JUDGMENT
Srinivasan, J.
1. The plaintiff is the appellant. The defendants have filed a memorandum of cross-objections. The suit is one for specific performance of an agreement for sale. The case of the plaintiff is as follows:
On 9.3.1977, the first defendant, who is the owner of the property entered into an agreement with the plaintiff for sale of the suit properly for a total consideration of Rs. 1,10,000 and received an advance of Rs. 25,000. It was agreed that the sale should be completed within a period of one year. Ultimately, a term was introduced by agreement that before the month of ‘Thai’ in the next year, possession will be handed over and the sale deed will be executed. The defendant was in need of money in order to perform his sons’ marriages. He was also in debts and as a manager of the joint family consisting of himself and his sons, he had to meet the needs of the family. There was legal necessity for selling the property and that was the reason for the defendant agreeing to sell the same. Though the property was the self-acquired property of the first defendant, he agreed to get the signatures of his sons in the said deed. When the plaintiff called upon the defendant to execute the sale deed in January 1978, the first defendant wrote a letter containing false allegations and concocted a new story that he intended to execute only a mortgage and there was an agreement only for that purpose. The case of the defendant is false and the plaintiff having parted with a sum of Rs. 25,000 was entitled to get a sale deed from the defendant on payment of balance. The plaintiff is prepared to deposit the balance into court.
2. The first defendant filed a written statement contesting the genuineness of the agreement. According to the first defendant, he was in need of money for having an operation for cataract in his eye and he approached the plaintiff therefor. He wanted a loan of Rs. 40,000 and agreed to execute a mortgage in favour of the plaintiff over the suit property. For the purpose of preparing an agreement to execute a mortgage, he signed certain papers at the places shown by the plaintiff and at that time he could not see due to cataract, he signed as directed by the plaintiff, without seeing what exactly the papers on which he had signed. He received a sum of Rs. 15,000 only from the plaintiff and got himself admitted in the General Hospital at Madras. After his discharge he got a letter from the plaintiff and when he wrote to the plaintiff to prepare the mortgage deed, the plaintiff came forward with a case that there was an agreement for sale. The agreement for sale is a fabricated one and the plaintiff is not entitled to have a decree for specific performance. The properly is joint family property and there was no legal necessity and it is not binding on the sons of the defendant.
3. The first defendant died soon after the filing of the suit and his legal representatives were brought on record as defendants 2 to 8. The second defendant is the widow and defendants 3 to 5 are the sons while defendants 6 to 8 are the daughters. The legal representatives filed a formal written statement adopting the written statement already filed by their father and adding that they were not aware of the suit agreement and the first defendant had no right to enter into an agreement in respect of the entire property. They also contended that the first defendant was in affluent circumstances and had no necessity whatever to borrow any money.
4. The trial court framed six issues and one additional issue. The trial court held that the suit agreement is true and the first defendant intended to sell his property to the plaintiff. It also held that the first defendant had received a sum of Rs. 25,000 and his case that he received only Rs. 15,000 was not true. The trial court held that the property was a joint family property and there was no evidence as to the application of the money for necessary purposes. Consequently, the trial court passed a decree in favour of the plaintiff for specific performance of the contract with respect to undivided 1/4th share of the first defendant. The trial court directed the plaintiff to deposit a sum of Rs. 25,000 towards the balance of sale price thereby reducing the consideration to 1/4th of what was agreed. Obviously, the trial court took the view that the decree being for specific performance of, 1/4th share, the consideration should also be only for 1/4th thereof. There can be no doubt that the said decree is erroneous and if at all the trial court could have directed sale of 1/4th share for the full consideration of Rs. 1,10,000 and not for 1/4th thereof.
5. In the appeal, the plaintiffs counsel contends that the trial court had taken an erroneous view inasmuch as it held that there is no proof of the application of money for necessary purpose. Counsel argues that the property is the self-acquired property of the first defendant and the finding of the court below is erroneous on that aspect also. It is contended that the agreement is supported by legal necessity and it is binding on all the sons of the first defendant.
