Mohamed Kasim Pillai and Ayisha Beevi (suppl. appellants) v. Vijayakumar (deceased) and Shobha and Addl. Respondents, RFA No. 300 of 2013

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR** **THURSDAY, THE 19TH DAY OF NOVEMBER 2020 / 28TH KARTHIKA, 1942** **RFA.No.300 OF 2013** **AGAINST THE JUDGMENT AND DECREE DATED 29-08-2008 IN O.S.NO. 56/2006 OF SUB COURT,NEYYATTINKARA** ## **APPELLANTS/DEFENDANTS:** **1 MOHAMED KASIM PILLAI, AGED 61 YEARS, S/O ISMAIL PILLAI, CHERUVILAKATHU VEEDU, VELAVOOR DESOM, KOLIYAKODE VILLAGE, KOLLAM DISTRICT.** **2 AYISHA BEEVI, AGED 59 YEARS, W/O KASIM PILLAI, -DO- -DO-.** ## **SUPPLEMENTAL APPELLANTS:** |**3**|**A.SHAILA BEEVI,**| |---|---| ||**AGED 41 YEARS,**| ||**D/O MOHAMMED KASIM PILLAI,**| ||**CHERUVILAKATH VEEDU,**| ||**VELAVOOR DESOM,**| ||**KOLIYAKODE VILLAGE,**| ||**KOLLAM DISTRICT.**| |**4**|**SAJITHA BEEVI,**| ||**AGED 39 YEARS,**| ||**-DO- -DO-**| |**5**|**SHIBBUDDIS,**| ||**AGED 37 YEARS,**| ||**S/O MOHAMED KASIM PILLAI,**| ||**-DO- -DO-**| |**6**|**SHARJAIL,**| ||**AGED 26 YEARS,**| ||**S/O MOHAMED KASIM PILLAI,**| ||**-DO- -DO-**| R.F.A.No.300/2013 -:2:- **2ND APPELLANT DIED ON 27.10.2009.THE SUPPLEMENTAL APPELLANTS 3 TO 6 ARE HER LEGAL HEIRS.** **BY ADV. SRI.K.R.AVINASH (KUNNATH)** ## **RESPONDENTS/PLAINTIFFS:** |***1**|**VIJAYAKUMAR(DIED),**| |---|---| ||**AGED 52 YEARS,**| ||**S/O SIVASANKARAN,**| ||**RESIDING AT 'USHUS',**| ||**HOUSE NO.PP VI/694,**| ||**THANNIVILA,**| ||**PALLICHAL VILLAGE,**| ||**NEYYATTINKARA TALUK,**| ||**TRIVANDRUM 695123.**| |**2**|**SHOBHA,**| ||**AGED 48 YEARS,**| ||**W/O VIJAYAKUMAR,**| ||**-DO- -DO-**| |**ADDL.R3 **|**AJAY GHOSH,**| ||**AGED 30 YEARS**| ||**S/O VIJAYAKUMAR,**| ||**'USHUS,HOUSE NO.PP VI/694,**| ||**THANNIVILA,**| ||**PALLICHAL VILLAGE,**| ||**NEYYATINKARA,**| ||**TRIVANDRUM.**| |**ADDL.R4 **|**ANUJA GHOSH,**| ||**AGED 28 YEARS,**| ||**D/O VIJAYAKUMAR,**| ||**'USHUS',HOUSE NO.PP VI/694,**| ||**THANNIVILA,**| ||**PALLICHAL VILLAGE,**| ||**NEYYATINKARA,**| ||**TRIVANDRUM**| |**ADDL.R5 **|**ARJUN GHOSH,**| ||**AGED 26 YEARS,**| ||**S/O VIJAYAKUMAR,**| ||**'USHUS', HOUSE NO.PP VI/694,**| ||**THANNIVILA,**| ||**PALLICHAL VILLAGE,**| R.F.A.No.300/2013 -:3:- **NEYYATINKARA, TRIVANDRUM.** **LRS OF DECEASED RESPONDENT ARE IMPLEADED AS ADDL R3 TO 5 VIDE ORDER DATED 21.11.2017 IN IA 1969/2017. R1-2 BY ADVS. SRI.NEMOM V.SANJEEV SRI.T.K.VENUGOPALAN SRI.V.V.VARGHESE SRI.SHIBU JOSEPH** **THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 16-11-2020, THE COURT ON 19-11-2020 DELIVERED THE FOLLOWING:** R.F.A.No.300/2013 -:4:- ## Dated this the 19[th] day of November,2020 ## J U D G M E N T The defendants in O.S.No.56/2006 before the Sub Court, Neyyattinkara, are the appellants. They are husband and wife. 2. Granting all the reliefs sought by the plaintiffs, the court below decreed the suit ordering the appellants to reconvey the plaint schedule property and execute sale deed in favour of the plaintiffs on acceptance of loan amount of Rs.1,82,120/- with 10% interest. Title and possession of suit property were also declared in favour of plaintiffs as sought for. In addition to these two reliefs, the appellants were permanently prohibited from trespassing into the plaint schedule property and building therein. However, it was found that there was no need for setting aside Ext.A4 sale deed executed in the name of the appellants to be null and void. 3. Being aggrieved by the judgment and decree, the defendants have come up in appeal. 4. The plaintiffs are also husband and wife. R.F.A.No.300/2013 ## -:5:- The first plaintiff is an Electrical Technician employed in Abu Dhabi. The first defendant is also employed in Abu Dhabi and was conducting an Air Condition repairing shop there in 1984. The wives of both parties are staying in their homeland in India. 