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2010 DIGILAW 554 (KAR)

T. S. Ratna v. S. Subramanyam

2010-04-19

D.V.SHYLENDRA KUMAR, N.ANANDA

body2010
JUDGMENT D.V. Shylendra Kumar, J : This appeal u/s 96 of CPC is against the judgment and decree passed in O.S. No. 24/93 on the file of Civil Judge (Sr. Dn.) & JMFC, Hospet. Though the matter has come up for orders regarding non-compliance of office objections, we have taken up the appeal for disposal having regard to the limited issues involved in the appeal. 2. We have heard Smt. Veena Hegde, learned Counsel for appellant, Sri Anant Hegde, learned Counsel appearing for respondent No. 5(a), 5(b), 6(a), 6(b), 7, 8, 9 and 10(a) and gone through the findings of the lower Court with records, documentary and oral evidence and law on the point and we are fully satisfied that this is an appeal which deserves dismissal on the following facts and the foregoing reasons. 3. The suit was for specific performance on the premise that some of the defendants, particularly defendant No.1 and 2 had executed an agreement dated. 17.11.1992 to sell the suit schedule property in favour of the plaintiff for a consideration of Rs. 8,00,000/- and for which purpose under the suit agreement a sum of Rs. 25,000/- had already been received, which amount of course was entitled to be forfeited by the owners of the suit schedule property in the case the plaintiff fails to perform her part of the agreement, by not paying the balance sale consideration of Rs. 7,75,000/-. 4. Defendant Nos. 1 and 2 had denied the execution of the suit agreement as per Ex.P.5 and had contended that it is a forged document. Defendant No.1 had contended that they had borrowed a sum of Rs. 25,000/from the plaintiff and in that connection the plaintiff on the pretext of non availability of a proforma demand promissory note had obtained signatures of defendants 1 and 2 on revenue stamps affixed on a white paper which has been subsequently forged by plaintiff and her husband to make it appear as an agreement for sale. Defendants 3 and 4 had questioned the rights of defendants 1 and 2 to enter into the alleged agreement in respect of individual interest of defendants 3 and 4 in the suit schedule property. 5. The Trial Court framed several issues which are not relevant for disposal of this appeal except issues Nos. 1 and 4 which are as under: Issue No. 1. 5. The Trial Court framed several issues which are not relevant for disposal of this appeal except issues Nos. 1 and 4 which are as under: Issue No. 1. Whether the plaintiff proves that defendants 1 and 2 on their behalf and also on behalf of defendant Nos. 3, and 4 agreed to sell suit schedule property in favour of the plaintiff for a sum of Rs. 8,00,000/ - taking an advance of Rs.25,000/- from the plaintiff by cheque dated 17.11.1992 and executed an agreement-cum-receipt on 17.11.92 confirming the agreement of sale as alleged in the plaint? Issue No.4. Whether the plaintiff proves that defendant Nos. 3 and 4 were under the care and custody of defendants 1 and 2 and they agreed to sell the property and joined in the execution of sale deed in favour of the plaintiff as alleged in plaint? The parties went to trial on the issues that had been framed by the Trial Court. So far as this appeal is concerned, the significant documentary evidence is Ex.P.5 said to be an agreement executed by defendants 1 and 2 to sell the suit schedule property not only on their behalf but also on behalf of defendants 3 and 4 who are the children of deceased younger brother of second defendant, in favour of the plaintiff for sale consideration as indicated above. 6. The learned trial Judge on appreciation of the evidence on record has found that Ex.P.5 is not a genuine document and it is not an enforceable agreement against defendants 1 to 4. Accordingly answered issue No.1 against the plaintiff. So also answered issue No.4 against the plaintiff, holding that defendant No.3 and 4 were not minors on the date of the execution of the alleged suit agreement and they were not under the care and custody of the defendant Nos. 1 and 3, but on the other hand had attained majority as on the date of the so called agreement dated 17.11.1992 marked as Ex.P.5. 7. Obviously, in view of the aforestated findings the suit was dismissed. 8. Being aggrieved by the dismissal of the suit, present appeal is preferred. 