IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS TUESDAY, THE 6TH SEPTEMBER 2011 / 15TH BHADRA 1933 AS.No. 681 of 2000() -------------------- OS.25/1998 of PRINCIPAL SUB COURT,KOCHI .................... APPELLANT(S): -------------------- M.A.JACOB, S/O.ANTONY, MUKKATH HOUSE, ADIKARI VALAPU, FORT KOCHI, KOCHI - 1. BY ADV. SRI.K.N.SIVASANKARAN SRI.V.V.ASOKAN SRI.K.I.MAYANKUTTY MATHER SRI.SUNIL SHANKER RESPONDENT(S): --------------------- 1. P.K.REVATHI, W/O.LATE K.K.VISWANATHAN, KARTHIKA, PUTHUPALLIPURAM, EDAPPALLY, KOCHI 24. 2. DEEPA SUDHIR, D/O.LATE K.K.VISWANATHAN, KARTHIKA, PUTHUPALLIPURAM, EDAPPALLY, KOCHI 24. 3. K.V.DEEPU, S/O.LATE K.K.VISWANATHAN, KARTHIKA, PUTHUPALLIPURAM, EDAPPALLY, KOCHI 24. 4. K.V.RAJESH, S/O.LATE K.K.VISWANATHAN, KARTHIKA, PUTHUPALLIPURAM, EDAPPALLY, KOCHI 24. 5. K.V.RAJEEV, S/O.LATE K.K.VISWANATHAN, KARTHIKA, PUTHUPALLIPURAM, EDAPPALLY, KOCHI 24. 6. K.V.SANDEEP, S/O.LATE K.K.VISWANATHAN, KARTHIKA, PUTHUPALLIPURAM, EDAPPALLY, KOCHI 24. ADV. SRI.M.C.SEN, SENIOR ADVOCATE FOR R1TO6 SRI.M.P.SREEKRISHNAN FOR R1TO6 SMT.SHAHNA KARTHIKEYAN FOR R1TO6 SMT.SAVITHA GANAPATHIYATAN FOR R1TO6 THIS APPEAL SUIT HAVING BEEN FINALLY HEARD ON 20.08.2011 THE COURT ON 6.9.2011 DELIVERED THE FOLLOWING: K.M.JOSEPH & M.L.JOSEPH FRANCIS, JJ. ----------------------------------------------- A.S. No.681 of 2000 ----------------------------------------------- Dated 6th September, 2011. J U D G M E N T Joseph Francis, J. This appeal is filed by the plaintiff in O.S.25/98 on the file of the Principal Sub Court, Kochi. Respondents 1 to 6 herein are the defendants 1 to 6 in that suit, which was filed by the plaintiff for specific performance of an agreement for sale dated 4.2.1993 or in the alternative for the return of advance amount with interest. 2. The case of the plaintiff is briefly as follows : The first defendant is the wife and defendants 2 to 6 are the children of late K.K.Viswanathan. The plaint schedule property was allotted to the share of late K.K.Viswanathan, as per partition deed no.2088/70 of S.R.O., Kochi. In September, 1992, late Viswanathan offered to sell the plaint schedule property to the plaintiff and collected a token advance of Rs.6,000/- and executed Ext.A1 receipt. Subsequently, on 4.2.1993, Ext.A2 agreement for sale was executed between plaintiff and late Viswanathan and an amount of Rs.24,000/- was paid as advance. The total sale consideration shown in A.S.681/2000 2 that agreement was Rs.2,90,000/-. As a suit, O.S.5/92 was pending between late Viswanathan and one of his brothers in respect of plaint schedule property for fixation of its southern boundary it was provided in the agreement that the sale deed could be executed only after the disposal of O.S.No.5/92 and fixation of the southern boundary. A few months later Viswanathan died and after his death, the plaintiff approached the defendants for getting the sale deed executed on several occasions. But the defendants represented that the suit is not disposed of. Later, on 7.3.1996, a notice was sent to the defendants enclosing a copy of the agreement of sale and demanded execution of sale deed. A reply was sent by the 1st defendant on her behalf and on behalf of her sons on 3.4.1996. It was alleged in the reply notice that the signature of Viswanathan found in Ext.A2 is a forged one. In spite of intervention of mediators the defendants were not amenable for executing the sale deed in favour of the plaintiff. Hence, the suit. 3. The defendants filed a joint written statement A.S.681/2000 3 contending as under : Viswanathan did not execute any receipt on 28.9.1992. Viswanathan received a sum of Rs.6,000/- as a loan which has been repaid by adjusting in the rent. On receiving Rs.6,000/- late Viswanathan signed a blank letter- head of plaintiff, which was later converted by plaintiff into Ext.A1. The alleged signature in Ext.A2 agreement is a forged one and the defendants have no obligation to execute the sale deed and they are not intending to execute the sale deed in the name of the plaintiff. 4. In the Sub Court, on the side of the plaintiff, PW1 and PW2 were examined and Exts.A1 to A5 were marked. On the side of the defendants, 6th defendant was examined as DW1 and Exts.B1 to B3 were marked. The learned Sub Judge, on appreciating the evidence found that the signature found in Ext.A2 agreement is not the genuine signature of late Viswanathan and the suit was dismissed with costs. Against that judgment and decree dismissing the suit, the plaintiff filed this appeal. 5. Heard learned counsel for the appellant and the A.S.681/2000 4 learned counsel for the respondents. 