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2011 DIGILAW 840 (KAR)

Parvathi Ammal v. M. Dhana Paul

2011-08-19

K.GOVINDARAJULU, MOHAN M.SHANTANAGOUDAR

body2011
JUDGMENT MOHAN SHANTANAGOUDAR, J.—The original defendants l(a) and l(b), (later treated as defendants 2 and 3) in O.S. No. 15523/2002 on the file of XVIII Addl. City Civil Court, Mayohall, Bangalore, have filed this appeal against the judgment and decree passed in the said suit on 20th of December 2005. For the sake of convenience, the parties are referred to as per their respective ranks before the trial Court, 2. The case of the plaintiff (respondent herein) is that, Late Mr. P.T. Perumal (original defendant) was the absolute owner of the residential property bearing New No. 4 (Old No. 6), Madhava Mudaftar Street, Ulsoor, Bangalore-08, measuring East to West 32f and North to South 45', more fully described in the suit schedule. The suit property consists of old building comprising of four tenements. Mr. Perumal acquired the said property through registered Sale Deed dated 28tn December 1987. The defendant desired to sell the suit property, hence he represented to the plaintiff that in order to meet his domestic and other legal necessities, he intended to sell the suit property for consideration of Rs. 13 lakhs. The plaintiff agreed to purchase the same for the said consideration. Accordingly, the plaintiff and defendant entered into an agreement dated 6.12.1998 and under the said agreement, plaintiff paid a sum of Rs. 1,20,000/- to the defendant. It was agreed that the sale transaction shall be completed within 11 months from the date of transfer of khata of the schedule property in the name of defendant and taxes paid up to the date. Since the property had three different tenants, plaintiff agreed to pay the balance sale consideration of Rs. 11,22,000/- to the defendant only when the defendant hands over all the four vacant portions of the schedule property. The defendant executed the Power of Attorney in favour of PW-2 Mr. Ranganath as per Ex. P2. The sale transaction could not be completed within the stipulated period of 11 months as the defendant could not get the tenants vacated within the said period. The defendant sought further time to register the sale deed by getting the tenants vacated. The plaintiff paid further amounts of Rs. 80,000/- on 12.6.1999, Rs. 1 lakh on 15.11.1999 and Rs. 1,25,000/- on 13.8.2000. Subsequently, on the request of the defendant, the plaintiff paid additional sum of Rs. The defendant sought further time to register the sale deed by getting the tenants vacated. The plaintiff paid further amounts of Rs. 80,000/- on 12.6.1999, Rs. 1 lakh on 15.11.1999 and Rs. 1,25,000/- on 13.8.2000. Subsequently, on the request of the defendant, the plaintiff paid additional sum of Rs. 2,95,000/- by executing another agreement dated 18th September 2001 which is registered in the office of Sub-Registrar, Shivajinagari Bangalore. The said agreement was not executed by Mr. Perumal, but by his power of attorney holder (PW-2). Thus, in all, a sum of Rs. 7,20,000/- was received by the defendant as on 18th September 2001. Under the said agreement dated 18th September 2001, again the parties agreed to complete the sale transaction within 11 months from that date and the plaintiff agreed to pay the balance sale consideration of Rs. 5,80,000/- within the said stipulated period. However, during the interregnum, the defendant, due to his old age and ill-health, pleaded for some more funds to meet his necessities and consequently, the plaintiff paid a further sum of Rs. 3,80,000/- to the defendant on the condition that the defendant should put the plaintiff in vacant possession of the entire suit schedule property to the plaintiff within one month, failing to do so, the defendant shall be liable to pay damages to the tune of Rs. 2,000/- per day, which shall be deducted from out of the sale consideration, The defendant agreed to the said condition. Accordingly, the parties entered into another agreement dated 15th November 2001. It is further case of the plaintiff that the original agreements dated 6.12.1998 and 15.11.2000 and the receipts were lost by the plaintiff, but by then, he had obtained retained the attested copies of the agreements and receipts. To the said effect, the plaintiff issued public notice in the Sunday Express news paper and Kannada Prabha on 30th of December 2001. He also lodged the complaint to the police alleging loss of original documents. However, defendant did not come forward to execute the sale deed in favour of the plaintiff and hence the plaintiff was constrained to issue legal notice dated 29.12.2001 calling upon the defendant to execute the sale deed. Though the said notice was served on the defendant, no reply is issued by him to the plaintiff. Thereafter, a suit came to be filed for specific performance. 