IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR SATURDAY, THE 30TH JANUARY 2010 / 10TH MAGHA 1931 SA.No. 504 of 1997(B) ----------------------------------- AS.93/1992 of ADDL. DISTRICT COURT, KOZHIKODE OS.95/1986 of I ADDL.SUB COURT, KOZHIKODE .................... APPELLANT/RESPONDENT/PLAINTIFF: VALAPPIL KRISHNAN, S/O DAMODARAN, EDAKKAD AMSOM DESOM OF KOZHIKODE TALUK. BY ADV. SRI.A.P.CHANDRASEKHARAN SR. SRI.M.KRISHNAKUMAR RESPONDENTS/APPELLANTS/LRs OF DEFENDANT: 1. JAYAPRAKASH, S/O MEENAKSHI. 2. PRAMEELA, D/O MEENAKSHI. 3. ANURAJ, S/O MEENAKSHI. 4. ARAVINDAKASHAN, S/O MEENAKSHI. RESPONDENTS ARE RESIDING IN NADUVATTAM AMSOM AND DESOM OF KOZHIKODE TALUK. ADV. SRI.P.V.KUNHIKRISHNAN THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 30/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.Sasidharan Nambiar, J. -------------------------- S.A.No.504 of 1997 -------------------------- JUDGMENT Plaintiff in O.S.No.95/1986 on the file of Sub Court, Kozhikode is the appellant. The legal heirs of the defendant, who were impleaded in the first appeal, are the respondents. Appellant instituted the suit for specific performance of Exhibit A1 agreement for sale dated 10.8.1985 contending that deceased defendant had entered into Exhibit A1 agreement for sale agreeing to execute a registered sale deed after receiving the balance consideration of Rs.500/-, deducting Rs.20,000/- already paid through the son of the defendant and Rs.4,500/- paid on the date of execution of Exhibit A1 agreement for sale. Appellant has always been ready and willing to perform his part of the agreement and the defendant failed to perform his part and therefore, he is entitled to a decree for specific performance of the agreement for sale. In the SA 504/97 2 alternative, he sought a decree for realisation of Rs.24,500/- paid. 2. Defendant resisted the suit contending that there was no agreement for sale at all. He contended that there was no agreement to sell his property and no part of the consideration was received as alleged. After his retirement from service, appellant had some transactions with fourth respondent Anuraj, the son of the defendant, who was employed at Gudalloor and he was taken into custody by the police and to get him released on bail, appellant had obtained signed blank stamp paper from the defendant, which is made use of for creating Exhibit A1 agreement and appellant is not entitled to the decree as sought for. 3. Learned Sub Judge framed the necessary issues. On the side of the appellant, he was examined as PW1 and the scribe and one of the attesting witnesses to Exhibit A1 agreement were examined as PWs 2 and 3. Defendant was examined as DW1. Exhibits A1 to A3 were marked on the side of SA 504/97 3 the appellant and Exhibit B1 on the side of the defendant and Exhibit X1 cheque leaf was got summoned and marked on the side of the appellant. In addition, Exhibits C1 to C6 were also marked. 4. Learned Sub Judge, on the evidence, found that Exhibit A1 agreement for sale contains the signatures of the daughter and son-in-law of the defendant and on the evidence, the explanation that it was given as a blank signed stamp paper cannot be accepted. But, the learned Sub Judge found that there was no agreement for sale and it could only be a monetary transaction and therefore, held that appellant is entitled to get a decree for realisation of Rs.24,500/- with 6% interest and not specific performance of the agreement. The suit was decreed accordingly. Defendant filed A.S. No. 93/1992 before District Court, Kozhikode challenging the judgment and decree. When the appeal was pending, defendant died and respondents were impleaded as additional appellants. SA 504/97 4 5. Learned Additional District Judge, on re- appreciation of the evidence, found that there was no consensus ad idem between the parties with regard to the agreement for sale and when there is no agreement for sale, learned Sub Judge should not have granted a decree for payment of the amount, especially when, the allegation is that payment was made not to the defendant, but to the son of the defendant, through the son-in-law of the defendant. Appeal was allowed. The decree for realisation of money was set aside and the suit was dismissed. It is challenged in this second appeal. 6. Second appeal was admitted formulating the following substantial questions of law: 1. When the plaintiff alleges execution of a written agreement for sale by the defendant and the defendant admits only his signature, does not the burden lie on the defendant to explain as to how his signature happened to be in the document and in this case, the courts having found that defendant had not discharged his burden, should not it be presumed that Exhibit A1 is genuine? 2. Whether the appellate court's view that the document would not amount to an agreement for SA 504/97 5 sale, would not it amount to receipt of money paid and should not the court grant a decree for the advance amount with its interest? 