Williams vs Annamma Poulose

Sathish Ninan, J.

Challenging the dismissal of the suit for specific performance, the plaintiff is in appeal.

Ext.A1 agreement dated 09.01.2013 is sought to be specifically enforced. As per Ext.A1, an extent of 36¼ cents is agreed to be conveyed by the defendant to the plaintiff for a total consideration of ₹ 30 lakhs. The period fixed for performance is up to 09.10.2013. It is recited in Ext.A1 that an amount of ₹ 9 lakhs is paid on the date of agreement and that an amount of ₹ 15 lakhs was paid earlier on various occasions. Thus the total advance consideration is stated to be ₹ 24 lakhs. Alleging failure on the part of the defendant to perform the agreement the suit has been filed.

The original defendant died on 05.12.2013, before filing of written statement. The legal heirs were impleaded as additional defendants. The execution of Ext.A1 agreement was denied. It was contended that signed blank papers given by the defendant in connection with enhancement of the connected load to the mill situated in the property was fabricated by the plaintiff into Ext.A1 agreement for sale.

The trial court held against Ext.A1 and accordingly dismissed the suit.

I have heard learned counsel Sri.Santhosh P. Poduval on behalf of the appellant-plaintiff, and Sri.Jacob Sebastian, the learned counsel for the respondents-defendants.

The point that arises for determination is :-

“Is the finding of the trial court against the genuineness of Ext.A1, based on materials on record?”

The original defendant who is claimed to have executed Ext.A1 agreement for sale in favour of the plaintiff is none other than the plaintiff's father. There existed a saw mill in the property. The plaintiff was residing nearby. The plaintiff claims that he was running the saw mill. Though it is denied by the defendants, it probabilises his involvement in the business along with his father. The other son of the original defendant is away at Kannur. There is no case that the father was in financial constraints or in need of money. No reason is suggested as to why the father should have entered into an agreement for sale with his son. The suit was not preceded by any notice seeking performance. It is pointed out to indicate that, prior to the institution of the suit, the father had no occasion to know about the agreement. The father had after entering appearance in the suit, filed a counter to the attachment application on 04.11.2013. In the said counter he denied Ext.A1 and contended that, signed blank paper entrusted with the defendant in connection with the enhancement of the connected load for the mill must have been misused by the plaintiff.

The learned counsel for the appellant would point out discrepancy in the case of the defendant with regard to the date on which he came to know about Ext.A1 and argue that the defence set up is improbable. The stamp paper on which Ext.A1 agreement was prepared is dated 07.01.2013. It has come out in evidence that the enhancement of load was in August, 2012. Going by the evidence of DW1, the father had told him about the handing over of the blank stamp paper in September, 2013. It would suggest that the statement of the father in the counter to the attachment application that he got knowledge about the misuse of the signed papers only after the filing of the suit, is not correct, it is contended.

However, on the circumstances and evidence on record which have been adverted to by me supra, I am of the opinion that the discrepancy alleged, is not of significance. It is to be understood that, all that the defendant had contended was that signed blank paper given in connection with enhancement of the electricity load might have been misutilised by the plaintiff. That there had been such enhancement of electricity load, a couple of months prior to the date seen in Ext.A1 agreement is on record. So also, as noticed, there is probability of the plaintiff being involved in the conduct of the mill along with the father. The other son is not in station. With regard to payment of an amount of ₹ 9 lakhs on 09.01.2013, but for the recital in Ext.A1, there is no evidence. With regard to the earlier payments allegedly made, though the plaintiff relies on withdrawals from his Bank account, there is nothing to indicate that the said amounts were withdrawn to be paid to the father. PW1 himself has admitted that the mill and the machineries have not been valued and he does not know the value of the structures in the property. But the agreement includes the entire property. So also, though PW1 would claim that the stamp paper for Ext.A1 was purchased much prior to the agreement, it is seen that the stamp papers purchased were on the very date of Ext.A1. Though PW1 claimed that mediators had intervened resulting in the execution of Ext.A1, there is no pleading or proof in the said regard. None of the mediators are examined. Examination of such meditators would have been the best evidence to prove the circumstances leading to and also the execution of Ext.A1. Therefore, in the light of the totality of the evidence and circumstances it can only be concluded that the trial court was right in having held against Ext.A1 and having dismissed the suit.

The decree and judgment of the trial court warrants no interference.

Appeal fails and is dismissed.