IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 6TH OCTOBER 2010 / 14TH ASWINA 1932 AS.No. 308 of 1998(B) -------------------------------- OS.119/1993 of SUB COURT, KOTTARAKKARA .................... APPELLANT/PLAINTIFF: ----------------------------------- GOMATHY SREELATHA, PUTHEN VEEDU, ANATHALAVATTOM, CHIRAYANKIZHU FROM KOCHUVEEDU, KUTTIKKADU, KODACKAL. BY SRI.T.P.KELU NAMBIAR, SENIOR ADVOCATE, ADV. SRI.GOPI KRISHNAN NAMBIAR, SRI.P.G.RAJAGOPALAN. RESPONDENTS/DEFENDANTS: --------------------------------------------- *1. JANARDHANAN, S/O.VELAYUDHAN, KOCHUTHOPPU VEEDU, ANATHALAVATTOM, CHIRAYINKIZHU. *(DIED) 2. SYAMALA, D/O.JANARDHANAN, OF -DO- -DO- *IT IS RECORDED THAT THE 1ST RESPONDENT DIED AND THE 2ND RESPONDENT SHYAMALA IS RECORDED AS ONE OF THE LEGAL REPRESENTATIVES OF JANARDHANAN/1ST RESPONDENT AS PER ORDER DATED 16/06/2009 IN I.A.NO.1444/2008. **ADDL. R3 TO R6 IMPLEADED ADDL. R3: J. THAPODHANAN, PUTHENVEEDU, ANATHALAVATTOM P.O., KADAKKAVUR, THIRUVANANTHAPURAM-695 306. ADDL. R4: J. RAJENDRAN, R.R. BHAVAN OF -DO- -DO-. ADDL. R5: J. SUPASEELAN, ERSHA NIVAS OF -DO- -DO-. AS.No. 308 of 1998(B) ADDL. R6: J. SURENDRAN, MADATHIL VEEDU OF -DO - -DO-. ** ADDL. RESPONDENTS 3 TO 6 ARE IMPLEADED AS THE LEGAL REPRESENTATIVES OF THE DECEASED 1ST RESPONDENT AS PER ORDER DATED 16/06/2009 IN I.A.NO.1444/2008. R2 BY SRI.K.R.RADHAKRISHNAN NAIR. BY ADV. SRI.M.R.PARAMESWARAN, SRI.ELDHO PAUL, SRI.V.GOPAKUMAR, SRI.M.P.RAMNATH. THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 06/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs. M.N. KRISHNAN, J. = = = = = = = = = = = = = = = A.S. NO. 308 OF 1998 = = = = = = = = = = = = = = = Dated this the 6th day of October, 2010. J U D G M E N T This appeal is preferred against the judgment and decree passed by the Subordinate Judge, Kottarakkara in O.S.119/93. The suit is one for specific performance of the contract. The plaintiff is the daughter-in-law of the first defendant and 2nd defendant is the daughter of the first defendant. It is the case of the plaintiff that at the time of her marriage with the son of the first defendant 58 sovereigns of gold were given to her and on 1.12.73 the father-in-law got the ornaments from the daughter-in-law for the purpose of conducting the marriage of the 2nd defendant and for the same handed over possession of the plaint A.S. 308 OF 1998 -2- schedule property and the plaintiff was in enjoyment of the same. Ultimately in the year 1992 an agreement was entered into fixing the total consideration of the property at Rs.45,000/- out of which Rs.30,000/- was appropriated as the value of the gold Rs.5,000/- was paid on the date of the agreement and the stipulation was to pay the balance Rs.10,000/- and get the document registered. The first defendant did not comply with the terms of the agreement hence the suit for specific performance. 2. On the other hand the first defendant would contend he had never appropriated any gold ornaments belonging to his daughter-in-law and he has not put the plaintiff in possession of A.S. 308 OF 1998 -3- the property and further that he had not executed the document Ext.A1 and therefore the plaintiff is not entitled to the decree as prayed for. 3. In the trial court PWs.1 to 8 and DWs.1 to 3 were examined. Exts.A1 to A4, B1 to B9 and X1 were marked. On an analysis of the materials the trial court dismissed the case and it is against that decision the plaintiff has come up in appeal. 4. Heard the learned counsel for the appellant as well as the respondent. Now the short point with large evidence that requires to be determined is regarding the execution of Ext.A1. The relationship of the parties is that the plaintiff is the daughter-in-law of the A.S. 308 OF 1998 -4- first defendant. It has to be stated at the out set that the plaintiff has set up a case of parting with possession of the property by the defendant by virtue of an oral agreement in 1973 and the suit for specific performance is filed on the basis of an agreement, Ext.A1 alleged to be executed in the year 1992. That itself creates a strong suspicious circumstances for the reason that nothing is stated in Ext.A1 even regarding the cause of execution of such a document. Now the case attempted to be proved is that when the plaintiff got married in the year 1968, 58 sovereigns of gold were given to her at the time of the marriage and the first defendant had appropriated the said gold ornaments for the purpose of the marriage of the A.S. 308 OF 1998 -5- daughter, the 2nd defendant. It can be seen from the materials available at one stroke the plaintiff and her husband would say that it was in the year 1970 the gold ornaments were appropriated. The son as PW3 would later say it was in the year 1972 and lastly in the plaint it is stated as 1.12.73. There cannot be better inconsistency than this for the reason that being an important act of parting with the gold and getting possession of the property