Moly Dennis v. George & John Dennis

**RFA.No.649 OF 2007** **1** RFA.649/2007 1 **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE SHIRCY V.** **TUESDAY, THE 02ND DAY OF JUNE 2020 / 12TH JYAISHTA, 1942** ## **RFA.No.649 OF 2007 (INDIGENT)** **AGAINST THE JUDGMENT IN OS 670/2003 DATED 15-07-** **2006 OF II ADDITIONAL SUB COURT,ERNAKULAM** **APPELLANT/2ND DEFENDANT:** **MOLY DENNIS, W/O. JOHN DENNIS, THAIPARAMBIL HOUSE, VENNALA, ERNAKULAM.** **BY ADV. SRI.S.B.PREMACHANDRA PRABHU** **RESPONDENTS/PLAINTIFF & DEFENDANT NO. 1:** **1. GEORGE, S/O. PEEYUS, PUTHUKADPARAMBIL HOUSE, VENNALA P.O., COCHIN.** **2 JOHN DENNIS, S/O.JOSEPH** **THAIPARAMBIL HOUSE, ST.BENEDICT ROAD, THRIKANARVATTOM DESOM, ERNAKULAM NORTH.P.O.** **R1 BY ADV. SRI.PEEYUS A.KOTTAM** **THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 29-05-2020, THE COURT ON 02-06-2020 DELIVERED THE FOLLOWING:** **RFA.No.649 OF 2007** **2** ## **JUDGMENT** **Dated this the 2nd day of June 2020** Feeling aggrieved and dissatisfied with the judgment and decree dated 15.7.2006 in O.S.No.670/2003 on the file of the Sub Court, Ernakulam, the second defendant has preferred this appeal. The respondent/plaintiff filed the suit for declaration of a document as null and void, recovery of possession of property and injunction. The suit was partly decreed by the learned Sub Judge. 2. The facts leading to present appeal in nutshell are as under :- The plaintiff/respondent was the owner of the plaint schedule property having an extent of 4.026 cents comprised in Survey No.56/3 of Edappally Village. He entered into an agreement for sale of the property with the first defendant on 25.4.2002 fixing the total sale consideration as Rs.7,00,000/-. An advance of Rs.25,000/was paid by the first defendant to the plaintiff. The plaintiff had liability **RFA.No.649 OF 2007** **3** with District Co-operative Bank, Ernakulam (for short 'the bank') and for the same the plaint schedule property was mortgaged with the bank. As per the terms of the agreement the first defendant had to clear off the liabilities pending with the bank and to pay the balance sale consideration to him. It was agreed that the sale deed would be registered on 30.4.2002 before the SRO Edappally. On 30.4.2002 the first defendant informed that he had arranged the balance sale consideration. After registration of the document (sale deed No. 1800/2002) the first defendant took the plaintiff to Polakkulam Tourist Home for handing over the balance sale consideration, accompanied by his friends namely Sivanandan, John Koshy, Shemy and five others in a Tata Sumo vehicle and they took him to a room and had food from there. But, later they threatened him and forced him to sign in certain papers, after detaining him in a room for about three hours. The balance sale consideration to be paid was not paid to the plaintiff by the first defendant and hence, the sale deed No.1800/2002 of SRO, Edappally has no legal validity. It was executed under fraud, undue influence, misrepresentation and coercion and therefore the document has to declared as null and void and grant decree in favour **RFA.No.649 OF 2007** **4** of the plaintiff to recover possession of the plaint schedule property. A decree of injunction restraining the defendants from alienating the property and an alternative prayer for recovery of balance sale consideration were also sought for. 3. The first defendant remained exparte. The contesting defendant is the second defendant, his wife and she resisted the plaint claim contending that the entire amount due to the plaintiff for execution of the sale deed for the property was paid to him and the defendants were put in possession of the property. The plaintiff has no manner of right over the plaint schedule property after execution of the sale deed. It was further contended that in fact before execution of the sale deed there was an agreement for sale of the property between the plaintiff and one Sivadasan. That was to sell the plaint schedule property with the incomplete building therein. Thereafter Sivanandan completed the construction of the building, but he could not purchase the property and then the defendants agreed to purchase the property. On 5.6.2002 an agreement was executed between the defendants and the plaintiff and a power of attorney was executed by the plaintiff in favour of the first defendant. **RFA.No.649 OF 2007** **5** It was further agreed that the original sale deed will be kept by a mediator till the loan amount was settled. Accordingly, the sale deed was kept by one Adv. Anil Kumar and the photocopy of the document alone was handed over to the defendants. After purchase of the property, instalments due to the Co-operative bank pending against the plaintiff was also paid by the defendants. So, further amount is not due to the plaintiff. The second defendant had obtained electric connection and telephone connection to the building and she is remitting the electric charges of the building in the property. Now the first defendant had deserted the second defendant. The allegation that the document was executed without free will as a result of coercion and undue influence are absolutely false and with the above contentions prayed for dismissal of the suit. 4. Before the court below the plaintiff was examined as PW1 and Exts.A1 to A4 were marked on the side of the plaintiff and DWs 1 and 2 were examined and Exts.B1 to B16 were marked on the side of the defendants. Exts.X1 to X6 were also marked. 