Sardar Jasbeer Singh vs Varukolu Laxmi Varukolu ...
2022 Latest Caselaw 6171 Tel

           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

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

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

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?

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

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

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

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

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.

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,

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

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.

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

(2006) 5 SCC 558

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