George, s/o Paily and V. V. George v Annamkutty and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE V.CHITAMBARESH & THE HONOURABLE MR. JUSTICE SATHISH NINAN THURSDAY, THE 31ST DAY OF AUGUST 2017/9TH BHADRA, 1939 RFA.NO. 329 OF 2005 (C) -----------------------AGAINST THE JUDGMENT IN O.S. NO.563 OF 1999 OF I ADDITIONAL SUB COURT,ERNAKULAM DATED 30-10-2004 APPELLANTS/DEFENDANTS 1 & 2: ----------------------------------- 1. GEORGE, S/O. PAILY, AGED 46 YEARS, RESIDING AT KARIKKOTTU MYALIL, KIDNAGETHIL DESOM KANAYANNUR VILLAGE, KANAYANNUR TALUK. 2. V.V. GEORGE AGED 36 YEARS S/O. VARKEY, RESIDING AT VEEPPNATH VEEDU, MAMALA DESOM KANAYANNUR TALUK. BY SENIOR ADVOCATE SHRI S. SREEKUMAR RESPONDENTS/PLAINTIFFS/3[RD] DEFENDANT: ----------------------------------- 1. ANNAKUTTY, AGED 48 YEARS, W/O. LATE JACOB, RESIDING AT PALLITHAZATH MULAMTHURUTHY DESOM, MULAMTHURUTHY VILLAGE KANAYANNUR TALUK. 2. SUNIL JACOB, AGED 28, S/O. LATE JACOB, PALLITHAZATH, MULAMTHURUTHY DESOM MULAMTHURUTHY VILLAGE, KANAYANNUR TALUK. 3. JULY, AGED 21 YEARS, W/O. EBY, RESIDING AT THARAKKATTU VEEDU AND D/O. JACOB & ANNAKUTTY, PALLITHAZHATH MULAMTHURUTHY DESOM, MULAMTHURUTHY VILLAGE KANAYANNUR TALUK. R1-R3 BY ADV. SRI.C.P.SAJI ADV. SRI.DILIP MOHAN ADV. SMT.RIPSY PIUS THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ALONG WITH R.F.A. NO.138 OF 2006 ON 23.08.2017, THE COURT ON 31.08.2017 DELIVERED THE FOLLOWING: “C.R.” ## **V. CHITAMBARESH** ## & ## **SATHISH NINAN, JJ** . = = = = = = = = = = = = = = = = = = **R.F.A. No.329 of 2005 & R.F.A No.138 of 2006** = = = = = = = = = = = = = = = = = = Dated this the 31[st ] day of August, 2017 J U D G M E N T ## **SATHISH NINAN, J** . R.F.A. No.329 of 2005 arises from O.S. No.563 of 1999 of the Sub Court, Ernakulam. The suit was one for declaration that Ext A1 sale deed is sham and void. The suit was decreed in favour of the plaintiffs (hereinafter referred to as “the vendors”). Defendant No.1 who is the vendee under Ext.A1 (hereinafter referred to as "the purchaser") and Defendant No.2 who is a subsequent assignee under Defendant No.1 (hereinafter referred to as "the assignee") are in appeal. 2. R.F.A. No.138 of 2006 originally filed as A.S. No.365 of 2005 before the District Court, Ernakulam arises from O.S. No.85 of 2003 of the Sub Court, Ernakulam. The suit was one for fixation of boundary and injunction filed by the purchaser and the assignee as plaintiffs. The dismissal of the R.F.A. No.329 of 2005 & R.F.A. No.138 of 2006 -: 2 :- suit is under challenge in the appeal. 3. The property in question having an extent of 53 cents is a portion of larger extent of 65.50 cents which belonged to late Jacob, the predecessor-in-interest of the vendors as per Ext B2 sale deed of the year 1964. It is the case of the vendors that they availed a loan of `50,000/from the purchaser and as insisted by him, Ext A1, a document styled as a sale deed, was executed by the vendors in favour of the purchaser. Exhibit A1 was executed as required by the purchaser. The purchaser had agreed that a re-conveyance deed would be executed on repayment of the loan amount. It is the case of the vendors that Ext A1 was never intended to take effect and was a document executed merely for the sake of it. The vendors seek for a declaration that Ext A1 is sham and void. The purchaser and assignee denied the contention that Ext A1 is a sham document. It was contended that out of the larger extent of 65.50 cents that belonged to the vendors, the purchaser purchased 53 R.F.A. No.329 of 2005 & R.F.A. No.138 of 2006 -: 3 :- cents excluding the residential house as per Ext A1 sale deed for sufficient consideration. The contention of the vendors that Ext.A1 was not intended to take effect and that the transaction between the parties was in fact a loan arrangement, was denied. A portion of the 53 cents covered under Ext A1 was conveyed by the purchaser to the assignee as per Ext B6 sale deed. They prayed for dismissal of the suit. 4. The purchaser and assignee together filed O.S. No.85 of 2003 for fixation of boundary of the property covered under Ext A1=B1 and B6 sale deeds with the remaining property of the vendors. Similar allegations and contentions as urged in the suit for declaration have been raised in this suit also by either sides. 