HON'BLE SRI JUSTICE M.S.K.JAISWAL A.S.NO.870 of 1993 26-09-2014 Kalvakolanu Tarakamma And others.. Appellants Pulichintala Narsimha Reddy.. Respondent Counsel for the Appellants :Sri T.S.Anand, Sri VLNGK Murthy Sri T.Srinivasa Murthy Counsel for the Respondents: Sri J.
Prabhakar : : ?.Cases referred:
1. 2011 (3) ALT1372. AIR1981S.C., 2085 HON'BLE SRI JUSTICE M.S.K.JAISWAL A.S.NO.870 of 1993 This appeal is filed by the defendant(s) against the Judgment and decree, dated 26-02-1993 in O.S.No.65 of 1988 on the file of the Subordinate Judge, Miryalaguda.
2. The averments of the case in brief are as under:- The suit was filed by the plaintiff for specific performance of the agreement of sale dated 03-10-1985, alleged to be executed by the defendant in favour of the plaintiff. The plaintiff avers that he and the husband of the defendant, by name Ramanadham are close friends. In July, 1985, the said Ramanadham proposed to sell about 1150 Sq.Yds., of open site in Sy.No.193, situated at Huzurnagar, which was standing in the name of his wife, the defendant. After negotiations the price of the plot was fixed at Rs.150/-. Accordingly, on 03-10-1985, the plaintiff paid an amount of Rs.1,65,000/- to the defendant and duly executed the Agreement of Sale in favour of the plaintiff and delivered the physical possession of the suit schedule property. The plaintiff further stated that as per the terms of the said agreement, though the suit land was approximately measured as 1150 Sq.Yds., it should be measured by 01-05-1986 to know the actual extent, and that after receiving the balance sale consideration, if any, at the rate of Rs.150/- per Sq.Yd., the defendant has to execute a registered sale deed in favour of the plaintiff. But, contrary to the said agreement, the defendant tried to sell away the suit site to others at higher rate. The husband of the defendant is postponing the matter. Finally, the plaintiff received copies of the Caveat filed by the defendant on 21-03-1986 and came to know that the defendant denying the execution of the agreement of sale and delivery of possession. The plaintiff is always ready and willing to perform his part of contract and also ready to pay the balance sale consideration, if any, after measuring the suit land. Hence, the suit seeking specific performance of the agreement of sale with an alternative relief for refund of money. The defendant filed her written statement denying the agreement of sale the land, execution of the agreement of sale, receipt of Rs.1,65,000/- and delivering the possession of the suit land. She contends that they want to construct a house in their site and as the plaintiff obstructed for the said construction, they have filed Caveat petition on the file of the Munsif Magistrate, Huzurnagar. Further, the plaintiff has no capacity to purchase the site and he never paid the alleged amount, and even till today the defendant is in possession of the suit land. As the suit site is situated in a very busy locality, the plaintiff filed the suit only to knock away the suit site free of cost, by fabricating false agreement of sale. The plaintiff has no right over the suit site and prayed for dismissal of the suit.
3. On the basis of the above pleadings, the trial Court framed the following issues for trial: (1) Whether the agreement of sale dated 03-10-1985 is trued, valid, supported by consideration and binding on the defendant?. (2) Whether the plaintiff was put in possession and continued in possession in his own right?. (3) Whether the plaintiff was always ready and willing to perform his part of the contract?. (4) Whether the plaintiff is entitled to specific performance?. (5) Whether the plaintiff is entitled to a permanent injunction or in the alternative restoration of possession?. (6) Whether the plaintiff is entitled in the alternative to refund and damages and if so to what extent?. (7) To what relief?.
4. On behalf of the plaintiff, PWs.1 to 3 were examined and Exs.A.1 to A.3 were marked. On behalf of the defendant, D.Ws.1 and 2 were examined and Exs.B.1 to B.12 were marked.
5. After having perused the oral and documentary evidence on record by the impugned Judgment and Decree, dated 26-02-1993, the learned Subordinate Judge, Miryalaguda, accepted the plea of the plaintiff, held all the issues in favour of the plaintiff and decreed the suit, with a direction to the defendant to get the land measured within three months, and if the extent of suit site is found more than 1150 Sq.Yds., the plaintiff shall pay the amount of the excess site at the same rate to the defendant, and that the defendant shall receive the same and execute a regular sale deed, and if the defendant fails to do so, the plaintiff can get the aforesaid things done through process of law and recover the costs thereof.
