Dismissed

Gidda-Ratna Kumari v. Sunkavalli Naga Kantha Siromani

Telangana HC29 Apr 2014AS/1132/1994

Case brief

AI extract

What is this about?

On an appeal against a decree for specific performance of an agreement of sale, the High Court upheld the trial court's finding that the agreement was validly executed. The court rejected the defendant's claim that signatures were obtained on blank papers for a loan, finding the evidence for that plea unreliable.

What did the court decide?

The appeal was dismissed confirming the impugned decree and judgment; defendant directed to execute registered sale deed.

Gidda-Ratna Kumari Vs Sunkavalli Naga Kantha Siromani — Specific Performance | Telangana HC (2014)

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HON’BLE SRI JUSTICE M.SATYANARAYANA MURTHY

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APPEAL SUIT No.1132 OF 1994

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JUDGMENT:

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The defendant in Original Suit No.9 of 1984 on the file of Subordinate Judge (Now Senior Civil Judge), Tanuku, West Godavari District, preferred this Appeal against the impugned decree and judgment dated 30.06.1994.

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2. The appellant herein is the defendant and the respondent herein is the plaintiff. For the sake of convenience, the parties hereinafter will be referred to as arrayed before the trial Court.

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3. The plaintiff filed the suit for specific performance of agreement of sale dated 10.02.1982, executed by the defendant in favour of the plaintiff, agreeing to sell the schedule property for Rs.95,000/- and for other reliefs like delivery of possession, recovery of advance amount of Rs.5,000/-, as an alternative relief, for damages of Rs.50,000/- for breach of agreement of sale and for costs, alleging that the defendant is the absolute owner of the schedule property, offered to sell the same to the plaintiff for consideration of Rs.95,000/- and the plaintiff readily agreed to purchase the same, paid advance of Rs.5,000/- to the defendant. The agreement of sale was executed on 10.02.1982 in the presence of husband of the defendant, attestors and scribe. As per the terms of the agreement, the defendant has to deliver vacant possession of the schedule property on the date of execution of regular registered sale deed and the plaintiff agreed to pay balance of sale

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consideration on or before 30.04.1982 and on such payment, the defendant has to execute regular registered sale deed in favour of the plaintiff or her nominee.

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4. While the mater stood thus, the defendant demanded the plaintiff to pay Rs.25,000/- on 17.02.1982 promising to endorse the said payment on the reverse of the agreement of sale. Accordingly, the plaintiff arranged Rs.25,000/-, made written endorsement, evidencing payment of amount, but the defendant did not turn up to receive Rs.25,000/- in addition to the amount already paid. Therefore, the endorsement remained unsigned on the reverse of the agreement of sale. Thus, the plaintiff is always ready and willing to perform her part of obligation under agreement of sale, but the defendant avoided to receive balance of sale consideration and perform her part of obligation under the agreement of sale. Thereupon, the plaintiff got issued a legal notice dated 23.04.1982, through her advocate, and also by telegram, demanding the defendant to receive balance sale consideration and execute registered sale deed. Despite it, the defendant having received the notice, had neither issued any reply nor executed a regular registered sale deed receiving balance of sale consideration. Again, the plaintiff got issued another legal notice dated 26.04.1982 calling upon the defendant to receive balance sale consideration and execute registered sale deed expressing her readiness and willingness to perform her part of obligation under agreement of sale. But, no reply was issued by the defendant to the notice. Thus, the defendant committed breach of terms and conditions of agreement of sale. Thereby, the defendant is under an obligation to execute registered sale deed in favour of the plaintiff or her

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nominee, after receiving balance sale consideration and also deliver vacant possession of the schedule property. In the event, if the Court finds that the plaintiff is not entitled to claim relief of specific performance sought for, alternative relief of damages at Rs.50,000/- for breach of terms and conditions of agreement of sale and also for a direction to recover the advance amount paid to the plaintiff along with interest and other consequential reliefs. Thus, the plaintiff claimed specific performance of agreement of sale and other alternative reliefs stated above.

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5. The defendant filed written statement denying material allegations of the plaint inter alia contending that she never executed any agreement of sale in favour of the plaintiff and never agreed to sell her schedule property to any one, for Rs.95,000/- and also denied receipt of advance amount of Rs.5,000/-. She contended that the value of the property as on the date of filing of the suit is Rs.3,00,000/-. She also denied the presence of her husband at the time of alleged execution of agreement of sale and attestation, so also request for payment of Rs.25,000/- on 17.02.1982 and promise to come back to receive the amount by the defendant.

