Abdul Jabbar (deceased) and others (represented by legal heirs) v. A. Jalaludeen and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE C.S. SUDHA** **FRIDAY, THE 1[ST] DAY OF DECEMBER 2023 / 10TH AGRAHAYANA, 1945 RFA NO. 198 OF 2003** **AGAINST THE JUDGMENT IN OS 633/1996 ON THE FILE OF THE II ADDITIONAL SUB COURT,THIRUVANANTHAPURAM DATED 20.02.2003.** ## **APPELLANT/PLAINTIFF:** |**1**|**ABDUL JABBAR (DIED)**| |---|---| ||**SHAH MANZIL ,VILAYIL PULLOORKONAM,**| ||**KOTTUKAL VILLAGE, VIZHINJAM,**| ||**NEYYATTINKARA TALUK,**| ||**THIRUVANANTHAPURAM DISTRICT.**| |**2**|**PHATHIMA BEEVI,**| |**ADDL. A2**|**W/O LATE ABDUL JABBAR,**| ||**VILAYIL SHAH MANZIL , PALLOORKONAM,**| ||**VIZHINJAM P.O**| |**3**|**REFEEKKA BEEVI**| |**ADDL. A3**|**D/O ABDUL JABBAR, AMK MANZIL,**| ||**HOSPITAL ROAD, VIZHINJAM.**| |**4**|**THAHIRA BEEVI**| |**ADDL. A4**|**D/O ABDUL JABBAR,**| ||**ANZIA MANZIL, PULLOORKONAM,VIZINJAM P.O.**| |**5**|**SABEENA B,**| |**ADDL. A5**|**D/O ABDUL JABBAR,VILAYIL ISMAIYA MANZIL,**| ||**PULLOORKONAM, VIZHINJAM P.O.**| |**6**|**RAMLA BEEVI**| |**ADDL. A6**|**D/O ABDUL JABBAR,**| ||**KOCHUVILA HOUSE,**| ||**AMPALLYKKUNNUM,**| ||**CHATHANNOOR P.O, KOLLAM.**| |**7**|**RUKKEELLA BEEVI**| |**ADDL. A7**|**D/O ABDUL JABBAR,**| ||**NAMBALI HOUSE, PULLOORKONAM,**| ||**VIZHINJAM P.O**| |**8**|**ISMAIL**| |**ADDL. A8**|**S/O ABDUL JABBAR,**| ||**VILAYIL ISMIYA MANZIL,**| ||**PULLOORKONAM, VIZHINJAM P.O**| R.F.A.No.198 of 2003 2 **9 AYOOBKHAN ADDL. S/O ABDUL JABBAR, VILAYIL ISMIYA MANZIL, PULLOORKONAM,VIZHINJAM P.O.** **10 NAZIRKHAN** **ADDL. A10 S/O ABDUL JABBAR, VILAYIL ISMIYA MANZIL, PULLOORKONAM,VIZHINJAM P.O. (ADDITIONAL APPELLANTS 2 TO 10 ARE IMPLEADED AS THE LEGAL HEIRS OF DECEASED APPELLANT VIDE ORDER DATED 25/9/2006 IN IA 1745/2006.) BY ADV SRI.P.A.AHAMMED** ## **RESPONDENTS/DEFENDANTS:** |**1**|**A.JALALUDEEN**| |---|---| ||**J.J VILLA, BHARATHAN HILL ESTATE,**| ||**PANGODE P.O, NEDUMANGADU TALUK.**| |**2**|**JAMEELA BEEVI**| ||**J.J VILLA, BHARATHAN HILL ESTATE,**| ||**PANGODE P.O, NEDUMANGADU TALUK.**| |**3**|**SAKEER HUSSAIN**| ||**J.J VILLA, BHARATHAN HILL ESTATE,**| ||**PANGODE P.O, NEDUMANGADU TALUK.**| |**4**|**SAGEENA BEEVI**| ||**J.J VILLA, BHARATHAN HILL ESTATE,**| ||**PANGODE P.O, NEDUMANGADU TALUK.**| |**5**|**SAJIN**| ||**J.J VILLA, BHARATHAN HILL ESTATE,**| ||**PANGODE P.O, NEDUMANGADU TALUK.**| ||**(MINOR, REPRESENTED BY THE 1ST DEFENDANT- FATHER)**| ||**BY ADVS.**| ||**SRI.GOVIND PADMANAABHAN**| ||**SRI.MANU V.**| ||**SRI.RAM MOHAN.G.**| ||**SRI.G.P.SHINOD**| **THIS REGULAR FIRST APPEAL HAVING COME UP FOR FINAL** **HEARING ON 27.11.2023, THE COURT ON 01.12.2023 DELIVERED THE FOLLOWING:** R.F.A.No.198 of 2003 3 ## **C.S.SUDHA, J.** **-------------------------------------R.F.A.No.198 of 2003 ---------------------------------------------------Dated this the 1[st] day of December, 2023** ## **J U D G M E N T** This appeal under Section 96 read with Order XLI Rule 1 C.P.C. has been filed by the plaintiff against the judgment and decree dated 20/02/2003 in O.S.No.633/1996 on the file of the Subordinate Judge's Court, Thiruvananthapuram. The respondents herein are the defendants in the suit. The parties in this appeal will be referred to as described in the suit. 2. Defendants 3 to 5 are the children of defendants 1 & 2. The plaint schedule property belongs to the defendants. The fourth and the fifth defendants are minors. The first defendant on behalf of all the defendants executed an agreement dated 28/02/1994 agreeing to assign the plaint schedule property having an extent of 5.05 acres of land for a total consideration of ₹16,50,000/-. On the date of the agreement, an amount of ₹1,00,000/- was paid as advance. Later on, as demanded by the defendants, an additional advance of ₹1,00,000/- was paid by the plaintiff on 15/03/1994, relating to which a receipt has been executed. Thus, the R.F.A.No.198 of 2003 4 defendants received an amount of ₹2,00,000/- as advance out of the total sale consideration of ₹16,50,000/-. As per the agreement, the sale deed was to be executed within six months from the