1. The defendant who suffered a decree in OS No.479/95 at the hands of the Sub Court Thrissur, is the appellant. The parties and facts are herein after referred to as they are available before the trial court.
2. The defendant is an I.P.S. Officer. It is alleged in the plaint that he was not on good terms with the members of his family. His mother passed away on 24.01.1993 at Aswini Hospital, Thrissur. The deadbody was brought to the house of the plaintiff and cremated on 25.01.1993. The allegation is that when the defendant came to perform the religious obsequies on the dead of his mother on 31.01.1993, the plaintiff was forcibly taken to a house and made to sign some blank papers. He was also tortured, according to the allegations in the plaint. Later, the plaintiff came to know that though signed blank papers have been used by the defendant to manipulate records to show that the vehicle owned by the plaintiff has been transferred to the defendant. The specific allegation in the plaint is that there was no intent on to transfer the vehicle at all and it was forcibly taken away by the defendant, using concocted documents. The plaintiff would also say that he had preferred a complaint before the police, but due to the influence exerted by the defendant, that did not yield necessary results. He has also narrated the various steps taken by him for redressal of his grievance before various authorities. He finally prays for a money decree for Rs.45,000/- towards the value of the vehicle.
3. The defendant entered appearance and resisted the suit. He denial the allegations in the plaint. It was pointed out by him that the present suit is instituted as a counter blast to OS No.221/93 which was filed by him against his parents for cancellation of a document. The defendant would claim that after receiving a sum of Rs.45,000/-, the plaintiff had transferred the vehicle to him and that would be evident from Ext.B5. The allegations to the contrary contained in the plaint are false and contrary to facts. In pursuance of the sale of vehicle in favour of the defendant, he has got the vehicle registered in his name. Denying the allegations in the plaint, he prayed for a dismissal of the suit.
4. On the above pleadings issues were raised. The evidence consists of the testimony of PWs.1 and 2 and documents marked as Exts.A1 to A14 from the side of the plaintiff. The defendant had DWs1 to 3 examined and Exs.B1 to B7 marked.
5. The trial court, on an appreciation of the evidence, found Ext.B5 to be suspicious in nature and also holding that the alleged transfer claimed by the defendant did not satisfy the requirements of the Transfer of Property Act, decreed the suit. That brings the defendant before this court.
6. The question to be considered in this appeal is whether the finding of the court below as to the genuineness of EXt.B5 and also the application of the provisions of the Transfer of Property Act are justified.
7. It is not in dispute that the vehicle involved originally belonged to the father of the parties. The parties to the suit are siblings. It is also not in dispute that the vehicle was given by the father to the plaintiff and at the relevant time, the vehicle was owned by the plaintiff.
8. According to the defendant, the vehicle, was sold by him by the plaintiff. The plaintiff would say on the other hand, that he was forced to sign on certain blank papers and those papers have been concocted to manipulate the sale of a vehicle.
9. The learned counsel appearing for the appellant pointed out that the court below has not appreciated the evidence in the perspective and has erred in law in holding that the transaction is covered by the provisions of the Transfer of Property Act. According to the learned counsel, by no stretch of imagination, the provisions of the TP Act can have any application to the facts of the case and the statute that is applicable to the transaction involved in the case is the Sale of Goods Act. The learned counsel referred to the term “sale” in the Sale of Goods Act and pointed out that the necessary ingredients to satisfy the provisions of the Sale of Goods Act are present in this case. The learned counsel also pointed out that there is no justification for the trial court to disbelieve DWs. 2 and 3 to hold that there evidence cannot be accepted. The learned counsel took this court through the plaint and pointed out that the prayer in the plaint is for a decree for a sum of Rs.45,000/-. As to how the value has been arrived at, is not discernible from the plaint. Obviously, it must be based on Ext.B5, so says the counsel. If as a matter of fact, according to the learned counsel, the vehicle was forcibly taken away, normally, the recovery of the vehicle would have been sought for and the plaintiff would have taken objection to the changes effected in the registration office regarding the vehicle. It is significant to notice, according to the learned counsel that pursuant to the sale effected by virtue of Ext.B5, the registration was also changed in the name of the defendant. There is nothing to show that the plaintiff had ever objected to the change in the registration of the vehicle. There was no attempt from the part of the plaintiff to have the vehicle recovered, but he satisfied with seeking a money decree for Rs.45,000/-. The learned counsel also pointed out that none of the grounds relied on by the lower court to disregard Ext.B5 is justifiable in law. Thus, it is contended that the judgment and decree of the court below are clearly unsustainable in law.
10. Per contra, the learned counsel for the respondent pointed out that the defendant’s relationship with the members of the family was extremely bitter and unpleasant. He had filed suits against his parents, his wife and also the plaintiff. It is pointed out that after forcibly taking the vehicle, the plaintiff instituted a Suit for injunction against the plaintiff herein. According to the respondent, it was a tactic adopted by him in respect of the vehicle owned by his wife also. A bare perusal of Ext.B5 is sufficient to show that his signature was obtained on certain blank sheets and the contents were filed up later. According to the learned counsel, the trial court has given cogent and convincing reasons to disbelieve DWs 2 and 3, who are witnesses to Ext.B5. The learned counsel would therefore, contend that the court has correctly appreciated the evidence on record and has come to the right conclusion.
