IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 6TH APRIL 2009 / 16TH CHAITHRA 1931 AS.No. 839 of 1996() -------------------- OS.113/1994 of SUB COURT, KASARAGOD .................... APPELLANT: PLAINTIFF ---------------------------- V.CHANDU NAIR SON OF PARVATHI AMMA RESIDING AT CHUKKINADKA OF PADY VILLAGE, KASARAGOD TALUK P.O. EDNEER. BY ADV. SRI.K.G.GOWRI SHANKAR RAI RESPONDENTS:DEFENDANTS --------------------------------- 1. SUNDARI AMMA 2. SEETHA ALIAS SUSHEELA 3. VENUGOPALA 4. PUSHPALATHA NO.1 IS THE DAUGHTER OF APPAYYA BANTA AND NOS. 2 TO 4 ARE THE CHILDREN OF NO.1 RESIDING AT THALARPU OF CHENNANDILA IN PADY VILLAGE, KASARAGOD TALUK, P.O. EDNEER. ADV. SRI.D.KRISHNA PRASAD FOR R1 TO R3 SRI.D.NARENDRANATH SRI.JOJI VARGHESE SRI.HARISHARMA M. THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 6 /4 /2009 THE COURT ON 06/04/2009 DELIVERED THE FOLLOWING: ORDER ON C.M.P.NO.5059/1996 IN A.S.NO.839/1996 6.4.2009 DISMISSED Sd/- M.SASIDHARAN NAMBIAR JUDGE /true c opy/ P.S to Judge M.SASIDHARAN NAMBIAR,J. =========================== A.S. NO. 839 OF 1996 =========================== Dated this the 6th day of April,2009 JUDGMENT Plaintiff in O.S.113/1994 on the file of Sub Court, Kasaragod is the appellant. Defendants are the respondents. Appellant instituted the suit for specific performance of Ext.A1 agreement for sale dated 7.9.1993. Plaint schedule property admittedly belongs to the respondents. According to appellant, respondents agreed to sell the plaint schedule property for a total consideration, of Rs.40,000/- and after receiving Rs.26,000/- as advance towards the sale consideration Ext.A1 agreement was executed on 7.9.1993 agreeing to execute a sale deed in favour of the appellant on or before 30.4.1994 after receiving the balance consideration of Rs.14,000/-. It was contended that appellant obtained possession of A.S.839/1996 2 the property on the date of the agreement and he is always ready and willing to perform his part of the contract and respondents failed to receive the balance consideration and execute the sale deed and inspite of Ext.A2 notice received by first respondent on behalf of the respondents, they did not execute the sale deed and instead sent Ext.B1 reply disputing the agreement and therefore appellant is entitled to a decree for specific performance of Ext.A1 agreement. Respondents in their written statement denied the agreement for sale as well as receiving of Rs.26,000/- as advance towards the sale consideration. It was contended that first respondent had borrowed Rs.15,000/- from the appellant on 7.9.1993 agreeing to repay the same with interest at 10% per annum on or before 30.4.1994 and while borrowing amount appellant obtained signatures of respondents 1 to 3 on the pretext that what is prepared is a demand promissory note and fraudulently an agreement for A.S.839/1996 3 sale was prepared and it is not a genuine agreement for sale and it is not binding on the respondents and therefore they are not liable to execute the sale deed. It was contended that the appellant is only entitled to claim back Rs.15,000/- with interest from the respondents and not entitled to the decree for specific performance of Ext.A1. 2. After framing necessary issues appellant was examined as PW1. The attesting witness to Ext.A1 was examined as PW2 and the scribe as PW3. Exts.A1 to A3 were marked. On the side of the respondent, first respondent was examined as Dw1 and fourth respondent as DW2 and Ext.B1 was marked. Learned Sub Judge on the evidence found that Ext.A1 is a fabricated document and it does not contain the signature of the fourth respondent and the signature of the fourth respondent seen in Ext.A1 is fabricated and there was no agreement for sale and the transaction was only a loan transaction between the appellant and respondents 1 to 3 and A.S.839/1996 4 what was borrowed was only Rs.15,000/-. Finding that appellant did not obtain possession of the property as stated in Ext.A1 and claimed in the plaint, learned Sub Judge found that appellant is not entitled to any relief in the suit and the suit was dismissed. It is challenged in the appeal. 3. Learned counsel appearing for appellant and respondents were heard. 4. Learned counsel appearing for the appellant argued that eventhough respondents in the written statement admitted that first respondent received Rs.15,000/- and that respondents are liable to pay Rs.15,000/- with interest the suit was dismissed and even if the agreement for sale is not established, the suit should have been decreed for return of the amount. Learned counsel argued that though learne Sub Judge proceeded as if respondents case was that their signature were obtained in blank stamp paper and blank paper, that is not the case pleaded in the written statement A.S.839/1996 5 and what was pleaded was that their signature was obtained in a document purporting to be a demand promissory note but was written as an agreement for sale and when