9911796707
Advanced Search 
TMI Blog2015 (9) TMI 1608X X X X Extracts X X X X X X X X Extracts X X X X ..... ife's son was Abdul Sakoorsab, who died in the year 1967. The first Plaintiff and his younger brother R.A. Rasheed are the children of Jambusab from his second wife Azizabi. Through the 3rd wife Mahajambi, Jamusab had begotten 4 children namely, A. Abdul Subhan, R. Abdul Majeed, Maqubal Jan and Aktharunnisa. The children of late Jambusab could not agree to divide the properties of late Jambusab. They litigated and ultimately in R.A. 133/49-50 on the file of the High Court, a final decree was passed and the properties described in the Schedule to the plaint fell to the joint share of the first Plaintiff and his younger brother R.A. Rasheed. The date of the decree is 22.08.1950. The first Plaintiff and his younger brother thus became the exclusive joint owners of the suit schedule property and from the date of the High Court decree namely 22.08.1950. The first item of the suit schedule which was designed as a Cinema building was leased jointly by the first Plaintiff and his younger brother R.A. Rasheed to late N.K. Subbaiah Shetty and one Rattanhalli Ramappa jointly by means of a registered lease deed dated 26.02.1951 specifying therein a period of 15 years for the running of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ah Shetty, being usurious interest was also not recoverable in law. The so called lease dated 05.08.1953 operated in Law only as a surrender of lease, as the fight of lessor as well as lessee became merged in the Plaintiff who was a joint owner of item No. 1 of the suit schedule Under Section 111(d) of the T.P. Act. He could not be deemed to be a lessee of his own building and the sub-lease was void to the extent that it provided Rs. 250/- to be paid as rent to N.K. Subbaiah Shetty, the possession which accrued to the Plaintiff on the execution of the deed dated 05.08.1953 was, therefore, free from all liability to pay any amount to N.K. Subbaiah Shetty. R.A. Rasheed, the brother of the 1st Plaintiff executed a pronote dated 24.01.1953 benami in the name of C. Shambulingaiah the real beneficiary being the 1st Defendant. The Defendant filed a suit in O.S. 1/54 as Power of Attorney Holder of C. Shambhulingaiah against R.A. Rasheed in the then Court of Sub-Judge, Mandya and obtained ex parte decree and in Execution No. 38/54 got the undivided half share of R.A. Rasheed in the Suit Schedule 1st item attached. Thereafter, in Ex. No. 5/56 the 1st Defendant as Power of Attorney holder sue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... legal gains. It is learnt that the 1st Defendant, however, got a general power of attorney from N.K. Subbaiah Shetty and continued further execution proceedings suppressing the facts that only half the share of the first Plaintiff at least worth Rs. 1,50,000/- in items 1 to 3 could be brought to sale. The 1st Defendant put up the entire schedule item for sale and bid at the court auction on 14.02.1962 for a paltry sum of Rs. 325/-. Thus stabbing at the back of the 1st Plaintiff and got the same confirmed on 06.04.1962. The sale and subsequent confirmation is vitiated and void as only half share was attached, but against the attachment itself the full properties including the properties which were not subject matter of the attachment were brought to sale and purchased. 6. Since the first Defendant openly boasted that he had in reality become the owner of the entire properties of the first Plaintiff, the first Plaintiff made inquiries and came to know about the treacherous and illegal acts of the 1st Defendant who through abuse of processes of court had maneuvered to get the sale held and confirmed including the half share of this first Plaintiff, and the first Plaintiff, therefore, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... omise petition in Misc. 49 of 1962. (b) Rs. 4500/- paid before witnesses on 02.09.1967 when the agreement was executed. (c) Rs. 8000/- paid to first Defendant as per agreement dated 29.11.1965. (d) Rs. 5500/- paid as per receipt dated 9.2.1966 wherein the amount of Rs. 8000/- as per (a) above have also been acknowledged. 8. The first Plaintiff allegedly running a cinema theatre item No. 1 of the suit schedule all along, as he was in possession of the same ever since 01.08.1953. However, in the morning of 05.09.1967, the first Plaintiff was surprised to find himself under arrest along with his sons and another Pasha, a relative, by the police authorities. It was learnt that the first Defendant had lodged a complaint to the police that he had been dispossessed of item No. 1 of suit schedule Cinema Building even though he had no possession. There were account books and other important papers and several materials forming part of the cinema building belonging to the first Plaintiff and kept within the premises of item No. 1 of the suit schedule. The first Defendant with whom K.N. Subramanya Shetty and N.K. Subbaiah Shetty were in collusion with the help of police ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were produced along with the original documents in the custody of the Plaintiff with document list in triplicate for perusal of this Court. N.K. Subbaiah Shetty has been included so as to give a binding decree against him also. 9. The trial court formulated the following issues for determination: 1) Whether the 1st Defendant was the Power of Attorney Holder of the 2nd Defendant? 