Azhimala Siva Kshethra Devaswom Trust, Pulinkudi v. Gomathy and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT :** **THE HONOURABLE MR. JUSTICE K.PADMANABHAN NAIR TUESDAY, THE 1ST APRIL 2008 / 12TH CHAITHRA 1930** **AS.No. 808 of 1999(B)** **--------------------OS.150/1995 of SUB COURT,NEYYATTINKARA ....................** ## **APPELLANTS/PLAINTIFFS:** ## **----------------------------------** **1. AZHIMALA SIVA KSHETRA DEVASWOM TRUST PULINKUDI, REP. BY PRESENT GENERAL SECRETARY P.S.CHANDRA KUMAR, S/O.SADASIVA PANICKER, A.C.VILLA, PULINKUDI, MULLOOR P.O., VIA VIZHINJAM. (SUBSTITUTED)** **2. S.RAJENDRAN, S/O.SIVASANKARAN, PRESENT PRESIDENT OF AZHIMALA SIVA KSHETRA DEVASWOM TRUST, RESIDING AT R.B.NIVAS, PULINKUDI, NEYYATTINKARA. (SUBSTITUTED)** **1. AZHIMALA SIVA KSHETHRA DEVASWOM TRUST, PULINKUDI KOTTUKAL VILLAGE, REPRESENTED BY ITS GENERAL SECRETARY, N.J.SHAMMI, S/O. NEHRU, RESIDING AT VALIAVILA VEEDU, KOTTUKAL VILLAGE, NEYYATTINKARA TALUK.** **2. P. PUSKARA PANICKER, RESIDING AT SURESH BHAVAN, PULUMKUDI, MULLOOR, KOTTUKAL VILLAGE, PRESIDENT OF THE AZHIMALA SIVA KSHETHRA DEVASWOM TRUST, PULINKUDI, KOTTUKAL VILLAGE.** **(NAMES OF APPELLANTS ARE SUBSTITUTED AS PER ORDER DATED 1.4.2008 IN I.A. NO.463 OF 2004)** **BY ADV. SRI.P.G.PARAMESWARA PANICKER (SR.) SRI.T.M.CHANDRAN & SRI.P.GOPAL** ## **RESPONDENTS/DEFENDANTS:** **-----------------------------------------** **1. GOMATHY, W/O.LATE ARJUNAN, AGED 62 YEARS, RESIDING AT MAVILA PUTHUVAL THOTTATHU PUTHEN VEEDU, CHOWARA, KUTTUKAL VILLAGE, NEYYATTINKARA TALUK.** ## **A.S. NO.808 OF 1999** **2. VIJAYALEKSHMI, D/O.GOMATHY, AGED 47 YEARS, RESIDING AT -DO- -DO- -DO-** **3. JAYAKUMARI, D/O.GOMATHY, AGED 40 YEARS, RESIDING AT -DO- -DO- -DO-** **4. SAKUNTHALA KUMARI, D/O.GOMATHY, AGED 36 YEARS, RESIDING AT -DO- -DO- -DO-** **5. A.ASOK KUMAR, S/O.LATE ARJUNAN, AGED 32 YEARS, RESIDING AT -DO- -DO- -DO-** **6. SANTHAKUMARI, D/O.GOMATHY, AGED 44 YEARS, RESIDING AT -DO- -DO- -DO-** - **(*)7. NARAYANANANDAN, S/O.LATE VELAYUDHAN, AGED 60 YEARS, RESIDING AT K.P.VI/532, PUTHUVAL THOTTATHU, PULINKUDI, KOTTUKAL VILLAGE, NEYYATTINKARA TALUK. (DIED. LRS IMPLEADED)** **8. GOPINATHAN, S/O.BHANU PANICKER, AGED 57 YEARS, RESIDING AT BAKTHIVILASOM, KOTTUKAL VILLAGE, NEYYATTINKARA TALUK.** ## **ADDL.RESPONDENTS 9 TO 13 IMPLEADED:** **9. VIJAYAMMA, W/O.LATE NARAYANANANDAN, RESIDING AT L.P.VI/532, PUTHUVAL THOTTATHU, PULINKUDI, KOTTUKAL VILLAGE, NEYYATTINKARA TALUK.** **10. N.V.SHAJI, S/O.LATE NARAYANANANDAN, -DO- -DO- -DO-** **11. N.V.VIJAYAN, -DO- -DO- -DO-** **12. N.V.SHANMUGHAN, -DO- -DO- -DO-** **13. N.V.JAYACHANDRAN, -DO- -DO- -DO-** **ADDL.RESPONDENTS 9 TO 13 ARE IMPLEADED AS THE LRS OF DECEASED 7TH RESPONDENT AS PER ORDER DATED 16.7.2002 ON CMP NO.4336/2001.** **R6 BY ADV. SRI.R.S.KALKURA R2 BY ADV. SRI.G.S.REGHUNATH R1 BY ADV.SRI.K.P.SREEKUMAR** ## **THIS APPEAL SUIT HAVING BEEN FINALLY HEARD ON 01/04/2008 ALONG WITH CROSS-OBJECTION, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **K. PADMANABHAN NAIR, J.** = = = = = = = = = = = = = = = = = = = ## **A.S. NO. 808 OF 1999 AND CROSS OBJECTION** **= = = = = = = = = = = = = = = = = = = Dated this the 1[st] day of April, 2008** **J U D G M E N T --------------------** **The appeal is filed by the plaintiffs in O.S.No.150/95, on the file of Subordinate Judge's Court, Neyyattinkara challenging the decree and judgment of the court below dismissing the suit. The memorandum of Cross Objection is filed by the first defendant challenging a finding in the judgment.** **2. The first plaintiff, Azhimala Siva Kshetra Devaswom Trust is represented by its General Secretary. The second plaintiff is the President of the first plaintiff. The plaintiffs filed the suit for specific performance of an agreement for sale on the following averments. The first plaintiff Devaswom Trust owns a temple. The main deity is Lord Shiva. There are other subsidiary deities also. The Devaswom Trust being an unregistered organisation, the suit was filed by the plaintiffs in a representative capacity. An extent of 64.750 cents of property comprised in various survey numbers of Kottukal village was purchased by the 1[st] defendant and her husband** ## **A.S. NO.808 OF 1999** ## **-: 2 :-** **late Arjunan under sale deed No. 6063/60 of the Venganoor Sub Registry Office. After the death of Arjunan, his one half right in the above said property devolved upon defendants 1 to 6 who are his widow and children. So in addition to the one half right, the 1[st] defendant was having 1/6 share over the remaining one half of the property. First defendant gifted 2 cents of property from her one half share for the benefit of the above said Azhimala Temple in the year 1965 and surrendered possession. That 2 cents of property was enjoyed by the said temple as its own property. On 30.11.93, 1[st] defendant along with defendants 2 to 5 executed an agreement for sale in favour of 7[th] defendant, agreeing to sell their respective shares in the above said property for an agreed sale consideration of Rs.12,000/- per cent. During the subsistence of that agreement defendants 1 and 7 together executed another agreement for sale agreeing to sell 8 cents of property comprised in survey Nos.481/AB, 481/2B, 481/1A (481/AB-89 and 481/1B-85 as per tax receipts) in favour of the plaintiffs for a sale consideration of Rs.12,000/- per cent. The agreement was executed on 20.1.1994 and the first defendant received an amount of Rs.20,000/as part of sale** ## **A.S. NO.808 OF 1999** ## **-: 3 :-** **consideration from Shri Bahuleyan, the then President of the first plaintiff. The period for the execution of sale deed in favour of the 7[th] defendant was fixed as 4 months with a further assurance that the same will be extended until the 6th defendant also joins to execute the sale deed. The period for execution of the sale deed in favour of the plaintiffs stated in the agreement dated 20.1.1994 was also same as that in the first agreement dated 30.11.1993. First defendant had acknowledged the oral gift of 2 cents to the 1[st] plaintiff, Trust in the above said agreement. That 8 cents was described as plaint schedule property. The plaintiffs were always ready and willing to purchase the property at any time after the date of agreement after paying the balance of consideration. On several occasions the office bearers of the plaintiff Trust approached defendants 1 and 7 and requested them to receive the balance of consideration and execute the sale deed. But they did not execute the sale deed. Enquiries were made and it was revealed that defendants 1 to 5 have