Kerala High Court
Chanduveettil Sakkeer Hussain vs Ayisha Beevi on 21 May, 2025
2025:KER:34803
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
WEDNESDAY, THE 21ST DAY OF MAY 2025 / 31ST VAISAKHA, 1947
RFA NO. 169 OF 2021
AGAINST THE DECREE AND JUDGMENT DATED 09.08.2021 IN O.S. NO.46 OF 2013 ON
THE FILES OF THE SUB COURT, TIRUR
APPELLANT/PLAINTIFF:
CHANDUVEETTIL SAKKEER HUSSAIN
AGED 34 YEARS
S/O. SIDDIQUE, CHANDUVEETTIL HOUSE,
PARAPPANANGADI AMSOM DESOM, PARAPPANANGADI P.O,
THIRURANGADI TALUK, MALAPPURAM DISTRICT
REPRESENTED BY HIS POWER OF ATTORNEY HOLDER,
SIDDIQUE, S/O. KASMI, AGED 72 YEARS, CHANDUVEETTIL HOUSE,
PARAPPANANGADI AMSOM DESOM, PARAPPANANGADI P.O,
THIRURANGADI TALUK, MALAPPURAM DISTRICT.
BY ADVS.
KALAM PASHA B.
VISHAKHA J.
HAMDAN MANSOOR K.
RESPONDENTS/DEFENDANTS 2 TO 6:
1 AYISHA BEEVI
AGED 64 YEARS, CHRACHAN VEETTIL.
W/O. CHRACHAN VEETTIL KADAVATH KUNHIMOIDEEN HAJI,
PARAPPANANGADI AMSOM DESOM, CHETTIPPADI P.O,
TIRURANGADI TALUK, MALAPPURAM - 676312.
2 SHAMEEMA
AGED 49 YEARS,
CHARACHAN VEETTIL, D/O. CHRACHAN VEETTIL KADAVATH
KUNHIMOIDEEN HAJI, PARAPPANANGADI AMSOM DESOM,
CHETTIPPADI P.O, THIRURANGADI TALUK, MALAPPURAM - 676312.
3 NAJEEBA
AGED 47 YEARS, CHRACHAN VEETTIL,
D/O. CHRACHAN VEETTIL KADAVATH KUNHIMOIDEEN HAJI,
PARAPPANANGADI AMSOM DESOM,
CHETTIPPADI P.O, THIRURANGADI TALUK, MALAPPURAM - 676312.
2025:KER:34803
R.F.A. No. 169 of 2021
2
4 SILSILA
AGED 45 YEARS, CHRACHAN VEETTIL,
D/O. CHRACHAN VEETTIL KADAVATH KUNHIMOIDEEN HAJI,
PARAPPANANGADI AMSOM DESOM, CHETTIPPADI P.O, THIRURANGADI
TALUK, MALAPPURAM - 676312.
5 DILDAR
AGED 43 YEARS, CHRACHAN VEETTIL,
S/O. CHRACHAN VEETTIL KADAVATH KUNHIMOIDEEN HAJI,
PARAPPANANGADI AMSOM DESOM, CHETTIPPADI P.O, THIRURANGADI
TALUK, MALAPPURAM - 676312.
R1 TO R3 BY ADVS.
SRI.T.SETHUMADHAVAN (SR.)
SRI.M.V.BALAGOPAL
SMT.P.V.PREETHI
THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON
10.04.2025, THE COURT ON 21.05.2025 DELIVERED THE FOLLOWING:
2025:KER:34803
R.F.A. No. 169 of 2021
3
"C.R"
JUDGMENT
Dated this the 21st day of May, 2025 The plaintiff in O.S. No.46/2013 on the files of the Court of the Subordinate Judge, Tirur , has preferred this appeal under Section 96 read with Order XLI Rule 1 of the Code of Civil Procedure, 1908 [hereinafter referred as 'CPC' for short], challenging the decree and judgment in the above case dated 09.08.2021, arraying additional defendant Nos.2 to 6, who are the legal representatives of the deceased original defendant as respondents.
