IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 8TH JANUARY 2010 / 18TH POUSHA 1931 RSA.No. 14 of 2010() -------------------- AS.50/2001 of SUB COURT, CHERTHALA OS.221/1999 of PRINCIPAL MUNSIFF COURT, CHERTHALA .................... APPELLANTS/ADDITIONAL RESPONDENTS 2 TO 7/LRS OF ORIGINAL DEFENDANT: ---------------------------------------------------- 1. BABY,W/O.SREEDHARAN,KALAVANCHIRA, KADAKKARAPPALLY,CHERTHALA. 2. AMBIKA,D/O.SREEDHARAN,-DO- -DO- 3. SATHEESAN,S/O.SREEDHARAN, -DO- -DO- 4. RAJAMMA,D/O.SREEDHARAN, -DO- -DO- 5. BAIJU,S/O.SREEDHARAN, -DO- -DO- 6. LIJI,D/O.SREEDHARAN,-DO- -DO- BY ADV. SRI.J.OM PRAKASH RESPONDENT(S): APPELLANT/PLAINTIFF ---------------------------------- BHASKARAN,S/O.VASU,NIKARTHIL,UZHUVA MURI PATTANAKKAD,CHERTHALA TALUK,ALAPPUZHA DISTRICT. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 08/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- R.S.A.No.14 of 2010 -------------------------------------- Dated this the 8th day of January, 2010. JUDGMENT Respondent claimed that he entered into Ext.A1, agreement dated 29.10.1998 with the deceased defendant for purchase of property belonging to the deceased defendant for a total consideration of Rs.88,000/- and paid Rs.25,000/- by way of advance. It was stipulated that the sale deed will be executed in favour of respondent on or before 28.2.1999. Respondent claimed that he was always ready and willing to perform his part of the contract and since deceased defendant was not agreeable to perform the contract he issued Ext.A2, notice dated 20.2.1999 requiring the deceased defendant to perform his part of the contract by receiving balance sale consideration and executing sale deed. That was not complied. After respondent instituted the suit demanding specific performance of the agreement, deceased defendant sent Ext.A5, reply. In Ext.A5, reply and written statement filed by the deceased defendant it is contended that there was no agreement for sale, nor had he executed any such agreement or received advance sale consideration but he had availed a loan of Rs.25,000/- from the respondent and as a security, given two signed blank stamp papers of Rs.50/- denomination. That has been misused by the respondent. Respondent gave evidence as PW1. PW2 is the scribe and PW3 is another witness to the transaction. PWs 1 to 3 gave evidence regarding alleged execution of the agreement on 29.10.1998 at about 7-8 p.m. at the RSA No.14/2010 2 residence of the deceased defendant. It is their case that the agreement was attested by DW2, son of deceased defendant. Deceased defendant gave evidence as DW1. He claimed that he had borrowed Rs.25,000/- from the respondent about 10-20 years back and given signed blank stamp papers. He also claimed that he had not subscribed his signature (in any document) even once during the last seven years. DW2, son of deceased defendant denied that there was any such agreement for sale and that he had signed Ext.A1 as a witness. Trial court after referring to the evidence concluded that execution of Ext.A1 is not proved and dismissed the suit. Respondent took up the matter in appeal. First appellate court came to the conclusion that due execution of the agreement is proved and that nothing is brought out to deny specific performance of the agreement for sale exercising discretionary jurisdiction in favour of deceased defendant. Accordingly decree for specific performance was granted. That is under challenge in this Second Appeal at the instance of legal representatives of deceased defendant. Substantial question of law urged in the memorandum of appeal are whether finding of the first appellate court regarding due execution of Ext.A1 is correct and whether first appellate court was legally correct in holding that respondent was ready and willing to perform his part of the contract. It is argued by learned counsel for appellants/legal representatives of deceased defendant that there was no reason for the first appellate court to reverse the well reasoned and discussed judgment of the trial RSA No.14/2010 3 court which referred to the facts, evidence and circumstances. It is also argued by learned counsel that going by the judgment of first appellate court, there is no proper discussion of the evidence given by the deceased defendant regarding due execution of Ext.A1 and instead, first appellate court was picking holes in the evidence of deceased defendant. Learned counsel submitted that there is nothing on record to show that respondent was ready and willing to perform his part of the contract and it is not even stated so in his deposition. 2. No doubt trial court found against execution of Ext.A1. That is based on some discrepancy in the evidence of respondent regarding the date on which the stamp papers for preparation of Ext.A1 were purchased. Ext.A1 revealed that stamp papers were purchased on 27.10.1998 but according to the respondent it was obtained on 28.10.1998. Another circumstance found by the trial court is the evidence of DW2 (son of deceased defendant) who denied having signed Ext.A1 as a witness. Trial court observed that the signature of DW2 in his deposition differed from his signature in Ext.A1. Trial court also found discrepancy in the evidence of PWs 1 to 3. First appellate court found that the reasons stated by the trial court for finding against due execution of Ext.A1 are unsustainable. RSA No.14/2010 4 3. One argument raised before me is that first appellate court has not properly adverted to the evidence of respondent as PW1 regarding due execution of Ext.A1. I have gone through the judgment of the first appellate court. It is seen that the evidence of PWs 1 to 3 has been narrated in detail in the judgment. Paragraph No.11 of the judgment contains argument of learned defence counsel as to the unacceptability of the evidence of respondent. In paragraph No.12 of the judgment, learned District Judge has referred to the evidence of PWs 1 to 3 and contentions raised against its acceptability and it is stated that the acceptable evidence tendered by PWs 1 to 3 when analysed in the light of the self contradictory evidence tendered by the deceased defendant regarding nature of transaction and the manner in which stamp papers signed by him reached the hands of respondent affected the case pleaded by the deceased defendant. It is also seen that the evidence of respondent referred to earlier was considered by the first appellate court along with the evidence let in by the deceased defendant before concluding that the trial court was not justified in finding against execution of Ext.A1. I am unable to accept the contention that first appellate court has not considered the evidence. 