Komath Satheeshan v. Abdul Khader Molodath and others

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE P.SOMARAJAN ``` ``` WEDNESDAY, THE 15[TH] DAY OF JUNE 2022 / 25TH JYAISHTA, 1944 ``` ``` FAO (RO) NO. 252 OF 2016 ``` ``` AGAINST THE ORDER/JUDGMENT IN AS 15/2013 OF SUB COURT, KANNUR OS 198/2012 OF PRINCIPAL MUNSIFF COURT, KANNUR ``` ## **`APPELLANT/1ST RESPONDENT/PLAINTIFF:`** ``` KOMATH SATHEESHAN AGED 34 YEARS, S/O. ACHUTHAN, TALPARAMBA AMSOM, KEEZHATTUR DESOM, P.O.TALIPARAMBA, TALIPARAMBA TALUK, KANNUR DISTRICT - 670 141 BY ADVS. SRI.MATHEW KURIAKOSE SRI.G.GIREESH ``` ## **`RESPONDENTS/APPELLANT & 2ND RESPONDENT/3RD PARTY & DEFENDANT:`** ``` 1ABDUL KHADER MOLODATH, AGED 47 YEARS,S/O. MOOSAN.C.K, MOLODATH HOUSE, PALLIPARAMBA, P.O.KOLACHERY, KANNUR DISTRICT, REPRESENTED THROUGH POWER OF ATTORNEY HOLDER PANACHIKKADAVATH ABDULLA, S/O. IBRAHIM, AGED 53 YEARS, PANACHIKKADAVATH, KAYARALAM AMSOM, KANDAKKAL DESOM, KANNUR DISTRICT - 670 602. 2PUTHIYAPURAYIL KUNHIRAMAN (DIED) AGED 86 YEARS S/O. LATE APPA, KAYARALAM AMSOM, KANDAKKAL DESOM, P.O. KANDAKKAI, MAYYIL(VIA), TALIPARAMBA TALUK, KANNUR DISTRICT - 670 602. ADDL.3NARAYANI M.P. AGED 60, D/O. KUNHIRAMAN PUTHIYA PURAYIL, W/O. NARAYANAN, KARIYIL HOUSE, KEEZHALLOOR, P.O. THALIPARAMBA, PIN-670141. ADDL.4OMANA M.P., AGED 58, D/O. KUNHIRAMAN PUTHIYA PURAYIL, NEAR KALAKENDRAM, P.O. KANDAKANI (VIA) MAYYIL, PIN-670602. ``` ``` FAO (RO) NO. 252 OF 2016 ``` ``` 2 ``` ``` ADDL.5SOBHANA.P.P, AGED 49, D/O. KUNHIRAMAN PUTHIYA PURAYIL, W/O. BALAKRISHNAN JOLSIER, KOLACHERYPARAMBU, P.O. KOLACHERRY, PIN-670601. ADDL.6MOHANAN M.P., AGED 46, S/O. KUNHIRAMAN PUTHIYA PURAYIL, KUTTIYERI P.O., PIN -670141. ADDL.7E.P.ROHINI, AGED 44, W/O. BABURAJ M.P, EKARATH PURAYIL, KOLACHERYPARAMBU, P.O. KOLACHERRY, PIN-670601 ADDL.8ARUN. M.P., AGED 24, S/O. BABURAJ M.P., C/O. E.P.ROHINI, EKARATH PURAYIL, KOLACHERYPARAMBU, P.O.KOLACHERRY-670601 ADDL.9ARYA M.P, AGED 21, D/O. BABURAJ M.P., C/O. E.P.ROHINI, EKARATH PURAYIL, KOLACHERYPARAMBU, P.O.KOLACHERRY-670601 (ADDITIONAL RESPONDENTS 3 TO 9 ARE IMPLEADED AS THE LEGAL REPRESENTATIVES OF DECEASED R2 AS PER ORDER DATED 15.06.2022 IN I.A.347/17) R1 BY ADVS. SMT.K.K.CHANDRALEKHA SRI.K.C.SANTHOSHKUMAR R3, R5-R7 & R9 BY ADV. SRI.U.BALAGANGADHARAN ``` ``` THIS FIRST APPEAL FROM ORDER - REMAND ORDER HAVING COME UP FOR HEARING ON 15.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` 3 ``` ``` FAO (RO) NO. 252 OF 2016 ``` ## **`JUDGMENT`** ``` It is so strange enough that the First ``` ``` Appellate Court remanded a decree for specific performance of a contract for sale for the purpose of impleading the pendente lite transferee without knowing the scope and ``` ``` ambit of Section 52 of the Transfer of ``` ``` Property Act and the legal impact thereof. ``` ``` 2. It is a suit for specific performance of Ext.A1 contract for sale between the ``` ``` plaintiff and the sole defendant, by which, the parties had agreed to sell the property for a total consideration of Rs.70,000/- and an amount of Rs.50,000/- was received by way of advance. It is pertaining to 14 cents of ``` ``` property. The agreement is dated 08.02.2012 ``` ``` and the period agreed upon was up to ``` ``` 15.03.2012. It is thereafter on 21.03.2012, ``` ``` 4 ``` ``` the present suit was instituted by the plaintiff for specific performance. The due execution of the agreement in question and the signature found affixed as that of the defendant was disputed and denied by the defendant. ``` ``` 3. In order to prove the due execution of the agreement, the plaintiff gave oral evidence directly as PW1 and examined two witnesses to the document PW2 and PW3, who ``` ``` are the daughter and son-in-law of the defendant. Nothing was pleaded in the written statement with respect to any enmity or animosity entertained by him as against his ``` ``` daughter PW2 and the son-in-law- PW3. No such ``` ``` case was advanced anywhere in the written statement and no pleading was raised by the ``` ``` defendant. But in the box, he had given a ``` ``` version that they are in inimical terms, that too, after the examination of daughter and ``` ``` FAO (RO) NO. 252 OF 2016 ``` **==> picture [8 x 9] intentionally omitted <==** ``` son-in-law as the witnesses to plaintiff. The credibility of PW2 and PW3 was tested by cross-examination and nothing was elucidated ``` ``` in order to reject their oral evidence. They have given oral evidence in tune with what is spoken by PW1, the plaintiff regarding the due execution of Ext.A1 agreement. In fact, they are the signatories to the document being the two witnesses to the execution of Ext.A1 agreement. PW2 categorically submitted that she had witnessed the due execution of ``` ``` Ext.A1 agreement by her father and