Gopinathan v. Anitha and Others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE SHIRCY V.** **TUESDAY ,THE 05TH DAY OF MARCH 2019 / 14TH PHALGUNA, 1940** **RFA.No. 689 of 2014** **AGAINST THE JUDGMENT AND DECREE IN OS 343/2012 of SUB COURT, KARUNAGAPPALLY DATED 17-07-2014** ## **APPELLANT/PLAINTIFF:** **GOPINATHAN AGED 65 YEARS S/O.KUNJUPILLAI, MANGALASSERRIL HOUSE, PAVITHRESHWARAM VILLAGE, KOTTARAKKARA TALUK.** **BY ADVS. SRI.M.P.RAMNATH SEI.M.VARGHESE VARGHESE SMT.S.SANDHYA SRI.BEPIN PAUL SRI.K.J.SEBASTIAN SRI.P.RAJESH (KOTTAKKAL) SRI.S.DEEPAK SRI.SHALU VARGHESE** ## **RESPONDENTS/DEFNDANTS:** **1 SMT.ANITHA AGED 45 YEARS W/O.LATE RANJENDRA PRASAD, NOW RESIDING AT LINE BUILDING NO.3 (BEHIND KRISHNAN MUTHALI'S HOUSE), AMRUTHAKULAM RESIDENTIAL ASSOCIATION MUNDAKKAL EAST, KOLLAM-691001 FROM VALLITHUNDIL VEEDU, THAZHAM MURI, PAVITHRESHWARAM VILLAGE, KOTTARAKKARA TALUK.** **2 ANOOP PRASAD AGED 22 YEARS S/O.LATE RAJENDRA PRASAD, RESIDING AT -DO-. 3 ANEESH KUMAR @ ANEESH PRASAD AGED 24 YEARS S/O.LATE RAJENDRA PRASAD, RESIDING AT -DO-.** **BY ADVS. SMT.K.G.BINDU SMT.T.S.MAYA (THIYADIL) THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 05.03.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** RFA.No. 689 of 2014 2 ## **JUDGMENT** This appeal arises out of the judgment and decree dated 17[th] July, 2014 passed by the Sub Court, Karunagappally in O.S 343 of 2012 filed by the plaintiff for specific performance of contract and prohibitory injunction. The respondents are the defendants before the court below. The parties are referred to as the plaintiff and defendants. 2. The facts of the case in a nutshell are as follows: Anitha, the first defendant was the wife of one Rajendra Prasad. The defendants 2 and 3 are the children of Rajendra Prasad and the first defendant. Sri.Rajendra Prasad expired on 26.06.2006.The plaint schedule property having a total extent of 79.5 cents with a residential building comprised in Re-survey.No.69/18 of Pavithreswaram village, in Kottarakkara Taluk originally owned by the first defendant and her deceased husband Sri.Rajendra Prasad. Before his death on 20.06.06 he along with the first defendant entered into an agreement for sale of the plaint schedule property with the plaintiff for a sale RFA.No. 689 of 2014 3 consideration of Rs.15,000/- per cent and fixing Rs.1 lakh as the value of the building situated therein. The second defendant was the witness to the agreement. 3. It is the case of the plaintiff that the property was mortgaged before the Co-operative Urban bank Ltd, Kottarakkara and as per the understanding between the parties the loan has to be cleared by the plaintiff. So on the previous day of the execution of the sale agreement the entire amount outstanding in the name of late Rajendra Prasad and the first defendant in the Co-operative Urban Bank Ltd, Kottarakkara was cleared off by the plaintiff and the original documents were taken from the bank by the first defendant and handed over the same to the plaintiff on the date of execution of the agreement. Though, the plaintiff was ready with the balance sale consideration, the document was not executed. So he sent a lawyer notice on 29.8.2006 calling upon the first defendant to execute the document in his favour by accepting the balance sale consideration. But the notice sent by him was returned with an endorsement as 'house closed'. Thereafter, the plaintiff directly approached the defendants and requested to perform the sale agreement. But they have failed to RFA.No. 689 of 2014 4 execute the sale deed. Thereafter, another notice was issued on 9.10.2006 and the first defendant received the same and she had admitted the execution of the agreement but raised certain false and frivolous contentions against the plaintiff. As the plaintiff was always ready and willing to perform his part of the contract by paying the balance sale consideration, he had approached the court below with the suit for specific performance of contract. He had also sought for a decree for injunction to restrain the defendants from cutting and removing the valuable trees standing in the property. 4. The defendants 1 and 2 had filed a joint written statement and a counter claim to direct the plaintiff to return the original title deed of the property to the defendants. In the written statement it was specifically contended that on 20.06.2006 her husband Rajendra Prasad was in death bed and he expired on 26.06.2006.One Udayabhanu a relative of Rajendra Prasad was the person behind the execution of the agreement and the suit. The agreement was fraudulently created for him. In fact, for the treatment of Rajendra Prasad they were in need of money. She was facing acute financial crisis and so she had RFA.No. 689 of 2014 5 approached Udayabhanu for financial assistance and he promised to provide the same. But he demanded security for the amount to be advanced as loan. The plaint schedule property was actually owned by the first defendant and late Rajendra Prasad. The property was mortgaged before the Urban Co-operative bank and the outstanding amount was Rs.1 lakh. Udayabhanu was aware of the loan transaction and without the consent of the first defendant and Rajendra Prasad he cleared off the loan by remitting an amount of Rs.1 lakh and received the original title deed