Kerala High Court
Sarada vs Divakara Kurup on 12 October, 2012
Author: Thomas P.Joseph
Bench: Thomas P.Joseph
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH
FRIDAY, THE 12TH DAY OF OCTOBER 2012/20TH ASWINA 1934
RSA.NO. 1134 OF 2009 ( )
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AS.62/2003 OF FIRST ADDITIONAL DISTRICT COURT, MAVELIKKARA
OS.415/1999 OF MUNSIFF'S COURT, MAVELIKKARA
APPELLANT(S)/APPELLANT/DEFENDANT:
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SARADA, AGED 45, D/O.KOCHUPENNU,
VETTUKATTIL VEEDU, ULAVUKKADU MURI, PALAMEL VILLAGE
MAVELIKKARA.
BY ADVS.SRI.R.PADMAKUMAR
SRI.R.T.PRADEEP
SRI.P.B.KRISHNAN
SRI.R.SURAJ KUMAR
SMT.GEETHA P.MENON
SRI.P.M.NEELAKANDAN
RESPONDENT/RESPONDENT/PLAINTIFF:
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DIVAKARA KURUP, S/O.NARAYANAN NAIR,
DIVYALAYAM VEEDU, PAVUMBA VILLAGE, KARUNAGAPPALLY.
BY ADV. SRI.P.SREEKUMAR
THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON
12-10-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
THOMAS P.JOSEPH, J.
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R.S.A. No.1134 of 2009
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Dated this the 12th day of October, 2012
JUDGMENT
This Second Appeal arises from the judgment and decree of the Munsiff's Court, Mavelikkara in O.S. No.415 of 1999 allowing specific performance of Ext.A1, agreement for sale dated 20.01.1999, confirmed by the First Additional District Court, Mavelikkara in A.S. No.62 of 2003.
2. Plaint A and B schedules belong to the appellant/defendant as per Exts.A2 and A3, settlement deed No.2536 and sale deed No.2308 of 1998. While the appellant was in possession and enjoyment of the said property, it is alleged, she entered into Ext.A1, agreement dated 20.01.1999 for sale of the said items to the respondent for `50,000/-. She is said to have received `27,000/- by way of advance and agreed to execute the assignment deed in favour of the respondent within seven months from that day. It is further alleged that the original of document Nos.2536 and 2308 of 1998 along with the original tax receipt were given to the respondent. Since the appellant was not R.S.A. No. 1134 of 2009 -: 2 :- ready and willing to perform her part of the contract, the respondent issued notice dated 09.08.1999 demanding specific performance and appeared at the office of the Sub Registrar on 16.08.1999, but the appellant did not turn up. Hence the suit.
3. The appellant contended that there was no such agreement for sale, nor had she executed Ext.A1, agreement. She had borrowed `20,000/- from the respondent on 20.1.1999 agreeing to pay interest at the rate of Rs.1000/- per month. At that time, she gave a signed, blank, stamp paper to the respondent. She paid `4,500/- by way of interest. She claimed that the property is worth `4 lakhs and that the notice dated 09.08.1999 was replied by Ext.A7.
4. The respondent gave evidence as P.W.1 and examined P.Ws.2 and 3 who are the witness and scribe of Ext.A1, Appellant gave evidence D.W.1. D.W2, husband of the appellant, is said to be one of the attesters in Ext.A1.
5. The trial court rejected contentions of the appellant and ordered specific performance. That judgment and decree were confirmed by the first appellate court. Hence this Second Appeal.
R.S.A. No. 1134 of 2009-: 3 :-
6. The following substantial questions of law are framed for a decision:
(i) Whether the courts below are justified in making an opinion on the genuineness of signature when there is a posivtive denial by the person who is yet to have affixed his signature without deciding the opinion of an expert in terms of Section 45 of the Evidence Act?
(ii) With whom lies the burden of proof to prove a document whether upon the person who propounds the documents or upon the person who denies it?
