Krishnan and Others vs Kamala

P.R. Shivakumar, J.

The defendants in the original suit are the appellants in the appeal. The respondents herein filed the suit O.S. No. 187/2004 on the file of the Principal District Judge, Krishnagiri for the relief of specific performance against the appellants herein based on an agreement for sale dated 16.08.2003. After trial, the learned trial judge decreed the suit as prayed for and directed the appellants herein/defendants to execute a sale deed after getting the balance sale consideration from the respondent/plaintiff, register the same and hand over possession of the suit property to the respondent/plaintiff, by a judgment and decree dated 16.08.2003. The said decree of the learned Principal District Judge, Krishnagiri made in O.S. No. 187/2004 is challenged in this appeal filed under Section 96 of the Code of Civil Procedure.

For the sake of convenience, the parties are referred to in accordance with their ranks in the original suit and wherever necessary their ranks in the appeal shall also be referred.

The prayer for specific performance came to be made on the basis of the plaint averments, which are, in brief, as follows:

The defendants owned two adjacent houses at Sooriya Nagar in Arasanatti village, Mookandapalli Post, Hosur Taluk, Krishnagiri District. On 22.05.2003 they sold one of their houses to the plaintiff for a sum of Rs. 1,66,000/-. Subsequently, in August 2003, the defendants approached the plaintiff, as they wanted money urgently for their business of building contract and expressed their desire to sell the adjacent house also. The plaintiff agreed to purchase the said house also. After mutual discussion and negotiation, the sale price was fixed at Rs. 6,00,000/-. It was agreed that a sum of Rs. 3,00,000/- should be paid at the time of execution of sale agreement and the balance amount should be paid within 18 months. The first defendant brought the stamp papers for writing the sale agreement. After the parties arrived at a consensus, the defendants themselves went to Hosur, got the sale agreement prepared and came back to the plaintiff(tm)s house, whereupon the suit sale agreement came to be executed on 16.08.2003. At the time of execution of the agreement for sale, the plaintiff paid a sum of Rs. 3,00,000/- in cash. The brother of the plaintiff was present at that point of time and he attested the agreement. The plaintiff was ready and willing to deposit the balance as and when the court would order.

The suit was resisted by the appellants herein/defendants based on their averments made in the written statement, which are, in brief, as follows:

i) The plaintiff''s name is Kamalammal and she does not have an alias name as Kamalam. Similarly, the first defendant''s name is Krishnan and he does not have an alias name Krishnappa. Though it is true that the defendants sold one of their houses to the plaintiff for a sum of Rs. 1,66,000/- under a sale deed dated 22.05.2003, it is false to allege that they entered into an agreement with the plaintiff for the sale of the adjacent house to the plaintiff for a sum of Rs. 6,00,000/- and executed the suit sale agreement receiving a sum of Rs. 3,00,000/- as advance. When the plaintiff purchased the adjacent house under the sale deed dated 22.05.2003, there was a tenant in occupation of the said house and the defendants undertook to vacate the tenant within three months. As a security for performance of the said undertaking, the defendants were made to sign in a blank stamp paper at the time of execution of the sale deed dated 22.05.2003 and hand it over to the plaintiff. As per the undertaking, the defendants vacated the tenant and asked the plaintiff to return back the blank stamp paper containing their signatures. The plaintiff forced the defendants to sell the property, namely the suit property, but the defendants refused to do so. In view of the same, the plaintiff falsely and fraudulently created the suit sale agreement. In fact, the first defendant does not have any title to the suit property.

ii) The description of the suit property found in the plaint, the measurements and the boundaries mentioned are incorrect. The second defendant had purchased the suit property as a vacant site measuring east-west on the North 39 feet, East-West on the South 38 feet, North- South on the East 19.75 feet, North-South on the West 19.25 feet. Since the suit agreement for sale has been fraudulently created, the measurements found in the agreement differ from the sale deed under which the second defendant had purchased the suit property. The value of the suit property would be more than Rs. 15,00,000/-. The plaintiff has come to the court with unclean hands by creating the suit sale agreement with an intention to knock away the property worth Rs. 15,00,000/-. Hence the suit should be dismissed with cost.

