SANTHA W/O PARATHATTIL RATHAN v. DAVIS S/O PALISSERI THOMA

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE SHIRCY V.** **MONDAY, THE 23RD DAY OF SEPTEMBER 2019 / 1ST ASWINA, 1941** ## **RFA.No.548 OF 2008** **AGAINST THE JUDGMENT IN OS 27/1997 DATED 19-02-2008 OF PRINCIPAL SUB COURT,THRISSUR** ## **APPELLANT/DEFENDANT:** **SANTHA W/O PARATHATTIL RATHAN, BACK SIDE OF NOITHILAKKAVU TEMPLE, KUTTUR DESOM, THRISSUR** **BY ADVS. SRI.S.M.PREM SRI.S.S.HUSSAIN SRI.P.K.NIJOY SMT.K.P.SANTHI** ## **RESPONDENT/PLAINTIFF & DEFENDANTS 2 TO 9:** **DAVIS S/O PALISSERI THOMA, PUDUKKAD, VIYYUR, THRISSUR** **R1 BY ADV. SRI.G.SREEKUMAR CHELUR** **THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 23.09.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** RFA.548/2008 2 ## **JUDGMENT** The defendant in O.S.No.27/1997 on the file of the Principal Sub Court, Thrissur has come up with this appeal challenging the judgment and decree dated 19.2.2008 passed against him. 2. The parties are referred to as they are ranked before the court below. 3. Brief facts of the case are as follows: The defendant is the owner in possession of 57 cents of land comprised in Sy.No.718/4 and 37 cents of land in Sy.No.924/2 of Kuttoor village. She agreed to sell the property to the plaintiff as per an agreement dated 14.9.1995 for a total sale consideration of Rs.2,00,000/-. The period fixed in the agreement for execution of the sale deed was three months from 14.9.1995. An advance amount of Rs.1,43,950/- was also paid to the defendant by the plaintiff. But the defendant refused to execute the sale deed in spite of repeated demands. Hence, the suit was filed by the plaintiff for specific performance of contract with alternative prayer for realization of money. 4. The defendant denied the execution of the sale agreement and contended that no such agreement was executed by her RFA.548/2008 3 agreeing to alienate the property in favour of the plaintiff and the document relied on is a forged one. In the additional written statement filed by the defendant she contended that her husband had some real estate business with one Jose and in that business relationship he had entrusted some blank papers and printed forms affixing signatures to him and Jose had misused those signed printed forms by colluding with the plaintiff and thus the suit was filed. It was as a result of a collusion between the plaintiff and Jose. Hence, the suit is only to be dismissed. 5. Before the court below, necessary issues were raised on the basis of the pleadings by the parties and evidence was let in. On the side of the plaintiff PWs1 to 3 were examined and on the side of the defendant DWs1 and 2 were examined. No documentary evidence was produced by the defendant. The court below on evaluation of the entire evidence adduced by the parties concluded that the plaintiff is not entitled to get a decree for specific performance of contract. But it was found that the plaintiff is entitled to get back the amount of Rs.1,43,750/- with interest from the defendant. The said finding has been challenged by the defendant in this appeal. RFA.548/2008 4 6. The property involved in this transaction is in total have an extent of 94 cents, comprised in two different survey numbers of Kuttur village. The plaintiff would rely on Ext.A1 agreement to get a decree for specific performance of contract. At the outset, it is to be noted that the suit for specific performance of contract was declined by the court and only a decree for return of money was granted. The challenge is by the defendant, aggrieved by the direction to return Rs.1,43,750/- to the plaintiff. It is pertinent to note that though in the original written statement filed by the defendant there was no contention that Ext.A1 was forged by the plaintiff in collusion with one Jose, the business partner of the defendant's husband in real estate business. In the additional written statement it was contended that a forged document was created by misusing the blank stamp papers and blank printed forms in the possession of Jose in order to snatch away her property where she was residing with her family. Since such a contention was raised by the defendant, it is necessary to verify and ascertain whether the contention raised that the document is a forged one or not ?. 