5. The court below after evaluation of the materials on record decreed the suit in part permitting the plaintiff to recover **RFA.No.649 OF 2007** **6** Rs.4,72,000/- as value of sale consideration of the property with interest. Feeling aggrieved, the said judgment are decree are assailed by the second defendant. 6. Heard Adv. S.B. Premachandra Prabhu, the learned Counsel for the second defendant/appellant and Adv. Peeyus A Kottam, the learned Counsel for the plaintiff /respondent. 7. For the sake of convenience the parties are referred to as the plaintiff and the defendant. 8. The property involved in this case is having an extent of 4.026 cents comprised in Sy No.56/3 of Edappally South Village. By Ext.X1 Sale deed No.1800/02 of SRO, Edappally it stands in the name of the defendants. The second defendant is the wife of the first defendant. The plaintiff has filed the suit for a declaration that the said sale deed is null and void as it is vitiated by fraud, undue influence and coercion. The plaintiff has in fact admitted the execution of the sale deed in favour of the defendants. But his case is that the sale consideration fixed for the plaint schedule property was Rs.7,00,000/- and the advance amount of Rs.25,000/- had been **RFA.No.649 OF 2007** **7** paid. But the defendants have not complied with the terms and conditions of the agreement as the liabilities created by the plaintiff by mortgaging the property before the District Co operative Bank, Ernakulam was not settled by the defendants and also the entire sale consideration was not paid by them though the document was registered before the Sub Registrar's Office, Edappally on 30.4.2002. So the plaintiff's contention is that the document was executed without payment of the entire sale consideration. But admittedly, the possession of the property is with the defendants. Ext.B11 the telephone bill for availing of telephone connection in the residential house situated in the property, Ext.B13 the Consumer Registration Card and Ext.B14 the electricity bill etc stands in the name of the defendants with respect to the building in the plaint schedule property. The case of the plaintiff is that originally an agreement was executed by him with one Sivanandan while the construction of the building was going on. As he could not pay the entire sale consideration Ext.A1 agreement was executed between the plaintiff and the defendants for sale of the plaint schedule property and thus the document under challenge was executed. At the outset it is to be **RFA.No.649 OF 2007** **8** noted that though the plaintiff had raised a contention that the document is void in the eye of law as it was executed by playing fraud, coercion, misrepresentation etc, sufficient pleadings are not available in the plaint. How it got registered before the SRO before payment of the entire sale consideration and details of the fraud played upon him by the defendants were not detailed in the plaint with certainty. Vague or general plea of fraud can never serve the purpose. Chapter VI of the Code of Civil Procedure deals with pleadings generally. Order VI Rule 4 is extracted hereunder as: - “ **4. Particulars to be given where necessary** .- In all cases in which the party pleading relies on any misrepresentation, fraud, breach of trust, wilful default, or undue influence, and in all other cases in which particulars may be necessary beyond such as are exemplified in the forms aforesaid, particulars (with dates and items if necessary) shall be stated in the pleading.” 9. Order V1 Rule 4 CPC makes it very much clear that a party who challenges the genuineness of a document by alleging fraud, coercion etc have to give particulars, specifically with certainty in the pleadings and if the pleadings are vague and not specific, no amount of evidence would rescue the party or salvage the position. Therefore Order 6 Rule 4 CPC requires that complete particulars of **RFA.No.649 OF 2007** **9** fraud shall be stated in the pleadings. Since the plaintiff challenged the sale deed on the allegation of fraud, the onus was upon him to prove the same. 10. In **General Manager, Electrical Rengali Hydro Electric Project, Orissa** v. **Sri. Giridhari Sabu** [(2019) 10 SCC 695] it was held by the Apex Court as follows: “39. Therefore, in a civil suit, if the plaintiff alleges fraud, misrepresentation or undue influence, he is obliged to give