Judgment:
C.Y. Somayajulu, J.
1. For the sake of convenience, the parties hereinafter would be referred to as they are arrayed in the Trial Court.
2. The case of the plaintiff, in brief, is that defendant who happens to be the owner of Ac.2.00 of land specified in the plaint schedule (hereinafter referred to as the suit property) agreed to sell the same to him at Rs. 10,000/- per acre and executed an agreement to sell on 22-10-1979 as per the terms of which he has to pay Rs. 10,080/- to Sabbisetti Rattayya towards discharge of the debt covered by promissory note dated 26-5-1977 executed by the defendant in his favour and had paid Rs. 4,920/- as advance, and an amount of Rs. 3,400/- was adjusted towards the amount due to him from the defendant and balance of Rs. 1,600/- has to be paid at the time of registration in the first week of June, 1980, but defendant failed to register the document after receipt of the balance amount in spite of repeated demands and a registered notice sent through his advocate.
3. The case, in brief, of the defendant is that the agreement relied on by the plaintiff is a nominal one, entered into at the instance of Sabbisetti Rattayya the father of the plaintiff, who is a businessman dealing in fertilizers and to whom he owed some amount as price for the fertilizers purchased by him in that shop on credit, and that the father of the plaintiff for fear that he may claim the benefit under the debt relief legislation, and avoid the amount due and payable to him, took the agreement of sale relied on by the plaintiff in the name of the plaintiff, and since he has to pay Rs. 15,000/- only to the father of the plaintiff, and since plaintiff is a stranger to him, plaintiff is not entitled to any relief.
4. Basing on the pleadings, the Trial Court framed four issues and one additional issue for trial. In support of his case, plaintiff examined his father (Sabbisetti Rattayya) as PW.1 and the scribe of the agreement of sale relied on by him (Ex.A-1) as PW.2 and marked Exs.A-1 and A-5. In support of his case, defendant examined himself as DW.1 and two other witnesses as D.Ws.2 and 3 and marked Exs.B-1 to B-3. The Trial Court, on Issue 1 and additional issue, which relate to the questions whether plaintiff is entitled to the relief of specific performance or is entitled to refund of Rs. 18,400/-, held that though plaintiff is not entitled to the relief of specific performance, as there is an alteration in the Ex.A.1, without the knowledge of the defendant, and since defendant admitted that he owes Rs. 15,000/-, plaintiff is entitled to a decree for refund of Rs. 15,000/- with interest at 12% per annum, and on Issues 2 and 3, which relate to the questions whether plaintiff is entitled to reliefs of possession and profits, held against the plaintiff, and consequently, on Issue 4, which relates to the relief, passed a decree for Rs. 20,400/- in favour of the plaintiff against the defendant with subsequent interest at 6% per annum with proportionate costs. Aggrieved by the refusal of the Trial Court to grant the relief of specific performance, plaintiff preferred the appeal. Aggrieved by the decree for Rs. 20,400/-passed against him, defendant preferred cross objections.
5. The main contention of the learned Counsel for the plaintiff is that the Trial Court was in error in giving a finding on the alleged alteration in Ex.A-1, without there being a specific issue on that point. It is his contention that since the evidence of PW.2, who, according to the learned Counsel, is an independent witness, clearly shows that Ex.A-1 was read over to the defendant before he affixed his signature thereto, it is easy to see that there can be no interpolation in Ex.A-1 without the knowledge of the defendant. It is his contention that when plaintiff discharged the initial onus of proving Ex.A-1 and when defendant failed to establish that there are alterations in Ex.A-1 without his knowledge, the finding of the Trial Court on the alterations in Ex.A-1 is unsustainable. It is also his contention that the Trial Court was in error in not believing the evidence adduced by the plaintiff to show that defendant was owing Rs. 3,400/- to the plaintiff. He further contended that the evidence adduced by the defendant has to be ignored, as it is contrary to Sections 91 and 92 of the Evidence Act and Section 18 of the Specific Relief Act. It is his contention that since defendant did not deposit Rs. 15,000/- admittedly due from him to show his bona fides, and admittedly is continuing in possession of the suit property and is enjoying the profits therefrom, plaintiff is entitled to a decree of specific performance with profits. The contention of the learned Counsel for defendant is the Trial Court which came to a conclusion that Ex.A-1 is tampered with, was in error in passing a decree for refund of Rs. 15,000/-with interest at 12% per annum.
