Karnataka High Court
M S Munithayamma vs Kathali Palyada Laxmamma on 17 April, 2013
Author: Aravind Kumar
Bench: Aravind Kumar
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 17TH DAY OF APRIL, 2013
BEFORE
THE HON'BLE MR.JUSTICE ARAVIND KUMAR
R.F.A.NO.1235/2003
BETWEEN:
M.S.Munithayamma
Since dead represented by her
Legal representatives:
a) Padmashri
aged about 65 years,
b) Shylaja
aged about 60 years,
Both residing at Kasaba Hobli,
Mathikere Village,
Bangalore North Taluk,
Bangalore. ..APPELLANTS
(By Sri.Ajay Govindraj, Advocate)
AND:
Kathali Palyada Laxmamma
Since dead represented by her
Legal representative:
2
a) Muniraju
father's name not known
to the appellants,
Major,
r/at M.Muniyamma Building,
No.581, I Main Road,
Mathikere,
Bangalore - 560 054. ..RESPONDENT
(By Sri.V.Tarakaram, Senior Counsel and Sri.N.Bayya Reddy,
Advocate)
This RFA is filed under section 96 of CPC against the
Judgment and decree dated 05.07.2003 passed in
O.S.3810/1983 on the file of the XXXI Additional City Civil
Judge, Bangalore, (CCCH-11), dismissing the suit for specific
performance.
This RFA coming on for final hearing this day, the Court
delivered the following:
JUDGMENT
This is a plaintiffs appeal questioning the correctness and legality of the judgment and decree passed by XXXI Additional City Civil Judge, Bangalore in O.S.3810/1983 3 dated 05.07.2003 whereunder plaintiff suit for specific performance has been dismissed.
Alas! 43 years have lapsed. Sale deeds in respect of suit schedule property have been executed in the year 1968. Plaintiff under an alleged deed of agreement to sell and claiming it to be an agreement of reconveyance had filed the suit O.S.3810/1983 on 15.12.1983. And still the parties are litigating in respect of said property and the present lis is still at the stage of first appeal and which is also pending before this court for the past 11 years and has now seen the light of the day.
2. I have heard the arguments of Sri.Ajay Govindraj, learned counsel appearing for appellants/plaintiffs and Sri.V.Tarakaram, learned Senior counsel appearing on behalf of Sri.Bayya Reddy for respondent. Perused the judgment and decree passed by trial court as also records secured from 4 the trial court. Parties are referred to as per their rank in trial court.
3. Plaintiff filed a suit for specific performance of agreement of sale dated 16.12.1968 contending that the defendant had executed the said agreement in favour of Sri.Mayanna and Smt.Munithayamma agreeing to "RE- CONVEY" the property bearing No.Nil measuring east to west 41 feet and north to south 118 feet situated at Mathikere village (hereinafter referred to as suit schedule property) for a consideration of `9,500/-. It was interalia contended that suit property was originally acquired by Sri.Mayanna under a partition between himself and his brother Sri.Thimmappa and had sold the said property in favour of Smt.Sakamma under a registered sale deed dated 29.09.1965 and it was only a nominal sale deed and thereafter said Smt.Sakamma had sold the suit property to defendant under a registered sale deed dated 16.12.1968 for a consideration of `3,000/-; plaintiff's husband late Sri.Mayanna had executed a nominal sale deed 5 in favour of Smt.Sakamma in respect of suit schedule property to meet some urgency by raising money. Hence, defendant who obtained the sale deeds from her vendor in respect of the suit schedule property were only nominal sale deeds and as such she never became owner of the suit property under the aforesaid circumstances; it was contended that defendant had executed an agreement of sale dated 16.12.1968 above referred to in favour of Mayanna and time stipulated for recovering suit property under the said agreement was 15 years from the date of agreement i.e., 15 years from 16.12.68 and said agreement came to be executed on the same day when defendant purchased entire suit schedule property from Smt.Sakamma under a registered sale deed dated 16.12.68; On the demise of Sri.Mayanna on 02.09.1980 plaintiff became sole surviving legal heir and being a party to the said agreement of sale she contended that she was ready and willing to perform her part of the contract arising under the said agreement and despite repeated requests to defendant to execute sale deed in respect 6 of suit schedule property by receiving sale consideration of `9,500/- defendant had been evading to execute the same; though she has been always ready and willing to perform her part of the contract of sale and in view of defendant not complying with the demand of plaintiff and since defendant has been evading to perform her part of the agreement with an ulterior motive of making wrongful gain to herself and cause wrongful loss to plaintiff she filed suit in question praying for judgment and decree to direct the defendant to execute the sale deed in favour of plaintiff pursuant to agreement of sale dated 16.12.1968 by receiving a sum of `9,500/- as agreed thereto and on her failure to do so sale deed be executed through the process of court and also sought for enquiry into future mesne profits in respect of suit schedule property and for a decree to put plaintiff in possession of suit schedule property.
4. On service of suit summons defendant appeared and filed her written statement. It was contended by defendant 7 that she purchased the entire suit schedule property belonging to Smt.Sakamma under registered sale deeds for valuable consideration and after sale in her favour she has spent lots of money and put up new construction in the suit schedule property about 8 to 10 years back and had also made extensive repairs to the house which was existing in the suit schedule property. It was contended by her that sale transaction between Sri.Mayanna and Smt.Sakamma and between Smt.Sakamma and her were not nominal sale transactions as contended but they were genuine, valid and lawful sale transactions for valuable consideration; she contended that she has not entered into any agreement with the plaintiff and late Sri.Mayanna to sell suit schedule property that too for a sale consideration of `9,500/- within a period of 15 years from 16.12.1968 as contended; It was also contended that said agreement was a got up document for the purpose of the case and left thumb mark found in said agreement is not her left thumb mark; She contended that there was absolutely no necessity for her to sell suit schedule 8 property to Sri.Mayanna and plaintiff and alleged agreement dated 16.12.68 is one sided and there is no mutuality between the contracting parties to the said agreement; She has not received any amount from late Sri.Mayanna and plaintiff pursuant to the alleged agreement dated 16.12.68; she is not a fool and devoid of common sense to enter into an unconscionable agreement i.e., the alleged agreement dated 16.12.68 agreeing to sell the suit property at any time to Mayanna and plaintiff within 15 years without receiving even a paise on the date of the alleged agreement. Said agreement dated 16.12.68 is manufactured by the plaintiff and her supporters with a malafide intention to cause wrongful loss to defendant and make illegal gain for herself and her supporters; execution of alleged deed of reconveyance dated 16.12.68 in favour of late Sri.Mayanna and plaintiff was denied; she contended that she would not have put up new construction after the sales in her favour if she had really executed the alleged agreement of sale dated 16.12.68 in favour of late Sri.Mayanna and the plaintiff; plaintiff never 9 approached defendant for performance of alleged agreement and never offered `9,500/- to defendant; on the grounds of law and equity defendant was not liable to comply with the illegal, unconscionable and inequitable demand of the plaintiff. Without conceding to the claim of the plaintiff she contended that if the relief prayed for in the plaint is granted, irreparable loss and injury would be caused to her and further for the detailed reasons assigned in the written statement it is not a fit case either in law or on facts to grant a decree for specific performance; there is no cause of action for the suit. All the averments made in the plaint came to be denied. Accordingly she sought for dismissal of the suit.
