Retnamma (Died) and Legal Heirs Impleaded v. Mustafa (Died) LR's Impleaded

# IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: ## THE HONOURABLE MR. JUSTICE K.ABRAHAM MATHEW MONDAY, THE 26TH DAY OF FEBRUARY 2018 / 7TH PHALGUNA, 1939 ## **RFA.No. 199 of 2008** AGAINST THE JUDGMENT AND DECREE IN O.S.No.114/2007 of SUB COURT, PERUMBAVOOR DATED 22-11-2007 ## APPELLANT/DEFENDANT: RETNAMMA, (DIED), LEGAL HEIRS IMPLEADED. W/O.SOMASEKARAN, MELATH HOUSE, SOUTH VAZHAKULAM, VAZHAKULAM VILLAGE, KUNNATHUNADU TALUK. ## ADDL.APPELLANTS IMPLEADED ADDL.A2 SOMASEKHARAN, AGED 65 YEARS, S/O.MELETH NARAYANAN, SOUTH VAZHAKKULAM, VAZHAKKULAM VILLAGE, KUNNATHUNAD TALUK ADDL.A3 SMITHA SOMASEKHAR, AGED 36 YEARS, D/O.SOMASEKHARAN & RETNAMMA, MELETH HOUSE, SOUTH VAZHAKKULAM, VAZHAKKULAM VILLAGE, KUNNATHUNAD TALUK LEGAL HEIRS OF DECEASED APPELLANT ARE IMPLEADED AS ADDL.A2 & A3 AS PER ORDER DATED 29.5.2015 IN I.A.NO.682 OF 2015. BY ADVS.SRI.K.S.BABU SMT.N.SUDHA ## RESPONDENT/PLAINTIFF: MUSTAFA, (DIED) LR'S IMPLEADED S/O.KOCHUMOHAMMED, PALLATHUKARA HOUSE, VENGOLA VILLAGE, KUNNATHUNADU TALUK ## **RFA.No. 199 of 2008** ## **-2-** ## ADDITIONAL RESPONDENTS IMPLEADED ADDL.R2. P.K.KHADEEJA, AGED 63 YEARS, W/O.LATE MUSTAFA, PALLATTUKARA HOUSE, VENGOLA VILLAGE, KUNNATHUNADU TALUK, NOW RESIDING AT MUTHAYIL HOUSE, EDAPPALLY NORTH PO, THRIKKAKARA NORTH VILLAGE, KANAYANNOOR TALUK, ERNAKULAM DISTRICT. ADDL.R3 VAHIDA ILLYAS, AGED 42 YEARS, D/O.MUSTAFA, PALLATTUKARA HOUSE, VENGOLA VILLAGE, KUNNATHUNADU TALUK, NOW RESIDING AT VATHIYEDATH HOUSE, WEST VELIYATHUNAD PO, KARUMALOOR VILLAGE, PARAVOOR TALUK, ERNAKULAM DISTRICT. ADDL.R4 SAHIDA HANEEFA, AGED 40 YEARS, D/O.LATE MUSTAFA, PALLATTUKARA HOUSE, VENGOLA VILLAGE, KUNNATHUNADU TALUK, NOW RESIDING AT MUTHAYIL HOUSE, EDAPPALLY NORTH PO, THRIKKAKARA NORTH VILLAGE, KANAYANNOOR TALUK, ERNAKULAM DISTRICT LEGAL REPRESENTATIVES OF DECEASED RESPONDENT ARE IMPLEADED AS ADDITIONAL R2 TO R4 AS PER ORDER DATED 26.7.2012 IN I.A.NO.1677/2012 R2-R4 BY ADVS. SRI.T.K.SAJEEV SRI.VIPIN NARAYAN THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 26-02-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: cms ## **K.ABRAHAM MATHEW J.** --------------------------------------- R.F.A.No.199 of 2008 ----------------------------------------Dated this the 26[th] day of February, 2018 ## **JUDGMENT** In this appeal filed by the defendant she challenges the decree passed in favour of the respondent for specific performance of Ext A1 agreement for sale. The respondent instituted the suit on the allegation that on 24.11.2005 he entered into an agreement with the appellant for sale of the plaint schedule property for Rs.Five lakhs and on the date of the agreement he paid her Rs.One lakh in advance towards the sale consideration; the transaction had to be completed by executing the sale deed in four months. Though the respondent has been ready and willing to perform his part of the contract, the appellant refused to execute the sale deed. In her written statement the appellant denied agreement for sale and payment of Rs.One lakh in advance towards the sale consideration. She raised the contention that the respondent is a money lender and she borrowed from him Rs.Fifty thousand in November, 2005 undertaking to pay interest every month till the principal was paid. As a security for the repayment of the loan he obtained from her a signed blank stamp paper and signed blank white papers. He also obtained her husband's signatures in white blank papers. She used to pay interest every month for some period later, she could not. So he wrote up an agreement for sale on the signed blank paper and the signed white papers he had obtained from her and her husband, and that is the one relied on by him in the suit. She prayed for dismissal of the suit. 2. The trial court entered a finding that since the appellant, and her R.F.A.No.199 of 2008 2 husband who was examined as PW4 to prove that he attested the agreement, admitted their signatures in the agreement for sale its execution has been proved. It accepted the evidence of PW2 and PW3 who gave evidence in support of the respondents. The judgment and the decree are challenged. 3. The following points are arose for consideration. a) Has there been an agreement between the appellant and the respondent for sale of the plaint schedule property? b) Did the appellant receive from the respondent Rs.One lakh in advance towards the sale consideration? c) Whether the judgment and the decree of the lower court are liable to be set aside? 4. Heard the learned counsel for the appellant and the respondent. 