M. Abdulkalam Kalam v. Leelamma and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE T.R.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE K.ABRAHAM MATHEW** **FRIDAY, THE 28TH DAY OF FEBRUARY 2014/9TH PHALGUNA, 1935** **AS.No. 200 of 1996 (A)** **-------------------------------** **AGAINST THE JUDGMENT IN OS 300/1993 of II ADDL.SUB COURT,TRIVANDRUM DATED 30-06-1995** **-----------** ## **APPELLANT(S)/PLAINTIFF:** **-------------------------------------** **M.ABDULKALAM KNOWN AS M.A.KALAM, S/O.MAIDEEN KANNU LEBBA, RESIDING AT THAHA MANZIL, VIZHINJAM, NEYYATTINKARA TALUK.** **BY ADVS.SRI.N.SUKUMARAN,S.SHYAM SRI.PHILIP M.VARGHESE** ## **RESPONDENT(S)/DEFENDANTS 1,2, AND 4 TO 7: (3RD DEFENDANT DIED AND DEFENDANTS 4 TO 7 ARE HER LEGAL REPRESENTATIVES):** **-------------------------------------------------------------------------------------** **1. LEELAMMA D/O.LEKSHMI KUTTY AMMA, RESIDING AT 'REVATHY', TC.1/1447 POTHUJANAM LANE, KUMARAPURAM, TRIVANDRUM.** **2. C.SAHADEVAN PILLAI, RESIDING AT DO. DO.** **3. S.SAIFUDEEN, MANKULAM VEEDU, SREEKARIYAM, THIRUVANANTHAPURAM.** **4. S.NAZEEMUDEEN, DO. DO.** **5. NAZEEM, DO. DO.** **6. N.SABADHA, DO. DO.** - **BY ADVS. SRI.G.S.SRAGHUNATH, SRI.M.RAMASWAMY** **THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 18-02-2014, THE COURT ON 28/02/2014 DELIVERED THE FOLLOWING:** **PJ** ## **T.R.RAMACHANDRAN NAIR & K. ABRAHAM MATHEW, JJ.** **- - - - - - - - - - - - - - - - - - - - - - - - - -** ## **A.S. No.200 of 1996** **- - - - - - - - - - - - - - - - - - - - - - - - - -** ## **DATED THIS THE 28TH DAY OF FEBRUARY, 2014** ## **JUDGMENT** ## Ramachandran Nair, J. The plaintiff in a suit for specific performance is the appellant. Going by the pleadings of the parties, the following are the bare facts necessary for the disposal of this appeal. 2. The first defendant who is the wife of the second defendant, is the owner of plaint schedule property which includes a building. For constructing the building, the second defendant husband availed a loan from the Health Department. According to the plaintiff appellant, the first defendant agreed to sell the plaint schedule property and the building for a total consideration of Rs.2 lakhs and an agreement was executed on 18.1.1993 in his favour. The plaintiff had paid an advance amount of Rs.70,000/- towards consideration out of which Rs.50,000/- was paid by way of cheque drawn on 16.1.1993 and the balance amount of Rs.20,000/was paid in cash. The time fixed for the performance was 30 days. Another condition was that before the said date the first defendant is bound to A.S.No.200/1996 -2- produce the encumbrance certificate and the second defendant will have to clear the loan taken from the health department. Alleging that the first defendant is trying to alienate the property without executing the document, the plaintiff filed a suit on 20.1.1993 as O.S. No.117/1993. It is stated that even though notice was issued, the first defendant failed to execute the agreement and a reply notice was issued raising untenable contentions. 3. The additional defendants 4 to 7 are the legal heirs of additional defendant No.3 who purchased the property from the first defendant. 4. Defendants 1 and 2 contended that no agreement was executed in favour of the plaintiff and alleging that the cheque issued by the daughter of the defendants was dishonoured, a notice was received from the plaintiff to their daughter, viz. Revathi S. Pillai. It was contended that the documents produced by the plaintiff are concocted. The building existing in the property itself is worth Rs.4 lakhs. Defendants 4 to 7 contended that the agreement produced is a concocted one and the property has been purchased by them after completing all formalities. 5. Six issues were framed by the trial court and on the side of the plaintiffs P.Ws.1 and 2 have been examined and Exts.A1 to A14 were A.S.No.200/1996 -3- marked. On the side of the defendants, Exts.B1 and B2 were marked and D.W.1 was examined. 6. On an appreciation of the evidence adduced, the trial court found against the plaintiff. Before us, learned counsel for the appellant submitted that the findings rendered by the court below are not correct. The court below has mainly considered irrelevant aspects. It is submitted that Ext.A1 is the agreement dated 18.1.1993. P.W.2 is the scribe who was examined in support of execution of the document. Apart from the same, the signature in the said document has been admitted by the defendants. Therefore, the burden is on the defendants to prove their case in tune with the pleas raised in the written statement. But defendants 1 and 2 have not adduced any evidence. It is submitted that additional respondents 4 to 7 cannot be heard to say anything as the trial court has found that they purchased the property after the date of execution of the agreement. Learned counsel submitted that in the reply notice furnished by defendants 1 and 2, viz. Ext.A10, defendants 