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TMI Blog2001 (1) TMI 1021X X X X Extracts X X X X X X X X Extracts X X X X ..... fendants. 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 defendants had not executed the document. 3. The lower court raised relevant issues in this case and held that there is no satisfactory evidence to prove the execution of the agreement and the passing of the consideration. On the basis of the above, the Court held that the defendants was not entitled to specific performance and granted a decree for Rs. 15,000/- in favour of the plaintiffs from the defendants. It is against the above judgment and decree refusing to grant specific performance that the present appeal has been filed by the plaintiff. The defe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alchand Mulechand Ors. v. Hasanbi, W/o. Ali Razakhan Ors. AIR 1938 Nag. 152. In Santha v. Rajappan Pillai 1986 KLT 1235, Kalliath, J. followed the decision in Seithammarakkath Mammad v. Koyammatath Mammad 1957 KLT 328. 6. Hence in this case, the controversy has to be resolved. Sri. T.R. Govinda Warriyar, Senior Counsel appearing for the appellant and Sri. P.G. Rajagopalan appearing for the respondents brought to our notice various decisions of the various Courts including this Court. When the matter being argued, we were informed by Sri. N. Subramonian, who is appearing in A.F.A. No. 42 of 1993 that a similar question was involved in that appeal also. Hence, we allowed the counsel for the appellant and respondents in A.F.A. No. 42 of 1993 to address arguments on this question. We are happy to state that there was a full argument and according to us, most of the decisions on this question had been placed before us by the counsel appearing on both sides. 7. As we already stated, the Patna High Court was taking the view consistently that mere admission that a person has signed a document does not lead to a presumption that the execution of the document is admitted. This has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mplies more than the act of affixing a signature. It implies more than the clerical act of writing the name. The intention of the person signing is important. The person should have affixed the signature to the instrument in token of an intention to be bound by its conditions. It has been said that for a signing consists of both the act of writing a person's name and the intention in doing this to execute, authenticate or to sign as a witness. The execution of a deed or other instrument includes the performance of all acts which may be necessary to render it complete as a deed or an instrument importing the intended obligation of every act required to give the instrument validity, or to carry it into effect or to give it the forms required to render it valid. Thus, the signature is an acknowledgement that the person signing has agreed to the terms of the document. This can be achieved only if a person signs after the document is prepared and the terms are known to the person signing. In that view of the matter, mere putting of signature cannot be said to be execution of the document. 10. In Ramlakhan Singh v. Gog Singh AIR 1931 Patna 219, a Division Bench of the Patna High C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that a mere signature does no! necessarily and automatically render effective and operative the document to which it is appended. The signature of a document under a complete misapprehension as to the nature of the transaction therein set out, that is to say, under a mistake, does not render the document effective or operative. So, also where there is an antecedent oral agreement between the parties to a written agreement that some or any obligation thereunder shall not arise until the fulfilment of some condition precedent, the document although signed, will not become operative until the fulfillment of the condition precedent. Therefore, the term 'execution' in relation to a written document means the placing by the executant of his signature or other identification mark such as a thumb-print thereon in or accompanied then or later by circumstances which sufficiently demonstrate the intention of the executant to give effect and operation of the instrument signed by him. The case Ram Pragas Singh v. Gajendra Prasad Singh Anr. AIR 1976 Patna 92 is a judgment by a learned Single Judge. There, the suit was on a handnote. The admission made by the defendant was that the def ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gage deed that their houses were assigned to Hasan Bi in lieu of her Mehr by registered deed of transfer dated 2nd October 1912 and 31st August 1920 are not true. That since before the year 1910 there was ill feeling between Khan Bahadur Ali Raza Khan and his sons Walayat Ali Khan and Umardaras Khan due to certain family affairs. Khan Bahadur Ali Raza Khan with a view to deprive these people from inheritance of his property executed the above two bogus assigned deeds in favour of Mr. Hassan Bi which were never intended to be acted upon by anybody . According to the court below, the above pleading is an admission on the part of the defendants, which throws the burden of proving the sham nature of the transaction upon the defendants who assert it. Their Lordships considered the various decisions with regard to the admission of the documents. Their Lordships relied on the decision in Devidas v. Mamooji, 20 NLR 7, wherein it was held that admission by the defendant that a document bears his signature coupled with the assertion that it had been placed upon a blank piece of paper upon which the rest of the document was fraudulently scribed was not an admission of execution and so the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... good services of the plaintiff to intervene on his behalf with one Mohammad Kunhi for the grant of a lease of immovable property while he was urgently entraining for Madras, entrusted with the plaintiff a blank half sheet of paper with his