Henry Theophilus v. Daniel Joseph Theophilus and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE V.CHITAMBARESH & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN MONDAY, THE 19TH DAY OF DECEMBER 2016/28TH AGRAHAYANA, 1938 AS.No.258 of 1996 ----------------------AGAINST THE ORDER/JUDGMENT IN OS 171/1991 of PRINCIPAL SUB COURT,KOLLAM DATED 05-02-1996 APPELLANT : PLAINTIFF : -------------------- HENRY THEOPHILUS, S/O.BASTIN JOHN THEOPHILUS, RESIDING AT M.C.882, MUNDAKKAL EAST WARD, AMRUTHUKULAM THOPPE, BUNGLOW, MUNDACKAL VILLAGE, KOLLAM. BY ADV. SRI.B.KRISHNA MANI, SRI.V.PREMCHAND RESPONDENTS : DEFENDANTS :- -------------------------- |1.|DANIEL JOSEPH THEOPHILUS,|* DIED| |---|---|---| ||S/O.BASTIN JOHN THEOPHILUS,|| ||RESIDING AT JUNIOR REST HOUSE,|| ||INDIRA VIHAR, SEEPATH ROAD,|| ||BILASPUR 495001.|| |2.|ELIZABATH THEOPHILUS,|* DIED| ||D/O.BASTIN JOHN THEOPHILUS,|| ||RESIDING AT NORTHERN VARANDA ROOM|| ||IN AMRITHUKULAM THOPE,|| ||BUNGLOW, MUNDAKKAL EAST WARD,|| ||MUNDAKKAL VILLAGE.|| |3.|B.WILLINGTON,|| ||RESIDING AT -DO- -DO-|* DIED| IT IS RECORDED THAT, 2[nd] RESPONDENT DIED AND APPELLANT AND 1[st] RESPONDENT ARE HER LEGAL HEIRS AS PER ORDER DTD.4.3.2013 IN I.A.344/10. AS.No.258 of 1996 ## ADDITIONAL RESPONDENTS IMPLEADED ADDL.R4 BABY THAMARASSERY, THAMARASSERY HOUSE, KAVANADU, KOLLAM. ADDL.R5 MICHALE THAMARASSERY, T.C.24, CHITHRA NAGAR, OPP.PSC OFFICE, THIRUVANANTHAPURAM. ADDL.R6 ALEX THAMARASSERY, THAMARASSERY HOUSE, KAVANADU, KOLLAM. LEAL HEIRS OF DECEASED 3[rd] RESPONDENT ARE IMPLEADED AS ADDITIONAL RESPONDENTS 4 TO 6 AS PER ORDER DTD.4.3.2013 IN I.A.344/10. THE DEATH OF 1[st] RESPONDENT RECORDED AND IMPLEADMENT OF LEGAL HEIRS NOT NECESSARY AS PER ORDER DTD.27.3.2014 IN I.A.806/14. BY ADV. SRI.GEORGE VARGHESE BY ADV. SRI.K.SUBASHCHANDRA BOSE THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 5-10-2016, THE COURT ON 19-12-2016 DELIVERED THE FOLLOWING: ## **V. CHITAMBARESH & ANIL K. NARENDRAN, JJ. -------------------------------------------------------A.S.No.258 of 1996 -------------------------------------------------------Dated this the 19[th] day of December, 2016** ## **JUDGMENT** ## **Anil K. Narendran, J.** The appellant is the plaintiff in O.S.No.171/1991 on the file of the Subordinate Judge's Court, Kollam, a suit for specific performance of a contract for sale of the plaint schedule property on the basis of an oral agreement, by directing the defendants to execute a sale deed in respect of the said property in favour of the plaintiff for a consideration of 1,00,000/- or such other₹ amount as may be fixed by the mediators/court and permit the plaintiff to deposit the said amount in court. In the plaint, the plaintiff has also sought for various other reliefs. 2. The reliefs sought for in the suit were opposed by the 1[st] defendant by filing a written statement, which was followed by a separate written statement by the 2[nd] and 3[rd] defendants. 3. On the side of the plaintiff PWs.1 to 3 were examined and Exts.A1 to A22 were marked. On the side of the defendants DWs.1 and 2 were examined and Exts.B1 to B24 were marked. A.S.No.258 of 1996 2 4. After considering the pleadings and materials on record, the trial court dismissed the suit holding that, there is no concluded contract between the plaintiff and the 1[st] defendant for the sale of the plaint schedule property and as such, the plaintiff is not entitled to a decree for specific performance. The trial court has also found that the plaintiff is not entitled to a mandatory injunction to secure his possession over the plaint schedule property by directing the 2[nd] and 3[rd] defendants to vacate from the building situated therein. In the absence of any documentary evidence, the trial court has also rejected the case of the plaintiff that he had spent 12,000/- for conducting suits on behalf of the₹ 1[st] defendant. 5. Challenging the judgment and decree of the trial court, the appellant is before this Court in this appeal. During the pendency of this appeal defendants 1 to 3 died. The death of the 1[st] and 2[nd] defendants were recorded and the legal heirs of the deceased 3[rd] defendant were impleaded as additional respondents 4 to 6. 6. We heard the arguments of the learned counsel for the appellant/plaintiff. A.S.No.258 of 1996 3 7. The core issue that arises for consideration in this appeal is as to whether there was any concluded contract between the plaintiff and the 1[st] defendant for the sale of the plaint schedule property, on the basis of an oral agreement as pleaded in the plaint, in order to seek specific performance of that contract. 