respondents 1 to 3 admitted that they executed Ext.A1 and Ext.A1 shows that it is an agreement for sale after receiving Rs.26,000/- as part of the consideration, even if appellant is not entitled to a decree for specific performance of the agreement, for the reason that the fourth respondent did not execute the agreement, a decree for realisation of Rs.26,000/- with interest at 10% should have been granted. Learned counsel argued that evidence of PW1 that the stamp paper used for preparing Ext.A1 was purchased by the first respondent was not challenged in cross examination even when first respondent was examined as DW1 there was no case that the stamp paper was not purchased by her and the case of DW1 that Ext.A1 was subsequently written in a signed blank paper cannot be accepted in the light of the pleadings. A.S.839/1996 6 It was also pointed out that DW1 did not dispute the signature of fourth respondent in Ext.A1 and was only denying her signature in Ext.A1 which was admitted in the written statement and therefore the court below should have found that Ext.A1 was an agreement for sale executed by the respondents and appellant is entitled to the decree sought for. 5. Learned counsel appearing for the respondents argued that as rightly pointed out by the court below Ext.A1 was not a genuine document and it was not executed by the respondents as an agreement for sale. It was pointed out that there are several circumstances to justify the findings of the learned Sub Judge. It was pointed out that when the evidence establish that signatures seen in Ext.A1 as that of the fourth respondent, is not her signature, it can only be found that Ext.A1 is a fabricated document. It was also pointed out that as per Ext.A1 the property agreed to be sold was handed over to the appellant on the date of A.S.839/1996 7 execution of Ext.A1 on 7.9.1993 but evidence of PW1 shows that possession was allegedly handed over only two days thereafter and therefore it can only be found that possession was not handed over as stated in Ext.A1 and it further justify the conclusion that Ext.A1 is not a genuine document. Learned counsel also argued that if appellant intended to purchase the property and Ext.A1 was executed as an agreement for sale, when it is only a part of the property belonging to the respondents, the boundaries will be shown and the evidence of PW1 establish that before executing Ext.A1 even the boundaries of the property was not fixed and in such circumstances Ext.A1 could not have been executed as an agreement for sale. Learned counsel then argued that according to PW1 a sketch of the property to be transferred to the appellant was prepared before the execution of Ext.A1, but no such sketch was produced and though PW3 the scribe has a case that a draft was prepared A.S.839/1996 8 before Ext.A1 was written, PW1 has no such case and no such draft was produced before the court. Learned counsel also argued that though PW2 is a relative of the respondents, his evidence establish that he is more royal than the king and his evidence cannot be relied on and it is absolutely clear that respondents did not receive Rs.26,000/- or agreed to execute a sale deed after receiving the balance consideration as stated in Ext.A1 and therefore the suit was rightly dismissed. Learned counsel also argued that when the suit is only for specific performance of Ext.A1 agreement for sale and it is found that Ext.A1 is not a genuine agreement and there is no claim for realisation of the amount paid, a decree cannot be granted on the admission of the respondents and even if there is an admission, the admission is only with regard to receipt of Rs.15,000/- and not Rs.26,000/-. 6. As is clear from the judgment of the trial court, it is clear that the learned Sub Judge A.S.839/1996 9 proceeded as if the pleadings of the respondents is that the signatures of respondents 1 to 3 were obtained in a blank stamp paper and white paper. As rightly pointed out by the learned counsel appearing for the appellant, that is not the case pleaded. What was pleaded in the written statement is that on 7.9.1993 when respondents borrowed Rs.15,000/- appellant insisted for a demand promissory note and therefore their signature was affixed in the document and what was intended is only a demand promissory note and not an agreement for sale. There is no case in the written statement that the signatures were affixed either in a blank stamp paper or a blank paper. A reading of the written statement would only imply that respondents 1 to 3 were made to execute a document purporting to be a demand promissory note and in fact written as an agreement for sale and they had no intention to execute an agreement or to sell the property for the consideration shown therein to the A.S.839/1996 10 appellant. There is an occean of difference between the case pleaded and which was taken as the case of the respondent by the trial court. As rightly pointed out by the learned counsel for the appellant, evidence of PW1 that the stamp paper in which Ext.A1 was written was purchased by the first respondent was not challenged in cross examination. Even when first respondent was examined as DW1, she has no case that stamp paper in which Ext.A1 was written was not purchased by her. Ext.A1 shows that the stamp paper was purchased in the name of the first respondent. In the absence of a case that appellant purchased it in her name or that she did not purchase it, evidence of PW1 is to be accepted and it can only be held that stamp paper used for preparing Ext.A1 was purchased by the first respondent. 