thumb impression for being filled up as a Kychit for the purpose, as the plaintiff had desired. Mohammad Kunhi refused to accept any such make shift arrangement. So, the blank paper remained with the plaintiff, the defendant not having claimed it back. Subsequently, the plaintiff fell out with the defendant's elder brother to consummate his marriage with the plaintiff's niece. The plaintiff in his enmity had taken advantage of the existence of the blank sheet with him to fill it up as the promissory note. The decisions in AIR 1931 Patna 219 and AIR 1938 Nagpur 152 were cited before the learned Judge. The learned Judge accepted the reasoning of the Patna Case. With regard to the Nagpur case, the learned Judge held as follows: But the learned Judges themselves say that the presumption will arise only if nothing else is known and further that: The initial burden of proving execution of a document when it is denied is upon the person a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tention with regard to the acknowledgement of the term should be there. When the person signs the same, then only it can be said that the person has executed the document. Hence, according to us, when a person says that he put the signature on a blank paper that does not mean that he had admittedly executed the document. According to us, the decision in AIR 1938 Nag. 152 does not deal with a case where the signature was put on a blank paper. That decision related to the case where a document was executed, but it was staled that it was not intended to be acted upon. It was in that circumstances that the court held that when a signature appears on a document that amounts to admission of the execution of the document and the burden is on the person disputing that the document has not come into effect, to prove that it has not come into effect. 16. It was then argued that a person will not entrust a signed blank paper to another person without any intention. It is argued that a person signing a blank paper would have agreed that he agrees for all the terms which the plaintiff puts in the document and that it was in token thereof that he has put his signature and hence, the burden sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... suit was filed on the basis of Ext. A6 agreement for specific performance. As per that agreement, the defendants had agreed to sell the property described thereunder for a consideration of Rs. 85,000/- to the plaintiff. It is stated in that document that on the date of the document, an amount of Rs. 70,000/- was paid as advance and that document will be executed and the plaintiff will be put in possession of the property within one year thereof. According to the plaintiff, he was working in Gulf Countries. After the execution of Ext. P6, he went back and through his power of attorney, PW. 4, he requested the defendants to execute the document after paying the balance amount But they refused to execute the document. Thereafter, Ext. A7 lawyer notice was issued to the defendant. In reply, Ext. A8 notice was issued in which the contention taken is that they did not execute Ext. A6 document. They had borrowed an amount of Rs. 15,000/- from the plaintiff two years back and when the plaintiff came subsequently, he wanted security for the same and towards the security, they gave the document with regard to their property as well as they gave signed stamp paper and also signed blank paper ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The lower court pointed out certain infirmities showing that one witness has said that the document was given at the time of execution of the agreement, while the other witness has said that it was given earlier. Further according to the Court below, PW3 has stated that the entire amount was given at the time of execution of the agreement. We went through the evidence of these witnesses. We are of the view that on the whole, their evidence can be accepted. It is not stated that the document was given at the lime of execution of the agreement. What is stated is that for the preparation of the 'karar' it was given. It does not mean that the document was given at the time of execution of the 'karar'. 19. DW.1 gave evidence. According to him, he borrowed amount of Rs.15,000/- from the plaintiff. It is difficult to believe that at the time when the loan was taken, he was the only person who was present and further he stated that it was for him alone that the loan was taken. Further, he stated that he had borrowed the amount of Rs. 15,000/- for payment to another person, who was going to be examined. But that person was not examined. In the above circumstances, we are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e defendants is that in one of the rooms, they are conducting business in rationed articles and if it is sold, they will be put to great hardship. We are of the view that this contention cannot be accepted. Once it is found that the document had been executed, normally, the rule is that the agreement will be specifically enforced. The mere fact that it will cause hardship to the defendants cannot prevent this Court from passing any decree for specific performance. The defendants have not brought to our notice any circumstance, which necessitate non-granting of specific performance. 22. In the above view of the matter, we set aside the judgment and decree of the lower court. We allow this appeal and decree the suit as follows: The plaintiff is given a decree of specific performance of Ext. A6 agreement and is also directed to deposit the balance amount of Rs. 15,000/- within a period of four months from today. On such deposit, the defendants shall execute the sale deed in favour of the plaintiff with regard to the plaint schedule property. In default of the defendants executing such document, the plaintiff shall request the court to cause the document to be executed in favour ..... X X X X Extracts X X X X X X X X Extracts X X X X
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