Indusekharan (deceased) and others v. Gopinath Menon

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR** **FRIDAY, THE 20TH DAY OF NOVEMBER 2020 / 29TH KARTHIKA, 1942** **RFA.No.651 OF 2007** **AGAINST THE JUDGMENT AND DECREE DATED 11.04.2007 IN O.S.NO. 161/2006 OF PRINCIPAL SUB COURT,IRINJALAKUDA** ## **APPELLANT/PLAINTIFF:** - **1 INDUSEKHARAN(DIED), S/O.PADINJAREVAKKAYIL KAMALAKSHI AMMA, KONATHUKUNNU DESOM, THEKUMKARA VILLAGE MUKUNDAPURAM TALUK.** **ADDITIONAL APPELLANTS 2 AND 3 IMPLEADED** - **2 GAUTAMAN. K, AGED 37 YEARS,** **S/O.LATE INDUSEKHARAN, NARAYANA NIVAS, KONATHUKUNNU DESOM, THEKKUMKARA VILLAGE, MUKUNDAPURAM TALUK, PIN 680 123, THRISSUR DISTRICT.** - **3 GAYATHRI INDUSEKHARAN, D/O.LATE INDUSEKHARAN, NARAYANA NIVAS, KONATHUKUNNU DESOM, THEKKUMKARA VILLAGE, MUKUNDAPURAM TALUK, PIN 680 123, THRISSUR DISTRICT.** **LEGAL HEIRS OF DECEASED SOLE APPELLANT ARE IMPLEADED AS ADDITIONAL APPELLANTS 2 AND 3 AS PER ORDER DATED 16/10/2020 IN IA 2/2020.** **BY ADVS.SRI.O.D.SIVADAS SMT.S.ANJUSHA SRI.K.S.BHARATHAN SRI.B.C.MENON** R.F.A.No.651/2007 -:2:- ## **RESPONDENT/DEFENDANT:** **GOPINATHA MENON, S/O. MANAMMEL KUMARI AMMA, THEKUMKARA VILLAGE, KONATHUKUNNU DESOM, MUKUNDAPURAM TALUK.** **BY ADV. SRI.K.G.BALASUBRAMANIAN** **THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 18-11-2020, THE COURT ON 20-11-2020 DELIVERED THE FOLLOWING:** R.F.A.No.651/2007 ## -:3:- Dated this the 20[th] day of November,2020 ## J U D G M E N T This indigent appeal was filed by plaintiff in O.S.No.161/2006 before the Principal Sub Court, Irinjalakuda. After the appeal was filed, the sole appellant died and was substituted by additional appellants who are his two children. 2. The suit for declaring two sale deeds executed by the plaintiff in favour of the sole defendant and prayer for consequential reconveyance of plaint schedule property on acceptance of loan amount with interest, was dismissed by the court below. Being aggrieved by the judgment and decree, this appeal is preferred. 3. Plaintiff is the owner of plaint schedule 2.11 Acres of land with a residential building which was outstanding on mortgage in favour of Irinjalakuda Town Co-operative Bank, pursuant to a loan having been availed of by the plaintiff. He was not in a position to clear of the loan arrears and therefore, approached the defendant for finance to R.F.A.No.651/2007 -:4:- discharge the debt with the bank. 4. The case of the plaintiff is that the defendant offered to help provided the plaintiff transferred plaint schedule property to the defendant by executing sale deed and further undertook to reconvey the property upon the amount borrowed being returned with interest. Pursuant to the alleged oral agreement dated 19.11.2003, the plaintiff executed Exts.A1 and A2 sale deeds dated 20.11.2003 and 19.11.2003 in favour of the defendant and on 04.12.2003, the defendant cleared of the loan arrears due to the Co-operative Bank and released the mortgage as per Ext.B2 deed. 5. Plaintiff's case is that on 21.02.2006, he offered to discharge the debt in favour of the defendant and requested to reconvey the property, which the defendant refused setting up untenable contentions. It is contended that in spite of execution of Exts.A1 and A2, plaintiff is still in possession and taking income from the property. No sale consideration was received by him, despite the receipt of consideration having been recorded in the documents. Therefore, according to plaintiff, the R.F.A.No.651/2007 -:5:- documents have not taken effect and are void. The suit was, therefore, filed for declaring the sale deeds as void and for a decree directing defendant to reconvey the property on acceptance of Rs.5,62,092/- being the amount borrowed from the defendant with interest. 6. The defendant contended that he purchased the plaint schedule property after paying lawful consideration and became absolute owner of the property. He denied having agreed to reconvey the property or having advanced any money as loan. According him, he discharged the liability of plaintiff with the bank, which was adjusted with sale consideration. He claimed to be in possession of the property and paying tax also. He contended Exts.A1 and A2 sale deeds to be valid and having taken effect and not liable to be declared as void. Plaintiff is alleged to have executed a rent deed in the name of the defendant on 01.01.2004 for a monthly rent of Rs.500/- for 11 months in which he accepted the defendant as the landlord of the building. 