Judgment :- SHORT EPISODE: The unsuccessful plaintiff in O.S.No.45 of 1989 on the file of the Subordinate Judge, Pithapuram preferred the present appeal. The defendant in the said suit is the respondent in the present appeal. Appellant as plaintiff instituted the said suit praying for the relief of specific performance of agreement of sale, dated 25-01-1987, and also the alternative relief of refund of Rs.40,700/- with interest and for other appropriate reliefs. The relief portion had been amended by an order, dated 03-11-1993, made in I.A.No.607 of 1993, whereunder, specifically, relief had been prayed for directing the defendant to accept the balance of sale consideration of Rs.9300/- and register the sale deed and to deliver possession and in the event of failure on the part of the defendant to comply with such direction, the plaintiff to get the same registered through due course of law and to recover possession. 2. The learned Subordinate Judge, Pithapuram in the light of the respective pleadings of the parties recorded the evidence of P.Ws.1 to 5, D.Ws.1 to 5, and marked Exs.A1 to A10 and also Exs.C1 to C10 and after recording reasons came to the conclusion that the appellant-plaintiff is not entitled to the reliefs prayed for and accordingly dismissed the suit directing the parties to bear their own costs. Hence, the present appeal by the unsuccessful plaintiff. CONTENTIONS OF SRI RAMANA RAO: 3. Sri Ramanarao, learned counsel representing the appellant-plaintiff, had taken this Court through the oral and documentary evidence available on record and also the findings recorded by the trial Court and would maintain that the trial Court totally erred in dismissing the suit despite the oral and documentary evidence available on record which would clearly establish the execution of the agreement of sale in question by the defendant. The learned counsel also would maintain that the payment endorsements also had been duly proved in the light of the evidence of P.Ws.1 to 3 as well. Learned counsel also specifically pointed out that the very fact that Exs.A9 and 10 also had been delivered would go to show that Ex.A6 is a genuine transaction. The learned counsel also would maintain that the payment endorsements also had been duly proved in the light of the evidence of P.Ws.1 to 3 as well. Learned counsel also specifically pointed out that the very fact that Exs.A9 and 10 also had been delivered would go to show that Ex.A6 is a genuine transaction. Further, the learned counsel specifically pointed out that the witnesses were not cross-examined by the counsel representing the respondent-defendant before the trial Court and hence, in view of the fact that the evidence deposed by those witnesses in chief-examination had been left unchallenged and could not be discredited in any way whatsoever. Automatically the appellant as plaintiff is entitled to the reliefs prayed for and even the matter negating the reliefs cannot be sustained. 4. Learned counsel in all fairness would maintain that it is no doubt true that the parties are close relatives but by that itself the very transaction cannot be viewed with suspicion even if it is a case of either plea of fraud or a case of plea of misrepresentation. The burden is on the respondent-defendant to establish the same and in the absence of any acceptable evidence in this direction in the light of the clear evidence available relating to execution of Ex.A6, the appellant-plaintiff is bound to succeed. Learned counsel also pointed out to the inconsistent and conflicting stands taken by the respondent as defendant. He also pointed out to the opinion of the expert-Ex.C1 and further pointed out that D.W.1 herself admitted the signature in Ex.A6. He also made certain submissions not relevant to D.W.2 and further pointed out the signatures of D.W.2-husband of the defendant on Exs.A7 and 8 and this would also probablize the stand taken by P.W.1 in relation to Ex.A6. Ultimately, the learned counsel would conclude that in the light of the facts and circumstances, the decree and judgment of the trial Court to be set aside and the relief of specific performance to be granted in favour of the appellant as plaintiff. CONTENSIONS OF SRI S.SUBBA REDDY: 5. Sri S. Subba Reddy, learned counsel representing the respondent-defendant, in all fairness would maintain that it is true that P.Ws.2 to 4 were not cross-examined and this evidence had been left unchallenged. CONTENSIONS OF SRI S.SUBBA REDDY: 5. Sri S. Subba Reddy, learned counsel representing the respondent-defendant, in all fairness would maintain that it is true that P.Ws.2 to 4 were not cross-examined and this evidence had been left unchallenged. However, the learned counsel would maintain that the evidence of P.W.2 is available relating to the payment of Rs.500/- as advance and the evidence of P.W.3 even relating to payment endorsements being vague and in the light of such evidence it cannot be taken that the payment endorsements as such had been proved by any acceptable evidence. In this regard, the findings of the trial Court cannot be found fault. While further elaborating his submissions the learned counsel also would maintain that it is highly improbable that D.W.1 would have accepted for selling the property at such a low sum. The evidence available on record is clear that the land in question is of higher value. When that being so, the discretion exercised by the trial Court cannot be found fault, especially in the light of the fact that if the decree for specific performance to be made it would amount to conferring unfair advantage on the plaintiff and serious disadvantage on the part of the defendant, and this cannot be permitted. The learned counsel also relied on certain decisions to substantiate his submissions. 