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2004 DIGILAW 1567 (AP)

Adapala Venkata Ranga Rao v. Ravella Satyavathi

2004-12-30

C.Y.SOMAYAJULU

body2004
C. Y. SOMAYAJULU, J. ( 1 ) FOR the sake of convenience the parties would hereinafter be referred to as they are arrayed in the trial Court. ( 2 ) ALLEGING that the husband of the defendant entered into an agreement to sell acs. 2-50 cents out of Acs. 4-70 cents in d. No. 169 of Chadalavada Village, within the boundaries mentioned in the schedule appended to the plant (hereinafter referred to as the suit land) for Rs. 20,500/- per acre and received Rs. 36,250/- from him on 14-12-1984 and executed Ex. A1-agreement to sell the suit land in his favour as per the terms of which he has to pay the balance sale consideration of Rs. l 5,000/- on or before 30-8-1985, in default, with interest @ 15% per annum from the due date upto the date of payment and though he is always ready and willing to perform his part of the contract and pay the balance due, husband of the defendant failed to receive the balance sale consideration and execute a sale deed and had died on 15-8-1985 without executing the sale deed. Plaintiff filed the suit seeking specific performance of Ex. A1 agreement from the defendant ( 3 ) DEFENDANT filed her written statement contending that Ex. A1 agreement is a forged document, and that her husband who was a friend of the plaintiff was addicted to drink and so taking advantage of his friendship with her husband who is a drunkard, plaintiff must have brought Ex. A1 into existence to cause wrongful loss to her. Later, defendant filed an additional written statement contending that inasmuch as her husband was not the absolute owner of the suit land but only had a half share therein, as she became entitled to the remaining half share in the suit land, consequent on the death of her son, plaintiff, in any event, is not entitled to any relief. ( 4 ) BASING on the above pleadings, the trial Court framed five issues and one additional issue for trial. ( 5 ) IN support of his contention, plaintiff besides examining himself as P. W. I examined four other witnesses as P. Ws. 2 to 5 and marked Exs. A1 to A8. Defendant examined herself as D. W. 2 and three other witnesses as D. Ws. 1, 3 and 4 but did not adduce any documentary evidence. Exs. ( 5 ) IN support of his contention, plaintiff besides examining himself as P. W. I examined four other witnesses as P. Ws. 2 to 5 and marked Exs. A1 to A8. Defendant examined herself as D. W. 2 and three other witnesses as D. Ws. 1, 3 and 4 but did not adduce any documentary evidence. Exs. Xl to X6 were marked through witnesses. On the basis of the evidence adduced, the trial Court held on additional issue, which relates to the question whether defendant gave birth to a male live son on 16-11-1969 and if she became entitled to half share in the suit land due to the death of said son, held against the defendant. On Issue 1 relating to the genuineness of Ex. A1, held in favour of the defendant. Consequently on Issue 3, which relates to the question whether the plaintiff is entitled to specific performance of Ex. Al agreement of sale, held against the plaintiff and on Issue 4 relating to the entitlement of the defendant to compensatory costs, held against the defendant, and on Issue 2 relating to the question whether plaintiff is in possession of the suit land and other land measuring acs. 4-70 cents as tenant, held that Acs. 4-70 cents was let-out to the plaintiff by the husband of the defendant, and consequently on Issue 5, which relates to the relief, dismissed the suit with costs. Hence this appeal by the plaintiff. ( 6 ) THE points for consideration are: (1) Whether Ex. Al agreement of sale relied on by the plaintiff is true and valid? (2) If so, is the plaintiff entitled to specific performance of Ex. Al? ( 7 ) THE main contention of the learned counsel for the plaintiff is that since the evidence of the attestor and scribe of ex. A1 clearly establishes the due execution thereof by the husband of the defendant, non-examination of the other attestor, chandu Sambayya, who, as per the evidence of P. W. 5, is looking after the affairs of the defendant, is not of consequence, and so inference no, as was drawn by the Trial Court can be drawn against the plaintiff for non-examination of Chandu sambayya, who is supporting the defendant. It is his contention that the Trial Court, without keeping in view that