K.B. Joseph alias Thankachan v. Rebecca Chacko and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE P.BHAVADASAN** ## **THURSDAY, THE 15TH DECEMBER 2011 / 24TH AGRAHAYANA 1933** **AS.No. 309 of 1996(B)** **-------------------------------** **OS.26/1984 of PRL.SUB COURT,KOTTAYAM** **....................** ## **APPELLANT(S): 5TH DEFENDANT** **-------------------------------------------------** ## **K.B.JOSEPH ALIAS THANKACHAN, MARRY LAND TAILORS, K.K.ROAD, KOTTAYAM.** **BY SRI.V.N.ACHUTHA KURUP, SENIOR ADVOCATE BY ADVS. SRI.B.S.SWATHY KUMAR SRI.T.R.HARIKUMAR SRI.V.G.ARUN SRI.BINDU SREEKUMAR** ## **RESPONDENT(S): PLAINTIFS AND DEFENDANTS 1 TO 3** **-------------------------------------------------------------------------------** **1. MRS. REBECCA CHACKO, WIFE OF CHACKO, RESIDING AT T.C.14/297, EXTRA POLICE ROAD, CANTONMENT, TRIVANDRUM.** **2. P.C.CHACKO, OF DO. DO.** **3. NOBLE M.CHACKO, OF DO. DO.** - ***4. M.R.SUKUMARAN, M/S.K.C.RAMAN AND SONS, K.K.ROAD, THIRUNAKKARA, KOTTAYAM.(DIED)** **5. A.C.SAROJINI, WIFE OF SUKUMARAN OF DO.** - ***6. S.DILIP SUKUMARAN, SON OF DO. DO.(DIED)** - ***ADDL.R7 TO R9 IMPLEADED.** **7. MINI DILIP, W/O. S.DILIP. MELAMOOTTIL HOUSE, ERANJAL KANJIKUZHI P.O., KOTTAYAM.** **tss** ## **AS. NO.309/1996** **8. DEEPA DILIP, D/O. DO. DO.** **9. DEEPIKA DILIP , D/O. DO. DO.** ## ***THE ABOVE ADDL. R7 TO R9 ARE IMPLEADED AS THE LEGAL REPRESENTATIVES OF THE DECEASED R6 VIDE ORDER DTD. 3.8.06 IN IA. 1796/06.** ## ***ADDL. R10 & R11 IMPLEADED** **10. GEETHU VASUDEVAN, KARTHIKA HOUSE, M.L.A. ROAD, KOVOOR, KOZHIKODE.** **11. PUSHPA BOSE, SOUPARNIKA HOUSE, GANDHI NAGAR P.O. ARPUKKARA, KOTTAYAM.** ## *** LEGAL HEIRS OF DECEASED 4TH RESPONDENT ARE IMPLEADED AS ADDL. RESPONDENTS 10 & 11 AS PER ORDER DTD. 5.8.11 IN IA. 1564/09.** **BY SRI.T.KRISHNANUNNI, SENIOR ADVOCATE R1 TO R3 BY ADVS.SRI.P.R.VENKETESH,** **SRI.P.R.RAJA. SRI.G.UNNIKRISHNAN SRI.P.V.RAMESH SHANKAR** **R4 BY ADV. SRI.R.RAMADAS R8 BY ADVS. SMT.S.KARTHIKA, SRI.M.S.UNNIKRISHNAN, SRI.M.R.ANISON, SMT.K.P.GEETHA MANI, SMT.P.A.RINUSA , SRI.P.N.APPUKUTTAN.** **THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 10/11/2011, ALONG WITH AS NO. 369 OF 1996 AND CONNECTED CASES THE COURT ON 15/12/2011 DELIVERED THE FOLLOWING:** **tss** ## **P. BHAVADASAN, J.** - - - - - - - - - - - - - - - - - - - - - - - - - - - A.S. Nos. 309, 369 & 405 of 1996, & 714 & 716 of 2000. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 15th day of December, 2011. ## **JUDGMENT** O.S. 26 of 1984 before the Principal Sub Court, Kottayam was decreed. Defendants 1 to 3 have preferred A.S.369 of 1996. The fifth defendant had preferred A.S.309 of 1996. Defendant No.8 had preferred A.S. 405 of 1996. The assignee from the eleventh defendant had preferred A.S. 714 of 2000. A.S. 716 of 2000 is by a stranger having obtained the leave of this court to file an appeal. The parties and facts are hereinafter referred to as they are available before the court below. Since the fate of most of the appeals is determined on the basis of the decision in A.S. 369 of 1996, that is being treated as the main appeal. 2. The plaint schedule property has an extent of 31.236 cents of land with a building therein. It belonged to the father of the first plaintiff. The second A.S.309/1996 & con.cases. 2 plaintiff and third plaintiff are the children of the first plaintiff. Prof. Mamman, father of the first plaintiff had leased out the building in the property to the father of the first defendant, namely, Raman, for a monthly rent of Rs.170/- per month. Prof. Mamman was stationed at Trivandrum working as a Professor in one of the Colleges at Trivandrum. After the death of the first defendant's father, the first defendant succeeded to the business carried on by his father in the premises. Prof.Mamman's brothers had instituted two suits, O.S.154 of 1958 and 155 of 1958 against Prof. Mamman and others. The plaint schedule property is included in one of those suits. According to the plaintiffs, Prof. Mamman due to his advanced age and health problems found it difficult to conduct the suits and therefore he had executed Ext.B1 sale deed dated 8.1.1963 in favour of the first defendant in respect of 56 cents, of which the plaint schedule is a portion. Though the document recites that sum of Rs.5,000/- was paid on the date of execution of A.S.309/1996 & con.cases. 3 the deed, it was infact not paid and no amount was received by the vendor. No consideration was intended to be passed and Ext.B1 was only a sham document. Even after Ext.B1, the first defendant continued to pay the rent which was due from him as tenant. After the death of Prof. Mamman, the first defendant continued to pay the rent to the first plaintiff. It is alleged in the plaint that on 18.8.1965 the first defendant executed a deed admitting that Ext.B1 is a sham document and he would reconvey the property. In pursuance to that deed, the plaintiffs made several demands to the first defendant to reconvey the property. He either postponed or avoided execution of the deed. According to the plaintiffs, surprisingly the first defendant began to assert title to the suit property. He began to deal with the plaint schedule property as if it belonged to him. He sublet the premises and leased out to defendants 5 to 10. The plaintiffs also learnt that the first defendant had hastily created documents in favour of defendants 2 and 3. The A.S.309/1996 & con.cases. 4 fourth defendant is the sister of the first defendant. He had created a document in her favour also. The first defendant is alleged to have transferred 2.01 cents to the eleventh defendant. The first defendant was incompetent to deal with the property as if it belonged to him and he had no right to execute deeds in respect of the suit property. Those documents are void and are not binding on the plaintiffs. The plaintiffs therefore issued notice to the first defendant, to which a reply was sent by the first defendant containing false recitals. That necessitated the plaintiffs to file the suit for declaration of title and to recover possession of the suit property with mesne profits. 3. In the written statement filed by the defendants 1 to 3, they disputed the allegations in the plaint. The plaint schedule property, which is a part of 56 cents of land known as Vazhiyambalathil originally belonged to Sri.Korah Thommen, the predecessor-in-interest of Prof. Mamman. On the death of Sri.Korah, the property devolved A.S.309/1996 & con.cases. 5 on Prof. Mamman and other legal heirs. In the year 1112 M.E. Sri. Raman, father of the first defendant, took one half of the property with a shed thereon to conduct a workshop. On the death of Sri. Raman, the first defendant continued to run the workshop. The brothers of Prof. Mamman had instituted O.S. Nos. 154 and 155 of 1958 with regard to 56 cents of property and other properties. In O.S. No. 154 of 1958, Sri. Raman, father of the first defendant, was arrayed as the 15[th] defendant. On the death of Sri.Raman, the first defendant was impleaded as additional defendant No.18. The trial court dismissed both the suits. Two appeals were preferred, namely, A.S.652 of 1959 and A.S.679 of 1959 before this court. It is contended that when the appeals came up for hearing, there was a suggestion of settlement. Counsel who was appearing for Prof. Mamman, who was the respondent in the appeal, felt that the offer of settlement is more advantageous, since he felt that the decision in the appeals may go against Prof. Mamman. The offer was that A.S.309/1996 & con.cases. 6 Prof. Mamman would be given 26 cents at Kottayam and he would have to forego his rights over the properties at Mavelikkara. In fact Prof.Mamman was advised by his counsel to accept the offer. At that time Prof. Mamman was not willing to settle the matter and executed Ext.B1 sale deed in favour of the first defendant for a total consideration of Rs.25,000/-. Rs.5,000/- was paid on the date of execution itself and the balance was paid as Rs.7,000/-, Rs.7,000/- and Rs.6000/- over a period of three years. According to the first defendant, he had already paid Rs.20,000/- towards the sale consideration to Prof. Mamman. He would say that Prof. Mamman had cautioned him that in case he died before the entire balance sale consideration was paid, the balance amount shall not be paid in a lumpsum to the first plaintiff, but it was to be paid in small amounts according to the requirements of the first plaintiff. He then makes mention of various payments made to the first plaintiff on different occasions. According to these defendants, eversince Ext.B1 A.S.309/1996 & con.cases. 