K.K. Michael v. Anakkutty Thomas and Jose Thomas

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN** **FRIDAY, THE 1ST OCTOBER 2010 / 9TH ASWINA 1932** **RSA.No. 990 of 2009()** **--------------------AS.16/2007 of SUB COURT, PALA OS.29/2006 of MUNSIFF'S COURT, ERATTUPETTA** **....................** ## **APPELLANT/APPELLANT/PLAINTIFF:** **---------------------------------------** **K.K.MICHAEL, S/O. KURIAKOSE KOLLIYIL RESIDING AT MUNDANKAL.P.O. FROM KELAMPARA KARA, THALAPPURAM VILLAGE, KOTTAYAM DIST.** **BY ADV. SRI.B.KRISHNA MANI SMT.M.R.ANUPAMA** ## **RESPONDENT(S)/RESPONDENTS/DEFENDANTS:** **-------------------------** **1. ANNAKKUTTY THOMAS, W/O. THOMAS ANTHINADU HOUSE, MELAMPARA KARA, FROM THEKKUMURI KARA, PULIYANNOOR VILLAGE, KOTTAYAM DIST.** **2. JOSE THOMAS, S/O.THOMAS DO-DO-** **ADV. SRI.S.PRASANTH FOR R1& 2** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 23/09/2010, THE COURT ON 01/10/2010 PASSED THE FOLLOWING:** ## **S.S.SATHEESACHANDRAN, J. ------------------------------R.S.A.NO.990 OF 2009 ----------------------------------Dated this the 1[st] day of October, 2010** ## **J U D G M E N T** Plaintiff in a suit for specific performance is the appellant. His suit for specific performance of an agreement of sale and for perpetual prohibitory injunction was dismissed by the trial court, which was confirmed by the lower appellate court as well. Aggrieved thereby, he has preferred this appeal. 2. The 1[st] defendant entered into Ext.A1 agreement for sale in respect of her property having an extent of 80 ares and 93 sq.meters receiving an advance of Rs.1 lakh and that contract was performed only in part and, violating the terms of the agreement, over a portion of the property agreed to be conveyed she had executed a settlement deed in favour of her son, the 2[nd] defendant, was the case of the plaintiff for a decree to compel the 1[st] defendant to execute a sale deed of the balance portion of the property covered under the agreement in his favour. The **R.SA.NO.990/09** **2** defendants, mother and son, together resisted the suit contending that two sale deeds had been executed by the 1[st] defendant in favour of the plaintiff at different points of time, and in the completion of the contract of sale as and when the second sale deed was executed the plaintiff was fully conscious and aware of the execution of the settlement deed in favour of the 2[nd] defendant over a portion of the property, which, according to the defendants, continued earlier also under the possession and enjoyment of the 2[nd] defendant. Agreement of sale was for an extent of 80 ares and 93 sq.meters and under the two sale deeds, 78.34 ares of property had been conveyed to the plaintiff. Entitlement of the plaintiff to get a decree of specific performance over the plaint property, which, admittedly, was covered by the settlement deed executed in favour of the 2[nd] defendant by the 1[st] defendant mother before the execution of the second sale deed in favour of the plaintiff under the agreement of sale, was impeached by the defendants contending that he has no right to seek such an equitable relief from the court. The trial court, having regard to the pleadings and the materials tendered, which consisted of the evidence of the **R.SA.NO.990/09** **3** plaintiff alone as PW1 and Exts.A1 to A7 on his side, came to the conclusion that the plaintiff was fully aware of the execution of the settlement deed (Ext.A3) over the plaint property in favour of the 2[nd] defendant, by his mother, the 1[st] defendant, when he obtained the second sale deed (Ext.A2) and further, on the facts proved, he is not entitled to the equitable relief canvassed for, dismissed the suit. Challenge against the dismissal of the suit by way of an appeal also failed as the lower appellate court, after re-appreciation of the evidence, fully concurred with the findings of the court below holding that the plaintiff is not entitled to the reliefs prayed for. Concurrent decision so entered by the two courts below that the appellant/plaintiff is not entitled to the equitable relief of specific relief applied for compelling the 1[st] defendant to execute a sale deed in respect of the plaint schedule property by a decree of the court, is challenged in this appeal. 