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6. The defendant specifically contended that she never executed any agreement of sale and the agreement, if any, produced before the Court does not bear her signature. The defendant, being a house wife totally depending on her husband and purchased the house and site after sale of her gold and the stridhana amount paid to her, at the time of her marriage, by her father. Thus, the property is her self acquired property. It is

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specifically contended that her husband in collusion with the plaintiff created the agreement of sale with the help of her signatures on the blank stamp papers on the pretext of obtaining loan for his business. Therefore, the alleged agreement was not executed by her with an intention to sell the property and that she is a paradanishan lady and principles regarding proof of a document executed by a paradanishan lady have to be applied to the present case, while appreciating the evidence.

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7. The defendant further contended that the defendant’s husband, who is working as a transport agent obtained loan from the father of the plaintiff, who is a clerk in a local Court. To secure prompt repayment of the amount, father of the plaintiff obtained the signature of the defendant on stamp papers and created the agreement of sale. Therefore, the agreement of sale is not valid, legal, binding and enforceable under law. Thereby, the defendant is not under an obligation to execute any registered sale deed in favour of the plaintiff or her nominee.

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8. The defendant further contended that the plaintiff did not sustain any damage on account of the alleged breach of terms and conditions of the contract. On the other hand, the defendant herself suffered great loss on account of this litigation. Thereby, she is not under an obligation to receive balance of sale consideration and execute registered sale deed in favour of the plaintiff. At the same time, she is not required to pay any damages for breach of agreement of sale, since the agreement is invalid under law and not under an obligation to deliver vacant possession of the property or to repay any advance money. Finally, prayed to dismiss the suit

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with costs.

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9. Basing on the above pleadings, the trial Court framed the

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following issues :

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1. Whether the suit agreement dated 10.02.1982 is not true and binding upon the defendant?

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2. Whether the plaintiff is entitled to the possession of the suit property?

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3. In the alternative whether the plaintiff is entitled to damages of Rs.50,000/- for breach of contract?

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4. Whether the plaintiff is entitled to recover Rs.5,000/- with interest?

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5. Whether the plaintiff is entitled to create a charge upon the suit house?

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6. To what relief?

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10. During course of trial, on behalf of the plaintiff, PWs.1 to 3 were examined and Exs.A-1 to A-6 were marked; on behalf of the defendant, DWs.1 to 6 were examined and Ex.B-1 was marked.

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11. The trial Court, upon hearing argument of both counsel and considering oral and documentary evidence available on record, believed execution of agreement of sale and decreed the suit in favour of the plaintiff, directing the defendant to execute registered sale deed after receiving balance sale consideration.

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12. Aggrieved by the impugned decree and judgment of the trial Court, the defendant preferred this appeal on various grounds, raising following contentions :

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a) There is a discrepancy with regard to the presence

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of the P.W.2, attestor, native of a different place. So also the scribe, who is a Village Karanam of Duvva and it is an unnatural circumstance. If evidence of PWs.1 and 2 is appreciated in proper perspective, the trial Court would have disbelieved execution of Ex.A-1 itself :

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b) The trial Court totally ignored the evidence of P.W.3 without assigning any reason ;

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c) According to the plaintiff, the bargain was settled on the date of execution of Ex.A-1 and it is highly improbable to accept the said contention for the reason that at the time of settling bargain, no document is supposed to be obtained purchasing stamps. This is a strong reason to conclude that Ex.A-1 is created by obtaining signatures of the defendant - appellant on the blank stamp papers ;

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d) Making an endorsement marked as Ex.A-6 evidencing payment of Rs.25,000/- and without obtaining signature of the defendant would not constitute any acknowledgment as it was not signed by the defendant duly acknowledging receipt of Rs.25,000/-. There are several improbabilities in the case of plaintiff, but the trial Court totally ignored those improbabilities and decreed the suit in favour of the plaintiff without considering various contentions raised by the learned counsel for the defendant and thus committed an error.

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13. During the course of argument, the learned counsel for the

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defendant - appellant reiterated the grounds urged in the grounds of appeal so also in the written statement. However, the specific case of the defendant from the beginning is that there are several improbabilities in the evidence of the plaintiff’s witnesses and the trial Court failed to appreciate the evidence of PWs.2 and 3 in proper perspective. If the evidence of P.W.3 is accepted, the trial Court would have disbelieved the entire case set up by the plaintiff, but strangely the trial Court did not consider the discrepancies in the evidence to believe the proof of execution of Ex.A-1, agreement of sale, and committed an error.