5. On the basis of the pleadings of the parties, trial court framed following issues for its adjudication:
"1. Whether the plaintiff proves that the defendant executed an agreement of sale dated 16.12.1968 in her favour and her husband to reconvey the suit property for `9,500/-?10
2. Whether the plaintiff is entitled for future mesne profits?
3. Whether the plaintiff is entitled for possession of the suit property?
4. Whether the plaintiff proves that she was ready and willing to perform her part of the Contract?
5. What relief or order?"
6. Plaintiff got herself examined as PW-1 and in all produced seven documents and got it marked as Exhibits P-1 to P-7. Defendant got herself examined as DW-1 and produced two documents and got it marked as Exhibits D-1 and D-2. On account of execution of agreement of sale having been denied and contended as fabricated, forged an interlocutory application came to be filed by plaintiff under Order XXVI Rule 10A of C.P.C (I.A.No.5). Said application came to be resisted by defendant. Trial court after 11 considering rival contentions by its order dated 03.11.99 allowed the said application and referred the matter to Finger Print expert for comparison of the admitted thumb impression of the deceased defendant as found in the Vakalathnama and other available documents to be compared with the disputed thumb impression found in Exhibit P-7 namely agreement of sale/reconveyance. Accordingly the matter was referred to Finger Print Bureau and a report came to be filed by the Finger Print Bureau. On behalf of plaintiff the expert who had examined the admitted and disputed thumb impression was examined as CW-1 and through him Exhibits C-1 to C-7 came to be marked. On evaluation of entire evidence tendered by the parties trial court by its judgment and decree dated 05.07.2003 dismissed the suit which is now assailed in the present appeal by plaintiffs.
7. It is the contention of Sri.Ajay Govindraj that judgment and decree passed by the trial court is contrary to facts and records. He contends that trial court erred in 12 not examining the basic question namely that documents of title deeds relied upon by the defendant was truly sham and nominal documents and as to whether they were initially executed with a view of securing money advanced by deceased Mayanna and contends that trial court has failed to consider the true and proper nature of the transactions between parties and as such the conclusion arrived at by the trial court to dismiss the suit is based on erroneous appreciation of facts and evidence. He contends that issues framed by the court below being inappropriate it does not touch the controversies which has arisen as could be seen from the pleadings and in this regard he contends that first sale deed executed by Mayanna in favour of Smt.Sakamma was for a consideration of `5,000/- while the second sale deed executed by said Smt.Sakamma in favour of defendant was for a consideration of `3,000/- which itself clearly disclose that both these documents were nominal and he further contends that trial court ought to have noted that 13 Smt.Laxmamma was a nominal purchaser under sale deed dated 16.12.68 and as such defendant executed an agreement of sale on the very same day in favour of Sri.Mayanna and plaintiff for a sum of `9,500/- which has been lost sight of by trial court. He further contends that agreement of sale or reconveyance deed Ex.P7 and sale- deed Ex.P4 between Sakamma and Lakshmma (defendant) came into existence on the same day i.e., on 16.12.1968 and this vital aspect has not been taken note of by the trial court. He further contends that trial court ought to have noted the time stipulated under the agreement for reconveyance was 15 years which itself would indicate that sale transactions were nominal and documents executed was by way of security and vendors did not intend to convey right, title in the suit property. He would further contend that finding of trial court that sale deeds does not disclose anything regarding reconveyance and hence the claim of plaintiff that these deeds were nominal cannot be accepted is erroneous since the very recitals in the 14 agreement of sale would indicate that sale-deeds executed were nominal. It is his further contention that trial court ought to have noticed that said nominal deeds were in fact mortgage deed executed by way of security for repayment of loan and as such the finding of the trial court contrary to same is liable to be set aside. He further contends that trial court finding that agreement of sale if not registered cannot be acted upon is erroneous, since agreement of sale is not required to be registered compulsorily under Indian Registration Act, 1908. He would further contend that trial court committed a serious error in ignoring the expert opinion which in unequivocal terms establish that thumb impression found on the agreement of sale dated 16.12.68 is that of the defendant and this evidence has been erroneously discarded and as such finding of the trial court requires to be reversed, set aside and appeal to be allowed. He would further elaborate his submission in this regard to contend that it was inappropriate for the trial court to embark upon comparing the thumb impression by 15 itself discarding the expert's opinion. He would contend that on these grounds judgment and decree passed by trial court is erroneous, contrary to facts and records as also evidence tendered by parties and as such liable to be set aside. In support of his submission Sri.Ajay Govindraj has relied upon the following judgment:
AIR 1979 SC 1708 - Jaspal Singh Vs State of Punjab
8. Per contra Sri.Tarakaram, learned senior counsel appearing for respondent would support the Judgment and decree passed by trial court and contends that trial court on appreciation of entire evidence available on record found that there was no agreement entered into between defendant and plaintiff as well as deceased Sri.Mayanna and said finding is based on proper appreciation of evidence tendered by the parties. He would also contend that expert opinion by itself is not sufficient to decree the suit or accept the document propounded by a party and it would be one of the factors which would be in favour of party so producing it and until 16 and unless it is corroborated by other evidence such document cannot be accepted at its face value or the opinion issued thereon. He would also contend that trial court having noticed that sale deed executed by Smt.Sakamma in favour of Smt.Laxmamma is a outright sale and there was no recital in the sale deeds as being nominal sale deed or otherwise, question of suit being decreed in favour of plaintiff was not called for and as such trial court has rightly refused to exercise discretion vested in it. He would further elaborate his submission by contending that trial court has noticed that defendant had purchased the suit schedule property under two sale deeds namely 09.11.66 and 16.12.68 and alleged agreement of sale had come into existence only when the second sale deed came into existence i.e., 16.12.68 and as such it has held that said document i.e., Agreement of sale is shrouded with suspicion and recitals found therein cannot be accepted and contends said finding is based on sound appreciation of evidence and does not call for interference by this Court. He would also contend that expert opinion given 17 is one of the factors which would tilt in favour of a person producing such document and in the instant case undisputedly the document in question which has been referred for expert opinion had been lost and what was examined by court commissioner or expert was a photo copy and not the original and on that ground alone expert opinion is liable to be discarded. Even otherwise by way of alternate submission he would contend that plaintiff having utterly failed to corroborate the alleged agreement of sale by tendering independent evidence, trial court has rightly refused to exercise its discretionary power to grant a decree for specific performance. He would further contend that appeal in question is not maintainable since the legal heirs of the deceased plaintiff who have sought to come on record are her sisters and they would not be entitled to maintain the appeal. He would elaborate his submission by contending that agreement of sale produced by plaintiff does not contain the seal of the Treasury and as such the authenticity and originality of the said document itself is in doubt and this 18 factor came to be considered by trial court and was accepted, rightly so, to disbelieve the agreement of sale and as such he contends that there is no merit in the appeal which calls for interference at the hands of this court and hence, he prays for dismissal of the appeal. In support of his submission he has relied upon the following Judgments:
1. (1977) 2 SCC 210 - Magan Bihari Lal Vs The State of Punjab
2. (2008) 4 SCC 530 = AIR 2008 SC 1541 - Thiruvengadam Pillai Vs Navaneethammal and anr
3. AIR 1965 SC 1405 - Mademsetty Satyanarayana Vs G.Yelloji Rao and others
4. (1990) 3 SCC 1 - Mayawanti Vs Kaushalya Devi
5. AIR 2006 A.P.314 - Bheri Nageswara Rao Vs Mavuri Veerabhadra Rao
6. (2009) 9 SCC 709 - Ramesh Chandra Agrawal Vs Regency Hospital Limited and others
7. 1967 AIR 778 - State of Gujarat Vs Vinaya Chandra Chhota Lal Patni 19 FINDINGS RECORDED BY THE TRIAL COURT:
9. Trial court on appreciation of evidence as noticed herein above has dismissed the suit and briefly the grounds on which it came to be dismissed can be noted as under:-
(i) Sale deed executed by Sri.Mayanna in favour of Smt.Sakamma dated 29.09.1965 Exhibit P-2 is a outright sale deed and there is no whisper with regard to reconveyance.
