Merely because the plaintiff is ready and willing to perform her part of contract, that itself is not sufficient to grant equitable relief particularly when she failed to establish that the defendants are full-fledged owners of the property and that the other defendants have consented for the transaction and further, allowing specific performance cause undue hardship to the defendants.- the defendants have only possessory title in respect of suit property. In this backdrop, D4 and his wife should not have ventured to alienate a part of suit property without the consent of other defendants - In the result, this appeal is allowed and decree and judgment in O.S.No.588 of 1999 on the file of V Senior Civil Judge, City Civil Court, Hyderabad is set aside and D4 is directed to refund the advance amount of Rs.27,000/- to plaintiff with interest @ 6% p.a. from the date of filing suit till realization. No costs in the appeal.

THE HONBLE SRI JUSTICE U. DURGA PRASAD RAO        

C.C.C.A. No.215 of 2001

07-01-2016

Smt. K. Bhudamma and others.. Appellants

Smt. Vidyadevi and others. . Respondents

Counsel for Appellants  : Sri M. Vijay Reddy

Counsel for Respondent No.1: Sri K. B. Ramanna Dora

<Gist:

>Head Note:

? Cases referred:
1)2011 (3) ALD 774
2)2006 4) ALD 41 (SC)
3)2011 (4) ALD 577
4)AIR 1989 SC 1269
5)(2003) 135 PLR 840 = MANU/PH/0818/2003  
6)AIR 1922 PC 20