The following issues were framed by the trial court:

"1. Whether the suit sale agreement has been fabricated as alleged by the defendants?

Whether the first defendant does not have any interest in the suit property?

Whether the description of the suit property is correct?

Whether the plaintiff is entitled to the relief of specific performance and other reliefs as prayed for in the plaint?

To what other reliefs the plaintiff is entitled?"

Two witnesses were examined as PWs1 and 2 and three documents were marked as Exs.A1 to A3 on the side of the plaintiff. Three witnesses were examined as DWs1 to 3 and 12 documents were marked as Exs.B1 to B12 on the side of the defendants.

The learned trial judge, on an appreciation of evidence, arrived at a conclusion that the suit sale agreement was genuine and that the plaintiff was entitled to the relief of specific performance and other reliefs sought for in the suit. Accordingly, by judgment and decree dated 16.08.2003, the learned trial judge decreed the suit granting the reliefs, as indicated supra. It is as against the said decree of the learned trial judge, the present appeal has been filed on various grounds set out in the memorandum of grounds of appeal.

The points that arise for consideration in this appeal are as follows:

"1. Whether the suit agreement for sale is genuine?

Whether the suit agreement for sale is one fabricated using the signatures of the defendants obtained in blank stamp papers as contended b y the appellants/defendants?

Whether the respondent/plaintiff has proved her readiness and willingness in accordance with Section 16(c) of the Specific Relief Act, 1963?

Whether the respondent/plaintiff is entitled to the relief of specific performance and other reliefs as prayed for?"

The arguments advanced by Mr. David Tyagaraj, learned counsel for the appellants and by Mr.V.Raghavachari, learned counsel for the respondent were heard. The materials available on record were also perused.

The learned counsel for the appellants/defendants constructed his arguments on the basis of the alleged difference in the names of the parties and also the fact that except the interested testimony of PW1, the plaintiff herself and PW2, her own brother, no other independent evidence came to be adduced on the side of the plaintiff. It is also the contention of the learned counsel for the appellants/defendants that through the evidence of DWs1 and 2, who are defendants 1 and 2 and DW3-Bhaskar, who was the tenant in respect of the suit properties, the defendants have proved their case of having handed over signed blank stamp papers to the plaintiff as a security for vacating the tenant in respect of the adjacent property, which had been sold to the plaintiff and that, on the other hand, the learned trial judge, without properly considering the weight of evidence adduced on the side of the defendants, arrived at an erroneous conclusion that they failed to prove their contention.

Per contra, it is the contention of the learned counsel for the respondent/plaintiff that on a proper appreciation of evidence and considering the reliability of the evidence, both oral and documentary and circumstantial evidence, the learned trial judge arrived at a correct conclusion that the suit agreement for sale was genuine and that the plaintiff was entitled to the relief of specific performance and other reliefs, since she proved her readiness and willingness to perform her part of the obligation under the agreement for sale.

This court carefully considered the above said contentions raised on behalf of the parties.

Point Nos. 1 and 2:-

The suit came to be filed for specific performance and other reliefs, based on an agreement for sale dated 16.08.2003 allegedly executed by the defendants in favour of the plaintiff agreeing to sell the suit property to the plaintiff for a sum of Rs. 6,00,000/-. The suit sale agreement has been produced by the plaintiff and marked as Ex.A1. It is an admitted fact that a house adjacent to the suit property also belonged to the defendants and they sold the same to the plaintiff under a sale deed dated 22.05.2003. A certified copy of the sale deed has been produced as Ex.B1. It is the contention of the appellants herein/defendants that they did not execute Ex.A1-Agreement for sale and that on the other hand, it was created by the plaintiff using the signatures of the defendants obtained in a blank stamp paper at the time of execution of the original of Ex.B1-sale deed. The circumstances under which they were constrained to sign the blank stamp papers have been narrated by the defendants as follows:

"At the time of sale under Ex.B1, PW3 was in occupation of the property sold under the sale deed and the defendants undertook to vacate the tenant and hand over vacant possession within three months. As a security for the fulfilment of the said terms, they were asked to sign a blank stamp paper by the plaintiff and they did so. Later on, the tenant had vacated and when the defendants asked for the return of the blank stamp papers containing their signatures, the plaintiff wanted the second defendant to sell the suit property to her for which the second defendant was not agreeable. The same made the plaintiff to fabricate an agreement using the stamp paper containing the signatures of the defendants and file the suit."

Though the signatures of the defendants found in Ex.A1 are admitted, it shall not amount to execution of the document. The initial burden of proving the execution of Ex.A1-Agreement for sale shall stand cast on the plaintiff. The plaintiff, who figured as PW1, repeated and reiterated the plaint averments regarding the execution of Ex.A1- Agreement for sale and payment of Rs. 3,00,000/- as advance. Though she was extensively cross-examined with regard to the survey number and other particulars of the property, she made it clear that she was an illiterate and the document itself had been got prepared by the defendants and brought to her house for the signature of the parties. It was her testimony that she borrowed a sum of Rs. 1,00,000/- from her elder brother Muniappa, a sum of Rs. 50,000/- from another elder brother Pachiappa and a sum of Rs. 25,000/- from her elder sister, besides the borrowals made from other persons known to her to make out the amount paid as advance. The said part of her evidence may not be taken as weakening the case of the plaintiff for the simple reason that she was not able to give the particulars of the other persons from whom she borrowed money. The plaintiff as PW1 has made a clear assertion that the defendants wanted to sell the suit property to her and after negotiation, they agreed for a sale consideration of Rs. 6,00,000/- and agreed that a sum of Rs. 3,00,000/- would be paid at the time of execution of the agreement for sale and balance amount would be paid within 18 months thereafter. It is also her clear testimony that the defendants themselves brought the stamp paper and they went to Hosur, got the sale agreement prepared, came back to the house of the plaintiff and thereafter the agreement was signed by the parties in the presence of the plaintiff''s brother Muniappa, who also attested Ex.A1-Agreement for sale.

The said Muniappa figured as PW2. He corroborated the evidence of PW1 in all respects regarding the execution of Ex.A1- Agreement for sale and payment of Rs. 3,00,000/- as advance. He has also spoken about his attesting Ex.A1-suit sale agreement. His evidence regarding the number of persons who signed the agreement is also in conformity with the features found in Ex.A1. He has also corroborated the evidence of PW1 that he lent a sum of Rs. 1,00,000/- as a hand loan to the plaintiff for the purchase of the suit house. It is also his clear assertion that it was he who handed over the advance amount of Rs. 3,00,000/- to the defendants. The said evidence shall be sufficient to prove the execution of the suit agreement for sale or at least to discharge the burden of proving the execution of the suit agreement for sale causing shifting of the burden on the defendants to prove their contention that the suit agreement was created using the signatures obtained in blank stamp paper.

Ex.A1 has been prepared in 100 rupees stamp paper purchased on 12.05.2003 in the name of one Krishnappa. The defendants in their written statement did not state anything about the name of the person in whose name the stamp paper had been purchased for getting their signatures as guarantee for vacating the tenant in the adjacent house sold by the defendants to the plaintiff under the original of Ex.B1. There is no evidence as to the date on which the negotiations for the sale of the adjacent house concluded, so as to make the plaintiff to purchase a stamp paper and keep it ready for getting the signatures of the defendants at the time of execution of the sale deed dated 22.05.2003. We cannot assume that more than one month prior to the date of execution of the sale deed the plaintiff would have purchased a stamp paper in the name of Krishnappa for getting the signatures of the defendants without writing anything in it. Moreover, the defendants could have very well refused to sign the blank stamp paper and they could have insisted upon writing the same as a letter/agreement of undertaking to vacate and hand over possession of the property sold under the sale deed dated 22.05.2003 within a particular time from the date of sale, before affixing their signatures.

