HON'BLE Smt. JUSTICE P.SREE SUDHA
APPEAL SUIT No.575 of 2010
JUDGMENT
1. This appeal is directed against the judgment and decree dated 31.05.2010 passed in O.S.No.171 of 2006 on the file of the learned Senior Civil Judge, Karimnagar, wherein and whereby the suit filed by the plaintiff is dismissed.
2. The plaintiff filed the above suit against the defendants seeking specific performance of agreements of sale dated 11.06.2006 and 14.06.2006 and for declaration that the registered gift settlement deed bearing Document No.10090 of 2006 dated 20.07.2006 executed by the first defendant in favour of second defendant is not binding on the plaintiff.
3. In the plaint, the plaintiff would submit that the first defendant is the wife of the second defendant. The first defendant is the absolute owner and possessor of H.No.8-4-32 situated Dhobiwada-Ganeshnagar. Originally the father of first defendant-Arukolu Mallaiah was the absolute owner of the property and he died intestate about five years back leaving behind the first defendant as his legal heir and as such she became owner by succession. The first defendant offered to sell 2 the suit schedule property to the plaintiff for an amount of Rs.6,00,000/- and also executed agreement of sale on 11.06.2005 and received Rs.70,000/- as part payment of sale consideration and a receipt to that effect was acknowledged in the agreement itself. In the agreement it was also stated that plaintiff should pay the balance sale consideration of Rs.1,30,000/- on or before 15.06.2006 and Rs.4,00,000/- on or before 11.10.2006 and get the sale deed executed by the first defendant either in the name of the plaintiff or his nominee at his cost. The first defendant also agreed to clear all the dues in respect of property tax, electricity charges towards the suit property and keep ready for delivery of all the title deeds at the time of registration. The plaintiff would also submit that he paid Rs.1,30,000/- to the first defendant on 14.06.2006 for which the first defendant executed another agreement of sale in his favour with the same terms and conditions of the sale agreement dated 11.06.2006. The plaintiff also filed original agreements of sale dated 11.06.2006 and 14.06.2006. The plaintiff would also submit that on 01.08.2006 he secured the balance sale consideration of Rs.4,00,000/- and thereby called upon the first defendant to execute the sale deed in favour of the plaintiff as he is ready with the amount of balance sale 3 consideration, but the first defendant postponed execution of the sale deed. Again on 07.08.2006 the plaintiff approached the first defendant and demanded her for registration, but she did not come forward to do so. The plaintiff came to know that on 07.08.2006 the second defendant in collusion with the first defendant, though aware of the agreement of sale, got executed a gift deed dated 20.07.2006 bearing document No.1009 of 2006 on the file of the Sub Registrar, Karimnagar. The plaintiff would also assert that the second defendant also signed on the agreement of sale dated 11.06.2006 executed by the first defendant and that the same is earlier to the gift deed and the plaintiff is not a bona fide transferee of the suit property. The first defendant executed registered gift deed with an evil intention to evade execution of the registered sale deed and as such the plaintiff filed suit for specific performance of agreement of sale.
4. The defendants filed their written statement in which they denied the alleged execution of agreement of sale in favour of the plaintiff and also receipt of the amounts. The defendants would submit that as the first defendant is in need of money availed Rs.10,000/- hand loan from the plaintiff and in that connection the plaintiff obtained blank signatures on several 4 papers including stamp papers as the first defendant is an illiterate. The first defendant would further submit that she was suffering from cancer, to avoid future complications in the family, she had executed the gift deed in favour of her husband- second defendant and that she executed the gift deed in normal way being under the moral obligation and as such the plaintiff has no right to question her right of execution of gift deed. The so called agreement of sale is an unregistered and unstamped and hence it requires registration as per Section 17 of the Indian Registration Act and therefore requested the Court to dismiss the suit.
5. The plaintiff himself examined as P.W.1 and he also examined two attestors of the agreement of sale as P.Ws.2 and 3 and the scribe as P.W.4. Exs.A1 to A5 are marked on his behalf. The first defendant is examined as D.W.1 and her husband is examined as D.W.2 apart from examining a witness on their behalf as D.W.3 and marked Exs.B1 to B3.
6. After taking into consideration the above pleadings, the trial Court framed the following issues on 02.01.2007:
1. Whether the plaintiff is entitled for declaration as prayed for?5
2. Whether the suit agreements of sale, dated 11.06.2006 and 14.06.2006 are true, valid and supported by part consideration.