5. The plaintiffs' case is that the first plaintiff was in urgent need of some money for transferring his visa and approached the first defendant for a loan. The first defendant agreed to lend money subject to first plaintiff executing a sale deed in respect of plaintiffs' property in the name of second defendant in India and handing over two cheques as security for repayment of loan. First plaintiff offered to execute the sale deed provided the appellants would reconvey the property on acceptance of loan amount with 10% interest. The parties agreed upon the mutual conditions set forth between them and accordingly, on 11.06.2004, the plaintiffs executed Ext.A4 sale deed in the name of second defendant and delivered original title deed. 6. Plaintiffs proceed to state that as agreed, the first defendant, immediately the next day handed over Ext.A7 cheque dated 12.06.2004 for a sum of R.F.A.No.300/2013 ## -:6:- 5,000/-Dirhams, a portion of the loan amount towards initial payment. First plaintiff immediately handed over two undated cheques towards security one drawn on a bank in Abu Dhabi and another drawn on a bank in India. Immediately thereafter within a few weeks, the first defendant delivered five cheques in the name of first plaintiff and paid a gross amount of Rs.1,82,120/- towards loan amount. 7. Plaintiffs approached the appellants for reconveyance of property in the month of February,2006. But appellants refused to re-convey the property questioning the right of the plaintiffs. Plaintiffs contend that they are in possession of the plaint schedule 08 cents of property and the building therein. According to them, no part of consideration was received by them, though receipt of Rs.50,000/- was recorded in Ext.A4. They are paying taxes and charges in their own names and property has not been mutated in the name of the second defendant. According to them, pursuant to the oral agreement for reconveyance of property, appellants are liable to execute sale deed in favour of the plaintiffs. R.F.A.No.300/2013 -:7:- 8. One of the contentions raised is that Ext.A4 is a sham document and therefore, void under law. It was alleged that appellants made attempts to trespass upon the land and evict the plaintiffs from building. For all these reasons, plaintiffs sought Ext.A4 to be set aside as void and for declaring title and possession over plaint schedule property and in the alternative, for reconveyance thereof in their names on acceptance of the loan amount with interest. 9. Appellants in their joint written statement questioned the right of plaintiffs to a decree for reconveyance. According to them, first plaintiff approached first defendant offering to sell his land for reasonable consideration for his personal needs which the first defendant agreed to purchase. First defendant offered to pay an amount of Rs.4,60,000/towards the price of the property and on the date of sale deed itself, second defendant and his son-in-law entrusted an amount of Rs.4,00,000/- with the second plaintiff at her house. Balance amount of Rs.60,000/- was paid jointly by cheque and cash by first defendant directly to the first plaintiff at R.F.A.No.300/2013 ## -:8:- Abu Dhabi. According to appellants, there was no agreement to reconvey the property and delivery of cheques in the name of first plaintiff was made in connection with personal borrowing at the request of the first plaintiff. It was also stated that one of the cheques drawn for Rs.3,00,000/- by first plaintiff in the name of first defendant was in discharge of debt incurred by first plaintiff at Abu Dhabi. Contending Ext.A4 to be valid under law, prayer for decree for declaration of title as well as reconveyance was opposed. 10. The court below examined plaintiffs 1 and 2 as PWs.1 and 2 and scribe in Ext.A4 as PW3. On plaintiffs' side, Exts.A1 to A22 were marked. 11. No documents were tendered on the side of the appellants and the first defendant was examined as DW1. An Advocate Commissioner who was deputed for ascertaining the actual occupancy of the building in plaint schedule property was examined as CW1 and his report was admitted in evidence as Ext.C1. 12. On a consideration of the entire evidence on record, the court below held that Ext.A4 sale deed was executed in favour of second defendant only R.F.A.No.300/2013 ## -:9:- as security for repayment of money borrowed by first plaintiff and therefore, appellants were liable to reconvey the property in favour of the plaintiffs. Ext.A4 was, however, held to be not void. Nevertheless a decree declaring title and possession was issued in favour of the plaintiffs. 