particulars. An allegation of fraud is a matter of a grave nature. So is the allegation of undue influence and misrepresentation. The intention underlying Order VI R.4 of the CPC is that the opposite party is to be put on sufficient notice as to the case which he is called upon to meet. The law loathes, parties to the lis being taken by surprise resulting in the violation of the basic principle of justice that a party should be able to effectively meet the case set up against him. What is fraud? Is it the same as misrepresentation? ## Paragraph 44 of the said decision reads as follows: “44. A perusal of the definition of the word “fraud”, as defined in S.17 of the Contract Act, would reveal that the concept of fraud is very wide. It includes any suggestion, as a fact, of that which is not true, by a person who does or does not believe it to be true. It may be contrasted with S.18(1) f the Contract Act which, inter alia, defines **RFA.No.649 OF 2007** **10** “misrepresentation”. It provides that it is misrepresentation if a positive assertion is made by a person f that which is not true in a manner which is not warranted by the information which he has. This is despite the fact that he may believe it to be true. In other words, in fraud, the person who makes an untruthful suggestion, does not himself believe it to be true. He knows it to be not true, yet he makes a suggestion of the fact as if it were true. In misrepresentation, on the other hand, the person making misrepresentation believe it to be true. But the law declares it to be misrepresentation on the basis of information which he had and what be believed to be true was not true. Therefore, the representation made by him becomes a misrepresentation as it is a state which is found to be untrue. Fraud is committed if a person actively conceals a fact, who either knows about the fact or believes in the existence of the fact. The concealment must be active.” 11. On a reading of the plaint, it is difficult to conclude that all the required details have been detailed in the pleadings. In fact the essential ingredients are conspicuously absent. Keeping in view of aforementioned facts, the evidence have to be evaluated in detail. No doubt a civil suit is to be decided by preponderance of probabilities. The plaintiff in his attempt to prove his case has produced Ext.A3, a copy of a complaint submitted by him before the police to show that he had filed the complaint regarding the incident in which he was put under threat by the first defendant along with **RFA.No.649 OF 2007** **11** Sivanadan and some others so as to evade payment of the balance sale consideration. At first it is to be noted that no evidence was adduced to show that such a complaint was preferred by him against the defendants and others before the police. Like that no evidence was adduced to show that any follow up action was taken up by the plaintiff or an FIR was registered by the police or an investigation was initiated at the instance of the plaintiff with regard to the alleged incident. He had no case that he had initiated any action for the failure to register his case. So no cogent or reliable evidence, was tendered by the plaintiff to discard a registered sale deed on the alleged ground of fraud or undue influence. 12. But it is a fact that the original sale deed was not produced by the contesting defendant who was examined as DW1. Ext.X1 the original sale deed was produced by DW2 one Adv.P.V Anil Kumar. Ext.B1 is the copy of a document styled as as a settlement agreement. She relies upon this document to substantiate her case. The same was seen executed on 5.6.2002 by the defendants as 1[st] party and the plaintiff as the 2[nd] party. The recitals would show that the parties (the defendant, the 1[st] party and the plaintiff, the 2[nd] party) **RFA.No.649 OF 2007** **12** have specifically stated that though sale deed No.1800/2002 was executed and possession of the property was handed over to the 1[st] party by the 2[nd] party, the loan availed by 2[nd] party/the plaintiff from District Co-operative Bank, Ernakulam remain unsettled and that amount have to be settled/ paid by the 1[st] party, the defendants. Therefore, the agreement indicate that the amount due in the account of the plaintiff have to be paid by the defendants as the title deed of the plaintiff was deposited before the bank and the loan has to be cleared off by the defendants. Of course the first defendant has not taken steps to bring the original document before the court especially when the plaintiff had denied it. It is significant to note that though the plaintiff denied the execution of the same did not care to examine the witnesses cited therein even as an attempt to show that such an agreement was not executed by the parties. In fact this agreement clearly reveals that the entire amount pending in the account of the plaintiff towards the bank have to be paid by the defendants and the