3. Though the said notice was served on the defendant, no reply is issued by him to the plaintiff. Thereafter, a suit came to be filed for specific performance. 3. Before the written statement could be filed, the original defendant Mr. Perumal expired. The suit was filed on 30th of march 2002, whereas, Perumal died on 19.5.2002. The defendants 2 and 3 (legal representatives of deceased Mr. Perumal) filed joint written statement denying the averments made in the plaint. They pleaded that the deceased 1st defendant was not well since few years prior to his death; he was aged about 86 years at the time of death and was almost completely deaf; deceased Perumal was physically week and needed assistance of defendants 2 and 3 for any matter. He used to consult defendants 2 and 3 in respect of any matter relating personal affairs or property and consequently, the defendants 2 and 3 are well acquainted with all the matters of deceased -1st defendant. They emphatically denied that the 1st defendant had offered the property for sale to the plaintiff for consideration of Rs. 13 lakhs and that he had executed three agreements mentioned supra. They have specifically pleaded that the signatures of Perumal found in three agreements of sale are forged at the initiation of the plaintiff and the signatures appearing on the said documents vary from document to document and even from page to page. According to defendants 2 and 3, one of the tenant who was residing in one of the tenaments viz., Ganapat Rao was also confident of the deceased defendant. They made elaborate enquiries regarding whereabouts of alleged power of attorney holder and were unable to trace the whereabouts of the said person in the address given. They specifically pleaded that the deceased defendant has not received any money whatsoever from the plaintiff or from any other person towards the sale of his property and the averments made in the plaint in that regard are totally denied. They also denied that the 1st defendant has received any notice sent by the plaintiff as alleged by the plaintiff and that the signature in acknowledgement card purporting to be that of 1st defendant is a biatant forgery. On these among grounds, defendants 2 and 3 pleaded for dismissal of the suit, 4. Based on the pleadings, the following issues were raised by the trial Court. On these among grounds, defendants 2 and 3 pleaded for dismissal of the suit, 4. Based on the pleadings, the following issues were raised by the trial Court. (1) Whether the plaintiff proves that deceased defendant Perumal agreed to sell the suit property for Rs. 13,00,000/- under an agreement dated 8-12-1998? (2) Whether plaintiff proves that deceased defendant through his power of attorney holder Ranganath had executed another agreement on 18-9-2001 in respect of suit property? (3) Whether plaintiff proves that deceased defendant entered into another agreement of sale dated 15-11-2001 in respect of suit property? (4) Whether plaintiff proves that he has paid a sum of Rs. 11,00,00/- to deceased defendant Perumal towards the sale consideration of suit property? (5) Whether plaintiff proves that he was ready and willing to perform his part of obligation under the contract? (6) Whether plaintiff is entitled for the relief of specific performance? (7) Whether the plaintiff in the alternative entitled for refund of advance amount of Rs. 11 lakhs with interest? 5. In order to prove his case, the plaintiff examined three witnesses including himself and got marked 27 exhibits. The defendants 2 and 3 examined five witnesses, including themselves, and got marked 10 exhibits, Based on the material on record and after hearing, the trial Court decreed the suit with costs. 6. Sri Nagananda, learned counsel appearing on behalf of the appellants/defendants submits that the appreciation of the evidence by the Court below is improper and unjust and consequently, wrong conclusion is reached by the trial Court; the Court below has failed to take into consideration the suspicious circumstances surrounding the transaction in question between the parties which are as under: “(a) Perumal, an 80 year old man with poor eyesight and hearing, agreed to sell his only property to the plaintiff without the knowledge or without consulting his wife and only son who is a qualified mechanical engineer; (b) Perumal executed an irrevocable general power of attorney in favour of M. Ranganath, a total