A.S.No.1057/1998 (D) & A.S.No.15/1999 (O.S. 76/1997, Sub Court, Kasargod)

## IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI THURSDAY, THE 30TH JUNE 2011 / 9TH ASHADHA 1933 AS.No. 1057 of 1998(D) ---------------------( O.S.NO.76/1997 OF SUB COURT, KASARGOD) APPELLANTS/DEFENDANS 1 TO 9 -------------- 1. ZOHRA 2. MOHAMMAD HUSSAIN 3. NEBISSA 4. KUNHAMINA 5. MOHAMMAD SHERIFF 6. ZAINABI, MINOR BY GUARDIAN MOTHER NO.4 KUNHAMINA 7. RUKHYA 8. NASEEMA 9. MOHAMMAD HANEEFA NOS. 8 AND 9 ARE MINORS BY GUARDIAN MOTHER NO.7. NOS. 4 AND 7 ARE WIVES OF LATE ISUBU BEARY AND NOS. 1 TO 3, 5, 6 AND 8 AND 9 ARE CHILDREN OF ISUBU BEARY. ALL ARE NOW RESIDING AT AMBIKANAM IN PAIVALIKE VILLAGE AND POST, KASARGOD TALUK BY ADV. SRI.K.G.GOURI SANKAR RAI RESPONDENTS/PLAINTIFF AND 10TH DEFENDANT - --------------1. M.SUBRAYA BHAT S/O VENKATRAMANA BHAT RESIDING AT AMBIKANA OF PAIVALIKE VILLAGE AND POST KASARGOD TALUK 2. AISABI, W/O ABDULLA RESIDING AT PALLAKANA IN PAIVALIKE VILLAGE AND POST KASARGOD TALUK ADV. SRI.P.K.MUHAMMED THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 28/06/2011 ALONG WITH A.S.NO.15/99, THE COURT ON 30/06/2011 DELIVERED THE FOLLOWING: ## **A.K.BASHEER & P.Q.BARKATH ALI, JJ.** - - - - - - - - - - - - - - - - - - - - - ## **A.S.Nos.1057/1998 & 15/1999** - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 30[th] day of June, 2011 ## **JUDGMENT** ## Barkath Ali, J. The plaintiff in a suit for specific performance of an agreement for sale of the plaint A schedule property is the appellant in A.S.No.15/1999. In this appeal, he challenges the judgment and decree of the lower court dated August 17, 1998 granting a decree for recovery of the advance amount paid by the plaintiff to defendants under the agreement Ext.A1 against defendants 1 to 4 and 7. A.S.No.1057/1998 is filed by defendants 1 to 9 in so far the trial court granted the decree for recovery of the amount and contending that plaintiff is liable to account for the income received by him from the properties and the same should have been adjusted towards the amount received by the defendants. 2. The case of the plaintiff as testified by him as PW1 before the lower court and as detailed in the plaint in brief is this : Respondents 1 to 10/defendants are the legal heirs of late Isubu 2 A.S.No.1057/98 & 15/199 Beary who died in 1995. Late Isubu Beary had three wives Beepathumma, Kunhamina ( 4[th] defendant) and Rukhya ( 7[th] defendant). Defendants 1, 2, 3 and 10 are the children of Beepathumma. Defendants 5 and 6 are the children of Kunhamina/4[th] defendant. Defendants 8 and 9 are the children of 7[th] defendant/Rukhya. 10[th] defendant had relinquished her right over plaint A schedule properties to late Isubu Beary under Ext.A12 agreement dated 26/01/1994 and therefore on the death of Isubu Beary on 9/2/1995, the said properties devolved on defendants 1 to 9. They entered into an agreement to sell the plaint A schedule properties to the plaintiffs for a sale consideration of Rs. 4,50,000/-. They received an advance amount of Rs. 2,00,000/-. The agreement was that defendants 1 to 10 will execute a partition deed allotting plaint A schedule properties to their share and thereafter execute the sale deed in favour of the plaintiff after receiving the balance sale consideration of Rs. 2,50,000/-. The plaintiff has effected improvements in the property worth Rs. 1,50,000/-. Plaintiff has also paid Rs. 43,537/- to discharge the debts of late Isubu Beary in Paivalike Branch of Syndicate Bank. A.S.No.1057/98 & 15/199 3 Inspite of repeated requests, defendants 1 to 9 did not execute the sale deed. The 10[th] defendant filed O.S.No.81/1995 before the Sub Court to defeat the right of the plaintiff over the property. Therefore, defendants 1 to 9 may be directed to execute the sale deed in respect of plaint A schedule properties after accepting the balance sale consideration. 3. The case of the defendants were of total denial. They contended that Ext.A1 agreement is a forged one. 10[th] defendant has also denied the execution of Ext.A12 agreement in favour of late Isubu Beary. The defendants would contend that they did not intend to sell the plaint A schedule properties to the plaintiff, that huge debts were incurred by late Isubu Beary, that they took a loan of Rs. 2 lakhs from the plaintiff and he was put in possession to take the income of plaint A schedule properties for three years for discharging the loan amount and that therefore the plaintiff is not entitled to get a decree for specific performance of the agreement for sale Ext.A1. 