THE HONBLE     SRI JUSTICE U. DURGA PRASAD RAO      


C.C.C.A. No.215 of 2001

JUDGMENT:
     Aggrieved by the Judgment and Decree dt.28.06.2001 in
O.S.NO.588 of 1999 passed by the learned V Senior Civil Judge, City Civil
Court, Hyderabad, granting specific performance decree in favour
plaintiff in respect of 42 sq. yds. of site containing one Mulgi and one
room situated in Jawaharnagar, Chikkadpally, Hyderabad, the
defendants preferred the instant appeal.
2.      First defendant is the mother, defendant Nos. 3 to 5 are her sons
and second defendant is her daughter-in-law i.e., wife of the deceased
sonRamalingam.  The Plaintiffs case in brief is that the defendants
are the owners of the premises bearing No. SRT 344 admeasuring 170
sq.yards in Jawaharnagar, Chikkadpally, Hyderabad and out of the said
property, they offered to sell a portion admeasuring 42 sq. yards
consisting of one Mulgi and one room and the plaintiff agreed to
purchase the said property for Rs.2,15,000/- and the defendants
executed an Agreement of Sale dt. 2.8.1997 in favour of plaintiff and
received an advance of Rs.5,000/- as part payment of sale
consideration. It was agreed that the plaintiff should pay the balance of
Rs.2,10,000/- at the time of delivery of possession or registration of the
sale deed by defendants. Subsequently, the defendants periodically
received Rs.22,000/- from the plaintiff and issued receipts. It is the
further case of the plaintiff that inspite of personal request and issuing
notices by the plaintiff asking the defendants to execute a register sale
deed in his favour, the defendants did not yield and he came to know
that they were making efforts to sell the suit property to some 3rd
parties.  Finally, on 10.05.1999 when the plaintiff sent her husband to
pursue the matter, the defendants bluntly refused to execute a sale
deed.  The plaintiff averred that she was ready and willing to perform
her part of contract.  With these averments, she filed the suit.
3.      The defendants filed common Written Statement denying the
plaint allegations:
a) Their primary contention was that the alleged sale agreement dt.
2.8.1997 is a fabricated document as the said agreement was allegedly
executed by D.4 and his wife alone, but the signatures of other
defendants were present in the document.  D.4 and his wife are not the
exclusive owners of the suit property. The alleged notices and plaint
averments would show that as if the agreement of sale was executed
on 22.08.1997, but the agreement would read as if executed on
2.8.1997 and hence it was a forged document and the plaintiff came to
Court with unclean hands.
b)      It is further averred that though the defendants are owners of
the premises bearing No. SRT 344 admeasuring 170 sq. yards but they
are not the absolute owners. The said property was originally allotted
to the husband of the first defendant namely K. Yellaiah by the
Commissioner of Labour, Government of Andhra Pradesh on 8.6.1989.
Subsequently, possession was handed over to K. Yellaiah and since then
all the defendants were staying in the suit premises. K. Yellaiah paid
entire installments to the Commissioner of Labour, but the Sale Deed
was not executed in his favour inspite of his request.  Subsequently,
K. Yellaiah died on 7.05.1995. Thereafter also, the defendants
requested the Commissioner of Labour to execute the Sale Deed in
favour of defendants, but so far the Sale Deed is not executed in favour
of the defendants.  As the Sale Deed was not executed in favour of
defendants, the question of their executing Agreement of Sale in favour
of plaintiff does not arise.  It was further contended that the plaintiff
and her husband are pawn brokers and money lenders running their
shop opposite to the residence of the defendants and due to personal
needs and financial difficulties, D.4 approached the plaintiff and her
husband and requested to lend him Rs.5,000/- as loan.  While paying
Rs.5,000/- to D.4 on 2.8.1997, the plaintiff and her husband obtained
signatures of D.4 and his wife on two blank non judicial stamp papers
worth Rs. 50/- each and on several other blank papers affixed with
revenue stamps on them.  The plaintiff and her husband demanded D.4
to obtain signatures of other defendants on non judicial stamp papers
and also on plain papers as surety. Out of innocence and acute
necessity for money, D.4 insisted other defendants to sign on papers
and they obliged him. D.4 could not repay the loan amount of Rs.5000/-
and requested time for repayment. The plaintiff and her husband
fabricated the Agreement of Sale.  The defendants never received the
notices allegedly sent by the plaintiff.  They never agreed to sell the suit
house to the plaintiff.
4.      Basing on the above pleadings, the trial Court framed following
issues:
1)      Whether the suit Agreement of Sale dt. 2.8.1997 is true,
valid and supported by consideration?
2)      Whether the plaintiff is always ready and willing to
perform his part of the Contract?
3)      Whether the plaintiff is entitled for specific performance
of the suit agreement of sale dt. 2.8.1997?
4)      To what relief?
5)      During trial, Pws.1 to 3 were examined and Exs.A.1 to A.23 were
marked on behalf of plaintiff.   DWs. 1 and 2 were examined and Exs.B.1
to B.5 and Ex.C.1 were marked on behalf of defendants.
6)      The trial Court having regard to the evidence of PW1the
plaintiff, PW2one of the attestors of Ex.A.1 and Pw.3-Bank Manager
stating about passing of Rs.5,500/- from the account of Pw.1 to D.4, has
come to the conclusion that the agreement of sale was genuine. In this