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14. None represented the plaintiff - respondent, despite granting time to advance argument.

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15. Considering the contentions of the learned counsel for the defendant - appellant, after perusing oral and documentary evidence, including the impugned decree and judgment, the points that arise for consideration in this Appeal are as follows :

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1. Whether the agreement of sale dated 10.02.1982 is true, valid, binding and enforceable under law?

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2. Whether the plaintiff is entitled to the decree for specific performance of agreement of sale-Ex.A-1 dated 10.02.1982 on payment of balance sale consideration and also for recovery of possession.

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3. To what relief?

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16. POINT No.1: The suit is based on the agreement of sale marked as Ex.A-1, allegedly executed by the defendant, agreeing to

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sell the schedule property of an extent of 533^1/2 Square Yards along with a terraced building, which is fully described in the schedule annexed to the plaint, situated within Tanuku Municipality and paid advance of Rs.5,000/- on the date of execution of Ex.A-1 while agreeing to pay balance of sale consideration on or before 30.04.1982 and obtain registered sale deed and that the plaintiff is always ready and willing to perform her part of obligation, whereas the defendant denied the very execution of Ex.A-1, agreement of sale, while contending that her husband obtained her signatures on the pretext of obtaining loan and at the instance of the father of the plaintiff, who is a money lender working as clerk in the local Court insisted to sign on stamp papers as a security for repayment of the loan. Therefore, those signed stamp papers were handed over to the father of the plaintiff and utilizing those documents Ex.A-1 agreement of sale was created and that she never intended to sell and execute any agreement of sale in favour of anybody. Thus, she categorically denied the very execution of Ex.A-1 explaining how her signatures were obtained on the stamp papers.

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17. When the plaintiff based her claim on Ex.A-1 agreement of sale, allegedly executed by the defendant and denied by the defendant, the initial onus of proof is always on the plaintiff to establish execution of Ex.A-1. To prove execution of Ex.A-1, she herself was examined as PW.1 besides examining one of the attestors and the scribe of the document, since the other attestor of Ex.A-1 agreement of sale happened to be the husband of the defendant and who was examined as D.W.4. As usual, she reiterated what she pleaded in the plaint in her examination-in-chief

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about execution of Ex.A-1, payment of advance of Rs.5,000/-, so also about the usual terms contained in Ex.A-1 for payment and execution of registered sale deed and delivery of vacant possession on the date of execution of registered sale deed. In the crossexamination of P.W1, she admitted that she had no prior acquaintance with the defendant but through her brother-in-law, Mr. Tagore informed about the proposal of sale of the house. There upon, the plaintiff, her husband and Tagore, brother-in-law of the plaintiff, approached the defendant, settled the bargain and obtained Ex.A-1 agreement of sale on the same day, but expressed her inability to disclose about the exact time of settling bargain and place. However, it was written at the house of the defendant during afternoon. But the persons, who were present at the time of bargain were present at the time of execution of Ex.A-1 agreement of sale. Thus, whatever elicited with regard to place, time of execution of Ex.A-1 agreement of sale are insignificant and it is not a discrepancy as pointed out by the learned counsel for the defendant - appellant. The scribe of the document is one Village Karanam of Duvva, where her parents are residing. But her father is working as a clerk in Munsif Court, Tanuku, died while in service. She denied the allegation that her father was a money lender but used to pay some money to her relations. She also produced some papers with an intention to purchase house prior to execution of Ex.A-1 agreement of sale but she does not remember the date of purchase. However, in the entire cross-examination of P.W.1 nothing was elicited to discredit her testimony. But whatever suggested to her during her cross-examination regarding creation of Ex.A-1 taking advantage of blank signed stamp papers, handing over the same to her husband are denied by her.

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18. The plaintiff also examined PW.2, M. Ravindranadh, brotherin-law of the plaintiff, who was present at the time of execution of Ex.A-1 agreement of sale and attested the same. As usual, he testified in support of the plaintiff’s case in the examination-in-chief. However, in his cross examination PW.2 admitted that father of P.W.1 worked as a clerk in the Court, own and possessed 10 to 12 acres of land at Duvva and pleaded ignorance about the money lending business carried on by him at Tanuku. Village Karanam of Duvva is the scribe of the document. But a specific admission is made in his cross-examination at page No.2, which is extracted hereunder for better appreciation :

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“The scribe wrote Ex.A-1 in the house of the defendant. I do not know why and when the stamps of Ex.A-1 were purchased. In Duvva, the V.K. does not go to the house of the parties for writing documents. I brought the scribe to the house of the defendant to write document in the event of settlement to purchase the property.”