stranger and gave him full powers to deal with his only property. The said M. Ranganath is a semi-literate, farm land owner for Gundlupet without any permanent address. (c) The plaintiff, a government employee in service raised a sum of Rs. The said M. Ranganath is a semi-literate, farm land owner for Gundlupet without any permanent address. (c) The plaintiff, a government employee in service raised a sum of Rs. 11,00,000/- to pay Sri Perumal; (d) All payments to late Sri Perumal under the suit agreements were in cash; (e) The Plaintiff has placed no material on record to show that the he had or was capable of raising the sum of Rs. 11,00,000/- to pay Perumal especially when the Plaintiff had recently acquired immovable property for nearly Rs. 12,00,000/- from K.S. Venkataraman (Ext D-3); (f) K.S. Venkataraman, who is stated to be a close friend of Sri Perumal, a guardian of M. Ranganath and witness to almost all the suit agreements and receipts is not examined; (g) The signatures of Perumal in all the suit agreements and receipts are dissimilar even to the naked eye; the handwriting expert has opined that the signatures on the suit agreements and receipts do not tally with Perumal’s admitted signature; (h) The originals of the alleged agreements dated 06-12-1998 and 15-11-2001 (Ext P-l and Ext P-4) were not produced; (i) The Bank manager who allegedly demanded attested copies of the “lost” agreements and who verified and returned the attested copies to Plaintiff was not examined; (j) Perumal allegedly agreed to pay damages at the rate of Rs. 2,000/- per day to Dhanapal vide Ex. P4 in the event of his failure to convey the property when it is admittedly proved that late Sri Perumal did not even have a monthly income of Rs. 2,000/- at that time. (k) All persons who have signed/witnessed the documents in question are total strangers to Perumal and his family. He further submitted that the bank records of Mr. Perumal do not reveal any deposit made by Mr. Perumal during his life time in excess of the rents and pension he received; Mr. Perumal was aged about 85 years and was a man of limited wants; he did not spend more money than the sums which he has received by way of pension and the rents, inasmuch as, the pass-book of Mr. Perumal does not reveal that Mr. Perumal has drawn amounts in thousands at any point of time; there is nothing to record to show that the plaintiff has raised huge loans to the tune of Rs. 11 lakhs for paying the sale consideration to Mr. Perumal does not reveal that Mr. Perumal has drawn amounts in thousands at any point of time; there is nothing to record to show that the plaintiff has raised huge loans to the tune of Rs. 11 lakhs for paying the sale consideration to Mr. Perumal, which fact assumes significance as the plaintiff is a government employee. Mr. Perumai has not at all received any notice allegedly sent by the plaintiff calling upon him to execute the Sale Deed prior to filing of the suit, inasmuch as, the postal acknowledgement produced in the suit by the plaintiff is created inasmuch as it does not bear the seal of the postal department; and all the documents are created by the plaintiff for the purpose of the suit. On these among other grounds, he argued for dismissal of the suit by reversing the judgment of the Court below, 7. Per contra, Sri Nanjunda Reddy, Learned Senior Counsel appearing on behalf of the plaintiff argued in support of the impugned judgment. He contended that the original agreements at Exs. P1 and P4 and the original receipts at Exs.P-5 to P12 executed by the plaintiff are unfortunately lost by the plaintiff, thereby the same could not be produced before the Court below. However, the plaintiff has produced the authenticated copies of the originals, inasmuch as, by then, he had got copies of those documents verified in accordance with law for the purpose of presenting them to the bank for obtaining loan. Defendant No. 2 viz., Mr. Madhavan was not residing with his parents and was living separately; neither Mr. Petunial nor his wife were dependent on Madhavan for any purpose and that they never took any advise from Madhavan on any issue. The evidence on record dearly reveals that Madhavan was staying separately from his parents after his marriage and that the parents were taking care of themselves without the help of defendant No. 2. Since the deceased had confidence in PW-2, he executed Power of Attorney in favour of PW-2 voluntarily authorising PW-2 to sell the property in question for valuable consideration and consequently PW-2 had entered into an agreement as per Ex. P-3 dated 18.9.2011 after receiving certain portion of the sale