process, the trial Court disbelieved the contention of the defendants
that Ex.A.1 was fabricated after obtaining the signatures of the
defendants on blank papers. The trial Court also disbelieved the
contention of the defendants that they were not the absolute owners
of the suit property and accordingly decreed the suit as prayed for.
        Hence, the present appeal by the defendants 1, 3 and 4.
7)      The parties in the appeal are referred as they were arrayed in
O.S.No.588 of 1999 before the trial Court.
8)      Heard the arguments of Sri M. Vijay Reddy and J. Sreenivasa Rao,
learned counsel for appellants/defendants and Sri K. B. Ramannadora,
learned counsel for respondent/plaintiff.
9)      Now the points that arise for consideration in this appeal are:
1)    Whether Ex.A.1Agreement of Sale and Exs.A.2 to A.10  
Receipts were fabricated by the plaintiff?
2)     If Point No.1 is held in negative, whether the defendants Nos.
1 to 3 and 5 are only attestors to Ex.A.1 and there was no privity
of contract between them and the plaintiff and thereby Ex.A.1
Agreement of Sale is unenforceable ?
        3)    To what relief?
10)     POINT NO.1: The contention of learned counsel for
appellants/defendant is that D.4 for his personal needs borrowed
Rs.5,000/- from plaintiff and her husband, who are money lenders and
in that context, they obtained signatures of D.4 and his wife on some
blank stamp papers and blank white papers containing revenue stamps
and they also obtained the signatures of Defendant Nos. 1 to 3 and 5 as
sureties for the loan and later the plaintiff and her husband fabricated
Ex.A.1--Agreement of Sale and Exs.A.2 to A.10Receipts. He
vehemently contended that when execution is denied by the
defendants, mere proof of their signatures on the document will not be
sufficient to hold that the plaintiff discharged his burden.  The burden
of proof will be on the plaintiff to establish the contents of the
documents and knowledge and consent of defendants thereof.  On this
legal point, he relied upon a decision reported in Chodi Mahalakshmi v.
Koppada Sathiraju .
a)      Per contra, while admitting the burden of proof, learned counsel
for respondent/plaintiff submitted that the plaintiff through the oral
evidence of PWs.1 to 3 coupled with Exs.A.1 to A.10, amply established
that the agreement of sale was not a fabricated document.  Referring
the evidence of PWs.1 and 2, he submitted that they have categorically
stated that all the defendants have executed agreement of sale in
favour of plaintiff after receiving Rs.5000/- as advance and their
evidence could not be shattered in the cross examination.  Apart from
it, he argued that if really the plaintiff and her husband fabricated
Exs.A1 to A10, they would have mentioned in Ex.A1 the entire 170 sq.
yards of the property of defendants instead of a paltry portion of 42 sq.
yards and similarly, they would have fabricated Exs.A2 to A10receipts
as if entire sale consideration or a substantial portion thereof was paid
by them instead of only Rs.27,000/-. Learned counsel argued that the
suit property lies adjacent to the shop of plaintiff and if they fabricated
the agreement of sale to cover entire 170 sq. yards, it would be more
advantageous to them. That they did not do such acts would indicate
that Exs.A1 to A10 were not fabricated documents.
b)      There is no demur on the legal point that mere admission of
signatures of the executants will not relieve the burden of other party
to establish the contents of the document and consent of the
executants for such contents. It is in this context, the evidence placed
by the plaintiff has to be scrutinized to know how far the plaintiff could
discharge her burden. The first argument of the defendants is that
Exs.A1 to A10 were fabricated after obtaining their signatures on blank
papers. This argument has no force because PWs.1 and 2 clearly
deposed that all the defendants were present and executed Exs.A1 to
A10. Their evidence could not be shattered. As rightly pointed out by
learned counsel for respondent/plaintiff, if really the documents were
fabricated, the plaintiff would have mentioned entire 170 sq. yards in
Ex.A1 and payment of entire sale consideration or substantial part
thereof in Exs.A2 to A10 but that was not the case here. Further, the
payments under Exs.A1 to A10 could be believed for the reason that
PW3 avouched encashment of the instrument for Rs.5,500/- covered by
Ex.A6 by D4 from the bank account of plaintiff.  So, if D4 borrowed only
Rs.5,000/- and blank documents were obtained by plaintiff, there was
no reason for him to receive the subsequent amounts. Therefore, the
theory put-forth by the defendants that Exs.A1 to A10 were fabricated
can be discarded.
c)      It should be noted that in the appeal the defendants sought to
file some material documents which include the Xerox copies of blank
stamp papers and blank signed papers. The defendants sought to
establish that on the original of those blank signed stamp papers, Ex.A1
was fabricated. For many reasons this proposed material papers can
not be accepted. Firstly, they have not sought to produce these
documents along with Order XLI Rule 27 CPC petition. Secondly, they
have not adduced any reason as to why these documents were not
produced by them before the trial Court to establish their defence plea.
Thirdly, it is not explained how the defendants got Xerox copies of blank
stamp papers and blank signed papers.  So, the fabrication theory has
no legs to stand. This Point is answered accordingly.
        Now, it has to be seen in the point infra, as to whether the