(ii) Sale deeds executed by Smt.Sakamma in favour of Smt.Laxmamma on 09.11.66 and 16.12.68 Exhibit P-
3 and P-4 are also out right sale deeds. Exhibits P-2 and P-3 does not contain any recital that they are reconveyance deed or mortgage deed.
(iii) Plaintiff has failed to prove that Sri.Mayanna had sold the property to Smt.Sakamma and she in turn sold it to Smt.Laxmamma as a conditional sale deed 20 and with a condition to reconvey or the sale deeds were nominal not intended to convey any title.
(iv) Sale deeds Exhibits P-2 to P-4 would indicate consideration reflected is `5,000/- whereas Exhibit P- 7 speaks of defendant had agreed to pay a sum `9,500/- to plaintiff and her husband. If, it was a conditional sale or a mortgage deed as contended then consideration amount ought to have been the same inasmuch as possession of suit schedule property was with the defendant and she was enjoying the property.
(v) Though Sri.Mayanna was aware that Smt.Sakamma was selling the suit schedule property and if he really wanted Smt.Sakamma to receive the mortgage amount and hand over possession of the mortgaged property on the day on which Smt.Sakamma was executing sale deed in favour of Smt.Laxmamma, nothing prevented said Sri.Mayanna 21 or plaintiff to obtain sale deed directly from Smt.Sakamma herself by paying said amount to her directly and preventing her from executing any sale deed in favour of Smt.Laxmamma. However, this was not done and as such plea of the plaintiff is not even in the vicinity of acceptance.
(vi) If plaintiff or plaintiff's husband was ready to pay alleged mortgaged amount in the year 1968 itself to Smt.Sakamma nothing prevented them from getting sale deed registered in their favour in the year 1968 itself from Smt.Sakamma and no person of ordinary prudence would keep quite or allow his/her property being sold to a third person instead of obtaining reconveyance once in their favour.
(vii) If the plaintiff or her husband was ready to pay the amount in the year 1968 itself and were eager to get back the property during that point of time there was no necessity to agree for obtaining the sale deed 22 within 15 years from said date and this creates a cloud over the claim of plaintiff.
(viii) The witnesses to the two documents namely Exhibit P-4 and P-7 are different and as such Exhibit P-7 requires to be examined with utmost circumspection.
(ix) There was no treasury seal on Exhibit P-7 to believe that it was released from the Treasury and as such said agreement is doubtful.
(x) Original agreement Exhibit P-7 was lost by the Finger Print Expert and on account of lack of corroboration by independent evidence the trustworthiness of CW-1 gives rise for doubt and it was admitted by CW-1 that middle part of thumb examined by him was smudged as seen from naked eye though CW-1 denied the same.
23On these grounds amongst others as enumerated in the judgment and decree assailed herein trial court dismissed the suit.
10. Having heard the learned advocates appearing for the parties and on perusal of the Judgment and decree passed by the trial court as also on reappreciation of entire evidence tendered by parties before trial court I am of the considered view that following points arise for my consideration:
"1. Whether trial court was justified in arriving at a conclusion that Ex.P2 was not a conditional sale deed executed by plaintiff's husband in favour of Smt.Sakamma as also sale deed Exs.P3, P4 executed by Smt.Sakamma in favour of defendant and it also cannot be construed as mortgage deeds?
2. Whether trial court was justified in disbelieving Exhibit P-7?24
3. Whether the Judgment and decree passed by trial court in O.S.3810/1983 dated 05.07.2003 suffers from any infirmities either on facts or in law and whether there has been any improper appreciation of evidence or non appreciation of material evidence available on record calling for interference by this court?
4. What order?"
FACTUAL MATRIX:
11. Suit schedule property originally belonged to one Sri.Mayanna, who is the husband of plaintiff. He acquired title to the said property under a partition dated 17.06.1963 that took place in their family i.e., between Sri.Mayanna and his brother Sri.Thimmappa and he having acquired title to the suit schedule property under the said partition, became absolute owner. Said partition deed dated 17.06.1963 has been produced before the trial court and same was marked 25 as Exhibit P-1. Both the parties to the suit are at ad idem on this aspect and there is no dispute. Subsequent to the acquisition of ownership of suit schedule property said Sri.Mayanna was exercising his right, title and interest and it was in his possession. It was sold by him on 29.09.65 for total consideration of `5,000/- in favour of Smt.Sakamma and certified copy of said sale deed was also produced by plaintiff before the trial court and it was marked as Exhibit P-
2. Said Smt.Sakamma subsequently has sold the suit schedule property to the defendant herein under two sale deeds namely under sale-deeds dt: 09.11.66 and 16.12.68 for a total consideration of `2,000/- and `3,000/- respectively which documents also came to be produced namely certified copies of those sale deeds and it was marked as Exhibits P-3 and P-4 respectively.
RE: POINT NO.1:
12. It would be appropriate to note the pleadings of the parties at this juncture itself namely the plea putforth by the 26 plaintiff in the suit particularly at paragraph 3. Plaintiff has naratted as to how Sri.Mayanna acquired title and he having sold the same to Smt.Sakamma in the year 1965. Plaintiff has not stated or contended that said Smt.Sakamma has sold the suit schedule property to Smt.Laxmamma under two sale deeds namely Exhibits P-3 and P-4 which is the factual aspect. In otherwords plaintiff was completely in dusk about the sale deed executed by Sakamma in favour of defendant on 09.11.1966 as per Ex.P3. There is no plea with regard to this. What has been referred to in paragraph 3 of the plaint is sale deed dated 16.12.68 namely Exhibit P-4 only.
However, it has been contended that sale deeds were nominal sale deeds. Plaintiff has further contended in paragraph 4 that defendant executed an agreement of sale on 16.12.68 in favour of plaintiff and her husband late Sri.Mayanna agreeing to reconvey the suit schedule property in their favour after agreeing to receive consideration of `9,500/-. However, plaintiff in her evidence has stated that Smt.Sakamma had sold the suit schedule property in favour of defendant 27 Smt.Laxmamma under two sale deeds namely Exhibits P-3 and P-4. Thus, she has tried to improvise her case than what has been pleaded in the plaint.
13. Plaintiff has contended that transactions of 29.09.65 and 16.12.68 as per Exhibit P-2 and P-4 are conditional sale deeds. It has also been contended that to meet some urgency plaintiff's husband Sri.Mayanna executed the nominal sale deed in respect of suit schedule property in favour of Smt.Sakamma. She does not state that suit schedule property had been mortgaged by deceased Sri.Mayanna in favour of Smt.Sakamma as stated in her evidence. She has contended in her deposition to the following effect:
"My husband mortgaged this property in favour of Smt.Sakamma, W/o Munivenkatappa for a mortgage amount of `5,000/- in 1965. A document was reduced to writing. The original deed is with that Smt.Sakamma. Therefore, I have obtained the certified copy. Ex.P.2 is the certified copy of the said 28 document. Thereafter, defendant has purchased the suit property from that Sakamma".
