M.A. Muhammed Sherief v. Nizeema and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE SHIRCY V.** **WEDNESDAY, THE 09TH DAY OF OCTOBER 2019 / 17TH ASWINA, 1941** ## **AS.No.41 OF 2003** **AGAINST THE JUDGMENT IN OS 619/1995 OF ADDITIONAL SUB COURT,KOTTAYAM** ## **APPELLANT/PLAINTIFF:** **M.A.MUHAMMED SHERIEF S/O. MOHAMMED ABDULKHADER RAWTHER, MOIDHEENPARAMBIL, PUZHAVATH, CHANGANACHERRY.** **BY ADV. SRI.V.V.ASOKAN (SR.) BY ADV. SRI. V. SIVASWAMY** ## **RESPONDENTS/DEFENDANTS:** **1 NIZEEMA, W/O. NIZAR HASSAN, PUTHANBUNGLAW, BEACH NORTH, KOLLAM 6 2 NESLEY NIZAR, S/O. NIZAR HASSAN AGED 17 YEARS, REPRESENTED BY HIS NEXT FRIEND, AND GUARDIAN NIZEEMA, PUTHEN BUNGLAW, BEACH NORTH, KOLLAM-6. 3 SAJI HASSAN, S/O. MUHAMMED HASSAN NELLITHANATHU RUBY MANZIL, VAZHAPPALLY EAST, CHANGANACHERRY.** **R1 & R2 BY ADV. SRI.M.P.GOVINDAN NAIR R1 & R2 BY ADV. SRI.PHILIP T.VARGHESE R2 BY ADV. SRI.P.R.RADHAKRISHNAN R2 BY ADV. SRI.N.SASI R3 BY ADV. SRI.SABU GEORGE R2 BY ADV. SRI.THOMAS T.VARGHESE** **THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 04.09.2019, THE COURT ON 09.10.2019 DELIVERED THE FOLLOWING:** A.S.41/2003 2 ## **JUDGMENT** ## **Dated this the 9th day of October 2019** The appellant who is the tenant in the plaint schedule property had approached the Additional Sub Court, Kottayam for specific performance of contract pursuant to an agreement to sell the property. The appellant challenges the judgment and decree dated 8.7.2002 whereby the suit filed by him as O.S.No. 619 of 1995 was dismissed. 2. The parties are referred to as the plaintiff and the defendants 3. The facts leading to the present appeal in a nutshell are as under; The plaint schedule property originally belonged to Nizar Hassan, the late husband of the first defendant. He obtained the property as per gift deed No. 22/1974. The second A.S.41/2003 3 defendant is the minor son of the first defendant and her husband late Nizar Hassan. The third defendant is the son of the father of Nizar Hassan through another wife. The plaintiff is running a shop and is using item No.1 property as the godown for it. He has taken the building/shed for a monthly rent of Rs.450/- and security deposit of Rs.35,000/-. In fact, the shed in the property was constructed by him spending an amount of Rs.20,000/- out of Rs.35,000/-. The balance amount of Rs.15,000/ was paid by two installments of Rs.1,500/- on 30.12.1992 and Rs.13,500/- within the stipulated period mentioned in the rent deed. While he was holding possession of the property, on 28.4.1993 an agreement to sell was executed by Nizar Hassan and the plaintiff for sale of the property for a sale consideration of Rs.75,000/- per cent. As per the agreement, the sale deed has to be executed within a period of six months. An advance A.S.41/2003 4 amount of Rs.25,000/- and Rs.17,000/- paid as security amount was also adjusted towards the advance. Provision was also made for payment of the remaining balance amount. The possession of the property was handed over to the plaintiff but, Nizar Hassan died before execution of the sale deed. The plaintiff Is ready and willing to perform the contract. However, the legal heirs of Nizar Hassan, who are defendants 1 and 2, failed to perform the contract and did not execute the sale deed. The third defendant demanded rent alleging that, Nizar Hassan had executed a will deed bequeathing all his properties to him. A suit was filed by the defendants 1 and 2 for declaration that the will deed is an invalid one and not binding on them. The legal heirs are bound to perform the contract and due to their failure to perform the same, the suit was filed to direct them to execute the sale deed. In the alternative, to pass a decree for a realization of a sum of A.S.41/2003 5 Rs.42,000/- with interest. 4. The first defendant resisted the suit admitting the rental agreement between the plaintiff and Nizar Hasssan, but denied the allegation that Rs.35,000/- was paid as security and Rs.20,000/- was spent for the construction of the temporary shed. The building in the property was in existence even before the rental arrangement. No amount was paid on 30.12.1992 or there after as alleged. The allegation that an agreement for sale was executed by the plaintiff and Nizar Hassan on 28.4.1993 is false and no agreement was executed to sell the plaint schedule property. After the death of Nizar Hassan on 8.5.1993 under suspicious circumstances, a will deed was fabricated by the third defendant with the connivance of the step mother of Nizar Hassan. Hence, O.S.No.683 of 1993 was filed to set aside the will deed and in the alternative for partition of the property. A receiver was A.S.41/2003 6 appointed in O.S.No.683 of 1993 to collect the rent from the tenants including this property. The agreement for sale is not a genuine document and the plaintiff is not entitled to get a decree for specific performance of contract on the basis of the said agreement for sale. 5. Before the court below, the plaintiff himself was examined as PW1 and PWs 2 to 4 were examined and Exts.A1 to A9 were also marked on the side of the plaintiff. DWs 1 and 2 were examined on the side of the defendants. 