(iii) Whether the evidence of P.Ws.1 and 2 are sufficient to prove Ext.A1 in the wake of unusuality prevading on it?
(iv) Whether deprivation of scheduled properties to defendant by throwing her to street and for a price which does not commensurate to its market value justify the invocation of discretionary remedy?
7. The learned counsel for the appellant has contended that due execution of the document is not proved. According to the learned counsel, merely because the appellant admitted her R.S.A. No. 1134 of 2009 -: 4 :- signature at the bottom of the stamp paper and the additional sheets appended to the stamp paper, due execution of Ext.A1 could not be found. The learned counsel contends that the signature appearing in between the writings on the last page of Ext.A1 is denied by the appellant. That signature does not bear similarity with the other admitted signatures in Ext.A1 and hence the courts below were not correct in finding in favour of due execution of Ext.A1 without expert opinion on the disputed signature. The learned counsel, placing reliance on the decision in Thiruvenkitam Pillai v. Navaneethammal and Another ([2008] 4 SCC 530) argued that though it is within the power of the court to compare the disputed signature with the admitted signature under Section 73 of the Evidence Act, doing so is a hazardous act.
8. A further argument the learned counsel has advanced is that at any rate, Ext.A1 was not intended to be agreement for sale, Instead; it was only a security for the due repayment of the loan. The learned counsel contends that evidence of the respondent as P.W.1 is eloquent indication that the parties had no intention to transfer the property. It is argued that the very fact that the original of document Nos.2308 and R.S.A. No. 1134 of 2009 -: 5 :- 2536 of 1998 along with the original tax receipt were handed over to the respondent would, by itself, indicate that the transaction was a loan transaction. In support of that, the learned counsel has placed reliance on the decision in K.Bhaskaran Nair v. Habeed Mohammed (AIR 2002 Kerala 308).
9. The learned counsel for the respondent would contend that falsity of plea of the appellant as to the execution of Ext.A1 is revealed in the evidence. It is submitted that though D.W.2 is 'Gopalakrishnan Nair', husband of the appellant, to make it appear that he has not signed Ext.A1 as a witness, he has written his name in his deposition as 'Sivasnakara Pillai' and has put a different signature. It is argued that the evidence of P.Ws.1 to 3 is sufficient to prove due execution of Ext.A1. When there is complete denial of execution of Ext.A1, it was not necessary for the respondent to prove readiness and willingness on his part. Reliance is placed on the decision in Narinderjit Singh v. North Star Estate Promoters Ltd. ([2012] 5 SCC 712).
10. So far as exercise of discretion under Section 20 of the Specific Relief Act is concerned, it is argued that no issue is framed by the trail court, nor the question considered by any of R.S.A. No. 1134 of 2009 -: 6 :- the courts below and hence this Court cannot, at this stage say that comparative hardship is more on the appellant than on the respondent if specific performance is ordered. Reliance is placed on the decision in Prakash Chandra v. Narayan (([2012] 5 SCC 403).
11. So far as due execution of Ext.A1 is concerned, I have gone through the evidence of P.Ws.1 to 3 and D.Ws.1 and
2. P.Ws.2 and 3, the witness and scribe of Ext.A1 gave evidence regarding its due execution. There is also the evidence of the respondent as P.W.1 in that regard. True that the appellant as D.W.1 denied execution of Ext.A1. But she admits the signature at the bottom of all the sheets of Ext.A1. The dispute has dwindled down to the signature that appears in between the writings on the last page of Ext.A1. The learned counsel submits that normally, one would sign above the name but in the last page of Ext.A1, in between the writings the disputed signature of the appellant is found below her name. It is also argued that the disputed signature does not bear resemblance with the admitted signatures at the bottom on various pages of Ext.A1.
