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2003 Supreme(AP) 125
Andhra Pradesh High Court
Judges : J.CHELAMESWAR, M.NARAYANA REDDY
B.Jogi Reddy - Appellant
Versus
Baldev Singh (died) - Respondent
Decided On : 01-23-03
Headnote:
Specific Performance – LPA – Aggrieved by the judgment and decree of the learned single Judge in C. C. CA. the present appeal is filed by the respondents therein – It is the case of the appellant that though he was willing to perform his part of the contract, the first defendant never came forward to convey the property – Therefore, the appellant got issued two notices, marked as Exhibits a-3 and A-4 respectively, followed by telegram, marked as Ex. A- 2, demanding the specific performance of the agreement – The first respondent filed written statement wherein he admitted that he approached the appellant herein for a loan and in fact borrowed the amount of rs. 20,000/- from the appellant – In the said context he was made to sign on number of blank papers which, according to the first respondent, were utilised for fabricating the suit agreement – The 3rd defendant also filed a separate written statement wherein he also put forward the theory that the appellant herein having obtained the signatures of the first respondent on blank papers – The other defendants adopted the same written statement – Held, the learned Single Judge, in this Court’s view, recorded an erroneous finding that the defendant denied the signatures of the deceased first respondent on Ex. A-1 – The defendant never denied the signatures of the deceased first respondent on Ex. A-1 – On the other hand, as already noticed, the case of the defendant is that he admitted the signatures of the deceased first respondent but put forward the theory that some signatures of the 1st respondent were obtained on blank papers when he borrowed the money from the appellant – It is settled provision of law that when once the signatures are admitted the burden to establish that the document is a fabricated one is heavily on the defendants – The learned Single Judge, however, opined "the burden is on the plaintiff to show that it has been executed by the deceased, first defendant. " – In our opinion, such a view is wrong – Agreement of sale is not a document which is required to be attested compulsorily – At any rate, in our view, the learned Single Judge ought not to have taken a different view on appreciation of the evidence in the present case only on the ground that there is no independent witness examined to establish the execution of Ex. A-1 – Even otherwise the conduct of defendants/respondents does not justify the reversal of the Trial Court decree – On the face of three notices, Exs. A-2 to A-4 demanding the specific performance of Ex. A-1 and if really Ex. A-1 is a fabricated document, the respondents should have come out at the earliest point of time on receipt of the above-mentioned notices denying the genuineness of the document – The respondents chose to remain silent – In the background of our above discussion, this Court disagree with the findings of the learned Single Judge – In view of the reasons mentioned above, this Court allow the appeal – Accordingly, the judgment of the learned Single Judge is set aside – Appeal Allowed
( 1 ) AGGRIEVED by the judgment and decree of the learned single Judge in C. C. CA. No. 191 of 1997 dated 7. 2. 2002 the present appeal is filed by the respondents therein, who were plaintiffs in O. S. No. 1287 of 1989 on the file of the IV Additional Judge, City Civil court, Hyderabad, which was decreed on 31. 7. 1997.
( 2 ) THE appellant herein filed the above-mentioned suit against the deceased first respondent herein initially for the specific performance of an agreement of sale dated 31. 3. 1986 under Ex. A-1 executed by the deceased first respondent in favour of the plaintiff-appellant herein. The Trial court by its judgment and decree dated 31. 7. 1997 decreed the suit. On appeal in c. C. CA. No. 191 of 1997, the learned Single judge of this Court was pleased to allow the same. Hence, the present LPA.
( 3 ) THE sole defendant/first respondent herein died during the pendency of the suit. After filing written statement, respondents 2 to 4 were brought on record as legal representatives of the deceased first respondent herein by an order of the Trial court dated 11. 3. 1997 in LA. No. 1769 of 1996. The learned Single Judge recorded at para 6 of the judgment that during the pendency of appeal, fourth defendant died and his legal representative is impleaded as fifth respondent.
( 4 ) IN substance, the case of the appellant herein is that the first respondent herein approached the appellant herein in the year 1983 and borrowed an amount of rs. 40,000/- on 15. 7. 1983 with a promise to repay the said amount within three months. As the deceased first respondent was unable to repay the said amount, he agreed to sell the suit schedule property for a consideration of Rs. 1,50,000/- and further agreed that the amount due from the first respondent is to be adjusted from out of the sale consideration referred to above. Accordingly, Exa-1 was entered into and on the date of the agreement a further amount of Rs. 40,000/- was paid by the appellant herein. It is further alleged in the plaint that the first respondent agreed to receive the balance consideration of Rs. 70,000/- within a period of one year and convey the property. It is the case of the appellant that though he was willing to perform his part of the contract, the first defendant never came forward to convey the property. Therefore, the appellant got issued two notices on 27. 3. 1987 and 2. 3. 1988, marked as Exhibits a-3 and A-4 respectively, followed by telegram dated 26. 3. 1989, marked as Ex. A- 2, demanding the specific performance of the agreement. The first respondent filed written statement wherein he admitted that he approached the appellant herein for a loan and in fact borrowed the amount of rs. 20,000/- from the appellant. In the said context he was made to sign on number of blank papers which, according to the first respondent, were utilised for fabricating the suit agreement. The 3rd defendant also filed a separate written statement wherein he also put forward the theory that the appellant herein having obtained the signatures of the first respondent on blank papers. The other defendants adopted the same written statement.
( 5 ) THE following undisputed fact emerges out of the pleadings that there was a transaction of borrowing by the deceased first respondent from the plaintiff sometime in the year 1983. With reference to the defence that signatures were obtained on blank papers at the time when the deceased first respondent borrowed money from the appellant herein, the Trial Court held as follows:"dw1 admitted in cross that in the year 1982 his father borrowed Rs. 20,000/- from the plaintiff. Ex. A-1 is the stamp paper of 1986. He denied that his father signed on Ex. A-1 after reading over the contests therein after obtaining the sale consideration thereunder. The defendants have not explained how the plaintiff obtained Exa-1 which is a stamp paper of 1986 when the plaintiff alleged to be obtained the signature of D1 on bond forms in 1982 a
