Kerala High Court
Punnoose A.V vs Vinod Varghese on 14 March, 2025
Author: Sathish Ninan
Bench: Sathish Ninan
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SATHISH NINAN
&
THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN
FRIDAY, THE 14TH DAY OF MARCH 2025 / 23RD PHALGUNA, 1946
RFA NO. 18 OF 2013
AGAINST THE JUDGMENT AND DECREE DATED 26.05.2012 IN OS NO.682
OF 2009 OF II ADDITIONAL SUB COURT, ERNAKULAM
-----
APPELLANT/DEFENDANT:
PUNNOOSE A.V.
AGED 50 YEARS
S/O. VARKEY, ATHIKKAKUZHY HOUSE, NEDUMBASSERY KARA,
CHANGAMANAD VILLAGE, ALUVA TALUK, PIN-683585.
BY ADVS.
SRI.P.VISWANATHAN
SRI.AJITH VISWANATHAN
RESPONDENT/PLAINTIFF:
VINOD VARGHESE
AGED 46 YEARS
S/O. VARUNNI, PUTHUPAILIPARAMBIL HOUSE, CHAKIATH ROAD,
ERNAKULAM VILLAGE, KANAYANNUR TALUK, PIN-682012.
BY ADVS.
SRI.ANITH JAMES
SRI.S.VINOD BHAT
SRI.VARGHESE K.PAUL
THIS REGULAR FIRST APPEAL HAVING COME UP FOR HEARING ON
14.03.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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SATHISH NINAN &
SHOBA ANNAMMA EAPEN, JJ.
= = = = = = = = = = = = = = = = = =
R.F.A. No.18 of 2013
= = = = = = = = = = = = = = = = = =
Dated this the 14th day of March, 2025
J U D G M E N T
Sathish Ninan, J.
Challenging the decree in a suit for money the
defendant is in appeal.
2. According to the plaintiff, on 16.01.2008, the
defendant entered into Ext.A1 agreement with him
agreeing to convey an extent of 53.51 ares of property
to the plaintiff, in respect of which the defendant had
an agreement with its owner, one Vijayan. Under Ext.A1,
the total sale consideration fixed was ₹ 1,71,86,000/-.
On the date of Ext.A1 an amount of ₹ 50 lakhs was paid
towards advance sale consideration. The period fixed for
performance was up to 18.04.2008. Subsequently, as per
Ext.A7 agreement dated 18.04.2008, the period was
extended by another 12 months. On the date of Ext.A7 a
further amount of ₹ 20 lakhs was paid towards the sale
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consideration. Subsequently, the plaintiff came to know
that the property was under a mortgage with a Bank.
Alleging failure of the defendant to return the advance
sale consideration, the suit has been filed.
3. The defendant denied Ext.A1. He contended that
he had no transaction with the plaintiff. According to
him, he had various transactions with the brother-in-law
of the plaintiff (who was examined as PW2 in the suit).
In October 2007 he had borrowed an amount of ₹ 2 lakhs
from PW2. As required by PW2, a signed blank paper with
revenue stamps affixed thereon was handed over to him.
Subsequently, the defendant borrowed a further amount of
₹ 3 lakhs. At that time, it was agreed that the property
belonging to the defendant (the plaint scheduled
property) would be conveyed to PW2. Two other signed
blank papers were also handed over to PW2 as was
required by him to prepare an agreement for sale.
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Subsequently, the agreement was extended under Ext.A7,
on which occasion a further amount of ₹ 20 lakhs was
given by PW2 to the defendant. Thus, the defendant
contended that he had no transaction with the plaintiff
and sought for dismissal of the suit.
4. It was the case of the plaintiff that both
Exts.A1 and A7 were written by the defendant in his own
handwriting. The documents were forwarded to a
handwriting expert for his opinion. Ext.C1 is the
report. The expert opined against the defendant. Relying
on the same, the trial court decreed the suit.
5. We have heard Sri.P.Viswanathan the learned
senior counsel for the appellant-defendant and Sri.Vinod
Bhat the learned counsel for the respondent-plaintiff.