executed 2 sale deeds in favour of the 8[th] defendant on 1.3.1995 and 29.4.1995, thereby transferred 56.406 cents of** ## **A.S. NO.808 OF 1999** ## **-: 4 :-** **property to him. The 7[th] defendant has also colluded with defendants 1 to 5 and 8 to the above said transactions. Since the entire property is lying as a compact plot and there was no partition among defendants 1 to 6, defendants 2 to 6 were also made parties in the suit. First defendant has no right to sell the plaint schedule property to any other person other than to the plaintiffs and the plaintiffs were always ready and willing to pay the balance sale consideration and get the sale deed executed in their favour at any date after the execution of the said agreement and there is no laches or negligence on the part of the plaintiffs in fulfilling their part of obligation under the above said contract. The plaintiffs are even now ready and willing to pay the balance sale consideration to the 1[st] defendant and get the sale deed executed in favour of the Devaswom. It is also averred that the 8[th] defendant purchased the property fully knowing the existence of the two agreements with the plaintiffs and with the 7[th] defendant. He purchased the properties with a mala fide intention to harass the office bearers of the Trust. The sale deeds executed in favour of the 8[th] defendant are sham documents without any consideration and the same are not binding on the plaintiffs.** ## **A.S. NO.808 OF 1999** ## **-: 5 :-** ## **Hence the suit for specific performance.** **3. First defendant filed a separate written statement contending that the suit was not maintainable. The description of the plaint schedule property was false and artificial. It was contended that the plaintiffs in collusion with the 7[th] defendant and Bahuleyan had filed the present suit. The address of the plaintiffs shown in the plaint were not correct. The existence of the Trust was admitted but the plaintiffs had no legal right to file the suit. The extent of property purchased by the 1[st] defendant and her husband was 67.750 cents of land and not 64.750 cents of land. The properties were being enjoyed by them in common. The averments regarding the extent of the property and the rights of respective parties stated in the plaint were wrong. The 1[st] defendant did not give 2 cents of property as gift to the Temple. The averment that the 2 cents of property was in the possession of temple from 1965 was false and the first plaintiff has no possession over the property. Execution of the agreement for sale in favour of the 7[th] defendant was admitted. The 7[th] defendant did not pay any amount as advance. He backed out from the promise and he was not** ## **A.S. NO.808 OF 1999** ## **-: 6 :-** **ready and willing to get the sale deed executed in his favour. So, that agreement lapsed. First defendant did not agree to convey 8 cents of property to the plaintiffs or received any amount as advance. The agreement dated 20.1.1994 is a forged one and the same was fabricated by the plaintiffs along with the 7[th] defendant and Bahuleyan. The 1[st] defendant did not execute such a document. The sale deeds executed in favour of 8[th] defendant were valid and supported by aconsideration. There was no collusion between defendants 1 to 7 and 8. There was no agreement between plaintiffs and 1[st] defendant and the plaintiffs have no right to challenge the sale deed executed by the 1[st] defendant in favour of the 8[th] defendant. Plaintiffs are not entitled to get the sale deed executed in their favour. The averment that plaintiffs demanded the execution of sale deed was denied. So she pressed for dismissal of the suit.** **4. Defendants 2 to 4 filed a joint written statement contending that the suit was not maintainable. The averments in the plaint were false and wrong. It was contended that the agreement for sale produced along with the plaint was a forged and fabricated one brought into existence by the** ## **A.S. NO.808 OF 1999** ## **-: 7 :-** **plaintiffs, 7[th] defendant and one Bahuleyan and also the witnesses in the document. The description in the property was false and artificial. There was no plot of 8 cents of land lying as a separate plot. The averment that first defendant handed over possession of 2 cents of land to the Temple was denied. There was clear cut boundary between Temple property and suit property. The 1[st] defendant alone had no right to enter into any agreement for sale or execute any sale deed. It was for the plaintiffs to prove that there is a Trust and they are the President and Secretary of the trust. The existence of a temple of Lord Shiva was admitted. It was admitted that the first defendant and her husband purchased 67.750 cents of land under sale deed No. 6063/1960. Execution of the agreement by defendants 1 to 5 in favour of 7[th] defendant was also admitted. The 7[th] defendant was not ready and willing to perform his part of contract. On several occasions defendants 1 to 5 approached the 7[th] defendant to get the sale deed executed. But he was not having sufficient funds to purchase the property. So he backed out from the agreement. The agreement lapsed on 30.3.1994. Suit** ## **A.S. NO.808 OF 1999** ## **-: 8 :-** **property having an extent of 67.750 cents belongs to defendants 1 to 6 and they are in joint possession of the property. The averment that an agreement was executed by defendants 1 and 7 on 20.1.1994 in favour of the plaintiffs and received an amount of Rs.20,000/- as advance from Bahuleyan was denied. That document was a forged and fabricated one. First defendant had not affixed her signature and the signature purporting to one that of 1[st] defendant seen in that document was not affixed by her. The 5[th] defendant did not sign the document as a witness. Defendants 1 to 6 are coowners in respect of the property. There was no partition by metes and bounds. Sale deeds executed in favour of the 8[th] defendant were valid documents and plaintiffs are not entitled to attack those sale deeds.** **5. The 5[th] defendant filed a separate written statement. It was contended that there was no such Trust as mentioned in paragraph one of the plaint. Persons who represented the Trust were not competent to represent the same. After the death of Arjunan his rights devolved upon defendants 1 to 6. The averment that 1[st] defendant gifted 2 cents of property in the year 1965 to the Trust was denied.