7. The court below took up two material issues R.F.A.No.651/2007 -:6:- for consideration as to whether Exts.A1 and A2 sale deeds have taken effect and pursuant to alleged oral agreement dated 19.11.2003, defendant was liable to reconvey the plaint schedule property. 8. Plaintiff examined himself as PW1 and four other witnesses as PWs2 to 5 and tendered Exts.A1 to A7 in evidence. The defendant examined DWs.1 to 4, including himself on his side and tendered Exts.B1 to B7 in evidence. In addition to these items of evidence, Ext.C1 report prepared by PW5, Advocate Commissioner was also admitted in evidence. 9. The court below on a consideration of entire evidence answered the above two issues against the plaintiff and held that he failed to prove the alleged oral agreement dated 19.11.2003. It was also held that Exts.A1 and A2 documents came into force and they are pucca sale deeds transferring absolute title and possession to the defendant. All the reliefs sought in the plaint were refused and the impugned judgment and decree were passed. 10. I heard the learned counsel for the appellants and respondent. R.F.A.No.651/2007 ## -:7:- 11. The two points which arise in this appeal are the same as those considered by the court below. - i Whether the plaintiff proved the alleged oral agreement dated 19.11.2003 for reconveyance of plaint schedule property? - ii Whether Exts.A1 and A2 sale deeds in the name of defendant have taken effect? 12. Exts.A1 and A2 sale deeds are not mortgages for conditional sale. No reference is also made anywhere in the documents as to existence of any sort of oral agreement for reconveyance of the property contemporaneously made on the date of the deeds. Plaintiff relies on the oral evidence of himself and PW2, the attesting witness in both deeds to prove that an oral agreement for reconveyance of property was made between parties on 19.11.2003. No other evidence is available in this respect. 13. PW2, Raveendran is a headload worker. According to PW1, the agreement was made at the shop of the defendant in the presence of PW2 as well as one Sasi, who is a Village Officer. Sri. Sasi was not cited and examined as witness for no good reasons explained. PW2 did not prove existence of R.F.A.No.651/2007 ## -:8:- any oral agreement, except stating that the sale deeds were executed as 'viswasatheer'. This is not in any way enough. He has not explained what did he mean by 'viswasatheer'. When he was cross-examined, he said that the deeds were executed as usual sale deeds and he did not find anything unusual with the recitals in the deeds. The evidence of PW2 will not help the plaintiff to prove that an agreement for reconveyance of the property was made on 19.11.2003. Nothing is evident from the testimony of PW2 as to whether he knew that the plaintiff owed any debt to Co-operative Bank, Irinjalakuda or of the defendant having undertaken to discharge the liability on taking plaint schedule property as security. The terms of agreement are not forthcoming in the evidence of PW2. What is available is only the interested testimony of PW1, which cannot be swallowed without pinch of salt. The court below, in my view, rightly found that the alleged agreement for reconveyance was not proved. 14. However, I notice that there is illegality in the finding of the court below, since it took the view that plaintiff was precluded from adducing R.F.A.No.651/2007 ## -:9:- evidence as to existence of oral agreement as it would contravene Section 92 of the Indian Evidence Act, 1872(for short, 'the Act') which prohibits evidence contradicting terms of documents from being received. This finding is wrong inasmuch as plaintiff did not make any attempt to adduce evidence varying or contradicting the terms in Exts.A1 and A2. His contention as well as the evidence adduced is to the effect that the sale deeds did not come into effect. This is permissible under law and Section 92 of the Act does not place any bar against reception of such evidence. This legal position could be discerned from two decisions of this Court reported in Moosa v. Moideen [2001 KHC 72] and George and Another v. Annakutty and Others [2017(4) KHC 742]. 