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19. Taking into advantage of the admission that the Village Karanam of Duvva does not go to the house of parties for writing documents, it is contended that Village Karanam, the scribe of the document, was not present at the time of alleged execution of Ex.A1. But, if the entire evidence of P.W.2 extracted above is taken into consideration, though Village Karanam of Duvva was not in the habit of going to the house of parties to scribe documents, PW.2 brought him to the house of the defendant to scribe Ex.A-1, if the bargain is settled. Therefore, this admission is not sufficient to discredit the entire testimony of PW.1 regarding scribing of Ex.A-1. Admittedly, the house of the defendant was situated at Tanuku. On

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close analysis of oral evidence of PWs.1 and 2, I find no material discrepancy which goes to the root of the case, more particularly, to disbelieve the execution of Ex.A-1 in the presence of PW.1, husband of PW.1, defendant and her husband and the scribe.

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20. The scribe, A.N.V.Ch.Mallikarjuna Rao was examined as P.W.3. According to his testimony, he scribed Ex.A-1 on furnishing particulars of property and terms agreed by the plaintiff and defendant and that the defendant signed on all three stamp papers in his presence after reading the contents of the document. The plaintiff paid Rs.5,000/- to defendant in his presence, but the bargain was not settled in his absence. In his cross-examination, he explained the reason for his visit to the house of the defendant though he is not in the habit of going to the house of the parties to scribe the documents. In the cross- examination, he admitted that he was not present at the time of negotiation. After bargain PW.2 and the defendant’s husband approached him as he was accidentally at the Taluk office of Tanuku. Thereafter, he went to the house of the defendant along with PW.2 and husband of the defendant, scribed Ex.A-1 agreement of sale. Thus, the consistent evidence of PWs.1 to 3 is that though P.W.3, the scribe of the document was not in the habit of visiting the house of the parties to scribe documents, on the date of execution of Ex.A-1, as he was incidentally present in the Taluk office of Tanuku, at request of PW.2 and husband of the defendant, he went to the house of the defendant and scribed Ex.A1. Though, certain discrepancies are pointed out in the grounds of appeal, actually I find no material discrepancy in the evidence of PWs.1 to 3 regarding execution of Ex.A-1. PWs.1 to 3 consistently testified that they were present at the time of execution of Ex.A-1 by

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the defendant. PWs.2 and 3 directly witnessed putting signature by the defendant on Ex.A-1, consisting of three stamp papers.

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21. The defendant herself was examined as DW.1. As usual she denied execution of Ex.A-1, totally supporting the defence set up in her written statement. Curiously, she admitted in her examinationin-chief as follows :

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“I have not executed Ex.A-1 in favour of PW.1. The signatures on all the pages of Ex.A-1 are my signatures. At the instance of my husband, I signed on blank papers in order to obtain loan by my husband.”

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22. It is clear from the above admission that the signatures appearing on Ex.A-1 as executant of the document are the signatures of the defendant. But she explained how her signatures appeared on the document. Therefore, she admitted signing on all the three pages of Ex.A-1, but to facilitate her husband to obtain loan. She did not disclose either in the pleadings or in her evidence about the exact date of obtaining her signatures on blank stamp papers by her husband so as to obtain loan from the father of the plaintiff. In the absence of any details like date of borrowing, amount borrowed, rate of interest, it is highly difficult to believe the contention of the defendant regarding obtaining her signatures on blank stamp papers to obtain loan from the father of the plaintiff by the defendant’s husband.

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23. Apart from that, the defendant is an educated woman as admitted in the first sentence of her cross-examination, that too, the defendant and her husband are living together without any difference of opinion. In such a case, if blank signed papers were

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handed over to the father of the plaintiff; her husband would have disclosed the said fact at least after receiving legal notice and would have given proper reply denying execution of agreement of sale in favour of the plaintiff, but having kept quiet, without issuing any reply to legal notice and telegram notice, suddenly set up a specific plea that she never executed any agreement of sale while affixing her signature on blank signed papers enabling her husband to obtain loan. If really that is the true fact, she would have disclosed the same at an earliest point of time by issuing a reply to the legal notice. Such conduct of the defendant, who maintained silence without issuing notice creates any amount of suspicion on the defence set up by the defendant.

