JUDGMENT
Sankarasubban, J.
1. This appeal is filed against the Judgment and decree in A.S. No. 263 of 1989 of a learned single Judge of this Court. Defendant is the appellant before us. The suit was filed by the plaintiff for specific performance of Ext.A2 agreement dated 16-2-1982.
2. The defendant is alleged to have executed Ext.A2 in favour of the plaintiff, who is related to the plaintiff. The plaintiff married defendant’s sister’s daughter. As per Ext.A2, it is seen that two items of properties are agreed to be sold; one is 2 acres and 64 cents obtained by the defendant after the death of the father and the other is 90 cents in Re-survey No. 63. Ext.A2 shows that the property was agreed to be sold for Rs. 140/ – per cent. Rs. 9.000/- was given in advance and further Rs. 37.000/- was given on the day on which the agreement was executed. Ext.A2 further says that the balance amount of Rs. 3.560/- will be paid within nine months and that the defendant should execute the document in favour of the plaintiff.
3. According to the plaintiff, he was ready and willing to perform his part of the contract. The plaintiff requested many times the defendant to execute the sale deed after receiving the balance amount as per the agreement. Thereafter, the plaintiff informed the defendant by notice dated 11-11-1982 that on 15-11-1982 or 16-11-1982, the deed can be executed and that she should be present in the Valapattanam Sub-Registry Office. On these days the plaintiff was present in the Sub-Registry Office. But the defendant was not present.
4. Instead, a reply was given on 13-11-1982 raising untenable contentions. In the reply notice, she had denied the execution of the document and that she agreed to sell the property to the plaintiff. Since the defendant did not execute the sale deed, the present suit was filed for specific performance,
5. The defendant filed a written statement. In the written statement, the defendant denied the execution of Ext.A2 or the receipt of any amount. She has also referred to the notice issued by the plaintiff and the reply given by her. The written statement further states about the relationship between the plaintiff and herself. The defendant further stated that the plaintiffs father -in-law Kunhikannan Nambiar was conducting the case on her behalf, O.S. No. 341 of 1980 and for this purpose, many signed papers were given. The defendant also stated that the extent of the property stated in the agreement is not correct. Actually, the defendant did not get 2 acres and 64 cents. After the death of the father, the extent was reduced because the father himself alienated the property after the execution of the Will. Further, the property under the Will was not exclusively for the defendant but for her children also. These things are known to the plaintiff and the plaintiffs father-in-law. Plaintiffs mother-in-law, who is the sister of the defendant also received similar share under the Will executed by Damodaran Nambeesan. It is further stated that the plaintiffs father-in-law had purchased the property from Damodaran Nambeesan.
6. Another allegation raised in the written statement is that for electrifying the houses of the plaintiff and the defendant. Kunhikannan Nambiar obtained signatures in stamp papers and according to the defendant, it was misusing these papers that the agreement was made. She also stated in the written statement that the publication was made on 17-11-1982 about the misuse of the signed papers. The defendant’s husband also did not agree for the sale of the property. In the written statement it was stated that after the filing of the suit, at the interference of the local people, the plaintiff agreed to withdraw the agreement and as a matter of fact, a statement was prepared. But the plaintiff refused to sign at the last moment.
7. On the basis of the pleadings, issues were raised by the Court below. On behalf of the plaintiff, Exts.Al to A12 were marked and on behalf of the defendant. Exts.Bl to B17 were marked. Exts.Xl and X2 were marked as Court exhibits. PWs 1 to 5 were examined on the side of the plaintiff while DWs 1 to 3 were examined on the side of the defendant.