6. Heard learned counsel on record. Perused the oral and documentary evidence available on record and the findings recorded by the trial Court as well. 7. For the purpose of convenience the parties hereinafter would be referred to as plaintiff and defendant as shown in O.S.No.45 of 1989 on the file of the Subordinate Judge, Pithapuram. AVERMENTS MADE IN THE PLAINT: 8. The plaintiff pleaded in the plaint that on 25-01-1987 the defendant has executed a possessory sale agreement in favour of the plaintiff thereby agreeing to sell an extent of Ac.3.20 cents of dry land of Moolapeta village (which is more elaborately described in the schedule annexed to this plaint) to the plaintiff for consideration of Rs.50,000/- ( rupees fifty thousand only) and the same was duly attested. 9. At the time of the said agreement, the plaintiff has paid an amount of Rs.500/- (rupees five hundred only) to the defendant the payment of part of the sale consideration and the defendant has handed over the possession of the notice schedule land to the plaintiff. 9. At the time of the said agreement, the plaintiff has paid an amount of Rs.500/- (rupees five hundred only) to the defendant the payment of part of the sale consideration and the defendant has handed over the possession of the notice schedule land to the plaintiff. It is thereby agreed that the balance sale consideration of Rs.49,500/- (rupees forty nine thousand and five hundred only) to be paid by the plaintiff, by about 3 months time, and that the defendant would get the transaction registered at the plaintiff's expenses. Since then, the plaintiff is enjoying the plaint schedule land with exclusive possession. 10. Subsequently on 05-04-1987 the plaintiff has paid Rs.34,500/-(rupees thirty four thousand and five hundred only) to the defendant towards the payment of part of the balance sale consideration and got it endorsed on the sale agreement deed dated 25-01-1987. At that time, it is agreed that the balance of sale consideration of Rs.15,000/- (rupees fifteen thousand) has to be paid at the time of registration. 11. Again on 08-05-1998 the plaintiff has paid Rs.5700/- (rupees five thousand and seven hundred only) to the defendant towards the payment of the part of the balance sale consideration and got it endorsed on the sale agreement deed dated 25-01-1987. At that time it is agreed that the balance sale consideration of Rs.9300/- (rupees nine thousand three hundred only) has to be paid by the plaintiff at the time of registration. 12. Subsequently, on getting ready with the balance sale consideration of Rs.9300/- (rupees nine thousand three hundred only) the plaintiff has demanded the defendant several times to execute and register a regular sale deed on due stamp papers, but the defendant postponing the matter on one pretext or the other. 13. Recently, the plaintiff came to know that the defendant is trying to alienate the agreement schedule land illegally without any manner of right. Immediately, the plaintiff has got issued a registered legal notice demanding the defendant for the specific performance of the sale agreement dated 25-01-1987 thereby intimating that he is ready and willing to perform his part of the contract i.e., to pay the balance sale consideration of Rs.9300/-. But, the defendant did not give any reply to the said legal notice nor did she comply with the plaintiff's demand. But, the defendant did not give any reply to the said legal notice nor did she comply with the plaintiff's demand. "after filing of the suit having connived with Gopisetty Mulaswamy the defendant obstruct from making payment of the value of standing Casuarina trees purchased by Gopisetty Mulaswamy, who got cut and removed from the plaint schedule property and also the defendant to her henchman stealthily removed ground nut crop got planted by plaintiff. The defendant is contending in her written statement that she is in possession. Therefore, the plaintiff prays for recovery of possession of the plaint schedule property also along with other reliefs in the suit". (amended as per the orders in I.A.607 of 1993 dated 03-11-1993 by the Hon'ble Court). 14. Even now, the plaintiff is ready and willing to perform his part of the above said sale agreement i.e., to pay the balance sale consideration of Rs.9300/- to the defendant. In fact, to show his readiness and willingness, the plaintiff is herewith depositing the balance sale consideration of Rs.9300/- into the Court to get the specific performance of the sale agreement dated 25-01-1987. Hence, the suit. AVERMENTS MADE IN THE WRITTEN STATEMENT: 15. The defendant filed written statement with the following submissions. It was pleaded in paragraph No.2 that the allegation that on 25-01-1987 the defendant agreed to sell the plaint schedule land with Casuarina tope for Rs.50,000/- and executed a possessary agreement of sale in favour of the plaintiff is not true. The defendant never agreed to sell the land to the plaintiff. She offered to sell the Casuarina tope of 4 years of age to the villagers of Moolapeta and to another outsiders of the village. The plaintiff's father Venkata Rao came forward to purchase the Casuarina tope for Rs.50,000/. As he is no other than the brother of the defendant, she agreed to sell the tope alone. Then the plaintiff's father Venkatarao obtained a signature of the defendant on the blank paper with stamps affixed and two more signatures on another blank unfilled white paper. The defendant in good faith and confidence on the said Venkatarao as he is her brother signed on the said papers at his instance. At that time he paid Rs.500/- only to the defendant towards the part payment of the cost of the Casuarina tope. The suit agreement is a forged one. The defendant in good faith and confidence on the said Venkatarao as he is her brother signed on the said papers at his instance. At that time he paid Rs.500/- only to the defendant towards the part payment of the cost of the Casuarina tope. The suit agreement is a forged one. The defendant did not execute any agreement in favour of the plaintiff. The alleged endorsements thereon are also forged and false. 