Jayanti Kamath v. Saseendra Shenoy and Others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.SOMARAJAN** **THURSDAY, THE 7[TH] DAY OF JULY 2022 / 16TH ASHADHA, 1944** **AS NO. 220 OF 2003** **AGAINST THE ORDER/JUDGMENT IN OS 449/1995 OF PRINCIPAL SUB COURT,NORTH** ## **PARAVUR** ## **APPELLANT IN AS-PLAINTIFF IN OS:** ## **1 JAYANTHI KAMATH** **W/O V.G.KAMATH FORMERLY RESIDING AT JAYA MAHAL, MAMANGALAM NOW RESIDING AT JAYA MAHAL, THEVERKAD, VARAPUZHA** **BY ADVS. SRI.S.V.BALAKRISHNA IYER (SR.) SRI.K.JAYAKUMAR SRI.P.B.KRISHNAN** ## **RESPONDENTS IN AS- DEFEDANTS 2 TO 7 IN OS:** - **1 SASEENDRA SHENOY EMPLOYED IN HINDUSTAN INSECTICIDES LIMITED, ELOOR, RESIDING AT KALAPARAMBATHU HOUSE, AMBADIMALA, THIRUVAMKULAM** ## ***2 RADHAKRISHNA PAI (DIED) S/O MADHAVA PAI, KALAPRAMBATHU HOUSE, KADUNGAMANGALAM, KANAYANNUR TALUK** *** IT IS RECORDED THAT THE RESPONDENTS 4 AND 5 IN THIS APPEAL IS RECORDED AS THE LEGAL REPRESENTATIVE OF DECEASED R2 AS PER ORDER DATED 29.06.2022 IN I.A.NO.5/2022.** ## ****3 PRABHAKARA PAI S/O MADHAVA PAI, KALAPARAMBATHU HOUSE, KADUNGAMANGALAM, KANAYANNUR TALUK.** **** THE NAME OF THE 3RD RESPONDENT IS DELETED FROM THE PARTY ARRAY OF THE APPEAL AT THE RISK OF THE APPELLANT AS PER ORDER DATED 09.06.2022 IN IA NO.3/2022.** ## **4 MAYA DEVI D/O MADHAVA PAI, RESIDING AT THERUVILAPARAMBU, T.D ROAD, ERNAKULAM.** A.S. No.220 of 2003 2 **5 LATHA DEVI D/O MADHAVA PAI, RESIDING AT EDAVAZHIKKAL HOUSE, KADUNGAMANGALAM KARA, KANAYANNUR TALUK. 6 ELSY W/O RAMESH, THARAKANTHARA HOUSE, THEVARKAD KARA, VARAPUZHA. R2 TO R5 BY ADVS. SRI.P.R.VENKATESH SRI.P.R.RAJA R6 BY ADV. SRI.JOJO.A.V. SRI.A.X.VARGHESE** **SRI.K.R.VINOD FOR CLAIM PETITIONER IN IA.NO.4036/2010.** **THIS APPEAL SUITS HAVING COME UP FOR HEARING ON 07.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** A.S. No.220 of 2003 3 ## **JUDGMENT** ## **Dated this the 07[th] day of July, 2022** A suit for specific performance of contract for sale and a suit for injunction simplicitor were tried jointly in which the trial court decreed in part the suit for specific performance in O.S.No.449/1995 directing return of the advance amount with interest @ 12% per annum. The suit - O.S.No.313/2001 was also decreed restraining the defendant permanently from disturbing plaintiff's possession and enjoyment and not to alter and destroy the boundaries. The present appeal is against the decree granted in O.S.No.449/1995 by the plaintiff so far as it is against her. 2. The execution of Ext.A1 agreement for sale is not under dispute. What is agreed into under Ext.A1 agreement is to sell an extent of 41 cents of property at the rate of Rs.5,700/- per cent. An advance amount of Rs.50,000/- was ## A.S. No.220 of 2003 4 received at the initial stage of execution of Ext.A1 agreement and subsequently another amount of Rs.50,000/-was also received on 2/11/1994. The third payment, which comes to Rs.5,000/- was disputed and denied by the defendant. The trial court found that there is no satisfactory evidence to prove the payment of Rs.5,000/- as on 19/12/1994 and also found that what is received by way of advance out of sale consideration comes to only Rs.1,00,000/-. In fact, there is no dispute with respect to the receipt of the said amount on two occasions. 3. The specific performance of the contract was rejected by the trial court mainly on the reason that the available extent as located by the Commissioner in Ext.C1(a) plan comes to only 28.640 cents. It is located as plot No.6 after excluding and locating plot No.1 to 5 which were the properties earlier alienated out of large extent of one acre. The trial court found that since the plaintiff insisted for execution of sale deed in respect of 41 cents as PW1, it A.S. No.220 of 2003 5 cannot be said that she was ready and willing to purchase the available extent of 28.640 cents. A grave mistake has been committed by the trial court. What is agreed under Ext.A1 agreement is to sell the registered holding of 41 cents to the plaintiff. It is further agreed into by the parties that the sale consideration would be at the rate of Rs.5700/- per cent. That means, the plaintiff is bound to execute registered sale deed in respect of the entire registered holding of 41 cents. But the defendant is liable to pay sale consideration for the available extent which comes