9. Submission of Smt. Veena Hegde, learned Counsel for the appellant is that the defendant No.1 and 2 having admitted their signatures on Ex.P.5, there was nothing further that was required to be proved on the part of plaintiff. 8. Being aggrieved by the dismissal of the suit, present appeal is preferred. 9. Submission of Smt. Veena Hegde, learned Counsel for the appellant is that the defendant No.1 and 2 having admitted their signatures on Ex.P.5, there was nothing further that was required to be proved on the part of plaintiff. In so far as Ex.P.5 is concerned, the learned trial judge has grossly erred in holding that the plaintiff has failed to prove that Ex.P.5 was a valid enforceable agreement in the eye of law. 10. However, with regard to findings on issue No.4, regarding authority of defendant No.1 and 2 to execute an agreement on behalf of defendant No.3 and 4 who had attained the age of majority as on the date of Ex.P.5 the learned Counsel for appellant is not joining issue before us by submitting that it is a fact that defendants 3 and 4 had attained the age of majority as on the date of Ex.P.5 and the finding recorded by the Trial Court on this aspect is correct, but nevertheless defendant Nos. 1 and 2 having acted on their behalf also, and having admitted they have also acted on behalf of defendant No.3 and 4 the suit agreement should have been held as binding on defendants 3 and 4, having regard to proximity of relationship between defendant No.2 and defendant 3 and 4 and that defendants 1 and 2 had acted bonafide to protect their interest also. 11. Sri Anant Hegde, learned Counsel for respondent No. 5(a), 5(b), 6(a), 6(b), 7, 8, 9 and 10(a) submits that learned trial Judge has very correctly held that Ex.P.5 is not at all an agreement in the eye of law it being an one sided document. Even the other contracting party having not joined the document, it cannot be construed as an agreement for sale, and at the best it remains as a receipt executed by defendant No.1 and 2 for whatever it was worth. Sri Hegde further submits that a receipt cannot be construed as an agreement, that too for conveying immovable property of the value of more than Rs. 8,00,000/- and that the finding of the learned trial Judge is correct. 12. Sri Hegde further submits that a receipt cannot be construed as an agreement, that too for conveying immovable property of the value of more than Rs. 8,00,000/- and that the finding of the learned trial Judge is correct. 12. In so far as the issue No.4 is concerned, the learned Counsel for defendants would submit that defendants 3 and 4 not being parties to Ex.P.5 the same cannot be enforced against them and the finding recorded by the Trial Court on this issue does not call for interference. 13. We have bestowed our attention to the submissions at the bar and looked into records, judgment and appeal memorandum. 14. We have carefully scrutinized Ex.P.5 said to be an agreement on the basis of which specific performance had been sought by plaintiff. Our careful scrutiny clearly indicates that Ex.P.5 is not at all an agreement of sale in the eye of law. Ex.P.5 which is a typewritten document with several interpolations reads as under:: RECEIPT We, (1) S. Subramanyam and (2) Gopinath, sons of late Seshadri, Bangalore, this day, received an advance sum of Rs.25,000/- (Rupees Twenty Five thousands only) from Smt, T.S. Ratna, wife of Sri T. Datta Pompasastry Compound, Hospet towards the advance sale consideration amount of Rs.8,00,000/(Rupees eight lakhs only). We have agreed to sell our portion of the property situated in Pompa Sastry Compound, Hospet, which is morefully described in the plan attached herewith, bearing door No. 40 (underlined portion is written in handwriting and inserted subsequently) in VII Ward, Hospet, for a otal sale consideration amount of Rs.8,00,000/-. This receipt is being executed by us in our favour and also in favour of other sharers who are the children of our late brother. We will execute and register the Sale Deed after the payment of balance of sale consideration of Rs.7,75,000/- by her, on or before 17th March 93. otherwise the amount of advance paid will be forfeited (this portion is written in handwriting and inserted subsequently). We, do hereby execute this Receipt on this 17th day of November. 1992, at Hospet. The payment of Rs.25,000/- was made through cheque bearing No. MBF 32060 dated 17.11.1992 (this portion is written in handwriting and inserted subsequently) of Indian Bank, Hospet. EX.P.5 bears signatures on four revenue stamps of the value of 20 paise each. We, do hereby execute this Receipt on this 17th day of November. 