Krishnapillai v. Prasannan Pillai and others (RFA 486 of 2015; RFA (Mis) 720 of 2014)

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE SATHISH NINAN** **TUESDAY, THE 30[TH] DAY OF JANUARY 2024 / 10TH MAGHA, 1945 RFA NO.486 OF 2015** **AGAINST THE JUDGMENT DATED 17.11.2014 IN OS 415/2012 OF SUB COURT, KARUNAGAPPALLY** **-----** ## **APPELLANT/PLAINTIFF:** KRISHNAPILLAI AGED 52 YEARS S/O.SANKARAPILLAI, KRISHNANAJALI, PADANAYARKULANGARA SOUTH, KARUNAGAPPALLY VILLAGE, KARUNAGAPPALLY TALUK, KOLLAM DISTRICT,BY POWER OF ATTORNEY HOLDER SMT. P.S.BEENA, AGED 47 YEARS, RESIDING AT KRISHNANJALI, PADAYANAYARKULANGARA SOUTH, KARUNAGAPPALLY VILLAGE, KARUNAGAPPALLY TALUK. BY ADVS. SRI.S.JAYAKRISHNAN (KARUNAGAPPALLY) SRI.D.SREEVALLABHAN ## **RESPONDENTS/DEFENDANTTS:** 1 PRASANNAN PILLAI, AGED 43 YEARS, S/O.DAMODHARAN PILLAI, KALATHIL VEETTIL, MUZHANGODI MURI, KALLELIBHAGOM, KARUNAGAPPALLY TALUK, KOLLAM DISTRICT-690 518. *2 RAJAGOPALAN NAIR, AGED 75 YEARS, RAJBHAVANAM, (KANNIMELVILA)MUZHANGODI MURI, KALLELIBHAGOM, KARUNAGAPPALLY TALUK, KOLLAM DISTRICT-690 518. **RFA NO. 486 OF 2015 -2-** 3 MANZOOR AGED 32 YEARS S/O.AHAMEDKUNJU, ANITHA DALE VEETTIL, KOZHIKODU VADAKKU MURI, AYANIVELILKULANGARA VILLAGE, KARUNAGAPPALLY TALUK-690518. 4 HARIKUMAR, AGED 38 YEARS, S/O.THANKAPPAN, THEKKEVEEDU, KUZHITHURA MURI, ALAPPADU VILLAGE, KARUNAGAPPALLY-690518. *5 K.P.GOPINATHANPILLAI, AGED 68 YEARS, S/O.PARAMESWARAN PILLAI, VRINDAVANAM, PULIYOOR VANCHI THEKKUM MURI, KALLELIBHAGOM VILLAGE, KARUNAGAPPALLY TALUK-690518. 6 BIJI JOSEPH, AGED 32 YEARS, (SAMUVEL JOSEPH) THARAYIL PUTHEN VEETTIL, PADA SOUTH, KARUNAGAPPALLY VILLAGE, KARUNAGAPPALLY TALUK-690518. 7 ANU KRISHNAN, AGED 33 YEARS, SREENILAYATHU, NEENDAKARA P.O., NEENDAKARA VILLAGE,KARUNAGAPPALLY TALUK-690518. 8 M.SALIM, AGED 40 YEARS, THATTUMVATHUKAL VEETTIL, EDAKULANGARA, KALLELIBHAGOM MURI, KALLELIBHAGOM VILLAGE, KARUNAGAPPALLY TALUK690518. 9 JOHNSON VAIDYAN, AGED 38 YEARS, S/O.KOCHUTHOMMAN VAIDYAN, THAIVILA THEKKETHIL, KADAPPA MURI, MYNAGAPPALLY VILLAGE, KARUNAGAPPALLY TALUK-690 518. 10 SMT.P.SREEDEVI AMMA, AGED 63 YEARS, W/O.GOPINATHAN PILLAI, VRINDAVANAM, PULIYOOR VANHI THEKKUM MURI, KALLELIBHAGOM VILLAGE, KARUNAGAPPALLY TALUK, KOLLAM DISTRICT. **RFA NO. 486 OF 2015 -3-** ## *** [RESPONDENT NOS.2 AND 5 ARE DELETED FROM PARTY ARRAY AT THE RISK OF APPELLANT VIDE ORDER DATED 20.10.2016 IN IA 1140/2016]** BY ADVS. SRI.P.U.SHAILAJAN (CAVEATOR) THIS REGULAR FIRST APPEAL(MISCELLANEOUS) HAVING COME UP FOR HEARING ON 30.01.2024, ALONG WITH RFA (MISC.) NO.720/2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE SATHISH NINAN TUESDAY, THE 30[TH] DAY OF JANUARY 2024 / 10TH MAGHA, 1945 RFA (MISC.) NO. 720 OF 2014** **AGAINST THE ORDER DT. 19.08.2011 IN IA 3166/2009 IN OS 217/2007** **-----** ## **APPELLANT/2ND RESPONDENT:** KRISHNA PILLAI, S/O.SANKARA PILLAI, KRISHNANJALI FROM LEELA SADANAM, PADANAYARKULANGARA, THEKKUM MURI, KARUNAGAPPALLY VILLAGE, KARUNAGAPPALLY TALUK, REPRESENTED BY THE POWER OF ATTORNEY HOLDER, P.S.BEENA, W/O.KRISHNA PILLAI, KRISHNANJALI FROM LEELA SADANAM, PADANAYARKULANGARA, THEKKUM MURI, KARUNAGAPPALLY VILLAGE, KARUNAGAPPALLY TALUK. BY ADVS. SRI.S.JAYAKRISHNAN SRI.D.SREEVALLABHAN ## **RESPONDENTS/PETITIONER AND FIRST RESPONDENT:** 1 PRASANNAN PILLAI, S/O.DAMODARAN PILLAI, KALATHIL VEEDU, KALLELIBHAGOM MURI, KARUNAGAPPALLY, KOLLAM DISTRICT - 690 518, REPRESENTED BY HIS POWER OF ATTORNEY HOLDER, V.RADHAKRISHNA PILLAI, S/O.VASUDEVAN PILLAI, RESIDING AT KRISHNA VILASAM, VAZHAYIL BHAGOM, PANMANA P.O., CHAVARA, KOLLAM - 691 583. RFA(MISC.) NO.720 OF 2014 -2- 2 P.SABU VARGHESE, S/O.PAPPACHAN, PUTHEN VEETTIL, PADANAYARKULANGARA, THEKKUM MURI, KARUNAGAPPALLY VILLAGE, KARUNAGAPPALLY TALUK, KOLLAM - 691 583. BY ADV P.U.SHAILAJAN(K/1061/1993) (BY ORDER) THIS REGULAR FIRST APPEAL(MISCELLANEOUS) HAVING COME UP FOR HEARING ON 30.01.2024, ALONG WITH RFA.486/2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **SATHISH NINAN, J.