------------Dated this the 11[th] day of February, 2014.** ## **J U D G M E N T** The defendants in O.S.No.341/2004 before the Principal Munsiff Court, Nedumangad who suffered a decree of specific performance which was confirmed in appeal are the appellants. The facts absolutely necessary for the disposal of the appeal are as follows: 2. The 1[st] defendant along with her husband Krishnan Nadar who is no more is alleged to have executed Ext.A1 agreement for sale whereby they agreed to assign 10 cents of property at a consideration of Rs.4900/- per cent. It is claimed that a sum of Rs.38,500/- was paid on the date of agreement and the term of agreement was six months from the date of the agreement. It is also claimed that the vendee was put in possession of the property. Even though Krishnan Nadar agreed **R.S.A No.492/2013** **2** to assign the property, on the day previous to the date fixed, he committed suicide and therefore the sale deed could not be executed. The claim of the plaintiff is that he subsequently approached the defendants who are legal heirs of Krishnan Nadar for execution of the document. But, in spite of repeated demands, they did not yield to his demand and therefore, suit was laid. 3. The defendants resisted the suit. They pointed out that Ext.A1 was a concocted document and neither Krishnan Nadar nor the 1[st] defendant had entered into an agreement of that nature. They never had any dealings with the plaintiff and the document is a dubious one. They therefore prayed for dismissal of the suit. 4. On the basis of the pleadings, trial court raised necessary issues for consideration. The evidence consists of the testimony of PWs 1 to 3 and the documents marked as Exts.A1 to A3. The defendants examined DWs 1 and 2 and had Exts.B1 to B3 marked. **R.S.A No.492/2013** **3** 5. Both the courts below, on consideration of the materials, came to the conclusion that Ext.A1 agreement had in fact executed by Krishnan Nadar and the plaintiff is entitled to decree of specific performance. Therefore, the suit was decreed and was confirmed in appeal. The questions of law raised in the memorandum of appeal are: - I. When the defendants have specifically contended that they have not executed any agreement for sale in favour of the plaintiff regarding the plaint schedule property, is not the burden of proof on the plaintiff to prove the execution of Exhibit-A1 agreement? - II. Is not the contention in the written statement that the allegations in paragraphs 2 and 3 of the plaint are absolutely false and that the defendants have not executed any agreement for sale regarding the plaint schedule property, a specific denial of the allegations in para 3 of the plaint? - III. Will the contention in the written statement that Exhibit-A1 is falsely and fraudulently fabricated, shift the burden of proof on the defendants to disprove Exhibit-A1? - IV. Has not the lower court violated all settled principles of law in granting specific performance of Exhibit-A1 agreement for sale directing measurement of the **R.S.A No.492/2013** **4** property to be sold after the date of decree? - V. Has not the lower court misinterpreted and perversely appreciated Exhibits-B1 and B2 in holding that the said documents probabilises the case of the plaintiff? - VI. When Exhibit-A1 do not contain the signature of defendants and deceased Krishnan Nadar in its vital position, is the lower court justified in upholding Exhibit-A1? - VII. Is not the lower court bound to draw an adverse inference against the plaintiff and reject Exhibit-A1 as not proved, as the plaintiff has committed material suppression of the evidence of the so-called witnesses of Exhibit-A1? - VIII. When it is admitted by plaintiff that he does not know the actual extent of the property to be purchased by him, is the court below justified in granting a decree for specific performance of Exhibit-A1? 6. Sri.G.S. Raghunath, learned counsel appearing for the appellants, assailed the findings of the courts below on several grounds. It is pointed out by him that there was no careful or meticulous analysis of the evidence which would clearly show that **R.S.A No.492/2013** **5** the agreement is not one executed by late Krishnan Nadar and the 1[st] defendant and in all probability, it was a concocted document. It is pointed out that the claim of the plaintiff that he has been put in possession is belied by Ext.A1 agreement and there is nothing to show that he was in possession of the property in pursuance to Ext.A1 Agreement. It is then pointed out that the defendants had put Ext.A1 agreement in issue specifically and it is surprising to note, according to the learned counsel, that none of the witnesses to the document have been examined. Instead the scribe who, according to the defendants, had master minded to concoct document, alone was examined. Referring to the evidence, it was pointed out that he does not identify the signatures of the executants in the document. Ext.A1 was also referred to and it is pointed out that in the last page of the document, the attestation and the signatures of the executants are conspicuously absent. This would show that the document was prepared and later on signatures were forged. 