13. There is some incongruity in the findings of the court below to the extent it declared the title of plaintiffs to suit property and having simultaneously ordered reconveyance of property also. The question of reconveyance of property would have arisen only if conveyance of title in favour of appellants under Ext.A4 was acknowledged. Therefore, declaration of title and ordering of reconveyance are mutually contradictory. In Moosa vs Moideen reported in 2001 KHC 72 , a view was taken by a learned Judge of this Court that plea for reconveyance presupposes acknowledgement of title in the transferee defendant and without title being so admitted, plaintiff may not be justified in seeking a decree for reconveyance of the property. It was also held that a suit for reconveyance has to be framed in the same manner as to a specific R.F.A.No.300/2013 ## -:10:- performance of contract in compliance with the provisions of the Specific Reliefs Act, 1963. 14. Therefore, the material questions that arise for consideration in this appeal are: i.Whether first plaintiff received loan from first defendant and executed Ext.A4 sale deed as a security for repayment of loan? ii. Whether the appellants while taking Ext.A4 in the name of second defendant agreed to reconvey the property upon discharge of loan amount with 10% interest? 15. Once these two points are answered in favour of the plaintiffs, then there will be no reason to interfere with the decree for reconveyance granted by the court below. The court below already held that Ext.A4 is not null and void and refused to set aside the sale deed as void. Therefore, the question as to whether Ext.A4 is sham does not survive for consideration. 16. The sole question that remains for consideration is whether the appellants are liable to reconvey the property as per the purported oral agreement for reconveyance as entered into between first plaintiff and first defendant. R.F.A.No.300/2013 ## -:11:- 17. The burden to prove that plaintiffs executed Ext.A4 as security for loan transaction is heavily on them. Unless plaintiffs can show that there were loan transactions between parties, the very foundation for a decree for reconveyance would be lost. Ext.A4, as it appears from the recitals, is a pucca sale deed which contains all usual terms of transfer of property and receipt of consideration. Nowhere in Ext.A4, there is any mention of agreement for reconveyance of property. Ext.A4 was not executed as a mortgage by conditional sale within Section 58(c) of the Transfer of Property Act, 1882. That however does not debar plaintiffs from showing that what was intended between parties was a different transaction though Ext.A4 represented itself to be a pucca sale deed. Section 92 of the Indian Evidence Act,1872(for short, 'the Act') also does not bar the plaintiffs from putting forth such a contention. Plaintiffs being uninhibited by any of the clauses in Section 92 of the Act, can show that there was already an oral agreement to reconvey plaint schedule property contemporaneous with execution of Ext.A4 agreement. This legal position R.F.A.No.300/2013 ## -:12:- is clear from George and Another v. Annakutty and Others [2017(4) KHC 742] and Kavukutty and Another v. Baby and Others [2015(5) KHC 642]. 18. Except the testimonies of PWs.1 and 2, the husband and wife respectively and also circumstances on record, there is no independent evidence as to existence of any oral agreement for reconveyance of property made by the appellants. DW1, the first defendant admitted that he had issued Ext.A7 series cheques in the name of first plaintiff drawn on a bank in Abu Dhabi for a gross amount of Rs.1,82,120/-. While plaintiffs submit that this amount represented loan received by him from first defendant, the contrary case set up by appellants is that they were independent transactions evidencing personal borrowings made by first plaintiff from first defendant after execution of Ext.A4 sale deed out of their cordial relationship. The primary enquiry is, therefore, as to which of these contentions is probable. 