Case: P.V. Ayyappa Reddiar Vs. Ayyappan Pillai Janardhanan Pillai &amp; Another

the first defendant and that the appellant has produced, Ex. P-2. The claim of the appellant is that Ex. P-2, the Stridhanakuri, was given to him by the first defendant at time when Ex. P-1 was executed and therefore Ex. D-2 is an ante-dated document. It is true that the plaintiff claims to have been given the original Stridhanakuri Ex. P-2 and it is also true that he has produced the same; but it will be seen that there is no reference in Ex. P-1 to the first defendant having handed over the original document of title to the plaintiff. Ex. P-1 has been registered as document No. 4286 of 1081 (M.E.) on the file of the Sub-Registrar, Quilon, whereas the number of the document is given in Ex. P-1 as 4442 of 1081 (M.E.). If really the plaintiff had Ex. P-2 at the time when Ex. P-1 was written, the wrong number given for the document is inexplicable.21. Further the trial Court in holding in favour of the plaintiff has placed considerable reliance on the fact that Ex. P-2 was produced by him and it has proceeded on the basis that the defendants have no answer as to how the plaintiff got the document Ex. P-2.22. Apart from the features, pointed out by us earlier, which will show that the plaintiff could not have got Ex. P-2 at the time of the agreement, there is a further circumstance to show that even the first defendant was not in possession of Ex. P-2 on the date. of Ex. P-1, i.e., on March 29, 1959. We have already referred to the usufructuary mortgage Ex. P-16 executed by the first defendant on January 8, 1957. We have also adverted to the recitals in the said document that Ex. P-2 Stridhanakuri being document No. 4286 of 1081 (M.E.) has been lost and as such the original title deed was not being given to the mortgagee. P.W. 8 has given an explanation as to how it has gone out of the possession of the first defendant and the High Court has accepted his explanation. No doubt it is a mystery as to how the plaintiff got Ex. P-2, but the evidence clearly shows that the first defendant could not have given Ex. P-2 to the plaintiff at the time of Ex. P-1. The conduct of the plaintiff in getting Ex. P-2 is rather very suspicious. The trial Court has merely proceeded on the basis that there is no explanation forthcoming from the defendant as to how the plaintiff got possession of Ex. P-2. This finding was arrived at by the trial Court without reference to the recitals in Ex. P-16, the wrong registration number in Ex. P-1 and the explanation given by P.W. 8 with reference to Ex. P-2. Such a finding was properly considered by the High Court to be erroneous.23. Another circumstance pointed out to us on behalf of the appellant is that Ex. D-2 has been written by a person, who is not the usual document writer of the second defendant. It is pointed out that D.W. 2. is the usual document Writer for the second defendant but Ex. D-2 has been written by D.W. 3, who was an assistant of D.W. 2 This does not advance the case of the appellant in any manner. D.W. 3 admittedly was working as an assistant under D.W. 2, D.W. 3 was also a licensee under the Document Writers Licensing Rules. In fact even the sale deed Ex. D-3 has been written by him. D.W. 2 has given evidence to the effect that he was advising D.W. 3 in the preparation of these documents.24. The last circumstance pointed out to us is that P.W. 8 is an attestor to both Ex. P-1 and Ex. D-2, P.W. 8 is the son-in-law of the first defendant and he must managed to bring into existence Ex. D-2 by ante-dating the same. It is no doubt true that P.W. 8 is an attestor to both Ex. P-1 and Ex. D-2, but he has given evidence on the side of the plaintiff and he has also been cross-examined by the plaintiff when the answer given by him were not to the plaintiffs liking. P.W. 8 has given evidence to the effect that Ex. D-2 was executed on March 26, 1959. On coming to know about this agreement, his nephew P.W. 5, who was working with the plaintiff and the son of the plaintiff contacted him and raised doubts in his mind about the second defendant completing the purchase. He has further stated that in case the second defendant does not complete the purchase, the plaintiff was prepared to buy the same and for that purpose he got the agreement Ex. P-1 executed in his favour. He has further deposed that if the second defendant completes the purchase, the advance of Rs. 1, 001/- received under Ex. P-1 was to be returned to the plaintiff. In view of the fact that P.W. 8 is an attestor to both the documents, it is but natural that his evidence should be approached with great caution. But having gone through his evidence and the answers given by him, we are of the opinion that the High Court was justified in acting upon his evidence regarding the circumstances under which Ex. P-1 came to be executed, specially when the answers given by the witness have been left unchallenged in further cross examination by the plaintiff. It is really on the basis of this evidence by P.W. 8 that the High Court, while accepting the truth of the execution of Ex. P-1 has held that it was intended to have effect only if the second defendant did not complete the transaction of purchase as per Ex. D-2.25. Having considered the entire matter, we hold that none of the circumstances pointed out above, is of any assistance to the appellant to dislodge the finding arrived at by the High Court in favour of the second defendant.