7. It was also contended by the learned counsel for the appellants that the evidence of PW2, the scribe, would show that **R.S.A No.492/2013** **6** on 20.11.2003 while the deceased Krishnan Nadar was on his way, at a junction he had occasion to meet PW2 who was then informed that he intended to draw an agreement for sale and he would want his service. Accordingly, Ext.A1 was drawn up, according to PW2. Learned counsel drew the attention of this Court to the fact that the stamp paper which has been used for drawing up of the agreement is seen purchased on 18.11.2003 by PW2 and that shows that his claim that information was given on 20.11.2003 cannot be true. It is also pointed out that a reading of the evidence of PW2 would show that he had stealthily removed the stamp paper and that also causes suspicion about the agreement. These aspects have been omitted to be noticed by the courts below. The courts below have simply gone on to the premises that the evidence of PWs 2 and 3 are sufficient to show the due execution of the document and there is nothing to show that the signature found on Ext.A1 is a forged signature of Krishnan Nadar and his wife. According to the learned counsel, had the courts addressed themselves to the above items, it could have easily seen that no agreement was executed. **R.S.A No.492/2013** **7** 8. Learned counsel for the appellants then went on to point out that even assuming that the agreement is true, the courts below were bound in law to consider the application of Section 20 of the Specific Relief Act and neither of the courts have addressed themselves to this question and it is trite by now, according to the learned counsel, that in a suit for specific performance whether there is written statement or not, whether the defendants dispute the agreement or not, whatever may be the contentions taken by the parties, the courts are bound to consider the application of Section 20 of the Act which is a discretionary relief conferring duty upon the court to consider the equality and inequality while granting a decree in respect of the suit. In support of the said principle, learned counsel relied on the decisions in _**Lalithambika** vs._ _**Varghese**_ (2004 (3) KLT 892), _**Nirmala Anand** vs._ _**Advent Corporation (P) Ltd. and others**_ [(2002) 5 Supreme Court Cases 481], _**Nibash Ch. Saha and another** vs._ _**Champa Lal Ladhar**_ (2010 KHC 6530), _**Kunjamma** vs._ _**Chellappan**_ (2004 KHC 1355), _**Laxman Tatyaba Kankate and another** vs._ _**Taramati Harishchandra**_ **R.S.A No.492/2013** **8** _**Dhatrak**_ (2010 (7) SCC 717), _**Jayashree G and others** vs._ _**Bhagwandas S. Patel and others**_ [(2009) 3 SCC 141], _**Garre Mallikharjuna Rao (dead) by LRS.** vs._ _**Nalabothu Punniah**_ [(2013) 4 Supreme Court Cases 546] and in _**Aliyas** vs._ _**Aboobacker**_ (2006 (4) KLT 282). 9. It is contended by the learned counsel for the appellants that even after the defendants had specifically disputed the execution of document, the fact that the plaintiff was shy to call the witnesses to the document for proving the document, calls for drawing an adverse inference. For the above proposition, learned counsel relied on the decision in _**Virendra Kumar Saklecha** vs._ _**Jagjiwan and others**_ (AIR 1974 Supreme Court 1957(1)). It was also pointed out that even assuming that the signature was put on the document, it does not mean that the document has been executed by the executants. For the above proposition, learned counsel relied on the decision in _**Velayudhan** vs._ _**Velayudhan**_ (2001 (1) KLT 392). 