Kunjipilla v. Haridas and others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE A.HARIPRASAD** **WEDNESDAY, THE 30TH DAY OF MAY 2018 / 9TH JYAISHTA, 1940** **SA.No. 554 of 1999 (G)** **AGAINST THE JUDGMENT AND DECREE DATED 05-12-1998 IN AS 124/1992 of PRL. SUB COURT, IRINJALAKUDA.** **AGAINST THE JUDGMENT AND DECREE DATED 30-09-1991 IN OS 1717/1988 of PRL. MUNSIFF COURT, IRINJALAKUDA.** ## **APPELLANT/APPELLANT/DEFENDANT :** **KUNJIPILLA, SON OF IMMATTIPARAMBIL NEELAKANDAN, CHIRANGARAYIL, KORATTY DESOM, KIZHAKKUMMURI VILLAGE, MUKUNDAPURAM TALUK.** - **BY ADVS.SRI.KN.NARAYANA PILLAI,** - **SRI.VISWANATHAN.P, SRI.DINESH.R.SHENOY, SRI.T.N.MANOJ. SRI.S.GOVINDAN.** ## **RESPONDENTS/RESPONDENTS/PLAINTIFFS :** **1. HARIDAS, SON OF THARAYIL VASU, KIZHAKKE CHALKKUDY VILLAGE, DESOM, MUKUNDAPURAM TALUK.** **2. SANKARANKUTTY VAIDYAR,(DIED) S/O PAYAKKAL KRISHNA MENON, -DO- -DO-** - **LRS IMPLEADED. THE LEGAL REPRESENTATIVES OF DECEASED RESPONDENT NO.2.** - ***ADDL.R3. THANKAMMA, AGED 55, AGED 55, W/O LATE SHANKARANKUTTY VAIDYAR, PAYAKKAL HOUSE, KANNAMPUZHA ROAD,E.CHALAKUDY.** - ***ADDL.R4. REMA, AGED ABOUT 35, D/O 3RD RESPONDENT, PAYAKKAL HOUSE, KANNAMPUZHA ROAD, E.CHALAKUDY.** - ***ADDL.R5. RAJI, AGED 32, D/O 3RD RESPONDENT, PAYAKKAL HOUSE, KANNAMPUZHA ROAD, E.CHALAKUDY.** - ***ADDL.R6. RADHIKA, AGED ABOUT 22, D/O 3RD RESPONDENT, PAYAKKAL HOUSE, KANNAMPUZHA ROAD, E.CHALAKUDY.** - **THE ADDITIONAL RESPONDENTS 3 TO 6 ARE IMPLEADED AS THE LEGAL REPRESENTATIVES OF DECEASED 2ND RESPONDENT AS PER ORDER DATED 06-12-2001 IN C.M.P NO.1835 OF 2000.** - **R1 & ADDL.R3 TO 5 BY ADVS.SRI.S.V.BALAKRISHNA IYER (SR.)** - **& SRI.P.B.KRISHNAN** **THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 30-05-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## A.HARIPRASAD, J. -------------------------------------- ## S.A No.554 of 1999 -------------------------------------Dated this the 30th day of May, 2018 ## J U D G M E N T This appeal, filed at the instance of the defendant in a suit for declaration and recovery of possession of property, raises the following substantial questions of law : - a. Whether by the provisions of Section 92 of the Indian Evidence Act, the parties to a registered sale deed is in all circumstances precluded from pleading and proving any agreement at variance to the stipulations in the registered deed ? b. Whether in a case where it is proved that possession has not passed to the vendee, the vendor is not entitled to cancel the earlier deed by which title is purported to be transferred ? S.A No.554 OF 1999 2 - c. Whether by not challenging and setting aside the registered cancellation deed the plaintiff is precluded from getting his title and possession over the plaint schedule property declared ? 2. Heard the learned counsel for the appellant and the learned Senior counsel appearing for the respondent. 3. Short facts are as follows : Plaintiff/respondent obtained assignment of the property from the defendant/appellant as per Ext.B30 (Ext.A1) in the year 1986. According to the plaint averments, the appellant had delivered possession of the property to the plaintiff and Ext.B30 evidenced an outright assignment. On account of the fact that the appellant and the respondent were closely known to each other, the respondent entrusted the original assignment deed to the appellant for paying basic tax in the village office. Thereafter, S.A No.554 OF 1999 3 the appellant cancelled the document and obliterated the boundary line separating the plaint schedule property and the property remaining with the appellant. It is the allegation that the appellant has trespassed upon the property of the plaintiff and therefore the suit was filed. 4. The appellant filed a written statement contending that Ext.B30 (Ext.A1) is a sham document, which was not intended to be acted upon and in fact not acted upon. The appellant and respondent including twenty others were partners in a firm by name Dhanalakshmi Finance at Chalakkudy. Later, the appellant became the President of a Co-operative Bank at Koratty. Since there was some legal bar in his continuing as President of the Co-operative society and a partner in the firm, he intended to retire from the partnership. The respondent insisted that the appellant should execute an assignment deed in respect of the plaint schedule property for securing certain amounts taken by him from the partnership S.A No.554 OF 1999 4 firm. As insisted by the respondent, the appellant executed Ext.B30 with an intention to create a security only and no title was intended to be passed on to the respondent. After clearing the liability, the appellant cancelled the document. The respondent has no right to get any reliefs claimed in the suit. 5. Exts.A1 and A2 were marked on the side of the respondent and Exts.B1 to B30 on the side of the appellant. Exts.C1 and C2 were the plan and report submitted by the Commissioner. 6. The court below, after considering the materials on record, found that Ext.B30 is an outright assignment deed and the contention of the appellant that it is a sham document is not correct. Feeling aggrieved, the appellant preferred a first appeal before the Court of Subordinate Judge, Irinjalakuda as A.S No.124 of 1992. After re-appreciating the evidence, the learned Sub Judge dismissed the appeal confirming the S.A No.554 OF 1999 5 findings of the trial court. 