same would be treated as the balance sale consideration for the property, as value of the property except the debt towards bank that was paid by the defendants. Therefore, it indicates that the **RFA.No.649 OF 2007** **13** understanding between the parties as per this agreement was, to adjust the amount due to the bank from the plaintiff, have to be remitted by the defendants and that will be treated as the balance sale consideration for the plaint schedule property. When the original is not before the court whether other reliable evidence such as specific events and facts are available to substantiate the same, is the question to be answered. In this regard it is pertinent to note that Ext.B2 is a receipt dated 30.3.2006 issued by the Ernakulam District Co-operative Bank in favour of the first defendant. This document would show that an amount of Rs.1,85,000/- was credited in the account of the plaintiff (account suit 578/108) and the said amount was remitted by the second defendant for the plaintiff on 30.3.2006. Exts. B4 to B10 are also such receipts issued by the Bank for the amount remitted by the second defendant for the plaintiff with respect to the very same loan account pending in the name of the plaintiff. Ext.B3 is an acknowledgment issued by the Branch Manager of the Palarivattom branch of Ernakulam District Co operative Bank dated 30.3.2006, issued to Head Office at Kakkanad intimating the closure of the loan availed by the plaintiff and also forwarding the request **RFA.No.649 OF 2007** **14** submitted by the 2nd defendant, who remitted the loan amount, for releasing the documents submitted by the plaintiff for availing the loan. These documents would clearly reveal that the loan which was pending in the account of the plaintiff was settled by the second defendant and the account was closed and subsequently a letter was submitted by her to get release of the documents submitted by the plaintiff to avail the loan. 13. It is significant to note that though the plaintiff had denied Ext.BI no step was taken to prove that his signature was forged in the document. As referred above Exts.B2 to B10 would establish the fact that the loan which was availed by the plaintiff by mortgaging the plaint schedule property was settled by the second defendant on the basis of Ext.B1 and thus the entire balance amount due to the bank for the loan transaction was paid by the second defendant. So no adverse inference could be drawn against the second defendant for the failure to take steps to bring forth the original of Ext. B1 before the court, by giving direction to the plaintiff. But it is pertinent to note what was paid to the bank was only Rs.2,06,000/- (B2 to B10). **RFA.No.649 OF 2007** **15** 14. The contesting defendant would submit that the balance sale consideration for the plaint schedule property due to the plaintiff was repaid by the defendants by remitting the amount by settling his debt pending towards the bank as recited and thereby complied with the terms of the agreement. The court below without going into the evidence available on record, wrongly concluded that though the plaintiff received a part of the sale consideration, the full consideration of the property was not paid and so the defendants are liable to pay sum of Rs.4,72,000 also as the balance sale consideration. The recitals in Ext.B1 is to the effect that the balance sale consideration which is to be remitted by the defendants is only the loan amount pending against the plaintiff before the District Cooperative Bank and nothing more. That is explicitly revealed from the other evidence on record. 15. DW2 was the mediator who was holding the original title deed ie. Ext X1. Ext.X2 is a receipt issued by the plaintiff to DW2. The recitals in the receipt is to the effect that balance sale consideration in cash had been paid on execution of the said agreement dated 5.6.2002 and further that the defendants had to **RFA.No.649 OF 2007** **16** settle the liability pending before bank and till that the sale deed have to be retained by DW2 in his possession and after settlement of the loan account, the document will be returned to the defendants. It is also to be noted that after execution of Ext.X2 the plaintiff had issued Ext.X3 power of attorney in favour of the first defendant for remitting the loan amount and to settle his liability that was pending in the bank. As per Ext X3 the plaintiff had given the right to settle debt pending and it is made clear that, on such settlement, the defendants are at liberty to receive the original title deed from the bank. Ext X4 is the document issued by the Bank on closure of the loan of the plaintiff. Ext. X6 is the original title deed deposited by the plaintiff as security for the loan availed by the plaintiff and it was produced before the court by the bank at the instance of the contesting defendant as per Ext.X5 authorization letter. All these documents would establish