7. Learned counsel appearing for the appellant and respondents were heard. 8. Exhibit A1, the unregistered agreement for sale, shows that defendant, the executant of the document, had agreed to sell ten cents of property shown therein to the appellant for a total consideration of Rs.25,000/-, namely, Rs.2,500/- per cent. As per Exhibit A1, out of the consideration, appellant had paid Rs.20,000/- through M.T.Kunhibalan, the son-in-law of the defendant to Anuraj, the son of the defendant, on 22.2.1985 and Rs.4,500/- was paid on the date of execution of Exhibit A1 agreement for sale and Rs.500/- alone remains to be paid and appellant agreed to pay the same and get the sale deed executed within six months from the date of execution of the agreement. Exhibit A1 shows that the property agreed to be sold was not properly SA 504/97 6 described. The description of the property is only that it is ten cents of property in R.S.No.19/3, a portion of the residential compound of the defendant, which lies to the east of the house and to the west of the way. Normally, if a genuine agreement for sale is executed, one would, definitely, expect to describe the property without any ambiguity so as to avoid any further complication. Learned Sub Judge and learned Additional District Judge, on proper appreciation of evidence, found that even when Rs.20,000/- was allegedly paid by the appellant, he did not even see the property, which was sought to be purchased under Exhibit A1. Even before execution of Exhibit A1, appellant did not get the property measured to fix the property that is to be obtained under the sale deed. These are not the conduct of an ordinary prudent man who enters into an agreement for sale. It is more so, when, admittedly, appellant was employed as a Bench Clerk in a civil court for more than a decade and retired as Sheristadar of Sub SA 504/97 7 Court, who had occasion to see innumerable agreements for sale, in his official capacity. Added to this, when the total consideration to be paid for purchase of the property is Rs.25,000/-, in the ordinary course, the proposed purchaser is not expected to pay Rs.20,000/- for the property, six months' prior to the execution of the agreement for sale, without getting any receipt or acknowledgment, at a time when he had not even seen the property. Added to this, there was no impediment for the appellant or the defendant to execute a sale deed instead of execution of Exhibit A1 agreement for sale on that date, because what remained to be paid by the appellant under Exhibit A1 is only Rs.500/-. As rightly found by the courts below, evidence of the appellant, as PW1, establishes that he had no difficulty for making payment of that amount on that day. Exhibit A1 does not show that there was any necessity for the defendant also to protract execution of the sale deed, if, in fact, a sale deed is to be executed. SA 504/97 8 All these inherent facts establish that Exhibit A1 was not executed, even if executed, as an agreement for sale. Learned Sub Judge and learned Additional District Judge had properly appreciated the evidence on these aspects and found that there was no consensus ad idem with regard to any sale of the property to the appellant. That finding of fact does not warrant any interference, even if the evidence is re-appreciated. 9. Argument of the learned counsel appearing for the appellant is that even if it is taken that Exhibit A1 was not executed as an agreement for sale, it establishes that Rs.24,500/- was paid by the appellant and defendant had acknowledged that liability and therefore, learned Additional District Judge was not justified in reversing the decree of the trial court which directed the defendant to repay that amount. As rightly found by the learned Additional District Judge, the question of granting a decree in favour of appellant by invoking clause (b) of Section 22 of Specific SA 504/97 9 Relief Act would arise only if there was a valid agreement for sale. When it is found that there was no agreement for sale at all and there was no consensus ad idem for sale, appellant is not entitled to claim back the amount on the ground that he is not entitled to a decree for specific performance of the agreement for sale. 10. It is then argued that Exhibit A1 establishes that Rs.24,500/- was paid by the appellant and received by the defendant and it is to be treated as a receipt or acknowledgment of the liability and therefore, a decree for money should have been passed. If Exhibit A1 shows that defendant had received the amount from the appellant and he acknowledged the liability to repay the same, a decree could have been passed. But, that is not the case herein. Though it is argued by the learned counsel appearing for the appellant that as the defendant failed to establish