8. The Court below took the view that the property obtained under the Will by the defendant was not obtained by her exclusively. It belongs to her children also. Further the extent mentioned in the agreement is not correct. The parties themselves admitted that after the execution of the Will a considerable portion of the property had been sold. The trial Court noted that the plaintiff has not made any claim for portion of a lesser extent of property and in that view of the matter, held that the plaintiff is not entitled to the benefit of Section 12 of the Specific Relief Act. Thus, it held that the agreement was frustrated. Regarding the validity of the agreement, the trial Court examined the evidence of PW1, the plaintiff, PW2, the father-in-law and PWS, the scribe. It took into consideration the various circumstances including the contention of the defendant that she signed blank papers and found that the evidence of PWs 1 to 3 are contradictory. It highlighted the fact that no date is mentioned regarding the initial payment of Rs. 9.000/-, even though in the evidence, a particular date is given. Further the Court was of the view that there was no data to show that the plaintiff was having the necessary source to pay the amount. Further, there was no explanation as to why the period of nine months was given for payment of only Rs. 3,560/-, The Court below took Into account the fact that the plaintiff and defendant were neighbours and they were closely related. The property was obtained by the plaintiffs mother-in-law as well as the defendant under the Will and the plaintiff was aware of this fact and in spite of that the plaintiff executed the agreement to purchase 2 acres and 64 cents.
9. Taking into consideration all these facts, the trial Court found that it is a fit case for not granting specific performance. The Court was of the view that there is no proof to show that the agreement was executed. Regarding the alternative relief for the payment of the amount, the Court refused to grant the relief on the ground that there was no evidence to show that the amount was given. Thus, the suit was dismissed. Against the above judgment and decree, the plaintiff filed an appeal before this Court. The plaintiff filed an application for amendment of the plaint. In the amendment application, it was stated that the plaintiff will be satisfied with the sale of the share of the defendant in the property obtained by the defendant and her children under the Will and also for the sale of 90 cents for the same consideration that was prescribed in Ext.A2 agreement, viz., for a consideration of Rs. 46.000/-. The plaintiff will be satisfied with the lesser extent. The amendment application was allowed. Regarding the validity of the agreement, learned single Judge is of the view that by the execution of Ext.Bl, which was signed by the defendant, the defendant has admitted the execution of Ext.A2. Further it was of the view that since the defendant admitted the signatures, the burden was on her to prove that she did not execute the document and this burden has not been discharged. Regarding the contention that there was no prior negotiation for the sale of the property or the payment of Rs. 9,000/-, the learned single Judge believed the evidence of PWsl to 3 and held that the agreement has been executed.
10. After analysing the evidence, the learned single Judge allowed the appeal and gave a decree for the sale of 1/5 share of the defendant in item No. 1 measuring 52 4/5 cents and whole of 90 cents as shown in item No. 2 of the plaint schedule on deposit of the balance consideration before the trial Court within one month from that date. It is against the above judgment and decree that this appeal is filed.
11. We heard learned Senior Counsel for the appellant Sri. P.N.K. Achan and the learned Counsel for the respondent Sri. K. V. Sphan.
12. Sri. Achan contended that the learned Judge has not gone into the facts and circumstances of the case and further was wrong in reversing the judgment and decree of the trial Court. Further, he contends that the decree for specific performance cannot be granted for mere asking and it has to be granted only after the discretion is properly exercised by the Court below. Learned Counsel for the respondent, on the other hand, submitted that before the lower Court, the plaintiff did not exercise the conditions under Section 12 and that is why the suit was dismissed. But in the Appellate Court, he filed an amendment application by which all the conditions necessary have been complied with. He further contended that insofar as the execution of the agreement is admitted, there is no ground exists for interference of the judgment and decree of the learned single Judge.
13. In a recent decision of the Supreme court reported in Mathew v. Kuruvila, 1988 (1) Ker LT 7 : (AIR 1987 SC 2328), it has been held as follows : “S. 20 preserves judicial discretion to Courts as to decreeing specific performance. The Court should meticulously consider all facts and circumstances of the case. The Court is not bound to grant specific performance merely because it is lawful to do so. The motive behind the litigation should also enter into the judicial verdict. The Court should take care to see that it is not used as an instrument of oppression to have an unfair advantage to the plaintiff. It is true that under Section 12 of the Specific Relief Act, the plaintiff can claim relief under the latter part of Section 12(3) at the appellate stage. But the question that conies before us in the facts and circumstances of the case is whether the plaintiff is entitled to get a decree for specific performance and whether the agreement relied on by the plaintiff has been validly executed.
