IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN MONDAY, THE 20TH JULY 2009 / 29TH ASHADHA 1931 AS.No. 121 of 1997 ------------------------------ OS.96/1994 of SUB COURT, TIRUR .................... APPELLANT/ PLAINTIFF KUNHI MARAKKAR S/O AMASSERI YAHU THROUGH POWER OF ATTORNEY HOLDER AMASSERI YAHU'S SON MUHAMMAD RESIDING AT VATTAMKULAM AMSOM KUTTIPPALA DESOM IN PONNANI TALUK (POWER OF ATTORNEY PRODUCED IN THE COURT BELOW AS PER I.A.277 OF 1995 IN O.S.96 OF 1994 AND PERMISSION WAS GRANTED) BY ADV. SRI.T.R.RAVI RESPONDENTS/DEFENDANTS 1. CHEMBOZHA PARAMESWARAN NAMBEESAN'S CHILDREN NEELAKANTAN NAMBEESAN 2. KESAVAN NAMBISSAN 3. PARAMESWARAN NAMBEESAN 4. KUMARI N. NAMBEESAN W/O 1ST RESPONDENT 5. KERALA GOVT. REP BY DISTRICT COLLECTOR MALAPPURAM 6. DISTRICT EDUCATIONAL OFFICER, TIRUR 7. ASST. EDUCATIONAL OFFICER, EDAPPAL 8. DIRECTOR OF PUBLIC INSTRUCTIONS, TRIVANDRUM ADV. SRI.K.RAMACHANDRAN (R3) SRI.V.CHITAMBARESH (R4) SRI.K.B.PRADEEP SRI.P.RAMACHANDRAN THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 20/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: A.K.BASHEER & P.S.GOPINATHAN, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - A.S.No.121 OF 1997 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 20th day of July, 2009 JUDGMENT Basheer, J: Plaintiff in a suit for specific performance of an agreement for sale has come up in appeal challenging the correctness of the decree and judgment passed by the court below under which relief has been declined. The court below while dismissing the suit held that Ext.A1 agreement was not genuine and therefore appellant/plaintiff was not entitled to get the relief sought for. 2. The case of the plaintiff may be briefly noticed. 3. The plaint schedule property comprising of an upper primary school with all its movables and paraphernalia and the appurtenant land thereto, originally belonged to one Parameswaran Nambeessan, the deceased father of defendants 1 to 3. After the death of Sri.Parameswaran Nambeessan the said property devolved on the defendants. According to the plaintiff, the school was being managed by defendant No.4, the wife of defendant No.1. Plaintiff alleged that on April 22, 1991 defendant Nos.1 to 4 agreed to sell the plaint schedule property including the right of management of the school to him for a total consideration of Rs.2,00,000/- and executed Ext.A1 agreement in A.S.No.121 OF 1997 :: 2 :: his favour. Plaintiff paid Rs.1,12,000/- towards the sale consideration on the day of execution of the agreement. It was agreed between the parties that the balance consideration of Rs.88,000/- would be paid to the vendors within 30 days of transfer of management of the school in favour of the plaintiff. Though the plaintiff was always ready and willing to perform his part of the agreement and had got the necessary papers ready for assignment of the property in his name, the defendants refused to honour their commitment. Initially the plaintiff was told that the document would be executed immediately after disposal of a suit filed by one Achuthan in respect of the plaint schedule property against them. But even after dismissal of the suit, the defendants dodged the issue and refused to assign the property in favour of the plaintiff. It was in the above circumstances that the suit was instituted praying for a decree for specific performance and in the alternative to grant a decree for return of the sum of Rs.1,12,000/- paid as part of the sale consideration. 4. Defendants 1 and 4 remained absent and they were set ex parte. 5. Though defendants 2 and 3 filed separate written statements, both of them raised almost identical contentions. The sum and A.S.No.121 OF 1997 :: 3 :: substance of the contention was that Ext.A1 agreement was not a genuine document and that it was fabricated by the plaintiff in collusion with defendant Nos.1 and 4. In his written statement, defendant No.2 contended that after the death of their father the property and the school were being looked after and managed by defendant Nos.1 and 4. Defendant No.2 was employed in military service and was away from the native place. Parameswaran Nambeessan(father of defendant Nos.1 to 3) had passed away on December 17, 1984. At that time, defendant No.2 had come to his native village. Before returning to his place of employment, he had executed a power of attorney authorising defendant No.3 to sell 54 cents of land which belonged to his late father (item No.4 in Ext.A3 assignment deed) in order to discharge certain debts in the family. Accordingly item No.4 in Ext.A3 was sold to the plaintiff under a registered document dated, January 14, 1985. There was no intention or decision to sell the school property and he had never given his consent to defendant No.1 and 3 for such a sale. It was also contended by defendant No.2 that no amount was received from the plaintiff since Ext.A1 agreement for sale was never executed. In short, it was contended by defendant No.2 that the plaintiff was not entitled to get a decree for specific performance, not only for the reason A.S.No.121 OF 1997 :: 4 :: that Ext.A1 agreement for sale was never executed but also since transfer of ownership and management of a school was prohibited under Section 6 of the Kerala Education Act. 6. In his written statement, defendant No.3 contended that he had never agreed to sell the school property and building to the plaintiff as alleged in the plaint. The case of this defendant was that his eldest