6. Per contra, learned Counsel for the respondents contends that the agreement itself is not true and the finding of the court below on that question is unsustainable. According to him, what was agreed to by the first defendant was only an agreement for mortgage and not an agreement for sale. He submits that the evidence makes out that the plaintiff has not come to court with a true case and if at all the first defendant had received only a sum of Rs. 15,000 by way of loan. He contends that there should be no decree for specific performance of any part of the contract.
7. We take up for consideration the question as to whether Ex. A-2 is genuine and there was an agreement for sale as contended by the plaintiff. Several circumstances have been pointed out by learned Counsel for the respondents which create a grave suspicion as to the genuineness of the agreement. Ex. A-2 comprises of six stamp papers, five of them being for 50 paise each and one 25 paise. The fifty paise stamp papers have been purchased from one R.K. Nagaraja Rao, stamp vendor, Karur. The name of the person who purchased the stamps has not been mentioned in the stamp paper. We, however, find the name of one Subramanian in rubber stamp at the top of each stamp paper. It is not clear whether it is the name of the purchaser or name of somebody else. It is quite likely that Subramanian was the purchaser and instead of writing his name in ink, his rubber stamp was utilised and his name was engrossed on the stamp paper with the aid of the rubber stamp. The sixth stamp paper is purchased from one P. Kumar, stamp vendor in Dharmapuri and the name of the purchaser is one Rajendran of Dharmapuri. That was purchased on 7.2.1977, while all the other stamp papers were purchased on 2.3.1977. There is no explanation in the evidence as to why the stamp papers were purchased in Karur and Dharmapuri on some earlier dates. The evidence of P.W. 2 who is admittedly a broker and who according to P.W. 1 bought the stamp papers and got the document typed, is to the effect that he purchased the stamp papers on 9.3.1977, the date which the document bears. According to him, he was sent for by the first defendant to his house on 9.3.1977 at 9 a.m. and when he went there he saw P.W. 1 and the first defendant sitting together. He was told that the first defendant agreed for selling the house to the plaintiff and they wanted an agreement to be prepared. Exs. A-24 and A-25 were handed over to him and he was asked to prepare a draft of the document. He went to his house, prepared a draft and brought it back after getting it typed. There is no explanation in his evidence as to how the stamp papers were purchased such earlier and in different places other than Salem, where the parties were living. P.W. 1 has been cross-examined, on these aspects of the matter in extenso. According to his evidence, there were talks about a week prior to Ex. A-2 and they were concluded on that day. Nobody was present at the time of the talks, on 9.3.1977 stamp papers were purchased by P.W. 2 and they were purchased in the office of the Sub Registrar at Shewapattai, Salem. According to him, they were purchased at about 12 noon on that date and he did not know who typed the document. Thus, his evidence also does not explain as to how the stamp papers were purchased in Karur and Dharmapuri long prior to the date of Ex. A-2.
8. The next circumstance is the absence of any witnesses to the document as such. In the last page, there is a provision for the signature of the witnesses and it is typed as ” “. Below that, nobody has signed his sign. There is a blank space. At the bottom of the page, P.W. 2 has signed after writing “attested by”. He has not explained as to why he has not signed below the word ” “. Nor is there any explanation on his part as to why the signature of any other person was not obtained at that time. According to P.W. 1 and P.W. 2, all the sons of the first defendant were present at that time. Yet, nobody’s signature was taken on the document atleast as a witness. It is the case of P.W. 1 that the first defendant agreed to get the signature of his sons at the time of the sale deed. If that is true he would have certainly obtained the signature of his sons, atleast as witnesses in Ex. A-2.