14. At the outset it requires to be noticed that it is the specific case of the plaintiff herself that sale deed dt:29.09.1965 Ex.P2 was a nominal sale as per the pleadings. However, in her evidence she has stated that suit schedule property was mortgaged by her husband in favour of Smt.Sakamma for an amount of Rs.5,000/-. Thus, inconsistency in plaintiff's evidence is at large. When plaintiff has contended that transaction between her husband Sri.Mayanna and Smt.Sakamma was that of a mortgagor and mortgagee, it was required to be proved by her to the hilt that said transaction was Mortgage and it was not an outright sale. However, recitals in Exhibit P-2 would clearly indicate that it was a out and out sale of suit schedule property by Sri.Mayanna in favour of Smt.Sakamma. If it was a case of conditional sale or if the parties were under the impression that said Smt.Sakamma had to execute the sale deed in 29 favour of deceased Sri.Mayanna after receiving both the consideration amount she had paid to Mayanna then natural course of event that would have taken place is an agreement of reconveyance would have come into existence on that very date itself i.e., in the year 1965 when he sold suit property to Sakamma. Undisputedly there is no such agreement of sale or reconveyance executed by Smt.Sakamma in favour of deceased Sri.Mayanna or plaintiff. This is the first stage where the doubt with regard to plaintiff's claim arises. The recitals in a registered document would prevail over any other plea that is put forward in view of Section 92 of Evidence Act. As such contention of the plaintiff that sale deed executed by Sri.Mayanna in favour of Smt.Sakamma on 29.09.65 as per Exhibit P-2 is a conditional sale deed cannot be accepted and it is to be examined with utmost circumspection.
15. After the suit schedule property was purchased by Smt.Sakamma on 29.09.1965 under Exhibit P-2 she has sold it in two bits in favour of Smt.Laxmamma under two sale 30 deed namely dated 09.11.66 for a consideration of `2,000/- as per Exhibit P-3 and another under sale deed dated 16.12.68 for a consideration of `3,000/- as per Exhibit P-4. Thus, between Exhibit P-3 and P-4 there is a time gap of two years. In the background of this documentary evidence available on record let me examine as to whether the contention of the plaintiff that the sale deeds executed by Smt.Sakamma in favour of Smt.Laxmamma are to be construed as a nominal or conditional sale or not. In this regard oral evidence of the parties requires to be examined in the backdrop of pleadings.
16. Plaintiff having reiterated the contentions raised in the plaint has denied the suggestion that her husband sold the entire property in favour of Smt.Sakamma on 29.09.1965 under Exhibit P-2. She herself has produced Exhibit P-3 namely sale deed dated 09.11.1966 and has gone to the extent of denying the suggestion that Smt.Sakamma sold only a portion of suit schedule property in favour of defendant 31 under said document Ex.P3. She has also denied the suggestion that Sakamma sold remaining portion in favour of defendant under sale deed dt: 16.12.1968 Exhibit P-4. She also admits that on the day Sakamma executed sale deed as per Exhibit P-4 i.e., on 16.12.1968, she was present in the office of the Sub Registrar. Her admission in cross examination dated 24.09.1991 reads to the following effect:
"I had been to the office of the Sub-Registrar on 16.12.1968. Mr. Thimmaiah, Seetharamaiah and my husband also had come to the office of Sub- Registrar on that day. We went to the office of Sub-Registrar at about 3 or 3.15 p.m. Sakamma and Lakshmamma were already present there. I do not know who had purchased the stamp paper and from whom, for the sale deed in favour of Lakshmamma-defendant. Nanjundaiah is the scribe of that sale deed. We questioned Sakamma. Sakamma told us that, she was not selling the property, that, she has raised only a loan and we can pay loan amount and get the sale deed from Lakshmamma."
(Emphasis supplied) 32 Again in her cross-examination dated 16.11.1992 P.W.1 admits that she was present in the office of the Sub-Registrar on 16.12.1968 and her admission is to the following effect;
"Exhibit P-7 is xxxxxxxxxxxxx Sub Registrar's Office. Myself and my husband along with my brother-in-law Thimmaiah went to the Sub- Registrar's office and Seetharamaih, Sakamma was present in the sub registrar's office. He asked Sakamma why she was going to sell away the property mortgaged to her. We also told Sakamma to receive the mortgaged amount and hand over possession of the mortgaged property. Sakamma told that she was not selling the property but she was in need of some money and for security purpose and that previously also she has taken loan on the security on the mortgaged property. She further told that if we would repay all Lakshmamma (the defendant) then we could take back the mortgaged property. I asked Lakshmamma to pay back the amount and handover the possession of the mortgaged property. Lakshmamma told that if you would pay some more amount she would receive the amount and ready to give possession of the mortgaged proerty."
(Emphasis supplied) This admission would clearly indicate that plaintiff was present at the office of sub-registrar at the time of execution of Ex.P4 and she was knowing that only a portion of suit 33 property was being sold or in other words she knew that other portion of suit property was not being sold or has already been sold. Pleadings and evidence on this aspect is silent. If plaintiff and her husband intended to get the mortgage redeemed as contended they would have taken steps at the first instance itself namely when Sakamma sold portion of suit property to defendant on 09.11.1966 under Ex.P4 itself. There is not even a whisper in the pleading with regard to Ex.P4.
17. It has also been contended by plaintiff that Mayanna and herself had money i.e., Rs.5,000/- with them in 1968. Accepting the contention of plaintiff for a moment that deceased Mayanna and plaintiff were having an amount of ` 5,000/- as on 16.12.1968, nothing prevented them from taking reasonable steps as expected of a prudent person to get the mortgage redeemed by repaying the said mortgage amount to defendant and asking her to execute the sale deed, if the earlier transaction was a conditional sale as contended. 34 Plaintiff did not take any steps in this regard. In fact in cross- examination dated 24.09.1991 P.W.1 admits that they have not taken any steps to redeem the said mortgage. This is not the normal human conduct. Even otherwise, if really, it was a conditional sale deed executed by Sri.Mayanna in favour of Smt.Lakshmamma, as already noticed hereinabove, deed of reconveyance would have come into existence on the day he sold the property in favour of Smt.Sakamma i.e., on 29.09.1965 itself or in the alternate atleast reconveyance would have come into existence when Smt.Sakamma sold the first bit of property in favour of Smt.Lakshmamma on 09.11.1966 as per Exhibit P-3. Neither of these events have taken place. However, it has been contended that Village Panchayatdars had decided that Smt.Lakshmamma should be paid a sum of ` 9,500/- when Ex.P4 came into existence by Sri.Mayanna and plaintiff, and as such, deed of reconveyance came into existence on 16.12.1968. The plea that has been put forward in the plaint with regard to conditional sale as reiterated by P.W.1 in her oral evidence as 35 extracted hereinabove at the cost of repetition it is to be noticed that same has to be examined with utmost circumspection, inasmuch as neither the witnesses to sale deed Exhibit P-4 nor witnesses to sale deed Exhibit P-2 have been examined by plaintiff to substantiate the contention that it was a conditional sale and it was not outright sale entered into between the parties. In fact plaintiff could have examined the said Smt.Sakamma herself in whose favour suit schedule property was originally sold on 29.09.1965 as per Exhibit P-2 to establish that it was a conditional sale. There is no plea in this regard about her being alive or dead and even assuming that she was dead as on the date of instituting the suit or when plaintiff tendered her evidence, her legal heirs could have been examined and non-examination of these witnesses would naturally be fatal to plaintiff's claim.