6. The points for consideration are:
(1) Whether plaintiff is entitled to seek specific performance of Ex.A.1?
(2) Whether, if not, plaintiff is entitled to refund of any and, if so, to what amount?
7. At the outset, it should be stated that the case of the plaintiff, is that the agreement, initially, was in respect of Acs. 1.50 cents of land out of Acs.2.00 at Rs. 10,000/- per acre, only but when the scribe started writing schedule of property, defendant offered to sell the remaining Ac.0.50 cents also, and so, in the schedule, the area of the property to be sold was mentioned as Acs.2.00 though in the preamble of the Ex.A-1 it is stated that it is an agreement in respect of Ac.1.50 cents, and though the recitals in Ex.A-1 show that possession of the suit property was delivered, possession thereof in fact was not delivered and defendant himself is enjoying the usufructs from the suit property.
8. PW.2, the scribe of Ex.A.1, stated that defendant knows how to sign, but is not educated and that none attested Ex.A-1 in his presence and that Illuri Raghavayya was not present when he was scribing Ex.A-1 in the house of PW.1 and that in the schedule appended to Ex.A-1, he mentioned that Acs.2.00 was agreed to be sold for Rs. 20,000/- because defendant agreed to sell Acs.2.00 and that the contents of Ex.A-1 are true. The contention of the learned Counsel for the defendant is that merely because PW.2 stated that the contents of Ex.A-1 are true, it cannot be said that all the contents of Ex.A-1 are true and correct, I find force in that contention because though Ex.A-1 shows that two persons attested it, PW.2 admitted that nobody attested Ex.A-1 in his presence. The recitals in Ex.A-1 show that possession of the suit property was delivered to the plaintiff on that day itself, but, even according to the plaintiff, possession of the suit property was not delivered to him. When the allegations in the plaint show that the recital in Ex.A.1 that possession of the suit property was delivered is not true, it is clear that plaintiff himself knows that all the recitals in Ex.A.1 are not true. Then how can the evidence of PW.2 that all the recitals in Ex.A.1 are true be accepted as true?
9. The Trial Court after discussing the evidence on record elaborately, held that Ex.A-1 in fact was executed by the defendant with a view to sell Acs.2.00 of land to the plaintiff but not as a security for the transaction of a loan between him and PW.1. That finding became final because defendant in his cross-objections did not challenge the said finding.
10. The Trial Court, on the basis that interpolation in Ex.A-1 reading Rs. 3,400/-(allegedly) due to the plaintiff from the defendant was adjusted towards sale consideration, was made without the knowledge of the defendant, held that plaintiff who did not come to Court with clean hands, is not entitled to the relief of specific performance. The contention of the learned Counsel for the plaintiff that the Trial Court was in error in holding against the plaintiff, without framing a specific issue on the interpolation in Ex.A.1 has no force, because non-framing of an issue would vitiate the finding of the Trial Court when parties do not know the case of the other side, and do not lead evidence on the said aspect. With regard to a fact on which there is no issue, when both parties know the case of the other side and when they adduced evidence on the pleas taken, the fact that no specific issue is framed is of no consequence. See Kanju Kesavan v. M.M. Philip, : [1964]3SCR634 . The facts in Gappulal v. Thakurji Shriji Dwarkadheeshji, : [1969]3SCR989 , relied on by the learned Counsel for plaintiff are entirely different from the facts in this case. So, the decision has no application to the facts of this case.
11. The contention of the learned Counsel for plaintiff that since defendant admitted execution of Ex.A-1, he cannot, in view of Sections 91 and 92 of Evidence Act, contend that there is interpolation in Ex.A1 cannot be accepted because admission of the defendant is not with regard to the interpolation in Ex.A.1 and since what is prohibited by Sections 91 and 92 of the Evidence Act is the admission of oral evidence varying the terms in written agreement etc. In S. Saktivel v. M. Venugopal Pillai, : AIR2000SC2633 , relied on by the learned Counsel for the plaintiff, it is held that where a document is required by law to be in writing, oral evidence to substitute any subsequent arrangement, which has effect of modifying earlier written deed, cannot be permitted. The said decision has no application to the facts of this case. This is not a case of varying terms of Ex.A-1, but is case of tampering with a document executed by the defendant without his knowledge and consent. Neither Section 91 and 92 come into play in cases where one of the parties to the contract pleads material alteration to the agreement said to have been entered into between them. In such a case, the question would be whether there is a material alteration in the agreement or not, for consideration of which neither Section 91 and 92 of the Evidence Act have a role to play.