** ## **A.S. NO.808 OF 1999** ## **-: 9 :-** **She had no right to gift the property to anybody and she did not execute any gift. The averment that defendants 1 and 7 had executed an agreement for sale of 8 cents of property in favour of the plaintiffs was denied. Agreement dated 20.1.1994 is a concocted and fabricated one. The execution of the agreement in favour of the 7[th] defendant was admitted. The receipt of advance was also admitted. 7[th] defendant was not ready and willing to perform his part of contract and hence the agreement lapsed. Since there was no agreement between defendants 1 and 7 in favour of the plaintiffs they are not entitled to get any relief. Execution of the sale deeds in favour of the 8[th] defendant was admitted. The averments in paragraphs 15 and 16 were false. Plaintiffs were not entitled to get any relief.** **6. The 6[th] defendant filed separate written statement contending that she was an unnecessary party. It was contended that she had not executed any agreement and action of other defendants was not binding on her. It was also contended that there was no partition of the property by metes and bounds. Hence she also prayed for the dismissal of the suit.** ## **A.S. NO.808 OF 1999** ## **-: 10 :-** **7. The 7[th] defendant filed a written statement admitting the entire averments in the plaint. It was contended that one Sathyadevan wanted to purchase the entire property for a sale consideration of Rs.12,000/- per cent. But the agreement was executed in favour of the 7[th] defendant. Since agreement was in favour of the 7[th] defendant, the plaintiffs as well as the 1[st] defendant requested him that he shall also join in the execution of the agreement along with 1[st] defendant. It was contended that he has no knowledge about the gift of 2 cents in favour of the Temple. The earlier agreement in favour of the 7[th] defendant lapsed. He was an unnecessary party to the suit.** **8. The 8[th] defendant filed a written statement contending that the suit was instituted by the plaintiffs in collusion with defendants 1 and 7 in order to defeat the interest of the 8[th] defendant. Azhimala Siva Kshethra Devaswom Trust is an unincorporated body and hence the suit was not maintainable. The legal requirements under Order I Rule 8 were not complied with. The extent of properties stated in the plaint was not correct. The rights of Arjunan, husband of first defendant, was inherited by his widow and** ## **A.S. NO.808 OF 1999** ## **-: 11 :-** **children. The allegation that 1[st] defendant gifted 2 cents of property to the Trust was denied. Neither the Trust nor plaintiffs had possession or right at any point of time. The 1[st] defendant never made a gift as alleged. The 6[th] defendant was not a consenting party to the agreement. The 7[th] defendant did not get any right or possession over the property as per the agreement. So he was not competent to execute a sale deed with respect to suit property. The alleged agreement dated 20.1.1994 was a fabricated one. First defendant never executed such a document. Her signature was forged in that document. The 7[th] defendant was not competent to execute the agreement for sale. Statements in the agreement were falsely made with an intention to obtain a portion of the suit property. The said agreement did not take effect. It is void ab initio. It was a document created for the purpose of filing a suit. The 1[st] defendant did not receive any amount from the plaintiffs, there was no consideration for the agreement and it was illegal. The agreement dated 30.3.1994 ceased to exist and the agreement dated 20.1.1994 is void. Since there was no agreement the averment of the plaintiffs that they were ready** ## **A.S. NO.808 OF 1999** ## **-: 12 :-** **and willing to perform their part was of no consequence. The execution of sale deeds in favour of the 8[th] defendant was known to the plaintiffs from the inception and there was no collusion as alleged. The 1[st] defendant was fully competent to execute the sale deed in favour of the 8[th] defendant. There was no agreement or contract as alleged. The 8[th] defendant is a bona fide purchaser for value from the 1[st] defendant. The plaintiffs are not entitled to question the validity of those sale deeds. It was also averred that defendants 3 and 6 filed O.S.No. 173/1995 against the 8[th] defendant for partition and a preliminary decree was passed holding that the 8[th] defendant is entitled to get 10/12 shares. The 8[th] defendant has effected valuable improvements in the property. Hence he also prayed for the dismissal of the suit.** **9. The trial court found that the suit as framed was maintainable. It was also found that Ext.A1 agreement dated 20.1.1994 executed by defendants 1 and 7 in favour of the plaintiffs was a genuine document and it is binding on the 1[st] defendant. It was also found that the case of the plaintiffs that there was an oral gift of 2 cents was not proved. The trial court found that the 8[th] defendant is a bona fide purchaser for** ## **A.S. NO.808 OF 1999** ## **-: 13 :-** **value without notice of the agreement in favour of the plaintiffs and hence the plaintiffs are not entitled to get a sale deed executed. It was also found that the plaintiffs are not entitled to get refund of the amount advanced and dismissed the suit. Challenging that portion of the decree, plaintiffs filed this appeal.** **10. The following points arise for consideration: (1) Whether the suit as framed is maintainable?** **(2) Whether the finding of the court below that Exhibit A1 agreement for sale is executed by defendants 1 and 7 and the same is a genuine document is correct?** **(3) Whether the finding of the court below that the plaintiffs are not entitled to get the agreement for sale specifically enforced is correct? and** **(4) Whether the finding of the court below that the plaintiffs are not entitled to get refund of the advance paid is correct?** ## **Point No.1** **11. Learned counsel appearing for the 8[th] defendant has argued that the suit as framed is not maintainable. It is** ## **A.S. NO.808 OF 1999** ## **-: 14 :-** **argued that plaintiffs claim that they are the Secretary and President of Azhimala Shiva Kshethra Devaswom Trust and on the date of filing of the suit, it was an unregistered Trust. It is argued that they claim to be persons representing the Devaswom and Trust, but their attempt is to get the sale deed executed in their names. A reading of plaint shows that the persons who had signed the plaint representing the Temple did not claim any personal relief. They are claiming relief in favour of the Devaswom. It is true that the deity is not impleaded in the suit. It is trite law that it is not necessary to implead the deity in all suits. Plaintiffs filed the suit in a representative capacity and notice under Order I Rule 8 was published. The sale deed is to be executed in favour of the Devaswom represented by the President and Secretary of the Trust. The property will vest with the deity and not any individual. There is no merit in the contention raised by the 8[th] defendant.