under what circumstance a blank signed stamp paper, seen in Exhibit A1, happened to be with the SA 504/97 10 appellant, except as claimed by the appellant, it is to be found that Exhibit A1 was executed especially when the two attesting witnesses to Exhibit A1, the daughter and son-in-law of the defendant, were not examined, admission of signature in a document or in a blank stamp paper, is not admission of execution of the document. When execution of the document is denied, the burden is, definitely, on the party, who asserts that there was execution, to prove that it was executed by the opposite party. That burden cannot be shifted to the defendant, as canvassed by the appellant, on the ground that the opposite party admits the signature seen in the document. The burden is on the appellant to prove that Exhibit A1 was executed by the defendant. The question is whether there is sufficient evidence to prove execution. 11. Though PW2, who claims to be the scribe, was examined, Exhibit A1 does not show that he was the scribe of the document. He is not a signatory to the document. PW3 was examined as one of the SA 504/97 11 attesting witnesses to Exhibit A1. Learned Additional District Judge properly appreciated the evidence. If evidence of PW3 is to be believed, it is to be believed that he had signed in two papers at the time of execution of the agreement. PW3 also deposed that the other two witnesses had also signed in two papers at the same time. Exhibit A1 shows that they have put their signatures only in the second page of Exhibit A1 and not in the fist page. That itself is sufficient to disbelieve the evidence of PW3. Added to this, evidence of PW3 is that PW1 disclosed to him that he had paid the amount to the son of the defendant earlier and there is no way for him to realise the same and therefore, he has decided to purchase the property. It is not the case of the appellant. On a proper appreciation of the evidence of PWs 2 and 3, it is absolutely clear that their versions cannot be believed to prove execution of the document, in the circumstances of the case. The fact that defendant did not examine his daughter and son-in-law, for SA 504/97 12 that failure, it cannot be held that execution of Exhibit A1 is proved. Even if the daughter and son- in-law were examined, it could have been argued that being the daughter and son-in-law, their interested evidence cannot be believed. In such circumstances, on that ground also, it cannot be said that execution of Exhibit A1 was proved. 12. Even if it is taken that Exhibit A1 is accepted and the payment stated therein is believed, the question is whether appellant is entitled to a decree for realisation of the amount. Exhibit A1 shows that Rs.20,000/- was paid to Anuraj, the son of the defendant on 22.2.1985 through Kunhibalan, his brother-in-law. Appellant sought to prove this payment by summoning Exhibit X1 cheque leaf, apart from his evidence. Exhibit X1 shows that a cheque for Rs.20,000/- was encashed by the appellant from the Bank on 22.2.1985. Exhibit X1 will not establish that, that amount was paid to Anuraj through Kunhibalan, the son-in-law of the defendant on that date. At best, it would SA 504/97 13 corroborate the claim of the appellant that he had Rs.20,000/- with him on that day. But, as against the allegation in Exhibit A1 that Rs.20,000/- was paid to Anuraj through Kunhibalan, evidence of PW1 is that he had gone to the Bank along with Anuraj and thereafter encashed Exhibit X1 cheque and paid that amount to Anuraj. There is no case that, that payment was made to Kunhibalan, with a direction to pay the same to the defendant. True, PW1 had deposed that Kunhibalan was also present at that time. Presence of Kunhibalan will not make any difference, if the payment was made directly by the appellant to Anuraj. If payment was in fact made by the appellant to Anuraj, normally, there will not be a statement in Exhibit A1 that the said payment was made through Kunhibalan. Therefore, that evidence of PW1, which is against the recitals in Exhibit A1, cannot be accepted. There is no evidence to prove that as seen in Exhibit A1, any amount, much less Rs.20,000/-, was paid to Kunhibalan and that was paid to Anuraj by SA 504/97 14 Kunhibalan. In such circumstances, even the payment alleged in Exhibit A1 is disproved by the evidence of PW1. Even if any payment was made to Anuraj, appellant is not entitled to get a decree for realisation of the money against the defendant as granted by the trial court. It was rightly set aside by the learned Additional District Judge. I find no reason to interfere with the judgment and decree passed by the first appellate court. Appeal is dismissed. No costs. 30th January, 2010 (M.Sasidharan Nambiar, Judge) tkv SA 504/97 15 M.Sasidharan Nambiar, J. -------------------------- S.A.No.504 of 1997 -------------------------- JUDGMENT 30th January, 2010