18. The Hon'ble Apex Court in the case of S.V.R.MUDALIAR (DEAD) BY LRS AND OTHERS VS. MRS. RAJABU F. BUHARI (DEAD) BY LRS AND OTHERS reported 36 in AIR 1995 SC 1607, was examining as to the circumstances which warrant the acceptability of a genuineness of documents particularly when two sale deeds have come into existence along with a deed of reconveyance. It has been held to the following effect;
" 6. As to why in Ex. P2, 3 and 15 no mention was made about P1, has been sufficiently explained by PW2 (the plaintiff) in his evidence, whose purpose is that Shri Rangachari who had played a vital role in the entire episode, had advised accordingly. The advisor both to the plaintiff and Mr.Buhari. ON PW 2 being specifically asked as to why Ex. P2 and P3 did not contain the recital about reconveyance, his answer was:
"I wanted it to be included in the sale deed. Rangachari told me that the gentleman's agreement is binding on Mr. Buhari to reconvey the property and so need not be included in the sale deed."
8. The case of he plaintiff in this regard receives support from Ex. P. 28 which is a letter from the plaintiff to Mr. Buhari, dated 1st Feb, 1961, which mentions about the understanding in question. Though the Division Bench of the High Court has held that Ex. P.28, is also a fabricated document, we find ourselves unable to agree with it on this point. There is some force in the case of the plaintiff that the defendants challenged about the understanding in question after the death of Rangachari. 37
9. According to us, therefore, it would not be correct to doubt the existence of P1 because of non-mentioning about any stipulation to reconvey in Exs.P2 and 3 and for that matter Ex.P15 having not mentioned about it; nor do the questions raised by Shri Salve take away the ring of truth, the plaintiff's case has in this regard. So, we hold that P. 1 is a genuine document, as opined by the trial Judge.
18. We, therefore, conclude that there did exist an understanding to reconvey two properties as recorded in the document executed on 24-3-59. This conclusion of ours receives support from reconveyance of 'Serles Garden' within the period of 3 years as stipulated in Ex.P.1 and that too at the added 'solatium of 10%. This property having been sold at Rs.85,000/- 10% of the same comes to Rs.8,500/- and Ex. P.15 evidence the sale at Rs.95,000/-. Though it is correct that Rs.85,000/- and 10% of that comes to Rs.93,500/- it may as well be that this figure was rounded to Rs.95,000/-. In this context Shri Vaidyanathan's submission, however, is that 'Serles Garden' was sold back, not pursuant to the agreement to reconvey, but because Mrs. Buhari could not get a lessee despite advertisement having been put in 'The Hindu' and The Mail', as evidenced by Exs. D1 to D4. Though this contention has some cutting edge, we were inclined to think, on the totality of facts, that the transfer of Serles Garden back to the plaintiff was in discharge of the legal obligation contained in P1, as both the period during which it was transferred and for 38 the sum it was so done, fit in well with the terms embodied in P1."
19. In the said case it was noticed that though sale deeds did not contain any stipulation about reconveyance, it was held that absence of time stipulation in sale deeds had been explained by the seller as per advise given by the legal advisor and subsequent letter written by seller to the purchaser corroborated the execution of reconveyance deed and as such, it came to be accepted.
20. On facts on hand trial court has examined these aspects at paragraphs 9, 10, 11, 12 to arrive at a conclusion that there was no agreement between the parties and sale deeds Ex.P2 to Ex.P4 are not conditional sale deeds. One another fact which requires to be noticed at this juncture itself is that under Exhibit P-4 the consideration amount that was paid by Smt Lakshmamma to Smt Sakamma was ` 3,000/- which relates to a portion of suit schedule property. The other portion had already been sold in favour of Lakshmamma by the very said Smt Sakamma on 09.11.1966 39 under Exhibit P-3 for a consideration of Rs.2,000/-. Thus, total consideration was of ` 5,000/-. Under these two sale deeds Smt Sakamma had sold the suit property in favor of Smt Lakshmamma for necessity and if her necessity was to the extent of ` 5,000/-, then nothing prevented plaintiff or deceased Mayanna to pay the very same consideration to Smt.Sakamaa and get the sale deeds executed in their favour, since P.W.1 has admitted that on 16.12.1968 when they went to the office of Sub-Registrar ` 5000/- was available with her and which is said to have been offered by them to Smt.Sakamma. If Smt.Sakamma can receive ` 3000/- from Smt.Lakshmamma on 16.12.1968 to convey portion of suit schedule property in her favour she would not have declined the offer of PW.1 and her husband. This has not been done. This would have been the usual human conduct, which would have taken place in the normal course. It is the 2nd stage which creates a doubt regarding reconveyance deed Ex.P7 which creates a doubt about plaintiff's claim with regard to sale deeds in question being a conditional sale deed 40 and as such, evidence on record would clearly indicate that claim of plaintiff that Sri.Mayanna executed a conditional sale deed in favour of Smt.Sakamma and inturn Smt Sakamma also executed conditional sale deeds and in favour of Smt Lakshmamma cannot be accepted. Such a plea is contrary to both oral and documentary evidence available on record. As such point No.1 formulated hereinabove requires to be answered against plaintiff and in favour of defendant. Trial court has analysed this aspect in detail in its judgment as under:
"12. P.W.1 was recalled on 16.11.1992 and further in chief deposed, that one Muniyanna who is the neighbour of Sakamma told her that Sakamma is going to sell away the mortgaged property and she is in Sub-Registrar's office. Hearing that information, the plaintiff and her husband along with Thimmaiah went to Sub-Registrar's office. Sakamma was present in Sub-Registrar's office. Her husband questioned to Sakamma when you 41 are going to sell away the property mortgaged to her. Further, her husband told Sakamma to receive the mortgaged amount and handover possession of the mortgaged property. It means, on the date of execution of Sale deed by Sakamma the plaintiffs were ready to pay the mortgage amount. If the sale deed executed in favour of Sakamma was really Mortgage Deed or Conditional Sale deed, she could not have refused for reconveying or taking the consideration amount from the plaintiffs. Further P.W.1 states Sakamma told that she was not selling the property but she was in need for money and she is giving the property as security to the defendant and previously, she has taken the loan on the security of the mortgaged property. If Sakamma was in need of money and was transferring the property to defendant as a security, if really the plaintiff offered to pay the consideration amount under the 42 Sale deed, the need of Sakamma would have fulfilled, there was no necessity for Sakamma to execute the property to 3rd person instead of reconveying it to the plaintiff after taking her money to fulfill her need. The statement of P./W1 also clearly establishes that the claim of the plaintiff that Mayanna executed a Conditional Saledeed in favour Sakamma is not correct and true fact. P.W.1 further states Sakamma assured the plaintiff that if they pay loan amount to Lakshmamma, the Plaintiff can take back the property from Lakshmamma. If the plaintiff were ready to pay the money, the question of payment to Lakshmamma do not arise. She could have directly paid to the Sakamma and could have taken back the property. Instead of taking the property from Sakamma, how the plaintiffs satisfied with the assurance given by Sakamma. If really the plaintiff had offered to pay consideration 43 amount to Sakamma, there was no necessity to alienate the property to Lakshmamma. No person will keep quite or allow the sell the property to 3rd person instead of reconveyance. P.W.1 further states, that they also asked Lakshmamma to hand over the possession of mortgaged property. Lakshmamma told that if the plaintiffs pay some more amounts, she is ready to receive the amount and she is ready to give possession of the property.
