COMMON JUDGMENT R.S.A. No.175 of 2012 has been filed by the defendant in O.S. No.139/2010 on the files of the Principal Sub Court, Kottayam under Section 96 read with Order XLI Rule 1 and 2 of the Code of Civil Procedure, 1908, challenging the decree and judgment in the above case dated 22.12.2011. The respondent herein is the plaintiff in the above suit. 2. R.F.A. No.258 of 2012 also has been filed challenging the decree and judgment in the same case, at the instance of plaintiff, arraying the defendant as the respondent. 3. Heard both sides, in detail. Perused the verdict under challenge and the records of the trial court. 4. Parties in these appeals shall be referred as “plaintiff” and “defendant” with reference to their status before the trial court. 5. In a nutshell, the case of the plaintiff is that, the defendant, who is none other than her brother, executed a sale agreement on 05.02.2009 and agreed to sell the plaint schedule property, having an extent of 1 acre 10 cent, at the rate of Rs.10,000/- per cent. The further case of the plaintiff is that, on the date of execution of the agreement itself, the entire sale consideration to the tune of Rs.11 Lakh was handed over, but the sale deed was not executed, since a case pertaining to the plaint schedule property had been pending before the Munsiff Court, Changanacherry as O.S. No.282/2008. According to the plaintiff, even though the plaintiff requested and demanded execution of the sale deed in terms of Ext.A1 agreement, the same was not heeded by the defendant. Accordingly, notice was issued to the defendant to be present on 03.02.2010 at SRO, Thengana. Thereafter, the present suit was filed seeking execution of sale deed in respect of the plaint schedule property in terms of the sale agreement. In the alternative, return of advance amount also was sought for by amending the plaint. Readiness and willingness on the part of the plaintiff also was incorporated by amending the plaint. 6. The defendant filed written statement contending that, there was no agreement executed on the said date or on any other dates with regard to the plaint schedule property, either for sale or for any other purposes. The defendant had no reason or intention to sell out his property. The averments that the defendant had accepted Rs.11 Lakh also was denied. The defendant filed written statement contending that, there was no agreement executed on the said date or on any other dates with regard to the plaint schedule property, either for sale or for any other purposes. The defendant had no reason or intention to sell out his property. The averments that the defendant had accepted Rs.11 Lakh also was denied. It was contended that the plaintiff had no source of income to pay the said sum to the defendant as on the date of alleged execution of the agreement. According to the defendant, the agreement was a forged one and the defendant had no connection with the same. Accordingly, he pressed for dismissal of the suit. 7. The trial court ventured the matter and raised the following issues: 1. Whether there was execution of sale agreement by defendant on 05/02/2009? 2. Whether there was advancement of ?11 lakhs as consideration by plaintiff? 3. Is the plaintiff entitled to get a decree of specific performance of contract for sale? 4. Reliefs and costs. 8. PWs 1 to 3 examined and Exts.A1 to A4 marked on the side of the plaintiff. Ext.B1 marked on the side of the defendant. 9. On anxious consideration of the evidence tendered, the learned Sub Judge disallowed the discretionary relief of performance of contract and allowed the alternative relief of return of advance amount to the plaintiff along with interest at the rate of 6% per annum from the date of the suit till realization. 10. While assailing the grant of alternative relief, the learned counsel for the defendant argued that, Ext.A1 agreement was not executed by the defendant and the evidence supporting proof of Ext.A1 also not convincing. According to the counsel for the defendant, the plaintiff failed to prove Ext.A1 agreement and also failed to prove the source of income to advance Rs.11 Lakh, as stated in Ext.A1 agreement. Accordingly, the plaintiff is not entitled to get the alternative relief also. According to the learned counsel for the defendant, in a suit for specific performance, it is the duty of the plaintiff not only to make specific statement and averment in the plaint, but it is obliged to adduce necessary oral and documental evidence to show the availability of funds to make the payment in terms of the contract, in time. According to the learned counsel for the defendant, in a suit for specific performance, it is the duty of the plaintiff not only to make specific statement and averment in the plaint, but it is obliged to adduce necessary oral and documental evidence to show the availability of funds to make the payment in terms of the contract, in time. The learned counsel for the defendant has placed a decision of the Apex Court reported in R.Shama Naik v. G.Srinivasiah [2024 KHC OnLine 6671] in support of his contentions. Two other decisions of the Apex Court reported in C.S. Venkatesh v. A.S.C. Murthy (D) by LRs & Ors [ (2020) 3 SCC 280 ] and U.N Krishnamurthy (since deceased) Thr. Lrs. v. A.M. Krishnamurthy [2022 LiveLaw (SC) 588] also have been placed to assert his point. In U.N Krishnamurthy ’s case (supra), in paragraph Nos. 33 and 34 the Apex Court held as under: 33. In a suit for Specific Performance of a contract, the Court is required to pose unto itself the following questions, namely:- (i) Whether there is a valid agreement of sale binding on both the vendor and the vendee and (ii) Whether the Plaintiff has all along been and still is ready and willing to perform his part of the contract as envisaged under Section 16(c) of the Specific Relief Act, 1963. 