7. Ext.A1 agreement is dated 14.9.1995. Of course, the RFA.548/2008 5 first page of Ext.A1 is a handwritten one, but the second page is a printed form where the gap was filled up in the handwriting of the scribe who was examined as PW2. PW2, a document writer by profession deposed that the plaintiff and the defendant are persons known to him and he had prepared it at the office of one Alex where he was attached to, for his work and after preparing the document, the contents were read over to the parties and the advance amount was received by the defendant from the plaintiff. According to him Ext.A1 was executed at about 11.30 and 12 noon and the amount was handed over to the defendant by the plaintiff. He has also deposed that at the time of execution of the document one or two clients were also there and he had seen the plaintiff for the first time, but Jose was known to him prior to the transaction as an agent of property transaction. He had also made it clear that only on the request from the side of the parties concerned, stamp paper will be purchased and there was no practice of purchasing stamp papers at an earlier point of time and all the details will be entered in the document only as per the direction of the parties. According to him the document was executed as directed by Jose and Davis (the plaintiff). In RFA.548/2008 6 Ext.A1 two witnesses have affixed their signatures. The first witness is Jose (PW3) and the second witness is Rathan (DW2), none other than the husband of the defendant. Of course, DW2, the second witness, the husband of the defendant deposed before the court that he has not signed Ext.A1 as a witness as alleged by the plaintiff and no such agreement was executed as alleged by the plaintiff. But he had admitted that Jose, PW3 was one of his friends and they had business transactions and so many documents were executed in their business. According to him to enable the execution of sale deeds, he used to hand over signed stamp papers to Jose and that was only on the trust between them but later their relationship got strained and that was regarding the sharing of commission in the transaction involved by both of them. According to him, the relationship had strained during the month of August, September 1995 and since then Jose was on inimical terms with him. So he misused or manipulated the documents entrusted by fabricating the signature of his wife and created such a document as if his wife agreed to alienate her property to the plaintiff and in fact, no such agreement was executed between the parties and there was RFA.548/2008 7 no receipt of money as alleged by the plaintiff. It is pertinent to note that though he had raised such a contention he admitted his signature in Ext.A1 document. According to him, when he affixed his signature in the agreement signature of the plaintiff and the defendant were not seen affixed in that document and the printed form was also not filled up and attached with the first page and when he affixed his signature the last sheet alone was there and his signature was in the last sheet. He had also admitted that he was aware of the notice issued by the plaintiff to his wife, the defendant. So his case is that Jose had manipulated the document with the connivance of the plaintiff and thus the plaintiff had cooked up this false case against his wife, the defendant and she never affixed her signature in Ext.A1. In fact he came to know about the same only when he had seen a copy of Ext.A1 on receipt of the same from the court in the suit. So in short, he vehemently denied the allegation that his wife had executed a sale agreement in favour of the plaintiff agreeing to alienate her property after receipt of an amount of Rs.1,43,950/-. 8. PW3, Jose on the other hand had denied the contentions RFA.548/2008 8 raised by the defendant in the written statement and contended that Ext.A1 agreement was executed by the defendant and she came to the office of the document writer Sri. Alex along with her husband and the document was got executed by Thimothy (PW2) and received the amount of Rs.1,43,950/- as advance. He testified that money was handed over at the office of the document writer and after that she had affixed her signature along with her husband in the document. So PW3 had fully supported the case of the plaintiff that the defendant had executed Ext.A1 agreement for sale of the property to the plaintiff and he had seen the property involved in Ext.A1 and had gone there twice in connection with the said transaction. According to him he had close acquaintance with the defendant and he talked with the husband of the defendant directly in the transaction and thus the amount was fixed and the document was executed. He has also testified before the court that when the sale deed was not executed in terms of Ext.A1 agreement by the defendant he had approached her many times along with the plaintiff to get the document executed in his favour and on many occasions he was compelled to spent time in the office of the RFA.548/2008 9 document writer with the hope that the document will be executed in favour of the plaintiff. His version is that the plaintiff had arranged money by pledging his gold ornaments and it was paid on the date of execution of the sale agreement itself. Though he was cross examined thoroughly, no evidence was brought out to conclude that he was just giving evidence after colluding with the plaintiff in order to defeat the case of defendant. 