IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 29TH JUNE 2011 / 8TH ASHADHA 1933 RSA.No. 1119 of 2004() ---------------------- OS.176/1995 of SUB COURT, PAYYANNUR AS.164/1998 of ADDL. DISTRICT COURT, THALASSERY .................... APPELLANT/RESPONDENT/DEFENDANT -------------------------------------------------- CHOOVATTA VADAKKEKARA KUNHI VEETTIL JANARDHANAN S/O. NARAYANI AMMA, VELLUR AMSOM DESOM, P.O.VELLUR, VIA.PAYYANNUR, KANNUR DISTRICT. BY ADV. SRI.KALEESWARAM RAJ RESPONDENT(S): APPELLANT/PLAINTIFF ---------------------------------- MOTTUKKANDE KARUNAKARAN, S/O. PARU AMMA, RESIDING AT KANDOTH PAYYANNUR, TALIPARAMBA TALUK, KANNUR DISTRICT. ADV. SRI.M.V.AMARESAN FOR R1 SRI.V.N.RAMESAN NAMBISAN FOR R1 THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 29/06/2011 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J ........................................... RSA No.1119 OF 2004 ............................................ DATED THIS THE 29th DAY OF JUNE, 2011 JUDGMENT Defendant in a suit for specific performance of an agreement for sale is the appellant. Plaintiff is the respondent. Respondent instituted O.S.176 of 1995 before Sub Court, Payyannur for specific performance of Ext.A1 agreement for sale dated 29.11.1994 contending that appellant agreed to sell the plaint schedule property for a consideration @ Rs.2700/- per cent and received Rs.10,000/- as advance towards the sale consideration and agreed to execute a sale deed within eight months after measuring and satisfying the extent to the respondent, on the respondent paying the balance consideration. It was alleged that in spite of the oral demand to execute the sale deed, appellant did not execute it. Therefore Ext.A2 notice was sent demanding execution of the sale deed. Appellant failed to execute the sale deed. A decree for specific performance of Ext.A1 agreement was sought. Appellant resisted the suit denying the agreement for sale or execution of Ext.A1 agreement. RSA 1119/2004 2 According to the appellant, he had borrowed Rs.10,000/- from the respondent to perform the ceremonies connected with the death of his mother and as insisted by the respondent, he had handed over signed blank stamp paper to the respondent. He subsequently repaid Rs.5000/- with interest, though respondent did not issue a receipt. Ext.A1 agreement was created using the said signed blank paper. Appellant is not liable to execute the sale deed. 2. Learned Sub Judge on the evidence of the respondent as PW1, the scribe of Ext.A1 as PW2 and the appellant as DW1, Exts.A1 to A5, B1, C1 and C2 found that there was no agreement for sale of the plaint schedule property between the appellant and the respondent. But on the admission of the appellant that he borrowed Rs.10,000/- and he failed to establish the discharge it was held that respondent is entitled to a decree for realisation of Rs.10,000/- with interest at the rate of 18% per annum from 29.11.1994, till realisation. The plaint schedule property was made a charge for the amount. Respondent challenged the judgment before District Court, Thalassery in A.S.164 of 1998. Learned Additional District Judge, on reappreciation of the RSA 1119/2004 3 evidence, found that Ext.A1 agreement was executed by the appellant agreeing to sell the plaint schedule property and received Rs.10,000/- and respondent has always been ready and willing to perform his part of the agreement and therefore respondent is entitled to a decree for specific performance of the agreement. The suit was decreed directing the appellant to execute a sale deed in favour of the respondent on the respondent depositing the balance sale consideration within three months. The judgment is challenged in the second appeal. 3. The second appeal was admitted formulating the following substantial questions of law. “1) Whether the appellate court has not gone wrong in finding that Ext.A1 agreement was validly executed. 2) Whether appellate court has exercised its discretion under Section 20 of the Specific Relief Act correctly. 4. Learned counsel appearing for appellant and respondent were heard. 5. Learned counsel appearing for appellant pointed out that learned Sub Judge, who had occasion to note the demeanor of witnesses, had properly appreciated the evidence and found that RSA 1119/2004 4 Ext.A1 agreement was not proved and there was no agreement for sale as claimed by the respondent and in spite of the specific plea taken by the appellant that he did not execute Ext.A1 agreement and did not agree to sell the plaint schedule property, learned District Judge wrongly proceeded on the basis that appellant admitted execution of the agreement and without proper appreciation of evidence upheld Ext.A1 and directed specific performance of the agreement. Learned counsel would argue that in spite of the denial of execution, even though Ext.A1 shows that there are two attesting witnesses, respondent did not