6. Aggrieved by the same, the defendant preferred the present appeal contending that the Court below has not appreciated the oral and documentary evidence on record in proper perspective as there was no execution of the agreement of sale between the parties; the Court below also erred in not sending the disputed document Ex.A.1 to handwriting expert, and contending that non- examination of the scribe of Ex.A.1 is fatal to the plaintiffs case. Hence, the appeal.
7. Heard both sides and considered the material on record.
8. The points that arise for consideration are as to whether Ex.A.1 agreement of sale dated 03-10-1985 purported to have been executed by the deceased appellant/1st defendant is a genuine document and whether the respondent/plaintiff is entitled to the relief of the specific performance of the said contract?.
9. The parties herein are referred to as they are arrayed in the main suit, which was originally filed as O.S.No.24 of 1986 on the file of the Sub-Court, Suryapet and was subsequently transferred to the Sub-Court, Miryalaguda, where it was re-numbered as O.S.No.65 of 1988.
10. The suit was filed by the plaintiff on 31-03-1986 of seeking a direction to the defendant (since deceased) to execute the registered sale deed in favour of the plaintiff regarding the suit land by receiving the balance consideration of Rs.7,500/- or such other amount as may be found due upon measurement of the suit land for which the plaintiff is ready to bear the registration charges and the measurement expenses. Alternatively, the plaintiff claim that if for any reason, the specific performance of the contract canot be ordered, the defendant may be directed to pay Rs.1,72,500/- consisting of Rs.1,65,000/- towards sale consideration received by the plaintiff, and Rs.7,500/- towards damages. The plaintiff further claim that the said amount may be directed to be paid by the defendant to the plaintiff together with interest at 18% per annum.
11. The suit schedule property consists of 1150 Sq.Yds., of open site in Sy.No.193 of Huzurnagar revenue village of Ward No.1 of Huzurnagar Gram Panchayat, Nalgonda District.
12. There is no dispute insofar as the ownership and title of the suit property is concerned and the acquaintance between the plaintiff and the deceased husband of the deceased defendant.
13. According to the plaintiff, in the month of July, 1985, there was an agreement in between the husband of the defendant and himself for the sale of the suit schedule land at the rate of Rs.150/- per Sq.Yd., and the total consideration thereof works out to Rs.1,72,500/-. There was some uncertainty about the actual measurement of the land. The plaintiff took some time for mobilizing the resources. In September, 1985, the plaintiff could arrange a sum of Rs.60,000/- and offered the same to the defendant, which was refused on the ground that the entire consideration should be paid. Accordingly, according to the plaintiff, on 3-10-1985, the plaintiff has arranged a sum of Rs.1,65,000/- and paid the same to the defendant and on that day, the agreement of sale Ex.A.1 was executed by the deceased defendant in the presence of her husband and also PWs.2 and 3. The agreement of sale Ex.A.1 was scribed by one Ram Reddy, who has not been examined. According to the plaintiff, the possession of the land was delivered on the same day. Further the plaintiff claims that it was agreed between the parties that the actual measurement of the land should be made on 01-05-1986 and by receiving the balance consideration that works out for the land, the registration should be completed. However, on 18-03-1986, the defendant and her men are said to have attempted to clear the bushes on the suit land and the said act was resisted by the plaintiff. On 21-03-1986, the defendant filed a caveat petition in the jurisdictional Court, the copy of which is Ex.A.1. The plaintiff, on his part, also filed a caveat petition in the same Court on 24-03-1986, which is Ex.B.1. Thereafter, the plaintiff filed a caveat petition on 31-03-1986 on the file of Sub- Court, but on the same day, the plaintiff filed the suit in hand. The allegation of the plaintiff is that having entered into agreement of sale, in view of the escalation in the value of the land, the defendant and her men are trying to avoid the transaction and hence the suit.