6. The points that arise for determination are:-
(i) Was the trial court right in having decreed the suit relying on
the expert opinion, without considering whether sufficient corroborative
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evidence is available to prove the transaction as pleaded by the plaintiff?
(ii) Is the decree and judgment of the trial court sustainable on
the evidence and circumstances on record?
7. According to the plaintiff, both Exts.A1 and A7
were written by the defendant himself. A reading of the
trial court judgment shows that the decree is based on
the report of the handwriting expert (Ext.C1). The Apex
Court has, in a catena of decisions, categorically held
that the evidence of a handwriting expert is generally
of a frail character. Unlike the study of fingerprints,
which is to be considered an exact science, a study on
handwriting is not so. In Sri. Sri Kishore Chandra Singh Deo v. Babu
Ganesh Prasad Bhagat and Ors. [(1954) 1 SCR 919] , the Apex Court
held :-
"Conclusions based on mere comparison of handwriting must, at least, be
indecisive, and yield to the positive evidence in the case."
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In Bhagwan Kaur v. Krishan Sharma and Ors. (AIR 1973 SC 1346) , the Apex
Court cautioned thus,
"The evidence of a handwriting expert, unlike that of a fingerprint expert,
is generally of a frail character and its fallibilities have been quite often
noticed. The courts should, therefore, be wary to give too much weight to
the evidence of handwriting expert."
In Ishwari Prasad Misra v. Mohammad Isa (AIR 1963 SC 1728) it was held
"evidence given by experts of handwriting can never be conclusive because
it is, after all, opinion evidence".
This was reiterated by the Apex Court in Fakhruddin v. The
State of Madhya Pradesh (AIR 1967 SC 1326). In Magan Bihari Lal v. The State of
Punjab (AIR 1977 SC 1091) the Apex Court held that the opinion
of a handwriting expert must always be received with
great caution. It was held that the opinion must be
adequately supported by other internal and external
evidence. The Apex Court referred to the views expressed
by the English and American courts and observed thus,
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"Every one knows how very unsafe it is to rely upon any one's opinion
concerning the niceties of penmanship-Opinions are necessarily
received, and may be valuable, but at best this kind of evidence is a
necessary evil." We need not subscribe to the extreme view expressed by
the Supreme Court of Michigan, but there can be doubt that this type of
evidence, being opinion evidence is by its very nature, weak and infirm
....."
In S. Gopal Reddy v. State of Andhra Pradesh [1996 (4) SCC 596], the Apex
Court referring to the opinion of the handwriting expert
held,
"The evidence of an expert is a rather weak type of evidence....."
We have adverted to the law as above for the reason
that, we feel that the trial court was swung away by
Ext.C1 report of the handwriting expert from the other
materials on record.
8. We proceed to discuss upon the evidence and
circumstances in the case. It is the case of the
defendant that, he had no transactions with the
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plaintiff and that he does not even know him. It is his
case that he is a real-estate broker and had various
transactions with the plaintiff's brother-in-law, who
was examined as PW2, who is also involved in land deals.
Ext.A1 was fabricated on signed blank and revenue stamp
affixed papers, which were entrusted by the defendant to
PW2 in connection with transaction between them. The
defendant had borrowed an amount of ₹ 2 lakhs from PW2
in October 2007. At the time of such borrowal he was
required to hand over a signed blank paper with revenue
stamp affixed thereon to PW2. The defendant and PW2 were
very close to each other and they had several land
dealings together. Subsequently, when the defendant was
in need of further amounts, he agreed to convey the
plaint schedule property in favour of PW2 and received a
further amount of ₹ 3 lakhs. At that time, the defendant
was required to sign two blank papers for the purpose of
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writing an agreement for sale. Subsequently as was
required by PW2, Ext.A7 agreement was executed by the
defendant in favour of PW2 extending the period for
performance.
9. The plaintiff as PW1 has admitted that the
defendant and PW2 are engaged in real-estate business.
He further admitted that PW2 had several land deals with
the defendant. The relevant portions of the deposition
read thus:-
"പതതയയ P.C. ജജജസതന office ൽ യ ച പരതചയയ ടതജണ."