16. Later after cutting and removing the Casuarina tope within three months the said Venkatarao paid balance of the value of the crop i.e., Rs.49,500/- to the defendant. Thus the said Venkatarao got cut and removed the entire Casuarina tope in the plaint schedule land and made good of it. The defendant understood that the said Venkatarao realized an amount of Rs.52,000/- as the crop was excellently good. At the time of selling away the Casuarina tope and realizing its value the defendant and her husband are got in good terms and so she had no independent advice. As the said crop was ripe and would yield good results, the defendant sold the same. 17. There is no contract between the plaintiff and the defendant. The defendant did not execute the agreement of sale in favour of the plaintiff as alleged. The defendant agreed to sell away the crop alone but not the land to the father of the plaintiff and not to the plaintiff as alleged. The plaintiff was not present either at that time or at the time of payment of Rs.49,500/- by the said Venkatarao to the defendant. The other allegations that on 05-04-1987 a sum of Rs.34,500/- and on 08-05-1988 another sum of Rs.5700/- was paid by the plaintiff to the defendant and got endorsements written on the alleged agreement are not true. The said endorsements are also forged. The plaint schedule property was not delivered to the plaintiff as alleged. The plaint schedule property is now in the absolute possession and enjoyment of the defendant alone and not otherwise. The allegations to the contra are all false and concocted. The defendant has grown again Casurina tope with her money in the plaint schedule land. 18. Having received the suit notice, the defendant disputed with the said Venkatarao and she was told that the said signed white papers are torn into pieces. Believing the said representation the defendant kept quiet. The allegations to the contra are all false and concocted. The defendant has grown again Casurina tope with her money in the plaint schedule land. 18. Having received the suit notice, the defendant disputed with the said Venkatarao and she was told that the said signed white papers are torn into pieces. Believing the said representation the defendant kept quiet. ISSUES AND ADDITIONAL ISSUES SETTLED BY THE TRIAL COURT: 1. Whether the suit agreement dated 25-01-1987 is true, valid and binding on the defendant? 2. Whether the endorsements on the agreement dated 25-01-1987 are forged? 3. Whether there is no contract to sell the plaint schedule land to the plaintiff? 4. Whether the plaintiff is in possession of the plaint schedule land? 5. Whether the plaintiff is entitled for specific performance of contract as prayed for? 6. Whether the plaintiff is entitled for the alternative relief of rend of Rs.40,000/0 with interest at 24%? 7. Whether the plaintiff is entitled for the un-linquidated damaged? 8. To what relief? EVIDENCE AVAILABLE ON RECORD: APPENDIX OF EVIDENCE WITNESSES EXAMINED For plaintiff: For defendant: P.W.1: Burra VenkataKondalarao D.W.1: Kotipalli Manikyalamma P.W.2: Ammu Seshagirirao D.W.2: Vaddi Daveedu P.W.3: Chinni Bhaskararao D.W.3: Kotipalli Venkataramana P.W.4: Vaddi Dasulu D.W.4: Kakada Samuel. P.W.5: S.C. Lohia D.W.5: Singampalli Pedakammaraju DOCUMENTS MARKED FOR PLAINTIFF Ex.A1/31-10-1989: Office copy of the registered notice got issued by the plaintiff through his advocate to the defendant. Ex.A2/-- : Postal receipt. Ex.A3/25-10-1991 : Photostat copy of registered notice got issued by the plaintiff through his counsel to the defendant and another Moolaswamy. Ex.A4/29-10-1991 : Postal acknowledgement of the defendant. Ex.A5/01-11-1991 : Postal acknowledgment of G.Moolaswamy. Ex.A6/25-01-1987 : Agreement of sale executed by the defendant in favour of the plaintiff for Rs.50,000/- Ex.A7/05-04-1987 : Payment endorsement for Rs.34,500/- Ex.A8/08-05-1988 : Payment endorsement for Rs.34,500/- Ex.A9/07-09-1978 : Will executed by Tangella Narasamma, w/o Venkanna of Mulapeta village. Ex.A10/09-08-1972 : Will executed by Burra Kondayya, s/o Govindu of Mulapeta. DOCUMENTS MARKED FOR DEFENDANT: NIL. DOCUMENTS MARKED THROUGH COMMISSIONER Ex.C1/17-01-1994: Opinion of handwriting Expert. Ex.C2/ : Signature of P.W.5 in Ex.C1. Ex.C3/ : Negatives. Ex.C4/ : -do- Ex.C5/ : -do- Ex.C6/ : -do- Ex.C7/ : -do- Ex.C8/ : -do- Ex.C9/ : -do- Ex.C.10/ : -do- FINDINGS RECORDED BY THE TRIAL COURT IN A NUTSHELL: 19. DOCUMENTS MARKED FOR DEFENDANT: NIL. DOCUMENTS MARKED THROUGH COMMISSIONER Ex.C1/17-01-1994: Opinion of handwriting Expert. Ex.C2/ : Signature of P.W.5 in Ex.C1. Ex.C3/ : Negatives. Ex.C4/ : -do- Ex.C5/ : -do- Ex.C6/ : -do- Ex.C7/ : -do- Ex.C8/ : -do- Ex.C9/ : -do- Ex.C.10/ : -do- FINDINGS RECORDED BY THE TRIAL COURT IN A NUTSHELL: 19. The trial Court on appreciation of the evidence available on record, the evidence of P.Ws.1 to 5 and D.Ws.1 to 5, Exs.A1 to A10 and Exs.C1 to C10, recorded the findings in detail and came to the conclusion that the evidence relating to the delivery of possession and dispossession being highly insufficient the same had not been established by the plaintiff and the possessory agreement-Ex.A6 was disbelieved and the specific plea taken in the defence had been upheld and accordingly the relief of specific performance had been negatived and also recorded further findings relating to the alternative relief of refund and came to the conclusion that in the facts and circumstances such relief also cannot be granted and ultimately dismissed the suit. Aggrieved by the same, the present appeal had been preferred. 20. In the light of the submissions made by Sri Ramanarao, learned counsel representing the appellant-plaintiff, and Sri S.Subba Reddy, learned counsel representing the respondent-defendant, the following points arise for consideration in this appeal: 1. Whether the findings recorded by the trial Court negativing the relief of specific performance be confirmed or liable to be set aside in the facts and circumstances? 