2. Heard the learned counsel for appellant and the learned counsel appearing for the respondents. Perused the verdict under challenge, the records of the trial court and the decisions placed by both sides.
3. Parties in this appeal shall be referred with reference to their status before the trial court, hereafter.
4. Short facts: The plaintiff approached the trial court and sought the relief of specific performance of Ext.A1 agreement dated 20.07.2010, alleged to be 2025:KER:34803 R.F.A. No. 169 of 2021 4 executed between the plaintiff and defendant, agreeing to sell the plaint schedule property, having an extent of 23 cents at the rate of Rs.1,00,000/- per cent. The case advanced by the plaintiff in the plaint is that, out of the total consideration of Rs.23,00,000/-, Rs.19,00,000/- was paid as advance on the date of execution of Ext.A1 itself. Thereafter, when the plaintiff attempted to contact the defendant to execute the sale deed on accepting balance consideration, the attempt was failed, since by the time, the defendant went abroad. According to the plaintiff, he has been always ready and willing to execute the sale deed. Accordingly, the plaintiff approached the trial court and sought the relief of execution of the agreement or in the alternative, to get back the advance amount. During the pendency of the suit, as per the order in I.A. No.423/2019 dated 25.05.2019, the plaint was amended deleting the 'B' prayer for getting back the advance amount and the suit was proceeded with the main relief of specific performance of contract.
5. The original defendant filed written statement and the contention raised in the written statement in 2025:KER:34803 R.F.A. No. 169 of 2021 5 precise is that, Ext.A1 document is inadmissible in evidence for want of registration. That apart, he never executed Ext.A1, as contended by the plaintiff. The contention raised by the defendant further is that, when he faced financial stringency, he had approached Sri.Siddique, the father of the plaintiff, who is a known money lender, through one A.P. Balakrishnan, for lending an amount of Rs.4,65,000/- on 20.07.2010 with assurance to repay the same on 06.12.2010. Accordingly, he borrowed Rs.4,65,000/- from the father of the plaintiff and at the time of borrowing the said amount, two blank singed cheques of South Indian Bank, Parappanangadi Branch and four blank signed cheques of MDC Bank, Parappanangadi Branch and two blank signed stamp papers and six blank singed white papers and copy of the title deed of the property belonging to the defendant were entrusted to the Sri.Siddique. The defendant deposited Rs.6,00,000/- in MDC Bank and Sri.Siddique withdrew the amount by using one among the cheques of MDC Bank. According to the defendant, the blank signed stamp papers and blank signed white papers entrusted to Sri.Siddique, while lending money to the 2025:KER:34803 R.F.A. No. 169 of 2021 6 defendant were misused for the purpose of creating Ext.A1. Therefore, Ext.A1 is a fabricated document and the plaintiff is not entitled to get any of the relief sought for in the suit is the contention raised by the defendant.
6. The trial court raised necessary issues and tried the matter. PWs 1 to 3 were examined and Exts.A1 to A4 were marked on the side of the plaintiff. DWs 1 and 2 were examined on the side of the defendant. Apart from that, Exts.X1 and X2 were also marked as third party exhibits.
7. After evaluating the evidence, the trial court found that the execution of Ext.A1 is not proved and the trial court given much emphasis on the evidence of the witnesses, apart from considering the unfathomable gap between the signatures of the parties and recitals in Ext.A1, to hold that Ext.A1 was created using blank signed stamp papers and blank white papers obtained from the defendant, during a financial transaction, as contended by the defendant. The trial court also given emphasis to the gap between signatures of the witnesses as doubtful. Finally, the suit was dismissed.
8. While assailing the verdict of the trial court, the 2025:KER:34803 R.F.A. No. 169 of 2021 7 learned counsel for the plaintiff argued at length to convince this Court that the execution of Ext.A1 agreement is proved. According to him, in order to prove execution of Ext.A1, the plaintiff himself given evidence as PW1. Apart from the plaintiff, PW2, the father of the plaintiff, who had given Rs.8 Lakh to the plaintiff to give Rs.19 Lakh as advance and PW3, who had given Rs.3,50,000/-, who are signatories of Ext.A1, were also examined.