7. Learned counsel for the appellant strongly contended that reasoning of the lower appellate court that the contentions of the appellant are hit by Section 92 of the Evidence Act is unsustainable in law. According to him, there are ample evidence on record - both oral and documentary - to show that Ext.B30 was not intended to be operated as a sale deed. Reliance is placed on the Commissioner's report to raise a contention that there was no demarcating feature on ground to separate the properties covered by Ext.B30 from rest of the properties belonging to the appellant. According to the learned counsel, Ext.30 happened to be executed in a peculiar circumstances where the appellant was compelled to furnish security for his liability towards the firm as he was finding it difficult to be a partner in the firm and President of a Co-operative Society. In order to save this situation, the appellant executed Ext.B30 and after S.A No.554 OF 1999 6 clearing off the liability, he asked the respondent to re-convey the property, which he did not do. Learned counsel further contended that the appellant does not rely on the cancellation deed to establish his case. Instead, it is contended, the appellant can show from the attending circumstances that there was no concluded sale. 8. Learned counsel for the appellant relied on a Division Bench decision of this Court in George v. Annakutty ( 2017 (4) K.L.T 553), which deals with bar under Section 92 of the Evidence Act. In this context, it is relevant to note that the law declared by the Supreme Court in Gangabai v. Chhabubai ((1982) 1 SCC 4) , is also to be considered in this context. The Supreme Court held thus : "The bar imposed by Section 92(1) applies only when a party seeks to rely upon the document embodying the terms of the transaction and not when the case of a S.A No.554 OF 1999 7 party is that the transaction recorded in the document was never intended to be acted upon at all between the parties and that the document is a sham. Such a question arises when the party asserts that there was a different transaction altogether and what is recorded in the document was intended to be of no consequence whatever. For that purpose oral evidence is admissible to show that the document executed was never intended to operate as an agreement but that some other agreement altogether, not recorded in the document, was entered into between the parties.” The same principle was followed by the Division Bench decision of this Court in George 's case (supra). 9. Learned Senior counsel appearing for the respondent contended that the appellant cannot be heard to say that Ext.B30 is a sham document. Relying on the candid admissions by the appellant when S.A No.554 OF 1999 8 examined as DW1 at the trial, the learned Senior counsel contended that the appellant has set up a case that even before execution of Ext.B30, there was an oral agreement between the appellant and respondent to re-convey the property after it was sold to the respondent. Ext.B28 document relied on by the learned counsel for the appellant also shows an indication of a concluded sale through Ext.B30. DW1 (appellant) in unequivocal terms deposed that there was an oral agreement between the parties to re-convey the properties included in Ext.B30 after clearing off the liability. Admittedly, no legal action was taken by the appellant to enforce that agreement. 10. This Court in Moosa v. Moiden (2001(1) KLT 183) has considered a similar situation and observed that remedy of a person raising such a claim is only to file a suit for specific performance of the oral agreement said to have been made between the parties either before or S.A No.554 OF 1999 9 after execution of the disputed document. Admittedly, in this case, no step had been taken by the appellant to enforce the oral document. 11. In this context, the contention regarding Section 92 of the Evidence Act, does not assume any importance. It is true that the appellant could have established his contention that Ext.B30 is a sham document in a suit or at least in a counter claim. That opportunity could have been availed of by him since he raised a contention that there was an agreement to re-convey the property on fulfillment of certain conditions. Such an agreement pre-supposes a concluded sale, otherwise there was no occasion for them to enter into an agreement in that fashion. So, without emphasizing on Section 92 of the Evidence Act, it can be seen that the defence in the written statement and oral testimony of the appellant as DW1 are incongruous to one another. Therefore, the courts below, on facts, were justified in holding that the challenge against Ext.B30 raised by S.A No.554 OF 1999 10 the appellant cannot be sustained. In the light of the above discussion, I find that the questions of law raised can be decided only against the appellant. In the result, the appeal is dismissed. All pending interlocutory applications will stand dismissed. A. HARIPRASAD, JUDGE. amk S.A No.554 OF 1999 11 A.HARIPRASAD, J. ---------------S.A No.554 OF 1999 -----------------Dated 30-05-2018 J U D G M E N T