Kerala High Court
Achuthan Nair vs Peethambaran on 18 September, 2012
Author: A. V. Ramakrishna Pillai
Bench: Thottathil B.Radhakrishnan, A.V.Ramakrishna Pillai
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE THOTTATHIL B.RADHAKRISHNAN
&
THE HON'BLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI
TUESDAY, THE 18TH DAY OF SEPTEMBER 2012/27TH BHADRA 1934
RFA.No.816 of 2010 (D )
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(AGAINST THE JUDGMENT AND DECREE IN OS.200/2008 of II ADDL.SUB COURT,
THRISSUR)
APPELLANT(S)/DEFENDANT:
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ACHUTHAN NAIR, S/O.LATE MANNATH MADHAVI AMMA,
MULAYAM VILLAGE, DESOM,
THIRSSUR TALUK.
BY ADV. SRI.V.BINOY RAM.
RESPONDENT(S)/PLAINTIFF:
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PEETHAMBARAN,
S/O.NEDIYAMPARAMBAARATH AMMINI AMMA,
MANJAKUNNU DESOM, PEECHI VILLAGE,
THRISSUR TALUK.
BY ADVS.SRI.MATHEW JOHN (K),
SRI.DOMSON J.VATTAKUZHY.
THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 18-09-2012,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
THOTTATHIL B. RADHAKRISHNAN &
A. V. RAMAKRISHNA PILLAI, JJ.
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R.F.A No.816 of 2010
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Dated this the 18th day of September, 2012
JUDGMENT
Thottathil B. Radhakrishnan, J.
The defendant in a suit for specific performance of a contract for sale is the appellant. The suit stands decreed directing specific performance.
2. In this appeal, the learned counsel for the appellant argued that on the basis of the materials on record it ought to have been held that Ext.A1 agreement is a fabricated one and has been made out of papers which were initially blank signed papers obtained from the defendant, an elderly bachelor with challenged vision, living with his sister. It is argued that the court below ought to have exercised its discretion by refusing specific performance.
3. Per contra, the learned counsel for the respondent/plaintiff argued that the agreement has been proved by the evidence of the plaintiff as PW2 and a witness to that document as PW3 and that the defence RFA. No.816 of 2010. -:2:- version that the defendant had handed over one blank signed stamp paper and one blank printed paper with his signature, has been found against by the court below holding that there are two stamp papers in Ext.A1 agreement and that the signatures in the three sheets are similar. He pointed out that the case set up by the defendant that the amount of `1 lakh was obtained for the purpose of his treatment and of his sister, has also been found against on the basis of the evidence of DW1 himself and Exts.X1 and X2, through which it is shown that the amount received as advance, less `5,000/- was deposited in a Co-operative Bank. The denial of the agreement having been found against; and absence of defence as to receipt of part of consideration having been found, it is argued that there are no grounds to refuse specific performance. It is accordingly pointed out that the appeal deserves to be dismissed.
4. Having gone through the pleadings, in the light of the arguments advanced, we see that the defence is set up solely on the basis of the self serving testimony of DW1. He is a bachelor. He was 73 years of age at the time of executing Ext.A1. It is in evidence that he was a cook in Central Government service. The land in question is a garden land with RFA. No.816 of 2010. -:3:- no building with other structures. Though the plaintiff admitted in cross examination that he is a distant relative of the defendant, examining Ext.A1, we find that it is contract for sale and is not vitiated.
5. Not seeing the original of Ext.A3 among the lower court records, on our query, we are told that there was yet another suit for injunction filed by the plaintiff against the defendant on the strength of the subject contract for sale, seeking a decree of perpetual injunction against alienating the property to any other person. We are told that the said suit was decreed and the original of Ext.A3 was produced in that suit and that, it was therefore that, the certified copy of that agreement is obtained from that case and produced in this suit. That has been marked before the court below without any objection being raised in that regard. We also see by the endorsement that Ext.A1 is the copy issued from O.S.No.200/2008 filed before the Munsiff's Court, Thrissur.
6. On a comparison of the signatures in the three sheets of Ext.A1, the court below held that they are clearly, the signatures of the defendant. We see no ground on which that could be disputed. Such signatures occur in four places in Ext.A1. The first two pages are stamp papers. It is RFA. No.816 of 2010. -:4:- the third sheet which is in a printed form. The defendant, having pleaded and deposed that he had handed over "a" signed printed form and "a" signed stamp paper, we do not find any infirmity in the appreciation of the evidence by the court below as regards the due execution of Ext.A1 agreement. The testimony of the defendant is destructive of his plea; and, his plea and testimony have been rightly disbelieved by the court of first instance.
7. The court below has correctly appreciated the evidence in the proper perspective as regards the acceptance and application of the advance amount. On a preponderance of probabilities, the court below was justified, on the facts and in the circumstances of the case, in not accepting the defence that the amount was received only to support the medical treatment of the defendant and his sister.
8. This takes us to the question whether, the court below has exercised its jurisdiction in terms of the provisions of Specific Relief Act, properly. The suit agreement is dated 02/08/2007. Suit notice, Ext.A2 was issued on 08/11/2007. In spite of acknowledging to that, the defendant did not respond to it, whatever may be the reason. The suit RFA. No.816 of 2010. -:5:- was laid on 12/02/2008. It stands decreed on 30/01/2010. There is no legal evidence to hold that there was any disparity in the land value fixed for the sale. The agreement is for sale on the basis of the rate fixed per cent. The total extent is also mentioned in the agreement, which requires the parties, to initially carry out the measurement before the sale deed is executed. No circumstances which would get eminence, priority or precedence in favour of the vendor, in terms of the provisions of the Specific Relief Act, have been pointed out before the court below or before us. Hence, we do not find any ground to hold that the court below erred on facts or in law in the matter of exercising jurisdiction or discretion in granting specific performance.
9. For the aforesaid reasons, this appeal fails.
In the result, the appeal is dismissed. No costs.
Sd/-
THOTTATHIL B. RADHAKRISHNAN JUDGE Sd/-
A. V. RAMAKRISHNA PILLAI
JUDGE
//TRUE COPY// P.A TO JUDGE
krj