deposited before the bank and thereafter, he demanded the first defendant to sign in the agreement of sale. The second defendant objected the same, and he evaded from signing the agreement and the first defendant also refused to sign the agreement but the sale of agreement was fraudulently created for Udayabhanu and at that stage as she was in a acute need of money for the treatment of Rajendra Prasad she was amenable for the demand made by Udayabhanu. Rajendra Prassad was not able to affix his signature as he was completely laid down and somehow Udayabhanu obtained his thumb impression in the document and that was ignoring the objection raised by the first RFA.No. 689 of 2014 6 and second defendants and that too without the knowledge and consent of Rajendra Prasad. Actually, at the time of execution of the agreement the property would fetch a market value of Rs.30,000/- per cent. But Udayabhanu had cheated and committed fraud on the defendants and thus the document was created. In fact no advance amount was accepted by the defendants on the basis of the agreement and the agreement is not supported by consideration and hence they are not liable to execute the sale deed for the plaint schedule property in favour of the plaintiff. They had no intention to sell the property, was the stand taken by the first defendant. 5. The third defendant who is the second son of Rajendra Prasad and the first defendant though filed a separate written statement raised similar contentions. 6. Before the court below PW1 to PW4 were examined and Exts.A1 to A13 were marked. For the defendants the first defendant was examined as DW1 and Ext.B1 was marked. The court after evaluation of the entire evidence dismissed the suit with cost of D2 and D3. The counter claim was also dismissed with costs. Feeling aggrieved by the judgment and decree the RFA.No. 689 of 2014 7 plaintiff has come up with this appeal. 7. Before going into the details of the case, it is pertinent to note that though the defendants have raised a counter claim to direct the plaintiff to return the original title deed of the plaint schedule property, by a decree of mandatory injunction, the said relief was declined by the court below, but no cross appeal was filed challenging the said decision of the court. 8. The plaint schedule property having an extent of 79.5 cents and a building is situated in Pavithreswaram Village. The plaintiff is a retired Government Employee who is a native of Pavithreswaram. According to him after his retirement from service, he wanted to construct a residential house and to settle at Pavithreswaram Village where his brother and family are residing and he is not having any other property of his own. He was having acquaintance with Udayabhanu who was examined as PW2 as he was also working at Trivandrum. As co passengers he came to know about the intention of the first defendant and her husband late Rajendra Prasad to sell the plaint schedule property and thus Ext.A1 was executed. Ext.B1 would reveal that Rajendra Prasad was suffering from serious illness and huge RFA.No. 689 of 2014 8 money was required for his treatment. To secure money late Rajendra Prasad and the first defendant had availed a loan from Co-operative Urban Bank Limited, Kottarakara by depositing their title deed. So that loan was outstanding in their name. When the plaintiff got information that the plaint schedule property was available for purchase he had contacted the party by visiting the house of late Rajendraprasad. As PW1 the plaintiff had deposed that he retired from service in the year 1998 and though his brother expired his wife and children are residing at Pavithreswaram village which is comparatively a remote area. His family house was also at Pavithreswaram and so his intention was to spent the rest of his life at his native place at Pavithreswaram village. When he got information from Udayabhanu that the plaint schedule property was available for sale he approached the first defendant and her husband and thereafter, on the understanding between the parties, he agreed to purchase the property for a total sale consideration of Rs.15,000/- per cent as Rajendra Prasad was adamant that he would sell the property only for Rs.15,000/- per cent and the residential building for Rs.1 lakh. So, they have decided to execute the agreement, but as a loan RFA.No. 689 of 2014 9 was outstanding in the name of Rajendraprasad and the first defendant in the bank, he agreed to settle the loan account by paying the advance amount in the bank. So on the previous day itself ie; on 19.6.2006 the advance was paid by him at Kollam where the defendants and Rajendra Pasad were residing and with the advance amount of Rs.1 lakh the first defendant as well Rajendra Prasad went to the Co-operative bank, Kottarakkara and remitted the amount which was due and substantial reduction to the interest was also given by the bank as the amount was paid in lump. Thereafter, the first defendant submitted an application on the very same day for return of the original documents deposited and the bank released the same and the 1[st] defendant received the same and then handed over to the plaintiff and thus he is in possession of the title deed. Thereafter on 20.06.2006 Ext.A1 agreement was executed and that is the definite case