1 and 2 offered some explanation in the matter which was relied upon by the trial court. But they did not adduce any evidence in support of the same. A.S.No.200/1996 -4- 7. It is submitted that on the date of agreement, the marriage of the daughter of defendants 1 and 2 was performed. The finding by the trial court that it is improbable that on that day the mother had gone to the office of the scribe to execute the document, is not correct. Learned counsel therefore submitted that the plaintiff is entitled to get a decree as sought for. 8. Learned counsel for the appellant relied upon the following decisions, viz. **Pathu v. Katheesa Umma** (1990 (2) KLT SN Page 35, C. NO.49), **D.M. Deshpande and others v. Janardhan Kashinath Kadam (dead)** {(1998) 8 SCC 315} **and Iswar Bhai C. Patel alias Bachu Bhai Patel v. Harihar Behera and another** (AIR 1999 SC 1341). 9. Learned counsel appearing for the additional defendants (additional respondents 3 to 6 herein), supported the judgment and decree. Learned counsel submitted that the circumstances pointed out by the trial court to enter a finding that the agreement is not a genuine one, cannot be said to be irrelevant. The property belonged to the first defendant wife. On 18.1.1993 the marriage was solemnised. Therefore, it cannot be even thought that on the same day while defendants 1 and 2 were in the midst of the marriage ceremonies and were engaged in all affairs in connection with A.S.No.200/1996 -5- the marriage, they would have gone to the office of the scribe to execute the agreement. It is submitted that the circumstances pointed out by the plaintiff as revealed from Ext.A3 plaint in O.S. No.117/1993 will show that the defendants were hard pressed for money for meeting the expenses for the marriage. He relied upon the dictum laid down by this Court in **Adimakutty Hydu Ali v. Ambujam** (2003 (2) KLT 328), **Thomas P. Abraham v. Aleyamma Abraham** (2003 (3) KLT 864) and **Lalithambika v. Varghese** (2004 (3) KLT 892). 10. We have considered the rival submissions. The main point is whether a decree as sought for could be granted based on Ext.A1 agreement. Going by the pleas of the plaintiff and the evidence, the advance amount was given on 16.1.1993. True that the signature of the first defendant is there in Ext.A1. But the case of the defendants in Ext.A10 reply notice is that blank signed stamp papers were obtained by the plaintiff on 18.1.1993. The trial court in para 10, has considered the following aspects: The date of marriage of the daughter of defendants 1 and 2 was on 18.1.1993. Ext.A1 is seen executed on the said date. Normally, on the date of marriage, the father and mother of the girl to be married, will be A.S.No.200/1996 -6- fully engaged in the conduct of the ceremony. They will have to arrange for the marriage function and to receive the guests and also to make arrangements for the feast. The expenses necessary will also have to be met by them. Therefore, normally the parents and the girl will not be getting time to do any other acts as they will be pre-occupied. Therefore, it was observed that one cannot believe that the first defendant has gone to the office of the scribe in order to execute the agreement for sale on the date of marriage of her daughter. It was observed that according to the plaintiff, the first defendant went to the office of the scribe at 3'O clock and the plaintiff deposed before the court that the first defendant went there at 2'O clock. The trial court then referred to the statements made in the reply notice, Ext.A10. Going by the same the defendants stated that for the marriage, necessary money could not be procured by the defendants and the second defendant approached the plaintiff on 16.1.1993. On that day a blank cheque was obtained by the plaintiff from the daughter of defendants, Revathy S. Pillai. The plaintiff managed to postpone the payment to 17.1.1993 and thereafter to 18.1.1993. On 18.1.1993 he drew a cheque in favour of the first defendant at 9.40 a.m.. Thereafter he obtained blank A.S.No.200/1996 -7- signed stamp paper from the first defendant as security. It is also stated in Ext.A10 that for solemnisation of the marriage purchase of ornaments was essential and finally the defendants got ornaments from Ayyappa Jewellery on entrusting the cheque issued by the plaintiff to them, because there was no time to encash the cheque before solemnisation of the marriage. 