date of the agreement. It was also agreed that all the necessary papers would be cleared and the property would be measured before the execution of the sale deed. After two months from the date of the execution the agreement, the plaintiff approached the defendant, for executing the sale deed after receiving the balance sale consideration of ₹14,50,000/-. Though the plaintiff approached the defendants several times personally and through mediators, the defendants kept delaying the execution of the sale deed for one reason or the other. When the plaintiff realized that the defendants were purposely evading the execution of the sale deed, the plaintiff sent a notice to defendants 1 to 3 requesting them to come to the office of the document writer, namely, Sukumaran, Kallara on 27/08/1994 and to execute the sale deed after receiving the balance consideration. The defendants did not accept the notice though intimation was given to them from the Pangodu post office. Thereafter, the plaintiff sent an advocate notice calling upon the defendants to execute the sale deed. The defendants instead of agreeing to execute the sale deed, sent a reply raising false and frivolous contentions. The plaintiff was always ready and willing to perform his part of the agreement. It is the defendants who have committed the breach of the contract. In case there is R.F.A.No.198 of 2003 5 any impediment for executing a sale deed relating to the share of the minors i.e., relating to the plaint B schedule owned by the minors, then plaintiff has every right to get the sale deed in respect of the property of defendants 1 to 3, that is, the plaint A schedule property after paying the balance sale consideration of ₹7,80,198/- after deducting the amount paid as advance. As the defendants are not ready and willing to perform their part of the contract, the suit claiming a decree for specific performance. In the alternative, the plaintiff also prayed for directing defendants 1 to 3 to repay the amount of ₹2 ,00,000/- received as advance from the plaintiff along with interest and compensation for failing to execute the sale deed as agreed to by them. 3. The defendants filed written statement denying the allegations contained in the plaint. There was never an agreement to sell the plaint schedule property as alleged in the plaint. Defendants were in dire need of money. The first defendant was ready to execute a promissory note when the amount was advanced by the plaintiff. However, the plaintiff was not amenable to the same. The plaintiff told the defendant that money would be advanced only if a sale agreement was executed in his favour. The agreement relied on by the plaintiff was executed as a security for the loan amount of ₹2,00,000/- advanced by the plaintiff to the first defendant. When the defendants tried to repay the loan amount along with interest at R.F.A.No.198 of 2003 6 the rate of 12% per annum, the plaintiff refused to accept the same and demanded exorbitant interest at the rate of 34% per annum. As the defendants did not pay off the said amount, the present suit has been filed. The plaint schedule property is a very valuable property and therefore the defendants would never agree to sell it for a paltry sum of ₹16,50,000/-. There are several buildings in the property. In some of the buildings there are tenants also. The agreement relied on by the plaintiff was never intended to be acted upon and hence the plaintiff is not entitled to the relief prayed for, contended the defendants. 4. On completion of pleadings, the parties went to trial. PW1 to PW4 were examined and Exts.A1 to A13 were marked on the side of the plaintiff. DW1 was examined on behalf of the defendants. CW1 the advocate commissioner was examined and Ext.C1 the commission report has been marked. 