6. The court below on appreciation of the evidence, concluded that the agreement for sale is a fabricated document and the plaintiff is not entitled to get a decree for specific performance of contract on the basis of Ext.A2 agreement to sell. 7. Heard the learned Senior Counsel Sri. V.V. Asokan for the appellant/plaintiff and Adv. Philip T. Varghese, the learned A.S.41/2003 7 counsel for the respondents/defendants. 8. The plaintiff is the tenant of the plaint schedule property. The defendants have admitted his tenancy in the disputed property. But the defendants 1 and 2 contended that the tenancy arrangement was not as alleged by the plaintiff in the plaint. The receipt of Rs.35,000/- as security deposit was also denied. Defendants 1 and 2 have contended that the building/shed in the plaint schedule property was in existence even prior to the rental arrangement and therefore, the allegation that out of the security amount of Rs.35,000/-, Rs.20,000/- was spent for the construction of the shed in the plaint schedule property is absolutely false. 9. The 1[st] defendant is the wife of Nizar Hassan, who expired on 8.5.1993. The 2[nd] defendant is the minor son of Nizar Hassan and the 1[st] defendant. The 3[rd] defendant is the half brother of Nizar Hassan, who is the son of his father in A.S.41/2003 8 another marriage. According to the plaintiff, on 30.12.1992 Ext. A1 rent deed was executed between himself and Nizar Hassan and thereby he was put in possession of the tenanted premises. His case is that there was no building in existence in the property when the rental arrangement was made between them and as per Ext.A1 rent deed, he was permitted to construct a temporary shed and it was specifically mentioned in the document that utilizing Rs.20,000/- out of Rs.35,000/- offered as security deposit, the building was constructed at his instance. But, according to the defendants 1 and 2, the temporary shed was in existence even at the time of the rental arrangement. It is pertinent to note that though the learned counsel for the 3[rd] defendant cross examined the plaintiff and witnesses, no oral evidence was adduced by him in support of his contentions. Ext.A1 is the rent deed dated 30.12.1992. The recital in Ext.A1 would show that a wall A.S.41/2003 9 has to be constructed in the granite foundation with bricks and with roofing of asbestos sheets, so as to form a temporary hall, with permission of the Municipality within a period of 15 days at the expense of Nizar Hassan, the 1[st] party and under the responsibility of the plaintiff, who is the 2[nd] party to the agreement. The further recitals would show that after effecting construction, electricity connection has to be obtained and on completion of the construction, rent of Rs.450/- per month excluding the current charge has to be paid by the 2[nd] party to the 1[st] party. But, it is significant to note that in para 2 of the plaint, it has been specifically stated by the plaintiff that the building was taken from Nizar Hassan on 30.12.1992 on a monthly rent of Rs.450/-. The specific averments in the plaint would reveal that the building was taken from Nizar Hassan on a monthly rent of Rs.450/- on 30.12.1992. But clause 3 of Ext.A1, would show that within A.S.41/2003 10 15 days of obtaining sanction from the Municipality, building has to be constructed and the 2[nd] party (the plaintiff) has to account the expense to the 1[st] party out of the security amount of Rs.35,000/- and if there was any balance out of Rs.20,000/- spent for construction, the same along with the amount of Rs 1,500/- paid with the balance security deposit of Rs.13,500/- have to be returned to the 1[st] party and get the key of the building and execute rent deed for the same. It is so explicit that a rent deed has to be executed at the time of handing over of the key after construction of the building/shed in the plaint schedule property. Obviously, Ext A 1 is not the actual rent deed and the possibility of having another rent deed evidencing the landlord-tenant relationship cannot be ruled out. It is also to be noted that, none of the witnesses, who had signed Ext.A1 were examined before court. So also, the scribe who is alleged to have prepared the A.S.41/2003 11 document was not examined as a witness. It is also to be noted that as per Ext.A1 an amount of Rs.1,500/- was paid by the plaintiff to Nizar Hassan on the date of execution of the document, then an amount Rs.5,000/- was paid subsequently on 9.1.1993 and Rs.7500/- on 16.1.1993 and thus in total Rs.14,000/- had been received by Nizar Hassan. 