defendants executed Ex.A1 knowing its contents or they are mere
attestors.
11) POINT NO.2:  Since in point supra it was held that Exs.A1 to A10
were not fabricated, it is now to be seen whether Ex.A1 can be
enforced against the defendants and the wife of D4. A perusal of Ex.A1
would show that only D4 and his wifePramila are mentioned as full
owners and possessors of 42 sq. yards of plot consisting of one Mulgi
and a small room in the premises bearing No.SRT No.344 and there is
no mention about ownership of other defendants thereof. In such a
case a genuine doubt would arise as to why signatures and thumb
impressions of other defendants were obtained on Ex.A1.
The argument of learned counsel for respondent/plaintiff is that all the
defendants and wife of D4 were present and after understanding the
contents of Ex.A1 only they affixed their signatures and thumb
impression and this fact was clearly deposed by PWs.1 and 2 and in that
view, it cannot be said that D1 to D3 and D5 are mere attestors of
Ex.A1.  Alternatively, he argued that out of total extent of 170 sq. yards,
D4 had 1/4th share which is equivalent to 45 sq. yards out of which, he
agreed to sell 42 sq. yards of site along with one Mulgi and one room
and the other defendants in agreement thereof must have attested
Ex.A1 and in that view, the plaintiff is entitled to decree for specific
performance as observed by the trial court. He pointed out that plaintiff
is always ready and willing to perform her part of contract and there
were no laches on her part and on that ground also she deserves a
decree. He further submitted that when the theory of fabrication is
discarded, the genuinity of Exs.A1 to A10 can be accepted. He relied
upon the decision of the Apex Court reported in Sugani v. Rameshwar
Das
a)      Per contra, learned counsel for appellants/defendants argued
that specific performance is an equitable relief and to obtain a decree
the plaintiff must establish that he approached the Court with clean
hands and performed his part of contract and in this process he cannot
take advantage of the weakness in the defence of other side. He would
argue that merely because the theory of fabrication propounded by the
defendants is rejected, there cannot be an automatic conclusion that
D1 to D4 and D5 took part in the sale agreement knowing its contents
fully well and consented thereof. The plaintiff has to independently
establish that fact as the burden lies on her. He argued that the plaintiff
failed to establish that other defendants affixed their signatures and
thumb impression as consenting parties to the transaction upon
knowing its contents.  Neither the recitals of Ex.A1 nor the evidence of
PWs.1 and 2 will give such understanding. On the other hand, in Ex.A1 it
is mentioned as if D4 and his wife alone are executants as being owners
of 41 sq. yards of site. When such is the case, the plaintiff has to explain
as to why the other defendants were made to sign on the document.
So, they can at best be called as attestors to Ex.A1 but not as
executants.  He vehemently contended that there is a lot of difference
between an executant and attestor as the latter is not bound by the
recitals of the document except having knowledge to the transaction
and mere knowledge is not sufficient to bind him with the document.
On this legal point he relied upon the decision of this Court reported in
S.Kondaiah v. C.Sreenivasa Rao . He submitted that unfortunately trial
Court without understanding the distinction between executant and
attestor has erroneously held as if all the defendants executed the sale
agreement after coming to the conclusion that sale agreement was not
a fabricated document.
b)      In the light of above rival arguments, the crucial aspect is
whether D1 to D3 and D5 joined in Ex.A1 as executants after knowing
its contents or whether they were mere attestors to the document.
c)      As rightly pointed out by appellant/defendants, the relief of
specific performance is an equitable relief and the party who claims
such relief shall approach the court with clean hands and establish his
case without depending on the weakness of the other side. In that view,
merely because Ex.A1 is held not a fabricated document, there cannot
be an automatic conclusion that D1 to D3 and D5 are consenting parties
to it.  The burden is on the plaintiff to establish that after fully knowing
about the contents they endorsed their signatures and thumb
impression on Ex.A1. As already stated supra, in Ex.A1 only D4 and his
wife are shown as full owners and possessors of 42 sq. yards of plot
along with one Mulgi and a small room and there is no mention about
the ownership of other defendants. When the other defendants are not
shown as owners of the plot, the burden will be on the plaintiff to
explain as to what made the other defendants to join in the document.
Though PWs.1 and 2 in their evidence have plainly stated that all the
defendants executed Ex.A1sale agreement, they did not explain the
reason for other defendants to endorse their signatures and thumb
impressions on Ex.A1. The trial Court presumed that since the portion
of the site and rooms proposed to be sold by D4 comprise his 1/4th
share in the total extent of 170 sq. yards, himself and his wife were
shown as owners of the said property and other defendants too joined
in the document as consenting parties. When such recital is not there in
Ex.A1 nor spoken by PWs.1 and 2 it is not permissible to draw such
inference. Therefore, D1 to D3 and D5 can at best be held as mere
attestors but not executants of Ex.A1. As rightly argued by learned