19. It is proved by convincing evidence that the appellants have not till date got possession of suit property which consists of a residential R.F.A.No.300/2013 ## -:13:- building also despite the sale deed having been taken in the name of second defendant on 11.06.2004. Though appellants have contended that mutation was effected, no evidence was produced to prove transfer of registry. On the other hand, there is clear evidence from Ext.A8 residential certificate, Exts.A12 and A13 electricity and telephone bills and other records that even subsequent to 11.06.2004, the plaintiffs have been occupying the building exclusively. The Advocate Commissioner, who visited the property after the suit also found that plaintiffs alone were in occupation of the building. No objection was filed to Ext.C1 report, even though appellants have put up a case in the course of examination of DW1 that plaintiffs made forcible entry during the pendency of lis after dispossessing the appellants. This contention is quite unconvincing for two reasons, namely, none of the appellants has made any police complaint against alleged forcible entry and no steps have been taken so far pursuant to Ext.A4 for getting possession of suit premises. 20. Going by the nature of contentions raised R.F.A.No.300/2013 ## -:14:- in the written statement also, it is visibly clear that appellants did not get possession of the suit property. What is averred in the written statement is that plaintiffs being vendors of the suit property were bound to have handed over possession but they cheated the vendee. The court below also on consideration of evidence before it was of the view that appellants did not get possession. I fully agree with this view. This is one of the circumstances which probabilises the case of the plaintiffs that Ext.A4 was not intended to be executed as a pucca sale deed; but only as a security for loan received from the first defendant. 21. The court below has expressed serious doubt about parting of consideration for the property on the same date of Ext.A4. Recitals in the deed show that property was sold for a consideration of Rs.50,000/-. There is no mention in Ext.A4 that the consideration was paid on the same day. What is mentioned is that the consideration was already paid in advance. This contradicts the evidence given by DW1 that Rs.4,00,000/- was paid on 11.06.2004 at the house of second plaintiff in Thiruvananthapuram R.F.A.No.300/2013 ## -:15:- through his son-in-law and his wife. PW3, scribe also testified that on Ext.A4 date, there was no parting of consideration either at the scribe's office or Sub Registry. I do not find any reason to disbelieve PW3. 22. DW1 testified that balance amount of Rs.60,000/- was paid by him directly to first plaintiff by Ext.A6 cheque drawn for 5,000/- Dirhams and balance 173/- Dirhams by cash. This version of DW1 looks to be rather quite unconvincing since nothing would have prevented him from issuing cheque for the entire amount of Rs.60,000/- even assuming that the total sale consideration agreed was Rs.4,60,000/-. The best person to prove that consideration was paid to second plaintiff at her house on 11.06.2004 itself was the son-in-law of appellants or the second defendant herself. No explanation is forthcoming in not examining any of these two persons. It is clear from the testimony of PW3 and admission from DW1 that the scribe was arranged by the plaintiffs. This is another circumstance which indicates that vendors were taking a lead role in the transaction, possibly R.F.A.No.300/2013 ## -:16:- because it was intended to be different from a usual sale. 23. Ext.A7 series cheques issued in the name of first plaintiff drawn in a bank situated in Abu Dhabi by first defendant represents an aggregate amount of Rs.1,82,120/-, which according to plaintiffs, was loan advanced to first plaintiff at Abu Dhabi. The dates in Ext.A7 series cheques show that they were drawn subsequent to Ext.A4 sale deed. The onus of proof shifts to the appellants to show the circumstances under which Ext.A7 series cheques were drawn. The contention that these transactions evidenced personal borrowings made by first plaintiff from first defendant has only remote probability when tested in the light of the fact that the appellants did not get possession of the suit property and building and further the evidence as to payment of consideration on the same date of Ext.A4 is unreliable. 