IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN FRIDAY, THE 9TH JULY 2010 / 18TH ASHADHA 1932 SA.No. 390 of 2002() ----------------------------- AS.106/2001 of VI ADDL.DISTRICT COURT, ERNAKULAM OS.195/1996 of SUB COURT, MUVATTUPUZHA .................... APPELLANTS/APPELLANTS-DEFENDANTS --------------------------------------------------------------- 1. THANKAMMA, W/O.VARKEY,DARSANA HOUSE, KURICHY KARA AND VILLAGE, CHANGANASSERY TALUK. 2. BABU, S/O.VARKEY, DO. DO. 3. ASWATHY, W/O.SUNNY, KOCHUPURACKAL, CHENGALAM KARA AND VILLAGE, KOTTAYAM DISTRICT. BY ADV. SRI.MATHEW JOHN . RESPONDENT/RESPONDENT-PLAINTIFF ----------------------------------------------------------- FRANCIS, S/O.VARKEY,PUREPPARAMBIL HOUSE, MANARY KARA, MULAVOOR VILLAGE, MUVATTUPUZHA TALUK. BY ADV. SRI.P.P.JACOB. THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 28/06/2010,THE COURT ON 09/07/2010 DELIVERED THE FOLLOWING: rs. P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - S.A. No. 390 of 2002 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 9th day of July, 2010. JUDGMENT The defendants in a suit for specific performance are the appellants. The parties and facts are hereinafter referred to as they are available before the trial court. 2. According to the plaint allegations, the predecessor in interest of the defendants entered into an agreement for sale with the plaintiff. i.e. Ext.A1 dated 1.6.1996. It related to 2 acres of land containing a quarry and the consideration fixed was Rs.1,40,000/-. The plaintiff alleged that on the date of agreement itself, a sum of Rs. 1,00,000/- was paid as advance and the balance was to be paid on or before 30.11.1996 and the sale deed had to be executed then. In the meanwhile, the original vendor under Ext.A1 died and therefore the plaintiff approached the legal heirs, who are the S.A. 390/2002. 2 defendants in the suit, seeking execution of the sale deed in his favour. It is also alleged that in pursuance to the agreement, the plaintiff was put in possession of the property. It is alleged that on 7.10.1996 the defendants are said to have gone over to the house of the plaintiff and told him that the sale consideration for the property is too low and they intended to sell it to another person. They demanded the plaintiff to vacate the property and hand over possession to them. Therefore, the suit for specific performance was laid. 3. The defendants resisted the suit. They disputed the agreement said to have been executed by the predecessor in interest of the defendants and contended that it was a forged document. Late Varkey had no intention to sell the property. Late Varkey acquired the property under Ext.B4 dated 20.7.1994. After the death of Varkey, the defendants are in absolute possession and enjoyment of the same. Late Varkey obtained the property from Moideenkutty and his wife Nabeesa through their power of S.A. 390/2002. 3 attorney holder, i.e. George. Later George and one Kuriakose are said to have approached Varkey and sought permission to carry out quarrying in the property. Late Varkey was not inclined to accept their offer. Then George and Kuriakose tried to trespass into the property and that led to the filing of O.S.524 of 1996 before the Munsiff's Court, Muvattupuzha. An injunction order was passed against them. It is pointed out by the defendants that the plaintiff is a stooge of George and Kuriakose and that the suit was filed at their instance on the basis of a fabricated document. They pointed out that at the alleged time of execution of Ext.A1 agreement late Varkey was bed ridden and he was suffering from paralysis. He was residing along with the defendants at Changanacherry from 17.10.1995 onwards and quite often he had to go to S.H. Medical Centre at Nagampadom for taking treatment. Other allegations are also denied. On the basis of these contentions, they prayed for a dismissal of the suit. S.A. 390/2002. 4 4. The trial court raised necessary issues for consideration. The evidence consists of the testimony of P.Ws. 1 to 4 and the documents marked as Exts. A1 and A2 from the side of the plaintiff. The defendants had D.Ws.1 and 2 examined and Exts.B1 to B9 marked. Ext.X1 is the third party exhibit. 5. On a consideration of the materials before it, the trial court came to the conclusion that Ext.A1 agreement was infact executed by late Varkey and accordingly decreed the suit. 6. The defendants went up in appeal as A.S.106 of 2001. The appellate court concurred with the trial court and dismissed the appeal. Hence this Second Appeal. 