** **12. It is argued that the suit ought to have been filed under Section 92 of the Code of Civil Procedure Code. In the nature of the pleadings raised in the case and reliefs sought for , this cannot be a suit under Section 92 CPC. This is a suit** ## **A.S. NO.808 OF 1999** ## **-: 15 :-** **for specific performance and that was properly framed. So the finding of the court below that the suit as framed is maintainable is correct. Point No.2** **13. It is an admitted case of both sides that the 1[st] defendant along with her late husband purchased the entire property to which the suit property forms part in the year 1960. The property was having an extent of 67.750 cents of land. First defendant's husband died and his one half right also devolved upon defendants 1 to 6 who are his widow and children. So the first defendant is entitled to get one half of the entire property and and 1/6[th] share from the remaining one half. It is admitted by both sides that defendants 1 to 5 executed Ext.X1 agreement on 30.11.1993 in favour of the 7[th] defendant. Though the 1[st] defendant had raised a contention that she had not received any amount as advance, the 5[th] defendant who is a party to that agreement, had expressly admitted the receipt of advance in his written statement. Defendants 2 to 4 had also admitted the execution of Ext.X1. They have not raised any contention that the 7[th] defendant** ## **A.S. NO.808 OF 1999** ## **-: 16 :-** **did not pay any advance. The 8[th] defendant also admitted the execution of Exhibit A1 agreement, but according to him that agreement had ceased to exist. In fact whether the 7[th] defendant paid any advance to the 1[st] defendant is a matter not arising for consideration in this appeal. The fact remains that defendants 1 to 5 who had executed Ext.X1 agreement in favour of the 7[th] defendant. In Exhibit X1 there is a clause which provides that the first defendant should execute the sale deed either to the 7[th] defendant or his nominee. The plaintiffs are not claiming any right under Exhibit X1 agreement. Since Ext.A1 was executed during the currency of Ext.X1 document, the 7[th] defendant also joined as a party to that agreement.** **14. Now I shall consider whether Ext.A1 is a genuine document. The contention raised by defendants 1,2,4,5 and 8 was to the effect that Ext.A1 is a forged and fabricated document. The 7[th] defendant admits the execution of Ext.A1 document. The 6[th] defendant pleaded ignorance. Learned counsel for the contesting defendants have raised a contention that Ext.A1 document is not supported by any consideration. Hence it s a void document. It is very pertinent** ## **A.S. NO.808 OF 1999** ## **-: 17 :-** **to note that the contesting defendants never raised a contention that though Ext.A1 was executed, it was not supported by consideration and hence it is a void document. On the other hand their specific contention was that it is a forged and fabricated document brought into existence by the plaintiffs along with the 7[th] defendant and one Bahuleyan, who was the former President of the Temple. The 5[th] defendant was an attester to that document. Though he had raised a contention that it is a fabricated document, he had not denied his signature in Exhibit A1 as forged. The 5[th] defendant did not go to box and denied his signature in Exhibit A1 agreement.** **15. The plaintiffs examined PWs 1 to 5 to prove the execution of the document. PW1 is the 2[nd] plaintiff. He proved the signatures of the 1[st] defendant and 5[th] defendant in Exhibit A1 agreement. He also deposed that an amount of Rs.20,000/- was paid as advance. He gave evidence to the effect that plaintiffs were ready and willing to pay the balance consideration. He was asked whether the Trust was maintaining any records. He deposed that there may be records to show that an amount of Rs. 20,000/- was paid as** ## **A.S. NO.808 OF 1999** ## **-: 18 :-** **advance. He deposed that, that amount was collected from devotees as donation and that was recorded in the minutes and there were records in the Trust. But those records are not produced. P.W.1 was cross-examined at length. During cross-examination P.W.1 deposed that he had seen original of Ext.X1 document while Ext.A1 agreement was executed. He also deposed that there may be records to show the names of persons who donated 20,000/- rupees. He had admitted that the Trust was registered in the year 1995 and that was after filing of the suit. PW2 is Bahuleyan. It was he who paid the advance of Rs.20,000/-. He deposed that the agreement was executed at the house of 5[th] defendant and 5[th] defendant he was an attester to Ext.A1 document. He further deposed that he handed over Rs.20,000/- to the 1[st] defendant towards part of sale consideration. That part of his evidence was not challenged during his cross-examination by the 1[st] defendant. He also deposed that there will be records in respect of the purchase of property and the payment of advance in the minutes. He also deposed that there was no separate account book to reveal the source from where the amount was collected. He further deposed that there may be records in** ## **A.S. NO.808 OF 1999** ## **-: 19 :-** **the Trust to show that Rs.20,000/- was paid. He also deposed that the amount was not kept in the bank account. The amount was kept by the Secretary in his custody. He deposed that the 1[st] defendant after receiving Rs.20,000/- gave the same to one Sathyadevan. Though the counsel for defendants 2, 4 and 5 cross-examined P.W.1, no question was put to P.W.1 challenging his evidence regarding the payment of Rs.20,000/- by Bahuleyan to 1[st] defendant. It is very pertinent to note that even the subsequent purchaser, 8[th] defendant also did not challenge that part of the evidence of PW1 during his cross-examination. The oral evidence of PW2 that he had handed over Rs.20,000/- to the 1[st] defendant at the time of execution of Exhibit A1 remain unchallenged. PWs3 to 5 proved the execution of the agreement. PW3 is the 7[th] defendant who was one of the executants of Ext.A1 document and in whose favour 