9. The learned counsel for the plaintiff attacked the inconsistent stand taken by the defendant during his examination and otherwise to hold that the same also would corroborate the version of PWs 1 to 3 in the matter of execution of Ext.A1 by the defendant. He has placed two decisions of this Court in support of his contention.
10. The first decision placed by the learned counsel for the plaintiff is the decision of this Court in Velayudhan v. Velayudhan reported in [2001 KHC 113 : 2001 (1) KLT 392 : 2001 (1) KLJ 161], where the Division Bench of this Court held in paragraph No.16 that, a general proposition cannot be laid down that the burden should be on the person, who has subscribed his signature to a blank 2025:KER:34803 R.F.A. No. 169 of 2021 8 paper. As it was stated in AIR 1931 Patna 219, the fact that the defendant's thumb impression appears on the paper is a strong piece of evidence in favour of the plaintiff and in the majority of cases very slight evidence would be necessary to prove that the thumb impression was given on the document after it had been written out and completed. Thus, evidence that has to be adduced by the plaintiff in such case will be less onerous than in cases where there is complete denial of signature and execution. But if the plaintiff's evidence is not sufficient or unreliable that onus cannot be said to be discharged. We may further say that always the burden of proof is on the person, who wants to get relief in the suit. As always stated, onus of proof shifts during the pendency of the litigation depending upon the nature of the evidence given by either side. The plaintiff may give evidence regarding the execution of the document. If the fact of thumb impression or signature is admitted, that will give more reliability to the plaintiff's evidence. If such evidence adduced by the plaintiff is reliable and if the plaintiff is able to discharge his burden sufficiently, then onus will shift on the defendant to show 2025:KER:34803 R.F.A. No. 169 of 2021 9 that he had not executed the document. We only say that the plaintiff cannot succeed in the case without giving evidence. Because the defendant had admitted his signature, he had to give some evidence to show that the document has been properly executed. Further things depend upon the evidence adduced and on facts and circumstances of each case. When both sides have adduced evidence, the question of burden to proof vanishes into the air. Hence, we are of the view that the decision given in 1990 (1) KLT 456 & 1990 (2) KLJ 115 putting the burden on the defendant have not laid down the correct law.
11. The learned counsel for the plaintiff also placed decision of this Court in Valli v. Jayaprakash reported in [2025 SC OnLine Ker 914], where this Court considered a suit for specific performance, wherein decree was granted by the trial court and confirmed the same, holding that Ext.A2 agreement was proved therein.
12. The contention raised by the learned counsel for the plaintiff further is that, the case of the defendant is based on the principle of non-est factum, with reference to 2025:KER:34803 R.F.A. No. 169 of 2021 10 paragraph No.8 of Velayudhan's case (supra) and the same reads as under:
8. During the discussion of this case, we found three types of cases: 1) When defendants merely submitted that signed papers were entrusted to a person and those papers were made use of for the purpose of executing an agreement. (2) The signed papers were given on the understanding that a particular document will be made. But contrary to that assurance, a different document was fabricated. (3) There are third sets of cases where the defendants even though have signed the documents, never intended to bring it in force.
13. Resisting the contentions raised by the learned counsel for the plaintiff, by pointing out the gaps in between the signatures of the parties as well as between the signatures of the witnesses in Ext.A1 and also the use of different ink by the parties to put signatures in Ext.A1, the learned counsel for the defendant contended that, at the outset itself Ext.A1 is a fabricated document prepared in blank signed stamp papers and white papers obtained by 2025:KER:34803 R.F.A. No. 169 of 2021 11 the father of the plaintiff from the defendant. It is pointed out by the learned counsel for the defendant further that, the schedule was included by avoiding necessary details, so as to adjust the entries within three pages. According to the learned counsel for the defendant, on no stretch of imagination one could say that Ext.A1 as a genuinely executed document. He also pointed out that payment of Rs.19 Lakh out of Rs.23 Lakh, without executing the original sale deed itself also as a serious aspect to disbelieve the execution of Ext.A1. In the matter of non-est factum, he has placed decision of the Apex Court reported in [1990 KHC 703 : 1990 (1) SCC 207 : AIR 1990 SC 540] Smt. Bismillah v. Janeshwar Prasad and Others, to contend that, the plea of non est factum could not be available to anyone who signed without taking the trouble to find out at least the general effect of the document. Nor could it be available to a person whose mistake was really a mistake as to the legal effect of the document. There must be a radical or fundamental difference between what he signed and what he thought he was signing. The defence of non est factum was not lightly to be allowed where a person of 2025:KER:34803 R.F.A. No. 169 of 2021 12 full age and capacity had signed a written document embodying contractual terms. But it was nevertheless held that in exceptional circumstances the plea was available so long as the person signing the document had made a fundamental mistake as to the character or effect of the document.
