K.ANILKUMAR v. P.H.BASHEER, (DIED)

This appeal has been filed by the plaintiff aggrieved by the judgment and decree dated 30/10/2002 dismissing O.S.No.53/2001 on the file of the Subordinate Judge's Court, Nedumangad. The respondents herein are the defendants in the suit. The parties and the documents will be referred to as described in the suit.

2. According to the plaintiff, the first defendant, the owner of the plaint schedule property including a residential building situated therein, executed Ext.A1 agreement dated 10/02/2000 agreeing to sell the property for a sale consideration of ₹1,50,000/-. On the date of the agreement itself, an amount of ₹50,000/- was paid as advance sale consideration. The first defendant agreed to execute the sale deed on or before 30/06/2001 on receipt of the balance sale consideration of ₹1 lakh. As per the terms of the partition deed as per which the first defendant obtained title over the property, his mother had life interest in the property. Therefore it was R.F.A.No. 81 of 2003 3 agreed by the first defendant that he would get the consent of his mother also for the execution of the sale deed either by getting the right of the mother released in his favour or by making her also a party to the sale deed to be executed in favour of the plaintiff, by which time he would make arrangements for shifting his mother to a rented building. Though the plaintiff was always ready and willing to perform his part of the agreement, the first defendant failed in performing his part of the contract. The first defendant on one pretext or the other, kept postponing execution of the sale deed. Inspite of several personal demands and requests being made to the defendant, the latter never acceded to the same. Hence the plaintiff caused to issue Ext.A2 registered notice dated 25/06/2001, which was received by the first defendant on 27/06/2001. However, he never responded to the same.

2.1. The plaint was amended by which, pleadings were brought in to the effect that the first defendant in order to defeat his right in the property, executed Ext.A8 (Ext.B3) sale deed dated 13/03/2000 in favour of his sister, the additional second defendant for a sale consideration of ₹50,000/-. The plaintiff also came to know that the additional third defendant had obtained an order of attachment over the property as per R.F.A.No. 81 of 2003 4 order dated 03/03/2000 in O.S.No.20/2000 on the file of the Subordinate Judges' Court, Nedumangad. The first defendant had at no point of time ever informed the plaintiff of Ext.A8 (Ext.B3) sale deed. Hence the suit seeking a decree of specific performance or in the alternative for return of the advance amount of ₹50,000/- with interest at the rate of 18% per annum from 10/02/2000 till realisation and costs from the first defendant and his assets. By the amendment, prayer for setting aside Ext.A8 (Ext.B3) sale deed executed by the first defendant in favour of the additional second defendant and a decree of permanent prohibitory injunction restraining the defendants and their agents from alienating the property or committing waste in the property was also brought in.

3. The first defendant filed written statement denying the execution of Ext.A1 agreement. According to him, he had never entered into Ext.A1 agreement as alleged in the plaint. The plaintiff is an employee of the State Bank of Travancore, Nedumangad branch. In the year 1999, the first defendant had availed an agricultural loan from the said bank. The first defendant failed in repaying the loan amount and hence the bank issued a notice to him. The first defendant requested the bank to extend the period of repayment. The officer-in-charge of the section then was the plaintiff, who R.F.A.No. 81 of 2003 5 advised the defendant to handover blank signed stamp papers and other blank papers. The first defendant believing the plaintiff, handed over the same which have been fraudulently used by the plaintiff to create Ext.A1 agreement. The first defendant neither executed Ext.A1 agreement nor received any advance sale consideration as alleged in the plaint. The plaint schedule property and the building therein fetches more than ₹10 lakhs. When the loan was availed by the first defendant, the title deed, namely, the partition deed as per which the first defendant obtained title over the property had been given as security. It was from the said deed, the plaintiff got knowledge about the right and liabilities as well as the life interest of the first defendant's mother in the property. The sale deed executed by the first defendant in favour of his sister, the additional second defendant, is for valid sale consideration and now the title and possession of the property vests in the additional second defendant.

4. The additional second defendant filed separate written statement contending that she is a bona fide purchaser of the property without notice of Ext.A1 agreement. She is now the absolute owner of the property who is in possession of the same and therefore the plaintiff is not entitled to the reliefs prayed for. R.F.A.No. 81 of 2003 6

5. Summons though was served on the additional third defendant, he chose to remain ex parte. On completion of pleadings, the parties went to trial. PW1 to PW3 were examined and Exts.A1 to A9 were marked on the side of the plaintiff. DW1 and DW2 were examined and Exts.B1 to B3 were marked on the side of the defendants. The trial court on an appreciation of the oral and documentary evidence and after hearing both sides, by the impugned judgment dismissed the suit. Aggrieved, the plaintiff has come up in appeal.