1[st] defendant executed Ext.A1 agreement. PW4 is the attester to Ext.A1. The 7[th] defendant is his brother-in-law and 8[th] defendant is his uncle. So he is related to the 7[th] defendant as well as 8[th] defendant. He was examined to prove the execution of Ext.A1 document. He admitted his signature. He deposed that the person signed as** ## **A.S. NO.808 OF 1999** ## **-: 20 :-** **Gomathy was the 1[st] defendant. He also deposed that he received an amount of Rs.20,000/- from the then President. He also deposed that Asok Kumar who is the 5[th] defendant and son of first defendant also signed the document. During cross-examination by first defendant a suggestion was put to him that the first defendant did not affix her signature in Exhibit A1 she had received any amount. He denied that suggestion. His evidence that the 5[th] defendant affixed his signature in Exhibit A1 was not challenged during crossexamination. The 8[th] defendant also dis not challenge that part of the evidence. PW5 is the scribe who prepared Exhibit** **Exhibit A1 document. He also gave evidence regarding execution of ext.A1. The 1[st] defendant gave evidence as DW1. She was asked a leading question whether she had executed any agreement for sale. She answered that she did not execute any agreement for sale. Thereafter she deposed that she did not affix her signature in Exhibit A1. She had deposed that Ext.A1 document was forged and fabricated one. She was asked whether she had received Rs.20,000/- from Bahuleyan for which she answered that she did not receive** ## **A.S. NO.808 OF 1999** ## **-: 21 :-** **that amount. The answers given by DW1 during her crossexamination by the plaintiffs shows her character. She deposed that she does not remember in whose name the suit property was purchased though it was the admitted case of both sides that DW1 along with her husband purchased the property in the year 1960. She feigned loss of memory on account of her old age whenever relevant questions were put to her during the cross-examination by the plaintiffs. She deposed that she was unable to recollect any event which took place two years prior to the date of her examination. She deposed “I am unable to recollect any event which took place two years prior to this date and speak the true version of the** **same (** ഉദ�ശ� രണ� വര�� മ�ന��� നടന ക�ര�ങള ഓരമ�ച� സത�സനമ�യ� �റയ�വ�ന എന�യ�" � കഴ�യ�ല). **D.W.1 was examined on 22.6.1999. Exhibit A1 was executed in the year 1994. She deposed that she was suffering from poor eye sight and she was unable to see and identify her signature in any document. She was shown her signature in the written statement filed by her. She deposed that she was not able to** ## **A.S. NO.808 OF 1999** ## **-: 22 :-** **see the signature because of her poor eye sight and hence not able to assert whether that signature was affixed by her. She was asked to affix her signature to take specimen signatures. She refused to put her signature at the court hall. When she was asked that whether she had executed an agreement in favour of the 7[th] defendant, her answer was that she along with her four children executed an agreement. But she was unable to admit or deny whether that was the document shown to her. She deposed that even at the time of preparing the written statement, she was having poor eye sight. She was asked whether she received any consideration in the two sale deeds executed in favour of the 8[th] defendant and her answer was that she had received consideration but she does not remember the quantum received. She answered that the sale consideration was paid by the 8[th] defendant only on the date of execution of the sale deed and she did not receive any amount on any other day. She deposed that she does not know whether the agreement for sale executed by herself and the 7[th] defendant was produced before the court. She was specifically asked whether she had raised the contentions without understanding the fact and perusing the** ## **A.S. NO.808 OF 1999** ## **-: 23 :-** **documents. She did not give a direct answer. But asserted that that document was a fabricated one and she had not written it. She further deposed that she was not in a position to verify her signatures in Exhibit A1 and unable to admit or to deny the same. According to her if the signatures in the written statement and signatures in the sale deeds in favour of 8[th] defendant and those found in Exhibit A1 are similar, all those signatures were forged. She deposed that after 1993 she never voluntarily affixed any signature in any document. After 1993, either the scribes or those persons who assist them will put her signature. During reexamination she deposed that since she was having poor eye sight, she was unable to give her specimen signatures. She did not put her signatures in the original deposition to fortify her case of poor eyesight, but affixed her thump impression.** **16. The first defendant had filed two vakalaths before this Court. She had also filed a counter affidavit to I.A. No.462 of 2004 in the appeal. The two vakalaths and counter affidavit contain the signatures of the first defendant. She had signed in English. Her signatures are steady also. So it is evidently** ## **A.S. NO.808 OF 1999** ## **-: 24 :-** **clear that the only intention of the first defendant was to deny an opportunity to the court below to compare the disputed signatures with her specimen signatures. The 8[th] defendant produced the originals of the sale deeds executed by her and others. Those documents contain her signatures. I have carefully compared the signatures of the first defendant in the vakalath and written statement filed before the trial court, her signatures in the vakalath and counter affidavit filed before this Court and her signatures in Exhibits X1, A1, B1 and B2(a). All those signatures are identical and affixed by one and same person. So the case of the first defendant that Exhibit A1 agreement is a forged document fabricated by the plaintiffs with the help of the 7[th] defendant and Bahuleyan is only to be rejected.** **17. The 8[th] defendant gave evidence as DW2. He deposed that Ext.A1 document was not executed by the first defendant and the members of the Trust had no ability to raise Rs.20,000/-. It is true that the plaintiffs did not produce any documents to show that they had received these amounts as contribution or donation from various persons. First of all, PW2 who was the then President deposed that** ## **A.S. NO.808 OF 1999** ## **-: 25 :-** **there was only a minutes and there was no other documents or book to show the receipt of money. The defendants had not filed any petition calling upon the plaintiffs to produce the documents. So the trial court went wrong in drawing adverse inference against the plaintiffs on the ground of nonproduction of records.