9. The next circumstance is, in page 2 of the document, a line is written in ink representing the correction made in that page just above the signature. That line is touching the signature of the first defendant. That shows that the signature of the first defendant must have been put before the correction was entered. According to P.W. 2 the corrections were made before the parties signed the document. It is apparent from page 2 that the said version cannot be true. The case of the first defendant that he signed blank papers at the places shown by the plaintiff without seeing what the papers were, appears to be probable. His case that he was suffering from cataract at that time is also proved by Ex. B-20. It shows that he was admitted in the General Hospital, Madras, on 31.3.1977 and discharged on 14.4.1977. This document has been rejected by the learned Judge on the ground that it does not bear the seal of the hospital. Obviously, the learned Judge is not aware that the Government Hospitals do not affix their seals in the out-patient cards given to the patients. The document appears to be quite genuine. It is signed by a Doctor on 14.4.1977. It mentions the treatment given to the patient and also the illness of the patient. It is clearly stated that the patient was suffering from cataract in the right eye. The blood-pressure of the patient is noted. It is seen that his urine has been tested for sugar and the result is negative. There is no reason to suspect the genuineness of the document. It has been produced by D.W. 1, the son of the first defendant, who is the fifth defendant in the court below. We accept the case of the first defendant that he was suffering from cataract and it is quite probable that he was – not in a position to read any document.
10. The document, Ex. A-2, contains corrections in pages 2 and 6. None of the corrections has been attested or initialled by any person. Usually, a document would show as to who typed it or who made the corrections. But Ex. A-2 is silent on that aspect. P.W. 1 has deposed that P.W. 2 told him that there was no necessity for any person to witness the document. But as pointed out already, there is a provision for witnesses. There is no explanation as to why such a provision was made when P.W. 2 who got the document prepared and typed was of the opinion that no witness was necessary. Neither P.W. 1 nor P.W. 2 has even given the name of the person who typed the document. The chief examination of P.W. 2 reads as if he typed it himself. In the cross-examination he admits that he knows to type in Tamil. He says that the document was typed by somebody else without giving out his name. According to him, the name of the typist was not mentioned in the document because he dictated the contents and it was typed by another person. The explanation is hardly acceptable.
11. According to P.W. 1 and P.W. 2, two copies were prepared on stamp papers. The original was retained with P.W. 1 after both parties signed and the copy was handed over to the first defendant. There is a recital to that effect in the document itself. But, P.W. 1 admits in his cross-examination that he has got whether another original of the document with him. Obviously, he means that both copies were with him. There is no explanation as to how both copies are with him. But, the learned trial Judge has chosen to brush aside this admission on the part of P.W. 1 with a remark that it was an inadvertent statement on his part. We are not prepared to hold that there was any inadvertence on the part of P.W. 1, who is not an illiterate and who is admittedly a worldly-wise man. He would not have made any inadvertent statement in the court at the time of evidence. There is no attempt made in the re-examination to explain that it was made by inadvertence. Hence, the admission of P.W. 1 stands and there is no explanation for his having both the copies of the documents. That also belies the recital in Ex. A.2.
12. The corrections made in Ex. A-2 relate to the material terms of the documents. In page 2 it was typed originally that if the plaintiff failed to complete the transaction, he should issue a sum of Rs. 5,000 out of the advance paid and the first defendant shall give back the sum of Rs. 20,000 to him. Later, the figure ‘5,000’ was corrected as ‘25,000’ and the provision for returning a sum of Rs. 20,000 has been struck off. In page 6, a new clause is added that the first defendant shall give possession of the property before the end of the month ‘Thai’ in the next year (Pingala year) and after handing over the key, he should execute the sale deed. In the document as typed originally the provision is to the effect that the transaction should be completed within a period of one year. That could be sufficient to cover the period mentioned in the last clause which is newly added. There is no explanation as to why the last clause was added at the end of the document.