7 document, the first defendant has been in absolute possession and enjoyment of the property. They disputed that the first defendant had ever executed any document acknowledging that Ext.B1 document was a sham document and agreeing to reconvey the property. Mutation was effected and tax was paid by the first defendant. It was also pointed out that there were kudikidappukars in the property who filed applications under Section 80B in which the first defendant was shown as the owner of the land. The first defendant also transferred a portion of the property. In the final decree in O.S.154 and 155 of 1958, the property was allotted to the first defendant and at the execution stage of the decree he entered into a compromise with the decree holder and purchased one and odd cents from another sharer. The old building standing in the property was demolished and a new structure was put up. The allegations in the plaint to the contrary are false and made with ulterior A.S.309/1996 & con.cases. 8 motive. The plaintiffs have no manner of right over the suit property and they are not entitled to any relief in the suit. 4. In the written statement filed by the fifth defendant, he contended that 3.250 cents of property on the north-western corner of the plaint schedule property belonged to one Vazhiyambalathil Kurian Korah and Prof.Mamman had no rights over the property. It does not form a part of the property leased out to the first defendant. It was acquired by one Puthenpurackal Chachi and she resided therein and carried on business. The predecessor in interest of the fifth defendant obtained assignment of the property from Chachi and Sara. The fifth defendant disputed that he is a subtenant under the first defendant and pointed out that he had independent rights over an extent of 3.250 cents of property. 5. In the written statement filed by defendants 6 to 9, they contended that the plaintiffs had no right over the property and that the premises had been leased out to them A.S.309/1996 & con.cases. 9 by the first defendant. If at all the plaintiffs want to evict them from the property, they have to take recourse to provisions of the Rent Control Act, namely Act 2 of 1965 and a suit for partition is not maintainable. 6. The tenth defendant set up an independent right. The eleventh defendant claimed that he is a bonafide purchaser of 2.1 cents of land from the first defendant and his possession is not liable to be disturbed. 7. On the basis of the above pleadings, issues were raised. The evidence consists of the testimony of P.Ws. 1 to 3 and documents marked as Exts.A1 to A34 from the side of the plaintiffs. The defendants had D.W.1 and 2 examined and Exts.B1 to B77 marked. Exts.C1 and C1(a) are the commission report and the valuation report prepared by the Commissioner. On an appreciation of the evidence in the case, the trial court came to the conclusion that Ext.B1 is a sham deed for the reasons made mention of in paragraph 66 of the trial court judgment. It was also found that A.S.309/1996 & con.cases. 10 defendants 5 to 10 had been inducted by the first defendant and the first defendant is liable to be evicted under Section 11(4) (ii) of the Kerala Buildings (Lease and Rent Control) Act. It was also held that the eleventh defendant had no manner of right over the suit property. On the basis of these findings, a decree was passed in the following terms: _“a) Sale Deed No.78/1963 of Kottayam Addl.SRO is declared a sham and invalid document._ _b) Gift deed Nos.3066 and 3067 of 1981 of Kottayam Addl.SRO 45 are declared invalid._ _c) Sale deed No.3004/83 of Kottayam Addl.SRO is declared invalid._ _d) The title of the plaintiffs to the plaint schedule land is declared._ _e) The plaintiffs are allowed to recover possession of the plaint schedule land from the defendants._ _f) The plaintiffs are allowed to recover from defendants 1 to 3 Rs.6,120/- with interest at 6% per annum from 10.2.1984 till realization._ _g) The plaintiffs are allowed to recover from defendants 1 to 3 compensation at the rate of_ A.S.309/1996 & con.cases. 11 _Rs.5000/- per annum from 10.2.1984 till the plaintiffs are put in possession of the property._ _h) Defendants 1 to 3 are directed to demolish and remove the building put up by them on the plaint schedule land without causing damage to the land if the plaintiffs are not willing to pay to defendants 1 to 3 Rs.25 lakhs (Rupees Twenty five lakhs only) as its value._ _i) The 5[th] defendant is directed to demolish and remove the building occupied by him failing which the plaintiffs are at liberty to get it demolished and removed by the process of the court at his expenses._ _j) The plaintiffs are allowed to recover their costs from defendants 1 to 3 and defendant No.5.”_ It is the said decree that is assailed in these appeals. 8. As already noticed, the fate of the other appeals to a great extent depend on the decision in A.S.369 of 1996. If A.S.369 of 1996 is allowed, then all the other appeals will have to be allowed. If, on the other hand, A.S.369 of 1996 is dismissed, A.S.309 of 1996 filed by the fifth defendant may still survive for consideration. A.S.309/1996 & con.cases. 12 9. The dispute relates to 36 and odd cents of property situate in Kottayam town. Admittedly, it belonged to Prof. Mamman. According to the plaintiffs, a portion of the property with a shed therein was leased out to the father of the first defendant, namely Sri. Raman for conducting a workshop. On the death of Raman, the first defendant succeeded to the business. The allegation is that the so called sale deed namely Ext.B1 dated 8.1.1963 is a sham document and conferred no rights on the first defendant. The title continued with Prof. Mamman and he had been in possession of the property also. The claim of the plaintiffs is that since Prof. Mamman was advanced in age and was not keeping good health, he found it difficult to attend court on the various posting dates of O.S.154 and 155 of 1958. In order to conduct those cases properly, Ext.B1 was executed in favour of the first defendant and there was no intention to confer any right by virtue of that document over the suit property. The first defendant on the other hand would say 13 A.S.309/1996 & con.cases. that Ext.B1 is a pucca sale deed and title over the property covered by Ext.B1 passed to the first defendant and eversince then, he was treating the property as his own and dealing with the property as if it belonged to him. He would say that he has acted upon Ext.B1 document and had made considerable improvements in the property. 10. The trial court enumerated as many as 19 circumstances mainly based on the communications between Prof. Mamman and the first defendant and came to the conclusion that even after Prof. Mamman had executed Ext.B1 document, Prof. Mamman continued to be the owner of the property and Ext.B1 was only a camouflage. The act of the first defendant in opposing the Will of Prof. Mamman was also taken as a circumstance against the first defendant. 11. The main question that arises for consideration is whether Ext.B1 is a sham document. The subsidiary question that arises for consideration is that even A.S.309/1996 & con.cases. 14 if Ext.B1 is taken to be a sham document, will a suit lie for the eviction of the first defendant and others? 