of the plaintiff in the plaint as well before the court below. Though there was an attempt on the side of the defendants to show that the amount of Rs.1 lakh was remitted by Sri.Udayabhanu without the consent or knowledge of the first defendant and late Rajendra Prasad, there was absolutely no RFA.No. 689 of 2014 10 evidence to substantiate the same. It is pertinent to note that Ext.A6 is the second notice issued by the plaintiff dated 9.10.2006. In page No.2 of Ext.A6, it was specifically stated by the plaintiff that the advance amount received from the plaintiff on the previous day of the execution of the sale agreement was remitted in the Co-operative Urban Bank Limited Kottarakara for clearing the dues in the name of Rajendra Prasad and the 1[st] defendant and the original title deed released from the bank was also handed over to the plaintiff in pursuance of the execution of the sale agreement . 9. Ext.A9 is the reply sent on behalf of the defendants to the letter dated 9.10.2006 (A6). In the reply letter it was stated by the 1[st] defendant that since huge amounts were spent for the treatment of late Rajendra Pasad, request was made to Udayabhanu for financial assistance to continue with the treatment. Immediately, Sri.Udayabhanu informed that the property would fetch good price and he could find out buyers for the property and as he was found as a trust worthy person and a close relative of her husband, she took his words on its face value and requested him to arrange buyers for the property. RFA.No. 689 of 2014 11 10. On a reading of the above reply notice, it could be seen that the contention taken by the defendants in the written statement was quite contrary to their stand in the reply notice. A further reading of the reply notice would show that the amount of Rs.1 lakh received towards the advance amount of this transaction had also been made mention in the reply notice. Of course, it was stated that Sri.Udayabhanu subsequently in a tactful and unlawful manner had obtained the title deeds of the property from her and he had thus cheated the defendants and thereby the plaintiff happened to be in possession of the title deed of the property. DW1 even deposed that Sri.Udayabhanu without the consent or knowledge of the defendants deposited the amount of Rs.1 lakh and obtained the title deed, but they could not substantiate the same by adducing reliable and sufficient evidence. 11. Sri. Udayabhanu who is alleged to have committed fraud and cheated the defendants was examined as PW2. But he deposed that he signed Ext.A1 as a witness. He affixed his signature in the document at the residence of the first defendant. According to him a bit of land owned by the sister of late RFA.No. 689 of 2014 12 Rajendra Prasad was lying adjacent to the plaint schedule property and she executed Ext.A10 agreement agreeing to execute sale deed for the same in favour of the plaintiff. In cross examination it was specifically stated that he happened to be a witness to the document only as per the desire of late Rajendra Prasad who was bed ridden for a pretty long time and he used to visit him quite often and at that point of time he had requested him to find out suitable purchasers for sale of the property and while so he had contacted the plaintiff who happened to be a person having acquaintance with him and thus the transaction had been effected and Ext.A1 agreement was executed. He had also deposed before the court that the advance payment to Ext.A1 sale agreement was Rs.1 lakh and after payment of the advance amount the execution of the agreement had taken effect. Of course, he did not depose that he had proceeded with the plaintiff and the defendants to Co-operative bank to settle the account. But it has come out in evidence that he was the person who had contacted the plaintiff as requested by Rajendra Prasad for sale of the property and thus the document was executed and the advance amount was paid by the plaintiff for the sale RFA.No. 689 of 2014 13 agreement. Both these witnesses were thoroughly cross examined by the learned counsel for the defendants. In absence of reliable, strong and convincing evidence the contention that he had directly remitted the amount of Rs.1 lakh before the bank with the intention to cheat late Rajendra Prasad and the first defendant and got the title deed from the bank and then stealthily handed over it to the plaintiff cannot be accepted. Even though some variations were brought out in his deposition that will not indicate that Ext.A1 was not executed with the intention to sell the plaint schedule property and the defendants had no intention to alienate the property at any point of time. It is well settled that when fraud is alleged the burden is upon the person who alleges it. But on the basis of insufficient materials such an inference is not possible or justifiable. 