13. The above suspicious circumstances not having been explained by P.W. 1 and P.W. 2, the case of the defendants gets probabilised. The agreement is said to have taken place on 9.3.1977 as per Ex. A-1. The next document which has come into existence is Ex. A-1 dated 27.1.1978 a letter written by the plaintiff to the first defendant. In between there is no correspondence between the two parties. In that letter, the plaintiff has merely stated that there has been a long lapse of time after the agreement relating to the house. The letter docs not say clearly that it was a sale agreement. The other details of the agreement are also not mentioned. Of course, by itself the letter may not create any suspicion. But, taking along with the other circumstances already referred to the contention of learned Counsel for the respondents is well founded in that the plaintiff would have certainly given the details of the agreement in that letter which is written nearly ten months after the date of Ex. A-2. The reaction of the first defendant was immediate. It should be noted that Ex. A-1 was sent by registered post. There was no occasion for the plaintiff to send a registered letter to the first defendant when there is nothing on record to show that the relationship between the parties had become strained between 9.3.1977 and 27.1.1978. If everything was normal, one would expect the plaintiff to approach the first defendant orally or send a letter by ordinary post. Both are residing in the same street, viz. Bangala Street. While the plaintiff was residing in Door No. 35, the first defendant was residing in Door No. 22. There is nothing in the evidence of P.W. 1 to explain the necessity for sending the letter by registered post on 27.1.1978. In that context, the immediate reaction of the first defendant in sending a reply under Ex. A-19, dated 31.1.1978 acquires much significance. In that letter, the first defendant had stated very clearly that the plaintiff had agreed to take a mortgage and prepare an agreement for such a mortgage. The first defendant has also stated that in spite of several attempts made by him, he could not meet the plaintiff and he had already signed all the papers in the places shown by the plaintiff. He has also referred to the receipt of Rs. 18,000 by way of advance and the handing over of all the title deeds to the plaintiff at that time. He has called upon the plaintiff to send the draft document for mortgage immediately. In reply thereto, the plaintiff sent a lawyer’s notice in Ex. A-16, dated 20.2.1978. No doubt in that notice he has stated his own case and that is denied in Ex. A-17, dated 4.3.1978. Then followed the present suit.
14. Thus, the case of the first defendant has been throughout that he signed blank papers at the instance of the plaintiff and he never intended to sell the property or enter into an agreement for that purpose. The first defendant has admitted the receipt of Rs. 15,000. The plaintiffs case is that he has paid a sum of Rs. 25,000 as advance. The plaintiff having come to court with a prayer for specific performance, is bound to prove that he paid Rs. 25,000 by way of advance. In spite of that, there is only his oral evidence and there is no documentary evidence to substantiate that case. Reliance is placed on the recital in Ex. A-2, but that is a disputed document. We have already pointed out the several suspicious circumstances surrounding thedocument Ex. A-2. In those circumstances, the plaintiff ought to have taken steps to prove the payment of Rs. 25,000 which will go a long way to prove his case. Admittedly, he is an income-tax asscsseeand he is maintaining accounts. It is also his case in the evidence that he has entered the payment of Rs. 25,000 to the first defendant in his accounts; but he has not chosen to produce the accounts. Learned Counsel for the plaintiff contends that no notice was issued to the plaintiff to produce the accounts and no adverse inference shall be drawn against him. We are unable to accept that contention. When the burden is on the plaintiff to prove clearly in order to get the equitable relief of specific performance, he ought to have produced the best evidence available with him and his failure to do so would enjoin the court to draw an adverse inference against him. Even if. the burden was not on him, he ought to have produced the best evidence available with him. Vide: Gopal Krishnaji Keikar v. Mohammed Haji Laiif..
15. A perusal of the evidence of P.W. 1 and P.W. 2 in the light of the circumstances set out earlier will show that neither of them has spoken the truth. The mere fact that the trial Court had seen the witnesses in the box and watched their demeanour and chosen to accept their evidence will not prevent this Court from appreciating the evidence and holding that their evidence is not believable particularly when all the circumstances relevant are available on record. In fact, the trial court has not chosen to accept the evidence of P. Ws. 1 and 2 as entirely true. The trial court has refused to believe the evidence of P.Ws.1 and 2 as regards their explanation for not obtaining the signatures of defendants 3 to 5 at the time of the execution of Ex. A-2 even though they were present according to them.