1992, at Hospet. The payment of Rs.25,000/- was made through cheque bearing No. MBF 32060 dated 17.11.1992 (this portion is written in handwriting and inserted subsequently) of Indian Bank, Hospet. EX.P.5 bears signatures on four revenue stamps of the value of 20 paise each. Signatures of this nature on the revenue stamps are normally found on a receipt annexed to an on demand promissory note. We hive rarely come across receipt of this nature being claimed as an agreement for conveying immovable property. 15. Above all, one essential requirement of an agreement is that it should be signed by two persons, one agreeing to sell something and another' agreeing to purchase the same for consideration. The receipt is signed and acknowledged only by defendants No.1 and 2. 16. However Smt. Veena Hegde, learned Counsel for appellant would draw our attention to Ex.P.5, and the last typed line with signature below the date 17.11.1992. 17 But, this signature is neither marked nor tendered in evidence as the signature of the plaintiff and therefore Exhibit.P5 is no agreement much less for sale of an immovable property. 18. The suit is for specific performance based on Ex.P.5. But plaintiff failed to prove Ex.P.5 in the manner required in law. While the signatures of defendant No.1 and 2 have been very diligently marked as Ex.P.5(a) and Ex.P.5(b) and said to be the signatures of the executants namely Y.A.Subrahmanya and Gopinath, the so called signature of the plaintiff is all left to itself conspicuously stands out by not getting marked. 19. On a careful scrutiny of Ex.P.5, we find the so called signatures of plaintiff are affixed to certify corrections by way of insertions to the typed version of the receipt Ex.P.5. 20. Otherwise also we do not find any reason as to why the plaintiff should affix her signatures to the corrections made to the contents of the receipt Ex.P.5 which is signed by the defendants 1 and 2 as executants of the document. If at all correction should have been certified or acknowledged it should have been under signatures of defendants and not under the signatures of the plaintiff. 21. If at all correction should have been certified or acknowledged it should have been under signatures of defendants and not under the signatures of the plaintiff. 21. Be that as it may, signatures of plaintiff assuming that it is appearing on the receipt Ex.P.5, it is not as signature subscribed by a contracting party to the so called agreement. On consideration of the contents of Ex.P.5 we find that Ex.P.5 lacks even the essential requirements for being construed as an agreement. 22. Further to compound the woes of the plaintiff-appellant we notice that the so called document/receipt (Ex.P.5) is said to have been executed in respect of the property described in the plan attached therewith and we find that an old plan of bungalow (suit schedule property) of course is attached to the receipt and marked as Ex.P.5. The said plan had come into existence long prior to the date of Ex.P.5 and it does not bear the signatures of either defendant Nos. 1 and 2 or of the plaintiff and it cannot be construed as any part of agreement which should always bear the signatures of contracting parties and that being the basic ingredient of an agreement in law. The oral evidence of plaintiff and her witnesses viz., P.W.2 and P.W.3 to say the least is as incredible and discrepant as that of contents of Ex.P.5. It has come out in the evidence of plaintiff that plaintiff is a Post Graduate in Arts, her husband is a Chartered Accountant, so also her son a Chartered Accountant. The plaintiff has taken assistance of P.W.3 - S. Krishna, a practicing Advocate to prepare Ex.P.5. P.W.2 is said to be present when the suit transaction was finalised between plaintiff and defendant No.2. The plaintiff has admitted that when Ex.P.5 was typed, property number was not mentioned, so also the cheque number and date were not mentioned. The plaintiff admits in Ex.P.5 entire sentence reading as under is a subsequent insertion: “on or before 17th March 93 ,otherwise the amount of advance paid will be forfeited.” The plaintiff has admitted that Ex.P.5 was not attested by any of the witnesses to the transaction nor does it bear an endorsement that it was prepared by P.W.3 who at the relevant time was a practicing Advocate with 23 years of standing at