6. The points that arise for consideration in this appeal are - (i) Has the plaintiff proved the execution of Ext.A1 agreement ? (ii) Is there any infirmity in the findings of the trial court calling for an interference by this Court ? (iii) Reliefs and costs.

8. Heard both sides. Ext.A1 agreement is stated to have been executed on 10/02/2000 by which the first defendant agreed to sell the plaint schedule property for a sale consideration of ₹1,50,000/-. The first defendant took up a contention of complete denial of execution of Ext.A1 agreement. The plaintiff when examined as PW1, stood by his case in the plaint. He was supported by PW2 and PW3, the witnesses in Ext.A1 agreement. The first R.F.A.No. 81 of 2003 7 defendant is no more and hence his legal representatives have been brought on record as additional defendants 2 and 3. It was submitted by the learned counsel for the defendants that the testimony of PWs.1 to 3 are inconsistent and hence they have been rightly disbelieved by the trial court. Therefore let me examine whether PW2 and PW3 are credible witnesses or whether there are any inconsistencies in their testimony as argued on behalf of the defendants.

9. PW1 during his cross examination was asked the details of the persons who were present when Ext.A1 was executed, to which he replied that his father, namely, PW3, and his wife were present. It is true that PW1 did not refer to the presence of PW2. But a close reading of his deposition would make it clear that the question that was put was to the details of the persons present at his residence at the time of execution of Ext.A1, to which he answered as stated above. The next aspect pointed out is that the testimony of PW2, who deposed that he had seen the first defendant affix one signature in Ext.A1 agreement. Ext.A1 agreement consists of more than one page containing the signature of the first defendant. Therefore it was argued that this testimony of PW2 would show that he had never witnessed the execution of Ext.A1 agreement because had he witnessed the R.F.A.No. 81 of 2003 8 same, he would have seen the first defendant affixing his signature in all the pages of Ext.A1. The signature of the first defendant is seen on all pages of Ext.A1 consisting of four pages. It is true that in the cross examination PW2 deposed that he saw the first defendant affixing one signature. He also deposed that when he affixed his signature in Ext.A1, the plaintiff, the first defendant and PW2 were present. In the re-examination, PW2 deposed that he had only seen the last page being signed by the parties. PW3 who is none other than the father of the plaintiff also supports the case of the plaintiff. PW3 deposed that his son, the plaintiff herein, had entered into Ext.A1 agreement for sale with the first defendant. An amount of ₹50,000/- was paid on 10/02/2000 as advance sale consideration. He had witnessed the transaction and is also a signatory to Ext.A1. In the cross examination he deposed that Ext.A1 agreement for sale was brought by the first defendant at which time the contents of Ext.A1 had already been typed. They had verified the title deed, that is, the partition deed by which the first defendant obtained title over the property with the recitals in Ext.A1 agreement and after being convinced that what was stated in Ext.A1 was true and correct, he affixed the signature in the same. PW3 also deposed regarding the presence of PW2 at the time of execution of Ext.A1 9 R.F.A.No. 81 of 2003 agreement.

10. It is true that the primary burden is on the plaintiff, the master of the suit, to establish the case. When the said burden is discharged, the onus would then shift to defendants to discredit or disprove the same. Here the explanation given by the first defendant regarding the presence of his signatures in Ext.A1 has not been proved or established in any manner. His specific case is that PW1, a Clerk cum Cashier working in SBT, Nedumangad, had misused certain blank signed stamp papers submitted by him seeking extension of time for repaying a loan taken by him and fabricated them into Ext.A1 agreement. The reason which prompted the plaintiff to fabricate this document is because the first defendant had left the employment of a partnership business which was being run by the plaintiff's wife along with another person. There is no such case for the defendant in his written statement. It is a very serious allegation that has been raised by the first defendant against the plaintiff. If the first defendant is to be believed, the plaintiff misusing his official position during the discharge of his official duties, fabricated Ext.A1 agreement. However, it is quite interesting to note that no complaint has been preferred by the first defendant either before the authorities concerned of the bank or before the R.F.A.No. 81 of 2003 10 police. He has also not produced any documents to show that any loan had been availed by him from the bank where the plaintiff was working.