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24. The defendant examined M. Narasimha Rao, native of Tanuku to prove that father of PW.1 carried on money lending business. The said Narasimha Rao testified that father of PW.1 was in the occupation of one of the shop rooms during 1981 - 82 to carry on money lending business. Later, he vacated the premises. But no document is produced to prove that father of PW.1 was in occupation, as a tenant in one of the shops of the plaintiff and apart from that, no details were disclosed referring date of obtaining premises and date of vacating premises on lease. Therefore, the evidence of DW.2 is of no avail to prove that father of the plaintiff used to carry on money lending business. Admittedly, father of the plaintiff was a clerk in the Court at Tanuku. His office time is from 10.30 A.M. to 5.00 P.M. with a gap of half an hour lunch time and at the same time, it is difficult for him to carry on any business, much less money lending business by running a shop of DW.2 at Tanuku, while he was shuttling to his office between Duvva and Tanuku to

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attend office. Even otherwise, no money lending license was produced before the Court and that carrying on money lending business by an employee is misconduct within the Andhra Pradesh Civil Service Conduct Rules, 1976. Therefore, in the absence of any iota of evidence, more particularly, referring the details of licence etc., and particulars of amount lent by father of PW.1, date of borrowal, rate of interest etc., the plea of the defendant that the blank signatures on the stamp papers were obtained is not believable and appears to have been created with a pre-plan, without issuing any reply notice.

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25. The defendant also examined her husband, who is an important witness in this suit, to substantiate her contentions. DW.3 is the husband of defendant, who is carrying on business of sale of motor spare parts and contended that he borrowed some amount from the father of PW.1 and when he approached for an amount of Rs.5,000/-, father of PW.1 demanded him to furnish guarantee and after appraisal of the father of the plaintiff, PW.2 obtained signatures of his wife on Ex.A-1 and handed over those blank signed papers to the father of PW.1 and received loan of Rs.5,000/-. Thus, as per examination-in-chief, DW.3 signed on blank stamp papers, handed over to the father of the plaintiff and Ex.A-1 is fabricated taking advantage of signatures on the stamp papers. In the first sentence of his cross-examination, DW.3 admitted that he is looking after the suit affairs of his wife DW.1 and several suggestions were put to him about execution of Ex.A-1 by DW.1 got denial of it. Except ipsidixit, no material is brought on record to prove obtaining loan from father of the plaintiff and even disclosed the date of borrowing and whether it is prior to Ex.A-1 or subsequent to it. Strangely, the

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defendant examined her father to prove that he purchased the property in the name of his daughter and gave it to her. But his evidence is of no use to prove or disprove execution of Ex.A-1. Similarly, the defendant also examined two other witnesses i.e., DWs.5 and 6 to prove money lending business etc., but their evidence is not helpful to establish that the father of the plaintiff used to carry on money lending business and obtained blank signed stamp papers. In the absence of any documentary evidence, examination of number of witnesses by itself is not sufficient, since, the quality of evidence that counts but not the quantity of evidence. While appreciating the evidence on record, the Court must look into the various attending circumstances and come to conclusion whether the plea set up by the defendant is probable to the natural circumstances or normal conduct of any human being.

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26. In the instant case on hand, the defendant admitted her signatures on Ex.A-1 but contended that her signatures were obtained on blank stamp papers by her husband to get loan from father of the plaintiff. When once she admitted her signatures on the document, it is for her to disprove the transaction covered by such document. The burden heavily lies upon the defendant.

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27. In a similar case, the Division Bench of this Court in B. Jogi Reddy Vs. Baldev Singh (died) by LRs .^[1] , held as follows in Para 7:

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“In our view, it is settled provision of law that when once signatures are admitted the burden to establish that the document is a fabricated one is heavily on the defendants. The learned Single Judge, however, opined “the burden is on the plaintiff to show that it has been executed by the deceased, first defendant.” In our opinion, such a view is

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wrong. On the other hand, the Trial Court recorded a categorical finding that Ex.A.1 is a document recorded on stamp paper of the year 1986. Admittedly the money lending transaction was of the year, 1982. The theory of obtaining signatures on blank papers does not fit in, in view of the above- mentioned facts.”