......"പതത real estate Business കജരനജണ."... "P.C. ജജജസതന പതതയമജയത പല
ഇടപജടകളമണജയതരന.".... "P.C. Jose Real Estate Business യചയജറണ. P.C. ജജജസ
എറണജകള) ജതലയതയല ലതയയജര real estate Business കജരനജണ എന പറഞജൽ എനതകറതയതല."
According to PW1, his acquaintance with the defendant is
at the office of PW2. PW2 has admitted that he had
purchased approximately 17 acres of land as per various
documents. He deposed, "പല ആധധാരങ്ങളധായയി ഉദദ്ദേശശം 17 ഏക്കദറധാളശം വസ
ഞധാൻ വധാങ്ങയി. ആ ഇടപധാടയിൽ broker ആരധായയിരുന്നു എന്നറയിയയില." Though PW1
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deposed about the close association of the defendant and
PW2, PW2 would state that he had no transaction with the
defendant. He deposed, "പ്രതയിയശം ഞധാനശം തമയിൽ ഇടപധാടട് ഒന്നുശം ഇല." This
tells of his bona fides and reliability. At any rate,
from the above it has come out that both the defendant
and PW2 had close acquaintance with each other, and they
were involved in real-estate transactions.
10. It is strange and surprising to note that
Ext.A1 agreement for sale is not seen written on a stamp
paper. Two revenue stamps are seen affixed on the third
page of Ext.A1, all the three sheets being plain white
papers. It is to be borne in mind that the plaintiff's
claim is that at the time of execution of Ext.A1, an
amount of Rs. 50 lakhs was paid towards advance sale
consideration. It is in spite of the same that Ext.A1 is
written, not even on stamp paper. Plaintiff, in his
evidence as PW1 has stated that the decision to write
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Ext.A1 agreement was taken one week prior to the date of
Ext.A1. He has also deposed that the defendant had
agreed to bring the stamp paper, but he brought only
revenue stamps. His deposition reads thus, "Ext.A1 ന ഒരജഴ മമ
കരജർ എഴതജൻ ത4രമജനതച." ......... "മദപത) യകജണ രജയമന പതത പറഞതജണ. പതത യകജണ നതല." .... "Stamp പതത
യകജണ നതജണ." The defendant is engaged in real-estate
business and definitely he is aware that an agreement
for sale is executed on stamp papers. When it is claimed
that the defendant went to the office of PW2 to execute
an agreement for sale, it could not be believed that,
instead of carrying the necessary stamp papers with him
he would have gone to the office merely by carrying two
revenue stamps.
11. With regard to Ext.A7, it is the plaintiff's
contention that the period for performance of Ext.A1 was
extended thereunder, whereas according to the defendant,
Ext.A7 was executed in favour of PW2 in respect of the
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transaction with him. Ext.A7 is written on a stamp
paper. The stamp paper is seen purchased in the name of
PW2. PW1 admitted that the stamp paper was purchased by
PW2. He deposed, "Ext.A7 നള stamp paper P.C. ജജജസ ജങത." According to
PW2, the stamp paper was with him. He deposed, "Ext.A7 നള
stamp paper എനന്റെ പക്കൽ ഉണധായയിരുന്നതധാണട്." The stamp paper is
purchased on 01.02.2008 whereas the document is written
only on 18.04.2008, ie. more than two and a half months
later. If the agreement is between the plaintiff and the
defendant, the stamp paper would have been purchased
either in the name of the plaintiff or the defendant.
PW2 is a stranger to the transaction. The agreement
between the plaintiff and the defendant would not have
been written on a stamp paper purchased in the name of a
third party viz. PW2.
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12. So also, as noticed, Ext.A7 is seen written up
more than two and a half months after the purchase of
the stamp paper by PW2. PW2 admitted that the stamp
paper for Ext.A7 was purchased by him. All these would
take forward the defendant's case that his transaction
was with PW2 only and not with the plaintiff.