34. There is a distinction between readiness and willingness to perform the contract and both ingredients are necessary for the relief of Specific Performance. In His Holiness Acharya Swami Ganesh Dassji v. Sita Ram Thapar cited by Mr. Venugopal, this Court said that there was a difference between readiness and willingness to perform a contract. While readiness means the capacity of the Plaintiff to perform the contract which would include his financial position, willingness relates to the conduct of the Plaintiff. The same view was taken by this Court in Kalawati v. Rakesh Kumars . 11. Repelling the arguments at the instance of the learned counsel for the defendant, the learned counsel for the plaintiff argued that, the plaintiff examined herself as PW1 and also examined PWs 2 and 3 the attesting witnesses, to prove the due execution of Ext.A1 agreement. Accordingly, the execution of Ext.A1 is proved. 11. Repelling the arguments at the instance of the learned counsel for the defendant, the learned counsel for the plaintiff argued that, the plaintiff examined herself as PW1 and also examined PWs 2 and 3 the attesting witnesses, to prove the due execution of Ext.A1 agreement. Accordingly, the execution of Ext.A1 is proved. It is pointed out that, if a party to a suit does not appear in the witness box to state their own case and does not offer themselves to be cross-examined by the other side, a presumption would arise that the case set up by the said party is not correct. In support of this contention, he has placed decision of the Apex Court reported in [2022 LiveLaw (SC) 58] Seethakathi Trust Madras v. Krishnaveni , with reference to paragraph No.12 thereof. The same is as under: 12. An aspect emphasised by learned counsel for the Appellant was that the Respondent chose not to depose in support of her own case, and the manager who deposed admitted that he had no power or authority to do so. The Respondent alone had knowledge of the alleged facts as appeared from the deposition of the manager and, thus, an adverse inference must be drawn against the Respondent in view of the judicial pronouncements in Vidyadhar v. Manikrao and Anr.? and Man Kaur (Dead) by LRs v. Hartar Singh Sangha ?. It has been held in these judicial pronouncements that if a party to a suit does not appear in the witness box to state their own case and does not offer themselves to be cross-examined by the other side, a presumption would arise that the case set up is not correct. The latter of the two judgments has discussed the earlier judgments and catena of other judicial views to the same effect and opined that a plaintiff cannot examine his attorney holder in his place, who did not have personal knowledge either of the transaction or of his readiness and willingness in a suit for specific performance. Thus, a third party who had no personal knowledge cannot give evidence about such readiness and willingness, even if he is an attorney holder of the person concerned. 12. Now the points arise for consideration are; 1. Thus, a third party who had no personal knowledge cannot give evidence about such readiness and willingness, even if he is an attorney holder of the person concerned. 12. Now the points arise for consideration are; 1. Whether the plaintiff proved execution of Ext.A1 agreement so as to get the relief of specific performance of the same or the alternative relief to get back the advance sale consideration? 2. What inference is to be drawn when sale agreement is allegedly executed after paying the entire sale consideration, without opting for the execution of the sale deed itself? 3. Whether the decree and judgment would require interference, in any manner? 4. Reliefs and costs. 13. While pursuing the relief of specific performance of Ext.A1 agreement, which was denied by the trial court, the learned counsel for the plaintiff placed decision of the Apex Court reported in [ (1979) 4 SCC 393 ] Prakash Chandra v. Angadlal and Others , wherein it has been held as under: The ordinary rule is that specific performance should be granted. It ought to be denied only when equitable considerations point to its refusal and the circumstances show that damages would constitute an adequate relief. In the present case, the conduct of the appellant has not been such as to disentitle him to the relief of specific performance. Even if a sum has been named in the contract for sale as the amount to be paid in case of a breach the appellant is entitled in law to the enforcement of the agreement. 14. The specific case of the plaintiff is that, as per Ext.A1 agreement, the defendant agreed to sell 1.10 Acre of property viz. the plaint schedule property to the plaintiff at the rate of Rs.10,000/- per cent and accordingly on 05.02.2009, Ext.A1 agreement was executed by the defendant. The further case of the plaintiff is that, on the date of execution of the agreement itself, the entire sale consideration to the tune of Rs.11 Lakh was paid. In order to prove the execution of Ext.A1, the plaintiff herself got examined as PW1. PWs 2 and 3 the attesting witnesses were also examined. PW2 is an independent witness and PW3 is none other than the husband of PW1. By filing chief affidavit, all the witnesses supported execution of Ext.A1. 