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

2. The deceased first defendant had obtained from her father under a Stridhanakuri Ex.dated July 14, 1906 a parcel of land bearing survey No.of Quilon village of an extent of 13.625 cents.3. The first defendant had put up shops on a part of the land and was enjoying the property. She had become liable to pay certain decree debts under the decree evidenced by Exs.19 dated March 30, 1954 and August 22, 1955 respectively. To discharge these decree debts the first defendant had usufructuarily mortgaged under Ex.dated January 8, 1957 the properties obtained by her under Ex.At this stage it may be mentioned that in Ex.the first defendant had referred to her having obtained title to the properties under Ex.the Stridhanakuri, which had been registered as document No. 4286 of 1081 (M.E.) on the file of theQuilon. There is a further recital that the original title deed is lost and so only a copy has been given to the mortgagee. We are particularly referring to this aspect as these recitals may have a bearing in considering the claim of the plaintiff that he got the original document EX.on the date of the agreement in his favour. Under Ex.dated March 5, 1959, the first defendant sold from and out of the properties obtained by her under Ex.to the wife of the second defendant an extent of 3.58 cents being the front portion of the property for Rs. 18, 000/By this sale she discharged all the liabilities over the properties and the mortgage Ex.was also discharged. Schedule A to Ex.comprises of the items actually sold to the second defendants wife. Schedule B to Ex.According to the plaintiff the first defendant entered into an agreement Ex.on March 28, 1959 in and by which she agreed to sell the suit properties for a sum of Rs. 25,In this agreement the registered document number of Ex.was given as 4442 of 1081 (M.E.) on the file of theQuilon. The first defendant agreed to complete the sale within 45 days and also to furnish the plaintiff with a certified copy of the encumbrance certificate. The plaintiff also claimed to have paid a sum of Rs. 1, 001/as advance. There is a definite recital in Ex.that there is no encumbrance or liability outstanding on the suit properties. The attestors to this document are P.W. 1 (who is also the scribe) P.W. 2, the broker, and P.W. 8,of the first defendant.5. According to the plaintiff, the first defendant was evading to complete the transaction which necessitated the issue of the notice dated April 29, 1959 calling upon her to receive the balance amount and execute the sale deed. This was followed by a publication in a Vernacular paper dated May 9, 1959 evidenced by Ex.On behalf of the first defendant a reply Ex.dated May 9, 1959 was received wherein the first defendant repudiated the agreement Ex.The first defendant also set up an agreement dated March 26, 1959, Ex.in favour of the second defendant. She also replied that the said agreements had been followed up by the execution of a sale deed in favour of the second defendant Ex.on May 9, 1959. According to the plaintiff Ex.is an antedated documentbrought into effect to defraud the rights of the plaintiff and that the second defendant had taken both the agreement Ex.and the sale deed Ex.with full knowledge of the prior agreement in favour of the plaintiff and hence the second defendant was not a bona fide purchaser.6. On these allegations the plaintiff instituted the suit in question on May 21, 1959 for specific performance of his agreement Ex.He also prayed for a declaration that the sale Ex.is null and void.7. The first defendant appears to have died within a fortnight or so of the institution of the suit and her daughter, defendant No. 3, was brought on record as her legal representative.8. The second defendant contested the claim of the plaintiff and pleaded that the agreement in his favour Ex.is a genuine one and that he is a bona fide purchaser without notice of any agreement in favour of the plaintiff. He further pleaded that the plaintiff in order to defeat his rights had managed to bring into existence the agreement Ex.The third defendant also contested the claim of the plaintiff.

Reasoning:
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.