14. It is a case where the execution of the document is denied by the appellant. According to the appellant, the plaintiff and defendant are closely related. There is a suit in which the defendant as well as the plaintiffs wife were parties. That suit was being conducted on their behalf by PW2, father-in-law of the plaintiff. For the purpose of the case, certain blank papers were signed and those papers were used by the plaintiff. Further case is that the houses of the plaintiff and the defendant were not electrified. For the purpose of electric connection, bonds have to be signed and for that purpose, the defendant has signed stamp papers. One such stamp paper is Ext.X2. No doubt, as per the decisions of this Court, when a person has signed blank papers, he has to explain the circumstances under which such signatures are made. In this case, we have to note that the plaintiff and the defendant are not strangers. They are closely related. It is not a case where the defendant-signed after the document was prepared. The defendant has given some explanation regarding the signing of the blank papers. We don’t think, such presumption can be made. The learned single Judge relied on Ext.Bl to show that the defendant had accepted the agreement. We are of the view that merely because Ext.Bl was signed by the defendant, it cannot be stated that all that is said in the settlement is accepted. The conditions in Ext.Bl are laid down for the purpose of settlement. But the plaintiff did not sign the document. In the above view of the matter, we are of the view that much importance cannot be given to the defendants signing Ext.Bl. There are certain other circumstances which give rise to some doubts, one is with regard to the extent of the property brought under sale and that the other is the non-inclusion of other owners of the property. PW2 has admitted that he was a person, who was instrumental in effecting the agreement executed and further he has also stated that he has advanced money on behalf of the plaintiff. His wife as well as the defendant are sisters and they obtained the property under the Will, He is aware of the transaction that took place during the lifetime of the deceased Damodaran Nambeesan. Further, the fact that there are other claimants for the property is also known. These are all facts known to PWsl and 2.
15. It is very difficult to believe that a person who knows about the owner of the property will enter into an agreement only with the one of the co-owners. Further from the evidence, it is seen that when PWsl and 2 went to the house of the defendant for the purpose of executing the sale deed, Rs. 37.000/- was paid. It is not shown on what day, Rs. 9.000/- was paid. The date is not mentioned in the plaint, even though a date is mentioned in the evidence. There appears to be no negotiation also earlier. These are all circumstances, which according to us, goes against the case of the plaintiff and further it is stated that the amount was received for the purpose of marriage of the daughter of the defendant. But nothing is stated about it. It is also stated by the plaintiffs witness that the husband of the defendant was present when Ext.A2 was executed. No reason is stated as to why the husband was not made a witness. While PW2 will say that the husband stated that his presence was enough, PW3 will say that he does not know the reason. There is also sufficient force in the contention that PW3 is not an independent witness. PW3 is related to the plaintiff. He has not seen the defendant’s husband earlier. In the deposition, he told that he cannot recognise the defendant or her husband, even though he can recognise the plaintiff and PW2. Further a doubt has been raised as to why a scribe from far away has been brought when others are available in the locality.
16. It has also come in evidence that PW2 has purchased certain properties belonging to Damodaran Nambeesan. It appears that PW2 wanted to acquire further properties. It is with this intention that Ext.A2 was created. Regarding the means of the plaintiff, there is no evidence except stating that he was at Dubai. The fact that he was at Dubai does not give the presumption that he was having money at that time. Further, the document gives nine months time for the payment of Rs. 3,560/-. Why this time was given ? These are all circumstances, which create some doubts on the validity of the document. Further, we are of the view that even though Section 12 states that claim can be made even at the appellate stage, here is a case where the plaintiff knew the defects even when the document was executed with the defendant. Why did he wait till the appellate stage was reached. Now, the plaintiff agrees for the purchase of portion of the property for the price mentioned in Ext.A2. It appears that the plaintiff has misused the papers signed by the defendant and the case of the defendant appears to be correct. There is also some force in the contention that a look at Ext.A2 will show that the signature was obtained earlier because when we come to the last sentences of Ext.A2, they were crammed and the space between these sentences is very small. Hence, we are of the view that there is no proof to show that Ext.A2 was validly executed by the defendant.
17. In the above view of the matter, we set aside the judgment and decree of the learned single Judge and restore the judgment and decree of the Sub Judge. Appeal is allowed. No costs.