12. Learned Senior Counsel appearing for the appellants, namely, Sri.Krishnanunni severely criticized the finding of the court below and characterized it as perverse, unjust and unwarranted on the basis of the evidence adduced in the case. It was pointed out that the reasons given for executing Ext.B1 by the plaintiff are filmsy. If as a matter of fact Prof. Mamman was not physically fit to travel due to his age and illness, all that necessary was to execute a power of attorney in favour of the first defendant to conduct the litigation on his behalf. It looks extremely strange and contrary to reason that Prof.Mamman would execute a sale deed in favour of the first defendant to enable the first defendant to conduct the suits on his behalf. On the basis of Ext.B1, learned counsel pointed out that the first defendant got himself impleaded in the appeals, namely, A.S.652 and 679 of 1959 and the further 15 A.S.309/1996 & con.cases. proceedings were conducted by him. Learned Senior Counsel pointed out that in the appeals, apart from the plaint schedule property, other items of properties over which Prof.Mamman had rights were also involved. Even assuming that the circumstance relied on by the plaintiffs showing that the first defendant used to continuously appraise Prof.Mamman about the development of the case and the way it had progressed etc. are true, that by itself was not a ground to label Ext.B1 as a sham document. The finding of the court below that the draft of Ext.B1 is not produced also cannot be a circumstance to show that it is a sham document. The further finding that the sale consideration in Ext.B1 was unilaterally fixed and no amount was paid as per that document are only figments of imagination of the trial court whereas the facts were otherwise. 13. Learned counsel for the appellants went on to point out that Ext.B1 is a registered document and the A.S.309/1996 & con.cases. 16 burden is heavy on the plaintiffs to show that the document is something else than what it purports to be. On the basis of Ext.B1, the first defendant got himself impleaded in the appeals before this court and participated in the final decree proceedings. The first defendant herein was defendant No.18 in those proceedings. The property was allotted to him in the final decree and he entered into a compromise with one of the decree holders while executing that decree when it was found that a small portion of the building is protruding into the property set apart to another sharer and therefore the first defendant had purchased an extent of 1.05 cents from that sharer to avoid dismantling that portion of the building. Learned counsel went on to contend that an impartial perusal of the documents produced by the first defendant and the oral evidence will clearly show that eversince Ext.B1, the first defendant has been in exclusive possession and enjoyment of the property and he was shown as the land owner in various proceedings before the A.S.309/1996 & con.cases. **==> picture [13 x 9] intentionally omitted <==** Land Tribunal, where applications were filed by Kudikidappukars for purchase of kudikidappu. Attention was also drawn to the fact that a new building had been put up by the first defendant in the property. These glaring and telling circumstances and facts have been simply brushed aside stating that the letters written by the first defendant to Prof.Mamman will show that he was kept informed about the litigations and its progress. Learned counsel concluded by pointing out that if at all the plaintiffs had any complaint, that could be only regarding the non-payment of balance sale consideration made mention of in Ext.B1 and the nonpayment of the sale consideration cannot be a ground to hold that Ext.B1 is a void document or that it is a sham document. 14. In reply, Sri.P.G.Parameswara Panicer, learned Senior Counsel appearing for the contesting respondents, pointed out that the trial court had meticulously analysed the evidence to come to the conclusion that Ext.B1 is a A.S.309/1996 & con.cases. 18 sham document. Even after the socalled alleged sale deed, namely, Ext.B1, the evidence in the case would show that Prof.Mamman continued to take income from the property and was being consulted by the first defendant regarding the progress and the manner in which the cases are to be conducted. The evidence of D.W.1, namely, the first defendant, is sufficient to show, according to learned counsel, that Ext.B1 is a sham document. The fact that all subsequent documents show the property as if it belonged to the first defendant is in tune with the purpose for which Ext.B1 was executed and that cannot confer any right on the first defendant. 15. The counsel, who was appearing for Prof.Mamman in the appellate stage in A.S. 652 and 670 of 1959 made a compromise suggestion to Prof.Mamman. Prof. Mamman was not very keen about it. But he does not have the necessary courage to inform his counsel his non-inclination to accept the compromise. So, in order to A.S.309/1996 & con.cases. 19 change the lawyer and to protect the property, according to learned counsel, Ext.B1 was executed. It would be clear from the price shown in Ext.B1 and the evidence that it was not at the instance of Prof.Mamman that the price was fixed as would be clear from the evidence of D.W.2. His evidence would show that D.W.2 simply inserted a figure as sale consideration. Prof.Mamman was not very particular about the sale consideration because he executed Ext.B1 only as a sham document. In fact no consideration has passed as recited in Ext.B1. Learned counsel drew the attention of this court to the strange mode of payment of balance consideration and it was contended that such arrangements are unusual and unknown. Further, it was contended that if Ext.B1 was a true document, at some point of time after the sale consideration had become due, the vendor would have demanded the same. There is no evidence to show that at any point of time there was a demand for balance sale consideration. According to learned counsel, a reading of A.S.309/1996 & con.cases. 20 the evidence of D.W.2 would clearly show that Prof.Mamman continued to take income from the property. The communications produced and discussed by the court below would clearly show that even after the execution of Ext.B1, Prof. Mamman was treated to be the owner of the property by the first defendant also. Prof.Mamman though engaged another lawyer for the conduct of the case, he was not actively participating in the proceedings. First defendant took care to see that Prof.Mamman is kept in the know of things regarding the two suits, and he often used to insist that Prof.Mamman should come down and met the lawyer personally. If as a matter of fact the first defendant became the owner of the property, it was unnecessary for him to refer to Prof.Mamman regarding the manner in which the case should be conducted and such other matters. 16. It will be first useful to look at Ext.B1 document dated 8.1.1963. One may mention here that the real name of Prof .Mamman was Korah Maman. Ext.B1 is A.S.309/1996 & con.cases. 21 executed by Sri.Korah Maman in favour of the first defendant. The vendor claimed to be the absolute owner of the property conveyed under Ext.B1. The deed refers to the decree in O.S. Nos.154 and 155 of 1958 and also about the pendency of the appeals, namely, A.S.652 and 670 of 1959 before this court. The document then recites about the oldage of Prof.Mamman and his difficulties to conduct the cases. The document also recites that the purchaser, that is the vendee, is already in possession of the property as a tenant. The agreed sale consideration is Rs.25,000/-. It will be useful to see how the consideration is paid. Rs.5,000/had to be paid at the time of registration, Rs.7,000/- with 4 ½% simple interest on or before 7.1.1964, Rs.7,000/- with 5% simple interest on or before 7.1.1965 and Rs.6,000/with 5 ½% simple interest on or before 7.1.1966. The document contains all the necessary ingredients of a sale. Left by itself, there can be no doubt that the document evidences an outright sale. The property conveyed is 56 A.S.309/1996 & con.cases. 22 cents in Sy. No.1207. Ext.B9 is the draft of Ext.B1. The lower court feels that the correction carried out in Ext.B9 is subsequent to the getting of approval from Prof.Mamman for execution of the deed. For this, reliance is placed on the evidence of D.W.2. Counsel for the respondents referring to the evidence of D.W.2 pointed out that the agreed price was Rs.1,000/- per cent. If that be so, the total consideration would come to Rs.56,000/-. But according to the first defendant, Prof.Mamman had agreed to sell the property to Rs.25,000/-. The first defendant examined as D.W.2 had stated that he had taken the draft to Trivandrum for approval of Prof.Mamman. After approval, D.W.2 would say that he brought it back and then his Advocate carried out certain corrections and schedule of payment was added. 