examine any one of them. It was argued that apart from the respondent, only PW2, the scribe was examined and even PW2 has no case that appellant executed Ext.A1 in his presence and PW1, the respondent did not depose that the appellant executed Ext.A1 in his presence and therefore it should have been found that execution of Ext.A1 agreement was not proved. Learned counsel also pointed out that Ext.A1 shows that only appellant had signed in the document and not the respondent, which will not ordinarily be the case if it was a genuine agreement for sale as in a sale agreement both parties have to RSA 1119/2004 5 sign, as otherwise the other party who alone executed the document may have no remedy and this aspect was not properly considered by the first appellate court. Learned counsel also pointed out that a perusal of Ext.A1 shows that Ext.A1 was not an agreement for sale executed by the appellant as signature of the appellant is seen, in between the signatures of the two attesting witnesses and there is no signature of the appellant on the second page of Ext.A1 and the name of the purchaser of the stamp paper is not that of the appellant and the evidence of PW2 shows that instructions to prepare Ext.A1 was not given by the appellant, but by two brokers who are the attestors and they were not examined and in such circumstances, learned Additional District Judge should not have upheld Ext.A1. Learned counsel also pointed out that even if it is taken that there was an agreement for sale, on the facts, a decree for specific performance should not have been granted, when it was refused by the trial court. Learned counsel pointed out that the plaint schedule property lies very near to the National Highway and is having 20 coconut trees and the consideration of Rs.2700/- per cent is disproportionate to the then prevailing value of the RSA 1119/2004 6 property and though PW1 claimed that he has been in possession of the property, covered under Ext.A1, neither Ext.A1 nor the plaint show that the property was put in the possession of the respondent and in such circumstances, the first appellate court should not have granted a decree for specific performance of the agreement for sale. The learned counsel relied on the Division Bench decision of the High Court of Gujarat in Abdul Satar V. Manilal (AIR 1970 Gujarat 12), Single Judge decision of the High Court of Punjab and Haryana in Sujan Kaur V. Chand Singh (AIR 2003 Punjab & Haryana 364) and decision of the learned Single Judge of this court in Lalithambika V. Varghese (2004 (3) KLT 282) and argued that in any case, the decree for specific performance of the agreement is unsustainable. 6. Learned counsel appearing for respondent pointed out that an agreement for sale is not compulsorily attestible by witnesses and therefore non examination of the attesting witnesses as provided under Section 68 of the Indian Evidence Act is not fatal. Reliance was placed on the decision of the High Court of Madras in Karuppiah Mooppanar V. Muthukaruppan Servai (AIR 1975 Madras 221). Relying on the Division Bench RSA 1119/2004 7 decision of this court in Mulayathil Mohammed V. Kuttadan Velayudhan (ILR 2001(1) Kerala 413), it was argued that when the signature in the disputed document is admitted, the evidence necessary is only slight and appellant had admitted his signature in Ext.A1 and only raised a contention that the signed blank stamp paper was given to the respondent when he borrowed Rs.10,000/- on the 13th day of the death of his mother. The learned counsel pointed out that as DW1, appellant admitted that his mother died 7 years earlier to the date of the examination in court and in that case, her death could only be in 1991 and the stamp paper used for preparing Ext.A1 was purchased only in 1994 and therefore the plea raised by appellant could only be rejected and if that be so, in the absence of any other evidence, to prove the allegations of the appellant, the evidence of Pws 1 and 2 is to be accepted as has been rightly done by the first appellate court and execution of Ext.A1 was proved. Learned counsel would also argue that even if it is to be found that non examination of the attesting witnesses are fatal, an opportunity may be granted to examine those witnesses and for that purpose, suit be remanded. The learned counsel relied on the RSA 1119/2004 8 following decisions Gobind Ram V.Gian Chand (2007(7) SCC 548), SVR Mudaliar V.Rajabu.F.Buhari ( 1995(4)SCC 15), Simon V.Thitheerumma (1990(1) KLT SN 51), Yohannan V. Harikrishnan Nair (1991(2) KLT SN 60) and argued that on the evidence, first appellate court was fully justified in accepting Ext.A1 and granting a decree for specific performance of Ext.A1 agreement for sale. 7. Learned Sub Judge, on appreciation of the evidence found that respondent did not prove execution of Ext.A1 and there was no agreement for sale. First appellate court proceeded, evidently