KASTHURBHAI and DEEPA v. SURESH, NOUSHAD and DIBEESH

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE A. BADHARUDEEN`** ``` THURSDAY, THE 22[ND] DAY OF FEBRUARY 2024 / 3RD PHALGUNA, 1945 RSA NO. 80 OF 2024 ``` ``` AGAINST THE JUDGMENT AND DECREE IN A.S.NO.6/2022 OF SUB COURT, ``` ## **`CHAVAKKAD`** ``` AGAINST THE JUDGMENT AND DECREE IN O.S.NO.1416/2014 OF MUNSIFF ``` ## **`COURT,CHAVAKKAD`** ## **`APPELLANTS/APPELLANTS/PLAINTIFFS:`** ``` 1KASTHURBHAI AGED 61 YEARS W/O THACHAPPALLY DIVAKARAN, ENGANDIYUR AMSOM, KUNDALLIYUR DESOM, CHAVAKHAD TALUK, PIN - 680616 2DEEPA AGED 42 YEARS D/O THACHAPPALLY DIVAKARAN, ENGANDIYUR AMSOM, KUNDALLIYUR DESOM, CHAVAKHAD TALUK, PIN - 680616 BY ADV PEARSON S.FERNANDEZ ``` ## **`RESPONDENTS/RESPONDENTS/DEFENDANTS:`** ``` 1SURESH AGED 55 YEARS S/O KUTTATTU PAVITHRAN. MULLASSERY VILLAGE AND DESOM, CHAVAKKED TALUK, MULLASSERY P.O ., PIN - 690509 2NOUSHAD AGED 45 YEARS S/O RAYAMMARAKKAR VEETTI IBRAHIM ,NEAR CHETTUVA PULIKADAVU BRIDGE ENGANDIYUR AMSOM,KUNDALLIYUR DESOM,CHAVAKKAD TALUK, PIN - 680616 3DIBEESH AGED 41 YEARS S/O THACHAPPALLY DIVAKARAN ,ENGANDIYUR AMSOM,KUNDAIYUR DESOM,CHAVAKKAD TALUK, PIN - 680615 ``` ``` THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 22.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` RSA NO. 80 OF 2024 2 ``` ## **JUDGMENT** Dated this the 22[nd] day of February, 2024 This Regular Second Appeal has been filed under Section 100 r/w Order XLII Rule 1 of the Code of Civil Procedure, challenging decree and judgment in A.S.No.06/2022, dated 8.9.2023 on the files of the Sub Judge, Chavakkad and also against the decree and judgment in O.S.No.1416/2014, dated 26.3.2022 on the files of the Munsiff Court, Chavakkad. Appellants herein are the plaintiffs in the suit. 2. Heard the learned counsel for the appellants and the learned counsel appearing for the respondents, on admission. 3. I shall refer the parties in this appeal as ‘plaintiffs’ and ‘defendants’, for convenience. 4. The suit originally filed by the plaintiffs, who are the legal heirs of one Divakaran, who obtained the plaint schedule property, on the strength of a partition deed ## **`RSA NO. 80 OF 2024 3`** No.678/1977 of Vatanappally S.R.O. The contention raised by the plaintiffs was that, the 1[st] plaintiff on 30.3.2011, borrowed an amount of Rs.3 Lakh on interest from the 2[nd] defendant for paying off the loan availed by Divakaran from Chettuva Co-operative Bank. Later, the 2[nd] defendant approached the 1[st] plaintiff and requested to execute a mortgage deed as security towards the amount borrowed and promised to re-transfer the property on payment of the amount. Accordingly, document No.906/2011 was executed. According to the plaintiffs, the above document is not a pakka sale deed and the document was executed as a security and therefore, the same is not legally valid. 5. The defendants resisted the suit and contended that, before execution of sale deed, a contract of sale was entered in to between the plaintiffs and the 3[rd] defendant and in consequence of such an agreement, the present sale deed was executed. Accordingly, it was contended that the sale was complete and thereby, the title passed on the vendee. Thus, the reliefs sought for in the suit were opposed. ``` RSA NO. 80 OF 2024 4 ``` 6. The trial court recorded evidence. PW1 to PW4 were examined and Exts.A1 to A3 were marked on the side of the plaintiffs. Exts.B1 to B7 were marked on the side of the defendants. Exts.C1 and C1(a) were also marked. 7. Finally, the trial court found that PW1, Deepa, the 2[nd] plaintiff in the suit, categorically admitted execution of Ext.B1 in the box and accordingly, the prayer for declaring Ext.A2 sale deed as null and void, was declined. 8. Though appeal filed, the appellate court also concurred the said finding and the appeal was dismissed. 9. It is argued by the learned counsel for the plaintiffs/appellants that, though the trial court as well as the appellate court concurrently found against the plaintiffs, in paragraph No.14 of the trial court judgment, the trial court observed that the defendants failed to prove payment of consideration. He also placed a decision of the Apex Court in Civil Appeal Nos.6989-6992 of 2021, in **Kewal Krishnan** vs. **Rajesh Kumar & Ors. Etc.