consideration. Since Perumal has received Rs. 11 lakhs in installments prior to his death by executing three agreements of sale, the final being Ex. P-3 dated 18.9.2011 after receiving certain portion of the sale consideration. Since Perumal has received Rs. 11 lakhs in installments prior to his death by executing three agreements of sale, the final being Ex. P-4 dated 15.11.2001, it is not open for the defendants 2 and 3 to go back on the promise made by Mr. Perumal. He further submitted that Perumal did not give any reply to the notice issued by the plaintiff before filing the suit, calling upon Perumal to execute the sate deed after receiving the balance of sale consideration. Mr. Perumai did not file the written statement in the suit during his life time, which factor would dearly go to show that Perumal was not intending to oppose the suit, but was prepared to accede to the prayers prayed in the suit. On these among other grounds, Sri Narijunda Reddy, argued for dismissal of the appeal and confirmation of the judgment and decree passed by the Court below: 8. Based on the rival contentions, the following points arise for consideration in this appeal: (a) Whether the trial Court is justified in concluding that the deceased had agreed to sell the suit property of Rs. 13 lakhs under three agreements to sell dated 6.12.1998, 18.9.2011 and 15.11.2001? (b) Whether the conclusion reached by the trial Court that the defendant received Rs. 11 lakhs towards part of sale consideration from the plaintiff needs any interference? (c) What order? 9. It is not in dispute that Perumal was the absolute owner of the suit schedule property measuring approximately 1440 sq. ft. The suit property consists of old structure of 70 years, comprising of four tenaments, (Mr. and Mrs. Perumal were residing in one tenament and had leased other three tenaments) Appellant No. l herein is the wife of Perumal and appellant No. 2 herein is the only son of Perumal. The appellant No. 2 has set up his separate home after his marriage because of paucity of space in his parents place. Perumal was working as a Store Keeper in 515, Army Base Workshop, Bangalore. These facts are not in dispute. 10. The material on record probabalises the fact that Perumal was a man of limited means and wants. He mingled with very small circle of friends. After retirement, he was drawing pension of about Rs. Perumal was working as a Store Keeper in 515, Army Base Workshop, Bangalore. These facts are not in dispute. 10. The material on record probabalises the fact that Perumal was a man of limited means and wants. He mingled with very small circle of friends. After retirement, he was drawing pension of about Rs. 2,000/- which was being credited to his savings bank account bearing No. 17675 of Vijaya Bank, Ulsoor Branch, The bank account extracts of Perumal reveal that he received the aforementioned sums of money as pension and used to draw small amounts in hundreds for the purpose of his expenditure. He was also getting rents from three tenaments, which seem to have been spent by Perumal for family expenses, 11. The respondent did not produce the purported agreements of sale dated 6.12.1998 (Ex. P1) and 15.9.2001 (Ex.P4) before the trial Court. However, the photocopies of the same were permitted to be marked despite the objections of the defendants by accepting the reasons assigned by the plaintiff that the originals of the sale documents were lost. The trial Court has concluded that the plaintiff has satisfactorily explained the loss of originals and, therefore, he is entitled to adduce secondary evidence under Section 65 of the Evidence Act by marking the disputed photocopies of the agreements. In this context, the trial Court has recorded an incorrect finding that: “The defendants do not deny the loss of originals in their written statement........ so when defendants in their statement do not dispute photo copies, they were allowed to be marked. When the defendant fails to object to mark the documents, an assumption can be drawn that the opposite party is not serious.” The aforementioned observations of the trial Court are contrary to the material on record. The appellants-defendants have questioned and denied the very existence of the original agreements purported to have been executed by Perumal in favour of plaintiff. In view of the same, the question of defendants denying the loss of alleged original agreements does not arise at all. The trial Court ought to have permitted the plaintiff to adduce secondary evidence only after satisfying itself that the purported attested copies were in fact prepared and produced before the City Bank for raising the loan and were taken back by the plaintiff. 