12. As rightly observed by the Trial Court, if really defendant was owing Rs. 3,400/- to the plaintiff, the plaintiff or PW.1 would not have paid Rs. 4,920/- to the defendant at the time of execution of Exs.A.1 as stated by PWs.1 and 2, because no prudent creditor would pay cash to the vendor debtor while keeping the debt alive. That apart the evidence of PW.2 shows that he has not personal knowledge about settlement of accounts between the defendant and PW.1. He (PW.2) stated--
'The amount of Rs. 15,000/- is adjusted towards the sale consideration of Acs.1.50 cents of land while I was scribing Ex.A-1. The defendant agreed to sell another Ac.0.50 cents of land. At this stage, PW.1 stated that some amount was also due from defendant on some other account. Therefore no necessity arose for payment of any cash on that day. I do not know on what account the defendant has to pay Rs. 3,400/- to the plaintiff.'
As per the recitals in Ex.A-1, Rs. 3,400/-due to the plaintiff was adjusted from the sale consideration payable by the plaintiff. For reasons best known to him, plaintiff did not go into the witness box to swear to the fact that defendant in fact owed some amount to him. This apart, the fact that PW.2 is a person who would oblige PW.1 would be evident from the fact that he (PW.2) stated that Ex.A-5 endorsement was made on Ex.A.4 on 22-10-1979. (What he stated is, 'promissory note referred to in Ex.A-1 dated 26-5-1977 is Ex.A.4 the endorsement made by me thereon dated 22-10-1979 is Ex.A-5'). But, the evidence of PW.1 clearly shows that debt covered by Ex.A-4 was adjusted in between him and his son one month subsequent to Ex.A-1. (He stated 'The pronote debt due to me from defendant was adjusted in between me and my son and the plaintiff one month after Ex.A-1. This adjustment is not borne by our business account either myself or my son.') So, it is cleat that PW.2 is a witness interested in PW.1, and so, his obliging the plaintiff and PW.1 to interpolate a sentence in Ex.A-1, cannot be ruled out. A close and careful look at page 2 of Ex.A-1 shows that the words ('Telugu Matter') are in a different ink from the rest of the body of Ex.A-1. Significantly, the said interpolation does not contain the attestation of the defendant. If and when an interpolation is made with the knowledge and consent of the executant, his signature or thumb impression would be taken near that interpolation or interleniation. Absence of signature of the executant near the interpolation or interleniation shall, normally, be presumed to have been made without the knowledge and consent of the executant.
13. It is well known that the relief of specific performance is a discretionary, and Courts do not exercise discretion in favour of persons who do not come to Court with clean hands. As held in K. Venkatasubbayya v. K. Venkateswarlu and Ors., : AIR1971AP279 , plaintiff who sets up false plea of payment, is not entitled to the discretionary relief of specific performance. Therefore, the finding of the Trial Court that plaintiff who did not come to Court with clean hands is not entitled to the relief of specific performance, cannot be said to be erroneous and so, I do not wish to interfere with the said finding. Accordingly, I hold that the plaintiff is not entitled to the relief of specific performance of Ex.A-1. The point is answered accordingly.
14. The fact that the plaintiff is not entitled to the relief of specific performance and the fact that Ex.A-1 is tampered with by the plaintiff is not and cannot be a ground for negativing the relief of refund of the amount which is governed by Section 22 of the Specific Relief Act, more so because defendant admitted that he owes an amount of Rs. 15,000/- and so, I find no grounds to interfere with the finding of the Trial Court that plaintiff is entitled to refund of Rs. 20,400/- with subsequent interest at 12% per annum on Rs. 15,000/- from the date of plaint i.e. 25-10-1982 till the date of realization. The point is answered accordingly.
15. In view of my findings on the points for consideration, the appeal and cross objections are dismissed. No costs.