14. On 11-06-1986, the defendant filed her written statement. She has specifically denied all the contentions and allegations of the plaintiff and denied having entered into any transaction with him. The defendant denied having executed Ex.A.1, having received Rs.1,65,000/- and having delivered possession. The defendant in her written statement specifically stated that some mystery clouds regarding purchase of stamp (paper) on which the alleged agreement is written and that the plaintiff maliciously brought into existence the agreement of sale with the help of his friends.
15. During the pendency of the appeal, the appellant-defendant died and her legal representatives were impleaded as appellants No.2 to 7 vide orders in C.M.P.No.19459 of 1995, dated 18-1-1997.
16. Learned Counsel for the appellant/defendant submits that the trial Court has decreed the suit accepting Ex.A.1 to be a genuine transaction mainly on the ground that the defendant in her evidence as D.W.1 admitted her signature thereon. Learned Counsel further submits that the appellant/defendant had been denying the entire transaction consistently right from March 1986 i.e., even before the suit was filed and therefore her stray admission in the cross-examination that Ex.A.1 contains her signature cannot be taken as basis for holding Ex.A.1 as proved. Learned Counsel submits that if the entire evidence of D.W.1 is perused, it is manifest that the said admission is made in confusion even though in chief-examination and other part of evidence, she has consistently denied having executed the agreement of sale-Ex.A.1. Learned Counsel further submits that it is evident that the defendant in her written statement itself which was filed as long back as on 11-06-1986 i.e., within less than three months after the suit was filed, she has taken a specific plea that mystery surrounds the stamp paper on which Ex.A.1 was brought into existence. It is contended that a perusal of Ex.A.1 clearly shows that it is not a genuine document. The stamp paper on which the agreement of sale was executed was executed on 03-10-1985 whereas the stamp paper was purchased from the stamp vendor by name Peer Mohammad on 04-09-1985. However, on the reverse of the stamp paper, there is a rubber stamp and the endorsement of the Treasury Office to the effect that the said stamp paper was issued from the Treasury on 27-02-1986. Learned Counsel vehemently submits that when the stamp paper itself was issued from the Treasury on 27-02-1986, the question of it being sold by the stamp vendor to the plaintiff on 04-09-1985 and it being executed on 03-10-1985 itself shows that the said document has been manipulated by the plaintiff in collusion with his people including the stamp vendor. Learned Counsel further submits that this material aspect has not been considered at all by the trial Court, which has erroneously decreed the suit.
17. On the other hand, learned Counsel for the respondent- plaintiff contends that once the appellant-defendant admits her signature on Ex.A.1, it has to be presumed to be a valid and genuine document and nothing else remains to be proved by the plaintiff and once the execution was admitted, the plaintiff is entitled to the specific performance of the contract. Therefore, the learned Counsel submits that the Court below has properly appreciated the evidence on record and decreed the suit on the basis of the material on record.
18. In view of the rival submissions, the point in controversy boils down to the genuiness of the agreement of sale Ex.A.1 said to have been executed by D.1 on 03-10-1985. While the plaintiff would have it that there was an agreement of sale on the said date, on which day, out of Rs.1,72,500/-, Rs.1,65,000/- was paid and the possession was also delivered and the further agreement was that the land need to be measured and after measurement and the exact extent is determined, the balance amount has to be paid and the registration to be completed, for which the date was fixed as 01-05-1986. The 1st defendant, as already stated, has been consistently denying the said transaction.
19. Section 20 of the Specific Relief Act, 1963 confers jurisdiction on a Court to decree a suit for specific performance which discretion is to be used, guided by judicial principles but not an arbitrary and unreasonable exercise of the jurisdiction should be resorted. Sub-clause (a) of sub-section (2) of Section 20 lays down that where the terms of the contract or the conduct of the parties at the time of entering into the contract or the other circumstances under which the contract was entered into are such that the contract, though not voidable, gives the plaintiff an unfair advantage over the defendant, cannot be enforced.