17. One of the main grounds which persuaded the lower court to hold that the sale evidenced by Ext.B1 was sham was the correspondences between the first defendant and Prof.Mamman. The court found that the claim of the A.S.309/1996 & con.cases. 23 first defendant that he had not aided Prof.Mamman in the conduct of the case is false as could be seen from the various letters produced and marked in the case. The court below also found that the progress of the cases, both in the High Court and in other courts were regularly informed by the first defendant to Prof. Mamman and quite often in the communications it is referred to as 'നമ�ട� ക�സ�' (our case) and 'നമ�ട� വക�ല� ' (our Advocate). The court below was of the opinion that after Ext.B1 the first defendant alone could have been interested in the property and the first defendant need not have taken the trouble of informing Prof.Mamman about the progress of the case. The acts on the part of the first defendant of informing Prof.Mamman about the progress of the case and seeking advise and presence for discussion of the case with their Advocate show that the first defendant acknowledged that Prof.Mamman retained right over the property inspite of Ext.B1. A.S.309/1996 & con.cases. 24 18. It is significant to notice that even the lower court was not prepared to accept the plea in the plaint that Ext.B1 was executed only with the intention of enabling the first defendant to conduct the case for and on behalf of Prof.Mamman. As rightly noticed by the lower court, if that was the intention, all that was necessary was to execute a power of attorney, which would have been sufficient to conduct the cases on his behalf. Therefore, the purpose for which the plaintiffs say Ext.B1 was executed was found to be false and quite rightly so. 19. Here, one aspect has to be noticed. Even in the plaint, it is averred that Ext.B1 was executed for the purpose of conduct of cases since Prof.Mamman was advanced in age and is sick is given a go bye and a different reason is set up at the time of hearing of appeal. 20. Another stand at the time of hearing of appeal, which has no basis in the plaint, is that Prof.Mamman was disinclined to accept the compromise A.S.309/1996 & con.cases. 25 suggested by the counsel appearing in the High Court and since he did not have the courage to say so to his counsel, he had executed Ext.B1 document. Such a case does not find a place in the plaint at all. It is claimed that Prof.Mamman felt that since he had not accepted the compromise, the Judge will be prejudiced, and that prompted him to transfer the property. The said reason is too difficult to believe and does not carry conviction. 21. Learned counsel appearing for the respondents pointed out that the evidence of D.W.2, that is the first defendant, shows that he had admitted that after Ext.B9 was shown to Prof.Mamman, certain alterations and additions were made therein at the instance of Adv. A.A.Joseph and there is nothing to show that those alterations were brought to the notice of Prof.Mamman. There is no evidence, according to learned counsel, therefore to show that the consideration shown in the document is the consideration agreed to by Prof.Mamman. A.S.309/1996 & con.cases. 26 Learned counsel also pointed out that it looks very strange that Ext.B1 recites that Rs.5,000/- shall be paid in the presence of the Registrar, which is uncommon and unusual in a sale deed. Further, attention was drawn to the fact that balance sale consideration is to be paid within a period of three years. It is also quite unusual. There is evidence in this case, according to learned counsel, to show that Rs.5,000/-, which was paid at the time of registration of the document, was returned by Prof.Mamman. In fact, therefore no consideration had passed under Ext.B1. 22. It appears that the lower court was greatly impressed by the above argument. But one has to note that Ext.B1 is a registered document. It clearly recites that a sum of Rs.5000/- was paid at the time of registration and that is seen acknowledged in the presence of the registering authority. The plaintiff would say that the said amount was returned. In order to establish that fact they rely on Ext.A24 diary. A.S.309/1996 & con.cases. 27 23. It is true that there is an entry in Ext.A24 diary. But the admissibility and evidentiary value of Ext.A24 is open to serious doubt. It is not a diary kept in the regular course. Stray entries are made without dates. Therefore, not much weight can be given regarding return of Rs.5,000/based on Ext.A24. 24. It is true that various letters written by the first defendant to Prof.Mamman make mention of the progress of the case, the steps to be taken and asking Prof.Mamman to come down for discussion with the Advocate appearing in the appeal. These letters have been given considerable significance and importance by the lower court. They do indicate that Prof.Mamman was kept in the know of things. 25. Before going further, one aspect needs to be noticed. Prof.Mamman had instituted O.S.1023 of 1112 in respect of 56 cents of property covered by Ext.B1 for an injunction restraining Kalarickal Kurian and others from 28 A.S.309/1996 & con.cases. trespassing into the property. In the said suit Kalarickal Kurian was the first defendant, Sri.Korah Mathew and Sri.Mariam Jacob were the other defendants. In the said suit, Prof.Mamman succeeded. Meanwhile, Mariam Jacob had executed an agreement for sale with Kalarickal Kurian. By virtue of the decree in O.S.1023 of 1112 Prof.Mamman was able to protect his possession over 56 cents of property. It is also significant to note that O.S.155 of 1958 and 154 of 1958, which were filed by the brothers of Prof.Mamman were dismissed by the trial court holding that Prof.Mamman had full right over the suit property. It was at the appellate stage that things began to change. It could be seen from the records that learned counsel appearing for Prof.Mamman in the appeals suggested a compromise and sought the opinion of Prof.Mamman. Ext.B7 dated 25.11.1972, Ext.B12 dated 11.7.962, Ext.B13 dated 26.7.1962, Ext.B14 dated 4.8.1962, Ext.B15 dated 9.8.1962, Ext.B16 dated 25.8.1962, Ext.B17 dated 7.9.1962, Ext.B18 A.S.309/1996 & con.cases. 29 dated 15.10.1962, Ext.B19 dated 28.10.1962, Ext.B20 dated 8.11.1962 and Ext.B21 dated 23.11.1962 are the letters written to Prof.Mamman by M/s.Menon & Pai, who was appearing for Prof.Mamman before the High Court. All these communications show that the counsel appearing for Prof.Mamman was trying to impress upon Prof.Mamman the advantage of arriving at a compromise and tried to persuade him to accept the compromise suggested. Ext.B13 is of some importance in this regard. In the compromise suggested at the appellate stage, namely, A.S.652 and 679 of 1959, the appellants were willing to give Prof. Mamman 26 ½ cents instead of 25 cents as suggested earlier. Counsel for Prof.Mamman also informed him that for getting 26 ½ cents, Prof. Mamman will have to give up the claim over the properties situate in Mavelikkara. Further communications of M/s.Menon & Pai show that the counsel felt that the compromise suggestion was reasonable and the communication also stated that Prof.Mamman could have A.S.309/1996 & con.cases. 30 26 ½ cents in that portion of the total extent of property where he had made improvements. M/s. Menon & Pai made it clear that the offer of 26 ½ cents at Kottayam was made only because Prof.Mamman must be willing to give up the claim over the property at Mavelikkara. 26. By Ext.B22 Prof.Mamman informed M/s.Menon & Pai that he had transferred the property to the first defendant and making a request that the records of the case may be handed over to the first defendant. It is specifically mentioned in Ext.B22 that Prof.Mamman had no further interest in the property and the property belonged to the first defendant. He also informed M/S.Menon & Pai that Sri.Sukumaran, i.e., the first defendant, will make his own arrangements for the conduct of the case. Ext.B23 is the communication sent by M/s.Menon & Pai to Prof.Mamman informing the handing over of the records to Sri.Sukumaran, the first defendant. Ext.B24 is an affidavit filed by Prof.Mamman before court seeking to have the first A.S.309/1996 & con.cases. 