2. Whether the appellant-plaintiff is entitled to the alternative relief of the refund prayed for in the facts and circumstances? 3. If so, to what relief the parties would be entitled to? POINT Nos.1 and 2: 21. For the purpose of convenience Point Nos.1 and 2 are being dealt with together. As already specified above, the suit itself was instituted praying for the relief of specific performance of agreement of sale, dated 25-01-1987, marked as Ex.A6 and in the alternative for the relief of refund of Rs.40,700/- with interest and for other appropriate reliefs. The respective pleadings of the parties, the issues settled by the trial Court, the oral and documentary evidence available on record and also the findings recorded by the trial Court in a nutshell had already been referred to above. 22. The respective pleadings of the parties, the issues settled by the trial Court, the oral and documentary evidence available on record and also the findings recorded by the trial Court in a nutshell had already been referred to above. 22. The plaintiff examined himself as P.W.1 who had deposed that the defendant is his paternal aunt, and he filed the suit for the relief of specific performance of agreement of sale for an extent of Ac.3.20 cents of Moolapeta village covered by patta Nos.35 and 65 and survey Nos.65/4 and 68/1. P.W.1 also deposed that he purchased the plaint schedule property for Rs.50,000/- on 25-01-1987 and he paid an advance of Rs.500/- and obtained the agreement of sale. On the date of the agreement of sale, he was put in possession of the property as per the agreement of sale. The balance of sale consideration is to be paid within three months from the date of sale agreement. P.W.1 also deposed that on 05-04-1987 he paid Rs.34,500/- in part satisfaction of the sale consideration and obtained an endorsement on the reverse of the agreement of sale on 08-05-1988. He paid Rs.5700/- and obtained an endorsement to that effect on the reverse of the agreement of sale. Burra Baburao and Ammu Seshagirirao are the attestors of the said agreement of sale and Kotipalli Venkataramana and Kotipalli Suryaprakasarao are the witnesses for the first payment endorsement. Koduri Rambabu and Kotipalli Venkataramana are the witnesses for the second payment endorsement. One Chinni Bhaskararao was the scribe of the agreement of sale and also the payment endorsements. P.W.1 also deposed that about two months after the second payment endorsement he approached the defendant with the balance sale consideration of Rs.9300/- and requested her to execute a registered sale deed in his name. She did not execute any sale deed. Then, he got issued a registered lawyer's notice, dated 31-10-1989, which is marked as Ex.A1. Ex.A2 is the postal receipt. The defendant had not chosen to give any reply. 23. P.W.1 also deposed that he has been always ready and willing to perform his part of the contract and he deposited the balance of sale consideration into the Court. Hence, he prayed for appropriate reliefs. This witness also further deposed that his father was alive by the date of Ex.A1 and he is the only son. 23. P.W.1 also deposed that he has been always ready and willing to perform his part of the contract and he deposited the balance of sale consideration into the Court. Hence, he prayed for appropriate reliefs. This witness also further deposed that his father was alive by the date of Ex.A1 and he is the only son. P.W.1 and his father were living jointly and his father died in the year, 1991. At the time of Ex.A1 his father was present. There is a Casuarina tope at the time of his taking possession of the land. P.W.1 cut away the trees over the land and raised Casuarina garden in the land. After planting Casuarina plants he sold away the plants to Gopisetti Mulaswamy. For realizing the usufruct for Rs.30,000/- he had been paying the amount. He stated that the defendant instructed him to appropriate the said amount as she was indebted to him. After he vacated the land P.W.1 raised groundnut crop that was cut and carried away by the defendant with the assistance of her man. Then he got a notice issued to the defendant and Moolaswamy. Ex.A.3 is the office copy of the notice. Exs.A4 and 5 are the postal endorsements. He had also gave a report to the police. P.W.1 also deposed that from the date of removal of the groundnut crop the defendant has been in possession and enjoyment of the said land. The suit schedule land is of an extent of Ac.3.20 cents. Ex.A6 is the agreement of sale in his favour. Under the agreement of one occasion Rs.34,500/- and on another occasion Rs.5700/- were paid by him to the defendant. He obtained endorsements to that effect. Exs.A7 and 8 are the endorsements on the date of agreement. He paid Rs.500/- as advance at the time of execution. The balance of sale consideration was deposited into the Court. In the cross-examination of this witness several details had been elicited. It was recorded at the end after lunch that Sri B. Gopalakrishna, who cross-examined the witness in the forenoon, in spite of the Court refusing to grant adjournment, on the ground that he has got work at Kakinada, left the Court without proceeding further with the cross-examination. Hence, the cross-examination of this witness is treated as closed. It was recorded at the end after lunch that Sri B. Gopalakrishna, who cross-examined the witness in the forenoon, in spite of the Court refusing to grant adjournment, on the ground that he has got work at Kakinada, left the Court without proceeding further with the cross-examination. Hence, the cross-examination of this witness is treated as closed. It is needless to say that the cross-examination of this witness also was not complete, may be for the reason that the counsel was not inclined to further proceed with such cross-examination after lunch. However, in the cross-examination available on record several answers had been elicited. 