7. The following substantial questions of law are seen raised in this Second Appeal: “A. Are not the judgments of the courts below vitiated on account of the gross misreading of the evidence of D.W.2, the Doctor who was S.A. 390/2002. 5 examined to prove that the executant of Ext.A1 was practically laid up on account of paralysis at the relevant time? B. Are not the judgments of the courts below vitiated on account of the fact that the courts below have embarked upon the task of comparing the disputed signatures with naked eye? C. Are not the courts below in serious error in not insisting on the respondent to prove the disputed signature as contemplated under the provisions of the Evidence Act? D. Are not the courts below in serious error in not even adverting to the discretion to be exercised while passing a decree for specific performance under Section 20 of the Specific Relief Act?” 8. Learned counsel appearing for the appellanta pressed only two contentions before this court. According to learned counsel, there is clinching evidence to show that at the alleged time of execution of Ext.A1 agreement late Varkey had been affected by paralysis and he was unable to speak and move about on his own. It is inconceivable that in S.A. 390/2002. 6 such a state of affairs, late Varkey could have gone alone in his vehicle from Changanacherry to Muvattupuzha to enter into an agreement with the plaintiff. Learned counsel referred to the medical records, which according to the defendants, would clearly show that Varkey was unable to travel at that point of time and to execute a document in the nature of Ext.A1. Learned counsel also pointed out that the appellants have filed a petition before this court to send the disputed documents for expert opinion to ascertain whether the thumb impression found on Ext.A1 belongs to late Varkey. 9. Per contra, learned counsel appearing for the respondents pointed out that there is no basis for the above contention at all. The courts below have considered the medical records produced by the defendants and they came to the conclusion that there is nothing to show that at the relevant time Varkey was incapable of executing such a document. They have also examined the witnesses and the scribe to the document and they have also deposed in S.A. 390/2002. 7 unison that the agreement was infact executed by late Varkey. There is nothing to show that the document was vitiated in any manner. It was also pointed out that nothing prevented the appellants from seeking the courts below to have the document send for expert opinion at the earliest point of time. For reasons best known to them, they refrain from doing so. According to learned counsel, it is too late in the day now to seek an expert's opinion regarding the thumb impression found in Ext.A1 document. Pointing out that none of the contentions have any basis, learned counsel prayed for a dismissal of the Second Appeal. 10. Considerable reliance is placed by the learned counsel for the appellants on Ext.X1 document and the evidence of D.W.2. Ext.X1 is the medical record. D.W.2 is the doctor who had treated late Varkey. The definite case of the appellants is that Varkey was affected by paralysis and had to undergo treatment quite often. On a few occasions, he was treated as inpatient at S.H. Medical Centre, Kottayam. S.A. 390/2002. 8 11. D.W.2 is the doctor, who had said to have attended Varkey. According to his evidence, he had treated late Varkey. He speaks about various occasions at which Varkey was admitted in the hospital. He mentioned that the ailments of Varkey are noted in Ext.X1 document, which is the medical record of late Varkey. He was initially admitted on 17.10.1995 and the history of the illness as narrated by the relatives of Varkey is noted in Ext.X1. D.W.2 recites that at that stage, Varkey was in a stupendous stage, that is the stage prior to the stage of going into complete unconsciousness. He was also informed that late Varkey had suffered a stroke. The doctor says that on 30.10.1995 when the patient was discharged, he had recovered from the stupendous stage, but he was unable to speak. His right limbs were weak, and that is recorded in Ext.X1 document. The doctor also mentions that at that stage Varkey was in an aphasia stage, that is a stage when the patient is unable to speak. That is also noted in Ext.X1. He speaks about the treatment given to Varkey on two subsequent occasions and S.A. 390/2002. 9 then he says that Varkey was last admitted on 15.7.1996. At that time, he was suffering from pneumonia. The condition of Varkey was as before. He was unable to speak at that point of time also. It is seen from the records that Varkey passed away on 23.7.1996. 