10. Per contra, Sri.A.Rajasimhan who appeared for the respondent contended that there is absolutely no substance in **R.S.A No.492/2013** **9** any of the contentions raised by the learned counsel for the appellants. There was ample opportunity for the defendants to produce the admitted signature of Krishnan Nadar to prove their claim that the signature of Krishnan Nadar does not tally with the signature in Ext.A1. This exercise having been not done , it is idle for the defendants to contend that the signature found in Ext.A1 does not belongs to Krishnan Nadar. It is also contended that if there was an intention to fabricate a document, usually, it could have been done to perfection and the perpetrators would not have left anything suspicious. The fact that the signatures of the executants are not found on the last page only strengthens the case of the plaintiff to show that he had no intention to forge the document. It is also pointed out that there is no reason to doubt the versions given by PWs 2 and 3 who speak about the execution of document and also about the advance amount paid to late Krishnan Nadar. It was contended that the courts below were justified in accepting the evidence of PWs 2 and 3. Learned counsel further pointed out that little reliance can be placed on the evidence of the defendants who wriggled out of the **R.S.A No.492/2013** **10** transaction for the reasons best known to them. There is no case for the defendants, according to the learned counsel, that there was any debtor-creditor relationship between the plaintiff and the late Krishnan Nadar and the 1[st] defendant. If that be so, there is no justification that a document of Ext.A1 nature to be executed. Learned counsel also cautioned this Court that this Court is exercising its jurisdiction under Section 100 of the Code of Civil Procedure which is considerably limited in scope and power and unless it is shown that the findings are perverse or are contrary to the evidence on record, this Court may not be justified in interfering with the concurrent findings of fact. There is no such contingency presented in the present case and therefore, interference is not called for. 11. The issue relates to the genuineness of Ext.A1 and the recital therein. While the plaintiff would say that it is a genuine document executed by Krishnan Nadar and his wife in favour of the plaintiff, the defendants would say otherwise. The defendants would say that they had no occasion to enter into an agreement of the nature of Ext.A1 and it is a concocted **R.S.A No.492/2013** **11** document. The defendants have specifically denied the signature in Ext.A1. 12. It is true that both the courts below have found in favour of the plaintiff. But the learned counsel for the appellants points out certain things which would show that there may be some substance in the contention raised by the learned counsel for the appellants. It is significant to notice that even after the defendants specifically denied the signature in Ext.A1, the plaintiff was shy to examine the witnesses to the document but was satisfied by examining PW2, the scribe and PW3 as an independent witness. It may be noticed that PW3 had nothing to do with the execution of the document. He claimed to have been merely present when Ext.A1 was executed and it is significant to notice that one of the attesting witnesses is a member of the panchayath who is a respectable person and if, as a matter of fact, the plaintiff had a case that the said person was one of the attesting witnesses, there was no reason as to why he was not examined. So also the other witness was not examined. There is nothing to show that either PW2 or PW3 were familiar with the **R.S.A No.492/2013** **12** signatures. In fact, PW2, in his affidavit in chief, does not say that the particular signatures belong to late Krishnan Nadar and the 1[st] defendant. He is unable to explain the blank space left in the last page of the document also. 13. There are two witnesses to Ext.A1. As already noticed, one of them is a Panchayath member. There is no reason given by the plaintiff as to why any one of the attesting witnesses was not examined. 14. Coming to the evidence of PW2, it seems to be very shaky. He, in his affidavit in chief, speaks about having drawn up Ext.A1 document in pursuance to the information given by late Krishnan Nadar. He would further say that on 05.04.2004, Krishnan Nadar had told that the document will be executed on 06.04.2004. On 06.04.2004, unfortunately, Krishnan Nadar committed suicide. However, in cross examination, several aspects were brought out to make the document open to serious doubt. He, in cross examination, stated that Krishnan Nadar met him on 20.11.2003 and told him that an agreement would be drawn up regarding his property for sale to the plaintiff. The **R.S.A No.492/2013** **13** evidence of PW2 would show that he procured stamp paper and had drawn up the document. But, as rightly pointed out by the learned counsel for the appellants, stamp paper is seen to have been purchased on 