IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH AT HYDERABAD (SPECIAL ORIGINAL JURISDICTION) TUESDAY, THE 18th DAY OF JANUARY TWO THOUSAND AND ELEVEN HON’BLE SRI JUSTICE N. RAVI SHANKAR C.C.C.A.No.42 of 1998 BETWEEN: Mohd. Akhtaruzzama alias Tadmadgi … APPELLANT (S) And Smt Pasha Begum … RESPONDENT(S) THE HON’BLE SRI JUSTICE N. RAVI SHANKAR C.C.C.A.No.42 of 1998 JUDGMENT: Appellant is the plaintiff in O.S.No.884 of 1992 which is a specific performance suit on the file of the Court of II Additional Judge, City Civil Court, Hyderabad (trial Court). She filed this appeal questioning the judgment and decree dated 22.12.1997 of the trial Court by which it dismissed the said suit. 2. To state and decide the points that arise for determination in this appeal the respective cases of the parties should be noted and henceforth they shall, for the sake of convenience, be referred to as they are arrayed in the suit. The plaintiff’s case is that through one Abdul Sattar a resident of Chanchalguda, Hyderabad, she came to know that the defendant intended to sell the plaint schedule house property (for short ‘suit property’) for the purpose of her needs and therefore along with the said Abdul Sattar she approached the defendant and settled the bargain for buying the suit property with the defendant for a sale consideration of Rs.2,85,000/- and that the defendant agreed for the same. The further version of the plaintiff is that accordingly the defendant executed an agreement of sale dated 09.03.1992 to sell the suit house for a consideration of Rs.2,85,000/- and received Rs.25,000/- in cash on the same day by way of an advance. According to the said agreement of sale the transaction was to be completed within four months. 3. The grievance of the plaintiff is that subsequently though she approached the defendant with the balance sale consideration demanding her to execute the sale deed, the defendant did not come forward to execute the sale deed and therefore she has been constrained to file the suit for specific performance. The plaintiff also in the plaint claimed possession of the suit property. 4. The defendant filed an elaborate written statement resisting the suit. Her version is that she never intended to sell the suit property at any point of time to anybody. Her plea is that as she was in need of money she approached the plaintiff for a loan of Rs.25,000/- and that the plaintiff in the first instance demanded her to execute a sale deed with a condition for reconveyance but as she did not agree for it, the plaintiff again demanded her to execute an agreement of sale by way of security. The further version of the defendant is that at that time she told the plaintiff that the suit property was already gifted by her to her daughter and therefore she was in no position to execute a sale deed or even an agreement of sale. It is the version of the defendant that the plaintiff again approached her informing her that the agreement of sale would be only a formal one and necessary terms would be incorporated in it treating it as a security only. The defendant then says that believing the words of the plaintiff, she signed in the present agreement of sale but to her surprise she came to know that the plaintiff took a normal agreement of sale without there being anything in it indicating that it was executed only as a security. The defendant says that she never intended to sell the suit property and she never executed the agreement of sale to give effect to it and it was never intended to be acted upon. Her further plea is that she borrowed the sum of Rs.25,000/- and it was repayable with an interest of Rs.5,000/-. With the above pleas the defendant pleaded for dismissal of the suit. 5. The trial Court framed altogether four issues. The details of the oral and documentary evidence let in by both sides are already given in the appendix of evidence given at the foot of the trial Court’s judgment and it is not necessary to repeat them here. The trial Court after considering the evidence let in by both sides upheld the case of the defendant and dismissed the suit. However, in its judgment the trial Court directed the defendant to pay the sum of Rs.25,000/- i.e. the loan amount plus a sum of Rs.5,000/- towards interest i.e. in all Rs.30,000/- to the plaintiff within one month from the date of the judgment further providing that in default the plaintiff would be entitled to interest at 18% per annum. The defendant did not file any cross-appeal or cross- objection against the direction given to her to refund the above amount of Rs.30,000/- in the present suit though the trial Court held that the transaction was a loan transaction. Hence, the validity or otherwise of that finding is not gone into this appeal. 6. On the pleadings and arguments, the following points arise for determination in this appeal. 1) Whether Ex.A.1 agreement of sale dated 09.03.1992 was executed by the defendant as security for the loan of Rs.25,000/- taken by her as pleaded by the defendant or was it intended to be acted upon as an agreement of sale. 2) If point No.1 is decided in favour of the plaintiff whether the plaintiff was throughout ready and willing to perform her part of the contract and entitled to the relief of specific performance? 