** reported in **[AIR 2022 SC 564]** with reference to paragraph No.15, where the Apex Court held as under: ``` RSA NO. 80 OF 2024 5 ``` _15. Section 54 of the Transfer of Property Act, 1882 (for short "the TP Act") reads thus:_ _**"54. "Sale" defined -** "Sale" is a transfer of ownership in exchange for a price paid or promised or part-paid and part-promised._ _**Sale how made -** Such transfer, in the case of tangible immovable property of the value of one hundred rupees and upwards, or in the case of a reversion or other intangible thing, can be made only by a registered instrument. In the case of tangible immovable property of a value less than one hundred rupees, such transfer may be made either by a registered instrument or by delivery of the property. Delivery of tangible immovable property takes place when the seller places the buyer, or such person as he directs, in possession of the property._ _**Contract for sale -** A contract for the sale of immovable property is a contract that a sale of such property shall take place on terms settled between the parties. It does not, of itself, create any interest in or charge on such property."_ _Hence, a sale of an immovable property has to be for a price. The price may be payable in future. It may be partly paid and the remaining part can be made payable in future. The payment of price is an essential part of a sale covered by section 54 of the TP Act. If a sale deed in respect of an immovable_ ``` RSA NO. 80 OF 2024 6 ``` _property is executed without payment of price and if it does not provide for the payment of price at a future date, it is not a sale at all in the eyes of law. It is of no legal effect. Therefore, such a sale will be void. It will not effect the transfer of the immovable property._ 10. In the above judgment, the Apex Court considered how sale defined under Section 54 of the Transfer of Property Act, 1882, would take effect and the said legal position is well settled. 11. In the instant case, plaintiffs sued to declare Ext.A2 sale deed, admittedly executed by them, as null and void, on raising contention that the same is one executed as security at the time when the 1[st] plaintiff borrowed Rs.3 Lakh from the 2[nd] defendant. The specific case further of the plaintiffs is that, it was agreed to re-transfer the property, on payment of the amount. 12. On appreciation of evidence relied on by the trial court while disarming the contention of the plaintiffs, it is emphatically clear that, PW1 admitted execution of Ext.B1. While challenging the concurrent verdicts against the ## **`RSA NO. 80 OF 2024 7`** plaintiffs, the learned counsel for the plaintiffs argued that there was no passing of consideration for Ext.A2. In this context, it is pertinent to note that passing of consideration is an admitted fact and the plaintiffs’ case itself is that Ext.A2 was executed on repayment of Rs.3 Lakh, so the said contention found to be bereft of any merits. Since the plaintiffs raised a contention that, on payment of Rs.3 Lakh, the 2[nd] defendant agreed to re-transfer the property, the remedy of the plaintiffs was to sue for specific performance of such an agreement, on proof of the same, as per law, within the period of limitation. Now, the said remedy is barred by limitation. It is an admitted fact that, before execution of Ext.A2 sale deed, there was an agreement in between the parties, as admitted by PW1. Therefore, Ext.A2 is a legally executed document and the same conferred title upon the vendee and therefore, the plaintiffs could not succeed. Therefore, there is no substantial question of law arises in this appeal to admit and maintain this appeal. 13. In this case, the learned counsel for the ``` RSA NO. 80 OF 2024 8 ``` appellants/plaintiffs failed to raise any substantial question of law warranting admission of the second appeal. Order XLII Rule 2 provides thus: _**“2. Power of Court to direct that the appeal be heard on the question formulated by it.