6. At the time of hearing learned counsel for the appellant raised the following contentions : The court below ought to have found that the respondents/defendants herein have no personal knowledge of the dealings of Viswanathan with the appellant/plaintiff and the evidence of DW1, in spite of his assertion that he got information from his father are also without any consequences. The observation of the court below regarding payment of advance on the date of Ext.A2 is erroneous. Even though cheque has been issued for Rs.6,000/- long back and agreement has incorporated payment of Rs.30,000/- there is nothing wrong or improbable in including the cheque amount when the agreement was executed and treating it as a lump sum payment. The court below ought to have found that Viswanathan will never give any blank paper, that too signed, for receiving a sum of Rs.6,000/- by way of cheque. The observation of the court below regarding the improbability of payment of Rs.30,000/- on execution of Ext.A2 is erroneous in all respects. The court below ought to have A.S.681/2000 5 accepted the statement of the plaintiff that out of Rs.30,000/- after deducting Rs.6,000/- the balance amount alone has been received. There is no justification on the part of the court below in observing that plaintiff should have proved the source of payment on the basis of Ext.A2. As long as the defendant was contending that the signature in Ext.A2 is false, there is no point in producing details of source of payment of amount by the plaintiff. It can never be justified that the observation of the court below that plaintiff could not prove the source of payment referred to in Ext.A2. The court below ought to have found that it is absolutely unnecessary to make any reference to Ext.A1 when Ext.A2 was prepared. The court ought to have found that Ext.A1 is only a receipt showing willingness to sell the property. The court below ought not have relied on the evidence of DW1 since he is incompetent to speak anything about the dealings of his father. Learned counsel for the respondents supported the judgment of the court below. 7. In the judgment under challenge, learned Sub Judge has pointed out certain material circumstances to come A.S.681/2000 6 to the conclusion that the signatures seen in Ext.A2 are not that of deceased K.K.Viswanathan. While dealing with issue no.1 whether Ext.A2 agreement for sale is genuine and enforceable, it is mentioned that the learned Sub Judge compared the actual signature of K.K.Viswanathan found in Ext.A1 receipt with the disputed signature in Ext.A2 and it was found that the beginning portions of the signature in Exts.A1 and A2 are totally dissimilar. 8. Under Section 73 of the Evidence Act, the court is competent to compare the disputed signature with the admitted signature of a person. But it is not safe for the court to record its findings based solely on its comparison. The court can compare the signatures in order to appreciate properly the other evidence produced in court. 9. There is no dispute that the plaintiff was a tenant of shop rooms bearing door Nos.1/1023 and 1/1024 in the plaint schedule property having an extent of 7 cents in Fort Kochi village and that late K.K.Viswanathan obtained that property as per partition deed No.2088/1970. When the plaintiff was A.S.681/2000 7 examined as PW1, he admitted that he took the plaint schedule shop rooms on a rent of Rs.600/- from Viswanathan in 1989. In cross examination, PW1 admitted that at the time of taking the rooms on rent, he had paid Rs.30,000/- as security to K.K.Viswanathan, who agreed to return back that amount to the plaintiff at the time of eviction, after adjusting any amount due towards arrears of rent. But, in the plaint, nothing is mentioned about payment of Rs.30,000/- as deposit at the time of taking the rooms on rent. There is no dispute that Viswanathan died on 10.4.1993 and the present suit was filed only on 24.2.1998. PW1 deposed that there was a talk between himself and Viswanathan with regard to the sale of the plaint schedule property and the plaintiff gave Rs.6,000/- to Viswanathan as token advance on 28.9.1992, for which Viswanathan gave Ext.A1 receipt in a letter-head of the plaintiff. PW1 deposed that at that time, there was a civil suit between Viswanathan and his brother with regard to the southern boundary of the plaint schedule property as O.S.5/1992 and Viswanathan agreed to execute sale deed after the disposal of that suit and A.S.681/2000 8 on 4.2.1993, Ext.A2 agreement for sale was executed between him and Viswanathan and at that time, PW1 paid Rs.24,000/- to Viswanathan as advance and the total sale consideration shown in Ext.A2 was Rs.2,90,000/-. 10. The contention of the defendants is that Rs.6,000/- was received by late Viswanathan from the plaintiff as loan for the construction of a toilet and he signed in a blank letter-head of the plaintiff and subsequently plaintiff converted that blank letter-head into Ext.A1 receipt. When cross- examined, PW1 admitted that the contents of Ext.A1 receipt were written by one of his staff members. But, the plaintiff has not examined that staff member to prove the execution of Ext.A1 receipt by Viswanathan. 