10. The said endorsements will not tally with the averment in the plaint and it is not in conformity with the pleadings. The above narrated facts would indicate that the building was in existence even before 30.12.1992 and the construction was not by the plaintiff as claimed by him. But the defendants have admitted that the building was rented out to the plaintiff for a monthly rent of Rs.450/-. Of-course the plaintiff had examined a witness to prove that he constructed the building but, as the suit is one for specific performance of contract pursuant to Ext.A2 sale agreement, the crucial A.S.41/2003 12 question or the subject -matter of the lis is whether a decree for specific performance can be granted in favour of the plaintiff. It is to be noticed that the main thrust of the argument of the plaintiff is that 3 ½ cents with a permanent shed with access, was agreed to be sold for Rs.75,000/- per cent. About the advance to be paid, the recital is to the effect that the security amount of Rs.17,000/- received in connection with the tenancy arrangement has to be adjusted apart from the amount of Rs.25,000/- paid on the date of agreement. Therefore, the plea of the plaintiff regarding advance was that an amount of Rs.42,000/- was paid. Then, for the balance amount a post dated cheque for Rs.1,00,000/- had been handed over and the remaining balance was fixed to be paid at the time of registration of the sale deed. When the centage value is Rs.75,000/-, the total sale consideration of the entire property will be Rs.2,62,500/-. Out of the same, Rs.42,000/- A.S.41/2003 13 had been paid as advance is the definite case of the plaintiff. According to the plaintiff a post dated cheque for Rs.1,00,000/- was handed over towards the sale consideration. But as per the rental arrangement Rs.20,000/had been utilized for construction of the building/shed. If that be so, the balance would only be Rs.15,000/-. So, there was no possibility to adjust Rs.17,000/- so as to make the advance amount as Rs.42,000/-. It was contended that the plaintiff was ready and willing to perform his part of the contract, but due to the sudden death of Nizar Hassan the document was not executed. The facts on record would show that no legal notice was sent by the plaintiff before filing of the suit. As the execution of the document is denied all the circumstances involved have to be evaluated to verify whether the defendants are assigning untenable reasons. It is pertinent to note that it has come on record that the plaintiff was maintaining A.S.41/2003 14 account for the payments effected by him in connection with the sale agreement and more particularly as per his deposition after execution of the agreement to sell, entries were made in his account books. He had further testified that his mother helped him financially to pay the advance of Rs.45,000/- and that was also entered in the account book and he could produce the same, but it is important to note that he did not produce the same. It is also relevant to note that he had no case that before execution of the agreement to sell, he had verified the title deed of Sri. Nizar Hassan pertaining to the property. No prudent person would attempt to purchase a property without being satisfied of the title deed of the vendor. 11. It is vehemently argued by the learned counsel for the defendants 1and 2 that Ext.A2 was the outcome of fabrication of documents with the intention of defeating their rights. A.S.41/2003 15 Ext.A2 is seen signed by two witnesses namely by one Geevarghese Antony and one P.T. Joseph. Though the execution of Ext.A2 was challenged, they were not examined by the plaintiff to prove that such a document was executed. The failure of the plaintiff to examine the witnesses to the document especially when Nizar Hassan was not available to depose his case, is definitely fatal to the case of the plaintiff. Instead of the examination of the witnesses to the document, the scribe was examined as PW3. He testified that a register is maintained in his office with the details of the documents executed by him. But at that point of time, no register was maintained and so no document was available in his office to prove that such a document was prepared in his office. According to the defendants 1 and 2 Nizar Hassan did not execute such a document with the intention to alienate his property which is located in the heart of Changanassery town A.S.41/2003 16 for a meager sum of Rs.75,000/- per cent, as it would fetch at least an amount of Rs . 10,00,000/ - per cent at that point of time. It is most significant to note that when the plaintiff was cross-examined on that aspect he deposed that it was not necessary for him to make an enquiry regarding the market value prevalent at that point of time and he was not aware of the market value of the property. The death of Nizar Hassan was on 8.5.1993 and the alleged document was seen executed on 28.4.1993. Though, Sri.P.T. Joseph and Sri.Geevarghese Antony stood as witnesses to Ext. A2 document, they did not appear before the court below to speak about the execution of the document by Nizar Hassan to fortify that the document was actually executed by him agreeing to sell his property. It is also to be noted that though there was specific denial of the execution of Ext.A2 document, there was no attempt on the side of the plaintiff to adduce reliable evidence to establish A.S.41/2003 17 that Ext.A2 document was actually executed by Nizar Hassan agreeing to sell his property. The evidence adduced by him was mainly to appear that he constructed the shed and so, not worthy of any credence as far as the suit for specific performance is concerned especially when the suit document itself is under dispute. 