3. Whether the plaintiff is entitled for specific performance of contract as prayed for?
4. To what relief?
7. The trial Court decided Issue No.2 in favour of the plaintiff holding to the effect that there was an agreement of sale between the plaintiff and the first defendant for an amount of Rs.6,00,000/- and the plaintiff paid Rs.70,000/- at the time of execution of the agreement of sale under Ex.A1 and Rs.1,30,000/- under Ex.A2 also paid by him on or before 15.06.2006. The signatures under Exs.A1 and A2 were admitted by D.W.1. Though she stated that P.W.2 came to their house at 12:00 midnight and paid Rs.10,000/- to her and obtained her signatures and that of P.W.1 and his son and daughter-in-law on blank papers, after one month thereafter P.W.2 came to her house and obtained signatures of P.W.1 and their sons on blank papers. D.W.1 deposed that the plaintiff obtained signatures when he gave Rs.10,000/- to her as a loan and thus there is no consistency in the evidence of D.Ws.1 and 2 regarding obtaining of signatures on blank papers. It was also an admitted fact that the sons of defendants are literates. Even the case of D.W.2 is 6 some signatures were obtained after giving Rs.10,000/- and again after one month they obtained certain signatures. Why they signed on plain papers without opposing on the above two occasions was not explained by him anywhere. The defendants have not given any complaint against the plaintiff for obtaining signatures on blank papers and D.W.2 has not stated regarding the steps taken by him for obtaining signatures on blank papers and he has not given the day, the year in which plaintiff obtained signatures. The second defendant simply stated that they borrowed Rs.10,000/- for treatment of his wife. D.W.1 executed Ex.A1 three years back. Exs.A1 and A2 were executed with a gap of one month. The conduct of D.Ws.1 and 2 remained silent for three years without taking any steps. When plaintiff really obtained signatures on blank papers leads to an inference that they were not obtained on blank papers as stated by D.Ws.1 and 2. Defendants 1 and 2 and her sons attested Ex.A2 and they are capable of reading the contents of Exs.A1 and A2. No literate person would sign on blank papers and they have not taken any legal steps. As the plaintiff examined the attestors and scribe of the agreement of sale and proved the payment of Rs.70,000/- on 11.06.2006 and Rs.1,30,000/- on 14.06.2006 totalling Rs.2,00,000/- out of total sale 7 consideration of Rs.6,00,000/-. The oral evidence of P.Ws.1 to 4 coupled with the recitals of Exs.A1 and A2 goes to show that the agreement of sale under Exs.A1 and A2 is true, valid and supported by consideration.
8. While deciding Issue No.3 regarding ready and willingness to perform his part of contract, the trial Court decided the issue against the plaintiff. The trial Court observed that the plaintiff has not issued any legal notice requesting the defendants to receive the balance sale consideration and execute sale deed in his favour. Though the plaintiff stated that he approached the defendants and requested to receive the amounts, he has not stated on whose favour he requested them to receive the balance sale consideration. If at all the plaintiff intended to give the balance sale consideration, he would have secured the third parties, and therefore, his conduct shows that he never approached the defendants with the balance sale consideration and he was not at all ready and willing to perform his part of contract.
9. Insofar as Issue No.1 is concerned, the trial Court observed that D.W.1 was suffering from cancer and as such she executed gift deed in favour of her husband and it was not 8 executed by her to deprive the rights of the plaintiff and accordingly dismissed the suit. Aggrieved by the said order, the plaintiff preferred this appeal.
10. Learned counsel for the appellant-plaintiff would contend that the agreement of sale under Exs.A1 and A2 was executed in favour of the plaintiff and later the first defendant executed gift deed in favour of her husband and hence the transfer under the gift deed was subject to the plaintiff's right as the agreement holder and is invalid. Learned counsel would further argue that out of the total sale consideration of Rs.6,00,000/- the plaintiff paid substantial amount and he is ready and willing to pay the balance sale consideration on or before 04.11.2006 and there was no default on his part as per the conditions of Exs.A1 and A2. Learned counsel would also submit that the plaintiff offered to pay the balance sale consideration of Rs.4,00,000/- on 01.08.2006 and demanded the defendants for execution of the registered sale deed, but they avoided to receive the same and also execution of the sale deed on one pretext or the other. Learned counsel would also assert that the trial Court erred in appreciating the facts in its true perspective when the plaintiff requested the defendants on 07.08.2006 but they avoided registration on one or the other pretext and that the alleged gift 9 deed was executed when the agreement of sale was in force and as such the transfer of schedule property by way of gift was illegal. Learned counsel for the plaintiff would further assert that two agreements of sale in respect of the same property were executed only as an abundant caution. When the defendants pleaded that the plaintiff obtained signatures on blank papers, the burden of proof shifted on them under Sections 101, 103 and 106 of the Indian Evidence Act, and they failed to discharge the same. Learned counsel would also contend that the defendants on the one hand denied execution of Exs.A1 and A2 and on the other hand stated that there is no passing of balance consideration as agreed under Exs.A1 and A2 and thus they cannot blow hot and cold at the same time. The plaintiff examined attestors and scribe of agreement of sale but the trial Court did not appreciate the facts properly and hence requested the Court to set aside the judgment of the trail Court.