the fact that though Ext.X1, the sale deed in favour of the defendants was registered, some amount which was due was paid subsequently and the understanding was also to settle the debt due to the District Co-operative Bank pending towards the loan availed by the plaintiff. By remitting the amount due in the loan **RFA.No.649 OF 2007** **17** account, it is clear that the entire sale consideration had been received by the plaintiff and nothing more was left back so as to realise from the defendants. It is pointed out by the plaintiff that the second defendant failed to take steps to bring forth the original of Ext B1 to prove the execution of the subsequent agreement. But the documents marked as Ext. X2 to X6 would clearly indicate that Ext.B1 is genuine document and therefore the failure to take steps to get the original of Ext.B1 is not at all a ground to draw an adverse inference or to conclude that it was a concocted document. It appears that court below has not paid any attention to the important documents and these important facts referred above. So without proper appraisal and appreciation of evidence the court below concluded that the plaintiff is entitled to realise Rs.4,72,000/- also as part of sale consideration with interest. Apparently, the issue involved in this controversy was not properly decided by the court below. 16. Sale is defined under Section 54 of the Transfer of Property Act as "54. "Sale" defined:- "Sale" is a transfer of ownership in exchange for a price paid or promised or part-paid and part promised." **RFA.No.649 OF 2007** **18** The evidence on record indicates that the price promised for transfer was paid and transfer has taken place. ## 17. In **Kavukutty and Another v Baby and others (2015** ## **(5) KHC 642 )** this court has observed as follows : 10. The next aspect to be considered is whether the plaintiffs are entitled to the decree sought by them for the inability of defendants to establish that Ext.A4 is not supported by consideration. S.54 of the Transfer of Property Act defines sale as a transfer of ownership in exchange for a price paid or promised or part-paid and part-promised. The definition indicates that in order to constitute a sale, there must be a transfer of all rights in the property by the seller to the buyer. The vendor cannot retain any part of his interest or right in the property or else it would not be a sale. The price constitutes an essential ingredient of the transaction of sale. The words 'price paid or promised' indicate that actual payment of the price is not a sine qua non for the completion of the sale, if the parties intend to transfer the property. Even if the document is executed and registered without payment of the price, the sale would be complete. In such cases, if consideration is not paid, the remedy of the vendor would be institute a suit for recovery of the sale price. Normally, the ownership and title to the property will pass to recovery of the sale price. Normally, the ownership and title to the property will pass to the purchaser or registration of the sale deed. The same however, is not an invariable rule. The real test is the intention of the parties. In order to constitute a sale, the parties must intend to transfer the ownership of the property and to pay the price either in praesenti or in futuro. Though the registration is prima facie proof of an intention to transfer the **RFA.No.649 OF 2007** **19** property, it is not proof of operative transfer. In case of disputes, the intention is to be gathered from the recitals in the sale deed, conduct of parties and the evidence on record [See Vidhadhar v. Mankikrao, 1999 KHC 1091, AIR 1999 SC 1441 : 1999 (3) SCC 573 & Kaliaperumal v. Rajagopal, 2009 KHC 4507 : AIR 2009 SC 2122 : 2009 (4) SCC 193 : 2009 (77) AIC 167 : 2009 (3) MPLJ 595 : 2009 (4) Mah LJ 706 : 2009 (4) SCALE 60 : 2009 (3) CHN 236].'' 18. It is significant to note that, as per Ext. X3 power of attorney, the first defendant was authorized by the plaintiff to receive the documents from the bank on payment of the arrears pending towards the loan availed by him to complete the transfer of ownership of the property. ## 19. In **Mathew v. Giji Mathew [2018 (1) KLT SN 7** ## **(C.No.11)]** it was observed by this court as; “17. The Power of Attorney is seen attested in the State of Illinois and is authenticated by a notary public which is enough for the purpose of raising a presumption under S.85. When the Sub Registrar had registered Ext.A2 document, it cannot be contended that he had not seen Ext.A3. Therefore, existence of the original of Ext.A3 is a fact which raises a presumption of execution and authentication. Consequently, the registration also becomes valid under law. 18. When a person challenges the Power of Attorney, it is for **RFA.No.649 OF 2007** **20** that person to rebut the presumption available under S.85. Learned counsel for the respondent herein tried to impress upon