16. All the circumstances referred to by us have been placed before the trial court and the arguments advanced by learned Counsel for the defendants have been noted in the judgment in paragraph 10. But, after setting out those arguments, the learned Judge has not chosen to consider them and arrive at a conclusion with regard to the same. He has simply ignored them and proceeded to consider the other points.
17. In the circumstances, we hold that the plaintiff has not established the genuineness of Ex. A-2 or that the first defendant intended to execute an agreement for sale of his property. Nor the plaintiff has proved the payment of Rs. 25,000 as claimed by him by way of advance. Because the first defendant has admitted receipt of Rs.l5,000 we hold that the plaintiff had paid only a sum of Rs. 15,000 and that too by way of loan to the first defendant when he was in need of the same.
18. In view of our above findings, the other questions do not arise. But, for the sake of completion, we think it better to refer to those matters also and give our findings. As regards the character of the property, learned Counsel for the plaintiff relics strongly on the recital found in Ex. A-2 that the property is self-acquired. As we have held that Ex. A-2 is not a genuine document, that recital will be of no use to the plaintiff. Reliance is placed upon a recital in Ex. A-24, a mortgage deed dated 30.5.1966 executed by the first defendant in favour of Salem Urban Co-operative Bank Limited. That document has been executed not only by the first defendant but also his son Jayapal, who is the third defendant in this suit. It is stated therein that the property was purchased by the first defendant under a sale deed dated 19.1.1985 and belongs to him. No doubt the recital is helpful to the plaintiff in his contention that the property is a self-acquired property. But, that is the only circumstance which is in support of the plaintiff in this case. All the other evidences indicate against the plaintiff in so far as the character of the property is concerned. Ex. B-1 is a partition deed dated 19.12.1949 under which the first defendant got several properties which belonged to his joint family consisting of himself and his brothers. It is seen therefrom that the joint family had been running a business of money lending. Some of the outstandings due under that business have been allotted to the first defendant. It is also in evidence that the first defendant was continuing the business of money lending. P.W. 3 who claims to be a neighbour of the first defendant has admitted that the first defendant’s father was doing money lending business on a large scale and the first defendant is continuing the same. There is no evidence on record that the first defendant had any other source of income. Thus, the evidence on record conclusively shows that the first defendant had ancestral properties comprising of houses and was running a business which was also ancestral. He had no other source of income with which he could have purchased properties of his own. When there is no evidence as to his independent source of income and when he admittedly was the manager of the undivided family consisting of himself and his sons, the presumption under the Hindu Law has to be drawn and the property should be presumed to be joint family property. The rulings in Mallappa Girimallappa Belgeri v. Yellappagouda Patil A.I.R. 1959 S.C. 906 and Mallappa Bandeppa Desai v. Desai Mallappa , will apply on all fours to this case. It has been held that where the manager of a joint Hindu family acquired certain properties in his own name and there was sufficient nucleus of joint family properly out of which those properties might have been acquired and spent from those properties and the manager had no other source of income, the presumption arises that the newly acquired properties were the properties of the joint family and unless that presumption was rebutted, it must prevail. In the present case, the first defendant had no other source of income and what all he had was the joint family property. In the circumstances, the recital in Ex. A-24 will not be sufficient to rebut the presumption under the Hindu Law that the property is a joint family property.