7. What is stated in the written statement is that on 7.9.1993, first respondent borrowed Rs.15,000/- from the appellant and as insisted by A.S.839/1996 11 the appellant, respondents 1 to 3 signed the document. But the case of the first respondent as DW1, even in chief examination was that Rs.15,000/- was not paid on 7.9.1993. Her case in chief examination was that she had money transaction with the appellant and on 7.9.1993 appellant calculated the previous borrowings and arrived at the amount due as Rs.15,000/- including interest and for that purpose a document was insisted. But the case in the written statement was that Rs.15,000/- was borrowed on 7.9.1993 and a document was executed. Therefore the case sought to be proved by the evidence of PW1 is different from the defence originally pleaded in the written statement. 8. Though the signature of the fourth respondent in Ext.A1 was denied in the written statement, appellant did not send Ext.A1 to an expert for comparing the signature of the fourth respondent with the admitted signature of the fourth respondent. Learned counsel appearing for A.S.839/1996 12 the appellant pointed out that the signature of the fourth respondent could be proved by other means and her mother DW1 admitted the signatures of the fourth respondent in cross examination. True, when Ext.A1 was shown to DW1 and she was cross examined with regard to the signature therein, she had admitted the signature of the other respondents and only disputed her own signature. In fact she has no case that her signature in Ext.A1 is not her signature. But thereafter fourth respondent was examined and she denied her signature seen in Ext.A1. On the available evidence, when DW2 denied the signature in Ext.A1, from the evidence of DW1 alone it cannot be found that the signature of fifth executant seen therein is that of the fourth respondent. Therefore finding of the trial court that the fourth respondent did not execute Ext.A1 is in accordance with the evidence and cannot be found fault with. 9. But in the light of the evidence, it cannot A.S.839/1996 13 be disputed that respondents 1 to 3 executed Ext.A1 though they have a case that it was executed as a demand promissory note. Ext.A1 shows that it is not a demand promissory note but an agreement for sale. Respondents have no case that they do not know to read Kannada in which language Ext.A1 was prepared or that they do not understand Kannada. Therefore in the light of the evidence, it can only be found that respondents 1 to 3 executed Ext.A1 after understanding its contents. Therefore when Ext.A1 shows that it is an agreement for sale and Rs.26,000/- was received as advance and they agreed to execute a sale deed after receiving the balance consideration, on or before 30.4.1994 it, can only be found that Ext.A1 was executed by respondents 1 to 3 after receiving Rs.26,000/- as stated therein. Though learned counsel appearing for respondents argued that as DW1 admitted that she received only Rs.15,000/- it can only be found that Ext.A1 was executed by respondents 1 to 3, after A.S.839/1996 14 receiving Rs.15,000/- and not Rs.26,000/-. If Ext.A1 was executed after it was written which could only be found that the amount received was not Rs.15,000/- but Rs.26,000/-. As respondents have no case that they did not know to read the document and the document does not contain a figure Rs.15,000/- but only Rs.26,000/-,it can only be found that what was received by respondents was Rs.26,000/- as stated in Ext.A1. Therefore eventhough from the evidence it is clear that appellant had no intention to get the sale deed executed as stated in Ext.A1 it could have been executed only for realisation of the amount due with interest. Learned Sub Judge was not justified in not granting a decree for realisation of the advance amount received as stated in Ext.A1. Therefore to that extent the appellant is entitled to get a decree. The appeal is allowed. The judgment of the Sub Court, Kasaragod in O.S.113/1994 is set aside. A.S.839/1996 15 Suit is decreed. Respondents 1 to 3 are directed to pay Rs.26,000/- with interest at 10% from 7.9.1993 till the date of the suit and thereafter at 6% per annum till realisation. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- A.S.NO.839 /1996 --------------------- JUDGMENT 6TH APRIL,2009