24. P.W.1 was aged 26 years and this witness is having Ac.3.35 cents to the west of the land covered by Ex.A6. This land was purchased by his father in his name from his grand father. He is also having a site at Kakinada purchased by his father in his name about ten years ago. At the time of Ex.A6 transaction, P.W.1 and his father were present. By then, there was Casuarina tope in the extent of Ac.2.00 and it was aged about four years. Certain facts were elicited relating to the family of P.W.1 and his father doing the business in Firewood and certain further facts. This witness also specifically deposed that it is not true to say that the defendant and her husband got separated from the time of Ex.A6 due to some misunderstandings. Since five or six years prior to Ex.A6 the defendant was expressing her intention to sell away the property. Having come to know through the family members that the defendant is proposing to sell away the property they made enquiries. This witness also specifically deposed that it is not true to say that by then the Casuarina tope was worth about Rs.50,000/-. Certain questions were put to this witness relating to the income and other particulars, may be to establish either the capacity or incapacity of P.W.1 to purchase this land. P.W.1 also deposed that the bargain was settled one year prior to the agreement. Generally agreements will be obtained on stamp papers and on the date when the bargain was settled the date for getting agreement executed was not fixed. On the date when they started from Moolapeta i.e., on the date of agreement, they had no intention to obtain an agreement. Generally agreements will be obtained on stamp papers and on the date when the bargain was settled the date for getting agreement executed was not fixed. On the date when they started from Moolapeta i.e., on the date of agreement, they had no intention to obtain an agreement. After reaching Moolapeta when the defendant wanted them to obtain an agreement, Ex.A6 was obtained. It was written at their house at Moolapeta. On the date of agreement itself, the defendant came to the land and delivered possession. This witness, his father, the defendant, and some others who came along with the defendant were present at the time of delivery of possession. This witness also deposed that his family was indebted to Rayavarapu family in a sum of Rs.1,50,000/- and they were indebted to the villagers of Komaragiri to a tune of Rs.60,000/- by 1987 and they were not indebted to anybody at Moolapeta. This witness also deposed that by the date of Ex.A7 they were not ready with the balance of sale consideration. By the date of Ex.A8 they were ready with the balance sale consideration. About eight months after Ex.A7 they were ready with the balance of sale consideration. No extension of time was made under Ex.A7. No doubt, Ramanarao, learned counsel, pointed out that this evidence of P.W.1 is in fact contra to the specific recitals made in Ex.A7. P.W.1 also deposed that subsequent to Ex.A8 they demanded the defendant to execute sale deed by the date of Ex.A8 also they were not ready with the balance of sale consideration. Five or six months after Ex.A8 they were ready with the balance of sale consideration. Five or six months prior to Ex.A1 they demanded the defendant to execute the sale deed. She postponed. She did not refuse. Subsequent to Ex.A1 there was no meeting between them and the defendant. Though specific suggestion was put that on certain papers certain signatures had been obtained the same had been specifically denied. 25. P.W.2 is the attestor of Ex.A6 and P.W.3 is the scribe. P.W.4 is the witness who raised the Casuarina plantation in the said land at the request of the plaintiff and his father. P.W.5 is the expert. Whatever the reason may be P.Ws.2 to 4 were not cross-examined. 25. P.W.2 is the attestor of Ex.A6 and P.W.3 is the scribe. P.W.4 is the witness who raised the Casuarina plantation in the said land at the request of the plaintiff and his father. P.W.5 is the expert. Whatever the reason may be P.Ws.2 to 4 were not cross-examined. No doubt, it was recorded that the counsel was not willing to proceed with the cross-examination, may be for the reasons, which had been recorded. Inasmuch as Visweswararao, Advocate, who was already holding vakalat and physically present in the Court refused to cross-examine the witness, refusing the adjournment, the cross-examination was recorded as 'nil'. 26. P.W.2 deposed that the defendant executed sale agreement in favour of the plaintiff in 1987 and he had attested the said agreement. Baburao is another attestor and he is the second attestor to the agreement. In his presence a sum of Rs.500/- was paid as advance under Ex.A6-agreement. The property was sold for a consideration of Rs.50,000/-. One Ch.Bhaskararao was the scribe. The defendant signed the agreement in his presence and he saw her signing. The plaintiff, his father, the defendant, both the attestors, and the scribe were present at the time of Ex.A6. As already referred to above, no cross-examination was made since the counsel on record refused to cross-examine. Likewise P.W.3 deposed about the defendant signing the agreement in his presence and the attestors attesting the same. This witness is the scribe of Ex.A6. This witness also scribed endorsements. He deposed that he had scribed the payment endorsements as and when the plaintiff paid some amounts to the defendant. When the payment endorsements were reported by him the defendant signed them in his presence. Exs.A7 and 8 are the endorsements in his hand writing. Unless, he sees the document he cannot say the amount paid as advance. Under the agreement some amount was paid. He cannot say the quantum of the amount. He had scribed the agreement, got it executed, and delivered to the parties. He does not know what happened later. He was not present when the possession was delivered. This is the nature of evidence of P.W.3. 