brother, defendant No.1, was looking after the properties left behind by their father. The school was being managed by defendant No.4, the wife of defendant No.1. According to him, defendant No.1 had obtained several signed blank papers/stamp papers from him in connection with the management of the affairs of the school from time to time. The specific case of this defendant was that two of the blank stamp papers in which he had put his signature, not only on his behalf but also on behalf of defendant No.2 as his power of attorney holder, were misused by defendant Nos.1 and 4 in collusion with the plaintiff in order to create a legally invalid and fabricated document. Defendant No.3 had also pointed out that the schedule of the property shown in the plaint was not fully correct. He gave the correct description of the plaint schedule property as incorporated in Ext.A3 original title deed of which stood in the name of his later father. A.S.No.121 OF 1997 :: 5 :: 7. The officers of the Education Department, namely, defendant Nos.5 to 7 also filed their written statement. In their statement, it was stated that defendant No.4 was approved as the manager of the school with effect from June 1, 1978. It was further contended by them that an application for approval of transfer of management would be entertained only if it is made in compliance with the relevant provisions contained in the Kerala Education Act and the Rules. 8. The court below framed the following issues on the basis of the above pleadings: 1. Whether the suit is hit by the provisions of the Education Act? 2. Whether the agreement alleged in the plaint is genuine? 3. Whether the plain schedule description is correct? 4. Reliefs and costs? 9. On the side of the plaintiff, his power of attorney was examined as PW1 and Exts.A1 to A4 were marked. Defendant No.3 was examined as DW1 and Ext.B1 was marked on his side. 10. While dealing with issue No.1 as to whether the suit was hit by the provisions contained in the Kerala Education Act, the court below noticed that previous permission of the department was not obtained as contemplated under Section 6 of the Act and therefore, the suit was barred. As regards issue No.2 namely, whether Ext.A1 agreement was A.S.No.121 OF 1997 :: 6 :: genuine, the court below entered a finding that it was not. Accordingly, the suit was dismissed, as mentioned by us earlier. 11. Sri.Krishnan Unni, learned Senior counsel appearing for the appellant/plaintiff submits that the court below has glossed over the material aspects of the case in a casual manner and declined relief to the appellant/plaintiff on extremely untenable reasons and grounds. It is pointed out by the learned Senior counsel that since defendant No.3 had candidly admitted his signature in Ext.A1 agreement, not only in his individual capacity but also on behalf of defendant No.2 as his power of attorney holder, it was impermissible for the court below to look for other so called “improbable or vitiating circumstances” which, according to the learned Judge, would render the said agreement legally invalid. It is further contended by the learned Senior counsel that defendant Nos.1 and 4 did not choose to contest the suit for the obvious reason that they had impliedly admitted execution of the agreement and had thus conceded a decree in favour of the plaintiff. The further contention of the learned Senior counsel is that the plaintiff had discharged the burden cast on him in proving execution of Ext.A1 agreement. 12. Per contra, it is contended by Sri.Ramachandran, learned A.S.No.121 OF 1997 :: 7 :: counsel for defendant No.3 that the entire circumstances surrounding Ext.A1 agreement were wholly fishy and suspicious. A bare perusal of not only the mode of its execution but the very contents thereof would unambiguously show that the so called agreement for sale is fabricated, bogus and inoperative. We will deal with the above and other contentions raised by learned counsel for defendant No.3 further in the course of our discussion on the primary issue. In our view, if the primary issue as to whether or not Ext.A1 agreement is genuine or valid will decide the fate of this appeal since the other issues may not be of much relevance if this issue is decided. 13. Ext.A1, agreement for sale, is seen written up in two ten rupee stamp papers. Apart from the plaintiff who is signatory No.5, defendant Nos.1 and 4 have also subscribed their signature. Signature of defendant No.3 is also seen in the document not only in his individual capacity but also on behalf of defendant No.2, as his power of attorney holder. Two witnesses are also seen to have signed in this document. It may at once be noticed that these two witnesses were not examined on the side of the plaintiff. The document recites that the subject matter of the agreement belongs to executant Nos.1 to 4 namely, defendant No.1 to 3 and wife of defendant No.1. But according to the learned counsel, A.S.No.121 OF 1997 :: 8 :: going by the last will of deceased Parameswaran Nambeessan executed by him on May 28, 1980, the property exclusively belonged to defendant Nos.1 to 3 alone. This aspect has not been disputed or controverted before us. 14. It is also pointed out by the learned counsel that the schedule of the property was not incorporated in Ext.A1 agreement. Normally the property to be sold would be described in a schedule with specific reference to its boundaries, extent, etc. More significantly, no date is seen mentioned in the agreement apart from the date of 22-4-1991 shown at the bottom of the second page of the document. There is also reference to a previous assignment which was admittedly made by defendant Nos.1 to 3 in favour of the plaintiff in January 1985. But it has to be noticed that the said assignment deed was executed only by defendant Nos.1 to 3 and defendant No.4 had not, for obvious reasons, joined the said document since she had absolutely no right in any of the property left behind by deceased Parameswaran Nambeessan, father of defendant Nos.1 to 3. 