4. It is apposite to refer to the evidence let in by the parties to ascertain whether the finding entered by the first appellate court is sustainable on evidence or is perverse so that a substantial question of law is involved in that RSA No.14/2010 5 regard. PWs 1 to 3 have given evidence regarding execution of Ext.A1 at the house of deceased defendant on 29.10.1998. According to PWs 1 and 3 it was around 7 p.m. while PW2 stated that time was around 8 p.m. On going through the judgment I do not find any material discrepancy in the evidence of PWs 1 to 3 regarding due execution of Ext.A1. First appellate court also referred to the signature of deceased defendant in Ext.A1 and compared the same with the signature in Ext.A4, acknowledgment card and the summons issued from the trial court, admittedly signed by the defendant. First appellate court observed that those signatures closely resembled, it is not as if court is powerless to compare admitted signature with the disputed signature. Section 73 of the Evidence Act empowers the court to do so. The only precaution to be taken is that the decision in the case shall not be based on result of comparison alone. DW2, son of deceased defendant denied being a witness in Ext.A1. Trial court observed that signature of DW2 in his deposition differs from his disputed signature in Ext.A1. It is trite law that for comparison post litem signatures cannot be used. Son of deceased defendant (DW2) who was aware of the claim against his father may have put his signature in the deposition in a way different from his admitted signature. If the dispute regarding signature of DW2 in Ext.A1 was genuine proper course was to produce his admitted signature prior to Ext.A1 for comparison. No such attempt was made. Reason persuades me to think that if Ext.A1 were the result of forgery, the forgeror RSA No.14/2010 6 would not have cited son of deceased defendant (DW2) as a witness in Ext.A1 giving occasion for a comparison of the signatures and invited evidence against due execution of the document and in favour of its alleged forgery. Evidence shows that Ext.A1 was executed at the house of deceased defendant. First appellate court has also referred to the evidence of deceased defendant as DW1. His version in the written statement and in Ext.A5, reply was that he had signed two blank stamp papers of Rs.50/- denomination. In evidence he stated that he only signed one stamp paper. But Ext.A1 shows that it consists of two stamp papers of Rs.20/- denomination and one stamp paper of Rs.10/- denomination. There is no case for the deceased defendant that he had signed such stamp papers as seen from Ext.A1. It is difficult to think that signed blank stamp papers taken about 20 years back was made use of to forge Ext.A1. Ext.A1 shows that the stamp papers were purchased on 27.10.1998 while the alleged execution was on 29.10.1998. First appellate court has also referred to the evidence of DW1 and the material contradictions in it. Learned counsel for appellants would submit that DW1 has given evidence at a time he was aged about 80 years and that he was not in a position to give proper evidence. Having put the defendant into box and examined him in chief, I am not inclined to think that in respect of the answers given in cross examination which did not suit him, DW1 should be given allowance stating that he was aged 80 years. RSA No.14/2010 7 First appellate court has referred to the evidence and found rightly that the view taken by the trial court as to the execution of the document is not sustainable and accordingly found in favour of its due execution. 5. Another argument raised by the learned counsel is that respondent in his evidence has not stated that he is still ready and willing to perform his part of the contract. He stated that he was ready and willing. No doubt, the tense used is past tense. But what is required is not merely a statement on the part of the purchase. Court has to look into the proved circumstance to find whether purchaser was ready and willing to perform his part of the contract. In the plaint respondent has stated and as PW1 he has deposed that he was always ready and willing to perform his part of the contract. On 20.1.1999 Ext.A2 notice was sent demanding performance of the contract. The institution of the suit is also another indication that respondent wanted the defendant to specifically perform Ext.A1. There is nothing on record to show that respondent was not ready and willing to perform the contract after the institution of the suit. 6. Regarding exercise of discretionary jurisdiction is concerned, first appellate court has observed that there is nothing on record to exercise the discretionary jurisdiction in favour of the deceased defendant. It is in the above circumstances that the first appellate court granted decree for specific RSA No.14/2010 8 performance. On going through the judgment under challenge and hearing learned counsel and also referring to the evidence on record which is supplied to me for perusal by the learned counsel I do not find any substantial question of law arising for a decision by this Court. Resultantly the Second Appeal is dismissed in limine. I.A.Nos.38 & 39 of 2010 will stand closed. THOMAS P.JOSEPH, Judge. cks