to 28.640 cents, though the registered holding comes to 41 cents. There may be reduction of extent or excess land with the registered holding. The excess land would go along with the registered holding unless the contrary is agreed into by the parties specifically. There may not be any difference in the legal position when there is a reduction in extent. In both the cases, sale deed has to be executed for the entire registered holding A.S. No.220 of 2003 6 irrespective of whether there is any excess or reduction in extent. When the parties have agreed to pay sale consideration per cent, they are bound to pay sale consideration based on the actual measurement and hence, the insistence made by the plaintiff while in the box demanding execution of sale deed for the entire registered holding which comes to 41 cents which is in tune with what is agreed into by the parties in Ext.A1 is perfectly legal. The first appellate court has committed a very serious error in entering into a finding that the said insistence would take away the readiness on the part of the plaintiff in getting the property transferred since the actual extent available comes to 28.640 cents. The basic principle governing the area thus has been overlooked by the trial court. In short, the defendant is bound to convey the entire registered holding though there is reduction in extent in measurement in accordance with Ext.A1 agreement. Hence, the rejection of specific performance of the contract on the said A.S. No.220 of 2003 7 ground cannot be sustained. 4. In the instant case, the plaintiff was put in possession of the property in furtherance of the contract for sale and she had constructed structures over the property by drawing electric and water connection. The first defendant later on had given Ext.B1 letter dated 7/6/1995 giving consent for drawing electric and water connection. It is just after the period of contract. This would show that the parties have kept the agreement for sale binding even after the expiry of period of performance as stated in the agreement. Ext.A7 notice was issued after the expiry of the period and Ext.A8 reply was issued on 26/06/1995. As discussed earlier, after parting with the available extent of property out of the registered holding, the owner of the property cannot retain any part of registered holding and as such, the registered owner/the defendant is liable to execute the sale deed with respect to the entire registered holding of 41 cents with the liability of payment of sale A.S. No.220 of 2003 8 consideration for the available extent at the rate of Rs.5,700/- per cent, that is, for an area of 28.640 cents. The market value of the property has been enhanced by the passage of time and Ext.A1 agreement is of the year 1994. Now almost 28 years have elapsed. Hence, by relying on the decision rendered by this court in **Anappath Parakkattu Vasudevakurup and Others** **v. C.Haridasan (2021 (6) KHC 656)** followed by the decision of the Apex Court in **Her Highness Maharani Shantidevi P.Gaikwad v. Savjibhai Haribhai Patel and Others (2001 KHC 1100 = AIR** **2001 SC 1462)** , a conditional decree of specific performance can be granted, for which, by taking into consideration the place wherein the property is located and the submission made across the Bar, an amount of Rs.3,00,000/- (Rupees Three Lakhs) can be ordered in addition to the balance sale consideration for getting specific performance of the contract. Accordingly, the appeal is allowed. The decree and judgment of the trial court are set A.S. No.220 of 2003 9 aside and granted a conditional decree of specific performance of contract with the additional burden of Rs.3,00,000/- (Rupees Three lakhs) payable to the defendant without the liability of interest for a period of three months from today and thereafter with the liability of interest @ 6% per annum till the date of deposit/payment, in addition to the balance sale consideration within a period of five months from today, failing which, the appeal will stand dismissed confirming the decree and judgment of the trial court. The plaintiff has to exercise her option for specific performance with the additional liability as stated above within a period of five months from today. No costs. ## **Sd/-** ## **P. SOMARAJAN** ## **JUDGE** SKP/7-7