27. P.W.4 as already specified above deposed about the raising of Casuarina plantation in the suit land at the request of the plaintiff and his father and by then one crop was cut. He does not know what happened later. He was not present when the possession was delivered. This is the nature of evidence of P.W.3. 27. P.W.4 as already specified above deposed about the raising of Casuarina plantation in the suit land at the request of the plaintiff and his father and by then one crop was cut. Gopisetti Mulaswamy purchased the tope raised by him subsequently and he does not know what happened later. Apart from this evidence, the evidence of P.W.5-the expert also is available on record. P.W.5 is an expert who deposed that he has been working as Government Examiner of the questioned documents at Hyderabad since June, 1991. This witness also deposed of Ex.C1-opinion of handwriting expert and Exs.C2 to 10 as well. In the opinion he had deposed several details and in the cross-examination this witness deposed that it is true that Sri D.D.Goel, G.E.O.D. had signed in Ex.C1, which is opinion, and he does not know whether Sri D.D.Goel had prepared any reasons. He was not present at the time of examination of Sri D.D.Goel. This witness in the cross-examination deposed that the writer of these writings appears to be a poor skilled person but the skill of the disputed signatures and standard signatures is similar. The poor skill does not mean that the writer only signs. It is the proficiency of the writer. The skill is not connected with the education of the writer. This witness specifically deposed that it is not true to suggest that there are several discrepancies as there is no discrepancy at all. These are only variations but not discrepancies. It is true to suggest that there are variations as that they call it as natural variations which are found to occur in writing of an individual as no person can write exactly alike. This witness also deposed that it is not true to suggest that variations are material and it will prove dissimilarities and not signed by the same person. As against this witness, the evidence of D.Ws.1 to 5 is available on record. 28. This witness also deposed that it is not true to suggest that variations are material and it will prove dissimilarities and not signed by the same person. As against this witness, the evidence of D.Ws.1 to 5 is available on record. 28. D.W.1 is the defendant who deposed how she got the property and this witness also deposed that her brother obtained signatures on blank white papers containing revenue stamps and another blank white paper at two places and she never agreed to sell any land to her brother and she specifically denied the suggestion to the effect that it is not true to say that she agreed to sell the land to the plaintiff for Rs.50,000/- and delivered possession of the property. This witness specifically deposed that by the year 1987 the crop itself is worth about Rs.50,000/- to Rs.60,000/- and if the land is sold with the crop it will cost about Rs.2,00,000/-. This witness also specifically denied having received any amount whatsoever, the amount of Rs.500/- or the amount of Rs.34,500/- or the amount of Rs.5700/- under Exs.A1 to A8 as well. Further this witness deposed several details why the plaintiff and his father are heavily indebted to several persons and they are not in a position to purchase the property, but however, in the cross-examination this witness admitted to the fact that it is true that Exs.A9 and A10 are the documents delivered by her to the plaintiff and his father. This witness also deposed that the lands are sandy soils either groundnut or Casuarina were raised in the lands as they are sandy soils. Even without the tope in the year 1987 the land would be worth about Rs.1,40,000/- and with tope again she asserted it would be Rs.2,00,000/-. This witness also answered questions relating to the decree value register and the valuation. This witness also deposed that she cannot say whether the signatures on Exs.A6 to A8 are that of her or not. She never saw the suit agreement why the suit was filed. This witness also further deposed that the father of the plaintiff was living at Kakinada since 20 years and he shifted to Kakinada for carrying on business. He purchased house at Kakinada. In the partition with his brothers his brother Venkatarao got 30 acres of land towards his share. She never saw the suit agreement why the suit was filed. This witness also further deposed that the father of the plaintiff was living at Kakinada since 20 years and he shifted to Kakinada for carrying on business. He purchased house at Kakinada. In the partition with his brothers his brother Venkatarao got 30 acres of land towards his share. He had money dealings with Sivarao, the resident of Moolapeta from the commencement of his business. This witness also deposed that he knows P.W.2 from her childhood and she has no enmity with him and she never questioned her husband about the genuineness of the transaction in which he figured as an attestor. She never questioned Kotipalli Suryaprakasarao, who is her father-in-law about the suit transaction and the payment endorsement. Several suggestions were put to this witness and to certain suggestions she admitted and to certain suggestions she denied. She had denied almost all the suggestions put to her. 29. In the light of the stand taken in the plaint and also as deposed by P.W.1 the evidence of D.W.2 is that D.W.1 is having land at Moolapeta and abutting that land, P.W.1 is also having his land. D.W.1 is in possession and enjoyment of her property and D.W.1 never delivered the possession of the land to P.W.1 at any time. This witness also deposed that he has been raising ground nut crop in the land of D.W.1 on sharing system. This witness also deposed that he raised Casuarina crop previously in the land of D.W.1 and several other particulars had been deposed by this witness and in the cross-examination this witness deposed that he is an agricultural coolie, but several suggestions put to this witness had been specifically denied. 