15. The next question is whether Exts.A1 and A2 sale deeds have taken effect or are otherwise void under law being sham documents. This contention too was not proved by any evidence or circumstances. When the oral agreement for reconveyance is not proved, there is no probability of the second contention also being true. PW1 said that he is R.F.A.No.651/2007 ## -:10:- still in possession of the suit property and residing in Door No.17/358 in the property. He examined two witnesses to prove that he is managing the property and taking income. PW4, a close neighbour and a coconut climber said that he used to pluck coconuts from the property on behalf of PW1 for wages. PW3, a timber merchant said that plaintiff sold him two standing tress for value. 16. On the other hand, defendant examined DW2, who is also a coconut climber and his evidence shows that he was plucking coconuts for the defendant. DW3 is a manual labourer engaged by the defendant, who said that he was doing manual work in the plaint schedule property for which he received wages from the defendant. DW4 is another witness, who also said that defendant used to manage the plaint schedule property. 17. On examining the rival versions given by the witnesses, I find that there is little probability in the contention of plaintiff that he is in possession of the property. Ext.B3 rent deed dated 01.01.2004 executed in the name of the plaintiff was proved by the defendant which shows R.F.A.No.651/2007 ## -:11:- that after execution of the sale deeds and the discharge of loan arrears with the bank, defendant let out the residential building in the property for plaintiff's residence on monthly rent of Rs.500/for a period of 11 months. This document proves that plaintiff accepted the defendant as the landlord of the building. This is a strong piece of evidence which proves that Exts.A1 and A2 deeds have come into force. Thus the oral evidence tendered by PWs1 to 3, does not, therefore have normal reliability in the light of the contrary evidence of possession adduced by the defendant. 18. It is true that PW1 did not admit Ext.B3 rent deed. But at the same time, it is pertinent to note that he did not deny the signature in Ext.B3. When signature is proved, the burden is upon plaintiff to bring out the circumstance under which document came to be executed. This burden has not been discharged. Exts.A1 and A2 clearly show that the title as well as possession of the property was transferred in favour of the defendant on the respective dates of execution. When existence of oral agreement for reconveyance is not R.F.A.No.651/2007 ## -:12:- satisfactorily proved, it is difficult to hold that the plaintiff has a probable case. Same is the view taken by the court below also. On re-appreciating the evidence, I do not find any reason to interfere with the findings entered into by the court below. 19. The learned counsel for the respondent rightly pointed that even assuming that there was any oral agreement for reconveyance also, there is nothing in the pleadings or evidence to indicate that plaintiff was ready and willing to perform his part of the contract. It is pertinent to note that alleged demand for reconveyance was made after two years. No suit notice was also sent expressing plaintiff's intention to discharge the alleged loan liability and take back the property in his name. Further, the capacity of the plaintiff to pay back the amount was not proved. These are additional reasons which do not justify plaintiff's demand for decree for reconveyance. The judgment and decree of the court below are, therefore, confirmed. In the result, appeal fails and it is dismissed. Appellant will pay costs also. The decree drafted shall provide for the liability of appellant to pay R.F.A.No.651/2007 ## -:13:- court fee leviable under law. All pending interlocutory applications will stand closed. Sd/- ## T.V.ANILKUMAR,JUDGE ## DST //True copy/ P.A.To Judge