** **= = = = = = = = = = = = = = = = = = R.F.A. No.486 of 2015 & R.F.A. (Mis.) No.720 of 2014** **= = = = = = = = = = = = = = = = = = Dated this the 30[th] day of January, 2024** ## **J U D G M E N T** RFA 486 of 2015 arises from O.S. 415 of 2012. The suit is one for declaration of title and possession on finding that Ext.A1 Sale Deed is inoperative. The suit was dismissed by the trial court against which the plaintiff is in appeal. 2. RFA (Mis) No.720 of 2014 arises from the order in IA 3166/2009 in OS 217/2007 allowing a claim petition filed under Order 38 Rule 8 read with Order 21 Rule 58 of the Code of Civil Procedure. 3. According to the plaintiff, the first defendant who is his close relative, borrowed ` 14 lakhs from him. Towards security for repayment of the amount, the plaintiff was required to execute Ext.A1 in the nature of sale deed, in respect of the plaint schedule property. The plaintiff was made to believe that when R.F.A. No.486 of 2015 & R.F.A. (Mis) No.720 of 2014 -: 2 :- the amount is repaid with interest a deed of reconveyance would be executed. The plaintiff alleges that, but for the execution of Ext.A1 it was never intended to be operative or to be acted upon. The property remained in the possession of the plaintiff. It is on the said allegation that the suit has been filed. 4. The first defendant filed a written statement asserting his title and possession over the plaint schedule property on the strength of Ext.A1 Sale Deed. The allegation of the plaintiff that Ext.A1 was executed only as a security and was not intended to be acted upon, was denied. The alleged agreement to execute a reconveyance deed was also denied. 5. The trial court held that the remedy of the plaintiff was to sue for specific performance of the alleged agreement for re-conveyance and that the mere suit for declaration is not maintainable. Accordingly the suit was dismissed. R.F.A. No.486 of 2015 & R.F.A. (Mis) No.720 of 2014 -: 3 :- 6. As regards the claim petition, one Prasannan Pillai who is the first respondent in RFA (Mis.) No.720/2014, filed a suit for money against the plaintiff in OS 415/2012-the appellant in these appeals, as defendant. In the suit, the very same property was attached alleging it to be that of the appellant. Thereupon the defendant in OS 415/2012 filed a claim petition on the strength of Ext.A1 Sale Deed and sought for lifting of attachment. The court upheld Ext.A1 and allowed the claim petition thus lifting the order of attachment. The said order is under challenge in RFA (Mis.) No.720/2014. 7. The issue in RFA 486/2015 and in RFA (Mis.) No.720/2014 are one and the same viz., the validity of Ext.A1. Hence these appeals are being heard and disposed of together. R.F.A. No.486 of 2015 & R.F.A. (Mis) No.720 of 2014 -: 4 :- ## 8. I have heard learned counsel on either side. ## 9. The point that arises for determination is **“** _Was the trial court right in having held that, without seeking a relief for specific performance, the mere suit for declaration of title on finding that Ext.A1 is inoperative, is not maintainable ?