It is also pertinent to note that there is nothing in Ex.B1-sale deed to suggest that the property was in the occupation of a tenant and that the tenant could be vacated by the vendors therein. On the other hand, Ex.B1 contains a recital to the effect that vacant possession of the property was delivered to the purchaser on the date of sale, namely on 22.05.2003 itself. No amount was withheld from the sale consideration for enforcing the alleged undertaking of the vendor to vacate the tenant within three months. Further, PW2 made it clear in his cross examination that at the time of purchase of the adjacent property under the original of Ex.B1, the second defendant Sathya was residing in the said house and it was not in the occupation of any tenant by name either Baskaran or Kumar.

In the written statement, the defendants have made a blanket averment to the effect that there was a tenant in the property sold under the sale deed dated 22.05.2003 on the date of sale and for vacating him within three months an undertaking was given. However DW1 has not named the tenant in his chief examination in the form of proof affidavit. During cross examination, he named the tenant to be one Kumar and stated that he vacated the house within two months from the date of sale under the original of Ex.B1. DW2 in her evidence in chief examination in the form of proof affidavit has named the tenant as Prabhakar. There is no explanation regarding the contradiction between the evidence of DWs.1 and 2 as to what was the name of the tenant who was residing in the property sold under the original of Ex.B1 on the date of sale. There is a clear admission made by DW2 that when they sold the adjacent house to the plaintiff on 22.05.2003, neither she nor her husband did inform the plaintiff that the property had been let out to a tenant. It is also her admission that she did not know who were all residing in the house sold to the plaintiff. The further admission made by her is that the property already sold to the plaintiff was vacant and hence possession of the same was handed over to the purchaser on the same day. The relevant portion in her evidence in cross examination in vernacular reads as follows:

Vernacular Matter ommited here

One Prabhakar has been examined as DW3. It is highly unbelievable that he was informed by the defendants after the execution of the sale deed in favour of the plaintiff that they had signed blank stamp papers and handed over the same to the plaintiff. The evidence of DW2 in this regard seems to be hearsay, as he admits that he did not have any direct knowledge and he came to know only on the information furnished by the first defendant. No document evidencing payment of rent or payment of advance by DW3 has been produced. There is also no scrap of paper to show that he had paid an advance of Rs. 25,000/- and received the same within three months after the sale made in favour of the plaintiff. The above said contradictions regarding the name of the person, who was allegedly residing there as a tenant, coupled with the admission made by DW2, will make it clear that their plea that they had signed blank stamp papers as a guarantee for vacating the tenant, who was residing in the property sold under Ex.B1 stands unsubstantiated.

However the defendants have chosen to contend that Ex.A1- agreement for sale could not be true, since the plaintiff and the first defendant have been wrongly furnished as if they have got alias names also. The plaint has been filed by the plaintiff in the name of Kamala @ Kamalammal. The defendants have contended in their written statement that the plaintiff''s name was Kamalammal and she did not have an alias name Kamala. Similarly, the first defendant''s name has been given as Krishnan @ Krishnappa. The defendants have stated that the first defendant''s name is Krishnan and he does not have an alias name as Krishnappa. Though in the written statement they have furnished the name of the plaintiff as Kamalammal and that of the first defendant as Krishnan, they are followed by the alias names. In the proof affidavit submitted by the first defendant as DW1, his name has been furnished as Krishnan @ Krishnappa and the plaintiff''s name has been furnished as Kamala @ Kamalammal. Of course he would have asserted in his evidence that he did not have an alias name Krishnappa, but during cross examination, he pleaded ignorance as to whether his name was noted as Krishnan @ Krishnappa in the proof affidavit. He has also pleaded absence of knowledge whether his name was noted as Krishnan @ Krishnappa in Exs.B1 to B12.