When there is no sale deed in favour of Lakshmamma, the question claiming the more amount by Lakshmamma do not arise. There is also no necessity to claim more amount if really it is mortgaged for consideration amount. So this fact also goes to show, that the plaintiff has not come to the court with clean hands and not deposing the true facts before the court. The deposition given by the plaintiff on 16.11.1992 itself negatives the claim of plaintiff that the sale 44 deed executed by plaintiff's husband in favour of Sakamma and in turn Sakamma to Lakshmamma are the nominal sale deeds or mortgaged deeds. P.W.1 further states that her husband and village panchayathdars decided to give Rs.9,500-00 to Lakshmamma and Lakshmamma has to execute the reconveyance Deed in favour of the plaintiffs. If really the Plaintiffs were ready to pay the amount and were eager to get back the property, there was no necessity to agree to execute the sale deed within 15 years. No person will agree for execution of sale deed for a period of 15 years when they were ready with the money. The period of 15 years agreed by the parties for execution of reconveyance without any reasons creates doubt about the genuineness of the document - Ex.P-7. Said finding does not require any further elaboration and if any such exercise is carried out it would be an exercise in 45 futility. Hence, Point No.1 formulated herein has to be answered in the affirmative i.e., against the plaintiff. RE. POINT NO.2:
21. It has been the contention of Sri Ajay Govindraj, learned counsel appearing for plaintiff that deed of reconveyance or agreement of sale dated 16.12.1968 Ex.P7 executed by defendant Smt.Lakshmamma in favour of Sri.Mayanna and plaintiff came to be denied by defendant and accepted by trial Court is contrary to evidence available on record. In support of his submission he has relied upon the evidence of C.W.1- fingerprint expert. Said fingerprint expert came to be appointed by Trial Court at the behest of plaintiff. Plaintiff contended that left thumb impression found on Exhibit P-7 is that of defendant namely Smt.Lakshmamma, on the other hand defendant denied the execution of said agreement and contended that it was not her thumb impression and pleaded that it is a forged, concocted and fabricated document. In view of defendant 46 denial of LTM found on Exhibit P-7, an interlocutory application I.A. No.V came to be filed by plaintiff. Following chronological dates with events would throw light on the contentions raised by the respective learned Advocates in this regard and they are as under:
23.07.1999 "I.A.V was filed under Order 26 Rule 10A seeking comparison of disputed thumb impression Ex.P7(a) with admitted thumb impression of defendant.
03.11.1999 Said application was allowed. Fingerprint Expert was appointed to examine thumb impression of the deceased defendant. Said order reads as under:
"I.A.V is allowed. The disputed thumb impression of deceased defendant at Ex.P.7(a) shall be sent to the Fingerprint Expert for comparison with the admitted thumb impression of the deceased defendant on the vakalath and other available documents on record for opinion, as prayed for in the application.47
The plaintiffs shall furnish name and address of the Fingerprint Expert and also shall deposit the requisite fees by the next date. Tentatively the fees is fixed at Rs.1,000/-. To comply the order by 10.11.1999.
Sd/-
XI Addl. City Civil Judge,
Bangalore city
18.07.2000 Order came to be communicated to
Superintendent of Police, Fingerprint
Bureau, K.G.Road, by the Assistant
Registrar, City Civil Court.
29/31.08.2000 Communication despatched from S.P,
Fingerprint Bureau to Trial Court intimating that what has been forwarded to it as Ex.P.7A is not the finger impression but signature. Entire documents came to be returned to civil Court by S.P.Finger Print Bureau, Bangalore.
19.06.2001 Communication No:534/2001 from City Civil Court to Superintendent of Police intimating 48 deposit of fees and forwarding the documents mentioned therein.
07.09.2001 Communication from S.P. Finger Print Bureau, Bangalore to City Civil Court, Bangalore that LTM found in sale-deed (Ex.P7) said to be of Laxmamma be marked and sent back for further action. Original sale-deed (Ex.P7) was also enclosed along with said communication.
20.11.2001 Reply by Assistant Registrar, City Civil Court to S.P, Fingerprint Bureau, directing to examine the thumb marks comparing with the disputed thumb marks and original sale- deed marked as Ex.P.7 was forwarded along with this communication.
13.02.2002 Communication from Fingerprint Bureau to Trial Court intimating that original Sale deed dated 16.12.1968 (Ex.P.7) sent to its office on 03.12.2001 misplaced.
25.02.2002 Show-Cause notice issued to S.P. Finger Print Bureau, CID, Bangalore as why action 49 should not be taken for not forwarding/furnishing opinion.
28.05.2002 Intimation by S.P, Fingerprint Bureau to Trial Court intimating that efforts are being made to trace original Ex.P.7 and sought for extension of time to trace the document and furnishing of opinion. It was also intimated that action against officer/officials responsible for misplacing original document is being initiated.
27.06.2002 Communication from S.P, Finger print
Bureau, Bangalore to City Civil Court,
Bangalore intimating misplacement of
original of Exhibit P-7 and for want of it opinion not being furnished. Also, requesting for a photo copy of the same being sent.
28.06.2002 Communication from S.P, Fingerprint Bureau to Trial Court intimating that the original Ex.P.7 was referred to Fingerprint Expert and he had examined the document and returned the sale deed to the Court for causing the marking of disputed Finger 50 Impression said to be of Laxamma on the sale deed. It has also been intimated that on receiving back the original of Ex.P.7 from the Trial Court on 03.12.2001, it was received by Sri.S.K.Lingaraju, Police Inspector, Finger Print Bureau, Document Section, Bangalore and it was forwarded to the Section for Registration process to be brought to the notice of S.P. Chamber and in transit, it has been lost. As such, requested the Trial Court for sending a copy of Ex.P.7, if agreed to by court.
02.01.2003 Communication from S.P, Fingerprint Bureau to Trial Court enclosing the opinion certificate.
Opinion relating to Disputed Left Thumb reads as under:
"Disputed left thumb print marked as 'Q' is IDENTICAL WITH THE admitted Left Thumb Prints marked as A, A1, A2, A3, A4, A5 & A6."51
22. At the first instance let me examine as to whether the evidence of C.W.1, which has been considered and rejected by Trial Court is to be accepted or to be reversed. It is not in dispute that original agreement Exhibit P-7 came to be marked through P.W.1 on 26.07.1990. Though it is stated by P.W.1 that defendant had affixed Left Thumb Mark to Exhibit P-7, for reasons best known said LTM was not marked in her evidence. However, signatures of witnesses to the said document namely Exhibit P-7 were identified by P.W.1 in further examination-in-chief on 24.09.1991 and their signatures came to be marked as Exhibit P-7(a) and P-7(b). It is this Exhibit P-7 which came to be referred to fingerprint expert appointed by Court. The correspondence above referred to would indicate that original was lost in the office of Fingerprint Bureau, Bangalore during transit and what came to be scrutinized and examined by the Fingerprint Bureau is the photostat copy. Report of the Commissioner namely fingerprint expert which is marked as Exhibit C-6 would indicate that certification regarding expert opinion is 52 dated 02.01.2003. Certificate namely fingerprint certificate came to be marked as Exhibit C-7 and the signatory to said opinion is Sri.G.N.Warikar (C.W.1) and he has affixed the date on which he has rendered his opinion as per Exhibit C-7 as 02.01.2003. It is the said officer who had examined the disputed thumb impression of deceased Smt Lakshmamma with that of thumb impression found in the admitted documents namely written statement and vakalathnama. Communication dated 13.02.2002 from the office of Finger Print Bureau to the Registrar, City Civil Court would clearly indicate that as on 13.02.2002 itself original agreement had been misplaced. In fact there is another communication dated 03.12.2001, which has been referred to in the communication dated 13.02.2002, whereunder Superintendent of Police - Fingerprint Bureau states that in earlier communication itself Trial Court has been intimated about the misplacement of original agreement, Exhibit P-7. In other words even as on 03.12.2001 original agreement had been misplaced. Thus, what came to be examined by the 53 expert was not the original thumb impression of defendant Smt Lakshmamma, said to have been affixed in Exhibit P-7. The thumb impression which came to be examined by said expert is from the photostat copy of Exhibit P-7 which came to be forwarded by the trial Court on request from the office of Finger Print Bureau.