15. Having carefully perused the recitals in the document relating to the description of the title of the parties to the property, we find considerable force in the contention raised by learned counsel for A.S.No.121 OF 1997 :: 9 :: defendant No.3 that the said so called agreement for sale could not have been executed under normal circumstances. It has to be remembered that the alleged agreement for sale was in respect of an educational institution recognised by the Department of Education under the Government of Kerala. It was being managed by an authorised manager approved by the Department. It is an aided institution. The salary of the teaching and non-teaching staff is being admittedly paid by the Government. Under such circumstances, even if we do not keep in view Section 6 of the Act for the time being it cannot be assumed that an agreement for sale of such a property would be done in such a casual, shabby and slipshod manner. We do not propose to deal with several glaring spelling mistakes and other shabby expressions in the document. Yet another significant aspect is the absence of a date in the agreement. It is true that at the bottom of the second page a date is seen put. But none of the signatories has bothered to put the date under his/her signature. As is the usual practice, no date is seen put at the beginning of the document or at the bottom of the text of the document. 16. According to the learned Senior counsel for the appellant the mere fact that the document was not prepared by a document writer A.S.No.121 OF 1997 :: 10 :: may not be of any relevance or significance while considering the execution of the document. He points out that the document might have been got prepared by the defendant through some inexperienced person not well-versed in document writing. But, we are not impressed with the above argument. 17. In this context it may be noticed that two witnesses were cited in the agreement, but none of them was examined. It was conceded by Pw1, the power of attorney holder of the plaintiff, that he did not know the reason why the witnesses were not examined. He further admitted that Ext.A1 would not show that he had anything to do with the preparation of the document. His name did not appear anywhere in the document. But according to him, he had participated in the transaction along with the plaintiff. He claimed that he quoted the price of two lakhs, when he met defendant No.3 in this connection. Thereafter his involvement was confirmed to his presence that when the document was executed. According to him, he was not aware of the detail of the transaction, since one Mr.Jaleel, nephew of plaintiff and Pw1, had been meeting the defendants and he was doing everything for the culmination of the sale. 18. It may also be noticed that the plaintiff had specifically A.S.No.121 OF 1997 :: 11 :: averred in the plaint that Jaleel had been meeting the defendants in connection with the transaction. Pw1 in his evidence would not stop there. He asserted that Jaleel had been managing the school after the execution of the agreement for sale. He went on to say further that Jaleel had made certain appointments of teachers as well in the school. But in spite of all these contentions Jaleel was not examined before the court. Pw1 admitted that Jaleel was very much available in town. There is no explanation why Jaleel was not examined, when he was the person who, according to Pw1, had been managing the entire affairs in the presence of the plaintiff from the country. Further, Pw1 admitted that he did not know which item in Ext.A3 was the subject matter of the agreement for sale. 19. We have referred to the above aspects only to highlight the fact that the plaintiff had kept away from the witness box. In a suit of this nature, especially when the plaintiff would have been the best person to speak about the entire transaction, he ought to have adduced more reliable and credible evidence. The two witnesses cited in the agreement ought to have been examined; or at least Mr.Jaleel, whose name was mentioned in the plaint itself as the "middleman" in the transaction should have been brought before the court as a witness. All A.S.No.121 OF 1997 :: 12 :: these aspects will strengthen the case of defendants 2 and 3 that Ext.A1 agreement was fabricated by the plaintiff and defendant No.1 and 4. 20. It may also be noticed that defendant No.1 and 4 did not choose to contest the suit. If, in fact, they supported the case of the plaintiff, they ought to have explained the circumstances under which the agreement had happened to be executed. This also assumes significance in the peculiar facts and circumstances of this case. Of course, it is pointed out by the counsel for the appellant that Ext.A2 original power of attorney executed by defendant No.2 in favour of defendant No.3, remained in the possession of the plaintiff. Similarly, the original of Ext.A3 assignment deed was also handed over to the plaintiff. This, according to the learned Senior counsel, would indicate that defendants 1 to 4 had executed the sale agreement, as otherwise, those original documents would not have come in the custody of the plaintiff. 