13. The plaintiff as PW1 has admitted that, when
Ext.A7 was written, the original agreement viz. Ext.A1
was available. His deposition reads, "Ext.A7 എഴതതയജ ജൾ Ext.A1
കകൈവശമുണധായയിരുന്നു. Extension agreement Ext.A1 നന്റെ പുറതട് എഴുതുന്നതയിനട്
തടസ്സമുണധായയിരുദന്നധാ (Q) പ്രതയിക്കട് Ext.A7 എഴുതയി തന്നതട് വയിശശധാസമധായയിരുന്നു.(A)" Ext.A7 is
executed solely for extending the period for performance
of the agreement. If that be so, the period could have
very well been extended by making such an endorsement on
Ext.A1 itself. There is no reason why a separate
agreement should have been written up in the nature of
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Ext.A7.
14. It is important to note that, according to the
defendant, Ext.A7 was executed by him in favour of PW2.
A reading of Ext.A7 shows that it does not refer to
Ext.A1 agreement; it also shows that Ext.A7 is not
executed in favour of the plaintiff. The content of
Ext.A7 is of significance and is extracted hereunder: -
"മുൻ കൈരധാർ പ്രകൈധാരശം, ടയി കൈരധാറയിനന്റെ കൈധാലധാവധയി 12 മധാസദതധാടുകൂടയി നനീടയി വചയിരയിക്കുന്നു.
ആയതയിദലക്കട് അഡശധാൻസട് ഇനതയിൽ 20,00,000/- (ഇരുപതട് ലകശം രൂപ) കൂടയി
കകൈപ്പറയി ഈ കൈരധാറയിൽ ഒപ്പയിടയിരയിക്കുന്നു. (770108 of ICICI bank M.G. Road
branch)."
It does not mention in whose favour it is executed, nor
does it give any indication as to which is the earlier
agreement. The defendant argues that Ext.A7 was written
as required by PW2.
15. According to PW2, the stamp paper upon which
Ext.A7 was written, was with him. As noticed, the stamp
paper was purchased on 01.02.2008, and Ext.A7 is written
on 18.04.2008, suggesting that, he is in the habit of
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purchasing stamp papers and keeping it with him.
16. Ext.A1 agreement recites that, on the date of
Ext.A1 an amount of Rs. 50 lakhs was paid by plaintiff
to the defendant. Such is the averment in the plaint
also. The plaintiff as PW1, in his chief-examination,
would swear that the amount was received by him from PW2
and handed over to the defendant. The defendant denies
the receipt of any amounts from the plaintiff. It is the
case of the plaintiff that PW2 agreed to help him to
purchase the property. It is his claim that the total
sale consideration is Rs. 1.75 crores, out of which half
would be provided by his father. The relevant portion of
the deposition of PW1 reads thus, "എയന അളതയനജയ ജജജസ ഈ ഇടപജടതൽ
സഹജയതകജയമന പറഞതരന @ സയതലജണ 50 ലക) രപ ജജജസ തനത. യമജത) ഇടപജടതന ഏതജണ 1 3/4
ജകജടതരപജയജള) ജ ണ). പകതതജയജള) തക ഞജൻ മടകജനജണജIശതചത. ....... പകതത തക ഞജൻ മടകനത അചൻ പണ) തന
സഹജയതകനത യകജണജണ." Even though the alleged purchase is for
the plaintiff, admittedly he has not paid any amount
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under the agreement.
17. According to PW1, at the time of execution of
Ext.A1 agreement PW2 provided him with Rs. 50 lakhs for
payment to the defendant. This was followed by payment
of another Rs. 20 lakhs to the defendant through the
cheque of PW2. The receipt of Rs. 50 lakhs is denied by
the defendant. According to PW2, the said amount of Rs.
50 lakhs was withdrawn by him from his account with the
M.G. Road Branch of ICICI Bank. He deposed, "വധാദയിക്കട് നകൈധാടുത 50
ലകശം രൂപ എനന്റെ A/c ൽ നയിന്നട് withdraw നചെയ്തതധാണട്. ICICI Bank M.G. Road Branch നല
A/c ൽ നയിന്നധാണട്. കുറചട് cash ഉണധായയിരുന്നു. ബധാക്കയി withdraw നചെയ." If that be
so, it would be easy to produce documents to
substantiate the same. However, no material is produced
to evidence the same. Evidence to show the withdrawal of
such amounts from the Bank would have been the best
evidence to prove the claim of the plaintiff. However,
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it is not produced.