5. On an appreciation of the oral and documentary evidence and after hearing both sides, the trial court by the impugned judgment partly decreed the suit. The prayer for specific performance has been declined. The defendants 1 to 3 have been directed to return the amount of ₹2,00,000/- received by them with interest at the rate of 12% per annum from 15/03/1994 till realization and costs from the defendants and their assets. Aggrieved, the plaintiff has come up in appeal. R.F.A.No.198 of 2003 7 6. The point that arises for consideration in this appeal is whether there is any infirmity in the findings of the court below calling for an interference by this Court. 7. Heard both sides. 8. According to the plaintiff, the trial court erred in concluding that Ext.A1 agreement was executed as security when a loan was availed by the first defendant. As per the dictum in **Abdul Rashid Khan v. P.A.K.A.Shahul Hamid, (2000) 10 SCC 636** where any contract is required by law to be reduced into writing, then no oral evidence or understanding to the contrary would be admissible in evidence. Ext.A1 agreement for sale has been reduced into writing and therefore the defendants cannot take up a plea that the agreement was never intended to be acted upon and that it was only a document executed as security, because of the bar contained in Section 92 of the Evidence Act. The trial court erred in applying the ratio in **Bhaskaran Nair v. Habeeb Mohammed, 2002 (2) I.L.R. (Kerala) 40** . The facts in the said case are entirely different from the facts in the case on hand. The relief of specific performance though discretionary, cannot be rejected without valid reasons. The plaintiff was always ready and willing to perform his part of the agreement, which is evident from the oral and documentary evidence adduced by him. The defendants backed out of the agreement only because R.F.A.No.198 of 2003 8 the value of the property increased due to certain developments that took place in the area after the execution of Ext.A1 agreement. That is no reason to reject the relief of specific performance claimed by the plaintiff. The trial court grossly erred in appreciating the evidence on record and hence the impugned judgment requires to be interfered with, goes the argument of the plaintiff. 9. _Per contra_ , it was submitted by the learned counsel for the defendants that the evidence on record would probabilise and substantiate the contention of the defendants that Ext.A1 was executed only as a security. The total extent of the property lying contiguously is 5.05 acres of land. Out of this property, B schedule, having an extent of 2.05 cents belong to defendants 4 and 5, who were admittedly minors when Ext.A1 agreement was executed. No permission of the court had been taken to assign their property. The plaintiff has no such case also. The property is quite valuable. There are several buildings in the property and in some of them there are tenants also. However, there is no reference to the tenants in the agreement or any provision or arrangements made relating to the tenants in the property. It has also come out in evidence that the original title deeds of the property had been handed over to the plaintiff when Ext.A1 was executed. This was done because it was a loan transaction. These aspects according to the learned counsel for the defendants would R.F.A.No.198 of 2003 9 certainly create doubts regarding the case of the plaintiff relating to Ext.A1 agreement. These aspects on the other hand, probabilises the case of the defendants that the transaction between the parties was infact a money transaction and hence the trial court was right in not allowing the prayer for specific performance. There is no infirmity in the judgment of the trial court calling for an interference by this Court, goes the argument. 10. As per the plaint, the plaint schedule property has a total extent of 5.05 acres. Admittedly, a substantial portion of the same, that is, the B schedule comprising of 2.05 cents belong to defendants 4 and 5 who were minors at the time of execution of Ext.A1 agreement. No permission has been obtained from the court for the sale of the minors' property. Therefore, Ext.A1 agreement cannot bind defendants 4 and 5. The plaintiff when examined as PW1 admits that he knew that the property belong to the minors also. He also admitted that he never insisted that orders from the court must be obtained before the execution of the sale deed. If the plaintiff had actually or really intended to buy the plaint schedule property, it was quite unlikely for him to have agreed to buy a property, a substantial part of which could never have been sold by the first defendant. This is one aspect to doubt the case set up by the plaintiff. 