IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 25TH SEPTEMBER 2009 / 3RD ASWINA 1931 RSA.NO. 1197 OF 2008() ---------------------------------- AS.23/2006 OF III ADDL.SUB COURT, KOZHIKODE OS.506/2004 OF ADDL.MUNSIFF'S COURT-I KOZHIKODE .................... APPELLANTS/APPELLANTS/DEFENDANTS ---------------------------------------------------- 1. K.P.NOUSHIDA, AGED 34 YEARS, D/O.MUHAMMED, PALLIPURAM HOUSE, KUTTIPPURAM AMSOM DESOM, KOTTAKKAL, TIRUR TALUK, MALAPPURAM DISTRICT. 2. K.P.MOHASINA, 40 YEARS, W/O.MUHAMMED, C.D.A.COLONY LIG-30, ERANHIPURAM, KACHERI AMSOM DESOM, KOZHIKODE DISTRICT. 3. K.P.MUSAFAR (MINOR) S/O.MUHAMMED, REP. BY GUARDIAN MOTHER MOHASINA, W/O.MUHAMMED, CDA COLONY ERANHIPURAM, KACHERI AMSOM DESOM, KOZHIKODE DISTRICT. BY ADV. SRI.C.KHALID SRI.N.GOPINATHA PANICKER SRI.R.O.MUHAMED SHEMEEM SRI.T.P.SAJID SMT.NAMITHA JYOTHISH SRI.K.P.MOHAMED SHAFI RESPONDENT(S): RESPONDENT/PLAINTIFF ----------------------------------------------------------- C.P.ZAKRIYA, AGED 40 YEARS, S/O.ABOOBACKER, BUSINESS, NEDUMGATTOOR AMSOM, DESOM, KOZHIKODE TALUK. ADV. SRI.NIRMAL. S FOR R1 THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 25/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = R.S.A. NO.1197 of 2008 = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 25th day of September, 2009 J U D G M E N T ---------------------- Based on Ext.A1, agreement for sale dated 12.8.2003 respondent filed O.S. No.506 of 2004 in the court of learned additional munsiff-I, Kozhikode seeking a decree against the appellants for specific performance of that agreement. Learned munsiff found that the suit as against appellant No.3/defendant No.3 is not sustainable in so far as he was a minor at the time of the alleged execution of the agreement and that his share was agreed to be sold without obtaining necessary permission from the court. However, respondent was granted a decree for specific performance of the agreement for sale to the extent it concerned appellant Nos.1 and 2. They challenged the judgment and decree in the court of learned Sub Judge, Kozhikode in A.S. No.23 of 2006. Learned Sub Judge confirmed the judgment and decree of learned munsiff and dismissed the appeal. Hence this Second Appeal raising the following substantial questions of law. (i) Having found that the handwriting expert categorically stated that Ext.A1 does not contain genuine signature of at least one of the R.S.A. No. 1197 of 2008 -: 2 :- appellants is it legal on the part of courts below to reject the above report and hold that Ext.A1 agreement is genuine? (ii) Without ascertaining the respective share of each co-owner under law of inheritance according to the Mohammedan Law and without finding whether the appellants were paid in advance any amount, correctly calculated as contemplated by law, can the agreement for sale be treated as genuine to be specifically enforced? (iii) Whether decree and judgment impugned herein can be upheld when the share of the parties to the suit remain un- ascertained? 2. It is not disputed that the suit property originally belonged to Muhammed, predecessor of appellants and others as per document No.2650 of 1980 and on his death it devolved on appellants and others. It is while so, that according to respondent legal representatives executed Ext.A1, agreement for sale in his favour. According to him the sale was agreed for Rs.1,20,000/-. He claimed R.S.A. No. 1197 of 2008 -: 3 :- that parties to the agreement received Rs.20,000/- from him as advance and six months’ time was provided for execution of the sale deed. Other co-owners who were parties to the agreement assigned their share as per assignment deed No.2750 of 2004. Respondent claimed that at the time of execution of that sale deed he was put in possession of the entire suit property. Since appellants were reluctant to perform their part of the contract respondent filed the suit against them as above stated. Appellant No.1 contended that there is no agreement for sale and that the document to the extent it concerned her share is the result of forgery. She filed O.S. No.424 of 2004 against her sister and brother seeking injunction against their transferring plaint schedule property to the respondent. She claimed that the agreement is not specifically enforceable as against her. Appellant Nos.2 and 3 supported appellant No.1. Exhibit A1, agreement was sent to the expert for opinion regarding the signatures. Exhibit X1 is the report. Expert was examined as C.W.1. Though in Ext.X1, expert opined that most probably the disputed signature in Ext.A1 was not put