30. D.W.3-husband of D.W.1 is a crucial witness. This witness deposed that his brother-in-law asked him to sign on papers and he signed twice on one paper on the same day. This witness also deposed that the value of the land per acre is Rs.40,000/- The government acquired the vacant land at Rs.20,000/-per acre and his wife never tried to sell the plaint schedule property. In the cross-examination, this witness deposed that the signatures made in Exs.A7 and A8 are of himself. The second attestor of Ex.A7 is the son-in-law of Venkataramana who is the step sister's husband of the plaintiff. Kotipalli Suryaprakasarao is resident of Payakararaopeta. In the cross-examination, this witness deposed that the signatures made in Exs.A7 and A8 are of himself. The second attestor of Ex.A7 is the son-in-law of Venkataramana who is the step sister's husband of the plaintiff. Kotipalli Suryaprakasarao is resident of Payakararaopeta. The scribe of Exs.A7 and A8-Chinnari Bhaskararao is a resident of Moolapeta. Koduri Rambabu, another attestor of Ex.A8, is the resident of Moolapeta. This witness deposed that he cannot identify his wife's signature and his brother-in-law asked him to attest Exs.A7 and A8 at Kakinada. He had not observed whether there was any writing on the paper. From the commencement of the trial, he was attending the Court for every adjournment. He was asked to sign on false chits by Burra Venkatarao. Five years after his marriage they had disputes and there was estrangement for five years and thereafter they again joined together. Certain questions were put to this witness relating to purchase by Malipedi Nageswararao. This witness also specifically deposed that it is not true to say that his wife sold the land along with the tope and he was not present at that time and this witness further deposed that it is not true to say that the above transaction was done in his presence. He deposed that one year after Casuarina tope was sold, Exs.A9 and A10 were delivered through the mediators. This witness also deposed that he signed in Ex.A4. 31. D.W.4 deposed that the defendant raised Casuarina tope in her land, the extent of which is Ac.3.20 cents. She deposed about her separation from her husband and she also deposed that she knows P.W.4 and he never raised Casuarina tope in the plaint schedule property. In the cross-examination certain suggestions were put to this witness and certain further facts also had been elicited. The specific suggestion had been denied by this witness. D.W.5 simply deposed that the defendant is having Ac.3.20 cents of land and she raised Casuarina tope in that land twice and the plaintiff cut the crop for the first time. This witness deposed that D.W.2 is cultivating the land on lease since he purchased the land. The suggestion put to this witness had been denied. 32. The learned counsel representing the respondent-defendant placed strong reliance in A.C.ARULAPPAN v. SMT. This witness deposed that D.W.2 is cultivating the land on lease since he purchased the land. The suggestion put to this witness had been denied. 32. The learned counsel representing the respondent-defendant placed strong reliance in A.C.ARULAPPAN v. SMT. AHALYA NAIK (AIR 2001 SUPREME COURT 2783) wherein the apex Court held that the jurisdiction to decree specific relief is discretionary and the Court can consider various circumstances to decide whether such relief is to be granted. Merely because it is lawful to grant specific relief, the Court need not grant the order for specific relief; but this discretion shall not be exercised in an arbitrary or unreasonable manner. 33. The respective stands taken by the parties in the plaint and the written statement, the evidence available on record both oral and documentary, already had been referred to above. The following are certain essential facts: 1. The fact that the father of P.W.1 was doing firewood business at the relevant point of time is not in serious controversy. 2. The relationship between the parties P.W.1, the son of brother of D.W.1 also is not in controversy. 3. The fact that Ex.A.6 is on a white paper, a possessory agreement, however, the advance paid is said to be Rs.500/- and Rs.500/- alone. 4. P.W.1 made admissions to the fact that they were ready and willing to perform their part of the contract both on the dates of Exs.A7 and A8. 5. The evidence of P.W.5-expert is to the effect that D.D.Goel signed Ex.C1 but however, in general, P.W.5 supported the version of P.W.1. 6. Whatever the reason may be the cross-examination of P.W.1 also was not complete. As can be seen from the deposition, it is pertinent to note that P.Ws.2 to 4 also were not cross-examined and it was recorded by the learned Judge that the Advocate was not inclined to proceed with the cross-examination and hence, cross-examination was recorded as 'nil'. 7. Even though the evidence of P.Ws.2 and 3 is available on record and though the evidence of P.W.2 is clear and categorical relating to the payment of advance of Rs.500/- on the date of Ex.A2 and though P.W.3 deposed about Exs.A7 and A8, the amounts had not been specifically specified but this witness deposed that certain amounts had been paid. 8. The specific stand taken by D.W.1 is that her brother offered to purchase Casuarina tope at Rs.50,000/-. 8. The specific stand taken by D.W.1 is that her brother offered to purchase Casuarina tope at Rs.50,000/-. 9. It is pertinent to note that there are admissions of both P.W1 and D.W.1 to the fact that the father of P.W.1 was doing firewood business at the relevant point of time. 10. D.W.1, no doubt, admitted that Exs.A9 and 10-documents were delivered by D.W.1 to P.W.1 and his father. 