IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR TUESDAY, THE 13TH JANUARY 2009 / 23RD POUSHA 1930 AFA.No. 33 OF 1994() AGAINST THE JUDGEMENT IN AS.562/1990 Dated 23/11/1993 OF THIS COURT OS.26/1988 OF I ADDL.SUB COURT, ERNAKULAM APPELLANT/RESPONDENT/DEFENDANT: V.A. THANKAPPAN, S/O. AYYAPPAN, AGED 44, VETTUVELIL HOUSE, VADUVUKODE KARA, THRIKKAKARA NORTH VILLAGE, KANAYANNUR TALUK. (DIED.) ADDL. APPELLANTS: 2. BHANUMATHY, W/O. LATE THAKAPPAN, NOW RESIDING AT "SHREYAS", KALAKKAL ROAD, VAIKOM. 3. MINIMOL, W/O. AJAYAGHOSH, "UTHRAM", BOATJETTY ROAD, VADUTHALA, KOCHI. 4. V.T. MADHU, S/O. LATE THANKAPPAN, DO.DO. 5. BINDU, W/O. VIJAYAKUMAR, PALAPARAMBIL HOUSE, PALLURUTHY. 6. SWAPNA, W/O. VIJAYAKUMAR, CHIRAYIL HOUSE, THIRUMARADY, KOOTHATTUKULAM. (ADDL. APPELLANTS 2 TO 6 ARE IMPLEADED AS THE LEGAL HEIRS OF THE DECEASED APPELLANT AS PER ORDER DATED 18.2.2003 IN CMP 4023/2001) BY ADVS. M/S. P.R. VENKATESH, MEERA SIDHARDHAN & SATHISH NINAN. RESPONDENT/APPELLANT/PLAINTIFF: DR. JAYA, W/O. ALI, FLAT NO. 3/9/50, AGED 38, N.G.O. QUARTERS, KAKKANAD, THRIKKAKARA SOUTH VILLAGE, KANAYANNUR TALUK. ADV. SRI.JAIJI ITTEN THIS APPEAL FROM FIRST APPEAL HAVING BEEN FINALLY HEARD ON 12/01/2009, THE COURT ON 13/01/2009 DELIVERED THE FOLLOWING: A.F.A. 33/1994 ORDER ON CMP NO. 1887/1994 IN A.F.A. 33/1994 // DISMISSED // 13.1.2009 SD/-, P.R. RAMAN, JUDGE. SD/-, C.T. RAVIKUMAR, JUDGE. // TRUE COPY // P.S. TO JUDGE. KNC/- P.R. RAMAN & C.T.RAVI KUMAR, JJ. = = = = = = = = = = = = = A.F.A. NO. 33 OF 1994 = = = = = = = = = = = = = = DATED THIS, THE 13TH DAY OF JANUARY, 2009. J U D G M E N T Raman, J. Appeal by the defendant in O.S. 26/1988 on the file of the I Additional Sub Court, Ernakulam. The suit is one for specific performance of an agreement for sale, Ext.A1. The trial court, on an appreciation of the evidence - both oral and documentary, came to the conclusion that though execution of Ext.A1 is admitted, passing of consideration under Ext.A1 is not proved and hence, dismissed the suit. On appeal, the learned Single Judge, reversing the judgment and decree passed by the court below, decreed the suit for specific performance, against which this appeal is preferred. 2. The facts necessary for the disposal of this appeal may be stated as follows: The plaintiff is an Ayurvedic doctor who had been employed in an Ayurvedic Hospital near the place of residence of the defendant. Actually, it was in the very same house where the defendant was residing that a room was allotted to the plaintiff for her stay. The defendant was not literate person and had studied only up to 4th standard. According to the AFA. 33/1994 :2: plaintiff, an amount of Rs. 93,000/- was paid out of the total sale consideration of Rs. 95,000/- being the price agreed for an extent of 10 cents of land along with a building thereon, belonging to the defendant. Out of this, Rs. 75,000/- was said to have been paid as advance and it was agreed that the defendant will satisfy the extent of the property within a stipulated time for the execution of the sale deed along with the antecedent documents which were agreed to be handed over to the plaintiff. On 2.2.1987 the defendant approached the plaintiff and asked for an amount of Rs. 18,000/- more towards the sale consideration which was also paid by the plaintiff for which a receipt was issued by the defendant. Thus, a total amount of Rs. 93,000/- was paid towards sale consideration and the balance due is only Rs. 2,000/-. But the defendant did not comply with the stipulation with regard to the extent and handing over of the documents and since he failed to do so, the plaintiff filed the suit for specific performance. 3. In the written statement, the defendant denied that he has agreed to sell the plaint schedule property in which he is residing along with his wife and children. He has explained the personal acquaintance with the plaintiff and various transactions he had with her. It is his case that he executed the document in question without knowing its contents because of the close relationship between himself and the plaintiff. The plaintiff is an AFA. 33/1994 :3: Ayurvedic Physician working in the Government Ayurvedic Dispensary situated on the northern side of the plaint schedule property and ever since 1985 the year in which she took charge in the said Dispensary, they became closer and the plaintiff was lending money to him. Various