5. After appreciating the evidence, the court below found that Ext A1 is a sham document and was not intended as a sale deed and granted declaration as sought. The suit for fixation of boundary was consequently dismissed. The decree and R.F.A. No.329 of 2005 & R.F.A. No.138 of 2006 -: 4 :- judgment in the suits are under challenge by the purchaser and the assignee. 6. Heard learned Senior Counsel Shri S.Sreekumar for the appellants (purchaser and assignee) and Shri C.P. Saji on behalf of the respondents (vendors). 7. We were taken exhaustively through the pleadings and evidence in the case. In our considered opinion the circumstances enumerated hereunder eloquently speak as to the true nature of the transaction between the parties. (i)Though the consideration for Ext.A1=B1 sale is `50,000/-, as on the date of sale there existed in the property trees worth at least `95,000/-. As evidenced by Ext.A3 commissioner's report which is within a period of 6 months from the date of sale, trees worth `95,000/- were in the property. Going by Ext.A1, trees, the timber value itself worth `95,000/- along with 53 cents of property is sold for `50,000/- !!!. The folly in R.F.A. No.329 of 2005 & R.F.A. No.138 of 2006 -: 5 :- accepting Ext A1 as an outright sale, needs no further elaboration. (ii) Exhibit A1=B1 sale deed was executed on 11.06.1996. As evidenced by Ext B4, mutation was effected only on 09.12.1996 which is just before execution of Ext B6 sale deed in favour of the assignee. If Ext A1 was an out right sale, there is no reason why steps were not taken to effect mutation of the property in favour of purchaser for a period of six months. No explanation is forthcoming in the said regard. Mutation is effected on 09.12.1996 and as per Ext B6 sale deed, on the very next day a portion of the property is conveyed by him to assignee. (iii)There is no demarcating boundary or boundary marks or stones at the site to indicate severance of the property under Ext A1 and separate enjoyment of the same from the remaining property of the vendors. The vendors took out a commission, whose report R.F.A. No.329 of 2005 & R.F.A. No.138 of 2006 -: 6 :- was marked as Ext A2. The report indicates that there are no identifying marks at the site to demarcate or identify the property alleged to have been conveyed under Ext A1 document. The absence of any signs of demarcation in spite of Ext A1 points to enjoyment of the entire property as a single holding. This in turn indicates absence of delivery of possession under Ext A1 document. (iv)Though the purchaser contends that a retired village officer had surveyed the property at the time of Ext A1 sale, he has not been examined. The non-examination of the surveyor assumes significance in view of the fact that there is no indication of any boundary demarcation for the property said to have been conveyed under Ext A1 from the remaining property. (v)The act of the purchaser and the assignee in having cut and removed trees from the property, the value of which is assessed by the Commissioner at `95,000/-, thus committing waste in the property immediately after the filing of the suit by the R.F.A. No.329 of 2005 & R.F.A. No.138 of 2006 -: 7 :- vendors. The act of cutting and removing trees of the worth mentioned assumes significance in view of the admission of the purchaser as DW1 to the effect that the property contained yielding bud rubber and other valuable trees. The suit challenging Ext A1 was filed by the vendors on 19.12.1996 as an indigent O.P. numbered as O.P (Ind.) No.74 of 1996. A commissioner inspected the property on 21.12.1996 and submitted Ext A2 report. It is immediately thereafter that the trees in the property were cut and removed. The said act of causing damage is revealed by Ext A3 commission report dated 08.01.1997. When admittedly yielding rubber trees were in the property, no reason is suggested for the undue haste in cutting and removing the same along with other valuable trees, especially in the wake of the suit in respect of the property filed by the vendor. (vi)The purchaser as DW1 claims that the sale consideration for Ext A1 was `3 lakhs whereas the R.F.A. No.329 of 2005 & R.F.A. No.138 of 2006 -: 8 :- consideration as stated in Ext A1 is `50,000/-. Not only that there is total absence of evidence for payment of `3 lakhs but it also shows that value of the property covered under Ext A1 is not `50,000/- but it is worth times more. Therefore, it could not be accepted that under Ext A1 the property was sold to purchaser for a meagre amount of `50,000/-. (vii)According to the Purchaser portion of the property was conveyed by him to the assignee as per Ext B6 sale deed for a lesser consideration than the consideration for Ext A1. In the absence of any compelling circumstances, it is against normal conduct to have conveyed the property purchased under Ext A1 for a lesser price. No such circumstance necessitating an immediate conveyance for a lesser price has been brought out or is suggested even. (viii)Possession of the original prior title deed with the purchaser. R.F.A. No.329 of 2005 & R.F.A. No.138 of 2006 -: 9 :- The original title deed of the entire property, Ext A2, is produced by the purchaser from his possession as having been handed over at the time of Ext A1 in spite of the fact that 15 cents of property remained with the vendors. In the normal course of events, it is improbable that the original prior title deed is handed over to the purchaser of a portion of a larger extent of property when the remaining part of the property is retained by the vendors. This is so because insofar as the remaining extent retained by the vendors is concerned, that document is the title deed unlike that for the purchaser whose title deed is Ext B1. 8. All the above circumstances cumulatively indicate that as contended by the vendors the document was one never intended to take effect as a sale. 9. Are the vendors entitled in law to raise a contention that Ext A1 was not intended as a sale but was executed as insisted upon by the purchaser as a condition for advancing the loan? The learned R.F.A. No.329 of 2005 & R.F.A. No.138 of 2006 -: 10 :- Senior Counsel would contend that going by the case of the vendors the document was executed as security for the loan transaction on an agreement to re-convey the property on discharge of the loan amount, which in law would amount to a mortgage by conditional sale, provided the required legal elements are satisfied. The learned Senior Counsel took us through Section 58(c) of the Transfer of Property Act and the proviso thereto to contend that unless the clause of re-conveyance is incorporated in the very document itself the transaction would not amount to a mortgage by conditional sale. Therefore, according to him, Ext A1 could only be an out right sale. To substantiate his contention, the learned Senior Counsel also referred to the judgments of the Apex Court in Mushir Mohammed khan (dead) by Lrs v Sajeda Bano (Smt) and Others ([2000] 3 SCC 536) and Bishwanath Prasad Singh v Rajendra Prasad and Another ([2006] 4 SCC 432). 10. Section 58(c) of the TP Act is reproduced R.F.A. No.329 of 2005 & R.F.A. No.138 of 2006 -: 11 :- ## hereunder for easy reference. “Mortgage by conditional sale.- Where, the mortgagor ostensibly sells the mortgaged property- on condition that on default of payment of the mortgage-money on a certain date the sale shall become absolute or on condition that on such payment being made the sale shall become void, or on condition that on such payment being made the buyer shall transfer the property to the seller, the transaction is called mortgage by conditional sale and the mortgagee a mortgagee by conditional sale: [provided that no such transaction shall be deemed to be a mortgage, unless the condition is embodied in the document which effects or purports to effect the sale.] 11. As is evident from the very section, to constitute a mortgage by conditional sale, the clause for re-conveyance of the property to the R.F.A. No.329 of 2005 & R.F.A. No.138 of 2006 -: 12 :- seller should be incorporated in the document itself. The Apex Court in the cited decisions has held that a clause for re-conveyance of the property in the case of a mortgage by conditional sale must be evidenced by the very document itself. In those cases the question considered was whether a particular document was sale or mortgage, the contention being that the documents represented a mortgage by conditional sale with a provision for re-conveyance. The learned Senior Counsel would contend that going by the case of the vendors Ext