Santhamma and Muraleedharan Pillai v. V. M. Satheesan Pillai

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE HARUN-UL-RASHID TUESDAY, THE 17TH DAY OF JANUARY 2012/27TH POUSHA 1933 RFA.No. 210 of 2004 (C) ----------------------OS.61/1995 of SUB COURT, MAVELIKKARA APPELLANT(S)/APPELLANTS/DEFENDANTS:: ----------------------------------- 1. SMT.SANTHAMMA, D/O. JANAKI AMMA, RESIDING AT THAZHAVANA ILLOM, KAITHA VADAKKUM, MURI KANNAMANGALAM VILLAGE, ALAPPUZHA DISTRICT. 2. SRI. MURALEEDHARAN PILLAI, S/O. SANTHAMMA, DEVASWOM EMPLOYEE RESIDING AT THAZHAVANA ILLOM, KAITHA, VADAKKUM MURI KANNAMANGALAM VILLAGE, ALAPPUZHA DISTRICT. BY ADV. SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL) RESPONDENT(S)/PLAINTIFF:: ------------------------- 1 SRI. V.M. SATHEESAN PILLAI, S/O. VASUDEVA PANICKER, RESIDING AT:, ABHILASH PALA MURI, KANNAMANGALAM VILLAGE ALAPPUZHA DISTRICT. R1 BY SMT.PREETHY KARUNAKARAN BY SRI.R.RAJESH KORMATH BY SRI.JAYKAR.K.S. BY SRI.RAHUL VARMA THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 17-012012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **HARUN-UL-RASHID, J.** **---------------------------------------** ## **R.F.A. No.210 of 2004** **--------------------------------------Dated this the 17[th] day of January 2012. JUDGMENT** Defendants are the appellants. The appeal is directed against the judgment and decree dated 31.3.2003 in O.S.No. 61/1995 on the file of the Subordinate Court, Mavelikkara. 2. The suit is for specific performance of the contract for sale. The court below decreed the suit and granted a decree for specific performance of Ext.A1 agreement for sale and directed the plaintiff to deposit balance sale consideration of Rs. 41,999/- due to the defendants within a period of one month and the defendants to execute a registered sale deed in favour of the plaintiff within one month from the date of deposit and the plaintiff will be entitled to apply for execution of sale deed through court. Parties hereinafter are referred to as plaintiff and defendants as arrayed in the suit. 3. The plaint schedule property is having an extent of 30 sq.mts comprised in resurvey No. 593/20 of Kannamangalam **R.F.A.No. 210/2004** **2** Village and the shop room situated therein. The 2[nd] defendant is the son of the first defendant. The plaintiff's case is that defendants on 14.10.1994 executed an agreement for sale of the plaint schedule property. The agreement is marked as Ext.A1. It is alleged that the defendants agreed to sell the property for a consideration of Rs. 45,000/- on or before 30.1.1995. According to the plaintiff, the 2[nd] defendant received a sum of Rs. 3001/- as advance amount. The suit was filed seeking specific performance of Ext.A1 agreement alleging that the defendants were not amenable to comply with the terms of the agreement. 4. In the joint written statement filed by the defendants it is _inter alia_ contended that Ext.A1 agreement is a forged and fabricated document. The defendants denied the execution of the agreement and receipt of advance amount. According to the defendants, the plaintiff in collusion with a brother of the first defendant filed the suit. The defendants also contended that they are depending on the rent received from the plaint schedule shop for their **R.F.A.No. 210/2004** **3** livelihood and hence they would be put to severe hardship if the suit is decreed. 5. Both sides adduced evidence. Pws 1 to 3 were examined on the side of the plaintiffs. The plaintiffs produced Exts. A1 to A6. Dws 1 to 3 were examined. DW3 is the daughter of the first defendant. 6. The plaint schedule property stands in the name of the 2[nd] defendant with life interest to the first defendant. Pw1 deposed that Ext.A1 agreement was prepared in the house of PW3. PW3 is one of the attestors of Ext.A1 agreement. The date of agreement is 14.10.1994. 7. PW1 deposed in terms of the averments in the plaint. The date fixed in Ext.A1 agreement for execution of sale deed is on or before 31.1.1995. Exts.A2 to A4 are the notices issued to defendants 1 and 2 by the plaintiff with postal receipt and acknowledgment card. Before the last date fixed for the execution of the sale deed, plaintiff sent Ext.A4 notice dated 24.1.1995 to the defendants stating that the plaintiff is ready and willing to fulfill his part of the **R.F.A.No. 210/2004** **4** contract and requested the defendants to comply with the terms of the agreement. The plaintiff was present on 28.1.1995 in the Sub Registrar Office at Mavelikkara. Ext.A5 is the copy of the sale deed executed on 28.1.1995 in which the plaintiff is a witness. The plaintiff deposed that prior document ie., partition deed of 1982, was entrusted with him by the 2[nd] defendant at the time of execution of the agreement. PW1 also deposed that Pws 2 and 3 were also present at the time of execution of Ext.A1 agreement and it was read out to the plaintiff and witnesses. PW2 is none other than the brother of the first defendant. He is also an attestor of Ext.A1 agreement for sale. He testified before the court that he had seen the defendants signing Ext.A1, seen PW3 signing Ext.A1 agreement and that Ext.A1 was prepared from the house of PW3. PW3 also testified in corroboration of what has been deposed by PW1 and PW2. PW3 testified before the court that the agreement was signed in his presence. The trial court elaborately discussed the evidence adduced by PW1 to PW3, DW1 to DW3 and **R.F.A.No. 210/2004** **5** documentary evidence. Relying on the testimonies of PW1 to PW3 and Exts.A1 to A6 documents, the trial court concluded that the defendants executed Ext.A1 agreement in the presence of PW2 and PW3 agreeing to sell the plaint schedule property to the plaintiff. The trial court observed that though PW1 to PW3 were cross examined, nothing has been brought out to shake the testimony of the witnesses. 