11. Another aspect is the handing over of the original documents of the property to the plaintiff. The trial court relying on **Bhaskaran Nair** R.F.A.No.198 of 2003 10 ( _Supra_ ), held that normally title deeds of the property will be handed over when there is an absolute assignment of the property or when the property is given as a security for loan. This finding of the trial court is challenged by the plaintiff by relying on a judgment of a Single Bench of the Punjab and Haryana High Court in **Swaranjit Singh v. Jatinder Kumar, 2022 KHC Online 3307** , wherein it has been held that a will may be discarded if it is surrounded by suspicious circumstances, but not an agreement to sell. In the case on hand the plaintiff has no explanation as to why the original documents of the property were taken possession of when Ext.A1 agreement was executed. As held by this Court in **Bhaskaran Nair** _(Supra)_ normally original title deeds are handed over at the time of the registration of sale deeds. In the case on hand apparently the title deeds was handed over much earlier. The plaintiff has been unable to explain for what purpose the original title deeds was taken over by him. Hence the trial court was right in concluding relying on the aforesaid dictum that the same is one among the other grounds to suspect the case put forward by the plaintiff. 12. According to the plaintiff, in the light of Section 92 of the Evidence Act, the defendants are barred from taking up a stand that Ext.A1 agreement was never intended to be acted upon and that the document was executed only as a security when the money was advanced by the plaintiff. R.F.A.No.198 of 2003 11 This argument does not appear to be correct. Section 92 only excludes evidence to vary the terms of a written contract and has no reference to the question whether the parties had agreed to contract on the terms set forth in the document. Section 91 only excludes oral evidence as to the terms of a written contract. Oral evidence is admissible therefore to show that a document executed by a person was never intended to operate as an agreement, but was brought into existence solely for the purpose of creating evidence about some other matter. (See **Tyagaraja Mudaliyar v. Vedathanni, AIR 1936 P.C.70** and **Damodhar Narayan Sawle v. Tejrao Bajirao Mhaske, 2023 Livelaw (SC) 404)** . 13. Further, the plaintiff when examined as PW1, admitted that no steps had been taken to measure out the plaint schedule property. He also admits that he had never asked for the same. He further admitted that he had never demanded to see the encumbrance certificate and that he had not taken any steps to check the encumbrance certificate relating to the property. This is yet another ground to suspect the case of the plaintiff relating to Ext.A1 sale agreement. According to the defendants there are several rubber trees standing in the property. However, when PW1 was asked about the same, he pleaded ignorance. Admittedly, there are tenants in the building situated in the property. No reference whatsoever is seen made to the tenants in Ext.A1 agreement. All these factors prompted the R.F.A.No.198 of 2003 12 trial court to disbelieve the case of the plaintiff relating to Ext.A1 and concluded that the evidence on record probabilises the case of the defendants in this case. On going through the impugned judgment, I find no infirmity or perversity in the appreciation of the evidence on record by the trial court calling for an interference by this Court. In the result, the appeal sans merit is dismissed. Interlocutory applications, if any pending, shall stand closed. **Sd/-** **C.S.SUDHA JUDGE** Jms