on the wrong basis, that there was an admission of execution of Ext.A1. Learned District Judge wrongly held that “the defendant has admitted execution of Ext.A1”. As rightly pointed out by the learned counsel appearing for appellant, no where in the written statement appellant admitted execution of Ext.A1 or even existence of an agreement for sale. On the other hand, it was the specific plea that he did not execute the agreement and did not agree to sell the plaint schedule property. When execution of the agreement is denied and appellant contended that there was no agreement for sale, it cannot be RSA 1119/2004 9 disputed that the burden is on the respondent to prove that there was an agreement for sale and Ext.A1 was executed by appellant. 8. Ext.A1 shows that it was attested by two witnesses and PW2 was the scribe. It was signed only by appellant and not by the respondent, who agreed to purchase the property. Ext.A1 is thus only a unilateral agreement executed by the appellant, if Ext.A1 agreement was executed. If it is genuine and respondent violates the conditions or fails to perform his part of the agreement, appellant will be without any remedy. Normally, when an agreement for sale is executed it is to be executed by both the purchaser and seller. Thus Ext.A1 is not an ordinary agreement for sale. With this aspect in mind, the case is to be appreciated. 9. Though respondent as PW1 asserted that Ext.A1 agreement was executed by the appellant, even in chief examination, he has no case that appellant signed in Ext.A1 in his presence. PW2, the scribe deposed that appellant did not sign in Ext.A1 in his presence. The evidence of PW2, even if accepted as a whole, would only show that the two witnesses shown in RSA 1119/2004 10 Ext.A1 came to his office gave him the stamp paper and gave instructions to prepare the agreement. According to PW2, both the witnesses are property brokers and he prepared Ext.A1 on the instruction given by them and handed over Ext.A1 after writing it to them. He has no case that appellant was present either at the time of giving instructions or preparing the document or when it was taken back by the witnesses after it was written. In such circumstances, the evidence of PW2, even if accepted as such, will not prove the execution. 10. The argument of the learned counsel appearing for respondent is that when signature in Ext.A1 is admitted and the evidence of DW1 establishes that he handed over the signed blank stamp paper at the time of borrowal, is proved to be false and therefore the evidence of PW1 is to be accepted and the evidence of PW2 establishes that he did not prepare Ext.A1 in a previously signed blank stamp paper but was prepared as an agreement for sale and appellant signed later and therefore Ext.A1 agreement is to be accepted. 11. The Division Bench of this court in Mulayathil Mohammed's case (supra) considered the effect of admission of RSA 1119/2004 11 the signature in a document and the degree of proof necessary for proof of execution of the document. The admission of signature in a stamp paper is not admission of execution of the document. For the reason that the defendant has admitted his signature in the disputed document, it cannot be said that he admitted execution of the document. When execution of the document is denied, it is for the person who relies on the document to prove the execution. But, the degree of proof necessary would vary in such a case as held by the Division Bench. The Division Bench did not hold that in such cases, the unreliable or inconsistent evidence of the plaintiff would be sufficient. The relevant portion of the judgment reads:- “Hence, in such circumstances, a general proposition cannot be laid down that the burden should be on the person, who has subscribed his signature to a blank paper. As it was stated in AIR 1931 Patna 219, the fact that the defendant's thumb impression appears on the paper is a strong piece of evidence in favour of the plaintiff and in the majority of cases very slight evidence would be necessary to prove that the thumb impression was given on the document after it had been written out RSA 1119/2004 12 and completed. Thus, evidence that has to be adduced by the plaintiff in such case will be less onerous than in cases where there is complete denial of signature and execution. But if the plaintiff's evidence is not sufficient or unreliable that onus cannot be said to be discharged. We may further say that always the burden of proof is on the person, who wants to get relief in the suit. As always stated, onus of proof shifts during the pendency of the litigation depending upon the nature of the evidence given by either side. The plaintiff may give evidence regarding the execution of the document. If the fact of thumb impression or signature is admitted, that will give more reliability to the plaintiff's evidence. If such evidence adduced by the