IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 30TH SEPTEMBER 2010 / 8TH ASWINA 1932 AS.No. 76 of 2002(D) ------------------------- OS.187/1990 of SUB COURT, MANJERI .................... APPELLANT(S): PLAINTIFF. ------------------------------- UNNIMUHAMMED, S/O. KODITHODI UNNIMOIDEEN HAJI, MORAYOOR AMSOM AND DESOM, ERNAD TALUK, MALAPPURAM DISTRICT. BY ADVS. SRI.A.P.CHANDRASEKHARAN, SENIOR ADVOCATE SMT.PRABHA R.MENON SRI.PUSHPARAJAN KODOTH SRI.M.KRISHNAKUMAR SRI.K.JAYESH MOHANKUMAR RESPONDENT(S): RESPONDENT ------------------------------------ MUHAMMEDKUTTY, S/O. KODITHODI UNNIMOIDEEN HAJI, AGRICULTURIST, RESIDING AT WANDOOR AMSOM & DESOM, ERNAD TALUK, MALAPPURAM DISTRICT. THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 30/09/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: SVS/ M.N.KRISHNAN, J. ------------------------- A.S. No. 76 of 2002 ------------------------------------- Dated this the 30th day of September, 2010. J U D G M E N T This is an appeal preferred against the judgment and decree of the Subordinate Judge's Court, Manjery in O.S. No. 187/1990. The suit is one for specific performance of a contract. Plaintiff and defendant are brothers and they are children of one Unnimoideen Haji. This Unnimoideen Haji had executed a gift deed in the year 1961 and the present plaint schedule property is a part of the said document, which is a residential house with compound. It is the case of the plaintiff that on 02.10.1987, the plaintiff and the defendant entered into an agreement whereby it was agreed that the plaintiff would give a sum of Rs.1,00,000/-, towards the value of the defendant's share on receipt of which he will execute a document. It is also submitted that Rs. 50,000/- had been paid and the plaintiff was always ready and willing to pay balance Rs. 50,000/- and that had been duly intimated to the defendant and therefore the plaintiff has filed the suit for specific performance of the contract. A.S. No. 76 of 2002 2 2. On the other hand, the defendant would contend that there has been no such agreement and the plaintiff had fraudulently misused the blank signed stamp papers and other papers, which he had received from the defendant with the representation that he wanted to create a mortgage over the property and therefore, the plaintiff is not entitled to the decree for specific performance. The trial Court on an exclusive consideration of the materials, that is, the evidence of PWs 1 to 8 and DW1 and Exts. A1 to A26, arrived at a decision that the agreement is not proved and therefore, declined specific performance. It is against that decision, the plaintiff has come up in appeal. Though notice is served on the respondent, he had chosen to remain exparte. 3. Heard the learned Senior Counsel for the appellant. He would content that documents and evidence supplied are sufficient to indicate the conduct of the parties and there is real evidence available to prove the execution of the document. The plaintiff has to cause so many hurdles in the case, first in the form of the non production of the original agreement. It has been submitted that the original agreement has been lost and the petition was filed to A.S. No. 76 of 2002 3 receive notarised attested photocopy of the agreement. The learned trial judge had considered the materials and held that there is evidence to show that the original has been lost and the notary attested photocopy of the agreement has been properly proved and therefore, in the absence of the primary evidence, the secondary evidence is admissible and therefore, marked the document as Ext.A26 in this case. I find that the said finding is in order, which does not call for any interference. 4. Then the learned Subordinate Judge, considered the burden regarding the proof of execution of the documents. It is also stated that the burden is to prove the execution of the documents, when the execution is denied by the other side. The trial Judge had relied on a decision of this Court reported in (2001 (1) KLT 392) Velayudhan Vs. Velayudhan, Division Bench of this court held that the mere putting proof of signature is not sufficient to prove the execution of the document. But the court very clearly held that when there is a prima facie evidence regarding the signature of the person and then the burden of the plaintiff will be lightened and any acceptable evidence tendered in that regard will A.S. No. 76 of 2002 4 prove the execution of the document. It is on the basis this it has to be stated that the parties are brothers. A perusal of the entire documents revealed that the father of the parties had large number of properties and there was a ceiling case and in the presence of the mediators brothers had attempted to settle. Now the trial Court held that direct evidence available so far as it relates to execution of Ext.A26 document is that of PWs1 and 5. The trial court simply brushed aside the evidence of PW1 stating that it is interested testimony of evidence. It is not proper. PW5's evidence is not believed on the ground that he had stated in cross-examination that he signed in an agreement relating to partition. It has to be remembered the witness is not an educated person and he is an ordinary person and the documents made available in the case would reveal that there has been large number of mediation talks with respect to the partition of the property as well in this case. There is also some agreement with respect to transferring the right of the mother in favour of the defendant. It is a settled principle that it is not the quantity that matters but it is the quality that matters I had read the evidence of PW5 with the help of the learned A.S. No. 76 of 2002 5 counsel for the appellant. A reading of the chief examination of PW5 would reveal that there has been a mediation with respect to the properties in the presence of respectable mediators, who are village officers such as Sainuddin, Kunhan and Padmanabhan. He had also deposed in relation to the house at Morayoor. The value was fixed at Rs.1,00,000/- towards the share of the defendant and to 50,000/- was given. It is further stated by him that in the presence of the Circle Inspector, Moosa an amount of Rs.50,000/- was paid to the defendant and an agreement was executed and he had signed as a witnesses in the document. Therefore, the chief examination would convincingly establish that he had participated in the mediation relating to the properties and he was a witness to Ext.A26 document. It is true that in the cross-examination, he had stated that he had read the document and he had signed in a partition Karar. It has to be remembered that even the defendant has no case that there was a mediation and a partition Karar between the parties wherein Padmanabhan had signed as witness. Therefore, I am inclined to hold that PW5 has participated in the mediation and he had signed as a