11. After having heard the learned counsel on both sides and after having perused the documents and considering the facts and circumstances of the case, this court finds it difficult to agree with the counsel for the respondents. The definite case put forward by the plaintiff is that Ext.B5 was the result of threat, coercion, fraud and undue influence. If that be so, burden is on him to show that Ext.B5 is vitiated due to any one of the above factors.
12. On going through the trial court judgment, it is seen that the trial court has cast the entire burden on the defendant to show that Ext.B5 is a genuine document. It is true that Ext.B5 is seen executed on 25.01.1993, the date on which the cremation of the mother of the parties took place. It may look odd. But, that by itself is not a reason to suspect the document. The defendant has examined DWs2 and 3 who-had some sort of relation with him, but his case is that the document was drawn up as dictated by their father and it was in fact executed by the plaintiff. It is true that the plaintiff did complain to the police about the conduct of the defendant as would be evident from Ext.A5. The plaintiff seems to have lodged a complaint with the police which was registered as Crime No.14/93. However, it is seen from the record that the police, after investigation, referred the case as a mistake of fact. This, by itself, may not be sufficient to hold in favour of the defendant.
13. The evidence given by the plaintiff is to the effect that on 31.01.1993, while they were on their way to perform the religious obsequies of their mother. He was taken to a house and made to sign on certain blank papers. A complaint was filed before the police on 05.02.1993 i.e. 5 days after the incident. The evidence of PW2 is to the effect that on 31.01.1993, his son returned home alone in the evening by about 5 pm. He narrated the torture he underwent at the hands of the defendant only at 8 pm. Going by the evidence of PW1, he was badly manhandled. If there was any harassment as alleged, the father would have noticed the sad plight of PW1 and PW1 would have narrated the incident to PW2. One must remember here that the relationship between the parties was far from pleasant. It is true that there is some evidence to show that there was some connection between DWs2 and 3 and the defendant. But the witnesses to Ext.B5 had deposed the circumstances under which the document Ext.B5 cane to the drawn up. The lower court has observed that there is no evidence to show that the payments made mention of in Ext.B5 by the defendant to the plaintiff have been proved. The lower court has come to the conclusion that it is clear that no amount whatsoever was paid as on the date of Ext.B5. It holds against the defendant for not having produced evidence to show that amounts were paid on the dates made mention of in Ext.B5.
15. When a person asserts that his signature was obtained on blank papers, burden is on him to establish the circumstance under which he happened to so affix his signature. It is not sufficient for him to say that the signatures were obtained on blank paper. It is here that the plaint assumes importance. If, as a matter of fact, the vehicle was forcibly taken away from the plaintiff, one would have expected the plaintiff to take steps to have the vehicle recovered and also the take necessary steps to have the Registration Department informed about the fraud played by the defendant. Instead, the plaintiff is satisfied by seeking a decree for Rs.45,000/- which is the value shown in Ext.B5. There is no evidence available from the plaint to come to the conclusion that the amount claimed by the plaintiff is justified by any other method.
15. It is quite surprising and shocking to note that the lower court had noticed that Ext.B5 cannot be accepted because it is not registered and sufficiently stamped as required under the Registration Act and Transfer of Property Act. It appears that the lower court, has omitted to note that the transaction involved in this case is the sale of vehicle which is a movable article and it is governed by the provisions of the sale of Goods Act. Section 4 of the Sale of Goods Act reads as follows:
4. Sale and agreement to sell: (1) A contract of sale of goods is a contract whereby the seller transfers or agrees to transfer the property in goods to the buyer for a price. There may be a contract of sale between one part – owner and another.
(2) A contract of sale may be absolute or Conditional.
(3) Where under a contract of sale the property in the goods is transferred from the seller to the buyer, the contract is called a sale, but where the transfer of the property in the goods is to take place at a future or subject to some condition thereafter to be fulfilled, the contract is called an agreement to sell,
(4) An agreement to sell becomes a sale when the time elapses or the conditions are fulfilled subject to which the property in the goods is to be transferred.
Once the price is received and the property is delivered, the sale is complete. Going by the definition of sale, when the property is delivered for a price, the bale is complete. The trial court seems to be under the impression that unless the registration is effected, there is no complete sale. The sale does not depend upon registration at all. Registration before the R.T.O. is a consequence of sale. Therefore, the trial court was not justified in discarding Ext.B5 for the reason mentioned by it.
16. Except for the interested testimony of PW1, who is none other than the plaintiff, there is nothing to show that he was forced to sign on a blank paper which is later alleged to have been manipulated by the defendant. This court is given to understand that the suit filed by the defendant for injunction against the plaintiff has also been decreed. It is also significant to notice that the documents produced by the defendant show that the suit filed by him against his parents regarding execution of document was also decreed in his favour.
17. Once it is shown that Ext.B5 contains the signature of the plaintiff, it is for him to establish that it was vitiated under the circumstances made mention of by him. There is no evidence in that regard at all. The mere fact that the way in which the sentences appear in Ext.B5 may look suspicious, that by itself may not be a ground to doubt the genuineness of Ext.B5. The conduct of the plaintiff a so assumes relevance in this context. He did not seek or recovery of the vehicle, but he was satisfied with a money decree for Rs.45,000/-. The basis for the amount shown in the plaint is not discernible from the plaint and if that be so, as rightly pointed out by the learned counsel for the appellant, the whole claim of the plaintiff that Ext.B5 was vitiated, falls to ground. It has to be said that the said contention has considerable force.
For the above reasons, this court is unable to uphold the judgment and decree of the court below. Accordingly, the judgment and decree of the court; below are set aside and the suit stands dismissed. No order as costs.