it is for the vendor to decide and offer for sale the property of his choice, erroneously found against the plaintiff, for his agreeing to purchase the southern Acs. 2-50 cents in an extent of Acs. 4-70 cents. It is also his contention that the Trial Court was in error in drawing an inference against the plaintiff for his not producing his account books, without keeping in view the fact it is the specific case of the plaintiff that he does not maintain accounts. It is his contention that since the evidence of the plaintiff as P. W. I clearly shows that he sold paddy and pulses for raising the amount paid under Ex. A1, the capacity of the plaintiff to pay that amount under Ex. A1 cannot be doubted as was done by the Trial Court. It is his contention that the Court below was in error in accepting the evidence of d. W. I, handwriting expert, that the signature of the husband of the defendant on the revenue stamps was lifted and was pasted to Ex. A1, since a close and careful look at the signatures of the executant of Ex. Al would show that the signature of the executant is not entirely on the revenue stamp affixed to Ex. A1. The contention of the learned Counsel for the defendant is that since the Trial Court gave cogent reasons for its conclusion that Ex. Al is not true and genuine, there are no grounds to interfere with the judgment and decree of the Trial Court. Point No. 1: ( 8 ) SINCE the defendant denied execution of Ex. Al by her husband, the burden of proof to show that Ex. A1 is true and valid is on the plaintiff. Ex. A1 agreement of sale is written on a plain paper. The signature of the executant thereon appears on two revenue stamps of 0. 20 ps. denomination each. It contains the attestation of T. Sambasiva Rao (P. W. 2), Ch. Venkaiah, A. Pandu Ranga Rao and was scribed by A. Gopala Swamy (P. W. 4 ). The evidence on record shows that prior to ex. A1, husband of the defendant executed ex. A4 sale deed in respect of Acs. 0. 20 ps. denomination each. It contains the attestation of T. Sambasiva Rao (P. W. 2), Ch. Venkaiah, A. Pandu Ranga Rao and was scribed by A. Gopala Swamy (P. W. 4 ). The evidence on record shows that prior to ex. A1, husband of the defendant executed ex. A4 sale deed in respect of Acs. 0. 70 cents in D. No. 169 of which the suit land is a part in favour of Kum. Sunitha, minor daughter of the plaintiff, represented by the plaintiff as her guardian. The said Acs. 0. 70 cents covered by Ex. A4, is to the north of the total extent of Acs. 4. 70 cents in d. No. 169. Ex. Al relates to the southem acs. 2. 50 cents from out of Acs. 4. 70 cents in D. No. 169. The evidence on record and ex. A4 also show that while alienating the land covered by Ex. A4, husband of the defendant retained right of way to reach the remaining part of his land in D. No. 169, through the said Acs. 0. 70 cents sold to the daughter of the plaintiff. By agreeing to sell the suit land under Ex. A1, which is to the south, husband of the defendant would be having only Ac. 1. 00 cents in D. No. 169, sandwiched by the land covered by Ex. A4 on the north and land covered by Ex. A1 on the south. It is no doubt true that owner can choose to sell any part of the land of his choice, as contended by the learned counsel for the plaintiff. But since defendant, who is not the executant of Ex. A1, is disputing Ex. Al, and since the alleged executant of Ex. A1 is not alive genuineness of Ex. A1 has to be considered on the basis of probabilities. Would any ordinary prudent man retain the middle portion of the property and alienate the property on its two sides would be the question to be answered in this case. Normally the answer to that question would be an emphatic no . The other improbability is the plaintiff leaving the property adjacent to the property covered by Ex. A1, agreeing to purchase the property at the other end. Having purchased the northern Ac. 0. Normally the answer to that question would be an emphatic no . The other improbability is the plaintiff leaving the property adjacent to the property covered by Ex. A1, agreeing to purchase the property at the other end. Having purchased the northern Ac. 0. 