by appellant No.1, so far as the signature of appellant No.2 was concerned report was positive and in favour of respondent. Learned munsiff found from the evidence of Expert that R.S.A. No. 1197 of 2008 -: 4 :- he had not properly examined the disputed signature of appellant No.1 before concluding that most probably that signature was not put by appellant No1. Learned munsiff on evidence found in favour of due execution of Ext.A1 by appellant Nos.1 and 2. It was also found that so far as appellant No.3 is concerned he being a minor at the time of execution of Ext.A1 permission of the court was required to transfer his share and permission having not been obtained, Ext.A1 cannot be enforced against appellant No.3. Accordingly a decree was granted for specific performance of the agreement to the extent it concerned appellant Nos.1 and 2. That was confirmed by the first appellate court. It is contended by learned counsel for appellants that in the light of the opinion given by C.W.1, Expert in Ext.X1 as to the signature of appellant No.1 in Ext.A1 courts below went wrong in holding that appellant No.1 is a signatory to Ext.A1. It is also contended that concurrent finding entered by the courts below is erroneous. Further contention is that so far as agreement concerning share of appellant Nos.1 and 2 is not supported by consideration there could not have been a decree for sale of their share in favour of respondent. 3. So far as appellant No.3 in this appeal is concerned learned munsiff found that Ext.A1, agreement to the extent it concerned R.S.A. No. 1197 of 2008 -: 5 :- appellant No.3 is not specifically enforceable and decree is confined only to the share of appellant Nos.1 and 2. That part of the judgment and decree of the trial court was not challenged by the respondent. First appellate court only confirmed judgment and decree of the trial court to the extent it concerned appellant Nos.1 and 2. Therefore what remained for consideration is only whether any substantial question of law is involved so far as the decree concerned sale of the share of appellant Nos.1 and 2. 4. So far as the decree to the extent it concerned appellant No.2 is concerned, Expert (C.W.1) has given evidence (and Ext.X1 also states) that most probably signature in Ext.A1 appeared to be that of appellant No.2. As regards the disputed signature of appellant No.1 in Ext.A1 is concerned Expert was of the view that most probably that is not the signature of appellant No.1. But it is seen from the evidence of the Expert (C.W.1) discussed by the courts below that he had not duly examined that signature. He stated that out of ten characteristics (to ascertain the authenticity of the disputed signature) he had left 5 characteristics as he had not compared the signature. He admitted that he has not compared the spacing, slanding, holding of pen, etc., which are essential and relevant in R.S.A. No. 1197 of 2008 -: 6 :- deciding the authenticity of the disputed signature. It is therefore that courts below did not act upon the opinion of the Expert as regards the signature attributed to appellant No.1 in Ext.A1. 5. So far as the oral evidence is concerned, P.Ws.1 and 3 to 5 have given evidence that appellant No.1 signed Ext.A1 along with appellant No.2. P.Ws.3 and 4 are parties to Ext.A1 and they have stated that appellant No.1 signed Ext.A1. When examined as D.W.1, appellant No.1 stated that she has no enmity towards P.W.5. It is an admitted fact that P.W3 is a close relative of appellant No1. It is in these circumstances that in preference to the evidence of appellant No.1 as D.W.1 trial court believed the evidence of P.Ws.1 and 3 to 5 as to the signature of appellant No.1 in Ext.A1. That finding rests on proper appreciation of evidence. First appellate court also concurred with finding of fact entered by the trail court. No substantial question of law is involved in that regard. 6. On the question whether appellant Nos.1 and 2 could be compelled to execute sale deeds so far as the property has not been partitioned among themselves and other co-owners is concerned what is being conveyed as per the sale deed to be executed as per the decree is their share in the suit property. On going through the R.S.A. No. 1197 of 2008 -: 7 :- judgment and decree under challenge and hearing learned counsel I am not satisfied that any substantial question of law is involved requiring admission of this appeal. Second Appeal is without any merit and the same is only to be dismissed. Resultantly, this Second Appeal fails. It is dismissed. THOMAS P.JOSEPH, JUDGE. vsv