12. The trial Court ought to have permitted the plaintiff to adduce secondary evidence only after satisfying itself that the purported attested copies were in fact prepared and produced before the City Bank for raising the loan and were taken back by the plaintiff. 12. According to the plaintiff, he got the photo copies of the original agreements and receipts with a view to furnish the same before City Bank for the purpose of obtaining loan and as the City Bank officials told the plaintiff that the originals may be submitted later, he took back the original documents alongwith him by leaving the photo copies with the bank. While coming back to his house, he went to a restaurant for taking tea, wherein he forgot the bag containing the original documents. To prove the said aspect of the matter relating to the plaintiff approaching the bank for loan etc, none of the City Bank officials are examined. There is no cogent evidence on record to believe the version of the plaintiff that the originals were lost in transit. Of course, the complaint is lodged by the plaintiff with the police and notice is issued in daily news paper requesting the public to return the bag in case if anybody finds such a bag containing the original documents. That itself may not be sufficient to conclude that the originals are lost by the plaintiff, particularly in the absence of the evidence pertaining to plaintiff approaching the bank officials and the bank officials refusing to accept the originals at that point of time. Having not adduced such evidence, the trial Court erroneously accepted the secondary evidence relating to agreements on which the plaintiff has based the action. 13. One Mr. K.S. Venkataraman is common witness to all the alleged agreements dated 6.12.1998 (Ex. P-1), 15.9.2001 (Ex. P-4), and alleged Power of Attorney dated 6.12.1998 (Ex. P-2), alleged receipts dated 6.11.1998 (Ex. P-5), 22.11.1998 (Ex. P6), 6.12.1998 (Ex. P-7) and 15.11.1999 (Ex. P-9). According to the plaintiff, late Perumal and K.S. Venkataraman were close friends. In the cross-examination, plaintiff has falsely deposed that he does not know said K.S. Venkataraman. A perusal of Ex. D-3 (Encumbrance Certificate dated 19.11.2003) reveals that the plaintiff had purchased an apartment bearing No. F-2. Deepa Residency, Ulsoor, Bangalore, for a sum of Rs. 5 lakhs from the said K.S. Venkataraman under the Sale Deed dated 22.1.2001. In the cross-examination, plaintiff has falsely deposed that he does not know said K.S. Venkataraman. A perusal of Ex. D-3 (Encumbrance Certificate dated 19.11.2003) reveals that the plaintiff had purchased an apartment bearing No. F-2. Deepa Residency, Ulsoor, Bangalore, for a sum of Rs. 5 lakhs from the said K.S. Venkataraman under the Sale Deed dated 22.1.2001. Nevertheless, the plaintiff chose to depose falsely that he does not know said K.S. Venkataraman. Said K.S. Venkataraman is not examined by the plaintiff though he is witness for all the aforementioned agreements and receipts, particularly when the defendants have disputed all the agreements and receipts. On the other hand, the evidence of DWs. 1, 2 and 3 is clear to the effect that late Perumal never knew any person by name K.S. Venkataraman. In the right of such evidence by DWs. 1, 2 and 3, the plaintiff ought to have proved the documents by examining K.S. Venkataraman. In our view, the non-examination of alleged attesting witness K.S. Venkataraman is fatal to the case of the plaintiff, particularly in the light of the defence urged by the defendants. Moreover, the non-examination of K.S. Venkataraman creates great suspicion in the mind of the Court as regards due and valid execution of the alleged sale agreements, receipts and power of attorney. 14. PW-2 is stated to be the Power of Attorney of Mr. Perumal. According to the plaintiff and PW-2. Perumal had executed a power of attorney on 6.12.1998 (Ex. P-2) in favour of PW-2. Acting on such power of attorney, PW-2 is stated to have executed one of the sale agreements dated 18.9.2001 (Ex. P3) in favour of the plaintiff and got the said agreement registered. PW-2 is also stated to be the attesting witness to Exs.P-5, P-6, P-7, P-8, P-10, P-11 and P-12 evidencing payment of nearly about Rs. 11 lakhs in cash to Perumal. Under the facts and circumstances, we are of the opinion that execution of Power of Attorney in favour of PW-2 is highly improbable. It is not in dispute that Mr. M. Ranganath - PW-2 came to Bangalore in August 1998 and was stated to be staying with K.S. Venkatararnan (not examined). PW-2 is not related to Perumal and his family. Even