one cannot afford to forget the date or the year at least. Further the trial court had also extracted the evidence and held that materials are totally lacking to arrive at a decision that the plaintiff has been gifted or given 58 sovereigns of gold at the time of the marriage. A.S. 308 OF 1998 -6- A suggestion has been put to all the witnesses that there was a 107 Cr.P.C. case pending at the time of the marriage and an arrest warrant was pending against the husband of the plaintiff and so the marriage was done in secrecy without much members attending the same. It is true that the existence of a case is admitted but the denial is there with respect to the pendency of any arrest warrant. When gold is parted with and in consideration of the same the property is handed over, there is no difficulty for anybody to execute the document on that date itself regarding the same. So the silent conduct for almost two decades would itself create a suspicion in the mind of a reasonable thinking man regarding the genuineness of an agreement to A.S. 308 OF 1998 -7- sell the property on 1.12.73. Now it is in this background Ext.A1 and the other attending circumstances have to be looked into. 5. PW1 is the plaintiff and PW3 is the husband. PW2 and PW6 are the attesting witnesses. PWs.7 and 8 are two persons examined to prove the factum of possession. PW4 is the uncle. PW5 is the scribe. So far as PW2, the attesting witness is concerned he had deposed before Court that he had not signed Ext.A1 as a witness. He had also given an affidavit in the Court prior to the same denying his signature in the document. He had been cross-examined at length by the persons but nothing is brought out to discard or prove that he had signed in the document. When the plaintiff herself had A.S. 308 OF 1998 -8- examined him and that witness had turned hostile and nothing is brought out to prove that he had any special vengeance against the plaintiff, the plaintiff has to suffer the consequences of the evidence of PW2. So PW2's evidence is totally of no help to the plaintiff to establish the case. 6. The next witness is PW6. The way in which he starts the evidence itself would show that he is not prepared to speak the whole truth. He is the husband of the plaintiff's sister. But when he starts the evidence he submits that his relationship with D1 and not the other thing. He would submit that his name is Kunhukrishnan Thampi and he had seen Rs.5,000/- being handed over. In the cross- A.S. 308 OF 1998 -9- examination he would submit that he does not know the name of even his grand mother. He does not know the name of the mother of D1 though he claims to be a very close relative. He is able to say about the gold ornaments and other things in relation to the marriage of the plaintiff which took place in 1968. But when he was confronted with the question with respect to the last marriage which he had attended two weeks prior to the examination as a witness he would say he does not even remember the name of the couple and he does not know how much ornaments they were given. He would specifically then add since the plaintiff was a relative he remembers it and such information was given to him by the first defendant. It is not acceptable and A.S. 308 OF 1998 -10- therefore the interestedness of this witness looms large on each and every sentence he had spoken. It has also come out in evidence that he was invited to be a witness to give a status of a senior member and the person who is residing far off about 70 km. away from Kottarakkara comes to Kottarakkara to witness these documents. Normally this is also not a possible thing which has to be taken serious note of. So the evidence of PW6 does not inspire any confidence. But it reveals the interestedness of him in the plaintiff naturally being his sister-in-law. Therefore that evidence also has to be ignored. 7. Now comes the evidence of PW5 who is a scribe. Here is a scribe who had just copied A.S. 308 OF 1998 -11- what another scribe had written, normally which is not a practice. Further it has also to be remembered that he had not seen any of the witnesses signing the document and he would further submit he had put his signature and handed over the document to give to this Raghavan Pillai. That itself shows that the suspicious nature in which things were done. He admits that he is maintaining registers for writing documents and to a question whether he has entered this agreement as a document written by him, he would submit he had not done so and the explanation is that he had written it on behalf of Raghavan Pillai. When a person scribes to a document rules mandate him to enter it in the book. Therefore the evidence of this A.S. 308 OF 1998 -12- witness also does not inspire any confidence so as to give a finding in favour of the plaintiff. 