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28. In the facts of the above decision, when suit is filed for specific performance of agreement of sale, the defendant set up a similar plea, which the defendant - appellant raised in the present suit, but in such case, the burden is heavily lies on the defendant to establish signing or execution of documents on stamp papers, in the circumstances pleaded by her, but this Court disbelieved it as it is inconsistent with reference to facts pleaded and evidence adduced.

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29. In the instant case on hand, the plea raised in the written statement, more particularly, regarding the circumstance under which her signatures were obtained and to prove the said fact examined herself as DW.1 besides examining her husband. On close analysis of the evidence of DW.1 and her husband, their evidence is not worthy of credence, for the reason that the husband of the defendant did not disclose the date of borrowing and for borrowing such small amount, no ordinary prudent man will hand over signed promissory note, blank white papers, signed stamp papers etc., Since the plea and evidence adduced by the defendant is improbable to the natural circumstances, their evidence is highly doubtful and on the basis of the same, it is difficult for this Court to disbelieve the case of the plaintiff.

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30. When similar situation came up for consideration before this Court in Veeramareddy Nagabhushana Rao Vs. Jyothula

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Venkateswara Rao^[2] , a Division Bench of this Court in Para 18 held as follows:

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“The best person to speak about the circumstances under which defendant signed on blank papers and handed over them to the plaintiff was Lakshmi Tulasi, sister of the defendant. D.W.1 in his evidence stated that there are no disputes between him and his sister Lakshmi Tulasi, but she was not examined, who is a crucial witness as per the stand taken in the written statement and no other witness also examined by the defendant, inspite of the facts that the burden of proof is exclusively rests on him and thereby drawn an adverse inference”.

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31. Even according to the principles laid down in the decisions cited supra, the burden is exclusively on the defendant - appellant, but the plea raised in the written statement is not substantiated by any evidence. Therefore, the defendant miserably failed to substantiate her contention, more particularly, under what circumstances her signatures were obtained for lending the amount by third party to the Suit.

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32. However, to substantiate their contention, the defendant examined as many as six witnesses. Out of them, three witnesses were examined to prove carrying on money lending business by the father of the plaintiff. But their evidence is not worthy of credence, as there is no documentary evidence in support of their evidence. Similarly, the evidence of DW.4 is nothing to do with the present transaction. More over, the evidence of DW.3 is an important piece of evidence. But, DW.3 is not wholly credible witness for the reason that he did not disclose the date of borrowing and borrowing amount without executing any document etc., led me to disbelieve his

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testimony. Thus, the defendant failed to prove the specific plea set up by her in the written statement under what circumstances Ex.A-1 came into existence and fabricated, taking into advantage of the blank signed stamp papers of defendant.

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33. The document can be proved in different modes i.e., by examining any witness, who saw the execution of the document or by examining any person, who had got acquaintance with the signature of the defendant or with the aid of expert’s opinion and finally comparing admitted signatures with the disputed signatures exercising power under Section 73 of the Evidence Act by the Court itself. The Apex Court in State (Delhi Administration) Vs. Pali

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Ra m^[3] , at

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Para 23 made the following observations :

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“Just as in English Law, the Indian Evidence Act recognises two direct methods of proving the handwriting of a person:

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(1) By an admission of the person who wrote it. (2) By the evidence of some witness who saw it written. These are the best methods of proof. These apart, there are three other modes of proof by opinion. They are: (i) By the evidence of a handwriting expert. (Section 45 )

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(ii) By the evidence of a witness acquainted with the handwriting of the person who is said to have written the writing in question. (Section 47). (iii) Opinion formed by the Court on comparison made by itself. (Section 73)

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All these three cognate modes of proof involve a process of comparison. In mode (i), the comparison is made by the expert of the disputed writing with the admitted or proved writing of the person who is said to have written the questioned document. In (ii), the comparison takes the form of a belief which the witness entertains upon comparing the writing in question, with an exemplar formed in his mind from some previous knowledge or repetitive

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observance of the handwriting of the person concerned. In the case of (iii), the comparison is made by the Court with the sample writing or exemplar obtained by it from the person concerned”.

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34. One of the principles laid down in the decision cited supra, disputed document can be proved by any of the modes. In the instant case on hand, the plaintiff opted to prove the document following the second mode of proof i.e., by examining the attestors of the document as PWs.2 and 3, whose evidence remained unrebutted despite marathon cross-examination. Thus, the plaintiff succeeded in proving execution of Ex.A-1.