14. The learned counsel for the defendant has also placed decision of this Court in Paruthikkattuparambil Ayisha v. Permbra Abdul Nassar and Others reported in [2015 (4) KHC 76 : 2015 (3) KLJ 515 : ILR 2015 (3) Ker. 934], with reference to paragraph No.15, which was referred by the trial court, while disbelieving source stated by PW1 to give Rs.19 Lakh to the defendant as advance, as contended by him. Paragraph No.15 of Paruthikkattuparambil Ayisha's case (supra) reads as under:
15. In a controlled and regulated economy, it is to be expected that money involved in the financial transactions flow through known channels and hence, bound to be evidenced by supporting documents.
Evidently, in a case where entire transaction 2025:KER:34803 R.F.A. No. 169 of 2021 13 including the payment of consideration is disputed by specific pleadings and challenged in evidence, the burden will be heavily on the person claiming the payment of consideration, to prove it by clear, cogent and convincing evidence. This will assume more significance where huge amount is claimed to be transacted. Hence, the trial courts can legitimately expect it to be proved by documentary evidence like bank records, Bank passbooks, account books, Income tax returns, entries in the reliable records and registers and in exceptional cases by reliable parol evidence to prove the actual source and circumstances regarding raising of the money. In the absence of any convincing and reliable supporting proof as above, courts can justifiably treat the claim of passing of consideration as not proved. Insisting for reliable and clear evidence regarding the source of consideration alleged to have been paid can be one of the safest and assured method of proving the genuineness of an agreement for sale, when the genuineness of the transaction and payment of consideration is specifically disputed. Such an insistence of strict proof regarding the source of money or the channels of flow of money, will 2025:KER:34803 R.F.A. No. 169 of 2021 14 curb enforcement of mere money lending transactions through Court masquaraded as agreements for sale of immovable property and will protect genuine, proper and real land transactions.