11. D.W.1 also admitted that she has no enmity with P.W.2. 12. Whatever may be the circumstances it is also not in controversy that Exs.A7 and 8 had been attested by the husband of D.W.1 who was examined as D.W.3 and no doubt the explanation is that due to misunderstandings, D.W.3 signed. 34. These are certain of the facts. Here is a case where the son of the brother of D.W.1 claims the relief of specific performance and also alternative relief of refund on the strength of Ex.A6 which is on a white paper. No doubt, the evidence of P.W.1 is to the effect that on that day they had no idea of taking an agreement but since D.W.1 insisted, such agreement had been taken. As far as payment of Rs.500/- as advance on the date of Ex.A6 is concerned, the evidence of P.W.1 and the clear evidence of P.W.2 also is available well supported by the evidence of P.W.3. It is pertinent to note that the evidence of P.Ws.2 and 3 in this respect being left unchallenged since there was no cross-examination, it can be taken that on the date of Ex.A6 advance amount of Rs.500/- had been paid. The several probabilities i.e., the incapacity of either P.W.1 or the father of P.W.1 may not come to the aid of D.W.1 in this regard. It is also true that as far as Exs.A7 and 8 are concerned, specifically the quantum of amounts had not been specified, but the fact remains that P.W.3 specifically deposed about these endorsements having been scribed and absolutely there is no cross-examination. Apart from all these aspects, the evidence of expert-P.W.5 also is available on record and hence, in the facts and circumstances, in all probability, even if the agreement of sale as such had not been executed, atleast to the extent of the relevant portion of the signatures, the same cannot be put into serious controversy. Apart from all these aspects, the evidence of expert-P.W.5 also is available on record and hence, in the facts and circumstances, in all probability, even if the agreement of sale as such had not been executed, atleast to the extent of the relevant portion of the signatures, the same cannot be put into serious controversy. Even if the defence of D.W.1 to be taken into consideration her defence is that her signatures had been obtained on blank papers. It is needless to say that in such a case the burden is on such a party. When that being so, in the light of the evidence available on record, inasmuch as the payment had been established, the next question is whether in the facts and circumstances of the case, the relief of specific performance to be granted?. No doubt, some explanation had been offered and certain submissions were made by Sri Ramanarao that Rs.30,000/- relating to Casuarina tope deposed by P.W.1 is in relation to two crops and hence the same cannot be taken as the value representing the crop only. However, D.W.1 specifically deposed relating to the value of the property. At any rate, the specific stand of D.W.1 is that the land value will not be Rs.50,000/-. Inclusive of Casuarina tope at the relevant point of time, it would be Rs.2,00,000/-. While appreciating planting the evidence in a suit for specific performance, especially in a case of this nature where the parties are very close relatives and also in the back drop of the defence taken by the sister of father of P.W.1, the same to be evaluated. The specific stand taken by D.Ws.1 and 3 also cannot be totally ignored. Even otherwise, atleast certain admissions had been made by P.W.1 that both at the time of Exs.A7 and 8 they were not ready and willing to perform their part of the contract. It Is needless to say that the plaintiff is expected to be ready and willing to perform his part of the contract always. This admission also cannot be lost sight off. Hence, in the overall facts and circumstances of the case, especially in the light of the evidence of P.W.1 to 3, well supported by the evidence of the expert-P.W.5, the recitals made in Ex.A6 coupled with Exs.A7 and 8 this Court is satisfied that the payments made by P.W.1 to D.W.1 had been well established. Hence, in the overall facts and circumstances of the case, especially in the light of the evidence of P.W.1 to 3, well supported by the evidence of the expert-P.W.5, the recitals made in Ex.A6 coupled with Exs.A7 and 8 this Court is satisfied that the payments made by P.W.1 to D.W.1 had been well established. It is on one thing to say that the relief of specific performance not to be granted on the strength of Ex.A6. It is another thing to say that whether a person who had received such payments, cannot be permitted to have unjust enrichment. 35. This Court is of the opinion that in the light of the facts and circumstances the defendant is bound to refund the amount for the reasons specified supra taking into consideration the undue hardship also and the value of the property. This Court is not inclined to exercise the discretion of decreeing the suit for specific performance but only to grant alternative relief of refund of consideration. The next question would be whether refund of consideration should be with interest or without interest and if so at what rate. 36. The interest claimed is 24% p.a. In the light of the facts and circumstances, on appreciation of the whole evidence available on record, this Court is inclined to order refund of the consideration prayed for with an interest of 12% p.a., from the date of the suit till the date of realization. 37. Point No.3: In the light of the evidence recorded above, the appeal is partly allowed and the suit is decreed to the extent specified supra ordering refund of consideration prayed for with an interest of 12% p.a., from the date of the suit till the date of realization and for the same the charge is being created as against the plaint schedule property. However, in view of the close relationship between the parties, the parties to the litigation do bear their own costs.