4. PWs 1 to 4 were examined and Exts.A1 to A12 were marked on the side of the plaintiff. DW1 and DW2 were examined and A.S.No.1057/98 & 15/199 4 Exts.B1 to B5 were marked by the defendants. Exts.X1 to X3 were also marked. On an appreciation of evidence, the lower court found that Ext.A1 was executed by defendants 1 to 4 and 7, that the case of the plaintiff that 10[th] defendant has lost his title over the property by executing Ext.A12 in favour of late Isubu Beary cannot be accepted, Ext.A10 is not binding on 10[th] defendant as well as defendants 5, 6, 8 and 9 who were minors at that time, that Ext.A1 agreement for sale is impossible of performance, therefore granted a decree for recovery of advance amount and the amount paid by him to discharge the debt of late Isubu Beary in Paivalike Branch of Syndicate Bank with interest and cost. The plaintiff has challenged the said judgment and decree in A.S.No.15/1999. 5. The defendants have filed A.S.No.1057/1998 contending that the trial court should have held that plaintiff is bound to pay mesne profits to the defendants and that plaintiff should have been directed to surrender possession of the plaint A schedule properties on return of the advance amount paid. 6. When both these appeals came up for hearing, learned A.S.No.1057/98 & 15/199 5 senior counsel Sri.S.V.Balakrishna Iyer, fairly conceded that in view of the prohibition envisaged in Section 54 of Transfer of Properties Act and Sections 17 and 49 of Registration Act, deceased Isubu Beary did not obtain title over plaint A schedule property regarding the share of 10[th] defendant and that she is not bound by the agreement for sale Ext.A1 and that Ext.A1 is also not binding on defendants 5, 6, 8 and 9 who were minors at that time. He confined his argument to the point that defendants 1 to 4 and 7 who are bound by Ext.A7 should be directed to execute sale deed in respect of their share over the property. 7. Learned counsel for the defendants Sri.K.G.Gowri Sankar Rai on the other hand would contend that such a course is not possible as defendants 5, 6, 8 and 9 who are minors have also right over the property. 8. Therefore, the only point which arises for consideration is whether Ext.A1 agreement is impossible of performance or whether it can be specifically enforced with respect to shares of defendants 1 to 4 and 7. 9. The execution of Ext.A1 is proved by the evidence of PW1, A.S.No.1057/98 & 15/199 6 the plaintiff , PW3, the scribe of Ext.A1 and PW4 one of the attestors of Ext.A1 which is not seriously challenged in this appeal. The 10[th] defendant has filed O.S.No.81/1995 before the same court for partition and obtained a preliminary decree for partition. It is submitted by the counsel for the defendants that final decree has been passed in that case and 10[th] defendant had recovered her share of the properties. 10. For several reasons, we are inclined to confirm the finding of the trial court that Ext.A1 is impossible of performance. It is the admitted case that defendants 1 to 4 and 7 have got 76/176 shares in the assets of late Isubu Beary while minor defendants have got 98/176 shares . The major share belongs to the minors. Further, the minors who are not bound by Ext.A1 and 10[th] defendant who is not a party to Ext.A1 cannot be directed to set apart any specific portion of the property to defendants 1 to 4 and 7. That apart, there is no evidence to show that plaintiff was willing to perform his part of the contract. He did not sent any notice to the defendants. 11. Citing the decision in **Gulam Abbas v. Haji Kayam Ali** **and others** ( AIR 1973 Supreme Court 554), learned senior counsel for A.S.No.1057/98 & 15/199 7 the plaintiff Sri.S.V.Balakrishna Iyer argued that relinquishment of future possible right of inheritance by a muslim heir, for a consideration, may debar him from setting up his right when it actually comes into being and that by executing Ext.A12, 10[th] defendant is estopped from claiming any right over the property. We are unable to agree. Section 17 of the Registration Act prescribes the documents which are compulsorily registrable which includes : Non-testamental instruments which acknowledged the receipt or payment of any consideration on account of the creation, declaration, assignment, limitation or extinction of any right, title or interest. Section 49 of the Registration Act provides that “no document required by Section 17 or by any provision of Transfer of Property act to be registered shall affect any immovable property comprised therein unless it has been registered.” 