15. In order to prove the execution of Ext.A1, the plaintiff herself got examined as PW1. PWs 2 and 3 the attesting witnesses were also examined. PW2 is an independent witness and PW3 is none other than the husband of PW1. By filing chief affidavit, all the witnesses supported execution of Ext.A1. 15. According to the learned counsel for the defendant, as per the evidence given by PW1, she obtained 1.5 Acre of land and sold the same. But, as regards to the source to advance Rs.11 Lakh, her evidence is that, she had sold the soil from the property. In fact, no property left as that of the plaintiff to get the said amount by selling the soil. Therefore, in the evidence given by PW1, the source to advance amount of Rs.11 Lakh is an absolute improbability and indeed the same not at all proved. 16. Opposing this contention, the learned counsel for the plaintiff argued that, insofar as the payment of Rs.8 Lakh is concerned, the evidence given by PW1 to the effect that the soil in her property was sold is only to be believed, since PW1 given evidence regarding the sale of her property, when she was examined on 13.12.2011, after the institution of the suit in the year 2009. It is also pointed out that, in the schedule of the plaint itself, it has been specifically stated that on the eastern side of the plaint schedule property, the property of the plaintiff and one Raveendranatha Kurupp were situated. 17. In this matter, in paragraph No.8 of the judgment, the learned Sub Judge observed that, there are some suspicious circumstances surrounding Ext.A1. But, the trial court did not espouse the suspicious circumstances. In this connection, it is held that, when a finding is entered to the effect that a document is in the midst of suspicious circumstances, the court must enlist and explain the suspicious circumstances one by one in detail. Any such finding without doing the said exercise shall be curtailed and such finding cannot be justified. The trial court also found that the defendant did not dispute his signature in Ext.A1. In fact, in the written statement, the defendant denied the agreement in toto and contended the same as a forged document. Any such finding without doing the said exercise shall be curtailed and such finding cannot be justified. The trial court also found that the defendant did not dispute his signature in Ext.A1. In fact, in the written statement, the defendant denied the agreement in toto and contended the same as a forged document. The relevant aspect in this context is, the case put up by the plaintiff on asserting that, Ext.A1 agreement was executed by paying the entire sale consideration. In Ext.A1, it is stated that the sale would be executed after culmination of the case pending before the Munsiff Court, as a subsequent addition in between the signatures of the parties. A bare perusal of Ext.A1 would show that, after putting signatures, the above text was inserted in between signatures of the parties. In fact, nothing available from the evidence to see that there was any legal rider to execute the sale deed itself on the date of execution of the sale agreement, where the plaintiff’s case is that, the entire sale consideration was paid on the date of executing the agreement itself. 18. It is true that, regarding the signature in Ext.A1, no specific denial stated in the written statement of the defendant, though the very execution of the same was denied specifically, alleging the same as a forged document. Now, the question is whether the available evidence is sufficient to prove the execution of Ext.A1 and payment of consideration of Rs.11 Lakh, as contended by the plaintiff? 19. Coming back to the source of the plaintiff to advance Rs.11 Lakh, the evidence of PW1 is that, Rs.8 Lakh out of Rs.11 Lakh was arranged by selling the soil in her property to one George and the remaining Rs.3 Lakh was arranged by giving rubber plantation for slaughter. At the same time, PW1 deposed that Rs.2 Lakh was obtained by her husband as loan. 20. PW3 was cross-examined and his evidence is that, Rs.8 Lakh was arranged by selling the soil and Rs.2 Lakh was availed as loan from his friends and Rs.1 Lakh was obtained by giving rubber for slaughtering. At the same time, PW1 deposed that Rs.2 Lakh was obtained by her husband as loan. 20. PW3 was cross-examined and his evidence is that, Rs.8 Lakh was arranged by selling the soil and Rs.2 Lakh was availed as loan from his friends and Rs.1 Lakh was obtained by giving rubber for slaughtering. One specific question was put to the mouth of PW3 regarding the pendency of the case in relation to the plaint schedule property, he answered that, he was aware of the same and then also the entire sale consideration was paid and it was stated by PW3 that the amount was paid as demanded by the defendant. PW3 also given evidence that there was a case against PW1, before the Munsiff Court, Changanacherry and she appointed a lawyer. But, PW3 did not enquire whether the case would have any rigour on the sale of the plaint schedule property. 