9. The defendant on the other hand as DW1 had denied her signature in the agreement. The learned counsel for the defendant had argued that her name is not V.S.Santha but she is T.G.Santha and she used to affix her signature as 'TGS' and not as Santha and the signature in both the pages of Ext.A1 were not as that of the defendant's signature and that itself shows that the document was forged by the plaintiff colluding with Jose who was having business transaction with the husband of the defendant. It is pertinent to note that the defendant though denied the execution of Ext.A1 document had a definite case that a document was forged and fabricated by the plaintiff with the help of PW3 Jose, did not raise such a contention at the time RFA.548/2008 10 when Ext.A3 reply notice was sent to the plaintiff. So also it is to be noted that in the written statement filed by him on the first occasion she did not raise such a contention but later by filing the additional written statement a new case was set up that she never had the intention to sell the property and in fact the plaintiff had misused and forged the signed papers entrusted by her husband to his business partner Jose. At the outset it is to be noted that though such a contention was raised by her in the additional written statement, she did not produce any documents before the court to prove that her signature is not as seen in Ext.A1 agreement. Of course, she has filed I.A.No.5464/2001 to forward the agreement to a handwriting expert to prove her contention that her signature was forged by the plaintiff. On 28.5.2002 the court below had forwarded Ext.A1 with the specimen signature of the defendant taken before the court for comparison by a handwriting expert. The handwriting expert on receipt of the said direction from the court issued a letter dated 17.6.2002 requesting the court to forward additional standard documents for examination with Ext.A1 agreement. It was specifically stated in the letter as follows; RFA.548/2008 11 “On a perusal of the documents received with the letter cited, it is seen that the disputed signatures purported to be of one Santha are of the period 1995 and her standard signatures applied for comparison are specimen signatures obtained in the year 2001.” 10. So , the disputed and standard signatures are having a time difference of nearly 6 years and therefore documents nearer to the period of disputed signatures were called for comparison purpose. Since the documents were not made available by the defendant the court below dismissed the application filed by the defendant by an order dated 2.7.2004. On a perusal of the said order it could be seen that thereafter a carbon copy of an agreement alone had been produced by the defendant to forward the same for comparison with Ext.A1. As the signature in the copy is not the original one the court below declined to forward the same for comparison and that resulted in dismissal of the petition. The said order was challenged by the defendant in Writ Petition No.2998/2004 before this Court. By an order dated 8.8.2006 this Court has interfered with the order under challenge and allowed the writ petition directing the court below to give an opportunity to place further materials which could be used as standard documents for giving an opportunity to RFA.548/2008 12 the defendant and thus the order under challenge was set aside. It was made clear that if further documents are forthcoming, a fresh opportunity can be afforded to avail the benefit of the procedure. Thus this Court had given an opportunity to the defendant to produce the documents for comparison with Ext.A1 but she failed to avail the opportunity. 11. It is pertinent to note that her definite case was that only the signature of her husband was in the document entrusted to PW3 Jose in the business transaction and with that document her signature was affixed in a document by playing fraud. If that be so her signature will not be available in the document, so as to commit forgery. In order to substantiate her case that her signature is different and she used to scribe her signature as 'TGS' and she never used to sign as 'Santha' as seen in Ext.A1 agreement, her SSLC Book as well as the sale deed executed by her in the month of September, 1995 while alienating a certain portion of her property to another person were produced. But no steps were taken to bring forth the document kept in the office of the sub registrar as she had admitted alienation of certain extent of property