IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE FRIDAY, THE 24TH APRIL 2009 / 4TH VAISAKHA 1931 AS.No. 35 of 1997(E) -------------------- OS.121/1992 of SUB COURT,KOTTARAKKARA .................... APPELLANT(S): PLAINTIFF -------------- RAMAN NAIR KOCHUNARAYANAN NAIR MOOZHIYIL VEEDU KALAVAYAL MURI VELINALLOOR VILLAGE KOTTARAKKARA TALUK KOLLAM DISTRICT BY ADV. SRI.N.HARIDAS SRI.C.S.MANU RESPONDENT(S): DEFENDANTS --------------- 1. MADHAVAKURUP RAVINDRAN NAIR MADHAVAVILASATHU VEEDU KALAVAYAL MURI VELINALLOOR VILLAGE KOTTARAKKARA TALUK KOLLAM DISTRICT (DIED) 2. GOURI AMMA VIJAYAMMA - DO - -DO- 3. VIJAYAMMA MINI (MINOR ) -DO- -DO- 4. KALYANI AMMA LEKSHMI AMMA KAITHAKKAL VEEDU KALAVAYAL MURI VELINALLOOR VILLAGE, KOTTARAKKARA TALUK KOLLAM DISTRICT ( MINOR 3RD RESPONDENT IS REPRESENTED BY HER MOTHER 2ND RESPONDENT ) A.S.No.35/97 ADDITIONAL RESPONDENT 5. MANOJ, S/O LATE MADHAVAKURUP RAVINDRAN NAIR MADHAVAVILASATHU VEEDU KALAVAYAL MURI VELINALLOOR VILLAGE KOTTARAKKARA TALUK KOLLAM DISTRICT Additional R5 impleaded as the LR's of deceased 1st respondent vide order dated 21-1-2008 in I.A.No.1547/2004. ADV. SRI.S.V.BALAKRISHNA IYER, SENIOR ADVOCATE FOR ADDL.R5 SRI.P.B.KRISHNAN THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 24/04/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS.C.KURIAKOSE, J. - - - - - - - - - - - - - - - - - - - - - A.S.No. 35 OF 1997 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 24th day of April, 2009 JUDGMENT The plaintiff in a suit for specific performance of a contract for sale of immovable property where the trial court declined the relief of specific performance is the appellant, and the defendants are the respondents in this appeal. The first respondent /first defendant died pending appeal and thereupon the additional 5th respondent is impleaded as his legal representative. The parties are referred to as they were before the trial court. 2. The case of the plaintiff as averred in the plaint was that the plaint schedule property belonged to the first defendant with right of enjoyment for the fourth defendant, the mother by virtue of sale deed No. 259/1977. The second defendant is the wife of the first defendant and the third defendant is their minor daughter. The first defendant executed gift deed No. 1364 of 1982 in favour of defendants 2 and 3 in respect of 10 cents of land from out of the plaint schedule property and defenants 1 and 2 executed an agreement in favour of the plaintiff to AS.No.35/97 2 sell the plaint schedule property for a price of Rs. 3,000/- per cent. A sum of Rs. 500/- was paid to the defendants as an advance and the agreement was that they will execute a formal deed of sale before 31/05/1992 representing that they wanted to purchase another plot of land. They requested the plaintiff to pay an additional advance of Rs. 10,000/- which was paid on 29/02/1992. The defendants handed over the title deeds of their property to the plaintiff. The defendants however did not execute the sale deed despite request including one made through a lawyer notice. Hence the suit for specific performance and ancillary reliefs. 3. Defendants 1 to 3 filed written statement contending that the suit is not maintainable. Defendants have not executed any agreement for sale. The plaint schedule property belonged to the first defendant. The property was conveyed in favour of his sister Omana in the year 1974 as a result of fraud and undue influence exercised by Ramakrishna Kurup, the brother of the first defendant. At the instance of mediators, the property was reconveyed to the first defendant reserving right in favour of the fourth defendant for the reason that the AS.No.35/97 3 first defendant was unable to take care of the property. Defendants 1 and 2 are in possession and enjoyment of the property. They never had any idea to sell the property nor have received any amount from the plaintiff. The third defendant is deaf, dumb and handicapped. Ramakrishna Kurup, brother of D1 and Balakrishna Kurup, brother of D2 approached the defendants on 05/02/1992 and obtained their signatures and finger prints on stamp papers and blank papers for the purpose of obtaining pension by the third defendant. They represented that the title deeds of the property had to be shown to the Tahsildar so as to facilitate orders for payment of pension. This is how the documents were handed over to them. The signatures appearing on the reverse side of the stamp papers on which the agreement is seen written were not put by the defendants. The agreement relied on by the plaintiff is not genuine and the plaintiff is not entitled for any of the reliefs. 