31 defendant impleaded in A.S.Nos.652 and 670 of 1959. The impleading petition was allowed and the first defendant was brought on the party array. One fact needs to be mentioned here. Ext.B1 was executed after Ext.B series of communications from M/s. Menon & Pai, as already referred to, were received by Prof.Mamman. From the letters of M/s.Menon & Pai addressed to Prof.Mamman, it is clear that Prof.Mamman could at best get maximum 26 ½ cents out of 56 cents at Kottayam. This must have annoyed Prof.Mamman because he wanted the entire 56 cents. It was then that Ext.B1 dated 8.1.1963 was executed and handing over of files was sought for. 27. It is significant to note that Ext.B1 is for 56 cents of property. It was at a point of time when Prof.Mamman was almost certain that he is not going to get the entire 56 cents. He executed Ext.B1 in respect of 56 cents for a total consideration of Rs.25,000/-. A.S.309/1996 & con.cases. 32 28. Learned counsel for the respondents in these appeals contended that the evidence of D.W.2 would show that the value of the property was fixed at Rs.1,000/- per cent and that would mean that the property would have a value of Rs.56,000/-. The further case was that Prof.Mamman agreed for a price of Rs.36,000/- and D.W.2 brought it down to Rs.25,000/-. Learned counsel would stress on the point that it is too difficult to believe that Prof.Mamman agreed to sell the property for such a low consideration and to crown it all, that too is not paid. These facts, according to learned counsel, are sufficient to show that Ext.B1 is a sham document. 29. One cannot forget the fact that Ext.B1 was executed at a point of time when Prof.Mamman was almost certain to get only 26 ½ cents out of the 56 cents if he accepts the compromise suggested by his counsel and also agrees to forego his claim over the property at Mavelikkara. There is no evidence to show that Prof.Mamman was ever A.S.309/1996 & con.cases. 33 willing to give up his claim over the properties at Mavelikkara unless he gets the entire 56 cents of property at Kottayam. One must notice that if 26 ½ cents of property were given at Kottayam and if he had to give up his claim over the property at Mavelikkara, that would certainly cause considerable loss to him since the land and building were occupied by D.W.2 and kudikidappukars. If at all any extent was left, that would have been too little an extent of property. In all probability, it was sensing this contingency that Prof.Mamman might have agreed for a price of Rs.25,000/- for 26 ½ cents of property, though the document shows that the extent conveyed is 56 cents of property. 30. Learned counsel appearing for the respondents placed heavy reliance on the correspondences between Sukumaran and Prof.Mamman, namely, Ext.A8 dated 14.1.1963, Ext.A6 dated 23.3.1963, Ext.A7 dated 1.9.1963, Ext.A10 dated 19.8.1963, Ext.A9 dated 2.11.1963, 34 A.S.309/1996 & con.cases. Ext.A11 dated 27.6.1963, Ext.A13 dated 16.12.1963, Ext.A15 dated 17.9.1963, Ext.A16 dated 19.8.1965, Ext.A18 undated, and Ext.A19 dated 9.10.1967. In these letters by the first defendant to Prof.Mamman, he informs Prof.Mamman about the progress of the case regularly and even the presence of Prof.Mamman was sought for consultation with the lawyer engaged by the first defendant, namely, Adv.Kuttikrishna Menon. The communication also mentions about the need to come down to file vakalath. It must be noticed that both Prof.Mamman and the first defendant had engaged Adv.Kuttikrishna Menon for further conduct of the case. The contention is that if as a matter of fact Prof.Mamman knew that he had no subsisting interest in the litigation that were going on between him and his brothers, there was no need for the first defendant to address Prof.Mamman regarding the progress of the case or to solicit his presence for consultation with the lawyer. Ext.A27 is a letter dated 13.12.1963 said to have been A.S.309/1996 & con.cases. 35 written, but which was admittedly not sent. It is claimed on the basis of this letter that Prof.Mamman continued to be the owner of the property and the first defendant was only a benamidar. 31. The fact that the first defendant used to regularly correspond with Prof.Mamman regarding the conduct of the case and even solicited his presence cannot be of much help to the plaintiffs. First of all, Prof.Mamman alone had full knowledge of the facts of the case and regarding the various transactions relating to the property. He had with him the deeds and documents relating to the property. Further, one has to remember that in the appeal, which were pending before the High Court, the properties at Mavelikkara was also involved. From the correspondences between M/s.Menon & Pai and Prof.Mamman, it could be seen that Prof.Mamman would get 26 ½ cents if he agreed for the compromise and he was to give up his rights over the properties at Mavelikkara. Prof.Mamman did not accept that A.S.309/1996 & con.cases. 36 compromise suggested and instead executed Ext.B1. Therefore, the properties at Mavelikkara were still subject matter of the litigation over which Prof.Mamman had rights. Further, it could be seen that if the first defendant herein was successful in getting A.S.652 and 670 of 1959 dismissed, then there might have been an understanding between Prof.Mamman and the first defendant to reconvey the balance extent of property leaving 26 ½ cents covered by Ext.B1. Otherwise, it defies one's logic as to how Prof.Mamman could assign 56 cents at Kottayam and why would the first defendant, who is in the know of things purchase the same. This probably explains how the consideration was fixed at Rs.25,000/- in Ext.B1. It therefore could not be claimed that subsequent to the execution of Ext.B1 Prof.Mamman had nothing to do with the litigations and he had no right over any of the items of properties involved in the litigation. As already noticed, properties at Mavelikkara was also involved in the litigation and A.S.309/1996 & con.cases. 37 Prof.Mamman had subsisting right and interest over those properties. Knowing fully well that he is not going to get the entire 56 cents at Kottayam, he necessarily would have been fighting for a share of the properties at Mavelikkara and that explains why the first defendant was regularly corresponding with Prof.Mamman regarding the progress of the litigations. Therefore, the contention that the mere fact that letters had been written by the first defendant to Prof.Mamman about the litigations clearly indicates that Ext.B1 was a sham document cannot be countenanced. 32. The conduct of the parties was highlighted by both sides in respect of their contentions. 33. Going by the contentions raised by the appellants, they say that after Ext.B1 was executed in favour of the first defendant, there is considerable evidence to show that he has been treating the property as his own. It is pointed out that in the final decree proceedings in O.S.154 and 155 of 1958, 30 and odd cents were set apart to the first A.S.309/1996 & con.cases. 38 defendant. He had purchased one and odd cents to save a portion of the building in the property. He effected mutation and paid land tax in his name. He had put up a new building in the property and rented out the premises to various persons. Building tax was paid by him. A portion of the property was sold by him. In fact, according to the appellants, there is absolutely no evidence to show that after Ext.B1 document, Prof.Mamman had exercised any manner of right over the property situate in Kottayam. 34. The contention on behalf of the respondents was that Ext.B1 cannot be treated as a sale as it was not supported by consideration. It is further contended that no right passes under that document. It is pointed out that Rs.5,000/- which is said to have been paid in the presence of the Registrar, had been returned to the first defendant and there is nothing to show that balance sale consideration has been paid by the first defendant. The payment of meager amounts to Prof.Mamman and thereafter to the first A.S.309/1996 & con.cases. 