Sri R. Mallikarjunappa vs Sri C. Channakeshava

A.S. Bopanna

The appellant herein is the plaintiff in O.S. No. 860/1998. The suit was filed seeking for a declaration that the plaintiff has become the owner of the suit schedule property based on the documents dated 18.12.1992 and 24.02.1993 and a decree be granted for specific performance by directing the defendant to appear before the Sub-Registrar etc. The Court below, after analysing the rival contentions has dismissed the suit by its judgment and decree dated 07.08.2010. The unsuccessful plaintiff is therefore before this Court in this appeal. The parties would be referred to in the same rank as assigned to them before the Court below for the purpose of convenience and clarity.

The plaintiff contends that the suit schedule property was owned by late C. Venkatarayappa who executed a WILL dated 24.04.1964 in favour of the defendant. The defendant accordingly became the absolute owner of the property and the revenue entries were entered in his name. The defendant who v/as in need of money, negotiated with the plaintiff and agreed to sell the property, entered into an agreement and finalised the transaction. The defendant informed the plaintiff to purchase the stamp paper to enable him to get the sale deed. The plaintiff accordingly purchased the stamp papers and got the typing done on the sale deed. The defendant thereafter affixed his signature and thumb impression to the sale deed on 24.02.1993 by receiving Rs. 1,40,000/-. The receipt of which was acknowledged and he agreed to receive the balance of Rs. 10,000/- at the time of registration before the Sub-Registrar. The defendant thereafter made lame excuse and postponed the registration. The plaintiff, reposing confidence in the defendant did not present the document before the Sub-Registrar. According to the plaintiff, the defendant thereafter informed him that there is heavy debt on the property and after clearing the same, he would get the sale deed registered. The defendant also put him in possession of the property and assured that the registration would be completed in due course.

The plaintiff further avers that though he had requested the defendant, he postponed the registration by stating about his mother''s illness. The plaintiff believed his assurances as he had already signed the sale deed. Though the defendant had given possession and had put the plaintiff in constructive possession of the tenanted portion, he assumed that he could collect the rents but the defendant thereafter started obstructing. However, when the defendant started resiling, a panchayath was held and he had taken six months time. The plaintiff therefore waited for six months, but when the plaintiff learnt about the defendant negotiating to sell the suit schedule property to the third parties, he once again confronted the defendant and ultimately has filed the suit since the defendant has failed to register the sale deed.

The defendant on being served with the suit summons, appeared and filed written statement denying the sale transaction as claimed by the plaintiff. The defendant has contended that he has never negotiated and received the amount nor has he asked the plaintiff to get the stamp paper. The signature and the thumb impression put by the defendant as claimed by the plaintiff is also denied. The defendant on the other hand has contended that the plaintiff is a money lender. The defendant used to take money by executing On-Demand Promissory note. After payment, though the defendant used to take back the same, the plaintiff appears to have made use of the same when it was in his custody, forged and fabricated the sale deed dated 24.02.1993 to knock-off the valuable property. In that view, the defendant has denied the signature and thumb impression as that of himself. In that regard, the defendant has adverted to the parawise plaint averments and denied the claim put forth by the plaintiff. The defendant has further contended that the suit is barred by limitation. For all the reasons stated, the defendant has sought for dismissal of the suit.

The Court below on taking note of the rival contentions has framed as many as eight issues for its consideration which are as hereunder:

In order to discharge the burden cast on the parties, the plaintiff examined himself as P.W. 1 and two witnesses were examined as P.Ws. 2 and 3. The documents at Exhs. P1 to P8 were relied on. The defendant examined himself as D.W1 and relied on the document at Ex. D1. The material issues were held against the plaintiff including the issue relating to limitation. Accordingly, the suit was dismissed.