stood as witness to the same. It was also made clear by her that it was pertaining to 14 cents of ``` ``` property belonged to the father and the agreement was entered into after a discussion. The son-in-law also gave oral ``` ``` evidence in tune with what is spoken by PW2 ``` ``` and also PW1. Nothing was brought out to discredit their evidence except the version given by Dw1, the defendant, that he was not ``` ``` FAO (RO) NO. 252 OF 2016 ``` **==> picture [8 x 9] intentionally omitted <==** ``` in good terms with the son-in-law and the daughter, for which no specific incident was ``` ``` either mentioned or let in evidence. ``` ``` 4.It is brought to the notice of this ``` ``` court that the entire sale consideration was ``` ``` deposited in furtherance of the decree ``` ``` granted by the trial court and nothing was ``` ``` brought to the notice of this court in order ``` ``` to show that the plaintiff was not ready and ``` ``` willing to perform his part of contract. On ``` ``` theotherhand,thebalancesale ``` ``` consideration comes to only Rs.20,000/-. No ``` ``` case was advanced that the plaintiff was not ``` ``` having capacity to collect such an amount during the relevant period. ``` ``` 5.The first appellate court without ``` ``` attending the merits and demerits of the case ``` ``` and without rendering adjudication on the ``` ``` disputed issues simply remanded the matter ``` ``` back to the trial court on the sole ground ``` **==> picture [8 x 9] intentionally omitted <==** ``` that thependente lite transferee was not included in the party array of the suit and thereby had overlooked the scope and ambit of ``` ``` Section 52 of the Transfer of Property Act. The doctrine oflis pendens embodied under Section 52 of the Transfer of Property Act based on the maxim “ut lite pendente nihil innovetur” is intended to give effect to the decree that may be passed in a litigation by a competent court and to avoid defeating the decree by transfer of the subject of the suit ``` ``` to third persons, who are not in the party array of the suit. The provision really ``` ``` engulfs the elements of principle ofres ``` ``` judicata,based on the principle that the decree that may be passed in a suit would ``` ``` bind on the persons litigating under any of the parties to the suit. Necessarily, the ``` ``` impact and the scope of Section 52 of the ``` ``` Transfer of Property Act should be and must be understood as not as a provision ``` ``` FAO (RO) NO. 252 OF 2016 ``` **==> picture [8 x 9] intentionally omitted <==** ``` prohibiting any transfer or alienation of the subject matter of the suit, but imposes a liability to the pendente lite transferee who would stand bound by the decree that may be passed. Hence, the pendente lite transferee can very well seek his impleadment as a party to the proceedings so as to contest the dispute involved effectively, but that does ``` ``` not mean that there is an obligation annexed to the plaintiff or the appellant as the case may be to implead thependente lite ``` ``` transferee as a co-defendant or co-respondent ``` ``` in the suit or appeal. No such mandate can ``` ``` be imposed either on the plaintiff or the ``` ``` appellant as the case may be under any of the ``` ``` provisions of law. Further, if it is ``` ``` permissible to impose such a liability or ``` ``` obligation on the plaintiff or the appellant ``` ``` in a suit or appeal, it would be destructive to the scope and ambit of Section 52 of the Transfer of Property Act and it would ``` ``` FAO (RO) NO. 252 OF 2016 ``` **==> picture [8 x 9] intentionally omitted <==** ``` virtually defeat what is actually intended by that section. The first appellate court has committed a very grave mistake by ordering remand for the purpose of impleading pendente lite transferee. ``` ``` 6. The jurisdiction vested with the first appellate court while ordering remand has been discussed and settled by this Court in Gopalakrishnan and Another v. Ponnappan ``` ``` and others [2021 (5) KHC 548] followed by the decision rendered by the Apex Court in ``` ## **`Bhairab Chandra Nandan v. Ranadhir Chandra`** ``` Dutta (1988 KHC 883). Hence, the order of ``` ``` remand cannot be sustained. The same will ``` ``` stand set aside. The parties shall appear before the first appellate court on 25/07/2022 to proceed further with the appeal. ``` ``` Theappealwillstandallowed ``` ``` accordingly. The Registry is directed to send a copy of this judgment along with a ``` ``` FAO (RO) NO. 252 OF 2016 ``` **==> picture [15 x 9] intentionally omitted <==** ``` copy of the impugned order to the Director (Academics), Kerala Judicial Academy for future guidance. ``` ``` Sd/- P.SOMARAJAN JUDGE ``` ``` SPV ```