18. It is the argument of the learned counsel for
the respondent-plaintiff that, the burden is on the
defendant to prove that the consideration as mentioned
therein did not pass. As noticed above, the defendant
has denied the very execution of Ext.A1, the receipt of
any amounts from the plaintiff, and also having had any
transaction with the plaintiff. When the amount of Rs.
50 lakhs allegedly paid to the defendant is claimed to
have been withdrawn from the Bank account of PW2,
documents regarding the same would have been available
with PW2, and it would have been the best evidence to
prove the transaction and the genuineness of Ext.A1.
However, relying upon the theory of "burden of proof",
the issue of non-production of the best evidence is
sought to be wished away. The Apex Court in Kundan Lal
Rallaramv. Custodian, Evacuee Property, Bombay (AIR 1961 SCC 1316) held:-
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"It is the duty of a party to a suit in possession of important documents to
produce them in court and if that duty is not discharged the court may as
well draw the presumption which it is entitled to do under Section 114 of
the Evidence Act."
In the said judgment the Apex Court was considering a
case where the relevant account books with regard to
sale of certain goods was withheld from the court and it
was held,
"If such a relevant evidence is withheld by the plaintiff, Section 114
(Evidence Act) enables the court to draw a presumption to the effect
that, if produced, the said accounts would be unfavourable to the
plaintiff".
The duty of a party to produce the best evidence
available was reiterated by the Apex Court in Karbalai
Begum v. Mohd. Sayed and anr (AIR 1981 SC 1977) and Atyam Veerraju And Others
v. Pechetti Venkanna And Others (AIR 1966 SC 629) . In the case at hand
when the claim is that an amount of Rs. 50 lakhs was
withdrawn from the Bank account of PW2, proof with
regard to the same could have been produced before the
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Court. The non-production of the best evidence tells
upon the plaintiff's claim.
19. Though according to the plaintiff the amount of
Rs. 50 lakhs under Ext.A1, followed by an amount of Rs.
20 lakhs, was paid on his behalf by PW2, he has not
repaid it. He deposed, "50 ലക) രപ ദജധാസതന തതരതയക യകജടതതടതല." ........ "Ext.A1
സമയത ജജജസതജനജട ജങതയ 20 ലക) രപയ) ത4ർത യകജടതതടതല." It has come out in
evidence that, even according to the plaintiff, the
entire transaction as claimed by him is funded by PW2.
PW1 has deposed that the necessary instructions with
regard to the transaction was given to the lawyer by him
and PW2. In cross-examination of PW1 it has come out
that he does not know about the court fee paid for the
suit. He admits that the court fee was paid by PW2. The
relevant portion of the deposition of PW1 reads thus,
"ഞധാനശം ദജധാസശം കൂടയിയധാണട് ദകൈസയിനട് ദവണ നയിർദദ്ദേശങ്ങൾ വക്കനീലയിനട് നകൈധാടുതതട് . ......."എത്ര court
fee നകൈധാടുത്തു എന്നറയിയയില. Court fee സമയതട് നകൈധാടുത്തുദവധാ എദന്നധാ എത്ര തവണകൈളധായയി
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നകൈധാടുത്തു എന്നുമറയിയയില."
20. It is relevant to note that the transactions
under Exts.A1 and A7 is claimed to have happened at the
office of PW2 late night after 9 pm. The relevant
deposition reads, "ചർചകൾ നടനത രജതത 9 മണതക ജശഷമജണ." ......."രജതത 10 മണതജയജയട
കരജയറഴതത."