plaintiff is reliable and if the plaintiff is able to discharge his burden sufficiently, then onus will shift on the defendant to show that he had not executed the document. We only say that the plaintiff cannot succeed in the case without giving evidence. Because the defendant had admitted his signature, he had to give some evidence to show that the document has been properly executed. Further things depend upon the evidence adduced and on facts and RSA 1119/2004 13 circumstances of each case. When both sides have adduced evidence, the question of burden of proof vanishes into the air. Hence, we are of the view that the decisions given in 1990(1) KLT 456 and 1990(2) KLJ 115 putting the burden on the defendant have not laid down the correct law”. 12. Therefore for the sole reason that the explanation offered by the appellant as such was found to be not correct, it cannot be said that execution of Ext.A1 is to be accepted as proved. The question is whether based on the evidence of PW1 and PW2, it can be said that appellant executed Ext.A1 agreement as an agreement for sale. 13. From the evidence of DW1, it is absolutely clear that his case that the signature seen in Ext.A1 was given by him in a signed blank paper at the time of borrowing Rs.10,000/- for the ceremony in connection with the death of the mother is not correct. But for that reason, I cannot agree with the submission of the learned counsel appearing for respondent that the agreement for sale incorporated in Ext.A1 is to be accepted. 14. The evidence of PW2 is that it was neither the appellant RSA 1119/2004 14 nor the respondent who had given instructions to prepare Ext.A1 agreement. The evidence of PW2 shows that instructions were given by the two witnesses shown in Ext.A1. If that be the case, the evidence of those witnesses would have established whether those instructions were given at the instance of the appellant or not. No explanation was offered for the non examination of the attesting witnesses to Ext.A1, who even according to PW2 were instrumental in preparing Ext.A1 and who according to PW2, obtained Ext.A1 after it was written. Though learned counsel appearing for the respondent prayed for a remand for examination of the attesting witnesses, in the absence of a case before the first appellate court that he did not get opportunity to examine the witnesses, and when the records of the trial court does not show that opportunity was not denied, the suit cannot be remanded as sought for, for the examination of those witnesses. If that be the case, on the evidence it cannot be held that there was an agreement for sale of the plaint schedule property for the consideration shown in Ext.A1 between the appellant and the respondent. As rightly found by the trial court, evidence would only establish that there was a loan transaction RSA 1119/2004 15 whereunder Rs.10,000/- was borrowed by the appellant from the respondent Ext.A1, at best could have been executed as security for the said amount. On the evidence, it is absolutely clear that it was not executed as an agreement for sale. If that be the case, respondent is not entitled to the decree for specific performance of the agreement for sale, as found by the first appellate court. 15. In the plaint respondent sought alternatively a decree to return the advance amount paid. The trial court granted a decree for realisation of Rs.10,000/- with interest at the rate of 18% per annum and the plaint schedule property was made a charge for the said amount. Appellant did not challenge the said decree. As the evidence establish that respondent paid Rs.10,000/- to the appellant and appellant admitted that he had received the same, respondent is entitled to get back the amount with interest. As the rate of interest viz 18%, granted by the trial court as such was not disputed and appellant did not challenge the interest, directed to be paid by the trial court, I do not find that any interference is warranted with regard to the rate of interest payable till the date of the decree. But in view of Section RSA 1119/2004 16 34 of the Code of Civil Procedure, subsequent to the date of decree, interest could only be at 6% per annum. Appellant also did not challenge the decree of the trial court, providing plaint schedule property as a charge for the amount payable by filing a fresh appeal or at least a cross objection. Hence respondent is entitled to get a charge on the plaint schedule property. 16. Appeal is allowed. The decree granted by Additional District Court, Thalassery in A.S.164 of 1998 is set aside. O.S.176 of 1995 stands decreed as follows. Appellant/defendant is directed to pay Rs.10,000/- with interest at the rate of 18% per annum from 29.11.1994 till 2.8.1996 and thereafter at the rate of 6% per annum, with proportionate cost to the respondent. Plaint schedule property will be a charge for the said amount. M.SASIDHARAN NAMBIAR, JUDGE lgk