** **18. Learned counsel for the 8[th] defendant has argued that there are material contradictions in the evidence of P.Ws.4 and 5 and that alone is sufficient to hold that the execution of Exhibit A1 is not proved. P.W.4 was an attester to Exhibit A1. As I have already stated, he is the brother-in-law of P.W.3 and nephew of 8[th] defendant. It is true that he deposed that Exhibit A1 was written at the house of the 5[th] defendant and the scribe was sitting on a bench and wrote on the paper which was placed on a table. P.W.5 gave evidence to the effect that Exhibit A1 was written at the house of the 1[st] defendant and there was no bench or table and he wrote Exhibit A1 by placing the papers on the parapet wall. According to the contesting respondents there is a very material contradiction. It is to be remembered that Exhibit** ## **A.S. NO.808 OF 1999** ## **-: 26 :-** **A1 was executed on 20.1.1994 and P.Ws.4 and 5 were examined on 19.6.1999. The contradiction regarding a minute detail is not very material. As rightly held by the court below that is not a ground to reject their evidence. It is also argued that P.W.5 was not a licensed scribe and so no weight can be given to his evidence. Exhibit A1 is not a compulsory registrable document and it is not a document required to be written by a licensed scribe.** **19. The evidence discussed above clearly shows that the finding of the court below that Exhibit A1 agreement for sale was duly executed by defendants 1 and 7 and the first defendant received an amount of Rs.20,000/- as advance is perfectly correct. So that finding is only to be confirmed. I do so. There is no merit in the Cross Objection and the same is only to be dismissed. Point Nos.3 & 4** **20. Now I shall consider the question whether the plaintiffs are entitled to get the agreement specifically enforced. In a suit for specific performance the normal rule is that if a court finds that there is a proper agreement, that** ## **A.S. NO.808 OF 1999** ## **-: 27 :-** **has to be specifically enforced. In this case, the court below refused specific performance finding that the 8[th] defendant is a bona fide purchaser for value without notice of the earlier agreement. In paragraph 16 of the plaint it was specifically averred that the 8[th] defendant purchased the property fully knowing the execution of Exhibit X1 agreement with 7[th] defendant and Exhibit A1 agreement with the plaintiffs with a mala fide intention of harassing the plaintiffs, Temple and its office bearers.** ## **21. Paragraph 16 of the plaint reads as follows:** **“The 8[th] defendant purchased the property fully knowing the above said agreements with the plaintiff and the 7[th] defendant with a mala fide intention of harassing the 1[st] plaintiff temple and its office bearers. The sale deeds in favour of the 8[th] defendant are sham documents devoid of any consideration and the same are not binding on the plaintiffs”.** **The contention of the plaintiffs in paragraph 16 of the plaint was answered in paragraph 17 of the written statement. It was contended that the averments in paragraph 16 of the plaint are false and perverse. It was contended that there was** ## **A.S. NO.808 OF 1999** ## **-: 28 :-** **no agreement in favour of the plaintiffs. Thereafter it was contended that the 8[th] defendant is a bona fide purchaser for value. It was further contended that the plaintiffs never paid any amount and the agreement is a fabricated one illegally manipulated for the purpose of this case. Though there was a very specific averment in the plaint that the 8[th] defendant purchased the property with the knowledge of execution of Exhibits A1 and X1 agreements, that averment was not denied. There is no averment in the written statement of the 8[th] defendant to the effect that he purchased the property in good faith without knowledge regarding the agreement in favour of the plaintiffs. The 8[th] defendant gave evidence as D.W.2. He deposed that if there was any encumbrance he would not have purchased the property. A leading question was put to D.W.2 towards the close of his chief examination as to whether he was a bona fide purchaser for value. He answered 'yes'. It is also pertinent to note that not even a leading question was put to him to the effect that whether he was a bona fide purchaser for value without notice of Exhibit A1.** **22. In this connection it is necessary to refer to the** ## **A.S. NO.808 OF 1999** ## **-: 29 :-** ## **provisions contained in Section 19 of the Specific Relief Act.** ## **It read as follows:** **“19. Relief against parties and persons claiming under them by subsequent title.Except as otherwise provided by this Chapter, specific performance of a contract may be enforce against-** **(a) ............** **(b) any other person claiming under him by a title arising subsequently to the contract, except a transferee for value who has paid his money in good faith and without notice of the original contract;** **(c) ..............** **(d) .............. (e) ..............”** **23. A reading of Section 19(b) of the Specific Relief Act shows that the normal rule is that the agreement for sale can be enforced against any person claiming under the vendor. But that rule has got an exception. If the person claiming** ## **A.S. NO.808 OF 1999** ## **-: 30 :-** **under him is a transferee for value, who has paid his money in good faith and without notice of the agreement for sale, the agreement cannot be enforced against him. This exception has got two limbs. A person who claims the benefit of the exception must plead and prove that he had paid money in good faith and also that he had no notice of the original agreement. In this particular case, even though there is a positive averment in the plaint that the 8[th] defendant purchased the property with knowledge of Exhibits A1 and X1 agreements, that averment was not denied in the written statement. In the written statement, the 8[th] defendant had no case that he paid his money in good faith and purchased the property without notice of the agreement for sale. He had not adduced any evidence to that effect.