21. The witnesses to Ext.A1 is one Babu and PW2.
The witnesses in Ext.A7 is again the said Babu, and the
brother of PW2. It is the case of the defendant that
Babu was his former business partner. The defendant
produced Ext.B2 agreement to substantiate the same. He
alleges that in the course of their joint business his
signature was forged by Babu, in respect of which there
was a criminal case. He relied on Ext.B4 FIR, Ext.B5
complaint filed by him before the collector etc., to
prove the same. Surprisingly neither in Ext.A1 nor in
Ext.A7, any witness from the side of the defendant has
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signed. It was admitted by PW1, "പതതയയട ഭജഗത നതന സജകതയജയത ആര) ഒ തടതല."
22. PW2 would depose that the property was measured
4 to 5 months prior to the execution of Ext.A1. The
deposition reads thus, "4-5 മധാസശം മുമ്പുതനന്ന property അളന്നുനവന്നട് വധാദയി
പറഞയിരുന്നു." However, PW1 had deposed that he had seen the
property only two months prior to the execution of
Ext.A1. His evidence reads thus, "Ext.A1 ന ഉജIശ) രണ മജസ) മമജണ സ
കണത." Therefore, the evidence of PWs 1 and 2 does not go
together.
23. Though the defendant admitted the execution of
Ext.A7, according to him, it was executed in favour of
PW2. The defendant's case is that at the time he
executed Ext.A7, there were no witnesses to the same. In
spite of such contention, the plaintiff has not cared to
examine any of the witnesses to Ext.A7.
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24. To prove the genuineness of Ext.A1 agreement,
the plaintiff has produced Exts.A2 to A6-copies of title
deed, possession certificate, land tax receipt, etc.
relating to the property of Vijayan, with whom the
defendant had an agreement for sale. The defendant,
though admitted that he had an agreement with Vijayan,
he is categoric that he has not handed over such
documents to the plaintiff. He is unable to explain with
regard to the possession of such documents by the
plaintiff. Be that as it may, if the plaintiff had
entered into an agreement for purchase of property from
the defendant in respect of which the defendant had an
agreement for sale with Vijayan, then necessarily the
plaintiff would have obtained copy of such agreement
from the defendant. He deposed, " പതതയ) തജയന) തമതലള agreement എയന
കജണതചതരന. ആ കരജറതയന copy എയന കക ശമണ." Though the plaintiff claims
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that he is in possession of a copy of such agreement, he
has not produced the same.
25. It is overlooking all the above circumstances
which tells upon the bona fides and genuineness of the
plaintiff's claim, that the trial court has granted a
decree in favour of the plaintiff, relying upon the
opinion of the handwriting expert (Ext.C1). A mere
perusal of Exts.A1 and A7 suggests that the handwritings
in both the documents are different. Ext.A7 is the
admitted handwriting of the defendant. Ext.A7 was
executed at an undisputed point of time. There was no
reason for the defendant to have written Ext.A7 in a
different manner from his usual handwriting. The expert
has proceeded to consider the similarity of certain
alphabets and accordingly opined that Ext.A7 and Ext.A1
are authored by the same person. However, there is no
acceptable corroborating evidence to support the
2025:KER:21538
opinion. In fact all the circumstances as noticed above
is against the same. Magan Bihari Lal v. State Of Punjab (supra) was
a case where the Apex Court declined to accept the
opinion of the handwriting expert who had affirmed the
handwriting in the documents in question, for the reason
that, it is not supported by other internal and external
evidence. We have already adverted to the law, as laid
down by the Apex Court, on the reliability of the
opinion of a handwriting expert. The circumstances
obtaining in the case are overwhelming to decide the
case discarding Ext.C1 opinion of the expert.
26. On the above discussions, we find that the
plaintiff has failed to prove the execution of Ext.A1
agreement, the passing of consideration thereunder and
also that Ext.A7 agreement was executed in his favour by
the defendant. The plaintiff's claim for money based on
Exts.A1 and A7 is thus bound to fail.
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Resultantly, the appeal is allowed. The decree and
judgment of the trial court are set aside. The suit will
stand dismissed. The respondent-defendant shall be
entitled to costs in the appeal.
Sd/-
SATHISH NINAN
JUDGE
Sd/-
SHOBA ANNAMMA EAPEN
JUDGE
kns/-
//True Copy//
P.S. To Judge