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35. The learned counsel for the defendant – appellant specifically contended that the signatures were obtained on blank stamp papers and handed over in connection with money transactions between the husband of the plaintiff and the third party to the suit and utilizing those papers, the document was created. When the transaction is a money transaction the Court may at best order for payment of money instead of granting the relief of specific performance and placed reliance on a judgment of the Apex Court

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i n Tejram Vs. Patirambhau^[4] , wherein the Apex Court held as follows in Para 4 :

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“4. …………………………. It is an admitted position that the respondent is a money-lender. Under these circumstances, the document purporting to be an agreement for sale is in fact not an agreement for sale; it is towards the unpaid interest on the loan taken by the respondent. It is seen that the High Court also accepted that the appellant had taken a loan in 1965 for a sum of Rs.1,500/- and repaid Rs.3,500/-. Shri Deshpande says that the sum of Rs.15,000/- is not factually correct; it is actually only Rs.1,500/-. If it is true sale transaction and the

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respondent being a businessman and having purported to have paid Rs.48,000/-, one would expect that the would seek possession or he would pay the balance consideration and request for execution of the sale deed. Instead, he kept quite for full 3 years. Be that as it may, it would appear that there was money transaction between the appellant and the respondent and the respondent, being money-lender, was taking documents, purporting to be an agreement of sale, from the loanees. In the event of the loanees failure to pay the loan amount along with interest stipulated by him, the documents would, obviously, be executed, with a view to enforce the repayment of loan and interest accrued thereon. It is unlikely that being a moneylender and having parted with Rs.48,000/- as cash, he would have kept quite either for seeking possession of the property or payment of Rs.2,000/- immediately and then sought specific performance; it would be unlikely in the normal circumstances that he would have waited for 3 years for issuing notice and then filing suit on the last date. Under these circumstances, the Courts below rightly came to the conclusion that it is not an agreement for sale or purports to be a sale in truth and in reality, but in view of the admission made by the respondent by way of endorsement that he had received Rs.48,000/- and in the absence of any specific circumstances and in view of the doubtful conduct of both the parties, it is not possible for us to reach any satisfactory conclusion on the basis of evidence as to what was the amount actually due and paid by the appellant to the respondent and what amount is still payable. Under these circumstances, we are of the considered view that the ends of justice would be met if the conclusion reached by the High Court that a sum of Rs.48,000/- was paid by the respondent to the appellant, is confirmed, However, respondent is not entitled to payment of any interest or cost, as ordered by the High Court. Under these circumstances, the order of the Division Bench of the High Court for payment of Rs.65,280/- is set aside. Instead, there will be a decree for a sum of Rs.48,000/- in lump-sum without any interest.”

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36. But, the principle laid down in the above decision cannot be

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applied for the reason that the plaintiff established that the transaction is only a sale transaction of immovable property not a money transaction and the same is established by the plaintiff adducing cogent and satisfactory evidence. Therefore, this contention of the defendant – appellant is not accepted. 37. The main contention of the defendant in this appeal is that there are discrepancies, but the trial Court over looked those discrepancies, without appreciating the evidence in proper perspective. On close analysis of entire evidence, I find no discrepancies, much less material discrepancies to disbelieve execution of Ex.A-1. Thus, the plaintiff established execution of Ex.A-1 and payment of Rs.5,000/- as advance under agreement of sale, Ex.A-1. The trial Court on proper appreciation of oral and documentary evidence rightly believed execution of Ex.A-1 and did commit no error in believing Ex.A-1, warranting interference of this Court in the Appeal. Hence, I find this point in favour of the plaintiff - respondent and against the defendant - appellant.

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38. POINT Nos.2 & 3: One of the contentions raised by the learned counsel for the defendant - appellant is that the stamps were purchased long prior to execution of Ex.A-1 and it is one of the grounds to disbelieve execution of Ex.A-1 on 10.02.1982. As seen from Ex.A-1, the stamps were purchased in the name of the plaintiff on 15.12.1981, whereas, the document was obtained on 10.02.1982 i.e., almost within a gap of less than two months. Therefore, PW.1 explained the reason for purchase of stamps even prior to settling the bargain. Hence it is not a ground to disbelieve execution of Ex.A-1.