witness in the document and the A.S. No. 76 of 2002 6 evidence given by him in relation to Ext.A26 does not suffer from any serious infirmity, which requires rejection. It can be seen that the prior to the execution of the agreement on 02.10.1987, there had been serious talk going on between the parties. One Village Officer, namely, Padmanabhan had written two letters as Ext.A3 and A4. Ext.A3 is written on 07.09.1987 and Ext.A4 written on 01.10.1987. It is true that the said Padmanabhan is not alive. But handwriting of Padmanabhan is proved by examining his son, who has been examined as PW3. He had stated in the evidence that Exts.A3, A4 and A25 documents are in the handwriting of his father. A meticulous reading of Ext.A3 would reveal that the parties had decided to have a meeting in the traveller's bunglaw and the defendant has got records and the other witness will come with and so that a schedule can be prepared with respect to the partition. But Ext.A4 is another letter dated 01.10.1987. It is written therein that the said Padmanabha Menon will proceed the house of the circle inspector, Wandoor and join them on 02.10.1987 at 8.30 A.M. and thereafter document has to be written and money has to be paid. So Exts.A3 and A4 documents would certainly reveal that there was A.S. No. 76 of 2002 7 a talk between the parties and it was decided to resolve the disputes and executed agreement in the residence of Moosa in the presence of the mediators and it was also agreed that amount has to be paid to the defendants. So Exts. A3 and A4 really show the transaction and when Ext.A26 is dated 02.10.1987 and it is spoken to by PW5 withrespect to the genuineness of the same it may not be correct on the part of the court to brush aside the same on the ground of solitary inconsistency. Now it has also to be stated regarding, the conduct of the defendant withrespect to the other properties, there was a partition suit instituted by the sister against the plaintiff and defendant. The plaintiff was conducting the suit and the defendant did not take any active participation, but subsequent to the filing of the present suit by the plaintiff for specific performance of the contract, defendant rushed to the court and filed a written statement and taken up a contention to the effect that he had given signed blank papers to the plaintiff in the case. At the out set, it has to be stated that the subject matter of this agreement was not an issue in the other suit. The present suit had been filed and the present defendant did not partake in the other A.S. No. 76 of 2002 8 partition suit till the plaintiff filed this suit. So it was only to create a defence in this suit that the defendant rushed at a last stage to the court and file a written statement regarding the blank signed papers. Further it has to be stated that the contention filed in this suit and the contentions in the other written statement are totally inconsisent for the reason that the contention is raised to the effect that blank signed papers were obtained for the purpose to get money by mortgaging the property whereas, it is stated that in the other case that blank signed papers were obtained, when he was lying in the hospital. So the inconsistency regarding the plea of the custody of blank signed papers also looms large in this background. 5. One other circumstance, which the trial Judge found was that there was an affidavit in the form of Ext.A16 filed by the mediators in the suit at the stage of interlocutory proceedings. Unfortunately two of the persons, who had sworn to the affidavit died. It was contended that one person who had signed the affidavit was examined as PW5 and the other two other witnesses who had sworn to that affidavit are no more. In order to prove their signature their relatives and children had been examined as well. A.S. No. 76 of 2002 9 The learned trial Judge found that it is stated in the affidavit that the mediation was effected in the presence of PW8 whereas, PW8 had deposed that he was not there. But it may not be correct to totally ignore the other paragraphs of the affidavit in order to arrive at a decision that the other witnesses had not signed. So the following facts had emerged would reveal that the case of the defendant is not true. 1. His attitude in making different plea with respect to the blank signed papers. 2. The factum of execution of Ext. A26 is proved by PW1 and especially by PW5 who is an attesting witnesses and whose evidence appears to be natural and probable. 3. The previous conduct of the parties especially in the back drop of the letters, Exts. A3 and A4, which indicates that the parties wanted at a settlement and one of the mediators namely, village officer had taken the keen initiative and the agreement had been executed. Therefore, I disagree with the learned Sub Judge in arriving at a decision that Ext. A26 is not proved. I hold that from the materials available and the preponderance of probability it only A.S. No. 76 of 2002 10 shows that Ext.A26 had been entered into between the plaintiff and defendant and therefore, the defendant is entitled to sue on the strength of Ext.A26. 4. Then, the next question for determination is regarding the grant of relief of specific performance. It is averred in the plaint and that it has been spoken to and it is also available from the conduct of the plaintiff and he is ready and willing to perform the contract. The defendant has no case that the plaintiff had no financial capacity to pay the amount and therefore, that also to be found in favour of the plaintiff. Then so far as the discretionary jurisdiction vested under Section 20 of the Specific Relief Act is concerned, it is true that the parties are not at liberty as a right to get a decree of specific performace and there is discretionary power for the court. When it is applied to the facts and circumstances of the case, it would be revealed that it has to be applied in favour of the plaintiff and plaintiff alone and therefore, I grant a decree for specific performance as well. From these discussions, the appeal has to be allowed and I do so. A.S. No. 76 of 2002 11 In the result, the judgment and decree of the trial court are set aside and a decree for specific performance is passed as follows: The plaintiff is given a decree for specific performance on condition that he deposits the balance amount of Rs.50,000/- within a period of two months from today before the trial court. If the defendant fails to execute the document within the stipulated period, the plaintiff is at liberty to move the court as contemplated under the Specific Relief Act and get it executed by the court in his favour. The amount so deposited shall be withdrawn by the defendant as balance consideration. Considering the relationship between the parties, I direct both the parties to bear their respective costs. M.N.KRISHNAN, JUDGE ln.