11. In Ext.A2 agreement, it is stated that an amount of Rs.30,000/- was paid to Viswanathan in ready cash on the date of execution of that agreement on 4.2.1993. But, in Ext.A2, nothing is mentioned about payment of Rs.6,000/- as per Ext.A1 receipt. While considering the question of genuineness of Ext.A2 agreement, learned Sub Judge observed A.S.681/2000 9 as follows : “When PW1 was examined in court his version is that only an amount of Rs.24,000/- was paid to Viswanathan on the date of execution of the document by cash. When the small amount of Rs.6,000/- was paid to him by cheque the version of plaintiff that the large amount of Rs.24,000/- was paid in cash cannot be swallowed without a pinch of salt. Moreover, in the agreement it is noted that the entire amount of Rs.30,000/- was paid on 4.2.1993 in cash. If he has paid the cheque of Rs.6,000/- as token advance there is no probability of mentioning in the agreement that the entire amount was paid in cash on that day. Even if it is assumed that he mentioned the total amount of Rs.30,000/- including the amount of Rs.6,000/- paid as token advance then also he would have mentioned that an amount of Rs.6,000/- was paid by cheque bearing such and such number and the amount of Rs.24,000/- paid on that day. So the mentioning that Rs.30,000/- was paid in cash to late Viswanathan in Ext.A2 becomes improbable. In the circumstance that the said payment is disputed the plaintiff could have proved the source of that amount for payment on A.S.681/2000 10 that day. The plaintiff failed to prove the source of the said amount also”. 12. Regarding the execution of Ext.A2 agreement, learned Sub Judge observed as follows : “The plaintiff swore before Court that the agreement was written and brought by Viswanathan. First he deposed that the draft agreement was prepared on the same date on which the agreement was executed. Then he changed his version and stated that the draft was prepared a week before the execution of the agreement. First he stated that he did not know the date on which the stamp paper was purchased. When the stamp paper in which the agreement executed was shown to him he admitted that it was purchased on 4.2.1993, the date on which the agreement was executed. His first version is that the agreement was written at his shop then also he immediately changed that version and he deposed that the agreement was brought to his shop by Viswanathan after writing it. The plaintiff's version is that the agreement was written and brought to his shop by Viswanathan at 10.15 a.m. on 4.2.1993. A.S.681/2000 11 The stamp paper for preparing the agreement is seen purchased from Mattancherry on the date of execution of the agreement itself. Plaintiff was informed from Edapally by Viswanathan, over telephone, that he was arriving with the agreement for signing. Edapally is far away from Mattancherry. If the stamp paper was purchased from Mattancherry which is close to the shop of plaintiff on the very same date of preparing the agreement it would have been written at Mattancherry itself. The stamp paper need not have been taken to Edapally for preparing the agreement which is a far away place from Mattancherry. The alleged time at which Viswanathan arrived with the agreement for signing also assumes importance since according to the plaintiff Viswanathan arrived at his shop at 10.15 a.m. The agreement is typewritten. So it is not possible to purchase stamp paper from Mattancherry and to get the same typewritten at Edapally and bring to the shop of plaintiff on the same day at 10.15 a.m. since Mattancherry and Edapally are far off places.” 13. PW2, who is an attesting witness to Ext.A2 A.S.681/2000 12 agreement for sale is a near relative of the plaintiff and as such, he cannot be relied on as he is an interested witness. One Abdul Rahiman is the second attesting witness to Ext.A2 agreement for sale, but the plaintiff did not care to examine that witness to prove the execution of Ext.A2 agreement for sale, even when that witness was available. 14. The definite contention of the defendants in Ext.A5 reply notice and in the written statement is that Ext.A2 is a forged document. But the plaintiff did not take any steps to send Ext.A2 to the opinion of handwriting expert, even when the admitted signature of late Viswanathan was available in Ext.A1. We also compared the admitted signature of Viswanathan in Ext.A1 with the disputed signature of Viswanathan in Ext.A2. As observed by the learned Sub Judge, there is dissimilarity between the admitted signature in Ext.A1 and the disputed signature in Ext.A2. While appreciating the evidence of PW1 and PW2 in the light of that comparison, we are of the view that the learned Sub Judge is perfectly justified in dismissing the suit on finding that the signature seen in A.S.681/2000 13 Ext.A2 is not the genuine signature of late Viswanathan. Therefore, we find no reason to interfere with the judgment and decree under challenge. Accordingly, this appeal is dismissed and the judgment and decree dismissing O.S.25/98 on the file of Principal Sub Court, Kochi is confirmed. Parties are directed to suffer their respective costs in this appeal and in the suit. Sd/- K.M.JOSEPH, JUDGE. Sd/- M.L.JOSEPH FRANCIS, JUDGE. tgs (True copy) P.S. to Judge.