18.11.2003. This is a case which PW2 did not have that prior to 20.11.2003, Krishnan Nadar had ever told him that he is inclined to execute an agreement for sale. It is further seen from his evidence that he was working in the office of another lady and the endorsement on the reverse side of the stamp papers were made by him. This, as rightly noticed by the learned counsel, is contrary to the relevant rule of the Stamp Act. His evidence also shows that he does not keep record of documents written by him. This is also not acceptable. He at one point of time in cross examination would say that he had brought the stamp paper and in another point of time, he would say that he obtained it from somebody. These incongruities remained unexplained and it is very evident that his evidence is not above board and going by the materials on record, he had a prominent role to play. 15. Regarding the drawing up of Ext.A1, of course, there is **R.S.A No.492/2013** **14** evidence of PW3. A witness claims to have gone along with other parties and would claim that he had seen execution of agreement. In the light of the fact that two attesting witnesses who are more competent to speak have not been examined, his evidence cannot be taken as sufficient to prove the execution of the document. 16. It is also significant to notice that even though the plaintiff claims that he has been put in possession of the property in pursuance to the agreement, there is no evidence regarding the same. Again, if, as a matter of fact, he was actually put in possession of the property and he was still in enjoyment, it is difficult to understand that he has come up with a suit for specific performance. Both the courts below then go on to say that the defendants have admitted that there are only eight cents of property and therefore, the value for that alone be taken. The lower appellate court found that a balance of Rs.750/- alone is due. 17. Before going further, one aspect may be noticed. Even though the plaintiff is claimed to be in exclusive possession and **R.S.A No.492/2013** **15** right, he is unable to give any of the boundaries of the properties. He would say that the property sold to the daughter of the 1[st] defendant is demarcated whereas the evidence of DW1 is otherwise. Whatever that be, there is absolutely no evidence to show that the plaintiff was in possession of the property. If, as a matter of fact, the plaintiff was put in possession of the property, there is nothing which prevented from saying so in the agreement for sale. The recital regarding that is conspicuously absent. 18. The above vital aspects have been omitted to be noticed by the courts below. It is not as if the plaintiff has been able to successfully prove the case. Learned counsel for the appellants was not justified in his submission that even assuming that the agreement is true and valid, there is no justification for the court in not applying the principles laid down in Section 20 of the Specific Relief Act to the facts of the case. Both the courts have not adverted to these facts. Various decisions referred to by the learned counsel for the appellants refer to various aspects. It is to be remembered that in every suit for specific **R.S.A No.492/2013** **16** performance, it is not mandatory that the court should grant specific performance. It is held that the mere fact that the defendant had denied the agreement or defendant had spoken against agreement, that should not automatically result in a decree for specific performance in favour of the plaintiff. The equity involved must be analysed and various aspects will have to be considered before the court decrees a specific performance. 19. A reading of the judgments of the courts below will clearly indicate that both the courts below have not considered the above aspects at all and have brushed it aside. That is not proper. It is felt that remand for that purpose is quite uncalled for. 20. Considering the totality of the circumstances, it is felt that even assuming that the agreement is true, the plaintiff may not be entitled for decree of specific performance. But he is certainly entitled to return of the advance amount paid by him. In the result, this appeal is allowed. The judgment and the decree of specific performance are set aside and the plaintiff is granted a decree for recovery of the advance amount of **R.S.A No.492/2013** **17** Rs.38,500/- (Rupees Thirty Eight Thousand Five Hundred only) with 6% interest from the date of payment till the date of realisation and also the cost of the suit. Sd/- **P.BHAVADASAN JUDGE** smp // True Copy // P.A. to Judge.