24. There is another incongruity in the contention of first defendant that the first plaintiff had issued an undated cheque for Rs.3,00,000/- subsequent to Ext.A4. DW1 said that R.F.A.No.300/2013 ## -:17:- cheque for Rs.3,00,000/- was drawn by first plaintiff in discharge of petty borrowings which telescoped into a larger amount of Rs.3,00,000/-. If this is true, the amount of Rs.3,00,000/- must be in addition to amounts covered by Ext.A7 series cheques. What are those petty transactions which telescoped into a larger amount of Rs.3,00,000/- are not disclosed anywhere either in the pleadings or in the testimony of PW1. Taking the broad probabilities of the case, it is to be assumed that Ext.A7 series cheques (06 in numbers) were issued by first defendant towards payment of loan at the request of the first plaintiff. This is the view taken by the trial court also which I do not have any reason to disagree with. 25. It is also pertinent to note that in spite of a large amount of loan outstanding in favour of the first defendant, he did not take any legal steps for enforcing repayment of debt or recovering the same from the first plaintiff. This also casts doubt on the plea of the appellants that Ext.A7 series cheques are evidence of independent personal borrowings. The total evaluation of broad R.F.A.No.300/2013 ## -:18:- circumstances of the case brings out that Ext.A4 sale deed was executed on 11.06.2004 only as security for securing repayment of the amount borrowed by first plaintiff and not as a pucca sale deed transferring the rights of the plaintiffs over suit property. The finding of the court below, therefore, that there was promise made by first defendant to reconvey the property on acceptance of the arrears of loan amount with interest, is legal and not liable to be interfered with. 26. The learned counsel for the appellants submitted the plaint was not drafted in the same line of a suit for specific performance and further there was nothing which could warrant exercise of any discretionary power of the court under Section 20 of the Specific Relief Act in favour of the plaintiffs. I find, looking at the plaint contentions as a whole, that plaintiffs have contended in the plaint that they have been ready and willing to discharge the loan liability with interest and despite the readiness and willingness, the appellants have refused to reconvey the property questioning the right of the plaintiffs to demand R.F.A.No.300/2013 ## -:19:- reconveyance. In my opinion, necessary pleadings have been made in the plaint. 27. It has come out in evidence that plaintiffs are in occupation of the building and in physical possession of the suit property. In such a case, there is no reason why the discretion should not be exercised in their favour. Applying the theory of comparative hardship and balance of convenience also, I am of the opinion that the appellants are liable to reconvey the property. I do not find any legitimate reason to interfere with the impugned judgment and decree, except to the extent it declared title of the plaintiffs while ordering the appellants to reconvey the suit property to the plaintiffs. It is quite unnecessary and superfluous in the facts of the case. In the result, appeal is disposed of modifying the impugned judgment and decree as follows: The appellants will reconvey the plaint schedule property in favour of the plaintiffs on executing sale deed on receipt of Rs.1,82,120/with 10% interest from 07.08.2004 till the date of execution of the deed. The appellants are permanently restrained from trespassing into the R.F.A.No.300/2013 ## -:20:- plaint schedule property and interfere with the possession and residence of the plaintiffs and also from committing any waste or mischief therein. If the appellants failed to execute sale deed as directed above, the plaintiffs will apply for execution of the deed through court. If the respondents fail to deposit the amount within one month from today, the appellants would be entitled to move the court below under Section 28 of the Specific Relief Act and seek appropriate reliefs. Both parties will suffer their costs in appeal. All pending interlocutory applications will stand closed. Sd/- ## T.V.ANILKUMAR,JUDGE DST //True copy// P.A.To Judge