15. Adverting the rival contentions, the points arise for consideration are:
1. Whether the trial court went wrong in holding that the plaintiff failed to prove execution of Ext.A1?
2. Whether the available evidence is sufficient to prove the execution of Ext.A1, as contended by the plaintiff?
4. Whether the decree and judgment of the trial court would require interference?
5. Reliefs and costs.
16. In this matter, the case of the plaintiff is that Ext.A1 agreement was executed on 20.07.2010 between the plaintiff and the original defendant and as per the terms of agreement, the defendant agreed to sell the plaint schedule property, owned by him to the plaintiff for a consideration of Rs.1 Lakh per cent and the extent of property is 23 cents. Out of the total sale consideration, 2025:KER:34803 R.F.A. No. 169 of 2021 15 Rs.19 Lakh was paid to the defendant as advance. The period for execution of the agreement was fixed as 11 months. Whereas, the case put up by the defendant is that, he did not execute Ext.A1 agreement and the same was created using blank signed stamp papers and white papers given by him to Sri.Siddique, who is the father of the plaintiff, when he borrowed Rs.4,65,000/- on 20.07.2010 as introduced by Sri.A.P. Balakrishnan. According to the defendant, the father of the plaintiff is a money lender. The further case of the defendant is that, he had repaid Rs.6,00,000/- by depositing the same to his account and the money was encashed by Sri.Siddique using one the of Cheques of MDC Bank. Exts.X1 and X2 are original cheques tendered in evidence in this regard [Exts.A3 and A4 are certified copy of cheques dated 06.12.2010 and 09.09.2010] and as per Ext.X2, Sri.C.V.Siddique issued cheque for Rs.6,00,000/- in favour of Kunhi Moideen (the defendant herein) on 09.09.2010 and Kunhi Moideen issued cheque dated 06.12.2010 in favour of Sri.C.V. Siddique and repaid the amount. The case advanced by the defendant in the written statement that, he borrowed Rs.4,65,000/- and 2025:KER:34803 R.F.A. No. 169 of 2021 16 repaid Rs.6 Lakh. Even though, in the written statement he did not raise any contention regarding borrowing of any other amount either from the plaintiff or from his father, as pointed out by the learned counsel for the plaintiff, during cross-examination, DW1 given evidence that, apart from Rs.4,65,000/-, he borrowed Rs.6 Lakh as on 09.09.2010 as cash initially and then stated that the same was given by way of cheque and he repaid the liability by Ext.X1 cheque. He identified Exts.X1 and X2. At a later stage, he has given evidence that he had repaid Rs.4,65,000/- also.
17. In this case, the trial court disbelieved the execution of Ext.A1 finding gaps between the signatures of the parties and witnesses as already argued by the learned counsel for the defendant and also disbelieving the evidence of PW1 as regards to the source of advance money being improper. Relying on the evidence of PW1, it is pointed out by the learned counsel for the plaintiff that, as regards to the source to advance Rs.19 Lakh is concerned, the evidence of PW1 though not specifically pleaded in the plaint or in the affidavit, during cross- examination he categorically stated that he obtained the 2025:KER:34803 R.F.A. No. 169 of 2021 17 money from different persons. According to him, he borrowed Rs.3.5 Lakh from his cousin Mr.Saidu, Rs.8 Lakh was given by his father, who got examined as PW2 and Rs.3.5 Lakh was given by Mr.Ahamed Koya, who got examined as PW3 and Rs.4 Lakh as that of him. As far as possession of Rs.4 Lakh by the plaintiff is concerned, the same is believable, since PW1 himself admitted that he is a person having money at hand at the rate of Rs.3-4 Lakh.
18. In order to fortify the evidence of PW1 as regards to payment of Rs.8 Lakh by his father, his father got examined as PW2. Even though, PW2 given evidence supporting the version of PW1 and also produced document showing the bank transaction, which was not marked by the trial court, for want of certificate under Section 65(b) of the Evidence Act, when he was cross-examined, he stated that, as per the bank statement, withdrawal of Rs.8 Lakh by him on 26.03.2010 could be gathered and the said amount was handed over to his son (PW1) as deposed by PW1. Even though the statement of account was not marked by the trial court, relying on the same, PW2 was cross-examined by the counsel for the defendant, 2025:KER:34803 R.F.A. No. 169 of 2021 18 suggesting that the said statement in no way would suggest that the money was given in whose favour. When a pertinent question was asked suggesting that money was given to a third party and it was not withdrawn by PW2 or PW1, his answer is that he did not remember. Thereafter, referring the statement of account, a question was asked as to whether the statement in no way suggest who withdrew the amount, he did not answer and it was recorded by the trial court as 'no answer'. Anyhow, there is no whisper in the plaint regarding the source of money to pay the advance amount. It is strange to note that, in the chief affidavit filed by plaintiff, he did not state that he had given Rs.19 Lakh as pointed out by the learned counsel for the defendant. As noted by the trial court, the cousin of PW1, who alleged to have given Rs.3.5 Lakh was not examined. But, PW3 was examined to prove that he had advanced Rs.3.5 Lakh to PW1 for the purpose of giving Rs.19 Lakh to the defendant. Even though, PW3 supported such version of PW1, during cross-examination his version is that, he also borrowed the said sum from various persons and he was not aware of the details of the persons. Now, the 2025:KER:34803 R.F.A. No. 169 of 2021 19 question arises for consideration is whether relying on the evidence of PWs 1 to 3, the trial court went wrong in holding that execution of Ext.A1 agreement not proved?