to another person. RFA.548/2008 13 12. The decision relied by her in **K.S.Satyanarayana v. V.R.Naryana Rao (1996 (6) SCC 104)** is not applicable in this case as the Apex court has observed that when the signature is denied by the defendant the trial court could have compared the signature under Section 73 of the Evidence Act and made such a comparison to ascertain the real fact. 13. Here the facts are entirely different. Obviously,the defendant had exhausted her remedy to substantiate her case but she failed to do so and hence, this decision is not applicable to the facts of this case. 14. So also in **Subhra Mukherjee and another v. Bharat Coking Coal Ltd and others (AIR 2000 SC 1203)** it was held that “There can be no dispute that a person who attacks a transaction as sham, bogus and fictitious must prove the same. But where the issue raised discloses that it is in two parts, the first party says, 'whether the transaction, in question, is bona fide and genuine one' and the second part says 'or is a sham, bogus and fictitious' transaction, it is only when the first part has been proved that the party alleging to be sham has to dislodge it by proving that it is a sham and fictitious transaction.” ## It has been further observed as follows: RFA.548/2008 14 “13. There can be no dispute that a person who attacks a transaction as sham, bogus and fictitious must prove the same. But a plain reading of question No.1 discloses that it is in two parts; the first part says, 'whether the transaction, in question, is bona fide and genuine one, which has to be proved by the appellants. It is only when this has been done that the respondent has to dislodge it by proving that it is a sham and fictitious transaction. When circumstances of the case and the intrinsic evidence on record clearly point out that the transaction is not bona fide and genuine, it is unnecessary for the Court to find out whether the respondent has led any evidence to show that the transaction is sham, bogus or fictitious.” 15. Here, in this decision the Apex court has held that when the transaction is not bonafide and genuine, it is unnecessary for the court to find out whether the respondent has lead any evidence to show that the transaction is a sham, bogus or fictitious. 16. But here the facts of the case are different. It has not been proved that the transaction entered between the plaintiff and the defendant is not a bona fide one. The defendant had simply denied the execution of the agreement and contended that the plaintiff along with PW3 had forged her signature and filed the case for specific performance. She in fact miserably failed to prove the assertions made against the case of the RFA.548/2008 15 plaintiff. Here on a meticulous evaluation of the entire evidence adduced by the parties, it could be seen that the defendant who denied the document and contended that the suit was filed by the plaintiff on the basis of a forged document by manipulating her signature failed to adduce evidence to substantiate the contentions raised by her. Apart from the evidence of the plaintiff, the evidence of PWs2 and 3 stands in favour of the plaintiff that on the date of execution of the agreement itself, the defendant had received the amount of Rs.1,43,950/- from the plaintiff as part of the sale consideration. The evidence on record would clearly proves that a sale agreement was executed between the parties and an amount of Rs.1,43,950/- was received by the defendant promising to execute the sale deed and thereafter withdrawn from the said agreement. In the reply notice, that was on the first occasion she did not deny the execution of the document, but raised a different contention in the written statement. 17. The evidence adduced by the plaintiff also shows that he had sufficient funds with him to pay the advance amount and he arranged the same by selling his gold ornaments and RFA.548/2008 16 adjusted the balance with the amount in his deposit, and thus paid the said amount to the defendant. But the court below, on the finding that he was not having sufficient funds to pay the balance sale consideration and he was not ready to pay the balance sale consideration to get the document executed in his favour had declined to grant a decree for specific performance. Thus concluded that the plaintiff was not entitled to get a decree for specific performance of contract and the alternative relief sought for realization of the amount advanced by him towards the said transaction, was allowed. But the said finding was not challenged by the plaintiff in appeal. Hence, I find absolutely no justifiable reason to interfere with the judgment and decree under challenge. Consequently, the appeal is dismissed. No costs. **Sd/-** **SHIRCY V.** **JUDGE** smm