Salu Pappachan v. Sivan Pillai

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE K.ABRAHAM MATHEW** **MONDAY, THE 19TH DAY OF FEBRUARY 2018 / 30TH MAGHA, 1939** **RFA.(INDIGENT) No. 468 of 2017** ## **AGAINST THE JUDGMENT & DECREE DATED 29.02.2016 IN OS 22/2013 OF SUB COURT, KARUNAGAPPALLY** ## **APPELLANT(S)/DEFENDANT** ## **SALU PAPPACHAN** **(DIED)** **AGED 59, S/O. PAPPACHAN, KARAMCHERIYIL PUTHEN VEEDU, MALANADA WARD, PUTHUR VILLAGE, KOTTARAKKARA TALUK, KOLLAM DISTRICT, REPRESENTED BY HIS SON/POWER OF ATTORNEY HOLDER SIJO SALU, AGED 22, S/O. SALU PAPPACHAN, KARAMCHERIYIL PUTHEN VEEDU, MALANADA WARD, PUTHUR VILLAGE, KOTTARAKKARA TALUK, KOLLAM DISTRICT.** **ADDL.A2.SIJO SALU, AGED 23, S/O LATE SALU PAPPACHAN, KARAMCHERIYIL PUTHENVEEDU, PUTHOOR P.O., KOLLAM - 691507** **ADDL.A3.STEPHY SALU, AGED 21, D/O LATE SALU PAPPACHAN, KARAMCHERIYIL PUTHENVEEDU, PUTHOOR P.O., KOLLAM - 691507** **ADDL.A4.SARAMMA PANICKER, AGED 46, W/O LATE SALU PAPPACHAN, KARAMCHERIYIL PUTHENVEEDU, PUTHOOR P.O., KOLLAM - 691507** _*** LEGAL HEIRS OF SOLE APPELLANT ARE IMPLEADED AS ADDITIONAL APPELLANTS 2 TO 4 AS PER ORDER DATED 09.06.2017 IN IA NO.975/2017**_ **BY ADV.SRI.V.PHILIP MATHEWS** ## **RESPONDENT(S)/PLAINTIFF:** **SIVAN PILLAI S/O. KRISHNAN, KUMAR BHAVANAM, THAZHAM MURI, PAVITHRESWARAM VILLAGE, KOTTARAKKARA TALUK, KOLLAM DISTRICT.** **BY SRI.K.S.HARIHARAPUTHRAN SRI.M.D.SASIKUMAR SRI.GEORGE MATHEW SRI.A.G.SUNIL KUMAR SRI.DIPU JAMES** **THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 19-02-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **K. ABRAHAM MATHEW, J.** -------------------------------------------------- R.F.A. (Indigent) No. 468 of 2017 -------------------------------------------------Dated this the 19[th] day of February, 2018 ## **J U D G M E N T** The appellant and the respondent were the defendant and the plaintiff in OS No.22/2013 on the file of Sub Judge, Karunagappally, which was a suit for specific performance of an agreement for sale of the plaint schedule immovable property belonging to the former. The allegation of the respondent was that on 01.11.2012 he entered into an agreement with the appellant for sale of the property for Rs.7,50,000/(Rupees seven lakhs and fifty thousand only) and on the date of agreement itself he paid the appellant Rs.6,50,000/- (Rupees six lakhs and fifty thousand only) towards the sale consideration. The time for completion of the transaction was 01.01.2013. On 19.12.2012 the respondent issued a notice demanding the appellant to execute the sale deed after receiving the balance sale consideration. The appellant refused to comply with the R.F.A. (Indigent) No. 468 of 2017 **==> picture [20 x 8] intentionally omitted <==** demand. The respondent sought for a decree for specific performance and in the alternative for refund of Rs.6,50,000/- paid towards the sale consideration. In his written statement the appellant denied agreement for sale and receipt of Rs.6,50,000/- as alleged in the plaint. According to him, the respondent is a money lender. One Kamarudeen, a friend of the appellant, borrowed from the respondent Rs.1,00,000/- and as a security for the repayment of the loan, the respondent obtained from the appellant signed blank stamp papers and signed blank cheques. Kamarudeen repaid the amount. But, the respondent unauthorizedly wrote up on the signed blank stamp paper, the agreement for sale relied on by him. The lower court decreed the suit granting the respondent the relief of specific performance of the agreement. This is challenged in this appeal. 2.The following points arise for consideration: - (1)has there been an agreement between the appellant R.F.A. (Indigent) No. 468 of 2017 **==> picture [20 x 8] intentionally omitted <==** and the respondent for sale of the plaint schedule property? - (2)Did the respondent pay the appellant Rs.6,50,000/(Rupees six lakhs and fifty thousand only) in advance towards the sale consideration? - (3)Whether the trial court was justified in decreeing the suit? - 3.Heard the learned counsel for the appellant and the respondent. - 4.One of the issues framed by the trial court is whether Ext.A1 contract was executed by the defendant. But, it did not frame an issue whether there has been an agreement between the appellant and the respondent for sale of the plaint schedule property. 5.The learned Sub Judge discussed the weakness of the appellant's case and thereafter held: “Eventhough, the execution of Ext. A1 is proved, some doubts remain there regarding the nature of the actual transaction. Whether it was a real property transaction, is doubtful.” R.F.A. (Indigent) No. 468 of 2017 **==> picture [20 x 8] intentionally omitted <==** (sic). It is in spite of this, he granted the respondent a decree for specific performance. 