8. Going by the plaint averments, the plaint schedule property belonged to the 1[st] defendant by virtue of Ext.A1 partition deed No.5267/1959 dated 17.9.1959, subject to right of enjoyment of the properties including the building situated thereon by Saramma Theophilus (mother of the plaintiff and defendants 1 and 2) during her life time, who was residing in that building. The 2[nd] defendant was employed as a Teacher, who was residing in a hostel till her retirement on 31.3.1985. During vacations, the 2[nd] defendant along with her husband (the 3[rd] defendant) used to reside along with her mother, in a room on the northern veranda of the building situated in the plaint schedule property known as 'Amrithakulamthoppu Bunglow'. The veranda portion of the building was allotted to the 1[st] defendant in Ext.A1 partition deed, who was employed at Bangalore, who A.S.No.258 of 1996 4 later settled in North India. The mother was in possession and enjoyment of the properties including the building situated thereon till her death, i.e., till 25.6.1986. 9. According to the plaintiff, there was an assembly of the relatives on the '7[th] day' of the demise of his mother, i.e., on 1.7.1986, at 'Amrithakulamthoppu Bunglow'. The 2[nd] and 3[rd] defendants did not participate in that assembly. On that day, the 1[st] defendant made an offer that, if the plaintiff wants to take the portion of the building he will construct a new building and that offer was accepted by the plaintiff. Thus an oral agreement was arrived at between the plaintiff and the 1[st] defendant for the sale of 42.976 cents in Sy.No.485A together with the portion of the building allotted to the 1[st] defendant in the A schedule of Ext.A1 partition deed, which was agreed to be sold to the plaintiff for a total consideration of 1,00,000/-, within one year of the 2₹ nd and 3[rd] defendants vacating or being evicted from the premises. The remaining properties in A schedule of Ext.A1 partition deed will be sold and the plaintiff has to find out a suitable purchaser. 10. The 1[st] defendant executed Ext.A5 power of attorney dated 25.8.1987 authorising Edward Theophilus to manage the A.S.No.258 of 1996 5 property and the plaintiff was authorised to initiate and conduct suits and other legal proceedings, the expenses of which are to be met by the plaintiff. According to the plaintiff, in case any delay beyond two years is caused in getting a verdict from the court, the plaintiff and the 1[st] defendant are to pay and receive consideration as settled by mediators, namely, Earnest J. Theophilus and B.J. Jesmus. After the death of Edward Theophilus, the 1[st] defendant executed Ext.A6 power of attorney dated 18.6.1988 authorising the plaintiff to manage the property and the building situated thereon and also to represent him in the legal proceedings relating to the said property. Thus, according to the plaintiff, there was a concluded contract on 1.7.1986 between the plaintiff and the 1[st] defendant for the sale of the plaint schedule property. Though the 1[st] defendant wrote a letter to the 2[nd] defendant to vacate the premises in question, the 2[nd] and 3[rd] defendants failed to vacate. The plaintiff caused to issue a lawyer notice to the 2[nd] defendant and thereafter filed the suit seeking various reliefs. 11. The 1[st] defendant filed written statement contending that the 2[nd] and 3[rd] defendants are residing in the building A.S.No.258 of 1996 6 situated in the plaint schedule property and they purchased the same as per Ext.A18 sale deed No.2256/1990 dated 19.7.1990 and that, only a portion of the sale consideration remains to be paid for which there is provision in the sale deed. The 1[st] defendant denied the alleged oral agreement on 1.7.1986 between the plaintiff and the 1[st] defendant. According to the 1[st] defendant, the plaintiff was not in good terms with the 2[nd] and 3[rd] defendants and he instigated the 1[st] defendant to file O.S.No.211/1987 before the Sub Court, Kollam for evicting them. The 2[nd] and 3[rd] defendants have also filed O.S.No.274/1987 seeking a decree for specific performance. While those suits were pending the 1[st] defendant agreed with the 2[nd] and 3[rd] defendants to settle the disputes and on execution of Ext.A18 sale deed in favour of the 2[nd] and 3[rd] defendants both the suits were struck off from the file. The plaintiff and late Edward were parties to O.S.No.211/1987 as power of attorney holders of the 1[st] defendant and the said power of attorney was later revoked. Therefore, 1[st] defendant has not committed any breach of contract and that, Ext.A18 sale deed executed in the year 1990 in favour of the 2[nd] and 3[rd] defendants is valid and binding on all. As A.S.No.258 of 1996 7 such the plaintiff is not entitled for a decree of specific performance. 