A1 would have amounted to a mortgage by conditional sale provided the alleged agreement for re-conveyance was incorporated as part of terms of Ext A1. According to him since the said condition does not find a place in Ext A1 it could not be a mortgage by conditional sale but amounts to an outright sale. Referring to the judgment of the Apex Court in Bishwanath Prasad Singh's case (supra) he would contend that in view of Section 92 of the Evidence Act the vendors are not entitled to R.F.A. No.329 of 2005 & R.F.A. No.138 of 2006 **==> picture [40 x 9] intentionally omitted <==** adduce any evidence at variance of the terms of Ext A1 sale and contend that Ext A1 is not a sale deed. Here it needs to be noticed that the vendors do not contend that Ext. A1 represents a mortgage by conditional sale or a sale. They do not rely upon the document at all. It is the case of the vendors that Ext A1 is a nominal document which was never intended to be acted upon and that it was never acted upon. According to the vendors the transaction was one entirely different from that recorded in Ext A1. Exhibit A1 never operated. The vendors do not rely upon the document and attempt to prove a transaction at variance from the terms as incorporated therein, but it is the contention that the document in fact was a fictitious one which was never intended to operate or to affect any interest in immovable property. The bar imposed under Section 92 of the Indian Evidence Act which prohibits any party from adducing evidence varying the terms of a contract operates only when the party to the document relies upon the document. R.F.A. No.329 of 2005 & R.F.A. No.138 of 2006 -: 14 :- Here, as noticed supra, it is the contention of the vendors that Ext A1 is a nominal document not intended to take effect and has not taken effect. A similar issue came up for consideration before the Apex Court in Smt.Gangabai v Smt.chhabubai (AIR 1982 SC 20) wherein the contention was that for availing a loan of `2,000/- the borrower was required to execute a nominal document of sale along with a rent note. The contention was that the document was never intended to be acted upon, that the possession of the property continued with the borrower/executant. The Apex Court, referring to the decision of the Privy Council in Tyagaraja Mudaliyar v Vedathanni (AIR 1936 PC 70) held thus: “The next contention on behalf of the appellant is that sub-sec. (1) of S.92 of the Evidence Act bars the respondent from contending that there was no sale and, it is submitted, the respondent should not have been permitted to lead parol evidence in support of the contention. ......... R.F.A. No.329 of 2005 & R.F.A. No.138 of 2006 -: 15 :- It is clear to us that the bar imposed by sub-sec.(1) of S.92 applies only when a party seeks to rely upon the document embodying the terms of the transaction. In that event, the law declares that the nature and intent of the transaction must be gathered from the terms of the document itself and no evidence of any oral agreement or statement can be admitted as between the parties to such document for the purpose of contradicting or modifying its terms. The sub-section is not attracted when the case of a party is that the transaction recorded in the document was never intended to be acted upon at all between the parties and that the document is a sham. Such a question arises when the party asserts that there was a different transaction altogether and what is recorded in the document was intended to be of no consequence whatever. For that purpose oral evidence is admissible to show that the document executed was never intended to operate as an agreement but that some other R.F.A. No.329 of 2005 & R.F.A. No.138 of 2006 -: 16 :- agreement altogether, not recorded in the document, was entered into between the parties. Tyagaraja Mudaliyar v. Vedathanni, AIR 1936 PC 70. The trial court was right in permitting the respondent to lead parol evidence in support of her plea that the sale deed dated January 7, 1953 was a sham document and never intended to be acted upon.” 12. Ishwar Dass Jain (dead) through LRs v Sohan Lal (dead) by LRs (2000 (1) SCC 434) was a case where it was pleaded that a mortgage deed though executed was a sham document not intended to be acted upon and that it was