us by contending that there is nothing to indicate that the notary public who had attested the power of attorney was having the authority to do so at the relevant time. But in the absence of any evidence to disprove a presumption that could be raised in terms of S.85, which is rather a settled position of law as mentioned in the judgments afore stated, from the available evidence, we are unable to conclude that the petitioner had discharged the burden to rebut the said presumption. The Court below have wrongly cast the burden of proof on the 2[nd] respondent without referring to the statutory presumption available under S.85 of the Evidence Act.” ## Section 85 of the Evidence Act reads as follows: “85. Presumption as to power of attorney – The Court shall presume that every document purporting to be a power of attorney, and to have been executed before, and authenticated by, a Notary Public, or any court, Judge, Magistrate, Indian Consul or Vice Consul, or representative of the Central Government was so executed and authenticated ## 20. In **Jugraj Singh and another v. Jaswant Singh and** ## **others, [AIR 1971 Supreme Court 761],** the Apex court held that, “6. It is plain that presentation for registration could be, either by the Principal or by a duly constituted attorney. It is equally plain that a proper power of attorney duly authenticated as required by law had to be made before power could be conferred on another either to **RFA.No.649 OF 2007** **21** execute the document or to present it for registration. That indeed is the law. 7. **** There is a presumption of regularity of official acts and we are satisfied that he must have satisfied himself in the discharge of his duties that the person who was executing it was the proper person. This makes the second power of attorney valid and effective both under Section 85 of the Indian Evidence Act and Section 33 of the Indian Registration Act.” 21. Here **,** DW2 an Advocate who interfered in the transaction had produced Ext.X1, the original sale deed in favor of the defendants and explained the circumstances, how he happened to be in possession of the same. If the circumstances and the evidence are considered in its totality, it could be seen that no fraud or misrepresentation emerge, but actually what emerge from the events unfolded are that, the parties acted in common interest to sell the property to the defendants and to certain extent to save the plaintiff from the debt and prevent the taking over of the property by the Bank to recover the loan due from the plaintiff. Therefore, there is absolute transfer of the ownership of the property in consideration for money, by the plaintiff, the seller who had legal title to it, to the defendants, as the price paid and price promised stand on equal footing. Though payment of part of consideration was postponed with **RFA.No.649 OF 2007** **22** the definite terms of agreement that in the event that the debt/loan pending in the name of the plaintiff will be settled by the defendants, there was nothing illegal or contrary to public policy. The said stipulation was not made in the sale deed but it was mentioned in the agreement as the terms and conditions settled between the parties. Intention to deceive quite necessary to prove fraud, is conspicuously absent in the instant case and as referred above details and particulars of fraud required to be pleaded specifically are totally absent on record. I have carefully considered the submissions of the learned counsel appearing for both sides and perused the materials placed on record. Considering the facts on record, on a balance of probabilites, I find that the Judgment and decree are liable to be set aside and the suit is only to be dismissed. The defendants are entitled to get back the original sale deed of their property marked as Ext.X1 which was earlier in the possession of DW2 as the mediator, from the court, as the title holders of the property. The second defendant, the wife of the first defendant who is contesting the case, is entitled to get back the document from the court on proper application. The Court below has to return the document to her at the **RFA.No.649 OF 2007** **23** earliest, on request. Resultantly, the appeal succeeds and is hereby allowed. The parties shall bear their respective costs. **Sd/SHIRCY V. JUDGE** **smm** **RFA.No.649 OF 2007** **24** The order dated 02.02.2022 in RFA No.649/2007 (Indigent) that: “Heard the learned counsel for the appellant. Since the appellant was allowed to proceed with the appeal as an indigent person and the appeal stands allowed, the court fee has to be realized. But due to an inadvertent omission, it was not mentioned in the judgment. Hence, the judgment dated 02.06.2020 is modified permitting to realize the court fee. Registry is directed to recover the court fee as per law.” is appended to the judgment dated 02.06.2020 in RFA No.649/2007(Indigent) Sd/- Deputy Registrar