2) Whether the 1st Defendant for himself and as Power of Attorney Holder of 2nd Defendant executed an agreement of sale dated 2.9.1967 agreeing to convey the plaint schedule properties in favour of the Plaintiff? 3) Whether under the said agreement the Plaintiff paid the amount to the 1st Defendant as mentioned in para 11(a)(b) (c)(d) of the plaint? 4) Whether the Plaintiffs are entitled to the specific performance of the agreement of the sale and for possession of the schedule properties? 5) Whether the Plaintiffs are entitled to Rs. 93,600/- towards the mesne past profits? 6)(a) Whether the proceedings in Ex. No. 217/61 and Misc. No. 34/69 and orders thereon are fraudulent and without jurisdiction and as such they are void, illegal and wrongful as stated in para 1/4 of the plaint? (b) Whethe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... P.1 is written in a broad day light. If the handwriting contained in Ex. P.1 in small letters reduced to writing atleast the same will cover 2 full sheets of papers meaning thereby it may go to cover 4 pages of hill size papers. No reasons are assigned as to why Ex. P.1 is written in such a congested manner. Non availability of the paper to write Ex. P.1 cannot at all be expected nor anticipated in a city of Mysore, that too near the first Defendants shop which is in the business centre of Mysore City. It is admitted by all the witnesses that there are several shops of stamps vendors and advocates offices. If that be the case, that would not have been any difficulty to secure the required paper to write Ex. P.1. Further, if we carefully go through the contents of Ex. P.1, it goes to show that all the suit properties are agreed to have been sold for Rs. 25,000/- and the amount of Rs. 20,500/- has been paid to the Defendant earlier to 02-09-67. Further, it is also clear that the amount of Rs. 4,500/- was also paid to the Defendant 1. That means only the stamp papers to get the registered sale deed were required to be obtained. No reasons are assigned the any of the Plaintiffs witnes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt and held as under: 17. The conclusion drawn by the Criminal Court with regard to the document - Ex. P.1 in regard to its execution etc. are certainly relevant and it can be relied upon as a piece of evidence by the Plaintiffs in support of their case. The observations made by the Criminal Court regarding execution of agreement - Ex. P.1 in its judgment - Ex. P.4 are certainly admissible Under Section 13 of the Indian Evidence Act in support of the claim of the Plaintiffs regarding execution of the document - Ex. P.1 by Defendant No. 1. Therefore, the Trial Court was not at all justified in ignoring such evidence on the ground that the judgment of the Criminal Court is not binding on the Civil Court. May be, that the judgment of the Criminal Court is not binding on the Civil Court. But, the observations made by a competent Court with reference to certain document would certainly be relevant even in a civil case, where the very same document was a subject matter of challenge. 18. In the instant case, it is not in dispute that the very same document - Ex. P.1 was produced before the Criminal Court wherein, Plaintiff No. 1 was prosecuted on the charge of trespass and the Crimina ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vidence means, the document itself produced for the inspection of the Court. In the instant case, it is not in dispute that the original agreement itself was produced for the inspection of the Court as per Ex. P.1. The document in question being an agreement of sale or a reconveyance agreement, it does not require attestation. Section 67 of the Evidence Act refers to document other the document required by Law to be attested. It shows that the signature of the person alleged to have signed a document i.e. execution must be proved by the evidence with the signature purporting to be that of the executants is in his handwriting and the other matter in the document i.e. its body must also be proved by proof of handwriting of a person purporting to have written the document. In the instant case, the agreement - Ex. P.1 was stated to have been written by its scribe - PW. 1 at the instructions of Defendant No. 1 and after the document was written, it was signed by Defendant No. 1. Therefore, what was required to be proved in the instant case by the Plaintiffs to prove the execution of document - Ex. P.1 was that it contains the signature of Defendant No. 1. 