according to M. Ranganath, Perumal and his family members were notknown to him prior to August 1998. It is not in dispute that Mr. M. Ranganath - PW-2 came to Bangalore in August 1998 and was stated to be staying with K.S. Venkatararnan (not examined). PW-2 is not related to Perumal and his family. Even according to M. Ranganath, Perumal and his family members were notknown to him prior to August 1998. The Power of Attorney is said to have been executed in favour of Ranganath in the month of December 1998, i.e., within four months of his arrival to Bangalore. It is not in dispute that Perumal was at least aged about 82 to 84 years during the relevant period. He had a son and wife. Son is educated occupying a high post in Central Government undertaking. Though Perumal’s son is residing separately, there is nothing on record to show that they were not in good terms. Under such circumstances, the say of PW-2 that Perumal had executed Power of Attorney in his favour appears to be highly unnatural and is against natural human conduct. In other words it is highly improbable that Perumal had executed General Power of Attorney in favour of a stranger in respect of his only property, particularly at the time when Perumal’s only son was in touch with Perumal and his wife. In this context, the trial Court is not justified in holding that, as Ranganath was residing near the house of Perumal the execution of GPA in his favour cannot be ruled out, 15. It is relevant to note that the persons who are examined as witnesses in the matter on behalf of defendants and the persons who are stated to have attested the alleged agreements and receipts are total strangers to Mr. Perumal and his family and they are the friends of the plaintiff. 16. Ex. P3 is an agreement dated 18.9.2001 executed by the alleged power of attorney - Ranganath in favour of the plaintiff. The said document is a registered document. It has been executed on nine stamp papers of Rs. 100/- and Rs. 50/- denomination. We have perused the stamp papers. The serial numbers of stamp papers are from 3540 to 3548 and thereafter from 3556 to 3557. Thus, there is an unusual break in the numbers of stamp papers on which Ex. P-3 is stated to have been executed. It has been executed on nine stamp papers of Rs. 100/- and Rs. 50/- denomination. We have perused the stamp papers. The serial numbers of stamp papers are from 3540 to 3548 and thereafter from 3556 to 3557. Thus, there is an unusual break in the numbers of stamp papers on which Ex. P-3 is stated to have been executed. It is curious to note that neither the power of attorney nor other original documents are produced by the plaintiff before the Court on the ground that they are lost. In this context, learned counsel appearing for the defendants is justified in submitting that Ex. P-3 is a concocted document, inasmuch as, no authority was given in favour of PW-2 by Perumal to execute any document much less, agreement of sale-Ex. P-3. Moreover, Ex. P-3 is wholly silent about earlier agreement Ex. P-1 dated 6.12.1998 and the receipts Exs.P-5 to P-ll stated to have been executed by Perumal. There is no reason as to why Ex. P-3 does not advert to Ex. P-1 at all. In this view of the matter, learned counsel appearing on behalf of the defendants is justified in arguing that only to defend before the Court, Ex. P-3 is created by the plaintiff with the help of PW-2. 17. It is curious to note that alleged agreements Ex. P1 and P4 are not registered. They are allegedly lost. Ex. P1 and P4 were allegedly executed by Mr. Perumal in favour of Plaintiff. But the agreement Ex. P3 allegedly executed by P.W. 2 in favour of P.W. 1(Plaintiff) is registered. There is no reason as to why Ex. P3 alone came to be registered and not Ex. P1 and P4. If really Mr, Perumal was interested to sell the property in question in favour of plaintiff, he could have himself executed Ex. P3 also and got the same registered. Ex. P4 is aliegedly executed subsequent to Ex. P3. If it is so even Ex. P4 also could have been executed by alleged Power of Attorney. There was no reason for Mr. Perumal to execute Ex. P4 after allegedly executing power of attorney in favour of P.W. 2. Thus Ex. P1, P3 and Ex. P4 as also the so called power of attorney are surrounded by suspicious circumstances. 18. The case of the plaintiff is that, said Perumal executed agreement of sale dated 6.12.1998 (Ex. There was no reason for Mr. Perumal to execute Ex. P4 after allegedly executing power of attorney in favour of P.W. 2. Thus Ex. P1, P3 and Ex. P4 as also the so called power of attorney are surrounded by suspicious circumstances. 