12. The 2[nd] and 3[rd] defendants filed written statement contending that they purchased the plaint schedule property vide Ext.A18 sale deed dated 19.7.1990. They paid the part consideration of 30,000/- to the 1₹ st defendant on various dates, on the basis of the offer made by him to sell his property. The balance sale consideration was ₹70,000/-. There was no concluded contract between the plaintiff and the 1[st] defendant. During the pendency of O.S.Nos.211/1987 and 284/1987 the 1[st] defendant executed Ext.A18 sale deed after receiving an amount of 1,50,000/- as consideration. Therefore, the 2₹ nd and 3rd defendants contended that the plaintiff is not entitled to a decree as prayed for. 13. As we have already noticed, the plaintiff is relying on an oral contract with the 1[st] defendant for the sale of the plaint schedule property, which according to the plaintiff was concluded on 1.7.1986. The plaint schedule property is having an extent of 42.976 cents situated in Sy.No.485A. As per Ext.A1 partition deed the 1[st] defendant obtained 97.6 cents of land. Ext.A2 is a A.S.No.258 of 1996 8 letter written in August, 1986 by the 1[st] defendant to the 2[nd] defendant, which would show that the 2[nd] and 3[rd] defendants are residing in the building in question with the permission of Saramma Theophilus. By Ext.A2, the 1[st] defendant informed the 2[nd] defendant that he requires the said building for his personal occupation. Ext.A3 is another letter dated 26.12.1986 issued by the 1[st] defendant to the 2[nd] defendant in which also he has expressed his desire to occupy the said building. Therefore, if there was an oral agreement between the plaintiff and the 1[st] defendant on 1.7.1986 regarding sale of the plaint schedule property, the same would have been mentioned in Exts.A2 and A3 letters. 14. In Ext.A4 letter dated 30.1.1987 of the 1[st] defendant, the plaintiff was asked to take steps to issue legal notice to the 2[nd] and 3[rd] defendants after consulting Edward. By Ext.A5 power of attorney, the 1[st] defendant authorised the plaintiff to conduct cases in respect of the plaint schedule property and Edward was authorised to manage the said property. Later, by Ext.A6 the plaintiff was authorised to manage the property and the building and also to conduct legal proceedings in relation to the plaint A.S.No.258 of 1996 9 schedule property, on the demise of Edward. The documents on record would show that, the 1[st] defendant filed O.S.No.211/1987 before the Sub Court, Kollam for evicting the 2[nd] and 3[rd] defendants from the property in question and for other reliefs. On the other hand, the 2[nd] and 3[rd] defendants filed O.S.No.274/1987 against the 1[st] defendant seeking a decree for specific performance of the contract for sale in respect of the said property. Ext.B15 is the certified copy of the plaint in O.S.No.211/1987, which would show that the 1[st] defendant filed the said suit before the Sub Court, Kollam through the plaintiff herein and Edward as his power of attorney holders. Ext.B14 is the certified copy of the plaint in O.S.No.274/1987 filed by the 2[nd] and 3[rd] defendants against the 1[st] defendant. 15. During the pendency of O.S.Nos.211/1987 and 274/1987, the matter was settled between the parties and the 1[st] defendant herein executed Ext.A18 sale deed dated 19.7.1990 in respect of the plaint schedule property after receiving consideration. In terms of the said settlement, Ext.B24 compromise petition dated 20.7.1990 was filed in O.S.No.211/1987 and recording the said compromise the said A.S.No.258 of 1996 10 suit was dismissed vide Ext.B16 judgment dated 25.7.1990. A similar compromise petition was filed in O.S.No.274/1987 and the said suit was also dismissed vide Ext.B13 judgment, recording the said compromise. 16. In **Ouseph Varghese v. Joseph Alex (1969 (2) SCC 539)** the Apex Court had occasion to consider the evidentiary value of oral agreements in a suit for specific performance and the nature of proof to establish the same. The Apex Court held that, before a Court can grant a decree for specific performance, the contract pleaded must be a specific one and the same must be established by convincing evidence. Rarely a decree for specific performance is granted on the basis of an agreement supported solely by oral evidence. The finding that there is no clear cut evidence for proving the terms of the oral contract which is alleged to have been entered into between the parties alone is sufficient to non-suit the plaintiff. 