** -At the time of making an order under rule 11 of Order XLI for the hearing of a second appeal, the Court shall formulate the substantial question of law as required by section 100, and in doing so, the Court may direct that the second appeal be heard on the question so formulated and it shall not be open to the appellant to urge any other ground in the appeal without the leave of the Court, given in accordance with the provision of section 100.”_ 14. Section 100 of the C.P.C. provides that, (1) Save as otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to the High Court, if the High Court is satisfied that the case involves a substantial question of law. (2) An Appeal may lie under this section from an appellate decree passed ex parte. (3) In an appeal under this ``` RSA NO. 80 OF 2024 9 ``` section, the memorandum of appeal shall precisely state the substantial question of law involved in the appeal. (4) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question. (5) The appeal shall be heard on the question so formulated and the respondent shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question. Proviso says that nothing in this sub-section shall be deemed to take away or abridge the power of the Court to hear, for reasons to be recorded, the appeal on any other substantial question of law, not formulated by it, if it is satisfied that the case involves such question. 15. In the decision in **Nazir Mohamed v. J. Kamala and Others** reported in **[2020 KHC 6507 : AIR 2020 SC 4321 : 2020 (10) SCALE 168]** , the Apex Court held that: _The condition precedent for entertaining and deciding a second appeal being the existence of a substantial question of law, whenever a question is framed by the High Court, the High Court will have to show that the question is one of law and not just a question of facts, it also has to show that the question is a_ ``` RSA NO. 80 OF 2024 10 ``` _substantial question of law referring_ _**Kondiba Dagadu Kadam v. Savitribai Sopan Gujar, [(1999) 3 SCC 722]** ._ 16. In a latest decision of the Apex Court in **Government of Kerala v. Joseph** , reported in **[2023 (5) KHC 264 : 2023 (5) KLT 74 SC]** , it was held, after referring **Santosh Hazari v. Purushottam Tiwari, [2001 (3) SCC 179]** (three – Judge Bench) _,_ as under: _For an appeal to be maintainable under Section 100, Code of Civil Procedure ('CPC', for brevity) it must fulfill certain well – established requirements. The primary and most important of them all is that the appeal should pose a substantial question of law. The sort of question that qualifies this criterion has been time and again reiterated by this Court._ 17. The legal position is no more _res-integra_ on the point that in order to admit and maintain a second appeal under Section 100 of the C.P.C., the Court shall formulate substantial question/s of law, and the said procedure is mandatory. Although the phrase 'substantial question of ``` RSA NO. 80 OF 2024 11 ``` law' is not defined in the Code, 'substantial question of law' means; of having substance, essential, real, of sound worth, important or considerable. It is to be understood as something in contradistinction with – technical, of no substance or consequence, or academic merely. However, it is clear that the legislature has chosen not to qualify the scope of “substantial question of law” by suffixing the words “of general importance” as has been done in many other provisions such as S.109 of the Code or Art.133(1)(a) of the Constitution. The substantial question of law on which a second appeal shall be heard need not necessarily be a substantial question of law of general importance. As such, second appeal cannot be decided on equitable grounds and the conditions mentioned in Section 100 read with Order XLII Rule 2 of the C.P.C. must be complied to admit and maintain a second appeal. 18. In view of the above fact, no substantial question of law arises in this matter to be decided by admitting this appeal. In the result, this appeal is found to be meritless and ``` RSA NO. 80 OF 2024 12 ``` the same is dismissed without being admitted. All interlocutory applications pending in this second appeal, stand dismissed. Registry shall inform this matter to the trial court as well as the appellate court, forthwith. Sd/- **A. BADHARUDEEN JUDGE** Bb