21. In this matter, the defendant specifically denied the execution of Ext.A1 in toto, though he did not deny the signature therein specifically. According to the defendant, Ext.A1 is a forged document executed for the purpose of procuring the property of the defendant and there was no source for the plaintiff to give Rs.11 Lakh as contended. 22. As regards the source regarding Rs.8 Lakh is concerned, there is no clarity insofar as the soil from which property was sold and as pointed out by the learned counsel for the defendant, the agreement between one George, in whose favour the soil was allegedly sold, also was produced. 23. In the instant case, the parties are siblings. PW3 admitted that, at the time of the alleged execution of Ext.A1, he was aware about the pendency of a civil suit in relation to the plaint schedule property. Despite the said fact, the plaintiff had paid the entire sale consideration on the date of execution of the agreement itself, that too by arranging a portion of the same by availing loan from various persons, without opting for registering the sale deed itself. Despite the said fact, the plaintiff had paid the entire sale consideration on the date of execution of the agreement itself, that too by arranging a portion of the same by availing loan from various persons, without opting for registering the sale deed itself. Even though the plaintiff put up a case that, the sale deed was not executed because of the pendency of O.S. No.282/2008 before the Munsiff Court, Changanacherry, no evidence adduced to substantiate that the alienation of the plaint schedule property is prohibited in any way, in a case where fractional share of the defendant agreed to be sold, as per the case of the plaintiff. In fact, the available evidence would show that there was no rider for executing the sale deed itself instead of executing the sale agreement, where according to the plaintiff, the entire sale consideration was paid to the defendant. 24. In cases where the plaintiff is banking on an agreement for sale, after paying the entire sale consideration, without explaining any legal or practical hindrance otherwise in executing the sale deed itself, the very execution of the agreement is a matter to be addressed with utmost care and caution. That is to say, when a party offers to sell his property and the other party accepts the same, after having consensus ad idem in the matter of sale consideration and paying the sale consideration as such, there is no need to execute the sale agreement because the very execution of the sale deed itself is possible. If so, in cases where a sale agreement alone is alleged to be executed, after paying the full sale consideration, without explaining any legal bar or practical hindrance in the matter of executing the sale deed itself, the inference to be drawn is nothing but to disbelieve the execution of the sale agreement itself. 25. In the instant case, the defendant denied the execution of Ext.A1 and the contents thereof. According to the defendant, the defendant had no intention to sell the plaint schedule property at any point of time and Ext.A1 is a forged document. Here comes the significance of the evidence given by PWs 1 to 3 in support of Ext.A1. 25. In the instant case, the defendant denied the execution of Ext.A1 and the contents thereof. According to the defendant, the defendant had no intention to sell the plaint schedule property at any point of time and Ext.A1 is a forged document. Here comes the significance of the evidence given by PWs 1 to 3 in support of Ext.A1. PW2, who is an independent witness to Ext.A1, when questioned regarding the attending circumstances in connection with the execution of Ext.A1, he failed to answer many queries and his answer to many queries was that, he did not remember. As regards to the source of the plaintiff to advance the money to the defendant is concerned, the evidence of PW1, the plaintiff and the evidence of PW3, the husband of the plaintiff are contrary. No evidence let in to show that the above amount was at the hands of the plaintiff as deposed by PWs 1 to 3. 26. Overall re-appreciation of the evidence available would show that the case put up by the defendant, denying the execution of Ext.A1 is more probable, particularly when there was attempt to insert some texts in between the signatures of the parties on the last page of the agreement, along with the reasons already discussed at length. 27. Therefore, the evidence available in the instant case is quite insufficient to prove the execution of Ext.A1. Accordingly, the plaintiff is not entitled to get either the relief of specific performance of Ext.A1 or the relief to get the advance sale consideration. Contra finding entered by the trial court is found unsustainable. In view of the above, the verdict impugned requires interference and the same is liable to be set aside. 28. In the result, R.F.A. No.258/2012 is found to be meritless and accordingly, the same stands dismissed. Consequently, R.F.A. No.175/2012 stands allowed and the decree and judgment under challenge in this appeal stand set aside and the suit is dismissed. 29. Considering the nature of contentions raised and the relationship between the parties as siblings, the parties are directed to suffer their respective costs. All interlocutory applications pending in these regular first appeals stand dismissed.