70 cents in the name of his daughter would opt to, as an ordinary prudent man, plaintiff would purchase the property adjacent to it, by persuading the vendor to do so when he offered to sell some more portion in the same survey number. It is not the evidence of the plaintiff that he tried to persuade the husband of the defendant to sell the land adjacent to the land covered by Ex. A4 and that he (the vendor) refused. Since a vendor by selling away the land on two sides and retaining the middle portion, without retaining a right of way, would be purchasing trouble, greater degree of proof should be required for holding that Ex. A1 is true. ( 9 ) THE evidence of D. W. 3, Dr. Pardhasaradhi shows that husband of the defendant (the executant of Ex. Al) was addicted to drink, and was a diabetic, and was under his treatment, and was staying in a room in his house for about a year, and that the plaintiff, as a friend of the husband of the defendant, used to come to his house along with the husband of the defendant. That the husband of the defendant, and the plaintiff were friends, is also evident from the fact that husband of the plaintiff figured as an attestor to Ex. A5, gift deed executed by P. Saraswathamma, sister of the plaintiff, in favour of Sunitha lakshmi Samrajyam. Significantly, Chandu venkaiah also figured as an attestor to exs. A4, A5 and Ex. Al also. The evidence on record shows that the defendant filed a suit for cancellation of the original of ex. A4 sale deed, on the ground that it was obtained fraudulently by the plaintiff. It is significant to note that Exs. A4 and A3 were executed on the same day i. e. , on 29-12-1984, and that Chandu Venkaiah figured as an identifying witness, both in exs. A4 and A5. Another interesting feature is Saraswathamma, the executant of ex. A5, happened to be one of the two identifying witnesses of the executant of the original of Ex. A4 and A3 were executed on the same day i. e. , on 29-12-1984, and that Chandu Venkaiah figured as an identifying witness, both in exs. A4 and A5. Another interesting feature is Saraswathamma, the executant of ex. A5, happened to be one of the two identifying witnesses of the executant of the original of Ex. A4 i. e. , the husband of the defendant The fact that Chandu Venkaiah is an attestor and identifying witness in both Exs. A4 and A5 shows that he is a close friend of the plaintiff. The reason for plaintiff not examining Chandu Venkaiah who also happens to be an attestor to Ex. Al is not explained by the plaintiff. Non- examination of Chandu Venkaiah is one of the circumstances against the plaintiff. ( 10 ) THE evidence of P. W. 2 shows that he is related to the plaintiff and is working as an agricultural coolie on daily wages and attends the fields of P. W. I for coolie work and that his father resides by the side of the house of P. W. 1. So, it is clear that P. W. 2 is interested in the plaintiff, and so he supports the plaintiff. ( 11 ) AMMISETTI Panduranga Rao, who affixed his signature as an attesting witness in Ex. Al without number, was not examined, and reasons for not examining him are also not explained by the plaintiff. Even assuming that plaintiff won over chandu Sambaiah, as stated by P. W. 5 (a plaintiffs witness) reasons for not examining the other independent attesting witnesses to ex. A. 1 i. e. Chandu Venkaiah and A. Pandu Ranga Rao are not explained by the plaintiff. This, as stated earlier, is a circumstance against the plaintiff. ( 12 ) THE evidence of P. W. 4, scribe of ex. A. 1, shows that he is a professional document writer and that the sister of the plaintiff is the wife of his younger brother, and that he scribed all the documents of the plaintiff. So, it is clear that he is very much interested in the plaintiff. As a professional document writer, he is expected to know that an agreement of sale requires to be engrossed on a non-judicial stamp. During cross-examination he stated that he asked the plaintiff to bring two conquest papers and two revenue stamps for a total amount of 0. 40 ps. As a professional document writer, he is expected to know that an agreement of sale requires to be engrossed on a non-judicial stamp. During cross-examination he stated that he asked the plaintiff to bring two conquest papers and two revenue stamps for a total amount of 0. 40 ps. or 0. 