23. In their covering letter dated 02.01.2003 Superintendent of Police has clearly mentioned as to what are the documents enclosed to said letter and first document is;
1. Certified Xerox copy of the sale deed (Reconveyance deed) dated 16.12.1968 (Exhibit P-7(a))
2. xxxxxxxxxx
3. xxxxxxxxxxx
4. xxxxxxxxx This would clearly indicate that what was examined by C.W.1 was the thumb impression found on a photostat copy. He also admits in his examination-in-chief dated 27.05.2003 that 54 thumb impression of Smt Lakshmamma as found in certified xerox copy of agreement was seen by him. Thus, it can be safely concluded that what was examined by said fingerprint expert was not the original thumb impression found in original document or it is not the thumb impression found in original document which came to be examined by him. It is for this reason Trial Court was not inclined to accept the contention of plaintiff with regard to execution of Exhibit P-7.
24. Dehors this conclusion, to lay to rest further, contention that is put forth by plaintiff on the basis of evidence of C.W.1, is also being examined, which is to the effect that thumb impression found in a certified xerox copy is identical to thumb impression found in written statement and Vakalathnama, and as such trial Court has also examined as to whether this evidence of expert can be eschewed or not, which has been answered in the negative on the ground that plaintiff has not been able to corroborate this document by independent evidence is erroneous. Reasons assigned by Trial 55 Court in detail and in extenso at paragraphs 15 to 21 is in consonance with the law laid down by Apex Court in this regard and any further scrutiny of this point by this court would be repetitive and as such said exercise is not embarked upon. It is no doubt true that contention of Sri. Ajay Govindaraj that identifying thumb impression is an exact science and it requires to be accepted. However, that by itself would not be sufficient, Expert opinion is one of the material evidence which would tilt in favour of a person, who propounds the document or it would sway in his or her favour, subject to there being other corroborating evidence available on record to arrive at a conclusion that disputed document had infact come into existence, as otherwise, said expert opinion would remain as a piece of evidence without any corroboration.
25. Apex Court in the case of THIRUVENGADAM PILLAI VS. NAVANEETHAMMAL AND ANOTHER reported in 56 2008 (8) SCC 530 at paragraph 16 has held to the following effect:
"16. While there is no doubt that court can compare the disputed handwriting/ signature/ finger impression with the admitted handwriting/signature/finger impression, such comparison by court without the assistance of any expert, has always been considered to be hazardous and risky. When it is said that there is no bar to a court to compare the disputed finger impression with the admitted finger impression, it goes without saying that it can record an opinion or finding on such comparison, only after an analysis of the characteristics of the admitted finger impression and after verifying whether the same characteristics are found in the disputed finger impression. The comparison of the two thumb impressions cannot be casual or by a mere glance. Further, a finding in the judgment that there appeared to be no thumb impression, without anything more, cannot be accepted as a valid finding that the disputed signature is of the person who has put the admitted thumb impression. Where the court finds that the disputed finger impression and admitted thumb impression are clear and where the court is in a position to identify the characteristics of fingerprints, the court may record a finding on comparison, even in the absence of an expert's opinion. But where the disputed impression is smudgy, vague or very light, the court should not hazard a guess by a casual perusal."57
26. It is no doubt true that Court would be in a position to compare thumb impression between disputed and admitted, if it is able to identify the characteristics of such fingerprints by taking recourse to Section 73 of the Evidence Act, 1872 but where the disputed thumb impression is smudgy, vague or very light, it has been cautioned by Apex Court that Courts should not hazard a guess by casual perusal and it has to consider the report of expert.
27. In the instant case Trial Court having rejected the report of fingerprint expert and rightly so on the ground that what was examined by the expert is the thumb impression found in a photostat copy and not the original, it ought to have stopped at it. However, it has proceeded to compare the thumb impression found on photstat copy with original thumb impression found on Vakalathnama and Written statement by itself, which exercise could not have been undertaken by the Trial Court. To the said extent contention 58 of learned counsel appearing for plaintiff is correct and it deserves to be accepted.
28. However, it does not stop at it, inasmuch as Trial Court could not have embarked upon such an exercise particularly when it has held that report of the Commissioner being doubtful on the ground that he had examined the thumb impression found on a photostat copy to compare with admitted thumb impression, it could not have continued to repeat the same mistake, as such, to that extent finding of Trial Court cannot be sustained. However, conclusion arrived at by the Trial Court with regard to non-acceptance of Exhibit P-7 on account of there being no corroboration, deserves to be accepted. Plaintiff has not examined the witnesses to said document, on the ground that they were dead and gone. However, no steps have been taken to summon their legal heirs to identify the signatures found in Exhibit P-7. This was the least that was expected from plaintiff particularly when he has contended that Exhibit P-7 came to be executed by 59 defendant and when it was denied by her. In view of the fact that plaintiff has not undertaken such an exercise, trial court was justified in arriving at a conclusion that document Exhibit P-7 cannot be accepted and reliance cannot be placed on expert opinion to accept the plea of agreement of reconvenyance having been executed by the defendant.
29. Yet another factor, which swayed with the Trial Court and rightly so in discarding the contention of plaintiff about authenticity of Exhibit P-7 is, it did not contain the treasury seal namely stamp paper, which is said to have been produced by deceased Sri.Mayanna on which agreement of reconveyance was executed by deceased defendant in favour of Mayanna, does not contain the treasury seal or serial number of stamp paper under which it came to be issued. This again creates a cloud of suspicion with regard to said document. One another factor which requires to be noticed by this Court is that even according to plaintiff the owner of property was her husband i.e., deceased Mayanna. He had 60 executed sale deed on 29.09.1965 as per Exhibit P-2 in favour of Smt Sakamma. Plaintiff herself admits that her husband was the owner of suit schedule property. However, in the document namely deed of reconveyance propounded by plaintiff as per Exhibit P-7, which is said to have come into existence on 16.12.1968, there was no necessity for inclusion of present plaintiff - his wife in the said agreement when admittedly she was not a co-owner. Further if it is a transaction of conditional sale deed or in the alternate, if it was a mortgage deed, as contended, parties to the contract would have been the owner of the property and the person who has agreed to reconvey namely defendant. The inclusion of name of plaintiff in Exhibit P-7 is a fact which creates doubt with regard to authenticity and correctness as well as genuineness of Exhibit P-7. It is for this reason also Trial Court has rightly not accepted said document Exhibit P-7 and it has rejected the same. In that view of the matter, I am of the considered view that point No.2 formulated hereinabove 61 deserves to be answered in favour of defendant and against plaintiff.