Sri G.D. Ashwathnarayana, Learned Counsel for the plaintiff contended that the Court below was not justified in its conclusion. Though the Principles of Grant is not pressed at this stage, the suit was maintainable for the relief of specific performance. Not only there was an agreement of sale executed, a sale deed was also executed but, the defendant did not cooperate for its registration. Even in such case, a suit would be maintainable seeking for specific performance as per the declared law. The defendant denied execution and alleged that it was concocted and fabricated regarding which the burden was also on the defendant as per the issue framed. The defendant had filed application for referring the signature to the handwriting expert but, did not take it to its logical conclusion. The issue should have been proved by the defendant. When the documents are executed by the defendant, if not specific performance at least the refund would be available. The plaintiff has examined two witnesses who have spoken with regard to the transaction. Ultimately since the handwriting expert''s opinion has not seen the light of the day, it should have been held against the defendant. The plaintiff is also ready to bear half of the expenses. Hence, it is contended that the judgment of the Court below is liable to be set aside.

Sri D.P. Mahesh, Learned Counsel for the defendant however seeks to sustain the judgment rendered by the Court below. It is contended that the question of the defendant disproving the document would not arise as the primary burden. The plaintiff at the outset was required to prove the transaction and only if that burden was discharged, the other aspects would have arisen. In that regard, the very contention put forth by the plaintiff is contrary to one another regarding the alleged transaction. The very passing of consideration stated is at variance and the so-called witnesses to the alleged document have stated different date regarding the payment of sale consideration as against what has been stated by the plaintiff himself. When the payment of consideration itself is not proved, the question of sale deed being executed does not arise. The very manner in which the signature and thumb impression appears, it is evident that it is created as there is overlapping and overwriting. In fact, the plaintiff should have taken the burden to prove the signature, yet the defendant had taken steps to secure report from handwriting expert, but it was expensive. When Issues No. 1 to 4 itself are held against the plaintiff, the report of the expert would be immaterial when the pleading relating to documents and what is relied itself will show that it is fabricated. Hence, he prays that the appeal be dismissed.

In the light of the above, the following points arise for consideration,

i) Whether the plaintiff has established the passing of consideration?

ii) If the passing of consideration is proved, whether the sale deed dated 24.02.1993 should be considered as genuine and specific performance for registration should be directed?

iii) Whether the non-discharge of the burden by the defendant by securing the report of the expert Commissioner would enure to the benefit of the plaintiff?

iv) Even if all the above is held in favour of plaintiff, whether the relief is barred by limitation?

The pleading would form the basis in a civil suit and such case pleaded should be proved in accordance with law and the same cannot be at variance with each other. In that regard, it is seen that the body of the plaint does not refer to the details of the agreement dated 18.12.1992. Though the sale consideration is stated to be Rs. 1,50,000/-, the averment made is that after the sale deed dated 24.02.1993 was typed on the stamp paper, the defendant affixed his signature and thumb impression by receiving Rs. 1,40,000/- and agreeing to receive the balance of Rs. 10,000/- before the Sub-Registrar at the time of registration. Hence, according to the plaintiff, the amount of Rs. 1,40,000/- was paid on 24.02.1993 and such payment made was required to be proved. The plaintiff examined himself as PW-1 and in his affidavit evidence has stated the same thing that the amount of Rs. 1,40,000/- was paid to the defendant on 24.02.1993. Thereafter, one Sri. N.M. Munirathnam was examined as PW-2 as he was stated to be the witness to the sale agreement dated 18.12.1992 which though did not find detailed reference in the plaint has been marked as Ex. P-1. The said witness states that the sum of Rs. 1,40,000/- was paid on 18.12.1992 and that one Sri. S. Nagabhushan was also present and he also signed as witness to the said agreement. The said Sri S. Nagabhushan is examined as PW-2 and he too states about the amount being paid on 18.12.1992. The statements of the witnesses is contrary to the pleading in the plaint and also at variance to what had been stated by the plaintiff himself as PW-1.