12. Section 54 of Transfer of Property Act clearly provides that any transfer in the case of immovable property above the value of Rs.100/- can be made only by a registered instrument. That being so, Ext.A12, if intended as a sale deed, it was not registered. If it is treated A.S.No.1057/98 & 15/199 8 as an agreement for sale, no sale deed was executed. That being so, late Isubu Beary could not have obtained any title over item 10 and 11 of plaint A schedule property under Ext.A10. Therefore, the above contention raised by the learned senior counsel for the plaintiff that 10[th] defendant cannot claim any right over item 10 and 11 of the plaint A schedule property cannot be sustained. 13. Citing the following decisions, senior counsel Sri.S.V.Balakrishna Iyer argued that a contract can be partly enforced. _Kartar Singh v. Harjinder Singh and others ( AIR 1990 Supreme Court 854)_ _Krishnan Chellappan v. Kutty Kunjamma ( 1988 (2) KLT 512)_ _Subramani v. Kannappa Reddiar and others ( AIR 1973 Madras 393 ( V 60 C 125)_ _Santhosh Kumar v. Varghese ( 1987 (2) KLT 27)_ _Krishnan v. Krishnan ( 2003(3) KLT 166)_ _Sasidharan Pillai v. Devaky Amma ( 1991(1)KLT 590)_ _Venkiteswara Pai Rama Pai. v. Luis ( AIR 1964 Kerala 125(FB)_ _K.S.Krishnan v. Krishnan S/o Kizhakkumbrath Arumugha Tharakar ( AIR 1993 Kerala 134)_ _Seetharam v. Krishna Vadhyar ( 2007 (3) KLT 623)_ A.S.No.1057/98 & 15/199 9 _Varghese v. Devaki Amma Balambika Devi ( 2005 (4) KLT 530 (SC)_ 14. It is not disputed that the a contract can be partly enforced only if possible. But Section 14(b) of Specific Relief Act provides that if the contract runs into such a minute or numerous details, the court cannot enforce the specific performance of its material terms. In the present case, we have found that Ext.A1 agreement for sale is impossible of performance as 10[th] defendant is not a party to it and minor's shares are also involved. Therefore, we find no merit in the above contention of the learned senior counsel for the plaintiff. 15. Plaintiff has filed I.A.No.1759/2011 to amend the plaint and to incorporate a prayer for specific performance of Ext.A1 agreement for sale in respect of the shares of defendants 1 to 4 and 7. On going through the records, it is seen that plaintiff has filed a similar petition before the trial court as I.A.No.567/1998 which was dismissed by the learned Sub Judge. That apart, we have found that Ext.A1 agreement for sale is impossible of performance. Further, at this belated stage, we are not inclined to allow such an amendment. Therefore, I.A.No.1759/2011 is dismissed. As we have found that A.S.No.1057/98 & 15/199 10 Ext.A1 agreement for sale cannot be specifically enforced, the trial court is perfectly justified in granting a decree for recovery of the advance amount of Rs.2,00,000/- paid andRs. 43,537/- paid by the plaintiff towards the debt of Isubu Beary in Paivalike Branch of Syndicate Bank. That being so, confirming the judgment and decree of the lower court, A.S.No.15/1999 is dismissed with cost. 16. As regards A.S.No.1057/1998 filed by defendants 1 to 9, the appellants have prayed that the plaintiff should have been made liable to account for the income received from the properties and that it should have been adjusted towards the advance amount paid. Appellants in this appeal has also prayed that in equity the plaintiff should have been directed to hand over possession of the plaint schedule properties to them . 17. The case of the defendants that plaintiff should be directed to account for the income received from the properties cannot be considered in this proceedings. Plaintiff has also claimed value of improvements. Therefore, the claim of the defendants for mesne profits and the claim of plaintiff for value of improvements can be A.S.No.1057/98 & 15/199 11 considered only in a separate suit. But in equity, the defendants are entitled to get back the properties in the possession of the plaintiff on payment of the advance amount received. 18. Thus, A.S.No.1057/1998 is allowed in part. The decree of the lower court is modified to the effect that when defendants 1 to 4 and 7 deposit the decretal amount before the lower court, the plaintiff shall hand over possession of the plaint A schedule properties to them, failing which defendants 1 to 4 and 7 can recover the same from the plaintiff by executing this decree. One month time is granted to defendants 1 to 4 and 7 to deposit the amount in the lower court. Plaintiff can withdraw that amount only, if he surrenders possession of the plaint A schedule properties to the defendants. In the result, A.S.No.15/1999 is dismissed with cost. A.S.No.1057/1998 is allowed in part as found above. ## **A.K.BASHEER, JUDGE** ## **P.Q.BARKATH ALI, JUDGE** sv. A.S.No.1057/98 & 15/199 12 A.S.No.1057/98 & 15/199 13