39 plaintiff were towards the rent due from the first defendant and not towards the sale consideration as contended by him. Emphasis was laid on the fact that D.W.2 had admitted that Prof.Mamman used to take coconuts from the property. Further, it is contended that if as a matter of fact there was a sale in the strict sense of the term, obviously atleast after the period was over, the vendors would have insisted for payment as per the schedule contained in Ext.B1. It is also pointed out that the reason given that paltry payments have been made by the first defendant to the first plaintiff does stand stand to reason and it is least convincing. As regards the putting up of building is concerned, it is contended that the plaintiffs objected to the same. In support of the contention that no sale has taken place, learned counsel for the respondents relied on a passages from Mulla on Transfer of Property Act, 10[th] Edn. _“The essential elements of a sale are :_ _(1) the parties;_ _(2) the subject-matter;_ A.S.309/1996 & con.cases. 40 ## _(3) the transfer or conveyance; (4) the price for consideration._ _........... ............_ _The price is fixed by the contract antecedent to the conveyance. Price is of the essence of a contract of sale, and unless the price is fixed, there is no enforceable contract, because if no price is named the law does not imply, as in the case of a sale of goods, a contract to buy at a reasonable price. If no price is paid or promised, even a registered deed does effect a sale. However, it is sufficient if the contract specifies definite means of ascertaining the price. The law is stated by Fry on Specific Performance as follows:_ _In all sales it is evident that price is an essential ingredient, and that where it is neither ascertained nor rendered ascertainable, the contract is void for incompleteness, and incapable of enforcement. It is not however necessary that the contract should in the first instance determine the price, it may either appoint a way in which it is to be determined or it may stipulate for a fair price. A contract for sale at_ A.S.309/1996 & con.cases. 41 _33 years' purchase of the net income is valid, and capable of specific enforcement. The plea of absence of any sale due to sale consideration being very low is untenable, unless there is reliable evidence on record to show as to what was the market value of the land at the time of the agreement. There should be direct or indirect evidence of any contemporaneous transaction on record._ _A clause in an agreement that the purchaser will at his own expense and cost take proper legal steps to protect and defend the properties, was held as affording sufficient and adequate consideration. The law does not require that the consideration should be immediately ascertainable in money. It is sufficient if it is ascertainable at a time when the payment is made. Where the transaction is on the face of it complete, it cannot be regarded as a mere agreement on the ground that the price is unascertained at that time._ _Where, according to the terms of the deed, title was not to pass to the vendee on execution and registration of the deed, but was to pass only_ A.S.309/1996 & con.cases. 42 _on exchange of equivalents, then title would not pass on execution of the deed._ _The fact that there is difference between two sale deeds of the same property executed at different times does not, in itself, prove that the subsequent sale deed showing a lower price, must be collusive, and lacking in bona fides. On the contrary, the mala fide purchaser generally inflates the price.”_ Reliance was also placed on the decisions reported in 1983 All. 383 and **Vidhyadhar v. Manikrao** ((1999) 3 SCC 573). Evidence of D.W.2 was also extensively referred to to show that draft of Ext.B1 sale deed, i.e. Ext.B9 could not have been approved by Prof. Mamman as claimed by the second defendant and the subsequent correction without reference to Prof.Mamman show that it is only a sham document. 35. It must be said that the contention of the respondents looks very formidable and convincing at the first blush. But a close scrutiny of the evidence shows that it lacks merit. The first and the foremost aspect is that A.S.309/1996 & con.cases. 43 Ext.B1 is a document registered in accordance with law. Prima facie, the recitals will be presumed to be correct and true. The consideration fixed as per the document is Rs.25,000/- and the document recites that Rs.5,000/- was paid at the time of registration. According to learned counsel for the respondents, it is highly suspicious because normally in no document of sale such a stipulation would not have been there. Though may be unusual, it cannot be said that it is an indication that Ext.B1 was a sham document. Even otherwise, the registering authority would have usually ascertained whether the consideration has passed and whether he was aware of the contents of the document. Ext.B1 contains all the statutory endorsements and the registration seems to be in accordance with law. These are sufficient to constitute prima facie evidence of execution of Ext.B1. Even though it is claimed by the plaintiff that Rs.5,000/- was returned, there is no evidence regarding the same. A.S.309/1996 & con.cases. 44 36. True, the mode of payment of balance sale consideration looks unusual and strange. But that by itself is not a ground to hold that Ext.B1 is not a sale in the strict sense of the term. There have been payments to both Prof.Mamman and the first plaintiff after the execution of Ext.B1. The first defendant had also produced his accounts to show that payments were infact made. It is of some significance to note that even the lower court refused to accept that those payments were towards the rent payable by the first defendant to Prof.Mamman. The rent, even according to the first plaintiffs was Rs.170/- per month. Even assuming that after the registration of Ext.B1 the balance sale consideration is not paid, the remedy of the plaintiffs is only to sue for balance sale consideration charges on the property. Once registration is effected, title passes unless it is shown that there is some term or condition in the deed to the effect that title will pass only on the happening of a future event. If there is a recital in the A.S.309/1996 & con.cases. 45 document that title will pass only on the payment of balance sale consideration, that would be a different issue and the vesting of title may be postponed. When there is no condition postponing the vesting of title, the title vests with the vendee on registration. 37. The fact that neither Prof.Mamman, nor the first plaintiff demanded the balance sale consideration when they were long overdue cannot be taken as a ground to label Ext.B1 as a sham document. D.W.2, who is the first defendant, has given evidence regarding the payment said to have been made by him. Even assuming that the claim of D.W.2 regarding the various payments is unacceptable hor want of convincing evidence, it does not make the document a sham or void one. 38. As already noticed, the main case set forth by the plaintiffs is that the correspondence between Prof.Mamman and the first defendant and thereafter between the first plaintiff and the first defendant would A.S.309/1996 & con.cases. 46 clearly show that Ext.B1 is a sham document is without merits. Nowhere, it is seen stated by D.W.2, who is the first defendant, that Ext.B1 is a sham document and he is prepared to reconvey the property. The first plaintiff when examined as P.W.1 speaks about a deed said to have been executed by the first defendant on 18.5.1968 agreeing to reconvey the property. The same is not produced. So also the fact that the first defendant used to take coconuts from the property to Prof.Mamman at Trivandrum could not be given undue importance and significance to lead to the conclusion that Ext.B1 is a sham document. The conduct of the first defendant in associating with Prof.Mamman in the litigation subsequent to the execution of Ext.B1 invokes no surprise and is not unusual. There is nothing to show that after the execution of Ext.B1, Prof.Mamman had exercised any manner of right over the suit property. There is also nothing to show that at any point of time he had asserted title in himself and had indicated that Ext.B1 is a sham A.S.309/1996 & con.cases. 