8. Now PW4 is the uncle of the plaintiff. He was examined to prove that he had taken very active part in the conduct of the marriage of the plaintiff. His evidence also does not give the details though he claims that he had gone for the purchase of gold ornaments. No documents are available and therefore his evidence also does not help the plaintiff to establish the case. It is also interesting to note that he had deposed that though the first defendant had obtained the property about 7 to 8 years prior to the daughter's marriage of the first defendant this witness would say that he had kept possession only for one year. That itself A.S. 308 OF 1998 -13- shows that he does not have much idea about the affairs of the first defendant. 9. Now PW7 and PW8. PW7 is a person who would depose that he is a coconut climber of the property. He would submit that for the last 20 to 22 years plaintiff and her husband are in possession. According to him he is plucking nuts from the trees. But he would frankly admit though he is climbing the coconut trees for the last 22 years he does not know the persons who are in possession of the eastern side or western side of the property. He would submit that he is only residing three furlong away from the plaint schedule property but to a clever question by the lawyer he would admit that he had gone by bus to the plaint schedule property A.S. 308 OF 1998 -14- which would indicate that story of a shorter distance is also the creation for the case. This evidence does not inspire any confidence at all and it is also rightly rejected by the trial court. 10. PW8 is one Rajeendran. He would depose before Court that the plaint schedule property is in the possession of the plaintiff's husband for the last 18 years. According to him he is doing the spade work. He does not remember whether D1 has come to the property at all. Though he claims to be a worker for large number of years he would admit he had not registered as an agricultural worker of the plaintiff or her husband. When a question is put to him whether the first defendant was in possession of the A.S. 308 OF 1998 -15- property till 1993 he would state that he does not know and to the next question whether D2 is in possession then also his answer is that he does not know. So the evidence of this witness also shows that he has just come at the instance of the plaintiff to give evidence without having any idea or knowledge about the property or the persons in possession. Therefore the evidence of PW8 also does not help the plaintiff. 11. Lastly it has to be remembered that the parties are natives of Anathalavattom. Admittedly the distance between Anathalavattom and Kottarakkara is 65 to 70 kms. It has also come out in evidence that there are large number of stamp vendors in an around that area but it is not known why persons had taken the strain to A.S. 308 OF 1998 -16- drive 70 kms. to execute the agreement at Kottarakkara where they have no other business. Some of the witnesses even had stated that they were seeing Kottarakkara for the first time in their life. There is a suggestion by the first defendant that one Raghavan Pillai from whom the stamp paper is alleged to be purchased is an advocate clerk cum document writer. It is the case of the first defendant that he is an expert in creating documents with old papers and that is why they had approached Mr.Raghavan Pillai. It is also submitted that Mr.Raghavan Pillai was involved in a case of this nature the judgment of which is produced as Ext.B9 wherein the Court made some structures against him. So under ordinary human course of conduct when there is A.S. 308 OF 1998 -17- things done in a legitimate manner one would not expect persons to travel from a distance of 70 kms. to Kottarakkara to purchase a property, get the witnesses from that place and write the document. The only explanation tendered I find is by PW3 when he would submit that they went to a scribe in Kadakkal, the father made a demand for Rs.15,000/- and when the son did not comply he got into the bus and went to Kottarakkara, the son followed him to Kottarakkara and that is how he explains the circumstances under which they reached Kottarakkara. The father had categorically denied about the same. Therefore putting all these things together it has to be held that all is not well with the case of the plaintiff. Time and again it has been reminded A.S. 308 OF 1998 -18- that it is not the quantum of evidence that matters but it is the quality of evidence that matters. When the quality of evidence is very poor it cannot be accepted to arrive at a finding to uphold the case of plaintiff. Therefore from these discussions I hold that the judgment and decree of the trial court do not warrant any interference. Therefore they are confirmed and the appeal is dismissed but under the circumstances without any order as to costs. M.N. KRISHNAN, JUDGE. ul/- A.S. 308 OF 1998 -19- M.N. KRISHNAN, J. = = = = = = = = = = A.S. No.308 OF 1998 = = = = = = = = = = = J U D G M E N T 6th October, 2010.