12. I must notice that what is contended by the appellant in her written statement is that she gave a signed, blank, R.S.A. No. 1134 of 2009 -: 7 :- stamp paper. She did not even say that she had given signed blank papers also to the respondent. However in the box, she would admit that she has signed at the bottom of all the sheets of Ext.A1. It is difficult to accept the argument of the learned counsel for the appellant that the signature appearing in between the writings in n the last page of Ext.A1 alone is a fabricated one. Nor do I find any apparent dissimilarity between the disputed and admitted signatures.
13. So far as D.W.2 is concerned, it appears that he attempted to be too wise in the box. Though he is 'Gopalakrishnan Nair' he has stated his name in the deposition as 'Sivasankara Pillai'. True, signature of D.W.2 in his deposition does not bear resemblance with the disputed signature in Ext.A1. But post-litem signature cannot safely be made use of for comparison. Having regard to the above, I do not find reason to interfere with the finding of the of the courts below that Ext.A1 was duly executed by the appellant.
14. Then the question is whether Ext.A1 was intended to be an agreement for sale? According to the appellant, she had borrowed `20,000/- and as security for its due repayment, gave signed blank stamp paper. That, the contention of the appellant R.S.A. No. 1134 of 2009 -: 8 :- that she gave signed, blank, stamp paper is found against does not mean that the rest of the contentions she has raised must be rejected or disbelieved for that reason. I am to consider whether her contention that there was no agreement for sale and it was only a money transaction is to be accepted or not?
15. To decide that contention, it is necessary to look into the evidence. Plaint A schedule is 9 cents and a building purchased by the appellant as per Ext.A3, settlement deed dated 12.11.1998. Plaint B schedule is 11 cents purchased by the appellant as per Ext.A2, sale deed dated 16.10.1998. Exhibit A1, agreement is dated 20.01.1999, i.e., within a few months from Exts.A2 and A3. The time fixed in Ext.A1 for performance of the contract is seven months notwithstanding that according to the respondent, he had paid `27,000/- (out of total consideration of `50,000/-) to the appellant. When the respondent was questioned as to why such a long period was specified in the agreement for performance of the contract, he tried to explain away saying that the appellant wanted so much time to purchase some other property and settle herself. The respondent also admitted that the appellant and her family are residing in the building in the plaint A schedule. According to the appellant, the plaint A and B R.S.A. No. 1134 of 2009 -: 9 :- schedules are the only items of property belonging to her. That version of the appellant as D.W.1 appears to be correct in view of the version of the respondent as P.W.1 that the appellant wanted seven months' time to find out alternative accommodation and settle herself and family.
16. In such a situation, one is inclined to ponder for a moment, for what reason the appellant wanted to sell the plaint A and B schedules within a few months of her purchasing it? It is not as if the appellant was in search of a better place for her accommodation. Nor is it a case where the appellant was dissatisfied with the plaint schedule items so that she wanted to give up that property and purchase a better one. In such a situation when Ext.A1 agreement was executed on 20.1.1999 within a short period of Exts.A2 and A3 one has reason to think that the intention was not to convey right, title, interest or possession of plaint A and B schedules to the respondent.
17. Exhibit A2 and A3 are the original of document Nos.2308 and 2536 of 1998. Exhibit A4 is the original receipt for payment of revenue. According to the respondent, Exts.A2 to A4 were given to him at the time of execution of Ext.A1. If in fact the intention of parties was to execute a sale deed pursuant to R.S.A. No. 1134 of 2009 -: 10 :- Ext.A1, agreement within seven months as specified therein and on payment of the balance sale consideration, one is at a loss to find why the original documents (Exts.A2 to A4) were entrusted to the respondent even at the time of execution of Ext.A1. Normally, the original documents need by given to the respondent-purchaser only at the time the sale deed is executed pursuant to Ext.A1. That is what the Division Bench has pointed out in K.Bhaskaran Nair v. Habeeb Mohammed. In such a situation, handing over of the original documents (Exts.A2 to A4) to the respondent at the time of execution of Ext.A1 is a circumstance which indicate that that the transaction was not one for purchase of the suit property but a money transaction.