4. The learned Subordinate Judge formulated the following issues for trial : 1) Is the suit maintainable ? AS.No.35/97 4 2) Whether the agreement for sale dated 6-2-92 was executed by the defendants 1 and 2 after accepting the advance amount . 3) Whether the defendants 1 and 2 have received Rs. 10,000/- from the plaintiff towards the balance of sale consideration on 29-02-92 after making necessary endorsement on the agreement? 4) Whether the agreement for sale dated 6-2-92 is genuine and properly executed ? 5) Whether defendants 1 & 2 have handed over the title deeds to the plaintiff in part performance of the agreement? Are they entitled to get back the title deeds ? 6) Whether the plaintiff is entitled to get the sale deed executed by Court ? 7) Reliefs and costs ? 5. The evidence at trial consisted of Ext.A1 agreement dated 6-2-92, Ext.A2 sale deed in favour of the first defendant and others, AS.No.35/97 5 Ext.A3 gift deed executed by the first defendant in favour of the second defendant and the third defendant, Ext.A4 agreement executed by the fourth defendant in favour of the first defendant, Ext.A5 copy of the lawyer notice issued at the instance of plaintiff to D1 and D2 and the oral testimonies of four witnesses including plaintiff as PW1, on the side of the plaintiff. On the side of the defendants, the same consisted of Ext. B1 Registered notice sent to D1 and D2 by Adv. K.J.Thomas, Ext.B2 copy of the reply notice sent to the plaintiff's Advocate Sri.K.J.Thomas by Advocates A.R.Vijasundaram and K.Gopalakrishnan. The oral evidence on the side of the defendants consisted of the oral testimony of the second defendant as DW1. 6. Issue No.1 was answered by the learned Subordinate Judge in favour of the plaintiff holding that the suit was of a civil nature and no specific ground had been raised by the defendant to show how and why the suit is not maintainable. Issue No.2 was answered by the Subordinate Judge in favour of the plaintiff finding that defendants 1 and 2 have executed Ext.A1 on 6/2/92 and that they have received a sum of Rs. 500/- as advance from the plaintiff on that day. However, AS.No.35/97 6 issue No. 3 as to whether D1 and D2 received the further amount of RS. 10,000/- from the plaintiff on 29-02-1992 after making endorsement on the reverse of the agreement was answered by the learned Subordinate Judge against the plaintiff. The learned Subordinate Judge noticed in this context that against the purported signatures of D1 and D2 to the endorsement, the thump impressions of the defendants have not been affixed. It was noticed that the signatures of both D1 and D2 are similar and on making a comparison of the signatures with the signatures appearing in Ext.A1 ( the signatures put in execution of Ext.A1), the learned Subordinate Judge came to the conclusion that the signatures of D1 and D2 appearing on the endorsement is not genuine. The learned Judge also noticed that the endorsement was not stamped and that the endorsement was not even tendered in evidence separately. The scribe in whose hand writing the endorsement was made was not even cited as a witness. The plaintiff obtained the brothers of defendants 1 and 2 as attestors to the agreement. According to the learned Sub Judge, this is indicative of the abnormality of the personalities involved. The learned Judge also AS.No.35/97 7 noticed that both PW1 and PW2 had given evidence to the effect that D2 was treated for mental disease prior to Ext.A1. Taking into account all these circumstances, the court concludes that the non-obtaining of thump impressions of D1 and D2 in the endorsement and absence of stamped receipt for the payment of Rs. 10,000/- allegedly made against the endorsement are circumstances casting doubt regarding the genuineness of the endorsement. According to the court, the evidence given by PWs 1 to 3 regarding the endorsement was not at all convincing and ultimately concluded that the plaintiff's plea of having paid Rs. 10,000/- to the defendant and that endorsement made on the reverse of the agreement is false. Issue Nos. 4 and 5 were considered together by the learned Subordinate Judge. Under these issues, the court below held that the probabilities are that the defendants handed over the title deeds to the plaintiff in pursuance to the execution of the agreement for sale. The learned Sub Judge would highlight the admission of the plaintiff that he had not even seen the reply notice issued to the lawyer notice on behalf of the defendants and observe that the said admission indicates that the plaintiffs was not AS.No.35/97 8 actually involved in the dealings and the plaintiff was instrumental in the hands of somebody else. The court found on the basis of the evidence given by PWs 1 to 3 that D1 is not a person of sound