20. In the instant case, the 1st defendant is a housewife and a lady, aged more than 50 years. Her husband is a businessman. She also had three sons and three daughters, who have all come on record as appellants in the appeal in view the death of the defendant. It is admitted that though the property in question stood in her name, the affairs were being looked-after by her husband and children. It is also admitted that that the plaintiff and the husband of the defendant were close friends who unfortunately have fallen apart due to some disputes. Where there is suspicion surrounding execution of an agreement by a defendant who happens to be a not so well versed woman and whose property affairs are handled by the male members of the family, plaintiff cannot be granted a decree on the basis of an agreement of sale said to have been executed by such a lady unless he successfully dispels the suspicion surrounding the execution. As regards the documents that were obtained from such a woman, the Court has to ascertain that the person who executed them has been a free agent and duly informed of what it was all about. The general rule that a person who puts his or her signatures is presumed to understand the document does not apply in case of such woman who completely depend upon the other members of the family for their affairs. In such cases, the burden of proof heavily rests upon the plaintiff so as to sustain the transaction said to have been executed by such person. Duty is also cast upon the person trying to seek benefit out of such document to establish that it was not merely a physical act but also a mental act on the part of the executant to enter into transaction with regard to the property which stood in her name. In nutshell, the burden is upon the plaintiff to prove that the document Ex.A.1 alleged to have been executed by the defendant was a voluntary act performed freely after understanding its consequences. Merely because signature is appended on a document, it cannot be concluded that the executant had knowledge about its contents unless it is established by surrounding facts and circumstances and by the other evidence either direct or circumstantial.
21. In this connection, a decision of our High Court which has been relied upon by the learned Counsel appearing for the appellant and which has direct bearing may usefully be referred to. In CHODI MAHALAKSHMI v. KOPPADA SATHIRAJU after referring to various authorities on the subject, this Court held that when execution is denied mere proof of signature of the executant not sufficient, that the person relying upon such document must further establish that executant affixed his signature after knowing the contents thereof. In the case before the High Court, the facts similar to the one in hand were present. This Court further observed that merely because the defendant admits the signature on the agreement of sale, the burden cannot be shifted on to the defendant. But, on the other hand, the party seeking specific performance has to prove the terms of the contract, the contents of the agreement, and also the passing of the consideration. In the said decision, reliance was placed upon the decision of the Supreme Court in RAMJI DAYAWALA AND SONS (P) LTD. v. INVEST IMPORT wherein it was held as under:- Undoubtedly, mere proof of the hand-writing of a document would not tantamount to proof of all the contents or the facts stated in the document. If the truth of the facts stated in a document is in issue mere proof of the handwriting and execution of the document would not furnish evidence of the truth of the facts or the contents of the document. The truth or otherwise of the facts or contents so stated would have to be proved by admissible evidence i.e., by the evidence of those persons who can vouchsafe for the truth of the facts in issue.
22. In the case in hand, the learned Counsel appearing for the respondent-plaintiff vehemently submits that the defendant as D.W.1 has admitted in her cross-examination that agreement of sale Ex.A.1 contains her signature. I have gone through the entire evidence of D.W.1. I have no hesitation in observing that the said admission is a stray admission which has no connection whatsoever with the other part of her testimony. Both in her chief- examination and also her cross-examination, D.W.1 has been consistently denying the transaction and execution of Ex.A.1. However, when several signatures of her were confronted during her evidence, she stated that Ex.A.1 contains her signature. No capital can be made out of it by the plaintiff and it does not, in any way, absolve the plaintiff his responsibility of proving the transaction by placing all the relevant evidence. It may be recalled that the agreement of sale is said to have taken place on 03-10-1985, on which date, out of Rs.1,72,500/- total consideration, Rs.1,65,000/- was paid and just about Rs.5,000/- to Rs.8,000/- was payable. The agreement also contains that the suit property admeasuring 1150 Sq.Yds., but the exact measurement to be taken. Neither of the two clauses will take much time and they are well within the hands of the parties to a contract. Getting the land measured and paying the balance consideration which is very negligible can be completed immediately but certainly for that purpose, the parties need not wait for seven months. As noticed above, according to the plaintiff, when the agreement was on 03-10-1985, it was agreed between the parties that the measurement will be made on 01-05-1986 and the balance consideration will be paid on that day, and the amount will be paid. Therefore, the parties had time to fulfil their part of the contract till 01-05-1986. As against that, the plaintiff has rushed to the Court and filed the suit for specific performance on 31-03-1986 itself. The plaintiff has not produced any evidence to show that before filing the suit, he has called upon the defendant to receive the balance consideration after completing the measurements, the date for which actually was fixed as 1-5-1986 in the agreement itself.