21. But it may be noticed that the plaintiff had purchased one of the items (Item No.4) mentioned in Ext.A3 from defendants 1 to 3 by virtue of a registered document dated January 14, 1985. This assignment deed was in respect of the adjoining land of the plaint schedule property. The specific case of defendants 2 and 3 is that the A.S.No.121 OF 1997 :: 13 :: original title (Ext.A3) deed and power of attorney were handed over by the defendants to the plaintiff in connection with the above transaction. The above explanations which stands uncontroverted appears to be quite plausible and probable. 22. As rightly pointed out by the learned counsel for defendant No.3 the present suit was instituted by the plaintiff on the last day of the period of limitation. But the plaintiff tried to explain it away saying that a suit filed by one Achuthan against defendants 1 to 3 seeking specific performance of yet another agreement in respect of the very same property had been pending at that time and therefore he had delayed institution of his suit. According to the plaintiff, the defendants delayed due performance of the agreement in his favour on the plea that the above suit instituted by Achuthan would disable them from honouring their commitment. However, as could be seen from Ext.B1, the suit instituted by Achuthan before the Subordinate Judge's Court, Tirur was dismissed on January 13, 1993. But the present suit was instituted by the plaintiff only on May 23, 1994. In this context, it may also be noticed that the plaintiff had not bothered to issue notice under Section 80 of the CPC to the departmental authorities. The explanation was that issuance of such notice would delay the matter. In A.S.No.121 OF 1997 :: 14 :: our view, this explanation cannot be accepted at all. 23. The learned Senior counsel for the appellant has invited our attention to the decision of this Court in Velayudhan v. Velayudhan (2001(1) KLT 392). Laying emphasis on para.16 of the above judgment, it is contended by the learned counsel that, the burden of proving non-execution of Ext.A1 agreement was entirely on defendants 2 and 3, especially since defendant No.3 had admitted that he had put his signature not only on his own behalf but also for defendant No.2 as his power holder. Having carefully perused the judgment cited supra, we are afraid that the appellant cannot draw any support from the same. 24. As has been mentioned by us earlier, while admitting his signature, defendant No.3 had categorically stated that blank stamp papers were obtained from him in connection with the affairs of the school. The specific case was that neither he nor his brother (defendant No.2) was aware of any proposal to sell the school established by their father. They had not at any point of time agreed to sell the property. We have already referred to the various suspicious circumstances which are sufficient to disbelieve the case of the plaintiff. Having carefully perused the pleadings and also the evidence of Pw1, especially Ext.A1 agreement, we have no hesitation to hold that the burden had never A.S.No.121 OF 1997 :: 15 :: shifted from the plaintiff to the defendants in the peculiar facts and circumstances of this case. Non-examination of the plaintiff and Mr.Jaleel, in our view, has cut at the root of the plaintiff's case, leave alone the non-examination of the two witnesses in Ext.A1. 25. In this context, the learned counsel has invited our attention to a decision of the Privy Council reported in Sardar Gurbaksh Singh v. Gurdial Singh and another (1952 MLJ 392) in which it has been laid down that, “it is the bounden duty of a party, personally knowing the whole circumstances of the case, to give evidence on his own behalf and to submit to cross-examination. His non-appearance as a witness would be the strongest possible circumstance going to discredit the truth of his case.” 26. In Vidhyadhar v. Mankikrao (AIR 1999 SC 1441) it has been held thus, 'where a party to the suit does not appear into the witness box and state his own case on oath and does not offer himself to be cross examined by the other side, a presumption would arise that the case set up by him is not correct.' 27. The above case also arose in connection with a transaction involving agreement for sale of a property. Defendant No.1 contended that the plaintiff had fabricated the agreement for sale in collusion with A.S.No.121 OF 1997 :: 16 :: defendant No.2. However, he didn't choose to enter the witness box. The Apex Court observed that the conduct of respondent No.1 was sufficient to reject his case that the transaction of sale between defendant No.2 and the plaintiff was a bogus transaction. 28. Having carefully perused the entire materials available on record, we do not find any reason to interfere with the conclusions made by the court below. There is no merit in the appeal. The appeal fails and it is accordingly dismissed with costs. A.K.BASHEER, JUDGE P.S.GOPINATHAN, JUDGE jes/kvs A.S.No.121 OF 1997 :: 17 :: A.K.BASHEER & P.S.GOPINATHAN, JJ. - - - - - - - - -- - - - - - -- - - - - - -- - - - - -- - - - - - AS.No.121 of 1997. - - - - - - - - -- - - - - - -- - - - - - -- - - - - -- - - - - - JUDGMENT 20th July, 2009.