the bar. P.W.3-S. Krishna has deposed that he had prepared Ex.P.5 as per the instructions given by plaintiff and second defendant. He has changed this version and deposed that he prepared the draft of Ex.P.5 as per the instructions given by plaintiff and another gentleman who was not known to him. P.W.3 admitted that he was not present and he had not seen the execution of Ex.P.5 by defendants 1 and 2. P.W.3 has admitted that he does not know what transpired between the parties after he prepared draft of Ex.P.5. P.W.3 has pleaded ignorance about insertions made in Ex.P.5. P.W.3 has deposed that he was not aware if defendant Nos. 3 and 4 had executed any power of attorney in favour of defendants No.1 and 2 to execute Ex.P.5 on their behalf. P.W.3 has deposed that he had advised the plaintiff that an agreement of sale of immovable property must be recited on the stamp paper, however the plaintiff told him that Ex.P.5 would suffice her purpose. 23. Thus from the oral evidence of plaintiff we find that she was a Post Graduate, both her husband and son are Chartered Accountants and they were aware that defendants No.1 and 2 are neither the natural guardians nor guardians appointed by the Court in respect of properties and persons of defendants No. 3 and 4. Even then they allege to have entered into agreement Ex.P. 5 as if defendants 1 and 2 had authority to transfer the suit schedule property not only on their own behalf but also on behalf of defendants 4 and 5. 24. In the background of family of plaintiff if the plaintiff and defendants 1 and 2 had gone through the suit transaction as sought to be made out by the plaintiff, one would expect that plaintiff would enquire about the authority of defendants 1 and 2 to execute the agreement on behalf of defendants 3 and 4, more so if she had taken the assistance of P.W.3 (a practicing lawyer of 23 years experience) to prepare Ex.P.5. 25. The plaintiff has not offered any explanation for the insertion of door number and the handwritten recitals in Ex.P.5 relating to time fixed for performance of the alleged contract. So also she has not offered any explanation for the insertions of cheque number and the date. 25. The plaintiff has not offered any explanation for the insertion of door number and the handwritten recitals in Ex.P.5 relating to time fixed for performance of the alleged contract. So also she has not offered any explanation for the insertions of cheque number and the date. P.W.3 has admitted that the contents relating to door number, cheque number and the time fixed for performance of alleged contract have been subsequently inserted. P.W.3 has admitted the plaintiff had not given cheque for a sum of Rs. 25.000/- to defendants 1 and 2 in his presence. Thus we find that the plaintiff has miserably failed to prove that defendants 1 and 2 had agreed to sell the suit schedule property not only on their behalf but also on behalf of defendants 3 and 4 for a sum of Rs. 8,00.000/- and that defendants 1 and 2 had received advance consideration of Rs. 25.000/-. The plaintiff has miserably failed to prove not only the suit transaction but also execution of Ex.P.5 by defendants 1 and 2. On the other hand, contention of defendants that the second defendant had borrowed a sum of Rs. 25,000/- with the plaintiff and in that connection the plaintiff had obtained signatures of defendants 1 and 2 on revenue stamps affixed on a blank paper appears to be probable. This is also evident from the contents of Ex.P.5 which contains interpolations and material alterations regarding the description of property, payment of consideration. These alterations were not attested or acknowledged by defendants 1 and 2. Therefore we hold that the plaintiff has miserably failed to prove issue No. 1. The learned trial Judge on proper appreciation of evidence has answered issue No.1 against the plaintiffs and said finding does not call for interference. 26. It appears after defendants 1 and 2 transferred the suit schedule property in favour of defendants 5 to 9, the plaintiffs with the assistance of her husband has concocted Ex.P.5 to defeat the rights of defendants 5 to 9 under Sale Deed dated 09.03. 1993. Thus we find that the conduct of the plaintiff is unfair on the face of it and it would disentitle plaintiff for the relief of specific performance. Therefore we do not find any grounds to interfere with the impugned judgment. Accordingly the appeal is dismissed with costs. Appeal dismissed.