11. Heard the learned counsel on either side and perused the records.
12. On 11.06.2006 agreement of sale was initially executed between the first defendant and the plaintiff in which D.W.1 clearly stated that she agreed to sell her house bearing No. 10 8-4-32 (New), 8-4-66 (old) at Ganeshnagar, in favour of plaintiff for a total sale consideration of Rs.6,00,000/- and it is in an extent of Ac.0.02 guntas for which as a token the plaintiff paid Rs.70,000/- and the first defendant received the same and the plaintiff has to pay Rs.1,30,000/- on or before 15.06.2006 and the balance Rs.4,00,000/- is to be paid within four months ie., 11.10.2006 and then the first defendant can execute the sale deed in his favour. The said agreement was written by R.Krishna in his own handwriting and it was signed by D.Ws.1 and 2, and their sons and it was also signed by six witnesses. Within three days the parties entered into an agreement of sale on stamp papers dated 14.06.2006 in which it was clearly mentioned that D.W.1 daughter of Arukolu Mallaiah died about five years back leaving the first defendant and as such she became owner by succession and purchaser paid Rs.2,00,000/- on that day towards earnest money and vendor acknowledged receipt of the said amount and the balance shall be paid on or before 11.10.2006. It was also mentioned that the properties sold shall be measured and boundaries shall be fixed by the vendor before execution of the registered sale deed and vendor shall handover the original link documents and deliver vacant possession to the purchaser and he shall clear off all the dues, 11 loans, property taxes, electricity charges and other encumbrances before execution of registered sale deed and it was signed by both the parties including four witnesses.
13. Exs.A1 and A2 clearly shows that the signatures were signed by the parties voluntarily and were not obtained forcibly and on perusal it falsifies the version of the defendants that the signatures were obtained on blank papers. The gift settlement deed was executed by D.W.1 in favour of D.W.2 on 20.07.2006. The contention of the defendants is that the plaintiff was not ready and willing to perform his part of contract and he has not given any legal notice. In fact, the plaintiff gave complaint against the defendants on 14.08.2006 in which he clearly stated regarding execution of agreement of sale, payment of Rs.2,00,000/- and further stated that on 07.08.2006 he approached the first defendant with the balance amount of Rs.4,00,000/- along with Sardar Bishan Singh, Jangle Kumar and G.Lachanna and requested for registration of sale deed and then he came to know that she registered a gift deed in favour of her husband on 20.07.2006 itself and as such she refused to register the sale deed in his favour and her husband threatened to kill him as such he filed a complaint for cheating him after receiving Rs.2,00,000/- and hence a case was registered in 12 Cr.No.303/2006 under Sections 420 and 506 IPC against the first and second defendants.
14. The defendants would contend that the criminal case foisted by the plaintiff against them was ended in acquittal on 13.09.2011. Though the plaintiff preferred an appeal in Criminal Appeal No.113 of 2011, it was dismissed on 19.08.2013. No doubt, the result of the criminal case is not binding on civil Court but as per the complaint dated 14.08.2006 it is established that the plaintiff was ready and willing to perform his part of contract on 07.08.2006 itself by the time the first defendant registered gift deed in favour of her husband. Admittedly the gift deed was executed before 11.10.2006 i.e. during the subsistence of the agreement of sale between the plaintiff and the first defendant, and therefore, it clearly establishes that the gift deed was executed only to evade the transaction entered by the defendants with the plaintiff and to deprive his rights. The trial Court without appreciating the facts properly dismissed the suit.
15. Learned counsel for the appellant would rely upon a decision of the Apex Court reported in ANIL RISHI V/s. 13 GURBAKSH SINGH1 in which the distinction between burden of proof and onus of proof was clearly laid down by the Hon'ble Apex Court. As rightly pointed out by the plaintiff herein that when the defendants has taken a defence that plaintiff obtained signatures on blank papers, onus of proof shifts on them, but they failed to discharge the same. Learned counsel for the plaintiff would also submit that the plaintiff had paid substantial amount of sale consideration and also ready to pay the balance sale consideration before the due date and as such he is entitled for the relief of specific performance of contract. As it was amply established that he plaintiff is ready and willing to perform his part of contract, this Court finds that the judgment of the trial Court is patently erroneous and is liable to be set aside to that extent.
16. In the result, this appeal is allowed and the judgment and decree under appeal is set aside. The defendants are directed to execute registered sale deed in favour of the plaintiff on receiving the balance sale consideration within two months from the date of this judgment. If the defendants fail to execute the same, the plaintiff is at liberty to get it executed through the Court of law. In consequence, the alleged gift deed executed by 1 (2006) 5 SCC 558 14 the first defendant in favour of her husband-second defendant stands cancelled automatically.
17. Miscellaneous Petitions, if any, pending in this appeal shall stand closed in the light of this final judgment.
____________________ P.SREE SUDHA, J.
25th NOVEMBER, 2022.
PGS