6.The specific contention of the respondent is that he did not enter into an agreement for sale with the respondent. Ext.A1 is the agreement for sale relied on by the respondent. The respondent, who was examined as PW1, has not even deposed that he witnessed the appellant signing Ext.A1 agreement. Same is the case with PW3. He also does not claim that he has seen the appellant signing the agreement. 7.PW2, who claims to be the scribe of the agreement for sale, has testified that she saw the appellant execute the agreement. She is not shown as a witness in Ext.A1 agreement for sale. Her deposition proves that she is a licenced document writer. This is not shown in Ext.A1 agreement for sale. Rule 18 of the Kerala Document Writers' Licence Rules, 1960 (for short, “the Rules”) provides that every non-testamentary document prepared by a document writer and transcribed by a R.F.A. (Indigent) No. 468 of 2017 **==> picture [20 x 8] intentionally omitted <==** scribe shall be attested by them in the prescribed manner. It is prescribed that the name in full with licence No. of the document writer and the scribe shall be shown in the document and they shall put their signatures in it. This was not complied with in the present case. So, it is very clear that it was not in the ordinary course of business PW2 prepared the document. There is no explanation for not complying with the provision in Rule 18 of the said Rules. It is evident that Rule 19 of the Rules, which mandates that a document writer shall maintain a register in form E and a receipt book with counterfoil in form F and shall give receipts for all moneys received on account of work connected with every document prepared by him, was not complied with. 8.PW2 deposed that she purchased the stamp paper from a vendor at Kottarakkara. It is seen from Ext.A1 that the stamp paper was purchased from a stamp vendor at Ezhukone. There cannot be any doubt that the evidence R.F.A. (Indigent) No. 468 of 2017 **==> picture [20 x 8] intentionally omitted <==** of PW2 is false. She is not a reliable witness. It is very difficult to act upon her evidence that she saw the appellant signing Ext.A1 agreement for sale. 9.The respondent has failed to adduce evidence to prove that Ext.A1 was executed by the appellant. 10.PW2 admitted in the cross-examination that he wrote three agreements for sale in respect of the plaint schedule property. Exts.B3 & B4 (the marking is wrong) are photocopies of two such agreements. The validity or probative value of these documents is immaterial. The agreement referred to Ext.B1 notice sent by the respondent to the appellant is another agreement. Ext.A1 is yet another agreement, which also is in the handwriting of PW2. Ext.B2 bears the date 20.10.2011, Ext.B3 bears the date 29.10.2011 and Ext.B4 bears the date 28.07.2012. The agreement referred to in Ext.B1 bears the date 16.02.2012 and Ext.A1 bears the date 01.11.2012. What are the circumstances in which PW2 wrote these agreements? It is not known. R.F.A. (Indigent) No. 468 of 2017 **==> picture [20 x 8] intentionally omitted <==** 11.It was deposed by PW1 (respondent) that there was an earlier agreement for sale between himself and the appellant for sale of the plaint schedule property. In or about May, 2012, the respondent sent Ext.B1 notice to the appellant informing him about an agreement for sale he had entered into with the appellant for sale of the plaint schedule property in this case on 16.02.2012 for Rs.8,00,000/- (Rupees eight lakhs only) and received. By the notice, the respondent demanded him to execute the sale deed on 31.05.2012. But, the appellant did not comply with the notice. The respondent would say that the appellant told him that his relatives did not want him to sell the property. There is no dispute that the respondent did not take any action. After six months, the appellant allegedly entered into Ext.A1 agreement for sale with the respondent in respect of the very same property for a lesser amount, i.e., Rs.7,50,000/- (Rupees seven lakhs and fifty thousand only). This is unbelievable. It is equally R.F.A. (Indigent) No. 468 of 2017 **==> picture [20 x 8] intentionally omitted <==** unbelievable that the respondent paid Rs.6,50,000/(Rupees six lakhs and fifty thousand only) in advance towards the sale consideration out of the total sale consideration of Rs.7,50,000/- (Rupees seven lakhs and fifty thousand only) even though the appellant had refused to sell him the property pursuant to the earlier agreement. 