mind able to manage himself and that the second defendant is mentally infirm. It was also found that the third defendant is physically handicapped, mentally infirm, deaf and disabled. According to the court below, there was every reason to hold that PWs 1 and 2 have played a very active role in obtaining the signatures on the agreement which was prepared at their instance by the scribe PW4. Accordingly it was held that the terms of Ext. A1 do not reflect the free will of the executants therein that the defendants have not signed the agreement knowing its contents and that the agreement is not enforceable. The learned Subordinate Judge would extract Section 20 of the Specific Relef Act and would find further that the circumstances obtaining in the case as emerging from the evidence available will justify exercise of the discretion of the court under Section 20(2)(a) of the Specific Relief Act against the plaintiff. Accordingly the relief of specific performance was declined and ultimately a decree for return of the AS.No.35/97 9 advance amount of Rs. 500/- with interest was passed in favour of the plaintiff. 7. Very extensive submissions were addressed before me by Sri.N.Haridas, learned counsel for the appellant and by Sri.S.V.Balakrishna Iyer, learned senior counsel for the respondents. According to the learned counsel, the court below having found that Ext.A1 agreement was executed by D1 and D2 in favour of the plaintiff after receiving the advance amount of Rs. 500/- on 6-2-92 should have completely disbelieved the case pleaded by the defendants. The defence of DWs 1 and 2 was one of total denial of execution of Ext.A1. Their defence was that PWs 2 and 3 have approached them and obtained their signatures on certain stamp papers mis-representing that the papers were required for the purpose of facilitating payment of pension to the third defendant and that the title deeds Exts.A2 and A3 were also taken from D1 and D2 in that context. The court has repelled this defence and found that Ext.A1 was executed by D1 and D2 duly and that Exts.A2 and A3 were entrusted by them with the plaintiff in connection with Ext.A1. Under these circumstances there was no AS.No.35/97 10 justification for the court below in not completely repelling the defence case. According to Sri.Haridas, there was unambiguous admission by PW1 that the plaintiff and PWs 1 to 3 have no enimity towards defendants 1 and 2 or other members of their family. In the light of such admission, there was not justification for disbelieving PWs 2 and 3. Sri.Haridas would assail the finding of the learned Subordinate Judge regarding the endorsement on the reverse side of Ext.A1 and on the issue whether the plaintiff had paid Rs. 10,000/- to the defendants against the endorsement. According to the learned counsel, the court below ought not have taken the role of a hand writing expert with regard to the endorsement. Learned counsel pointed out that even the admitted signatures of D1 and D2 in Ext.A1 and in the written statement filed by them vary on different aspects. Therefore variations in the signature of D1 and D2 in the endorsement should have been found to be not of much consequence. According to Sri.Haridas, the appreciation of the evidence given by PWs 1 to 4 particularly by PW4 by the learned Sub Judge was erroneous. The court below has committed the mistake of disbelieving PW4 in part. The learned AS.No.35/97 11 counsel submitted that in the teeth of the finding that Ext.A1 was a genuine document, the burden was on the defendants to prove that the endorsement dated 29-2-92 appearing on Ext.A1 is not a genuine one and absolutely nothing was done by the defendants to discharge that burden. 8. Sri.Haridas argued that there was no basis at all for the finding of the court below that D1 and D2 signed Ext.A1 without appreciating and knowing its contents properly. The defendants did not have a case that the value of the property agreed at the rate of Rs. 3000/- per cent in 1992 was inadequate. If the value was adequate then there was no question of defendants suffering any irreparable injuries or inconvenience by the passage of a decree for specific performance. According to Sri.Haridas apart from the agreement to pay price at the rate of Rs. 3000/- per cent, the plaintiff had given permission to the defendants to demolish and remove the building which existed on the plaint schedule property. Thus it should have been found that the consideration agreed under Ext.A1 was more than adequate. The plaintiff was not going to gain any unfair advantage AS.No.35/97 12 over the defendants in the event of the court passing a decree for specific performance. Discretion under Sub Section 2 Clause (a) of Section 20 of the Specific Relief Act has been wrongly exercised by the court below. Learned counsel submitted that it was clear from the observations and findings in the judgment that a very high sympathy has been aroused in the mind of the court in favour of the defendants in view of the incapability of the first defendant, the deafness and physical and mental incapacities of the third defendant and the alleged mental incapability of the second defendant and a corresponding prejudice was also caused in the mind of the court against the plaintiff. Sri.Haridas submitted that even according to D1 and D2 they are having every right to deal with their properties and capacity to appreciate transaction in respect of properties. D1 had assigned property in the year 1974 in favour of his sister Omana. Omana conveyed the property to D1 subject to a restriction that the fourth defendant, the mother of D1 will have absolute right and enjoyment. This itself according to Sri.Haridas is an indication that the conveyance made in favour of Omana is legal and valid. In the written statement AS.No.35/97 13 filed by D1 and D2 it is categorically stated that D2 is the proper person to represent the third defendant. There is another admission in the written statement that D2 has all the capacity to represent the third defendant. D2 was examined as DW1 and absolutely no incapacity could be noticed in her evidence. She had given evidence as a normal prudent individual. Learned counsel Sri.Haridas would during the course of his submissions refer to the pleadings , the documents Exts.A1 to A4 and B1 and B2 and to the testimonies of PWs 1 to 4 and DW1. Sri.Haridas would fortify his submissions on the authority of the judgment of the Supreme Court in The state of Gujarat v. Vinaya Chandra Chhota Lal Pathi ( AIR 1967 Supreme Court 778) and in Ram Khilona and others v. Sardar and others ( AIR 2002 Supreme Court 2548). The judgment in Vinaya Chandra Chhota Lal Pathi's case was relied on by Sri.Haridas in support of his argument that the court below ought not have assumed the roll of an handwriting expert and that the court below was not justified in observing that the witnesses PWs 1 to 4 are not reliable witnesses without assigning specific reasons. The judgment of the Supreme Court in Ram Khilona AS.No.35/97 14 and others v. Sardar and others (Supra) was relied on by Sri.Haridas to argue that even if the finding of the learned Subordinate Judge regarding the endorsement on Ext.A1 is correct, then also the endorsement will not amount to a material alteration of Ext.A1 and the court below will still be justified in decreeing specific performance directing deposit of the entire balance consideration ignoring the sum of Rs. 10,000/- paid against the endorsement. 9. Sri.S.V.Balakrishna Iyer, learned senior counsel for the respondents would resist all the submissions of Sri.Haridas and would support the impugned judgment and decree on various other reasons also. The learned senior counsel submitted that the second defendant, the mother of the third defendant was not the natural guardian of the third defendant. The second defendant had no power to bind the interest of the third defendant, a deaf and dumb minor in immovable property by purporting to execute Ext.A1 agreement on her behalf. Learned senior counsel submitted that the third defendant has admittedly one half share in the eastern 10 cents covered by Ext.A2 gift deed in which the residential house is situated. Learned counsel AS.No.35/97 15 referred to Section 6 of the Hindu Minority and Guardianship Act 1956 and submitted that under that Section the father and after him only the mother is the natural guardian of a minor unmarried girl. In the instant case D1 is the father and so long as he is not incompetent, disqualified, unavailable or dead, D2, the mother cannot act as natural guardian. For this proposition, the learned senior counsel relied on the judgment of the Supreme Court in Geetha Hariharan v. Reserve Bank of India ( AIR 1999 S.C. 1149). The learned senior counsel referred also to Section 8(2), 8(4) and 8(5) of the Hindu Minority and Guardianship Act and argued that before transfer of the immovable property of any minor, the natural guardian has to obtain previous permission of the court. It is the court which is defined under Section 8(6) ( the District Court) which will examine whether the intended transfer is for the necessity and for the evident advantage of the minor and only if the court finds the same to be so , permission be granted. Learned senior counsel submitted that the provisions of the Guardian and Wards Act 1890 have been made applicable to the proceedings before the District