50 ps. , knowing that an agreement of sale has to be engrossed on a non-judicial stamp wroth Rs. 5/- at that time. At this stage, it would be useful to refer to the evidence of D. W. 1, the expert who examined Ex. Al and gave his Ex. X. 4 opinion, which show that two revenue stamps containing parts of the genuine signatures were lifted from some other documents and were affixed to Ex. A. 1 and the missing parts of the signature were added later. He gave the reasons for his conclusion. I find no grounds to reject the evidence of d. W. 1. If an agreement is engrossed on a non-judicial stamp, by affixing revenue stamps containing the signature of the deceased husband of the defendant thereto, it would give raise to suspision because no ordinary prudent man would use non-judicial stamp and revenue stamp for executing a document. So, obviously with a view to make use of the revenue stamps containing the signatures of the deceased husband of the first defendant, plaintiff must have sought the help of P. W. 4 and P. W. 2 to bring Ex. Al into existence. That is so would be evident for the following reasons also. ( 13 ) AS rightly observed by the Trial court, the letter r in the English in the signature of the deceased, husband of the defendant, which is to the left of the revenue stamps, is at a long distance from the revenue stamps and a close and careful look at the letters shows that yethawamu (Telugu word) of va (Telugu word) are not connected with the remaining part of the signature found on the revenue stamps. Therefore, the possibility of lifting the revenue stamps containing a part of signature of the deceased husband of the defendant, and pasting them to Ex. A. 1 cannot be ruled out. That apart, normally, when an agreement of sale is executed, on more than one page the executant affixes his signature to all the pages. But in Ex. Therefore, the possibility of lifting the revenue stamps containing a part of signature of the deceased husband of the defendant, and pasting them to Ex. A. 1 cannot be ruled out. That apart, normally, when an agreement of sale is executed, on more than one page the executant affixes his signature to all the pages. But in Ex. A1 agreement, which is in two pages, there is no signature of the executant at the bottom of first page. Obviously, plaintiff did not take the risk of forging the signature on the first page and was satisfied with lifting the revenue stamps containing the signature of the deceased-husband of the defendant and pasting it on the second page, and must have supplied the missing parts of the signature and so I find no grounds to interfere with the finding of the Trial Court that Exa. l is not a true and genuine document The point is answered accordingly. Point No. 2: ( 14 ) IN view of my finding on Point 1, it is not really necessary to decide this point. But, I wish to give my finding on this point also. ( 15 ) AS rightly observed by the Trial court, the evidence of P. W. I relating to payment of Rs. 36,250/- on the date of ex. Al, is difficult to be accepted because p. W. I, while referring to Ex. A. 4 clearly stated that since he was not having the balance amount due thereunder he did not pay the entire amount of Rs. 10,150/- as per Ex. A4 on 25-11-1984. Ex. Al is dated 14-12-1984 i. e. about three weeks after 25-11-1984. Plaintiff obtained the original of ex. A4 from the husband of the defendant by paying Rs. 8,150/- on 29. 12. 1989. So, unless he was having Rs. 45,000/- in december 1984 he could not have paid rs. 36,250/- on 14-12-1984 under Ex. A1 and Rs. 8,150/- on 29-12-1984 under the original of Ex. A4. The evidence of plaintiff as P. W. I that by sale of paddy and pulses he raised that amount cannot be believed because his evidence as P. W. I does not inspire confidence to show that he was having that much of paddy and pulses with him by that date. It should be remembered that by 1984, the price of paddy was around Rs. 100/- to Rs. 150/- per bag. It should be remembered that by 1984, the price of paddy was around Rs. 100/- to Rs. 150/- per bag. As per the evidence, he sold 200 bags of paddy cannot be believed because even according to him besides Acs. 4. 70 cents belonging to the husband of the defendant under his cultivation, as lessee, he had about Ac. 1. 00 of land. So, from out of 6 to 7 acres of land plaintiff could not have realized 200 bags of paddy and pulses to raise an amount of rs. 45,000/ -. Therefore, the finding of the Trial Court that the plaintiff was unable to establish that he was having necessary resources to pay Rs. 36,250/-, needs no interference by this Court and so it cannot be said that "plaintiff was having necessary resources to be ready and willing to perform his part of the contract. The point is answered accordingly. ( 16 ) IN view of my findings on the points for consideration the appeal is dismissed, but in the circumstances, without costs.