47 document and the first defendant did not derive any benefit under that deed. 39. Payment of tax etc., is sought to be explained by the counsel for the respondents saying that those payments in the name of the first defendant were in consonance with Ext.B1 and that can be of no help to the appellants in these appeals. If as a matter of fact those amounts were being paid on behalf of Prof.Mamman, one would have expected those documents to be produced by the plaintiffs. 40. There is evidence to show that mutation has been effected in the name of the first defendant. It has also come out in evidence that there were kudikidappukars in the property. They had applied for assignment of kudikidappu right and they had shown the first defendant as the owner of the property. They were successful in getting the purchase certificate. Exts.B52 and B53 evidence this fact. Ext.B52 is an application filed by Decroose Joseph. Ext.B53 is an A.S.309/1996 & con.cases. 48 application by Thankappan and Govindan Kalyani for purchase of kudikidappu as per O.A.1299 of 1976. The evidence show that both of them were given three cents each. Ext.B75 is a compromise petition between the nineth decree holder and the first defendant herein. In execution of the final decree in O.S.154 and 155 of 1958, it appears that the first defendant had to enter into a compromise with the nineth decree holder relating to the plaint schedule property. It is also seen that Sukumaran, the first defendant, had purchased about 1 ½ cents to save the building. There is nothing to show that at the instance of the Prof.Mamman that the purchase was made. In Ext.B67 is a sale deed executed by Sukumaran to one Varghese dated 1.9.1983 in respect of 2.1 cents out of the plaint schedule property. In Ext.B67 Sukumaran traced title to Ext.B1. Ext.B80 is a copy of the order in O.A.321 of 1972 filed by the first defendant herein to have a kudikidappu shifted. That was dismissed on the ground that A.S.309/1996 & con.cases. 49 kudikidappukaran had not applied under Section 80B for purchase of the same. Though the legality of the order may be open to serious doubt, these documents were produced only to show that the first defendant was shown as the landlord of the property. Ext.B9 dated 9.8.1978 is the draft sale deed executed by the first defendant in favour of her son covering an extent of 2.05 cents. Ext.B60 dated 19.8.1981 is a gift deed in favour of his wife in respect of 9 cents. Ext.B58 dated 1.4.1974 is the sale deed executed in favour of Sukumaran in terms of the compromise at the time of execution which has already been referred to. Exts.B56 and B57 are two rent deeds executed by the tenants for occupying the rooms let out to them by Sukumaran. These clinching items of evidence will clearly show that Ext.B1 sale deed is a genuine transaction. Probably, as already stated, there might have been an understanding between Prof. Mamman and the first defendant that if more than 26 ½ cents is obtained by the A.S.309/1996 & con.cases. 50 first defendant, that extent would be conveyed to Prof.Mamman. 41. The evidence of P.W.3 is heavily relied on to contend for the position that Ext.B1 is a sham document and that the first defendant had agreed to reconvey the property to the first plaintiff. P.W.3 has stated that P.W.1 used to come and stay with him and P.W.1 had told him everything. He claims to have asked the first defendant to come to his house and they talked about the issue. P.W.3 also says that he was given to understand that there was a document said to have been executed in favour of the first plaintiff's father by the first defendant regarding the property. P.W.3 would further say that when the first defendant came to his house, the first plaintiff asked him about the document and then the first defendant stated that the litigations were not over. 42. True, the evidence of P.W.3 supports the evidence of P.W.1 and also the case put forward by the plaintiffs. However, that has to be viewed in the light of the A.S.309/1996 & con.cases. 51 further evidence essentially in the light of the documentary evidence adduced by defendants 1 to 3 to show that Ext.B1 has been acted upon and after the execution of Ext.B1 the first defendant has been treating the property as his own. 43. The lower court has spent much time discussing about the probate proceedings initiated by the first plaintiff with respect to the Will executed by Prof.Mamman. The act of the first defendant in opposing the grant, according to the lower court, shows the malafides of the first defendant. He had lodged a caveat in the District Court. It is interesting to note that the original of the Will was not produced and probate was issued on a copy of the Will said to have been executed by Prof.Mamman. One fails to understand how the conduct of the first defendant in contesting the probate O.P. wherein he was shown as defendant by the plaintiff could lead to the inference that Ext.B1 is a sham document. The issue as to whether the A.S.309/1996 & con.cases. 52 Will of Prof.Mamman was genuine or not is not a question arising for consideration in the present suit. 44. In the plaint, there is no whisper regarding the new building put up by the first defendant. In fact the plaint proceeds on the basis that the first defendant is in occupation of the shed which was initially let out to him and the allegation is that he had sublet portion of the shed to various persons namely, defendants 5 to 10. The plant proceeds as if defendants 5 to 10 are unauthorised subtenants in the property. Even after the written statement was filed pointing out that a new building has been put up by the first defendant, there was no attempt to amend the plaint to seek suitable relief and the plaint as it now stands, the averments are to the effect that the first defendant is still occupying the old shed which was let out to the father of the first defendant. 45. Even accepting the case put forward by the respondents that there is no evidence to show that the first A.S.309/1996 & con.cases. 53 defendant had paid balance sale consideration covered by Ext.B1, as already noticed, the only right of the plaintiff is to sue for balance amount due to them and non-payment of balance sale consideration is not a ground to set aside the sale or to hold that the sale has not taken effect. The title vests with the vendee as soon as registration is over. 46. At the risk of repetition, one may notice that the words 'our case' and 'our Advocate' and few recitals from the various letters by the first defendant to Prof.Mamman and P.W.1 stating that he is willing to talk about the matter cannot be given undue importance in the light of the documentary evidence furnished by the first defendant to say that Ext.B1 is a genuine document. One may also remember that the reason given for executing Ext.B1 is least convincing and does not stand to reason. 47. At this juncture, one cannot omit but to notice Ext.B45, which is a judgment in A.S. 652 and 670 of 1959 A.S.309/1996 & con.cases. 54 ## rendered by the High Court. The decreetal portion reads as follows: _“In the result, A.S. No.652 of 1959 is partly allowed and the appellant therein is declared entitled to 14 cents in the suit property and A.S. No.670 of 1959 is partly allowed and the appellants therein are held entitled to another 14 cents in the suit property, both subject to the equities that have to be worked out in regard to the shares of the respective parties in the Mavelikkara properties which all the sons of W.T.Korah are admittedly entitled to in equal shares. This decree will be a preliminary decree in the cause and the court below will investigate the consequential readjustments to be made in regard to the Mavelikkara property and pass a final decree in accordance with this Judgment accordingly._ _As the appellants have succeeded in part only, there will be no order as to costs in either of these appeals.”_ A.S.309/1996 & con.cases. 