3) To what relief? Point No.1: 7. The respective cases of the parties on this point have already been set out supra. It may be noted that though the defendant admitted her signature in Ex.A.1 agreement her plea is that she never intended to sell her house property and that it was never intended to be acted upon as an agreement of sale and that she executed it only as a security for the loan taken by her. It is open for her to take such a plea under Section 92 of the Evidence Act and show that Ex.A.1 was never intended to be acted upon as a sale agreement and she signed it only as a security for the loan which is her plea. The version of the defendant in para-3 of her written statement is that she asked the plaintiff to lend a sum of Rs.25,000/- but the plaintiff insisted upon in the first instance a sale deed for that amount with a condition for reconveyance as a security but she refused. Her further version is that the plaintiff again approached her requesting her to execute a sale agreement as a collateral security for the loan of Rs.25,000/-. The defendant says that on the first and second occasions she informed the plaintiff that she already gifted the suit house property in favour of her daughter Ms. Asra Tabassum (D.W.3) and therefore she cannot execute any sale deed or sale agreement. Her further plea is that thereafter the plaintiff informed her that she would not disclose the sale agreement to anybody and that she would get the sale agreement drafted showing in it that it was executed only as a security incorporating all terms to that effect and requested her to sign it. 8. The plea of the defendant is that she does not know Urdu language and blindly believing the words of the plaintiff that the sale agreement was worded indicating that it was taken only as a security she signed it and that plaintiff however misrepresented the facts to her and obtained her signature in Ex.A.1 sale agreement. This is the version pleaded by the defendant in paras 3, 4 and 5 of her written statement. Normally in a case like this where the defendant i.e. the vendor has admitted her signature in the sale agreement but pleads that it was not intended to be acted upon like a sale agreement but was only executed as a security the burden lies upon the defendant to prove her case. 9. The defendant as D.W.1 in her evidence gave a different version saying that when she refused to execute mortgage deed or a sale deed, the plaintiff told her that she wanted only a bond as a security for the loan amount of Rs.25,000/- and thinking that Ex.A.1 which w as brought to her was only a bond as security she signed in it. The version of the defendant in her evidence when compared with her pleading is different. However, one common factor in substance which is found in both is that the defendant took the stand that she does not know Urdu language and that she never intended to sell the suit property to the plaintiff and that she signed in Ex.A.1 only on the representation of the plaintiff that it was a bond and not an agreement of sale or an agreement of sale in which the terms were incorporated to show that it was only taken as a security. Thus her defence is that Ex.A.1 is not enforceable in either case. 10. It may be noted that Ex.A.1 agreement which is in Urdu and Ex.A.2 which is its English translation would show that the age of the defendant in Ex.A.1 is given as 75 years. However, in the plaint her age is shown as 65 years whereas in her deposition i.e. D.W.1 which was recorded on 03.07.1997 her age is shown as 70 years. It can thus be taken that the defendant was aged anywhere between to 70 to 75 years when she signed in Ex.A.1. It should now be noted that when a lady of 75 years or 70 years takes a plea that she signed a document without knowing its contents and that she does not know the language in which it is written the burden of proving that she signed or executed such a document knowing its contents lies on the opposite party. This is the position having regard to the principle that execution of a document means not merely proof of signature of the person who purports to have signed it but in such a case it should also be shown that the person signing it signed it with an intention to give effect to the document knowing its contents. This is the principle laid down by this Court in SMT. AHALYA BAI vs. GANGAPUR SHANKARAIAH AND ORS[1]. In the case on hand the defendant stated that she only learnt to sign her name in Urdu but she cannot read Urdu language or write it. The plaintiff as will be presently seen could not show or establish from her side that the defendant is fluent in Urdu or she can read and write Urdu. It is in this background and the above principle, this point has to be decided. 