3. The learned counsel for the appellant contended that both the courts below have erred in exercising the discretion in declining the specific relief sought for by the plaintiff where he **R.SA.NO.990/09** **4** had proved the agreement of sale and showed that for completion of the contract, the 1[st] defendant was bound to convey the plaint property as well in his favour. When the breach of contract by the 1[st] defendant is demonstrated by the admitted fact that she had executed a settlement deed in favour of her son, the 2[nd] defendant, over the property covered by the agreement of sale the court should have exercised its discretion to decree the specific performance, especially, where there was nothing to indicate that the contract was unfair and unreasonable, submits the counsel. Reliance is placed by the counsel on **Prakash Chandra v. Angadlal and Others ((1979) 4 SCC 393)** to contend that discretion of specific relief is guided by sound judicial principles and it cannot be passed on whims and fancies or pleasure of the court. No special circumstance whatsoever has been made out in the case by the defendants, according to the learned counsel, to show that the discretion in the grant of specific performance should be exercised against the plaintiff. Canvassing support from Section 10 of the Specific Relief Act, the learned counsel urged that where the agreement of sale (Ext.A1) has been proved, the rule should be the grant of **R.SA.NO.990/09** **5** specific performance and denial of the same might be an exception and such exception is only where the proposed vendor demonstrate that the breach could be adequately compensated. Sub clause (i) of the Explanation to Section 10 of the above Act is banked upon by the counsel to contend that the presumption which has to follow until the contrary is proved where a breach of contract over the transfer of immovable property is established is that it cannot be adequately relieved by compensation in money. Such being the position of law, it is submitted by the counsel, both the courts have misread, misappreciated and misconstrued the facts and circumstances involved in the case and also wrongly exercised the discretion in declining the equitable relief applied for overlooking the sound principles of law applicable in exercise of such discretion, and so much so, the disposal of the appeal on merits after receiving it on the file of the court, is essential to advance the ends of justice. 4. After going through the judgments rendered by the two courts below non-suiting the plaintiff, with reference to the **R.SA.NO.990/09** **6** submissions made by the learned counsel for the appellant, I find there is no merit in the submissions made that there was impropriety and inexcusable error in exercise of discretion by the courts in declining the equitable relief applied for by the plaintiff. The first thing to be noticed from the facts presented in the case is that Ext.A1 agreement of sale taken by the plaintiff from the 1[st] defendant was for an extent of 80 ares and 93 sq.meters of immovable property. Admittedly he had taken two sale deeds, the first one executed on 17.11.2005 for an area of 60.70 ares of land and the second sale deed (Ext.A2) was for 16.19 ares. Admittedly, before the second sale deed (Ext.A2) was executed in his favour, under Ext.A3 settlement deed, the 1[st] defendant had settled the remaining portion covered by the agreement of sale in favour of her son, the 2[nd] defendant. The case of the plaintiff is that he was unaware of Ext.A3 settlement deed when Ext.A2 sale deed was taken from the 1[st] defendant. It is interesting to note that the plaintiff who had canvassed for a perpetual prohibitory injunction against the 1[st] defendant from alienating the plaint property, the remaining portion to be conveyed for completion of the contract of sale (Ext.A1), has not **R.SA.NO.990/09** **7** sought for any alternative relief for refund of any amount paid as earnest money or towards sale price to the 1[st] defendant. He has also not produced one among the two sale deeds, the earlier one executed in his favour by the 1[st] defendant in respect of 60.70 ares of land on 17.11.2005. Advance paid under Ext.A1 agreement of sale, admittedly, was Rs.1 lakh. Whether the entire amount paid as advance was adjusted or not when the first sale deed was taken remains a mystery. The second sale deed (Ext.A2), it is seen, was taken by the plaintiff on 15.2.2006. That sale deed was for an area of 16.19 ares of land. Plaintiff has no case that any amount paid as advance under Ext.A1 agreement of sale remained with the 1[st] defendant after execution of the two sale deeds, the first one for 60.70 ares of land and the second one for 16.19 ares of land. The trial court has referred to a document produced