55 48. It is also important to notice that in Ext.B24, an affidavit filed by Prof.Mamman to implead the first defendant in the appeal, it is clearly stated that the right, title and interest in the property had been transferred to the first defendant and thereafter he had no manner of interest in the property. He therefore requested that the first defendant may be impleaded in his place in the first appeal. Ext.B47 dated 8.6.1965 is a final decree in O.S.154 and 155 of 1958 which was passed after the High Court had disposed of the appeals. The following observation in Ext.B47 is of considerable importance. _“Plot C and D shown in Ext.AN plan are allotted to the shares of the 1[st] defendant which now belongs to 18[th] defendant under Ext.AQ. It is seen that a portion of the building juts into the plots B and a which ought to be removed by the 18[th] defendant and his costs, within months.”_ The records indicate that as early as in 1965 itself, the first defendant had claimed that the building and the structures in the property were put up by him and his father. Of course A.S.309/1996 & con.cases. 56 that was found against in O.S.154 of 1958. Exts.B47 and B34 explains why the first defendant in O.S.154 and 155 of 1958, who is none other than Prof.Mamman had to continue the proceedings. Both the documents will reveal that there was dispute regarding the properties at Mavalikkara also. Prof.Mamman, as already noticed, was not willing to give up his claim regarding that property. It is also interesting to note that a joint appeal was filed by Prof.Mamman and the first defendant against the final decree passed by the trial court. It is also interesting to note that the second appellant, who is none other than the first defendant in the present suit, had claimed fixity of tenure under Section 106 of the Kerala Land Reforms Act and Prof.Mamman seems to have supported him, but the claim was found against. 49. For the above reasons, it is extremely difficult to accept the finding of the court below that Ext.B1 is a sham document. On the other hand, there is overwhelming evidence to show that eversince Ext.B1 document, the A.S.309/1996 & con.cases. 57 property has been treated as if it belonged to the first defendant and he has been exercising acts of possession over the same to the exclusion of Prof.Mamman. Prof.Mamman had also for all practical purposes held out that the property was owned and possessed by the first defendant. What is important is that even after the final decree was passed and properties were set apart to the first defendant in the present suit, Prof.Mamman had taken no steps to have re-conveyance of the property till his death in 1971. Till 1983 the plaintiffs also did not feel it necessary to take any steps. Except for the suit notice issued in 1984, there is nothing to show that steps had taken either by Prof.Mamman or by the plaintiffs for reconveyance of the property. 50. There is yet another aspect in the case. It is doubtful whether the suit itself is maintainable. The first defendant is characterised as a tenant of the building and defendants 5 to 10 are subtenants. Admittedly, the area is A.S.309/1996 & con.cases. 58 covered by Act 2 of 1965. Normally therefore the plaintiff had to seek eviction taking recourse to the provisions of Act 2 of 1965. It is true that the first defendant had disputed title of the plaintiffs. But as long as the first defendant and defendants 5 to 10 are characterised as tenants and subtenants, recourse under Act 2 of 1965 becomes mandatory. If in the rent control proceedings, the tenant disputes the title of the landlord, and the dispute is a bona fide one, the landlord will have to be relegated to a suit. It is doubtful whether the landlord can directly approach the civil court for eviction on the premise that the tenant had disputed the title of the landlord. Apart from this fact, going by the provisions of Act 2 of 1965, eviction can be only on one of the grounds envisaged under Act 2 of 1965. 51. Infact the lower court was conscious about this fact. Paragraph 74 of the judgment of the lower court shows that the question was whether the first defendant is liable to be evicted by a civil court. It also says that in the A.S.309/1996 & con.cases. 59 case on hand it is only appropriate to note that eviction is ordered under Section 11(4)(ii) of the Act. However, it is not possible to understand how eviction could have been granted under that provision without any plea or prayer to that effect. The suit may be maintainable, so long as it is confined to a declaration of title of the plaintiffs and does not extend to seeking eviction of the defendants, who are characterized as tenants and subtenants. If the plaintiffs are successful in proving their title to the property, it may be possible to say that they may be relegated to the Rent Control court for eviction. 52. Learned counsel for the respondents contended that the land and the building will have to be treated separately. Therefore, if the plaintiffs succeed, recovery of possession can be granted. It was also contended that since the earlier building which was let out to the first defendant is no longer in existence and a new A.S.309/1996 & con.cases. 60 building has been put up, there is no question of taking recourse to Act 2 of 1965 for eviction. 53. As noticed earlier, even though in the written statement, the first defendant had pointed out that he had put up a new building, there was no consequential amendment of the plaint for eviction from the land and the present building on the premises that the old structure has been pulled down by the tenant and a new structure had been put up without the consent of the landlord and such a structure put up is illegal. Therefore the tenant is not entitled to protection under Act 2 of 1965. 54. What now remains to be considered is if it is found that the balance sale consideration is not paid, what should be the relief that should be granted to the plaintiffs. Normally, all that they are entitled to is the amount that is due to them. But one has to notice that the sale was in the year 1963 and we are in 2011. Balance sale consideration of Rs.20,000/- remains to be paid. Of course the first A.S.309/1996 & con.cases. 61 defendant has given a statement of accounts in his evidence and also produced some documents to show that a major portion of balance sale consideration had been paid and only a paltry sum remained to be paid. As rightly noticed by the lower court, the claim of the first defendant in this regard cannot be accepted. That means, the balance amount due under Ext.B1 has to be paid. 55. It is well known that the price of the property has appreciated considerably since 1963. The first defendant has gained by postponing the payment of balance sale consideration and the plaintiffs have suffered considerable loss in that regard. 56. In the above circumstances, equity steps in and commands that the court must do justice in such situations. For the delayed payment, compensation necessarily will have to be awarded. 57. On a consideration of the evidence in the case, this court finds it difficult to accept the view of the trial A.S.309/1996 & con.cases. 62 court that the plaintiffs had proved their title to the suit property and are entitled to recover the same. This court is of the view that Ext.B1 is a pucca sale deed and the property stands transferred to the first defendant who had acted upon it and had made valuable improvements in the property. 58. However, this court feels that adequate relief should be granted to the plaintiffs to compensate them for the delayed payment and this court feels that the first defendant should pay a sum of Rs.10,00,000/- towards the balance sale consideration and compensation for the delayed payment. In the result, these appeals are allowed, judgment and decree of the trial court are set aside and a decree is passed as follows: i) It is found that the legal heirs of the first defendant in O.S.26 of 1984 before Sub Court, Kottayam, who is no more, are the owners of the plaint schedule property and they are not liable to be evicted. A.S.309/1996 & con.cases. 63 ii) Legal heirs of the first defendant in O.S.26 of 1984 before Sub Court, Kottayam shall pay a sum of Rs.10,00,000/- to the plaintiffs within three months from today, failing which the plaintiffs will be entitled to realise the amount with 8% interest from the date of suit till realization charged on the suit property. iii) Judgment and decree against the fifth defendant are set aside. iv) There will be no order as to costs. **P. BHAVADASAN, JUDGE** sb.