11. The trial further court found that the above statements in Ext.A10 are probable in the light of the crucial averments made by the plaintiff himself in the plaint in the earlier suit for injunction filed as O.S. No.117/1993 on 20.1.1993, viz. on the second day of execution of the agreement. The following are the averments therein: “The amount was advanced to the defendant to save them for a critical situation. If the amount was not paid the marriage of their daughter would not have taken place as scheduled on 18.1.1993 due to want of funds. Feeling desperate over the bad situation on which they were situated, the 2nd defendant decided to commit suicide resulting thereby in the collapse of the entire family.” (underline supplied). It was held by the trial court that the same will show the compelling circumstances under which they borrowed money from the plaintiff. The plaintiffs have gone to the extent of stating that the defendants were very A.S.No.200/1996 -8- desperate and the second defendant had decided to commit suicide, as they were short of funds. 12. In the light of this background, the trial court in para 10, was of the view that there is nothing wrong in drawing an inference that even as on 18.1.1993 the first defendant had no intention to transfer the property to the plaintiff on receipt of a consideration of Rs.1,80,000/-. The filing of the suit by the plaintiff within two days after the execution of Ext.A1 agreement will bring to light the fact that the first defendant had no intention to execute a sale deed in favour of the plaintiff but she has compelled to sign a blank paper. 13. In para 11 of the judgment, the trial court has examined the several features of the document, Ext.A1. It is contended by the learned counsel for the appellant that the observation made by the trial court based on the findings therein that blank papers were used to draft the agreement, is not correct. We extract the following observations of the trial court with regard to the said agreement, Ext.A1: “Exhibit A1 document itself speak volume to regarding this circumstances. It is relevant to note that on 2[nd] page as well as 3[rd] page and 4[th] page of the document enough space is left in the A.S.No.200/1996 -9- bottom. Normally the said place could have been used for writing in 2 or 3 lines. But it is seen that even though ample space is left in bottom of the said pages, the document writer has not even chosen to complete the last sentence in the said page itself. Sufficient page is seen in the bottom of P2, 3 and 4. The document writer has not chosen to complete the last sentence. A portion of the last sentence find a place in one page and the remaining portion is seen written in the next page. One can see that the last line of page 2, 3 and 4 just touches the signature affixed by the 1[st] defendant. More over in the last page last but one line touches signature affixed by 1[st] defendant and the rest is written and one side of the signature affixed. This clearly reveals that 1[st] defendant has affixed his signature to blank paper and subsequently the matter was written in the paper. In order to complete the writing within the paper signed the document writer has to make adjustment. No doubt the document writer was examined as PW2. PW2 has deposed in the chief examination that the defendant signed the document in his presence. But PW2 would say that he cannot identify the defendant. Moreover it is clear that the office of the document writer is situated close to medical shop run by plaintiff in this case. PW2 is not a licencee. According to PW2 Janardhanan Nair is the senior and he is having licence. It has come out in evidence that the plaintiff and document writer has previous A.S.No.200/1996 -10- acquaintance. In such circumstances the interested testimony of PW2 which is against the other circumstances brought out in evidence, cannot be acted upon to hold that 1[st] defendant has executed Ext.A1 document after knowing his contents. Thus the oral evidence tendered by the plaintiff and other documents produced is not of any avail to him in the circumstances stated above.” 14. What is contended by the learned counsel for the appellant is that the evidence of P.W.2 will support the case of the plaintiff. It has come out in evidence that the office of the document writer is situated close to the medical shop run by the plaintiff. P.W.2 is not a licencee, but his senior is the licencee. Both the plaintiff and the document writer have previous acquaintance also. It was held therefore, that the interested testimony of P.W.2 cannot be accepted. We find no reason to disagree with the same. 15. Finally, the trial court found that in the light of Section 20(2) of the Specific Relief Act, as the grant of specific performance is of a discretionary nature and in the light of the circumstances which had emerged in the case, it will be inequitable to grant a decree as sought for. 16. With regard to the finding of the trial court based on the averments in Ext.A3, viz. The copy of the plaint in O.S. NO.117/1993, even A.S.No.200/1996 -11- though vehement arguments were raised by the learned counsel for the appellant, we find no reason to disagree with the view taken by the trial court. The plaintiff had clearly averred that the money was advanced to the defendants to save them from a critical situation, and if the amount was not paid, the marriage of their daughter would not have been taken place as scheduled. It was further averred that the defendants were very desperate and the second defendant had decided to commit suicide also. It is clear from the pleadings and evidence that defendants 1 and 2 were very close to the plaintiff also. That is why they approached the plaintiff for help on 16.1.1993. The cheque was given on 18.1.1993. These circumstances will therefore show that under compelling circumstances, so as to conduct the marriage of their daughter alone, money was required by the defendants. The question is therefore whether, merely because the signature in the document is admitted by the defendants, it should be taken that all the circumstances have been proved by the plaintiff to get a decree. 