18. The case of the plaintiff is that, said Perumal executed agreement of sale dated 6.12.1998 (Ex. P-1) agreeing to sell the suit property for total sale consideration of Rs. 13 lakhs. According to him, further agreements were entered into between the power of attorney holder of Perumal and the plaintiff as per Exs.P-3; another agreement is allegedly entered by plaintiff with Perumal as per Ex. P-4 and received total sum of Rs. 11 lakhs towards sale consideration. This again appears to be unnatural conduct of any reasonable person purchasing the immovable property. Though the plaintiff has allegedly paid 90% to 95% of the total sale consideration, he has not insisted for execution of the Sale Deed. In the natural course of conduct, he would have insisted for execution of the sale deed rather than obtaining receipts towards payment of sale consideration and execution of further agreements of sale. 19. All payments under the alleged agreements amounting nearly Rs. 11 lakhs were in cash. Admittedly, the plaintiff is a Government employee. He has not produced any material either oral or documentary to demonstrate that he was in fact either capable of raising loan or having such amount in cash during the relevant period. He is also not able to show that he had raised loans. Though in the cross-examination he has deposed that he has records to show that he has withdrawn the said amounts from the bank in the form of loans and paid to Perumal, such records are not produced by the plaintiff. Therefore, adverse inference needs to be drawn against the plaintiff as he has not produced best piece of evidence which was stated to be in his custody and which could have proved the case that he had paid Rs. 11 lakhs in cash to Perumal. 20. Ex. D2 is the savings bank account passbook of Perumal for the period from 1.1.1998 to 3.9.2002. The same does not reflect any entry regarding the cash deposits equal to the sums allegedly received by Perumal from the plaintiff. It is not in dispute that Perumal had only one bank account and he was a pensioner, Ex. 20. Ex. D2 is the savings bank account passbook of Perumal for the period from 1.1.1998 to 3.9.2002. The same does not reflect any entry regarding the cash deposits equal to the sums allegedly received by Perumal from the plaintiff. It is not in dispute that Perumal had only one bank account and he was a pensioner, Ex. D2 is not disputed by the plaintiff. He has not offered any satisfactory explanation in respect of the fact as to why such large sums of money to the tune of Rs. 11 lakhs allegedly received by Perumal was not found in his passbook. 21. Perurnal was not hale and healthy at the time of alleged execution of the agreement of sale. He was old, he was aged more than about 80 years and he needed the help in day-today affairs of life. He was not well both physically and mentally even at the time of institution of suit which is evidenced by an endorsement made by the Process Server in the suit summons issued to Perumal by the trial Court. The Process Server has endorsed behind the suit summons as per Ex. P22 and in the order of temporary injunction as per Ex. P-23 to the effect that the defendant Perumal was not physically and mentally healthy at the time of service of suit summons. Hence, he has also obtained the signature of his son (Madhavan) on the suit summons. Such an endorsement is strangely disbelieved by the Trial Court by observing that such an endorsement is not written voluntarily. There is no reason as to why the Process Server would make false endorsement on the suit summons. It is not open for the trial Court to cast aspersions on the Process Server who served the order of injunction and order of summons on Perumal. The endorsement of Process Server who is the administrative staff of the Court should not have been lightly brushed aside by the Court below, particularly when there is no contrary material to show that Perumal was hale and healthy. As aforementioned, within two months thereafter, Perumai expired. If at all the trial Court suspected the act of Process Server, it could have summoned the Process Server to depose on the said point. Hence, such observations by the trial Court are wholly unsustainable. 22. As aforementioned, within two months thereafter, Perumai expired. If at all the trial Court suspected the act of Process Server, it could have summoned the Process Server to depose on the said point. Hence, such observations by the trial Court are wholly unsustainable. 