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39. One of the contentions raised by the learned counsel for the defendant - appellant is that the plaintiff is not entitled to the relief of specific performance of agreement of sale, as the value of the property by the date of execution of Ex.A-1 is more than Rs.3,00,000/- and she will be put to much hardship, thereby, the discretionary relief of specific performance cannot be granted. As per the pleadings and evidence on record, the schedule property was purchased by the defendant for Rs.50,000/- under registered sale deed and whereas she executed agreement of sale Ex.A-1 for Rs.95,000/-, but contended that the value of the property is more than Rs.3,00,000/- by the date of execution of Ex.A-1. She did not produce any piece of paper to prove that the value of the property is more than Rs.3,00,000/- as on the date of execution of Ex.A-1 . In the absence of any documentary evidence, like valuation certificate by the Registrar’s Office or any document from the Competent Authority regarding the value of the property, the contention of the defendant cannot be accepted. Even otherwise, the relief of specific performance is undoubtedly a discretionary one, but such discretion shall be exercised judiciously and it is hedged by true exceptions contained under Section 20 of the Specific Relief Act. In the instant case on hand, the plaintiff did not plead the hardship except contending the value of the property is more than

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Rs.3,00,000/- but pleading the value of property itself is not sufficient to deny the relief of specific performance on the ground of hardship in the absence of any plea of unfair advantage of the defendant, hardship to the defendant both either at the time of execution of contract or subsequently.

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40. According to Section 20 of the Specific Relief Act, granting

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relief of specific performance is purely a discretionary one, and the Court is not bound to grant such relief merely because it is lawful to do so; but the discretion of the Court shall not be arbitrary but sound and reasonable, guided by judicial principles and capable of correction by a Court of appeal. The following are the cases in which the Court may properly exercise discretion not to decree the specific performance :

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(a) where the terms of the contract or the conduct of the parties at the time of entering into the contract or the other circumstances under which the contract was entered into are such that the contract, though not voidable, gives the plaintiff an unfair advantage over the defendant; or

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(b) where the performance of the contract would involve some hardship on the defendant which he did not foresee, whereas its non- performance would involve no such hardship on the plaintiff;

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(c) where the defendant entered into the contract under circumstances which though not rendering the contract voidable, makes it inequitable to enforce specific performance.

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At the same time, Clauses (3) and (4) of Section 20 of the Specific Relief Act, terms the Court to exercise jurisdiction to decree specific performance:

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(3) The court may properly exercise discretion to decree specific performance in any case where the plaintiff has done substantial acts or suffered losses in consequence of a contract capable of specific performance.

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(4) The court shall not refuse to any party specific performance of a contract merely on the ground that the contract is not enforceable at the instance of the other party.

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41. In the instant case on hand, the plaintiff did not plead any of the grounds contained in Section 20, except value of the property.

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But indirectly it amounts to undue advantage over the defendant. But in the absence of any plea and issue, the Court cannot decline to decree suit for specific performance. However, it is settled law that raising any particulars subsequent to the agreement and refusal to decree the suit on that ground is not proper as held by the Supreme Court in

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S.V.R. Mudallar (dead) by LRs. Vs. Rajabu F. Buhari (Mrs)

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(dead) by LRs .^[5] . If the above principle is applied to the present case, merely because there is a steep rise in immovable property, particularly the schedule property, the relief of specific performance cannot be denied for the reason that it was auctioned only on account of long pendency of litigation. Therefore, it is difficult to interfere with the discretion exercised by the trial Court in granting relief of specific performance in this Appeal.

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42. When the trial Court exercised its discretion, the appellate Court will not interfere with such discretion in the appeal unless it has been exercised frivolously, arbitrarily, capriciously, unreasonably, or against judicial principles. In the instant case on hand, the trial Court exercised its discretion in granting decree for specific performance judiciously. Therefore, the finding of the trial Court does not call for interference of this Court in this appeal. Hence, I find that the defence raised by the learned counsel for the defendant - appellant would not come to the aid of the defendant to reverse the finding of the trial Court. Hence, I hold this point in favour of the plaintiff - respondent and against the defendant - appellant. In view of my foregoing discussion, the appeal is devoid of merits and deserves to be dismissed.

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In the result, the appeal suit is dismissed confirming the impugned decree and judgment dated 30.06.1994, passed in Original Suit No.9 of 1984 on the file of Subordinate Judge, Tanuku. No order as to costs.

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In consequence, Miscellaneous Petitions, if any, pending in this Appeal shall stand dismissed.

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______________________________ M. SATYANARAYANA MURTHY, J

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Date: 29.04.2014 Pab/Dsh

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HON’BLE SRI JUSTICE M. SATYANARAYANA MURTHY

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APPEAL SUIT No.1132 OF 1994

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Date.29.04.2014