It is true that DW2, in her proof affidavit stated that her husband''s name was Krishnan and he did not have a name as Krishnappa. During cross examination she denied the suggestion that her husband was called as Krishnappa also. But DW3 clearly admits that the first defendant was known as Krishnappa also. In the cross examination of DW3, the following answers given by him will make it clear that the first defendant did have an alias name Krishnappa:

Vernacular Matter ommited here

Of course it is true that the name of the first defendant is noted as C.Krishnan alone in Exs.B1 to B5 and B7 to B12. Those documents have been produced solely for the purpose of showing that the first defendant''s name is C.Krishnan and he has no alias name as Krishnappa. There may be an official name and a pet or nick name, which shall not be found in the official records. Hence it cannot be assumed that the first defendant did not have an alias name as Krishnappa, especially in the light of the admission made by DW3-Prabhakar and the fact that the proof affidavit of DW1 itself has been preferred in the name of Krishnan @ Krishnappa. Even if it is assumed that the first defendant does not have an alias name Krishnappa, it will not make any difference. The stamp paper for Ex.A1 came to be purchased on 12.05.2003 at Hosur in the name of Krishnappa. The person deputed for the purchase of the said stamp paper would have mentioned the name to the stamp vendor as Krishnappa in accordance with the familiarity of such name in the area. Even otherwise, the said discrepancy alone shall not be enough to disbelieve the case of the plaintiff and hold that the case of the defendants as to the circumstances under which they were made to sign the blank stamp paper would stand established. If a proper analysis of the evidence adduced on both sides is made, it can be found that preponderance of probabilities indicate the genuineness of Ex.A1-Agreement for sale.

An attempt was made on behalf of the defendants to contend that Ex.A1-Agreement could not be true because the survey number, measurements and the electricity service connection number differ from the document under which the suit property came to be purchased by the second defendant from one Manjunath. A certified copy of the sale deed dated 19.11.1999 under which the suit property was purchased in the name of the second defendant has been produced as Ex.B2. The lineal measurement of the property purchased under the said document, on four sides have been furnished as follows:

The survey number of the said property has been noted as 287/2 in Ex.B2. Ex.B2 is the certified copy of the sale deed of the year 1999. The property sold was part of 1.78 acres comprised in S.No. 287/2. Subsequent sub divisions came to be made and the suit property came to be assigned sub division number 2B and 2C. It is pertinent to note that the adjacent property purchased by the plaintiff under the sale deed dated 22.05.2003 in S.No. 287/2 alone has been noted. It has been stated in Ex.B1 that the land had been divided into house sites and Plot No. 18 and the house constructed therein with measurements came to be sold to the plaintiff under the original of Ex.B1. Ex.A1 came to be executed nearly after three months from the date of original of Ex.B1. By that time sub division numbers came to be noticed and the same was the reason why the survey number of the suit property came to be noted as 287/2B and 2C in Ex.A1. The defendants 1 and 2 having purchased adjacent sites could have adjusted the measurements when putting up the house clubbing both the sites into one. The same could be the reason for the variation in the lineal measurement of the suit property. The defendants, who have chosen to produce a copy of the sale deed under which the suit property was purchased in the name of the second defendant as vacant site, have not chosen to produce a copy of the sale deed under which they purchased the property sold under the original of Ex.B1 to the plaintiff. Had it been produced, the re-alignment of the boundaries between the adjacent plots owned by husband and wife would have been brought to light. Hence no importance can be attached to the minor difference in the lineal measurement of the suit property. When the property is described with boundaries with some discrepancy regarding the lineal measurements and extent, then the principle boundary will prevail over the extent or measurements shall be applied. Hence the attempt made by the defendants to harp on the above said difference in the measurements cannot yield any result in favour of the defendants.