5. The respondent/plaintiff was examined as PW1. He deposed that on 24.11.2005 he entered into Ext A1 agreement with the appellant/defendant for sale of the plaint schedule property for Rs.Five lakhs and paid her Rs.One lakh in advance towards the sale consideration. He has been ready and willing to perform his part of the contract. Though he issued a notice to the appellant to appear in the office of the Sub Registrar concerned to execute the sale deed after receiving the balance sale consideration, she did not comply with it. To prove execution of Ext A1, the appellant relied on the evidence of PW3 and to prove that Ext A1 was prepared on the instructions of the appellant and her husband, he relied on the evidence of PW2. On the other hand, the appellant, who was examined as DW1, deposed that there has been no agreement between her and the respondent and Ext A1 was written up on a signed blank R.F.A.No.199 of 2008 3 stamp paper and signed blank white papers on which the respondent had obtained the signatures of herself and her husband when she borrowed Rs.50,000/- from him. She would say that the respondent obtained from her copies of her title deeds and other documents also. She examined DW2 to prove that the transaction was a loan. 6. In the cross-examination of the respondent, who was examined as PW1, he admitted that he did not know the market value of the property in the locality in which the plaint schedule property is situated and no value was fixed for the house situated in the plaint schedule property, he did not know the area of the house situated in the property. It is clear that he has no idea about the plaint schedule property. This indicates that he had no intention to purchase the property. 7. The extent of the plaint schedule property is 12 Ares and 30 Sq.m. (about 30 cents). There is a residential building on it. The total sale consideration shown in Ext A1 agreement for sale is Rs.Five lakhs. It came out in the evidence of PW3, who gave evidence in support of the respondent, that the market value of the property in the locality is between Rs.Five thousand to Rs.One lakh per cent. By no stretch of imagination it can be believed that the plaint schedule property would fetch only Rs.Five lakhs on a sale. The amount shown in Ext A1 agreement for sale is far below the actual market value. 8. The appellant has also a case that the respondent had no financial capacity to purchase the property. Relying on the decision of the Supreme Court in **Sukhbir Singh & others v Brij Pal Singh & others (1997) 2 SCC 200** learned counsel for the appellant submitted that it is sufficient for the R.F.A.No.199 of 2008 4 respondent to prove that he had the capacity to pay the sale consideration. There is no controversy about it. But by reliable evidence he has to prove that he had that capacity. Admittedly, the respondent had no property in his ownership. Though he claimed that he was working as a security officer in a company, the unchallenged testimony of DW2 proves that he was working as a watchman in a company. He was aged 59 during the trial of the suit. He did not have a single rupee with him to pay the sale consideration. He would say that the source of money was sale proceeds of his daughter's property and the money withdrawn from her bank. But for the reasons best known to him he did not examine his daughter as a witness, nor did he produce any document to prove sale of the daughter's property or withdrawal of money from her account. The learned counsel for the respondent has brought to my notice the decision of the Supreme Court in **Indira Kaur (Smt) & others v Sheo Lal Kapoor (1988(2) SCC 488)** in support of his argument that it was not necessary to examine the respondent's daughter or produce any document. In that decision the Supreme Court observed: “the defendant did not enquire from the plaintiff either the name of the bank in which he had deposited the amount or whether he had any passbook in respect of the said bank account. Nor was the plaintiff called upon to produce the passbook either by the defendant or by the court, at the instance of the defendant or on its own”. But a three judge bench of the Supreme Court in **Kundan Lal Rallaram v Custodian, Evacuee Property, Bombay (AIR 1961 SC 1316)** held that if a party to a suit who claims to have in his custody documents which would prove his case withholds them even on the ground that the other party did not ask R.F.A.No.199 of 2008 5 him to produce them, the court has to draw an inference against him. That was a case where there was a presumption under Section 118(a) of Negotiable Instruments Act. So the failure of the respondent to examine his daughter as a witness or to produce documents to prove that he had money with him is fatal. 