11. My attention was also drawn to the place from where the stamp papers on which Ext.A1 agreement are seen executed were purchased. The documents are seen purchased in the name of the first defendant from a vendor at Sasthamangalam, Thiruvananthapuram. The plaintiff is residing at Peroorkada; SBT is at Nedumangad and the first defendant also residing at Nedumangad. Therefore, it was improbable for the first defendant to have purchased the stamp papers from Sasthamangalam, when stamp vendors were very much available in Nedumangad, goes the argument. This was one among the other aspects which prompted the trial court to disbelieve the case of the plaintiff. The specific case of the plaintiff on the other hand is that the first defendant had prepared Ext.A1 and brought it to his house for execution. This case of the plaintiff has not been discredited. The first defendant's case of the loan documents being fabricated into Ext.A1 agreement has not been established or even probabilised. Another reason to doubt the first defendant's case is that the plaintiff had issued Ext.A2 notice dated 25/06/2001, which is seen received by the first defendant as evidenced by Ext.A4 acknowledgement card. However he R.F.A.No. 81 of 2003 11 never responded to the same. Had the case of the first defendant been true, on receipt of the notice he would certainly have replied to the same denying the transaction. But for reasons best known to the first defendant, he never replied to the same. On an appreciation of the pleadings, the oral and documentary evidence, I find no reasons to disbelieve the case of the plaintiff regarding execution of Ext.A1 or passing of consideration.

12. As noticed earlier, Ext.A1 agreement was executed on 10/02/2000. The period within which the sale deed was to be executed was on or before 30/06/2001. The plaintiff has given an explanation for fixing the time period at 16 months. According to him, this long period was fixed so as to give sufficient time for the first defendant to shift his mother, who had a life interest in the property, to another residential building. The explanation seems quite plausible. After execution of Ext.A1 agreement dated 10/02/2000, the first defendant is seen to have executed Ext.A8 (Ext.B3) sale deed dated 13/03/2000 in favour of the additional second defendant, who is none other than his sister. The additional second defendant claims to be a bona fide purchaser of the property. However, this claim is highly doubtful. As per Ext.A1 agreement, the sale consideration for the property was fixed at ₹1,50,000/-. But as per Ext.B3 sale deed, the R.F.A.No. 81 of 2003 12 sale consideration is ₹50,000/-. If the case of the first defendant as pleaded in the written statement is to be believed, the property fetches more than ₹10 lakhs. In the evidence his case is that the value of the house is about ₹3 lakhs and that the property would fetch more than ₹10 lakhs. If that be so, how come he sold the plaint schedule property with the building therein for an amount of ₹50,000/- as stated in Ext.B3 sale deed ? A reading of the testimony of the additional second defendant examined as DW2, does not inspite confidence in the mind of this Court regarding her claim of being a bona fide purchaser. It has also come out in evidence that the second defendant has got a residential building and property situated quite near the plaint schedule property. It is true that there is no law which prevents a person from purchasing more than one house or property in her name. The mother of the first and second defendants admittedly had life interest in the property. Neither the mother nor the first defendant owned any house or property apart from the plaint schedule property. The circumstances which prompted the first defendant to execute Ext.B3 in favour of the second defendant has not been explained. Therefore it is quite doubtful whether Ext.A8 (Ext.B3) sale deed was in fact a bona fide transaction as claimed by the additional second defendant. R.F.A.No. 81 of 2003 13

13. PW1 to PW3 has specifically referred to passing of consideration also. The testimony of PW2 and PW3 regarding passing of consideration has not even been challenged. There is not even a suggestion that an amount of ₹50,000/- had not been given by the plaintiff. There is no case that the plaintiff was not ready or willing to perform his part of the contract. As per the unamended Section 20 of the Specific Reliefs Act, 1963, the relief of specific performance is a discretionary remedy. The question now to be considered is whether the said discretion is to be exercised in favour of the plaintiff. When Ext.A1 agreement was executed and thereafter the suit was filed, the mother of the first defendant was very much alive. It was submitted during the course of arguments that now she is no more. The agreement was executed in the year 2000. 24 years have lapsed since the execution of Ext.A1 agreement. It is true that the relief of specific performance cannot be denied on account of delay, which happened for no fault of the plaintiff. But taking into account the facts and circumstances of the case, I think this would not be a fit case to invoke the discretionary remedy of granting the relief of specific performance. In these circumstances, I find that the plaintiff is entitled to the alternative relief of return of the advance amount of ₹50,000/- with interest and costs from the R.F.A.No. 81 of 2003 14 first defendant and his assets. The rate of interest claimed by the plaintiff is 18% per annum. As this is not a commercial transaction, a reasonable interest alone can be granted. For the aforesaid reasons, the impugned judgment calls for an interference and hence I do so. In the result, the appeal is allowed and the impugned judgment and decree of the trial court is set aside. The suit is partly decreed and the plaintiff is entitled to an amount of ₹50,000/- with interest at the rate of 6% per annum from 10/02/2000 till realisation and costs from the first defendant and his assets. The decree shall be a charge on the plaint schedule property. Interlocutory applications, if any pending, shall stand closed. Sd/- C.S.SUDHA JUDGE ami/