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1990 DIGILAW 46 (KER)

Ahamad v. Gangadharan

1990-01-30

VARGHESE KALLIATH

body1990
Judgment :- 1. This is an appeal filed by the plaintiffs. The suit was one for specific performance of the agreement. The case of the plaintiffs is that the defendant executed an agreement to sell an item of property scheduled in the plaint for consideration of Rs. 15,000/-. The plaintiffs gave an advance of Rs.5300/-. Ext. A1 is the agreement. It is dated 13-2-1978. The plaintiffs further submit that when the agreement was executed the defendant handed over Exts.A2, A3 and A4. Ext.A2 purchase certificate is dated 23-10-1975 (the title to the property), Exts.A3 and A4 are receipts obtained by the defendant for payment of compensation and interest on the amount of compensation. The time stipulated in the agreement for the performance of the contract was one year from the date of the agreement. 2. The defendant said that the signature and the thumb impression in the document Ext. A1 are that of the defendant; but he has not executed the agreement in so far as the signature and the thumb impression were given in that stamp paper when it was a bare barren stamp paper. Further the defendant submitted that he has received a loan of Rs.1000/- from the second plaintiff and as a security for the loan amount he had handed over Exts.A2, A3 and A4. He said that though Ext.A2 shows that the defendant has got title to the property, actually he has no title to the property and the title now stands vested with the mother and that the mother has obtained the purchase certificate Ext.B1 dated 24-12-1975. 3. The court below considered the evidence in the case and came to the conclusion that Ext.A1 is not a genuine document and on the basis of which no relief can be granted to the. plaintiffs and dismissed the suit. The question that has to be considered in this appeal is whether Ext.A1 is a document which can be relied on for granting any relief to the plaintiff. When I say any relief, I mean that even if the plaintiffs are not entitled to specific performance of the agreement whether the plaintiff is entitled to a lesser relief of a decree for the return of the amount given by way of advance. In fact the plaintiff has made an alternative prayer for this relief. When I say any relief, I mean that even if the plaintiffs are not entitled to specific performance of the agreement whether the plaintiff is entitled to a lesser relief of a decree for the return of the amount given by way of advance. In fact the plaintiff has made an alternative prayer for this relief. The case of the defendant is that the second plaintiff has given a loan of Rs.1000/- to the defendant after receiving Exts.A2, A3 and A4. It was thus after the payment of Rs.1000/- by the second plaintiff, he went to the Ration Shop of the defendant with a blank stamp paper and requested the defendant to put his signature and thumb impression on the blank stamp paper and the defendant obliged the plaintiff by acceding to the request of the plaintiff. Further, after obtaining the signature and thumb impression on the blank stamp paper the plaintiff got the assistance of his scribe, who has been examined in this case as PW-2 and got the document written, which has been produced as the stereobate of this suit. Counsel for the respondent submitted before me that when the execution of the document is denied, it is true, that even if the signature in the document is that of the defendant, if the defendant pleads that the signature was put on a blank paper it amounts to denial of the execution of the document. In that way really this is a case of denial of the execution of the document. And so the counsel submitted that the entire burden is on the plaintiff to prove that the document has been executed by the defendant. It is true that in a case where there is a denial of the execution of the document the plaintiff has got the obligation to discharge the burden of proof. How and in what manner that burden of proof can be discharged is a question depending upon the facts of each case. 4. The court is bound to take note of the circumstance that it is not normal human conduct to give signed papers with other people, particularly to persons who cannot have any occasion to get such signed papers. It is more unusual to give signed blank stamp papers with other persons. 4. The court is bound to take note of the circumstance that it is not normal human conduct to give signed papers with other people, particularly to persons who cannot have any occasion to get such signed papers. It is more unusual to give signed blank stamp papers with other persons. In such a circumstance I am of the view that if the defendant pleads that he has left a signed blank stamp paper with the plaintiff he has got a duty to explain satisfactorily before the court what prompted him to do such an act, which, according to me, is not a normal human conduct. This aspect of the matter has been very plainly and rightly stated by a Division Bench - Vivian Bose and Puranik JJ. in AIR 1938 Nagpur 152 - Dalchand Mulchand and others v. Hasanbi w/o Ali Razakhan and others. I feel that it is apposite to quote what the Division Bench has said: "The initial burden of proving execution of a document when it is denied is upon the person alleging execution. But if nothing else is known then the mere fact that a document is admitted to bear a certain signature and that it comes from proper custody ought to be enough to raise an inference that it was signed with the intention of execution. This inference arises in India directly from S.114, Evidence Act. Persons do not ordinarily sign documents without intending to execute them: that is not the common course of human conduct, nor vet the common course their public or private business. Consequently if any person wants to rely on an exceptional circumstance, if he wants to show that in some particular instance the ordinary rule was abrogated surely he must prove it and thus the burden shifts on him". (emphasis added). 5. I feel that in this case what is stated in the last part of the quotation squarely applies. It means that the burden has shifted on the shoulders of the defendant, when he has said that he has left a blank stamp paper with his signature and thumb impression with the plaintiff. No peculiar circumstance has been brought out in this case. The defendant is aged 27 at the time when he was examined as a witness. There is no dispute that he is conducting a Ration Shop. No peculiar circumstance has been brought out in this case. The defendant is aged 27 at the time when he was examined as a witness. There is no dispute that he is conducting a Ration Shop. In his evidence he has not said what is the reason for giving a blank stamp paper with his signature and thumb impression to the plaintiff. The other circumstance also has to be noted. What the defendant wanted is only Rs.1000/- and he got it when he has given as security Exts.A2, A3 and A4 and even according to the defendant the stamp paper was given fifteen days thereafter. This circumstance only militates against his case. Further, it has to be noted that the defendant has no real title over the property and he has obtained Ext.A2, which is not a very correct and straight forward action on the part of the defendant. He has told the court that the real title now vests with the mother and the mother got a purchase certificate. So the defendant was capable of persuading the plaintiff to part with Rs.1000/- to the defendant on a false security, Exts.A2, A3 and A4. This conduct of the defendant also can be taken note of when he woodenly and vacuously states that he has left a blank signed stamp paper with the plaintiff. 6. Of course when execution is denied the plaintiff has got the initial burden to prove the execution in order to discharge his burden. The plaintiff has examined himself, the scribe and one attestor and also produced the document Ext. A1. 7. Counsel for the respondent submitted that a reading of Ext. A1 itself is sufficient to disbelieve the case of the plaintiff. He has pointed out that in the document it is stated that possession also has been handed over on the date of execution of the document and that fact was not established before the court. I cannot say this is a circumstance which can be relied on by the defendant. A decision by a civil court in a cause litigated before it has to be given on the probabilities of the case. I have to assess the probabilities of the case and in my assessment, I think Ext. A1 can be relied on though I am not inclined to give a decree for specific performance in this case. A decision by a civil court in a cause litigated before it has to be given on the probabilities of the case. I have to assess the probabilities of the case and in my assessment, I think Ext. A1 can be relied on though I am not inclined to give a decree for specific performance in this case. I decline to give a decree f or specific performance for the reason that it is only a discretionary remedy and that this is not a fit case where that discretionary remedy can be given to the plaintiff. The only relief I am granting in this case is a decree directing the defendant to pay the advance amount received by the defendant. So in the result I decree the suit directing the defendant to pay an amount of Rs.5300/- with interest at 6% per annum from the date of suit. Appeal is disposed of as above. No order as to costs.