borrowings from the plaintiff on various dates are made mention of in the written statement and it is contended that if the plaintiff had given Rs. 93,000/- she would not have waited for one year for the execution of the sale deed. It is further contended that she being in Government Service ought to have obtained permission from Government for entering into such transaction which obviously shows that the document was not intended to be acted upon. The receipt produced by the plaintiff is alleged to be fabricated. The defendant, however, admitted his liability to pay the admitted amount of Rs. 26,000/- in all. But according to him, 11 sovereigns of gold pledged by him in the Zodiac Finance, Ernakulam was got released and re-pledged in the Federal Bank by the plaintiff in her name and the value of the same has to be deducted from the said amount. According to the defendant, the document was executed because the plaintiff agreed to return the same at the time of return of the amount received by him by way of loan and he never intended to sell the only property belonging to him, where he is residing along with his wife and children. AFA. 33/1994 :4: 4. The trial court framed three issues namely, (i) whether the defendant had agreed to sell the plaint schedule property to the plaintiff, (ii) whether the plaintiff is entitled for specific performance and (iii) reliefs and costs. 5. The evidence in the case consists of both oral and documentary. PW.1 was examined on the side of the plaintiff where as the defendant examined DWs 1 to 3 on his side. Exts. A1 to A5 were marked on the side of the plaintiff and Ext. B1 was marked on the defendant's side. 6. Though the trial court dismissed the suit after finding that the passing of consideration under Ext.A1 is not proved, on appeal the same was reversed. The main reason for reversing the decree passed by the trial court was that Ext.A1 being a registered document, there is a presumption of various statutory act performed as per the provisions of the Registration Act and that though the defendant denied to have received the amount of consideration in the light of the admission made before the Registering Officer of having received the consideration it is the burden of the defendant to rebut the presumption arising therefrom which he has not discharged by adducing satisfactory evidence. According to the learned Single Judge, the defendant did not show as to how he did not understand the contents of the document and he believed the document to be one to AFA. 33/1994 :5: secure the loan of Rs.40,000/-. The learned Single Judge also relied on the circumstances namely, the inaction on the part of the defendant in not taking any steps for getting the balance amount of Rs.30,000/- which is the balance amount agreed to be advanced by way of loan. The failure on the part of the defendant to take any such action was held to be a strong circumstance leading to an inference that the stand taken by the defendant is a falsehood. 7. We have heard the parties and gone through the judgment of the trial court as well as the judgment under appeal as also the documents produced in the case. We have also gone through the testimony of PW1 and DWs 1 to 3. 8. Ext.A1 is a registered agreement for sale, execution of which is beyond dispute. What is disputed is the passing of consideration as per the recitals contained in Ext.A1. It is true that when the document is a registered one, a presumption will arise that the same has been executed in accordance with law and various other statutory formalities have been complied with. As per Section 58, the Registering Officer has to make an endorsement either that the consideration has been paid in his presence or the admission of the seller of having received the consideration. In this case, though an endorsement as such is not seen produced or made in the document Ext.A1, it is admitted by the defendant while examining as DW.1 AFA. 33/1994 :6: that he had in fact admitted before the Registering Authority of having received the consideration mentioned in Ext.A1. So much so, the Registering authority has complied with his obligation before registering the document. But then the question is as to whether the admission so made by the defendant which is now contended to be a wrong admission and his contention that he has not received any consideration is true or not. Therefore, the