** **24. In Vasantha Viswanathan v. V.K.N Elayalwar (2001) 8 SCC 133) the Apex Court has held as follows:** **“Under Section 19(b) of the Specific Relief Act, 1963 a specific performance of a contract can be enforced not only against either party there to but against any other person claiming under him by a title arising subsequently to the contract,** ## **A.S. NO.808 OF 1999** ## **-: 31 :-** **except a transferee for value who has paid his money in good faith and without notice of original contract”.** **In Govinddas v. Shantibai (1973) 3 SCC 418) the Apex Court has considered the quantum of proof required to discharge the onus of proof on a defendant claiming that he had no notice of the previous agreement. It was held as follows:** **“The evidence is contradictory and the court has to decide whose version is more acceptable. On behalf of the defendant-appellant it is contended that the onus of proof was very light on the appellant and they had discharged this by entering the witness box and stating that they had no knowledge. The court does not agree that in the circumstances of the case that the onus was light on the appellant when there are heavy circumstances that tell against the version of the appellant. In view of all the circumstances, the court is inclined to hold that the appellant knew of the execution of the agreement with the plaintiff”.** ## **In R.K. Mohammed Ubaidullah v. Hajee C.Abdul** **Wahab (2006) 6 SCC 402, the Apex Court has held that the** ## **A.S. NO.808 OF 1999** ## **-: 32 :-** **subsequent purchaser must prove good faith. Following the decision in Govinddas's case (supra), the Apex Court has held as follows:** **“Section 19(b) of the Specific Relief Act, 1963 protects the bona fide purchaser in good faith for value without notice of the original contract. This protection is in the nature of an exception to the general rule. Hence the onus proof of good faith is on the purchaser who takes the plea that he is an innocent purchaser. Good faith is a question of fact to be considered and decided on the facts of each case. Section 52 of the Penal Code emphasis due care and attention in relation of good faith. In the General Clauses Act emphasis is laid on honesty”.** **25. In paragraphs 7, 8 and 10 of the written statement the 8[th] defendant had admitted that he was aware of Exhibit X1 agreement. But his contention was that that agreement ceased to exist. At the time of oral evidence he put forward a case that he was unaware of even that agreement. So it is very difficult to believe that he purchased the property without making any enquiries at least with the 7[th] defendant. The only irresistible conclusion possible from the proved facts is that the 8[th] defendant purchased the property with knowledge of the existence of Exhibit A1 agreement and he** ## **A.S. NO.808 OF 1999** ## **-: 33 :-** ## **purchased the property without any good faith.** **26. There is yet another aspect. Exhibit B1 and B2 were executed during March and April 1995. The sale consideration stated in Exhibit B1 was Rs.75,000/-. The recitals in Exhibit B1 show that 28 cents of property owned by the first defendant was sold to the 8[th] defendant for a consideration of Rs.56,000/- and 8 cents of property owned by defendants 2 and 4 were sold of an amount of Rs.19,000/-. So going by the recitals in Exhibit B1, the 8[th] defendant had paid Rs.2,000/- per cent to the first defendant and Rs.2,375/- each to defendants 2 and 3. The sale consideration stated in Exhibit B2 was Rs.20,000/- for 20 cents. The sale consideration for one cent will come to Rs.977.50. It has to be noted that in Exhibit X1 agreement sale consideration stated was Rs.12,000/- per cent. At the time of evidence, the 8[th] defendant came forward with a new case that he paid Rs.12,000/- per cent, but land value shown was the minimum. It is not possible to accept that explanation. In Exhibit B1 the sale consideration paid to the first defendant was Rs.2,000/- per cent and Rs.2,375/- per cent to other vendors. The sale consideration in Exhibit B2 was Rs.977.50 per cent. So the case that he had shown** ## **A.S. NO.808 OF 1999** ## **-: 34 :-** **minimum land value is false. It is to be noted that the 8[th] defendant was not an ordinary layman. He retired as a Professor of a College as can be seen from his deposition. In this connection the oral evidence of D.W.1 is also very relevant. She deposed that she had received a consideration of Rs.12,000/- per cent and that fact is stated in Exhibit B1 whereas in Exhibit B1 the total consideration for It 32 cents was stated as Rs.75,000/. It is also to be noted that going by the recitals in Exhibit B1 and B2, the 8[th] defendant had not paid any consideration at all on the date of execution of Exhibits B1 and B2. In Exhibit B1 it is stated that the entire consideration was paid to the vendors long prior to the execution of Exhibit B1. In Exhibit B2 also it is stated that Rs.20,000/- was paid to the vendors long prior to the execution of that document for purchasing other properties. So going by the recitals in Exhibits B1 and B2 the vendors had not received any amount at all on the date on which those sale deeds were executed. But it is very interesting to note that D.W.1 had deposed that the entire sale consideration was received on the date of execution of Exhibits B1 and B2. She had asserted that she did not receive any amount on any other** ## **A.S. NO.808 OF 1999** ## **-: 35 :-** **day. So the only inference possible is that those documents were executed without paying any consideration. The learned Sub Judge has not considered any of these aspects while holding that the 8[th] defendant was a bona fide purchaser without notice of Exhibit A1. Evidence on record clearly proves that the 8[th] defendant got Exhibits B1 and B2 sale deeds executed fully knowing the existence of Exhibit A1 agreement. So the trial court went wrong in holding that the 8[th] defendant was a bona fide purchaser for value without notice of Exhibit A1 agreement.