22. The contention of Sri Nanjunda Reddy, learned Senior counsel that the notice issued by the plaintiff to Perumal is received by him and in spite of the same, Perumal kept quite during his life time, cannot be accepted at all. The records maintained by the Court below are perused in this regard. Though the acknowledgement card contains the signature purporting to be that of Perumal, the same does not bear postal seal. The acknowledgement card would not be returned to the sender of registered post by the postal authorities without putting the seal. The very fact that the seals are not found in acknowledgement card clearly reveal that Perumal has not received the notice and he has not signed the acknowledgement card. These facts clearly go to show that the plaintiff some how want to grab the property of the old man by creating documents. It appears, the plaintiff has created all the material documents in order to knock off the property in question. 23. The signatures stated to have been of Perumal in all the three agreements and the receipts are dissimilar even to the naked eyes. The handwriting expert who has examined the admitted and disputed of Mr. Perumal signatures has opined that the signatures in the said agreements and receipts did not tally with the Perumal’s admitted signatures. The hand writing expert is examined as DW-4. He has clearly deposed that the person who put the admitted signatures (which are encircled in red stamped and marked at A-l to A-14), did not write the disputed signatures (marked Q-1 to Q-38). Ex. D-4 is his opinion. Though he is cross-examined at length, nothing is brought out in his cross-examination so as to discredit his evidence. DW-5 is the Finger Print expert. He has compared the admitted thumb impressions and the disputed thumb impressions of Perumal. However, his opinion is not of much help to either of the parties, inasmuch as, he has opined that he is not able to say as to whether the disputed and admitted thumb impressions were of the same person. DW-5 is the Finger Print expert. He has compared the admitted thumb impressions and the disputed thumb impressions of Perumal. However, his opinion is not of much help to either of the parties, inasmuch as, he has opined that he is not able to say as to whether the disputed and admitted thumb impressions were of the same person. He has said so because the questioned thumb impressions were so distorted that he was not in a position to say definitely as to whose thumb impressions they are. However, he has deposed that the disputed signatures are thoroughly distorted and whereas, in the admitted thumb impressions, the characteristics are sharp and dear. The evidence of DWs.4 and 5 probabalises the case of the defendants that the plaintiff has created the documents such as alleged agreement of sale, receipts, power of attorney, acknowledgement card etc., to suit to his purposes and for the purpose of grabbing the property in one way or the other, particularly, when Perumal was old and infirm. This Court is of the firm opinion that taking undue advantage of helpless situation and old age of Perumal and his wife, the plaintiff has created a story by fabricating and creating the documents. 24. It is by now well settled that jurisdiction of the Court ordering for specific performance is wholly discretionary. Such discretion vested in the Courts is required to be exercised in a manner guided by established judicial principles and not arbitrarily. In spite of overwhelming suspicious circumstances surrounding the execution of the agreements receipts and other documents in question, the trial Court has erroneously granted the decree for specific performance of the suit agreements. The Court below has not at all considered the plaintiffs conduct and the surrounding circumstances from the date of alleged agreements of sale till the date of institution of the suit. The conduct of the plaintiff is highly questionable and he has not come to the Court with clean hands. We find that the plaintiffs case is wholly unworthy of acceptance. In view of the same, the suit ought to have been dismissed by the trial Court. 25. Since we find that the judgment and decree passed by the trial Court is erroneous under the facts and circumstances of the case, the same needs to be set aside. Accordingly, the following order is made. In view of the same, the suit ought to have been dismissed by the trial Court. 25. Since we find that the judgment and decree passed by the trial Court is erroneous under the facts and circumstances of the case, the same needs to be set aside. Accordingly, the following order is made. The judgment and decree passed by the trial Court in O.S. No. 15523/2002 stands set aside. O.S. No. 15523/2002 filed by the respondent herein for specific performance stands dismissed, 26. Appeal is allowed accordingly.