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]On a consideration of the various aspects presented before us, we are satisfied that the decision of the High Court does not call for any interference.14. As pointed out by Mr. Subramonia Ayyar, it is no doubt true that there is no specific pleading by any party that Ex.is a contingent contract, but when the High Court was considering the competing claim of two parties claiming under two separate agreements and when the High Court was upholding the truth of the execution of the two agreements, there is no error committed by the High Court in discussing the circumstances under which Ex.came to be executed. It was in considering such a question that the High Court has held that the plaintiff got Ex.executed in his favour with full knowledge of the execution of Ex.2 is of an earlier date and held to be a true transaction, the High Court was justified in holding that Ex.was got executed only on the basis that the plaintiff can rely on the same if the second defendant does not complete the transaction of purchase under the agreement Ex.Therefore, we see no error in the approach made by the High Court in this regard.The first circumstance pointed out by Mr. Subramonia Ayyar is that evidence of P.W. 2 the broker clearly shows that the second defendant was not anxious to purchase the suit properties as his wife had made a recent purchase the suit properties as his wife had made a recent purchase under Ex.He referred to us to the evidence of P.W. 2, the broker that when he approached the second defendant regarding the intention of the first defendant to sell the property, the second defendant did not evince any anxiety to purchase the property. We are not inclined to accept this contention of the learned Counsel. P.W. 2s evidence only show that when the second defendant was consulted regarding the purchase of the suit properties, he replied that it can be considered some days later. This is a perfectly natural answer that could be expected from the second defendant specially as his wife had purchased a portion of the property only a late as March 5, 1959. Even P.W. 2 does not say that the second defendant stated he is not prepared to buy the property. The second defendant has also given evidence as D.W. 4 to the effect that about a week before the date of agreement of Ex.the defendants son came and intimated to him about the desire of the first defendant to sell the suit properties. He went and met the first defendant and the matter wasHigh Court has quite rightly held that the stamp paper for Ex.had been purchased on March 24, 1959 and that the trial Court has disbelieved the stamp register book Ex.on a very flimsystamp paper on which Ex.was written bears No. 2537. Ex.shows that the said stamp paper was sold on March 24, 1959 to the first defendant. Further D.W. 1 the person who sold the stamp paper had given evidence and the appellant did not even care tohim with regard to any interpolation in Ex.The High Court hasquite rightly held that the stamp paper for Ex.had been purchased on March 24, 1959 and that the trial Court has disbelieved the stamp register book Ex.on a very flimsyall these documents, the High Court has held that the second defendants case of payment of advance is true. On the other hand, the trial Court has totally ignored Ex.and held that the claim of the second defendant regarding the payment of Rs. 5, 001/as advance is suspicious and this conclusion is based merely on the rough day book Ex.Such a finding recorded by the trial Court was properly set aside by the Highis true that the plaintiff claims to have been given the original Stridhanakuri Ex.and it is also true that he has produced the same; but it will be seen that there is no reference in Ex.to the first defendant having handed over the original document of title to the plaintiff. Ex.has been registered as document No. 4286 of 1081 (M.E.) on the file of theQuilon, whereas the number of the document is given in Ex.as 4442 of 1081 (M.E.). If really the plaintiff had Ex.at the time when Ex.was written, the wrong number given for the document is inexplicable.Apart from the features, pointed out by us earlier, which will show that the plaintiff could not have got Ex.at the time of the agreement, there is a further circumstance to show that even the first defendant was not in possession of Ex.on the date. of Ex.i.e., on March 29, 1959. We have already referred to the usufructuary mortgage Ex.executed by the first defendant on January 8, 1957. We have also adverted to the recitals in the said document that Ex.Stridhanakuri being document No. 4286 of 1081 (M.E.) has been lost and as such the original title deed was not being given to the mortgagee. P.W. 8 has given an explanation as to how it has gone out of the possession of the first defendant and the High Court has accepted his explanation. No doubt it is a mystery as to how the plaintiff got Ex.but the evidence clearly shows that the first defendant could not have given Ex.to the plaintiff at the time of Ex.The conduct of the plaintiff in getting Ex.is rather very suspicious. The trial Court has merely proceeded on the basis that there is no explanation forthcoming from the defendant as to how the plaintiff got possession of Ex.This finding was arrived at by the trial Court without reference to the recitals in Ex.the wrong registration number in Ex.and the explanation given by P.W. 8 with reference to Ex.Such a finding was properly considered by the High Court to beview of the fact that P.W. 8 is an attestor to both the documents, it is but natural that his evidence should be approached with great caution. But having gone through his evidence and the answers given by him, we are of the opinion that the High Court was justified in acting upon his evidence regarding the circumstances under which Ex.came to be executed, specially when the answers given by the witness have been left unchallenged in further cross examination by the plaintiff. It is really on the basis of this evidence by P.W. 8 that the High Court, while accepting the truth of the execution of Ex.Having considered the entire matter, we hold that none of the circumstances pointed out above, is of any assistance to the appellant to dislodge the finding arrived at by the High Court in favour of the second defendant.