12. It is pertinent to note that the defendants 1 and 2 herein had filed O.S.No.683/1993 before the Sub Court, Kottayam challenging the execution of the will by Nizar Hassan bequeathing his property in favour of the 1[st] defendant therein who is the 3[rd] defendant in this case. That suit was dismissed by the trial court by a judgment dated 30.6.1999. The said judgment was challenged before this Court in A.S. No.220 of 2001 and a Division Bench of this Court confirmed the finding of the court below. It is pertinent to note that the genuineness of the will alleged to have been executed by A.S.41/2003 18 Nizar Hassan and his signature in the document was in dispute in that suit and hence, the documents were forwarded for examination before the Forensic Science Laboratory, Thiruvananthapuram where the signature of Nizar Hassan was subjected to examination by expert and in expert examination it was found that the signature in the will deed has similarities with the standard signatures forwarded for examination. Though the parties to the present suit are also parties in that case, the evidence adduced in that case cannot be considered in this case and there was no application to accept those documents in this case by producing the same. Of-course relying on the decision of Kessarbai v. Jethabhai Jivan (AIR 1928 Privy Council 277) the learned senior counsel pointed out that genuineness of a signature cannot be determined by mere comparison with admitted signatures without the aid in evidence of microscopic enlargements or A.S.41/2003 19 any expert advice. It is true that some observations were made by the trial court regarding that. But it is doubtless, that the plaintiff was not vigilant enough to forward the disputed signature in this case to the Forensic Laboratory for examination to substantiate his case that the document in question was a genuine one executed by Nizar Hassan with the intention to alienate the property. The plaintiff had approached the court for a decree in his favour on the basis of the disputed document. The burden to prove the execution of A2 is on the person, who wants to get relief in the suit. If only the plaintiff is able to discharge his burden by adducing reliable evidence he can succeed in the case. Therefore, the burden to establish the genuineness of the document was on the plaintiff. 13. The glaring circumstances discussed above would show that the plaintiff who approached the court for a decree A.S.41/2003 20 for specific performance of the contract could not prove his case that Ext.A2, the agreement to sell, is a genuine document. Of course, the learned counsel for the plaintiff had pointed out that the signature of Nizar Hassan has not been specifically denied by the defendants 1 and 2. He relies on the decision of the Apex Court in Union of India v. E.I.D.Parry (India ) Ltd (AIR 2000 SC 831) to argue that a question which did not form part of the pleadings or not the subject matter of any issue, could not be decided by the court. But here, it is discernible from their pleadings and evidence that the execution of the said document was zealously denied and disputed by them. When the execution of the document by Nizar Hassan was stoutly denied by the defendants 1 and 2, there is no merit in saying that the signature was not disputed by them. The specific pleading was that Nizar Hassan had never entered into an agreement with the plaintiff for sale of A.S.41/2003 21 the property and the document is not a genuine one . It was also specifically contended that the plaintiff was put in possession of the property as per a lease arrangement and continues to be a tenant with the liability to pay rent . Since the plaintiff has approached the court for a decree for specific performance of the contract on the basis of Ext.A2, the burden is upon him to prove the execution of the same. So, it could be concluded that the plaintiff had miserably failed to establish that the document in question was a genuine one so as to get a decree for specific performance. Therefore, the question as to whether the plaintiff was ready and willing to perform his part of contract or whether the defendants 1 and 2 were ordered to return any amount received as advance etc does not raise for consideration. 14. In view of all these facts, I find that the court below has analyzed the testimony of witnesses correctly to find out A.S.41/2003 22 the vitiating circumstances surrounded the suit document and concluded that the plaintiff was not entitled to get a decree for specific performance of the contract pursuant to Ext.A2 and that the plaintiff failed to establish the genuineness of the same. Having gone through the entire evidence meticulously, I find that the appeal is devoid of any merit. The learned senior counsel for the plaintiff/appellant also canvassed for a remand. But above discussed factual background do not prompt this court to accept the prayer for remand of the case. Therefore, the judgment and decree of the court below are only to be confirmed and I do so. Accordingly, the appeal is dismissed. The parties shall bear their respective costs. **Sd/-** **SHIRCY V.** **JUDGE** **sb**