17. The finding by the trial court mainly that it cannot be believed that on 18.1.1993 the first defendant gone out of the house to execute an agreement like the one herein, is really justified. Evidently, the marriage A.S.No.200/1996 -12- ceremony was going on. Being the mother, it cannot be believed that she has gone out of the venue of the marriage before completing all the formalities of the marriage and other obligations. The guests had to be attended and various expenses for the conduct of marriage would have to be met. Her presence in the venue is essential and important. It cannot be taken as probable that the first defendant along with the second defendant would have stepped out of the venue to reach the office of P.W.2 to sign the document. We also have perused Ext.A1 and the observations made by the trial court which have been extracted by us, are telling. We find no reason to disagree with the same also. Therefore, plainly the circumstances would go against the plaintiff and the finding by the trial court that Ext.A1 is not a genuine document executed by the first defendant, is clearly well justified. We concur with the same. 18. Of course, learned counsel for the appellant submitted that the plea raised by the defendants which have been referred to by the trial court by relying upon Ext.A10 cannot be accepted, as they have not adduced any evidence in support of their claim. But herein, as we have already observed, the averments in the plaint, Ext.A3 by the plaintiff himself will go to show A.S.No.200/1996 -13- that the defendants were in a desperate position to properly conduct the marriage ceremony by borrowing amounts which is the same stand taken in Ext.A10 reply notice. Therefore, the question is whether the agreement in question was really a duly and properly executed document for sale of the property. 19. In **Adimakutty Hydu Ali's's case** (2003 (2) KLT 328), it was observed by the Division Bench in para 3 that “before decreeing specific performance, it is obligatory for courts to consider whether by going so any unfair advantage would result for the plaintiff over the defendant, the extent of hardship that may be caused to the defendant and if it would render such enforcement inequitable, besides taking into consideration the totality of circumstances of each case.” 20. The next decision referred to by the learned counsel for the respondents is that of another Division Bench in **Thomas P. Abraham's case** (2003 (3) KLT 864). Therein, it was held as follows: “The Court exists for dispensation of justice. On the mere fact that written statement is not filed or that the defendant has not controverted the averments in the plaint, court is not expected to blindly follow the averment made by the plaintiff and decree the A.S.No.200/1996 -14- suit. The court will examine whether the averment made by the party is legal and valid and a specific performance decree be granted which is discretionary. Discretion has to be exercised on sound legal principle and not on the weakness of the defendant’s case. In a suit for specific performance court has got considerable discretion to grant decree or not, even in a case where no written statement has been filed. Being a discretionary remedy even when no written statement has been filed the Court has got the duty to examine whether suit can be decreed on the averments made in the plaint alone. In a given case plaintiff had failed to comply with the statutory requirements for the grant of decree for specific performance and the suit could be dismissed. The Court is not bound to decree specific performance merely because it is lawful to do so. The discretion is however to be exercised on sound legal principle. In other words, being a discretionary remedy the fact that defendant has not filed written statement as such is not a ground for passing an _ex parte_ decree.” 