In that light, a perusal of the document at Ex. P-1 i.e. the agreement dated 18.12.1992 has a ''money receipt'' endorsement wherein revenue stamps are affixed, which would normally not be done when the endorsement is taken on the stamp paper itself. This makes it more relevant when the signature itself is denied Then, a further perusal of the sale deed dated 24.02.1993 i.e., the document at Ex. P-2 would indicate that it contains a recital that the sum of Rs. 1,40,000/- is paid on that day in the presence of the witnesses. It is to be noticed that PW-2 is not a witness to the said document. Further what is stated is that the entire sum of Rs. 1,40,000/- was paid by cash. When there is such varied statements with regard to the payment being made wherein PW-2 stated that it was paid in his presence and when PW-2 was unable to identify the defendant though he was present in Court as noticed from his cross examination, the evidence to establish passing of consideration is insufficient. When receipt of the amount is denied, first and foremost there should have been uniform evidence as to whether it was paid on 18.12.1992 or on 24.02.1993 and on establishing the correct date, the plaintiff should have established the source and availability of the money with him on such day for payment. If really a sum of Rs. 1,40,000/- was paid when the alleged sale deed dated 24.02.1993 was signed and when the balance was only Rs. 10,000/-, it does not stand explained as to what was the difficulty to pay the entire amount after securing the defendant to the Sub-Registrar''s Office and simultaneously pay the amount. It also raises the question as to whether a vendor would sign on the sale deed when the entire sale consideration is not paid, when admittedly in the instant case, the balance of Rs. 10,000/- was still to be paid even as per the case of the plaintiff. Hence, the passing of consideration has not been satisfactorily proved. Point No. (i) is accordingly held against the plaintiff.

Insofar as seeking specific performance based on sale deed itself, the Learned Counsel for the plaintiff relied on the decisions of the Hon''ble Supreme Court in the case of Kalavakurti Venkata Subbaiah Vs. Bala Gurappagari Guruvi Reddy, and in the case of S. Kaladevi Vs. V.R. Somasundaram and Others, . In that regard, the legal position is clear that a suit seeking specific performance is maintainable, but the issue in the instant case is whether the transaction under the document is proved. As already noticed, the passing of consideration has not been proved. Even otherwise, the manner in which the documents have been brought up itself is not very convincing. If a person is able to sign, the thumb impression is normally not affixed and in any event, that would be done in the Sub-Registrar''s office on the reverse side of the stamp paper. The documents also indicate several discrepancies. The agreement (Ex. P-1) refers to the documents relating to the property and the possession of the property being given on that day i.e., 18.12.1992. The sale deed dated 24.02.1993 (Ex. P-2) once again states that the possession of the property has been given on that day i.e., 24.12.1993. If in fact the documents relating to the property had been received by the plaintiff, be it under any one of the above said documents, the same should have been produced to establish the part performance in furtherance of sale transaction but, only the extract of the assessment list is produced at Ex. P-8. The WILL under which the defendant acquired ownership is not placed on record. Even with regard to being in possession of the property there is no material. Hence, so much of discrepancies would make the documents doubtful in a circumstance where the defendant had contended that it is fabricated and it is not executed by him.

In that view, though the report of the expert is not produced, the very comparison of the admitted and disputed signatures and the thumb impression which is available on record and signatures marked on the written statement (Ex. P-9) and Vakalath (Ex. P-10) appears different to the naked eye, if compared as provided u/s 73 of the Evidence Act coupled with the other circumstances noticed above. These aspects of the matter in the background of the conclusion on Point No. (i) would lead to the situation wherein the Points No. (ii) and (iii) cannot in any case be held in favour of the plaintiff.

In that view of the matter, the Point No. (iv) does not arise for consideration. Even otherwise there is nothing brought forth to my notice to take a different view on that aspect when the issue in that regard was held against the plaintiff. For all the above said reasons I see no reason to interfere with the judgment and decree passed by the Court below.

Accordingly, the appeal is dismissed. The parties shall bear their own costs in this appeal.