23. Till 18-03-1986, there was absolutely no movement on the part of the either of the parties even though the contract was in subsistence for more than five months. Only after 18-03-1986 the dispute appears to have arisen. Firstly, the defendant filed a caveat and four days thereafter, the plaintiff also filed a caveat in the Court. For the first time, in the caveat Ex.A3 filed by the plaintiff, a mention is made about the agreement of sale Ex.A.1 said to have been executed between the parties. On 31-3-1986 the defendant called upon the plaintiff to furnish a copy of the alleged agreement of sale, denying the same, but on the same day, the plaintiff has rushed to the Court and filed the suit for specific performance. It may again be stated that dehors the denial and the dispute, the plaintiff and the defendant were to take measurement of the land only on 01-05-1986 and pay the balance consideration and complete the transaction.
24. The most suspicious circumstances surrounding the execution of Ex.A.1 is the fact that the stamp paper on which it is executed was issued by the Sub-Treasury to the Stamp Vendor by name Shaik Ahmed Hussain only on 27-02-1986. A rubber stamp to that effect is clearly found on the reverse of the stamp paper on which Ex.A.1 was executed. It is manifest that the stamp paper was in the treasury of the Government at least till 27-02-1986. How can that stamp paper be sold by the stamp vendor Shaik Ahmed Hussain to the plaintiff on 04-09-1985 as endorsed thereon and how can it be executed on 03-10-1985. It is apparent that the stamp paper was purchased by the plaintiff only after 27-02-1986 and it was executed by ante-dating it. Voluminous documentary evidence has been produced by the defendant to show about the illegal act of the stamp vendor in selling the stamp paper which he himself brought from the Treasury on 27-02-1986 by putting the date as 04-09-1985. The son of the defendant has been examined as D.W.2 and it is in his evidence that he gave a complaint to the competent authorities complaining against the illegal act of the stamp vendor. The matter was enquired into by the concerned authorities and the licence of the said vendor was suspended. The enquiry revealed that the stamp vendor has not submitted the registers showing the sale of the stamp papers by the end of 31-12-1985, which was mandatory. Since the registers were in the custody of the stamp vendor even after 31-12-1985, it appears that he sold the stamp paper in February, 1986 by putting the date of September 1985. Ex.B.4 to Ex.B.12 are the documents which clearly show the action that has been taken against the stamp vendor by the competent authorities.
25. Be that as it may, the defendant on her part has been consistently denying that she entered into any transaction with the plaintiff. She denies having signed on the agreement of sale. I have carefully perused Ex.A.1, which is said to contain the signature of D.1. I have no hesitation in holding that the signature thereon appears to be forged. It is clear even to a naked eye that originally tracing was done and subsequently the signature was put since it is clearly noticed that every syllable of her signature is overwritten. That is not possible if a signature is genuine. Only when tracing has been done and the signature is sought to be put thereafter, there will be overwriting, which fact is clearly visible in Ex.A.1.