Court for permission. Learned senior counsel argued that even before AS.No.35/97 16 an agreement for sale of minor's interest in immovable property is executed, the court's permission has to be obtained and natural guardian cannot enter into an agreement in anticipation of future sanction by court. Agreement could be executed only if it will be possible to execute the sale deed and permission would be given by the court only if it is found that the contemplated sale is a necessity for the minor and is for the minor's evident advantage. Learned senior counsel relied on the judgment of this court in Hariharan v. Parvathy Amma ( 1989 (2) KLJ 266) and also the judgment of the Division Bench in Prasanna v. Sreedharan ( 1995 (2) KLJ 287). Learned counsel referred to Section 11 of the Act and submitted that after the commencement of the Act, no de facto guardian is entitled to dispose of or deal with minor's properties. Reliance was placed by Sri. Balakrishna Iyer, learned senior counsel on the judgment of this court in Thomas v. Gopala Pillai ( 1968 KLT 388) to argue that transfer by mother of a Hindu minor whose father is alive and not rendered incompetent, unable or disqualified is wholly void. Learned counsel submitted that the above view was followed by this court in AS.No.35/97 17 Ayyappan Ezhuthachan v. Anthony ( 1978 KLT 532). For the same proposition, Sri.Balakrishna Iyer, learned senior counsel, relied on Chathu Chettiar v. Kanaran ( 1983 KLT 888) also. Learned counsel submitted that mere attestation of the agreement for sale by the father will not render the document valid since the transaction entered into by the mother is void. For this proposition, Sri.Balakrishna Iyer, learned senior counsel, relied on the judgment in Parameswaran Pillai v. Bhavani Amma ( 1988 (1) KLT 210). Relying on the judgment of the Supreme Court in Panni Lal v. Rajinder Singh ( 1993 (4) SCC 38) and in Madhigowda (dead) by L.Rs v. Ankegowda (dead) by L.Rs ( 2002 (1) SCC 178) ( is equal to AIR 2002 SC 215), it was argued that an alienation of a minor's property by de facto guardian is per se invalid and void ab initio. Referring to Section 62 of the Indian Contract Act which incorporates the principles of innovation, learned senior counsel submitted that on the terms of that Section, if variation or alteration is made to a contract by the parties to the contract, it is the varied contract or the altered contract which alone is to be performed. Learned counsel submitted that Rule of English Law that a material alteration of a AS.No.35/97 18 document by a party to it after its execution without the consent of the other party will render the document void is applicable in India. This principle of law is essential to the integrity and sanctity of contracts and is calculated to prevent fraud and deter men from tampering with written securities and contracts. It will be directly repugnant to the policy of such law to permit the person holding the instrument to attempt a fraud of this kind with impunity which would be the case if after being detected in the attempt, he were not to in a worse position than he was before. Learned counsel relied on various decisions such as Nathu Lala v. Gomit Kaur (AIR 1940 P.C. 160), Kaliana Gownder v. Palani Gownder ( AIR 1970 S.C. 1942), Sivarama Konar v. Thiruvadinatha Pillai( AIR 1957 T.C. 189) and also to the commendaries on Mulla's Law of Contract and Specific Relief and to Halsbury's Law of India Vol. 9 pages 419 to 426 to expatiate as to what amounts to material alteration. According to the senior counsel material alteration is one which varies the rights of the parties ascertained by the deed in its original state or otherwise varies the legal effect of the instrument as originally expressed or reduces to certainty AS.No.35/97 19 some provision which was originally unascertained and as such void or may otherwise prejudice the party bound by the deed as originally executed. According to the learned senior counsel, in the instant case, the endorsement on the reverse of Ext.A1 has been proved to be a unilateral one. Such endorsement in as much as it affects the rights of the parties liable under the original agreement amounts to a material alteration. Therefore the fraudulent insertion of the endorsement renders the agreement void. Learned senior counsel submitted that when a suit is brought by a plaintiff on a document materially altered by him fraudulently, the plaintiff will not be allowed subsequently to seek reliefs as per the document before its alteration by way of amendment of pleadings or otherwise. For this proposition also, learned senior counsel relied on the commandaries on Contract Act. I have very anxiously