MUHAMMED Vs. VELYUDHAN

JUDGEMENT

(1.) THIS appeal is filed against the judgment and decree in O.S. No. 175 of 1990 on the file of the Sub Court, Tirur. The suit was filed for specific performance of an agreement to sell the plaint schedule property. The agreement is produced as Ext. A6. According to the plaintiff, Ext. A6 was executed by defendants 1 and 2 for the sale of the plaint schedule property for a total consideration of Rs. 85,000/-, out of which, Rs. 70,000/- had been paid on the day on which Ext. A6 was executed. The balance amount was agreed to be paid within one month and the sale deed executed.

(2.) ACCORDING to the plaintiff, the plaintiff is a person, who is employed in Gulf countries. The suit was filed by the power of attorney holder of the plaintiff. The balance amount was paid to the defendants. But they refused to accept the amount and also execute the sale deed. Ext.A1 notice was issued to the defendants to which they replied stating that they did not execute the document. On the other hand, according to them, they had borrowed Rs. 15,000/- from the plaintiff when he last came from abroad. They promised to repay the amount within two years. Since this was not paid within two years, the plaintiff wanted the document of title of the defendants and also he got one signed stamp paper and one signed blank paper as security for the repayment of the amount. The plaintiff had fabricated the documents for sale. The defendant had not executed the document.

(3.) WHEN the matter came before a learned Single Judge of this Court, the learned Single Judge referred the matter of a Division Bench doubting the correctness of the decision of Kalliath, J. in Ahmad v. Gangadharan, 1990(1) KLT 456. In that case, Kailliath, J. held that where there is a denial of the execution of the document the plaintiff has got the obligation to discharge the burden of proof. How and in what manner that burden of proof can be discharged is a question depending upon the facts of each case. The court is bound to take note of the circumstance that it is not normal human conduct to give signed papers with other people, particularly to persons who cannot have any occasion to get such signed papers. It is more unusual to give signed blank stamp papers with other persons. In such a circumstance if the defendant pleads that he has left a signed blank stamp paper with the plaintiff he has got a duty to explain satisfactorily before the Court what prompted him to do such an act, which is not a normal human conduct. Consequently, if any person wants to rely on an exceptional circumstance, if he wants to show what is some particular instance the ordinary rule was brought abrogated surely he must prove it and thus the burden shifts on him. The learned Judge relied on the decision of the Nagpur High Court reported in Dalchand Mulchand and others v. Hasanbi, W/o Ali Razakhan and others, AIR 1938 Nagapur 152.