** **27. Now I shall consider whether the plaintiffs are entitled to get a relief for specific performance. Learned counsel for the defendants argued that the mere fact that the court finds that there was an agreement alone is not sufficient to order specific performance. It is argued that it is a discretionary relief and going by the nature of the evidence in this case plaintiffs are not entitled to such a relief. It is also argued that when the trial court exercises the discretion vested in favour of one party, the appellate court shall not interfere with that discretion. Learned counsel for the** ## **A.S. NO.808 OF 1999** ## **-: 36 :-** **defendants relied on a decision reported in Mys. S.R.T. Corpn. v. Mirja Khassim (AIR 1977 SC 747) to argue that the relief of specific performance is a discretionary relief and it is the discretion of the court. In that case the Apex Court was considering the enforceability of a service contract. The principle laid down in that decision cannot have any application to the facts of this case. He also relied on a decision reported in Matadin Agarwal v. Syed Abdul Razak (AIR 1997 AP 103) in which it was held that specific performance is not an absolute right but it rests entirely in judicial discretion and the appellate court shall not interfere with the discretion exercised by the trial court unless discretion was exercised arbitrarily. In view of the facts and circumstances proved in this case, the trial court ought not have exercised the discretion vested in it in favour of the 8[th] defendant. The court below had not entered into any finding to the effect that it is not a fit case in which specific performance is to be refused.** **28. The learned counsel for the 8[th] defendant relied on a decision reported in Lourdu Mari David v. Louis** ## **A.S. NO.808 OF 1999** ## **-: 37 :-** **Chinnaya Arogiaswamy (AIR 1996 SC 2814) to argue that under Section 20 of the Specific Relief Act, the decree for specific performance is in the discretion of the court but the discretion should not be refused arbitrarily. In fact in this case the court below refused to exercise the discretion vested in it in favour of the plaintiffs on account of a wrong finding of fact. Learned counsel also relied on the decision reported in A.C. Arulappan v. Ahalya Naik (AIR 2001 SC 2783). In that case the plaintiff tried to take undue advantage over the defendant. He also did not approach the court with clean hands. Hence the Apex Court held that the plaintiff in such a suit is not entitled to get any relief. The principles laid down in that decision can have no application to the facts of this case. The court below wrongly held that the 8[th] defendant was a bona fide purchaser for value without notice of Exhibit A1. As I have already stated, plaintiffs are not claiming personal reliefs. They are claiming reliefs for and on behalf of a Devaswom.** **29. The plaintiffs had specifically averred that they were always ready and willing to pay the balance sale** ## **A.S. NO.808 OF 1999** ## **-: 38 :-** **consideration and purchase the property. This averment was not denied by the defendants. The plaintiffs adduced oral evidence also. So I hold that the plaintiffs were ready and willing to perform their part of the contract.** **30. So the finding of the court below that the plaintiffs are not entitled to the relief of specific performance is illegal and liable to be set aside. I set aside the said finding and hold that the plaintiffs are entitled to get specific performance of Exhibit A1 agreement.** **31. The court below found that the plaintiffs have failed to prove the oral gift of 2 cents of land. In a suit for specific performance, the court need only consider whether the plaintiff who filed the suit for specific performance is entitled to get that relief. In the plaint only 8 cents of land covered by an agreement for sale is scheduled. The only question arising for consideration is whether the plaintiffs are entitled to get a decree for specific performance. Whether the first defendant gifted 2 cents to the Devaswom and who is in possession of that 2 cents of land, etc., are immaterial for deciding this suit. So the finding regarding 2 cents is set aside and that issue is left open to be decided in appropriate** ## **A.S. NO.808 OF 1999** ## **-: 39 :-** **proceedings.** **32. Now I shall come to the nature of the reliefs that can be granted. In Govindan nair v. Gopalakishna Sharma (1988 (1) KLT 739) it was held that Hindu Idol is a juristic person and has juridical status with the power of suing and being sued. There cannot be any dispute regarding the legal position. But in this case an unregistered Trust was managing the day to day affairs of the Azhimala Siva Kshetram in which Lord Shiva is the main deity. There are other deities also. Subsequently that Trust was registered also. The relief sought for in the plaint is to execute the sale deed in favour of the first plaintiff Devaswom. The sale deed shall be executed in favour of the Devaswom.** **33. Property originally belonged to defendants 1 to 6. The 1[st] defendant had assigned her rights in favour of the 8[th] defendant under Exhibits B1 and B2 sale deeds. So the 8[th] defendant has to execute the sale deed after receiving the balance consideration from the plaintiffs. Since the sale deed is in respect of an undivided share, in the normal course the sale deed can be also for an undivided 8 cents from the suit** ## **A.S. NO.808 OF 1999** ## **-: 40 :-** **property. It is for the plaintiffs to work out their remedies to get the property partitioned by filing a suit for partition.** **34. Appellants have filed I.A. No.462 of 2004 to amend the plaint seeking permission to incorporate a prayer for recovery of the advance amount. That was opposed by the respondents. In view of the decision which I have taken in the appeal, it is not necessary to consider this petition. The petition is closed.** **35. In the result, the appeal is allowed. The decree and judgment passed by the trial court dismissing the suit are hereby set aside. A decree for specific performance of Exhibit A1 agreement is passed in favour of the plaintiffs-appellants. Defendants 1 and 8 are directed to execute sale deed in respect of the plaint schedule property of 8 cents in favour of the Devaswom represented by its Secretary and President. The entire balance consideration is to be paid to the 8[th] defendant who is the present owner. In case they refuse to execute the sale deed within three months from today, the plaintiffs-appellants can get the same executed through court.** **36. After getting the sale deed executed, it is open to** ## **A.S. NO.808 OF 1999** ## **-: 41 :-** **the appellants to work out their remedy to get the 8 cents partitioned by filing a suit for partition.** **37. The Cross Objection filed by the first defendant is dismissed.** **Civil Miscellaneous Petition No.6824 of 1999 and 3756 of 2001 and Interlocutory Application No.1000 of 2003 shall stand dismissed.** **K. PADMANABHAN NAIR, JUDGE.** ## **vsv** **K. PADMANABHAN NAIR, J. ===================== A.S. NO. 808 OF 1999 & CROSS OBJECTION ===================== J U D G M E N T** **------------------------------------------1ST APRIL, 2008**