19. The only other contention that remains to be considered is whether the agreement for sale, if true, is supported by necessity. The evidence let in by the plaintiff is to the effect that the first defendant was in need of money for the purpose of performing the marriages of his two sons. It is stated in the plaint that the first defendant had been arranging to celebrate the marriages of his two sons and also intending to purchase proper-tics in the names of his children. He had also to discharge the joint family debts for which he required money. Even the document Ex. A-2 does not recite any purpose for the sale. No doubt some evidence has been produced before court by the plaintiff to show that the first defendant was indebted to others and there were also decrees obtained by strangers as against the first defendant. But, that would not by itself prove that the sale of the suit property was necessitated. The case of the plaintiff that the first defendant required money for celebrating the marriages of his sons is falsified by the fact that the marriages of one son had already taken place and the marriage of his another son took place only a year later. Taking into account the fact that the first defendant was suffering from cataract and was in need of money for his operation, the case of the plaintiff that he required money for other purposes cannot be accepted. The case of the first defendant as set out in the written statement is that he wanted only a sum of Rs. 40,000. For getting that such amount, he need not have sold the house worth Rs. 1,18,000 even according to Ex. A-2. It is not established in evidence that all the other properties of the first defendant had already been sold. Hence, it cannot be said that the agreement of sale in favour of the plaintiff was supported by legal necessity. In Bolmukand v. Kamala Wati (1965) 1 M.L.J. (S.C.) 6 : (1965) 1 An.W.R. (S.C.) 6 : : (1964) 1 S.C.W.R 494 : (1965) 1 S.C.J. 212, the Supreme Court held that where adult members are in existence, the decision to sell the properly is to be not that of the Manager of the family alone but that of all the adult members of the family, including the manager. There was no evidence in that case that the other adult members of the family had agreed to the transaction or that they consented for it or even about it. In fact it was found that the adult members of the family resisted the claim for specific performance. The court observed as follows:
(1) Thus, as we have already stated, that for a transaction to be regarded as of benefit to the family it need not be of defensive character so as to be binding on the family. In each case the court must be satisfied from the material before it that it was in fact such as conferred or was reasonably expected to confer benefit on the family at the time it was entered into. We have pointed out that there is not even an allegation in the plaint that the transaction was such as was regarded as beneficial to the family when it was entered into by him with Pindidas. Apart from that we have the fact that here the adult members of the family have stoutly resisted the plaintiffs claim for specific performance and we have no doubt that they would not have done as if they were satisfied that the transaction was of benefit to the family. It may be possible that the land which was intended to be sold had risen in value by the time the present suit was instituted and that is why the other members of the family are contesting the plaintiffs claim. Apart from that the adult members of the family are well within their rights in saying that no part of the family property could be parted with or agreed to be parted with by the Manager on the ground of alleged benefit to the family without consulting them. Here, as already stated, there is no allegation of any such consultation.
10. In these circumstances, we must hold that the courts below were right in dismissing the suit for specific performance, we may add that granting specific performance is always in the discretion of the court and in our view in a case of this kind the court would be exercising its discretion right by refusing specific performance.
20. In this case, no doubt the evidence of P.Ws. 1 and 2 is to the effect that defendants 3 to5 viz. sons of the first defendant, were present at the time of Ex. A-2 and they did not object to the transaction. Even if Ex. A-2 can be accepted to be true, this version that defendants 3 to 5 were present at that time cannot be accepted. As pointed out already, the trial court itself has refused to accept that version. If defendants 3 to 5 were present at that time, their signatures would certainly have been obtained by the plaintiff and he would have taken some steps to get a record of their consent to the transaction. There is no evidence excepting the ipso dixit of P.W. 1 and P.W. 2 that the sons of the first defendant, were consulted or that they consented to the transaction. In these circumstances, the equitable relief of specific performance cannot be granted in favour of the plaintiff even in Ex. A-2 is found to be true. We would have refused to exercise our discretion in favour of the plaintiff on the facts and circumstances of this case.
21. In the result, the appeal fails and it is dismissed. The memorandum of cross-objections is allowed. The suit is dismissed. The plaintiff will pay the costs of the defendants in the trial court as well as this Court.