by the plaintiff as a reply sent by the counsel for the 1[st] defendant to the suit notice issued by him. The document produced was a photocopy attested by a counsel different from the one shown as having sent the reply, and as such it was found to be inadmissible. The contents of that document, which was attempted to be pressed into service by the **R.SA.NO.990/09** **8** plaintiff, as discussed in paragraph 20 of the judgment of the trial court, indicated prima facie, it was bogus, forged and fabricated to claim the equitable relief canvassed by the plaintiff. The plaintiff had taken Ext.A2 sale deed from the 1[st] defendant on 15.2.2006, but, by the document produced by him as the copy of the reply notice of the 1[st] defendant the attempt show that she had given an unconditional undertaking to convey undertaking to convey the remaining plaint property also to the plaintiff. However, in that notice, which was stated to be sent on 17.2.2006, there was a statement to the effect that the 1[st] defendant was present before the registration office on 15.2.2006 for registering the sale, but, in view of the absence of the plaintiff, the registration could not take place. Ext.A2 sale deed was executed and registered by the 1[st] defendant on 15.2.2006. That circumstance indicated that a bogus document, as if it were a reply notice sent by the 1[st] defendant was attempted to be tendered in evidence to advance his case by the plaintiff. Conduct of the plaintiff as above is more than sufficient to hold that he was not entitled to the equitable relief applied for in his suit. **R.SA.NO.990/09** **9** 5. I do not also find any merit in the submissions made by the counsel that the courts below, both of them, have erred in exercising discretion in declining the relief of specific performance sought for by the plaintiff. Ext.A1 agreement of sale was proved by itself is not sufficient to enable the plaintiff to get the equitable relief of specific performance. Plaintiff had taken Ext.A2 sale deed in respect of 16.19 ares on 15.2.2006, after issuing Ext.A5 advocate notice. The trial court has taken note that nothing more was stated in Ext.A2 sale deed that any more property covered by Ext.A1 contract of sale still remained to be completed. Ext.A3 settlement deed was executed by the 1[st] defendant in favour of her son on 15.10.2005. Before taking Ext.A2 sale deed over 16.19 ares of land, it is seen, the plaintiff had obtained Ext.A4 encumbrance certificate, which clearly demonstrated the transfer made by the 1[st] defendant in favour of her son under Ext.A3 settlement deed. The case of the plaintiff that he was unaware of Ext.A3 settlement deed when he had taken Ext.A2 sale deed from the 1[st] defendant was thus shown to be unworthy of any merit. In the plaint the plaintiff has set up a **R.SA.NO.990/09** **10** case that in response to his advocate notice for completion of the contract under Ext.A1 over the plaint property, the 1[st] defendant had sent a reply requesting for his presence at the registration office on 28.2.2006. That reply was not produced, but, another document, referred to earlier, was tendered by him. When the encumbrance certificate collected by him (Ext.A4) disclosed that the plaint property had already been transferred under Ext.A3 settlement deed in favour of the 2[nd] defendant, the case advanced by him as above, needless to state, was unworthy of any merit. As rightly pointed out by the trial court, he has not placed any material before the court to show that he had sustained any damages due to the non-completion of Ext.A1 agreement of sale as agreed upon by the parties. Knowing fully well that Ext.A3 settlement deed had been executed over the plaint property by the 1[st] defendant in favour of her son, he had taken Ext.A2 sale deed over the balance property covered under Ext.A1 agreement of sale. The decision rendered in Prakash Chandra's case (supra), by the counsel, referred above and also the 'presumption' covered by sub clause (i) of Explanation of Section 10 of the Specific Relief Act, relied by the counsel, to **R.SA.NO.990/09** **11** impeach the correctness of the discretion exercised by the courts below in declining the equitable relief to the plaintiff, I find has no application at all in the present case since the plaintiff, by his own conduct, demonstrated his disentitlement for the relief sought for through the intervention of the court. There is no merit in the appeal, and it is dismissed. ## **S.S.SATHEESACHANDRAN JUDGE** prp **R.SA.NO.990/09 12**