_ _**”**_ ## 10. In _**Ramlal and Anr. v. Phagua and Ors 2006(1) SCC 168,**_ the Apex Court was dealing with a case with similar set of facts. The plaintiff therein, on obtaining a loan from the defendant executed a sale deed as security. The parties also executed an agreement for re-conveyance to be effected on repayment of the loan amount. The suit was filed for a declaration that the sale deed was a nominal one and that the plaintiff continued to be the owner of the property. The trial court and the first appellate court negatived the plaintiff's contention. The High Court in second appeal interfered with the judgment and held that, the sale deed was executed only R.F.A. No.486 of 2015 & R.F.A. (Mis) No.720 of 2014 -: 5 :- as a security and did not convey any title over the property. The said judgment was under challenge before the Apex Court. Upholding the judgment of the High Court, the Apex Court held :- _“In our opinion, the High Court has rightly come to the conclusion that the sale deed in question was not in fact a real sale deed but was by way of surety and thus did not pass any right, title or interest in favour of the vendee …..”_ _“..... It did not pass any right, title or interest in her favour and in all probabilities the transaction was only by way of loan and the so called sale deed executed by the respondent/plaintiff in favour of Mst. Hasrat Bi was nothing but by way of surety.”_ Holding that the document was never intended as a sale deed and that no interest passed thereunder, the title of the plaintiff was declared. 11. In _**George v. Annakutty 2017 (4) KLT 553**_ , the plaintiff sought for a declaration that Ext.A1 Sale Deed therein was a sham and void document. It was contended that it R.F.A. No.486 of 2015 & R.F.A. (Mis) No.720 of 2014 -: 6 :- was executed at the time of availing a loan and agreeing that a re-conveyance would be executed on repayment of the loan amount. A Division Bench of this Court held that, it is open for the party to contend that the document is a fictitious or a nominal transaction which was never intended to be acted upon, and also that the transaction between the parties was an entirely different one. On the evidence this Court found that the document was never intended to take effect as a sale. Accordingly the declaration sought was granted but with a further direction to repay the loan amount with interest. The judgment was challenged before the Apex Court in SLP(C) No.316-17/2018. The same was dismissed by the Apex Court on 15.01.2018. 12. _**Nani and Ors. v. Surendran and Ors. 2018 SCC OnLine Ker**_ _**1355**_ was a case wherein a sale deed was executed as security for the loan amount, and a re-conveyance was to be executed on repayment of the amount with interest. R.F.A. No.486 of 2015 & R.F.A. (Mis) No.720 of 2014 -: 7 :- Therein also this Court held that it is open for the party to contend and prove that the sale deed executed is a fictitious or a nominal document. 13. Therefore, on the above discussions it is evident that it is open for the plaintiff to contend and prove that the sale deed was nominal, never intended to be acted upon, and that there had been no passing of title or interest thereunder. It is open for him to show that it was never intended to operate as a sale deed. The suit could not be dismissed for the reason that the remedy of the plaintiff was to sue for specific performance of the alleged agreement for re-conveyance. The dismissal of the suit is thus, liable to be interfered with. 14. The trial court has not considered the evidence on record with regard to the contention of the plaintiff that Ext.A1 was only a nominal document, not intended to be acted upon. The evidence is to be appreciated in R.F.A. No.486 of 2015 & R.F.A. (Mis) No.720 of 2014 -: 8 :- extenso to enter a finding thereon. The suit having been dismissed for the reason of defective frame and the same having been found to be liable to be interfered with, it is only proper that the trial court considers the contention on its merits. Since the matter is being remitted back it is deemed appropriate that both sides be granted opportunity to adduce further evidence. It is thus ordered having due regard to the fact that, either side have sought to produce before this Court additional evidence by way of applications under Order XLI Rule 27 of the Code of Civil Procedure. It is open for the parties to have the same produced before the trial court. 