12. On the other hand, the plaintiff in his attempt to prove his case that Ext.A1 was executed for the sale of the plaint schedule property, had examined PW3 who prepared Ext.A1 sale agreement. She deposed that she is a scribe by profession and is residing in the very same village of the defendants and late Rajendra Prasad was personally known to her. She has also RFA.No. 689 of 2014 14 deposed that Ext.A10 was prepared by her and the property was lying near to the plaint schedule. Of course she could not depose about the exact date of preparation of Ext.A1 agreement but she had stated that she was convinced with the facts and then only she prepared the documents. She had prepared the documents at her office itself and it was after convincing with the title deeds of the properties. So from her deposition it is clear that she had prepared the disputed document after perusing the prior title deeds of the property, but of course she did not depose that she had seen the witnesses or the parties affixing their signature in the document. But nothing had been brought out in evidence to show that this document was not prepared by her and she had deliberately deposed falsehood before the court to support the case of the plaintiff. It had also come out in evidence that Ext.A10 was not prepared in a stamp paper and it was prepared as a draft with the understanding that the original will be executed in a stamp paper at a later stage as agreed to by the parties. It appears from the evidence of PW3 that she had given a candid disclosure of material facts that transpired on the particular day of execution of the agreement. RFA.No. 689 of 2014 15 13. So also, PW4 is the other witness examined by the plaintiff to prove his case that the property was measured so as to convince with the extent of the property in terms of Ext.A1 agreement. He is a retired Head Surveyor and he deposed that he had measured the property and prepared Ext.A11 plan on the basis of the measurement effected by him. According to him Sri. Udayabanu (PW2) had requested him to measure out the property and he was very much present when the measurement was effected by him and the plaintiff was also present at the time of measurement of the property. So it has come out from the evidence of this witness that Ext.A11 plan was prepared as requested by PW2 in the presence of the plaintiff and some others, but he had no case that he had gone through the title deed or the agreement before measuring the property but it was measured as per the lie and nature of the property. As mentioned earlier though the defendants have raised a contention that fraud had been played by Udayabhanu and thus Ext.A1 was executed there was absolutely no convincing evidence to substantiate the case of the defendants that any kind of fraud had been played by Sri.Udayabhanu or by the plaintiff so as to RFA.No. 689 of 2014 16 execute the suit document. In other words, the core issue to be answered is whether the suit agreement on the basis of which relief of specific performance has been claimed, could be treated as a genuine one executed between the parties and if so a decree could be granted. As referred above, the advance amount of Rs.1 lakh was handed over by the plaintiff on the previous day of the execution of the document, ie; on 19.6.2006 and the said amount was remitted in the bank and the title deeds were released to the first defendant and she had handed over the same to the plaintiff and thus the plaintiff is holding possession of the same. But, as evidence is lacking to conclude that Ext.A1 is vitiated by fraud or misrepresentation it is held as a valid and genuine document . 14. In short, the evidence on record makes it explicitly clear that Ext.A1 is a genuine document executed by the first defendant along with her husband late Rajendra Prasad in favour of the plaintiff for execution of the sale deed for transferring the plaint schedule property in favour of the plaintiff. 15. Now the question to be looked into is whether the plaintiff is entitled to get a decree for specific performance of the RFA.No. 689 of 2014 17 entire property as per Section 19 of the Specific Relief Act. Admittedly, Rajendra Prasad expired on 26.06.2006. His legal heirs are the first defendant and her two children who are the defendants 2 and 3. The second defendant is an attestor to Ext.A1 sale agreement. The property actually belonged to the first defendant and late Rajendra Prasad. So the first defendant is having half fractional right over the property and on the death of Rajendra Prasad his property devolved upon all the defendants who are his legal heirs. So she had acquired right over the other half share of the property also as the legal heir of deceased Rajendra Prasad. 16. It is well settled that a decree for specific performance is purely a discretionary one and it can be granted only if the plaintiff who approached the court seeking such a decree is able to prove the court that he was always ready and willing to perform his part of contract. His readiness and willingness to perform his part of the contract and had with him funds to pay the balance sale consideration is a condition precedent. Here, it is to be noted that the defendants have denied the execution of the document and they have not raised a contention that the RFA.No. 689 of 2014 18 plaintiff was not having sufficient funds with him to pay the sale consideration. On the other hand, the plaintiff who was a government employee, retired from service, might be having sufficient funds so as to pay the balance sale consideration. His readiness and willingness were not under serious challenge and that was evident from the nature of the contentions raised. Still it is revealed from the records that there is compliance of the mandatory requirement of Section 16 (c) of the Specific Relief Act. 17. So when the evidence is evaluated meticulously it could be seen that the plaintiff was ready and willing to perform his part of the contract and he was having sufficient funds with him to pay off the balance sale consideration and he was ready and willing to perform his obligations. 