12.The respondent would say that on the date of Ext.A1 agreement for sale, he paid the appellant Rs.6,50,000/(Rupees six lakhs and fifty thousand only). But, he was not given possession of the property, nor the title deeds of the property. It is not at all believable that he would part with Rs.6,50,000/- (Rupees six lakhs and fifty thousand only) without getting possession or custody of the title deeds of the property, especially, in the light of the fact that the appellant refused to sell the property to him pursuant to the agreement earlier executed between them. 13.The appellant has also a case that the respondent did R.F.A. (Indigent) No. 468 of 2017 **==> picture [20 x 8] intentionally omitted <==** not have the means to pay the sale consideration, which, according to him, would show that the transaction alleged is not true. The respondent (PW1) deposed that he sold a property situated at Alleppey and the sale proceeds was sufficient for him to purchase the property. First he said that the document was registered at Ambalappuzha Sub Registrar's Office. When he realized that a document in respect of a property situated in Alleppey cannot be registered at Ambalappuzha, he said that the document was registered at Alleppey Sub Registrar's Office. Ext.A7 is said to be the certified copy of the sale deed. The sale consideration shown in it is Rs.6,66,000/- (Rupees six lakhs and sixty six thousand only). But, his evidence is that it was sold for Rs.9,00,000/- (Rupees nine lakhs only). On his own showing he is not a trustworthy witness. 14.The learned counsel for the respondent submits that the contention of the appellant that the agreement for R.F.A. (Indigent) No. 468 of 2017 **==> picture [26 x 8] intentionally omitted <==** sale was wrote up on a signed blank stamp paper is not correct, which, according to him, is clear from the appearance of the document itself. He has brought to my notice the fact that the signature of the appellant in it appears over the contents of the agreement. That appears to be correct also. But, that alone cannot be a ground to hold that there has been an agreement for sale between the parties. 15.Learned counsel for the respondent submitted that in his cross-examination the appellant (DW1) admitted that Kamarudeen has close acquaintance with the respondent and there was no transaction between them. That is true. That is not inconsistent with his defence. His evidence reveals that Kamarudeen developed close acquaintance with the respondent after the former started visiting him every month to pay the interest of the loan. According to the appellant as Kamarudeen had no acquaintance with the respondent earlier, he (the appellant) obtained the loan for him. It R.F.A. (Indigent) No. 468 of 2017 **==> picture [26 x 8] intentionally omitted <==** means that there was no direct dealing between the respondent and Kamarudeen. 16.The learned counsel appears for the respondent further submits that a decision shall be taken on probabilities. He relies on the decisions of the Supreme Court in **Gopal Krishnaji Ketkar** v. **Mohamed Haji Latif & Others** [AIR 1968 SC 1413], **Rebti Devi** v. **Ram Dutt & Another** [AIR 1998 SC 310] and **M. Krishnan** v. **Vijay Singh & Another** [(2001) 8 SCC 645]. There cannot be any controversy that a civil case cannot be disposed of on probabilities. At the same time, it is also well settled that a plaintiff cannot win a case on the weakness of the defendant's case. The former has to win his case on his own strength. Weakness in the evidence of the defendant cannot be the sole ground to pass a decree in favour of the plaintiff. Here is a case where the plaintiff (respondent) failed to prove that there has been an agreement for sale between the parties. The witnesses examined by R.F.A. (Indigent) No. 468 of 2017 **==> picture [26 x 8] intentionally omitted <==** him are not at all reliable. Their evidence is false. The facts and circumstances also compel me to hold that there has been no agreement for sale between the appellant and the respondent as alleged in the complaint. The lower court failed to appreciate the evidence in its right perspective. The view taken by it is wrong. The decree is liable to be set aside. In the result, this appeal is allowed. The judgment and the decree of the lower court are set aside. The suit is dismissed. Sd/- **K. ABRAHAM MATHEW JUDGE** bka/