21. The next one is the decision of a learned Single Judge of this Court in **Lalithambika's case (** 2004 (3) KLT 892) which is heavily relied upon by the learned counsel for the respondents. Therein, it was held that the circumstances under which the agreement was executed, will have relevance. In paragraphs 13 and 15 the following findings have been A.S.No.200/1996 -15- ## rendered: “The fact that the plaintiff has not come to Court with clean hands is one of the circumstances which can be taken into account for denying specific relief. If the circumstances in which the agreement was executed are such that the defendant was compelled to execute the agreement in unfortunate circumstances and the plaintiff was taking advantage of the same it is a case where specific performance can be denied. It is more so when the agreement is in favour of money lender. The Court should meticulously consider all the facts and circumstances of the case and the Court is not bound to grant specific performance merely because it is lawful to do so. The circumstances which I have discussed under point No.1 to hold that the transaction was in fact a loan transaction are themselves sufficient to persuade this Court not to exercise the discretion in favour of the plaintiff.” Herein also, we find that the defendants had approached the plaintiff evidently to meet the expenses for the marriage and hence he had issued a cheque. It is also in evidence that even prior to that, on a former occasion he had advanced money for the daughter of the defendants Revathi S. Pillai, viz. Rs.5,000/- and for failure to return the money, he had issued a notice. Therefore, it is discernible that the plaintiff was approached by the A.S.No.200/1996 -16- defendants for financial help on different occasions. In para 3 of the plaint itself the plaintiff has stated that the daughter of the defendants had, on receipt of a loan of Rs.5,000/-, gave the plaintiff a cheque for Rs.5,000/- in the month of September, 1992. That cheque was dishonoured and a notice under Section 138 of the Negotiable Instruments Act had been issued but she did not pay the amount. These items of evidence will show that transactions were there between the plaintiff and defendants. It is in that context it has to be examined whether the agreement herein could be treated as one enabling the plaintiff to get a decree. 22. In fact, learned counsel for the appellant had argued that the defendants had handed over various documents before the execution of the document which will only justify the pleas raised by the plaintiff. But we are on a larger question whether the compelling circumstances under which the marriage was conducted and as the family was in distress and was in need of money urgently, will help the plaintiff to get an equitable relief. 23. Now we will come to the decisions relied upon by the learned counsel for the appellant. **D.M. Deshpande's case** {(1998) 8 SCC 315} is relied upon to contend that vague pleas without factual basis cannot A.S.No.200/1996 -17- advance the case of a party. **Aniglase Yohannan v. Ramlatha and others** {2005) 7 SCC 534} is relied upon to show that when readiness and willingness of the plaintiff has been expressed and when the conduct of the plaintiff had been blemishless throughout he will be entitled for a decree for specific performance. 24. I **swar Bhai C. Patel's case** (AIR 1999 SC 1341) is relied upon to contend for the position that since the first defendant has not entered the box, an adverse inference will have to be drawn. 25. **Pathu's's case** (1990(2) KLT SN page 35, C. No.49) is relied upon to contend that when a person's signature appears at the place where the executant would normally sign, the signature may be accepted prima facie as having been put in token of execution. 26. We are definitely of the view that the circumstances found as relevant by the trial court to deny the relief to the plaintiff are cogent and convincing. Since the document alleged to have been executed is on 18.1.1993, viz. on the date of marriage of the daughter of the defendants and as it is evident from the pleas of the plaintiff itself in Ext.A3 plaint that the defendants were in dire need of money and were in a desperate position, A.S.No.200/1996 -18- these will support the statements contained in the reply notice, Ext.A10, as rightly held by the trial court. These circumstances cannot be overlooked even though the first defendant was not examined. The trial court has correctly drawn support from the averments in Ext.A3 plaint to satisfy whether the circumstances stated by the defendants in the reply notice Ext.A10 are mainly correct or not. Ext.A1 agreement cannot be taken as one duly executed. Hence, it will be inequitable to decree specific performance. 27. In that view of the matter, we find no reason to interfere with the decree and judgment. Accordingly the appeal is dismissed. The parties will suffer their costs in the appeal. ## **(T.R.RAMACHANDRAN NAIR, JUDGE)** ## **(K. ABRAHAM MATHEW, JUDGE)** **kav/** ## A.S.No.200/1996 -19- **T.R.RAMACHANDRAN NAIR & K. ABRAHAM MATHEW, JJ.** **- - - - - - - - - - - - - - - - - - - - - - - - - - A.S. No.200 of 1996** **- - - - - - - - - - - - - - - - - - - - - - - - - -** **JUDGMENT** **28TH DAY OF FEBRUARY, 2014**