12. A perusal of Ext.X1 shows the various ailments that late Varkey was suffering from and the treatment given to him. D.W.2 has categorically stated that after the initial admission in hospital on 17.10.1995 he continued in an aphasia stage and he did not recover from that state of affairs till his death. 13. Both the courts below gone on to hold that there is nothing to show that at the relevant time Varkey was ill, that he was bed ridden or that he was incapable of moving about. True, it is so. One must remember that it was the above fact which had weighed considerably with the courts below. The courts below were also greatly impressed by the evidence of P.Ws. 1 to 4 regarding the execution of Ext.A1. P.W.1 is the plaintiff, P.W.2 is a witness to Ext.A1 S.A. 390/2002. 10 agreement, P.W.3 is the scribe of the agreement and P.W.4 is a broker by profession and he claims to have intermediated between the plaintiff and late Varkey. All of them do say that Varkey had affixed his signature on the document and the scribe of the document too said that it was Varkey, who gave the details for drawing up the deed. 14. Learned counsel appearing for the appellants had pointed out that it was not possible for Varkey to give the details included in the agreement because he was not in a position to speak as would be evident from Ext.X1 and so also the evidence of D.W.2. Learned counsel also contended that it was inconceivable for Varkey to travel from Changanacherry to Muvattupuzha alone in his car. 15. There seems to be some merit in the above contention. It has already been noticed by this court that it is true that at the relevant time, there is nothing to show that Varkey was bed ridden. But the fact remains that the evidence of D.W.2 cannot be easily brushed aside so also the entries in Ext. X1. When Varkey was admitted in the S.A. 390/2002. 11 hospital on 17.10.1996 initially by D.W.2 in his hospital, he was in a stupendous stage and thereafter in an aphasia stage. Even after discharge on 13.2.1996 aphasia stage continued. That means Varkey was unable to speak. That does certainly cast a doubt on the claim of the plaintiff that Ext. A1 was infact executed by Varkey. 16. The courts below have also ventured to compare the signature of Varkey on Ext.A1 with the admitted signature of Varkey. The courts below came to the conclusion that the signature on the two documents are almost identical. 17. The question is, in the light of the evidence of D.W.2 and Ext.X1, can it be said that Varkey was capable of executing the document? The surer method would be to ensure that the thumb impression found on Ext.A1 document is that of Varkey. For that purpose, it has to be send for expert's opinion. It is felt that, that would have clinched the issue. S.A. 390/2002. 12 18. Here, one has to notice that the plaintiff claims to have been put in possession in pursuance to Ext.A1 agreement for sale. It then becomes difficult to understand when his rights are protected under Section 53A of the Transfer of Property Act, why would he venture to institute a suit for injunction. 19. Again, O.S. 524 of 1996, the suit for injunction instituted by the appellants herein against George and Kuriakose, was decreed in their favour by judgment dated 6.4.1999, a copy of which is marked as Ext.B5. This casts doubt on the claim of possession made by the plaintiff. 20. There seems to be some substance in the grievance voiced by the learned counsel for the respondent that after so long, it may not be proper to send the document for expert's opinion. But the fact remains that in the light of the discussion made above, it is only just and proper that expert's opinion is obtained regarding the thumb impression found on Ext.A1 document. It is felt that an S.A. 390/2002. 13 opportunity ought to be given to the appellants to get expert's opinion regarding the thumb impression found on Ext.A1 document. In the result, this appeal is allowed, the judgments and decrees of the courts below are set aside and the matter is remanded to trial court for fresh consideration. The trial court shall send Ext.A1 for expert's opinion, if an application to that effect is filed by the appellants within a period of one month from the date of appearing before the trial court undertaking to meet the entire expenses for getting expert's opinion. The court below may make every endeavour to procure the expert's opinion as early as possible. After getting the expert's opinion, the court below shall dispose of the suit in accordance with law. The parties shall appear before the court below on 22.7.2010. Office shall send back the records forthwith. P. BHAVADASAN, JUDGE sb.