RE POINT NO.3:
30. Seeking for grant of specific performance is no doubt a matter of right for plaintiff. However, it is a discretion, which requires to be exercised by Court below depending upon the facts of each case and there is no straight jacket formula on this. Sub-Section (2) would be the ground on which Trial Court can refuse to exercise said discretion. In the instant case Trial Court has refused to exercise the said discretion vested by it to grant relief of specific performance on the ground that plaintiff has not been able to demonstrate that there was an agreement of reconveyance and from the date on which sale deed dated 16.12.1968 came to be executed and the last date on which plaintiff would get his right to seek reconvey would be the 16th year has not been proved.
62
31. Apex Court in the case of PARAKUNNAN VEETILL JOSEPH'S SON MATHEW, Vs. NEDUMBARA KURUVILA'S SON AND OTHERS, reported in AIR 1987 SC 2328 has held that a duty is cast on the Courts to see that litigation is not used as an instrument of oppression to have unfair advantage to plaintiff. It has been held as under:
"14. Section 20 of the Specific Relief Act, 1963 preserves judicial discretion to Courts as to decreeing specific performance. The Court should meticulously consider all facts and circumstances of the case. The Court is not bound to grant specific performance merely because it is lawful to do so. The motive behind the litigation should also enter into the judicial verdict. The Court should take care to see that it is not used as an instrument of oppression to have an unfair advantage to the plaintiff. The High Court has failed to consider the motive with which Varghese instituted the suit. It was instituted because Kuruvila could not get the estate and Mathew was not prepared to part with it. The sheet anchor of the suit by Varghese is the agreement for sale Ex.A1. Since Chettiar had waived his rights thereunder, Varghese as an assignee could not get a better right to enforce that agreement. He is, therefore, not entitled to a decree for specific performance."63
32. Division Bench of this Court in the case of PUJARI NARASAPPA AND ANOTHER, APPELLANTS V. SHAIK HAZRAT AND OTHERS, RESPONDENTS reported in AIR 1960 MYSORE 59 has held that where Trial Court has exercised its discretion in one way or the other, Appellate Court would not interfere unless it has been established that said discretion exercised by Trial Court is arbitrary or against judicial principles. In the words of Division Bench it reads as under:
"(33) The only other point that remains to be considered is with regard to the cross objections.
On issue No. 1 the learned Subordinate Judge has held in favour of the plaintiffs. Exhibit 1 is a plain paper document bearing no stamps much less a stamp of even an anna affixed to it. Neither is it a registered document. It is has been contended by Sri. Jagirdar, the learned counsel for the respondents that the learned Subordinate Judge has erred in come to this finding on issue No. 1 in favour of the plaintiffs. In support of his contention, he relies on one important aspect, viz, that at the earliest possible opportunity plaintiffs have not alleged before the Collector before the filing of the suit that their claim is based on a written agreement.
Exhibit II which is filed by them proceeds on the basis that there was an agreement for the 64 purchase of the suit lands for a sum of Rs.
8,000/- but is silent as to whether the said agreement is in writing. Again it does not show that any earnest money was advanced or paid, much less either the sum of Rs. 505 as found in the agreement and Rs. 550/- as found in the plaint. The same attitude is maintained in the subsequent representations. Hence there is some force in the argument of Sri. Jagirdar that this document Exhibit I is of a doubtful nature and must have been brought into existence at a later date."
33. Under what circumstance Courts need not enforce contract, came to be considered by the High Court of Calcutta in the case of SEN MUKHERJEE AND CO., VS.
SMT.CHHAYA BANERJEE reported in AIR 1998 Calcutta 252 and it has been held as under:
"11. The relief of specific performance having its roots in equity, the Specific Relief Act, 1963 (referred to as the Act) has preserved the discretion of the Court not to grant the relief even though the agreement is specifically performable in law. The only fetters imposed by the statue on the exercise of the discretion are that the discretion must not be exercised arbitrarily but soundly and reasonably and guided by judicial principles. The phrase "capable of correction by a Court of appeals" has been inserted possibly to indicate the necessity for the trial Court to state the reasons for exercising its discretion in a 65 particular way. The circumstances when specific performance mentioned in the clauses (a), (b) and
(c) of sub-section (2) of Section 20 are not expressly exhaustive. They indicate the situations in which the Court may properly exercise discretion not to decree specific performance.
However, certain considerations have been excluded in relevant factors. These are contained in Explanations 1 and 2 to the Section as well as in Section 20(4). It is to be noticed that each of these exclusions are preceded by the word "mere". The word "mere" in the context means "sole". In other words, any one of those factors by itself would not justify the exercise of discretion against granting specific performance. The factors cumulatively or with other factors may from the basis of a decision not to grant specific performance.
19. There is sufficient evidence on record for the trial court to have come to the conclusion he did. The appellate court will not generally interfere with the exercise of the trial Courts exercise of discretion save in exceptional cases. The position in law is well settled. We do not find any reason to interfere with the discretion exercised by the trial Court."
34. In the instant case keeping the contours defined in the above referred cases when facts are examined it would emerge that in the year 1968, plaintiff along with her husband Mayanna claims to have obtained agreement of 66 reconveyance from defendant. It is the further contention of plaintiff that she approached defendant to execute sale deed after 15 years as stipulated in the agreement Exhibit P-7 and on account of her refusal she filed the suit for specific performance. There are no material particulars in this regard. The averments made in the plaint are vague. Undisputedly, Mayanna died in the year 1980. From 1968 till demise of Mayanna as to whether he had taken any steps or not, it is not forth coming from plaintiff's evidence. Plaint is silent and it has remained unexplained by plaintiff. It was incumbent upon plaintiff to establish these facts. Admittedly, deceased Mayanna was the owner of property at the time of conveying it to Smt. Sakamma in the year 1965 under Exhibit P-2. Even plaintiff claims that in the year 1965 property had been conveyed by Smt Sakamma in favour of Smt Lakshmamma. The recitals in the sale deed would clearly go to show that it was outright sale by Smt.Sakamma in favour of Smt.Lakshmamma and said Smt.Lakshmamma having purchased suit schedule property in the year 1966 and 1968 67 under sale deeds Exhibits P-3 and P-4, she has put up construction over the suit schedule property and much water has flown down the bridge and it would be inequitable to put the parties back to same position as that of the year 1968 and it would cause great injustice to defendant as she has put up construction over the suit schedule property and has been enjoying the fruits of income derived from the suit schedule property from the year 1968 itself. On these grounds also I am of the considered view that judgment of Trial Court does not suffer from any infirmities, whatsoever, either in law or on facts. There has been no erroneous appreciation of evidence nor there has been improper appreciation of material evidence available on record or there has been lack of appreciation of evidence available on record. Hence, point No.3 formulated hereinabove deserves to be answered in favour of defendant and against the plaintiff.
35. For the reasons aforestated, following order is passed:
68
ORDER i. Appeal is hereby dismissed with costs. ii. Judgment and decree passed by XXXI Addl. City Civil Judge, Bangalore in O.S.No.3810/1983 dated 05.07.2003 is hereby affirmed.
iii. Appellant-plaintiff to pay a sum of ` 10,000/- as costs to respondent-defendant within an outer limit of six weeks from today, failing which appellant would be entitled to recover the same from plaintiff by filing execution petition before jurisdictional Court, subject to observation made hereunder. iv. Registry to draw the decree accordingly. v. Amount in deposit said to have been made by appellant-plaintiff shall be paid to respondent- defendant by Trial Court on proper identification, which would meet the costs of this appeal.
69Respondent-defendant to recover the balance from plaintiff.
Sd/-
JUDGE SBN/DR