17. In **Brij Mohan v. Sugra Beegum (1990 (4) SCC 147)** the Apex Court held that, if the plaintiff comes forward to seek a decree for specific performance of a contract of sale of immovable property on the basis of an oral agreement alone, A.S.No.258 of 1996 11 heavy burden lies on the plaintiff to prove that there was consensus ad idem between the parties for a concluded oral agreement for sale of immovable property. Whether there was such a concluded oral contract or not would be a question of fact to be determined in the facts and circumstances of each individual case. It has to be established by the plaintiff that vital fundamental terms for sale of immovable property were concluded between the parties orally and a written agreement if any to be executed subsequently would only be a formal agreement incorporating such terms which had already been settled and concluded in the oral agreement. 18. In **S.R. Balakrishnan v. Yakoob (2001 (1) KLJ 815)** this Court held that, even though preponderance of probability constitutes sufficient ground for decision in civil proceedings there must be cogent and reliable evidence to base a suit for specific performance on the basis of an oral agreement. The said principle has been reiterated by a Division Bench of this Court in **Ummer v. Kunhava @ Ahammedkutty (2007 (4) KLT 469).** A.S.No.258 of 1996 12 19. In the instant case, the specific case of the 2[nd] and 3[rd] defendants in Ext.B1 reply dated 21.4.1987 to the lawyer notice issued on behalf of the 1[st] defendant was that, they are occupying the plaint schedule property and the building covered by A schedule of Ext.A1 partition deed since 1969, as the 1[st] defendant has agreed to sell the said property to them for a total sale consideration of 1,00,000/-. Out of the said amount, the 1₹ st defendant has already received 30,000/- as part consideration,₹ agreeing to execute the sale deed once he gets possession of the said property after the death of their mother Saramma Theophilus. Though the plaintiff would rely on various letters sent by the 1[st] defendant in support of his plea regarding the oral agreement with the 1[st] defendant for the sale of the plaint schedule property, such documents and the oral evidence of Pws.1 to 3 are not at all sufficient to draw an inference that there was a consensus ad idem between the plaintiff and the 1[st] defendant for a concluded oral agreement for the sale of the plaint schedule property for a consideration of 1,00,000/-. ₹ There is no clear cut evidence for proving the terms of the oral contract which is alleged to have been entered into between the plaintiff A.S.No.258 of 1996 13 and the 1[st] defendant, which alone is sufficient to non-suit the plaintiff. Further, even prior to the filing of the present suit, the dispute relating to the said property was settled between the 1[st] defendant and the 2[nd] and 3[rd] defendants by executing Ext.A18 sale deed dated 19.7.1990. Recording the compromise so entered, O.S.Nos.211/1987 and 274/1987 were dismissed by Exts.B16 and B13 judgments. In the present suit filed in the year 1991, the plaintiff has not chosen to challenge Ext.A18 sale deed dated 19.7.1990 executed by the 1[st] defendant in favour of the 2[nd] and 3[rd] defendants, in respect of the plaint schedule property. In that view of the matter, we find no valid grounds to interfere with reasoning of the trial court in declining the relief of specific performance and also the mandatory injunction sought for by the plaintiff to secure possession over the plaint schedule property. 20. The plaintiff claimed a sum of 12,000/- towards the₹ amount spent for conducting cases on behalf of the 1[st] defendant. The trial court rejected the said claim in the absence of any document to show that the plaintiff had spent 12,000/- for₹ conducting such cases. In the absence of any reliable materials, we find no valid grounds to interfere with the said finding of the A.S.No.258 of 1996 14 trial court. In the result, this appeal fails and the same is accordingly dismissed. No order as to costs. Sd/- ## **V.CHITAMBARESH, JUDGE** Sd/- **ANIL K.NARENDRAN, JUDGE** skj True copy P.A to Judge