11. Thus going by the above principle having regard to the substance of the plea taken by her the initial burden lies upon the plaintiff to show that the defendant signed or executed Ex.A.1 agreement knowing its contents. Now on this aspect the evidence let in by the plaintiff consists of her oral evidence given as P.W.1 and the evidence of P.W.2 Sri Md.Allauddin Ansari an Advocate who is said to be the scribe of Ex.A.1 agreement. This P.W.2 in his cross-examination admitted that he did not sign Ex.A.1 as its scribe and he also admitted that there is no endorsement in Ex.A.1 to the effect that its contents were read over and explained to the defendant. It may be noted that P.W.2 is not an ordinary witness but he is a practicing advocate. The trial Court in view of the above answers of P.W.2 expressed a doubt whether P.W.2 scribed Ex.A.1 in its reasoning for dismissing the suit. 12. Be that as it may, P.W.2 as already stated supra was a practicing advocate on the date of Ex.A.1 i.e. when he says that he scribed it. In other words, he must have been knowing by the date of Ex.A.1 that in case of any litigation between the plaintiff and the defendant in connection with Ex.A.1 he may become a witness in the matter. Notwithstanding this aspect, this P.W.2 who was a practicing advocate at that time issued the original of Ex.A.4 legal notice dated 11.05.1992 and also the original of Ex.A.6 legal notice dated 12.05.1992 acting on the instructions of the plaintiff to the defendant calling upon her to execute a sale deed pursuant to Ex.A.1 agreement of sale. It is not necessary to comment on this conduct of P.W.2 going by the standards of professional conduct and etiquette rules framed under Section 49 of the Advocates Act, but it would be sufficient to note that he ceased to be an independent witness and began acting on the instructions of the plaintiff when he issued above legal notices. Thus though P.W.2 stated that the defendant executed Ex.A.1 agreement knowing fully well its contents no weight can be given to his evidence. 13. Thus the only evidence from the side of the plaintiff in her endeavour to prove that defendant executed Ex.A.1 knowing its contents is that of the plaintiff (as P.W.1) herself and she cannot be said to be a disinterested witness. It may now be noted here that in the plaint it is stated that by the plaintiff that she came to know about the defendant’s intention to sell the suit property through one Abdul Sattar a resident of Chanchalguda and she approached the defendant along with the said Abdul Sattar (see para-1 of the plaint). In her evidence i.e. in the cross-examination the plaintiff stated that apart from the son of the defendant one gentleman by name Nawab also attested Ex.A.1 agreement. P.W.2 stated that this Nawab is a property dealer and he was also present at the time of the transaction in which the defendant signed in Ex.A.1. Thus these two gentlemen i.e. Abdul Sattar and the property dealer Nawab would be the crucial witnesses who can throw light on the question whether or not the defendant executed Ex.A.1 agreement knowing its contents. The plaintiff however did not choose to examine them and no reasons are given by her for their non-examination. The plea of the defendant that she gifted the suit property to her daughter D.W.3 even prior to the date of Ex.A.1 may not assume any importance, but still the evidence of the plaintiff alone is not sufficient to hold that the plaintiff who is described as a 75 years old lady on the date of Ex.A.1 signed in Ex.A.1 or executed it knowing its contents. The plaintiff could not show that the defendant is well versed in Urdu language. The reasons for not giving weight to the evidence of P.W.2 have already been mentioned supra. In the above circumstances having regard to the defence of the defendant and her age and in view of the plaintiff’s failure to examine Abdul Sattar and the property dealer Nawab, the plaintiff’s plea that the defendant executed Ex.A.1 agreement as an agreement of sale knowing its contents and not thinking it to be a bond or as a security, must be rejected as “not proved”. Accordingly, the finding of the trial Court on this point for the aforesaid reasons is confirmed and this point is decided against the plaintiff. Point No.2: 14. On this point, the evidence of P.W.1 i.e. the plaintiff shows that she was throughout ready and willing to perform her part of the contract. In the last paragraph of her chief examination she also stated that she has even deposited the balance of sale consideration of Rs.2,60,000/- into the Court which has not been disputed. Exs.A.4 and A.6 notices given by her and her version in her evidence plus her act of depositing the balance sale consideration in the Court no doubt show that she was ready to perform her part of the agreement. The defendant however pleaded that she never executed Ex.A.1 agreement knowing its contents and that she executed Ex.A.1 only as a security for the loan of Rs.25,000/- taken by her and this case of the defendant has been upheld under point No.1. Therefore, even if the plaintiff is ready this is not going to help her in view of the finding under point No.1. This point is accordingly decided. Point No.3: 15. In view of the finding under point No.1, it follows that this appeal must fail and the same is accordingly dismissed. In the circumstances, there shall be no order as to costs. ______________________ N. RAVI SHANKAR, J 18th January, 2011. CVRK [1] 1996 (4) ALD 1088