26. As noticed above, the burden of proving the transaction is on the plaintiff. For that purpose, he himself examined as PW.1 and also examined PWs.2 and 3, who are the attestors. The scribe of Ex.A.1 has not been examined. The evidence of PWs.1 to 3 is carefully perused and the same is found to be inconsistent on the material aspect. According to the plaintiff/PW.1, he purchased the stamp paper from one Peer Mohammed of Huzurnagar, which is incorrect. The stamp paper has been sold by one Shaik Ahmed Hussain, the stamp vendor but not Peer Mohammed. According to PW.1, the husband of defendant was very much present when the transaction was effected. By that time he was his close friend. The defendant was a housewife. The plaintiff has not insisted or made any endeavour to obtain the signature of the husband of the defendant on Ex.A.1. According to PW.1, Ex.A.1 was scribed in the house of the defendant. According to PW.1, initially himself and the scribe Ram Reddy went to the house of the defendant. Sometimes thereafter, V.Venkaiah (PW.3) came. After some more time thereafter, Jarji Reddy (PW.2) has come. He claims that PWs.2 and 3 came to the house of the defendant as he called them. He further claims that at the time when he paid the cash of Rs.1,65,000/-, the husband of the defendant, the scribe Ram Reddy, the attestors PWs.2 and 3 were all present. In further evidence, PW.1 however stated that his son picked up PWs.2 and 3, who are at the mill and near bus stand and brought them to the house of the defendant. Therefore, according to PW.1, it is he who called PWs.2 and 3 but subsequently he added that his son went and brought PWs.2 and 3 from the Rice Mill and bus stand respectively. According to PW.1, he has not paid the entire consideration on the date of Ex.A.1 but PW.2 would have it that the plaintiff has paid the entire sale consideration to the defendant at the time of agreement. According to him, the scribe Ram Reddy read over the agreement and the defendant signed and thereafter himself and PW.3 attested the document. According to PW.2, by the time he reached the house of the defendant, all (the plaintiff, the defendant, her husband the scribe and another attestor-PW.3) were present. According to PW.2, the document Ex.A.1 was scribed only after all assembled there. However, the other attesting witness PW.3 gives a different version. According to PW.3, by the time he went to the house of the defendant, the document was already executed. PW.3 claims that it is the plaintiff who told him that he paid Rs.1,65,000/- to the defendant and it is the plaintiff who told him that the defendant has delivered the possession. PW.3 categorically asserted that by the time he reached the house of the defendant, the payment of the amount and the signing of the contract by the defendant on Ex.A.1 has already taken place and the defendant went away inside the house. He further went on to say that after the scribe read over the contents, he signed first and thereafter the other attesting witness PW.2 signed. PW.3 further would have it that while he was passing on the road, the son of one Narsi Reddy called him to the house of the defendant. Who is that Narsi Reddy is not spoken to by PW.3 nor he has named the son of the said Narsi Reddy who called him to the house of the defendant. It may be recalled that, according to PW.1, he sent for PWs.2 and 3 and his own son went and brought them from the Rice Mill and the bus stand respectively. If PW.3 is to be believed, even by the time PWs.2 and 3 went to the house of the defendant, the scribing of the document is completed, signature was already put by the defendant, consideration was already paid by the plaintiff to the defendant and the possession was also delivered by the defendant to the plaintiff and the defendant went away inside her house. According to PW.3, the entire transaction was completed even before he went there and only after the contents were read over to him by the scribe first he signed and thereafter the other attesting witness PW.2 signed on it. A vital admission from the mouth of PW.3, which erodes considerably the credibility of PW.3 is that the said Narsi Reddy told him what all happened and he has no personal knowledge.
27. As against the above material on record, the learned trial Court has clearly erred in holding that the admission of the defendant that the signature on Ex.A.1 belongs to her goes long way and probablized the case of the plaintiff. As stated above, even if the defendant admits that Ex.A.1 contains her signature, that do not, in any way, proves the case of the plaintiff or probablize his contentions as has been held by the High Court in the case referred to above. The contention of the learned Counsel appearing for the appellant that there is no satisfactory proof of execution of the contract of sale by the defendant and mere admission of the signature is no proof of the execution of the document or the contents of the document in a suit for specific performance. It is for the plaintiff to prove all the aspects and there is no satisfactory evidence about the execution of Ex.A.1, payment of consideration, delivery of possession and the terms of the contract. On the other hand, there is strong suspicion about the stamp paper on which Ex.A.1 was executed and the defendant in her written statement, filed within three months of the suit being filed, contended that some mystery clouds regarding the purchase of the stamp paper on which the agreement of sale was written and that the plaintiff had maliciously brought into existence the suit agreement with the help of his friends. The learned trial Court was therefore in error in decreeing the suit without properly appreciating the evidence on record and taking note of the suspicious circumstances and therefore the same is liable to be set aside. The point is accordingly answered.
28. In the result, the appeal is allowed and the Judgment and Decree in O.S.No.65 of 1988 on the file of the Subordinate Judge, Miryalaguda, dated 26-02-1993, is set aside and the suit of the plaintiff stands dismissed with costs throughout. Consequently, the miscellaneous petitions, if any, pending in this appeal shall stand closed. __________________ M.S.K.Jaiswal, J Date:September, 2014