9. Learned counsel for the respondent submitted that the presence of the respondent at the office of the Sub Registrar was sufficient to prove that he had necessary funds with him, for which he relies on the decision in **Sukhbir Singh'** s case (supra). In the present case the appellant attempted to prove that the respondent had no capacity to pay the sale consideration not to disprove the latter's allegation that he has been ready and willing to perform his part of the contract, but that the transaction alleged by him is not true. 10. The scribe who prepared Ext A1 agreement for sale was examined as PW2. She is a licensed document writer. She deposed that at the request of the appellant and her husband (PW4) she wrote Ext A1 agreement for sale. But her name is not disclosed in Ext A1 agreement. Under Rule 18 of the Document Writers' License Rules she was bound to disclose her identity and license number in the document. Under Rule 19 she was bound to maintain a register for the documents she prepared. That has not been done in the case of Ext A1. So I have no doubt that Ext A1 was not prepared in the ordinary course of her business. It was prepared in suspicious circumstances. She is not a reliable witness. The learned Sub Judge fell in error in acting upon her evidence. 11. To prove execution of Ext A1 agreement for sale the respondent examined PW3 Vasu. He claimed that he was a broker for the deal between the appellant and the respondent. This is very strange. Even the respondent has R.F.A.No.199 of 2008 6 no such case. PW3 is an overzealous witness. He has no case that he went to the office of PW2 along with the appellant and her husband in connection with the preparation of Ext A1 agreement for sale. But the respondent (PW1) would say that PW2 also was with them when they went to the office of PW2. PW3 has attested Ext A1 agreement. He remembered the date on which he attested the document. He even remembered the order in which four persons put their signatures in the document. He was asked why his address was not shown in Ext A1 agreement for sale, it was suggested to him that there was no space to accommodate his address. His response was that as it was not known, it was not recorded. He is not a trustworthy witness. 12. The definite case of the appellant is that the respondent is a money lender and he obtained from her signed blank stamp paper and signed blank white papers when she borrowed Rs.Fifty thousand from him. The unchallenged testimony of DW2 proves that the respondent is a money lender. That apart, it came out in the evidence of PW2 document writer that the respondent used to approach her for preparing agreements for sale. How he could enter into several agreements for sale when he had no money to purchase properties. It is crystal clear that he was a money lender and he used to lend money after obtaining agreements for sale from his borrowers. 13. The cause of action for the suit is said to be the refusal of the respondent to appear before the Sub Registrar's Office to execute the sale deed in response to the notice issued by the respondent. His crossexamination the respondent (PW1) stated that he went to measure the property. But the appellant objected to it. She told him that he would not sell R.F.A.No.199 of 2008 7 his property. This is not revealed in his pleadings. He would say that he had engaged a counsel to issue a notice to her when she refused to allow him to measure the property. But he did not know whether the Advocate sent any notice. 14. As mentioned earlier, the appellant who was examined as DW1 testified that she did not enter into an agreement with the respondent for sale of the property and Ext A1 was written up on a signed blank stamp paper and signed blank white papers the respondent had obtained from her and her husband when she borrowed from him Rs.Fifty thousand. This received in support in the evidence of her husband (PW4) and DW2. I do not find any reason to disbelieve their evidence. 15. The learned Sub Judge held that the appellant failed to explain how the respondent happened to be in custody of photocopies of the title deeds and other documents relating to the property. This is wrong. She has stated in her pleadings and testimony that when she borrowed money the respondent obtained from her photocopies of those documents. 16. At last learned counsel for the appellant submitted that the court shall not exercise its discretion in favour of a party who denies entering into agreement for sale after signing the agreement. He seeks support from the decision of the Supreme Court in **Zarina Siddique v A.Ramalingam (2015)1 SCC 705** . That was a case where the agreement was a registered one and its execution was proved. The decision is not applicable to the facts of the case. 17. The learned Sub Judge failed to analyse the evidence properly, which led him to reach wrong conclusions. The allegations in the plaint that there was R.F.A.No.199 of 2008 8 an agreement between the appellant and the respondent for sale of the plaint schedule property and the former received from him Rs.One lakh in advance towards the sale consideration are false. The suit was liable to be dismissed with costs. The judgment and the decree of the lower court are liable to be set aside. In the result, this appeal is allowed. The judgment and the decree of the lower court are set aside and the suit is dismissed with costs. The appellant is entitled to her costs in this court also. **K.ABRAHAM MATHEW JUDGE** cms