14. On the issue of execution ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1955 SC 566; Adi Pherozshah v. H.M. Seervai: AIR 1971 SC 385; Shanti Kumar Panda v. Shakuntala Devi: (2004) 1 SCC 438; and State of Bihar v. Radha Krishna Singh and Ors. (1983) 3 SCC 118. 17. Mr. Basava Prabhu S. Patil, learned senior Counsel appearing for the Respondents, on the other hand, submitted that the only issue that was to be decided by the High Court was as to whether there was a binding agreement executed by the Defendants-Appellants. Learned senior Counsel submitted that the High Court after considering the evidence of the scribe and other witnesses and also considering the evidence produced in a criminal proceeding and the finding recorded in the said proceeding has come to the right conclusion that the agreement was executed by the Defendants. The High Court further came to the finding that payment of consideration amount to the Defendants has been proved and that the signature on the agreement was admitted by Nanjappa, who was a signatory of the agreement. According to the learned senior Counsel, the finding recorded by the High Court is based on appreciation of evidence and, therefore, such finding of fact needs no interference by this Court. 18. Before we expres ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ary, but sound and reasonable, guided by judicial principles of law and capable of correction by a court of appeal. Therefore, the discretion should be properly exercised keeping in view the settled principles of law as envisaged in Section 20 of the Act. This case demonstrates that the High Court took irrelevant consideration into account to refuse to grant the decree for specific performance. It also committed manifest illegality in reversing the concurrent finding of facts recorded by the trial court as well as the first Appellant court, namely the Appellant has always been ready and willing to perform his part of the contract. 23. It is equally well settled that relief of specific performance is discretionary but not arbitrary, hence, discretion must be exercised in accordance with sound and reasonably judicial principles. The cases providing for a guide to courts to exercise discretion one way or other are only illustrative, they are not intended to be exhaustive, In England, the relief of specific performance pertains to the domain of equity, but in India the exercise of discretion is governed by the statutory provisions. 24. In the case of Mayawanti v. Kaushalya Devi (1990 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in Attorney General v. Wheate followed Rooke's case and observed: (ER p. 666) the law is clear, and courts of equity ought to follow it in their judgments concerning titles to equitable estates; otherwise great uncertainty and confusion would ensue. And though proceedings in equity are said to be secundum discretionem boni viri, yet, when it is asked, vir bonus est quis? The answer is, qui consulta patrum, qui leges juraque servat. And as it is said in Rooke's case, that discretion is a science not to act arbitrarily according to men's wills and private affections; so the discretion which is to be executed here, is to be governed by the rules of law and equity, which are not to oppose, but each in its turn to be subservient to the other. This discretion, in some cases follows the law implicitly; in others assists it, and advances the remedy; in others, again, it relieves against the abuse, or allays the rigour of it; but in no case does it contradict or overturn the grounds or principles thereof, as has been sometimes ignorantly imputed to this Court. That is a discretionary power, which neither this, nor any other court, not even the highest, acting in a judicial capa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uted by the Defendants, can be enforced, the Court had to consider various discrepancies and series of legal proceedings before the agreement alleged to have been executed. In the agreement dated 2.9.1967, there is reference of earlier agreement dated 29.11.1965 where under Rs. 18,000/- was paid to the Defendant-Appellant which was denied and disputed. Curiously enough that agreement dated 29.11.1965 was neither filed nor exhibited to substantiate the case of the Plaintiff. The High Court put reliance on the agreement dated 2.9.1967 written in a quarter sheet of paper merely because of the fact that said quarter sheet of paper was produced before the Magistrate in a criminal proceeding. In our view, the High Court is not correct in holding that there is no reason to disbelieve the execution of the document although it was executed on a quarter sheet of paper and not on a proper stamp and also written in a small letter. The High Court also misdirected itself in law in holding that there was no need of the Plaintiff to have sought for the opinion of an expert regarding the execution of the document. 29. Indisputably, various documents including order-sheets in the earlier proceeding ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