15. As regards R.F.A.(Mis.) No.720 of 2014, as noticed, the same arises from a claim petition. In terms of Order XXI Rule 58, the question of title is in issue therein also. The order in a claim petition has the force of a decree. There is a long delay of 1063 days in R.F.A. No.486 of 2015 & R.F.A. (Mis) No.720 of 2014 -: 9 :- filing the appeal. The appellant was exparte in the suit. Consequently there was no appearance for him in the claim petition also. The order impugned was passed on 19.08.2011. His son committed suicide on 23.12.2012. His aged father who was under the care of the appellant, was suffering from various ailments and died on 09.08.2014. The issue involved in both these proceedings being one and the same, it is only proper that the suit and the claim petition be considered and disposed of together. The order impugned in RFA (Mis.) No.720/2014 is liable to be set aside. Resultantly, RFA 486 of 2015 and RFA (Mis) No.720/2014 are allowed. The decree and judgment in O.S. 415/2012 of the Sub Court, Karunagappally, and the order in IA 3166/2009 in OS 217/2007 of the Sub Court, Kollam, are set aside. The suit and the I.A. are remanded back to the trial court for fresh disposal. The I.A. 3166/2009 shall be tried and disposed of jointly along R.F.A. No.486 of 2015 & R.F.A. (Mis) No.720 of 2014 -: 10 :- with OS 415/2012. To enable the same, OS 217/2007 of the Sub Court, Kollam, along with I.A. 3166/2009 will stand withdrawn and transferred to the Sub Court Karunagappally. Parties are to be afforded opportunity to adduce further evidence. The court fee paid on the memorandum of appeal in RFA 486 of 2015 shall be refunded to the appellant. Parties to appear before the Sub Court, Karunagappally on 26.02.2024. Registry to forward a copy of this judgment to Sub Court, Kollam and Sub Court, Karunagappally. Sd/- **SATHISH NINAN JUDGE** kns/- //True Copy// P.S. to Judge R.F.A. No.486 of 2015 & R.F.A. (Mis) No.720 of 2014 -: 11 :- The sentence “As regards the claim petition, one Prasannan Pillai who is the first respondent in RFA (Mis) No.720/2014, filed a suit for money against the plaintiff in OS 415/2012-the appellant in these appeals, as defendant.”, in Paragraph 6 page 3 of judgment, is corrected as “As regards the claim petition, one Sabu Varghese, who is the second respondent, in RFA (Mis.) No.720/2014, filed a suit for money against the plaintiff in O.S.415/2012-the appellant in these appeals, as defendant.” Sd/- Joint Registrar ## **APPENDIX OF RFA 486/2015** ## RESPONDENT ANNEXURES |ANNEXURE V|THE CERTIFICATE WITH NO.52/24 DATED 19.1.2024| |---|---| ||ISSUED BY THE VILLAGE OFFICER, KARUNAGAPPALLY| |ANNEXURE W|THE CERTIFICATE DATED 31.7.2017 ISSUED BY THE| ||VILLAGE OFFICER, KARUNAGAPPALLY| |ANNEXURE X|THE LAND TAX RECEIPT FOR THE YEAR 2007 DATED| ||22.6.2007 ISSUED BY THE VILLAGE OFFICER,| ||KARUNAGAPPALLY| |ANNEXURE Y|TRUE LAND TAX RECEIPT FOR THE YEAR 2008, 2009| ||DATED 25.5.2009 ISSUED BY THE VILLAGE| ||OFFICER, KARUNAGAPPALLY| |PETITIONER ANNEXURES|| |ANNEXURE A1|THE TRUE COPY OF THE PHOTOSTAT OF PARTITION| ||DEED NO. 2034/1986 DATED 18.07.1986 OF THE| ||SUB REGISTRAR OFFICE, KARUNAGAPPALLY.| |ANNEXURE A2|THE CERTIFIED COPY OF THE PARTITION DEED NO.| ||2034/1986 DATED 18.07.1986 OF THE SUB| ||REGISTRAR OFFICE, KARUNAGAPPALLY.| |ANNEXURE A3|TRUE COPY OF LAND TAX RECEIPT FOR THE| ||PERIODOF 2004-2005 DATED 10.12.2004 ISSUED BY| ||VILLAGE OFFICER, KARUNAGAPPALLY.| -----