19. As far as the plea of non est factum is concerned, the observation of the House of Lords in Saunders v. Anglia Building Society [(1971) AC 1004] is relevant. The same reads as under:
"The plea of non est factum could not be available to anyone who signed without taking the trouble to find out at least the general effect of the document. Nor could it be available to a person whose mistake was really a mistake as to the legal effect of the document. There must be a radical or fundamental difference between what he signed and what he thought he was signing."
However the distinction based on the character of the document and the contents of the document was considered unsatisfactory. The distinction based on the character and contents of a document is not without its difficulties in its practical application; for, inconceivable cases the 'Character' of the document may itself depend on its contents. The difficulty is to be resolved on a case by case 2025:KER:34803 R.F.A. No. 169 of 2021 20 basis on the facts of each case and not by appealing to any principle of general validity applicable to all cases. Chitty on Contracts (General Principles, 25th Edition, Para 343) has this observation to make on Saunders' decision:
"........It was stressed that the defence of non est factum was not lightly to be allowed where a person of full age and capacity had signed a written document embodying contractual terms. But it was nevertheless held that in exceptional circumstances the plea was available so long as the person signing the document had made a fundamental mistake as to the character or effect of the document. Their Lordships appear to have concentrated on the disparity between the effect of the document actually signed, and the document as it was believed to be (rather than on the nature of the mistake) stressing that the disparity must be "radical", "essential", "fundamental", or "very substantial"."
20. In the instant case, the defendant raised a contention that his signed stamp papers and white papers were misused for creating Ext.A1 agreement. Even though, the learned counsel for the plaintiff attempted to justify the 2025:KER:34803 R.F.A. No. 169 of 2021 21 gaps in three pages of Ext.A1, the gaps between the signatures of the parties, different inks used by the plaintiff and defendant to sign in the agreement as well as the long gap in between the signatures of the witnesses in Ext.A1 in the last page are matters of consideration, evaluating the evidence of PWs 1 to 3, so as to decide as to whether Ext.A1 is proved.
21. The specific case put up by the plaintiff herein is that, 23 cents of property belonged to the defendant was agreed to be sold to him by the defendant, for a consideration of Rs.1 Lakh per cent and out of the total sale consideration, Rs.19 Lakh was paid to the defendant as advance. Thus, the balance amount left to be paid would come to Rs.4 Lakh alone. Paying a large portion of the sale consideration agreed, without executing the sale deed itself, is a circumstance to be read along while evaluating the question as to whether there was proper execution of Ext.A1, as contended by the plaintiff. As already discussed, on perusal of Ext.A1, there was attempt to justify gaps in three pages of Ext.A1, the gaps between the signatures of the parties and witnesses and different inks used by the 2025:KER:34803 R.F.A. No. 169 of 2021 22 plaintiff and defendant to sign in the agreement. This would happen normally when the entries are inserted in blank signed papers. If Ext.A1 agreement was properly executed, this anomaly could not have taken place.
22. In the instant case, on appreciation of the entire evidence along with the fact that the plaintiff availed loan from PW3 to advance Rs.3.5 Lakh to the defendant and also non examination of brother-in-law of PW1, alleged to have advanced Rs.3.5 Lakh to give advance sale consideration would shadow doubts in the execution of Ext.A1. To put it differently, the evidence available would not justify the due execution of Ext.A1 as contended by the plaintiff, as found by the trial court.
23. In view of the matter, this Court fully agree with the view taken by the trial court. Thus, the decree and judgment under challenge are only to be confirmed. Therefore, there is no reason to interfere with the verdict of the trial court. Holding so, the trial court verdict does not require any interference.
24. In the result, the appeal stands dismissed and the verdict under challenge stands confirmed. Having 2025:KER:34803 R.F.A. No. 169 of 2021 23 considered the facts of the case, the parties shall suffer their respective costs.
All interlocutory applications pending in this regular first appeal stand dismissed.
Sd/-
A. BADHARUDEEN SK JUDGE