executed only as a collateral security. Relying on Smt.Gangabai v Smt.chhabubai (AIR 1982 SC 20) it was observed thus, “in spite of Section 92(1) of the Evidence Act, it is permissible for a party to a deed to contend that the deed was not intended to be acted upon but was only a sham document. The bar arises only when the document is relied upon and its terms are sought to be varied and contradicted.” The ## R.F.A. No.329 of 2005 & R.F.A. No.138 of 2006 -: 17 :- court said, “But the question is whether on the facts of this case, the reason given by the defendant in his evidence for treating the mortgage as a sham document, can be accepted.” On the facts it was found that the plea is not proved. 13. Therefore, as held by the Apex Court, a party is entitled to show that the transaction as recorded in the document was never intended to be acted upon and that the document is a sham one. In the case at hand also, the vendors do not rely upon Ext A1 and attempt to vary its terms, but it is the contention that Ext A1 was never intended to be acted upon. According to the vendors the real transaction between the parties was some other agreement not recorded in the document. In Hathika v Padmanabhan (1994 [1] KLT 345) a learned Single Judge of this Court held that the bar of Section 92 of the Evidence Act applies when a party seeks to rely upon the document embodying the terms of the transaction and that the bar is not applicable when it is the case of the party that the transaction R.F.A. No.329 of 2005 & R.F.A. No.138 of 2006 -: 18 :- recorded in the document was never intended to be acted upon and that the document is a sham one. We do not think that it is necessary to multiply authorities. It is open to a party to contend that a document executed by him purporting to be a sale deed is only a fictitious or a nominal transaction and that it was never intended to be acted upon and that the transaction between the parties was an entirely different one. 14. The circumstances as indicated by us in the earlier part of the judgment do not leave any room for doubt that the transaction between the parties is not the one as evidenced by Ext A1 sale deed. Exhibit A1 was nominal and was never intended to be acted upon as a sale deed and was not so acted upon. 15. Admittedly, the vendors have borrowed an amount of `50,000/- from the purchaser. They are bound to repay the said amount with interest. The learned counsel appearing for the respondents/vendors submitted that the vendors are R.F.A. No.329 of 2005 & R.F.A. No.138 of 2006 -: 19 :- willing to repay the said amount with interest. In Aliyar v Raju. v. Vayalat (2016 (2) KLT 656) a Bench of this Court observed, “It is needless to restate that the courts exercising power under the Act (Specific Relief Act, 1963) have both legal and equitable jurisdictions. It is common knowledge that in our country we do not have Courts of Equity and Law Courts separately. The Act confers equitable jurisdiction on the Civil Courts for granting specific relief.” Since the relief of declaration is discretionary and flows out of the equity jurisdiction under the Specific Relief Act and in view of the submission of the learned counsel for the vendors, we deem it appropriate that while granting a decree for declaration in favour of the vendors they should be made liable to repay the borrowed amount of `50,000/- with interest thereon. In the nature and circumstances of the case, we are of the opinion that grant of interest at the rate of 12% per annum from the date of Ext A1, viz., 11.06.1996 is reasonable. R.F.A. No.329 of 2005 & R.F.A. No.138 of 2006 -: 20 :- 16. In the result, while confirming the decree and judgment of the court below, it is directed that the vendors shall pay to the purchaser(1[st] plaintiff in O.S.85 of 2003) an amount of Rs.50,000/- with interest at the rate of 12% per annum from 11.06.1996 till date of payment within a period of three months from this date. In default in payment as above, the said amount with interest as above shall be a charge on the plaint schedule property and shall be recoverable in execution, personally and against the property. The appeals are disposed of as above. No costs. Sd/- ## **V. CHITAMBARESH, JUDGE.** Sd/- **SATHISH NINAN, JUDGE.** vsv /true copy/ ## P.S. to Judge