counsel appellants/defendants, there is a marked difference between
an attestor and executant of a document.
12)     In S.Kondaiahs case (3 supra) a learned single Judge of this High
Court observed thus:
The terms of the agreement are binding on the executant, and none
else. The role played by the witness is nothing, but the one, connoting
his or her presence at the time of the transaction. At the most, one
can attribute knowledge of the transaction, to the witness. The terms
of a contract are not binding on every one who knows the
transaction. By no stretch of imagination, a witness can be treated,
or become a party to the transaction, nor would he be bound by the
terms of the contract.
13)     In the case of Smt. Chandrakantaben vs. Vadilal Bapalal Modi
the Honourable Apex Court reiterated the same point and held that
there is no presumption that an attesting witness of a document must
be assumed to be aware of its contents.
14)     In Ramesh Chander v. Budha Singh  the High court of Punjab and
Haryana held that mere attestation will not act as estoppel.  The Punjab
and Haryana High Court relied upon the decisions reported in
Pandurang Krishnaji v. M.Thukaram  and Chandrakantabens case
(4 supra). It extracted the observation of the Pricy Council reported in
Pandurang Krishnajis case (6 supra) thus:
"And then further issue is raised as to whether he attested with
knowledge and consented to the transfer. Before their Lordships
consider the circumstances in which that attestation took place, they
think it is desirable to emphasis once more that attestation of a deed
by itself estops a man denying nothing what ever excepting that he
has witnessed the execution of the deed. It conveys neither directly
nor by implication any knowledge of the contents of the document and
it ought not to be put forward alone for the purpose of establishing
that a man consented to the transaction which the document effects. It
is, of course possible as was pointed out by their Lordships in the
case of Banga Chandra Dhur Biswa v. Jagat Kishore Acharya
Chowdhuri A.I.R. 1916 P.C. 110 that an attestation may take place in
circumstances which would show that the witness did in fact know of
the contents of the document but no such knowledge ought to be
inferred from the mere fact of the attestation."
          So, the precedential jurisprudence on the legal issue tells us that
mere attestation of a document is not a proof of the attestor knowing
the contents and consented. Such proof is to be independently
established. In the instant case, as already pointed out supra, the
documents spelled out as if D4 and his wife alone are owners of the
subject matter of sale and they alone were shown as executants. No
doubt, PWs.1 and 2 deposed that all the defendants and wife of D4
were present and executed the document but that is not a sufficient
explanation for the question as to why the other defendants were
made to affix their signatures and thumb impression when they were
not allegedly the owners of the property. The trial court made an
endeavor by presuming that D4 and his wife are owners of 1/4th of joint
family property and hence they were shown as executants and other
defendants as consenting parties. When that fact is not borne out
either in pleadings or in the oral and documentary evidence, in my
considered view, the court cannot make such presumption.
Admittedly, the suit property is a joint family property devolved upon
the defendants through K.Yellaiah, the husband of first defendant.
Hence, D3, D4, D5 and husband of D2 and late Yellaiah were
coparceners and no division took place among them.  Further, though
the plot was allotted to Yellaiah by Commissioner of Labour,
Government of Andhra Pradesh on 08.06.1989, the same was not
registered in his favour or in favour of defendants after his demise.
So, the defendants have only possessory title in respect of suit
property.  In this backdrop, D4 and his wife should not have ventured to
alienate a part of suit property without the consent of other
defendants.  Added to it, in the course of road widening, about 60 sq.
yards of site was already lost by the defendants. So, the remaining
extent would be roughly 100 to 110 sq. yards. Out of which if 42 sq.
yards is to be sold to the plaintiff, it will be difficult for the defendants
to make a living in the remaining portion as submitted by the counsel
for appellants/defendants.  Unfortunately, the trial Court has not taken
into consideration all the above facts. Merely because the plaintiff is
ready and willing to perform her part of contract, that itself is not
sufficient to grant equitable relief particularly when she failed to
establish that the defendants are full-fledged owners of the property
and that the other defendants have consented for the transaction and
further, allowing specific performance cause undue hardship to the
defendants. Hence, the plaintiff is not entitled to specific performance
but having regard to the circumstances of the case, she deserves refund
of advance money from D4. This point is answered accordingly.
15)     In the result, this appeal is allowed and decree and judgment in
O.S.No.588 of 1999 on the file of V Senior Civil Judge, City Civil Court,
Hyderabad is set aside and D4 is directed to refund the advance amount
of Rs.27,000/- to plaintiff with interest @ 6% p.a. from the date of filing
suit till realization.  No costs in the appeal.
          As a sequel, miscellaneous applications pending, if any, shall
stand closed.
_________________________  
U.DURGA PRASAD RAO, J    
Date: 07.01.2016

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