18. It is well settled that granting of a relief for specific performance is purely a discretionary one and if undue advantage is caused to the plaintiff and hardship to the defendants if the document is executed in favour of the plaintiff the court can decline to grant such a relief. According to the learned counsel for the defendants it is the sole property of the RFA.No. 689 of 2014 19 defendants and they are not having any other property for their residence. Rajendra Prasad is no more and the defendants 2 and 3 are also pursuing their studies. 19. **In Prakash Chandra v. Narayanan [2012 KHC 4239]** it was held that in a case of specific performance, hardship is a good defence provided such defence is taken by the defendant and evidence in support of such defence is brought on record. Here the facts would reveal that the defendants have no other property for their residence. The learned counsel for the defendants had invited my attention to the decision taken by this Court in **Kochammu v. Kumaran [2017(4)KLT SN 56 (C No.65)** wherein it was held that when court is inclined to grant decree for specific performance, taking into account of the escalation of price in urban areas so fast and after lapse of time granting a decree for specific performance for a smaller amount agreed between the parties will cause undue loss to the defendant, then, court has power to enhance the amount payable as sale consideration and re-fix the amount payable for such transaction. 20. But it is evident from the records that the defendants RFA.No. 689 of 2014 20 could not adduce any evidence to substantiate the contention that there is an escalation of price in the locality and the price fixed in Ext.A1 is only a meagre amount. Ext.A1 was of the year 2006. On the other hand Ext.A12 of the year 2006 would show that the centage value of Ext.A12 is Rs.20,000/- per cent for an extent of 8 cents of land. For the property involved in Ext.A13 of the year 2009 , the centage value was only Rs.8500/- per cent but, here the value fixed was Rs.15,000/- per cent. No evidence was adduced by the defendants so as to indicate that reasonable price was not fixed by the parties and the property would fetch more value than that. In fact the property involved in Ext.A12 is only a bit of land having 8 cents. It is an undisputed fact that where a small extent of property is involved normally the price would be high than a larger extent of land. Here the property involved is 79.5 cents and so it is not possible to conclude that the value fixed as Rs.15,000/- per cent is not reasonable or fair. But as mentioned earlier, the defendants have no property other than the plaint schedule property. Rajendra Prasad who was employed had also expired while in service and when considered their financial background and the fact that RFA.No. 689 of 2014 21 Rajendra Prasad was cremated in this property, the argument raised by the learned counsel for the defendants that the parties were having some sentimental attachment towards property cannot be ignored by this Court. 21. Therefore, taking into consideration of the entire aspects involved in this case especially the fact that the first defendant was a co-owner of the property involved, I think that a decree for specific performance can be granted in favour of the plaintiff only for the share which the first defendant has in the property. So the plaintiff is entitled to get the half share owned by the first defendant out of the entire property as well the share inherited by her as the legal heir of deceased Rajendra Prasad. So in total she is liable to execute the sale deed in favour of the plaintiff, her half share plus the share she inherit as the legal heir of Rajendra Prasad over the property after adjusting the advance amount of Rs.1 lakh received. It has come out in evidence that the defendants have no property other than the property involved in the sale agreement as such for their residential purpose. In view of the same the portion of property where the building is situated has to be retained by the defendants. RFA.No. 689 of 2014 22 22. In the result, the judgment and decree under challenge are set aside and a decree for specific performance is granted as follows. The 1[st] defendant has to execute the sale deed for her half right over the entire property as the owner of the property as well the 1/3[rd] right (in total 4/6 shares) inherited by her as the legal heir of her deceased husband in favour of the plaintiff on receipt of the balance sale consideration. The balance sale consideration will be paid within four months from today to the 1[st] respondent. If the 1[st] respondent fails to execute the sale deed, such amount will be deposited in the trial court which will ensure the execution of the sale deed as per this judgment and decree . Accordingly, the appeal is disposed of. The parties shall bear their respective costs. smm **Sd/SHIRCY V. JUDGE**