first point that arises for consideration is whether the consideration as per the recitals contained in Ext.A1 is true? The plaintiff have no case in her plaint as to whether the amount was paid. Even though as per the plaint averments the consideration was paid at the time of execution of document no independent evidence is adduced with regard thereto. No receipts for payment of the amount of Rs. 75,000/- also is produced except the recital contained in Ext.A1 as an evidence of such payment. The plaintiff has also not sufficiently proved by adducing satisfactory evidence the source from where this amount was obtained. Even though while examined as PW.1 the plaintiff has stated in her sworn- in-testimony that she had sold the residential property at Changampuzha Nagar where she was residing, the sale deed or the date on which the sale was made and what was the consideration received therefrom are matters on which there is absolutely no proof. At the same time, the defendant's AFA. 33/1994 :7: contention is that he did not actually receive the amount; but he believed the plaintiff and therefore executed Ext.A1 is also a matter to be proved by the defendant. But the defendant in this case has examined DW.2 who is said to have accompanied him to the Registration Office. DW.3 is one Gopi was examined in this case to show that he had also some transaction with the plaintiff and he had borrowed money from her. Therefore, there is evidence in this case to show that the plaintiff was in the habit of lending money and even the defendant had borrowed money on earlier occasion. Even according to the defendant, an amount of Rs. 26,000/- is outstanding payable to the plaintiff. 9. The plaintiff, when examined as PW.1, has stated that Ext.A2 was got executed by her husband and she has not seen the defendant executing the same. The defendant has specifically denied the signature in Ext.A2. The husband of the plaintiff before whom the document is said to have executed was also not examined and hence the court below held that the execution of Ext.A2 as well as payment of Rs. 18,000/- as per the said document is not established by the plaintiff. It was found that Ext.A2 document cannot be accepted since the plaintiff has failed to prove the same. AFA. 33/1994 :8: 10. Therefore, the fact remains that there were close relationship between the plaintiff and the defendant and there were transactions between them is beyond any doubt. In the normal course the burden would have been on the plaintiff to prove that consideration made mention of in Ext.A1 was actually paid by her. But in this case, when Ext.A1 itself is a registered document and the defendant having admitted the fact of a previous admission made before the Registering Officer of having received the consideration, prima facie the burden on the part of the plaintiff stands discharged and the onus is on the defendant to satisfy that he has not received any such consideration. In that regard, it may have to be said that the defendant's evidence is not sufficient to discharge the burden. At the same time, the facts and circumstances would clearly reveal that in the light of the previous transaction between the parties and in the light of the fact that the defendant is an illiterate person and the only property belonging to him is the residential house where he resides along with his wife and children, which is the subject matter of Ext.A1, we do not think that this is a fit case where the discretion could be exercised to grant a decree for specific performance instead of granting the alternate relief. As held in Aliyas v. Aboobacker (2006 (4) KLT 282) and Prasanna v. Sreedharan (1995 (2) KLT 499) a specific performance of an agreement cannot be granted merely AFA. 33/1994 :9: because it is lawful to do so. The first appellate court, however, did not consider as to whether such a discretion could be exercised in this case, in the manner it is required to be done. In the circumstances, we set aside the decree passed by the first appellate court and decree the suit for an amount of Rs. 93,000/- with 10% interest from the date of suit till realisation. The appeal is disposed of as above. P.R. RAMAN, (JUDGE) C.T.RAVIKUMAR, (JUDGE) knc/- AFA. 33/1994 :10: P.R. RAMAN & C.T. RAVIKUMAR, JJ. = = = = = = = = = = == = A.F.A. NO. 33/1994 =============== J U D G M E N T ============= 13.1.2009.