8. The trial court also appreciated the oral evidence of DW1 to DW3. DW1 and DW2 are defendants 1 and 2 and DW3 is the daughter of the first defendant. After evaluating the oral evidence of DW1 to DW3 the trial court observed that DW1 was trying to evade and she was trying to deny every thing and Ext.A1. The trial court compared the signatures found in Ext.A1 and other admitted signatures found in other documents. The trial court found that the signatures found in Ext.A1 agreement is that of defendants 1 and 2. DW1 admitted that the plaint schedule property was sold to one Sri. Joy during the pendency of the suit. During the cross examination of 2[nd] defendant he had **R.F.A.No. 210/2004** **6** denied his right in the plaint schedule property and pretended ignorance as regards his right. In cross examination, DW2 admitted that there was a partition in the year 1982 while he was a minor and the first defendant mother represented him in the partition deed. He also admitted his signature in Ext.A3 acknowledgment card. He testified before the Court that he did not sent reply to Ext.A4 notice. He had denied the signature in the written statement and later admitted his signature in the 2nd and 3[rd] pages of the written statement. DW1 denied the signature in Ext.A1 agreement. Finding that the versions of defendants are not credible, the trial court disbelieved the oral evidence of DW1 to DW3 and on evaluation of the entire evidence, the trial court held that plaintiff has proved execution of Ext.A1 agreement for sale. The trial court also observed that defendants 1 and 2 were not telling the truth before the court, while they were fully aware that Ext.A1 agreement was executed by them. The trial court on a comparison of the signatures in Ext.A1 with the admitted signatures held that the signatures **R.F.A.No. 210/2004** **7** contained in Ext.A1 agreement is that of defendants 1 and 2. 9. The appellants contended that the signatures found in Ext.A1 is forged signatures that the appellants do not affix them and therefore, the finding of the trial court that defendants executed Ext.A1 agreement is wrong. According to the counsel, since the signature found in Ext.A1 agreement by defendants 1 and 2, categorically denied the court below ought to have held that without the help of a handwriting expert, it is impossible to ascertain whether the signature is that of the defendants. According to the learned counsel for the appellants, a bare, naked eye, comparison of the signatures of the defendants with that of their admitted signatures would clearly reveal that the signatures are markedly different and that when there is such a doubt, it is the incumbent on the court to leave the matter to the opinion of an handwriting expert. 10. The plaintiff was examined in the case as PW1 and the witness as Pws 2 and 3. Execution of Ext.A1 is proved by evidence tendered by plaintiff and his witnesses. The trial **R.F.A.No. 210/2004** **8** court appreciated the evidence tendered by both sides including oral evidence of Dws 2 and 3 and the attesting witnesses. After evaluating the evidence on record, the trial court found that Ext.A1 agreement was executed by defendants 1 and 2 in the presence of attesting witnesses. This is not a case where the court rest its conclusions solely by comparison of the signatures of the defendants with their admitted signatures. Even without comparison, there is evidence on record which clearly would reveal that the defendants 1 and 2 signed and executed Ext.A1 11. It is also pointed out that the two colours found in the document and the unusual gap between the last line of the place of signature shows that it is a fabricated document. 12. Learned counsel also pointed out that the court below would have taken into consideration the hardship caused to the defendants by the sale of the plaint schedule property. It is contended that the defendants are not affluent and it would be gross injustice to them to deprive of the property that belongs to them for a meagre sum. Learned **R.F.A.No. 210/2004** **9** counsel also submits that the court below failed to consider the hardship caused to the defendants when it exercised the discretionary power to grant a decree of specific performance. 13. Learned counsel for the appellants relied on a decision of this Court in **Adimakutty Hydu Ali** v. **Ambujam** **(2003 KHC 413)** . Before decreeing specific performance, it is obligatory for courts to consider whether by doing so any unfnair 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. 14. It is also contended that the defendants would not be precluded from contending that discretion should not be exercised to decree specific performance, only because his defence is either unsustainable or not proved or false or because the Court found it to be so. The learned counsel for the appellants relied on the decision in **Aliyas T.V** . **and Another** v. **A.Aboobacker (2006)KHC 861 ).** **R.F.A.No. 210/2004** **10** 15. The last date fixed for performance of contract is 30.1.1995. The date of Ext.A1 agreement is 14.10.1994. Before the expiry of the date fixed for performance, the plaintiff issued Ext.A4 notice dated 24.1.1995. The defendants did not sent any reply to Ext.A4 notice. The suit was filed on 30.1.1995. i.e. on the last date of alleged breach. This Court as well as trial court concurrently found that the defendants are liable for the breach of contract. During the pendency of the suit, the defendants sold the plaint schedule property to another person. 16. From the circumstances, thus noticed by this Court, it is evidently clear that the defendants are not prepared to execute the sale deed as agreed. This is not a fit case for exercise of discretion in favour of the defendants. In the result, the appeal is devoid of any merit and hence dismissed. No order as to costs. ## **HARUN-UL-RASHID JUDGE** al.