The plaintiff has made a clear plea and proved it by evidence that the defendants were doing business as building contractors and that for the said business they needed a money and that hence they entered into an agreement with the plaintiff under Ex.A1-Agreement for sale. The defendants have admitted the first part of the plea of the plaintiff that they were doing business as building contractors. They have not chosen to produce any document to show that they did not have any fund crunch at the time of alleged execution of Ex.A1-agreement for sale. They have chosen to produce Savings Bank account pass books of the first defendant as Exs.B3 and B9 respectively. Ex.B3 is the Savings Bank account passbook of the first defendant relating to the account he maintained with the Corporation Bank. Meager amount was available till the end of 2001 as credit balance. The bank account pertaining to the date of Ex.B1 and Ex.A1 have not been produced. Ex.B9 is the Savings Bank account passbook of the second defendant relating to his account with the Federal Bank. It contains entry from 04.11.2004 alone. In this account also the amount transacted were meager. Therefore, the case of the plaintiff that the defendants needed fund for their business of building contract stands established.

The property was one purchased in the name of the second defendant as a vacant site as evidenced by Ex.B2. An attempt was made to contend that the second defendant was not the owner and the fact that he also signed Ex.A1 would probablise the case of the defendants that the signatures of the defendants were obtained in blank stamp paper under the circumstances stated by them. The said contention also does not hold water in it. DW1 himself admitted that his wife did not have any income of her own and that he himself purchased the property with his own money in the name of his wife. Under such circumstances there is a possibility of the respondent claiming the same to be a property purchased by him benami in the name of his wife and his wife claiming the property to be that of her. Under the said circumstances alone the agreement should have been executed by both the defendants.

For all the reasons stated above, this court comes to the conclusion that the trial court did not commit any error or mistake in arriving at a conclusion that the suit sale agreement was genuine and it was not created using the signatures obtained in blank stamp paper as contended by the defendants. The said finding of the trial court cannot be found fault with and this court finds no reason, whatsoever, to differ from the said finding of the trial court or to interfere with the same.

Point Nos. 3 and 4:-

The plaintiff, besides making a clear plea that she has been ready and willing to perform her part of the agreement for sale, she has also contended that when she approached the second defendant and demanded for the execution of the sale deed offering to pay the balance amount of sale consideration, she was given elusive replies by the 2nd defendant by stating that her husband was out of station and only on his arrival they could execute the sale deed; that thereafter the plaintiff issued a notice under Ex.A2, which was returned with endorsement ''Refused''; that on enquiry, she came to know that the defendants were making attempts to sell the properties to other persons and that hence she was forced to file the suit for the relief of specific performance and other reliefs. Copy of the notice dated 05.07.2004 with the postal receipt has been produced as Ex.A2. The returned covers have been produced as Ex.A3 series (2 in number). Both the notices sent to the address of the defendants were returned with the endorsements "Refused". It is not the case of the defendants that the address noted in Ex.A3 are not their address or that it contained insufficient address. The very fact that they have chosen to refuse to receive the registered notice will also show the lack of bonafide on the part of the defendants. The plaintiff has made a clear plea expressing her readiness and willingness to pay the balance sale consideration and get the sale deed executed and registered in her name. She has also pleaded in the plaint that she would deposit the balance sale consideration as and when the court would direct to do so.

So far as the capacity of the plaintiff to raise funds and her readiness with the funds to pay the balance and get the sale deed executed are concerned, the defendants have not made any concrete plea that at any particular point of time that the plaintiff was not ready and willing. The plaintiff has complied with the conditions of Section 16(c) of the Specific Relief Act, 1963 by pleading her readiness and willingness and proving the same by adducing reliable evidence. Hence the trial court has not committed any error or mistake in exercising the discretion in favour of the plaintiff and granting the relief of specific performance and other reliefs as prayed for in the suit. This court finds no reason whatsoever to interfere with the judgment and decree of the trial court. There is no merit in the appeal and the same deserves to be dismissed with cost.

In the result, the appeal is dismissed with cost confirming the decree of the trial court dated 25.02.2010 made in O.S. No. 187 of 2004. Consequently, the connected miscellaneous petition is closed.