18. A further circumstance which corroborates that view is the evidence of the respondent as P.W.1 that he is residing about 12 kms away from the plaint A and B schedules and that he was not that much interested in purchasing the said properties. The learned counsel for the appellant would submit that the plaint B schedule has no road access. If that be so, it is not clear why the respondent has chosen to agree for purchase of the plaint B schedule. Nor is it shown that the respondent has any property adjoining or near to the plaint A and B schedules. It is R.S.A. No. 1134 of 2009 -: 11 :- difficult to think that about 12 kms away from his place of residence, the respondent thought of purchasing plaint A and B schedules in the circumstances stated above. These circumstances also support the contention of the appellant that the transaction was really one of loan and not one for sale of the property. I am inclined to think that Ext.A1 was executed merely as a security for the due repayment of the loan. In the circumstances, decisions in Narinderjit Singh v. North Star Estate Promoters Ltd and Prakash Chandra v. Narayan (([2012] 5 SCC 403) have no application to the facts of the case.
19. Then next question is what is the amount the appellant has availed by way of loan? True, according to the appellant, it is `20,000/-. But in the light of what is recited in Ext.A1 which I found is duly executed by the appellant, that contention cannot be accepted. Therefore I am inclined to hold that the appellant borrowed `27,000/- as loan from the respondent and executed Ext.A1 as a security for its repayment.
20. Learned counsel has invited my attention to the decision in Rattan Lal (since deceased) & Another v. S.N. Bhalla & Another (CDJ 2012 SC 535) where a substantial amount was awarded to the purchaser by way of R.S.A. No. 1134 of 2009 -: 12 :- compensation. That of course was a case where the agreement was accepted to be one for sale of the property but having regard to the delay involved compensation was awarded.
21. Though that principle as such is not applicable, I must notice the lapse of time from the date of Ext.A1 (20.1.1999). Money advanced by the respondent remained with the appellant. Though appellant has a contention that she has repaid Rs.4,500/-, there is no evidence in that line. Interest on the sum of `27,000/- at the rate of 12% per annum calculated from 20.1.1999 would come to around `45,300/-. That, along with the principle sum of `27,000/- comes to `72,300/-.
22. The respondent has been fighting the case from the year, 1999 onwards. He has to be compensated for that. I must also remember the fall in rupee value during the last 13 years. Having these aspects in mind, I am inclined to direct the appellant pay `1,25,000/- to the respondent being the principal amount borrowed, interest thereon as aforesaid and compensation for the loss suffered by the respondent.
23. The appellant will also be liable to pay interest at the rate of 9% on the sum of `27,000/- from this day until realization.
Resultantly, the Second Appeal is allowed in part as under: R.S.A. No. 1134 of 2009 -: 13 :-
In substitution of the judgment and decree of the learned First Additional District Judge in A.S. No.62of 2003 and of the learned Munsiff in O.S. No.415 of 1999, the respondent is given a decree as below:
(i) The respondent/plaintiff is allowed to realize `.1,25,000/- (Rupees One lakh and twenty five thousand only) with interest at the rate of 9% per annum on the sum of `27,000/-
(Rupees Twenty thousand only) from this day till realization from the appellant and her assets.
(ii) The respondent is allowed to realize from the appellant the costs awarded by the trial and first appellate courts.
(iii) It is made clear that plaint A and B schedules will bear a charge for the said amount.
(iv) On deposit of the amount due as per the decree of this court in the trial court, the appellant is permitted to take back Exts.A2 to A4. The trial court on deposit of the amount as R.S.A. No. 1134 of 2009 -: 14 :- directed above, shall order Ext.A1 to be superseded.
(v) Parties shall suffer their costs in this Second Appeal. Registry shall retransmit the records in the case to the trial court forthwith.
All pending Interlocutory Applications will stand dismissed.
THOMAS P. JOSEPH, JUDGE.
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